In this matter Greg Walsh appeared for the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against a sentence imposed by Sorby DCJ. She pleaded guilty to a charge that between 28 December 2005 and 31 May 2006 she had dealt in money that was proceeds of crime and was as to the fact that the money was proceeds of crime and at the time of the dealing the value of the money was $100,000 or more. She was sentenced to imprisonment for three years expiring on 28 September 2009.
The applicant knew a number of people who were involved in the importation of amphetamine and the distribution of the proceeds of its sale. In the period between June and December 2005 the applicant had spoken to one Lisa Dunn who knew a number of these persons. On 8 June 2005 a United States Navy vessel arrived at Townsville and a member of the crew retrieved from it a quantity of amphetamine and handed it to another of the syndicate.
On 9 November 2005, one of the drug syndicate arrived on a shipment from overseas and the applicant travelled by car from Sydney to the Gold Coast to collect $100,000 in cash from another member of the syndicate. She drove back to Sydney and delivered the money to a cash dealer. On another occasion she travelled again by car to the Gold Coast and collected a further sum of $100,000 from a member of the syndicate and brought it back to Sydney by car. On a third occasion she transported an amount of $50,000 back to Sydney by plane.
On 24 October 2006 the applicant was arrested. She was initially interviewed by Federal Agents on that day and again on 21 November 2006. She admitted transporting cash on the three occasions. She explained that she did do as she believed that the money she was collecting was for the legal fees for a member of the syndicate. She was chronically depressed and was being treated and prepared to do any task that made her feel worthy. She did not question her friends who had asked her to transport the money.
In the sentencing proceedings, Dr Freed, a treating psychiatrist was called to give evidence. In his opinion the applicant had a significant degree of impairment of her psychiatric functioning and control. Dr Freed was an expert in the diagnosis and treatment of bipolar disorder and practiced at the St Vincent’s clinic. In particular the applicant had suffered a significant subjective history in that she had on a number of occasions been abused s a child and as a teenager. Her symptoms included significant psychotic features including disturbed thoughts of eating human kidneys and other delusional beliefs. The impact of the abuse upon her was also a significant feature of her bipolar disorder and psychotic symptoms.
Sorby DCJ did not accept that the mental condition from which the applicant was suffering had interfered with what she was doing when she carried away the money. In argument, two principle ground were advanced on behalf of the applicant, namely:
Ground one
Barr J observed at [24] that the two substantial arguments were put forward under this ground. The first was that his Honour did not consider whether and how the applicant’s mental condition affected her appreciation of the gravity of the offence, as it was put. Mr Walsh referred the Court to a number of cases which explained the various ways in which the mental illness of an offender may sound and the sentence to be imposed. See Leach v R [2008] NSWCCA 73, Basten JA [10]-[12]; R v Verdins [2007] VSCA 102 at [32] and R v Israil [2002] NSWCCH 255.
His Honour noted at [27] that Mr Walsh drew the Court’s attention to parts of the report of Dr freed which was before the sentencing judge. The first was bipolar disorder mixed with psychotic features. The applicant had manic like symptoms since at least 1999 and significant depressive symptomatology following her sister’s rape and assault in September 2005. She had the complication of mixed intertwining between depressed and manic phases as well as psychotic features, namely auditory hallucinations and paranoid ideation. She thought that flies settled on her because she was garbage. She thought that her family whispered about her. Dr Freed drew attention to the family history of mental illness, including bipolar disorder. Significantly Barr J at [28] noted the post traumatic disorder resulting from sexual molestation on a number of occasions and also the assault and rape of her sister by four men in 2005.
The Court concluded that the evidence shows that the effect on the applicant of the various illnesses from which she suffers will be significant as she serves her sentence and her sentence ought to be mitigated. Barr J with whom Basten JA agreed said the sentence imposed by His Honour is warranted: s6(3)Criminal Appeal Act 1912.
The applicant was granted leave to appeal and the sentence appealed from be quashed and there be substituted a head sentence of imprisonment of two years and six months with a non parole period of one year and six months.
In this matter Greg Walsh acted for the applicant who had been charged with the murder of his wife. He has initially been refused bail and an application for bail was made to the Supreme Court of New South Wales.
Rothman J heard the application and after extensive argument granted the applicant conditional bail. The issue before the Court was whether in terms of s9C of the 1978, the Court was satisfied that “exceptional circumstances” justify the grant of bail. Rotham J referred to the observations of Johnson J in R v Young (2006) NSWSC 1499.
The crown opposed bail and relied upon the decision of the Court of appeal in the Commonwealth DPP v Germakign (2006) NSWCA 275. His Honour also referred to R v Daron John Wright (unreported 7 June 2005) and R v DPR (unreported 1 August 2007). His Honour made specific reference to the evidence of Professor Yeo as to the needs of the applicant and the danger to his health from his imprisonment. His Honour accepted that the applicant’s medical and health needs are not being met and his health is seriously deteriorating.
His Honour made findings that the other provision of s32 of the Bail Act satisfied his Honour that the application, who has no prior criminal records, should be granted bail on very strict conditions.
Greg Walsh represented Omar Baladjam, an Accused standing trial in the Supreme Court of New South Wales of an offence of ‘conspiracy to do acts in preparation of a terrorist act or acts’ contrary to ss.11.5 and 101.6 of the Criminal Code Act 1995 (CTH).
The matter was heard by Justice Whealey, who dealt with a number of pre-trial and trial applications before the matter was heard by a jury in 2008.
In this matter Greg Walsh acted for Omar Baladjam.
Mr Baladjam and eight (8) other accused had been charged with a conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act (1995).
An application was made to a Melbourne trial judge, Bongiorno J seeking certain non publication suppression orders in relation to the reporting of certain material emanating or likely from a trial in Melbourne.
By coincidence the trial of 12 other men accused of terrorism commenced in Melbourne before a Judge and jury on 13 February 2008.
On 21 February 2008 Bongiorno J refused the substantive application to suppress details about the application.
Whealy J dismissed the application on behalf of the accused. His Honour considered whether a Quia timet injunction can be made in an anticipatory fashion to prevent a threatened contempt of court by media outlet or outlets.
His Honour accepted that there was authority for the court to grant such an injunction in circumstances where the publication of the material is prejudicial to pending proceedings. In United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720, His Honour observed that the exercise of such a power would be a rare one. Herald & Weekly Times Pty Limited v A [2005] 169 A Crim R 299; Pickering v Liverpool Daily Post (1991) 2 AC 370.
The fundamental principles of open justice were emphasised by His Honour. See John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 (2004) 61 NSWLR 344.
Regina (Cth) v Baladjam & Ors [No.1] [2008] NSWSC 721 (7 March 2008).
In this matter Greg Walsh acted for Omar Baladjam who was one of the Accused standing trial in the Supreme Court of an offence of conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act.
The trial was conducted by Justice Whealey. His Honour dealt with a number of pre trial and trial applications and these dealt with a variety of issues.
Judgments are referred to hereunder.
Regina (C’wealth) v Baladjam & Ors [No 3] [2008] NSW SC 725 (18 March 2008)
Nine (9) men charged with conspiracy to do acts in preparation for, or planning, to commit a terrorist act or acts contrary to section 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995 applied to have the venue of their Trial changed.
They had been in custody since November 2005. They were arraigned before the Supreme Court on 31 May 2007 and the Trial was listed on 25 February 2008.
At the time the Trial was set down for Hearing, it was anticipated that the venue would probably be the Darlinghurst Court complex used by the Supreme Court of New South Wales for criminal trials.
The Trial commenced on 25 February 2008 at the New Sydney West Trial Court situated in the legal precinct of Parramatta.
The Application for change of venue was made pursuant to section 30 Criminal Procedure Act 1986.
Whealy J observed that it was hoped from the outset that Darlinghurst might be a realistic location for the Trial. The Defence argued that a Trial at Parramatta would prove a most inconvenient and difficult one for lawyers involved because of the distance between Parramatta and Sydney CBD. There were other arguments about the proposed Court room and Court complex itself.
His Honour found that he was not satisfied there was any risk that a fair or unprejudiced Trial could not be held in relation to the present venue. His Honour thus declined to change the venue of the Trial.
Regina (C’wealth) v Baladjam & Ors [No 4] [2008] NSW SC 726 (18 March 2008)
A number of applications were made on behalf of Omar Baladjam and others accused facing charges contrary to the Commonwealth Criminal Code.
An application was made for the quashing of the Indictment on the basis that it was bad for duplicity. It was argued that the offence pleaded in the Indictment was one unknown to the Law and accordingly it should be quashed.
The Indictment
The Indictment charged each Accused, that between July 2004 and November 2005 he conspired with other Accused to do acts in preparation for a terrorist act (or acts).
There were a number of particulars of the terrorist act (or acts) which involved an action or threat of action involving the detonation of an explosive device (or devices) or the use of weaponry or both that was or were to be done:
(a) With the intention of advancing a political, religious or ideological cause; and
(b) With the intention of:
i. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country; or
ii. intimidating the public or a section of public
(c) in circumstances where the action, if carried out, would:
i. cause serious harm that is physical harm to a person; and/or
ii. cause serious damage to property; and/or
(d) in circumstances where the action, if carried out, would not be advocacy, protest, dissent or industrial action or a kind not intended to:
i. cause serious harm that is physical harm to a person; or
ii. cause a person’s death; or
The Law
Whealy J referred in detail to various provisions of the Commonwealth Criminal Code including section 101.6(1) of an offence to do an act in preparation or planning a terrorist act; section 101.6(2) commission of the offence being committed even if the terrorist act has not occurred or the act in preparation or planning has not been in respect of specific terrorist act or been in preparation or planning for more than one terrorist act.
The offence of conspiracy is set out in section 11.5 of the Code and His Honour referred to section 11.5(2) of the Code which provides three requirements before a person can be guilty of conspiracy under section 11.5 of the Code:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
The Crown Case
That His Honour dealt with in some considerable detail the Crown case including the Accused amongst other things:
(a) obtained or attempted to obtain chemicals and other relevant materials which could be used in the construction of an explosive device;
(b) obtained or attempted to obtain weaponry and ammunition;
(c) possessed large amounts of extremist and instructional material.
Legal Principles
Reliance was placed upon the principle that Courts have criticised the tactics of charge of conspiracy where a substantive offence is available. Hoar [1981] HCA 67; (1981) 148 CLR 32.
The Crown responded that a number of matters in the Crown case statement were not to be admitted against some Accused and relied upon Ahearn v Regina (1988) 164 CLR 87; Regina v Tripodi [1961] HCA 22; (1961) 104 CLR 1; Masters v R (1992) 26 NSWLR 450.
Whealy J was of the opinion that the Hoar principles should be confined to propositions that were earlier stated by His Honour. There were those cases in which it was clearly inappropriate to leave a conspiracy charge in an Indictment where there is a sufficient and effective charge available to the Crown. In this case, the conspiracy charge was an appropriate charge and His Honour refused to quash the Indictment. See Ruich v Western Australia [2006] WASCA 241 at [81] – [82]; R v El-kotob [2002] 4 VR 456 per Vincent JA at [42]; R v Chung [2007] NSWCCA 231 at [51].
Duplicity
A further argument was advanced that the Indictment was bad for duplicity. See Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77; R v Giam (1999) 104 A Crim R 46.
It was argued that the Indictment was bad for duplicity because it charged an agreement to do acts in preparation for “a terrorist act or acts”. It was argued that at simplest the charge contains of possibly two conspiracies:
(a) an agreement to do an act or acts in preparation for a single terrorist act;
(b) an agreement to do an act or acts in preparation for more than one terrorist act.
Resolution of the Issues
Whealy J after carefully considering a large number of authorities, including Gerakiteys v The Queen (1984) 153 CLR 317; R v Ongley (1940) Volume 57 NSW (WN) held that the Indictment was not bad for duplicity. His Honour’s reasoning was based on three matters. First the consistency of the language used in the history of the legislation since 1960; secondly the common and accepted practice to include in an Indictment one count for a conspiracy alleging the doing of multiple unlawful acts; thirdly the decision of the New South Wales Court of Criminal Appeal Ansari v R [2007] NSWCCA 204.
In this matter Greg Walsh acted for the plaintiff who was the accused person in committal proceedings before the second defendant, Forbes LCM at the Hornsby Local Court. The proceedings relate to a charge of aggravated indecent assault contrary to s61M(1) of the Crimes Act, 1900 and a charge of aggravated act of indecency contrary to s61O(1)(A) of the Crimes Act, 1900. The Magistrate declined to direct that the complainant be cross-examined pursuant to s93 of the Criminal Procedure Act, 1986. The complainant at the time of the alleged offences was residing in a home care group home and is intellectually disabled.
On Monday 10 October 2005, the home was short staffed and an agency was contacted and sent a carer for the nightshift. This was the plaintiff. At 7.00am the following morning the regular carers arrived and whilst assisting the complainant to shower a conversation allegedly took place between the carer and the complainant. In that conversation the complainant made reference to “oh, sore bum.” He also allegedly said, “Man played with wee wee”.
The carer spoke to her colleague and then contacted the Rape Crisis Centre at Royal North Shore Hospital and conveyed the complainant to that hospital for medical examination. The complainant on Wednesday 12 October 2005 was interviewed by a Senior Constable in the presence of his mother. A number of the questions in that interview involved the complainant’s mother leading the complainant in respect of critical issues.
A buccal sample was obtained from the complainant and subsequently from the plaintiff. A biologist reported that the plaintiff had the same DNA profile as the DNA recovered from the seminal stained area of the pyjama pants. The complainant was again interviewed on 17 October 2006. This interview again took place in the presence of his mother. Once again, the complainant’s mother took a very active role in the course of the interview. The prosecution then withdrew two charges against the plaintiff.
Greg Walsh made an application pursuant to the provisions of the Criminal Procedure Act for the attendances of certain witnesses including the complainant. After a contested hearing, Forbes LCM declined the application in respect of the complainant.
An appeal was made to the Supreme Court and this was heard by McClellan CJ at CL. His Honour dismissed the plaintiff’s summons and made a finding that her Honour’s approach to the question as to whether the complainant ought to be directed to attend for cross-examination was “devoid of any error”.
His Honour dealt at length with the fundamental issue of an appeal pursuant to s53(3)(a) Crimes (Appeal & Review) Act, 2001. His Honour at [37] noted that such an appeal is only available with leave and is confined to a question of law alone. In terms of prerogative relief whilst accepting that it was available in relation to committal proceedings, it was a relief that could only be granted in particular circumstances. See Nanevski v Haskett[2006] NSWSC 1114.
His Honour [39] found that even if he, or another judicial officer, formed a different opinion to the learned Magistrate in respect of the application, on the same facts, this would not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law, McKirdy v McCosker [2002] NSWSC 197 per Howie J.
In this matter Greg Walsh appeared for the defendant in a summons brought by the Commonwealth Director of Public Prosecutions contending that an order made by Mr Flack, Magistrate, on 9 October 2003 at the Liverpool Local Court discharging the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth) be set aside.
The background to the matter was that Mr Flack ordered that the defendant be discharged pursuant to s19B(1)(d) of the Crimes Act 1914 and to be of good behaviour for a period of eighteen months.
It was contended by the Commonwealth Director of Public Prosecutions that the sentence imposed by the learned Magistrate was not available at law because the defendant had been convicted in the Local Court in her absence on 31 March 2000. That conviction had not been annulled due to the fact that the defendant was not aware that the conviction had been recorded until a warrant for her arrest was issued some three years after the recording of the ex-parte conviction on 31 March 2000.
Hall J concluded that the conviction made and recorded by the Bankstown Local Court on 31 March 2000 constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, his Honour found that the determination did not contitute a conviction in the sense of a final disposition of the proceedings. See Maxwell v The Queen (1995-96) 184 CLR 501; Griffiths v The Queen (1977) 137 CLR 293; Kinney v Green (1992) 29 NSWLR 137; Kopuz v District Court of NSW(1992) 28 NSWLR 232; Mulcahy v Clark (1991) Tas. R. 115; Cobiac v Liddy (1969) 119 CLR 257; Della Patrona v DPP (Cth) (No 2) (1993) 38 NSWLR 257; Application by the Attorney General under s37 of the Crime (Sentencing) Procedure Act for a Guideline judgment concerning the offence of High Range prescribed Concentration of alcohol under s.9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (no 3 of 2002) [2004] 51 NSWLR 305.
Accordingly his Honour found that there was no conviction within the meaning of that term and that s19B of the Crimes Act 1914 (Cth). It was therefore open to Mr Flack on 9 October 2003 at the Liverpool Local Court to exercise the power to discharge the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth).
In this matter Greg Walsh acted for Brian Dean Alcorn, a solicitor who had formerly been in the employ of Marsdens Solicitors. On 6 September 2005, Mr. Alcorn was sentenced by his Honour Judge Black for six offences to which he pleaded guilty. Two of the offences were under s300(2) of the Crimes Act of knowingly use a false instrument and four offences under s249(1)(b) of the Crimes Act of corruptly receiving a benefit as an agent.
The offences under s300(2) of the Crimes Act involved Mr Alcorn using a false instrument, being a statutory declaration, purportedly signed by certain persons knowing it to be flashed with intent to induce an officer of the Office of State Revenue to accept the instrument as genuine and thereby obtain monies.
Each of the offences under s249B(1)(b) of the Crimes Act occurred in circumstances whereby Mr Alcorn, as the agent of Marsdens Law Group, of which he was a partner, had corruptly received from a man named Stumer, a signed but otherwise blank cheque on the understanding that the applicant could complete the cheque in his favour for a certain sum. There was tendered before the sentencing Judge, an agreed statement of facts, which to a large extent related to a fraudulent scheme of which Mr Alcorn was not a party. The sentencing Judge in effect made findings that Mr Alcorn was that of a principal in the fraudulent scheme.
It was argued in the Court of Criminal Appeal that the learned sentencing Judge had fallen into error in categorising the appellant’s objective criminality as a principal in the fraud involving the co-offenders. The Court unanimously agreed that the sentencing judge did err in the way in which he assessed the objective criminality of the applicant.
At paragraph [57] James J found that the learned sentencing judge’s comments about the objective criminality of the applicant were not supported and were otherwise inconsistent with the agreed facts. Significantly, the applicant only became aware on 7 April 2002 as to the receipt of the secret commissions. The presentation of false declarations to the Office of State Revenue could not have been “part and parcel of lending of a false colour to transactions to enable money to be extradited from investors.” Those statutory declarations were presented to the Office of State Revenue on 17 June 2002, after the applicant had come to a realisation that he had been duped.
James J further considered the approach of the learned sentencing judge to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. At paragraph [60] his Honour found that the learned sentencing Judge had seriously contravened the sentencing principles stated by the High Court in Pearce. The Court referred to the judgment of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67-68.
An impermissible approach to sentences for multiple offences was “to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges.” Such a sentence cannot be an appropriate sentence for any of the individual offences. This was precisely the approach adopted by the sentencing Judge. Further section 44 of the Crimes (Sentencing Procedure) Act had no particular relevance to the sentencing for multiple offences.
The Court made orders granting leave to appeal against sentences and allowed the appeal against sentence. The sentences of Judge Black of 6 September 2005 were quashed and the applicant was re-sentenced in respect of the various offences. The longest of those sentences was that of imprisonment expiring on 6 September 2006.
In this matter Greg Walsh acted for Henk Eijkman in respect of an appeal from a decision of Sorby DCJ in granting leave for the respondent to commence proceedings out of time, inter alia, against Eijkman, McGloin and Trustees of the Roman Catholic Church of the Diocese of Parramatta.
The New South Wales Court of Criminal Appeal (Giles JA, Hodgson JA and Hunt AJA) upheld the appeal and set aside the orders made by Sorby DCJ. Giles JA observed at [81]:
“In some cases telling a person that he a psychiatric injury will make him aware of an additional extent of his injury, or put more accurately, diagnosis of a psychiatric injury will reveal an extent of injury of which the person was not previously aware. Thus, in Cranbrook School v Stanley [2002] NSWCA 290 Heydon JA distinguished at [68] between perceived emotional disturbance as symptoms of an illness or only “signs of some “personal weakness or illness falling short of an illness”, and referred to awareness of “signs and symptoms in his condition, but not that they reveal any personal injury”.
Giles JA at [82] found that the respondent as long ago as 1994 must have known that his emotional disturbance amounted to a psychiatric condition. Significantly, the respondent was disbelieved in respect of his assertions of not having been treated by a certain medical practitioner and at a hospital. Giles JA further found at [120] that the respondent knew in 1994 that he could sue the appellants in order to obtain compensation for the consequences of the sexual abuse he alleged he had suffered. His Honour went on to find that the respondent’s explanation of not seeing them was not a particularly strong one.
The Court unanimously found that it would not be just and reasonable to grant an extension of the limitation periods to the respondent.
In this matter Greg Walsh acted for a Mrs West who had been discharged pursuant to s19B(1)(d) of the Crimes Act, 1914. This provision provided that in effect she was discharged without receiving a conviction.
The police informant made an application to the Supreme Court seeking to set aside the decision of the Magistrate. It was argued that the Magistrate did not have the power, as a matter of law, to discharge Mrs West pursuant to the provisions of the Crimes Act, 1914 (Cth).
The Supreme Court in dealing with the application made a number of observations as to whether the Magistrate did have the power to deal with the matters as he did in the Local Court. It was argued on behalf of Mrs West, that the initial recording of a conviction was done ex parte and clearly she did not even known that she had been charged, let alone convicted. It was argued that ‘conviction’ amounted to no more than a mere recording of guilt. Such that the Magistrate was not precluded in dealing with the matter in the manner which he did. (See Kinney v Green [1992] 29 NSWLR 137).
Mr Fajka had pleaded guilty to an indictment which contained a single count alleging that he had committed the offence of affray in licensed premises at Bradbury. The offence to which he pleaded guilty was contrary to s93 of the Crimes Act and carried a maximum penalty of 5 years. The sentencing judge, Maguire DCJ, imposed a sentence of imprisonment of 2 years with a non-parole period of 18 months.
Greg Walsh did not appear on the sentence but successfully applied for bail on behalf of the applicant pending his appeal to the Court of Criminal Appeal. In the course of the sentencing of the applicant, the sentencing Judge made a finding that he was involved in acts, to wit the stealing of a video tape, which seriously aggravated the facts in respect of which he had entered his plea of guilty. It was argued by Greg Walsh that it was impermissible for the Judge to have made such a finding and such finding was in breach of the principle in De Simino v The Queen [1981] 147 CLR 303.
The New South Wales Court of Criminal Appeal (Hulme J, Simpson J and Howie J) found that it was impermissible for the sentencing Judge to have made such a finding and the application for leave to appeal was granted and the appeal allowed.
The sentence imposed by Judge Maguire was quashed and in lieu, the applicant was ordered to perform 100 hours of community service.
In this matter Greg Walsh represented the accused in a trial of armed robbery charges. The Crown relied upon DNA evidence in which the accused’s DNA was allegedly found on a balaclava that he was alleged to have been wearing at the time of the commission of the offence. A DNA expert, namely Dr McDonald was obtained on behalf of the accused and it became apparent that the proper procedures/protocols in respect of the taping and recording of DNA samples had not been carried out. Further, the initial testing by the expert’s retained by the Crown was negative to DNA on the part of the accused but subsequent testing demonstrated a test result that was most unusual and the methodology adopted shown to be highly unreliable. The accused was acquitted by way of a directed verdict of not guilty by the trial judge.
Greg Walsh appeared as Counsel on behalf of Mr MacDonald, having represented him on a pro bono basis in respect of fraud charges.