SB v The State of New South Wales

SB v The State of New South Wales - [2016] NSWDC 189 - NSWDC 2015 case summary — Zoe

Judgment Table of Contents Introduction [1] - [2] Pleadings [3] - [7] WITNESSES [8] - [22] FACTS The relationship between the Plaintiff and the Complainant's mother, R [23] - [32] The complaint [33] - [37] Interview with CB [38] - [39] Plaintiff's relationship with R following complaint [40] - [41] Background to the surveillance device warrant application [42] - [51] The application for a surveillance device warrant [52] - [68] Drafting surveillance device warrant [69] - [74] Interface [75] - [78] Detective Chaplin's contact with R [79] - [94] Pre-arrest and preparation of the Facts Sheet [95] - [97] Arrest [98] - [102] Merrylands Police Station [103] - [113] Interview [114] - [117] Other questioning [118] - [121] Charges and ADVO [122] - [126] No bill and withdrawal of the ADVO [127] - [128] WRONGFUL ARREST AND FALSE IMPRISONMENT [129] - [139] MALICIOUS PROSECUTION Ingredients [140] - [141] Setting for determining absence of reasonable and probable cause [142] Absence of reasonable and probable cause [143] - [150] What does the Plaintiff say? [151] - [153] What was Detective Chaplin's knowledge? [154] - [171] The Plaintiff's pubic hair [172] - [174] Consistency between the statements of the Complainant and CB [175] - [184] What were the circumstances leading to the commencement of proceedings? [185] - [192] Other factors not tested [193] - [195] Detective Chaplin's assessment [196] - [219] Malice [220] - [225] Complainant's statement as to circumcision not put to the Plaintiff in the ERISP [226] - [230] Complainant's description as to circumcision not revealed to the Plaintiff in response to his request [231] - [252] Whether Detective Chaplin maintained the criminal proceedings after 7 June 2012 and the apprehended domestic violence order [253] - [262] DAMAGES [263] - [302] ORDERS [303]

[5]

Pleadings

On 19 October 2015, leave was given to the Plaintiff to file an Amended Statement of Claim in Court. That pleading brings proceedings against the Defendant as the party responsible for the acts of Detective Troy Chaplin, an officer of the NSW Police. [1] The Defendant conceded that it was vicariously liable for any torts committed by Detective Chaplin. [2] The Amended Statement of Claim makes allegations as follows:- 1. Wrongful arrest and false imprisonment commencing on 6 June 2012, with the false imprisonment resulting in loss of liberty for 10 ½ months; [3] 2. Malicious prosecution in respect of the charges laid on 6 June 2012 and continued until 21 June 2013; [4] and 3. Malicious prosecution of an ADVO order obtained on 6 June 2012 which remained in place until 17 September 2013. [5]
The Defendant asserted that at the time of arrest, Detective Chaplin suspected that the Plaintiff had committed an offence and further, that there were reasonable grounds for that suspicion, and it was reasonably necessary for one or more of the purposes identified [6] in s 99(3) of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW). [7] It was further asserted that from 7 June 2012, the Plaintiff's imprisonment was a result of a judicial act. [8]
The Plaintiff submitted that no facts were pleaded or particularised to outline the basis of Detective Chaplin's suspicions, the reasonable grounds for holding any suspicion or the need for arrest. [9] Whilst this is correct, no complaint was raised during the trial and in particular, no complaint was made as to a failure to comply with UCPR 15.1 or 15.4.
In respect of the malicious prosecution claim relating to the sexual offences, [10] the Defendant denies that it prosecuted the Plaintiff and says that from 7 June 2012, the Director of Public Prosecutions took over the prosecution. [11] Further, the Defendant denies an absence of reasonable and probable cause for the institution and maintenance of the charges against the Plaintiff. [12] It also denies malice in bringing the charges. [13]
In relation to the claim of malicious prosecution arising from the ADVO, [14] the Defendant denied that it initiated and maintained the proceedings against the Plaintiff, denied that there was an absence of reasonable and probable cause for the institution and maintenance of the proceedings for an ADVO, and further, denied malice. [15]

[6]

WITNESSES

The matter proceeded with the Plaintiff, his brother and Dr Roberts giving oral evidence in the Plaintiff's case. Understandably the Plaintiff has a grievance over what had occurred and saw these proceedings as a means of vindication. He deliberately decided not to pursue psychological treatment in order to allow him to remain focussed on bringing to account those who he considered had wronged him. [16]
In the Defendant's case evidence was given by Detective Troy Chaplin and Senior Constable Mark Scott-Mahjet. Cross-examination of Detective Chaplin commenced on 22 October 2015, continued on 23 October 2015 and was resumed on 18 February and 22 February 2016. The delay related to a contest over a disputed claim as to the privilege of documents produced by the Office of the Director of Public Prosecutions [17] on subpoena. This was determined by Maiden DCJ on 25 November 2015. When the matter resumed many of the lines of questioning that had been put to Detective Chaplin on the earlier occasion were canvassed again, although some of the responses were at variance with those he had earlier given. Ultimately, counsel for the Plaintiff submitted:- "That takes me to the constable because at the end of the day your Honour is going to be called upon to have to make an evaluation of his evidence and it is our respectful submission that by the time he had concluded giving his evidence it had been clearly established that he was an unsatisfactory witness who had given internally inconsistent evidence on material matters. Indeed, where he was cornered in certain respects, falsified his evidence and had in certain respects falsified it for the purpose of trying to explain the unexplainable. He was also a witness who prevaricated and who evaded and who tried to avoid answering questions on matters, with respect, clear questions that were put to him and he was a witness who when confronted with inconsistencies was disinclined to face up to the inconsistency but rather tried to talk his way out of the dilemma in which he found himself. I will give your Honour some illustrations of this when I take your Honour to his evidence in a moment. As I said at the outset the remarkable thing in the defendant's submission is knowing that there is a head on attack on that witness there's nothing at all said in their submissions about his credibility. What we say the result of the matters that I have just put to your Honour is that your Honour would not accept what he says unless it is supported by other evidence that your Honour does accept …" [18]
The proposition advanced by the Plaintiff in relation to Detective Chaplin's evidence is contrary to the general views on witnesses' credibility expressed in Sangha v Baxter. In that case, Basten JA stated:- "There are risks in making global findings about credibility of any particular witness. Because a witness has not told the truth with respect to a particular matter does not mean that other parts of his or her evidence are untruthful. Where possible, an assessment should be made of the reasons for the untruthfulness in order to see if other aspects of the evidence are likely to be infected by the same concern. Further, evidence may be rejected because it is apparently unreliable, possibly mistaken or deliberately untruthful or capable of being categorised in a variety of ways which are unlikely to be capable of clear delineation in some cases. Further, findings of credibility are not usually findings with respect to factual issues in the case, but are rather subsidiary findings on the way to determination of issues. Like many aspects of the evidence in a trial, the evidence of a witness who is believed to have lied in a particular respect, will nevertheless be able to bear some weight and should be placed into a balance, with other material evidence, before a conclusion is reached in relation to a critical fact. The rejection of a witness in total, absent corroboration is likely to mean that, even where corroborated, little attention will be paid to the evidence of the witness and less to the possible consequences which might flow from the fact that particular evidence is shown to be truthful: see generally, King v Collins [2007] NSWCA 122 at [44] (emphasis added)." [19]
Detective Chaplin had many questions directed to his state of mind when doing things four years ago in a lengthy and at times, repetitive cross-examination. There was also an interval of over three months between the commencement and completion of cross-examination. I have borne this in mind. As these reasons will elaborate, there are areas where I have found Detective Chaplin's evidence to be unreliable. In addition some of the records he prepared during his investigation were inconsistent. As these reasons demonstrate criticism can be directed to some of his actions. He himself conceded that with the benefit of hindsight he could have done some things better.
In the fact finding process I have considered Detective Chaplin's evidence in the context of the principles usefully summarised by Hallen J in Pupo v Pupo. [20] I accept that alongside the prosecution of the charges and the advancement of the ADVO he had an understandable concern for the safety of the Complainant and her family. I also accept that he laboured under some difficulties in assembling evidence from the Complainant and her mother, R.
The Plaintiff also submitted that the way in which Detective Chaplin gave his evidence and the matters about which he gave his evidence left the state of the evidence in a situation which "mandated' the calling of R. [21] The Plaintiff contended that the obligation to call R and her unexplained absence gives rise to the strongest of Jones v Dunkel [22] inferences that could reasonably be drawn. [23]
The submission was put:- "The rule goes on to point out how the rule only applies where a party is required to explain or contradict something and in this case, your Honour, that's why I started how I did. The state of Constable Chaplin's evidence and the tact that was made on it is such that where there was capacity, as it were, to affirm or corroborate what he was saying by this lady giving evidence then the failure for her to give that evidence unexplained gives rise to the Jones v Dunkel type inference that we seek." [24]
That submission does not identify with precision what it was asserted that the calling of R was required to explain or contradict. JD Heydon in Cross on Evidence [25] notes that "what a party is required to explain or contradict depends on the issues in the case as thrown up in the pleadings and by the course of evidence in the case." [26] In reply, counsel for the Plaintiff identified the issue as:- "Assertions about what she said, assertions about her demeanour when a statement was to be sought, assertions that she executed her statement on a particular day, all of these were contentious issues. All of them were effectively documented and despite my friend saying, well there's no requirement to document, there is a reference where Detective Chaplin concedes the inadequacy of at least the statement taking process with [R]." [27]
In the context of the case I accept that the major challenge raised by the Plaintiff was as to Detective Chaplin's assertion that prior to charge, he was aware of the Plaintiff's penis being circumcised having been informed by R and further that he was unable to obtain a formal statement before charge from R because of her emotional state.
Counsel for the Defendant disputed the Plaintiff's characterisation of the application stating:- "Mr Campbell made a submission, at the outset of his oral submissions, that your Honour ought have regard to the principles in Jones v Dunkel and the related line of authorities; and that those authorities were applicable because of the absence from the defendant's case of the complainant's mother. It was put on the basis that Detective Chaplin's evidence could not be accepted unless it was otherwise corroborated and that the absence of the complainant's mother could properly be used as a basis for not accepting Detective Chaplin. That is simply wrong, as a matter of law. Jones v Dunkel cannot be used in the way that Mr Campbell, on behalf of the plaintiff, advances it." [28]
In Manly Council v Byrne and Anor [2004] NSWCA 123, Campbell J (with Beazley JA and Pearlman AJA agreeing) stated:- "[54] The inferences licensed by Jones v Dunkel are ones which are drawn, if at all, once all the evidence in the case is in. This has significance in two ways. The first is that, though Jones v Dunkel licenses drawing more confidently, an inference available against the party who has failed to call the evidence, before that can happen there must first be available to be drawn, on the evidence which has been admitted, an inference against that party (emphasis added)."
In Goodhue v Volunteer Marine Rescue Association Incorporated [29] Gotterson JA stated:- "[28] The rule in Jones v Dunkel is not one that requires a party to call other witnesses in order to corroborate evidence of a witness that has been called by the party. It concerns the drawing of inferences. It enables a tribunal of fact more confidently to draw an inference of fact in favour of a party from the opposing party's unexplained failure to call a witness whom that party would be expected to call in order to give evidence concerning the fact. However, as the New South Wales Court of Appeal in Morley v Australian Securities and Investments Commission recently reminded, if a party's case is otherwise proved, the inference that the absent witness would not assist the party's case does not detract from the proof (emphasis added)."
In JPQS Pty Ltd v Cosmarnan Constructions Pty Ltd, [30] Meagher JA (with whom Beazley JA agreed, and Mason P substantially agreed) said:- "[24] When a finding of fact has been made in a party's favour by a judge, the fact that an absent witness' evidence, if it were given, would not support that finding, cannot disturb the finding actually made."
Counsel for the Defendant submitted on the question of why the Defendant should not have called R:- "What's put against us is that we should have called the complainant's mother. Sensibly there is no submission that we ought to have called the complainant because even Mr Campbell, one assumes, recognised that that would have been a bridge too far but there is no doubt that the plaintiff could not be criticised for failing to call the complainant's mother and, your Honour, nor can we be criticised for failing to issue a subpoena to compel a woman who has been through enough, I'm not suggesting the plaintiff hasn't but the complainant's mother has also been through enough with this process and had happened to her daughter ultimately what happened in terms of her breakdown in 2013 and, your Honour, firstly she's not someone that we would be expected to call and, secondly, her absence is otherwise explicable." [31]
In Payne v Parker, Glass JA observed that the rule only applied when "the missing witness would be expected to be called by one party rather than the other." Further, Glass JA stated:- "The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O'Donnell v. Reichard, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid., or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid; Regina v. Burdett, or where the witness' knowledge may be regarded as the knowledge of one party rather than the other: Earle v. Castlemaine District Community Hospital, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid (citations omitted)." [32] It was argued that it was necessary for R to be called. There was no evidence as to the reason for R's inability to give evidence before me. [33] The Plaintiff has submitted that R should be regarded as in the camp of the Defendant as she was heavily relied upon by Detective Chaplin. [34] That however is not the test. R was a witness to be called in the prosecution of the Plaintiff in respect of the charges and the ADVO. Ultimately those proceedings were terminated following Detective Chaplin's intercessions. [35] In my view it has not been established that overall R stood higher in the confidence of the Defendant. [36] In the circumstances I would regard her as being in neither party's camp. Even if I am wrong in this approach, I would not as a matter of discretion draw the inference sought particularly in the context of an action for malicious prosecution where the Plaintiff bore the onus of proof.

[7]

The relationship between the Plaintiff and R

The Plaintiff and R met in October 2004. [37] At the time, R had six children including the Complainant, then aged 10. The Plaintiff resided at his home in Seven Hills, and R was living at her residence at Lurnea. [38] A relationship commenced in 2005, although both the Plaintiff and R continued to reside at their respective homes until October or November 2005. [39] The Plaintiff met the Complainant and her siblings for the first time in June 2005. At that stage, the Plaintiff and R had been going out for a period of approximately 6 months. [40] Between October or November 2005 and August 2006, R and her children resided at a women's refuge in Burwood. [41] In October 2006, R and her children moved to Sydney Joseph Drive, Seven Hills.
The relationship was interrupted on 21 March 2010, when the Plaintiff was charged with the offence of assault occasioning actual bodily harm arising from an incident with R. [42] NSW Police applied and obtained an apprehended violence order against the Plaintiff arising from the incident, and R's mother, also obtained an apprehended violence order against the Plaintiff. [43] According to the chronology, the Plaintiff left the premises at Sydney Joseph Drive, Seven Hills at around the same time. [44]
The apprehended violence order prevented the Plaintiff from going within 100 metres of R or from going to her home. Bail conditions were also imposed to the same effect. [45] Notwithstanding this, on 15 July 2010, the Plaintiff conceded that he was pulled over for a random breath test and R was in the motor vehicle, and he was charged with contravening the apprehended violence order that was granted on 21 March 2010. [46]
The Plaintiff readily conceded that the circumstances of him being in the vehicle was at a time when he was still subject to certain bail conditions and the apprehended violence order. [47] He conceded that there were other occasions between 21 March 2010 and 15 July 2010 when he and R were in contact and that this was in contravention of the apprehended violence order. [48]
Despite attesting that the hearing of the assault charge involving R took place in November 2010, the Plaintiff conceded in cross-examination that he was found guilty of the offence in May 2011. [49] Despite asserting in his chronology that he was placed on a six month good behaviour bond, he conceded in cross-examination when it was put to him that he received an 18 month good behaviour bond saying;- "Yes something like that I think, yeah, I'm not too sure." [50]
The Plaintiff accepted in his chronology that shortly after the hearing of the charge involving R, the apprehended violence order was varied so as to permit his relationship with R to continue. [51]
The Plaintiff admitted assaulting R's mother at R's house on 5 November 2010. [52] The Plaintiff conceded that at the time of the assault on R's mother, he was still the subject of an apprehended violence order that prevented him from contacting R. [53] When asked whether that was the only time that he had been to R's house between the period commencing from the granting of the apprehended violence order to the trial in May 2011 he stated that he thought that he had been "over there a couple of times." [54] He stated that he understood that at that time, he was in breach of the existing apprehended violence order. [55] He conceded that on the occasion he was present in court in early 2011, he told R words to the effect: "We are still together and we will be together forever." [56] He presumed correctly that in January 2011 he was still the subject of an order preventing him from speaking to R. [57]
The Plaintiff conceded that after March 2010, he did not cohabitate with R. He conceded that the relationship he had from that time until at least January 2011 was conducted discreetly. [58] Nevertheless, he accepted that he remained in contact with R (including speaking on the phone). [59] He stated that he was still engaging in sexual relations with R after March 2010. [60] He also denied that R had ceased contact with him. [61]
In October 2010, the Plaintiff was charged with assault occasioning actual bodily harm on R's mother. [62] In September 2011, he was convicted and sentenced to 6 months imprisonment. [63] A successful appeal was brought to the District Court of NSW following which the Plaintiff was released in late 2011. [64] There was some suggestion that on his release he was subject to parole orders. [65]
The Plaintiff's relationship with R resumed following his release and continued up to around the middle of January 2012. This was two days before the Complainant informed R that the Plaintiff assaulted her. [66]

[8]

The complaint

In late December 2011, the Complainant spoke to her best friend, CB and asserted to her that she had been sexually assaulted by the Plaintiff. [67] In January 2012 (believed to be on the 17 January 2012), the Complainant is said to have told R that "[the Plaintiff] raped me." [68]
On 18 January 2012, the Complainant in the company R, attended upon the Blacktown Police Station and reported allegations against the Plaintiff to Detective Constable Chaplin. The process of taking a statement from the Complainant took approximately three months, involving three meetings held on 22 January 2012, 23 February 2012 and 17 April 2012. [69] On 22 January 2012, the Complainant was asked to return to continue her statement on 25 January 2012. [70] The Complainant did not return on 25 January 2012. Detective Chaplin records in his duty book on 21 February 2012 "[c]ontact [R]". [71] Thereafter the Complainant returned to continue her statement on 23 February 2012. [72] She did so between 5:20pm and 8:00pm. [73] Further contact in relation to obtaining a statement was made on 12 March 2012 between Detective Chaplin and R. [74] The Complainant ultimately did so on 17 April 2012 at 1:00pm and completed it at 4:00pm that day. [75]
According to Detective Chaplin, the dates were chosen around his and the Complainant's availability. [76] He took the statement as opposed to using an ERISP [77] facility on the advice of the Sex Crimes Unit. [78] It was implicit that at the time of taking the Complainant's statement and until other events had transpired, that there was no specific urgency from Detective Chaplin's perspective. [79]
In her statement, the Complainant described in some detail, the facts the subject the offences ultimately brought against the Plaintiff. In addition, the Complainant stated:- "… [The Plaintiff] undid the zipper and pulled out his penis which was erect and held it in one of his hands. Now that I know the difference between a circumcised and un-circumcised penis, I remember [the Plaintiff's] was circumcised." [80]
The Complainant also described how the Plaintiff required her to engage in an incident of oral sex. In relation to the Plaintiff's penis, the Complainant describes:- "… I remember feeling so discussed (sic) because around his penis was so hairy and right in my face." [81]

[9]

Interview with CB

Following Detective Chaplin having completed the Complainant's statement Constable Michael Carl took a statement from CB. [82] CB sat in on all the interviews between Detective Chaplin and the Complainant before she made her statement but not when she recounted conversation with CB. [83]
In her statement, CB refers to the Complainant's first disclosure to her of the assaults by the Plaintiff in the following terms:- "About midnight my brother, Karl arrived home and had picked up [The complainant] walking along the road. [The complainant] came into my bedroom and was acting crazy. [The complainant] was ranting and raving and falling into the walls. I had seen [the complainant] drunk heaps of times but this was different. I asked [the complainant] if she had taken anything. The complainant attempted to avoid the question and we argued for a while. I was so concerned about [The complainant] that I tried to leave and get Karl but [the complainant] kept cutting me off. [The complainant] was obviously upset and was having a breakdown. That's the best way that I can explain her behaviour. [The complainant] said - '[the Plaintiff] used to rape me.' I was in total shock and hugged [the complainant]. [the complainant] started to cry and we just hugged each other. I was wondering how it could happen because [the complainant] had a busy household. I asked [the complainant] how and when it happened. I don't know the exact words used by [the complainant] but she started to explain how and when it happened. [The complainant] said words like: '[the Plaintiff] used to make me dress up'. The complainant explained that it would happen when her mum took the kids out and she was left at home with [the Plaintiff]. We continued to talk and [The complainant] continued to explain that sometimes when everyone was home and her mum had a shower [the Plaintiff] would go into room [sic]. I remember asking [the complainant] how long it had been going on. [The complainant] said - 'Since I was about 9.' We spoke further about what happened and [the complainant] kept saying that her mum could never find out and stated that she didn't want to talk again about it after tonight. We spoke for about 20 minutes and I comforted her. [The complainant] fell asleep and. I don't remember talking about it after that night." [84]

[11]

Background to surveillance device warrant application

On 17 January 2012 when the Complainant and R had attended Blacktown Police Station, an entry was made in the COPS [91] which read as follows:- "At this time no application has been made to vary or create a new ADVO as investigation strategies will become limited after the POI is made aware of the complaint. The VIC, NOK and OIC have no immediate concerns for the VIC's safety due to no contact with the POI. Application will be made immediately for protection orders once investigations methods complete or immediate concerns identified."
In the same document on 17 April 2012 [92] , it was recorded as follows:- "On 17 April 2012, the victim statement was completed and reviewed. FACTS completed and the affidavit for SD/LD underway … VIC protection (ADVO) to be implemented at first available chance. Consultation with VIC and VIC's mother confirms still no contact or identifiable threat currently exists against the VIC or her family."
The entry indicates that the application for a surveillance device warrant was contemplated in circumstances where there was no contact or identifiable threat against the Complainant and her family, and Detective Chaplin determined to apply for warrant on completion of the Complainant's statement.
Detective Chaplin conceded in evidence that this was his understanding and that he made the decision to apply for the interface no later than the date he had completed the Complainant's statement. [93]
He subsequently qualified this by saying that there was contact between R and the Plaintiff, but no contact between the Complainant and the Plaintiff. [94]
Detective Chaplin stated:- "That wasn't finalised before the break in relation to the differentiation between [R] having contact with [the Plaintiff] and [the complainant] or her siblings being at risk. So was I aware that [R] was in contact with [the Plaintiff], yes. Was I of the belief and understanding that there was no risk because The complainant or any of her siblings were in contact with [the Plaintiff], no, I wasn't because they weren't in contact with him." [95]
Detective Chaplin expressed concern about safety in the following exchanges:- "After speaking with [the complainant] and [R] I was of the belief there was a possibility of interference or intimidation of one of the witnesses and that is why I decided to arrest rather than issue any other court attendance notice." [96] And further:- "An AVO will not protect a person in need of protection listed on any AVO, it's just a piece of paper that is often breached. Looking at [the Plaintiff's] history he'd breached several AVOs in the past and obviously there were no guarantees that I could protect the victim with merely an AVO." [97]
Detective Chaplin felt he couldn't request the Plaintiff to come in and assist with his enquires without arresting, stating: "Q. What's to stop you picking up the telephone and saying, "[Plaintiff] could you come in and assist us with our inquiries, we'd just like to have a chat with you about a matter"? A. There's plenty to stop me in this case. Q. What? A. Well, the fact that at the time [the Plaintiff] was on parole for DV assault against one of the family members, and if he was made aware of a possible complaint in relation to this, then of course there's a real threat of intimidation or attempt to contact or harm the witness or victim in this matter. Q. But you knew the terms of his parole meant that he couldn't approach didn't you? A. Well, he had an AVO but he'd breached that on numerous occasions as well. Paper doesn't mean anything. Q. Sir, you say do you HIS HONOUR Q. You're not suggesting parole [is] the same as an AVO are you? A. No, sorry, your Honour. I am just getting to the point that once you know, once someone is made aware of the situation, I identified a history of violence with the family from [the Plaintiff]. I had concerns he may intimidate or harm someone who has made a complaint against him in relation to those matters. My first concern with any matter is the protection and safety of the victim. If that comes at the expense of how I may have to deal with an offender or alleged offender, I have to consider the victim first. If she turned around and I am by no means suggesting anything by this but if you turned around and he was to have killed her because she made the complaint well, then, you know, I am in Coroner Court explaining why. These are all the considerations I had to give as to what I would do and what course of action I would take. I had never met [the Plaintiff] before. Never met him, never met the family, never met the [the complainant's family], never met any of them so I had no idea what any of them were like. All I can do is go on his criminal record, he breached all the AVOs and he's done time inside for assault. My first concern is the victim. That is the only place I can act. I need to consider that first." [98]
Outside of the antecedents prepared for the bail hearing, Detective Chaplin conceded that he did not have a record of either the Complainant or R expressing concerns for their safety as at 6 June 2012. Detective Chaplin's evidence was: "Q. What I'm suggesting to you is that whilst there may have been expressed, on your evidence, concerns by [R] and/or the complainant about the complainant none were expressed about [R]? A. I don't recall but I had concerns. So whether they were expressed to me, I don't know. Q. You are unable to tell us, as you sit in the witness box now, about whether either or both of those persons had genuine concerns for their own safety as at 6 June 2012? A. I can't recall either one of them saying they had genuine concerns. Where that information came from would have been a combination of what they said as well as previous issues with [the Plaintiff]. Q. Specifically you have no recollection of them having said anything to you, that's either of those two ladies, having said anything to you about concerns for their safety should [the Plaintiff] be released on any form of bail? A. [R] expressed concerns but I don't recall whether it was about herself as well or only [the complainant]. Q. Did you record this? A. No. Q. Again we're just going off what your distant memory tells us about his." [99]
In the COPS entries it was noted before 6 June 2012: "At this time no application has been made to vary or create a new ADVO as investigation strategies will become limited after the POI is made aware of the complaint … " [100]

[12]

The surveillance device warrant application

The timing and context for the application was described by Detective Chaplin as being that he was aware that the Plaintiff and R were still involved in a relationship of a sexual nature. Specifically, Detective Chaplin stated:- "Q. Well, what else did you have? A. At that point after the arrest Q. No, I am talking about before the arrest. A. Sorry, sorry, my apologies. My apologies. Prior to the arrest I was made aware that [R] was still involved in a casual relationship with [the Plaintiff] of a sexual nature. Q. What does that have to do with the charges? A. Because that completely changed the direction of what had to be done. There was no urgency prior to that so therefore my investigation had to speed up in a sense because she was still in contact with him. Therefore, leading up to that I was under the belief there was no contact and no association but that was not the case. Q. Let me get this right because this is a very important matter going through your mind at the time. A. Yes. Q. Are you telling his Honour that you changed the way in which you decided to undertake the investigation that you were undertaking because you found out shortly before the arrest of this man, that he was then in some kind of sexual relationship with [R], is that what you are saying? A. I'm saying that was the cause of why I then decided to do the telephone interface." [101]
Detective Chaplin's attention was then directed to the affidavit submitted in support of the warrant to Garling J dated 1 June 2012. In that document Detective Chaplin stated:- "Although [the complainant] has not spoken with [the Plaintiff] before for about 2 years, [the Plaintiff] has been in regular contact with her mother in an attempt to rekindle their relationship. [The complainant's] mother believes that [the Plaintiff] will engage in conversation with [the complainant] to try and prevent her from reporting the assaults." [102]
Detective Chaplin was questioned about this statement, and his failure to identify that the Plaintiff was in a sexual relationship with R. He was asked to identify his information about the Plaintiff's attempts to rekindle the relationship. He responded that he was "contacting her." [103] When asked to reconcile the level of disclosure in the affidavit submitted to Garling J with the understanding that the Plaintiff was in a sexual relationship with R, Detective Chaplin stated:- "My understanding and from what [R] told me, yes, they were in a sexual relationship. Does it say, "sexual" in the affidavit, no, it does not." [104]
Detective Chaplin conceded that he did not record anywhere the terms of what R had told him in respect of any association between her and the Plaintiff between January and June 2012. [105] He stated that he did not feel the need to do so at the time. [106]
On 17 February 2016, Detective Chaplin's attention was drawn again to of his affidavit of 1 June 2012. [107] It was put to him that the contents above quoted were inconsistent with the suggestion of ongoing sexual association between the Plaintiff and R. He denied that there was an inconsistency and stated:- "In relation to the affidavit and the overall intention of the affidavit, she's in regular contact. Whether that be sexual contact or non-sexual contact is irrelevant." [108]
Detective Chaplin stated that the information he acquired as to the relationship was obtained before R's original statement of 24 October 2012 and the follow up statement of 28 March 2013. As noted earlier, his evidence was that he was in regular contact with R as the Complainant did not have a phone. He stated that as he needed questions answered, he would speak to R in relation to them. [109] He conceded that the information was not in R's statement. [110]
Detective Chaplin accepted that if he had the slightest hint that R was in a sexual association with the Plaintiff, it should have raised a concern. [111] Detective Chaplin then stated that he did not know what happened between January and June 2012, other than what he was told by R, which was that "it was not a sexual relationship." [112]
Detective Chaplin was next taken to the evidence he gave on 22 October 2015 as to Plaintiff and R being involved in a casual relationship of a sexual nature. [113] It was put to him that the evidence given [114] was different to the answer he had given regarding any association between the Plaintiff and R. The transcript records:- "Q. You've told us today that there was no sexual association to your knowledge between these two from January 2012 till charged? A. Where in that does it say the date; it just says, prior to the arrest, and it does not identify a date saying when that occurred. Q. Firstly, are you trying to tell us that the casual relationship of a sexual nature that you were talking about was one which had ceased no later than January 2012? A. Yeah, that's my understanding of what the evidence I've given you there is." [115]
Detective Chaplin was again asked about the matter on 18 February 2016. [116]
It was then put to Detective Chaplin that the contact issue did not lead to a sudden change in the direction of his investigation on or around 17 April 2012. The following is recorded:- "Q. They related to the events as at 17 April 2012 when you made the final decision about seeking a listening device warrant because you then finished the statement of [the complainant]? A. That's correct. Q. You agreed that at page 349 that your understanding was then that there was no contact or identifiable threat that currently existed against the victim or her family? A. That's correct. Q. What I'm saying to you therefore is, that means there was nothing about any then contact which had a bearing on your making an application for the interface warrant; that's correct, isn't it? A. So you're asking me if the warrant the application for the surveillance device warrant was submitted based on the contact, or non-contact, I was aware of that day, the day of submission; or are you asking me about when a decision was made to submit the surveillance device? Q. There was no sudden change in the direction of your investigation about 17 April because of contact issues; was there? A. No, there was not. Q. How then do you reconcile your answer, which I'll give back to you so that you've got it, at 287. A. Which line is that? Q. Same one I took you to before; line 35 to 39. A. Yes. Q. You're putting this forward as a reason why this was something of relevance, that's your previous answer at line 29. A. Yes. Q. Because that completely changed direction of what had to be done? A. That's correct. Q. There was no urgency prior to that, so therefore my investigation had to speed up in a sense because she was still in contact with him? A. That's correct. Q. I take it you mean, there were no urgency before 17 April because you certainly hadn't been urgent in your taking of the statement of [the complainant], had you? A. There was no urgency in the investigation prior to me becoming aware that [R]was still in a relationship with [the Plaintiff]. Q. Therefore leading up to that, I was under the belief there was no contact and no association, but that was not the case, you went on to say in your answer? A. That's correct. The urgency in the investigation strategy commenced at the beginning when I was made aware the statement like, she's come in, she's made the complaint, and then I was made aware that they were still in a relationship of sorts. Q. I'm sorry? A. [R] Q. You say, do you, that you were made aware that she was still in a relationship of sorts when she came in to make the complaint on 19 January? A. No, that's not what I said. Q. When do you say this awareness arose? A. I can't there's no date as to when she told me, but it was obviously at the beginning that she was still in contact with [the Plaintiff], because the fact that there's still contact if there was no contact, if there was no association with him whatsoever, there's no urgency to move forward. Q. But I'm having trouble with your answer, constable. You say to us now that in the early days, you can't tell us just which day, you became aware that she was still having contact with [the Plaintiff], and that concerned you? A. Of course that concerned me. This is well before 17 October when the surveillance device warrant was Q. 17 October, you mean April? A. April, yeah. Q. We've got 17 January, roughly, through to 17 February, 17 March, 17 April; there's three months there. A. Yep. Q. You can't tell us when in those three months you found this out? A. No. Q. But you say that then caused you to completely change the direction of what had to be done, and what, created an element of urgency about your investigation? A. Yes." [117]
However this was later qualified in the following exchange:- "Q. You knew nothing about any contact on 17 April; did you? A. I don't know when the contact was. Q. Any suggestion of contact had absolutely nothing to do with you seeking the interface; did it? A. Any contact? Q. Yes. A. Most definitely. Q. What contact do you say caused you to seek the interface? A. The interface is only going to be suitable if there's a reason or a contact number that you're able to obtain or proceed forward with so, of course, it's a consideration. Q. You have said in answer at line 35 that, "There was no urgency prior to that so therefore my investigation had to speed up, in a sense, because she was still in contact with him." A. That's correct. Q. You are saying there, are you, I think you then went onto say, "Therefore leading up to that I was under the belief that there was no contact and no association but that was not the case", do you see that? Do you see that last sentence? A. Sorry, 35? Q. Yes. A. There was no urgency prior to me being made aware that she was in contact with [the Plaintiff]. Q. The next sentence. A. "Therefore leading up to that I was under the belief there was no contact and no association but that was not the case." Q. That must mean, mustn't it, that there was a point where things changed? A. Yes. Q. You can't tell us where and when that was? A. No, I don't know. Q. Then, if you have a look at the next question, "Let me get this right because this is a very important matter going through your mind at the time", do you agree now that this information was a very important matter going through your mind? A. Yes. Q. That no matter what form of contact it was it was an important matter? A. Yes. Q. It was a matter that concerned, with respect, your investigation? A. Yes." [118]
Detective Chaplin acknowledged the significance of any contact in the following exchange:- "Q. Just so that I've got this right, and you tell me if I've got it wrong, what you're now telling his Honour is that at some time before a charge that you can't now remember, [R] told you something which led you to understand there was some form of contact still on foot; correct? A. Yes. Q. You didn't know whether it was face to face or by some other means only? A. Yes. Q. What she told you alarmed you so much that you had to change the course of the investigation you'd been conducting. You had to speed it up in a sense? A. It made me change the direction of the investigation. Q. Speed it up as you said? A. Yes. Q. Because you were concerned she might spill the beans? A. No. Q. Why would it be necessary to speed it up if she had just said to you, what might have been, "I'm in some kind of telephone contact with him"? A. Because if the alleged victim and [the complainant], if there was any contact made possible through third party, if he'd go to the house, anything like that, that's going to be a concern. Q. But the evidence that you had was that there hadn't been any kind of association between [the complainant] and [the Plaintiff] for over two years? A. That's correct. Q. Notwithstanding, as you've told us, that not only was there contact between this lady and [the Plaintiff] earlier before the complaint came forward, but sexual relationship; correct? A. Yes. Q. There still hadn't been any contact between them for all that time. Why would you suddenly have this urgent appreciation of some fear of contact? A. Why would I have a fear of contact? She was in a relationship, or whatever the basis of their relationship was, prior to the complaint and after his release, that information was brought to my attention, it made me consider having to change the direction of pace of the investigation because I found out that there was still contact between the two families. If there was no contact and [the Plaintiff] had no contact with [R] whatsoever then there's not that urgency there. Q. The contact of whatever form, was a matter of concern with respect to your investigation? A. Yes. Q. And was a matter, you say, that caused you to accelerate its progress? A. Yes." [119]
Referring to his earlier answers, he accepted that he changed the way in which he decided to undertake the investigation as he was responding with respect to a sexual relationship that he understood had finished sometime prior to January 2012 (when the complaint was made). [120]
Detective Chaplin's attention was then specifically drawn to his earlier evidence. [121] Detective Chaplin denied that he was telling the Court that as at May 2012, there was a casual relationship of a sexual nature involving the Plaintiff and R. [122] He was then asked to explain the answers he had earlier given [123] and stated:- "That information is in relation to an application for the affidavit for the surveillance device warrant. It's that simple" [124]
Detective Chaplin was then pressed by counsel for the Plaintiff and the following exchange appears:- "Q. It's straightforward as his Honour says. You were telling the Court on 22 October 2015 that you belief in May 2012 was that [the Plaintiff] and [R] were then in a sexual relationship, that's what you were saying; isn't it? A. I've never been of that belief. Q. Is that what you said in the two pages of evidence that I've shown you? A. That's what it reads in this transcript but I've never been under that, I'm not sure why I would have said that at that time but I've never been aware of them being in a sexual relationship. Q. If you said that that may have been false; is that right? A. It may have been incorrect. It may have been a mistake but I've never been of that belief." [125]
Detective Chaplin's attention was again taken to the contents of the transcript of 22 October 2015. [126] The following exchange appears: "Q. There's no ambiguity there whatsoever, is there? You are telling us on 22 October 2015 that as at May 2012 your understanding and from what [R] has told you was that she and [the Plaintiff] were then in a sexual relationship? A. Yes. Q. That is totally different to what you have told us here this week about your understanding of what is going on; isn't it? A. Yes. Q. How do you reconcile the difference, sir? A. The difference is in relation to how I would produce the affidavit. The affidavit we put in there that she was in a sexual relationship with him and that's why I've made application for that affidavit, so there's obviously confusion between when you're asking me what I knew and what I was putting in a disclosure in the affidavit." [127]
I find this difficult to understand.

[13]

Drafting surveillance device warrant

The purpose of obtaining the surveillance warrant was outlined in the following parts of Detective Chaplin's evidence:- "Because the brief light (sic). There was very little material to gather. It was a historic matter. I went through and tried to cover off on as many things as I possibly could in order to prepare the brief." [128] "To secure any possible evidence that may be obtained through our conversation that was recorded lawfully." [129] "The fact that it was lacking any forensic evidence or any witnesses to it that's the standard practice in these situations where we will try and make contact to try and get any admission or further evidence from the accused person for the offence." [130]
Detective Chaplin denied that the brief was "light" because he had been "light" on activities before arrest and charge. [131]
He acknowledged that where there was a historic statement, it was important to investigate the topics that were able to be investigated contained within the statement. [132] When asked whether he did any of these things, he stated:- "I'm trying to answer your question sir, the answer is yes, and the reason is I had many meetings with [R] during times where I asked her various questions about schools or home addresses, things like that." [133]
On 25 April 2012, Detective Chaplin prepared a draft affidavit in support of an application to be made in the NSW Supreme Court on the issue of the surveillance device warrant. [134] Further contact was made by Detective Chaplin with R on 1 May 2012 [135] and 16 May 2012. [136] On 17 May 2012, Detective Chaplin completed a request for assistance to the Covert Applications Unit for a surveillance device warrant. [137] The draft notice for the issue of the surveillance device warrant was completed and forwarded to the Crime Manager on 17 May 2012. [138] On 18 May 2012, changes were made to the affidavit [139] but Detective Chaplin was not able to identify them. [140]
The affidavit in support of the application was sworn on 1 June 2012 [141] and the surveillance device warrant was issued the same day. [142]
Detective Chaplin's evidence was that a ninety day warrant was sought for the surveillance device warrant to allow for the option of numerous calls over an extended period of time and to allow for any change in investigation strategies should any further information be obtained during the calls made. Detective Chaplin denied that the reference in his affidavit to the investigation being "protracted" was because he needed a lot more information that he already had. [143] Detective Chaplin denied that whatever he did on 6 June 2012 was done in the context where he decided the day before, including the arrest and charging of the Plaintiff. [144] He clarified this by adding:- "I'm saying that on 6 June the only thing that changed was the fact that the interface was unsuccessful and therefore moved onto the arrest phase. If there had been a successful interface it would have progressed further forward for another call or it would have progressed further forward for another call or it would have been reassessed." [145]

[15]

Detective Chaplin's contact with R

Detective Chaplin's evidence was that during the obtaining of the Complainant's statement and prior to the Plaintiff's arrest he was told by R that, contrary to information supplied by the Complainant, the Plaintiff's penis was in fact not circumcised - that would have during the period between the 22 January 2012 and 6 June 2012. [153] Although the duty book does not contain details of conversations with R during that time, it does record:- 21 February 2012: "Return office and check workoff and memo's actions outstanding. Contact [R]." [154] 12 March 2012: "Speak [R] re statement." [155] 2 April 2012: "Contact [R] re [Complainant's] statement." [156] 22 April 2012: "Call [R]. Attend [ADDRESS REDACTED] re [Complainant]" [157]
Detective Chaplin stated that he trusted the information given to him by R as she had been in a sexual relationship with the Plaintiff. [158]
The evidence of Detective Chaplin is that he was told face to face by R about the state of the Plaintiff's penis "in the first interview room as you come into Blacktown Police Station." [159] Detective Chaplin said he did not record it at the time because he did not see it as being of great importance to record it right there and then. [160] On 24 October 2012, R is said to have commenced giving a statement to Detective Chaplin. [161] In that statement, R acknowledges that the Complainant supplied a statement to Detective Chaplin and states:- "… I have never read her statement and neither Detective Chaplin nor [the complainant] have ever told me the contents of that statement." [162]
This is not necessarily inconsistent with Detective Chaplin's evidence because it is unclear what questions were put to R relating to the state of the Plaintiff's penis. However Detective Chaplin's duty book reveals that 24 October 2012 was recorded as a rest day. [163] Contrary to this, the statement of R states:- "On the 24th of October, 2012 I read this statement and signed my name at the bottom of each page and recorded the time and date. In February, 2013 Detective Chaplin advised me that he lost the signed copy of my statement and requested I sign another copy of this statement. On the 28th of March, 2013 I again read through this statement and have confirmed that the contents are the same as when I signed this statement on the 24th of October, 2012." [164]
The statement itself was signed on the 28 March 2013. Detective Chaplin conceded that the date at the top of the statement (24 October 2012) was generated from the computer [165] and had nothing to do with whether it was signed or not. [166] He conceded that R could not have come into the station that day, although the day on the statement can be changed. [167] Detective Chaplin conceded that it was more than likely that the only person who could have changed it was himself. He added:- "… I can't tell you what happened with the date. I can tell you that I was on a rest day on 24 October. It doesn't mean that I have had any malice or tried to change it or change anything for any reason to suit myself." [168]
Detective Chaplin was shown the COPS entries in relation to the allegations against the Plaintiff. He conceded that apart from two entries, the rest of the entries were his own. [169] Detective Chaplin's attention was drawn to an entry of 31 August 2012 stating:- "On the 31/8/2012, VIC's mother [R] attended the Blacktown Police Station where he (sic) statement was commenced." [170]
Detective Chaplin conceded that R's statement bearing the date 24 October 2012 is silent as to her commencing to provide a statement on 31 August 2012. [171] He stated that:- "[I]t may have been the case that she's come in and we actually started getting details from her in relation to it and the statement wasn't actually commenced." [172]
Detective Chaplin acknowledged that the statement of R was inconsistent with both the COPS entry and the duty book. [173] However, even on 31 August 2012, the duty book records it as a rest day [174] and no duties are recorded. [175] Detective Chaplin stated that that did not mean he was not the police station if he was on a rest day. [176] He acknowledged that he could not be certain but:- "… I strongly suggest that I was, given the fact that I was going to be away for three weeks." [177] He questioned the advantage of "changing these dates or trying to." [178]
It was then put to him that the only entries about obtaining a statement from R were made on 28 March 2013, which was the date of her statement. [179] Detective Chaplin responded by saying:- "If there is no other entry, there is no other entry." [180]
Detective Chaplin's attention was then drawn to the index to the brief to the ODPP which was noted to be current as of 12 March 2013. It noted in Item 7 that the statement of R was "Awaiting." [181] Detective Chaplin stated that the fact that the index said "Awaiting" did not mean that he had not obtained the statement beforehand. [182] He conceded that any statement he had would have been on the computer, but said that it would not have been normal practice to supply the ODPP with an electronic copy that was unsigned. [183] Detective Chaplin's attention was then drawn to a letter dated 21 March 2013 to Mr Peter Naughtin, barrister, which referenced an attachment to an unsigned statement of R. [184] He stated that he did not recall sending an unsigned statement to the ODPP as at that date. [185]
Detective Chaplin acknowledged that the circumstances of his obtaining a statement from R were unsatisfactory and that he could have kept better notes and cannot explain the inconsistencies in dates. [186] Detective Chaplin also acknowledged that obtaining a statement from R could have allowed the testing of factual matters put forward to see if they were confirmed or contradicted. [187] In particular, it was put that such things like the dates of school, changes of address, house layout, changes in patterns of behaviour, leaving the child alone, whether or not you could hear things in one part of the house as against another part of the house could have been confirmed. [188]
In cross-examination Detective Chaplin stated that he did not obtain a statement prior to charge as R, because she was:- "was emotionally unstable" [189] " And "The [sic] spending any time with R during that time was extremely difficult. She was highly emotional the whole way throughout its and I think I believe I mentioned back in October that she was completely irrational right throughout that time so. [190]
Detective Chaplin's stated:- "The ideal world I wanted her statement beforehand (sic). When I was talking to her, when I was engaging her, she would breakdown continually. Information was limited as to what I could get from her. Her big concern was that [the complainant] never knew that she was still in a relationship with Mr [the Plaintiff]." [191]
The Plaintiff's evidence provided some support as to her emotional state. [192]
There were other difficulties in getting the statement signed. [193] Nevertheless Detective Chaplin acknowledged that the statement ultimately obtained from R did not contain the following:- 1. R's knowledge of the Plaintiff's penis being uncircumcised; 2. The fact of the disclosure by R to Detective Chaplin; 3. The fact of any ongoing relationship between R and the Plaintiff, between January and June 2012; and 4. The fact that Detective Chaplin could not be provided with a statement between January and June 2012 because R was unwell or unstable. [194]
Detective Chaplin explained the reasons for this as follows:- "As I explained, at the time I did not feel the need. I can only act on the information I had at that time and what I believed to be important and relevant statistic (sic). I am not saying it was not relevant but at the time I did not feel the need to make excessive notes in relation to what she was telling me. I had full intentions of obtaining a statement from her at a later date which would have gone in to give clarifying questions in relation to things. The circumcision, as I explained before, he either is or isn't. The defence would have known that the minute the charges were laid and the statement was served." [195]

[17]

Arrest

Senior Constable Scott-Mahjet was sent out by Detective Chaplin to arrest the Plaintiff with another officer in the early afternoon of 6 June 2012. [203] As it turns out, Detective Scott-Mahjet was interrupted by the need to attend to a Commonwealth Bank in Seven Hills regarding an armed robbery. [204] Senior Constable Scott-Mahjet stated that he did so at around 2:45 - 3:00pm. [205] The Plaintiff was arrested later that day at 6:35pm. [206]
Detective Chaplin's original plan may explain why Senior Constable Scott-Mahjet had been sent to the Plaintiff's house earlier without Detective Chaplin although the interface was not to take place until later that afternoon. However the true circumstances of that call out are not able to be established on the evidence. In any event they do not assume any significance as no arrest was effected until later when both Senior Constable Scott-Mahjet and Detective Chaplin attended the Plaintiff's home.
Detective Chaplin denied that whatever he did on 6 June 2012, he had already decided to charge the Plaintiff at the time of arrest. The transcript records the following exchange:- "Q. See, I will come back to precisely what words you used tomorrow but this morning you said that you went and arrested him as you had identified offences committed on [the complainant] by [the Plaintiff]. A. Yes. Q. You arrested him for the purpose of charging him, not for the purpose of questioning him, didn't you? A. Yes. Q. Therefore you had made a decision to charge him, hadn't you? A. No. Q. As to what you were going to charge him with you may not have made a decision, but you had made a decision to charge him, hadn't you? A. No. [the Plaintiff] could have told me anything during that interview, anything to negate what happened. If there was something there that I felt that was a reasonable excuse not to charge, he wouldn't have been charged." [207] In further in cross-examination, the following exchange is recorded:- "Q. What function, does this man's denials providing whatever factual information he was able in response to your questions, have in the overall process if you say you, at the end of that interview, think it's appropriate to invoke the criminal process? A. On that day, at the conclusion of that interview, I was of the belief that I should proceed with it based on the information I had at hand. Q. That means you had that belief before the visit to his home? A. No. Q. Nothing happened after you visited his home, took him back to the police station and spoke to him, that would have solidified your belief surely? A. Nothing happened, no. Q. A lot happened that would have brought into the question of your belief, surely? A. No. Q. You didn't have any regard to his denials; is that what you're saying? A. Of course, all were considered. Q. That's a circumstance you didn't have before you spoke to him at his home; isn't it? A. I didn't consider that he was definitely going to be charged with the matters prior to the interview, so of course, all the information provided in his ERISP was considered, all of it." [208]
Detective Chaplin's evidence that he did not intend to charge the Plaintiff at the time of arrest was consistent with the information that Senior Constable Scott-Mahjet appears to have received. Detective Scott-Mahjet's evidence was as follows:- "Q. When did Detective Chaplin speak to you for the first time about charging? A. After the interview. Q. So you were not spoken to by him at all about the question of laying charges until after the interview; is that right? A. I can't be certain of that, but I know after the interview we spoke Q. I don't want to know what was said at the moment. I just want to know when was the first time you had any discussion with Detective Chaplin about the topic of laying criminal process against this man? A. I'd be guessing. I'd be guessing, sir. It's the same as before, I don't recall I don't recall exactly. Q. He didn't say to you before you went out with him to arrest this man that he'd decided to charge him? A. No. Q. Mm? A. No. Not that Q. Did he tell you why he was arresting him then? A. Because of the alleged sexual assault. Q. Isn't that the charges? A. I'm confused. Q. He didn't say, "I'm arresting him so I can find out what he's got to say about what happened."? A. That would be improper. Q. Correct? A. That would be improper to arrest for an interview Q. Did he tell you then why he was arresting? A. Because he's got a credible a victim of an alleged sexual assault who has, he believes to be, a credible - credible, therefore, there's sufficient grounds to arrest. That's - I don't know - I'm only guessing to say that he it's only a natural course of conversation. What's involved in the allegation and he would have explained that this occurred, that this occurred. I can't remember the exact what he said to me about that, but it is just a natural flow of conversation, what's in the sexual assault, what's alleged to have happened, but - -" [209]
Following arrest the Plaintiff was taken to Merrylands Police Station.

[18]

Merrylands Police Station

The Plaintiff asserted that whilst at Merrylands Police Station, Detective Chaplin sought confirmation as to the state of his penis by visual inspection. The Plaintiff's description as to what happened is set out in the following exchange:- "Q. When you say, "they" are we still with Detective Chaplin and Detective Scott Majhet? A. Scott Majhet, yep. They said they just wanted to do a quick strip search. Q. When you say, "they" both of them or one of them? A. Well, Scott Majhet was standing in front, and Troy Chaplin was on his side. Q. Who was speaking to you about a search? A. Scott Majhet. Q. You've described this room that you went into? A. Yep. Q. What happened once you were in the room, and after they'd said something to you about search? A. Yep. They said they just had to give me a quick strip search just to make sure I didn't have any weapons on me. They asked me to lift my T shirt, so I lifted my T shirt up. They asked me to unbutton my pants I just put them down to about my knees. Then they asked me to put my underwear down to about my knees, and it happened all very quickly they go, "Yep, that's fine." They just said, "Get dressed." Q. You'd pulled down your pants, and your underwear? A. Yep to about my knees. Q. And lifted up your T shirt? A. Yep, that's correct. Q. Do you recall looking at the police officers looking at you? A. Yep. Q. What area were they looking at? A. It looked like they were just looking straight at me and, like, down to my underwear region. Q. When you say the "underwear region"? A. Well, I had my pants sort of down to just looking at me. Q. Were they looking at your genitalia? A. Yes. Q. To your observation? A. Yeah, to my observation. Like I said, they probably gave me a quick look, yeah. Q. How long did this process of going into this room A. Just very quickly it just looked like just a couple of minutes it all happened very - very quickly before the interview." [210]
In cross-examination, the Plaintiff was asked to give details in relation to the room in which he was said to have been searched. [211] He was unable to give any details beyond describing the room as a little storage room that was "small" [212] and "it looked like there was [sic] folders around - and just general things." [213] He described the room as having lights on but they were not bright. [214] The Plaintiff described having a "strip search" to make sure that he did not have any weapons on him. [215] He was then cross-examined in relation to the basis for any search to be conducted, bearing in mind the fact that he had no history with the possession of weapons, was compliant at the time of his arrest, and had a pat-down search before he was placed in the vehicle. [216] The Plaintiff described the search as having been conducted "reasonably quickly" [217] and that the officers did not conduct a microscopic examination of his penis. [218]
In support of his claim of being strip searched, the Plaintiff called his brother. He gave evidence of visiting the Plaintiff at Silverwater Prison at the end of 2011. [219] In relation to this meeting, the Plaintiff's brother's evidence in chief was as follows:- "Q. Did you ask him any questions about what had happened in terms of being arrested? A. Yes, I did. Q. What did you ask him about what had happened to him in terms of his arrest? A. After asking him why do you think she did it and just him going into some sort of conversation about that, as a brother I jokingly asked "You know, did they strip search you?" He made a clear point of Q. Stopping there. You asked him when you say, "did they", who were they? A. Just I just generalised. Q. Did you get a response from your brother? A. I did. Q. As best you can, what were the words he said to you to you? A. I can remember him saying "I got strip searched at Merrylands. I got strip searched at Fairfield. I get strip searched everywhere I go."" [220]
The Plaintiff's brother maintained this account in cross-examination. [221]
The Plaintiff asserted that there was a 45 minute gap between the time he was placed in the dock and the time that he went to be interviewed in the ERISP room. The custody records were tendered in evidence. [222] They reveal the following:- Time Synopsis 6:35 pm Arrested at 10 Rainbow Street, South Wentworthville and conveyed to Merrylands Police Station [223] 6:45 pm Arrived at Merrylands Police Station and placed in dock [224] 6:47 pm Personal details of the Plaintiff are entered in Custody Management Records [225] 6:51 pm Recording of caution and summary under Part 9 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) [226] 6:55 pm Sergeant Karl Day records that he informed the Plaintiff of the information contained in the "Caution and Summary of Part 9 of the Law Enforcement (Powers & Responsibilities) Act 2002" [227] 6:56 pm Sergeant Karl Day enters response to visual assessment of the Plaintiff 7:20 pm Plaintiff taken to the ERISP room for interview [228] 7:37 pm Entry of the Plaintiff being taken to ERISP room recorded by Sergeant Day [229] 9:05 pm Plaintiff returned to dock after interview [230] 9:10 pm Plaintiff return to dock recorded and entered by Sergeant Day [231]

[19]

The fact of the interview commencing at 7:20 pm was also stated during the interview by Detective Chaplin. [232]
Detective Scott-Mahjet stated that he could not recall whether at Merrylands Police Station, the Plaintiff was searched. [233] He gave evidence of what a strip-search involved [234] before stating that there were no circumstances on the day in question which led to a strip search of the Plaintiff. [235]
Detective Scott-Mahjet was asked what happened at the police station and he stated:- "Q. Do you remember what happened when you got to the police station? A. I remember that I stayed with him, with [the Plaintiff], in the charge room, that is. Q. In the charge room. Do you remember him getting to the charge room when you got to the police station? A. No. Q. You don't remember what happened getting from the car to eventually you being in the charge room with him? A. No. Nothing out of the ordinary. It was just a - - Q. Whether it be in or out of the ordinary, you remember nothing at all about it; is that right? A. Sir, if something was out of the ordinary, then I suggest I'd remembered it, because Q. But the point is you remember nothing one way or the other, do you? A. I wouldn't say nothing. Q. What is it that you do remember about events then? A. I remember that it was an every day arrest and that there was nothing to to [sic] leave an impression on my mind that it was out of the ordinary, which means everything - - everything ran smoothly. There was no issues [sic] I remember that Mr - that Detective Chaplin and I and [the Plaintiff] had an excellent rapport. There was no issues [sic]. There was no aggression either way with us. There was no there was no issues. It was we were respectful to each other and we did our job and [the Plaintiff] complied with no issue." [236]
It was put to Detective Scott-Mahjet that the records showed that the Plaintiff was placed in the dock at 6:45 pm for 45 minutes before the interview at about 7:30 pm. [237] However, Detective Scott-Mahjet accepted that he could not recall what took place during the 45 minutes in question. [238] In cross-examination the following exchange occurred:- "Q. You can't say where he was or what happened, can you? A. I can say that I know that in this particular circumstance I remained with [the Plaintiff], within close proximity to [the Plaintiff]. Q. You don't say that in your statement, do you? In your duty book? A. No. Q. You haven't written that down anywhere, have you? A. No, but I am certain of it, absolutely certain. Q. We have just got no written record about what you were doing in that 45 minutes, have we? A. No. I can explain how I arrive at that certainty, if you like but there is nothing written about it. I do recall remaining with [the Plaintiff] until the ERISP interview Q. But you can't tell us whether he went in the dock or out of the dock or what, can you? A. No, he is either in the dock or he is standing at the opposite side of the counter or he is sitting down at the dock with the dock door open. I know I was remaining with him in the charge room. Q. But you can't tell us anything about it, or whether he went into a room for a few minutes, you just can't tell us, can you? A. I can tell you that I remained with him. Q. Why? A. Why? On the detectives course that Detective Chaplin and I had just completed one of the senior investigators spoke of maintaining rapport with the suspects. To do that it is basically to remain with them throughout the investigative process. I specifically remember on this incident that Detective Chaplin and I spoke to it because we were on the detectives course together and that is when we said, "Okay, we will give that a go. It will most likely increase the chance of keeping [the Plaintiff] satisfied as much as can be whilst in custody and increase the chance of him participating in an interview." [239]
Further in the exchange, the transcript records the following:- "Q. Constable, what was the purpose of this 45 minutes you were trying to establish a rapport with [the Plaintiff]? A. The time frame has no bearing on the establishing of a rapport. It is more the case it depends on the availability of the custody sergeant. Sometimes you will go to a police station, whether it is your own police station you work at or a neighbouring station and there is no one there to accept them into custody. So we fill out the forms, you know this is what the person had in their possession, this is what they are under arrest for and then we wait for the custody sergeant to come down to speak to the person, to advise them of their rights and ask them about their medical conditions if they are suffering any, all those that is all a set standard. All I can Q. You recall were you waiting for the custody sergeant in this case? A. It is possible. I can't be certain. There is also a chance the custody sergeant was there and waiting and I was waiting for Detective Chaplin to prepare some paperwork, I don't know. CAMPBELL Q. What you are saying is this rapport process is something you follow more so when they are going through the introduction to custody process and having to fill out forms and tick and cross boxes, is that right? A. Yes. Q. Once that is finished your role in that respect becomes less? A. Up until the interview then that's my adopted procedure I do now. Q. Between the finishing of the custody process and the start of the ERISP, the need for you to sit there and be his next friend, as it were, is not so important, is it? A. That's the path I chose on that day." [240]
Further in cross-examination, the following is recorded:- "Q. What you can say is there was no strip search of the kind undertaken that you associate with the putting on of a glove and all that sort of thing; that's the position, isn't it? You're satisfied that type of search did not take place, aren't you? A. Yes. Q. As to what other things took place, can I suggest to you, you really have no idea? A. I can't I can't necessarily agree with that. Q. Yes, but you didn't disagree with it, can you? A. Well, I think it's inferring that the evidence I've given to this Court today is somewhat untruthful or whatnot and Q. No, you've said you can't recall about whether or not any kind of a search took place of [the Plaintff]; that's correct, isn't it? A. Can you repeat that? Q. Your answer before lunch was you can't recall whether any kind of a personal search of [the Plaintff] took place? A. Are we talking at the police station - - Q. Yes? A. - - or at the scene? At the police station, correct, yes. I can't recall if he was searched or if he wasn't searched. Q. All you can say is that there wasn't this full on glove type search that I know has only happened with me on a fairly few limited occasions? A. Correct." [241]

[20]

Interview

The Plaintiff participated in a recorded interview with Detective Chaplin and Senior Constable Scott-Mahjet at 7:20pm [242] and finished at 9:10pm. [243]
It is not in issue that despite a lengthy interview with the Plaintiff and Detective Chaplin and Senior Constable Scott-Mahjet the Complainant's assertion as to circumcision was not was not put to him.
In the course of the interview the following exchange occurred:- "Q686: I mean - - - A: No, no, I mean if she's accusing of seeing me [sic] with no clothes on, I'd like her to be able to describe how I actually genuinely look with no sort of clothes on, you know. Q687: Physically look? A: Yeah. Q688: OK. A: Because, like, to me I'm really, this is sickening. Q689: Yeah. A: You know, and to me just be able to see this kind of [sic], you know, if she can come up with this kind of crap - - - Q690: [20:25] Uh-huh. A: - - - than [sic] I really hope that she can sort of back it. Q691: Yeah. A: You know, I genuinely really, really do. Q692: OK. A: You know, I want youse [sic] to test her, to do whatever has to, I mean, I don't, I don't really want her to go through this kind of stuff - - - Q693: Uh-huh. A: - - - but, you know, I, I can't believe where this is coming from. I really have got no idea. I'm, I'm, I'm appalled. I dunno [sic] what to say." [244]
Thereafter the state of the Plaintiff's pubic hair was the subject of questioning. The exchange was as follows:- "Q696: Well, in relation to the description, she says that when you put your penis in her mouth that, that you actually had a lot of hair around your penis and it was right up in her face. A: Yeah. No. Q697: All right. A: No. Q698: Do you ever shave your, your, your pubic hairs? A: Yeah. Not right down - - - Q699: Yeah, yeah. A: - - - but yeah, I do sort of usually, yeah. Q700: [20:25] OK. A: Yeah. Q701: So she's gone into a little bit of description there - - - A: Yeah. Q702: - - - explaining about - - - A: Yeah. Q703: - - - like that. So what do you think about that? A: Well, I think she's wrong. Q704: Yeah. A: I mean, I do sort of trim it down, as her mother would probably know. Q705: Yeah. A: So, yeah." [245]

[21]

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (42 paragraphs)

Parties

Legislation Cited (6)

Cases Cited (34)

Cited By (1)