JD v DPP & Ors [2000] NSWSC 1092

New South Wales Supreme Court

CITATION : JD v DPP & Ors [2000] NSWSC 1092 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 11794 of 1998 HEARING DATE(S) : 15/12/99 JUDGMENT DATE : 30 November 2000

JD (plaintiff) PARTIES : Director of Public Prosecutions (1st defendant) Mr J Williams, Magistrate (2nd defendant) Chief Magistrate of the Local Court of NSW (3rd defendant) JUDGMENT OF : Hidden J at 1

LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Mr J Williams JUDICIAL OFFICER :

COUNSEL : G Walsh (plaintiff) P Lakatos (1st defendant) Greg Walsh & Co (plaintiff) SOLICITORS : Solicitor for Public Prosecutions (1st defendant) Crown Solicitor (3rd defendant) CATCHWORDS : CRIMINAL LAW - committal proceedings - defendant's application for costs - whether investigation unreasonable - consideration of s42A(2A) of the Justices Act LEGISLATION CITED : Justices Act 1902 House v The King (1936) 55CLR 499 CASES CITED : Acuthan v Coates (1986) 6 NSWLR 472 Saffron v DPP (1989) 16 NSWLR 397 DECISION : Matter remitted to Local Court

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J Thursday 30 November 2000

No 11794 of 1998 JD v Director of Public Prosecutions & 2 Ors Reasons for judgment

1 HIS HONOUR: On 2nd September 1999 I gave judgment on a preliminary issue raised in this matter, that is, whether the learned magistrate had the power to award costs to the plaintiff after committal proceedings were terminated in his favour. I held that the magistrate had that power and I later heard submissions on the merits of the case. It is necessary to examine the circumstances which led to the plaintiff being charged with the offences involving his daughter. 2 The plaintiff married in 1985 and there were two children of that union, to whom I shall refer only by the initials of their first names. "I" was born in 1988 and "J", to whom the charges related, was born in 1992. The plaintiff and his wife separated in that same year and the children remained with their mother at her parents' home in Queensland. (The children later acquired step-siblings as a result of the plaintiff's remarriage.) 3 There ensued protracted and acrimonious family law proceedings. In correspondence between their solicitors in December 1992 and January 1993, the mother made somewhat bizarre allegations about a sexual relationship between the plaintiff and a baby-sitter whom he engaged on occasions when the children were with him on access visits. These allegations were said to be based upon observations made by "I", and the mother said that she had "I" touch her body to demonstrate what she had seen. The plaintiff denied any sexual encounter with the baby-sitter, as did the baby-sitter herself, and he expressed his concern that it was the mother who was promoting these ideas in the child's mind. 4 Notwithstanding this, the mother surrendered custody of the children to the plaintiff in August 1993 and that position was solemnised by an order of the Family Court, with access to the mother. She resumed access visits in September 1995, initially at the plaintiff's home in Sydney but later at her own home in Brisbane. It was during periods when the children were with her that "J" first made the allegations giving rise to the charges against the plaintiff. 5 According to the mother, in 1996 "J" began to talk about her fear of a man with a black mask on his face. In 1997, she said that the man would come into her bedroom at night, although nothing would happen when he did so. On another occasion, in the presence of "I", the mother pressed "J" to tell her more about these nightly visits and to describe the man. When she asked "J" who she thought the person was, "J" said that she did not know. 6 During the next visit, "J" said that the man was the plaintiff and the mother said that she had assumed as much. Asked by the mother whether she thought he was doing good things or bad things, "J" replied, "Bad things". The mother then asked "J" where he was touching her the most and invited the child to demonstrate by touching her. "J" said that she was frightened and quickly touched the mother between her legs. 7 On yet another occasion the mother sought further information from "J". "J" said that the plaintiff would come to her bedroom with a boy who looked like her step-brother, and that he would touch the boy in the same way that he did her. She added that he would touch her in her bed or at her desk and that he left "a yucky, sticky substance" on the desk. 8 The mother approached "I" and asked her whether she was being visited by anyone from the family in her bedroom at night. "I" said that she was not. In November 1997 the mother discussed the matter with both girls together. She told "I" that the plaintiff had been visiting "J" in her bedroom over a period of time and that often their step-brother was there too. She went on to recount "J"'s allegations that the plaintiff touched both of them indecently. She asked "J" herself to tell "I" what had been occurring. "I" asked "J" whether what the mother was saying was true and "J" said that it was. 9 In January 1998, "I" telephoned the 000 emergency line from the plaintiff's home. She told a police officer that the plaintiff had been sexually abusing her, her sister and her step-brother over the past few weeks. In fact, the children had been with their mother on an access visit over that period. The police officer gained the impression that "I" was reading something, rather than speaking spontaneously. 10 A few days later, "I" disclosed "J"'s allegations to her class teacher at Northbridge and to the school principal. The principal contacted officers of the Department of Community Services, who referred the matter to the child protection team at Chatswood Police Station. 11 On that same day "I" was interviewed at the school by a detective, in the company of the principal and a district officer of the Department of Community Services. The child adhered to the allegations she had made in the 000 call. "J" was brought to the room where the interview had been conducted and "I" told her that the detective and the district officer were there to help them. "J" became distressed, saying that she did not want to say anything, that whatever had been happening was no longer occurring, and that the plaintiff had told her that God would kill her mother and her if she told anyone about it. After some discussion, including a period when the principal spoke to "J" outside the room, it was arranged that "J" would be interviewed later in the day at an office of the Department of Community Services. That interview proceeded, again in the company of the principal and the district officer, and "J" alleged that the plaintiff would come to her bedroom, remove the bedclothes and touch her all over her body. 12 Both girls were interviewed again at the school in February 1998 by the detective in the company of the principal. After being reminded that she had told her mother and "I" about a mask, "J" described the mask which she said the plaintiff wore when he came to her bedroom. She also spoke of the "yucky" substance on her desk, again after being reminded that she had told her mother and "I" about it. In the course of her interview, "I" disclosed that the mother had given her "a run-through" of what she told the police in the 000 call. Asked how often this had occurred, she said, "Between maybe one and twenty times." 13 It seems that neither the detective nor the district officer was trained in the joint investigation team procedures, that is, the techniques employed in the joint investigation by police officers and officers of the Department of Community Services of complaints by children. 14 The school principal took the two children into her home for a period. Care proceedings were instituted in the Children's Court. The plaintiff was arrested and charged on 8 February 1998. His solicitor attended the police station. He declined to be interviewed but denied any wrongdoing. 15 The plaintiff's advisers sought a report from the eminent child psychiatrist, Dr Brent Waters, supplying him with a large body of material, including the police brief of evidence. In a report of 17 March 1998 Dr Waters expressed concern about the manner in which the allegations came to light and about their investigation by the authorities. He noted that much of the mother's dialogue with "J" was engendered by leading questions on her part, putting to the child "complex propositions which require simply an affirmation or denial". He added, "With most increments in the evolution of the allegations, it seems that [J's] initial response to her mother's questions is denial, which her mother challenges at a later date with leading questions." 16 In relation to both children, the doctor wrote: The dialogue as represented by the mother… seems to contain a strong confirmatory bias which is most clearly portrayed in the leading questions. That is, the mother holds a suspicion about the father, and her conduct and the line of questioning is oriented towards confirming that suspicion. The attitude of the mother towards the children and towards the father in particular… would seem to indicate that the mother was derogatory about the father and also that she was extremely anxious and smothering with the children. This is the type of behaviour which is extremely likely, in a child who is eager to please and to stay in favour with the parent, to lead the child to say what he or she perceives the mother wants to hear. 17 Dr Waters pointed out that, at least since the separation in 1992, both children had "lived in the shadow of their parents' unresolved disputation". He explained that young children "become extremely insecure under these circumstances", the insecurity in this case being exacerbated by the fact that the children had virtually no contact with their mother between August 1993 and the later part of 1995. He observed that the incidents complained of by "J" "are open to the interpretation that they are a distortion of commonplace bedtime routines", and concluded: The presence of a fertile context is relevant in that it clearly raises the question as to whether, through a variety of mechanisms, [J] has finally made statements which had confirmed her mother's concern, and at least in terms of the alleged abuses, are baseless. [I] has then been a willing accomplice to communicate with the authorities. The issue as to content also raises the possibility of an innocent explanation. A combination of important contextual as well as content concerns significantly shift the balance away from validity in the direction of invalidity. 18 Turning to the investigation of the complaint, Dr Waters had this to say: The Joint Investigation Teams have in place a variety of procedures intended to generate the highest quality information from interviews with even very young children. It would appear to me that the investigation by DOCS and by the police has violated the precepts in a number of fundamental ways which jeopardise seriously the quality of the interviews. … The interview (sic) with [J], who was six years of age at the time, have always been conducted with the school Principal present, and on at least one occasion also with her sister [I]. While on one view, [the principal] could be regarded as a support person, for two reasons I believe that this view is not supportable. First, [J] is now aged 6 years. It is unnecessary to interview with a "support person", a child of that age who does not seem to suffer from paralysing separation anxiety. Children of this age are routinely interviewed alone and are given a coherent account of themselves and of events which have occurred to them. Obvious accommodations need to be made for the child's age, but they are not major nor are they beyond the skills of properly trained Police and DOCS officers. Second, [the principal] has not conducted herself in a neutral supportive role as one might expect from a third party such as a teacher. The children lived in her home for two weeks and during the interviews she displayed a considerable affection to [J] and made encouraging statements to her during forensic interviews. [I] made an early "disclosure" to her, which was known to [J]. The effect in [J's] mind would have been to see [the principal] as acting in loco parentis and in this instance as representative of the views and attitudes of the mother, particularly exemplified by of (sic) [the principal's] conduct during the interviews. Thus the effect is of having the mother, with her confirmatory bias, in the interview. While the conduct on the part of [the principal] was almost certainly well-intentioned, the fact that it occurred does not reflect well on the professional competence of Ms Manning or Mr Bassingthwaighte. Probably not surprisingly then, as you have properly noted, a number of the questions in the DOCS and police interviews are extremely leading. 19 Apart from the references to Dr Waters' report, what I have written thus far amounts to no more than brief reference to some salient features of the considerable volume of material which was before the learned magistrate for the purpose of the costs application. It is sufficient, however, to demonstrate what a troubling case this was. Given his experience and expertise, Dr Waters' views are illuminating. Nevertheless, one does not need the assistance of an expert to perceive the very real danger that "J"'s account has been contaminated by her mother, for whatever reason. The whole of the circumstances surrounding the allegations are such as to cast grave doubt upon their reliability, and they called for a most careful and sensitive investigation. 20 On 5 March 1998 the Director of Public Prosecutions took over the proceedings. On 12 March the plaintiff's solicitor wrote to the Director, requesting that no further action be taken in the matter. That request having been declined, the plaintiff pursued a summons in this Court seeking that the proceedings be permanently stayed as an abuse of process. On 27 March Black AJ (as his Honour then was) dismissed that summons. 21 In the meantime, the Care proceedings continued. It seems that in June 1998 the mother failed to appear at the Children's Court whilst she was under cross-examination. However, the evidence she had already given served only to confirm fears that she had contaminated the account of sexual abuse by both girls and, indeed, may well have planted the idea of that abuse in their minds. This led to a further application to the Director to terminate the proceedings against the plaintiff, to which the Director acceded after examining the transcript of the mother's evidence. 22 The magistrate's power to award costs to the plaintiff was limited by s41A(2A) of the Justices Act, which provides as follows: (2A) Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following: