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Legislative Council - Fifty-Second Parliament, Second Session (52-2)
2013-05-15 Daily Xml
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O’GRADY, MS K.L.

Adjourned debate on motion of Hon. A.M. Bressington:

That this council urges—

1. The Attorney-General to refer the untimely death of Kirbee Louise O'Grady, who died on 19 July 2012, to the Coroner for coronial inquest; and

2. The Attorney-General to request an inquiry into all the circumstances leading up to Kirbee Louise O'Grady's death including, but not limited to:

(a) allegations of sexual assault;

(b) issues pertaining to the investigation and case management of the matter by the police;

(c) the decision of the Director of Public Prosecutions (DPP) not to proceed to trial;

(d) effectiveness of the support and follow-up process of the DPP pre and post-trial, including when matters do not go to trial; and

(e) any other circumstances that contributed to the death of Kirbee Louise O'Grady.

(Continued from 10 April 2013.)

The Hon. G.A. KANDELAARS (16:11): On behalf of the government I rise to provide a response to the Hon. Ms Bressington's motion concerning Kirbee Louise O'Grady. The private member's motion of the Hon. Ann Bressington urges the Attorney-General to refer the death of Kirbee Louise O'Grady to the Coroner for a coronial inquest into all circumstances leading to her death. Under section 21 of the Coroners Act 2003, if the Coroner decides that it is necessary or desirable to hold an inquest to ascertain the cause or circumstances of the death or the Attorney-General directs the Coroners Court to do so the Coroner must hold such an inquest.

Kirbee Louise O'Grady's death was reported to the Coroner on 20 July 2012. By letters dated 12 April 2013, the Coroner informed the parents of Kirbee Louise O'Grady that he had made a finding as to the cause of death and that it was not the intention of the State Coroner to hold an inquest into the death. The Coroner considered the circumstances surrounding the death of Kirbee Louise O'Grady in making his finding. The private member's motion of the Hon. Ann Bressington and the extracts from the Legislative Council Hansard of 10 April 2013 relating to the motion have also been brought to the attention of the Coroner. The Coroner confirms his finding and that it is not his intention to hold an inquest into the death.

The motion seeks the coronial inquest into the decision of the Director of Public Prosecutions not to proceed to trial. The decision whether or not to bring a prosecution in serious cases such as this is a matter for the Director of Public Prosecutions (DPP). The Attorney-General has received a briefing from the DPP on the matter. At the outset, it must be said that it is fundamental to the prosecution policy that a prosecution should not proceed if there is no reasonable prospect of a conviction.

A prosecution should not be instituted unless there is admissible, substantial and reliable evidence that a criminal offence has been committed by the accused. In criminal cases, the burden lies with the prosecution to prove every element of the offence beyond reasonable doubt. The initial consideration is whether the evidence is sufficient to justify the institution of a prosecution. In 2002, the DPP determined that there was no reasonable prospect of a conviction with respect to the allegations of sexual abuse made by Kirbee Louise O'Grady. The decision was made after the proofing of Kirbee by the prosecutor in 2002 as part of the process of the DPP in determining whether charges could be laid.

In 2012, Kirbee provided a further statement to police. The police investigated the matter, and the matter was again referred to the DPP for advice. Kirbee was proofed on 8 March 2011 by the prosecutor responsible for the advice. Kirbee was accompanied by an investigating officer, the witness assistance officer, her mother and father, her stepfather and her friend. The proofing itself involved Kirbee, the prosecutor, the investigating officer and the witness assistance officer.

In the course of proofing, several inconsistencies become apparent in Kirbee's evidence. These inconsistencies were canvassed with Kirbee during the proofing. Following the proofing, with Kirbee's consent, the prosecutor, the witness assistance officer and the investigating officer met with Kirbee's parents and stepfather in Kirbee's absence. The prosecutor advised her parents that a number of inconsistencies had arisen between the accounts given at the proofing and the previous accounts, which were not minor in nature and which might ultimately lead to the conclusion that Kirbee's memory was not sufficiently reliable to put her forward as the sole witness to the allegations. At this meeting, there was also discussion about the potential detrimental effect upon Kirbee of putting her through a process involving cross-examination.

On 9 May 2011, the Office of the DPP met with Kirbee and other members of the family to inform her of the decision that there was no reasonable prospect of a conviction. The DPP's clear advice to the Attorney-General is that the matter was carefully considered in 2012 and 2011 and that on both occasions the appropriate decision was made. It is the advice of the DPP that the reasons for the decision are compelling.

The motion also seeks a coronial inquiry into the effectiveness of the support and follow-up process of the DPP pre and post trial, including whether matters do not go to trial. The DPP provided a detailed briefing to the Attorney-General on the level of support Kirbee and her family were provided by the staff involved in the matter. It is the view of the DPP that Kirbee and her family were provided with professional and appropriate information and support, and that all the dealings were appropriate and sensitively handled.

The Witness Assistance Service provides a service to ensure that all victims of crime, vulnerable witnesses and their families have access to information and support services, and that they are aware of their rights and responsibilities when dealing with the criminal justice system. The services include providing information about the legal process, updates on the progress of a case, support services, attendance and support during meetings with solicitors and prosecutors, crisis counselling, intervention and debriefing in relation to the legal process.

The Office of the DPP's statement of prosecution policy and guidelines stipulates that all children and young people under the age of 18 years be referred to the Witness Assistance Service. The witness assistance officer responsible for providing information and support to Kirbee and her family specialised in working with children and young people who are the alleged victims of sexual abuse.

The DPP advises that there were considerable dealings with Kirbee and members of the family during the course of 2011 and 2012. The services provided and offered to Kirbee involved the provision of information in writing and via telephone; active support to Kirbee and her family during the proofing and during the meeting to advise of the decision; discussions regarding counselling options; assessment of supports and networks, such as family friends and professional support; and follow-up after the final meeting with the DPP.

The DPP advises that Kirbee had an extensive range of resources available to her. Kirbee had four people from her family and friendship network attend to provide support on the two occasions she met with the DPP. Her parents and a step-parent attended these meetings. Kirbee had a long-term counsellor at Child Protection Services with whom she arranged appointments as required, in addition to a psychiatrist with whom she had an appointment scheduled on the Thursday after the first proofing on 8 March 2011.

Kirbee advised her witness assistance officer that she was studying year 12 and that she had friends who were aware of the alleged abuse and who provided support to her. Kirbee's partner also attended both meetings at the Office of the DPP and appeared to be providing positive emotional support. It was noted that Kirbee had a significant network of supports, including friends, family and professional support, and the knowledge of how to access additional resources, if required.

Although clearly feeling under pressure due to the circumstances, and at times distressed and upset, at no time did Kirbee indicate to the witness assistance officer that she was having or had experienced suicidal thoughts. The witness assistance officer had provided Kirbee with her work mobile phone number and encouraged her to contact her if she had any questions or concerns or wanted information about other counselling options or resources. The witness assistance officer had extensive discussions with Kirbee's family members about the importance of focusing on Kirbee and her need for the family to support her and professional counselling, rather than the outcome of the legal process.

The witness assistance officer also encouraged family members to seek counselling to deal with their distress about the effects of the alleged abuse on Kirbee and the family, and their anger and frustration at the legal decision, and offered information about counselling options. The view of the witness assistance officer was that Kirbee was a well-supported young woman who had appropriate access to counselling services and supports.

The motion seeks answers, through the Coroner, to why Kirbee took her own life on 19 July 2012. The Coroner has considered the matter and determined not to conduct an inquest into the cause or circumstances of the death. The decision of the DPP not to lay charges in this case is not a matter for referral to the Coroner. Further, there is no basis for an inquiry into the support offered by the DPP in this matter. For these reasons, the Attorney-General will not be directing the Coroner's Court to inquire into the cause or circumstances of the death of Kirbee Louise O'Grady.

The Hon. S.G. WADE (16:23): This motion relates to the tragic death of Kirbee O'Grady—a much-loved South Australian. Kirbee was the victim of a sexual assault and in her speech on 10 April the Hon. Ann Bressington detailed the circumstances which led to Ms O'Grady taking her life in 2012. The key concern is that the management of the case by the police and the DPP contributed to Ms O'Grady's decision. On the evidence before us, the opposition is of the view that there are grounds to look further at these issues.

The Hon. Gerry Kandelaars referred to section 21(1) of the Coroner's Act which, as he said, provides:

The Coroner's Court must hold an inquest to ascertain the cause or circumstances of the following events:

(a) a death in custody;

(b) if the State Coroner considers it necessary or desirable to do so, or the Attorney-General so directs—

(i) any other reportable death...

I pause to note that that power is, in my understanding, a personal discretion under the act. Neither cabinet nor parliament could direct the Attorney-General to exercise that power, so my understanding of this motion, if we were to pass it, is that it would be an indication of the view of this council but that it would not mandate a referral in the way that, for example, a referral to the Ombudsman would be mandated.

Ms O'Grady took her own life and suicides are reportable deaths under section 3(1) of the Coroners Act 2003. The death was referred to the Coroner, who has advised the family that he does not intend to hold an inquest into Ms O'Grady's death.

As I said, the Attorney-General can direct the Coroner's Court to hold an inquest into Ms O'Grady's death by virtue of section 21(1)(b)(i). However, the opposition considers that the independence of the Coroner's Court should be respected and that this power should be used very rarely. My review of the Coroner's Court annual reports could not identify any examples of the Attorney-General having exercised this power.

The opposition agrees that the tragic case of Ms O'Grady's death warrants a review of the actions of the agencies of the state, in particular the police and the Office of the DPP, to see if any lessons can be learnt. However, we are not yet convinced that an inquest is the most appropriate form of such a review.

I have met with Ms O'Grady's mother and aunt and I am informed that the case is being looked at by the Police Ombudsman and that they will have a meeting with the Commissioner for Victims' Rights shortly. The Liberal Party supports seeking an inquiry into Kirbee's death but not, at this stage, seeking a direction to the Coroner.

I note that the government's response focuses on the Coroner's and the DPP's reaffirmations of the decisions and the actions of their officers. I would urge the government to consider the value of some form of arm's-length reassessment of the handling. I respect the advice that the Attorney-General has received and has made available to this council and I appreciate it, but I think that, from time to time, for the sake of the reassurance of the community, for the sake of the reassurance of the parliament but, most of all, for the sake of the reassurance of the family, there is value in an arm's-length review.

In the context of the opposition's view that an inquiry is warranted, but our lack of confidence that, shall we say, calling on the Attorney-General to direct a coronial inquest is the appropriate course of action, I have filed an amendment to the motion, which would have this council calling on the Attorney-General to commission an inquiry. I am open to further conversations with the member, the government, the Commissioner for Victims' Rights, the State Coroner and others as to the most appropriate form of inquiry.

If the motion does proceed to a vote today, I will be seeking the council's support for the amendment standing in my name. I understand now would be an appropriate time for me to move that amendment. I move:

Paragraph 1—Leave out this paragraph.

Paragraph 2—Leave out the word 'request' and insert in lieu thereof the word 'commission'.

The Hon. T.A. FRANKS (16:28): I rise on behalf of the Greens to indicate that we will be supporting this motion today and our disappointment that the government has chosen simply to reiterate the words that it has presented to us today without due consideration to the independence of the advice that it has been given. Anyone who has read the files can see that Kirbee was not only failed by the processes, she was probably also failed by the existing laws.

There is clear need for particularly vulnerable children to be afforded better protections with regards to child abuse in this state. We have a long way to go. Yes, we have come some way but there is a lot that we could do a lot better, and the Greens believe that any such measures that are taken to keep us continuing down that path are worthy of support. We commend the Hon. Ann Bressington for raising these issues in this place, because we do not see these issues being addressed by government. While I welcome the opposition's support for some sort of an independent review, I challenge the shadow attorney-general to ensure, should he be the attorney in a year's time, that we are not here debating another Independent member's call for this to be looked at, but that in fact it is being led by the government of the day.

The Hon. A. BRESSINGTON (16:30): I have to say, again, that I am not one bit surprised by the government's response to this. It seems that all government members in this place are capable of doing is just repeating the diatribe that is written for them. Obviously, the Hon. Mr Kandelaars did not read the information that was circulated about Kirbee's case—or I will assume that, given his response. The fact of the matter is that, after Kirbee had given a statement to police, after she was guaranteed that this would actually go to trial, that her case was not in fact closed but was put on hold until she was stronger in herself to be able to appear in court and to continue to trial, she was given that assurance and then, when she was strong enough and felt she was able to pursue the matter, she was told that parts of her files had gone missing from the Elizabeth Magistrates Court and could not be located.

I am now just going over my second reading speech. She was also told that her files were being held in several police stations around the countryside, two of which were Port Augusta and Elizabeth, and it is unclear why the file from a matter which was almost ready to go to trial in Adelaide would then be separated and sent to different police stations around the state and not kept in one safe and secure location. The missing parts of the files were eventually recovered, but the family to this day has never been shown the file, so they cannot say assuredly that the file given to the DPP was complete. Tell me that that is the usual way to handle such a matter, that somebody's file is distributed around the countryside to different police stations, that the commitment given to take this to trial when the young girl was stronger was then all of a sudden cut off and that commitment was not met.

There are situations that happen to individuals in this state that require this parliament and members of this parliament to oversee that processes are not being abused, that processes are not being overlooked. The fluffy answers that we get from the government over and over again, about how everything is fine and rosy in the state of SA, make me want to puke, because obviously that is not the case. There are people out there—individuals and families—who hurt, every single day, because of decisions to cut process short, to abuse process, or in fact to ignore it altogether; justice is not served.

The family of Kirbee O'Grady wants to see justice done. The idea of this is to bring a child abuser to justice. Nobody in this place on any of these levels ever seems slightly interested in pursuing a child sex abuser. With the other number of bills that I have put up here, for example, minimum mandatory sentencing, to try to bring child sex offenders to justice, to get them out of circulation, to bring them to account—no, not interested. This is just another case.

I will reluctantly accept the Hon. Stephen Wade's amendment, but I need time to consider whether I am going to further amend this motion as well. I do not believe that we need a blanket or open format for a commission of inquiry: I think we need to be quite specific about who will undertake that inquiry and, given that we have police procedures here being questioned, I do not believe that the Police Complaints Authority is the best body to undertake that inquiry.

On that, I will seek leave to conclude my remarks, and I will make my decision on whether I will further amend this motion or whether I will accept the motion of the Hon. Stephen Wade. I seek leave to conclude my remarks.

Leave granted; debate adjourned.

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