STANLEY v THE NEW ZEALAND LAW SOCIETY [2019] NZCA 119

STANLEY v THE NEW ZEALAND LAW SOCIETY [2019] NZCA 119 [17 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA338/2018[2019] NZCA 119BETWEEN JOHN LLEWELLYN STANLEYAppellantAND THE NEW ZEALAND LAW SOCIETYRespondentHearing: 26 February 2019Court: French, Dobson and Brewer JJCounsel: J C Gwilliam for AppellantP N Collins for RespondentJudgment: 17 April 2019 at 9.30 amJUDGMENT OF THE COURTThe appeal is allowed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Stanley wants to be admitted as a barrister and solicitor of the High Courtof New Zealand. He is a mature man, 65 years of age, and he has the necessaryacademic and professional qualifications. However, the New Zealand Law Society(NZLS) refused to give him a certificate of character, without which he could not beadmitted in the usual way.[2] Mr Stanley applied to the High Court for an order for his admission.1Effectively, he had to satisfy a Judge of the High Court that he is a fit and proper personto be admitted.2 Justice Clark was not satisfied and refused his application.3Mr Stanley now appeals that refusal.The appeal[3] Mr Stanley has a criminal record of driving offences:420 March 1978 Driving with excess blood Disqualification fromalcohol level driving; fine31 August 1988 Drove a motor vehicle at a Disqualification fromdangerous speed driving; fine19 November 1991 Operated a vehicle carelessly Fine23 January 2002 Drove with excess blood Finealcohol content12 September 2007 Drove with excess breath Special circumstancesalcohol – 3rd or subsequent found – nodisqualification; fine6 December 2013 Failed to stop when followed by Finered/blue flashing lights9 May 2014 Drove with excess blood Disqualification fromalcohol – 3rd or subsequent driving; fine[4] Justice Clark's enquiry into whether Mr Stanley is a fit and proper person to beadmitted had to take his criminal record into account. The Lawyers and ConveyancersAct 2006 (the Act) gives guidance on what a Judge might consider in addressingthe significance of criminal convictions:5(i) the nature of the offence; and(ii) the time that has elapsed since the offence was committed; and(iii) the person's age when the offence was committed:1 Lawyers and Conveyancers Act 2006, s 52.2 Section 49(2)(b).3 Stanley v New Zealand Law Society [2018] NZHC 1154.4 At [5].5 Lawyers and Conveyancers Act, s 55(1)(c).[5] The Act also guided Clark J into considering separately whether Mr Stanley isof good character.6 Of course, his convictions, particularly the convictions for drinkdriving, are relevant to the assessment of good character.[6] Mr Stanley gave evidence before Clark J and was cross-examined. The Judge,in a detailed way, analysed the evidence of the course of Mr Stanley's application tothe NZLS for a certificate of good character in the light of the rest of the evidence putbefore her. The Judge recognised that Mr Stanley's application to the High Court wasnot an appeal against the decision of the NZLS and that the assessment of whetherMr Stanley is a fit and proper person to be admitted was an assessment for her to makeon all the evidence.7[7] Our summary of Clark J's reasoning is:(a) Mr Stanley's lengthy history of convictions does not give confidencehe is reformed:8I cannot view Mr Stanley's serious lapses in judgement so asto lead him over a period of 40 years to drink and drive asentirely historical or that he would not endanger what he hasachieved by a return to that conduct.(b) Mr Stanley's attitude to his convictions means there is an unacceptablerisk he will reoffend and bring the profession into disrepute. He doesnot, accordingly, have the good character required for admission:9Mr Stanley has not established he is a reformed person.I have found his assertions of reform to be unpersuasive.Mr Stanley resists any suggestion he may have an alcoholproblem yet points to his self-imposed abstinence asbeing the substantial step which demonstrates there willbe no further offending. Mr Stanley proposes to rely onlyon willpower and self-discipline when, manifestly, this hasconsistently failed him over a period of decades includinginto mature adulthood. I accept Mr Collins' submissionthat the peril for the legal profession is that Mr Stanley willreoffend and bring the profession into disrepute. Further,I hold the view that the public generally, and members of6 Section 55(1)(a).7 Stanley v New Zealand Law Society, above n 3, at [40].8 At [51].9 At [65].the profession, would not regard Mr Stanley as a person ofsuch integrity, probity and trustworthiness as to be asuitable candidate for admission.Mr Stanley's submissions on appeal[8] Mr Gwilliam, for Mr Stanley, submits the Judge was wrong to concludethe evidence did not support a finding Mr Stanley was reformed:(a) His first conviction for drink driving was almost 41 years ago. It isirrelevant to the issue of whether he is now a fit and proper person foradmission.(b) The 2002 and 2007 convictions are not as serious as their existenceimplies. In both cases there were special circumstances found bythe sentencing Judges such that Mr Stanley was not even disqualifiedfrom driving. He was merely fined.(c) The only relevant conviction is the one entered in 2014. However, thatwas nearly five years ago. There has been no relapse. Further, duringthose five years Mr Stanley has done considerable unpaid work inthe community. He has shown insight into his offending and expressedhis remorse. He has "set a policy of zero tolerance" for drinking anddriving.[9] Mr Gwilliam submits also that Clark J erred in viewing Mr Stanley's 40 yearsrecord as not being historical.10 The Judge's conclusion, he submits, was based onan assessment that Mr Stanley has an unacknowledged alcohol problem. He submitsthere is no evidence of that and the Judge's criticism of Mr Stanley continuing to drinkoccasionally resulted from a misunderstanding of his evidence:The High Court specifically noted that Mr Stanley's evidence was that he has"zero tolerance for alcohol and that he has not had a drink in four years". It isclear from the evidence given by Mr Stanley that the zero tolerance policy hehas is with respect to drinking while driving. He refers to "the limit" whichclearly refers to the limit of breath alcohol. The zero tolerance policymentioned by Mr Stanley did not relate to him completely abstaining from10 At [51], quoted above at [7](a) of this judgment.alcohol. Mr Stanley did not say that he has not had a drink in four years asnoted by the High Court and any negative inference that was drawn in light ofhis evidence that he had had a drink during May 2017 at his son's wedding isunsupported.(footnotes omitted)[10] It was emphasised by Mr Gwilliam that the Judge did not take into account thatthe special circumstances found to exist in relation to the 2002 and 2007 convictions,which meant the Court permitted Mr Stanley to continue to drive, do not point to analcohol problem.[11] Mr Gwilliam also criticises the Judge's findings that Mr Stanley's expressedattitude to his offending shows lack of insight into its seriousness and a qualifiedremorse. He points to Mr Stanley's evidence in which he put his statements intothe context that he regards the 2002 and 2007 convictions as having been incurred inspecial circumstances. Mr Stanley also said he feels disgraced and disappointed inhimself.[12] Finally, Mr Gwilliam submits Clark J did not take into account the positivefactors going to Mr Stanley's good character. The Judge's attention was fixed onthe convictions and her perception of Mr Stanley's attitude towards them. This, it issubmitted, was an error of law.Submissions on behalf of the NZLS[13] Mr Collins, for the NZLS, supports Clark J's decision and the findings onwhich it is based. He submits:(a) The Judge was right to put emphasis on:the appellant's evident lack of insight including excuse-making and self-justification. It is compelling that the fit andproper person standard, assessed in a person aspiring tobecome an officer of the court, incudes respect for the law andfor the institutions of the law, which the appellant evidentlylacked.(b) Mr Stanley's repeat offending over such a lengthy period puts him ina category different to that of an applicant with earlier youthfulindiscretions who can point to a responsible lifestyle in matureadulthood.(c) Mr Stanley's history of offending is sufficient to establish he hasan alcohol problem for which he has sought no help and still wishes torely on a willpower which has failed him repeatedly in the past.(d) The central question for Clark J to determine was whether the frailty ordefect of character, indicated by Mr Stanley's offending, could nowsafely be regarded as entirely spent. The Judge was entitled to answerthis question against Mr Stanley.Nature of appeal[14] We address first the nature of the appeal. Mr Collins submitted Clark J, inrefusing Mr Stanley's application to be admitted, exercised a judicial discretion:An appeal against a High Court judgment refusing admission involves anappeal against the exercise of a judicial discretion. The focus of the HighCourt in this context is that it must be satisfied that the applicant is a fit andproper person. In order to be "satisfied" the Court is entitled to take intoaccount observations of the applicant in the witness box relevant to thequestion whether any past moral frailty can safely be regarded as spent. It isin that sense that a judgment of the High Court admitting or refusing to admita candidate involves the exercise of a judicial discretion.[15] If the NZLS is correct, then the role of this Court on appeal is limited todeciding whether Mr Stanley has shown Clark J materially made an error of law orprinciple, took into account irrelevant considerations, failed to take into accountrelevant considerations, or reached a decision that is plainly wrong.[16] In our view, Clark J was not exercising a judicial discretion but instead madea judicial assessment requiring an evaluative and objective decision on whether, asa matter of law, Mr Stanley is a fit and proper person.[17] Part 3 of the Act provides for the admission and enrolment of barristers andsolicitors. A person is qualified for admission if he or she is in at least one of threedescribed categories, the first of which is:11The first category is persons who—(a) have all the qualifications for admission prescribed or required bythe New Zealand Council of Legal Education; and(b) are fit and proper persons to be admitted as barristers and solicitors ofthe High Court; and(c) meet the criteria prescribed by rules made under section 54.[18] A certificate on behalf of the NZLS certifying that a candidate is both a fit andproper person to be admitted and "meets the criteria prescribed by rules made undersection 54 is, in the absence of proof to the contrary, sufficient evidence of thosefacts".12[19] The Act directs the High Court to admit a candidate as a barrister and solicitorof the High Court if (in this case) the High Court is satisfied the candidate is qualifiedfor admission under s 49(2) and has taken the prescribed oath.13 In other words, oncethe prerequisites are satisfied an order for admission is mandatory. The High Courthas no discretion to refuse admission to a candidate who satisfies the prerequisites.[20] Whether a candidate for admission is a fit and proper person is forthe High Court to decide.14 All the Act does is list matters which the High Court maytake into account.15 These include, as we have said, good character and criminalconvictions.[21] This Court in Taipeti v R discussed the determination of the two types ofdecision, ordinary and discretionary.16 Having reviewed the case law the Court said:1711 Lawyers and Conveyancers Act, s 49(2).12 Section 51.13 Section 52(2).14 Section 54 of the Act empowers the making of Rules which could prescribe criteria precludingadmission such as convictions for specified kinds or classes of offending. The Lawyers andConveyancers Act (Lawyers: Admission) Rules 2008 does not prescribe such criteria.15 Lawyers and Conveyancers Act, s 55.16 Taipeti v R [2018] NZCA 56, [2018] 3 NZLR 308.17 At [49].These decisions show that the classes of case which appeal courts classify asan exercise of a discretion are dwindling. Three possible indicia of thepresence of discretion emerge. First, the extent to which the decision-makercan apply his or her own "personal appreciation" has been identified as a "keyindication". Clearly, the greater the level of prescription in terms of what isrequired of the decision-making process the more likely the decision is anevaluative process, rather than the exercise of a discretion.Second, procedural decisions are more likely to be an exercise of discretionthan wider issues of principle involving the application of law to the facts.Third, if only one view is legally possible, that points away from a discretion.In other words, where there is scope for choice between multiple legally"right" outcomes, that points towards a discretion.(Footnotes omitted.)[22] In our view, the Act makes it clear that the assessment of whether a candidatefor admission is a fit and proper person is an objective one. There is no room for"personal appreciation". As a Full Bench of the High Court said in Re M:18Reflection upon [an Australian case], and like opinions in other cases, exposesthe necessity to recognise that the test of suitability is necessarily an objectiveone, where sympathy for the person which a subjective approach mightengender, has no place.[23] The High Court must evaluate the candidate's relevant characteristics.Section 55 gives a non-exhaustive list of matters which "may" be considered indetermining whether a person is fit and proper for admission. However, the use ofthe ostensibly permissive "may" does not afford an option to disregard any ofthe matters listed, where a matter in the list in s 55(1) assumes any relevance to theassessment of a particular candidate. For example, if a candidate has a criminalhistory, then it must be taken into account to avoid a criticism of the decision beingmade without regard to a relevant consideration.[24] The decision to admit a candidate is a substantive decision, not a proceduralone, and the assessment of "fit and proper" is integral to that.[25] It follows that Mr Stanley's appeal to this Court is a general appeal. We havethe responsibility of making our own assessment of the merits of his case.1918 Re M [2005] 2 NZLR 544 at [18].19 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].What is a fit and proper person?[26] The requirement that a candidate for admission be a fit and proper person is inthe context of the practice of the profession of law. The Act sets out the fundamentalobligations of lawyers:4 Fundamental obligations of lawyersEvery lawyer who provides regulated services must, in the course ofhis or her practice, comply with the following fundamentalobligations:(a) the obligation to uphold the rule of law and to facilitate theadministration of justice in New Zealand:(b) the obligation to be independent in providing regulatedservices to his or her clients:(c) the obligation to act in accordance with all fiduciary dutiesand duties of care owed by lawyers to their clients:(d) the obligation to protect, subject to his or her overriding dutiesas an officer of the High Court and to his or her duties underany enactment, the interests of his or her clients.[27] Self-evidently, if a candidate for admission cannot satisfy the High Court thatthey will comply with these fundamental obligations then they will not have satisfiedthe High Court they are a fit and proper person to be admitted.[28] Previous cases are illustrative, whether determined in relation to the Act or topredecessor legislation.[29] The oldest authority to which we will refer is Re Lundon, a 1926 decision ofthis Court.20 It establishes the principle that a candidate for admission is not to bepunished for past wrongs. Instead, they must be assessed as they are now forthe "integrity and moral rectitude of character that [they] may be safely accredited bythe Court to the public to be entrusted with their business and private affairs".21[30] In Re M, a Full Bench of the High Court considered an application by a personwho had criminal convictions (not specified in the Judgment) incurred when she was20 Re Lundon [1926] NZLR 656 (CA).21 At 658."a teenager, or an immature young woman, and before she had attained her universityqualification".22 In those circumstances, the Court found the central issue to bewhether Ms M had demonstrated a change of character or reformation so that, lookingforward, she can be said to be a fit and proper person to be admitted to practice law.[31] The Court also held, and we agree, that it is important to look at the facts of anapplication for admission in the round, and not focus solely on the previous convictionor convictions. The Court quoted Kitto J:23 A conviction may of its own force carry such a stigma that judges andmembers of the profession may be expected to find it too much for theirself-respect to share with the person convicted the kind and degree ofassociation which membership of the Bar entails. But it will be generallyagreed that there are many kinds of conduct deserving of disapproval, andmany kinds of convictions of breaches of the law, which do not spell unfitnessfor the Bar, and to draw the dividing line is by no means always an easy task.[32] In Re Owen,24 a Full Bench of the High Court considered an application foradmission by Mr Owen, who was then 38 years old and working as an employmentadvocate having obtained a law degree some seven years previously. The Court setout his history:[17] This life is in marked contrast to his life as a teenager and in histwenties. He grew up in Oamaru. He was a rebellious teenager. He was sentby his parents, who had adopted him, to a boys' home because they could notcontrol him. He was expelled from Waitaki Boys' High School at the age of14 years. By 15 years he was coming to the attention of the police. He wasarrested weekly. He was abusing both alcohol and drugs. He got into fights.The drugs he took were cannabis and benzhexol and amphetamine derivatives.He has a long list of petty convictions.[18] He was examined on some of the more serious convictions before usby counsel for the law society. Putting aside what appeared to be minorcharges including obscene language, wilful damage, theft and unlawfulinterference with a motor vehicle, Mr Till concentrated upon two sets ofburglary convictions, one in 1986 when he was 25 years of age and the secondin 1989. The first was a break-in to a confectionery factory in Oamaru causingsome damage and involving the stealing of some confectionery. The secondwas a break-in through a window into a service station where cigarettes andsome tyres were stolen. He was then aged 27.22 Re M, above n 18, at [15].23 At [23], quoting Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR279 at 298.24 Re Owen [2005] 2 NZLR 536.[19] We understand Mr Till to have focused on these because theseoffences were at an age when Mr Owen could no longer be described as ayouth and when he should have turned the corner of a rebellious youth andshown more maturity.[20] On 2 May 1990 he was convicted of wilfully setting fire to property.The events took place after a cricket match at which he had suffered a blow tothe head and then later got drunk. Somehow he got himself into a church andset fire to some paper and then, it would appear, put the fire out, but not beforeit burned some carpet.[22] As we have noted, he did use cannabis in his youth and was still usingit in 1990. At the age of 29 he was convicted for possessing cannabis plantand cultivating cannabis and sentenced for six months' periodic detention.[23] In the mid-1990s (1994, 1995 and 1996), he was convicted of fourdriving offences, including driving while disqualified. The driving whiledisqualified offence followed an earlier conviction of that year of driving in adangerous manner in which he was disqualified from driving for six months.He drove his car, hitherto being driven by his partner, during a snow storm,when his partner lost confidence. He was fined $300 for that offence.[33] The Court considered Mr Owen's life since those events and was left in nodoubt that he had turned his life around from about when he started university in 1991(some 13 years previously).25 However, that finding did not determine the centralissue:[30] To our mind the central issue before us is whether admitting Mr Owento the status of barrister and solicitor of the High Court would undermine thecollective reputation of the legal profession and the necessary publicconfidence in it, that the Courts must strive to maintain.[34] Of real significance to this issue was that Mr Owen had been sentenced to oneyear's imprisonment on one of his burglary convictions and 10 months' imprisonmenton the other.26[35] The burglary convictions were convictions for criminal dishonesty.Dishonesty leading to imprisonment will generally be viewed as disqualifying aperson from admission, particularly if the applicant was an adult at the time of the25 Re Owen, above n 24, at [25].26 At [32].offending. The Court recognised this and therefore required Mr Owen to satisfy itthat: 27the frailty or defect of character indicated by the 1986 and 1989 convictionscan now be regarded as entirely spent. Put another way, has Mr Owenachieved such a complete turnaround, or reformation, that the convictionsentered during his early adulthood can be safely ignored?[36] The Court found Mr Owen to be a fit and proper person for admission.28 Itwas satisfied that the public and responsible members of the profession would,knowing of Mr Owen's reformation, agree.29[37] Re Burgess involved an application for admission from a person who, while hewas studying for his law degree, was convicted of six charges of benefit fraud.30Mr Burgess's application for admission was successful.[38] Mr Burgess completed his LLB in 2006 and obtained a Master of Laws Degreein 2008.31 His application for admission was heard by Andrews J in 2011.[39] The Judge described Mr Burgess's criminal history:[4] Mr Burgess provided copies of a Summary of Facts and Order forcommunity work. These show that Mr Burgess was convicted on14 November 2005 on six charges: two under s 127 of the Social Security Act1964, two under s 307(AA)(1)(a) of the Education Act 1989, and two unders 307(AA)(2)(a) of the Education Act 1989. It appears from the Summary ofFacts that Mr Burgess claimed, and received:(a) an Unemployment Benefit Student Hardship Benefit between26 November 2001 and 3 March 2002;(b) a Student Allowance from 4 March 2002 to 17 November 2002;(c) an Unemployment Benefit Student Hardship Benefit between25 November 2002 and 2 February 2003; and(d) a Student Allowance from 1 March 2004 to 14 March 2004;while he was employed and receiving an income.27 Re Owen, above n 24, At [35].28 At [39].29 At [38].30 Re Burgess [2011] NZAR 453.31 At [2].[5] It is a condition of receiving both a Student Allowance and aStudent Hardship Benefit that the recipient immediately advise of any changeof circumstances, including working or receiving an income. Mr Burgess hadnot done so. Further, Mr Burgess stated in Student Allowance applications,lodged on 2 November 2001 and 16 February 2004, that he was not receivingany income.[6] It is also apparent from the Summary of Facts that Mr Burgess hadreceived a total of $14,048.47 that he was not entitled to. At the time ofhis application for a certificate of character he was repaying the debt byway of weekly direct credits of $25.00.[40] Mr Burgess provided Andrews J with evidence of his work and personal lifesince his offending in affidavit form, and he gave evidence in person. He satisfiedthe Judge that he had reformed (his "frailty or defect is now spent").32 He was entitledto be admitted.[41] Cases where admission has been refused focus on the nature of the conductgoing to character and whether the Court can be confident the applicant has reformed:(a) Ali v New Zealand Law Society:33Mr Ali had been subject to student discipline for five incidents ofmisconduct by plagiarism both during his undergraduate studies and atthe Professional Legal Studies Course. The misconduct occurred from2008 to 2012. Justice Faire was not satisfied that Mr Ali would not bedishonest in the future.(b) Brown v New Zealand Law Society:34Mr Brown was 27 years old when he applied for admission. Prior tostudying law Mr Brown was a probationary police constable.He resigned following numerous allegations of sexual misconductincluding engaging in sexually explicit text message exchanges witha 13-year-old girl. A key issue was Mr Brown's lack of candour withthe NZLS about his employment history when he applied for acertificate of character. Justice Wylie decided that Mr Brown's lack of32 Re Burgess, above n 30, at [41].33 Ali v New Zealand Law Society [2014] NZHC 1111.34 Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192.candour, and associated lack of insight, precluded a finding that he wasfully reformed and his "earlier frailties in his dealings with youngwomen" were spent.35Analysis[42] We agree with Clark J that the drink driving convictions in 2002, 2007 and2014 are sufficiently recent and numerous as to raise a prima facie doubt as to whetherMr Stanley is reformed. The doubt is deepened by Mr Stanley's age. He is a matureman. These are not the indiscretions of feckless youth.[43] The onus is on Mr Stanley to dispel that doubt. We agree with Clark J that hehas not done so. His evidence is that he has changed his behaviour. He has madea decision never to drive after consuming any alcohol no matter how small thequantity. Unfortunately, Mr Stanley's resolution is undermined both by his history ofdrink driving and his attitude towards it which we will not repeat as it is set out inClark J's decision. We agree with the Judge that Mr Stanley showed a lack of insightand minimised his offending, and his expressions of remorse are qualified by thosefactors. Having said that, Mr Stanley in his evidence before Clark J spoke ofhis commitment to never again offend. The Judge accepted that Mr Stanley was beinggenuine.[44] In our view, given the doubt that properly exists as to Mr Stanley never againdriving unlawfully having consumed alcohol, the major issue in this appeal is whetherthat means he is not a fit and proper person to be admitted.[45] First, Mr Stanley's offending is not the sort which goes directly to fitness topractice as a lawyer. He is not in the position of Mr Owen and Mr Burgess who hadrelatively recent convictions for dishonesty. Nor does he have the defects in characterpossessed by Mr Ali and Mr Brown.[46] At the hearing before us, Mr Collins for the NZLS was asked by the Courtabout the effect of drink driving convictions on the ability of practitioners to retain35 Brown v New Zealand Law Society, above n 34, at [66].their practising certificates. Mr Collins, who has considerable experience in this area,could think of only one case where a practitioner's ability to practise was affected bymultiple drink driving convictions. In that case, the most recent drink drivingconviction was accompanied by convictions for resisting arrest and disorderlybehaviour. The practitioner was not struck off but suspended from practice fora period.[47] Mr Stanley is a man of good character. He has lived a productive life andpursued a career as an insurance broker. He continues to contribute to the community.He is a committed Christian with a Certificate in Christian Ministry and he isa marriage celebrant. One of his referees, the Deputy Mayor of Hutt City and a Justiceof the Peace, said this of Mr Stanley:The candidate is an upstanding member of the community who has givenmany years' service to others, mainly through the church. He has a strongcommitment to fairness and justice and helping others.[48] We do not consider the risk that Mr Stanley might again drink and drive asmeaning he cannot be trusted to comply with the fundamental obligations of lawyersset out in s 4 of the Act.36 Mr Collins submitted the risk goes to the obligation touphold the rule of law. In an indirect sense a failure to comply with the criminal lawcan be seen as a failure to uphold the rule of law. But Mr Stanley did not driveknowing he was over the legal limit for breath/blood alcohol. His offending was notat the serious end of the range of drink driving. He was not disqualified from drivingfor the 2002 and 2007 offending and he was not imprisoned for the 2014 offending.We do not accept Mr Collins's submission.[49] Justice Clark accepted without analysis Mr Collins's submission "that the perilfor the legal profession is that Mr Stanley will reoffend and bring the professioninto disrepute".37 Certainly, a purpose of the Act is to maintain public confidencein the provision of legal services.38 However, as discussed, the NZLS does notcommonly remove practising certificates from lawyers who incur drink driving36 See above at [26].37 See above at [7](b).38 Lawyers and Conveyancers Act, s 3(1)(a).convictions. As a candidate for admission Mr Stanley is entitled to be treated moreliberally than a practitioner.[50] We find Mr Stanley's position to be within that described by Kitto J, as alreadyquoted:39But it will be generally agreed that there are many kinds of conduct deservingof disapproval, and many kinds of convictions of breaches of the law, whichdo not spell unfitness for the Bar ...[51] We do not consider the risk of Mr Stanley reoffending is high given his genuinecommitment to not doing so. However, if he were to reoffend that would not, in ourview, create an unmanageable risk of his bringing the profession into disrepute.The NZLS's disciplinary procedures exist in large part, for example, to maintainpublic confidence in the profession.[52] We agree with Mr Gwilliam that Clark J placed undue emphasis on the risk ofMr Stanley reoffending and did not consider his position in the round. In particular,the Judge accepted without analysis that reoffending would bring the profession intodisrepute. The Judge did not consider the nature of the offending, which is not ofthe prima facie disqualifying type present in Owen and Burgess.[53] In the round, Mr Stanley is a 65-year-old who has acquired four convictionsfor drink driving in the period 1978 to 2014. He is of good character and he continuesto contribute to society, particularly through his church. He has, as more than one ofhis referees attests, a commitment to fairness and justice. His attitude to his offendingdoes not show the wholesale reform which led the Courts in Owen and Burgess, incircumstances where the offending in question was prima facie disqualifying, to grantadmission. However, he does have a genuine commitment not to reoffend and werehe to reoffend similarly that would not create a meaningful risk of his bringingthe profession into disrepute. There is no reason to suspect that, if admitted,Mr Stanley would not comply with the fundamental obligations of a lawyer.39 See above at [31].[54] We find Mr Stanley to be a fit and proper person to be admitted as a barristerand solicitor of the High Court. As the Full Bench of the High Court said in relationto Mr Owen, we are satisfied that the public and responsible members of the professionwould, knowing the facts of Mr Stanley's case, agree.Result[55] The appeal is allowed. Justice Clark's refusal of Mr Stanley's application tobe admitted is quashed. The application is granted. Subject to Mr Stanley takingthe oath prescribed by s 52(2)(b) of the Act, he is entitled to an order admitting him asa barrister and solicitor of the High Court.[56] As regards costs, our provisional view is that costs should follow the event andthe respondent pay the appellant costs for a standard appeal on a band A basis withusual disbursements. However, costs were not canvassed at the hearing and if eitherparty wishes to make submissions, then these should be filed within five working days.Submissions not to exceed two pages in length.Solicitors:Main Street Legal Ltd, Upper Hutt for AppellantNew Zealand Law Society, Wellington for Respondent