Monthly Archive September 2006

Keys v West [2006] NSWSC 136

In this matter Greg Walsh appeared for the defendant in a summons brought by the Commonwealth Director of Public Prosecutions contending that an order made by Mr Flack, Magistrate, on 9 October 2003 at the Liverpool Local Court discharging the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth) be set aside.

The background to the matter was that Mr Flack ordered that the defendant be discharged pursuant to s19B(1)(d) of the Crimes Act 1914 and to be of good behaviour for a period of eighteen months.

It was contended by the Commonwealth Director of Public Prosecutions that the sentence imposed by the learned Magistrate was not available at law because the defendant had been convicted in the Local Court in her absence on 31 March 2000. That conviction had not been annulled due to the fact that the defendant was not aware that the conviction had been recorded until a warrant for her arrest was issued some three years after the recording of the ex-parte conviction on 31 March 2000.

Hall J concluded that the conviction made and recorded by the Bankstown Local Court on 31 March 2000 constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, his Honour found that the determination did not contitute a conviction in the sense of a final disposition of the proceedings. See Maxwell v The Queen (1995-96) 184 CLR 501; Griffiths v The Queen (1977) 137 CLR 293; Kinney v Green (1992) 29 NSWLR 137; Kopuz v District Court of NSW(1992) 28 NSWLR 232; Mulcahy v Clark (1991) Tas. R. 115; Cobiac v Liddy (1969) 119 CLR 257; Della Patrona v DPP (Cth) (No 2) (1993) 38 NSWLR 257; Application by the Attorney General under s37 of the Crime (Sentencing) Procedure Act for a Guideline judgment concerning the offence of High Range prescribed Concentration of alcohol under s.9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (no 3 of 2002) [2004] 51 NSWLR 305.

Accordingly his Honour found that there was no conviction within the meaning of that term and that s19B of the Crimes Act 1914 (Cth). It was therefore open to Mr Flack on 9 October 2003 at the Liverpool Local Court to exercise the power to discharge the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth).

Maloney v New Zealand [2006]

In this matter Greg Walsh appeared for the applicants who had successfully resisted an application for extradition by New Zealand.

It was argued that costs were discretionary and notwithstanding the fact that the applicants had successfully resisted extradition, they were not entitled to their costs. Madgwick J observed that s43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide and unstructured discretion. His Honour referred to the decision in Latoudis v Casey (1990) 170 CLR 534 in which the High Court had considered the discretion in relation to the prosecution for a summary criminal offence where the Defendant had succeeded. The majority of the High Court had emphasised the compensatory nature of a costs order and the inadequacy, in a criminal law context, with the fact that the charge was laid in the public interest and that the informant acted reasonably in laying the charge as a reason to deprive the successful defendant with a costs order; per Mason CJ at 544; Toohey J at 563 and McHugh J at 569.

Madgwick J ordered New Zealand to pay the applicant’s costs.

Alcorn v Regina [2006] NSWCCA 209

In this matter Greg Walsh acted for Brian Dean Alcorn, a solicitor who had formerly been in the employ of Marsdens Solicitors. On 6 September 2005, Mr. Alcorn was sentenced by his Honour Judge Black for six offences to which he pleaded guilty. Two of the offences were under s300(2) of the Crimes Act of knowingly use a false instrument and four offences under s249(1)(b) of the Crimes Act of corruptly receiving a benefit as an agent.

The offences under s300(2) of the Crimes Act involved Mr Alcorn using a false instrument, being a statutory declaration, purportedly signed by certain persons knowing it to be flashed with intent to induce an officer of the Office of State Revenue to accept the instrument as genuine and thereby obtain monies.

Each of the offences under s249B(1)(b) of the Crimes Act occurred in circumstances whereby Mr Alcorn, as the agent of Marsdens Law Group, of which he was a partner, had corruptly received from a man named Stumer, a signed but otherwise blank cheque on the understanding that the applicant could complete the cheque in his favour for a certain sum. There was tendered before the sentencing Judge, an agreed statement of facts, which to a large extent related to a fraudulent scheme of which Mr Alcorn was not a party. The sentencing Judge in effect made findings that Mr Alcorn was that of a principal in the fraudulent scheme.

It was argued in the Court of Criminal Appeal that the learned sentencing Judge had fallen into error in categorising the appellant’s objective criminality as a principal in the fraud involving the co-offenders. The Court unanimously agreed that the sentencing judge did err in the way in which he assessed the objective criminality of the applicant.

At paragraph [57] James J found that the learned sentencing judge’s comments about the objective criminality of the applicant were not supported and were otherwise inconsistent with the agreed facts. Significantly, the applicant only became aware on 7 April 2002 as to the receipt of the secret commissions. The presentation of false declarations to the Office of State Revenue could not have been “part and parcel of lending of a false colour to transactions to enable money to be extradited from investors.” Those statutory declarations were presented to the Office of State Revenue on 17 June 2002, after the applicant had come to a realisation that he had been duped.

James J further considered the approach of the learned sentencing judge to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. At paragraph [60] his Honour found that the learned sentencing Judge had seriously contravened the sentencing principles stated by the High Court in Pearce. The Court referred to the judgment of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67-68.

An impermissible approach to sentences for multiple offences was “to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges.” Such a sentence cannot be an appropriate sentence for any of the individual offences. This was precisely the approach adopted by the sentencing Judge. Further section 44 of the Crimes (Sentencing Procedure) Act had no particular relevance to the sentencing for multiple offences.

The Court made orders granting leave to appeal against sentences and allowed the appeal against sentence. The sentences of Judge Black of 6 September 2005 were quashed and the applicant was re-sentenced in respect of the various offences. The longest of those sentences was that of imprisonment expiring on 6 September 2006.

Law Society of NSW v Dwyer [2006] NSWADT 247

In this matter Greg Walsh appeared for Bronwyn Ann Dwyer, a solicitor, who was the subject of an application that she was guilty of professional misconduct.

The application was based upon two grounds namely that the solicitor failed to inform a Mr Reed, the complainant, that the Court had dismissed proceedings in which he was the plaintiff, because of inactivity; and secondly, she had misled or attempted to mislead the Law Society.

The history of the matter was referred to at length in the judgment of the Administrative Decisions Tribunal handed down on 17 August 2006. The Tribunal consisting of C Vass, Judicial Member; J Currie, Judicial Member; and A O’Neill, Non-Judicial Member heard evidence as to the circumstances in which the solicitor was asked by a partner at her firm, namely Back Schwartz Vaughan, Solicitors, to deal with a notice issued from the Supreme Court in relation to a defamation matter. That notice was pursuant to Part 32A of the Supreme Court Rules.

The articles that gave rise to the action in defamation had been published as long ago as 20 December 1986. The client had instructed Back Schwartz Vaughan in March 1987. These were separate proceedings instituted in October 1987 arising from two publications. One of these matters was settled as long ago as 18 August 1994 by way of a Deed of Settlement and Notice of Discontinuance. The parties to the Deed were the client and the author of the article from a newspaper that had published the article.

Ms Dwyer who had previously not had the carriage of the matter, nor until 1997 had she been employed by the solicitors, was asked on 18 July 2000 to deal with the notice pursuant to Part 32A of the Supreme Court Rules. Ms Dwyer wrote a letter on 19 July 2000 informing the client of the receipt of the Notice and seeking further instructions.

Thereafter the client communicated with the firm of Solicitors that he in effect wished to proceed with the matter and an amount of $2,000.00 was paid on account of costs. On 13 September 2000, the clients matter was dismissed by the Registrar in Chambers. In the latter part of 2000, the solicitor maintained that she had spoken to the client on 2 separate occasions. It was her honestly held belief that this was the position. In 2002 the client attended the solicitor’s office and Ms Dwyer informed him that the matter had been dismissed. She was then made the subject of a complaint and it was her responses to the Law Society that in effect gave rise to the second and more serious ground of the application.

In the course of the hearing, the Tribunal was taken to the Statement by Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227 where it was observed:

“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”

In the course of submissions, Ms Dwyer’s position was put in these terms:

“The problem that she has, as a legal practitioner and a human being, is that she does have a recollection of that phone call telling Mr Reed that the matter has been dismissed. Memory, as we all know, is not as if a photograph was taken of some event. It is a reconstructive process.”

The Tribunal administered a public reprimand to the solicitor and ordered that she pay the costs of the Counsel of the Law Society of New South Wales.

A v State of NSW & Ors (HCA) (6 and 7 September 2006)

In this matter Greg Walsh represented the appellant, A, following up on the grant of special leave on 10 February 2006.

The appellant brought proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the second respondent, the second respondent’s employer (the first respondent) and another police officer. This followed the dismissal of two charges of homosexual intercourse against him under s78H of the Crimes Act 1900 (NSW). The trial judge found that the claim of malicious prosecution was established against the first and second respondents in respect of one charge only. (The first respondent’s liability was based upon its vicarious liability as the second respondent’s employer). His Honour however dismissed the rest of the appellant’s claims.

The appellant appealed against the dismissal of the other claim for malicious prosecution. He also appealed against the dismissal of the claims for false imprisonment, false arrest and abuse of process. The appellant further appealed against various components of the award of damages. The first and second respondent cross-appealed, seeking a verdict on both claims of malicious prosecution.

In determining whether the respondents had acted without reasonable and probable cause in laying the charges, the trial judge applied the test stated by Jordan CJ in Mitchell v John Heine & Son Ltd (“Mitchell”). At the outset of the appeal however, the Court raised the issue of whether Jordan CJ’s statement was contrary to those made by this Court in Sharp v Biggs (“Sharpe”) and Commonwealth Life Assurance Society Ltd v Brain. One of the main issues upon the appeal therefore was the identification of the proper test to apply in such cases.

On 2 September 2005 the Court of Appeal (Beazley JA, with whom Mason P and Pearlman JA agreed) held that an accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause to succeed in an action for malicious prosecution. They also found that a prosecutor will act without reasonable probable cause if they lacked an honest and reasonable belief that charging a person was justified. In reaching these conclusions their Honours followed Sharp as opposed to Mitchell. The Court of Appeal further held that a prosecutor will “honestly and reasonably believe” that charging a person is justified if the evidence would lead a person or ordinary caution and prudence to conclude that it was warranted. Their Honours held however that a prosecutor need not actually believe that an accused is guilty. It is sufficient that they honestly and reasonably believed that there was a proper case to put before a Court.

The Court of Appeal further held that malice will be proved if an accused can show that a prosecutor was motivated by spite, ill-will or by improper motives towards the accused. This could include succumbing to pressure from bureaucratic superiors to lay a charge. In this case however there were no improper motives.

The pressure to charge the appellant existed because there was a “prima facie case” against him.

The grounds of appeal include:

  • The Court of Appeal erred in determining the appeal and cross-appeal by formulating and applying an incorrect test for determining the absence of reasonable cause in a case of malicious prosecution.
  • The Court of Appeal erred in finding that the appellant had not established absence of reasonable and probably cause to lay the charge in respect of D.
  • The Court of Appeal erred in finding that a reasonable prosecutor, exercising ‘prudence and judgment’ would have been justified in laying the charge in respect of C
  • The Court of Appeal erred in finding that malice had not been established in respect of charging C and D.

On 21 March 2007 the High Court unanimously upheld the appeal by A, represented by Greg Walsh, in respect of his claim for malicious prosecution.

Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution the High Court held today.

A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12 and 10 year old step-sons, D and C, when they were aged 8 and 9 respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The Magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him.

A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros has told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation, Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from the Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C.

A appealed to the High Court which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominantly purpose of the prosecutor in brining the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probably cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probably cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.