The key police interview of a sexual assault complainant, who has since died, has been ruled inadmissible in court with a judge saying it appears to be because of "a failure of police training" in a "crucially important area".
An ACT Supreme Court trial starting on November 21 has heard that a man allegedly committed historical indecent acts on his adopted sister in 1971-75.
She then had major depressive disorder and received psychiatric treatment before she died by suicide earlier this year.
The man, who is not named for legal reasons, is also accused of committing similar acts on his niece in 1979-83.
He pleaded not guilty to two counts of assaulting a child and about the same time committed an indecent act on the child.
He is facing a judge alone trial, a rarity for sexual assault cases in the past decade in the territory as such matters are ordinarily tried by juries in the jurisdiction.
The prosecution case is that the accused, in his mid 70s, touched the complainants' vaginas and genital areas a number of times when they stayed at his Canberra premises during school holidays.
The case includes tendency evidence involving uncharged acts by the accused - that he allegedly touched his sister in three incidents while they were in NSW before the charge period that is the subject of the trial.
The court heard that complainant initially made a statement to NSW Police before her case was transferred to the ACT.
Played during trial was her evidence-in-chief interview with the territory's police in July 2020.
She said the alleged offending "went on most times when I visited" and her brother was "always too familiar and too sexually inappropriate with me".
"I was adopted ... I suppose for many years, I thought the reason why it had happened to me was because I wasn't the real deal," she said.
Last week, the senior officer who conducted the evidence-in-chief interview with that complainant was cross examined about the standard practice of allowing sexual assault complainants to refer to "a significant volume of documents".
The officer made a number of damaging admissions, including that such a practice "may be fraught with significant problems", including the potential to contaminate a complainant's "free narrative".
The court heard that such an interview should have been conducted if it were done in court, which is without documents or other help, unless applied for and granted.
The officer said she adopted it from more experienced colleagues and could not recall if she was told during her formal training in 2009 about allowing documents.
The officer said she made copies of the various documents, except for the complainant's timeline of events, which were then sent to the Director of Public Prosecutions.
She also agreed it was a possibility that her duty failures "have hamstrung the accused" in his defence.
On Tuesday, Justice Chrissa Loukas-Karlsson ruled that the interview was inadmissible based on the Evidence Act.
Specifically whether the complainant's evidence was "was made in circumstances that make it highly probable that the representation is reliable" because she is no longer available to give further evidence. Whether the hearsay rule applied was also considered.
In quoting a Federal Court case, Justice Loukas-Karlsson said the requirement "that it'd be highly probable that a representation be reliable in order to be admissible is an onerous one".
"It is one thing to say that a statement is probable, it is quite another to say that it is highly probable. On the facts of this case, that onerous standard is not met," she said.
The judge said she considered in particular what occurred in the evidence-in-chief interview in relation to the additional material that had not been made available to the court.
She said the other "pertinent piece of evidence" was the senior officer's evidence about the interview.
"Let me make it clear that blame should not be sheeted home to the individual police officer," Justice Loukas-Karlsson said.
"The failure is a failure of the system. It is it appears on the evidence a failure of police training in this crucially important area."
The judge said her short statement about the ruling should not be taken as her full judgment, which will be published at a later time.
The ruling came after the accused applied to exclude the admissibility of the interview and the complainant's statement to NSW Police before the case was transferred to the ACT.
Justice Loukas-Karlsson said "no cause" had been established to revisit the admissibility of that police statement.
An ACT Policing spokesperson said they were "aware of Justice Loukas-Karlsson's rulings in this case and that the reasons for the rulings have been reserved".
"Until the detailed judgment is published, we can't make any further comment," the spokesperson said.
The legal parties have until Friday to file their closing written submissions before Justice Loukas-Karlsson decides on the verdicts.
- Support is available for those who may be distressed. Phone Lifeline 13 11 14; Kids Helpline 1800 551 800; beyondblue 1300 224 636; 1800-RESPECT 1800 737 732.
