Monthly Archive September 2008

Stanoevski v Council of the Law Society of NSW (2008) NSWCA 93

In this matter Greg Walsh acted for Liljana Stanoevski, a solicitor, who was found by the appeal panel of the Administrative Decision’s Tribunal to have engaged in various significant acts of professional misconduct. See Stanoevski v Law Society of New South Wales ( No. 2) (LSD) 2004 NSW ADTAP 35.

Ms Stanoevski appealed to the Court of Appeal in respect of the decision of professional misconduct and the order removing her name from the Roll of Solicitors: Stanoevski v The Council of the Law Society of New South Wales (2005) NSWCA 428. The Court of Appeal held that there was no reason to set aside the findings of professional misconduct but the process by which the penalty had been arrived at contained a material procedural flaw. The orders were set aside and the matter referred to the Appeal panel. The Appeal panel reconsidered the question of penalty and once again, though by majority rather than unanimously, concluded that the appellant’s name should be removed from the roll: Stanoevski v The Council of the Law Society of New South Wales (ILSD) NSW ADTAP 25.

It was argued on behalf of Ms Stanoevski that the Appeal Panel had fallen into error in applying the incorrect test. Campbell JA at [39] with whom Hodgson JA and Handley AJA agreed observed that the Appeal Panel’s reference to restoring the appellant to the roll was erroneous as she was already on the roll. His Honour found that the Appeal Panel had not misapprehended its task or applied the wrong test in any way was material in its decision to making reference to both whether the appellant was a fit and proper person to hold a practising certificate and whether the appellant was a fit and proper person to be on the roll.

It was further contended that the onus was on the Law Society to establish that a person whose name was on the roll was not a fit and proper person to remain on it. In particular, that it was necessary for the Law Society to establish that the solicitor is “permanently unfit for practice.”

It was further contended that the Appeal Panel had reversed the onus, and improperly placed an onus on the applicant. Campbell JA from paragraph [52] onwards analysed the question of the onus of the proof. The Court of Appeal determined that the appeal panel permissibly shifted the evidential onus to the appellant which required that she, in circumstances where proven misconduct had been established in the period 1991 to 1993, produced evidence that gave reason for believing that the situation had changed.

Thus, the appeal was dismissed.

Nowak v R (2008)

In this mater Greg Walsh appeared on behalf of the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty with the intent to maliciously inflict grievous bodily harm.

The applicant and the victim were amongst a number of guests at a wedding ceremony and reception. In the course of the evening there was a disagreement with a man who was part of the bridal party. The applicant and three of his friends were asked to leave the reception by members of the families of both the bride and groom. The offender and his three friends walked down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700ml glass vodka bottle which was still sealed and full. The bride’s father was walking behind the applicant and his friends in order to ensure they left the premises. As he reached the exit gate to the driveway the applicant was pushed in the back and he swung the glass bottle which he was holding and struck the victim with it. The glass bottle shattered upon impact with the victim’s face. The victim sustained lacerations to his face and a fractured nose.

The applicant voluntarily attended Quaker’s Hill Police Station where he was arrested. At the time of his offence he was 21 years of age and 22 when he stood for sentence. He had been attending university and was within six months of completing his Bachelor of Science degree. He had no prior convictions and was a person of otherwise good character.

Greg Walsh relied upon the following Grounds of Appeal on behalf of the applicant, namely:

  1. That the sentence imposed by the learned sentencing judge was too severe having regard to the objective and subjective circumstances of the offence.
  2. That the sentencing judge erred in finding that there were aggravating features present including:
  3. The use of the weapon to inflict the injuries and the force used
  4. The extent of the injuries sustained.
  5. That the victim was vulnerable in the extreme.
  6. That the sentencing judge erred in finding there was no provocation on the part of the victim.

Buddin, Barr JJ and Bell JA agreed. They referred to the provisions of s21A(2)(c) of the Crimes (Sentencing Procedure) Act. His Honour referred to R v Elyard (2006), R v Cramp (2004). Buddin J found that the sentencing Judge had fallen into error and upheld this ground of appeal.

In relation to the issue of the victim being vulnerable, Buddin J referred to R v Tadrosse (2005). The sentencing judge found the victim, by not being armed, was vulnerable in the extreme. His Honour at [31] also found this ground of appeal had been made out. The Court found that the offence was a serious one and that in all of the circumstances no other sentence was warranted in law. The appeal was dismissed.

Police v M

In this matter Greg Walsh acted for M who on 18 June 2007 was arrested by police at his home in Balmain and charged with assault and resist arrest. It was the accused’s case that he was the subject of a vexatious complaint. This had arisen in the course of an alleged domestic violence incident. The incident had been privately witnessed by persons in the adjoining home who had contacted police.

The case concerned the powers of the police under statue and common law to enter premises and in particular the Law Enforcement (Powers & Responsibilities) Act, 2002.

It was argued by Greg Walsh on behalf of the accused that his arrest was unlawful on a number of grounds. The primary ground that in order for there to be a lawful arrest the police must suspect on reasonable grounds that arrest is necessary to achieve more of the purposes referred to in s99 of LEPRA. In the course of the argument, the observations of Smart AJ in R v Rondo (2001) was referred to. Further, the decisions of the Court of Appeal in State of New South Wales v Kuru and Pringle & Ors v Everingham (2006) arose.

The Court held that the police had trespassed in entering upon the accused’s premises. In factual terms, the accused had directed police to leave his home which they had entered. Three of the officers did so but remained at the front door. However when the Court on to find out that as the accused’s wife had impliedly given permission for police to enter there was no trespass.

The Court then dealt with the issue of the evidence relied upon by the prosecution pursuant to s138 of the Evidence Act 1995. It was submitted by Greg Walsh that such evidence was inadmissible. He relied upon the well known passage in Donaldson v Broomby (1982) A Crim R 160. Reference was also made to the test adopted by Smart AJ in R v Car (2002) NSWSC 194.

In further argument, reliance was had to R v Cornwell (2006) NSWCCA 116. The observation of Howie J referred to as were those of Hall J in Director of Public Prosecutions v AM (2006) NSWSC 438. The presiding Magistrate found that the decision to arrest the accused was entirely motivated by expediency. His Honour further found that the evidence obtained in consequence of the impropriety and was inadmissible. The Magistrate also was not satisfied that a prima facie case existed in relation to the charge of assault occasioning actual bodily harm and assault and all charges were dismissed. An application for costs was granted in favour of the accused.

Du Randt v R (2008)

In this matter Greg Walsh appeared for the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against a sentence imposed by Sorby DCJ. She pleaded guilty to a charge that between 28 December 2005 and 31 May 2006 she had dealt in money that was proceeds of crime and was as to the fact that the money was proceeds of crime and at the time of the dealing the value of the money was $100,000 or more. She was sentenced to imprisonment for three years expiring on 28 September 2009.

The applicant knew a number of people who were involved in the importation of amphetamine and the distribution of the proceeds of its sale. In the period between June and December 2005 the applicant had spoken to one Lisa Dunn who knew a number of these persons. On 8 June 2005 a United States Navy vessel arrived at Townsville and a member of the crew retrieved from it a quantity of amphetamine and handed it to another of the syndicate.

On 9 November 2005, one of the drug syndicate arrived on a shipment from overseas and the applicant travelled by car from Sydney to the Gold Coast to collect $100,000 in cash from another member of the syndicate. She drove back to Sydney and delivered the money to a cash dealer. On another occasion she travelled again by car to the Gold Coast and collected a further sum of $100,000 from a member of the syndicate and brought it back to Sydney by car. On a third occasion she transported an amount of $50,000 back to Sydney by plane.

On 24 October 2006 the applicant was arrested. She was initially interviewed by Federal Agents on that day and again on 21 November 2006. She admitted transporting cash on the three occasions. She explained that she did do as she believed that the money she was collecting was for the legal fees for a member of the syndicate. She was chronically depressed and was being treated and prepared to do any task that made her feel worthy. She did not question her friends who had asked her to transport the money.

In the sentencing proceedings, Dr Freed, a treating psychiatrist was called to give evidence. In his opinion the applicant had a significant degree of impairment of her psychiatric functioning and control. Dr Freed was an expert in the diagnosis and treatment of bipolar disorder and practiced at the St Vincent’s clinic. In particular the applicant had suffered a significant subjective history in that she had on a number of occasions been abused s a child and as a teenager. Her symptoms included significant psychotic features including disturbed thoughts of eating human kidneys and other delusional beliefs. The impact of the abuse upon her was also a significant feature of her bipolar disorder and psychotic symptoms.

Sorby DCJ did not accept that the mental condition from which the applicant was suffering had interfered with what she was doing when she carried away the money. In argument, two principle ground were advanced on behalf of the applicant, namely:

  1. The sentence imposed by the learned sentencing judge was too severe having regards to the objective and subjective circumstance of the offence.
  2. By reason of the applicant’s psychiatric/medical condition subsequent to the imposition of a sentence, a miscarriage of justice had occurred (such that a different and lesser sentence should now be imposed upon the applicant.)

Ground one

Barr J observed at [24] that the two substantial arguments were put forward under this ground. The first was that his Honour did not consider whether and how the applicant’s mental condition affected her appreciation of the gravity of the offence, as it was put. Mr Walsh referred the Court to a number of cases which explained the various ways in which the mental illness of an offender may sound and the sentence to be imposed. See Leach v R [2008] NSWCCA 73, Basten JA [10]-[12]; R v Verdins [2007] VSCA 102 at [32] and R v Israil [2002] NSWCCH 255.

His Honour noted at [27] that Mr Walsh drew the Court’s attention to parts of the report of Dr freed which was before the sentencing judge. The first was bipolar disorder mixed with psychotic features. The applicant had manic like symptoms since at least 1999 and significant depressive symptomatology following her sister’s rape and assault in September 2005. She had the complication of mixed intertwining between depressed and manic phases as well as psychotic features, namely auditory hallucinations and paranoid ideation. She thought that flies settled on her because she was garbage. She thought that her family whispered about her. Dr Freed drew attention to the family history of mental illness, including bipolar disorder. Significantly Barr J at [28] noted the post traumatic disorder resulting from sexual molestation on a number of occasions and also the assault and rape of her sister by four men in 2005.

The Court concluded that the evidence shows that the effect on the applicant of the various illnesses from which she suffers will be significant as she serves her sentence and her sentence ought to be mitigated. Barr J with whom Basten JA agreed said the sentence imposed by His Honour is warranted: s6(3)Criminal Appeal Act 1912.

The applicant was granted leave to appeal and the sentence appealed from be quashed and there be substituted a head sentence of imprisonment of two years and six months with a non parole period of one year and six months.

Wilson v State of NSW [2008] NSWDC 130

In this matter Greg Walsh acted for David Wilson, the plaintiff in an action against the State of New South Wales.

A subpoena had been issued seeking the production of documents from the Commissioner of Police and objection was taken to the production of those documents.

Mr Wilson had sued the State of New South Wales for wrongful acts alleged against certain Sheriff officers in its service. The plaintiff claimed damages for trespass, assault, wrongful arrest, false imprisonment, malicious prosecution, trespass to goods and detinue.

Complaints were made as to the conduct of the officers involved which became the subject of various investigations and other inquiries by a number of authorities including the New South Wales Ombudsman of a disciplinary nature. The subpoena sought the production of documents brought into existence as a result of these complaints and their consequences, which the defendant resisted relying on s.170 of the Police Act,1990; s.56 of the Civil Procedure Act, 2005 and the Uniform Civil Procedure Rules, 2005.

On 31 January 2008, Walmsley J ordered the defendant give discovery of certain disputed categories of arising out of the complaints, but left open for subsequent consideration various issues surrounding production and inspection of the documents. The defendant prepared a list of documents in which it discovered a significant number of documents. No objection was made to a number of those documents.

Johnstone DCJ referred to the observations of Hunt J in R v Saleam (1989) 16 NSWLR 14. His Honour observed at [162B]:

“The circumstances that a document is inadmissible in evidence in any particular proceedings, does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes. In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 12-13, Blackburn J refused access to documents produced on subpoena on the basis that they were not by themselves admissible in evidence.

That decision was expressly held by the Court of Appeal to be unsound and not to be followed: Waind & Hill (381). Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form.”

The State asserted the principle in R v Saleam did not apply to s.170 of the Police Act. It was submitted that s.170 should not be read so restrictively in the environment of civil litigation post the Civil Procedure Act, 2005. Johnstone DCJ observed:

“That was a bold submission and not one that espoused any principle of statutory construction of which I am aware.”

The next contention on behalf of the defendant was that the word ‘privilege’, which appears in the heading to s.170, must be given some work to do. His Honour rejected this contention. See s.35(4) of the Interpretation Act.

The defendant then contended that the disputed category 2 documents were not relevant to any civil proceedings His Honour said that this was also a bold submission.

Next the defendant contended that the plaintiff had not established a legitimate forensic purpose. His Honour found that it was probable that the documents will reveal additional facts not in possession of the plaintiff that will assist in the prosecution of his case. Further, that the documents will inevitably give rise to avenues for further investigation and the identification of additional potential witnesses. Further, they will in all likelihood assist the plaintiff in the cross-examination of any defence witnesses. See Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 11; Esso Australia Resources Limited v Federal Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385F.

Finally the defendant contended that the Court should refuse the inspection as to do so would run contrary to the overriding purpose enunciated in s.56 of the Civil Procedure Act 2005, to the effect that the procedures of the Court should be conducted so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.

The defendant relied upon the observations of the Chief Justice in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29]. His Honour noted that the remarks of the Chief Justice were not in relation to s.58 of the Act and that the Court must act in accordance with the dictates of justice. Those dictates not only require him to have regard to the object of the just determination of the proceedings (s57(1)), but to enable him to have regard, amongst other things, to the nature of the proceedings involved and the degree of difficulty or complexity to which the issues give rise (s58(2)(b)(i)), and to the degree of injustice that would be suffered by the respective parties as a consequence of any order that he may make (s58(2)(b)(vi)).

His Honour made the orders sought by the plaintiff in the motion.