Title 2018

R v SDD [2018] OCA 280

In this matter Greg Walsh appeared as Counsel for SDD (Appellant) in the Supreme Court at Queensland, Court of Appeal.

The Court was constituted by Sofronoff P and Gotterson JA and Boddice J.

The Appellant’s appeal arose from his conviction by a jury on counts 5 and 6 relating to viewing the Complainant naked in the shower. He had been acquitted of 11 other counts upon his trial at the District Court at Maryborough, such verdict being determined on 9 February 2018.

Greg Walsh represented the Appellant at trial and also in the appeal to the Supreme Court at Queensland, Court of Appeal. The basis of the appeal against conviction on these counts was that the verdicts were, in all the circumstances, unreasonable and or inconsistent.

Greg Walsh submitted that the verdicts to the jury on counts 5 and 6 are unreasonable on the ground that the Complainant obtain treatment from a psychologist for a significant period of time in respect of sensitive issues but raised no complaint with the psychologist at that time. It was in the context of the end of the marital relationship between the Appellant and the Complainant’s mother which also involved an incident of physical violence involving the Complainant’s brother. It was argued that steps taken by the Appellant and his wife to limit access to the Complainant’s iPhone and internet did not amount to a sexual interest by the Appellant and the Complainant. The Appellant was genuinely concerned for the Complainant’s welfare and he otherwise had a good relationship with her. Further, that in the context of the household, there were practical jokes played on each other by members of the family.

An important issue was that there was an internal lock on the bathroom door and such evidence was given by the Appellant and two other witnesses, as well as the photographs.

It was argued on behalf of the Appellant that the verdicts of not guilty in respect of all the other counts involved a rejection of the Complainant’s credit. As such, the verdicts on counts 5 and 6 were inconsistent with the verdicts of not guilty on the remaining counts.

Boddice J with whom Sofronoff P and Gotterson JA agreed, rejected the contention on behalf of the Appellant that there was an unreasonable verdict of an inconsistent verdict. The Complainant’s account as to the two bathroom incidents, the subject of verdicts of guilty, were supported by the mother’s evidence. His Honour placed particular evidence on there being no context as to counts 5 and 6 as to the playing of a joke by the Appellant on the Complainant.

In respect of inconsistent verdicts, his Honour referred to Holmes J (as the Chief Justice then was ) in R v Smillie [2002] QCA 341 at [28]; (2002) 134 A Crim R 100.

The Court granted leave to adduce the further evidence and the appeal to be dismissed.

R v SDD — District Court Maryborough

Greg Walsh represented SDD in respect of 13 counts of indecent dealing and 5 counts of observations of recordings in breach of privacy. The trial commenced at the District Court at Maryborough on Monday 5 February 2018 and concluded Friday 9 February 2018.

The Accused had pleaded not guilty to counts 1 to 13.

The Complainant had given a statement to Police on 12 March 2016 and was admitted into evidence under section 93A of the Evidence Act. The Complainant gave further evidence and was cross-examined in a pre-recorded hearing in June 2017. It was admitted under section 21 AK of the Evidence Act.

The Complainant was 14 years of age at the time of the alleged offending. The Accused was her step-father. The Accused and the Complainant and her mother and other children resided at Archer Drive, Hervey Bay. There were a number of counts in which the Accused walked into the bathroom, whilst the Complainant was having a shower and threw a cup of cold water over the top of the shower cubicle. The Accused laughed and walked out and the Complainant’s mother yelled out “she is a teenager you shouldn’t be doing that.” There was evidence that the Complainant performed practical jokes upon the Accused in the family home. Another incident involved the Accused throwing a jug of water over the Complainant while she was having a shower. The Complainant also had thrown water over the Accused when he was having a shower.

A number of the counts were alleged to have occurred when the Complainant requested that the Accused give her a massage. There was evidence that she had suffered from physical injuries and had for instance, a problem with her lower back. A number of massages were carried out in the presence of the Complainant’s mother. It was the Accused’s case that these massages were simply that and did not involve any inappropriate touching constituting indecent assaults. The Complainant gave evidence in respect of some of the incidents which were consistent with the Accused having given her a massage.

An important issue in the trial was that the Accused and the Complainant’s mother separated in difficult circumstances. Post separation, the Accused still communicated with the Complainant and she was quite positive in her contact communications with him.

The Complainant had over a number of years, attended upon a psychologist but there had been no complaint to that psychologist until after the Complainant’s parent’s marriage had broken down. The Complainant gave evidence that she did ask for massages as she regarded them as being harmless. It was only after a trip in a truck, driven by the Accused in January 2016, the Complainant first made a complaint to the psychologist.

There was evidence in the trial that the Complainant had been involved in a sexual relationship with a boy who lived nearby when the family was at Aldershot. The sexual relationship between the Complainant and this boy had come to the notice of the Accused and his then wife. This had been the subject of referral to the psychologist and discussions had taken place between the respective families of the boy, the Accused and his wife, to provide support to the Complainant and to convey to her inappropriate aspects of her relationship with the boy because of her age and other subjective difficulties. The Accused actually attended upon the psychologist and actively sought to identify relevant issues and to assist the Complainant and her mother in dealing with these. It was in this context that the Accused admitted that he had a number of conversations with the Complainant which were no more than he being genuinely concerned about her welfare. This was especially so in the context of the conversation in the truck when the Accused was giving a lift to the Complainant to a party which she wanted to attend.

The Accused denied ever going into the bathroom at Aldershot to look at the Complainant when she was in the shower. In mid-2009, a lock was put on the inside of the bathroom by the builders when the house was built by the Accused and his wife.

On 9 February 2018, the Jury acquitted the Accused on counts 1, 2, 3, 4, 7, 8, 9, 10, 11 and 13 and convicted him on counts 5 and 6 relating to viewing the Complainant naked in the shower at Aldershot.

Regina v PB

In May 2017, Greg Walsh represented PB (The Accused), in respect of 16 counts of sexual offences contrary to section 61M(1), 66F(6)(b), 61J(l) Crimes Act 1900.

The Complainant was cognitively impaired.

The Complainant lived at an address in very close proximity to the Accused. The families of the Complainant and the Accused were well known to each other and had socialised at their respective homes over many years. He allegations commenced at a time just prior to the Complainant’s birthday and involved alleged sexual assaults being carried out by the Accused in his home in close proximity to his wife. There were further allegations on the occasions of a birthday at a restaurant in Sydney. There were a number of counts alleged to have occurred at the Complainant’s home.

The Complainant suffered from a number of conditions including cognitive impairment, deficits in mental functioning and an intellectual disability.

There were a number of experts who gave evidence in the trial for both the Crown and the Defence such in respect of the intellectual functioning of the Complainant.

There were a number of pre-trial applications made by Greg Walsh to the Trial Judge, McLennan DCJ, including that relating to Tendency Evidence. His Honour ruled that only one incident, which was constituted by a count, could give rise to Tendency Evidence. There were other arguments as to Sexual Assault Communications Privilege in which certain records were contended to have substantial probative value upon the trial of the Accused. The trial took three (3) weeks and the Accused was called to give evidence together with a number of other Defence witnesses. Alibi evidence was relied upon in respect of some counts.

The Accused was acquitted in respect of each count.

R v Chute (No 4) [2018] ACTSC 259

On 11 September 2018, Mossop J delivered judgement as to the application for a permanent stay of the special hearing by John Chute. Greg Walsh appeared on behalf of the Accused. The history of the matter is set out in a number of judgments of the Supreme Court; R v Chute [2017] ACTSC 246; R v Chute (No 2) [2017] ACTSC 347; R v Chute (No 3) [2017] ACTSC 409.

On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone. On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury. On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay.

The basis of the application for a stay was previously set out in the judgement of Mossop J at [2] in R v Chute (No 2) [2017] ACTSC 347.

The history of the Accused was set out in Mr Walsh’s Affidavit of 10 October 2017.3

Mossop J at [22] set out the medical conditions suffered by the Accused. A further Affidavit of 7 November 2017 of Greg Walsh was referred to at length, including the opinion of a forensic psychiatrist, Dr John Roberts [27] – [32].

His Honour also referred to further Affidavits of Greg Walsh of 10 November 2017, 20 November 2017 and 1 December 2017.

His Honour referred to the High Court decision in Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 AT [52] – [53]. In Subramaniam v The Queen, the Applicant had relied upon her mental health preventing her from being able to give reliable testimony and that further prosecution of the proceedings could have resulted in a serious worsening of her mental health.

Greg Walsh also relied upon the decision of McDonald v The Queen [2016] VSCA 304; 263

A Crim R 356 at [57]. The factor that gave rise to error as found by the Victorian Court of Appeal in that case, was the trial judge had erred in putting aside consideration the likely outcome of the proceedings if the Applicant was found to have committed the offences [58].

Mossop J at [63] referred to the factor of unfairness and oppression requiring consideration of the community’s interest in bringing matters to trial. His Honour observed that it would only be in extreme circumstances where an abuse of process is established, to determine whether it is appropriate that any particular charge against any particular defendant proceeds: R v Smith [1995] VicRp 2; [1995] 1 VR 10 at [25].

His Honour placed particular emphasis on the descending judgment of Ferguson JA and the feature that the legislature had seen fit to establish process by which persons who were unfit to stand trial were the subject of a special hearing. His Honour ultimately made a finding that “to assess the question of whether unfairness is such as to amount to an abuse of process without recognition of the inherent features of that process would involve the subversion of the legislative scheme.”

Mossop J was also referred by Mr Walsh to the decision of TS v R [2014] NSWCCA 174 at [65]. In that case, Bellew J (with whom Leeming JA and Adams J agreed) found that the primary judge had erred because the appropriate question was whether or not a remedy was warranted in the particular circumstances of the applicant. At [56]-[57], Bellew J observed:

“The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.”

In addition, the overall effect of her Honour’s reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.”

A further fact in that case, was the fundamental unreliability of the Complainant’s evidence.  

Greg Walsh also relied upon the judgment of Arrivoli v R [2017] NSWDC 112.

That was a case in which Buscombe DCJ granted permanent stay in the context of historical sexual abuse by a member of the Catholic clergy who was 94 years of age at the time of the hearing of the application for a stay.

Another important issue that Mossop J addressed, was the requirement of the Accused to attend a special hearing. Greg Walsh submitted that having regard to the physical and psychological condition of the Accused, it was not probable that he had the capacity to attend, which was in accordance with the expert evidence of Dr Roberts and also the other medical evidence relied upon as referred to in the Walsh Affidavit. Section 316(1), provides that the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. Section 316(6) provides that “unless the Supreme Court otherwise orders, ” the accused shall have legal representation at a special hearing.

Mossop J referred to Lipohar v The Queen [1999] HCA 65; 200 CLR 485 at [69], in which the Court found there is “no trial in absentia at common law in the ordinary course ” His Honour referred to various specific statutory provisions, which authorise trials to proceed in the absence of the Accused. His Honour referred to Jenkins v Whittington [2017] NTSC 65 at [89]- [92] as to the circumstances in which a trial can be conducted in the absence of an Accused.

At [87], his Honour compared the Accused’s position to:

“how would the fairness of a trial be advanced by compelling someone who was delusional and uncomprehending of the process to be present during the trial? In this case, the situation is that the accused is unfit because he is unable to follow or adequately process the proceedings. In circumstances where no relevant forensic interest of the accused would be advanced by his presence at the hearing, the presence of a person who was unfit to plead does not appear to me to be an essential requirement of the special hearing process, notwithstanding the general principle in s 316(1 ) of the Crimes Act.”

His Honour ultimately found that there was no suggested reason as to the Accused being present including for an arraignment at the special hearing. His Honour dismissed the application for a permanent stay.

R v Chute (No 3) [2017] ACTSC

On 17 November 2017, Mossop J gave reasons for his conclusion that the fact that the procedure in s.316(2) of the Crimes Act 1900 (ACT) had been overlooked, did not avoid the obligation to determine whether or not the accused was capable of making an election to have a special hearing conducted as a trial by judge alone: see R v Chute (No 2) [2017] ACTSC 347. Greg Walsh appeared as Counsel for John Chute. An Affidavit of Mr Walsh dated 20 November 2017 was relied upon in the further hearing of the matter.

A forensic psychiatrist, Dr John Albert Roberts, gave evidence and his Honour had set out the psychiatrist’s findings in respect of an examination of the Accused at the age care facility where he resided.

Dr Roberts was of the opinion that the Accused was not capable, by virtue of his mental state, of appreciating matters that he would need to consider in coming to a decision in relation to the need for him to elect a judge alone trial or a trial by judge and jury.

Mossop J at [10], concluded that the evidence of Dr Roberts was consistent with the evidence of Mr Walsh, arising with his dealings with the Accused shortly before he was seen by Dr Roberts. His Honour was satisfied that the Accused is incapable of making an election to have his special hearing conducted by judge alone. His Honour then made a direction to the ACT Civil and Administrative Tribunal requiring the appointment of a guardian to consider whether to make an election.

R v Chute (No 2) [2017] ACTSC 347

In this matter Greg Walsh acted for Chute.

On 24 July 2017, Murrell CJ found that John Chute was unfit to plead to an indictment containing 16 counts; R v Chute [2017] ACTSC 246.

On 12 October 2017, the Accused sought an order that there be a permanent stay of the special hearing. Mossop J in R v Chute (No 2) [2017] ACTSC 347 at [2] set out the grounds of the application on behalf of the Accused. Greg Walsh appeared as Counsel for the Accused in respect of the hearing of the application.

On 15 and 16 November 2017, argument took place in relation to the application for a stay. In the course of the argument, it became apparent that following this decision of Murrell CJ, neither of the parties nor the Court had given consideration to the operation of s.316(2) Crimes Act. That permits a person who has been found unfit to plead to elect, either directly or via a guardian to have a special hearing conducted as a trial by judge alone as opposed to a trial by jury.

Mossop J considered the interrelationship between s.316(1)(2) Crimes Act and section 68A & B of the Supreme Court Act 1933 (ACT).

His Honour concluded that there were three reasons why s.68B does not qualify s.316 so as to preclude the making of election by or on behalf of a person who has been found unfit to plead in relation to “excluded offences “ within the meaning of s.68B.

In these circumstances, Mossop J did not determine the application for a stay and heard further submissions as to how to proceed in relation to the operation of s.316(2).


The Canbera Times – Ex-Marist brother John ‘Kostka’ Chute found unfit to plead to child sex abuse charges

Shalhoub v State of New South Wales [2017] NSWDC 363

Greg Walsh acted for Andrew Shalhoub, who was successful in his District Court Action Shalhoub v State of New South Wales [2017] NSWDC 363.

In this matter Greg Walsh acted for Andrew Shalhoub who on the 7th of June 2015 was 19 years of age. He was with a friend, Mustapha Neffati, at a gathering at a home in southern Sydney on the evening of Sunday 7 June 2015. At about 2:00am on Monday morning, a public holiday, Mr Nefffati contacted his brother Wassim Neffati, to come and collect him and Mr Shalhoub. When Wassim arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub was in the rear of the car. As they proceeded from the cul-de-sac onto David Road at about 2:20am, Police activated flashing lights and Mr Neffati pulled over. Mr Shalhoub, Wassim and Mustapha were in instructed by Police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times including blows to his head whilst he lay faced down on the ground, He was handcuffed, searched and eventually informed that he was under arrest. He was informed of his arrest at about 2:40am, allegedly for stalking a Police Officer. When the Police thereafter realized that he could not have been involved in any stalking, he remained under arrest and at 3:05am taken to a Police Station arriving at 3:25am. A police interview was conducted in connection with an investigation of “resist arrest”, no charges were laid and Mr Shalhoub was released from police custody later that morning at about 7:40am.

Wassim Neffati, had been awaken at about 2:00am to collect his brother and Mr Shalhoub. He proceeded behind a private motor vehicle driven by an off duty female officer who had just left Revesby Police Station in close proximity to where Wassim and his brother lived with their mother. Two officers namely, Troy Skinner and Matthew Poulton, also left Revesby Police Station at the end of their shifts. They observed the grey Lexus driven by Wassim Neffati make a U-turn and proceed behind the private vehicle known by them to be driven by the female officer. The private vehicle, followed by the Lexus, proceeded in a direct route to a nearby main road, Davies Road, where each car turned right, to the south. Skinner and Poulton formed the viewed that the Lexus was following and stalking the private vehicle driven by the off duty officer and telephoned the Police Station to report the suspected stalking. Other Police responded.

At about 3km from the Police Station, the private vehicle took an exit from Davies Road onto Clancy Street. Skinner saw a car on Clancy Street and assumed it was the private vehicle containing the female off duty officer that had taken the exit. The Lexus did not follow but continued a further 7km along Davies Road, Alfords Point Road which it became New Illawarra Road and ultimately to the cul-de-sac off David Road. Skinner and Poulton discussed the fact that the Lexus vehicle had stopped travelling behind the private vehicle. However, this factual observation by Skinner and Poulton was not relayed not any other Police Officer. Skinner and Poulton gave information to assist other on duty Police Officers to locate the grey Lexus.

The action was heard over 13 days by P Taylor SC DCJ. A critical issue that arose was the suspicion as to s.99(1) Law Enforcement (Powers and Responsibilities) Act 2002.

The issues

The State of New South Wales denied any assault and pleaded a lawful arrest. It was clear the Lexus had voluntarily pulled over in response to Police flashing lights. Whether this could constitute an arrest did not arise, as in submissions, the State’s case was that the Police had reasonable grounds to suspect that the Plaintiff had committed the offence of stalking for the purposes of s.99 of LEPRA. The people who conducted the physical arrest of the Plaintiff were the Constables who removed him from the vehicle. According to the State of New South Wales, the process began when they stopped the car. However “… but obviously at some point the actual arrest begins and that arrest begins when the Officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them”. The direction for the arrest was given by Mr Love and other Police Officers. Thus his Honour was not required to decide whether a direction to get out of the car constitutes an arrest. See State of New South Wales v Exton [2017] NSWCA 294.

Sub-section 99(2) of LEPRA, entitles an arresting Police Offcer to rely on the appropriate direction from another Police Officer. However the directing officer is precluded from giving a direction unless he or she satisfies the requirements of s.99(1). In the event that the directing officer does not satisfy the requirements of s.99(l), the directing officer (rather than the arresting officer) is liable as if the directing officer had committed the unlawful arrest.

Taylor DCJ held that the lawfulness of the exercise of the statutory power must depend upon the statutory conditions governing its exercise.

His Honour examined in detail the evidence of a number of Police Officers namely, Senior Constable Skinner, Senior Constable Poulton, Senior Constable Hurney, Constable Dunn, Constable Muir and Leading Senior Constable Love.

In respect of suspicion of stalking based on reasonable grounds, his Honour found at [21] that stalking itself is insufficient to establish the offence.

In respect of Senior Constable Skinner and Poulton, his Honour at [25] found that officers Skinner and Poulton were not the arresting officers nor did either of them direct the arrest. The arrest was affected by Constables Dunn and Muir and assisted by Senior Constable Hurney.

At [31] his Honour found that Officer Hurney was not the arresting officer. Officer Dunn was informed by an off-duty police officer was being followed home. Officer Dunn traveled with Officer Love and Senior Constable Casey to the scene with lights and sirens on. His Honour found that obviously Dunn was involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed, Officer Muir handcuffed Mr Shalhoub and Officer Dunn conducted a body search [32].

At [39] his Honour observed that Officer Dunn did not give evidence of holding any belief or suspicion that the occupants of the Lexus was stalking or had the requisite intent. Thus, he could not infer this belief or suspicion. At the time Officer Dunn got Shalhoub out of the car, he was told to do so and he had no “intention in his own mind” as to what he would once Mr Shalhoub was out of the car. Therefore Officer Dunn removed Mr Shalhoub from the car because he was told to do so by Officer Love. His Honour at [41] found that the removal of Mr Shalhoub by Officer Dunn forcefully from the car, was not based on a direction formally to arrest, detain, subdue or restrain Mr Shalhoub, nor on a reasonable based suspicion that he needed to do that under s.99(l) or (2) of LEPRA.

At [43] his Honour noted that there is an important distinction between a direction to “get them out of the car” and a direction to “arrest them” See State of New South Wales v Exton [2017] NSWCA 294.

In respect of Officer Muir, his Honour did not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground [49].

His Honour found that Officer Dunn and Officer Muir, forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Offcer Love. Mr Shalhoub was there after brought to the ground. Officer Dunn and Offcer Muir gave evidence of the direction by Officer Love, but on the direction found by his Honour, the arrest of Mr Shalhoub could not be justified by it.

His Honour at [56] found that the telephone call “concerning a suspect vehicle that may have been following a Police Officer” was not persuasive but Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s. 13 of the Crimes P VA Act.

At [59] his Honour made findings that:

  1. Neither Officer Muir and Dunn were directed to arrest Mr Shalhoub; and
  2. None of the Officers Love, Muir or Dunn suspected on reasonable grounds that Mr Shalhoub had committed an offence.

At [63] his Honour made a finding that no officer gave evidence concerning the reasonable necessity for the arrest.

The State of New South Wales pleaded that the specified reason for the arrest under s.99(l)(b) of LEPRA was “to stop the person committing or repeating the offence or committing another offence”. However no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence.

At [68] his Honour found that there was no obligation on a Plaintiff to plead to a defense. See Rule 14.27 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

The State argued that Mr Shalhoub in the Amended Statement of Claim had pleaded that at the time of the arrest that he, the Plaintiff, was not informed of the reason for his arrest despite asking Police on a number of occasions as to the reason why he was being arrested. According to the State, this limited the issue of unlawfulness of the arrest as to whether or not the Plaintiff was informed of the reason for his arrest, His Honour rejected this argument.

Informed of arrest as soon as reasonably practicable

A Police Officer who arrests a person but fails to give the frue reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587; State of NSW v McCarthy [201 5] NSWCA 153 at [78]; ss.201 and 202 ofLEPRA.

At [81] his Honour found that no explanation was given by Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car.

At [87] his Honour found that the Police approached the Lexus and that it had pulled over, was stationary and the occupants remained in the car. His Honour could see no reason why the occupants could not be informed at that time of the reason for them being stopped and being directed to get out of the car. The suspicion that they had recently been following a Police Officer from near Revesby Police Station and down Davies Road could have been readily and briefly stated.

At [89] an issue arose as to whether a failure to provide as soon as reasonably practicable a reason for the arrest could retrospectively render prior conduct unlawful. In the State of NSW v McCarthy [2015] NSWCA 153 at [78] and [79] it was found that “the lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information”.

Was reasonable force used

Reasonable force is no defence to the Plaintiffs claim if the arrest was otherwise unlawful. If contrary to his Honour’s findings, the arrest was lawful, the Police were still obliged to use reasonable force (see LEPRA, ss230, 231).

At [92] his Honour found that Officer Dunn struck the Plaintiff on the head on a number of occasions whilst Mr Shalhoub was lying face down on the ground. Officer Dunn described this as a “hammer strike “. Officer Dunn asserted that he did not intend to hit Mr Shalhoub on the side of the head. Officer Dunn noticed that Mr Shalhoub had blood on his mouth and some swelling on the right side of his face. His Honour found the evidence of Dunn to be difficult to accept.

The record of interview and photographs of the Plaintiff demonstrated observable facial and head injuries which came out of the incident. Officer Dunn was not a small man and he admitted to striking Mr Shalhoub on the head a “few times”, “at least twice”.

Officer Dunn conducted a personal search of Mr Shalhoub, after he was handcuffed. Mr Shalhoub gave evidence that the Police Officer felt his private parts, he said to Officer Dunn when Officer Dunn said “mate what’s there? ” “it’s my penis. “ Officer Dunn then undid his pants and started “taking my penis out and grabbed it and I started screaming at him and then he stopped it”.

His Honour referred to the record of interview and the fact that Officer Muir was present and saw everything. In the record of interview he said “that wasn’t me Andrew …yeah that wasn’t me Andrew”. Such an acknowledgment bore that the allegations made by the Plaintiff were truthful in the record of interview.

At [117] his Honour accepted that the Plaintiff was searched about his groin area, that his belt was removed and the top button of his jeans was undone and that Officer Dunn squeezed his penis “whilst scrunching his pockets”. His Honour made a finding that he was not satisfied of the manner of the search that was conducted involved only such force as was reasonable necessary.

Was the period of detention justified?

His Honour found that there was no basis to continue the Plaintiff’s arrest after 3:05am, by which time the Police were aware that he was not in the Lexus at the time of the suspected following of the off duty police officer.

Damages

His Honour gave lengthy reasons in respect of damages and referred to Zaravinos v The State of New South Wales (2004) 62 NSWLR 58 [2004] NSWCA 320 (another case in which Mr Walsh represented the Plaintiff). In Zaravinos the detention was 3 hours and 23 minutes of detention which was found to be “unnecessary, high handed, humiliating and unnecessarily long”.  His Honour awarded the following compensation:

  • Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages $35,000.00
  • Compensatory damages for assault and battery including aggravated damages $30,000.00
  • Exemplary damages $ 15,000.00
  • Interest $2,018.63
  • Total $82,018.63