In this matter, Greg Walsh acted on a pro bono basis for Mr Michael Rollinson, Barrister, who had been the subject of two declarations that he was in contempt of Court and that he be punished for the contempt.
The Applicant was the Council of the NSW Bar Association (“the Bar Council”). Mr Rollinson pleaded guilty to each count of contempt. His Honour Beech-Jones CJ at CL set out the evidence in support of those breaches at  – .
His Honour approached the sentencing of Mr Rollinson on the basis that he had not previously breached the law or any relevant norm or professional standard. Further, that although his practice had struggled, were it not for his conduct since July 2021, it was likely that he would have continued with the support of solicitors and professional colleagues. However, his Honour regarded “it as an almost virtual certainty that either by way of being refused a Practising Certificate or removed from the Roll of Practitioners (or both), Mr Rollinson will not (lawfully) practice again.”
Beech-Jones CJ considered the Report of an experienced forensic psychiatrist, Dr Andrew Ellis, of 18 February 2022. Dr Ellis classified Mr Rollinson’s interpersonal isolation as schizoid personality disorder. This involved a pervasive pattern of detachment from social relationships and a restrictive range of expression of emotions beginning in early childhood.
The opinion of Dr Ellis gave rise to a real risk that Mr Rollinson’s “personality disorder, age and build would render him vulnerable to intimidation” in custody
His Honour set out the principles for punishment for contempt and ultimately determined that each of the contempts represented a serious challenge to the Court’s authority that was exacerbated by Rollinson’s status as an officer of the very Court he deliberately and repeatedly defied.
His Honour declared that Mr Rollinson is in contempt of the Court for the various breaches to which he pleaded guilty and ordered that a commitment to a correctional centre for a period of 9 months commencing on the date of his arrest be suspended on the condition that for a period of 3 years from today, 8 April 2022, he comply with Order 1 made by Wilson J on 16 August 2021.
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In this case, Greg Walsh acted for the plaintiff, MTH, in respect of proceedings commenced by Summons filed on 23 June 2020. The plaintiff sought relief including injunctions to restrain the defendants, Geoffrey and Sandra Croft for disposing of certain assets.
Adamson J heard the application for costs. Her Honour set out the factual and procedural background in respect of the costs at  – .
The Summons was filed in proceedings commenced by way of Statement of Claim on 16 April 2020. MTH claimed damages from the State of New South Wales and Mr Croft for physical and sexual assaults perpetrated against her by him between 1978 and 1979 whilst she was in the foster care of Mr and Mrs Croft. MTH was 16-years-of-age at the time she was a ward of the State.
The assaults were perpetrated against MTH at a property known as ‘Cleggswood’ in Uralla. This property was sold in 2013 for $ 3 million. Mr and Mrs Croft were registered proprietors as tenants in common in equal shares of two residential properties in Armidale, rural properties in Yorrowyck and Ebor, and another residential property in Brushgrove: .
In 2017, Mr Croft was arrested and charged with a number of counts of sexual and physical assault alleged to have been committed against the plaintiff. On 12 April 2019, Mr Croft transferred his share in the Brushgrove and Yorrowyck properties to Mrs Croft. On 15 May 2019, he transferred his share in the Ebor property to Mrs Croft; the consideration identified was “love and affection”: .
On 25 October 2019, Judge McLennan sentenced Mr Croft to an aggregate term of imprisonment of 22 years with a non-parole period of 10 years.
On 24 July 2020, Greg Walsh, the plaintiff’s solicitor, swore an affidavit in support of the application for freezing orders to which he annexed a draft statement of the plaintiff. A draft Summons was also annexed which sought relief against Mr and Mrs Croft pursuant to s37A(1) Conveyancing Act 1919 (NSW) which provides that transfers of property made with intent to defraud creditors, are voidable on the application of a person prejudiced by the transfer: .
On 27 July 2020, Campbell J made freezing orders to restrain Mr and Mrs Croft from dealing with their assets: MTH v Croft  NSWSC 986.
On 4 December 2020, consent orders were made whereby Mrs Croft re-transferred to Mr Croft the interests which he had transferred to her in the Yarrowyck and Ebor properties.
Her Honour was satisfied that, had the proceedings been brought by Notice of Motion in the damages proceedings, the question would have arisen whether a costs order ought to be made in favour of either party and on what basis. Her Honour observed that the transfers from Mr Croft to Mrs Croft in mid-2019 for nil valuable consideration had the effect of diminishing the assets of Mr Croft which would otherwise have been available to meet a judgment in favour of the plaintiff.
Her Honour at  made a finding that the plaintiff’s prospects of success in the summons proceedings were high. In these circumstances, her Honour made an order that in the event that the plaintiff was successful in proceedings against Geoffrey Croft, the defendants in these proceedings are to pay the plaintiff’s costs of these proceedings.”
The judgement can be found at https://www.caselaw.nsw.gov.au/decision/17a2bc7bdd6fd259c6d4ead3
In this matter Greg Walsh appeared for the Applicant DVM who had worked as a primary school teacher for over 30 years. In 2015, the Applicant whilst the Deputy Principal of a primary school was the subject of allegations that he had touched students at the primary school inappropriately. At that time, the Applicant had a lengthy and distinguished career as a teacher and was highly regarded by his colleagues.
The Applicant was happily married and had 4 children.
The Applicant was not aware that he suffered from autism spectrum disorder (ASD). He and family members were aware of certain personality traits which ultimately were found to be consistent with that disorder.
A fellow teacher at the school had allegedly observed the Applicant talking to some students in the playground. The Applicant was a popular teacher and would supervise children during lunchtime. It was alleged that the Applicant had patted the children on their lower back or bottoms after speaking to them.
The principal of the primary school frequently attended the classrooms of all the teachers at the school. The Applicant taught a disabled child and there were always two special teachers in the classroom to assist in teaching and supervising that child. The Applicant would mark homework and conduct reading sessions with the children and in doing so sit at a desk. On occasions, some children impulsively jumped up on his lap and he would immediately place the child from his lap on to the floor. The evidence was that he had contacted a number of such children’s parents and disclosed to them what had happened and then asked them to reinforce to the child that they were not to do this. On each occasion when he contacted the child’s parents, no such further incident occurred.
The principal on a regular basis had observed how the Applicant had related to the children during the course of lessons and she noted that the children were very happy and had a good relationship with the Applicant.
A ‘no go and tell’ class was conducted by the teacher who allegedly observed the Applicant patting the two children in the playground. The class was a combined one and children were asked to write down in each other’s presence, any experiences or observation they had of someone touching them inappropriately. This had followed a lesson in which repeated representations had been made as to certain types of conduct which the teacher presenting the class regarded as being inappropriate.
Some of the children looked at other children’s notes and adopted what other children had said.
The teacher concerned spoke to the principal of the school, who contacted the Department of Education and in turn the Police. A Police task force was then created and a large number of children interviewed. The interviews were conduced in a manner which involved the use of leading and closed questions. Many of the children did not provide accounts consistent with any allegation of indecent assault.
The Applicant was arrested and charged with a large number of counts of indecent assault involving the touching of children on their lower back and bottoms and also on their breasts. The latter charges were in circumstances where the children concerned were very young, namely 10 and 11 years of age and had no breasts.
The Applicant was immediately removed from his school and eventually dismissed from his employment with the Department of Education.
Another significant feature of the case was that parents had been involved in perpetrating rumours in the township where the school was situated and the Applicant resided. One of the persons concerned had professional qualifications which had the effect of causing enormous prejudice to the Applicant.
One of the parents who had been involved in making unfounded representations acknowledged to the principal to the school that she should not have done so and when she spoke to her son, he quite clearly denied that the Applicant had ever touched him on the bottom or sat him on his lap whilst marking work.
The Applicant after his arrest and charging, was granted conditional bail. As a result of lack of communication on the part of his then legal practitioner and himself, the Applicant contacted the principal of the school to seek to obtain some information and documentation relating to the allegations against him. He was immediately arrested on the basis that he breached his bail and he was taken into custody and placed on remand at the notorious Goulburn Gaol. He was placed in a cell with another prisoner who had seriously assaulted apparently a paedophile. The Applicant had never been in custody (apart from his initial arrest) experienced a truly horrific ordeal. He was eventually granted further conditional bail, however he found his incarceration in such circumstances to be humiliating and extremely frightening.
The Applicant’s trial took place over a considerable period of time having regard to the necessity of 17 complainants having their evidence recorded and being subject to cross examination. An important feature of the evidence was that there was no evidence that the Applicant had in any way touched the children in any sexualised context.
The Trial Judge, Townsden J, said to the learned Crown Prosecutor:
HIS HONOUR — Right, smack on the bottom, go on, move on, that’s it. How does that at the criminal standard, perhaps on a social —perhaps in danger to go off course here — but how on a social setting does that lie with the concerns that we have in a community that teachers feel that they can ‘t even touch the students in a primary school. And that male teachers feel that they can ‘t be comfortable to even be a male teacher in a primary school. Are you aware of that social issue, Mr Crown? “
The learned Trial Judge was also provided with evidence both from experts on behalf of the prosecution and defence as to the Applicant suffering from the previously undiagnosed autism spectrum disorder. A trait of that disorder is that such persons are often very tactile and not aware of boundaries so far as physical touching is concerned. There was evidence that the Applicant quite frequently would pat children on the back of the head, shoulders, upper back and lower back.
His Honour was not satisfied that such conduct amounted to an indecent assault. See R v Harkin (1989) 38 A Crim R 296 at 301.
On 30 October 2017, Judge Townsden acquitted the Applicant in respect of each of the 17 counts of indecent assault against him.
An application for costs under the Costs in Criminal Cases Act 1967 was made on behalf of the Applicant and was granted by His Honour.
An application was made by the Applicant for a Working with Children Check Clearance to the Children’s Guardian. As the Applicant had been charged with criminal offences, the Children’s Guardian was required to undertake a risk assessment of him (Ss.14 and 15 Child Protection (Working with Children) Act 2012. The Children’s Guardian, after conducting the risk assessment, refused the Applicant’s Working with Children Check Clearance.
Greg Walsh represented the Applicant in proceedings heard by Senior Member S Leal and General Member S Davidson. See DVM v Children’s Guardian  NSWCATAD 323
It was the Children’s Guardian’s position up until extremely late in the proceedings of rank opposition to the application for a Working with Children Check Clearance.
The Tribunal was required to determine whether the Applicant posed a real and appreciable risk to the safety of children and if he does not pose a real and appreciable risk to the safety of children, then to consider;
Whether a reasonable person would allow the Applicant to have direct and unsupervised contact with their children; and
Whether it is in the public interest to grant the Applicant a Working with Children Check Clearance.
In determining whether the Applicant posed a real and appreciable risk to the safety of children, the Tribunal needed to consider:
Whether the Applicant inappropriately touched students who attended the school where the Applicant last taught.
Whether in light of his mild autism spectrum disorder, the Applicant has the ability to look after children in his care;
Whether the Applicant has gained insight into his behaviour.
The Tribunal also needed to take into account those matters under s. 13(1) of the Child Protection (Working with Children) Act.
The Tribunal, after considering a large body of evidence, was satisfied that the Applicant may have touched students on the bottom but it was not his intention to do so. It found “rather it was his intention to pat them on the lower back, generally as a gesture to send them on their way after having spoken to them.”
There was also evidence that in respect of a student that he lifted the student up by the waist to reach the top of the white board so the student could wipe it. He agreed that he would not do this now.
In the context of children being pulled or placed on to his lap, the Applicant gave evidence in respect of which the Tribunal was satisfied that some students had climbed onto this lap but he never encouraged them to do so and told them to get off and made them sit on the floor. This evidence was corroborated by a former principal.
The Tribunal considered at length, the evidence of a number of eminent experts, including Dr Peterson, Dr Chenoweth (Crown Expert), Dr Edwina Birch, Dr Olav Nielssen and Dr Adrian Keller.
The Tribunal considered carefully all of the statutory considerations and was not satisfied that the Applicant posed a risk to the safety of children. It found “having regard to the material before us, we are satisfied that it is in the public interest to make the orders sought by the Applicant. Specifically, we are satisfied that the Applicant has skills and experience in the care and management of children, including children with a disability and that he has a particular expertise in drama and the creative arts and these are important skills for the education and development of children.”
The judgement can be found at https://www.caselaw.nsw.gov.au/decision/176832e7ca11e1b274332091
In this matter, Greg Walsh acted for Christian Petrella.
On 10 March 2020, Christian Petrella was acquitted of each of the charges:
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.
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.
In this matter Greg Walsh acted for Christian Petrella at the Downing Centre Local Court.
Christian Petrella was charged with:
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.
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  of the judgement.
The decision of the Judiciary Committee was set aside and the Defendant was ordered to pay costs.
R v Crawford (unrep) Flannery DCJ 1 November 2018 – permanent stay of indictment In R v Hakim  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  VSCA 304.
Flannery DCJ referred to the decisions of Jago v District Court  87 ALR 577, Subramaniam v R  211 ALR 1, R v Zvonaric  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  NSWCCA 173.
The special hearing was permanently stayed.