Cases

Regina v XY

XY is a married woman who tragically had been diagnosed and treated for schizophrenia for many years. She is married to a loving and caring husband. The have one child who is an adult and a successful professional person. XY was originally diagnosed with schizophrenia in the early 1990’s. She was admitted to a hospital for a lengthy period of time and treated after her discharge with anti-psychotic medication. She continued taking medication from the early 1990’s until about 2015.

As she had been complying with her medication for so many years she decided most regrettably to cease taking her medication. She thought that she could function well without her medication. In the latter part of 2016 and in 2017 her condition commenced to deteriorate. She became disorientated and had irrational beliefs that people were trying to hurt her. She became obsessed with paranoid beliefs of being poisoned. Whatever she viewed on television to her was reality.

XY’s Husband and their Daughter were concerned about her behaviour and encouraged her to go and see her General Practitioner. Her local Doctor had been treating her for many years and recently retired and the Husband and Daughter thought that XY had returned to see her General Practitioner to be prescribed appropriate medication.

On the day of the incident XY had a delusional belief that her husband had been in some way sexually abusing their daughter. This was a delusional belief as no such history had occurred. XY in a psychotic episode accused her Husband of sexually abusing their Daughter and attacked him with a knife attempting to sever his penis. As a result he was seriously injured.

Neighbours intervened and Police were called and XY was arrested and taken to a psychiatric hospital where she remained for some months.

Greg Walsh was asked to help XY and he did so. She apart from her psychiatric illness had been an extremely devoted Wife and Mother and had worked very hard over many years to help her Husband but over recent times was suffering from a serious illness. She otherwise had a very loving and caring relationship with her Husband. There were concerns about bail and in particular Police insisted that XY had no contact with her Husband. This was problematic because they had otherwise, such a close and loving relationship. However, the incident concerned was an extremely serious one and she had been charged with very serious offences, including wounding with intent.

The psychiatric hospital concerned provided wonderful treatment and support to XY and there was established a community treatment program. Appropriate accommodation was organised for XY and a community nurse initially saw her on a frequent basis and she attended also readily upon her treating psychiatrist and a psychologist and general practitioner. She maintained strict compliance with her medication and accepted that she should never have stopped taking her medication and that this was the triggering problem for her predicament.

An application to vary her bail was heard at the Downing Centre Local Court before Magistrate Atkinson. Police opposed any contact between XY and her Husband. The Husband had attended Court and whilst in Court they instinctively embraced and could not be separated. The bail conditions were varied so as to permit XY to have supervised contact with her Husband and the supervisor was her Daughter.

The Defence of mental illness was raised and the matter went to Trial. Greg Walsh appeared for XY at Trial and she was examined by a Forensic Psychiatrist on behalf of the Prosecution and also Dr Olav Nielssen, who gave evidence for her. The diagnosis of schizophrenia was agreed upon and that the schizophrenia was the cause of her conduct in attacking her Husband. XY was found not guilty on the grounds of mental illness by Acting Judge Graham of the District Court and a number of orders were made requiring her to accept appropriate treatment and to comply with supervision in the community.

XY has continued to strictly adhere to her treatment regime and is now living back with her Husband whom she is providing support to.

AB v Law Society of NSW [2018] NSWSC1975 Davies J

In this matter Greg Walsh acted for AB in a very important case against the Law Society of NSW.

AB at the time of instructing Mr Walsh was a Solicitor with Firm 1. Her supervising partner was CD. That supervising partner on 3 March 2016 requested that she pop in and see her and when AB did so a piece of paper was handed to AB consisting firstly of CD’s signature and that of EF, CD’s former partner and the father of a child XY. AB witnessed CD’s signature as a person over the age of 18 years and not related to CD. She neither witnessed it as a Solicitor or in her capacity as a Solicitor. CD then asked her can you witness EF’s signature as well. She did so. AB said to CD “Has EF been in to sign this?” CD said “Yes I met him this morning”. AB had no reason not to believe what her supervising partner told her and signed the documents.

The next day AB overheard a phone call made by CD with a person likely to have been EF. As a result of the matters that she heard in the call CD said to AB that he had received a call from the Passport Office about the Passport Application. AB became suspicious at that point that EF may not have signed the application because CD had said to EF on the phone that she was taking XY to New York.

Davies J set out in his judgement at paras [9-14] further evidence in respect of the circumstances of the execution of the Passport Application and the results of investigation conducted as to what had occurred in such circumstances.

On 1 September 2016 AB contacted the Law Society and was referred to the Senior Solicitors Scheme and thus represented by Greg Walsh. Mr Walsh obtained instructions from AB and on 17 November 2016 sent a letter to the Law Society making full disclosure of the matters on behalf of AB.

Davies J thereafter sets out in some detail the extensive exchange of correspondence between Greg Walsh and the Law Society. Greg Walsh asserted that the Law Society had not afforded procedural fairness to his client and had not disclosed documentation consisting of two statutory declarations of CD to the Law Society. Mr Walsh on behalf of AB asserted that the full statutory declaration provided to the Law Society by CD be provided to him on behalf of AB. Justice Davies refers to Mr Walsh’s assertions in his judgement at paras [21-23]. On 6 July 2018 Ms Foord on behalf of the Law Society replied to Mr Walsh stating “You have been provided with everything that is relevant to the Society ‘s investigation of the complaint about AB. Those parts of CD ‘s statutory declaration that do not relate to your client or to the complaint about her will not be provided to you”.

At para [24] Justice Davies made this finding “In fact, the Law Society’s statement in that letter was untrue. Not only did the Law Society have the statutory declaration of CD from which it had quoted, but it had another statutory declaration, made at an earlier time, with answers to questions which had been asked of CD by the Law Society. That only became clear when Mr Walsh saw the report from the Bar Association mentioned earlier. That statutory declaration was not made available until a subpoena and a notice to produce was issued to the Law Society shortly before the present hearing. The other statutory declaration has never been made available to the plaintiff”.

Justice Davies set out in his judgement at [25-26] the result of the investigation made by The NSW Bar Association to grant AB a Practising Certificate as a Barrister. Mr Walsh on her behalf had made full disclosure about the complaint to the Law Society. The Bar Association had been abled by way of notice issued to the Law Society to obtain the relevant statutory declaration.

At [27] His Honour notes that on 12 September 2017 Mr Walsh wrote to the Law Society indicating that he had now learnt that there were in fact two Statutory Declarations. The First Statutory Declaration of CD contained significant admissions which are directly relevant to the allegations of Professional Misconduct against AB. At [28] the Law Society did not reply. Greg Walsh wrote again on 16 October 2017. In that letter he asserted “…[l]t is submitted that the decision to conceal from AB and myself as her solicitor the contents of the First Statutory Declaration of CD provided to the Law Society on 21 April 2017 is utterly contrary to the obligations of procedural fairness/natural justice. …”.

Ms Foord on behalf of the Law Society responded in a letter of 24 October 2017 again asserting that everything relevant had been provided to Mr Walsh on behalf of AB.

At [30] Justice Davies made this finding “It was again not true that all relevant material had been provided to AB. The Law Society had still not made available the statutory declaration from CD in its possession. The letter of 20 June 2017 which first disclosed the existence of a statutory declaration by CD did not mention the date of that statutory declaration. It could not, therefore, be inferred from the references in the letter of 24 October 2017 that what was being spoken of was a second statutory declaration by CD”.

On 1 February 2018 the Law Society resolved to refer that AB to the Administrative Tribunal

Occupational Division on the basis that she had falsely witnessed the signature of EF on a

Passport Application of about 3 March 2016. It provided reasons for its decision which were then set out by His Honour at [40].

Throughout the ordeal suffered by AB, Mr Walsh had obtained reports from her treating psychiatrist Dr David Sturrock. These set out the tragic circumstances in which she suffered from a major depressive illness: shock, depressed mood, nightmares, insomnia, anxiety, panic attacks, tearfulness, nausea, dry mouth and poor concentration and suicidal ideation. The response by the Law Society to such overwhelming evidence was simply to assert that it in no way was responsible having regard to its conduct in delaying the investigation and concealing evidence that was clearly relevant to the allegations made against AB. Tragically, AB attempted to take her own life on three separate occasions.

Justice Davies ultimately held for the reasons set out in his judgement that the Law Society had failed to accord procedural fairness to her and further had failed to provide adequate reasons in both the decisions of 14 December 2017 and I February 2018 meaning the decisions could not stand. His Honour further found that the reasons for the decision of I February 2018 disclosed jurisdictional error.

The Law Society then despite His Honour reserving his decision resolved to commence proceedings in the tribunal and did so on 1 August 2018. His Honour made an order in the nature of certiorari quashing the decisions of the Law Society made on 14 December 2017 and 1 February 2018.

This judgement of Justice Davies is a fundamental one in respect of the proper manner in which the Law Society of NSW ought to have investigated the allegations of Professional Misconduct against AB. She, somewhat remarkably, is still alive to continue assisting the community as a member of the NSW Bar Association.

R v SDD [2018] OCA 280

In this matter Greg Walsh appeared as Counsel for SDD (Appellant) in the Supreme Court at Queensland, Court of Appeal.

The Court was constituted by Sofronoff P and Gotterson JA and Boddice J.

The Appellant’s appeal arose from his conviction by a jury on counts 5 and 6 relating to viewing the Complainant naked in the shower. He had been acquitted of 11 other counts upon his trial at the District Court at Maryborough, such verdict being determined on 9 February 2018.

Greg Walsh represented the Appellant at trial and also in the appeal to the Supreme Court at Queensland, Court of Appeal. The basis of the appeal against conviction on these counts was that the verdicts were, in all the circumstances, unreasonable and or inconsistent.

Greg Walsh submitted that the verdicts to the jury on counts 5 and 6 are unreasonable on the ground that the Complainant obtain treatment from a psychologist for a significant period of time in respect of sensitive issues but raised no complaint with the psychologist at that time. It was in the context of the end of the marital relationship between the Appellant and the Complainant’s mother which also involved an incident of physical violence involving the Complainant’s brother. It was argued that steps taken by the Appellant and his wife to limit access to the Complainant’s iPhone and internet did not amount to a sexual interest by the Appellant and the Complainant. The Appellant was genuinely concerned for the Complainant’s welfare and he otherwise had a good relationship with her. Further, that in the context of the household, there were practical jokes played on each other by members of the family.

An important issue was that there was an internal lock on the bathroom door and such evidence was given by the Appellant and two other witnesses, as well as the photographs.

It was argued on behalf of the Appellant that the verdicts of not guilty in respect of all the other counts involved a rejection of the Complainant’s credit. As such, the verdicts on counts 5 and 6 were inconsistent with the verdicts of not guilty on the remaining counts.

Boddice J with whom Sofronoff P and Gotterson JA agreed, rejected the contention on behalf of the Appellant that there was an unreasonable verdict of an inconsistent verdict. The Complainant’s account as to the two bathroom incidents, the subject of verdicts of guilty, were supported by the mother’s evidence. His Honour placed particular evidence on there being no context as to counts 5 and 6 as to the playing of a joke by the Appellant on the Complainant.

In respect of inconsistent verdicts, his Honour referred to Holmes J (as the Chief Justice then was ) in R v Smillie [2002] QCA 341 at [28]; (2002) 134 A Crim R 100.

The Court granted leave to adduce the further evidence and the appeal to be dismissed.

R v SDD — District Court Maryborough

Greg Walsh represented SDD in respect of 13 counts of indecent dealing and 5 counts of observations of recordings in breach of privacy. The trial commenced at the District Court at Maryborough on Monday 5 February 2018 and concluded Friday 9 February 2018.

The Accused had pleaded not guilty to counts 1 to 13.

The Complainant had given a statement to Police on 12 March 2016 and was admitted into evidence under section 93A of the Evidence Act. The Complainant gave further evidence and was cross-examined in a pre-recorded hearing in June 2017. It was admitted under section 21 AK of the Evidence Act.

The Complainant was 14 years of age at the time of the alleged offending. The Accused was her step-father. The Accused and the Complainant and her mother and other children resided at Archer Drive, Hervey Bay. There were a number of counts in which the Accused walked into the bathroom, whilst the Complainant was having a shower and threw a cup of cold water over the top of the shower cubicle. The Accused laughed and walked out and the Complainant’s mother yelled out “she is a teenager you shouldn’t be doing that.” There was evidence that the Complainant performed practical jokes upon the Accused in the family home. Another incident involved the Accused throwing a jug of water over the Complainant while she was having a shower. The Complainant also had thrown water over the Accused when he was having a shower.

A number of the counts were alleged to have occurred when the Complainant requested that the Accused give her a massage. There was evidence that she had suffered from physical injuries and had for instance, a problem with her lower back. A number of massages were carried out in the presence of the Complainant’s mother. It was the Accused’s case that these massages were simply that and did not involve any inappropriate touching constituting indecent assaults. The Complainant gave evidence in respect of some of the incidents which were consistent with the Accused having given her a massage.

An important issue in the trial was that the Accused and the Complainant’s mother separated in difficult circumstances. Post separation, the Accused still communicated with the Complainant and she was quite positive in her contact communications with him.

The Complainant had over a number of years, attended upon a psychologist but there had been no complaint to that psychologist until after the Complainant’s parent’s marriage had broken down. The Complainant gave evidence that she did ask for massages as she regarded them as being harmless. It was only after a trip in a truck, driven by the Accused in January 2016, the Complainant first made a complaint to the psychologist.

There was evidence in the trial that the Complainant had been involved in a sexual relationship with a boy who lived nearby when the family was at Aldershot. The sexual relationship between the Complainant and this boy had come to the notice of the Accused and his then wife. This had been the subject of referral to the psychologist and discussions had taken place between the respective families of the boy, the Accused and his wife, to provide support to the Complainant and to convey to her inappropriate aspects of her relationship with the boy because of her age and other subjective difficulties. The Accused actually attended upon the psychologist and actively sought to identify relevant issues and to assist the Complainant and her mother in dealing with these. It was in this context that the Accused admitted that he had a number of conversations with the Complainant which were no more than he being genuinely concerned about her welfare. This was especially so in the context of the conversation in the truck when the Accused was giving a lift to the Complainant to a party which she wanted to attend.

The Accused denied ever going into the bathroom at Aldershot to look at the Complainant when she was in the shower. In mid-2009, a lock was put on the inside of the bathroom by the builders when the house was built by the Accused and his wife.

On 9 February 2018, the Jury acquitted the Accused on counts 1, 2, 3, 4, 7, 8, 9, 10, 11 and 13 and convicted him on counts 5 and 6 relating to viewing the Complainant naked in the shower at Aldershot.

Regina v PB

In May 2017, Greg Walsh represented PB (The Accused), in respect of 16 counts of sexual offences contrary to section 61M(1), 66F(6)(b), 61J(l) Crimes Act 1900.

The Complainant was cognitively impaired.

The Complainant lived at an address in very close proximity to the Accused. The families of the Complainant and the Accused were well known to each other and had socialised at their respective homes over many years. He allegations commenced at a time just prior to the Complainant’s birthday and involved alleged sexual assaults being carried out by the Accused in his home in close proximity to his wife. There were further allegations on the occasions of a birthday at a restaurant in Sydney. There were a number of counts alleged to have occurred at the Complainant’s home.

The Complainant suffered from a number of conditions including cognitive impairment, deficits in mental functioning and an intellectual disability.

There were a number of experts who gave evidence in the trial for both the Crown and the Defence such in respect of the intellectual functioning of the Complainant.

There were a number of pre-trial applications made by Greg Walsh to the Trial Judge, McLennan DCJ, including that relating to Tendency Evidence. His Honour ruled that only one incident, which was constituted by a count, could give rise to Tendency Evidence. There were other arguments as to Sexual Assault Communications Privilege in which certain records were contended to have substantial probative value upon the trial of the Accused. The trial took three (3) weeks and the Accused was called to give evidence together with a number of other Defence witnesses. Alibi evidence was relied upon in respect of some counts.

The Accused was acquitted in respect of each count.

R v Chute (No 4) [2018] ACTSC 259

On 11 September 2018, Mossop J delivered judgement as to the application for a permanent stay of the special hearing by John Chute. Greg Walsh appeared on behalf of the Accused. The history of the matter is set out in a number of judgments of the Supreme Court; R v Chute [2017] ACTSC 246; R v Chute (No 2) [2017] ACTSC 347; R v Chute (No 3) [2017] ACTSC 409.

On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone. On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury. On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay.

The basis of the application for a stay was previously set out in the judgement of Mossop J at [2] in R v Chute (No 2) [2017] ACTSC 347.

The history of the Accused was set out in Mr Walsh’s Affidavit of 10 October 2017.3

Mossop J at [22] set out the medical conditions suffered by the Accused. A further Affidavit of 7 November 2017 of Greg Walsh was referred to at length, including the opinion of a forensic psychiatrist, Dr John Roberts [27] – [32].

His Honour also referred to further Affidavits of Greg Walsh of 10 November 2017, 20 November 2017 and 1 December 2017.

His Honour referred to the High Court decision in Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 AT [52] – [53]. In Subramaniam v The Queen, the Applicant had relied upon her mental health preventing her from being able to give reliable testimony and that further prosecution of the proceedings could have resulted in a serious worsening of her mental health.

Greg Walsh also relied upon the decision of McDonald v The Queen [2016] VSCA 304; 263

A Crim R 356 at [57]. The factor that gave rise to error as found by the Victorian Court of Appeal in that case, was the trial judge had erred in putting aside consideration the likely outcome of the proceedings if the Applicant was found to have committed the offences [58].

Mossop J at [63] referred to the factor of unfairness and oppression requiring consideration of the community’s interest in bringing matters to trial. His Honour observed that it would only be in extreme circumstances where an abuse of process is established, to determine whether it is appropriate that any particular charge against any particular defendant proceeds: R v Smith [1995] VicRp 2; [1995] 1 VR 10 at [25].

His Honour placed particular emphasis on the descending judgment of Ferguson JA and the feature that the legislature had seen fit to establish process by which persons who were unfit to stand trial were the subject of a special hearing. His Honour ultimately made a finding that “to assess the question of whether unfairness is such as to amount to an abuse of process without recognition of the inherent features of that process would involve the subversion of the legislative scheme.”

Mossop J was also referred by Mr Walsh to the decision of TS v R [2014] NSWCCA 174 at [65]. In that case, Bellew J (with whom Leeming JA and Adams J agreed) found that the primary judge had erred because the appropriate question was whether or not a remedy was warranted in the particular circumstances of the applicant. At [56]-[57], Bellew J observed:

“The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.”

In addition, the overall effect of her Honour’s reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.”

A further fact in that case, was the fundamental unreliability of the Complainant’s evidence.  

Greg Walsh also relied upon the judgment of Arrivoli v R [2017] NSWDC 112.

That was a case in which Buscombe DCJ granted permanent stay in the context of historical sexual abuse by a member of the Catholic clergy who was 94 years of age at the time of the hearing of the application for a stay.

Another important issue that Mossop J addressed, was the requirement of the Accused to attend a special hearing. Greg Walsh submitted that having regard to the physical and psychological condition of the Accused, it was not probable that he had the capacity to attend, which was in accordance with the expert evidence of Dr Roberts and also the other medical evidence relied upon as referred to in the Walsh Affidavit. Section 316(1), provides that the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. Section 316(6) provides that “unless the Supreme Court otherwise orders, ” the accused shall have legal representation at a special hearing.

Mossop J referred to Lipohar v The Queen [1999] HCA 65; 200 CLR 485 at [69], in which the Court found there is “no trial in absentia at common law in the ordinary course ” His Honour referred to various specific statutory provisions, which authorise trials to proceed in the absence of the Accused. His Honour referred to Jenkins v Whittington [2017] NTSC 65 at [89]- [92] as to the circumstances in which a trial can be conducted in the absence of an Accused.

At [87], his Honour compared the Accused’s position to:

“how would the fairness of a trial be advanced by compelling someone who was delusional and uncomprehending of the process to be present during the trial? In this case, the situation is that the accused is unfit because he is unable to follow or adequately process the proceedings. In circumstances where no relevant forensic interest of the accused would be advanced by his presence at the hearing, the presence of a person who was unfit to plead does not appear to me to be an essential requirement of the special hearing process, notwithstanding the general principle in s 316(1 ) of the Crimes Act.”

His Honour ultimately found that there was no suggested reason as to the Accused being present including for an arraignment at the special hearing. His Honour dismissed the application for a permanent stay.

R v Chute (No 3) [2017] ACTSC

On 17 November 2017, Mossop J gave reasons for his conclusion that the fact that the procedure in s.316(2) of the Crimes Act 1900 (ACT) had been overlooked, did not avoid the obligation to determine whether or not the accused was capable of making an election to have a special hearing conducted as a trial by judge alone: see R v Chute (No 2) [2017] ACTSC 347. Greg Walsh appeared as Counsel for John Chute. An Affidavit of Mr Walsh dated 20 November 2017 was relied upon in the further hearing of the matter.

A forensic psychiatrist, Dr John Albert Roberts, gave evidence and his Honour had set out the psychiatrist’s findings in respect of an examination of the Accused at the age care facility where he resided.

Dr Roberts was of the opinion that the Accused was not capable, by virtue of his mental state, of appreciating matters that he would need to consider in coming to a decision in relation to the need for him to elect a judge alone trial or a trial by judge and jury.

Mossop J at [10], concluded that the evidence of Dr Roberts was consistent with the evidence of Mr Walsh, arising with his dealings with the Accused shortly before he was seen by Dr Roberts. His Honour was satisfied that the Accused is incapable of making an election to have his special hearing conducted by judge alone. His Honour then made a direction to the ACT Civil and Administrative Tribunal requiring the appointment of a guardian to consider whether to make an election.

R v Chute (No 2) [2017] ACTSC 347

In this matter Greg Walsh acted for Chute.

On 24 July 2017, Murrell CJ found that John Chute was unfit to plead to an indictment containing 16 counts; R v Chute [2017] ACTSC 246.

On 12 October 2017, the Accused sought an order that there be a permanent stay of the special hearing. Mossop J in R v Chute (No 2) [2017] ACTSC 347 at [2] set out the grounds of the application on behalf of the Accused. Greg Walsh appeared as Counsel for the Accused in respect of the hearing of the application.

On 15 and 16 November 2017, argument took place in relation to the application for a stay. In the course of the argument, it became apparent that following this decision of Murrell CJ, neither of the parties nor the Court had given consideration to the operation of s.316(2) Crimes Act. That permits a person who has been found unfit to plead to elect, either directly or via a guardian to have a special hearing conducted as a trial by judge alone as opposed to a trial by jury.

Mossop J considered the interrelationship between s.316(1)(2) Crimes Act and section 68A & B of the Supreme Court Act 1933 (ACT).

His Honour concluded that there were three reasons why s.68B does not qualify s.316 so as to preclude the making of election by or on behalf of a person who has been found unfit to plead in relation to “excluded offences “ within the meaning of s.68B.

In these circumstances, Mossop J did not determine the application for a stay and heard further submissions as to how to proceed in relation to the operation of s.316(2).


The Canbera Times – Ex-Marist brother John ‘Kostka’ Chute found unfit to plead to child sex abuse charges

Shalhoub v State of New South Wales [2017] NSWDC 363

Greg Walsh acted for Andrew Shalhoub, who was successful in his District Court Action Shalhoub v State of New South Wales [2017] NSWDC 363.

In this matter Greg Walsh acted for Andrew Shalhoub who on the 7th of June 2015 was 19 years of age. He was with a friend, Mustapha Neffati, at a gathering at a home in southern Sydney on the evening of Sunday 7 June 2015. At about 2:00am on Monday morning, a public holiday, Mr Nefffati contacted his brother Wassim Neffati, to come and collect him and Mr Shalhoub. When Wassim arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub was in the rear of the car. As they proceeded from the cul-de-sac onto David Road at about 2:20am, Police activated flashing lights and Mr Neffati pulled over. Mr Shalhoub, Wassim and Mustapha were in instructed by Police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times including blows to his head whilst he lay faced down on the ground, He was handcuffed, searched and eventually informed that he was under arrest. He was informed of his arrest at about 2:40am, allegedly for stalking a Police Officer. When the Police thereafter realized that he could not have been involved in any stalking, he remained under arrest and at 3:05am taken to a Police Station arriving at 3:25am. A police interview was conducted in connection with an investigation of “resist arrest”, no charges were laid and Mr Shalhoub was released from police custody later that morning at about 7:40am.

Wassim Neffati, had been awaken at about 2:00am to collect his brother and Mr Shalhoub. He proceeded behind a private motor vehicle driven by an off duty female officer who had just left Revesby Police Station in close proximity to where Wassim and his brother lived with their mother. Two officers namely, Troy Skinner and Matthew Poulton, also left Revesby Police Station at the end of their shifts. They observed the grey Lexus driven by Wassim Neffati make a U-turn and proceed behind the private vehicle known by them to be driven by the female officer. The private vehicle, followed by the Lexus, proceeded in a direct route to a nearby main road, Davies Road, where each car turned right, to the south. Skinner and Poulton formed the viewed that the Lexus was following and stalking the private vehicle driven by the off duty officer and telephoned the Police Station to report the suspected stalking. Other Police responded.

At about 3km from the Police Station, the private vehicle took an exit from Davies Road onto Clancy Street. Skinner saw a car on Clancy Street and assumed it was the private vehicle containing the female off duty officer that had taken the exit. The Lexus did not follow but continued a further 7km along Davies Road, Alfords Point Road which it became New Illawarra Road and ultimately to the cul-de-sac off David Road. Skinner and Poulton discussed the fact that the Lexus vehicle had stopped travelling behind the private vehicle. However, this factual observation by Skinner and Poulton was not relayed not any other Police Officer. Skinner and Poulton gave information to assist other on duty Police Officers to locate the grey Lexus.

The action was heard over 13 days by P Taylor SC DCJ. A critical issue that arose was the suspicion as to s.99(1) Law Enforcement (Powers and Responsibilities) Act 2002.

The issues

The State of New South Wales denied any assault and pleaded a lawful arrest. It was clear the Lexus had voluntarily pulled over in response to Police flashing lights. Whether this could constitute an arrest did not arise, as in submissions, the State’s case was that the Police had reasonable grounds to suspect that the Plaintiff had committed the offence of stalking for the purposes of s.99 of LEPRA. The people who conducted the physical arrest of the Plaintiff were the Constables who removed him from the vehicle. According to the State of New South Wales, the process began when they stopped the car. However “… but obviously at some point the actual arrest begins and that arrest begins when the Officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them”. The direction for the arrest was given by Mr Love and other Police Officers. Thus his Honour was not required to decide whether a direction to get out of the car constitutes an arrest. See State of New South Wales v Exton [2017] NSWCA 294.

Sub-section 99(2) of LEPRA, entitles an arresting Police Offcer to rely on the appropriate direction from another Police Officer. However the directing officer is precluded from giving a direction unless he or she satisfies the requirements of s.99(1). In the event that the directing officer does not satisfy the requirements of s.99(l), the directing officer (rather than the arresting officer) is liable as if the directing officer had committed the unlawful arrest.

Taylor DCJ held that the lawfulness of the exercise of the statutory power must depend upon the statutory conditions governing its exercise.

His Honour examined in detail the evidence of a number of Police Officers namely, Senior Constable Skinner, Senior Constable Poulton, Senior Constable Hurney, Constable Dunn, Constable Muir and Leading Senior Constable Love.

In respect of suspicion of stalking based on reasonable grounds, his Honour found at [21] that stalking itself is insufficient to establish the offence.

In respect of Senior Constable Skinner and Poulton, his Honour at [25] found that officers Skinner and Poulton were not the arresting officers nor did either of them direct the arrest. The arrest was affected by Constables Dunn and Muir and assisted by Senior Constable Hurney.

At [31] his Honour found that Officer Hurney was not the arresting officer. Officer Dunn was informed by an off-duty police officer was being followed home. Officer Dunn traveled with Officer Love and Senior Constable Casey to the scene with lights and sirens on. His Honour found that obviously Dunn was involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed, Officer Muir handcuffed Mr Shalhoub and Officer Dunn conducted a body search [32].

At [39] his Honour observed that Officer Dunn did not give evidence of holding any belief or suspicion that the occupants of the Lexus was stalking or had the requisite intent. Thus, he could not infer this belief or suspicion. At the time Officer Dunn got Shalhoub out of the car, he was told to do so and he had no “intention in his own mind” as to what he would once Mr Shalhoub was out of the car. Therefore Officer Dunn removed Mr Shalhoub from the car because he was told to do so by Officer Love. His Honour at [41] found that the removal of Mr Shalhoub by Officer Dunn forcefully from the car, was not based on a direction formally to arrest, detain, subdue or restrain Mr Shalhoub, nor on a reasonable based suspicion that he needed to do that under s.99(l) or (2) of LEPRA.

At [43] his Honour noted that there is an important distinction between a direction to “get them out of the car” and a direction to “arrest them” See State of New South Wales v Exton [2017] NSWCA 294.

In respect of Officer Muir, his Honour did not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground [49].

His Honour found that Officer Dunn and Officer Muir, forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Offcer Love. Mr Shalhoub was there after brought to the ground. Officer Dunn and Offcer Muir gave evidence of the direction by Officer Love, but on the direction found by his Honour, the arrest of Mr Shalhoub could not be justified by it.

His Honour at [56] found that the telephone call “concerning a suspect vehicle that may have been following a Police Officer” was not persuasive but Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s. 13 of the Crimes P VA Act.

At [59] his Honour made findings that:

  1. Neither Officer Muir and Dunn were directed to arrest Mr Shalhoub; and
  2. None of the Officers Love, Muir or Dunn suspected on reasonable grounds that Mr Shalhoub had committed an offence.

At [63] his Honour made a finding that no officer gave evidence concerning the reasonable necessity for the arrest.

The State of New South Wales pleaded that the specified reason for the arrest under s.99(l)(b) of LEPRA was “to stop the person committing or repeating the offence or committing another offence”. However no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence.

At [68] his Honour found that there was no obligation on a Plaintiff to plead to a defense. See Rule 14.27 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

The State argued that Mr Shalhoub in the Amended Statement of Claim had pleaded that at the time of the arrest that he, the Plaintiff, was not informed of the reason for his arrest despite asking Police on a number of occasions as to the reason why he was being arrested. According to the State, this limited the issue of unlawfulness of the arrest as to whether or not the Plaintiff was informed of the reason for his arrest, His Honour rejected this argument.

Informed of arrest as soon as reasonably practicable

A Police Officer who arrests a person but fails to give the frue reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587; State of NSW v McCarthy [201 5] NSWCA 153 at [78]; ss.201 and 202 ofLEPRA.

At [81] his Honour found that no explanation was given by Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car.

At [87] his Honour found that the Police approached the Lexus and that it had pulled over, was stationary and the occupants remained in the car. His Honour could see no reason why the occupants could not be informed at that time of the reason for them being stopped and being directed to get out of the car. The suspicion that they had recently been following a Police Officer from near Revesby Police Station and down Davies Road could have been readily and briefly stated.

At [89] an issue arose as to whether a failure to provide as soon as reasonably practicable a reason for the arrest could retrospectively render prior conduct unlawful. In the State of NSW v McCarthy [2015] NSWCA 153 at [78] and [79] it was found that “the lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information”.

Was reasonable force used

Reasonable force is no defence to the Plaintiffs claim if the arrest was otherwise unlawful. If contrary to his Honour’s findings, the arrest was lawful, the Police were still obliged to use reasonable force (see LEPRA, ss230, 231).

At [92] his Honour found that Officer Dunn struck the Plaintiff on the head on a number of occasions whilst Mr Shalhoub was lying face down on the ground. Officer Dunn described this as a “hammer strike “. Officer Dunn asserted that he did not intend to hit Mr Shalhoub on the side of the head. Officer Dunn noticed that Mr Shalhoub had blood on his mouth and some swelling on the right side of his face. His Honour found the evidence of Dunn to be difficult to accept.

The record of interview and photographs of the Plaintiff demonstrated observable facial and head injuries which came out of the incident. Officer Dunn was not a small man and he admitted to striking Mr Shalhoub on the head a “few times”, “at least twice”.

Officer Dunn conducted a personal search of Mr Shalhoub, after he was handcuffed. Mr Shalhoub gave evidence that the Police Officer felt his private parts, he said to Officer Dunn when Officer Dunn said “mate what’s there? ” “it’s my penis. “ Officer Dunn then undid his pants and started “taking my penis out and grabbed it and I started screaming at him and then he stopped it”.

His Honour referred to the record of interview and the fact that Officer Muir was present and saw everything. In the record of interview he said “that wasn’t me Andrew …yeah that wasn’t me Andrew”. Such an acknowledgment bore that the allegations made by the Plaintiff were truthful in the record of interview.

At [117] his Honour accepted that the Plaintiff was searched about his groin area, that his belt was removed and the top button of his jeans was undone and that Officer Dunn squeezed his penis “whilst scrunching his pockets”. His Honour made a finding that he was not satisfied of the manner of the search that was conducted involved only such force as was reasonable necessary.

Was the period of detention justified?

His Honour found that there was no basis to continue the Plaintiff’s arrest after 3:05am, by which time the Police were aware that he was not in the Lexus at the time of the suspected following of the off duty police officer.

Damages

His Honour gave lengthy reasons in respect of damages and referred to Zaravinos v The State of New South Wales (2004) 62 NSWLR 58 [2004] NSWCA 320 (another case in which Mr Walsh represented the Plaintiff). In Zaravinos the detention was 3 hours and 23 minutes of detention which was found to be “unnecessary, high handed, humiliating and unnecessarily long”.  His Honour awarded the following compensation:

  • Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages $35,000.00
  • Compensatory damages for assault and battery including aggravated damages $30,000.00
  • Exemplary damages $ 15,000.00
  • Interest $2,018.63
  • Total $82,018.63

 

 

 

 

 

 

                                                                                                     

Joanne Young v Josephine Smith – Contempt [2017] NSWSC 1443

In this matter Greg Walsh acted for Joanne Young (Plantiff)

JUDGMENT

1 On 2 August 2016, the Contemnor, Ms Josephine Aapa Smith was found guilty of contempt of Court. The Court, as presently constituted, held that on 2 February 2015 the Contemnor dealt with property located at Wharf B, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (‘the Property”), by encumbering it by means of a mortgage in favour of Westpac Banking Corporation (“Westpac”) in circumstances where the Court had, to the knowledge of the Contemnor, restrained such conduct in relation to that property.

2 Having heard the parties on what, if any, sentence to impose, it falls on the Court to sentence the Contemnor.

3 The orders breached were orders of the Court, as earlier stated, restraining any dealing in the Property. The conduct giving rise to the contempt is described in the Reasons for Judgment, published by the Court and giving rise to the finding of guilt: Young v Smith (No 3) [2016] NSWSC 1051 (“the Judgment on Guilt’).

4 It is unnecessary to recite, in full, the somewhat complicated issues associated with the finding of guilt. It is sufficient, for present purposes, to reiterate that proceedings were commenced by the plaintiff, Mrs Joanne Elizabeth Young, initially against her former husband, Mr Leslie James Young, and, as a consequence of the initial proceedings, freezing orders issued against the husband and his subsequent partner, the Contemnor in these proceedings.

5 In the Judgment on Guilt, the Court set out a history of the proceedings (see [17] of that judgment and following). That history is relevant in understanding the objective seriousness of the matter with which the Court is now concerned and is in the following terms:

[17] The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.
[18] At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).
[19] In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.
[20] The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.
[21] The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.
[22] In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed In or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.
[23] The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million.
[24] On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance. Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.
[25] On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.
[26] On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.
[27] On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.
[28] On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property. until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.
[29] On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application. [Footnotes omitted.]

6 On 4 September 2014, the Court issued orders, the effect of which was to continue the orders issued by the Court on 29 August 2014 against both Mr Young and the Contemnor in these proceedings. On 2 February 2015, the Contemnor, in contravention of the said orders, entered into a mortgage over the Property and was advanced $5.8 million by Westpac.

7 The Contemnor breached the orders, issued by the Court on 29 August 2014 and continued by the Court on 4 September 2014, and that breach gives rise to the sentence to be imposed for contempt of Court.

8 On 15 April 2015, the Court (constituted by Sackar J) finalised the substantive proceedings, dealing with the ownership of property, and on 5 May 2015 issued orders giving effect to those reasons. The orders were altered on 6 June 2015 and the ultimate effect of the orders was that, subject to a registered mortgage, the Contemnor held the contentious property subject to a one half share on trust for Mr Young but not so as to interfere with any interest of the plaintiff in these proceedings.

Punishment for contempt

9 The power of the Supreme Court of New South Wales to punish for contempt arises from its status as a superior court of record. Contempt is a common law offence, punishment for which is an inherent power of a superior court of record. It is unnecessary here to deal with punishment in the face of Court to which the foregoing statements do not relate.

10 Pursuant to the powers described in the Supreme Court Rules 1970 (“SCR”), and in particular Pt 55 r 13, the Court may impose a penalty for contempt on an individual, being committal to a correctional centre or fine or both. Further, the Court may issue orders for punishment on terms, including suspension or part suspension and impose conditions for good behaviour and the like.

11 There are two types of contempt: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, the breach of an order or undertaking. However, where that breach is deliberate, being a deliberate defiance or a contumacious breach, contempt that is otherwise civil is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3.

12 Further, the Court of Appeal has determined that contumacious, wilful and deliberate disobedience of a Court order may be characterised as both civil and criminal conduct: see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA; and Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway, supra.

13 Even “mere” civil contempt affects the administration of justice. The purpose of imposing punishment for wilful disobedience of a court order is to discipline the offender and to vindicate the authority of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112].

14 The process of sentencing involves a sentencing judge arriving at and imposing a sentence appropriate to the gravity of the offence that was committed (objective seriousness) and to the circumstances of the offender who committed it (subjective circumstances), taking into account the purposes of sentencing. Those purposes include punishment; protection of society; personal and public deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) and Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14:
“The purposes overlap and none of them can be considered in Isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

15 The process, often referred to as intuitive synthesis, is one jn which the Court considers each of the factors as part of the objective or subjective circumstances (and in some situations both) to arrive at a result which seeks to achieve each of the purposes best.

16 In dealing with the objective and subjective circumstances of the offence and offender, the Court may have regard to the provisions of s 21A of the Act, although most of those criteria are factors to which a sentencing Court would, even in the absence of s 21A of the Act, have regard. Ultimately, the Court has a wide range of sentences that it may impose for contempt of Court: NCR Australia v Credit Connection [2005] NSWSC 1118.

17 The range of sentences includes imprisonment, periodic detention, home detention, community service orders, good behaviour bonds, dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention program, deferral of sentence, a suspended sentence, a fine, and the making of a non-association or a place-restriction order. Each of those is a potential punishment on Contemnors. The legislature has conferred on the Court the power to impose such punishment: In some instances, there are restrictions on the imposition of any such sentence.

18 In determining the sentence to be imposed, the Court is to consider the nature of the contempt committed: Commissioner for Fair Trading v Rixon (No 3)
[2014] NSWSC 1279, per Garling J. Those circumstances include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender’s culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed and an apology proffered; and the financial and personal circumstances of the offender when a fine is being sought: see also Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.

The nature and circumstances of the contempt

19 The circumstances immediately surrounding the contempt have been described above. So too has the background arising from the relationship between Ms Young, on the one hand, and Mr Young and the Contemnor, Ms Smith, on the other hand.

20 As at the time of the sentencing proceedings Ms Smith and Mr Young lived in the Property, a lavish apartment in Pyrmont, which, subject to the orders of the Court (Sackar J) is presently owned by Ms Smith as joint tenant with the trustee in bankruptcy of Mr Young. It is those premises that is the subject of a mortgage to Westpac, granted by Ms Smith, as a result of which Westpac provided a $5.8 million loan.

21 The monies that constituted the loan were provided to a corporate entity of which Ms Smith is the sole director and shareholder.

22 On the material before the Court the calculated estimate of the market value of the Property is between $4.6 million and $6.9 million (Affidavit Angela Skocic, 19 October 2016). I consider that calculation more reliable than the “as is” value of $4 million (Affidavit Krista Emma MacPherson at [4] and KEM-I thereto).

23 The plaintiff is owed approximately $3 million, pursuant to orders of this Court of 23 April 2013, by Mr Young. The orders followed the malicious prosecution proceedings reference to which is provided above: Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330. Those monies have not been paid. Mr Young transferred 50%, being his share in the Pyrmont premises to Ms Smith and, as earlier stated, rendered himself bankrupt.

24 The money received as a result of the mortgage of the relevant premises was utilised for a business venture by the Contemnor through her company, Smith & Smith Investments Pty Ltd. Westpac appointed receivers and sold the hotel purchase with those funds. Apparently, the sale returned an insufficient amount to satisfy the mortgage and Westpac had not released Ms Smith in respect of the mortgage on the Pyrmont premises.

25 The hotel was sold in November 2015 for approximately $6 million, which while in excess of the original maximum facility with Westpac of $5.8 million, represented a shortfall of approximately $800,000, presumably as a result of the cost of sale and enforcement and interest (Affidavit Krista Emma MacPherson at [11]-[12]).

26 As was made clear in the Judgment on Guilt, the Contemnor was well aware that the Court had restrained her from dealing with the property in question.

27 Ms Smith’s awareness of the conditions imposed upon her by the Court is evidenced by the application made by Ms Smith that the orders of the Court be replaced by an undertaking on her part not to deal with the Property. Notwithstanding that knowledge, and in spite of it, Ms Smith obtained a financial advantage by deliberately dealing with the Property in contravention of the orders of the Court. She did so, at (east in part, for the purpose of obtaining a financial advantage. It seems, although it is unnecessary to determine this question, that part of the rationale for Ms Smith’s conduct also related to malice against Ms Young, either on her own part or reflecting the malice and state of mind of Mr Young.

28 The contempt is a very serious one. It is a deliberate and contumacious breach of orders issued for the protection of a party and, in the process, dealing with property that belonged to the plaintiff in these proceedings.

29 Further, the overwhelming inference is that the entire scheme was designed to thwart the plaintiffs attempts to obtain from Mr Young the damages that the Court had awarded. It involved the circumvention of a number of orders of the Court. It involved the transfer of the Property so as to ensure that Mr Young had no assets in his name to which the Judgment debt could attach and it involved a deliberate breach of orders of the Court for the purpose of obtaining a business or commercial advantage.

30 I consider the contempt a serious one and to be categorised as both civil and criminal contempt. The conduct is well above the mid-range in objective seriousness for a contempt. Further, the semi-public disregard and disobedience of orders of the Court is a significant undermining of the authority of the Court and affects the administration of justice.

Subjective circumstances

31 The Contemnor has relied upon a number of exhibits, some of which have been referred to above. Ms MacPherson exhibited to her Affidavit the valuation on an “as is” value basis of the Property and media coverage relating to Ms Smith’s conduct and/or the Judgment on Guilt, together with other Judgments in the wider justiciable controversy. Part of the material upon which the Contemnor relies is an issue or issues relating to her health.

32 Ms Smith’s health issues are, on the evidence adduced in the proceedings, considerable. I have been provided a report by clinical psychotherapist, Ms Odelia Carmon and a report by Professor Frederick Ehrlich OAM. There are also reports from Dr Jerry Greenfield, endocrinologist, Dr Michael Talbot, Dr Nesran Varol, Dr Julie Epstein, consultant physician, reports on imaging to various doctors and reports from her general practitioner, Dr Dror Schmuelly.

33 The Contemnor refers to the fact that she has no criminal history. Nor has she previously been charged with any criminal offence. The contempt proceedings are the first ever contact with a penalty or punishment proceedings before a court.

34 It is necessary to deal with the medical issues, although, in so doing, the Court will seek not to disclose unnecessarily matters that are and ought to remain confidential. Some disclosure is necessary. In or about May 2010, Ms Smith was diagnosed with a 1.5 cm meningioma which encased the carotid artery causing some deformity and elongation. There was some inferior extension, but otherwise the cerebral MRI showed no abnormalities. The meningioma was removed and by May 2015 there was no evidence of any recurrence and her brain had stable appearance and no recurrence.

35 In 2009 Ms Smith suffered from a neurological disorder and seizures seemingly related to a multisystem failure after a mosquito bite in South Africa in December 2005. A number of treatments were attempted, which were unsuccessful but, ultimately, she was treated with Nutropin which resulted in her being able, once more, to walk and to give up reliance on a wheelchair, as was previously the situation. She will continue to have balance problems and to use a walking stick.

36 A summary of the conditions suffered by Ms Smith is contained in the report of Dr Schmuelly of 6 February 2015, which forms part of Ex 2 in the proceedings.

37 Professor Ehrlich’s report of 28 September 2016 also forms part of Ex 2. He refers to the multisystem breakdown relating to a virus from the mosquito bite and also to the history given to him of three heart attacks, a kidney failure, lung failure and major neurological problems as a consequence of which she spent three years in a wheelchair.

38 Professor Ehrlich referred to the effect of these illnesses on her business ventures which she was required, during that period, to “sell … at a loss” and “her feelings when having to deal with distress sales”. He also referred to a series of family tragedies, with numerous deaths, having to attend funerals and cope with relationship problems.

39 At the time, according to the history given to Professor Ehrlich, she was consuming approximately 2 bottles of wine each day and a half a bottle of single malt whiskey.

40 The family tragedies seem to have affected Ms Smith more as a consequence of her place in the Samoan community and the fact that members of her family of origin were the founding fathers of the Samoan Congregational Church. She also fulfils major familial and cultural duties assigned to her by her family (Ex 3).

41 Professor Ehrlich suggests that Ms Smith was “unaware of the Court order which was issued whilst she was overseas” and that “she was not made aware of it on her return”. With respect to Professor Ehrlich, he may have been given that history but the history is inconsistent with the events in Court and in the precincts of the Court, including applications made by her through counsel which disclose a clear understanding of the nature of the restrictions imposed upon her.

42 Professor Ehrlich suggests that “her capacity for processing information and applying effective judgement must be considered to have been significantly impaired”. The report was not the subject of cross-examination and I accept that opinion.

43 Nevertheless, the opinion is based upon some assumptions of fact, which are not borne out. The Court has already referred to the awareness by Ms Smith of the orders issued and her understanding of the orders that Issued. Further, the breakdown in her relationship with Mr Young, to which Ms Smith referred Professor Ehrlich, either did not occur at the time or was not at all acrimonious. In evidence as Annexure A to the Affidavit of Angela Skocic of 20 October 2016 are photographs of Ms Smith with Mr Young taken and posted on Facebook at a time during which it was said their relationship had “broken down”.

44 The other issue to which reference needs to be made is the report of clinical psychotherapist, Ms Odelia Carmon. I will not detail the history recited by Ms Carmon. Ms Smith did not give evidence. Some of that history would require direct evidence for it to be taken into account as part of the early childhood of Ms Smith, particularly the allegations of abuse from the age of nine until the age of 22 years.

45 I accept that Ms Smith’s actions may result, at least in part, from a life filled with responsibilities to others and unfulfilled personal expectations and her need to become secure, independent and self-sufficient. do so without necessarily accepting the history that may have led to that.

46 I also accept a degree of cultural tension that defines Ms Smith’s self-image and causes problems with self-management. The report from Ms Carmon expresses the view that Ms Smith genuinely regrets her action in breaching her obligations to the Court. Unfortunately, that was not the subject of any evidence from Ms Smith and J have significant doubts as to the degree of Ms Smith’s remorse.

Consideration

47 The Court accepts that there are a number of subjective mitigating factors in determining an appropriate sentence. I accept that the Contemnor has had a significant medical and psycho-social history, involving a brain tumour and a number of other illnesses, some of which were caused by an unfortunate viral infection from and/or in reaction to a mosquito bite in Africa.

48 Ms Smith was 46 years of age at the time of the contempt, namely February 2015. As has been made clear earlier in these reasons, the Contemnor has not before been before a court and is entitled to the leniency of a first offender. accept, also, that there was some impairment to Ms Smith’s capacity for executive decision making on a rational basis around the time of the contempt.

49 I do not accept that the Contemnor and Mr Les Young had severed their relationship at the time of the contempt or very soon thereafter. I do accept that the Contemnor deliberately and contumaciously contravened the order of the Court prohibiting her from dealing with the Property, which she mortgaged in order to obtain a benefit of $5.8 million (or the use of the funds for business purposes). I also accept that the breach of the order was part of a wider plan the effect of which was intended to deprive Ms Young of enforcing other Court orders, cocooning the assets into the name of the Contemnor and away from Mr Young, and thereby seeking to prevent Ms Young from enforcing her judgments.

50 Further, the conduct of transferring the property from Mr Young to the Contemnor (and, in the case of the Contemnor, accepting that transfer) and mortgaging the property, was done without any notice to any person, in circumstances where Ms Smith was at that time before the Court. The transactions were deliberately concealed from the Court and Ms Smith allowed the proceedings to continue on a false premise, known to her and which she hid from others. Part of that process included misleading Westpac as to the position of the apartment and its history.

51 It is clear that the Contemnor was motivated, in part, by financial gain and probably as a matter of malice towards Ms Young. The former has been proved beyond reasonable doubt. The latter is disregarded because it has not been proved to that required standard. The contempt (and the larger financial arrangement of which it formed part) was otherwise performed for the benefit of Mr Young, her then partner.

52 As previously stated, an assessment of the objective seriousness of the offence puts it above the mid-range in seriousness and it is clear that the contempt offence was not, in the least, technical. It was a wilful, deliberate and contumacious contempt being an intentional disobedience involving a conscious defiance of the authority of the Court and a deliberate attempt to subvert the orders imposed upon her.

53 As a consequence Ms Smith’s intentional conduct also involves the knowing defiance of the Court’s order and authority and the sentencing must achieve a purpose that involves both general and specific deterrence.

54 The consequence of the mental and other medical conditions of the Contemnor render the general and specific deterrence less significant than it might otherwise have been and render the Contemnor Jess appropriate as an example in relation to general deterrence. Ms Smith’s behaviour was described as “surreptitious” by the Court (Young v Smith (No 2) [2015] NSWSC 1267 at [36]-[37]. However, some general and specific deterrence is required. The medical conditions of the Contemnor, including her restricted mobility, make prison a more onerous punishment.

55 Further, the fact that the business for which Ms Smith borrowed the money did not succeed is a matter wholly unrelated to the contempt. The money was borrowed for the purpose of making a profit. The mortgage was effected in order to gain security for the borrowed monies.

56 Notwithstanding the comments in the report of Ms Odelia Carmon, there has been no apology or public expression of contrition.

57 Moreover, the publicity occasioned in relation to the conduct of Ms Smith js not an extra curial punishment. It is the natural result of conduct by a person in utter defiance of the orders of a court. In the absence of the rule of law, we would all live in a state of chaos. Courts adjudicate the rights of the members of society as between themselves. It is not for a member of society to snub that adjudication for self-interest.

58 If the published material about the conduct of Ms Smith was defamatory, then Ms Smith would have a cause of action. I do not consider the publicity given to the conduct of Ms Smith or the Judgments of the Court concerning her conduct to be a form of extra curial punishment. Nor, in this case, do consider that it ameliorates the punishment that otherwise ought to be imposed.

59 As a consequence, the Court shall impose a penalty. I reiterate the comments made in relation to financial penalties where the motive is financial gain. Democracy, as we know it, depends upon the rule of law and the obedience of members of the community of the orders of the Court.

60 Moreover, I do not accept the submission, put on behalf of Ms Smith, that no damage or prejudice has been suffered by the plaintiff. The stress associated with litigation of this kind and the years of litigation leading to the orders that ultimately were made by the Court, involve a stress beyond the stress of winning or losing and beyond the stress associated with the requirement to meet legal costs to enforce rights that ought not have needed to be litigated.

61 Notwithstanding the subjective circumstances to which Ms Smith has pleaded in relation to her conduct, I consider, bearing in mind both the objective and subjective circumstances of the offence, that a custodial sentence is warranted. I also consider that the only proper disincentive to other persons seeking to obtain a profit by the deliberate defiance of Court orders is to impose a monetary penalty.

62 The Court makes the following orders:

(1) The Court records a conviction for the offence of contempt committed by Josephine Aapa Smith (“the Contemnor”);
(2) The Court sentences the Contemnor to a term of imprisonment of 6 months, fixed term. The Court suspends execution of the whole of the sentence for a period of 6 months and directs that the Contemnor be released from custody on condition that she enter into a good behaviour bond for the said period of 6 months. The sentence will commence on and from 25 October 2017;
(3) The Court imposes a fine on the Contemnor of $50,000, in addition to the foregoing sentence of imprisonment;
(4) The Contemnor shall pay the plaintiffs costs of and incidental to these proceedings on an indemnity basis;
(5) Any party who seeks a different or special order as to costs may apply within seven (7) days of the date of this Judgment by filing a submission with the Associate to his Honour Justice Rothman. Such submission shall be no more than three (3) pages in length. Any party affected by any such application may reply to said application by a submission of the same length within 7 days of receipt of the application.

**********

HUGHES v THE QUEEN [2017] HCA 20 (14 June 2017)

In this matter Greg Walsh acted for Robert Hughes, the Appellant.

The High Court, by majority, dismissed an appeal form a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. A majority of the High Court held that tendency evidence admitted against the Appellant was admissible under s.97(1) of the Evidence Act 1995 (NSW).

The Appellant was arraigned in the District Court of New South Wales on an indictment that charged him, in 1 1 counts, with sexual offences committed against five female children under the age of 16 years. The Complainants were aged between 6 and 15 years at the time of the offences. The acts charged in each count and the circumstances of their commission varied. The Prosecution gave notice that it would seek to adduce evidence from each Complainant and from other women as ‘tendency evidence’. The Prosecution identified the tendencies of the Appellant that it sought to prove as including, first, the Appellant having a sexual interest in female children under the age of 16 years and, secondly, the Appellant using his relationships to obtain access to female children in order to engage in sexual activities with them.

Section 97(1)(b) of the Evidence Act excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind (‘tendency evidence ‘), unless the Court thinks that the tendency evidence will have “significant probative value”. The Appellant, applying for an order for separate trials, challenged the admissibility of the tendency evidence on the basis that it lacked sufficient similarity to the charged conduct to have ‘significant probative value’. The trial judge held that the probative value of the tendency evidence was significant in circumstances in which the fact in issue in each count was whether the charged sexual conduct occurred, and so admitted the evidence. The jury returned verdicts of guilty on 10 counts. The Appellant appealed his convictions to the Court of Criminal Appeal, relevantly contending that tendency evidence did not possess ‘significant probative value’. The Court dismissed the appeal.

By grant of special leave, the Appellant appealed to the High Court. The Court held, by majority, that s.97(l) of the Evidence Act does not condition the admission of tendency evidence on the Court’s assessment of operative features of similarity between the tendency evidence and the conduct in issue. In cases where it is the occurrence of the offence charged that is in issue, the majority reasoned that evidence will likely have significant probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

The Court further held, by majority, that the tendency evidence adduced at the Appellant’s trial possessed ‘significant probative value’ in relation to each count for which it was

adduced. When considered together, the tendency evidence showed the Appellant’s tendency to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the Appellant’s conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal.

The Court further held by majority, that the tendency evidence adduced at the Appellant’s trial possessed ‘significant probative value’ in relation to each count for which it was adduced. When considered together, the tendency evidence showed the Appellant’s tendency to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the Appellant’s conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal.

The Queen v Adam Filippone [2016] NTS C67 (24 March 2017)

Greg Walsh acted for Adam Filippone (‘The Accused”) who was charged with murdering Peter Wayne Murphy (“The Deceased”) on 17 August 2008. In the alterative, he was charged with one count of assisting Gregory Alan Russell (“Russell”), who had committed the murder in order to enable Russell to escape prosecution. Russell committed suicide on 7 May 2010 and was never charged for the homicide.

The Deceased resided in Central Australia. He had for some time lived and worked in Yuendumu Community. In the six (6) weeks prior to his death he had been living in Alice Springs.

The Deceased went missing on or about 17 August 2008. The Crown case was that between August 2008 and May 2010 Adam Filippone and Russell had relocated to Queensland in late 2008. Prior to his suicide, Russell spoke to his then partner, Wendy Hassett, who recorded that conversation. Russell admitted killng the Deceased and said that “Wog” (Adam Filippone) was present and involvéd in the killing. He marked the map depicting where the murder took place and where the Deceased’s body could be found. Police then located the Deceased remains in a shallow grave.

The autopsy established that the Deceased suffered two bullet holes to the left side of his skull and blunt force trauma to his left cheek.

Adam Filippone was extradited to the Northem Territory from Queensland on 15 May 2010. According to Sergeant Richardson, who had taken over the “cold case” investigation against Adam Filippone, he the Accused had given a hypothetical scenario in which though not responsible for the murder was present when the Deceased was killed. That conversation was not recorded.

The Crown provided Notices under s.67 of the Evidence (National Uniform Legislation) Act (NT) (“UEA”) of the Crown’s intention to adduce hearsay evidence. Objection was taken to the admission of part of the evidence including the alleged verbal conversation on 15 May 2010 between Adam Filippone and Richardson.

In the course of voir dire, a number of crown witnesses gave evidence. These were Gemma Beattie, Peter Goodwin, Tamara Murphy, Wendy Hassett and Detective Sergeant David Richardson. Blokland J set out in her judgment the outline of facts giving rise to the issues to be determined on the voir dire (9-54).

The evidence disclosed that Tamara Murphy, the wife of the Deceased, had spoken to Russell on a number of occasions and was highly critical of the Deceased. She said to Russell “Somebody needs to bump him off but he was that much of a tightass, he only had a $100, 000 life insurance policy”. The Deceased told Tamara Murphy that it would cost $10,000 to “knock off” the Deceased.

On 18 June 2008 Russell handed Tamara Murphy a small silver hand gun wrapped in a shirt. She placed it in a safe in her bedroom. Her boyfriend, Adam Moore, and her son Lee Murphy both saw the pistol in that safe.

The Deceased was a heavy gambler and was also involved in drugs. Russell told others that the Deceased owed him money.

On 17 August 2008, at about 8:00am, Adam Filippone, Steve Williams, Rodney Mosley and Thomas Spence, started working at the Target project “topping” floors. At about 9:00am Russell received the firearm from Tamara Murphy. He told her that he was going to go to 17 Standley Crescent to do his washing. Her Honour then sets out in detail the facts as they unfolded as it were. On 17 August 2008 the Deceased asserted that he was working at the Target project from about 7:30am-8:00am until 5:30pm-6:00pm. He thus could not have accompanied Russell in picking him up from the Town and County Hotel and taking him approximately 90 odd kilometres to the Plenty Highway where he was assaulted and shot. Telstra records showed that there were no calls made by the Accused on his mobile phone between 12:02pm and 3: 14pm. According to Steve Williams the group worked half a day and they did not finish at the site until between 1:00pm and 2:00pm. The security guard on the site confirmed no workmen were present at the site when he inspected it at 2:00pm.

According to Leisa Ford, at about 1:30pm, she saw Russell’s vehicle travelling on the Stuart Highway and two other males in the front of the vehicle. She identified two of the males as Russell and Adam Filippone.

As her Honour set out in the judgment, Gemma Beattie and Wendy Hassett played active roles in respect of cleaning the possible murder weapon and it being buried in a shed floor at Wendy Hassett’s home.

The Crown’s case that the Accused and Russell were good mates and frequently had contact with each other.

Adam Filippone was arrested in Queensland on 1 1 May 2010 and extradited to Alice Springs. On the plane to Alice Springs, Detective Richardson alleged that he spoke to Adam Filippone, who in effect was present when the Deceased was killed by Russell.

Blokland J referred to Conway v The Queen [2000] FCA 461; (2000) 98 FCA 204 and the High Court decision in Sio v The Oueen [2016] HCA 32 at [68], [70] and [71].

Blokland J excluded a number of items in the hearsay Notices. In respect of the representations made by Russell to Wendy Hassett on or about 7 May 2010 that he, Russell, had killed the Deceased and that the Accused had helped him, her Honour said:

“Further, the way the recorded conversation commenced reeks of a setup or staged conversation, “Hassett: What happened? Tell me. I ‘m going through hell Greg… with… You fuckin gotta tell me what’s happened. Be honest. I know someone else was with you. What happened? Just tell me “.

Her Honour made a finding that Wendy Hassett had not satisfactorily explained why the conversation commenced in this manner. Her diary notes indicate detailed interactions with Police including a discussion to the effect that she may go to prison, that she knew Police had spoken to others including Adam Filippone and that she would help Police obtain a confession from Russell. Her Honour was not satisfied as to the reliability of the circumstances in which any of the representations against Adam Filippone were made. In fact her Honour found that the representations were made positively unreliable. Her Honour noted that in Sio it is not the truthfulness of the witness or the representation that this is the focus but rather the circumstance in which the representation is made.

In respect of the conversation between Sergeant Richardson and Adam Filippone, on 15 May 2010, her Honour rejected the admission of this conversation. The circumstances in which the alleged conversation purportedly took place were indeed extraordinary. Sergeant Richardson took no note of the alleged conversation in the plane between himself and Adam Filippone. According to Richardson he told Filippone that he would only record the conversation in an interview. The Accused told him that he wanted to speak to his Lawyer, Richardson arrived back in Alice Springs with the Accused on the afternoon of 15 May 2010. He made no note of the conversation (according to Richardson he was being fair as he could to the Accused). Richardson in the voir dire said that he was not relying on the conversation. He didn’t believe it was admissible. There was no record of him having told Detective Hamlyn about the conversation. At no time did he attempt to record an interview with the Accused.

Once they arrived in Alice Springs Adam Filippone was taken to the Alice Springs Watch House. There was no further attempt to obtain any record of the conversation on the plane which Richardson alleged that had taken place.

Sergeant Richardson did not attempt to use the evidence of the so called conversation at the bail hearing or committal hearing. He had every opportunity to do so. Sergeant Richardson gave evidence at the committal hearing against the Accused on Il October 2010. He gave no evidence of the conversation at the committal. The Accused was discharged at the conclusion of the committal proceedings. Sergeant Richardson did not tell the Prosecutor about the conversation as according to him he didn’t think it was admissible.

At the coronial inquest in April 2011 Sergeant Richardson gave no evidence of the conversation but was present when the Accused gave evidence. The Accused denied in his evidence he was present or involved in the killing. It was only at that time that Richardson reminded Counsel assisting the Coroner of the conversation in the aeroplane. He gave a note to Counsel assisting, on a piece of sticky paper, which can no longer be located. Sergeant Richardson made a statement on 27 August 2014 outlining the conversation. Her Honour referred to section 142(1) Police Administration Act (NT) that evidence of an admission by a suspect made to a Police Officer is not admissible as part of the prosecution case except in circumstances provided for in s 142(1)(a) and (b). that is The confession or admission will be admissible if, in the circumstances provided for in (a), the substance of the confession or admission is confirmed by the person concemed, and with respect to (a) and (b) the confirmation or admission was electronically recorded and that recording is available to be tendered. Admissions outside the scope of 142 (1) (a) and (b) will note be will not be admissible unless the Court exercises a discretion in favour of admission under s. 143. Her Honour rejected the admission of the conversation that was alleged to have taken place on the aeroplane.


NTNews – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court

News.com – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court