IZG2 v State of New South Wales; AXJ2 v State of New South Wales; KWM2 v State of New South Wales; BJS2 v State of New South Wales

1. [1]

   HIS HONOUR: I have previously given leave to the State of New South Wales to read the late served supplementary statement of KGM2 dated 19 February 2025. That decision did not foreclose Ms Lam’s right to object to the tender of that statement, or her earlier statement dated 10 June 2021, in whole or in part. Ms Lam objects to both of KGM2’s statements in their entirety. These reasons deal with that issue.

2. [2]

   In order to understand Ms Lam’s objections, it is necessary to trace, as her helpful written submissions have done, the evidence given by KGM2 in each statement.

The 2021 statement

1. [3]

   In her 2021 statement, KGM2 relevantly said this.

2. [4]

   KGM2 later met with Senior Constable McNaughton at Maroubra Police Station and made the 2021 statement.

The 2025 statement

1. [5]

   In her 2025 statement, KGM2 relevantly said this.

The evidence was improperly obtained: Ms Lam’s submissions

1. [6]

   Ms Lam contends in these circumstances that her evidence was improperly obtained. Her reasoning was as follows.

2. [7]

   The 2021 statement was obtained for the purposes of a criminal proceeding, so that it was subject to identification evidence provisions in Part 3.9 of the Evidence Act 1995.

3. [8]

   KGM2’s description, at [10] in the 2021 statement, of the teacher she said she saw in the languages staffroom constituted “visual identification evidence” as defined by s 114(1) of the Evidence Act. It was not “picture identification evidence” as defined by s 115(1) of the Evidence Act, because the identification was not made by examining “pictures kept for the use of police officers”. The identification was made in contrast by an examination of captioned photographs contained in the 1978 Maroubra Bay High School yearbook.

4. [9]

   Accepting that it would not have been reasonable for Senior Constable McNaughton to have held an identification parade, the evidence of KGM2’s identification of the teacher was not admissible unless she made the identification without having been intentionally influenced to identify Ms Lam: Evidence Act, s 114(2).

5. [10]

   In circumstances where KGM2 was deliberately shown the 1978 yearbook, which was the very year in which Ms Lam was alleged to have committed the offences for which she was charged, and tasked with choosing from a collection of photographs, one of which was captioned with the words “H. Lam”, it could hardly be described as anything other than an attempt by Senior Constable McNaughton to “intentionally influence” the identification that KGM2 ultimately made. The identification evidence in the 2021 statement was, on any reasonable view, inadmissible in those proceedings pursuant to s 114(2) of the Evidence Act.

6. [11]

   Senior Constable McNaughton, being the police officer in charge of the investigation into those alleged offences, must have been alive to that fundamental problem with the 2021 statement. It was incumbent on him to disclose to the defence the manner in which it was procured, yet he did not do so at any stage during the period from Ms Lam’s arrest in September 2021 until her discharge in February 2024. Senior Constable McNaughton’s adoption of that identification procedure, without due regard to the principles of fairness to Ms Lam, meant that that evidence was improperly obtained.

7. [12]

   The State is now relying on that improperly obtained evidence in support of its action for indemnity or contribution under s 5(1)(c) of the Law Reform (Miscellaneous Provisions) Act 1946. When regard is had to the probative value of the evidence, the nature of the State’s cause of action and the gravity of Senior Constable McNaughton’s deliberate non-disclosure, the Court would find the desirability of admitting the 2021 statement in these proceedings to be considerably outweighed by the undesirability of admitting evidence that was obtained in that way.

8. [13]

   The 2021 statement ought to be excluded pursuant to s 138(1)(a) of the Evidence Act.

9. [14]

   The 2025 statement, having been obtained in consequence of that foundational impropriety, ought also to be excluded under s 138(1)(b).

Probative value outweighed by the danger of unfair prejudice: Ms Lam’s submissions

1. [15]

   Even when taken at its highest, the Court would assess the probative value of KGM2’s evidence as moderate, at best in circumstances where:

2. [16]

   The Court would find the probative value of KGM2’s evidence in her statements to be significantly outweighed by the irremediable prejudice occasioned to Ms Lam by reason of:

3. [17]

   In all of the circumstances, Ms Lam submitted that I would exercise my discretion to exclude the evidence under s 135 of the Evidence Act.

Consideration

1. [18]

   I consider that the statements of KGM2 are admissible, subject to such objections as Ms Lam may successfully maintain in due course. This is for the following reasons.

2. [19]

   Section 114 of the Evidence Act is in the following relevant terms:

3. [20]

   I do not understand it to be controversial that this provision applies only to criminal proceedings. It cannot in my view assist Ms Lam in the present case.

4. [21]

   Section 138 of the Evidence Act is in these terms:

5. [22]

   Ms Lam contends that the way in which evidence was elicited from KGM2 by the police in the circumstances outlined above shows that it was obtained improperly, even if not illegally. That submission asserts that KGM2 should not have been shown a picture of Ms Lam in the Maroubra Bay High School 1978 yearbook with her name printed below and that the inherent suggestibility of that approach renders her nomination of Ms Lam as the teacher in the languages staffroom with a student seated on her lap wholly unreliable.

6. [23]

   None of these matters means that the evidence was obtained improperly or illegally in any relevant sense. Ms Lam does not suggest that being shown a picture of KGM2 with her name attached was contrary to any specified law or legal requirement. Nor is it suggested that it was obtained improperly, in the sense that KGM2 was coached or influenced somehow to make her identification that she would not or might not otherwise have made. It may be accepted that, on one view of the matter, the police procedures were irregular or highly ill-advised. That would not suffice to exclude the evidence in whole for that reason.

7. [24]

   Ms Lam also contends for similar reasons that there has been a total disregard for proper process and that the frailty of the evidence produced by that process means that I should exercise my discretion pursuant to s 135 of the Evidence Act to exclude it.

8. [25]

   Section 135 is in the following well-known terms:

9. [26]

   Ms Lam contends that s 135(a) applies here.

10. [27]

    The identity of the teacher that KGM2 says she saw with the male student and the timing of that incident are important issues in these proceedings on the question of both legal and factual causation. To that extent, therefore, the reception of the evidence has the potential to cause forensic prejudice to Ms Lam. The question is whether that prejudice is unfair, having regard to its probative value.

11. [28]

    Ms Lam maintains that the process that led to KGM2’s identification of her both significantly decreases its probative value of her identification evidence and increases the unfairness of the prejudice associated with its reception. The passage of years and the intervening deaths of Mr Addinall and Mr McGuinness only serve to exacerbate these concerns.

12. [29]

    The fact that more than four decades have passed since the alleged occurrence of the events that give rise to these proceedings is of little overall significance in my view. In one very real sense, the delay, and the associated degradation of recollections, is either neutral, in the sense that it applies equally to all parties, or alternatively actually favours Ms Lam in her attempts to reduce the value of the allegations she faces, to the extent that they are reliant on memories that are unsupported by documentary corroboration. Cross-examination of witnesses upon whom the State relies has understandably sought to exploit that weakness.

13. [30]

    Even though Senior Constable McNaughton is unavailable, KGM2 is available. Importantly, she is a witness with no interest in the outcome of the proceedings. There is no reason to anticipate that her evidence is other than her best recollection of the events she observed. Moreover, she has on one view, about which I accept there is a contest, identified Ms Lam as the teacher in question other than by name. That distinction goes to the weight of her evidence rather than its admissibility.

14. [31]

    In a similar vein, KGM2’s ability to recall with precision the timing of particular incidents in her obstetric history is highlighted as an indicator of prejudice associated with delay. However, I see no basis upon which to conclude that KGM2’s imperfect recall of when she suffered her miscarriages and the relationship between those events and her medical advice that she should refrain from walking up stairs when pregnant is prejudicial to Ms Lam and may on the contrary well be forensically beneficial or advantageous.

Conclusion

1. [32]

   Ms Lam’s application to exclude the statements of KGM2 is refused.