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Search warrant

By Paul Gregoire and Ugur Nedim

NSW police executed a search warrant at the home of Brenton Van der Vegt in the NSW town of Bourke on 8 February 2012. They did so after receiving information that the man may have been in possession of child abuse material.

At the time, Mr Van der Vegt was living alone, having separated from his wife after the rocky breakdown of their marriage.

During the search, police located files containing child abuse material on Mr Van der Vegt’s computer, as well as several discs with similar material on them.

The material was found in a locked gun safe, along with a number of other pornographic discs. Several of these discs contained sexual material with unknown adults. One contained Van der Vegt and his ex-wife together, while six of the discs contained “young children in sexual settings.”

Mr Van der Vegt was subsequently charged with two counts of possessing child abuse material, under section 91H of the NSW Crimes Act 1900, which carries a maximum penalty of 10 years imprisonment.

At a jury trial in the NSW District Court in Sydney, Mr Van der Vegt pleaded not guilty to both offences.

His criminal lawyers argued their client had unwittingly downloaded the child abuse material onto his computer, and his ex-wife had planted the discs into his gun safe. They submitted their client only owned the discs that featured adult pornography.

The computer files

At trial, Mr Van der Vegt’s ex-wife admitted that she deleted child abuse material, after she’d accidently come across it. She said she’d done so on 20 October 2011 after their separation, not in June 2010 while they were still together, as the defence team argued.

Van der Vegt’s ex-wife explained that at the time she deleted the material, the pair were negotiating a settlement of their matrimonial property.

Despite being a child care welfare worker and it being mandatory for her to report such material, the defendant’s ex-wife decided not to notify authorities straight away, so as not to prejudice the settlement negotiations.

Instead, she claimed to have reported it to police several days after the settlement was finalised.

The discs in the gun safe

The defence submitted that Van der Vegt had no knowledge of the child abuse discs being in the safe, and that his ex-wife had placed them in there. Her motive, they said, was “bitterness” and revenge due to their acrimonious separation.

His ex-wife testified that she had no knowledge of where the safe was, nor where the keys were. She gave evidence that she was only aware that her former husband was “talking about getting” a safe.

The woman acknowledged that she had accessed the defendant’s house without permission while he was away, by deceiving his real estate agent in order to obtain a key. She also admitted taking property whilst there.

During cross examination, she accepted that she had the capacity to access the computer and burn discs when she was at the residence.

Police search

The police search of Van der Vegt’s house was captured on video camera. The recording along with the transcript were submitted as evidence. The two senior constables cautioned Van der Vegt prior to executing the search warrant.

NSW police senior constable Campbell found the discs whilst searching the safe. They were in similar containers labelled in the defendant’s handwriting. As the discs were taken out of the safe, Campbell and Van der Vegt had a verbal exchange regarding the contents.

The officer stated that the first two discs were labelled “mixed video.” Van der Vegt then said, “Mate, as far as I am aware, mostly adult by the look of it, it’s adult.” The officer confirmed that he meant pornography, and when more discs were produced, the defendant said they were the “same thing.”

Police found the defendant’s fingerprint on one of the discs that featured child abuse material.

Van der Vegt decided to take the witness stand at trial. In cross examination, the he prosecution put it to him that he had never said words to the effect of, “‘Look, I’ve never seen that DVD before in my life”, or otherwise denied knowing about them. The defendant conceded this.

In its closing submissions, the prosecution emphasised this point – highlighting to the jury that Van der Vegt did not deny knowing about the discs or say that he had accidentally downloaded the material. This, according to the prosecution, was a recent invention that was entirely inconsistent with the defendant’s statements to police during the search.

The verdict

As is customary in jury trials, District Court Judge Toner directed the jury that the defendant must be presumed innocent unless the prosecution had proved to its “satisfaction beyond reasonable doubt he was guilty as charged.” His Honour also reminded them that his ex-wife had lied to the real estate agent to gain access to the property.

On 6 June 2014, the jury found Mr Van der Vegt not guilty on the first count of possessing child abuse material relating to what was found on the computer. However, they found him guilty on the second count of possessing the material that was found on the discs locked in the gun safe.

Appealing the conviction

Mr Van der Vegt appealed his conviction to the NSW Court of Criminal Appeal (NSWCCA), which heard the case on 15 August 2016. He didn’t appeal his sentence, as he had already served the term in its entirety by the date of the appeal.

The sole ground of appeal was that a miscarriage of justice had taken place, as the prosecution had “impugned” Van der Vegt’s right to silence during the search.

The appellant’s lawyers argued that, during the cross examination and closing submissions, the jury had been asked to make an adverse inference against Van der Vegt’s silence regarding the discs containing the child abuse material, as he’d made no direct mention of them while police were questioning him.

Van der Vegt’s barrister Grant Brady took particular issue over the prosecution’s remark, “At no point in time did he say I’ve never seen that before, because he knew what was in them and he knew what was on them.”

Mr Brady argued that the jury could only understand this as the prosecution stating that Van der Vegt “had demonstrated a consciousness of guilt by reason of his silence.”

The barrister also took issue over the brevity of the process for displaying the discs during the search, and that they weren’t individually presented to his client.

The NSWCCA’s findings

NSWCCA Justice Button did not “accept that any miscarriage of justice has occurred in this case,” as Van der Vegt had not “exercised his right to silence at all during the search.”

His Honour noted that the conversation between Van der Vegt and police during the search had been a continuous one, with no significant pauses.

“In particular, it is not the case that the applicant spoke freely with regard to the discs that showed sexual activities of adults,” His Honour continued, “but then remained silent with regard to the discs containing child abuse material.”

Mr Van der Vegt was found to have neither exercised his right to silence partially or completely, the justice reasoned. That right had not therefore been impugned during the trial.

To the contrary, what was said in the witness box by Van der Vegt was inconsistent with what he had said to police at his home.

For these reasons, Justice Button dismissed Mr Van der Vegt’s appeal.

Dilution of the right to silence in NSW 

On 1 September 2013, NSW passed a law which inserted section 89A into the state’s Evidence Act.

That section provides that during “official questioning” by police for a “serious indictable offence” (ie one which carries a maximum penalty of at least five years’ imprisonment), an unfavourable inference can be drawn from the suspect’s failure or refusal to mention a fact that:

  • He or she could reasonable have been expected to mention at the time, and
  • That is later relied on in his or her defence.

Official questioning” means questioning by an investigating official in connection with the investigation of the commission or possible commission of an offence, and includes questioning during an investigation, interview or search.

However, the section only applies if:

  • A “special caution’ was given to the suspect, containing words which inform him or her of the effect of failing to disclose facts which may be relevant,
  • That caution was given before the failure or refusal to mention the relevant facts,
  • The caution was given in the presence of an Australian legal practitioner (lawyer) who was acting for the suspect at that time, and
  • The suspect had been given the opportunity to consult a lawyer.

The requirement for the presence of a lawyer has effectively meant that lawyers rarely attend police interviews anymore, as this can jeopardise their clients’ right to silence.

It has created a situation where suspects no longer benefit from the protection of lawyers during interviews, leaving them susceptible to police pressure and making it more likely that they will speak with police – usually to their detriment.

nsw-courts

By Paul Gregoire and Ugur Nedim

Over the last four years, the NSW criminal courts have seen a marked increase in delays and workloads, according to the latest NSW Bureau of Crime Statistics and Research (BOCSAR) figures.

These increases have been spurred on by the rapid growth in arrests that police have been carrying out over this same period.

NSW police are making more arrests despite the fact that crime rates in this state have dropped to a forty year low. Crime across NSW has either declined or remained stable in most major categories over the two year period ending December 2016.

“Last year NSW police put more than 244,000 people before the NSW courts, an increase of 14 percent on the corresponding figure for 2012,” Dr Don Weatherburn, director of BOCSAR wrote in a statement. “That’s close to the record set just after the heroin epidemic peaked in 2001.”

As Dr Weatherburn has pointed out, crime rates in NSW have actually been declining since 2001, after the heroin drought began. The doctor believes the shortage of this drug was a major contributing factors that led to the drop in crime.

NSW District Court

When a person is charged with a strictly indictable offence, they will ultimately appear at a committal hearing in the Local Court.

This hearing is to decide whether the prosecution has enough evidence for the case to be sent to the District or Supreme Court to be heard by a judge and jury. This is referred to as being committed for trial.

The latest BOCSAR figures found that the median delay in the NSW District Court between being committed for trial and the finalisation of the trial rose by 56 percent between 2012 and 2016. This was an increase from 243 days to 378 days.

The time between arrest and finalisation of a trial rose to 714 days, which was up from 512 in 2012.

Overworked courts

There’s also been a substantial increase in the workload of the NSW District Court over this same period.

The number of matters committed for trial rose by 35.4 percent, while those committed for sentence increasing by 37.6 percent.

Being ‘committed for sentence’ is when a person enters a plea of guilty in the Local Court, and they’re subsequently sent to a higher court to be sentenced.

Between 2012 and 2016, the number matters that were finalised by a trial increased by 39.7 percent, while the number finalised by a sentence rose by 36.1 percent.

The increase in workload for the NSW District Court has primarily come from cases involving illicit drug offences, sexual assault and related offences, and theft and related offences.

There were an additional 577 defendants on drug offence charges whose cases were finalised before the court. There were an extra 283 defendants on sexual assault charges that had finalised court appearances. And there were 225 more defendants on theft offences.

NSW Local Court

There’s also been a substantial increase in the workload of the NSW Local Court in recent years.

There were 18,445 more cases finalised by the local courts last year, than in 2012 – a 17 percent increase.

The increase in the NSW Local Court workload is primarily attributed to three types of offences.

The first is an increase in traffic and vehicle regulatory offences – these include people accused of driving while their licences are disqualified or suspended. There were an additional 8,976 defendants on these types of charges.

Justice procedure offences, or bond breaches, were the second highest contributor. There were an additional 6,177 defendants on these sorts of charges.

Acts intended to cause injury or assault were the third highest. These accounted for an extra 2,747 cases that were finalised before the local courts.

Increasing numbers on remand

Over the period 2012 to 2016, there was a substantial increase in the proportion of defendants being refused bail – a 19.8 percent increase. In 2012, 5.9 percent of defendants were refused bail, while in 2016, the figure rose to 7 percent.

BOCSAR custody statistics released earlier this month outline that at the end of March this year, the adult prison population in this state was 12,955 people – an all-time high.

A whopping 58 percent of this increase is attributed to a rise in the numbers of inmates on remand – those who’ve been refused bail and are waiting on their cases to be finalised. Many of these people will eventually be released after their charges are withdrawn or thrown out of court.

In 2016, 2,638 defendants had their bail refused in all levels of the courts: Supreme, District, Local and Childrens.

Of these remand inmates, 173 were eventually found not guilty on all charges. This means these people were kept in detention with long waits for court appearances, even though, in the end, they were found to have done nothing wrong.

Recidivism rates in NSW are getting close to 50 percent, meaning that almost half the people behind bars, return to prison within two years. So detaining innocent people inside prison for prolonged periods means they’re more likely to return to prison after they’ve been released.

In effect, the NSW prison system is potentially producing its own revolving door prisoners.

Increasing incarceration

There’s also a rise in the number of people being sentenced to prison. The proportion of convicted offenders who were given prison sentences increased by 22 percent. It was up from 8.4 percent in 2012 to 10.2 percent in 2016.

As NSW police arrest more people, and the courts send more behind bars, the NSW government is making sure there will be enough room for them. Last year, the government announced that it is investing $3.8 billion to fund an extra 7,000 prison beds in this state.

This is an almost 50 percent increase in the capacity of NSW adult correctional facilities. So it seems the government is set to continue on with its tough on crime stance and fill up these new prison beds, despite the fact that crime is actually falling.

Downing-centre-court

By Sonia Hickey and Ugur Nedim

Fans of Judge Judy and dramas like Boston Legal, Ally McBeal and LA Law can now enjoy all the drama of real life court cases, straight from the courtrooms of the Downing Centre.

For the first time ever in Australia, crews have been given unprecedented access to all areas of Australia’s busiest court complex to film an observational documentary series.

Producers were given time with magistrates, court staff, defendants and complainants, and several courtrooms were decked out with small fixed-rig cameras to capture the highs and lows of court proceedings.

The 10-part series, which is due to air on Foxtel later this year, gives viewers a front row seat to the legal process, including the way cases are run and how decisions are made.

Central to the series are the court’s twelve magistrates, who are responsible for deciding the futures of tens of thousands of people every year.

Education and entertainment

Throughout the series, magistrates offer additional commentary to explain what’s happening in the featured cases.

Each 30-minute episode follows two or three cases, from drink driving to drug possession, and assault to larceny.

Until recently, filming inside courtrooms was severely restricted in New South Wales and our legal system has been slow to adopt advances in technology, and new ways to give the community an insight into the operation of the courts.

This is different to countries like the United States, where the broadcasting of entire cases has been occurring for decades.

Concerns about such broadcasting revolves around the privacy of participants, security issues and the risk of bringing the legal system into disrepute by turning magistrates into celebrities and courtrooms into scenes of soap operas.

However, privacy concerns were addressed by inviting those filmed to sign release forms, and the benefits of providing the community with an understanding of the court system are seen as outweighing the risk of turning proceedings into a spectacle.

Positive impact of broadcasting

It is hoped the series will not only be educational, but act as a deterrent to would-be offenders.

The show also aims to shine a spotlight on social problems, and questions of ethics and morality that exist in our society – demonstrating that issues are not always black and white, or ‘easily clarified.’

Viewers are set to see for themselves that magistrates are not as ‘out of touch’ as radio shock jocks and tabloid newspapers would like the public to believe. Rather, each case calls for a range of factors to be taken into account, and magistrates are required to give reasons for their decisions.

As Judge Henson of the court explains: “Research shows that confidence in the criminal justice system is higher amongst people who understand how it works and this program will give the community an insight into how magistrates make their decisions.”

Indeed, those words are backed up by studies which have found that members of the public who are given all of the facts will often hand-down penalties equivalent to, or more lenient than, those delivered by magistrates and judges.

The series, which is called Court Justice: Sydney’, was filmed over a six-week period last year and producers expect that it will be a big hit. If it meets expectations, it may ultimately be franchised.

Executive Producer for CJZ, Michael Cordell says: “Gaining television access to our courts is one of the last frontiers of observational filmmaking in Australia. We’ve seen a lot of police shows, ambulance shows and the like, but we rarely get a chance to observe what happens in our courts, which are critical to the way society functions.”

Channel-nine

In 2014, A Current Affair reporter Ben McCormack sat in the Downing Centre District Court as former Hey Dad‘ star Robert Hughes was found guilty of child sex offences.

Today, the sexual assault complainants’ champion – who liaised with the victims of Hughes and others – was himself arrested and charged with sexually inappropriate conduct towards children.

It has been reported that police detectives launched an investigation into the 42-year old after a tip off from the Joint Anti Child Exploitation team. Officers arrested Mr McCormack at 7.30am this morning during a vehicle stop at Moore Park and conveyed him to Redfern Police Station.

Police then executed search warrants at Mr McCormack’s home in Alexandra and at the offices of A Current Affair in Willoughby, where they seized a mobile phone, computers, USBs and external hard drives.

“Police will allege in court the man was engaged in sexually explicit conversations about children with an adult male and discussed child pornography,” a police spokesperson stated.

Mr McCormack was charged with ‘using a carriage service for child pornography material’.

The charge

‘Using a carriage service for child pornography material’ is an offence under section 474.19 of the Criminal Code Act 1995 (Cth).

For a person to be found guilty, the prosecution must prove beyond reasonable doubt that he or she:

  1. Accessed material, or caused material to be transmitted to him or herself, or transmitted, made available, published, distributed, advertised, or promoted material, or solicited material, and
  2. The person used a ‘carriage service’ to do this, and
  3. The material was ‘child pornography material’.

The prosecution must establish that the defendant ‘intended’ to do one of the acts listed in subsection 1 above, and that he or she was at least ‘reckless’ as to whether the material was ‘child pornography material’.

The maximum penalty for the offence is 15 years’ imprisonment.

Mr McCormack has been granted conditional bail and is scheduled to appear in Downing Centre Local Court on the 1st of May.

He is entitled to the presumption of innocence unless and until the prosecution is able to prove the case against him.

Definitions

Section 7 of the Telecommunications Act 1977 defines a ‘carriage service’ as “a service for carrying communications by means of guided and/or unguided electromagnetic energy”; which includes fixed and mobile telephones and the internet.

Section 473.1 of the Criminal Code Act defines ‘child pornography material’ as:

(a) material that depicts a person, or a representation of a person, who is, or appears to be, under 18 years of age and who

(i)  is engaged in, or appears to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii)  is in the presence of a person who is engaged in, or appears to be engaged in, a sexual pose or sexual activity;

And does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(b)  material the dominant characteristic of which is the depiction, for a sexual purpose, of:

(i)  a sexual organ or the anal region of a person who is, or appears to be, under 18 years of age; or

(ii)  a representation of such a sexual organ or anal region; or

(iii)  the breasts, or a representation of the breasts, of a female person who is, or appears to be, under 18 years of age;

In a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(c)  material that describes a person who is, or is implied to be, under 18 years of age and who:

(i)  is engaged in, or is implied to be engaged in, a sexual pose or sexual activity (whether or not in the presence of other persons); or

(ii)  is in the presence of a person who is engaged in, or is implied to be engaged in, a sexual pose or sexual activity;

And does this in a way that reasonable persons would regard as being, in all the circumstances, offensive; or

(d)  material that describes:

(i)  a sexual organ or the anal region of a person who is, or is implied to be, under 18 years of age; or

(ii)  the breasts of a female person who is, or is implied to be, under 18 years of age;

And does this in a way that reasonable persons would regard as being, in all the circumstances, offensive.

Defences

Section 474.21 of the Criminal Code Act provides that a person if not guilty of ‘using a carriage service for child pornography material’ if he or she convinces the court on the ‘balance of probabilities’ (ie more than 50%) that the conduct:

(a)  was of public benefit; and

(b)  did not extend beyond what is of public benefit.

The conduct can only be of public benefit if it was necessary for:

(a)  enforcing a law of the Commonwealth, a State or a Territory; or

(b)  monitoring compliance with, or investigating a contravention of, a law of the Commonwealth, a State or a Territory; or

(c)  the administration of justice; or

(d)  conducting scientific, medical or educational research that has been approved by the Minister in writing for the purposes of this section.

An additional defence is available for law enforcement officers acting in execution of their duties.

Taxi-1

A 45-year old taxi driver has been charged with indecently assaulting a 25-year old woman during a trip between the Sydney CBD and Leichhardt.

The driver picked up the woman from outside a licensed venue in George Street, Sydney and drove her to Norton Street in Leichhardt.

Police allege the driver “indecently assaulted the woman a number of times” en route, then “attempted to stop the woman” after she got out of the cab.

The complainant reported the matter to Leichhardt Local Area Command who commenced an investigation, resulting in the man attending Glebe Police Station at 2pm yesterday.

The driver was charged with indecent assault and common assault, and bailed to appear in Downing Centre Local Court on 13 January 2017.

Indecent Assault in NSW

Section 61L of the Crimes Act 1900 contains the offence of ‘indecent assault’, which carries a maximum penalty of five years’ imprisonment in the District Court, or two years if the case remains in the Local Court.

A person is guilty if the prosecution is able to prove beyond reasonable doubt that they ‘assault[ed] another, and at the time of the assault or immediately before or after it… also commit[ed] an act of indecency’.

An act of indecency must have some sexual connotation, and there must be an intention to obtain sexual gratification. As the NSW Judicial Commission explains:

“For an assault to be “indecent” it must have a sexual connotation. It will have that connotation where the touching or threat is of a portion of the complainant’s body, or by use of part of the assailant’s body, which gives rise to that connotation: R v Harkin (1989) 38 A Crim R 296 at 301. However, if the assault does not unequivocally offer a sexual connotation, the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification”

For those who plead guilty or are found guilty of indecent assault, the court can impose any one of the following penalties:

  • A ‘section 10’, which means guilty but no criminal record. This may be accompanied by a good behaviour bond.
  • A fine.
  • A ‘section 9’ good behaviour bond, which comes with a criminal record.
  • A community service order.
  • An intensive correction order.
  • A suspended sentence; or
  • Prison.

The applicable penalty will depend on a range of factors, including the seriousness of the conduct, whether a plea of guilty was entered, the defendant’s age, any mental condition/s suffered, demonstrated remorse, the likelihood of committing further offences etc.

Woman who are using taxis alone are advised to sit in the back seat, and to immediately report any untoward advances to the relevant taxi company and authorities after recording the driver’s details.

Crime figure

By Blake O’Connor and Ugur Nedim

The southern Sydney suburb of Earlwood was the scene of a public execution earlier this week, when 35-year old crime boss Pasquale Barbaro was shot dead while leaving an associate’s house.

Mr Barbaro was the target of a failed assassination attempt in November 2015, when a gunman fired a barrage of bullets at him on Balmain Road in Leichardt. The attempt occurred a month before he was due to face charges of manufacturing the drug ice on rural properties in NSW.

Monday’s execution style hit involved at least one gunman, who is reported to have jumped out of an Audi four-wheel drive and fired up to seven shots.

Three Pasquale Barbaros

The Griffith-based Barbaro crime gang is said to be affiliated with the Calabrian Mafia, a powerful Italian underworld group. Barbaro’s Grandfather, also named Pasquale, suffered the same fate in 1990, and another Pasquale Barbaro was shot dead with underworld figure Jason Moran in 2003.

Yet another related Pasquale Barbaro is currently serving thirty years in prison over the largest ever ecstasy bust in Australia, which occurred in 2007 when a shipping container full of tomato tins containing the drug was discovered in 2007.

Timing of the hit

The latest hit was executed one night before a Sydney Court was due to be played phone recordings of Barbaro speaking with Farhard Quami, the head of street gang Brothers for Life.

No stranger to trouble

Mr Barbaro had a number of run-ins with business partners and the law.

Barbaro and a business associate, Aaron Sabbah, opened a bar and restaurant in Glebe which later collapsed owing almost $300,000 in rent, causing tensions between the pair and those from which they obtained finance.

Sabbah was recently imprisoned for 12 months after demanding money from a mechanic shop owner whilst wielding a large black dildo in the company of two stocky men. During the sentencing proceedings in Downing Centre District Court, Judge John North stated:

“… the offender can be seen to be carrying a large black dildo in his right hand, which he is swinging as he walks in”.

Why was Barbaro killed?

There are several theories as to why Mr Barbaro was assassinated, none of them conclusive. Crime Journalist Keith Moor believes other underworld figures suspected Barbaro of being a police informant:

“The suspicion is he was probably killed for breaking the code of Omerta which is the code of silence”.

But given the number and nature of Barbaro’s underworld associations, and the friction caused by some of his dealings, the investigation into his murder could be a long and drawn out process.

Lawyer Gunned Down

Barbaro’s execution is certainly not the first time a person suspected of having links to the Calabrian Mafia has been assassinated.

In March of this year, criminal defence lawyer Joseph Acquaro was gunned down outside his Brunswick restaurant in Melbourne. This was after Acquaro warned by police in June 2015 that his life was in ‘grave danger’.

Acquaro represented a number of Calabrian underworld figures, including convicted drug supplier Francesco Madafferi and crime figure Rocco Arico.

Since the beginning of 2012, nearly two dozen people have died and more than 100 other have been injured in Sydney shootings.

Fairfield in Sydney’s west is reported to be the ‘most dangerous suburb in Sydney’, with the highest number of shootings, including four within a two week period.

By Sonia Hickey and Ugur Nedim

A Magistrate at Downing Centre Local Court recently made the decision to lift a suppression order on the Sydney school at the centre of allegations that a female teacher had a sexual relationship with a male student.

Magistrate Jacqueline Milledge declined to extend an interim suppression order over the name of the school, saying it is important for the community to be aware "this matter is afoot".

Her Honour did, however, suppress the identity of the teacher in order to protect students, considering more students may come forward as victims or witnesses.

No plea against charges

The teacher, who worked at Sydney Grammar School – one of Australia’s most prestigious boys’ schools where school fees cost $30,000 per year – did not attend court for the hearing.

As the charges are ‘strictly indictable’ – which means they will need to be finalised in a higher court – the defendant’s lawyers were not required to enter a plea, and they refrained from doing so.

The teacher has been charged six counts of having ‘sexual intercourse with a person aged between 17 and 18 years under special care’ in contravention of section 73 of the Crimes Act, which carries a maximum penalty of four years’ in prison, and one count of indecent assault.

The court heard that the teacher and the boy were involved in extra-curricular school activities that required them to spend time alone together.

It is alleged a sexual relationship developed in that context, which lasted two to three months.

The student allegedly reported the relationship to a school counsellor last month.

Sydney Grammar ‘supports parents and students’

Court documents claim some of the offences took place at the woman’s home, where she is alleged to have kissed and had sex with the boy twice. 

It is further alleged the teacher had sex with the student four times at the school between February 1 and March 31 this year.

Sydney Grammar School has released a statement confirming NSW Police charged a member of its staff “with serious misconduct of a sexual nature”.

The statement said that as soon as the school became aware of the allegations, the teacher was suspended and banned from contact with students, pending an outcome on the matter.

“Parents at the school were written to about the situation, and support has been provided.”

Sexual abuse in private schools

The case raises further concerns about the misconduct of teachers in elite schools, several private Sydney schools having been named in the Royal Commission into Institutional Responses to Child Sexual Abuse.

Those schools include Knox Grammar, Trinity Grammar School, The King's School and St Ignatius College, with allegations going back as far as the 1980s.

The Sydney Grammar school teacher was granted bail last week, and Ms Milledge adjourned the proceedings until December 8th.  

Downing Centre window

There is no list of words which are considered to be ‘offensive’ under NSW law.

Whether a word or phrase is offensive depends on the context in which it is used, and whether it would ‘wound the feelings, arouse anger or resentment or outrage in the mind of a reasonable person.’

The words must be said in or near a public place or school to constitute offensive language under the law.

Sydney Protest 

In September 2015, Christian Democratic Party leader MP Fred Nile led a protest in Sydney against proposed same-sex marriage laws.

A counter protest was conducted at the same time by members and supporters of activist group Community Action Against Homophobia (CAAH).

During the protest, CAAH convenors Cat Rose and Patrick Wright were issued with criminal infringement notices (CINs) for offensive language after chanting ‘fuck Fred Nile’ and ‘bigots fuck off’. 

CAAH member and LGBTI Officer for the National Union of Students, April Holcombe, received a CIN days after the event for saying:

“We need to make a stand against them and make sure us using bad language about the fuckers is nothing compared to the epidemic of suicides there people contribute to”.

Ms Holcombe later said:

“I was called 48 hours after the protest to be told that I had sworn, that this was on police footage, and that my $500 fine was in the mail… The police are keeping tabs on protesters and trying to intimidate them with shady penalty notices”.

Police then realised the CINs wereinvald because they cannot be issued during a genuine demonstration or protest.

They then issued Court Attendance Notices instead.

In Court 

The case reached a defended hearing before Magistrate Bradd in Downing Centre Local court yesterday, where the trio faced fines of up to $660 and criminal records.

The court heard Ms Rose told police that “fuck off is part of the common vernacular”, to which police responded “it’s not part of children’s vernacular” – implying kids were around.

In delivering judgment, His Honour said there was no evidence Ms Rose used the phrase “fuck off” when speaking to police – which may have amounted to offensive language.

He noted that whether the word “fuck” is part of a child’s vernacular “depends on the words that a child listens to from others”.

He remarked that phrases like “you fucking beauty” and “fucking hell” are unlikely to be held offensive in this day and age.

His Honour found that the phrase “fuck Fred Nile” was used to dismiss an argument against marriage equality, and was not sufficient to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable person.

He found all three defendants not guilty of the charge.

The Aftermath

After court, Mr Wright declared:

“This is a big win for free speech and the right to protest… the police have attempted to scare marriage equality activists out of speaking up against bigotry. They have failed.”

Ms Rose stated:

“… with marriage equality still banned by law, the homophobes haven't been defeated. We’ll keep protesting until we have our rights, and you can expect a few f-bombs along the way.”

Ms Hearn’s solicitor added that offensive language laws have:

“for too long been used as a social control applied disproportionately against marginalised and vulnerable people”.

It seems the NSW government may still have some way to go before completely silencing the voices of protesters.

The next marriage equality rally will be held on 26 November at Sydney Town Hall.

 

Defendants seeking justice and victims wanting closure are being left waiting as extensive court backlogs place extra pressure on our already struggling criminal justice system. 

It has been reported that a seventeen-year old complainant in a sexual assault case has been unable to attend school for 5 years, waiting for her alleged tormenter – her uncle – to be brought to justice and give her some closure. 

On the other side of the coin, defendants – many of whom ultimately have their charges withdrawn or thrown out of court – are increasingly being held behind bars for months or even years awaiting the finalisation of their cases.

Justice Delayed…

The NSW District Court is struggling to clear its backlog of cases. 

At the end of July this year, 2042 criminal trials and 1195 sentencing cases remained outstanding in the District Court – nearly double its caseload at the end of 2010, when there were 977 pending criminal trials and 722 sentencing matters.

Police Preferred Over Courts

Government funding to the NSW Police Force has risen significantly in recent years despite declining crime rates, but similar levels of extra funding have not been extended to our courts in spite of vastly increased caseloads.

Criminal Defence Barrister Phillip Boulten SC has criticised the state government’s failure to adequately funding courts, saying:

“[the] government has provided ample resources for police investigations … [and] the police have been very efficient in arresting people… [but] there hasn’t been the same level of resources applied to the justice system”.

Harsher bail laws have led to a sharp rise in people being ‘held on remand’; locked up while awaiting the outcome of their cases. Statistics released by The Bureau of Crime Statistics and Research (BOCSAR) suggest that one-third of our state’s 12,550 inmates are  now on remand.  

Of concern is the fact that nearly 40% of all defendants held on remand in 2014 did not ultimately receive a prison sentence – indicating they were either innocent or should never have been behind bars in the first place. And locking people up is expensive – the average cost to taxpayers for keeping an adult in prison is $237.34 a day, and nearly $700 a day for each child.

No Compensation

Article 14(6) of the International Covenant on Civil and Political Rights (ICCPR) recognises a right to compensation for those who have been wrongfully convicted:

“when a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment is entitled to compensation according to law”.

However, this right has not been recognised by Australian law. And unlike in many parts of the US, Australian jurisdictions do not have statutory schemes for providing compensation to those who are wrongly imprisoned.

This means that those who are accused of crimes and held behind bars for long periods of time, only to have the charges withdrawn or dismissed, are rarely able to achieve compensation – unless they can prove an abuse of process, malicious prosecution or other form of serious misconduct on the part of the prosecution
 

AFP

A NSW police officer has been sentenced to a 15-month section 9 good behaviour bond – which comes with a criminal conviction – over the assault of a man being held in custody at Dee Why police station on Anzac Day last year. The incident is yet another example of ongoing police brutality and abuse of powers in the state.  

Last Friday, Leading Senior Constable Shaun Moylan was found guilty of two assault charges in Sydney’s Downing Centre Local Court. The 41-year-old officer was captured on a CCTV camera violently pushing Mark Adamski twice in a charge cell. 

Mr Adamski was affected by alcohol when he was arrested hours earlier over an alleged domestic assault in Narrabeen. The 32-year-old – who owns a recruitment agency – was being held in the cell when he and Moylan had a heated verbal exchange. 

Evidence at the hearing

During the defended hearing, CCTV footage was played showing Moylan open the cell door and confront Adamski, before pushing him in the chest. The constable leaves, the two continue to argue and then Moylan re-enters the cell pushing Adamski once more, this time in the throat. 

The second push resulted in Adamski’s head slamming against the back of the cell wall. 

After the assault, Adamski pleaded with police to call an ambulance, but no medical attention was offered. On being released, Adamski was forced to catch a bus to Manly Hospital, where he was treated for injuries, which included a hematoma on the back of his head.

At the initial court hearing in May, Moylan claimed he was innocent, despite the evidence contained in the CCTV footage. 

His criminal defence barrister cross-examined Adamski to the effect that he had “downplayed” his role in the incident and “exaggerated” Moylan’s. 

However, other police officers on duty at the time backed up Adamski’s version of events.

Senior Constable Daniel Gill told the court that Moylan had used “significant” force and “cupped his hand” around Adamski’s throat during the second push. He also confirmed that Adamski had been requesting medical help, and that none was forthcoming. 

Another officer working at the station that night, Constable Brendon Kitchener, testified that the use of force had disturbed him to the point that he reported it to other colleagues. 

At a defended hearing in July, it came to light that Moylan had joined Constable Zoe Barrett at the station desk following the assault and remarked, “I shouldn't have gone in there.” 

Barrett said that Moylan, who was the acting supervisor at the time, went to the custody area to help another officer. She said she could hear loud noises coming from the “area and then it went quiet.” 

The officer also told the court that she looked up at a monitor screen and saw a man falling backwards in the cell with Moylan standing at the open door.  

On the following day, Constable Moylan – who’d been suspended from duties on full pay since July 2015 – claimed he was acting in self-defence and gave his version of the events. 

Moylan testified that on the night of the incident, Adamski had been yelling obscenities, so he decided “as a courtesy” to open the cell door to speak with him and calm him down. He claimed that this method had worked for him in the past.

He said that upon doing so, he immediately felt threatened, claiming that Adamski clenched a fist and said, “I will fucking have you.” At this point, the constable said he thought he was about to be attacked.

But last Friday at Downing Centre Local Court, Magistrate Susan McIntyre dismissed Moylan’s self-defence claim as “almost absurd.” She said the CCTV footage shows that Adamski didn’t move towards the constable “to any significant extent” and remained “well within the confines of the cell.” 

She found him guilty of the assault occasioning actual bodily harm and common assault.

Sentencing

During the ensuing sentencing hearing, officer Moylan's barrister submitted that his client had already paid a “heavy price” over the incident, and that any criminal record would impact on his future employment. He argued the constable should be given a Section 10, which would mean avoiding a criminal record. 

However, Magistrate McIntyre was unsympathetic, noting that the officer was “in a special position” and should not have abused his power. She sentenced him to a Section 9 bond, which carries a conviction.

As for Mark Adamski, he was found not guilty of all charges brought against him.

Police brutality

Of course, this is not the first case involving an abuse of powers by NSW police. 

There’s the high profile case of Jamie Jackson Reed, who was restrained by police at the 2013 Gay and Lesbian Mardi Gras. In 2014, Magistrate Michael Barko found that police had used excessive force when apprehending the 18-year-old man. 

And just last month, English backpacker Liam Monte announced he was suing NSW police over an institutional-cover up of his alleged assault, which involvied an off-duty police officer on April 19 2013. After a slight altercation in a McDonald’s on George Street in Sydney’s CBD, several men followed Monte to the entrance of the restaurant and one, off-duty police officer Osvaldo Painemilla produced a badge and said he was under arrest. 

Believing the badge to be a fake, Monte grabbed it and left. Painemilla’s friends then pursued Monte up George Street and pulled him out of a taxi. A bus driver who witnessed the assault said the backpacker was struck about ten times in the face as he lay on the ground. 

Monte was taken to hospital suffering severe facial bruising and a suspected fractured eye socket. 

After being discharged from hospital, detectives from the Rocks police station arrived at Monte’s hostel and arrested him for stealing. 

On hearing the case in 2014, Magistrate Michael Barnes described it as an abuse of process. He concluded that police had brought the prosecution against Monte to "somehow negate the suggestion that the force applied” to him “was otherwise completely unjustifiable.”

Magistrate Barnes found the evidence supported the police charges of stealing the badge and gave Monte a Section 10, which means he escaped a criminal record.