Conduct unbecoming
Thursday, December 18, 2014
Justinian in Fit & Proper, Hellfire Club, NSW Bar Association, Sexual assault

Conviction for sexual assault means barrister is not fit and proper ... Insistence on innocence only made things worse ... Behaviour unconnected with work as a barrister ... Dignity of the bar ... Kate Lilly on the case 

A SYDNEY barrister has been removed from the jam roll following an aggravated sexual assault conviction.

Late last month the NSW Court of Appeal unanimously rang down the curtain on Craig Andrew Franklin, finding he was not fit and proper.  

Although Franklin's criminal behaviour was unrelated to his work as a barrister, the court held that his conduct "revealed defects of character incompatible with the standards and behaviour required of a lawyer".  

The court also found that Franklin's persistent denial of his guilt demonstrated "a present unfitness to practise". 

Background

Franklin pleaded guilty to assault occasioning actual bodily harm in July 2008. The complainant, 'TM', was his "on again off again" girlfriend.  The council of the bar 'n' grill suspended him some months later.  

In February 2009, Franklin was convicted of three further offences in connection with the 2008 charge - common assault, detaining TM without her consent and aggravated sexual assault. 

Franklin's ticket was cancelled in March 2009. Later that year, he was sentenced to a minimum of four-and-a-half years in the slammer.  

Following his release on parole, the bar council sought to have Franklin struck off the roll. The council also wanted a declaration that Franklin was guilty of professional misconduct, and not a person of good fame and character.  

In support of its application, the council cited:  

• The admissions by the respondent that he slapped and punched 'TM' up to 15 times occasioning actual bodily harm; 

• The lack of candour of the respondent by failing to acknowledge the full extent of his offending conduct and giving knowingly false evidence on oath in his trial proceedings denying the conduct underlying the convictions ... intending to procure his acquittal; 

• The respondent giving knowingly false evidence on oath in his sentencing proceedings by continuing to deny the conduct underlying the convictions. 

Two days before the hearing in the NSWAppeals Franklin filed a motion to adjourn the matter for six months, "so that my medical condition may improve". 

Attached was a medical certificate, describing his "social anxiety, social withdrawal, low mood, lack of motivation". He also said that he was innocent of the charges and that he was self-represented.

Unfortunately for Franklin, this last ditch attempt to postpone his fate wasn't going to fly. Considering the hearing date was set in September, Justice Tony Meagher wasn't prepared to entertain any further delays. HH said: 

"The six month adjournment sought, based on totally inadequate medical evidence, carries with it no realistic prospect that the respondent will be in any better position at that time to defend the Bar Council's application than he is at present." 

Appeal outcome

Meagher (with President Margaret Beazley and Mark Leeming in agreement) was inclined to grant the council's application and struck Franklin from the roll of practitioners. 

Not fit and proper

Meagher agreed that the sexual assault conviction should disqualify Franklin from practise. Conduct of a personal nature is open for consideration in determining a lawyer's fitness for practise.   

"Conduct may be contrary to the standard of conduct expected of members of a profession closely involved in the due administration of justice irrespective of whether it occurs in the course of professional practice. If it is contrary to that standard, it may justify an adverse conclusion as to a person's continuing fitness to practise."

Further: 

"Although [Franklin's] conduct in April 2007 did not take place in the practice of law, or directly involve any dishonesty, it included the most serious crime of sexual intercourse without consent in circumstances of aggravation."

HH noted that a serious criminal conviction is enough, in itself, to justify a removal. See Ziems case  

Although the assault occurred seven years ago, HH found there was no evidence to suggest any reform of character. With reference to Franklin's persistent protests of his innocence at trial and sentencing, Meagher found, "the only reasonable inference available ... is that the respondent's evidence was false and known to be false when given". 

Franklin's last minute motion also got him into trouble: 

"In the face of the respondent's continuing refusal to acknowledge that he gave false testimony (evidenced by his recent statement asserting his innocence), it should be concluded that those defects of character continue and also demonstrate a present unfitness to practise." 

There's more:

"My reasons for concluding that the respondent is not a fit and proper person include that he is no longer of good fame and character because he engaged in the conduct described above, some of which may be characterised as professional misconduct."

See: Council of the NSW Bar Association v Frankin  

Article originally appeared on Justinian: Australian legal magazine. News on lawyers and the law (http://justinian.com.au/).
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