Monthly Archive November 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.

The Law Society of New South Wales v Teps [2018] NSWCATOD 163

In this matter, Greg Walsh acted for Michael Teys, who was the subject of an application by the Law Society of NSW, that his name be removed from the roll of local lawyers. The matter was heard before K. O’Connor AM, ADCJ. [1]

The Law Society’s application was based upon allegations that the Respondent had:

  • Failed to remit monies to the Australia Taxation Office (ATO); o Failed to pay superannuation entitlements; and
  • Breach of s.260 Legal Profession Act

The Tribunal in its judgment set out the history of the matter.

The Respondent was the Shareholder of Teys Services Pty Ltd and he and his former wife, Michelle Anne Teys, were Directors of that Company. Between 25 March 2014 and 3 April 2014, the Respondent caused the transfer in the sun $130,300 to be made from various company ban accounts into the law practice’s trust account and over the trust ledger in the name of “funds held in trust for client, Teys, Michael”. By 3 April 2014, the Respondent had caused a total of $72,991.78 to be paid from the ledger account. This was for payroll or expenses.

In April 2014, the Respondent caused the sum of $58,208.22 to be paid from the ledger account to the new law practice for payments for essential services on its commencement. On 9 April 2014, Mr Roland Dean-Wilcox, of Insolvency Solutions, was appointed Voluntary Administrator of the Company.

On 9 April 2014 and 12 May 2014, the Respondent prepared a report as to affairs (RATA). This showed a deficiency of $867,467 including:

  • A liability to the ATO of $546,697.11;
  • A liability to employees of $155,864.42.

During the financial year ending June 2013, the Respondent caused the Company to pay dividends to Teys Services Pty Ltd in the sum of $309,167. In the same period, the Respondent caused the Company to forward the sum of $210,000 either to Ms Michell Teys or as a loan to Teys Services as dividends. The Respondent also caused the Company to pay dividends to Teys Services in the sum of $152,530. In the financial year ending 30 June 2013, the Respondent drew $280,333 in salary.

The Respondent admitted that he had failed to remit monies to the ATO and pay superannuation entitlements and breached s.260 of the Legal Profession Act.

The Respondent relied upon a number of affidavits and gave evidence to the Tribunal.

The Respondent’s case was that he had suffered from longstanding bipolar disorder. His marriage had broken down in circumstances of considerable stressors namely that he had come out as a gay man and this caused a considerable degree of stress and anxiety to him. This aggravated his bipolar 2 disorder.

The Respondent had sought to obtain advice from an experienced and confident expert and reviewed the law practice’s operations and took steps to reduce overheads. He had introduced capital for the legal practice from his mother, Mr and Mrs Beem and Mr Knox.

Greg Walsh sought on the Respondent’s behalf to distinguish the circumstances of the Respondent’s case for those relied upon by the Applicant including that of Council of The Law Society of New South Wales v Wehbe [2018] NSWCATOD 14.

It was further contended that the Respondent did not act dishonestly and Greg Walsh relied upon the observations of Beech-Jones Barakat v The Law Society of New South Wales [2014] NSWSC 773.

The Tribunal found the Respondent’s conduct constituted professional misconduct and that he was not a fit and proper person to remain on the roll of local lawyers. The Tribunal was satisfied that the Respondent’s conduct in the 2012 financial year evidences that he preferred the interest of himself and his family over his statutory obligations including the obligation to pay tax. The Tribunal was also satisfied that the Respondent breached section 260 of the Legal Profession Act

  1. K. O’Connor was replaced after the matter was initially the subject of application due to ill health.

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.