Malicious Prosecution
Greg Walsh OAM
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Open in new tab Racial Stereotyping of Suspects
Greg Walsh OAM[1]
October 2022
The racial stereotyping of persons within our community, is a matter of some considerable concern. Such involves a fixed over generalisation belief about a particular group of people based on their race. It involves discrimination or prejudice of a person or a group of people based on their skin colour, language, religion, customs and or beliefs. It has, as demonstrated in the United States of America for instance, that it can have an enormous negative impact upon our society.
- In Hage-Ali v State of New South Wales [2009] NSWDC 266,[2] the Plaintiff, a young member of the Lebanese community, was arrested with three others as part of a police operation in respect of the supply of cocaine. There was evidence that she had purchased small amounts of cocaine from a supplier. After she was arrested, and as a result of significant threats against her, she nominated her drug supplier and agreed to co-operate in their investigation. At the police station, she was interviewed and provided a statement to police. After police obtained her agreement to give evidence against her supplier, she was released without charge.
- One of the features of the police conduct, was taking her down to the cells and placing her in a position adjacent to a cell where one of the other male persons were situated. Threats were made by police to the effect that is she did not co-operate then she would be put in cell with the other male offenders. Police were also aware that she had been a recent recipient of a major community award from the Prime Minister of Australia and worked for the Attorney Generals Department in NSW. Police threatened her that is she did not co-operate they would ensure that “your name will be splashed on all the newspapers.” She assisted police and after being released, police made good their threat about ensuring her name was publicised to the media.
- Elkaim DCJ[3] was not satisfied that the arrest was justified by s.99(3). His reasons were:
“(a) I do not accept that [the arresting officers] gave individual consideration to the justification for the arrest against the background of [written operational orders] and the plain direction from [a senior officer]…
(b) There was no consideration of matters personal to the Plaintiff as opposed to a general conclusion to this effect: if she has been supplying drugs then there must be a risk of flight, reoffending or destruction of evidence…
(c) In any event there were not reasonable grounds to suspect any of the purposes in s.99(3) needed to be achieved.”
- His Honour said (at para 202):
“There must be, in my view, a deliberate addressing of the purposes in s.99(3) by the police officer concerning the particular person to be arrested. This is not to say that a ‘ticking off of a checklist’ exercise must be undertaken but rather that the facts personal to the person to be arrested must be considered.”
- The Plaintiff also submitted that her arrest was for a collateral purpose, namely to obtain evidence against her supplier. However, His Honour held (at para 213):
“Although there is a strong flavour of the arrest being made for the purpose of obtaining evidence against Mr B I do not think there is enough evidence to make a positive finding to this effect.”
- In Shalhoub v State of NSW [2017] NSW DC 363, Taylor DCJ at [65] said:
“No explanation was proffered as to why the officers gave no evidence about the necessity for arrest. Since this question concerned an officer’s thoughts, only the officer could give relevant evidence. That Officer Love, for example, intended to arrest the front-seated passenger does not, by itself, persuade me that he was “satisfied that the arrest [was] reasonably necessary”, less still that it was reasonably necessary for one of the reasons specified in s 99(1)(b) of LEPRA”.
His Honour at [66] found that:
“no officer gave evidence of a belief that an arrest was reasonably necessary to prevent the continuation, repetition or commission of any offence. The State referred to a repetition of stalking, but as the off-duty female police officer was long gone, the possibility of a continuation of stalking her would be fanciful and was not submitted. No other person who might be stalked was identified.”
- These cases of Hage-Ali v State of New South Wales [2009] NSWDC 266 and Shalhoub v State of NSW [2017] NSW DC 363, provide powerful illustration of the risk of approaching an arrest on the basis of stereotypes about offences or offenders. This can also extend to a classification of particular offences in the context of directions by for instance, a local area commander to arrest all suspects for domestic violence offences.[4]
[1] Greg Walsh: Legal Practitioner, Oatley, Sydney
[2] Greg Walsh acted for the Plaintiff
[3] Now Justice Elkaim of the ACT Supreme Court
[4] See the Excellent Paper by Jane Sanders, Principal Solicitor, The Shopfront Youth Legal Centre, November 2018, Police Powers and Arrest and Detention
Mental Health for Members of the Legal Profession
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
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.
Eye Movement Desensitisation and Reprocessing and Memory
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.
Police Powers
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.
Police Powers and Citizen’s Rights
Greg Walsh OAM[1]
Presented as part of the Criminal Law CLE Conference
Toongabbie Legal Centre
28 September 2019
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
- As Justice Kearney of the Northern Territory Supreme Court observed:
“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]
- 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”.
- This paper seeks to address the importance of citizens’ rights in the context of police powers.
Repressed Memories: A Current Perspective
Greg Walsh OAM[1]
23 January 2017
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?
Reverend Hale in Arthur Miller’s The Crucible
Introduction
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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