NSW Police settle Tort claim in favour of S&B client

Sylvester and Browne Lawyers are proud to announce the settlement of a civil compensation (Tort) claim by the NSW Police in favour of our client. The numerous claims in tort related to the actions of two NSW Highway Patrol officers in detaining and later charging our client with a number of criminal offences in 2011.

Background
The client was driving to pick up his son from Tae Kwon Do lessons at Cronulla in Sydney's south when he was stopped by Highway Patrol Police who suspected that he had tried to avoid a random breath testing site further down the road.  When the client stepped from his vehicle to speak to officer, he was arrested, handcuffed and placed face down on the roadway for approximately 15 minutes in front of both his young son and daughter. During this time, other young Tae Kwon Do class participants and their families have walked past the client whilst handcuffed. In our view, it should have been obvious to the overzealous officers involved that our client was in fact picking up his son from the Tae Kwon Do class. This is backed up by the Police in-car-video footage which clearly shows the client pointing out of the driver's side window towards a group of boys dressed in Tae Kwon Do outfits. This appears to have been dismissed by the officers involved.

For some unknown reason, one of the officers has requested the attendance of a drug detection dog to conduct a search the client's car. No drugs were found. The client was then breath tested which proved negative. Perhaps fearing that they may have overstepped their authority, our client was then issued with court attendance notices for Assault Police and Resist Arrest. These charges were eventually withdrawn by Police Prosecutions some 5 months later without any apology or acknowledgement regarding the alleged wrongdoing of the officers involved.

In August 2013, the NSW Police agreed on confidential terms to settle the matter out of court.

Discussing the case generally, Principal Lawyer David Sylvester said, "It is unfortunate fact that sometimes Police abuse their powers during the execution of their duty. As a result, the victims of this abuse often suffer ongoing trauma associated with the incident. In many cases, the anger and hurt suffered by the aggrieved person tends to be exacerbated by the failure of the Police to apologise or accept responsibility for their actions."

Whilst the client is happy that the claim has been settled, he remains angered by the actions of the subject Highway Patrol officers. He is hopeful that this settlement will result in appropriate sanction for the officers and further training for Police generally so that tortious actions such as these can be avoided in the future.  

             

Sylvester and Browne Lawyers successfully defend Defamation claim against nightclub

Sylvester and Browne Lawyers are pleased to advise that they have successfully defended a defamation claim against our client 'Palms on Oxford' nightclub located in Darlinghurst, Sydney.

In 2012, the complainant launched a defamation claim against the club, its Director and the Licensee. He claimed that he was told by security guards at the club that he was too drunk to enter and should go away and sober up somewhere else. These words were denied by the club, the licensee and the security guard involved. The complainant, who is a Sydney journalist, outlined in his statement of claim that the words alleged to have been spoken had defamed him and affected his reputation.

However, after a five day hearing in the NSW District Court before Judge Judith Gibson, the case was dismissed and the complainant was ordered to pay the costs of all three Defendants. For a copy of the judgment click on the link below.

http://www.caselaw.nsw.gov.au/action/pjudg?jgmtid=165491    

The Director of Tulloch Pty Ltd Mr Peter Inwood, the company that owns Palms on Oxford said in relation to case, "We engaged Sylvester & Browne Lawyers in 2012 after we received the initial anti-discrimination complaint. They also handled the subsequent defamation claim against the club. We could not be any happier with their representation of us in both of these matters. We are understandably ecstatic with the decision of the court. Unlike many other lawyers representing pubs and clubs in Sydney,  David and his team achieved what they said they would achieve.  I would highly recommend David and his team for the brilliant job they did in defending the defamation claim against us."

Commenting on the case generally, Principal Lawyer David Sylvester said, "This defamation judgment is a very important decision for those who own, operate or manage licensed venues in Australia. As the law currently stands, venues that engage in appropriate and responsible vetting procedures in relation to patrons and potential patrons should not be concerned when refusing entry to patrons pursuant to their responsibilities under both the Liquor and Anti-Discrimination Acts".

The following links relate to media coverage of the case.

http://www.youtube.com/watch?v=fcSkeUqeS14&feature=youtu.be

 

http://www.smh.com.au/nsw/i-was-being-excluded-because-i-was-too-old-20130606-2nr1u.html

http://www.smh.com.au/nsw/journalist-denied-nightclub-entry-loses-defamation-case-20130619-2oj03.html

http://www.smh.com.au/nsw/sports-writer-barred-from-nightclub-loses-defamation-claim-20130619-2oj8o.html

http://www.theshout.com.au/2013/06/21/article/Nightclub-wins-defamation-test-case/RQXPAUARCV.html

NSW Police withdraw liquor licensing breach

NSW Police withdraw Liquor Licensing breach

Sylvester and Browne Lawyers are proud to report that a liquor licensing breach issued against a Licensee of one of our Hotel clients based in the Darlinghurst area was withdrawn by NSW Police prior to a hearing at the Downing Centre Local Court last Wednesday the 13th of February 2013.

The case alleged by Liquor Licensing Police attached to the Surry Hills Command was that the Licensee had failed to provide CCTV footage to Police upon request pursuant to a condition on his licence. However, based on the evidence, it should have been clear to the investigating Police that there was in fact a person on the premises at the time who was able to burn the subject footage to DVD and that a thorough investigation by the Police, rather than assumptions, would certainly have uncovered that fact.

Interestingly, the case highlighted an issue regarding the urgency of the Police request for CCTV footage. The evidence outlined that the subject incident being investigated allegedly occurred 7 days prior to the request. Why then did it take so long for investigating Police to attend the hotel and request the footage? Further, the relevant Notice to produce the CCTV footage that was issued to the Licensee had been backdated to the week before the Police attended the hotel. Whether this was a typographical error or otherwise remains to be seen.  Suffice it to say, licensees should ensure that they carefully check any documentation produced or relied upon by the Police prior to deciding upon a specific course of action.

Thankfully, sanity prevailed in this particular case and the Police Prosecutor withdrew the breach prior to the hearing. Sylvester and Browne Lawyers highly recommend that Licensees seek specialised legal advice prior to making  admissions to Police or paying fines issued for liquor licensing breaches. It is important to remember that when a breach or fine is paid by a licensee and/or manager, that information may be used by licensing Police and other regulatory agencies in unrelated proceedings in the future to indicate a pattern of offending by a particular licensee.  Food for thought.

David Sylvester
Principal Lawyer

S&B Lawyers sign agreement with Diageo Australia

Sylvester & Browne Lawyers to provide liquor licensing advice to Diageo Australia 

The directors of Sylvester and Browne Lawyers are proud to announce that the firm has been selected to provide specialised liquor licensing advice to Diageo Australia. Diageo plc is a British multinational alcoholic beverages company headquartered in London. Diageo is also the world's largest producer of spirits and a major producer of beer and wine. Diageo's major brands include Smirnoff vodka, JohnnyWalker Scotch Whiskey, Baileys liqueur, Guinness stout and Jose' Cuervo tequila.

When commenting on the agreement, Sylvester and Browne Lawyers' Managing Director Mr David Sylvester said, "We are extremely pleased to have been selected to provide liquor licensing advice to Diageo Australia. Not only is Diageo a worldwide leader in their field, they are also at the forefront of industry efforts in relation to the promotion of responsible alcohol consumption. We look forward to providing specialist advice and legal representation to the Diageo Australia team for the foreseeable future."

PIC hypocrisy at its highest

See the link below for an article outlining that the hypocrisy of the Police Integrity Commission (PIC) appears to know no bounds.

http://www.theaustralian.com.au/news/former-police-integrity-commissione-john-pritchards-downfall-shrouded-in-secrets/story-e6frg6n6-1226534837469

Considering that this particular PIC inquiry was (among other issues) investigating the alleged improper release of information to the media by senior Police, it's quite ironic that the PIC Commissioner Mr John Pritchard himself was found to have illegally provided confidential material to the media.  Contrary to the treatment dished out to the veteran NSW Police Superintendent who was the subject of the inquiry, Mr Pritchard was simply allowed to resign from his next appointment as head of the Australian Crime Commission rather than face criminal charges for breaching the PIC's secrecy provisions. According to the report, the PIC Inspector found that Pritchard had apparently "paid a high personal and professional price for his actions". Please.

Even more disturbing is the journalist's reference to the fact that the PIC Inspector's report found that the PIC's current No.3, Michelle O'Brien had apparently joked with Pritchard about the leak of confidential information. The total disregard of the privacy of those individuals involved in this matter can only be described as appalling. And all of this to make the beleaguered PIC "look better"! If O'Brien was complicit in the release of confidential information, surely her senior position at the PIC is untenable. Time for action Mr Premier.

Xmas and New Years greetings

The Directors of Sylvester & Browne Lawyers wish a very merry Christmas and prosperous new year to all of our clients (& their families) and to those who have provided assistance to the firm throughout 2012. We are excited about what 2013 holds for our existing clients including the successful culmination of several large cases.

We hope that you enjoy the holiday break and return to work stress-free in 2013.

Warm wishes

David Sylvester & Stuart Browne.
Directors

    

AHA Golf Day photos

Below are a few photos from the AHA NSW Golf Day held at Strathfield GC last Tuesday the 10th of December 2012. More photos to follow over the next week.

 

Director - Stuart Browne in full swing

 

Peter McIntyre (NSW GC) lining up.

Sylvester & Browne Lawyers sponsor AHA (NSW) Golf Club Golf Day

Sylvester & Browne Lawyers sponsor AHA (NSW) GC Golf Day

Sylvester and Browne Lawyers are proud to announce that they will sponsor the NSW Australian Hotels Association GC (NSW Branch) Golf Day on Tuesday the 11th of December 2012 at Strathfield Golf Club. The event will be a shotgun start commencing at 12pm. The event will be followed by the annual Xmas dinner at 6pm.

"We are very proud to be associated with the NSW AHA Golf Club for this years final event before Xmas" said Mr Stuart Browne, Director of Sylvester & Browne Lawyers. "We are really looking forward to the day and hope to be involved for many years to come".

There are a few spots still available, so if you are interested in attending let us know. Hope to see you there.  

Legal quote of the month

An unjust law is itself a species of violence. Arrest for its breach is more so.
Mahatma Gandhi

Client charged with Drug Supply receives section 10 dismissal

Sylvester & Browne Lawyers obtain another Section 10 Dismissal

Greetings readers.

This week we are proud to report that we successfully achieved a section 10(1)(b) dismissal and conditional discharge (under the Crimes (Sentencing Procedure) Act 1999) for a client charged with Supply and Possession of Ecstacy. In our view, the sentence was entirely appropriate, especially considering the young age of the client, his future prospects and lack of antecedents. As acknowledged by the investigating Police, upon arrest the client admitted his wrongdoing, accepted full responsability for his actions and assisted Police with their inquiries. The client was certainly aware that his actions had been foolhardy and had the potential to land him in gaol for a considerable period of time. Thankfully, he is now free to continue his studies and hopefully someday secure his dream job.

Notwithstanding that our client pleaded guilty to the offences, the case also raised some interesting issues in relation to Police arrests and their associated powers under the Law Enforcement (Powers and Responsibilities)  Act 2002. (LEPRA)

Whilst many in government and society generally appear to be committed towards providing Police officers with the powers necessary to investigate, arrest and place offenders before the courts, we as citizens must strive to ensure that the powers given to Police to achieve these goals are not misused or 'bent' via noble-cause policing. This case in particular served to highlight the fact that Police sometimes use their powers to search (eg. under s. 21 of LEPRA) and arrest persons (under s.99 of LEPRA) in an improper manner. For example, a Police officer must not attempt to search a citizen (without warrant) unless the officer suspects "on reasonable grounds" that the person has something in his possession or under his control that has been stolen or otherwise unlawfully obtained OR anything used or intended to be used in connection with the commission of a relevant offence OR a dangerous article in a public place OR a prohibited plant or drug. The mere fact that it is 4am in the morning and the approaching Police are outnumbered is NOT sufficient to stop search and detain or arrest a group of male persons walking in the vicinity of a shopping centre. The Police must suspect on reasonable grounds that one of the above circumstances is applicable before they deprive people of their liberty. This is a cornerstone of what we as members of society expect from the law and those who enforce it. Stopping, searching and detaining youths simply because the Police are outnumbered is both illegal and unjustified. If we acquiesce to the erosion of our civil liberties in this fashion, it is a just a matter of time before this type of Police behaviour becomes commonplace and accepted. I'm not saying for a minute that Police should be put into situations that may be unsafe. However, Police officers must work within the constraints of their powers as outlined in the statutes, otherwise the freedoms that we enjoy as a society will disappear.                    

Pubs "taking burden of law enforcement"

Article published in The Shout online magazine on Fri, 21/09/2012.

Pubs "taking burden of law enforcement"

By Clyde Mooney
Industry concerns have surfaced following the NSW Premier Barry O'Farrell's announcement on Tuesday of a raft of measures to tackle problems in the Kings Cross precinct.
The suite of initiatives includes an increased police presence and powers and improvements in public transport, but most significantly includes a precinct-wide linked ID-scanning system.
Sylvester & Browne Lawyers principal David Sylvester told TheShout the onus is increasingly being put on the operators to take on the burden of law enforcement.
"The cost issue doesn't resonate well with critics, but venues have already put in a number of initiatives to address this problem – how much more will they be expected to do?
"Each machine needs an operator, as well as additional security to protect them. The costs are significant."
Sylvester's firm represents a number of hospitality clients in the Oxford Street and CBD precincts, and he says these clients are "far from happy about the ramifications of such proposals and their potential to affect other city venues".
TheShout's story on Wednesday quoted support by the AHA (NSW) for the new measures, with CEO Paul Nicolaou describing them as "practical measures that directly target those people doing the wrong thing, not the 99.9 per cent of people who come to the Cross for a good time".
An AHA spokesperson yesterday reaffirmed this position, telling TheShout that "discussions have been held regularly with the nine AHA members in the Cross over the last few weeks".
The spokesperson declined to speculate on the proposed ID-scanning system at this stage.

Legal Quote of the Month

Justice may be blind, but she has very sophisticated listening devices. ~Edgar Argo

Our client Andrew McGrath on Ch 10 News

Thursday 21 June 2012 - News story regarding our client Andrew McGrath.

Network 10 (Sydney) reporter John Hill investigates the failure of NSW Police management to adequately protect it's own Police officers from toxic chemicals contained in the main Sydney Police Centre - Drug Exhibit Vault. See the YouTube video clip below where John Hill reveals that a similar exposure to toxic chemicals occurred at the Gosford Police Station drug exhibit room in 2007. As a result of that incident, a large number of Police were classified as Hurt on Duty and at least two officers have been medically discharged from the Police as a direct result of that particular incident. Interestingly, shortly after the Gosford Police Station incident, NSW Police management made a number of changes to the Gosford Police Station drug exhibit area including the installation of a large exhaust fan (see video). The revelation of the Gosford toxic exposure makes a mockery of the claims by NSW Police Management that they are not liable for the injuries of our client Mr McGrath some two years after the first event. Mr McGrath and several other Police look forward to the determination of the workplace health and safety breach lodged by WorkCover against the NSW Police. If you are a Police officer who has been exposed to toxic chemicals or injured as a result of working in a NSW Police Drug Exhibit room, please feel free to contact the undersigned to discuss your legal options.          

http://www.youtube.com/watch?v=DueC_jKkAis

  

Legal Quote of the Month

 Laws are like sausages. It's better not to see them being made.

Otto von Bismarck (1815-1898)

NSW Liquor Licensing - Three Strikes Scheme now in place.

All licensees and owners should be aware that the NSW Government’s 'Three Strikes' scheme, which is aimed at rogue operators who place staff, community and patrons at risk by permitting intoxication, violence or illicit drug use on their premises, came into effect on 1 January 2012.

The OLGR recommend that venue operators visit the website of the Office of Liquor, Gaming & Racing (OLGR) which provides updated information about the 'Three Strikes' scheme including a new fact sheet listing the types of offences that might trigger a strike. The link is www.olgr.nsw.gov.au/liquor_3_strikes.asp. 

If you have any questions, don't hesitate to contact our office on (02) 8251 0096

More updates coming soon!