Monthly Archive September 2004

A v State of NSW (NSWDC, Unreported, 3 February 2004)

In this matter Greg Walsh represented a successful plaintiff in an action for wrongful arrest, false imprisonment and malicious prosecution arising from charges that he had sexually assaulted his two step-sons. The charges against A were dismissed at a committal hearing and A was successful in his action against the State of New South Wales and the first defendant, a detective.

Zaravinos v State of NSW; State of NSW & Ors v Zaravinos [2004] NSWCA 320

In this matter, Greg Walsh represented Mr Zaravinos in respect of an action against the State of New South Wales for false arrest and false imprisonment. Mr Zaravinos had attended a police station by appointment for an interview and was arrested successfully by two police on different but related charges, interviewed, charged, fingerprinted, photographed, bailed and released. The prosecutions were after several adjournments discontinued. At first instance the District Court judge found no reasonable grounds for arrest, noting “the case has all the hallmarks of heavy handed and officious use of arbitrary power” and awarded the plaintiff damages.

An appeal was made by both parties to the New South Wales Court of Appeal and significant issues relating to the law of arrest was determined in Mr Zaravinos’ favour.

At paragraph 39, Bryson JA said:

“The time at which Mr Zaravinos was arrested, sooner after 5pm on a Saturday afternoon, was probably close to the nadir of availability of Magistrates and authorised Justices, and also of lawyers able to give advice to persons under arrest. Although authorised Justices are available at a small number of Courts on Sunday, there was really no rational prospect of Mr Zaravinos’ areests ending in anything other than his being granted police bail later that night; there was not imaginably reasons why, with his passport available to be surrendered, a Bail Sergeant would decide to keep him in custody until he could be taken before an authorised Justice on the following day, or Monday. The Trial Judge did not accept the contention that there was a “minor fear” that Mr Zaravinos might abscond but if there were, it was dealt with as fully as it reasonably could be when his passport was brought to the police station by 6pm. As the trial judge rejected the evidence given by Superintendent Jenkins and Ms Horan about their reasons for effecting arrests, conclusions to the effect that the arrests were heavy handed and officious uses of arbitrary power, and that arrests and detention were wrongful, were reasonably open to the Trial Judge and His Honour could hardly find otherwise”.

Keys v West [2004] NSWSC883

In this matter Greg Walsh acted for a Mrs West who had been discharged pursuant to s19B(1)(d) of the Crimes Act, 1914. This provision provided that in effect she was discharged without receiving a conviction.

The police informant made an application to the Supreme Court seeking to set aside the decision of the Magistrate. It was argued that the Magistrate did not have the power, as a matter of law, to discharge Mrs West pursuant to the provisions of the Crimes Act, 1914 (Cth).

The Supreme Court in dealing with the application made a number of observations as to whether the Magistrate did have the power to deal with the matters as he did in the Local Court. It was argued on behalf of Mrs West, that the initial recording of a conviction was done ex parte and clearly she did not even known that she had been charged, let alone convicted. It was argued that ‘conviction’ amounted to no more than a mere recording of guilt. Such that the Magistrate was not precluded in dealing with the matter in the manner which he did. (See Kinney v Green [1992] 29 NSWLR 137).

Law Society of NSW v Meredith [2004] NSWADT 212

In this matter Greg Walsh represented Mr Meredith in respect of an application by the Law Society of New South Wales that his name be removed from the Role of Legal Practitioners. Mr Meredith conceded that he had been guilty of professional misconduct in that he had misappropriated monies from his clients as a legal practitioner some years beforehand. His name was removed from the Role.