Solicitor David McCabe has been asked by the NSW CA to show cause why he should not be sent to the Bureau de Spank for a birching.
His law shop, McCabe Partners Lawyers, has branches at Taren Point in Sydney’s south and at Young on NSW’s southwestern slopes – home to the annual national cherry festival.
On March 31, 2018, the night in question, he was home at his ground floor apartment in Cronulla. After returning from a birthday party, he found Julie Riechelmann loudly banging on the door of Jon Lavers, who lived upstairs.
Lavers had been Riechelmann’s partner, but at this stage the relationship was unravelling.
Mr Lavers was a friend of McCabe, but McCabe was not a friend of Ms Riechelmann, a Qantas flight attendant. In fact, he detested her and she him.
Their history was bitter and by all account wine soaked. He referred to her with a variety of insults, including “trolly dolly”. In September 2014 she hit McCabe and a month later had slapped him in the face.
In June 2017 there was an episode where Riechelmann threw a glass of wine over the solicitor, a battery for which he was awarded damages of $500. A year later she was up for another $100 in damages for “moving a glass of wine in his direction as though she was going to throw its contents at him”.
When McCabe arrived home from the birthday party on March 31, 2018 he had drunk 10 to 12 schooners of beer. His partner, Melanie Wells, had drunk six or more classes of champagne. She lived with her two children at McCabe’s apartment.
Ms Riechelmann, who was not at the party, was also intoxicated “but to a lesser degree” than McCabe and Wells.
It was a recipe for strife.
The loud banging on Lavers’ door had disturbed the neighbours, and McCabe several times yelled, “go home”. Ms Riechelmann came down the stairs using “colourful and obscene language” while filming on her phone.
The verbal abuse continued, along with Riechelmann claiming that McCabe knocked her phone to the floor and kicked it inside the open door of his apartment.
Riechelmann: disturbed the neighbours
At least one punch landed on McCabe at which point tension flared with Riechelmann claiming he attempted to strangle her. The police had been called by a neighbour, but the response had been slow. Wells decided to hot-foot it to Cronulla Police Station in the hope that peace could be restored.
McCabe’s version was that with an extended arm he tried to keep Riechelmann away from him, whereas she claimed his right arm came across her from behind and pressed against her throat in a stranglehold with her head tilted back.
Melanie Wells had a different version of a single attempted strangulation – that McCabe had “put his hands around Ms Riechelmann’s neck whilst facing her, until she could not breathe, and her face went red”.
McCabe brought proceedings for trespass, battery, assault and property damage arising out of these altercations. Riechelmann cross-claimed for assault and battery, ultimately alleging two distinct actions of choking/strangulation, which were advanced in the alternative.
After an 18-day trial District Court Judge Matthew Dicker dismissed the cross-claim and awarded McCabe damages of $2,590, but if he was wrong he provisionally assessed her damages at $136,000 if one battery had been made out.
Riechelmann took it to the court of appeal, with both her version and Ms Well’s version of the attempted strangulation.
Anna Mitchelmore, Jeremy Kirk and Kristina Stern JJA found Dicker had erred. The trial judge had downplayed Wells’ evidence because he said it conflicted with Riechelmann’s.
Yet, he had already expressed doubts about her evidence and its reliability – in effect Dicker had found an inconsistency with evidence he did not accept.
“In our view his Honour went too far in setting aside [Wells’] accounts, even making allowance for the natural advantages his Honour had in having seen her give evidence.”
The CA accepted Ms Wells account of what happened. She had no reason to invent the allegations, particularly as she was emotionally involved with McCabe and to some extent financially dependent on him.
“It is also relevant that Ms Wells showed some moral courage in acting as she did on the night in question.”
After the drama on the evening of March 31, McCabe set about preparing statements for the police from Wells and two other neighbours who witness part of what unfolded. Wells later told the court that this statement was not accurate.
By now the relationship between Wells and McCabe was charging towards the rocks, even more so after she keyed his car, for which she was charged with malicious damage, but no conviction was recorded.
Further, McCabe texted Wells’ new partner with intimate details of her sexual practices – something he later admitted was “inappropriate”.
Following the drama, Riechelmann went to see a GP who made a record of the redness of her neck.
The lads: Lavers and McCabe
Much turned on the credit and reliability of the main witnesses. McCabe struck trouble over a series of denials: he denied wanting to control the information obtained by the police; he denied insulting Riechelmann; and he said he had never seen or read the Solicitors’ Conduct Rules – which raised questions about his knowledge of ethical obligations in conducting interviews with witnesses.
It was agreed that McCabe had done “some disgraceful things”, including seeking to discourage Wells from giving evidence.
“For a person to act in a way that seeks to intimidate or frighten a witness so as to deter them from giving evidence is conduct of the most serious nature, particularly when done by a solicitor.”
This raises a question about whether McCabe may be in contempt of the District Court, acted criminally and in breach of his obligations as a solicitor.
He’s been asked to show cause why all of this should not be considered by the Legal Services Commissioner.
There was judgment for Riechelmann against the cross-defendant in the sum of $136,000, plus interest from February 21, 2013.