Depression and suppression … Bring on the psychiatrists … Special pleading for special people … Identities scrubbed from the record … Open justice takes the hindmost … Janek Drevikovsky reports
Solicitor XX is chowing down on eight years of porridge for stealing from his clients. But you won’t find his name in the daily blatts.
In March, Supreme Court judge David Davies suppressed XX’s name, his family members’ name and anything that would identify his former law practice.
The order will stay in force until XX has been out on parole for 18 months. Parole won’t be granted until August 2024 at the earliest, meaning XX will stay incognito until at least 2026.
XX’s misdeeds were extensive. Operating out of three law practices – in Sydney, Brisbane and Penrith – he targeted vulnerable clients, stealing their funds to pay his business debts and personal expenses. He stole $290,000 in veterans’ compensation from a former airforce pilot. From a client with Alzheimer’s, he took $50,000.
He even filched from the pensioner parents of District Court judge Roy Ellis, taking almost a million dollars.
At last, in 2018, XX was audited, a receiver was appointed and charges were laid. XX was diagnosed with bipolar disorder and, in early 2019, was admitted to the Gordon Private Hospital.
Yet he still dealt with clients and offered legal services until August 2019, when the Supreme Court issued an injunction.
The lawyer pleaded guilty to obtaining financial advantage by deception and was sentenced.
His serious mental health problems are the reason for the suppression order. Justice Davies heard from psychiatrist Richard Furst, who once treated disgraced Sydney stockbroker Renee Rivkin.
Dr Furst was certain that, in Rivkin’s case, media attention “caused a profound negative psychiatric and psychological impact … and was ultimately a substantive cause in Rivkin’s actions of killing himself”.
There was a real risk the same fate would befall XX, Dr Furst said, unless his name was suppressed.
Justice Davies agreed suppression was necessary for the lawyer’s safety, one of the criteria for imposing an order under the Courts Suppression and Non-Publication Order Act 2010. He also ordered that his name be expunged from earlier, online judgments.
Council of the Law Society of NSW v XX (No 4) [2021] NSWSC 192
A Sydney barrister racked up a $550,000 tax debt and ignored the Bar Council when it told him to file a return. But for the next 20 years, this former brief will be known only as “DEJ”, under a Court of Appeal suppression order.
The barrister did not comply. So in 2016, the Council refused to renew his certificate. It also began proceedings to expel DEJ from the trade.
Around this time, DEJ was diagnosed with a depressive disorder. He argued his mental illness excused his aberrant conduct.
The tribunal was not convinced. It also found that DEJ had lied to the Bar Council when, in an affidavit, he told them the family home was the sole property of his wife and so could not be used to pay his tax bill.
The brief appealed. Justice Anthony Meagher found that DEJ had not lied to the Bar Council about the family home.
But HH agreed that DEJ’s depression was no excuse for not paying his taxes. He cited the evidence of a psychiatrist, Dr Browne, who said:
“It’s possible that he suffered a mild, possibly moderate, persistent depressive disorder during that period but it wasn’t severe enough to impair his functional capacity to work and earn income.”
The main reason DEJ didn’t pay his taxes, according to Justice Meagher, was that he didn’t make enough money to clear the debt.
Without a reasonable excuse, DEJ had to be struck off, his Honour said. Justices Richard White and Robert Macfarlan agreed.
Then came the suppression order. Because of DEJ’s serious mental disorder, the only course was to suppress his and his wife’s name.
There was psychiatric evidence explaining just why the order was necessary. But Justice Meagher decided to redact it from his published reasons.
The order will last for 20 years, to “take account of DEJ’s age”.
DEJ v Council of the NSW Bar Association [2021] NSWCA 72
In our third example of the genre, the NSW Court of Appeal’s blue pencil veered out of control, suppressing entirely a decision about apprehended bias, a criminal trial, and a judge who has been partnered to a crown prosecutor for 29 years.
The catchwords speak for themselves:
Court of Appeal President Andrew Bell and appeal judges Robert Macfarlan and Richard White were clearly convinced the affair shouldn’t see the light of day, for whatever reason.