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CITE

Unreported Judgment

Reichman v Legal Services Commissioner[2017] QDC 158Shanahan DCJ
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Reichman v Legal Services Commissioner[2017] QDC 158

DISTRICT COURT OF QUEENSLAND

CITATION:	Reichman v Legal Services Commissioner; Legal Services Commissioner v Reichman [2017] QDC 158
PARTIES:	JACOB REICHMAN (appellant) v LEGAL SERVICES COMMISSIONER (respondent) and LEGAL SERVICES COMMISSIONER (appellant) v JACOB REICHMAN (respondent)
FILE NO/S:	3869/16; 3947/16
DIVISION:	Appellate Division
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	13 June 2017
DELIVERED AT:	Brisbane
HEARING DATE:	12 April 2017
JUDGE:	Shanahan, DCJ
ORDERS:	Appeal against conviction dismissed Appeal against sentence dismissed
CATCHWORDS:	PROFESSIONS AND TRADES – LAWYERS – UNQUALIFIED PERSONS – ACTING AS SOLICITOR - where the appellant was found guilty after trial of engaging in legal practice when he was not an admitted Australian Legal Practitioner contrary to s 24 Legal Profession Act (Qld) 2007 – where the appellant was sentenced to a fine with conviction recorded – whether the appellant had been “engaging in legal practice” CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – whether impugned conduct amounts to a person carrying on or exercising the profession of law and thus “practice law” and “engage in legal practice” – whether the learned Magistrate had drawn impermissible adverse inferences against defendant for not calling a witness amounting to a miscarriage of justice – CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST CONVICTION – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the prosecution (Legal Service Commission) appeals against sentence – where the appellant submitted the circumstances of the charge were more serious than indicated by the learned Magistrate at sentence – whether the Magistrate erred in rejecting that, damage had not been done to the client by the respondent’s actions of “engaging in legal practice” – whether the imposition of a fine imposes sufficient protective effect – whether the sentence was manifestly inadequate Child Protection (Offender Reporting) Act 2004 (Qld) Evidence Act 1977 (Qld), s 15(2)(a) Justices Act 1886 (Qld), s 222, s 223, 225(1) Legal Practice Act 1996 (Vic) Legal Profession Act 2007 (Qld), s 24(1), s 5(1), s 22,s 85 Police Powers and Responsibility Act 2000 (Qld), s 418, s 419, s 424(2)(d) Commissioner of Police v Al Shakari [2013] QCA 319 Cornall v Nagle [1995] 2 VR 188 Downey v O'Connell [1951] VLR 117 DPP v Bright (2006) 163 ACR 538 Dyer v R (2002) 210 CLR 285 Felman v Law Institute of Victoria [1998] 4 VR 324 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Lacey v Attorney-General(Qld) (2011) 242 CLR 573 Legal Services Commissioner v Beames [2012] QSC 327 Legal Services Commissioner v Bradshaw [2009] LPT 21 Legal Services Commissioner v Walter [2011] QSC 132 Legal Services Commissioner v McKee (Unreported, Magistrates Courts of Queensland, Magistrate Smith, 11 December 2012) Legal Services Commissioner v Seymour (Unreported, Magistrates Courts of Queensland, Chief Magistrate Butler, 18 January 2011) Police v Da Costa (Unreported, Magistrates Courts of Queensland, Magistrate Cull, 4 November 2009) R v Lawley [2007] QCA 243 Re Foster (1950) 50 SR (NSW) 149 Re Sanderson; ex parte the Law Institute of Victoria [1927] VLR 394 Robinson Helicopter Co Inc v McDermott [2016] HCA 22
COUNSEL:	In file no. 3869/16 S Holt QC for the appellant D Holliday for the respondent In file no. 3947/16 D Holliday for the appellant S Holt QC for the respondent
SOLICITORS:	In file no. 3869/16 Whitehead Crowther, Lawyers for the appellant Legal Services Commission for the respondent In file no. 3947/16 Legal Services Commission for the appellant Whitehead Crowther, Lawyers for the respondent

[1]
After a two day trial in the Magistrates Court, Jacob Reichman was convicted of an offence against s 24(1) of the Legal Profession Act 2007 (LPA). He was sentenced to a fine of $1,500 with a conviction recorded and ordered to pay professional costs and filing fees.

[2]
The charge on which he was convicted was that “on diverse dates between 17 September 2013 and 21 January 2015 at the Gold Coast in the State of Queensland did, contrary to s 24(1) of the Legal Profession Act 2007, engage in legal practice when he was not an Australian legal practitioner.”

[3]
Mr Reichman has appealed against the conviction. The Legal Services Commissioner (the prosecutor) has appealed against the sentence.

The conviction appeal

[4]
Leave, which was not opposed, was granted to amend the grounds of appeal on the hearing of the appeal.

[5]
The grounds of appeal are:

The Magistrate misapplied the test of “engaging in legal practice” in s 24 of the Legal Professional Act 2007.

The Magistrate wrongly drew adverse inferences against the appellant because of an alleged failure to call a person as a defence witness.

The Nature of the Appeal against conviction

[6]
The appeal is brought pursuant to s 222 Justices Act 1886. Pursuant to s 223 of that Act, the appeal is by way of rehearing on the evidence given in the proceeding below. New evidence can be adduced by leave. No such leave was sought by either party. The nature of the appeal is a rehearing in the technical sense consisting of a review of the evidence below rather than a fresh hearing. To succeed on such an appeal, an appellant must establish some legal, factual or discretionary error (Commissioner of Police v Al Shakari [2013] QCA 319 at [65]; Teelow v Commissioner of Police [2009] 2 Qd R 489 at 493).

[7]
On such an appeal, the appellate judge is required to make his or her own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the Magistrate’s view (Fox v Percy (2003) 214 CLR 118; Rowe v Kemper [2009] 1 Qd R 247).

[8]
In Robinson Helicopter Co Inc v McDermott [2016] HCA 22 at [43] the High Court stated:

“A Court of Appeal conducting an appeal by way of rehearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the Court of Appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.”

[9]
Section 225(1) Justices Act 1886 provides that on the hearing of the appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

Meaning of “Engage in legal practice”

[10]
Section 24(1) of the LPA provides that “a person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner.” An “Australian legal practitioner” is defined in s 6 to mean an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate. Section 5(1) LPA provides that an “Australian lawyer” is a person who is admitted to the legal profession under this Act or a corresponding law. It is plain that the respondent does not fall within the definition of being an Australian legal practitioner. That was conceded at the trial.

[11]
Section 24 LPA appears in Pt 2.2 of the Act entitled “Reservation of legal work”. Section 22 provides that the main purposes for Pt 2.2 are:

(a)
to protect the public interest in the proper administration of justice by ensuring that legal work is carried out only by those who are properly qualified to do so, and

(b)
to protect consumers by ensuring that persons carrying out legal work are entitled to do so.

[12]
There is no general definition of the term “legal practice” in the LPA. There is a definition in Schedule 2 of the Act that relates to Pt 2.5 (s 85) which is irrelevant for present purposes. Schedule 2 provides that “engage in legal practice includes practice law”.

[13]
There has been some consideration in the case law of the term “engage in legal practice” in s 24(1) of the LPA.

[14]
In Legal Services Commissioner v Bradshaw [2009] LPT 21, Fryberg J considered the term in relation to a complaint under s 24(1) concerning a barrister who, at the relevant time, did not hold a practising certificate. The complaint related to a letter sent to a practising barrister by the accused in relation to a civil matter involving his wife. Fryberg J found that it was clear that the accused “was acting as a lawyer would act on his wife’s behalf”. That, however, was insufficient to prove the charge under s 24 of the Act (p 1-13). The issue was whether the accused engaged in legal practice or practised law (as per Schedule 2). Fryberg J noted that neither party had cited any authority about the meaning of the expressions “engage in legal practice” or “practise law”. He found that both those expressions were the professional equivalent of the expression “carry on business” which was used in relation to activities other than professional activities. “Practising law is an activity which has the characteristics of carrying on the business of being a lawyer” (p 1-14). Fryberg J set out a number of indicia that would be relevant: evidence of continuity of repeated acts; evidence of payment for those acts; evidence of seeking business from members of the public or at least from other lawyers; evidence of a business system; evidence of maintaining books and records consistent with the existence of a practice and evidence of a multiplicity of clients. He found none of those things were in evidence before him. The sending of the letter which was consistent in its terms and construction with what a lawyer would send did not demonstrate that the accused had engaged in legal practice.

[15]
In Legal Services Commissioner v Walter [2011] QSC 132, Daubney J considered an application for an injunction to restrain the respondent from engaging in conduct which would constitute an offence against s 24(1) LPA. Daubney J considered the meaning of the phrase “engage in legal practice” by reference to dictionary definitions and decided cases. He said:

“[12] The noun “practice” and the verb “practise” are, in my view, terms of art when used in the context of the professions. The Macquarie Dictionary relevantly defines “practice” as: “6. the exercise of a profession or occupation, especially law or medicine”, and “practise” as: “7. to pursue a profession, especially law or medicine”.

[13] In Felman v Law Institute of Victoria [1998] 4 VR 324, the Victorian Court of Appeal considered the term “engage in legal practice” in the Legal Practice Act 1996 (Vic). Kenny JA said, at 352:

“In my opinion, the expression to “engage in legal practice” in s. 314 and elsewhere signifies “to carry on or exercise the profession of law”. Reference to the definitions of “engage” and “practice” in the Oxford English Dictionary supports the view that this is the ordinary and natural meaning of the expression. The carrying on of the profession of law is done by none other than a “legal practitioner”. Accordingly, in my view, the expression “engage in legal practice” means “engage in legal practice as a legal practitioner”, the italicised words being implicit in the notion of legal practice.”

[14] This relatively broad approach to construing the term “engage in legal practice” is consistent with traditional notions of legal practice (i.e. those which were in place prior to the introduction of the LPA and similar legislation in other jurisdictions). In Downey v O'Connell [1951] VLR 117, Gavan Duffy and O'Bryan JJ said at 122:

“The common conception of a practising barrister or solicitor is that of a legally qualified barrister and solicitor who holds himself out to the public in general as willing to act as a direct and responsible personal confidential legal adviser, and to do, and be directly responsible for, legal work generally and who has clients for whom he does legal work in that way.”

[15] More recently, in Cornall v Nagle [1995] 2 VR 188, J D Phillips J, in construing the Legal Profession Practice Act 1958 (Vic), identified that a person who was neither admitted to practice law nor enrolled as a barrister and solicitor may be regarded as acting or practising as a solicitor in one of three ways:

By doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor and by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor; (in Re Sanderson; ex parte the Law Institute of Victoria [1927] VLR 394 at 397).

By doing something that is positively proscribed by legislation or rules of court unless done by a duly qualified legal practitioner;

By doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law.

[16] In the case before him, J D Phillips J considered it unnecessary to go beyond an example of the giving of legal advice as part of a course of conduct and for reward as an example of the third category of conduct, but said, at 208:

“In my opinion, the giving of legal advice, at least as part of a course of conduct and for reward, can properly be said to lie at or near the very centre of the practice of law, and hence the notion of acting or practising as a solicitor ... If the public is to be adequately protected from those lacking relevant qualifications, then, in the context of a regulated legal profession, the giving of legal advice professionally is, I think, to be regarded as exclusively the province of those properly trained in the law and having the necessary expertise. It is thus something required to be undertaken only by the legally qualified, and not by those not properly qualified. Nor, if the protection of the public is to be adequate, can that protection be left to depend (as does the Sanderson test) upon whether the unqualified one declares that he has no legal training ... [B]y prohibiting any unqualified person “acting or practising as a solicitor” s 90 should be taken to encompass the giving of legal advice, at least in circumstances where there is a course of conduct involving the giving of that advice for reward. I go no further than that, only because it is unnecessary to do so in this particular case.”

[16]
Daubney J disagreed with equating practising law with the carrying on of a business as decided by Fryberg J in LSC v Bradshaw. Daubney J preferred the formulation of Kenny JA and held that the terms “engage in legal practice” and “practice law” invoked the notion of carrying on or exercising the profession of law, not the “business” of law. He went on:

“[19] There is a palpable difference between carrying on or exercising the profession of law, on the one hand, and carrying on the business of a lawyer, on the other. At least one of the hallmarks of a profession, apart from special skill and learning, is that the profession has public service as its principal goal. The distinction between a trade, business or occupation and a profession was described by Street CJ in Re Foster (1950) 50 SR (NSW) 149 at 151:

“A trade or business is an occupation or calling in which the primary object is the pursuit of pecuniary gain. Honesty and honourable dealing are, of course, expected from every man, whether he be engaged in professional practice or in any other gainful occupation. But in a profession pecuniary success is not the only goal. Service is the ideal, and the earning of remuneration must always be subservient to this main purpose.”

[20] The factors listed by Fryberg J are, it seems to me, indicia of a person carrying on a professional business. Some or all of those indicia, if present in a particular case, will be relevant to determining whether the person, by carrying on that business, has carried on or exercised the profession of law. But those indicia are not, in my view, determinative. The fact that a person carries out legal work (to use the phraseology of the purposes of Part 2.2, as expressed in s 22) for reward is indicative of a person engaging in legal practice, but is not a necessary pre-condition to a finding that a person has engaged in legal practice.

[21] In short, the fact that a person is engaged in the business of providing legal services is indicative of that person practising law, but a person may be practising law without being in business.” [footnotes omitted]

[17]
Daubney J found that the proper approach to s 24 required a consideration of the impugned conduct to ascertain whether it amounts to the person carrying on or exercising the profession of law, and has thereby practised law. He found that the respondent had engaged, over a significant period of time, in a practice of advising parties to litigation in respect of matters of law and procedure; assisting parties in litigation in the preparation of the cases; drafting court documents on behalf of parties to litigation; drafting legal correspondence on behalf of those parties and purporting to act as a party’s agent in at least one piece of litigation. He noted that each of those matters could be said to lie near the very centre of the practice of litigation law. It was clear that the respondent thereby carried on or exercised the profession of law.

[18]
In Legal Services Commissioner v Beames [2012] QSC 327 Philippides J considered an application for a declaration and an injunction by the LSC in relation to conduct that constituted an offence against s 25 LPA in that the person represented that he was entitled to engage in legal practice although he was not an Australian legal practitioner. The conduct alleged was the respondent’s use of the word “lawyer” as his witnessing qualification on an official form in relation to land title. Philippides J referred to the decision in Walter (above) and the three ways a person may be regarded as acting or practising as a solicitor identified in Cornall v Nagle. She found that the conduct fell under the first of those in that, by including the word “lawyer” next to his purported witnessing qualification, the respondent did something (although that thing was not required to be done exclusively by a solicitor) in such a way as to justify the reasonable inference that the person doing it was a solicitor. Philippides J granted the injunction.

The Trial

[19]
In order to appropriately consider the matter, it is necessary to review the evidence on the trial in some detail.

[20]
The prosecution case was that on 12 separate occasions the appellant attended a police station and described himself as a “legal representative”. Eleven of those occasions involved the appellant attending police stations with suspects in criminal matters and attending on electronic recorded interviews on some of those occasions and on the twelfth occasion the appellant attended an initial meeting with a person with a reporting obligation under the Child Protection (Offender Reporting) Act 2004 (CP(OR) A). On that occasion the appellant signed a form in which he was described as a solicitor. The prosecution case was that by describing himself thus and conducting himself by way of giving legal advice during those occasions, the appellant had committed the offence charged over the timeframe alleged. During that period the appellant was employed as a clerk by a barrister, Christopher Rosser, and it was admitted that the appellant was not an Australian legal practitioner (transcript 1-14).

[21]
A “Table of Particulars and Evidence” was agreed between the parties and provided to the presiding Magistrate. That set out the occasions numbered 1-12. Most of the conduct alleged in the table was electronically recorded and was not in contest in the trial. A number of police officers were called to give evidence.

[22]
Detective Senior Constable S A Orlando (nee Wood) gave evidence that on 14 November 2013 the appellant had attended a police station with a reportable offender under the CP(OR)A (occasion no. 3 on the Table). A person described as a law clerk (Ms S K French) also attended (1-15). The police officer required the appellant and the law clerk to sign a confidentiality form in relation to the information to be obtained from the reportable offender. In the course of filling out the form on a computer, she asked the appellant “are you a solicitor?” to which he replied “yes” (1-15). She also completed the form with the appellant’s details including his full name and date of birth. She also completed a form for Ms French where the officer asked whether she was a solicitor as well and Ms French replied “no, I’m a law clerk”. There was some banter about the older age of Ms French with being a law clerk compared to the age of the appellant. The forms were given to each person and each signed the form (1-15). The form described the appellant as a “support person” in a dropdown menu that only had two options, “interpreter” or “support person”. In the space on the form entitled “relationship, if any, to reportable offender”, the police officer typed in “solicitor” (1-16). The form was tendered on the trial (Exhibit 1). It was a one page form where in two places, the appellant was described as a solicitor. Ms French’s form was also tendered (Exhibit 2).

[23]
A conversation between the reportable offender, the appellant and the police officer, with Ms French present, was then electronically recorded (1-18). The things said by the defendant in that conversation as outlined in the particulars document was accepted as having been said (1-18). Of most relevance the police officer spoke to the reportable offender and said “… and you have some support people here, your solicitors and law clerk.” The appellant said “yes, um Jacob Lazar Reichman 20^th 7^th 1992 as support person legal representative for (the reportable offender)”. Various conversations about peripheral legal topics occurred with the appellant speaking of them with apparent familiarity. At some 32 minutes into the conversation, the police officer said “nearly done” to which the appellant replied “It’s all right. Take your time. We get paid hourly. At six minute increments.” The relevant parts of the recording were played on the trial (1-22).

[24]
Senior Constable Orlando gave evidence of another occasion when she had contact with the appellant. This was in relation to occasion no. 9 on the particulars document where another police officer, Senior Constable J McCafferty had the majority of the conversation (1-23).

[25]
Under cross-examination Senior Constable Orlando could not recall a phone call before the appellant’s attendance to inform her that he was going to attend as a support person (1-24). She recalled the appellant giving her business cards at the conclusion of the conversation but the card she was shown on the trial was not familiar to her (1-25; 34). The appellant asked her to pass the cards on to anybody else that may need legal representation. She later discarded the cards (1-34). The police officer agreed that the conversation where the appellant answered that he was a solicitor did not appear in her statement prepared in relation to this matter (1-29). It was not mentioned because it was on the form she filled out (1-30). This has been clarified with the prosecuting authority by email on 19 August 2016. It was put to her that the form of that clarification spoke of her usual practice. She replied that she could specifically remember the appellant saying to her he was a solicitor (1-32; 34).

[26]
Detective Sergeant D. Anderson gave evidence that on 16 November 2013 he was interviewing a suspect in relation to sexual allegations and, at the request of the suspect, the police officer rang the number of “Chris Rosser’s’ law firm” (1-36). He spoke to the appellant. He advised the appellant that the suspect wished to obtain legal advice. The appellant asked to speak to the suspect on the phone. He was allowed to do so. The police officer then took the suspect to a police station and the appellant met them at the station. He allowed the appellant to speak to the suspect (1-37) on the basis that the suspect and his lawyer should be permitted an opportunity to speak in private. There followed an interview with the suspect which was electronically recorded. Parts of that recording were played. The relevant passages appear as occasion no. 4 on the particulars document.

[27]
The appellant identified himself as “and also present legal representative Jacob Reichman for (the suspect).” The police officer asked the appellant whether he was confident that (the suspect) understood the warning. The appellant responded “yes I am, I discussed it with him prior to the interview.” The police officer said to the suspect “obviously you’ve got Jacob here with you as your solicitor (yep) if you did require to speak to a friend or a relative we could make arrangements for that.” The suspect indicated he wanted no-one else present. At one stage early in the interview (6.17 minutes) the police officer said “and obviously you’ve got Jacob here with you. Who’s looking after your legal rights anyway, so if there’s something I ask that you don’t understand, don’t answer the question if you don’t understand it, just seek clarity from myself, or Jacob, he can assist in that regard”. On a number of occasions after that the appellant clarified a number of questions and asked questions himself. At 1 hour 32.20 he said “Don’t hold back. You might as well just be open and honest.” At 1 hour 43.10 the appellant said “you don’t have to (say anything) … its up to you.” The interview concluded after 1 hour 54 minutes. In evidence Sergeant Anderson said that the appellant was allowed to participate as he did because of his position as a legal representative rather than a support person (1-38).

[28]
In cross-examination the police officer agreed that the appellant had never said he was a solicitor (1-38). He denied the appellant said to him that he was working for the barrister Chris Rosser. The suspect had told him that the appellant worked for Chris Rosser (1-38). In re-examination the police officer agreed that the appellant had not said that he wanted to be there as a support person (1-39).

[29]
Senior Constable A Webber gave evidence of three occasions when he had contact with the appellant. They were occasions nos. 1, 2 and 5 on the particulars document. These were in relation to the same suspect in relation to a number of fraud and related matters (1-47).

[30]
On 18 September 2013 (no. 1) he was conducting an interview with the suspect (1-40). The suspect requested that the police officer contact his solicitor, Jacob Reichman. The police officer called a number provided by the suspect. The appellant answered. He answered “legal advisory service, Jacob Reichman speaking.” The appellant together with Chris Rosser attended the police station. Mr Rosser and the appellant spoke to the suspect privately. After that meeting, the appellant indicated he would participate as a legal representative for the suspect in the interview. Mr Rosser left the station (1-41). The interview was electronically recorded and the relevant portions contained in the particulars document were played to the court. Following the interview the suspect was charged with a number of offences.

[31]
At the start of the interview the suspect requested to contact “my lawyer Jacob”. At 5.08 of the interview the police officer says “… we also made contact with your solicitor, whose currently here with us now”. At 5.14 of the interview the police officer said “is it the case that after receiving advice from your solicitor, you no longer want to answer any questions?”. The suspect replies “yes”. At 5.31 the appellant says, “Jacob Reichman, legal representative here for “the suspect”.

[32]
On 16 October 2013 the same suspect was interviewed again by Senior Constable Webber (1-41). The police officer had called the appellant to arrange the further interview (1-42). The appellant attended in company with the suspect and a woman Ms S French, who told the officer that she was the clerk for the appellant. That was recorded (1-44). The interview with the suspect was also electronically recorded. The relevant portions were played to the court as summarised in the particulars document (no. 2).

[33]
At the commencement of the interview the appellant identifies himself as “my name is Jacob Reichman, R-E-I-C-H-M-A-N, legal representative for (the suspect).” During the interview the appellant advises the suspect he can answer a particular question if he wants (11.54) and to (tell them) whatever you can (27.53). The appellant asked whether the suspect understands his rights (48.47). The appellant asked questions about specific matters (58.26; 1.00.20; 1.09; 1.09.12). At 1.28.22 the appellant says “you don’t have to answer that if you don’t want to”. At 1.30.09 the appellant says “I wouldn’t answer any questions (suspect)”. The police officer says “you understand your rights still apply, and they apply to every single question, as your solicitor has instructed you.” At 1.42.13 the appellant says “don’t answer any more questions” and the interview is terminated soon after.

[34]
Senior Constable Webber gave evidence that he allowed the appellant to intervene in the interviews as he did because he believed the appellant was a solicitor providing legal advice and was not there as a friend or support person (1-43). If he had been a friend or relative the police officer would have excluded him pursuant to powers under the Police Powers and Responsibility Act 2000 (PPRA) (1-42:43).

[35]
On 27 December 2013 Senior Constable Webber conducted a further interview with the same suspect (1-43). He spoke to the suspect and the suspect requested that the appellant be in attendance. The appellant attended with another person Joshua Dawson who identified himself as “the assistant for Mr Reichman”. The interview was electronically recorded. The relevant parts of the interview were played as summarised in the particulars document (no. 5).

[36]
At the commencement of the interview the appellant says “Jacob Reichman, legal representative here for (the suspect)”. At 46.24 the appellant says “You don’t have to agree with it. It’s just her allegation.” At 48.53 there is a discussion between the police officer and the appellant about an element of hearsay in a complainant’s statement. At 50.57 the appellant says “It’s all right. You don’t have to answer any questions about all that, so specifically.”

[37]
In cross-examination the police officer agreed that not once had the appellant said that he was a solicitor (1-45). He agreed that on 18 September 2013 the appellant gave him a business card. It was produced and tendered (Exhibit 4). The card is headed “Legal Advisory Service, Crime and Traffic Division”. The appellant is referred to as “case manager”. There is no mention of Mr Rosser on the card.

[38]
The defence did not require police officers called in relation to nos. 7, 8 and 12 of the particulars document (1-49).

[39]
No. 7 related to an interview conducted on 4 February 2014 by Senior Constable T Mills. The suspect refused to give an interview. That refusal was audio recorded and played to the court. In that, the appellant says “my name is Jacob Reichman, and I am a legal representative here for (the suspect)”.

[40]
No. 8 related to an interview conducted on 20 February 2014 by Senior Constable J House. The interview was recorded and relevant parts played to the court. At the commencement of the interview the appellant says “Jacob Reichman, R- E- I- C- H- M- A-N, legal representative here for (the suspect).” Shortly thereafter he confirmed again that he was the suspect’s legal representative. On two occasions the appellant asked the suspect clarifying questions. At 51.25 the appellant said “you don’t have to answer that if you don’t want to”. At 1.06.32 the appellant said “you don’t have to answer that, you can just say no comment.”

[41]
No. 12 related to an interview conducted on 25 September 2014 by Constable C J Spencer. The interview was recorded and relevant parts played to the court. At the commencement of the interview the appellant says “Jacob Lazar Reichman, case manager, ah Chris Rosser barrister at law and here as legal representative and support person for (the suspect)”. The police officer asks the suspect whether he wishes to speak to any other person than his legal representative. The suspect replies “no”. The appellant again identifies himself using the same terms. The police officer asks “so you’re from Chris Rosser?”. The appellant responds “lawyers, yep.” At 16.53 the appellant interrupts to ask the suspect a question about a drug prescription for pain medication. At 28.31 the appellant asks the police officer to suspend the interview in order to have a private conversation with the suspect. At 35.03 the appellant says “if you don’t want to answer a specific question you can say no comment.” The suspect then gives many “no comment” answers. At 54.42 there is a conversation by the appellant to the suspect about speaking about having a prescription for a certain drug. At 57.03 the appellant discusses with the police officer whether the appellant has seen a notice to occupier but that the suspect was aware of a search warrant being issued. At 57.49 the appellant advises the suspect of the power under the warrant to enter premises. At 15.18 the appellant advises that the suspect that certain disclosure would get him in more trouble and that the appellant had already told him that.

[42]
Senior Constable J McCafferty gave evidence about interviewing a suspect on 17 March 2014 in relation to an incident concerning bodily harm to a 10 year old (1-52). The suspect requested to contact a lawyer. She obtained a telephone number from a directory and was allowed to make a phone call. A short time later the appellant and another female person introduced as his assistant attended the police station. His colleague on the day, Senior Constable Orlando, had had prior dealings with the appellant. The appellant was allowed to have a private conversation with the suspect after which the appellant indicated to the police officer that she would be exercising her right to silence. An electronic recording of that refusal was made (1-53) and played to the court (no. 9). The police officer let the accused have a private conversation with the suspect because he was the legal representative (1-53). There was no cross-examination of the police officer.

[43]
Sergeant I Hine gave evidence of the execution of a search warrant on 24 March 2014 in relation to drug related offences (1-54). Arrangements were made to interview the suspect on 6 May 2014. The interview was electronically recorded and relevant portions were played to the court (no. 10). At the commencement of the interview the police officer says “those persons present are … and (suspect’s) solicitor, are Jacob Reichman”. At 1.32 the appellant says “Jacob Reichman, legal representative here for (the suspect).” At 4.52 the police officer says, “So Jacob for you, do you agree that prior to commencing this interview you spoke to (suspect) by yourself?”. The appellant says, “Yes”. The police officer says, “And you’re happy to be here as the solicitor for this interview” and the appellant says, “Yes”. (That passage is mis-transcribed in the particulars document with the word “as” mis-transcribed as the word “for”. The recording itself indicates the correct wording).

[44]
Sergeant Hine also gave evidence of the interview of a different suspect on 12 September 2014 where the appellant again attended the police station (1-55)(No. 11). The appellant had a conversation with the suspect and the suspect advised that he did not want to participate in an interview. The appellant, to the best of the police officer’s recollection introduced himself as “legal representative” and referred to the office of Chris Rosser, Barrister. In cross-examination the police officer recalled that on 12 September 2014, the appellant introduced himself as “the legal representative on behalf of the office of Chris Rosser Barrister”(1-58). It was suggested that in the interview of 6 May 2014 the appellant corrected the police officer’s statement that he was a solicitor by his saying at 1.32, “Jacob Reichman, legal representative…”. The police officer did not recall it as a correction at the time (1-56). In re-examination that portion of the recording was played which emphasised the statement by the appellant occurred some 50 seconds after the police officer’s statement (1-59).

[45]
Sergeant N Jackson gave evidence that on 27 December 2013 she interviewed a suspect in relation to historical sex charges. The suspect attended with the appellant and another male who stated he was an assistant to the appellant (1-61). The allegations were outlined to the appellant and he had a private conversation with the suspect. The interview then proceeded and was electronically recorded. Relevant portions of the interview were played to the court (No. 6).

[46]
At the commencement of the interview the appellant said, “Jacob Reichman, legal representative here for (the suspect)”. The police officer says to the suspect, “Are you prepared to have the details of the complaint outlined to you?” The interviewee looks at the appellant who nods. The suspect then declines to be interviewed.

[47]
In cross-examination the police officer, who was at the time of the trial a police prosecutor, was asked if she knew how the appellant announced his appearance in court. It was put to her that the appellant announced his appearance as, “A clerk from Mr Rosser’s office”. The police officer responded, “I believe he does, yes, at the moment.”

[48]
The prosecution then closed its case.

[49]
The appellant gave evidence and called one witness, Ms French.

[50]
The appellant gave evidence that he was a law clerk employed by Mr Rosser. He was a paid employee (1-70). The title “Case Manager” on his business card was a title given to him by Mr Rosser. The appellant gave evidence he had a Bachelor of Laws from Bond University and a Graduate Diploma in Legal Practice from the College of Law (1-71). He had not been admitted as a legal practitioner.

[51]
With respect to attending a police station on 14 November 2013 and meeting Senior Constable Orlando, he attended with Ms French who was doing work experience at the time (1-72). When they attended the station the police officer already had a document prepared with his details on it (1-72; 73) (that had not been suggested to the police officer). The police officer then prepared the form for Ms French. His document was handed to him and he simply signed it in a box under the words “support person / interpreter signs here”. He did not tell the police officer he was a solicitor (1-74). The police officer had asked Ms French about her capacity and Ms French said she was a law clerk.

[52]
His evidence was that in none of the interviews did he say he was a solicitor (1-75).

[53]
In cross-examination the appellant was shown Exhibit 1 and asked how Senior Constable Orlando had gotten his date of birth. His evidence was that somehow the police officer knew his date of birth (1-76). He signed the form without reading it (1-77). He rejected the suggestion that he provided the description of solicitor (1-78). When referred to by the police officer as a solicitor he did not correct it because, “I was always taught not to interfere with the formal parts of the interview and that I was there as a legal representative.” He did not want the police officer to believe that he was a lawyer.

[54]
The prosecutor was allowed to cross-examine the appellant about other occasions when he had described himself as a solicitor on the basis of his answers that he signed the form without reading it and that he overlooked the description of “solicitor,” as “complete inadvertence”. The prosecutor was allowed to question the appellant about previous convictions pursuant to s 15(2)(a) Evidence Act 1977 where he had described himself previously as a solicitor. He agreed that he had called himself a solicitor before a Magistrate in the Magistrates Court on 31 March 2013, 14 March 2013, 15 April 2013 and 20 May 2013. He had maintained that he was a solicitor in the face of questioning by the Magistrate (1-84). He had entered a plea of guilty to the offence of holding himself out to be a solicitor (1-85). He knew he was being investigated for that matter when he had the meeting with Senior Constable Orlando (1-85). He did not correct Senior Constable Orlando when she called him a solicitor in the interview because “that wasn’t my responsibility” (1-85). He later said that his words “as support person legal representative” was the correcting of the police officer (1-89). In relation to the interview on 16 October 2013 when Ms French described herself as his clerk, the appellant’s evidence was that he did not tell her to say that. He agreed she was not his clerk (1-89). He did not feel the need to correct her statement. His evidence was, “I didn’t’ feel it was my responsibility to speak for Ms French or interrupt her or speak in place of what she chose to identify herself as.”

[55]
He was told by Mr Rosser to call himself a legal representative (1-90).

[56]
On 6 May 2014 in relation to his response “Yes” to the question “And you’re happy to be here as the solicitor for this interview”, his evidence was “That might have been a mistake on my part of not paying enough attention” (1-90).

[57]
He denied providing any independent legal advice in any of the interviews because “I may have been a conduit for Mr Rosser”. (1-90).

[58]
The prosecutor cross-examined the appellant about whether he gave instructions to his legal representatives about whether Senior Constable Orlando had completed the form before he entered the office. He replied that he believed he provided instructions that the form had been completed (T2-7).

[59]
In relation to the interviews he was present as a support person and did not give legal advice (2-11). There was no prohibition on a non-lawyer or a law clerk in the PPRA about being present in an interview. He knew that a lawyer could not be excluded from an interview for giving legal advice and disagreed that he was giving legal advice (2-12).

[60]
In re-examination he stated that he recognised a police service document (Exhibit 6) which set out the role of a support person in an interview. That included the passage,

“In your role as a support person, unless you are a lawyer, you must not provide legal advice but you may ask the person questions to ensure that he or she understands the following…”

[61]
Ms S French, solicitor, was called. She had done work experience with the Legal Advisory Service with Mr Rosser. On one occasion she attended a police station with a client who was signing on to the Sexual Offenders’ Register (2-17). She attended the station with the appellant. She attended as a law clerk. She believed the appellant handed the police officer a business card and advised her that he was from Mr Rosser’s office (2-18). They were told that each of them would need to sign a confidentiality form. The officer asked them for specific details including full names and dates of birth which they provided. Each of them then signed the form (2-18). Ms French told the police officer that her status was law clerk.

[62]
She believed the appellant introduced himself and gave the officer his card, saying that he was from the office of Mr Rosser, a barrister-at-law and he was clerk (2-19). The police officer had not asked the appellant if he was a solicitor. The appellant had never represented himself to be a solicitor (2-19).

[63]
In cross-examination Ms French was asked about whether she could recall introducing herself as the clerk of the appellant on 16 October 2013. She did not believe she had ever introduced herself in that way (2-20). When informed that it had been electronically recorded, her evidence was that that would have been an error on her part. She would have known that the appellant was not a solicitor and she was certainly not his clerk.

[64]
She agreed that the confidentiality forms were completed when she and the appellant were in the room with the police officer. The information was given and entered onto the computer by the officer (2-22). Ms French read the form before she signed it. She believed the appellant did the same including reading through it (2-23).

[65]
The defence then closed its case. The learned Magistrate asked, “And Mr Rosser is not giving evidence?” The reply was a negative (2-23).

[66]
The defence submitted that the appellant was an employee of Mr Rosser who was paid a wage and did not charge fees for his services. The appellant had done none of the things which were indicia of engaging in a legal practice. The prosecution case was that because of the 12 specified occasions, the appellant engaged in legal practice throughout the period charged. The defence case was that this had not been proved to the required standard.

[67]
The defence submitted that the tests referred to by Phillips J in Cornall v Nagle (above) were based on the Victorian legislation and not enshrined in Queensland legislation. To establish that the appellant engaged in legal practice there also needed to be proved the various indicia spoken of by Fryberg J in Legal Services Commissioner v Bradshaw and by Daubney J in Legal Services Commissioner v Walter (above).

[68]
The allegation was that on only one occasion had the appellant represented himself to be a solicitor (No. 3). The defence submitted that the evidence as to that by Senior Constable Orlando should be rejected because she only included that conversation in communications with the prosecutor shortly prior to trial and it had not been included in her original police statement. The evidence of Ms French was that that had not occurred.

[69]
The defence submitted that what had been said by the appellant in the interviews was not legal advice but, in any event, what was said by him was permitted to be said by a support person. On occasions, the appellant was simply reminding the suspect of his rights not to answer questions. This was merely a reiteration of the suspect’s rights and not legal advice.

[70]
The learned Magistrate raised the issue about whether he could take into account that the police had allowed the appellant to have private conversations with the suspect as an indicia of legal practice. The defence submitted he should not because those matters had not been particularised by the prosecution. The prosecution conceded that that should not be taken into account (2-36).

[71]
The prosecutor submitted that the case against the appellant had been made out by reference to both the first and third limbs of the tests set out in Cornall v Nagle. The prosecutor submitted that one needed to look at the actions of the appellant in combination and not in isolation. On the 12 occasions the appellant had called himself a legal representative, on a number of occasions the police officer referred to him as a solicitor and the appellant did not correct that and on one occasion he signed a form in which he was described as a solicitor. The prosecutor submitted that the learned Magistrate should accept the evidence of Senior Constable Orlando that the appellant supplied his personal information and read through the form before he signed it. That was supported by the evidence of Ms French. The prosecutor also submitted that the learned Magistrate should draw no inferences from the failure to put those instructions to Senior Constable Orlando (2-39).

[72]
The prosecutor submitted that the learned Magistrate could consider that Mr Rosser wasn’t called in considering what weight to be given to the evidence of the appellant (2-39). She also submitted in relation to the evidence of the appellant that he was a “conduit” for advice from Mr Rosser, that that evidence should be rejected because Mr Rosser was not called as a witness and, secondly, considering the length of some of the interviews and the things said by the appellant, that clearly Mr Rosser was not providing the advice.

[73]
In relation to the first limb of the test articulated by Phillips J in Cornall v Nagle, the appellant was present in the interviews as a “legal representative”, he was referred to on occasions as a solicitor without correction by him, on one occasion he answered positively to the question whether he was happy to be present in the interview as a solicitor, he provided legal advice about not answering some questions and on one occasion he terminated the interview. It was clear on the evidence that he was acting as a lawyer and not a support person. On one occasion a work experience person described themself as the appellant’s clerk without correction by the appellant. The appellant was plainly “doing something which, although not required to be done exclusively by a solicitor” (the attendance as a legal representative at police interviews with suspects) and had done that in such a way to justify the reasonable inference that the person doing it was a solicitor. This was established by the way he conducted himself and the advice he gave.

[74]
The prosecutor also submitted that the proven conduct of the appellant would also satisfy the third limb of the tests in Cornall v Nagle,

“By doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law”.

[75]
This was established by the appellant giving legal advice to those suspected of serious criminal offences. Such a role required that it be undertaken by a person with the necessary training and expertise. Section 424 PPRA 2000 provided a distinction to be made between the role of a support person and the role of a lawyer in a police interview. Section 424(2)(d) provided that it is not “unreasonable interference” (justifying the police excluding the person from the interview) for a lawyer to advise a suspect not to answer a question or to say that the lawyer wishes to give the suspect further legal advice. There were examples of each of those things occurring in the evidence against the appellant.

The Magistrate’s Decision

[76]
The learned Magistrate convicted the appellant. The learned Magistrate considered the authorities as to what had to be established to prove the appellant engaged in legal practice. He noted the first limb of the test specified by Phillips J was an objective test. He noted that the prosecution primarily relied on that test. He referred to the scheme in the PPRA and, in particular, the restrictions placed on a support person’s role in relation to “unreasonable interference” and the ability of lawyers to advise suspects not to answer questions.

[77]
The learned Magistrate noted that the appellant had called himself a legal representative on all 12 occasions. He referred to Exhibit 1, the document signed by the appellant, and noted that it referred to the appellant as a solicitor in two places. He noted the difference in evidence between the appellant and Senior Constable Orlando as to how the form was filled out. He noted the evidence of Ms French in relation to that issue. The learned Magistrate did not accept the appellant’s evidence that he did not know that his designation on the form was as a solicitor. He accepted the evidence of Senior Constable Orlando and Ms French that the appellant had read and signed the form. Whilst the learned Magistrate was not satisfied beyond reasonable doubt that the appellant specifically told Senior Constable Orlando that he was a solicitor (presumably on the basis of the late disclosure of that information), he was satisfied to that standard that this was a case of misrepresentation by silence. The learned Magistrate noted that the appellant was “smart and intelligent” and had a law degree and that, on his evidence, he was being very careful not to represent himself as a solicitor. In those circumstances, the learned Magistrate did not accept the appellant’s evidence that he had not read the form.

[78]
The learned Magistrate also found that on another occasion (No. 10) that by the appellant’s response to a police officer’s question, that the appellant specifically represented himself to be a solicitor.

[79]
The learned Magistrate found that on five occasions (Nos. 1, 2, 3, 4 and 10) the defendant did not correct the police officer calling him a solicitor. He also found that on two occasions (in No. 2) the appellant advised the suspect not to answer questions. The learned Magistrate found that that went further than simply reminding the suspect of his rights. The learned Magistrate was satisfied that constituted the giving of legal advice.

[80]
In relation to the prosecution’s submission that in the course of the interviews that the appellant was acting as a lawyer, the learned Magistrate noted the appellant’s evidence he was acting as a conduit for the evidence of Mr Rosser. The learned Magistrate noted the recordings showed the appellant played a very active role. In none of the interviews did he say that what advice he was giving was what he had been told by Mr Rosser. On one occasion (No. 12) the appellant suspended the interview. The learned Magistrate found that that was something that was normally done only by a solicitor.

[81]
The learned Magistrate found that the appellant had given out business cards to Sergeant Orlando. That contained the name “legal advisory service” which was some “strange type of hybrid” which seemed to run like a solicitor’s office with payment for services but was actually run from a barrister’s chambers. The learned Magistrate noted,

“and tellingly, Mr Rosser hasn’t given evidence for the defence; he hasn’t confirmed the defendant’s evidence, that he was merely a conduit for Mr Rosser’s legal advice, and he hasn’t come along to clarify the situation of payment.”

[82]
In relation to payment for the appellant’s services, the learned Magistrate found that the appellant’s evidence was evasive. His evidence was that he did not know what clients were charged. He did not know how Mr Rosser billed for the Appellant’s time. Mr Rosser gave a fixed fee and did not charge by the hour. The learned Magistrate found it highly unusual for a person not to be aware of what his employer was “charging him out at” and he did not believe the appellant on that point. The learned Magistrate noted,

“and tellingly, Mr Rosser hasn’t come along to elaborate and, given the strange hybrid operation he runs, one can understand why he wouldn’t want to hop in the witness box and answer questions about it.”

[83]
The learned Magistrate found the card (Exhibit 4) was the appellant’s card and not Mr Rosser’s. He found that the appellant was the one with the multiplicity of clients. The appellant was the one giving advice to the clients, not Mr Rosser. He signed the form as a solicitor and represented (in No. 10) that he was a solicitor.

[84]
The learned Magistrate was satisfied beyond a reasonable doubt that most of the things done by the appellant were not required to be done exclusively by a solicitor, but were usually done by a solicitor and that the appellant engaged in those activities in such a way as to justify the reasonable inference that he was doing it as a solicitor. The first limb of the Cornall v Nagle test was satisfied.

[85]
The learned Magistrate found it unnecessary to decide whether the third limb of that test was also satisfied. He noted there was no legal expert advice called as to “what is reasonable behaviour at a record of interview”.

The Grounds of Appeal

Ground 1

[86]
Ground 1 is that the Magistrate misapplied the test of “engaging in legal practice” in s 24 LPA.

[87]
The appellant argues that the prosecution charge of a single offence represented an allegation of a continuing offence. That the allegation was of a continuing offence over a period of 16 months rather than 12 separate offences was essential to an understanding of the central error in the Magistrate’s reasoning (appellant’s outline p 4).

[88]
The appellant argues that the learned Magistrate misapplied the first of the three tests described by Phillips J in Cornall v Nagle (above). It is argued that the learned Magistrate failed to appreciate that that test was developed by reference to different legislation. In Victoria the question was whether the conduct in question amounted to “practising as a solicitor”, not “engaging in legal practice”. It is submitted that the term “engaging in legal practice” connotes a course of conduct rather than a one-off event. The appellant referred to the authorities of LSC v Bradshaw, LSC v Walter and LSC v Beames (above) and in particular, the basis of Daubney J’s decision in Walter that the activities occurred regularly over a significant period of numerous years to satisfy him that the respondent “carried on or exercised the profession of law, and accordingly can be said to have practised law.”

[89]
The appellant submits that the doing of “something” is alone insufficient and that conduct must be repeated with sufficient regularity to be properly described as “engaging in legal practice”.

[90]
The appellant submits that the first of the tests in Cornall v Nagle has two components that must exist at the same time before any particular act can qualify. It is submitted that to prove the charge the prosecution had to prove that on each occasion particularised, the appellant engaged in conduct that a solicitor would usually do and that the conduct was done in a way to justify the inference that the appellant was a solicitor. Only those occasions where both conditions were satisfied could be considered in determining that the appellant’s conduct amounted to engaging in legal practice.

[91]
The appellant submits that the learned Magistrate failed to apply the correct legal test in that, at no stage, did he conclude that which, if any, of the 12 particularised occasions involved both conditions of the appellant engaging in conduct usually undertaken by a solicitor and that the conduct was done in such a way to justify the inference that the appellant was a solicitor. Further, the learned Magistrate at no stage considered whether, for those occasions where both conditions were met, that when assessed in combination they amounted to conduct of “engaging in legal practice” over the 16 months alleged.

[92]
The appellant then analysed the 12 separate instances and submits that the learned Magistrate only expressly found in relation to one incident (No. 2) that both conditions were met. In relation to the first condition of doing something “usually done by a solicitor”, where the appellant told the interviewee not to answer questions, the appellant submits that that could also be done by a support person permitted to be present during a police interview (ss 418, 419 and 424 PPRA) and thus the finding was not open. In relation to one other incident (No. 12) the learned Magistrate found that what was done (suspending the interview) was something normally only done by a solicitor. The appellant submits this finding was not open without any finding as to why the interview was suspended. Even if one accepted that incidents 2 and 12 satisfied the first of the tests in Cornall v Nagle, that could not amount to a continuing offence over 16 months.

[93]
The respondent submits there was nothing to suggest that the learned Magistrate did not appreciate that the tests in Cornall v Nagle were developed by reference to different legislation. What needed to be proved was that the appellant “engaged in legal practice” and that the decision in Cornall assisted in considering whether or not the respondent carried on or exercised the profession of law. It was clear that Daubney J in Walter noted that Cornall was in relation to the issue of acting or practising as a solicitor. Accepting Daubney J’s issue of the “consideration of the impugned conduct”, the respondent submits that it was the conduct itself that was the focus and that may or may not include repetition. In Beames, Philippides J held that the conduct was sufficient although it only related to a one off occasion of witnessing a signature.

[94]
The respondent submits there was no error made by the learned Magistrate. The respondent submits that there is no authority for approaching the first limb of the Cornall test as requiring that on each specified occasion both aspects of that limb were present. What needed to be considered was the appellant’s entire conduct as particularised and a determination made as to whether that conduct was such that the appellant engaged in legal practice. Each particular occasion does not need to be considered in isolation.

Consideration

[95]
I am not satisfied that the learned Magistrate erred in his approach to the consideration of the issues. He used the first test specified in Cornall v Nagle to analyse the appellant’s conduct. To my mind that involved an analysis of the appellant’s entire conduct in the 12 particularised occasions. He analysed some of them on the basis that both aspects of the first test in Cornall were present. He did not have to analyse each occasion and be satisfied that both aspects of that test were present. This is particularly the case where some occasions (Nos. 1, 2 and 5; 3 and 9; 10 and 11) involved the same police officers. It was the entire impugned conduct of the appellant that needed to be considered, not an analysis of each occasion to see that the first test in Cornall was made out.

[96]
In relation to the first aspect of that test, “by doing something which, though not required to be done exclusively by a solicitor, is usually done by a solicitor”, and the submission that what the appellant did was something that could be done by a support person, this ignores the fact that on each occasion the appellant described himself as a legal representative and then sat in on the 11 interviews. In some of those interviews he clearly gave legal advice as to not answering specific questions, on one occasion he paused the interview to speak privately with the suspect and on another occasion terminated the interview. After identifying himself as a legal representative, those things were done in that context. While some of those things might have been done by a support person without the police officer determining that that was “unreasonable interference” with the questioning (s 424 PPRA), the appellant was afforded special status (s 424)(2)(d)PPRA) because of his perceived status as a lawyer.

[97]
In relation to the second aspect of the first test specified in Cornall, “by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor”, in my view, the way the appellant conducted and presented himself in a number of the interviews was that he was giving legal advice to the interviewee. This was also in the context of him identifying himself to the police as a “legal representative” of the suspect. It was plainly open on those occasions to infer that the appellant was doing it as a solicitor or legal practitioner.

[98]
In my view the learned Magistrate made no error in his assessment of the matter in terms of the first test in Cornall as, what was required, was an assessment of the appellant’s entire “impugned conduct” and not a separate analysis of each occasion. There is no merit in the first ground of appeal.

Ground 2

[99]
Ground 2 is that the Magistrate wrongly drew inferences against the appellant because of an alleged failure to call a person as a defence witness.

[100]
The appellant submits that the learned Magistrate placed substantial weight on the fact that the barrister, Mr Rosser, who employed the appellant, was not called by the defence. The appellant referred to two passages in the learned Magistrate’s judgment where he commented that Mr Rosser had not confirmed the appellant’s evidence that he was merely a conduit for Mr Rosser’s advice and that Mr Rosser had not clarified the issue of payment of wages. The learned Magistrate also disbelieved the appellant’s evidence that he didn’t know what Mr Rosser was charging for his services and that Mr Rosser had not “come along to elaborate”. The learned Magistrate referred to “the strange hybrid operation (Mr Rosser) runs”. ([81] and [82] above).

[101]
The appellant submits that it was inappropriate for the learned Magistrate to draw such inferences against a defendant in a criminal trial except in “rare and exceptional” cases (Dyer v R (2002) 210 CLR 285 at [5]).

[102]
The appellant submits that the inference drawn was of substance in the learned Magistrate’s reasoning when considering his findings on the appellant’s conduct generally. It is submitted that the inference drawn was that somehow the appellant was in business for himself rather than as an employed clerk. It is submitted that such a conclusion was highly speculative.

[103]
The respondent submits that the learned Magistrate did not state that he was drawing an adverse inference against the appellant for failing to call Mr Rosser. Apart from one issue where the credit of the appellant was in question (in relation to the form signed for Senior Constable Orlando and her evidence that the appellant told her that he was a solicitor), the issue in the trial was whether the conduct of the appellant (which was largely not in contest) amounted to engaging in legal practice.

[104]
The respondent submits that the learned Magistrate was commenting on the hybrid operation run by Mr Rosser and the appellant’s evidence that he was told by Mr Rosser to call himself a “legal representative” and that he was acting as a conduit for Mr Rosser’s legal advice (1 – 90) and that cash payments that the appellant received were given to Mr Rosser (2 -13). The learned Magistrate did not indicate that he was drawing adverse inferences.

Consideration

[105]
I am of the view that the learned Magistrate did draw adverse inferences against the appellant from the fact that Mr Rosser was not called. The learned Magistrate’s use of the term “tellingly” on two occasions indicates that this was of weight in his consideration. This related to at least support for a finding that the learned Magistrate did not believe the evidence of the appellant that he did not know what Mr Rosser was “charging him out at”. In the circumstances of this case, that was impermissible and amounted to a reversal of the onus of proof. That being the case the issue becomes whether this caused a miscarriage of justice.

[106]
I am of the view that the finding in relation to disbelief of the proposition that the appellant was merely acting as a conduit for the advice of Mr Rosser was plainly open to disbelief on another sound basis. It was palpably incorrect considering the length of the various interviews, the advice given by the appellant during the course of some of them and the fact that on no occasion during any of the interviews did the appellant contact Mr Rosser concerning what advice to give. On no occasion did the appellant in the interview indicate that he was merely passing on what advice he had been told by Mr Rosser. It was plainly open to reject the appellant’s evidence on that basis.

[107]
In relation to the issues of the payment of the appellant’s wage and the arrangement in Mr Rosser’s office about payment, in my view, these were irrelevant and inconsequential matters when viewed against the entire conduct of the appellant. Although it might be relevant in some cases that a person took direct payment for the services provided in determining if the person was acting as a legal practitioner this was not part of the prosecution case. It was not in contest that the appellant was receiving a wage from Mr Rosser for his role.

[108]
In relation to the evidence that Mr Rosser had instructed him to call himself a “legal representative”, this was irrelevant to the case against him. It was not in contest that the appellant did so describe himself on each occasion and how or why he came to do that was irrelevant to the issue of guilt.

[109]
In relation to the only crucial contest of credit in the matter in relation to the signing of the form in occasion No. 3, the learned Magistrate did not accept the appellant’s evidence that he did not know that his designation on the form was as a solicitor and that he had not read the form. The learned Magistrate based that on an acceptance of Senior Constable Orlando’s evidence which was supported in some respects by the evidence of Ms French. That support was that the personal information was supplied by each of them to the police officer and that the appellant had read and signed the form. That was contrary to the appellant’s evidence. The learned Magistrate did not accept the appellant’s evidence in that regard. The learned Magistrate found also that this was a misrepresentation by silence. That finding was plainly open to the learned Magistrate on the evidence before him. It was also open on a consideration of the form itself (Exhibit 1). It is a one page document in clear terms where the appellant is described as a solicitor in two separate places. The fact that Mr Rosser had not given evidence had no bearing on that issue.

[110]
In my view although adverse inferences were drawn from Mr Rosser not giving evidence about specific matters, those matters were insignificant in terms of the evidence against the appellant. In relation to general findings as to the appellant’s credit, they were appropriately open to the learned Magistrate from the evidence specified above.

[111]
I am of the view that no miscarriage of justice occurred as a result of any impermissible adverse inferences drawn. There is no merit in the second ground of appeal.

Separate Consideration

[112]
Considering the nature of the appeal pursuant to s 222 Justice Act 1886 which requires an appellate judge to make his or her own determination of relevant facts, particularly if there is some error in the original decision and, if I am in error in one or both of my determinations on the grounds of appeal, I have considered the evidence against the appellant.

[113]
Whilst the LPA contains no definition of the terms “engage in legal practice” or “practice law”, the decisions in Queensland have adopted the test specified by Philips J in Cornall v Nagle in the circumstances of the cases before them. Those tests, however, are not exhaustive and are not, of course, a legislative test in the LPA. That was, in fact, submitted by the appellant’s counsel on the trial (2-29). He drew attention to the fact that the Victorian legislation was framed in relation to practice as a solicitor and not “engaging in legal practice”. It is in that context that the second aspect of the first test (“by doing it in such a way as to justify the reasonable inference that the person doing it is a solicitor”) must be seen. This would cover situations where the person did not describe themselves in any way as a solicitor or legal practitioner. That is not the case here. I prefer the formulation by Daubney J in LSC v Walter in that the proper approach to s 24 requires a consideration of the impugned conduct to ascertain whether it amounts to the person carrying on or exercising the profession of law and thus “practice law” and “engages in legal practice”.

[114]
On 12 separate occasions the appellant attended a police station on behalf of another person. In one (no. 3), he acted on behalf of a reportable offender and on each of the others he played a role in the interviews of suspects. In 11 of the 12 occasions he described himself as a legal representative to the police. A number of those were recorded in the interviews. In relation to no. 9 it is unclear how the appellant described himself as the suspect declined an interview. On seven occasions (nos. 1, 2, 3, 4, 5, 10 and 11) he is described by police as a solicitor and makes no correction. On one occasion (no. 10) the appellant is asked whether he is happy to be present as “the solicitor for this interview” and he responds “yes”. On one occasion (no. 3) the appellant signs a form where in two places he is described as a solicitor. I accept the learned Magistrate’s finding that the appellant read that document on the evidence placed before the Magistrate. On five occasions the appellant advised the interviewee not to answer certain questions (nos. 2, 4, 5, 8 and 12). On one occasion the appellant terminates the interview (no. 2). On one occasion the appellant suspends the interview to speak privately to the suspect (no. 12). On three occasions the suspect declines to be interviewed after speaking with the appellant (nos. 6, 7 and 9). On two occasions (nos. 3 and 12) the appellant gives throwaway lines from which an inference could be drawn by the police officer that he was a lawyer.

[115]
The conduct and things said by the appellant plainly involve the giving of legal advice to the suspect. He was not simply reminding the suspect of his or her rights. To suggest that he was merely a “conduit” for Mr Rosser’s advice is ludicrous. Many of the interviews were lengthy and no communication with Mr Rosser occurred. The things said by the appellant were spontaneous and reactive to the situation. He was no mere conduit.

[116]
It is accepted that at the relevant times the appellant was not an Australian legal practitioner as defined in the LPA.

[117]
The “impugned conduct”, which has been proved, plainly shows that the appellant acted as a legal practitioner in his 12 interactions with the police as specified in the particulars. This is plainly brought out by the way he described himself as a legal representative on each occasion and conducted himself as such in the advice he gave. This was compounded on the occasions he allowed the police to act under the misapprehension that he was a solicitor. That some of those interactions may have been done by a support person in a police interview is irrelevant where on each occasion the appellant has so described himself.

[118]
Even if the contention of the appellant is correct that the two prongs of the first test in Cornall need to be make out on each occasion, both prongs are present in the majority of the occasions, especially where the appellant has described himself as a legal practitioner.

[119]
In relation to the third test specified in Cornall, (“by doing something which, in order that the public may be adequately protected, is required to be done only by those who have the necessary training and expertise in the law”), I am also of the view that this also has relevant application.

[120]
The appellant attended 11 police interviews with suspects. This was in relation to a range of serious alleged offences: fraud (nos. 1, 2 and 5); rape and sexual assault (no. 4); rape and indecent treatment of a child (no. 6); breach of a domestic violence order (no. 7); dangerous operation of a motor vehicle causing grievous bodily harm (no. 8); assault occasioning bodily harm to a child (no. 9); supplying dangerous drugs (no. 10); possessing dangerous drugs (no. 12). The learned Magistrate’s comment that there had been no expert evidence about the proper role of a lawyer in those circumstances, whilst correct, is beside the point. Public interest demands that suspects in those circumstances be given appropriate advice by an appropriately trained and experienced lawyer. That is consistent with the main purposes set out in s 22 LPA. There was no evidence led about each of the suspects’ understanding about the status of the appellant. However, it is easy to imagine a legal challenge brought by a defendant if the prosecution seek to lead evidence of those interviews, where it is alleged the appellant was not a legal practitioner and the defendant acted on his advice.

[121]
To my mind the third test specified in Cornall is also made out in respect of the appellant’s conduct of participating in those interviews.

[122]
I am satisfied there was an abundance of evidence to prove the charge laid to the criminal standard. On that evidence, I would convict the appellant.

[123]
The appeal against conviction is dismissed.

The Sentence Appeal

[124]
On 7 September 2016, the learned Magistrate sentenced the respondent (in this appeal) to a fine of $1,500 with professional costs of $4,000 and a filing fee of $86.80. A conviction was recorded.

[125]
The Legal Service Commission has appealed against that sentence.

Grounds of Appeal

[126]
The grounds of appeal are:

(1)
the Magistrate erred in concluding that the circumstances of the charge subject to appeal were less serious than those resulting in the respondent’s conviction on 27 August 2014;

(2)
the Magistrate erred in rejecting the submission that it could no longer be said that no damage was done to the client by the activities undertaken by the respondent;

(3)
the Magistrate erred in concluding that a fine was of sufficient protective effect;

(4)
the sentence imposed was, in all the circumstances, manifestly inadequate.

Nature of the Appeal

[127]
The appeal is again brought pursuant to s 222 Justices Act 1886. As noted above, the nature of such an appeal is a rehearing in the technical sense, consisting of a review of the evidence below rather than a fresh hearing. To succeed in such an appeal, an appellant must establish some legal, factual or discretionary error (para 6 above).

[128]
In relation to an appeal against sentence, Keane JA (as he then was) noted in R v Lawley [2007] QCA 243:

“It is necessary to state that the sentence imposed by the learned sentencing judge involved the exercise of a discretion which this Court may not interfere with unless an error of the kind identified in House v The King (1936) 55 CLR 499, 504-505 has occurred. It is not a sufficient basis for this Court to intervene that this Court might have struck a different balance between the competing considerations which had to be weighed in the exercise of the discretion.”

[129]
This is a prosecution appeal against sentence. Such an appeal is of an “exceptional character”. In Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [17], in the majority judgment, the High Court stated:

“The treatment of Crown appeals against sentence as ‘exceptional’ indicated a judicial concern that criminal statutes should not be construed so as to facilitate the erosion of common law protection against double jeopardy.”

[130]
In relation to a prosecution appeal against sentence on the basis of manifest inadequacy, “appellate intervention is not justified simply because the result arrived at below is manifestly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the Appellate Court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons” (Wong v R (2001) 207 CLR 584 at [58]).

The Sentencing Magistrate’s Reasons

[131]
The learned Magistrate summarised the offence of which he had convicted the respondent. He noted that the respondent had pleaded guilty to two similar offences on 27 August 2014 and had been fined with no conviction being recorded. The particulars of one of those offences were that the respondent had, on a number of occasions, announced his appearance in court, as a solicitor when he was a law clerk and not an Australian legal practitioner. The learned Magistrate was of the view that that conduct was more serious than the present offence (sentencing remarks, p 2). He accepted that there was no suggestion that the advice given was incompetent advice and that the respondent “did a good job”.

[132]
The learned Magistrate noted the various references tendered on the respondent’s behalf attesting that the respondent was otherwise an honest person. That included an “impressive reference” from Mr Rosser.

[133]
The learned Magistrate noted there were totality issues involved because of the overlap of the offending behaviour for which the respondent had already been sentenced. The respondent had been told of the investigation into that earlier conduct which had been dealt with on 27 August 2014 on 30 October 2013. The respondent was charged with that conduct on 7 April 2014 (thus occasions 1 and 2 occurred prior to the advice of the investigation, occasions 3-9 occurred after that advice but before the charges were laid, occasion 10 occurred after the charging but before the sentence and occasions 11 and 12 occurred after sentence). The learned Magistrate noted that occasion 10 involved the respondent agreeing with the police officer that he was present as a solicitor. The learned Magistrate was of the view that that conduct was “brazen and blatant” and should be taken into account on sentence.

[134]
The learned Magistrate noted the maximum penalty was two years’ imprisonment or 300 penalty units and that professional costs were sought.

[135]
The learned Magistrate considered a fine of $1,500 was sufficient and then considered whether a conviction should be recorded. He particularly took into account the circumstances involved in occasions 10, 11 and 12 and the serious nature of the offence. He noted that the offence was contained in protective legislation, “to protect members of the public from persons who aren’t legally qualified carrying out legal work and legal practitioners have the benefit of professional indemnity insurance and are subject to professional ethics and professional regulation”. The matter had been taken to trial and only limited remorse was shown in the references tendered. The learned Magistrate considered the respondent’s youth and character. He noted the impact that the recording of a conviction would have on the respondent’s ability to be admitted as a legal practitioner. The learned Magistrate determined because of the previous conviction for similar conduct, the brazen and blatant behaviour involved in occasion no. 10, that no. 12 had occurred after the previous sentence had been imposed and that the respondent had conducted a trial (presumably with little remorse shown) that a conviction should be recorded.

The Previous Convictions

[136]
On 27 August 2014, the respondent pleaded guilty to an offence against s 24 LPA that between 30 January 2013 and 10 July 2013 he had engaged in legal practice when not an Australian legal practitioner and an offence against s 25 LPA that between 30 January 2013 and 7 February 2014 he had represented himself to be entitled to engage in legal practice when not an Australian legal practitioner.

[137]
The first offence involved six occasions when the respondent represented he was a solicitor before the Magistrates Court on mentions in criminal matters, including two occasions when asked directly whether he was a solicitor. The second offence related to representations the respondent made on social media that he was a solicitor. That offence had continued over a longer period.

[138]
The sentencing Magistrate noted that the respondent was aged 20 at the date of the offending and was a second year law student at Bond University. He had commenced with the barrister for work experience and was then employed as a law clerk. The sentencing Magistrate found that the respondent did not receive any payment directly from clients and that “it appears no damage was done to the client”. She found that the respondent “got swept away in the excitement of commencing what he believed was going to be your career at an earlier point than you were actually permitted to do”. The sentencing Magistrate took into account the respondent’s apparent immaturity and that he was perhaps “isolated from mature advice”. She noted the respondent had no criminal history.

[139]
The sentencing Magistrate imposed a fine of $1,000 and ordered professional costs of $1,000 and $83.50 filing fees. No conviction was recorded.

The Grounds of Appeal

Ground 1

[140]
Ground 1 is that the Magistrate erred in concluding that the circumstances of the charge subject to appeal were less serious than those resulting in the respondent’s conviction on 27 August 2014.

[141]
The appellant submits that the Magistrate erred in this when one considers the totality of offending. The present conduct was protracted and involved the respondent representing different clients’ legal interests in electronically recorded interviews with police. Whilst it was serious to misrepresent oneself as a solicitor in court, it was no less serious to appear as a “legal representative” for a number of persons being questioned in relation to serious criminal conduct.

[142]
The respondent submits that the previous matter of appearing in court and misrepresenting his status was rightly regarded by the learned Magistrate as a serious matter. Appearing in court as of right can properly be said to be at the core of the exclusive functions of a legal practitioner. The vast majority of the conduct of the respondent in the interviews could properly have been done by a lay support person. The respondent reiterated his argument that on only one occasion (no. 2) could it be identified as the provision of legal advice. It is submitted that, it was open to the learned Magistrate to conclude that this offending was not as serious as the earlier conduct.

Consideration

[143]
I reject the respondent’s contention that it was only on one occasion that the respondent gave legal advice and that the “vast majority” of his conduct could properly have been done by a lay support person. As explained above, the conduct of the respondent in the interviews and the advice he gave must be seen in the context of his description of himself as a “legal representative” and, on occasions, his lack of demurrer when described by a police officer as a solicitor. He was plainly not acting as a lay support person and it is clear that he was giving legal advice on a number of occasions.

[144]
As noted above (paras 119-121), the respondent purported to act as the legal representative on 11 separate occasions in relation to persons suspected by police of involvement in serious crimes. The rights of those persons could well have been impacted by the advice the respondent gave. I have difficulty in seeing how such conduct, particularly as it was often repeated, could be typified as being less serious than an assertion to the court on a mention of being a solicitor. To my mind they are of, at least, equal seriousness.

[145]
I am of the view that the learned Magistrate erred in finding the conduct in the instant case was less serious than the previous conduct. However, on a consideration of the entire sentencing remarks, I am of the view that that error had little impact on his ultimate decision.

Ground 2

[146]
Ground 2 is that the Magistrate erred in rejecting the submission that it could no longer be said that no damage was done to the client by the activities undertaken by the respondent.

[147]
At the sentencing proceedings, the appellant submitted that it could no longer be said that it appeared no damage was done to the client because the respondent appeared as a legal representative of a suspect in interviews where admissions were made and “it is not out of the realms of speculation that in fact there was damage done to the client” (sentencing submissions 1-8). The learned Magistrate noted that during the trial, he had not seen any damage to a client and no client had come forward to give evidence to that effect. The learned Magistrate noted “he seems to have done a reasonable job”. In sentencing, the learned Magistrate noted there was no suggestion that it was not competent advice and that “you did a good job”.

[148]
The appellant submits that whilst there was no direct evidence that damage had been done to a particular client, that was a reasonable inference that could be drawn from the evidence. Some of the suspects had made admissions to elements of their criminal conduct. There was no need to prove there was actual damage done. It was no longer applicable to say that “it appears no damage was done”.

[149]
The respondent submits that it was for the prosecution to prove the aggravating factor of damage having been caused. There was no such evidence led. To formulate the consideration as “it could no longer be said that no damage was done” reversed the burden of proving an aggravating feature of the offending. The highest the prosecution submissions appeared to be was that the learned Magistrate should have taken a neutral position in relation to the issue. If any error was made, it was not material. In order for the appeal to be successful the unavailability of a claim that no damage had been done had to be the only rational inference that was open in the circumstances.

Consideration

[150]
In my view, it was the possibility of damage being done to a particular person by the respondent’s conduct that was a relevant issue for the learned Magistrate to take into account. It was plain that there was no evidence of actual damage having been done to any of the suspects. However, that is an oversimplification of the position. Presumably, if any of the suspects had been charged with offences, those proceedings may still be before the courts. If some of them had made admissions to some of the elements of the offences, those admissions may be open to challenge depending on the knowledge of the suspect of the respondent’s status. It is also plain that making an admission, even if only a partial one, on the basis of supposed legal advice, is damaging to the person. I am of the view that the learned Magistrate was wrong to reject the submission that it could no longer be said that no damage had been occasioned. The serious nature of the respondent’s conduct, and the protected nature of the offence, is the possibility of such damage being occasioned by the person acting as a legal practitioner.

Ground 3

[151]
The third ground of appeal is that the Magistrate erred in considering that a fine was of sufficient protective effect.

[152]
The appellant’s submission is that the purpose of the legislation was protective in effect. A fine did not provide sufficient protection given the nature of the conduct and the blatant disregard of the law considering the previous conviction and sentence for the same conduct. Occasions 11 and 12 were committed within weeks of that sentence being imposed and the respondent was clearly not deterred by the fine that was imposed. It is submitted that a fine may carry with it a commercial decision to continue with the conduct. The appellant submits a wholly suspended sentence would have the protective effect of deterring similar conduct in the future.

[153]
The respondent submits that a suspended sentence would obviously have greater personal deterrence but the issue was whether the fine imposed was within the range properly available.

Consideration

[154]
This ground seems to me to be a component in ground 4, whether the sentence was manifestly inadequate. It is clear that a suspended sentence would have a more serious impact in terms of personal deterrence but that is not the issue, particularly in relation to a prosecution appeal against sentence. I propose to address this issue in relation to ground 4.

Ground 4

[155]
Ground 4 is that the sentence imposed was, in all the circumstances, manifestly inadequate.

[156]
The appellant submits that there were few comparable cases. In none was there anything other than a fine imposed. However, in no case was there a previous similar offence. The principle of totality had some relevance although nos. 3-12 occurred after the respondent knew he was being investigated by the Legal Services Commission. No. 10 was committed after the respondent had been charged and nos. 11 and 12 had been committed after he had been sentenced. Those later occurrences were a serious aggravating feature of the present offence and the respondent had clearly not been deterred by the previous penalty.

[157]
The appellant submits that the sentence was inadequate because of the serious nature of the offending, the criminal history of the respondent and the lack of deterrence occasioned by the previous fine.

[158]
The respondent submits that the inadequacy of a sentence must be “clear and egregious” (DPP v Bright (2006) 163 ACR 538). The learned Magistrate took into account all relevant matters, the nature of the offending, the maximum penalty, the respondent’s youth at the time of offending and the previous sentence. The proposition that the learned Magistrate was obliged to impose a term of imprisonment on a young man on his second appearance is plainly wrong and unsupported by authority. The maximum penalty of two years’ imprisonment was an important yardstick. The recording of a conviction had a substantial punitive effect. The respondent’s youth was also an important mitigating factor. The sentence was within range.

Consideration

[159]
Aside from the two errors identified above the learned Magistrate took into account all relevant matters. He was plainly aware of the serious nature of the offending particularly after a previous conviction for the same offence. He was plainly aware of the protracted nature of the offending. He recognised the totality issue where some of the occasions had occurred prior to the respondent being aware that he was under investigation for the earlier matter and a large number of them having occurred before the respondent was charged with those offences. The learned Magistrate was well aware of the aggravating circumstances of the occasions 11 and 12 occurring after the earlier sentence. A telling feature the learned Magistrate had regard to was the youth of the respondent, aged 20-21 at the time of the offending. The learned Magistrate was acutely aware of the impact of recording a conviction.

[160]
The sentence of the fine and the recording of conviction must be considered as the total sentence. Simply because some other sentence could have had more of an impact in terms of personal deterrence is not the issue in a prosecution appeal. There must be something in the sentence itself that displays manifest inadequacy. To my mind there is not. The imposition of the fine and the recording of the conviction were plainly open to the learned Magistrate in the circumstances of this case. The sentence particularly took into account the youth of the respondent and the impact of the recording of the conviction. I am not persuaded that the sentence was manifestly inadequate.

Separate consideration

[161]
As I am of the view that the learned Magistrate made two errors in his assessment of the matter, that the present offending was less serious than the previous conduct and that he disregarded the submission that the offending could no longer be said to have not caused damage, I must consider the matter afresh.

[162]
As noted above, I am of the view that the first error was of little weight but the second, in my view, ignores a serious aspect of the offence. There is a real prospect of damage where a person purports to be legally qualified and gives legal advice to a person who is being interviewed by police about serious criminal conduct. In my view that has added to the serious nature of the respondent’s conduct.

[163]
The comparable decisions are of little assistance. They were Legal Services Commissioner v McKee (Unreported, Magistrates Courts of Queensland, Magistrate Smith, 11 December 2012); Legal Services Commissioner v Seymour (Unreported, Magistrates Courts of Queensland, Chief Magistrate Butler, 18 January 2011) and

Police v Da Costa (Unreported, Magistrates Courts of Queensland, Magistrate Cull, 4 November 2009). In each case fines were imposed and each had no previous relevant history. The circumstances of each offence were markedly different and none involved attending police interviews with suspects.

[164]
The offence was serious in terms of repeated conduct, its possible impact on the suspects and after a conviction for a similar offence. There was, however, some totality issues in that the earlier occasions, up until 7 February 2014, coincided with the periods of the earlier offences. Two instances occurred after the sentence imposed on 27 August 2014. That is plainly an aggravating feature.

[165]
The telling features here however are the youth of the respondent at the time of the offending (20-21), the character references that otherwise spoke highly of him and the impact that the recording of the conviction would have upon him. It will plainly impact on his admission as a legal practitioner.

[166]
As noted above, I am not persuaded that the sentence imposed by the learned Magistrate was manifestly inadequate. It was an appropriate sentence in all the circumstances in my view. Considering that this is a prosecution appeal against sentence I do not propose to impose a different sentence. The appeal against sentence is refused.

[167]
I will hear the parties as to costs.

Editorial Notes

Published Case Name:
Jacob Reichman v Legal Services Commissioner; Legal Services Commissioner v Jacob Reichman
Shortened Case Name:
Reichman v Legal Services Commissioner
MNC:
[2017] QDC 158
Court:
QDC
Judge(s):
Shanahan DCJ
Date:
13 Jun 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Commissioner of Police v Al Shakarji	[2013] QCA 319	2 citations Jump To Cite 1 - [2013] QCA 319 Cite 2 - [2013] QCA 319
Cornall v Nagle	View on:VR(1995) 2 VR 188	2 citations Jump To Cite 1 - (1995) 2 VR 188 Cite 2 - (1995) 2 VR 188
Downey v O'Connell	View on:VR[1951] VLR 117	2 citations Jump To Cite 1 - [1951] VLR 117 Cite 2 - [1951] VLR 117
DPP v Bright	(2006) 163 ACR 538	2 citations Jump To Cite 1 - (2006) 163 ACR 538 Cite 2 - (2006) 163 ACR 538
Dyers v R	View on:JADE(2002) 210 CLR 285	2 citations Jump To Cite 1 - (2002) 210 CLR 285 Cite 2 - (2002) 210 CLR 285
Felman v Law Institute of Victoria	View on:VR[1998] 4 VR 324	2 citations Jump To Cite 1 - [1998] 4 VR 324 Cite 2 - [1998] 4 VR 324
Fox v Percy	View on:JADE(2003) 214 CLR 118	2 citations Jump To Cite 1 - (2003) 214 CLR 118 Cite 2 - (2003) 214 CLR 118
House v The King	View on:JADE(1936) 55 CLR 499	2 citations Jump To Cite 1 - (1936) 55 CLR 499 Cite 2 - (1936) 55 CLR 499
In re Sanderson; ex parte the Law Institute of Victoria	View on:VR[1927] VLR 394	2 citations Jump To Cite 1 - [1927] VLR 394 Cite 2 - [1927] VLR 394
Lacey v Attorney-General (Qld)	View on:JADE(2011) 242 CLR 573	2 citations Jump To Cite 1 - (2011) 242 CLR 573 Cite 2 - (2011) 242 CLR 573
Legal Services Commissioner v Beames	[2012] QSC 327	2 citations Jump To Cite 1 - [2012] QSC 327 Cite 2 - [2012] QSC 327
Legal Services Commissioner v Bradshaw	[2009] LPT 21	2 citations Jump To Cite 1 - [2009] LPT 21 Cite 2 - [2009] LPT 21
Legal Services Commissioner v Walter	[2011] QSC 132	2 citations Jump To Cite 1 - [2011] QSC 132 Cite 2 - [2011] QSC 132
R v Lawley	[2007] QCA 243	2 citations Jump To Cite 1 - [2007] QCA 243 Cite 2 - [2007] QCA 243
Re Foster	(1950) 50 SR (NSW) 149	2 citations Jump To Cite 1 - (1950) 50 SR (NSW) 149 Cite 2 - (1950) 50 SR (NSW) 149
Robinson Helicopter Company Incorporated v McDermott & Ors	View on:JADE[2016] HCA 22	2 citations Jump To Cite 1 - [2016] HCA 22 Cite 2 - [2016] HCA 22
Rowe v Kemper	[2009] 1 Qd R 247; [2008] QCA 175	1 citation Jump To Cite 1 - [2009] 1 Qd R 247
Teelow v Commissioner of Police	[2009] 2 Qd R 489; [2009] QCA 84	1 citation Jump To Cite 1 - [2009] 2 Qd R 489
Wong v The Queen	View on:JADE(2001) 207 CLR 584	1 citation Jump To Cite 1 - (2001) 207 CLR 584

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Arulogun v Legal Services Commissioner	(2023) 3 QDCR 337; [2023] QDC 207	4 citations
Legal Services Commissioner v Rosser	[2020] QCAT 375	2 citations
Pearson v Legal Services Commissioner	[2018] QDC 266	1 citation
Rich v Auswide Constructions Pty Ltd (No 3)	[2021] QDC 2	1 citation

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Reichman v Legal Services Commissioner[2017] QDC 158