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.
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.
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.
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  QCA 341 at ; (2002) 134 A Crim R 100.
The Court granted leave to adduce the further evidence and the appeal to be dismissed.
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.
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.
On 11 September 2018, Mossop J delivered judgement as to the application for a permanent stay of the special hearing by John Chute. Greg Walsh appeared on behalf of the Accused. The history of the matter is set out in a number of judgments of the Supreme Court; R v Chute  ACTSC 246; R v Chute (No 2)  ACTSC 347; R v Chute (No 3)  ACTSC 409.
On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone. On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury. On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay.
The basis of the application for a stay was previously set out in the judgement of Mossop J at  in R v Chute (No 2)  ACTSC 347.
The history of the Accused was set out in Mr Walsh’s Affidavit of 10 October 2017.3
Mossop J at  set out the medical conditions suffered by the Accused. A further Affidavit of 7 November 2017 of Greg Walsh was referred to at length, including the opinion of a forensic psychiatrist, Dr John Roberts  – .
His Honour also referred to further Affidavits of Greg Walsh of 10 November 2017, 20 November 2017 and 1 December 2017.
His Honour referred to the High Court decision in Subramaniam v The Queen  HCA 51; 79 ALJR 116 AT  – . In Subramaniam v The Queen, the Applicant had relied upon her mental health preventing her from being able to give reliable testimony and that further prosecution of the proceedings could have resulted in a serious worsening of her mental health.
Greg Walsh also relied upon the decision of McDonald v The Queen  VSCA 304; 263
A Crim R 356 at . The factor that gave rise to error as found by the Victorian Court of Appeal in that case, was the trial judge had erred in putting aside consideration the likely outcome of the proceedings if the Applicant was found to have committed the offences .
Mossop J at  referred to the factor of unfairness and oppression requiring consideration of the community’s interest in bringing matters to trial. His Honour observed that it would only be in extreme circumstances where an abuse of process is established, to determine whether it is appropriate that any particular charge against any particular defendant proceeds: R v Smith  VicRp 2;  1 VR 10 at .
His Honour placed particular emphasis on the descending judgment of Ferguson JA and the feature that the legislature had seen fit to establish process by which persons who were unfit to stand trial were the subject of a special hearing. His Honour ultimately made a finding that “to assess the question of whether unfairness is such as to amount to an abuse of process without recognition of the inherent features of that process would involve the subversion of the legislative scheme.”
Mossop J was also referred by Mr Walsh to the decision of TS v R  NSWCCA 174 at . In that case, Bellew J (with whom Leeming JA and Adams J agreed) found that the primary judge had erred because the appropriate question was whether or not a remedy was warranted in the particular circumstances of the applicant. At -, Bellew J observed:
“The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.”
In addition, the overall effect of her Honour’s reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.”
A further fact in that case, was the fundamental unreliability of the Complainant’s evidence.
Greg Walsh also relied upon the judgment of Arrivoli v R  NSWDC 112.
That was a case in which Buscombe DCJ granted permanent stay in the context of historical sexual abuse by a member of the Catholic clergy who was 94 years of age at the time of the hearing of the application for a stay.
Another important issue that Mossop J addressed, was the requirement of the Accused to attend a special hearing. Greg Walsh submitted that having regard to the physical and psychological condition of the Accused, it was not probable that he had the capacity to attend, which was in accordance with the expert evidence of Dr Roberts and also the other medical evidence relied upon as referred to in the Walsh Affidavit. Section 316(1), provides that the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. Section 316(6) provides that “unless the Supreme Court otherwise orders, ” the accused shall have legal representation at a special hearing.
Mossop J referred to Lipohar v The Queen  HCA 65; 200 CLR 485 at , in which the Court found there is “no trial in absentia at common law in the ordinary course ” His Honour referred to various specific statutory provisions, which authorise trials to proceed in the absence of the Accused. His Honour referred to Jenkins v Whittington  NTSC 65 at -  as to the circumstances in which a trial can be conducted in the absence of an Accused.
At , his Honour compared the Accused’s position to:
“how would the fairness of a trial be advanced by compelling someone who was delusional and uncomprehending of the process to be present during the trial? In this case, the situation is that the accused is unfit because he is unable to follow or adequately process the proceedings. In circumstances where no relevant forensic interest of the accused would be advanced by his presence at the hearing, the presence of a person who was unfit to plead does not appear to me to be an essential requirement of the special hearing process, notwithstanding the general principle in s 316(1 ) of the Crimes Act.”
His Honour ultimately found that there was no suggested reason as to the Accused being present including for an arraignment at the special hearing. His Honour dismissed the application for a permanent stay.
On 17 November 2017, Mossop J gave reasons for his conclusion that the fact that the procedure in s.316(2) of the Crimes Act 1900 (ACT) had been overlooked, did not avoid the obligation to determine whether or not the accused was capable of making an election to have a special hearing conducted as a trial by judge alone: see R v Chute (No 2)  ACTSC 347. Greg Walsh appeared as Counsel for John Chute. An Affidavit of Mr Walsh dated 20 November 2017 was relied upon in the further hearing of the matter.
A forensic psychiatrist, Dr John Albert Roberts, gave evidence and his Honour had set out the psychiatrist’s findings in respect of an examination of the Accused at the age care facility where he resided.
Dr Roberts was of the opinion that the Accused was not capable, by virtue of his mental state, of appreciating matters that he would need to consider in coming to a decision in relation to the need for him to elect a judge alone trial or a trial by judge and jury.
Mossop J at , concluded that the evidence of Dr Roberts was consistent with the evidence of Mr Walsh, arising with his dealings with the Accused shortly before he was seen by Dr Roberts. His Honour was satisfied that the Accused is incapable of making an election to have his special hearing conducted by judge alone. His Honour then made a direction to the ACT Civil and Administrative Tribunal requiring the appointment of a guardian to consider whether to make an election.
In this matter Greg Walsh acted for Chute.
On 24 July 2017, Murrell CJ found that John Chute was unfit to plead to an indictment containing 16 counts; R v Chute  ACTSC 246.
On 12 October 2017, the Accused sought an order that there be a permanent stay of the special hearing. Mossop J in R v Chute (No 2)  ACTSC 347 at  set out the grounds of the application on behalf of the Accused. Greg Walsh appeared as Counsel for the Accused in respect of the hearing of the application.
On 15 and 16 November 2017, argument took place in relation to the application for a stay. In the course of the argument, it became apparent that following this decision of Murrell CJ, neither of the parties nor the Court had given consideration to the operation of s.316(2) Crimes Act. That permits a person who has been found unfit to plead to elect, either directly or via a guardian to have a special hearing conducted as a trial by judge alone as opposed to a trial by jury.
Mossop J considered the interrelationship between s.316(1)(2) Crimes Act and section 68A & B of the Supreme Court Act 1933 (ACT).
His Honour concluded that there were three reasons why s.68B does not qualify s.316 so as to preclude the making of election by or on behalf of a person who has been found unfit to plead in relation to “excluded offences “ within the meaning of s.68B.
In these circumstances, Mossop J did not determine the application for a stay and heard further submissions as to how to proceed in relation to the operation of s.316(2).