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In this matter Greg Walsh acted for Joanne Young (Plantiff)
JUDGMENT
1 On 2 August 2016, the Contemnor, Ms Josephine Aapa Smith was found guilty of contempt of Court. The Court, as presently constituted, held that on 2 February 2015 the Contemnor dealt with property located at Wharf B, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (‘the Property”), by encumbering it by means of a mortgage in favour of Westpac Banking Corporation (“Westpac”) in circumstances where the Court had, to the knowledge of the Contemnor, restrained such conduct in relation to that property.
2 Having heard the parties on what, if any, sentence to impose, it falls on the Court to sentence the Contemnor.
3 The orders breached were orders of the Court, as earlier stated, restraining any dealing in the Property. The conduct giving rise to the contempt is described in the Reasons for Judgment, published by the Court and giving rise to the finding of guilt: Young v Smith (No 3) [2016] NSWSC 1051 (“the Judgment on Guilt’).
4 It is unnecessary to recite, in full, the somewhat complicated issues associated with the finding of guilt. It is sufficient, for present purposes, to reiterate that proceedings were commenced by the plaintiff, Mrs Joanne Elizabeth Young, initially against her former husband, Mr Leslie James Young, and, as a consequence of the initial proceedings, freezing orders issued against the husband and his subsequent partner, the Contemnor in these proceedings.
5 In the Judgment on Guilt, the Court set out a history of the proceedings (see [17] of that judgment and following). That history is relevant in understanding the objective seriousness of the matter with which the Court is now concerned and is in the following terms:
[17] The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.
[18] At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).
[19] In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.
[20] The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.
[21] The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.
[22] In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed In or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.
[23] The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million.
[24] On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance. Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.
[25] On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.
[26] On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.
[27] On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.
[28] On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property. until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.
[29] On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application. [Footnotes omitted.]
6 On 4 September 2014, the Court issued orders, the effect of which was to continue the orders issued by the Court on 29 August 2014 against both Mr Young and the Contemnor in these proceedings. On 2 February 2015, the Contemnor, in contravention of the said orders, entered into a mortgage over the Property and was advanced $5.8 million by Westpac.
7 The Contemnor breached the orders, issued by the Court on 29 August 2014 and continued by the Court on 4 September 2014, and that breach gives rise to the sentence to be imposed for contempt of Court.
8 On 15 April 2015, the Court (constituted by Sackar J) finalised the substantive proceedings, dealing with the ownership of property, and on 5 May 2015 issued orders giving effect to those reasons. The orders were altered on 6 June 2015 and the ultimate effect of the orders was that, subject to a registered mortgage, the Contemnor held the contentious property subject to a one half share on trust for Mr Young but not so as to interfere with any interest of the plaintiff in these proceedings.
Punishment for contempt
9 The power of the Supreme Court of New South Wales to punish for contempt arises from its status as a superior court of record. Contempt is a common law offence, punishment for which is an inherent power of a superior court of record. It is unnecessary here to deal with punishment in the face of Court to which the foregoing statements do not relate.
10 Pursuant to the powers described in the Supreme Court Rules 1970 (“SCR”), and in particular Pt 55 r 13, the Court may impose a penalty for contempt on an individual, being committal to a correctional centre or fine or both. Further, the Court may issue orders for punishment on terms, including suspension or part suspension and impose conditions for good behaviour and the like.
11 There are two types of contempt: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, the breach of an order or undertaking. However, where that breach is deliberate, being a deliberate defiance or a contumacious breach, contempt that is otherwise civil is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3.
12 Further, the Court of Appeal has determined that contumacious, wilful and deliberate disobedience of a Court order may be characterised as both civil and criminal conduct: see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA; and Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway, supra.
13 Even “mere” civil contempt affects the administration of justice. The purpose of imposing punishment for wilful disobedience of a court order is to discipline the offender and to vindicate the authority of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112].
14 The process of sentencing involves a sentencing judge arriving at and imposing a sentence appropriate to the gravity of the offence that was committed (objective seriousness) and to the circumstances of the offender who committed it (subjective circumstances), taking into account the purposes of sentencing. Those purposes include punishment; protection of society; personal and public deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) and Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14:
“The purposes overlap and none of them can be considered in Isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”
15 The process, often referred to as intuitive synthesis, is one jn which the Court considers each of the factors as part of the objective or subjective circumstances (and in some situations both) to arrive at a result which seeks to achieve each of the purposes best.
16 In dealing with the objective and subjective circumstances of the offence and offender, the Court may have regard to the provisions of s 21A of the Act, although most of those criteria are factors to which a sentencing Court would, even in the absence of s 21A of the Act, have regard. Ultimately, the Court has a wide range of sentences that it may impose for contempt of Court: NCR Australia v Credit Connection [2005] NSWSC 1118.
17 The range of sentences includes imprisonment, periodic detention, home detention, community service orders, good behaviour bonds, dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention program, deferral of sentence, a suspended sentence, a fine, and the making of a non-association or a place-restriction order. Each of those is a potential punishment on Contemnors. The legislature has conferred on the Court the power to impose such punishment: In some instances, there are restrictions on the imposition of any such sentence.
18 In determining the sentence to be imposed, the Court is to consider the nature of the contempt committed: Commissioner for Fair Trading v Rixon (No 3)
[2014] NSWSC 1279, per Garling J. Those circumstances include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender’s culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed and an apology proffered; and the financial and personal circumstances of the offender when a fine is being sought: see also Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.
The nature and circumstances of the contempt
19 The circumstances immediately surrounding the contempt have been described above. So too has the background arising from the relationship between Ms Young, on the one hand, and Mr Young and the Contemnor, Ms Smith, on the other hand.
20 As at the time of the sentencing proceedings Ms Smith and Mr Young lived in the Property, a lavish apartment in Pyrmont, which, subject to the orders of the Court (Sackar J) is presently owned by Ms Smith as joint tenant with the trustee in bankruptcy of Mr Young. It is those premises that is the subject of a mortgage to Westpac, granted by Ms Smith, as a result of which Westpac provided a $5.8 million loan.
21 The monies that constituted the loan were provided to a corporate entity of which Ms Smith is the sole director and shareholder.
22 On the material before the Court the calculated estimate of the market value of the Property is between $4.6 million and $6.9 million (Affidavit Angela Skocic, 19 October 2016). I consider that calculation more reliable than the “as is” value of $4 million (Affidavit Krista Emma MacPherson at [4] and KEM-I thereto).
23 The plaintiff is owed approximately $3 million, pursuant to orders of this Court of 23 April 2013, by Mr Young. The orders followed the malicious prosecution proceedings reference to which is provided above: Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330. Those monies have not been paid. Mr Young transferred 50%, being his share in the Pyrmont premises to Ms Smith and, as earlier stated, rendered himself bankrupt.
24 The money received as a result of the mortgage of the relevant premises was utilised for a business venture by the Contemnor through her company, Smith & Smith Investments Pty Ltd. Westpac appointed receivers and sold the hotel purchase with those funds. Apparently, the sale returned an insufficient amount to satisfy the mortgage and Westpac had not released Ms Smith in respect of the mortgage on the Pyrmont premises.
25 The hotel was sold in November 2015 for approximately $6 million, which while in excess of the original maximum facility with Westpac of $5.8 million, represented a shortfall of approximately $800,000, presumably as a result of the cost of sale and enforcement and interest (Affidavit Krista Emma MacPherson at [11]-[12]).
26 As was made clear in the Judgment on Guilt, the Contemnor was well aware that the Court had restrained her from dealing with the property in question.
27 Ms Smith’s awareness of the conditions imposed upon her by the Court is evidenced by the application made by Ms Smith that the orders of the Court be replaced by an undertaking on her part not to deal with the Property. Notwithstanding that knowledge, and in spite of it, Ms Smith obtained a financial advantage by deliberately dealing with the Property in contravention of the orders of the Court. She did so, at (east in part, for the purpose of obtaining a financial advantage. It seems, although it is unnecessary to determine this question, that part of the rationale for Ms Smith’s conduct also related to malice against Ms Young, either on her own part or reflecting the malice and state of mind of Mr Young.
28 The contempt is a very serious one. It is a deliberate and contumacious breach of orders issued for the protection of a party and, in the process, dealing with property that belonged to the plaintiff in these proceedings.
29 Further, the overwhelming inference is that the entire scheme was designed to thwart the plaintiffs attempts to obtain from Mr Young the damages that the Court had awarded. It involved the circumvention of a number of orders of the Court. It involved the transfer of the Property so as to ensure that Mr Young had no assets in his name to which the Judgment debt could attach and it involved a deliberate breach of orders of the Court for the purpose of obtaining a business or commercial advantage.
30 I consider the contempt a serious one and to be categorised as both civil and criminal contempt. The conduct is well above the mid-range in objective seriousness for a contempt. Further, the semi-public disregard and disobedience of orders of the Court is a significant undermining of the authority of the Court and affects the administration of justice.
Subjective circumstances
31 The Contemnor has relied upon a number of exhibits, some of which have been referred to above. Ms MacPherson exhibited to her Affidavit the valuation on an “as is” value basis of the Property and media coverage relating to Ms Smith’s conduct and/or the Judgment on Guilt, together with other Judgments in the wider justiciable controversy. Part of the material upon which the Contemnor relies is an issue or issues relating to her health.
32 Ms Smith’s health issues are, on the evidence adduced in the proceedings, considerable. I have been provided a report by clinical psychotherapist, Ms Odelia Carmon and a report by Professor Frederick Ehrlich OAM. There are also reports from Dr Jerry Greenfield, endocrinologist, Dr Michael Talbot, Dr Nesran Varol, Dr Julie Epstein, consultant physician, reports on imaging to various doctors and reports from her general practitioner, Dr Dror Schmuelly.
33 The Contemnor refers to the fact that she has no criminal history. Nor has she previously been charged with any criminal offence. The contempt proceedings are the first ever contact with a penalty or punishment proceedings before a court.
34 It is necessary to deal with the medical issues, although, in so doing, the Court will seek not to disclose unnecessarily matters that are and ought to remain confidential. Some disclosure is necessary. In or about May 2010, Ms Smith was diagnosed with a 1.5 cm meningioma which encased the carotid artery causing some deformity and elongation. There was some inferior extension, but otherwise the cerebral MRI showed no abnormalities. The meningioma was removed and by May 2015 there was no evidence of any recurrence and her brain had stable appearance and no recurrence.
35 In 2009 Ms Smith suffered from a neurological disorder and seizures seemingly related to a multisystem failure after a mosquito bite in South Africa in December 2005. A number of treatments were attempted, which were unsuccessful but, ultimately, she was treated with Nutropin which resulted in her being able, once more, to walk and to give up reliance on a wheelchair, as was previously the situation. She will continue to have balance problems and to use a walking stick.
36 A summary of the conditions suffered by Ms Smith is contained in the report of Dr Schmuelly of 6 February 2015, which forms part of Ex 2 in the proceedings.
37 Professor Ehrlich’s report of 28 September 2016 also forms part of Ex 2. He refers to the multisystem breakdown relating to a virus from the mosquito bite and also to the history given to him of three heart attacks, a kidney failure, lung failure and major neurological problems as a consequence of which she spent three years in a wheelchair.
38 Professor Ehrlich referred to the effect of these illnesses on her business ventures which she was required, during that period, to “sell … at a loss” and “her feelings when having to deal with distress sales”. He also referred to a series of family tragedies, with numerous deaths, having to attend funerals and cope with relationship problems.
39 At the time, according to the history given to Professor Ehrlich, she was consuming approximately 2 bottles of wine each day and a half a bottle of single malt whiskey.
40 The family tragedies seem to have affected Ms Smith more as a consequence of her place in the Samoan community and the fact that members of her family of origin were the founding fathers of the Samoan Congregational Church. She also fulfils major familial and cultural duties assigned to her by her family (Ex 3).
41 Professor Ehrlich suggests that Ms Smith was “unaware of the Court order which was issued whilst she was overseas” and that “she was not made aware of it on her return”. With respect to Professor Ehrlich, he may have been given that history but the history is inconsistent with the events in Court and in the precincts of the Court, including applications made by her through counsel which disclose a clear understanding of the nature of the restrictions imposed upon her.
42 Professor Ehrlich suggests that “her capacity for processing information and applying effective judgement must be considered to have been significantly impaired”. The report was not the subject of cross-examination and I accept that opinion.
43 Nevertheless, the opinion is based upon some assumptions of fact, which are not borne out. The Court has already referred to the awareness by Ms Smith of the orders issued and her understanding of the orders that Issued. Further, the breakdown in her relationship with Mr Young, to which Ms Smith referred Professor Ehrlich, either did not occur at the time or was not at all acrimonious. In evidence as Annexure A to the Affidavit of Angela Skocic of 20 October 2016 are photographs of Ms Smith with Mr Young taken and posted on Facebook at a time during which it was said their relationship had “broken down”.
44 The other issue to which reference needs to be made is the report of clinical psychotherapist, Ms Odelia Carmon. I will not detail the history recited by Ms Carmon. Ms Smith did not give evidence. Some of that history would require direct evidence for it to be taken into account as part of the early childhood of Ms Smith, particularly the allegations of abuse from the age of nine until the age of 22 years.
45 I accept that Ms Smith’s actions may result, at least in part, from a life filled with responsibilities to others and unfulfilled personal expectations and her need to become secure, independent and self-sufficient. do so without necessarily accepting the history that may have led to that.
46 I also accept a degree of cultural tension that defines Ms Smith’s self-image and causes problems with self-management. The report from Ms Carmon expresses the view that Ms Smith genuinely regrets her action in breaching her obligations to the Court. Unfortunately, that was not the subject of any evidence from Ms Smith and J have significant doubts as to the degree of Ms Smith’s remorse.
Consideration
47 The Court accepts that there are a number of subjective mitigating factors in determining an appropriate sentence. I accept that the Contemnor has had a significant medical and psycho-social history, involving a brain tumour and a number of other illnesses, some of which were caused by an unfortunate viral infection from and/or in reaction to a mosquito bite in Africa.
48 Ms Smith was 46 years of age at the time of the contempt, namely February 2015. As has been made clear earlier in these reasons, the Contemnor has not before been before a court and is entitled to the leniency of a first offender. accept, also, that there was some impairment to Ms Smith’s capacity for executive decision making on a rational basis around the time of the contempt.
49 I do not accept that the Contemnor and Mr Les Young had severed their relationship at the time of the contempt or very soon thereafter. I do accept that the Contemnor deliberately and contumaciously contravened the order of the Court prohibiting her from dealing with the Property, which she mortgaged in order to obtain a benefit of $5.8 million (or the use of the funds for business purposes). I also accept that the breach of the order was part of a wider plan the effect of which was intended to deprive Ms Young of enforcing other Court orders, cocooning the assets into the name of the Contemnor and away from Mr Young, and thereby seeking to prevent Ms Young from enforcing her judgments.
50 Further, the conduct of transferring the property from Mr Young to the Contemnor (and, in the case of the Contemnor, accepting that transfer) and mortgaging the property, was done without any notice to any person, in circumstances where Ms Smith was at that time before the Court. The transactions were deliberately concealed from the Court and Ms Smith allowed the proceedings to continue on a false premise, known to her and which she hid from others. Part of that process included misleading Westpac as to the position of the apartment and its history.
51 It is clear that the Contemnor was motivated, in part, by financial gain and probably as a matter of malice towards Ms Young. The former has been proved beyond reasonable doubt. The latter is disregarded because it has not been proved to that required standard. The contempt (and the larger financial arrangement of which it formed part) was otherwise performed for the benefit of Mr Young, her then partner.
52 As previously stated, an assessment of the objective seriousness of the offence puts it above the mid-range in seriousness and it is clear that the contempt offence was not, in the least, technical. It was a wilful, deliberate and contumacious contempt being an intentional disobedience involving a conscious defiance of the authority of the Court and a deliberate attempt to subvert the orders imposed upon her.
53 As a consequence Ms Smith’s intentional conduct also involves the knowing defiance of the Court’s order and authority and the sentencing must achieve a purpose that involves both general and specific deterrence.
54 The consequence of the mental and other medical conditions of the Contemnor render the general and specific deterrence less significant than it might otherwise have been and render the Contemnor Jess appropriate as an example in relation to general deterrence. Ms Smith’s behaviour was described as “surreptitious” by the Court (Young v Smith (No 2) [2015] NSWSC 1267 at [36]-[37]. However, some general and specific deterrence is required. The medical conditions of the Contemnor, including her restricted mobility, make prison a more onerous punishment.
55 Further, the fact that the business for which Ms Smith borrowed the money did not succeed is a matter wholly unrelated to the contempt. The money was borrowed for the purpose of making a profit. The mortgage was effected in order to gain security for the borrowed monies.
56 Notwithstanding the comments in the report of Ms Odelia Carmon, there has been no apology or public expression of contrition.
57 Moreover, the publicity occasioned in relation to the conduct of Ms Smith js not an extra curial punishment. It is the natural result of conduct by a person in utter defiance of the orders of a court. In the absence of the rule of law, we would all live in a state of chaos. Courts adjudicate the rights of the members of society as between themselves. It is not for a member of society to snub that adjudication for self-interest.
58 If the published material about the conduct of Ms Smith was defamatory, then Ms Smith would have a cause of action. I do not consider the publicity given to the conduct of Ms Smith or the Judgments of the Court concerning her conduct to be a form of extra curial punishment. Nor, in this case, do consider that it ameliorates the punishment that otherwise ought to be imposed.
59 As a consequence, the Court shall impose a penalty. I reiterate the comments made in relation to financial penalties where the motive is financial gain. Democracy, as we know it, depends upon the rule of law and the obedience of members of the community of the orders of the Court.
60 Moreover, I do not accept the submission, put on behalf of Ms Smith, that no damage or prejudice has been suffered by the plaintiff. The stress associated with litigation of this kind and the years of litigation leading to the orders that ultimately were made by the Court, involve a stress beyond the stress of winning or losing and beyond the stress associated with the requirement to meet legal costs to enforce rights that ought not have needed to be litigated.
61 Notwithstanding the subjective circumstances to which Ms Smith has pleaded in relation to her conduct, I consider, bearing in mind both the objective and subjective circumstances of the offence, that a custodial sentence is warranted. I also consider that the only proper disincentive to other persons seeking to obtain a profit by the deliberate defiance of Court orders is to impose a monetary penalty.
62 The Court makes the following orders:
(1) The Court records a conviction for the offence of contempt committed by Josephine Aapa Smith (“the Contemnor”);
(2) The Court sentences the Contemnor to a term of imprisonment of 6 months, fixed term. The Court suspends execution of the whole of the sentence for a period of 6 months and directs that the Contemnor be released from custody on condition that she enter into a good behaviour bond for the said period of 6 months. The sentence will commence on and from 25 October 2017;
(3) The Court imposes a fine on the Contemnor of $50,000, in addition to the foregoing sentence of imprisonment;
(4) The Contemnor shall pay the plaintiffs costs of and incidental to these proceedings on an indemnity basis;
(5) Any party who seeks a different or special order as to costs may apply within seven (7) days of the date of this Judgment by filing a submission with the Associate to his Honour Justice Rothman. Such submission shall be no more than three (3) pages in length. Any party affected by any such application may reply to said application by a submission of the same length within 7 days of receipt of the application.
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A multimillion-dollar breakup involving a wealthy hotelier has claimed another scalp as his trustee in bankruptcy is left with a $350,000 legal bill.
Louise Thomson has been slammed by a court for running up legal costs and her own fees of hundreds of thousands of dollars when she didn’t need to while administering the bankrupt estate of hotelier Les Young. Meanwhile, four years after a court ordered Mr Young, 75, to pay his ex-wife Joanne Young $3 million, she is yet to see a cent of the money.
The saga began when Mr Young declared himself bankrupt after the Supreme Court in 2013 awarded Ms Young the payment.
The court found Mr Young had wrongly thrown her out of her home at his Wiley Park hotel, put down her two terriers Fluffy and Molly, maliciously told police she had stolen from him and taken off with her best friend, Josephine Smith.
Mr Young and Ms Smith lived in a $5 million harbour side penthouse but instead of putting it on the market to pay Ms Young, Ms Smith, whose jewellery alone has been valued at $850,000, was found to have defied a court order by putting it up as security for a $5.8 million loan for one of her companies to buy the Lucky Australian Hotel at St Marys.
Westpac Bank has since put the hotel into receivership after learning the Pyrmont apartment should never have been used as collateral.
Now Ms Thomson, who was appointed to sort out Mr Young’s bankruptcy, has been found by the Full Court of the Federal Court to have breached her duties as a trustee.
Despite knowing that Ms Smith was the main creditor of the estate, in one move criticised by the court Ms Thomson sent Ms Smith a report by snail mail which arrived five days after the date set for a deadline.
She could have sent it by email, the court found.
The court also found that she had improperly incurred around $350,000 in legal costs on top of $250,000 in remuneration and had done a deal with a litigation-funding agency who would get 35 per cent of what she recovered as part of the bankruptcy.
“That conduct was a breach of her statutory duties,” the court said.
The three Full Court judges said all her accounts dealing with Mr Young’s bankruptcy had to be signed off by the court and she has to personally pay the costs of the latest case, estimated to be around $350,000.
She concealed information and was obfuscating, the court said
A new trustee in bankruptcy has been appointed.
“Warring spouses, a de facto partner and money provide all the necessary ingredients for confrontation and disputes,” Justice Geoffrey Flick said.
“Add a bankrupt husband, his attempts to divest himself of property to his de facto partner and the inadequate discharge by a trustee of her duties as a trustee in bankruptcy and litigation becomes inevitable.” Ms Thomson had denied wrong doing.
JANET FIFE-YEOMANS
Chief Report
Daily Telegraph
In this matter Greg Walsh acted for Robert Hughes, the Appellant.
The High Court, by majority, dismissed an appeal form a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. A majority of the High Court held that tendency evidence admitted against the Appellant was admissible under s.97(1) of the Evidence Act 1995 (NSW).
The Appellant was arraigned in the District Court of New South Wales on an indictment that charged him, in 1 1 counts, with sexual offences committed against five female children under the age of 16 years. The Complainants were aged between 6 and 15 years at the time of the offences. The acts charged in each count and the circumstances of their commission varied. The Prosecution gave notice that it would seek to adduce evidence from each Complainant and from other women as ‘tendency evidence’. The Prosecution identified the tendencies of the Appellant that it sought to prove as including, first, the Appellant having a sexual interest in female children under the age of 16 years and, secondly, the Appellant using his relationships to obtain access to female children in order to engage in sexual activities with them.
Section 97(1)(b) of the Evidence Act excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind (‘tendency evidence ‘), unless the Court thinks that the tendency evidence will have “significant probative value”. The Appellant, applying for an order for separate trials, challenged the admissibility of the tendency evidence on the basis that it lacked sufficient similarity to the charged conduct to have ‘significant probative value’. The trial judge held that the probative value of the tendency evidence was significant in circumstances in which the fact in issue in each count was whether the charged sexual conduct occurred, and so admitted the evidence. The jury returned verdicts of guilty on 10 counts. The Appellant appealed his convictions to the Court of Criminal Appeal, relevantly contending that tendency evidence did not possess ‘significant probative value’. The Court dismissed the appeal.
By grant of special leave, the Appellant appealed to the High Court. The Court held, by majority, that s.97(l) of the Evidence Act does not condition the admission of tendency evidence on the Court’s assessment of operative features of similarity between the tendency evidence and the conduct in issue. In cases where it is the occurrence of the offence charged that is in issue, the majority reasoned that evidence will likely have significant probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.
The Court further held, by majority, that the tendency evidence adduced at the Appellant’s trial possessed ‘significant probative value’ in relation to each count for which it was
adduced. When considered together, the tendency evidence showed the Appellant’s tendency to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the Appellant’s conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal.
The Court further held by majority, that the tendency evidence adduced at the Appellant’s trial possessed ‘significant probative value’ in relation to each count for which it was adduced. When considered together, the tendency evidence showed the Appellant’s tendency to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the Appellant’s conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal.
Greg Walsh acted for Adam Filippone (‘The Accused”) who was charged with murdering Peter Wayne Murphy (“The Deceased”) on 17 August 2008. In the alterative, he was charged with one count of assisting Gregory Alan Russell (“Russell”), who had committed the murder in order to enable Russell to escape prosecution. Russell committed suicide on 7 May 2010 and was never charged for the homicide.
The Deceased resided in Central Australia. He had for some time lived and worked in Yuendumu Community. In the six (6) weeks prior to his death he had been living in Alice Springs.
The Deceased went missing on or about 17 August 2008. The Crown case was that between August 2008 and May 2010 Adam Filippone and Russell had relocated to Queensland in late 2008. Prior to his suicide, Russell spoke to his then partner, Wendy Hassett, who recorded that conversation. Russell admitted killng the Deceased and said that “Wog” (Adam Filippone) was present and involvéd in the killing. He marked the map depicting where the murder took place and where the Deceased’s body could be found. Police then located the Deceased remains in a shallow grave.
The autopsy established that the Deceased suffered two bullet holes to the left side of his skull and blunt force trauma to his left cheek.
Adam Filippone was extradited to the Northem Territory from Queensland on 15 May 2010. According to Sergeant Richardson, who had taken over the “cold case” investigation against Adam Filippone, he the Accused had given a hypothetical scenario in which though not responsible for the murder was present when the Deceased was killed. That conversation was not recorded.
The Crown provided Notices under s.67 of the Evidence (National Uniform Legislation) Act (NT) (“UEA”) of the Crown’s intention to adduce hearsay evidence. Objection was taken to the admission of part of the evidence including the alleged verbal conversation on 15 May 2010 between Adam Filippone and Richardson.
In the course of voir dire, a number of crown witnesses gave evidence. These were Gemma Beattie, Peter Goodwin, Tamara Murphy, Wendy Hassett and Detective Sergeant David Richardson. Blokland J set out in her judgment the outline of facts giving rise to the issues to be determined on the voir dire (9-54).
The evidence disclosed that Tamara Murphy, the wife of the Deceased, had spoken to Russell on a number of occasions and was highly critical of the Deceased. She said to Russell “Somebody needs to bump him off but he was that much of a tightass, he only had a $100, 000 life insurance policy”. The Deceased told Tamara Murphy that it would cost $10,000 to “knock off” the Deceased.
On 18 June 2008 Russell handed Tamara Murphy a small silver hand gun wrapped in a shirt. She placed it in a safe in her bedroom. Her boyfriend, Adam Moore, and her son Lee Murphy both saw the pistol in that safe.
The Deceased was a heavy gambler and was also involved in drugs. Russell told others that the Deceased owed him money.
On 17 August 2008, at about 8:00am, Adam Filippone, Steve Williams, Rodney Mosley and Thomas Spence, started working at the Target project “topping” floors. At about 9:00am Russell received the firearm from Tamara Murphy. He told her that he was going to go to 17 Standley Crescent to do his washing. Her Honour then sets out in detail the facts as they unfolded as it were. On 17 August 2008 the Deceased asserted that he was working at the Target project from about 7:30am-8:00am until 5:30pm-6:00pm. He thus could not have accompanied Russell in picking him up from the Town and County Hotel and taking him approximately 90 odd kilometres to the Plenty Highway where he was assaulted and shot. Telstra records showed that there were no calls made by the Accused on his mobile phone between 12:02pm and 3: 14pm. According to Steve Williams the group worked half a day and they did not finish at the site until between 1:00pm and 2:00pm. The security guard on the site confirmed no workmen were present at the site when he inspected it at 2:00pm.
According to Leisa Ford, at about 1:30pm, she saw Russell’s vehicle travelling on the Stuart Highway and two other males in the front of the vehicle. She identified two of the males as Russell and Adam Filippone.
As her Honour set out in the judgment, Gemma Beattie and Wendy Hassett played active roles in respect of cleaning the possible murder weapon and it being buried in a shed floor at Wendy Hassett’s home.
The Crown’s case that the Accused and Russell were good mates and frequently had contact with each other.
Adam Filippone was arrested in Queensland on 1 1 May 2010 and extradited to Alice Springs. On the plane to Alice Springs, Detective Richardson alleged that he spoke to Adam Filippone, who in effect was present when the Deceased was killed by Russell.
Blokland J referred to Conway v The Queen [2000] FCA 461; (2000) 98 FCA 204 and the High Court decision in Sio v The Oueen [2016] HCA 32 at [68], [70] and [71].
Blokland J excluded a number of items in the hearsay Notices. In respect of the representations made by Russell to Wendy Hassett on or about 7 May 2010 that he, Russell, had killed the Deceased and that the Accused had helped him, her Honour said:
“Further, the way the recorded conversation commenced reeks of a setup or staged conversation, “Hassett: What happened? Tell me. I ‘m going through hell Greg… with… You fuckin gotta tell me what’s happened. Be honest. I know someone else was with you. What happened? Just tell me “.
Her Honour made a finding that Wendy Hassett had not satisfactorily explained why the conversation commenced in this manner. Her diary notes indicate detailed interactions with Police including a discussion to the effect that she may go to prison, that she knew Police had spoken to others including Adam Filippone and that she would help Police obtain a confession from Russell. Her Honour was not satisfied as to the reliability of the circumstances in which any of the representations against Adam Filippone were made. In fact her Honour found that the representations were made positively unreliable. Her Honour noted that in Sio it is not the truthfulness of the witness or the representation that this is the focus but rather the circumstance in which the representation is made.
In respect of the conversation between Sergeant Richardson and Adam Filippone, on 15 May 2010, her Honour rejected the admission of this conversation. The circumstances in which the alleged conversation purportedly took place were indeed extraordinary. Sergeant Richardson took no note of the alleged conversation in the plane between himself and Adam Filippone. According to Richardson he told Filippone that he would only record the conversation in an interview. The Accused told him that he wanted to speak to his Lawyer, Richardson arrived back in Alice Springs with the Accused on the afternoon of 15 May 2010. He made no note of the conversation (according to Richardson he was being fair as he could to the Accused). Richardson in the voir dire said that he was not relying on the conversation. He didn’t believe it was admissible. There was no record of him having told Detective Hamlyn about the conversation. At no time did he attempt to record an interview with the Accused.
Once they arrived in Alice Springs Adam Filippone was taken to the Alice Springs Watch House. There was no further attempt to obtain any record of the conversation on the plane which Richardson alleged that had taken place.
Sergeant Richardson did not attempt to use the evidence of the so called conversation at the bail hearing or committal hearing. He had every opportunity to do so. Sergeant Richardson gave evidence at the committal hearing against the Accused on Il October 2010. He gave no evidence of the conversation at the committal. The Accused was discharged at the conclusion of the committal proceedings. Sergeant Richardson did not tell the Prosecutor about the conversation as according to him he didn’t think it was admissible.
At the coronial inquest in April 2011 Sergeant Richardson gave no evidence of the conversation but was present when the Accused gave evidence. The Accused denied in his evidence he was present or involved in the killing. It was only at that time that Richardson reminded Counsel assisting the Coroner of the conversation in the aeroplane. He gave a note to Counsel assisting, on a piece of sticky paper, which can no longer be located. Sergeant Richardson made a statement on 27 August 2014 outlining the conversation. Her Honour referred to section 142(1) Police Administration Act (NT) that evidence of an admission by a suspect made to a Police Officer is not admissible as part of the prosecution case except in circumstances provided for in s 142(1)(a) and (b). that is The confession or admission will be admissible if, in the circumstances provided for in (a), the substance of the confession or admission is confirmed by the person concemed, and with respect to (a) and (b) the confirmation or admission was electronically recorded and that recording is available to be tendered. Admissions outside the scope of 142 (1) (a) and (b) will note be will not be admissible unless the Court exercises a discretion in favour of admission under s. 143. Her Honour rejected the admission of the conversation that was alleged to have taken place on the aeroplane.
NTNews – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court
News.com – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court
John Barbanera is the oldest son of Antonio Barbanera and Maria Barbanera. Antonio died on 3 1 October 2014 and Maria November 2009.
John has three younger siblings Nunzia, Peter and Angela. Angela died in April 2015 and is survived by her husband Nick and their only child Giuliana.
John was excluded from his father’s will and he brought proceedings under the succession act for provision out of his late father’s estate, Greg Walsh acted on his behalf.
The hearing was heard and determined by His Honour Justice Slattery of the Supreme Court NSW Sydney.
His Honour heard evidence over two days, 12 and 13 December 2016. There is no doubting, that the proceedings were bound to involve a recounting of difficult emotional issues involving the lives of John and his siblings.
John over many years was an extremely hard worker and quite successful businessman. He was married to Pina and they have two children.
His Honour has set out in detail in his judgement the history of home life in the family home in Haberfield between 1976 to 1991.
His Honour observed that John as the first born in the family regarded himself as having a solemn duty and entitlement and as such this caused him to be regarded “the role is giving him authority to control the personal lives of his sibling’s particular of his sisters”. His Honour details a number of life events which had significantly impacted upon John and his siblings over so many years.
John’s late father attached a statutory declaration his will dated 23 April 2008. His Honour referred to the contents of that Statutory Declaration and judgement.
His honour referred to other events including visits to his late mother before her death in 2009 and what occurred at his mother’s funeral in November 2009.
Justice Slattery noted the deletion of any reference to John from Maria’s funeral documents and made a finding that he did not accept that there was any reasonable basis for Peter and Nancy to fear what John might do at his mother’s funeral.
At his father’s funeral once again there was no mention of John and this clearly the impact of public humiliation to John His Honour made reference to the back cover of the mass book for his late father’s funeral omitting to making reference to John. The exclusion of John was noted by His Honour as follows:
“caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanna Barbanera, orgoglioso nono di Giuliana, Antonia, Leonardo, Donatella, Dante. …”
Justice Slattery set out the applicable legal principals in particular that of Singer v Berghouse (No.2) (1994) 181 CLR 201. His Honour then examined in detail John’s financial and personal position. His net position was $5076502.00.
His Honour also referred in detail to the financial position to John’s siblings and the health problems of Angela’s husband.
His Honour made a finding that John’s summons should be dismissed subject to further argument as to what costs orders are conveyed.
SMH – Warring children ignore judge’s warning about fight over father’s will
Adam Filippone was charged with murder and being accessory after the fact of murder arising from the death of Peter Murphy on Sunday 17 August 2008.
Greg Walsh represented Adam Filippone in the successfully defence of these charges which were heard over five (5) weeks in a trial conducted in the Supreme Court of the Northern Territory at Alice Springs. The trial was presided over by Justice Blokland and a Jury.
The charges against Adam Filippone had an extraordinary history as he had been, years earlier, cleared at a committal hearing conducted in Darwin. Police were successful in obtaining a coronial inquest and in 2013 Adam Filippone was charged with murder of being accessory after the fact by x-officio indictment. The killer of Peter Murphy was Greg Russell, an acquaintance of Adam Filippone, who worked as a tiler together with his wife Donna in Alice Springs and various other places in the Northern Territory. The Crown theory was that Adam Filippone, because of his closeness of his relationship to Greg Russell, was involved in the killing or otherwise assisted him after the killing.
On the day of the disappearance ofPeter Murphy, Adam Filippone was working at the Target Plaza redevelopment at Alice Springs as a tiler. He started work around 7:30am and was still at the plaza until about 5:30pm to 6:00pm. The Crown’s theory was that Greg Russell and the Accused had met Peter Murphy sometime just after 1:00pm and had driven him from Alice Springs approximately 95kms away to the Plenty Highway where he was assaulted, killed and then buried. They then returned to Alice Springs arriving at about 3:12pm. If the Accused’s alibi was correct he could not have been present when Peter Murphy was murdered.
In order to obtain evidence against Mr Filippone a Senior Police Officer, Detective Sergeant
Richardson, went to extraordinary lengths to co-opt on Wendy Hassett, the then partner of
Greg Russell, to make admissions not only against himself but also against Adam “Wog” Filippone. Wendy Hassett who had been actively involved in cleaning a gun that may have been used in the murder at the direction of Greg Russell together with his daughter Gemma Beattie had been alerted to reward money being available by Richardson. In lengthy conversations, none of which were recorded or a note made, Richardson played a central role in influencing Hassett to purchase a recorder and then record a dying declaration of Greg Supreme Court ofthe Northern Territory
Russell. He drew a map identiWing the approximate burial site and in what could only be termed and orchestrated conversation implicated Adam Filippone being present. The next morning when Hassett left their house Russell took his own life in the garage. Hassett returned home with her mother in the car and ran over Russell’s body.
The Crown case relied upon a “Motley” of witnesses including the estranged wife of Peter Murphy, one Tamara Murphy. She had secreted a gun for Greg Russell who had lived at her house for some time. She did so even though she had children in the house. She gave to Greg Russell the gun on the morning of 17 August 2008. She had spoken to Greg Russell about her estranged husband including discussions with him involving his death.
Tamara Murphy had actively encouraged Greg Russell yet was never charged with any criminal offence. Her evidence was severely undermined in a withering cross examination by Phillip Boulten SC with whom Greg Walsh appeared in the trial. She, like many of the Crown witnesses, were utterly destroyed in cross examination and in particular as to her motives against her estranged husband Peter Murphy. There was no doubting that she had a romantic interest in Greg Russell and even denied a photograph which clearly showed her on the bonnet of Greg Russell’s car pleading with him not to leave her home during her birthday party and her ‘undying’ love for him.
A critical part of the Crown case was the reliance of the Crown upon tower telephone records. According to the Crown Prosecutor, David Morters, these demonstrated conclusively that the Accused was not working at the plaza site on the afternoon of 17 August 2008. However experts called by the Crown conceded that this was a real possibility that having regard to the configuration of the towers at Alice Springs, mobile phone calls could be received which could not conclusively establish where the call had emanated from. This fact was always known to investigating Police and the Crown Prosecutor. Remarkably, investigating Police did not seek to obtain critical phone tower records relating to Peter Murphy’s phone nor other witnesses who were working with Adam Filippone on the 17th of August 2008. These records were in existence up until approximately 2015 and despite the investigations being ongoing for many years, Police conveniently took no steps to obtain these vital records.
Adam Filippone’s wife Donna gave evidence. The Jury deliberated after lengthy directions by Justice Blokland and after approximately a day and a half returned their verdicts of not guilty as to each of the charges.
NTNews – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court
News.com – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court