AW & Ors v State of New South Wales [2005] NSWSC 543 | Case summary

AW & Ors v State of New South Wales [2005] NSWSC 543 | Case summary | Zoe

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2 The first plaintiff, AW, and the second plaintiff, LW, married in 1972. Shortly after their marriage they purchased the home in which LW had lived all her life (the family home). They had four children. 3 AW was employed by a State Government Corporation since commencing his apprenticeship (save for a period when he had been conscripted into the Australian Army). In 1994 LW was working at the canteen of the high school at which two of her children were enrolled. Her mother, JS, is the third plaintiff. In 1994 JS was a widow living in a caravan that was parked in the back yard of the family home. She was aged seventy-two years and was suffering from respiratory problems including emphysema and asthma. 4 In April 1994 the eldest of AW and LW's children, SW, was aged eighteen years. She had moved out of home and was living with her boyfriend, Michael. The remaining three children were still at school and living at home. They were: a son, JW, aged fifteen, a daughter, EW, aged thirteen, and another daughter, JLW, aged eleven. 5 In November 1993 SW and Michael sought counselling from Douglas Keir, a counsellor employed at the Family Planning Association's Chatswood office because they were experiencing difficulties in their sexual relationship: SW did not want to have sexual intercourse. 6 In the course of counselling SW told Douglas Keir that she had been raped by boyfriends who had been physically violent to her. She also said that she had been sexually molested by her father. In a counselling session on 17 January SW complained that her father had attempted to rape her a matter of days earlier. Mr Keir tried to persuade her to report the matter to the police but SW was unwilling to do so. 7 In a counselling session on 21 March SW told Mr Keir that her father had raped her at her home three nights earlier. By this time Mr Keir had come to the view that he was required to inform the Department of Community Services (DOCS) that SW's younger siblings may be at risk of abuse. He told SW this. SW agreed to report her father's abuse to the police. 8 On 30 March SW provided a statement to Detective Sergeant Cruickshank (the Cruickshank statement) detailing a history of sexual abuse by her father commencing when she was aged five years. In the course of making this statement SW said that she had not told her mother of the abuse because of her belief that her mother would try to kill herself if she found out what had been happening. 9 The further investigation of the complaints made by SW in the Cruickshank statement was assigned to Detective Sergeant MOD at the Dee Why Detectives' office. He interviewed SW on 17 April. During this interview SW made claims suggestive that her mother had been complicit in her father's sexual abuse of her. 10 In a further interview on 19 April SW told MOD that her mother had engaged in various indecent acts with her over a number of years. AW and LW were arrested and charged with the commission of sexual offences against SW on that day. 11 Following the arrest of LW DOCS took the younger children, JW, EW and JLW into care. Each of the children initially denied that their parents had sexually abused them. Over time each came to make allegations of sexual impropriety against one or both of their parents. 12 On 22 April an officer of DOCS filed an application pursuant to s 72 of the Children (Care and Protection) Act 1987 alleging that JW, EW and JLW were in need of care (the care proceedings). 13 Following the arrest of AW and LW, the two eldest girls, SW and EW, went to stay with their uncle, PS, and his wife, YS, on the Central Coast. PS was one of LW's brothers. In time PS' children, SS and KS, also came to allege that AW had sexually interfered with them.

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17 MOD took a further statement from SW on 13 and 14 September. In this statement she came to make allegations for the first time that her grandmother, JS, had been a party to the sexual assaults that had been committed on her and on her siblings. 18 On 15 September JS was arrested and charged with sexual offences including the carnal knowledge of her two granddaughters. 19 On 18 August the hearing of the care proceedings commenced before Mr Rooney, Children's Court Magistrate. The proceedings were heard over 109 sitting days. The children did not give evidence. Their complaints, including the complaints made by SW, were in evidence before Mr Rooney. 20 On 20 November 1995 Mr Rooney delivered judgment. Among other things he found: "With respect to the allegations of sexual abuse of the four children by their parents and grandmother, I have been drawn slowly and inexorably over many hearing days to the firm conclusion that they are, on the evidence presented, essentially and substantially untrue. Admittedly, I have not heard oral evidence from the children, and I stress that I come to this conclusion subject to that qualification. There are many inconsistencies and improbabilities, too numerous to traverse in this finding, revealed on consideration of details recited by the children. Sometimes the evidence can only be described as fanciful, especially when hearing directly from the parents and grandmother and observing their demeanour, when giving evidence, and the overall consistency of their evidence. I find it quite impossible to accept the allegations as true. In any event the three children, subject to these proceedings, have in the case of one child partly withdrawn the allegations and the other two have completely withdrawn them with respect to the parental involvement." 21 Mr Rooney's findings included that there had been inappropriate sexual activity between the three younger children and that this was suggestive of a lack of adequate supervision. He was also of the opinion that the making of the allegations, which he regarded as substantially untrue, was some evidence of psychological damage. He found that the children were in each case in need of care within the meaning of the Children (Care and Protection) Act and he made consequential orders. 22 On 18 March 1996 the committal hearing of the charges brought against the three plaintiffs commenced before Mr Price, Magistrate. The prosecution was conducted by a Crown Prosecutor. On 13 May 1996 Mr Price found that there was a prima facie case against each of the plaintiffs (15/5/1996 at T 1/2). AW and LW gave evidence at the committal hearing. On 21 June 1996 his Honour discharged LW and JS in respect of all of the charges. AW was discharged in respect of all charges save for one, which alleged an offence against SS. The Director of Public Prosecutions (the Director) subsequently determined to take no further proceedings against AW with respect to this charge. 23 JW, EW and JLW have all retracted the allegations that they made against their parents and grandmother. 24 At August 2003, when the hearing of the proceedings against the defendants commenced, JLW was living in the family home. JW was living and working in Western Australia but maintained contact with his parents and grandmother, returning to visit them at Christmas and on other occasions. EW had re-established contact with her parents and grandmother relatively shortly prior to the hearing. 25 SW had not resumed contact with her parents or grandmother. At the time of the hearing SW was living in a de facto relationship with MOD, who had been the officer in charge of the investigation into the complaints made by her. THE PLAINTIFFS' CLAIMS 26 The plaintiffs sue the State of New South Wales pursuant to the Crown Proceedings Act 1988 as vicariously liable for the acts and omissions of a number of police officers (the police officers). The State's vicarious liability arises under the Law Reform (Vicarious Liability) Act 1983. Section 6 of that Act deems a police officer to be a person in the service of the Crown. 27 Each plaintiff pleads causes of action in false imprisonment, malicious prosecution and abuse of process, and claims damages including aggravated and exemplary damages. 28 The hearing of the plaintiffs' claim commenced on 18 August 2003. It was adjourned from time to time. The hearing occupied sixty-one days and was concluded on 9 July 2004. The first plaintiff, AW, was represented by Mr Bartley SC and Ms Whalen. Mr Bartley SC, Mr Campbell SC and Ms Whalen appeared on behalf of the second plaintiff, LW. Mr Campbell SC and Ms Whalen appeared on behalf of the third plaintiff, JS. Mr Donovan QC and Mr Hodgson appeared on behalf of the defendant. 29 The plaintiffs' original statement of claim was struck out by order of O'Keefe J. His Honour gave leave to replead causes of action in malicious prosecution and abuse of process. The plaintiffs were given leave to proceed on separate statements of claim. The pleadings were amended by leave during the course of the hearing. The first and second plaintiffs proceed upon their third further amended statement of claim. 30 The third plaintiff was born in July 1922. At the conclusion of the hearing she was aged eighty-two years and was in frail health. After judgment was reserved I was informed by her solicitors (with the consent of the defendant) that she had died on 29 July 2004. 31 By letter dated 16 March 2005 her solicitor, Mr Walsh, sought leave to file a fourth further amended statement of claim. Implicit in the leave that was sought was the substitution of LW as the trustee for the estate of the late JS as the third plaintiff. A copy of a letter dated 8 March 2005, signed by the solicitor with carriage of the matter on behalf of the defendant, was attached to Mr Walsh's letter and conveyed the defendant's consent to the filing of the fourth amended statement of claim. 32 The pleading enclosed with the letter of 16 March 2005 departed in material respects from the third plaintiff's third further amended statement of claim and from the way her claim had been advanced at the hearing. The proceedings were listed at my direction on 30 June 2005 in order to clarify the position. Mr Walsh informed me that the pleading attached to his letter contained a number of errors. The defendant consented to the filing in court of a fourth further amended statement of claim. I made an order substituting LW as trustee for the estate of the late JS as the third plaintiff in the proceedings. The defendant consented to this course. THE ELEMENTS OF THE CAUSES OF ACTION 33 Abuse of process, false imprisonment and malicious prosecution are each intentional torts. False imprisonment

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Abuse of process 35 Each of the plaintiffs pleads a cause of action in the tort of abuse of process, relying upon the material facts pleaded in support of the claim for malicious prosecution and contending, in the alternative, that the criminal process was utilised by the police officers so as to effect an object not properly within the scope of the process. The particulars of the improper object are in each case pleaded as: (a) Utilising the criminal process in an effort to justify the unlawful arrest of the plaintiff; (b) Utilising the criminal process in an effort to conceal the earlier negligent and/or improper investigation resulting in charges that should not have been brought and/or maintained against any of the plaintiffs; and (c) By MOD, utilising the criminal process to secretly conceal and foster his illicit relationship with the principal complainant, SW, thereby contaminating the evidence of SW during the care and criminal proceedings, thus eroding the integrity of the criminal process during the above proceedings to the detriment of the plaintiffs. 36 In Fleming at 687, describing the tort of abuse of process, the learned author observes: "Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained, predominantly for any purpose other than that which it was designed to serve. Although usually committed by plaintiffs, the tort may equally consist in an abusive defence. It involves the notion that the proceedings were "merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate." It is therefore immaterial whether the suit thus commenced was founded on reasonable cause or even terminated in favour of the instigator: the improper purpose is the gravamen of liability" (footnotes omitted). 37 In Hanrahan v Ainsworth (1990) 22 NSWLR 73 Kirby P observed of the tort of abuse of process that (at 96): "The tort involves using court process for an ulterior purpose, that is, for a purpose not within the scope of such process". 38 In the same case Mahoney JA also considered that the tort would be made out by proof that the proceedings had been brought for an improper purpose. Clarke JA considered that the tort of abuse of process would be established where it is proved that process ancillary to a principal claim for relief had been used to effect an object not within the scope of the process and thereby damage had been occasioned. His Honour stated that the action would not lie where the claim is that a party instituted proceedings, whether principal or ancillary, in order to effect an object within the scope of the proceedings. Malicious prosecution

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62 Each of the plaintiffs plead as a particular of malice that the police officers, or anyone acting on their behalf, omitted to terminate the prosecution of each of them in circumstances where, upon a proper consideration of the evidence in the care proceedings and the findings of Magistrate Rooney on 20 November 1995, the prosecutions were doomed to fail (particular (kk)). I understand the reference to persons acting on behalf of the police officers as the assertion that a solicitor in the employ of the ODPP or, for that matter, a Crown Prosecutor, might be seen to be acting on the instructions of the private informant and not on behalf of the Director. This seems to me to involve a misconception concerning the Office of the Director. 63 In Price v Ferris Kirby J observed at 707.F: "What is the object of having a Director of Public Prosecutions? Obviously, it is to ensure a high degree of independence in the vital task of making prosecution decisions and exercising prosecution discretions. Its purpose is illustrated in the present case. The Court was informed that, in the prosecution of a police officer, it is now normal practice in this State for the prosecution to be 'taken over' from a private prosecutor or informant and conducted by the DPP. The purpose of so acting is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour." 64 The plaintiffs' claim that MOD and the other police officers failed to continually review the evidence and to terminate the prosecution at the earliest date when it became apparent that it was insufficient to prove any offence beyond a reasonable doubt. Specifically, they particularise the failure to terminate the prosecution after Magistrate Rooney delivered his reasons. It seems to me that these particulars of their claims must fail to the extent that they relate to the time after the Director took over the conduct of the prosecution in each case.

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69 Detective Yeomans conferred with Jill Cash concerning the "proposed charges" on 22 June 1994. He said that copies of statements had been given to Jill Cash but he was not able to recall when, save to state that, "all statements were eventually provided to the DPP" (T 119.37). 70 On 22 June MOD and Detective Yeomans both devoted a considerable number of hours to attending to the charges to be preferred against AW and LW. 71 It was the defence case that Detective Yeomans took the form of the charges from wording given to him from Ms Cash. This was said to support the inference that the charges were preferred at the instigation of the Director, who should be found to have taken over the prosecution prior to the further charges being laid on 23 June. I do not accept that to be the case. Detective Yeomans was uncertain as to the contact that he had had with Ms Cash prior to that date. He had a recall of receiving what he described as "indictments" from her, but he was unable to say when that had occurred. Given the entries in his duty book in the days prior to 23 June disclosing significant amounts of time devoted to the preparation of the charges and, in particular, to the circumstance that he obtained a copy of the indictments book to assist him, I am not satisfied that he merely took the form of the charges from Ms Cash. 72 A further consideration that tells against the defendant's submission that I would infer that the prosecution was taken over by the Director prior to 23 June relates to the form of the charges. The first three charges laid in court against LW on 23 June (OLC nos. 5159/3/4/5) each charged her with carnal knowledge of her daughter SW, a girl under ten years. This was an offence provided by s 67 of the Crimes Act (as it then stood). It required proof of penile penetration of the vagina. The definition of "sexual intercourse" that was introduced into the Crimes Act by the Crimes (Sexual Assault) Amendment Act 1981 admitted of a woman having sexual intercourse with a woman or girl. This explains why the charges of carnal knowledge against LW were subsequently withdrawn and replaced by charges under s 61D(1) of sexual intercourse without consent. I think it unlikely that Ms Cash would have framed a charge against LW alleging that she had carnal knowledge of her daughter. 73 Detective Yeomans was present at the Manly Local Court on 23 June. The charge sheets record the appearance of Ms Cash on behalf of the prosecution.

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It is to be noted that Hawkins J went on to observe at 173: "The question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of." 80 In written submissions the defendant noted the distinction between an honest belief in the guilt of the accused (Hicks v Faulkner) and a genuine belief that the proceedings were justified (Sharp v Biggs per Dixon J at 106). In the defendant's submission it is sufficient that the prosecutor believe the probability of guilt to be such that upon general grounds of justice a charge is warranted: Sharp v Biggs and Brain (WS 7 at [9]). In this respect reliance was placed on the discussion of this element of the tort in Fleming, at 681: "In any event, unshakable certainty in the guilt of the accused is not demanded, since a fair minded person may well feel justified in bringing a suspect to justice without, in his own mind, prejudging the issue. It is sufficient, if he believes that the probability of guilt is such that upon general grounds of justice a charge is warranted. In other words, he may have probable cause for initiating a prosecution, although lacking a conviction of guilt beyond reasonable doubt such as a jury must entertain to justify a verdict of guilty" (footnotes omitted). 81 I approach the matter upon the basis that the subjective element of reasonable and probable cause requires that the prosecutor believe in the probability of the accused's guilt such that upon general grounds of justice the charge against him or her is warranted: Brain per Dixon at 382 and Sharp v Biggs per Dixon J at 106. 82 In the way each of the plaintiffs put their case, the prosecutor for relevant purposes was MOD. 83 It is necessary that the prosecutor have reasonable and probable cause with respect to each of the charges brought against each plaintiff: Leibo v Buckman [1952] 2 All ER 1057; Dent v Standard Life Assurance (1904) 4 SR (NSW) 560; Birchmeier v Rockdale (1934) 51 WN (NSW) 201. 84 The reasonableness of the prosecutor's belief must be based on the facts known at the commencement of the proceedings and not upon facts that may subsequently have come to his attention: Musgrove v Newell (1837) 1 M&W 582, 150 ER 567; Tempest v Snowden (1952) 1 KB 130 per Denning LJ at 139. 85 In the event that additional evidence comes to light after the proceedings have been instituted tending to show that the prosecution is baseless, the maintenance of the proceedings will show lack of reasonable and probable cause: Tims v John Lewis & Co Ltd (1951) 2 KB 459 at 472-474. 86 In considering the material known to the prosecutor at the time the proceedings were instigated and/or maintained it is open to have regard to evidence that may not be admissible upon the hearing: Lister v Perryman (1870) LR 4 HL 521. 87 The prosecutor is not required to test every item of evidence before instituting proceedings. He is not required to ascertain whether there exists a defence to the charges laid, but rather whether there is reasonable and probable cause for instituting the proceedings: Herniman v Smith (1938) AC 305 at 319. While the focus of the inquiry is on the material available to the prosecutor at the time the proceedings were instigated, it is not necessary that the prosecutor consider possible defences, it is necessary that the prosecutor make sufficient enquiry so as to inform himself of the true state of the case: Abrath v North-Eastern Railway Co (1883) 11 KBD 440 per Brett MR at 451 and Glinski v McIver [1962] AC 726 per Lord Devlin at 768.

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88 Proof of the element of absence of reasonable and probable cause requires the plaintiff to establish a negative. In Fleming it is put this way at 683: "Thus in order to establish the prosecutor's disbelief in his guilt, the plaintiff must give evidence from which an inference may be drawn as to what the defendant's belief actually was. It is not enough merely to adduce reasons for non-belief, without showing that they were in fact operative. The requisite evidence may be supplied, for example, by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff's innocence that no reasonable person could have believed in his guilt, but it is not sufficient merely that he had information, some of which pointed to guilt and some to innocence" (footnotes omitted). (iv) Malice 89 The final element that the plaintiffs must prove is that the prosecutor was actuated by malice. In Rapley v Rapley (1930) 30 SR (NSW) 94 per Street CJ at 98 it was said: "It is well settled that in actions of this kind what is meant by malice is malice in fact, and that is a matter to be determined by the jury on a consideration of all the circumstances in the case. If it appears to them that there was an absence of reasonable grounds for the proceedings, they may take this into consideration as evidence of a sinister or wrong motive, but want of reasonable or probable cause will not of itself necessarily support a finding of malice. In Hicks v . Faulkner (8 Q.B.D. 167), Hawkins, J ., said (at pp. 174, 175): "In an action of this description the question of malice is an independent one - of fact purely - and altogether for the consideration of the jury, and not at all for the Judge. The malice necessary to be established is not even malice in law such as may be assumed from the intentional doing of a wrongful act (see Bromage v. Prosser (4 B. & C. 255), per Bayley, J .), but malice in fact - malus animus - indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody. In order to arrive at a conclusion on the question, the jury are to take into consideration all the circumstances of the case, and to form their own opinion upon them uninfluenced by any opinion of the Judge, unless that opinion accords with their own view. If among the circumstances it appears to the jury that there was no reasonable ground for the prosecution, they may - though by no means bound to do so - well think that it must have been dictated by some sinister motive on the part of the person who instituted it." 90 In Commercial Union Assurance Company of New Zealand Ltd v Lamont (1999) Aust Torts Rep 80-236 at 68,509 Richardson J observed: "Malice in this context means no more than an improper and wrongful motive. It "covers not only spite and ill will but also any motive other than a desire to bring a criminal to justice": Glinski v. McIver (1962) A.C. 726 at p. 766." 91 Malice may be established by proving the wrong motive or by proving that the circumstances were such that prosecution may only be accounted for by imputing a wrong or indirect motive to the prosecutor: Brown v Hawkes (1981) 2 QB 718; Trobridge v Hardy (1955) 94 CLR 147 per Kitto J at 163. In Trobridge Kitto J observed at 163: "Evidence which points to a particular motive which is a wrong motive goes directly to the issue of malice. It is true that such evidence may only establish immediately certain primary facts from which the step of drawing an inference has to be taken before the conclusion can be reached that the particular form of malice existed; but the route to that conclusion is a direct one, none the less. It is in this very respect that it contrasts with the second method referred to by Cave J. That is a method which follows the route - I see no difficulty in calling it the indirect route - of proving that the defendant's conduct is not to be explained by the existence of a right motive."

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According to EW this incident occurred in the morning before school. Her mother took the syringe with the blood to the bathroom and left it next to the sink. It was still there when EW came home from school. On her return from school, she continued: "She [her mother] dragged me into my bedroom and poured the blood on my bed sheet. She pulled the bottom part out and tipped it upside down. I had to leave it there the whole time I had my first period. I felt really dirty when I woke up in the morning because I had to sleep on it. Each night she took some more blood from me, in the kitchen, from my left breast, put it on my bed sheet. She did this for about seven nights. Each night she used a different needle. I watched her get it. My sheet had blood in the middle of it. In the morning the blood had sort of soaked in and it was a bit darker. Every time she did it she said, 'blood's coming out of you so you'll have to sleep in it'." 135 EW claimed that LW took blood from her breast about ten or twenty times. Sometimes she did it when EW was not menstruating, but most of the time it took place when she was menstruating. Her breast felt very sore and the procedure left a mark for a few days. 136 Constable Nicholson was a relatively junior officer who did not have investigative training. Detective Hill was assigned to the W investigation on 18 May. She had completed the Initial Response Officers' Course (IROC) in mid 1991. This course relates to the conduct of interviews with complainants in sexual cases. Since that time Detective Hill had been involved in a number of investigations of sexual assault complaints. Although she was not designated as a detective in 1994 her duties were investigative and she was working as a detective. She commenced working on the W investigation on 18 May. Initially she was assigned to interview JLW. As time went on Detective Hill found that she was giving directions to Constable Nicholson about matters in EW's statements that required clarification and investigation. Ultimately MOD assigned her to take over the further interviewing of EW. 137 Detective Hill conducted a number of interviews with EW in which she sought to clarify the allegations that EW had made in her statements.

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157 On Friday 29 April Detective Yeomans and Stephen Dinning, a DOCS District Officer, collected JW from Minali and took him to the Bankstown Police Station to interview him. 158 In the course of the interview that followed, JW made allegations that his mother had sexually interfered with him, that he had observed his father behaving sexually inappropriately with JLW and that he had heard his father having sexual relations with someone in the bathroom of the family home. 159 The circumstances in which JW came to make these claims were the subject of controversy. JW recalled being interviewed by Detective Yeomans and Stephen Dinning on 29 April. He said that during the course of the interview Detective Yeomans had asked Mr Dinning to leave the room and that Mr Dinning did so and was absent for around fifteen minutes. In the time that Mr Dinning was away, JW said that Detective Yeomans told him that what he, JW, was saying was "frog shit" (T 395.9). JW said that Detective Yeomans "just told me everything I was saying was lies. He said he knew stuff had happened, things had gone on" (T 396.50 - 51). Detective Yeomans was standing close to him as he said these things and JW felt threatened by him. 160 JW said that he had denied having any sexual contact with his mother or father before Mr Dinning left the room. He said that the three of them had left the police station to go to a nearby milk bar for lunch. After lunch he had been asked further questions along the same lines. He said that he had felt scared and tired and that after returning from lunch he had answered some of the questions differently. He was asked in chief: "Q. In what way did you answer the questions differently? A. I started to agree with some things. Q. When you started to agree with some things, were you answering Mr Yeomans' questions truthfully or untruthfully? A. Untruthfully. Q. Why were you agreeing with him in an untruthful way? A. I just felt scared. I didn't think I was gonna get out of there" (T 399.1 - 12). 161 JW said that Mr Dinning was present when he had started to agree with the questions put to him by Detective Yeomans.

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181 Mr Dinning recalled that Detective Yeomans had said to JW at some stage in the course of the interview words to the effect, "I have information about things that have gone on at home but I can't say those to you, I need you to tell me about them" (T 868.39 - 41). He was taken through the contents of the interview as recorded Detective Yeomans' notebook. He did not have a detailed recall of the sequence of events or of what had been said. He recalled that JW had been upset at one point during the interview. He had become teary when talking about some of the incidents. Mr Dinning was unable to recall whether he had observed a change in JW's demeanour when he returned to the interview room. Generally he said that JW had been quiet during the interview although "when he got on a roll with answering questions he would talk without a lot of prompting" (T 866.37 - 39). Mr Dinning recalled in general terms that JW had said the things that Detective Yeomans recorded in his notebook. 182 Mr Dinning recalled that the interview on 4 May had been less intense than the first and had involved Detective Yeomans going over the information that had been supplied on the earlier occasion and typing it up. Mr Dinning said that all three of them were able to see the computer screen as Detective Yeomans was typing. 183 I am satisfied that JW made the allegations concerning AW and LW that were recorded in Detective Yeomans' notebook during the course of the interview on 29 April. 184 Mr Dinning did not observe any threatening or overbearing behaviour by Detective Yeomans on either occasion. When asked in cross-examination if JW had appeared to be frightened of Detective Yeomans he paused before answering that he was not sure. He was not able to recall if JW had said anything about his feelings about Detective Yeomans at the time of signing the statement on 4 May. He believed that in a later discussion JW had said he did not like Detective Yeomans very much or something to that effect.

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186 After being taken out of Minali, JW was placed with his older cousin, LS, and her husband and children. LS first visited JW in Minali on a Sunday about a week after she became aware that DOCS had become involved with the care of the W children. JW was distressed throughout this visit. He told LS that he had been spoken to by Detective Yeomans. LS recalled that JW had complained that he had been sworn at by the police. She recalled that he had said that the police officer used the expression "frog shit". 187 LS visited JW at Minali about two or three days after her first visit. She had also spoken to him on the telephone. On each visit JW appeared to be scared. LS recalled that on the second visit JW told her that the police had come back to interview him again. He complained to her that the police were making him say things and that if he did not give the right answer he would remain at Minali. On both visits he cried a good deal. He appeared to LS to be confused. 188 LS was not able to recall whether she had visited JW on other occasions at Minali. She had spoken to him a lot on the phone. 189 After JW went to live with LS and her family he claimed that some of the things he had said to the police were not truthful. He asserted that he had been threatened with remaining in Minali if he did not speak to the police. LS described JW at this time as "a very confused young fifteen-year old boy that didn't know what was going on" (T 775.51). 190 After JW started attending a local high school, LS was contacted by the school librarian after an occasion when the police had called to speak to JW. LS went to the school and collected him. He was in a state of distress and complained that the police had threatened him with being returned to Minali if he did not talk to them. 191 In cross-examination LS was confident that JW had complained to her in the first day or two after he came to live with her that the police had told him he would go back to Minali if he did not talk to them. She said that JW's account that the police officer had sworn at him using the word "frog shit" was given in the course of her second visit to Minali. She was confident that JW had told her this before the occasion when she took him to see Ms Blumberg later in the year. LS agreed that in an affidavit sworn by her in connection with the Children's Court proceedings she had not given an account of JW complaining to her that the police had used the expression "frog shit" when she first saw him at Minali. Nonetheless she maintained that he had told her this on that occasion.

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197 Mr Dinning said that he had not thought quickly when Detective Yeomans asked him to leave the room to say that he would like to stay. Had he been more experienced he would not have left. I am satisfied that the request was made and complied with and that it was a notable incident in the conduct of the interview. Detective Yeomans' notes do not record the request or that Mr Dinning left the room. Detective Yeomans' evidence on this issue was unsatisfactory. He denied recall of having made the request initially although he did not assert that it had not happened. 198 I am satisfied that Detective Yeomans asked Mr Dinning to leave because he wanted to speak privately with JW. Ultimately he did not deny this to have been the case. On his version of the interview that is set out in his notes there is no reason for him to have made the request. 199 Mr Dinning said that he understood that JW was being interviewed as a victim and not in relation to his admissions concerning his sexual misconduct with his younger sisters. I am satisfied that Detective Yeomans thought that JW was the victim of abuse and that he asked Mr Dinning to leave the room in order to impress on him the need to give an account of it. JLW's complaints 200 On the day of her parents' arrest, JLW, an eleven-year old child, was upset and crying. She too was taken to Minali. After a very short stay there, accommodation was found for her with relatives. 201 On 16 May Constable Woolston interviewed JLW. In the course of the interview JLW was asked whether anything had happened to her at home that she did not feel comfortable with. She acknowledged that something had happened to her: JW used to touch her on her vagina. She gave an account of the last occasion on which such an incident had occurred. She recalled the time of day, what was on the television, that her mother was out doing the banking and that her father was at work. She was asked if she could identify another occasion when something had happened with her brother. She nominated a time when she and her brother had been fighting in the lounge room over what to watch on television. It was a pupil free day at school. This incident had occurred before Christmas 1993. It took place after EW's birthday in mid-October 1993.

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LW's claims concerning the events of 19 April 1994 LW's claim of unlawful arrest 227 LW was arrested at the family home on the afternoon of Tuesday 19 April. The timing of the arrest was the result of a decision by DOCS to take the children into care on this date. 228 Detective Yeomans and MOD attended the family home at about 3:00 pm on the afternoon of 19 April. They spoke with JS and were advised that LW was not yet home. They went around the corner where they spoke to officers from DOCS. SW was also present. As they were waiting EW arrived home from school. She saw SW and went up to her. The two girls cried and hugged one another. SW had not been in contact with her family for several weeks. Her unexplained absence had been a cause of concern to her mother. SW and EW left the scene in the company of DOCS officers. Detective Yeomans and MOD waited for LW to return home. 229 Shortly after 4:00 pm LW arrived. Detective Yeomans and MOD approached her as she was walking towards the front door. There is an issue concerning what was said to LW by the police at the time of her arrest and prior to the commencement of her electronically recorded interview (ERISP). Detective Yeomans recalled that MOD said he wished to speak with her about SW and that SW had expressed concerns about her. In a statement made on 20 April Detective Yeomans said that the exchange had been in these terms: "MOD said to LW, 'LW'. LW said 'yes, who are you?' MOD said, 'we're from the police. I'm Detective Sergeant MOD and this is Detective Yeomans'. LW said, 'yes, what's wrong?' MOD said, 'I want to speak to you about your daughter SW.' LW said, 'SW, where is she? What happened to her? I haven't seen her for weeks, I've been worried sick. What's going on?' At this point JS approached the group and asked 'what's going on, what are you here for?' LW said, 'they're police, there've come about SW'. JS said, 'what about SW. Where is she?' MOD said to LW, 'SW is OK. She has made a number of allegations and I want to speak with you at the police station about them'. LW said, 'when?' MOD said, 'I would like you to come with me now'. LW said, 'which police station are we going to?' MOD said, 'to Dee Why'. LW said, 'alright', and then she said to JS, 'Mum, you let AW know when he gets home'". 230 The conversation took place at the front of the house, close to the footpath. Detective Yeomans was able to hear everything that was said. 231 On giving evidence, Detective Yeomans recalled that there was some discussion between MOD and LW in the car on the trip to the police station. MOD informed LW of an allegation of a sexual nature against her relating to SW. He was not able to recall her response. He said that MOD cautioned LW in the car. After refreshing his recollection from the statement made on 20 April, Detective Yeomans said that MOD had said to LW in the car, "I've been told that your daughter SW has made a number of allegations. She has told us that you have sexually interfered with her", and that LW said, "What are you talking about. I've done no such thing." He said that MOD cautioned LW and that she responded by acknowledging that she understood the caution, adding, "There is no way I have interfered with my daughter. I love my kids."

[120]

233 MOD and Detective Yeomans gave evidence of the conversations with LW in terms that were consistent with their statements made shortly after the events. Detective Yeomans acknowledged that he may have been assisted in compiling his statement by reference to MOD's notes or statement. The statements that each gave of the discussion outside the family home at the time of LW's arrest contains no reference to EW. Both LW and JS, in contrast, state that JS came out of the house saying that EW had not come home. Both recalled that the police said something to the effect that EW was also with them. I consider it likely that there was some discussion concerning EW in which JS and LW were told that EW was in safe custody. EW was a schoolgirl aged thirteen. Her older brother and younger sister had come home from school this day in the ordinary way. EW's failure to come home was notable. It had not happened before. JS said that she was worried. I believed her. The logic of the situation rather favours acceptance of the evidence that in the course of the short discussion between the police and EW's mother and grandmother some reference to her whereabouts was made. 234 I am satisfied that LW was not told that she was alleged to have sexually abused her daughter until she was at the police station. LW impressed me as an honest witness. She was recounting events that had occurred around nine and a half years prior to her giving evidence. She acknowledged that her recall of some of the discussion was imperfect. She was confident of her recall of when it was that she first came to understand that she was the subject of allegations of sexual misconduct with her daughter. I am satisfied that her recall in this matter can be relied upon. She was also confident of her recollection of the effect of the conversation in the car. I accept her account. 235 LW was arrested outside the family home at a little after 4:00 pm on 19 April by MOD. It is not in issue that he did not pronounce formal words of arrest nor did he inform her of the reasons for it. In evidence he said that he considered LW to be in his custody from the time when he spoke with her outside the family home. Her mother was an elderly woman and, as I understood his evidence, he did not wish to cause her any unnecessary distress. 236 It is LW's case that her detention was unlawful. In her submission the failure to pronounce words of arrest and inform her of the reason for it made the arrest unlawful. 237 A separate challenge to the lawfulness of the arrest was the submission that its timing was dictated by the knowledge that DOCS was proposing to take the children into care. This consideration was said to have prompted MOD to arrest LW notwithstanding that he had no statement signed by the complainant alleging the commission of any offence. Allied to this was the contention that MOD arrested her not because he was possessed of a reasonable suspicion that she had committed an offence but as part of a strategy to apply pressure to her with a view to having her provide evidence against AW. 238 MOD and Detective Yeomans maintained that the decision to arrest LW had been influenced by their knowledge that DOCS were proposing to take the children into care. This is because such events would alert AW and LW to the investigation, creating a risk that they might destroy evidence or flee the jurisdiction.

[124]

242 LW was not informed either of the fact that she was under arrest nor of the reason for it. The principles governing a lawful arrest by a police officer without warrant upon reasonable suspicion were considered by the Court of Appeal in Adams v Kennedy [2000] NSWCA 152. Priestley JA (with whose judgment the other members of the Court concurred) held at [26] that the common law stated in Christie v Leachinsky [1947] AC 573 is applicable in New South Wales. His Honour referred to the principles enunciated by Lord Simon in that case at 587: "The above citations, and others which are referred to by my noble and learned friend, Lord Du Parcq, seem to me to establish the following propositions. (1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, for example, by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter." 243 The defendant sought to bring itself within the third of the propositions stated by Lord Simon. It contended that LW had been given some information as to the basis of her arrest when she was first spoken to by MOD in the presence of Detective Yeomans in the front garden of the family home. In written submissions it was argued that MOD's statement that, "SW has made a number of allegations and I want to speak with you at the police station about them" gave rise to the clear inference that allegations of child abuse had been made (WS at [82]). I do not accept this is so. Even if it were the inference to be drawn it would not satisfy the requirement that LW be informed of the true ground of her arrest. MOD and Detective Yeomans' evidence was that LW was arrested on the suspicion that she had committed sexual offences against her daughter, SW. Nothing said to her at the time of her arrest conveyed that fact to her. 244 In the defendant's submission it is necessary to apply the principles enunciated in Christie flexibly and with common sense. The presence of LW's mother at the scene of the arrest made it inappropriate to reveal the true reason for the arrest at that time. According to MOD and Detective Yeomans, once LW was in the police car she was informed that she was the subject of allegations by SW of sexual interference made by SW. The defendant submitted that the requirements of Christie had been complied with in substance and that the police should not be required to give details of the reason for arrest where, as in this case, there is a justifiable reason not to and the details are supplied reasonably promptly thereafter. 245 I do not find that LW was told the reason for her arrest in the police car. Even were I to accept the account offered by MOD and Detective Yeomans, I would nonetheless reject the defendant's submission. As Viscount Simon observed in Christie (at 588), there are practical considerations informing the requirement that a police officer inform a person who is arrested of the true ground for the arrest. It affords the person arrested the opportunity of giving an explanation. As Lord Du Parcq explained, the right to arrest and the duty to submit are correlative. If a person has a lawful reason for depriving another of his liberty that person must tell the reason since the person arrested cannot be expected to submit to arrest or blamed for resistance in the absence of knowledge of the reason (at 598). 246 LW submitted that her arrest was in any event illegal in that MOD did not have a reasonable suspicion that she had committed an offence at the time he arrested her.

[125]

247 Detective Yeomans was not present at any time on 19 April when it is said that SW made allegations of sexual misconduct involving her mother. Detective Yeomans was not able to recall anything about what was said to have been conveyed by SW to MOD in any discussion before the arrest of LW. It was Detective Yeomans' evidence that before he went out to the family home with MOD on 19 April he had been told by MOD that LW was to be arrested and charged. 248 MOD gave evidence that he suspected LW of having committed sexual offences on SW and of his grounds for that suspicion. The only material available to MOD to provide grounds for suspicion were the things SW had said to him on 17 and 19 April. There was no independent evidence that LW had committed any such offence. SW's allegations relating to LW were inconsistent with the allegations she had made in a formal statement on an occasion when the necessity for telling the truth had been drawn to her attention. MOD had not taken a formal statement from SW setting out the details of the allegations that she was now making about LW. 249 As noted above, it was the defendant's submission that once DOCS made the decision to take the children into care there had been urgency in ensuring that AW and LW did not escape justice or destroy evidence. This was said to have justified the arrest of LW notwithstanding the absence of a statement signed by the complainant particularising any allegation of any criminal offending. 250 This claim seems to me to be without merit. Either MOD had reasonable cause to suspect LW of having committed an offence or he did not. I do not accept that the circumstances were viewed as exigent. It was open to MOD to obtain a search warrant and to execute it at or prior to the time when DOCS removed the children. I do not accept that MOD had fears that LW might flee the jurisdiction. The prime focus of the investigation as at 19 April was AW, since SW had provided a detailed statement making a number of allegations of sexual abuse against him. No efforts were made to arrest AW at his place of employment. The children were taken into care in the course of the afternoon of 19 April. Police did not wait at the family home in order to arrest AW. AW was left to return to the family home in the usual course and, presumably, to learn that his children had been taken into care and that his wife had left in the company of the police. 251 I consider that LW's arrest was unlawful in that she was not told the reason for it. In the absence of a signed statement from SW particularising one or more offences which she claimed her mother had committed, I am not satisfied that MOD had reasonable cause to suspect that LW had committed any offence.

[132]

261 MOD said that the decision to charge LW had been made at the conclusion of the ERISP and after he had spoken to EW and learned from the DOCS officers that she had disclosed digital interference by her father. That EW's disclosures should have been taken into account in MOD's decision to charge LW is difficult to understand. EW made no allegation that her mother had sexually abused her, SW, or any other person. 262 I did not accept MOD's evidence that he had not make the decision to charge LW until after the completion of the ERISP. The notes taken by MOD of his interview with SW, commenced at 1:45 pm on 19 April, record that she asked him, "Are you going to charge Mum?" to which he replied, "I intend to". In cross-examination MOD maintained that he had said that to SW at a time when he had no fixed intention in this respect. He did not wish to give her the impression that her allegations were not believed. MOD maintained that the answer given to SW had not been an untruthful one, but that he had not made a decision to charge LW until a later point in time. In this respect he said that had LW chosen not to say anything at all at interview he would still have assessed what he had before him prior to proceeding with a charge. I do not accept that to have been the case. 263 MOD maintained that LW's demeanour during the interview and her lack of emotional response to the allegations was a factor that he took into account in determining to charge her. The video recording of the ERISP was not in evidence. The audio recording is exhibit 35. MOD, Detective Yeomans and Detective Burns (who said that he observed parts of the interview) were all of the opinion that LW had not shown emotion during the interview. The exhibit speaks for itself. At the conclusion of the interview it is to my mind apparent that LW was in a state of some distress. 264 MOD's account of his state of belief at the time he spoke with LW in the police station and thereafter at best indicates a view that she was in some way involved in the sexual abuse of her daughter. When asked in evidence in chief about any suspicion that he had concerning LW's commission of offences at the time he brought her to the police station, he said (T 1724.41 - 58): "A. I had suspicions that LW was implicated to some degree in alleged offences committed upon SW. I formed that point of view based on the statement taken by Cruickshank, my conversation with Doug Keir, my interview and observations of SW on 17 April 1994 at Woy Woy Police Station, the phone conversation and subsequent interview with SW on 19 April 1994 and the view that I had formed during the interview process with LW." MOD said this (at T 1725.38 - 40): "I had formed a view that there was an element of truth in what SW had alleged, I'd also formed a view sufficient to warrant the charging at that time of LW."

[148]

287 The second charge was a further count under s 67 that LW had carnal knowledge of SW, a girl under the age of ten years (nine years) (OLC 5159/4). This offence was particularised as occurring on 5 February 1985 at Beacon Hill. On 28 March 1996 at the committal hearing this charge was withdrawn and replaced by a charge brought under s 61D(1) of sexual intercourse with SW without consent, she being under the age of sixteen years (nine years). This charge related to an incident said to have occurred to SW on her ninth birthday. LW was the only person charged with any offence said to have occurred on SW's ninth birthday. 288 The evidence available to MOD at the time he preferred this charge against LW is based on SW's account in the second statement at paragraphs [40] and [41]: "[40] Another time I remember it was on my ninth birthday. Dad wasn't home so it may have been a Thursday night because Dad goes to the hotel on Thursday nights, but I'm not sure if he used to go to the hotel on Thursday nights back then. Mum had taken me into her bedroom with her and turned the light out which made me scared because I don't like the dark. There was some light coming in through the window from a light outside and Mum put something over my eyes and I remember feeling terrified. [41] I then heard a noise which I can't really describe and I felt something hard and cold being pushed into my vagina. It was sort of vibrating inside me and Mum pushed it right up inside me. It really hurt and when I made a noise because of the pain, Mum would push it further up against the inside of my vagina. Later Mum took away what was covering my eyes and, I don't recall much of what happened after that, but I do remember that I woke up in Mum's bed the next day." 289 In the Cruickshank statement SW had given a different account of the events of her ninth birthday (paragraphs [27] - [31]). She claimed that on that day her father had called her into the bathroom and forced her to fellate him. She had vomited into the bath. On the account given to Detective Cruickshank this was the first time she had been assaulted in this way.

[161]

312 In the second statement SW said that on 17 March her parents told her that they would be coming to see her the next night and they instructed her to be at home. They arrived at around 6:30 pm on Friday 18 March. Shortly after this Michael went out. She was then taken to the bedroom. Her account of the episode continues: "[120] They spread a plastic sheet down on the floor and made me get undressed. Dad and Mum got undressed and I had to lie down on my back with my legs apart and my knees bent. Mum put her fingers into my vagina, but I wasn't bleeding heavily enough. Dad then punched me in the stomach several times and then Mum would check to see if there was enough blood in my vagina from my periods. Dad then kept punching me many times until I started bleeding more heavily. [121] Mum then used her fingers and pushed them hard inside my vagina. After a while, she used this penis shaped dildo thing and pushed that inside my vagina. Dad had me held down by my shoulders while Mum was doing this to me. After Mum had been using the dildo thing on me she took it out and licked the blood off it. She then forced her hand up into my vagina and when she pulled it out she licked the blood off her hand. Mum put her hand back inside my vagina a number of times and each time she would lick the blood off her hand. Dad also licked the blood off the dildo thing and off Mum's hand. [122] Dad then had sex with me by putting his penis into my vagina. When Dad finished, Mum licked the blood off his penis. Mum then put her face down between my legs and started licking the blood around my vagina. When Mum had finished, her and Dad cleaned up and then left the house. [123] What happened that night wasn't the first time it had been done to me. It was done whenever I had my periods, and was usually done on the lounge room floor at home. Whoever was in the room at the time then had to lick the blood. I had also been made to lick the blood whenever my mother had her periods. [124] The following Monday, I saw Doug but I couldn't bring myself to tell him everything that had happened to me. I only told him that Dad had called around and had sex with me. [125] As a result of my counselling sessions with Doug, I decided to go to the police and report my father. At that stage, I didn't think I could face up to reporting what Mum had been doing to me. I was worried that if I told the police about Mum, then my brother and sisters wouldn't be looked after and I didn't want to get them involved because I was scared."

[178]

339 AW said that when he walked into the interview room MOD pointed to a seat and said, "Place your butt on that" (T 292.19). He did as directed and both MOD and Detective Yeomans sat down. AW said that he had been told that his wife had been charged with sexually assaulting their daughter, SW, and that the police had been advised that he had sexually abused SW and EW. AW said that he responded to the allegations saying, "Absolutely no way" (T 293.18). 340 The police had a warrant to search the family home. AW was taken by MOD and Detective Yeomans to the premises and was present when the search was carried out. He was in custody throughout this period. He saw JS and her son GS at the premises but he did not speak to either of them. AW recalled that MOD explained that the warrant allowed the police to search for items, including pornographic literature and sexual implements. 341 At the conclusion of the search AW was taken back to the interview room at the police station. After a little time MOD and Detective Yeomans commenced to interview him. The interview was recorded on video and audio tape. It commenced at 11:44 pm on 19 April and was concluded at 2:16 am the following morning. AW denied all the allegations that were put to him. 342 At the conclusion of the interview MOD informed AW of his intention to charge him with the sexual assault of SW. He was informed that other matters would be investigated. 343 AW said that after he signed the seals on the tape-recording of the ERISP, MOD had stood behind him and sniffed him saying, "You smell of B.O. That's the sign of guilt" (T 315.43). 344 AW was taken from the interview room to a small cell. He was left there for five or ten minutes until a uniformed police officer took him to another part of the police station where he was fingerprinted and his photograph was taken. After this he was put back in the cell for a period of twenty minutes to half an hour. Thereafter he was released on bail subject to conditions including that he not approach or make contact with any of his four children. 345 AW was charged with two offences that night. Each was preferred under s 61J(1) of the Crimes Act and alleged that he had sexual intercourse with SW without her consent, knowing that she was not consenting thereto in circumstances of aggravation. The first charged an offence at Manly Vale on or about 12 January 1994 (OLC 5161/1) and the second charged an offence at Manly Vale on or about 18 March 1994 (OLC 5160/2). He was charged with both offences at 3:14 am on 20 April 1994. 346 Detective Yeomans had no independent recall of the conversation between MOD and AW at the police station on the night of AW's arrest. He relied on the accuracy of a statement made by him the following day. Detective Yeomans gave no account of the sniffing episode following the interview. The matter was not taken up with him in cross-examination. I was not satisfied that AW's recollection of an incidental remark such as, "Put your butt on that" was reliable, given the strain he was under at the time and the lapse of years. I understood Detective Yeomans to deny that such a remark had been made. 347 Detective Yeomans said that a decision had been taken to charge AW prior to the conduct of the interview. In cross-examination it was suggested to him that he and MOD would not have wished AW to leave the police station after they became aware that he was waiting in the foyer area. He agreed that was so. AW was present in the foyer of the police station for a considerable period before being first spoken to by MOD. He understood that he was not free to leave from the time MOD first spoke with him and asked him to accompany him. There is no evidence that AW's liberty had been restrained at an earlier time. I consider AW to have been arrested at the point when he was first spoken to by MOD. The charges preferred against AW: the claim in malicious prosecution

[179]

348 The charge alleging an offence on 12 January 1994 was founded on the complaint of SW set out in the Cruickshank statement in paragraphs [97] - [103]. SW gave an account that she had been at her Manly Vale home when AW called. They went out into the backyard to where she had a number of guinea pigs. The sight of the guinea pigs brought back memories of earlier abuse. She became upset and asked AW to leave. She went into the house and closed the back door behind her. She went to shut the laundry door but AW let himself in before she could stop him. He grabbed her by the right upper arm and swung her around, pushing her shoulders together and pulling her towards him. He asked, "Why are you avoiding me?" and started to shake her. He moved her into the lounge room. He undid her jeans and shirt and pushed her bra up and started kissing her breasts. He pulled her underpants down to her knees and kissed her vagina. He instructed her to open her legs. She did not comply and he bit her. Then he had penile/vaginal intercourse with her. 349 SW said that after this assault she telephoned Douglas Keir and left a message on his answering machine. She was not due to see him again until 24 January. When he returned her call she arranged to see him a week earlier, on 17 January. She told Detective Cruickshank that she complained to Douglas Keir about this assault. 350 Material relied on in support of the charge alleging the offence on 18 March 1994 is to be found in paragraphs [105] - [109] of the Cruickshank statement. SW alleged that on that evening she had been at home by herself when she opened the laundry door to let her dog out and saw her father standing in the backyard. She made to close the door but he grabbed hold of her hand and took her inside to the lounge-room. AW pushed her to the floor and pulled her leggings down. He was angry that she was wearing a sanitary napkin and he punched her to the stomach two or three times saying, "This isn't going to stop me". He lay on top of her and had penile/vaginal intercourse with her. Afterwards he stood up and asked her, "Do you still get pain in your lower back when you get your period?" SW nodded and rolled over so as not to look at him. He kicked her a few times in the lower back and left. 351 The material available to the investigating police included that SW had continuing contact with Douglas Keir in the period between 18 and 30 March, when he accompanied her to the police station at the time when she spoke with Detective Cruickshank. Detective Yeomans agreed that it would have been appropriate to interview Douglas Keir before the charges were laid against AW. He was not able to say why a statement had not been taken from Mr Keir before AW was charged. 352 The timing of the decision to charge AW was said to have been at least in part the result of the decision taken by officers of DOCS to take the children into care. The perceived necessity to arrest and charge AW on 19 and 20 April, rather than to complete inquiries into SW's allegations including by taking a statement from Douglas Keir, may be questioned. I do not consider that the fear AW might flee the jurisdiction was one that was in serious contention in so far as MOD or Detective Yeomans were concerned. 353 I accept AW's submission that there was no pressing reason for MOD and Detective Yeomans to charge him on 20 April before undertaking further inquiries. As I have stated, I also think it likely that MOD arrested LW before her husband in the hope that she might provide police with information relevant to their investigation. Neither that finding, nor my view that it was open to MOD to have pursued a more cautious approach, means that his decision to institute the prosecution of AW on the two charges that were preferred on 20 April was without reasonable and probable cause. 354 SW had given a detailed account of the two alleged offences with which AW was charged. She was aged eighteen at the time she made the allegations. Detective Cruickshank took the statement detailing the allegations. She considered SW to be a credible complainant and had communicated this opinion to MOD.

[186]

362 The next charge was a further count under s 67 of the Crimes Act of carnal knowledge of SW, she being under the age of ten years (six years) (OLC 5160/6). This offence was particularised as having occurred between 3 October and 30 November 1982 at Beacon Hill. It was withdrawn on 28 March 1996 and replaced with a charge that AW had sexual intercourse with SW without consent, she being under the age of sixteen years (six years) (OLC 5160/42). This was an offence under s 61D(1). 363 The material relied upon in support of this charge is contained in paragraphs [28] - [32] of SW's second statement. SW said that she had a strong memory of something happening about November 1982 after JW and EW had their birthdays which were in October. The incident occurred at a time when LW was pregnant with JLW and before the Christmas tree had been erected. The Christmas tree was always erected in the last week of November. AW took SW into the bedroom and made her bend forward over something. LW was sitting on a chair in front of her while her father held her from behind. He then pulled his pants down and held her by the hair with one hand, with his other hand on her hip. She felt a strong pain as something was inserted into her anus. Her father pulled her head back by her hair and her mother slapped her across the face. As her father pushed into her she screamed and on each occasion her mother slapped her across the face. No charge was preferred against LW in connection with this incident. SW's account in the second statement continued in these terms (paragraph [32]): "Dad kept pushing backwards and forwards inside my bottom a while longer and the pain was really bad. Then he stopped moving inside me. Mum then said, 'does it hurt?' I said, 'yes'. Mum said something to, 'does it hurt more than anything we've done to you before?' I wouldn't answer and then Dad pushed himself forward hard up inside me. Mum asked me again and when I didn't answer, Dad did it to me again. Mum then left the room and came back with EW and sat back on the chair in front of me with EW on her knee. Mum then asked me the question again and when I didn't answer she said something about if I didn't answer her then they would do it to EW. Mum then asked me again if it hurt and I said, 'yes'. Then she said, 'more than anything before?' I said, 'yes'. Dad then pulled out from inside me and Mum put EW down and she wandered out of the room. When EW had gone I told Mum that I had lied and that it didn't hurt." 364 This incident was not referred to by SW at the time she made the Cruickshank statement. 365 SW was able to date this offence with some particularity. It occurred at a time when her mother was pregnant with JLW: after the assault her mother had been really angry with her and she remembered talk that she might lose the baby. JLW was born in December 1982. 366 SW appears to have given a different account of the incident in her interview with MOD at the police station on 19 April. He recorded that she said: "I remember a time M held me while D put his penis inside my bottom I think I was about thirteen because I had my periods when he did it."

[205]

387 The next charge was a count of assault occasioning actual bodily harm (OLC 5160/17). This offence was particularised as occurring between 31 May and 30 June 1992. The evidence relied on in support of it is contained in the second statement in paragraphs [74] - [78]. 388 SW said that around May 1992 she met her boyfriend, Michael. She was in Year 11 at school. About a month after meeting Michael she decided to leave school. Her father was angry with her about this decision. She and Michael were at the family home on the evening of the decision (or the evening after it). AW instructed Michael to leave. He yelled at SW and she walked away from him. As she did so she was struck a blow to the back of the head which caused her to lose consciousness. The next thing that she recalled was waking the next morning with her father kissing her goodbye as he was going to work. Her head was sore and she had a large lump on the back of the head. Michael came over and attempted to comfort her. He put his hand on the back of her head and it brushed the lump. She talked to him about it. During the day she kept blacking out and feeling terrible. A couple of days later Michael took her to a medical centre where she saw a doctor. 389 In the Cruickshank statement SW gave an account of this incident at paragraphs [75] - [79]. The account was consistent with the account contained in the second statement. 390 In a counselling session held on 29 November 1993 SW was said to have complained that the last time her father had been violent was about four months earlier when he had hit her in the head and she had blacked out for the whole evening (at paragraph [19]). This would put the date of the assault as around July 1993. 391 Michael made a statement on 29 May. He said that the day after SW quit school he had called to her home and the two of them had been sitting in the backyard. He put his hand on the back of her head and she quickly lent forward. He asked what was wrong and she said that she could not be sure of what had happened. She had said something about having been arguing with her father and that when she turned away she felt herself get a knock to the back of the head. She told Michael that she had been carried to bed and that she had woken in the morning with a pain at the back of her head. Later that night SW had passed out, falling to the floor in the kitchen of the family home. Michael offered to take her to the medical centre. SW did not want to go because she did not want to tell the doctor what had happened and because she would have had to wake up her mother to get her Medicare card. Ultimately SW agreed to go the medical centre. He had taken her and she had been examined by a doctor but she had not told the doctor the truth of what had happened (paragraphs [13] - [15]). AW - the assault on the night SW returned to the family home (OLC 5160/18)

[206]

392 The next charge was a count of sexual intercourse with SW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/18). The evidence in relation to this charge is contained in SW's second statement at paragraphs [90] - [92]. This is the incident that is said to have occurred on the first night that SW moved back into the family home in 1993. 393 In the Cruickshank statement SW gave an account that she had been the subject of one episode of sexual assault in the period when she resumed living in the family home. This occurred on the first night that she moved back home. She was in the garage packing some of her belongings. Her father came into the garage and pushed her onto the seat of the family car. He pulled her jeans and underpants down to her knees and attempted to have penile/vaginal intercourse with her. He was interrupted by the sound of the Silky Terrier, who was barking and scratching at the garage door. 394 Before moving to the expanded version of that assault contained in the second statement, it is to be noted that in the Cruickshank statement SW gave an account that in the period of one month when she was back at home her father had come into her bedroom on a number of occasions and kissed her in a sexual way before he left for work. On one of these occasions he had put his hand under the doona and her cat had scratched him. SW observed, "he didn't bother me after that" (at paragraph [88]). It is fair to say that SW's ultimate version of the assaults to which she was subject while living in the family home in mid-1993 was in marked contrast to the restrained account contained in the Cruickshank statement. 395 The annotations to the Cruickshank statement recorded by MOD on 17 April include: 'Between Mona Vale/Manly Vale - home first night (garage incident with dog) when I went to the home dad was walking away from mum (argument) mum said I would have to get rid of the animals (dog/cat) because they are getting in the way. That night 'get rid of the dog - it's getting in the way'". 396 In her second statement SW gave an account that on her first night living back at the family home her mother instructed her to go to the garage and her father had followed her, slamming the door behind him. She again described being pushed onto the front passenger seat of the parked car and of her father's attempt to have intercourse with her. Again, she referred to the Silky Terrier barking at the door. She now said that her father instructed her to take the dog into the house and that she did so. Her mother awakened EW and instructed her to go to the garage too. When SW returned she was made to lie down on a bench and her father had sexual intercourse with her. Next he had sexual intercourse with EW who was lying on another bench in the garage.

[211]

403 The annotations to the Cruickshank statement do not suggest that SW was offering a different account of the events of the night of JLW's eleventh birthday when she spoke with MOD on 17 April. 404 The complaints made by SW concerning her mother on 19 April did not include any allegation of misconduct on JLW's eleventh birthday. 405 In the second statement SW gave an expanded account of the events at the family home on the evening of JLW's eleventh birthday (at paragraphs [100] - [105]). On this occasion she said that she and Michael had gone to the family home for dinner. Again, she gave an account of a conversation with her father in the kitchen in which there had been discussion about birthdays. The terms of the conversation varied in a significant respect from her account of it given in the Cruickshank statement as I have noted. In the Cruickshank statement SW said that EW had walked into the kitchen and her father had gone back outside. She now asserted that EW had come into the kitchen and that her father had questioned both girls about their favourite birthdays, telling them that he and their mother needed to decide what to do with JLW that night. Neither SW nor EW answered the question so both were made to go into JW's room. AW was angry and made EW bend over a chest of drawers. He pulled her leggings down and had anal intercourse with her. Next he made SW bend over the chest of drawers and he had anal intercourse with her. He then again asked each girl questions about their favourite birthdays. 406 SW continued her account of events at the family home on the occasion of JLW's eleventh birthday, saying (at [103]): "Dad then left the room to leave EW and me to decide. Because of what had been done to us, EW and I agreed to tell Dad our favourite birthdays were when we got hurt the most. I told Dad that my favourite birthday was when he and Mum did it to me at the same time and EW told Dad it was when he put his penis into her anus. I knew it was cruel, but it had been done to us and I felt that we only got into trouble that night because of JLW." 407 SW gave an account of an assault on JLW that took place later that night. I shall set it out in full. "[104] Later that night, JS and Michael were in the lounge room and Dad and Mum got me, JW, EW and JLW to go into their bedroom. EW and I had to sit on the desk and watch and JW had to stand near the bed. Dad took his trousers off and was only wearing his shirt and Mum got undressed. Dad then put his penis into JLW's vagina while Mum put this penis shaped thing, which I think is called a dildo, into JLW's anus at the same time that Dad had his penis in her vagina. When Mum did that, JLW screamed out. [105] While Mum was putting the dildo thing into JLW's anus, JW was putting his fingers into Mum's vagina. When they had finished, JW had to put his penis into JLW's vagina and he had sex with her. While JW was having sex with JLW, EW and I were allowed to leave the room and I got ready to leave and go home with Michael. Mum and Dad came out of the bedroom just when I was about to go home. Michael and I went home, but he didn't ask me anything about what had happened." 408 Neither JW nor JLW gave an account of any incident such as this. 409 There are features of this allegation that strain credulity. The family home is of modest dimensions and the internal walls appeared to be of fibro construction. The combined lounge/dining room opens onto a short hallway, which gives access to the master bedroom. On SW's account she and her sister had been anally raped in a bedroom of the house while her partner sat in the lounge room apparently unaware that anything was amiss. After rejoining Michael for a time she left him to accompany her parents and siblings to the nearby master bedroom where her eleven year old sister was sexually assaulted. That JLW should have screamed out when subjected to simultaneous vaginal and anal intercourse is not surprising. That Michael sitting in the adjacent lounge room made no inquiry is. AW - the assault on 12 January 1994 at Manly Vale (OLC 5160/21)

[212]

410 The next charge was a count of sexual intercourse with SW without consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/21). It was particularised as occurring on 12 January 1994 at Manly Vale. It relates to the same event as was the subject of the first charge preferred against AW following his arrest on 19 April. The original charge sheets for the two charges preferred against him on that occasion were not in evidence. It was common ground that they did not form part of the charges before Magistrate Price at the committal hearing. A copy of the original charges described as the "informant copy" is exhibit D. The parties were agreed that I should approach the matter upon the basis that OLC 5160/21 was the charge proceeded with at the committal hearing and that the earlier charge had been withdrawn some time prior to the commencement of the committal hearing. 411 I have already detailed the allegations made in the Cruickshank statement upon which the first charge relating to events on 12 January was preferred. This is dealt with at paragraph [348] above. 412 In the second statement SW gave an account of the incident on 12 January that was broadly consistent with the version she had given in the Cruickshank statement. It did not, however, sit comfortably with the account that SW gave to Douglas Keir during a counselling session five days after the offence is said to have occurred. Mr Keir said that he received a telephone call around 12 January from SW telling him that something had happened and that her friend, Richard, had suggested that she contact him. She attended for a counselling session on 17 January. SW gave an account of the assault on 12 January to Keir: her father had called to her home and been on the verge of raping her when Richard walked in and saw what was happening. He had thrown her father out. As she sat afterwards on the couch crying Richard had comforted her and told her to call Mr Keir (first Keir statement, paragraph [50]). 413 In a further counselling session on 26 March, SW resiled from the account that Richard had turned up and saved her. She now said that her father had raped her on this occasion. AW - the assault on 5 March 1994 at Woolworths (OLC 5160/22)

[225]

432 The next charge was of assault occasioning actual bodily harm to EW, provided by s 59 (OLC 5160/34). This was particularised as having occurred between 1 November and 25 December 1993 at Sydney. The material relied on in support of this allegation is contained in paragraphs [20] - [22] of the statement made by EW on 10 May. This allegation relates to EW's account of having been taken to a home somewhere in Sydney where an abortion was performed on her on a kitchen or dining table. 433 In her first statement EW said that she thought she may have been pregnant prior to Christmas 1993 because she had not had a period for six weeks. She said that she had written a letter to Dolly magazine asking for advice. She posted the letter from a post office located at a distance from the family home so that it would not be traced back to her. Her mother bought a home pregnancy test and tested her urine. The result was positive. The following weekend her parents took her to a house (she had been taken to this house several times before) at which a man and a woman lived. She was made to remove her pants and to lie on the dining table. Her parents stood on either side of her while the woman watched. Her legs were spread apart and she felt a sharp, horrible pain between them. It was the worst pain she had ever felt. Her parents were holding her down and when she screamed again, father struck her a blow and everything went blank. She woke up in her bed later with a bad headache and pain in the lower part of her body. For a time after this she had bleeding from the vagina and a yellow and white puss-like vaginal discharge. 434 In her second statement EW gave a somewhat different account of the pregnancy test in November 1993. She said that a man had come to the family home and examined her, making her urinate into a little cup. He left her bedroom and told her mother that she was pregnant. The following weekend she was taken to the house where she had been made to lie on the kitchen table and the abortion had been performed on her.

[239]

451 In the past, complaints by children of sexual molestation were often not acted upon by the police. On occasions when such cases did come before the courts, the evidence of child complainants was treated with a degree of caution that is today seen as misconceived. The rule that required corroboration of the unsworn evidence of a child and the practice of warning a jury that it is unsafe to convict on the uncorroborated evidence of a child no longer form part of the criminal law of this State and did not form part of it in 1994. The fact that a child or young person may not make a complaint about a long history of abuse is well understood. It would be wrong for the police to dismiss a complaint of sexual abuse because it sounded improbable. However, it is one thing for an investigator to keep an open mind when dealing with complaints, including those that appear bizarre, and it is another to institute a prosecution for a criminal offence on the strength of an unsupported complaint that is incredible. The allegations that SW made in the second statement concerning the assault committed on 18 March seem to me to be of the latter kind. No matter how credibly SW may have presented in giving MOD her account of the assault on 18 March, he had available to him the version of the same incident that she had given to Detective Cruickshank a matter of weeks earlier. I have set out two versions at paragraphs [312] and [350] above. I consider that on the materials that were available to MOD as at 23 June a person of ordinary prudence and judgment would not have concluded that the prosecution of AW or LW for the alleged assaults on 18 March was warranted. I am of the same opinion with respect to the charges arising out of SW's complaint concerning the assault on her ninth birthday, the assault on the day that she was caught smoking, the assault on the night she moved back to the family home and the assault on JLW's eleventh birthday. 452 The charges arising out of the complaints made by EW are subject to the same general observations as those arising out of SW's complaint. It is to be noted that as at 23 June EW had not retracted her account of undergoing an abortion nor the allegation that her mother had removed blood from her breast with a syringe. Her allegations were bizarre, but as at the date that the prosecution was instituted on her complaint, she was not an admitted liar. 453 The complaint that EW made concerning the assaults to which she had been subject in the week prior to being taken into care were troublingly inconsistent. EW was describing events that had occurred relatively recently. I consider that a person of ordinary prudence and judgment considering the materials available to MOD on 23 June would not have concluded that the prosecution of either AW or LW on the charges relating to the sexual assaults in April was justified. I am of the same opinion with respect to the allegations made by EW concerning the assault on the day she had her first period. 454 The stark and unsatisfactorily explained inconsistencies in the accounts given by SW and EW that lead me to consider that particular allegations made by each of them were incapable of affording proof of guilt on the criminal standard without independent support must affect the weight that any rational trier of fact would accord to other of the allegations made by them. I have concluded that there was an absence of reasonable and probable cause with respect to the charges that were based on the complaints of SW and EW. 455 In coming to these conclusions I have not overlooked the report of Dr Quadrio dated 20 October 1995. In it she expressed opinions concerning both SW's credibility and the probability of the W children making up allegations of such complexity, in light of an interview with SW and having read the statements of EW and JLW. Dr Quadrio is a psychiatrist whose statement of qualifications refers to her years of experience, particularly with respect to post-traumatic stress syndromes and the sequale and child and adult sexual abuse. To my mind, the contents of Dr Quadrio's report does not touch on a consideration of whether the unsupported evidence of SW or EW was capable of establishing their complaints, that I have referred to in paragraphs [451] and [453] above, upon the criminal standard of proof. 456 I should also record that in coming to these conclusions I have not overlooked that Mr Walsh submitted a "no bill" application to the Director dated 13 February 1996 on behalf of the plaintiffs in which he detailed the inconsistencies in SW's and EW's accounts of these incidents and that a determination was made to proceed with the prosecutions in each case. THE 23 JUNE CHARGES: THE EXISTENCE OF MALICE

[241]

The formation of Task Force Maitland 458 In the defendant's submission, one matter that pointed strongly against an acceptance that MOD had been actuated by any improper or collateral motive in instituting the prosecution of charges against each plaintiff was the evidence that he did not know any member of the W family before he was assigned to the investigation of SW's complaint and that after coming to an appreciation of the size of the investigation he had sought to have it taken over by others. 459 MOD gave evidence that he had contacted Constable Crawford at the CMU, Chatswood to see whether the CMU was in a position to take over the W investigation. His duty book records a telephone contact with Constable Crawford on 3 May 1994. He was given to understand that the CMU was not in a position to take over the investigation because of its limited staffing. 460 Detective Holloway was attached to the CMU. He had some recall that MOD had suggested that the W inquiry be taken over by the CMU. He had indicated that this would not be possible because of the CMU's existing commitments. At the time he and Detective Crawford were the only permanent staff attached to the CMU. 461 MOD's duty book records that he made telephone contact with a person attached to Task Force Colo on 3 May. He said that he knew that Task Force Colo was investigating a number of sexual assaults and that he telephoned to see whether the allegations made by SW would fall within its terms of reference. He was unable to recall with whom he had spoken. In the event, Task Force Colo did not take over the investigation of the complaint. 462 On 24 May Assistant Commissioner Donaldson convened a meeting to consider the future conduct of the W investigation. A number of senior officers attended the meeting including Detective Inspector Ron Smith from the Crime Squad North Region. At this meeting it was decided that the investigation would be carried out by a Task Force to be named Task Force Maitland. 463 Detective Inspector Smith was appointed Task Force Commander and MOD was appointed as the Case Officer. Detective Inspector Smith was stationed at the Major Crime Squad North, Chatswood. He remained based at his Chatswood office. The Task Force was based at the Dee Why Police Station. Detective Inspector Smith received weekly situation reports on the progress of the investigation.

[244]

MOD's referral of Task Force Maitland's investigation to the Royal Commission into the New South Wales Police Service 467 Following the termination of the committal proceedings in favour of LW, JS and AW (save for the one charge involving SS), MOD prepared a report on Task Force Maitland dated 1 July 1997. He set out the history of the investigation, the care proceedings, the committal proceedings and his views on aspects of the investigation in the context of child complainants and related care proceedings. MOD gave evidence that he had made contact with investigators attached to the Royal Commission into the New South Wales Police Service and subsequently with the Police Integrity Commission about Task Force Maitland. His report was made available to these bodies. In the report MOD expressed his view that the investigation may have been compromised. 468 The defendant contended that MOD's conduct in the compilation of the report and in the referral of aspects of the Task Force Maitland inquiry to the Royal Commission should be seen as inconsistent with a conclusion that he had been motivated by any improper or collateral motive in the conduct of the investigation and in the institution of the charges against the plaintiffs. 469 MOD's conduct following the termination of the committal proceedings does not seem to me to cast light on the question of whether he acted with malice on 23 June (or 15 September) in instituting the prosecution of charges against the plaintiffs. The report is, in a number of respects, a self-serving document. Annexed to it is a document setting out MOD's account of the impact of the Task Force Maitland inquiry on him. It includes reference to various psychological symptoms that he claims to have suffered in consequences of the strain imposed on him by this investigation. I have already noted that MOD sought and obtained a discharge from the Police Service on the strength of having been hurt on duty as the result of his work with Task Force Maitland. The other officers' assessment of the credibility of the complainants

[247]

474 MOD was the only officer who was fully conversant with the allegations made by each of the complainants. It appears that a decision was taken not to inform the other officers attached to the Task Force of the allegations that each of the complainants had made. Detective Hill said that this was done to avoid the risk of contamination. A by-product of this approach was that none of the officers, save for MOD, appear to have known whether any of the allegations made by a complainant from whom they were taking a statement was supported by the account given by other complainants. 475 In Detective Hill's opinion the lack of information about the allegations made by other complainants did not pose any difficulty in the conduct of her investigations. The circumstance that a child might not refer to a particular incident (notwithstanding that other evidence tended to suggest the incident had occurred) was to be expected in dealing with child complainants. As I understood it, in Detective Hill's opinion the circumstance that SW and EW each came to give differing accounts of group sexual assaults involving the children, and that the other children gave no such account, was not a matter to which she attached weight in coming to a view about EW's credibility. 476 Detective Hill said that throughout her dealings EW had expressed a deal of emotion about her family. She was missing them and she loved her mother. Given this background, Detective Hill was inclined to ask herself why EW would make the allegations that she was making and what motive she might have to make false allegations if she did not believe the things she was saying to be true. 477 One matter bearing on Detective Hill's assessment of EW's credibility was her understanding that research suggested that children do not have the capacity to make up extreme allegations of this kind. As I understood her, Detective Hill was influenced by her acceptance of this research notwithstanding that EW, on any view of the matter, had shown herself capable of telling elaborate lies about sexual matters. Detective Hill maintained that she had believed what EW was telling her to be truthful. She conveyed to MOD that, in general, she could see no reason to doubt what EW was saying.

[251]

482 MOD denied that there had been any unprofessional element to his relationship with SW throughout the period of the investigation and the related court proceedings. It was his account that some time after the conclusion of the committal hearing he met SW by chance and, over time, they formed an intimate relationship. 483 As at February 2004 MOD and SW were still living together in a de facto relationship. 484 The only direct evidence suggestive that an intimate relationship between MOD and SW had developed during the course of the W investigation came from EW. Contact between EW and her parents was resumed not long before the hearing of these proceedings commenced. At this time EW was married and living in a regional centre in New South Wales. 485 Around Christmas 2002, on a visit to the family home, EW told her mother that SW was involved in a relationship with MOD and that the two of them had attended her wedding. At the time of this disclosure EW was aware that her parents had commenced the present proceedings. 486 EW gave evidence of seeing SW and MOD on an occasion during the investigation when she was living with her uncle and aunt on the Central Coast. She thought that this had taken place at a time prior to her making her first statement on 10 May 1994. SW had come to visit her and EW was "fairly sure" that MOD had driven her. SW and MOD were behaving in an affectionate way in her presence when they were "just outside the house". The two of them were hugging and holding hands. SW told EW that she really liked MOD and that she had never felt this way about anybody else. She said that she knew it was wrong and that no one could know because MOD was a police officer involved in the case. 487 EW said that SW had told her that she loved MOD and that she was sleeping with him. She thought that SW had said this to her in 1994 but she was not able to say exactly when. 488 During the committal hearing EW stayed in the same house as SW for about a week. During this period EW said that SW received telephone calls from MOD every night. The calls lasted for about half an hour. EW claimed that she had heard SW saying that "she loved him and she wanted everything to be over so they could be together" (T 653.10 - 11). 489 EW identified a number of photographs of MOD with SW. The earliest photograph depicting the two together on a social occasion was at EW's eighteenth birthday party. This would have been around October 1998. 490 EW said that she had stayed overnight at MOD's Narrabeen apartment. On these occasions SW slept in the master bedroom with MOD. EW had also stayed with MOD and SW at premises on the far South Coast.

[252]

491 EW was an unsatisfactory witness. She was cross-examined at length concerning the allegations that she had made in her statements to the police. She was unable or unwilling to offer any explanation for having made them. She was reluctant to acknowledge that she had made some of the allegations contained in her statements. I am satisfied that she did make all of the allegations contained in her statements. On more than one occasion when it was put to EW that she knew her allegations were harmful to her father she responded by saying, "I'm not sure". This was disingenuous. 492 EW acknowledged that in a statement made on 24 June 2000 to Mr Walsh, the plaintiffs' solicitor, she had given an account that at a conference with the Crown Prosecutor and another lady prior to the committal proceedings she had been told that she had to stick to her story or otherwise she would get into big trouble. In evidence EW maintained that she had been given advice of this character in a conference with the Crown Prosecutor before the committal hearing and that she had felt intimidated by it. Indeed, she agreed she had felt so intimidated that she had lied at the committal hearing. She also maintained that she had told various police officers, including Detective Hill, that the allegations that she had made in her statements (apart from those the subject of the retractions) were false. I did not accept EW's evidence in either of these respects. 493 In the course of final submissions Mr Campbell contended that I would accept EW's evidence concerning the relationship between MOD and SW because she had not been challenged on this aspect of her account. It is necessary to say something about this submission in order to put it in context. 494 EW's cross-examination commenced on the afternoon of Wednesday 3 September 2003 and continued throughout Thursday 4 September. Before the morning adjournment on the second day of cross-examination counsel was taking her to each allegation that she had made in the course of one of her many statements. She was repeatedly invited to explain why she had told each lie in the statement. This elicited answers such as "I'm not sure" and "I don't know". She became noticeably distressed and it was necessary to enquire if she needed a break (T 686.23-25). She responded that she wished to continue and that she "just want to get it over with" (T 686.26). Counsel resumed with the line of cross-examination that he had been developing before EW lost her composure. Shortly after this Mr Bartley objected, submitting that the cross-examination was "unnecessarily offensive" and that it did not go to an issue since no one was asserting that EW had told the truth to the police officers. The cross-examination seemed to me to have had substantial probative value with respect to EW's credibility and I allowed it. The objection is recorded at T 687. A further submission relating to the cross-examination is recorded at T 699. 495 Cross-examination continued after lunch with EW responding increasingly frequently to questions with "I can't remember" or the like. On more than one occasion it was apparent that EW was somewhat distressed. The quality of her evidence is reflected in the exchange at T 710.30-57: "Q. Now you've just, if I understand you correctly, said to me that you did not - it is not a matter of not remembering - you did not give the facts, tell this information to Julie Hill, is that what you tell me? A. I don't know, I can't remember any of this. Q. You can't remember, but you just said to me 'no', you didn't, a minute ago? A. I can't remember any of this. Q. Why did you say to me 'no'? A. I don't know, I just - I cannot remember this stuff and I don't know how many times I have to say it. It can't remember. Q. But you didn't say 'I can't remember' you said, 'no' you see? A. Well, I mean I cannot remember, I cannot remember. Q. Can I ask you this then, why when the truth was you can't remember did you give me the answer 'no'? A. I was confused at your question. I cannot remember this. I am confused with all of this. I cannot remember it. Q. Do you tell me you cannot recall ever being interviewed by Julie Hill? A. I cannot remember this, I remember." 496 There was a deal more in this vein. 497 On the morning of Friday 5 September before resuming the cross-examination of EW I indicated to the parties a provisional view that, having regard to the fact that EW had told lies on a previous occasion when under an obligation to tell the truth and in light of the quality of her evidence given the previous day, it would be difficult to accept an assertion made by her in the absence of independent evidence (T 729-735). The parties sought and were given a short adjournment to consider the position. On the resumption of the hearing Mr Donovan stated that he had determined not to ask further questions of EW. Mr Bartley indicated that on the plaintiffs' behalf no point would be taken with respect to the failure to take up with EW each previous representation about which EW was said to have lied. He did not make such a concession with respect to her evidence about the relationship between SW and MOD. However, it is appropriate to note that he went on to foreshadow that on the plaintiffs' behalf it would be put that other evidence would establish that by 9 May EW was a deeply emotionally and psychologically disturbed thirteen year old and (at T 733.30): "That is we expect to be able to lead evidence, we will be leading evidence which we would hope would ultimately persuade your Honour that EW could not be held entirely responsible, perhaps not responsible at all for her mental state at the time of making those statements. We've raised that with Mr Donovan. Obviously that doesn't lead, I would have thought, to the need for any further cross-examination. To be fair to my friend, that is the position that we will be seeking to develop in relation to your Honour's, if I may say so, fairly communicated preliminary view." 498 Mr Campbell did not put any submission on behalf of JS qualifying that put by Mr Bartley on behalf of AW and LW in this respect. In light of the submission that I have set out above made in the context of the discussion at the commencement of the hearing on 5 September, I do not consider that counsel's failure to cross-examine EW on her evidence concerning the relationship between MOD and SW should lead to an acceptance of it being unchallenged. 499 I am mindful that EW was a child of thirteen when, for whatever reason, she told elaborate lies about her parents and grandmother. I recognise that it may be difficult for her to come to terms with the harm that she did to them. Nonetheless, her unwillingness or inability to offer an explanation for her behaviour, her reluctance to admit that she was the author of a number of the false allegations contained in her statements and the impression that I formed of her led me to conclude that she was unreliable and that her evidence was not to be accepted in the absence of independent evidence to support it. 500 The plaintiffs submitted that independent support for EW's evidence that an inappropriate relationship between MOD and SW was in existence at late April/May was to be found in the following: (i) MOD's visit to the Central Coast with SW to visit on Sunday 8 May 1994, recorded in his duty book (this was before EW made her first police statement); (ii) The circumstances surrounding the taking of the statement from SW dated 26 April 1994; (iii) Photographs eloquent of MOD and SW being a couple as at October 1998. (iv) Statements made by MOD to his psychologist in the course of counselling sessions.

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505 The amount of time spent by MOD taking the second statement and generally attending to SW's welfare in the period 26 April to 17 May 1994, making allowance for her distress and difficulty in disclosing matters, was very considerable. During this time he arranged for the care of her pets, took her to the Department of Social Security to help her make an application to obtain welfare benefits and drove her to collect her belongings from various places. In the period between 26 April and 16 May an examination of MOD's duty book and the second statement suggests that he spent something in the order of 100 hours in SW's company. For much of this time MOD was relieving as the Chief of Detectives at the Dee Why Police Station, which, no doubt, imposed added responsibilities on him. MOD complained of the shortage of resources available to him to carry out the investigation. Notwithstanding this he devoted his entire duty on Sunday 8 May to collecting SW from her accommodation and driving her to and from the Central Coast so that she could see her sister. He did this, he said, in an attempt to restore some normality to the girls' lives. 506 Detective Senior Sergeant Sterling, the manager of the Joint Investigation Response Team with the Child Protection and Sex Crime Squad, saw nothing inappropriate about the fact that the interviews conducted by MOD with SW had been concluded without a support person or other officer present. In her opinion it was not inappropriate that MOD should have driven SW to and from her accommodation by himself. Detective Sterling noted that SW was aged eighteen at the time and that there had been no requirement to observe the protocols designed for the interviewing of child complainants. 507 At the time of this investigation MOD was receiving counselling from a psychologist employed by the Police Service. On 18 May 1994, two days after SW signed the second statement, MOD attended a counselling session with the psychologist. She recorded the following notes of the session held on that day: "MOD has picked up a CSA - ritual abuse case from OIC. Developing heavy victim involvement? Over involvement & possible transference problems. Pointed out to him need to maintain objective collegiate RP. Will need de-brief of heavy emotional reactions to child trauma esp. given his own physical abuse history." 508 MOD explained the reference to a history of physical abuse as being to his father's use of physical discipline when he was a child. There is no evidence that MOD was the subject of sexual abuse. Conclusion - the commencement of the relationship between MOD and SW

[258]

513 The photograph of SW and MOD taken at EW's eighteenth birthday does not assist to establish when their sexual relationship commenced. It is to be observed that the attractive young woman shown in the photograph does not necessarily correspond with the labile, chain-smoking, anorexic girl that Detective Cruickshank described. 514 The plaintiffs submitted that I would more readily draw the inference that the relationship between MOD and SW had become an intimate one around May 1994 because the defendant did not call SW to contradict the evidence given by EW on this topic: Jones v Dunkel (1958-1959) 101 CLR 298 per Kitto J at 308. 515 EW's evidence of the nature of the relationship between MOD and SW consisted of both her observations of the two of them on the occasion when they visited her on the Central Coast (and on subsequent occasions when she saw them together) and of the representations made to her by SW. The latter evidence was admitted over the defendant's objection pursuant to the provisions of s 63 of the Evidence Act 1995 upon the basis that SW was a person not available to give evidence about an asserted fact: AJW v State of NSW [2003] NSWSC 803. 516 After EW's evidence of SW's previous representations was admitted, MOD gave evidence in the defendant's case. It emerged at that time that SW and he were living together in a de-facto relationship. It was not clear that the defendant was aware of MOD's address (or that MOD was living with SW) at the time when EW gave evidence. As I understand the plaintiffs' submission, by the time MOD was called, although his address was confidential, it was reasonable to assume that the defendant could have arranged for the service of a subpoena on SW. In the course of closing submissions it was put that SW was a person "in the camp of the defendant" (T 2872). 517 The first time that the question of the failure of the defendant to call SW was raised was in closing submissions. Notwithstanding that it emerged in the course of MOD's evidence that he was living in a de facto relationship with SW, I am not of the opinion that she is to be viewed as being necessarily in the camp of the defendant. I am, in any event, of the view that the evidence falls short of giving rise to an inference that as at May-June (or September) there was an intimate relationship between MOD and SW. The evidence does not enable me to determine when the sexual relationship between MOD and SW commenced. I do not find that an intimate relationship had been formed between them at any time in 1994.

[262]

523 Mr Walsh, the plaintiffs' solicitor, issued a subpoena addressed to MOD in the care proceedings. It required production of documents relating to the investigation at the Children's Court. A copy of the subpoena which was returnable before the Campsie Children's Court on 5 October 1994 forms part of exhibit F. The schedule required the production of documents, including "all notes, memoranda, records of attendances upon all persons who have supplied or given any information into you in respect of your inquiries in relation to investigations of allegations of sexual assault involving SW, JW, EW, JLW, SS, KS." 524 To the best of Mr Walsh's recollection the documents produced in answer to the subpoena did not include a copy of the annotations to the Cruickshank statement. Mr Walsh came to learn of the existence of these notes in the course of cross-examining MOD in the Children's Court proceedings. He made a call for the document on 5 December 1994 and it was produced. 525 MOD recorded the fact of this interview in which he made the annotations to the Cruickshank statement in his official police notebook. The notebook entry states: "Notes recorded on copy of statement by Cruickshank." (Exhibit 28 at p 27). 526 The plaintiffs' contention is that after making the annotations to the Cruickshank statement (and recording the fact of so doing in his notebook), MOD came to the view that some of SW's allegations were too fanciful for belief. Thus, he did not direct her attention to them in taking the second statement and he deliberately chose not to produce them in answer to the subpoena. 527 The notes were produced in answer to the call. It is not suggested that any part of them had been obliterated. 528 The fact that police officers are issued with official police notebooks is a matter that in 1994 was likely to have been known to any legal practitioner engaged in the conduct of criminal cases. A police officer of MOD's experience might be expected to have been aware that relevant entries in his official police notebook were likely to come to light in the course of criminal proceedings. Given that MOD recorded the making of the annotations to the Cruickshank statement in his official police notebook and that he produced the notebook in answer to the subpoena I am not persuaded that I should infer that in failing to produce a copy of the annotations to the Cruickshank statement he was actively seeking to conceal the fact of their existence.

[270]

The failure to serve the first Keir statement 540 The plaintiffs' case was opened on the footing that MOD deliberately sought to conceal the first statement made by Douglas Keir. This statement was taken by Detective Yeomans. It set out chronologically the disclosures that SW made to Mr Keir in the course of his counselling sessions with her. A number of inconsistencies emerge in comparing the claims that she made to Mr Keir with her later statements to the police. 541 On 7 July 1994 MOD took a second statement from Douglas Keir in which Mr Keir expressed opinions about the tendency of sexual assault victims to bury memories of sexual abuse and the like. 542 The police brief of evidence in the prosecution of AW and LW appears to have been served at court on 4 August 1994 (s 48D(1) notice, exhibit K). Annexed to the notice is a document recording the details of statements that form part of the brief. It would seem that only one statement made by Douglas Keir was served. 543 It was not in issue that the statement made by Mr Keir that was served was the second statement dated 7 July 1994. The evidence did not establish who completed the Form 1 document. MOD said that that both statements had been served by the police on the Director. He offered the suggestion that the Director may have considered that not all the statements were relevant to the criminal proceedings. The relevance of the first Keir statement to the criminal proceedings against AW and LW, based as they were on the allegations made by SW, seems to me to be apparent. I am not able to say whether MOD served the first Keir statement on the Director. However, I do not find that any failure to serve it was as the result of a decision made by MOD to conceal its existence. In this regard I note that the second Keir statement was taken by MOD and refers in terms to the fact that on 30 May he made a statement at the Dee Why Police Station in relation to the counselling that he had provided to SW (Keir statement 7.7.94 at [5]). The concealment of the claims of ritual abuse 544 At the time that Task Force Maitland was formed MOD reported that the W investigation had overtones of ritual sexual abuse. The significance of this to the plaintiffs' case seemed to me to be twofold. Firstly, the contents of a briefing given by MOD to staff of the Manly DOCS office on 18 May in which it appears at the least he engaged in speculation about wild and improbable abuse was itself said to evidence malice. Secondly, the claim that MOD concealed fanciful allegations from the plaintiffs in an effort to maintain SW's credibility extended to the claims of ritual abuse. Initially the plaintiffs' particulars of malice included that the police officers had failed to investigate aspects of the ritual abuse allegation, however, these were ultimately not pursued. 545 MOD was given a booklet on the topic of ritual sexual abuse by Ms Kendall, who was working with the Sexual Assault Unit at the Royal North Shore Hospital. At a counselling session with Sergeant Wickner, the psychologist, on 18 May, MOD discussed ritual sexual abuse and she gave him an article about it. The article contained reference to what was said to be a reported case of infant sacrifice.

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546 After his counselling session with Sergeant Wickner MOD attended a meeting with DOCS officers. There are two documents recording the contents of that meeting: a running sheet created by MOD on 18 May and entered into the TIMS system on 4 July (running sheet 1/9/3, volume 7) and a record (incorrectly dated 19 May) apparently prepared by the Assistant Manager of the Manly DOCS office (the DOCS meeting notes): exhibit P. The running sheet records: "About 1:45 pm on Wed 18 May 1994 went to DOCS Manly and spoke to Michele McPherson, Annie Fraser and Steve Dinning re W matter. I had collected documents from Sgt Kate Wikner at Psychology Unit on ritual abuse including actual reported case. Spoke to DOCS about matters disclosed during W investigation and spoke generally about ritual abuse and suspicions. Fears of where matter could lead as information bears striking similarity to research done on ritual abuse. Spoke about reported case involving sacrifice of infants, eating of flesh and … (indecipherable) large scale organised involvement including relatives and friends including members of medical profession. Information obtained during interview with SW about activities within her family very similar to much of abuse as reported in literature. SW had mentioned when asked that outside persons have been involved and that she has been taken to a place she identifies as 'the big room' where adults had sex with her and other children were present. Couldn't identify location and didn't wish to discuss matter further as she found it too hard to talk about. (Seemed sincere and truthful - possibility of perhaps disclosing information later, concerning outside family persons. Possibly that relatives could be involved?)" 547 The DOCS meeting notes recorded, inter alia: "On 19/5/94 MOD from Dee Why Police met with Michael McPherson, Assistant Manager and District Officers Annie Fraser and Steve Dinning. During this interview the following information, in addition to the sexual assault detailed previously in this report was given, following their taking statements from the children - · Children were taken to a variety of houses in the local area where they were given what was referred to as a 'special drink'. This is believed to be some form of stupefying drug. · SW has been able to identify some of these addresses to the police and they have the details on six locations. Two of these locations were believed to be family members who lived nearby. · At these locations they were sexually abused by multiple adults. One family member other than the parents were involved. · Adults referred to one house as the 'big house'. This house has not been located to date. · At the 'big house' at least two terminations of pregnancy, involving children, are believed to have occurred. EW has disclosed her being taken there towards the end of 1993 and having an abortion carried out without anaesthetic whilst she was being held down by her parents. · The abuse in the 'big room' involved rituals that occurred around the girls' menstrual cycles. · The adults dressed up in 'funny' clothing. · The children were medically examined in the 'big room' every two months and blood samples were taken. Sexual activity was unprotected. · There is some suggestion of the 'sacrificing' of one infant occurred. · Pets were killed and used as threats to the children. " 548 In his running sheet entry MOD drew a distinction between information obtained from SW and his suspicion of ritual abuse based on the literature. The DOCS meeting notes, if they are an accurate record, suggest that he was less restrained in the claims that he made about the W investigation in the course of the meeting. 549 MOD gave no evidence that SW had made allegations of sexual abuse involving anyone other than members of her immediate family. Apart from the incident in the park on the night of the school disco, all the sexual abuse was said to have occurred in the family home and at the Manly Vale and Mona Vale premises at which she had resided in 1993. MOD gave no evidence that SW complained of ritual abuse at "the big house" nor of a number of the matters that are recorded in the DOCS meeting notes. 550 The evidence does suggest that MOD carried out investigations involving the observation of various addresses on 16 and 17 May. On 16 May he took SW with him in this connection. The following day he was accompanied by Constable Cordery. These activities are recorded in his duty book. On 15 and 16 May SW was brought to the police station and given the opportunity to read through her second statement to see whether there was anything in it that she wished to change. It does not appear that she made any changes. There is no record that SW made any additional allegations concerning the involvement of other persons in sexual abuse of her or of other members of her family. 551 Detective Yeomans had no recall of discussions with MOD concerning the contents of the running sheet or the DOCS meeting notes. The assertion that the children had been taken to a variety of houses and given a stupefying drug was not one that he recalled. Had such an allegation been drawn to his attention he expected that he would have remembered it. He had no recall of SW identifying addresses in the local area at which abuse had taken place. He had no recall of any claim that children had been subjected to sexual abuse by a number of adults at any premises. He had a recall of the term, "the big house", but he was not able to remember details about the use of that expression. He recalled becoming aware of an allegation relating to the termination of a pregnancy. He was not able to recall when he was made aware of that allegation or by whom. He knew of no claims relating to the sacrificing of infants or the killing of pets, save that he was aware SW had made an allegation concerning the killing of her cat, Garfield. 552 Detective Burns recalled that MOD had kept him informed about the progress of the W investigation. Detective Burns had some recall of hearing the expression, "the big room" in connection with the W investigation. His impression was that the allegations of abuse related to events that had occurred in the W family home. He had no recall of being informed of an allegation that rituals occurred around the girls' menstrual cycles at "the big house". He said that MOD may have told him of allegations about the conduct of medical examinations of children at "the big house", but he had no recall of the matter.

[272]

553 Detective Hill gave no evidence of being informed of allegations such as those referred to in the running sheet or the DOCS meeting notes. 554 The only record suggestive that SW may have made an allegation of sexual abuse involving some wider group of persons is the record of interview conducted by MOD with her on 7 September 1994. In that interview MOD recorded that at an earlier stage of the investigation he had told SW of his suspicion that other people may be involved in the abuse apart from her mother and father. The record of interview suggests that SW acknowledged that had occurred but that she had not wanted to discuss the matter. As at 7 September her attitude was that she still did not wish to discuss the involvement of others in the abuse. I do not overlook that in an affidavit sworn on 21 June in support of an application for a warrant to authorise the installation of a listening device in the family home MOD deposed to SW having disclosed to him in discussions that other adults visited the family home and engaged in sexual acts with her. 555 Neither the evidence given by MOD nor the record of interview of 7 September suggests that SW was the source of the claims of ritual abuse recorded by MOD in the running sheet. It does appear that MOD made some investigations involving the identification of addresses. MOD's evidence left somewhat unclear what, if anything, SW had conveyed to him about the addresses. 556 The reference in the DOCS meeting notes to children being taken to a variety of houses in the local area where they were given a "special drink" is not a claim recorded in any of the statements available to MOD as at 18 May. On the evening of 17 May MOD recorded in his duty book that he had a telephone discussion with PS concerning the disclosures made by SS. In the course of this discussion he said that he had been told that SS now wished to tell him about LW giving him "children's wine". 557 In a memorandum to senior officers from Inspector Allan, Staff Officer attached to the Warringah District Officer, advising of the establishment of Task Force Maitland, it was noted that inquiries had indicated that other children of the family had been assaulted by the parents "and other unknown adults". It was said that, "there are indications of ritualistic overtones". 558 It is probable that MOD suspected that he was investigating a paedophile ring and that he was influenced in coming to this view by the literature he received from Ms Kendall and Sergeant Wickner. It is apparent from the running sheet that MOD was operating partly on his suspicion that the investigation might lead to the disclosure of persons outside the family and other relatives. While the DOCS meeting notes may not accurately reflect the information that MOD provided, the likelihood is that at the briefing MOD gave an account of the W investigation that was coloured by his suspicion of ritual abuse and in this respect was lacking in objectivity. The reference in the DOCS meeting notes to children being taken to a variety of houses and given a special drink and to the identification of a number of addresses by the police are specific and have echoes in aspects of the investigations to which I have referred on 16 and 17 May. They represent an enhancement on the information that was, as a matter of fact, available to the police at the time. 559 My conclusion that as at 18 May MOD believed that he was investigating a paedophile ring and that he conveyed that suspicion to officers of DOCS does not seem to me to evidence malice with respect to the prosecution of the charges that he instituted against AW and LW. He may be thought to have fastened too quickly on a view that SW's claims were suggestive of organised paedophile activity, but I do not consider that it points to any ulterior or improper motive in the institution of the prosecution of AW and LW. 560 I turn to the question of whether MOD concealed improbable allegations to prevent them adversely affecting her credibility. Either SW gave an account of being taken to the big house and of adults dressed in funny clothing or she did not. In the event that she did MOD either made no record of it at the time because from the outset he realised that such allegations were inherently improbable and would tarnish her credit, or he later came to this view and destroyed any statement or notes recording the allegations. Neither of these alternatives seems to me to be likely. 561 MOD made the running sheet entry on 18 May. This was six days before Task Force Maitland was established. It would seem that there was some delay in entering all the records created in connection with the investigation into the TIMS. MOD's running sheet was not entered into the system until 4 July. If SW had made allegations prior to 18 May of the character of those in the DOCS meeting notes and MOD had not recorded them because at the time he considered them to be incredible it is difficult to see why he would have created the running sheet. If sometime after SW made the allegations MOD decided to conceal that fact one might have expected that he would have concealed the running sheet. In early July, at a time when the prosecution had been taken over by the Director, MOD appears to have made the running sheet available for entry into the TIMS. I do not draw the inference that MOD deliberately concealed material relating to ritual abuse. The pressure applied to JW at the interview on 29 April

[278]

I have concluded that Detective Yeomans was not possessed of any motive at the time he was involved in the institution of the further charges against AW and LW (and in particular the charges against LW arising out of JW's complaints) other than to bring them to justice in respect of offences that he believed them to have committed. For these reasons I have concluded that Detective Yeomans' conduct of the interview does not evidence malice. The criticisms of the conduct of the investigation 571 The plaintiffs plead as particulars of malice a number of matters going to the sufficiency of the investigation of the complaints made against them. (i) Garfield 572 One of the more extreme allegations that appears to have been made by SW in the interview with MOD on 17 April was recorded as follows: "When I was ten or eleven Mum came in and tell me that Dad was ready for me in their room. This happened a number of times each week until I left home. If I said no Mum would grab my cat or some other animal in the house (dog/cat) and put a knife to its throat. And say, 'he wants you now'. Mum put cat on tyre and Dad ran over it a few times in front of me - just come home from school, I had just finished my periods. The day before and so I knew it was going start again so I stayed at the lookout all night. Mum said, 'if you do it again there are plenty of other animals.'" 573 SW's claim that her pet cat had been placed on the tyre of the family car by her mother and deliberately run over by her father was one allegation that in the plaintiffs' submission it had been open to MOD to investigate and verify or disprove. His failure to do so was said to evidence malice. 574 LW gave evidence that SW had a cat named Garfield when she was still in primary school. Garfield had a habit of sleeping on the top of the front tyre of the family car. On one occasion when AW was backing the car out to take JW and his friends to school Garfield failed to jump off the tyre in time and was run over. Garfield was taken to the local veterinary clinic where he was treated and discharged home the following day. 575 In the plaintiffs' submission, inquiries made of SW's school friends, the children of neighbours and local veterinarians might well have established that far from engaging in sadistic abuse of a family pet, SW's parents had acted responsibly in relation to Garfield. This would have established SW to be more than capable of making up damaging lies about her parents. I accept that to be the case. However, I do not take MOD's failure to interview SW's school friends, the children of neighbours and local veterinarians to see if any recalled the death of her cat to evidence malice. There is no reason to conclude that MOD refrained from making these inquiries out of a concern that to do so would be to expose SW as a liar. 576 There is another aspect in which MOD's conduct with respect to the Garfield allegation is the subject of criticism. MOD took a statement from Douglas Keir on 30 May. In that statement Mr Keir detailed the contents of each of the counselling sessions that he had held with SW. His account of his last session with her, held on 18 April 1994, included the following (at paragraph [117]): "On the 18 April, 1994 I saw SW at the Chatswood office. After initial pleasantries, SW said, 'I spoke to MOD and told him something that I haven't confessed to before. That my mother knew about the incest all along and would in fact direct me to have sex with my father. My mother would threaten to kill my animals if I didn't do what she or my father wanted. She did in fact run over my cat with her car. My mother would threaten me by putting a knife to my dog's throat or threatening to put fish hooks in its food." 577 Not later than 30 May, when the first Keir statement was taken, MOD was on notice that on 18 April SW had given a version of the Garfield story that was inconsistent with the account of the same incident that she had given him the day before. The running over of the cat was a distinct incident in SW's description of a long history of abuse. On one view, it was telling that in the space of twenty-four hours she should give such differing accounts of it. However, in the absence of evidence that MOD endeavoured to conceal the differing accounts, it does not seem to me to point to MOD as being actuated by malice in prosecuting the plaintiffs on the strength of SW's complaint. (ii) Failure to interview the neighbours 578 Next the plaintiffs complain of the failure of the police to carry out inquiries of the neighbours. It was noted that the house to the immediate east of the family home was located not far from the bathroom of the family home. The bathroom was the scene of a number of alleged episodes of abuse. In the event that SW or EW had been assaulted in the bathroom in the way they described, it was submitted that one might reasonably have expected the elderly neighbour, Mrs C, to have heard something of it. The proximity of the two houses to one another was not to my mind such as to make it likely that she would have heard sounds of sexual activity coming from the bathroom or, for that matter, the master bedroom or anywhere else in the family home.

[283]

(vi) The medical examination of SW 588 On 19 August MOD took a statement from Dr Roche, an obstetrician and gynaecologist. Dr Roche had examined SW on 12 March 1993 at a time when she was complaining of painful periods. She had been admitted to Mona Vale District Hospital following this consultation for pre-menstrual dilatation and curette and laparoscopy. She was seen again when she continued to complain of pain in the lower abdomen. Dr Roche reported that he had been of the opinion in May 1993 that SW suffered from vaginismus. This is an involuntary spasm of the vaginal muscles that manifests itself whenever vaginal entry is attempted. Dr Roche noted that vaginismus often has a psychological component and may be related to feelings of guilt, or may present when there is a history of rape or sexual abuse. In retrospect Dr Roche expressed the opinion that it was possible that SW had been the victim of some sexual abuse in the past which had caused the vaginismus. 589 SW was examined by Dr Van Der Griend at the Royal North Shore Hospital on 2 June. The doctor reported that on examination there were no obvious scars and that the external genitalia, peri-anal region, vagina and cervix appeared normal. The fact that MOD was aware of the results of the examination carried out by Dr Van Der Griend, namely, that SW's sexual organs were normal with no obvious scaring, is relied upon as a particular of malice in the case of each of the plaintiffs. No evidence was led to support the inference that the results of the examination were inconsistent with the history that SW gave. Dr Van Der Griend recorded that he had been given a history of chronic assault dating back to the age of five years, including that SW had been assaulted by both her mother and father and a friend of her parents. The last assault was reported as having occurred in late March 1994. Dr Van Der Griend expressed no opinion that the results of the examination were inconsistent with this history. 590 On AW's behalf it was put that the results of the examination conducted by Dr Van Der Griend did not sit well with the opinion in Dr Roche's report concerning vaginismus and the possibility of a history of sexual abuse. 591 The report of Dr Van Der Griend was served, as well as the report of Dr Roche, as part of the police brief of evidence. I do not consider that this latter submission supports a finding of malice. (vii) Failure to interview Michael concerning his knowledge of relevant events

[293]

The listening device 603 Each of the plaintiffs plead as a particular of malice the wrongful causing of a listening device to be placed in the family home for a period of approximately twenty-one days during which time no evidence was obtained to support any of the allegations against them. The listening device was installed pursuant to a warrant granted by a judge of this Court. The application for the issue of the warrant was supported by an affidavit of MOD sworn on 21 June. 604 It was not clear how the plaintiffs relied upon the procuring of the warrant and the installation of the listening device as evidencing malice. The circumstance that this investigative procedure did not yield evidence supportive of the charges that had been preferred against AW and LW would not, of itself, support a conclusion that the police involved in procuring it did not believe in the allegations that had been made by the complainants. If anything, one would think the inference was to the contrary. 605 In opening his clients' case, Mr Campbell said this (at T 92): "It is somewhat unusual of course in a case where the police have laid charges against people which are pending before the court and a police brief has been served for an application for a listening device to be made into someone's home. That is necessarily going to pick up conversations touching upon their defence." 606 The suggestion that the procuring of the listening device warrant in circumstances in which AW and LW were charged with offences was wrongful in that it was calculated to disclose communications that were the subject of legal professional privilege was not further developed. Detective Yeomans was not cross-examined upon such a contention. 607 The affidavit sworn by MOD in support of the issue of the warrant is in evidence. It recited the circumstance that both AW and LW had been charged with offences of aggravated sexual assault upon SW. It disclosed that it was the intention of the police to prefer further charges against each of them at court on 23 June. The purpose of seeking authority to use listening devices was not said to be in order to gain further evidence against AW or LW in respect of the charges that had been brought or were to be brought, but to obtain evidence relating to their suspected activities and the activities of other persons involving the sexual abuse of children. As noted, MOD deposed to having grounds to suspect that AW and LW, and other adult persons of unknown identity, were members of an organised group engaged in paedophile activity. 608 The foundation for any suspicion that MOD held that AW and LW were part of an organised paedophile ring does not seem to me to have been strong. As I have said, it is probable that MOD was influenced by literature supplied to him relating to ritual sexual abuse. However, I see nothing arising from the application for a listening device warrant to suggest that in investigating the complaints made by SW, EW, and the other complainants, MOD was motivated by a purpose other than his belief in the veracity of the allegations that had been made and a suspicion that AW and LW may be part of a larger group of persons engaged in the sexual abuse of children. Conclusion - malice 609 I do not consider that the various matters relied upon by AW and LW as evidencing malice on MOD's part in the conduct of the investigation and in the determination to institute the prosecution of each of them on the charges that were laid at court on 23 June amount to such when viewed individually or in combination. 610 For the reasons that I have given, I am satisfied that MOD acted with malice in instituting the prosecution of LW for the two charges on 19 April. I am not able to identify what ulterior or improper motive MOD may have possessed but it seems to me to be the necessary conclusion given the matters to which I have referred at paragraph [270] above. I do not consider that because MOD acted with malice in charging LW with the two offences on 19 April I should infer that he was actuated by malice with respect to the institution of the further charges that were preferred on 23 June arising out of the complaints contained in the statements made by SW, EW and JW. 611 I have concluded that MOD lacked a degree of objectivity in the conduct of the W investigation. He appears to have accepted the accounts offered by SW and EW notwithstanding features of them that were improbable and to have concluded that AW and LW were likely to be members of a paedophile ring. However, I do not find that MOD's motive in instituting the prosecution of charges against AW and LW on 23 June on the strength of the unsupported and in some instances implausible allegations made by their children (and in the case of AW, by SS and KS) was the product of any motive other than a desire to see them brought to justice.

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616 EW told her uncle and aunt about JS' visit to the school. 617 It would seem that after SW made her allegations the W and S families were divided: some of JS' children were supportive of LW and AW, whereas her son, PS, and his wife YS, were supportive of SW and EW. PS telephoned MOD and told him of the school visit. 618 MOD and Detective Yeomans travelled to the Central Coast on the evening of 18 August and spoke with PS, YS, EW, LN and other members of the extended family. MOD contacted Detective Hill and arranged for her to take a statement from LN about the incident. 619 LN said that JS had questioned EW about where she and her siblings were living. She said that JS asked EW, "Who's forcing you to say all these things?" and said, "You know that you Mum and Dad have never done those awful things to you". LN also said that JS had inquired whether various of EW's relatives, including PS and YS, were planning to visit the school that day. EW said that they were not and JS was reported to have responded, "Good, because if they were, I'd kill them. I'd get my knife out of my bag and kill them". LN could not remember whether JS referred to her knife or pocket-knife (LN statement, 19 August, paragraph [12]). 620 EW did not want to talk to the police about the matter that night. She said that she was frightened. Detective Yeomans took EW to be conveying that she was frightened of JS. She did not say so in terms but it was open to him to draw that inference in the circumstances. 621 EW made a statement about this incident on 22 August. She did not say that her grandmother had mentioned the allegations that she, EW, had made, nor did she give an account of JS making any threat to her or to members of her family. She did say that she was really scared and shaky (EW statement 22 August, paragraph [7]). 622 JS said that she said to EW, "You were a naughty girl to say those things about your Mum and Dad"(T 130). She denied making any threat to hurt any person with the very small penknife that she kept in her purse, for the purpose of cutting the tags off clothes purchased for the children. Whether JS made a threat or any remark about a knife is not to the point. The evidence is that on the evening of 18 August MOD was told that such a threat had been made. There is a record in his duty book of receiving a phone call from PS at 6:45pm in which PS said, "JS has been to the school and spoken to EW, there was something said about a knife". Subsequently, as noted, LN gave an account of such a threat. 623 Detective Yeomans was cross-examined about what if any fears had been expressed by the children for whose protection the interim order was obtained. His duty book records that he had attended to "PVO" (a reference to a personal violence order) with MOD "re fear expressed by SW, EW together with SS and KS on 18/8/94". He was unable to recall what fears had been expressed by the children prior to the application for the interim order being made. There had been no discussion between MOD or Detective Yeomans with the children of the S family on the night of 18 August. Detective Yeomans was not able to say what information he had placed before the magistrate in order to secure the interim apprehended personal violence order. He could not recall whether he had seen LN's statement at the time he applied for the interim order. The likelihood is that he had been informed of the contents of LN's statement by Detective Hill. Both of their duty books record that they liaised in the early hours of 19 August about the statement taken by Detective Hill from LN. 624 Detective Hill recalled that after taking the statement from LN she had spoken with PS, YS, SW, and two other relatives, AH and DH. She recorded in her duty book, "All very concerned about JS approaching EW". Detective Hill also said that SW had expressed fears for her safety arising out of JS' visit to EW. Detective Hill spoke with EW for an extended period that night. She could not recall the conversation in detail. She remembered that EW had been concerned that JS could turn up at her school and that she was frightened that this had happened (T 1454).

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639 In Frost v State of NSW [2002] NSWCA 226 Foster AJA doubted that the tort of wrongful arrest might be committed in circumstances in which the determination to proceed by way of arrest was inappropriate: [28] - [31]. 640 The question has received more recent consideration in the Court of Appeal: Zaravinos v NSW [2004] NSWCA 320 Bryson JA (in a judgment with which Santow JA and Adams J concurred) observed at [37]: "Even if the circumstances mentioned in s 352(2)(a) exist, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question." 641 The offences described by SW and EW were of a most serious character. Minds might differ about the appropriateness of determining to proceed by way of arrest in the case of an elderly woman in poor health with such strong community ties. However, had Detective Holloway's decision to proceed by way of arrest been based on a reasonable suspicion arrived at after consideration of the material assembled in the course of the police investigation, I am not persuaded that it would have been such an unreasonable exercise of discretion as to have been unlawful. 642 In 1994 Detective Holloway was a Detective Sergeant of Police attached to the CMU at Chatswood. He had no involvement with Task Force Maitland prior to 15 September. On that morning he went to the Task Force Office with Constable Thompson, a trainee police officer. He spoke with MOD and Detective Yeomans. MOD showed him some statements made by EW and SW and he read them. They contained allegations of sexual assaults committed against each girl by JS over a period of time. 643 MOD told Detective Holloway that a number of statements had been taken from the girls and that their accounts were reasonably consistent.

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648 The first charge preferred against JS was OLC No. 5508/1. This alleged an offence of carnal knowledge of SW, a girl under the age of ten years (six to seven years), contrary to s 67 of the Crimes Act. The offence was particularised as having occurred between 5 February 1982 and 4 February 1984 at Beacon Hill. This charge was withdrawn in March 1996 and OLC 5508/9 was substituted for it. This latter charge was listed for hearing before the Downing Centre Local Court on 18 March 1996. The informant was nominated as MOD. This charge alleged that JS between 5 February 1982 and 4 February 1983 at Beacon Hill had sexual intercourse with SW without the consent of SW, she being under the age of sixteen years. 649 Significant to a consideration of who made the decision to charge JS with OLC No. 5508/1, and who framed the charge, is the coincidence that this charge contained the same two errors as OLC 5159/3, which was preferred at court against LW on 23 June 1994: it was an allegation of carnal knowledge and it particularised the wrong dates for the period during which it was said the offence occurred. 650 The source of the allegation for this first charge is paragraphs [7] - [9] of the third statement. SW there referred to paragraph [20] of her second statement, in which she had given an account of her mother digitally penetrating her from when she was aged six or seven years. In the third statement she claimed that at about the same time JS started to assault her in the same way. SW went on to refer to her assertion in the second statement that her mother used to wash her and put her to bed. She now claimed that she used to bathe with her grandmother and she described incidents of digital penetration while in the bath with JS. She also claimed that JS had made her play with JS' breasts and penetrate her vagina. 651 In the third statement SW referred to her earlier account in paragraph [23] of the second statement of being made to watch her parents having sexual intercourse. She now asserted that the first time this had occurred was when she was nearly seven years old, and that her grandmother had been present holding onto her while she watched. No charge was preferred arising out of this allegation. It is relied upon by the plaintiffs as a further bizarre development in SW's account of home life. JS - sexual intercourse with SW between 27 January and 31 July 1993 at Mona Vale (OLC 5508/2)

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652 The second charge preferred against JS alleged an offence of sexual intercourse with SW without the consent of SW in circumstances of aggravation (OLC 5508/2). It was particularised as occurring between 27 January and 31 July 1993 at Mona Vale. This charge is linked to OLC 5159/8 brought against LW. I have already dealt with the evolution of SW's allegations concerning the sexual assault at Mona Vale. 653 In her second statement SW gave an account that she had been taken into the bedroom of the Mona Vale premises by her mother with her younger brother JW. Her grandmother and younger sisters had remained in the lounge room watching television. The sexual molestation had been brought to an end by JS knocking on the door and calling out that it was time to go. 654 SW now claimed that only her younger sisters remained in the lounge room that day: JS was in the bedroom lying on the bed with LW. Both digitally assaulted her. At one point while LW was licking SW's vagina, JS was playing with JW's penis. JS had also licked SW's vagina and inserted something into it that was bigger than a finger. SW said that her earlier statement in which she had described JS knocking on the door was not true. The incident came to an end in this way: her brother got on the bed and had sex with her. While this was taking place JS was touching her and sucking her breasts. After JW completed the act of intercourse everyone left the house. 655 It is to be noted that SW was aged eighteen when she made the third statement implicating her grandmother in this somewhat extraordinary sexual abuse of her. The explanation that she offered for not having disclosed the grandmother's involvement at an earlier time is that "I was having a lot of trouble at the time trying to cope with talking about what AW and LW had done, and which also involved my brother and sisters" (third statement at [5]). 656 In counsel's submission, given that SW was not purporting to describe events in the remote past, but an incident that had occurred within the last twelve months, the explanation for the inability to truthfully describe it on the first occasion is so inadequate as to have put any investigator of ordinary prudence and judgment on notice that her evidence was not to be relied upon as the basis for criminal proceedings without independent support. When one looks to the florid claims of abuse SW had made prior to 13 September it was submitted to be difficult to credit that she may have felt constrained not to reveal sexual misconduct by JS. JS - (later substituted with 5508/11) sexual intercourse with SW between 26 July and 4 September 1993 (OLC 5508/3)

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657 The third charge preferred against JS was laid under s 61J(1) and alleged that between 26 July and 4 September 1993 at Beacon Hill, JS had sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5508/3). This charge was withdrawn on 28 March 1996 and replaced by OLC 5508/11. The latter charged JS with the unaggravated form of the offence committed between the same dates and at the same place. 658 The allegation relied upon to support this charge is found in paragraphs [15] and [16] of the third statement. SW asserted that during the month when she returned to live in the family home, her grandmother would often have sex with her. This occurred during the day when her parents were at work and her younger siblings were at school. She recalled that one Tuesday during this period JS instructed her to accompany her to her parents' bedroom. JS undressed (leaving a singlet on) and directed SW (who was naked) to lie on the bed with her. JS then sexually assaulted her putting her tongue in and around her vagina and digitally penetrating her. JS then inserted a vibrating dildo into SW's vagina. After this JS took a bath. SW washed her and was made to play with JS' nipples and to digitally penetrate JS' vagina. 659 In the third statement SW claimed that in the month when she had returned to live at the family home, LW and JS had sexually assaulted her once or twice a week by digitally penetrating and licking her vagina. Sometimes they both penetrated her at the same time and on other occasions they took it in turns. These allegations represented a considerable shift from those made in the second statement (at paragraph [93]). It will be recalled that in the Cruickshank statement SW gave an account of one frank episode of sexual assault during the month that she was living back at home. This was the assault in the garage on the night she moved home. In the Cruickshank statement it was SW's account that at the time of the assault her mother was asleep in the lounge room and her grandmother was in her caravan. JS - sexual intercourse with SW on 28 December 1993 (OLC 5508/4)

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660 The fourth charge preferred against JS alleged an offence under s 61J(1), of sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5508/4). This was particularised as having occurred on 28 December 1993 at Beacon Hill. This is an offence that is said to have taken place on JLW's eleventh birthday. 661 AW and JS were also charged with the commission of offences under s 61J(1) arising out of the same incident. The charge against AW arising out of this incident was preferred at court on 23 June. The parties were agreed that the charge against LW relating to this incident was laid at court on or before 30 January 1995 (T 2670.45-52 and see committal transcript of 18 March 1996, 11). 662 Before moving to SW's allegations concerning these events, it is relevant to note that as at December 1993 SW was seeing Douglas Keir for counselling. At the time the charges were preferred with respect to this incident MOD had available to him the first statement made by Mr Keir setting out the particulars of his contact with SW. Mr Keir had seen SW on 20 December 1993 and on 10 January 1994. Notable is the circumstance that no complaint was made with respect to the incidents said to have occurred on the night of JLW's eleventh birthday. 663 In her third statement SW referred to paragraphs [104] and [105] of the second statement dealing with her account of JLW's eleventh birthday. She now gave a new version. She said that Michael had actually left the house after dinner to go to a friend's place. She went on: "[19] JS, EW and I had to watch while AW put his penis inside JLW's vagina and LW put the penis shaped dildo thing, not the vibrating one, into JLW's anus. While LW was doing that, JW had to put his fingers into LW's vagina. When AW and LW finished with JLW, JW got on the bed and put his penis into JLW's vagina. [20] I had been made to sit with EW on the desk watching. LW and JS made me lie on my side on the desk and I had to take my jeans and underpants off. JS started putting the dildo thing into my anus and LW got the vibrating dildo and she put it into my vagina at the same time. While this was happening to me, and JW was on the bed with JLW, I'm not sure but from what I can remember, AW took EW out of the room to another part of the house. [21] After LW and JS had finished using the dildo things on me, I was allowed to go back into the lounge room and wait until Michael came back to take me home. LW and JS didn't come out of the bedroom until Michael got back. I didn't see where AW and EW were, but they must have been in EW's bedroom. When Michael got back, we went straight home. I was upset but I didn't say anything to Michael."

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678 Detective Yeomans was asked whether he had any involvement in the preparation of the charges that were laid against JS. He said he did not think so, but he was not sure (T 1295.39). 679 Detective Yeomans recorded in his duty book that he returned to the police station at 7:00 pm on 14 September and liaised with MOD re Task Force Maitland. He recorded that among his duties that night he attended to statements and to formulating the charges against JS. I think the probability is that Detective Yeomans was involved in assisting MOD with the formulation of the charges that were preferred against JS the following day. His role was a subsidiary one. 680 MOD and Detective Yeomans' duty book entries suggest that they formulated the charges on the evening of 14 September. A further pointer to the charges bearing the hand of MOD, and not Detective Holloway, is the circumstance that OLC 5508/1 contained the same error with respect to the nature of the charge and the dates particularised as the charge preferred by MOD against LW arising out of the same incident. 681 Detective Holloway's attention was directed to the statement of facts signed by him at the time JS was charged. His recollection was that the offence of carnal knowledge required proof of penile penetration. He was unable to explain how a grandmother had been charged with carnal knowledge of her granddaughter. When the particulars of charge case 5508/1 were drawn to his attention he said that it was possible that digital penetration satisfied the definition of carnal knowledge. I took Detective Holloway's first response, namely, his belief that carnal knowledge required proof of penile penetration, to suggest that he would not have preferred a charge of carnal knowledge against JS had he turned his mind to drafting a charge based upon paragraph [7] of SW's third statement (that JS had digitally penetrated her vagina). 682 In cross-examination Detective Holloway accepted that he may have received some assistance from MOD in drafting the charges. SW's third statement did not assist him to particularise the date of the charge relating to JLW's eleventh birthday; this was information that was likely to have come from MOD. 683 JS was charged at 11:08 am on the morning of 15 September. The evidence suggests that Detective Holloway returned with JS to the police station around 10:45am. Detective Holloway had no recall of being given a draft of the charges by MOD or Detective Yeomans. The likelihood is that he was. He had not more than two hours to read the statements of the two complainants. There was little more than twenty minutes between returning to the police station with JS and the commencement of the charging process. It is unlikely that in this space of time Detective Holloway was able to select from the statements the allegations that were to form the basis of the charges. 684 Paragraph [7] of SW's third statement refers to paragraph [20] of her second statement. Detective Holloway agreed that he had not had access to the second statement. He said, "As I understood it, there was no information relevant to JS contained in those statements" (T 2198.43-44). He had not considered it necessary to go back and check earlier statements made by SW because MOD had told him the representations made by her in her third statement were consistent with her earlier representations.

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685 Detective Holloway was taken to OLC 5508/4, the allegation that JS had sexual intercourse with SW on 28 December 1993. This was the date of JLW's eleventh birthday. The facts sheet signed by Detective Holloway particularised the offence charged as one involving anal penetration of SW with the manipulation of an object. The allegations that SW made concerning this incident were that at the time she was assaulted in that fashion by JS each of her younger siblings were present in the same room and were themselves being sexually interfered with. Detective Holloway agreed that in the normal course he would have looked to see whether SW's allegations received confirmation in the accounts given by the other siblings. The fact is that SW's allegations concerning this incident receive no support from the accounts of her siblings, whom she claimed were present. 686 Detective Holloway's attention was directed to the account SW offered in the second statement of the assaults that had taken place in the family home on the night of JLW's eleventh birthday, and to SW's claim that JS had been in the lounge room with SW's boyfriend, Michael, at the time that her parents assaulted JLW in the master bedroom. It was only in the third statement that SW came to place JS in the master bedroom as a participant in the sexual misconduct. Detective Holloway was asked (at T 2203.25-29): "Q. If you had been given the first account as well as the second account without further investigation you would not have contemplated laying any charges, would you? A. I would have been looking for a substantial explanation." 687 After Detective Holloway's attention was drawn to the fact that SW had made no allegation of sexual impropriety relating to JLW's eleventh birthday in the Cruickshank statement, he agreed that he would have looked for substantiation of her allegations had he been aware of the earlier versions that she had given. He was asked (at 2204.54- T 2205.24): "Q. And having been put in possession of the additional information I now have put before you, you would agree that you would not have been in a position as at 15 September 1994 to have formed a belief that JS was probably guilty of the offence nominated in the charge at tender bundle 61? (A reference to OLC NO. 5508/4 - the charge relating to 28 December 1993). A. Maybe not to that level. Whether or not that would have taken away from suspicion that she had in fact committed the offence. Q. Let's just come back to my question. You would not have been in a position to have been of the belief that she was probably guilty of the offence disclosed at tender bundle 61 on the information available, had it all been given to you? A. It would depend on what other explanations were proffered as well. Q. Well you had no other information pointing to such guilt, did you? A. No, but I wasn't aware of this either. Q. Okay. I'm not being critical of you in the sense that you were not told any of those things, were you? A. No. Q. They were concealed from you, weren't they. A. Well, I wasn't told about them." 688 Detective Holloway's attention was next directed to OLC 5508/6, which charged the offence of sexual intercourse with SW on 18 March 1994. He was taken through the earlier inconsistent versions SW had given of this event to MOD and to Sergeant Cruickshank. His attention was drawn to the circumstance that three days after the event SW gave an account to her psychologist in a counselling session in which she made no reference to the presence of either her mother or grandmother on the occasion of the assault upon her. He was asked (at T 2209.38 - 54): "Those shifts again would have been matters of great concern to you, wouldn't they, had you known of them back in September of 1994? A. Yes, they would have been of some concern. Q. And they would have taken singly and, could I suggest, taking the ones I have pointed out to you, in combination, have produced in your mind a sense of disquiet about the reliability of the complainant. A. Well, to the point of where I would have been looking for explanations as to why. Q. And would have at the very least deferred the question of whether charges, and if so what charges, ought be laid against JS? A. Depending on the explanations that I was given I perhaps may have, yes." 689 Detective Holloway's attention was directed to the charge that JS had sexual intercourse with SW without her consent at Manly Vale between 4 September 1993 and 6 April 1994. He agreed that the material relied upon by him in preferring this charge was that set out in paragraph [22] of SW's third statement. That paragraph in turn referred to paragraph [114] of the second statement. As noted, he did not have access to that statement. The statement of 13 September made no reference to the dates during which SW had lived at the Manly Vale premises. Detective Holloway agreed that he must have had assistance from MOD in formulating the particulars of this charge. After having his attention directed to SW's earlier and inconsistent accounts relating to events at Manly Vale, Detective Holloway agreed that the matter called for explanation. He was asked (at T 2213.8-34): "Q. And you wouldn't have preferred charges without having got explanations of a satisfactory character, would you? A. As I say, it depends on what the explanations were, and how quickly they were proffered. Q. But without one … A. No. Q. … you would not have formed the belief that you regarded as necessary for the laying of charges, would you? A. Sorry, you are saying, having been aware of these previous two statements … Q. Yes. A. The fact that the matters were still disclosed in the statement that related to her would have given rise to suspicion, but perhaps prudence might have dictated a delay. Q. If I could put it to you in the form I put it to you earlier, you would not have formed the belief that JS was probably guilty of the offence without having first got a satisfactory explanation for the shift, would you? A. I think it would be fair to say that. No, it is fairly extreme, being guilty of the offence." 690 Detective Holloway went on to say (at T 2214.26 - 32): "No. I would say that my terminology would be 'reasonable cause to believe that they had committed an offence', not that they were guilty of it. That's a matter for a court; quite simply, to put the matter before a magistrate or other jurisdiction to have that determination made. There was sufficient evidence to do that." 691 Detective Holloway's attention was directed to OLC 5508/2, the charge that alleged that JS had sexual intercourse with SW at Mona Vale in the period between 27 January and 31 July 1993. This material is set out in paragraphs [11] - [14] of the third statement. Again, in that statement SW refers to allegations made in her second statement. Relevantly, at paragraph [12] of the later statement she said, referring to the second statement, "I said that LW took me into the bedroom with JW, while JS, EW and JLW stayed in the lounge room. JS didn't really stay in the lounge room, only EW and JLW did." It was suggested to Detective Holloway that had he been in truth exercising independent judgment concerning whether or not to prefer a charge against JS arising out of this allegation, he would have wished to see the earlier statement that she corrected in this respect. He did not recall noticing this matter before. He had not sought to obtain confirmation from SW's siblings who were said to be present on the occasion. Detective Holloway said he was under the impression that JW had been charged with offences and, as I understood it, that in light of that circumstance he would not expect to look for corroborative material from that source. After having his attention directed to the earlier and inconsistent version relating to events at Mona Vale, on the occasion when SW claimed she had been sexually interfered with in the bedroom, Detective Holloway agreed that had he access to that information, it would have caused the need for clarification. It was put to him (at T 2220.24-28): "Q. Indeed, on the material, if you had both of those versions, you could not have laid charges without further investigation on 15 September 1994? A. It may have been prudent to seek advice or postpone it, yes." 692 With respect to the charge preferred against JS relating to events at Beacon Hill between 26 July 1993 and 4 September 1993, Detective Holloway agreed, after being shown SW's earlier statements, that the variation in her account was such as to require explanation (T 2221.40). 693 Advice had been given to MOD by a solicitor employed in the ODDP that the allegations contained in EW's interviews of 8 and 10 June relating to JS were an insufficient basis on which to charge her. Detective Holloway was not informed of this advice. Had he been aware that such an opinion had been offered, and had he been made aware of the inconsistent versions that had been given by EW, he said that it was probable that he would have approached the ODPP for advice concerning the matter before proceeding to arrest and charge JS.

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697 JS pleaded causes of action in malicious prosecution and, in the alternative, in abuse of process. Reasonable and probable cause 698 I turn to JS' claim of malicious prosecution. The first question is whether JS has established the absence of reasonable and probable cause with respect to the institution of proceedings against her on 15 September for the eight offences. The only evidence available to support each of the charges was the unsupported account of SW and EW respectively. Both had given inconsistent accounts on earlier occasions when under an obligation to tell the truth. EW had admitted to fabricating serious allegations against both her parents. 699 Detective Holloway was not challenged as to his belief at the time he charged JS that the probability of her guilt was such that on general grounds of justice the charges against her were warranted. As noted, his belief was based upon an incomplete knowledge of the investigation. I am satisfied that MOD made the decision that JS would be charged with the eight offences. He was the person responsible for the institution of the prosecution of JS in respect of each of these offences. 700 It is necessary to bear in mind the nature of the allegations. Sexual offences are frequently committed in circumstances in which there will be no witnesses available to corroborate the complainant's account. The circumstance that a complainant comes forward with a complaint months or years after the incident not having made any complaint at the time does not necessarily bear on the credibility of the account. It is recognised that there may be good reasons why the victims of sexual offences do not complain. 701 MOD was not prepared to charge JS with criminal offences based on the allegations made by EW. He said that he would not take action against JS without some information tending to provide support for EW's allegations. Although the account given by SW in her third statement was not likely to be admissible in support of a prosecution based on EW's allegations, nonetheless I accept that the fact that she, too, alleged that her grandmother was involved in acts of sexual abuse was a matter that was open to a prudent investigator to take into account in deciding whether to prosecute JS on the allegations made by EW or SW. However, SW's account in the third statement seems to me to have been so unsatisfactory in light of the matters to which I have already referred that objectively a person of ordinary prudence and judgment would not have concluded that a prosecution of JS upon her allegations was warranted. I am of the same opinion with respect to a prosecution upon the allegations made by EW. 702 I am not persuaded that MOD believed that upon general grounds of justice that the prosecution of JS on these eight charges was warranted. There was absent reasonable and probable cause for the prosecution of JS on the charges preferred against her on 15 September.

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Malice 703 It remains to consider whether MOD has been shown to have been actuated by some collateral or improper purpose such that his decision to institute the prosecution of her on these charges can be characterised as malicious. One motive advanced by the plaintiffs as MOD's reason for instituting the prosecution against JS was his desire to avoid the complainants being cross-examined in the apprehended personal violence order proceedings. It is clear that MOD discussed this issue with John Boyd and Jill Cash of the ODPP. However, it seems to me to be a speculative leap to move from this to a conclusion that he was motivated to charge JS with these offences in order to avoid that result. 704 MOD's conduct in arranging for Detective Holloway to arrest JS and to be named as the informant in respect of the charges that he, MOD, had drafted, has not been satisfactorily explained. MOD gave evidence that he had involved Detective Holloway in the arrest of JS because the investigation had grown into a very large one and he was not able to undertake this task himself. I do not accept that account. As I have noted, Detective Holloway had no role other than as the token informant. 705 I am unable to say what MOD's motive was in procuring the charging of JS with the eight offences on 15 September. I am persuaded that it was a motive other than one borne of MOD's belief in the probability of her guilt such that he considered upon general grounds of justice that the prosecution was justified. Had he been of that view he would not have engaged in the artifice of bringing Detective Holloway into the investigation and misleading him as to the strength of the evidence against JS. The selective briefing afforded to Detective Holloway seems to me of itself to evidence malice in the sense that MOD had some improper or collateral purpose for instituting the prosecution. I am satisfied that JS has made good her cause of action for malicious prosecution in relation to the prosecution of each of the eight offences with which she was charged on 15 September. 706 The charges against JS were returnable before the Manly Local Court on 5 October 1994. No evidence was led concerning the conduct of the proceedings on that day. The appearance recorded on behalf of the informant on the charge sheet was not the subject of evidence. On 26 October 1994 the charges were again before the Local Court. On that occasion the charge sheets record that "Cash" appeared. In light of the evidence concerning Ms Cash and the acknowledgment that she was at the time in the employ of the ODPP, I infer that not later than 26 October 1994 the Director had taken over the prosecution of the charges against JS. For the reasons earlier given, I do not find that MOD was responsible for the maintenance of the prosecution after that date.

[325]

The further charge preferred against LW - the assault on the night of JLW's eleventh birthday 707 In her third statement SW gave an expanded account of events in the family home on the night of JLW's eleventh birthday. I have referred to these in paragraph [663] above. Either on or before 30 January 1995 a charge was preferred against LW arising out of these allegations. It was a charge under s 61J(1) of having sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5159/20). This charge was returnable before the St James Local Court on 30 January 1995. It will be recalled that Michael was present at the family home on this occasion for at least some of the celebrations associated with JLW's birthday. His attention was not directed to the matter in the interviews conducted with him by Detective Yeomans and MOD. There was nothing to support SW's extraordinary and inconsistent account. For the reasons that I have earlier given I consider that there was absent reasonable and probable cause for instituting the prosecution of LW in respect of this charge. 708 MOD was named on the charge sheet as the informant in respect of this charge. He was named as the informant in respect of all the charges preferred against LW. This is so in the case of charges that were laid in court during the currency of the committal proceedings. The transcript of the committal proceedings on 18 March 1996 records that the Crown Prosecutor foreshadowed that some additional charges would be laid and that some charges would be withdrawn and other charges substituted for them. She noted that there had been a number of amendments to the Crimes Act relating to sexual offences and that it had become clear that some charges had been preferred under the incorrect provision (transcript of the committal hearing 18 March 1996, 9 -10). 709 The defendant submitted that I would be satisfied that as at 30 January 1995 the Director had taken over the prosecution of all charges against the plaintiffs and that the inference to be drawn was that MOD did not exercise an independent discretion in preferring this further charge against LW. The charge married up with the one preferred against JS relating to the same incident. The only reasonable inference was that those responsible for the conduct of the prosecution of all charges were responsible for the decision to prefer this charge. In support of this counsel drew attention to MOD's duty book entry for 30 January 1995. This would suggest that MOD was on rest days on that day and the preceding two days. This does not mean that he could not have been the moving force behind the institution of LW's prosecution on this charge. However, I note that the entries in his duty book in the days leading up to 30 January tend to support the inference for which the defendant contends, in that it appears MOD's duties were no longer focussed on inquiries associated with Task Force Maitland. 710 I have concluded that it is probable that the decision to prefer the charge against LW on or before 30 January 1995 arising out of the allegations made by SW in her third statement was made by a person having responsibility for the overall prosecution of the charges against the three plaintiffs. Conclusion - further charges and abuse of process

[332]

Damages - LW 720 I have concluded that LW has succeeded on her claim for false imprisonment arising out of her unlawful detention on 19 April and for malicious prosecution with respect to the two charges preferred against her on that day. LW's unlawful detention commenced around 4:05 pm. She was charged with both offences at 9:19 pm. She was released on bail around 11:00 pm. After the conclusion of the ERISP LW was taken to the charge room of the police station. She was fingerprinted and her photograph was taken. She was placed in the dock. LW had not previously been in a police station. She hated the experience. 721 On her return to the family home she found that her children had been taken into care by DOCS. When asked how she felt about this she said that it was hard to describe. It was clear that LW's distress at that time, and in the months that followed, was in part as the result of actions taken by DOCS rather than by the police. Nonetheless, the experience of being arrested, fingerprinted, photographed and charged with having sexual intercourse with her daughter was plainly of itself a source of considerable distress to LW. 722 LW gave some evidence that ultimately she lost her employment at the school canteen as a consequence of the prosecution of the charges. This occurred nearly a year after her arrest. It followed the appointment of a new principal to the school, who told her that she would have to leave because she was viewed as being a danger to children. This had made her feel awful. Since that time LW had done some ironing work at home for a while and had obtained part-time work in the canteen at a retirement village. 723 Her loss of employment and the impairment in her earning capacity did not arise from the prosecution of her on the two charges preferred against her on 19 April or the maintenance of the prosecution between that date and 23 June. 724 In the period following her arrest LW did not have contact with her children. This was a source of distress to her. Her bail conditions included a restriction on contact with the children. She was only able to regain contact with the children as the result of a bail application in this Court. Following this she was able to see the three children in a room at the Manly DOCS office in the presence of a DOCS officer and two lawyers. Her mother and AW were also present. This contact visit lasted for about two hours. LW said that she had missed the children and felt awful as the result of the enforced separation. 725 Following LW's arrest and the removal of the children she suffered from depression. Dr Blom, her general practitioner, described her as "chronically depressed and in a constant state of grieving over her loss" (report dated 1 May 2000). 726 LW was assessed by Dr Roberts, a psychiatrist. He described her as presenting as a distressed, depressed person. He considered that she had suffered a significant degree of depression and anxiety arising out of what he described as "her involvement in this matter". Dr Roberts was of the opinion that LW had, as the result of these events, become a profoundly impaired person within the criteria for that condition specified in the American Medical Association's Guides to the Evaluation of Permanent Impairment (3rd ed). Dr Roberts considers that LW suffers significant impairment in daily living, social functioning, concentration and adaptation. Her capacity to enjoy, to function and to obtain satisfaction from her children (and potentially grandchildren) in Dr Roberts' opinion has been ruined. 727 The medical evidence addressed LW's condition in the context of events that include the sudden removal of her children from her care, the circumstance that each child was for a time to make allegations of sexual impropriety against her and her husband and the institution and maintenance of the charges preferred against LW on 23 June. 728 As I have observed, I am concerned with the award of damages to compensate LW for her false imprisonment and the malicious prosecution of charges 5159/1 and 5159/2 for the period 19 April until 23 June 1994. 729 By her third further amended statement of claim LW claims damages for "nervous shock, loss of humour, energy and enthusiasm, anxiety, stress and sequelae, personality changes" together with medical costs, both past and future, general damages and damages to her reputation, together with special damages relating to legal expenses, telephone calls and travelling expenses and both aggravated compensatory damages and exemplary damages. 730 No evidence was led with respect to the particulars of special damage. In light of my finding that LW has failed with respect to so much of her claim as relates to the institution and maintenance of the prosecution of the charges on 23 June and the later charges preferred at court in January 1995 and March 1996, the claim for legal expenses and the other particulars of special damage would, in any event, have largely failed. 731 There was no evidence with respect to LW's past medical costs, nor is there any basis identified in the evidence in light of my findings for an award for future medical expenses.

[336]

737 JS said that she had been placed in a room at the Dee Why Police Station in which there were little bars in front of her. The door had not been closed and there had been other persons present in the room. She described a counter and persons standing at it. I understood JS to be describing a period during which she was seated in the dock in the charge room of the police station. Her fingerprints were taken and her shoes were removed. 738 When asked how long she had been detained at the police station, JS said that it had seemed to be all day, but that it may have been about an hour or so. Her son had come and collected her from the police station. While she was at the police station a police officer inspected the contents of her handbag. From the time she was informed of her arrest to the time her son collected her from the police station she said that she had felt "awful, terrible" (T 136.1). 739 JS also felt terrible when she attended Manly Court and was charged in court with the various offences. 740 JS suffered asthma and panic attacks in association with her arrest and charging. She was prescribed sleeping tablets. Prior to her arrest she had not taken sleeping tablets. 741 Dr Roberts, psychiatrist, conducted a medico-legal examination of JS on 13 February 2003. In his report he detailed her history, including that she had been diagnosed with bronchiectasis in 1988-1989 and that she suffered from emphysema and asthma. She had a number of additional physical complaints, including osteoporosis, arthritis and a goitre which she described as obstructing her respiration, but which she was not in a sufficiently fit state to undergo surgery to relieve. At the time of Dr Roberts' examination JS was receiving oxygen supplementation on a fulltime basis. She gave an account of sleep disturbance, breathing difficulties and sensations of panic. She described a distressing incident that she said had happened when she was at court, when she had been compared to Fred West, a man who had killed a number of people in the United Kingdom. Dr Roberts noted that JS had not undergone specialist psychiatric treatment, but that her family doctor had prescribed sleeping pills for her. 742 Dr Roberts went on to express the opinion that: "She is clearly distressed on considering these matters - it is difficult to separate certain physiological concomitants that would be found in a reactive state from her other physical conditions. It is my opinion that JS as a result of the matters under consideration has developed an adjustment disorder with anxiety and depressive mood , that such a reactive state is primarily the result of the case being the subject of this matter, although her general health must impinge upon her general perception of wellbeing." 743 Dr Roberts considered JS' adjustment disorder to be chronic because the effect of the prosecution upon JS and the family remained unaltered. In this respect he referred to the permanent alteration that had been worked between JS and her grandchildren and the disruption associated with one of her sons and his family. I understood the latter reference to be to PS and YS. 744 To the extent that Dr Roberts considered JS to have developed an adjustment disorder with anxiety and depressive mood arising out of the "matters under consideration", it is apparent that he was expressing an opinion taking into account the break-up of the family following the DOCS decision to take the children into care and the course of the prosecution against her. 745 I am concerned to award damages to the estate of JS in respect of her causes of action for false imprisonment on 15 September, being an occasion on which she was detained for something of the order of one and a half hours, and the institution of the prosecution against her for offences of a sexual nature involving her granddaughters, SW and EW. This does not involve compensation for the maintenance of the prosecution between 26 October and the termination of the proceedings in her favour on 21 June 1996.

AW & Ors v State of New South Wales

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