Criminal

R v JF (Unreported) NSWDC per Woods QC DCJ

In this matter Greg Walsh acted for JF (“the Accused”) who was charged with seven (7) counts of sexual assault upon his step-daughter (“the Complainant”).  The allegations were from 1999 until 2005.

The allegations commenced with an alleged incident in 1999 when the Complainant was aged eight (8). She alleged that, in the shower of the family home, she was subjected to an act of oral intercourse.

Later in the same year, the Complainant alleged that she was asleep in her bedroom with her sister when a similar act was perpetrated upon her and then an act of vaginal intercourse was alleged to have taken place.  At the time the Complainant was aged eight (8).

A further act of alleged oral intercourse was also alleged in similar circumstances to that of the previous incident.

There was a further incident in the context of the Accused explaining circumcision to the Complainant when he showed her his penis.

Thereafter there was a further alleged act of penile/vaginal intercourse.

The last incident was alleged to have occurred in the first half of 2005.

The Complainant tragically had a history of self-harm and suicidal ideation.  Her natural father had separated from her mother several years before the alleged incidents and had then left Australia to live overseas.  This had a significant impact upon the Complainant.

The Complainant had a very difficult relationship with the Accused (her step-father).  It was apparent that they clashed about most things and clearly did not get on.  The Complainant was very unhappy and felt that she was treated in a belittling fashion by the Accused.

The Complainant confided in her teacher of the degree of unhappiness that she had at home.  She was spoken to by a School Principal and denied any inappropriate conduct on the part of her step-father.  The teacher to whom she had spoken then travelled overseas, at which time the Complainant and the teacher commenced to communicate with each other by way of emails.  The teacher had a belief that the Complainant had been sexually assaulted by her step-father and to this the Complainant told her that that was not the case.

The Complainant was self-harming though this fact was not known even to her mother or the Accused.

In 2008, the Complainant spoke to a counsellor who told her that she had been sexually assaulted and that she should accept that as a fact.

At the commencement of the trial, issues relating to sexual assault communications privilege arose. It was apparent on the face of the Complainant’s statement that she had come to a belief that her symptoms of self-harm, depression and anxiety must have been attributable to a traumatic force in this case sexual abuse.  She communicated her views at varying times to a number of other people including her mother and other friends in the area in which she lived.  In one document, she expressed a number of theories about her symptoms but in doing so did not make any reference to the specific allegations that ultimately came to be the subject of the charges against the Accused.

In time, the Complainant came to a belief that she had disassociated from her emotions and that this process of disassociation had been explained to her was because she must have been sexually assaulted. Whilst overseas, the Complainant experienced incidents of “flashbacks” and “out of body experiences” which, according to her former teacher (who was living in that overseas country), were real experiences of the recounting of having been sexually assaulted by her step-father.

Greg Walsh made an application for access to be granted to a large amount of material including over 1,000 pages of email communications and other materials between the Complainant and her former teachers and Counsellors.  His Honour Woods DCJ in part granted the application which also was supported by the Crown Prosecutor. The Complainant herself was represented by Counsel, who opposed the application for access to be granted to the material.

His Honour held that there was a legitimate forensic purpose in access being granted to the material because the material was of significant probative value as to the credibility and reliability of the Complainant.

The learned Crown Prosecutor, after being granted access to the material (along with Mr Walsh), then considered the material and conferred with the Complainant.  The material was consistent with the Complainant having Recovered Memories and a belief that various symptoms that she suffered from must have been due to having been sexually assaulted.

The Director of Public Prosecutions directed a no bill against the Accused.  He was then formally discharged of each of the charges against him on 29 October 2012.

 

 

JF v DPP (Unreported) NSWDC per Woods QC DCJ (7 December 2012)

In this matter Greg Walsh acted for JF who had been charged with a number of counts of sexual assault involving his step-daughter.

The Director of Public Prosecutions no billed each of the charges.  The circumstances that led to the decision of the Director involved an argument in respect of sexual assault communications privilege.  A large amount of documentation was provided to the Court and a number of email communications between the Complainant and various counsellors were released by His Honour to the parties.

An application was made for a Certificate under the Costs in Criminal Cases Act 1967.

The application was opposed.

The Crown took a jurisdictional point and contended that the Court did not have jurisdiction to grant a Certificate.  The Crown asserted that there had been no practical purpose for the arraignment of the Accused and that steps ought to have been taken at an earlier time for access to be sought to the subject material that was the subject of sexual communications privilege.

The Crown relied upon reported decisions of the District Court namely Kaldon Karout (unrep, 15/10/2004) NSW DC per Blackmore DCJ) and Leslie Evans (unrep, 21/04/2005 per Armitage DCJ).   In effect the Crown argued the trial had not commenced within the meaning of the Costs in Criminal Cases Act.

Section 2(2) Costs in Criminal Cases Act provides that a certificate may be granted under section 2(1)(a) following an acquittal or discharge of an Accused at any time during the Trial, whether the hearing on the merits has occurred or not.  Section 2(3) states that in this section “trial” includes preliminary proceeding that form part of the Trial (for example a voir dire) and since 24 March 2004, a special hearing conducted under s.19 of the Mental Health (Criminal Procedure) Act 1990.

The present s.2 commenced on 29 November 2002, as a result of the commencement of the amending legalisation, the Courts legislation Miscellaneous Amendment Act 2002.

Until January 2002, s.2 required that a hearing on the merits occurred before a costs certificate could be granted.  The current s.2 only requires that the Accused has been “acquitted or discharged in relation to the offence concerned” after the commencement of the Trial in the proceedings, or that the Director after commencement of a Trial has given a direction that no further proceedings be taken.

Greg Walsh argued that in accordance with s.130 Criminal Procedure Act 1986 the Court had jurisdiction with respect of the conduct of proceedings and indictment and as soon as the indictment is presented and the Accused person is arraigned and any orders that may be made by the Court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

Section 130(3) provides that if proceedings are held for the purposes of making any such orders after an indictment is presented to commence at trial and before the jury is empanelled to proceed on the part of the trial of the Accused person.

In Evans His Honour Judge Armitage refused to issue a certificate even though the Accused had been arraigned before the “no bill” was granted.  In this context the Accused had been arraigned a few months earlier at a time when the Trial date was fixed.  The matter was no billed on the morning of the Trial.  His Honour held that s.130(3) of the Criminal Procedure Acthad no application in the circumstances as it refers to the indictment being “presented to commence the Trial” whereas an indictment in this case was presented to set a trial date.

Section 2(2) Costs in Criminal Cases Actwas enacted in specific terms “… at any time during a Trial whether a hearing on the merits has occurred or not”. Section 2(3) specifically provides that “Trial” includes preliminary proceedings that form part of a Trial such as a voir dire.

Thus it was submitted on behalf of the Accused/Applicant that it was somewhat serious that the Crown contended that there was no reason as to the arraignment of the Accused.  Section 130(2) Criminal Procedure Act expressly provided a fundamental statutory basis for the arraignment of the Accused.

Contrary to the Crown submissions, a subpoena had not been issued in the District Court for the production of the documents sought under sexual assault communications privilege.  The issue had been raised in the context of notices in accordance with the Act had been provided to the protected confiders and they had provided the documentation referred to in the draft subpoenas to the Court.  The Crown joined in an application that the material be provided to His Honour and argument as to the legitimate forensic purpose of such documentation then took place.

Thus in a practical sense the argument as to sexual assault communication privilege could have only arisen in this case at the time that it did upon the trial of the Accused.

Greg Walsh referred to a number of authorities in the course of argument including Alison v Director of Public Prosecutions (1991) 24 NSWLR 550; Regina v Hatfield [2001] NSW SC 334; R v MacFarlane (Unreported Supreme Court NSW 12 August 1994); R v Pavey (1997) 98 A Crim R 396; R v Manley [2000] NSW CCA 196; R v Dunn (unreported Supreme Court NSW 17 May 1990); Mordaump v Director Public Prosecutions [2007] NSW CA 121; JDB v DPP & Ors [2000] NSW SC 1092; JC v DPP [2009] NSW DC 424.

In JC v DPP [2009] NSW DC 424 Norish QC DCJ said at [44]-[45]:

“The prosecution in its submissions stated that: “(T)he complainant believes in a genuine sense that her account, or claim, of what she says occurred involving the accused”, but also acknowledges a number of inconsistencies in her accounts. The prosecution notes the tension between the complainant’s self belief and that there are “these (obvious) inconsistencies (identified by the accused through cross examination) and the complainant’s denial of them”. As has been observed by the Court of Criminal Appeal in (Johnston [2000] NSWCCA 197) the perceived need to see that “justice is done”, so to speak, is not necessarily a reasonable basis for instituting proceedings. In this matter, a “genuinely held belief” by the complainant that certain things occurred was not a reasonable basis for instituting proceedings, when an objective assessment of the complainant’s claims could lead to a conclusion that her claims are unreliable, unsustainable, untruthful or incredible. Here, in the context of the legal directions applicable, the prosecution was required to make an evaluation of the significance of ‘recent inventions’ or material additions to her initial lengthy statement years and/or months after that statement. In the context of an unsupported complainant and the absence of supporting evidence where it might be expected (JT) the ‘development’ of the complainant’s memory required very close consideration of whether it was reasonable to prosecute, even allowing for her explanations for her improved memory.

45 I acknowledge the difficulty the prosecution has in dealing with a person who may “genuinely” believe what they say or give that impression, claiming to be a victim of serious crime. However, the institution of proceedings cannot solely be left to the discretion of the complainant or founded an unquestioning acceptance of explanations for seemingly inexplicable weaknesses in her allegations. An independent prosecuting authority must be objective in its assessment to ensure that unworthy, or unsustainable, prosecutions are not brought. In my view this is a case, without regard to consideration of the accused’s good character (he was proposing to run a positive case on character) or any evidence in denial that was doomed to failure if a jury acted reasonably.”

His Honour Woods QC DCJ held that he did have jurisdiction in respect of the granting of a certificate and as to his discretion he was comfortably satisfied that it was appropriate for a certificate to be granted to the Applicant.  His Honour note that the Crown had conceded at the time of examining the subject material that it so impacted upon the credit and reliability of the Complainant that the proceedings were terminated.  Applying those facts as required by the legislation at the time the proceedings were instituted (time of the arrest of the Accused) it was appropriate that a certificate be issued.

R v Huon [2012] NSWSC 1092

Greg Walsh acted for Mr Huon (‘the offender’) who was charged with Murder. The offender was born in shanty town near Colombo, Sri Lanka and became the adopted son of a family in Sydney, NSW. He was 23 years of age at the date of the offence.

At about 7:30PM on Thursday 24 June 2010, the offender drove to the home of his grandmother (‘the deceased’) and consumed two cups of Scotch whisky and Coke. He obtained a knife from the kitchen and stabbed the deceased with it in the left cheek – the blade becoming embedded and the handle snapping off. At approximately 10:46PM, he entered the Mortdale Hotel and played poker machines and consumed drinks. He returned to the deceased’s home shortly thereafter. At about 1:00AM on Friday 25 June 2010, a sex worker attended the deceased’s home and an amount of $330 was charged to the deceased’s credit card for sexual services. At about 3:10AM, an amount of $308 was charged to the deceased’s credit card for further sexual services.

Click here to download a copy of the judgement of His Honour Justice Hall (Supreme Court of New South Wales)

R v John Edward Saffin (2012) NSWDC per Black QC DCJ

On 7 September 2012, Greg Walsh appeared for Mr Edward John Saffin in sentencing proceedings before his Honour Judge Black QC at District Court, Lismore.

Edward John Saffin had pleaded guilty to a charge of “Accessory After the Fact of Armed Robbery”. He had been remanded in custody for a period of approximately six and a half months and admitted to an intensive rehabilitation program for a period of seven and a half months. His Honour granted a remand pursuant to s.11 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) on condition that the offender undertake supervision by the Adult Probation and Parole Service and continue to undertake supervision by the Adult Probation and Parole Service, as well as continued psychiatric and drug and alcohol treatment.

The Offender faithfully complied with conditions imposed by His Honour, including regular attendances upon his treating psychiatrist, psychologist and counsellor. His Honour imposed a sentence of two (2) years wholly suspended on the condition that the Offender continue to attend upon his treatment.

Commonwealth DPP v Moffat (2012) (NSWDC, per Dick DCJ)

On 6 September 2012, Greg Walsh appeared for Edward John Moffat at the District Court, Mackay in respect of his plea to a count contrary to s. 474.19(1)(1) of the Criminal Code Act 1995 (CTH).

The sentencing proceedings were heard by her Honour Judge Dick SC.

The offender had a prior conviction of ‘Indecent Dealing’ and also an extensive subjective history. He had entered a plea at the earliest opportunity and had fully cooperated with investigating police. At the time of the execution of the search warrant the offender made admissions as to his conduct. The total number of images accessed by the offender amounted to 1,640 of which 98.5% were at level 1 on the Child Exploitation Tracking System (CETS) scale. His Honour sentenced the offender to a term of imprisonment of eight (8) months with an actual term of imprisonment of three (3) months and then a period of supervision for fifteen (15) months.

McMaster v State of NSW; Karakizos v State of NSW (2012) NSWDC 108

In this matter Greg Walsh acted for the Plaintiffs in proceedings heard before P Taylor SC DCJ.

The Defendant made an application for a stay of proceedings during related criminal proceedings.  An application was also made by the Defendant to restrict access to subpoena documents arising out of related criminal proceedings.

Greg Walsh acted for each of the Plaintiffs in respect of an incident that occurred on Monday 26 September 2011 at Colyton.  Two police officers attended this address when one of the Plaintiffs, Mr McMaster was shot in the abdomen by one of the police officers in the presence of the other two Plaintiffs.

Mr Walsh swore an affidavit opposing that the documents produced by the State of NSW “have not been accessed, uplifted or copied by” he or any of his staff or to his knowledge “any other person on behalf of the Plaintiff.”

In our argument the Plaintiff’s position was supportive of the criminal proceedings which arose out of the invasion of the home of the Plaintiffs and which had occurred just prior to the shooting of the incident in which Mr McMaster was shot by police.

The Defendant asserted that each of the Plaintiffs should not have access even to their own statements.  Further that Mr McMaster had not yet given a formal statement to police.

His Honour held that neither of these reasons could have given rise to a stay of proceedings.  The fact that Mr McMaster had not given a statement to police was not relevant to the proceedings.

The Defendant argued that the documents produced could only be used in the course of the proceedings.  In that context such statements were provided in the criminal proceedings and as such they could not be accessed in the civil proceedings.

His Honour rejected this contention and noted that it was misconceived.  There was no authority provided by Mr Saidy in support of the contentions nor was any privilege claimed in the proceedings on behalf of the Defendant.

His Honour observed that there was no longer, a rule that civil proceedings should be stayed whilst related criminal proceedings are pending.  See Griffin v Sogelease Australia Ltd & Ors [2003] NSWCA 158; Roshfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

The Defendant submitted that the Accused in the criminal proceedings would be at risk in terms of self incrimination in seeking to defend themselves in the civil proceedings.

However the problem with such an argument was the offenders are not even parties to the proceedings.  His Honour made a finding that he was not persuaded that it was likely the Defendant would cross-claim against them.

The Defendant further asserted that it would be contrary to the interests of justice or Mr McMaster or the other Plaintiffs to give a priority in pursuing their own interests in the civil proceedings to the detriment of criminal proceedings.  His Honour rejected this assertion.  It was contrary to well established authorities.

His Honour made orders that the proceedings be consolidated and that first access would be granted to defend subpoenaed documents so such documents could be marked “successful by Plaintiff’s solicitors” and grant access to the Plaintiff’s solicitors to those documents on the undertaking not to provide a copy of same to the Plaintiff other than providing to each Plaintiff a copy of their own statements.

The Defendant was ordered to pay the Plaintiff’s costs of the Notice of Motion.

 

R v John Francis Gaven (14 May 2012 – 5 July 2012)

In this matter, Greg Walsh appeared as trial counsel for John Francis Gaven – a member of the Vincentian Order – in respect of his trial at the District Court Sydney. The trial was conducted by his Honour Judge Cogswell SC and involved two (2) Complainants. The pre-trial applications extended over two weeks and involved issues involving sexual assault communications privilege, tendency and coincidence evidence and complaint evidence.

The Accused faced eleven (11) counts and the jury could not agree as to a verdict on any count. The jury was ultimately discharged by the Trial Judge.

Police v Wayne Riley & Jeanette Riley (2011)

In this matter Greg Walsh acted for International Australian Champion Golfer, Wayne Riley, and his mother who were charged with assault occasioning actual bodily harm and affray.

The charges arose as a result of an incident after Wayne’s father, Graham Riley, 71, was involved in an altercation with a youth two days before Christmas in 2010.

Wayne who has played in the European Golf Circuit for 20 years and has been a British Television Sports Commentator, denied emphatically that he was guilty of assault occasioning actual bodily harm, common assault and affray. His mother Jeanette also strenuously denied her guilt.

The incident occurred when the Riley family were on their way to a local restaurant at Oatley when the youth was involved in a ‘push and shove’ incident with Wayne’s father.

The 1991 Australian Open Champion Golfer had been heading to a bottle shop when the scuffle between his father and the youth occurred. On his return to where his father was with the youth, Wayne allegedly got into an altercation with the youth. A number of neighbours, including a police officer, came onto the scene. The Court then heard that Mrs Riley also became involved and ended up on the ground.

The case was heard by Magistrate Trad at Sutherland Local Court over two days. Her honour found that Mrs Riley had tried to stop the fight between her son and the youth and was pushed away. The youth had grabbed Mrs Riley hitting her chest and as she fell she feared she would be hit again and she struck out with her feet. She had not deliberately kicked the youth, whose head by this time was on the ground. The youth had also struck the golfer and the two had struggled with Wayne acting in self defence.

Greg Walsh made a successful application for costs.

Luke Jarvie v R (19 November 2009, Unreported per Blanch DCJ) NSWDC

In this matter Greg Walsh acted for Luke Anthony Jarvie who had been charged with the offences of hinder police; resist arrest and assault police arising from an incident at The Rocks on the evening of 26 July 2008.

Luke Jarvie was then aged 19 years and had attended a function at the Rocks with his friends. He had left the function and had walked in an easterly direction towards Argyle and George Streets, Sydney. He was not aware that approximately 400 metres away, another member of the public had been observed by patrolling police, Senior Constables Buxton and Patton, throwing a witches hat from one side of Argyle Street to the other.

Senior Constables Patton and Buxton exited their police vehicles and gave chase to the ‘thrower’. At about 11.40pm on a Saturday evening there are many members of the public upon Argyle Street, however both Patton and Buxton ran at full pace seeking to apprehend the ‘cone thrower’.

At the intersection of Argyle and George Streets, Mr Jarvie heard a noise and turned towards the noise and came into collision with the officers, firstly with Senior Constable Patton. Mr Jarvie instinctively put his hands up and Senior Constable Buxton who was only a few metres behind Patton interpreted Mr Jarvie’s actions as leaping towards Senior Constable Patton and shoulder barging him causing him to lose his balance.

According to Senior Constable Buxton, there was only a second or two between the initial contact between Patton and Jarvie and then Buxton who crash tackled Luke Jarvie front on causing his head to impact severely with the footpath. As a result of the impact Mr Jarvie lost consciousness and was convulsing. Patton and Buxton physically restrained Mr Jarvie. An off duty nurse and other witnesses called for police to take the handcuffs off Mr Jarvie and eventually they did so. The bystanding nurse then gave emergency treatment to Mr Jarvie and he was conveyed by ambulance to Sydney Hospital.

Approximately two weeks after the incident, Luke Jarvie was charged with the offences above. Mr Walsh took steps to investigate the matter including an immediate subpoena to obtain the security footage of the incident as it took place under a CCTV tower opposite the Rocks Police Station. According to the City of Sydney who is responsible for maintaining the tower, no such footage existed. There were however a number of eye-witnesses to the incident.

The matter was fixed for hearing before Magistrate Culver at the Downing Centre Local Court.

The prosecution case was that Luke Jarvie had leaped at Constable Patton and for some reason he and Constable Buxton believed that Jarvie had an object in his hand and that Buxton crash tackled him because of that purported fear. Senior Constable Patton gave evidence that after the initial contact with him and Jarvie, he removed his service weapon and pointed it at Jarvie telling him to get to the ground. He agreed that a period of time between his initial contact and that of Buxton was relatively short, He agreed that he did not say to Jarvie “Drop it!” in relation to the object allegedly in his hand.

In respect of the resist, Patton contended that despite Mr Jarvie convulsing he didn’t put his hands between his back as quickly as he should of and further that he didn’t get to the ground when he did so.

In cross-examination, Patton agreed that Mr Jarvie had absolutely nothing to do with the ‘cone-throwing’ incident and further, that Mr Jarvie had no actual object in his hand. The officer further could not explain as to why, if he believed Jarvie had an object in his hand, he didn’t ask Jarvie to drop it. The officer did mention to Buxton after Jarvie’s friends commented that he had a pre-existing head injury that he ‘thought he had a gun’. Senior Constable Patton maintained that he could not have used any alternative forms of law enforcement such as the baton because he regarded the situation as so serious that it was ‘life-threatening’. Patton was shown a photograph taken by a witness of Mr Jarvie’s facial/head injury and the Constable said that this had been deliberately affected by Mr Jarvie.

Buxton gave evidence that at no stage did he see Patton produce his firearm and not say anything to Mr Jarvie about getting to the ground. He gave a different description of how Mr Jarvie and Senior Constable Patton came into contact which was in conformity of the evidence of not only Mr Jarvie but also the eye witnesses.

Indeed, as was observed by the learned Chief Judge of the District Court:

“One unusual aspect of the police officers evidence is that Senior Constable Buxton did not see Senior Constable Patton draw his gun. In fact nobody else who gave evidence saw Senior Constable Patton draw his gun.”

Senior Constable Buxton also agreed that Mr Jarvie was convulsing and that the facial/head injury could have been occasioned by way of the contact as a result of the tackle. He also agreed that there was some mention by Patton of Mr Jarvie possibly having a gun but of course that did not make its way into the police statement. Buxton also agreed that he made his statement after reading Patton’s statement some months after the incident.

Mr Jarvie gave evidence as did a number of eye witnesses. Mr Jarvie was emphatic that the initial contact between him and Constable Patton was an accident so far as he was concerned. He had instinctively turned towards the noise he had heard and had braced for impact and then after the impact put his hands up instinctively. He had nothing in his hands. He certainly did not have any gun and indeed at all material times Mr Jarvie has been a person of outstanding good character. In a split second he was hit by Buxton and he could not recall anything about that until he work up in the emergency section of the hospital.

A number of eye witnesses gave evidence supporting Mr Jarvie’s evidence. These witnesses included a law student and a student of architecture. The identity of the nurse, despite extensive investigations, was never ascertained however neither Patton or Buxton recorded her details at the scene.

In cross-examination of Mr Jarvie, it was never suggested that he had any object in his hand, nor that he was involved in any cone throwing incident, nor that Patton pulled out his service revolver, nor told him to get to the ground. In respect of the resist, the police prosecutor could not even suggest that Mr Jarvie was conscious at the time after his head hit the ground as clearly on any view he was convulsing.

It was submitted to Magistrate Culver that the prosecution had not made out its case beyond reasonable doubt. Indeed it was an overwhelmingly strong defence case in which the Court had before it a young man of outstanding good character who had given clear evidence that he had not assaulted, hindered or resisted the police at all. Indeed, quite unusually, Senior Constable Buxton’s evidence supported the evidence of Mr Jarvie as did that of the eye-witnesses.

It was submitted that the initial contact between Mr Jarvie and Patton was entirely the fault of the police officer. It could not be suggested that an initial contact amounted to an assault and indeed for the conduct of the police running at full pace on a very busy place such as the Rocks on a Saturday night gave rise, in objective terms, to a real risk of impact with any member of the public. According to Patton, the members of the public parted ‘as if it was the red sea’.

Mr Walsh submitted to the Magistrate that there could not be an assault if the incident is one over which the accused had no control. The evidence of Patton that somehow Mr Jarvie has leaped 2-3 metres to the left causing initial contact was not supported by any other evidence including that of Constable Buxton. Significantly, the prosecutor had not put the critical aspects of the prosecution case to Mr Jarvie.

At the end of the day, what Mr Jarvie had done in turning towards the noise that he heard and bracing himself could not in any view amount to an assault. Indeed, what he had done was no more than to entirely appropriately defend himself. For instance, the risk of impact with another elderly member of the public, or for that matter a young person, was obvious. It was contended to Magistrate Culver that Patton’s conduct in running at full pace and colliding with Mr Jarvie of itself may have been unlawful as his conduct may well have amounted to an assault in the context of occurring recklessly when he should of foreseen the likelihood of inflicting fear or injury and ignored the risk, Vallence v R (1961) 108 CLR 56.

Magistrate Culver rejected all of the submissions by Mr Walsh and was comfortably satisfied that Mr Jarvie was guilty of each of the offences. The Magistrate considered that the inconsistencies between Patton and Buxton rebutted any suggestion of Mr Walsh’s conspiracy theory. The Magistrate essentially made findings rejecting the evidence of Mr Jarvie and each of the witnesses and accepted that Mr Jarvie had leaped 2-3 metres to the left and shoulder barged Patton who then drew his weapon and told Mr Jarvie to get to the ground, and that because Mr Jarvie did not get to the ground when asked to do so, Buxton physically took him to the ground as a matter of necessity because of the officers fear for their safety.

Magistrate Culver even found Mr Jarvie guilty of the resist arrest despite the overwhelming evidence that he had suffered a very severe head injury consistent with the contemporaneous photographs and rejected any suggestion that he had no volition or control over his acts.

Magistrate Culver rejected Mr Walsh’s contentions that critical elements of the prosecution case were not put to Mr Jarvie and that she found that there was no obligation on the part of the prosecutor to put such essential matters.

Magistrate Culver adjourned the matter for sentence and was initially considering imposing a full-time jail sentence on Mr Jarvie. In this regard, Mr Jarvie in 2006 had suffered a head injury in which he sustained a fractured skull and had been left with ongoing disabilities. His head had made contact with the footpath as a result of being tackled by Buxton, being the same side as the original injury 2 years earlier.

Luke Jarvie had been a member of the Life Saving movement since he was 6 years old and had received many awards as a dedicated life saver. He was also an extremely talented sports person and relied upon a testimonial of his rugby coach who was the Deputy Commissioner of Police in NSW. That person indicated to Magistrate Culver that he had observed Luke to be targeted by opposition players repeatedly over a decade because of his talent as a footballer, and he had never once retaliated on any occasion. His observations of Luke Jarvie was of outstanding good character and that he was contributed much to the community and was an outstanding sportsman. It was a tragedy that as a result of his head injury, he was unable to undertake a course of engineering at university.

Magistrate Culver placed Mr Jarvie on two year good behaviour bond. He appealed to the District Court and his matter was heard by Chief Judge Blanch on 19 November 2009. His Honour upheld the appeal and quashed each of the convictions. His Honour noted in particular that Mr Jarvie was a person of good character and that the way the circumstances had unfolded was more in keeping with Mr Jarvie’s evidence and that of his witnesses than that given by the police.

DTS v Regina [2008] NSWCCA 329

The appellant made three complaints about his Honour’s Murray direction to the jury. First, that a Murray direction should have also been given in respect of count 1. Secondly, that the failure to give a direction in respect of count 1 may have confused the jury, in circumstances where the Crown case depended almost entirely upon the evidence of the complainant. Thirdly, that his Honour erred in informing the jury that the direction was required at law, and not because of any view about the evidence held by the trial judge. Finally, the appellant submitted that the jury should have been directed that the relationship evidence needed to be proven beyond reasonable doubt.

To view a copy of the Judgment click here.

Nowak v R (2008)

In this mater Greg Walsh appeared on behalf of the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty with the intent to maliciously inflict grievous bodily harm.

The applicant and the victim were amongst a number of guests at a wedding ceremony and reception. In the course of the evening there was a disagreement with a man who was part of the bridal party. The applicant and three of his friends were asked to leave the reception by members of the families of both the bride and groom. The offender and his three friends walked down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700ml glass vodka bottle which was still sealed and full. The bride’s father was walking behind the applicant and his friends in order to ensure they left the premises. As he reached the exit gate to the driveway the applicant was pushed in the back and he swung the glass bottle which he was holding and struck the victim with it. The glass bottle shattered upon impact with the victim’s face. The victim sustained lacerations to his face and a fractured nose.

The applicant voluntarily attended Quaker’s Hill Police Station where he was arrested. At the time of his offence he was 21 years of age and 22 when he stood for sentence. He had been attending university and was within six months of completing his Bachelor of Science degree. He had no prior convictions and was a person of otherwise good character.

Greg Walsh relied upon the following Grounds of Appeal on behalf of the applicant, namely:

  1. That the sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence.
  2. That the sentencing judge erred in finding that there were aggravating features present including:
  3. The use of the weapon to inflict the injuries and the force used
  4. The extent of the injuries sustained.
  5. That the victim was vulnerable in the extreme.
  6. That the sentencing judge erred in finding there was no provocation on the part of the victim.

Buddin, Barr JJ and Bell JA agreed. They referred to the provisions of s21A(2)(c) of the Crimes (Sentencing Procedure) Act. His Honour referred to R v Elyard (2006), R v Cramp (2004). Buddin J found that the sentencing Judge had fallen into error and upheld this ground of appeal.

In relation to the issue of the victim being vulnerable, Buddin J referred to R v Tadrosse (2005). The sentencing judge found the victim, by not being armed, was vulnerable in the extreme. His Honour at [31] also found this ground of appeal had been made out. The Court found that the offence was a serious one and that in all of the circumstances no other sentence was warranted in law. The appeal was dismissed.

Police v M

In this matter Greg Walsh acted for M who on 18 June 2007 was arrested by police at his home in Balmain and charged with assault and resist arrest. It was the accused’s case that he was the subject of a vexatious complaint. This had arisen in the course of an alleged domestic violence incident. The incident had been privately witnessed by persons in the adjoining home who had contacted police.

The case concerned the powers of the police under statue and common law to enter premises and in particular the Law Enforcement (Powers & Responsibilities) Act, 2002.

It was argued by Greg Walsh on behalf of the accused that his arrest was unlawful on a number of grounds. The primary ground that in order for there to be a lawful arrest the police must suspect on reasonable grounds that arrest is necessary to achieve more of the purposes referred to in s99 of LEPRA. In the course of the argument, the observations of Smart AJ in R v Rondo (2001) was referred to. Further, the decisions of the Court of Appeal in State of New South Wales v Kuru and Pringle & Ors v Everingham (2006) arose.

The Court held that the police had trespassed in entering upon the accused’s premises. In factual terms, the accused had directed police to leave his home which they had entered. Three of the officers did so but remained at the front door. However when the Court on to find out that as the accused’s wife had impliedly given permission for police to enter there was no trespass.

The Court then dealt with the issue of the evidence relied upon by the prosecution pursuant to s138 of the Evidence Act 1995. It was submitted by Greg Walsh that such evidence was inadmissible. He relied upon the well known passage in Donaldson v Broomby (1982) A Crim R 160. Reference was also made to the test adopted by Smart AJ in R v Car (2002) NSWSC 194.

In further argument, reliance was had to R v Cornwell (2006) NSWCCA 116. The observation of Howie J referred to as were those of Hall J in Director of Public Prosecutions v AM (2006) NSWSC 438. The presiding Magistrate found that the decision to arrest the accused was entirely motivated by expediency. His Honour further found that the evidence obtained in consequence of the impropriety and was inadmissible. The Magistrate also was not satisfied that a prima facie case existed in relation to the charge of assault occasioning actual bodily harm and assault and all charges were dismissed. An application for costs was granted in favour of the accused.