Yearly Archive 2012

R v JF (Unreported) NSWDC per Woods QC DCJ

In this matter Greg Walsh acted for JF (“the Accused”) who was charged with seven (7) counts of sexual assault upon his step-daughter (“the Complainant”).  The allegations were from 1999 until 2005.

The allegations commenced with an alleged incident in 1999 when the Complainant was aged eight (8). She alleged that, in the shower of the family home, she was subjected to an act of oral intercourse.

Later in the same year, the Complainant alleged that she was asleep in her bedroom with her sister when a similar act was perpetrated upon her and then an act of vaginal intercourse was alleged to have taken place.  At the time the Complainant was aged eight (8).

A further act of alleged oral intercourse was also alleged in similar circumstances to that of the previous incident.

There was a further incident in the context of the Accused explaining circumcision to the Complainant when he showed her his penis.

Thereafter there was a further alleged act of penile/vaginal intercourse.

The last incident was alleged to have occurred in the first half of 2005.

The Complainant tragically had a history of self-harm and suicidal ideation.  Her natural father had separated from her mother several years before the alleged incidents and had then left Australia to live overseas.  This had a significant impact upon the Complainant.

The Complainant had a very difficult relationship with the Accused (her step-father).  It was apparent that they clashed about most things and clearly did not get on.  The Complainant was very unhappy and felt that she was treated in a belittling fashion by the Accused.

The Complainant confided in her teacher of the degree of unhappiness that she had at home.  She was spoken to by a School Principal and denied any inappropriate conduct on the part of her step-father.  The teacher to whom she had spoken then travelled overseas, at which time the Complainant and the teacher commenced to communicate with each other by way of emails.  The teacher had a belief that the Complainant had been sexually assaulted by her step-father and to this the Complainant told her that that was not the case.

The Complainant was self-harming though this fact was not known even to her mother or the Accused.

In 2008, the Complainant spoke to a counsellor who told her that she had been sexually assaulted and that she should accept that as a fact.

At the commencement of the trial, issues relating to sexual assault communications privilege arose. It was apparent on the face of the Complainant’s statement that she had come to a belief that her symptoms of self-harm, depression and anxiety must have been attributable to a traumatic force in this case sexual abuse.  She communicated her views at varying times to a number of other people including her mother and other friends in the area in which she lived.  In one document, she expressed a number of theories about her symptoms but in doing so did not make any reference to the specific allegations that ultimately came to be the subject of the charges against the Accused.

In time, the Complainant came to a belief that she had disassociated from her emotions and that this process of disassociation had been explained to her was because she must have been sexually assaulted. Whilst overseas, the Complainant experienced incidents of “flashbacks” and “out of body experiences” which, according to her former teacher (who was living in that overseas country), were real experiences of the recounting of having been sexually assaulted by her step-father.

Greg Walsh made an application for access to be granted to a large amount of material including over 1,000 pages of email communications and other materials between the Complainant and her former teachers and Counsellors.  His Honour Woods DCJ in part granted the application which also was supported by the Crown Prosecutor. The Complainant herself was represented by Counsel, who opposed the application for access to be granted to the material.

His Honour held that there was a legitimate forensic purpose in access being granted to the material because the material was of significant probative value as to the credibility and reliability of the Complainant.

The learned Crown Prosecutor, after being granted access to the material (along with Mr Walsh), then considered the material and conferred with the Complainant.  The material was consistent with the Complainant having Recovered Memories and a belief that various symptoms that she suffered from must have been due to having been sexually assaulted.

The Director of Public Prosecutions directed a no bill against the Accused.  He was then formally discharged of each of the charges against him on 29 October 2012.

 

 

JF v DPP (Unreported) NSWDC per Woods QC DCJ (7 December 2012)

In this matter Greg Walsh acted for JF who had been charged with a number of counts of sexual assault involving his step-daughter.

The Director of Public Prosecutions no billed each of the charges.  The circumstances that led to the decision of the Director involved an argument in respect of sexual assault communications privilege.  A large amount of documentation was provided to the Court and a number of email communications between the Complainant and various counsellors were released by His Honour to the parties.

An application was made for a Certificate under the Costs in Criminal Cases Act 1967.

The application was opposed.

The Crown took a jurisdictional point and contended that the Court did not have jurisdiction to grant a Certificate.  The Crown asserted that there had been no practical purpose for the arraignment of the Accused and that steps ought to have been taken at an earlier time for access to be sought to the subject material that was the subject of sexual communications privilege.

The Crown relied upon reported decisions of the District Court namely Kaldon Karout (unrep, 15/10/2004) NSW DC per Blackmore DCJ) and Leslie Evans (unrep, 21/04/2005 per Armitage DCJ).   In effect the Crown argued the trial had not commenced within the meaning of the Costs in Criminal Cases Act.

Section 2(2) Costs in Criminal Cases Act provides that a certificate may be granted under section 2(1)(a) following an acquittal or discharge of an Accused at any time during the Trial, whether the hearing on the merits has occurred or not.  Section 2(3) states that in this section “trial” includes preliminary proceeding that form part of the Trial (for example a voir dire) and since 24 March 2004, a special hearing conducted under s.19 of the Mental Health (Criminal Procedure) Act 1990.

The present s.2 commenced on 29 November 2002, as a result of the commencement of the amending legalisation, the Courts legislation Miscellaneous Amendment Act 2002.

Until January 2002, s.2 required that a hearing on the merits occurred before a costs certificate could be granted.  The current s.2 only requires that the Accused has been “acquitted or discharged in relation to the offence concerned” after the commencement of the Trial in the proceedings, or that the Director after commencement of a Trial has given a direction that no further proceedings be taken.

Greg Walsh argued that in accordance with s.130 Criminal Procedure Act 1986 the Court had jurisdiction with respect of the conduct of proceedings and indictment and as soon as the indictment is presented and the Accused person is arraigned and any orders that may be made by the Court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

Section 130(3) provides that if proceedings are held for the purposes of making any such orders after an indictment is presented to commence at trial and before the jury is empanelled to proceed on the part of the trial of the Accused person.

In Evans His Honour Judge Armitage refused to issue a certificate even though the Accused had been arraigned before the “no bill” was granted.  In this context the Accused had been arraigned a few months earlier at a time when the Trial date was fixed.  The matter was no billed on the morning of the Trial.  His Honour held that s.130(3) of the Criminal Procedure Acthad no application in the circumstances as it refers to the indictment being “presented to commence the Trial” whereas an indictment in this case was presented to set a trial date.

Section 2(2) Costs in Criminal Cases Actwas enacted in specific terms “… at any time during a Trial whether a hearing on the merits has occurred or not”. Section 2(3) specifically provides that “Trial” includes preliminary proceedings that form part of a Trial such as a voir dire.

Thus it was submitted on behalf of the Accused/Applicant that it was somewhat serious that the Crown contended that there was no reason as to the arraignment of the Accused.  Section 130(2) Criminal Procedure Act expressly provided a fundamental statutory basis for the arraignment of the Accused.

Contrary to the Crown submissions, a subpoena had not been issued in the District Court for the production of the documents sought under sexual assault communications privilege.  The issue had been raised in the context of notices in accordance with the Act had been provided to the protected confiders and they had provided the documentation referred to in the draft subpoenas to the Court.  The Crown joined in an application that the material be provided to His Honour and argument as to the legitimate forensic purpose of such documentation then took place.

Thus in a practical sense the argument as to sexual assault communication privilege could have only arisen in this case at the time that it did upon the trial of the Accused.

Greg Walsh referred to a number of authorities in the course of argument including Alison v Director of Public Prosecutions (1991) 24 NSWLR 550; Regina v Hatfield [2001] NSW SC 334; R v MacFarlane (Unreported Supreme Court NSW 12 August 1994); R v Pavey (1997) 98 A Crim R 396; R v Manley [2000] NSW CCA 196; R v Dunn (unreported Supreme Court NSW 17 May 1990); Mordaump v Director Public Prosecutions [2007] NSW CA 121; JDB v DPP & Ors [2000] NSW SC 1092; JC v DPP [2009] NSW DC 424.

In JC v DPP [2009] NSW DC 424 Norish QC DCJ said at [44]-[45]:

“The prosecution in its submissions stated that: “(T)he complainant believes in a genuine sense that her account, or claim, of what she says occurred involving the accused”, but also acknowledges a number of inconsistencies in her accounts. The prosecution notes the tension between the complainant’s self belief and that there are “these (obvious) inconsistencies (identified by the accused through cross examination) and the complainant’s denial of them”. As has been observed by the Court of Criminal Appeal in (Johnston [2000] NSWCCA 197) the perceived need to see that “justice is done”, so to speak, is not necessarily a reasonable basis for instituting proceedings. In this matter, a “genuinely held belief” by the complainant that certain things occurred was not a reasonable basis for instituting proceedings, when an objective assessment of the complainant’s claims could lead to a conclusion that her claims are unreliable, unsustainable, untruthful or incredible. Here, in the context of the legal directions applicable, the prosecution was required to make an evaluation of the significance of ‘recent inventions’ or material additions to her initial lengthy statement years and/or months after that statement. In the context of an unsupported complainant and the absence of supporting evidence where it might be expected (JT) the ‘development’ of the complainant’s memory required very close consideration of whether it was reasonable to prosecute, even allowing for her explanations for her improved memory.

45 I acknowledge the difficulty the prosecution has in dealing with a person who may “genuinely” believe what they say or give that impression, claiming to be a victim of serious crime. However, the institution of proceedings cannot solely be left to the discretion of the complainant or founded an unquestioning acceptance of explanations for seemingly inexplicable weaknesses in her allegations. An independent prosecuting authority must be objective in its assessment to ensure that unworthy, or unsustainable, prosecutions are not brought. In my view this is a case, without regard to consideration of the accused’s good character (he was proposing to run a positive case on character) or any evidence in denial that was doomed to failure if a jury acted reasonably.”

His Honour Woods QC DCJ held that he did have jurisdiction in respect of the granting of a certificate and as to his discretion he was comfortably satisfied that it was appropriate for a certificate to be granted to the Applicant.  His Honour note that the Crown had conceded at the time of examining the subject material that it so impacted upon the credit and reliability of the Complainant that the proceedings were terminated.  Applying those facts as required by the legislation at the time the proceedings were instituted (time of the arrest of the Accused) it was appropriate that a certificate be issued.

R v Huon [2012] NSWSC 1092

Greg Walsh acted for Mr Huon (‘the offender’) who was charged with Murder. The offender was born in shanty town near Colombo, Sri Lanka and became the adopted son of a family in Sydney, NSW. He was 23 years of age at the date of the offence.

At about 7:30PM on Thursday 24 June 2010, the offender drove to the home of his grandmother (‘the deceased’) and consumed two cups of Scotch whisky and Coke. He obtained a knife from the kitchen and stabbed the deceased with it in the left cheek – the blade becoming embedded and the handle snapping off. At approximately 10:46PM, he entered the Mortdale Hotel and played poker machines and consumed drinks. He returned to the deceased’s home shortly thereafter. At about 1:00AM on Friday 25 June 2010, a sex worker attended the deceased’s home and an amount of $330 was charged to the deceased’s credit card for sexual services. At about 3:10AM, an amount of $308 was charged to the deceased’s credit card for further sexual services.

Click here to download a copy of the judgement of His Honour Justice Hall (Supreme Court of New South Wales)

Richardson v Laing O’Rourke (BMC) Pty Ltd (2012)

In this matter, Greg Walsh acted for Julian Richardson – a Plaintiff in an action against his employer.

On 13 November 2007, whilst conducting his duties as an employed “Linesman” and working on the Epping to Chatswood rail tunnel, the Plaintiff was struck in his left cheek and left eye by a copper wire. The wire was inadequately fixed to a “D” shackle system and the tension built up in the string line caused it to whip towards the Plaintiff’s face.

The Plaintiff sustained serious injury – virtually complete loss of sight in left eye – and sought damages.

The matter was fixed for hearing in the District Court, Sydney, for two days but was ultimately settled. The Plaintiff received considerable damages pursuant to both the Common Law and the Workers Compensation Act.

 

R v John Edward Saffin (2012) NSWDC per Black QC DCJ

On 7 September 2012, Greg Walsh appeared for Mr Edward John Saffin in sentencing proceedings before his Honour Judge Black QC at District Court, Lismore.

Edward John Saffin had pleaded guilty to a charge of “Accessory After the Fact of Armed Robbery”. He had been remanded in custody for a period of approximately six and a half months and admitted to an intensive rehabilitation program for a period of seven and a half months. His Honour granted a remand pursuant to s.11 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) on condition that the offender undertake supervision by the Adult Probation and Parole Service and continue to undertake supervision by the Adult Probation and Parole Service, as well as continued psychiatric and drug and alcohol treatment.

The Offender faithfully complied with conditions imposed by His Honour, including regular attendances upon his treating psychiatrist, psychologist and counsellor. His Honour imposed a sentence of two (2) years wholly suspended on the condition that the Offender continue to attend upon his treatment.

Commonwealth DPP v Moffat (2012) (NSWDC, per Dick DCJ)

On 6 September 2012, Greg Walsh appeared for Edward John Moffat at the District Court, Mackay in respect of his plea to a count contrary to s. 474.19(1)(1) of the Criminal Code Act 1995 (CTH).

The sentencing proceedings were heard by her Honour Judge Dick SC.

The offender had a prior conviction of ‘Indecent Dealing’ and also an extensive subjective history. He had entered a plea at the earliest opportunity and had fully cooperated with investigating police. At the time of the execution of the search warrant the offender made admissions as to his conduct. The total number of images accessed by the offender amounted to 1,640 of which 98.5% were at level 1 on the Child Exploitation Tracking System (CETS) scale. His Honour sentenced the offender to a term of imprisonment of eight (8) months with an actual term of imprisonment of three (3) months and then a period of supervision for fifteen (15) months.

McMaster v State of NSW; Karakizos v State of NSW (2012) NSWDC 108

In this matter Greg Walsh acted for the Plaintiffs in proceedings heard before P Taylor SC DCJ.

The Defendant made an application for a stay of proceedings during related criminal proceedings.  An application was also made by the Defendant to restrict access to subpoena documents arising out of related criminal proceedings.

Greg Walsh acted for each of the Plaintiffs in respect of an incident that occurred on Monday 26 September 2011 at Colyton.  Two police officers attended this address when one of the Plaintiffs, Mr McMaster was shot in the abdomen by one of the police officers in the presence of the other two Plaintiffs.

Mr Walsh swore an affidavit opposing that the documents produced by the State of NSW “have not been accessed, uplifted or copied by” he or any of his staff or to his knowledge “any other person on behalf of the Plaintiff.”

In our argument the Plaintiff’s position was supportive of the criminal proceedings which arose out of the invasion of the home of the Plaintiffs and which had occurred just prior to the shooting of the incident in which Mr McMaster was shot by police.

The Defendant asserted that each of the Plaintiffs should not have access even to their own statements.  Further that Mr McMaster had not yet given a formal statement to police.

His Honour held that neither of these reasons could have given rise to a stay of proceedings.  The fact that Mr McMaster had not given a statement to police was not relevant to the proceedings.

The Defendant argued that the documents produced could only be used in the course of the proceedings.  In that context such statements were provided in the criminal proceedings and as such they could not be accessed in the civil proceedings.

His Honour rejected this contention and noted that it was misconceived.  There was no authority provided by Mr Saidy in support of the contentions nor was any privilege claimed in the proceedings on behalf of the Defendant.

His Honour observed that there was no longer, a rule that civil proceedings should be stayed whilst related criminal proceedings are pending.  See Griffin v Sogelease Australia Ltd & Ors [2003] NSWCA 158; Roshfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

The Defendant submitted that the Accused in the criminal proceedings would be at risk in terms of self incrimination in seeking to defend themselves in the civil proceedings.

However the problem with such an argument was the offenders are not even parties to the proceedings.  His Honour made a finding that he was not persuaded that it was likely the Defendant would cross-claim against them.

The Defendant further asserted that it would be contrary to the interests of justice or Mr McMaster or the other Plaintiffs to give a priority in pursuing their own interests in the civil proceedings to the detriment of criminal proceedings.  His Honour rejected this assertion.  It was contrary to well established authorities.

His Honour made orders that the proceedings be consolidated and that first access would be granted to defend subpoenaed documents so such documents could be marked “successful by Plaintiff’s solicitors” and grant access to the Plaintiff’s solicitors to those documents on the undertaking not to provide a copy of same to the Plaintiff other than providing to each Plaintiff a copy of their own statements.

The Defendant was ordered to pay the Plaintiff’s costs of the Notice of Motion.

 

Padria v Padria [2012] FAMILY COURT

In this matter Greg Walsh acted for the mother who had received information and documents from the father in financial proceedings in the Family Court. She had sent that information and those documents to the Child Support Registrar with a departure application.

It would agree that the information in those documents attracted the operation of a Harman obligation, being an obligation to prevent the use of information by a third party who is aware of its provenance. The issue that arose was whether the Registrar had breached the Harman obligation and also whether the mother had breached that obligation. It was contended by the father that the Registrar had aided and abetted the mother in breaching the Harman obligation. It was argued on behalf of the mother and the Registrar that the Harman obligation must yield to a statutory provision, namely provisions of the Child Support (Assessment) Act (CSAA) involving the nature of disclosure in the departure application to the Registrar.

The mother and the Registrar relied upon extensive case law in respect of these issues in the hearing before Justice Watts. His Honour held that neither the Registrar nor the mother were in breach of the Harman obligation and a declaration was made that the Registrars and officers and employees of the Department of Human Services are not prohibited by reason of any undertaking to the Family Court from using information in the exercise of their statutory functions and powers namely the information in the documents sent by the mother to the Department as part of her application.

An application by the Father that a case be started before Court was also dismissed by Watts J.

R v John Francis Gaven (14 May 2012 – 5 July 2012)

In this matter, Greg Walsh appeared as trial counsel for John Francis Gaven – a member of the Vincentian Order – in respect of his trial at the District Court Sydney. The trial was conducted by his Honour Judge Cogswell SC and involved two (2) Complainants. The pre-trial applications extended over two weeks and involved issues involving sexual assault communications privilege, tendency and coincidence evidence and complaint evidence.

The Accused faced eleven (11) counts and the jury could not agree as to a verdict on any count. The jury was ultimately discharged by the Trial Judge.