She was struck off for delivering contraband to a prisoner
The High Court has refused a former criminal barrister's application for restoration to the roll of barristers and solicitors after being struck off for delivering contraband to a prisoner.
Davina Reid is a former criminal barrister who was struck off the roll in 2015 following a conviction for having delivered contraband to a prisoner, who later became her husband. The contraband consists of an iPhone, cigarettes, and a lighter. She applied for restoration to the roll, but the New Zealand Lawyers and Conveyancers Disciplinary Tribunal dismissed her application. She appealed to the high court.
Reid had been practising law in Auckland for approximately five years at the time of the offence. She was counsel to Liam Reid, a prisoner convicted concerning charges of rape, murder, and attempted murder.
The high court noted the tribunal's finding that Davina Reid was "unable to fulsomely acknowledge her wrongdoings. This may be because she regards it as a small moment. That may be exacerbated because she feels treated disproportionately and discriminatively. These are barriers of genuine remorse without which change is impossible."
Furthermore, the tribunal observed that although Reid admitted what she did was wrong when asked why it was wrong, her answer mainly focused on the unfortunate consequences it had for her. The tribunal was then left with the view that Reid was mostly sorry about being found out and called to account.
The tribunal said, "Her record of blurring professional boundaries, becoming over-involved with clients, blatantly disregarding the law, advancing untruth or obscuring the truth blight her ability to satisfy us that she is now a fit and proper person to be re-enrolled."
The high court noted that the tribunal's jurisdiction to make orders restoring a person's name to the roll arises under s. 246 of the Lawyers and Conveyancers Act 2006 (LCA). The essential test is whether the applicant demonstrated that they are a fit and proper person to practice as a barrister, solicitor or both.
Furthermore, the court observed that the LCA prescribed relevant matters that can be taken into account to determine whether a person is fit and proper to be admitted to the roll, including whether the person is of good character, whether they have been convicted of an offence, the nature of the offence, the time that has elapsed since the offence was committed, and the person's age when the offence was committed.
The high court also cited jurisprudence concerning the fit and proper standard to ensure that those admitted to the profession can be entrusted to meet the duties and obligations of those who practice as lawyers. The court noted that the concept of fit and proper involves considering whether the applicant is honest, trustworthy, and a person of integrity. Additionally, when assessing past convictions, the court must consider whether that past conduct remains relevant. The inquiry is a fact-specific one, and the court must look at all of the evidence in the round and judge the applicant's present ability to meet their duties and obligations as a lawyer.
The court noted that one aspect of a holistic assessment will always be how the applicant now responds to their previous offending. The court, citing case jurisprudence, stated that the demonstration of full and unambiguous acknowledgement of previous offence is a precondition of genuine remorse, which is significant in assessing whether past wrongdoing remains relevant.
The high court rejected at the outset the argument that the tribunal somehow was influenced by Reid's emotional connection with and subsequent marriage to a prisoner convicted for rape and murder. The court also rejected any suggestion of unconscious racial bias in the decision, emphasising the diversity of the panel and the quality of its members.
The court observed that the past conduct to which the tribunal's ongoing relevancy inquiry was directed included two principal components—the offence for which Reid was charged and the nature of Reid's defence. The court considered the degree of seriousness of the offence committed by Reid under the Corrections Act. It ruled that a complete and unconditional acknowledgement of wrongdoing and the gravity of her offending was a necessary first step towards establishing an absence of contemporary relevance. Only then could she be considered to have undertaken the level of self-reflection needed to identify the relevant triggers behind her wrongdoing and necessary coping mechanisms.
The court noted that based on the evidence, Reid's inability to fulsomely acknowledge her wrongdoing appeared based on a continuing belief that the offence was of a relatively small moment and that she had been treated disproportionately and discriminatively. The court ultimately agreed with the tribunal's finding that Reid's persistence in this view of her offending is a barrier to genuine remorse, without which it is difficult to be confident about lasting change.
Accordingly, the court was not satisfied that the tribunal was in error in its conclusion that Reid had not yet reached the point of sufficiently full and unambiguous acknowledgement of her offending, its significance and implications to have shown good character in that respect.
Furthermore, the court found that Reid failed to establish that the tribunal was in error when it concluded that, without such unambiguous acknowledgement, her road to rehabilitation was incomplete for the reason that it could not otherwise be satisfied that she had sufficient insight to recognise relevant triggers and avoid repetition. Consequently, the court dismissed her appeal.
