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:
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.
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:
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.
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.
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.
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.
On Wednesday, 25 February 2004, two sheriff’s officers, Mr Davies and Ms Lomas entered the home of Mr and Mrs Wilson at Leonay with a property seizure order relating to unpaid traffic fines owed by Mr Wilson to the State. A conversation occurred between the officers and the Wilsons through a screen door and then an incident occurred in which the Wilsons alleged that Officer Davies assaulted Mr Wilson by kicking the screen door into his face and the Sheriff’s officers failed to leave the premises notwithstanding a clear instruction by Mr Wilson to go. The Sheriff’s officers claimed that Mr Wilson charged out the door and assaulted Officer Davies who then placed Mr Wilson under arrest. Mr Wilson then locked himself inside of the house and the officers left the premises.
The officers went to the street where the police were called. They observed Mr Wilson to emerge from the house and get into his car in the driveway. Officer Davies entered the premises onto the driveway and removed the keys from the car. A physical altercation occurred between the two men during which Officer Lomas came onto the premises and sprayed Mr Wilson with capsicum spray. There was conflict as to what occurred. The Sheriff’s officers claimed that after Officer Davies took the car keys Mr Wilson punched him and then got out and launched a sustained attack on him against which he was forced to defend himself. Mr Wilson claims that he only used such force by way of response as was reasonably required in the circumstances.
Police Officers, sheriff officers and ambulance officers then arrived. Officer Davies and Mr Wilson were taken to hospital in separate ambulances. The sheriff’s officers went into the house and seized and took away certain goods pursuant to the Property Seizure Order. Mrs Wilson claimed that these officers entered the house without her permission.
On Thursday 26 February 2004, Mrs Wilson paid the outstanding traffic fines but was unsuccessful in her attempt to recover the goods from the Sheriff’s Department.
Two days later on Saturday 28 February 2004 Mr and Mrs Wilson attended at the Penrith Police Station where Senior Constable Janovsky and another police officer interviewed Mr Wilson by way of an ERISP. Mr Wilson claimed that soon after his arrival at the station he was arrested and detained in custody for 4 hours and 20 minutes.
Three weeks later, Senior Constable Janovsky instituted criminal charges against Mr Wilson alleging that he assaulted Officer Davies on 25 February 2004. Janovsky pursued and maintained the prosecution notwithstanding a letter from Mr Wilson’s solicitors dated 9 September 2004 seeking withdrawal of the charges. The charges were ultimately heard in the Local Court but were dismissed on 9 November 2004.
Mr Wilson claimed substantial damages including exemplary and punitive damages.
The issue of trespass on initial entry
Judge Johnstone considered the well known authorities of Halliday v Neville (1984) 155 CLR 1 at 6-9 and Lipman v Clendinnen (1932) 46 CLR 550 at 557-8. The defendant’s case was that the Sheriff’s officers had lawfully entered the premises pursuant to a licence implied by law. The plaintiff’s case was that if the permission or licence to enter premises was withdrawn and the entrant then remains on the premises for an unreasonable time, the entry becomes a trespasser: Cowell v Rosehill Race Course Co Ltd (1937) 56 CLR 605.
Johnstone DCJ held that the licence pursuant to which the officers were on the verandah was never withdrawn. Mrs Wilson did not ask the officer’s to leave and at no stage did Mr Wilson identify himself as someone with the apparent authority to revoke the licence. His Honour was comfortably satisfied that Mr Wilson’s immediate and sudden attack left the officer’s no time to withdraw and as such, the Sheriff’s officers did not commit a trespass.
The issue of estoppel
The plaintiff contended that the defendant was estopped from denying that Officers Davies and Lomas were trespassing during the initial entry. This arose from the initial finding by the Magistrate against the plaintiff to the effect that Davies and Lomas were trespassers from the moment they entered the premises.
Johnstone DCJ found that the parties in both sets of proceedings were not identical. His Honour found that there were no allegations in respect of the cause of action against the Crown and the right of the State of New South Wales arising from the actions of Officers Davies and Lomas. Further, that the doctrine of issue estoppel is not applicable to criminal proceedings: R v Storey [1978] HCA 42 at 39; Rogers v The Queen [1994] HCA 42 at 1.
Did Officer Davies assault Mr Wilson during the initial entry?
His Honour was comfortably satisfied that Mr Wilson assaulted Officer Davies in a manner totally disproportionate to the circumstances that arose and as a result of which Officer Davies was entitled to arrest Mr Wilson immediately after the offence.
The second entry by Davies and Lomas
His Honour found that whilst waiting at the car for the arrival of the police, Davies and Lomas saw the plaintiff exiting the front door of the house and proceed down the outside stairs to a BMW car in the lower driveway. Davies called out “Sir, stay where you are you’re under arrest. The Police are on their way.” The plaintiff however proceeded to the car, got in the driver’s seat, placed the keys in the ignition and started the engine. Davies went up to the driver’s door and said, “Stop.” The plaintiff replied “Fuck you”. Davies reached into the car, grabbed the keys, turned the motor off and pulled the keys out and placed them in his pocket. He told the plaintiff that he was under arrest. At this stage, the plaintiff punched Davies in the chest striking him on the left side and knocking him off balance. Lomas moved out of the driveway and moved towards him. She observed the plaintiff to emerge from the car and scream “I’m not under fucking arrest”. Davies moved towards the rear of the car whereupon the plaintiff charged him and punched him on the left cheek, his head jerked back and his upper body turned to the left but he did not fall over. The plaintiff then struck him with a series of further punches to the head and body. Davies managed to grab the plaintiff’s arms and smother his punches and the two struggles for several minutes. Davies punched the plaintiff on the chin and pushed him to the side of the car. The plaintiff kept struggling and trying to punch Davies. Lomas got out her OC spray and sprayed the plaintiff.
Johnstone DCJ found that the second entry by Davies onto the driveway did not constitute a trespass.
The defendant’s contention that Davies and Lomas were entitled to re-enter the land and seize the car keys to prevent the plaintiff from driving onto a public road relied upon the High Court decision of Gorrin v Nugent [1988] HCA 59 per Brennan J at 16. This contention was upheld by Johnstone DCJ.
Did Davies assault the plaintiff during the second entry?
His Honour found that the plaintiff was wrongfully detained and falsely imprisoned when Davies removed the keys from the car. However, that detention was limited to the plaintiff’s driving of the car. That detention was of an extremely short duration until Davies punched the plaintiff, being an excessive response totally disproportionate to the removal of the keys when he arrested Mr Wilson in the car.
Did Davies wrongfully arrest the Plaintiff during the second entry?
Johnstone DCJ found that the Plaintiff’s response was unreasonable and totally disproportionate in the circumstances. He was under no physical threat; his personal safety was not threatened. The plaintiff did not even get out of the car before he punched Davies. His Honour found that the response of the plaintiff justified Davies in defending himself. Thus, the arrest of the Plaintiff during the second entry was not wrongful.
The seizure of the plaintiff’s goods
Johnstone DCJ found that the goods were not wrongfully detained by the Sheriff for the period from 26 February 2004 to 16 March 2004. See Graham Barclay Oysters Pty Ltd v Ryan [2002] HCA 54. His Honour found that neither the plaintiff nor his wife revoked the original licence. The other Sheriff’s officers who entered the property were entitled to go onto the plaintiff’s property for the legitimate purpose of executions of a Property Seizure Order and to make enquiries of the plaintiff’s wife. This was particularly so when the plaintiff denied ownership of the contents of the house.
Events at Penrith Police Station
Johnstone DCJ found that Senior Constable Janovsky did not wrongfully arrest the plaintiff at Penrith Police Station on the evening of Saturday 28 February 2004. His Honour found that the Custody Management Record was a totally unreliable record. His Honour found that the plaintiff attended the Penrith Police Station of his own free will. He was never told he was under arrest. In this regard, the lawyers who drafted the original defence admitted the arrest. Johnstone DCJ allowed the admission to be withdrawn.
Johnstone DCJ came to the view that the Custody Management Record was a totally unreliable record.
His Honour despite the use of the word “arrest” as used by Inspector Bisset when questioning Senior Constable Janovsky to that of Inspector Bisset.
Did Senior Constable Janovsky prosecute Mr Wilson maliciously?
Johnstone DCJ considered A v New South Wales [2007] HCA 10 and Hathaway v State of New South Wales [2009] NSWSC 116.
Johnstone DCJ referred to the state of mind of Senior Constable Janovsky that he Janovsky preferred the version of the Sheriff’s officers than that of the plaintiff. As such, his Honour found that Janovsky formed the honest belief that the officers were lawfully upon the premises and, as such, justifying the prosecution. His Honour rejected the proposition that the proceedings were instigated for the improper purpose of satisfying the will of the Sheriff’s office. Also, his Honour rejected the proposition that the proceedings were instituted to discourage the plaintiff from bringing proceedings against him or the Sheriff’s officers.
Did Officers Davies and Lomas maliciously prosecute Mr Wilson?
Johnstone DCJ found that Davies and Lomas did not maliciously prosecute the Plaintiff as neither Davies nor Lomas were prosecutors.
Section 52 and 54 Civil Liability Act 2002 (NSW)
The defendant relied upon the provisions of ss. 52 and 54 of the Civil Liability Act. The defendant relied upon the plaintiff’s “aggressive, excessive and violent” conduct in response to Officers Davies and Lomas.
The plaintiff contended that these sections have no application because the defendant failed to satisfy the Court that any act of physical force employed by the plaintiff to which Davies and Lomas were responding at any time constituted an action for assault, were more than a necessary consequence of their own condition and behaviour.
Johnstone DCJ found that the defendant was entitled to protection provided for in s52 in respect of the allegations of assault and battery in the plaintiff’s second further amended statement of claim.
Disposition
The matter was adjourned for written submissions in light of his Honour’s findings and in particular as to s54, damages and costs.
On 31 July 2009 Judge Johnstone of the District Court delivered reasons for judgment as to damages arising from his Honour’s judgment on liability handed down 30 April 2009.
His Honour at [24] found that the Plaintiff had not proven any psychological condition suffered by him was caused or materially contributed to by any torturous conduct for which the defendant was responsible.
As such, his Honour made no award of damages to the plaintiff by way of compensation for any injury, loss or damage including any special damages, any damages for loss of earning capacity and any damages for pain and suffering or loss of enjoyment of life in respect of any physical or psychological consequences of the torturous conduct which his Honour found occurred.
His Honour then considered s.54 of the Civil Liability Act upon which the Defendant relied in answer to the whole of the Plaintiff’s claim.
His Honour observed that s.54 of the Act does not concern the liability of the defendant but is directed against an award of damages rather than the existence of a liability. It is for the defendant to establish the matters in the sub paragraphs of s.54(1). Evidential Security Services of Australia v Brilley [2008] NSWCA 204 at [124].
His Honour found at [31] that the evidence was insufficient for the Court to be satisfied what matters materially contributed to the plaintiff’s injury or damage let alone that his conduct did so, and if so, what the conduct was, when it occurred and whether it constituted a serious offence. See Fangak v Baxter [2000] NSWCA 264 at [84].
Ex-turpi causa non actio
The defendant contended that the plaintiff was disentitled for recovery of any damages by reasonable operation of the principle of ex-turpi causa non actio, such that his own lawful conduct precludes recovery. This contention relied upon a number of findings of His Honour as to liability.
His Honour observed that the principle of ex-turpi causa non actio was never pleaded. The defendant contended that it was not required to plead reliance upon the principle. His Honour observed that whether or not it should have been pleaded, clearly the plaintiff could not complain that he was taken by surprise.
His Honour observed at [35] it could not have been an intentional parliament to replace the common law principles in the area and as such s.54 of the Civil Liability Act did not replace the doctrine.
The defendant relied upon the assault of Officer Davies by the plaintiff on his verandah and his subsequent resistance and avoidance of the attempted arrest by Officer Davies in giving rise to the precise conduct relied upon. That is the only unlawful conduct on the plaintiff’s part that preceded the torturous conduct of Officer Davies in the second entry onto the plaintiff’s premises.
His Honour at [40] found that the conduct of the plaintiff on the verandah was sufficiently serious or sufficiently proximate to the torturous conduct of Officer Davies in the driveway to preclude the recovery of damages.
His Honour awarded the plaintiff general damages of $15,000. His Honour also awarded the Defendant to pay the Plaintiff’s costs on an indemnity basis.
At 7.15am on 22 November 2006 Iktimal Hage-Ali was arrested at her family home at Punchbowl. She was then 22 years of age. She was arrested allegedly on suspicion of supplying cocaine.
She was transported to Bankstown Police Station where she arrived at approximately 7.35am. She was interviewed from 9.00am onwards. She was released at 10.39am and was not charged.
Ms Hage-Ali asserted that her arrest was unlawful and her subsequent imprisonment false. If the arrest was unlawful, it followed that the imprisonment was false. The basis of the assertion of the unlawfulness of the arrest was that it was non-compliant with the mandatory requirements of s.99 Law Enforcement (Powers & Responsibility) Act, 2001 (NSW).
Ms Hage-Ali asserted that the events surrounding her arrest and detention represented aggravating circumstances of the wrongful arrest and false imprisonment. She claimed compensatory (including aggravated) and exemplary damages arising from her arrest and imprisonment. She was successful in receiving an award of damages of $18,705 on 14 October 2009 after an 18 day trial.
In the period between August/November 2006 Ms Hage Ali purchased or received on credit small amounts of cocaine (either 0.5 or 1 gram) from Mr B. Her purchases in the period were recorded by telephone intercepts undertaken by police on the mobile phone of Mr B. These intercepts were obtained during the course of the operation of Strike Force Kirban which was established in July 2006 within the Middle Eastern Organised Crime Squad. The principal police officers working with the strike force were Detective Sergeant Patton and Detectives Phillips and Dale.
The strike force simultaneously arrested and executed search warrants on three persons, Mr B, Mr K and Mr D. Ms Hage-Ali was arrested at the same time without a warrant. An authorised officer declined to issue two search warrants including one in respect of Ms Hage-Ali.
The practices of Detective Phillips led to the unfounded assertion in the search warrant application for Ms Hage-Ali and the association between her and an unlicensed firearm. The State accepted that this was an error derived from the cutting and pasting of the same contents between the search warrants.
Between 6.00am and 7.00am on 27 November 2006, a meeting took place involving the participation of a large number of police officers charged with the responsibility of executing search warrants, arresting persons of interest and other associated tasks connected to the operational orders. Inspector Patton was the only person to address the meeting. He stated that all persons of interest were to be arrested.
Detective Phillips believed that the order had not been made that persons were to be arrested, the proposed arresting officers would proceed to do so rather than applying their own mind as to whether they should do so. Detective Dale and Sergeant Dyson followed what was a direction to arrest by Detective Patton.
Four police officers attended Hage-Ali’s residence. She was asleep when the officers arrived and she was arrested. She was transported to Bankstown Police Station. She was met by Inspector Patton and Detective Phillips at around 7.45am. Inspector Patton made a large number of phone calls before the commencement of the voluntary interview with her at 9.00am. Various discussions were had between the officers and Ms Hage-Ali including about her pending employment with the Attorney-General’s Department.
A recorded interview took place which lasted one hour in which Ms Hage-Ali participated with Inspector Patton and Detective Phillips. No lawyer was present. Ms Hage-Ali admitted cocaine use but denied supply. Her denial was accepted and no charges were laid.
Ms Hage-Ali was released at 10.39am. She reported her arrest to her employer, the New South Wales Attorney-General’s Department. Ms Hage-Ali asserted that Inspector Patton had leaked her arrest based on some peculiar behaviour of his towards the end of the interview. This formed part of a sustained attack by Ms Hage-Ali on the credit of Inspector Patton.
Ms Hage-Ali saw Mr Talbot from the Deputy Director General of the NSW Attorney-General’s Department later in the day and detailed mistreatment at the hand of police whilst in detention. She left Australia on 17 December 2006 and has not returned to Australia to live.
Judgment on liability
The State bore the onus of proving the lawfulness of the arrest. Zaravinos v State of New South Wales; State of New South Wales & Anor v Zaravinos (2004) 62 NSWLR 58 at [12]. It was common ground that the State required factual findings in its favour to succeed in its defence by reference of the requirements set out in s.99(3) of LEPRA. The necessary factual findings for the State to succeed in its defence were that the two arresting officers, Detective Dale and Sergeant Dyson:
a) turned their mind to whether it was necessary to arrest Ms Hage-Ali;
b) had the requisite suspicion to justify the arrest for any of the reasons specified under s.99(3); and
c) whether the suspicion, if held at all, was based on reasonable grounds.
His Honour Judge Elkain SC did not make any of the necessary factual findings in favour of the State. The State failed to prove its case. He found that Detective Dale and Sergeant Dyson did not have the requisite suspicion as required by s.99(3) and if they did, any such suspicion was not reasonably held; judgment at paras [205],[206],[210] and [211]. The suspicion was not held because they did not turn their minds to whether they needed to arrest Ms Hage-Ali; judgment at [168(b)].
The appellant made three complaints about his Honour’s Murray direction to the jury. First, that a Murray direction should have also been given in respect of count 1. Secondly, that the failure to give a direction in respect of count 1 may have confused the jury, in circumstances where the Crown case depended almost entirely upon the evidence of the complainant. Thirdly, that his Honour erred in informing the jury that the direction was required at law, and not because of any view about the evidence held by the trial judge. Finally, the appellant submitted that the jury should have been directed that the relationship evidence needed to be proven beyond reasonable doubt.
In this matter Greg Walsh acted for Liljana Stanoevski, a solicitor, who was found by the appeal panel of the Administrative Decision’s Tribunal to have engaged in various significant acts of professional misconduct. See Stanoevski v Law Society of New South Wales ( No. 2) (LSD) 2004 NSW ADTAP 35.
Ms Stanoevski appealed to the Court of Appeal in respect of the decision of professional misconduct and the order removing her name from the Roll of Solicitors: Stanoevski v The Council of the Law Society of New South Wales (2005) NSWCA 428. The Court of Appeal held that there was no reason to set aside the findings of professional misconduct but the process by which the penalty had been arrived at contained a material procedural flaw. The orders were set aside and the matter referred to the Appeal panel. The Appeal panel reconsidered the question of penalty and once again, though by majority rather than unanimously, concluded that the appellant’s name should be removed from the roll: Stanoevski v The Council of the Law Society of New South Wales (ILSD) NSW ADTAP 25.
It was argued on behalf of Ms Stanoevski that the Appeal Panel had fallen into error in applying the incorrect test. Campbell JA at [39] with whom Hodgson JA and Handley AJA agreed observed that the Appeal Panel’s reference to restoring the appellant to the roll was erroneous as she was already on the roll. His Honour found that the Appeal Panel had not misapprehended its task or applied the wrong test in any way was material in its decision to making reference to both whether the appellant was a fit and proper person to hold a practising certificate and whether the appellant was a fit and proper person to be on the roll.
It was further contended that the onus was on the Law Society to establish that a person whose name was on the roll was not a fit and proper person to remain on it. In particular, that it was necessary for the Law Society to establish that the solicitor is “permanently unfit for practice.”
It was further contended that the Appeal Panel had reversed the onus, and improperly placed an onus on the applicant. Campbell JA from paragraph [52] onwards analysed the question of the onus of the proof. The Court of Appeal determined that the appeal panel permissibly shifted the evidential onus to the appellant which required that she, in circumstances where proven misconduct had been established in the period 1991 to 1993, produced evidence that gave reason for believing that the situation had changed.
Thus, the appeal was dismissed.
In this mater Greg Walsh appeared on behalf of the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against the sentence imposed upon him in the District Court following his plea of guilty with the intent to maliciously inflict grievous bodily harm.
The applicant and the victim were amongst a number of guests at a wedding ceremony and reception. In the course of the evening there was a disagreement with a man who was part of the bridal party. The applicant and three of his friends were asked to leave the reception by members of the families of both the bride and groom. The offender and his three friends walked down the driveway from the reception to the roadway, a distance of about 70 metres. The applicant had in his possession a 700ml glass vodka bottle which was still sealed and full. The bride’s father was walking behind the applicant and his friends in order to ensure they left the premises. As he reached the exit gate to the driveway the applicant was pushed in the back and he swung the glass bottle which he was holding and struck the victim with it. The glass bottle shattered upon impact with the victim’s face. The victim sustained lacerations to his face and a fractured nose.
The applicant voluntarily attended Quaker’s Hill Police Station where he was arrested. At the time of his offence he was 21 years of age and 22 when he stood for sentence. He had been attending university and was within six months of completing his Bachelor of Science degree. He had no prior convictions and was a person of otherwise good character.
Greg Walsh relied upon the following Grounds of Appeal on behalf of the applicant, namely:
Buddin, Barr JJ and Bell JA agreed. They referred to the provisions of s21A(2)(c) of the Crimes (Sentencing Procedure) Act. His Honour referred to R v Elyard (2006), R v Cramp (2004). Buddin J found that the sentencing Judge had fallen into error and upheld this ground of appeal.
In relation to the issue of the victim being vulnerable, Buddin J referred to R v Tadrosse (2005). The sentencing judge found the victim, by not being armed, was vulnerable in the extreme. His Honour at [31] also found this ground of appeal had been made out. The Court found that the offence was a serious one and that in all of the circumstances no other sentence was warranted in law. The appeal was dismissed.
In this matter Greg Walsh acted for M who on 18 June 2007 was arrested by police at his home in Balmain and charged with assault and resist arrest. It was the accused’s case that he was the subject of a vexatious complaint. This had arisen in the course of an alleged domestic violence incident. The incident had been privately witnessed by persons in the adjoining home who had contacted police.
The case concerned the powers of the police under statue and common law to enter premises and in particular the Law Enforcement (Powers & Responsibilities) Act, 2002.
It was argued by Greg Walsh on behalf of the accused that his arrest was unlawful on a number of grounds. The primary ground that in order for there to be a lawful arrest the police must suspect on reasonable grounds that arrest is necessary to achieve more of the purposes referred to in s99 of LEPRA. In the course of the argument, the observations of Smart AJ in R v Rondo (2001) was referred to. Further, the decisions of the Court of Appeal in State of New South Wales v Kuru and Pringle & Ors v Everingham (2006) arose.
The Court held that the police had trespassed in entering upon the accused’s premises. In factual terms, the accused had directed police to leave his home which they had entered. Three of the officers did so but remained at the front door. However when the Court on to find out that as the accused’s wife had impliedly given permission for police to enter there was no trespass.
The Court then dealt with the issue of the evidence relied upon by the prosecution pursuant to s138 of the Evidence Act 1995. It was submitted by Greg Walsh that such evidence was inadmissible. He relied upon the well known passage in Donaldson v Broomby (1982) A Crim R 160. Reference was also made to the test adopted by Smart AJ in R v Car (2002) NSWSC 194.
In further argument, reliance was had to R v Cornwell (2006) NSWCCA 116. The observation of Howie J referred to as were those of Hall J in Director of Public Prosecutions v AM (2006) NSWSC 438. The presiding Magistrate found that the decision to arrest the accused was entirely motivated by expediency. His Honour further found that the evidence obtained in consequence of the impropriety and was inadmissible. The Magistrate also was not satisfied that a prima facie case existed in relation to the charge of assault occasioning actual bodily harm and assault and all charges were dismissed. An application for costs was granted in favour of the accused.
In this matter Greg Walsh appeared for the applicant in the New South Wales Court of Criminal Appeal. The applicant sought leave to appeal against a sentence imposed by Sorby DCJ. She pleaded guilty to a charge that between 28 December 2005 and 31 May 2006 she had dealt in money that was proceeds of crime and was as to the fact that the money was proceeds of crime and at the time of the dealing the value of the money was $100,000 or more. She was sentenced to imprisonment for three years expiring on 28 September 2009.
The applicant knew a number of people who were involved in the importation of amphetamine and the distribution of the proceeds of its sale. In the period between June and December 2005 the applicant had spoken to one Lisa Dunn who knew a number of these persons. On 8 June 2005 a United States Navy vessel arrived at Townsville and a member of the crew retrieved from it a quantity of amphetamine and handed it to another of the syndicate.
On 9 November 2005, one of the drug syndicate arrived on a shipment from overseas and the applicant travelled by car from Sydney to the Gold Coast to collect $100,000 in cash from another member of the syndicate. She drove back to Sydney and delivered the money to a cash dealer. On another occasion she travelled again by car to the Gold Coast and collected a further sum of $100,000 from a member of the syndicate and brought it back to Sydney by car. On a third occasion she transported an amount of $50,000 back to Sydney by plane.
On 24 October 2006 the applicant was arrested. She was initially interviewed by Federal Agents on that day and again on 21 November 2006. She admitted transporting cash on the three occasions. She explained that she did do as she believed that the money she was collecting was for the legal fees for a member of the syndicate. She was chronically depressed and was being treated and prepared to do any task that made her feel worthy. She did not question her friends who had asked her to transport the money.
In the sentencing proceedings, Dr Freed, a treating psychiatrist was called to give evidence. In his opinion the applicant had a significant degree of impairment of her psychiatric functioning and control. Dr Freed was an expert in the diagnosis and treatment of bipolar disorder and practiced at the St Vincent’s clinic. In particular the applicant had suffered a significant subjective history in that she had on a number of occasions been abused s a child and as a teenager. Her symptoms included significant psychotic features including disturbed thoughts of eating human kidneys and other delusional beliefs. The impact of the abuse upon her was also a significant feature of her bipolar disorder and psychotic symptoms.
Sorby DCJ did not accept that the mental condition from which the applicant was suffering had interfered with what she was doing when she carried away the money. In argument, two principle ground were advanced on behalf of the applicant, namely:
Ground one
Barr J observed at [24] that the two substantial arguments were put forward under this ground. The first was that his Honour did not consider whether and how the applicant’s mental condition affected her appreciation of the gravity of the offence, as it was put. Mr Walsh referred the Court to a number of cases which explained the various ways in which the mental illness of an offender may sound and the sentence to be imposed. See Leach v R [2008] NSWCCA 73, Basten JA [10]-[12]; R v Verdins [2007] VSCA 102 at [32] and R v Israil [2002] NSWCCH 255.
His Honour noted at [27] that Mr Walsh drew the Court’s attention to parts of the report of Dr freed which was before the sentencing judge. The first was bipolar disorder mixed with psychotic features. The applicant had manic like symptoms since at least 1999 and significant depressive symptomatology following her sister’s rape and assault in September 2005. She had the complication of mixed intertwining between depressed and manic phases as well as psychotic features, namely auditory hallucinations and paranoid ideation. She thought that flies settled on her because she was garbage. She thought that her family whispered about her. Dr Freed drew attention to the family history of mental illness, including bipolar disorder. Significantly Barr J at [28] noted the post traumatic disorder resulting from sexual molestation on a number of occasions and also the assault and rape of her sister by four men in 2005.
The Court concluded that the evidence shows that the effect on the applicant of the various illnesses from which she suffers will be significant as she serves her sentence and her sentence ought to be mitigated. Barr J with whom Basten JA agreed said the sentence imposed by His Honour is warranted: s6(3)Criminal Appeal Act 1912.
The applicant was granted leave to appeal and the sentence appealed from be quashed and there be substituted a head sentence of imprisonment of two years and six months with a non parole period of one year and six months.