Citation: McGrory v R [2018] NSWCCA 149
Court: Court of Criminal Appeal
Date: 23 July 2018
Judge(s): Simpson AJA; Schmidt J; Button J
Background
The appellant had been convicted of multiple counts of sexual offences and offences of violence and brought an appeal against that conviction. He had not obtained legal aid, leaving his representation in the hands of a solicitor, Mr Eaton, who had been admitted in 2006 but held only a restricted practising certificate.
The restriction arose from a condition imposed under s 49 of the Legal Profession Uniform Law (NSW), which requires the holder of such a certificate to practise under the supervision of an Australian lawyer for two years before obtaining full practice rights. There was no evidence that Mr Eaton had ever satisfied that requirement.
The appeal was listed for hearing on 2 July 2018. Prior to the hearing, the Registrar wrote to Mr Eaton requesting evidence of his eligibility to appear, including confirmation of his admission, a copy of his practising certificate, and details of his supervising lawyer. Mr Eaton provided no documentation in response, citing a hospitalisation as the reason for his delayed reply.
Legal Issues
- Whether a solicitor holding a restricted practising certificate under s 49 of the Legal Profession Uniform Law (NSW) could be granted leave to appear in the Court of Criminal Appeal
- Whether Mr Eaton had demonstrated sufficient competence to justify departing from the statutory supervision requirement
Decision
When Mr Eaton appeared on 2 July 2018 and sought leave to represent the appellant, he produced none of the material the Registrar had requested. The Court therefore had before it no documentation confirming his admission, the terms of his certificate, or any supervision arrangement.
The Court refused leave to appear. It was not satisfied that Mr Eaton had demonstrated a sufficient level of competence to warrant departure from the statutory requirement that solicitors on restricted certificates must be supervised for two years in order to establish an appropriate standard of practice. The written submissions that had been filed, combined with Mr Eaton's failure to provide any supporting documentation, informed that conclusion.
The practical consequence was that the appellant felt unable to present the appeal himself. The appeal was accordingly adjourned, leaving the substantive conviction grounds unresolved at this stage.
Orders Made
• Leave to appear refused for John Eaton
• Appeal adjourned
Key Takeaways
- The Court of Criminal Appeal confirmed that a solicitor holding a restricted practising certificate under s 49 of the Legal Profession Uniform Law (NSW) does not have an automatic right of appearance and must seek the court's leave.
- Leave to appear will be refused where the solicitor cannot demonstrate a sufficient level of competence to justify departing from the statutory supervision requirement.
- Failure to produce documentary evidence of admission, practising certificate status, and supervision arrangements when specifically requested by the Registrar weighs against any grant of leave.
- Under s 49 of the Legal Profession Uniform Law (NSW), the two-year supervised practice condition exists to ensure a baseline level of competence; the Court treated that statutory purpose as a relevant consideration in refusing leave.
- Refusing leave can have serious procedural consequences for unrepresented appellants, as illustrated here where the appeal was adjourned because the appellant was unable to present it without assistance.
Legislation and Cases Referenced
Legislation:
- Legal Profession Uniform Law (NSW), s 49
Cases cited: None referenced in the judgment text.