AW & Ors v State of New South Wales

These proceedings arise out of events in 1994 in which charges were laid against the plaintiffs alleging that they had committed sexual offences against a number of complainants. Those proceedings were prescribed sexual offence proceedings for the purposes of the Crimes Act 1900 . Section 578A(2) of the Crimes Act makes it an offence to publish any matter that identifies the complainant in prescribed sexual offence proceedings or any matter which is likely to lead to the identification of the complainant. This prohibition remains even though the prescribed sexual offence proceedings have been finally disposed of: subs (3). For this reason I will refer to the plaintiffs, the complainants and the officer in charge of the investigation (for reasons that will become apparent) in a way that does not identify them. Unless otherwise stated references to dates are to 1994. Introduction

The first plaintiff, AW, and the second plaintiff, LW, married in 1972. Shortly after their marriage they purchased the home in which LW had lived all her life (the family home). They had four children.

AW was employed by a State Government Corporation since commencing his apprenticeship (save for a period when he had been conscripted into the Australian Army). In 1994 LW was working at the canteen of the high school at which two of her children were enrolled. Her mother, JS, is the third plaintiff. In 1994 JS was a widow living in a caravan that was parked in the back yard of the family home. She was aged seventy-two years and was suffering from respiratory problems including emphysema and asthma.

In April 1994 the eldest of AW and LW’s children, SW, was aged eighteen years. She had moved out of home and was living with her boyfriend, Michael. The remaining three children were still at school and living at home. They were: a son, JW, aged fifteen, a daughter, EW, aged thirteen, and another daughter, JLW, aged eleven.

In November 1993 SW and Michael sought counselling from Douglas Keir, a counsellor employed at the Family Planning Association’s Chatswood office because they were experiencing difficulties in their sexual relationship: SW did not want to have sexual intercourse.

In the course of counselling SW told Douglas Keir that she had been raped by boyfriends who had been physically violent to her. She also said that she had been sexually molested by her father. In a counselling session on 17 January SW complained that her father had attempted to rape her a matter of days earlier. Mr Keir tried to persuade her to report the matter to the police but SW was unwilling to do so.

In a counselling session on 21 March SW told Mr Keir that her father had raped her at her home three nights earlier. By this time Mr Keir had come to the view that he was required to inform the Department of Community Services (DOCS) that SW’s younger siblings may be at risk of abuse. He told SW this. SW agreed to report her father’s abuse to the police.

On 30 March SW provided a statement to Detective Sergeant Cruickshank (the Cruickshank statement) detailing a history of sexual abuse by her father commencing when she was aged five years. In the course of making this statement SW said that she had not told her mother of the abuse because of her belief that her mother would try to kill herself if she found out what had been happening.

The further investigation of the complaints made by SW in the Cruickshank statement was assigned to Detective Sergeant MOD at the Dee Why Detectives’ office. He interviewed SW on 17 April. During this interview SW made claims suggestive that her mother had been complicit in her father’s sexual abuse of her.

In a further interview on 19 April SW told MOD that her mother had engaged in various indecent acts with her over a number of years. AW and LW were arrested and charged with the commission of sexual offences against SW on that day.

Following the arrest of LW DOCS took the younger children, JW, EW and JLW into care. Each of the children initially denied that their parents had sexually abused them. Over time each came to make allegations of sexual impropriety against one or both of their parents.

On 22 April an officer of DOCS filed an application pursuant to s 72 of the Children (Care and Protection) Act 1987 alleging that JW, EW and JLW were in need of care (the care proceedings).

Following the arrest of AW and LW, the two eldest girls, SW and EW, went to stay with their uncle, PS, and his wife, YS, on the Central Coast. PS was one of LW’s brothers. In time PS’ children, SS and KS, also came to allege that AW had sexually interfered with them.

MOD took a lengthy statement from SW in late April and early May. In this statement SW departed in significant respects from the account of the abuse that she had given to Detective Cruickshank. She now claimed her mother had been an active participant in the sexual abuse.

EW also made florid allegations of abuse against both of her parents, and claimed that her grandmother, JS, was a participant in the abuse.

On 23 June AW and LW were charged at court with a large number of offences of sexual assault. LW was charged with sexual assaults on SW, EW and on her son, JW. AW was charged with sexual assaults on SW and EW and on their cousins, SS and KS.

MOD took a further statement from SW on 13 and 14 September. In this statement she came to make allegations for the first time that her grandmother, JS, had been a party to the sexual assaults that had been committed on her and on her siblings.

On 15 September JS was arrested and charged with sexual offences including the carnal knowledge of her two granddaughters.

On 18 August the hearing of the care proceedings commenced before Mr Rooney, Children’s Court Magistrate. The proceedings were heard over 109 sitting days. The children did not give evidence. Their complaints, including the complaints made by SW, were in evidence before Mr Rooney.

On 20 November 1995 Mr Rooney delivered judgment. Among other things he found: “With respect to the allegations of sexual abuse of the four children by their parents and grandmother, I have been drawn slowly and inexorably over many hearing days to the firm conclusion that they are, on the evidence presented, essentially and substantially untrue. Admittedly, I have not heard oral evidence from the children, and I stress that I come to this conclusion subject to that qualification. There are many inconsistencies and improbabilities, too numerous to traverse in this finding, revealed on consideration of details recited by the children. Sometimes the evidence can only be described as fanciful, especially when hearing directly from the parents and grandmother and observing their demeanour, when giving evidence, and the overall consistency of their evidence. I find it quite impossible to accept the allegations as true. In any event the three children, subject to these proceedings, have in the case of one child partly withdrawn the allegations and the other two have completely withdrawn them with respect to the parental involvement.”

Mr Rooney’s findings included that there had been inappropriate sexual activity between the three younger children and that this was suggestive of a lack of adequate supervision. He was also of the opinion that the making of the allegations, which he regarded as substantially untrue, was some evidence of psychological damage. He found that the children were in each case in need of care within the meaning of the Children (Care and Protection) Act and he made consequential orders.

On 18 March 1996 the committal hearing of the charges brought against the three plaintiffs commenced before Mr Price, Magistrate. The prosecution was conducted by a Crown Prosecutor. On 13 May 1996 Mr Price found that there was a prima facie case against each of the plaintiffs (15/5/1996 at T 1/2). AW and LW gave evidence at the committal hearing. On 21 June 1996 his Honour discharged LW and JS in respect of all of the charges. AW was discharged in respect of all charges save for one, which alleged an offence against SS. The Director of Public Prosecutions (the Director) subsequently determined to take no further proceedings against AW with respect to this charge.

JW, EW and JLW have all retracted the allegations that they made against their parents and grandmother.

At August 2003, when the hearing of the proceedings against the defendants commenced, JLW was living in the family home. JW was living and working in Western Australia but maintained contact with his parents and grandmother, returning to visit them at Christmas and on other occasions. EW had re-established contact with her parents and grandmother relatively shortly prior to the hearing.

SW had not resumed contact with her parents or grandmother. At the time of the hearing SW was living in a de facto relationship with MOD, who had been the officer in charge of the investigation into the complaints made by her. THE PLAINTIFFS’ CLAIMS

The plaintiffs sue the State of New South Wales pursuant to the Crown Proceedings Act 1988 as vicariously liable for the acts and omissions of a number of police officers (the police officers). The State’s vicarious liability arises under the Law Reform (Vicarious Liability) Act 1983 . Section 6 of that Act deems a police officer to be a person in the service of the Crown.

Each plaintiff pleads causes of action in false imprisonment, malicious prosecution and abuse of process, and claims damages including aggravated and exemplary damages.

The hearing of the plaintiffs’ claim commenced on 18 August 2003. It was adjourned from time to time. The hearing occupied sixty-one days and was concluded on 9 July 2004. The first plaintiff, AW, was represented by Mr Bartley SC and Ms Whalen. Mr Bartley SC, Mr Campbell SC and Ms Whalen appeared on behalf of the second plaintiff, LW. Mr Campbell SC and Ms Whalen appeared on behalf of the third plaintiff, JS. Mr Donovan QC and Mr Hodgson appeared on behalf of the defendant.

The plaintiffs’ original statement of claim was struck out by order of O’Keefe J. His Honour gave leave to replead causes of action in malicious prosecution and abuse of process. The plaintiffs were given leave to proceed on separate statements of claim. The pleadings were amended by leave during the course of the hearing. The first and second plaintiffs proceed upon their third further amended statement of claim.

The third plaintiff was born in July 1922. At the conclusion of the hearing she was aged eighty-two years and was in frail health. After judgment was reserved I was informed by her solicitors (with the consent of the defendant) that she had died on 29 July 2004.

By letter dated 16 March 2005 her solicitor, Mr Walsh, sought leave to file a fourth further amended statement of claim. Implicit in the leave that was sought was the substitution of LW as the trustee for the estate of the late JS as the third plaintiff. A copy of a letter dated 8 March 2005, signed by the solicitor with carriage of the matter on behalf of the defendant, was attached to Mr Walsh’s letter and conveyed the defendant’s consent to the filing of the fourth amended statement of claim.

The pleading enclosed with the letter of 16 March 2005 departed in material respects from the third plaintiff’s third further amended statement of claim and from the way her claim had been advanced at the hearing. The proceedings were listed at my direction on 30 June 2005 in order to clarify the position. Mr Walsh informed me that the pleading attached to his letter contained a number of errors. The defendant consented to the filing in court of a fourth further amended statement of claim. I made an order substituting LW as trustee for the estate of the late JS as the third plaintiff in the proceedings. The defendant consented to this course. THE ELEMENTS OF THE CAUSES OF ACTION

Abuse of process, false imprisonment and malicious prosecution are each intentional torts. False imprisonment

The action for false imprisonment requires proof of the intentional restraint of the person’s movement without lawful authority. This may be achieved by actively confining the person or by preventing the person from leaving the place in which he or she is: Fleming The Law of Torts (Sydney: LBC Information Services, 1998, 9th ed), at 33. It is not necessary that the person be the subject of actual force. Submission to the control of another who asserts lawful authority is sufficient provided the restraint is against the person’s will. Abuse of process

Each of the plaintiffs pleads a cause of action in the tort of abuse of process, relying upon the material facts pleaded in support of the claim for malicious prosecution and contending, in the alternative, that the criminal process was utilised by the police officers so as to effect an object not properly within the scope of the process. The particulars of the improper object are in each case pleaded as: (a) Utilising the criminal process in an effort to justify the unlawful arrest of the plaintiff; (b) Utilising the criminal process in an effort to conceal the earlier negligent and/or improper investigation resulting in charges that should not have been brought and/or maintained against any of the plaintiffs; and (c) By MOD, utilising the criminal process to secretly conceal and foster his illicit relationship with the principal complainant, SW, thereby contaminating the evidence of SW during the care and criminal proceedings, thus eroding the integrity of the criminal process during the above proceedings to the detriment of the plaintiffs.

In Fleming at 687, describing the tort of abuse of process, the learned author observes: “Unlike malicious prosecution, the gist of this tort lies not in the wrongful procurement of legal process or the wrongful launching of criminal proceedings, but in the misuse of process, no matter how properly obtained, predominantly for any purpose other than that which it was designed to serve. Although usually committed by plaintiffs, the tort may equally consist in an abusive defence. It involves the notion that the proceedings were “merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the court is asked to adjudicate.” It is therefore immaterial whether the suit thus commenced was founded on reasonable cause or even terminated in favour of the instigator: the improper purpose is the gravamen of liability” (footnotes omitted).

In Hanrahan v Ainsworth (1990) 22 NSWLR 73 Kirby P observed of the tort of abuse of process that (at 96): “The tort involves using court process for an ulterior purpose, that is, for a purpose not within the scope of such process”.

In the same case Mahoney JA also considered that the tort would be made out by proof that the proceedings had been brought for an improper purpose. Clarke JA considered that the tort of abuse of process would be established where it is proved that process ancillary to a principal claim for relief had been used to effect an object not within the scope of the process and thereby damage had been occasioned. His Honour stated that the action would not lie where the claim is that a party instituted proceedings, whether principal or ancillary, in order to effect an object within the scope of the proceedings. Malicious prosecution

The tort of malicious prosecution requires the plaintiff to prove the following elements (see Commonwealth Life Assurance Society Limited v Brain (1935) 53 CLR 343): (i) The defendant (in this case one of the police officers) instituted and/or maintained criminal proceedings against the plaintiff; (ii) The criminal proceedings were terminated in favour of the plaintiffs; (iii) The absence of reasonable and probable cause in instituting and/or maintaining the criminal proceedings against the plaintiffs; (iv) Actual malice; and (v) Damage.

The State of New South Wales is the only defendant. No claim is brought by any of the plaintiffs against the Director of Public Prosecutions (the Director). (i) Who is the prosecutor?

MOD was the informant in respect of all charges laid against AW and LW.

AW and LW were first charged with sexual offences on 19 April 1994. On 23 June 1994 a number of fresh charges were laid against AW and LW in court. Jill Cash, who was then a solicitor working in the Office of the Director of Public Prosecutions (the ODPP), appeared on behalf of the prosecution on this occasion. There is an issue concerning whether the Director had taken over the prosecution of the proceedings against AW and LW as at 23 June 1994 (or on an earlier date) such that MOD was no longer a prosecutor for the purposes of the tort.

The defendant submitted that the inference to be drawn from the record of the appearance of Ms Cash on the charge sheets for 23 June is that the Director had taken over the conduct of the prosecution against AW and LW by that date and that MOD was not a prosecutor of any of the charges against them.

A further charge was laid against LW on 30 January 1995. The charge sheet records that this charge was listed before the St James Local Court on that day. The charge sheet does not record the appearances. Further charges were laid against AW and LW during the committal hearing, which commenced on 18 March 1996, in substitution for charges that had been preferred at an earlier time. Ms Helen Morgan (as she then was), Crown Prosecutor, appeared on behalf of the prosecution at the committal hearing.

JS was arrested by Detective Sergeant Holloway. He was named on the charge sheets as the informant in respect of the offences with which she was charged on 15 September 1994. It was the plaintiffs’ case that Detective Holloway acted at the direction of MOD in arresting JS and charging her with a number of offences, and that MOD was the prosecutor of the charges preferred against her on 15 September.

In the defendant’s submission the charges preferred against JS following her arrest on 15 September were laid at the direction of the Director who had assumed the conduct of the prosecution of the related offences against AW and LW. To the extent that liability as a prosecutor attached to any police officer for the institution of the prosecution of JS, it was submitted to attach to Detective Holloway. When fresh charges were laid against JS at court on 18 March 1996 (in substitution for earlier charges) the prosecutor was submitted to be the Director. MOD was nominated as the informant on the charge sheets handed up in Court on 18 March, but in the defendant’s submission he did not have responsibility for the conduct of the prosecution.

For the purposes of the tort of malicious prosecution the law looks to the substance and not legal form to determine who is the prosecutor; Davis v Gell (1924) 35 CLR 275 per Isaacs ACJ at 282-283. The defendant acknowledged that a police officer might remain a prosecutor for the purposes of liability for the tort notwithstanding that the conduct of the prosecution has been taken over by the Director. Thus, in a case in which a police officer deliberately withholds from the Director information bearing on innocence, he or she may be liable for the maintenance of the prosecution.

The plaintiffs asserted that certain material in MOD’s possession had been withheld from them and, it may be, from the Director. In opening the plaintiffs’ case reliance was placed on the failure to serve the first statement made by Mr Keir with the brief of evidence. Certain material bearing on the assessment of SW’s credibility was also said to have been deliberately concealed.

In the plaintiffs’ submission it was sufficient to prove that MOD had instigated the prosecution of the charges against them. No notice under s 10 of the Director of Public Prosecutions Act 1986 ( DPP Act ) was proved in evidence and the defendant did not call evidence to establish that the Director had taken over the prosecution of any of the charges against the plaintiffs. The inference to be drawn in their submission was that MOD remained the prosecutor and was responsible for the maintenance of it until the proceedings were terminated.

Sections 9 and 10 of the DPP Act provide as follows: 9 Taking over prosecutions or proceedings (1) If a prosecution or proceeding in respect of an offence (whether it is an indictable offence or a summary offence) has been instituted by a person other than the Director, the Director may take over the matter and: (a) carry on the prosecution or proceeding, (b) carry on, on behalf of the prosecution or as respondent, an appeal in any court in respect of the offence, (c) institute and conduct, on behalf of the prosecution, an appeal in any court in respect of the offence, and (d) conduct, as respondent, an appeal in any court in respect of the offence. (2) The Director may not take over a matter under this section involving a summary offence, unless: (a) the offence is a prescribed summary offence, or (b) a person otherwise responsible for the matter has consented in writing. (3) Except as provided by subsection (2), the Director may take over a matter under this section whether or not the person otherwise responsible for the matter consents. (4) If the Director takes over a matter under this section: (a) the Director shall, as from the time when the Director complies with section 10(1) in relation to the matter, be deemed to be the prosecutor in connection with the prosecution or proceeding concerned, and (b) the Director may decline to proceed further in the prosecution or to carry the proceeding further. 10 Director to inform court etc when taking over proceedings (1) If the Director decides to take over a matter in accordance with section 9, the Director shall, as soon as practicable: (a) by notice in writing, inform the person otherwise responsible for the matter, and (b) if the matter is pending before a court: (i) by notice in writing, inform the registrar or other proper officer of the court in which the prosecution or proceeding concerned is to be heard, or (ii) if the prosecution or proceeding is being heard by a Judge or Magistrate—in such manner as the Director thinks fit, inform the Judge or Magistrate, that the Director has taken over the matter. (2) Failure by the Director to notify or inform does not affect any of the Director’s functions in relation to the matter.

It was contended that in the absence of any evidence that the Director had determined to take the prosecutions over, and in the absence of a s 10(1) notice, all that might be concluded was that a solicitor from the ODPP appeared and that a Crown Prosecutor was subsequently briefed to appear. It was submitted that there was no evidence that Ms Cash or the Crown Prosecutor were acting on instructions other than those of the informant. I have concluded that this is not the inference to be drawn.

The provisions of s 9(4) operate so as to fix the time at which a prosecution instituted by a private informant is taken over by the Director, by deeming it to have occurred from the moment the Director complies with s 10(1). In some cases the Director may take over a prosecution instituted by a private informant and, after serving notice in conformity with s 10(1), decline to proceed further with the prosecution. This may take place prior to the prosecution coming before the Court. That the decision to take over a prosecution may be made before the prosecution is pending before the Court is made clear by s 10(1)(b).

The failure to comply with s 10(1) does not carry with it that the Director has not taken over the prosecution of a matter. Section 10(2) provides to the contrary. The Director’s functions are not affected by the Director’s failure to notify or inform in relation to the matter: Price v Ferris (1994) 34 NSWLR 704 per Kirby P (with whom Meagher JA agreed) at 708.F and Priestley JA at 712.G – 713.A.

The functions of the Director are set out in Pt 3 of the DPP Act . The principal functions are those stated in s 7, which relate to the institution and conduct on behalf of the Crown of prosecutions for indictable offences in the Supreme Court and the District Court. Additional functions are conferred on the Director under s 8. These include the institution and conduct of committal proceedings for indictable offences.

Each of the charges brought against AW, LW and JS alleged the commission of an indictable offence. The prosecutions were pending in the Local Court and the Director’s functions included the power to conduct them pursuant to s 8.

The functions of the Solicitor for Public Prosecutions are set out in s 23 of the DPP Act . They are to act as solicitor for the Director in the exercise of the Director’s functions and to instruct the Crown Prosecutors and other counsel on behalf of the Director.

Section 20(2) confers on the Director power to advise and assist any Crown Prosecutor, any member of the Police Force or, if so directed by the Attorney General, any other person in respect of the conduct of criminal proceedings.

The scheme of the DPP Act does not seem to me to admit of a solicitor employed in the ODPP appearing on behalf of a private informant in committal proceedings. The Solicitor’s functions are as I have stated. In my opinion the power conferred on the Director by s 20(2) to advise and assist a member of the Police Force does not extend to the provision of representation in Court on behalf of a private informant in a prosecution that has not been instituted or taken over by the Director.

I consider that the inference to be drawn from the fact that Ms Cash appeared on behalf of the prosecution against AW and LW at the Manly Local Court on 23 June 1994 is that the Director had taken over the prosecution of the charges against each of them under s 9 of the DPP Act .

The case was conducted upon an acceptance that at material times Ms Morgan held an appointment as a Crown Prosecutor.

The functions of Crown Prosecutors are set out in s 5 of the Crown Prosecutors Act 1986 . Relevantly the functions include the conduct of and appearance as counsel in proceedings on behalf of the Director. A Crown Prosecutor may not engage in the practice of law outside the duties of her office without the consent of the Attorney General or of the Director: s 10(1)(a). I consider that Ms Morgan appeared as counsel on behalf of the Director in the prosecution of the committal proceedings against each of the plaintiffs.

Each of the plaintiffs plead as a particular of malice that the police officers, or anyone acting on their behalf, omitted to terminate the prosecution of each of them in circumstances where, upon a proper consideration of the evidence in the care proceedings and the findings of Magistrate Rooney on 20 November 1995, the prosecutions were doomed to fail (particular (kk)). I understand the reference to persons acting on behalf of the police officers as the assertion that a solicitor in the employ of the ODPP or, for that matter, a Crown Prosecutor, might be seen to be acting on the instructions of the private informant and not on behalf of the Director. This seems to me to involve a misconception concerning the Office of the Director.

In Price v Ferris Kirby J observed at 707.F: “What is the object of having a Director of Public Prosecutions? Obviously, it is to ensure a high degree of independence in the vital task of making prosecution decisions and exercising prosecution discretions. Its purpose is illustrated in the present case. The Court was informed that, in the prosecution of a police officer, it is now normal practice in this State for the prosecution to be ‘taken over’ from a private prosecutor or informant and conducted by the DPP. The purpose of so acting is to ensure that there is manifest independence in the conduct of the prosecution. It is to avoid the suspicion that important prosecutorial discretions will be exercised otherwise than on neutral grounds. It is to avoid the suspicion, and to answer the occasional allegation, that the prosecution may not be conducted with appropriate vigour.”

The plaintiffs’ claim that MOD and the other police officers failed to continually review the evidence and to terminate the prosecution at the earliest date when it became apparent that it was insufficient to prove any offence beyond a reasonable doubt. Specifically, they particularise the failure to terminate the prosecution after Magistrate Rooney delivered his reasons. It seems to me that these particulars of their claims must fail to the extent that they relate to the time after the Director took over the conduct of the prosecution in each case.

From the time the Director took over the prosecution of the plaintiffs MOD did not have standing to take any step in the proceedings including to discontinue them: Price v Ferris per Kirby P at 708 - 709.

There is a factual issue as to when the Director took over the prosecution of the charges against the plaintiffs. In the defendant’s submission I would find that the Director had taken over the prosecution of AW and LW well before 23 June 1994. There was evidence of the involvement of solicitors from the ODPP in discussions with MOD and Detective Yeomans from early May. Detective Yeomans was attached to the Dee Why Detectives’ Office and assisted MOD throughout the investigation.

It is clear that the police consulted with staff attached to the ODPP on several occasions prior to 23 June 1994. On 14 June MOD recorded an attendance at the ODPP and that he had spoken with Jill Cash and had provided her with “copies of statements for SW, EW (some), JW, JLW and witnesses”. He attended the ODPP and spoke again with Jill Cash on 16 June. On that day he spent time working on a summary of the charges in the W matter. He attended a conference with Jill Cash on 20 June and again the following day when he gave her copies of more statements taken in connection with the matter.

Detective Yeomans recorded in his duty book that on 15 June he liaised with MOD and “attended to charges for 23.6.94”. After commencing this task he travelled to Chatswood, where the Child Mistreatment Unit (CMU) was located, and collected the Protection Services Indictment Book. The Protection Services Indictment Book set out the terms of charges for sexual offences, both historical and current. Detective Yeomans noted in his duty book that he returned to the Dee Why office and attended to the charges relating to SW for 23 June 1994.

Detective Yeomans conferred with Jill Cash concerning the “proposed charges” on 22 June 1994. He said that copies of statements had been given to Jill Cash but he was not able to recall when, save to state that, “all statements were eventually provided to the DPP” (T 119.37).

On 22 June MOD and Detective Yeomans both devoted a considerable number of hours to attending to the charges to be preferred against AW and LW.

It was the defence case that Detective Yeomans took the form of the charges from wording given to him from Ms Cash. This was said to support the inference that the charges were preferred at the instigation of the Director, who should be found to have taken over the prosecution prior to the further charges being laid on 23 June. I do not accept that to be the case. Detective Yeomans was uncertain as to the contact that he had had with Ms Cash prior to that date. He had a recall of receiving what he described as “indictments” from her, but he was unable to say when that had occurred. Given the entries in his duty book in the days prior to 23 June disclosing significant amounts of time devoted to the preparation of the charges and, in particular, to the circumstance that he obtained a copy of the indictments book to assist him, I am not satisfied that he merely took the form of the charges from Ms Cash.

A further consideration that tells against the defendant’s submission that I would infer that the prosecution was taken over by the Director prior to 23 June relates to the form of the charges. The first three charges laid in court against LW on 23 June (OLC nos. 5159/3/4/5) each charged her with carnal knowledge of her daughter SW, a girl under ten years. This was an offence provided by s 67 of the Crimes Act (as it then stood). It required proof of penile penetration of the vagina. The definition of “sexual intercourse” that was introduced into the Crimes Act by the Crimes (Sexual Assault) Amendment Act 1981 admitted of a woman having sexual intercourse with a woman or girl. This explains why the charges of carnal knowledge against LW were subsequently withdrawn and replaced by charges under s 61D(1) of sexual intercourse without consent. I think it unlikely that Ms Cash would have framed a charge against LW alleging that she had carnal knowledge of her daughter.

Detective Yeomans was present at the Manly Local Court on 23 June. The charge sheets record the appearance of Ms Cash on behalf of the prosecution.

The likelihood is that MOD, who was familiar with the statements, framed the charges that were preferred against AW and LW on 23 June, and that he was assisted by Detective Yeomans in this task. The evidence does not establish when the Director made a determination to take over the conduct of the prosecutions but I am satisfied that he did so not later than 23 June when Jill Cash appeared on behalf of the prosecution.

From the date Ms Cash appeared on behalf of the prosecution on 23 June I consider that the Director had taken over the prosecution of the charges against both AW and LW. From the day Ms Cash appeared on behalf of the prosecution when the charges preferred against JS were before the Local Court I consider that the Director had taken over the prosecution of the those charges. From the time the Director took over the conduct of the prosecution of the charges against each of the plaintiffs it fell to him to determine whether to proceed further with the prosecution of each charge.

It remains to consider whether MOD (or any of the police officers) was a prosecutor for the purposes of liability for the tort of malicious prosecution by reason of concealing material from the Director relevant to the investigation or, perhaps, by deliberately refraining from making inquiries that might tend to establish innocence. (ii) Proceedings terminated in favour of the plaintiffs

It is accepted by the defendant that this element of the tort of malicious prosecution has been established. Each of the charges preferred against each plaintiff were terminated in the plaintiffs’ favour either by being withdrawn prior to or at the commencement of the committal or by the plaintiff being discharged at committal in respect of the charge, save for one charge involving SS which terminated in AW’s favour when the Director decided to take no further proceedings in respect of it. (iii) Absence of reasonable and probable cause

The plaintiffs are required to prove that there was an absence of reasonable and probable cause in instituting the prosecution of the charges against them. It is necessary for the plaintiff in each case to prove that the officer who instigated the prosecution did not have a belief in his or her probable guilt such that upon general grounds of justice the charge against him or her was warranted or, if he did have that belief, that on the materials of which he was aware a person of ordinary prudence and judgment would not have so concluded: Brain per Dixon J at 382 citing his earlier judgment in Sharp v Biggs (1932) 48 CLR 81 at 106.

Senior counsel for AW submitted that the prosecutor’s belief was required to be one based upon a “full conviction” of guilt. He relied on the judgment of Hawkins J in Hicks v Faulkner (1878) 8 QBD 167 at 171: “That brings me to the consideration of what is reasonable and probable cause. Now I should define reasonable and probable cause to be, an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would reasonably lead any ordinarily prudent and cautious man, placed in the position of the accuser, to the conclusion that the person charged was probably guilty of the crime imputed. There must be: first, an honest belief of the accuser in the guilt of the accused; secondly, such belief must be based on an honest conviction of the existence of the circumstances which led the accuser to that conclusion; thirdly, such secondly-mentioned belief must be based upon reasonable grounds; by this I mean such grounds as would lead any fairly cautious man in the defendant’s situation so to believe; fourthly, the circumstances so believed and relied on by the accuser must be such as amount to reasonable ground for belief in the guilt of the accused.” It is to be noted that Hawkins J went on to observe at 173: “The question of reasonable and probable cause depends in all cases, not upon the actual existence, but upon the reasonable bona fide belief in the existence of such a state of things as would amount to a justification of the course pursued in making the accusation complained of.”

In written submissions the defendant noted the distinction between an honest belief in the guilt of the accused ( Hicks v Faulkner ) and a genuine belief that the proceedings were justified ( Sharp v Biggs per Dixon J at 106). In the defendant’s submission it is sufficient that the prosecutor believe the probability of guilt to be such that upon general grounds of justice a charge is warranted: Sharp v Biggs and Brain (WS 7 at [9]). In this respect reliance was placed on the discussion of this element of the tort in Fleming, at 681: “In any event, unshakable certainty in the guilt of the accused is not demanded, since a fair minded person may well feel justified in bringing a suspect to justice without, in his own mind, prejudging the issue. It is sufficient, if he believes that the probability of guilt is such that upon general grounds of justice a charge is warranted. In other words, he may have probable cause for initiating a prosecution, although lacking a conviction of guilt beyond reasonable doubt such as a jury must entertain to justify a verdict of guilty” (footnotes omitted).

I approach the matter upon the basis that the subjective element of reasonable and probable cause requires that the prosecutor believe in the probability of the accused’s guilt such that upon general grounds of justice the charge against him or her is warranted: Brain per Dixon at 382 and Sharp v Biggs per Dixon J at 106.

In the way each of the plaintiffs put their case, the prosecutor for relevant purposes was MOD.

It is necessary that the prosecutor have reasonable and probable cause with respect to each of the charges brought against each plaintiff: Leibo v Buckman [1952] 2 All ER 1057; Dent v Standard Life Assurance (1904) 4 SR (NSW) 560; Birchmeier v Rockdale (1934) 51 WN (NSW) 201.

The reasonableness of the prosecutor’s belief must be based on the facts known at the commencement of the proceedings and not upon facts that may subsequently have come to his attention: Musgrove v Newell (1837) 1 M&W 582, 150 ER 567; Tempest v Snowden (1952) 1 KB 130 per Denning LJ at 139.

In the event that additional evidence comes to light after the proceedings have been instituted tending to show that the prosecution is baseless, the maintenance of the proceedings will show lack of reasonable and probable cause: Tims v John Lewis & Co Ltd (1951) 2 KB 459 at 472-474.

In considering the material known to the prosecutor at the time the proceedings were instigated and/or maintained it is open to have regard to evidence that may not be admissible upon the hearing: Lister v Perryman (1870) LR 4 HL 521.

The prosecutor is not required to test every item of evidence before instituting proceedings. He is not required to ascertain whether there exists a defence to the charges laid, but rather whether there is reasonable and probable cause for instituting the proceedings: Herniman v Smith (1938) AC 305 at 319. While the focus of the inquiry is on the material available to the prosecutor at the time the proceedings were instigated, it is not necessary that the prosecutor consider possible defences, it is necessary that the prosecutor make sufficient enquiry so as to inform himself of the true state of the case: Abrath v North-Eastern Railway Co (1883) 11 KBD 440 per Brett MR at 451 and Glinski v McIver [1962] AC 726 per Lord Devlin at 768.

Proof of the element of absence of reasonable and probable cause requires the plaintiff to establish a negative. In Fleming it is put this way at 683: “Thus in order to establish the prosecutor’s disbelief in his guilt, the plaintiff must give evidence from which an inference may be drawn as to what the defendant’s belief actually was. It is not enough merely to adduce reasons for non-belief, without showing that they were in fact operative. The requisite evidence may be supplied, for example, by proving that the defendant had before him facts pointing so overwhelmingly to the plaintiff’s innocence that no reasonable person could have believed in his guilt, but it is not sufficient merely that he had information, some of which pointed to guilt and some to innocence” (footnotes omitted). (iv) Malice

The final element that the plaintiffs must prove is that the prosecutor was actuated by malice. In Rapley v Rapley (1930) 30 SR (NSW) 94 per Street CJ at 98 it was said: “It is well settled that in actions of this kind what is meant by malice is malice in fact, and that is a matter to be determined by the jury on a consideration of all the circumstances in the case. If it appears to them that there was an absence of reasonable grounds for the proceedings, they may take this into consideration as evidence of a sinister or wrong motive, but want of reasonable or probable cause will not of itself necessarily support a finding of malice. In Hicks v . Faulkner (8 Q.B.D. 167), Hawkins, J ., said (at pp. 174, 175): “In an action of this description the question of malice is an independent one - of fact purely – and altogether for the consideration of the jury, and not at all for the Judge. The malice necessary to be established is not even malice in law such as may be assumed from the intentional doing of a wrongful act (see Bromage v. Prosser (4 B. & C. 255), per Bayley, J .), but malice in fact – malus animus – indicating that the party was actuated either by spite or ill-will towards an individual, or by indirect or improper motives, though these may be wholly unconnected with any uncharitable feeling towards anybody. In order to arrive at a conclusion on the question, the jury are to take into consideration all the circumstances of the case, and to form their own opinion upon them uninfluenced by any opinion of the Judge, unless that opinion accords with their own view. If among the circumstances it appears to the jury that there was no reasonable ground for the prosecution, they may – though by no means bound to do so – well think that it must have been dictated by some sinister motive on the part of the person who instituted it.”

In Commercial Union Assurance Company of New Zealand Ltd v Lamont (1999) Aust Torts Rep 80-236 at 68,509 Richardson J observed: “Malice in this context means no more than an improper and wrongful motive. It “covers not only spite and ill will but also any motive other than a desire to bring a criminal to justice”: Glinski v. McIver (1962) A.C. 726 at p. 766.”

Malice may be established by proving the wrong motive or by proving that the circumstances were such that prosecution may only be accounted for by imputing a wrong or indirect motive to the prosecutor: Brown v Hawkes (1981) 2 QB 718; Trobridge v Hardy (1955) 94 CLR 147 per Kitto J at 163. In Trobridge Kitto J observed at 163: “Evidence which points to a particular motive which is a wrong motive goes directly to the issue of malice. It is true that such evidence may only establish immediately certain primary facts from which the step of drawing an inference has to be taken before the conclusion can be reached that the particular form of malice existed; but the route to that conclusion is a direct one, none the less. It is in this very respect that it contrasts with the second method referred to by Cave J. That is a method which follows the route – I see no difficulty in calling it the indirect route – of proving that the defendant’s conduct is not to be explained by the existence of a right motive.” Onus and standard of proof

The onus of proof of each of the elements of the causes of action in false imprisonment, abuse of process and malicious prosecution is upon the plaintiffs. The standard of proof is upon the balance of probabilities. It is appropriate to have regard to the seriousness of the allegations to be proved, particularly with respect to the causes of action pleaded in malicious prosecution and abuse of process. In applying the standard of proof I have regard to the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362-363: “The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences. … This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained.” The evidence of MOD

Before turning to the history of the investigation and to the evidence generally it is convenient to say something about the approach that I have taken to the evidence that was given by MOD.

MOD was called in the defendant’s case. His evidence commenced on 3 December 2003. His evidence in chief was taken over five days. Cross-examination commenced after the luncheon adjournment on 10 December. It continued for the balance of that day and throughout 11 December. The proceedings were then adjourned until Monday 15 December when cross-examination was continued. The following day, after the morning adjournment, Mr Donovan applied for an adjournment of the hearing. I was informed that MOD was distressed and unable to continue his evidence and that arrangements had been made for him to see a psychiatrist, Dr Cassimatis, that evening.

MOD did not return to complete his evidence. Ultimately an application was made that he be excused from giving further evidence because of his mental condition. Evidence was led from Dr Cassimatis in support of the application. The evidence given by Dr Cassimatis on the application was later tendered in the trial.

Dr Cassimatis’ evidence was that MOD was discharged from the Police Service in 1998 having been assessed as hurt on duty. In October 1996 Dr Cassimatis had diagnosed him as suffering from a psychiatric condition involving major depression and an acute stress disorder. These conditions, in Dr Cassimatis’ opinion, stemmed from the pressures associated with the W investigation. Dr Cassimatis had reviewed MOD from time to time. In December 2000 he had been seeing MOD on a monthly basis, prescribing medication and providing ongoing psychotherapy for his depressive disorder.

Dr Cassimatis gave further evidence in February 2004. At that time it was his opinion that MOD was suffering from a major anxiety disorder and a post-traumatic stress disorder, and that should he be required to complete his evidence it would result in him being quite ill from between six months to two years.

I excused MOD from further attendance.

The question arose as to what use, if any, might be made of the evidence of MOD. His cross-examination had the appearance of being far from complete at the time that he became psychiatrically unwell.

MOD presented throughout evidence in chief as a confident, precise witness with a detailed recall of the progress of the W investigation. He was an exemplar of a practiced police witness. I considered that no assessment of the credibility of his evidence based on his demeanour could be made.

At the point that he became distressed MOD was being cross-examined about the circumstances in which he had taken a very lengthy statement from SW. He was confronted with a prior inconsistent statement concerning the materials that he had available to him at the time of taking the statement.

In Heydon JD, Cross on Evidence (Sydney: Butterworths, loose-leaf Aust ed) at [17480] there is discussion of the effect of the loss of the right to cross-examine a witness who has become unfit to complete his evidence. The preferred view is suggested to be that the evidence remains admissible, although its weight may be diminished. This approach, it is noted, is consistent with the provisions of s 13(6) of the Evidence Act 1995 , which deals with the evidence of a witness who dies or who ceases to be competent.

The plaintiffs did not submit that I would disregard MOD’s evidence in its entirety. They sought to rely upon parts of it. It seems to me that since the cross-examination had not been completed I should not accept his evidence on matters in issue in the absence of independent evidence tending to support it. THE HISTORY OF THE ALLEGATIONS MADE BY THE COMPLAINANTS SW’s first complaint to the police: The Cruickshank statement

On 30 March, following the counselling session with Mr Keir on 21 March, SW went to the Manly Police Station where she saw Detective Cruickshank. Over the course of that day and the next Detective Cruickshank took a narrative statement that detailed a long history of sexual abuse of SW by her father. Throughout the taking of her statement SW was accompanied by a support person.

The Cruickshank statement was lengthy, consisting of thirty-four single spaced typewritten pages. In it SW gave an account of having been sexually abused by her father from the time she was five years old. She was able to date the commencement of the abuse to the day of her grandfather’s funeral. She described frequent sexual abuse of increasing seriousness, continuing until a fortnight before the date of the statement, when her father had called to her home and raped her.

SW made no allegation in the Cruickshank statement of having been sexually abused by any person other than her father. She said that she had not told her mother about the abuse. She feared that her mother would kill herself were she to learn of it.

At the date of making the Cruickshank statement SW was very underweight. She was receiving medical treatment and counselling for anorexia.

Detective Cruickshank has had lengthy experience in taking statements from complainants in sexual assault cases. Over the course of the two days that it took her to take the statement, SW was often distressed and it was necessary to take frequent breaks. Detective Cruickshank considered that SW was a credible complainant. She conveyed her opinion in this respect to MOD. Detective Cruickshank thought that SW might not have revealed everything about the abuse. The further investigation of SW’s complaint

Detective Cruickshank made arrangements for the further investigation of SW’s complaint to be taken over by the detectives attached to the Dee Why Police Station. On 7 April she gave SW’s statement to Detective Senior Constable Yeomans.

SW was aged eighteen at the date she made her complaint. She did not allege that her younger sisters or brother had been abused. However, the nature of her allegations was such as to give rise to concern for the welfare of the children who were still living in the family home. Detective Yeomans reported SW’s allegations to DOCS.

Detective Senior Sergeant Burns, the Chief of Detectives at Dee Why, assigned the investigation of SW’s complaint to MOD. MOD was a detective sergeant with considerable experience in the conduct of criminal investigations, although he did not have specialist training in interviewing complainants in sexual assault cases. MOD was assisted by Detective Yeomans throughout the investigation. The two had not previously worked together. Neither knew SW nor any member of her family.

MOD was given the Cruickshank statement on Monday 11 April. On 13 April he spoke with DOCS officers about SW’s complaint. During the course of this discussion he expressed the concern that SW’s mother may be colluding in the abuse. SW had not made such a claim.

It was apparent that SW’s initial complaint had been made to Douglas Keir. MOD appears to have spoken to Mr Keir by telephone on 15 April. No statement was taken from Mr Keir concerning the disclosures that SW had made to him before the decision was made to arrest AW and LW.

After making her complaint to the police SW went to stay with her maternal uncle PS and his wife YS, and their family, on the Central Coast. On 17 April MOD and Detective Yeomans travelled to the Central Coast to interview SW. She attended the Woy Woy Police Station with PS. MOD commenced interviewing her in the presence of Detective Yeomans and PS. SW became distressed and MOD continued the interview with her alone. The only record of the interview is the handwritten notes that were recorded in pencil by MOD on a copy of the Cruickshank statement (the annotations to the Cruickshank statement).

Some of the material contained in the annotations to the Cruickshank statement is not repeated in the later statements that SW made in connection with the investigation.

It was clear to MOD on 17 April that SW was alleging that her mother, LW, was complicit in the abuse in that she knew that her husband had sexual intercourse with SW when she was as young as nine years old. This was inconsistent with the account SW had given to Detective Cruickshank.

On 18 April SW attended a counselling session with Douglas Keir. In the course of this session it appears that for the first time she gave an account that her mother had participated in the sexual abuse.

The next day SW telephoned MOD early in the morning, telling him that there were matters that she had not disclosed and that her mother had been involved in the sexual abuse. MOD recorded the fact of the call in his duty book. He made notes of the contents of the discussion in a Spirex notebook. After the telephone conversation with SW, MOD spoke with an officer of DOCS about the coordination of the investigation. He made arrangements for SW and her uncle to be conveyed to the police station.

At 1:15pm on the afternoon of 19 April MOD interviewed SW at the Dee Why Police Station. Again, MOD interviewed SW alone. He made notes of the interview in his Spirex notebook. SW gave further details of the sexual abuse to which she claimed her mother had subjected her.

On 26 April MOD commenced taking a further statement from SW about her allegations of sexual abuse by both AW and LW. This statement was taken over twelve days (the second statement). The allegations that SW made in it differed in important respects from the allegations that she had made in the Cruickshank statement. The circumstances in which the second statement came to be made will be addressed in dealing with the plaintiffs’ case on malice. EW’s complaints

EW was interviewed by DOCS officers at the Manly Community Services Centre on the afternoon of 19 April. EW and SW were both present at the Dee Why Police Station on the evening of 19 April. Their uncle, PS, was also present. MOD was told that EW had made disclosures of digital sexual interference by her brother and father in her interview with the DOCS officers.

EW’s allegations of sexual misconduct by her father were elicited in the interview with DOCS officers by leading questions and only after initial denials. She denied that her mother had engaged in any form of sexual abuse. It appeared from things EW said in the course of this interview that SW had spoken to her, at least in general terms, about her (SW’s) allegations.

EW volunteered in her interview with the DOCS officers that her older brother, JW, had engaged in sexual misconduct with her. Each of the children volunteered that there had been sexual contact with JW. Each initially denied awareness of any form of sexual misconduct involving their parents. This was one of the few respects in which the children’s accounts exhibited any consistency.

The only significance of the material contained in the interview of 19 April between DOCS staff and EW is to the extent that MOD knew that EW had made an initial denial of parental abuse and that her subsequent complaints were elicited in response to leading questions. There was close liaison between MOD and DOCS officers in connection with this investigation. A transcript of the DOCS officers’ interview with EW was annexed to an affidavit sworn in connection with the Children’s Court proceedings on 10 May. I think it likely MOD had seen the transcript prior to 23 June.

The first statement made by EW in the course of the police investigation was on 10 May. She was interviewed by Constable Marnie Nicholson. EW was aged thirteen years at the time. In the first statement EW said that her father had sexually interfered with her from when she was aged about nine years. She particularised a number of specific instances of abuse. She said that her mother occasionally got involved when her father was abusing her. She instanced an occasion when her father was having anal sex with her and her mother walked into the room naked with a vibrator and inserted it into her vagina.

EW made a second statement to the police on 16 May in which she detailed allegations of sexual abuse by her mother. She claimed that her mother started indecently touching her when she was in Year 3. From the time she was in Year 5 her mother had digitally penetrated her and licked her vagina and breasts and made EW do the same to her. In this statement EW made a number of allegations of abuse associated with menstruation.

One feature of the account EW gave to the police in the first statement related to her claim to have had an abortion. Prior to Christmas 1993 she said that she thought she might have been pregnant because she had not had a period for six weeks. She had been taken by her parents to a house where a man carried out an abortion on her on the dining table. Her mother and father held her down during the procedure. She experienced the worst pain that she had known in her life. She screamed out in pain and her father struck her. She had lost consciousness after this.

In the course of re-telling the story of the abortion in successive statements EW gave differing accounts of the circumstances in which she had her pregnancy confirmed. In the initial account she said that her mother tested her urine using a home pregnancy test. Later she was to say that a man had called to the family home and examined her in her bedroom, making her urinate into little cup. He had then told her mother that she was pregnant. In the later version she said that the abortion was carried out on the kitchen table.

In giving her initial account EW said that she had written to Dolly magazine seeking advice about her fears that she was pregnant. She claimed that Dolly magazine published a reply to her letter, but that it was too late.

On 18 May Constable Nicholson took a third statement from EW in which EW said that her father had sexually assaulted her cousin, SS, during a family holiday at Murrurundi. SS was one of the cousins with whose family EW had come to live in the aftermath of the disclosures of abuse.

On 2 June Constable Nicholson took a fourth statement from EW concerning allegations relating to her cousin, KS. In this statement EW described seeing her father indecently touching KS on an occasion around Christmas when her uncle and aunt and their children were visiting the family home. This occurred when EW was aged around nine or ten years.

On 7 June EW made a fifth statement in which she detailed her knowledge of a sexual assault committed by her father on her cousin, BS. This incident also occurred at Christmas when EW was aged eight or nine years and the S family were visiting the family home. Her father made her hold BS while he removed BS’ pants and anally penetrated her. He made EW put her finger inside BS’ vagina. No complaint was made by BS concerning this incident or any incident of sexual abuse.

EW made a further statement on 8 June 1994 outlining allegations of sexual interference with her cousin, CS. The incident occurred on Boxing Day 1992 when KS was aged around five and a half years. She saw her father rubbing KS’ bottom and between her legs near her vagina. CS made no complaint about this incident or any incident of sexual abuse.

In the course of a discussion with Constable Nicholson on 6 June it appears that EW made an allegation that her mother had used a syringe to take blood from her. On 10 June Constable Nicholson took a statement from her about this allegation. In the statement EW said: “It was about two years ago, near the end of November. It was a school day. It was when I had my first period, it was the morning after the first day of my first period. Mum took blood from my left breast. We were in the kitchen. I was standing near the kitchen bench, I was leaning on it, my bum was leaning on it. It was the kitchen bench that has a red bench top, Dad put it on. Mum came over to me with the needle in her hand. The cap was off the needle end. She said, ‘come here’. I went over to her. She unzipped my school uniform and held me still. She stuck the needle in and said, ‘watch everyone, I’m taking her blood.’ JLW, JW, JS, were also there, Dad was at work. Mum half filled the needle with blood. I don’t know what they did with the blood. Mum took the needle.” According to EW this incident occurred in the morning before school. Her mother took the syringe with the blood to the bathroom and left it next to the sink. It was still there when EW came home from school. On her return from school, she continued: “She [her mother] dragged me into my bedroom and poured the blood on my bed sheet. She pulled the bottom part out and tipped it upside down. I had to leave it there the whole time I had my first period. I felt really dirty when I woke up in the morning because I had to sleep on it. Each night she took some more blood from me, in the kitchen, from my left breast, put it on my bed sheet. She did this for about seven nights. Each night she used a different needle. I watched her get it. My sheet had blood in the middle of it. In the morning the blood had sort of soaked in and it was a bit darker. Every time she did it she said, ‘blood’s coming out of you so you’ll have to sleep in it’.”

EW claimed that LW took blood from her breast about ten or twenty times. Sometimes she did it when EW was not menstruating, but most of the time it took place when she was menstruating. Her breast felt very sore and the procedure left a mark for a few days.

Constable Nicholson was a relatively junior officer who did not have investigative training. Detective Hill was assigned to the W investigation on 18 May. She had completed the Initial Response Officers’ Course (IROC) in mid 1991. This course relates to the conduct of interviews with complainants in sexual cases. Since that time Detective Hill had been involved in a number of investigations of sexual assault complaints. Although she was not designated as a detective in 1994 her duties were investigative and she was working as a detective. She commenced working on the W investigation on 18 May. Initially she was assigned to interview JLW. As time went on Detective Hill found that she was giving directions to Constable Nicholson about matters in EW’s statements that required clarification and investigation. Ultimately MOD assigned her to take over the further interviewing of EW.

Detective Hill conducted a number of interviews with EW in which she sought to clarify the allegations that EW had made in her statements.

EW came to retract certain of her allegations during the course of the investigation. None of the retractions occurred before AW and LW were charged with the further offences, including offences against EW, at court on 23 June 1994. The evidence of EW’s complaint

EW claimed that she had complained about the sexual abuse to her friend Christine. On 20 July Detective Hill took a statement from Christine. Christine said that she had known EW since the beginning of 1993. EW had told her, “I don’t like going over to Tony’s house or when he comes over here because they feel me and I don’t like it”. Christine explained that Tony was EW’s next-door neighbour and that he was a good friend of her brother. She was not sure when the complaint was made to her, but she thought it was around August 1993. On another occasion at school EW told Christine that “they’d stopped it for a while after she told me the first time but then they started it again later” (Q & A 17). Christine clarified that her reference to “they” was a reference to EW’s brother, JW, and the neighbour, Tony. Christine’s statement provided no support for EW’s assertion that she had complained of parental sexual abuse.

On 21 July 1994 Detective Hill interviewed EW about what it was that she had said to Christine. EW agreed that she had told Christine that Tony and JW did stuff to her. She explained that she had not wanted Christine to know that it was her father who was interfering with her. EW’s medical examination

EW was seen on a number of occasions by Dr Allen at the Gosford District Hospital as the result of the allegations that she made. A statement from Dr Allan, dated 23 June, records attendances by EW with Constable Marnie Nicholson on 13 May, 23 May and 26 May. It would seem that at the first consultation Constable Nicholson related some details of the alleged abuse. The history given included vaginal intercourse, anal intercourse and an illegal abortion. EW was described as being unwilling to undergo an examination on that occasion. On the second visit her attitude appears to have still been one of reluctance with respect to the physical examination but she agreed to have blood tests. On the third visit EW was described as still being very reluctant to undergo an examination and as having difficulty tolerating the procedure.

Dr Allen recorded her findings as follows: “EW is a thirteen year old girl. There have been allegations of sexual abuse. The genital examination was not well tolerated; speculum examination caused considerable distress and was terminated. The appearance of the vulva, perineum and perianal regions was normal; a small area of the base of the hymen was not adequately visualised but was otherwise normal. A normal genital examination neither confirms nor denies a history of sexual abuse.”

Detective Hill had obtained medical records relating to EW and various other of the children. She recalled that EW had not undergone a completed examination with Dr Allen. She had discussed with EW the reasons for this and EW told her that she had not wanted to go through with the medical examination with Dr Allen because Constable Nicholson was present. After consultation with MOD Detective Hill suggested that EW agree to a further medical examination.

Detective Hill took EW to the Sexual Assault Unit at the Royal North Shore Hospital on 17 June, where she was seen by Dr Edwards. Dr Edwards obtained a history that included that EW had been subject to vaginal and anal intercourse and to the use of a vibrator from the age of about nine years and that she had an abortion performed on her when she was about two months pregnant. Dr Edwards provided a statement to police on 20 June in which, after setting out this history, she expressed the following conclusion: “Physical examination revealed no abnormality. Genital examination revealed a redundant hymen with a frilled edge and a large opening. Inspection of the anus in the left lateral position revealed spontaneous anal dilation to about 0.5cm. The findings of no genital abnormalities and definite spontaneous anal dilation in the left lateral position is consistent with the history obtained by me.” EW’s retractions

Detective Hill consulted Dr Bedami, the Government Medical Officer, on 29 June about EW’s claim to have had blood removed from her breast with a syringe. It was his opinion that the allegation was not likely to be true. Detective Hill conveyed this advice to MOD. He told her that he proposed obtaining further medical opinion about the matter.

The following day EW telephoned Detective Hill and told her that she needed to see her. EW said that it was not true that her mother had taken blood from her breast: the blood had been taken from her arm. Detective Hill arranged to see EW later that day.

Detective Hill interviewed EW and recorded the retraction of her allegation. In the interview EW adhered to her account that her mother had taken blood from her using a syringe. It was taken from a vein in her arm. She maintained that JLW, JW and JS were present when this occurred.

EW also maintained that her mother had regularly taken blood from her and that the blood had been tipped onto the bed sheet. She continued to claim that her mother had injected the blood into her vagina but she now said that the pointy part of the needle had not been inserted into her vagina. Detective Sergeant Hill asked why EW had earlier claimed that blood had been taken from her breast. EW said, “because I was sick of doing statements and I wanted youse to think I was lying” (at [A 84]).

On 29 July 1994 Detective Hill took a statement from Ms Funnell, an employee of Australian Consolidated Press, the publisher of Dolly magazine. Ms Funnell said that the 5 January issue of Dolly magazine included a feature on incestuous sexual assault. Detective Hill was given a copy of a letter that had been received by Dolly magazine. It read: “I am 13 and me and my dad have sex every night. I saw an article on it a while ago so I am writing in too. My real worry is that ever since I was 11 I have had my period monthly but the last 2 times they haven’t come I am worried that I am pregnant what should I do please help me I am too afraid to go to the chemist or doctor.” EW had earlier identified this as the letter that she had written. After obtaining the letter Detective Hill had doubts about EW’s account. It was apparent that the handwriting on the letter was not the same as the handwriting on a letter that EW had written to Detective Hill on 30 July. Detective Hill’s concerns were heightened during a discussion on 2 August when EW did not wish to be drawn on the topic and wanted time to think about the stationery on which she had written the letter to Dolly magazine.

On 15 August Detective Hill took a statement from EW in which she said that her allegations about undergoing a pregnancy test and writing a letter to Dolly magazine were not true. During the course of this interview EW complained of feeling sick and the statement was suspended. It was completed on Monday 22 August. EW told Detective Hill that she had not been pregnant. She said she had made the story up because when she had told Constables Nicholson and Woolston about her history of abuse Constable Woolston had asked, “And you didn’t get pregnant?” This prompted EW to make up the story.

Constable Woolston did not give evidence. Detective Hill was cross-examined about this matter. I am satisfied that Detective Hill spoke with Constable Woolston at the time and that Constable Woolston denied making such a remark. This was a matter of some importance. The likelihood is that Detective Hill told MOD about it. EW’s explanation for the lies that she told about the pregnancy and the abortion was itself suspect. Detective Hill and MOD were aware of that fact. JW’s complaints

JW gave evidence in the plaintiffs’ case. He was born in October 1978. He was fifteen years of age at the date of his parents’ arrest. He saw his mother being taken from the family home on 19 April. He did not see her or his father again for a number of months. The conditions of their bail did not permit them to have contact with their children. JW did not know this. He was removed from the family home and placed at the Minali Receiving and Assessment Centre, Lidcombe. He remained in that facility for around six weeks. Minali proved a frightening environment for him. Ultimately he was placed with an older cousin, LS, and her family. He remained in this situation until he had completed Year 12. In 1997 he moved interstate and commenced university studies. He graduated in computer/mathematic sciences with second-class honours. At the date of giving evidence he was employed as a computer systems officer and had been living with his girlfriend for a number of years.

EW had disclosed that she had been sexually interfered with by JW in her interview with DOCS officers on 19 April.

On 20 April JW was interviewed by DOCS officers. In the course of the interview he was asked about his relationship with his mother and father. He described a good relationship with his mother and a more distant relationship with his father. He made no allegation against either of his parents. The interview included the following exchange: “Q. I don’t think there’s any point in beating around the bush. EW had told us that you have touched in a way that she made her feel uncomfortable, hurt her and caused her a lot of distress. Right? A. Yes. Q. The sort of information SW’s given us is more complex and your Mum and Dad have been charged. A. Shit. Will I ever see them again? Q. Yes you will and you won’t be charged by the police: You are a child and although we know you’ve done stuff to EW it won’t be the same story. I think we need to be straight about that. You can choose not to talk to us about it but you should know that we have this information about you. Things aren’t going to be the same for your family.” The interviewer went on to ask about the allegation that JW had sexually interfered with EW. He acknowledged that he had done so. He volunteered that the last episode of sexual contact had occurred about one week earlier. He was asked: “Q. Do you know if anyone else in your family has touched anyone in any inappropriate way? A. No. Q. Have you touched anyone else? A. Yes. JLW.” As the interview progressed it was put to JW: “Some families have shaky boundaries in terms of space and in touching so your left not really knowing what’s right and what’s wrong. I would suggest that your family might have informal rules about this. A. Do you mean if I’m doing it to them then someone’s touched me or I’ve seen someone do it? Q. Yes. A. Well I haven’t and no one’s touched me.”

JW was asked if he thought that his mother and father might have guessed that he had sexual contact with his younger sisters. He said he thought not, as they had not been at home when the incidents occurred. He did not think that either of his younger sisters had engaged in any form of sexual play with anyone apart from him.

Detective Yeomans read the transcript of the DOCS officers’ interview with JW and was aware that JW denied knowledge of any sexual misconduct involving his parents.

On Friday 29 April Detective Yeomans and Stephen Dinning, a DOCS District Officer, collected JW from Minali and took him to the Bankstown Police Station to interview him.

In the course of the interview that followed, JW made allegations that his mother had sexually interfered with him, that he had observed his father behaving sexually inappropriately with JLW and that he had heard his father having sexual relations with someone in the bathroom of the family home.

The circumstances in which JW came to make these claims were the subject of controversy. JW recalled being interviewed by Detective Yeomans and Stephen Dinning on 29 April. He said that during the course of the interview Detective Yeomans had asked Mr Dinning to leave the room and that Mr Dinning did so and was absent for around fifteen minutes. In the time that Mr Dinning was away, JW said that Detective Yeomans told him that what he, JW, was saying was “frog shit” (T 395.9). JW said that Detective Yeomans “just told me everything I was saying was lies. He said he knew stuff had happened, things had gone on” (T 396.50 – 51). Detective Yeomans was standing close to him as he said these things and JW felt threatened by him.

JW said that he had denied having any sexual contact with his mother or father before Mr Dinning left the room. He said that the three of them had left the police station to go to a nearby milk bar for lunch. After lunch he had been asked further questions along the same lines. He said that he had felt scared and tired and that after returning from lunch he had answered some of the questions differently. He was asked in chief: “Q. In what way did you answer the questions differently? A. I started to agree with some things. Q. When you started to agree with some things, were you answering Mr Yeomans’ questions truthfully or untruthfully? A. Untruthfully. Q. Why were you agreeing with him in an untruthful way? A. I just felt scared. I didn’t think I was gonna get out of there” (T 399.1 – 12).

JW said that Mr Dinning was present when he had started to agree with the questions put to him by Detective Yeomans.

JW was collected from Minali by Detective Yeomans and Mr Dinning on 4 May and taken to Flemington Police Station. On this occasion he signed a statement containing the allegations that were recorded in Detective Yeomans’ notebook as having been made in the course of the earlier interview. The statement was typed on a computer by Detective Yeomans in the presence of Mr Dinning and JW.

JW alleged that during this interview on 4 May Detective Yeomans asked Mr Dinning if he’d like to get a drink and that Mr Dinning left the interview room. In his absence JW said that Detective Yeomans had told him that his parents did not care about him and that they only wanted to know if he said anything against them.

JW said that he looked at the computer screen but that he did not read the statement thoroughly. A copy of it was printed and he signed at the bottom of each page. He did not read it through before signing it.

JW swore two affidavits in the Children’s Court proceedings in which he sought to retract parts of this statement. He was assisted in the preparation of the affidavits by his solicitor, Ms Blumberg. The first affidavit was sworn on 10 October 1994. In it JW said that Detective Yeomans had asked Mr Dinning to leave the 29 April interview saying words to the effect, “I would like to have a word with JW by himself”. Mr Dinning had also been absent for a time getting lunch. JW said that while Mr Dinning was absent Detective Yeomans had said words to the effect, “What you’re saying is frog shit – you’re lying”. Significantly, in the first affidavit JW said that: “I felt very pressured and I began to wonder if I would ever get away from there. I felt so confused and desperate that I started to believe that no members of my family cared about me. I thought and thought and eventually I thought I remembered a few incidents when I was a little boy when my mother touched my penis, so I told the police about these. Most of these incidents happened when I was very young, and when I was asked ‘did these events worry you?’ I replied ‘I have never thought about them or even remembered them until now’. JW went on to give an account of having been told by Detective Yeomans during the second interview on 4 May that his parents did not care about him. He referred to a number of paragraphs of the statement that he had signed on that day and denied having made certain allegations concerning his father. He did not make the same assertion about the things he had said in relation to his mother. He said that the first time he had read the printed statement was in his solicitor’s office on 12 July 1994.

In the concluding paragraph of the first affidavit JW said: “I have not consciously lied to the police at any time. I have felt so pressured and confused by the end of the extremely long sessions of questioning that I have felt I have to say something to them to bring the interviews to an end.”

JW swore a second affidavit on 9 November 1995. He had written to Ms Blumberg two days earlier saying that he needed to discuss his statement: he had believed that he had retracted all his allegations but he was no longer sure that this was the case. In the letter he pointed out that it was nearly Christmas and he said that he was desperate to see his parents.

In his second affidavit JW referred to the allegations that he had made in his statement about his mother. He acknowledged that he had made the assertions but he denied that the incidents had occurred. He denied that he had claimed to have heard his father having intercourse in the bathroom. He had heard no such a thing. This was in contrast with the account given in the first affidavit in which he clarified the claim made in the statement by saying that he did not recognise the girl’s voice that he heard coming from the bathroom (first affidavit, paragraph 7(c)).

JW remained very distressed by the events surrounding his parents’ arrest and his subsequent placement at Minali. There were aspects of his evidence that I did not consider to be reliable. In evidence in chief he said that the things he said in his statement concerning his mother had been given in answer to leading questions. When this aspect was taken up with him in cross-examination and he was taken to each of the allegations and asked if Detective Yeomans had put such a proposition to him he repeatedly responded in terms, “I can’t recall” or “I don’t know”. He acknowledged that he was not claiming that Detective Yeomans had made up the various allegations contained in his statement (T 466). His attention was directed to paragraph [6] of the first affidavit in which he said, “I started to think up things which may have happened but which had not bothered me at all and which I had all but forgotten.” He was unable to say to what parts of the statement this referred.

JW was not able to offer a satisfactory explanation for why he failed in the first affidavit to retract those portions of the statement that he was later to claim were untruthful.

Detective Sergeant Yeomans gave evidence on behalf of the defendant. At the date of giving evidence he had been a member of the Police Service for twenty-three years. He was designated as a detective in 1990. In 1987 he undertook the IROC training. He did a further course dealing with interviewing child victims in the early 1990s. He had lengthy experience as an officer attached to the Child Protection Squad.

The interview on 29 April was the first occasion on which Detective Yeomans had spoken with JW. He recalled that it lasted about two and a half hours. He recorded a meal break in his duty book that was taken between 1:00 pm and 1:30 pm. The interview had been completed following the meal break. He was not able to recall whether Stephen Dinning had left the interview room on an occasion before the lunch break.

Detective Yeomans said that he had recorded the interview with JW in his police notebook but that there had been conversation in addition to that recorded in the notebook. He recalled that Mr Dinning had gone to get the lunch while he and JW waited in the interview room. He said that the interview was not continued during Mr Dinning’s absence.

Generally it was Detective Yeomans’ evidence that the interview conducted with JW on 29 April unfolded consistently with the notes in his notebook. He denied saying words to the effect, “I don’t agree with what you’re telling me. What you’re saying is frog shit”. He denied that he had asked any leading questions or that anything was said to suggest that the police believed that JW had been sexually abused by his parents. On Detective Yeoman’s version of events, JW volunteered that he had been the subject of abuse very shortly after the commencement of the interview.

Detective Yeomans said that at the second interview on 4 May he had read from the notes taken at the first, pausing to confirm the accuracy of the entries with JW. At one point JW changed the sequence of events in the narrative and added some additional information, which appears in the statement that JW signed. I think that it is likely that JW volunteered this material on 4 May.

Detective Yeomans visited JW at Minali on a number of occasions. He said that he did so to see if JW wished to make further disclosures and by way of rapport building. On more than one occasion JW had requested that he return. On one occasion Detective Yeomans arranged counselling for JW. JW did not recall any of these visits.

Stephen Dinning gave evidence in the plaintiffs’ case. He is now an Anglican Minister. He commenced employment in early 1994 with DOCS. He was aged twenty-three at the date of the subject events and had had about three months’ experience working with DOCS.

Mr Dinning drove Detective Yeomans to Minali on 29 April. He told Detective Yeomans that JW had made no allegations against his parents.

At the commencement of the interview Mr Dinning started taking notes in a notebook. Detective Yeomans told him that he, Yeomans, would record notes of the interview. Thereafter Mr Dinning took no further notes. He recalled that at the start of the interview Detective Yeomans said something to JW along the lines, “What you say you can’t get charged for” or “get into trouble for” (T 862.42 – 49).

Mr Dinning said that Detective Yeomans had said at a point in the interview that he wished to speak to JW by himself and had asked Mr Dinning to leave the room. Mr Dinning had done so. He returned to the interview room when requested to do so.

Mr Dinning recalled that Detective Yeomans had said to JW at some stage in the course of the interview words to the effect, “I have information about things that have gone on at home but I can’t say those to you, I need you to tell me about them” (T 868.39 – 41). He was taken through the contents of the interview as recorded Detective Yeomans’ notebook. He did not have a detailed recall of the sequence of events or of what had been said. He recalled that JW had been upset at one point during the interview. He had become teary when talking about some of the incidents. Mr Dinning was unable to recall whether he had observed a change in JW’s demeanour when he returned to the interview room. Generally he said that JW had been quiet during the interview although “when he got on a roll with answering questions he would talk without a lot of prompting” (T 866.37 – 39). Mr Dinning recalled in general terms that JW had said the things that Detective Yeomans recorded in his notebook.

Mr Dinning recalled that the interview on 4 May had been less intense than the first and had involved Detective Yeomans going over the information that had been supplied on the earlier occasion and typing it up. Mr Dinning said that all three of them were able to see the computer screen as Detective Yeomans was typing.

I am satisfied that JW made the allegations concerning AW and LW that were recorded in Detective Yeomans’ notebook during the course of the interview on 29 April.

Mr Dinning did not observe any threatening or overbearing behaviour by Detective Yeomans on either occasion. When asked in cross-examination if JW had appeared to be frightened of Detective Yeomans he paused before answering that he was not sure. He was not able to recall if JW had said anything about his feelings about Detective Yeomans at the time of signing the statement on 4 May. He believed that in a later discussion JW had said he did not like Detective Yeomans very much or something to that effect.

The notes taken by Detective Yeomans during the 29 April interview did not record breaks. Detective Yeomans acknowledged that he may have asked Mr Dinning to leave the interview room on one occasion. No record of Mr Dinning’s absence from the interview is noted. Detective Yeomans acknowledged that he was not able to say whether Mr Dinning left the interview room before or after a disclosure by JW of wrongdoing on his own part. I understood him to agree that it would have been wrong to ask Mr Dinning to leave the room and to continue the interview at a time when JW had acknowledged or was in the course of acknowledging wrongdoing on his own part.

After being taken out of Minali, JW was placed with his older cousin, LS, and her husband and children. LS first visited JW in Minali on a Sunday about a week after she became aware that DOCS had become involved with the care of the W children. JW was distressed throughout this visit. He told LS that he had been spoken to by Detective Yeomans. LS recalled that JW had complained that he had been sworn at by the police. She recalled that he had said that the police officer used the expression “frog shit”.

LS visited JW at Minali about two or three days after her first visit. She had also spoken to him on the telephone. On each visit JW appeared to be scared. LS recalled that on the second visit JW told her that the police had come back to interview him again. He complained to her that the police were making him say things and that if he did not give the right answer he would remain at Minali. On both visits he cried a good deal. He appeared to LS to be confused.

LS was not able to recall whether she had visited JW on other occasions at Minali. She had spoken to him a lot on the phone.

After JW went to live with LS and her family he claimed that some of the things he had said to the police were not truthful. He asserted that he had been threatened with remaining in Minali if he did not speak to the police. LS described JW at this time as “a very confused young fifteen-year old boy that didn’t know what was going on” (T 775.51).

After JW started attending a local high school, LS was contacted by the school librarian after an occasion when the police had called to speak to JW. LS went to the school and collected him. He was in a state of distress and complained that the police had threatened him with being returned to Minali if he did not talk to them.

In cross-examination LS was confident that JW had complained to her in the first day or two after he came to live with her that the police had told him he would go back to Minali if he did not talk to them. She said that JW’s account that the police officer had sworn at him using the word “frog shit” was given in the course of her second visit to Minali. She was confident that JW had told her this before the occasion when she took him to see Ms Blumberg later in the year. LS agreed that in an affidavit sworn by her in connection with the Children’s Court proceedings she had not given an account of JW complaining to her that the police had used the expression “frog shit” when she first saw him at Minali. Nonetheless she maintained that he had told her this on that occasion.

Detective Hill went with Detective Yeomans to JW’s high school on 20 July. She recorded notes of the interview with JW at the school on that day, which took place in the presence of the Principal. The purpose of the interview was to see whether JW was able to pinpoint the timing of the various incidents that he had described in his statement. JW read his statement but was not able to recall any details of the timing of the events. JW had asked Detective Hill for her name and she told him that he was free to contact her as well as Detective Yeomans. She said that JW appeared to be quite a nice young fellow who had seemed happy to speak with the police. She was present throughout the interview and denied that any threat had been made in the course of it.

I do not find that JW was threatened on 20 July with being returned to Minali if he did not speak to the police. I accept the evidence of Detectives Yeomans and Hill in this respect. JW was distressed by this visit but this was not apparent to either officer.

I am satisfied that during the course of the interview on 29 April Detective Yeomans conveyed to JW in the absence of Mr Dinning that he, Yeomans, did not believe that JW had been truthful and that in doing so he referred to JW’s account as “frog-shit”. I accept that JW perceived Detective Yeomans’ remarks as threatening and that he commenced to give his account of sexual misconduct involving LW and AW only after this incident. I am satisfied that the disclosures that JW made on 29 April were made by him and that they were not merely his concurrence with suggestions put to him by Detective Yeomans.

In coming to these findings I have taken into account the following. The account of the 29 April interview recorded in Detective Yeomans’ notebook is that shortly after Detective Yeomans introduced himself and Mr Dinning he asked JW, “What’s been happening?”, to which JW responded, “Heaps of things where do you want me to start”. Mr Dinning then said, “Wherever you like, take your time” and JW volunteered, “It has to do with stuff that’s embarrassing and hard to say, real hard”. Following those preliminary exchanges Detective Yeomans records that JW volunteered his account of sexual improprieties involving his mother.

Apart from it being perhaps surprising that JW took an unprompted stance so different from that which he had adopted in his DOCS interview, this account does not accord with Mr Dinning’s recollection that Detective Yeomans said to JW words to the effect, “I have information about things that have gone on at home but I can’t say those to you, I need you to tell me about them” (T 868.39 – 41). Accepting that Mr Dinning did not have a contemporaneous note of the interview, I nonetheless think it likely that his recall that Detective Yeomans said words to this effect at the interview is correct. This suggests that JW was not immediately forthcoming with his disclosures.

Mr Dinning said that he had not thought quickly when Detective Yeomans asked him to leave the room to say that he would like to stay. Had he been more experienced he would not have left. I am satisfied that the request was made and complied with and that it was a notable incident in the conduct of the interview. Detective Yeomans’ notes do not record the request or that Mr Dinning left the room. Detective Yeomans’ evidence on this issue was unsatisfactory. He denied recall of having made the request initially although he did not assert that it had not happened.

I am satisfied that Detective Yeomans asked Mr Dinning to leave because he wanted to speak privately with JW. Ultimately he did not deny this to have been the case. On his version of the interview that is set out in his notes there is no reason for him to have made the request.

Mr Dinning said that he understood that JW was being interviewed as a victim and not in relation to his admissions concerning his sexual misconduct with his younger sisters. I am satisfied that Detective Yeomans thought that JW was the victim of abuse and that he asked Mr Dinning to leave the room in order to impress on him the need to give an account of it. JLW’s complaints

On the day of her parents’ arrest, JLW, an eleven-year old child, was upset and crying. She too was taken to Minali. After a very short stay there, accommodation was found for her with relatives.

On 16 May Constable Woolston interviewed JLW. In the course of the interview JLW was asked whether anything had happened to her at home that she did not feel comfortable with. She acknowledged that something had happened to her: JW used to touch her on her vagina. She gave an account of the last occasion on which such an incident had occurred. She recalled the time of day, what was on the television, that her mother was out doing the banking and that her father was at work. She was asked if she could identify another occasion when something had happened with her brother. She nominated a time when she and her brother had been fighting in the lounge room over what to watch on television. It was a pupil free day at school. This incident had occurred before Christmas 1993. It took place after EW’s birthday in mid-October 1993.

On 19 May Detective Hill interviewed JLW who again detailed instances of inappropriate touching by her brother. Her account was consistent with the account that JW volunteered when first spoken to by DOCS officers. In the course of this second interview JLW was asked: Q 32. Is there anything else you want to tell me? A. I feel the same way about Dad as I feel about JW. I sometimes feel frightened of Dad that he is going to do something to me. Q 33. Do you know why you feel that way? A. No. I think he might have done something to me before, but I can’t remember. Q 34. What sort of thing do you mean? A. I don’t know. Q 35. Is there anything else you want to tell me? A. I think Dad might have touched my cousin SS. … Q 37. Why do you think that Dad might have touched SS? A. Because SS sometimes used to stay at our house and then go to Murrurundi with Dad, JW, EW and SW, Mum and me. Q 38. Have you ever seen or heard your Dad do anything to SS? A. No, but it could have happened.”

On the following day, 20 May, Detective Hill conducted a further interview with JLW. On this occasion JLW said: “Last night I remembered something from when I was about four. Dad, EW and SW were in the room at the time, I think that Dad was touching us on the vagina. That is all I could remember.” In answer to further questions JLW said that she did not think her mother had been at home at the time and that her father had been babysitting. She was unable to remember whether the touching was to the inside or outside of her clothing. In the course of this interview JLW also said: “This is about Keith. Keith is Dad’s friend. Keith could have got Dad to do stuff to us. The reason why I think Keith might have got Dad to do stuff to us is because he is a real creep. The things that I think Keith could have got Dad to do to us is sexually abuse us. This is what I think could have happened.”

On 14 June Detective Hill took a statement from a girl named Melinda who was a school friend of JLW’s. Melinda told Detective Hill that JLW had complained to her that she had been raped by her brother and father.

On 2 August 1994 Detective Hill conducted a further interview with JLW. On this occasion JLW said she wanted to tell Detective Hill things that she had remembered about her father and brother. She had recorded these things in an exercise book that was titled, “Counselling Joanne and JLW”. Joanne was JLW’s counsellor. JLW told Detective Hill that she had remembered her father making her touch his penis. She said the first time this had occurred was when she was aged about four or five years. In the course of the interview Detective Hill asked JLW what had happened after she had rubbed her father’s penis, JLW responded: “A. I don’t know, well I do know but I can’t remember yet. Q 37. What do you mean by ‘I can’t remember yet’? A. Well, I could remember some things and then when I went to Joanne I told her about them and since then I have been having flashbacks. Q 38. What do you mean by flashbacks? A. Where I remember things more clearly, that I could only sort of remember before, and I told Joanne and she said to write them down and take them into her and we can talk it over.”

JLW said that the last time she remembered her father making her touch his penis was when she was six years old and in Year 1, about a week after her mother’s birthday.

In this statement JLW also described occasions when her father had rubbed her vagina when she was aged five or six years.

In the course of the interview Detective Hill asked JLW if there were other incidents involving her father that she wanted to talk about. JLW responded (A 112): “No, not really. I can remember lots of other times, things happening, but I can’t really remember them clearly.”

On 1 September Detective Hill interviewed another of JLW’s school friends, Kristy. In her statement Kristy attributed to JLW a number of extraordinary allegations, including that JLW had complained that a policeman friend of her father’s had raped her and that she was in fear because this person had contacts and was able to locate her. JLW was also said to have complained to Kristy that a teacher at her former school had raped her and other girls. Kristy also said that JLW complained that her father “feels me and gets vegetables and touches my fanny with them”. She reported that JLW had said that her father had raped her since she was really little. Kristy also said that JLW told her of an incident when she had been locked in her room by her father with her brother and sister. JLW and her brother were told to have sex while their sister watched. Their father had watched through a window. Kristy also said that JLW had told her that her father made her mother stick a pin or needle into her nipple and wipe the blood from it on his nose. Detective Hill agreed that either Kristy or JLW appeared to have been telling wild stories. The complaints made by JLW to friends were made when she was at the primary school that she started attending after the break-up of her family.

On 9 September Detective Hill interviewed JLW about the things that she was said to have told Kristy. JLW denied having told Kristy that her father and mother had made her get a pin or needle and stick it in her nipple or anything similar to that account.

Although JLW claimed not to have made this complaint to Kristy, it was a strikingly odd complaint that Kristy attributed to her. It was very like the things that EW had told the police and later retracted. Among other things this report suggested the real possibility of contamination in the accounts that the children were giving of abuse.

Detective Hill said that the police had endeavoured to avoid contamination between the complainants. The children had been counselled not to talk to one another about their allegations and advice of this kind had been given to the adults with whom they were living. Detective Hill observed that while it had been necessary for the police to make efforts to avoid contamination there were welfare aspects to be taken into account. The investigation had proceeded over a number of months and the children had wanted to see one another. They had been taken away from their parents the avoidance of contamination had to be balanced against the desirability of them having contact with each other.

JLW was interviewed by a DOCS officer on 7 November 1995. On this occasion she said that she did not wish the statements concerning her father to be used because she did not believe that they were true anymore. She was asked why she had said the things contained in her statement and she said, “Cause the things that other people had said made me think that it was true and that it did happen” (Q 39). She said that SW and EW had made statements and “then I started thinking that it was like happened”. She said she had been told that SW and EW had made statements.

In a statement made to the police dated 14 March 1996 JLW retracted the allegations that she had made in her statements. She claimed to have said these things “because people started telling me stuff and getting me thinking it and believing it” (Q 48). She said she was referring to SW, her uncle and aunt, YS and PS, and their children. She did not recall what it was that they had said to her. She was asked if she had felt pressured by the police to make statements and she said that she had.

No charges arising out of the allegations made by the JLW were preferred against any of the plaintiffs. JLW was not called in the plaintiffs’ case. The cousins’ allegations SS’ complaint

On 17 May PS brought his fourteen-year-old son, SS, to Sydney to meet MOD. SS told MOD that he wanted him to know that he had not been sexually abused.

MOD received a telephone call at 9:55pm on the evening of 17 May. He made a record of the contents of the call in his police notebook. The caller was YS, the mother of SS. MOD recorded that she was in a very excited state: SS had said something about LW giving him some children’s wine. SS now wanted to speak to MOD.

On 19 May MOD took a statement from SS. In that statement SS complained of being sexually assaulted by AW after LW had given him a drink that she described as “children’s wine”.

MOD took a further statement from SS on 8 June in which he gave an account of having been incited by AW to commit an act of indecency on EW when he was eleven years old and they were all on a holiday at Murrurundi.

A statement was obtained on 17 August from a Paediatric Registrar at the Camperdown Children’s Hospital. She had seen SS at the hospital on 21 November 1989. He presented with a history of abdominal pain and blood loss from his rectum that had been occurring for a period of twelve months. The blood loss was evident on toilet paper after defecation and was not mixed in with the stool. It was bright and was associated with straining at stool. On examination the doctor observed a large anal skin tag (an outgrowth of skin around the anus). The rest of the examination, which included a number of tests, was within normal limits. Significant bowel disease was excluded. In the doctor’s opinion, the abdominal pain could have been abdominal pain syndrome of childhood, or, taken with the bleeding, could have been caused by constipation. She noted a history of bedwetting and observed that in retrospect the bedwetting and recurrent abdominal pain could have been expressions of excessive anxiety and emotional stress. The rectal bleeding and the anal skin tag may have been due to constipation or secondary to sexual abuse. KS’ complaint

Detective Hill was contacted by YS and told that KS wanted to have a medical examination. One of her sisters, BS, also asked for a medical examination. Both were prepubescent girls. Neither had made any allegation of sexual interference. At the time they made this request, SW and EW had been staying with them in their home. EW had attended for at least one medical examination.

Detective Hill arranged medical examinations for KS and BS. She said she had done this because “they had concerns. Their mother, from memory, had concerns, so they were organised” (T 1592). As far as Detective Hill was able to recall, the results of the examination of KS were normal. In the context of KS’ request for a medical examination Detective Hill had spoken with her and the other girls about protective behaviours. This was before KS had made any allegation of interference by AW.

Detective Hill interviewed KS on 10 June. KS complained of an episode of indecent touching by AW.

It is clear that there was contact between EW, SW and BS and KS prior to KS making any allegation of abuse. Before KS made her allegations EW had given an account to Constable Nicholson of seeing her father abusing KS at Christmas time when KS was visiting the family home.

In the plaintiffs’ submission, the probability that KS’ complaint was the product of contamination was high. She was a relatively young girl, living in a household where the focus of attention was on the police investigation of the sexual abuse of her cousins. Her request for a medical examination at a time when she had made no complaint of abuse was suggested to evidence the degree to which identifying as a victim of abuse had acquired cache in the S household at that time. KS had been counselled about sexual abuse. It was submitted to be unsurprising that finally KS should make an allegation that she too had been abused.

Detective Hill acknowledged that KS’ home was in turmoil at the time she made her complaint and that there were opportunities for the children to have discussed their allegations. In her experience allegations of sexual assault rarely come to light immediately. It is common for disclosures to be made after counselling or after some incident. THE CLAIMS OF THE SECOND PLAINTIFF LW’s claims concerning the events of 19 April 1994 LW’s claim of unlawful arrest

LW was arrested at the family home on the afternoon of Tuesday 19 April. The timing of the arrest was the result of a decision by DOCS to take the children into care on this date.

Detective Yeomans and MOD attended the family home at about 3:00 pm on the afternoon of 19 April. They spoke with JS and were advised that LW was not yet home. They went around the corner where they spoke to officers from DOCS. SW was also present. As they were waiting EW arrived home from school. She saw SW and went up to her. The two girls cried and hugged one another. SW had not been in contact with her family for several weeks. Her unexplained absence had been a cause of concern to her mother. SW and EW left the scene in the company of DOCS officers. Detective Yeomans and MOD waited for LW to return home.

Shortly after 4:00 pm LW arrived. Detective Yeomans and MOD approached her as she was walking towards the front door. There is an issue concerning what was said to LW by the police at the time of her arrest and prior to the commencement of her electronically recorded interview (ERISP). Detective Yeomans recalled that MOD said he wished to speak with her about SW and that SW had expressed concerns about her. In a statement made on 20 April Detective Yeomans said that the exchange had been in these terms: “MOD said to LW, ‘LW’. LW said ‘yes, who are you?’ MOD said, ‘we’re from the police. I’m Detective Sergeant MOD and this is Detective Yeomans’. LW said, ‘yes, what’s wrong?’ MOD said, ‘I want to speak to you about your daughter SW.’ LW said, ‘SW, where is she? What happened to her? I haven’t seen her for weeks, I’ve been worried sick. What’s going on?’ At this point JS approached the group and asked ‘what’s going on, what are you here for?’ LW said, ‘they’re police, there’ve come about SW’. JS said, ‘what about SW. Where is she?’ MOD said to LW, ‘SW is OK. She has made a number of allegations and I want to speak with you at the police station about them’. LW said, ‘when?’ MOD said, ‘I would like you to come with me now’. LW said, ‘which police station are we going to?’ MOD said, ‘to Dee Why’. LW said, ‘alright’, and then she said to JS, ‘Mum, you let AW know when he gets home’”.

The conversation took place at the front of the house, close to the footpath. Detective Yeomans was able to hear everything that was said.

On giving evidence, Detective Yeomans recalled that there was some discussion between MOD and LW in the car on the trip to the police station. MOD informed LW of an allegation of a sexual nature against her relating to SW. He was not able to recall her response. He said that MOD cautioned LW in the car. After refreshing his recollection from the statement made on 20 April, Detective Yeomans said that MOD had said to LW in the car, “I’ve been told that your daughter SW has made a number of allegations. She has told us that you have sexually interfered with her”, and that LW said, “What are you talking about. I’ve done no such thing.” He said that MOD cautioned LW and that she responded by acknowledging that she understood the caution, adding, “There is no way I have interfered with my daughter. I love my kids.”

LW was emphatic that she had not been told that she was alleged to have sexually interfered with her daughter until later at the Dee Why Police Station. She recalled MOD telling her outside the family home, “We’ve got SW at the police station, we want you to come down”. She thought that she had replied by asking, “Why, what’s she done?” (T 178.54 – 56). Around this time her mother came out of the house and told them that EW had not come home. MOD said something to the effect that they had EW as well. LW denied that she had been told the nature of the allegations made against her in the car on the trip to the police station. She said that MOD asked her if she had ever asked AW for a divorce, to which she replied, “Yes”. He also asked, “Has he ever interfered with SW?” to which she replied, “No”. There had been no further discussion in the car.

MOD and Detective Yeomans gave evidence of the conversations with LW in terms that were consistent with their statements made shortly after the events. Detective Yeomans acknowledged that he may have been assisted in compiling his statement by reference to MOD’s notes or statement. The statements that each gave of the discussion outside the family home at the time of LW’s arrest contains no reference to EW. Both LW and JS, in contrast, state that JS came out of the house saying that EW had not come home. Both recalled that the police said something to the effect that EW was also with them. I consider it likely that there was some discussion concerning EW in which JS and LW were told that EW was in safe custody. EW was a schoolgirl aged thirteen. Her older brother and younger sister had come home from school this day in the ordinary way. EW’s failure to come home was notable. It had not happened before. JS said that she was worried. I believed her. The logic of the situation rather favours acceptance of the evidence that in the course of the short discussion between the police and EW’s mother and grandmother some reference to her whereabouts was made.

I am satisfied that LW was not told that she was alleged to have sexually abused her daughter until she was at the police station. LW impressed me as an honest witness. She was recounting events that had occurred around nine and a half years prior to her giving evidence. She acknowledged that her recall of some of the discussion was imperfect. She was confident of her recall of when it was that she first came to understand that she was the subject of allegations of sexual misconduct with her daughter. I am satisfied that her recall in this matter can be relied upon. She was also confident of her recollection of the effect of the conversation in the car. I accept her account.

LW was arrested outside the family home at a little after 4:00 pm on 19 April by MOD. It is not in issue that he did not pronounce formal words of arrest nor did he inform her of the reasons for it. In evidence he said that he considered LW to be in his custody from the time when he spoke with her outside the family home. Her mother was an elderly woman and, as I understood his evidence, he did not wish to cause her any unnecessary distress.

It is LW’s case that her detention was unlawful. In her submission the failure to pronounce words of arrest and inform her of the reason for it made the arrest unlawful.

A separate challenge to the lawfulness of the arrest was the submission that its timing was dictated by the knowledge that DOCS was proposing to take the children into care. This consideration was said to have prompted MOD to arrest LW notwithstanding that he had no statement signed by the complainant alleging the commission of any offence. Allied to this was the contention that MOD arrested her not because he was possessed of a reasonable suspicion that she had committed an offence but as part of a strategy to apply pressure to her with a view to having her provide evidence against AW.

MOD and Detective Yeomans maintained that the decision to arrest LW had been influenced by their knowledge that DOCS were proposing to take the children into care. This is because such events would alert AW and LW to the investigation, creating a risk that they might destroy evidence or flee the jurisdiction.

In cross-examination MOD was asked when he had formed a belief that the circumstances were sufficient to justify the arrest of LW. He said this: “After speaking to SW on 17th I began to entertain thoughts as to whether it would lead to the arrest of LW and then again after speaking to her on 19 April 1994. On that day, whilst I had received information from SW, alleging implication of her mother, at a point in time I have assessed the information at hand and proceeded with the arrest. The evidence I have given is as I recall before the Court is that as at 19th I was desirous of undertaking further enquiries prior to proceeding with any action. However, due to the proposed action by DOCS, I then proceeded to arrest her on that day. As to the specific point in time, I could not with any degree of accuracy indicate to this Court at what point I arrived at that other than assessing, the fact that I had been provided with information implicating LW. I had assessed that as being of substance and as at 19th, I was of the belief that I had sufficient to warrant an arrest of LW. Notwithstanding my action on that date, was somewhat precipitated due to the actions to be undertaken by DOCS” (T 1998.31 – 50).

The defendant relies upon the provisions of s 352 of the Crimes Act . In 1994 s 352 was in these terms: 352(1) Any constable or other person may without warrant apprehend, (a) any person in the act of committing, or immediately after having committed, an offence punishable, whether by indictment, or on summary conviction, under any Act, (b) any person who has committed a felony for which he has not been tried, and take him, and any property found upon him, before an authorised Justice to be dealt with according to law. (2) Any constable may without warrant apprehend, (a) any person whom he, with reasonable cause, suspects of having committed any such offence or crime, (b) any person lying, or loitering, in any highway, yard, or other place during the night, whom he, with reasonable cause, suspects of being about to commit any felony, and take him, and any property found upon him, before an authorised Justice to be dealt with according to law. (3) Any constable may, although the warrant is not at the time in his possession, apprehend any person for whose apprehension for a misdemeanour, or an offence punishable as a misdemeanour, a warrant has been issued, and take him, and any property found upon him, before an authorised Justice to be dealt with according to law. (4) Any constable may, although the warrant is not at the time in his possession, apprehend any person for whose apprehension on any ground other than a charge of felony or misdemeanour or offence punishable as a misdemeanour a warrant has been lawfully issued, provided the issue of such warrant has been certified by telegraph by the Commissioner of Police or by the Justice who has signed such warrant. (5) In this section: ‘Authorised Justice’ means: (a) a Magistrate; or (b) a Justice employed in the Department of Courts Administration; ‘Telegraph’ includes telephone, radio, telex, facsimile transmission, computer used to relay information and any other communication device.

It is for the defendant to establish that the detention of LW was lawful.

LW was not informed either of the fact that she was under arrest nor of the reason for it. The principles governing a lawful arrest by a police officer without warrant upon reasonable suspicion were considered by the Court of Appeal in Adams v Kennedy [2000] NSWCA 152. Priestley JA (with whose judgment the other members of the Court concurred) held at [26] that the common law stated in Christie v Leachinsky [1947] AC 573 is applicable in New South Wales. His Honour referred to the principles enunciated by Lord Simon in that case at 587: “The above citations, and others which are referred to by my noble and learned friend, Lord Du Parcq, seem to me to establish the following propositions. (1) If a policeman arrests without warrant upon reasonable suspicion of felony, or of other crime of a sort which does not require a warrant, he must in ordinary circumstances inform the person arrested of the true ground of arrest. He is not entitled to keep the reason to himself or to give a reason which is not the true reason. In other words a citizen is entitled to know on what charge or on suspicion of what crime he is seized. (2) If the citizen is not so informed but is nevertheless seized, the policeman, apart from certain exceptions, is liable for false imprisonment. (3) The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. (4) The requirement that he should be so informed does not mean that technical or precise language need be used. The matter is a matter of substance, and turns on the elementary proposition that in this country a person is, prima facie, entitled to his freedom and is only required to submit to restraints on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed. (5) The person arrested cannot complain that he has not been supplied with the above information as and when he should be, if he himself produces the situation which makes it practically impossible to inform him, for example, by immediate counter-attack or by running away. There may well be other exceptions to the general rule in addition to those I have indicated, and the above propositions are not intended to constitute a formal or complete code, but to indicate the general principles of our law on a very important matter.”

The defendant sought to bring itself within the third of the propositions stated by Lord Simon. It contended that LW had been given some information as to the basis of her arrest when she was first spoken to by MOD in the presence of Detective Yeomans in the front garden of the family home. In written submissions it was argued that MOD’s statement that, “SW has made a number of allegations and I want to speak with you at the police station about them” gave rise to the clear inference that allegations of child abuse had been made (WS at [82]). I do not accept this is so. Even if it were the inference to be drawn it would not satisfy the requirement that LW be informed of the true ground of her arrest. MOD and Detective Yeomans’ evidence was that LW was arrested on the suspicion that she had committed sexual offences against her daughter, SW. Nothing said to her at the time of her arrest conveyed that fact to her.

In the defendant’s submission it is necessary to apply the principles enunciated in Christie flexibly and with common sense. The presence of LW’s mother at the scene of the arrest made it inappropriate to reveal the true reason for the arrest at that time. According to MOD and Detective Yeomans, once LW was in the police car she was informed that she was the subject of allegations by SW of sexual interference made by SW. The defendant submitted that the requirements of Christie had been complied with in substance and that the police should not be required to give details of the reason for arrest where, as in this case, there is a justifiable reason not to and the details are supplied reasonably promptly thereafter.

I do not find that LW was told the reason for her arrest in the police car. Even were I to accept the account offered by MOD and Detective Yeomans, I would nonetheless reject the defendant’s submission. As Viscount Simon observed in Christie (at 588), there are practical considerations informing the requirement that a police officer inform a person who is arrested of the true ground for the arrest. It affords the person arrested the opportunity of giving an explanation. As Lord Du Parcq explained, the right to arrest and the duty to submit are correlative. If a person has a lawful reason for depriving another of his liberty that person must tell the reason since the person arrested cannot be expected to submit to arrest or blamed for resistance in the absence of knowledge of the reason (at 598).

LW submitted that her arrest was in any event illegal in that MOD did not have a reasonable suspicion that she had committed an offence at the time he arrested her.

Detective Yeomans was not present at any time on 19 April when it is said that SW made allegations of sexual misconduct involving her mother. Detective Yeomans was not able to recall anything about what was said to have been conveyed by SW to MOD in any discussion before the arrest of LW. It was Detective Yeomans’ evidence that before he went out to the family home with MOD on 19 April he had been told by MOD that LW was to be arrested and charged.

MOD gave evidence that he suspected LW of having committed sexual offences on SW and of his grounds for that suspicion. The only material available to MOD to provide grounds for suspicion were the things SW had said to him on 17 and 19 April. There was no independent evidence that LW had committed any such offence. SW’s allegations relating to LW were inconsistent with the allegations she had made in a formal statement on an occasion when the necessity for telling the truth had been drawn to her attention. MOD had not taken a formal statement from SW setting out the details of the allegations that she was now making about LW.

As noted above, it was the defendant’s submission that once DOCS made the decision to take the children into care there had been urgency in ensuring that AW and LW did not escape justice or destroy evidence. This was said to have justified the arrest of LW notwithstanding the absence of a statement signed by the complainant particularising any allegation of any criminal offending.

This claim seems to me to be without merit. Either MOD had reasonable cause to suspect LW of having committed an offence or he did not. I do not accept that the circumstances were viewed as exigent. It was open to MOD to obtain a search warrant and to execute it at or prior to the time when DOCS removed the children. I do not accept that MOD had fears that LW might flee the jurisdiction. The prime focus of the investigation as at 19 April was AW, since SW had provided a detailed statement making a number of allegations of sexual abuse against him. No efforts were made to arrest AW at his place of employment. The children were taken into care in the course of the afternoon of 19 April. Police did not wait at the family home in order to arrest AW. AW was left to return to the family home in the usual course and, presumably, to learn that his children had been taken into care and that his wife had left in the company of the police.

I consider that LW’s arrest was unlawful in that she was not told the reason for it. In the absence of a signed statement from SW particularising one or more offences which she claimed her mother had committed, I am not satisfied that MOD had reasonable cause to suspect that LW had committed any offence. The interview of LW at the police station

LW said that she was taken to an interview room at the police station and that she was left with Detective Yeomans for a time. During this time she recalled that he said, “You’ve lost your kids, you’re going to lose your house now. We know all about you. Confess and we’ll make it easy for you.” Detective Yeomans then left her alone in the interview room for a time. Subsequently she participated in an ERISP with MOD and Detective Yeomans.

Detective Yeomans denied that he had pressured LW to confess in the way she described. LW’s recollection of the conversation in the interview room was not distinct. I accepted LW as a truthful witness. Her recall of the conversation in the interview before the ERISP was imperfect. I am not satisfied that Detective Yeomans said words to this effect to LW.

MOD said that before the ERISP he told LW that he needed to attend to a couple of matters and that following that, Detective Yeomans and he would interview her about the allegations that SW had made. LW asked how she was supposed to have interfered with her daughter, to which MOD responded that SW had alleged that she had inserted her fingers into SW’s vagina. LW said, “That’s rubbish, I wouldn’t do that to my daughter”. MOD said that he went on to tell her that SW had also alleged that she had made her do sexual things to her (LW) to which LW replied, “Well if she said that then she’s making it up”. LW accepted that a conversation of this character may have occurred at the police station prior to the ERISP.

The ERISP was commenced at 5:56 pm. The allegations contained in the notes recorded by MOD during his interview with SW on the afternoon of 19 April were put to LW. She denied any form of wrong conduct involving herself or her husband. The charges preferred against LW: the claim of malicious prosecution

At 9:19 pm on 19 April LW was charged with two offences of sexual intercourse with SW without consent in circumstances of aggravation contrary to s 61J(1) of the Crimes Act (OLC 5159/1 and OLC 5159/2). Each particularised an offence occurring at Beacon Hill between 31 July 1993 and 5 September 1993.

In the Cruickshank statement SW had given an account that she had lived in a garden flat at Mona Vale with Michael for the first half of 1993. She moved back home for about one month in August before she and Michael moved into a shared household in Manly Vale. The date of the latter move was 5 September 1993. The period particularised in the two charges refers to the time when SW had resumed living at the family home.

Detective Yeomans prepared the statement of facts with respect to the two charges. He recorded the following particulars of the offences: “The offender has four children, SW 18 old, JW 15 old, EW 13 old and JLW 11 old. SW left home in January 1992. She returned home for about a one-month period at the end of July 1993 until early September, 1993. During this period when she was home it is alleged by SW that the mother had digital and oral intercourse with her. A number of further allegations have been made by SW relating to her mother. Further enquiries are being made relating to these matters with possible further charges being laid.”

No allegation in the Cruickshank statement nor in the annotations to the Cruickshank statement contained any account of an act of sexual intercourse committed by LW on SW at Beacon Hill in the period 31 July to 5 September 1993. No such allegation was recorded in the notes made by MOD of his discussions with SW on 19 April. In the course of the ERISP MOD did not put any such allegation to LW.

There was no evidence whatsoever that either offence had been committed.

MOD said that the decision to charge LW had been made at the conclusion of the ERISP and after he had spoken to EW and learned from the DOCS officers that she had disclosed digital interference by her father. That EW’s disclosures should have been taken into account in MOD’s decision to charge LW is difficult to understand. EW made no allegation that her mother had sexually abused her, SW, or any other person.

I did not accept MOD’s evidence that he had not make the decision to charge LW until after the completion of the ERISP. The notes taken by MOD of his interview with SW, commenced at 1:45 pm on 19 April, record that she asked him, “Are you going to charge Mum?” to which he replied, “I intend to”. In cross-examination MOD maintained that he had said that to SW at a time when he had no fixed intention in this respect. He did not wish to give her the impression that her allegations were not believed. MOD maintained that the answer given to SW had not been an untruthful one, but that he had not made a decision to charge LW until a later point in time. In this respect he said that had LW chosen not to say anything at all at interview he would still have assessed what he had before him prior to proceeding with a charge. I do not accept that to have been the case.

MOD maintained that LW’s demeanour during the interview and her lack of emotional response to the allegations was a factor that he took into account in determining to charge her. The video recording of the ERISP was not in evidence. The audio recording is exhibit 35. MOD, Detective Yeomans and Detective Burns (who said that he observed parts of the interview) were all of the opinion that LW had not shown emotion during the interview. The exhibit speaks for itself. At the conclusion of the interview it is to my mind apparent that LW was in a state of some distress.

MOD’s account of his state of belief at the time he spoke with LW in the police station and thereafter at best indicates a view that she was in some way involved in the sexual abuse of her daughter. When asked in evidence in chief about any suspicion that he had concerning LW’s commission of offences at the time he brought her to the police station, he said (T 1724.41 – 58): “A. I had suspicions that LW was implicated to some degree in alleged offences committed upon SW. I formed that point of view based on the statement taken by Cruickshank, my conversation with Doug Keir, my interview and observations of SW on 17 April 1994 at Woy Woy Police Station, the phone conversation and subsequent interview with SW on 19 April 1994 and the view that I had formed during the interview process with LW.” MOD said this (at T 1725.38 – 40): “I had formed a view that there was an element of truth in what SW had alleged, I’d also formed a view sufficient to warrant the charging at that time of LW.” After the ERISP, MOD claimed that he was of the belief that LW (at T 1729.5 – 7): “had certainly to some degree been involved in offences committed against her daughter SW.”

A belief that LW was involved to some degree in the sexual abuse of her daughter, while plainly relevant to the response of an agency such as DOCS to the need to intervene to protect the children from the risk of abuse, was an insufficient basis to prefer charges against LW alleging the commission of offences contrary to s 61D. MOD was an experienced detective and I am satisfied that he well knew that.

I am satisfied that MOD was not possessed of a belief in LW’s likely guilt of the two offences such that he considered her prosecution upon general grounds of justice was warranted. Objectively there was an absence of reasonable and probable cause in that a person of ordinary prudence and judgment in possession of the material of which MOD was aware would not have concluded that LW’s prosecution for these offences was warranted. I turn to the question of whether MOD’s decision to prefer the two charges against her has been shown to have been malicious.

MOD maintained that there must have been some material of which he was aware that provided the foundation for the charges: “I believe I would have been in receipt of some information on which to formulate those two charges. My memory does not serve me as to exact information at this point in time, in which those charges were based” (T 2014. 23 – 26). His notes of his telephone conversation with SW on the morning of 19 April and later that day at the police station were detailed. Her allegations of maternal sexual abuse were unparticularised. Had she made a complaint of interference in mid 1993 when she was again living in the family home it is to be expected that MOD would have recorded it.

MOD’s duty book entry for 19 April records that he “conferred with Detective Yeomans re nature of the charges”. He said that they had discussed what had been stated during the course of the interview and that ultimately he had decided to proceed to charge LW with charges stemming from the two most recent allegations that had been made. Detective Yeomans had not been privy to the disclosures that SW made to MOD on 19 April. He typed out the statement of facts. He must have done so on the basis of things he was told by MOD.

The statement of facts contained a clear assertion that both digital and oral intercourse had taken place in the period 31 July – 5 September 1993 when SW was residing in the family home. SW had not given any such account. When MOD came to apply his mind to what, if any, charges were to be preferred against LW arising out of the disclosures made by SW, it is unlikely in the extreme that he mistakenly took her unparticularised allegations as including two distinct offences within this defined interval.

The decision to arrest LW for the claimed reason that the circumstances were exigent without a signed statement from SW identifying any offence said to have been committed by LW lends support to the plaintiffs’ contention that the strategy was to arrest her in the hope that she would cooperate with the police investigation. When she maintained denials of any wrong conduct by herself or her husband, MOD determined to charge her with two offences notwithstanding that he had no evidence of their commission. While MOD may have been of the belief that LW was probably involved in the sexual abuse of her daughter, at the time he was required to particularise the charges and to tell Detective Yeomans what to put in the statement of facts, he must have realised that he did not know. He proceeded nonetheless. Whatever his motive it seems to me that it must have been other than his desire to discharge his duty to the public by setting the criminal law in motion against LW for these offences. The statement of facts was made up. SW had not claimed that her mother had digitally penetrated her or had oral intercourse with her in the month long period when she was living at the family home in 1993. I am satisfied that MOD acted with malice. Conclusion: LW’s claims regarding the events of 19 April

I am satisfied that LW was detained on 19 April from around 4:15pm until her release on bail at around 11:00pm that night and that there was no lawful justification for it.

I am also satisfied that the instigation of the prosecution against LW of the two offences charged on 19 April was malicious.

The original of the charge sheets recording OLC 5159/1 and 5159/2 are not included in exhibit C. The defendant’s copy of these charge sheets is included in exhibit F. It is not known what happened to the original charge sheets. The parties were agreed that these two charges had been withdrawn on a date prior to the commencement of the committal proceedings. It is not clear when that occurred (T 2624.55). It is likely that they were not withdrawn before 23 June.

LW is entitled to a verdict and an award of damages on her cause of action in false imprisonment. She is entitled to a verdict on her cause of action for malicious prosecution for the institution of the prosecution of the two charges against her on 19 April and the maintenance of the prosecution of these charges until 23 June 1994. THE CHARGES OF 23 JUNE 1994

I turn now to the case that AW and LW bring with respect to the charges preferred against them on 23 June 1994. It is necessary to consider the issues of absence of reasonable and probable cause and malice by reference to the material that was known to MOD at that date. I propose to set out each of the charges that were preferred against LW and AW at the Manly Local Court on that date noting the evidence relied on in support of them. The charges preferred against LW on 23 June 1994

LW was charged with seventeen offences on 23 June in court: seven charged her with sexual offences committed against her daughter, SW; five charged sexual offences committed against her daughter, EW; and five charged sexual offences committed against her son, JW. MOD was the informant in each case. For the reasons earlier given, I am satisfied that MOD instigated her prosecution in respect of each of these charges. The 23 June charges against LW arising out of SW’s allegations LW - digital penetration when SW was six or seven (OLC 5159/3)

The first of the charges preferred against LW on 23 June was of carnal knowledge of SW, a girl then under the age of ten years (six to seven years) (OLC 5159/3). The offence was particularised as having occurred between 5 February 1982 and 4 February 1984 at Beacon Hill. It was an offence provided in s 67 of the Crimes Act (as it then stood). A charge in identical terms was preferred against AW on 23 June (OLC 5160/5).

The charge of carnal knowledge was not proceeded with against LW or AW. On 28 March 1996 at the committal hearing OLC 5159/3 was withdrawn and a charge under s 61D(1), of sexual intercourse without consent with SW, she being under the age of sixteen years (between the ages of six and seven years) was substituted for it. Similarly, OLC 5160/5 charging AW with carnal knowledge of SW was withdrawn and a charge under s 61D(1) was preferred against him in court on the same date.

The charge (OLC 5159/3) as initially drafted pleaded the offence as occurring between 5 February 1982 and 4 February 1984. It was subsequently amended to particularise the twelve-month period from 5 February 1982. This has some significance in relation to the drafting of a similar count against JS. Otherwise nothing turns upon it. This offence is the first in point of time charged against LW.

The evidence relied upon in support of the charge is in SW’s second statement at paragraph [20]. It was an unparticularised allegation that from around the time AW first assaulted her by putting his finger into her vagina, LW had assaulted her in the same way. Sometimes she was assaulted by both of them at the same time. Her father assaulted her either of a morning or at night. Her mother tended to assault her at night. This started when she was aged six or seven years.

As at 23 June MOD was aware of the terms of SW’s complaint to Douglas Keir. The allegations that she made during the course of her counselling sessions with him were inconsistent with the allegations that she was later to make to the police. SW told Douglas Keir that the sexual abuse dated back to when she was aged nine to eleven years. It was her initial account to him that her mother had no knowledge of the abuse.

In the Cruickshank statement SW said (paragraph [132]): “I have never told Mum what Dad has done to me because even up today I believe that she will try to kill herself when she finds out what has been happening. I don’t want anything to happen to her even after all what she has done to me over the years.”

SW’s versions of the commencement of the abuse differed markedly between the Cruickshank statement and the second statement. In both she dated the abuse to an incident shortly after the death of her grandfather when she was aged five years. In the Cruickshank statement she claimed that her father had drowned her pet guinea pigs in a bucket of water as a threat to ensure that she did not report his misconduct to her mother (paragraphs [5] – [9]). In the second statement she referred to the same incident but now said that her mother was present, holding onto her and forcing her to watch as the guinea pigs were drowned. On this version LW taunted her, threatening to do the same thing to her pet Maltese Terrier (paragraph [12]).

There are other shifts in the account of the facts giving rise to the first charge between the Cruickshank statement and that given in the second statement. The first account of penetrative abuse is described in the Cruickshank statement at paragraphs [15] - [19]: SW was sitting on the toilet at night when her father came into the bathroom and put his fingers inside her vagina. Her mother was asleep in a lounge chair at the time. SW was aged about six or seven years. The assault caused her pain, but she had been too frightened to scream. She told Detective Cruickshank that, “Mum would remember when this happened because after this I was really frightened to go to the toilet” (at [19]).

In the second statement SW adhered to the account that the first incident of penetrative sexual abuse occurred when she was aged about six or seven years and involved an incident in which she had been digitally assaulted by her father when she was on the toilet (paragraphs [16] - [18]). She said that her mother had come into her room, got her out of bed and taken her to the toilet, instructing her to remain there until she returned. She now claimed that her mother had come into the bathroom while her father was digitally assaulting her and that after he finished she had given her some syrup to drink.

In the Cruickshank statement SW said that after the first episode of digital penetration her father carried her back to her bedroom and put her to bed. She was crying and he said, “If you don’t stop crying I will give you something to cry about” (paragraph [18]). In the second statement she said that after her mother gave her the syrup to drink she took her to the bedroom. It was her mother who said, “If you don’t stop crying I will give you something to cry about” (paragraph [18]). LW - the assault on SW’s ninth birthday (OLC 5159/4)

The second charge was a further count under s 67 that LW had carnal knowledge of SW, a girl under the age of ten years (nine years) (OLC 5159/4). This offence was particularised as occurring on 5 February 1985 at Beacon Hill. On 28 March 1996 at the committal hearing this charge was withdrawn and replaced by a charge brought under s 61D(1) of sexual intercourse with SW without consent, she being under the age of sixteen years (nine years). This charge related to an incident said to have occurred to SW on her ninth birthday. LW was the only person charged with any offence said to have occurred on SW’s ninth birthday.

The evidence available to MOD at the time he preferred this charge against LW is based on SW’s account in the second statement at paragraphs [40] and [41]: “[40] Another time I remember it was on my ninth birthday. Dad wasn’t home so it may have been a Thursday night because Dad goes to the hotel on Thursday nights, but I’m not sure if he used to go to the hotel on Thursday nights back then. Mum had taken me into her bedroom with her and turned the light out which made me scared because I don’t like the dark. There was some light coming in through the window from a light outside and Mum put something over my eyes and I remember feeling terrified. [41] I then heard a noise which I can’t really describe and I felt something hard and cold being pushed into my vagina. It was sort of vibrating inside me and Mum pushed it right up inside me. It really hurt and when I made a noise because of the pain, Mum would push it further up against the inside of my vagina. Later Mum took away what was covering my eyes and, I don’t recall much of what happened after that, but I do remember that I woke up in Mum’s bed the next day.”

In the Cruickshank statement SW had given a different account of the events of her ninth birthday (paragraphs [27] – [31]). She claimed that on that day her father had called her into the bathroom and forced her to fellate him. She had vomited into the bath. On the account given to Detective Cruickshank this was the first time she had been assaulted in this way.

There was a further shift between the accounts in the Cruickshank statement and the second statement which is significant to the credibility of SW’s evidence of the assault on her ninth birthday. In the Cruickshank statement SW described a conversation with her father that occurred on JLW’s eleventh birthday. By this time SW was living with her boyfriend, Michael. She and Michael had called to the family home to celebrate JLW’s birthday. SW said that she had spoken with her father in the kitchen and that he had asked, “Do you remember your ninth birthday?” She said that she had lied and replied, “No” to which he had responded, “It’s a shame because it was a good one” (paragraph [9]).

The account given by SW in her second statement of the conversation that took place in the kitchen on the evening of JLW’s eleventh birthday accommodates the change in the allegations that she had come to make about the assault on her ninth birthday. She again described speaking to her father in the kitchen. On this occasion she said that he asked her questions “about my birthdays and he also asked me which one was my favourite but I didn’t answer him” (paragraph [100]). The assertion that AW had made a pointed reference to SW’s ninth birthday in his discussion with her in December 1993 (JLW’s ninth birthday) no longer fitted with the version SW was giving, which now identified LW rather than AW as the perpetrator of the assault on that day. LW - the assault on the day when SW was caught smoking (OLC 5159/5)

The next charge was a further count of carnal knowledge of SW, a girl under the age of ten years (nine years) (OLC 5159/5). This charge was particularised as taking place between 1 March and 31 May 1985 at Beacon Hill. On 28 March 1996 this charge was withdrawn and a charge under s 61D(1) was substituted for it (OLC 5159/25). The new charge alleged that LW had sexual intercourse with SW without her consent, she being under the age of sixteen years (nine years). The same dates were particularised. A charge in like terms was preferred against AW arising out of the same incident.

The allegations that give rise to this charge involve an incident that occurred a couple of months after SW’s ninth birthday. She had been caught smoking outside the family home with her friend, Rebecca. Her account of this incident in the Cruickshank statement is found at paragraphs [33] – [38]. She said she and Rebecca were around at the side of the house smoking cigarettes. Her father caught them and sent them inside, where they got a big lecture from LW. That night when she went into the bathroom her father pushed her onto the floor between the sink and the bath. She was lying on her back. He pulled a towel tightly across her mouth and had penile/vaginal sexual intercourse with her. This was the first time she had had sexual intercourse. Her father said to her, “If you are old enough to learn how to smoke then you are old enough to learn how to do this” (paragraph [38]).

SW’s account in the second statement of the incident that occurred on the day when she and Rebecca were caught smoking differed in a number of respects. In the Cruickshank statement she had said that she had got hold of some of her grandmother’s cigarettes. She now said that her mother had been supplying her with cigarettes since her ninth birthday and had instructed her to smoke because she was putting on weight. In the second statement, she claimed that after being admonished over smoking her mother and her father had taken her into the master bedroom and started undressing her and kissing her. She was on the bed and her father was lying on one side of her and her mother was lying on the other side. They both digitally penetrated her at the same time. Her father then had penile/vaginal intercourse with her while her mother put a vibrating object into her anus. After this had been going on for a time they turned her around and AW had anal intercourse with her. SW had been kept in her parents’ bed over night and throughout the night they molested her (paragraphs [43] - [44]). LW - the assault on the day of SW’s first period (OLC 5159/6)

The next charge was a count of sexual intercourse with SW, a person above the age of ten years and under the age of sixteen years (eleven to twelve years) being under the authority of LW (OLC 5159/6). It was particularised as occurring at Beacon Hill between 1 January and 1 May 1988. It was a charge brought under s 66C(2) of the Crimes Act . It mirrors OLC 5160/11 preferred against AW. The allegation that gives rise to this charge relates to SW’s first menstrual period.

In the Cruickshank statement this incident is described in paragraphs [46] – [51]. SW there gave an account that when she was aged twelve she was at home, sick, on the day of her first period. It was during first term after a school camp to the Basin. AW had the day off work. No one else was at home; her mother and grandmother were out shopping. AW came into the bedroom and digitally penetrated her. He wiped menstrual blood across her face saying, “that was disgusting”. Then he punched her hard to the stomach a number of times. The incident came to an end when she heard the sound of a car pulling in. AW left the room. Her mother came in later. SW was crying but did not tell her what had happened.

The account of the assault on the day of her first period in the second statement also identified an incident that took place when she was twelve years old during first term after a school camp at the Basin. She was in pain and at home in bed. Her father came in and had penile/vaginal intercourse with her. Then he put his penis in her mouth and she vomited. He called out to her mother who came in and held a piece of cloth to her face. After this SW had no recall of anything until she woke in the afternoon with LW telling her to have a shower. After the shower she changed the sheets and cleaned up the vomitus. She was not able to remember how, but she ended up lying sideways across her parents’ bed. She said, “I knew I was awake but I had this sort of dreamy feeling that I really can’t explain” (paragraph [55]). She went on to say that her father had held her legs apart while her mother bent down between her legs. She felt pin pricks around her vagina. Her mother digitally penetrated her. She felt a numb feeling around the vagina. Then her father had penile/vaginal intercourse with her (paragraph [56]). LW - the assault after the excursion to Bathurst (OLC 5159/7)

The next charge alleged that LW had sexual intercourse with SW, a person above the age of ten years and under the age of sixteen years (fourteen years) being a person under the authority of LW (OLC 5159/7). This was an offence under s 66C(2) of the Crimes Act. It was particularised as occurring at Beacon Hill between 1 June and 31 August 1990. No charge was preferred against AW arising out of this incident.

The evidence in support of this charge is contained in paragraph [65] of the second statement. The incident can be identified by reference to an occasion when SW went on a school excursion to Bathurst. She was in Year 9 at school and aged fourteen years. The excursion took place in winter on an occasion before the family holiday in Forster, which occurred each year around September/October. It was while she was away on this excursion that SW met her first boyfriend, Richard. Later her parents had accused her of having sex with Richard. Her father hit her with a belt. The assault made her weak. Her mother helped her to her bedroom and assisted her to take her jeans off. She then digitally penetrated her. She had not previously assaulted her in such a rough manner.

In the Cruickshank statement SW described the Bathurst school excursion and meeting Richard. She gave a similar account about being questioned by her parents about whether she had sex with Richard. She said that her father had hit her across her back and backside with a leather belt. Her mother helped her to her bedroom and put her to bed, telling her that she should not have egged her father on. LW - the Mona Vale assault (OLC 5159/8)

The next charge was of sexual intercourse with SW, without the consent of SW, in circumstances of aggravation (OLC 5159/8). This is an offence under s 61J(1) of the Crimes Act. It was particularised as having occurred at Mona Vale between 27 January and 31 July 1993. No charge was preferred against AW arising out of the incident that is the subject of this charge.

In the Cruickshank statement SW gave an account that she and her boyfriend, Michael, moved into a garden flat in Mona Vale in January 1993. She did not claim that either of her parents had called to the Mona Vale flat. She made no allegations of any form of abuse during the six months that she lived with Michael in Mona Vale.

One of the allegations that MOD recorded SW as making during his telephone conversation with her on the morning of 19 April was as follows: “Once I was living at Mona Vale M called up with D. They took turns and whoever was watching would hold my dog Tammy where I could see her. They had a hand inside her collar and if I didn’t let them – (sobbing!) they were going to drop her and hold onto her collar to choke her.”

In the second statement SW said that her parents had called to see her at the Mona Vale flat from time to time when Michael was at work. At some point she quit her job and her parents started to call to the Mona Vale flat more often. On these occasions both had sex with her. On other occasions either her mother or her father would turn up alone and have sex with her.

SW described one incident that took place while she was living in Mona Vale. This was an occasion when LW came to the flat with her mother, JS, and the three younger children. JS and the two younger girls stayed in the lounge room watching television while SW, her mother and brother went into the bedroom. LW said that she wanted to show JW a few things. She removed SW’s pants and put her fingers inside her vagina, instructing JW to look at what she was doing. Then she licked SW’s vagina. She said something to JW who then put his fingers insider her vagina. He too licked her vagina. LW then told JW to stop and she took hold of his penis and started to fellate him. As she was doing this she was running her hand around his testicles. The incident came to a conclusion when JS called out that it was time to go. Shortly after this the family left.

Ultimately SW was to give another even more extreme version of this incident at the flat in Mona Vale. I will return to this in dealing with the charges preferred against JS.

It is to be observed that this incident was not said to have occurred in the distant past. Within months of this assault SW had commenced counselling with Douglas Keir. She made no allegation of this character in her account to him. Detective Cruickshank had taken her through the milestones of her life from the time of her grandfather’s funeral. Her attention had been directed to the six months when she lived in Mona Vale and her account in the Cruickshank statement was as I have set out.

JW had volunteered that he had engaged in inappropriate sexual contact with his younger sisters. He gave no account of an incident such as that described above by SW in the second statement. LW - Manly Vale ASSAULT (OLC 5159/8)

The next charge was a count of sexual intercourse with SW, without her consent, in circumstances of aggravation (OLC 5159/9). The offence was charged under s 61J(1) of the Crimes Act . It was particularised as occurring at Manly Vale on 18 March 1994. A parallel charge was preferred against AW at court on the same date. At the date of this offence SW was aged eighteen years. The circumstance of aggravation relied upon would appear to be that the offence was committed in company.

The offence charged in this count was alleged to have occurred one month prior to the arrest of AW and LW. SW made a complaint to Douglas Keir on Monday 21 March of having been sexually assaulted on 18 March. She complained that her father had called to her home and raped her. The account of this incident is set out in the Cruickshank statement at paragraphs [105] – [109].

The annotations to the Cruickshank statement include an assertion that LW had procured SW’s consent to her father’s sexual abuse of her by threatening to bait her dog’s food with fish-hooks. It is apparent that at SW’s initial interview with MOD she was willing to make quite extreme allegations of abuse by her mother. The annotations suggest that during that interview MOD directed her attention to the account of the rape on 18 March, and that she made no allegation that her mother was involved in the offence, and no reference to the startling account of abuse she was to give in the second statement.

In the second statement SW said that on 17 March her parents told her that they would be coming to see her the next night and they instructed her to be at home. They arrived at around 6:30 pm on Friday 18 March. Shortly after this Michael went out. She was then taken to the bedroom. Her account of the episode continues: “[120] They spread a plastic sheet down on the floor and made me get undressed. Dad and Mum got undressed and I had to lie down on my back with my legs apart and my knees bent. Mum put her fingers into my vagina, but I wasn’t bleeding heavily enough. Dad then punched me in the stomach several times and then Mum would check to see if there was enough blood in my vagina from my periods. Dad then kept punching me many times until I started bleeding more heavily. [121] Mum then used her fingers and pushed them hard inside my vagina. After a while, she used this penis shaped dildo thing and pushed that inside my vagina. Dad had me held down by my shoulders while Mum was doing this to me. After Mum had been using the dildo thing on me she took it out and licked the blood off it. She then forced her hand up into my vagina and when she pulled it out she licked the blood off her hand. Mum put her hand back inside my vagina a number of times and each time she would lick the blood off her hand. Dad also licked the blood off the dildo thing and off Mum’s hand. [122] Dad then had sex with me by putting his penis into my vagina. When Dad finished, Mum licked the blood off his penis. Mum then put her face down between my legs and started licking the blood around my vagina. When Mum had finished, her and Dad cleaned up and then left the house. [123] What happened that night wasn’t the first time it had been done to me. It was done whenever I had my periods, and was usually done on the lounge room floor at home. Whoever was in the room at the time then had to lick the blood. I had also been made to lick the blood whenever my mother had her periods. [124] The following Monday, I saw Doug but I couldn’t bring myself to tell him everything that had happened to me. I only told him that Dad had called around and had sex with me. [125] As a result of my counselling sessions with Doug, I decided to go to the police and report my father. At that stage, I didn’t think I could face up to reporting what Mum had been doing to me. I was worried that if I told the police about Mum, then my brother and sisters wouldn’t be looked after and I didn’t want to get them involved because I was scared.” The charges preferred against LW arising out of EW’s allegations LW - sexual intercourse with EW between 17 March and 31 Dec 1991 (OLC 5159/10)

The first charge preferred against LW on 23 June 1994 arising out of the allegations made by her daughter, EW, was of sexual intercourse with EW, without consent, in circumstances of aggravation (OLC 5159/10). The offence was charged under s 61J(1) of the Crimes Act . It was particularised as occurring at Beacon Hill between 17 March and 31 December 1991. EW was born in October 1980. The charge covered the period from when she was aged ten to shortly after her eleventh birthday.

This charge arises out of material contained in paragraph [6] of a statement made by EW on 16 May 1994. She set out in that paragraph her recollection of the first time that she claimed to have been digitally penetrated by her mother. She thought it had occurred some time during 1991, when she was in Year 5, because she was able to recall incidents of this kind happening all the time when she was in Year 6. LW - sexual intercourse with EW between 1 and 31 Nov 1992 (OLC 5159/11)

The next charge arising out of the allegations made by EW was of sexual intercourse with EW without consent in circumstances of aggravation (OLC 5159/11). The offence was charged under s 61J(1) of the Crimes Act . It was particularised as having occurred at Beacon Hill between 1 and 30 November 1992.

The allegation supporting this charge was of an assault just after EW’s twelfth birthday when she got her first period. She touched on this allegation in her statement dated 16 May 1994. On that occasion she said: “One of the worst things that Mum used to do to me was when I got my period. The first time I got them in November 1992 she did not touch me but announced it in front of all the family . I was really embarrassed. After the first period Mum would find out when I had my periods. She would then lick me and touch me and lick the blood of her fingers and put her vibrator inside of me” (emphasis added).

In contrast, the version given by EW in her statement of 10 June was as follows: “I was in my room and Dad came into my room and dragged me out by grabbing my hand and pulled me into the lounge room. They did what they normally did when I got my periods. Mum was in the lounge room and used both her hands to pull me down onto the floor. JW was holding me down putting his hands on my shoulders and everyone else was standing around the room watching. Mum took my pants and undies off and my top. I was screaming and crying. She started putting more than one finger in and out of my vagina and pulling it out. She then looked at me and licked the blood. She then started licking at my vagina. At this point I was trying to get away. Dad came in with the vibrator and put it in and out of my vagina. Mum had moved to the side. He then smeared it across my face and chest, blood was all over me. He then put it back inside my vagina and put it in my mouth he said, ‘lick it girl’. I did, it tasted yuck. JLW was laughing, JW was holding me down on the top of my arms and everyone else was watching. Then when Mum and Dad was finished they all had to lick my vagina after Mum told them to. JS first, then JLW, SW then JW.” LW - sexual intercourse with EW between 1 Nov and 31 Dec 1992 (OLC 5159/12)

The next charge arising out of the allegations made by EW was a count of sexual intercourse with EW without consent in circumstances of aggravation (OLC 5159/12). The offence is provided by s 61J(1) of the Crimes Act. It was particularised as having occurred at Beacon Hill between 1 November and 31 December 1992. Related charges were preferred against AW and JS arising out of this incident.

The material relied upon in support of this charge is contained in paragraphs [18] and [19] of the statement made by EW on 10 May. She described an occasion towards the end of Year 6 (late 1992) when her father was having anal intercourse with her in her bedroom. Her mother walked into the room naked holding a vibrator, which she inserted into her vagina. After this she handed the vibrator to her father who inserted it into her anus while her mother licked her vagina and clitoris.

The allegations are somewhat surprising when the chronology is analysed. At paragraph [15] in the 10 May statement EW gave an account that her first recollection of vaginal sex was on an occasion after Mother’s Day 1993. After this incident there was a “mess of blood” (at [17]). EW’s claim that forms the basis of OLC 5159/12 - that she was subject to simultaneous anal and vaginal penetration - is said to have occurred a number of months prior to the first episode of vaginal intercourse. LW - sexual intercourse with EW between 16 Oct and 31 Dec 1993 (OLC 5159/13)

The next charge preferred against LW was a count of sexual intercourse with EW without consent in circumstances of aggravation (OLC 5159/13), pursuant to s 61J(1) of the Crimes Act . It was particularised as occurring at Beacon Hill between 16 October and 31 December 1993.

The material relied on in support of OLC 5159/13 is contained in paragraphs [7] – [9] of EW’s statement made on 16 May. This was an episode that occurred shortly after EW’s thirteenth birthday. She was lying on her parents’ bed watching television when her mother came into the room and lay down next to her and digitally penetrated her and licked her vagina. LW - sexual intercourse with EW between 1 and 19 April 1994 (OLC 5159/14)

The next charge preferred against LW at court on 23 June 1994 was of sexual intercourse with EW without consent in circumstances of aggravation (OLC 5159/14), pursuant to s 61J(1) of the Crimes Act. It was particularised as having occurred at Beacon Hill between 1 April and 19 April 1994. Related charges were preferred against AW and JS arising out of this incident.

Counsel for LW placed considerable reliance on this charge since it related to events said to have occurred very shortly before EW was taken into care by DOCS.

In her first statement EW described the assault as taking place on an afternoon of the weekend prior to her parents’ arrest. Her father forced her to engage in an act of fellatio while he was sitting on the toilet. He roughly inserted his fingers into her vagina. After these assaults he took hold of her by the hair and shoved her face into the toilet. She twisted her head to get her mouth out of the water and felt a pain in her anus. She was unable to tell whether he was penetrating her with his fingers or his penis.

In her second statement EW again gave an account of this last instance of sexual abuse prior to her parents’ arrest. She put it as occurring about a week before the arrests. This was an assault in the lounge room of the family home and was committed on the same day as the assault that I have set out in paragraph [325] above. She now claimed that her mother had digitally penetrated her in the lounge-room of the family home. LW licked EW’s menstrual blood off her fingers. Her father was present and he handed LW a vibrator, which she put in EW’s vagina. He removed the vibrator and smeared menstrual blood across EW’s cheeks and chest. The vibrator was put back inside her vagina and she was made to lick the blood off it. After this assault she said that she had gone to the bathroom and had a shower. This was when AW walked in and assaulted her in the manner that I have described. After this EW had a second shower.

On 8 June Constable Nicholson directed EW’s attention to the last time that she had been assaulted. On this third occasion EW gave the following account: “I just got home from school. I had walked to my room and put my bag down. I took my shoes off. Mum came in and she said, ‘you’ve got your periods haven’t you?’ I didn’t answer. She said, ‘Thanks for telling me you bitch’. I didn’t say anything because it would have only made it worse. She dragged me into the lounge room by my arm and hair, at some point JW helped her. They got me into the lounge room, Mum pushed me down with both hands till I was laying on my back on the ground. JW had his hands pushing me down on my shoulders he was behind my head. Dad came in. Q 36. When you said you had no clothes on what happened to your school uniform? A. Mum took it off while JW was holding me on the floor. She just ripped them off. Q 37. What happened to the uniform? A. It was in my room the next morning, I don’t know how it got there.”

In this account of the incident JS, JW and JLW were also present in the lounge-room. The assault was now said to have involved the whole family: “This is one of the times that everyone in the room had to taste and lick the blood JS licked me after Mum, then JLW, then JW. It was as awful every time. I didn’t have enough blood so Dad pushed the vibrator in further and Mum was really rough to try and make me bleed more” (Q & 46).

It is to be noted that on this version the assault occurred on a weekday afternoon after school whereas her earlier account was that it was on the weekend. The charges preferred against LW on 23 June 1994 relating to JW LW - indecent assault on JW between 30 Oct 1984 and 29 Oct 1985 (OLC 5159/15)

The first of the charges preferred against LW on 23 June concerning her son, JW, alleged an indecent assault contrary to s 61E(1) of the Crimes Act (OLC 5159/15). This offence was particularised as having occurred between 30 October 1984 and 29 October 1985 at Beacon Hill. The evidence relied upon in support of this charge is contained in paragraph [4] of the statement signed by JW on 4 May: when he was about six years old and in Year 1 at school, LW called him into the bathroom and rubbed her hand up and down over his penis on the outside of his pants. LW - indecent assault on JW between 30 Oct 1985 and 29 Oct 1986 (OLC 5159/16)

The next charge alleged a further indecent assault on JW (OLC 5159/16). This offence was particularised as having taken place between 30 October 1985 and 29 October 1986 at Beacon Hill. The evidence relied upon in support of this count is contained in paragraphs [5] and [6] of JW’s statement of 4 May 1994: when he was aged about seven years LW picked him up and put him on top of the washing machine. She pulled down his shorts and moved his underpants to one side, taking hold of his penis and pulling it up and down. LW - aggravated indecent assault on JW between 30 Oct 1986 and 29 Oct 1988 (OLC 5159/17)

The next charge was a count of aggravated indecent assault on JW contrary to s 61E(1A) (OLC 5159/17). This was particularised as having occurred between 30 October 1986 and 29 October 1988 at Beacon Hill. The evidence relied on in support of this charge is contained in paragraph [7] of JW’s statement of 4 May 1994: when he was aged about eight or nine years LW put her hands down his pants and grabbed hold of his penis. LW - aggravated indecent assault on JW between 30 Oct 1988 and 29 Oct 1989 (OLC 5159/18)

The next charge alleged an offence of aggravated indecent assault on JW contrary to s 61E(1A) (OLC 5159/18). It was particularised as occurring between 30 October 1988 and 29 October 1989 at Beacon Hill. The evidence relied on in support of this count is contained in paragraph [8] of JW’s statement of 4 May: when he was aged about ten years LW put her hand down his pants and grabbed hold of his penis. LW - aggravated indecent assault on JW between 1 and 31 Jan 1994 (OLC 5159/19)

The last charge preferred against LW on 23 June was a count of aggravated indecent assault on JW contrary to s 61M(1) (OLC 5159/19). It particularised the offence as occurring between 1 and 31 January 1994 at Beacon Hill. The evidence relied on in support of this count is contained in paragraph [9] of JW’s statement of 4 May: LW bought him a packet of underpants and told him to try one pair on. When he walked back into the kitchen with them on she lunged forward, grabbing his penis and balls saying, “oh ah ah ah”. THE CLAIMS OF THE FIRST PLAINTIFF AW’s claims concerning the events of 19-20 April 1994 AW’s claim of unlawful arrest

AW was aged fifty years at the date of his arrest. He had been employed for the preceding thirty-four years as a tradesman and later in a supervisory capacity with a State Government Corporation. He worked five days per week, Monday to Friday, commencing his shift at 7:30 am and completing it at 4:00 pm. He travelled to work by public transport. It was a long trip, taking around two hours each way. He was accustomed to leaving home at around 5:00 am and returning at around 6:00 pm.

On 19 April AW returned home at 6:15 pm. His mother-in-law was in a very agitated state. She told him that the children had been removed and that his wife and SW were at the police station.

AW drove to the Dee Why Police Station. He spoke to an officer at the counter who made a telephone call and told him something. He sat on a seat in the public part of the police station and waited for a period well in excess of an hour. After some time he was approached by MOD and Detective Yeomans.

MOD introduced himself and Detective Yeomans to AW in the foyer of the police station and asked him to come with them. Nothing further was said. MOD walked from the foyer through a door to an interview room. AW followed him with Detective Yeomans behind.

AW said that when he walked into the interview room MOD pointed to a seat and said, “Place your butt on that” (T 292.19). He did as directed and both MOD and Detective Yeomans sat down. AW said that he had been told that his wife had been charged with sexually assaulting their daughter, SW, and that the police had been advised that he had sexually abused SW and EW. AW said that he responded to the allegations saying, “Absolutely no way” (T 293.18).

The police had a warrant to search the family home. AW was taken by MOD and Detective Yeomans to the premises and was present when the search was carried out. He was in custody throughout this period. He saw JS and her son GS at the premises but he did not speak to either of them. AW recalled that MOD explained that the warrant allowed the police to search for items, including pornographic literature and sexual implements.

At the conclusion of the search AW was taken back to the interview room at the police station. After a little time MOD and Detective Yeomans commenced to interview him. The interview was recorded on video and audio tape. It commenced at 11:44 pm on 19 April and was concluded at 2:16 am the following morning. AW denied all the allegations that were put to him.

At the conclusion of the interview MOD informed AW of his intention to charge him with the sexual assault of SW. He was informed that other matters would be investigated.

AW said that after he signed the seals on the tape-recording of the ERISP, MOD had stood behind him and sniffed him saying, “You smell of B.O. That’s the sign of guilt” (T 315.43).

AW was taken from the interview room to a small cell. He was left there for five or ten minutes until a uniformed police officer took him to another part of the police station where he was fingerprinted and his photograph was taken. After this he was put back in the cell for a period of twenty minutes to half an hour. Thereafter he was released on bail subject to conditions including that he not approach or make contact with any of his four children.

AW was charged with two offences that night. Each was preferred under s 61J(1) of the Crimes Act and alleged that he had sexual intercourse with SW without her consent, knowing that she was not consenting thereto in circumstances of aggravation. The first charged an offence at Manly Vale on or about 12 January 1994 (OLC 5161/1) and the second charged an offence at Manly Vale on or about 18 March 1994 (OLC 5160/2). He was charged with both offences at 3:14 am on 20 April 1994.

Detective Yeomans had no independent recall of the conversation between MOD and AW at the police station on the night of AW’s arrest. He relied on the accuracy of a statement made by him the following day. Detective Yeomans gave no account of the sniffing episode following the interview. The matter was not taken up with him in cross-examination. I was not satisfied that AW’s recollection of an incidental remark such as, “Put your butt on that” was reliable, given the strain he was under at the time and the lapse of years. I understood Detective Yeomans to deny that such a remark had been made.

Detective Yeomans said that a decision had been taken to charge AW prior to the conduct of the interview. In cross-examination it was suggested to him that he and MOD would not have wished AW to leave the police station after they became aware that he was waiting in the foyer area. He agreed that was so. AW was present in the foyer of the police station for a considerable period before being first spoken to by MOD. He understood that he was not free to leave from the time MOD first spoke with him and asked him to accompany him. There is no evidence that AW’s liberty had been restrained at an earlier time. I consider AW to have been arrested at the point when he was first spoken to by MOD. The charges preferred against AW: the claim in malicious prosecution

The charge alleging an offence on 12 January 1994 was founded on the complaint of SW set out in the Cruickshank statement in paragraphs [97] – [103]. SW gave an account that she had been at her Manly Vale home when AW called. They went out into the backyard to where she had a number of guinea pigs. The sight of the guinea pigs brought back memories of earlier abuse. She became upset and asked AW to leave. She went into the house and closed the back door behind her. She went to shut the laundry door but AW let himself in before she could stop him. He grabbed her by the right upper arm and swung her around, pushing her shoulders together and pulling her towards him. He asked, “Why are you avoiding me?” and started to shake her. He moved her into the lounge room. He undid her jeans and shirt and pushed her bra up and started kissing her breasts. He pulled her underpants down to her knees and kissed her vagina. He instructed her to open her legs. She did not comply and he bit her. Then he had penile/vaginal intercourse with her.

SW said that after this assault she telephoned Douglas Keir and left a message on his answering machine. She was not due to see him again until 24 January. When he returned her call she arranged to see him a week earlier, on 17 January. She told Detective Cruickshank that she complained to Douglas Keir about this assault.

Material relied on in support of the charge alleging the offence on 18 March 1994 is to be found in paragraphs [105] – [109] of the Cruickshank statement. SW alleged that on that evening she had been at home by herself when she opened the laundry door to let her dog out and saw her father standing in the backyard. She made to close the door but he grabbed hold of her hand and took her inside to the lounge-room. AW pushed her to the floor and pulled her leggings down. He was angry that she was wearing a sanitary napkin and he punched her to the stomach two or three times saying, “This isn’t going to stop me”. He lay on top of her and had penile/vaginal intercourse with her. Afterwards he stood up and asked her, “Do you still get pain in your lower back when you get your period?” SW nodded and rolled over so as not to look at him. He kicked her a few times in the lower back and left.

The material available to the investigating police included that SW had continuing contact with Douglas Keir in the period between 18 and 30 March, when he accompanied her to the police station at the time when she spoke with Detective Cruickshank. Detective Yeomans agreed that it would have been appropriate to interview Douglas Keir before the charges were laid against AW. He was not able to say why a statement had not been taken from Mr Keir before AW was charged.

The timing of the decision to charge AW was said to have been at least in part the result of the decision taken by officers of DOCS to take the children into care. The perceived necessity to arrest and charge AW on 19 and 20 April, rather than to complete inquiries into SW’s allegations including by taking a statement from Douglas Keir, may be questioned. I do not consider that the fear AW might flee the jurisdiction was one that was in serious contention in so far as MOD or Detective Yeomans were concerned.

I accept AW’s submission that there was no pressing reason for MOD and Detective Yeomans to charge him on 20 April before undertaking further inquiries. As I have stated, I also think it likely that MOD arrested LW before her husband in the hope that she might provide police with information relevant to their investigation. Neither that finding, nor my view that it was open to MOD to have pursued a more cautious approach, means that his decision to institute the prosecution of AW on the two charges that were preferred on 20 April was without reasonable and probable cause.

SW had given a detailed account of the two alleged offences with which AW was charged. She was aged eighteen at the time she made the allegations. Detective Cruickshank took the statement detailing the allegations. She considered SW to be a credible complainant and had communicated this opinion to MOD. Conclusion: AW’s claims regarding the events of 19-20 April

I am not persuaded that AW has established that there was an absence of reasonable and probable cause in relation to the institution of the prosecution against him of the two charges on 20 April.

I am satisfied that the detention of AW at the Dee Why Police station following his voluntary attendance there on the night of 19 April was lawful. His liberty was restrained, as I have stated, from the time he was invited to accompany MOD and Detective Yeomans to the interview room. He was detained until his release on bail sometime in the early hours of 20 April after 3:14 am (the time at which he is recorded as having been charged).

The case was not conducted upon the basis that it was unlawful for the police to defer the charging of AW while he accompanied the police to the family home and was present while the search warrant was executed. AW’s arrest occurred at night and there was no claim of a failure to take AW before an authorised justice to be dealt with according to law. I find that MOD and Detective Yeomans suspected AW of having committed offences against SW and that they had reasonable cause so to do. AW’s detention at the police station and in the company of MOD and Detective Yeomans in connection with the execution of the search warrant was lawful. It follows that I do not find that AW was falsely imprisoned on 19 and 20 April. The charges preferred against AW on 23 June 1994

Thirty-eight fresh charges were laid against AW at Manly Local Court on 23 June 1994 (OLC 5160/3 to OLC 5160/40). Twenty-two charges alleged sexual offences against SW. Thirteen alleged sexual offences against EW. Two alleged sexual offences against SS and one alleged a sexual offence against KS. The charges preferred against AW relating to SW AW - assault on SW between 15 and 31 May 1981 (OLC 5160/3)

The first charge alleged an offence of indecent assault on a female under the age of sixteen years (five years) contrary to s 76 of the Crimes Act (OLC 5160/3). It was particularised as involving an assault on SW between 15 and 31 May 1981. This charge related to the first act of sexual misconduct that SW described: the incident shortly after her grandfather’s death when AW was alleged to have kissed her in a sexual way in the back shed of the family home. I have noted the inconsistency between the account SW gave of this episode in the second statement with the account given in the Cruickshank statement. This is dealt with at paragraph [283] above in setting out the history of OLC 5159/3 preferred against LW. AW - indecent assault on SW between 16 and 31 October 1981 (OLC 5160/4)

The next charge was an allegation of indecent assault against SW contrary to s 61E(1) (OLC 5160/4) at Beacon Hill between 16 and 31 October 1981. The material relied upon in support of it is set out in paragraphs [13] and [14] of SW’s second statement. SW said that after the incident when her father drowned her guinea pigs he had started to kiss her in a sexual way when he went into her bedroom of a morning to wake her up before he left for work. He would also put his hand under the doona, rubbing her vagina. She dated the commencement of this abuse to when her younger sister, EW, was only a baby. It had happened almost every day. When her father first started touching her in this way EW had just been born. The account given in the second statement of the commencement of this abuse is broadly consistent with the account that SW gave in the Cruickshank statement (at paragraphs [10] and [11]). AW - carnal knowledge of SW between 5 Feb 1982 and 4 Feb 1984 (OLC 5160/5)

The next charge was a count of carnal knowledge of SW (OLC 5160/5). The offence was particularised as taking place between 5 February 1982 and 4 February 1984. It was withdrawn on 28 March 1996 and replaced by OLC 5160/41. I have set out the evidence relating to this charge in paragraph [280] above in dealing with the related charge against LW. AW - the first allegation of anal intercourse (OLC 5160/6)

The next charge was a further count under s 67 of the Crimes Act of carnal knowledge of SW, she being under the age of ten years (six years) (OLC 5160/6). This offence was particularised as having occurred between 3 October and 30 November 1982 at Beacon Hill. It was withdrawn on 28 March 1996 and replaced with a charge that AW had sexual intercourse with SW without consent, she being under the age of sixteen years (six years) (OLC 5160/42). This was an offence under s 61D(1).

The material relied upon in support of this charge is contained in paragraphs [28] - [32] of SW’s second statement. SW said that she had a strong memory of something happening about November 1982 after JW and EW had their birthdays which were in October. The incident occurred at a time when LW was pregnant with JLW and before the Christmas tree had been erected. The Christmas tree was always erected in the last week of November. AW took SW into the bedroom and made her bend forward over something. LW was sitting on a chair in front of her while her father held her from behind. He then pulled his pants down and held her by the hair with one hand, with his other hand on her hip. She felt a strong pain as something was inserted into her anus. Her father pulled her head back by her hair and her mother slapped her across the face. As her father pushed into her she screamed and on each occasion her mother slapped her across the face. No charge was preferred against LW in connection with this incident. SW’s account in the second statement continued in these terms (paragraph [32]): “Dad kept pushing backwards and forwards inside my bottom a while longer and the pain was really bad. Then he stopped moving inside me. Mum then said, ‘does it hurt?’ I said, ‘yes’. Mum said something to, ‘does it hurt more than anything we’ve done to you before?’ I wouldn’t answer and then Dad pushed himself forward hard up inside me. Mum asked me again and when I didn’t answer, Dad did it to me again. Mum then left the room and came back with EW and sat back on the chair in front of me with EW on her knee. Mum then asked me the question again and when I didn’t answer she said something about if I didn’t answer her then they would do it to EW. Mum then asked me again if it hurt and I said, ‘yes’. Then she said, ‘more than anything before?’ I said, ‘yes’. Dad then pulled out from inside me and Mum put EW down and she wandered out of the room. When EW had gone I told Mum that I had lied and that it didn’t hurt.”

This incident was not referred to by SW at the time she made the Cruickshank statement.

SW was able to date this offence with some particularity. It occurred at a time when her mother was pregnant with JLW: after the assault her mother had been really angry with her and she remembered talk that she might lose the baby. JLW was born in December 1982.

SW appears to have given a different account of the incident in her interview with MOD at the police station on 19 April. He recorded that she said: “I remember a time M held me while D put his penis inside my bottom I think I was about thirteen because I had my periods when he did it.” AW - the first allegation of penile/vaginal intercourse (OLC 5160/7)

The next charge was a further count of carnal knowledge of a girl under the age of ten years (seven years) under s 67 (OLC 5160/7). It particularised an offence against SW committed between 28 December 1983 and 5 February 1984. The evidence in support of this charge is contained in paragraphs [34] - [37] of SW’s second statement.

SW alleged that following the birth of JLW in late December when she was aged seven and on school holidays, her father digitally penetrated her in the bathroom. LW had walked in and tapped him on the shoulder. The two of them argued: LW did not want to have sex with him. The dispute culminated with LW saying, “Well do it with her”. SW was carried into her parents’ bedroom and put on the bed. LW held her down while her father had penile/vaginal intercourse with her. It was very painful and SW screamed out, waking JLW who started to cry. LW said, “She’s had enough” and she let go of SW and went to tend to JLW who was in the bassinet. AW and LW were both angry because JLW was crying. They both hit SW and she was told to get out of the room. She was unable to walk, and crawled as far as the bedroom door where she lay on the floor. Ultimately, she was put to bed. Her mother said to her, “The first time is the hardest”.

There was no account of this incident (or anything like it) in the Cruickshank statement. The first incident of penile/vaginal intercourse described on that occasion took place on the day SW was caught smoking shortly after her ninth birthday (paragraph [36]). I have already noted the varying accounts SW gave of this day. It is apparent that SW gave inconsistent versions of the first occasion on which she had penile/vaginal intercourse with her father. AW - carnal knowledge of SW between 1 March and 31 May 1985 (OLC 5160/8)

The next charge was a further count of carnal knowledge of SW, she being a girl under the age of ten years (nine years) (OLC 5160/8). It was an offence under s 67 of the Crimes Act . The offence was alleged to have occurred between 1 March and 31 May 1985 at Beacon Hill. This charge arises out of the same incident as the offence charged against LW in OLC 5159/5. The material relied on in support of it is to be found at paragraphs [42] - [44] of the second statement. I have dealt with this at [293 - [294] above. This is the allegation relating to the assault that occurred on the day SW was caught smoking with her friend, Rebecca. AW - the assault on the night of the school disco (OLC 5160/9)

The next charge alleged that AW had sexual intercourse with SW, she being the age of ten years and under his authority (OLC 5160/9). The offence is provided by s 66C(2). It was particularised as having occurred between 1 November and 31 December 1986 at Beacon Hill. The material relied upon in support of this charge is found at paragraphs [46] - [49] of the second statement. It is an incident that is said to have occurred when SW was aged ten years and in Year 5 at school. She alleged that AW had sexual intercourse with her on an occasion when he collected her after a school disco.

The first account of the school disco incident is given in the Cruickshank statement at paragraphs [41] - [44]. SW said that the disco did not finish until late. Her father came to the school and picked her up. The school was located a short walk from the family home. Instead of following the usual route home her father led her to a grassy area near an oval. He told her to lie down and he pulled her dress up and instructed her to unzip his trousers. He had sexual intercourse with her and afterwards he said to her, “You are getting better at doing this”.

In the second statement SW gave an account (consistent with the annotations to the Cruickshank statement) that she had been instructed by her mother to wear a dress to the school disco. The account of the offence given in the second statement is broadly comparable to that given in the Cruickshank statement. In the second statement SW did not refer to her father’s remark that she was getting better at doing it. On this occasion, when describing events after the act of intercourse, she said: “I remember I saw Dad standing there while I was still lying on the ground but I can’t remember what happened after that or how I got home” (at [49]). AW - the assault at the time of SW’s first period (OLC 5160/10)

The next charge alleged that AW had sexual intercourse with SW, a person above the age of ten years and under the age of sixteen years (eleven to twelve years) who was under his authority, an offence provided by s 66C(2) (OLC 5160/10). The charge was particularised as having occurred between 1 January and 31 May 1988 at Beacon Hill. The evidence relied on in support of this charge is set out in SW’s second statement at paragraphs [51] - [54]. It is the allegation that relates to SW’s first menstrual period. She was aged twelve years. SW said that the incident occurred during the first term of Year 7 after a school camp to the Basin.

The incident is described in different terms in the Cruickshank statement (paragraphs [46] - [51]). I have set out the differing versions at paragraphs [296] – [297] above.

The versions that SW gave to the police in the Cruickshank statement and the second statement do not sit well with the account that SW had given to Douglas Keir. In the accounts to the police she was describing an assault when she was aged eleven or twelve. At the initial counselling session on 15 November 1993 SW said that she been indecently touched by her father dating back to when she was aged nine to eleven years after which she left home and lived with her uncle until she was fourteen (first Keir statement, paragraph [12]). AW - further assault on SW on the day of her first period (OLC 5160/11)

The next charge was a count that AW had sexual intercourse with SW, a person above the age of ten years and under the age of sixteen years (eleven to twelve years) and under his authority pursuant to s 66C(2) (OLC 5160/11). It will be recalled in the second statement SW said that LW had woken her later in the day and told her to have a shower. SW changed the sheets on her bed and cleaned up where she had vomited. She was unable to remember how it happened, but she had finished up lying sideways across her parent’s bed. She described a further assault that took place in the master bedroom that afternoon. The allegations relating to this incident give rise to OLC 5159/6 with respect to LW. I have dealt with it at paragraphs [296] - [297] above. AW - the assaults on the night before the school excursion to Bathurst (OLC 5160/12), (OLC 5160/13), (OLC 5160/14)

The next three charges related to an incident at the family home that was said to have occurred between 1 June and 31 August 1990. The first of these charges alleged that AW incited SW to an act of indecency with another person, she being under the age of sixteen years (fourteen years) and under his authority, pursuant to s 61E(2A) (OLC 5160/12). The second offence arising out of this incident charged AW with sexual intercourse with SW, she being above ten years and under sixteen years (fourteen years) and under his authority, an offence contrary to s 66C(2) (OLC 5160/13). The third charge was a further count of inciting SW to an act of indecency with another person, she being under sixteen years (fourteen years) and under the authority of AW, an offence contrary to s 61E(2A) (OLC 5160/14). A related offence was charged against LW (OLC 5159/7). These charges relate to the incident on the night before SW went on the school excursion to Bathurst.

The material relied upon in support of these charges is contained in SW’s second statement at paragraphs [59] - [61] (and with respect to LW at [65]). In her second statement SW gave the following account of the events. She was aged fourteen years’ and in Year 9 at school. It was the night before she was due to go on a school excursion to Bathurst. Her mother had told her to go into the bathroom. When she walked in her father came out from behind the shower curtain wearing boxer shorts and a t-shirt shaped singlet. He took her to her younger brother JW’s room. JW was in bed. Her father said something to JW about wanting him to learn. JW got out of bed and her father pushed SW onto her knees. She had to put her mouth around her brother’s penis. He started to push his penis towards the back of her mouth and she gagged and coughed. When she coughed her teeth hurt his penis and he cried out in pain. He shoved her hard backwards and her father said words to the effect, “I’ll show you what to do if that happens”. He then pulled her tracksuit pants down and commenced having penile/vaginal sexual intercourse with her. After this JW told her that he was sorry. She left the bedroom and went into the kitchen and spoke with her mother who asked, “Is JW doing it right?” SW could not remember what, if anything, she said in response to this query. Her mother handed her a bottle of whiskey and she started drinking from it. Her mother said, “JW is good for his age”. She then spoke to SW about the school excursion and, following this, SW went to bed. This incident is not referred to in the Cruickshank statement although it is to be observed that SW told Detective Sergeant Cruickshank about the school excursion to Bathurst. AW - the assault on the day SW was counselled at school (OLC 5160/15)

The next charge was a count of sexual intercourse with SW, a person above the age of ten years and under the age of sixteen years (fifteen years) and under his authority, an offence contrary to s 66C(2) (OLC 5160/15). The evidence relied on in support of this charge is contained in SW’s second statement in paragraphs [67] - [69]. When she was in Year 10 at school, aged fifteen years, her geography teacher sent her to see the school counsellor, Mr McKay. She was unable to tell the school counsellor why she was performing poorly and so gave an account that she did not have enough time to do homework because she was helping her mother with her two younger sisters. Mr McKay apparently reported this conversation to LW who worked in the school canteen. That night LW told AW about her discussion with Mr McKay. Both of them were angry with SW and she was not allowed to have dinner. This was not unusual because her parents were keen to make sure that she did not put on weight.

Later that evening AW spoke to SW in her bedroom about her wish to leave school. He took hold of her and took her to the master bedroom, saying, “If you leave school, you will still have to do this” (paragraph [69]). He had penile/vaginal and then anal intercourse with her. SW could not be sure, but she had a recollection of seeing EW brought into the bedroom that night and of her father having sexual intercourse with EW.

SW had given an account of being sent to the school counsellor in the Cruickshank statement (at paragraphs [67] - [69]). On that occasion she said that her father had sex with her before he left her bedroom that night. She said she did not remember too much about it and did not know where everybody else was. She recalled that as he left her room, after having sex with her, he pulled the doona up, kissing her on the side of her face. AW - the assault on SW to procure a miscarriage (OLC 5160/16)

The next charge was a count of assault occasioning actual bodily harm committed on SW. It was particularised as occurring between 1 January and 31 December 1991 at Beacon Hill (OLC 5160/16). The evidence in support of this offence is contained in SW’s second statement at paragraphs [70] - [73]. The time particularised suggests that SW was fifteen years old. She was in Year 10.

The account that SW gave in the second statement was that she had missed a period and that her father came into her bedroom and they discussed the possibility that she was pregnant. He asked her, “If you are do you want to keep it?” and she said “No”. He turned her so that her back was up against the wall and he held her in this position with one hand while punching her forcefully to her stomach a number of times. She started to vomit up blood. He took her to the bathroom where she vomited into the toilet. He ran a bath and she was made to sit in it while he stood watching her. She was bleeding from the vagina. He left the bathroom and returned with a pair of her underpants and a sanitary pad for her to put on.

SW had given an account of this assault in the Cruickshank statement (at paragraphs [70] - [73]). On that occasion she said that her father had come into the bedroom with a bottle of bourbon. He gave her the bottle and instructed her to keep drinking until her told her to stop. She started to drink the bourbon from the bottle. She was unable to recall how much she drank. She described the assault in much the same terms as she later gave in the second statement.

In a statement taken by police on 7 June 1994, SW’s school friend Jackie gave an account that she had been at a friend’s sixteenth birthday party with SW in September 1991. At that time SW was with her former boyfriend, Richard. He told Jackie that SW was pregnant. Jackie then spoke to SW about offering her support. In this conversation SW told her that the father of the child was a person named Tikone. AW - the blow to the back of the head (OLC 5160/17)

The next charge was a count of assault occasioning actual bodily harm (OLC 5160/17). This offence was particularised as occurring between 31 May and 30 June 1992. The evidence relied on in support of it is contained in the second statement in paragraphs [74] - [78].

SW said that around May 1992 she met her boyfriend, Michael. She was in Year 11 at school. About a month after meeting Michael she decided to leave school. Her father was angry with her about this decision. She and Michael were at the family home on the evening of the decision (or the evening after it). AW instructed Michael to leave. He yelled at SW and she walked away from him. As she did so she was struck a blow to the back of the head which caused her to lose consciousness. The next thing that she recalled was waking the next morning with her father kissing her goodbye as he was going to work. Her head was sore and she had a large lump on the back of the head. Michael came over and attempted to comfort her. He put his hand on the back of her head and it brushed the lump. She talked to him about it. During the day she kept blacking out and feeling terrible. A couple of days later Michael took her to a medical centre where she saw a doctor.

In the Cruickshank statement SW gave an account of this incident at paragraphs [75] - [79]. The account was consistent with the account contained in the second statement.

In a counselling session held on 29 November 1993 SW was said to have complained that the last time her father had been violent was about four months earlier when he had hit her in the head and she had blacked out for the whole evening (at paragraph [19]). This would put the date of the assault as around July 1993.

Michael made a statement on 29 May. He said that the day after SW quit school he had called to her home and the two of them had been sitting in the backyard. He put his hand on the back of her head and she quickly lent forward. He asked what was wrong and she said that she could not be sure of what had happened. She had said something about having been arguing with her father and that when she turned away she felt herself get a knock to the back of the head. She told Michael that she had been carried to bed and that she had woken in the morning with a pain at the back of her head. Later that night SW had passed out, falling to the floor in the kitchen of the family home. Michael offered to take her to the medical centre. SW did not want to go because she did not want to tell the doctor what had happened and because she would have had to wake up her mother to get her Medicare card. Ultimately SW agreed to go the medical centre. He had taken her and she had been examined by a doctor but she had not told the doctor the truth of what had happened (paragraphs [13] - [15]). AW - the assault on the night SW returned to the family home (OLC 5160/18)

The next charge was a count of sexual intercourse with SW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/18). The evidence in relation to this charge is contained in SW’s second statement at paragraphs [90] - [92]. This is the incident that is said to have occurred on the first night that SW moved back into the family home in 1993.

In the Cruickshank statement SW gave an account that she had been the subject of one episode of sexual assault in the period when she resumed living in the family home. This occurred on the first night that she moved back home. She was in the garage packing some of her belongings. Her father came into the garage and pushed her onto the seat of the family car. He pulled her jeans and underpants down to her knees and attempted to have penile/vaginal intercourse with her. He was interrupted by the sound of the Silky Terrier, who was barking and scratching at the garage door.

Before moving to the expanded version of that assault contained in the second statement, it is to be noted that in the Cruickshank statement SW gave an account that in the period of one month when she was back at home her father had come into her bedroom on a number of occasions and kissed her in a sexual way before he left for work. On one of these occasions he had put his hand under the doona and her cat had scratched him. SW observed, “he didn’t bother me after that” (at paragraph [88]). It is fair to say that SW’s ultimate version of the assaults to which she was subject while living in the family home in mid-1993 was in marked contrast to the restrained account contained in the Cruickshank statement.

The annotations to the Cruickshank statement recorded by MOD on 17 April include: ‘Between Mona Vale/Manly Vale – home first night (garage incident with dog) when I went to the home dad was walking away from mum (argument) mum said I would have to get rid of the animals (dog/cat) because they are getting in the way. That night ‘get rid of the dog – it’s getting in the way’”.

In her second statement SW gave an account that on her first night living back at the family home her mother instructed her to go to the garage and her father had followed her, slamming the door behind him. She again described being pushed onto the front passenger seat of the parked car and of her father’s attempt to have intercourse with her. Again, she referred to the Silky Terrier barking at the door. She now said that her father instructed her to take the dog into the house and that she did so. Her mother awakened EW and instructed her to go to the garage too. When SW returned she was made to lie down on a bench and her father had sexual intercourse with her. Next he had sexual intercourse with EW who was lying on another bench in the garage. AW - the assault at Manly Vale (OLC 5160/19)

The next charge preferred against AW was a count of sexual intercourse with SW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/19). It was particularised as having occurred at Manly Vale between 1 November and 30 November 1993. The evidence relied on in support of this allegation is contained in SW’s second statement at paragraph [99].

SW said that she and Michael moved into a house in Manly Vale on 4 September 1993, which they shared with Michael’s cousin and the cousin’s girlfriend. Her parents had not been able to have sex with her very often because usually someone else was at home. The other couple moved out after the six month lease expired and her parents started to visit more frequently. In November 1993 the other young woman living in the Manly Vale home got a job and had to attend a full-time training course. During this week AW called to the Manly Vale home each day and had vaginal and anal intercourse with her. On each occasion he left a bottle of bourbon for her to drink. SW said that drinking was a means of trying to forget what was happening to her and that at the time she could not see any way out of her predicament. Her mother had told her several times that if she was not there for them they still had EW.

SW attended counselling sessions on 15 and 29 November 1993. The daily sexual assaults occurred close to or over the period of these attendances. SW volunteered in the course of the session on 29 November that her father had been violent towards her: she told Douglas Keir about the incident four months earlier when he had struck her to the head. She said that he was violent to other members of the family. It is to be noted that during this session Mr Keir inquired, “How do you feel about talking about the violence and incest with me?” and that SW reportedly responded, “I can’t remember much about it”.

In the annotations to the Cruickshank statement MOD recorded the following: “Not much happened at Manly Vale – sharing a house. X got a job before Christmas ’93. She had one week fulltime training – Dad came around every day that week (couple of weeks prior to Christmas) Dad drop off J. Beam bottle every day. Stayed away from the family until (indecipherable).” AW - the assault on JLW’s eleventh birthday (OLC 5160/20)

The next charge alleged that AW had sexual intercourse with SW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/20). The offence was particularised as having occurred on 28 December 1993 at Beacon Hill. This offence relates to the events at the family home on JLW’s eleventh birthday. The evidence relied on in support of it is contained in SW’s second statement at paragraphs [100] - [102].

In the Cruickshank statement SW referred to JLW’s eleventh birthday. She said that she and Michael had gone to the family home for dinner that evening. She described the conversation in the kitchen in which her father asked her, “Do you remember your ninth birthday?” The conversation with her father had been interrupted when EW walked in to the kitchen. This was all that had happened on JLW’s eleventh birthday.

The annotations to the Cruickshank statement do not suggest that SW was offering a different account of the events of the night of JLW’s eleventh birthday when she spoke with MOD on 17 April.

The complaints made by SW concerning her mother on 19 April did not include any allegation of misconduct on JLW’s eleventh birthday.

In the second statement SW gave an expanded account of the events at the family home on the evening of JLW’s eleventh birthday (at paragraphs [100] - [105]). On this occasion she said that she and Michael had gone to the family home for dinner. Again, she gave an account of a conversation with her father in the kitchen in which there had been discussion about birthdays. The terms of the conversation varied in a significant respect from her account of it given in the Cruickshank statement as I have noted. In the Cruickshank statement SW said that EW had walked into the kitchen and her father had gone back outside. She now asserted that EW had come into the kitchen and that her father had questioned both girls about their favourite birthdays, telling them that he and their mother needed to decide what to do with JLW that night. Neither SW nor EW answered the question so both were made to go into JW’s room. AW was angry and made EW bend over a chest of drawers. He pulled her leggings down and had anal intercourse with her. Next he made SW bend over the chest of drawers and he had anal intercourse with her. He then again asked each girl questions about their favourite birthdays.

SW continued her account of events at the family home on the occasion of JLW’s eleventh birthday, saying (at [103]): “Dad then left the room to leave EW and me to decide. Because of what had been done to us, EW and I agreed to tell Dad our favourite birthdays were when we got hurt the most. I told Dad that my favourite birthday was when he and Mum did it to me at the same time and EW told Dad it was when he put his penis into her anus. I knew it was cruel, but it had been done to us and I felt that we only got into trouble that night because of JLW.”

SW gave an account of an assault on JLW that took place later that night. I shall set it out in full. “[104] Later that night, JS and Michael were in the lounge room and Dad and Mum got me, JW, EW and JLW to go into their bedroom. EW and I had to sit on the desk and watch and JW had to stand near the bed. Dad took his trousers off and was only wearing his shirt and Mum got undressed. Dad then put his penis into JLW’s vagina while Mum put this penis shaped thing, which I think is called a dildo, into JLW’s anus at the same time that Dad had his penis in her vagina. When Mum did that, JLW screamed out. [105] While Mum was putting the dildo thing into JLW’s anus, JW was putting his fingers into Mum’s vagina. When they had finished, JW had to put his penis into JLW’s vagina and he had sex with her. While JW was having sex with JLW, EW and I were allowed to leave the room and I got ready to leave and go home with Michael. Mum and Dad came out of the bedroom just when I was about to go home. Michael and I went home, but he didn’t ask me anything about what had happened.”

Neither JW nor JLW gave an account of any incident such as this.

There are features of this allegation that strain credulity. The family home is of modest dimensions and the internal walls appeared to be of fibro construction. The combined lounge/dining room opens onto a short hallway, which gives access to the master bedroom. On SW’s account she and her sister had been anally raped in a bedroom of the house while her partner sat in the lounge room apparently unaware that anything was amiss. After rejoining Michael for a time she left him to accompany her parents and siblings to the nearby master bedroom where her eleven year old sister was sexually assaulted. That JLW should have screamed out when subjected to simultaneous vaginal and anal intercourse is not surprising. That Michael sitting in the adjacent lounge room made no inquiry is. AW - the assault on 12 January 1994 at Manly Vale (OLC 5160/21)

The next charge was a count of sexual intercourse with SW without consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/21). It was particularised as occurring on 12 January 1994 at Manly Vale. It relates to the same event as was the subject of the first charge preferred against AW following his arrest on 19 April. The original charge sheets for the two charges preferred against him on that occasion were not in evidence. It was common ground that they did not form part of the charges before Magistrate Price at the committal hearing. A copy of the original charges described as the “informant copy” is exhibit D. The parties were agreed that I should approach the matter upon the basis that OLC 5160/21 was the charge proceeded with at the committal hearing and that the earlier charge had been withdrawn some time prior to the commencement of the committal hearing.

I have already detailed the allegations made in the Cruickshank statement upon which the first charge relating to events on 12 January was preferred. This is dealt with at paragraph [348] above.

In the second statement SW gave an account of the incident on 12 January that was broadly consistent with the version she had given in the Cruickshank statement. It did not, however, sit comfortably with the account that SW gave to Douglas Keir during a counselling session five days after the offence is said to have occurred. Mr Keir said that he received a telephone call around 12 January from SW telling him that something had happened and that her friend, Richard, had suggested that she contact him. She attended for a counselling session on 17 January. SW gave an account of the assault on 12 January to Keir: her father had called to her home and been on the verge of raping her when Richard walked in and saw what was happening. He had thrown her father out. As she sat afterwards on the couch crying Richard had comforted her and told her to call Mr Keir (first Keir statement, paragraph [50]).

In a further counselling session on 26 March, SW resiled from the account that Richard had turned up and saved her. She now said that her father had raped her on this occasion. AW - the assault on 5 March 1994 at Woolworths (OLC 5160/22)

The next charge was of an assault on SW at Brookvale on 5 March 1994 contrary to s 61 (OLC 5160/22). The evidence in support of this charge is contained in SW’s second statement at paragraph [117]. It was a matter that SW complained about in the Cruickshank statement at paragraphs [115] - [117]. In that account she said that on Saturday 5 March she had been shopping at Woolworths with Michael. They were walking along one aisle when her father passed her with JLW. As he got close to her he rammed his shopping trolley into her left hip. She had a problem of which all the members of the family were aware with both hips. Each had a tendency to dislocate when knocked. The assault caused her left hip to dislocate and she whacked it against a pole in order to knock it back into place. Her father walked off laughing. SW gave a consistent account of this incident in her second statement.

In his first statement Mr Keir recorded that during a session on 7 March SW had volunteered, “I saw my father at the shopping centre on the weekend” (at [95]). She told Mr Keir that he had run his trolley into her. She said her hip had been thrown out and that she had had to knock it back into place against one of the pillars.

MOD took a statement in narrative form from Michael on 29 May. He recorded the history of his relationship with SW. He made no reference to the assault in Woolworths. This assault is one of the few instances in which SW appears to have maintained a consistent account of events. It is one of the few instances when a witness is alleged to have been present. No attempt was made to obtain a statement from the witness as to his recollection of the event before the charge was laid. AW - the assault in the family home on 5 March 1994 (OLC 5160/23)

The next charge was a count of sexual intercourse with SW without her consent in circumstances of aggravation, contrary to s 61J(1) (OLC 5160/23). It was particularised as occurring at Beacon Hill on 5 March 1994. The evidence relied on in support of this charge is contained in SW’s second statement in paragraph [118]. SW said that later on the day of the assault in Woolworths she and Michael went to the family home for dinner. It was a celebration for her mother’s birthday. While she was in the kitchen with Michael her father asked, “How’s your hip?”. She did not answer him and Michael started talking about something else. Later that night, at around 9:00 pm, when Michael was with in the living room with JS, EW and JLW, she was told to go into the master bedroom because her parents wanted to see her. When she went into the master bedroom her father and her brother had sex with her. Her brother put his penis into her anus and her father put his penis into her vagina at the same time. When they finished they did the same thing to LW. After this SW was allowed to go home with Michael.

SW gave no version of this recent and somewhat extreme episode of sexual abuse in the Cruickshank statement. AW - the assault on 18 March 1994 (OLC 5160/24)

The next charge was a count of sexual intercourse with SW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/24). It was particularised as having occurred on 18 March 1994 at Manly Vale. A charge arising out of the same incident was the second charge preferred against AW following his arrest on 19 April (OLC 5160/2). This, like the first charge, was withdrawn at some time prior to committal. It is unclear why this charge and the first were not proceeded with and why charges identically framed appear to have been preferred at court on 23 June. I have already set out the evidence relied upon by MOD in support of this allegation as at 20 April, when the charge was preferred, at paragraph [350] above. I have set out the subsequent expanded version that SW was to give in the second statement at paragraph [312] above. The charges preferred against AW arising out of the allegations of EW AW - the assault on EW between 16 Oct and 31 Dec 1989 (OLC 5160/25)

I turn now to the charges preferred against AW at court on 23 June in which the complainant was EW. The first of these charged an indecent assault on EW, she being a person under AW’s authority, an offence contrary to s 61E(1A) (OLC 5160/25). It particularised an incident between 16 October and 31 December 1989 at Beacon Hill. The material relied upon in support of this charge is contained in paragraph [5] of EW’s statement of 10 May.

EW described the first time she recalled her father touching her in a way that she knew was wrong. She was aged about nine years. In this paragraph of her statement she gave an account that on occasions when throwing a ball, playing cricket, watching television or when she was having a bath her father would rub her on the outside of her clothing and between her legs on the outside of her undies or pants. He would take hold of her hand and put it on the outside of his clothes so that she could feel his penis through his clothes. She recalled that it was soft and felt funny. The event is particularised by reference to the fact that she was in Year 3 at the time and charges an offence on an occasion after her birthday. The account in the statement is generalised and does not identify a specific incident. AW charge - the assault at Christmas time when EW was required to use the vibrator (OLC 5160/26), (OLC 5160/27)

The next charge was a count of sexual intercourse with EW, she being under the age of ten years (eight to nine years) (OLC 5160/26). This offence was particularised as occurring between 1 December 1989 and 31 December 1990 at Beacon Hill. The material relied upon in support of it is contained in paragraph [2] of the statement made by EW on 7 June.

EW said that she had been dragged by her hair from her room by her father who took her to the master bedroom. He pulled down her pants and started licking and kissing her on the chest. He had licked her vagina and digitally penetrated her. He removed a vibrator from a drawer, saying to her, “Now put it in and out, do something good for a change”. He bent over the bed and she had pushed the vibrator in and out of his anus.

The allegation that AW made EW insert the vibrator into his anus was charged as an act of inciting EW to an act of indecency, she being under the age of sixteen (nine years) and under his authority, an offence contrary to s 61E(2A) (OLC 5160/27). AW - the assault in the bathroom when EW aged ten or eleven years (OLC 5160/28)

The next charge was a count of sexual intercourse with a person above the age of ten years and under the age of sixteen years (aged ten to eleven years) and under his authority, an offence contrary to s 66C(2) (OLC 5160/28). The evidence in support of this charge is contained in paragraphs [8] and [9] of the statement made by EW on 10 May. EW described an incident that occurred in the bathroom when she was in Year 5 at school. She had been in the bath with her back to the door. Her father came in and knelt by the bath and took hold of her ankles, spinning her around so that her legs were hanging over the side of it. He digitally penetrated her vagina. He had then licked her vagina. When she had tried to push his head away from her vagina he hit her. AW - the assaults in EW’s bedroom when she had chicken-pox: the first incident of anal penetration (OLC 5160/29), (OLC 5160/30)

The next charge was an allegation of aggravated indecent assault, an offence contrary to s 61M(1) (OLC 5160/29). This was particularised as having occurred between 17 March and 31 December 1991 at Beacon Hill. The flowchart that forms part of the Task Force Information Management System (TIMS) record suggests that this charge arises out of the incident that gives rise to OLC 5160/30, an offence of sexual intercourse with EW, a person above the age of ten years and under the age of sixteen (ten to eleven years) and under the authority of AW, contrary to s 66C(2). Curiously, the latter was particularised as having occurred between 1 January and 16 October 1991.

The evidence relied on in support of the two charges is contained in paragraphs [12] and [13] of the statement made by EW on 10 May. When she was in Year 5 she had time off school when she was suffering from chicken pox. During this time her father came into her room and pushed her onto her knees. He took hold of her hand and made her masturbate him. He ejaculated onto the carpet and instructed her to lick it up. He held the back of her head until she did so. It had been particularly awful since bits of the carpet had got into her mouth. While she was doing this he moved behind her and pulled her pants down and anally penetrated her. He then rolled her over and digitally penetrated her vagina and licked it. This was the first occasion on which she had been anally penetrated. It had felt as though her anus had been torn. She bled from the anus afterwards. Since that time she said she had been anally penetrated on about ten other occasions. AW - sexual intercourse with EW between 1 and 30 Nov 1992 (OLC 5160/31)

The next charge was a count of sexual intercourse with EW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/31). It was particularised as taking place between 1 and 30 November 1992 at Beacon Hill. It is associated with OLC 5159/12 charged against LW in OLC 5159/11. The evidence relied on in support of it is contained in paragraph [18] of EW’s statement made on 10 May. I have referred to this allegation at paragraph [125] above. AW - the assault on the day of SW’s first period (OLC 5160/32)

The next charge was a count of sexual intercourse with EW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/32). It was particularised as occurring between 1 and 30 November 1992 at Beacon Hill. It is associated with the incident charged against LW (OLC 5159/11). The evidence relied on in support of it is contained in paragraph [10] of EW’s statement of 16 May and in questions 14 to 19 of the interview conducted on 10 June. I have dealt with this allegation at paragraph [317] above. AW - the first occasion of penile/vaginal intercourse – after Mother’s Day 1993 (OLC 5160/33)

The next charge preferred against AW at court on 23 June was of sexual intercourse with EW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/33). It was particularised as occurring between 1 May and 30 June 1993 at Beacon Hill. The material relied on in support of this charge is contained in paragraphs [15] - [17] of the statement made by EW on 10 May.

In this statement EW said that the first time she recalled having vaginal sex with her father was on an occasion after Mother’s Day 1993. It was the day before she performed in the local Eisteddfod. She had been lying on her parents’ bed watching television. Her father came into the room and started getting undressed. He took her pants off and had penile/vaginal sexual intercourse with her. AW - the abortion (OLC 5160/34)

The next charge was of assault occasioning actual bodily harm to EW, provided by s 59 (OLC 5160/34). This was particularised as having occurred between 1 November and 25 December 1993 at Sydney. The material relied on in support of this allegation is contained in paragraphs [20] - [22] of the statement made by EW on 10 May. This allegation relates to EW’s account of having been taken to a home somewhere in Sydney where an abortion was performed on her on a kitchen or dining table.

In her first statement EW said that she thought she may have been pregnant prior to Christmas 1993 because she had not had a period for six weeks. She said that she had written a letter to Dolly magazine asking for advice. She posted the letter from a post office located at a distance from the family home so that it would not be traced back to her. Her mother bought a home pregnancy test and tested her urine. The result was positive. The following weekend her parents took her to a house (she had been taken to this house several times before) at which a man and a woman lived. She was made to remove her pants and to lie on the dining table. Her parents stood on either side of her while the woman watched. Her legs were spread apart and she felt a sharp, horrible pain between them. It was the worst pain she had ever felt. Her parents were holding her down and when she screamed again, father struck her a blow and everything went blank. She woke up in her bed later with a bad headache and pain in the lower part of her body. For a time after this she had bleeding from the vagina and a yellow and white puss-like vaginal discharge.

In her second statement EW gave a somewhat different account of the pregnancy test in November 1993. She said that a man had come to the family home and examined her, making her urinate into a little cup. He left her bedroom and told her mother that she was pregnant. The following weekend she was taken to the house where she had been made to lie on the kitchen table and the abortion had been performed on her.

Notwithstanding EW’s later admission of having made up her account of being pregnant and writing the letter to Dolly magazine, this charge was maintained until AW was discharged in respect of it at the conclusion of the committal hearing. AW - sexual intercourse with EW between 1 and 19 April 1994 (OLC 5160/35), (OLC 5160/37)

The next charge was a count of sexual intercourse with EW without her consent in circumstances of aggravation, an offence contrary to s 61J(1) (OLC 5160/35). It was particularised as having occurred between 1 and 19 April 1994. AW was also charged at court on 23 June with a further offence of sexual intercourse with EW without her consent in circumstances of aggravation, contrary to s 61J(1) (OLC 5160/37), arising out of the same incident. These offences relate to the same allegations as formed the basis of OLC 5159/14 against LW. I have dealt with this material in paragraphs [325] - [328] above. AW - the last time EW was made to masturbate AW (OLC 5160/36)

The next charge was a count of aggravated indecent assault on EW under s 61M(1) (OLC 5160/36). This offence was particularised as occurring between 1 March and 19 April 1994 at Beacon Hill. The material relied on in support of it is contained in paragraphs [10] – [11] of EW’s statement made on 10 May. In this statement EW gave an account that after the first time she had been required to masturbate her father it had happened frequently. Subsequently, Detective Hill asked her when the last time was that she had been made to do this and EW said, “About a month before Annie got me” (record of interview 15 June, A 52). This was a reference to one of the DOCS officers. EW said that this last incident had occurred in her bedroom when she was watching television. The charges brought against AW relating to offences against SS AW - homosexual intercourse with SS (OLC 5160/38)

The next charge was a count of homosexual intercourse with SS, a male under the age of ten years (eight years), an offence contrary to s 78H (OLC 5160/38). It was particularised as having occurred between 1 and 31 January 1988 at Beacon Hill. The material relied on in support of this charge was contained in paragraphs [8] and [9] of a statement made by SS on 19 May 1994.

SS claimed that the night before a holiday to Murrurundi his aunt, LW, had given him a drink that she described as “children’s wine”. He said he could not remember much after this except that he had been face down on the bed in JW’s bedroom and that his uncle, AW was on top of him and that he had his arms held behind his back. He could remember feeling something pushed inside his bottom, which he thought must have been his uncle’s penis. This event occurred when he was eight years old. There had been further trips to Murrurundi at Christmas time when he was aged nine, ten and eleven years, but SS was not able to remember if anything had happened on these occasions. AW - inciting SS to an act of indecency with another person (OLC 5160/39)

The next charge was a count of inciting SS to an act of indecency with another person, he being under the age of sixteen (eleven years), an offence contrary to s 61E(2) (OLC 5160/39). This offence was alleged to have occurred between 1 and 31 January 1991 at Murrurundi. The material relied on in support of this allegation is contained in paragraphs [9] - [13] of the statement made by SS on 8 June.

In an interview with MOD on 8 June, SS said that he was now able to recall something that occurred when he was eleven years old. He explained that it was not that he had been unable to remember the incident earlier, but that he had not felt good about talking about it. In January 1991 he had gone on a holiday to Murrurundi with the W family. During a family BBQ AW had said to him words to the effect, “I want you to do something. I want you to touch EW tonight.” AW had gone on to say, “If you don’t do it I will think of something”. He said, “I will be watching.” He reported that that night he had touched EW on the vagina and that she had touched him on the penis. AW - the assault on KS (OLC 5160/40)

The last charge preferred against AW at court on 23 June was a count of an indecent assault committed on a person under the age of sixteen (eight years), an offence contrary to s 61E(2). (OLC 5160/40). The charge was particularised as having occurred between 1 and 31 December 1989 at Beacon Hill. This charge was withdrawn on 28 March 1996 at the committal hearing and OLC 5160/45 was substituted for it. The material relied on in support of this charge is contained in Q and A 9 – 40 of an interview conducted between Detective Hill and KS on 10 June.

In their interview, KS said that around Christmas one year when she was at the W family home AW told her to go into the master bedroom because he wanted to show her something. While in the bedroom he lifted up her dress and touched her on the vagina. She could not recall whether he had touched her inside or outside her underpants. AW had said to her, “Now don’t tell anyone and get out”. THE 23 JUNE CHARGES: REASONABLE AND PROBABLE CAUSE

I have detailed the evidence that was available to MOD as at 23 June in relation to each charge preferred against AW and LW. In each case the prosecution was dependent on the unsupported evidence of the complainant. The plaintiffs’ claims of malicious prosecution require that they establish that there was an absence of reasonable and probable cause in instituting the prosecution.

It is necessary to give consideration to MOD’s belief and to the material available to him on 23 June with respect to each of the charges. In the defendant’s submission the inference to be drawn was that MOD was possessed of a belief in the probable guilt of AW and LW of the allegations made by the six complainants and considered that their prosecution was warranted. This was the inference to be drawn so it was submitted because objectively there was reasonable and probable cause for the institution of the prosecution of each of the charges against the two plaintiffs. This provided independent support for an acceptance of MOD’s evidence that he was possessed of the requisite belief.

With respect to the charges against AW arising out of the complaints made by SS and KS it seems to me that there was objectively reasonable and probable cause to institute the prosecution. There was the possibility that each had been contaminated by the hothouse atmosphere in the S family home in the period after 19 April when SW and EW came to stay in the midst of the family break-up. However, there was no reason to conclude that either complainant was not credible. I am not satisfied that there was an absence of reasonable and probable cause with respect to the institution of the prosecution of charges arising out of the complaints made by SS and KS.

I propose to deal with significance of the pressure applied to JW in the 29 April interview below in the context of the submissions that were advanced on the question of malice. I accept that Detective Yeomans believed that JW’s allegations were truthful (I will deal with the significance of the pressure that he applied to JW during the 29 April interview below) and that LW’s prosecution in respect of them was warranted. I am satisfied that he conveyed that belief to MOD. Subject to the significance of the pressure that Detective Yeomans applied to JW before he made his allegations, I am not satisfied that there was an absence of reasonable and probable cause with respect to the institution of the prosecution of LW in respect of the allegations made by JW.

The charges preferred against AW and LW based on the unsupported account of SW raise different considerations. SW had given inconsistent accounts to the police on occasions when she understood that she was under an obligation to tell the truth. The charges depended upon an acceptance of her evidence alone.

One explanation for SW’s failure to complain of her mother’s misconduct in the Cruickshank statement is that children and young persons exposed to a long history of sexual abuse may disclose the details of it selectively as they build trust in those investigating their complaint. A person of ordinary prudence and judgment might conclude, with this in mind, that SW’s subsequent allegations of maternal sexual abuse warranted LW’s prosecution notwithstanding the non-disclosure in SW’s first interview with the police.

SW’s version of a number of incidents varied between the Cruickshank statement and the second statement in respects that are not susceptible of the explanation that she unwilling to disclose the maternal abuse in her initial interview. In more than one instance SW provided a detailed version of an episode of abuse in the Cruickshank statement and an entirely different account of the same episode in the second statement. SW’s reticence with respect to the maternal abuse seems an inadequate explanation for the fact, for example, that on 30 March she told Detective Cruickshank that on her ninth birthday she had been forced to fellate her father and a matter of weeks later she gave a completely different version of the nature of the abuse and the identity of the abuser. One explanation is that persons subjected to repeated sexual abuse over many years may confuse episodes of abuse when recounting the history. This explanation does not lend itself readily to the differing versions offered by SW with respect to the assault on 18 March. It had, after all, occurred less than a fortnight before SW made her complaint to the police.

In the past, complaints by children of sexual molestation were often not acted upon by the police. On occasions when such cases did come before the courts, the evidence of child complainants was treated with a degree of caution that is today seen as misconceived. The rule that required corroboration of the unsworn evidence of a child and the practice of warning a jury that it is unsafe to convict on the uncorroborated evidence of a child no longer form part of the criminal law of this State and did not form part of it in 1994. The fact that a child or young person may not make a complaint about a long history of abuse is well understood. It would be wrong for the police to dismiss a complaint of sexual abuse because it sounded improbable. However, it is one thing for an investigator to keep an open mind when dealing with complaints, including those that appear bizarre, and it is another to institute a prosecution for a criminal offence on the strength of an unsupported complaint that is incredible. The allegations that SW made in the second statement concerning the assault committed on 18 March seem to me to be of the latter kind. No matter how credibly SW may have presented in giving MOD her account of the assault on 18 March, he had available to him the version of the same incident that she had given to Detective Cruickshank a matter of weeks earlier. I have set out two versions at paragraphs [312] and [350] above. I consider that on the materials that were available to MOD as at 23 June a person of ordinary prudence and judgment would not have concluded that the prosecution of AW or LW for the alleged assaults on 18 March was warranted. I am of the same opinion with respect to the charges arising out of SW’s complaint concerning the assault on her ninth birthday, the assault on the day that she was caught smoking, the assault on the night she moved back to the family home and the assault on JLW’s eleventh birthday.

The charges arising out of the complaints made by EW are subject to the same general observations as those arising out of SW’s complaint. It is to be noted that as at 23 June EW had not retracted her account of undergoing an abortion nor the allegation that her mother had removed blood from her breast with a syringe. Her allegations were bizarre, but as at the date that the prosecution was instituted on her complaint, she was not an admitted liar.

The complaint that EW made concerning the assaults to which she had been subject in the week prior to being taken into care were troublingly inconsistent. EW was describing events that had occurred relatively recently. I consider that a person of ordinary prudence and judgment considering the materials available to MOD on 23 June would not have concluded that the prosecution of either AW or LW on the charges relating to the sexual assaults in April was justified. I am of the same opinion with respect to the allegations made by EW concerning the assault on the day she had her first period.

The stark and unsatisfactorily explained inconsistencies in the accounts given by SW and EW that lead me to consider that particular allegations made by each of them were incapable of affording proof of guilt on the criminal standard without independent support must affect the weight that any rational trier of fact would accord to other of the allegations made by them. I have concluded that there was an absence of reasonable and probable cause with respect to the charges that were based on the complaints of SW and EW.

In coming to these conclusions I have not overlooked the report of Dr Quadrio dated 20 October 1995. In it she expressed opinions concerning both SW’s credibility and the probability of the W children making up allegations of such complexity, in light of an interview with SW and having read the statements of EW and JLW. Dr Quadrio is a psychiatrist whose statement of qualifications refers to her years of experience, particularly with respect to post-traumatic stress syndromes and the sequale and child and adult sexual abuse. To my mind, the contents of Dr Quadrio’s report does not touch on a consideration of whether the unsupported evidence of SW or EW was capable of establishing their complaints, that I have referred to in paragraphs [451] and [453] above, upon the criminal standard of proof.

I should also record that in coming to these conclusions I have not overlooked that Mr Walsh submitted a “no bill” application to the Director dated 13 February 1996 on behalf of the plaintiffs in which he detailed the inconsistencies in SW’s and EW’s accounts of these incidents and that a determination was made to proceed with the prosecutions in each case. THE 23 JUNE CHARGES: THE EXISTENCE OF MALICE

It is necessary to determine whether AW and LW have established that MOD was actuated by malice in his decision to institute the prosecution of the charges against them on 23 June for which there was no reasonable and probable cause. I now turn to a consideration of the competing submissions that were advanced by the parties with respect to proof of this element of the tort. The formation of Task Force Maitland

In the defendant’s submission, one matter that pointed strongly against an acceptance that MOD had been actuated by any improper or collateral motive in instituting the prosecution of charges against each plaintiff was the evidence that he did not know any member of the W family before he was assigned to the investigation of SW’s complaint and that after coming to an appreciation of the size of the investigation he had sought to have it taken over by others.

MOD gave evidence that he had contacted Constable Crawford at the CMU, Chatswood to see whether the CMU was in a position to take over the W investigation. His duty book records a telephone contact with Constable Crawford on 3 May 1994. He was given to understand that the CMU was not in a position to take over the investigation because of its limited staffing.

Detective Holloway was attached to the CMU. He had some recall that MOD had suggested that the W inquiry be taken over by the CMU. He had indicated that this would not be possible because of the CMU’s existing commitments. At the time he and Detective Crawford were the only permanent staff attached to the CMU.

MOD’s duty book records that he made telephone contact with a person attached to Task Force Colo on 3 May. He said that he knew that Task Force Colo was investigating a number of sexual assaults and that he telephoned to see whether the allegations made by SW would fall within its terms of reference. He was unable to recall with whom he had spoken. In the event, Task Force Colo did not take over the investigation of the complaint.

On 24 May Assistant Commissioner Donaldson convened a meeting to consider the future conduct of the W investigation. A number of senior officers attended the meeting including Detective Inspector Ron Smith from the Crime Squad North Region. At this meeting it was decided that the investigation would be carried out by a Task Force to be named Task Force Maitland.

Detective Inspector Smith was appointed Task Force Commander and MOD was appointed as the Case Officer. Detective Inspector Smith was stationed at the Major Crime Squad North, Chatswood. He remained based at his Chatswood office. The Task Force was based at the Dee Why Police Station. Detective Inspector Smith received weekly situation reports on the progress of the investigation.

Detective Yeomans and Detective Hill were both assigned to the Task Force to assist MOD together with a small number of more junior officers. An analyst was allocated to the Task Force who collated the information collected during the investigation using TIMS. The computer generated TIMS running sheets were tendered. They comprise seven lever arch files. The investigation was documented by the analyst in what appears to be a comprehensive manner.

MOD said that he had done nothing to bring about his appointment to the role as Case Officer for Task Force Maitland. He said that he had been hopeful that the investigation would have been taken over by the North Region Crime Squad or at State Command level. In his view the resources allocated to the Task Force were inadequate. He had not expressed these views at the meeting on 24 May since he was a relatively junior officer.

MOD briefed those present at the meeting on 24 May on the suggestion of ritual sexual abuse arising out of the investigation. He had taken a lengthy second statement from SW. He was the person with detailed knowledge of the allegations that had been made by SW and her siblings. I see no reason to conclude that it was to be expected that the investigation would be taken out of the hands of the detective sergeant who was most familiar with it and who had established a rapport with the principal complainant. I do not accept MOD’s untested evidence that he had wished the investigation to be taken over by the Regional Crime Squad or at State Command level. I do not draw the inference from the fact of MOD’s telephone contact with officers attached to the CMU at Chatswood, or from the formation of Task Force Maitland that MOD was active in seeking to divest himself of the investigation. MOD’s referral of Task Force Maitland’s investigation to the Royal Commission into the New South Wales Police Service

Following the termination of the committal proceedings in favour of LW, JS and AW (save for the one charge involving SS), MOD prepared a report on Task Force Maitland dated 1 July 1997. He set out the history of the investigation, the care proceedings, the committal proceedings and his views on aspects of the investigation in the context of child complainants and related care proceedings. MOD gave evidence that he had made contact with investigators attached to the Royal Commission into the New South Wales Police Service and subsequently with the Police Integrity Commission about Task Force Maitland. His report was made available to these bodies. In the report MOD expressed his view that the investigation may have been compromised.

The defendant contended that MOD’s conduct in the compilation of the report and in the referral of aspects of the Task Force Maitland inquiry to the Royal Commission should be seen as inconsistent with a conclusion that he had been motivated by any improper or collateral motive in the conduct of the investigation and in the institution of the charges against the plaintiffs.

MOD’s conduct following the termination of the committal proceedings does not seem to me to cast light on the question of whether he acted with malice on 23 June (or 15 September) in instituting the prosecution of charges against the plaintiffs. The report is, in a number of respects, a self-serving document. Annexed to it is a document setting out MOD’s account of the impact of the Task Force Maitland inquiry on him. It includes reference to various psychological symptoms that he claims to have suffered in consequences of the strain imposed on him by this investigation. I have already noted that MOD sought and obtained a discharge from the Police Service on the strength of having been hurt on duty as the result of his work with Task Force Maitland. The other officers’ assessment of the credibility of the complainants

In the defendant’s submission it was relevant to have regard to the opinions of Detective Yeomans of the credibility of the complaints made by JW and Detective Hill of the credibility of the complaints made by EW. Each was working with MOD and each conveyed his or her opinion to him. It was reasonable to infer that MOD had regard to the opinions of the officers who interviewed the children in coming to his view that the evidence warranted the prosecution of AW and LW. Upon an acceptance for present purposes that the complaints of SW and EW at least with respect to the charges to which I have referred above was at 23 June lacking reasonable and probable cause, it was submitted that I would not draw an inference that MOD was motivated by some improper purpose because it was apparent that the other investigators believed the prosecution of AW and LW to be warranted.

I will consider the question of whether Detective Yeomans was actuated by malice arising out of my findings with respect to the conduct of the 29 April interview with JW separately.

Before turning to Detective Hill’s opinion of EW’s credibility it is necessary to say something about the flow of information within Task Force Maitland. To the extent that resources permitted, different officers were assigned to the interview of each of the complainants.

The statements taken by the officers attached to Task Force Maitland were given to MOD who stored them in a locked metal cabinet at the Task Force office. Strict document control measures were adopted. MOD had the key to the cabinet in which the statements were kept. (The analyst assigned to the Task Force appears to have had access to all the investigation material including the statements since these were entered into TIMS).

MOD was the only officer who was fully conversant with the allegations made by each of the complainants. It appears that a decision was taken not to inform the other officers attached to the Task Force of the allegations that each of the complainants had made. Detective Hill said that this was done to avoid the risk of contamination. A by-product of this approach was that none of the officers, save for MOD, appear to have known whether any of the allegations made by a complainant from whom they were taking a statement was supported by the account given by other complainants.

In Detective Hill’s opinion the lack of information about the allegations made by other complainants did not pose any difficulty in the conduct of her investigations. The circumstance that a child might not refer to a particular incident (notwithstanding that other evidence tended to suggest the incident had occurred) was to be expected in dealing with child complainants. As I understood it, in Detective Hill’s opinion the circumstance that SW and EW each came to give differing accounts of group sexual assaults involving the children, and that the other children gave no such account, was not a matter to which she attached weight in coming to a view about EW’s credibility.

Detective Hill said that throughout her dealings EW had expressed a deal of emotion about her family. She was missing them and she loved her mother. Given this background, Detective Hill was inclined to ask herself why EW would make the allegations that she was making and what motive she might have to make false allegations if she did not believe the things she was saying to be true.

One matter bearing on Detective Hill’s assessment of EW’s credibility was her understanding that research suggested that children do not have the capacity to make up extreme allegations of this kind. As I understood her, Detective Hill was influenced by her acceptance of this research notwithstanding that EW, on any view of the matter, had shown herself capable of telling elaborate lies about sexual matters. Detective Hill maintained that she had believed what EW was telling her to be truthful. She conveyed to MOD that, in general, she could see no reason to doubt what EW was saying.

Detective Hill was challenged about the failure to follow up EW’s allegation that every time she had her period she was sexually assaulted by each of her siblings, her grandmother and her parents in the presence of each other. It was suggested that it would have been an easy matter to determine whether any of the other siblings offered accounts consistent with this allegation. Detective Hill did not know what had been said by the other children. It would not have been appropriate, in her opinion, for a police officer to ask a child as young as eleven whether a particular form of sexual activity had taken place. An answer obtained to a leading question of that character would be of no value. It is to be observed that the Child Abuse Investigation and Management Guidelines provided that it was inappropriate to put allegations to a child that had not previously originated from the child (paragraph [7.10]).

Detective Hill did not know that EW’s initial allegations had been made in response to leading questions asked in an interview by a DOCS’ officer until the later court proceedings. Thus, although she was the officer principally concerned in investigating the allegations made by EW, she was not made privy to the circumstances in which those allegations had come to be first made. MOD was aware of these circumstances.

Detective Hill’s assessment of EW’s credibility was such that she considered EW believed a number of her allegations to be true. I accept that this was her assessment. It was one that was formed as I have noted on incomplete information and did not focus on the question of whether, notwithstanding EW’s belief that some of the things she was saying were true, there was justification for instituting a prosecution in respect of a particular complaint on the strength of EW’s unsupported account. The circumstance that Detective Hill was of the opinion that EW believed at least some of the allegations that she was making to be true does not seem to me to assist in determining whether MOD who was in possession of all of the relevant material acted with malice in determining to prosecute AW and EW on charges arising out of the complaints that EW made. MOD’s relationship with SW: the evidence of EW

It is the plaintiffs’ case that MOD developed an attraction towards SW by late April/May that had become unprofessional, in that it had clear sexual overtones. The submission was that it had become a sexual relationship by June. The maintenance of the prosecution of the charges against AW and LW that were laid on 19 and 20 April and the institution of the prosecution of the further charges against each of them on 23 June are submitted to have been motivated by a collateral or improper purpose, namely, MOD’s desire to foster his relationship with SW.

MOD denied that there had been any unprofessional element to his relationship with SW throughout the period of the investigation and the related court proceedings. It was his account that some time after the conclusion of the committal hearing he met SW by chance and, over time, they formed an intimate relationship.

As at February 2004 MOD and SW were still living together in a de facto relationship.

The only direct evidence suggestive that an intimate relationship between MOD and SW had developed during the course of the W investigation came from EW. Contact between EW and her parents was resumed not long before the hearing of these proceedings commenced. At this time EW was married and living in a regional centre in New South Wales.

Around Christmas 2002, on a visit to the family home, EW told her mother that SW was involved in a relationship with MOD and that the two of them had attended her wedding. At the time of this disclosure EW was aware that her parents had commenced the present proceedings.

EW gave evidence of seeing SW and MOD on an occasion during the investigation when she was living with her uncle and aunt on the Central Coast. She thought that this had taken place at a time prior to her making her first statement on 10 May 1994. SW had come to visit her and EW was “fairly sure” that MOD had driven her. SW and MOD were behaving in an affectionate way in her presence when they were “just outside the house”. The two of them were hugging and holding hands. SW told EW that she really liked MOD and that she had never felt this way about anybody else. She said that she knew it was wrong and that no one could know because MOD was a police officer involved in the case.

EW said that SW had told her that she loved MOD and that she was sleeping with him. She thought that SW had said this to her in 1994 but she was not able to say exactly when.

During the committal hearing EW stayed in the same house as SW for about a week. During this period EW said that SW received telephone calls from MOD every night. The calls lasted for about half an hour. EW claimed that she had heard SW saying that “she loved him and she wanted everything to be over so they could be together” (T 653.10 – 11).

EW identified a number of photographs of MOD with SW. The earliest photograph depicting the two together on a social occasion was at EW’s eighteenth birthday party. This would have been around October 1998.

EW said that she had stayed overnight at MOD’s Narrabeen apartment. On these occasions SW slept in the master bedroom with MOD. EW had also stayed with MOD and SW at premises on the far South Coast.

EW was an unsatisfactory witness. She was cross-examined at length concerning the allegations that she had made in her statements to the police. She was unable or unwilling to offer any explanation for having made them. She was reluctant to acknowledge that she had made some of the allegations contained in her statements. I am satisfied that she did make all of the allegations contained in her statements. On more than one occasion when it was put to EW that she knew her allegations were harmful to her father she responded by saying, “I’m not sure”. This was disingenuous.

EW acknowledged that in a statement made on 24 June 2000 to Mr Walsh, the plaintiffs’ solicitor, she had given an account that at a conference with the Crown Prosecutor and another lady prior to the committal proceedings she had been told that she had to stick to her story or otherwise she would get into big trouble. In evidence EW maintained that she had been given advice of this character in a conference with the Crown Prosecutor before the committal hearing and that she had felt intimidated by it. Indeed, she agreed she had felt so intimidated that she had lied at the committal hearing. She also maintained that she had told various police officers, including Detective Hill, that the allegations that she had made in her statements (apart from those the subject of the retractions) were false. I did not accept EW’s evidence in either of these respects.

In the course of final submissions Mr Campbell contended that I would accept EW’s evidence concerning the relationship between MOD and SW because she had not been challenged on this aspect of her account. It is necessary to say something about this submission in order to put it in context.

EW’s cross-examination commenced on the afternoon of Wednesday 3 September 2003 and continued throughout Thursday 4 September. Before the morning adjournment on the second day of cross-examination counsel was taking her to each allegation that she had made in the course of one of her many statements. She was repeatedly invited to explain why she had told each lie in the statement. This elicited answers such as “I’m not sure” and “I don’t know”. She became noticeably distressed and it was necessary to enquire if she needed a break (T 686.23-25). She responded that she wished to continue and that she “just want to get it over with” (T 686.26). Counsel resumed with the line of cross-examination that he had been developing before EW lost her composure. Shortly after this Mr Bartley objected, submitting that the cross-examination was “unnecessarily offensive” and that it did not go to an issue since no one was asserting that EW had told the truth to the police officers. The cross-examination seemed to me to have had substantial probative value with respect to EW’s credibility and I allowed it. The objection is recorded at T 687. A further submission relating to the cross-examination is recorded at T 699.

Cross-examination continued after lunch with EW responding increasingly frequently to questions with “I can’t remember” or the like. On more than one occasion it was apparent that EW was somewhat distressed. The quality of her evidence is reflected in the exchange at T 710.30-57: “Q. Now you’ve just, if I understand you correctly, said to me that you did not – it is not a matter of not remembering – you did not give the facts, tell this information to Julie Hill, is that what you tell me? A. I don’t know, I can’t remember any of this. Q. You can’t remember, but you just said to me ‘no’, you didn’t, a minute ago? A. I can’t remember any of this. Q. Why did you say to me ‘no’? A. I don’t know, I just – I cannot remember this stuff and I don’t know how many times I have to say it. It can’t remember. Q. But you didn’t say ‘I can’t remember’ you said, ‘no’ you see? A. Well, I mean I cannot remember, I cannot remember. Q. Can I ask you this then, why when the truth was you can’t remember did you give me the answer ‘no’? A. I was confused at your question. I cannot remember this. I am confused with all of this. I cannot remember it. Q. Do you tell me you cannot recall ever being interviewed by Julie Hill? A. I cannot remember this, I remember.”

There was a deal more in this vein.

On the morning of Friday 5 September before resuming the cross-examination of EW I indicated to the parties a provisional view that, having regard to the fact that EW had told lies on a previous occasion when under an obligation to tell the truth and in light of the quality of her evidence given the previous day, it would be difficult to accept an assertion made by her in the absence of independent evidence (T 729-735). The parties sought and were given a short adjournment to consider the position. On the resumption of the hearing Mr Donovan stated that he had determined not to ask further questions of EW. Mr Bartley indicated that on the plaintiffs’ behalf no point would be taken with respect to the failure to take up with EW each previous representation about which EW was said to have lied. He did not make such a concession with respect to her evidence about the relationship between SW and MOD. However, it is appropriate to note that he went on to foreshadow that on the plaintiffs’ behalf it would be put that other evidence would establish that by 9 May EW was a deeply emotionally and psychologically disturbed thirteen year old and (at T 733.30): “That is we expect to be able to lead evidence, we will be leading evidence which we would hope would ultimately persuade your Honour that EW could not be held entirely responsible, perhaps not responsible at all for her mental state at the time of making those statements. We’ve raised that with Mr Donovan. Obviously that doesn’t lead, I would have thought, to the need for any further cross-examination. To be fair to my friend, that is the position that we will be seeking to develop in relation to your Honour’s, if I may say so, fairly communicated preliminary view.”

Mr Campbell did not put any submission on behalf of JS qualifying that put by Mr Bartley on behalf of AW and LW in this respect. In light of the submission that I have set out above made in the context of the discussion at the commencement of the hearing on 5 September, I do not consider that counsel’s failure to cross-examine EW on her evidence concerning the relationship between MOD and SW should lead to an acceptance of it being unchallenged.

I am mindful that EW was a child of thirteen when, for whatever reason, she told elaborate lies about her parents and grandmother. I recognise that it may be difficult for her to come to terms with the harm that she did to them. Nonetheless, her unwillingness or inability to offer an explanation for her behaviour, her reluctance to admit that she was the author of a number of the false allegations contained in her statements and the impression that I formed of her led me to conclude that she was unreliable and that her evidence was not to be accepted in the absence of independent evidence to support it.

The plaintiffs submitted that independent support for EW’s evidence that an inappropriate relationship between MOD and SW was in existence at late April/May was to be found in the following: (i) MOD’s visit to the Central Coast with SW to visit on Sunday 8 May 1994, recorded in his duty book (this was before EW made her first police statement); (ii) The circumstances surrounding the taking of the statement from SW dated 26 April 1994; (iii) Photographs eloquent of MOD and SW being a couple as at October 1998. (iv) Statements made by MOD to his psychologist in the course of counselling sessions. The circumstances surrounding the taking of SW’s second statement

SW’s second statement is dated 26 April. It was commenced on that day and took a further twelve days to complete. It comprises forty-five typewritten pages. It is in narrative form and details in chronological order a history of sexual abuse involving both AW and LW from the time SW was aged five years until March 1994.

The amount of time devoted by MOD to taking the second statement and the circumstances in which it was taken are said to support the inference that by Sunday 8 May, when he drove SW to the Central Coast to visit EW, there was an unprofessional relationship between the two of them.

There is a record of the dates and times when the taking of the second statement was resumed and suspended. An examination of MOD’s duty book suggests that his predominant activity on Tuesday 26 April - Friday 29 April, Monday 2 May - Friday 6 May and Monday 9 May - Thursday 12 May was the taking of the second statement. On each of these days he drove to Collaroy Plateau and collected SW from her accommodation and took her to the police station. There she remained for a good part of the day until she was driven back to her accommodation by MOD. No other police officer was present during the interview or the journeys to and from SW’s accommodation.

Detective Cruickshank had found it difficult to take the statement from SW: there had been frequent breaks to allow SW to smoke a cigarette or to regain her composure. The Cruickshank statement was also lengthy (around two thirds the length of the second statement). It was completed in two days.

The amount of time spent by MOD taking the second statement and generally attending to SW’s welfare in the period 26 April to 17 May 1994, making allowance for her distress and difficulty in disclosing matters, was very considerable. During this time he arranged for the care of her pets, took her to the Department of Social Security to help her make an application to obtain welfare benefits and drove her to collect her belongings from various places. In the period between 26 April and 16 May an examination of MOD’s duty book and the second statement suggests that he spent something in the order of 100 hours in SW’s company. For much of this time MOD was relieving as the Chief of Detectives at the Dee Why Police Station, which, no doubt, imposed added responsibilities on him. MOD complained of the shortage of resources available to him to carry out the investigation. Notwithstanding this he devoted his entire duty on Sunday 8 May to collecting SW from her accommodation and driving her to and from the Central Coast so that she could see her sister. He did this, he said, in an attempt to restore some normality to the girls’ lives.

Detective Senior Sergeant Sterling, the manager of the Joint Investigation Response Team with the Child Protection and Sex Crime Squad, saw nothing inappropriate about the fact that the interviews conducted by MOD with SW had been concluded without a support person or other officer present. In her opinion it was not inappropriate that MOD should have driven SW to and from her accommodation by himself. Detective Sterling noted that SW was aged eighteen at the time and that there had been no requirement to observe the protocols designed for the interviewing of child complainants.

At the time of this investigation MOD was receiving counselling from a psychologist employed by the Police Service. On 18 May 1994, two days after SW signed the second statement, MOD attended a counselling session with the psychologist. She recorded the following notes of the session held on that day: “MOD has picked up a CSA – ritual abuse case from OIC. Developing heavy victim involvement? Over involvement & possible transference problems. Pointed out to him need to maintain objective collegiate RP. Will need de-brief of heavy emotional reactions to child trauma esp. given his own physical abuse history.”

MOD explained the reference to a history of physical abuse as being to his father’s use of physical discipline when he was a child. There is no evidence that MOD was the subject of sexual abuse. Conclusion – the commencement of the relationship between MOD and SW

The four matters relied upon by the plaintiffs as tending to support the acceptance of EW’s evidence (that by the date of the trip to the Central Coast on 8 May MOD had formed an unprofessional relationship with SW) do not seem to me to admit of that conclusion as a matter of probability.

EW’s evidence that MOD was holding hands and hugging SW in her presence on 8 May seems to me to be inherently unlikely. MOD was a detective sergeant of police with a reputation as a competent investigator. If as at 8 May he had commenced an improper relationship with the teenage complainant in a sexual assault investigation that he was conducting I think it unlikely he would have flaunted that fact in front of her thirteen year old sister.

SW’s uncle and aunt saw MOD in company with SW on 8 May and on other occasions in connection with the investigation. They observed no difference between his treatment of SW and his treatment of the other complainants.

MOD spent an inordinate amount of time with SW in taking and reviewing the second statement. He was notably solicitous of her welfare. It is probable that MOD was in some fashion attracted to her. The contents of the psychologist’s notes seem to be to be consistent with such a view. The fact that MOD raised with a psychologist employed by the Police Service his awareness of the degree of his “victim involvement” does not seem to me to support the inference the he was at that time in an intimate relationship with SW.

The photograph of SW and MOD taken at EW’s eighteenth birthday does not assist to establish when their sexual relationship commenced. It is to be observed that the attractive young woman shown in the photograph does not necessarily correspond with the labile, chain-smoking, anorexic girl that Detective Cruickshank described.

The plaintiffs submitted that I would more readily draw the inference that the relationship between MOD and SW had become an intimate one around May 1994 because the defendant did not call SW to contradict the evidence given by EW on this topic: Jones v Dunkel (1958-1959) 101 CLR 298 per Kitto J at 308.

EW’s evidence of the nature of the relationship between MOD and SW consisted of both her observations of the two of them on the occasion when they visited her on the Central Coast (and on subsequent occasions when she saw them together) and of the representations made to her by SW. The latter evidence was admitted over the defendant’s objection pursuant to the provisions of s 63 of the Evidence Act 1995 upon the basis that SW was a person not available to give evidence about an asserted fact: AJW v State of NSW [2003] NSWSC 803.

After EW’s evidence of SW’s previous representations was admitted, MOD gave evidence in the defendant’s case. It emerged at that time that SW and he were living together in a de-facto relationship. It was not clear that the defendant was aware of MOD’s address (or that MOD was living with SW) at the time when EW gave evidence. As I understand the plaintiffs’ submission, by the time MOD was called, although his address was confidential, it was reasonable to assume that the defendant could have arranged for the service of a subpoena on SW. In the course of closing submissions it was put that SW was a person “in the camp of the defendant” (T 2872).

The first time that the question of the failure of the defendant to call SW was raised was in closing submissions. Notwithstanding that it emerged in the course of MOD’s evidence that he was living in a de facto relationship with SW, I am not of the opinion that she is to be viewed as being necessarily in the camp of the defendant. I am, in any event, of the view that the evidence falls short of giving rise to an inference that as at May-June (or September) there was an intimate relationship between MOD and SW. The evidence does not enable me to determine when the sexual relationship between MOD and SW commenced. I do not find that an intimate relationship had been formed between them at any time in 1994. The suggestion that SW’s second statement was crafted by MOD

Both the Cruickshank statement and SW’s second statement were taken in narrative form. There is nothing to inform the reader of what, if anything, prompted the recounting of the events recorded. This was the subject of criticism. The Police Service’s Child Abuse Guidelines (2nd ed 1991), which was current in April – May 1994, provided that the record of interview with a child complainant should include the interviewer’s questions (paragraph [7.11]). Retired Detective Inspector Heslop was called in the plaintiffs’ case. He was critical of the failure to record the interviews with SW in question and answer format.

Mr Heslop was also critical of MOD’s decision to interview SW, since he had not undergone the IROC and had no specialist training in the interviewing of complainants in sexual cases. In his view, SW should have been interviewed by an IROC trained officer or an officer attached to a CMU.

SW was aged eighteen when she made her first complaint to Detective Cruickshank. Detective Cruickshank, who was an experienced investigator accustomed to taking statements from complainants in sexual cases, chose to take SW’s account in a narrative form. MOD made the same decision. I am not persuaded that any criticism should attach to either of them for that decision. The decision to take a narrative statement from an adult complainant was not in breach of any guideline or protocol and was one within the discretion of the officer.

The investigation of SW’s complaint had been assigned to MOD by the Chief of Detectives at Dee Why. MOD had considerable investigative experience. Detective Senior Sergeant Sterling saw no reason to be critical of the decision that MOD conduct the interview of SW, an adult complainant. I accepted her evidence in this respect.

In the plaintiffs’ submission MOD had been motivated by a desire to shore up the credit of SW and the other complainants. He had concealed certain of SW’s allegations that were plainly fanciful. He did not record the contents of his initial interview with her in the form of a statement or record of interview. His only record of it were the annotations that he recorded in pencil of a copy of the Cruickshank statement. Pencil notations might be readily obliterated. He was said to have concealed the existence of the record of this interview with SW by not serving a copy of the annotations to the Cruickshank statement with the brief of evidence. Allied to these submissions was the contention that I would infer that he had crafted SW’s allegations in the second statement with a view to “writing out of the script” some of the more improbable claims that she had made on 17 April.

Mr Walsh, the plaintiffs’ solicitor, issued a subpoena addressed to MOD in the care proceedings. It required production of documents relating to the investigation at the Children’s Court. A copy of the subpoena which was returnable before the Campsie Children’s Court on 5 October 1994 forms part of exhibit F. The schedule required the production of documents, including “all notes, memoranda, records of attendances upon all persons who have supplied or given any information into you in respect of your inquiries in relation to investigations of allegations of sexual assault involving SW, JW, EW, JLW, SS, KS.”

To the best of Mr Walsh’s recollection the documents produced in answer to the subpoena did not include a copy of the annotations to the Cruickshank statement. Mr Walsh came to learn of the existence of these notes in the course of cross-examining MOD in the Children’s Court proceedings. He made a call for the document on 5 December 1994 and it was produced.

MOD recorded the fact of this interview in which he made the annotations to the Cruickshank statement in his official police notebook. The notebook entry states: “Notes recorded on copy of statement by Cruickshank.” (Exhibit 28 at p 27).

The plaintiffs’ contention is that after making the annotations to the Cruickshank statement (and recording the fact of so doing in his notebook), MOD came to the view that some of SW’s allegations were too fanciful for belief. Thus, he did not direct her attention to them in taking the second statement and he deliberately chose not to produce them in answer to the subpoena.

The notes were produced in answer to the call. It is not suggested that any part of them had been obliterated.

The fact that police officers are issued with official police notebooks is a matter that in 1994 was likely to have been known to any legal practitioner engaged in the conduct of criminal cases. A police officer of MOD’s experience might be expected to have been aware that relevant entries in his official police notebook were likely to come to light in the course of criminal proceedings. Given that MOD recorded the making of the annotations to the Cruickshank statement in his official police notebook and that he produced the notebook in answer to the subpoena I am not persuaded that I should infer that in failing to produce a copy of the annotations to the Cruickshank statement he was actively seeking to conceal the fact of their existence.

The annotations to the Cruickshank statement suggest that SW alleged, among other things, that her mother had given her cocaine. This allegation does not figure in her account of home life in the second statement. It was MOD’s evidence that SW told him in his interview with her on 17 April that she had been supplied by her mother with cigarettes, alcohol and a white powdery substance similar to cocaine. It was contended on the plaintiffs’ behalf that MOD had concealed his knowledge that SW was addicted to cocaine. This was a significant matter since it had the capacity to bear on the reliability of her evidence.

The information recorded in the annotations to the Cruickshank statement seems to me to fall somewhat short of evidence that SW was, as at the date of the investigation, a person addicted to cocaine or that she had ever been addicted to cocaine. I do not find that MOD deliberately sought to conceal SW’s account of being given a white powdery substance by her mother because he feared that it was material that might bear adversely on her credibility. In the ERISP conducted with LW, MOD asked questions that suggested that he had information that SW had been supplied with cocaine or a white powdery substance by her (ERISP Q&A 72 – Q&A 74).

It was submitted that I would infer that MOD “scripted” the second statement so as to minimise the inconsistencies between it and the Cruickshank statement. An instance of suggested coaching was the shift in SW’s account of the conversation with her father in the kitchen on the night of JLW’s eleventh birthday. The version in the second statement accommodated the fact that SW was now maintaining that it was her mother who sexually assaulted her on her ninth birthday and not her father. The endeavour to tailor the account of the conversation make it consistent with the later allegation is obvious to a reader of the two statements. At the time of making these allegations it seems to me that SW was a person given to telling lies. I am not persuaded I should draw the inference that she received assistance from MOD to mould her account of the conversation to fit the version of abuse she was then offering. The inconsistencies must have been apparent to MOD but I see no reason to conclude that he was the author of them.

The submission that MOD crafted SW’s second statement to avoid reference in them to her more extreme allegations seems to me to overlook the nature of the allegations that found their way into the second statement. I accept that the annotation to the Cruickshank statement concerning LW’s alleged threat to bait the pet’s dinner with fish hooks may be thought extreme, however, to my mind, a like observation may be made about the allegation in paragraph [12] of the second statement (LW takes hold of SW, making her watch while AW drowns the pet guinea pigs one at a time, saying, “If you tell anyone, we’ll do the same thing to Tessy”, the Maltese Terrier).

I have concluded that the submission that MOD orchestrated SW’s account in the second statement with a view to minimising inconsistencies between it and the Cruickshank statement is one that should be rejected. There are stark inconsistencies in the accounts given in the Cruickshank statement and the second statement. If MOD had been anxious to shore up SW’s credibility by tailoring the allegations in the second statement - by subtle suggestion or otherwise - I would have expected the inconsistencies and improbabilities in it to be somewhat less evident.

The plaintiffs made a different point with respect to a change in SW’s account of an assault on the night before the school excursion to Bathurst. There was a significant change in the version of this incident between the Cruickshank statement and the second statement. I have recounted this at paragraph [300] and [379] above. Notably in the account given in the second statement SW alleged for the first time that her brother, JW, was involved in the assault. SW gave this new account of the incident the day after JW signed his statement making allegations involving his parents.

It was submitted that the timing was unlikely to be coincidental and that from this I would infer that MOD had encouraged SW to expand her account. I accept that the timing of SW’s revelations is suggestive that she was aware that JW, too, was making allegations of abuse. I am not persuaded that the inference to be drawn is that MOD was responsible for the change in SW’s account of the incident that occurred the night before the Bathurst excursion. SW’s flamboyant account of the incident in which she was jointly assaulted by JW and AW bears no correspondence to the allegations of sexual impropriety contained in JW’s statement. I see no reason to infer that MOD coached her to make it. It is not as though JW was cut off from contact with all members of his family while he was in Minali. If SW did come to learn that JW was making disclosures of abuse to the police, there is no reason to conclude that MOD was the person who told her. The timing of EW’s retraction - the blood from the breast

It will be recalled that Detective Hill told MOD of Dr Bedami’s opinion that EW’s account was unlikely to be true on 29 June. The following day EW telephoned Detective Hill telling her that she needed to speak to her. When she saw Detective Hill later that day she gave her a letter. In the letter EW said that the blood had not been taken from her breast. She went on to state that she had a talk with SW the previous night and that she had told SW that she had lied and that SW had made her realise that she should tell the truth.

In the plaintiffs’ submission the inference to be drawn was that MOD orchestrated EW’s retraction. In their submission the likelihood was that MOD told SW of the medical advice that tended to make EW’s account appear implausible. SW then spoke with EW and told her to retract it.

As I have noted EW gave no satisfactory account of how she had come to make her allegations or what had caused her to retract them. It is clear that she was in contact with SW the day before she retracted the blood from the breast allegation. Detective Hill’s duty book entry for 29 June records that she spoke to SW concerning EW’s welfare and discussed how EW was when she (Hill) was not around. In her letter EW said that SW had told her to come forward over the matter. I am mindful of the coincidence in the timing of the retraction. However, I do not think that it is appropriate to draw the inference as a matter of probability that MOD tipped SW off. I consider there is another explanation for the timing of EW’s retraction that is at least as likely as that for which the plaintiffs contend.

The last statement that Constable Nicholson took from EW was on 10 June. This was the statement in which EW gave her account of blood being taken from her breast. On 28 June Detective Hill recorded in her duty book that she had spoken with EW. It would seem that she told EW that she would be taking a further statement from her to clarify the things she had said to Constable Nicholson in the last statement. To my mind the inference is equally open that EW discussed with SW the fact that Detective Hill wanted to clarify the things she had told Constable Nicholson about blood being taken from her breast and that SW, without the benefit of medical advice, realised this was an allegation that was not likely to be believed. The failure to serve the first Keir statement

The plaintiffs’ case was opened on the footing that MOD deliberately sought to conceal the first statement made by Douglas Keir. This statement was taken by Detective Yeomans. It set out chronologically the disclosures that SW made to Mr Keir in the course of his counselling sessions with her. A number of inconsistencies emerge in comparing the claims that she made to Mr Keir with her later statements to the police.

On 7 July 1994 MOD took a second statement from Douglas Keir in which Mr Keir expressed opinions about the tendency of sexual assault victims to bury memories of sexual abuse and the like.

The police brief of evidence in the prosecution of AW and LW appears to have been served at court on 4 August 1994 (s 48D(1) notice, exhibit K). Annexed to the notice is a document recording the details of statements that form part of the brief. It would seem that only one statement made by Douglas Keir was served.

It was not in issue that the statement made by Mr Keir that was served was the second statement dated 7 July 1994. The evidence did not establish who completed the Form 1 document. MOD said that that both statements had been served by the police on the Director. He offered the suggestion that the Director may have considered that not all the statements were relevant to the criminal proceedings. The relevance of the first Keir statement to the criminal proceedings against AW and LW, based as they were on the allegations made by SW, seems to me to be apparent. I am not able to say whether MOD served the first Keir statement on the Director. However, I do not find that any failure to serve it was as the result of a decision made by MOD to conceal its existence. In this regard I note that the second Keir statement was taken by MOD and refers in terms to the fact that on 30 May he made a statement at the Dee Why Police Station in relation to the counselling that he had provided to SW (Keir statement 7.7.94 at [5]). The concealment of the claims of ritual abuse

At the time that Task Force Maitland was formed MOD reported that the W investigation had overtones of ritual sexual abuse. The significance of this to the plaintiffs’ case seemed to me to be twofold. Firstly, the contents of a briefing given by MOD to staff of the Manly DOCS office on 18 May in which it appears at the least he engaged in speculation about wild and improbable abuse was itself said to evidence malice. Secondly, the claim that MOD concealed fanciful allegations from the plaintiffs in an effort to maintain SW’s credibility extended to the claims of ritual abuse. Initially the plaintiffs’ particulars of malice included that the police officers had failed to investigate aspects of the ritual abuse allegation, however, these were ultimately not pursued.

MOD was given a booklet on the topic of ritual sexual abuse by Ms Kendall, who was working with the Sexual Assault Unit at the Royal North Shore Hospital. At a counselling session with Sergeant Wickner, the psychologist, on 18 May, MOD discussed ritual sexual abuse and she gave him an article about it. The article contained reference to what was said to be a reported case of infant sacrifice.

After his counselling session with Sergeant Wickner MOD attended a meeting with DOCS officers. There are two documents recording the contents of that meeting: a running sheet created by MOD on 18 May and entered into the TIMS system on 4 July (running sheet 1/9/3, volume 7) and a record (incorrectly dated 19 May) apparently prepared by the Assistant Manager of the Manly DOCS office (the DOCS meeting notes): exhibit P. The running sheet records: “About 1:45 pm on Wed 18 May 1994 went to DOCS Manly and spoke to Michele McPherson, Annie Fraser and Steve Dinning re W matter. I had collected documents from Sgt Kate Wikner at Psychology Unit on ritual abuse including actual reported case. Spoke to DOCS about matters disclosed during W investigation and spoke generally about ritual abuse and suspicions. Fears of where matter could lead as information bears striking similarity to research done on ritual abuse. Spoke about reported case involving sacrifice of infants, eating of flesh and … (indecipherable) large scale organised involvement including relatives and friends including members of medical profession. Information obtained during interview with SW about activities within her family very similar to much of abuse as reported in literature. SW had mentioned when asked that outside persons have been involved and that she has been taken to a place she identifies as ‘the big room’ where adults had sex with her and other children were present. Couldn’t identify location and didn’t wish to discuss matter further as she found it too hard to talk about. (Seemed sincere and truthful – possibility of perhaps disclosing information later, concerning outside family persons. Possibly that relatives could be involved?)”

The DOCS meeting notes recorded, inter alia: “On 19/5/94 MOD from Dee Why Police met with Michael McPherson, Assistant Manager and District Officers Annie Fraser and Steve Dinning. During this interview the following information, in addition to the sexual assault detailed previously in this report was given, following their taking statements from the children - · Children were taken to a variety of houses in the local area where they were given what was referred to as a ‘special drink’. This is believed to be some form of stupefying drug. · SW has been able to identify some of these addresses to the police and they have the details on six locations. Two of these locations were believed to be family members who lived nearby. · At these locations they were sexually abused by multiple adults. One family member other than the parents were involved. · Adults referred to one house as the ‘big house’. This house has not been located to date. · At the ‘big house’ at least two terminations of pregnancy, involving children, are believed to have occurred. EW has disclosed her being taken there towards the end of 1993 and having an abortion carried out without anaesthetic whilst she was being held down by her parents. · The abuse in the ‘big room’ involved rituals that occurred around the girls’ menstrual cycles. · The adults dressed up in ‘funny’ clothing. · The children were medically examined in the ‘big room’ every two months and blood samples were taken. Sexual activity was unprotected. · There is some suggestion of the ‘sacrificing’ of one infant occurred. · Pets were killed and used as threats to the children. “

In his running sheet entry MOD drew a distinction between information obtained from SW and his suspicion of ritual abuse based on the literature. The DOCS meeting notes, if they are an accurate record, suggest that he was less restrained in the claims that he made about the W investigation in the course of the meeting.

MOD gave no evidence that SW had made allegations of sexual abuse involving anyone other than members of her immediate family. Apart from the incident in the park on the night of the school disco, all the sexual abuse was said to have occurred in the family home and at the Manly Vale and Mona Vale premises at which she had resided in 1993. MOD gave no evidence that SW complained of ritual abuse at “the big house” nor of a number of the matters that are recorded in the DOCS meeting notes.

The evidence does suggest that MOD carried out investigations involving the observation of various addresses on 16 and 17 May. On 16 May he took SW with him in this connection. The following day he was accompanied by Constable Cordery. These activities are recorded in his duty book. On 15 and 16 May SW was brought to the police station and given the opportunity to read through her second statement to see whether there was anything in it that she wished to change. It does not appear that she made any changes. There is no record that SW made any additional allegations concerning the involvement of other persons in sexual abuse of her or of other members of her family.

Detective Yeomans had no recall of discussions with MOD concerning the contents of the running sheet or the DOCS meeting notes. The assertion that the children had been taken to a variety of houses and given a stupefying drug was not one that he recalled. Had such an allegation been drawn to his attention he expected that he would have remembered it. He had no recall of SW identifying addresses in the local area at which abuse had taken place. He had no recall of any claim that children had been subjected to sexual abuse by a number of adults at any premises. He had a recall of the term, “the big house”, but he was not able to remember details about the use of that expression. He recalled becoming aware of an allegation relating to the termination of a pregnancy. He was not able to recall when he was made aware of that allegation or by whom. He knew of no claims relating to the sacrificing of infants or the killing of pets, save that he was aware SW had made an allegation concerning the killing of her cat, Garfield.

Detective Burns recalled that MOD had kept him informed about the progress of the W investigation. Detective Burns had some recall of hearing the expression, “the big room” in connection with the W investigation. His impression was that the allegations of abuse related to events that had occurred in the W family home. He had no recall of being informed of an allegation that rituals occurred around the girls’ menstrual cycles at “the big house”. He said that MOD may have told him of allegations about the conduct of medical examinations of children at “the big house”, but he had no recall of the matter.

Detective Hill gave no evidence of being informed of allegations such as those referred to in the running sheet or the DOCS meeting notes.

The only record suggestive that SW may have made an allegation of sexual abuse involving some wider group of persons is the record of interview conducted by MOD with her on 7 September 1994. In that interview MOD recorded that at an earlier stage of the investigation he had told SW of his suspicion that other people may be involved in the abuse apart from her mother and father. The record of interview suggests that SW acknowledged that had occurred but that she had not wanted to discuss the matter. As at 7 September her attitude was that she still did not wish to discuss the involvement of others in the abuse. I do not overlook that in an affidavit sworn on 21 June in support of an application for a warrant to authorise the installation of a listening device in the family home MOD deposed to SW having disclosed to him in discussions that other adults visited the family home and engaged in sexual acts with her.

Neither the evidence given by MOD nor the record of interview of 7 September suggests that SW was the source of the claims of ritual abuse recorded by MOD in the running sheet. It does appear that MOD made some investigations involving the identification of addresses. MOD’s evidence left somewhat unclear what, if anything, SW had conveyed to him about the addresses.

The reference in the DOCS meeting notes to children being taken to a variety of houses in the local area where they were given a “special drink” is not a claim recorded in any of the statements available to MOD as at 18 May. On the evening of 17 May MOD recorded in his duty book that he had a telephone discussion with PS concerning the disclosures made by SS. In the course of this discussion he said that he had been told that SS now wished to tell him about LW giving him “children’s wine”.

In a memorandum to senior officers from Inspector Allan, Staff Officer attached to the Warringah District Officer, advising of the establishment of Task Force Maitland, it was noted that inquiries had indicated that other children of the family had been assaulted by the parents “and other unknown adults”. It was said that, “there are indications of ritualistic overtones”.

It is probable that MOD suspected that he was investigating a paedophile ring and that he was influenced in coming to this view by the literature he received from Ms Kendall and Sergeant Wickner. It is apparent from the running sheet that MOD was operating partly on his suspicion that the investigation might lead to the disclosure of persons outside the family and other relatives. While the DOCS meeting notes may not accurately reflect the information that MOD provided, the likelihood is that at the briefing MOD gave an account of the W investigation that was coloured by his suspicion of ritual abuse and in this respect was lacking in objectivity. The reference in the DOCS meeting notes to children being taken to a variety of houses and given a special drink and to the identification of a number of addresses by the police are specific and have echoes in aspects of the investigations to which I have referred on 16 and 17 May. They represent an enhancement on the information that was, as a matter of fact, available to the police at the time.

My conclusion that as at 18 May MOD believed that he was investigating a paedophile ring and that he conveyed that suspicion to officers of DOCS does not seem to me to evidence malice with respect to the prosecution of the charges that he instituted against AW and LW. He may be thought to have fastened too quickly on a view that SW’s claims were suggestive of organised paedophile activity, but I do not consider that it points to any ulterior or improper motive in the institution of the prosecution of AW and LW.

I turn to the question of whether MOD concealed improbable allegations to prevent them adversely affecting her credibility. Either SW gave an account of being taken to the big house and of adults dressed in funny clothing or she did not. In the event that she did MOD either made no record of it at the time because from the outset he realised that such allegations were inherently improbable and would tarnish her credit, or he later came to this view and destroyed any statement or notes recording the allegations. Neither of these alternatives seems to me to be likely.

MOD made the running sheet entry on 18 May. This was six days before Task Force Maitland was established. It would seem that there was some delay in entering all the records created in connection with the investigation into the TIMS. MOD’s running sheet was not entered into the system until 4 July. If SW had made allegations prior to 18 May of the character of those in the DOCS meeting notes and MOD had not recorded them because at the time he considered them to be incredible it is difficult to see why he would have created the running sheet. If sometime after SW made the allegations MOD decided to conceal that fact one might have expected that he would have concealed the running sheet. In early July, at a time when the prosecution had been taken over by the Director, MOD appears to have made the running sheet available for entry into the TIMS. I do not draw the inference that MOD deliberately concealed material relating to ritual abuse. The pressure applied to JW at the interview on 29 April

AW and LW both rely on Detective Yeomans’ conduct at the interview with JW on 29 April, in applying pressure on JW in the absence of Stephen Dinning to make disclosures of wrong conduct, as evidencing malice. I am satisfied that Detective Yeomans’ conduct was wrongful in the respects I have found at paragraph [194] above.

The defendant submitted that even if it were accepted that Detective Yeomans had confronted JW in telling him that he was lying and that his account was “frog-shit”, this would not support a finding of malice. It demonstrated excessive zeal but did not serve to support the inference that he was motivated by some improper or collateral motive. Acceptance of this submission would carry with it that a police officer who fabricated evidence against a person whom he believed to be guilty of an offence and who instituted the prosecution of the person on the strength of evidence that he knew to be false would not be liable in an action for malicious prosecution. In am not persuaded that this is the law; Brain per Dixon J at 379.

In this case I do not find that Detective Yeomans fabricated evidence against AW or LW. He challenged JW’s account in an emphatic way but he did not threaten him or suggest to him the things that he should say. JW’s disclosures of abuse were his own.

Although Detective Yeomans did not fabricate the allegations that JW made, which formed the basis of a number of charges preferred against LW, he did conceal evidence that was relevant to an assessment of the reliability of JW’s account. The notes that he recorded in his official notebook omit reference to his request that Stephen Dinning leave the room and to his remarks made in Mr Dinning’s absence to the effect that JW’s account was “frog-shit”. The true circumstances in which JW came to make allegations against his mother and father were not disclosed by one of the police officers responsible for the institution of criminal proceedings against them.

Detective Yeomans said that it would not have been inappropriate for him to ask Mr Dinning to leave the interview room. I did not accept his evidence in this respect. JW had made admissions in his interview with the DOCS officers to the sexual assault of his sisters. He was a child in the care of DOCS as at 29 April. It was Detective Yeomans’ intention to interview JW on an induced basis (upon the assumption that JW was himself a victim of abuse) and he had discussed this matter with MOD who had sought the advice of the ODPP in this respect. Nonetheless I am satisfied that Detective Yeomans did not believe in these circumstances that it was appropriate to ask Mr Dinning to leave while he further interviewed JW alone. The probability is that Detective Yeomans wrote up his notes of the interview omitting the request to Mr Dinning to leave and his statements to JW made in Mr Dinning’s absence because he knew his behaviour was wrongful.

Detective Yeomans did not know any member of the W family before he became involved in this investigation. His involvement commenced on 7 April when Detective Cruickshank handed him a copy of SW’s statement.

At the time of the interview with JW on 29 April Detective Yeomans knew that SW had made allegations of parental sexual abuse and that EW had made allegations that she had been abused by her father and JW. I am satisfied that Detective Yeomans believed that JW had probably been sexually abused in the family home.

When JW commenced making allegations of parental sexual misconduct in the course of the interview on 29 April I am satisfied that Detective Yeomans believed him to be giving a truthful account.

In Trobridge v Hardy Kitto J said of proof of the element of malice (at 162): “[I]t forms the subject of a separate issue of fact on which the party alleging it must establish that the conduct of which he complains was actuated solely or predominantly by a wrong or indirect motive. I have concluded that Detective Yeomans was not possessed of any motive at the time he was involved in the institution of the further charges against AW and LW (and in particular the charges against LW arising out of JW’s complaints) other than to bring them to justice in respect of offences that he believed them to have committed. For these reasons I have concluded that Detective Yeomans’ conduct of the interview does not evidence malice. The criticisms of the conduct of the investigation

The plaintiffs plead as particulars of malice a number of matters going to the sufficiency of the investigation of the complaints made against them. (i) Garfield

One of the more extreme allegations that appears to have been made by SW in the interview with MOD on 17 April was recorded as follows: “When I was ten or eleven Mum came in and tell me that Dad was ready for me in their room. This happened a number of times each week until I left home. If I said no Mum would grab my cat or some other animal in the house (dog/cat) and put a knife to its throat. And say, ‘he wants you now’. Mum put cat on tyre and Dad ran over it a few times in front of me – just come home from school, I had just finished my periods. The day before and so I knew it was going start again so I stayed at the lookout all night. Mum said, ‘if you do it again there are plenty of other animals.’”

SW’s claim that her pet cat had been placed on the tyre of the family car by her mother and deliberately run over by her father was one allegation that in the plaintiffs’ submission it had been open to MOD to investigate and verify or disprove. His failure to do so was said to evidence malice.

LW gave evidence that SW had a cat named Garfield when she was still in primary school. Garfield had a habit of sleeping on the top of the front tyre of the family car. On one occasion when AW was backing the car out to take JW and his friends to school Garfield failed to jump off the tyre in time and was run over. Garfield was taken to the local veterinary clinic where he was treated and discharged home the following day.

In the plaintiffs’ submission, inquiries made of SW’s school friends, the children of neighbours and local veterinarians might well have established that far from engaging in sadistic abuse of a family pet, SW’s parents had acted responsibly in relation to Garfield. This would have established SW to be more than capable of making up damaging lies about her parents. I accept that to be the case. However, I do not take MOD’s failure to interview SW’s school friends, the children of neighbours and local veterinarians to see if any recalled the death of her cat to evidence malice. There is no reason to conclude that MOD refrained from making these inquiries out of a concern that to do so would be to expose SW as a liar.

There is another aspect in which MOD’s conduct with respect to the Garfield allegation is the subject of criticism. MOD took a statement from Douglas Keir on 30 May. In that statement Mr Keir detailed the contents of each of the counselling sessions that he had held with SW. His account of his last session with her, held on 18 April 1994, included the following (at paragraph [117]): “On the 18 April, 1994 I saw SW at the Chatswood office. After initial pleasantries, SW said, ‘I spoke to MOD and told him something that I haven’t confessed to before. That my mother knew about the incest all along and would in fact direct me to have sex with my father. My mother would threaten to kill my animals if I didn’t do what she or my father wanted. She did in fact run over my cat with her car. My mother would threaten me by putting a knife to my dog’s throat or threatening to put fish hooks in its food.”

Not later than 30 May, when the first Keir statement was taken, MOD was on notice that on 18 April SW had given a version of the Garfield story that was inconsistent with the account of the same incident that she had given him the day before. The running over of the cat was a distinct incident in SW’s description of a long history of abuse. On one view, it was telling that in the space of twenty-four hours she should give such differing accounts of it. However, in the absence of evidence that MOD endeavoured to conceal the differing accounts, it does not seem to me to point to MOD as being actuated by malice in prosecuting the plaintiffs on the strength of SW’s complaint. (ii) Failure to interview the neighbours

Next the plaintiffs complain of the failure of the police to carry out inquiries of the neighbours. It was noted that the house to the immediate east of the family home was located not far from the bathroom of the family home. The bathroom was the scene of a number of alleged episodes of abuse. In the event that SW or EW had been assaulted in the bathroom in the way they described, it was submitted that one might reasonably have expected the elderly neighbour, Mrs C, to have heard something of it. The proximity of the two houses to one another was not to my mind such as to make it likely that she would have heard sounds of sexual activity coming from the bathroom or, for that matter, the master bedroom or anywhere else in the family home.

Another neighbour, Mrs F, lived in a house in the avenue to the north of the family home and had access to the family home through the back gate. It was common for her call and have a cup of tea with JS. These were impromptu visits. Again, I do not draw any adverse inference from MOD’s failure to arrange for a statement to be taken from Mrs F.

Common sense and human experience suggest that children may be subjected to persistent sexual abuse within the family home without detection by neighbours. A thorough investigation conducted by police would no doubt have involved making inquiries of the neighbours to see if anything untoward had been observed by them. However, I do not consider that an inference of malice is to be drawn from the circumstance that these inquiries were not carried out. (iii) Failure to investigate SW’s claims rape by violent boyfriends

In his first statement Douglas Keir said that at his initial counselling session with SW on 15 November 1993 she had told him that she had been raped by boyfriends who had been physically violent to her (at paragraph [12]). This statement was taken from Mr Keir by Detective Yeomans on 30 May. At no time after the police commenced investigating SW’s complaints does she appear to have ever been asked by the police about the allegation that she had been raped by violent boyfriends.

The significance of SW’s claims of having been raped by violent boyfriends to the consideration of her allegations against the plaintiffs is as to her credibility. If as a matter of fact she had been raped by violent boyfriends in the past that fact would not be relevant to the decision to prosecute the plaintiffs in relation to the allegations she made with respect to their alleged misconduct. In the event that SW’s claim of having been raped by violent boyfriends was a fabrication it was a matter relevant to the assessment of the credibility of the allegations that she made against the plaintiffs. It is surprising that it was not a matter that was pursued with her.

The fact that MOD did not take up the question of SW’s claim to be have been raped by others in the past does not seem to me to give rise to an inference that he was actuated by malice. I have rejected the contention that there was a deliberate attempt to conceal the existence of the first Keir statement from the plaintiffs. The provisions of s 409B of the Crimes Act (as it then stood) may have made it difficult for the plaintiffs to make forensic use out of the material but it was available to them. (iv) Failure to take a statement from Dr Blom

The plaintiffs plead as a particular of malice that the police failed to obtain a statement from the W family doctor, Dr Blom. It is asserted that he would have been in a position to confirm or deny the allegations of sexual abuse. No evidence was led in support of this particular. It is not clear that Dr Blom would have been in a position to confirm or deny the allegations of sexual abuse. Medical examinations were carried out on the child complainants and did not serve to either confirm or deny the history of abuse given. (v) Examination of EW by Dr Edwards

A particular of malice relied upon by each of the plaintiffs is pleaded as follows: “The police knew that EW had been examined by a gynaecologist, namely Dr Deborah Allen, at the Gosford Sexual Assault Unit on or about 26 May 1994 where it was found that her sexual organs were normal but notwithstanding this caused her to be further medically examined so as to seek to procure a medical opinion that supported allegations which were, in effect, false and thereafter utilising a medical practitioner to use a discredited technique for the examination of the said EW.”

The medical practitioner referred to as using discredited techniques was Dr Edwards at the Sexual Assault Unit at the Royal North Shore Hospital. No evidence was led in these proceedings with respect to the claim that the procedure adopted by Dr Edwards on 17 June involved a discredited technique.

Detective Hill gave evidence that the earlier examination of EW had not “gone to completion” (T 1413). MOD asked her to contact the Royal North Shore Hospital to arrange an appointment through Susan Kendall with Dr Edwards, who had expertise in the conduct of medical examinations of complainants. It was not put to Detective Hill that Dr Edwards was known to employ a discredited technique. There is no evidence that this is the case. I do not draw an inference supportive of the case in malice arising out of the decision to seek to have EW medically examined by a doctor at the Sexual Assault Unit of the Royal North Shore Hospital. (vi) The medical examination of SW

On 19 August MOD took a statement from Dr Roche, an obstetrician and gynaecologist. Dr Roche had examined SW on 12 March 1993 at a time when she was complaining of painful periods. She had been admitted to Mona Vale District Hospital following this consultation for pre-menstrual dilatation and curette and laparoscopy. She was seen again when she continued to complain of pain in the lower abdomen. Dr Roche reported that he had been of the opinion in May 1993 that SW suffered from vaginismus. This is an involuntary spasm of the vaginal muscles that manifests itself whenever vaginal entry is attempted. Dr Roche noted that vaginismus often has a psychological component and may be related to feelings of guilt, or may present when there is a history of rape or sexual abuse. In retrospect Dr Roche expressed the opinion that it was possible that SW had been the victim of some sexual abuse in the past which had caused the vaginismus.

SW was examined by Dr Van Der Griend at the Royal North Shore Hospital on 2 June. The doctor reported that on examination there were no obvious scars and that the external genitalia, peri-anal region, vagina and cervix appeared normal. The fact that MOD was aware of the results of the examination carried out by Dr Van Der Griend, namely, that SW’s sexual organs were normal with no obvious scaring, is relied upon as a particular of malice in the case of each of the plaintiffs. No evidence was led to support the inference that the results of the examination were inconsistent with the history that SW gave. Dr Van Der Griend recorded that he had been given a history of chronic assault dating back to the age of five years, including that SW had been assaulted by both her mother and father and a friend of her parents. The last assault was reported as having occurred in late March 1994. Dr Van Der Griend expressed no opinion that the results of the examination were inconsistent with this history.

On AW’s behalf it was put that the results of the examination conducted by Dr Van Der Griend did not sit well with the opinion in Dr Roche’s report concerning vaginismus and the possibility of a history of sexual abuse.

The report of Dr Van Der Griend was served, as well as the report of Dr Roche, as part of the police brief of evidence. I do not consider that this latter submission supports a finding of malice. (vii) Failure to interview Michael concerning his knowledge of relevant events

Two statements were taken from SW’s boyfriend, Michael. The first was taken by MOD on 29 May. This was a narrative account of the circumstances in which Michael met SW and of the development of his relationship with her. It included an account that around the time that SW quit school she had complained to him that her father had raped her in the bathroom of the family home. He gave an account of the incident when SW had complained of being knocked to the back of the head on an occasion when she was arguing with her father.

On 31 July MOD again interviewed Michael. His stated intention was to clarify matters contained in the earlier statement. The interview was recorded in question and answer format. Michael said that after SW and he commenced living together he had gone to the family home for dinner nearly every Saturday night. LW would invite them and SW always felt compelled to go. He complained it had reached a stage where they were eating at the family home three or four times a week. He recalled an occasion when he had mentioned that he had to go to a conference later that week. SW’s mother suggested that he should drop SW off at the family home for dinner on his way to the conference and pick her up on his way home. In the event SW had stayed at home. The conference was on 18 March. When he got home after the conference SW was emotional and complained of a bad back and of being tired. Michael thought it was because she had her period. Michael said he had not found out what had happened to her until she made her statement at the Manly Police Station. This was a reference to the version SW gave of the events of 18 March in the Cruickshank statement. The claim made in SW’s second statement, that AW and LW had called by arrangement to the Manly Vale home on 18 March and that they had seen Michael there before he went out, received no support from the further statement made by him on 31 July.

In his first statement Michael volunteered an account of a night when he SW and another friend had left an alcohol-free party and consumed some cans of bourbon and coke at a bus shelter. He observed in passing that SW did not drink bourbon. In the plaintiffs’ submission, the failure to take up with Michael the claim that SW was consuming substantial quantities of bourbon every day for a week in November 1993 was extraordinary. If she were being subjected to daily sexual assaults and was self-medicating by the consumption of bourbon in the quantities she had described, it might be thought that her partner and flatmates would have observed some change in her behaviour.

Michael’s knowledge of events was relevant to a number of the charges. By the time MOD took Michael’s first statement, MOD was aware of SW’s allegation that group sexual intercourse had taken place in the master bedroom of the family home following a birthday dinner attended by her and Michael on 5 March. Michael’s attention was not directed to his recollection of what, if anything, he had observed that night. He was likely to have had some recall; it was less than three months earlier.

Equally surprising was the omission to ask any question of Michael about whether he had observed the assault on SW that she claimed had occurred at Woolworths on 5 March.

Michael was not questioned about his knowledge of the events that took place in the family home on the night of JLW’s eleventh birthday. This an omission as striking if not more so than the failure to ask Michael about his recall of the events of the night of 5 March. (viii) Failure to interview Richard concerning the assault on 12 January

In the same category is the failure to interview Richard as to whether he had seen AW at the Manly Vale house on any occasion. At the time of making the call to Douglas Keir on 12 March, she told Mr Keir that Richard had suggested that she should do so. If she were being truthful on 16 March when she said that she had lied on the earlier occasion when she claimed that Richard had been present, it was an artful lie. It was plainly relevant to the investigation of the allegations SW made concerning the assault on 12 March to take a statement from Richard concerning any knowledge that he might have about AW’s visit to the house on that day or of SW’s call to Douglas Keir.

The plaintiffs submitted that the failure to undertake obvious inquiries such as those suggested with respect to Michael and Richard did not sit well with the efforts MOD went to in order to obtain evidence to demonstrate that SW’s account was possibly true. In this respect reliance was placed on the statement taken by MOD from the Administration Manager of the State Government Corporation for whom AW worked. It will be recalled that SW gave an account that her father had called to her home and had sexual intercourse with her on each day of a week when her flatmate was attending a training course. This was in November 1993. Employees at AW’s place of employment were subject to an electronic time recording system (ETRS). Their start and finish times were recorded by the use of a swipe card. An examination of AW’s times recorded by the ETRS did not support SW’s account. The statement taken from the Administration Manager included that management had learned of instances where an employee cheated the ETRS by getting a fellow employee to swipe his card so as to falsely record start and finish times. The Administration Manager went on to postulate that because of his seniority it would have been possible for AW to be absent from the workshop during the day under the guise of attending to official duties.

The failure to interview Michael and Richard about relevant matters of which they might reasonably be expected to have knowledge is not adequately explained by the size of the growing Task Force Maitland investigation or a lack of sufficient resources. These were demonstrably obvious inquiries that should have been made. The point is not improved by contrasting the failure to undertake those inquiries with the fact that a statement was taken from AW’s employer. The latter was taken on 13 March 1996. This was five days before the committal hearing commenced. At the date that the prosecution of each of the plaintiffs was instituted a number of inquiries, including of AW’s employer, had not been undertaken.

Police officers investigating an allegation of criminal offending are not subject to a duty of care to the person who is suspected of being the offender. The reason that the law does not impose a duty in these circumstances is explained in Sullivan v Moody [2001] HCA 59; 207 CLR 562. A number of the particulars of malice on which the plaintiffs rely are redolent of particulars of negligence.

The significance of the failure to interview Michael and Richard about the matters to which I have referred (and of the other suggested shortcomings in the conduct of the investigation) is to the extent that it points to MOD (or the other police officers) acting with malice. If the inference to be drawn was that the police deliberately refrained from making inquiries out of a concern that the results of making the inquiries was likely to undermine the prosecution or support the case of the accused it would be evidence of malice. However, that does not seem to me to be the inference to be drawn from these failures. The statements that were taken from Michael and Richard were served with the police brief in the expectation that each would be called as a witness in the Crown case. The listening device

Each of the plaintiffs plead as a particular of malice the wrongful causing of a listening device to be placed in the family home for a period of approximately twenty-one days during which time no evidence was obtained to support any of the allegations against them. The listening device was installed pursuant to a warrant granted by a judge of this Court. The application for the issue of the warrant was supported by an affidavit of MOD sworn on 21 June.

It was not clear how the plaintiffs relied upon the procuring of the warrant and the installation of the listening device as evidencing malice. The circumstance that this investigative procedure did not yield evidence supportive of the charges that had been preferred against AW and LW would not, of itself, support a conclusion that the police involved in procuring it did not believe in the allegations that had been made by the complainants. If anything, one would think the inference was to the contrary.

In opening his clients’ case, Mr Campbell said this (at T 92): “It is somewhat unusual of course in a case where the police have laid charges against people which are pending before the court and a police brief has been served for an application for a listening device to be made into someone’s home. That is necessarily going to pick up conversations touching upon their defence.”

The suggestion that the procuring of the listening device warrant in circumstances in which AW and LW were charged with offences was wrongful in that it was calculated to disclose communications that were the subject of legal professional privilege was not further developed. Detective Yeomans was not cross-examined upon such a contention.

The affidavit sworn by MOD in support of the issue of the warrant is in evidence. It recited the circumstance that both AW and LW had been charged with offences of aggravated sexual assault upon SW. It disclosed that it was the intention of the police to prefer further charges against each of them at court on 23 June. The purpose of seeking authority to use listening devices was not said to be in order to gain further evidence against AW or LW in respect of the charges that had been brought or were to be brought, but to obtain evidence relating to their suspected activities and the activities of other persons involving the sexual abuse of children. As noted, MOD deposed to having grounds to suspect that AW and LW, and other adult persons of unknown identity, were members of an organised group engaged in paedophile activity.

The foundation for any suspicion that MOD held that AW and LW were part of an organised paedophile ring does not seem to me to have been strong. As I have said, it is probable that MOD was influenced by literature supplied to him relating to ritual sexual abuse. However, I see nothing arising from the application for a listening device warrant to suggest that in investigating the complaints made by SW, EW, and the other complainants, MOD was motivated by a purpose other than his belief in the veracity of the allegations that had been made and a suspicion that AW and LW may be part of a larger group of persons engaged in the sexual abuse of children. Conclusion - malice

I do not consider that the various matters relied upon by AW and LW as evidencing malice on MOD’s part in the conduct of the investigation and in the determination to institute the prosecution of each of them on the charges that were laid at court on 23 June amount to such when viewed individually or in combination.

For the reasons that I have given, I am satisfied that MOD acted with malice in instituting the prosecution of LW for the two charges on 19 April. I am not able to identify what ulterior or improper motive MOD may have possessed but it seems to me to be the necessary conclusion given the matters to which I have referred at paragraph [270] above. I do not consider that because MOD acted with malice in charging LW with the two offences on 19 April I should infer that he was actuated by malice with respect to the institution of the further charges that were preferred on 23 June arising out of the complaints contained in the statements made by SW, EW and JW.

I have concluded that MOD lacked a degree of objectivity in the conduct of the W investigation. He appears to have accepted the accounts offered by SW and EW notwithstanding features of them that were improbable and to have concluded that AW and LW were likely to be members of a paedophile ring. However, I do not find that MOD’s motive in instituting the prosecution of charges against AW and LW on 23 June on the strength of the unsupported and in some instances implausible allegations made by their children (and in the case of AW, by SS and KS) was the product of any motive other than a desire to see them brought to justice. THE CLAIMS OF THE THIRD PLAINTIFF The visit to the high school

After the arrest of her daughter and son-in-law on 19 April JS had no contact with her grandchildren for some time. After a time JS started meeting JW at a shopping mall on a regular basis. EW was living on the Central Coast and attending the local high school.

On 18 August JS travelled to the Central Coast and visited EW at her school. Following this visit Detective Yeomans, acting at the direction of MOD, applied to Manly Local Court for the issue of an interim apprehended personal violence order. The persons for whose protection the interim order was obtained were EW, SW, JLW, SS and KS.

It was JS’ case that the police were not justified in procuring the apprehended personal violence order against her on the material that was available to them. Detective Yeomans was cross-examined along these lines. JS’ counsel submitted that an inference was available that MOD procured the issue of the interim apprehended violence order against JS because he wanted to keep her away from the complainants and not because the complainants were in fear of her.

JS gave evidence about the circumstances surrounding her visit to the high school and the content of her conversation with EW there. It is common ground that she spoke with EW in the playground in the presence of one of EW’s school friends, LN. Before speaking with EW, JS made her presence known to a senior member of the school staff. She was told that it would be necessary for the school to contact YS to get approval for the visit. JS made it clear that she did not expect approval to be forthcoming from that quarter. It was Open Day and JS was told that she was free to walk around the school. In the course of so doing she ran into EW and her friend.

EW told her uncle and aunt about JS’ visit to the school.

It would seem that after SW made her allegations the W and S families were divided: some of JS’ children were supportive of LW and AW, whereas her son, PS, and his wife YS, were supportive of SW and EW. PS telephoned MOD and told him of the school visit.

MOD and Detective Yeomans travelled to the Central Coast on the evening of 18 August and spoke with PS, YS, EW, LN and other members of the extended family. MOD contacted Detective Hill and arranged for her to take a statement from LN about the incident.

LN said that JS had questioned EW about where she and her siblings were living. She said that JS asked EW, “Who’s forcing you to say all these things?” and said, “You know that you Mum and Dad have never done those awful things to you”. LN also said that JS had inquired whether various of EW’s relatives, including PS and YS, were planning to visit the school that day. EW said that they were not and JS was reported to have responded, “Good, because if they were, I’d kill them. I’d get my knife out of my bag and kill them”. LN could not remember whether JS referred to her knife or pocket-knife (LN statement, 19 August, paragraph [12]).

EW did not want to talk to the police about the matter that night. She said that she was frightened. Detective Yeomans took EW to be conveying that she was frightened of JS. She did not say so in terms but it was open to him to draw that inference in the circumstances.

EW made a statement about this incident on 22 August. She did not say that her grandmother had mentioned the allegations that she, EW, had made, nor did she give an account of JS making any threat to her or to members of her family. She did say that she was really scared and shaky (EW statement 22 August, paragraph [7]).

JS said that she said to EW, “You were a naughty girl to say those things about your Mum and Dad”(T 130). She denied making any threat to hurt any person with the very small penknife that she kept in her purse, for the purpose of cutting the tags off clothes purchased for the children. Whether JS made a threat or any remark about a knife is not to the point. The evidence is that on the evening of 18 August MOD was told that such a threat had been made. There is a record in his duty book of receiving a phone call from PS at 6:45pm in which PS said, “JS has been to the school and spoken to EW, there was something said about a knife”. Subsequently, as noted, LN gave an account of such a threat.

Detective Yeomans was cross-examined about what if any fears had been expressed by the children for whose protection the interim order was obtained. His duty book records that he had attended to “PVO” (a reference to a personal violence order) with MOD “re fear expressed by SW, EW together with SS and KS on 18/8/94”. He was unable to recall what fears had been expressed by the children prior to the application for the interim order being made. There had been no discussion between MOD or Detective Yeomans with the children of the S family on the night of 18 August. Detective Yeomans was not able to say what information he had placed before the magistrate in order to secure the interim apprehended personal violence order. He could not recall whether he had seen LN’s statement at the time he applied for the interim order. The likelihood is that he had been informed of the contents of LN’s statement by Detective Hill. Both of their duty books record that they liaised in the early hours of 19 August about the statement taken by Detective Hill from LN.

Detective Hill recalled that after taking the statement from LN she had spoken with PS, YS, SW, and two other relatives, AH and DH. She recorded in her duty book, "All very concerned about JS approaching EW”. Detective Hill also said that SW had expressed fears for her safety arising out of JS’ visit to EW. Detective Hill spoke with EW for an extended period that night. She could not recall the conversation in detail. She remembered that EW had been concerned that JS could turn up at her school and that she was frightened that this had happened (T 1454).

Detective Yeomans obtained an ex parte interim apprehended personal violence order that was returnable on 23 August. On the return date the proceedings were stood over for hearing to 13 October. JS consented to the making of interim orders pending the hearing.

After the interim order had been obtained statements were taken by Detective Hill from JLW, SS and KS in which each expressed concerns about JS making contact with him or her. MOD took a further statement from SW on 30 August in which she expressed fears of JS and her desire to have no contact with her.

I do not find that Detective Yeomans’ conduct in applying for the interim order was without justification. I am satisfied that at the time he did so PS, YS, AH and DH had expressed concerns for the well-being of the child complainants arising out of JS’ visit to the school. Both EW and SW had expressed fears stemming from the visit. JS had been making inquiries about where the child complainants were living. There was some evidence that JS had made a threat directed at PS and YS during her visit.

A separate issue arising out of the issue of the interim order is as to the motive for JS’ arrest and charging on 15 September 2004. On 23 August it was clear to Detective Yeomans that the application for a personal violence order was to be defended and that it would come on for hearing before the committal hearing of the criminal charges against AW and LW. After attending court on 23 August, Detective Yeomans went to the Manly DOCS office where he was present at a meeting with DOCS officers, Detective Inspector Smith and MOD. They discussed matters relating to the care of the child complainants. MOD expressed his concern to Detective Yeomans about the prospect that SW and the child complainants may be required to give evidence in advance of the criminal proceedings. He sought advice from John Boyd and Jill Cash of the ODPP about the situation of the “victims” giving evidence and not in committal proceedings” (Detective Yeomans duty book, exhibit 12, entry 23 August). The allegations made against JS

The first allegation concerning JS was made by EW in a statement that was taken by Constable Nicholson on 8 June. In that statement EW gave an account that JS had licked menstrual blood from her vagina. EW made other allegations about JS of a similar but more extreme kind in a statement made on 10 June. At that time it seems that a decision was made not to charge JS on the strength of EW’s unsupported allegations. This was so even though as at 10 June EW had not admitted that she had fabricated some of her allegations.

A circumstance that appears to have led to the decision to charge JS with offences, including offences against EW that were dependent upon EW’s unsupported evidence, was that SW also came to make allegations about JS.

On 13 September MOD took a further statement from SW (the third statement). In this statement she said: “I now want to tell you about what my grandmother JS has done to me too. I didn’t mention her before in my statements because I was having a lot of trouble at the time trying to cope with talking about what AW and LW had done, and which also involved my brother and sisters” (at [5]). SW went on to refer to the allegations that she had made in the second statement and to include further detail involving the commission of sexual offences by JS.

SW’s third statement was taken over two days. In the concluding portion of it she offered by way of explanation for her failure to report her grandmother’s sexual abuse that she was worried that no one would believe her. After she learnt of JS’ visit to EW’s school she said she had begun to realise that she should tell someone what JS had done. She had not finally made up her mind to come forward until 7 September when she saw an advertisement on television encouraging people who had any knowledge of child abuse to come forward.

SW’s explanation of why it was that she waited so long before disclosing that her grandmother had been an active participant in the sexual abuse to which she and other members of her family had been subject may be thought somewhat suspect. It is to be observed that on 7 September MOD recorded an interview with SW in question and answer format. The interview commenced in this way: “Q 1. SW, as I have already explained to you, I wish to speak to you about the possible involvement of other persons who may have abused you or who may be involved in committing offences against other persons do you understand that?” SW is said to have acknowledged that she understood the purpose of the interview. She agreed that MOD had earlier told her of his suspicion that other persons may be involved in the abuse apart from her mother and father. She said that when he had first raised that with her she had nodded her head in assent. She did not want to make further statements or attend further court cases. She is not said to have made any disclosure to MOD on 7 September despite his invitation to do so.

SW’s account of being prompted by JS’ visit to the high school and by the television programme on 7 September to come forward and disclose that her grandmother had been sexually abusing her may be thought surprising when assessed against the answers that she is recorded as giving in her interview with MOD on 7 September. The arrest of JS

On 15 September Detective Sergeant Holloway and other police called to the family home and arrested JS. She was charged with a number of offences including the carnal knowledge of her granddaughters.

A number of complaints were made on JS’ behalf concerning her arrest and the decision to prefer the charges against her. These included the decision to proceed by way of arrest and not by summons.

JS was aged seventy-two years at the time. She was in poor health. She was a woman of good character who had served in the Australian Army in WWII. Subsequently she and her husband had raised their family in the family home. She had resided at these premises for close to fifty years. In counsel’s submission there was no justification for the decision to arrest her. Her daughter and son-in-law had been arrested and charged with sexual offences involving SW and EW a number of months earlier. JS had not availed herself of the opportunity to flee the jurisdiction. It was unreasonable to consider that she would not attend court in answer to a summons to do so.

Detective Holloway gave evidence that he arrested JS because he suspected her of having committed the sexual offences against SW and EW described in their statements. In the defendant’s submission the arrest was justified pursuant to the power conferred by s 352(2) of the Crimes Act notwithstanding that other courses may have been open to the police to secure her attendance at court. The defendant relied on the decision in the Court of Appeal in Fleet v District Court of New South Wales [1999] NSWCA 363 at [73]: “Lawfulness of arrest is one thing, appropriateness is another.”

In Frost v State of NSW [2002] NSWCA 226 Foster AJA doubted that the tort of wrongful arrest might be committed in circumstances in which the determination to proceed by way of arrest was inappropriate: [28] – [31].

The question has received more recent consideration in the Court of Appeal: Zaravinos v NSW [2004] NSWCA 320 Bryson JA (in a judgment with which Santow JA and Adams J concurred) observed at [37]: “Even if the circumstances mentioned in s 352(2)(a) exist, the lawfulness of the arrests of Mr Zaravinos are examinable, and the arrests were not lawful unless each decision to arrest was made in good faith and for the purposes for which the power to arrest exists, that is, the purposes of bringing the person arrested before a Justice and conducting a prosecution; and not for some extraneous purpose. Arresting a person for the purpose of questioning him and investigating the circumstances of the suspected offence or of any other offence is arrest for an extraneous purpose. It is even more clearly an extraneous purpose to arrest a person as a piece of unnecessary highhanded and humiliating behaviour in circumstances in which arrest is not reasonably necessary for the effective conduct of a prosecution. The availability of Information and Summons as an alternative course, and the considerations favouring and adverse to taking that alternative course, are relevant where the validity of the exercise of the power to arrest is in question.”

The offences described by SW and EW were of a most serious character. Minds might differ about the appropriateness of determining to proceed by way of arrest in the case of an elderly woman in poor health with such strong community ties. However, had Detective Holloway’s decision to proceed by way of arrest been based on a reasonable suspicion arrived at after consideration of the material assembled in the course of the police investigation, I am not persuaded that it would have been such an unreasonable exercise of discretion as to have been unlawful.

In 1994 Detective Holloway was a Detective Sergeant of Police attached to the CMU at Chatswood. He had no involvement with Task Force Maitland prior to 15 September. On that morning he went to the Task Force Office with Constable Thompson, a trainee police officer. He spoke with MOD and Detective Yeomans. MOD showed him some statements made by EW and SW and he read them. They contained allegations of sexual assaults committed against each girl by JS over a period of time.

MOD told Detective Holloway that a number of statements had been taken from the girls and that their accounts were reasonably consistent.

Shortly before 10:30 am Detective Holloway left the Dee Why Police Station with Constable Thompson and other police and drove to JS’ home. Detective Yeomans travelled to the premises in another car. Detective Holloway introduced himself to JS and told her, “We have received a number of complaints of sexual assault from your granddaughters, SW and EW, in which they nominate you as being involved.” JS said, “That is ridiculous, all I have ever done is tried to help their mother bring up those kids, and look at the trouble they have caused.” Detective Holloway said, “As a result of these complaints, I want you to understand that you are under arrest, and I want you to come to Dee Why Police Station with me.” JS was given the opportunity to telephone her son and daughter before she was taken to the police station. JS was cautioned by Detective Holloway at the home and in response to the caution she said, “Yes, you’re damn right, I won’t be saying anything to you.”

JS was taken to the Dee Why Police Station. On arrival she was taken to an interview room. Detective Holloway repeated that complaints had been made that she had sexually assaulted SW and EW and he said that he would like to interview her about them. JS replied saying, “I have already told you, there is no point in asking me anything about them, because I have nothing to say to you. Those girls are sick in the head, this is rubbish, and that’s all there is to it.” Detective Holloway told JS that she would be charged with carnal knowledge and aggravated sexual assault. She said that she understood but that it was ridiculous.

It was Detective Holloway’s evidence that he arrested JS because he had a reasonable suspicion that she had committed the sexual offences described by SW and EW in the statements that he read. He said that the decision to charge JS with the offences with which she was charged that day was made by him. His evidence in the latter respect was challenged.

The online charge sheets record that JS was arrested at 10:30 am and charged with eight offences at 11:08 am. Before returning to the issue of who determined that she would be charged with these offences I will refer to each charge and to the evidence available to the police in support of them. JS - (later substituted with 5508/9) carnal knowledge of SW between 5 February 1982 and 4 February 1984 (OLC No. 5508/1)

The first charge preferred against JS was OLC No. 5508/1. This alleged an offence of carnal knowledge of SW, a girl under the age of ten years (six to seven years), contrary to s 67 of the Crimes Act . The offence was particularised as having occurred between 5 February 1982 and 4 February 1984 at Beacon Hill. This charge was withdrawn in March 1996 and OLC 5508/9 was substituted for it. This latter charge was listed for hearing before the Downing Centre Local Court on 18 March 1996. The informant was nominated as MOD. This charge alleged that JS between 5 February 1982 and 4 February 1983 at Beacon Hill had sexual intercourse with SW without the consent of SW, she being under the age of sixteen years.

Significant to a consideration of who made the decision to charge JS with OLC No. 5508/1, and who framed the charge, is the coincidence that this charge contained the same two errors as OLC 5159/3, which was preferred at court against LW on 23 June 1994: it was an allegation of carnal knowledge and it particularised the wrong dates for the period during which it was said the offence occurred.

The source of the allegation for this first charge is paragraphs [7] - [9] of the third statement. SW there referred to paragraph [20] of her second statement, in which she had given an account of her mother digitally penetrating her from when she was aged six or seven years. In the third statement she claimed that at about the same time JS started to assault her in the same way. SW went on to refer to her assertion in the second statement that her mother used to wash her and put her to bed. She now claimed that she used to bathe with her grandmother and she described incidents of digital penetration while in the bath with JS. She also claimed that JS had made her play with JS’ breasts and penetrate her vagina.

In the third statement SW referred to her earlier account in paragraph [23] of the second statement of being made to watch her parents having sexual intercourse. She now asserted that the first time this had occurred was when she was nearly seven years old, and that her grandmother had been present holding onto her while she watched. No charge was preferred arising out of this allegation. It is relied upon by the plaintiffs as a further bizarre development in SW’s account of home life. JS - sexual intercourse with SW between 27 January and 31 July 1993 at Mona Vale (OLC 5508/2)

The second charge preferred against JS alleged an offence of sexual intercourse with SW without the consent of SW in circumstances of aggravation (OLC 5508/2). It was particularised as occurring between 27 January and 31 July 1993 at Mona Vale. This charge is linked to OLC 5159/8 brought against LW. I have already dealt with the evolution of SW’s allegations concerning the sexual assault at Mona Vale.

In her second statement SW gave an account that she had been taken into the bedroom of the Mona Vale premises by her mother with her younger brother JW. Her grandmother and younger sisters had remained in the lounge room watching television. The sexual molestation had been brought to an end by JS knocking on the door and calling out that it was time to go.

SW now claimed that only her younger sisters remained in the lounge room that day: JS was in the bedroom lying on the bed with LW. Both digitally assaulted her. At one point while LW was licking SW’s vagina, JS was playing with JW’s penis. JS had also licked SW’s vagina and inserted something into it that was bigger than a finger. SW said that her earlier statement in which she had described JS knocking on the door was not true. The incident came to an end in this way: her brother got on the bed and had sex with her. While this was taking place JS was touching her and sucking her breasts. After JW completed the act of intercourse everyone left the house.

It is to be noted that SW was aged eighteen when she made the third statement implicating her grandmother in this somewhat extraordinary sexual abuse of her. The explanation that she offered for not having disclosed the grandmother’s involvement at an earlier time is that “I was having a lot of trouble at the time trying to cope with talking about what AW and LW had done, and which also involved my brother and sisters” (third statement at [5]).

In counsel’s submission, given that SW was not purporting to describe events in the remote past, but an incident that had occurred within the last twelve months, the explanation for the inability to truthfully describe it on the first occasion is so inadequate as to have put any investigator of ordinary prudence and judgment on notice that her evidence was not to be relied upon as the basis for criminal proceedings without independent support. When one looks to the florid claims of abuse SW had made prior to 13 September it was submitted to be difficult to credit that she may have felt constrained not to reveal sexual misconduct by JS. JS - (later substituted with 5508/11) sexual intercourse with SW between 26 July and 4 September 1993 (OLC 5508/3)

The third charge preferred against JS was laid under s 61J(1) and alleged that between 26 July and 4 September 1993 at Beacon Hill, JS had sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5508/3). This charge was withdrawn on 28 March 1996 and replaced by OLC 5508/11. The latter charged JS with the unaggravated form of the offence committed between the same dates and at the same place.

The allegation relied upon to support this charge is found in paragraphs [15] and [16] of the third statement. SW asserted that during the month when she returned to live in the family home, her grandmother would often have sex with her. This occurred during the day when her parents were at work and her younger siblings were at school. She recalled that one Tuesday during this period JS instructed her to accompany her to her parents’ bedroom. JS undressed (leaving a singlet on) and directed SW (who was naked) to lie on the bed with her. JS then sexually assaulted her putting her tongue in and around her vagina and digitally penetrating her. JS then inserted a vibrating dildo into SW’s vagina. After this JS took a bath. SW washed her and was made to play with JS’ nipples and to digitally penetrate JS’ vagina.

In the third statement SW claimed that in the month when she had returned to live at the family home, LW and JS had sexually assaulted her once or twice a week by digitally penetrating and licking her vagina. Sometimes they both penetrated her at the same time and on other occasions they took it in turns. These allegations represented a considerable shift from those made in the second statement (at paragraph [93]). It will be recalled that in the Cruickshank statement SW gave an account of one frank episode of sexual assault during the month that she was living back at home. This was the assault in the garage on the night she moved home. In the Cruickshank statement it was SW’s account that at the time of the assault her mother was asleep in the lounge room and her grandmother was in her caravan. JS - sexual intercourse with SW on 28 December 1993 (OLC 5508/4)

The fourth charge preferred against JS alleged an offence under s 61J(1), of sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5508/4). This was particularised as having occurred on 28 December 1993 at Beacon Hill. This is an offence that is said to have taken place on JLW’s eleventh birthday.

AW and JS were also charged with the commission of offences under s 61J(1) arising out of the same incident. The charge against AW arising out of this incident was preferred at court on 23 June. The parties were agreed that the charge against LW relating to this incident was laid at court on or before 30 January 1995 (T 2670.45-52 and see committal transcript of 18 March 1996, 11).

Before moving to SW’s allegations concerning these events, it is relevant to note that as at December 1993 SW was seeing Douglas Keir for counselling. At the time the charges were preferred with respect to this incident MOD had available to him the first statement made by Mr Keir setting out the particulars of his contact with SW. Mr Keir had seen SW on 20 December 1993 and on 10 January 1994. Notable is the circumstance that no complaint was made with respect to the incidents said to have occurred on the night of JLW’s eleventh birthday.

In her third statement SW referred to paragraphs [104] and [105] of the second statement dealing with her account of JLW’s eleventh birthday. She now gave a new version. She said that Michael had actually left the house after dinner to go to a friend’s place. She went on: “[19] JS, EW and I had to watch while AW put his penis inside JLW’s vagina and LW put the penis shaped dildo thing, not the vibrating one, into JLW’s anus. While LW was doing that, JW had to put his fingers into LW’s vagina. When AW and LW finished with JLW, JW got on the bed and put his penis into JLW’s vagina. [20] I had been made to sit with EW on the desk watching. LW and JS made me lie on my side on the desk and I had to take my jeans and underpants off. JS started putting the dildo thing into my anus and LW got the vibrating dildo and she put it into my vagina at the same time. While this was happening to me, and JW was on the bed with JLW, I’m not sure but from what I can remember, AW took EW out of the room to another part of the house. [21] After LW and JS had finished using the dildo things on me, I was allowed to go back into the lounge room and wait until Michael came back to take me home. LW and JS didn’t come out of the bedroom until Michael got back. I didn’t see where AW and EW were, but they must have been in EW’s bedroom. When Michael got back, we went straight home. I was upset but I didn’t say anything to Michael.” JS - sexual intercourse with SW between 4 September 1993 and 6 April 1994 (OLC 5508/5)

The fifth charge preferred against JS was under s 61J(1) and was a count of sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5508/5). It was particularised as occurring between 4 September 1993 and 6 April 1994 at Manly Vale. The material relied upon in support of this count would seem to be paragraph [22] of the third statement: “I refer to paragraph [114] of my statement where I spoke about AW and LW continuing to come around to my home at … , Manly Vale. JS would sometimes call around with LW, and if it was the school holidays, they would sometimes bring JW, EW and JLW with them. JS and LW would have sex with me by putting their fingers into my vagina. Sometimes when JS and LW came around they brought the dildo things with them and they used them on me by putting one into my vagina and the other one into my anus.” JS - sexual intercourse with SW at Manly Vale (OLC No. 5508/6)

The next charge preferred against JS was a further count of sexual intercourse with SW without her consent in circumstances of aggravation (OLC No. 5508/6). This is the offence that is alleged to have occurred at the Manly Vale premises on 18 March 1994.

It will be recalled that in the second statement SW described an assault on Friday 18 March when her parents called to her Manly Vale home. She said she had been told to be home. She said that she had been made to undress and lie on a plastic sheet. She was subjected to various assaults involving, among other things, the use of a dildo. In the statement dated 13 September SW now claimed that JS was present on this occasion. At paragraph [25] she said: “As soon as LW started using the dildo by pushing it into my vagina, JS then joined in and took it in turns with LW using the dildo inside my vagina. After LW took the dildo out of my vagina, JS and LW licked the blood off it. JS also forced her fingers hard up inside my vagina which caused a lot of pain and then she licked the blood off her hand.” JS - sexual intercourse with EW between 1 and 30 November 1992 (OLC 5508/7)

Two charges were preferred against JS arising out of the allegations made by EW. The first charged an offence under s 61J(1) of sexual intercourse with EW without her consent in circumstances of aggravation (OLC 5508/7). It was particularised as having occurred between 1 and 30 November 1992 at Beacon Hill. The material relied upon in support of this charge is contained in the interview with EW conducted by Constable Nicholson on 10 June 1994 (at A. 15). It is EW’s account of the assault on the occasion of her first menstrual period. I have dealt with this at paragraphs [316] and [317] above. JS - sexual intercourse with EW between 1 and 19 April 1994 (OLC 5508/8)

The final charge preferred against JS (OLC 5508/8) charged an offence under s 61J(1) of sexual intercourse with EW without her consent in circumstances of aggravation. It was particularised as taking place between 1 and 19 April 1994 at Beacon Hill. This charge relates to the last time that EW claimed to have been sexually assaulted. In her interview with Constable Nicholson conducted on 8 June 1994 EW gave an account that JS had licked menstrual blood from her vagina after her mother had done so (at A. 46).

As I have noted, certain of the charges preferred against JS at the time of her arrest on 15 September 1994 were withdrawn at or shortly prior to the committal hearing in March 1996. Three charges, each returnable before the Downing Centre Local Court on 18 March 1996, and each naming MOD as the informant, were preferred against JS. These were: OLC 5508/9, 5508/11 and 5508/12. The bench copies form part of exhibit C. Charge case 5508/9 replaced charge case 5508/1, charge case 5508/11 replaced charge case 5508/3. Charge case 5508/12 appears to be a new charge. It was preferred under s 61E(2) and alleged that between 5 February 1982 and 4 February 1983 at Beacon Hill JS incited SW to an act of indecency with JS, SW being under the age of sixteen years, (between six and seven years). This charge appears to depend upon the same material as that which I have set out at [650] above relating to charge case 5508/1.

All the charges preferred against JS terminated in her favour with her discharge on 21 June 1996. JS’ claim of unlawful arrest

Detective Holloway had no knowledge of the investigation prior to arriving at the Dee Why Police Station on the morning of 15 September. At that date SW had made three statements setting out the history of sexual abuse to which she claimed to have been subject. The Cruickshank statement and the second statement were each lengthy. Together they comprised seventy-nine typewritten pages. The third statement was eight typed pages in length. It was necessary, in order to understand the allegations contained in it, to refer back to the second statement. In addition to these three statements SW had participated in a short interview with MOD dated 7 September 1994. In assessing the allegations made by SW it was also relevant to have regard to a statement that she made on 30 August 1994 concerning JS’ visit to the high school and her concerns arising out of that incident. EW had made more than a dozen statements to the police detailing aspects of her allegations about the sexual abuse to which she had been subject or of which she had been aware.

Detective Holloway was not able to say which of the statements made by SW and EW he had read on the morning of 15 September: he considered that he may have read one statement made by each girl.

Detective Holloway was invited to read each of the statements made by EW and SW during the course of this hearing. Having done so he was able to say that he had not been supplied with all of them prior to arresting JS. To the best of his recollection he had not been given the Cruickshank statement nor SW’s second statement. He had not been given a number of EW’s statements.

Detective Holloway had some two hours or so in which to familiarise himself with the material that was given to him before he arrested JS. His best recollection of what MOD had told him was that it was along the lines, “The information is reasonably consistent. Here’s the statement. Make up your own mind” (T 2183.10-12). Detective Holloway said that he had taken into consideration the claimed consistency of the information. Inconsistency in the accounts was a matter that would have concerned him.

Detective Holloway said that in September 1994 charge sheets were computer generated. The informant would supply the station sergeant with the dates of the particular offence, the defendant’s name and the particulars of the charge. It would be a matter for the informant to determine the provision of the Crimes Act under which the charge was brought. Detective Holloway said that one would consult the Indictment Book to make the appropriate selection. He was not able to remember whether he had a copy of the Indictment Book when he attended at the Task Force office on that day. Detective Holloway could not recall how long it took to select the appropriate charges to be preferred against JS or how complex the task had been.

Detective Holloway said that it was a short drive from the family home to the Dee Why Police Station. On arrival at the police station he had taken JS to an interview room. He had obtained some particulars from her in the interview room. Within a fairly short time she had been taken to the charge room.

On 14 September, after taking SW’s statement, MOD recorded in his duty book that he reviewed the events chart for the W investigation. He conferred with Detective Sergeant Yeomans about SW’s statement and reviewed the available evidence of allegations made about JS. He was on duty from 8:00 am until 11:00 pm on that day. Between 7.00pm and completing duty that night, MOD recorded that he “continued review of evidence. Attended to indictments relative to allegations. Off duty”.

Detective Yeomans was asked whether he had any involvement in the preparation of the charges that were laid against JS. He said he did not think so, but he was not sure (T 1295.39).

Detective Yeomans recorded in his duty book that he returned to the police station at 7:00 pm on 14 September and liaised with MOD re Task Force Maitland. He recorded that among his duties that night he attended to statements and to formulating the charges against JS. I think the probability is that Detective Yeomans was involved in assisting MOD with the formulation of the charges that were preferred against JS the following day. His role was a subsidiary one.

MOD and Detective Yeomans’ duty book entries suggest that they formulated the charges on the evening of 14 September. A further pointer to the charges bearing the hand of MOD, and not Detective Holloway, is the circumstance that OLC 5508/1 contained the same error with respect to the nature of the charge and the dates particularised as the charge preferred by MOD against LW arising out of the same incident.

Detective Holloway’s attention was directed to the statement of facts signed by him at the time JS was charged. His recollection was that the offence of carnal knowledge required proof of penile penetration. He was unable to explain how a grandmother had been charged with carnal knowledge of her granddaughter. When the particulars of charge case 5508/1 were drawn to his attention he said that it was possible that digital penetration satisfied the definition of carnal knowledge. I took Detective Holloway’s first response, namely, his belief that carnal knowledge required proof of penile penetration, to suggest that he would not have preferred a charge of carnal knowledge against JS had he turned his mind to drafting a charge based upon paragraph [7] of SW’s third statement (that JS had digitally penetrated her vagina).

In cross-examination Detective Holloway accepted that he may have received some assistance from MOD in drafting the charges. SW’s third statement did not assist him to particularise the date of the charge relating to JLW’s eleventh birthday; this was information that was likely to have come from MOD.

JS was charged at 11:08 am on the morning of 15 September. The evidence suggests that Detective Holloway returned with JS to the police station around 10:45am. Detective Holloway had no recall of being given a draft of the charges by MOD or Detective Yeomans. The likelihood is that he was. He had not more than two hours to read the statements of the two complainants. There was little more than twenty minutes between returning to the police station with JS and the commencement of the charging process. It is unlikely that in this space of time Detective Holloway was able to select from the statements the allegations that were to form the basis of the charges.

Paragraph [7] of SW’s third statement refers to paragraph [20] of her second statement. Detective Holloway agreed that he had not had access to the second statement. He said, “As I understood it, there was no information relevant to JS contained in those statements” (T 2198.43-44). He had not considered it necessary to go back and check earlier statements made by SW because MOD had told him the representations made by her in her third statement were consistent with her earlier representations.

Detective Holloway was taken to OLC 5508/4, the allegation that JS had sexual intercourse with SW on 28 December 1993. This was the date of JLW’s eleventh birthday. The facts sheet signed by Detective Holloway particularised the offence charged as one involving anal penetration of SW with the manipulation of an object. The allegations that SW made concerning this incident were that at the time she was assaulted in that fashion by JS each of her younger siblings were present in the same room and were themselves being sexually interfered with. Detective Holloway agreed that in the normal course he would have looked to see whether SW’s allegations received confirmation in the accounts given by the other siblings. The fact is that SW’s allegations concerning this incident receive no support from the accounts of her siblings, whom she claimed were present.

Detective Holloway’s attention was directed to the account SW offered in the second statement of the assaults that had taken place in the family home on the night of JLW’s eleventh birthday, and to SW’s claim that JS had been in the lounge room with SW’s boyfriend, Michael, at the time that her parents assaulted JLW in the master bedroom. It was only in the third statement that SW came to place JS in the master bedroom as a participant in the sexual misconduct. Detective Holloway was asked (at T 2203.25-29): “Q. If you had been given the first account as well as the second account without further investigation you would not have contemplated laying any charges, would you? A. I would have been looking for a substantial explanation.”

After Detective Holloway’s attention was drawn to the fact that SW had made no allegation of sexual impropriety relating to JLW’s eleventh birthday in the Cruickshank statement, he agreed that he would have looked for substantiation of her allegations had he been aware of the earlier versions that she had given. He was asked (at 2204.54- T 2205.24): “Q. And having been put in possession of the additional information I now have put before you, you would agree that you would not have been in a position as at 15 September 1994 to have formed a belief that JS was probably guilty of the offence nominated in the charge at tender bundle 61? (A reference to OLC NO. 5508/4 – the charge relating to 28 December 1993). A. Maybe not to that level. Whether or not that would have taken away from suspicion that she had in fact committed the offence. Q. Let’s just come back to my question. You would not have been in a position to have been of the belief that she was probably guilty of the offence disclosed at tender bundle 61 on the information available, had it all been given to you? A. It would depend on what other explanations were proffered as well. Q. Well you had no other information pointing to such guilt, did you? A. No, but I wasn’t aware of this either. Q. Okay. I’m not being critical of you in the sense that you were not told any of those things, were you? A. No. Q. They were concealed from you, weren’t they. A. Well, I wasn’t told about them.”

Detective Holloway’s attention was next directed to OLC 5508/6, which charged the offence of sexual intercourse with SW on 18 March 1994. He was taken through the earlier inconsistent versions SW had given of this event to MOD and to Sergeant Cruickshank. His attention was drawn to the circumstance that three days after the event SW gave an account to her psychologist in a counselling session in which she made no reference to the presence of either her mother or grandmother on the occasion of the assault upon her. He was asked (at T 2209.38 - 54): “Those shifts again would have been matters of great concern to you, wouldn’t they, had you known of them back in September of 1994? A. Yes, they would have been of some concern. Q. And they would have taken singly and, could I suggest, taking the ones I have pointed out to you, in combination, have produced in your mind a sense of disquiet about the reliability of the complainant. A. Well, to the point of where I would have been looking for explanations as to why. Q. And would have at the very least deferred the question of whether charges, and if so what charges, ought be laid against JS? A. Depending on the explanations that I was given I perhaps may have, yes.”

Detective Holloway’s attention was directed to the charge that JS had sexual intercourse with SW without her consent at Manly Vale between 4 September 1993 and 6 April 1994. He agreed that the material relied upon by him in preferring this charge was that set out in paragraph [22] of SW’s third statement. That paragraph in turn referred to paragraph [114] of the second statement. As noted, he did not have access to that statement. The statement of 13 September made no reference to the dates during which SW had lived at the Manly Vale premises. Detective Holloway agreed that he must have had assistance from MOD in formulating the particulars of this charge. After having his attention directed to SW’s earlier and inconsistent accounts relating to events at Manly Vale, Detective Holloway agreed that the matter called for explanation. He was asked (at T 2213.8-34): “Q. And you wouldn’t have preferred charges without having got explanations of a satisfactory character, would you? A. As I say, it depends on what the explanations were, and how quickly they were proffered. Q. But without one … A. No. Q. … you would not have formed the belief that you regarded as necessary for the laying of charges, would you? A. Sorry, you are saying, having been aware of these previous two statements … Q. Yes. A. The fact that the matters were still disclosed in the statement that related to her would have given rise to suspicion, but perhaps prudence might have dictated a delay. Q. If I could put it to you in the form I put it to you earlier, you would not have formed the belief that JS was probably guilty of the offence without having first got a satisfactory explanation for the shift, would you? A. I think it would be fair to say that. No, it is fairly extreme, being guilty of the offence.”

Detective Holloway went on to say (at T 2214.26 – 32): “No. I would say that my terminology would be ‘reasonable cause to believe that they had committed an offence’, not that they were guilty of it. That’s a matter for a court; quite simply, to put the matter before a magistrate or other jurisdiction to have that determination made. There was sufficient evidence to do that.”

Detective Holloway’s attention was directed to OLC 5508/2, the charge that alleged that JS had sexual intercourse with SW at Mona Vale in the period between 27 January and 31 July 1993. This material is set out in paragraphs [11] - [14] of the third statement. Again, in that statement SW refers to allegations made in her second statement. Relevantly, at paragraph [12] of the later statement she said, referring to the second statement, “I said that LW took me into the bedroom with JW, while JS, EW and JLW stayed in the lounge room. JS didn’t really stay in the lounge room, only EW and JLW did.” It was suggested to Detective Holloway that had he been in truth exercising independent judgment concerning whether or not to prefer a charge against JS arising out of this allegation, he would have wished to see the earlier statement that she corrected in this respect. He did not recall noticing this matter before. He had not sought to obtain confirmation from SW’s siblings who were said to be present on the occasion. Detective Holloway said he was under the impression that JW had been charged with offences and, as I understood it, that in light of that circumstance he would not expect to look for corroborative material from that source. After having his attention directed to the earlier and inconsistent version relating to events at Mona Vale, on the occasion when SW claimed she had been sexually interfered with in the bedroom, Detective Holloway agreed that had he access to that information, it would have caused the need for clarification. It was put to him (at T 2220.24-28): “Q. Indeed, on the material, if you had both of those versions, you could not have laid charges without further investigation on 15 September 1994? A. It may have been prudent to seek advice or postpone it, yes.”

With respect to the charge preferred against JS relating to events at Beacon Hill between 26 July 1993 and 4 September 1993, Detective Holloway agreed, after being shown SW’s earlier statements, that the variation in her account was such as to require explanation (T 2221.40).

Advice had been given to MOD by a solicitor employed in the ODDP that the allegations contained in EW’s interviews of 8 and 10 June relating to JS were an insufficient basis on which to charge her. Detective Holloway was not informed of this advice. Had he been aware that such an opinion had been offered, and had he been made aware of the inconsistent versions that had been given by EW, he said that it was probable that he would have approached the ODPP for advice concerning the matter before proceeding to arrest and charge JS.

An examination of MOD’s duty book entry for 15 September provides no explanation for why he did not arrest JS himself. Accepting for present purposes that he was overburdened there is no explanation as to why he procured Detective Holloway for this purpose. Detective Holloway had no involvement in the investigation before the arrest of JS or after it. Detective Yeomans, who had been involved in the investigation from the outset, and who would appear to be the person next to MOD with the greatest knowledge of it, was on duty on 15 September. Indeed, Detective Yeomans drove to the family home in order to point out the location to Detective Holloway, but for reasons that were not explained, took no part in the arrest.

Detective Yeomans acknowledged that while the arrest of JS was effected by Detective Holloway, he understood that it was carried out at the direction of MOD (T 1269.34). He agreed that he would have expected MOD as the officer in charge to have carried out the arrest of JS. MOD did not discuss with him his reasons for arranging for Detective Holloway to attend to this task.

In the result, the decision to arrest JS was made by an officer on the basis of information supplied to him by MOD that was to the knowledge of MOD incomplete and misleading. MOD’s verbal briefing that the information was “reasonably consistent” was grossly misleading. To have provided Detective Holloway with this selective and incomplete summary of the investigation with the invitation that he make up his own mind was disingenuous. Detective Holloway did not exercise an independent discretion in arriving at the decision to arrest JS. The defendant has not established that the arrest and detention of JS on 15 September was lawful. JS’ claim in malicious prosecution

JS pleaded causes of action in malicious prosecution and, in the alternative, in abuse of process. Reasonable and probable cause

I turn to JS’ claim of malicious prosecution. The first question is whether JS has established the absence of reasonable and probable cause with respect to the institution of proceedings against her on 15 September for the eight offences. The only evidence available to support each of the charges was the unsupported account of SW and EW respectively. Both had given inconsistent accounts on earlier occasions when under an obligation to tell the truth. EW had admitted to fabricating serious allegations against both her parents.

Detective Holloway was not challenged as to his belief at the time he charged JS that the probability of her guilt was such that on general grounds of justice the charges against her were warranted. As noted, his belief was based upon an incomplete knowledge of the investigation. I am satisfied that MOD made the decision that JS would be charged with the eight offences. He was the person responsible for the institution of the prosecution of JS in respect of each of these offences.

It is necessary to bear in mind the nature of the allegations. Sexual offences are frequently committed in circumstances in which there will be no witnesses available to corroborate the complainant’s account. The circumstance that a complainant comes forward with a complaint months or years after the incident not having made any complaint at the time does not necessarily bear on the credibility of the account. It is recognised that there may be good reasons why the victims of sexual offences do not complain.

MOD was not prepared to charge JS with criminal offences based on the allegations made by EW. He said that he would not take action against JS without some information tending to provide support for EW’s allegations. Although the account given by SW in her third statement was not likely to be admissible in support of a prosecution based on EW’s allegations, nonetheless I accept that the fact that she, too, alleged that her grandmother was involved in acts of sexual abuse was a matter that was open to a prudent investigator to take into account in deciding whether to prosecute JS on the allegations made by EW or SW. However, SW’s account in the third statement seems to me to have been so unsatisfactory in light of the matters to which I have already referred that objectively a person of ordinary prudence and judgment would not have concluded that a prosecution of JS upon her allegations was warranted. I am of the same opinion with respect to a prosecution upon the allegations made by EW.

I am not persuaded that MOD believed that upon general grounds of justice that the prosecution of JS on these eight charges was warranted. There was absent reasonable and probable cause for the prosecution of JS on the charges preferred against her on 15 September. Malice

It remains to consider whether MOD has been shown to have been actuated by some collateral or improper purpose such that his decision to institute the prosecution of her on these charges can be characterised as malicious. One motive advanced by the plaintiffs as MOD’s reason for instituting the prosecution against JS was his desire to avoid the complainants being cross-examined in the apprehended personal violence order proceedings. It is clear that MOD discussed this issue with John Boyd and Jill Cash of the ODPP. However, it seems to me to be a speculative leap to move from this to a conclusion that he was motivated to charge JS with these offences in order to avoid that result.

MOD’s conduct in arranging for Detective Holloway to arrest JS and to be named as the informant in respect of the charges that he, MOD, had drafted, has not been satisfactorily explained. MOD gave evidence that he had involved Detective Holloway in the arrest of JS because the investigation had grown into a very large one and he was not able to undertake this task himself. I do not accept that account. As I have noted, Detective Holloway had no role other than as the token informant.

I am unable to say what MOD’s motive was in procuring the charging of JS with the eight offences on 15 September. I am persuaded that it was a motive other than one borne of MOD’s belief in the probability of her guilt such that he considered upon general grounds of justice that the prosecution was justified. Had he been of that view he would not have engaged in the artifice of bringing Detective Holloway into the investigation and misleading him as to the strength of the evidence against JS. The selective briefing afforded to Detective Holloway seems to me of itself to evidence malice in the sense that MOD had some improper or collateral purpose for instituting the prosecution. I am satisfied that JS has made good her cause of action for malicious prosecution in relation to the prosecution of each of the eight offences with which she was charged on 15 September.

The charges against JS were returnable before the Manly Local Court on 5 October 1994. No evidence was led concerning the conduct of the proceedings on that day. The appearance recorded on behalf of the informant on the charge sheet was not the subject of evidence. On 26 October 1994 the charges were again before the Local Court. On that occasion the charge sheets record that “Cash” appeared. In light of the evidence concerning Ms Cash and the acknowledgment that she was at the time in the employ of the ODPP, I infer that not later than 26 October 1994 the Director had taken over the prosecution of the charges against JS. For the reasons earlier given, I do not find that MOD was responsible for the maintenance of the prosecution after that date. The further charge preferred against LW – the assault on the night of JLW’s eleventh birthday

In her third statement SW gave an expanded account of events in the family home on the night of JLW’s eleventh birthday. I have referred to these in paragraph [663] above. Either on or before 30 January 1995 a charge was preferred against LW arising out of these allegations. It was a charge under s 61J(1) of having sexual intercourse with SW without her consent in circumstances of aggravation (OLC 5159/20). This charge was returnable before the St James Local Court on 30 January 1995. It will be recalled that Michael was present at the family home on this occasion for at least some of the celebrations associated with JLW’s birthday. His attention was not directed to the matter in the interviews conducted with him by Detective Yeomans and MOD. There was nothing to support SW’s extraordinary and inconsistent account. For the reasons that I have earlier given I consider that there was absent reasonable and probable cause for instituting the prosecution of LW in respect of this charge.

MOD was named on the charge sheet as the informant in respect of this charge. He was named as the informant in respect of all the charges preferred against LW. This is so in the case of charges that were laid in court during the currency of the committal proceedings. The transcript of the committal proceedings on 18 March 1996 records that the Crown Prosecutor foreshadowed that some additional charges would be laid and that some charges would be withdrawn and other charges substituted for them. She noted that there had been a number of amendments to the Crimes Act relating to sexual offences and that it had become clear that some charges had been preferred under the incorrect provision (transcript of the committal hearing 18 March 1996, 9 -10).

The defendant submitted that I would be satisfied that as at 30 January 1995 the Director had taken over the prosecution of all charges against the plaintiffs and that the inference to be drawn was that MOD did not exercise an independent discretion in preferring this further charge against LW. The charge married up with the one preferred against JS relating to the same incident. The only reasonable inference was that those responsible for the conduct of the prosecution of all charges were responsible for the decision to prefer this charge. In support of this counsel drew attention to MOD’s duty book entry for 30 January 1995. This would suggest that MOD was on rest days on that day and the preceding two days. This does not mean that he could not have been the moving force behind the institution of LW’s prosecution on this charge. However, I note that the entries in his duty book in the days leading up to 30 January tend to support the inference for which the defendant contends, in that it appears MOD’s duties were no longer focussed on inquiries associated with Task Force Maitland.

I have concluded that it is probable that the decision to prefer the charge against LW on or before 30 January 1995 arising out of the allegations made by SW in her third statement was made by a person having responsibility for the overall prosecution of the charges against the three plaintiffs. Conclusion – further charges and abuse of process

For the reasons that I have given I do not find that MOD or any of the police officers were responsible for the institution of the fresh charges at the committal hearing against any of the plaintiffs. The determination to do so was that of the Director.

I am not satisfied that AW has established his causes of action in false imprisonment or malicious prosecution.

AW also pleads a cause of action in the tort of abuse of process. This claim is particularised in the three respects that I have set out at paragraph [35] above. No submissions were advanced to explain how the cause of action in abuse of process was put on AW’s behalf. This cause of action must fail. I am not persuaded that the criminal process was used in an effort to justify his unlawful arrest. While I consider aspects of the investigation to have been poorly conducted, I am not persuaded that the criminal process was used in an effort to conceal an earlier negligent or improper investigation. I have not found that MOD utilised the criminal process in order to conceal and foster his illicit relationship with SW.

By her third further amended statement of claim LW also pleads a cause of action in abuse of process. This too is particularised in the three respects that I have set out at paragraph [35] above. LW has succeeded on her causes of action for false imprisonment arising out of her unlawful arrest and detention and in her cause of action for malicious prosecution with respect to the institution of proceedings against her for the two offences on 19 April and their maintenance until 23 June but not otherwise. Her claim pleaded in the alternative of abuse of process particularised in paragraph 30 (b) and (c) of her third further amended statement of claim has not been made good for the same reasons as I have stated with respect to AW’s claim. DAMAGES Principles in awarding damages

I turn to a consideration of principles with respect to the award of damages for the torts of false imprisonment and malicious prosecution. The principles with respect to the former were discussed by Clarke JA in Spautz v Butterworth (1996) 41 NSWLR 1 at 12-18. In that case his Honour drew attention to the risk of blurring the distinction between ordinary and aggravated compensatory damages (at 15.A). These observations have equal force when dealing with damages for malicious prosecution.

False imprisonment and malicious prosecution are both torts which touch not only upon the individual’s liberty, but on her or his reputation, and it is appropriate that this be reflected in the calculation of damages. In Ruddock v Taylor [2003] NSWCA 262 Spigelman CJ observed at [49]: “Damages for false imprisonment cannot be computed on the basis that there is some kind of applicable daily rate. A substantial proportion of the ultimate award must be given for what has been described as ‘the initial shock of being arrested’ ( Thompson v Commissioner of Police of the Metropolis [1998] QB 498 at 515). As the term of imprisonment extends the effect upon the person falsely imprisoned does progressively diminish.”

Aggravated damages are compensatory in their nature and it is necessary to avoid double counting: State of NSW v Riley (2003) 57 NSWLR 496 per Hodgson JA at 528-529. In that case his Honour noted: “This means that, if a court has awarded damages for hurt feelings as part of ordinary compensatory damages, the award of aggravated damages must only be for the difference justified by this approach, that is, an award of so much as is necessary to bring the damages to the upper end of the available range.”

Exemplary damages are awarded in order to punish the wrongdoer and to deter others from like conduct: Gray v Motor Accident Commission (1998) 196 CLR 1.

In Spautz, Clarke JA held that where a plaintiff is entitled to compensatory damages for wrongful arrest and false imprisonment that it is appropriate that the court in assessing ordinary compensatory damages take into account the whole of the conduct of the defendant to the time of verdict which may have the effect of increasing the injury to the person’s feelings. In an appropriate case this may include the absence of an apology and the reaffirmation of the truth of the matters. This is not a case in which I consider it appropriate to take considerations of this character into account. It is not meaningful to attempt to assess the measure of hurt to feelings brought about by the absence of an apology in this case where LW was charged with a large number of related offences in respect of which I am not persuaded that her prosecution was malicious. Damages - LW

I have concluded that LW has succeeded on her claim for false imprisonment arising out of her unlawful detention on 19 April and for malicious prosecution with respect to the two charges preferred against her on that day. LW’s unlawful detention commenced around 4:05 pm. She was charged with both offences at 9:19 pm. She was released on bail around 11:00 pm. After the conclusion of the ERISP LW was taken to the charge room of the police station. She was fingerprinted and her photograph was taken. She was placed in the dock. LW had not previously been in a police station. She hated the experience.

On her return to the family home she found that her children had been taken into care by DOCS. When asked how she felt about this she said that it was hard to describe. It was clear that LW’s distress at that time, and in the months that followed, was in part as the result of actions taken by DOCS rather than by the police. Nonetheless, the experience of being arrested, fingerprinted, photographed and charged with having sexual intercourse with her daughter was plainly of itself a source of considerable distress to LW.

LW gave some evidence that ultimately she lost her employment at the school canteen as a consequence of the prosecution of the charges. This occurred nearly a year after her arrest. It followed the appointment of a new principal to the school, who told her that she would have to leave because she was viewed as being a danger to children. This had made her feel awful. Since that time LW had done some ironing work at home for a while and had obtained part-time work in the canteen at a retirement village.

Her loss of employment and the impairment in her earning capacity did not arise from the prosecution of her on the two charges preferred against her on 19 April or the maintenance of the prosecution between that date and 23 June.

In the period following her arrest LW did not have contact with her children. This was a source of distress to her. Her bail conditions included a restriction on contact with the children. She was only able to regain contact with the children as the result of a bail application in this Court. Following this she was able to see the three children in a room at the Manly DOCS office in the presence of a DOCS officer and two lawyers. Her mother and AW were also present. This contact visit lasted for about two hours. LW said that she had missed the children and felt awful as the result of the enforced separation.

Following LW’s arrest and the removal of the children she suffered from depression. Dr Blom, her general practitioner, described her as “chronically depressed and in a constant state of grieving over her loss” (report dated 1 May 2000).

LW was assessed by Dr Roberts, a psychiatrist. He described her as presenting as a distressed, depressed person. He considered that she had suffered a significant degree of depression and anxiety arising out of what he described as “her involvement in this matter”. Dr Roberts was of the opinion that LW had, as the result of these events, become a profoundly impaired person within the criteria for that condition specified in the American Medical Association’s Guides to the Evaluation of Permanent Impairment (3rd ed). Dr Roberts considers that LW suffers significant impairment in daily living, social functioning, concentration and adaptation. Her capacity to enjoy, to function and to obtain satisfaction from her children (and potentially grandchildren) in Dr Roberts’ opinion has been ruined.

The medical evidence addressed LW’s condition in the context of events that include the sudden removal of her children from her care, the circumstance that each child was for a time to make allegations of sexual impropriety against her and her husband and the institution and maintenance of the charges preferred against LW on 23 June.

As I have observed, I am concerned with the award of damages to compensate LW for her false imprisonment and the malicious prosecution of charges 5159/1 and 5159/2 for the period 19 April until 23 June 1994.

By her third further amended statement of claim LW claims damages for “nervous shock, loss of humour, energy and enthusiasm, anxiety, stress and sequelae, personality changes” together with medical costs, both past and future, general damages and damages to her reputation, together with special damages relating to legal expenses, telephone calls and travelling expenses and both aggravated compensatory damages and exemplary damages.

No evidence was led with respect to the particulars of special damage. In light of my finding that LW has failed with respect to so much of her claim as relates to the institution and maintenance of the prosecution of the charges on 23 June and the later charges preferred at court in January 1995 and March 1996, the claim for legal expenses and the other particulars of special damage would, in any event, have largely failed.

There was no evidence with respect to LW’s past medical costs, nor is there any basis identified in the evidence in light of my findings for an award for future medical expenses.

LW was unlawfully detained for a period of approximately seven hours. Her arrest and the subsequent institution of proceedings against her on two counts of having sexual intercourse with her daughter without the daughter’s consent, in the absence of any evidence to support either count, was carried out with a high-handed disregard for LW’s rights. In addition to ordinary compensatory damages for injury to LW’s feelings this is an appropriate case in which to include a component for aggravated damages to reflect the humiliation and indignity to which she was subject.

The defendant submitted that an award of exemplary damages should not be made in a case such as this where the wrongdoer is not a defendant and where liability is vicarious. Such a contention does not seem to me to accord with the reasoning of the Court of Appeal in Adams v Kennedy [2000] NSWCA 152 per Priestley JA at [36]: “The amount should also be such as to bring home to those officials of the State who are responsible for the overseeing of the police force that police officers must be trained and disciplined so that abuses of the kind that occurred in the present case do not happen.”

I consider that an award of exemplary damages is appropriate in order to mark the Court’s disapproval of the conduct and to deter police officers from abusing power in the way that MOD did. It remains appropriate that the award exhibit restraint: H Luntz, Assessment of Damages for Personal Injury and Death (Sydney: Butterworths, 4th ed, 2002) at [1.7.6]; Commonwealth of Australia v Murray (1988) Aust Torts Reps 80-207, 680-038 at per Priestley JA at 680-052.

For these reasons I propose an award of damages for the second plaintiff, LW, made up as follows: In respect of her false imprisonment on 19 April 1994: (i) $15,000 by way of general and aggravated compensatory damages; (ii) $20,000 exemplary damages. For her malicious prosecution on OLC 5159/1 and 5159/2 the sum of: (i) $20,000 in general and aggravated compensatory damages (ii) $45,000 in exemplary damages. Damages – the estate of the late JS

JS’ causes of action survive for the benefit of her estate pursuant to s 2 of the Law Reform (Miscellaneous Provisions) Act 1944 .

JS said that she had been placed in a room at the Dee Why Police Station in which there were little bars in front of her. The door had not been closed and there had been other persons present in the room. She described a counter and persons standing at it. I understood JS to be describing a period during which she was seated in the dock in the charge room of the police station. Her fingerprints were taken and her shoes were removed.

When asked how long she had been detained at the police station, JS said that it had seemed to be all day, but that it may have been about an hour or so. Her son had come and collected her from the police station. While she was at the police station a police officer inspected the contents of her handbag. From the time she was informed of her arrest to the time her son collected her from the police station she said that she had felt “awful, terrible” (T 136.1).

JS also felt terrible when she attended Manly Court and was charged in court with the various offences.

JS suffered asthma and panic attacks in association with her arrest and charging. She was prescribed sleeping tablets. Prior to her arrest she had not taken sleeping tablets.

Dr Roberts, psychiatrist, conducted a medico-legal examination of JS on 13 February 2003. In his report he detailed her history, including that she had been diagnosed with bronchiectasis in 1988-1989 and that she suffered from emphysema and asthma. She had a number of additional physical complaints, including osteoporosis, arthritis and a goitre which she described as obstructing her respiration, but which she was not in a sufficiently fit state to undergo surgery to relieve. At the time of Dr Roberts’ examination JS was receiving oxygen supplementation on a fulltime basis. She gave an account of sleep disturbance, breathing difficulties and sensations of panic. She described a distressing incident that she said had happened when she was at court, when she had been compared to Fred West, a man who had killed a number of people in the United Kingdom. Dr Roberts noted that JS had not undergone specialist psychiatric treatment, but that her family doctor had prescribed sleeping pills for her.

Dr Roberts went on to express the opinion that: “She is clearly distressed on considering these matters – it is difficult to separate certain physiological concomitants that would be found in a reactive state from her other physical conditions. It is my opinion that JS as a result of the matters under consideration has developed an adjustment disorder with anxiety and depressive mood , that such a reactive state is primarily the result of the case being the subject of this matter, although her general health must impinge upon her general perception of wellbeing.”

Dr Roberts considered JS’ adjustment disorder to be chronic because the effect of the prosecution upon JS and the family remained unaltered. In this respect he referred to the permanent alteration that had been worked between JS and her grandchildren and the disruption associated with one of her sons and his family. I understood the latter reference to be to PS and YS.

To the extent that Dr Roberts considered JS to have developed an adjustment disorder with anxiety and depressive mood arising out of the “matters under consideration”, it is apparent that he was expressing an opinion taking into account the break-up of the family following the DOCS decision to take the children into care and the course of the prosecution against her.

I am concerned to award damages to the estate of JS in respect of her causes of action for false imprisonment on 15 September, being an occasion on which she was detained for something of the order of one and a half hours, and the institution of the prosecution against her for offences of a sexual nature involving her granddaughters, SW and EW. This does not involve compensation for the maintenance of the prosecution between 26 October and the termination of the proceedings in her favour on 21 June 1996.

MOD’s conduct in procuring the arrest of JS and in instituting the prosecution of this elderly woman for sexual offences on her granddaughters was a high-handed and most humiliating interference with her rights. The fourth further amended statement of claim brought by LW as trustee for the estate of the late JS includes claims for out of pocket expenses and exemplary damages. As to the latter I note the provisions of s (2)(a)(i) of the Law Reform (Miscellaneous Provisions) Act 1944 . No evidence was led of out of pocket expenses or of the special damage pleaded in paragraph [33].

The estate of JS is entitled to general and aggravated compensatory damages on her causes of action in false imprisonment and malicious prosecution. Taking into account JS’ age and frail health at the date of her unlawful detention and the effect upon her of being charged with sexual offences involving sexual intercourse with her granddaughters I consider an appropriate award to be: For wrongful arrest and false imprisonment the sum of $25,000 by way of general damages and aggravated compensatory damages. For the malicious institution of the prosecution against her of charges of sexual offences against her granddaughters, SW and EW, general damages and aggravated compensatory damages in the amount of $40,000.

For these reasons I make the following orders: 1. Verdict and judgment for the defendant on each of the claims brought by the first plaintiff; 2. Verdict and judgment for the second plaintiff in the sum of $35,000 with respect to her claim for false imprisonment and $65,000 with respect to her claim for malicious prosecution; 3. Verdict and judgment for the estate of the third plaintiff in the sum of $25,000 for her claim brought for false imprisonment and $40,000 for her claim for malicious prosecution; 4. I will hear from the parties on the question of costs and interest. The proceeding may be relisted for submissions on these two outstanding matters on three days’ notice.