R v SCARPANTONI - [2013] SADC 24

District Court of South Australia
(Criminal)
R v SCARPANTONI
[2013] SADC 24
Reasons for Ruling of His Honour Judge Stretton
10 May 2013
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - DISQUALIFICATION FOR INTEREST OR BIAS - IN GENERAL - REASONABLE SUSPICION OF BIAS
Senior Counsel for the accused made application to the trial judge that he disqualify himself from presiding over the accused's 2013 jury trial, on the basis that in 2009 prior to judicial appointment, the judge had provided legal advice to government which in part she submitted had "expressed a clear view about the credit, integrity and reliability of defence counsel", in her conduct of the trial in 2007 of her then client, a Mr Easling. The legal advice had subsequently been tendered in Parliament and had thereby become public.
The legal advice had been sought by government in response to a submission by Mr Easling's lawyers subsequent to his acquittal, seeking a formal inquiry into the investigation and prosecution of the sexual offences alleged against him. Over 3 pages of a 117 page advice, advice was given in response to Mr Easling's submission that complaint C2 had no credibility as he had made a false report of an unrelated crime. The advice recounted that defence counsel innaccurately told the judge and jury that C2 had pled guilty to the charge and on that basis was permitted to cross examine him for 9 pages on the basis that he was guilty of it, when the true situation was that his charge had not been dealt with, there was no finding of guilt against him and he had in reality been entitled not to answer any questions on the topic. This was never corrected before the jury. The advice therefore concluded that the submission that C2 had no credibility because he had made a false report was not made out, and that in fact Mr Easling secured a tactical advantage at his trial to which he was never entitled.
Beyond recounting those events, taken directly from the 2007 transcript, no judgment or conclusion was expressed concerning counsel's ethics.
Held: Comments made in a 2009 legal advice concerning one of the accused's two current counsel in a 2007 case would not cause a fair minded lay observer to reasonably apprehend that the judge might not bring an impartial mind to the resolution of trial rulings, voir dire issues, or the content of the summing up in relation to an unrelated accused in a 2013 jury trial.
Juries Act 1927 (SA) s7; District Court Act 1991 (SA) s11(2), referred to.
IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd (1999) 78 SASR 151; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; JRL, Re; Ex parte CJL (1986) 161 CLR 342; Johnson v Johnson (2000) 201 CLR 488; Livesey v New South Wales Bar Association (1983) 151 CLR 288; Raybos Australia Pty Ltd v Tectran Corporation Pty Limited [No 9] [1990] NSWCA 154; Australian National Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411; President of the Republic of South Africa v South African Rugby Football Union (1999) (4) SA 147; Vakauta v Kelly (1989) 167 CLR 568; McCreed v R (2003) 27 WAR 554; Galea v Galea (1990) 19 NSWLR 263; R v Lars (aka Larsson); R v Da Silva; R v De Fatima; R v Steve (1994) 73 A Crim R 91; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215; Willis v Magistrates Court of Victoria & Buck (1996) 89 A Crim R 273; Bakarat v Goritsas (No 2) [2012] NSWCA 36; Briscoe-Hough v AVS Australian Venue Security Services Pty Ltd [2005] NSWCA 51, considered.

R v SCARPANTONI
[2013] SADC 24
The charges

The accused is charged with manufacturing a controlled drug for sale. The offending is alleged to have occurred between January and March 2010 at Salisbury Plains.
The Trial
The accused was committed for trial and came before this court on 28 March 2011, whereupon he pled not guilty. After a number of directions hearings the matter was allocated a trial date of 4 June 2012, but the trial was not able to be reached at that time. For reasons unrelated to the substance of the charges against him in this matter, the accused’s bail was revoked on 13 December 2012. A new trial dated of 11 February 2013 was confirmed. The accused remained in custody without bail as at the date of trial.
Trial by jury
No election was made pursuant to section 7 of the Juries Act for trial by judge alone, and accordingly the accused’s trial was to proceed before a jury.
The making of and the consequences if successful of the application
When the matter was called on for trial on 11 February 2013 counsel for the accused Ms Powell QC submitted that I should disqualify myself from presiding over the trial. As observed to counsel at the time, no other judge was available to hear the trial, and accordingly were the matter not to proceed before me the accused’s trial would have to come out of the list again, to have gone to a directions hearing to be relisted some time in the future. The trial would have been delayed some, perhaps many months, all while the accused remained in custody.
Basis for the application
The basis for the application is that in 2009, in legal advice (“the legal advice”) provided by me to Government while employed as Crown Solicitor, I made certain observations about an aspect of the conduct of a trial in 2007 by Ms Powell QC.
Ms Powell QC is one of two counsel retained by the accused to appear for him at this trial.
It is submitted that “the trial judge has expressed a clear view about the credit, integrity and reliability of defence counsel … (and) … The necessary integrity of the relationship between trial judge and counsel, particularly counsel’s role as an officer of the court, is a fundamental component of a fair trial,”[1] and accordingly that “a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide”.[2]
[1] Applicant's outline of argument, paragraph 24.
[2] Applicant's outline of argument, paragraph 24.
As this is a trial by jury, the primary question of whether the Crown has proven any of the charges beyond reasonable doubt sits with the jury not the judge. Accordingly I will not be determining the primary question in the case.
Further it is plain that I do not know, have never met and know nothing about any of the parties or witnesses in the matter, in particular the accused, and there is no suggestion that there might be any possible even perceived bias concerning the accused.
The applicant submits that the fair minded lay observer might however ”reasonably apprehend that the trial judge might not bring an impartial mind in this case to resolution of issues such as questions of admissibility of evidence when relying on submissions of counsel. Further, the apprehension might also include that a similar state of mind might infect the trial judge’s directions to the jury on the defence case”.[3]
[3] Applicant's outline of argument, paragraph 11.
Events from which it is said the reasonable apprehension might arise
It is observations in that legal advice about one aspect of Ms Powell QC’s conduct of a trial that form the basis of the application. Those observations occur over three pages in the course of the 117 page legal advice to the Attorney General dated November 2009.
The Easling case
In September-November 2007 a former part time foster carer Mr Easling was tried on a number of charges alleging various types of sex abuse said to have been committed by him upon eight separate male children who had been placed with or fostered to him over a period of years. For ease of reference I will refer to it as “the Easling case”. At trial Mr Easling was represented by a team of lawyers which included Ms Powell QC and Mr Edwardson QC. The eight complainants gave evidence, and some further evidence was called said to corroborate some of the complainants. Mr Easling gave evidence on oath denying all the charges.
At the conclusion of his trial, after the jury deliberated for about 24 hours, Mr Easling was acquitted. Some verdicts were unanimous, some were majority verdicts.
The request by Mr Easling for an enquiry
Notwithstanding his acquittal, on 28 August 2008 Mr Easling’s solicitors wrote on his behalf to the Government seeking an enquiry into the investigation and subsequent prosecution of their client. That correspondence attached what is described in that correspondence as a “comprehensive submission as to why an enquiry is warranted”, said to have been prepared by Mr Easling, his solicitor and Mr Edwardson QC.
The submission was extensive and made a large number of complaints, including that there was an investigation into him at all by FamiliesSA, concerning the conduct of the investigation by FamiliesSA, about the decision to prosecute at all, and attacked the credibility of the complainants and consequently asserted the weakness of the Crown case. That is only the briefest of overview, and I refer to the description of those complaints in the legal advice for their full extent.
In very short summary, the submission alleged that on the basis of the trial evidence it was plain that the FamiliesSA investigation unit had corruptly conspired to get most of the complainants to fabricate all the allegations they had made against Mr Easling, and that notwithstanding that all the complainants’ stories were transparently false Mr Easling was (wrongly) charged by police and (wrongly) prosecuted by the DPP. The submission made numerous individual complaints under these broad topics about many aspects of the investigation, about the complainants, their evidence, their credibility, including a complaint about the very decision to prosecute and pursue the matter to and at trial. Simply for the sake of brevity I have not done justice to the extent and breadth of the submission here, the relevant issue for present purposes being that it was an extensive and comprehensive attack on the investigation, the prosecution and in particular the credibility of each and every one of the 8 complainants.
Request to the Crown Solicitor’s office for legal advice
As a result the Attorney General sought legal advice from the Crown Solicitor’s office whether, on the basis of matters arising at trial or on the basis of the written submission by Mr Easling and his lawyers a formal enquiry into the investigation of the sex abuse allegations against him, and/or a formal enquiry into the prosecution itself, was warranted.
The Crown Solicitor’s legal advice reviewing the investigation and trial of Mr Easling
As Crown Solicitor I conducted a review of the trial for the purpose of providing legal advice to the Attorney General, which such legal advice was provided in November 2009.[4] Subsequently the Attorney general made a decision to table that legal advice in parliament, and only for that reason it became a public document.
[4] Appendix A to this judgment.
As legal advice to a client, in this case Government, it did not constitute a judgment that determined any person’s rights or liabilities, nor did it constitute a decision concerning the request made by Mr Easling for an inquiry into his investigation and prosecution. It was legal advice concerning whether that request for an enquiry should be acceded to. At the time it was given, it attracted legal professional privilege, and was confidential. As mentioned to counsel in the course of argument, there was no indication to me prior to my provision of the advice to Government that it might, could or would be publicly released. As discussed with counsel in argument it is extremely rare for Government to table the legal advice it receives in parliament. There was accordingly no requirement to provide such legal advice to anyone outside Government for comment or response.
The legal advice was as to the numerous legal issues and legal matters raised by Mr Easling in his submission. As part of his submission it was argued that none of the complainants had any credibility, and in relation each of the eight complainants a number of criticisms were levelled. It was also put that the acquittals themselves indicated that none of the complainants had any credibility.
The matter said to be at the root of the application to this court for disqualification springs from the legal advice given concerning one of several matters alleged in the submission to affect the credibility of one of the eight complainants, the complainant referred to as C2 in the advice. It was one of seven matters raised concerning C2, said to indicate that C2 had no credibility.
The advice on that issue occurred at pages 49-52 of the 117 page legal advice. In light of the significance placed on it by the applicant I set it out in full. For convenience I have omitted the extensive footnoting of transcript and other references in the advice. The advice was based on an exacting, comprehensive and repeated review of the full transcript of the trial, and reflects what occurred in court as per the transcript.
The fifth matter put by Mr Easling’s lawyers that is said to adversely affect this complainant’s credibility is what is said to be a false report made by this person of an unrelated crime against him. This was said to demonstrate that this witness had a capacity to make false allegations.
This complainant was cross-examined about this matter between pages 528 and 536 of his evidence. In fact he should not have been required to answer any questions about those events at all, as it was an unresolved matter still before the courts, about which he may have been innocent, and about which he was also accordingly entitled not to answer any questions.
However, unfairly in an objective sense to this witness, he was required to answer detailed questions about the event.
Defence Counsel commenced asking questions about a matter this complainant reported to police, and then suggested that his report to the police wasn’t true.
The prosecutor then interrupted and correctly started to submit that the witness be cautioned that he not have to answer, however when part way through that submission the prosecutor appears to change his view on the basis that the matter had been dealt with. In fact he did so because Defence Counsel appears to have wrongly told him at that point that the matter had been dealt with, when it had not been dealt with at all. The transcript reveals that Defence Counsel told the Court without qualification that the complainant had pleaded guilty to the offence. Accordingly Defence Counsel then cross-examined for ten pages about the matter, attacking the witness’ credit and requiring him to answer potentially incriminating questions, on the basis of having inaccurately informed the prosecutor and the Court that the matter had already been fully dealt with by way of guilty plea in another court.
A little later, after the witness had been released, the prosecutor informed the Court that a troubling matter had arisen insofar as that while Defence Counsel had earlier informed him that the complainant’s matter had been resolved, he had now found out that in fact it had not.
Defence Counsel then told the court that she had made a mistake and had assumed the matter had been dealt with “because of the age of it”.
Defence Counsel had not said that she was making assumptions without knowing the truth of the affair, when she had inaccurately informed the prosecutor and the Court without such qualification at the outset. It is unclear from the transcript why she had specifically informed the Court that there had been a guilty plea, when she had no actual knowledge that the matter had resolved at all.
As a result of Defence Counsel inaccurately telling the court that the matter had been fully dealt with, this complainant was required to answer 10 pages of cross-examination about a matter that person faced, unresolved, before another court. Rather than reflecting on this complainant’s credibility, the evidence should not have been led at all.
As it was led, I turn to the evidence given as a result of the cross-examination in question. The following evidence was given in response to Defence Counsel’s questions.
The complainant gave evidence that he made a report of an assault at the Hindley Street Police Station on 13 January 2004, telling police that he had been walking along the footpath of Morphett Street. He said that near an empty paddock close to Whitmore Square he saw three men walk towards him, and they hit him in the head with a Bundaberg rum bottle. He said he was also kicked.
He said he then came to at about 3 am in the RAH and noticed his backpack, his belt and his wallet were missing, that there had been damage to his clothes, and that his Nokia phone worth $150 was stolen. He said that he described the appearance of his attackers to Police. He admitted that that description of events was not objectively true, although he believed it was at the time. He explained that he had no recollection of what had actually happened to him. He said that he subsequently found out that he had been pushed and fallen and been injured somewhere else and been robbed then, but had been told a misleading story by the men who were with him. He said he subsequently discovered those men had his property and that what he had been told had happened was not true. He gave evidence that at the time he told his initial story to the Police he honestly believed that that was what had happened to him. He said that he had been charged with making a false report.
The complainant’s evidence about this unrelated matter may or may not have been true. Although his answers should never have been before the jury for the reasons already indicated, once they were, it was an issue for the jury’s consideration as to whether they thought it reflected on the witness’ credibility. Much would depend on the assessment that the jury might make of this witness’ account of these matters in the witness box. If the jury believed that the witness honestly believed what he had been told had happened to him, and told the police what he honestly believed was true, then they may not have formed any adverse view of his credibility due to this matter. If they believed he had been dishonest about that to the Police and/or to them, then they would have had to consider whether that gave them cause to doubt his credibility generally or doubt his evidence about Mr Easling in particular. As mentioned earlier, juries are entitled to accept part of a witness’ evidence, and just because they might not believe one aspect of what a witness says does not mean that witness must be disbelieved on all matters. Accordingly, this matter would not have necessarily adversely affect the credibility of this complainant. It would have depended on the jury’s assessment of the truth of what the witness said on the topic.
However, the matter as not left at that. The jury were wrongly given the impression that the witness was necessarily guilty of the offence of making a false report to the Police.
It is clear that this “false report” matter had not been dealt with by the Courts at that time, and accordingly at that time when giving evidence this complainant was entitled to the presumption of innocence. Indeed if what he told the Court was true he had a complete defence to the charge. It is accordingly quite possible that the complainant was not guilty of that offence. However, Defence Counsel had told the jury at page 530, inaccurately, that he had pleaded guilty to the offence. Accordingly the jury had inaccurately been told that he had pleaded to, and hence was guilty of, that offence. When the court reconvened on the next day, unfortunately this inaccurate state of affairs adverse to this complainant’s credit was not corrected.
Accordingly the case proceeded on the wrong basis that this complainant was necessarily guilty of this offence, and wrongly that the jury could use such proven guilt to potentially adversely affect his credibility.
In this way Mr Easling enjoyed a significant tactical advantage over this witness, to which he was never entitled. Rather than this evidence adversely reflecting on the credibility of this complainant as suggested by Mr Easling’s lawyers, the evidence should not have been led, was actually equivocal, however when it was led it was presented in a misleadingly favourable way to Mr Easling. Accordingly, it did not necessarily adversely affect this witness’ credibility as submitted by Mr Easling’s lawyers.

It was no part of the applicant’s position that the contents of the legal advice were inaccurate.[5] Ms Powell’s oral submissions did however occasionally appear to verge onto that topic and to advert to possible justifications of her conduct, and to submissions about whether any part of the advice involved any inaccurate factual or other assumptions, and whether the advice went any further than reflecting the transcript of the evidence and counsel’s statement to the court. As the applicant’s formal and maintained position is that the accuracy is not an issue and that the only issue is simply what the fair minded lay observer might think on reading the advice, I do not address those submissions beyond indicating, as the topic was to some extent raised albeit not pursued, that all the observations in the advice of what occurred were footnoted with the exact transcript references where the indicated statements were made to the trial court, and drawn from exactly what both counsel told the court at the time.
[5] See Paragraph 13.1 of the Applicant's outline of argument, where it states:
"It is important to note what this application is not about; it is not about whether the concluded, stated and published reasons were correct or incorrect, justified or unjustified in the context in which they are made."
See also variously throughout submissions, eg Transcript 14 where Defence Counsel observed:
"... I submit very strenuously that this application is not about the opinion that your Honour expressed and whether what just fell from your Honour then is correct or incorrect, justified or not justified."
The application argues that defence counsel did not receive a “natural justice” letter in relation to this matter, and that the passage at pages 49-52 quoted in full above, amounted to “findings” in respect of Ms Powell QC, in particular “findings” that she had:[6]
[6] Applicant's outline of argument, paragraph 5.
·Subjected a Crown witness to questioning which was unfair in an objective sense,
·“appear(ed)..” to have misled the prosecutor about the status of a charge against the witness,
·Inaccurately informed the prosecutor and the court about the status of the charge without disclosing that she was making assumptions and without knowing the truth of the affair,
·As a result of inaccuracy on defence counsel’s part to the prosecutor and the court, the witness was subjected to improper cross-examination, and
·Inaccurately addressed the jury upon the status of the plea and derived a misleadingly favourable advantage to her client.
It should be observed that nowhere is it stated in the legal advice that the cross examination was “improper” or that Defence Counsel engaged in “impropriety”. The advice notes that after the witness had left the box, when the DPP raised the true state of affairs that the witness had not in fact pled guilty and his matter had not resolved, and DPP counsel told the court that Defence Counsel had earlier told the DPP counsel that the witness’ matter had resolved, Ms Powell QC acknowledged that had occurred, saying she had made a mistake and that she had assumed those things “because of the age of it”. In short, the advice records Ms Powell QC’s explanation that she had made an honest mistake, and does not accept or reject that explanation, nor purport to make any findings to the contrary. There is no suggestion in the advice that subsequent to realising and admitting her mistake, Ms Powell QC maintained to, or further addressed the jury wrongly concerning the status of the plea.
The advice was on its face not directed to any assessment of the propriety of Ms Powell QC’s conduct. It recorded her explanation for what she had told the court, did not reject it, and indeed did not purport to reach any conclusions about her ethics as an advocate. As is plain from the opening and closing paragraphs of the cited passage, and as reiterated per the introductory and concluding parts of the whole document, it was advice responding to Mr Easling’s submission that complainant C2 had no credibility because of the evidence given that he had “made a false report”. In that context an assessment of whether the evidence actually amounted to that, in these very unusual circumstances where it was put before the jury but it did not in fact amount to that, and exactly how that occurred at trial, was relevant.
The legal advice did not finally determine anyone’s rights and liabilities, nor was it an administrative decision that bound anyone. It was legal advice from a solicitor to a client, confidential at the time it was given, without notice that it might or would be made public.
The formal legal advice given at the conclusion of the report makes no reference to the matter raised in this court. It reads:
ADVICE
1.   Neither the trial evidence nor the submissions from Mr Easling’s lawyers disclose any evidence that the investigation of the allegations against Mr Easling was conducted with bias or impropriety.
2.   Neither the trial evidence nor the submissions from Mr Easling’s lawyers disclose any evidence that the evidence of any complainant was tainted by contamination or collusion. The trial Judge also closely considered this issue and rejected it, describing it as “merely conjecture”.
3.   There was a legitimate case to answer against Mr Easling, comprising 8 independent complainants out of a total of 60 spoken to who were placed with Mr Easling, each independently alleging they were abused. Also, both the committing Magistrate and the trial Judge independently found a case to answer.
4.   These complainants, being placements, were primarily street kids some who had been in trouble, some who had problems, some who had contact with drugs. They alleged abuse at the hands of Mr Easling occurring some years before trial in circumstances where most said they had been trying to forget the abuse. As such, there were some inconsistencies in some of their evidence as to some matters. These were legitimate issues as to the credibility of witnesses of this type. They were for the jury to consider, but none were such as to indicate that the complainants were necessarily untruthful in relation to the charged events or that they should not have formed the basis of a legitimate prosecution.
5.   It was appropriate to prosecute Mr Easling.
6.   The prosecution was conducted ethically, properly and appropriately.
7.   The acquittal of Mr Easling means that the jury had a reasonable doubt as to his guilt. It does not necessarily connote any adverse conclusions as to the conduct of the investigation or the conduct of the prosecution.
8.   The acquittal of Mr Easling means that he remains fully entitled to the presumption of innocence.
9.   Neither the trial evidence or the submissions of Mr Easling’s lawyers provide any basis for any further enquiry into the objectivity or propriety of the investigation, the decision to prosecute or the conduct of the prosecution.
The Crown submit that the matter Ms Powell QC has now identified was just one of many issues dealt with in legal advice to a client, only one small component in a much larger advice, all of which even at its highest is quite insufficient to cause a reasonable lay observer to think that over 3 years later it could cause bias against an unrelated party in an unrelated jury trial merely because one of that party’s current counsel is that same counsel.
It is the case, as discussed with counsel during the course of the application, that the matter occurs against a long, congenial and mutually respectful association as members of the legal profession and socially, with never a cross word occurring in any context over a 33 year professional and social association.[7] Further, whilst it is not strictly relevant to this application, I am sure any fair minded observer would observe that, this application has, consistent with that long association, itself proceeded in a polite and respectful manner between bar and bench. For example, there has been no hint of the kind of conflict or conduct between bar and bench that was one of the issues in IOOF Australia Trustees Ltd v Seas Sapfor Forests Pty Ltd[8] that was submitted in that case, albeit unsuccessfully, to ground an apprehension of bias. Unlike in that case,[9] in this case counsel have been given every opportunity to put their case as fully as they wish.
[7] Transcript 10-11.
[8] (1999) 78 SASR 151.
[9] (1999) 78 SASR 151 at 190.
It must also be observed, again as discussed with counsel during the course of the application, that the event referred to in that small portion of the lengthy legal advice in question, must be seen in perspective. It occurs periodically in many criminal trials that counsel make a mistake concerning some aspect of their approach to a witness, perhaps about the witness’ status or position, perhaps about what the witness said prior to trial, perhaps about something else to do with that witness. Objection is taken, something inaccurate might initially be said about the witness (reflecting counsel’s mistaken view about that witness), counsel then or later admits their mistake and explains why they made the mistake. Sometimes the problem is properly corrected before the jury, sometimes it isn’t, either because it can’t be or because it was overlooked, particularly in a busy, lengthy, complex and hard fought case with a plethora of other ongoing issues. It is not an unheard of event, and counsel and the bench accept that with the best will in the world, no-one is perfect and mistakes are occasionally made, and sometimes those mistakes are not corrected, particularly in a very lengthy and complex trial as was the Easling case indeed involving many complainants, a plethora of ongoing issues and which ran for several months. The length and complexity of the Easling case would be plainly apparent to any reader of the 117 page advice in question. It is accepted that such mistakes can occasionally happen, without it being any reflection at all upon the overall reputation of counsel in question.
It might even be observed that it is not unheard of for trial judges themselves to pull up or informally reprimand counsel if they step over what the judge may consider to be an ethical line during the course of a trial, without it being suggested that the judge might immediately become biased against that counsel’s client, must immediately disqualify themselves and withdraw from the case, or as seems to be the corollary of what is suggested in this case, decline to preside in all or any future trials involving that advocate.
Here, of course, no conclusions were expressed about counsel’s honesty or subjective motivation for what they did in court. Further, counsel’s acceptance of and explanation for what they did was cited, that explanation was not adjudicated upon, and no conclusions were expressed about the ethics or professionalism displayed. No conclusion was reached and expressed as to whether any ethical line had been crossed.
The test for disqualification
The test for disqualification is whether in the words of the High Court:[10]
[10] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-5; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48.
“… a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.”
Here of course, the primary question is the guilt of the accused, which will be determined by a jury. The submission therefore is restricted to the proposition that an impartial mind might not be seen to be brought to rulings on admissibility of evidence or possibly directions to the jury in the course of the summing up.
The High Court is also clear that the apprehension of bias must be a real and not remote possibility.[11]
[11] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 345.
The High Court added that not only must the fair minded lay observer have a reasonable apprehension of bias, but there must also be a connection between that apprehension of bias and the feared deviation from deciding the case on its merits.
In this case the events are years apart and involve different cases and unconnected parties. This case involves a description over three years ago by a lawyer advising his client, of events involving Ms Powell QC in a case in which the lawyer (now the judge) was not involved, over five years ago.
So here, the law requires that for a judge to be disqualified, a fair minded lay observer regard it as a “real and not remote possibility” that not only the events some years ago give rise to the relevant apprehension, but also that there is a connection with the current case such that the events of years ago result in there being a real and not remote possibility that it might cause a departure from impartial decision making in the current case on questions of admissibility of evidence and/or the summing up.
Judges should sit unless there is an established basis for them not to do so
A further general principle should be borne in mind. Within a court system, as is the case with the District Court in this state, cases are usually assigned to available judges on an essentially random basis by administrative staff unconnected with individual judges, subject in the case of the District Court to the overall administrative supervision of the Chief Judge.[12] As a general rule judges should preside over the cases they have been allocated, and should not disqualify themselves unless there is an established basis to do so. This is important for a number of public policy reasons, including the efficient disposition of cases, to avoid parties seeking a more sympathetic adjudicator to their cause, and to prevent parties from using such applications to obtain strategic advantage from the delay that might be consequent on a disqualification.[13] None of those particular examples cited are suggested to be the case here, nonetheless the important principle remains that in the ordinary course a judge should not disqualify themselves from a case unless there is an established basis to do so.[14]
[12] District Court Act 1991 (SA) s11(2).
[13] JRL, Re; Ex parte CJL (1986) 161 CLR 342 per Mason J at 352; Johnson v Johnson (2000) 201 CLR 488 at 44 per Kirby J; Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294.
[14] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294.
The “fair minded lay observer”
The law says that the fair minded lay observer has certain characteristics, for example the High Court has made it clear that:
·The observer is taken to be rational and reasonable;[15]
[15] Johnson v Johnson (2000) 201 CLR 488 at 12 per Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ and at 80 per Callinan J.
·The observer is neither complacent nor unduly sensitive or suspicious;[16]
[16] Johnson v Johnson (2000) 201 CLR 488 at 44 per Kirby J citing R v S (RD) [1997] 3 SCR 484 at 505.
·Whilst not a lawyer, the observer is not wholly uninformed and uninstructed about the law in general, the legal process or the issue to be decided;[17]
[17] Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 9) [1990] NSWCA 154; Australian national Industries Ltd v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411 at 419; Johnson v Johnson (2000) 201 CLR 488 at 53 per Kirby J and at 80 per Callinan J.
·The observer is aware of the context and the entire circumstances;[18]
[18] Johnson v Johnson (2000) 201 CLR 488 at 55 per Kirby J and at 82 per Callinan J.
·The observer is aware that the observed is a professional judge whose training, tradition and oath or affirmation require the judge to discard the irrelevant, the irrational and the prejudicial,[19] is aware of the strong professional pressures on such adjudicators reinforced by the facilities of appeal and review to uphold traditions of integrity and impartiality,[20] and the observer is presumed to approach the matter on the basis that ordinarily a judge will act so as to ensure both the appearance and the substance of fairness and impartiality although the observer is not presumed to reject the possibility of it;[21]
[19] Johnson v Johnson (2000) 201 CLR 488 at 12 per Gleeson CJ and Gaudron, McHugh, Gummow and Hayne JJ.
[20] Johnson v Johnson (2000) 201 CLR 488 at 53 per Kirby J, citing R v S (RD) [1997] 3 SCR 484 at 533; President of the Republic of South Africa v South African Rugby Football Union (1999) (4) SA 147 at 177.
[21] Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 299.
·The observer is not presumed to have any personal knowledge of the character or ability of the observed.[22]
[22] Livesey v New Sout Wales Bar Association (1983) 151 CLR 288 at 299.
Discussion
In Livesey v New South Wales Bar Association[23] and Vakauta v Kelly[24], the courts concerned had expressed strong and concluded views about the credit of witnesses who were about to appear before them, and the High Court held that such a stance would cause the reasonable apprehension of bias. Essentially, where the totality of the circumstances indicated that there had been a concluded prejudgment about the credibility or professional character of a witness or party where that credibility was a live issue in the current case, the court rightly said that there will be a reasonable apprehension of bias. In Johnson v Johnson[25] a family court judge commented that when assessing the conflict of evidence between two implacably opposed Family Court litigants the judge would likely look for and place reliance on any independent evidence, and it was suggested this might amount to prejudgment concerning the credibility of both parties, amounting to bias. The High Court held the comments did not amount to that. In McCreed v R[26] the Western Australian Court of Criminal Appeal dealt with a situation where a trial judge had 11.5 years before, prosecuted the accused for wilful murder. The court held that sometimes a judge having previously prosecuted one of the current litigants will give rise to a reasonable apprehension of the possibility of bias, but here in all the circumstances, in particular the passage of time, it did not.
[23] (1983) 151 CLR 288.
[24] (1989) 167 CLR 568.
[25] (2000) 201 CLR 488.
[26] (2003) 27 WAR 554.
In this case there is no suggestion of any possibility of bias concerning a party or any prospective witness. Rather, it is submitted that observations made of events in the 2007 Easling Case in the course of providing legal advice to a client in 2009, that discussed the conduct of one aspect of the cross examination of one witness in that case by one of the accused’s two current counsel in the present unconnected case at bar, raises the reasonable apprehension that the judge might be biased in the determination of voir dire issues concerning the admissibility of evidence against the accused, or that it might adversely affect the content of the impending summing up to the jury so far as the accused is concerned.
In essence, the argument is that the adverse view said to have been taken concerning Ms Powell QC’s conduct in conducting part of the cross examination of one witness in 2007 and more particularly her comments to the court at that time about the witness’ status, expressed in legal advice to a client in 2009, might reasonably possibly be apprehended to infect trial rulings that might be made on evidential issues in the unconnected current trial of an unconnected accused, or adversely affect the fairness of a summing up that might be delivered concerning that unconnected accused.
As the South Australian Full Court said in IOOF Australian Trustees Ltd v Seas Sapfor Forests Pty Ltd,[27] (“IOOF”) authority is not so easily found in relation to the issue of the attitude of a judge to counsel appearing for a party.[28] Such authority as there may be, such as the IOOF case, tends to relate to situations where significant conflict and/or animosity occurs between bar and bench in the very case itself, from which it is suggested the judge should accordingly disqualify himself, or to situations where at least a current adverse view of counsel is expressed, based on either current or current plus past events involving that counsel.
[27] (1999) 78 SASR 151.
[28] The Chief Justice discussed the case of Galea v Galea (1990) 19 NSWLR 263 where a trial judge exhibited a high degree of impatience with a party's answers and was indicating he was not telling the truth as required and directed comment to the party's counsel; also in that context, R v Lars (aka Larsson); R v Da Silva; R v De Fatima; R v Steve (1994) 73 A Crim R 91 where there were a series of angry exchanges between the trial judge and counsel in front of the jury which became quite personal; Aussie Airlines Pty Ltd v Australian Airlines Pty Ltd & Qantas Airlines Ltd (1996) 65 FCR 215 where there was a particularly positive association between the judge and counsel causing the other side to seek disqualification; Willis v Magistrates Court of Victoria & Buck (1996) 89 A Crim R 273 where inter alia a Magistrate in the course of submissions suggested that because a witness was a client of a particular law firm that that was grounds enough to disbelieve him.

According to the Full Court in IOOF, the trial judge, during the course of the trial itself, accused counsel in the case at bar of filibustering, using improper tactical devices, and of acting without the instructions of his client. The trial judge also threatened costs orders against counsel and his instructing solicitor personally, took too strong an adverse view of disqualification applications made to him, thought that counsel was acting irresponsibly, wrongly dealt with the bias application in a preremptory manner wrongly precluding counsel from pursuing it, and criticised counsel in a manner that became unnecessarily personal.[29] All that was said to have occurred in the very case from which disqualification was sought. The judge also accused counsel of having behaved unprofessionally in a case some years before. The Full Court indeed made some comment about the appropriateness of that judge’s approach but held that there was however no basis to conclude that any of this had caused an apprehension of bias against counsel’s client, the party.
[29] (1999) 78 SASR 151 at 192.
That case emphasises that conflict, hostility, even antipathy towards counsel, including what can only be observed in that case as very adverse expressions of judicial comment and opinion about the conduct, tactics and ethics of counsel, are no basis in themselves for a judge to disqualify themselves. The issue is whether, as a result, bias might exist, or be perceived to exist, against the parties.
The Chief Justice, with whom the other members of the court concurred expressed it thus;
The fair-minded observer is to be taken to understand that the judge has sworn an oath to do justice. The observer will understand that the judge is trained to and will differentiate between counsel and client, and between counsel and the issues to be decided. The observer will appreciate that the judge understands that counsel is an advocate for the client, and puts the advocate’s submissions in relation to the issues before the judge. The judge does not identify counsel with the client or with the issues falling for decision. The observer will understand that the judge routinely deals with cases in which different counsel appear and towards whom the judge has sometimes favourable and sometimes unfavourable views. The judge will decide the case fairly whatever the judge thinks of counsel.
The Chief Justice concluded that;
To put it succinctly, but in a very general way, the observer will be aware of the role of judge and counsel, of the way in which judge and counsel interact over time, of the standards to which a judge and counsel should adhere and of the fact that, from time to time and under the stress of the occasion, there will be occasional departures from those standards which have no effect on the ability of the judge to deal with the case in an impartial and unprejudiced manner. The issue for the fair-minded observer will be whether, in the particular case, the conclusion is that the attitude of the judge to counsel, or the relationship between judge and counsel, has become such that there is reason to think that that attitude or relationship is now affecting the judge’s approach to the client or to the issues in the case.
In Barakat v Goritsas (No 2)[30], the NSW Court of Appeal considered a trial where very considerable friction arose between bar and bench. The Court said:
[30] [2012] NSWCA 36.
… significant reliance was placed upon language used by the judge in the course of exchanges with senior counsel for the applicants which were said to reflect scepticism and later disdain for the applicants’ case. Those submissions, however, did not squarely engage with the critical issue. The fair-minded lay observer must be taken to have heard the whole of the exchanges between counsel and the bench on the relevant days, with some understanding of what was appropriate conduct for both counsel and the court and what was not. The fair-minded lay observer is unlikely to apprehend bias against one party merely because the trial judge describes the behaviour of counsel for that party as disgraceful or tendentious, unless the observer would consider such epithets inapt to the extent of being unreasonable and indicative of an inability to bring an impartial mind to bear on the issues in dispute. For example, to describe as “tendentious” a submission which did not come to grips with the issues which has been identified, or needed to be identified might be seen as reasonable, particularly if counsel had been given more than one opportunity to address the issue. To describe the labelling of a submission by counsel as “tendentious” as “a very serious accusation” might itself fall into the characterisation it sought to dismiss: applicants’ written submissions at par 80. That is because the complaint failed to identify in what way the “accusation” was not reasonable, given the context in which it was used.[31]
[31] Barakat v Goritsas (No 2) [2012] NSWCA 36 at 13.
…
Fifthly, there remains for consideration the complaint that the judge exhibited “an animus” against senior counsel for the applicants, variously describing Mr Branson’s conduct as “disgraceful”, his submissions as “tendentious” and “grossly improper” and as providing a “very much less than candid characterisation of what occurred”: written submissions, par 53(bb).[32]
[32] Barakat v Goritsas (No 2) [2012] NSWCA 36 at 49.
The reference to submissions as “tendentious” has been noted above, in their immediate context. The connotations of that term may be a matter for debate, as may the justification for counsel’s reaction to its use by the judge. However, read in context, as it appears on the transcript, the comment cannot fairly be said to demonstrate “animus”, in the sense of personal animosity or hostility to senior counsel. Much less can it be said to manifest to a fair-minded observer an inability or unwillingness to deal with the contempt charge on its merits.[33]
[33] Barakat v Goritsas (No 2) [2012] NSWCA 36 at 50.
…
In this case, the judgment of Adams J of 6 February 2012, after referring to the passage in the transcript of 6 December set out above, up to the words “[t]he present matter as I see it…”, proceeded as follows, at [27]:
“As I recall what then happened (which is not accurately or completely recorded in the transcript) I was then interrupted by Mr Branson in a raised voice saying words to the effect, ‘Will you give me procedural fairness?’ I attempted to repeat what I said but Mr Branson again interrupted me asking the same question in an even louder and more peremptory tone. I asked him not to interrupt me, raising my voice somewhat so that he would hear me. He simply said very loudly, ‘Your Honour need not raise your voice, I am concerned at the lack of procedural fairness-‘ and I then told him to sit down. He said in an angry voice, ‘No I won’t’, adding (recording somewhat incorrectly in the transcript) ‘Will your Honour give me procedural fairness now’. I said, ‘You are being impudent’. He repeated again in a raised and angry tone, ‘Is your Honour going to give me an opportunity…’ at which time I interrupted and told him to leave the Court. He said angrily, ‘I won’t’ and sat down.”[34]
[34] Barakat v Goritsas (No 2) [2012] NSWCA 36 at 61.
His Honour then set out the further passage in the transcript up to the reference to disgraceful conduct and commented that the apology and comment about generosity “were made in a loud, angry and ironic tone”. The judgment further noted that Mr Branson had provided an unequivocal apology for his conduct by letter after the court adjourned: at [28].[35]
[35] Barakat v Goritsas (No 2) [2012] NSWCA 36 at 61.
…
Neither the expression of views in respect of the issues relevant to the contempt charge, nor the exchanges between counsel for the applicants and the judge during the course of interlocutory hearings, taken individually or cumulatively, are sufficient to demonstrate that a fair-minded lay observer might hold the opinion that the judge might not determine fairly the issues that arise on the contempt charge, on the basis of the evidence and arguments as to the facts and law presented to him.[36]
[36] Barakat v Goritsas (No 2) [2012] NSWCA 36 at 66.
The only case I could locate where the application to disqualify was based solely on an earlier event involving counsel’s conduct is Briscoe-Hough v AVS Australian Venue Security Services Pty Ltd.[37] In that case, some two years prior to the case in which that counsel asked the trial judge to disqualify herself, counsel had appeared before that same trial judge dishevelled, under the influence of alcohol, had fallen from a chair in the courtroom and then made inappropriate advances towards a court reporter. As a result the judge had on that earlier occasion written to the Bar Council notifying them of the incident, after which disciplinary action had been taken and counsel had been reprimanded. The trial judge dismissed counsel’s application that she disqualify herself in the new case, stating that:
[37] [2005] NSWCA 51.
The incident you refer to happened well over two years ago. It has nothing to do with your competency, or the way in which the matter was dealt with. I see no reason to disqualify myself in the circumstances.[38]
[38] [2005] NSWCA 51 at 9.
The NSW Court of appeal upheld the ruling. Sheller JA said:
Sadly, no doubt from time to time judges are required to reprimand barristers for their behaviour in Court, though rarely, I would hope, for behaviour of the sort described here. If such a reprimand is given appropriately and appropriate action is taken, the barrister concerned cannot for that reason insist that, as a result of what occurred, the judge in question should thereafter disqualify him or herself from sitting in cases where the barrister is briefed on grounds of apprehended bias. The lay observer aware of those facts could not reasonably have apprehended that the judge might not bring an impartial mind to the resolution of the question in the particular case in which the barrister was to appear and which the judge was required to decide. Otherwise, by behaving badly to the point of being properly reprimanded by the trial judge, a barrister could compel the judge to disqualify him or herself while the barrister remains. In Dovade Pty Ltd v Westpac Banking Group (1999) 46 NSWLR 168 at 188-9 this Court said:
“A claim of apprehended bias should be considered in the context of the judicial function and the public perception of it. There is a presumption that public officers have acted with honesty and discretion: Broom’s Legal Maxims, 10^th ed at 642. In the case of a judicial officer, this is no empty form. It is reinforced by the accountability necessarily inherent in the public processes of litigation and the disappointed litigant’s right of appeal. Every judge swears to ‘do right by all manner of people according to law without fear or favour, affection or ill-will’. This public oath is not a talisman against error, but it forms the constant back-drop to the way in which each judge functions on and off the bench. The history and reach of the oath were discussed by Sir Gerard Brennan on his swearing in as Chief Justice of the High Court of Australia: see 183 CLR at ix-x. The level of public confidence in the judiciary is based upon experience and a general perception of the rule of law.”[39]
Conclusion
In the final analysis, I must apply the test for disqualification articulated by the High Court in the cited cases, assisted in the distillation of that test by judgements in cases such as in IOOF, Barakat v Goritsas (No 2) and Briscoe-Hough v AVS where the suggested apprehension of possible bias against a party is said to flow only from comment or views expressed about the party’s lawyer.
In the circumstances of this case, the suggested apprehension of bias in the conduct of this 2013 jury trial concerns a 2009 comment in confidential legal advice discussing something that one of the accused’s two current counsel is said to have done in a 2007 trial. It was for the purpose of advising a client on the strength of the evidence in that 2007 trial. It formed a very small part of the 117 page advice to the client. It expressed no ultimate conclusions concerning counsel’s ethics or professionalism.
Further, and perhaps more importantly, nothing occurred which might indicate to the fair-minded lay observer that the comment made in the unconnected 2009 legal advice about the unconnected 2007 case might conceivably affect the court’s current assessment in 2013 of voir dire issues or the summing up of the case to the jury.
Applying the test articulated by Doyle CJ in IOOF, the comments made in 2009 legal advice about what one of the accused’s two legal counsel is said to have done in an unconnected 2007 trial do not disclose an attitude to that counsel that the fair minded observer might reasonably suspect would affect the court’s current assessment of voir dire issues in the present trial, the content of any future summing up, or any other questions that might reasonably be anticipated to arise for judicial determination in the trial.
[39] [2005] NSWCA 51 at 3.
In those circumstances I am obliged to continue hearing the case, and the application for disqualification must therefore be dismissed.

REVIEW OF THE
EASLING TRIAL
SIMON STRETTON SC CROWN SOLICITOR
November 2009
INDEX
Request for enquiry..................................................................................................... 1
Basis for enquiry ......................................................................................................... 1
Background ................................................................................................................. 1
Scope of this review .................................................................................................... 2
The presumption of innocence.................................................................................... 3
The genesis of the allegations .................................................................................... 3
The supply of the initial investigation outcome and evidence to the department ........ 7
The decision to further investigate .............................................................................. 8
The conduct of the SIU investigation ........................................................................ 11
Alleged Absence of Investigation Records ............................................................ 22
Committal Material................................................................................................. 30
The Credibility of the Allegations ........................................................................... 32
Complainant C1..................................................................................................... 36
Complainant C2..................................................................................................... 39
Complainant C3..................................................................................................... 59
Complainant C4..................................................................................................... 70
Complainant C5..................................................................................................... 80
Complainant C6..................................................................................................... 89
Complainant C7..................................................................................................... 96
Complainant C8................................................................................................... 101
Summary of the strength of the prosecution case and the defence case ............... 107
Conduct of the Crown case..................................................................................... 111
The decision to prosecute ................................................................................... 112
Conduct of the pre-trial arguments and prosecution witnesses........................... 112
Crown approach to the defence case .................................................................. 113
Crown address .................................................................................................... 116
Conclusions re the conduct of the prosecution case ........................................... 116
Advice ..................................................................................................................... 117
I confirm receipt of your request that I provide you with advice on allegations made by Mr Easling concerning the probity of an investigation of him, and on the subsequent unsuccessful prosecution of him for child-sex offences. Mr Easling has called for a formal enquiry, and this call has been repeated by Mr Easling’s local member.
R EQUES T FOR E N QUI R Y
Under cover of a letter dated 25 August 2008 from his solicitors Iles Selley, Mr Easling provided a detailed post-trial written submission seeking an enquiry into “the investigation conducted by the Special Investigations Unit of the Department of Families and Communities and his subsequent prosecution”. Mr Easling’s local member also wrote in support of his constituent’s call for an enquiry.1
B ASIS F O R ENQUIRY
The document provided under cover of the letter dated 25 August 2008 is
Mr Easling’s “comprehensive submission as to why an Inquiry is warranted”.2
Accordingly this submission is the encapsulation of the matters of complaint. It has been prepared by Mr Easling, Mr Selley and Mr JD Edwardson QC. Having been prepared by both Mr Easling, his solicitor, and senior counsel, it can be accepted that the document will put Mr Easling’s complaint comprehensively and at its highest.
B AC KGR O UN D
At the time of trial in September 2007 Mr Easling was a 49 year old unmarried man. In 1989 he had become informally involved in youth work in various contexts,3 becoming formally registered as foster carer in 1990.4 This role continued until 2004 when as a result of the evidence against him, his foster care registration was cancelled.5
The charges against Mr Easling sprang from a series of allegations of abuse by some nine children who had variously and separately been placed in his care at different times over a period of years. Most if not all of those complainants did not know each other, nor was it suggested that they had had contact concerning these matters, nor put their heads together. There was no suggestion that they had colluded at any time. A number of the complainants maintained that in other respects Mr Easling was good to them, that they bore him no ill will and indeed that they would prefer not to be called to Court to be giving evidence against him.
1 Letters dated 23 and 24 July 2008 from the Hon Ian Evans MP JP, member for Davenport. The correspondence also notes that the matter has been raised in Parliament.
2 Mr Easling’s solicitor indicates this by letter dated 8 August
3 Mr Easling’s evidence p 1812
4 Mr Easling’s evidence p 1828
5 Mr Easling’s evidence p 1972
The Director of Public Prosecutions tendered no evidence at the Committal hearing in relation to one complainant, after having proofed that complainant,6 leaving eight separate complainants. These eight remaining complainants gave evidence, and some supporting evidence was also given in relation to some complainants.7 Each complainant substantially maintained their allegations of abuse on oath and did so through many hundreds of pages of cross-examination by Mr Easling’s two senior counsel. Some witnesses had poor or inconsistent recall of historical detail concerning some aspects of the abuse they had suffered, or in relation to details such as dates or the order of events. The prosecution submitted this was the entirely understandable consequence of natural memory issues and abused foster children trying years after the event to recall matters they had hitherto been trying to forget,8 while the defence submitted it was indicative that all the evidence had been concocted.9
Mr Easling admitted contact with all the complainants but denied all the allegations of abuse. He gave evidence in the trial, called “good character” evidence10 and called some supporting evidence in relation to some of the allegations.11
The jury took approximately 24 hours to consider their decision, and on 23 November
2007 returned verdicts of not guilty. 6 counts were by majority verdict, and 12 counts were by unanimous verdict.
S COPE OF THIS REVIEW
I have reviewed the trial of Mr Easling, reviewed the transcript of evidence of all witnesses including their extensive cross-examinations by Mr Easling’s two senior counsel, together with all submissions and the addresses of counsel, and the summing up of the case and the evidence by the trial judge. I have also reviewed the detailed post-trial written submission by Mr Easling’s lawyers dated 25 August 2008, which such submission seeks a further enquiry into the investigation conducted by the Special Investigations Unit   (“SIU”) of the Department of Families and
6 See footnote 2 on page 12 of Mr Easling’s post-trial submission to the Attorney General
7 For example, a social worker who attended Mr Easling’s house early one morning corroborated the account of one complainant that that complainant was in Mr Easling’s bed that morning. Mr Easling denied aspects of this evidence.
8 For example see prosecution address at pp 2112, 2115-6, 2128, 2130, and in particular pp
2138-9, 2148, and 2154
9 For example see defence address at pp 2240-1, and similar observations also made about subsequent witnesses
10 A person who has no previous convictions, or is otherwise of “good character” is entitled to call evidence that they have “good character”, and the jury is entitled to take that into account
when determining whether to convict
11 For example, that some others who attended his home at other times did not see some items that some complainants allege were used to encourage them to submit to Mr Easling’s
abuse, for example a wooden massage roller and a bottle of “Mississippi Moonshine” alcohol
Communities (“the department”) that in part led to these charges, and his subsequent prosecution.
This advice addresses whether, on the basis of matters arising at trial, or on the basis of the written submission by Mr Easling’s lawyers, a further enquiry sought by Mr Easling into both the SIU investigation and the prosecution itself is warranted.
T HE P R E S UMPTION OF IN N O CE NCE
A large part of the call for a further enquiry is based on submissions by Mr Easling’s lawyers that the case was inherently weak, should never have been prosecuted or that the jury’s verdict effectively established certain facts and matters that demand a further enquiry. To fully and fairly consider these submissions and to advise upon them, it is accordingly necessary to review and advise on the strength of the evidence, the possible reasons for and possible effect of the acquittal. In doing so, comment may be made about the strength of the evidence, the course of the trial and matters which may have been a factor in the jury reaching their verdict.
It must however be clearly understood that Mr Easling was acquitted of all charges. He therefore remains fully entitled to the presumption of innocence, and is entitled to be regarded as innocent. Nothing herein should be taken to suggest otherwise.
Comment as to the evidence, the allegations, the course of the trial and the acquittal are only made as those matters are proferred and argued by Mr Easling’s lawyers to support a further enquiry.
There should be no doubt however that Mr Easling has been, is and remains fully entitled to the presumption of innocence.
T HE GENESIS OF THE ALL EGATI ONS
The evidence reveals that the allegations came to light in the following way.
C1 was born in 1987 and was put into foster care in 1990.12 He was first placed in respite care with Mr Easling in June 2000,13 and between about 2001 and 2003 he had considerable contact with Mr Easling.14 C1 had had issues with his sexuality and told the court that he had ultimately come out as a homosexual.15
C1 had a close friend, XXXXX . In private correspondence with her discussing issues to do with his sexuality, he disclosed sexual contact that he had had with his foster
12 C1 evidence p 1230
13 C1 evidence p 1230
14 C1 evidence p 1233
15 C1 evidence p 1281
carer Mr Easling. Ultimately XXXXX informed the school counsellor XXXXX , who reported the matter to the police.
C1 was cross-examined extensively about his school life and this disclosure. I summarise that cross-examination in some detail, as this formed the basis upon which Mr Easling’s lawyers suggested that C1 evidence had been concocted firstly to his friend, then to the school counsellor, then to the police, and ultimately on oath to the court over many days of evidence.
C1 described how in 2002 he was doing Year 10 but was also doing a number of Year 11 subjects. He said he was doing well academically and got excellent marks. Ultimately he got a very good tertiary entrance number after having been through senior schooling at XXXXX High School.16 He said he was always rated very highly at school in the majority of the subjects but he was being harassed and teased in
2000 and 2001.17
He did not agree that he was troubled with his sexuality but said he hadn’t come out during his secondary school years. He maintained he wasn’t necessarily hurt by the taunts.18 Subsequently at University he became a Sexuality Officer, to assist fellow university students with problems about their sexuality and coming out as a homosexual. It was a representative and advocacy role for them.19 Whilst he did not initially talk to her about it, he said his stepmother was not judgemental about homosexuality nor did he think she would have been upset if he had told her about homosexual inclinations. He said he was suffering some confusion to a degree.20
He did say that if he had come out and said he was gay at XXXXX High School in
2002 he would have been criticised as it was a homophobic environment.21
He said he knew that because of the way he’d previously been treated. He initially said in cross-examination that he didn’t seek to discuss this with anyone in 2002. He denied accusations by defence counsel   that he was trying to blame his homosexuality on somebody else. He initially said that while he was close to fellow student XXXXX , he wasn’t particularly anxious to nor did he talk to her about it in
2002. As far as he recalled, everything was going well in 2002. However he did eventually speak to her about a homosexual experience, which is the matter that is before the Court. It was at the latter end of 2002.22 He wrote a series of letters to her, and she wrote back. He told her about being sexually involved with his foster carer,
and the things that happened to him and asked her not to tell anybody. He agreed
16 C1 evidence p.1280
17 C1 evidence p 1281
18 C1 evidence p 1283
19 C1 evidence p 1282
20 C1 evidence p 1284
21 C1 evidence p 1303
22 C1 evidence p 1304
when it was put to him that what she had recalled was in about 2002. He said that if she had said it was September, he would accept that.23
He accepted that emails of the time also demonstrated the sort of relationship he had with Mr Easling, who he described as a sort of mentor and who tried to assist in relation to some activities that might be interesting and which might develop him, and he did look to him for assistance.24
When it was put to him that he did not indicate strong worries about the alleged sexual relationship with Mr Easling at the time, he said:
“I don’t necessarily think that it wasn’t about not having any worries about it, and I suppose I can outline that the sexual abuse had occurred prior to the relationship that Tom and I had over the course of 2001 and 2003. In my mind, that had obviously been quite a confusing time but, in addition to that, it had become as a young person, that type of activity had become the norm, and that’s why I don’t necessarily have any qualms about attending the residence of Tom, because in my mind, that sexual activity had become the norm, it was acceptable in my mind and it wasn’t anything I saw as putting myself in danger or anything that I thought was getting myself in trouble”.
He agreed that whilst he wrote to XXXXX about the sexual relationship, he didn’t want her to tell anyone else about it.25
He replied to further questions put in cross-examination by saying that he couldn’t recall giving XXXXX the impression that it was a terrible relationship whereby he was being abused and that it was all over. The defence suggested and he strongly denied giving her an impression to that effect and he rejected the accusations of defence counsel that he didn’t want her to be saying anything about it because he allegedly knew it was a lie. He maintained that he didn’t at that stage and at the date of trial still didn’t want Mr Easling to get into trouble with the authorities.26
Having written these letters to her, on 9 September 2003 he said he had a phone call from XXXXX and she told him that she’d gone to the School Counsellor XXXXX, and told XXXXX what he had told her. He said that was of extreme concern to him because someone in authority had found out what he’d said. He said he didn’t understand about mandated reporting at that stage. He was concerned that her saying this would have implications for him because what he had said in confidence to her had been taken out of his hands and put into the public arena.27 XXXXX then spoke to him and he told her about the matter.28 XXXXX then informed the police.29
23 C1 evidence p 1305
24 C1 evidence p 1346
25 C1 evidence p 1347
26 C1 evidence p 1356
27 C1 evidence p 1357
28 C1 evidence p 1359-1361, XXXXX 's evidence p 1420
29 XXXXX ’s evidence p 1416
The police later attended and C1 then told them about the matter.30 XXXXX said that
C1 was also anxious about his foster mother being notified.31
The matter was then investigated by Detective Conte from the then Child Exploitation Investigation Section of SA Police. Upon the commencement of the Sexual Crime Investigation Branch in October 2004 Detective Conte moved to that branch.32 I assume that branch took over from the earlier section.
At their request, C1 gave a formal statement to police in October 2003,33 and Mr Easling was interviewed about 10 days later. Mr Easling denied the sexual abuse put to him.34 In light of there being no independent evidence of corroboration at that time,35 in late 2003 the matter was filed.36
It is nowhere suggested that there was any fault with this investigation or the collection of this evidence. The police had an apparently credible complainant on the one hand, and on the other hand an apparently credible person being accused and making full denials. They had no independent evidence to corroborate or refute the allegations.
Accordingly whilst in my view the Police would have been justified in charging Mr Easling at that time on the basis of the ostensibly credible albeit uncorroborated evidence of C1,37 it was legitimately within their discretion to take a conservative approach and do what they did, to file the matter pending any further supporting evidence coming to hand.38
30 C1 evidence p 1360-61, XXXXX’s evidence p 1421
31 XXXXX ’s evidence p 1421
32 Det Conte's evidence p 1720
33 C1 evidence p 1365
34 Det Conte’s evidence p 1729
35 Det Conte’s evidence p 1732
36 Det Conte’s evidence p 1724
37 There is no legal requirement for independent corroboration of an allegation of sexual abuse, nor is the judge required to warn juries that there is any unsafeness in convicting a person of a sexual offence of this type in the absence of some other corroboration, see
section 34i(5) of the Evidence Act 1929 as amended. In Longman v R(1989) 168 CLR 79
however the High Court interpreted this section narrowly and maintained that a warning could be given to avoid a perceptible risk of miscarriage of justice arising from the circumstances of a case. Where there is a substantial delay between the alleged assault and the report, say where the accused has lost the means of testing the complainant’s allegations by the effluxion of time, a warning can be given, see Hickman v R(1993) 60 SASR 415. The Evidence Act is however clear that (a) the alleged victim's failure to make a complaint, or delay in making a complaint, does not necessarily mean the allegation is false; and (b) that the victim of a sexual offence could have valid reasons for failing to make a complaint or for delaying making a complaint. See section 34i(6a). In R v Pahuja(1987) 49 SASR 191, Cox J observed:
“The law in this State does not demand corroboration in sexual cases, and convictions on uncorroborated evidence are not uncommon”
38 Det Conte’s evidence p 1724
T HE SUPPLY OF THE INIT IAL INVESTIGATI O N OUTCOME AND EVIDE NC E TO TH E DEP A R T MENT
The police notified the department of the outcome of their investigations, and provided the department with the material they had gathered.39
In my view that was an appropriate course, for the following reasons.
Firstly, the police were primarily concerned with investigating a criminal offence which would otherwise have required the commencement of a criminal charge. That would have required there to have been reasonable prospects of an eventual criminal conviction, to the criminal standard of proof beyond reasonable doubt. The fact that police took a conservative view that there was insufficient corroboration of C1 for the Police to be confident that a jury would have ultimately no reasonable doubt, was a course legitimately open to them. It did not mean, however, that the evidence of C1 was not at that time objectively credible.
Secondly, there was much to suggest to the Department at that time that the evidence of abuse was objectively credible. There was no apparent motive for C1 to have lied. The complaint had arisen in the course of apparently sincere discussions by C1 with a friend about his sexuality. C1 had no apparent animosity towards Mr Easling, indeed it is apparent from all the evidence they had a close relationship over several years. Even at trial C1 maintained that whilst the facts were as he had said them, he didn’t actually want to get Mr Easling into trouble with the authorities.40
There was never any evidence to support the theory put by Mr Easling’s lawyers both to C1 in cross-examination and to the Jury in their final address, that C1 had made up the allegations of abuse as an excuse to discuss his sexuality with XXXXX . C1 specifically denied it.41 In the absence of any evidence of it or even indirect evidence to support this theory, in the final analysis it was simply a theory created by Mr Easling or his lawyers to try and explain why C1’ apparently credible evidence against Mr Easling, and lack of any apparent motive to lie about Mr Easling, might otherwise still not be true.
Accordingly, notwithstanding the submissions made by Mr Easling’s lawyers about C1’ evidence, the Police were entitled to regard the evidence of abuse that they had obtained from C1 as credible, and therefore worthy of provision to others with a legitimate interest in it such as the department.
Thirdly, all would agree that the department had and has a clear ongoing interest in taking steps to ensure that persons who it placed with foster carers were not sexually abused by those carers while in care. The department therefore had a clear and
39 Det Conte’s evidence p 1733, Mr Edgington's evidence p 1441-2
40 C1’s evidence p 1356
41 C1’s evidence p 1379
legitimate interest in any credible investigation material and evidence gathered by police suggestive of sexual abuse by carers.
Hence it was appropriate for the police to supply and for the department to receive the results of the initial police investigation. That material was provided to the department.42
T HE DEC I SION T O FURTHE R INVES TIGATE
The serious issue then arose, as it would in any such instance as this, of what the
Department should do.
It had at that time apparently credible evidence gathered by and provided to them by the Police that Mr Easling had abused C1 over an extended period. It had denials from Mr Easling that he had perpetrated any abuse. No prosecution had been launched, hence no definitive resolution of guilt by a court was imminent or at that stage possible.
If Mr Easling had been charged at that stage and convicted at that stage, there would have been a definitive finding that he had committed abuse, upon which the department could have therefore definitively relied. If Mr Easling had been charged and acquitted, that however would not have resolved the issue for the department,43 as an acquittal would have meant only that at least one doubt existed in the majority of a jury’s minds, not that it had been conclusively established that he had not perpetrated the conduct concerned. Indeed so long as a single doubt were to remain in the face of strong evidence, the criminal law plainly provides that a person who is even “probably guilty” is entitled to an acquittal in a criminal court.44
The fact that a prosecution had not been initiated, and that Mr Easling had not been convicted, did not absolve the department of its legitimate interest in seeing that persons who it placed with foster carers were not sexually abused by those carers while in care. It only meant that at that stage a police officer had decided that he did not have proof to the exacting criminal standard of beyond reasonable doubt concerning Mr Easling.
Therefore as a matter of law, and so far as the department was legitimately concerned, the outcome of the initial police investigation did not exclude Mr Easling from being possibly or even probably guilty of abuse.
42 Det Conte’s evidence p 1733, Mr Edgington's evidence p 1441-2
43 As indeed his final acquittal similarly did not resolve
44 Indeed the trial judge delivered the standard and universally accepted direction concerning the standard of proof in a criminal trial at page 3 of his summing up on 20 November 2007: “….Furthermore, nothing short of proof beyond reasonable doubt will do. It is not enough for the prosecution to show a mere suspicion of guilt, or to show that the accused is even probably guilty”
At issue would have been Mr Easling’s suitability to continue taking underage boys into his care.45
For the reasons I have mentioned, the material available to the department was ostensibly credible and the issue of whether Mr Easling had possibly or even probably committed the abuse was unresolved. The fact that a prosecution had not been initiated was as a matter of law not in any way determinative of the issue the department faced, and did not absolve the department of its responsibility to persons it might continue to place in Mr Easling’s care.
The department had a range of theoretical options at that stage:
•It could have decided to take no further action. Had it done so, it ran the significant risk that it was allowing a foster carer against whom there were significant apparently credible allegations of abuse, to continue to take in children, and if those allegations were correct, probably continue to abuse children. There was also an obvious risk of criticism from parents, government and the public. It would run the risk of very significant potential civil legal action if others were subsequently abused in Mr Easling’s care. It would run the risk of significant criticism for not conducting further checks concerning a person against whom apparently credible allegations of abuse had been made, and the risk of significant criticism for not checking whether others who had been placed with such a person had been abused.
•On the basis of the apparently credible evidence it had, it could have addressed the issue of Mr Easling’s registration immediately. It could have weighed up all the material available to it, given Mr Easling the opportunity to be heard,46 and it could have proceeded to make a decision either cancelling or not cancelling the registration. Whilst it would in my view have been quite entitled to take this option, it ran the risk of potential criticism by Mr Easling and by others that it should not take such action without assessing Mr Easling’s history of placements in general and checking whether there was any other evidence either in support of or against Mr Easling’s continued registration.
•It could have conducted further checks in light of the allegations made, to assess whether there was further evidence against Mr Easling that would more definitively indicate whether placements should cease and his registration should be cancelled, and to assess whether others who had been placed with him had been abused.
The outcomes of the initial Police investigation and then the Police investigation material itself were conveyed from Detective Conte to Steven Edgington.
45 As a single male, Mr Easling was not permitted to have girls. Accordingly the only persons he was allocated or could be allocated were boys
46 In accordance with the principles of natural justice
Mr Edgington was the manager of the Special Investigation Unit (“SIU”) of the
Department of Families and Communities.47
That unit had recently been set up in light of the recommendations of the Layton Review of child protection and certain internal reviews.48 The role of the Unit was specifically to conduct investigations involving allegations of abuse or inappropriate conduct by carers, staff and volunteers involving children who were in the care of the Minister.49 As mentioned, the fact that Police had not laid formal criminal charges had not relieved the department of its responsibilities to the persons in care, to the public and to carers.
It took the third course. In light of the department’s responsibilities both to Mr Easling and to those who had been and were potentially in the future to be in his care, this was fair.
Caroline Keogh was Acting Principle Adviser for Special Investigations in the SIU
when the earlier notification in relation to Mr Easling had first come in, in September
2003.50 She confirmed that all matters of sexual abuse are initially referred to the Police, which occurred in this case, after which the matter was referred back to the department in December 2003.51
Ms Keogh explained in evidence that Mr Easling was employed as a foster carer and also employed within the public service. The department had a continuing role in relation to his position as a foster parent, and his ongoing foster parent status. She told the court that because the police weren’t going on with their investigation, it didn’t mean the department didn’t have a responsibility to investigate whether he should be in that position. The purpose of further investigation was from an administrative point of view to assess, on the balance of probabilities, whether abuse had occurred in the placement, and she correctly observed that the department had a different burden of proof to the police.52
In my view taking the course of further investigation was fairer to Mr Easling than proceeding to address and possibly cancel his registration immediately. In my view this course was also highly preferable to the other option of doing nothing, in light of the department’s strong interest in protecting further placements from abuse, and in
47 Mr Edgington’s evidence p 1441-2
48 Mr Edgington’s evidence p 1439
49 Mr Edgington’s evidence p 1439
50 Ms Keogh’s evidence p 1663
51 Ms Keogh’s evidence p 1664
52 Ms Keogh’s evidence p 1665 and 1673. This is the correct legal position, as whilst criminal guilt is determined on the basis of proof beyond reasonable doubt, administrative decisions affecting registration are made on the balance of probabilities, recognising however that the
more serious the allegations the higher the level of satisfaction required for the matter to be
established on the balance of probabilities, see Briginshaw v Briginshaw (1938) 60 CLR 336
light of the very significant potential criticism and very significant potential legal action it faced in not doing so.
Hence the decision by the department to further investigate was entirely appropriate.
T HE CONDU CT OF THE SI U INVES TIGATION
When the matter was referred back to the department by the police, Mr Edgington and Ms Keogh commenced further investigation.53
Mr Edgington admitted that at the outset there was no general system for records. Therefore a process was established. Mr Edgington set up an “investigation diary” or “running sheet” to record a summary of tasks, matters, dates and so on which included notes of phone calls, home visits, interviews, what files were perused including Mr Easling’s Care Registration file and also files of young people who had been in his care, and so on.54
Ms Keogh told the court that the first thing that she and Mr Edgington did in the investigation was to compile a placement table, and then work out where individuals were that they wanted to talk to. They decided that they needed to check a number of things from Mr Easling’s statement to the police. They went to Noarlunga FAYS, Enfield FAYS, Marion, Aberfoyle Park, Elizabeth, Woodville, Gawler, Enfield, Modbury, and Salisbury and talked with social workers if they were available. They talked to people associated with the boys who had been in Mr Easling’s placement. They didn’t necessarily let them know that they were investigating Mr Easling. They said they only spoke to people after they decided they had reason to speak to them, essentially if they thought they had relevant information.55
Ms Keogh went on to tell the court that they would say they were looking into a sensitive matter and needed to look at certain files. When they talked to the social workers of boys who had been in Mr Easling’s care they sometimes identified Mr Easling as being the person of interest, but not always. Sometimes they wanted people to just give information without necessarily “homing them in” to the subject of their investigation. She said they started with files, then progressed to social workers and supervisors and then to interviews with the boys themselves. On 26 February
2004 Mr Edgington and Ms Keogh interviewed two boys XXXXX and XXXXX at
Aberfoyle Park FAYS office.56
Much criticism was made by Mr Easling’s lawyers in the course of the trial of the fact that the investigation did eventually include speaking to other boys who had been and were in Mr Easling’s care to determine whether any of them had been abused. In
53 Mr Edgington’s evidence p 1442, Ms Keogh’s evidence p 1664
54 Mr Edgington’s evidence p 1443, Ms Keogh’s evidence p 1664
55 Ms Keogh’s evidence p 1675
56 Ms Keogh’s evidence p 1676
many respects this was the primary complaint made by Mr Easling’s lawyers concerning the investigation.57
Similar criticism was also sought to be made by Mr Easling’s lawyers by comparing the initial police investigation, which was essentially a standard reactive police investigation of the initial allegations of one victim, to the subsequent departmental investigation which was a proactive one of investigating further to see if there had been abuse of any other boys in Mr Easling’s care.58
The issue of the degree to which a police investigation ought to be proactive and look to search out other crimes was raised with Detective Conte in cross-examination. He told the court that it is a very topical issue as to whether or not it is a police responsibility to go out and look for other complainants.59 He went on to say:
“It’s very topical. We have had complications in the past. The example I give is you might have a school teacher and one allegation against that school teacher from one child. Then, is it appropriate for us to approach every child in the class and then destroy that person’s reputation?” 60
He went on to make the observation that as the investigating officer, each case is dependent on its own merits as to how far you go, and as in every case he made a judgement call in this case to go as far as he did.61
So the police position was that investigators either may or may not cast their net wider to see if there are other complainants, and that is a judgement call for the particular investigator in a particular case based on all the circumstances. In fact Detective Conte never said that there was anything wrong with the SIU investigators, with their different perspective and role,62 conducting further investigations to see if other placements with Mr Easling had been abused.
It was therefore not unlawful or improper to do so. The final issue therefore is, even if fully lawful to do so, should they have done so?
It is clear that the Police had a fundamentally different duty to that of the department.
The Police Act (1998) provides the Police with a general duty to uphold the law:
57 See the defence opening statement to jury eg at p 398-399, on numerous occasions by the defence in cross-examination of the investigators eg when putting matters to investigator Boydon eg at p 1570, eg when putting matters to investigator Oats at p 1608 and 1660, in the defence final address to the jury eg p 2210, and in the 28 August 2008 Submission by Mr Easling’s lawyers eg at paras 38-40
58 Eg defence final address to the jury p 2210
59 Det Conte’s evidence p 1736
60 Det Conte’s evidence p 1736
61 Det Conte’s evidence p 1737
62 Of amongst other things considering the foster care status of Mr Easling, see Det Conte’s evidence p 1734
5       Purpose of police
The purpose of S.A. Police is to reassure and protect the community in relation to crime and disorder by the provision of services to—
(a)     uphold the law; and
(b)     preserve the peace; and
(c)     prevent crime; and
(d)     assist the public in emergency situations; and
(e)     co-ordinate and manage responses to emergencies; and
(f)      regulate road use and prevent vehicle collisions.
It is generally accepted that this will involve investigating circumstances which suggest a particular crime has been committed, with a view to instigating charges if there is sufficient evidence to suggest that a court will find the charge proven beyond reasonable doubt. It is in a general sense ‘reactive’, in that a Police investigation will usually although not always be in response to a complaint or the existence of readily perceivable evidence or material suggestive of an offence.63
On the other hand, the primary legislation that deals with the protection of children who are under threat64 is the Children’s Protection Act (1993) (“the Act”). The Act articulates the following “fundamental principles”
4       Fundamental principles
(1)     Every child has a right to be safe from harm.
(2)Every child has a right to care in a safe and stable family environment or, if such a family environment cannot for some reason be provided, in some alternative form of care in which the child has every opportunity that can be reasonably provided to develop to his or her full potential.
(3)In the exercise of powers under this Act, the above principles and the child's wellbeing and best interests are to be the paramount considerations. (emphasis added)
So, in resolving the “topical issue” articulated by Detective Conte as to whether or not in the case of police investigations of abuse you proactively investigate whether other children in a suspect’s care have been abused, the Act articulates certain fundamental rights for children. The department is directed by the statute to place the child’s safety from harm as the paramount consideration in the fulfilment of all its functions pursuant to the Act. It has a very specific proactive statutory charter to safeguard children’s wellbeing and best interests above all other considerations.
As such, the Act directs the department to place the importance of investigation and prevention of harm to children above all other considerations, which such other considerations might include the potential reputational damage that might flow concerning the suspect.
63 There are some limited exceptions, for example proactivity in detecting drivers speeding by radar, and detecting drink/drug driving offences by random testing as mandated in Division 5 of the Road Traffic Act 1961, occur.
64 Typically the children who were placed with Mr Easling were kids who for a range of reasons were “street kids” and thereby in need of intervention and protection
This policy pervades the Act. For example, section 12 of the Act provides a blanket protection for anyone from any kind of legal or professional liability for voluntary or mandatory notification of the Department of a suspicion that a child has been or is being abused or neglected, or for the provision of any information to the Department in respect of such a notification.
The Act provides that those receiving the information must keep it confidential except in certain circumstances, primarily insofar as they are engaged in the administration of the Act performing official duties.65
Mr Easling’s lawyers repeatedly told the jury that the investigation by the department’s investigators was biased, corrupted and improper,66 however it was never raised or established at trial that the investigators’ actions were actually unlawful nor that they breached any identified legal or departmental principle, or any administrative rule or guideline.
Nor did the defence seek to exclude any investigation evidence on the basis of any illegality or impropriety in the obtaining of such evidence. If there was any factual basis upon which it could have been submitted that the evidence had been improperly or unlawfully obtained, an application could have been made and if successful granted on well recognised “voir dire”67 principles.68 It was not made, accordingly it is reasonable to conclude there was no evidential basis for such an application to be made.69
Mr Easling’s lawyers concede that there was no basis for the defence to argue illegality at the trial.70 They do however argue that although the members of the SIU were departmental officers they were not validly authorised by statute to conduct the investigations that they did and hence acted unlawfully.71 Because, as observed, it is conceded by Mr Easling’s lawyers that this did not affect the legality of the evidence
65 Sections 13 and 58 of the Act
66 Eg the opening defence statement to the jury at p 400-401 and the defence address to the jury at p 2210
67 A preliminary hearing before a judge to determine the admissibility of evidence
68“…in both civil and criminal trials (whether before judge and jury or before judge alone), the court may exclude evidence which would otherwise be received where it
has been illegally or improperly obtained. The court will weigh the public interest in protecting citizens against illegal or improper conduct against the interest in obtaining
an accurate decision. It will take into account the importance of the information to the making of an accurate decision, the seriousness of the decision, the seriousness of
the illegality or other impropriety, the ease with which the information could have
been legally or properly obtained, the civic responsibilities of the persons obtaining the information, and the deliberateness of the illegality or impropriety.” Halsburys Laws of Australia, para 16.1.27
Ms Powell QC said that the defence was not making any such application eg at p 36 lines 4-5 and p 1447.
69 Ms Powell QC said that the defence was not making any such application eg at p 36 lines
4-5
70 Mr Easling’s post-trial submission para 140
71 Mr Easling’s post-trial submission paras 113-118 and 130-139
at the trial and hence the validity of his prosecution, in one sense it is of lesser significance.
The submission especially in its analysis of unlawfulness is however misconceived, but in fairness to it I make the following observations.
If, hypothetically, a public servant who did not have the specific duty to investigate abuse none the less came across such abuse, he or she is entitled to report it and is given specific authority and protection in doing so by section 12 of the Children’s Protection Act 1993. If that public servant had been administratively directed to perform functions and in the course of those functions discovered abuse, and there was no legal prohibition on performing the directed functions, then the actions of that public servant in performing the function and reporting the abuse would not in any event be unlawful. Further, even if there were a lack of specific statutory authority to perform a function that is not otherwise illegal,72 then performing the function, albeit “unauthorised”, is not consequently necessarily illegal.73 Insofar as Mr Easling’s lawyers suggest that a lack of specific statutory authority necessarily results in subsequent actions being “illegal”, that submission is plainly wrong.
Further, much administrative activity, whilst not specifically statutorily mentioned, is
‘authorised’ in the sense that it falls within the overall statutory remit of the department concerned.
In this case, there was no evidence to suggest that the investigators were not validly directed by their respective departments and chief executives to perform the general functions they were required to perform, and to investigate the matters which were ultimately before the Court. The Crown Solicitor’s advice which Mr Easling’s lawyers refer to74 and annex was not directed to the issue of the lawfulness of the investigation. That advice was directed to clarifying and formalising delegations and decisions made pursuant to section 19 of the Children’s Protection Act 1993. Section
19 compels investigations to occur in certain circumstances and vests certain powers of compulsion in that instance, but it does not in any way prevent any other investigation that may assist the department in the conduct of its business, and in furtherance of its statutory purposes. Whilst it is outside the scope of this review to independently investigate the internal delegations or authorities granted pursuant to section 19, Mr Easling’s lawyers’ submission and the trial evidence do not establish that the investigations were not authorised to proceed.
The investigations were valid and lawful quite independently of section 19, as they fell within the aims, purposes and powers generally granted respectively by the Family and Community Services Act 1972 and the Children’s Protection Act 1993.
72 ie not subject to a statutory prohibition
73 In some contexts it may result in the actions being a nullity or of no legal effect, but that is quite different to illegality/unlawfulness
74 Mr Easling’s post-trial submission para 130
More detailed advice as to the operation of these Acts and the consequent lawfulness of the investigation can be provided on request.
For completeness, I observe that Mr Easling commenced legal action in the Supreme Court alleging illegality and unfairness in the conduct of the investigation, however this action was discontinued without being served, on 18 April 2008.
The defence did make application prior to trial that the charges concerning each complainant be tried separately on several bases including that there was a real possibility that the evidence of the complainants was contaminated75 by the investigators, however this was rejected by the Trial Judge.76 The contamination suggested was primarily a defence submission that the investigators had relayed the nature of the C1 allegations to the other complainants to enable them to concoct similar allegations.77
The trial judge was under a duty to exclude the evidence from cross-admissibility78 and hence sever the charges from each other, if he thought that the similarity of the complainants’ accounts was reasonably explicable on the basis of concoction between the witnesses.79 The trial judge rejected the application for severance.80 It is clear therefore that the trial Judge himself did not accept that there was a real possibility that the evidence of the complainants had been contaminated in the way suggested by the defence. Whilst the trial judge never ultimately delivered formal reasons, in the course of later argument he made this clear. He said:
“... I have to give reasons, of course, but I will tell you in a pithy form what they are - that questions of contamination, looking from the perspective of the Crown Case, is merely conjecture.”81
75 Submissions by Ms Powell QC eg at p 39-44 and p 313 lines 7-9
76 Trial Judge’s ruling at p 323-4
77 For example Ms Powell QC’s opening statement to the jury at page 400 that
“…You will hear evidence “from which it can be inferred” that investigators disclosed to those people who had been in Mr Easling’s care not only that there were other complainants or another complainant, but also sufficient detail of what another person or other persons had said….to enable those later complaints ….. to sing in very general terms the same song as was being sung by the others”.
78 i.e. exclude the evidence of one offence from the trial of any other offence
79 Hoch v The Queen(1988) 165 CLR 292 at pp 297 and 304
80 Trial Judge’s ruling at p 323-4. The trial judge did not publish formal reasons at the time. Trial judges sometimes do not publish reasons for rejecting such an application, as they do
not wish to say anything which might appear to indicate that they do not agree with central
tenets of the defence case, as that case is still to go to the jury. For example here, necessarily central to the trial judge’s rejection of the severance application would have been a factual conclusion on the part of the trial judge that there was no evidence to support the defence submission that the witnesses’ evidence was tainted by exposure to other witnesses’ versions. The trial Judge said as much, albeit in the briefest of terms, at page 1099. Publication of such reasons prior to the commencement of the trial before the jury, may have caused Mr Easling to lose confidence in the objectivity of the Court, where the defence case would plainly seek to urge that very position to the jury
81 Trial Judge’s statement p 1099
As the trial proceeded, no evidence emerged to suggest that C1’ account of the abuse he said he suffered was ever conveyed to any other witness. In fact, the evidence was to the contrary.
This was however the specific defence theory, propounded no doubt to explain how each of up to eight separate complainants’ evidence on oath could be entirely false and the result of deliberate fabrication, yet also display similar patterns of abuse.
This theory was initially propounded by Ms Powell QC and repeatedly articulated in the defence opening statement made on Mr Easling’s behalf at the outset of the trial.82 It was then put to, and denied on oath by, every relevant witness in the course of the trial. Each of the Investigators concerned denied it, and then each of the complainants denied it.
Each of the complainants was extensively cross-examined about that issue by Mr Easling’s QC’s and either specifically denied or could not recall any suggestion they had been told the nature of the allegations made by C1 or anyone else. Given its significance, I summarise that evidence:
•C1 was the initial complainant and there is no suggestion that any other complainant’s allegations were suggested to him at any time.
•       C2 at p 460 line 33 denied he had been told what any other boy had said.
•C3, who was not related to C2, said at pp 695-6 that at the stage he gave his statement he might have been told Mr Easling had been arrested and after he had made his statement while he might have been told that C2 had also been abused he was not told any factual allegations. See p 697 lines 32-37, p 698 lines 5-10 and page 701 lines 1-4.
•C4 said at pp 784 and 807 that he could not recall the investigators telling him any allegations, and that they didn’t give him any detail anyone else had given
about the allegations against Mr Easling.
•C5 said at pp 850-1 and 947 that while investigators said four others had made unspecified complaints about Mr Easling, they had not told him anything the others had said. C5 had subsequently made his initial complaint against Mr Easling unilaterally to his community correctional officer, in the absence of the SIU.83 Arrangements were then made for him to give a statement direct to
the police per Detective Foley at his community correctional officer’s office.84
82 Transcript pp 400, 401 and 402
83 See statement of XXXXX , read to the jury by consent at pages 1751-1752
84 C5’s evidence p 866
•C6 said at p 1025 that the investigators did not tell him that they were investigating Mr Easling nor did social worker Craig Reed tell him any allegations being made by others. See p 1026 line 21 and p 1028 lines 23-27.
•C7 said at pp 1115-9 and 1122 that his mother spoke to him before the investigators came and she mentioned something about Mr Easling and an investigation and he knew they were going to speak about a serious matter. It was not however suggested that any allegations were conveyed to him nor did he give the Court any indication that allegations were conveyed to him. The trial Judge at p 1103 described the suggestion of contamination of this witness
by the SIU via the mother as “…some sort of conjecture - and that is all it is …”.
•C8 said at pp 1201 and 1219 he had heard that Mr Easling had been arrested and so mentioned to his mother he had been abused by Mr Easling. At that stage no-one had spoken to C8.
Although there was no direct evidential support for it, this defence theory of evidential contamination then formed a major part of the defence address to the jury at the conclusion of the trial.85
In relation to C7, the defence also seemed to infer in its final address that as his mother had spoken to him prior to the investigators, and he had made allegations first to his mother, that his mother must have been complicit in conveying themes of complaint to him and enabling him to fabricate false evidence against Mr Easling.86
Unfortunately, none of this had been put to C7’s mother when she had been cross- examined by the defence.87 In re-examination C7’s mother said that she was never given any details of the allegations that were being investigated.88 Accordingly, there was no evidential basis to infer, as was done, that C7’s mother had any role in passing any allegations to C7.
In relation to C6, in its final address the defence also asked the jury to infer that as social worker Reed had spoken to C6 prior to the investigators, that Mr Reed had fed C6 themes enabling him to also fabricate false evidence against Mr Easling. The inference from Ms Powell QC’s address to the jury is unclear as to whether she was suggesting to the jury that this was done deliberately and dishonestly.89
Unfortunately, none of this had been put to Mr Reed when he was recalled and cross-examined by the defence about his contact with C6.90 Mr Reed stated that he could not recall involvement with C6 in relation to the Easling investigation, but did
not deny that it could have occurred.
85 Address to jury by Ms Powell QC, in particular at pages 2218-2224, 2302, 2317, 2327,
2350, 2354, 2357, 2362, 2381-2382, 2398, 2405, 2408-2409, 2427, 2429-2433
86 Address to jury by Ms Powell QC at pages 2407-2409
87 Cross examination of C7’s mother XXXXX at pages 1162-1165
88 Re examination of C7’s mother XXXXX at page 1165
89 Address to jury by Ms Powell QC at pages 2397-2398
90 Further cross examination of Mr Reed at pages 1709-1712
There was therefore no evidential support from either C7’s mother or social worker Reed, either for the defence theory of contamination, or for the inferences made in the defence address to the jury as to their complicity in such contamination.
At the conclusion of Mr Easling’s post-trial written submission his lawyers effectively concede that the ruling by the trial judge against severance of the charges meant that the trial Judge himself did not accept that there was a real possibility that the evidence of the complainants had been contaminated in the way suggested by the defence.91 If the trial Judge had done so, he would have been legally required to sever the charges.92 The trial Judge did not do so, despite extensive argument by Mr Easling’s lawyers. In Mr Easling’s post-trial submission his lawyers go on to answer this by saying that the ruling occurred prior to the oral evidence at trial being heard. They infer therefore that the subsequent trial evidence was not available to the trial judge, and things would have been different had he heard it and been able to take it into account.93 Hence, they infer, the trial Judge’s view that there was no evidence that there had been contamination of witnesses, “cannot be used to counter Mr Easling’s contentions”.94 This is incorrect for three reasons.
Firstly, pre-trial the trial judge had detailed and sometimes multiple statements from all the witnesses, together with transcript of the extensive committal cross- examination of the SIU investigators directed to this very point, and very extensive submissions by Mr Easling’s senior and experienced QCs to the effect that the contamination was obvious from the mentioned materials. If the defence had thought that further cross-examination was necessary at that time or could have bolstered their case, they could easily have asked for the investigators or others to be called to allow that further cross-examination. They did not do so. Accordingly the trial Judge was in a very good position at the outset to assess the whole of the evidence against Mr Easling.
Secondly, when the complainants gave evidence at the trial each of them denied on oath that they had been told the other complainants’ allegations or that there had been any direct or indirect contamination of their recollection, and no evidence to the contrary was called at any stage of the trial. They maintained these denials though many hundreds of pages of meticulous and searching cross-examination by Mr Easling’s two QCs. It was also denied or not supported by every other relevant witness; Investigator Oats, Investigator Boydon, social worker Reed and C7’s mother.
Thirdly, if in fact the trial evidence had at any stage disclosed the suggested contamination of evidence, the application for severance could have been
91 Paragraphs 142 and 144 of Mr Easling’s post-trial submission
92 Hoch v The Queen(1988) 165 CLR 292 at pp 297 and 304
93 Paragraph 145.1 of Mr Easling’s post-trial submission
94 Paragraph 145 of Mr Easling’s post-trial submission
immediately renewed, and the application would have been granted if the trial evidence, as that evidence unfolded, disclosed any real possibility of the claimed contamination. As mentioned, even part way through the trial proper, the trial Judge held that the suggestion of contamination was no more than conjecture by the defence.95
Indeed if the trial judge had noticed it, he could have raised it of his own motion. Near the end of the prosecution case, after all the complainants had given their evidence and been cross-examined, Mr Easling’s lawyers cross-examined Mr Edgington in a way that suggested they were inferring that some aspect of the SIU investigation was unlawful due to an absence of coercive powers. The trial judge specifically asked:
HH:I want to get this clear. Are you presenting some sort of argument to say that I should somehow reject all the evidence of all these complainants because of some illegal process?
Ms Powell:No. Your honour will remember when we had the argument about severance, the live issue was one of contamination.96
…………………..
HH:Thank you. Have you got instructions that that’s what happened in this case, that they contaminated each witness?
Ms Powell:      We know there is the opportunity. HH: That’s all you’ve got?97
So even when asked at this late point in the trial, after the evidence of all complainants, Mr Easling’s lawyers could not point to any direct evidence that any complainant’s account was contaminated by being told any other complainant’s version, and understandably Mr Easling’s lawyers made no further application for severance as they has no better basis to seek severance than they had at the outset. The theory of contamination remained, as the trial Judge had correctly observed, “merely conjecture”.98
Finally, Mr Easling’s lawyers argue that the jury’s verdict of acquittal invalidates the trial judge’s view that there was no evidence of the asserted contamination of witnesses.99 This is also incorrect, for a number of reasons.
Firstly, the verdict of acquittal means only that the jury had at least one single doubt about whether every element of the prosecution case had been proven beyond reasonable doubt in their eyes.
Secondly, a verdict of acquittal does not amount to any positive adverse finding of fact concerning the conduct of the investigation. Hypothetically, the jury may have been quite satisfied that there was no cross-contamination of evidence, however still had doubts about the memory or truthfulness of each individual complainant. Or,
95 Trial Judge’s statement p 1099
96 Transcript of trial p1447
97 Transcript of trial p1449
98 Trial Judge’s statement p 1099
99 Paragraph 145.2 of Mr Easling’s post-trial submission
hypothetically, the jury may have decided that in light of Mr Easling’s lengthy sworn denials they just couldn’t tell where the truth lay, and in such a case an acquittal is the necessary verdict. Neither of these possibilities involves any necessary finding of contamination of evidence.
Accordingly the trial Judge’s assessment   that there was no evidence of contamination of the witnesses remains as valid now as when it was initially made.
Finally, the argument that the verdict supplanted or invalidated the trial Judge’s conclusion misses the point. The issue now is whether in the totality of the circumstances a further enquiry is warranted. In that event, and for that purpose, a judge’s view is just as valid as a jury’s view. For that purpose, the jury’s ultimate acquittal does not objectively invalidate an experienced Judge’s independent assessment of the evidence.
This all supports an assessment that the evidence at trial does not provide any real support for the claim that the evidence of the complainants had ever been contaminated by the investigators or the investigation in the way suggested by Mr Easling’s lawyers constantly throughout the trial, and now in their submission that there should be a further enquiry.
This claim was a significant element of Mr Easling’s defence. As his counsel said at page 1447:
Ms Powell:Our whole case and our defence is based upon the fact that it was these investigators who took the opportunity to give these complainants the script, to give them the C1 script so that they were able to repeat it.
Notwithstanding this statement, when the defence case itself commenced, no evidence was called as a part of the defence case directly or indirectly to the effect that any investigator gave any description of others’ allegations to any complainant.
Accordingly there is no direct evidence whatsoever to support the primary complaint made by Mr Easling’s lawyers, the suggestion that any investigator conveyed any witness’ version of events to other witnesses, nor that for reasons best known to themselves the investigators wanted witnesses to fabricate false evidence against Mr Easling.
The complaint therefore amounted to a theory repeatedly asserted by Mr Easling’s lawyers throughout the trial, unsupported at any time by any direct evidence. As such, it provides no basis whatsoever to support any suggestion that the SIU investigation was conducted inappropriately and that there be a further enquiry into it.
In the absence of any direct evidence to support such theory, Mr Easling’s lawyers make other complaints about the investigators which they said and say support the
theory. Essentially, the argument was, as Ms Powell QC put it at page 1449, that the investigators had “the opportunity” to convey witness’ testimony to each other, and therefore must have done so.
Mr Easling’s lawyers submit that there are three kinds of evidence of this impropriety, and a fourth dimension also indicative of this impropriety, on the part of the SIU.100 I consider each in turn.
Alleged Absence of Investigation Records
“The absence of any contemporaneous notes of any discussions with any witness with the exception of two pages of an alleged conversation between Boydon and one complainant, the content of which the complainant vehemently denied anyway, inconsistencies between records and the fact that tape recorded interviews were only ever made of complainants - from which the only inference open was that a deliberate decision had been made not to record anything other than a complaint and that the investigators had to know before they commenced recording a complaint that a complaint was to be made on the record;”101
This complaint cannot apply in any event to two of the eight complainants who ultimately gave evidence. C1 made allegations concerning Mr Easling before the involvement of any investigator or the police. He wrote to his friend XXXXX, then told the school counsellor, and then gave a detailed statement to Police,102 not the subject of any complaint as to its manner of taking. C8 heard about Mr Easling’s arrest and subsequently confided to his mother allegations that he had been molested by Mr Easling. As a result he attended Holden Hill Police station with his mother and made a complaint, and later gave Police a formal statement.103 Police spoke with both then took statements. The SIU had no involvement with the initial statements of either C1 or C8 and no complaint was made by the defence at trial about the conduct of those who took those statements.
Mr Edgington was the manager of the SIU104 and was responsible therefore for the practices and procedures of that unit. He gave evidence that when he started the unit there was no general system for records. He therefore created a system whereby his involvement was recorded on an investigation diary. He told the court that the investigation diary was a summary of tasks or matters followed up during the investigation, a word document containing dates and description of what he did, who he spoke to and describing what type of information it was. He told the court that in the initial period that he and Ms Keogh were working in the Unit, and up until the commencement of Investigators Boydon and Oats, the only investigation diary was
100 Paragraphs 46-48 of Mr Easling’s post trial submission
101 Paragraph 46.1 of Mr Easling’s post-trial submission
102 See footnoted earlier transcript references
103 C8’s evidence p 1201-2, Probationary Constable Louise Cradock’s statement at p1717
104 Mr Edgington’s evidence p 1440
the one he had just described. He said that Ms Keogh did contribute to that, recording her activities in contribution to the investigation. So the authors of the diary in that initial period were he and Ms Keogh. He said that when Investigators Oats and Boydon started he didn’t recall giving them any specific instructions about recording information but that he would have expected them to record matters in a similar format to what he had recorded. He was aware that the investigation diary or “running sheet” was commenced, which was a document created by Investigators Oats and Boydon taking a similar format to the investigation diary he had kept.105

Accordingly there was a straightforward record keeping procedure in place for the investigation, that of maintaining an investigation diary or “running sheet” of the investigation. This was confirmed by Ms Keogh.106
Investigator Oats gave evidence that on his commencement there was a briefing with Mr Edgington about how he and Investigator Boydon were to go about the investigation and keep records. He said it was emailed to them. They were to keep a running sheet, a collation of events of the investigations on a day to day basis, and of timeframes. He said there was one running sheet for all the investigators containing the date on which events occurred, the times and a summary of the events themselves.107
Investigators Oats and Boydon both gave evidence that they adhered to this procedure and maintained an investigation diary or “running sheet”.108 Ms Keogh also corroborated that Oats and Boydon maintained the investigation diary when they became involved.109
Accordingly the evidence establishes that Investigators Boydon and Oats followed the investigation and record keeping procedure set up by their manager, and which their manager said he expected them to follow.
This procedure, set up by Mr Edgington and followed initially by Ms Keogh and subsequently by Investigators Oats and Boydon, did not require contemporaneous notes to be taken of every conversation with any potential witness.
No South Australian law requires contemporaneous notes to be taken of every conversation an investigator has with a potential witness, and Mr Easling’s lawyers do not claim the contrary. Whilst in certain circumstances interviews with suspects and searches of suspects in relation to serious charges must, where practicable, be recorded, no such principle applies to complainants.110 Detective Conte from the
105 Mr Edgington’s evidence p 1443-4
106 Ms Keogh’s evidence p 1664
107 Investigator Oats’ evidence p 1579
108 Investigator Boydon’s evidence at p 1451, Investigator Oats’ evidence at p 1579
109 Ms Keogh’s evidence p 1671-2
110 Part 17 of the Summary Offences Act 1953 requires that interviews of persons suspected of having committed indictable offences be recorded on video or audio wherever practicable,
Sexual Crime Investigation Branch gave evidence that even in the case of a police investigation, unless he suspected that he was going to hear disclosures about an offence, procedure would not require him to make notes.111
Hence, the evidence was all to the effect that there was nothing improper about not automatically taking contemporaneous notes of all contact with all persons spoken to in the course of the investigation.
Here, the detailed allegations of the six complainants spoken to by Investigators Oats and Boydon were nonetheless tape recorded contemporaneously and then transcribed. The investigators adopted a procedure of first identifying whether it was likely that there would be an allegation of sexual abuse, and if so they would record the interview on tape.112 In that way, an exactly accurate record was made at the very early stage of contact, of the allegations of that complainant. That accorded with the procedure adopted by Detective Conte for police investigations.113
Accordingly it is quite inaccurate to assert that there was an “absence of any contemporaneous notes of any discussions with any witness” when every complainant witness was taped and that tape transcribed.
At trial the complaint was more refined than it was put in Mr Easling’s post-trial submission. Firstly, the complaint was that the Investigators did not either contemporaneously note everything said to them by anybody, and secondly that with some of the complainants there were preliminary conversations before the formal recording commenced. As mentioned, this was not illegal, nor were Mr Easling’s lawyers able to point to any guideline or other academic or common law principle that might indicate that this was improper. As previously observed the practice of not necessarily contemporaneously noting everything said by anybody, accorded with police practice.
Indeed there would be no point whatsoever taking the time and trouble to contemporaneously note a conversation that an investigator had no idea would be relevant or not. That would result in large amounts of irrelevant material being
and Part 18 of that Act requires that intimate searches of suspects also be recorded. Section
3(2)(e) of the Terrorism (Police Powers) Act 2005 requires strip searches of suspects to be recorded, section 42(2) of the Terrorism (Preventative Detention) Act 2005 requires questioning in detention to be recorded where practicable. There is however no general legal obligation to record potential witnesses or complainants. While proceedings on telephone complaints of domestic violence under the Domestic Violence Act 1994, and proceedings on telephone complaints seeking a restraining order pursuant to Part 4 Division 7 of the Summary Procedure Act 1921 must also be recorded, this is more likely to be because those telephone calls are in the nature of proceedings themselves which can result in an order which such proceedings would otherwise be completely unrecorded
111 Detective Conte’s evidence p 1744
112 Investigator Oats’ evidence at pp 1596-1597 and Investigator Boydon’s evidence at p 1473
113 Detective Conte’s evidence p 1744
recorded for no purpose whatsoever, except perhaps to conclusively establish its irrelevance.
The remaining complaint is that the SIU investigators did in some, but not all, cases of the remaining six complainants have preliminary conversations that were not contemporaneously recorded. This, it was argued by Mr Easling’s lawyers, provided the opportunity for, and indeed was itself evidence supportive of, their argument that the investigators corruptly passed on a script to the witnesses to encourage and enable these witnesses to fabricate false evidence wrongly claiming that they had all been molested by Mr Easling.114
I turn to examine the interview procedure followed by the SIU investigators and the rationale given by the investigators for such procedure, to assess whether despite its legality there is evidence to materially support the argument put by Mr Easling’s lawyers. I then compare this to the evidence given by the police as to police practice.
Investigator Boydon gave evidence that he did make contemporaneous notes during some stages of the investigation period.115 He said for example that he did make notes of the C3 interview.116 He said he would make copious notes on A4 paper as a working sheet and as he worked through items he crossed them off and discarded the note usually by shredding if it had no further use. He said for example when he was taking statements from social workers and the like, he would make hand written notes,117 type them on the computer, save it to disk and then cross off the hand written statement and discard it because it had been transcribed to disk. This initially included contemporaneously noting and transcribing to the running sheet all witnesses including those who made no disclosure or who said positive things about Mr Easling.118 The trial Judge observed that by transcribing the written note verbatim to the computer disk, in effect that became the original note.119
Investigator Boydon went on to say that before too long it became apparent that he and Investigator Oats didn’t have the time to be taking lengthy statements from social workers who were not providing any information or disclosure, and he soon formed the opinion that because of the time constraints on them with the investigation, that time was of the essence as far as interviewing the actual people on the list of those in foster care. He said that as an ex police officer he had given evidence on many occasions over the years and in relation to contemporaneous notes he made judgment calls in light of the time constraints. He said that if he believed something
114 For example, see the defence opening at pp 400-410 and the defence final address to the
Jury by Ms Powell QC at pages 2218-2224, 2302, 2317, 2327, 2350, 2354, 2357, 2362,
2381-2382, 2398, 2405, 2408-2409, 2427, 2429-2433
115 Investigator Boydon’s evidence p 1465
116 Investigator Boydon’s evidence p 1465
117 Or shorthand, see Investigator Boydon’s evidence p 1465 and 1471
118 Investigator Boydon’s evidence p 1466 and 1471
119 Statement by the trial Judge at p 1471: “I might clear this up. Original notes to a disk. If a disc is transcribed, an argument would say that that is an original note.”
didn’t have any evidentiary purpose he didn’t keep it. When it was put to him by Mr Easling’s lawyers, he denied that he would regard evidence exonerating Mr Easling as of no evidentiary value.120
He went on to point out that he noted on the running sheets if Mr Easling was kindly spoken about and whether disclosures had been made or not. He said it was not his intention to cover that up. He observed that while a running sheet can be a generalisation or summary he wasn’t conducting a police investigation but rather a contract investigation for a short period of time and he made a judgment call to do what he did. He said that basically their brief was that if anybody did make disclosures that would be passed to the police department and more substantial statements would be taken by the police. He emphasised that he interviewed a lot of people in Mr Easling’s care who were not complainants and didn’t make any complaints about him. On some occasions he said he did make then transfer hand written statements to a typed form and then shredded the original.121
He said the decisions about notes were a judgment call in terms of the expediency of the investigation. He indicated that they wanted to interview as many people that had been in the foster care of Mr Easling as they could, and whether that was right or wrong that was the judgment call they made. He emphasised he would only destroy an original if it had been translated to disk.122
He said that it was necessary to identify people that might have been in Mr Easling’s care as a foster carer, and that had been a somewhat difficult task given the passage of time. He said that they were dependant in part on assistance from the Department and the social workers. Part of the expediency of it was realising the great task they had because there were so many people to speak to and interview. He observed that those that were passed on to SAPOL were on audio tape, and SAPOL would then interview or take a statement from that person.123
He said that while no-one said anything that was exculpatory of the allegations that had been made against Mr Easling, he always noted on the running sheet when complementary things were said about Mr Easling or when a person said that nothing had happened to that person.124
He was asked why he had some conversations with complainants before the tape was activated, and he said that he was trying as he would with any witness to build a rapport with that person125 and that they would tape record where they believed a disclosure would be made.126
120 Investigator Boydon’s evidence p 1466
121 Investigator Boydon’s evidence p 1467
122 Investigator Boydon’s evidence p 1468
123 Investigator Boydon’s evidence p 1469
124 Investigator Boydon’s evidence p 1490
125 Investigator Boydon’s evidence p 1576 lines 29-30
126 Investigator Boydon’s evidence p 1473 and 1493
Investigator Oats also gave evidence about their interview procedure. He said that their brief was to investigate whether people in Mr Easling’s care had been dealt with inappropriately in any way, and as a first step they had to identify who had been in his care.127 He said that it was a big job to try and track them down, and that they were not given specific instructions how to record an interview with any particular person, so they took, as a joint approach, what they had done as investigators in the past.128 He said that if they spoke to someone and nothing inappropriate happened to him they would not tape record that fact, but would include it in the running sheet as that would give a fair idea.129 He said that they would identify if it were likely that there would be an allegation of sexual abuse or something inappropriate, and if so they would tape record the statement.130
Specific criticism was made by the defence in the course of the trial concerning the interaction between Investigators Boydon and Oats, and complainant C2. The criticism essentially was that they spoke to him several times notwithstanding no initial disclosures and that they also provided him with some assistance prior to him disclosing allegations that Mr Easling had abused him. The investigators explain the assistance on the basis that he was a victim of crime, was living in squalor in appalling conditions131 who it was natural to want to help132 and with his phone cut off had no means of being contacted at home.133 They explain their persistence with C2 on the basis that they suspected that he did have something to tell. Both recall being informed by social worker Reed that Reed had seen C2 in Mr Easling’s bed.134
Investigator Boydon recalls Reed specifically saying that C2 may make a disclosure to them. Receiving information from an eyewitness that a boy was seen in the carer’s own bed and being told that a disclosure was likely would provide a strong basis to suspect inappropriate conduct and that the person might have something to tell. This would appear to explain why investigators might allocate more time and effort with that person. Reed gave evidence at the trial that he did attend Mr Easling’s house on the morning of 22 December 1992135 but arrived early136 and saw C2 in Mr Easling’s bed. There is accordingly an apparently logical rationale for the investigators’ persistence with C2. The non-taping of the very initial conversations with him was
consistent with the practice they adopted with all other complainants. At that stage
127 Investigator Oats’ evidence p1592
128 Investigator Oats’ evidence p1593
129 Investigator Oats’ evidence p1594
130 Investigator Oats’ evidence p1596
131 Investigator Oats’ evidence p1582, Investigator Boydon’s evidence at p 1456
132 Investigator Oats gave evidence at p 1608: “I think if anybody in this room found a lad like this, they would be prepared to help him”. At p 1456 Investigator Boydon gave evidence that C2 was living in appalling conditions and that Oats took a humanitarian approach in helping
him
133 Investigator Oats’ evidence p 1582-3
134 Investigator Oats’ evidence p 1605, Investigator Boydon’s evidence p1474
135 Social worker Reed’s evidence p 561-2
136 Social worker Reed’s evidence pp 561 and 572
C2 had not yet indicated he would make a disclosure, and they were still establishing sufficient rapport for him to make a disclosure.
Detective Conte was cross-examined in detail about the procedure adopted in Police investigations. He gave evidence that he had been in the CIB since February 1986 and that he had trained police officers in relation to investigation of sexual abuse cases, developing a half day course designed to train uniformed female members how to take statements and conduct cognitive interviewing of sexual assault victims. He said that it was important for a police officer interviewing a potential complainant to build a rapport initially with the individual before going into the detail of specific allegations.137 He gave evidence that if the investigator didn’t suspect that they were going to get disclosures about an offence, it wouldn’t be procedure to make notes. He said that the investigator has to make a judgement as to whether a person could make a disclosure. After the rapport building, when you’re going to deal with the “nuts and bolts” of the crime, if it is believed that there would be a disclosure then he would record the matter.138 He said that once you move into taking a statement or asking questions that might deal with specific allegations, from a police perspective, he would expect that to be recorded to ensure accuracy and that the eventual product contains the information that the victim or person is providing, also there is an element of self protection. By record he included audio tape, videotape or hand writing.139
Probationary Constable Cradock also gave evidence about her procedure on contact with a complainant in this matter. Probationary Constable Cradock’s evidence was given by way of a statement read to the jury. She spoke to C8 when he attended at Holden Hill police station in May 2005. She said that at the outset he appeared to be reluctant and so she felt the necessity to build rapport. She therefore had an initial general conversation wherein C8 said he had been abused by his foster carer. She did not take notes of this initial conversation as she intended to and did record the details when she eventually went into the “finer details” as she later compiled the narrative.140
Accordingly the police evidence from Detective Conte and Probationary Constable Cradock was to the effect that it was not expected nor was it police practice to make any contemporaneous note or record where there was no expectation of a disclosure. Secondly, that it was acceptable to have initial conversations to build rapport with a victim, which might include an initial general statement that they were abused, but when the specific “nuts and bolts” or “finer details” of the abuse were asked about and supplied, it would be normal to record that either by way of note or tape.
137 Detective Conte’s evidence at p 1742
138 Detective Conte’s evidence at p 1744
139 Detective Conte’s evidence at p 1743
140 Evidence page 1717-8
This was broadly consistent with what the SIU did. They almost always taped the detailed allegations made on the first occasion that those detailed allegations were made to them, although they did in some cases have conversations prior to the tape being activated wherein they determined whether allegations were likely to be made. In some cases, where allegations were not made on the first occasion they did not tape the interview until a subsequent occasion when allegations were made, most notably with C2 the victim who they persisted with after they had been told by social worker Reed that C2 had been seen in Mr Easling’s bed and was likely to make a disclosure to them. C2 said that he commenced discussing the abuse for a time prior to the tape being turned on, and that the investigators then asked whether they could get him on tape, and then taped.141
What follows from the police evidence earlier referred to, is that it will always be a matter of degree and judgement on the part of the investigator as to how much rapport building and discussion is reasonably necessary prior to commencing to note or record the detail of an allegation already generally made, or likely to be made. Minds might legitimately differ as to that issue.
Here the defence took the view that all statements from any person spoken to by the SIU, no matter how irrelevant, should have been taken and contemporaneously recorded, and that all preliminary contact with all eventual complainants should also have been recorded. That defence position was, as observed, not supported by any direct expert or opinion evidence.
This unsupported position was however put to the Court throughout the trial and then the failure of the SIU investigators to comply with that unsupported position was used to criticise the investigators. This unsupported position was used to support an alleged inference that during these rapport-building initial conversations, all 6 of the complainants spoken to by the SIU must have been convinced to fabricate and then maintain perjured allegations of abuse by Mr Easling, with in the cases of C7 and C6 the active contrivance of C7’s mother and social worker Reed respectively.142
However whilst that was a defence strategy, on analysis there was as earlier observed no legal or other prohibition on investigators being able to attempt to build rapport with persons who they believe are victims of crime, and no evidence that having such conversations was in any of the instances before the court directed to anything other than the legitimate initial building of rapport with a person genuinely believed to be a victim of crime. It therefore provides no suggestion of impropriety and no basis for a further enquiry.
141 C2’s evidence at pp 460-1
142 See earlier transcript references
Committal Material
“The viva voce evidence of the complainants and the investigators, Boydon and Oats, at committal, the magistrate having been satisfied by the documentary records of the investigation that there was prima facie evidence of contamination justified special reasons for the grant of oral examination of witnesses limited to the contact between complainants and the SIU investigators which preceded their complaints.”143
Some background is necessary to understand this argument.
The essence of this complaint seems to argue that the fact that the earlier pre-trial committing magistrate had allowed a “special reasons” application which permitted witnesses to be called and cross-examined about the possibility of contamination, provides support to Mr Easling’s post-trial submission that in fact there was such contamination between witnesses.
Pursuant to Part 5 of the Summary Procedure Act 1921 where a person is charged with an indictable offence a preliminary hearing may be held to determine whether there is sufficient evidence to commit the defendant for trial. The prosecution evidence is submitted in the form of sworn statements. Oral examination or cross- examination is not generally permitted unless the magistrate decides that there are “special reasons” to allow it. Section 106 of that Act provides:
(2) The Court will not grant permission to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.
(3)     In determining whether special reasons exist for granting permission to call a witness for oral examination, the Court must have regard to—
(a)   the need to ensure that the case for the prosecution is adequately disclosed; and
(b) the need to ensure that the issues for trial are adequately defined; and
(c)     the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and
(d) the interests of justice,
but if the witness is the victim of an alleged sexual offence or a child under the age of
12 years, the Court must not grant permission unless satisfied that the interests of justice cannot be adequately served except by doing so.
The principles commonly applicable to such applications were articulated by the
Chief Justice in the case of Goldsmith v Newman (1992) 59 SASR 404:144
143 Paragraph 46.2 of Mr Easling’s post-trial submission
144 Goldsmith remains the definitive case, see the judgements of the Full Court in Gee v
Magistrates Court of South Australia and Anor [2004] SASC 315 and Mountford v Magistrates
Court of South Australia [2006] SASC 184
It may be helpful to magistrates to indicate some circumstances which may amount to special reasons:
1. It may appear that there is sound reason to suppose that some degree of cross-examination will eliminate possible areas of contention and refine the matters really in dispute.
2. Cross-examination may be desirable to establish important facts as the foundation of a defence or to eliminate any possibility of a particular defence. For example, it may be important to ascertain from witnesses in advance of trial whether the defendant showed signs of intoxication or irrationality at relevant times.
3. It may be necessary for a fair trial that the defence have a limited opportunity to explore in advance of trial key issues which may be relevant to possible defences such as bona fide claim of right or duress.
4. In some cases some limited questioning of scientific witnesses may be necessary to explore possible avenues of inquiry as to alternative hypothesis, or the need for further testing or analysis.
5. There may be reason for dissatisfaction with the extent of prosecution disclosure by filing statements and documents pursuant to s104 or otherwise, and cross-examination may appear to be the best way to obtain such disclosure."
As these principles articulate, oral cross-examination can be allowed at committal to allow issues of contention to be examined and matters refined, and to try to establish important facts or key trial issues relevant to a defence. No concluded view about anything is required for a magistrate to embark on such a course.
Whilst I have not separately reviewed the preliminary hearing, accepting on the basis articulated by Mr Easling’s post-trial submission that such a process was sought in relation to the possibility of contamination of witnesses, such a stated basis would have provided an arguable justification for oral evidence on the test articulated in Goldsmith. It was indeed a live pre-trial issue as to whether the charges relating to each alleged victim be heard together, and if there had been cross-contamination between the witnesses that would indeed have been a reason to require separate trials. It therefore made sense to allow oral cross-examination concerning this issue pre-trial to allow that evidence then to provide a detailed evidential basis for the trial Judge to, as he did, conduct a detailed examination of it to determine that very issue when it came before him. Alleged contamination was also a “key trial issue … relevant to … defence”, so on the authorities the magistrate was entitled to allow those issues to be explored in cross-examination.
Accordingly the ordering of such a pre-trial process was not a conclusion by the committing magistrate in relation to such evidence, it just allowed the evidence on a relevant pre-trial issue to be fully explored so that it would be available for definitive consideration by the trial Judge, and to assist the defence at trial.
The trial Judge considered the committal evidence in detail, and came to a conclusion about it during the pre-trial voir dire hearing. At that hearing the defence sought to sever the charges and exclude cross-admissibility of evidence on the basis of the possibility of contamination of witnesses.
The operative decision maker concerning the possibility of evidential contamination arising from the committal evidence was therefore the trial Judge, and not the magistrate.
In rejecting Mr Easling’s application for the severance of the charges relating to the separate complainants, the trial Judge necessarily concluded in accordance with the High Court’s decision in Hoch v The Queen145 that on an assessment of all the evidence at committal including the viva voce cross-examination there was no real chance that there had been the opportunity for contamination.146
Hence the committal evidence referred to by Mr Easling’s lawyers was held by the trial Judge not to establish any of the propositions they now suggest it does establish.
The decision of the magistrate to allow the evidence to be given at the outset has no contrary weight, and the submission to that effect by Mr Easling’s lawyers is plainly wrong. The submission by Mr Easling’s lawyers that that evidence gave any material support for the proposition that the investigators had contaminated the evidence improperly or at all, is accordingly plainly wrong. It therefore provides no basis for any further enquiry.
The Credibility of the Allegations
“Most important of all, the allegations made against Mr Easling by the complainants who had had dealings with the SIU investigators were so transparently false as revealed by inexplicable and unresolvable internal inconsistencies but also in that they directly conflicted with Departmental records. In short, the allegations of assaults were so obviously lies that no other conclusion was open than that the investigators who procured their allegations and had disclosed to each of them that other complainants had incorporated into their allegations accounts of outings, gifts, games, alcohol, massage and straddling.”147
When the argument is put that the allegations of the complainants were so transparently false in themselves as to warrant rejection, it is appropriate to look at the two cases in broad relief as to the inherent likelihood or unlikelihood of either. This is necessary to properly consider Mr Easling’s post-trial submission, and only for that purpose. It is not done to suggest that Mr Easling may be guilty of any offence, no such suggestion is made.
145 (1988) 165 CLR 292 at pp 297 and 304
146 Trial Judge’s ruling at p 323-4 and reasons articulated at p 1099
147 Paragraph 46.3 of Mr Easling’s post-trial submission
Mr Easling is fully entitled to the continuing presumption of innocence and no contrary conclusion should be drawn from this analysis.
It is true to say that whilst the formal issue to be addressed by the jury was of course whether the prosecution had proven its case beyond reasonable doubt, in practical terms the fundamental issue at this trial was who was lying.
Either Mr Easling was lying, or eight complainants, both SIU investigators, the social worker concerned148 and possibly C7’s mother149 were all lying. The defence case was that the investigators had for reasons best known to themselves corruptly and biasedly150 conducted a knowingly151 highly improper and prejudiced152 investigation to induce complaints against Mr Easling regardless of the truth,153 and in denying that they corruptly and improperly had fed details to witnesses to enable them to make these allegations up, were perjuring themselves. Ms Powell QC also claimed to the jury that the investigators both destroyed records they did have and failed to record matters, and did both of these things to deliberately cover up what was indeed said.154 In answer to the evidence of these twelve witnesses, Mr Easling gave evidence, denying all the allegations. He called character evidence, and some further evidence that was indirectly supportive of his case for example concerning matters such as when his shack was built and whether he kept alcohol in the house as alleged by some complainants.
Looked at on this broad brush basis, it cannot be said that the sworn evidence of these twelve witnesses was inherently more likely to be all in some way variously corrupt, biased, knowingly improper, prejudiced, perjured and in any event completely wrong, than the single essentially uncorroborated denial advanced in response.
In the face of this weight of apparent prosecution evidence the defence advanced a series of theories to explain why, in different ways, at different times, every one of
148 As well as Ms Powell QC suggesting that social worker Reed was complicit in C6 making up his allegations, see address to jury by Ms Powell QC at pages 2397-2398, Mr Easling also gave evidence that he believed social worker Reed didn’t see what he claimed to see when Reed gave evidence that he saw C2 in Mr Easling’s bed on 22 December 1992, see Mr Easling’s evidence at p 1863 lines 29-30
149 There is a difficulty in relation to C7’s mother as although in Ms Powell QC’s final address to the jury she inferred at pages 2407-8 that C7’s mother must have been complicit in
conveying themes of complaint to C7 to enable him to conveniently fabricate similar perjured
allegations against Mr Easling, the defence never put any of this to C7’s mother when cross- examined at pp 1162-5. However given that XXXXX told the prosecutor in re-examination that she was never given such allegations, the effect of Ms Powell’s submissions to the contrary to the jury inferred that C7’s mother must be lying as well
150 defence opening p 400
151 Defence address p 2210
152 Defence opening p 401
153 Defence opening p 400
154 Defence address p 2221 at lines 22-37
these witnesses was lying. Every one of these theories was denied by every witness concerned, and no direct evidence was called in support of any of them. The theories were as follows. I cite references from Ms Powell QC’s address to the jury because not all these theories were put to the witnesses concerned.
•That C1 was lying to his close friend when he confided the abuse to her, because he wanted some excuse to bring up his sexuality with her.155 Earlier, in cross-examination Ms Powell QC alleged two different further theories, that he decided to blame his homosexuality on someone else156 and that he lied and fabricated the allegations to get his friend’s sympathy and explain to her why he was homosexual.157
•That C2 decided to lie and make up allegations because the investigators offered him help,158 and that he wanted criminal injuries compensation.159 In fact Ms Powell QC alleged in her address that all the complainants were in it for the criminal injuries compensation and needed a conviction for that to occur.160
Unfortunately, this was not put to all the complainants by the defence.
•That C3 decided to lie and fabricate allegations because he wanted criminal injuries compensation.161
•In relation to C4, that although he was lying, no theory as to any motive or reason to lie was identified in the defence address to the jury.162
•That C5 lied and fabricated allegations of sexual abuse because the investigators had got to him, destroyed his whole image of what Mr Easling was to him, and sewed ideas into his head that Mr Easling had sexually abused boys in his care.163 That he was so devastated by what he was told about Mr Easling that he must have decided to fabricate allegations against Mr Easling.164   That investigators poisoned him against his good friend
Mr Easling.165
155 Defence address p 2226
156 Put by Ms Powell QC to C1 at p 1304
157 During C1 evidence at p 1377 line 38 to p 1378 line 2. This was denied by C1
158 Defence address p 2303
159 Defence address p 2308-9, this was denied see C2’s evidence p 534
160 Defence address p 2308 line 17 to p 2309 line 3
161 Defence address p 2321 and 2327. C3 denied this. He said that although he had initially thought it would not be worth bringing everything up unless there was compensation, his
mother had said to him ‘don’t even worry about compensation, worry about justice’ and he had come to realise just that, see C3’s evidence at 694. At p 700 he gave evidence he had
never either sought compensation nor seen a solicitor about it
162 Defence address p 2343 to 2354
163 Defence address p 2355 at lines 2-6 and line 21
164 Defence address p 2359 at lines 11-14. C5 said that at p 859 and 860 he saw on TV that
Mr Easling had been arrested for abuse of children in his care, and said at p 849-850 he spoke to someone who might have been Boydon who said four people had made complaints against Mr Easling. At page 949 he gave evidence that he was never at any stage told any of
•In relation to C6, that although he was also lying, no theory as to any motive or reason to lie was identified in the defence address to the jury.166
•That C7 decided to lie and fabricate allegations because he wanted to agree with a theory of his mothers (that he had been abused), to provide her with an excuse for his antisocial behaviour during the years 2001 and 2002.167
•That C8 lied and fabricated these allegations in May 2005 so as to “… strategically employ … a false allegation about being a victim of sexual abuse in justifying the court extending further leniency to him”. C8 made the allegations to his mother in May 2005. The advantage the defence suggested he sought to gain by this was in relation to when he sought bail and pleaded guilty to charges against him a year later, around March 2006.168 While C8 was a troubled youth and had been in contact with police for several years169 it is a significant leap to suggest that he disclosed abuse to his mother as part of some complicated plan to get benefit from a court nearly a year later.
As noted, each of these theories was denied by all relevant witnesses, and there was no direct evidence in support of any of them. For one complainant, three different theories were advanced. For two of the complainants, not even a theoretical motive to lie could be identified.
Therefore, comparing the broad framework of the cases, is the prosecution case “transparently false” as compared to the defence case, as suggested by Mr Easling’s post-trial submission?
The prosecution case was that Mr Easling had taken advantage of selected troubled and at-risk youth that had been placed in his care and done so for his own sexual gratification. The broad framework of the defence case was that he had not done so, and necessarily that 8 of the 60 youths spoken to who had been placed with
the other allegations against Mr Easling. He said at p 866 that some time after he spoke to the investigators he contacted his social worker who then arranged for him to speak to the police and he spoke to a detective Foley (unconnected with the SIU) and disclosed the abuse against him by Mr Easling. At p 948 lines 4-22 he denied that he had been upset by the suggestion that others had said things about Mr Easling
165 Defence address p 2362
166 Defence address p 2383-2397 On the basis that C6 recalls a conversation with his social worker Reed before speaking to the investigators but Reed did not recall it, at page 2397 Ms
Powell QC suggests to the Jury that Reed fed themes to C6 who then with no identified motive made up a series of allegations of abuse against Mr Easling
167 Defence address p 2405. The defence never put to C7’s mother in cross-examination that she had such a theory, see pp 1162-1165
168 Defence address p 2415-2417. This was denied by C8 at p 1202. At p1201 he said he
initially disclosed the abuse to his mother in 2005 after he had heard publicity that Mr Easling had been arrested. In March 2006 he pleaded guilty to some offences unrelated to Mr Easling
169 Exhibit D39 was C8’s police record. He was cross-examined by defence counsel on this variously from p 1183 to p 1205
decided to concoct false allegations against him some without even a theoretical motive to do so.170 The motives that were suggested, all denied, cannot be said to be individually compelling and, still less, cumulatively likely to have all co-incidentally been motives, together with two complainants with no identified motive.
Accordingly, the prosecution case does not appear to be “transparently false”, necessarily connoting impropriety on the part of the investigators as suggested.171
This submission accordingly provides no basis for a further enquiry.
I turn to the specific matters articulated in Mr Easling’s submission as to “Why the Complainants had no Credibility”.172 I reiterate that this is not to suggest that Mr Easling may be guilty. Quite the contrary. Mr Easling was acquitted and remains fully entitled to the ongoing presumption of innocence.
Complainant C1
Mr Easling’s post-trial submission suggests that C1 had no credibility on the following basis.173
Firstly, it is suggested that he gave inconsistent statements in cross-examination, although none are particularised in the submission. Secondly, it is suggested that there were a number of key features of his evidence that demonstrated his account was unreliable and untruthful, however, again, none are identified in the submission.
C1 was cross-examined for 105 pages174 and over that period the defence put suggested inconsistencies as to some of the detail in his statements over time, the exact order of events and the ability to be certain about dates and times. C1 was giving evidence in October 2007 about a claimed long sexual relationship with Mr Easling in the years 2001-2003, and being asked specifically about the several particular parts of that relationship which formed the particulars of the charges before the court concerning C1. C1 conceded some of the inconsistencies, indicating that with the passage of time it was difficult to be completely accurate. For example, at page 1311 he said:
“As I’m sure you can appreciate, there is not necessarily a very clear outline in terms of times and dates in relation to the events which had transpired and as such, to be honest, all the activities in my mind are quite jumbled together. So it is very difficult for me to dissect it in chronological order, which I can assume
170 Investigator Boydon gave evidence that the Investigators spoke to about 60 of the placements with Mr Easling, see p 1460
171 I reiterate, this is not to suggest Mr Easling may be guilty. Mr Easling was acquitted and is fully entitled to the ongoing presumption of innocence
172 Mr Easling’s post trial submission at p 16
173 Mr Easling’s post trial submission at pp 16-17, paras 50-53 inclusive
174 C1 evidence pp 1273-1378
you are attempting to get at, so I can tell you at this point … considering it is six years after the event.”
As with the other complainants, C1 was trying to recall a series of events from a troubled time in his life, from many years before during his childhood. Further, C1 evidence was that he had an ongoing regular contact including many sexual events with Mr Easling over time. In these circumstances some inconsistencies and difficulties in accuracy concerning detail would appear highly likely, and would not necessarily connote any lack of reliability concerning the matters charged.
Mr Easling’s post trial submission states “the most significant issue exposed in cross- examination was the falsity of claims of contact with Mr Easling”, citing the evidence in answer to a question in cross-examination that he recalled seeing Mr Easling between “Christmas 2002 or thereabouts and July 2003” on several occasions.175
This is said by Mr Easling’s lawyers to be the most significant issue proving the falsity of C1’s evidence.176 It is therefore appropriate to closely consider that passage of evidence and consider its effect.
Mr Easling’s lawyers put to C1 a series of emails between Mr Easling and C1 occurring from February to August 2003,177 which appeared to establish that the two remained in regular email contact over that time. Mr Easling’s lawyers rely on a line from one of those emails said to have been sent by Mr Easling on 8 May 2003178 as follows:
(after putting earlier parts of it, this complainant was asked about an extract from an
8 May 2003 email document …)
Q.     “you should hear in the next day or two whether you get an interview.
XXXXX keep wanting to catch up with you and XXXXX , as we last saw you at Christmas, a long time. Perhaps you or XXXXX could give them a call when you’ve got time, even if its just to say hello”. Do you remember getting that email.
A.    I can’t remember the specific details about the email.
Q.     But that was the truth of the matter; you’d not been to Easling’s place since Christmas time 2002.
A.    If that’s what is indicated.
Q.     Its just a rubbish that you were going there in 2003 and there were these sexual activities going on.
175 C1 said he saw him “it was on a one month frequency, again indicating that that frequency was flexible”, p 1331 and that there was sexual activity on the majority of those occasions, p
1332
176 Mr Easling’s post trial submission p 16-17 paras 51-52
177 Emails dated 25/2, 26/2, 27/2, 28/2, 3/3, 3/3, 5/5, 5/5, 14/3, 14/3, 14/3, 17/3, 18/3, 19/3,
19/3, 7/5, 7/5, 8/5, 10/6, 2/7, 2/7, 2/7, 3/7, 3/7, 6/8, tendered as a bundle comprising exhibit
D44 at p 1335
178 C1’ evidence p 1339 line 2 et seq
specific date was 5 or 6 July of 2003.
Q.     That’s right, but you told us it was going on, on this, about once a month.
This was about the seventh or sixth time in July 2003. That’s what you’ve told us, wasn’t it.
A.    Yes, that’s correct.
Q.     Here is a contemporaneous note, a contemporaneous email, which you receive, which says that you haven’t been to see the Easlings since Christmas 2002. What do you say about that.
A.    Well, whatever is written, again is – as I’ve outlined before, I’m not clear on the specific details, so again, while I’ve indicated – sorry, I don’t understand why this is - regardless. Sorry, I have indicated I’m not clear on the specific details, so if you provide evidence that I haven’t seen him, then I can accept that statement.
Q.     Would you accept this statement: that you got an email on 8 May 2003 in which Mr Easling said to you ‘We saw you last at Christmas’.
A.    I can accept that.
Several observations can be made concerning this exchange, and its effect.
Firstly, the period Christmas 2002 to 8 May 2003 and the activity therein was not the subject of any of the charges against Mr Easling. It was part of the general history of the relationship led by the Crown and cross-examined by the defence.
C1 had no independent recollection of the detail of the email or the line in the email upon which the defence relied. The effect of his response was, well if that is really the case then I accept I was mistaken. The defence never proved the emails were accurate, they were simply tendered on the basis that they were generically identified as having headers indicating that they were received and sent by C1.179
Secondly, the line concerned, “XXXXX keep wanting to catch up with you and XXXXX , as we last saw you at Christmas, a long time. Perhaps you or XXXXX could give them a call when you’ve got time, even if its just to say hello” ostensibly refers to when “we”, ie the group comprising Mr Easling and primarily the two XXXXX boys, had seen C1. It is not completely clear that it would cover occasions where C1 and Mr Easling had met alone.
Finally, it essentially covers the four months January to April,180 not the seven months inferred by Mr Easling’s post-trial submission.
In answer to the questions, C1 said that if that was right, he was mistaken about the frequency of contact over that (four month) period some four years before.
Several possible interpretations were and are open on this evidence.
179 P 1333 line 28-29 and p 1335 lines 7-9
180 25 December 2002 to 8 May 2003 to be exact
One interpretation might be that the email was not accurate, and accordingly had no bearing on C1’ evidence. It’s accuracy was, in fact, accepted rather than strictly proven. One interpretation might be that C1 was telling the truth about the charged events but was, as he said, not completely clear in his memory about the frequency of this uncharged sexual contact during the first four months of 2003. Another interpretation might be that the emails, if accurate despite never having been formally proven, don’t on semantic analysis actually prove that Mr Easling and C1 did not see each other by themselves during the period concerned, and that C1 was telling the truth. Another might be that C1 was still telling the truth about the charged events and the general sexual contact with Mr Easling, but did exaggerate his sexual contact with Mr Easling, either consciously or unconsciously, in the face of strident cross- examination from defence counsel that everything he was saying was “rubbish”.181
Another possibility is the position suggested by the defence, that he lied about this
aspect of the uncharged sexual offending, and that indicates he may be or was also lying about the charged events. Lies about an uncharged event do not however mean as a matter of law that a court must or should refuse to accept other parts of the person’s evidence as untrue, even if the case involves uncorroborated evidence concerning a sexual offence.182
Juries are regularly directed that it is for them to determine whether they can rely on a witness’ evidence, and that they are entitled to accept one part of a witness’ evidence even if they reject another. This direction was given in this case and reflects settled law.183
It was a classical jury question as to which, if any, of the above possibilities they accepted as the case, and if so beyond reasonable doubt. It is not obvious that one is inherently more possible than another, nor that the evidence necessitates the conclusion that C1 was lying about the events in question, and necessarily about the separate events that were the subject of the actual charges.
Accordingly, the matters put by the defence do not lead to any necessary conclusion that C1 lied or was necessarily wrong, nor that his evidence was “transparently false” as argued by Mr Easling’s lawyers. His evidence accordingly provides no basis upon which to conduct a further enquiry.
Complainant C2
Mr Easling’s post-trial submission suggests that C2 had no credibility on the basis of seven matters.184
181 This occurred on numerous occasions, see for example p 1332 line 4 and p 1339 line 24
182 See R v Liddy(2002) 81 SASR 22 at pp 66-73 and R v Hart[2004] SASC 363 at para 56
183 Trial Judge’s summing up at p 5, and for a recent acknowledgement of the principle see R
v Vincent [2009] VSCA 87 at para 12
184 Mr Easling’s post-trial submission at pp 17-19, paras 53-60 inclusive
There were three charges concerning this complainant. The first related to an alleged event on about 22 December 1992 on the last day of a one month emergency placement with Mr Easling, the next two related to alleged events occurring some time after that, when he would visit Mr Easling and stay overnight.185   This complainant said he continued to visit Mr Easling until he was about 22 years old, which would be about 2001.186
Firstly it is said that towards the end of 1992 the trial evidence showed that this complainant made 3 suicide attempts and consequently was placed in the Glandore Unit with 24 hour supervision. For this reason it is said that his confinement made it “highly unlikely if not impossible that he could have had contact with Mr Easling in that period”, the period being “between the end of 1992 and 1993”.187
The first alleged offence occurred on about 22 December 1992. It was an agreed fact that this complainant was on placement with Mr Easling at the time,188 and social worker Reed corroborated that this complainant was there with Mr Easling on that day.189 Reed arrived early and found the complainant in Mr Easling’s bed.190 This matter therefore could have no relevance to this charge, as the evidence was uncontroverted that this complainant was with Mr Easling at the time of this alleged charge, and had been living there for a month at the time of the first offence. Accordingly it is clear that there was continual contact for this period at “the end of
1992”, contrary to Mr Easling’s post-trial submission.
There is also the period “and 1993” mentioned in the submission, during which it is submitted by Mr Easling’s lawyers that his placement at Glandore (I assume from 22
December 1992 onwards) for some unspecified period into 1993 rendered contact with Mr Easling involving the further two alleged offences “highly unlikely, if not impossible”.
The two further alleged offences occurred on one of the many occasions after
December 1992 when this complainant stayed overnight while visiting Mr Easling.191
The complainant gave evidence that it was some time after the conclusion of the December placement.192 He said it was on an occasion shortly after an incident with a motor bike193 that the complainant went back to Mr Easling’s place, stayed overnight, and the further offences occurred.194 He said that after this incident he saw
185 C2’s evidence p 433 lines 26-28
186 C2 was born in 1979, see his evidence at p 410
187 Heading to para 54 of Mr Easling’s post trial submission
188 Agreed fact, Trial transcript p 2075 at lines 33-34
189 Social worker Reed’s evidence p 561
190 Social worker Reed’s evidence pp 561 and 572
191 C2’s evidence p 434 lines 16-22 and 29-32
192 C2’s evidence p 434 lines 16-22, p 435 lines 4-8, 436 lines 21-23,
193 C2’s evidence p 436 lines 21-30
194 C2’s evidence p 436 to 443
Mr Easling less frequently, maybe once every six months.195 He said he did continue to see him for some years, until he was about 22.196
Defence counsel told this complainant in cross-examination that this complainant had told the prosecutor in evidence-in-chief that these events had occurred between two or three weeks after the first offence, which defence counsel also told this complainant “would have been sometime early January 1993”, and on the strength of that premise, secured an affirmative response.197 In fact these were misleading questions, as a close perusal of the evidence this complainant gave to the prosecutor in evidence-in-chief over transcript pages 433 to 444 concerning the timing of the second two offences indicates that, as described and footnoted in the previous paragraph, he had not told the prosecutor anything as specific as that it was two or three weeks after the first placement. Nor did he mention that at any other time in examination-in-chief.198 Accordingly the transcript indicates that defence counsel had secured assent to the proposition that the events occurred two to three weeks after the placement on the inaccurate premise that such evidence had already been given during examination-in-chief to the prosecutor, when that was not the case at all.
Accordingly, even if this complainant had remained in Glandore for several weeks after he was taken there on 22 December 1992, he had not independently asserted that the second two offences by Mr Easling had happened during that time at all. He was led to assent to that proposition in cross-examination by an inaccurate representation by defence counsel that he had already done so in examination-in- chief.
I examine the other half of the proposition forming the basis of this submission, whether being in Glandore would have in any event prevented this complainant from having periodic contact with Mr Easling.
It is clear that social worker Reed took this complainant to Glandore on 22 December
1992.199
This complainant agreed with a question in cross-examination to the effect that he was taken there because Mr Easling worked during the day whereas at Glandore they “could supervise you 24 hours”.200
It was not however suggested in cross-examination that he was imprisoned at the
Glandore unit, or that he was unable to leave there.201 Reed was also clear that it
195 C2’s evidence p 444 lines 7-20
196 C2’s evidence p 434
197 C2’s evidence p 466 lines 23-31
198 C2’s evidence pp 410 to 448
199 C2’s evidence p 417 line 32 and social worker Reed’s evidence p 564 lines 1-2 and 8-10
200 C2’s evidence p 537-538
201 Cross examination variously by Ms Powell QC, for example at p 564 and when Reed was recalled for further cross examination at p 1698; whilst putting that he went to Glandore for
was not a secure facility,202 and at least at the time defence counsel cross-examined Reed, defence counsel agreed that that she was not suggesting that they were secure facilities203 and she also suggested that the records showed he was only back in Reed’s care for some eight days.204
Social worker Reed gave evidence that this complainant was going to Glandore so that he could have 24 hour observation, but the plan decided by Professor Kosky was that he would also remain in close contact with Mr Easling and continue to be supported by Mr Easling.205
This complainant gave evidence that the night before the last two offences he had been at Glandore, however that he didn’t like the unit so he hardly ever stayed there.206
The effect of the evidence is that while the Glandore Unit provided the opportunity for
24 hour supervision, presumably because it was staffed 24 hours, it was not secure and there was nothing preventing this complainant from staying out overnight or visiting Mr Easling. The evidence cited is to the contrary of Mr Easling’s post-trial submission, in that the very plan devised was that close contact with Mr Easling would still occur while this complainant was at Glandore.
Hence there is no evidence to support the proposition put by Mr Easling’s lawyers that “his confinement made it highly unlikely, if not impossible that he could have had contact with Mr Easling in that period”. In fact the evidence is to the opposite effect.
The second matter put by Mr Easling’s lawyers that is said to adversely affect this complainant’s credibility is the fact that this complainant said that Mr Easling had used a wooden roller to massage him at Mr Easling’s home in Blackwood and at the shack in Kangaroo Island, and had provided him with alcohol, whereas no alcohol was found at Mr Easling’s home when searched. It is also said that no other complainants said that a wooden roller was used to massage them.207
The first observation that might be made is that the alleged offending conduct against this complainant involving the use of alcohol and a roller massager was alleged to have occurred in December 1992 and early 1993, whereas the search of Mr Easling’s house occurred some 11½ years later, when he was arrested on 31 July
supervision or close supervision Ms Powell never asked the relevant question of whether he was free to leave at any time or was prevented from staying out if he chose to
202 Social worker Reed’s evidence p 565 at lines 31-33
203 Statement by Ms Powell QC transcript p 565 line 34
204 Statement by Ms Powell QC transcript p 565 lines 34-37
205 Social worker Reed’s evidence p 564 lines 23-34
206 C2’s evidence p 437 lines 1-4
207 Mr Easling’s post-trial submission p 17 at para 55
2004.208 It would be quite unsurprising that items like this might not still be present, over a decade later.
The second observation that might be made is that the alleged events concerning this complainant were some years prior to any of the other alleged offences, so that if the massager broke or was discarded during those intervening years, that might hypothetically explain why the roller massager was allegedly used on this complainant and not others who were significantly later in time.209
The third observation that might be made is that at the stage of the police search of Mr Easling’s premises on or after 31 July 2004, Mr Easling had had considerable notice that he was being re-investigated, and would accordingly have had ample opportunity to discard any incriminating items used on alleged victims, such as a roller massager or alcohol. He had originally been spoken to and formally interviewed by police in relation to the initial allegations in October 2003,210 at which time he had a lawyer and had received legal advice,211 and would have likely known by receipt of correspondence from police sent to his lawyers in December 2003 that further action may be taken if any new information came into the hands of police.212 Mr Easling gave evidence that on 8 July 2004 he received a message to call C2, and when he rang C2 back C2 told him that detectives were investigating Mr Easling and that there were further sexual complaints against Mr Easling.213 Mr Easling said that at C2’s request he typed out draft letters of complaint from C2 about these detectives and took them to C2’s workplace.214 It was not until three weeks after that, on 31 July
2004, that police attended and searched his houses. There was accordingly ample time for a person to hypothetically discard any incriminating items prior to the police search.
In relation to alcohol, Mr Easling said that he did occasionally drink alcohol, and that he did have alcohol on the premises on a range of occasions. He initially had sherry, port and red wine which he said he used for cooking, but after a while with the kids drinking it he said he stopped keeping it.215 He said he would also be given wine at Rotary or for giving a speech at a conference, and that used to be drunk by the older kids so he changed his practice and gave them away and had a practice not to keep alcohol on the premises.216 He also said that he kept bottles of spirits in the house as
208 Detective Conte’s evidence p 1724 and p 1726 lines 4-6.
209 The allegations concerning this complainant concerned December 1992 to early 1993, whereas C3 was not placed with Mr Easling until 1995 (agreed fact p 2076), C4 1996 (agreed
fact p 2077), C5 1996 (agreed fact p 2078), C6 1998 (agreed fact p 2082), C7 2000 (agreed fact p 2083), C1 2000 (agreed fact p 2084), and C8 2002 (agreed fact p 2084)
210 Detective Conte’s evidence p 1720
211 Detective Conte’s evidence p 1722
212 Detective Conte’s evidence p 1724
213 Mr Easling’s evidence pp 1870-1871
214 Mr Easling’s evidence p 1871 line 7 to p 1872 line 3
215 Mr Easling’s evidence p 1841
216 Mr Easling’s evidence p 1842
gifts however gave them away soon after.217 He said that alcohol was brought to the house by some kids however he said if that happened he would throw it out.218 Ms Best was the co-owner of a shack at Kangaroo Island with Mr Easling and said that while she had not seen Mr Easling drinking there, there was a bottle of whiskey hidden there for some time, that she and the other co-owner Ian used.219 Accordingly it is clear from evidence called in his own case that Mr Easling did occasionally drink and had on various occasions over time had alcohol at the premises which some of the placed children had consumed.
Accordingly, for all these reasons, the absence of alcohol or a roller massager when the police searched on 31 July 2004 would not necessarily taint the credibility of a complainant who said that they had been applied to him by Mr Easling over a decade earlier.
The third matter put by Mr Easling’s lawyers that is said to adversely affect this complainant’s credibility is that he gave a detailed description of the layout of the shack at Kangaroo Island in particular the loft where he said he was massaged by Mr Easling with the wooden roller massager (in 1992), whereas in 1992 that shack on Kangaroo Island had not yet been built.
This complainant did not suggest that any of the offending against him had occurred at Kangaroo Island, so any inaccuracy about this issue relates to a background factual matter rather than any of the actual charges. It is not suggested that this evidence affects the evidence of the actual offences, apart from reflecting generally on his credibility or recall.
The first observation that might be made is that it was common ground that this complainant knew and had substantial periodic contact with Mr Easling for over a decade, between about the age of 11 to the age of 22.220
The second observation that might be made is that was common ground that Mr Easling did take this complainant to stay on Kangaroo Island during the placement in November-December 1992. This complainant said that he was taken there a couple of times during the placement, and a massage occurred on the second occasion.221 He gave evidence that he had initially only recalled one trip to Kangaroo Island during the placement in 1992 however prior to trial he recalled a
217 Mr Easling’s evidence p 1842
218 Mr Easling’s evidence p 1843
219 Ms Best’s evidence p 2036
220 C2’s evidence at pp 411 and 434 was that he saw him regularly in 1992-3, then maybe six monthly until the age of 22. Mr Easling’s evidence was that he met C2 in 1992 and had contact with him as a street kid (p 1849) then he was placed with him in November 1992, that
after mid 1993 he next saw him at about age 15 (about 1994) (p 1866), then saw him
regularly from 1999 (p 1866) including trips to Kangaroo Island and staying overnight at his house (p 1868), visiting perhaps 20 or 30 times between 1999 and the middle of 2004 (p
1869)
221 C2’s evidence p 424
second trip.222 Mr Easling said that he took this complainant there during this placement in late 1992223 but did so only once at that time and that he did not massage him.224 Mr Easling gave evidence that although he owned the land in
1992225 upon which the shack was built, it was not actually built until later. It was an agreed fact that building work for the shack was commenced on 28 November
1994.226 Mr Easling and Ms Best gave evidence that when they went there in 1992
and on other times prior to its completion they stayed at a little cottage immediately
“adjacent” to their land.227
It was also common ground that Mr Easling also took this complainant to the new shack, on occasions, after it was built.228
This complainant gave evidence in 2007. He was being asked to recall events from
15 years prior, when he was a child. He said that the visits to Kangaroo Island in
1992 were at a place he understood was owned by Mr Easling and his friends at D’Estrees Bay, which was small with an attic sleeping area,229 and he identified a rough plan of it which was tendered as P4.230 In cross-examination at the 2007 trial, firstly the defence put to him a bundle of photographs of a shack at D’Estrees Bay in Kangaroo Island, which he then said he recognised as the one he stayed in, in 1992. The bundle was tendered as D5.231 This was apparently a little different to the adjacent “Dolphin Cottage”. Later in cross-examination photos of “Dolphin Cottage” were identified to this complainant in a bundle, and he said that he did have a recollection of staying at it as well, and it could have been in 1992. The bundle of photos of Dolphin Cottage were tendered as D7.232 It was common ground that these two cottages were “neighbouring”233 or “adjacent”.234
Accordingly, it seemed that this complainant’s initial evidence about which shack a background massage had occurred in, not directly connected with any offending, some 15 years prior, was wrong. When later shown photos of the correct shack, he immediately conceded that with the passage of time he may have been wrong about that background fact, and it may have been there. Giving evidence that it was one shack rather the other shack had no particular probative significance, and there was
222 C2’s evidence pp 467 and 523
223 Mr Easling’s evidence pp 1854 and 1856
224 Mr Easling’s evidence p 1858
225 Mr Easling’s evidence pp 1836-1837 and p 1857 line 4
226 Transcript p 1855-1856
227 Ms Best’s evidence p 2029 line 10 to 2030 line 3, Mr Easling’s evidence p 1856
228 Mr Easling’s evidence p 1858, Ms Best’s evidence p 2031
229 C2’s evidence p 422
230 C2’s evidence p 423
231 C2’s evidence p 468
232 The photos were tendered at p 527 when C2 acknowledged that he had stayed there at some time, and that it could have been any year when he was younger, observing that the
events in question were 15 years earlier. Ms Best acknowledged at p 2030 that D7 was of
“Dolphin cottage”
233 Mr Easling’s evidence p 1856 line 8
234 Ms Best’s evidence p 2029 line 16
no identified motive or advantage in the witness doing so. It was never in dispute he had been to both shacks, and not in dispute that Mr Easling took him to a shack at about the time he said he was taken to one in 1992.
All this suggests that this was an error in recollection concerning the location of a peripheral background fact, of the kind that you would expect 15 years after the event, and as such not something that would ordinarily reflect adversely on the credibility of a witness. It was therefore not a “crucial flaw” in this complainant’s complaint, as submitted by Mr Easling’s lawyers.
The fourth matter put by Mr Easling’s lawyers that is said to adversely affect this complainant’s credibility is that the first occasion of alleged sexual abuse occurred in circumstances that rendered it “highly unlikely that Tom Easling would sexually abuse C2 on that occasion”, and it is also argued that it was significant that no complaint of sexual abuse was made at the time.235
The circumstances that are submitted by Mr Easling’s lawyers as rendering abuse unlikely are cited as “On that morning there was a pre-arranged meeting between the accused and a social worker, Mr Craig Reed, who transported C2 to the Glandore Unit.” 236 The argument, I assume, is an argument that it is unlikely that a carer would abuse a person on the morning that the person was being picked up by their social worker to go somewhere else. The argument is accordingly that, even if Mr Easling were an abuser, surely even an abuser would not have perpetrated abuse on a day when the abuser knew a social worker would be attending to take the child away.
As the argument suggests that the alleged actions were inherently unlikely, the argument necessarily requires one to consider the potential motivations and behaviours of a potential or actual abuser in such a situation, and consider the potential options and the motivations concerning the options. Then, it requires a comparison of the relative temptations and motivations concerning those options, and a consequent assessment of the relative likelihood or unlikelihood of those options. Such an analysis, reliant as it must necessarily be on an assessment of the likely motivations of an alleged sex abuser, carries with it obvious difficulties, limitations and must involve a significant degree of speculation.
Obviously the motivation to commit sexual abuse must potentially involve very significant psychological and subjective elements which the history of such offending by others shows can be very powerful, and the risk of detection that an offender may be prepared to accept to achieve the gratification they seek may vary widely. Considerations such as this must be carefully borne in mind when assessing the submission that any particular circumstances would or would not have dissuaded an alleged offender. For example, circumstances that may completely dissuade one potential offender may not inhibit another at all.
235 Para 57 of Mr Easling’s post-trial submission
236 Para 57 of Mr Easling’s post-trial submission
I turn now to consider the circumstances in this instance.
This complainant had been on the streets, and met Mr Easling in that context. A few weeks later he had been placed with Mr Easling on an “emergency placement”. He stayed with Mr Easling for about a month.237 He gave evidence that over that month Mr Easling would massage him, and that in the mornings he was allowed to run into Mr Easling’s bedroom and they would wrestle.238 He said the first massage occurred at Mr Easling’s suggestion only a few days after he was placed with Mr Easling.239
He said that Mr Easling also took him to Kangaroo Island and also massaged him there.240 He said that Mr Easling gave him alcohol two or three times a week and that he also smoked marijuana with Mr Easling.241
He had also made three attempts on his life whereby he had been taken to hospital.242 The complainant’s social worker Mr Reed said there were a number of concerns about his behaviour, and on 21 December 1992 a decision was made to end the placement.243 There were earlier concerns that the complainant was suicidal, and social worker Reed had consulted with Professor Kosky at the Women’s and Children’s Hospital.244 As a result, Mr Reed spoke with Mr Easling on 21 December
1992 and told him that the next day the placement would end and the complainant would be moved.245
Reed gave evidence at the trial that he did attend Mr Easling’s house on the morning of 22 December 1992246 but his normal practice was to arrive early and he did so on this occasion247 and saw C2 in Mr Easling’s bed.
The first observation that might be made is that social worker Reed gave evidence that he arrived earlier than arranged.
The second observation that might be made is that the evidence of this complainant was to the effect that Mr Easling had exhibited considerable “grooming” behaviour over the previous month. This alleged behaviour had included taking him on trips and massaging him, wrestling with him in bed, supplying him with alcohol and allowing him to smoke marijuana.
237 C2’s evidence p 413
238 C2’s evidence p 414
239 C2’s evidence p 418
240 C2’s evidence p 428
241 C2’s evidence pp 426-427
242 C2’s evidence p 537, Mr Easling’s evidence p 1859
243 Social worker Reed’s evidence p 558
244 Social worker Reed’s evidence p 559
245 Social worker Reed’s evidence p 560, Mr Easling’s evidence p 1861
246 Social worker Reed’s evidence p 561-2
247 Social worker Reed’s evidence pp 561 and 572
Therefore the evidence of this complainant was to the effect that by 21 December
1992 Mr Easling had invested considerable effort in him. He had allegedly established ongoing physical contact through massaging the complainant, had allegedly established a pattern of allowing him into his bedroom in the morning for wrestling, and had also allegedly supplied the complainant with alcohol and tolerated his drug taking. On 21 December 1992 it is common ground that Mr Easling was told that the complainant would be moved away the next day. Hypothetically, if Mr Easling had been “grooming” the complainant, the news of the complainant’s imminent removal meant that there was only a short period to carry out any hypothetical plan to have sexual contact. It might therefore provide an alleged motive to do so, despite the element of risk. The allegedly established pattern of allowing the complainant into his room in the morning for wrestling would provide the obvious opportunity to do so.
It is clear that the alleged abuse was over by the time social worker Reed arrived.248
On the other side of the ledger is the argument suggested by Mr Easling’s lawyers, the suggestion that an abuser would not abuse a person if they thought that person’s social worker was going to attend that morning and transfer him somewhere else.
All of these considerations might well hypothetically weigh on the mind of a potential abuser.
Which consideration would hold most sway would, one might think, depend on the individual concerned and the degree of risk that that person might be prepared to accept for whatever was the degree of anticipated sexual satisfaction.
In light of all these considerations, and giving full weight to Mr Easling’s lawyers’ legitimate argument, it is not obvious that an alleged abuser who had allegedly been grooming a potential victim carefully for some time, would fail to take advantage of a suddenly reduced window of opportunity to perpetrate their planned abuse. That impending departure and consequent imminent loss of opportunity might provide a hypothetical potential abuser with a strong motive to act. Accordingly, the allegations were not necessary “highly unlikely” as submitted by Mr Easling’s lawyers. I reiterate that none of this is to suggest that Mr Easling may have been guilty of the allegations. He was acquitted and remains fully entitled to the presumption of innocence.
A related argument put by Mr Easling’s lawyers was that no immediate complaint of sexual abuse was made by this complainant to social worker Reed upon Reed’s arrival. This would however be potentially unsurprising in the alleged circumstances. Firstly, the complainant did not suggest that he objected to the sexual contact, rather he said that Mr Easling was being nice to him.249 Secondly, the complainant said he did not want to be removed from Mr Easling to Glandore by the social worker,
248 C2’s evidence pp 417 and 541
249 C2’s evidence p 416 at lines 1-4
because he hated Glandore.250 In those circumstances, if he had alleged sexual contact with Mr Easling he would have had no chance of either staying with Mr Easling, or of returning to him later. Thirdly, section 34i(6a) of the Evidence Act (1929) makes it very clear that a failure to make an immediate complaint does not mean that an allegation is false, and it also says that a complainant may well have valid reasons for failing to make a complaint or delaying the making of a complaint. More recently, although not applicable at the trial of Mr Easling,251 section 34M of the Evidence Act was amended to provide that in a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. These statutory provisions reflect much academic research to the effect that genuinely sexually abused children often make no immediate complaint.252
Accordingly the circumstances of the first alleged offence against this complainant did not necessarily suggest untruthfulness on the part of the complainant, as argued by Mr Easling’s lawyers.
The fifth matter put by Mr Easling’s lawyers that is said to adversely affect this complainant’s credibility is what is said to be a false report made by this person of an unrelated crime against him. This was said to demonstrate that this witness had a capacity to make false allegations.
This complainant was cross-examined about this matter between pages 528 and 536 of his evidence. In fact he should not have been required to answer any questions about those events at all, as it was an unresolved matter still before the courts, about which he may have been innocent, and about which he was also accordingly entitled not to answer any questions.
However, unfairly in an objective sense to this witness, he was required to answer detailed questions about the event.
Defence Counsel commenced asking questions about a matter this complainant reported to police,253 and then suggested that his report to the police wasn’t true.254
250 C2’s evidence p 538
251 R v Humble [2009] SASC 51, see footnote 1 therein
252 See Mathews, Ben - Judicial Considerations of Reasonable Conduct by Survivors of Child
Sexual Abuse, [2004] UNSWLawJ 36, and the articles cited therein. See in particular at para
3:
“…In many cases, particularly where the abuser is known, a child will make no complaint about the abuse, for one of several reasons: being sworn to secrecy; compulsion by threats; imposed conviction of the normalness of the acts; imposed or misplaced feelings of responsibility for the acts; fear of family dissolution; fear of punishment of the wrongdoer; misplaced shame and guilt; and self blame. Rather than disclosing the abuse, a child is likely to develop coping strategies.”
253 Cross examination of C2 from p 528
254 Cross examination of C2 p 529 line 36
The prosecutor then interrupted and correctly started to submit that the witness be cautioned that he not have to answer,255 however when part way through that submission the prosecutor appears to change his view on the basis that the matter had been dealt with. In fact he did so because Defence Counsel appears to have wrongly told him at that point that the matter had been dealt with, when it had not been dealt with at all.256 The transcript reveals that Defence Counsel told the Court without qualification that the complainant had pleaded guilty to the offence.257
Accordingly Defence Counsel then cross-examined for ten pages about the matter, attacking the witness’ credit and requiring him to answer potentially incriminating questions, on the basis of having inaccurately informed the prosecutor and the Court that the matter had already been fully dealt with by way of guilty plea in another court.
A little later, after the witness had been released,258 the prosecutor informed the Court that a troubling matter had arisen insofar as that while Defence Counsel had earlier informed him that the complainant’s matter had been resolved, he had now found out that in fact it had not.259
Defence Counsel then told the court that she had made a mistake and had assumed the matter had been dealt with “because of the age of it”.260
Defence Counsel had not said that she was making assumptions without knowing the truth of the affair, when she had inaccurately informed the prosecutor and the Court without such qualification at the outset. It is unclear from the transcript why she had specifically informed the Court that there had been a guilty plea,261 when she had no actual knowledge that the matter had resolved at all.262

house after that.614
607 C8’s evidence p 1172
608 C8’s evidence p 1173
609 C8’s evidence p 1174
610 C8’s evidence p 1175
611 C8’s evidence p 1176 the event was then described in more detail over the next two pages, pp 1177-1178
612 C8’s evidence p 1178
613 C8’s evidence p 1179
614 C8’s evidence p 1180
Seen by itself, there is nothing inherently incredible or implausible about this alleged account. It was suggested in the defence address to the jury that it would have been “just impossible” for this to have occurred, as how would Mr Easling know that the complainant would not loudly resist or go to the authorities afterwards.615
This is a fundamentally flawed submission, for the following reasons.
There would be any number of allegations of rape or indecent assault that would have similar elements to this alleged account. Numerous rapes and indecent assaults occur in circumstances where the victim knows and could hence obviously subsequently complain about the assault.616 These offences also often occur in circumstances where there are actual or potential witnesses.617 Research also indicates that while sexual crime is underreported, for a number of reasons sexual crime against male victims is even less likely to be reported,618 and accordingly a hypothetical offender might not have any belief that their offence against a young male would necessarily be reported. Accordingly there is nothing fundamentally implausible about these allegations on any of the bases suggested by the defence to the jury.
It is wholly within the bounds of plausibility that a hypothetical person who was motivated to abuse post-pubescent boys might take advantage of one who had been placed with him, and do so in this way. Research also indicates that the very factual scenario concerning this complainant is one in which the risk of abuse is heightened:
Risk of sexual abuse escalates if a boy is a runaway, has a learning disability, is subject to other forms of maltreatment in the home, comes from an impoverished and/or single-parent family and is in a hospital or institutional type setting.619
Seen in context, Mr Easling’s lawyers elsewhere suggested that the fact that the offending alleged against Mr Easling concerning this complainant had a different modus operandi from the other alleged offending, was the feature of this
615 Defence address to the jury p 2417
616 There is extensive research on this topic, see for example Domestic Violence, Sexual
Offences and Stalking Finding from the British Crime Survey - Walby, Sylvia and Allen, Jonathan (2004), Home Office Research Study 276 at page 74, indicated that in only 18% of cases of serious sexual assault was the perpetrator a stranger to the victim
617 Male victims of sexual abuse: An analysis of adolescent psychiatric inpatients. Hussey, D. L., Strom, L. I. S. W., & Singer, M. (1992). Child and Adolescent Social Work Journal, 9, 491-
503.Sexual abuse perpetrated by adult and juvenile females: An ultimate attempt to resolve a
conflict associated with maternal identity, Tardiff, M., Auclair, N., Jacob, M., & Carpentier, J. (2005). Child Abuse and Neglect, 29, 153-167
618 Male survivors of sexual assault and rape. Crome, Sarah. Melbourne, Vic: Australian
Centre for the Study of Sexual Assault, Australian Institute of Family Studies, 2006
619 Male survivors of sexual assault and rape. Crome, Sarah. Melbourne, Vic: Australian
Centre for the Study of Sexual Assault, Australian Institute of Family Studies, 2006
complainant’s account that made it implausible.620 This placement was only for a weekend and this complainant had insisted on going to sleep earlier in the evening, reducing the hypothetical opportunities for late night alcohol, games and massages or other grooming conduct alleged by other complainants. A hypothetical abuser might well take a different and opportunistic approach to a particular victim depending on the level of attraction or other motivation to offend that might be in that hypothetical offender’s mind in relation to the particular alleged victim concerned. Finally it could not be validly suggested that the different nature of these allegations would mean they were necessarily untrue, as such an argument would need to be based on an assumption the other version given by other complainants was true, and that was never the defence position.
During cross-examination this witness was asked by defence counsel whether he had an uncle on his mothers side who was a member of a Bikie Gang called the Finks. This was completely irrelevant and disallowed by the trial Judge, however it was heard by the jury.621
Accordingly this was the second matter put before the jury by way of the defence cross-examination of this complainant which had no evidential weight, but which was potentially very prejudicial to this complainant and should not have been raised. Neither this complainant’s mother’s out of court comments about him, nor the allegation of a bikie uncle should have been raised by the defence.
For all these reasons the argument put by Mr Easling’s lawyers that this complainant’s allegations were inherently implausible, is not sustainable.
Accordingly, this complainant’s evidence provides no basis upon which to conduct a further enquiry.
S UMMARY OF THE STRE NGTH OF THE PROSECUTI O N CAS E AND TH E DEFEN C E CAS E
Mr Easling’s lawyers submit that the evidence of all complainants had no credibility whatsoever,622 that the jury’s verdict is explicable only in terms of them being satisfied that there had been corrupt procurement of false allegations623 and that accordingly a royal commission is justified into how the matter was even permitted to go to trial.
To rationally consider this submission it is necessary to review whether the evidence in the case had sufficient strength to go to trial, and the meaning of the acquittal. The
620 Defence opening at p 403, suggesting that this complainant’s evidence was different as the SIU had not helped this complainant fabricate it
621 C8’s evidence p 1198
622 Mr Easling’s post-trial submission paras 50-81
623 Mr Easling’s post-trial submission paras 7 and 156
analysis in this advice is directed solely to that issue. It is not to suggest that Mr Easling may be guilty of any offence. Quite the contrary. I reiterate that Mr Easling remains at all times fully entitled to the presumption of innocence.
The prosecution case comprised the independent evidence of 8 separate complainants, most of who did not know each other and had ever met each other.
Eight of the approximately 60 placements with Mr Easling who were spoken to624
complained of abuse.
All complainants were post pubescent male youths who had been placed into care with Mr Easling at one time or another. All the alleged victims were of the same gender and in the same post-pubescent age group.
Mr Easling let complainants come and stay overnight even when there were no placements, rang them, sent them Christmas and birthday cards and so on. Whilst this in itself is not necessarily suggestive of abuse, most of the victims independently attested that it was allied with techniques of alleged ‘grooming’. On the prosecution case, Mr Easling would constantly take them on trips, to go-karting, to his shack, surfing and in the course of that would allow them alcohol, cigarettes, touch them regularly by way of hugs and tickles to establish physical contact, and then on a range of pretexts rub or massage them. This would allegedly in turn lead to touching them intimately. If the alleged intimate touching was strongly rejected he would allegedly cease, but otherwise he would allegedly continue and advance to oral or anal sex with the complainant concerned. With one complainant this allegedly resulted in a long term sexual relationship over several years.
On close analysis none of these complainants had an established motive to lie against Mr Easling, in fact some said that apart from the inappropriate sexual activity they quite liked him and would prefer not to have had to give evidence against him.
One complainant’s evidence was specifically corroborated by his social worker who, on arriving at Mr Easling’s house unexpectedly early, found the complainant in Mr Easling’s bed.625 This contradicted Mr Easling’s evidence626 as to the events of the morning.
Each of the complainants was a child in need of foster care and as such many were
‘street kids’, some runaways, some with a range of problems such as alcohol and drugs and some who had been in contact with the law. Whilst Mr Easling’s lawyers emphasise these matters as being adverse to the complainants’ credibility, this also placed these complainants in a potentially highly susceptible and vulnerable position.
624 Investigator Boydon’s evidence p1460
625 Social worker Reed’s evidence pp 561-562 and 576-579
626 See Mr Easling’s evidence pp 1862-1864 in particular at 1863 where he states he did not believe the social worker’s account
That very adverse background itself may have provided a motivation for a hypothetical abuser to take advantage, on the basis that the complainant concerned would not be taken seriously even if they complained.
Each complainant was cross-examined extensively, and any contradiction, inadequacy or inconsistency in their initial statements to police or investigators was highlighted. These type of inconsistencies are capable of a range of explanations. They may connote reticence to initially complain about embarrassing matters, initial difficulty in honest recall, a wish to play down embarrassing events, honest errors in recall as to detail, or inaccuracy or dishonesty about events themselves. Sometimes an otherwise honest witness under strident criticism can exaggerate in response to that criticism.
With witnesses such as these, each trying to recall embarrassing alleged matters from their youth years before, recall memories which many said they had actively tried to forget or suppress, in a context of troubled lives and drug and alcohol use, some considerable memory issues would be actively expected even with the most honest and reliable witness. As discussed in considerable detail, the matters raised were legitimate credit issues and as such classical jury questions, but none of the issues necessarily connoted dishonesty about the allegations of abuse.
The complainants were generally clear and consistent in the witness box about the central allegations of abuse, and   could usually provide an understandable explanation as to why they initially did not complain to police or why their initial comments were incomplete or in some respect inconsistent with their sworn evidence. These explanations, as discussed in detail above, were rational and consistent with the earlier-referenced literature concerning the reactions and behaviours of abuse victims and their reticence to complain.
The police and the prosecution were accordingly in possession of an ostensibly strong alleged case against Mr Easling.
Mr Easling gave lengthy evidence in response, denying the allegations. He was cross-examined very briefly by the prosecutor, and none of the allegations concerning any of the alleged offences were put, nor was Mr Easling’s versions of those events questioned.627 This was highly unusual, given the very extensive allegations from 8 complainants and the very significant factual dispute concerning those allegations.
Mr Easling gave evidence articulately and in considerable detail, denying any impropriety. Insofar as is apparent from the transcript he was a clear, confident and detailed witness.
627 The cross-examination of Mr Easling is at pp 1973-2001
Notwithstanding the absence of any cross-examination concerning the areas of primary factual dispute, a significant contradiction arose between Mr Easling’s evidence and that of one of his witnesses.
Mr Easling gave evidence that Ms Hannah Drydan had been a friend of his for 20 years, and that one of the complainants was subsequently placed with Mr Drydan. He gave evidence that she had been his girlfriend and that he had proposed marriage to her, although that proposal had not been accepted.628 This conveyed that he had a genuine relationship with a woman, was heterosexual, interested in marriage, and hence unlikely to have been interested in sexually abusing the 8 underage male complainants.
Ms Drydan was then called as part of the defence case and was asked in passing to confirm that Mr Easling had asked her to marry him, which she did. However, the trial Judge then asked further questions and Ms Drydan gave evidence that the proposal had been a complete shock, and she thought a joke, as they had never been in a relationship, and she had never even been a girlfriend of Mr Easling.629
Accordingly Mr Easling’s evidence that she had been in a relationship with him as his girlfriend, and the inference that he was heterosexual and pursuing a genuine marital relationship with Ms Drydan, was not supported by Ms Dryden.
Ms Drydan also gave evidence that their foster training made it clear that the carer’s bedrooms were off limits for the children, and that Mr Easling also told her that.630
However another witness for the defence, called to give evidence essentially that he had been placed with Mr Easling who had been good to him, gave evidence that contrary to that he could go into Mr Easling’s bedroom when Mr Easling was in bed, have pillow fights with him, wrestle him and pin him to the bed, and take his socks off and put them back on.
A further matter arose concerning Mr Easling’s evidence.
He gave evidence631 about an email sent to him by a friend632 of the very first complainant.633 That complaint came to light as the complainant’s friend reported what the complainant told her to a school counsellor. The complainant’s friend was concerned because of Mr Easling’s alleged abuse of this complainant. Accordingly she sent Mr Easling an email essentially inferring that he was a paedophile to let him know that someone knew and that he should stop it.634 Ultimately Mr Easling found out the identity of the sender and spoke to the complainant about the email.
628 Mr Easling’s evidence p 1928
629 Hannah Drydan’s evidence p 2056
630 Hannah Drydan’s evidence p 2064-2065
631 Mr Easling’s evidence pp 1962-1965
632 XXXXX
633 C1
634 XXXXX ’s evidence pp 1405-1406
This complainant had given evidence that Mr Easling had spoken to him and offered to hand himself into the police, and it was put to him by defence counsel that it was a lie to suggest that he had offered to hand himself in to the police.635 Mr Easling gave evidence that he never said anything like that he would turn himself in to the police.636 Mr Easling had however told police when interviewed that he had said to the complainant, “if he or his friends thought I was a sexual offender then those concerns should be brought to the attention of police immediately”. The trial Judge pointed out to counsel in the course of the defence address to the jury that this was inconsistent with what Mr Easling told the Court in evidence, and closer to what the complainant had said really happened.637 Hence it was potentially a previous inconsistent statement which might adversely affect Mr Easling’s credit.
Because the trial Judge raised it during the defence address, defence counsel was then able to address the jury extensively arguing that in fact it wasn’t an inconsistency or a problem,638 but the Crown had no opportunity to argue the contrary having addressed prior to the defence. This gave the defence an opportunity and advantage not accorded the prosecution.
Accordingly it is plain that in the course of the evidence and the trial there were matters relevant to the credibility of both the prosecution and the defence case, and these were all legitimate jury issues and incidents of the normal adversarial trial process which may have played a part in the jury’s consideration of the case. It was not the case, as inferred by Mr Easling’s post-trial submission, that there were only potential issues of credibility in relation to the prosecution case.
The jury’s verdict meant that they must have had a reasonable doubt as to at least one element of each charge. As a result Mr Easling was acquitted, and remains fully entitled to the presumption of innocence.
For the reasons discussed there was however a strong Crown case which it was therefore legitimate to prosecute.
An acquittal does not amount to any of the positive findings that Mr Easling’s post- trial submission argues about either the investigation, the strength of the case or the prosecution.
C ON DU C T OF TH E CR OW N CAS E
Given that the enquiry sought by Mr Easling’s lawyers also seeks an examination of the prosecution itself, it is appropriate to review the conduct of the prosecution case.
635 C1’s evidence p 1325
636 Mr Easling’s evidence p 1965
637 Transcript p 2242-2245 and 2271-2272
638 Defence address p 2274
The decision to prosecute
In light of the strength of the evidence discussed in detail above, in my view it was entirely appropriate and the DPP was entirely correct to commence and pursue a prosecution in this matter.
A failure to prosecute in the face of eight separate complainants on the basis of the matters raised concerning the credibility of these ‘street kids’ would set a very dangerous precedent. The matters raised concerning credibility were legitimate but standard issues with a potential to affect the credit of any witness, however were exactly the type of issue you might also expect to see with honest witnesses of the
‘street kid’ type that were genuine victims.
The credibility matters were for the most part legitimately relevant to credit, but did not necessarily mean that the allegations were not genuine. They were classically issues for a jury. I refer to but do not repeat the very detailed discussion of these issues in preceding pages.
To fail to prosecute because of these standard and expected ‘street kid’ credit issues would have been tantamount to a charter to abuse street kids in the future.
The decision to prosecute was correct.
Conduct of the pre-trial arguments and prosecution witnesses
The trial was commenced by two prosecutors, Mr Preston and Mr Norman. Neither were Senior Counsel or the more senior “Managing Prosecutors” employed at the DPP, but both are experienced prosecutors. The transcript reveals that they had the support of some other DPP staff in the running of the trial.
There were several pre-trial arguments, primarily the defence seeking separate trials for the various offences. These issues were competently argued by the prosecution and indeed the defence application for separate trials was unsuccessful.639
The Crown opening statement to the jury was a clear articulation of the charges, the issues and the evidence to be called.640
Each of the complainants were led through their evidence in chief appropriately, without leading questions, and if anything the prosecution gave the defence great latitude in not objecting to cross-examination of the complainants that occasionally
639 Trial Judge’s ruling at pp 323-324
640 Crown Opening at pp 347-390
bordered on matters relating to parental abuse and medical history that were potentially both irrelevant and upsetting.641
For example, one complainant was cross-examined about having been beaten as a child by his father years before the alleged abuse and about self-mutilation and attempted suicide, prompting the trial Judge to intervene on both occasions and raise the appropriateness of it, and notwithstanding the submissions put by the defence in support of such cross-examination the trial Judge commented;
“The foundation is out of proportion with the end result as far as I am concerned …It is just to bring out a lot of nasty material which is totally irrelevant in this trial …”642
“(to defence counsel) you know and I know you are making as much impermissible mileage out of this cross-examination as you can, and I am not going to allow it. You can put it in generic terms, you can put it in short terms. You are not going to go over every little incident that this man has gone through in his life.” … “I am conscious of section 23(b) of the Act. I think you come well within that section.”643
It is accordingly plain that the prosecution conducted the trial with great fairness towards the defence, allowing them significant latitude to pursue cross-examination of the complainants.
Crown approach to the defence case
There was one unusual feature of the way the prosecution case responded to the defence case.
As mentioned earlier, the prosecutor did not cross-examine Mr Easling at all about any of the allegations against him.
He cross-examined him about some peripheral issues only.
•What he did in respect to one complainant saying in 1997 he was a paedophile.644
•     What he did when he was sent a vague email about doing the wrong thing.645
641 C7’s evidence p 1070 and pp 1092-1093
642 Trial Judge’s comment during the cross-examination of C7 at p 1098
643 Trial Judge’s comment during the cross-examination of C7 at p 1103. Section 23(b) of the
Evidence Act provides:
23(b)   such questions are improper if the imputation which they convey relates to matters so remote in time, or of such a character, that the truth of the imputation would not affect, or would affect only in a slight degree, the opinion of the court as to the credibility of the witness on the matter to which he testifies;
644 Mr Easling’s evidence pp 1974-1976
645 Mr Easling’s evidence pp 1976-1984
•     A complainant contacting him saying two investigators had spoken to him and
(the complainant) wanted to complain.646
•     What might have been seen by Craig Reed when Craig Reed attended to see
C2.647
•     Why he declined to have C5 back.648
•     Whether he gave non-sexual shoulder hugs to each of the complainants.649
•     Whether there were rules about tickling?650
•     The events (non sexual) in C1’s diary at KI651
•     Why take photos?652
•     Whether he thought Hannah Drydan was a sexual assault investigator.653
•     Why he kept some emails not others.654
This is unusual as the very reason cross-examination exists is to enable the strength, reliability and truthfulness of disputed evidence to be tested, and the general principle is that a party should at least put its case to the other side when facts are disputed.
It obviously concerned the trial Judge, as when the cross-examination appeared to conclude without even adverting to the allegations against the defendant, the trial Judge raised the issue and specifically suggested that the prosecution should at least put its case to the defendant.655 Despite this intervention by the trial Judge, none of the allegations were subsequently put nor was it even suggested to Mr Easling that he had committed any offence.656
This may have potentially assisted the defence, as it meant that there was no opportunity to test any of the evidence given, compare it to Mr Easling’s earlier statements to the police, or even suggest that he had committed the allegations.
It may also have appeared to the jury that there was some kind of acceptance of
Mr Easling’s evidence at that stage, or inferred that the prosecution knew they
646 Mr Easling’s evidence pp 1984-1987
647 Mr Easling’s evidence pp 1987-1989
648 Mr Easling’s evidence pp 1989-1991
649 Mr Easling’s evidence pp 1991-1995
•       C2  “Not that I recall”
•       C3 or C5                 “I don’t recall”
•       C1  “I might have”
•       C3  “Don’t recall”
•       C4  “Certainly not”
•       C5  “May have”
•       C6  “Well, no”
•       C7  “No”
650 Mr Easling’s evidence p 1990,                “no”
651 Mr Easling’s evidence pp 1995-1997
652 Mr Easling’s evidence p 1997
653 Mr Easling’s evidence p 1999
654 Mr Easling’s evidence p 1999
655 Transcript p 1997
656 The subsequent cross-examination is at pp 1999-2001
couldn’t trip him up, or thought he was a good witness. All of these kinds of perceptions were possibly available in the absence of a robust and palpably sceptical cross-examination.
The suggestion that this potentially assisted the defence is supported by the response of defence counsel and the trial Judge to the issue being raised;
HisHonour:    There is some authority to suggest that the prosecution should at least put their case even though the defence has already heard it.
Ms Powell:     We won’t be taking the point.
His Honour:    I’m sure you won’t. I am wondering about that.657
It was however within the prosecution’s legitimate discretion to determine its approach to the cross-examination of Mr Easling.
In fairness to the prosecution, there are two features of the case that may provide a background for the prosecutor’s unusual approach.
The trial was a very complex one, involving multiple allegations from 8 complainants over several years, such that two lead prosecutors were obviously required to adequately prepare and run the trial. As at 29 October 2007, the case had been going since 10 September. 29 October 2007 was just a week before the defence was to commence its case and Mr Easling was to give his very detailed and extensive evidence.
Unfortunately for the prosecution, on the 29th of October the transcript indicates that one of the two prosecutors had the day before suffered a death in his family and was immediately withdrawing from the case to travel overseas.
Accordingly, at this crucial and late stage of the case the prosecution, through no fault of its own, had suffered a considerable adversarial disadvantage. All the tasks, which such tasks had plainly required two prosecutors to date, fell upon the single remaining prosecutor. Remaining prosecution witnesses had to be called, arguments and submissions as to a case to answer had to be prepared and made, a final address had to be prepared, cross-examination of whoever the defence called as part of their case had to be undertaken, and detailed submissions on a range of possible jury directions were required by the trial Judge. These were significant tasks for two prosecutors, let alone one.
The second feature is that Mr Easling had also given very detailed and very extensive evidence, and was clearly an intelligent, articulate and very well prepared witness.
657 Transcript p 1997
In such circumstances it was within the remaining prosecutor’s legitimate tactical discretion to not cross-examine on the detailed allegations, and to thereby avoid providing a further opportunity for denials by a very well prepared witness.
Crown address
The address by the prosecutor to the jury was a fair summary of the evidence and argued the prosecution case competently.
Conclusions re the conduct of the prosecution case
The case was correctly instituted, and fairly, ethically and moderately prosecuted throughout.
The prosecution suffered an unforeseeable and significant disadvantage by the withdrawal of one of the prosecutors at a crucial late stage of the trial. The prosecution was however conducted adequately.
There is no basis for the defence to complain concerning the conduct of the prosecution case, nor is there any basis for an inquiry into the conduct of the prosecution case.
A DVIC E
1.Neither the trial evidence nor the submissions from Mr Easling’s lawyers disclose any evidence that the investigation of the allegations against Mr Easling was conducted with bias or impropriety.
2.Neither the trial evidence nor the submissions from Mr Easling’s lawyers disclose any evidence that the evidence of any complainant was tainted by contamination or collusion. The trial Judge also closely considered this issue and rejected it, describing it as “merely conjecture”.
3.There was a legitimate case to answer against Mr Easling, comprising 8 independent complainants out of a total of 60 spoken to who were placed with Mr Easling, each independently alleging that they were abused. Also, both the committing Magistrate and the trial Judge independently found a case to answer.
4.These complainants, being placements, were primarily street kids some who had been in trouble, some who had had problems, some who had had contact with drugs. They alleged abuse at the hands of Mr Easling occurring some years prior to the trial in circumstances where most said they had been trying to forget the abuse. As such, there were some inconsistencies in some of their evidence as to some matters. These were legitimate issues as to the credibility of witnesses of this type. They were for the jury to consider, but none were such as to indicate that the complainants were necessarily untruthful in relation to the charged events or that they should not have formed the basis of a legitimate prosecution.
5.    It was appropriate to prosecute Mr Easling.
6.    The prosecution was conducted ethically, properly and appropriately.
7.The acquittal of Mr Easling means that the jury had a reasonable doubt as to his guilt. It does not necessarily connote any adverse conclusions as to the conduct of the investigation or the conduct of the prosecution.
8.The acquittal of Mr Easling means that he remains fully entitled to the presumption of innocence.
9.Neither the trial evidence or the submissions of Mr Easling’s lawyers provide any basis for any further inquiry into the objectivity or propriety of the investigation, the decision to prosecute or the conduct of the prosecution.