A Sydney barrister who simulated oral sex by pushing a female clerk’s head downwards as part of a “ritualised greeting” has avoided a fine and will not have to undertake sexual harassment counselling.
In a decision handed down on Friday, the civil and administrative tribunal of New South Wales found the barrister was truly remorseful since the 2017 incident with an assistant barristers’ clerk.
In its reasons for the decision, the tribunal described how the barrister, known in the hearing as EFA, simulated oral sex with another male barrister, before then lightly touching the head of the clerk, known as H, and saying “suck my dick” while pushing her head “slightly forward and down in a direction away” from him.
“We have found that EFA’s actions were a very poorly judged attempt to include H in the ritualised greeting he had engaged in with the other barrister,” the tribunal found.
“The incident was an ill-judged attempt by EFA, late in the evening, after consuming a considerable quantity of alcohol, to include H in a jokey greeting ritual engaged in by EFA with a friend.
“H was angered, offended, embarrassed and humiliated. EFA had not intended to anger, offend, embarrass or humiliate her, and he was appalled when he discovered that he had done so.”
The tribunal said a medical report provided by a psychiatrist found EFA would be at risk of suicide if a non-disclosure order applied to the proceedings was lifted, resulting in him being named.
He had been facing a fine of up to $25,000 after earlier being found guilty of unsatisfactory professional conduct over the incident.
But the tribunal found that it was unlikely imposing a fine would serve as deterrence to others, and that “to the extent that it is possible to deter people from making ill-judged jokes in very poor taste, the awareness of this matter, and its outcome and consequences, is likely to be sufficient deterrence”.
It also found that, because EFA was not at any risk of conducting himself in a similar way in the future, a counselling session was unnecessary.
“The five character references submitted are unanimous in saying that the incident was well out of character for EFA. The experience of all of the referees is that EFA is respectful of others, including women, and has good relationships with female staff, clients and friends.
“[EFA’s] submissions emphasised that [he] has ‘fundamentally altered his relationship with alcohol’, and that the tribunal can be confident that the conduct will never be repeated.
“EFA has experienced negative impacts upon his relationships, his practice and his health as a result of the proceedings.”
