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LOCAL COURT
DOWNING CENTRE LOCAL COURT
MAGISTRATE R CLISDELL
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TUESDAY, 26 AUGUST 2008
Alison Louise PELS v Jan HAMILTON-DYERS
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PERSON IN NEED OF PROTECTION: ALISON LOUISE PELS
COMPLAINT
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Apprehended Personal Violence Order Application
Mr Longville for the Applicant
Mr Koops for the Defendant
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HIS HONOUR: Very well, I'll consider the submissions. I'll deliver a decision
at 2 or shortly thereafter. The court's adjourned until then.
SHORT ADJOURNMENT
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HIS HONOUR: Ms Pels seeks an order for protection from alleged
harassment and intimidation by Jan Hamilton Dyers. She relies primarily on an
incident at West Pymble Community Hall on 17 October last year, together
with some fears that arise as a result of her involvement in a group known as
Kenja.
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Ms Pels’ family have had a long involvement in Kenja, which was co-founded
by the late Ken Dyers, and the defendant, Jan Hamilton-Dyers. Mr Dyers had
been charged with and acquitted of a number of allegations of sexual assault
against children during the 1990s.
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Following a conviction on one charge, he successfully appealed to the
High Court in 2002 and a new trial was ordered. As he had effectively served
a sentence arising from the conviction, the DPP elected not to proceed to a
new trial.
40
In October 2005 Mr Dyers was once again facing allegations of sexual assault
raised by some children, whose parents had been members of Kenja.
Mr Dyers was granted bail and by March 2007, the matters had not been
determined by a court.
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In March 2007 Alison Pels raised allegations of sexual assault against
Mr Ken Dyers. A good deal of evidence was heard about the events of
March 2007 and although, I initially attempted to limit the parties to the events
of October 2007 it became evident that the incident on 17 October 2007 could
not be viewed in isolation.
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The Pels family had actively supported Mr Dyers in his court battles through
the 1990s. Mr Michael Pels and his wife made cash contributions to the
Dyers Fighting Fund of over $300,000, perhaps as much as $500,000.
Mr Pels was a strong supporter of Mr Dyers.
But after Alison's allegations he had a change of heart and thenceforth
supported his daughter. Alison's mother, Marti Pels, did not support her
daughter and remained faithful and loyal to Ken Dyers and
Jan Hamilton-Dyers. There was a fracturing of the Pels' family, with Michael
and the children, Conrad, Alison and Mathew leaving Kenja, and Marti Pels
remaining with Kenja. It became clear to me during this hearing, that either
you would support Ken Dyers and Jan Hamilton-Dyers, or you leave Kenja.
On that point, I accept the evidence of Alison Pels and Michael Pels.
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The allegations by Alison against Mr Dyers were made formally to police in
late April 2007. Mr Dyers was notified on or about 24 April 2007. There was
immediate action from Mr Dyers and his supporters with affidavits and
statutory declarations in support of Mr Dyers, and attacking Alison Pels and
Michael Pels, being produced within days of the formal complaint.
They included a 10 page statutory declaration by Marti Pels in support
of Mr Dyers.
25
In July 2007 the police wrote to Mr Dyers' solicitor asking him to arrange for his
client to be interviewed about the allegations. Mr Dyers chose at that time to
take his life.
30
Following his funeral, Ms Hamilton-Dyers commenced, with the help of her
supporters, to arrange to publicly rehabilitate the late Mr Dyers' reputation.
These have been described as a series of lectures. Although it seems to me
from a reading of the transcript, exhibit R, that they were more a performance
than a lecture.
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In many ways the evidence in this case has been, as described by both
Mr Longville and Mr Koops as "bizarre". Even the incident of 17 October is
bizarre. Ms Pels gave evidence concerning the events of 17 October.
In summary, she says that she was contacted by email by a Brandon Garrett,
and/or a James Chan. Exhibit 7 was a MSN with Mr Garrett, conversations
which can only be described as bizarre, particularly as Ms Pels says that she
did not know who this person was.
Ms Pels alleges that Garrett was, in fact, Jan Hamilton-Dyers. She was then
contacted and asked to attend an audition for Chekhov's Three Sisters at the
West Pymble Community Hall. She agreed to attend.
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In respect of the dispute about her knowledge of times and the place of that
rehearsal, on a review of the exhibits, I accept the submission of Mr Longville,
that in fact the times were suggested initially by Mr Chan, and that there is
nothing inconsistent in exhibit 7, as the time of 11.21 pm comes after
11.28 am.
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She asked her father to drive her to the audition and he agreed to do so.
She goes inside and she met Nicole Saunders. She then sees a person who
she believes to be Jan Hamilton-Dyers dressed up as a man. She gave
evidence she also recognised Amanda Hamilton, and believes later with the
benefit of hindsight, that another person she saw there was Karli Stevenson.
All are in costume. All using fake accents. She said she was terrified and then
left the hall and meets with her father outside. He comes in and evidence is
given that Jan Hamilton-Dyers has left the hall.
Mr Pels gave evidence that he recognised Amanda Hamilton. They then go
back to Mr Pels' car. He calls the police at Lane Cove and reports the incident.
Nicole Saunders runs to them when she cannot start her car. Now they take
her back to her car and wait until she manages to get it started. They then
exchange contact details. Then Alison and Michael go to Gordon
Police Station and make a report.
That version is substantially corroborated by both Michael Pels and
Nicole Saunders. In respect of the evidence of Nicole Saunders, it seems to
me that she is an independent witness. She describes being contacted by
someone who sounded like she had an American accent, and she was also
asked if any of her friends wanted to come along and audition, could she
please bring them along as well.
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Now when she arrived she saw people standing and congregating out the front
of the opening of the hall. There were three people.
30
"They looked towards me as I was walking towards the hall. There were
two women and one man. The two women were dressed as men. All three of
them were wearing wigs and the man had natural facial hair and the women
had glued on fake moustaches and goatee beards."
She was asked if she could recall the colour of the clothing. Her answer was:
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"It was very nondescript. Sort of navy blue, big puffy jackets, and all
black, and like dark coloured baggy pants."
She was asked to describe the stature of the women.
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"The younger woman would have been in her early 20s. She was slightly taller
than me, so I thought she was 165 to 170 centimetres tall and slightly slimmer
than I am."
As she approached that person, she said she called out and said:
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""Are you Nicole?" and I said "Yes." And I said "Are you Sharon?"
And I'm fairly certain she said, "No, I'm Sarah, but then later on in
the evening she was referring to herself as Brandon, and everyone
else was referring to themselves as Brandon and they were
referring to her as a he."
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The second woman she described. She said:
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"She was much older and shorter. I would think she was about 50s
to 60s and about 10 centimetres shorter than I am. A slightly
chunkier build, but then again, the clothing that she was wearing
was covering up shapes and curves."
Then she described the wig and the beard. She said: "That person introduced
herself as Paul from New York in an American accent." Then she said, "They
were all speaking in accents with wigs." She said, "The younger lady she was
asked, "What accent did she speak in?" And the answer was, "She was.
It was an American accent, but she kept dropping it and picking it up. It wasn't
a smooth accent. The older lady had a more fluent, smooth accent."
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Inside the hall she was introduced to someone called Moshie, who rarely
spoke, but when she did she had a bit of a Russian accent. And again, asked
about her clothing, "I just remember lots of dark colours, like navies and blacks
and brown."
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A question:
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"Q. Apart from hats or wigs or beards or fake facial hair, were any
of these people wearing anything else on their face to the best of
your recollection?"
A. There had been glasses at the beginning, but I think once we
were inside, the sunglasses had come off. It was quite dark.
Q. Did you detect anything about this Russian accent?
A. Oh, it was fake."
30
She then gave evidence about the auditions with Brad and Susanne who were
the earlier people. In respect of the second person, Susanne, who she
described as being 'late', "They read for how long?" was the question. "I think
we read for a minute or two", was the answer.
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She described being up on stage. "When she was asked:
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"Q. Did you notice anything at that particular when you stepped
down from the stage?"
A. When I stepped down, I could see clearly the stage was lit, so it
was hard to see the director's table, Brandon has returned."
As Brandon was escorting Susanne out, she then describes Paul calling
Brandon back.
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"Q. What did she say at that time, do you recall?
A. Yes, she said 'I don't want you to go. I want you to be here for
the next one.
Q. Was anything said to Moshie in similar terms, do you recall?
A. After Susanne had left they said, 'The next one, this is the one.
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She's the one.'
Q. Who said that?
A. Paul.
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Q. To whom particularly?
A. Moshie, that particular statement was to Moshie.
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Q. At any time was there any discussion with you as to what further
role you would play at this process?
A. They said that for the next one, that I would do the reading as
I had with the previous two, but I wouldn't be needed to hang
around for the whole process, like I had done with Susanne's.
Q. Who said that to you?
A. Paul."
Then a few questions further on:
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"Q. What was the response then when somebody else arrived?
A. I think they heard movement outside first, and suddenly, it
became very excited in the hall. Paul and Brandon were, 'She's
here. She's here.' and quite excited, and moving around all of a
sudden, and quickly took their seats at the table. And Paul, when
that happened, Paul handed me the scripts, and said, 'Here you
give them to her.'
Q. Did you respond to that in any way when Paul handed you the
scripts?
A. Yes, because I already had my script that I was reading from,
and he handed me the one for the next auditionee and I said, 'But
don't you want to give it to her? Don't you want to speak to her?'
And she said, 'No. You give it to her. This is your job.'
Q. Did Paul instruct you what you were to do at that point?
A. Yes, I was to give her the script to take her up on stage and
begin the audition.
Q. Was there any difference in that activity compared to the
previous person's with whom you read?
A. Yes. They had spent a lot of time with Brad before I had arrived,
and had obviously taken him through the process. When Susanne
arrived Paul made all the introductions, introduced herself, Brandon
and Moshie to Susanne. Introduced myself to Susanne. Explained
to Susanne what my role was there. They made Susanne a cup of
tea, got her food, had her fill out the audition. There was like an
audition application form, and they were quite chatty with her, and
making her feel comfortable, and with the next one, they sort of
handed it all over to me. They all sat down and expected,
I interpreted that they expected me to make the introductions and
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take the next one up on the stage."
Then further on there was a question,
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"Q. How did that sort of conduct compare, that is Paul's conduct to
an auditionee to the previous person's Brandon and Susanne?
A. It was completely different, for the others, Paul had been
standing up and speaking to them face to face, looking them in the
eye, and talking to them, getting them food, making them feel
comfortable. Whereas, when Alison walked in, the physical
demeanour changed and the tone of voice. It was sort of like right
on the stage."
She then gives evidence about Alison's reaction when she came inside. She
was asked, "What then happened?" "Alison turned toward me and she started
walking towards me and she said 'I'm sorry. I can't go through with this
audition.' and then when she got - because I'd moved away towards the stage,
and when she got up quite close to me, she stopped me and she said,
"Can you tell me the name of that woman? Is that Jan? Is that Jan Hamilton?"
and I said to her, "Look, I'm really sorry. They've not given me their real
names. I only know them by the men's names that they have given me. I don't
know who they really are."
She was then asked, "That name, Jan Hamilton. Did that mean anything to
you at that time?" "No, nothing at all."
"Q. What then happened?
A. Alison apologised to me again, and she said, 'I'm sorry. I can't
go through with this.' She was quite close to me, so she handed me
the script back to me, and we were near a side exit, and she walked
straight out that exit and she was quite agitated when she went out.
Q. At this time had your mood changed in any way?
A. When I saw how distressed she was, I was quite concerned for
her, and she'd walked out the side door so I - I followed her out the
door to make sure that she was okay, because I knew that
something was not quite right".
There was then some brief evidence about which door she went out and then
the question:
"Q. What did you then observe about her, your observations of
what she did or said?
A. She was holding onto the railing quite tightly and she was
shaking and she was calling out to a car, which I learned was her
father in the car. She was calling out to him and as she was calling
out she wasn’t only raising her voice, the pitch was getting higher,
as young women do when under stress. She was quite agitated
and she was calling out, saying, 'It's Jan, it's Jan, Jan's here. She's
wearing a wig and a moustache, but Jan's here and Amanda's here
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too.'"
She then gave evidence about what happened when Mr Pels arrived, and
there was the question:
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"Q. Then what happened?
A. We went to the table, I put the play scripts back down. Alison
was saying to the woman dressed as Moshie, 'I know it's you,
Amanda, where's Jan? Jan was here. Why are you doing this?
Can you take your hat off, please, Amanda?' And the woman she
was referring to, Moshie, was saying, 'Oh, no, we're here for a play.
Are you going to audition? Go up on the stage and audition now.
And Alison said, 'No, I know it's you. Can you take your hat off?'
And she refused to take the hat off, and then Michael said, 'This is
ridiculous, this has to stop. You’ve got to stop terrorising my
daughter, this has to stop now.'"
She then gave evidence about leaving the hall, and there was the evidence
about the fact that her car would not start and she chased down and stopped
Mr Pels. He took her back to her car and then there was an exchange of
information and she left. She was then asked about what she did when she
got home. "I googled, "Kenja Communications", to see. I wanted to know,
I wanted clarification. The whole evening had been a little bit distressing for
me, so I was trying to get some clarification of what I'd heard. I couldn’t find
anything under, "Kenja Communications", so I googled, "Cult leader's suicide",
and, "Ken Dyers", and "Kenja Communications" popped up."
"Q. You read certain parts of web pages or websites. Is that right?
A. I did. I read a website and read an article - a newspaper article
on why that made reference to the Child Protection and Sex Crimes
Squad.
Q. Did you do anything in response to reading those things?
A. The next day I called the Child Protection and Sex Crimes
Squad and mentioned Ken Dyers' case, and said that there had
been an incident the previous evening and I just wanted to report it,
clarify my involvement with it, that I was just a random ring-in who
happened to witness this incident."
She was then asked, a few questions down:
"Q. Did anybody ask you to make that contact with the New South
Wales Police?
A. No.
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Q. Did you do it of your own volition?
A. I did.
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Q. Was there any plan to that?
A. No.
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Q. You spoke with whom eventually?
A. When I mentioned the case they put me through to an officer
called Eugene. I don’t remember his title but Eugene said that he
worked with the officer who had handled some of the investigations
into Ken Dyers, and I very briefly explained to Eugene what I had
seen and gave him my details, and then late that afternoon
John Southgate called me back."
The reason that I went through that bit of evidence was that there was
a suggestion, as I understood it, from Mr Koops that somehow the involvement
with Mr Southgate and Ms Saunders was as a result of something that come
from Alison Pels. It seems to me, clear from that piece of evidence, that that is
not the case and the contact between Mr Southgate and Ms Saunders was
entirely as a result of Ms Saunders' efforts on googling on the computer that
evening and making telephone calls.
She was also asked, in cross-examination by Mr Koops, and there was quite
a bit of submissions today, about the times that were relevant in terms of this
incident. The submission from Mr Koops was that the time that Alison Pels
arrived was 8.15. Mr Longville's submission was that there was no fixed time,
that it was somewhere in the region of 8.05, 8.10, 8.15. The evidence of
Nicole Saunders on that point, as I confined it, was that Mr Koops asked her in
cross-examination:
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"Q. Alison arrived, would you agree with me, at 8.15?
A. Possibly."
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On any of the submissions by the parties, Nicole Saunders has to be an
independent witness. Either she is someone who is engaged by Ms Pels, as
part of a staged event or she was contacted by Ms Hamilton, or someone on
her behalf, as part of the staged event. In any event, I accept her as a truthful
witness. The next witness for the complainant was her solicitor. His evidence
goes to answer a suggestion that Alison Pels had arranged the booking of the
hall through a non-de-plume, Sharon Flussle.
He gave evidence that he only became aware of that name after reading
Nicole Saunders' statement. Both Alison Pels and Michael Pels were
extensively cross-examined. The defence case is that Alison Pels and
Michael Pels conspired to bring this application, to thwart the defendant's
attempts to put on her lecture series, and to stop an investigation into
allegations that Michael Pels and his son, Conrad, had raped Alison Pels some
years ago.
The cross-examination of Alison Pels had a consistent theme that she was a
liar, and it has been put to the court that she is a compulsive liar. It was put
that she had always lied and could not, in any sense, be trusted. It has been
put strongly by Mr Koops that she arranged the events of 17 October, and then
used them as an excuse to commence these proceedings. The defence have
tendered a number of documents to confirm and support their submission that
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Alison Pels is a liar.
5
These included exhibit A, to show that she really had a lot of love for Ken and
Jan and, far from being a victim of sexual assault, respected them. Exhibit B's
photos, showing a happy Alison, one of them laughing openly with Ken Dyers.
Exhibit C, two statutory declarations, the contents of which conflict with her
evidence-in-chief, and contain admissions of lying. And exhibit Y, the
processing session with Karli Stevenson, where that was recorded and then
later transcribed.
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Ms Pels explained that she was expected to write documents, like those in
exhibit A, as part of her involvement in Kenja. I found her less convincing in
relation to the photos. I think, at one stage, from memory, she described
herself as looking as though she was roaring like a lion, but it is clear to me
that she was in fact laughing. But, at least until February 2007, she had
apparently been a willing participant in Kenja.
There had been quite a bit of evidence about exhibit C. Alison says she was
required to make those statutory declarations in order to leave Kenja. She
said they were dictated to her by Karli Stevenson and they were retained by
Karli Stevenson. Ms Pels was not given a copy and the originals ended up
with the solicitors for Ms Hamilton. Karli Stevenson was with Alison when each
declaration was made before a JP. The documents, as submitted by
Mr Longville, have no value for Alison Pels, but they clearly have forensic
value for Kenja. I find that the exhibit C statutory declarations were made in
the manner and for the reasons given by Alison Pels.
I now turn to exhibit Y. I cannot conceive of any reason that this processing
session was taped that could have been of any benefit to Alison Pels. She did
not get to keep the tape or a transcript. She never asked for a transcript or
was given a copy. The transcript itself is quite remarkable. Alison is asked
about her lying habits. On my reading of the exhibit, Alison's lies appear to be
youthful fantasies; for example, see p 8 of exhibit Y, not lies in the manner in
which it has been put forward on behalf of the defendant.
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That Alison made up a persona to explain to her school friends what she was
doing on weekends does not make her a compulsive liar. In early 2007 she
was obviously going through a difficult time; a relationship break-up and an
abortion and then leaving Kenja. I do not find that Alison Pels is a compulsive
liar. I found Michael Pels to be an impressive witness. His evidence was clear
and precise. In cross-examination he gave proper concessions in respect of
his evidence and remained consistent throughout his time in the witness box.
There was a lot of evidence about whether or not Mr Pels and Conrad sexually
assaulted Alison. It was put to Alison that she had told her mother of this
allegation. That was denied by Alison Pels. She also denied that there was
a document at Kenja about that allegation. The same allegation was put to
Michael Pels. He replied to a question:
"Q. Do you recall Marti speaking to you, saying Alison said you and
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Conrad sexually assaulted her?
A. Absolutely not. The first time I heard that was when Ken Dyers
rang me and said those allegations had been made as well. I
dismissed it as complete and utter rubbish."
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In her session with Karli Stevenson, Alison was asked about what lies she had
told about Conrad; see p 15. It was the perfect opportunity for her to confirm
or deny Conrad had raped her. She did neither. Mr Pels was cross-examined
about the night of 17 October. His version was consistent with that of
Alison Pels and Nicole Saunders, except for the times calls were made and
whether or not Nicole was in his car when he called the police. He conceded
that he may have been in error about the time of calls and Nicole being
present.
In my view, they are not matters of such significance as to throw doubt on his
testimony. He was prepared to agree that he may not have a perfect
recollection of such detail. His evidence of that evening was still, in essence,
consistent with that of the other witnesses called in the complainant's case.
Mr Pels explained why he called Lane Cove Police and why he eventually went
to Gordon Police. Although it is clear Gordon Police Station was much closer,
Mr Pels explanations for his actions in respect of contacting the police that
night were not unreasonable. I accept his evidence on those points.
I now turn to the defence case. Jan Hamilton Dyers gave evidence. She
denied ever using MSN or email to contact Alison Pels, as Brandon Garrett,
James Chan or Sharon Flussle. She denied knowing or previously meeting
Nicole Saunders. She denied being at West Pymble Community Hall on
17 October 2007, and offered what amounted to alibi evidence for her
movements on that evening. She gave evidence she was in her flat in
Surry Hills with a number of Kenja members, including Amanda Hamilton and
Karli Stevenson. Evidence was given of a video being produced, which was
an idea of Andrew Smith's. It was to make a video of the making of the lecture
series.
That video was shown in evidence. Despite amusing some people sitting in
court in support of the defendant, I found this video - to use that word again "bizarre". It had no logical theme, it was amateurish. It did, however, have
some surprising features. Andrew Smith holding a newspaper towards the
camera, a clock in the lounge room being shown at around 8 pm for no logical
purpose, Amanda Hamilton, Karli Stevenson and the defendant either in the
kitchen or otherwise in the unit. The only relevant content about the lecture
series was a brief discussion between Andrew Smith and Jan Hamilton. I will
return to the video later.
The defendant denied having any personal feelings towards Alison Pels and,
although she considered Alison and her father primarily responsible for the late
Mr Dyers' passing, she had no desire for revenge. She was extensively
cross-examined by Mr Longville. She denied knowing about any allegations
that Alison Pels had been sexually assaulted by Ken Dyers until after the
statutory declarations, exhibit C, were made; that is, after 13 March 2007. She
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was asked about the conspiracy against Kenja and said it began after
Marti Pels told Mike that Alison had complained of Mike and Conrad raping
her.
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She gave evidence that she heard of this allegation against Mr Pels and
Conrad after it was disclosed to Marti Pels on a Sunday night, and then to
Karli Stevenson in a processing session. She found out on 11 or 12 March.
She had not made any report to the police, although she had spoken with
Marti, as she believed Marti had - and to use her words - "communicated this
to the police." She then gave evidence and, again, I quote, "In my reality he
has become disturbed and entered into an agreement to divert attention from
himself."
Significantly, these allegations have been raised at the same time Alison
disclosed that Mr Dyers had sexually assaulted her. They cannot be seen in
isolation from other events, such as exhibit C. Mr Longville's
cross-examination suggested that these allegations, the statutory declarations
and other documents, such as the affidavits, are evidence of Kenja in damage
control. There is some substance in that suggestion.
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The lecture series transcript is also a revealing document. In my view, it is an
extraordinary production, which is somewhat childlike while being aggressively
destructive of certain reputations. Mr Pels' description of it as, "slanderous
drivel and rubbish" is consistent with the impression that it made on me. It is
damaging and hurtful to Alison Pels and her father and it cannot be ignored in
the overall context of these proceedings.
Although I excluded evidence of the alleged sexual assaults, other than the
evidence of complaint, it became clear that this was a matter of some greater
complexity than just the events of 17 October 2007. There was also the
production of Alison Pels' diary in court, although not being used. How it came
to be in the possession of the defendant was never explained. However, it
was clear from evidence the defendant had read it. If it had contained the
allegations against Michael Pels and Conrad, which have been put before the
court, no doubt it would have been put into evidence.
The next witness was Amanda Hamilton. She gave evidence that on
17 October 2007 she was at her sister's unit in Surry Hills. She denied being
at West Pymble Community Hall. She was visible in the documentary video,
which is exhibit U. She was also amused by it. She gave evidence that she
had been involved in Kenja for 20 to 25 years, that she admired and still
admires Ken Dyers, and she admires her sister. She believes the content of
the lecture series. She played her part in the lecture with conviction.
Like other Kenja witnesses, she was not prepared to acknowledge
Michael Pels as other than a man who had made money. She said he spent
time building a business. She did not respect him for that success. She
believes that Alison and Michael contributed to the death of Ken Dyers. She
denied being at West Pymble Community Hall on 17 October, was not aware
of any communications in relation to the audition, and did not know
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Nicole Saunders. She said that she would not lie for her sister or mislead the
court.
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Andrew Smith was the next witness. He gave evidence that on
17 October 2007 he was at Jan Hamilton's unit at Surry Hills. He arrived
between 7 pm and 8 pm and was there for an hour. He was involved in
making a film for boys in Kenja, the making of, "The Making of 'Guilty until
Proven Innocent'". A week earlier he had made some footage of a boy called
Luke. He gave evidence that Emma was controlling the camera that evening.
He was shown the DVD in evidence, which he also found amusing.
He said that he was involved in downloading the footage from the video
camera and making the DVD. He gave evidence he was competent as an
amateur in using the video and computers. He is clearly shown on the video,
holding up a newspaper to the camera. The paper is dated 17 October 2007,
and that addition of the Daily Telegraph was tendered into evidence, or at least
the front page. As I said earlier, the video then moved to a clock showing
a time of approximately 8 o'clock. The footage date on the video is
17 October 2007.
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When the video was sought to be tendered I would not allow its tender without
the production of the original tape. The following morning that was played on
a video recorder in court. When the tape begins it has a date on the footage of
25 October 2007. When that was played in court Mr Longville became quite
animated at that date and withdrew his objection to the tender of the
document. It then reverted, shortly thereafter, to 17 October 2007, within a
couple of seconds. Mr Smith gave evidence that the footage dated
17 October 2007 was shot on that date.
He said that the tape had been used again on 25 October 2007 to film a short
piece with two stuffed animals, talking about fruit. He said it was an accidental
turning on and off of the video to explain the other short section of tape with
the date of 25 October. If he had been filming the skit involving stuffed animals
talking about fruit on 25 October, there is no explanation as to why it suddenly
cut off. That remains unexplained. It is not complete. The only credible
explanation is that the tape was reused after 25 October 2007 to take the
footage dated 17 October 2007.
45
It is quite easy to change the date on the camera and also on computers, and
to have a dated embedded in the video as 17 October 2007 does not mean it
was shot on that date. I find that Mr Smith certainly had the expertise to do
that, despite his initial responses to questions about changing the date on the
camera, such as, "I could work it out or I could go through the menus". I have
no doubt he knew exactly how to change the date. In relation to his evidence,
I reject it.
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The video DVD tendered to the court does not depict events at
Jan Hamilton Dyers' on 17 October 2007, but on a date after 25 October 2007.
All evidence by witnesses in this case, who are depicted in that video and who
say it was taken on 17 October 2007, is, likewise, rejected. In my view, the
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production of that evidence was for the purpose of providing alibis to
Jan Hamilton, Amanda Hamilton and Karli Stevenson. It is, in my view, an
attempt, at best, to mislead the court.
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15
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25
30
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Karli Stevenson was the next witness for the defence. For the reasons I have
given above, I regard her evidence with suspicion, as she was also depicted in
the video on 17 October. Her evidence about the statutory declarations is
rejected. I find that her retention of those documents cannot be explained in
the way she suggested to the court. Those documents were kept by her for
Kenja's benefit. They were of no benefit to Alison Pels. Her recording of the
processing session with Alison Pels, again, can only have been retained for
the benefit of Kenja.
I do not accept that she only contacted Jan Hamilton after Alison had signed
the statutory declarations. During her cross-examination she was
unconvincing and often non-responsive. One thing she did confirm - and this
evidence I accept - was that Amanda Hamilton has fun in clowning classes,
using a Russian accent. She denied that she was one of the women attending
Ku-ring-gai Council, shown in the CCTV footage. In respect of that video
footage, I am unable to positively identify anyone, except to say that I am
satisfied that neither woman was Alison Pels.
The final witness was Marti Pels. Her evidence was called to rebut the
evidence of Alison and Michael. She is still connected with, and an active
member, of Kenja. She has chosen to remain with Kenja, over her former
husband and her children. In examination-in-chief she was a fluent and
impressive witness. She appeared as relaxed as one can be in the witness
box. However, in cross-examination she was extremely hesitant with her
answers. There were often lengthy pauses. I formed the view that she was
prepared to give evidence to assist the cause of Ken Dyers, Jan Hamilton or
Kenja.
Her evidence about Alison saying she was raped by her father and her brother
I do not believe. Accordingly, where the evidence of Alison or Michael Pels
has been contradicted by any of the evidence of the defendants, I accept the
evidence of Michael Pels and Alison Pels. I, therefore, find that Alison Pels
was the subject of a hoax audition on 17 October 2007. The suggestion that
Alison staged the audition, the MSN communications, including hiring
actresses, including a 60-year-old woman, is, in my view, unlikely.
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A suggestion is that Michael Pels would have had the resources to carry out
such a hoax. Likewise, Kenja would have had the resources. The minor
inconsistencies noted by Mr Koops, are the types of inconsistencies which give
the ring of truth to evidence. The hoax audition has all the hallmarks of the
bizarre conduct which I have observed in evidence associated with Kenja in
these proceedings. It is consistent with the bizarre transcript of the lecture
series, the video and the processing session.
I FIND THAT JAN HAMILTON, AMANDA HAMILTON AND
KARLI STEVENSON WERE PRESENT AT
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WEST PYMBLE COMMUNITY HALL ON 17 OCTOBER 2007. I FIND THEY
WERE PRESENT FOR THE PURPOSE OF INTIMIDATING ALISON PELS. A
person unknown, but almost certainly associated with Kenja, was involved in
the MSN email communications and the booking of the hall. The video of
17 October 2007 was produced to provide an alibi and was an attempt to
mislead the court or pervert the course of justice.
EVIDENCE GIVEN ABOUT THE MAKING OF THAT VIDEO, BY
JAN HAMILTON, AMANDA HAMILTON, KARLI STEVENSON AND
ANDREW SMITH, I FIND DELIBERATELY FALSE. I INTEND TO CALL FOR
A TRANSCRIPT OF THESE PROCEEDING AND MY REASONS FOR
DECISION TO BE SENT TO THE ATTORNEY-GENERAL, TOGETHER WITH
MY FINDINGS. I FIND THAT ALISON PELS HAS REASONABLE GROUNDS
TO FEAR HARASSMENT AND INTIMIDATION FROM THE DEFENDANT,
EITHER DIRECTLY OR THROUGH MEMBERS OF KENJA. I FIND THE
LECTURE SERIES TO BE A CONTINUATION OF THAT HARASSMENT, IN
THAT A REASONABLE PERSON IN THE POSITION OF ALISON PELS
COULD BE HARASSED AND INTIMIDATED BY THAT PERFORMANCE.
Accordingly, I propose to make the order sought.
LONGVILLE: May it please the court.
HIS HONOUR: The terms of the order, Mr Longville?
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LONGVILLE: Your Honour, on instructions, as per the document, which
should be before the court, in terms of 1A, 1B, 1C, 47 - and would your Honour
just pardon my back? Your Honour, my instructions are that an order is sought
for five years. I'll leave that in the hands of the court. I certainly appreciate
that two years was nominated in the original application, but that's my
instructions at this point.
HIS HONOUR: Two years will be enough.
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LONGVILLE: May it please the court. In essence, that takes care of the
orders, your Honour. The only other matter to attend to is an application for
costs. I'm instructed to make that application at the court's convenience.
HIS HONOUR: Yes, well, costs would normally follow the event in..(not
transcribable)..proceedings.
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LONGVILLE: Pardon my back, your Honour, excuse me. Yes, well,
your Honour knows the legislation, of course. It really is a matter of discretion,
of course. There's no limitations that apply in the legislation. The relevant
parts of the Criminal Procedure Act apply. Essentially, it's an at large,
unfettered discretion of your Honour. I would submit, respectfully, that
ordinarily - whether it be Alison Pels or, indeed, Jan Hamilton, if either was to
succeed - each would expect that their costs be paid.
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It would only be just in the circumstances of this particular case, and therefore
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I ask that an order be made. In my submission, the only real issue is the
reasonable aspect of that. Your Honour, my instructing solicitor has prepared
a schedule. Not a schedule of itemised billing, so to speak, but in terms of
where the final cost is born out of, so to speak. I hand that up. I understand
my learned friend may have some submissions to make about that. That,
essentially, breaks it up into solicitor's firm's fees, disbursements and counsel's
fees. And WIP, I'm told, is, "work in process", your Honour.
HIS HONOUR: Yes.
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LONGVILLE: The only point I make is that I understand that this proceeding
has lasted some six days, I not appearing on the first of those six days, as
I understand it, but six days including today. It has been quite a complex
matter that’s before this jurisdiction and, indeed, both parties have put a lot of
time and effort into it. It certainly is a complex type of case. Unless my friend
has any submissions to make regarding the reasonable aspect of the costs, we
seek the costs as identified in that document, your Honour.
HIS HONOUR: Yes. Mr Koops?
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KOOPS: I think these appear to be actual costs. In my submission,
a reasonable order would be to give an order in the vicinity of
seventy-five percent of actual costs, allowing for what one might describe as
the difference between a Commodore and a Rolls Royce. That’s generally the
principle that applies on a taxation, your Honour.
LONGVILLE: Mr Longville, you're-LONGVILLE: Party/party.
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HIS HONOUR: --not suggesting indemnity costs?
LONGVILLE: No, that wouldn’t apply in this particular instance.
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HIS HONOUR: No.
LONGVILLE: And I understand my learned friend is saying, essentially,
party/party costs. I couldn’t argue with that, and may it please the court.
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HIS HONOUR: Have you got anything to say about seventy-five percent?
You're not arguing with that concept?
KOOPS: No, no.
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HIS HONOUR: Have you got a calculator, Mr Rattenbury?
RATTENBURY: I do, your Honour. I'll work that out.
HIS HONOUR: Thirty-seven and a half thousand?
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RATTENBURY: Thirty-seven and a half, your Honour.
HIS HONOUR: Are there specified premises for the purpose of order 4?
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LONGVILLE: Your Honour, I'll just get those.
HIS HONOUR: Look, they don't have to be, I can just make it for-LONGVILLE: No, apparently the party started foraging for it.
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HIS HONOUR: What distance is sought for order 4?
LONGVILLE: Unless there's any change of that 100 metres, that'll be sought
as well.
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HIS HONOUR: Mr Longville, the only problem I ever have with 100 metres
type-things, is particularly when it relates to workers. What if she's working in
Pitt Street Mall, then hence-20
LONGVILLE: I agree. Yes, I'm not one to-HIS HONOUR: How about just not to enter any premises, would be sufficient.
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LONGVILLE: Yes. Yes. In this big city of ours we often find ourselves
travelling past and to and from locations.
HIS HONOUR: Okay, so 100 metres
LONGVILLE: The address for the record is 11/501 Glebe Point Road, Glebe.
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HIS HONOUR: Just stand up, please, Ms Hamilton.
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I MAKE AN ORDER THAT YOU MUST NOT ASSAULT, MOLEST, HARASS,
THREATEN OR OTHERWISE INTERFERE WITH ALISON PELS OR ANY
PERSON WITH WHOM SHE HAS A DOMESTIC RELATIONSHIP.
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YOU MUST NOT ENGAGE IN ANY OTHER CONDUCT THAT INTIMIDATES
ALISON PELS OR ANY PERSON WITH WHOM SHE HAS A DOMESTIC
RELATIONSHIP. YOU MUST NOT STALK ALISON PELS OR ANY PERSON
WITH WHOM SHE HAS A DOMESTIC RELATIONSHIP.
YOU MUST NOT ENTER THE PREMISES AT WHICH ALISON PELS MAY,
FROM TIME TO TIME, RESIDE OR WORK, INCLUDING PREMISES AT
11/501 GLEBE POINT ROAD, GLEBE.
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FINALLY, YOU MUST NOT APPROACH OR CONTACT ALISON PELS BY
ANY MEANS WHATSOEVER, EXCEPT THROUGH YOUR LEGAL
REPRESENTATIVE.
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I HAVE TO TELL YOU THAT IF YOU BREACH THAT ORDER, IT IS A
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CRIMINAL OFFENCE. THE FINDING ITSELF AND THE MAKING OF THE
ORDER IS NOT A CRIMINAL OFFENCE, AND HAS NO CRIMINAL
SANCTION UNLESS YOU BREACH IT.
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IF YOU DO BREACH IT, YOU CAN FACE A PENALTY OF A FINE OF UP TO
$5,500 OR TWO YEARS IN GAOL. IF YOU BREACH IT WITH AN ACT OF
VIOLENCE, THEN THE LEGISLATION AND THE CASES SAY THAT THE
FIRST PORT OF CALL IS A GOAL SENTENCE. YOU NEED TO
UNDERSTAND THE SERIOUSNESS OF A BREACH.
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You will be given a copy of the order, either at court today or it can be sent to
you.
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I FURTHER ORDER THAT THE DEFENDANT IS TO PAY THE
COMPLAINANT'S COSTS IN THE SUM OF $37,500. THERE WILL BE
28 DAYS TO PAY.
Gentlemen, you're now excused.
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LONGVILLE: May it please the court.
KOOPS: Thank you, your Honour.
ADJOURNED
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