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VIC Should Friend Disclose Past Assault Charges?

Discussion in 'Criminal Law Forum' started by DaleA76, 12 October 2016.

  1. DaleA76

    DaleA76 Active Member

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    Hello,

    Posting this for a friend. They are about to apply for admission as a lawyer. They have had some instances in the past of criminal behaviour so she is not sure whether she has to disclose this or not. One charge for assault and couple other things, but the charges were completely withdrawn and also police had to pay her costs.

    She also had warning for an assignment but nothing was every recorded on her record at university.

    Any help would be appreciated.
     
  2. Tim W

    Tim W Lawyer

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    Yes.
    It won't necessarily be the assault charges that bar your friend from admission.
    But the failing to disclose them - that is an ethical failure that could be fatal to admission.
    Likewise the academic misconduct.
     
    Rod likes this.
  3. Rod

    Rod Well-Known Member

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    Agree with Tim. But your friend should know this already having done ethics. Failure to disclose can be worse than the offence itself.

    Rule: Honesty is valued more than minor offences. Failure to disclose is considered to be dishonest.
     
  4. DaleA76

    DaleA76 Active Member

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    If you see the admissions disclosure guidelines it says:

    Whether or not a criminal charge (as distinct from a conviction) should be disclosed will depend on the circumstances. If the charge did not proceed for a technical reason, such as the expiration of a time limit, disclosure may be required. On the other hand, if the charge was denied and the matter did not proceed because of an acknowledged lack of evidence, disclosure may not be necessary.

    With my friend the charge did not proceed because lack of evidence and they paid her costs

    Also what about wrning for assignment, nothing on her record
     
  5. Rod

    Rod Well-Known Member

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    She can always ask the admissions board what to do :)

    Somehow suspect they will refer her to their disclosure guidelines.

    From the guidelines:

    S2: It is important to understand that any matter bearing on an applicant's fitness should be disclosed, whether or not that matter is mentioned in these Guidelines. It is thus prudent to err on the side of disclosing, rather than concealing, information which may turn out to be relevant in the eyes of an Admitting Authority or a Court.

    s3(c): The candour demonstrated in any disclosure by an applicant is highly relevant when determining present fitness. High standards are applied in assessing the candour of any disclosures. Full and frank disclosure is essential, although in most circumstances disclosure of past indiscretions will not result in an applicant being denied admission.

    (d) An applicant’s present understanding and estimation of the applicant's past conduct is relevant.

    (e) If an applicant makes a full disclosure of a condition relevant to the applicant's capacity and demonstrates that the condition is appropriately managed, it is highly unlikely that the disclosure will lead to an adverse assessment of the applicant's suitability for admission.
     
  6. Iamthelaw

    Iamthelaw Well-Known Member

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    I assume 'you're friend' is applying for admission rather than a practicing certificate? I make this assumption based on your copy of an excerpt from the VLAB website rather than the LSBC? Although much in the same there are slightly differing requirements.

    In short:

    Criminal - Your friend will need to make disclosure pursuant to Rule 10 of the Admission Rules in establishing she is a fit and proper person, onus is on the applicant to establish fitness. The board will take into account the police reports (rule 18), disclosure statement made by the applicant (rule 17) stat dec of the applicant's character (rule 16) and student conduct report (rule 19) in order to determine if an applicant is a fit and proper person.

    Candour is the most important thing when drafting disclosure statements and past criminal conduct is not an automatic bar to admission. Even where an applicant has been charged and acquitted, full disclosure is required (Re Del Castillo (1999)).

    Academic - Regardless of whether an official misconduct report was compiled, again in this particular instance it would be wise to disclose. See Re OG (a lawyer) (2007)

    Summary:
    Disclose everything

    Also, view the Legal Profession Uniform Admission Rules 2015 and the Legal Profession Uniform Law Application Act 2014.
     
    Tim W likes this.
  7. sammy01

    sammy01 Well-Known Member

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    Sorry - too good a chance not to take. Maybe your friend needs to re-do the ethics course...
     

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