R v Mendelow (Unreported) NSWDC per Flannery DCJ
In this matter Greg Walsh appeared for Jason Mendelow who was a security guard employed at the Ivy Nightclub in Sydney.
Jason Mendelow together with Mr Fenukitau and Mr Ntaras pleaded guilty in the Local Court to a charge of assault of Nicholas Barsoum in company and caused him actual bodily harm.
At 1.30am on Sunday 28 August 2011 the victim was celebrating a friend’s birthday at the Ivy Bar. He was approached by his ex-girlfriend who hit him in the face before turning and walking off. He grabbed his former girlfriend and was then grabbed by a security guard at the Ivy who told him he should not act that way and he should leave. He attempted to argue. The victim emerged from a lift on the ground floor and was followed down Ash Street by two security guards from the Ivy. He was struck to the side of the face but did not see who had hit him as he was walking from Ash Street into Angel Place. It was not alleged that Mr Fenukitau had any involvement in the initial assault upon the victim.
The victim spoke to friends on his mobile phone and these friends decided to return to the Ivy via Ash Street to confront the security guards. The victim walked up to Mr Fenukitau and Mr Fenukitau was struck to the side of his face by the victim which caused a cut to the upper cheek near the eye. Mr Fenukitau and another security guard then restrained the victim.
Mr Mendelow arrived and held friends of the victim back from approaching Mr Fenukitau and the victim. Security guards restrained the victim. The victim was dragged down a flight of stairs by a security guard. He was picked up and placed on a stool opposite the security office.
Mr Fenukitau who had received some treatment for his eye approached the victim and punched him to the head with his right hand and then walked back to the security office.
Mr Ntaras approached the victim when he was seated on the chair and punched him twice in the groin area. At this time Mr Mendelow stood opposite the victim with another security guard Mr Hendra. Mr Hendra walked from the security office and kicked the victim to the head, upper body with his right foot as the victim sat on the stool. Mr Ntaras then kicked and punched the victim and pulled him forward off the stool before kicking him twice. Whilst Mr Ntaras was assaulting the victim, Mr Fenukitau walked form the office and approached the victim and punched him. As the victim hunched over after this punch, Mr Ntaras approached the victim and kneed him twice.
The force of these blows caused the victim to fall off the stool. As the victim crouched on the ground Mr Mendelow approached him and kicked him in the head with his left foot.
In submissions on behalf of Mr Mendelow, Greg Walsh urged the court to accept that Mr Mendelow’s behaviour was an example of human frailty rather than one of him and veracity. Mr Mendelow was not actively involved in the incident upstairs and it was submitted that Her Honour could not be satisfied beyond reasonable doubt that Mr Mendelow threw the victim down the stairs. The victim was acting violently as he was being escorted down the stairs, swearing and threatening security guards. Her Honour’s principle concern would be what happened in the basement.
The Crown submitted that the conduct involved was of the worst category of offences as Mr Mendelow was employed to uphold the safety and security of patrons and staff. The offence occurred in the company of co-offenders.
Her Honour was not satisfied beyond reasonable doubt that the victim was thrown down the stairs. The CCTV footage did not assist. In respect of Mr Walsh’s submission, Mr Mendelow ought to be sentenced on the basis of what he did and not what Mr Ntaras did. Her Honour referred to the observations of Chief Justice King in R v Brougham (1986) SASR 187 at 191 where the Chief Justice said:
“The true meaning of the provision emerges from the authorities just cited. A person commits a robbery or an assault with intent in company, where that person participates in the robbery or assault, together with others, in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim. It is not necessary that more than one participant actually strike or rob the victim. It is sufficient that the accused and or more other participants be physically present for the common purpose of robbing or assaulting with intent and – physically participating if required.”
Her Honour referred to the observations of Kirby J in R v Button (2009) NSWCCA 159:
“What emerges from these cases? A number of propositions can be stated:
First, the statutory definition (s61J(2)(c)) requires that the offender be “in the company of another person or persons”. Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault). Thirdly, the cases appear to assume that each participant is physically present. Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough. Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be “in company”, even if the victim was unaware of the other person.”
Her Honour was satisfied beyond reasonable doubt that Mr Mendelow was in company with Mr Ntaras when the latter assaulted the victim and therefore was responsible not only for his own assault, but also for Mr Ntaras’ assault on the victim.
Her Honour was not satisfied beyond reasonable doubt that all of what Mr Ntaras did was attributable to his wanting retribution for the victim assault on Mr Fenukitau, although she was satisfied beyond reasonable doubt it commenced for that reason. She was satisfied that the reason for the prolonged nature of the attack by Mr Ntaras upon the victim was the extreme irritation he and Mr Mendelow felt towards the victim for his temerity and talking back to his attackers. In circumstances where the victim had assaulted one their colleagues.
Her Honour accepted that though Mr Mendelow’s crime was a very serious one, it was not in the worst category.
Her Honour was satisfied that the victim had suffered substantial harm.
Her Honour in dealing with Mr Mendelow’s subjective case noted that he had no prior criminal history and had a good work history and in particular excellent reputation as a security guard. There was no pattern of anti-social conduct according to Dr Olav Neilssen.
Greg Walsh submitted that the offence was not planned or organised and there was no likelihood of any re-offending and his prospects of rehabilitation were good and he was remorseful.
Her Honour footnoted the sentence imposed by Berman DCJ upon Mr Hendra who had pleaded not guilty to assault occasioning actual bodily harm in company, but guilty of common assault after trial. Mr Hendra was sentenced for kicking the victim to the stomach or chest whilst the victim was sitting on the stool. Mr Hendra had given evidence in his trial that he had been acting in self defence. His Honour was satisfied beyond reasonable doubt that if the victim had spat blood it was only in response to one of the security guards spitting at him. Mr Hendra was found His Honour not only to lack remorse but that “his attitude towards his criminality” is remarkable, as he saw himself the victim in the matter.
His Honour imposed a sentence of 18 months imprisonment with a non-parole period of nine (9) months.
Mr Mendelow was convicted and sentenced to a term of imprisonment comprising a non-parole period 12 months and a total sentence of 24 months.
Mr Ntaras was convicted and sentenced to a non-parole period of 14 months and total sentence of 27 months.
Mr Fenukitau was convicted and was assessed for an Intensive Correction Order and subsequently sentenced on that basis.
$1M Payout for Champ who Lost Left Leg
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R v DS and HJ (Unreported) NSWDC per Bennett DCJ
Mr Walsh successfully represented accused DS who was charged with sexual assault after events that occurred in a mosh-pit at popular concert venue the Horden Pavilion. The case involved the wrongful identification of the accused after key witnesses searched through photos of the night posted on facebook and saw the accused near by to them. All charges against the accused were dismissed after a lengthy examination of facebook and internet materials.
The allegations were that the accused and co-accused entered a concert venue in late 2010 where they moved through the crowd to the front of the most-pit. It was then alleged that they had a conversation with the female complainant and the complainant’s aunt, aged 15 and 16 respectively, while waiting for the concert to begin. At this point neither of the girls turned around to look at the face of the people talking to them. It was then alleged that during the show the accused sexually assaulted her while inside the mosh-pit.
After the events of the concert the complainant disclosed to her aunt what had happened to her. The two girls looked through the aunt’s camera and eventually found a picture where the accused could be seen standing in the crowd some distance behind the girls. The accused stood out as he was quite tall and had hereditary discolouration under his eyes. The next morning the two girls went online to a photographers website who took photos at the concert, on this site they found photos of the accused near, but not directly behind, the complainant.
A complaint was then made to police who tracked down and eventually charged the accused.
Mr Walsh ran a 2 week pre-trial application to exclude the evidence of photographs posted over facebook to identify the accused. In the proceedings it was uncovered by Mr Walsh, and Mr Charles Waterstreet for the co-accused, that the aunt of the complainant had only observed the accused in photographs accidentally taken by her and over facebook.
Mr Walsh was successful in the pre-trial application and the evidence gathered over facebook was excluded. All charges against the accused were dismissed.
Simmons v Rockdale City Council
Mr Walsh Acted for a champion cyclist Mr Simmons who lost his leg after colliding with a steel boomgate over one of the city’s most popular cycle routes. Justice Peter Hall awarded Mr Simmons almost $1 million in compensation. Read the full judgment here:
Greg Walsh acts for young girl repeatedly raped by her father
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Young v Young & Anor [2013] NSWSC 330
Read the judgment of Her Honour Adamson J Young v Young & Anor
View story: $3 million victory for ex-wife
Council of the Law Society of NSW v Fitzsimons (ADT Legal Services Division)
In this matter Greg Walsh acted for Maria Fitzsimons who was the subject of a complaint of professional misconduct by the Council of the Law Society of New South Wales.
The Council of the Law Society of New South Wales alleged that Maria Fitzsimmons was guilty of professional misconduct on 3 matters, namely:
- The Solicitor misappropriated trust monies
- The Solicitor misled or attempted to mislead the Law Society
- The Solicitor made a false Statutory Declaration
Maria Fitzsimons is the wife of Christopher Ronald Fitzsimons who employed her as a Solicitor. On 2 December 2005 the sum of $603,097.47 was deposited into the joint account of the Solicitor and her husband and in doing so it was contended by the Law Society that she mis-appropriated that sum. A sum of $603,097.47 funded other withdrawals from the joint account.
The deposit slip was forensically examined by Mr Paul Westwood a forensic doctor and examiner who concluded that it was highly probable that the questioned documents were written by the writer of the M Fitzsimons specimens.
The solicitor was admitted in the Supreme Court of NSW on 19 May 1990. She filed to reply in which she denied the allegations and facts pleaded in the application.
The Law Society relied on affidavits of Raymond Collins, Jean Slayer and Paul Westwood.
There was no dispute between the parties that the monies subject of the deposit into the joint account were misappropriated. The issue was who did the misappropriation?
The solicitor’s husband admitted that he had misappropriated the monies and he had deposited same into the joint account. His evidence was contradicted by Mr Westwood’s evidence and the volume of other evidence which put at issue the accuracy and veracity of his evidence. In particular what was his physical whereabouts on 2 December 2005 and his ability to carry out the alleged actions.
Mr Fitzsimons gave evidence that he was in Sydney on 2 December 2005 and had flown to Cairns on 29 November 2005 at 15:30 on a flight operated by Virgin Airlines. This was confirmed by records produced by that airline. On 2 December 2005 at 12:21 Mr Fitzsimons made a call lasting 30 seconds from Buckham Point (near Cairns) to a number in Sydney. He gave evidence that he was in Cairns in the morning and came to Sydney in the afternoon. He had no independent recollection as to when he left Cairns to come to Sydney.
In cross-examination he conceded he did not have a strong recollection of the period of late November through to December 2005 as he was suffering from a significant psychiatric illness. He agreed that it had been “a very, very long time of madness”.
Mr Fitzsimons gave evidence as to him diverting the call made from Saddle Mountain at 15:04 on 2 December 2005 which placed him in Queensland at about 3.00pm. He gave an explanation that caretakers were responsible for the diversion of calls. He clearly recalled flying from Cairns to Sydney on the afternoon of 2 December and he thought it was a Qantas flight.
Mr Fitzsimons insisted that he deposited the cheque for $603,000 on 2 December 2005 and denied that he was “covering” for his wife.
It was the solicitor’s evidence that she had been relentlessly persecuted by the Law Society in pursuit of a conviction against her husband. She denied that she had deposited the monies and denied that the handwriting on the deposit slips were hers. Mr Raymond Collins was the subject of cross-examination.
The solicitor asserted that her affidavit was true and correct. She informed the Law Society her husband had undergone a brain scan for a diagnosis of “a brain tumour”. She had not seen the results of the scan and she had not attended any specialist doctors appointments with him regarding the brain tumour during the period before 29 November 2005. She denied that she had made a false statement to the Society to the effect that she was “nursing a sick husband full time.”
In cross-examination she asserted that she needed to stop fighting with the Law Society because she had been diagnosed with cancer. She was aware that her husband was subsequently diagnosed with Bipolar Disorder, Alcoholism and a variety of physical and psychological conditions and was a chronic gambler.
The solicitor gave evidence that she was filled with emotion and worry about her husband and was more concerned about his ill health. She agreed that all of her submissions (which she was the author) could not have been right and the inference was that they to some extend had been misleading. She conceded she could have been more frank in her responses to the Society. She now accepted that she misled the Law Society and that conduct was unacceptable.
The Tribunal found that the solicitor had misappropriated the monies and misled the Society.
Greg Walsh submitted to the Tribunal that according to the Brigenshaw doctrine the Tribunal had to be extremely careful in accepting the evidence of Mr Westwood, the handwriting expert, the solicitor’s motive to misappropriate monies and her opportunity to do so. Greg Walsh submitted that there were significant limiting factors to Mr Westwood’s evidence in his reports. The issue of motive was one that the Tribunal ought to be very careful about relying upon as there was evidence of the solicitor and her husband had available funds of $495,000 at the relevant time and that neither she nor her husband were in financial difficulties at that time. See R v Tsingopoulos [1964] VR 676 at 681 Deane J; Plomp v R [1963] 110 CLR 234; R v Griffiths (1994) 125 ALR 545; R v Greene (2002) 4 VR 471; Chamberlain v R (No.2) (1984) 153 CLR 521; De Gauchy v R (2002) 211 CLR 85.
The Tribunal observed that for the misappropriation to be established it is necessary that the alleged converter intended to do that which would deprive and impair the owner’s immediate right to possession or the intention to do the act in dealing with the thing, but not wrongful motive is required and it is not necessary that the converter did intend to challenge the owner’s right to possession.
The Tribunal observed that it is not necessary to establish that she knew or believed or intended that her actions were dishonest and what must be established is that she subjectively intended to do the acts that are said to be objectively dishonest by reference to the ordinary standard of reasonable and honest people. See Bell J in Brereton v Legal Services Commissioner [2010] VSC 378.
The Tribunal also considered the decision of Brereton in Council of Law Society of NSW v Clapin [2011] NSWADT 83 at [26].
The Tribunal ultimately rejected Mr Fitzsimons’ evidence that he deposited the cheque on 2 December 2005 and that he misappropriated the money. The Tribunal made a finding that he was “a fabulist, bombastic person who is quick to give evidence on matters of which he says he has no recollection.” He was a witness who regarding his conduct in misappropriating client’s money as being an achievement and appeared to be proud of that achievement and had no remorse. The Tribunal did not accept his evidence and he returned to Sydney on a Qantas flight on 2 December 2005.
The matter has been stood over for further directions as to penalty.