JD v DPP

[2000] NSWSC 1092

CITATION:	JD v DPP & Ors [2000] NSWSC 1092
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 11794 of 1998
HEARING DATE(S):	15/12/99
JUDGMENT DATE:	30 November 2000
PARTIES :	JD (plaintiff) Director of Public Prosecutions (1st defendant) Mr J Williams, Magistrate (2nd defendant) Chief Magistrate of the Local Court of NSW (3rd defendant)
JUDGMENT OF:	Hidden J at 1

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Mr J Williams

COUNSEL :	G Walsh (plaintiff) P Lakatos (1st defendant)
SOLICITORS:	Greg Walsh & Co (plaintiff) Solicitor for Public Prosecutions (1st defendant) Crown Solicitor (3rd defendant)
CATCHWORDS:	CRIMINAL LAW - committal proceedings - defendant's application for costs - whether investigation unreasonable - consideration of s42A(2A) of the Justices Act
LEGISLATION CITED:	Justices Act 1902
CASES CITED:	House v The King (1936) 55CLR 499 Acuthan v Coates (1986) 6 NSWLR 472 Saffron v DPP (1989) 16 NSWLR 397
DECISION:	Matter remitted to Local Court

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J
Thursday 30 November 2000

No 11794 of 1998

JD v Director of Public Prosecutions & 2 Ors

Reasons for judgment

1     HIS HONOUR: On 2nd September 1999 I gave judgment on a preliminary issue raised in this matter, that is, whether the learned magistrate had the power to award costs to the plaintiff after committal proceedings were terminated in his favour. I held that the magistrate had that power and I later heard submissions on the merits of the case. It is necessary to examine the circumstances which led to the plaintiff being charged with the offences involving his daughter.

2     The plaintiff married in 1985 and there were two children of that union, to whom I shall refer only by the initials of their first names. “I” was born in 1988 and “J”, to whom the charges related, was born in 1992. The plaintiff and his wife separated in that same year and the children remained with their mother at her parents’ home in Queensland. (The children later acquired step-siblings as a result of the plaintiff’s remarriage.)

3     There ensued protracted and acrimonious family law proceedings. In correspondence between their solicitors in December 1992 and January 1993, the mother made somewhat bizarre allegations about a sexual relationship between the plaintiff and a baby-sitter whom he engaged on occasions when the children were with him on access visits. These allegations were said to be based upon observations made by “I”, and the mother said that she had “I” touch her body to demonstrate what she had seen. The plaintiff denied any sexual encounter with the baby-sitter, as did the baby-sitter herself, and he expressed his concern that it was the mother who was promoting these ideas in the child’s mind.

4     Notwithstanding this, the mother surrendered custody of the children to the plaintiff in August 1993 and that position was solemnised by an order of the Family Court, with access to the mother. She resumed access visits in September 1995, initially at the plaintiff’s home in Sydney but later at her own home in Brisbane. It was during periods when the children were with her that “J” first made the allegations giving rise to the charges against the plaintiff.

5     According to the mother, in 1996 “J” began to talk about her fear of a man with a black mask on his face. In 1997, she said that the man would come into her bedroom at night, although nothing would happen when he did so. On another occasion, in the presence of “I”, the mother pressed “J” to tell her more about these nightly visits and to describe the man. When she asked “J” who she thought the person was, “J” said that she did not know.

6     During the next visit, “J” said that the man was the plaintiff and the mother said that she had assumed as much. Asked by the mother whether she thought he was doing good things or bad things, “J” replied, “Bad things”. The mother then asked “J” where he was touching her the most and invited the child to demonstrate by touching her. “J” said that she was frightened and quickly touched the mother between her legs.

7     On yet another occasion the mother sought further information from “J”. “J” said that the plaintiff would come to her bedroom with a boy who looked like her step-brother, and that he would touch the boy in the same way that he did her. She added that he would touch her in her bed or at her desk and that he left “a yucky, sticky substance” on the desk.

8     The mother approached “I” and asked her whether she was being visited by anyone from the family in her bedroom at night. “I” said that she was not. In November 1997 the mother discussed the matter with both girls together. She told “I” that the plaintiff had been visiting “J” in her bedroom over a period of time and that often their step-brother was there too. She went on to recount “J”’s allegations that the plaintiff touched both of them indecently. She asked “J” herself to tell “I” what had been occurring. “I” asked “J” whether what the mother was saying was true and “J” said that it was.

9     In January 1998, “I” telephoned the 000 emergency line from the plaintiff’s home. She told a police officer that the plaintiff had been sexually abusing her, her sister and her step-brother over the past few weeks. In fact, the children had been with their mother on an access visit over that period. The police officer gained the impression that “I” was reading something, rather than speaking spontaneously.

10     A few days later, “I” disclosed “J”’s allegations to her class teacher at Northbridge and to the school principal. The principal contacted officers of the Department of Community Services, who referred the matter to the child protection team at Chatswood Police Station.

11     On that same day “I” was interviewed at the school by a detective, in the company of the principal and a district officer of the Department of Community Services. The child adhered to the allegations she had made in the 000 call. “J” was brought to the room where the interview had been conducted and “I” told her that the detective and the district officer were there to help them. “J” became distressed, saying that she did not want to say anything, that whatever had been happening was no longer occurring, and that the plaintiff had told her that God would kill her mother and her if she told anyone about it. After some discussion, including a period when the principal spoke to “J” outside the room, it was arranged that “J” would be interviewed later in the day at an office of the Department of Community Services. That interview proceeded, again in the company of the principal and the district officer, and “J” alleged that the plaintiff would come to her bedroom, remove the bedclothes and touch her all over her body.

12     Both girls were interviewed again at the school in February 1998 by the detective in the company of the principal. After being reminded that she had told her mother and “I” about a mask, “J” described the mask which she said the plaintiff wore when he came to her bedroom. She also spoke of the “yucky” substance on her desk, again after being reminded that she had told her mother and “I” about it. In the course of her interview, “I” disclosed that the mother had given her “a run-through” of what she told the police in the 000 call. Asked how often this had occurred, she said, “Between maybe one and twenty times.”

13     It seems that neither the detective nor the district officer was trained in the joint investigation team procedures, that is, the techniques employed in the joint investigation by police officers and officers of the Department of Community Services of complaints by children.

14     The school principal took the two children into her home for a period. Care proceedings were instituted in the Children’s Court. The plaintiff was arrested and charged on 8 February 1998. His solicitor attended the police station. He declined to be interviewed but denied any wrongdoing.

15     The plaintiff’s advisers sought a report from the eminent child psychiatrist, Dr Brent Waters, supplying him with a large body of material, including the police brief of evidence. In a report of 17 March 1998 Dr Waters expressed concern about the manner in which the allegations came to light and about their investigation by the authorities. He noted that much of the mother’s dialogue with “J” was engendered by leading questions on her part, putting to the child “complex propositions which require simply an affirmation or denial”. He added, “With most increments in the evolution of the allegations, it seems that [J’s] initial response to her mother’s questions is denial, which her mother challenges at a later date with leading questions.”

16     In relation to both children, the doctor wrote:

The dialogue as represented by the mother… seems to contain a strong confirmatory bias which is most clearly portrayed in the leading questions. That is, the mother holds a suspicion about the father, and her conduct and the line of questioning is oriented towards confirming that suspicion.
The attitude of the mother towards the children and towards the father in particular… would seem to indicate that the mother was derogatory about the father and also that she was extremely anxious and smothering with the children. This is the type of behaviour which is extremely likely, in a child who is eager to please and to stay in favour with the parent, to lead the child to say what he or she perceives the mother wants to hear.

17     Dr Waters pointed out that, at least since the separation in 1992, both children had “lived in the shadow of their parents’ unresolved disputation”. He explained that young children “become extremely insecure under these circumstances”, the insecurity in this case being exacerbated by the fact that the children had virtually no contact with their mother between August 1993 and the later part of 1995. He observed that the incidents complained of by “J” “are open to the interpretation that they are a distortion of commonplace bedtime routines”, and concluded:

The presence of a fertile context is relevant in that it clearly raises the question as to whether, through a variety of mechanisms, [J] has finally made statements which had confirmed her mother’s concern, and at least in terms of the alleged abuses, are baseless. [I] has then been a willing accomplice to communicate with the authorities. The issue as to content also raises the possibility of an innocent explanation. A combination of important contextual as well as content concerns significantly shift the balance away from validity in the direction of invalidity.

18     Turning to the investigation of the complaint, Dr Waters had this to say:

The Joint Investigation Teams have in place a variety of procedures intended to generate the highest quality information from interviews with even very young children. It would appear to me that the investigation by DOCS and by the police has violated the precepts in a number of fundamental ways which jeopardise seriously the quality of the interviews. …
The interview (sic) with [J], who was six years of age at the time, have always been conducted with the school Principal present, and on at least one occasion also with her sister [I]. While on one view, [the principal] could be regarded as a support person, for two reasons I believe that this view is not supportable. First, [J] is now aged 6 years. It is unnecessary to interview with a “support person”, a child of that age who does not seem to suffer from paralysing separation anxiety. Children of this age are routinely interviewed alone and are given a coherent account of themselves and of events which have occurred to them. Obvious accommodations need to be made for the child’s age, but they are not major nor are they beyond the skills of properly trained Police and DOCS officers. Second, [the principal] has not conducted herself in a neutral supportive role as one might expect from a third party such as a teacher. The children lived in her home for two weeks and during the interviews she displayed a considerable affection to [J] and made encouraging statements to her during forensic interviews. [I] made an early “disclosure” to her, which was known to [J]. The effect in [J’s] mind would have been to see [the principal] as acting in loco parentis and in this instance as representative of the views and attitudes of the mother, particularly exemplified by of (sic) [the principal’s] conduct during the interviews. Thus the effect is of having the mother, with her confirmatory bias, in the interview.
While the conduct on the part of [the principal] was almost certainly well-intentioned, the fact that it occurred does not reflect well on the professional competence of Ms Manning or Mr Bassingthwaighte. Probably not surprisingly then, as you have properly noted, a number of the questions in the DOCS and police interviews are extremely leading.

19     Apart from the references to Dr Waters’ report, what I have written thus far amounts to no more than brief reference to some salient features of the considerable volume of material which was before the learned magistrate for the purpose of the costs application. It is sufficient, however, to demonstrate what a troubling case this was. Given his experience and expertise, Dr Waters’ views are illuminating. Nevertheless, one does not need the assistance of an expert to perceive the very real danger that “J”’s account has been contaminated by her mother, for whatever reason. The whole of the circumstances surrounding the allegations are such as to cast grave doubt upon their reliability, and they called for a most careful and sensitive investigation.

20     On 5 March 1998 the Director of Public Prosecutions took over the proceedings. On 12 March the plaintiff’s solicitor wrote to the Director, requesting that no further action be taken in the matter. That request having been declined, the plaintiff pursued a summons in this Court seeking that the proceedings be permanently stayed as an abuse of process. On 27 March Black AJ (as his Honour then was) dismissed that summons.

21     In the meantime, the Care proceedings continued. It seems that in June 1998 the mother failed to appear at the Children’s Court whilst she was under cross-examination. However, the evidence she had already given served only to confirm fears that she had contaminated the account of sexual abuse by both girls and, indeed, may well have planted the idea of that abuse in their minds. This led to a further application to the Director to terminate the proceedings against the plaintiff, to which the Director acceded after examining the transcript of the mother’s evidence.

22 The magistrate’s power to award costs to the plaintiff was limited by s41A(2A) of the Justices Act, which provides as follows:

(2A) Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following:

(a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner,

(b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner,

(c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought,

(d) that, because of other exceptional circumstances relating to the conduct of the proceedings by the prosecution, it is just and reasonable to award costs.

23     In his reasons for refusing an order for costs, the learned magistrate dealt with each of the paragraphs of that sub-section. The manner in which his Worship dealt with all of them was the subject of submissions in this Court, but argument was directed primarily to pars (a), (b) and (c).

24     As to par (a), that the investigation was conducted in an unreasonable or improper manner, his Worship said this:

What’s essentially alleged here is that that there was a failure by the police to follow protocols of interviewing young children and there was a failure to take into account, during the course of the investigations, the very real fact of the disputed Family Court proceedings in regard to the custody of the children. …

I find it somewhat difficult to see that anything done by the police was unreasonable or improper as those words are commonly accepted to mean. The fact that an investigation does not come up to optimum expectations would not put it into the category of being unreasonable or improper unless it was grossly below optimum standards, and I cannot say that that is the case here.

25     As to par (b), that the proceedings were initiated without reasonable cause or in bad faith, his Worship could see no basis for such a conclusion in light of the material which the police had gathered. He noted that the Director’s decision to terminate the proceedings was made only after consideration of the mother’s evidence in the Care proceedings in June 1998. He referred to the judgment of Black AJ, in which his Honour acknowledged the concern engendered by the mother’s behaviour but was not prepared to conclude that the prosecution was “foredoomed to failure”.

26     As to par (c), that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter, his Worship stated that the argument was that there should have been further investigations in the light of the contentious Family Court proceedings. He rejected that argument, observing that the nature of the suggested investigations was not specified. However, he acknowledged the need for an appropriate protocol to deal with allegations of child sexual assault in circumstances such as these. He added:

There can be little doubt that at the time of the arrest there were reasonable grounds to suspect the commission of an arrestable offence. Perhaps that aspect of the matter could have been handled differently and perhaps at that point the matter could have been, without arrest, referred to the Director of Public Prosecutions for advice as to how to proceed further with the matter in the light of all the circumstances.

27     In so far as subs (2A) refers to bad faith in the initiation of a prosecution and impropriety in the investigation or the conduct of the proceedings, I do not understand anything of the sort to have been argued in this application for costs. What was urged was that it was unreasonable to launch the prosecution, and that the investigation of the matter before and after the initiation of the proceedings fell below reasonable standards. I must say that, in the unusual circumstances of this case, there appears to have been some force in that submission.

28     The question whether the proceedings were initiated without reasonable cause was to be answered by reference to the quality of the evidence which the police had gathered, with an eye not only to the enquiries which had been made but also to those which should have been made. It turned upon considerations different from (although related to) those to which Black AJ had regard in determining whether the prosecution should be stayed as an abuse of process. Quite apart from the flaws in the investigation to which reference has been made, one can envisage other enquiries which should have been undertaken, preferably before a decision whether or not to lay charges was made. In particular, it could be argued that this was a case in which the authorities should have sought the advice of an expert such as Dr Waters.

29 These, however, are not matters which I need to decide: nor would it be my place to do so. Apart from certain declarations, the plaintiff seeks an order under s134 (since repealed ) of the Justices Act that the matter be remitted to the Local Court with a direction that it “exercise its jurisdiction in accordance with the judgment of this Court”: to use more familiar and time honoured language, that the matter be heard and determined according to law. At the very least, I must be satisfied that the learned magistrate fell into error in his approach to what was undoubtedly a discretionary decision. Counsel for the Director was content that I should apply the familiar principles governing appellate review of a discretionary decision enunciated in House vThe King (1936) 55 CLR 499 at 504-5, rather than determining whether there was error amounting to a constructive failure by the magistrate to exercise his jurisdiction: Acuthan v Coates (1986) 6 NSWLR 472, per Kirby P (as he then was) at 482-4; Saffron v DPP (1989) 16 NSWLR 397, per Gleeson CJ at 399 and Priestly JA at 418-9. On either test, I am of the view that the plaintiff is entitled to the relief which he seeks.

30 It is sufficient to refer to the magistrate’s reasons, quoted at par 24 of this judgment, for disposing of the argument, based upon s41A(2A)(a) of the Act, that the investigation was conducted in an unreasonable manner. His Worship appears to have assumed that this required proof that the investigation fell “grossly below optimum standards”. No such expression appears in par (a), and to apply such a test is to place an unwarranted gloss upon its terms.

31     Obviously, an investigation which fails to meet optimum standards is not necessarily unreasonable. Equally, however, it might fairly be classed as unreasonable even though it does not fall grossly below those standards. In this case, his Worship did not have to characterise the undoubted shortcomings of the investigation in that way before determining that, in all the circumstances, its conduct was unreasonable. The test is purely objective. To find that the conduct of the investigation of a particular case was unreasonable does not necessarily impugn the general competence, far less the integrity, of those responsible for it.

32     His Worship’s error in his consideration of par (a) of the subsection is sufficient to require the remission of the matter to the Local Court. However, with respect, I think it likely that his somewhat restricted view of what might be classed as unreasonable also affected his approach to pars (b) and (c). However that may be, the case requires reconsideration with an eye to all four paragraphs of subs (2A).

33     As the learned magistrate is no longer a member of that Bench, I shall consult the parties about the formal order appropriate to give effect to this judgment. If necessary, I shall also hear argument on the costs of the proceedings in this Court.

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Last Modified: 12/01/2000