John Barbanera is the oldest son of Antonio Barbanera and Maria Barbanera. Antonio died on 3 1 October 2014 and Maria November 2009.
John has three younger siblings Nunzia, Peter and Angela. Angela died in April 2015 and is survived by her husband Nick and their only child Giuliana.
John was excluded from his father’s will and he brought proceedings under the succession act for provision out of his late father’s estate, Greg Walsh acted on his behalf.
The hearing was heard and determined by His Honour Justice Slattery of the Supreme Court NSW Sydney.
His Honour heard evidence over two days, 12 and 13 December 2016. There is no doubting, that the proceedings were bound to involve a recounting of difficult emotional issues involving the lives of John and his siblings.
John over many years was an extremely hard worker and quite successful businessman. He was married to Pina and they have two children.
His Honour has set out in detail in his judgement the history of home life in the family home in Haberfield between 1976 to 1991.
His Honour observed that John as the first born in the family regarded himself as having a solemn duty and entitlement and as such this caused him to be regarded “the role is giving him authority to control the personal lives of his sibling’s particular of his sisters”. His Honour details a number of life events which had significantly impacted upon John and his siblings over so many years.
John’s late father attached a statutory declaration his will dated 23 April 2008. His Honour referred to the contents of that Statutory Declaration and judgement.
His honour referred to other events including visits to his late mother before her death in 2009 and what occurred at his mother’s funeral in November 2009.
Justice Slattery noted the deletion of any reference to John from Maria’s funeral documents and made a finding that he did not accept that there was any reasonable basis for Peter and Nancy to fear what John might do at his mother’s funeral.
At his father’s funeral once again there was no mention of John and this clearly the impact of public humiliation to John His Honour made reference to the back cover of the mass book for his late father’s funeral omitting to making reference to John. The exclusion of John was noted by His Honour as follows:
“caro ed amato marito della defunta Maria, adorato padre e suoero di Angela e Nick Bouyioukos, Nancy e Antonio Brunetti, Peter e Maryanna Barbanera, orgoglioso nono di Giuliana, Antonia, Leonardo, Donatella, Dante. …”
Justice Slattery set out the applicable legal principals in particular that of Singer v Berghouse (No.2) (1994) 181 CLR 201. His Honour then examined in detail John’s financial and personal position. His net position was $5076502.00.
His Honour also referred in detail to the financial position to John’s siblings and the health problems of Angela’s husband.
His Honour made a finding that John’s summons should be dismissed subject to further argument as to what costs orders are conveyed.
SMH – Warring children ignore judge’s warning about fight over father’s will
Adam Filippone was charged with murder and being accessory after the fact of murder arising from the death of Peter Murphy on Sunday 17 August 2008.
Greg Walsh represented Adam Filippone in the successfully defence of these charges which were heard over five (5) weeks in a trial conducted in the Supreme Court of the Northern Territory at Alice Springs. The trial was presided over by Justice Blokland and a Jury.
The charges against Adam Filippone had an extraordinary history as he had been, years earlier, cleared at a committal hearing conducted in Darwin. Police were successful in obtaining a coronial inquest and in 2013 Adam Filippone was charged with murder of being accessory after the fact by x-officio indictment. The killer of Peter Murphy was Greg Russell, an acquaintance of Adam Filippone, who worked as a tiler together with his wife Donna in Alice Springs and various other places in the Northern Territory. The Crown theory was that Adam Filippone, because of his closeness of his relationship to Greg Russell, was involved in the killing or otherwise assisted him after the killing.
On the day of the disappearance ofPeter Murphy, Adam Filippone was working at the Target Plaza redevelopment at Alice Springs as a tiler. He started work around 7:30am and was still at the plaza until about 5:30pm to 6:00pm. The Crown’s theory was that Greg Russell and the Accused had met Peter Murphy sometime just after 1:00pm and had driven him from Alice Springs approximately 95kms away to the Plenty Highway where he was assaulted, killed and then buried. They then returned to Alice Springs arriving at about 3:12pm. If the Accused’s alibi was correct he could not have been present when Peter Murphy was murdered.
In order to obtain evidence against Mr Filippone a Senior Police Officer, Detective Sergeant
Richardson, went to extraordinary lengths to co-opt on Wendy Hassett, the then partner of
Greg Russell, to make admissions not only against himself but also against Adam “Wog” Filippone. Wendy Hassett who had been actively involved in cleaning a gun that may have been used in the murder at the direction of Greg Russell together with his daughter Gemma Beattie had been alerted to reward money being available by Richardson. In lengthy conversations, none of which were recorded or a note made, Richardson played a central role in influencing Hassett to purchase a recorder and then record a dying declaration of Greg Supreme Court ofthe Northern Territory
Russell. He drew a map identiWing the approximate burial site and in what could only be termed and orchestrated conversation implicated Adam Filippone being present. The next morning when Hassett left their house Russell took his own life in the garage. Hassett returned home with her mother in the car and ran over Russell’s body.
The Crown case relied upon a “Motley” of witnesses including the estranged wife of Peter Murphy, one Tamara Murphy. She had secreted a gun for Greg Russell who had lived at her house for some time. She did so even though she had children in the house. She gave to Greg Russell the gun on the morning of 17 August 2008. She had spoken to Greg Russell about her estranged husband including discussions with him involving his death.
Tamara Murphy had actively encouraged Greg Russell yet was never charged with any criminal offence. Her evidence was severely undermined in a withering cross examination by Phillip Boulten SC with whom Greg Walsh appeared in the trial. She, like many of the Crown witnesses, were utterly destroyed in cross examination and in particular as to her motives against her estranged husband Peter Murphy. There was no doubting that she had a romantic interest in Greg Russell and even denied a photograph which clearly showed her on the bonnet of Greg Russell’s car pleading with him not to leave her home during her birthday party and her ‘undying’ love for him.
A critical part of the Crown case was the reliance of the Crown upon tower telephone records. According to the Crown Prosecutor, David Morters, these demonstrated conclusively that the Accused was not working at the plaza site on the afternoon of 17 August 2008. However experts called by the Crown conceded that this was a real possibility that having regard to the configuration of the towers at Alice Springs, mobile phone calls could be received which could not conclusively establish where the call had emanated from. This fact was always known to investigating Police and the Crown Prosecutor. Remarkably, investigating Police did not seek to obtain critical phone tower records relating to Peter Murphy’s phone nor other witnesses who were working with Adam Filippone on the 17th of August 2008. These records were in existence up until approximately 2015 and despite the investigations being ongoing for many years, Police conveniently took no steps to obtain these vital records.
Adam Filippone’s wife Donna gave evidence. The Jury deliberated after lengthy directions by Justice Blokland and after approximately a day and a half returned their verdicts of not guilty as to each of the charges.
NTNews – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court
News.com – Adam Filippone found not guilty of murder of Peter Wayne Murphy in Alice Springs Supreme Court
In this matter Greg Walsh acted for the Appellant who was unsuccessful in Appeal arising from a decision of a District Court Judge to dismiss his claim for damages arising from injuries sustained in an organised billy-cart race on a roadway at Revesby.
The Appellant was watching from the side of the road. The billy-cart race was organised as a charity event and the issue on Appeal as at Trial was liability, namely determining who it was that had organised and controlled the event.
Held: per Stein JA (Mason P and Rolfe AJA agreeing):
1. The trial judge’s conclusion that the first respondent did not organise or control the event was open and consistent with the evidence.
2. It was open to the trial judge to find that the appellant had not established the second respondent was in control of or organised the billy cart race.
3. The trial judge’s finding that the third respondent did not organise or control the 1998 race was open and supported by evidence.
4. The finding that the appellant’s accident was not foreseeable was available on the evidence.
Per Mason P:
1. The failure to erect barriers that would have protected the class of spectators including the Appellant did not indicate a breach of the duty to exercise reasonable care with respect to the safety of spectators and competitors.
In this matter Greg Walsh acted for the defendant, Thomas Knowles, in Supreme Court Proceedings in which the Plaintiff, Ms Herrick, seeks damage from Trustees from Thomas Knowles and the Provincial of the Blessed Sacrament Congregation.
The Plaintiff had issued a Subpoena addressed to Dr Sharon McCullum who had been treating Mr Knowles. A Notice of Motion was filed seeking order that the Plaintiff not be permitted access to any material being produced in response to the Subpoena issued to Dr McCallum.
On 5 September 2014, Harrison AsJ made an order that the Plaintiff was refused access to the report of Dr McCallum dated 9 November 2011. See Herrick v Knowles [2014] NSWSC 1223.
An application was made for costs under S. 98 Civil Procedure Act 2005.
s.98 of the CPA gives the Court a broad direction to award costs , including ordering a party to proceed against the pay of the cost of the non-party. See Pan Pharmaceuticals Ltd; Selim v McGrath [2004] NSWSC 129 per Barrett J at 16; Petrovski V Radin [2002] NSWSC 323 per Sperling J [14] [16]; O’Keith V Hayes Knight GTO Pty Ltd [2005] NSWFCA 1559 Nicholson J [24].
Harrison AsJ ordered the Plaintiff to pay Dr McCallum’s costs.
Alex Simmons sustained serious injuries as a result of an accident that occurred on 11 April 2007 whilst he was riding his bicycle through a car park adjacent to the St George Sailing Club. He struck a boom gate that had been closed across a motor vehicle entrance to a car park. The accident resulted in a below knee amputation of his left leg.
On 27 September 2013 Hall J delivered the principle judgment in the proceedings Simmons v Rockdale City Council [2013] NSWSC 1431. An order was made that verdict and judgment be entered in favour of Alex Simmons against Rockdale Council in the sum of $928,000 and that judgment be in favour of the Club.
Mr Campbell SC and Mr Sheller appeared on behalf of Alex Simmons and Mr Watson SC appeared on behalf of the Council. A dispute arose between the parties as to whether the Plaintiff was liable to pay the Club’s costs and if so should they be awarded on an indemnity basis from the date of the Club’s offer of compromise or whether Mr Simmons was entitled to a Bullock or Sanderson order in respect of his costs liability to the Club.
Liability to pay the Club’s cost on an indemnity basis
His Honour observed that an offer of compromise must be a real and genuine offer Regency Media Pty Ltd v AAV Australia Pty Ltd [2009] NSWCA 368.
On behalf of Mr Simmons it was submitted the Club’s offer was “an invitation to surrender” and His Honour particularised the basis of that submission.
Bullock or Sanderson Order
In the event that Mr Simmons was found liable to pay the costs of the Club he should be entitled to a Bullock or Sanderson Order from the Council. The arguments of the Plaintiff were referred to by his Honour [para 16].
Council’s Submissions
The Council accepted that it is liable for the costs of both the Plaintiff and the Club. It however opposed the Bullock or Sanderson Order and the basis of this was referred to by His Honour [para 21]
Reasonableness of not accepting the Offer of Compromise
Hall J observed that the reasonableness of the party refusing an offer amounts to an important feature in determining whether an order for indemnity costs should be made. The reasonableness must be assessed as at the date of the offer and without the benefit of hindsight: Barakat v Bazdarova [20102] NSWCA 140.
His Honour made a finding that given the lack of clarity on the material available to the Plaintiff as to the arrangement between the Council and the Club, he did not consider the Plaintiff’s failure to accept the Offer of Compromise can be regarded as unreasonable [para 63].
Absence of Information to Support the Club’s offer requiring capitulation by the Plaintiff
His Honour found that he did not consider the Plaintiff had acted unreasonably in not accepting the Club’s Offer of Compromise. See Leichhardt Municipal Council v Green [2004] NSWCA 341.
Whether a Bullock or Sanderson Order should be made
His Honour referred to Gould v Vaggelas (1985) 157 CLR 215. His Honour made a finding that it was reasonable for the Plaintiff to have sued the Club [para 79].
The conduct of the unsuccessful defendant, the Council
His Honour referred to an Affidavit sworn by Greg Walsh on 21 November 2013 which relied upon his earlier Affidavit of 26 October 2010. Walsh referred to evidentiary statements of James Garcia a cleaner that had been employed as a contractor by the Club and also a statement of the General Manager of the Club Keith Langelaar. Mr Walsh stated that none of those statements mentioned what he refers to as “any rationale about when and why the gate was to be open.” [para 92].
His Honour noted that Mr Walsh stated in his Affidavit to his state of belief that it was possible that the Club was instructed in a manner that constituted a more formal delegation as to why the gates needed to be opened and closed at certain times and that it embraced that responsibility. As such there was a real issue as to whether the Council had effectively delegated to the Club the opening and closing of the boom gate. Mr Walsh referred to Mr Lay’s evidence. [paras 91-98].
His Honour ultimately was not satisfied that in the circumstances and at his discretion a Bullock or Sanderson Order ought to be made against the Club.
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 [2004] 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.
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:
Total $725,000.
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.