In this matter Greg Walsh acted for Christine Reid who claims damages for professional negligence against her former solicitor, Diane Wright.
The proceedings were commenced by statement of claim filed in the Supreme Court Sydney on 2 August 2013. By Notice of Motion filed 30 June 2014 the Defendant, Diane Wright sought an order that the proceedings be transferred to the Supreme Court of Queensland. The application was brought pursuant to s.5(2)(b)(iii) of the Jurisdiction of Courts (Cross Vesting) Act 1987.
The application was heard by McCallum J. McCallum J observed that the principles to be applied in determining an application under the cross-vesting legislation was considered by the High Court in BHP Billiton Ltd v Schultz  HCA 612; (2004) 221 CLR 400.
The Plaintiff retained the Defendant between February 2008 and February 2011 to act for her in respect of a property settlement with her ex-husband. Ms Reid alleges that Ms Wright failed during that time to give advice as to the importance of instituting proceedings promptly and to take steps otherwise to protect her interests. The legal service was to be provided pursuant to the retainer were in the area of family law, which is governed principally by Commonwealth legislation. Ms Wright’s retainer was terminated in February 2011.
After the determination of the retainer a dispute arose as to the payment of Ms Wright’s fees. Ms Wright alleged that Ms Reid initially agreed to pay her fees as assessed in a “short form assessment” but that, after the assessment had been completed, she reneged. That dispute is the subject of the in the Magistrates Court of Queensland.
Her Honour noted the submission made by Mr Sheller on behalf of Ms Reid that there was significant unexplained delay in seeking a transfer. He relied upon r 44.5 of the Uniform Civil Procedure Rules 2005. Mr Curtin SC who appeared on behalf of Ms Wright contended that rules of court ought to be applied with a degree of flexibility.
McCallum J observed that the rule plainly contemplates that parties should ordinarily turn their minds to the issue of cross-vesting as soon as practicable after the commencement of the proceedings. That was not to say that it would be inevitably fatal to the success of a cross-vesting application but nevertheless it is an important matter to be taken into account.
Mr Sheller submitted to Her Honour that a cross-vesting application calls for a “nuts and bolts” management decision as to which court, in the pursuit of the interests of justice, is the more appropriate to hear and determine the substantive dispute.
McCallum J concluded in the interests of justice the Supreme Court of New South Wales was the more appropriate court to determine the proceedings.
Greg Walsh acted for Turia Pitt who was injured in a fire while competing in an Ultramarathon in the Kimberley region of Australia. Mr Walsh commenced proceedings and the case against RacingThePlanet was resolved on confidential terms satisfactory to both parties. Both parties agreed to make the following joint press release:
ABC News – Ultramarathon runner Turia Pitt, burnt during race in Kimberley, WA, reaches multi-million-dollar settlement.
The Guardian – Ultramarathon burns victim Turia Pitt settles with race organiser.
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
On 4 August 1996 MM was a passenger (in utero) that was driven by her father and had been built, rebuilt and modified as Hot Rod.
The vehicle was being driven on an outer Western Sydney Road and whilst being driven by D in negotiating a right hand bend on the roadway he lost control of the motor vehicle and SM suffered catastrophic injuries.
SM was admitted to WestmeadHospital where she underwent emergency surgery. She suffered horrific injuries including a brain injury and as a result was rendered totally blind.
MM was delivered by Caesarean Section suffering from Hyaline Membrane Disease, Intraventricular Haemorrhage and associated Hydrocephalus. These conditions were causally related to her prematurity (25 weeks) and extremely low birth weight (714g).
MM remained as an inpatient at WestmeadHospital from the date of the accident until 14 October 1996. She suffered from Post-haemorrhagic Hydrocephalus, Periventricular Leukomalacia, chronic lung disease and Retinopathy of prematurity. Her mother remained in WestmeadHospital for nine months.
MM was eventually discharged into the care of devoted grandmother MV who had the onerous task of not only caring for her catastrophically injured daughter SM, but also her grand-daughter MM.
MV applied herself in an absolutely devoted way to the ongoing care and support of her tragically injured daughter and grand-daughter.
Greg Walsh was instructed to act for SM and MM. The next friend was MV. As a result of the devoted efforts of MV and due to intensive rehabilitative treatment SM was eventually able to live with her mother and daughter in the most difficult of circumstances. Her disabilities were such that she required constant care and ongoing rehabilitative treatment.
MM experienced neurological problems including a blocked shunt. She underwent operative care by her very experienced and devoted neurosurgeon, Dr Chaseling.
MM suffered from Cerebral Palsy and significant difficulties with her gait. She was treated by many specialists and gradually improved due to the devoted efforts of these medical and other practitioners.
In time and indeed over many years MM gradually improved. This no doubt was not only due to the tremendous efforts of her doctors and other specialists but the absolute devotion of her grandmother.
As a result of the complex nature of MM’s injuries and disabilities and despite proceedings being instituted in the Supreme Court relatively shortly after the accident, MM’s matter was not resolved until February 2014. Thus Greg Walsh in effect had been acting for MM for approximately 16 years.
Although there were complex issues as to causation the matter was eventually resolved for an amount of $4 million plus out of pocket expenses.
In this matter Greg Walsh acted for AA in a hearing before Barr AJ in the Supreme Court of NSW.
The Plaintiff is the daughter of the Defendant and CC. She is now 19 years of age. The Defendant began sexually interfering with the Plaintiff when she was five and continuing until she was twelve. Plaintiff sought aggravated and exemplary damages, interest and costs.
The Defendant agreed with the facts pleaded including those relevant to aggravated damages. He also agreed that exemplary damages were appropriate.
Barr AJ set out the particulars of the assaults pleaded including the effects on the Plaintiff. His Honour acknowledged that the effects upon the Plaintiff had been profound and in particular noted the impact of the abuse upon the Plaintiff’s capacity to maintain relationships including her sibling and her mother.
His Honour noted the tragic history of the Plaintiff including attempting to kill herself by cutting her throat. She was saved in emergency surgery but was committed to the care of mental health services. Since 2011 the Plaintiff has suffered seizures and has descended into coma.
A report of Dr Colette Hourigan was entered as was a lengthy report of Dr Patricia Jungfer.
His Honour awarded the Plaintiff damages as follows:
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.
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.
Mr Walsh Acted for a champion cyclist Mr Simmons who lost his leg after colliding with a steel boomgate over one of the city’s most popular cycle routes. Justice Peter Hall awarded Mr Simmons almost $1 million in compensation. Read the full judgment here:
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:
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  VR 676 at 681 Deane J; Plomp v R  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  VSC 378.
The Tribunal also considered the decision of Brereton in Council of Law Society of NSW v Clapin  NSWADT 83 at .
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.
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.
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  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  NSW CCA 196; R v Dunn (unreported Supreme Court NSW 17 May 1990); Mordaump v Director Public Prosecutions  NSW CA 121; JDB v DPP & Ors  NSW SC 1092; JC v DPP  NSW DC 424.
In JC v DPP  NSW DC 424 Norish QC DCJ said at -:
“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  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.