LINCOLN v NEW ZEALAND LAW SOCIETY [2018] NZHC 3050

LINCOLN v NEW ZEALAND LAW SOCIETY [2018] NZHC 3050 [23 November 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-000462[2018] NZHC 3050BETWEEN RICHARD LINCOLNApplicantAND NEW ZEALAND LAW SOCIETYRespondentHearing: 7 November 2018Appearances: N Wham for ApplicantApplicant in person (submissions only)P Collins for RespondentJudgment: 23 November 2018JUDGMENT OF DUNNINGHAM JIntroduction[1] The applicant, Richard Lincoln, seeks to be admitted as a barrister and solicitorof the High Court of New Zealand. The New Zealand Law Society (the Law Society)opposes the application. It says Mr Lincoln cannot satisfy the Court that he is of goodcharacter and a fit and proper person.1[2] In April this year Mr Lincoln applied to the Canterbury-Westland branch of theLaw Society for a certificate of character.2 As a consequence of advertising theapplication to the profession through the Law Society's website, a letter was receivedfrom a barrister identifying concerns about Mr Lincoln's fitness to practice. TheLaw Society then made further enquiries, including interviewing Mr Lincoln.1 As required by s 55 Lawyers and Conveyancers Act 2006.2 Under r 5(1)(b) Lawyers and Conveyancers Act (Lawyers: Admission) Rules 2008.Although those enquiries had not reached the point where the Law Society had madea decision to refuse a certificate of character, Mr Lincoln chose to file his originatingapplication for admission in the High Court without one. That triggered therequirement for the Law Society to oppose the application, which the Law Society hasduly done.3[3] There is no dispute that Mr Lincoln has the qualifications for admissionprescribed by the New Zealand Council of Legal Education and otherwise meets thestatutory requirements of the Lawyers and Conveyancers Act 2006 (the Act). What isat issue is whether he is a fit and proper person to be admitted as a barrister andsolicitor of the High Court as required by s 49(2)(b) of the Act.Factual background[4] Mr Lincoln is now 56 years of age. He has worked in a variety of occupationsover his life, including in the automotive and hospitality industries. He also owned aninformation technology business in Palmerston North from 2001 to 2010. However,at a mature age, he embarked on a law degree, completing that over seven years, thencompleting his professional legal studies with the College of Law in early 2018.During his studies he has also worked as a process server and undertaken legalresearch work for barristers.[5] Alongside Mr Lincoln's passion for the law, he also has an interest in firearms.He has combined these interests by advocating on firearms policy and legislation, bothin public forums and in the courts.[6] One manifestation of his advocacy work is his role in establishing theNational Shooters Association (NSA) in around 2009, which he explains waspurposely set up to be "militant, acerbic and outspoken but always operating withinthe law". He says the NSA was modelled on the approach taken by the National RifleAssociation in the United States because it had achieved greater success than themoderate approaches by other gun lobby groups in jurisdictions such as the UK and3 Rule 6(4) Lawyers and Conveyancers Act (Lawyers: Admission) Rules.Australia. The NSA has a Facebook page to which Mr Lincoln and others arecontributors.[7] Another example of Mr Lincoln's advocacy for firearms owners includestaking two cases to the High Court with the purpose of clarifying how the New Zealandfirearms legislation should be applied.[8] In Lincoln v Police, Mallon J made declarations which upheld Mr Lincoln'ssubmission that the police were erroneously categorising some firearms as having a"military pattern free-standing pistol grip" when they did not.4 In Lincoln vCommissioner of Police, Mr Lincoln sought a wide range of declarations on issuesconcerning procuring, importing, possessing and using military-style semi-automaticweapons under the Arms Act 1983.5 Panckhurst J declined to make some of thedeclarations sought for various reasons, including where the Judge considered theissue was better determined in the context of an actual, rather than hypothetical, factscenario. However, the Court did make a declaration in Mr Lincoln's favour statingthat a permit to procure under s 35 of the Arms Act was not required where a personmodifies an existing semi-automatic firearm to create a military semi-automaticfirearm.[9] Through his role with the NSA, and through the success he has had in obtainingdeclaratory judgments in the High Court over issues relating to the administration ofthe Arms Act, Mr Lincoln has developed a profile in the field of firearms advocacy.He is hoping to practice in this area if he is admitted as a barrister and solicitor.[10] However, primarily as a result of events that have followed an incident whichoccurred in 2015, an objection was raised to Mr Lincoln's application for admission.It is necessary to provide some detail about those events to give context to it as it formsthe basis for the Law Society's opposition.4 Lincoln v Police HC Palmerston North CIV-2009-454-473, 1 March 2010.5 Lincoln v Commissioner of Police [2013] NZHC 1813.The events of September 2015 and the aftermath[11] Mr Lincoln holds a firearms licence with an E endorsement.6 InSeptember 2015, he had arranged to deliver a Heckler & Koch SL8 firearm (the SL8)to a gunsmith in Christchurch to be worked on. While taking the SL8 to Christchurchfrom Timaru on 17 September 2015 he made two stops, one to purchase petrol and,later, to use a public toilet. Rather than leave the SL8 unattended in the locked car, hecarried it with him on both occasions. Two witnesses were sufficiently alarmed bythis that they contacted the police and provided Mr Lincoln's car description andregistration number.[12] As Judge Maze noted in a subsequent judgment,7 once they received thesereports, the police would inevitably have wanted to make enquiries to satisfythemselves that all was in accordance with the law and the interests of public safety,particularly given the recency with which an armed man had gone to the Ashburtonoffices of WINZ, where he shot three staff members, killing two of them.[13] What happened next was described in the judgment of Judge Maze as follows:[5] Senior Constable Manning aided by two other officers performed an"armed stop" of Mr Lincoln's car just north of Dunsandel. Mr Lincoln ischarged with obstruction of that officer. While this was happening, SergeantSutherland entered Mr Lincoln's home in Timaru (the first search). Mr Lincolnwas arrested at Dunsandel and taken to the Ashburton police station. He wasexamined by a mental health assessor and then interviewed by ConstableO'Reilly. He was admitted to police bail at about 4 pm, with a condition hemust surrender any firearms in his possession to the police. He was drivenback to Dunsandel to collect his car. In the mean time Timaru police wereasked by Ashburton police to again enter, and search, Mr Lincoln's home (thesecond search).[6] Mr Lincoln drove home to [address deleted]., Timaru, arriving about6.30 pm. He met Sergeant Manson on arrival at his home. He informed her hewould not surrender any firearms in his possession. She stated she consideredhe was mentally unfit to have possession of firearms at that time, and shewould search and seize any firearms at the address under the Search andSurveillance Act (the third search). Mr Lincoln then discovered that someonehad been into his home that day unlawfully. He complained he had been thesubject of burglary. When asked to do so, he assisted the police to open thegun safe in the house, stating however his view their actions were unlawful.He started filming the police officers while they moved about his home.6 An E endorsement allows Mr Lincoln to possess military-style semi-automatic weapons undercertain conditions.7 New Zealand Police v Lincoln [2017] NZDC 15411.Sergeant Manson required him both to stop filming them and to remain quietwhile she did certain things. He did as she required. Police seized a Hatsanshotgun (the Hatsan shotgun) and a Panther DPMS rifle (the DPMS rifle) inthat third search.[14] Mr Lincoln was subsequently charged with various offences, includingobstruction of Senior Constable Manning while he was in the execution of his duty,unlawfully possessing and carrying the SL8 and unlawfully possessing military-stylesemi-automatic weapons (the Hatsan shotgun and the DPMS rifle).[15] The charges went to hearing on 19 and 20 June 2017. The charges in relationto the SL8 were dismissed at the outset when the police offered no evidence to supportthem. In her subsequent judgment the Judge found against the police on the balanceof the charges. She held the charge of obstruction was not proven beyond reasonabledoubt and the other charges depended on inadmissible evidence and, in any event, theevidence which was to have been relied on would have been insufficient to prove thecharges. In short, the prosecution was entirely unsuccessful.[16] Furthermore, in her judgment on Mr Lincoln's subsequent application for costsunder the Costs in Criminal Cases Act 1967, the Judge was critical of the police.8 Shesaid:9This prosecution was pursued without proper consideration of all relevantmatters because police had not properly complied with all duties. It is clearthat Mr Lincoln did not bring the prosecution on his own head. He told theofficers at the roadside in Dunsandel the basis for his defence to any charge ofunlawful possession; they refused, from then to trial, to consider it. He plainlyco-operated with the psychiatric assessments; it is just that police elected toignore the outcome.Judge Maze awarded Mr Lincoln costs totalling $11,255.38.[17] That was not the end of the matter however. Mr Lincoln says that, followingthe events of September 2015, he was the subject of ongoing harassment from policein Timaru, saying they were "regularly sitting outside my property, following mearound Timaru".8 Lincoln v New Zealand Police [2017] NZDC 23625.9 At [14].[18] In late 2017, following the dismissal of the charges against him, Mr Lincolnserved proceedings on Senior Constable Manning at his home. Mr Lincoln arrivedwearing what Senior Constable Manning understood was a black stab proof vest,although Mr Lincoln explained it was a vest with a built-in camera. Service of thedocuments was also filmed from a video camera set-up in Mr Lincoln's car.[19] Mr Lincoln says that he then had a further visit from police to the campgroundwhere he lived on the rural outskirts of Christchurch. He says they started "bangingon the side of [my] motorhome" and said that they wanted him to come out and talk.It seemed that they wanted to talk about him "serving papers on Jim Manning". Helocked himself in his vehicle and says they eventually left. It was following thisincident that he placed a post on the NSA Facebook page. The text of the post read asfollows:The criminal offender, JAMES ANDREW MANNING who works for the NZpolice gets a fraction of his comeuppance.Normally these videos remain undisclosed because they are proof of servicerecords only. But in this case the video is made public because James AndrewManning is a violent and dishonest criminal offender who remains at large.Manning's offending includes assault and battery, kidnapping, perjury,attempting to pervert the course of justice and various offences under theCriminal Procedure Act.The public need to be aware that this offender is at large in our communityand in spite of his offending, remains a serving member of police.He lives at [ ] and works at Lincoln police station.This is his Facebook page [ ].and this is his wife's Facebook page:[ ]The public are warned that this offender is dangerous, unpredictable andshould not be approached. If engaging with him, make sure you have a camerarecording.(personal details contained in the original post are omitted)[20] Underneath this commentary, Mr Lincoln provided a link to the video of himeffecting service on Senior Constable Manning which he had uploaded to a publicvideo sharing website. The video was accompanied by a song by Ozzy Osbourneentitled "Dog, The Bounty Hunter".[21] At around the same time, Mr Lincoln also sent a message through the FacebookMessenger service to Senior Constable Manning's wife. It read as follows:When the for sale sign goes up on your house and the receivers come in,remember that your husband is the one to blame. While you're struggling tomake ends meet for your kids, he will probably be serving time in a nice coldprison cell for assault, kidnapping and perjury.How did you ever wind up marrying a lowlife scumbag thug?[22] Mr Lincoln says there was then a further visit to his motorhome from policeduring which they again called out to him saying that they wanted to speak to him and,according to Mr Lincoln, they stuck a screwdriver under the door of his motorhomebreaking the weather seal on it. Mr Lincoln does not know who the police officerswere as he remained inside his motorhome. The following morning he contacted theDistrict Commander about the visits and he accepts that that appeared to be effectivein stopping any further visits.[23] The document served on Senior Constable Manning was an application to joinhim as a defendant to a civil claim Mr Lincoln was bringing against theAttorney-General, in relation to the events of September 2015. While joinder did notproceed, the civil claim that he proposed bringing against Senior Constable Manningwas settled in May 2018 on a confidential basis.[24] In June 2018, Mr Lincoln sent the following apology by email to Mrs Manning,via Mr Manning's lawyer, Mr Tim Mackenzie:With her consent, I want to apologise to Mrs Julie Manning. I usedMrs Manning instrumentally to achieve ends aimed at her husband. It waswrong of me to do so and I apologise. I would be grateful if you wouldcommunicate that.The private prosecution of Senior Constable Manning[25] However, that was not the end of the matter from Mr Lincoln's perspective.Two months after resolving the civil claim, he filed seven charging documents againstSenior Constable Manning in the District Court at Christchurch. Five of the chargesrelated to the events on 17 September 2015, being charges of aggravated assault,assault with a weapon, commission of a crime with a firearm, kidnapping, and wilfullyattempting to obstruct, prevent, pervert, or defeat the course of justice. Thesixth charge of wilfully attempting to obstruct, prevent, pervert, or defeat the courseof justice related to the statement Senior Constable Manning made on21 September 2015 about the 17 September events. The seventh charge, again ofwilfully attempting to obstruct, prevent, pervert, or defeat the course of justice, relatedto the evidence Senior Constable Manning gave in the District Court at Timaru.[26] As required by s 26 Criminal Procedure Act 2011, the District Court had tomake a decision as to whether to accept the charging documents for filing. After anopportunity for both Mr Lincoln and the proposed defendant to file submissions onthis issue, Judge Garland issued a decision directing that the charging documents notbe accepted for filing.10 While the Judge acknowledged that, prima facie, there wassufficient evidence to justify a trial in relation to the charges, he accepted thesubmission of counsel for Senior Constable Manning that the motives of theprosecutor were tainted as Mr Lincoln was bringing the charges in an attempt to"humiliate, embarrass or otherwise extract revenge on Mr Manning". He consideredthat the tenor of the Facebook message sent to Senior Constable Manning's wife madeit clear that Mr Lincoln was not the "disinterested prosecutor" required by the criminaljustice system. Furthermore, the content of the service video, and the decision to shareit online, indicated that Mr Lincoln had a desire to embarrass or humiliateSenior Constable Manning in the eyes of his family and the public. He also consideredthe material Mr Lincoln had posted on Facebook supported his view that Mr Lincolnwas using the criminal justice system to extract revenge on those whom he believeshave wronged him.[27] Judge Garland also held that the charges were "excessive and duplicitous" anddid not reflect the requirement that in the Solicitor-General's prosecution guidelinesthat "the number and seriousness of charges should adequately reflect the criminalityof the defendant's conduct". In his view, the number of charges, three of which all10 Lincoln v Manning [2018] NZDC 20025.related to the same factual occurrence, demonstrated that Mr Lincoln was making "amountain out of a molehill". He concluded that:Mr Lincoln's attempt to use the criminal law to extract revenge for theperceived wrongs he has suffered is misguided. It would tarnish the integrityof the Court to accept these charging documents for filing.The application for admission[28] When Mr Lincoln applied for admission as a barrister and a solicitor, theseissues were brought to the attention of the Law Society by Mr Mackenzie, the solicitoracting for Senior Constable Manning. He identified that in making the disclosure hewas guided by the fact that if Mr Lincoln was a practicing lawyer, he would becompelled to make a misconduct report.[29] In addition, Mr Mackenzie identified that Mr Lincoln may have been using amisleading description of himself, suggesting that he had special expertise in areas oflaw contrary to s 22(2) and (3) of the Act. He referred in particular to an advertisementon the NSA Facebook page where Mr Lincoln's photograph is headed by a quoteattributed to "Abraham Lincoln (Lawyer 1809-1865)" which reads: "I may walkslowly but I never walk backwards" and below it Mr Lincoln offers the followingservices: "Firearms law advocacy, Employment, civil and criminal law". His contactdetails include reference to "Otautahi Chambers", where the barrister he proposes towork for is located.[30] Because of the concerns raised by Mr Mackenzie, Mr Lincoln was interviewedby two senior Christchurch lawyers as part of the Law Society's enquiry into his statusas a fit and proper person to receive a certificate of character. A transcript of thatinterview was provided as part of the evidence before this Court, along with the reportof the interviewers. They reached the following conclusions:In the present case we again acknowledge that this is not a situation where thecandidate has criminal convictions. However the conduct which concerns usis of such recency to his application for admission and, coupled with hisresponses to questions in relation to the Facebook posts, cannot be satisfiedthat the motivation for his conduct is "entirely spent" and might not re-occurif the applicant is tested again.We did not feel able to recommend the issue of a certificate of character at thisstage and recommend to the Council that the application be referred to the[Practice Approval Committee] for consideration.[31] Although Mr Lincoln was given an opportunity to respond to the interviewers'report, he declined that opportunity and, instead, elected to apply to this Court foradmission without a certificate of character, under r 6 of the Lawyers andConveyancers Act (Lawyers Admission) Rules 2008 (the Admission Rules).[32] Mr Lincoln's application was supported by his own affidavit which confirmed:(a) he had all the qualifications for admission prescribed or required by theNew Zealand Council of Legal Education;(b) he was a fit and proper person to be admitted as a barrister and solicitorof the High Court of New Zealand relying on:(i) the absence of a criminal record;(ii) attached references from four people who knew him, includinga practicing barrister, Michael Starling (who proposes toemploy Mr Lincoln), and David Wood, a retired barrister andsolicitor; and(iii) the absence of adverse matters arising in connection with hislegal education.[33] The application was made without the requisite certificate of character,although Mr Lincoln advised the Law Society that should it issue him with a certificateprior to the matter being heard in Court, an amended application, without notice,would be filed. However, the Law Society took the view that once the requirementsunder r 6(4) of the Admission Rules were triggered, the Law Society could notcontinue to process the application internally (where it was required to keep an openmind about it) but had to oppose the application.[34] The affidavit filed by the regulatory solicitor of the Law Society's PracticeApproval Committee noted the following matters as relevant to the Law Society'sopposition to the application for admission:(a) Mr Lincoln's Facebook postings and his dealings with the police officerand his wife which were inappropriate for a person of a mature ageseeking to be admitted to the legal profession;(b) the impression that he did not appreciate that his conduct wasinappropriate, or show any remorse or insight, despite being promptedby the interviewers to do so;(c) his harassment of the police officer's wife which showed a significantlack of judgement, and the impression that his explanations to theinterviewers were unconvincing and implausible;(d) the way in which he had promoted himself as providing legal serviceswere thought to be misleading, suggesting to the public that he was apracticing member of barristers' chambers, possibly breaching s 22 ofthe Act; and(e) his character references were minimal in content and did not outweighthe legitimate concerns about his character, prompted by the materialdisclosed in Mr Mackenzie's letter.The legal framework for admission as a barrister and solicitor[35] Admission as a barrister and solicitor is governed by ss 48 to 55 of the Act,along with the Admission Rules. These provisions must be interpreted and applied inlight of the purposes of the Act set out at s 3 of the Act. Relevantly, these include:(a) to maintain public confidence in the provision of legal services;(b) to protect the consumers of legal services; and(c) to recognise the status of the legal profession.[36] Section 4 sets out the fundamental obligations of lawyers. These are:(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 regulated services to hisor her clients;(c) the obligation to act in accordance with all fiduciary duties and dutiesof care owed by lawyers to their clients; and(d) the obligation to protect, subject to his or her overriding duties as anofficer of the High Court and to his or her duties under any enactment,the interests of his or her clients.[37] Under the normal route to admission, found in s 49(2), a candidate foradmission as a barrister and solicitor must:(a) have all the qualifications for admission prescribed or required by theNew Zealand Council of Legal Education; and(b) be a fit and proper person to be admitted as a barrister and solicitor ofthe High Court.[38] The second requirement is usually satisfied by applying to the Law Society fora certificate of character.11 That certificate is sufficient evidence of the candidate'sstatus as a fit and proper person for admission, in the absence of proof to the contrary.12[39] Section 55 provides statutory guidance for determining whether a person is afit and proper person to be admitted. Relevantly, it includes the following:11 Lawyers and Conveyancers Act (Lawyers: Admission) Rules, r 5(1)(b).12 Lawyers and Conveyancers Act, s 51.(1) For the purpose of determining whether or not a person is a fit andproper person to be admitted as a barrister and solicitor of theHigh Court, the High Court or the New Zealand Law Society may takeinto account any matters it considers relevant and, in particular, maytake into account any of the following matters:(a) whether the person is of good character:(b) whether the person has, at any time, been declared bankruptor been a director of a company that has been put intoreceivership or liquidation:(c) whether the person has been convicted of an offence inNew Zealand or a foreign country; and, if so,—(i) the nature of the offence; and(ii) the time that has elapsed since the offence wascommitted; and(iii) the person's age when the offence was committed:(2) The High Court or the New Zealand Law Society may determine thata person is a fit and proper person to be admitted as a barrister andsolicitor even though the person—(a) is within any of the categories mentioned in any of theparagraphs of subsection (1); or(b) does not satisfy all of the criteria prescribed by rules madeunder section 54.(3) Subsection (1) does not limit—(a) the grounds on which it may be determined that a candidate isnot a fit and proper person for admission as a barrister andsolicitor; or(b) the criteria that may be prescribed by rules made under section54.[40] The onus to establish that he or she is a fit and proper person to be admitted asan officer of this Court falls on the applicant. In deciding whether the applicant is afit and proper person, the various matters set out at s 55(1) are not expressed to bemandatory considerations, nor do they limit the enquiry that I can make.[41] I was referred to a wide range of caselaw which articulated the standards ofconduct expected from a barrister and solicitor and which guide my consideration ofwhat constitutes a fit and proper person to be admitted as one. It is sufficient, in myview, to cite Kitto J in Ziems v Prothonotary of Supreme Court of (NSW), where hesaid:13[T]he Bar is no ordinary profession or occupation. These are not empty words,nor is it their purpose to express or encourage professional pretentions. Theyshould be understood as a reminder that a barrister is more than his client'sconfidant, adviser and advocate, and must therefore possess more thanhonesty, learning and forensic ability. He is, by virtue of a long tradition, in arelationship of intimate collaboration with the judges, as well as with hisfellow-members of the Bar, in the high task of endeavouring to makesuccessful the service of the law to the community. That is a delicaterelationship, and it carries exceptional privileges and exceptional obligations.If a barrister is found to be, for any reason, an unsuitable person to share inthe enjoyment of those privileges and in the effective discharge of thoseresponsibilities, he is not a fit and proper person to remain at the Bar.[42] While that articulation of the standard required arose in the context of whethera lawyer should be disbarred, it is equally applicable to the question of admission.[43] A recent statement of the relevant principles applying to the enquiry into acandidate's fitness for admission can be found in Brown v New Zealand Law Society.14In that case Wylie J summarised them as follows:(a) The Court should not lightly limit the ability of a person to engage inan occupation for which they are qualified.(b) Refusal to admit a candidate has no punitive element. It is whollyprotective. Refusal should be based on the risk of the candidate'sfuture misconduct or likely potential harm to the profession'sreputation.(c) The Court must be satisfied that the candidate is a person of integrityand moral rectitude of character, such that he or she can be safelyaccredited by the Court to the public as being a person who canproperly and responsibly discharge his or her duties.(d) The concept of a fit and proper person incorporates standards ofintegrity.(e) Where a candidate has been involved in some past indiscretion, theCourt must be satisfied that the "frailty or defect of character"indicated by the candidate's earlier behaviour can be regarded as"entirely spent" or "safely ignored".(f) The Court must look at the facts of the case "in the round", and notseek to pay undue regard to the earlier wrongdoing (footnotesexcluded).13 Ziems v Prothonotary of Supreme Court of (NSW) (1957) 97 CLR 279 at 298.14 Brown v New Zealand Law Society [2018] NZHC 1263, [2018] NZAR 1192 at [39].[44] In undertaking the assessment, I also bear in mind that this analysis involves a"forward looking" focus as I am assessing the candidate's "worthiness and reliabilityfor the future".15The Law Society's submissions[45] The Law Society focused on the Facebook post and messaging as being themore serious adverse indicators as to Mr Lincoln's status as a fit and proper person.Mr Collins noted that the description, or mis-description, of Mr Lincoln's vocationalstatus in the advertisement posted on the NSA Facebook page did not, of itself, amountto disentitling behaviour. It simply showed a lack of judgment and a tendency to testthe limits of legitimacy, rather than significant moral frailty.[46] However, Mr Collins submitted that the Facebook post and messaging relatingto the Manning family were inappropriately aggressive and intrusive, and wereimproper by any standard of decency or rectitude, but especially by the standard of aperson wishing to attain the status of an admitted lawyer and officer of the Court. Inparticular, Mr Collins referred to the intemperate references to the police officer as a"violent and dishonest criminal offender who remains at large", the publication of thepolice officer's home address and the links to both his and his wife's Facebook pages,the sensationalist posting of the video recording of the process serving operation, andthe intimidating and distressing Facebook message to the police officer's wife whichended with the comment "how did you ever wind up marrying a lowlife scumbagthug?"[47] While not directly attributed to Mr Lincoln, Mr Collins also pointed out thatother postings on the NSA Facebook page were objectionable and, to the extentMr Lincoln was associated with them, they reflected poorly on him. These includeda photograph of a named police officer depicted in a Nazi uniform with the words "Iam a liar and should not be trusted" and another headshot photograph of a secondpolice officer involved in the events of September 2015, which bore the inscription"bent cop" following the policeman's name.15 Re M [2005] 2 NZLR 544 at [21].[48] Mr Collins also noted that the intemperate and aggressive attitude and languageof these posts was similar to Mr Lincoln's correspondence with the police some24 years earlier. That correspondence was set out in a decision of Judge Pethig in theNelson District Court in August 199416 where the Judge upheld a decision to revokeMr Lincoln's firearms licence. By way of example, in a letter dated 29 July 1993 sentto Commissioner McDonald, concerning the District Commander, Mr Lincoln said:This lunatic is your responsibility and it is in your authority to do somethingabout it.In another letter dated 12 August 1993 to Commissioner McDonald, Mr Lincoln said:Some serious questions must be raised about [the District Commander's]inane ramblings of my former partner having grounds for a non-molestationorder, perhaps I should apply for special leave from the Ministry of Justice toobtain a non-molestation order against [him]?[49] Mr Collins pointed out that the District Court Judge reached the view that theletters showed Mr Lincoln's reaction to ordinary events was "grossly exaggerated".[50] Mr Collins submits that the totality of the evidence shows there is legitimatecause for concern about a frailty in Mr Lincoln's character rendering him unfit foradmission as a barrister and solicitor. In particular, the evidence calls into question:(a) his capacity to deal reasonably and dispassionately with lawenforcement agencies when he is under pressure, whether in relation tohis own interests or, if he was a lawyer, the interests of a client;(b) his capacity to treat others with respect and courtesy when underpressure; and(c) the risk he poses to the public and to the legal profession, in bringingthe profession into disrepute by engaging in threats, intimidation andmenace, inappropriate in a lawyer.16 While a copy of the decision was produced by the Law Society, it did not contain a Court filereference and enquiries of the District Court at Nelson have failed to provide a reference numberfor citation.[51] This is not a case, in the Law Society's submission, where Mr Lincoln canblame youthful or immature impulse for his actions as he was in his mid-fifties at thetime of the Facebook post and message. Furthermore, it could not be said that hisconduct resulted from a "rush of blood to the head" as the Facebook post requireddeliberation and forethought.[52] In summary, the Law Society submits that the Facebook post and messageindicate a serious frailty of character, particularly as they were the product of a maturepersonality and fully formed character who had almost completed his legal training atthe time these events occurred. The frailty of character, involving unconstrainedaggression, insult and threats, echo his dealings with police as long as ago as 1993.That tells against it being a one-off aberration. Furthermore, it illustrates atemperament which is ill-suited to the practice of law.[53] The Law Society submits those concerns are sufficiently serious to justify thedismissal of his application.Mr Lincoln's submissions[54] Mr Lincoln responded in detail to the matters raised in the Law Society'saffidavits. He filed four affidavits in these proceedings responding to the evidenceadduced by the Law Society. I also had the transcript of his interview with thetwo delegates of the Law Society who interviewed him and he was cross-examined byMr Collins at the outset of the hearing.[55] I should say, at the outset, that Mr Lincoln impressed me as an intelligent,logical person. His submissions were thorough and well organised and he was poisedand articulate in the courtroom. However, that simply reflects that he has some of theattributes required of a lawyer, which is undoubted.[56] Mr Lincoln's submissions referred to the affidavit evidence given in support ofhis application, noting that it demonstrates that he meets all of the considerations ins 55(1) including, in his submission, that he is of good character. In particular, hereferred to the affidavit evidence from Mr Woods, a retired lawyer, and Mr Starling, apracticing lawyer, both of whom support his application for admission. He alsoreferred to the evidence of Mr Tippett, a former employer, who described Mr Lincolnas "dependable, supportive, resourceful and hard working".[57] In his interview with two Law Society representatives he denied responsibilityfor posting the advertisement in which he offered services in various fields of law,saying his niece had prepared it and it was "put up prematurely". He said when it wasdrawn to his attention, he had it taken down. In cross-examination he deniedresponsibility for the other NSA Facebook posts which made derogatory commentsabout the police, including the post which described the South Canterbury team as"incompetent" and a specific member of that branch as a "bent cop".[58] Accepting that his Facebook post and message were the primary cause of theSociety's concern, Mr Lincoln acknowledged that they were "inappropriate" anddemonstrated a "lapse of judgment". However, he submitted that such conduct canonly be elevated to evidence of a defect or frailty of character by a repeated pattern ofsimilar behaviour which he says is not present in this case. Furthermore, the eventsoccurred almost a year ago and have not been repeated despite what he described as"virtually identical provocation occurring less than two months after the originalprovocation" (by which he was referring to the second visit from police to hismotorhome).[59] He compared his "infraction" with that in Re Gazley, where Mr Gazley wasfound to have plagiarised in the course of his law studies, and suggested that that casewas "arguably more serious" because it occurred in the context of the candidate's lawstudies.17 He also submitted that his behaviour was less serious than that in a casediscussed in LawTalk, where a practicing lawyer threw a file across a desk and sworeat the prosecutor when the Registrar's Court was in session and then had a furtherconfrontation with Court staff where the lawyer swore at them and threatened to sue.18In that case the lawyer was fined and censured. By comparison he says his behaviouris not sufficient to deny him admission, if comparable behaviour would not warrantstriking off.17 Re Gazley HC Wellington CIV-2011-485-1776, 26 October 2011.18 "Rudeness to prosecutor and court staff" (2017) 906 LawTalk.[60] He considers that his "lapse in judgement" should be characterised as a"significant, but not serious" lapse. He says he now realises that dealing with SeniorConstable Manning in the way he did was ineffective and has now taken a differentand "more moderate and responsible approach". He has also resolved his proposedcivil claim against Senior Constable Manning and offered an apology to Mrs Manning.[61] For these reasons, he submits that the Court can be satisfied that there is norisk of future misconduct or potential harm to the profession's reputation.Discussion[62] There is no doubt that the material which was brought to the Law Society'sattention displays a serious lack of judgement. Indeed, if he were a practising lawyer,I consider it would warrant referral to the Disciplinary Tribunal as misconduct whichmay risk striking off. The issue is whether, as Mr Lincoln suggests, it constitutes aone-off lapse of judgement, which cannot be categorised as so serious to warrantdeclining admission or, if it is, whether Mr Lincoln has sufficiently distanced himselffrom it that I can be confident it is behaviour which would not be repeated in practice.[63] For several reasons I have not reached that threshold.[64] The conduct was not, in my view, a one-off "complete brain meltdown" asMr Lincoln sought to characterise it in cross-examination. Rather, the post relating toSenior Constable Manning was the consequence of considerable planning. It requiredplanning to set up the filming of the service of documents. It required further planningto add a pointedly named soundtrack to the video. It required research to track downthe personal information which was included about the Manning family in theFacebook post. Finally, it required planning to complete the Facebook post includinga link to the uploaded video.[65] His NSA Facebook post and subsequent message to Mrs Manning was clearlydesigned to threaten and intimidate. However, Mr Lincoln showed little, if any,appreciation of this. When questioned by the interviewing lawyers on behalf of theLaw Society and asked what justification there was to publish the link toMrs Manning's Facebook page, Mr Lincoln accepted there was no justification for it,but said "I don't see it as having a go at her in any way". He also denied that puttingpersonal contact details for the Manning family on the Facebook post could be seenas an invitation to NSA members to engage in harassment of those people.[66] Similarly, when asked whether the message to Mrs Manning was intended toinspire fear in her about the wellbeing of her children, he avoided answering that,simply saying "it was intended to convey to her the possible consequences ofMr Manning being imprisoned for his offending". These answers demonstrated, inmy view, either an inability, or an unwillingness, to acknowledge how his actions wereperceived by others.[67] It is telling, too, that Mr Lincoln only offered an apology to Mrs Manning, afterhe had been interviewed by the Law Society and when it was clear that his behaviourput his admission at risk. Had it truly been an isolated lapse of judgement in responseto "exceptional circumstances", as Mr Lincoln describes it, one would have expectedan appropriate apology to have followed promptly, as soon as his senses returned.Instead it was offered in muted terms, more than half a year after the offendingbehaviour had occurred.[68] I also take into account that the Facebook post was made at a time whenMr Lincoln had almost completed his legal studies. Indeed, he had already started hisprofessionals course at that stage. The fact that he understood the responsibilities ofan officer of the Court by then, and the high standards of independence and rectitudeto be shown by lawyers, exacerbates the lapse of judgement illustrated by theseactions. Furthermore, his assertions that Senior Constable Manning had committed arange of serious offences, without yet having been tried for them, were more egregiousgiven his legal training than they would be coming from someone who was untrained.It is also behaviour that I suspect Mr Lincoln would be quick to condemn if he wasthe subject of it.[69] I consider Mr Lincoln's zealous pursuit of the constables involved in the 2015incident also reflects a lack of independence and judgement. While I acknowledgethat fearlessness is an admirable attribute in a lawyer, particularly in a criminal lawyer,that quality must be tempered by objectivity and judgement. Here, however,Mr Lincoln was not content to be vindicated by Judge Maze in the District Court, norwas he content when his civil proceedings against Senior Constable Manning weresettled. He then commenced criminal prosecutions against two of the officers involvedin the prosecution against him. He has now had one of these sets of prosecutionsstruck out as an abuse of process, and, as a consequence, he has accepted that he cannotproceed with the other.[70] Reprehensible as this conduct is, particularly given Mr Lincoln's maturity andlegal training, the case would be more finely balanced if I could be sure Mr Lincolnhad never behaved this way before and it truly was an isolated period of behaviourtriggered by the events of 2015. However, the 1994 judgment of Judge Pethig citescorrespondence which shows a remarkable similarity to the intemperate andthreatening nature of the more recent Facebook post and message.[71] The judgment involved an appeal of the decision of the District Commanderof the Nelson Police District to revoke Mr Lincoln's firearms licence. The decisionstemmed from allegations of family violence and volatility of Mr Lincoln's character.As the allegations of family violence were never the subject of convictions, I ignorethem entirely for the purpose of this decision. What I do not ignore is the content ofletters which Mr Lincoln wrote in relation to the revocation decision. Judge Pethigdescribed it as "extraordinary correspondence" and, having read the extracts in thejudgment, I agree. Two extracts are cited in [48] above. The correspondenceculminated in a letter of 12 August sent directly to the District Commander whichincluded the following extract:Sending Detectives to my home, enquiring about the Stoke watch-house fire,is insulting, derogatory and totally misconceived – however, probably exactlywhat could be expected from you. I am not amused.You started with a false allegation that I ripped a t-shirt, then you progress toassault on a female with a knife, threatening to do grievous bodily harm witha firearm, unlawful possession of a firearm, and child abuse. Now it's torchinga police station what next?, perhaps the Buxton Square murder?I wish you would settle on some climax of your almost daily attempts atharassment and intimidation, it is tiring having to continually revise upward,and re-draft the claim in respect to damages.For the next week or so, I will be in Christchurch, so in the meantime ifsomeone again expresses the general community feeling toward the police inNelson, don't blame me!The first sign of mental unsoundness (having one eye closed) is obviouslyeffecting (sic) you. You are a sick man Mr Davies – you need help.[72] As the Judge explains, there was an arson attempt on the Stoke police stationand Mr Lincoln was one of those interviewed about where he had been at the time.While that was the only enquiry made of him, Mr Lincoln took umbrage and regardedit as further evidence of Superintendent Davies' malice. Judge Pethig drew aconclusion which seems to me apt to describe Mr Lincoln's response to the recentevents leading to the NSA Facebook post. He said:I have given the flavour of the letters to show the reaction of Mr Lincoln towhat seemed to be ordinary events, albeit ones which he considered reflectedon him. His view of all of these is grossly exaggerated in its approach.[73] The totality of this evidence leads me to conclude that Mr Lincoln has anenduring frailty of character which has not altered with age or legal training and he isnot someone who will always deal responsibly and dispassionately with those whomhe considers have wronged him.[74] Finally, I consider it is of particular concern that his intemperate behaviour hasbeen directed at representatives of an important arm of the rule of law: the policeforce. While Mr Lincoln will complain that his response was prompted by equally, ifnot more, intemperate behaviour by members of the police, that is not the point. As apotential officer of the Court, he should be entrusted to challenge such behaviour byindividual officers through the appropriate channels. He should not resort to bullying,threats or intimidation.[75] In my view the public history of his dealings with the police would reflectpoorly on the legal profession as a whole if he were admitted into practice. Indeed, Iaccept the Law Society's submission that the admission of someone who has behavedin this way would risk undermining public confidence in the legal profession.Conclusion[76] Given the frailty of character that has been identified, which I cannot dismissas either a one-off incident, or so far in the past that it can be discounted, I am notsatisfied that Mr Lincoln is a fit and proper person to be admitted as a barrister andsolicitor of this Court.[77] Accordingly, his application for admission is declined.Costs[78] The issue of costs is reserved. Should the Law Society seek costs:(a) it must file a memorandum setting out the costs/disbursements it seekswithin 10 working days of the date of release of this judgment;(b) Mr Lincoln is to file a response within a further 10 working days.[79] Costs will then be dealt with on the papers unless I decide I need to hear fromthe parties.Solicitors:Paul Collins, Barrister, AucklandCopy to: Mr Lincoln