Council of the Law Society of New South Wales v Karimjee

1. [1]

   THE COURT: By Amended Summons filed 12 March 2021, the Council of the Law Society of NSW (“the Council”) commenced proceedings against Hussein Karimjee, seeking a declaration that he is not a fit and proper person to remain on the roll of Australian lawyers maintained pursuant to s 22 of the Legal Profession Uniform Law (“the roll”) and an order that his name be removed from the roll.

2. [2]

   On 15 May 2017, Mr Karimjee pleaded guilty in relation to one count of “do act with the intent to pervert the course of justice” contrary to s 319 of the Crimes Act 1900 (NSW). He was convicted and sentenced on 25 February 2019.

3. [3]

   Mr Karimjee does not oppose the making of the orders now sought by the Council. Nor does Mr Karimjee contest the facts upon which the Council relies, although he seeks a finding that he is “indefinitely” rather than “permanently” unfit to practise.

Non-publication orders

1. [4]

   Before addressing the substance of this matter, it is appropriate first to deal with the application by the Council for orders pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW).

2. [5]

   By para 1 of its Amended Summons, the Council sought orders prohibiting, for a period of 80 years, the disclosure of:

3. [6]

   The Court is empowered to make such orders under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), which provides:

4. [7]

   The Council relied on the grounds set out at sub-ss 8(1)(d) and 8(1)(e) of the Act as the basis for its proposed orders:

5. [8]

   Orders should be made on the grounds relied on by the Council suppressing information tending to reveal the identity of any victim of the offending that was the subject of the Supreme Court proceedings identified in sub-para 1(b) of its Amended Summons for crimes relating to female genital mutilation. The order in sub-para 1(c) relates to the name of the father of one victim and is for that reason also appropriate. The 80-year term of the proposed order is necessary and appropriate to protect the identity of the victims for the duration of their lives. We are prepared to make orders in terms of sub-paras 1(b) and 1(c) on the grounds set out in ss 8(1)(d) and 8(1)(e) of the Act: Burton v Office of the Director of Public Prosecutions (2019) 100 NSWLR 734; [2019] NSWCA 245.

6. [9]

   In relation to the order proposed in sub-para 1(a), the Council submitted that the making of the order would assist to protect the identity of the victims of the offending conduct and their family members. It was also submitted that the order is consistent with an extant suppression order made in the criminal proceedings against the Respondent, Mr Karimjee. The Council submitted that a judgment which discloses the name of Mr Karimjee will not serve as a practical warning to potential clients given the lack of any real prospect that Mr Karimjee will return to practice in the future.

7. [10]

   As we will explain, Mr Karimjee’s name and his relevant conduct are disclosed in a number of publicly available decisions of the Supreme Court and the Court of Criminal Appeal. On 6 August 2021, in response to a specific query made by the Court, Mr Karimjee’s solicitor indicated that he was instructed to no longer press for an order suppressing his client’s name. In response to the same question, the Council continued to press for the proposed order to suppress Mr Karimjee’s name and repeated its submission that the order should be made to ensure consistency with an order of the District Court. At the time of making its original submissions, this was an order that the Council had not seen. The Council was given additional time to obtain a copy of the order from the District Court Registry. The Council’s attempts to obtain a copy of the order proved unsuccessful. In their final submission, made on 13 August 2021, the Council continued to press for the making of a suppression order in relation to Mr Karimjee but advanced no additional reasons in support of making that order.

8. [11]

   We reject the Council’s submissions in support of an order suppressing Mr Karimjee’s name. The public interest in open justice is not lightly to be discarded, especially in professional disciplinary proceedings. Admission to the roll of legal practitioners is a privilege. Removal from the roll is a very serious matter. In exercising the inherent jurisdiction to discipline legal practitioners, the public interest in open justice must be borne steadily in mind. When a member of the legal profession conducts himself or herself so as to bring disrepute to the profession, to the administration of justice and to the legal system, the reasons of the Court should be expressed as openly as reasonably possible. To do less may lead to a view, even if misguided, that the system operates in favour of members of the legal profession in a way it does not with other litigants. Open justice is an important aspect of protecting the public and fostering the public interest by maintaining the accountability of those in the legal profession involved in the administration of justice.

9. [12]

   We also reject the Council’s submission addressed to the evident futility of its proposed suppression order in sub-para 1(a). As we have said, Mr Karimjee is referred to by name in a number of judgments available on the internet. The circumstances of his offending, charge and guilty plea are set out in detail in those judgments: see R v A2; R v KM; R v Vaziri (No 2) [2015] NSWSC 1221; R v A2; R v KM; R v Vaziri (No 4) [2015] NSWSC 1306; R v A2; R v KM; R v Vaziri (No 8) [2015] NSWSC 1472; R v A2; R v KM; R v Vaziri (No 13) [2015] NSWSC 1543; A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174. In the circumstances it is not apparent at all how the making of the order sought might assist in suppressing the identities of the victims.

10. [13]

    Although a suppression order in relation to Mr Karimjee’s name was apparently made in the District Court by Sides DCJ on 7 March 2014, all of the judgments referred to above in which Mr Karimjee was named post-date that order. The terms of the order are not published on either JusticeLink or the Register of orders made under the Court Suppression and Non-publication Orders Act 2010 (NSW). It was not suggested by either party that any extant order bound this Court not to publish Mr Karimjee’s name. As we have said, Mr Karimjee did not press for the making of such an order.

11. [14]

    We are not persuaded that any basis has been shown for making an order suppressing Mr Karimjee’s name and decline to make proposed order 1(a) in the Amended Summons.

Relevant facts

1. [15]

   Mr Karimjee commenced legal practice in 1995 as a solicitor in England and Wales. He has a minor disciplinary record in England and Wales which is not relevant to the present application. He is no longer admitted to practise in England and Wales.

2. [16]

   On 6 August 2002, Mr Karimjee applied for admission as an Australian legal practitioner to the Legal Profession Admission Board (“LPAB”). He disclosed to the LPAB the minor disciplinary allegations then before the Solicitors Disciplinary Tribunal in England and, when the Tribunal’s findings were delivered, the result of those findings. On 4 October 2002, Mr Karimjee was admitted as an Australian legal practitioner.

3. [17]

   On 31 July 2013, Mr Karimjee was arrested and charged with two counts of “do act with the intent to pervert the course of justice” contrary to s 319 of the Crimes Act 1900 (NSW). On 15 May 2017, he pleaded guilty to one count of doing an act with the intent to pervert the course of justice.

4. [18]

   The events relevant to this plea arose in the course of investigations conducted by the NSW police into allegations of female genital mutilation amongst members of the Dawoodi Bohra, an Islamic community in Sydney.

5. [19]

   Between 28 August 2012 and 10 October 2012, Mr Karimjee had a number of telephone conversations (lawfully intercepted under warrant by the police) with each of the father of the alleged victims of female genital mutilation and the local religious minister of the congregation of the Dawoodi Bohra community in Sydney. In these telephone conversations Mr Karimjee counselled them to give statements, and to counsel and influence others in the community to give statements, to the investigating police officers, which Mr Karimjee did not believe to be true.

6. [20]

   To the extent it is relevant, the persons eventually charged with female genital mutilation were convicted at trial and acquitted by the NSW Court of Criminal Appeal in August 2018: A2 v R; Magennis v R; Vaziri v R [2018] NSWCCA 174. That decision of the NSW Court of Criminal Appeal was set aside by the High Court: R v A2 [2019] HCA 35; (2019) 93 ALJR 1106. On remitter, the NSW Court of Criminal Appeal set aside the convictions but ordered that there be a new trial of each of the appellants having regard to the High Court’s construction of the offence provision: A2 v R; Magennis v R; Vaziri v R [2020] NSWCCA 7.

7. [21]

   On 8 June 2017, Mr Karimjee informed the Council that he would not renew his Practising Certificate for the 2017/2018 year and agreed to surrender his current Practising Certificate with immediate effect. That surrender occurred on 16 June 2017.

8. [22]

   On 25 February 2019, Mr Karimjee was convicted and sentenced to 2 years’ imprisonment, to be served in the community by Intensive Correction Order and subject to the following conditions in addition to the statutory conditions, namely:

   1. (1)

      he perform 400 hours of community services.

   2. (2)

      he obtain a mental health plan from his general practitioner and a referral to a registered psychologist and accept treatment from such psychologist for as long as he or she thinks reasonably necessary.

9. [23]

   On sentencing, Mr Karimjee provided a number of character references which the sentencing judge considered “demonstrate that before his offending, he was a person of very good character”. The sentencing judge found:

   1. (1)

      the offending was serious and fell “about half-way between the lower end of the range and the mid-range” of objective seriousness;

   2. (2)

      there was a low to medium risk of reoffending;

   3. (3)

      there was no evidence that Mr Karimjee’s offending was causally contributed to in any way by any psychological or psychiatric condition;

   4. (4)

      Mr Karimjee did not know exactly what was involved in female genital mutilation or the practices of his community but that did not excuse the offending; and

   5. (5)

      Mr Karimjee actively encouraged community members to lie to the police.

10. [24]

    In giving evidence on sentence, Mr Karimjee conceded that he was aware of the improper and illegal nature of his conduct in encouraging community members to lie to the police. Mr Karimjee should have appreciated that as a solicitor it was quite improper for him to encourage people to lie to the police.

11. [25]

    Mr Karimjee had “no knowledge or grounding in the practice of criminal law and was simply not qualified to advise properly in relation to the police investigation”. Mr Karimjee did not initiate the offending conduct but was drawn into it by his desire to assist and protect his community.

12. [26]

    The offending occurred over a relatively short period between 28 August and 10 October 2012. Mr Karimjee was not charged until 31 July 2013 and did nothing further during the intervening 9 1/2 months to undermine the ongoing investigation and prosecutions in any way.

13. [27]

    The sentencing judge found that Mr Karimjee:

    1. (1)

       was a person of prior good character and had no previous convictions at the time of the offending;

    2. (2)

       was unlikely to reoffend and had real insight into the causes of his offending and demonstrated a record of rehabilitation;

    3. (3)

       had very good prospects of rehabilitation and not reoffending; and

    4. (4)

       was remorseful.

14. [28]

    Finally, the sentencing judge found that Mr Karimjee has undertaken continuing professional development courses on ethics, has voluntarily surrendered his practising certificate and has had himself removed from the roll of solicitors, because he believed that his offending conduct did not warrant his continuing to practise in a respectable and honourable profession.

Submissions

1. [29]

   The Council accepted that it is required to establish that Mr Karimjee is probably permanently, or at least indefinitely, unfit to practise: Council of the Law Society of New South Wales v Zhukovska [2020] NSWCA 163 at [115]. The ultimate question for the Court is whether, as at the time of hearing, the respondent has been shown not to be a fit and proper person to be a lawyer of the Supreme Court: A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [15], [21]; Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [5]; Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [44]-[45].

2. [30]

   The Council submitted that removal from the roll is warranted because the offending was at the high end of the range of objective seriousness in the context of professional conduct. The Council also submitted to the effect that the sentence served by Mr Karimjee has little bearing on the finding this Court should make as to his current unfitness to practise. Although Mr Karimjee has now served his sentence, the cessation of unfitness to practise does not necessarily coincide with expiry of a criminal sentence: Council of the Law Society of New South Wales v Parente at [34]. Additionally, although Mr Karimjee demonstrated insight and remorse on sentencing, this is not evidence in the present disciplinary proceedings that he has taken steps to achieve full rehabilitation in the professional context.

3. [31]

   Mr Karimjee does not contest the orders sought by the Council. Mr Karimjee accepted that his name should be removed from the roll and was willing to assist with that process. The only qualification to his agreement with the submissions made by the Council was that Mr Karimjee submitted that he is indefinitely unfit, rather than permanently unfit.

Consideration

1. [32]

   As the Council contends, the question for the Court is whether, as at the time of hearing, the respondent has been shown not to be a fit and proper person to be a lawyer of the Supreme Court.

2. [33]

   It is clear that the Court must satisfy itself that it is appropriate to make orders removing a legal practitioner’s name from the roll, even if the defendant concedes that the orders should be made: Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451; [2008] NSWCA 135 at [9]; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [12]; Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255 at [13].

3. [34]

   In a case with resonance in the present circumstances, Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJR 563 at 564, McTiernan J said:

4. [35]

   In Ex parte Lenehan (1948) 77 CLR 403 at 422; [1948] HCA 45, Latham CJ and Dixon and Williams JJ said in relation to the test for removal from the roll of “probable permanent unfitness” (and the question of possible reinstatement):

5. [36]

   In Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53, Mr Jafari had pleaded guilty to dishonestly appropriating property belonging to the Commonwealth with the intention of permanently depriving the Commonwealth of that property contrary to s 131.1(1) of the Criminal Code Act 1995 (Cth). The charge arose out of an unauthorised disbursement of $220,000 by Mr Jafari from a trust account for which he was responsible whilst employed as a solicitor by the Australian Government Solicitor. These funds were used to repay a “Ms M”, after Mr Jafari gambled away funds Ms M had entrusted to him for investment purposes. Mr Jafari was originally sentenced to two years’ imprisonment to be served by way of an Intensive Correction Order (varied by the NSW Court of Criminal Appeal to a sentence of imprisonment for three years). Bell P (with whom White JA and Emmett AJA agreed) held:

6. [37]

   Bell P was satisfied that the uncontested orders sought by the Council in that case should be made. The facts disclosed at least four elements of serious dishonesty:

7. [38]

   In Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40, Mr Siggins had, over a number of years, made knowingly false representations to the Bar Association of Queensland about his current and intended principal place of practice, and had contravened NSW law by failing to apply for a NSW practising certificate from 1 July 2009 to 30 June 2017. The Court held:

8. [39]

   The Court found that Mr Siggins lacked the honesty and integrity required of a legal practitioner such that he was unfit to practise. He had never conceded any wrongdoing, maintained his denial of wrongdoing, demonstrated no remorse or contrition, and approached the proceedings in a manner which was “lacking in candour, having regard to the nature of disciplinary proceedings and Mr Siggins’ status as an officer of the court”: at [192]-[195].

9. [40]

   In the present case, Mr Karimjee’s status as a legal practitioner laid upon him the strict obligation not to interfere, or attempt to interfere, with the course of justice. Having violated that duty, he was guilty of very serious criminal conduct warranting removal from the roll. We are unable to accept the characterisation of the conduct as demonstrating that he was “indefinitely” rather than probably permanently unfit to practise. It bears emphasis that the offence Mr Karimjee committed was one which strikes at the heart of our system of justice.

10. [41]

    Mr Karimjee actively encouraged members of his community to lie to the police. Mr Karimjee conceded that he was aware of the improper and illegal nature of his conduct in encouraging his community members to maintain their “story”. By engaging in the offending conduct, Mr Karimjee deliberately placed his personal desire to assist members of his community in misleading the police above his professional obligations to the Court and to the administration of justice as a legal practitioner.

11. [42]

    Mr Karimjee’s proved offending conduct was disgraceful. It was conduct falling far below the high standards expected of a legal practitioner. We are comfortably satisfied that the Council has demonstrated that Mr Karimjee is currently probably permanently unfit to practise as a solicitor as he lacks the essential qualities of character and trustworthiness required of a solicitor.

Conclusion and orders

1. [43]

   The parties agreed that each should bear their own costs and no order as to costs was sought.

2. [44]

   For the foregoing reasons the Court makes the following orders:

   1. (1)

      Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) on the grounds set out in ss 8(1)(d) and 8(1)(e) prohibiting for a period of 80 years the disclosure by publication or otherwise anywhere in the Commonwealth of Australia of:

   2. (2)

      Declare that Hussein Karimjee is not a fit and proper person to remain on the roll of Australian lawyers maintained pursuant to s 22 of the Legal Profession Uniform Law;

   3. (3)

      Order that the name Hussein Karimjee be removed from the roll.