Monthly Archive September 2007

Turner v State of NSW & Anor [2007] NSWSC 1081

In this matter Greg Walsh acted for the plaintiff in proceedings against the State of New South Wales and the Director of Public Prosecutions. On 31 January 2000 the plaintiff was sexually assaulted by another police officer and she made a complaint to the police and that police officer was charged with her sexual assault. The offender was tried on three occasions and ultimately acquitted. Over the next four and a half years the plaintiff was the subject of multiple prosecutions initiated by the New South Wales police including an apprehended violence order proceedings. The prosecutions against her failed.

The plaintiff filed a statement of claim in which she sought damages for wrongful arrest and malicious prosecution. The State of New South Wales sought particulars and over a number of years further amended statements of claim were filed together with further requests and answers to particulars. On 25 January 2007 a further request for particulars was made by the Crown Solicitor’s Office requiring approximately 200 responses. They were provided on 15 March 2007.

The State of New South Wales filed a notice of motion seeking to strike out the amended statement of claim on the basis that matters pleaded are objectionable because they have a tendency to cause prejudice, embarrassment or delay in the proceedings or otherwise an abuse of process of the Court occurs; see Rule 14.28(1)(b) and (c) of the Uniform Procedure Rules.

Harrison J reviewed authorities in relation to the issue of particulars. His Honour referred to Hunt J in Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126 at 133 where his Honour observed:

“Their function is to simply relieve the other party if they need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded.”

His Honour also referred to A v New South Wales [2007] HCA 10 in which the High Court of Australia dealt with the question of what the plaintiff needs to prove to establish absence of reasonable probably cause. Harrison J referred to the observation of Hawkins J in Hicks v Faulkner at [85]:

“Because the question in any particular case is ultimately one of fact, little use for guidance is to be had from decisions and other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiries should have been made.”

Harrison J held that this was not a case in which any portion of the Amended Statement of Claim should be struck out. The defendant’s consented to the filing of a fifth edition of the statement of claim. His Honour nevertheless ordered certain particulars to be provided.

Steele v Director of Public Prosecutions [2007] NSWSC 926

In this matter Greg Walsh acted for the plaintiff who was the accused person in committal proceedings before the second defendant, Forbes LCM at the Hornsby Local Court. The proceedings relate to a charge of aggravated indecent assault contrary to s61M(1) of the Crimes Act, 1900 and a charge of aggravated act of indecency contrary to s61O(1)(A) of the Crimes Act, 1900. The Magistrate declined to direct that the complainant be cross-examined pursuant to s93 of the Criminal Procedure Act, 1986. The complainant at the time of the alleged offences was residing in a home care group home and is intellectually disabled.

On Monday 10 October 2005, the home was short staffed and an agency was contacted and sent a carer for the nightshift. This was the plaintiff. At 7.00am the following morning the regular carers arrived and whilst assisting the complainant to shower a conversation allegedly took place between the carer and the complainant. In that conversation the complainant made reference to “oh, sore bum.” He also allegedly said, “Man played with wee wee”.

The carer spoke to her colleague and then contacted the Rape Crisis Centre at Royal North Shore Hospital and conveyed the complainant to that hospital for medical examination. The complainant on Wednesday 12 October 2005 was interviewed by a Senior Constable in the presence of his mother. A number of the questions in that interview involved the complainant’s mother leading the complainant in respect of critical issues.

A buccal sample was obtained from the complainant and subsequently from the plaintiff. A biologist reported that the plaintiff had the same DNA profile as the DNA recovered from the seminal stained area of the pyjama pants. The complainant was again interviewed on 17 October 2006. This interview again took place in the presence of his mother. Once again, the complainant’s mother took a very active role in the course of the interview. The prosecution then withdrew two charges against the plaintiff.

Greg Walsh made an application pursuant to the provisions of the Criminal Procedure Act for the attendances of certain witnesses including the complainant. After a contested hearing, Forbes LCM declined the application in respect of the complainant.

An appeal was made to the Supreme Court and this was heard by McClellan CJ at CL. His Honour dismissed the plaintiff’s summons and made a finding that her Honour’s approach to the question as to whether the complainant ought to be directed to attend for cross-examination was “devoid of any error”.

His Honour dealt at length with the fundamental issue of an appeal pursuant to s53(3)(a) Crimes (Appeal & Review) Act, 2001. His Honour at [37] noted that such an appeal is only available with leave and is confined to a question of law alone. In terms of prerogative relief whilst accepting that it was available in relation to committal proceedings, it was a relief that could only be granted in particular circumstances. See Nanevski v Haskett[2006] NSWSC 1114.

His Honour [39] found that even if he, or another judicial officer, formed a different opinion to the learned Magistrate in respect of the application, on the same facts, this would not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law, McKirdy v McCosker [2002] NSWSC 197 per Howie J.

Luke Jarvie v Victims Compensation Tribunal

Luke Jarvie suffered serious injuries as a result of being attacked by an offender after watching a Cronulla Sharks v Warriors NRL game at Shark Park on 27 May 2006. Whilst he was leaving the grounds and awaiting his mother to pick him up, he was struck by an offender and rendered unconscious. He was admitted to hospital with a fractured skull.

The offender was charged with assault occasioning actual bodily harm and convicted at the Sutherland Local Court. Police called in evidence Luke Jarvie and other witnesses and the Magistrate convicted the offender and rejected any contention that the offender was acting in any way in self-defence.

Luke Jarvie retained a solicitor in respect of an application for victims compensation and that application was determined by the Tribunal whereby in effect no compensation at all was awarded to Mr Jarvie. The Tribunal in its findings relied upon a statement of a witness who was not called in the criminal proceedings.

Greg Walsh acted on Luke’s behalf in respect of an appeal from the determination of the Tribunal. It was necessary to establish special grounds pursuant to s.38(3) Victims Support & Rehabilitation Act, 1996, as there was a considerable body of addition evidence in relation to the act of violence and the extent and nature of injuries sustained.

In relation to the injury, Mr Walsh relied upon additional material including that of Professor Yeo, Dr Stening and Dr Roberts.

It was accepted that special grounds had been established and leave was granted for Mr Walsh to rely upon the new material. The compensation assessor determination was set aside and a significant amount of compensation awarded to Mr Jarvie.

McCrae V The Boy Scout Association of NSW & Potter (NSWDC 13 SEPTEMBER 2007)

In this matter Greg Walsh acted for Xavier McCrae, a former boy scout who was sexually abused by one Robert Potter, a Scout Leader. Potter pleaded guilty to sexually assaulting four young male complainants including Mr McCrae between 1978 and 2002.

Greg Walsh commenced proceedings on behalf of Mr McCrae claiming damages for assault against Mr Potter and damages for negligence against the Boy Scout Association. The Association eventually admitted breach of its duty of care. Damages against the association were assessed pursuant to the Civil Liability Act 2002.

Xavier McCrae initially attended at Kyle Bay Scout Hall where he was given, together with other young scouts, a firearm demonstration by Potter. Potter encouraged McCrae and others in the Venture Group to meet him at his house in Narwee. At the first meeting at Potter’s house, Mr McCrae was taken to a pistol club in Condell Park. Over the next three years, Potter encouraged Mr McCrae and other young scouts to come to his home where pornographic videos were shown including homosexual videos. Xavier and others were subjected to a number of forms of sexual views which continued right to 2002.

Potter was not only a paedophile but also a hebophile, that is, an adult who has a strong sexual and emotional attraction to adolescents. The ages of such children are between 11 and 17 years of age. Hebophiles invariably display predatory behaviour in identifying troubled or withdrawn post-pubescent children. They often comfort and support vulnerable post-pubescent children and make the child dependent upon them.

The effect of the abuse upon Xavier McCrae was profound. Xavier was treated by Dr Sara Williams and Dr Ruth Forster. The latter had been providing regular psychotherapy since taking over his care in 2004. She diagnosed him as suffering a chronic dysthymic disorder.

Judge Peter Johnstone found that Xavier McCrae significantly understated his case and gave evidence in a forthright manner. His Honour noted the effects of self-mutilation on Xavier’s upper arms which clearly indicated the diverse effect of Potter’s abuse upon him. His Honour accepted Xavier McCrae as a witness of credit.

The Scout Association qualified Dr White who trivialised Xavier McCrae’s sexual abuse as the substantive stressor. Judge Johnstone observed “the opinion of Dr White is in my view flawed, objectively unsupportable and less than compelling.”

Apart from Dr Sara Williams, Dr Ruth Forster and Dr Parker, McCrae was examined by Dr John Roberts. His Honour noted that Dr Roberts spoke of the severity of the symptoms experience by Mr McCrae, including self-mutilation, down to the muscle of an intelligent young man and the appearance of normality but severely affected. His Honour Judge Johnstone found that Xavier McCrae suffered a severe and debilitated psychological condition as a result of the sexual abuse he experienced. His Honour awarded damages against the Scout Association in the sum of $501,941 and against Potter of $766,941. The award against Potter included exemplary damages of $100,000.