Criminal

Joanne Young v Josephine Smith – Contempt [2017] NSWSC 1443

In this matter Greg Walsh acted for Joanne Young (Plantiff)

JUDGMENT

1 On 2 August 2016, the Contemnor, Ms Josephine Aapa Smith was found guilty of contempt of Court. The Court, as presently constituted, held that on 2 February 2015 the Contemnor dealt with property located at Wharf B, Level 5, Apartment 14, 56-56A Pirrama Road, Pyrmont (‘the Property”), by encumbering it by means of a mortgage in favour of Westpac Banking Corporation (“Westpac”) in circumstances where the Court had, to the knowledge of the Contemnor, restrained such conduct in relation to that property.

2 Having heard the parties on what, if any, sentence to impose, it falls on the Court to sentence the Contemnor.

3 The orders breached were orders of the Court, as earlier stated, restraining any dealing in the Property. The conduct giving rise to the contempt is described in the Reasons for Judgment, published by the Court and giving rise to the finding of guilt: Young v Smith (No 3) [2016] NSWSC 1051 (“the Judgment on Guilt’).

4 It is unnecessary to recite, in full, the somewhat complicated issues associated with the finding of guilt. It is sufficient, for present purposes, to reiterate that proceedings were commenced by the plaintiff, Mrs Joanne Elizabeth Young, initially against her former husband, Mr Leslie James Young, and, as a consequence of the initial proceedings, freezing orders issued against the husband and his subsequent partner, the Contemnor in these proceedings.

5 In the Judgment on Guilt, the Court set out a history of the proceedings (see [17] of that judgment and following). That history is relevant in understanding the objective seriousness of the matter with which the Court is now concerned and is in the following terms:

[17] The applicant, Ms Young, married Mr Young in 1992 and they separated in 1999. She was Mr Young’s second wife. The Contemnor, Ms Smith, is (or was at all relevant times) Mr Young’s de facto partner. She has been in that position since about 1999.
[18] At the time that Mr Young and Ms Smith commenced their de facto relationship, Mr Young’s assets consisted of 50% shareholding in a number of companies (the identities of which, presently, are irrelevant).
[19] In or about 2001 an agreement was executed which recited the contemplation of Mr Young and the Contemnor as to the purchase of residential property for the purpose of it being their residence, that the residential property purchased by them for their joint use, shall be the property of the Contemnor, regardless of the identity of the persons on the registered title.
[20] The applicant, Mr Young’s second wife, was the manager of a hotel owned by one of the companies of which she and Mr Young were each half owners. In July 2006, Mr Young removed the applicant from the hotel premises and made allegations that she had misappropriated monies belonging to the hotel. Those charges were all dismissed.
[21] The applicant brought proceedings against Mr Young for malicious prosecution and/or damages for related or similar causes of action. There were also proceedings relating to a property settlement claim that had been cross-vested from the Family Court of Australia to this Court.
[22] In May 2007, Mr Young and the Contemnor purported to enter into a contract for the purchase of a property at Pirrama Road in Pyrmont (“the Property”). They purported to be joint tenants. The purchase price was something over $4.5 million. The transaction was completed In or about July 2008 and funded through a loan extended to the company that owned the hotel, with Mr Young and the Contemnor each granting the lender a mortgage and guarantee.
[23] The proceedings for the property settlement and for malicious prosecution were heard by the Court and orders made on liability, with separate questions being referred to an Associate Justice. As a consequence of that referral, Harrison AsJ determined, on the basis of proceedings before her, that Mr Young’s assets were valued at or above $9 million.
[24] On 11 April 2013, the Court ordered that Mr Young pay the applicant $2,663,000 and weekly maintenance. Further, the Court found that Mr Young had deliberately deceived police in relation to the charges based upon allegations made by him and awarded damages for malicious prosecution of $165,000.
[25] On 23 September 2013, the residential premises said to be registered in the name of Mr Young and the Contemnor, and described above, were transferred to the Contemnor. Further, the hotel from which the applicant was excluded was sold in May 2014 and the company that owned it put into liquidation. The Liquidator realised its assets which included a car park adjacent to the hotel.
[26] On 5 June 2014 Bankruptcy Notice 172322 was issued at the instigation of the applicant in relation to the judgment debt. The Bankruptcy Notice could not be served.
[27] On 7 August 2014, the Contemnor, acting under a Power of Attorney on behalf of Mr Young, executed a Memorandum of Transfer between Mr Young and herself in relation to Mr Young’s interest in the Property. The purported consideration for the transfer was $1.8 million, which was never paid.
[28] On 29 August 2014, the applicant made an ex parte application to this Court for freezing orders. The Court made orders restraining Mr Young and the Contemnor from dealing with any of their assets, including the Property. until further order of the Court. That order issued on 29 August 2014. The judge who issued the orders was Bellew J. The terms of that order will be recited later in these reasons.
[29] On 1 September 2014, Mr Young initiated an application under s 55(2) of the Bankruptcy Act 1966 (Cth) in which he stated that his interest in the property was worth 50 per cent of $5.5 million and was sold for $1.8 million. The document, in the relevant column, or entry, indicated that Mr Young had received no money for that share or that transfer. Mr Young also identified the Contemnor as a secured creditor in or to the sum of approximately $4 million. Mr Young was declared bankrupt on 2 September 2014, on his own application. [Footnotes omitted.]

6 On 4 September 2014, the Court issued orders, the effect of which was to continue the orders issued by the Court on 29 August 2014 against both Mr Young and the Contemnor in these proceedings. On 2 February 2015, the Contemnor, in contravention of the said orders, entered into a mortgage over the Property and was advanced $5.8 million by Westpac.

7 The Contemnor breached the orders, issued by the Court on 29 August 2014 and continued by the Court on 4 September 2014, and that breach gives rise to the sentence to be imposed for contempt of Court.

8 On 15 April 2015, the Court (constituted by Sackar J) finalised the substantive proceedings, dealing with the ownership of property, and on 5 May 2015 issued orders giving effect to those reasons. The orders were altered on 6 June 2015 and the ultimate effect of the orders was that, subject to a registered mortgage, the Contemnor held the contentious property subject to a one half share on trust for Mr Young but not so as to interfere with any interest of the plaintiff in these proceedings.

Punishment for contempt

9 The power of the Supreme Court of New South Wales to punish for contempt arises from its status as a superior court of record. Contempt is a common law offence, punishment for which is an inherent power of a superior court of record. It is unnecessary here to deal with punishment in the face of Court to which the foregoing statements do not relate.

10 Pursuant to the powers described in the Supreme Court Rules 1970 (“SCR”), and in particular Pt 55 r 13, the Court may impose a penalty for contempt on an individual, being committal to a correctional centre or fine or both. Further, the Court may issue orders for punishment on terms, including suspension or part suspension and impose conditions for good behaviour and the like.

11 There are two types of contempt: civil and criminal. Criminal contempt is conduct that obstructs the administration of justice. Civil contempt is, essentially, the breach of an order or undertaking. However, where that breach is deliberate, being a deliberate defiance or a contumacious breach, contempt that is otherwise civil is considered to be criminal in nature: Witham v Holloway (1995) 183 CLR 525 at 530; [1995] HCA 3.

12 Further, the Court of Appeal has determined that contumacious, wilful and deliberate disobedience of a Court order may be characterised as both civil and criminal conduct: see Pang v Bydand Holdings Pty Ltd [2011] NSWCA 69, per Beazley JA; and Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21; and Witham v Holloway, supra.

13 Even “mere” civil contempt affects the administration of justice. The purpose of imposing punishment for wilful disobedience of a court order is to discipline the offender and to vindicate the authority of the court: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1986) 161 CLR 98; [1986] HCA 46 at [112].

14 The process of sentencing involves a sentencing judge arriving at and imposing a sentence appropriate to the gravity of the offence that was committed (objective seriousness) and to the circumstances of the offender who committed it (subjective circumstances), taking into account the purposes of sentencing. Those purposes include punishment; protection of society; personal and public deterrence; retribution; and reform: see s 3A of the Crimes (Sentencing Procedure) Act 1999 (“the Act”) and Veen v The Queen (No 2) (1988) 164 CLR 465 at 476; [1988] HCA 14:
“The purposes overlap and none of them can be considered in Isolation from the others when determining what is an appropriate sentence in a particular case. They are guideposts to the appropriate sentence but sometimes they point in different directions.”

15 The process, often referred to as intuitive synthesis, is one jn which the Court considers each of the factors as part of the objective or subjective circumstances (and in some situations both) to arrive at a result which seeks to achieve each of the purposes best.

16 In dealing with the objective and subjective circumstances of the offence and offender, the Court may have regard to the provisions of s 21A of the Act, although most of those criteria are factors to which a sentencing Court would, even in the absence of s 21A of the Act, have regard. Ultimately, the Court has a wide range of sentences that it may impose for contempt of Court: NCR Australia v Credit Connection [2005] NSWSC 1118.

17 The range of sentences includes imprisonment, periodic detention, home detention, community service orders, good behaviour bonds, dismissal of the charge accompanied by either a good behaviour bond or a condition that the offender participate in an intervention program, deferral of sentence, a suspended sentence, a fine, and the making of a non-association or a place-restriction order. Each of those is a potential punishment on Contemnors. The legislature has conferred on the Court the power to impose such punishment: In some instances, there are restrictions on the imposition of any such sentence.

18 In determining the sentence to be imposed, the Court is to consider the nature of the contempt committed: Commissioner for Fair Trading v Rixon (No 3)
[2014] NSWSC 1279, per Garling J. Those circumstances include: the nature and circumstances of the contempt; the impact or likely impact of the contempt on the administration of justice; the extent of the offender’s culpability for the conduct; the need to deter the offender and others from engaging in contempt; whether a finding of contempt has been previously made; whether contrition or remorse is displayed and an apology proffered; and the financial and personal circumstances of the offender when a fine is being sought: see also Paccar Financial Pty Ltd v Ian Menzies & Colleen Menzies (No 2) [2015] NSWSC 1622.

The nature and circumstances of the contempt

19 The circumstances immediately surrounding the contempt have been described above. So too has the background arising from the relationship between Ms Young, on the one hand, and Mr Young and the Contemnor, Ms Smith, on the other hand.

20 As at the time of the sentencing proceedings Ms Smith and Mr Young lived in the Property, a lavish apartment in Pyrmont, which, subject to the orders of the Court (Sackar J) is presently owned by Ms Smith as joint tenant with the trustee in bankruptcy of Mr Young. It is those premises that is the subject of a mortgage to Westpac, granted by Ms Smith, as a result of which Westpac provided a $5.8 million loan.

21 The monies that constituted the loan were provided to a corporate entity of which Ms Smith is the sole director and shareholder.

22 On the material before the Court the calculated estimate of the market value of the Property is between $4.6 million and $6.9 million (Affidavit Angela Skocic, 19 October 2016). I consider that calculation more reliable than the “as is” value of $4 million (Affidavit Krista Emma MacPherson at [4] and KEM-I thereto).

23 The plaintiff is owed approximately $3 million, pursuant to orders of this Court of 23 April 2013, by Mr Young. The orders followed the malicious prosecution proceedings reference to which is provided above: Young v State of New South Wales & Ors; Young v Young (No 2) [2013] NSWSC 330. Those monies have not been paid. Mr Young transferred 50%, being his share in the Pyrmont premises to Ms Smith and, as earlier stated, rendered himself bankrupt.

24 The money received as a result of the mortgage of the relevant premises was utilised for a business venture by the Contemnor through her company, Smith & Smith Investments Pty Ltd. Westpac appointed receivers and sold the hotel purchase with those funds. Apparently, the sale returned an insufficient amount to satisfy the mortgage and Westpac had not released Ms Smith in respect of the mortgage on the Pyrmont premises.

25 The hotel was sold in November 2015 for approximately $6 million, which while in excess of the original maximum facility with Westpac of $5.8 million, represented a shortfall of approximately $800,000, presumably as a result of the cost of sale and enforcement and interest (Affidavit Krista Emma MacPherson at [11]-[12]).

26 As was made clear in the Judgment on Guilt, the Contemnor was well aware that the Court had restrained her from dealing with the property in question.

27 Ms Smith’s awareness of the conditions imposed upon her by the Court is evidenced by the application made by Ms Smith that the orders of the Court be replaced by an undertaking on her part not to deal with the Property. Notwithstanding that knowledge, and in spite of it, Ms Smith obtained a financial advantage by deliberately dealing with the Property in contravention of the orders of the Court. She did so, at (east in part, for the purpose of obtaining a financial advantage. It seems, although it is unnecessary to determine this question, that part of the rationale for Ms Smith’s conduct also related to malice against Ms Young, either on her own part or reflecting the malice and state of mind of Mr Young.

28 The contempt is a very serious one. It is a deliberate and contumacious breach of orders issued for the protection of a party and, in the process, dealing with property that belonged to the plaintiff in these proceedings.

29 Further, the overwhelming inference is that the entire scheme was designed to thwart the plaintiffs attempts to obtain from Mr Young the damages that the Court had awarded. It involved the circumvention of a number of orders of the Court. It involved the transfer of the Property so as to ensure that Mr Young had no assets in his name to which the Judgment debt could attach and it involved a deliberate breach of orders of the Court for the purpose of obtaining a business or commercial advantage.

30 I consider the contempt a serious one and to be categorised as both civil and criminal contempt. The conduct is well above the mid-range in objective seriousness for a contempt. Further, the semi-public disregard and disobedience of orders of the Court is a significant undermining of the authority of the Court and affects the administration of justice.

Subjective circumstances

31 The Contemnor has relied upon a number of exhibits, some of which have been referred to above. Ms MacPherson exhibited to her Affidavit the valuation on an “as is” value basis of the Property and media coverage relating to Ms Smith’s conduct and/or the Judgment on Guilt, together with other Judgments in the wider justiciable controversy. Part of the material upon which the Contemnor relies is an issue or issues relating to her health.

32 Ms Smith’s health issues are, on the evidence adduced in the proceedings, considerable. I have been provided a report by clinical psychotherapist, Ms Odelia Carmon and a report by Professor Frederick Ehrlich OAM. There are also reports from Dr Jerry Greenfield, endocrinologist, Dr Michael Talbot, Dr Nesran Varol, Dr Julie Epstein, consultant physician, reports on imaging to various doctors and reports from her general practitioner, Dr Dror Schmuelly.

33 The Contemnor refers to the fact that she has no criminal history. Nor has she previously been charged with any criminal offence. The contempt proceedings are the first ever contact with a penalty or punishment proceedings before a court.

34 It is necessary to deal with the medical issues, although, in so doing, the Court will seek not to disclose unnecessarily matters that are and ought to remain confidential. Some disclosure is necessary. In or about May 2010, Ms Smith was diagnosed with a 1.5 cm meningioma which encased the carotid artery causing some deformity and elongation. There was some inferior extension, but otherwise the cerebral MRI showed no abnormalities. The meningioma was removed and by May 2015 there was no evidence of any recurrence and her brain had stable appearance and no recurrence.

35 In 2009 Ms Smith suffered from a neurological disorder and seizures seemingly related to a multisystem failure after a mosquito bite in South Africa in December 2005. A number of treatments were attempted, which were unsuccessful but, ultimately, she was treated with Nutropin which resulted in her being able, once more, to walk and to give up reliance on a wheelchair, as was previously the situation. She will continue to have balance problems and to use a walking stick.

36 A summary of the conditions suffered by Ms Smith is contained in the report of Dr Schmuelly of 6 February 2015, which forms part of Ex 2 in the proceedings.

37 Professor Ehrlich’s report of 28 September 2016 also forms part of Ex 2. He refers to the multisystem breakdown relating to a virus from the mosquito bite and also to the history given to him of three heart attacks, a kidney failure, lung failure and major neurological problems as a consequence of which she spent three years in a wheelchair.

38 Professor Ehrlich referred to the effect of these illnesses on her business ventures which she was required, during that period, to “sell … at a loss” and “her feelings when having to deal with distress sales”. He also referred to a series of family tragedies, with numerous deaths, having to attend funerals and cope with relationship problems.

39 At the time, according to the history given to Professor Ehrlich, she was consuming approximately 2 bottles of wine each day and a half a bottle of single malt whiskey.

40 The family tragedies seem to have affected Ms Smith more as a consequence of her place in the Samoan community and the fact that members of her family of origin were the founding fathers of the Samoan Congregational Church. She also fulfils major familial and cultural duties assigned to her by her family (Ex 3).

41 Professor Ehrlich suggests that Ms Smith was “unaware of the Court order which was issued whilst she was overseas” and that “she was not made aware of it on her return”. With respect to Professor Ehrlich, he may have been given that history but the history is inconsistent with the events in Court and in the precincts of the Court, including applications made by her through counsel which disclose a clear understanding of the nature of the restrictions imposed upon her.

42 Professor Ehrlich suggests that “her capacity for processing information and applying effective judgement must be considered to have been significantly impaired”. The report was not the subject of cross-examination and I accept that opinion.

43 Nevertheless, the opinion is based upon some assumptions of fact, which are not borne out. The Court has already referred to the awareness by Ms Smith of the orders issued and her understanding of the orders that Issued. Further, the breakdown in her relationship with Mr Young, to which Ms Smith referred Professor Ehrlich, either did not occur at the time or was not at all acrimonious. In evidence as Annexure A to the Affidavit of Angela Skocic of 20 October 2016 are photographs of Ms Smith with Mr Young taken and posted on Facebook at a time during which it was said their relationship had “broken down”.

44 The other issue to which reference needs to be made is the report of clinical psychotherapist, Ms Odelia Carmon. I will not detail the history recited by Ms Carmon. Ms Smith did not give evidence. Some of that history would require direct evidence for it to be taken into account as part of the early childhood of Ms Smith, particularly the allegations of abuse from the age of nine until the age of 22 years.

45 I accept that Ms Smith’s actions may result, at least in part, from a life filled with responsibilities to others and unfulfilled personal expectations and her need to become secure, independent and self-sufficient. do so without necessarily accepting the history that may have led to that.

46 I also accept a degree of cultural tension that defines Ms Smith’s self-image and causes problems with self-management. The report from Ms Carmon expresses the view that Ms Smith genuinely regrets her action in breaching her obligations to the Court. Unfortunately, that was not the subject of any evidence from Ms Smith and J have significant doubts as to the degree of Ms Smith’s remorse.

Consideration

47 The Court accepts that there are a number of subjective mitigating factors in determining an appropriate sentence. I accept that the Contemnor has had a significant medical and psycho-social history, involving a brain tumour and a number of other illnesses, some of which were caused by an unfortunate viral infection from and/or in reaction to a mosquito bite in Africa.

48 Ms Smith was 46 years of age at the time of the contempt, namely February 2015. As has been made clear earlier in these reasons, the Contemnor has not before been before a court and is entitled to the leniency of a first offender. accept, also, that there was some impairment to Ms Smith’s capacity for executive decision making on a rational basis around the time of the contempt.

49 I do not accept that the Contemnor and Mr Les Young had severed their relationship at the time of the contempt or very soon thereafter. I do accept that the Contemnor deliberately and contumaciously contravened the order of the Court prohibiting her from dealing with the Property, which she mortgaged in order to obtain a benefit of $5.8 million (or the use of the funds for business purposes). I also accept that the breach of the order was part of a wider plan the effect of which was intended to deprive Ms Young of enforcing other Court orders, cocooning the assets into the name of the Contemnor and away from Mr Young, and thereby seeking to prevent Ms Young from enforcing her judgments.

50 Further, the conduct of transferring the property from Mr Young to the Contemnor (and, in the case of the Contemnor, accepting that transfer) and mortgaging the property, was done without any notice to any person, in circumstances where Ms Smith was at that time before the Court. The transactions were deliberately concealed from the Court and Ms Smith allowed the proceedings to continue on a false premise, known to her and which she hid from others. Part of that process included misleading Westpac as to the position of the apartment and its history.

51 It is clear that the Contemnor was motivated, in part, by financial gain and probably as a matter of malice towards Ms Young. The former has been proved beyond reasonable doubt. The latter is disregarded because it has not been proved to that required standard. The contempt (and the larger financial arrangement of which it formed part) was otherwise performed for the benefit of Mr Young, her then partner.

52 As previously stated, an assessment of the objective seriousness of the offence puts it above the mid-range in seriousness and it is clear that the contempt offence was not, in the least, technical. It was a wilful, deliberate and contumacious contempt being an intentional disobedience involving a conscious defiance of the authority of the Court and a deliberate attempt to subvert the orders imposed upon her.

53 As a consequence Ms Smith’s intentional conduct also involves the knowing defiance of the Court’s order and authority and the sentencing must achieve a purpose that involves both general and specific deterrence.

54 The consequence of the mental and other medical conditions of the Contemnor render the general and specific deterrence less significant than it might otherwise have been and render the Contemnor Jess appropriate as an example in relation to general deterrence. Ms Smith’s behaviour was described as “surreptitious” by the Court (Young v Smith (No 2) [2015] NSWSC 1267 at [36]-[37]. However, some general and specific deterrence is required. The medical conditions of the Contemnor, including her restricted mobility, make prison a more onerous punishment.

55 Further, the fact that the business for which Ms Smith borrowed the money did not succeed is a matter wholly unrelated to the contempt. The money was borrowed for the purpose of making a profit. The mortgage was effected in order to gain security for the borrowed monies.

56 Notwithstanding the comments in the report of Ms Odelia Carmon, there has been no apology or public expression of contrition.

57 Moreover, the publicity occasioned in relation to the conduct of Ms Smith js not an extra curial punishment. It is the natural result of conduct by a person in utter defiance of the orders of a court. In the absence of the rule of law, we would all live in a state of chaos. Courts adjudicate the rights of the members of society as between themselves. It is not for a member of society to snub that adjudication for self-interest.

58 If the published material about the conduct of Ms Smith was defamatory, then Ms Smith would have a cause of action. I do not consider the publicity given to the conduct of Ms Smith or the Judgments of the Court concerning her conduct to be a form of extra curial punishment. Nor, in this case, do consider that it ameliorates the punishment that otherwise ought to be imposed.

59 As a consequence, the Court shall impose a penalty. I reiterate the comments made in relation to financial penalties where the motive is financial gain. Democracy, as we know it, depends upon the rule of law and the obedience of members of the community of the orders of the Court.

60 Moreover, I do not accept the submission, put on behalf of Ms Smith, that no damage or prejudice has been suffered by the plaintiff. The stress associated with litigation of this kind and the years of litigation leading to the orders that ultimately were made by the Court, involve a stress beyond the stress of winning or losing and beyond the stress associated with the requirement to meet legal costs to enforce rights that ought not have needed to be litigated.

61 Notwithstanding the subjective circumstances to which Ms Smith has pleaded in relation to her conduct, I consider, bearing in mind both the objective and subjective circumstances of the offence, that a custodial sentence is warranted. I also consider that the only proper disincentive to other persons seeking to obtain a profit by the deliberate defiance of Court orders is to impose a monetary penalty.

62 The Court makes the following orders:

(1) The Court records a conviction for the offence of contempt committed by Josephine Aapa Smith (“the Contemnor”);
(2) The Court sentences the Contemnor to a term of imprisonment of 6 months, fixed term. The Court suspends execution of the whole of the sentence for a period of 6 months and directs that the Contemnor be released from custody on condition that she enter into a good behaviour bond for the said period of 6 months. The sentence will commence on and from 25 October 2017;
(3) The Court imposes a fine on the Contemnor of $50,000, in addition to the foregoing sentence of imprisonment;
(4) The Contemnor shall pay the plaintiffs costs of and incidental to these proceedings on an indemnity basis;
(5) Any party who seeks a different or special order as to costs may apply within seven (7) days of the date of this Judgment by filing a submission with the Associate to his Honour Justice Rothman. Such submission shall be no more than three (3) pages in length. Any party affected by any such application may reply to said application by a submission of the same length within 7 days of receipt of the application.

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HUGHES v THE QUEEN [2017] HCA 20 (14 June 2017)

In this matter Greg Walsh acted for Robert Hughes, the Appellant.

The High Court, by majority, dismissed an appeal form a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales. A majority of the High Court held that tendency evidence admitted against the Appellant was admissible under s.97(1) of the Evidence Act 1995 (NSW).

The Appellant was arraigned in the District Court of New South Wales on an indictment that charged him, in 1 1 counts, with sexual offences committed against five female children under the age of 16 years. The Complainants were aged between 6 and 15 years at the time of the offences. The acts charged in each count and the circumstances of their commission varied. The Prosecution gave notice that it would seek to adduce evidence from each Complainant and from other women as ‘tendency evidence’. The Prosecution identified the tendencies of the Appellant that it sought to prove as including, first, the Appellant having a sexual interest in female children under the age of 16 years and, secondly, the Appellant using his relationships to obtain access to female children in order to engage in sexual activities with them.

Section 97(1)(b) of the Evidence Act excludes evidence of the character, reputation or conduct of a person to prove that the person has or had a tendency to act in a particular way or to have a particular state of mind (‘tendency evidence ‘), unless the Court thinks that the tendency evidence will have “significant probative value”. The Appellant, applying for an order for separate trials, challenged the admissibility of the tendency evidence on the basis that it lacked sufficient similarity to the charged conduct to have ‘significant probative value’. The trial judge held that the probative value of the tendency evidence was significant in circumstances in which the fact in issue in each count was whether the charged sexual conduct occurred, and so admitted the evidence. The jury returned verdicts of guilty on 10 counts. The Appellant appealed his convictions to the Court of Criminal Appeal, relevantly contending that tendency evidence did not possess ‘significant probative value’. The Court dismissed the appeal.

By grant of special leave, the Appellant appealed to the High Court. The Court held, by majority, that s.97(l) of the Evidence Act does not condition the admission of tendency evidence on the Court’s assessment of operative features of similarity between the tendency evidence and the conduct in issue. In cases where it is the occurrence of the offence charged that is in issue, the majority reasoned that evidence will likely have significant probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged.

The Court further held, by majority, that the tendency evidence adduced at the Appellant’s trial possessed ‘significant probative value’ in relation to each count for which it was

adduced. When considered together, the tendency evidence showed the Appellant’s tendency to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the Appellant’s conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal.

The Court further held by majority, that the tendency evidence adduced at the Appellant’s trial possessed ‘significant probative value’ in relation to each count for which it was adduced. When considered together, the tendency evidence showed the Appellant’s tendency to engage opportunistically in sexual activity with female children despite a high risk of detection. That evidence was capable of removing doubts about the Appellant’s conduct and so was significantly probative as to whether the charged offences occurred. Accordingly, the majority held the tendency evidence was admissible, and dismissed the appeal.

The Queen v Adam Filippone [2016] NTS C67 (24 March 2017)

Greg Walsh acted for Adam Filippone (‘The Accused”) who was charged with murdering Peter Wayne Murphy (“The Deceased”) on 17 August 2008. In the alterative, he was charged with one count of assisting Gregory Alan Russell (“Russell”), who had committed the murder in order to enable Russell to escape prosecution. Russell committed suicide on 7 May 2010 and was never charged for the homicide.

The Deceased resided in Central Australia. He had for some time lived and worked in Yuendumu Community. In the six (6) weeks prior to his death he had been living in Alice Springs.

The Deceased went missing on or about 17 August 2008. The Crown case was that between August 2008 and May 2010 Adam Filippone and Russell had relocated to Queensland in late 2008. Prior to his suicide, Russell spoke to his then partner, Wendy Hassett, who recorded that conversation. Russell admitted killng the Deceased and said that “Wog” (Adam Filippone) was present and involvéd in the killing. He marked the map depicting where the murder took place and where the Deceased’s body could be found. Police then located the Deceased remains in a shallow grave.

The autopsy established that the Deceased suffered two bullet holes to the left side of his skull and blunt force trauma to his left cheek.

Adam Filippone was extradited to the Northem Territory from Queensland on 15 May 2010. According to Sergeant Richardson, who had taken over the “cold case” investigation against Adam Filippone, he the Accused had given a hypothetical scenario in which though not responsible for the murder was present when the Deceased was killed. That conversation was not recorded.

The Crown provided Notices under s.67 of the Evidence (National Uniform Legislation) Act (NT) (“UEA”) of the Crown’s intention to adduce hearsay evidence. Objection was taken to the admission of part of the evidence including the alleged verbal conversation on 15 May 2010 between Adam Filippone and Richardson.

In the course of voir dire, a number of crown witnesses gave evidence. These were Gemma Beattie, Peter Goodwin, Tamara Murphy, Wendy Hassett and Detective Sergeant David Richardson. Blokland J set out in her judgment the outline of facts giving rise to the issues to be determined on the voir dire (9-54).

The evidence disclosed that Tamara Murphy, the wife of the Deceased, had spoken to Russell on a number of occasions and was highly critical of the Deceased. She said to Russell “Somebody needs to bump him off but he was that much of a tightass, he only had a $100, 000 life insurance policy”. The Deceased told Tamara Murphy that it would cost $10,000 to “knock off” the Deceased.

On 18 June 2008 Russell handed Tamara Murphy a small silver hand gun wrapped in a shirt. She placed it in a safe in her bedroom. Her boyfriend, Adam Moore, and her son Lee Murphy both saw the pistol in that safe.

The Deceased was a heavy gambler and was also involved in drugs. Russell told others that the Deceased owed him money.

On 17 August 2008, at about 8:00am, Adam Filippone, Steve Williams, Rodney Mosley and Thomas Spence, started working at the Target project “topping” floors. At about 9:00am Russell received the firearm from Tamara Murphy. He told her that he was going to go to 17 Standley Crescent to do his washing. Her Honour then sets out in detail the facts as they unfolded as it were. On 17 August 2008 the Deceased asserted that he was working at the Target project from about 7:30am-8:00am until 5:30pm-6:00pm. He thus could not have accompanied Russell in picking him up from the Town and County Hotel and taking him approximately 90 odd kilometres to the Plenty Highway where he was assaulted and shot. Telstra records showed that there were no calls made by the Accused on his mobile phone between 12:02pm and 3: 14pm. According to Steve Williams the group worked half a day and they did not finish at the site until between 1:00pm and 2:00pm. The security guard on the site confirmed no workmen were present at the site when he inspected it at 2:00pm.

According to Leisa Ford, at about 1:30pm, she saw Russell’s vehicle travelling on the Stuart Highway and two other males in the front of the vehicle. She identified two of the males as Russell and Adam Filippone.

As her Honour set out in the judgment, Gemma Beattie and Wendy Hassett played active roles in respect of cleaning the possible murder weapon and it being buried in a shed floor at Wendy Hassett’s home.

The Crown’s case that the Accused and Russell were good mates and frequently had contact with each other.

Adam Filippone was arrested in Queensland on 1 1 May 2010 and extradited to Alice Springs. On the plane to Alice Springs, Detective Richardson alleged that he spoke to Adam Filippone, who in effect was present when the Deceased was killed by Russell.

Blokland J referred to Conway v The Queen [2000] FCA 461; (2000) 98 FCA 204 and the High Court decision in Sio v The Oueen [2016] HCA 32 at [68], [70] and [71].

Blokland J excluded a number of items in the hearsay Notices. In respect of the representations made by Russell to Wendy Hassett on or about 7 May 2010 that he, Russell, had killed the Deceased and that the Accused had helped him, her Honour said:

“Further, the way the recorded conversation commenced reeks of a setup or staged conversation, “Hassett: What happened? Tell me. I ‘m going through hell Greg… with… You fuckin gotta tell me what’s happened. Be honest. I know someone else was with you. What happened? Just tell me “.

Her Honour made a finding that Wendy Hassett had not satisfactorily explained why the conversation commenced in this manner. Her diary notes indicate detailed interactions with Police including a discussion to the effect that she may go to prison, that she knew Police had spoken to others including Adam Filippone and that she would help Police obtain a confession from Russell. Her Honour was not satisfied as to the reliability of the circumstances in which any of the representations against Adam Filippone were made. In fact her Honour found that the representations were made positively unreliable. Her Honour noted that in Sio it is not the truthfulness of the witness or the representation that this is the focus but rather the circumstance in which the representation is made.

In respect of the conversation between Sergeant Richardson and Adam Filippone, on 15 May 2010, her Honour rejected the admission of this conversation. The circumstances in which the alleged conversation purportedly took place were indeed extraordinary. Sergeant Richardson took no note of the alleged conversation in the plane between himself and Adam Filippone. According to Richardson he told Filippone that he would only record the conversation in an interview. The Accused told him that he wanted to speak to his Lawyer, Richardson arrived back in Alice Springs with the Accused on the afternoon of 15 May 2010. He made no note of the conversation (according to Richardson he was being fair as he could to the Accused). Richardson in the voir dire said that he was not relying on the conversation. He didn’t believe it was admissible. There was no record of him having told Detective Hamlyn about the conversation. At no time did he attempt to record an interview with the Accused.

Once they arrived in Alice Springs Adam Filippone was taken to the Alice Springs Watch House. There was no further attempt to obtain any record of the conversation on the plane which Richardson alleged that had taken place.

Sergeant Richardson did not attempt to use the evidence of the so called conversation at the bail hearing or committal hearing. He had every opportunity to do so. Sergeant Richardson gave evidence at the committal hearing against the Accused on Il October 2010. He gave no evidence of the conversation at the committal. The Accused was discharged at the conclusion of the committal proceedings. Sergeant Richardson did not tell the Prosecutor about the conversation as according to him he didn’t think it was admissible.

At the coronial inquest in April 2011 Sergeant Richardson gave no evidence of the conversation but was present when the Accused gave evidence. The Accused denied in his evidence he was present or involved in the killing. It was only at that time that Richardson reminded Counsel assisting the Coroner of the conversation in the aeroplane. He gave a note to Counsel assisting, on a piece of sticky paper, which can no longer be located. Sergeant Richardson made a statement on 27 August 2014 outlining the conversation. Her Honour referred to section 142(1) Police Administration Act (NT) that evidence of an admission by a suspect made to a Police Officer is not admissible as part of the prosecution case except in circumstances provided for in s 142(1)(a) and (b). that is The confession or admission will be admissible if, in the circumstances provided for in (a), the substance of the confession or admission is confirmed by the person concemed, and with respect to (a) and (b) the confirmation or admission was electronically recorded and that recording is available to be tendered. Admissions outside the scope of 142 (1) (a) and (b) will note be will not be admissible unless the Court exercises a discretion in favour of admission under s. 143. Her Honour rejected the admission of the conversation that was alleged to have taken place on the aeroplane.


NTNews – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court

News.com – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court

R V Adam Filippone – [2017] SCNT

Adam Filippone was charged with murder and being accessory after the fact of murder arising from the death of Peter Murphy on Sunday 17 August 2008.

Greg Walsh represented Adam Filippone in the successfully defence of these charges which were heard over five (5) weeks in a trial conducted in the Supreme Court of the Northern Territory at Alice Springs. The trial was presided over by Justice Blokland and a Jury.

The charges against Adam Filippone had an extraordinary history as he had been, years earlier, cleared at a committal hearing conducted in Darwin. Police were successful in obtaining a coronial inquest and in 2013 Adam Filippone was charged with murder of being accessory after the fact by x-officio indictment. The killer of Peter Murphy was Greg Russell, an acquaintance of Adam Filippone, who worked as a tiler together with his wife Donna in Alice Springs and various other places in the Northern Territory. The Crown theory was that Adam Filippone, because of his closeness of his relationship to Greg Russell, was involved in the killing or otherwise assisted him after the killing.

On the day of the disappearance ofPeter Murphy, Adam Filippone was working at the Target Plaza redevelopment at Alice Springs as a tiler. He started work around 7:30am and was still at the plaza until about 5:30pm to 6:00pm. The Crown’s theory was that Greg Russell and the Accused had met Peter Murphy sometime just after 1:00pm and had driven him from Alice Springs approximately 95kms away to the Plenty Highway where he was assaulted, killed and then buried. They then returned to Alice Springs arriving at about 3:12pm. If the Accused’s alibi was correct he could not have been present when Peter Murphy was murdered.

In order to obtain evidence against Mr Filippone a Senior Police Officer, Detective Sergeant

Richardson, went to extraordinary lengths to co-opt on Wendy Hassett, the then partner of

Greg Russell, to make admissions not only against himself but also against Adam “Wog” Filippone. Wendy Hassett who had been actively involved in cleaning a gun that may have been used in the murder at the direction of Greg Russell together with his daughter Gemma Beattie had been alerted to reward money being available by Richardson. In lengthy conversations, none of which were recorded or a note made, Richardson played a central role in influencing Hassett to purchase a recorder and then record a dying declaration of Greg Supreme Court ofthe Northern Territory

Russell. He drew a map identiWing the approximate burial site and in what could only be termed and orchestrated conversation implicated Adam Filippone being present. The next morning when Hassett left their house Russell took his own life in the garage. Hassett returned home with her mother in the car and ran over Russell’s body.

The Crown case relied upon a “Motley” of witnesses including the estranged wife of Peter Murphy, one Tamara Murphy. She had secreted a gun for Greg Russell who had lived at her house for some time. She did so even though she had children in the house. She gave to Greg Russell the gun on the morning of 17 August 2008. She had spoken to Greg Russell about her estranged husband including discussions with him involving his death.

Tamara Murphy had actively encouraged Greg Russell yet was never charged with any criminal offence. Her evidence was severely undermined in a withering cross examination by Phillip Boulten SC with whom Greg Walsh appeared in the trial. She, like many of the Crown witnesses, were utterly destroyed in cross examination and in particular as to her motives against her estranged husband Peter Murphy. There was no doubting that she had a romantic interest in Greg Russell and even denied a photograph which clearly showed her on the bonnet of Greg Russell’s car pleading with him not to leave her home during her birthday party and her ‘undying’ love for him.

A critical part of the Crown case was the reliance of the Crown upon tower telephone records. According to the Crown Prosecutor, David Morters, these demonstrated conclusively that the Accused was not working at the plaza site on the afternoon of 17 August 2008. However experts called by the Crown conceded that this was a real possibility that having regard to the configuration of the towers at Alice Springs, mobile phone calls could be received which could not conclusively establish where the call had emanated from. This fact was always known to investigating Police and the Crown Prosecutor. Remarkably, investigating Police did not seek to obtain critical phone tower records relating to Peter Murphy’s phone nor other witnesses who were working with Adam Filippone on the 17th of August 2008. These records were in existence up until approximately 2015 and despite the investigations being ongoing for many years, Police conveniently took no steps to obtain these vital records.

Adam Filippone’s wife Donna gave evidence. The Jury deliberated after lengthy directions by Justice Blokland and after approximately a day and a half returned their verdicts of not guilty as to each of the charges.


NTNews – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court

News.com – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court

R v Reynolds and Small [2010] NSWSC 691

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

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

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

A full copy of the judgement can be read here

 

R v Mendelow (Unreported) NSWDC per Flannery DCJ

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

R v DS and HJ (Unreported) NSWDC per Bennett DCJ

Mr Walsh successfully represented accused DS who was charged with sexual assault after events that occurred in a mosh-pit at popular concert venue the Horden Pavilion. The case involved the wrongful identification of the accused after key witnesses searched through photos of the night posted on facebook and saw the accused near by to them. All charges against the accused were dismissed after a lengthy examination of facebook and internet materials.

The allegations were that the accused and co-accused entered a concert venue in late 2010 where they moved through the crowd to the front of the most-pit. It was then alleged that they had a conversation with the female complainant and the complainant’s aunt, aged 15 and 16 respectively, while waiting for the concert to begin. At this point neither of the girls turned around to look at the face of the people talking to them. It was then alleged that during the show the accused sexually assaulted her while inside the mosh-pit.

After the events of the concert the complainant disclosed to her aunt what had happened to her. The two girls looked through the aunt’s camera and eventually found a picture where the accused could be seen standing in the crowd some distance behind the girls. The accused stood out as he was quite tall and had hereditary discolouration under his eyes.  The next morning the two girls went online to a photographers website who took photos at the concert, on this site they found photos of the accused near, but not directly behind, the complainant.

A complaint was then made to police who tracked down and eventually charged the accused.

Mr Walsh ran a 2 week pre-trial application to exclude the evidence of photographs posted over facebook to identify the accused. In the proceedings it was uncovered by Mr Walsh, and Mr Charles Waterstreet for the co-accused, that the aunt of the complainant had only observed the accused in photographs accidentally taken by her and over facebook.

Mr Walsh was successful in the pre-trial application and the evidence gathered over facebook was excluded. All charges against the accused were dismissed.

Council of the Law Society of NSW v Fitzsimons (ADT Legal Services Division)

In this matter Greg Walsh acted for Maria Fitzsimons who was the subject of a complaint of professional misconduct by the Council of the Law Society of New South Wales.

The Council of the Law Society of New South Wales alleged that Maria Fitzsimmons was guilty of professional misconduct on 3 matters, namely:

  • The Solicitor misappropriated trust monies
  • The Solicitor misled or attempted to mislead the Law Society
  • The Solicitor made a false Statutory Declaration

Maria Fitzsimons is the wife of Christopher Ronald  Fitzsimons who employed her as a Solicitor.  On 2 December 2005 the sum of $603,097.47 was deposited into the joint account of the Solicitor and her husband and in doing so it was contended by the Law Society that she mis-appropriated that sum.  A sum of $603,097.47 funded other withdrawals from the joint account.

The deposit slip was forensically examined by Mr Paul Westwood a forensic doctor and examiner who concluded that it was highly probable that the questioned documents were written by the writer of the M Fitzsimons specimens.

The solicitor was admitted in the Supreme Court of NSW on 19 May 1990.  She filed to reply in which she denied the allegations and facts pleaded in the application.

The Law Society relied on affidavits of Raymond Collins, Jean Slayer and Paul Westwood.

There was no dispute between the parties that the monies subject of the deposit into the joint account were misappropriated.  The issue was who did the misappropriation?

The solicitor’s husband admitted that he had misappropriated the monies and he had deposited same into the joint account.  His evidence was contradicted by Mr Westwood’s evidence and the volume of other evidence which put at issue the accuracy and veracity of his evidence.  In particular what was his physical whereabouts on 2 December 2005 and his ability to carry out the alleged actions.

Mr Fitzsimons gave evidence that he was in Sydney on 2 December 2005 and had flown to Cairns on 29 November 2005 at 15:30 on a flight operated by Virgin Airlines.  This was confirmed by records produced by that airline.  On 2 December 2005 at 12:21 Mr Fitzsimons made a call lasting 30 seconds from Buckham Point (near Cairns) to a number in Sydney.  He gave evidence that he was in Cairns in the morning and came to Sydney in the afternoon.  He had no independent recollection as to when he left Cairns to come to Sydney.

In cross-examination he conceded he did not have a strong recollection of the period of late November through to December 2005 as he was suffering from a significant psychiatric illness.  He agreed that it had been “a very, very long time of madness”.

Mr Fitzsimons gave evidence as to him diverting the call made from Saddle Mountain at 15:04 on 2 December 2005 which placed him in Queensland at about 3.00pm.  He gave an explanation that caretakers were responsible for the diversion of calls.  He clearly recalled flying from Cairns to Sydney on the afternoon of 2 December and he thought it was a Qantas flight.

Mr Fitzsimons insisted that he deposited the cheque for $603,000 on 2 December 2005 and denied that he was “covering” for his wife.

It was the solicitor’s evidence that she had been relentlessly persecuted by the Law Society in pursuit of a conviction against her husband.  She denied that she had deposited the monies and denied that the handwriting on the deposit slips were hers.  Mr Raymond Collins was the subject of cross-examination.

The solicitor asserted that her affidavit was true and correct.  She informed the Law Society her husband had undergone a brain scan for a diagnosis of “a brain tumour”.  She had not seen the results of the scan and she had not attended any specialist doctors appointments with him regarding the brain tumour during the period before 29 November 2005.  She denied that she had made a false statement to the Society to the effect that she was “nursing a sick husband full time.

In cross-examination she asserted that she needed to stop fighting with the Law Society because she had been diagnosed with cancer.  She was aware that her husband was subsequently diagnosed with Bipolar Disorder, Alcoholism and a variety of physical and psychological conditions and was a chronic gambler.

The solicitor gave evidence that she was filled with emotion and worry about her husband and was more concerned about his ill health.  She agreed that all of her submissions (which she was the author) could not have been right and the inference was that they to some extend had been misleading.  She conceded she could have been more frank in her responses to the Society.  She now accepted that she misled the Law Society and that conduct was unacceptable.

The Tribunal found that the solicitor had misappropriated the monies and misled the Society.

Greg Walsh submitted to the Tribunal that according to the Brigenshaw doctrine the Tribunal had to be extremely careful in accepting the evidence of Mr Westwood, the handwriting expert, the solicitor’s motive to misappropriate monies and her opportunity to do so.   Greg Walsh submitted that there were significant limiting factors to Mr Westwood’s evidence in his reports.  The issue of motive was one that the Tribunal ought to be very careful about relying upon as there was evidence of the solicitor and her husband had available funds of $495,000 at the relevant time and that neither she nor her husband were in financial difficulties at that time.  See R v Tsingopoulos [1964] VR 676 at 681 Deane J; Plomp v R [1963] 110 CLR 234; R v Griffiths (1994) 125 ALR 545; R v Greene (2002) 4 VR 471; Chamberlain v R (No.2) (1984) 153 CLR 521; De Gauchy v R (2002) 211 CLR 85.

The Tribunal observed that for the misappropriation to be established it is necessary that the alleged converter intended to do that which would deprive and impair the owner’s immediate right to possession or the intention to do the act in dealing with the thing, but not wrongful motive is required and it is not necessary that the converter did intend to challenge the owner’s right to possession.

The Tribunal observed that it is not necessary to establish that she knew or believed or intended that her actions were dishonest and what must be established is that she subjectively intended to do the acts that are said to be objectively dishonest by reference to the ordinary standard of reasonable and honest people.  See Bell J in Brereton v Legal Services Commissioner [2010] VSC 378.

The Tribunal also considered the decision of Brereton in Council of Law Society of NSW v Clapin [2011] NSWADT 83 at [26].

The Tribunal ultimately rejected Mr Fitzsimons’ evidence that he deposited the cheque on 2 December 2005 and that he misappropriated the money.  The Tribunal made a finding that he was “a fabulist, bombastic person who is quick to give evidence on matters of which he says he has no recollection.”  He was a witness who regarding his conduct in misappropriating client’s money as being an achievement and appeared to be proud of that achievement and had no remorse.  The Tribunal did not accept his evidence and he returned to Sydney on a Qantas flight on 2 December 2005.

The matter has been stood over for further directions as to penalty.

R v JF (Unreported) NSWDC per Woods QC DCJ

In this matter Greg Walsh acted for JF (“the Accused”) who was charged with seven (7) counts of sexual assault upon his step-daughter (“the Complainant”).  The allegations were from 1999 until 2005.

The allegations commenced with an alleged incident in 1999 when the Complainant was aged eight (8). She alleged that, in the shower of the family home, she was subjected to an act of oral intercourse.

Later in the same year, the Complainant alleged that she was asleep in her bedroom with her sister when a similar act was perpetrated upon her and then an act of vaginal intercourse was alleged to have taken place.  At the time the Complainant was aged eight (8).

A further act of alleged oral intercourse was also alleged in similar circumstances to that of the previous incident.

There was a further incident in the context of the Accused explaining circumcision to the Complainant when he showed her his penis.

Thereafter there was a further alleged act of penile/vaginal intercourse.

The last incident was alleged to have occurred in the first half of 2005.

The Complainant tragically had a history of self-harm and suicidal ideation.  Her natural father had separated from her mother several years before the alleged incidents and had then left Australia to live overseas.  This had a significant impact upon the Complainant.

The Complainant had a very difficult relationship with the Accused (her step-father).  It was apparent that they clashed about most things and clearly did not get on.  The Complainant was very unhappy and felt that she was treated in a belittling fashion by the Accused.

The Complainant confided in her teacher of the degree of unhappiness that she had at home.  She was spoken to by a School Principal and denied any inappropriate conduct on the part of her step-father.  The teacher to whom she had spoken then travelled overseas, at which time the Complainant and the teacher commenced to communicate with each other by way of emails.  The teacher had a belief that the Complainant had been sexually assaulted by her step-father and to this the Complainant told her that that was not the case.

The Complainant was self-harming though this fact was not known even to her mother or the Accused.

In 2008, the Complainant spoke to a counsellor who told her that she had been sexually assaulted and that she should accept that as a fact.

At the commencement of the trial, issues relating to sexual assault communications privilege arose. It was apparent on the face of the Complainant’s statement that she had come to a belief that her symptoms of self-harm, depression and anxiety must have been attributable to a traumatic force in this case sexual abuse.  She communicated her views at varying times to a number of other people including her mother and other friends in the area in which she lived.  In one document, she expressed a number of theories about her symptoms but in doing so did not make any reference to the specific allegations that ultimately came to be the subject of the charges against the Accused.

In time, the Complainant came to a belief that she had disassociated from her emotions and that this process of disassociation had been explained to her was because she must have been sexually assaulted. Whilst overseas, the Complainant experienced incidents of “flashbacks” and “out of body experiences” which, according to her former teacher (who was living in that overseas country), were real experiences of the recounting of having been sexually assaulted by her step-father.

Greg Walsh made an application for access to be granted to a large amount of material including over 1,000 pages of email communications and other materials between the Complainant and her former teachers and Counsellors.  His Honour Woods DCJ in part granted the application which also was supported by the Crown Prosecutor. The Complainant herself was represented by Counsel, who opposed the application for access to be granted to the material.

His Honour held that there was a legitimate forensic purpose in access being granted to the material because the material was of significant probative value as to the credibility and reliability of the Complainant.

The learned Crown Prosecutor, after being granted access to the material (along with Mr Walsh), then considered the material and conferred with the Complainant.  The material was consistent with the Complainant having Recovered Memories and a belief that various symptoms that she suffered from must have been due to having been sexually assaulted.

The Director of Public Prosecutions directed a no bill against the Accused.  He was then formally discharged of each of the charges against him on 29 October 2012.

 

 

JF v DPP (Unreported) NSWDC per Woods QC DCJ (7 December 2012)

In this matter Greg Walsh acted for JF who had been charged with a number of counts of sexual assault involving his step-daughter.

The Director of Public Prosecutions no billed each of the charges.  The circumstances that led to the decision of the Director involved an argument in respect of sexual assault communications privilege.  A large amount of documentation was provided to the Court and a number of email communications between the Complainant and various counsellors were released by His Honour to the parties.

An application was made for a Certificate under the Costs in Criminal Cases Act 1967.

The application was opposed.

The Crown took a jurisdictional point and contended that the Court did not have jurisdiction to grant a Certificate.  The Crown asserted that there had been no practical purpose for the arraignment of the Accused and that steps ought to have been taken at an earlier time for access to be sought to the subject material that was the subject of sexual communications privilege.

The Crown relied upon reported decisions of the District Court namely Kaldon Karout (unrep, 15/10/2004) NSW DC per Blackmore DCJ) and Leslie Evans (unrep, 21/04/2005 per Armitage DCJ).   In effect the Crown argued the trial had not commenced within the meaning of the Costs in Criminal Cases Act.

Section 2(2) Costs in Criminal Cases Act provides that a certificate may be granted under section 2(1)(a) following an acquittal or discharge of an Accused at any time during the Trial, whether the hearing on the merits has occurred or not.  Section 2(3) states that in this section “trial” includes preliminary proceeding that form part of the Trial (for example a voir dire) and since 24 March 2004, a special hearing conducted under s.19 of the Mental Health (Criminal Procedure) Act 1990.

The present s.2 commenced on 29 November 2002, as a result of the commencement of the amending legalisation, the Courts legislation Miscellaneous Amendment Act 2002.

Until January 2002, s.2 required that a hearing on the merits occurred before a costs certificate could be granted.  The current s.2 only requires that the Accused has been “acquitted or discharged in relation to the offence concerned” after the commencement of the Trial in the proceedings, or that the Director after commencement of a Trial has given a direction that no further proceedings be taken.

Greg Walsh argued that in accordance with s.130 Criminal Procedure Act 1986 the Court had jurisdiction with respect of the conduct of proceedings and indictment and as soon as the indictment is presented and the Accused person is arraigned and any orders that may be made by the Court for the purposes of the trial in the absence of a jury may be made before a jury is empanelled for the trial.

Section 130(3) provides that if proceedings are held for the purposes of making any such orders after an indictment is presented to commence at trial and before the jury is empanelled to proceed on the part of the trial of the Accused person.

In Evans His Honour Judge Armitage refused to issue a certificate even though the Accused had been arraigned before the “no bill” was granted.  In this context the Accused had been arraigned a few months earlier at a time when the Trial date was fixed.  The matter was no billed on the morning of the Trial.  His Honour held that s.130(3) of the Criminal Procedure Acthad no application in the circumstances as it refers to the indictment being “presented to commence the Trial” whereas an indictment in this case was presented to set a trial date.

Section 2(2) Costs in Criminal Cases Actwas enacted in specific terms “… at any time during a Trial whether a hearing on the merits has occurred or not”. Section 2(3) specifically provides that “Trial” includes preliminary proceedings that form part of a Trial such as a voir dire.

Thus it was submitted on behalf of the Accused/Applicant that it was somewhat serious that the Crown contended that there was no reason as to the arraignment of the Accused.  Section 130(2) Criminal Procedure Act expressly provided a fundamental statutory basis for the arraignment of the Accused.

Contrary to the Crown submissions, a subpoena had not been issued in the District Court for the production of the documents sought under sexual assault communications privilege.  The issue had been raised in the context of notices in accordance with the Act had been provided to the protected confiders and they had provided the documentation referred to in the draft subpoenas to the Court.  The Crown joined in an application that the material be provided to His Honour and argument as to the legitimate forensic purpose of such documentation then took place.

Thus in a practical sense the argument as to sexual assault communication privilege could have only arisen in this case at the time that it did upon the trial of the Accused.

Greg Walsh referred to a number of authorities in the course of argument including Alison v Director of Public Prosecutions (1991) 24 NSWLR 550; Regina v Hatfield [2001] NSW SC 334; R v MacFarlane (Unreported Supreme Court NSW 12 August 1994); R v Pavey (1997) 98 A Crim R 396; R v Manley [2000] NSW CCA 196; R v Dunn (unreported Supreme Court NSW 17 May 1990); Mordaump v Director Public Prosecutions [2007] NSW CA 121; JDB v DPP & Ors [2000] NSW SC 1092; JC v DPP [2009] NSW DC 424.

In JC v DPP [2009] NSW DC 424 Norish QC DCJ said at [44]-[45]:

“The prosecution in its submissions stated that: “(T)he complainant believes in a genuine sense that her account, or claim, of what she says occurred involving the accused”, but also acknowledges a number of inconsistencies in her accounts. The prosecution notes the tension between the complainant’s self belief and that there are “these (obvious) inconsistencies (identified by the accused through cross examination) and the complainant’s denial of them”. As has been observed by the Court of Criminal Appeal in (Johnston [2000] NSWCCA 197) the perceived need to see that “justice is done”, so to speak, is not necessarily a reasonable basis for instituting proceedings. In this matter, a “genuinely held belief” by the complainant that certain things occurred was not a reasonable basis for instituting proceedings, when an objective assessment of the complainant’s claims could lead to a conclusion that her claims are unreliable, unsustainable, untruthful or incredible. Here, in the context of the legal directions applicable, the prosecution was required to make an evaluation of the significance of ‘recent inventions’ or material additions to her initial lengthy statement years and/or months after that statement. In the context of an unsupported complainant and the absence of supporting evidence where it might be expected (JT) the ‘development’ of the complainant’s memory required very close consideration of whether it was reasonable to prosecute, even allowing for her explanations for her improved memory.

45 I acknowledge the difficulty the prosecution has in dealing with a person who may “genuinely” believe what they say or give that impression, claiming to be a victim of serious crime. However, the institution of proceedings cannot solely be left to the discretion of the complainant or founded an unquestioning acceptance of explanations for seemingly inexplicable weaknesses in her allegations. An independent prosecuting authority must be objective in its assessment to ensure that unworthy, or unsustainable, prosecutions are not brought. In my view this is a case, without regard to consideration of the accused’s good character (he was proposing to run a positive case on character) or any evidence in denial that was doomed to failure if a jury acted reasonably.”

His Honour Woods QC DCJ held that he did have jurisdiction in respect of the granting of a certificate and as to his discretion he was comfortably satisfied that it was appropriate for a certificate to be granted to the Applicant.  His Honour note that the Crown had conceded at the time of examining the subject material that it so impacted upon the credit and reliability of the Complainant that the proceedings were terminated.  Applying those facts as required by the legislation at the time the proceedings were instituted (time of the arrest of the Accused) it was appropriate that a certificate be issued.

R v Huon [2012] NSWSC 1092

Greg Walsh acted for Mr Huon (‘the offender’) who was charged with Murder. The offender was born in shanty town near Colombo, Sri Lanka and became the adopted son of a family in Sydney, NSW. He was 23 years of age at the date of the offence.

At about 7:30PM on Thursday 24 June 2010, the offender drove to the home of his grandmother (‘the deceased’) and consumed two cups of Scotch whisky and Coke. He obtained a knife from the kitchen and stabbed the deceased with it in the left cheek – the blade becoming embedded and the handle snapping off. At approximately 10:46PM, he entered the Mortdale Hotel and played poker machines and consumed drinks. He returned to the deceased’s home shortly thereafter. At about 1:00AM on Friday 25 June 2010, a sex worker attended the deceased’s home and an amount of $330 was charged to the deceased’s credit card for sexual services. At about 3:10AM, an amount of $308 was charged to the deceased’s credit card for further sexual services.

Click here to download a copy of the judgement of His Honour Justice Hall (Supreme Court of New South Wales)

R v John Edward Saffin (2012) NSWDC per Black QC DCJ

On 7 September 2012, Greg Walsh appeared for Mr Edward John Saffin in sentencing proceedings before his Honour Judge Black QC at District Court, Lismore.

Edward John Saffin had pleaded guilty to a charge of “Accessory After the Fact of Armed Robbery”. He had been remanded in custody for a period of approximately six and a half months and admitted to an intensive rehabilitation program for a period of seven and a half months. His Honour granted a remand pursuant to s.11 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) on condition that the offender undertake supervision by the Adult Probation and Parole Service and continue to undertake supervision by the Adult Probation and Parole Service, as well as continued psychiatric and drug and alcohol treatment.

The Offender faithfully complied with conditions imposed by His Honour, including regular attendances upon his treating psychiatrist, psychologist and counsellor. His Honour imposed a sentence of two (2) years wholly suspended on the condition that the Offender continue to attend upon his treatment.