Supreme Court New South Wales Medium Neutral Citation: Plaintiff A & B v Bird; Plaintiff C v Bird [2016] NSWSC 997 Hearing dates: 6 and 7 October 2015 Date of orders: 25 July 2016 Decision date: 25 July 2016 Jurisdiction: Common Law Before: RS Hulme AJ Decision: Applications refused - I order the Plaintiffs pay the Defendant's costs of the applications providing however the Plaintiffs may within 7 days' notice to my Associate apply to discharge this order Catchwords: Evidence Act s192A – hearsay evidence of children – tendency and coincidence Legislation Cited: Court Suppression and Non-publication Orders Act 2010 Evidence Act 1995 (NSW) Cases Cited: TKWJ v The Queen [2002[ HCA 46; 212 CLR 124 Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 Beslic v MLC Ltd [2015] NSWSC 908 Maloof v Uncle's Joint Pty Ltd [2015] NSWSC 389 Sisson v Baiada Poultry Pty Ltd [2015] NSWSC1106 Category: Procedural and other rulings Parties: Plaintiff A & B (Plaintiff) Plaintiff C (Plaintiff) Rodney Raymond Bird (First Defendant) Lisa Maree Clancy (Second Defendant) Little Pigeon Pty Ltd trading as Footprints Childcare Centre (Third Defendant) Representation: Counsel: E Romaniuk SC with Ms M Kumar and Ms N Oreb (Plaintiff) DR Toomey SC with SJ Holmes (First Defendant) Ms PA Horvath with PR Gaffney (Second and Third Defendants) Solicitor: Shine Lawyers (Plaintiff) Garling Lawyers (First Defendant) DLA Piper (Second and Third Defendants) File Number(s): 2015/102175; 2015/102195 Publication restriction: Yes Judgment 1. By a Statement of Claim filed on 13 December 2013 in the District Court, the mother of a child who was, at the relevant time, spending days at a child care centre sues for damages she claims to have suffered in consequence of indecent assault and other trespass to the child. In those proceedings a claim for damages is also made by the child suing by her tutor. 2. By orders made by McCallum J on 22 April 2015 pursuant to the Court Suppression and Non-publication Orders Act 2010, Her Honour ordered that the mother and child be referred to respectively as Plaintiff A and Plaintiff B. These proceedings are now numbered 2015/102175. 3. By a further Statement of Claim also filed on 13 December 2013, the mother of another child at the same child care centre also made a claim for damages claimed to have been suffered in consequence of indecent assault and trespass to her child. On 22 April 2015 McCallum J ordered that the Plaintiff in these proceedings be referred to as Plaintiff C. These proceedings are now numbered 2015/102195. 4. By orders made by McCallum J on 22 April 2105 both sets of proceedings were transferred from the District Court to this Court. 5. By a Notice of Motion filed on 18 May 2015 in proceedings 2015/102175, the Plaintiffs in those proceedings have sought, pursuant to s 192A of the Evidence Act 1995 (NSW) advance ruling on the admissibility and/or use of: 1. An electronically recorded interview between NSW Police and the First Defendant dated 11 November 2010. 2. Electronically recorded interviews between NSW Police and Plaintiff B dated 28 February 2011 and 13 January 2012. 3. The disclosures of child sexual abuse made by Plaintiff B to Plaintiff A contained in statements made to NSW Police dated 18 January 2010 and 4 March 2011. 4. The disclosures of child sexual abuse made by Plaintiff B contained in medical records. 5. Electronically recorded interviews between NSW Police and Child 1 dated 11 November 2010 and 5 January 2012. 6. Electronically recorded interviews between NSW Police and Child 2 dated 15 December 2010 and 11 January 2012. 7. Electronically recorded interviews between NSW Police and Child 3 dated 2 December 2010. 8. An electronically recorded interview between NSW Police and Child 4 dated 7 January 2011. 9. An electronically recorded interview between NSW Police and Child D dated 9 February 2011. 1. The person referred to as "Child D' is a daughter of Plaintiff C. Children 1, 2, 3, and 4 were four other children who attended the centre and have made been interviewed with a view to seeing if that they were interfered with by the First Defendant. It is convenient to maintain to some extent the pseudonyms adopted in the Notices of Motion and in a bundle of documents that became Exhibit B before me. 2. By a Notice of Motion filed on 18 May 2015 in proceedings 2015/102195, Plaintiff C has sought, pursuant to s 192A of the Evidence Act 1995 (NSW) advance ruling on the admissibility and/or use of some of the same documents and in addition: 1. The disclosures on child sexual abuse made by Child D to Plaintiff C contained in statements made to NSW police dated 9 February 2011 and 20 April 2011; and 2. The disclosures of child sexual abuse made by Child D contained in medical records. 1. The submissions on behalf of the Plaintiff (page 5) and the Second and Third Defendants (paragraph 3(d)) extended to further material, including "the evidence of disclosures made by the six children (to … their parents …). However the only parents whose statements are included in the material tendered are Plaintiffs A and C and the mothers of children 1 and 2. In nature, the information contained in the statements of mothers of children 1 and 2 is not different from that in the statements of Plaintiffs A and C and given the common references to their statements I think I should regard them as encompassed by the Notices of Motion. 2. In both Notices of Motion, orders were also sought directed to prohibiting identification of the children mentioned and at T49 on 6 October 2015, I ordered that "there be no publication of the evidence adduced or submissions made in the course of the hearing before me, such order to operate until further order". 3. In the Statements of Claim it is alleged that: (i) the Third Defendant was a corporation conducting a named Childcare Centre; (ii) the Second Defendant was the sole director and majority shareholder in the Third Defendant and responsible for the running of the Centre; and (iii) the First Defendant was a shareholder of the Third Defendant and employed at the Centre to be responsible for food preparation and facilities maintenance but not as a carer of children. 1. According to the Statement of Claim in the proceedings 2015/102175, Plaintiff B was born in February 2007 and, in return for Plaintiff A paying a fee to the Defendants, commenced attending the Footprints Childcare Centre in May 2008 when she was aged 15 months. It is claimed that between May 2008 and 12 November 2010, the First Defendant assaulted Plaintiff B by, inter alia, on a number of occasions, kissing her, pulling down her pants and underpants, and touching her in an unauthorised manner. 2. According to that Statement of Claim, by reason of such matters, the Defendants breached a contract and a variety of duties of care said to have been owed, and each of Plaintiffs A and B suffered psychiatric injury, loss and damage in consequence. 3. The Statement of Claim in proceedings 2015/102195 contains similar allegations to those made in the other proceedings although the child, the subject of these proceedings, was said to have been born in November 2006 and attended the Centre from some time in 2008 after she attained the age of 2 until November 2010. The conduct to which it is alleged she was subjected, was the first Defendant tickling her on her underpants, touching her in a manner which was unauthorised and which she did not like, and interacting with her in a manner inappropriate for someone employed in a role as a cook and maintenance. 4. The Statements of Defence are not all in identical terms but in substance, all Defendants deny the allegations of misconduct. The First Defendant also denies the allegations concerning his employment. In an Amended Defence filed in proceedings 2015/102175, the Second and Third Defendants assert that the First Defendant was employed on a volunteer basis only, assert that he was responsible for first aid, food preparation, cooking, maintenance and occupational health and safety but otherwise do not admit the allegations concerning the First Defendant's employment summarised in [10](iii) above. 5. Sacrificing some accuracy for brevity, the Plaintiffs seek to have statements apparently made in the course of police interviews and to parents and in the case of Plaintiff B recorded in medical records, admitted as evidence of the truth of what was said by the children and this without calling or being forced to call any of these children. The Plaintiff also seek rulings that this material, most of which alleges some form of assault or sexual misconduct by the First Defendant towards the author of the statement can be relied on as showing that the First Defendant had a tendency to act in a particular way or showed coincidence in his actions. The tendency and coincidence asserted is as to:- (a) Pat children's bottoms; (b) Cuddle children in his care; (c) Permit children to show their chests and vaginas; (d) Rub children's bare stomachs; (e) Sit children on his lap; (f) Rub children underneath their shirt; (g) Massage children and massage the lower part of their stomach; (h) Pat, squeeze and "scrunch" children's bottoms; (i) Unintentionally touching child's vagina; and (j) Put his hand down in front of child's underwear. 1. Hearsay, tendency and co-incidence notices in relation to the evidence have been served by the Plaintiffs. In addition to arguing that the hearsay evidence is irrelevant and in any event does not answer the requirements of admissibility under the hearsay, tendency and coincidence provisions of the Evidence Act, counsel for the Defendants contend that it is not appropriate for the rulings sought to be made in advance of the hearing. 2. Relevant to that last issue is the nature and extent of the material that falls to be considered:- The documents the subject of the application, extend to something of the order of 240 pages. The electronically recorded interviews commonly include something of the order of 10 questions and answers on each page. Many of the answers have no direct relevance to the issues in the proceedings though some may be relevant to the issue of the weight that can be placed on answers that in their terms are relevant. Some answers are obviously inconsistent with others and additional answers are arguably so or, at least, arguably relevant in any assessment of the reliability of answers that are relevant. Included in the 240 pages mentioned were three reports of a consultant psychiatrist, Dr Quadrio, which themselves extended to some 40 pages. The Plaintiffs' written submissions in support of the relief sought extended to some 93 pages. The written submissions on behalf of the Second and Third Defendants occupied some 46 pages plus some short schedules. Counsel for the First Defendant adopted many of the submissions of the Second and Third Defendants and contented themselves with 9 pages. Oral argument occupied nearly 2 days. I was also provided with two large lever-arch files containing print-outs of previous decisions, and containing I estimate a further 800 pages. 1. Some summary of the evidence, the subject of the Application is also appropriate. 2. The terms of Plaintiff B's interview of 28 February 2011, raise an issue whether she knew the meaning of telling the truth. A number of answers also raised queries as to her then competence. For example, she said she did not know who her friends were at pre-school. She appeared to have difficulty in remembering the name of another child or teacher: then after naming one child, she said no to the question "was there anybody else there." In the interview, she said that all the First Defendant did was cook and that he never played with anyone. Asked what he did when he relaxes, she said he just sits and stares at people. She made mention of him lying on a table with him but nothing occurring there. 3. In answer to Q211, she said that no one but her mother gave her a massage. In answer to Q219, she said she never spent time with the First Defendant. In answer to Q231 she said she had not talked to her mother about a kiss but a little later said she had informed her mother about the First Defendant kissing her. She said she did not know what she had told her mother. Later she said that the First Defendant had kissed her on the lips and she had tried to stop him. Asked how she tried to stop him, she said she didn't know. Asked if the First Defendant had kissed her or tried to kiss her. She said "he tried to kiss me." 4. In her recorded interview of 28 February 2011, Plaintiff B said on a number of occasions, that all the First Defendant did at the Centre was cook and sit and stare at people and that he did not play games with anybody. Taken to the topic of massages, Plaintiff B said that no one but her mother gave her massages. Later in the interview after denying she had told her mother something about a kiss, she acknowledged she had in fact told her mother about the First Defendant kissing her. There were a significant number of inconsistencies in her answers to the 307 questions in this interview. 5. It appears that at the beginning of her electronically recorded interview of 13 January 2012, Plaintiff B was shown a recording of her previous interview. Again the issue arose whether she knew what telling the truth meant. Later she was asked whether she had said anything about the First Defendant kissing her on the lips. She said she did. Asked whether it happened more than once, she said no and that the kissing had only occurred once. Answers to that effect were repeated. 6. In her 18 November 2010 statement, Plaintiff A said that: (i) On about 13 May 2009, on arrival at the Centre, she observed the First Defendant kiss Plaintiff B on the forehead. Plaintiff B squirmed, wiped her forehead and said "yuck". (ii) At times unspecified, but on a regular basis, Plaintiff B would refer to the First Defendant as "spicy". Asked on one occasion, "do you mean spiky?" Plaintiff B said "yes, spiky". (iii) On 12 November 2010, Plaintiff A was informed by another parent at the Centre that the First Defendant had been arrested for indecent assault. (iv) That afternoon, Plaintiff A took Plaintiff B to the Sutherland Community Services Centre, where Plaintiff B was interviewed. Afterwards, the interviewers told Plaintiff A that they had raised some issues with Plaintiff B but Plaintiff B did not really have anything to say that would raise concerns. (v) During the evening of 13 November 2010, Plaintiff B open mouthed kissed Plaintiff A. Asked where she learnt to kiss like that, Plaintiff B said "at school". Asked who kisses you like that at school, Plaintiff B replied "Nat". (vi) Plaintiff A records that Plaintiff B had "done this before" and said she had learnt to kiss from the "Avatars", which I understand, to be computer game characters. (vii) Plaintiff A then asked DOCS to have Plaintiff B re-interviewed. 1. In her Statement of 4 March 2011, Plaintiff A said that: (i) In late November 2010 her mother had observed and reported an incident where Plaintiff B had "put one of her feet up onto the coffee table, pulled her underwear to one side and put a finger straight inside her vagina for a few seconds." (ii) Plaintiff A then spoke to Community Services, a police officer and again Community Services but did not speak to Plaintiff B at this time. (iii) On or about 10 January 2011, Plaintiff B was interviewed by a community health worker, Margaret from Engadine Community Health Centre but, according to Plaintiff A, didn't really engage in the conversation with Margaret. (iv) In mid January 2011, Plaintiff A bought Plaintiff B a "Protective Behaviour Interactive Computer Game" which Plaintiff B played a few times between its purchase and Plaintiff B being interviewed. The game focuses on a lion named Dido. (v) On 20 February 2011, Plaintiff C advised Plaintiff A "to keep talking to" Plaintiff B. (vi) Thereafter, possibly soon after, Plaintiff A and Plaintiff B had a conversation which included: Plaintiff A: Can you remember where Dido said your private parts where? Plaintiff B: My mouth and my boobies and I don't remember my other one. Plaintiff A: The other one was your minnie (the term Plaintiff B uses for her vagina) and your bottom. Do you remember how Dido talks about things making you feel yucky? ... Has anything ever happened that makes you feel yucky? Plaintiff B: "Nup". … Plaintiff A: What does (it) mean (when you say that Rod is spicy)? Plaintiff B: It means that Rod has spicy lips. … Plaintiff A: Where have you kissed him? Plaintiff B: On the lips. 1. There followed further conversation, which Plaintiff A recorded and in the course of which Plaintiff B was asked and answered many more questions concerning the First Defendant kissing her including remarks to the effect: "He kissed me lots of times which I didn't like" and "here we go again". 2. Also in the Statement of 4 March 2011: (i) Plaintiff A quotes some short statements from teachers at a pre-school Plaintiff B attended after leaving that conducted by the Third Defendant. Some of the statements indicate some unusual behaviour but which to a layman's eye is not obviously related to any conduct of the First Defendant. (ii) Refers to further conversation with Plaintiff B on the topic of interaction between Plaintiff B and the First Defendant. (iii) The first aspect of the interaction discussed was kissing in the course of which Plaintiff B described the First Defendant kissing with his tongue out. After Plaintiff A asked whether the First Defendant had ever done anything other than kissing that made Plaintiff B feel weird, Plaintiff B described the First Defendant "ripping my pants and underpants down on my bum". (iv) Plaintiff B now says regularly when she gets out the bath or goes to the toilet: "look at my Minnie. Look at my bottom." 1. Plaintiff C's daughter, referred to in the material tendered as Child D, participated in an electronically recorded interview on 9 February 2011. In that interview she seems to have sought to avoid a number of questions. She asked on a number of occasions to see her mother and at a fairly early stage, said she didn't want to talk anymore. At one stage she said that the persons who touched her on her tummy were "daddy and momma and Geremy" and indicated no one else although there is a later answer which, with some difficulty, might be regarded as affirmation that the First Defendant had. 2. In her statement of 9 February 2011, Plaintiff C said that :- (i) Her daughter commenced at the Centre in late 2008. (ii) For the first 20 months her daughter was happy and seemed settled. (iii) From about August 2010 her daughter's attitude changed and every morning she would say that she did not want to go anymore and that "I don't like it there, people hurt me". (iv) That prior to hearing of the First Defendant's arrest she had no problems with any of the staff of the Third Defendant or how it was managed. (v) In November she was informed that the First Defendant had been charged with indecent assault. (vi) On the following Monday morning she took her daughter to see Community Services and they helped Plaintiff C find a new centre. (vii) Plaintiff C then decided to "up my protective behaviour talks" with her daughter and Plaintiff C had no more concerns until about late January 2011. (viii) At that time she was tickling her daughter's tummy and asked, "Who tickles your tummy?" (ix) Her daughter replied with a few names including that of the First Defendant. (x) When Plaintiff C asked her daughter where the First Defendant tickled her, the daughter indicated a location halfway between the pubic bone and the groin area. (xi) On the way to her daughter's police interview, Plaintiff C asked her daughter whether she remembered talking about the First Defendant tickling her and when he daughter replied in the affirmative said that what happened was wrong and that they were going to a police-lady about it. 1. In her statement of 20 April 2011, Plaintiff C said that after her daughter's police interview, her daughter was very upset and said that she did not want to go back to the police station again. Later her daughter commenced "baby babble talking" and keeping a "blankie" near her at all times, something she had never done before. On 22 February, Plaintiff C attended Sydney Childrens' Hospital on her own and was advised that her daughter was too traumatised to be involved in counselling. Thereafter, Plaintiff C did some "protective behaviour lessons" with her daughter. In a later conversation Plaintiff C remarked to her daughter, "... Remember every morning before I took you to your old kindy, you were sad and kept saying you didn't want to go there? Do you remember what was making you sad?" Her daughter replied, "Because I didn't like it when (the First Defendant) tickled me." 2. In an electronically recorded interview of 11 November 2010, Child 1, Charlotte Manning, when asked what the First Defendant did at kindy said on a number of occasions "he cooks lunch" or "just cooks lunch". Later asked if he did anything else, she said he did but then said he didn't. Asked what she talked about with the First Defendant, she said massages and that he massaged her with his fingers. Asked where on her body she said she didn't know but it tickled. Asked to place dots on a diagram of a female she placed one midway between the mid thighs. The interviewing police officer asserted "you just did a dot in the middle of the 'wee wee'" though it seems to me that that statement is incorrect. Child 1 also placed a number of dots on other parts of the drawing. 3. Asked "… (The First Defendant) touched you on the wee, did he touch you on the outside of your undies or on the inside or something else", Child 1 said "inside". She said that this happened in a corner where the First Defendant cooked. A little later she said that he put his hand down her undies. She asserted that the First Defendant told her she was not allowed to tell about massaging on her "wee wee" and that he had touched it lots of times. 4. At one stage she seemed to say that the First Defendant had touched her "wee wee" with his foot in addition to his hand but then denied this "because the ground's yucky." She said the touching on tummy was good but she didn't like it on her back. 5. Child 1's mother, Julie Manning, made a statement to police on 11 November 2010. In it, she recounted conversation with Child 1 wherein the latter remarked that the First Defendant massaged her on her tummy and her "wee wee" but that she had been told not to mention the latter which was a secret. The statement went on record that on the following morning Child 1 began using terms that she said the First Defendant used for boys' and girls' genitals. Ms Manning also referred to the family owning a turtle type toy massager at can be used with the feet. 6. In a recorded interview of 22 November 2010, Child 2, Lana Hamilton, said that of the workers at the child care centre, she liked the First Defendant the best but didn't know why. She said sometimes he played hide and seek with her and sometimes she sat on his lap. She said that "Sophie" also sat on his lap at times. Shown a drawing of the front and back of a girl and asked to nominate particular parts, she identified, inter alia, the bottom and vagina, said "nobody" to questions as to who was allowed to touch those parts. The transcript of the interview records: Q127 And has anybody touched you on your vagina? A "NO AUDIBLE REPLY". Q128 No? That's very good. You know all the parts where people aren't allowed to touch… 1. Later when she was asked if there was anything she didn't like about the First Defendant, she answered "no". She also said there was no one at the Centre who made her feel uncomfortable. 2. In the course of questioning, it became apparent that Child 2 had previously spoken to another lady at Sutherland about her day-care. The questioning suggests that Child 2 had told her something about the First Defendant, but Child 2 did not acknowledge doing so. 3. In another police interview of 15 December 2010 with Child 2, there is reference to her seeing one or more of the interviewers a few weeks earlier and then having a talk. She said she no longer went to Footprints because she didn't like it, although she did not know why. Reminded that she had had a conversation with her mother on the weekend, Child 2 said that she had told her mother that the First Defendant touched her private area. She told the First Defendant to stop and when he did not, she got off his lap. On a drawing she identified the private part and said he had touched her with his hand on top of her clothes. She said she didn't really feel anything but that the First Defendant had done it for a little while now. She told her mother about this the other day but the First Defendant had never talked to her about it. 4. When the questioner asked Child 2 why when they had talked previously about sitting on the First Defendant's lap, Child 2 said "I just forgot" and "just remembered", "when she (her mother) was talking". With some prompting Child 2 said she had mentioned the matter to her mother after "touching her boobie" and agreed that her mother had become a bit upset because of that touching. Child 2 said there were no other places the First Defendant touched her. Child 2 said she did not remember being asked on the previous occasion whether anyone touched her on her private parts and she said "no". 5. In her police interview of 11 January 2012, Child 2 was apparently shown two "movies", which I infer to be of her previous interviews. Child 2 indicated that in one of the movies she had talked about the touching of her private part. She was reminded that she had previously said the First Defendant touched her private part. In an answer later, she said that he had touched her with his hands. Asked to remember the last time this occurred, she said it was hard to remember because it was a long time ago. When the questioner sought to pursue another aspect, she said that "he done it, every day, like" and there wasn't a certain place or time. One answer suggests that her mother had told her that the First Defendant had been naughty. Asked if there was anything else that happened at the Centre she said she couldn't remember anything. 6. Child 2's mother, Alice Hamilton participated in a police interview on 22 November 2010. In her statement of that day, she refers to a conversation with Child 2 in which Child 2 had said that the First Defendant "touched himself today", that Child 2 had told him that he was not supposed to do that and that the First Defendant replied "they're mine, I can touch them if I want to." 7. Child 2's mother made a further statement on 15 December 2010. In it she described the First Defendant as an old bloke who took on a grandfatherly role, that she had seen Child 2 on his lap but said nothing about it. She referred to hearing of the First Defendant's arrest on the day after it occurred, (a Friday) and of Child 2 being interviewed on the following Wednesday. After that interview, the interviewers told Child 2's mother that "everything was fine" but there was a later phone call from someone called Erin who said she had some concerns about the interview. Later, there was phone call leading to Child 2 being interviewed by police. 8. In that statement of 15 December 2010, Child 2's mother also said that on 12 December, Child 2 had started poking her mother's breast with her finger. There followed conversation in which Child 2 indicated that the First Defendant touched her breasts and by putting his hand under her skirt and wiggling his fingers, touched her vagina every time she sat on the First Defendant's lap. Asked why she hadn't told the police about this previously, Child 2 said "I don't know, I just forgot." 9. There is little information from Child 3, Ebony Paris. In her statement of 2 December 2010, she had a little trouble in identifying the truth. She referred to the First Defendant as someone who worked in the kitchen at pre-school and asked about him, she said "he puts us upside down" by holding legs. Asked what happened when he held her upside down, she said he tickled her on her belly inside her clothes. When questions turned to sleeping at pre-school she referred to being patted on the back by three people, whose names did not include that of the First Defendant. She mentioned nothing else that could be regarded as misconduct by the First Defendant. 10. In her interview of 7 January 2011, Child 4 referred to the First Defendant cooking and said there was not anything she didn't like about him. She referred to two persons other than the First Defendant patting her to sleep. She again said the First Defendant just cooks and doesn't look after the kids at all. 11. Child 4 also agreed that she had seen some ladies at Sutherland about kindy and said she had talked to them about body parts. She said they asked whether anyone had touched her on the backside or anything and she had said no. She identified a part on presumably a drawing of a girl as a "rude part" and then identified parts used to do a wee and a poo. Asked if anyone had touched her on her wee wee or her bum, she shook her head and said no. 12. She then referred to a friend, Sophie and said they tickled on another on the tummy and feet. She said she and one or more of her friends sat on the First Defendant's lap and that when there she ticked the First Defendant. When first asked whether the First Defendant tickled her, she changed the subject but when asked again, said no. 13. In her reports, Dr Quadrio recorded having been provided with a number of documents including some hospital and Health Department notes concerning Plaintiff B, the electronically recorded interview with Plaintiff B, an interview with Plaintiff B who had apparently been prepared for the interview by Plaintiff A and the statements of Plaintiff A. 14. Dr Quadrio records that Plaintiff B was prepared for court, apparently a prosecution of the First Defendant that has since been discontinued, over a two year period with the result that her memory of the trauma was sustained and that she had been counselled. 15. In her second report, dated 29 May 2015, principally directed to the daughter of Plaintiff C, Dr Quadrio remarks that it is not clear from the transcript of the electronically recorded interview whether the interviewee understood the concept of truth. Asked a number of specific questions Dr Quadrio's responses included statements supporting the conclusion that at the time of their police interviews Plaintiff B and the child of Plaintiff C were capable of providing accounts of their experiences but that by June 2015 or later there is less likelihood that a child aged 8 could give an adequate account of experiences 4 years earlier and that if an experience has been traumatic, there might be additional factors operating to impact the memory. Dr Quadrio also opined that there are significant risks in encouraging Plaintiff C's child to revive her memories and attempting to encourage Plaintiff C to do so poses a serious risk to her mental health and well-being. Dr Quadrio said that it would not be practicable to call these children to give evidence. 16. Section 192A of the Evidence Act 1995 (NSW) provides: Where a question arises in any proceedings, being a question about: (a) the admissibility or use of evidence proposed to be adduced; or (b) the operation of a provision of this Act or another law in relation to evidence proposed to be adduced; or (c) the giving of leave, permission or direction under s 192; the court may, if it considers it to be appropriate to do so, give a ruling or make a finding in relation to the question before the evidence is adduced in the proceedings. 1. The section was introduced following the decision of the High Court in TKWJ v The Queen [2002] HCA 46; 212 CLR 124 and a Law Reform Commission's report which pointed out that there were advantages to the administration of justice if advance rulings could be made. That general proposition I accept. 2. I was taken to a number of decisions where advance rulings have been made. They are recorded in the written submissions with which I was provided and I see no point in listing them. It is clear that whether an advance ruling should be made very much depends on the nature of the material sought to be made the subject of such a ruling. That said, I respectfully agree with the observation of Stevenson J in Lambert Leasing Inc v QBE Insurance Australia Ltd [2012] NSWSC 953 at [13], followed by Robb J in Beslic v MLC Ltd [2015] NSWSC 908, that "some good reason should be advanced in order that the court exercise jurisdiction under s 192A". 3. I also share the views of Young JA in Maloof v Uncle's Joint Pty Ltd [2015] NSWSC 389 at [40] where his Honour said:- Part of Mr Herzfeld's submission is that s 192A of the Evidence Act 1995 (NSW) permits me to take the course he suggested. He is correct in this. However, the fact that I have power to do it, does not mean that I should do it. To my mind it is only in clear cases that I would exercise the power. Experience tells me that it is usually appropriate for the trial judge to make rulings on evidence as it is usually only at the trial that the complete evidentiary picture emerges. 1. See also the remarks of Button J in Sisson v Baiada Poultry Pty Ltd [2015] NSWSC 1106 at [21]. 2. In this case the accounts given by the children, particularly Plaintiff B and Child D, are the most critical aspects of the Plaintiffs' cases. The material the subject of the application before me is extensive. If the rulings that the Plaintiffs seek are made they may well virtually decide the issue of liability and this in the course of an interlocutory hearing outside the ambit and atmosphere of a trial. That is not to suggest that such an objection should always prevail. However, where the ambit of the issues is as extensive as it is in this case, that is a factor that argues against the Plaintiff's success. 3. Arguing in the same direction is the fact that any decisions made by me can be the subject of re-consideration by the trial judge. Of course a judge can always revisit his or her own rulings on evidence but that is a relatively rare occurrence. Many of the individual decision I am asked to make on admissibility are by no means easy and ones on which intelligent minds might legitimately differ. 4. There are a number of further considerations that also argue against the making of a preliminary determination in respect of much of the evidence upon which I am asked to decide. 5. It is notorious that witness' beliefs and accounts can be influenced by others. Indeed Dr Quadrio refers expressly to the possibility of that occurring. There is no evidence before me that attempts to paint a comprehensive picture as to the extent this may have occurred prior to any of the electronically recorded interviews. Indeed in the case of Plaintiff B, it is clear that prior to making a number of the hearsay statements that the Plaintiff seeks to have admitted she was spoken to by a number of other persons and had some interaction with a "Protective Behaviour Interactive Computer Game" which involved discussion, to an extent not presently revealed, concerning her private parts. 6. It may be accepted that the possibility of contamination before the first conversation between a child and a parent is less likely but the statements of Plaintiff A, Plaintiff C and the mothers of Children 1 and 2, all refer to their children being interviewed by third parties at a very early stage. The questioning of Child 2 on 15 December 2010 also suggests that the police had interviewed her earlier. The content of remarks by the lion "Dido" to Plaintiff B and of the "protective behaviour talks" in which Plaintiff C's daughter participated may also have had a contaminating effect. There is no evidence of the detail of these matters. Nor is there evidence of the medical records on which Dr Quadrio seems to have relied. 7. Counsel for the Plaintiff also relied on Dr Quadrio's opinions. They certainly tend to support the course for which the Plaintiffs contend. However, it may be that the Defendants might wish to call evidence contradicting or qualifying those views. I would not hold against the Defendants that such evidence was not called in an application such as this and at this stage of proceedings. Indeed, I would have thought it quite inappropriate to have any such contest dealt with at an interlocutory hearing. 8. It should be mentioned also that counsel for the Plaintiff acknowledged that the Plaintiff envisages calling other evidence, not yet particularised. However, given the nature of the claims by Plaintiffs A and C, it may be inferred that the further evidence will include evidence from them and it is highly likely that issues of credibility will arise. One factor that is apparent from a comparison of the answers of a number of the children is the difference in their reactions to the suggested abuse and this certainly raises the question of what other factors may have been operative. Of course, any decision by me that evidence is admissible does not mean that it will be accepted. However, if questions of credibility of Plaintiff's A and B are likely to arise, that provides a further ground for leaving to the trial judge issues as to the admissibility of their evidence. 9. It is also relevant that under s 97 and 98 of the Evidence Act 1995 (NSW), sections relied on by the Plaintiff, a condition of admissibility that probably applies is that the court thinks that the evidence has significant probative value. In circumstances where that value is liable to be affected by a consideration of whether there may have been extraneous factors influencing the making or contents of one or more of the children's statements, it is far preferable to leave the decisions as to admissibility under the sections mentioned to the trial. 10. Section 135 on which the Defendants seem likely to rely and which requires an assessment of the probative value of a deal of the evidence that is the subject of the Application, raises similar considerations. 11. Of course questions of tendency and coincidence do not arise until a decision is made that the evidence said to tend to prove these matters otherwise passes the tests for admissibility. In that all or almost all of the evidence going to issues of tendency and coincidence here is hearsay, that issue is the appropriate place to commence any determination of admissibility. 12. On that narrow issue a number of arguments were raised. They included whether, given Dr Quadrio's views and ignoring the possibility of a contrary opinion, the children were "not available" – see s 63 Evidence Act 1995 (NSW), whether given Dr Quadrio's views as to their memory, calling them would involve "undue expense" - Evidence Act s 64, what is the probative value of the evidence, whether calling them would involve a danger that the evidence would be unfairly prejudicial, and whether that danger would outweigh the probative value - s 135. 13. Given what I have said as to the possibility of contamination, it does not seem to me appropriate to answer those questions in respect of much of the material placed before me. Other matters to which I have referred reinforce that view. 14. I appreciate that the application with which I am dealing has very many aspects, and indeed invites ruling as to many individual questions, and that a decision that some evidence should not be the subject of decision or a decision to admit or reject is not necessarily a reason why a decision or a decision one way or another should not be made in respect of other aspects or answers. However, partly in consequence of the view of s 192A that I have expressed above, but principally because there is so much of the material submitted to me for decision on which I regard it as inappropriate to rule on, I am not persuaded that it is appropriate to rule on any. 15. Accordingly, the applications will be dismissed. Subject to anything the parties may wish to say, the failure of the applications should lead to an order that the parties who brought the applications pay the costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 December 2021