Police v Christian Petrella

In this matter, Greg Walsh acted for Christian Petrella.

On 10 March 2020, Christian Petrella was acquitted of each of the charges:

  • Intention to Choke Person with Recklessness on 21 April 2019
  • Assault Occasioning Actual Bodily Harm on 2 June 2019
  • Destroy or Damage Property in April 2019.

The conclusion of the Hearing Application was made by Greg Walsh, on behalf of Mr Petrella for costs.

The Application was made under Section 214(l)(a) — (d), which requires that a party showed that their case falls within exceptions to the General Rule in Section 214(1) that “professional costs are not to be awarded in favour of an accused person in summary proceedings”

Magistrate Baptie had the benefit of Written Submissions. The Prosecutor contended that Constable Swain, in interviewing repeatedly the Complainant in the DEVEC interview, was seeking to clarify the separate incidents.

Greg Walsh had contended that the Complainant’s history was utterly unreliable and inconsistent and that the Police were readily on notice of such features in the Complainant’s case.

The Learned Magistrate noted the Complainant’s medical history, including Cluster B behavioural traits, which involved acts of self-strangulation. Her Honour referred to Kanan v Australian Postal and Telecommunications Union [1992/ FCA 539, in which His Honour Justice Wilcox said: “but where it appears that, on the Applicant’s own version of the facts, it ‘s clear the proceedings must fail, it may probably be said that proceedings makes a reasonable cause”.

Her Honour noted that the medical issues were not the only feature relied upon by Mr Walsh, but also the obvious concerns of the Police, in respect of the Complainant’s credit and reliability. In addition to that feature, the very significant injuries that the Complainant had inflicted upon the Accused.

Her Honour also made reference to J v The DPP [2000/ NSW SC 1092, in which Justice Hidden said: “An investigation which fails to meet optimum standards is not necessarily unreasonable. Equally, it might fairly be classed as unreasonable, even though it does not fall grossly below those standards … to find that the conduct of the investigation in this particular case was unreasonable, does not necessarily impugn the general competence, far less the integrity, of those responsible for it”.

Her Honour was satisfied t at the Defence had established the exceptions, pursuant to Section 214(1)(a) – (c). An order or costs was made in favour of the Accused.

The Australian – Magistrate throws out domestic violence charges after self-harming ‘Cluster B’ evidence. Read more

Regina v Tyson Will – Hunt DCJ (Unreported) 3 February 2020

In this matter Greg Walsh represented Tyson Will in the most tragic of circumstances.

On Tuesday 24 July 2018, Tyson Will drove a motor bike on a farm situated at Delungra, approximately 90 km south of Moree.

Tyson, who was 32 years of age at the time, had been brought up in the farming life, from a very young age. He had been riding motor bikes on his parents’ farm since he was 6 years of age.

Tyson was happily married with three (3) beautiful children, namely Harper, Hunter and Montana.

The farm, which was owned by Tyson’s father, consisted of 3,000 acres and operated as a cattle and cropping farm. Tyson’s father, Ivan, had noticed that some cattle had got out of a paddock, no doubt due to the chronic drought conditions. At about 9.00 am Tyson decided to take Harper and Montana over to see “Pop”. Harper and Montana were placed in front of’ Tyson, on a Honda motorbike. Neither child was wearing a helmet or protected clothing.

The motorbike had been in use for about thirteen (13) years and was not registered, as is the case with such motorbikes, as used on rural properties.

Tyson drove the motorbike over to see Pop and Harper decided to go with Pop on his four-wheeler, but Montana wanted 10 stay with her father. Montana was the “apple of her father’s eye”. They were inseparable.

Tyson’s father suffers from osteoarthritis and the cattle that had got out needed to be directed through a gate. Tyson’s father, Ivan, couldn’t operate the gate because of his medical condition and so Tyson rode the motorbike back with Montana in front of him, at a speed of approximately 15 — 20 km/hour. As he rode the motorbike, its front wheel came in contact with a rock, which was behind a tuft of grass, causing Tyson and Montana to be dislodged from the motorbike. Tyson instinctively cradled Montana to protect her from the fall and he landed on his shoulder. Tragically, Montana’s head hit the ground and she suffered a fractured skull and died instantly. Tyson immediately applied CPR, which was ongoing for nearly 50 minutes. The ambulance officers arrived, but there was nothing that could be done to save Montana, who was 2.5 years of age.

Tyson and his devoted wife, Courtney, together with Ivan, did everything possible to resuscitate Montana. Tyson co-operated with the Police and participated in an electronically recorded interview and he was charged with ‘manslaughter’ and ‘driving a motorbike in a dangerous manner, contrary to Section 52A(1)(c) of the Crimes Act’.

The devastation to Courtney, Tyson and Montana’s brother and sister, was truly devastating. Montana was deeply loved and her death occurred in the circumstances of a tragic accident.

Tyson Will instructed Greg Walsh to act on his behalf, in these tragic circumstances. Greg attended upon Tyson at the farm and took a view of the area where the subject accident occurred, Contrary to the Police facts, it was a relatively level paddock and there were only small amounts of underlying granite in the paddock.

The Prosecution’s case was based upon the condition of the motorbike, which to say the least, was not in a good condition. It was typical of farm equipment utilised in the very circumstances that had occurred in this case.

Tyson had informed the Police, in his recorded interview, that there had been a previous occasion when he had come in contact, whilst riding on the motorbike, with a rock and had suffered injuries. He told the Police that he did not wear a helmet, nor did the children wear one, because of the fact that it was often over 100 degrees and if the children were with him on the motorbike, he would always only ride at a very moderate speed.

Greg Walsh qualified Dr McDonald, a well-known expert, who provided a comprehensive report. His expert opinion was that the effect of the condition of the motorbike did not, in any way, contribute to the subject accident. He was of the opinion that the speed at which Tyson was travelling was moderate, and that the rock was partly embedded in the hardened soil of the paddock and covered by a tuft of grass.

Greg Walsh was successful in having the charge of ‘manslaughter’, which was laid against Tyson Will, dismissed and he ultimately pleaded ‘guilty’ to the charge contrary to Section 52A(l)(c) of the Crimes Act of ‘driving in a dangerous manner occasioning the death of Montana’.

Tyson was sentenced by His Honour, Judge Hunt of the District Court at Armidale, on 3 February 2020. His Honour, in a very comprehensive judgement, reviewed the authorities in respect of the offence to which Tyson pleaded ‘guilty’. There was a large number of witnesses who spoke of the tremendous good works of Tyson within the Delungra community and in particular as President of the Delungra Cricket Club and his willingness to assist other members of the rural community in the tragic circumstances of the terrible drought that had affected so many Australians in rural areas. It was clear that Tyson Will was a very good man, who was absolutely devoted to his wife and children and whose heart and spirit had been broken by the tragic circumstances of this accident.

His Honour, Judge Hunt, imposed an intensive Correctional Order, conditional upon Tyson Will’s good behaviour for a period of two (2) years.

Tyson is now, in these tragic circumstances, doing his very best to support Courtney and his children and there’s not a moment that goes by that he doesn’t think of his beloved daughter, Montana.

Police v Christian Petrella

In this matter Greg Walsh acted for Christian Petrella at the Downing Centre Local Court.

Christian Petrella was charged with:

  • Intention to choke person with recklessness on 21 April 2019.
  • Assault occasioning actual bodily harm on 12 June 2019.
  • Destroy or damage property in April 2019.

Magistrate Baptie heard the matter over four (4) days.

Christian Petrella, who was aged 22 years was arrested by the Police on 13 June 2019. He had been involved in a relationship with a woman aged 21 years. He’d never previously been the subject of any criminal charges and was a person of good character.

Magistrate Baptie set out in her reasoning’s that the circumstances whereby a complaint was made by Christian’s girlfriend on 12 June 2019. She participated in a DVAC recording. Christian, who had been living with the Complainant for about six (6) months, was not aware of her previous psychiatric history.

She alleged to the Police that on 12 June 2019, she had an argument and referred to having depression, and this was triggered. She had unexpectedly come home to their residence at Pyrmont. Christian was in the bathroom having a shower, when she unexpectedly entered and wanted a kiss from him. He indicated that he could not, at that stage, as he was brushing his teeth in the shower, She left the bathroom and went upstairs and locked the bedroom door. Christian had all his clothes, mobile phone, wallet and key card in the bedroom. He knocked on the door but there was no answer and he went down to the kitchen and got a spoon and was able to open the door in that way.

He entered the bedroom and observed that the Complainant was facing against the wall and was sobbing and crying. He had already made arrangements with the Complainant earlier in the day, to attend a movie at George Street and had purchased the tickets to do so. The arrangement was that he would meet her in the City at about 5.30 pm. She had unexpectedly come home and he saw her upset, sat on the bed and sought to dab her eyes with some tissues to help her. He spoke compassionately to her.

She suddenly sat up and attacked Christian, scratching his arms, chest and back. He did not react in any violent way but was shocked by the behaviour of the Complainant. The attack, by the Complainant upon Christian, was a very violent one, with him suffering quite significant and deep scratches, in particular to his back.

The Complainant gave a variety of versions to the Police in the DVAC interview, including that the incident occurred upstairs and then downstairs and then upstairs again. These versions were set out, at length, in Magistrate Baptie’s Judgment.

Christian decided to leave the residence and packed his belongings into cardboard boxes and called an Uber. He wanted to go to the toilet, which was situated in the bathroom downstairs and after locking the bathroom door, he was confronted by the Complainant, who had a knife in her hand and who had opened the door with that He pleaded with her to leave him alone, as he wanted to use the toilet, and eventually was able to leave the bathroom, as did the Complainant, and then he returned to the bathroom so he could go to the toilet.

The Complainant then sought to force her way into the bathroom, as he attempted to shut the bathroom door and her leg was caught between the door and the door frame. Immediately he realised this and he allowed the door to be released. He then shut the door and went to the toilet. Thereafter, he got his belongings, got in the Uber which arrived. and went to his mother’s home.

Christian’s mother observed that her son was very upset and had suffered significant injuries and she took photographs of those injuries.

The Complainant made allegations of an earlier incident on 21 April 2019, in which the Complainant alleged that Christian had tried to strangle her with a phone cord. He denied doing this and, in fact, the Complainant had placed the blue phone cord around her neck, after there was an argument involving the Complainant bringing the vacuum cleaner from downstairs to the bedroom upstairs, at about 11.00 pm. She was concerned that Christian was not pulling his weight, so far as domestic duties were concerned.

His case was that she had emptied the contents of the vacuum cleaner onto the bedroom floor and got his laptop and placed it in the material on the floor from the vacuum cleaner and then threw his mobile phone down the stairs. He made a critical comment of her, to the effect that what she was doing was “dumb”. After he recovered his phone and returned to the bedroom, he observed that she had placed the iPhone cord around her neck and she was red in the face. He immediately approached her and got his finger to release the pressure around the cord and her neck.

She called out to the flatmate in the house and he, Christian, wanted to just leave the flat, to get some “fresh air”. He was shocked about her conduct. According to the Complainant, the flatmate had witnessed the assault and injury to her neck. This was not supported by the flatmate.

At the time of instructing Greg Walsh, Christian indicated that the Complainant’s behaviour was somewhat strange and in particular that he had done nothing to offend her or cause her to behave the way she did. Greg Walsh sought instructions as to whether the Complainant had any psychiatric history and though Christian was not specifically aware of this, he had become aware that the Complainant had sought treatment at a well-known psychiatric hospital in Sydney.

Greg Walsh took steps to issue a Subpoena, to obtain the psychiatric records of the Complainant.

In due course, those records were produced and quite sadly, the Complainant had a lengthy history of a psychotic-type illness that was diagnosed as Cluster B Personality Disorder. She was diagnosed as suffering from a Borderline Personality Disorder: Narcissistic Disorder and Comorbid Depression.

In particular, the Complainant had a history of self-harm, in circumstances where she experienced any perceived rejection. This is a classic history of Cluster B Personality Disorder.

Greg Walsh qualified Dr Olav Nielssen, who provided a report which was served upon the Prosecution, at an early time. According to Dr Nielssen, the symptoms of a person suffering from such a disorder, are such that they are hyposensitive to any suggested rejection and, in particular, have poor distress tolerance, emotional dysregulation, poor coping strategies and a dysfunctional family system.

In cross-examination of the Complainant, she denied on occasions, her history as recorded in the extensive psychiatric records. She had a history, including self-strangulation and suffocation, in circumstances of perceived rejection. Thus, her behaviour was consistent with her psychiatric illness. She had also denied her dosage of Seroquel} suggesting it was 5 mg, when in fact on one occasion, she attempted, sadly, to take her own life and took 30 tablets of Seroquel, which were 25 mg.

The Defendant gave evidence as to Dr Nielssen and the Defendant’s mother.

Her Honour, Magistrate Baptie, dismissed each of the charges against the Defendant and an Application has been made for Christian’s costs.

Howard v Surf Life Saving Australia NSW [2019] NSWSC 1212 (13 September 2019)

In this matter, Greg Walsh acted for the Plaintiff, Graham Howard, a long serving member of the North Palm Beach Surf Life Saving Club.

Mr Howard had been subject to allegations of misconduct which was the subject of an investigation and disciplinary hearing.

He was suspended for two years.

Justice Pembroke, of the Supreme Court, heard the case and determined that there was a wholesale failure of the Judiciary Committee to comply with its own regulations. The Committee had also failed to provide Mr Howard with basic information which he was entitled to on grounds of procedural fairness. The unfairness of Surf Life Saving NSW was revealed in the course of the hearing by the Judicia Committee as observed by His Honour at paragraph [19] of the judgement.

The decision of the Judiciary Committee was set aside and the Defendant was ordered to pay costs. 

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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.

AB v Law Society of NSW [2018] NSWSC1975 Davies J

In this matter Greg Walsh acted for AB in a very important case against the Law Society of NSW.

AB at the time of instructing Mr Walsh was a Solicitor with Firm 1. Her supervising partner was CD. That supervising partner on 3 March 2016 requested that she pop in and see her and when AB did so a piece of paper was handed to AB consisting firstly of CD’s signature and that of EF, CD’s former partner and the father of a child XY. AB witnessed CD’s signature as a person over the age of 18 years and not related to CD. She neither witnessed it as a Solicitor or in her capacity as a Solicitor. CD then asked her can you witness EF’s signature as well. She did so. AB said to CD “Has EF been in to sign this?” CD said “Yes I met him this morning”. AB had no reason not to believe what her supervising partner told her and signed the documents.

The next day AB overheard a phone call made by CD with a person likely to have been EF. As a result of the matters that she heard in the call CD said to AB that he had received a call from the Passport Office about the Passport Application. AB became suspicious at that point that EF may not have signed the application because CD had said to EF on the phone that she was taking XY to New York.

Davies J set out in his judgement at paras [9-14] further evidence in respect of the circumstances of the execution of the Passport Application and the results of investigation conducted as to what had occurred in such circumstances.

On 1 September 2016 AB contacted the Law Society and was referred to the Senior Solicitors Scheme and thus represented by Greg Walsh. Mr Walsh obtained instructions from AB and on 17 November 2016 sent a letter to the Law Society making full disclosure of the matters on behalf of AB.

Davies J thereafter sets out in some detail the extensive exchange of correspondence between Greg Walsh and the Law Society. Greg Walsh asserted that the Law Society had not afforded procedural fairness to his client and had not disclosed documentation consisting of two statutory declarations of CD to the Law Society. Mr Walsh on behalf of AB asserted that the full statutory declaration provided to the Law Society by CD be provided to him on behalf of AB. Justice Davies refers to Mr Walsh’s assertions in his judgement at paras [21-23]. On 6 July 2018 Ms Foord on behalf of the Law Society replied to Mr Walsh stating “You have been provided with everything that is relevant to the Society ‘s investigation of the complaint about AB. Those parts of CD ‘s statutory declaration that do not relate to your client or to the complaint about her will not be provided to you”.

At para [24] Justice Davies made this finding “In fact, the Law Society’s statement in that letter was untrue. Not only did the Law Society have the statutory declaration of CD from which it had quoted, but it had another statutory declaration, made at an earlier time, with answers to questions which had been asked of CD by the Law Society. That only became clear when Mr Walsh saw the report from the Bar Association mentioned earlier. That statutory declaration was not made available until a subpoena and a notice to produce was issued to the Law Society shortly before the present hearing. The other statutory declaration has never been made available to the plaintiff”.

Justice Davies set out in his judgement at [25-26] the result of the investigation made by The NSW Bar Association to grant AB a Practising Certificate as a Barrister. Mr Walsh on her behalf had made full disclosure about the complaint to the Law Society. The Bar Association had been abled by way of notice issued to the Law Society to obtain the relevant statutory declaration.

At [27] His Honour notes that on 12 September 2017 Mr Walsh wrote to the Law Society indicating that he had now learnt that there were in fact two Statutory Declarations. The First Statutory Declaration of CD contained significant admissions which are directly relevant to the allegations of Professional Misconduct against AB. At [28] the Law Society did not reply. Greg Walsh wrote again on 16 October 2017. In that letter he asserted “…[l]t is submitted that the decision to conceal from AB and myself as her solicitor the contents of the First Statutory Declaration of CD provided to the Law Society on 21 April 2017 is utterly contrary to the obligations of procedural fairness/natural justice. …”.

Ms Foord on behalf of the Law Society responded in a letter of 24 October 2017 again asserting that everything relevant had been provided to Mr Walsh on behalf of AB.

At [30] Justice Davies made this finding “It was again not true that all relevant material had been provided to AB. The Law Society had still not made available the statutory declaration from CD in its possession. The letter of 20 June 2017 which first disclosed the existence of a statutory declaration by CD did not mention the date of that statutory declaration. It could not, therefore, be inferred from the references in the letter of 24 October 2017 that what was being spoken of was a second statutory declaration by CD”.

On 1 February 2018 the Law Society resolved to refer that AB to the Administrative Tribunal

Occupational Division on the basis that she had falsely witnessed the signature of EF on a

Passport Application of about 3 March 2016. It provided reasons for its decision which were then set out by His Honour at [40].

Throughout the ordeal suffered by AB, Mr Walsh had obtained reports from her treating psychiatrist Dr David Sturrock. These set out the tragic circumstances in which she suffered from a major depressive illness: shock, depressed mood, nightmares, insomnia, anxiety, panic attacks, tearfulness, nausea, dry mouth and poor concentration and suicidal ideation. The response by the Law Society to such overwhelming evidence was simply to assert that it in no way was responsible having regard to its conduct in delaying the investigation and concealing evidence that was clearly relevant to the allegations made against AB. Tragically, AB attempted to take her own life on three separate occasions.

Justice Davies ultimately held for the reasons set out in his judgement that the Law Society had failed to accord procedural fairness to her and further had failed to provide adequate reasons in both the decisions of 14 December 2017 and I February 2018 meaning the decisions could not stand. His Honour further found that the reasons for the decision of I February 2018 disclosed jurisdictional error.

The Law Society then despite His Honour reserving his decision resolved to commence proceedings in the tribunal and did so on 1 August 2018. His Honour made an order in the nature of certiorari quashing the decisions of the Law Society made on 14 December 2017 and 1 February 2018.

This judgement of Justice Davies is a fundamental one in respect of the proper manner in which the Law Society of NSW ought to have investigated the allegations of Professional Misconduct against AB. She, somewhat remarkably, is still alive to continue assisting the community as a member of the NSW Bar Association.

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.