Ipswich lawyer Cameron McKenzie struck off for extortion

Cameron McKenzie has been removed from the roll of lawyers after his conviction for extortion.

Extortion

In 15 January 2017, then Ipswich Mayor Paul Pisasale had a number of telephone calls with the complainant Xin Li falsely purporting to be a private investigator and demanding that the complainant pay a sum of money to Yutian Li, a woman the complainant had had a relationship with. Pisasale threatened to cause detriment to the complainant, including by having him subjected to court proceedings, being sued for $200,000, incurring costs of $20,000 in court, being subjected to the adverse publicity of court proceedings and being summoned to go to court.

On 1 February 2017, Cameron McKenzie sent a solicitor’s letter at the request of Pisasale to the complainant. The letter falsely claimed that McKenzie was acting for the complainant’s wife, and demanded that the complainant pay $8,400, which was said to reflect expenses incurred of $6,100 for a private investigator, $1,500 miscellaneous charges, and $800 of legal costs.

That demand was accompanied by a threat to cause detriment to the complainant, namely that in the absence of payment the complainant was to “Answer for your actions in the Federal Court of Australia”, and that a failure to accept the offer may lead to the complainant being criminally prosecuted through his actions being discovered in a court of law.

The trial

In July 2019, a Brisbane District Court jury found McKenzie guilty of one count of extortion. McKenzie was sentenced to 18 months’ jail, suspended after serving 9 months.

McKenzie’s appeals

McKenzie appealed his conviction on the ground that it was not open to a jury to conclude beyond reasonable doubt that he knew that Ms Li had not incurred expenses (if, in fact, that had been proven).

In March 2020, the Court of Appeal dismissed McKenzie’s appeal. Morrison JA noted among other things that McKenzie was given divergent amounts claimed by Pisasale, only dealt with Pisasale and exchanges subsequently entered into with Pisasale revealed an intent to scare the complainant. Morrison JA (with whom the other judges agreed) held that these matters entitled the jury to be satisfied of the absence of reasonable cause and the true nature of what was intended when the letter of demand was sent.

McKenzie unsuccessfully applied for leave to appeal to the High Court.

QCAT hearing

McKenzie resisted a striking off order, arguing that he should be suspended from practising for a period of three years, undergo ongoing psychological treatment and submit to ethics training. His Barrister Christopher Upton argued that McKenzie was remorseful, contrite and embarrassed by his conduct and that:

“I say (McKenzie) is a different man than he was in 2019. There is compelling evidence that he is now a changed man and is (continually) changing.”

Legal Profession Act 2007

Section 456 of the Legal Profession Act 2007 provides the Queensland Civil and Administrative Tribunal (QCAT) with a broad discretion on what sanction(s) to impose against a legal practitioner being found guilty of misconduct:

(1) If, after the tribunal has completed a hearing of a discipline application in relation to a complaint or an investigation matter against an Australian legal practitioner, the tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the tribunal may make any order as it thinks fit, including any 1 or more of the orders stated in this section.

(2) The tribunal may, under this subsection, make 1 or more of the following in a way it considers appropriate—

(a) an order recommending that the name of the Australian legal practitioner be removed from the local roll;

(b) an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

(d) an order that—

(i) imposes stated conditions on the practitioner’s practising certificate granted or to be issued under this Act; and

(ii) imposes the conditions for a stated period; and

(iii) specifies the time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner;

(f) an order that no law practice in this jurisdiction may, for a period stated in the order of not more than 5 years—

(i) employ or continue to employ the practitioner in a law practice in this jurisdiction; or

(ii) employ or continue to employ the practitioner in this jurisdiction unless the conditions of employment are subject to conditions stated in the order.

(3) The tribunal may, under this subsection, make 1 or more of the following—

(a) an order recommending that the name of the Australian legal practitioner be removed under a corresponding law from an interstate roll;

(b) an order recommending that the practitioner’s interstate practising certificate be suspended for a stated period or cancelled under a corresponding law;

(c) an order recommending that an interstate practising certificate not be, under a corresponding law, granted to the practitioner until the end of a stated period;

(d) an order recommending—

(i) that stated conditions be imposed on the practitioner’s interstate practising certificate; and

(ii) that the conditions be imposed for a stated period; and

(iii) a stated time, if any, after which the practitioner may apply to the tribunal for the conditions to be amended or removed.

(4) The tribunal may, under this subsection, make 1 or more of the following—

(a) an order that the Australian legal practitioner pay a penalty of a stated amount, not more than $100,000;

(b) a compensation order;

(c) an order that the practitioner undertake and complete a stated course of further legal education;

(d) an order that, for a stated period, the practitioner engage in legal practice under supervision as stated in the order;

(e) an order that the practitioner do or refrain from doing something in connection with the practitioner engaging in legal practice;

(f) an order that the practitioner stop accepting instructions as a public notary in relation to notarial services;

(g) an order that engaging in legal practice by the practitioner is to be managed for a stated period in a stated way or subject to stated conditions;

(h) an order that engaging in legal practice by the practitioner is to be subject to periodic inspection by a person nominated by the relevant regulatory authority for a stated period;

(i) an order that the practitioner seek advice from a stated person in relation to the practitioner’s management of engaging in legal practice;

(j) an order that the practitioner must not apply for a local practising certificate for a stated period.

(5) To remove any doubt, it is declared that the tribunal may make any number of orders mentioned in any or all of subsections (2), (3) and (4).

The case law

The case law establishes the following principles:

– Disciplinary proceedings are not punitive, their purpose is protecting the public: Attorney-General of the State of Queensland v Legal Services Commissioner v Shand [2018] QCA 66 at [52], although this involves elements of specific and general deterrence: Attorney-General of the State of Queensland v Legal Services Commissioner v Shand at [54]. As the Court of Appeal has noted, “regard should primarily be had to the protection of the public and the maintenance of proper professional standards”: Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149; [2008] QCA 301 at [122].

– Convictions for serious criminal offences do not necessarily result in a legal practitioner being removed from the roll: Ziems v The Prothonotary of The Supreme Court of N.S.W. (1957) 97 CLR 279.

– However, conduct of a serious nature can provide “instant demonstration of unfitness”: Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 per Kitto J at 298, Legal Services Commissioner v Meehan [2019] QCAT 17.

– The question is not whether the practitioner was unfit at the time of the misconduct, but whether they are presently unfit: Prothonotary v Del Castillo [2001] NSWCA 75 at [71], Legal Services Commissioner v Madden (No. 2) [2008] QCA 301 at [125], Legal Services Commissioner v Dempsey (No. 2) [2009] QLPT 23 at [3].

– The test to be applied when deciding whether to strike off is whether it is probable that a legal practitioner is permanently unfit to remain a lawyer: Watts v Legal Services Commissioner [2016] QCA 224 at [46].

In the case of Harold Shand, the practitioner was convicted by a jury of making a corrupt payment of $60,000 to a Minister of the Crown named Nuttall, contrary to section 442BA of the Criminal Code (Qld). Shand had done so as a company director, and had previously declined an offer to assist prosecutors against Nuttall in return for being spared prosecution. Shand was sentenced to 15 months imprisonment to be suspended after serving 4 months. Years later, he was struck off on appeal.

In Barristers’ Board v Darveniza [2000] QCA 253, it was observed that:

“Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system which he or she practices”

Justice Duncan McMeekin QC held that McKenzie’s material showed he was not yet rehabilitated, and that “There is no reason at all to think that he is rehabilitated, and no way of knowing if he will ever be.”

Comparing McKenzie’s case to that of Shand, McMeekin J noted that there were some important differences:

(a) McKenzie’s conduct was in the course of his legal practise;
(b) McKenzie’s criminal conduct was arguably more serious – both the maximum term of imprisonment provided for (fourteen years versus seven) and the actual sentence imposed were greater;
(c) there was a victim as a result of McKenzie’s extortion who suffered harm as a result of his conduct;
(d) McKenzie cannot demonstrate 15 years of blameless conduct and so, greater confidence in his rehabilitation; and
(e) McKenzie has every intention of again practising.

Endorsing the above comments in Darveniza, Justice McMeekin QC said they precisely describe Mr McKenzie’s conduct and situation, and concluded that:

“We are acutely conscious that a decision here ending a career of a young man for at least the foreseeable future is a serious step. We have determined nonetheless that there is no evidence to justify the view that Mr McKenzie is or is likely to become a person fit to practise. There is no alternative available that will sufficiently protect the public and the reputation of the profession other than to recommend that Mr McKenzie’s name be removed from the local roll.”

This case is another example that whether a legal practitioner is struck off after committing a serious criminal offence depends on the facts and circumstances of the case. Cameron McKenzie committed a serious criminal offence in the course of his legal practice. In signs that he lacked insight or remorse, he pleaded not guilty and then appealed his conviction, and later sought leave to appeal to the High Court. Although McKenzie claimed to have reformed, the Tribunal was not satisfied that was or would be the case. The tribunal therefore considered it had no alternative but to make a strike-off order.