REID v NEW ZEALAND LAW SOCIETY [2023] NZHC 2370

REID v NEW ZEALAND LAW SOCIETY [2023] NZHC 2370 [30 August 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-836[2023] NZHC 2370UNDER The Lawyers and Conveyancers Act 2006BETWEEN DAVINA VALERIE REIDAppellantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 25 July 2023Counsel: J N Bioletti and G Whata for AppellantP Collins for RespondentJudgment: 30 August 2023JUDGMENT OF MUIR JThis judgment was delivered by me on 30 August 2023 at 11.00 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: New Zealand Law Society, WellingtonIntroduction[1] Ms Davina Reid (née Murray) is a former criminal barrister who was struckoff the roll of barristers and solicitors of the High Court of New Zealand (the roll) in2015 following conviction for having delivered contraband to a prisoner, being aniPhone, cigarettes and a lighter, in breach of s 141 of the Corrections Act 2004.[2] In April 2022, she applied for restoration to the roll under s 246 of the Lawyersand Conveyancers Act 2006 (the LCA). On 24 March 2023, the New Zealand Lawyersand Conveyancers Disciplinary Tribunal (the Tribunal) dismissed her application.1[3] She now appeals that decision to this Court. The appeal is as of right unders 253 of the LCA.Background[4] At the time of her offending under the Corrections Act, Ms Reid had beenpractising law in Auckland for approximately five years. She was counsel to Mr LiamReid, a prisoner convicted in relation to charges of rape, murder and attempted murder.She had acted for him for an extended period. She had, and retains, a firm personalbelief in his innocence.[5] The following summary of the facts and circumstances relating to heroffending derives from a judgment of Venning J dismissing her appeal against theDistrict Court's refusal to discharge her without conviction:2[4] On 7 October 2011 the legal visits supervising officer at Mount EdenCorrectional Facility (MECF), Ms Cooper, took possession of an AppleiPhone, a packet of Marlboro cigarettes and a Bic cigarette lighter. Theprosecution asserted that they had been introduced to MECF by Ms Murrayand given to an inmate, Mr Liam Reid.[5] Ms Murray was Mr Reid's legal adviser. As his counsel she hadaccess to M[r] Reid on numerous occasions over a period of years.[6] Ms Murray denied that she had delivered the contraband to Mr Reid.Her trial took place over seven days. Ms Murray represented herself, althoughshe was assisted by Mr B J Hart as a McKenzie friend and Mr Hirschfeld acted1 Reid v New Zealand Law Society [2023] NZLCDT 7.2 Murray v New Zealand Police [2014] NZHC 337.as amicus curiae. Although Ms Murray did not give evidence at her trial, MrReid did. Judge Collins recorded that the defence advanced was that aCorrections Officer, Noel Purcell, had conspired with another CorrectionsOfficer, Maurice Stanley to falsely accuse Mr Reid of possession of the itemsand Mr Purcell or someone known to him had introduced those items into theCorrections Facility. Ultimately Judge Collins was satisfied beyondreasonable doubt that Ms Murray had introduced the items. My review of theevidence and the judgment confirms the case against Ms Murray wasoverwhelming.[6] At sentencing, Judge Collins described her offending as "if not the most seriousof its type, very close to that".3 Nevertheless, although the offence attracted amaximum penalty of three months' imprisonment, he imposed a sentence of 50 hours'community work.4[7] On appeal, Venning J concluded that Judge Collins "was right to find thatMs Murray's offending was serious offending of its type so that, even taking intoaccount the mitigating factors referred to, the gravity of the offending in this case washigh".5[8] Following her conviction, Ms Reid was declined a practising certificate andsubsequently struck off the roll on 26 February 2015. In its decision preceding herstriking off, the Tribunal described her offence as one that "goes directly to the heartof the standing of the profession in the community",6 and found that "[t]he breach oftrust and abuse of professional privilege most certainly reflect on fitness to practise."7[9] Subsequently, in June 2017, Ms Reid married her former client, Mr Reid, atParemoremo Prison.[10] Approximately seven years after her striking off, Ms Reid applied for her nameto be restored to the roll. The essence of her case, as summarised by the Tribunal, wasthat:3 New Zealand Police v Murray DC Auckland CRI-2013-004-003095, 1 October 2013 at [40].4 At [42].5 Murray v New Zealand Police, above n 2, at [43].6 Auckland Standards Committee No 1 v Murray [2014] NZLCDT 88 at [41].7 At [42].(a) the precipitating event — her conviction for delivering contraband toMr Reid — was minor and had been expunged from her record byoperation of the Criminal Records (Clean Slate) Act 2004 (the CleanSlate Act);(b) responses to her offence by the criminal courts, the New Zealand LawSociety and the Tribunal had been disproportionate and discriminatoryand that she should be treated similarly to others who had been re-enrolled;(c) the force of the precipitating event had now been spent, she had notoffended since, she was older and more mature, she had recovered fromher whakamā and her mana was now restored;(d) her re-enrolment would serve sound social purposes given her ability,experience and desire to advocate for the underprivileged, and a needfor more wahine Māori lawyers generally; and(e) restoration would see her skills put more fully to use for the benefit ofher employer, Te Whānau o Waipareira and Waipareira Trust, who haveprovided her with considerable rehabilitative support.8The Tribunal decision[11] The Tribunal declined Ms Reid's application for re-enrolment citing the mostrecent and relevant Supreme Court decision, the New Zealand Law Society v Stanley.9It correctly identified that the matter necessarily evaluated was whether Ms Reid isnow a fit and proper person to be re-enrolled. Significantly, in an observation that isas relevant to this appeal as to the application before it, the Tribunal stated:10 We must disregard irrelevant matters. A lawyer need not be popular, norneed a lawyer hold conventional views on social or political matters. In thepresent case, Ms Reid's marriage to a notorious prisoner convicted of rape and8 Reid v New Zealand Law Society, above n 1, at [10].9 New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50.10 Reid v New Zealand Law Society, above n 1, at [8].murder has attracted adverse comment in the press. Her marriage and thatcomment are irrelevant to our evaluation.[12] In a lengthy section of its decision headed, "Has the force of past wrongs beenspent?", the Tribunal first identified that although Ms Reid's conviction fell under theClean Slate Act so that, in most contexts, she could now legally state that she had nocriminal record, pursuant to s 19(3)(b) of that Act, her record remained nonethelessrelevant for the purposes of her application to the Tribunal.11[13] It then undertook an assessment of the gravity of Ms Reid's offending and indoing so ignored any question about how she brought the contraband into the prisonand whether her actions were premeditated. It nevertheless came to the sameconclusions as Judge Collins and Venning J in terms of gravity, concluding:12 we do not regard her behaviour in delivering the items to Mr Reid in prisonas a minor infringement. We find it was a gross breach of trust and an abuseof her privileged position as a lawyer.[14] The Tribunal noted that, as a consequence of her actions, clients and counselare now generally separated by physical barriers in the prison environment and thatlawyers are delayed in entering prisons because of search requirements introduced inresponse to her offending.13[15] It is also clear that the Tribunal was equally (if not more so) troubled byMs Reid's response to the charge laid against her. Although, as the Tribunal pointedout, she was entirely within her rights to put the Crown to proof, her defence proceededon evidence from Mr Reid known by her to be false, namely, that the items in questionhad been introduced into the prison by virtue of a conspiracy between two namedCorrections officers. The Tribunal regarded her behaviour in relation to those officersas "egregious",14 stating that to "shelter behind accusations she knew to be falsedemonstrates a defect of character incongruent with the integrity required in a personadmitted to the considerable privileges of being a lawyer".1511 At [17]–[18].12 At [28].13 At [28].14 At [47]15 At [47].[16] The Tribunal further noted three previous disciplinary findings against her. Itdescribed her record as "remarkable" in the context of such a short career.16 It saidthat these previous matters disclosed a similar pattern of failure to observe professionalboundaries, which had not been addressed in her application for readmission. As aresult, the Tribunal was left with no information on what insights she may have intothis pattern of behaviour and what steps she had taken to recognise triggers and avoidrepetition.17[17] It also noted what it described as a "lack of candour" when, prior to theoperation of the Clean Slate Act on her Corrections Act conviction, she describedherself to an Australian employer as having no previous convictions.18 The Tribunalsaid that it was "unimpressed" by her explanation that she had assumed onlyAustralian convictions required disclosure.19[18] The Tribunal then proceeded to embark on what it described as its "forward-looking" evaluation. It, correctly in my view, identified its task as not ultimatelyinfluenced by the number of referees but by:20 evidence to satisfy us that Ms Reid has gained a moral compass that sheevidently lacked formerly; that she has understood and accepted herwrongdoing and is soundly based so we can have confidence she will not erragain.[19] In findings critical to the outcome of the application, the Tribunal held:[55] In our view, Ms Reid is yet unable to fulsomely acknowledge herwrongdoing. This may be because she regards it as of small moment. Thatmay be exacerbated because she feels she has been treated disproportionatelyand discriminatively. These are barriers of genuine remorse without whichchange is impossible.[57] Although she said she admitted what she did was wrong, when askedwhy it was wrong, her answer focussed mostly on the unfortunateconsequences it had for her and her whānau. It took several questions beforeshe answered that it was wrong to breach the law. She did not volunteer that16 At [30].17 At [32].18 At [36]. When the information subsequently came to light, Ms Reid was dismissed from heremployment.19 At [36].20 At [51].unlawful acts were a poor example for a lawyer to set. She did not addressthe danger of introducing a lighter or an iPhone into a prison. We are left withthe view that she is mostly sorry about having been found out and called toaccount.[58] Tribunal member Matthews affirmed the progress she had made inovercoming her whakamā and recovering her own sense of mana, but went onto challenge her, and later explore with Mr Tamihere, in tikanga terms, aboutthe partial nature of the process she described. For example, she has not madeany gesture of remorse, apology or reparation to the Corrections officers who,for the period pending trial, and during trial, knew they would be cast by hercase as the wrong doers, something Ms Reid knew was false. As noted earlier,it may be too late for such a move to bring healing to those two officers andtheir whānau.[59] As Ms Reid describes it, her emotional recovery seems to be limitedto her own internal process without any sign of compassion to those she haswronged or hurt. When she says: "I simply wouldn't be here today if I wasn'tin a position to acknowledge that there was a brokenness and it has beenhealed", we look for consonant signs of insight and substantial remorse butwe fail to find it. Her situation in this regard seems quite different from thelevel of rehabilitation that emerged in Leary. Her sensitised reaction to mediaportrayals; her inability to comprehend how others view her conduct asreprehensible; and her attraction to flimsy technicalities that might seem toexcuse her: contribute to showing she has not truly made peace with herproblematic past, despite her avowals to the contrary.(footnotes omitted)[20] The Tribunal acknowledged that Ms Reid had a genuine passion to advocatefor those she regards as underprivileged but emphasised that she could not do so as alawyer if unqualified by reason of character.21 It concluded that her character defectsremained "profound",22 noting:[68] Although several years have elapsed since she was struck off, ourevaluation, looking to the future, is that Ms Reid continues to lack genuineinsight into those features that led to her plight. Her record of blurringprofessional boundaries, becoming over-involved with clients, blatantlydisregarding the law, advancing untruth or obscuring the truth: blight herability to satisfy us that she is now a fit and proper person to be re-enrolled.She has no real insight into her wrong-doing, continues to downplay it, andlacks compassion for those she has harmed through her shortcomings ofcharacter. We do not find that she has genuine remorse for what she did.Instead she demonstrates self-interest and regret for the damage she hascaused herself and those near her.21 At [62].22 At [70].[21] The Tribunal concluded in a unanimous decision of its five members that itwas "far from satisfied" that Ms Reid was a fit and proper person to have her namerestored to the roll.23Approach on appeal[22] Appeals under s 253 of the LCA against, inter alia, decisions decliningapplication for restoration to the roll, are by way of rehearing. Mr Collins, counsel forthe New Zealand Law Society, advises me that this is the first occasion on which therehas been an appeal to the High Court from such a decision.[23] I approach the appeal on a basis consistent with the approach taken by the HighCourt on general disciplinary appeals, applying the well-established principles inAustin, Nichols & Co Inc v Stichting Lodestar.24[24] Accordingly, while I must consider the merits of the case afresh,25 I mustnevertheless be persuaded that the decision under appeal is wrong26 and may give dueregard to the fact that the decision declining re-enrolment was made by a specialisttribunal.27Legal principles[25] The Tribunal's jurisdiction to make orders restoring a person's name to the rollarises under s 246 of the LCA. The essential test is whether the applicant demonstratesthat they are a fit and proper person to practise as a barrister or as a solicitor or asboth.28 If so demonstrated, the Tribunal "may order" that the applicant's name berestored to the roll.2923 At [71].24 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.25 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].26 Austin, Nichols & Co Inc v Stichting Lodestar, above at n 24, at [13].27 Orlov v New Zealand Lawyers and Conveyancers Disciplinary Tribunal [2014] NZHC 1987,[2015] 2 NZLR 606 at [191] and Young v National Standards Committee [2019] NZHC 2268 at[34].28 Lawyers and Conveyances Act 2006, s 246(3).29 The Law Society does not contend that its decision in this case involved the exercise of adiscretion. It acknowledges that its decision was a substantive determination on the merits afterreceiving and hearing evidence. As a result, the appeal does not involve "a search for error" aswould be the case if the Court was reviewing the exercise of discretion: see X v Y StandardsCommittee [2023] NZHC 1446 at [41].[26] Section 55(1) of the LCA prescribes relevant matters that can be taken intoaccount for the purposes of determining whether a person is fit and proper to beadmitted to the roll. I accept Mr Collins' submission that these are similarly relevantto the assessment of a person's fit and proper status for the purposes of restoration.These matters relevantly include:(a) whether the person is of good character; and(b) whether the person has been convicted of an offence in New Zealandor a foreign country, and if so:(i) the nature of the offence;(ii) the time that has elapsed since the offence was committed; and(iii) the person's age when the offence was committed.30[27] Section 55 must, in turn, be considered within the overarching purposes of theLCA and the obligations which it enshrines, in particular:(a) the statutory purpose to maintain public confidence in the provision oflegal services and to protect the consumers of those services;31 and(b) the fundamental obligation of every lawyer to "uphold the rule of lawand facilitate the administration of justice in New Zealand".32[28] There is now a substantial body of jurisprudence in relation to the fit and properstandard. The most recent and authoritative exposition emerges from the majorityjudgment of the Supreme Court in New Zealand Law Society v Stanley.33 In a30 Pursuant to s 55(3), the matters listed in s 55(1) are not exhaustive.31 Lawyers and Conveyancers Act, s 3(1)(a) and (b).32 Lawyers and Conveyances Act, s 4(a).33 New Zealand Law Society v Stanley, above n 9.statement approved by the minority,34 the majority noted the relevant principles asfollows:35(a) The purpose of the fit and proper person standard is to ensure thatthose admitted to the profession are persons who can be entrusted tomeet the duties and obligations imposed on those who practise aslawyers.(b) Reflecting the statutory scheme, the assessment focusses on the needto protect the public and to maintain public confidence in theprofession.(c) The evaluation of whether an applicant meets the standard is a forwardlooking exercise. The Court must assess at the time of the applicationthe risk of future misconduct or of harm to the profession. Theevaluation is accordingly a protective one. Punishment for pastconduct has no place.(d) The concept of a fit and proper person in s 55 involves considerationof whether the applicant is honest, trustworthy and a person ofintegrity.(e) When assessing past convictions, the Court must consider whetherthat past conduct remains relevant. The inquiry is a fact-specific oneand the Court must look at all of the evidence in the round and makea judgement as to the present ability of the applicant to meet his or herduties and obligations as a lawyer.(f) The fit and proper person standard is necessarily a high one, althoughthe Court should not lightly deprive someone who is otherwisequalified from the opportunity to practise law.(g) Finally, the onus of showing that the standard is met is on theapplicant. Applications are unlikely to turn on fine questions of onus.[29] Although Stanley was an admission case, I accept these principles as equallyapplicable in the context of a former lawyer's application for restoration to the roll.[30] The "forward looking exercise" mandated by the Court has, as part of itsultimate raison d'être, the values of redemption and forgiveness which, as Kirby Pexplained in Law Society of New South Wales v Foreman, fit within a concept for socialjustice for a very practical reason, namely, the public interest which resides in theconstructive use of the skills of qualified persons who have undergone many years oftraining.36 The public interest and the interests of the profession, in the encouragement34 At [105].35 At [54].36 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (CA) at 419.of rehabilitation of those members of the profession who have lapsed, is a significantone.[31] Nevertheless, the nature of any past conviction (or disqualifying conduct) doesneed to be considered. Offending may be so serious as, for example, in Layne vAttorney-General of Grenada, where the relevant conviction was for murder, that anapplicant can never effectively meet the good character condition.37 By contrast, asthe Supreme Court observed in Stanley, some convictions will be in the trivialcategory, or be so dated as to lose any significance or may simply stem from youthfulimmaturity.38 The ultimate test is whether the past conduct "remains relevant".39 Asthe Supreme Court observed, that test mirrors but updates former references towhether the "frailties" or "defects of character" reflected by previous convictions canbe regarded as "entirely spent" or "safely ignored".40 As the Supreme Court furtherobserved, whether past conduct remains relevant is a fact-specific enquiry involvingconsideration of all the evidence in the round.41[32] One aspect of this holistic assessment will always be how the applicant nowresponds to his or her previous offending. In Guest v New Zealand Law Society, theTribunal put it in the following way:42 We also understand the natural human reaction to engage in self-justification and minimization. In this context however a struck offpractitioner who seeks reinstatement cannot have it both ways. An applicantfor restoration has to acknowledge his or her wrongdoing fully andunambiguously and in so doing must suffer the risk that such wrongdoing willbe seen as a disqualifying reinstatement.[33] I accept that the existence of full and unambiguous acknowledgement ofwrongdoing is an important requirement of any assessment into whether past conductremains relevant. Relevant in this respect means relevance in the context of a currentassessment of whether the applicant is fit and proper, including whether they are nowof good character. Part of good character is an ability to acknowledge fully and37 Layne v Attorney-General of Grenada [2019] UKPC 11, [2019] 3 LRC 459 at [53].38 New Zealand Law Society v Stanley, above n 9, at [43].39 At [45].40 At [45].41 At [46].42 Guest v New Zealand Law Society [2009] NZLCDT 12 at [82].unambiguously prior wrongdoing. Only once an applicant has arrived at that pointwill he or she typically be in a position to identify reliably the triggers of previouswrongdoing and the mechanisms necessary to avoid its reoccurrence. Likewise,demonstration of full and unambiguous acknowledgement is a precondition of genuineremorse which is itself significant in the assessment of whether past wrongdoingremains relevant.[34] It is clear that these considerations loomed large in the Tribunal's considerationof Ms Reid's application. It concluded that "it appears she continues to look forarguments, however unfruitful, to distance herself from her admitted behaviour".43 Iwill need to revert to the evidence on which this conclusion was based later in thisjudgment.Ms Reid's case[35] Mr Bioletti, counsel for Ms Reid, submitted that the Tribunal failed to apply ormisapplied the threshold test in Stanley by focussing disproportionately on Ms Reid'spast wrongdoing when the evidence "in the round" was that she is now neither anactual nor apparent risk to either the profession or the public. He submitted that theTribunal:(a) refused to make a prospective assessment of Ms Reid's contribution toMāori consumers of legal services;(b) made an assessment which was "plainly wrong" in respect of herintegrity and good character;(c) failed to accept evidence of her rehabilitation;(d) failed to accept that her "defect of character" was now "spent";(e) failed to objectively assess her role as a wahine Māori in New Zealand'slegal environment;43 Reid v New Zealand Law Society, above n 1, at [35].(f) failed to weigh the difference she can make in the area of criminaljurisprudence and, in particular, in the area of forensic analysis; and(g) failed to recognise her remorse for past wrongdoing.[36] Mr Bioletti submitted that the Tribunal's decision lacked proportionality,placing too much emphasis on historic events which, by virtue of the Clean Slate Act,have now been expunged. He invokes the Court of Appeal's decision inConley v Hamilton City Council,44 to suggest that "proportionality" in this contextinvolved application of balancing, necessity and suitability tests.45[37] In oral argument he submitted that there were two "elephants in the room"which needed to be addressed at the outset.46 The first he said was that Ms Reid hadan ongoing and honest belief in the innocence of Mr Reid. The second was that shehad formed an emotional attachment to Mr Reid and ultimately married him. Hesubmitted that although the Tribunal stated that it regarded the marriage as irrelevantand that it was immune to the adverse comment which this had attracted in the media,it was nevertheless a factor which operated on the mind of the Tribunal in itsassessment of Ms Reid's character. Relatedly, he submitted that Ms Reid's emotionalcommitment to Mr Reid and her unwavering belief in his innocence, necessarilyreflected in a more defensive approach to acknowledgement of previous wrongdoingthan might otherwise have been the case, but should not be confused with an absenceof genuine remorse or failure to acknowledge wrongdoing.[38] Mr Bioletti was also critical of how the Tribunal approached the potentialapplication of tikanga to the application. He suggested the Tribunal's comments that,44 Conley v Hamilton City Council [2007] NZCA 543, [2008] 1 NZLR 789.45 At [54]–[55]. The Court of Appeal noted that the proportionality doctrine was a "respectable tool"in approaching cases where (inter alia) there is "a distinctly or manifestly improper balancing ofrelevant considerations". The Court identified three constituent components to the doctrine: a"balancing test", which requires a balancing of the ends which an official decision attempts toachieve against the means employed to achieve them; a "necessity test", which requires that wherea particular objective can be achieved by more than one of the available means, the least harmfulof these means should be adopted to achieve that objective; and a "suitability test", which requiresauthorities to employ means which are appropriate to the accomplishment of a given law, andwhich are not in themselves unlawful or incapable of implementation.46 An expression which Mr Collins, in my view, accurately defined in reply as an "obvious butunacknowledged source of compelling influence"."[Professor Rawinia Higgins'] proposition, that inclusion of a tikanga Māori processas part of the restorative process may be well overdue, is a valuable idea that the NewZealand Law Society might well take up"47 and that "tikanga may provide a differentprocess",48 both missed the point — namely, that tikanga was relevant to theassessment the Tribunal was required to undertake, was not just a possible proceduraladjunct, and that the whakamā Ms Reid had endured, but from which she had nowemerged, was a very important consideration in any assessment of whether herredemption could now be considered complete.[39] In respect of the absence of empathy identified by the Tribunal towards theCorrections officers falsely accused in the context of Ms Reid's defence, Mr Biolettisubmitted that 10 years after the event it was now too late for that issue to be addressedand that it would be wrong for her readmission prospects to be permanently blightedby that omission.[40] Finally, he emphasised:(a) The considerable support structures of the Waipareira Trust available toMs Reid within the context of her current employment, the mana of itsChief Executive, the Hon John Tamihere, and the fact that the Trustrepresents approximately 86,000 people who the Tribunal could assumeto repose trust in Ms Reid based on Mr Tamihere's support. He saidsuch support was significantly more meaningful in any currentassessment of good character than references from legal luminarieswhich he suggested were unlikely, given Ms Reid's socio-economicand cultural background.(b) The importance in contemporary New Zealand of legal representationby wahine Māori and the particular skills Ms Reid could bring to therepresentation of those facing adversity, given her own experience ofsuch.47 Reid v New Zealand Law Society, above n 1, at [61].48 At [61].[41] Mr Bioletti also drew my attention by way of contemporary demonstration ofMs Reid's good character, to the fact that, on receipt of the Tribunal's decision, sheadvised, against interest, of the error in its supposition that she was legally aided andnot therefore liable to a costs order. In a subsequent minute, the Tribunal thanked herfor drawing the matter to its attention and invited the Law Society to advise whethercosts were sought and, if so, in what sum. It has since advised that an award of $27,150is sought. That matter is currently reserved.[42] Technically, this is in the nature of new evidence on appeal, and I deal with itas if an application had been made in that respect. Obviously, the evidence is fresh inthe sense that it post-dates the Tribunal's decision. I accept that, in the respectidentified, it indicates Ms Reid showed good character and is relevant.Discussion[43] As indicated, I must look at the merits of Ms Reid's application afresh but mustbe persuaded the Tribunal's decision was wrong. I may also give due regard to whatis a specialist tribunal assessment. In that respect, I accept Mr Collins' submissionthat this was a highly qualified and diverse panel of which two of fivemembers — Ms Gaeline Phipps and Ms Pele Walker MNZM — were female.Tribunal member Mr Hector Matthews, the executive director of Māori and PacificHealth at the Canterbury District Health Board, has a high level of competency in teao Māori and fluency in te reo. The Deputy Tribunal Chair, Dr John Adams, a retiredDistrict Court Judge, presided, and the Panel included retired High Court Justice, theHon Paul Heath KC. I accept but am not blinded by the Tribunal's specialistcompetency in assessing character and the range of life experiences which its membersbrought to that task.[44] I reject at the outset the proposition that the Tribunal somehow wasunconsciously influenced by Ms Reid's emotional connection with and subsequentmarriage to a prisoner convicted of rape and murder. That issue was stated to be"irrelevant", as was adverse reaction to the marriage in the media. I take a Tribunalof the quality referred to at its word in this respect. In any event, since I similarlyregard the matter as irrelevant and am charged with looking at the matter afresh, it willhave no bearing on the outcome of Ms Reid's appeal. Ms Reid loves her husband.She is entitled to do so.[45] Similarly, I reject any suggestion of unconscious racial bias in the decision, ifindeed that was Mr Bioletti's intention when he referred to the decision as having a"hint of eugenics about it". I again emphasise the diversity of the Panel and the qualityof its members. In my view — one formed after reading a transcript of theevidence — Ms Reid's ethnicity had no bearing on the Tribunal's decision which wasbased solely on its assessment of her character.[46] As I have indicated, the past conduct to which the Tribunal's ongoing relevancyinquiry was directed, included two principal components:(a) the offending for which Ms Reid was charged under theCorrections Act; and(b) the nature of the defence run by Ms Reid to that charge.49[47] Adopting a forward-looking evaluation, these two issues invite slightlydifferent considerations. As to the offending itself, identification of when it occurredand its seriousness is essential for the reasons identified in the Supreme Court inStanley — some convictions will be in the trivial category or will be so dated as tolose significance. Neither was the case here. The offending occurred approximatelyten years ago. It is in a very different category in that respect to the offending in caseslike Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc,50which occurred approximately 30 years prior.[48] I agree with the sentencing Judge, with Venning J on appeal, and with theTribunal (in both its decision to strike off and on the restoration application) that,49 The Tribunal also considered three prior adverse disciplinary findings and noted that Ms Reid'sfailure to address "at all" the disturbing pattern of blurred professional boundaries which theysuggested, left it without any information on what insight she may have into this pattern, whatsteps she had taken to recognise triggers and how to avoid repetition. It further consideredMs Reid's 2017 failure to inform Australian employers of her conviction.50 Grant v Restructuring Insolvency & Turnaround Association New Zealand Inc [2020] NZHC2876, [2021] 2 NZLR 65 — a judicial review of the application of the good character test in thecontext of an application for membership of RITANZ.although the maximum sentence for the Corrections Act offending was only threemonths' imprisonment, nevertheless, it was, in the particular context in which itoccurred (Ms Reid's legal representation of the prisoner to whom the items weregiven), especially serious. As the Tribunal remarked in its decision precedingMs Reid's striking off, the conduct went "directly to the heart of the standing of theprofession in the community",51 and constituted a "breach of trust and abuse ofprofessional privilege [which] most certainly reflect on fitness to practice".52[49] Given how serious Ms Reid's offending was, I agree with the Tribunal that acomplete and unconditional acknowledgement of wrongdoing and of the gravity ofher offending was always a necessary first step towards establishing an absence ofcontemporary relevance. Only at that point could she be considered to haveundertaken the level of self-reflection necessary to identify the relevant triggers behindher wrongdoing and necessary coping mechanisms. Indeed, without suchacknowledgement, it is difficult to see how anyone who had erred so significantly andwith such consequences for the whole profession could be considered of goodcharacter. It is in that sense a sine qua non.[50] I turn then to the evidence before the Tribunal on this point. Mr Collinscommenced his cross-examination of Ms Reid by confirming she understood that theTribunal was engaged in a forward-looking exercise but one in which it was necessaryalso to examine the past. She said that she did. The following exchange followed:Q. I want to ask you about a finding this Tribunal made of you and thepenalty, the decision when you were struck off, it's a decision datedthe 16th of March 2015, so about eight years ago. The Tribunal then,having heard from you at the hearing of the disciplinary charge andthen hearing submissions and so on, said that the entire picturepresented by your offending, your subsequent conduct and yourprevious disciplinary history is of a practitioner with little or nounderstanding of "her ethical obligations to clients, her profession, orthe institutions of justice". Do you accept that was a fair and accuratestatement about you at the time it was made?A. No, I don't.Q. Do you think that misrepresents you?51 Auckland Standards Committee No 1 v Murray, above n 6, at [41].52 At [42].A. I think its manifestly excessive in description.[51] Subsequently, in response to a request by Member Heath that she articulatewhy she did not now accept that her actions were wrong, the following exchangeoccurred:A. I just don't know that I can confidently articulate the depth of myunderstanding.Q. I'm not sure I understand what you mean by that. Could you justexplain it to me? Just take a moment.A. The wrongdoing has had a severe impact on my whānau, on myfriends, of which very few stand with me today. It also impacted myhusband's appeal. He has — he was intimidated — oh notintimidated, what's the word, the Press have said such nasty thingsabout him and, you know, I was described as his next victim. And yethe's got legal aid, but they don't give it to anybody. And his seniorcounsel sits here today solidly working on his appeal. So this has hadan impact on the duration of time in which he's remained in prison.That's a lot to carry.[52] That in turn elicited the following exchange with the Tribunal Deputy Chair:Q. Ms Reid, we are interested in understanding whether or not you thinkwhat you did was wrong, and you said it was wrong because of theflow-on effects on your whānau, friends and the effect on yourhusband's appeal and that you wouldn't do the same thing againbecause it would have those effects. Do I take it that you don't thinkit was wrong in itself?A. No, it was wrong, Sir.Q. Why, why was it wrong?A. Well, it breached the law is the first thing, everyone is — it's verystraightforward what the Corrections Act says, it breached my dutiesand obligations in terms of the legal profession. And, you know, Iknow it's not the worse crime in the book, Sir, but it has been treatedlike one.Q. There's been a failure — the reaction was over-inflated do you think?A. Well, Sir, there are a number of cases that the Tribunal, not necessarilyall of you, but several decisions that reflect the disparity in sentencethat's been given to different counsel.Q. Can you explain why we should see this as having been a relativelyminor indiscretion?A. Well, the statutory obligations of the Clean Slate Act require that youhave seven years of no reoffending. I've met those. That is a statutoryprescription for rehabilitation. I lean on that because I do come withclean hands, albeit that section 19 I think it says I have to disclose thisbefore you; my offending. But it is fair to say, given the manifestexcessive media attention I received, everyone knows that I don'treally have a clean slate. But if it was a significant criminal offenceit wouldn't be covered by that Act.[53] To provide full context, I record that in a subsequent exchange withMember Matthews, Ms Reid did acknowledge that the delivering of the contrabandwas serious and agreed with the proposition that her point had related to the maximumpenalty applicable to her offence under the Corrections Act and how it was "lessserious than others".[54] Nevertheless, I agree with the Tribunal's finding that, considered in its totality,this evidence indicated a lack of insight into her wrongdoing, an attempt to downplayit, and a preoccupation with self-interest and regret for the damage she had caused toherself and those near to her.53 As the Tribunal said:[57] Although she said she admitted what she did was wrong, when askedwhy it was wrong, her answer focussed mostly on the unfortunateconsequences it had for her and her whānau. It took several questions beforeshe answered that it was wrong to breach the law. She did not volunteer thatunlawful acts were a poor example for a lawyer to set. She did not addressthe danger of introducing a lighter or an iPhone into a prison. We are left withthe view that she is mostly sorry about having been found out and called toaccount.[55] I agree also with the Tribunal that, based on her evidence, Ms Reid's currentinability to fulsomely acknowledge her wrongdoing appears based in a continuingbelief that the offending was of relatively small moment and that she has been treateddisproportionately and discriminatively.54 The Tribunal was clearly right in sayingthat anyone who had conducted themselves as she did would have faced similarconsequences. And, likewise, they could have expected similar scrutiny on areadmission application. I agree with the Tribunal that Ms Reid's persistence in thisview of her offending is a barrier to genuine remorse, without which it is difficult tobe confident about lasting change.53 Reid v New Zealand Law Society, above n 1, at [68].54 At [55].[56] I am unable to accept Mr Bioletti's submission that the defensivenessdemonstrated by Ms Reid is explicable (and should therefore effectively be excused)by reference to her emotional attachment to Mr Reid and her commitment to the causeof his exoneration. I cannot see any logical connection between unqualifiedacknowledgement of the seriousness of her offending (and associated remorse) andany betrayal of her emotional attachments. She has long ago conceded that theevidence he gave identifying two Corrections officers as those responsible forintroduction of the contraband into the prison was false and that she was the source ofintroduction. To now accept in an unqualified way the significance of her offendingneither advances nor detracts from Mr Reid's position.[57] Ms Reid does not therefore satisfy me that the Tribunal was in error in itsconclusion that she has not yet reached the point of sufficiently full and unambiguousacknowledgement of her offending, its significance and implications, to have showngood character in that respect. Relatedly, she does not establish that the Tribunal wasin error when it concluded that, without such unambiguous acknowledgement, herroad to rehabilitation was incomplete for the reason that it could not otherwise besatisfied that she had sufficient insight to recognise relevant triggers and avoidrepetition.[58] As to the nature of the defence run by Ms Reid to the charge, the Tribunaldescribed this as "the opposite of frank acceptance" of her offending.55 It held:56 She was entitled to put the prosecution to proof and to defend vigorouslybut to shelter and find accusations she knew to be false demonstrates a defectof character incongruent with the integrity required in a person admitted to theconsiderable privileges of being a lawyer.[59] In this context, the Tribunal's assessment of current good character had twofacets: first, as with the offending itself, whether the wrongdoing was fully andunambiguously acknowledged; and, secondly, Ms Reid's level of remorse/compassiontowards those she had harmed through her previous shortcomings of character.55 At [47].56 At [47].[60] As to the first, the following exchanges under cross-examination by Mr Collinsbefore the Tribunal are insightful:Q. The District Court Judge spoke of your attempt to mitigate thegravity of your offending, and then said that "Previous goodcharacter must be tempered by the fact that to protect her ownposition, Ms Murray deliberately and falsely accused others." Now,with time to reflect, do you accept that finding?A. I think it's a blurry line you're riding, with respect, Mr Collins, andI'll tell you why.[61] At that point, Ms Reid embarked on a lengthy exposition about the fact thatshe was not eligible for legal aid and that because of certain defects in the investigationof Mr Reid's possession of the prohibited items, the High Court ultimately quashedwhat she described as his "internal charge and conviction". This led her to concludethat "there was actually no receiver of the item[s]".[62] At that point, the following exchange occurred with the Tribunal Deputy Chair:Q. Ms Reid, you haven't answered the question that was asked some timeago.A. Yeah, the reason I haven't answered the question, Sir, is because he'ssuggesting that my conduct in the hearing was one of bad faith.[63] The cross-examination then resumed:Q. I'm not suggesting it, I'm asking you whether you accept the findingand it's a finding that a District Court Judge upheld on appeal that youdeliberately and falsely accused the two prison officers. Do youaccept that or do you not accept that?A. I accept it, it's a finding.Q. No, no, do you accept that you did it?A. Right. What I was trying to explain to you was the circumstancessurrounding that action, but I accept that it was done, yes.Q. Do you accept that you facilitated the false evidence of Mr Reid atyour trial?A. No I don't, no I don't.[64] The position was therefore of an initially qualified acceptance based on a"finding" but ultimately acceptance that she did deliberately and falsely accuse others,albeit somewhat disingenuously in my view, denying that she facilitated the falseevidence of Mr Reid.[65] As to Ms Reid's remorse for these wrongful accusations, the followingexchange occurred:Q. Do you accept, therefore, that you did great harm to the two prisonofficers concerned personally?A. Yes I do.Q. And they had an allegation hanging over them for a long time, whichwas very serious both in their employment and possibly criminalimplications, do you accept that?A. If you say so.Q. And what steps have you taken to make good to those two prisonofficers for the hurt that you've caused them which was serious?A. I haven't taken any steps to contact them. I will remind you that I hada condition not to contact the prison for 12 months immediately afterI was convicted.Q. And that your actions which led to your striking off causedconsiderable harm to the legal profession?A. Yes.Q. And to the criminal defence bar in particular?A. Yes.Q. And until today, what steps have you taken to apologise or makeknown your remorse about that?A. I have not made any positive steps to apologise to the fraternity, butnotwithstanding that I will point out that only four objections werefiled when the Gazette Notice was placed in my application to berestored today.[66] Against this background, the Tribunal found that Ms Reid lacked genuineremorse and compassion for those she had harmed. It identified genuine remorse as aprecondition to "change" at the level it considered necessary.57 Again, I identify noerror in the Tribunal's analysis.57 At [55].[67] Mr Bioletti argues that in assessing this issue, the Tribunal made inadequatereference to tikanga. As indicated, he is critical of the Tribunal's observation that"tikanga may provide a different process but it does not alter the threshold to enableMs Reid to re-join the profession if she is unqualified by reason of character".58 Hesays (and I agree) that tikanga has potential application not only in terms of "process"but in assessment of the threshold character issue.[68] In that context, Ms Reid places significant emphasis on her evidence beforethe Tribunal that for nine years she wore the "cloak of whakamā" which she describedas "heavy", "wet" and "something you soak in". She explained further:One does look behind every feather of their cloak and one does get to the nitty-gritty of what may have driven them And that's what I've done. Now I nolonger wear that cloak. I have a different cloak on today, it's a cloak of mana.[69] The Tribunal held, however, that in tikanga terms Ms Reid's "journey ofredemption is, at best, in early stages and currently falls far short of what tikangawould require".59 In regard to those wronged by Ms Reid, the Tribunal referred to thetikanga concept of muru, which encapsulates acts of redress and restorative justicegenerally. It considered that muru had neither been understood nor undertaken byMs Reid.60 It is clear that in this conclusion, the Tribunal was greatly assisted by theexchanges which occurred between Member Matthews and Ms Reid.[70] So, despite the reference to "process", it is clear that the Tribunal did in factengage with tikanga concepts in its substantive assessment of character. I note thatMs Reid did not call expert evidence in relation to tikanga, although Mr Tamihere didsay any approach to those wronged would, by reference to tikanga, need to be handledcarefully to ensure that wounds healed by the effluxion of time were not reopened.[71] I can identify no error in the Tribunal's assessment of these issues. The factthat Ms Reid says she bore "the cloak of whakamā" for an extended period cannot ofitself be decisive in any assessment of current good character. It is what has beenlearned in the process and it is in that respect that her minimisation of the offending58 At [61].59 At [61].60 At [61].and of the implications for those falsely accused was a relevant consideration. I findno error in the Tribunal's conclusion that in tikanga terms her road to redemption is,"in early stages".[72] This leads to a related point — Mr Bioletti's submission that in terms of thete Tiriti o Waitangi, the Tribunal should have placed greater emphasis on the necessityof diversity in the legal profession and, in particular, the representation of wahineMāori in its ranks. That importance cannot be overstated but neither can it substitutefor proper application of the fit and proper test. Indeed, admission of wahine Māoriwho do not satisfy that test would ultimately be counterproductive in terms of theirstatus within, and contribution to, the profession.[73] I do accept Mr Bioletti's further point that Ms Reid demonstrated goodcharacter in identifying, subsequent to release of the Tribunal's decision, the fact thatshe was not legally aided, thereby exposing herself to a potential award of costs. Iaccept this is an encouraging development, albeit that it must be balanced againstMs Reid's non-disclosure of her offending to Australian employers which, like theTribunal, I consider inconsistent with the character required of an admittee. Viewedin this way, the acknowledgement of her legally aided status simply represents a stepon the road towards the redemption of her character which has, hitherto, been a journeyof some fits and starts. The question I must ask is whether the Tribunal was wrong insaying that she is yet to arrive at the ultimate destination. For the reasons identified, Iam unpersuaded that this is the case.[74] I wish Ms Reid well in terms of any future application, noting that she hasobvious abilities which could be of significant benefit to her employers, Māori and theprofession generally. When, by reference to the issues addressed by the Tribunal andsummarised in para [68] of its decision,61 she is capable of discharging the onus ofshowing that her past wrongdoing no longer remains relevant, she can, in my view,legitimately look forward to re-enrolment.61 Reproduced in this judgment, above, at [20].Result[75] I dismiss the appeal.Costs and disbursements[76] These follow the event and are awarded in favour of the respondent on a2B basis. If there is any issue in respect of quantification, memoranda may be filed.If, subsequent to the Tribunal hearing, Ms Reid has obtained an award of legal aid(which is not my current understanding), then I reserve leave to apply for recission ofmy costs order._________________________Muir J