Networked Knowledge - Media Report

This version of the report has been prepared by: Dr Robert N Moles
Underlining where it occurs is for editorial emphasis]

South Australia homepage
Go to: A state of Injustice - table of contents
Go to: Losing Their Grip - The Case of Henry Keogh - table of contents

On 4 August 2008 891 ABC radio reported “DPP defends the handling of an alleged sexual abuse case involving a former foster [Tom Easling] carer”

The Director of Public Prosecutions has defended the handling of an alleged sexual abuse case involving a former foster carer. Last year Thomas Easling was acquitted of 18 child sex charges and is now claiming the Department of Families & Communities bungled the investigation. The DPP reported to the Attorney-General on the case last week but the Opposition MP, Iain Evans, has called for a public inquiry. Director of Public Prosecutions, Stephen Pallaras, has criticised Mr Evans for questioning the handling of the prosecution: (891ABC 11am & 639ABC 11am) “This is a very courageous decision by Mr Evans, to go into bat in this case in which there were eight, no less than eight, individuals who were prepared to point the finger at one individual and say that that man offended. Mr Evans is putting his credibility right on the line here in going into bat in this case.”

Mathew Abraham: Right, now the case for the Prosecution. We had the case for the Defence with Lindy Powell, QC last week, and she spent a fair bit of time talking about the Tom Easling matter, this carer, a foster carer who was charged, a lot of concerns about the way that was processed, certainly with the Internal Investigations Unit of Families and Communities, and eventually was found Not Guilty. Stephen Pallaras QC, is our Director of Public Prosecutions.  

David Bevan: Good morning Steven Pallaras. Let’s start with the Easling case because as Matt said we spent quite a bit of time last week talking to Lindy Powell who represented Tom Easling in court and she said, look this is pretty much the case as I saw it from my point of view and obviously it’s going to be in the news for some time yet, because a well-known Liberal politician has taken up his cause, that’s Iain Evans, the member for Davenport and Iain Evans is gathering support within the Parliament for some sort of inquiry into the way that case was managed. Now my understanding is the government has asked you the DPP to revisit that case and have a look at it. What exactly have you been asked to do in relation to Tom Easling?

Mr Pallaras: Can I get to Mr Evans after making a couple of preliminary comments? Because it’s important that I think I make it very clear that nothing that I say about the Easling case should ever be interpreted as not accepting the verdict of the jury. We totally accept the verdict of the Jury, that’s a system we’ve got, they’re the rules that we play by, and that trial like all other criminal trials was conducted on the basis that the accused man was entitled to the benefit of any reasonable doubt and in this case Mr Easling is now entitled to say the prosecution could not prove that he was guilty beyond reasonable doubt. The problem however with some of the discussion that I heard last week about the case, arises from the fact the juries never give reasons for their verdict and neither the defence nor the prosecution can ever claim to know why a verdict was returned. Now a number of allegations were made by the defence during the trial, and we will never know despite what Lindy said last week, we’ll never know what the jury thought of the allegations. They may have thought there was something to them, or they may have thought as the defence said that they were just a bunch of rubbish. Now without knowing what the reasons are, we can’t claim to know why a verdict was returned - that’s an important point. But a number of impressions were left last week from the defence point of view, rightly so from Lindy’s perspective, that I think were unbalanced and I think need to be corrected, and before I can comment on Mr Evans, may I have a minute to respond to those?

David Bevan: by all means, and before you do that, could you just remind us, Mr Easling was charged with a number of offences relating to a number of children that were in his care as a part time foster carer?

Mr Pallaras: That’s exactly right.

David Bevan: And he was acquitted on all counts?

Mr Pallaras: that’s right.

David Bevan: All allegations of abuse he was acquitted on?

Mr Pallaras: That’s right.

David Bevan: And that’s pretty, I think that’s sufficient for the discussion?

Mathew Abraham: Isn’t he entitled to say, do you say he’s entitled to say, that he was…

Mr Pallaras: … that the Prosecution were not able to prove his guilt beyond reasonable doubt.

Mathew Abraham: Isn’t he entitled to say he’s innocent?

Mr Pallaras: Well the Jury are not empowered to return any other verdict other than guilty or not guilty.

Mathew Abraham: But under our legal system you’re innocent until proven guilty?

Mr Pallaras: Absolutely.

Mathew Abraham: Ok.

Mr Pallaras: … absolutely, but the verdict itself is one of not guilty, the verdict, the jury don’t come back and return a verdict of Innocent, so the verdict of not guilty means that the prosecution could not prove his guilt beyond reasonable doubt and he is entitled to that verdict. Five allegations, I just wanted to pick up very quickly, that were made during the trial and were repeated on your program last week. One, that the investigators were trawling for victims; two that there was a recognised protocol that the investigators ignored; three that no notes of interview were ever taken; four that the SIU, the special investigations unit had a motive for getting evidence against Easling, namely that it was about to be disbanded and five, the most worrying of all, that there was a possibility that witnesses may have been coached in what they were saying.

Now the trawling for victims allegation: what the investigators did after the first allegation was made against Mr Easling, was to find out how many other boys had been under his care. To see, after speaking with them if any of them had any allegations to make. Now, Ms Powell said on your program and this made it quote, “pretty easy for people to make up allegations”, the investigators were criticised for naming names, as between the complainants; and it’s my information that not one complainant was given the name of another complainant during the investigation. All that they did, the investigators, was lead the complainants in their discussions to topics, they raised topics such as: what outings have you been on, massages, the use of alcohol, tickling, those sorts of issues that they wanted to direct the complainants attention to which is a perfectly proper way to conduct the investigation.

Now, the next point was the question of protocols were not followed; the implication is that there was a recognised protocol as to how to go about investigating sex offences cases in this State. What wasn’t mentioned was this so-called protocol was the opinion of one man whom the defence flew over from Canada [Fred Kaufman QC] to have a chat to, a trip paid for by Mr Easling as he’s entitled to and that man gave no evidence whatsoever before the jury. Now to suggest that there is any accepted protocol active in Australia or in SAPOl which was ignored, is simply false. There is none.

David Bevan: Should there be?

Mr Pallaras: Well, I don’t know that you can. Because every investigation has its own peculiarities and the real question is, is the investigation under scrutiny, fair or not fair. I think fairness I think has to be the common denominator, but if you tied down the hands of investigators with certain protocols then it may not fit every case, so I don’t know that it should.

Very quickly, I know that I’m taking time, no notes of interview were taken, it was suggested. That’s simply incorrect also. What the investigators did again was that they began taking hand written notes from people they were speaking to - and you have to remember that there were dozens of boys that these investigators needed to speak to. There were dozens of boys who had been under the care of Mr Easling. So they took some notes. They found that that was a very slow process to get through these numbers. They converted those written notes onto a typed disc and saved them and from then on used a dictaphone to speak to people and you would think that there would be little complaint about that.

Mathew Abraham: Sounds a bit Mickey Mouse though doesn’t it? Like, if you’re an experienced investigator and you know you’re going to talk to lots of people and you know how long it takes to write notes, what - you just suddenly decide you’ll start taking recordings of the conversations, and there was a situation where according to Lindy Powell and they established this with phone records, that the investigators were talking to one particular witness for a good hour before they started taking any notes or record of conversation.

Mr Pallaras: Well I’m not sure that that’s right at all. No, it doesn’t sound Mickey Mouse at all to me. You’ve got to remember that there were two people investigating. They had an enormous task, to get through. They had, as I said, dozens of boys who they had to get through and prepare if there was a case, and prepare a case to go to prosecution. It seems to me to make sense that if you’ve got a dictaphone that that’s what you’d do. Why would you handwrite every note if you can record it? As they were recorded.

But I’ll move on - the other, the last two allegations - one was that the SIU, the special investigations unit had a specific motive for getting evidence against Mr Easling because according to the defence it was about to be disbanded. Now, when you look to see at the trial what evidence was produced to justify that, there was absolutely none. It was a bald allegation made by the defence and by the way the SIU is still in existence today and is in a larger form than it was then, so - so much for the specific motive of getting evidence against Mr Easling.

The last allegation, and it’s the most disturbing: that there was a quote ‘possibility’ unquote that witnesses were coached in what to say. Now that’s a very serious position to take because if it’s true then the, not only the investigators but the complainants may well have committed perjury. Now, in our rules of practice, in our trial practice, we are not counsel either for the defence or the prosecution, are not permitted to make allegations against the witness unless there is some evidence upon which to base it, or some evidence upon which an inference can be made that that allegation is true. And importantly - and this is the most important point, I think, that allegation has to be put to the witness when the witness is in the witness box. He can’t wait until the witness has given their evidence and then left and then make an allegation about that witness - it’s important to put it to them there, because that gives them opportunity to respond and in terms of fairness that’s what the rules say. Now, when we look at this trial, it was never put to either the investigators or the complainants that they either coached the complainants or that their evidence was a result of being coached by the investigators. Now that speaks volumes. But by raising the possibility of it happening, the defence are able to take the benefit of the smell that it creates about the investigation without having to show one skerrick of evidence that there was that coaching.

David Bevan: There are two sets of investigators in this case thought aren’t there, there’s the SIU, the special investigations unit which is set up within the Department and then there is the investigation conducted by the police?

Mr Pallaras: That’s right

David Bevan: Are you satisfied with both sets of investigations?

Mr Pallaras: Well I’m not in a position to say that I’m totally satisfied about anything because I don’t have all of the details. I’m not dissatisfied about anything that I’ve heard. If the only allegation against the SIU is that they didn’t take notes, then I’m not satisfied that that’s correct, if the allegation is that they were trawling for victims that is a nonsense - they were obliged to ask these children whether there was any other incident, or whether there was any incident that they had to complain, they were obliged to, that was their obligation and their duty. So as currently advised, I’m satisfied that it was an appropriate investigation as currently advised.

David Bevan: From both sets of investigators, both the SIU and the police?

Mr Pallaras: Yes, well it’s important to remember too that I think even the defence position at trial was that once the police were investigating they had no complaints about that at all.

David Bevan: And Lindy Powell said that to our listeners last week. She is very happy, very satisfied with the way the police conducted themselves there, their focus was on the SIU and they said they were  satisfied that that part of the investigation was done properly and that as a result of that by the time the police got into it the whole process was contaminated.

Mr Pallaras: Well, that is really with respect, a defence strategy that is quite often used, and one which in my opinion in most cases and this is not relating to this specific case, but in most cases is a nonsense.

Mathew Abraham: The - who advised you that the SIU practices were above board?

Mr Pallaras: We had three very able prosecutors on this case, and I’ve spoken with each of them.

Mathew Abraham: But where does their advice come from? That’s their assessment of it?

Mr Pallaras: Yes.

Mathew Abraham: As they were told what, by Families and Communities?

Mr Pallaras: Well, they had been speaking with the witnesses who were called in the trial, so they presumably had spoken to the SIU investigators themselves.

Mathew Abraham: Mmm, but there’s been no, and are you planning an independent review of that, rather than having the accused judge themselves, in this case the investigators the SIU branch?

Mr Pallaras: No.

Mathew Abraham: You’re not going to plan an independent review?

Mr Pallaras: No. If I was to have independent reviews every time defence had a complaint I’d be doing nothing else. Just remember that there was an application made before the trial began in relation to splitting the trials up in relation to each count. Had there been any serious allegation of corruption, or malpractice by the SIU, that was the time to bring it to the court’s attention and we would not have got to trial had a court found against us. It was never done so, so no, the answer is no.

David Bevan: We’re talking to Stephen Pallaras QC, he’s the Director of Public Prosecutions, he’s happy to take your calls on any matter but we thought we’d better first of all address this issue of the matter of Tom Easling because it’s getting a lot of publicity. A chap who worked for the public service for many many years was accused of various improprieties and abuse of children that had been in his foster care. It went to trial eventually and he was acquitted on all counts. All counts. Walked out of the court a free man. Stephen Pallaras, a number of people aren’t satisfied at leaving it there and Iain Evans, the Liberal Member for Davenport has asked for some sort of Royal Commission or special inquiry. Now the Premier as I understand it has through the Attorney General asked you to take a look at this case.)

Mr Pallaras: Yes.

David Bevan: Where is that at?

Mr Pallaras: The situation is this; after just about every case that has any publicity or notoriety the Attorney asks for a report, which I get via my prosecutors and then make any amendments I need to and pass it onto the Attorney. We’ve already done that once. We were then asked for a second report and that has been completed. A very detailed report has been completed and delivered to the Attorney some time, at the beginning of last week I think it was. Now on the 24th of July, Mr Iain Evans telephoned me and said that as a matter of courtesy he was advising me that he was about to release a media release calling for a Royal Commission into this particular case and he said to me then that I was not to take it as any personal attack or as any attack at all on any of the prosecutors, for which I thanked him for the courtesy - and then I waited as he was going to fax in the media release and surprise, surprise how he could ever take the view that when he calls in his media release for an investigation into the appropriateness of prosecution decisions as not being an attack on the prosecution has got me beat. But let me say this, to both to Mr Iain Evans and to any other politician who wants to put his hand up and contribute in this debate, this is a very courageous decision by Mr Evans. Very courageous indeed to go into bat in this case in which there were eight - no less than eight individuals who were prepared to point the finger at one individual and say that that man offended. Mr Evans is putting his credibility right on the line here, in going in to bat in this case. Now, long ago when I first arrived here the DPP seemed to be everybody’s favourite whipping boy and if Mr Evans or anyone else wants to attack the appropriateness of decisions in a case where there are eight victims, eight complainants, then I can only say to him and others that we will not - we will meet those challenges and we will answer with as much force and as much logic as we can.

David Bevan: He’s also questioned whether the DPP should be looking into the way the DPP and the police and the SIU manage this because you were all together working as a team, that’s my word - not his - but effectively you’re a team putting together a case

Mr Pallaras: The investigation is all over when we get it. Let’s not confuse the issue. What we are delivered is a case and then we take that case to court. We are a team in that sense but in no other sense. But Mr Evans is saying that some of the decisions may not have been appropriate. Now I will say that in any case that I can contemplate at the moment, if I ever get any other case in which eight complainants make a complaint against an individual I will prosecute that case, because not only does my duty require me to do so but I would think that the community would expect me to do so.

Mathew Abraham: The jury obviously preferred the word of Tom Easling to the eight alleged victims.

Mr Pallaras: You can’t say that Matthew. You can’t say what the jury preferred and what they didn’t prefer. The only thing you can say, which is my first point is that because there was a verdict of not guilty the only assumption that you can confidently make, I mean we can all guess about what they thought, but the only assumption that you can confidently make is that the prosecution did not satisfy the jury beyond a reasonable doubt of his guilt.

David Bevan: Martin has called from Salisbury East: I don’t want to particularly refer to this case, but let’s take coaching. My feeling is and I would certainly draw the inference of coaching if an investigator had spoken to somebody for one hour before they turned the tape recorder on and I would want to know, were they passing the time of the day, I’d want to know exactly what was spoken about in that hour if in fact that suggestion by the defence is true; I think that’s a fair inference to draw

Mr Pallaras: One of the allegations that was made in this case related to one of the particular complainants whose statement was, audio taped I think it was about five o’clock and the evidence was that the police or the investigators arrived at three o’clock so the issue then was, if they arrived at three what were they doing between three and five and a great song and dance was made about this gap in time. In fact the evidence was that the person that they went to see was not there at three o’clock and did not arrive until shortly before the tape was started so it’s one thing to make an allegation about missing time and then raising all the suspicions about what might have happened, but when you look at the evidence and you see, which was unchallenged by the way, that he was not present, it’s hard to imagine how he could be interviewed when he’s not there.

Rosemary - I’m not sort of talking about this case that they were just talking about, but with the new changes with double jeopardy law, I understood that then the juries would be able to have a third option you know of instead of just guilty or not guilty, they could say unproven.

David Bevan: That’s a good question Rosemary, Stephen Pallaras how are these new laws going to work?

Mr Pallaras: As far as I understand the application of the law is that they apply only in exceptional cases, in cases of serious criminal offences and in which there was evidence, which was unavailable at the first trial. So what happens I think, what is envisaged, is if there say is a murder case, the fellow is charged with murder and is acquitted on the evidence that was then available and subsequently some perhaps DNA evidence is found or because of advanced techniques they are able to further identify the individual who was the murderer and that then identifies the man who was on trial, that in circumstances such as that, the Crown will be allowed to re-bring the trial against them.

David Bevan: So the Crown would have to establish that there was no way your Honour that we could have known about or had access to this new information and the best example of that would be because the technology simply didn’t exist?

Mr Pallaras: Yes.

David Bevan: So it wasn’t that we were slack in our job, we just got some new technology to allow us to take another look at it?

Mr Pallaras: That’s certainly the spirit of the law, we’ll have to wait and see how it’s applied, but that’s what’s intended, yes.

Mathew Abraham: What about the possibility of having, and is this I think a US thing that you have something not proven?

Mr Pallaras: It’s a Scottish thing.

Mathew Abraham: Ok, is there any merit in that? Is there any merit in that?

Mr Pallaras: It might save a lot of arguments about what the jury thought, yes. Other than that, I think guilty or not guilty is enough. We’ve got, given the jury enough choices already. But it may well save a lot of hypothesising about what they thought and what they didn’t accept

David Bevan: Now we’ve quickly, run out of time, we appreciate your patience in working through that particular case of Easling, but last week our listeners would have seen extraordinary events played out on the TV where in another case a trial had to be aborted because a juror it appears was talking to the defendant during one of the breaks. Now have you seen anything like that before? What are the rules surrounding juries what can and can’t they do, what are your comments? Can you put the events of last week in some sort of context for us?

Mr Pallaras: Yes, I have to say however that I won’t comment specifically on that case because it may come to my desk sometime this week or next week, but generally speaking in every criminal trial juries are given very strict instructions by the judge at the beginning of the trial before any evidence is called, as to the cans and can nots, the dos and do nots and one of the strict do nots is don’t speak to anybody. There can be no doubt that this judge in this trial gave that direction, and there can be no doubt that it’s clear and easy to understand. They know that they should not speak to people outside their own juries, they know that certainly shouldn’t speak to an accused or a lawyer and in most cases it’s hard to understand why someone wouldn’t realise that.

David Bevan: It’s so important the judges, they have like, it’s written out for them I imagine at the start of each trial, you just read through this set of instructions because it needs to be put on the record that it was given.

Mr Pallaras: Absolutely and people sometimes don’t know that they shouldn’t be speaking to others, who aren’t in the trial, but for that reason it’s made very, very clear to them at the beginning of the trial, do not do it.

Mathew Abraham: Even to family members isn’t it?

Mr Pallaras: Even to family. They’re warned against going home and telling people what happened in court today. They say, wait ‘til the end of the trial and then you can speak to whomever you wish but don’t speak to anyone in the corridors, don’t speak to your workmates, don’t speak to your mates or your friends or your family, don’t speak to anyone other than your jurors.

David Bevan: What I found incredible though, was that there was vision of this on our TVs that night, can you explain how that got to be there?

Mr Pallaras: My knowledge is a bit sketchy but what I think happened is that the conversation between the juror and the accused took place in a hotel, and that there was security cameras in the hotel and the vision from those cameras was seized.

Mathew Abraham: And presented in court?

Mr Pallaras: And resented to the judge yes.

David Bevan: And by the prosecution?

Mr Pallaras: Yes.

David Bevan: Right, so they heard about it, they seized it, they presented it to the court so that the judge would have evidence, and make a ruling.

Mr Pallaras: We heard about it, I think because defence counsel told us that his client had come to him and said ‘I’ve had a chat to the jury number X, the defence counsel as was proper mentioned it to the prosecutor who then mentioned it to the court.

David Bevan: Right, so the defence, this gets back to what we were talking about with Lindy Powell last week and that is that the defence counsel have obligations as officers of the court and as soon as they were told that something that should not have happened, has happened, they were obliged to tell the prosecutors, prosecutors looked into it, got hold of the video, presented it to the judge and it’s wham bam thank you maam.

Mr Pallaras: That’s right and Mr Algy to his credit did precisely that.

Mathew Abraham: Stephen Pallaras QC thank you for coming in.

Top of Page