The Defendant's Case
42Sergeant Barakat was the first witness called in the defendant's case. Sergeant Barakat was on 6 May 2010 performing duties of the mobile supervisor at Bankstown Police station. He was at the Police station doing quality review work of tasking sheets in his duties as a supervisor when he heard a transmission on Police radio VKG from a Police officer designated as the domestic violence officer in relation to a domestic assault at Powell Street Yagoona. He decided to respond to that radio broadcast. His reason was as follows:
"A: The information that was broadcast from Bankstown 300 in relation to a female who was heavily pregnant who had been assaulted and was on the way to Bankstown Hospital and the fact that there was a two year old child still with the accused person. That raised fears that - I had fears for that child's safety."
43When asked why he had fears for the child's safety, he gave the following reasons:
"A: Again, the information received, the fact that his female who I knew to be 38 weeks pregnant was being conveyed as a result of an alleged assault against her. Further to that, Bankstown 300 I do recall the information that he broadcast was the fact that there was an AVO in place and the two year old child was with the accused. Bankstown 300 also broadcast the fact that there was (sic) warnings of aggression towards Police."
44Sergeant Barakat had proceeded code red (meaning with lights and sirens) to an address at Powell Street Yagoona. He did so because he was aware that the accused needed to be arrested for the offence of assault and breach of AVO. His call sign was Bankstown 14.
45When he arrived at the address he was informed by other Police present that the accused was not there, but was at another address being 39 Larien Crescent, Birrong. He and other Police officers proceeded to that address code blue (without lights and sirens). They did so because he did not want to alert the accused that vehicles were on the way.
46When he arrived at Larien Crescent, Sergeant Barakat walked up to the front door of the premises. He noticed the front door was open and knocked on the door and yelled out "Police, is anyone here?" There was no response and Sergeant Barakat gave evidence that he believed the accused was hiding inside because the house was "just wide open and left like that". He gave the following evidence:
"Q: What made you believe that he was hiding inside?
A: There were several things that sort of led me to believe, first of all, the fact that Bankstown 300 had asked us to respond urgently which sort of implied that the offences of the assault and breach of AVO had just occurred, then upon our arrival we see the house wide open, like this was - it was uncommon, we worked in the Bankstown local area command which is one of the probably more violent, more undesirable locations within Sydney when it comes to theft and break and enter and things like that. It was just an uncommon practice for people to leave their house wide open like that.
Q: Alright, and what happened then?
A: Once there was no response, again we announced our office. I went into the residence to search for the accused person and to try and find this two year old child who I believed could have been at risk of physical harm.
Q: Why did you believe that?
A: Again there were several factors that led me to believe that in the sense that the information received that a heavily pregnant 38 week mother of the child was in hospital. There was an AVO already in existence for her protection. The warnings' given in relation to aggressive towards Police, to me it just showed a propensity of violence and the fact that Bankstown 300 what I didn't - it's come to me now I remember was there was a mention of the DOCS team and that led me to believe that if DOCS had been involved, there could have been harm occasioned to this child at a previous time. So based on all those factors, I thought that that child was in need of - you know - I needed to remove that child from that situation."
47When asked why he wanted to arrest the plaintiff, Sergeant Barakat gave the following evidence:
"A: It was clarified from again Bankstown 300 that an offence of assault and a contravene of a breach of AVO, two serious offences when it comes to domestic violence, two offences, especially the contravene AVO is something that we need to deal with there and then. It's not something that needs - it's an offence where there's a presumption against bail. It's a court order, it's a breach of a court order."
48Sergeant Barakat gave evidence that he went into the living and dining area as shown on exhibit A. Several other officers entered the house and spread out to "clear the house". When he did not locate the accused or the young child in the living area, Sergeant Barakat walked straight out and estimated that he had been in the house for "maybe 30 seconds". The other officers left approximately 15 seconds later. He denied touching anything in the house. He did not recall whether he turned any light switches on.
49Sergeant Barakat was then taken through exhibit 3, the VKG radio transcript. In doing so, Sergeant Barakat identified various entries as being of significance in the exercise of his power to enter the premises. For example, in exhibit 3, item 25 was a broadcast from Bankstown 300 which read as follows:
"Warning for aggression towards Police and he was a disqualified driver till 2011. If the first car that gets there could confirm if that child is there so I know where to send the DOCS crew."
50Sergeant Barakat gave the following evidence in respect of that entry:
"Q: What effect did that information have on you, the warning of aggression?
A: To me it was just also went in my decision making to show that there was a propensity of violence with the accused based on the - the evidence with the victim, the AVO in place and now, his warnings that he's got - shows aggression towards Police. It highlighted my fears for the - harm or the welfare and - of that child, if you know what I'm trying to say."
51Sergeant Barakat also identified item 97 in exhibit 3 as related to his exercise of power on that day. It read as follows:
"I just need, information for 300, this house is unlocked and unsecured, we're just going to go through the house and just secure it. Is there any information in relation to the vehicle this guy may be driving."
52Sergeant Barakat also said item 112 was significant. That item included a reference to canvassing neighbours to see if they had seen anything, once it was established the plaintiff was not at the premises. That occurred, however, after the search of the premises conducted by Police.
53Sergeant Barakat gave evidence that he was able to source a phone number for the plaintiff. He however did not recall from where he was able to source that number. He gave evidence that he called the number and spoke to the plaintiff and had a conversation with him about his whereabouts and that of his son, Addison. During that conversation he was told that the plaintiff was at Bankstown Police station and he asked to be put on to a Constable. He then spoke to Constable Voget and instructed him to place the plaintiff under arrest for breach of AVO and for assault.
54Sergeant Barakat gave evidence that he relied on ss 9 and 10 of LEPRA to enter the house. In relation to s 9, he relied on a belief that someone was in imminent danger of physical harm or had suffered significant harm. He referred to it as the "second part of s 9". The person he was concerned about was the two year old child Addison.
55When asked what part of s 10 he relied on he said "Pretty much all of it ...".
56When asked if he was aware that the plaintiff was at the Police station he would have entered his premises, Sergeant Barakat said "Absolutely not".
57In cross-examination Sergeant Baraket gave evidence that he had first seen the transcript of the VKG recordings for 6 May 2010 a couple of weeks before the trial. He had an independent recollection of the incident, but made no notes at any time in relation to the incident. In the meantime he had, over a three year period, attended numerous domestic violence matters. It was put to Sergeant Barakat that all particulars of the incident should have been recorded in his Police notebook as soon as possible. He was the one who had exercised powers under ss 9 and 10 of LEPRA to enter the premises, but could not recall whether he was the first Police officer who entered.
58Sergeant Barakat was cross-examined on the requirements set out in the Police Service Handbook for Police officers to record relevant matters relating to incidents in their notebook. The handbook became exhibit C in the proceedings. He gave evidence that there were other officers at the scene who could have recorded the incident in their notebooks, it was put to him that there was a requirement outlined in the handbook that he was obliged to counter-sign any entries made by such officers. He did not understand that to be the case.
59He had not checked his notebook in this case and could not recall counter-signing any other officers' notebook.
60Sergeant Barakat had been served with a subpoena to give evidence at the trial, as a result of which, he accessed the COPS system as he did not know what the matter was about. At the time he received the subpoena he had no independent recollection of the event.
61It was put to Sergeant Barakat that item 70 in exhibit 3, which referred to the victim giving Police the wrong address, and that she was probably trying to protect the plaintiff, indicated that the victim was lying to the Police. His response was that she was being uncooperative. That was not a matter of significance for Sergeant Barakat in relation to the welfare of the child.
62Sergeant Barakat agreed that he did not record the telephone conversation with Mr McCarthy which he gave in evidence in chief in his Police notebook. Nor did he check the mobile telephone call-charge records for phone calls made that day. He had raised that matter for the first time with Counsel for the defendant on Tuesday 10 December 2013, the first day of the trial. It was put to him that he had reconstructed the evidence in relation to making the phone call, which he denied. He agreed that when he spoke to Mr McCarthy he was a suspect for a criminal offence, but notwithstanding that, no record had been kept of the conversation.
63He agreed that he had exercised power in relation to the arrest of the plaintiff by instructing Constable Voget to arrest him.
64Sergeant Barakat agreed that all Police vehicles travelling from Powell Street Yagoona to Larien Crescent did so as a routine response code blue, notwithstanding that there was an urgent, imminent danger to the two year old child. His explanation for the difference between going code red or code blue would have been a matter of seconds.
65Sergeant Barakat was also cross-examined on item 97 in exhibit 3, referred to at [51] above. He had a recollection of the radio advising that the house was unlocked and unsecured.
66Sergeant Barakat could not recall the Police who were present at 66 Powell Street when he first arrived there, however, he did recall that Senior Constable Sands was present. When he arrived at the premises there were several Police already present, although he could not recall the exact number. Whilst outside the premises he was given information by Senior Constable Sands but could not recall the details, only that it was information concerning the accused, namely the plaintiff and possibly a vehicle. Relying on exhibit 3, he believed that there were two Police vehicles present and four others including his own vehicle arrived. He agreed that he had no real independent recollection of what occurred at the premises.
67Sergeant Barakat had no recollection of whether other Police arrived at the premises after him. He did not agree that by the nature of his rank and duties as a supervisor he had specific obligations and responsibilities to ensure that other Police acted in accordance with the Police Service Handbook. His response was "Not necessarily". His explanation was that all officers had an obligation to abide by the Handbook. He did agree that he had an obligation to ensure that other Police acted ethically and properly whilst inside the premises. He did not agree that that extended to keeping an eye on Police whilst they were inside the house to make sure they did not do anything wrong.
68Sergeant Barakat did not agree that it would be unusual for a person trying to hide from Police to leave their front door open. When he arrived at the premises he did not see the plaintiff, nor did he make any observations of anyone being present in the house. He agreed that he definitely did not hear a two year old child crying out.
69Sergeant Barakat could not recall who was the first Police officer to enter the premises. He had no recollection of turning the lights on. He did not accept that inquiries could have been made of the neighbours as to the whereabouts of the plaintiff before Police entered the house.
70Sergeant Barakat was questioned about a tasking sheet he completed later that day in respect of his use of the Police vehicle Bankstown 14. That document did not refer to his presence at the premises being in relation to a breach of the peace or to arrest an offender. His explanation was that the job broadcast was "domestic", meaning a domestic related incident. He agreed that there was no accountable official document that recorded his entering the premises for the purpose of arresting a person.
71In re-examination Sergeant Barakat stated that he did not create a notebook entry in relation to his attendance at the premises because he was not the officer in charge of the matter. Senior Constable Heard was allocated to be in charge of the matter. Sergeant Barakat had never been asked to provide a statement. During the time of his attendance at the premises he did not have a recollection of seeing any Police officer acting inappropriately or unethically.
72When asked what the main purpose of his entry into the premises was, his answer was as follows:
"A: I - there's two factors, the arrest of the accused and the welfare of that child.
Q: When you say welfare of the child, what do you mean?
A: We believed that child was in risk of harm.
Q: What kind of harm?
A: Anything that could range from assault to death."
73He said his main focus when he entered the premises was to try and arrest the accused and locate the child.
74Senior Constable Neil Heard was performing general duties on the afternoon of 6 May 2010 in Police vehicle Bankstown 38. He was working with Constable Wakefield. Whilst at the Bankstown Police station at 4.50pm he heard the voice of the domestic violence liaison officer on Police radio. The broadcast concerned the welfare of a two year old child who was in the care of a Paul McCarthy and that Police needed to attend an address urgently to take custody of the child and to arrest Mr McCarthy for assaulting his 38 week pregnant wife and breaching an Apprehended Violence Order.
75An urgent response was required, following which, Senior Constable Heard and Constable Wakefield proceeded to 66 Powell Street in Yagoona. Whilst en route, the radio broadcast that that was an incorrect address and they proceeded to the new address. When he arrived there were three other Police vehicles there, numbers 400, 14 and 35. A sketch plan of where those vehicles were parked became exhibit 7. Senior Constable Heard observed Senior Constable Sands and Sergeant Baraket walking up the driveway to the front of the house. Senior Constable Heard observed them to stop at the door. He was two metres behind them. He heard Sergeant Barakat saying in a loud voice "Police, Police".
76There was no response and the front door of the house was open. Senior Constable Sands and Sergeant Barakat walked into the house and Senior Constable Heard followed them. When asked why he went into the house his evidence was:
"A: I had concerns for the child, I believe that the child was in that house with the father from what I had been told by a Police officer on radio."
77Senior Constable Heard said that the open front door caused him even more concern because the area was known for break and enters and he did not believe that people in Birrong left their doors open during the day. When asked why he thought the offender was inside the house, he gave this evidence:
"A: Well I hadn't been, hadn't been updated with any other radio responses saying that he'd been located or found anywhere else so I believed that he was inside that house with his child."
78Senior Constable Heard observed Senior Constable Sands to clear the bedroom on the left-hand side. By "clear" he meant "make sure that there was no one in that room". He denied touching anything inside the house or observing any other Police officer to do so. He walked through the kitchen to the laundry and did not turn on any lights. He observed the back door frame to be smashed off and observed the door jamb to be up against the lounge. He then went into the laundry but did not touch anything there. Then he walked out from the laundry and stood and looked in the backyard, then turned around and returned through the house to the front door. He was the last person, namely Police officer, out of the house. When asked how long he was in the house he said "One minute".
79Senior Constable Heard gave evidence that he then heard a broadcast on his Police radio from Constable Sands that the house was empty and that the Police were going to secure it.
80When outside the house he observed Sergeant Barakat on a mobile phone but did not hear any conversation.
81Senior Constable Heard gave evidence about his official Police notebook entries including the statement of Jamie Wheatley. The relevant parts of the notebook became exhibit 8.
82Senior Constable Heard made a statement on 16 May 2010 for the purpose of the criminal proceedings. That statement became exhibit 9.
83Senior Constable Heard also gave evidence about the COPS entry which he created in respect of the event and exhibit 6, the incident log. The COPS entry became exhibit 10.
84In cross-examination Senior Constable Heard agreed that in none of the Police records or documents that he had refreshed his memory from was there any reference to Sergeant Barakat. He said he had an independent recollection of attending the premises and observing Sergeant Barakat holding a mobile phone out the front of that house. He had not discussed his evidence in the case with any Police officer. He was asked about contemporaneous notes made in his notebook at page 6 whilst he was at that property. Nowhere on that page had he recorded that he had entered the premises, nor that he had exercised a power pursuant to s 9 or 10 of LEPRA.
85Senior Constable Heard had used his Police notebook entries to refresh his memory for the purpose of preparing his Police statement on 16 May 2010. His statement, however, referred to pages 7-16 of his notebook, which he explained as a typographical error.
86Senior Constable Heard was asked about the narrative contained in exhibit 10, the COPS entry. Neither contained a reference to entering the premises.
87Senior Constable Heard disagreed with the proposition that the fact that he had entered the premises and made observations of a broken door would be relevant matters to put in the facts sheet to be put before the Magistrate. His reason for doing so was as follows:
"A: Because I wrote these facts based on the domestic assault that had occurred between the two parties to form the prima facie with the evidence of the assault occurring." (sic)
88Following the ERISP conducted with the offender, Senior Constable Heard gave evidence that he had dinner, and denied that he attended the premises between 7.30 and 8pm.
89Senior Constable Heard agreed that it was important in preparing the COPS event to ensure the information had to be accurate. It was put to him that the entry in the document "Domestic occurring now, POI still at location" was simply untrue. His answer was that he could not remember typing it. He then agreed that it was untrue. Senior Constable Heard could not explain that entry in exhibit 10 (at p 7).
90When asked why, in the ERISP interview, he did not inform the offender that he had entered his premises, his explanation was that he was focussing on the assault that had occurred in the house. He did not agree that it was relevant to his investigation that he had observed the damage to the rear door, nor did he seek an explanation from the plaintiff during the course of the interview why the front door of the premises had been left open when no one was inside. Senior Constable Heard did not give the offender the opportunity of reading the notes he had made in his Police notebook, nor did he fill in the information he had left blank on page 6 relating to the offender, namely, his date of birth and driver's license. His explanation was that he didn't need to do that because the information came up on the COPS entry automatically once he had been booked into custody.
91Senior Constable Heard gave evidence that he believed that the plaintiff was in the premises, but not hiding within the premises. He agreed that looking for someone inside the premises it would not be usual to look under the bed. After he entered the house, he stepped into the first room on his left, behind another officer, he then entered the lounge room where there was another officer present, he then walked through the house to the laundry and to the rear of the premises. He could not remember how many bedrooms there were in the house, although in paragraph 4 of his Police statement (exhibit 9) he had stated that he had walked through each room through to the laundry. His explanation for stating that was that they were the only rooms he could remember. That was so, notwithstanding that the statement was made 10 days after the event.
92Also inconsistent with his evidence was that he said in his statement that he walked to the rear yard. He estimated the time he spent inside the house as approximately one minute.
93When he arrived at the premises the other Police vehicles already present were Bankstown 35, Bankstown 14 and Bankstown 400. He did not refer to another vehicle, MEOC 37, which other evidence established was the first to arrive at the premises (see exhibit 3, item 82).
94He did not tell the plaintiff during his ERISP interview that he had been inside the premises or closed the door because he did not think it was necessary to do that. Whilst he pulled the front door shut when he left, he had no recollection of locking it.
95Senior Constable Heard had no recollection of giving the keys to Bankstown 38 to Constable Wakefield on 6 May 2010 at 7.30pm. Nor did he request any evidentiary statements from either Sergeant Barakat or Constable Sands.
96Senior Constable Heard was the officer delegated the responsibility of responding to a subpoena for production of documents served on the Commissioner of Police. In the process of doing so, he had listened to the VKG recording of 6 May 2010 to refresh his memory. He did not agree that it had influenced his recollection of what had occurred. The reason for that was that it was the only domestic he had attended where a 38 week pregnant woman had been assaulted.
97In re-examination Senior Constable Heard was asked about the vehicle tasking sheet which set out the tasks allocated to Police officers each day. He gave evidence that Constable Wakefield was a Probationary Constable at the time and permitted to drive a Police vehicle by himself.
98Constable Wakefield attended the premises at 39 Larien Crescent with Senior Constable Heard. There were other Police present but he could not recall who they were. He entered the premises after Senior Constable Heard but could not recall who entered the premises before him. He searched the bedrooms marked bedroom 1 and bedroom 2 on exhibit A and then walked towards the laundry where he saw the door frame off. He did not touch anything in the premises and was there for about one minute.
99On the front lawn he observed Sergeant Barakat making a mobile phone call and then proceeded with Senior Constable Heard to Bankstown Hospital. He was present when Senior Constable Heard interviewed the plaintiff. He made no notebook entry in relation to the incident.
100Constable Wakefield gave evidence that as a Probationary Constable he was not permitted to drive a Police vehicle by himself.
101In cross-examination Constable Wakefield said that he had reviewed the original brief, the VKG recording and his statement to refresh his memory before giving evidence. He had also made a report into the matter.
102Prior to listening to the VKG radio recording he had no independent recollection of what was said on the Police radio that day. His Police statement was prepared on 8 June 2010.
103Before preparing his statement he had read Senior Constable Heard's statement "to jog my memory".
104The reason he went into the house was because of the "radio call we received" for concerns for the child and "we believed" that the child was at home. He had no records relating to entering the house and did not refer to it in his evidentiary statement. Nor was there any reference to the child in that statement.
105In cross-examination when asked when was the first time that he had told anyone that the reason why he entered the premises was out of concern for the child, he gave the following evidence:
"A: That was discussed when we were going there, to the address.
Q: What was said?
A: We were going there to arrest the offender and check on the child.
Q: Check on the child?
A: Yes. That's the information we had at the time.
Q: To check on the child?
A: Yes.
Q: There was nothing to indicate that the child was in immediate danger, was there?
A: No, there wasn't. We had no information.
Q: None whatsoever. When you arrived outside the house you didn't hear any child screaming or anything to indicate that harm was being done at that very moment--
A: No.
Q: --inside the house?
A: No."
106At Bankstown Hospital, he observed Senior Constable Heard taking notes from the complainant and agreed that that was the first time he had seen Constable Heard writing notes in his notebook. He had not been offered the opportunity to contribute to any notes that were made outside of the house in relation to anything that he had seen or done inside.
107Constable Wakefield was questioned about the tasking sheet (exhibit E). He had a recollection of attending the premises on only one occasion. When asked whether there was no reason for him to go back a second time his answer was:
"No, I don't think so."
108The tasking sheet showed that between 7.30 and 8pm his Police vehicle had been used to attend 39 Larien Crescent Yagoona. He did not agree with the entry. The tasking sheet was dated and signed on 7 May 2010 at 3am which was the finishing time of the shift. Constable Wakefield stated that they had not been back to that address at that time of night. They had no reason to go back to that address. He agreed that the tasking sheet was not accurate and said that he had made an error in recording the attendance at the premises at between 7.30 and 8pm.
109When asked to accept that he could not exclude that he did return to the premises he said that it was an error in the tasking sheet. That was not notwithstanding that he could not recall what he did after the plaintiff's ERISP interview.
110In re-examination Constable Wakefield said that he did not have Senior Constable Heard in his view the whole time when he exited the premises. He was asked about the entry in exhibit E at 7.30pm which said "File" under the heading "Job Type". He could only explain that as some sort of paperwork.
111Leading Senior Constable Craig Sands was on 6 May 2010 working at the Bankstown Local Area Command doing licensing duties. His Police vehicle had the call sign Bankstown 400. He had no recollection of attending the premises and no recollection of entering the premises. He gave evidence based on his recent perusal of the transcript of Police radio VKG recordings on that day (exhibit 3).
112He gave evidence that he responded to the Police radio because this was a serious incident. It was an urgent job because of the double beeps heard on the radio. When asked why it was urgent he said:
"A: Due to the fact of a female being assaulted who's 38 weeks pregnant and also the concern for welfare for a two year old child."
113When asked what his concerns were for the child he said:
"A: The fact he has assaulted a woman that's 38 weeks pregnant, he may assault the child."
114Senior Constable Sands said item 97 in exhibit 3, namely, "I just need information from 300, this house is unlocked and unsecured", was significant in that he believed somebody was home. When asked why, he said:
"A: Because most people lock their houses if they leave the home. If the house if unlocked, there's a reasonable cause that somebody would be home."
115Senior Constable Sands gave evidence that a broadcast at 16:51:20 from the Domestic Violence Liaison Officer (Constable Mikaty) was significant in that he was at the hospital with the victim and Police were asked to go to the Powell Street address as a matter of urgency because the two year old child was there alone with the offender.
116In cross-examination Senior Constable Sands agreed that he had no independent recollection of the incident. He had not listened to the radio broadcast itself and his radio call sign was in respect of a vehicle shared with a Constable Halloway.
117He said the job was urgent because a female had been assaulted. His motor vehicle tasking sheet for the day contained the following reference:
"Assisted Bankstown 300, domestic."
118That entry did not indicate that he had attended either 66 Powell Street Yagoona or the premises. He had never put entries in his Police motor vehicle diary of locations he had attended to perform his duties. The accountable records indicating he attended those locations comprised the CAD messages and Police radio.
119With respect to his entering into the premises he had no recollection and therefore could not concede that he was not in a position to deny that he had moved the mattress or touched property.
120In re-examination he explained that by saying that the Police were in the premises looking for a person.