The Case for Redemption

In the King v RR, Hunt DCJ of the District Court at Sydney, NSW, on 29 September 2023, sentenced an offender in respect of two groups of offences.

The first being, the counts of supply drug contrary to s.25A(l) of Drug Misuse and Trafficking Act 1985(NSW). The second being, property contrary to s. 193C(1) of  Crimes Act 1900 (NSW), and to aggravate, take and detain contrary to s.86(2) of Crimes Act 1900 (NSW).

RR was 39 years old at the time of sentencing and sadly, had a problematical upbringing. This involved her natural father, who was a chronic alcoholic, and her parents separating when she was very young. RR’s mother re-married. RR’s stepfather and mother had been very positive in attempting to deal with the very difficult issues involving the long-term addiction to illicit substances by RR.

RR was introduced to such substances in or about 2012, when she obtained work where such drugs were freely available. She thereafter became chronically addicted to such drugs, and continued offending over a number of years up until 2022.

The offender had been sentenced to imprisonment on a number of occasions and found such, a very difficult experience. She tragically experienced significant subjective problems whilst in custody. It was very difficult for her to receive appropriate treatments whilst in custody.

RR had been referred to a General Practitioner (GP), who had been treating her mother for a number of years. This GP was familiar with RR’s subjective history involving her natural father, who had passed away. The GP assessed and treated RR in very difficult circumstances, and ultimately, provided comprehensive reports and treatment records to the sentencing Judge and to the Probation and Parole Service. The GP did not give up in his efforts to assist RR in rehabilitating herself.

Two things occurred in RR’s life at around 2022. She was referred to a Counsellor and Social Worker, Gaye Cameron, and to The Farm at Galong, a Rehabilitation centre for women. The CEO of The Farm is Kate Cleary.

The Farm operates an incredibly successful program for women who wish to remain absent from alcohol and drugs. In particular, it addresses underlying problems experienced by its clients who are suffering from depression and PTSD. RR, on 25 July 2022, entered Stage  and progressed at a very early time to Stage 2 of the Rehabilitation Program. RR impressed staff with her motivation and responsible behaviour, and was promoted to having a leadership role within the program. It was of much significance that RR completed Stage 2 of the Program in only 5 months and was promoted to Stage 3. RR also undertook a Certificate IV in legal services, which normally takes a period of 24 months. RR has now one further subject to complete her Diploma in Paralegal Services. Her progress was described by Kate Cleary as “outstanding

In a truly remarkable development, RR obtained employment with a law firm in the ACT, Australia. RR has been employed as a legal clerk and has undertaken her employment duties in a very dedicated manner. RR has obtained her own rental unit and a motor vehicle.

The sentencing of RR was a difficult exercise. The sentencing Judge, Hunt DCJ, had granted conditional bail to enable RR to attend The Farm Rehabilitation Centre. RR did not let the Court down. There was no doubt that the offences in respect of which RR had pleaded guilty, were serious and involved what can only be described as a difficult sentencing exercise.

Greg Walsh emphasised to His Honour that RR was at the crossroads of her life and had demonstrated an enormous effort to rehabilitate her life before being sentenced.

The factors of childhood disadvantage are referred to in the High Court decision of Bugmy v The Queen [2013] HCA 37 in the context of individual offenders. It was submitted that childhood deprivation is not limited to Aboriginal Members of the Community; Kennedy v The Oueen [2010] NSWCCA 260 at [21 – 57]. As Rothman J observed in BP v R, sentencing principles apply to any persons who come from “particularly disadvantaged backgrounds”; see BP v R [2010] NSWCCA 159. As His Honour said, “it is by a better understanding that the cause of criminal behaviour (wherever it occurs and in whatever community or circumstances) that one can better fashion sentences that achieve the required outcomes of deterrence (general and specific) and rehabilitation”.

It was submitted and ultimately accepted by the sentencing Judge, that RR’s addiction reduced the seriousness of offending, and also the need for general deterrence. It promoted less need for specific deterrence and enhanced the prospects of rehabilitation. See R v Henry [1999] NSWCCA 111; Simpson J. As Her Honour observed in R v Henry:

“Drug addicts do not come to their addiction from a social or environmental vacuum. This Court should not close its eyes to the multifarious circumstances of disadvantage and deprivation that frequently precede and precipitate a descent into illegal drug use. I do not suggest for a moment that all drug users fall into this category. It is because some do and some do not that I believe rigid rules about the impact on sentencing of drug dependency cannot be laid down.” [337].

“I cannot accept that the blameworthiness of one drug taker is (even excepting that small number of individuals who begin drug taking with medically prescribed drugs) always to be treated as being at the same level as the blameworthiness of the next. Nor can I accept that the exercise of free choice in the use of drugs is always of equal dimensions. It is not every decision to use drugs that can properly or fairly be characterised as a decision made in the exercise of free choice. The will of an individual can be overborne or undermined, not only by acts of another person, but also by the pressure of circumstances. I do not accept that most drug offenders are truly exercising free will when they choose the degradation, despair, criminality and cycle of imprisonment that can follow the initial use of illegal drugs. The circumstances that propel the offender to the use of drugs are often, if not usually, beyond his or her control. They may or may not be combined with a vulnerable personality or even a weakness of character” [338]

In the context of rehabilitation, the reports from The Farm carried considerable weight in this factor in regards to the sentence.

The sentencing Judge, Hunt DCJ, imposed a sentence, which ultimately was to be served by way of an Intensive Correctional Order to enable the Offender to continue her rehabilitation in the community, subject to conditions. RR continues to attend upon her GP and psychologist, and is in frequent contact with The Farm and Ms Cleary. RR also attends at The Farm to speak to other persons in the program.


Roberts v R [2023] NSWCCA 187

In this matter, Greg Walsh previously represented William Keith Roberts (Applicant) in an application for leave to appeal arising from his conviction of historical sexual abuse of his daughter following a trial by jury in the District Court. He was 84 years old at the time of the trial and gave evidence. the Crown relied upon the manner in which he gave evidence in a particular way in support of the contention that he was lying in his evidence. he was found guilty on three counts and not guilty on two other counts and sentenced to a prison term of 5 years with a non-parole period of 2 years.

The Applicant sought leave to appeal from his convictions on two grounds:

  1. That a miscarriage of justice occurred by reason of the fact that he was not or may not have been fit to stand trial;
  2. That the guilty verdicts on two counts were Unreasonable and cannot be supported having regard to the evidence.

Prior to the sentencing of the Applicant, reports have been obtained from experts that he was suffering from dementia at the time of the trial which affected his fitness to be tried. This issue was not raised at the trial and first raised on appeal. The hearing of the appeal, evidence was given by three experts as to the Applicant’s fitness. Greg Walsh and Matthew Johnston SC, who was Senior Counsel at the trial, also gave evidence. audio recordings of the Applicant giving evidence at trial was also relied upon.

‘The Court upheld ground one of the appeal by majority (per Yehia J and Davies J agreeing, Kirk JA dissenting) but unanimously dismissed ground two.

The issue of principle based upon R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283, is that the appellate court engages in a question that is not based upon the identity of the decision-maker but on whether a miscarriage of justice has been occasioned at [160] and [168].

The evidence before the Court raised a question about the propriety of the conviction because the Applicant may have been unfit to stand trial at [172]. The opinions expressed by two of the three medical experts are a sufficient basis to conclude that the RTI test is met at [173].

The Applicant’s ‘argumentative and obstructive’ presentation, and his denials that he had given earlier evidence in a particular way, was ceased upon by the Trial Crown in support of the contention that the Applicant was lying in his evidence, at [193]. The jury did not know that the Applicant had dementia at [199].

Where a miscarriage of justice arises from the Applicant’s fitness to be tried with factual matters the subject of tested evidence in the appeal court, then miscarriage will only be made out if the Court is satisfied that the applicant was not fit to be tried or sufficiently persuaded that it appears unjust or unsafe to allow the verdict to stand: at [51], [52], [55]; MRW v R [2011] NSWCCA 260; Eastman v The Queen (2000) 203 CLR 1; [2000] HCA29; Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29; Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12.

 It was held that the Applicant’s capacity to give evidence was somewhat affected by his dementia and reduced in comparison to if he gave evidence without that condition. That does not suffice to establish that he was not fit to be tried. The legal requirement sets a minimum standard, not a relative one; at [127].

Mr Walsh gave evidence in the Court of Criminal Appeal and his evidence is referred to at [72] – [75].

R v Dawson (2022) NSWSC 1632

On 2 December 2022, Harrison J sentenced Christopher Dawson to imprisonment for 24 years commencing on 30 August 2022 expiring 29 August 2046 with a non-parole period of 18 years expiring on 29 August 2040.

Christopher Michael Dawson was convicted on 30 August 2022 following a trial before his honour without a jury of the murder of his wife Lynette Dawson on or about 8 January 1982. Facts upon which his sentence are set out in his honour’s verdict judgment (R v Dawson [20221 NSWSC 1311).

Harrison J set out in his remarks on summary of the facts found against Mr Dawson. His Honour found that Mr Dawson killed his wife by a voluntary act performed by him with the intention of causing her death. His Honour found that this increased the objective seriousness of the offence of murder, in contrast or death caused by an act committed with the intention merely to inflict grievous bodily harm. As Lynette Dawson’s body has never been found, the precise way in which she died is not and cannot be known. This was found by his Honour to be an aggravating circumstance of the offence of murder, R v Wilkinson (No 5) [2009] NSWSC 432 [61]. Harrison J found that objectively the crime was a very serious one. His Honour found that Mr Dawson planned to kill his wife, and he did so in a domestic context.

His Honour, in accordance with s 28 of the Crimes (Sentencing and Procedure) Act 1999, considered victim impact statements read to the Court on behalf of Lynette Dawson’s daughter Shanelle, her brother Gregory, and sister Patricia. His Honour considered the subjective circumstances of Mr Dawson who was born on 1948 and was 74 years of age at the time of sentence. His Honour found that he suffered a fractured hip, a fractured rib and moderate aortic regurgitation. A brain scan on April 2021 revealed what appears to be microangiopathic vasculopathy. Dr Olav Nielssen who examined Mr Dawson on several occasions, found that he was suffering from a depressive illness. His Honour referred to a number of testimonials that spoke of Mr Dawson’s characteristics, as a “loving father, a dad and grandfather, and a loving and loyal husband’.

In respect of the issue extra curial punishment, his Honour rejected a submission by Greg Walsh that the extraordinary publicity was a matter that ought to be taken into account upon the sentencing of Mr Dawson. His Honour was referred to the findings of Fullerton J in R v Dawson [2020] NSWSC 1221 and the observations of Bathurst CJ in Dawson v R [2021] NSWCCA 117. His Honour acknowledged that the publicity has undoubtedly been intent on. However, his Honour made a finding that as Mr Dawson’s crime is a matter of intense public interest, such attention that he has received is directly referrable to that interest.

His Honour referred to the issue of delay and that Mr Dawson was to be sentenced at the time the offence was committed, in so far as those sentencing practices can be ascertained. His Honour rejected a submission by Mr Walsh that any delay between the commission of the offence and Mr Dawson’s arrest and trial were not attributable to the operation of the criminal justice system in the relevant sense. His Honour found special circumstances under s 44(2) of the Crimes (Sentencing and Procedure) Act 1999.


Dawson v R [2021] NSWCCA 117

The Honourable Justice Bathurst states “This case is an unusual one in that it involves both pre-trial publicity of an egregious nature and an inordinate delay in the bringing of the prosecution. The applicant’s complaint is that these matters in combination would render any trial necessarily unfair so that any conviction would bring the administration of justice into disrepute.”  continue to the judgment below…

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DVM v Children’s Guardian [2020] NSWCATAD 323

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 [2020] 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

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.

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.

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.

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.