In this matter Greg Walsh acted for DC.
DC was charged with 12 offences including installed device to film others, use carriage service to harass, film person in private act, sexual intercourse without consent x 2.
On 4 May 2015 an incident occurred between the Accused and his wife at their former matrimonial home. An argument had occurred in which DC had discovered messages on his wife’s phone including a specific reference to her male friend’s penis.
In the course of the argument DC’s wife sought to wrestle the mobile phone from him and he threw his wife’s mobile phone out the front door of the house hoping this would cause her to leave the house and he could shut the door and call Police.
As a result of this incident the parties separated. There was no complaint by DC’s wife to Police at that time.
On 15 June 2015 DC was to leave Sydney to Europe where he had professional commitments in the course of his business. He and his former wife had engaged Lawyers arising from their family law dispute. DC was departing for overseas for two months. His wife wanted to move back into the matrimonial home to facilitate renovations and care for their pet dogs.
DC, who was living in the former matrimonial home since separation, used the lounge room to house his work inventory. These records were most important to him. On 14 June 2015, DC purchased from Dick Smith a Belkin security device and installed it in the lounge room of the former matrimonial home. This device operated on the basis of movement or change of light. It recorded video / audio online and these images were stored. ‘Still’ images were sent from the video recorder to DC’s Gmail account.
On 15 June 2015 DC was at his home and had received SMS messages from his then wife. She attended the former matrimonial home and knocked on the door and waited for DC to answer it. She operated her key to the front door and pushed the door slightly open and then DC opened the door and the pet dogs, which were with DC, ran towards her.
According to the Complainant DC grabbed her and started to kiss her and pushed her up against the wall between the study and the bathroom. This according to the Complainant occurred immediately upon her having entered the front door of the home. The Complainant alleged that the Accused told her to take her skirt and stockings off which she did and attempted anal penetration from behind while she was facing the wall. According to the Complainant she tried to push the Accused away and he forcefully had vaginal intercourse with her from behind. According to the Complainant the Accused asked her to sit on him and led her to the lounge room where he had sex with her again. According to the Complainant, after the incident on the lounge she was dazed, naked and frozen. She said she had to go to work.
When the Complainant got to her car she sent a message to the Accused “to have a safe flight”.
On 19 June 2015 the Complainant attended a Police Station and reported the matter to Police and alleged that the Accused had hit her and forced her to engage in sexual intercourse with him without her consent. The Accused was leaving the country the next day.
The Accused departed Sydney for overseas and received further messages on 16, 17 and 18 June 2015. On 15 June 2015 the Complainant left messages with the Accused conveying to him kisses, winks and “LOL ‘s”. At no time was there any allegation made by the Complainant against the Accused or any reference to any alleged physical or sexual violence.
On 22 September 2015 the Accused was arrested upon his return from overseas at Sydney Airport.
In the Brief of Evidence there were four digital photographs of netcam footage from the Belkin camera.
At the time when the Accused was arrested at Sydney Airport, his laptop, mobile phone, iPad, iPod and hard drive were seized by arresting Police. He provided Police with security access codes. In the Brief of Evidence was a screen shot of the Accused’s Gmail account taken on a mobile phone device.
It was the Accused’s case that the Complainant arrived at the former matrimonial home shortly after 12:20pm on 15 June 2015. The Belkin images recorded the acts of sexual intercourse which had clearly occurred entirely with the Complainant’s consent. The Complainant was in fact at the former matrimonial home for a period of 42 minutes before the first incident occurred which was completely contrary to her assertion that as soon as she arrived she was assaulted by the Accused at the front door. The Belkin images included the act of sexual intercourse in the lounge room. The Complainant got on top of the Accused on the lounge and it was his case that the act was consensual.
The Accused was refused bail by Police despite the fact that he had no prior criminal history at all and was a successful professional man in his business. He was in custody for a period of 34 days until strict conditional bail was granted.
Greg Walsh represented DC and it was apparent that investigating Police and the Solicitor of the ODPP were oblivious to the importance of the Belkin images including not only what was depicted but there sequence and timing.
In the course of the matter Greg Walsh disclosed all of the Belkin images and provided Police and the office of the DPP with a schedule of those images including their timing and sequence.
A Subpoena was issued to Police to produce all relevant investigation records including those that had been created and maintained electronically. NSW Police are required to maintain contemporaneous electronic records in any major Police investigation. This case, which involved allegations of sexual intercourse without consent, was clearly a major investigation. The electronic recording of steps taken in an investigation is an important protection, not only for Police and Complainants, but also accused persons and the Community in the context of ensuring the integrity of any Police investigation.
The Police produced certain documents but not any electronic investigation notes which are normally recorded in accordance with standard Police practice. There was produced email communications between the officer in charge of the investigation and the Complainant. Those communications referred to the existence of the Accused having Gmail accounts and accessing those accounts. A specific Gmail account was specified by the Complainant to investigating Police. Further, the Complainant’s brother discovered the security camera which had been installed to protect the Accused’s business records whilst he was overseas and this was the subject of correspondence between the lawyers acting in the family law dispute whilst the Accused was overseas. Therefore the Complainant had to know, not only the existence of the security camera but also the images generated by it. she clearly told the officer in charge of the investigation to access the Accused’s Gmail accounts and nominated a specific Gmail account concerned.
Greg Walsh made an application under the Criminal Procedure Act seeking to establish special reasons why in the interest of justice the Complainant ought to be cross examined. The application was vigorously opposed and the Magistrate declined to make an order requiring the Complainant to be cross examined as to the various topics set out in the application.
The Accused was committed to trial and that trial commenced at the District Court Sydney on 8 May 2017. The trial concluded on 18 May 2017 when the jury acquitted the Accused of all of the major counts against him. He had pleaded guilty on the first day of the trial to damaging the Complainant’s phone and emailing a sexually explicit picture of the Complainant which she in fact had sent some time earlier. Judge Mark Williams dismissed the two charges without recording a conviction.
Greg Walsh then made an application for JC’s costs which was granted by his Honour Judge Williams. His Honour said “the Prosecution failed to take into account cogent and consistent objective evidence that backed up the man ‘s claim that the sex was the subject of the rape charge was in fact consensual.”