Howard v Surf Life Saving Australia NSW [2019] NSWSC 1212 (13 September 2019)

In this matter, Greg Walsh acted for the Plaintiff, Graham Howard, a long serving member of the North Palm Beach Surf Life Saving Club.

Mr Howard had been subject to allegations of misconduct which was the subject of an investigation and disciplinary hearing.

He was suspended for two years.

Justice Pembroke, of the Supreme Court, heard the case and determined that there was a wholesale failure of the Judiciary Committee to comply with its own regulations. The Committee had also failed to provide Mr Howard with basic information which he was entitled to on grounds of procedural fairness. The unfairness of Surf Life Saving NSW was revealed in the course of the hearing by the Judicia Committee as observed by His Honour at paragraph [19] of the judgement.

The decision of the Judiciary Committee was set aside and the Defendant was ordered to pay costs. 

Read More

R v Crawford (Unreported) Flannery DCJ 1 November 2018

R v Crawford (unrep) Flannery DCJ 1 November 2018 – permanent stay of indictment In R v Hakim [1981] 41 A Crim R 372 Lee J said “it would be out of accord with common humanity” to allow the trial to proceed.

In this case, Greg Walsh appeared for Vincent Crawford, who is 86 years of age. He had severe dementia and was in a “vegetative state, barley rousable, he has no capacity to communicate or alternatively, if he does, to communicate in a rational sense.”

He was completely dependent on nursing care for mobility and is verbally and physically disruptive, aggressive and prone to violent outbursts.

The Prosecution proposed that notwithstanding Mr Crawford’s condition as expressed by Dr Roberts, Forensic Psychiatrist, that he could be brought to Court and the special trial could proceed. This was not withstanding the evidence of the Director of the Nursing Home that he would require a fully body lifting machine and three staff and he would be very confused in the Court environment and prone to aggressive and disruptive outbursts.

The alleged offences were committed between 30-35 years ago. The Complainant first complained to Police on 29 December 2014 and though a statement was taken from him, no further active investigation was undertaken until Detective Tyrell spoke to him on 6 October 2015.

The Accused was arrested and charged on 22 April 2016 despite the fact he had severe dementia and could not answer any charges or defend himself in any way.

If the Accused had been spoken to shortly after 29 December 2014, he would have some capacity to answer the charges and defend himself. However, on 18 September 2015, he suffered a major stroke which led him to develop severe dementia. A critical witness was not interviewed.

Detective Tyrell was cross-examined by Greg Walsh and in cross-examination, agreed that though an important witness, Sister Elizabeth was alive, she was not spoken to. The reason for this was that the Complainant had indicated to the Detective that he didn’t want any statement taken from her. The Detective made no enquiries as to the whereabouts of Sister Elizabeth either via the RTA System or a search of the Police System.

The Applicant for a Permanent Stay of the hearing was heard by Her Honour Judge Flannery of the District Court. Greg Walsh did not simply rely upon the 30-35 years delay, but a number of overlapping features including the prejudice which also occurred in the context of the Accused’s medical condition. See McDonald v R [2016] VSCA 304.

Flannery DCJ referred to the decisions of Jago v District Court [1989] 87 ALR 577, Subramaniam v R [2004] 211 ALR 1, R v Zvonaric [2001] NSWCCA 505.

Greg Walsh argued that Zvonaric required an accused to be present for his arraignment and that it was not adequate that this could be done by the Evidence (Audio and Audio Visual Links) Act as contended by the Crown.

In Zvonaric, Justice Adams, with whom Spigelman CJ and Sully J agreed, emphasised that a special hearing required strict compliance with procedure, including that the Accused be present for his arraignment.

Flannery DCJ referred to s.21 of the Mental Health (Forensic Provisions) Act which provides “except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.”  Her Honour held that she was satisfied that the Accused should be present, not just for the arraignment, but the whole of the special hearing unless he has waived his right to be present.

A feature that Her Honour also considered was that of prejudice being one of much significance because of the major stroke suffered by the Accused in combination with the failure of investigating Police to properly investigate the allegations against the Accused. The outcome of the special hearing was also a matter to be considered. Her Honour also referred to the observations of Adams J in Littler [2001] NSWCCA 173.

The special hearing was permanently stayed.

AB v Judaical Commission of NSW (Conduct Division) 2018 NSWCA 264

AB v Judaical Commission of NSW (Conduct Division) 2018 NSWCA 264 AB, a Local Court Magistrate, was the subject of complaint to the Judicial Commission of NSW and in turn referred to the Conduct Division. Pursuant to s.24(l) of the Judicial Officers Act the Conduct Division “May hold hearings in connection with the complaint”. On 8 June 2018 the Conduct Division directed that a hearing be held and affixed the dates for the hearing. Pursuant to s.24(2) the Conduct Division may determine that a hearing “be held in public or in private”.  On 8 October 2018 the Conduct Division determined that the hearing should be held in public. AB appealed to the NSW Court of Appeal from the decision of the Conduct Division. The Court, comprised of Basten JA; Meagher JA and Gleeson JA, dismissed the summons seeking judicial review of the decision of the Conduct Division to hold a hearing in public. 1 Eleven grounds of review were relied upon by AB. It was argued that the Conduct Division “plainly fell into error by wrongly construing s. 24(2)” and in so doing “failed to consider the purpose of the text of s.24(2) in its proper context within the operation of the Judicial Officers Act”. The Court held that grounds 1 and 5 were without substance and that the Conduct Division dealt with the power to determine whether a hearing be held in public or private properly. Grounds 2 and 3 were also rejected and the Court found that the Conduct Division did not conclude that it had made a constraining order at some point which had no power to undo the order: it was patently more concerned about the effect of failing to make such an order, which was the course that took over the objection in the applicant.2 Ground 4 alleged that the Conduct Division “incorrectly applied the principles of ‘open justice’ to an administrative rather than judicial context”. The Court observed that an incorrect application of a legal principle does not necessarily involve jurisdictional error. Further, that giving ‘too much weight’ to a permissible consideration does not usually indicate jurisdictional error. Their Honours referred to the observations of Spigelman CJ in Bruce v Cole3  that the role of the Conduct Division was to provide a procedural strength, reinforced in the principle of judicial independence, in the system for maintaining the integrity of the judiciary pursuant to which “from the passage of the act of settlement (1700) Eng” it has been accepted that judicial officers cannot be removed except by exceptional measures involving action by both the executive and the legislature.4 The Court also rejected Ground 6 of ‘public interest’. The Court at [54] observed “the term ‘Public interest’ has no precise meaning. It is protean and will take its possible meanings from the context in which it is used. In fact each of the six criteria set out in the Guideline involves an element of the ‘public interest’”. Grounds 7, 8, 9, 10 and 11 were also rejected. 1 See AB v Judicial Commission of NSW (Conduct Division) [2018] NSWCA 264.        2 Para [35] 3 (1998) 45 NSWLR 163 At [166]-[177] 4 Bruce v Cole (1998) 45 NSWLR 163 At [166f]

Regina v XY

XY is a married woman who tragically had been diagnosed and treated for schizophrenia for many years. She is married to a loving and caring husband. The have one child who is an adult and a successful professional person. XY was originally diagnosed with schizophrenia in the early 1990’s. She was admitted to a hospital for a lengthy period of time and treated after her discharge with anti-psychotic medication. She continued taking medication from the early 1990’s until about 2015.

As she had been complying with her medication for so many years she decided most regrettably to cease taking her medication. She thought that she could function well without her medication. In the latter part of 2016 and in 2017 her condition commenced to deteriorate. She became disorientated and had irrational beliefs that people were trying to hurt her. She became obsessed with paranoid beliefs of being poisoned. Whatever she viewed on television to her was reality.

XY’s Husband and their Daughter were concerned about her behaviour and encouraged her to go and see her General Practitioner. Her local Doctor had been treating her for many years and recently retired and the Husband and Daughter thought that XY had returned to see her General Practitioner to be prescribed appropriate medication.

On the day of the incident XY had a delusional belief that her husband had been in some way sexually abusing their daughter. This was a delusional belief as no such history had occurred. XY in a psychotic episode accused her Husband of sexually abusing their Daughter and attacked him with a knife attempting to sever his penis. As a result he was seriously injured.

Neighbours intervened and Police were called and XY was arrested and taken to a psychiatric hospital where she remained for some months.

Greg Walsh was asked to help XY and he did so. She apart from her psychiatric illness had been an extremely devoted Wife and Mother and had worked very hard over many years to help her Husband but over recent times was suffering from a serious illness. She otherwise had a very loving and caring relationship with her Husband. There were concerns about bail and in particular Police insisted that XY had no contact with her Husband. This was problematic because they had otherwise, such a close and loving relationship. However, the incident concerned was an extremely serious one and she had been charged with very serious offences, including wounding with intent.

The psychiatric hospital concerned provided wonderful treatment and support to XY and there was established a community treatment program. Appropriate accommodation was organised for XY and a community nurse initially saw her on a frequent basis and she attended also readily upon her treating psychiatrist and a psychologist and general practitioner. She maintained strict compliance with her medication and accepted that she should never have stopped taking her medication and that this was the triggering problem for her predicament.

An application to vary her bail was heard at the Downing Centre Local Court before Magistrate Atkinson. Police opposed any contact between XY and her Husband. The Husband had attended Court and whilst in Court they instinctively embraced and could not be separated. The bail conditions were varied so as to permit XY to have supervised contact with her Husband and the supervisor was her Daughter.

The Defence of mental illness was raised and the matter went to Trial. Greg Walsh appeared for XY at Trial and she was examined by a Forensic Psychiatrist on behalf of the Prosecution and also Dr Olav Nielssen, who gave evidence for her. The diagnosis of schizophrenia was agreed upon and that the schizophrenia was the cause of her conduct in attacking her Husband. XY was found not guilty on the grounds of mental illness by Acting Judge Graham of the District Court and a number of orders were made requiring her to accept appropriate treatment and to comply with supervision in the community.

XY has continued to strictly adhere to her treatment regime and is now living back with her Husband whom she is providing support to.

AB v Law Society of NSW [2018] NSWSC1975 Davies J

In this matter Greg Walsh acted for AB in a very important case against the Law Society of NSW.

AB at the time of instructing Mr Walsh was a Solicitor with Firm 1. Her supervising partner was CD. That supervising partner on 3 March 2016 requested that she pop in and see her and when AB did so a piece of paper was handed to AB consisting firstly of CD’s signature and that of EF, CD’s former partner and the father of a child XY. AB witnessed CD’s signature as a person over the age of 18 years and not related to CD. She neither witnessed it as a Solicitor or in her capacity as a Solicitor. CD then asked her can you witness EF’s signature as well. She did so. AB said to CD “Has EF been in to sign this?” CD said “Yes I met him this morning”. AB had no reason not to believe what her supervising partner told her and signed the documents.

The next day AB overheard a phone call made by CD with a person likely to have been EF. As a result of the matters that she heard in the call CD said to AB that he had received a call from the Passport Office about the Passport Application. AB became suspicious at that point that EF may not have signed the application because CD had said to EF on the phone that she was taking XY to New York.

Davies J set out in his judgement at paras [9-14] further evidence in respect of the circumstances of the execution of the Passport Application and the results of investigation conducted as to what had occurred in such circumstances.

On 1 September 2016 AB contacted the Law Society and was referred to the Senior Solicitors Scheme and thus represented by Greg Walsh. Mr Walsh obtained instructions from AB and on 17 November 2016 sent a letter to the Law Society making full disclosure of the matters on behalf of AB.

Davies J thereafter sets out in some detail the extensive exchange of correspondence between Greg Walsh and the Law Society. Greg Walsh asserted that the Law Society had not afforded procedural fairness to his client and had not disclosed documentation consisting of two statutory declarations of CD to the Law Society. Mr Walsh on behalf of AB asserted that the full statutory declaration provided to the Law Society by CD be provided to him on behalf of AB. Justice Davies refers to Mr Walsh’s assertions in his judgement at paras [21-23]. On 6 July 2018 Ms Foord on behalf of the Law Society replied to Mr Walsh stating “You have been provided with everything that is relevant to the Society ‘s investigation of the complaint about AB. Those parts of CD ‘s statutory declaration that do not relate to your client or to the complaint about her will not be provided to you”.

At para [24] Justice Davies made this finding “In fact, the Law Society’s statement in that letter was untrue. Not only did the Law Society have the statutory declaration of CD from which it had quoted, but it had another statutory declaration, made at an earlier time, with answers to questions which had been asked of CD by the Law Society. That only became clear when Mr Walsh saw the report from the Bar Association mentioned earlier. That statutory declaration was not made available until a subpoena and a notice to produce was issued to the Law Society shortly before the present hearing. The other statutory declaration has never been made available to the plaintiff”.

Justice Davies set out in his judgement at [25-26] the result of the investigation made by The NSW Bar Association to grant AB a Practising Certificate as a Barrister. Mr Walsh on her behalf had made full disclosure about the complaint to the Law Society. The Bar Association had been abled by way of notice issued to the Law Society to obtain the relevant statutory declaration.

At [27] His Honour notes that on 12 September 2017 Mr Walsh wrote to the Law Society indicating that he had now learnt that there were in fact two Statutory Declarations. The First Statutory Declaration of CD contained significant admissions which are directly relevant to the allegations of Professional Misconduct against AB. At [28] the Law Society did not reply. Greg Walsh wrote again on 16 October 2017. In that letter he asserted “…[l]t is submitted that the decision to conceal from AB and myself as her solicitor the contents of the First Statutory Declaration of CD provided to the Law Society on 21 April 2017 is utterly contrary to the obligations of procedural fairness/natural justice. …”.

Ms Foord on behalf of the Law Society responded in a letter of 24 October 2017 again asserting that everything relevant had been provided to Mr Walsh on behalf of AB.

At [30] Justice Davies made this finding “It was again not true that all relevant material had been provided to AB. The Law Society had still not made available the statutory declaration from CD in its possession. The letter of 20 June 2017 which first disclosed the existence of a statutory declaration by CD did not mention the date of that statutory declaration. It could not, therefore, be inferred from the references in the letter of 24 October 2017 that what was being spoken of was a second statutory declaration by CD”.

On 1 February 2018 the Law Society resolved to refer that AB to the Administrative Tribunal

Occupational Division on the basis that she had falsely witnessed the signature of EF on a

Passport Application of about 3 March 2016. It provided reasons for its decision which were then set out by His Honour at [40].

Throughout the ordeal suffered by AB, Mr Walsh had obtained reports from her treating psychiatrist Dr David Sturrock. These set out the tragic circumstances in which she suffered from a major depressive illness: shock, depressed mood, nightmares, insomnia, anxiety, panic attacks, tearfulness, nausea, dry mouth and poor concentration and suicidal ideation. The response by the Law Society to such overwhelming evidence was simply to assert that it in no way was responsible having regard to its conduct in delaying the investigation and concealing evidence that was clearly relevant to the allegations made against AB. Tragically, AB attempted to take her own life on three separate occasions.

Justice Davies ultimately held for the reasons set out in his judgement that the Law Society had failed to accord procedural fairness to her and further had failed to provide adequate reasons in both the decisions of 14 December 2017 and I February 2018 meaning the decisions could not stand. His Honour further found that the reasons for the decision of I February 2018 disclosed jurisdictional error.

The Law Society then despite His Honour reserving his decision resolved to commence proceedings in the tribunal and did so on 1 August 2018. His Honour made an order in the nature of certiorari quashing the decisions of the Law Society made on 14 December 2017 and 1 February 2018.

This judgement of Justice Davies is a fundamental one in respect of the proper manner in which the Law Society of NSW ought to have investigated the allegations of Professional Misconduct against AB. She, somewhat remarkably, is still alive to continue assisting the community as a member of the NSW Bar Association.

R v SDD [2018] OCA 280

In this matter Greg Walsh appeared as Counsel for SDD (Appellant) in the Supreme Court at Queensland, Court of Appeal.

The Court was constituted by Sofronoff P and Gotterson JA and Boddice J.

The Appellant’s appeal arose from his conviction by a jury on counts 5 and 6 relating to viewing the Complainant naked in the shower. He had been acquitted of 11 other counts upon his trial at the District Court at Maryborough, such verdict being determined on 9 February 2018.

Greg Walsh represented the Appellant at trial and also in the appeal to the Supreme Court at Queensland, Court of Appeal. The basis of the appeal against conviction on these counts was that the verdicts were, in all the circumstances, unreasonable and or inconsistent.

Greg Walsh submitted that the verdicts to the jury on counts 5 and 6 are unreasonable on the ground that the Complainant obtain treatment from a psychologist for a significant period of time in respect of sensitive issues but raised no complaint with the psychologist at that time. It was in the context of the end of the marital relationship between the Appellant and the Complainant’s mother which also involved an incident of physical violence involving the Complainant’s brother. It was argued that steps taken by the Appellant and his wife to limit access to the Complainant’s iPhone and internet did not amount to a sexual interest by the Appellant and the Complainant. The Appellant was genuinely concerned for the Complainant’s welfare and he otherwise had a good relationship with her. Further, that in the context of the household, there were practical jokes played on each other by members of the family.

An important issue was that there was an internal lock on the bathroom door and such evidence was given by the Appellant and two other witnesses, as well as the photographs.

It was argued on behalf of the Appellant that the verdicts of not guilty in respect of all the other counts involved a rejection of the Complainant’s credit. As such, the verdicts on counts 5 and 6 were inconsistent with the verdicts of not guilty on the remaining counts.

Boddice J with whom Sofronoff P and Gotterson JA agreed, rejected the contention on behalf of the Appellant that there was an unreasonable verdict of an inconsistent verdict. The Complainant’s account as to the two bathroom incidents, the subject of verdicts of guilty, were supported by the mother’s evidence. His Honour placed particular evidence on there being no context as to counts 5 and 6 as to the playing of a joke by the Appellant on the Complainant.

In respect of inconsistent verdicts, his Honour referred to Holmes J (as the Chief Justice then was ) in R v Smillie [2002] QCA 341 at [28]; (2002) 134 A Crim R 100.

The Court granted leave to adduce the further evidence and the appeal to be dismissed.

R v SDD — District Court Maryborough

Greg Walsh represented SDD in respect of 13 counts of indecent dealing and 5 counts of observations of recordings in breach of privacy. The trial commenced at the District Court at Maryborough on Monday 5 February 2018 and concluded Friday 9 February 2018.

The Accused had pleaded not guilty to counts 1 to 13.

The Complainant had given a statement to Police on 12 March 2016 and was admitted into evidence under section 93A of the Evidence Act. The Complainant gave further evidence and was cross-examined in a pre-recorded hearing in June 2017. It was admitted under section 21 AK of the Evidence Act.

The Complainant was 14 years of age at the time of the alleged offending. The Accused was her step-father. The Accused and the Complainant and her mother and other children resided at Archer Drive, Hervey Bay. There were a number of counts in which the Accused walked into the bathroom, whilst the Complainant was having a shower and threw a cup of cold water over the top of the shower cubicle. The Accused laughed and walked out and the Complainant’s mother yelled out “she is a teenager you shouldn’t be doing that.” There was evidence that the Complainant performed practical jokes upon the Accused in the family home. Another incident involved the Accused throwing a jug of water over the Complainant while she was having a shower. The Complainant also had thrown water over the Accused when he was having a shower.

A number of the counts were alleged to have occurred when the Complainant requested that the Accused give her a massage. There was evidence that she had suffered from physical injuries and had for instance, a problem with her lower back. A number of massages were carried out in the presence of the Complainant’s mother. It was the Accused’s case that these massages were simply that and did not involve any inappropriate touching constituting indecent assaults. The Complainant gave evidence in respect of some of the incidents which were consistent with the Accused having given her a massage.

An important issue in the trial was that the Accused and the Complainant’s mother separated in difficult circumstances. Post separation, the Accused still communicated with the Complainant and she was quite positive in her contact communications with him.

The Complainant had over a number of years, attended upon a psychologist but there had been no complaint to that psychologist until after the Complainant’s parent’s marriage had broken down. The Complainant gave evidence that she did ask for massages as she regarded them as being harmless. It was only after a trip in a truck, driven by the Accused in January 2016, the Complainant first made a complaint to the psychologist.

There was evidence in the trial that the Complainant had been involved in a sexual relationship with a boy who lived nearby when the family was at Aldershot. The sexual relationship between the Complainant and this boy had come to the notice of the Accused and his then wife. This had been the subject of referral to the psychologist and discussions had taken place between the respective families of the boy, the Accused and his wife, to provide support to the Complainant and to convey to her inappropriate aspects of her relationship with the boy because of her age and other subjective difficulties. The Accused actually attended upon the psychologist and actively sought to identify relevant issues and to assist the Complainant and her mother in dealing with these. It was in this context that the Accused admitted that he had a number of conversations with the Complainant which were no more than he being genuinely concerned about her welfare. This was especially so in the context of the conversation in the truck when the Accused was giving a lift to the Complainant to a party which she wanted to attend.

The Accused denied ever going into the bathroom at Aldershot to look at the Complainant when she was in the shower. In mid-2009, a lock was put on the inside of the bathroom by the builders when the house was built by the Accused and his wife.

On 9 February 2018, the Jury acquitted the Accused on counts 1, 2, 3, 4, 7, 8, 9, 10, 11 and 13 and convicted him on counts 5 and 6 relating to viewing the Complainant naked in the shower at Aldershot.

Regina v PB

In May 2017, Greg Walsh represented PB (The Accused), in respect of 16 counts of sexual offences contrary to section 61M(1), 66F(6)(b), 61J(l) Crimes Act 1900.

The Complainant was cognitively impaired.

The Complainant lived at an address in very close proximity to the Accused. The families of the Complainant and the Accused were well known to each other and had socialised at their respective homes over many years. He allegations commenced at a time just prior to the Complainant’s birthday and involved alleged sexual assaults being carried out by the Accused in his home in close proximity to his wife. There were further allegations on the occasions of a birthday at a restaurant in Sydney. There were a number of counts alleged to have occurred at the Complainant’s home.

The Complainant suffered from a number of conditions including cognitive impairment, deficits in mental functioning and an intellectual disability.

There were a number of experts who gave evidence in the trial for both the Crown and the Defence such in respect of the intellectual functioning of the Complainant.

There were a number of pre-trial applications made by Greg Walsh to the Trial Judge, McLennan DCJ, including that relating to Tendency Evidence. His Honour ruled that only one incident, which was constituted by a count, could give rise to Tendency Evidence. There were other arguments as to Sexual Assault Communications Privilege in which certain records were contended to have substantial probative value upon the trial of the Accused. The trial took three (3) weeks and the Accused was called to give evidence together with a number of other Defence witnesses. Alibi evidence was relied upon in respect of some counts.

The Accused was acquitted in respect of each count.

R v Chute (No 4) [2018] ACTSC 259

On 11 September 2018, Mossop J delivered judgement as to the application for a permanent stay of the special hearing by John Chute. Greg Walsh appeared on behalf of the Accused. The history of the matter is set out in a number of judgments of the Supreme Court; R v Chute [2017] ACTSC 246; R v Chute (No 2) [2017] ACTSC 347; R v Chute (No 3) [2017] ACTSC 409.

On 19 June 2018, the ACAT appointed William Tarrant, a member of the Marist Brothers religious order, as guardian for the accused with power to make an election for the proceedings to be by judge alone. On 26 July 2018, Mr Tarrant made an election for the special hearing to be a trial by a single judge without a jury. On 9 and 20 August 2018, the parties indicated that they did not wish to be further heard in relation to the application for a stay.

The basis of the application for a stay was previously set out in the judgement of Mossop J at [2] in R v Chute (No 2) [2017] ACTSC 347.

The history of the Accused was set out in Mr Walsh’s Affidavit of 10 October 2017.3

Mossop J at [22] set out the medical conditions suffered by the Accused. A further Affidavit of 7 November 2017 of Greg Walsh was referred to at length, including the opinion of a forensic psychiatrist, Dr John Roberts [27] – [32].

His Honour also referred to further Affidavits of Greg Walsh of 10 November 2017, 20 November 2017 and 1 December 2017.

His Honour referred to the High Court decision in Subramaniam v The Queen [2004] HCA 51; 79 ALJR 116 AT [52] – [53]. In Subramaniam v The Queen, the Applicant had relied upon her mental health preventing her from being able to give reliable testimony and that further prosecution of the proceedings could have resulted in a serious worsening of her mental health.

Greg Walsh also relied upon the decision of McDonald v The Queen [2016] VSCA 304; 263

A Crim R 356 at [57]. The factor that gave rise to error as found by the Victorian Court of Appeal in that case, was the trial judge had erred in putting aside consideration the likely outcome of the proceedings if the Applicant was found to have committed the offences [58].

Mossop J at [63] referred to the factor of unfairness and oppression requiring consideration of the community’s interest in bringing matters to trial. His Honour observed that it would only be in extreme circumstances where an abuse of process is established, to determine whether it is appropriate that any particular charge against any particular defendant proceeds: R v Smith [1995] VicRp 2; [1995] 1 VR 10 at [25].

His Honour placed particular emphasis on the descending judgment of Ferguson JA and the feature that the legislature had seen fit to establish process by which persons who were unfit to stand trial were the subject of a special hearing. His Honour ultimately made a finding that “to assess the question of whether unfairness is such as to amount to an abuse of process without recognition of the inherent features of that process would involve the subversion of the legislative scheme.”

Mossop J was also referred by Mr Walsh to the decision of TS v R [2014] NSWCCA 174 at [65]. In that case, Bellew J (with whom Leeming JA and Adams J agreed) found that the primary judge had erred because the appropriate question was whether or not a remedy was warranted in the particular circumstances of the applicant. At [56]-[57], Bellew J observed:

“The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.”

In addition, the overall effect of her Honour’s reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.”

A further fact in that case, was the fundamental unreliability of the Complainant’s evidence.  

Greg Walsh also relied upon the judgment of Arrivoli v R [2017] NSWDC 112.

That was a case in which Buscombe DCJ granted permanent stay in the context of historical sexual abuse by a member of the Catholic clergy who was 94 years of age at the time of the hearing of the application for a stay.

Another important issue that Mossop J addressed, was the requirement of the Accused to attend a special hearing. Greg Walsh submitted that having regard to the physical and psychological condition of the Accused, it was not probable that he had the capacity to attend, which was in accordance with the expert evidence of Dr Roberts and also the other medical evidence relied upon as referred to in the Walsh Affidavit. Section 316(1), provides that the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. Section 316(6) provides that “unless the Supreme Court otherwise orders, ” the accused shall have legal representation at a special hearing.

Mossop J referred to Lipohar v The Queen [1999] HCA 65; 200 CLR 485 at [69], in which the Court found there is “no trial in absentia at common law in the ordinary course ” His Honour referred to various specific statutory provisions, which authorise trials to proceed in the absence of the Accused. His Honour referred to Jenkins v Whittington [2017] NTSC 65 at [89]- [92] as to the circumstances in which a trial can be conducted in the absence of an Accused.

At [87], his Honour compared the Accused’s position to:

“how would the fairness of a trial be advanced by compelling someone who was delusional and uncomprehending of the process to be present during the trial? In this case, the situation is that the accused is unfit because he is unable to follow or adequately process the proceedings. In circumstances where no relevant forensic interest of the accused would be advanced by his presence at the hearing, the presence of a person who was unfit to plead does not appear to me to be an essential requirement of the special hearing process, notwithstanding the general principle in s 316(1 ) of the Crimes Act.”

His Honour ultimately found that there was no suggested reason as to the Accused being present including for an arraignment at the special hearing. His Honour dismissed the application for a permanent stay.

R v Chute (No 3) [2017] ACTSC

On 17 November 2017, Mossop J gave reasons for his conclusion that the fact that the procedure in s.316(2) of the Crimes Act 1900 (ACT) had been overlooked, did not avoid the obligation to determine whether or not the accused was capable of making an election to have a special hearing conducted as a trial by judge alone: see R v Chute (No 2) [2017] ACTSC 347. Greg Walsh appeared as Counsel for John Chute. An Affidavit of Mr Walsh dated 20 November 2017 was relied upon in the further hearing of the matter.

A forensic psychiatrist, Dr John Albert Roberts, gave evidence and his Honour had set out the psychiatrist’s findings in respect of an examination of the Accused at the age care facility where he resided.

Dr Roberts was of the opinion that the Accused was not capable, by virtue of his mental state, of appreciating matters that he would need to consider in coming to a decision in relation to the need for him to elect a judge alone trial or a trial by judge and jury.

Mossop J at [10], concluded that the evidence of Dr Roberts was consistent with the evidence of Mr Walsh, arising with his dealings with the Accused shortly before he was seen by Dr Roberts. His Honour was satisfied that the Accused is incapable of making an election to have his special hearing conducted by judge alone. His Honour then made a direction to the ACT Civil and Administrative Tribunal requiring the appointment of a guardian to consider whether to make an election.

R v Chute (No 2) [2017] ACTSC 347

In this matter Greg Walsh acted for Chute.

On 24 July 2017, Murrell CJ found that John Chute was unfit to plead to an indictment containing 16 counts; R v Chute [2017] ACTSC 246.

On 12 October 2017, the Accused sought an order that there be a permanent stay of the special hearing. Mossop J in R v Chute (No 2) [2017] ACTSC 347 at [2] set out the grounds of the application on behalf of the Accused. Greg Walsh appeared as Counsel for the Accused in respect of the hearing of the application.

On 15 and 16 November 2017, argument took place in relation to the application for a stay. In the course of the argument, it became apparent that following this decision of Murrell CJ, neither of the parties nor the Court had given consideration to the operation of s.316(2) Crimes Act. That permits a person who has been found unfit to plead to elect, either directly or via a guardian to have a special hearing conducted as a trial by judge alone as opposed to a trial by jury.

Mossop J considered the interrelationship between s.316(1)(2) Crimes Act and section 68A & B of the Supreme Court Act 1933 (ACT).

His Honour concluded that there were three reasons why s.68B does not qualify s.316 so as to preclude the making of election by or on behalf of a person who has been found unfit to plead in relation to “excluded offences “ within the meaning of s.68B.

In these circumstances, Mossop J did not determine the application for a stay and heard further submissions as to how to proceed in relation to the operation of s.316(2).

The Canbera Times – Ex-Marist brother John ‘Kostka’ Chute found unfit to plead to child sex abuse charges

Shalhoub v State of New South Wales [2017] NSWDC 363

Greg Walsh acted for Andrew Shalhoub, who was successful in his District Court Action Shalhoub v State of New South Wales [2017] NSWDC 363.

In this matter Greg Walsh acted for Andrew Shalhoub who on the 7th of June 2015 was 19 years of age. He was with a friend, Mustapha Neffati, at a gathering at a home in southern Sydney on the evening of Sunday 7 June 2015. At about 2:00am on Monday morning, a public holiday, Mr Nefffati contacted his brother Wassim Neffati, to come and collect him and Mr Shalhoub. When Wassim arrived, Mustapha and Mr Shalhoub got into the car and they commenced the return journey. Mr Shalhoub was in the rear of the car. As they proceeded from the cul-de-sac onto David Road at about 2:20am, Police activated flashing lights and Mr Neffati pulled over. Mr Shalhoub, Wassim and Mustapha were in instructed by Police to put their hands out of the car. Mr Shalhoub was then pulled from the car, taken to ground, struck several times including blows to his head whilst he lay faced down on the ground, He was handcuffed, searched and eventually informed that he was under arrest. He was informed of his arrest at about 2:40am, allegedly for stalking a Police Officer. When the Police thereafter realized that he could not have been involved in any stalking, he remained under arrest and at 3:05am taken to a Police Station arriving at 3:25am. A police interview was conducted in connection with an investigation of “resist arrest”, no charges were laid and Mr Shalhoub was released from police custody later that morning at about 7:40am.

Wassim Neffati, had been awaken at about 2:00am to collect his brother and Mr Shalhoub. He proceeded behind a private motor vehicle driven by an off duty female officer who had just left Revesby Police Station in close proximity to where Wassim and his brother lived with their mother. Two officers namely, Troy Skinner and Matthew Poulton, also left Revesby Police Station at the end of their shifts. They observed the grey Lexus driven by Wassim Neffati make a U-turn and proceed behind the private vehicle known by them to be driven by the female officer. The private vehicle, followed by the Lexus, proceeded in a direct route to a nearby main road, Davies Road, where each car turned right, to the south. Skinner and Poulton formed the viewed that the Lexus was following and stalking the private vehicle driven by the off duty officer and telephoned the Police Station to report the suspected stalking. Other Police responded.

At about 3km from the Police Station, the private vehicle took an exit from Davies Road onto Clancy Street. Skinner saw a car on Clancy Street and assumed it was the private vehicle containing the female off duty officer that had taken the exit. The Lexus did not follow but continued a further 7km along Davies Road, Alfords Point Road which it became New Illawarra Road and ultimately to the cul-de-sac off David Road. Skinner and Poulton discussed the fact that the Lexus vehicle had stopped travelling behind the private vehicle. However, this factual observation by Skinner and Poulton was not relayed not any other Police Officer. Skinner and Poulton gave information to assist other on duty Police Officers to locate the grey Lexus.

The action was heard over 13 days by P Taylor SC DCJ. A critical issue that arose was the suspicion as to s.99(1) Law Enforcement (Powers and Responsibilities) Act 2002.

The issues

The State of New South Wales denied any assault and pleaded a lawful arrest. It was clear the Lexus had voluntarily pulled over in response to Police flashing lights. Whether this could constitute an arrest did not arise, as in submissions, the State’s case was that the Police had reasonable grounds to suspect that the Plaintiff had committed the offence of stalking for the purposes of s.99 of LEPRA. The people who conducted the physical arrest of the Plaintiff were the Constables who removed him from the vehicle. According to the State of New South Wales, the process began when they stopped the car. However “… but obviously at some point the actual arrest begins and that arrest begins when the Officers who go to the car acting in accordance with their instructions take steps to remove them from the car and handcuff them”. The direction for the arrest was given by Mr Love and other Police Officers. Thus his Honour was not required to decide whether a direction to get out of the car constitutes an arrest. See State of New South Wales v Exton [2017] NSWCA 294.

Sub-section 99(2) of LEPRA, entitles an arresting Police Offcer to rely on the appropriate direction from another Police Officer. However the directing officer is precluded from giving a direction unless he or she satisfies the requirements of s.99(1). In the event that the directing officer does not satisfy the requirements of s.99(l), the directing officer (rather than the arresting officer) is liable as if the directing officer had committed the unlawful arrest.

Taylor DCJ held that the lawfulness of the exercise of the statutory power must depend upon the statutory conditions governing its exercise.

His Honour examined in detail the evidence of a number of Police Officers namely, Senior Constable Skinner, Senior Constable Poulton, Senior Constable Hurney, Constable Dunn, Constable Muir and Leading Senior Constable Love.

In respect of suspicion of stalking based on reasonable grounds, his Honour found at [21] that stalking itself is insufficient to establish the offence.

In respect of Senior Constable Skinner and Poulton, his Honour at [25] found that officers Skinner and Poulton were not the arresting officers nor did either of them direct the arrest. The arrest was affected by Constables Dunn and Muir and assisted by Senior Constable Hurney.

At [31] his Honour found that Officer Hurney was not the arresting officer. Officer Dunn was informed by an off-duty police officer was being followed home. Officer Dunn traveled with Officer Love and Senior Constable Casey to the scene with lights and sirens on. His Honour found that obviously Dunn was involved in striking Mr Shalhoub as he attempted to have Mr Shalhoub handcuffed, Officer Muir handcuffed Mr Shalhoub and Officer Dunn conducted a body search [32].

At [39] his Honour observed that Officer Dunn did not give evidence of holding any belief or suspicion that the occupants of the Lexus was stalking or had the requisite intent. Thus, he could not infer this belief or suspicion. At the time Officer Dunn got Shalhoub out of the car, he was told to do so and he had no “intention in his own mind” as to what he would once Mr Shalhoub was out of the car. Therefore Officer Dunn removed Mr Shalhoub from the car because he was told to do so by Officer Love. His Honour at [41] found that the removal of Mr Shalhoub by Officer Dunn forcefully from the car, was not based on a direction formally to arrest, detain, subdue or restrain Mr Shalhoub, nor on a reasonable based suspicion that he needed to do that under s.99(l) or (2) of LEPRA.

At [43] his Honour noted that there is an important distinction between a direction to “get them out of the car” and a direction to “arrest them” See State of New South Wales v Exton [2017] NSWCA 294.

In respect of Officer Muir, his Honour did not accept that the direction from Officer Love embraced getting Mr Shalhoub onto the ground [49].

His Honour found that Officer Dunn and Officer Muir, forcefully removed Mr Shalhoub from the rear passenger seat of the car on the instruction of Offcer Love. Mr Shalhoub was there after brought to the ground. Officer Dunn and Offcer Muir gave evidence of the direction by Officer Love, but on the direction found by his Honour, the arrest of Mr Shalhoub could not be justified by it.

His Honour at [56] found that the telephone call “concerning a suspect vehicle that may have been following a Police Officer” was not persuasive but Officer Love had a suspicion on reasonable grounds that Mr Shalhoub had committed the offence of stalking under s. 13 of the Crimes P VA Act.

At [59] his Honour made findings that:

  1. Neither Officer Muir and Dunn were directed to arrest Mr Shalhoub; and
  2. None of the Officers Love, Muir or Dunn suspected on reasonable grounds that Mr Shalhoub had committed an offence.

At [63] his Honour made a finding that no officer gave evidence concerning the reasonable necessity for the arrest.

The State of New South Wales pleaded that the specified reason for the arrest under s.99(l)(b) of LEPRA was “to stop the person committing or repeating the offence or committing another offence”. However no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence.

At [68] his Honour found that there was no obligation on a Plaintiff to plead to a defense. See Rule 14.27 of the Uniform Civil Procedure Rules 2005 (“UCPR”).

The State argued that Mr Shalhoub in the Amended Statement of Claim had pleaded that at the time of the arrest that he, the Plaintiff, was not informed of the reason for his arrest despite asking Police on a number of occasions as to the reason why he was being arrested. According to the State, this limited the issue of unlawfulness of the arrest as to whether or not the Plaintiff was informed of the reason for his arrest, His Honour rejected this argument.

Informed of arrest as soon as reasonably practicable

A Police Officer who arrests a person but fails to give the frue reason for the arrest is liable for false imprisonment: Christie v Leachinsky [1947] AC 573, 587; State of NSW v McCarthy [201 5] NSWCA 153 at [78]; ss.201 and 202 ofLEPRA.

At [81] his Honour found that no explanation was given by Love, Dunn, Muir or Hurney as to why they did not identify themselves and provide a reason for the arrest of Mr Shalhoub or his removal from the car.

At [87] his Honour found that the Police approached the Lexus and that it had pulled over, was stationary and the occupants remained in the car. His Honour could see no reason why the occupants could not be informed at that time of the reason for them being stopped and being directed to get out of the car. The suspicion that they had recently been following a Police Officer from near Revesby Police Station and down Davies Road could have been readily and briefly stated.

At [89] an issue arose as to whether a failure to provide as soon as reasonably practicable a reason for the arrest could retrospectively render prior conduct unlawful. In the State of NSW v McCarthy [2015] NSWCA 153 at [78] and [79] it was found that “the lawfulness of that exercise is not expressed to be contingent on the subsequent provision of information”.

Was reasonable force used

Reasonable force is no defence to the Plaintiffs claim if the arrest was otherwise unlawful. If contrary to his Honour’s findings, the arrest was lawful, the Police were still obliged to use reasonable force (see LEPRA, ss230, 231).

At [92] his Honour found that Officer Dunn struck the Plaintiff on the head on a number of occasions whilst Mr Shalhoub was lying face down on the ground. Officer Dunn described this as a “hammer strike “. Officer Dunn asserted that he did not intend to hit Mr Shalhoub on the side of the head. Officer Dunn noticed that Mr Shalhoub had blood on his mouth and some swelling on the right side of his face. His Honour found the evidence of Dunn to be difficult to accept.

The record of interview and photographs of the Plaintiff demonstrated observable facial and head injuries which came out of the incident. Officer Dunn was not a small man and he admitted to striking Mr Shalhoub on the head a “few times”, “at least twice”.

Officer Dunn conducted a personal search of Mr Shalhoub, after he was handcuffed. Mr Shalhoub gave evidence that the Police Officer felt his private parts, he said to Officer Dunn when Officer Dunn said “mate what’s there? ” “it’s my penis. “ Officer Dunn then undid his pants and started “taking my penis out and grabbed it and I started screaming at him and then he stopped it”.

His Honour referred to the record of interview and the fact that Officer Muir was present and saw everything. In the record of interview he said “that wasn’t me Andrew …yeah that wasn’t me Andrew”. Such an acknowledgment bore that the allegations made by the Plaintiff were truthful in the record of interview.

At [117] his Honour accepted that the Plaintiff was searched about his groin area, that his belt was removed and the top button of his jeans was undone and that Officer Dunn squeezed his penis “whilst scrunching his pockets”. His Honour made a finding that he was not satisfied of the manner of the search that was conducted involved only such force as was reasonable necessary.

Was the period of detention justified?

His Honour found that there was no basis to continue the Plaintiff’s arrest after 3:05am, by which time the Police were aware that he was not in the Lexus at the time of the suspected following of the off duty police officer.


His Honour gave lengthy reasons in respect of damages and referred to Zaravinos v The State of New South Wales (2004) 62 NSWLR 58 [2004] NSWCA 320 (another case in which Mr Walsh represented the Plaintiff). In Zaravinos the detention was 3 hours and 23 minutes of detention which was found to be “unnecessary, high handed, humiliating and unnecessarily long”.  His Honour awarded the following compensation:

  • Compensatory damages for wrongful arrest/false imprisonment, including aggravated damages $35,000.00
  • Compensatory damages for assault and battery including aggravated damages $30,000.00
  • Exemplary damages $ 15,000.00
  • Interest $2,018.63
  • Total $82,018.63