NSW Police are investigating into whether perjury charges should be laid against the NSW upper house MP Robert Borsak, after a judge said he had given false evidence in the Supreme Court.

“The Herald revealed last year t”hat Justice Robert McDougall had said Mr Borsak, a Shooters and Fishers Party MP, and an associate gave ”knowingly untrue” evidence during hearings to resolve a commercial dispute.

The finding was referred to the Director of Public Prosecutions by a solicitor for Roy Jackson, a former business associate who was being sued by a company controlled by Mr Borsak and a fellow director, David Christie.


It is understood the matter is being examined by detectives attached to The Rocks police, whose responsibilities include the NSW Parliament.

In his judgment Justice McDougall said Mr Borsak and Mr Christie ”swore and maintained in the face of detailed and forceful cross-examination” that they were provided with copies of the financial statements of a sheet metal company, Osborne Metal Industries, they were about to purchase from Mr Jackson for $1.4 million in 2004.

They claimed the financial statements overestimated the company profits.

However, Justice McDougall found the claim could not be correct, as the documents were not created until nine days after Mr Borsak and Mr Christie claimed to have received them.

 Mr Jackson has since died of a lung condition while Mr Borsak declined to comment.”

Full Story here.

Habeas Corpus and the NSW Department of Corrective Services

Friday 27 July 2012: Kernaghan & Associates made an unprecedented application to the NSW Local Court for a petition for habeas corpus, something not usually done in a Local Court.

The application was bought in circumstances where officers of the NSW Department of Corrective Services working in the cells of Wollongong Court House could not present persons in their custody to the court in a reasonably timely fashion – apparently providing as a reason that they were either understaffed or over-burdened by the numbers of persons in custody.

Aaron Kernaghan, Solicitor who today made the application observed after court, 

“It is unclear if the reason Correctives Officers were unable to present a defendant before the court today are to do with the lack of adequate staff to service the demands at Wollongong Court house or if it is to do with their unpreparedness for the number of persons in custody. Either way, it is an outrage that our justice system is left waiting indefinitely for a person presumed innocent until proved guilty to be produced from the cells for a bail application. 

What if a person who would otherwise be released to bail by a Court is denied that opportunity because while waiting to be allowed by Corrective Services to have their moment in court they suffer a heart attack or some other medical emergency? With the apparent tendency by Police to refuse bail on even the most minor of assaults and offences, the risk to persons in custody waiting for a bail hearing may be unacceptably high.”

On Friday, Wollongong Court House had the Local and the District Courts sitting. According to local prominent barrister Bernadette O’Reilly of Sir Owen Dixon Chambers, difficulties frequently arise at Wollongong Court House with getting persons up from custody for their hearing before a court. Also on Friday, a in the Local Court was forced to commence in the absence of the accused, because he was still in custody and apparently could not be bought up to the court by Correctives Officers.

“It is not unusual for both the Local and District Court to be sitting. Both Magistrates and Judges of the District Court have previously commented on the restrictions on the timely hearing of matters in the court house due to apparently inadequate staffing of Corrective services at the centre. When persons are having their hearings conducted in their absence, and when people are languishing in custody awaiting their bail application, the problem is large enough for a full enquiry into the court-based operations of Corrective Services.

A habeas corpus action is a serious step and one rarely used (thankfully, it is rarely needed). However if Corrective Services can’t do its job properly, or has decided to “go slow”, then it may be seen more often,” said Aaron Kernaghan.

Is Corrective Services running NSW Courts by telling them what they can do? One court today at Wollongong was forced to adjourn until Corrective Services had enough staff to present defendants in custody before the court – an unacceptable waste of court time, to say nothing of the plain degradation of a defendant’s rights to be properly and promptly delivered up to the court for their day in court.

Inquiries: (02) 4244-0339.

Habeas Corpus is a legal petition which requires a person under arrest to be brought before a judge or into court. The right is ancient and has its origins in the 1600s (if not before) in Britain. 

The Meaning of "Recklessness"

In Blackwell v R [2011] NSWCCA 93, the Court had something to say of importance for offences which have recklessness as an element.

The NSW Court of Criminal Appeal defined the meaning of “recklessly causes grievous bodily harm” for the purposes of the offence of reckless grievous bodily harm under s 35(2) Crimes Act. Beazley JA said at [82] (James J at [120] and Hall J at [170] agreeing with this observation): 

“… there must be a foresight of the possibility of something. The recklessness must cause something. That which it must cause is grievous bodily harm. In my opinion, there is no basis upon which that term can be read down to mean ‘some physical injury’”. [Emphasis in original.]

The court held that when directing a jury for an offence under s 35(2) Crimes Act, trial judges should direct the jury that the Crown must prove beyond reasonable doubt that the accused foresaw the possibility of grievous bodily harm.

The type of rule that Blackwell speaks of, applies where an offence provides for a specific form of harm, such as offences with the ingredients “recklessly inflicts actual bodily harm” (ss 61J, 61JA, 61K, 66C, 80A, 95, 109–113, 154C and 195) or “recklessly by any means … wounds” (ss 60(3)–(3A), 60A(3), 60E(3)) or “recklessly inflicts … any grievous bodily harm”: ss 42, 60E(3)(b). 

An injury is caused recklessly if the accused realised that the harm — actual bodily harm, wounding or grievous bodily harm — may possibly be inflicted upon the victim by his or her actions, yet he or she went ahead and acted as he or she did.

The Judicial Commission of NSW has provided this recommended direction for use in jury trials:

“The element of recklessness is made out if you are satisfied beyond reasonable doubt that the injury was [caused/inflicted] recklessly by the accused. An injury is [caused/inflicted] recklessly if the accused realised that [insert applicable ingredient: grievous bodily harm/wounding/actual bodily harm] may possibly be [caused/inflicted] upon the victim by [his/her] actions yet [he/she] went ahead and acted as [he/she] did. The accused cannot be found to have acted recklessly unless the Crown proves that the accused actually thought about the consequences of [his/her] act and at least realised the possibility of [insert applicable ingredient: grievous bodily harm/wounding/actual bodily harm] occurring.”

Aaron Kernaghan

Epic Fail – NSW Attorney General’s Staff Hiden Behind Call Centres

Legal Practitioners were once able to make calls to their local court house and to sort out details in an efficient manner – such as organising for practitioners to attend court to attend to business, and relieving the court staff of the need to have solicitors constantly at their public counters.

Most importantly, it used to be possible to contact the court, be put through to the Cells and ensure that details for clients who are detained are organised.

Now, it is impossible to do that. All phone calls go through to a central call centre that can only take messages and have someone call you back at some later time. That’s completely useless, especially for time sensitive matters where persons are in custody.

If it is the case that communications can be centralised, then obviously the Attorney General should centralise all court staff to Sydney or Parramatta and close all local courts. I’m sure if that was the issue in the offing, that the local courts would be happy to once more take our local calls.

In the meantime, lawyers are spending precious time on the phone, able to do no more than leave a message – with our clients having to pay the expense. It’s as ridiculous and useful as a four minute elevator trip to the same floor you got on at.

A call-centre operation for a court house is completely inefficient and impractical which, no doubt, experienced practitioners would have pointed out if someone had bothered to ask.

Epic fail.

Aaron Kernaghan

Balsy Lawyer – Standing Tall and Proud

A California lawyer who was ‘flying low’ on a flight has been convicted on two counts of lewd conduct. Leonard Julius Sawyer, 33, from Houston, Texas, exposed his erect genitals to the woman sitting next to him and a flight attendant on a plane journey from Los Angeles to Houston in February 2011.

Sawyer reportedly started the flight by repeatedly asking the unfortunate female in the seat next to him intimate questions. When the woman subsequently tried to move seats, the FBI website reports, Sawyer turned towards her with his genitals exposed and asked if she wanted to climb over him.

At some stage later in the flight Sawyer went to the bathroom and gave a flight attendant what she described as a strange look. On exiting the bathroom he opened his jacked to reveal his erect genitals to the attendant. When the flight attendant told him he was being inappropriate (to put it mildly), Sawyer reportedly responded by saying: “Can’t a guy have his fly undone?”

Sawyer was convicted on two counts of lewd conduct and could face 90 days in prison plus a $5,000 fine for each count, according to the FBI website.

This isn’t the first time the lusty lawyer has found himself in trouble for behaving inappropriately. The California Bar reported that Sawyer was suspended in 2011 after he pleaded no contest to two misdemeanour battery counts in 2010 for touching the buttocks of a female deputy district attorney and a court clerk.

Full Story here.


A lawyer in America has been suspended from practice after his ploy to sway a judge by insulting Canadians backfired.

Thomas McGrath claimed that he was simply “blowing off steam” when he scrawled this grammatically-appalling note to a judge:

“Your decision is going to effect [sic] American’s [sic] — How [sic] are you going to trust & believe — a [sic] alien or a US citizen.”

McGrath employed the cheap tactic in a desperate attempt to defend his wife’s business, the Chiropractic Wellness Center (CWC), based in Newcastle, Washington, against a former employee who quit to set-up her own shop. Annoyed at former employee and Canadian citizen Katherine Ellison’s departure, the CWC alleged unfair competition and “breach of the duty of loyalty”, the Seattle Weekly reported.

Those claims were thrown out in 2007, but Ellison hit back with a counter-claim that eventually paid her a $500,000 award. Ellison claimed CWC was recruiting Canadians, changing their terms of employment and warning that their working visa and impending licensing would be jeopardised if they did not accept the terms. Clearly CWC’s ‘wellness’ didn’t extend to how they treated their employees.

McGrath scrawled another note, in case the spirit of his first was unclear, to flesh out his argument: “How many jobs do we give to aliens like Dr. Ellison: She was schooled here in the US and refuses to become a US citizen. She needs to go back to Canada. In that regard, I am asking the Court to freeze all of her assets pending the outcome of this case.” Apparently, despite CWC’s alleged practice of recruiting ‘alien’ Canadians, McGrath (who is also the centre’s corporate secretary) has some heated emotions about the Canucks. Astonishingly, the state Supreme Court judge did not follow McGrath’s secretive counsel. Instead, he filed a complaint with the Washington State Bar Association. When the association deemed the notes inappropriate, McGrath challenged, saying he was “just blowing off steam”.

The association was unsympathetic. It emphasised the USA’s immigrant history, recounted Ellison’s shock at seeing the letters and McGrath’s repeated failure to comply with basic discovery processes during the trial in ordering his 18-month suspension. According to Seattle Weekly, this is not the first time McGrath has “blown off steam” and ended up being suspended from practice. He did worse than passing a derogatory note in a court of law in the 1980s, when he was convicted of assault with a deadly weapon. Following that conviction, he was reinstated as a lawyer in 1993.

Full Story Here.

Victorian Judge: Oppresive Conduct by Police

Judge Julian Leckie decided that conduct of police investigators was “oppressive” when they threatened to charge the mother of a suspect unless he confessed. The Judge found that such conduct influenced Matwali Chaouk and admissions he made in a police interview were therefore inadmissable at his trial.

In a ruling this week in the County Court, Judge Leckie relied on a case law that stated ”oppressive conduct can encompass mental and psychological pressure”. He also expressed ”considerable disquiet” about ”surprising” deficiencies in the police investigation for which he felt no satisfactory explanation had been provided.

Following the ruling, prosecutor Michael Hennessy announced the Crown would not lead any evidence, which required Judge Leckie to direct entries of not guilty be recorded.

It was revealed in pretrial evidence that since the raid, the original informant, Detective Paul Allen, had not fully investigated or taken action on the Chaouks and many other files.

Health issues have forced the suspension of an internal police investigation into him.

Chaouk said police told him that unless he said the items were his they would charge his mother – which he did, but told Judge Leckie that admission was false. Police denied this allegation.

He said in evidence he felt under duress, that he thought his mother was a ”hostage” and police were going to charge her with ”everything”.

Full story here.

If you are a Defendent in Sydney, you can get Costs

This case today in the Sydney Morning Hearld Online involves a man wrongly arrested and tasered. 

“Mr Lindsay’s first mistake on May 27 last year was not producing his ticket fast enough for inspecting transit officers at Dee Why terminal at 7pm. The second, as he searched for his errant pass, was making a wisecrack that the four officers were a waste of taxpayers’ money. One of the officers got upset about the jibe, and the builder apologised for being a ”smart-arse”. But his mea culpa was not enough and the officer called northern beaches police.

Three police officers boarded the bus and ordered Mr Lindsay off. When he got off the bus and went to walk away from police [t]he officer in charge, Constable Ryan Godfrey, drew his Taser and sent 50,000 volts into Mr Lindsay’s lower back.

An ambulance was called and police charged Mr Lindsay with offensive language, resisting arrest and assaulting police. But then police would go on tell a court their version of events.

Under cross examination at the Downing Centre Local Court on March 12, Constable Godfrey repeatedly said Mr Lindsay had and been ”loud and aggressive” towards officers on the bus. He told the court that when Mr Lindsay was asked to leave the bus, ”He’s replied with words similar to, ‘This is f—ed, it takes f—ing four of you c—s to do this, this is f—ed.”’

Constable Godfrey then described a struggle on the footpath outside the bus when trying to handcuff Mr Lindsay. ”That was proving rather difficult. As I said, he’s of large stature. He was overpowering us.” He then fired his Taser into Mr Lindsay’s lower back. ”After further police arrived to assist us, Constable [Sam] Parkinson approached me and said that he’d been assaulted by Mr Lindsay. He said he was elbowed in the face.”

When Mr Lindsay’s barrister, Greg Jones, asked Constable Godfrey if in fact his client had been polite and on the bus used the expressions ”please” and ”excuse me”, he replied, ”I don’t recall that.” Constable Parkinson and Constable Christopher Gould along with four transit officers all corroborated Constable Godfrey’s story that Mr Lindsay was ”loud and aggressive”, intoxicated and using ”f— and c—” towards officers. The court was then shown a passenger’s mobile phone footage of what happened on the bus.

The footage, which will be central to Mr Lindsay’s upcoming District Court case for wrongful arrest, false imprisonment, assault and malicious prosecution, tells a different story. Indeed, it shows Mr Lindsay repeatedly using the phrases ”please” and ”excuse me” when addressing officers. At no point does he swear.

Mr Lindsay is seen getting off the bus without any aggression towards the police. After the footage was shown to the court, the police prosecutor, Sergeant Grant Bucknell, immediately withdrew all the charges. When quizzed by the court about the sudden change of heart, Sergeant Bucknell said that when Mr Lindsay was arrested, ”police officers had not heard [him] using offensive language”. Rather, Constable Godfrey had ”reconstructed what was heard from what he was told by the transit officers”.

The magistrate, Lee Gilmour, warned Sergeant Bucknell ”to stop mucking around”. ”I want to stop you for a moment before you say anything else because I don’t think it would be fair to place you in a situation of complicity in relation to trying to argue something that clearly was a lie and that’s what you’re doing.” Sergeant Bucknell responded: ”I have nothing further to say.”

Ms Gilmour said the proceedings were based on ”bad faith” because Constable Godfrey lied under oath. She awarded $12,000 in costs to Mr Lindsay. ”The problem for the prosecution in this case is that … clearly, unfortunately, this officer has lied both as to what he said occurred and the basis upon which he [Mr Lindsay] was asked to move off the bus; there does not seem to be any lawful basis upon which he was,” Ms Gilmour said. Despite Constable Godfrey repeatedly saying Mr Lindsay swore, the magistrate found the police had not heard any offensive language. ”The bus driver is clearly seen in some of the evidence before the court. He was not interviewed; nor was anybody independent of the transit police officers and that would seem to me, in these circumstances, to have been a deliberate omission,” she said.

NSW police have begun an internal investigation of Constable Godfrey’s actions, as is standard procedure for failed police prosecutions. ”It has now been referred to the Professional Standards Command for investigation and will be oversighted by the NSW Ombudsman,” police said.”

Full Story here.

Forget the internal review. How about an investigation into perjury?

Good to see that $12,000.00 in costs were awarded.

A Kernaghan.