Analysis and Interpretation Assignment-
Case Analysis
Legal Profession Conduct Commissioner v Semaan [2017] SASCFC 19 10 February 2017
Material Facts:
Semaan completed a Bachelor of Laws and Legal Practice at Flinders University in December 2010, with this experience he applied for employment. However, he falsified his curriculum vitae in January 2012 which he admitted to, and in the following month of February he deliberately altered his level of qualifications, subject grades and forged a Commerce degree. At this time, S was admitted to practice as a barrister and solicitor in the Supreme Court of South Australia in which he altered a transcript to support his application for employment. The Legal Practitioners Conduct Board had taken S …show more content…
Ratio of the case:
[16] ‘The forging of academic transcripts by legal practitioners is, for obvious reasons, serious professional misconduct”.
It is unambiguously clear that to maintain professional conduct as a legal practitioner, that in fact all academic transcripts must be legitimate and must be obtained correctly. Therefore, if a legal practitioner has falsified legal documents they are not adhering to the Legal Practitioners Act 1981.
Statement made in obiter dictum:
[19] “The Practitioner’s inexperience and youth do not ameliorate his misconduct because the failing from which it arose is, fundamentally, a moral one. Nor is his moral failing a product of his depression”.
The obiter dictum, is an opinion of the judge and therefore, not legally binding. In reference to this statement it is clear that the judge has determined the guilt of S by concluding that his age was no defence to act in a non-moral way; his can be supported by other practitioners fulfilling the same requirements. Seaman’s mental illness was not a justification for him to behave in a dishonest manner. The judge implying that his actions were not a result of his depression and therefore was aware that what he was doing was …show more content…
Under s.3(2) ‘any member of the South Australian police’ is certified to issue a fine when s.3(1) of the act is breached. Constable Dennis has therefore acted within his authority as he is a legitimate member if the South Australian Police force. From the information provided the $500 fine was issues in accordance with s.3(2) and it was reasonable for Constable D to afford A the fine.
Is the McDonalds ‘golden arches’ sign considered an ‘other sign’ for the purpose of the act?
According to s.3(2) firstly, a breach of s.3(1) must occur prior; stating ‘no person shall display a corflute, poster or other sign on any pole within 5 metres of a street…’. In order to conclude if the ‘golden arches’ sign is considered an ‘other sign’ the maxim of ejusdem generis is used; meaning of the same kind. This in turn determines that ‘other signs’ is the equivalent of corflute or poster in which the ‘golden arches’ sign would not be comparable.
Overall conclusion:
It is evident that A has received an on-the-spot fine under s.3(2) of the Electoral Improvement Act 2018 (SA) however, in relation to the circumstances of the breach they do not appear to be relevant to the nature of the act and therefore, it is likely that A could successfully appeal the
Case Analysis
Legal Profession Conduct Commissioner v Semaan [2017] SASCFC 19 10 February 2017
Material Facts:
Semaan completed a Bachelor of Laws and Legal Practice at Flinders University in December 2010, with this experience he applied for employment. However, he falsified his curriculum vitae in January 2012 which he admitted to, and in the following month of February he deliberately altered his level of qualifications, subject grades and forged a Commerce degree. At this time, S was admitted to practice as a barrister and solicitor in the Supreme Court of South Australia in which he altered a transcript to support his application for employment. The Legal Practitioners Conduct Board had taken S …show more content…
Ratio of the case:
[16] ‘The forging of academic transcripts by legal practitioners is, for obvious reasons, serious professional misconduct”.
It is unambiguously clear that to maintain professional conduct as a legal practitioner, that in fact all academic transcripts must be legitimate and must be obtained correctly. Therefore, if a legal practitioner has falsified legal documents they are not adhering to the Legal Practitioners Act 1981.
Statement made in obiter dictum:
[19] “The Practitioner’s inexperience and youth do not ameliorate his misconduct because the failing from which it arose is, fundamentally, a moral one. Nor is his moral failing a product of his depression”.
The obiter dictum, is an opinion of the judge and therefore, not legally binding. In reference to this statement it is clear that the judge has determined the guilt of S by concluding that his age was no defence to act in a non-moral way; his can be supported by other practitioners fulfilling the same requirements. Seaman’s mental illness was not a justification for him to behave in a dishonest manner. The judge implying that his actions were not a result of his depression and therefore was aware that what he was doing was …show more content…
Under s.3(2) ‘any member of the South Australian police’ is certified to issue a fine when s.3(1) of the act is breached. Constable Dennis has therefore acted within his authority as he is a legitimate member if the South Australian Police force. From the information provided the $500 fine was issues in accordance with s.3(2) and it was reasonable for Constable D to afford A the fine.
Is the McDonalds ‘golden arches’ sign considered an ‘other sign’ for the purpose of the act?
According to s.3(2) firstly, a breach of s.3(1) must occur prior; stating ‘no person shall display a corflute, poster or other sign on any pole within 5 metres of a street…’. In order to conclude if the ‘golden arches’ sign is considered an ‘other sign’ the maxim of ejusdem generis is used; meaning of the same kind. This in turn determines that ‘other signs’ is the equivalent of corflute or poster in which the ‘golden arches’ sign would not be comparable.
Overall conclusion:
It is evident that A has received an on-the-spot fine under s.3(2) of the Electoral Improvement Act 2018 (SA) however, in relation to the circumstances of the breach they do not appear to be relevant to the nature of the act and therefore, it is likely that A could successfully appeal the