To the Director of Public Prosecution
19th March 2007
Application for a No Bill nolle prosequi
In respect of proceedings against the accused William Kamm.
The accused, William Kamm, was committed for trial in relation to allegations by one [Name Withheld] from a decision of Magistrate O’Connor at the conclusion of Committal proceedings on 24 November 2003. The trial of the accused is in respect of the allegations of [Name Withheld], commenced before His Honour, Judge Solomon DCJ, in the District Court Sydney on 29 January 2007, by reason of matters to be referred to and relied upon within this ‘No-Bill’ Application. The Jury was discharged in the trial and it was not adjourned initially to the 16 April 2007, and most recently to 7th May 2007 for trial. The accused seeks from the Director a decision that, relying upon the material contained in this application, the Director file nolle prosequi in respect of the proceedings against the accused.
I refer your attention to an application filed on behalf of Mr Kamm and previously determined by your office during the course of 2004. That Application refers in part to both [Name Withheld] the present complainant and [Name Withheld], the previous complainant. To the extent that there is a commonality in respect to matters referred to in that previous application. It is sought to resume those matters for your present consideration.
Submission One
The present Submission applies equally to prosecutions in respect of each alleged victim. It is a Submission, which effectively summarises the contents following. The complainants either immediately prior to an official complaint being made to police or during the course of the investigation by the police, combined at the insistence that the initiative and insistence of [Name Withheld] to give interviews to a TV Presenter, David Richardson, for presentation on Channel Seven’s Current Affairs program, Today Tonight. The Crown is in possession of the tape recordings of the unedited versions of these interviews which have yet to be published by way of broadcast related to the first case of [Name Withheld], after Mr. Kamm’s conviction in July 2005, but which demonstrate in their entirety that the potential for the tainting of this prosecution was, from the outset, both apparent and highly undesirable. The accused, Kamm, as he then was, was not given copies of these videotapes until the commencement of the proceedings in the first days of the Committal Hearing in March-April 2003.
The accused made available to the presiding Magistrate and to the Crown Prosecutor, Ms Lindy Rogers’ transcripts, which transcripts formed the basis for extensive cross-examination of each of the defendants in the course of the Committal proceedings.
It is submitted that the interference in the evidence-gathering process and the prosecution of serious criminal allegations should never be connected in any relevant fashion to the interference by media, in any guise, for fear of motive bias, prejudice and potential tainting of evidence. It is clear from a viewing of these video recordings, that the alleged victims and members of their families were encouraged by the presenter, Mr Richardson, to engage in cynical and glib references to Mr Kamm’s physical appearance, his personal habits and lifestyle, and his Religious beliefs. It is evident that Mr Richardson led them, in significant respects, to agree to propositions that, in the first instance, they had never raised as grounds of complaint. Further, these interviews were for reward, and were given pursuant to a contractual agreement entered into between the alleged victims and Channel Seven (or Today Tonight).
Notwithstanding the endeavours of the learned Crown Prosecutors, copies of those contracts have never been obtained; despite Mr Kamm making proper call for the same during the course of the proceedings. What further emerged in respect of the interviews was that they were to be made available for public broadcast on an exclusive basis, which was conditional upon the occurrence of a successful prosecution. The interviews contain material that is not present in the statements given to police and which, in many respects, utterly contradicts that material. It can be challenged because the evidence to assert this issue is clearly available. The tapes were in the hands of the police. The probability of the police having prior knowledge of the planned interviews is a distinct possibility by reason of the fact that the interviewer, Mr Richardson, appears, by references between himself and the alleged victims, and by his conduct at the interviews, to be in possession of statements given to the police by the victims. It is to be noted that to possess evidence before giving it to the Police, to use it in a trial contaminates the evidence, and as Mr. Richardson withheld evidence, it is a crime.
The further curious factor emerged in the course of the cross-examination of [Name Withheld], that the police told David Richardson of Today Tonight that the arrest of Mr Kamm was imminent at a time shortly prior to 8th August 2002. What emerges from the cross-examinations of [Name Withheld] at pages 38 et seq. is that prior to any complaints being made to the police in respect of the alleged conduct of the accused, both [Name Withheld] and her partner, [Name Withheld], were involved in lengthy negotiations with the media, clearly with Mr David Richardson of Today Tonight and with Hamish Adams of Channel Nine’s Sixty Minutes program.
From the cross-examination of [Name Withheld], it appears that she was likewise involved in these negotiations and that she and her sister [Name Withheld] also entered into contractual arrangements with the producers of the television program. A careful analysis of the examination of [Name Withheld] establishes the following matters in relation to the Today Tonight issue.
The initial meeting was conducted over lunch at a restaurant. It went for two to three hours and was not something that she told the police about when she made her complaint on 2nd August 2002 – (Transcript 4th Aug 2003, p. 38 et seq.).
Q: Is this before you made a statement to the police on 2nd August last year, do you recall – so that the record reflects this accurately your memory is not tested on this point, you know don’t you that you made a statement to the police dated 7 August 2002?
A: Yes
Q: Had you spoken with Mr. David Richardson about these allegations concerning Mr. Kamm before you made your statement to the police?
A: Yes.”
The complainant was reluctant in cross examination to reveal in detail the amount negotiated, amount paid, and the form which the payment took, she contends that Mr [Name Withheld] was the moving party in respect of the negotiations, the signing of contracts and the prime mover in the organising and conduct of the interview including the first meeting. No documents have been produced in the prosecution case to substantiate the claim made by [Name Withheld] as to the contractual terms and conditions on which agreement was struck between her, [Name Withheld] and Today Tonight. The finding of fact that the police know of the content of the Today Tonight interview is established by the following means:
In the interview, [Name Withheld] makes an allegation as to the date upon which the first act of intercourse took place. That date is clearly in contrast to the information that she has supplied to the police in an already existing statement, i.e. her first statement.
In a subsequent statement of the 8th August 2002, the complainant sought to correct the contention in her earlier statement of 2nd August 2002 as to the date concerning the first episode of sexual intercourse, i.e. to clarify the inherent mistake between the July 1994 and July 1995 dates. The inferences available that the police contacted [Name Withheld] having been aware of the content of the Today Tonight interview resulted in the making of the subsequent statement dated 30th August 2002. It is clear from the witness’s evidence that the police became aware at some stage of a fact of an interview being given by [Name Withheld] to Today Tonight and the police being seized of a copy of the document perusing it and bringing inconsistencies to the attention of [Name Withheld] for the purpose of offering her the opportunity to clarify what was clearly an inconsistent contention on her behalf. See page 78 of the transcript at pages 80–83, a summary appearing from the answers from [Name Withheld] emerges as to the form and number in a relatively short period of time over which she made conflicting and contradictory contention in respect of the dates of the alleged sexual assaults. (Transcript 4th Aug 2003, p. 78 et seq.).
“Q: That interview you gave Mr. Richardson?
A: Yes, I think they have a tape.
Q: When was that given to the police?
A: I’m not sure. I didn’t give it to them.
Q: Before Mr. Kamm was charged?
A: I don’t know, David Richardson never told me when he sent the tapes out.
Q: But you knew he was going to do that?
A: Yes.
Q: What I want to ask you is this, finally on this aspect. In the interview with Richardson you say what in terms of the age on which the first act of intercourse took place, do you recall?
A: I don’t remember.
Q: Sorry?
A: I don’t remember
Q: Is that an honest answer, Ms [Name Withheld]?
A: Yes.
Q: You made a statement to the police, didn’t you on 30 August in this matter? 30 August last year, correct?
A: Yes.
Q: Whose suggestion was it for the taking or the making of that statement, yours or the police?
A: Could you repeat that?
Q: Who suggested that you make a second statement to the police, the statement bearing the date 30 August 2002?
A: I don’t know, I think we got called in by the police.
Q: Who’s we?
A: Me
Q: Who called you in?
A: I think it was [Name Withheld].
Q: Did he tell you why he was calling you in?
A: I don’t remember.
Q: I’m sorry?
A: It was about the interview with Channel 7 I remember.
Q: Did he tell you something about the interview did he, about the content of the interview?
A: Yeah. Yes.
Q: What did he tell you?”
(Transcript 4th Aug 2003, p. 79 et seq.).
“A: He wanted to check the dates because it was different to my statement.
Q: What did you say to him when he told you that? Were you surprised?
A: At that stage I knew I’d made a mistake on the interview.
Q: What, before he told you or after he told you, that’s [Name Withheld]?
A: After he told me.
Q: And did he invite you to watch the video at the police station on that occasion, 30 August?
A: I don’t think so, I don’t remember.
Q: Well, according to your statement dated 30 August 2002, paragraph 9 records the following “This date I have watched a video of my interview with David Richardson from Channel 7”, do you recall telling that to the police on 30 August?
A: Yes.
Q: It means, doesn’t it, that on 30 August you watched the video of the interview, correct?
A: Yes, yes.
Q: Did you do that within the confines of the police station or elsewhere?
A: In the police station in a separate room there.
Q: I’m sorry?
A: In the police station.
Q: At Mr. [Name Withheld]’ invitation?
A: What do you mean?
Q: Did Mr. [Name Withheld] invite you to do that, watch the video?
A: He said I could if I wanted to, yes.
Q: And about making the second statement and supposedly correcting the mistake, whose idea was that?
A: The police suggested it and I told them I wanted to do it.
Q: Because the two couldn’t stand side by side, could they?
A: No.
Q: And you told the police that you had made a mistake, it was incorrect, and you confirmed what you had said in your first statement, and that was because of a reference to you sister [Name Withheld]’s 21st birthday?
A: Yes.
Q: But in a matter of weeks you have in three separate circumstances suggested inconsistent dates on which the alleged first act of intercourse took place, would you agree with that?
A: What do you mean?”
(Transcript 4th Aug 2003, p. 80 et seq.).
“Q: Your police statement of 2 August says age 14, your letter to Mr. Kamm in July of 2002 says 15, your statement in the interview or your answers in the interview to Mr. Richardson say 15, correct?
A: Yes.
Q: In a matter of a few short weeks on the same topic you’ve provided inconsistent answers or information, correct?
A: Yes.
Q: And this is notwithstanding you wrote the letter of 15 July; it’s your handwriting, correct?
A: Yes.
Q: Mr. [Name Withheld] didn’t suggest the date of the first act of intercourse, did he?
A: No.
Q: You told the police in the interview of 2 August or the statement of 2 August after the police officer assisted you by fixing your sister’s birth date a different day, a different year, correct?
A: Yes.
Q: And when you spoke to Mr. Richardson you make an error again, correct?
A: I spoke to Mr. Richardson before the police.
Q: Is that the interview?
A: Yes.
Q: Do you recall what you said to Mr. Richardson?
A: No.”
(Transcript 4th Aug 2003, p. 81 et seq.).
“Q: You answer was “14”, is that what you told Mr. Richardson?
A: Yes.
Q: Did you tell the police that it was at the age or 14 that you received letters from Mr. Kamm telling you you had to sleep with him?
A: No.
Q: Why not? Wasn’t sufficiently sensational for the police to know that, unlike your interview with Today Tonight?
Q: Why didn’t you tell the police what you had told Mr. Richardson?
A: I told the police that I had made a mistake with Mr. Richardson.
Q: Not as to the receipt of letters received by Kamm telling you you had to sleep with him, that wasn’t the mistake you revealed to the police, was it?
A: When I saw the program afterwards I told the police that there were things that I said that I was mistaken about.
Q: Your answer continues to Mr. Richardson’s question “And how old were you?” “But I never had intercourse with him until I was 15”, do you recall telling that to Mr. Richardson?
A: Yes.”
(Transcript 4th Aug 2003, p. 82 et seq.).
“Q: They’re reasonably empathic words, aren’t they? Do you know what that means?
A: No.
Q: The answer “I never had intercourse with him until I was 15”, is given in an air of certainty and confidence, is it not?
A: At the time, yes.
Q: No room for error or doubt or confusion, correct?
A: No.
Q: You agree with me, don’t you?
A: No.
Q: Well where’s the confusion in the words “I never had intercourse with him until I was 15”, where does the confusion appear from those words?
A: I don’t know.
Q: I mean this, the words you gave to Mr. Richardson in answer to his question admitted no confusion in your mind as to when the intercourse took place, it was 15, not 14, isn’t that the right–
A: Because it was the first time that I’d had to think about that time again.
Q: I’m sorry? It was the first time?
(No verbal reply)
Bench: First time she’d had to think about it was that time there.
Q: Well, that’s not correct if one looks at your letter of July 2002, it says 15 years of age as well, doesn’t it?
A: Because I’d shut it out.”
(Transcript 4th Aug 2003, p. 83 et seq.).
“Q: He then asked you on a different issue when did you have sex with him, that is how old were you, and you told him 15?
A: Yes.
Q: But it’s a year apart, isn’t it, between the two events on your version given to Mr. Richardson?
A: Yes.
Q: You told Mr. Richardson something you had not told the police?
A: Because that was before I spoke to the police.
Q: Why would your story change, your version change simply because you’ve told it to one party before the other, if you’re telling the truth it should be consistent shouldn’t it?
OBJECTION. WITHDRAWN
Q: That never stopped you writing the letter extorting money did it?
(No verbal reply)”
This submission which centres upon the inferences in the prosecution with the authorities of the media and the police continues in respect of the complainant [Name Withheld] in that the request of the producers of the current affairs show, 60 Minutes, on her admission, state a body sample from Mr Kamm being hair from a hairbrush for the purpose of obtaining a DNA test, not to establish any act of unlawful sexual intercourse, but to establish the paternity claim in respect of the child, [Name Withheld]. The clear and compelling submissions available to the accused that the integrity of the prosecution commenced against him is so tainted by the interference of the media, both in seeking the versions from the alleged victims for reward and that the police know that this was the case and rather than discourage, appear to have, if not encouraged, then stood back and tacitly approved of what occurred. It is clear that the police had in their possession the video tapes and interviews but, contrary to any principles of fairness, by way of disclosure, the prosecution was not in a position to make these documents available to the defendant and his representatives until the commencement of the proceedings in March-April, 2003. This submission is in no way intended to cast aspersions upon the conduct of the prosecution who in fact were particularly helpful in the obtaining of the material, ultimately. (Transcript 7th Aug 2003, p. 288 et seq.).
“Bench: In my view the prosecution has acted quite reasonably and fairly in serving this material, material that was not known to be in existence or available at the time the witness gave her statement and was therefore not referred to in the statement. The service on the defendant was as soon as practical after it became available. The material was served, together with the required notice and in sufficient time for the defendant to make an application to extend the limits of the existing order for cross-examination of the witness and I am prepared to do that.
“Had the matter been brought back before the Court for further order and I am not agreeing that this was necessary in the circumstances arising here, the Court would very likely have made an order for service and reply in the same time parameters set out in section 48GA and it would not have been available for the defendant at that time to raise any preliminary objection to the type of material the informant proposed to serve in the expectation of later making it admissible.”
“In general, and by way of summary, it is submitted that the conduct of the interviews must generate in the Director of Public Prosecution a sense of disquiet and grave concern as to the manner, mode and preparation of the interviews given. The involvement of [Name Withheld], the payment of unverified sums of money and the proximity of the arrest and charging of the defendant to the giving of the exclusive raises the prospect of the integrity of the prosecution process, coupled with this was the knowledge and involvement of various police officers, and the provision to the police of copies of the tape recordings, thereby permitting and requiring clarification of and elaboration of police statements (witnesses) is entirely inappropriate. See Transcript 7th August 2003 at pages 289–294 inclusive. Matter has emerged since the date of the preparation of the first application, which fortifies the need to have these proceedings brought to a halt. They are as follows:
- Mr Richardson and Channel 7 has lost relevant contractual documents relevant to the deal struck between them and this complainant and [Name Withheld].
- Mr Richardson has either lost or misplaced or never brought into existence any notes regarding his involvement with the complainant and [Name Withheld] and any history given by any party making allegations against Mr Kamm of sexual misconduct.
(Transcript 7th Aug 2003, p. 289 et seq.).
“Q: [Name Withheld], how was it that you came to give an interview to David Richardson from Today Tonight?
A: We were approached by [Name Withheld].
Q: [Name Withheld]
A: And [Name Withheld], yeah.
Q: The partner of [Name Withheld]?
A: Yeah.
Q: When did you first meet [Name Withheld]
A: I met him in about July last year.
Q: And of course you knew [Name Withheld]?
A: Yes, very well.
Q: When you say, “We were approached by [Name Withheld]”, do you mean yourself and your sisters?”
(Transcript 4th Aug 2003, p. 290 et seq.).
“A: Yeah, we, he sort of talked to us as a group, yeah.
Q: He addressed you as a group?
A: He spoke to all three of us at some time or other in a short period of time, a couple of days.
Q Do you mean by that that you were all together at that time or he spoke to you individually?
A: Individually yeah but we all spoke about it together, separately.
Q: Whereabouts was that meeting?
A: He originally came to my place down here and [Name Withheld] was with me and he brought [Name Withheld], and then we went to Sydney and I met him again at his flat with [Name Withheld], and then they came down to Nowra for the actual taping of the show.
Q: The initial question I asked of you was, how did you come to have or to give the interview to Mr. Richardson and you said that Mr. [Name Withheld] was involved in that process?
A: Yeah, he was.
Q: Do you understand or do you mean by that answer that Mr. [Name Withheld] arrange this interview on behalf of yourself?
A: He arranged it on behalf of [Name Withheld] and then he, or they asked us if we wanted to be included.
Q: When?
A: It was about July last year.
Q: Before the taping?
A: Yes.”
(Transcript 7th Aug 2003, p. 292 et seq.).
“Q: The fact of the meeting with Mr. Richardson, why would you need to tell him that?
A: He was the one that did my first statement and I told him of the meeting and if it would be okay.
Q: It’s not in your statement is it, the fact of the discussion concerning the meeting?
A: No.”
Submission Two – The handwritten letter (Exhibit 5 in the committal proceeding). Between the initial meeting of [Name Withheld], [Name Withheld] and Richardson at Rushcutters Bay and the giving of the interview of a letter (Exhibit 5) in the proceeding was written by [Name Withheld] and [Name Withheld] and forwarded to Mr Kamm in the circumstances which are detailed in the course of the cross-examination. Curiously, in respect of this document, it was a document, a copy of which was seized from the Kamm residence on that of the execution of the search warrant on 8th August 2002, but was produced as part of the documents served comprising the prosecution Brief of evidence. A letter is relevant for a number of purposes and the references to it in the course of [Name Withheld]’ cross-examination is extensive.
The salient features which attach to that exhibit and which in combination provided a compelling and powerful attack upon the veracity, credibility and reliability of [Name Withheld] are as follows. It is clearly a letter that constitutes on the face of it an attempt to extort monies. Part of the exhortation requires the payment of cash of the sum of $21,000 with ongoing weekly maintenance payments of $100. If Kamm agreed to the threat, then the police would not be notified as much is clear by the terms of the letter that unless Kamm buckled and paid the monies as requested, the police would be notified of the allegations, the terms of which are set out in the correspondence. The letter represents that the solicitor of [Name Withheld] has gathered evidence, which incriminates Mr Kamm in the alleged sexual activity complained of, but strangely, no such evidence is ever forthcoming. Whilst the letter is in the handwriting of [Name Withheld], it appears to have been dictated by [Name Withheld] – the first cross-examination in respect of the letter occurs between pages 42 and 50.
(Transcript 4th Aug 2003, p. 42 et seq.).
“Q: That wasn’t the first time that you’d sought money in respect of making allegations against Mr. Kamm was it, you understand my question don’t you? You had previously asked Mr. Kamm for money indeed threatened him that unless monies were paid to you, you would go to the police, correct?
A: Yes, that’s what [Name Withheld] said to William.
Q: No, no, what on his behalf or on your behalf or on both of your behalves?
A: Both of us.
Q: [Name Withheld] wasn’t alleging any sexual abuse by Mr. Kamm was he?
A: No
Q: Did you tell Mr. Richardson in the interview given Today Tonight that you’d threatened Mr. Kamm, you and Mr. [Name Withheld], you sought to blackmail him?
A: We told David Richardson that”.
(Transcript 4th Aug 2003, p. 50 et seq.).
“Q: Now in fairness to you at page 23 of the transcript on the last occasion at about .5, the Crown Prosecutor asked you:
“Q: Just let me ask you this [Name Withheld], in relation to those questions you were asked by the Magistrate, you indicated earlier that the first time you went with [Name Withheld] and William to the motel, that was around the time of the Soccer World Cup in 1994, is that right?
A: Yes, that was before I went to TAFE, I got my years mixed up there”
Q: Making mistakes in relation to the years in which these incidents occurred is not uncommon with you is it?
OBJECTION. QUESTION OR ANSWER. WITHDRAWN
Q: You told Mr. Richardson in the interview with Today Tonight that the first episode of intercourse was at the age of 15, didn’t you?
A: Yes.
Q: That was a mistake according to your evidence, wasn’t it?
A: Yes.
Q: You’ve not been consistent, you’ve suggested 14 years of age and then 15 years of age, correct?
A: Yes.
Q: And then sought to offer explanations for why the mistake was made, correct?
A: Yes.”
The most telling feature of the document, (Exhibit 5), is the conflict created by the complainant made in the letter concerning the first act of sexual intercourse alleged by [Name Withheld] against Mr Kamm as compared with her evidence in court, is not sought to set out in detail the questions and answers relevant to this matter, except to say that pages 46–47 demonstrate the issue with most clarity.
That was further complicated by a proper and relevant question asked to the witness by the bench in an attempt to clarify its understanding of the evidence, the relevant portion of the cross-examination being set out at pages 48–49 of the transcript of 4th August 2003.
(Transcript 4th Aug 2003, p. 48 et seq.).
“Q: We can do better than that [Name Withheld] we can remind you with clarity. The transcript at page 22 for the record about.45, This Magistrate asked you:
“Q: Do I take it then [Name Withheld] that sexual intercourse continued on a regular basis, this first occurrence in 1999 right up through until early ’94 to early 1999?
A: Yes.”
Q: And when did this incident occur where your sister was also there do you recall what year that was?
A: At the time I was going to TAFE, it was just after going to TAFE in Nowra, she–
Q: And how old were you when you went to TAFE?”
Q: Do you recall what you said in relation to that? What should you have said?
A: I was 14.
Q: “A. I was 16” is the answer recorded. You couldn’t go to TAFE at 14 could you?
A: I was thinking of the first time.
Q: His Worship asked you if you recalled when it was that you were with your sister [Name Withheld] when you went to a hotel with Mr. Kamm?
A: Yes that was later.
Q: And you focused on that question, at least you focused on your answer to that question by reference to when you were at TAFE an incident in your life, correct?
A: Yes.
Q: And you said 16, correct?
A: Yes.”
(Transcript 4th Aug 2003, p. 49 et seq.).
“Q: Are you able to put a time frame on when you went with [Name Withheld]?
A: I think it was during the Soccer World Cup in 1994.”
Q: That’s what you told the court isn’t it?
A: Yes.
Q: That can’t stand with what you told us how you answered his Worship’s questions; can it about TAFE and being 16 years of age?
There is a further complication in respect of the allegations of the first date of sexual intercourse in the Today Tonight interview as to point out to a witness at page 50 of the transcript of the 4th August 2003. See point 25 and onwards.”
(Transcript 4th Aug 2003, p. 50 et seq.).
“Q: Making mistakes in relation to the years in which these incidents occurred is not uncommon with you is it?
OBJECTION. QUESTION OR ANSWER. WITHDRAWN
Q: You told Mr. Richardson in the interview with Today Tonight that the first episode of intercourse was at the age of 15, didn’t you?
A: Yes.
Q: That was a mistake according to your evidence, wasn’t it?
A: Yes.
Q: That you sought to clarify by a police statement on 30 August last year, correct?
A: Yes.
Q: You had made mistakes when recalling the alleged date of the first act of intercourse haven’t you, on your own admission?
A: What do you mean?
Q: You’ve not been consistent, you’ve suggested 14 years of age and then 15 years of age, correct?
A: Yes.”
Between pages forty-four to fifty-three, the complainant sought to explain her contradiction in respect of the commencement of the act of sexual intercourse amongst other reasons, confusion in respect of the birth date of her eldest sister, [Name Withheld]. The matter is further complicated from the perspective of the prosecution by a demonstration in the cross-examination of [Name Withheld] that her claim that the incidents concerning the involvement of the complainant with Kamm and her sister [Name Withheld] were referable to the World Cup Soccer in 1994. See pages fifty-three of the transcript and onwards. At page fifty-six, points 15–40, a further mistake conceded by the complainant in respect of her recollection.
(Transcript 4th Aug 2003, p. 56 et seq.).
“Q: It was a relevant event in your life and in your memory that allowed you to recall when [Name Withheld] was with you and Mr. Kamm at the Sovereign Inn Hotel, correct?
A: Yes.
Q: Now if the World Cup of soccer commenced in June 1994 and finished on 17 July 1994 how do you explain what you’ve told us about this incident occurring in late 1994, after July?
A: Would you repeat the question?
Q: How do you explain, if what I put to you is correct, the World Cup of soccer was played between 18th June and 17th July 1994, how do you explain what you’ve previously told us, that you went with [Name Withheld] to meet Mr. Kamm at the Sovereign Inn Hotel in Wollongong in late 1994, after July according to your evidence when the World Cup of soccer was being played.
40 Q: What explanation do you offer for that sequence, if any, [Name Withheld]?
A: I made a mistake.”
Sum total being the complainant concedes yet another mistake, being of a critical nature by reason of its initial alleged significance, an event in the complainant’s life, enabling her to fix with the certainty the date relevant to the acts complained of. The prosecution fairly at page 62 accepted what was put in cross-examination to the complainant in respect of the date of the commencement and conclusion of the world cup soccer; see p. 62, points 10–15.
(Transcript 4th Aug 2003, p. 62 et seq.).
“Rogers: Yes, your Worship I was going to call evidence that that was the time period from Detective [Name Withheld], so that’s an agreed date.
Bench: If it’s agreed that the World Cup took place in those dates in June and July there’s no issue.
Stanton: I won’t burden the record any further.”
The next feature of significance emerging from exhibit 5 emerges at page 65 of the transcript of 4th August 2003 clearly the representation in the letter to Mr Kamm that a DNA report existed, connecting him the paternity of the child [Name Withheld] was not correct. Indeed, it was a lie.
(Transcript 4th Aug 2003, p. 65 et seq.).
“Q: It describes, doesn’t it, the evidence which [Name Withheld] has gathered, it claims [Name Withheld] has a DNA report, did he?
Q: Why did you put it in the letter in those terms if you didn’t know it was the case?
(No verbal reply)
Q: “The DNA report, which states that William Kamm and [Name Withheld] are the biological parents of [Name Withheld][Name Withheld].” If you didn’t know that that report existed and was in those terms why did you include it in the letter?
(No verbal reply)
Q: Do you have any explanation for us? Sorry?
A: I don’t remember.
Q: No, do you have an explanation for us?
A: For the reason why I wrote that?
Q: Yes, if it was not the case?
(No verbal reply)
Q: It was a lie, wasn’t it? The existence of the report in those terms was to your knowledge a lie, wasn’t it?
A: I didn’t know.
Q: Your letter in your handwriting says the DNA report states a certain fact, did you know that such a report existed?
A: I didn’t know.
Q: Did you know that it didn’t exist?
A: No.
Q: Why did you put it in your letter?
A: To make William acknowledge his son.
Q: Even though the report to your knowledge wasn’t in existence, correct?
A: I didn’t know if there was one.
Q: You must have known?
A: No.
Q: Did you submit DNA to a relevant scientific body for testing, did you?
A: Yes
Q: By 15 July 2002, had you submitted DNA for testing? You hadn’t had you?
A: We’d given some strands of hair to 60 Minutes –
Q: That’s not a relevant authority for the purpose of DNA testing, is it?
(No verbal reply)”
The matter becomes further complicated in the revelation by the witness that the injunction with certain persons connected with the TV show, 60 Minutes, stole from Kamm certain strains of hair for the purposes of submitting same for DNA testing. See page 66 of the transcript.
(Transcript 4th Aug 2003, p. 66 et seq.).
“Q: Whose strands of hair?
A: William’s.
Q: Where did you get those from, was that with his permission?
A: No.
Q: Have you told the police about this?
A: Yes.
Q: Is it in your statement?
A: No.
Q: Have you told the prosecutor about it?
A: I can’t remember.
Q: Can’t remember. That means, doesn’t it, no when you say can’t remember in these circumstances, you’re really saying no I haven’t?
A: I can’t remember.
Q: You got strands of his hair without his knowledge and submitted them for DNA testing, is that the case?
A: They wanted to do the tests.
Q: Who wanted to do the tests, 60 Minutes?
A: Yes.
Q: You allowed and you in fact orchestrated with Mr. [Name Withheld] a media generated prosecution against Mr. Kamm, didn’t you?
A: I don’t understand.
Q: Well let me make it perfectly clear, you had gone to Today Tonight before you went to the police and spoken with Mr. Richardson making allegations against Mr. Kamm in respect of sexual conduct, yes?
A: Yes.
Q: You were told by Mr. Richardson that he needed to interview you in a hurry because Mr. Kamm was about to be arrested?
A: [Name Withheld] and I were in the car at the time we got the phone call.
Q: He told you that he knew the police were going to arrest Mr. Kamm soon?
A: Yes.
Q: He’s part of the media, isn’t he?
A: David Richardson.
Q: His show or the show that he works with and on is part of the media, isn’t it?
A: Yes.”
The inference is available from the cross-examination at this point, the proceedings that [Name Withheld] and [Name Withheld] were playing two media outlets against each other to see who would provide them with the most lucrative offer. From what follows up to page 70 of the Transcript is a series of concessions by the complainant that Kamm did know his hair had been taken, that sixty minutes rejected the body sample because Kamm’s consent had not been forthcoming and thirdly, consistent with Today Tonight scenario, [Name Withheld] was responsible for the brokering of any negotiations and deal then being conducted with Sixty Minutes.
(Transcript 4th Aug 2003, p. 70 et seq.).
“Q: Ms [Name Withheld] is it the case that the DNA report if there be one has never been seen by you?
A: Yes.
Q: I’m sorry?
A: I’ve never seen it.
Q: Did you at any stage in the course of this staging of the letter of 15 July 2002 sign a consent to a medical or a scientific body authorising tests to be conducted upon your DNA sample?
A: No
Q: Nothing like that at all? What about for your infant son [Name Withheld], was any such consent or authority signed on behalf by you as his legal guardian?
A: No.”
At page 71, pts 5–15, the complainant agreed with the proposition that she was prepared to extract what one perceived to be the truth of the matter from Kamm by telling him lies for the purposes of achieving the end they sought. The inferences available from this line of cross-examination that the focus of the letter, exhibit 5, was the desire to obtain the payment of the money and ongoing commitment to make payments from Kamm in respect of the child [Name Withheld]. At pages 72, the witness again agreed that when making her complaint to the police concerning Kamm’s sexual activity, she has stated two dates, which are in conflict.
(Transcript 4th Aug 2003, p. 71 et seq.).
5 “Q: Why did you tell Mr. Kamm in the letter of 15th July the DNA report, which states that William Kamm and [Name Withheld] are the biological parents to [Name Withheld][Name Withheld], why did you tell him such a report existed?
A: Because I wanted him to tell the truth.
10 Q: And you were prepared to lie to achieve that end, is that the case?
(No verbal reply)
Bench: Do you understand that proposition?
A: Yes
Bench: It’s suggested to you that you weren’t truthful about the existence of the DNA report, and are you saying that you were prepared to be untruthful yourself to get him to tell the truth?
A: Yes.
Q: You were prepared to be untruthful?
A: Yes.
Q: The purpose of the letter was to extract money that you say was probably payable by Mr. Kamm to you for the upkeep of your child?
A: Yes.
Q: That was the thrust of it, wasn’t it; that was the real issue for the writing of the letter?
A: What do you mean?
Q: You understood what I meant by the expression the theme?
A: No.
Q: The subject?
A: Yes.
Q: The subject of your letter of 15 July, its principal subject rather, is getting money that you say Mr. Kamm should pay you for the upkeep of your child?
A: Yes.
Q: Correct?
A: Yes.
Q: It wasn’t in relation to any allegation of sexual assault in respect of you that the moneys were to be paid, for you to keep quiet or anything of that sort was it?
A: Could you repeat that?”
(Transcript 4th Aug 2003, p. 72 et seq.).
“Q: You were telling Mr. Kamm pay the money for the upkeep of our child otherwise I’ll go to the police and tell them certain things, correct?
A: Yes.
Q: 7 July 1995, aged 15, correct?
A: Something like that.
Q: That was one of the things like the DNA testing or DNA test that you used to attempt to prise money out of Mr. Kamm, correct?
A: What do you mean?
Q: intercourse commenced on 7th July 1995 when you were 15 years of age, correct?
A: Yes.
Q: Unless he was going to pay you the money you told him in your letter that you would go to the police and reveal the history of the sexual assault committed upon you by him, correct?
A: Yes.
Q: And you said in that letter that the assault, the sexual intercourse commenced on 7 July 1995 when you were 15 years of age, correct?
A: Yes.
Q: When you went to the police in August of 2002 you told them something differently, didn’t you?
A: Yes
Q: You told them that it had commenced a year earlier when you were 14 years of age?
A: Yes.
Q: Both dates can’t be correct as a starting date, can they?
A: The police officer I gave my statement to checked [Name Withheld]’s birthday, and therefore I realised I was a year wrong.”
The prosecution is left with the unsatisfactory circumstance that an allegedly valid series of complaints concerning unlawful sexual intercourse and indecent assault are made by an adult woman many years after the events are said to have taken [place] and prior to her attending the police to make a formal complaint she seeks to utilise both media outlets and a form of blackmail which is a valid and appropriate description for the document marked Exhibit 5 in the committal proceedings to extract from Mr Kamm’s payments of money not by way of compensation for the maintenance payments on an ongoing basis for the child of the relationship, [Name Withheld].
The common observation therefore applies in respect of both the complainants, [Name Withheld] and [Name Withheld] that they sought but to utilise means by which to air their complaints other than police before they made a decision to lodge formal complaint to the authorities. Indeed, the proposition cannot be avoided that, in the case involving [Name Withheld], and to some extent, [Name Withheld], unchallenged and uncomplained of sexual activity took place even on the claim by each of them at a time when they were adults with specific reference to [Name Withheld]. It is clear from pages 85–88 of the 5th August 2003 transcript that further cross-examination be conducted there as to the nature and number of lies told by her, both in written and oral form in an attempt to make good her accusations against Mr Kamm, must have the effect upon a jury of preventing them from reaching a conclusion as to the accused’s guilt beyond a reasonable doubt as the test as the onus requires.
(Transcript 4th Aug 2003, p. 85 et seq.).
“Q: [Name Withheld], why was it not sufficient for you to achieve your purpose for you to tell the truth and nothing but the truth?
A: About the dates?
Q: About the matters that I had raised with you earlier concerning the existence of the DNA report when it did not exist, and your admission that you lied in the letter of 15 July, why did you need to lie? We know why you lied, I’m asking now for your reason, your justification for lying?
A: Because I knew when he was going to deny it.
Q: And that required you to tell lies, did it?
A: No.
(Transcript 4th Aug 2003, p. 86 et seq.).
“Q: It did. Where is that statement now? Where is the statement, [Name Withheld]?
A: This is the only statement; I got the ages wrong in here.
Q: Please now, look at paragraph (b) on page 3, and before we got to it, on the top of that page it is recorded:
10 “If these demands are not met then [Name Withheld]’s solicitor will reveal the evidence which [Name Withheld] has gathered against you.
(b) Being part of that evidence is a full written statement from [Name Withheld].”
Q: I’m asking you, does that statement exist?
A: No.
Q: That’s another lie is it?
A: I didn’t write one.
Q: That’s not what your letter says, is it?
A: No.
Q: It’s another lie, is it?
A: Yes.
Q: Why did you need to tell this lie?
A: I don’t know.
Q: Did [Name Withheld] know that the plot he was involving himself in involved you lying? Mr. Kamm?
A: Yes.”
(Transcript 4th Aug 2003, p. 88 et seq.).
“Q: The evidence wasn’t thoughts and ideas in the head of the solicitor, it was physical items in his possession, that’s what that sentence means, does it not?
A: Yes
Q: That was untrue as well according to your present evidence, correct?
A: Yes
Q: Why was that lie needed to be given or made?
A: To make it – –
Q: The purpose of the letter and the purpose of this last lie and the other lies that you’ve told was to get an admission from Kamm that he was [Name Withheld]’s father?
A: Yes.
Q: To achieve that you needed to hold over his head allegations of a sexual assault or a history of sexual assault, correct?
A: Could you repeat that?
Q: You used in your letter that you now tell us was designed to extract an admission of paternity from Mr. Kamm an allegation of sexual abuse over a period of four years, correct?
A: I had to say that.
Q: And you had to say that a DNA report existed when you knew it didn’t, didn’t you?
(No verbal reply)”
There is a further issue emerging from the evidence of [Name Withheld], which centres around the alleged tape recordings of the private conversation between Kamm, [Name Withheld] and [Name Withheld] in the circumstances of the delivery of the letter marked Exhibit 5 in the committal proceedings. That conversation which clearly is in breach of the listening devices Act, if it is in possession of the police which appears from the evidence of [Name Withheld] to be the case has never been induced nor has the failure to disclose it ever been properly explained. See pages 90 and 91 of the [Name Withheld]’ cross-examination.
(Transcript 4th Aug 2003, p. 90 et seq.).
“Q: The letter I think you’ve agreed with me was delivered on 16 July?
A: Yes
Q: At the Community’s premises?
A: Yes.
Q: When did you tell the police about this letter?
A: A few days after.”
(Transcript 4th Aug 2003, p. 91 et seq.).
“Q: In the taped interview you’ve told Mr. Richardson 1995 aged 15, correct?
A: Yes.
Q: You changed or attempted to amend or correct that by a statement with the police on 30 August 2002?
A: Yes, I corrected it because I forgot which year [Name Withheld]’s birthday was.
Q: What I’m asking you is did you ever make a statement to the police attempting to correct the information contained in your letter of 15 July 2002?
A: I don’t remember.
Q: The tape, who did you hand the tape to? I presume you mean by that an audio tape?
A: Yes.
Q: Were you present when that audio tape was made?
A: No.
Q: Who was present on your understanding?
A: [Name Withheld].
Q: And?
A: And William.
Q: Did [Name Withheld] tell you whether he told William he was there to tape William, that is William – –
A: We didn’t tell William, No.
Q: No, secret?
A: Yes.
Q: A bit like taking the DNA sample?
A: Yes.
Q: And the tape went to the police, did it?
A: Yes.
Q: When?
A: I don’t remember the date.
Q: Did you hand the tape over to the police or did [Name Withheld] or both of you?
A: I think [Name Withheld] did it.
Q: Who took it – –
A: I don’t remember which officer.”
There are certain aspects of the evidence of [Name Withheld] that viewed either individually or in combination would have in this submission a fatal effect upon the success of the prosecution. It is sought to enumerate these areas of evidence as follows: the evidence concerning the dates over which the unlawful conduct took place. It has already been addressed in terms of the alleged first act of sexual intercourse which took place and the inconsistencies which have generated from the single source, [Name Withheld] and the various sources in which these contradictions can be found in addition to those matters the following should be noted:
- Between pages 44 and 53, the complainant sought to explain her contradiction in respect of the act of sexual intercourse, amongst other reasons, a confusion in respect to the birth date of her eldest sister, [Name Withheld].
(Transcript 4th Aug 2003, p. 44 et seq.).
“Q: Whose idea was it?
A: Mine and [Name Withheld]’s
Q: It seeks money from Mr. Kamm doesn’t it?
A: For [Name Withheld], yes.
Q: I didn’t ask you for what purpose at this stage, it seeks money doesn’t it?
A: Yes.
Q: [Name Withheld] the letter contains a threat doesn’t it, that unless Mr. Kamm pays $21,000 a full written statement from [Name Withheld] stating William Kamm sexually touching [Name Withheld] at the age of 13 and sexual intercourse from the age of 15 to the age of 19 years, which started on 7 July 1995, correct?
A: Yes.
Q: Do I understand it correctly unless he was to pay you the $21,000 plus the $100 weekly maintenance you were going to tell the police things about his alleged conduct?
A: Yes.
Q: You were threatening him, pay up or else, correct?
A: Yes.”
(Transcript 4th Aug 2003, p. 45 et seq.).
“Q: You didn’t have to go to the community on that day, the day of the delivery of the letter did you?
A: No.
Q: You went with Mr. [Name Withheld] though on 16 July, the next day for the letter to be given to Mr. Kamm, is that not the case?
A: Yes.
Q: Why did you threaten him, indeed you’ve described them in your letter as demands, “If these demands are not met then [Name Withheld]’s solicitor will reveal the evidence which [Name Withheld] has gathered against you.” Had [Name Withheld] gathered evidence?
A: To my knowledge yes.
Q: Was that evidence given to the police?
A: I don’t know [Name Withheld] got the evidence.
Q: You referred to it in your letter hadn’t you seen it?
A: No.
Q: What was it, what was the evidence that [Name Withheld] had gathered that was with [Name Withheld]’s solicitor or is this a lie?
A: I don’t remember.
Q: What you don’t remember whether you lied or whether you’d seen the evidence?
A: I never saw the evidence.
Q: Why did you then say in your letter the evidence that [Name Withheld] has gathered against you, what where you referring to?
A: I was writing down what [Name Withheld] wanted me to write down.
Q: This is [Name Withheld]’s letter in your handwriting?
A: Yes.”
(Transcript 4th Aug 2003, p. 46 et seq.).
“Q: Well did [Name Withheld] tell you to write that the sexual touching commenced at the age of 13 did he?
A: No I wrote that myself.
Q: Did [Name Withheld] tell you to write that the intercourse took place from the age of 15?
A: No.
Q: According to what you told the court on the last occasion were involved in these proceedings, that’s just not correct, is it?
(No verbal reply)
Q: You told the Prosecutor in answer to her questions last time that these matters before his Worship, intercourse took place the first time when you were 14 years of age. Remember having said that?
A: I didn’t have sexual intercourse with him from the age of 14.
Q: You told the court on the last time that the matter was before the court that you were 14 when the first episode of sexual intercourse took place, did you not?
A: He started touching me at the age of 14.
Q: You know the difference between sexual intercourse and touching don’t you?
A: Yes.
Q: How old were you on 1 July 1994?
A: Fourteen.
Q: How old were you on 7th July 1994?
A: Fourteen.
Q: Didn’t you tell the court on the last occasion that the first act intercourse took place on 7th July 1994?
A: Yes.
Q: Fourteen years of age, correct?
A: Yes.
Q: Not 15, correct?
A: Correct.”
(Transcript 4th Aug 2003, p. 47 et seq.).
“Q: You were 14 when intercourse first took place between yourself and Mr. Kamm?
A: Yes.
Q: But in July last year you wrote in a letter delivered to Mr. Kamm by [Name Withheld] on 16 July that intercourse commenced from the age of 15 years, correct?
A: Correct.
Q: Which is the case [Name Withheld]?
A: I made a mistake in the letter.
Q: Why is the letter a mistake and not the evidence in court a mistake?
A: Because I didn’t have time to think about it when I was writing the letter.”
(Transcript 4th Aug 2003, p. 52 et seq.).
“Q: Well can I suggest to you that you realised that what you were suggesting to him was perhaps criminal itself, a demand, a black-mail?
A: It wasn’t meant in that way.
Q: Not saying that it was meant by, the effect of it was like that though wasn’t it possibly, you pay up or I’m going to the police, correct?
A: Yes.
Q: A demand for money in illegal circumstances, your letter smacks of such a suggestion doesn’t it?
A: It was not intended like that.
Q: I’m sorry?
A: It was not intended like that.
Q: Page 3 of the letter says “William Kamm sexually touching [Name Withheld] at the age of 13 years and sexual intercourse from the age of 15 to the age of 19 years which started on 7 July 1995?
A: I said that to the police but then I worked out that [Name Withheld]’s 21st birthday –
Q: Please, you told Mr. Kamm in accordance with this letter that that’s what you would tell the police unless he paid you the money, correct?
A: Yes.
Q: That was not the truth though according to your evidence in this court. The intercourse started a year earlier, 1994?
A: Yes.”
1.The matter is further complicated from the perspective of the prosecution by a demonstration in the cross-examination of [Name Withheld] that her claim that the incidents concerning the involvement of the complainant with Mr Kamm and her sister, [Name Withheld], were referable to the World Cup Soccer in 1994 – see pages 53 of the Transcript and onwards. At page 56, points 15 to 40, a further mistake conceded by the complainant in respect of her recollection. Sum total being that the complainant concedes yet another mistake exists in the body of evidence which the prosecution brings against Mr Kamm, this mistake being of a critical nature by reason of its initial alleged significance, i.e., an event in the complainant’s life enabling her to fix with certainty the dates relevant to the acts complained of.
(Transcript 4th Aug 2003, p. 53 et seq.).
“Q: Why do you discount lying as a possible explanation for the discrepancy?
A: Because I got confused with my sister’s birthday.
Q: [Name Withheld] you heard me ask you questions previously about the evidence you gave where you told the court on the last occasion that you and [Name Withheld], or rather you went with [Name Withheld] to the Sovereign Inn Hotel around the time of the World Cup of soccer in 1994. Correct?
A: Yes.
Q: That according to your evidence in April of this year occurred after 7th July 1994 didn’t it?
A: To my memory yes.
Q: Well there’s nothing else you can go on is there?
A: I just remembered it was during the soccer World Cup.
Q: And in your police statement, the first of your police statements in August last year you told the police that you had gone to the hotel with [Name Withheld], that is the first time you went to the Sovereign Inn Hotel with [Name Withheld], around the time of the World Cup of soccer?
A: Yes.
Q: And again after 7 July allegation of sexual intercourse with William Kamm?
A: Yes.”
1.The prosecution very fairly at page 62 accepted what was put in cross-examination to the complainant in respect of the date of commencement and conclusion of the World Cup Soccer; see page 62, points 10 to 15.
2.The issue emerging in cross-examination between pages 93 to 101 of [Name Withheld] as the presence and involvement of the person, [Name Withheld].
(Transcript 4th Aug 2003, p. 95 et seq.).
“Q: Seventeen or eighteen. What do you say was the purpose or the reason for [Name Withheld] taking you to the Sovereign Inn Hotel? Do you recall?
A: No, I don’t know.
Q: No idea?
A: I think William asked her to take me.
Q: See, on your present evidence, if this occurred in the latter half of 1997, the relationship between yourself and Mr. Kamm had been subsisting, that is going on from about 1994, possibly ’95, correct?
(No verbal reply)
Q: From the age of fourteen or fifteen?
A: From the age of fourteen.”
- There is no corroboration in respect of the claims by the complainant as to her attendance at the Sovereign Hotel, either be reference to documentary material, eyewitness accounts or persons said to have been in her presence at the time relevant to the allegations.
- The location of significance emerging from the evidence of the complainant is the Corrimal flat. The commencement of that examination appears at page 103, whilst the complainant does not appear to know the exact address of the premises or does it seem the police sought to take her to a location that she described to them as the general vicinity to which the premises could be located. At page 104 of the cross-examination, a further inconsistency is demonstrated in the evidence of the complainant as to the age at which she was when she went with Mr Kamm to the flat at Corrimal. See point 10, page 104. Her answer, 17 or 18–19, the relevant year being 1997. See points 15 and 20 of page 104. At point 25 of page 104, she has taken to paragraph 33 of her statement, which contradicts the previous evidence by its references to year 9 and the calendar year 1996. At the close of the evidence relevant to the 4th August 2003, the witness was given the opportunity to explain and clarify her reference to inconsistent dates nominated by her being the years 1996 and 1997 describing the same period relevant to the Corrimal Flat, however, no relevant satisfactory explanation or clarification emerged. The commencement of proceedings on 5 August 2003 at page 110, the witness was taken at point 40 to 55 to a serious inconsistency in her evidence concerning her recollection of the number of occasions that she had claimed Mr Kamm had taken her and [Name Withheld] to the flat, her sworn evidence being twice. Statement to the police being 20 – at page 111 of the proceedings of the 5th August. The witnesses were asked to agree with what appeared in her statement at paragraph 31. In 1995, William had a flat in Corrimal near the train station. Between pages 111 and 119, extensive cross-examination took place concerning the knowledge of the witness as to the date of acquisition of the Corrimal Flat by Mr Kamm and more particularly, her knowledge of it. The dates on which she visited it and the persons in whose company she was when such visits occurred, she was given ample opportunity to read her statement, to have her statement read to her and to understand the questions being asked of her, it is clear from her evidence that reading paragraphs 31 and onwards of her statement that she told the police that episodes of sexual intercourse took place in the flat in the year 1995. She confirms as through to 119 against this background material has now been intended which establishes that the defendant was not the owner in any relevant sense of these premises until the year 1996 as much is clear from the tender of the development plan contracts for sale and other relevant documents.
(Transcript 5th Aug 2003, p.111 et seq.).
“Q: Have you ever told anyone connected with this investigation, of this prosecution, that in a particular year Mr. Kamm had a flat at Corrimal, that is the flat in question, do you understand my question?
A: I said that on my statement, ’96.
Q: Don’t worry about your statement for the moment, have you ever told anyone when Mr. Kamm had the flat in Corrimal, apart from 1996, which seems to be your concern at the moment?
Bench: Well paragraph 31 has another date.
Stanton: I’m coming, do you want me to take her to that your Worship, I want to take her to that.
Q: [Name Withheld] let me suggest to you that as his Worship’s indicating, in paragraph 31 of your statement the following is recorded: “In 1995 William had a flat in Corrimal near the train station.”
Q: Did you tell that to the police?
A: Yes.
Q: You remembered in August of last year when you told the police at paragraph 31, “In 1995 William had a flat in Corrimal near the train station”?
A: Yes.
Q: That means doesn’t it in that year he had the flat?
A: Yes but I, I, he never told me when he purchased it.
Q: Please, did he tell you when if ever he purchased it?
A: No.
Q: How did you tell the police that in 1995, William had a flat in Corrimal?
A: That’s what, when he first told me about it.”
(Transcript 5th Aug 2003, p. 112 et seq.).
“Q: Have you ever told the police about conversations with Kamm in which he told you that he wanted you to go to this flat, has that ever been part of your version given to the police, it’s not in your statement let me suggest too you, it’s not in your statement and if I’m putting to you something’s wrong, Madam Crown will object, it’s not in your statement and you know it’s not in your statement, don’t you?
A: Yes.
Q: [Name Withheld], can I suggest to you that Mr. Kamm on record is recorded as purchasing the flat in Corrimal in 1996, are you in a position to dispute that?
A: To my memory he had it in ’95.
Q: Did you visit it in 1995, for any purpose?
A: I can’t remember.
Q: I want to suggest to you you’ve never said in your evidence-in-chief that he had the flat in ’95? I’m happy to have the witness read it or read it to her.
Bench: I think it should be read to her.
Q: [Name Withheld], will you listen to these questions and answers, which appear from the transcript on the first day of this committal when you gave evidence in April of this year?
A: Yes.
Q: For the record, I’m reading from page 23, at about point 30, 31, questions asked by Madam Crown:
“Q: Do you recall in 1996 when you did your TAFE certificate that you went with another lady called –
A: [Name Withheld].”
(Transcript 5th Aug 2003, p. 113 et seq.).
“Q: In August of last year when you made a statement to the police, you told them certain things that you claim were factual, accurate in respect of your knowledge of the flat, correct?
A: Yes
Q: On one of those things you told the police is that in 1995 Kamm had a flat at Corrimal near the train station?
A: Yes.”
(Transcript 5th Aug 2003, p. 114 et seq.).
“Q: The flat I want to put to you was not bought by him until June 1996, you can’t dispute that can you, the flat was bought in 1996 with Mr. Kamm as the registered proprietor, are you in a position to dispute that, you’re not are you?
A: No.”
(Transcript 5th Aug 2003, p. 115 et seq.).
“Q: Perhaps if I withdraw the question and put it to you in this fashion. Those three paragraphs read together or at least 31, 32 and top of 33, create the impression that you visited the flat and had intercourse with Mr. Kamm at that flat in 1995, do you agree with that?
A: Yes.”
(Transcript 5th Aug 2003, p. 116 et seq.).
“Q: That can’t be right though according to your present evidence, can it?
A: From what I remember, yes.
Q: What does that mean?
(No verbal reply)
Q: You have previously told the Court have you not that no intercourse in the flat until 1996, correct?
(No verbal reply)
Q: Isn’t that your previous evidence [Name Withheld]?
A: Yes.
Q: I’m sorry?
A: Yes.
Bench: Now the evidence that you are being told is inconsistent with your statement that indicated a recollection of intercourse at the flat in 1995, as it was put to you on 1 April when you were giving evidence.”
(Transcript 5th Aug 2003, p. 117 et seq.).
“Q: Do you recall in 1996 when you did your TAFE certificate you went with another lady called – and that’s when you interjected –
A: [Name Withheld]”.
Q: So you agreed with the proposition that was put to you that the Corrimal flat incidents occurred in 1996. That’s what’s being put to you, you said “1996”, then your statement said “1995” and you are asked about that inconsistency?
Q: But the prosecutor gave you every opportunity didn’t she to think carefully about the evidence that you were giving?
OBJECTION. WITHDRAWN
Q: You interjected when the evidence was being sought from you and nominated [Name Withheld], didn’t you, let me remind you:
“Q: Do you recall in 1996 when you did your TAFE certificate that you went with another lady called –
A: [Name Withheld]”.
(Transcript 5th Aug 2003, p. 119 et seq.).
“Q: Was [Name Withheld] even at the community in 1995?
(No verbal reply)
Q: Was [Name Withheld] a member of the community in 1995?
A: I don’t remember.
Q: Was your sister [Name Withheld]?
A: Yes.
Q: I’m putting to you and as I’ve put to you previously, the flat was not bought by Mr. Kamm until June of ’96, do you still say that there were episodes of intercourse in 1995 at that flat?
A: From what I remember, yes.
Q: I’m Sorry?
A: From what I remember, yes.
Q: You can’t nominate, notwithstanding that memory, one month in that year in which any episode of intercourse took place?
A: I don’t remember.
Q: You see paragraph 33 of your statement, having described in 32 your trip to Queensland your return to New South Wales that means doesn’t it you’re still in 1995 according to your memory given to the police?
A: Yes.
Q: Paragraph 33 commences: “William continued to have sexual intercourse with me, mainly at the flat”.
Q: Is that what you told police?
A: Yes.”
- The prosecution tendered a document – Exhibit 6 – re: the enrolment records of the witness at the Bomaderry TAFE at page 121 and over the page at page 122. The witness concedes at that point a critical mistake made by her in evidence to the court which makes mistakes if one reads the remainder of the cross examination of the 5 August 2003 at page 160 to 161. There is clearly within the context of that cross-examination concession as to the fact that the complainant set out with [Name Withheld] to set up Kamm. Further, at pages 161 to 162, the concession is made that no detailing of complaints emerged until [Name Withheld] entered into the life of the complainant and that the only other persons to whom she said to have complained are mother and sister [Name Withheld] and she cannot remember the words used in the communication of those complaints.
(Transcript 5th Aug 2003, p. 160 et seq.).
“Q: And why did you earlier suggest that there were two admissions and that one of them went to an admission of raping you when you were fourteen? Why did you say that?
A: Because [Name Withheld] called him a paedophile and William didn’t say anything.
Q: Called him a paedophile on the tape and he made no response is that what you tell us? Is that what you tell us is recorded on the tape, correct or not?
A: Yes
Q: This is the tape, which you understand Mr. Kamm didn’t even know was being recorded?
A: Yes.
Q: Like his hair sampling being taken?
A: Yes
Q: Trying to set him up, you and Mr. [Name Withheld] is that the case?
A: So he doesn’t rape anyone else.”
(Transcript 5th Aug 2003, p. 161 et seq.).
“Q: Trying to set him up regardless of the purpose, the intention was to set him up wasn’t it?
A: Yes.
Q: You had a relationship with this man that went on for years on any view didn’t you?
OBJECTION. WITHDRAWN. REPHRASED.
Q: You had a relationship with Mr. Kamm that went on for a number of years did you not?
A: Because I was forced.”
- At pages 162, between points 5 to 25, the complainant makes a series of admissions that goes specifically and we would submit, falsely, to the issue of her status as a reliable and credible witness and when cumulatively the inescapable effect is that they create a detriment to the prosecution case, which cannot be overcome and must result in the acquittal of the accused. Read as a totality, the evidence, [Name Withheld] is inherently inconsistent, contradictory, lacks weight, credit and veracity and consistency.
(Transcript 5th Aug 2003, p. 162 et seq.).
“Q: You and [Name Withheld] set out to set up Mr. Kamm to extract money from him for the maintenance payments and a lump sum of money in respect of your child’s welfare, is that the long and the short of it?
A: Yes.
Q: You were dishonest and deceptive in company and in agreement with [Name Withheld] to achieve that end were you not?
A: Yes.
Q: Because you wanted money from Mr. Kamm?
A: No, I didn’t care about the money.
Q: That was the bottom line. The bottom line of your letter of 15 July 2002 was $21,000 in a cash cheque and $100 a week and your silence. That’s what you demanded of him, correct?
A: Yes.
Q: You were happy to use lies and deception both of Mr. Kamm and with others to achieve that end, correct?
A: Yes
Q: You didn’t when you went to police on 2 August take a copy of the letter of demand of 15 July did you?
(No verbal reply)”
Submission Four: Investigation as to the witness [Name Withheld].
It is submitted in simple terms that the enquiries conducted by Officer [Name Withheld] and other police, since the unrest and charges of Mr Kamm, including the execution of the search warrant at the premises on 8th August, has afforded ample opportunity for the police to seek aspects of corroboration of the allegations brought against Mr Kamm and indeed, to upturn evidence exculpatory. To date nothing of a constructive nature has been achieved in the investigation of the prosecution, enabling the court to conclude other than the present case that the Prosecution in respect of each of the complainants relied upon lacks significant if any corroboration of the allegations as made.
The two most telling matters revealing a degree of unfavourable treatment by the police of Mr Kamm’s interest in the matter is the withholding from the Brief of Evidence of Exhibit 5 and the failure to produce prior the Prosecution making available by way of disclosure on day one (1) of the proceedings the tapes and interviews conducted by today-tonight between the complainants, which clearly constituted representations, prior statements and material which the defendant was entitled to be made aware of and indeed, to be served with pursuant to the obligation of the Prosecution under the rules of disclosure. The fairness of the prosecutor in this particular case in making such material available, i.e. the tapes of the interviews then the defendant would have [been] at a loss in respect of a body of material that is both fundamental and critical to his defence. The next aspect upon which the applicant provides in this No Bill application is the line of authorities in recent time in New South Wales regarding the issue of contamination of evidence of sexual assault. In the particular case under consideration, one could find no clearer example of both actual and potential contamination of evidence in respect of each of the alleged victims. In summary, the contamination falls into the following categories:
1.The alleged victim [Name Withheld] gives clear evidence of [Name Withheld] being a motivating force and factor in her coming forward and making complaints against the accused.
2.[Name Withheld] was instrumental in bringing together the alleged victims, [Name Withheld] and [Name Withheld], with members of the media, particularly David Richardson, and to discussing their evidence in meetings prior to the conduct of the programs for broadcasting copies of which the DPP has and which form part of the evidence in the committal proceedings.
3.It is clear that there was ample opportunity and was indeed actual discussion between these persons said to be victims – potential witnesses and members of the media in discussions both before, during and after police investigations were conducted and charges were proffered against Mr Kamm that raises in the most direct and dangerous fashion imaginable the contamination of the evidence to be placed before the Court. At no relevant juncture of the investigation could it be said that the police carried their investigations free of the influence of potentially contaminating factors.
Since the date of the last mention of Mr Kamm’s matter, the Wollongong District Court, two significant features have arisen, both of which are critical to the determination of this “No Bill” application.
The first, involving the publication of an article in the Australian winter 2004 edition of the magazine commonly known as CQ, a copy of that article is enclosed herewith. I have taken the opportunity of highlighting those portions of the article which we contend are clearly matters that raise a severe prejudice to Mr Kamm in the conduct of his defence. Apart from the issue of this article and its prejudicial effect being an important factor in the favourable determination of this application, we would ask that you give consideration to the referral of this matter to the Attorney General’s Department for consideration for contempt by way of sub judice, bearing in mind its proximity to Mr Kamm’s coming trial. In addition to this development, there is material again, a copy of which is enclosed, herewith appearing from the website said to be conducted by Mr Peter Brown, who, coincidentally, is mentioned in the CQ article, referred to the proceedings of Detective [Name Withheld]. It is significant to note that the Police Officer both denied knowledge of [Name Withheld] and any knowledge of his claim that he had been authorised by police to seek information in respect of Mr Kamm’s activities involving other persons said to be victims of sexual assault.
It is clear from the publicity generated both by the CQ article and [Name Withheld]’s website, that the prospect of Mr Kamm receiving a fair trial is remote and fanciful and we would submit that these factors taken in account in combination with the material identified above provides strong basis upon the determination of this application for No Bill being made in favour of Kamm.
Matters have emerged since the date of the preparation of the first application, which fortifies the need to have these proceedings brought to a halt. They are as follows:
- Mr Richardson and Channel 7 have lost contractual documents relevant to the deal struck between them and this complainant [Name Withheld].
- Mr Richardson has either lost or misplaced or never brought into existence any notes of his involvement with the complainant and [Name Withheld] and any history given any party making allegations against Mr Kamm of sexual misconduct.
Developments since the committal and the application for No Bill.
Critical developments emerged at the trial of the accursed referred to above before His Honour Judge Solomon, which, in our respectful submission, even absent material previously relied upon will justify the decision to file in relation to those matters. A complete reading of the evidence of both [Name Withheld] and [Name Withheld] illustrates that both of these witnesses are on their own admissions – witnesses capable of lying and fabricating material that they ultimately represent as credible and reliable evidence. The extraordinary circumstance has been reached where both the crown prosecutor and her learned instructing solicitor had on ethical grounds discontinued appearing on behalf of the Director by reasons of serious allegations levelled against them which, if they were true amount to criminal misconduct, not only against the lawyers but also police attached to the investigation. It is asserted and repeated that we make no allegations of impropriety in support of what [Name Withheld] and [Name Withheld] say, but the inherent risk of miscarriage of justice when a prosecution is built upon the evidence of witnesses of such inherent unreliability and untruthfulness, in offences of criminal prosecutions in a fashion that demands that this prosecution be brought to an end in a fashion which this representation seeks.
The submission on behalf of the accused in respect of the termination of these proceedings pursuant to the submission requires the careful and complete reading of the Basher enquiry before His Honour Judge Solomon to understand the full input and manner in which [Name Withheld] and [Name Withheld] have colluded, concocted and exposed false evidence in thinking process determines that their cause in having Kamm prosecuted successfully will be achieved. We await your determination of this application. It is respectfully requested therefore that, upon careful consideration of the matters set out above that the Director of Public Prosecutions will file No Bill in respect of the accused.