Monthly Archive September 2001

Stanoevski v The Queen (2001) HCA 4

Greg Walsh represented a successful applicant in relation to leave to appeal to the High Court of Australia and appeal heard by the High Court of Australia on 5 September 2000. The case dealt with the issue of judicial discretion to allow cross-examination of an accused on alleged past misdeeds not directly related to facts and issues and whether the discretion to allow cross examination miscarried. The High Court unanimously held that the trial judge’s discretion had miscarried and quashed the conviction and ordered a new trial.

Chan v Minister for Justice and Customs (2001) FCA 170

In this matter Greg Walsh represented the applicant in respect of an interlocutory application seeking the stay of a s.23 surrender warrant pending the finalisation of the proceedings. The basis of the application, inter alia, was that the Applicant was HIV positive and had been in detention pursuant to a warrant issued under s.19 of the Extradition Act since about June 2000. Mr Chan had been HIV positive for about 13 years and medical evidence was to the effect that his health was very precarious and that his life expectancy would be severely compromised. Stone J granted the application and ordered a stay and released Mr Chan from custody pending finalisation of the proceedings.

Chan v Minister for Justice and Customs (2001) FCA 718

In this matter Greg Walsh represented the applicant seeking a review of the determination of the Minister for Justice’s decision under s22 of the Extradition Act that Mr Chan was to be surrendered to Hong Kong authorities. It was argued that the Ministers decision was an improper exercise of the power conferred by s22(2) of the Act in that the Minister failed to take into account relevant considerations. Those considerations were:

The increased significance of the Applicant for extradition, trial, and if convicted, a sentence ranging from 3.5 to 5 years given that he is HIV positive and has a life expectancy estimated at only 15 years; and;

Expert forensic documenting examination evidence, concluding that the signatures were allegedly forged by the Applicant, being the basis of the forgery charges giving rise to the extradition request may well be genuine.

Stone J dismissed the application and held, that in effect, the Minister for Justice had not failed to take into account material consideration.

R v Macdonald (2001)

Greg Walsh appeared as Counsel on behalf of Mr MacDonald, having represented him on a pro bono basis in respect of fraud charges.

Adams v State of NSW (2001)

Greg Walsh represented Mr Adams in a successful action for wrongful arrest, false imprisonment, and malicious prosecution in the District Court Sydney. The plaintiff was awarded $276,000 plus indemnity costs.

R v GK (2001) NSWCCA 413

In this matter Greg Walsh represented the respondent in respect of the submissions of two questions of law to the Court of Criminal Appeal under s5A of the Criminal Appeal Act 1912 (NSW). The questions arose out of the trial of GK on charges of sexual assault involving GK’s step-daughter. At the trial in September 1999, the Crown tried to prove that GK was the father of the complainant’s baby by tendering evidence of DNA testing. Objection was taken to the evidence under s137 of the Evidence Act 1995 (NSW).

Ford DCJ limited admissibility to evidence that the testing did not exclude the possibility of paternity. He refused to allow evidence of likelihood of the percentage of probability of paternity. GK was represented for trial in February 2000 before Moore DCJ and a jury. The Crown again sought to lead evidence of further DNA testing which has been carried out since the first trial. Moore DCJ conducted a voir dire in which experts called by the Crown give evidence about the interpretation of DNA testing.

Moore DCJ held that legal principles required for him “not to disturb exercises of discretion from that which was exercised by His Honour Judge Ford”. He ruled that “there should not be arithmetical figures put before the jury.” The second trial aborted and the third was conducted on the basis of the rulings in the second. The jury finding the Respondent not guilty.

The Court of Criminal Appeal determined the questions as follows:

1. Where a trial judge makes a discretionary ruling on the admissibility of certain evidence, is a trial judge at a subsequent trial following a favour by the first jury to agree on its verdict bound to follow that ruling with respect to the inadmissibility of that same evidence?

No.

2. Was his Honour Judge Moore in error in refusing to admit evidence of the probability, in numerical terms derived from DNA testing that GK was the father of the complainant’s child, on the basis that there was a real risk of unpaired prejudice to the accused?

Yes as paternity index statistics, No as to relative chance of paternity statistics.

R v PLV (2001)

Greg Walsh represented the appellant in the Court of Criminal Appeal arising from conviction and sentence in respect of historical sexual assault matters.

DPP v DA (2001)

Greg Walsh represented the defendant at Campbelltown Local Court in respect of a s48E Application and a subsequent committal in relation to counts of sexual intercourse before Mr4 D Pierce L.C.M. The defendant was discharged.

son & Anor v State of NSW (2001) NSWSC 869

In this matter, Greg Walsh acted for the plaintiffs in an action against the State of New South Wales alleging negligence and breach of duty of care. The case raised issues involving welfare of children, claims of nervous distress, psychiatric injury, personal and financial loss as a result of the allegations, responsibilitie4s of the Director-General and departmental officers, allegations of negligence against the Director-General and departmental officers investigating, reporting and acting in allegations – with a duty owed to parents and grandparents by the Director-General and Departmental officers in investigating, reporting and acting on allegations of child abuse.

Wilson & Anor v State of NSW (2001) NSWSC 1165

Greg Walsh acted for the plaintiffs in this action and successfully sought amendments to the pleadings in relation to an act of malicious prosecution and abuse of process generally.

R v Murre (2001) NSWCCA 286

In this matter Greg Walsh represented the appellant in the New South Wales Court of Criminal Appeal which considered the effect of the delay of complaint and the adequacy of direction of the jury by the trial judge.

The charge against the appellant was one of sexual assault and was alleged to have occurred approximately some 25 years after the event. The Court of Criminal Appeal upheld the appeal and quashed the conviction.