Council of the Law Society of New South Wales v Croke

BELL CJ: By way of a summons filed on 29 April 2024, the Council of the Law Society of New South Wales (the Law Society) seeks a declaration that the Respondent, Mr Michael Anthony Croke, is not a fit and proper person to remain on the Roll of Australian Lawyers (the Roll) and an order that his name be removed from the Roll. Costs are also sought.

The relief sought lies within the Supreme Court’s inherent jurisdiction to grant: Council of the Law Society of New South Wales v Karimjee [2021] NSWCA 179 (Karimjee) at [5]-[6] citing A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [10]-[12], [15], [21]. That inherent jurisdiction is preserved by ss 22, 23 and 264 of the Legal Profession Uniform Law (NSW) (the Uniform Law).

On 20 April 2020, following a jury trial in the District Court, the Respondent was convicted of the following six offences:

Drawing upon matters that must be taken to have been found by the jury together with findings by her Honour Judge Syme (the sentencing judge) (R v Croke [2020] NSWDC 460 (ROS)), the Law Society summarised Mr Croke’s criminal conduct as follows:

It was the Respondent who had suggested to his co-offenders that there needed to be a better story than “the money was from illegal gambling”. He thereafter contributed to the development of the story and was involved in the fabrication of evidence and witness coaching in an attempt to pervert the course of justice. As explained by the sentencing judge, “[h]e intended the $702,000 confiscated be paid into his own trust account and ultimately distributed between himself and his co-offenders”: ROS at [25]. The sentencing judge described the totality of the Respondent’s offending as representing a “serious assault on the system of justice in this State”: ROS at [63].

The Respondent’s criminality was assessed as high and his remorse as non-existent: ROS at [54], [79], [83]. He was sentenced to an aggregate term of imprisonment of five years and nine months, commencing on 5 May 2020 and expiring on 4 February 2026, with a non-parole period of three years and nine months.

The Respondent’s appeal against sentence was dismissed by the Court of Criminal Appeal on 27 October 2021: Croke v R [2021] NSWCCA 249. In his judgment, Bathurst CJ, with whom Beech-Jones J and Fagan J agreed, held that the sentencing judge was entitled to find that Mr Croke “used his skill and position as a solicitor in furtherance of the criminal activity” and in breach of his professional obligations: at [88]-[89]. The Chief Justice also rejected the Respondent’s submission on appeal that his conduct could be characterised as that of a “service provider” who was acting “very much at the direction” of his co-offenders: at [82]. More will be said about this later in these reasons.

In his separate reasons in the Court of Criminal Appeal, Fagan J observed at [142] that:

The fuller detail of the offending and Mr Croke’s participation in it is set out in in the ROS as well as in the reasons of the Court of Criminal Appeal. The Respondent did not oppose the relief sought (including as to costs) and did not file any evidence or submissions. In these circumstances, s 91 of the Evidence Act 1995 (NSW) does not preclude reliance upon statements in judgments of the Court to prove a fact or facts in issue in the proceedings in the context of disciplinary proceedings: Hilton v Legal Profession Admission Board [2017] NSWCA 232 at [55]-[56]; see also Perish v R (2016) 92 NSWLR 161; [2016] NSWCCA 89 at [261]–[272]; Morris v Leaney [2022] NSWCA 95 at [41]; Hamilton (a pseudonym) v R [2020] NSWCCA 80 at [58]; Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [48].

Notwithstanding the Respondent’s non-opposition to the relief sought, this Court must be independently satisfied that he is not presently fit to practise and is likely to be unfit in the indefinite future such that the removal of his name from the Roll is appropriate: Council of the Law Society of New South Wales v Duncan [2024] NSWCA 147 at [3] (citing Council of the NSW Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [9], Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [33], [45] and Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 at [99]).

The present is a clear case for removal from the Roll. Admission to legal practice is a privilege, not a right. The administration of justice in this State relies upon legal practitioners adhering unwaveringly to the oaths or affirmations they swear or make on admission to legal practice, a core component of which is an undertaking to the Supreme Court to conduct themselves honestly in the practice of the law. That oath or affirmation, sworn or made at the outset of a lawyer’s career, is one of a continuing and critical nature and significance. The privilege of admission will be withdrawn in cases where a lawyer is established not to be a fit and proper person to continue in practice.

In New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20] (Cummins), Spigelman CJ (with whom Mason P and Handley JA agreed) identified four reasons why the legal profession has long required the highest standards of integrity:

Dishonesty and attempting to pervert the course of justice are paradigm cases for the withdrawal of the privilege of practising law in this State. Such conduct, although fortunately rare, does disproportionate harm to the reputation of the many thousands of decent and honest lawyers who practise in this State, and undermines confidence in the entirety of the legal profession.

Such dishonourable and disgraceful conduct not only calls for, but demands, public denunciation in the form of the declaration sought. In this context, I repeat my endorsement in Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 at [44] of the sage observations of Spigelman CJ in Cummins at [32], namely that:

As was the case in Council of the Law Society of New South Wales v Clarke [2022] NSWCA 57 at [9], where Mr Clarke was found not to be a fit and proper person to be a lawyer presently and in the indefinite future on the basis that his “offences involved him taking advantage in a deliberate and calculated fashion of opportunities arising out of his employment as a solicitor and involved significant breaches of trust and serious dishonesty” such that they were “antithetical to central requirements for being a fit and proper person, namely honesty and integrity”, so too with the Respondent. In like vein, see Karimjee.

It is also appropriate to say something in this judgment about the Respondent’s argument in the Court of Criminal Appeal that he was a “service provider” who acted “very much at the direction” of his co-offenders. That submission bespeaks a fundamental and deeply flawed misconception about the role of a solicitor or a barrister. A lawyer’s first and paramount duty is to the Court and the administration of justice. This paramount duty prevails to the extent of any inconsistency with any other duty: Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW), r 3.1. A failure to recognise this fundamental obligation also underscores the Respondent’s ongoing lack of fitness to practise.

For the above reasons, the Court should make the following orders:

LEEMING JA: I agree with Bell CJ.

STERN JA: I agree with the Chief Justice.