Cases

R v Huon [2012] NSWSC 1092

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

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

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

Richardson v Laing O’Rourke (BMC) Pty Ltd (2012)

In this matter, Greg Walsh acted for Julian Richardson – a Plaintiff in an action against his employer.

On 13 November 2007, whilst conducting his duties as an employed “Linesman” and working on the Epping to Chatswood rail tunnel, the Plaintiff was struck in his left cheek and left eye by a copper wire. The wire was inadequately fixed to a “D” shackle system and the tension built up in the string line caused it to whip towards the Plaintiff’s face.

The Plaintiff sustained serious injury – virtually complete loss of sight in left eye – and sought damages.

The matter was fixed for hearing in the District Court, Sydney, for two days but was ultimately settled. The Plaintiff received considerable damages pursuant to both the Common Law and the Workers Compensation Act.

 

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

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

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

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

Commonwealth DPP v Moffat (2012) (NSWDC, per Dick DCJ)

On 6 September 2012, Greg Walsh appeared for Edward John Moffat at the District Court, Mackay in respect of his plea to a count contrary to s. 474.19(1)(1) of the Criminal Code Act 1995 (CTH).

The sentencing proceedings were heard by her Honour Judge Dick SC.

The offender had a prior conviction of ‘Indecent Dealing’ and also an extensive subjective history. He had entered a plea at the earliest opportunity and had fully cooperated with investigating police. At the time of the execution of the search warrant the offender made admissions as to his conduct. The total number of images accessed by the offender amounted to 1,640 of which 98.5% were at level 1 on the Child Exploitation Tracking System (CETS) scale. His Honour sentenced the offender to a term of imprisonment of eight (8) months with an actual term of imprisonment of three (3) months and then a period of supervision for fifteen (15) months.

McMaster v State of NSW; Karakizos v State of NSW (2012) NSWDC 108

In this matter Greg Walsh acted for the Plaintiffs in proceedings heard before P Taylor SC DCJ.

The Defendant made an application for a stay of proceedings during related criminal proceedings.  An application was also made by the Defendant to restrict access to subpoena documents arising out of related criminal proceedings.

Greg Walsh acted for each of the Plaintiffs in respect of an incident that occurred on Monday 26 September 2011 at Colyton.  Two police officers attended this address when one of the Plaintiffs, Mr McMaster was shot in the abdomen by one of the police officers in the presence of the other two Plaintiffs.

Mr Walsh swore an affidavit opposing that the documents produced by the State of NSW “have not been accessed, uplifted or copied by” he or any of his staff or to his knowledge “any other person on behalf of the Plaintiff.”

In our argument the Plaintiff’s position was supportive of the criminal proceedings which arose out of the invasion of the home of the Plaintiffs and which had occurred just prior to the shooting of the incident in which Mr McMaster was shot by police.

The Defendant asserted that each of the Plaintiffs should not have access even to their own statements.  Further that Mr McMaster had not yet given a formal statement to police.

His Honour held that neither of these reasons could have given rise to a stay of proceedings.  The fact that Mr McMaster had not given a statement to police was not relevant to the proceedings.

The Defendant argued that the documents produced could only be used in the course of the proceedings.  In that context such statements were provided in the criminal proceedings and as such they could not be accessed in the civil proceedings.

His Honour rejected this contention and noted that it was misconceived.  There was no authority provided by Mr Saidy in support of the contentions nor was any privilege claimed in the proceedings on behalf of the Defendant.

His Honour observed that there was no longer, a rule that civil proceedings should be stayed whilst related criminal proceedings are pending.  See Griffin v Sogelease Australia Ltd & Ors [2003] NSWCA 158; Roshfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 at 19.

The Defendant submitted that the Accused in the criminal proceedings would be at risk in terms of self incrimination in seeking to defend themselves in the civil proceedings.

However the problem with such an argument was the offenders are not even parties to the proceedings.  His Honour made a finding that he was not persuaded that it was likely the Defendant would cross-claim against them.

The Defendant further asserted that it would be contrary to the interests of justice or Mr McMaster or the other Plaintiffs to give a priority in pursuing their own interests in the civil proceedings to the detriment of criminal proceedings.  His Honour rejected this assertion.  It was contrary to well established authorities.

His Honour made orders that the proceedings be consolidated and that first access would be granted to defend subpoenaed documents so such documents could be marked “successful by Plaintiff’s solicitors” and grant access to the Plaintiff’s solicitors to those documents on the undertaking not to provide a copy of same to the Plaintiff other than providing to each Plaintiff a copy of their own statements.

The Defendant was ordered to pay the Plaintiff’s costs of the Notice of Motion.

 

Padria v Padria [2012] FAMILY COURT

In this matter Greg Walsh acted for the mother who had received information and documents from the father in financial proceedings in the Family Court. She had sent that information and those documents to the Child Support Registrar with a departure application.

It would agree that the information in those documents attracted the operation of a Harman obligation, being an obligation to prevent the use of information by a third party who is aware of its provenance. The issue that arose was whether the Registrar had breached the Harman obligation and also whether the mother had breached that obligation. It was contended by the father that the Registrar had aided and abetted the mother in breaching the Harman obligation. It was argued on behalf of the mother and the Registrar that the Harman obligation must yield to a statutory provision, namely provisions of the Child Support (Assessment) Act (CSAA) involving the nature of disclosure in the departure application to the Registrar.

The mother and the Registrar relied upon extensive case law in respect of these issues in the hearing before Justice Watts. His Honour held that neither the Registrar nor the mother were in breach of the Harman obligation and a declaration was made that the Registrars and officers and employees of the Department of Human Services are not prohibited by reason of any undertaking to the Family Court from using information in the exercise of their statutory functions and powers namely the information in the documents sent by the mother to the Department as part of her application.

An application by the Father that a case be started before Court was also dismissed by Watts J.

R v John Francis Gaven (14 May 2012 – 5 July 2012)

In this matter, Greg Walsh appeared as trial counsel for John Francis Gaven – a member of the Vincentian Order – in respect of his trial at the District Court Sydney. The trial was conducted by his Honour Judge Cogswell SC and involved two (2) Complainants. The pre-trial applications extended over two weeks and involved issues involving sexual assault communications privilege, tendency and coincidence evidence and complaint evidence.

The Accused faced eleven (11) counts and the jury could not agree as to a verdict on any count. The jury was ultimately discharged by the Trial Judge.

Council of the Law Society of NSW v Simpson [2011] NSWADT 242

Peter Kaiser Simpson was the subject of a disciplinary application by the Council of the Law Society of New South Wales alleging that he had been guilty of professional misconduct.

The Law Society of New South Wales contended that the solicitor had breached sections 254 and 255 of the Legal Profession Act 2004 in that he was guilty of misappropriation and delay in the payment of disbursements due to third parties and had that he failed to supervise his employees.

The solicitor admitted the conduct described in the amended particulars relied upon by the Law Society as constituting professional misconduct, however he denied the grounds alleging misappropriation.

The Tribunal set out the amended particulars in respect of each of the grounds of complaint and also the agreed facts.

On 7 September 2009 Mr Napper, a trust account inspector, attended the solicitor’s office and inspected the firm’s accounts. Mr Napper identified unpaid disbursements and delay in having paid such disbursements where funds had been received by the firm into the office account, either by transfer from trust, from settlement monies or otherwise.

On 8 September 2009 Mr Napper spoke to the solicitor and informed him that there were unpaid disbursements which had not been paid. The solicitor said that he was not aware of such disbursements. Mr Napper raised with the solicitor the arrangements in respect of the payment of unpaid disbursements such as fees due to Mr Jurisich of Counsel and Aspen Medical. The solicitor said he would have to check with his staff. The solicitor was not aware of the arrangements relating to Counsel and Aspen Medical. The Law Society accepted the solicitor’s position in relation to that issue.

On the afternoon of the 8th of September 2009, the solicitor spoke to his accounts staff and informed them of the remarks of the trust account inspector. The head accountant informed the solicitor that there were unpaid disbursements and unpaid memorandum of fees and arrangements were in place for the payment in two instances. The solicitor sought details and he was then informed that in respect of monies transferred from trust to office there was $196,476.00 in unpaid disbursements, not including fees to Counsel and Aspen Medical. In respect of monies paid directly into the office account there were $187,558.24 in unpaid disbursements not including fees due to Counsel and Aspen Medical. The total amount owing to Counsel was in the sum of $1,297,796.06.

In June 2008 the head accountant discussed the matter directly with Counsel and as the practice had cash flow problems and an arrangement was made whereby his fees were reduced by way of payment of $20,000.00 per week. The solicitor told the head accountant that this was the first he had ever heard of this arrangement. Similar arrangements had been put in place with Aspen Medical and again the solicitor had not been consulted about this. There was credit in the solicitor’s firm’s favour in the sum of $72,905.01 in respect of Aspen Medical.

The solicitor had in practice a system whereby he had delegated to the head accountant and administration manager authority to sign office cheques. 70 such cheques were issued daily. The solicitor signed trust cheques but if he was absent, with permission of the Society, such cheques were signed by authorised solicitors in his employ.

By way of background, the solicitor had been admitted to practice in 1976 and had 75 staff including 13 employed solicitors. He currently had over 4000 matters.

In respect of each of these matters there was a comprehensive system whereby appropriate disclosure was made pursuant to the provisions of the Legal Profession Act; Motor Accidents Compensation Act and Workplace Injury Management and Workers Compensation Act. In respect of each matter appropriate authorities were obtained from the clients in respect of the payments of costs, disbursements and outlays.

The Administrative Decisions Tribunal, constituted by M Chesterman, Deputy President, M Riordan, Judicial Member and C Bennett, Non-judicial member, referred to the relevant statutory provisions of the Legal Profession Act.

Findings

The Tribunal found that the Law Society had established the three grounds being those admitted by the solicitor, namely:

  1. Breach of section 254 of the Legal Profession Act
  2. Breach of section 255 of the Act; and
  3. Failure to supervise

See Re Robb & Anor (1996) 134 FLR 294; Law Society of New South Wales v Davidson [2007] NSWADT 264

Did the solicitor’s conduct involve misappropriation?

It was contended by the Law Society that the conduct of the solicitor amounted to misappropriation. Law Society of New South Wales v McCarthy [2003] NSWADT 198; Council of the Law Society of New South Wales v Doherty [2010] NSWCA 177.

It was contended on behalf of the solicitor that in disciplinary proceedings under the Legal Profession Act “dishonesty” is a “necessary element” in any charge of misappropriation; Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83; Brereton v Legal Service Commissioner [2010] VSC 378.

In the latter judgment, Beryl J observed at [39]:

“For reasons which I will give when I consider the issue of dishonest belief, it is a very different thing to say that a person had a dishonest belief or “well knew” something on the one hand, and that a person “ought to have known” something on the other. The two states of mind are of a different order and legal character and mark the boundary between incompetent or negligent administration on the one hand and misappropriation on the other”.

The Tribunal found that the solicitor was unaware until Mr Napper spoke to him on 8 September 2009 of three (3) crucial aspects of his firm’s management of finds received by it. In such circumstances the Tribunal found at [46] that the conduct alleged against the solicitor did not amount to “misappropriation”.

Orders

The Tribunal reprimanded the solicitor and fined him $8,000.00 and directed him to attend two (2) refresher courses offered by LawCover and pay the applicant’s costs.

For a copy of the decision of the Tribunal please see: www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=155194.

Maloney v The Honourable Michael Campbell QC & Ors [2011] NSWSC 470

On 24 May 2011 Hoeben J delivered judgment in respect of a claim by Brian Vincent Maloney, a Local Court Magistrate, seeking prepatory relief that the decision of the defendants that he is currently incapacitated for performance of the office of Magistrate is invalid.

A judicial officer can only be removed from office pursuant to s.53 of the Constitution Act 1982, by the Governor on an address from both Houses of Parliament in the same session, seeking removal on the grounds of prudeness, behaviour or incapacity. The removal can only occur if there is a report from the Conduct Division containing an opinion set out in s.28(1)(a) Judicial Officers Act, 1986, NSW (“the Act”).

Magistrate Maloney was subject to four complaints. Three of these relate to events between 17 September 2008 and 23 December 2009. The first two complaints were from individuals who appeared in proceedings before the plaintiff, Mr Tareq Altaranesi (9 January 2009) and Mr Oliver Banovec (17 September 2009). The third complaint was referred to the Conduct Division being from Dr Duncan Wallace concerning mental health hearings which took place before Magistrate Maloney on 3 December 2009 at the Kiloh Centre, Prince of Wales Hospital. The fourth complaint consisted of an image on Magistrate Maloney’s computer in 2002.

Magistrate Maloney had first consulted Dr Olav Nielssen, Psychiatrist, on 15 February 2010. He was diagnosed with a bipolar disorder. Treatment began with Dr Nielssen in February 2010 and there has been no further apparent behaviour or any evidence of hypermanic episode on his part.

The Conduct Division required Magistrate Maloney to be examined by Dr Phillips and Dr O’Dea. The psychiatrists gave joint evidence to the Conduct Division. In the report of 10 January 2010 Dr Nielssen expressed a positive opinion in relation to treatment and that Magistrate Maloney had good insight regarding the nature of the condition and the need for that treatment.

The Conduct Division accepted that the Doctor’s opinion, in the joint report, was that Magistrate Maloney’s mood state is currently stable and that he is currently fit to perform the duties of a judicial officer not being affected by symptoms that might affect his capacity to perform such duties.

However, the Conduct Division went on to find that Magistrate Maloney’s bipolar 2 disorder was a lifelong one requiring continuous treatment and supervision. If not correctly treated he will suffer hypermanic attacks and other changes of mood with increasing frequency and not increasing the intensity. On such a basis he would be clearly incapacitated for his judicial duties.

It was in this context that the Conduct Division formed the opinion that incapacity could justify parliamentary consideration of the removal of Magistrate Maloney from office on the ground of prudent incapacity.

In argument before Justice Hoeben, it was contended that the Conduct Division had fallen into error. His Honour identified those errors at [82] (a-d) namely that:

  • It replaced a statutory test for proven incapacity with a speculative of enquiry as to whether there was a chance of previous incapacity currently reversed could re-emerge within a 12 year period;
  • Did not apply the Briginshaw standard;
  • If relied upon a finding of the plaintiff would or might have needed treatment which was never put to him and was against the evidence of the treating psychiatrist;
  • the sequence of events was not supported by the evidence of Dr O’Dea or Phillips

Hoeben J ultimately rejected all of the arguments. His Honour at [109] found “that the conduct division appropriately summarised the effect of the evidence.”

His Honour noted that there was no issue in the proceedings that Magistrate Maloney had been working as a Magistrate since his return to work in August 2010 without complaint and without reoccurrence of symptoms. His Honour found that the evidence of Dr Nielssen, with which the other two Doctors did not disagree was that on balance, Magistrate Maloney would be the subject of at least one (1) further hypermanic episode during his working career as a Magistrate. If not detected immediately so that a gap between recognition and treatment occur, this could lead to behaviour that was unjudicial.

At [114] His Honour dealt with the finding that Magistrate Maloney had a capacity for denial, self justification and self deception. It was contended on his behalf that there was no evidentiary basis for such finding. His Honour referred to “some of the evidence relating to the screen saver issue and the facial gesture made at the Prince of Wales Hospital, that evidence was given at a time when the Plaintiff was functioning appropriately as a Magistrate receiving treatment

It is unclear whether His Honour was actually referring to the evidence of Magistrate Maloney given in the Conduct Division about these issues or other evidence given by witnesses at the time of such behaviour. This is an important distinction because both the screen saver and Prince of Wales Hospital matters occurred at a time when Magistrate Maloney was undiagnosed and not receiving treatment. Though his Honour went on to refer to the findings not being about medical issues but were demeanour based findings. The context in which the Conduct Division made such findings specifically relating to the finding that Magistrate Maloney would be unlikely to comply with his treatment regime.

Justice Hoeben dismissed the summons with costs.

Police v Wayne Riley & Jeanette Riley (2011)

In this matter Greg Walsh acted for International Australian Champion Golfer, Wayne Riley, and his mother who were charged with assault occasioning actual bodily harm and affray.

The charges arose as a result of an incident after Wayne’s father, Graham Riley, 71, was involved in an altercation with a youth two days before Christmas in 2010.

Wayne who has played in the European Golf Circuit for 20 years and has been a British Television Sports Commentator, denied emphatically that he was guilty of assault occasioning actual bodily harm, common assault and affray. His mother Jeanette also strenuously denied her guilt.

The incident occurred when the Riley family were on their way to a local restaurant at Oatley when the youth was involved in a ‘push and shove’ incident with Wayne’s father.

The 1991 Australian Open Champion Golfer had been heading to a bottle shop when the scuffle between his father and the youth occurred. On his return to where his father was with the youth, Wayne allegedly got into an altercation with the youth. A number of neighbours, including a police officer, came onto the scene. The Court then heard that Mrs Riley also became involved and ended up on the ground.

The case was heard by Magistrate Trad at Sutherland Local Court over two days. Her honour found that Mrs Riley had tried to stop the fight between her son and the youth and was pushed away. The youth had grabbed Mrs Riley hitting her chest and as she fell she feared she would be hit again and she struck out with her feet. She had not deliberately kicked the youth, whose head by this time was on the ground. The youth had also struck the golfer and the two had struggled with Wayne acting in self defence.

Greg Walsh made a successful application for costs.

Law Society of NSW v Singh [2010] NSWADT 26

Jaskaran Singh, a solicitor of the Supreme Court of New South Wales, was born on 1 October 1954 in Punjad, India. He attended Punjabi University in Patiala and graduated with a Bachelor of Arts in 1975. He enrolled at the Gahrwal University and graduated with a Bachelor of Laws degree in 1976, and worked as a legal practitioner in Nawanshahr.

In November 1987 Mr Singh migrated to Australia with his wife and two children who at that time were 3 and 1 years of age. He obtained work in an Aluminium Processing Factory. He then obtained a job with the State Rail Authority as a train guard where he continued to work for 10 years. Whilst working as a train guard he enrolled in the Legal Practitioners Admission Board course at the University of Sydney and in 1995 he obtained a Diploma of Practical Law Training at the College of Law and on 7 July 1995 he was admitted to the Supreme Court of New South Wales.

Between 4 December 1995 and 1 July 1998 he was registered as a Migration Agent with the Migration Agents Registration Authority.

In or about 1996 he met a George Caristo and as Mr Singh wanted to gain experience in a legal practice he worked with Mr Caristo several days a week without fees. On 16 August 1998 he commenced employment with George Caristo however; he did not receive any wages. The terms of his employment were that Mr Singh would introduce clients to Mr Caristo’s practice, especially those in the Indian community. On 25 November 2001 Mr Singh left the employment of Mr Caristo and was granted an unrestricted practising certificate on 28 November 2001. Thereafter, Mr Singh worked in the garage of his home.

Mr Singh’s eldest son was diagnosed as suffering from schizophrenia. His condition was a very serious one and he was admitted to hospital on a number of occasions over many years. Mr Singh’s son also suffered from significant behavioural problems including violent outbursts and delusional thoughts and was admitted to the Westmead and Cumberland Hospital.

Mr Singh’s son, as is often the case, involving children with disabilities, had a particularly close and loving relationship with his parents and in particular his father. Much of Mr Singh’s time was spent not only trying to cope with conducting a legal practice with limited financial resources but also caring for his significantly disabled son. Apart from his son, Mr Singh’s wife also had a history of quite significant illness and required ongoing medical treatment.

Mr Singh submitted to Mara a statutory declaration dated 30 November 2001 in connection with his Application for Registration as a Migration Agent. In that declaration Mr Singh said that he had not given immigration assistance while not registered other than that which he had declared in the statement.

Mr Singh admitted various grounds in the application by the Law Society and they made findings that Mr Singh was guilty of professional misconduct. The Tribunal noted that Mr Singh had asserted that it was not his intention to mislead MARA and that he was extremely sorry for what had occurred.

Mr Singh relied upon evidence of Dr Olav Nielssen who diagnosed him as suffering from a depressive illness, such diagnosis being dependent upon the history as provided by Mr Singh. Dr Nielssen also relied upon other medical evidence including that of a Dr Wadhera.

The Law Society of New South Wales maintained that the conduct of Mr Singh was such that his name should be removed from the Role of Legal Practitioners. Mr Walsh disputed this approach and submitted that having regard to all of the circumstances of the case the protection of the public does not require that Mr. Singh be struck off the Role. Greg Walsh took the Tribunal to a number of authorities which have been referred to in the judgment such as Law Society of New South Wales v McElvenny [2002] NSWADT 166; Ziems v The Prothonatory of Supreme Court of New South Wales (1967) 97 HCR 279; Fraser v Council of the Law Society of New South Wales (1992) NSWLST 6; Re: Demetrios [1993] LPDR; Law Society of New South Wales v Walsh (unreported decision December 1987).

The Tribunal publicly reprimanded Mr Singh and required him to provide undertakings in respect of Course in Practice Management and Ethics and fined him $2,000.

Luke Jarvie v R (19 November 2009, Unreported per Blanch DCJ) NSWDC

In this matter Greg Walsh acted for Luke Anthony Jarvie who had been charged with the offences of hinder police; resist arrest and assault police arising from an incident at The Rocks on the evening of 26 July 2008.

Luke Jarvie was then aged 19 years and had attended a function at the Rocks with his friends. He had left the function and had walked in an easterly direction towards Argyle and George Streets, Sydney. He was not aware that approximately 400 metres away, another member of the public had been observed by patrolling police, Senior Constables Buxton and Patton, throwing a witches hat from one side of Argyle Street to the other.

Senior Constables Patton and Buxton exited their police vehicles and gave chase to the ‘thrower’. At about 11.40pm on a Saturday evening there are many members of the public upon Argyle Street, however both Patton and Buxton ran at full pace seeking to apprehend the ‘cone thrower’.

At the intersection of Argyle and George Streets, Mr Jarvie heard a noise and turned towards the noise and came into collision with the officers, firstly with Senior Constable Patton. Mr Jarvie instinctively put his hands up and Senior Constable Buxton who was only a few metres behind Patton interpreted Mr Jarvie’s actions as leaping towards Senior Constable Patton and shoulder barging him causing him to lose his balance.

According to Senior Constable Buxton, there was only a second or two between the initial contact between Patton and Jarvie and then Buxton who crash tackled Luke Jarvie front on causing his head to impact severely with the footpath. As a result of the impact Mr Jarvie lost consciousness and was convulsing. Patton and Buxton physically restrained Mr Jarvie. An off duty nurse and other witnesses called for police to take the handcuffs off Mr Jarvie and eventually they did so. The bystanding nurse then gave emergency treatment to Mr Jarvie and he was conveyed by ambulance to Sydney Hospital.

Approximately two weeks after the incident, Luke Jarvie was charged with the offences above. Mr Walsh took steps to investigate the matter including an immediate subpoena to obtain the security footage of the incident as it took place under a CCTV tower opposite the Rocks Police Station. According to the City of Sydney who is responsible for maintaining the tower, no such footage existed. There were however a number of eye-witnesses to the incident.

The matter was fixed for hearing before Magistrate Culver at the Downing Centre Local Court.

The prosecution case was that Luke Jarvie had leaped at Constable Patton and for some reason he and Constable Buxton believed that Jarvie had an object in his hand and that Buxton crash tackled him because of that purported fear. Senior Constable Patton gave evidence that after the initial contact with him and Jarvie, he removed his service weapon and pointed it at Jarvie telling him to get to the ground. He agreed that a period of time between his initial contact and that of Buxton was relatively short, He agreed that he did not say to Jarvie “Drop it!” in relation to the object allegedly in his hand.

In respect of the resist, Patton contended that despite Mr Jarvie convulsing he didn’t put his hands between his back as quickly as he should of and further that he didn’t get to the ground when he did so.

In cross-examination, Patton agreed that Mr Jarvie had absolutely nothing to do with the ‘cone-throwing’ incident and further, that Mr Jarvie had no actual object in his hand. The officer further could not explain as to why, if he believed Jarvie had an object in his hand, he didn’t ask Jarvie to drop it. The officer did mention to Buxton after Jarvie’s friends commented that he had a pre-existing head injury that he ‘thought he had a gun’. Senior Constable Patton maintained that he could not have used any alternative forms of law enforcement such as the baton because he regarded the situation as so serious that it was ‘life-threatening’. Patton was shown a photograph taken by a witness of Mr Jarvie’s facial/head injury and the Constable said that this had been deliberately affected by Mr Jarvie.

Buxton gave evidence that at no stage did he see Patton produce his firearm and not say anything to Mr Jarvie about getting to the ground. He gave a different description of how Mr Jarvie and Senior Constable Patton came into contact which was in conformity of the evidence of not only Mr Jarvie but also the eye witnesses.

Indeed, as was observed by the learned Chief Judge of the District Court:

“One unusual aspect of the police officers evidence is that Senior Constable Buxton did not see Senior Constable Patton draw his gun. In fact nobody else who gave evidence saw Senior Constable Patton draw his gun.”

Senior Constable Buxton also agreed that Mr Jarvie was convulsing and that the facial/head injury could have been occasioned by way of the contact as a result of the tackle. He also agreed that there was some mention by Patton of Mr Jarvie possibly having a gun but of course that did not make its way into the police statement. Buxton also agreed that he made his statement after reading Patton’s statement some months after the incident.

Mr Jarvie gave evidence as did a number of eye witnesses. Mr Jarvie was emphatic that the initial contact between him and Constable Patton was an accident so far as he was concerned. He had instinctively turned towards the noise he had heard and had braced for impact and then after the impact put his hands up instinctively. He had nothing in his hands. He certainly did not have any gun and indeed at all material times Mr Jarvie has been a person of outstanding good character. In a split second he was hit by Buxton and he could not recall anything about that until he work up in the emergency section of the hospital.

A number of eye witnesses gave evidence supporting Mr Jarvie’s evidence. These witnesses included a law student and a student of architecture. The identity of the nurse, despite extensive investigations, was never ascertained however neither Patton or Buxton recorded her details at the scene.

In cross-examination of Mr Jarvie, it was never suggested that he had any object in his hand, nor that he was involved in any cone throwing incident, nor that Patton pulled out his service revolver, nor told him to get to the ground. In respect of the resist, the police prosecutor could not even suggest that Mr Jarvie was conscious at the time after his head hit the ground as clearly on any view he was convulsing.

It was submitted to Magistrate Culver that the prosecution had not made out its case beyond reasonable doubt. Indeed it was an overwhelmingly strong defence case in which the Court had before it a young man of outstanding good character who had given clear evidence that he had not assaulted, hindered or resisted the police at all. Indeed, quite unusually, Senior Constable Buxton’s evidence supported the evidence of Mr Jarvie as did that of the eye-witnesses.

It was submitted that the initial contact between Mr Jarvie and Patton was entirely the fault of the police officer. It could not be suggested that an initial contact amounted to an assault and indeed for the conduct of the police running at full pace on a very busy place such as the Rocks on a Saturday night gave rise, in objective terms, to a real risk of impact with any member of the public. According to Patton, the members of the public parted ‘as if it was the red sea’.

Mr Walsh submitted to the Magistrate that there could not be an assault if the incident is one over which the accused had no control. The evidence of Patton that somehow Mr Jarvie has leaped 2-3 metres to the left causing initial contact was not supported by any other evidence including that of Constable Buxton. Significantly, the prosecutor had not put the critical aspects of the prosecution case to Mr Jarvie.

At the end of the day, what Mr Jarvie had done in turning towards the noise that he heard and bracing himself could not in any view amount to an assault. Indeed, what he had done was no more than to entirely appropriately defend himself. For instance, the risk of impact with another elderly member of the public, or for that matter a young person, was obvious. It was contended to Magistrate Culver that Patton’s conduct in running at full pace and colliding with Mr Jarvie of itself may have been unlawful as his conduct may well have amounted to an assault in the context of occurring recklessly when he should of foreseen the likelihood of inflicting fear or injury and ignored the risk, Vallence v R (1961) 108 CLR 56.

Magistrate Culver rejected all of the submissions by Mr Walsh and was comfortably satisfied that Mr Jarvie was guilty of each of the offences. The Magistrate considered that the inconsistencies between Patton and Buxton rebutted any suggestion of Mr Walsh’s conspiracy theory. The Magistrate essentially made findings rejecting the evidence of Mr Jarvie and each of the witnesses and accepted that Mr Jarvie had leaped 2-3 metres to the left and shoulder barged Patton who then drew his weapon and told Mr Jarvie to get to the ground, and that because Mr Jarvie did not get to the ground when asked to do so, Buxton physically took him to the ground as a matter of necessity because of the officers fear for their safety.

Magistrate Culver even found Mr Jarvie guilty of the resist arrest despite the overwhelming evidence that he had suffered a very severe head injury consistent with the contemporaneous photographs and rejected any suggestion that he had no volition or control over his acts.

Magistrate Culver rejected Mr Walsh’s contentions that critical elements of the prosecution case were not put to Mr Jarvie and that she found that there was no obligation on the part of the prosecutor to put such essential matters.

Magistrate Culver adjourned the matter for sentence and was initially considering imposing a full-time jail sentence on Mr Jarvie. In this regard, Mr Jarvie in 2006 had suffered a head injury in which he sustained a fractured skull and had been left with ongoing disabilities. His head had made contact with the footpath as a result of being tackled by Buxton, being the same side as the original injury 2 years earlier.

Luke Jarvie had been a member of the Life Saving movement since he was 6 years old and had received many awards as a dedicated life saver. He was also an extremely talented sports person and relied upon a testimonial of his rugby coach who was the Deputy Commissioner of Police in NSW. That person indicated to Magistrate Culver that he had observed Luke to be targeted by opposition players repeatedly over a decade because of his talent as a footballer, and he had never once retaliated on any occasion. His observations of Luke Jarvie was of outstanding good character and that he was contributed much to the community and was an outstanding sportsman. It was a tragedy that as a result of his head injury, he was unable to undertake a course of engineering at university.

Magistrate Culver placed Mr Jarvie on two year good behaviour bond. He appealed to the District Court and his matter was heard by Chief Judge Blanch on 19 November 2009. His Honour upheld the appeal and quashed each of the convictions. His Honour noted in particular that Mr Jarvie was a person of good character and that the way the circumstances had unfolded was more in keeping with Mr Jarvie’s evidence and that of his witnesses than that given by the police.