Giannasca v The Queen (No 2) - [2011] NSWSC 1681

Supreme Court

New South Wales

Medium Neutral Citation: Giannasca v R (No 2) [2011] NSWSC 1681
Hearing dates: 11 April 2011, 12 April 2011, 13 April 2011, 14 April 2011, 15 April 2011, 18 April 2011, 20 April 2011, 21 April 2011
Decision date: 06 May 2011
Jurisdiction: Common Law - Criminal
Before: Price J
Decision:
The notice of motion is dismissed

Catchwords: EVIDENCE - admissibility - s 138 of the Evidence Act 1995 - evidence obtained improperly or in consequence of an impropriety
CRIMINAL LAW - permanent stay of proceedings
Legislation Cited: Children (Criminal Proceedings) Act 1986
Crimes Act 1900
Criminal Procedure Act 1986
Evidence Act 1995
Cases Cited: Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222
Dupas v The Queen [2010] HCA 20
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619
Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177
Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 227 ALR 353
R v Cook [2004] NSWCCA 52
R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82
R v Coulstock (1998) 99 A Crim R 143
R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169
R v Frangulis [2006] NSWCA 363
R v Glennon [1992] HCA 16; (1992) 173 CLR 592
R v JG [2009] NSWSC 1053
R v McKeough [2003] NSWCCA 385
R v Patsalis & Spathis [No 3] [1999] NSWSC 718
R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Category: Procedural and other rulings
Parties: John Charles Giannasca
Crown
Representation: D G Dalton SC with P J Pearsall (Accused)
P E Barrett (Crown)
Legal Aid NSW (Accused)
Director of Public Prosecutions (Crown)

File Number(s): 2009/779

Judgment

The accused (JG) pleads not guilty to the charge that he, on or about 12 January 2002, at Gladesville or elsewhere in the State of New South Wales, did murder his wife (CG).

At a pre-trial mention before me, it was indicated by counsel that a voir dire hearing was required before a jury was empanelled. A notice of motion was subsequently filed, whereby the accused seeks the following orders:

1. The evidence of CV commencing with her interview by police on 7 January 2003 and thereafter should be excluded pursuant to s 138 Evidence Act 1995; and/or

2. The proceedings the subject of the indictment should be permanently stayed.

Both counsel have informed me that however I should determine the motion, the unsuccessful party will appeal to the Court of Criminal Appeal. The Crown's indication of an intention to appeal is subject to instructions, but given the history of the proceedings, it is likely that such instructions would be forthcoming. It is for this reason that the empanelling of the jury has been further postponed. Mr D Dalton SC with Mr P Pearsall appeared for the accused and Mr P Barrett for the Crown.

The application pursuant to s 138 Evidence Act 1995 primarily concerns two interviews conducted by police in January 2003 with CV, the daughter of CG. She was 9 years old at the time her mother disappeared and 10 years old when these interviews were conducted.

It is the Crown's intention that CV gives her evidence in chief by playing to the jury the audio-visual recordings of the interviews conducted on 7 January 2003 (the first interview) and 10 January 2003 (the second interview). As CV was less than 16 years old at the time, she is entitled to give her evidence in chief in the form of the recordings, even though she is no longer a child: s 306U(2) Criminal Procedure Act 1986. Section 306U is, however, subject to s 306Y which enables the court to order that CV's evidence not be given by means of a recording if it is satisfied that "it is not in the interests of justice" for her evidence to be given in that form. No application has been made by the accused that it is contrary to the interests of justice that CV's evidence in chief be given by means of the recording and the application for the exclusion of CV's evidence is confined to the s 138 Evidence Act argument.

CV was further interviewed on 7 August 2003 (the third interview), which was videotaped. She was subjected to sessions of hypnosis on 3 October 2003 and 20 October 2003, which were video recorded. The focus of the present application, under s 138 as I have indicated, is not upon the third interview and the two hypnosis sessions but upon the first and second interviews. The video recordings of these interviews were played during the hearing before me. CV was not called to give evidence on the voir dire.

I mention here that the accused's trial was listed before Buddin J in August 2009. Before the empanelment of the jury, objection was taken "to the entirety of the evidence" of CV. Without detailing the argument made during the voir dire that was conducted, his Honour upheld the accused's objection: R v JG [2009] NSWSC 1053. The Crown appealed against the ruling and the appeal was upheld (Basten JA and RS Hulme J allowing the appeal, Schmidt J dissenting): Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222.

Although the body of the evidence which was the subject of the Court of Criminal Appeal's decision is the same evidence that is now the subject of the present motion, no ground of appeal founded upon s 138 Evidence Act was advanced in the Court of Criminal Appeal and the application of that section was not considered. The Crown appeal was devoted to the correct principles to be applied to post-hypnotic evidence and the application of s 137 Evidence Act . It appears that the accused raised in written submissions before Buddin J an argument founded upon s 138, but his Honour did not determine this issue.

The accused invited me to return the matter to Buddin J but the adoption of that course would unnecessarily involve further delay and was not, in my opinion, in the interests of justice. As I have previously said, it is a pity that application was neither made to Latham J (the Criminal List Judge) during the mentions before her Honour nor the mention before me. Neither of the parties submits, however, that there is any bar to my hearing the present motion.

I also note that no application was made before Buddin J for a permanent stay and this issue was not considered upon appeal.

Matters of evidence

It is unnecessary to repeat here the facts and events that gave rise to the accused being charged with murder. Those facts were carefully detailed by Buddin J: see R v JG particularly at [1] - [33]. It is sufficient to record that CV was born in September 1992. Her parents, CG and SV, married in early 1992 but separated in about 1994. The accused and CG married in June 2000. It is the Crown case that the accused murdered his wife on about 12 January 2002. Her body has never been found but as Buddin J observed at [1] "there is other evidence available which leads to the seemingly irresistible conclusion that she is no longer alive".

The Crown submits that the answers given by CV during the two January interviews are relevant to the issue whether the accused had a motive or reason to kill his wife. During the interviews CV revealed that the accused's father had been sexually assaulting her. The circumstantial case against the accused includes his serious financial difficulties, which required him to move into his parents' home, that CV told her mother and the accused that she had been molested by the accused's father, AG, that this conversation took place on the night that CG disappeared and an argument followed between the accused and his wife.

It is the Crown case that CG was very protective of her daughter, CV, particularly in light of the fact that an uncle who resided in Queensland was alleged to have sexually assaulted CV when she was 6 years old. Uncle N was tried before a jury and convicted after the allegations against him were reported to police. Upon appeal, the conviction was quashed and a new trial ordered. As CG did not want her daughter to testify again, the matter did not proceed further.

The evidence is not only relevant to motive, but as Basten JA observed at [116] in Director of Public Prosecutions (NSW) v JG , it "would also have rendered implausible the alternative explanation of the disappearance of the deceased on that night, namely, that she voluntarily packed her bags and left the house without her daughter".

Before proceeding further, I propose to refer to some of the oral evidence in a summarised way that was received on the voir dire before me. I do not provide a complete recitation of the evidence but should state that I have had regard to the whole of it in determining the issues that have arisen on the motion.

Detectives MacDonald and MacLeod spoke to CV at her school in Putney on 13 February 2002. The accused was present at the time. The police officers were investigating the disappearance of CG. Detective MacDonald described the conversation as being "a chat with a young girl to see...if she could tell us anything which could lead us further": T177.6-7. Detective MacLeod agreed that it was a brief chat to establish if CV could provide anything of assistance: T216.42. He created an "investigator's note" which recorded that "[CV] stated she had no real recollection of the last time she saw her mother, except that it was during the school holidays. She could not recall anything of significance": ex D.

Detective MacDonald gave evidence that the investigation team suspected that the accused, then a person of interest, could have coached CV to deliberately withhold information from police. He said that she was reluctant to give information and it was a possibility that she had been coached. Detective MacLeod agreed that whilst speaking to CV, he had formed the impression that she was apprehensive about speaking to police and he did not think that she was in a position to speak freely. He did not know how much she did or did not know but was concerned about the possibility that she had been coached and had not been revealing all that she knew. On this topic, his testimony included the following (T222.35-39):

"A. ... I believe that she was coached. When I say coached, I should elaborate. She was in very close proximity to JG. There was a lot of eye contact reassurance as to she was saying, "Was that the right sort of thing, dad?" There was body language, which gave me that impression. I wouldn't say she was being untruthful, I just believe she was coached."

On 22 October 2002, Detective MacLeod contacted Detective Sergeant Crawford of the Chatswood office of the Joint Investigative Response Team (JIRT) to seek assistance in interviewing CV (ex E). A briefing note was forwarded to JIRT as well as a brief outline of an interview plan. Detective MacDonald identified the document entitled Interview Plan for CV (ex 4) as the typed page he gave to the JIRT office prior to the interview. Some of the proposed questions on the Interview Plan were directed at the relationship between the accused and CG and included "what has dad told you about where mum is?" Another question was directed at the "relationship with SV (natural father). Did she see him before mum went missing?"

Permission was obtained from SV, the father of CV, on 11 December 2002 for his daughter to be interviewed and the interview was subsequently arranged to take place at the JIRT office in Chatswood.

The first interview was conducted at the JIRT office at Chatswood by Mark Wilson, a plain-clothes police officer, who was a member of JIRT. He had had over three years experience in roles, which involved interviewing children. During his evidence he explained that JIRT was a team made up partly by police officers and Department of Community Services (DOCS) case workers who "were charged with investigating matters in relation to the sexual abuse of children, the serious physical abuse of children and any children at risk of serious neglect": T30.46-48. He recalled that he had become involved in the interview as only JIRT officers were trained in interviewing children "so any time there might be a child who might have witnessed an event that might not necessarily bring them under a JIRT assessment, we would receive a request from the Detective Office [sic] to interview the children for investigating police": T32.22-25.

Both the accused and SV had accompanied CV to the JIRT office. Mr Wilson conducted the interview with CV that was video recorded. Detective Senior Constable Hayley Clark, a member of JIRT whose role was to monitor the interview, was in a separate room with Detectives MacLeod and MacDonald. Both JIRT officers recalled speaking to the detectives before the interview commenced. Detective MacDonald testified that he had told the JIRT officers before the interview started something along the lines that "whilst they're interviewing her, ...try and canvas the fact with her if she has been told what to say, and if her answers appear that she has been coached, to explore that further": T177.32-35. Mr Wilson had no recollection of anybody telling him whether or not CV had been coached: T72.35-36. He had seen the Interview Plan and recognised his handwriting upon the document. It was Detective Clark's recollection that the information that they had was very limited, that CV's mother had gone missing, they were to interview CV in relation to the information that she had and the only version she had been given was from the accused:

T139.7-9. She did not recall the detectives saying to her that they considered CV had been coached to withhold important information: T141.36-38.

Mr Wilson had met with CV, her father SV and the accused before the interview commenced. He had no recollection of the specifics of the conversation but it was his practice to introduce himself and the person who was working the video and audio equipment, to the child and to the parent and guardian. He might then have a discussion with them or with the guardian separately and talk to them about how the interview was to take place. He would show them the interview room and the room where the other officer was. He could also have had a discussion with them about the length of time the interview would take. He would also have spoken about consent [being given] for the child to be interviewed: T37.22-40.

It is evident from the questions and answers in the first interview that Mr Wilson had spoken to CV prior to its commencement. He had shown her the interview room and the room from where the interview was to be monitored which included four television screens. He had also spoken to SV. He had explained to the child that Detective Clark was monitoring what was being said and could speak to him by the use of his earpiece during the interview. Mr Wilson told her that she could take a break at any time and explored with CV her understanding of telling the truth. He informed her that if she was asked a question to which she knew the answer but did not want to talk about, it was important that she told him. They would "talk about...the ways in which it might be easier for her to talk about it": (Q 84).

The child was not told that she was not obliged to answer questions, that she was entitled to obtain legal advice, leave at any time or have a support person in the interview room. She was not informed that Detectives MacLeod and MacDonald were in the monitor room with Detective Clark.

An unusual feature of the evidence was that Detective Sean Hampstead told me that he had not been in the monitor room during the first interview, whereas he had given evidence before Buddin J that he was in that room and he was questioned by Mr Buscombe about the conduct of the interview. Detective Hampstead explained that he had been mistaken when that evidence was given but had since checked his duty book and was on annual leave at the time of the first interview. I accept that Detective Hampstead was not in the monitor room when CV was interviewed by Mr Wilson.

At the time of the interview, there were procedures in place (referred to during the voir dire as JIRT protocols and guidelines) for, inter alia, the interviewing of children by members of JIRT. The introduction to the document (ex 5) which details those procedures included the following:

"Joint Investigation Response Teams (JIRTs) reflect the fact that this is a statewide service, whether co-located or not. These procedures aim to assist staff in the delivery of consistent practice across the State.

This document will be used in conjunction with the procedures and policies relevant to each organisation": ex 5 p1.

Under the heading The Investigation Process , the procedures included (ex 5 p 11):

"The child or young person's needs are paramount when determining who takes the lead in an interview, where the interview occurs and how it is recorded.

...

If a child or young person wishes to have a support person present appropriate arrangements should be made."

At page 12 under the heading Investigative Interviews the document, inter alia, stated:

"It is critical the interview is conducted in a way which supports and protects the child or young person. This includes advising the child or young person they can have a person to support them during the interview process.

It is essential to review interview plans and consider the following issues:

Use of non-leading questions, adherence to the rules of evidence and accurate recording of information are best practice.

The continuing safety and wellbeing of the child or young person will be considered."

The document provided Guidelines for the electronic recording of investigative interviews with children. The introduction at page 51 noted:

"1.1 These guidelines are the procedures for the electronic recording of investigative interviews with children conducted by joint investigation staff. An electronic recording that does not strictly comply with the guidelines will not automatically be ruled inadmissible. However, the guidelines should be followed whenever practicable. The reasons for not following the guidelines should be documented.

The best interests and welfare of the child are paramount

1.2 The best interests and welfare of the child must be paramount whenever electronic recording of investigative interviews take place.

...

Training

1.4 Every child is unique and the best interview is that which has considered the child's needs. No interviewer will conduct an electronically recorded investigative interview with a child unless suitable training is undertaken. The interviewer must be conversant with these guidelines.

1.5 Unless otherwise stated, these guidelines apply to all joint investigations."

Under the sub-heading Conducting the Interview at page 52, the guidelines, inter alia, provided:

"3.4 In addition to the normal interview introductions and the requirements of the Justices Act 1902, the following points should be established:

...

Names, occupations and roles of all adults present

...

Include the second interviewer and any other person who may be monitoring the interview in a separate room."

A Code of Practice for Custody, Rights, Investigation, Management and Evidence (CRIME) (ex 6) (the Code) had been published by the New South Wales Commissioner for Police in February 1998 and was in force at the time of the interviews. The Code made provision for persons who voluntarily attended at a police station. At page 45 under the heading People at police station voluntarily , the following appears:

"Treat people who are voluntarily at a station to help with an investigation with no less consideration than those in custody (eg: offer refreshments at appropriate times). They are entitled to obtain legal advice, communicate with anyone outside the station or leave at any time.

Investigating Officer

Where someone, either in your company or by themselves, attends a station voluntarily to help you with inquiries, consider the nature of your inquiries and the likelihood that the person will be arrested. Where this is a possibility, albeit remote, take the person to the custody manager.

Custody manager

Inform the person:

& why they are at the station and they are not under arrest and free to leave

& they may seek legal assistance and can notify someone else they are at the station

& that if the investigating police decide the person is no longer free to leave the investigating police are required to take the person back to the custody manager and advise that officer of the situation."

Mr Wilson said that he was mindful of the JIRT policy document (ex 5) when he carried out the interview and agreed that he would also pay careful attention to any Police Commissioner's Code of Practice and guidelines that related to the interviewing of children.

He gave evidence that it was in the "vast minority of cases" that a support person would be in the interview room with the child. When questioned by Mr Dalton about having a support person in the interview room, he replied (T61.48-50; T62.1-7):

"A. A support person in there can be a distraction to the child. I think I tried to explain that before, that you try to create a one on one environment where the child felt comfortable with you and to answer your question. Sometimes the support person could intervene sometimes in answering questions, which was obviously not something we wanted to happen. We wanted the information to come from the child. Sometimes the child would feel more uncomfortable talking about things in front of a parent or guardian or support person. Sometimes they would look at them for affirmation or permission before answering. Some of these things would make it quite difficult. They would not do it intentionally, just made it a little bit more difficult for us."

Mr Wilson gave evidence that CV was not a person of interest, she was not suspected of anything. He had not seen any need to take steps to provide CV with legal advice or to caution her. She had come to him to be interviewed about her missing mother but it became apparent during the interview that she had an issue with her grandfather of which he had no prior indication. As the conversation developed, he saw CV as a victim. He wanted to find out a bit more about her. When asked by the Crown, why did he do that, Mr Wilson said (T39.8-12):

"A. Again, talking about what the goal of the JIRT team was, the welfare of the child is paramount. Obviously I wanted to see whether or not something had happened to her and whether or not, I guess, if there was any sort of future risk of harm. Having looked at the interview recently, she said she was still living in the house, so that was obviously something that was concerning to me."

In cross-examination he said that if the victim or witness was found during the interview to be someone who had committed an offence, then he would take appropriate precautions to "possibly stop that interview": T46. 43. He agreed that if, objectively, he had a suspicion that the child being interviewed may have committed an offence he would err on the side of caution. When taken by Mr Dalton to the Code, Mr Wilson said that he normally did not tell a child witness that they did not have to talk to somebody. He agreed that a child who attended as a witness should not be accorded any less rights than a person who was suspected of committing a crime or being a victim of crime.

Mr Dalton closely questioned Mr Wilson on the first interview with CV. It was in her answer to Q 177 that she mentioned her grandfather (AG). She had been asked about the last occasion on which she had seen her mother. After recounting what had occurred whilst she and her friend NL had been playing, CV said:

"And then I think after the day she went home and then I, then I, I told my mum something though which I can't remember. And I dunno why she ran away. I just thought it was something that, something about my grandpa or something and she got really angry and like, so then I had to go to bed and the next morning she woke up really early, packed her bags and left."

Mr Wilson testified that CV's answer caused him to think there was something that she knew but did not wish to say.

I do not propose to repeat here the questions and answers that followed (most of which are set out by Buddin J at [30] in R v JG ) but at Q 222, CV was asked:

"So, because I don't know your mum, so I don't know what she was like when she got angry. So what did she do to make you think that she was angry? Is it something about her that looked different about her? Did she say...

A: She, she was calling him names or something like that but...

Q 223 She was calling your grandfather names?

A: Names like, probably like dirty animal or pig or something like that.

Q 224 So she was calling your grandfather...something like a dirty animal or a pig...

A Yeah

Q 224 [sic] ... or something like that. O.K Now what was your dad doing when your mum was angry?

A She called him and he, he came and that's when I told him as well.

Q 225 OK. And do you know what you told your dad?

A Exactly the same as what I told my mum."

Mr Wilson could not say whether he had suspected before this time that CV was blocking something sexual but CV's answer at Q 224 might have gone someway to confirming that an inappropriate sexual relationship or incident had occurred. When asked by Mr Dalton (T80.36-38):

"...you wanted to feel confident that you'd obtained all the information that you considered was available from this young person at that time?"

Mr Wilson responded T80.39-44:

"A. I wanted to determine, obviously there was an incident that had happened. Obviously I wanted to explore what information I could get, okay. Whether or not that was asking open ended questions, whether or not it was asking direct questions or if it came to the point, asking a leading question to find out if something had happened to her, and I mentioned this before, whether or not she was at further risk of harm."

He agreed with the proposition that he was not going to stop until he had obtained all of the information he felt comfortable with. On the topic of cross-examining CV or asking leading questions, Mr Wilson's testimony included the following (T82.29-49):

"Q. What I'm suggesting that you're doing in the course of this interview is cross-examining the young girl?

A. Whether or not you're calling it cross-examining the young girl, I'm conducting an investigative interview of the young girl through a manner of different questioning techniques. Some of the questions are open ended, some of the questions are direct questions.

Q. You agreed with me earlier that you shouldn't ask questions of a leading kind?

A. Only as a last resort. So for example, if I put this example to you, say I'm conducting an interview of a victim who alleges that certain offences have happened to her, it might be that I ask open ended questions, the alleged victim doesn't want to discuss it, I ask direct questions the same. It might be I'll ask a leading question knowing full well at that point there will be no prosecution obviously, in relation to any further police action, but from a risk of harm perspective, maybe the action will be taken by the DOCS case worker who might be involved.

Q. You've determined that you're prepared to risk the evidence being admitted in any prosecution because you're concern becomes the welfare of the child?

A. Yes."

Mr Dalton took Mr Wilson to question 343 and CV's answer which is as follows:

"Q 343 ...Now because you said before you've been telling me you can't remember what your grandfather's been doing, how do you know it's stopping?

A: No, it's just, he doesn't do it anymore because there's people around. Because he mainly, he does it when there's nobody around which I don't know."

Mr Wilson agreed that CV's answer would have heightened his concern, as did her answers to questions 345 and 346 that her grandfather probably did it in the bedroom of the house where she was presently living. Mr Wilson accepted that he had tried to obtain from CV specifics as to the nature of conduct that had taken place with her grandfather but CV would not reveal it. CV's welfare was his paramount concern. He then questioned CV about her relatives. CV made no mention about Uncle N but when asked (Q 355, 356) if she had an Uncle N, replied that he lived in Queensland but she did not want to see him anymore.

The following further questions were asked and answers given:

"Q 357 You don't want to see him anymore? Why don't you want to see Uncle N anymore?

A: Because he's done rude stuff to me.

Q 358 He did rude stuff to you? O.K well we won't talk about that, that's okay. You said rude stuff, is the stuff that you say that Uncle N did to you, was it anything at all like the stuff that your grandfather ... was doing to you?

A: Yeah, whatever is coming back. I've just gotta think.

Q 359 O.K. Well you just take your time and think. There's no rush, there's no hurry.

A: I think I'm starting to think now. I'm starting to remember what he did to me. How what did he do to me.

Q 360 It's O.K. Well you can, you just take your time. You can tell me what you can remember maybe?

A: Well its similar to what N did to me. O.K. Now I'm going to remember. He, well it was worser than he did to Uncle N than Uncle N did actually.

Q 361 And can you tell me what your grandfather did?

A: He did more rude stuff than what Uncle N did."

In his evidence in chief, it was Mr Wilson's recollection that CV had discussed Uncle N with him. During cross-examination he acknowledged that someone else must have provided him with the information about Uncle N but had no recollection of where the information had come from.

Detective MacLeod did not believe that he introduced the subject of Uncle N, whereas Detective MacDonald believed that it was either himself or Detective MacLeod. He said (T192.1-9):

"Q. And you considered, you considered, it reasonable in those circumstances, did you, to use the prompt of Uncle N to perhaps suggest to her via Mr Wilson that the events relating to her grandfather may have been sexual?

A. I didn't want to suggest to her anything, I wanted her to - it appeared to me that she was reluctant to tell us what the incident with her grandfather was, possibly because she was completely embarrassed about it, which is completely reasonable in the circumstances, and that by suggesting that it was a way of her answering it without having to tell the details of exactly what it was."

I conclude on the balance of probabilities that it was Detective MacDonald who asked Mr Wilson, indirectly through Detective Clark, to raise Uncle N with CV in order to obtain the details of what had occurred between the child and her grandfather.

CV was provided with diagrams of a naked man and woman upon which she made various markings to provide details of what she said AG had done to her. Diagrams were used by Mr Wilson to enable CV to talk about parts of the body that might be considered private or rude, without embarrassment. In cross-examination, Mr Wilson's attention was directed at questions and answers 435 and 436 which appear in the following context:

" Q 435 O.K. Can, can you tell me what?

A. Well it's too disgusting but I don't, it also makes

me feel very uncomfortable saying stuff like that.

Q 436 O.K. Well I don't want to make, I don't want it to make you feel uncomfortable. I want to try and make it as comfortable for you as I can, Cassie. Is there any way that I can make it more comfortable for you to talk about?

A. No, no."

Mr Wilson agreed that, notwithstanding that CV had told him that there was nothing he could do to make it more comfortable for her to talk about it, he had pushed on anyway as he was concerned about the child's welfare. Mr Dalton then directed Mr Wilson's attention to questions and answers 440, 447, 454 and 460. Questions and answers 456 to 461 are as follows:

" Q 456 How does he disturb you?

A. It's a little hard to tell 'cause I get really confused with stuff. It's just hard to say.

Q 457 Because you, yes, because you said before it was about, that you mentioned before that your grandpa was doing, was doing something with the girl's rude part?

A Yeah.

Q 458 What was he doing with the girl's rude part?

A Disgusting things.

Q 459 O.K. Disgusting things. O.K. Disgusting things, what do you mean by disgusting?

A Dirty things.

Q 460 Dirty things. O.K. So it was dirty and it was disgusting I think you said. Did your grandfather touch you on your rude part?

A Yes.

Q 461 Yes? O.K. Because you tell me if I've got any of this wrong O.K. Because if I've got it wrong I need to know or if I've got it right I need to know as well. Did, so did a part of his body touch a part of your body?

A Sort of."

Mr Wilson agreed that his questions were becoming more and more direct as he was determined to get to the bottom of the matter regardless of the ramifications for the admissibility of the evidence.

The second interview was conducted at the JIRT office at Chatswood on 10 January 2003. Detective Clark was the interviewer and the second officer was a member of DOCS. Detective Clark, at that time, had worked in JIRT for two years. She explained that the second interview focussed upon the allegations of sexual abuse that had been disclosed by CV during the first interview and not upon the disappearance of CG. She said that there was no policy or protocol with JIRT that suggested that a female child should be interviewed by a female officer. There had been no particular reason why she had not carried out the first interview.

Detective Clark had been involved in excess of a hundred interviews carried out either as an interviewer, second officer or observer and there was no occasion when a support person was present. Her evidence in chief included the following (T125.27-36):

"Q. What was the practice of the JIRT organisation or teams in relation to support persons?

A. Due to the fact that there's no legislative requirement to have a support person; that's one of your first points. But the second thing is that we are taught not to have anybody in that room so to not contaminate the interview:

So there isn't somebody there potentially influencing the child who's possibly been through a very traumatic experience; and basically so you're impartial and objective and it's just yourself who's independent to the investigation at that stage interviewing the child when there are no other distractions in the room. That's basically the reasoning behind not having a support person."

When cross-examined by Mr Dalton on this topic, Detective Clark's testimony was as follows (T131.7-47):

" Q. Last one, child or young person wishes to have a support person present appropriate arrangements should be made?

A. Yes. But I have never had a child wanting a support person there.

Q. Have you ever asked?

A. No.

Q. You don't want one there?

A. As I explained before, our policy is to look after the child. The child's protection and welfare is paramount and as a police officer investigating any potential allegations, which are generally quite serious if they come under the JIRT criteria, as an officer investigating that, as a JIRT officer, I don't want anybody else in the room with that child, unless the child has specifically asked me for somebody else to be in the room and I have never encountered that.

Q. Your practice and that of the teams you have been associated with, you attempted to avoid, avoid, having a support person in the room when you are interviewing a young child?

A. Yes, because it's for the benefit of the child.

Q. That's despite the bullet point in the paragraph I have referred you to?

A. Basically, to me, what that point says, there is an option for a support person. There is an option for the support person to be included in a JIRT interview. As I was saying before, I haven't encountered one, I haven't asked. If a child says to me or if I felt a child was potentially developmentally delayed and I felt a child needed a support person I would have asked. I would have organised a support person to be there. But from my experience and from coming from the perspective of dealing with a child and in the attempt of getting disclosures and getting information out of a child, I, as an investigator and working with JIRT, believe that a support person in the room is going to be - won't have a positive - I think it would have negative impact as opposed to a positive impact. And the less distractions in the room are pertinent to conducting that interview.

Q. So a support person might break down the rapport you can establish with the child?

A. I beg your pardon.

Q. A support person might break down the rapport you seek to develop with the child you are interviewing?

A. A support person could easily be a distraction throughout the interview."

Detective Clark said that it was not necessarily her practice not to tell the parent of a child they could have a support person (T132.34-36). It was a decision she made but if she felt "that the child needed a support person she would have looked at that situation and brought in a support person": T132.37-38. She did not offer CV the services of a support person during the interview on 10 January 2003, as she did not feel CV needed one. When asked by Mr Dalton if she was trained contrary to the guidelines, Detective Clark replied (T148.2-3):

"As I have said, they are a guide. You have to assess each situation as they come to the forefront."

Detective Clark said that she had forgotten to tell Mr Wilson that there were two detectives in the monitor's room with her during the first interview and that had been a mistake on her part. The detectives had passed on information to her as the JIRT members had limited information concerning the matter. It was her testimony that if she had been of the opinion that CV was withholding information in relation to her mother's disappearance, she would have stopped and spoken to Mr Wilson about it, but at no stage throughout the interview had she believed that CV was "withholding information in terms of any criminal participation on her behalf": T142.39. A reticence by CV to disclose sexual interference would not cause her to suspend the interview. It had not been her take on the first interview that CV was withholding information to protect another person. She did not consider that a reasonable possibility. Detective Clark explained (T143.46-49):

" A. My experience with children, no, they are scared. They get very, very scared and quite often they shy away - from my experience, what they want to say or what has actually happened, they are afraid of reprisals, afraid of what might happen. They are frightened."

Detective Clark said that she had been conversant with the Code in January 2003. On this topic, she testified as follows (T145.20-47):

Q. Those rights you explained to CV on 7 January 2003?

A. No, because she wasn't at a police station. She was at a JIRT office.

Q. At the JIRT office, did you explain to her she could obtain legal advice, communicate with anyone outside the office or leave at any time?

A. That's not the requirement of what we do, very separate to volunteers that come into a police station.

Q. Did you advise her of any of those things?

A. Potentially would have offered her a drink at some point.

Q. I am referring to she could obtain legal advice, communicate with anyone outside your office, or leave at any time?

A. No. Completely separate situation.

Q. As far as you are concerned?

A. Yes.

Q. Investigative officer, where someone either in your company or by themselves attends a station voluntarily to help your inquiries, nature of your inquiries, and likelihood of the person arrested. Where this is a possibility albeit remote take the person to the custody manager. Is that correct?

A. I agree that's what that says, yes.

Q. You never consider that in any context of interview you conducted in the JIRT office?

A. No because the children were brought to us either as alleged victims or witnesses.

Argument

I do not propose here to provide an exhaustive exposition of the arguments of the parties, which are contained in extensive written submissions, but to provide a summary of the competing positions on the question of impropriety.

The accused's application for the exclusion of these interviews is founded on impropriety and not on a contravention of an Australian law. Mr Dalton initially indicated that an argument might be advanced that there had been a contravention of s 13 Children (Criminal Proceedings) Act 1986 (T10.16-17) but that argument was not pressed: T232.48-50 - T233.1-2. In any event, it is my view that the provisions of s 13 do not apply to the interviews. CV is not "a party to criminal proceedings" as she is not alleged "to have committed an offence while a child" (s 13(2)(b)) and the statements made by her during the interviews are not sought to be admitted in criminal proceedings against her: s 13(1).

The contention of impropriety primarily concerns the conduct of the first and second interviews by police and is summarised in the affidavit of Siobhan Mullany sworn 1 April 2011 as follows:

(i) The police failed to arrange an independent and or/support person to be present with [CV], then a 10 year-old child;

(ii) The police failed to facilitate the child to receive the advice of a solicitor as to her rights in regards to questioning with respect to material matters relating to a serious indictable offence;

(iii) The police failed to warn, caution or advise the child of her rights in this regard and/or any possible consequences to her regarding the revelation of material matters which she may have previously deliberately withheld.

(iv) The police in the first instance had a male officer interview the child;

(v) The police, being the interviewer and at least three other officers in another room, inappropriately manipulated the course of the material being elicited from the 10 year-old child during the first interview on 7 January 2003;

(vi) The subsequent interviews were also inappropriately conducted but were all in any event tainted by the impropriety associated with the first two interviews.

Mr Dalton also adopted the written submissions dated 2 September 2009 upon s 138 made by Mr Buscombe, the accused's counsel in the voir dire before Buddin J. In those submissions Mr Buscombe contended that the first and second interviews with CV were conducted improperly. He argued that the evidence supported a finding that the introduction of questions concerning Uncle N and the linking of his activities to those of the accused's father in the interview, was done deliberately by the interviewer. All further interviews were said to be tainted by the same impropriety.

Senior counsel for the accused submitted that even before consideration of the relevant police guidelines it was most improper for police to interview a 10 year-old child on her own, let alone a 10 year-old girl police suspected was potentially deliberately withholding material evidence with respect to a serious criminal offence. The police were of the view she had been coached and/or was lying to protect her stepfather. It was pointed out that CV was not offered the assistance of an independent support person. She was not advised nor cautioned that she may be making admissions contrary to her own interest which may render her liable to a criminal offence (s 316 Crimes Act 1900). CV was not asked if she wanted legal advice, she was not told that she was only required at law to provide her name and details. She was interviewed alone by a male officer, in circumstances where the police had notice of a prior allegation of sexual assault, and the interview was permitted to continue even though it was decided to raise with her the circumstances of that allegation.

Another complaint was that the course of the interview was manipulated by the interviewer with the assistance of at least three other police officers in another room directing the questioning by persistent questions on topics when not satisfied with her answers. The accused contended that the police pressed CV to reveal what she said she could not remember and interpolated by suggestion that the complaint related to a sexual assault. This evidence, the accused submitted, which was induced by improper police questioning, would not be admissible in any proceedings against the alleged perpetrator of the sexual assaults.

Mr Dalton put to me that the manner in which the police conducted the first interview was improper and that the evidence that ensued was obtained as a result of a number of improprieties on behalf of the police. It was further argued that the impropriety existed regardless of the fact that the relevant police may not have subjectively considered CV a suspect with regards to s 316 Crimes Act or as an accessory after the fact to any offence involving the disappearance of her mother. Police were re-interviewing CV because they considered that she might have been withholding material information with respect to her mother's disappearance. The accused contended that CV was a suspect and should have been dealt with in accordance with the Code, that the JIRT protocols and guidelines had not been complied with and there was nothing to suggest in the guidelines any distinction between a child who is interviewed as a witness as opposed to a child who might be a witness but is also a victim. The guidelines applied to all joint investigations and applied in the current circumstances.

The Crown argued that "the right to silence" is not a universal and unfettered right of a citizen not to say anything. The right is a protection against self-incrimination, which is subject to specific statutory modifications. The Crown pointed out that all persons are obliged, consistent with various provisions of the Crimes Act 1900 including s 316, to provide information to authorities.

It was submitted that there were no legislative provisions that obliged police to caution a witness. The Crown contended that upon the evidence on the voir dire it was not usual or expected that police would caution a witness before taking a statement or commencing an interview. There was no evidence, the Crown argued, of a community standard that would support such a requirement and as the legal obligation of a witness differs substantially from that of a person suspected of a crime or in custody, it would be incorrect to advise a witness that he or she did not have to say anything.

The Crown pointed out that there was no legislative requirement for a support person to be present at an interview of a witness. Whilst the JIRT guidelines applied to the first and second interviews, the guidelines were merely there to provide guidance to police in carrying out their duties. Failure to adhere to the letter of those guidelines could not be the foundation for a complaint that the interviews were improper.

As to the failure to afford to the child an opportunity to obtain legal advice the Crown submitted that such a process was not required having regard to the age of the child and the fact that her father (and by reason of his presence the accused, as guardian) consented to her being interviewed. She was not a suspect but a potential witness in the disappearance of her mother. The Crown argued that to suggest that CV, who was under the age of 10 at the time of her mother's disappearance, might somehow be implicated in the death of her mother or might be a potential offender in giving false information to police, was absurd. Prosecutions for offences under s 316 could only be taken with the consent of the Attorney General and were a rarity.

The Crown submitted that there was nothing illegal or improper about the conduct of the first and second interviews. Direct questions and subsequent leading questions were only used after there had been disclosure by the child of issues concerning the grandfather. Mr Wilson had an overriding obligation to ensure the safety of the child and as she was living with the accused and her grandfather, which placed her at risk, it was necessary for him to use a variety of techniques to obtain the details of the relationship.

As there was not in this case any suggestion of impropriety towards the accused, it was submitted that, for that reason alone, the application should be rejected.

Legal principle

Section 138 Evidence Act , is relevantly as follows:

"138 Exclusion of improperly or illegally obtained evidence

(1) Evidence that was obtained:

(a) improperly or in contravention of an Australian law, or

(b) in consequence of an impropriety or of a contravention of an Australian law,

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

...

(3) Without limiting the matters that the court may take into account under subsection (1), it is to take into account:

(a) the probative value of the evidence, and

(b) the importance of the evidence in the proceeding, and

(c) the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d) the gravity of the impropriety or contravention, and

(e) whether the impropriety or contravention was deliberate or reckless, and

(f) whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights , and

(g) whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h) the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law."

Consideration of the matters that must be taken into account under sub-section (3) only arises if the court is satisfied that the evidence was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law. The list of matters mentioned in s 138(3) is not exhaustive.

The accused bears the onus of proving on the balance of probabilities illegality or impropriety but once that has been established, the onus is on the Crown to persuade the court "that the discretion and balancing exercise conferred on the court by subs (1) should, by reference to the matters set out in subs (3), and any other relevant matters, be exercised by admitting the evidence": R v McKeough [2003] NSWCCA 385 at [36]. The discretion is to admit the evidence notwithstanding the impropriety or illegality: R v Coulstock (1998) 99 A Crim R 143.

The balancing exercise to be undertaken under s 138(1) requires the court "to determine whether the desirability in admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained".

As Basten JA observed in Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 227 ALR 353 at [21], s 138 has a broad scope. It applies not merely to evidence obtained unlawfully, but also to evidence obtained "improperly".

The Evidence Act does not define "improperly" or "impropriety". In Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619, French CJ noted at [29]:

"The meanings to be accorded to the terms "improperly", "impropriety" and "contravention" in s 138 were not illuminated by the Law Reform Commission report. The relevant ordinary meanings of "improper" include "not in accordance with truth, fact, reason or rule; abnormal, irregular; incorrect, inaccurate, erroneous, wrong."

In Robinson v Woolworths , Basten JA relevantly considered at [23] that the identification of impropriety required attention to:

(i) The necessity "to identify what, in a particular context, may be viewed as 'the minimum standard which a society such as ours should expect and require of those entrusted with powers of law enforcement'"; and

(ii) The conduct in question "must not blur or contravene those standards in some minor respect; it must be "quite inconsistent with" or "clearly inconsistent with" those standards."

His Honour said at [36]:

" ...mere doubts about the desirability or appropriateness of particular conduct will not be sufficient to demonstrate impropriety."

Howie J in R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 stated at [20]:

" I am of the view that, otherwise than when subs 138(2) or s 139 apply, the court should determine whether the section is engaged having regard to the particular facts and circumstances before it but with due regard to the seriousness of a finding that evidence was obtained improperly or as a consequence of an impropriety and the outcome of such a finding. Not every defect, inadequacy, or failing in an investigation should result in a finding that the section applies merely because it may be considered that, as a result of those defects, inadequacies or failings, the investigation was not properly conducted or that the police did not act properly in a particular respect."

His Honour, however, accepted that the conduct in question need not necessarily be wilful or committed in bad faith or as an abuse of power.

It is important to recognise that the evidence to which the accused objects must have been obtained improperly or as a consequence of an impropriety. The accused bears the onus on the balance of probabilities of establishing a causal connection between the impropriety and the obtaining of the relevant evidence: R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 at [86]; R v Cornwell at [25].

Consideration

The accused's application is for the exclusion of the whole of the first and second interviews and not individual parts of this material. Although the order sought in the notice of motion is widely cast so as to take in all of the evidence of CV, the Crown does not seek to tender the third interview and the sessions of hypnosis. Accordingly, it is unnecessary for me to consider whether any of these interviews were inappropriately conducted and tainted by impropriety associated with the first two interviews.

Amongst the matters that were said by the accused to give rise to impropriety was the contention that it was most improper for the police to interview CV, a 10 year-old girl, without caution or without advice as to her right to legal representation when police suspected that she was potentially deliberately withholding material evidence with respect to a serious criminal offence. In oral submissions, Mr Dalton explained that CV may have been considered a suspect having regard to s 316 Crimes Act in that she was a person who knew or believed that a serious indictable offence had been committed, namely, the murder of her mother, or by virtue of an attempt to interfere with evidence thereafter, to "pervert the course of justice or [being] an accessory after the fact": T231.44-45. Mr Dalton identified the perverting the course of justice as being if the accused "attempted to interfere with her and the evidence she would give in relation to the investigation": T231.45-47. The general offence of perverting the course of justice is found in s 319 Crimes Act .

Both Detectives MacDonald and MacLeod, at the time that they spoke to CV at her school in Putney on 13 February 2002, suspected that she could have been coached by the accused and was not revealing all that she knew about the disappearance of her mother. CV was 9 years old at that time. Detective MacDonald's evidence was that he told the JIRT officers before the first interview commenced something along the lines "whilst they're interviewing her, ... try and canvas the fact with her if she has been told what to say, and if her answers appear that she had been coached, to explore that further". Mr Wilson had no recollection of anybody telling him anything about whether or not CV had been coached. There is nothing in the Interview Plan that refers to CV being coached. Detective Clark did not recall the detectives saying to her that they considered CV had been coached to withhold important information, but her recollection of the limited information that had been provided, included "the only version CV had been given was from her stepfather".

I am satisfied on the balance of probabilities that the detectives did indicate to the JIRT officers a concern that CV may have been told what to say by the accused. At the time of the first interview CV was 10 years of age. None of the police officers, I find, considered that it was a possibility that CV was committing an offence contrary to s 316 Crimes Act nor that she may have been an accessory after the fact.

The accused, however, submitted that the impropriety existed regardless of the fact that the police may not have subjectively considered CV a suspect. The accused argued that, objectively, she was a suspect. To resolve this issue it is unnecessary, in my opinion, to consider the common law rule of doli incapax.

Section 316 Crimes Act is as follows:

Concealing serious indictable offence

"(1) If a person has committed a serious indictable offence and another person who knows or believes that the offence has been committed and that he or she has information which might be of material assistance in securing the apprehension of the offender or the prosecution or conviction of the offender for it fails without reasonable excuse to bring that information to the attention of a member of the Police Force or other appropriate authority, that other person is liable to imprisonment for 2 years.

(2) A person who solicits, accepts or agrees to accept any benefit for himself or herself or any other person in consideration for doing anything that would be an offence under subsection (1) is liable to imprisonment for 5 years.

(3) It is not an offence against subsection (2) merely to solicit, accept or agree to accept the making good of loss or injury caused by an offence or the making of reasonable compensation for that loss or injury.

(4) A prosecution for an offence against subsection (1) is not to be commenced against a person without the approval of the Attorney General if the knowledge or belief that an offence has been committed was formed or the information referred to in the subsection was obtained by the person in the course of practising or following a profession, calling or vocation prescribed by the regulations for the purposes of this subsection.

(5) The regulations may prescribe a profession, calling or vocation as referred to in subsection (4)."

The essential elements of an offence of concealing a serious indictable offence contrary to s 316 Crimes Act , relevantly, are:

1. A person has committed a serious indictable offence;

2. CV knew or believed that a person had committed a serious indictable offence; and

3. CV had information, which might have been of material assistance:

(i) in securing the apprehension of the offender; or

(ii) the prosecution or conviction of the offender for it; and

4. CV failed, without reasonable excuse, to bring that information to the attention of a member of the police force or other appropriate authority.

It is also convenient to record here the essential elements of an offence of perverting the course of justice contrary to s 319 Crimes Act , which, relevantly, are;

1. the accused did any act or made any omission;

2. with intent in any way to pervert the course of justice.

As to the offence of being an accessory after the fact, the essential elements, relevantly, are:

1. That a crime has been committed by a principal offender;

2. That at the time CV rendered assistance to the principal offender, CV was aware of all the essential facts or acts that establish the precise offence to which it is alleged that CV was an accessory; and

3. That with that knowledge CV had intentionally assisted the principal offender.

It is a logical leap from the suspicion of the investigating officers that CV had been coached, to conclude that CV ought reasonably to have been suspected of an offence contrary to s 316, or of being an accessory after the fact. There was simply no evidence to suggest that CV knew or believed that the accused (or anybody else) had murdered her mother, or if she had been told by the accused what to say to police, that the child knew or believed that he had done so with intent to pervert the course of justice, or that CV was not revealing all that she knew as she was aware of all the essential facts that established the accused had murdered her mother or was acting with intent to pervert the course of justice. Applying an objective test, on the information available, CV could not reasonably have been suspected of having committed an offence.

I reject the accused's contention that objectively CV was a suspect and should have been dealt with by police as such.

Before departing from this topic, there is another argument that should be canvassed. In submissions in reply, it was explained by Mr Dalton at par 13 that the accused's submission was not that it was likely CV was going to be charged but "rather it was important for the police to make it known they had some suspicions regarding the child being coached to deliberately withhold material and this was a serious matter". It was put to me that CV should have understood she could get into trouble as such if she did this, and that it was important to be truthful whilst at the same time understanding her rights. I am firmly of the view that for Mr Wilson (or other officers) to have told CV of these matters, would have placed undue pressure upon her and would have been inappropriate in all the circumstances.

Another matter raised by the accused is that before questioning CV, Mr Wilson was obliged to caution her that she did not have to say or do anything (the right to silence). It is not suggested, however, that s 139 Evidence Act applies as the child was not under arrest for an offence, but was attending at the JIRT office as a witness. I do note that neither the JIRT Guidelines nor the Code refer to a requirement to caution a witness, who is not a suspect.

Cases such as R v Patsalis & Spathis [No 3] [1999] NSWSC 718 and R v Frangulis [2006] NSWCA 363 suggest that the scope of the obligation to administer a caution is not as wide as that contended by the accused. In Patsalis , Mr Patsalis, the accused, handed police a document at a time when he was not suspected of having committed an offence. Kirby J rejected Mr Patsalis's argument that the document was improperly obtained as no warning had been administered to him. Kirby J at [41] said that there was no occasion to warn Mr Patsalis and there was no impropriety.

It is plain from Frangulis per Hidden J at [34] that a failure to provide a caution where questioning is undertaken by an insurance investigator acting in co-operation with the police does not necessarily render the admissions made unfair. The Court of Criminal Appeal did not consider s 138 Evidence Act in that case as the trial judge had expressed the view that the argument advanced under that section had insufficient merit and no ground of appeal was raised.

I would reject the accused's contention that there is a universal obligation upon police to caution a witness before commencing an interview. In my opinion, Mr Wilson was not required to inform CV that she did not have to say or do anything before questioning her nor did Detective Clark prior to commencing the second interview. CV was not under arrest, nor could she have reasonably been suspected of committing an offence. She was a 10 year-old child whose father had consented to the interviews being conducted. I conclude that there was no impropriety by the failure to give a caution.

The Code did provide that a person who was voluntarily at a police station to help with an investigation was entitled to obtain legal advice, communicate with anyone outside the police station or leave at any time. CV was not informed of any of these matters before or during the first or second interviews. It is evident that it was not the practice of the JIRT officers to bring these matters to the attention of children who were to be interviewed either as a victim or as a witness. The Code did not impose a statutory obligation upon the JIRT officers to comply with it.

The question remains, however, whether the omission by the JIRT officers to bring these matters to CV's attention did not accord with the minimum standards of behaviour that our community expects from those entrusted with the enforcement of the law. In my opinion, the community would not expect that a 10 year-old child, who attended at a JIRT office with the consent of her father to be interviewed as a witness, be told of those matters that the JIRT officers omitted nor would the community expect that such information be provided to such a child who was to be interviewed as a victim of sexual assault. The circumstances of CV's interviews did not require such information being communicated to the child. There was no impropriety.

Emphasis was also placed by the accused on the reference in the Code to where there is a possibility "albeit remote" that a person will be arrested, he or she is to be taken to the custody manager: see [31] above. In the circumstances of CV, there was no possibility that she was likely to be arrested and any reliance that the accused places upon this reference is, in my view, ill-founded.

Before proceeding, it is important to indicate that should I have concluded that the failure to administer or caution, or to provide the information referred to in [95] above, amounted to an impropriety, the accused has not established a causal connection between the impropriety and CV's answers during the first and second interviews. Neither CV nor her father gave evidence during the voir dire. There is no evidence, either express or by inference, that suggests that CV would have acted in any different way and not answered as she did, if the "impropriety" had not occurred. I am not satisfied that the accused has proven either an impropriety or that the evidence was obtained either directly or in consequence of an impropriety.

A focal point of the accused's contention of impropriety was the failure by police to arrange for a support person to be present when CV was interviewed. The JIRT protocols and guidelines that have been quoted at [26] - [30] above, included that advice be given to the child that she could have a person to support her during the interview process and if that was her wish, appropriate arrangements should be made.

The testimony of Mr Wilson and Detective Clark demonstrated that these procedures were not followed in practice by JIRT members and the provision of a support person was considered to be an option. The thinking was that a child might feel uncomfortable making difficult disclosures in the presence of a parent, guardian or support person, that the child might look at them for permission before answering or that they might be a distraction. It is unsurprising, in my opinion, that the JIRT members had adopted that approach in practice as a child's safety, welfare and wellbeing were of paramount importance and no questions of fairness to the child would ordinarily arise when the child was being interviewed as a victim or as a witness. This was the case with CV. No statutory obligation was imposed upon the JIRT officers to comply with the procedures but that does not answer the question raised of impropriety.

The omission by the JIRT officers to tell CV that she could have a support person present in the interview room if she wished did not breach, in my opinion, the minimum standards of behaviour that our community expects from those entrusted with the enforcement of the law. The circumstances of the first and second interviews did not demand the presence of a support person and there were good reasons for these interviews to be conducted without one. I do not find impropriety.

In any event, the accused has not established a causal connection between what was said to be an impropriety and CV's answers during the first and second interviews. There is no evidence from which I can conclude that if CV had been informed that she could have a support person present during the interviews:

(a) CV would have requested a support person; and

(b) CV would have acted in any different way and not answered as she did, had such a person been present.

I am not satisfied that the accused has proven either an impropriety or that the evidence was obtained either directly or in consequence of an impropriety.

Another contention of impropriety is founded upon the first interview being conducted by a male. There was neither a statutory obligation nor a JIRT protocol or guideline that provided for the interview of a child by a member of the opposite sex. I do not consider that the minimum community standards required that CV, a prepubescent child, be interviewed by a female officer. Mr Wilson was an experienced member of JIRT and I do not find an impropriety.

The next complaint of impropriety was the failure by Mr Wilson to introduce to the child, Detectives MacDonald and MacLeod who were present in the adjoining room. JIRT Guidelines for conducting an interview included introducing the second interviewer and any other person monitoring the interview. Mr Wilson did not introduce these detectives. Mr Wilson could not recall if there were other detectives in the adjoining room and did not know why he had not mentioned them. He conceded that he may have known about their presence but saw no need to introduce them as the detectives were not involved in the interview by talking to him. During her evidence, Detective Clark explained that she had forgotten to inform Mr Wilson that the two detectives were in the monitor's room and that had been a mistake on her part. The accused, however, invited me to find that the omission was deliberate as were the failures not to provide CV with a support person, not to advise her of her rights and not to caution her. All of this was said to be a deliberate taking advantage by police of the opportunity of manipulating the child's vulnerability, to test their suspicions that CV was withholding material information.

Both Mr Wilson and Detective Clark impressed me as honest witnesses who were doing their best to recall events that had occurred some eight years ago. Unlike Mr Wilson, who retired from the police force shortly after the first interview and had taken a position with Centrelink, Detective Clark has remained in the police force. She is currently attached to education and training at State Crime Command. My impression of Detective Clark was that she had a better recollection of the events surrounding the first interviews than Mr Wilson, which is to be expected, as Mr Wilson's attention has for many years not been directed at police matters. I accept Detective Clark's testimony as to how the introduction of the detectives came to be overlooked. Furthermore, I accept the reasons given by Mr Wilson and Detective Clark for the way in which the first and second interviews were conducted and reject the accused's contention that police took advantage of and manipulated a vulnerable child.

The omission by the JIRT officers to introduce CV to all of the detectives in the adjoining room did not, in my view, fall below the minimum standards of behaviour that our community expects from those entrusted with the enforcement of the law. I do not find an impropriety.

Another complaint that was made in written submissions for the accused, was that the child was not advised that she was not a compellable witness against her stepfather, pursuant to s 18 Evidence Act . It seems to have been accepted by Mr Dalton, in oral submissions, that there was no substance in this complaint (T233.27-37). But I should make it clear that the police were not obliged to provide such advice to CV. The appropriate time for there to be consideration of the compellability of CV to give evidence is at the time she is required to give evidence at the trial, but this issue has no impact upon the question of impropriety.

I turn to consider the accused's contention that the police "inappropriately manipulated the course of the material" being elicited from CV during the first interview. The essence of the argument is that Mr Wilson adopted cross-examination techniques including persistent questioning and suggestive questions, notwithstanding his understanding that adopting those type of techniques could have led to the evidence obtained, being held to be inadmissible in subsequent criminal proceedings. In submissions in reply, Mr Dalton identified the inappropriate questioning as having developed from Q 177 to the introduction of Uncle N at Q 355.

There was undoubtedly some persistence in the questions asked by Mr Wilson but persistence by itself does not mean that there was impropriety. Mr Wilson had no prior knowledge of any improper conduct by AG towards the child. CV's revelation in her answer to question 177 that it was something about her grandfather, which had caused her mother to run away, and her mother got really angry, justifiably initiated in Mr Wilson, the thought that there was something CV knew but did not wish to answer. Her subsequent disclosures at Q 222 that her mother was "calling [AG] names" and at Q 223 "probably like dirty animal or pig", unsurprisingly, lead to Mr Wilson forming the opinion that there might have been inappropriate sexual conduct by AG towards CV. The subject of Uncle N had been raised by Detective MacDonald as he was concerned about the child's welfare and he considered that it might overcome her reluctance to speak about what had occurred with AG. In my opinion, Mr Wilson as a JIRT officer, had a duty to ascertain the facts which beared upon the possibility that the child had been sexually assaulted and he was not bound to accept her reticence to answer.

The introduction of Uncle N at Q 355 and the question at 358 as to whether "the stuff" that Uncle N had done to CV "was anything at all like the stuff that your grandfather ...was doing to you" were leading questions that were asked by Mr Wilson to ascertain what had happened to the child and as to whether she was at further risk of harm. He continued to ask questions, which included the leading question at 460 "Did your grandfather touch you on your rude part?" Mr Wilson did so as he was determined to ascertain what had happened. Although there was some persistence and leading questions were asked, I do not consider that there was any intimidation, persistent importunity or sustained or undue insistence or pressure by Mr Wilson in the interview.

I accept, however, that the manner in which the questions were asked carry with it a risk that CV had been "led by suggestion to identify falsely the matter of complaint to her mother and [the accused]" on the evening before CG disappeared: Basten JA in Director of Public Prosecutions (NSW) v JG at [128]. It does not necessarily follow that there was impropriety.

As has been quoted at [28] above, the JIRT procedures for Investigative Interviews included a consideration of "use of non-leading questions" and "adherence to the rules of evidence". The procedures also provided that "the continuing safety and wellbeing of the child ...will be considered". A Key Principle of a JIRT investigation was that the child's safety, welfare and wellbeing were of paramount importance (ex 5 p 3). The Guidelines for the electronic recording of investigative interviews with children emphasised at p 51 the pre-eminence of the child's best interests and welfare. Although Mr Wilson asked leading questions and, in that way, did not comply with the JIRT procedures, he did so as he was genuinely concerned for the child's welfare and safety. At the time of the interview, CV was living with the accused and AG. In these circumstances, the community would expect that a JIRT officer would attach the utmost importance to the child's safety. There were no questions of fairness to the child to be considered and, in my opinion, the minimum standards of behaviour that our community expects from those entrusted with the enforcement of the law were not breached by the way the first interview was conducted. I do not accept the accused's contention of inappropriate manipulation by police during the interview. I do not find that there was impropriety.

I have not previously mentioned the evidence of Dr Roberts and Dr Samuels, both psychiatrists, that was given in the voir dire before Buddin J. His Honour summarised at [34] - [38] in R v JG those parts of the psychiatrists' testimony that were of significance to the first and second interviews. The transcripts of their evidence are included in the material tendered before me. Dr Robert's report dated 3 August 2009 is in evidence (ex B) as is his report dated 11 April 2011 (ex C).

Dr Roberts gave evidence on the voir dire before me, the thrust of which was directed at observations made by Basten JA in Director of Public Prosecutions (NSW) v JG at [93] - [98]. Notwithstanding the additional evidence provided by Dr Roberts to deal with Basten JA's observation at [96] that the psychiatrist's "curriculum vitae did not indicate any specific training or experience in dealing with young children", Dr Roberts gave evidence in cross-examination that his practice was primarily concerned with adult psychiatry, that he had not interviewed children and had no experience in obtaining evidence from them. His expertise to comment upon the impact that the questions asked during the first and second interviews may have had upon the child is not based on a solid foundation, but for present purposes that is a matter of weight to be given to his testimony. Neither of the psychiatrists had the benefit of considering the evidence of Mr Wilson and Detective Clark and the paramount importance that they attached to the safety and wellbeing of the child.

Although the opinions of the psychiatrists as to the conduct of the first and second interviews are relevant, I have attached little weight to them in considering whether the evidence was obtained improperly or in consequence of an impropriety.

One of the accused's submissions makes reference to CV's answers not being admissible in proceedings against AG for sexual assault. It is unnecessary to deal with this issue, other than to state that the reality of the present complaint is not one of impropriety in obtaining the evidence but how the Crown intends to use it in the trial. This gives rise to those matters under s 137 Evidence Act that the Court of Criminal Appeal has considered.

Each of the accused's complaints of impropriety has been considered individually and no impropriety has been established. When the complaints are considered in combination, I am also not satisfied on the balance of probabilities that the evidence was obtained improperly or in consequence of an impropriety. Furthermore, I should state, that I am not satisfied that there was any impropriety in the way that the second interview of CV was conducted by Detective Clark or that the answers CV gave were obtained improperly or in consequence of an impropriety.

Should I be wrong about those matters, I turn to s 138(3) Evidence Act . Under subsection (3)(a) the court is to take into account "the probative value of the evidence". In Director of Public Prosecutions (NSW) v JG, Basten JA considered at [118] that if accepted, the evidence in the first and second interviews had "high probative value", whereas RS Hulme J at [156] regarded that evidence as having "significant probative value". Various submissions were made by Mr Dalton (at par 93(a) AWS) but none of the arguments advanced diminish, to my mind, the assessments made by Basten JA and RS Hulme J of the probative value of CV's answers.

Mr Dalton further argued that issues of reliability are to be taken into account in a s 138 application. Reliance was placed upon the citation by Spigelman CJ at [6] in R v Dalley of a passage from the judgment of Deane J in Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 at 203-204.

The Chief Justice in Dalley , cited what was said by Deane J, to support the conclusion that the more serious the offence, the less likely the discretion under s 138 will be exercised in favour of exclusion. The Court of Criminal Appeal in that case did not closely consider the meaning of "the probative value of the evidence" in s 138(3). Furthermore, Pollard was a case that preceded the Evidence Act .

In R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228, Spigelman CJ (with whom Simpson and Adams JJ agreed), construed s 137 Evidence Act as focussing attention on the capability of the evidence to have a particular effect, rather than its reliability, which is a matter for the jury. Spigelman CJ said at [61] - [63]:

"In my opinion, the critical word in this regard is the word could in the definition of probative value as set out above, namely, "the extent to which the evidence could rationally affect the assessment ... ". The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has "probative value", as defined, if it is capable of supporting a verdict of guilty.

This conclusion is reinforced by the test that evidence must "rationally affect" the assessment. As Gaudron J emphasised in Adam , a "test" of "rationality" also directs attention to capability rather than weight.

There will be circumstances, as envisaged by Simpson J in Cook supra, where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue. In that limited sense McHugh J's observations in Papakosmas that "considerations of reliability are necessarily involved" have application."

In reaching this conclusion, the Chief Justice had analysed the words "probative value" as defined in the Dictionary to the Evidence Act . The meaning of the words "probative value" in s 138(3)(a) must be, in my opinion, the same as those found in s 137 as they depend upon a common definition. It is my conclusion that questions of reliability do not apply to the present evidence. I do not think that there are circumstances in the present case, as referred to by Simpson J in R v Cook [2004] NSWCCA 52 at [43], from which it is possible for the court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of the fact in issue.

The evidence has, in my opinion, at the least, significant probative value.

As to s 138(3)(b), the evidence is plainly of importance in the proceedings. The offence is one of the utmost gravity: s 138(3)(c). While I have not found impropriety, any impropriety if it existed, would not be of a major kind: s 138(3)(d). Should my conclusions of impropriety be wrong in respect of the manner in which the first interview was conducted, the impropriety would be intentional but motivated by Mr Wilson's concerns for the child's safety and wellbeing as would be the failure to advise CV that she could have a support person present if she wished: s 138(3)(e).

I do not consider that there has been any contravention of the International Covenant on Civil and Political Rights : s 138(3)(f). It is unlikely that there will be any proceedings taken in relation to the impropriety: s 138(3)(g). The reticence of CV, a 10 year-old child, to make disclosures of sexual misconduct made it difficult for Mr Wilson to obtain the evidence without the use of persistence and leading questions: s 138(3)(h).

Carrying out the balancing exercise, I consider that the desirability of admitting the evidence outweighs the undesirability of admitting the evidence that has been obtained in the way in which the evidence was obtained. I reject the application made under s 138 Evidence Act to exclude CV's evidence.

The application for a permanent stay

The basis of the application for the permanent stay is that:

(a) The police, in the first interview with CV, through a combination of systemic failure and individual recklessness, unfairly generated damaging evidence against the accused.

(b) The resultant evidence is unquestionably unreliable.

(c) Because of the nature of the police questioning, the factors operating to make the evidence unreliable cannot now be nullified.

(d) The degree of unreliability - particularly after the interview under hypnosis - cannot now be quantified.

(e) Even with the evidence of the subject interviews the case against the accused is not strong.

(f) Any trial permitted to be based on the subject interviews would be so permeated by the improper police conduct that it would be rendered unfair to the accused.

The accused contended that even if the first and second interviews were to be admitted, the prosecution is "still doomed to fail". The evidence did not provide the Crown case even on a "strands in the cable basis" with sufficient evidence for a sustainable finding of guilt. In all the circumstances, to permit the prosecution to continue would be oppressive such as to constitute an abuse of process. It was put to me that the reliability of CV's evidence had been compromised because of the manner in which the police had conducted the interviews, which had become exacerbated by the many subsequent interviews, two of which involve hypnosis and were conducted in disregard of the relevant police guidelines. Unfairness, Mr Dalton submitted, should be considered as a separate head of abuse in the context of the stay application.

Another argument that senior counsel advanced was that the Crown does not seek to rely upon the reliability of CV's evidence with respect to the alleged sexual assault but only as to the complaint by the child to her mother and the accused on the night before CG disappeared. There will be unfairness to the accused because AG's credit will be, Mr Dalton submitted, totally undermined by these allegations, which "will have a most damaging run off effect on the accused and his account as to the circumstances of his wife leaving the house". Mr Dalton contended that "for the prosecution to seek to use evidence in this way when it is conceded it cannot otherwise [be used] against AG also constitutes an abuse of process": AWS at par 35(d).

What was stated to be a final submission was that the prosecution should not be able to pick and choose in what proceedings it wishes to lead evidence that it accepts (as it must) as unreliable in at least one type of prosecution. To permit the prosecution to so proceed would lead, it was submitted, to such inconsistency as to undermine the public confidence in the administration of justice and constitute an abuse of process.

The Crown informed the court that it was not his intention to call AG nor did he seek to establish that AG had sexually assaulted the child. The Crown repeated what had been said on prior occasions, that the purpose of CV's evidence was to establish her complaint to her mother of sexual assault by AG on the evening before CG disappeared. The Crown submitted that the accused's argument that the reliability of the child's evidence had been undermined by subsequent events was a rehash under another guise of the submissions to the Court of Criminal Appeal in Director of Public Prosecutions (NSW) v JG . As to the submission that there was insufficient evidence to support a finding of guilt, the Crown contended that such a submission was premature and amounted to a "prima facie" case submission, which should be made at the conclusion of the Crown case.

Amongst the submissions made for the accused in reply was that AG was to be an important witness in corroborating the accused but the jury's inevitable consideration of the sexual assault allegations constitutes an intolerable unfairness. The accused, it was said, will be required to try and defend these allegations against AG to defend himself when there was no foundation to them and no report was made to him and CG the night before she left.

In Dupas v The Queen [2010] HCA 20, the High Court of Australia dismissed an appeal against the refusal of a permanent stay in a murder trial. The High Court at [18] cited what was said in R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605 - 606 by Mason CJ and Toohey J that:

"[A] permanent stay will only be ordered in an extreme case and there must be a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."

The High Court declared that the above statement should be regarded as an authoritative statement of principle. The Court observed at [35] that there is no definitive category of extreme case in which a permanent stay of criminal proceeding will be ordered.

The Court observed at [37]:

"A further consideration is the need to take into account the substantial public interest of the community in having those charged with criminal offences brought to trial. Because of this public interest, fairness to the accused is not the only consideration bearing on a court's decision as to whether a trial should proceed."

I do not consider that the accused has established a fundamental defect that goes to the root of the trial. Although the video-recordings will be played to the jury, CV will be available for cross-examination. CV did not give evidence upon the voir dire and I have no idea what she will say under cross-examination. Mr Dalton referred to the Crown having served a s 38 Evidence Act notice and to the Crown's intention to cross-examine CV. The Crown has not informed me of these matters. Should it be the case that the Crown seeks the leave of the court to cross-examine CV about any of the three subjects described in s 38(1) and leave is granted, the jury will have the opportunity of assessing the honesty and reliability of her evidence when questioned by the Crown and in cross-examination by counsel for the accused. Furthermore, as Basten JA pointed out in Director of Public Prosecutions (NSW) v JG at [124] expert evidence could be called before the jury, with the court's leave, "by way of an opinion that the mode of questioning could substantially affect the credibility of the daughter". To that, I would add that expert evidence could be called as to the impact that the two sessions of hypnosis might have upon CV's recollections of what had occurred. The jury might be warned, upon the accused's application, that CV's evidence was "of a kind that may be unreliable" for the purposes of s 165(1) Evidence Act .

As to the contention of an intolerable unfairness by the adverse effect that the sexual assault allegations will have upon AG's evidence, who is considered to be an important witness for the accused, AG's evidence would be before the jury for it's consideration in combination with any expert evidence and the jury warning under s 165 Evidence Act . Furthermore, it is open to the accused to give evidence at his trial. It is a matter for the jury, considering all the evidence before it, to make an assessment of the honesty and reliability of CV's evidence. In my opinion, unfairness to the accused has not been demonstrated.

The proposition that the Crown case is "doomed to fail" and it would be oppressive to permit the case to continue is made without any proper basis. The statements of all Crown witnesses were not tendered upon the voir dire and the oral evidence was confined to the issues concerning the first and second interviews. The strength of the Crown case was not canvassed and I do not accede to the accused's invitation to find that there is insufficient evidence to sustain a finding of guilt.

I conclude that the present case is not extreme and the application for a permanent stay is refused.

Orders

1. The notice of motion is dismissed.

**********

Decision last updated: 14 February 2012

Medium Neutral Citation:	Giannasca v R (No 2) [2011] NSWSC 1681
Hearing dates:	11 April 2011, 12 April 2011, 13 April 2011, 14 April 2011, 15 April 2011, 18 April 2011, 20 April 2011, 21 April 2011
Decision date:	06 May 2011
Jurisdiction:	Common Law - Criminal
Before:	Price J
Decision:	The notice of motion is dismissed
Catchwords:	EVIDENCE - admissibility - s 138 of the Evidence Act 1995 - evidence obtained improperly or in consequence of an impropriety CRIMINAL LAW - permanent stay of proceedings
Legislation Cited:	Children (Criminal Proceedings) Act 1986 Crimes Act 1900 Criminal Procedure Act 1986 Evidence Act 1995
Cases Cited:	Director of Public Prosecutions (NSW) v JG [2010] NSWCCA 222 Dupas v The Queen [2010] HCA 20 Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 252 ALR 619 Pollard v The Queen [1992] HCA 69; (1992) 176 CLR 177 Robinson v Woolworths Ltd [2005] NSWCCA 426; (2005) 227 ALR 353 R v Cook [2004] NSWCCA 52 R v Cornwell [2003] NSWSC 97; (2003) 57 NSWLR 82 R v Coulstock (1998) 99 A Crim R 143 R v Dalley [2002] NSWCCA 284; (2002) 132 A Crim R 169 R v Frangulis [2006] NSWCA 363 R v Glennon [1992] HCA 16; (1992) 173 CLR 592 R v JG [2009] NSWSC 1053 R v McKeough [2003] NSWCCA 385 R v Patsalis & Spathis [No 3] [1999] NSWSC 718 R v Shamouil [2006] NSWCCA 112; (2006) 66 NSWLR 228
Category:	Procedural and other rulings
Parties:	John Charles Giannasca Crown
Representation:	D G Dalton SC with P J Pearsall (Accused) P E Barrett (Crown) Legal Aid NSW (Accused) Director of Public Prosecutions (Crown)
File Number(s):	2009/779