Title MBW

R v Crawford (Unreported) Flannery DCJ 1 November 2018

R v Crawford (unrep) Flannery DCJ 1 November 2018 – permanent stay of indictment In R v Hakim [1981] 41 A Crim R 372 Lee J said “it would be out of accord with common humanity” to allow the trial to proceed.

In this case, Greg Walsh appeared for Vincent Crawford, who is 86 years of age. He had severe dementia and was in a “vegetative state, barley rousable, he has no capacity to communicate or alternatively, if he does, to communicate in a rational sense.”

He was completely dependent on nursing care for mobility and is verbally and physically disruptive, aggressive and prone to violent outbursts.

The Prosecution proposed that notwithstanding Mr Crawford’s condition as expressed by Dr Roberts, Forensic Psychiatrist, that he could be brought to Court and the special trial could proceed. This was not withstanding the evidence of the Director of the Nursing Home that he would require a fully body lifting machine and three staff and he would be very confused in the Court environment and prone to aggressive and disruptive outbursts.

The alleged offences were committed between 30-35 years ago. The Complainant first complained to Police on 29 December 2014 and though a statement was taken from him, no further active investigation was undertaken until Detective Tyrell spoke to him on 6 October 2015.

The Accused was arrested and charged on 22 April 2016 despite the fact he had severe dementia and could not answer any charges or defend himself in any way.

If the Accused had been spoken to shortly after 29 December 2014, he would have some capacity to answer the charges and defend himself. However, on 18 September 2015, he suffered a major stroke which led him to develop severe dementia. A critical witness was not interviewed.

Detective Tyrell was cross-examined by Greg Walsh and in cross-examination, agreed that though an important witness, Sister Elizabeth was alive, she was not spoken to. The reason for this was that the Complainant had indicated to the Detective that he didn’t want any statement taken from her. The Detective made no enquiries as to the whereabouts of Sister Elizabeth either via the RTA System or a search of the Police System.

The Applicant for a Permanent Stay of the hearing was heard by Her Honour Judge Flannery of the District Court. Greg Walsh did not simply rely upon the 30-35 years delay, but a number of overlapping features including the prejudice which also occurred in the context of the Accused’s medical condition. See McDonald v R [2016] VSCA 304.

Flannery DCJ referred to the decisions of Jago v District Court [1989] 87 ALR 577, Subramaniam v R [2004] 211 ALR 1, R v Zvonaric [2001] NSWCCA 505.

Greg Walsh argued that Zvonaric required an accused to be present for his arraignment and that it was not adequate that this could be done by the Evidence (Audio and Audio Visual Links) Act as contended by the Crown.

In Zvonaric, Justice Adams, with whom Spigelman CJ and Sully J agreed, emphasised that a special hearing required strict compliance with procedure, including that the Accused be present for his arraignment.

Flannery DCJ referred to s.21 of the Mental Health (Forensic Provisions) Act which provides “except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.”  Her Honour held that she was satisfied that the Accused should be present, not just for the arraignment, but the whole of the special hearing unless he has waived his right to be present.

A feature that Her Honour also considered was that of prejudice being one of much significance because of the major stroke suffered by the Accused in combination with the failure of investigating Police to properly investigate the allegations against the Accused. The outcome of the special hearing was also a matter to be considered. Her Honour also referred to the observations of Adams J in Littler [2001] NSWCCA 173.

The special hearing was permanently stayed.

AB v Judaical Commission of NSW (Conduct Division) 2018 NSWCA 264

AB v Judaical Commission of NSW (Conduct Division) 2018 NSWCA 264 AB, a Local Court Magistrate, was the subject of complaint to the Judicial Commission of NSW and in turn referred to the Conduct Division. Pursuant to s.24(l) of the Judicial Officers Act the Conduct Division “May hold hearings in connection with the complaint”. On 8 June 2018 the Conduct Division directed that a hearing be held and affixed the dates for the hearing. Pursuant to s.24(2) the Conduct Division may determine that a hearing “be held in public or in private”.  On 8 October 2018 the Conduct Division determined that the hearing should be held in public. AB appealed to the NSW Court of Appeal from the decision of the Conduct Division. The Court, comprised of Basten JA; Meagher JA and Gleeson JA, dismissed the summons seeking judicial review of the decision of the Conduct Division to hold a hearing in public. 1 Eleven grounds of review were relied upon by AB. It was argued that the Conduct Division “plainly fell into error by wrongly construing s. 24(2)” and in so doing “failed to consider the purpose of the text of s.24(2) in its proper context within the operation of the Judicial Officers Act”. The Court held that grounds 1 and 5 were without substance and that the Conduct Division dealt with the power to determine whether a hearing be held in public or private properly. Grounds 2 and 3 were also rejected and the Court found that the Conduct Division did not conclude that it had made a constraining order at some point which had no power to undo the order: it was patently more concerned about the effect of failing to make such an order, which was the course that took over the objection in the applicant.2 Ground 4 alleged that the Conduct Division “incorrectly applied the principles of ‘open justice’ to an administrative rather than judicial context”. The Court observed that an incorrect application of a legal principle does not necessarily involve jurisdictional error. Further, that giving ‘too much weight’ to a permissible consideration does not usually indicate jurisdictional error. Their Honours referred to the observations of Spigelman CJ in Bruce v Cole3  that the role of the Conduct Division was to provide a procedural strength, reinforced in the principle of judicial independence, in the system for maintaining the integrity of the judiciary pursuant to which “from the passage of the act of settlement (1700) Eng” it has been accepted that judicial officers cannot be removed except by exceptional measures involving action by both the executive and the legislature.4 The Court also rejected Ground 6 of ‘public interest’. The Court at [54] observed “the term ‘Public interest’ has no precise meaning. It is protean and will take its possible meanings from the context in which it is used. In fact each of the six criteria set out in the Guideline involves an element of the ‘public interest’”. Grounds 7, 8, 9, 10 and 11 were also rejected. 1 See AB v Judicial Commission of NSW (Conduct Division) [2018] NSWCA 264.        2 Para [35] 3 (1998) 45 NSWLR 163 At [166]-[177] 4 Bruce v Cole (1998) 45 NSWLR 163 At [166f]

Regina v XY

XY is a married woman who tragically had been diagnosed and treated for schizophrenia for many years. She is married to a loving and caring husband. The have one child who is an adult and a successful professional person. XY was originally diagnosed with schizophrenia in the early 1990’s. She was admitted to a hospital for a lengthy period of time and treated after her discharge with anti-psychotic medication. She continued taking medication from the early 1990’s until about 2015.

As she had been complying with her medication for so many years she decided most regrettably to cease taking her medication. She thought that she could function well without her medication. In the latter part of 2016 and in 2017 her condition commenced to deteriorate. She became disorientated and had irrational beliefs that people were trying to hurt her. She became obsessed with paranoid beliefs of being poisoned. Whatever she viewed on television to her was reality.

XY’s Husband and their Daughter were concerned about her behaviour and encouraged her to go and see her General Practitioner. Her local Doctor had been treating her for many years and recently retired and the Husband and Daughter thought that XY had returned to see her General Practitioner to be prescribed appropriate medication.

On the day of the incident XY had a delusional belief that her husband had been in some way sexually abusing their daughter. This was a delusional belief as no such history had occurred. XY in a psychotic episode accused her Husband of sexually abusing their Daughter and attacked him with a knife attempting to sever his penis. As a result he was seriously injured.

Neighbours intervened and Police were called and XY was arrested and taken to a psychiatric hospital where she remained for some months.

Greg Walsh was asked to help XY and he did so. She apart from her psychiatric illness had been an extremely devoted Wife and Mother and had worked very hard over many years to help her Husband but over recent times was suffering from a serious illness. She otherwise had a very loving and caring relationship with her Husband. There were concerns about bail and in particular Police insisted that XY had no contact with her Husband. This was problematic because they had otherwise, such a close and loving relationship. However, the incident concerned was an extremely serious one and she had been charged with very serious offences, including wounding with intent.

The psychiatric hospital concerned provided wonderful treatment and support to XY and there was established a community treatment program. Appropriate accommodation was organised for XY and a community nurse initially saw her on a frequent basis and she attended also readily upon her treating psychiatrist and a psychologist and general practitioner. She maintained strict compliance with her medication and accepted that she should never have stopped taking her medication and that this was the triggering problem for her predicament.

An application to vary her bail was heard at the Downing Centre Local Court before Magistrate Atkinson. Police opposed any contact between XY and her Husband. The Husband had attended Court and whilst in Court they instinctively embraced and could not be separated. The bail conditions were varied so as to permit XY to have supervised contact with her Husband and the supervisor was her Daughter.

The Defence of mental illness was raised and the matter went to Trial. Greg Walsh appeared for XY at Trial and she was examined by a Forensic Psychiatrist on behalf of the Prosecution and also Dr Olav Nielssen, who gave evidence for her. The diagnosis of schizophrenia was agreed upon and that the schizophrenia was the cause of her conduct in attacking her Husband. XY was found not guilty on the grounds of mental illness by Acting Judge Graham of the District Court and a number of orders were made requiring her to accept appropriate treatment and to comply with supervision in the community.

XY has continued to strictly adhere to her treatment regime and is now living back with her Husband whom she is providing support to.

Warren v Revesby Heights Ex-Servicemen’s Memorial Club Ltd [2001] NSWCA 465

In this matter Greg Walsh acted for the Appellant who was unsuccessful in Appeal arising from a decision of a District Court Judge to dismiss his claim for damages arising from injuries sustained in an organised billy-cart race on a roadway at Revesby.

The Appellant was watching from the side of the road. The billy-cart race was organised as a charity event and the issue on Appeal as at Trial was liability, namely determining who it was that had organised and controlled the event.

Held: per Stein JA (Mason P and Rolfe AJA agreeing):

1. The trial judge’s conclusion that the first respondent did not organise or control the event was open and consistent with the evidence.

2. It was open to the trial judge to find that the appellant had not established the second respondent was in control of or organised the billy cart race.

3. The trial judge’s finding that the third respondent did not organise or control the 1998 race was open and supported by evidence.

4. The finding that the appellant’s accident was not foreseeable was available on the evidence.

Per Mason P:

1. The failure to erect barriers that would have protected the class of spectators including the Appellant did not indicate a breach of the duty to exercise reasonable care with respect to the safety of spectators and competitors.

Herrick v Knowles [No. 2] [2015] NSWSC 54 (11 February 2015)

In this matter Greg Walsh acted for the defendant, Thomas Knowles, in Supreme Court Proceedings in which the Plaintiff, Ms Herrick, seeks damage from Trustees from Thomas Knowles and the Provincial of the Blessed Sacrament Congregation.

The Plaintiff had issued a Subpoena addressed to Dr Sharon McCullum who had been treating Mr Knowles. A Notice of Motion was filed seeking order that the Plaintiff not be permitted access to any material being produced in response to the Subpoena issued to Dr McCallum.

On 5 September 2014, Harrison AsJ made an order that the Plaintiff was refused access to the report of Dr McCallum dated 9 November 2011. See Herrick v Knowles [2014] NSWSC 1223.

An application was made for costs under S. 98 Civil Procedure Act 2005.

s.98 of the CPA gives the Court a broad direction to award costs , including ordering a party to proceed against the pay of the cost of the non-party. See Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129 per Barrett J at 16; Petrovski V Radin [2002] NSWSC 323 per Sperling J [14] [16]; O’Keith V Hayes Knight GTO Pty Ltd [2005] NSWFCA 1559 Nicholson J [24].

Harrison AsJ ordered the Plaintiff to pay Dr McCallum’s costs.


Alex Simmons sustained serious injuries as a result of an accident that occurred on 11 April 2007 whilst he was riding his bicycle through a car park adjacent to the St George Sailing Club.  He struck a boom gate that had been closed across a motor vehicle entrance to a car park.  The accident resulted in a below knee amputation of his left leg.

On 27 September 2013 Hall J delivered the principle judgment in the proceedings Simmons v Rockdale City Council [2013] NSWSC 1431.  An order was made that verdict and judgment be entered in favour of Alex Simmons against Rockdale Council in the sum of $928,000 and that judgment be in favour of the Club.

Mr Campbell SC and Mr Sheller appeared on behalf of Alex Simmons and Mr Watson SC appeared on behalf of the Council.  A dispute arose between the parties as to whether the Plaintiff was liable to pay the Club’s costs and if so should they be awarded on an indemnity basis from the date of the Club’s offer of compromise or whether Mr Simmons was entitled to a Bullock or Sanderson order in respect of his costs liability to the Club.

Liability to pay the Club’s cost on an indemnity basis

His Honour observed that an offer of compromise must be a real and genuine offer Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368.

On behalf of Mr Simmons it was submitted the Club’s offer was “an invitation to surrender” and His Honour particularised the basis of that submission.

Bullock or Sanderson Order

In the event that Mr Simmons was found liable to pay the costs of the Club he should be entitled to a Bullock or Sanderson Order from the Council.  The arguments of the Plaintiff were referred to by his Honour [para 16].

Council’s Submissions

The Council accepted that it is liable for the costs of both the Plaintiff and the Club.  It however opposed the Bullock or Sanderson Order and the basis of this was referred to by His Honour [para 21]

Reasonableness of not accepting the Offer of Compromise

Hall J observed that the reasonableness of the party refusing an offer amounts to an important feature in determining whether an order for indemnity costs should be made.  The reasonableness must be assessed as at the date of the offer and without the benefit of hindsight: Barakat v Bazdarova [20102] NSWCA 140.

His Honour made a finding that given the lack of clarity on the material available to the Plaintiff as to the arrangement between the Council and the Club, he did not consider the Plaintiff’s failure to accept the Offer of Compromise can be regarded as unreasonable [para 63].

Absence of Information to Support the Club’s offer requiring capitulation by the Plaintiff

His Honour found that he did not consider the Plaintiff had acted unreasonably in not accepting the Club’s Offer of Compromise.  See Leichhardt Municipal Council v Green [2004] NSWCA 341.

Whether a Bullock or Sanderson Order should be made

His Honour referred to Gould v Vaggelas (1985) 157 CLR 215.  His Honour made a finding that it was reasonable for the Plaintiff to have sued the Club [para 79].

The conduct of the unsuccessful defendant, the Council

His Honour referred to an Affidavit sworn by Greg Walsh on 21 November 2013 which relied upon his earlier Affidavit of 26 October 2010.  Walsh referred to evidentiary statements of James Garcia a cleaner that had been employed as a contractor by the Club and also a statement of the General Manager of the Club Keith Langelaar.  Mr Walsh stated that none of those statements mentioned what he refers to as “any rationale about when and why the gate was to be open.” [para 92].

His Honour noted that Mr Walsh stated in his Affidavit to his state of belief that it was possible that the Club was instructed in a manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility.    As such there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate.  Mr Walsh referred to Mr Lay’s evidence.  [paras 91-98].

His Honour ultimately was not satisfied that in the circumstances and at his discretion a Bullock or Sanderson Order ought to be made against the Club.

Reid v Wright [2014] NSWSC 1110

In this matter Greg Walsh acted for Christine Reid who claims damages for professional negligence against her former solicitor, Diane Wright.

The proceedings were commenced by statement of claim filed in the Supreme Court Sydney on 2 August 2013. By Notice of Motion filed 30 June 2014 the Defendant, Diane Wright sought an order that the proceedings be transferred to the Supreme Court of Queensland. The application was brought pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.

The application was heard by McCallum J. McCallum J observed that the principles to be applied in determining an application under the cross-vesting legislation was considered by the High Court in BHP Billiton Ltd v Schultz [2004] HCA 612; (2004) 221 CLR 400.

The Plaintiff retained the Defendant between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. The legal service was to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Ms Wright’s retainer was terminated in February 2011.

After the determination of the retainer a dispute arose as to the payment of Ms Wright’s fees. Ms Wright alleged that Ms Reid initially agreed to pay her fees as assessed in a “short form assessment” but that, after the assessment had been completed, she reneged. That dispute is the subject of the in the Magistrates Court of Queensland.

Her Honour noted the submission made by Mr Sheller on behalf of Ms Reid that there was significant unexplained delay in seeking a transfer. He relied upon r 44.5 of the Uniform Civil Procedure Rules 2005. Mr Curtin SC who appeared on behalf of Ms Wright contended that rules of court ought to be applied with a degree of flexibility.

McCallum J observed that the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That was not to say that it would be inevitably fatal to the success of a cross-vesting application but nevertheless it is an important matter to be taken into account.

Mr Sheller submitted to Her Honour that a cross-vesting application calls for a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.

McCallum J concluded   in the interests of justice the Supreme Court of New South Wales was the more appropriate court to determine the proceedings.

Turia Pitt and RacingThePlanet

Greg Walsh acted for Turia Pitt who was injured in a fire while competing in an Ultramarathon in the Kimberley region of Australia. Mr Walsh commenced proceedings and the case against RacingThePlanet was resolved on confidential terms satisfactory to both parties.

ABC News – Ultramarathon runner Turia Pitt, burnt during race in Kimberley, WA, reaches multi-million-dollar settlement.

The Guardian – Ultramarathon burns victim Turia Pitt settles with race organiser.

R v Reynolds and Small [2010] NSWSC 691

On the night of 30 April 2008 a group of friends attended the Commonwealth Hotel in Balmain to celebrate before the pub was handed to a new owner the next day. After the celebrations 14 people in various states of intoxication boarded a working boat to travel from Balmain to Watson’s Bay in order to deliver some keys to some people.

Mr Reynolds was the ‘skipper’ in charge of navigating the boat, though he handed the boat to Mr Small to navigate. Mr Small was heavily intoxicated and unfamiliar with navigating vessels. Tragically, he crashed the boat into another vessel on the harbour which resulted in 6 deaths.

Mr Walsh acted for Mr Small at trial and sentencing. Mr Small was convicted of 6 counts of dangerous navigation resulting in death and after considering the special circumstances raised by Mr Walsh and Counsel he was sentenced to a reduced sentence of 7 and a half years with a non-parole period of 5 years.

A full copy of the judgement can be read here


Motor Vehicle Accident – MV as next friend for MM and SM v D

On 4 August 1996 MM was a passenger (in utero) that was driven by her father and had been built, rebuilt and modified as Hot Rod.

The vehicle was being driven on an outer Western Sydney Road and whilst being driven by D in negotiating a right hand bend on the roadway he lost control of the motor vehicle and SM suffered catastrophic injuries.

SM was admitted to WestmeadHospital where she underwent emergency surgery.  She suffered horrific injuries including a brain injury and as a result was rendered totally blind.

MM was delivered by Caesarean Section suffering from Hyaline Membrane Disease, Intraventricular Haemorrhage and associated Hydrocephalus.    These conditions were causally related to her prematurity (25 weeks) and extremely low birth weight (714g).

MM remained as an inpatient at WestmeadHospital from the date of the accident until 14 October 1996.  She suffered from Post-haemorrhagic Hydrocephalus, Periventricular Leukomalacia, chronic lung disease and Retinopathy of prematurity.    Her mother remained in WestmeadHospital for nine months.

MM was eventually discharged into the care of devoted grandmother MV who had the onerous task of not only caring for her catastrophically injured daughter SM, but also her grand-daughter MM.

MV applied herself in an absolutely devoted way to the ongoing care and support of her tragically injured daughter and grand-daughter.

Greg Walsh was instructed to act for SM and MM.  The next friend was MV.  As a result of the devoted efforts of MV and due to intensive rehabilitative treatment SM was eventually able to live with her mother and daughter in the most difficult of circumstances.  Her disabilities were such that she required constant care and ongoing rehabilitative treatment.

MM experienced neurological problems including a blocked shunt.  She underwent operative care by her very experienced and devoted neurosurgeon, Dr Chaseling.

MM suffered from Cerebral Palsy and significant difficulties with her gait.  She was treated by many specialists and gradually improved due to the devoted efforts of these medical and other practitioners.

In time and indeed over many years MM gradually improved.  This no doubt was not only due to the tremendous efforts of her doctors and other specialists but the absolute devotion of her grandmother.

As a result of the complex nature of MM’s injuries and disabilities and despite proceedings being instituted in the Supreme Court relatively shortly after the accident, MM’s matter was not resolved until February 2014.  Thus Greg Walsh in effect had been acting for MM for approximately 16 years.

Although there were complex issues as to causation the matter was eventually resolved for an amount of $4 million plus out of pocket expenses.

AA v BB [2013] NSWSC1956

In this matter Greg Walsh acted for AA in a hearing before Barr AJ in the Supreme Court of NSW.

The Plaintiff is the daughter of the Defendant and CC.  She is now 19 years of age.  The Defendant began sexually interfering with the Plaintiff when she was five and continuing until she was twelve.  Plaintiff sought aggravated and exemplary damages, interest and costs.

The Defendant agreed with the facts pleaded including those relevant to aggravated damages.  He also agreed that exemplary damages were appropriate.

Barr AJ set out the particulars of the assaults pleaded including the effects on the Plaintiff.  His Honour acknowledged that the effects upon the Plaintiff had been profound and in particular noted the impact of the abuse upon the Plaintiff’s capacity to maintain relationships including her sibling and her mother.

His Honour noted the tragic history of the Plaintiff including attempting to kill herself by cutting her throat.  She was saved in emergency surgery but was committed to the care of mental health services.  Since 2011 the Plaintiff has suffered seizures and has descended into coma.

A report of Dr Colette Hourigan was entered as was a lengthy report of Dr Patricia Jungfer.

His Honour awarded the Plaintiff damages as follows:

  • General damages $200,000;
  • Future medical expenses $75,000;
  • Future economic loss $250,000;
  • Aggravated damages $100,000;
  • Exemplary damages $100,000.

Total $725,000.

R v Mendelow (Unreported) NSWDC per Flannery DCJ

In this matter Greg Walsh appeared for Jason Mendelow who was a security guard employed at the Ivy Nightclub in Sydney.

Jason Mendelow together with Mr Fenukitau and Mr Ntaras pleaded guilty in the Local Court to a charge of assault of Nicholas Barsoum in company and caused him actual bodily harm.

At 1.30am on Sunday 28 August 2011 the victim was celebrating a friend’s birthday at the Ivy Bar.  He was approached by his ex-girlfriend who hit him in the face before turning and walking off.  He grabbed his former girlfriend and was then grabbed by a security guard at the Ivy who told him he should not act that way and he should leave.  He attempted to argue.  The victim emerged from a lift on the ground floor and was followed down Ash Street by two security guards from the Ivy.  He was struck to the side of the face but did not see who had hit him as he was walking from Ash Street into Angel Place.  It was not alleged that Mr Fenukitau had any involvement in the initial assault upon the victim.

The victim spoke to friends on his mobile phone and these friends decided to return to the Ivy via Ash Street to confront the security guards.  The victim walked up to Mr Fenukitau and Mr Fenukitau was struck to the side of his face by the victim which caused a cut to the upper cheek near the eye.  Mr Fenukitau and another security guard then restrained the victim.

Mr Mendelow arrived and held friends of the victim back from approaching Mr Fenukitau and the victim.  Security guards restrained the victim.  The victim was dragged down a flight of stairs by a security guard.  He was picked up and placed on a stool opposite the security office.

Mr Fenukitau who had received some treatment for his eye approached the victim and punched him to the head with his right hand and then walked back to the security office.

Mr Ntaras approached the victim when he was seated on the chair and punched him twice in the groin area.  At this time Mr Mendelow stood opposite the victim with another security guard Mr Hendra.  Mr Hendra walked from the security office and kicked the victim to the head, upper body with his right foot as the victim sat on the stool.  Mr Ntaras then kicked and punched the victim and pulled him forward off the stool before kicking him twice.  Whilst Mr Ntaras was assaulting the victim, Mr Fenukitau walked form the office and approached the victim and punched him.  As the victim hunched over after this punch, Mr Ntaras approached the victim and kneed him twice.

The force of these blows caused the victim to fall off the stool.  As the victim crouched on the ground Mr Mendelow approached him and kicked him in the head with his left foot.

In submissions on behalf of Mr Mendelow, Greg Walsh urged the court to accept that Mr Mendelow’s behaviour was an example of human frailty rather than one of him and veracity.  Mr Mendelow was not actively involved in the incident upstairs and it was submitted that Her Honour could not be satisfied beyond reasonable doubt that Mr Mendelow threw the victim down the stairs.  The victim was acting violently as he was being escorted down the stairs, swearing and threatening security guards.  Her Honour’s principle concern would be what happened in the basement.

The Crown submitted that the conduct involved was of the worst category of offences as Mr Mendelow was employed to uphold the safety and security of patrons and staff.  The offence occurred in the company of co-offenders.

Her Honour was not satisfied beyond reasonable doubt that the victim was thrown down the stairs.  The CCTV footage did not assist.  In respect of Mr Walsh’s submission, Mr Mendelow ought to be sentenced on the basis of what he did and not what Mr Ntaras did.  Her Honour referred to the observations of Chief Justice King in R v Brougham (1986) SASR 187 at 191 where the Chief Justice said:

The true meaning of the provision emerges from the authorities just cited.  A person commits a robbery or an assault with intent in company, where that person participates in the robbery or assault, together with others, in the sense that the victim is confronted by the combined force or strength of two or more persons or that the forces of two or more persons are deployed against the victim.  It is not necessary that more than one participant actually strike or rob the victim.  It is sufficient that the accused and or more other participants be physically present for the common purpose of robbing or assaulting with intent and – physically participating if required.

Her Honour referred to the observations of Kirby J in R v Button (2009) NSWCCA 159:

What emerges from these cases? A number of propositions can be stated:

First, the statutory definition (s61J(2)(c)) requires that the offender be “in the company of another person or persons”. Secondly, the accused and such person, or persons, must share a common purpose (either to rob, or as here, sexually assault). Thirdly, the cases appear to assume that each participant is physically present. Fourthly, participation in the common purpose without being physically present (for example, as a look-out or as an accessory before the fact) is not enough.  Fifthly, the perspective of the victim (being confronted by the combined force or strength or two or more persons) is relevant, although not determinative. If two or more persons are present, and share the same purpose, they will be “in company”, even if the victim was unaware of the other person.

Her Honour was satisfied beyond reasonable doubt that Mr Mendelow was in company with Mr Ntaras when the latter assaulted the victim and therefore was responsible not only for his own assault, but also for Mr Ntaras’ assault on the victim.

Her Honour was not satisfied beyond reasonable doubt that all of what Mr Ntaras did was attributable to his wanting retribution for the victim assault on Mr Fenukitau, although she was satisfied beyond reasonable doubt it commenced for that reason.  She was satisfied that the reason for the prolonged nature of the attack by Mr Ntaras upon the victim was the extreme irritation he and Mr Mendelow felt towards the victim for his temerity and talking back to his attackers.  In circumstances where the victim had assaulted one their colleagues.

 Her Honour accepted that though Mr Mendelow’s crime was a very serious one, it was not in the worst category.

Her Honour was satisfied that the victim had suffered substantial harm.

Her Honour in dealing with Mr Mendelow’s subjective case noted that he had no prior criminal history and had a good work history and in particular excellent reputation as a security guard.  There was no pattern of anti-social conduct according to Dr Olav Neilssen.

Greg Walsh submitted that the offence was not planned or organised and there was no likelihood of any re-offending and his prospects of rehabilitation were good and he was remorseful.

Her Honour footnoted the sentence imposed by Berman DCJ upon Mr Hendra who had pleaded not guilty to assault occasioning actual bodily harm in company, but guilty of common assault after trial.  Mr Hendra was sentenced for kicking the victim to the stomach or chest whilst the victim was sitting on the stool.  Mr Hendra had given evidence in his trial that he had been acting in self defence.  His Honour was satisfied beyond reasonable doubt that if the victim had spat blood it was only in response to one of the security guards spitting at him.  Mr Hendra was found His Honour not only to lack remorse but that “his attitude towards his criminality” is remarkable, as he saw himself the victim in the matter.

His Honour imposed a sentence of 18 months imprisonment with a non-parole period of nine (9) months.

Mr Mendelow was convicted and sentenced to a term of imprisonment comprising a non-parole period 12 months and a total sentence of 24 months.

Mr Ntaras was convicted and sentenced to a non-parole period of 14 months and total sentence of 27 months.

Mr Fenukitau was convicted and was assessed for an Intensive Correction Order and subsequently sentenced on that basis.