In this matter Greg Walsh acted for David Wilson, the plaintiff in an action against the State of New South Wales.
A subpoena had been issued seeking the production of documents from the Commissioner of Police and objection was taken to the production of those documents.
Mr Wilson had sued the State of New South Wales for wrongful acts alleged against certain Sheriff officers in its service. The plaintiff claimed damages for trespass, assault, wrongful arrest, false imprisonment, malicious prosecution, trespass to goods and detinue.
Complaints were made as to the conduct of the officers involved which became the subject of various investigations and other inquiries by a number of authorities including the New South Wales Ombudsman of a disciplinary nature. The subpoena sought the production of documents brought into existence as a result of these complaints and their consequences, which the defendant resisted relying on s.170 of the Police Act,1990; s.56 of the Civil Procedure Act, 2005 and the Uniform Civil Procedure Rules, 2005.
On 31 January 2008, Walmsley J ordered the defendant give discovery of certain disputed categories of arising out of the complaints, but left open for subsequent consideration various issues surrounding production and inspection of the documents. The defendant prepared a list of documents in which it discovered a significant number of documents. No objection was made to a number of those documents.
Johnstone DCJ referred to the observations of Hunt J in R v Saleam (1989) 16 NSWLR 14. His Honour observed at [162B]:
“The circumstances that a document is inadmissible in evidence in any particular proceedings, does not mean that a party to those proceedings may not have access to it for legitimate forensic purposes. In McAuliffe v McAuliffe (1973) 4 ACTR 9 at 12-13, Blackburn J refused access to documents produced on subpoena on the basis that they were not by themselves admissible in evidence.
That decision was expressly held by the Court of Appeal to be unsound and not to be followed: Waind & Hill (381). Subject to the existence of a legitimate forensic purpose, a party is entitled to see documents produced on subpoena, not only to see whether they can themselves prove relevant facts but also to see whether they disclose information which may be established in some other admissible form.”
The State asserted the principle in R v Saleam did not apply to s.170 of the Police Act. It was submitted that s.170 should not be read so restrictively in the environment of civil litigation post the Civil Procedure Act, 2005. Johnstone DCJ observed:
“That was a bold submission and not one that espoused any principle of statutory construction of which I am aware.”
The next contention on behalf of the defendant was that the word ‘privilege’, which appears in the heading to s.170, must be given some work to do. His Honour rejected this contention. See s.35(4) of the Interpretation Act.
The defendant then contended that the disputed category 2 documents were not relevant to any civil proceedings His Honour said that this was also a bold submission.
Next the defendant contended that the plaintiff had not established a legitimate forensic purpose. His Honour found that it was probable that the documents will reveal additional facts not in possession of the plaintiff that will assist in the prosecution of his case. Further, that the documents will inevitably give rise to avenues for further investigation and the identification of additional potential witnesses. Further, they will in all likelihood assist the plaintiff in the cross-examination of any defence witnesses. See Street v Luna Park Sydney Pty Limited [2006] NSWSC 95 at [11]; Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 11; Esso Australia Resources Limited v Federal Mutual General Association Limited v Waind and Hill (1978) 1 NSWLR 372 at 378D-E, 383 E-F and 385F.
Finally the defendant contended that the Court should refuse the inspection as to do so would run contrary to the overriding purpose enunciated in s.56 of the Civil Procedure Act 2005, to the effect that the procedures of the Court should be conducted so as to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
The defendant relied upon the observations of the Chief Justice in Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 at [28]-[29]. His Honour noted that the remarks of the Chief Justice were not in relation to s.58 of the Act and that the Court must act in accordance with the dictates of justice. Those dictates not only require him to have regard to the object of the just determination of the proceedings (s57(1)), but to enable him to have regard, amongst other things, to the nature of the proceedings involved and the degree of difficulty or complexity to which the issues give rise (s58(2)(b)(i)), and to the degree of injustice that would be suffered by the respective parties as a consequence of any order that he may make (s58(2)(b)(vi)).
His Honour made the orders sought by the plaintiff in the motion.
In this matter, Greg Walsh acted for the applicant, Ms Yeats, the wife of Mr Yeats, who was in receipt of a benefit from the Department of Social Security.
The wife was removed from the Wiley Park Hotel, which she had managed for some years, on 17.07.2006. She was removed in the early hours of the morning when a large number of police from Campsie Police Station arrived for the purposes of executing a search warrant. The wife, who had met her husband in 1989, married him in April 1992. She had no assets and her husband had significant assets including the Wiley Park Hotel, Guildford Hotel and the Nortons on Norton Hotel.
The husband’s assets exceeded $15 million.
The wife was physically escorted by police to a section of the Hotel where the husband’s solicitor Mr Stephen Alexander directed that she forthwith remove herself from the Hotel or otherwise she would be charged. He didn’t indicate what she would be charged with. The wife had no choice whatsoever which was extraordinary situation and she was forced from the hotel and onto the street without her clothing or personal effects including her beloved three dogs.
The wife also instituted proceedings in the Supreme Court of New South Wales against the State of New South Wales and Mr Yeats and Jetobee Pty Limited, the corporate entity controlled by the husband. She sought damages including exemplary and aggravated damages for the malicious procurement of the warrant, her wrongful arrest and false imprisonment and malicious prosecution. The husband filed a cross-claim in the Supreme Court alleging that the wife had defrauded himself and Jetobee Pty Limited for the sum of $800,000.00.
Justice Le Poer Trench considered the principles applicable to an interim spouse maintenance order. His Honour noted that the uncontradictive evidence was that the wife was living in shared accommodation consisting of a two bedroom unit that her sister and brother-in-law lived in.
She had previously resided in accommodation at the Wiley Park Hotel where she undertook a considerable amount of work in management and renovation. The husband lived in the Guildford Hotel. His assets were $12.5 million and liabilities of $8.8 million. As a result of the incident on 17 July 2006, the wife was traumatised and her health was such that she was unable to obtain employment.
The husband had $1.045 million in publicly listed shares as well as a Bentley valued at $150,000.00. The dividends from Jetobee Pty Limited were $50,000.00, AMP dividends of $25,000.00 and other dividends from public companies of $3,000.00. His Honour failed to see how an income of $78,000.00 produced a tax liability of $80,000.00 which is asserted by the husband.
The husband was owed $1.7 million by LJ & CA Yeats Pty Limited and he had a portfolio worth $1.045 million. The husband had not disclosed any detail of the movement in any of the loan accounts he has with any of his associated corporate interests.
The wife’s application sought payment of $300,000 for the provision of costs for the family law proceedings and $100,000 for payment of costs in relation to the criminal proceedings the wife was facing. The application was brought pursuant to s.79 of the Act. See Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578.
Justice Le Poer Trench concluded that the sum of $100,000.00 to be paid to the wife’s solicitor’s trust account to be applied only to costs for the family law proceedings noting that in the future the wife could seek further amounts should that be necessary.
His Honour also ordered that the wife be paid the sum of $100,000.00 by way of interim/partial property settlement to be paid to the wife’s solicitors and be applied by them to fund the wife’s defence in criminal charges brought by the Crown in relation to allegations against the wife during the time she was at the Wiley Park Hotel.
In a post script to this decision the criminal proceedings against the wife were heard at the Burwood Local Court before Magistrate Barkell. Mr Yeats gave evidence in which he was cross-examined about the information that he had provided to investigating police in a meeting at the Norton on Norton Hotel just shortly before the execution of the search warrant by police from Campsie. At that meeting was a licensing police officer from Leichhardt Police Station.
Mr Yeats was cross-examined about information given to the Police and in particular assertions that in respect of an account in respect of which normally would be substantially in credit. In cross-examination it was revealed that Mr Yeats had himself caused electronically to be transferred a large sum of money from that account so as to deplete the credit balance in the account to demonstrate that monies had allegedly been withdrawn from the account by the wife. The fact is that these monies had been withdrawn from their account by Mr Yeats himself.
All of the charges against Ms Yeats were dismissed and in fact, her Honour was not satisfied that a “prima facie” case had been made out.
In this matter Greg Walsh acted for the applicant who had been charged with the murder of his wife. He has initially been refused bail and an application for bail was made to the Supreme Court of New South Wales.
Rothman J heard the application and after extensive argument granted the applicant conditional bail. The issue before the Court was whether in terms of s9C of the 1978, the Court was satisfied that “exceptional circumstances” justify the grant of bail. Rotham J referred to the observations of Johnson J in R v Young (2006) NSWSC 1499.
The crown opposed bail and relied upon the decision of the Court of appeal in the Commonwealth DPP v Germakign (2006) NSWCA 275. His Honour also referred to R v Daron John Wright (unreported 7 June 2005) and R v DPR (unreported 1 August 2007). His Honour made specific reference to the evidence of Professor Yeo as to the needs of the applicant and the danger to his health from his imprisonment. His Honour accepted that the applicant’s medical and health needs are not being met and his health is seriously deteriorating.
His Honour made findings that the other provision of s32 of the Bail Act satisfied his Honour that the application, who has no prior criminal records, should be granted bail on very strict conditions.
Greg Walsh represented Omar Baladjam, an Accused standing trial in the Supreme Court of New South Wales of an offence of ‘conspiracy to do acts in preparation of a terrorist act or acts’ contrary to ss.11.5 and 101.6 of the Criminal Code Act 1995 (CTH).
The matter was heard by Justice Whealey, who dealt with a number of pre-trial and trial applications before the matter was heard by a jury in 2008.
In this matter Greg Walsh acted for Omar Baladjam.
Mr Baladjam and eight (8) other accused had been charged with a conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act (1995).
An application was made to a Melbourne trial judge, Bongiorno J seeking certain non publication suppression orders in relation to the reporting of certain material emanating or likely from a trial in Melbourne.
By coincidence the trial of 12 other men accused of terrorism commenced in Melbourne before a Judge and jury on 13 February 2008.
On 21 February 2008 Bongiorno J refused the substantive application to suppress details about the application.
Whealy J dismissed the application on behalf of the accused. His Honour considered whether a Quia timet injunction can be made in an anticipatory fashion to prevent a threatened contempt of court by media outlet or outlets.
His Honour accepted that there was authority for the court to grant such an injunction in circumstances where the publication of the material is prejudicial to pending proceedings. In United Telecasters Sydney v Hardy (1991) 23 NSWLR 323 at 332; Waterhouse v Australian Broadcasting Corporation (1986) 6 NSWLR 716 at 719-720, His Honour observed that the exercise of such a power would be a rare one. Herald & Weekly Times Pty Limited v A [2005] 169 A Crim R 299; Pickering v Liverpool Daily Post (1991) 2 AC 370.
The fundamental principles of open justice were emphasised by His Honour. See John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 (2004) 61 NSWLR 344.
Regina (Cth) v Baladjam & Ors [No.1] [2008] NSWSC 721 (7 March 2008).
In this matter Greg Walsh acted for Omar Baladjam who was one of the Accused standing trial in the Supreme Court of an offence of conspiracy to do acts in preparation of a terrorist act or acts contrary to ss.11.5 and 101.6 of the Commonwealth Criminal Code Act.
The trial was conducted by Justice Whealey. His Honour dealt with a number of pre trial and trial applications and these dealt with a variety of issues.
Judgments are referred to hereunder.
Regina (C’wealth) v Baladjam & Ors [No 3] [2008] NSW SC 725 (18 March 2008)
Nine (9) men charged with conspiracy to do acts in preparation for, or planning, to commit a terrorist act or acts contrary to section 11.5 and 101.6 of the Commonwealth Criminal Code Act 1995 applied to have the venue of their Trial changed.
They had been in custody since November 2005. They were arraigned before the Supreme Court on 31 May 2007 and the Trial was listed on 25 February 2008.
At the time the Trial was set down for Hearing, it was anticipated that the venue would probably be the Darlinghurst Court complex used by the Supreme Court of New South Wales for criminal trials.
The Trial commenced on 25 February 2008 at the New Sydney West Trial Court situated in the legal precinct of Parramatta.
The Application for change of venue was made pursuant to section 30 Criminal Procedure Act 1986.
Whealy J observed that it was hoped from the outset that Darlinghurst might be a realistic location for the Trial. The Defence argued that a Trial at Parramatta would prove a most inconvenient and difficult one for lawyers involved because of the distance between Parramatta and Sydney CBD. There were other arguments about the proposed Court room and Court complex itself.
His Honour found that he was not satisfied there was any risk that a fair or unprejudiced Trial could not be held in relation to the present venue. His Honour thus declined to change the venue of the Trial.
Regina (C’wealth) v Baladjam & Ors [No 4] [2008] NSW SC 726 (18 March 2008)
A number of applications were made on behalf of Omar Baladjam and others accused facing charges contrary to the Commonwealth Criminal Code.
An application was made for the quashing of the Indictment on the basis that it was bad for duplicity. It was argued that the offence pleaded in the Indictment was one unknown to the Law and accordingly it should be quashed.
The Indictment
The Indictment charged each Accused, that between July 2004 and November 2005 he conspired with other Accused to do acts in preparation for a terrorist act (or acts).
There were a number of particulars of the terrorist act (or acts) which involved an action or threat of action involving the detonation of an explosive device (or devices) or the use of weaponry or both that was or were to be done:
(a) With the intention of advancing a political, religious or ideological cause; and
(b) With the intention of:
i. coercing, or influencing by intimidation, the government of the Commonwealth or a State, Territory or foreign country; or
ii. intimidating the public or a section of public
(c) in circumstances where the action, if carried out, would:
i. cause serious harm that is physical harm to a person; and/or
ii. cause serious damage to property; and/or
(d) in circumstances where the action, if carried out, would not be advocacy, protest, dissent or industrial action or a kind not intended to:
i. cause serious harm that is physical harm to a person; or
ii. cause a person’s death; or
The Law
Whealy J referred in detail to various provisions of the Commonwealth Criminal Code including section 101.6(1) of an offence to do an act in preparation or planning a terrorist act; section 101.6(2) commission of the offence being committed even if the terrorist act has not occurred or the act in preparation or planning has not been in respect of specific terrorist act or been in preparation or planning for more than one terrorist act.
The offence of conspiracy is set out in section 11.5 of the Code and His Honour referred to section 11.5(2) of the Code which provides three requirements before a person can be guilty of conspiracy under section 11.5 of the Code:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
The Crown Case
That His Honour dealt with in some considerable detail the Crown case including the Accused amongst other things:
(a) obtained or attempted to obtain chemicals and other relevant materials which could be used in the construction of an explosive device;
(b) obtained or attempted to obtain weaponry and ammunition;
(c) possessed large amounts of extremist and instructional material.
Legal Principles
Reliance was placed upon the principle that Courts have criticised the tactics of charge of conspiracy where a substantive offence is available. Hoar [1981] HCA 67; (1981) 148 CLR 32.
The Crown responded that a number of matters in the Crown case statement were not to be admitted against some Accused and relied upon Ahearn v Regina (1988) 164 CLR 87; Regina v Tripodi [1961] HCA 22; (1961) 104 CLR 1; Masters v R (1992) 26 NSWLR 450.
Whealy J was of the opinion that the Hoar principles should be confined to propositions that were earlier stated by His Honour. There were those cases in which it was clearly inappropriate to leave a conspiracy charge in an Indictment where there is a sufficient and effective charge available to the Crown. In this case, the conspiracy charge was an appropriate charge and His Honour refused to quash the Indictment. See Ruich v Western Australia [2006] WASCA 241 at [81] – [82]; R v El-kotob [2002] 4 VR 456 per Vincent JA at [42]; R v Chung [2007] NSWCCA 231 at [51].
Duplicity
A further argument was advanced that the Indictment was bad for duplicity. See Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Stanton v Abernathy (1990) 19 NSWLR 656; Walsh v Tattersall (1996) 188 CLR 77; R v Giam (1999) 104 A Crim R 46.
It was argued that the Indictment was bad for duplicity because it charged an agreement to do acts in preparation for “a terrorist act or acts”. It was argued that at simplest the charge contains of possibly two conspiracies:
(a) an agreement to do an act or acts in preparation for a single terrorist act;
(b) an agreement to do an act or acts in preparation for more than one terrorist act.
Resolution of the Issues
Whealy J after carefully considering a large number of authorities, including Gerakiteys v The Queen (1984) 153 CLR 317; R v Ongley (1940) Volume 57 NSW (WN) held that the Indictment was not bad for duplicity. His Honour’s reasoning was based on three matters. First the consistency of the language used in the history of the legislation since 1960; secondly the common and accepted practice to include in an Indictment one count for a conspiracy alleging the doing of multiple unlawful acts; thirdly the decision of the New South Wales Court of Criminal Appeal Ansari v R [2007] NSWCCA 204.
In this matter Greg Walsh acted for the plaintiff in proceedings against the State of New South Wales and the Director of Public Prosecutions. On 31 January 2000 the plaintiff was sexually assaulted by another police officer and she made a complaint to the police and that police officer was charged with her sexual assault. The offender was tried on three occasions and ultimately acquitted. Over the next four and a half years the plaintiff was the subject of multiple prosecutions initiated by the New South Wales police including an apprehended violence order proceedings. The prosecutions against her failed.
The plaintiff filed a statement of claim in which she sought damages for wrongful arrest and malicious prosecution. The State of New South Wales sought particulars and over a number of years further amended statements of claim were filed together with further requests and answers to particulars. On 25 January 2007 a further request for particulars was made by the Crown Solicitor’s Office requiring approximately 200 responses. They were provided on 15 March 2007.
The State of New South Wales filed a notice of motion seeking to strike out the amended statement of claim on the basis that matters pleaded are objectionable because they have a tendency to cause prejudice, embarrassment or delay in the proceedings or otherwise an abuse of process of the Court occurs; see Rule 14.28(1)(b) and (c) of the Uniform Procedure Rules.
Harrison J reviewed authorities in relation to the issue of particulars. His Honour referred to Hunt J in Douglas & Anor v John Fairfax & Sons Limited & Anor [1983] 3 NSWLR 126 at 133 where his Honour observed:
“Their function is to simply relieve the other party if they need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded.”
His Honour also referred to A v New South Wales [2007] HCA 10 in which the High Court of Australia dealt with the question of what the plaintiff needs to prove to establish absence of reasonable probably cause. Harrison J referred to the observation of Hawkins J in Hicks v Faulkner at [85]:
“Because the question in any particular case is ultimately one of fact, little use for guidance is to be had from decisions and other cases about other facts. Rather, the resolution of the question will most often depend upon identifying what it is that the plaintiff asserts to be deficient about the material upon which the defendant acted in instituting or maintaining the prosecution. That is an assertion which may, we do not say must, depend upon evidence demonstrating that further inquiries should have been made.”
Harrison J held that this was not a case in which any portion of the Amended Statement of Claim should be struck out. The defendant’s consented to the filing of a fifth edition of the statement of claim. His Honour nevertheless ordered certain particulars to be provided.
In this matter Greg Walsh acted for the plaintiff who was the accused person in committal proceedings before the second defendant, Forbes LCM at the Hornsby Local Court. The proceedings relate to a charge of aggravated indecent assault contrary to s61M(1) of the Crimes Act, 1900 and a charge of aggravated act of indecency contrary to s61O(1)(A) of the Crimes Act, 1900. The Magistrate declined to direct that the complainant be cross-examined pursuant to s93 of the Criminal Procedure Act, 1986. The complainant at the time of the alleged offences was residing in a home care group home and is intellectually disabled.
On Monday 10 October 2005, the home was short staffed and an agency was contacted and sent a carer for the nightshift. This was the plaintiff. At 7.00am the following morning the regular carers arrived and whilst assisting the complainant to shower a conversation allegedly took place between the carer and the complainant. In that conversation the complainant made reference to “oh, sore bum.” He also allegedly said, “Man played with wee wee”.
The carer spoke to her colleague and then contacted the Rape Crisis Centre at Royal North Shore Hospital and conveyed the complainant to that hospital for medical examination. The complainant on Wednesday 12 October 2005 was interviewed by a Senior Constable in the presence of his mother. A number of the questions in that interview involved the complainant’s mother leading the complainant in respect of critical issues.
A buccal sample was obtained from the complainant and subsequently from the plaintiff. A biologist reported that the plaintiff had the same DNA profile as the DNA recovered from the seminal stained area of the pyjama pants. The complainant was again interviewed on 17 October 2006. This interview again took place in the presence of his mother. Once again, the complainant’s mother took a very active role in the course of the interview. The prosecution then withdrew two charges against the plaintiff.
Greg Walsh made an application pursuant to the provisions of the Criminal Procedure Act for the attendances of certain witnesses including the complainant. After a contested hearing, Forbes LCM declined the application in respect of the complainant.
An appeal was made to the Supreme Court and this was heard by McClellan CJ at CL. His Honour dismissed the plaintiff’s summons and made a finding that her Honour’s approach to the question as to whether the complainant ought to be directed to attend for cross-examination was “devoid of any error”.
His Honour dealt at length with the fundamental issue of an appeal pursuant to s53(3)(a) Crimes (Appeal & Review) Act, 2001. His Honour at [37] noted that such an appeal is only available with leave and is confined to a question of law alone. In terms of prerogative relief whilst accepting that it was available in relation to committal proceedings, it was a relief that could only be granted in particular circumstances. See Nanevski v Haskett[2006] NSWSC 1114.
His Honour [39] found that even if he, or another judicial officer, formed a different opinion to the learned Magistrate in respect of the application, on the same facts, this would not constitute a jurisdictional error if the Magistrate determined the issue in accordance with the relevant law, McKirdy v McCosker [2002] NSWSC 197 per Howie J.
Luke Jarvie suffered serious injuries as a result of being attacked by an offender after watching a Cronulla Sharks v Warriors NRL game at Shark Park on 27 May 2006. Whilst he was leaving the grounds and awaiting his mother to pick him up, he was struck by an offender and rendered unconscious. He was admitted to hospital with a fractured skull.
The offender was charged with assault occasioning actual bodily harm and convicted at the Sutherland Local Court. Police called in evidence Luke Jarvie and other witnesses and the Magistrate convicted the offender and rejected any contention that the offender was acting in any way in self-defence.
Luke Jarvie retained a solicitor in respect of an application for victims compensation and that application was determined by the Tribunal whereby in effect no compensation at all was awarded to Mr Jarvie. The Tribunal in its findings relied upon a statement of a witness who was not called in the criminal proceedings.
Greg Walsh acted on Luke’s behalf in respect of an appeal from the determination of the Tribunal. It was necessary to establish special grounds pursuant to s.38(3) Victims Support & Rehabilitation Act, 1996, as there was a considerable body of addition evidence in relation to the act of violence and the extent and nature of injuries sustained.
In relation to the injury, Mr Walsh relied upon additional material including that of Professor Yeo, Dr Stening and Dr Roberts.
It was accepted that special grounds had been established and leave was granted for Mr Walsh to rely upon the new material. The compensation assessor determination was set aside and a significant amount of compensation awarded to Mr Jarvie.
In this matter Greg Walsh acted for Xavier McCrae, a former boy scout who was sexually abused by one Robert Potter, a Scout Leader. Potter pleaded guilty to sexually assaulting four young male complainants including Mr McCrae between 1978 and 2002.
Greg Walsh commenced proceedings on behalf of Mr McCrae claiming damages for assault against Mr Potter and damages for negligence against the Boy Scout Association. The Association eventually admitted breach of its duty of care. Damages against the association were assessed pursuant to the Civil Liability Act 2002.
Xavier McCrae initially attended at Kyle Bay Scout Hall where he was given, together with other young scouts, a firearm demonstration by Potter. Potter encouraged McCrae and others in the Venture Group to meet him at his house in Narwee. At the first meeting at Potter’s house, Mr McCrae was taken to a pistol club in Condell Park. Over the next three years, Potter encouraged Mr McCrae and other young scouts to come to his home where pornographic videos were shown including homosexual videos. Xavier and others were subjected to a number of forms of sexual views which continued right to 2002.
Potter was not only a paedophile but also a hebophile, that is, an adult who has a strong sexual and emotional attraction to adolescents. The ages of such children are between 11 and 17 years of age. Hebophiles invariably display predatory behaviour in identifying troubled or withdrawn post-pubescent children. They often comfort and support vulnerable post-pubescent children and make the child dependent upon them.
The effect of the abuse upon Xavier McCrae was profound. Xavier was treated by Dr Sara Williams and Dr Ruth Forster. The latter had been providing regular psychotherapy since taking over his care in 2004. She diagnosed him as suffering a chronic dysthymic disorder.
Judge Peter Johnstone found that Xavier McCrae significantly understated his case and gave evidence in a forthright manner. His Honour noted the effects of self-mutilation on Xavier’s upper arms which clearly indicated the diverse effect of Potter’s abuse upon him. His Honour accepted Xavier McCrae as a witness of credit.
The Scout Association qualified Dr White who trivialised Xavier McCrae’s sexual abuse as the substantive stressor. Judge Johnstone observed “the opinion of Dr White is in my view flawed, objectively unsupportable and less than compelling.”
Apart from Dr Sara Williams, Dr Ruth Forster and Dr Parker, McCrae was examined by Dr John Roberts. His Honour noted that Dr Roberts spoke of the severity of the symptoms experience by Mr McCrae, including self-mutilation, down to the muscle of an intelligent young man and the appearance of normality but severely affected. His Honour Judge Johnstone found that Xavier McCrae suffered a severe and debilitated psychological condition as a result of the sexual abuse he experienced. His Honour awarded damages against the Scout Association in the sum of $501,941 and against Potter of $766,941. The award against Potter included exemplary damages of $100,000.
In this matter Greg Walsh appeared for the defendant in a summons brought by the Commonwealth Director of Public Prosecutions contending that an order made by Mr Flack, Magistrate, on 9 October 2003 at the Liverpool Local Court discharging the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth) be set aside.
The background to the matter was that Mr Flack ordered that the defendant be discharged pursuant to s19B(1)(d) of the Crimes Act 1914 and to be of good behaviour for a period of eighteen months.
It was contended by the Commonwealth Director of Public Prosecutions that the sentence imposed by the learned Magistrate was not available at law because the defendant had been convicted in the Local Court in her absence on 31 March 2000. That conviction had not been annulled due to the fact that the defendant was not aware that the conviction had been recorded until a warrant for her arrest was issued some three years after the recording of the ex-parte conviction on 31 March 2000.
Hall J concluded that the conviction made and recorded by the Bankstown Local Court on 31 March 2000 constituted a determination that the elements of the offence charged had been established on the basis of the evidence and that the defendant was accordingly guilty of the offence. However, his Honour found that the determination did not contitute a conviction in the sense of a final disposition of the proceedings. See Maxwell v The Queen (1995-96) 184 CLR 501; Griffiths v The Queen (1977) 137 CLR 293; Kinney v Green (1992) 29 NSWLR 137; Kopuz v District Court of NSW(1992) 28 NSWLR 232; Mulcahy v Clark (1991) Tas. R. 115; Cobiac v Liddy (1969) 119 CLR 257; Della Patrona v DPP (Cth) (No 2) (1993) 38 NSWLR 257; Application by the Attorney General under s37 of the Crime (Sentencing) Procedure Act for a Guideline judgment concerning the offence of High Range prescribed Concentration of alcohol under s.9(4) of the Road Transport (Safety and Traffic Management) Act 1999 (no 3 of 2002) [2004] 51 NSWLR 305.
Accordingly his Honour found that there was no conviction within the meaning of that term and that s19B of the Crimes Act 1914 (Cth). It was therefore open to Mr Flack on 9 October 2003 at the Liverpool Local Court to exercise the power to discharge the defendant pursuant to s19B(1)(d) of the Crimes Act 1914 (Cth).
In this matter Greg Walsh appeared for the applicants who had successfully resisted an application for extradition by New Zealand.
It was argued that costs were discretionary and notwithstanding the fact that the applicants had successfully resisted extradition, they were not entitled to their costs. Madgwick J observed that s43 of the Federal Court of Australia Act 1976 (Cth) gives the Court a wide and unstructured discretion. His Honour referred to the decision in Latoudis v Casey (1990) 170 CLR 534 in which the High Court had considered the discretion in relation to the prosecution for a summary criminal offence where the Defendant had succeeded. The majority of the High Court had emphasised the compensatory nature of a costs order and the inadequacy, in a criminal law context, with the fact that the charge was laid in the public interest and that the informant acted reasonably in laying the charge as a reason to deprive the successful defendant with a costs order; per Mason CJ at 544; Toohey J at 563 and McHugh J at 569.
Madgwick J ordered New Zealand to pay the applicant’s costs.
In this matter Greg Walsh acted for Brian Dean Alcorn, a solicitor who had formerly been in the employ of Marsdens Solicitors. On 6 September 2005, Mr. Alcorn was sentenced by his Honour Judge Black for six offences to which he pleaded guilty. Two of the offences were under s300(2) of the Crimes Act of knowingly use a false instrument and four offences under s249(1)(b) of the Crimes Act of corruptly receiving a benefit as an agent.
The offences under s300(2) of the Crimes Act involved Mr Alcorn using a false instrument, being a statutory declaration, purportedly signed by certain persons knowing it to be flashed with intent to induce an officer of the Office of State Revenue to accept the instrument as genuine and thereby obtain monies.
Each of the offences under s249B(1)(b) of the Crimes Act occurred in circumstances whereby Mr Alcorn, as the agent of Marsdens Law Group, of which he was a partner, had corruptly received from a man named Stumer, a signed but otherwise blank cheque on the understanding that the applicant could complete the cheque in his favour for a certain sum. There was tendered before the sentencing Judge, an agreed statement of facts, which to a large extent related to a fraudulent scheme of which Mr Alcorn was not a party. The sentencing Judge in effect made findings that Mr Alcorn was that of a principal in the fraudulent scheme.
It was argued in the Court of Criminal Appeal that the learned sentencing Judge had fallen into error in categorising the appellant’s objective criminality as a principal in the fraud involving the co-offenders. The Court unanimously agreed that the sentencing judge did err in the way in which he assessed the objective criminality of the applicant.
At paragraph [57] James J found that the learned sentencing judge’s comments about the objective criminality of the applicant were not supported and were otherwise inconsistent with the agreed facts. Significantly, the applicant only became aware on 7 April 2002 as to the receipt of the secret commissions. The presentation of false declarations to the Office of State Revenue could not have been “part and parcel of lending of a false colour to transactions to enable money to be extradited from investors.” Those statutory declarations were presented to the Office of State Revenue on 17 June 2002, after the applicant had come to a realisation that he had been duped.
James J further considered the approach of the learned sentencing judge to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. At paragraph [60] his Honour found that the learned sentencing Judge had seriously contravened the sentencing principles stated by the High Court in Pearce. The Court referred to the judgment of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67-68.
An impermissible approach to sentences for multiple offences was “to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges.” Such a sentence cannot be an appropriate sentence for any of the individual offences. This was precisely the approach adopted by the sentencing Judge. Further section 44 of the Crimes (Sentencing Procedure) Act had no particular relevance to the sentencing for multiple offences.
The Court made orders granting leave to appeal against sentences and allowed the appeal against sentence. The sentences of Judge Black of 6 September 2005 were quashed and the applicant was re-sentenced in respect of the various offences. The longest of those sentences was that of imprisonment expiring on 6 September 2006.