Papers and Presentations

MENTAL HEALTH FOR MEMBERS OF THE LEGAL PROFESSION –
A MODERN CONUNDRUM[1]

Greg Walsh OAM

INTRODUCTION

I have been a legal practitioner for 45 years and as an articled clerk prior to my admission, I
have nearly 50 years of experience in the practice of law.

I have welcomed the opportunity of not only appearing in the State of NSW but all States of
Australia including as trial Counsel and also in respect of disciplinary matters.

By way of background, I was honoured to serve as a councillor at the Law Society of NSW
and also as a member of a number of committees, including a task force that examined many
years ago this very issue. As a result of the work of that task force, there was set up by the Law
Society of NSW a system for advising legal practitioners which is now known as the Senior
Solicitor’s Scheme. I am proud to be a member of that Scheme. In these circumstances and
having regard to the fact that like all members of the community, we bring to our work our
own life experiences and common sense, the issue of mental illness for not only legal
practitioners but the community is one of much importance.

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[1] The author acknowledges the assistance of Dr Olav Nielssen and Dr Andrew Ellis, Forensic
Psychiatrists, the Black Dog Institute and the Law Society of NSW

Judges, juries and prejudicial publicity: Lessons from empirical legal scholarship – by Rebecca McEwen; John Eldridge

In April 2014, former ‘Hey Dad!’ star Robert Hughes stood trial in the NSW District Court charged with the commission of serious sexual offences. After the jury delivered a guilty verdict, Greg Walsh, Hughes’ lawyer, remarked that ‘having regard to the enormous extent and prejudicial nature of the publicity it was virtually impossible to get a fair trial’. Judge Zhara, who presided over the trial, refused an application by Hughes to have the jury discharged on the basis of this publicity.

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Eye Movement Desensitisation and Reprocessing and Memory: A Dilemma for the Criminal Justice System – Greg Walsh OAM

The function of memory in the judicial system is a vital one and in recent years experts have sought to turn the science of memory “on its head”, causing it to become as malleable a concept as these experts seek to make it. This article draws specific attention to the role of Eye Movement Desensitisation and Reprocessing therapy (EMDR) in the justice system, its impact on the operation of memory and the potential problems this creates for the legal system. In doing so, reference will be made to the procedural manual of EMDR therapy, as well as scientific literature and legal commentary on the process and its effect on patients. In drawing this material together, it will be concluded that the occurrence of false memories in treatment settings has been wholly underestimated. This, it is argued, must be urgently addressed in order to prevent miscarriages of justice.

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Greg Walsh OAM[1]

Presented as part of a Community Conference
Toongabbie Legal Centre

28 November 2020

As one of our greatest Jurists, Michael Kirby said “the protection of our liberties does not ultimately depend on Parliaments or even the Courts, it depends on the love of the people for liberty.”

INTRODUCTION

Police play a very important role in our community especially in the context of protecting citizens from harm. They are afforded extensive powers to fulfil such objects. This paper seeks to address the importance of citizens rights in the context of Police Powers. 

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Greg Walsh OAM^[1]

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Presented as part of the Criminal Law CLE Conference

Toongabbie Legal Centre

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28 September 2019

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One of our greatest Jurists, Michael Kirby said “the protection of our liberties does not ultimately depend on Parliaments or even the Courts, it depends on the love of the people for liberty.”

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INTRODUCTION

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1. As Justice Kearney of the Northern Territory Supreme Court observed:

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   “It is a basic obligation of a police officer to be fully aware of limitations on his power to arrest, since the citizens’ right to personal liberty under the law is “the most elementary and important of all common law rights””.^[2].

2. As His Honour observed, a citizen’s right to personal liberty is at the cornerstone of all common law rights. Deane J in Donaldson v Broomby (1992) 60 FLR 124; 40 ALR 525; 50 Crim R 160 said:“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny”.
3. This paper seeks to address the importance of citizens’ rights in the context of police powers.

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Greg Walsh OAM^[1]

23 January 2017

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This is a strange time, Mister. No man may longer doubt the powers of the dark are gathered in monstrous attack upon this village. There is too much evidence now to deny it. You will agree, sir?

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Reverend Hale in Arthur Miller’s The Crucible

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Introduction

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Allegations of sexual assault polarise people like no other issue. This applies equally to members of the Judiciary and the Legal Profession.

There are those who readily assume that any person against whom an allegation of sexual assault is made must be guilty. There are others who understand the fundamental importance of the presumption of innocence.

The 1980’s and 90’s heralded an enormous interest and focus in respect of issues of sexual assault. This lead to a number of legislative changes in each of the States of Australia. The essential basis for the plethora of reports and legislative changes have been that the criminal law, does not protect persons from sexual assault and that there is an overriding need to obtain greater protection for victims and to have higher conviction rates.

There is no doubting that in terms of pure politics this approach is one of enormous attraction to Governments. The perception is that there is overriding public support for being seen to be active in protecting alleged victims of sexual assault. Further, it is always good politics to be seen to be being hard in respect of criminals.

These trends have seen a major shift away from a “due-process” model to a “crime control” Criminal Justice System. The latter places particular emphasis upon an almost “therapeutic” approach in cases of this nature.

This paper, though dealing with the issue of repressed memory, nevertheless seeks to alert those who work within the Criminal Justice System of the significant danger that a Child Sexual Abuse Industry is very much in operation within Australia and that there needs to be a critical appraisal of whether the momentum has swung too far. The paper will seek to address such issues that may arise involving the trial of persons charged with Sexual Assault. This material will hopefully be of assistance in gaining a greater understanding of human memory and the way in which these types of cases can arise and are investigated.
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