In this matter Greg Walsh appeared for Bronwyn Ann Dwyer, a solicitor, who was the subject of an application that she was guilty of professional misconduct.
The application was based upon two grounds namely that the solicitor failed to inform a Mr Reed, the complainant, that the Court had dismissed proceedings in which he was the plaintiff, because of inactivity; and secondly, she had misled or attempted to mislead the Law Society.
The history of the matter was referred to at length in the judgment of the Administrative Decisions Tribunal handed down on 17 August 2006. The Tribunal consisting of C Vass, Judicial Member; J Currie, Judicial Member; and A O’Neill, Non-Judicial Member heard evidence as to the circumstances in which the solicitor was asked by a partner at her firm, namely Back Schwartz Vaughan, Solicitors, to deal with a notice issued from the Supreme Court in relation to a defamation matter. That notice was pursuant to Part 32A of the Supreme Court Rules.
The articles that gave rise to the action in defamation had been published as long ago as 20 December 1986. The client had instructed Back Schwartz Vaughan in March 1987. These were separate proceedings instituted in October 1987 arising from two publications. One of these matters was settled as long ago as 18 August 1994 by way of a Deed of Settlement and Notice of Discontinuance. The parties to the Deed were the client and the author of the article from a newspaper that had published the article.
Ms Dwyer who had previously not had the carriage of the matter, nor until 1997 had she been employed by the solicitors, was asked on 18 July 2000 to deal with the notice pursuant to Part 32A of the Supreme Court Rules. Ms Dwyer wrote a letter on 19 July 2000 informing the client of the receipt of the Notice and seeking further instructions.
Thereafter the client communicated with the firm of Solicitors that he in effect wished to proceed with the matter and an amount of $2,000.00 was paid on account of costs. On 13 September 2000, the clients matter was dismissed by the Registrar in Chambers. In the latter part of 2000, the solicitor maintained that she had spoken to the client on 2 separate occasions. It was her honestly held belief that this was the position. In 2002 the client attended the solicitor’s office and Ms Dwyer informed him that the matter had been dismissed. She was then made the subject of a complaint and it was her responses to the Law Society that in effect gave rise to the second and more serious ground of the application.
In the course of the hearing, the Tribunal was taken to the Statement by Lord Reid in Rondel v Worsley [1969] 1 AC 191 at 227 where it was observed:
“Every counsel has a duty to his client fearlessly to raise every issue, advance every argument and ask every question, however distasteful, which he thinks will help his client’s case. But, as an officer of the Court concerned in the administration of justice, he has an overriding duty to the Court, to the standards of his profession and to the public, which may and often does lead to a conflict with his client’s wishes or with what the client thinks are his personal interests. Counsel must not mislead the Court, he must not lend himself to casting aspersions on the other party or witnesses for which there is no sufficient basis in the information in his possession, he must not withhold authorities or documents which may tell against his clients but which the law or the standards of his profession require him to produce.”
In the course of submissions, Ms Dwyer’s position was put in these terms:
“The problem that she has, as a legal practitioner and a human being, is that she does have a recollection of that phone call telling Mr Reed that the matter has been dismissed. Memory, as we all know, is not as if a photograph was taken of some event. It is a reconstructive process.”
The Tribunal administered a public reprimand to the solicitor and ordered that she pay the costs of the Counsel of the Law Society of New South Wales.
In this matter Greg Walsh represented the appellant, A, following up on the grant of special leave on 10 February 2006.
The appellant brought proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the second respondent, the second respondent’s employer (the first respondent) and another police officer. This followed the dismissal of two charges of homosexual intercourse against him under s78H of the Crimes Act 1900 (NSW). The trial judge found that the claim of malicious prosecution was established against the first and second respondents in respect of one charge only. (The first respondent’s liability was based upon its vicarious liability as the second respondent’s employer). His Honour however dismissed the rest of the appellant’s claims.
The appellant appealed against the dismissal of the other claim for malicious prosecution. He also appealed against the dismissal of the claims for false imprisonment, false arrest and abuse of process. The appellant further appealed against various components of the award of damages. The first and second respondent cross-appealed, seeking a verdict on both claims of malicious prosecution.
In determining whether the respondents had acted without reasonable and probable cause in laying the charges, the trial judge applied the test stated by Jordan CJ in Mitchell v John Heine & Son Ltd (“Mitchell”). At the outset of the appeal however, the Court raised the issue of whether Jordan CJ’s statement was contrary to those made by this Court in Sharp v Biggs (“Sharpe”) and Commonwealth Life Assurance Society Ltd v Brain. One of the main issues upon the appeal therefore was the identification of the proper test to apply in such cases.
On 2 September 2005 the Court of Appeal (Beazley JA, with whom Mason P and Pearlman JA agreed) held that an accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause to succeed in an action for malicious prosecution. They also found that a prosecutor will act without reasonable probable cause if they lacked an honest and reasonable belief that charging a person was justified. In reaching these conclusions their Honours followed Sharp as opposed to Mitchell. The Court of Appeal further held that a prosecutor will “honestly and reasonably believe” that charging a person is justified if the evidence would lead a person or ordinary caution and prudence to conclude that it was warranted. Their Honours held however that a prosecutor need not actually believe that an accused is guilty. It is sufficient that they honestly and reasonably believed that there was a proper case to put before a Court.
The Court of Appeal further held that malice will be proved if an accused can show that a prosecutor was motivated by spite, ill-will or by improper motives towards the accused. This could include succumbing to pressure from bureaucratic superiors to lay a charge. In this case however there were no improper motives.
The pressure to charge the appellant existed because there was a “prima facie case” against him.
The grounds of appeal include:
On 21 March 2007 the High Court unanimously upheld the appeal by A, represented by Greg Walsh, in respect of his claim for malicious prosecution.
Succumbing to pressure to lay a charge with no reasonable and probable cause constituted a malicious prosecution the High Court held today.
A, a NSW police service employee, was charged in March 2001 with homosexual intercourse with his 12 and 10 year old step-sons, D and C, when they were aged 8 and 9 respectively. The boys were placed in foster care after the first interviews in October 2000 which followed a complaint of sexual abuse by an unidentified complainant. Detective Constable Floros was part of the joint investigation team in the Child Protection Enforcement Agency, and interviewed the boys, their mother S and A. At committal proceedings in August 2001, C admitted his evidence was false and that he lied to help his brother who disliked A intensely. The Magistrate discharged A on both counts, concluding there was no reasonable prospect that a jury could convict him.
A commenced proceedings for malicious prosecution, unlawful arrest, unlawful imprisonment and abuse of process. The District Court heard that Detective Floros has told A’s solicitor, Greg Walsh, that he felt sorry for A but was under pressure to charge A because he was a police employee. In a second conversation, Detective Floros repeated that he had been under pressure to charge A and if it had been up to him he would not have done so. He agreed with Mr Walsh that the boys evidence was unreliable. Judge Harvey Cooper dismissed all causes of action apart from the claim of malicious prosecution in relation to the charge concerning C and awarded A $31,250. He held that Detective Floros had acted maliciously by charging A for the improper purpose of succumbing to pressure from the Child Protection Enforcement Agency officers to charge A. The Court of Appeal dismissed an appeal by A against Judge Cooper’s decision in relation to the charge concerning D but allowed a cross-appeal by the State and Detective Floros against the decision in relation to the charge concerning C.
A appealed to the High Court which today unanimously allowed the appeal and ordered that Judge Cooper’s decision be restored. The appeal related to two of the required elements for a successful action for damages for malicious prosecution: that the defendant acted maliciously in initiating or maintaining the proceedings and that the defendant acted without reasonable and probable cause. To constitute malice, the sole or dominantly purpose of the prosecutor in brining the proceedings must be a purpose other than to properly invoke the criminal law. Absence of reasonable and probably cause may be established by showing either that the prosecutor did not honestly believe the case that was instituted and maintained or that the prosecutor had no sufficient basis for such a belief. The Court held that it was open to Judge Cooper to conclude that neither charge was brought for the purpose of bringing a wrongdoer to justice but that the charges were the result of succumbing to pressure. However, absence of reasonable and probably cause was demonstrated only in respect of C, so A had proved malicious prosecution in respect of the charge concerning C. The Court also held that it was open to Judge Cooper to find that Detective Floros either did not form the view that a charge was warranted in respect of C or, if he did form that view, that there was no sufficient basis for doing so. The High Court held that the Court of Appeal had erred in interfering with Judge Cooper’s findings of fact which depended upon his assessment of the credibility of the evidence given respectively by Detective Floros and Mr Walsh.
In this matter Greg Walsh acted for Mr Whiting, a Solicitor who was the subject of a complaint of professional misconduct. The solicitor had procured his wife to affix a signature to wills as witness, falsely asserting that she was present when the testators and the solicitor signed them. The Solicitor conceded the grounds of the complaint and was ultimately fined $5,000.
In this matter Greg Walsh acted for Henk Eijkman in respect of an appeal from a decision of Sorby DCJ in granting leave for the respondent to commence proceedings out of time, inter alia, against Eijkman, McGloin and Trustees of the Roman Catholic Church of the Diocese of Parramatta.
The New South Wales Court of Criminal Appeal (Giles JA, Hodgson JA and Hunt AJA) upheld the appeal and set aside the orders made by Sorby DCJ. Giles JA observed at [81]:
“In some cases telling a person that he a psychiatric injury will make him aware of an additional extent of his injury, or put more accurately, diagnosis of a psychiatric injury will reveal an extent of injury of which the person was not previously aware. Thus, in Cranbrook School v Stanley [2002] NSWCA 290 Heydon JA distinguished at [68] between perceived emotional disturbance as symptoms of an illness or only “signs of some “personal weakness or illness falling short of an illness”, and referred to awareness of “signs and symptoms in his condition, but not that they reveal any personal injury”.
Giles JA at [82] found that the respondent as long ago as 1994 must have known that his emotional disturbance amounted to a psychiatric condition. Significantly, the respondent was disbelieved in respect of his assertions of not having been treated by a certain medical practitioner and at a hospital. Giles JA further found at [120] that the respondent knew in 1994 that he could sue the appellants in order to obtain compensation for the consequences of the sexual abuse he alleged he had suffered. His Honour went on to find that the respondent’s explanation of not seeing them was not a particularly strong one.
The Court unanimously found that it would not be just and reasonable to grant an extension of the limitation periods to the respondent.
In this matter, Greg Walsh represented A in respect of proceedings for malicious prosecution, false imprisonment, false arrest and abuse of process against the State of New South Wales and a police officer. The District Court had found for the plaintiff in respect of his claim for malicious prosecution, however the remainder of the plaintiff’s claims were dismissed.
In determining whether the respondents had acted without reasonable and probably cause in laying the charges, the trial Judge applied the test stated by Jordan CJ and Mitchell v John Hine and Son Ltd [1978] 38 SRNSW 466. The Court per Beazley JA (Mason, Pearlman AJA agreeing) held that:
i. To succeed in action for malicious prosecution, the accused must show that a prosecutor acted maliciously and with want of reasonable and probable cause; Sharp v Biggs (1932) 48 CLR 1;
ii. A prosecutor will act without reasonable and probably cause where an accused can show that a prosecutor lacked an honest and reasonable belief that the laying of a charge against an accused was justified. Sharp v Biggs (1932) 48 CLR 81; Commonwealth Life Assurance Society Ltd v Brain (1935) 53 CLR 343 (approved); Mitchell v John Hine & Son Ltd (1938) 38 SR (NSW) 466 not followed.
iii. A prosecutor will “honestly and reasonably believe” that the laying of a charge is justified where upon the material available to the prosecutor forms a genuine belief that upon general grounds of justice a charge against the accused is warranted; and where the evidence would lead a person of ordinary caution and prudence to conclude that the laying of the charge was warranted; Sharp v Biggs (1932) 48 CLR 81;
iv. A prosecutor need not believe that the accused was guilty of the offence charged in the sense than an accused will be convicted. It is sufficient that a prosecutor honesty and reasonably believed that upon the available evidence, there was a proper case to lay before the Court; Sharp v Biggs (1932) 48 CLR 81
v. It is not appropriate for a prosecutor to rely upon irrelevant or inadmissible material, unless there is some proper purpose in doing so, for example, to assist in an assessment of the credibility of other material.
vi. Although much of the material considered by the second respondent was inconsistent and inadmissible, there was sufficient material in his possession such that a reasonable and prudent person would consider that the charges were warranted.
vii. Although there was pressure on the second respondent from his superiors it was pressure to lay the charge if there was a “prima facie” case.
viii. The second respondent believed, on the material he considered that the charges were warranted.
ix. Malice will be proved where an accused can show that, in laying a charge, a prosecutor was actuated by either spite or ill-will towards the accused or improper motives, namely motives other than a desire to bring the accused to justice. Hicks v Faulkner (1878) 8 QB 167; Trobridge v Hardy (1955) 94 CLR 147; Glinski v McIver [1962] AC 726;
x. An improper motive in charging an accused with an offence, such as succumbing to pressure from bureaucratic superiors to lay a charge may, in some cases, support a finding of malice. In this case, however, the pressure was to lay a charge if there was a “prima facie” case.
A has sought leave to appeal to the High Court of Australia.
In this matter Greg Walsh acted for AW and others in respect of an application for costs arising from an action for malicious prosecution, wrongful arrest and false imprisonment. Bell J had entered verdicts in favour of the second and third plaintiffs in AW & Ors v State of New South Wales [2005] NSWSC 543.
The application for costs was complicated having regard to the fact that the first plaintiff was unsuccessful in his claim based upon malicious prosecution.
The State of New South Wales submitted that the second and third plaintiffs ought not to obtain an order costs. It was contended that the proceedings fell within the jurisdictional limit of the District Court and that the plaintiffs had not established that there was sufficient reasons for commencing or continuing them in the Supreme Court. The Uniform Civil Procedure Rules 2005 did not contain a similar provision to the part 52A r33 of the Supreme Court Rules.
Bell J considered that this was an important discretionary matter to be taken into account and her Honour held that there was sufficient reason for commencing and continuing the claims in the Supreme Court. The allegations made in support of the claims were of a most serious character and each was entitled to seek vindication in the Supreme Court: Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291; Vignoli v Sydney Harbour Casino Pty Ltd [1999] NSWSC 1227.
Bell J ultimately ordered that the first plaintiff was to pay 20% of the defendants costs of the proceedings not previously dealt with. The defendant was to pay the second and third plaintiffs their costs of the proceedings, not otherwise dealt with.
In this matter Greg Walsh represented a successful plaintiff in an action for wrongful arrest, false imprisonment and malicious prosecution arising from charges that he had sexually assaulted his two step-sons. The charges against A were dismissed at a committal hearing and A was successful in his action against the State of New South Wales and the first defendant, a detective.
In this matter, Greg Walsh represented Mr Zaravinos in respect of an action against the State of New South Wales for false arrest and false imprisonment. Mr Zaravinos had attended a police station by appointment for an interview and was arrested successfully by two police on different but related charges, interviewed, charged, fingerprinted, photographed, bailed and released. The prosecutions were after several adjournments discontinued. At first instance the District Court judge found no reasonable grounds for arrest, noting “the case has all the hallmarks of heavy handed and officious use of arbitrary power” and awarded the plaintiff damages.
An appeal was made by both parties to the New South Wales Court of Appeal and significant issues relating to the law of arrest was determined in Mr Zaravinos’ favour.
At paragraph 39, Bryson JA said:
“The time at which Mr Zaravinos was arrested, sooner after 5pm on a Saturday afternoon, was probably close to the nadir of availability of Magistrates and authorised Justices, and also of lawyers able to give advice to persons under arrest. Although authorised Justices are available at a small number of Courts on Sunday, there was really no rational prospect of Mr Zaravinos’ areests ending in anything other than his being granted police bail later that night; there was not imaginably reasons why, with his passport available to be surrendered, a Bail Sergeant would decide to keep him in custody until he could be taken before an authorised Justice on the following day, or Monday. The Trial Judge did not accept the contention that there was a “minor fear” that Mr Zaravinos might abscond but if there were, it was dealt with as fully as it reasonably could be when his passport was brought to the police station by 6pm. As the trial judge rejected the evidence given by Superintendent Jenkins and Ms Horan about their reasons for effecting arrests, conclusions to the effect that the arrests were heavy handed and officious uses of arbitrary power, and that arrests and detention were wrongful, were reasonably open to the Trial Judge and His Honour could hardly find otherwise”.
In this matter Greg Walsh acted for a Mrs West who had been discharged pursuant to s19B(1)(d) of the Crimes Act, 1914. This provision provided that in effect she was discharged without receiving a conviction.
The police informant made an application to the Supreme Court seeking to set aside the decision of the Magistrate. It was argued that the Magistrate did not have the power, as a matter of law, to discharge Mrs West pursuant to the provisions of the Crimes Act, 1914 (Cth).
The Supreme Court in dealing with the application made a number of observations as to whether the Magistrate did have the power to deal with the matters as he did in the Local Court. It was argued on behalf of Mrs West, that the initial recording of a conviction was done ex parte and clearly she did not even known that she had been charged, let alone convicted. It was argued that ‘conviction’ amounted to no more than a mere recording of guilt. Such that the Magistrate was not precluded in dealing with the matter in the manner which he did. (See Kinney v Green [1992] 29 NSWLR 137).
In this matter Greg Walsh represented Mr Meredith in respect of an application by the Law Society of New South Wales that his name be removed from the Role of Legal Practitioners. Mr Meredith conceded that he had been guilty of professional misconduct in that he had misappropriated monies from his clients as a legal practitioner some years beforehand. His name was removed from the Role.
Mr Fajka had pleaded guilty to an indictment which contained a single count alleging that he had committed the offence of affray in licensed premises at Bradbury. The offence to which he pleaded guilty was contrary to s93 of the Crimes Act and carried a maximum penalty of 5 years. The sentencing judge, Maguire DCJ, imposed a sentence of imprisonment of 2 years with a non-parole period of 18 months.
Greg Walsh did not appear on the sentence but successfully applied for bail on behalf of the applicant pending his appeal to the Court of Criminal Appeal. In the course of the sentencing of the applicant, the sentencing Judge made a finding that he was involved in acts, to wit the stealing of a video tape, which seriously aggravated the facts in respect of which he had entered his plea of guilty. It was argued by Greg Walsh that it was impermissible for the Judge to have made such a finding and such finding was in breach of the principle in De Simino v The Queen [1981] 147 CLR 303.
The New South Wales Court of Criminal Appeal (Hulme J, Simpson J and Howie J) found that it was impermissible for the sentencing Judge to have made such a finding and the application for leave to appeal was granted and the appeal allowed.
The sentence imposed by Judge Maguire was quashed and in lieu, the applicant was ordered to perform 100 hours of community service.
In this matter Greg Walsh represented the accused in a trial of armed robbery charges. The Crown relied upon DNA evidence in which the accused’s DNA was allegedly found on a balaclava that he was alleged to have been wearing at the time of the commission of the offence. A DNA expert, namely Dr McDonald was obtained on behalf of the accused and it became apparent that the proper procedures/protocols in respect of the taping and recording of DNA samples had not been carried out. Further, the initial testing by the expert’s retained by the Crown was negative to DNA on the part of the accused but subsequent testing demonstrated a test result that was most unusual and the methodology adopted shown to be highly unreliable. The accused was acquitted by way of a directed verdict of not guilty by the trial judge.