Grimmer family in inquest deadlock as podcast fails to spur on state's top lawman

The renewed push for justice follows the recent airing of a stunning final chapter to the BBC true crime podcast Fairy Meadow, in which a new witness describes having personally watched as Cheryl was kidnapped from Fairy Meadow Beach, when he was himself a child.

NSW attorney-general Michael Daley has previously refused requests from the Grimmer family for a fresh inquest, and did so again publicly this week.

He did not explain his refusal, but in a statement noted that anyone is free to apply for an inquest.

Earlier this year he told the ABC he would only intervene "where there was some particular reason why it was not possible or appropriate for anyone else to make the application".

Greens MP and lawyer Sue Higginson, who has raised the matter in state parliament, said it should not fall on the shoulders of the long-suffering Grimmer family to agitate for an inquest.

"They don't have the resources and also they are victims of system that hasn't worked. So should the burden keep falling to them to access justice? The answer rightly is no," she said.

"If you've got the backing from the first law officer of the state, then the wheels of justice turn. That's how the system works."

Ms Higginson said the new witness unearthed by the podcast was cause enough for a fresh inquiry.

"The circumstances are absolutely the right circumstances for the attorney-general to take action and quite frankly I'm really appalled that the attorney-general, in the face of what's just happened - new evidence - and his knowledge of the whole history of this - is not on a quest for justice.

"I find that shocking and flabbergasting.

"I think the state and the public expect more from our first legal officer."

For Cheryl's family, an inquest may be their only remaining legal avenue, after a man who confessed to killing Cheryl as a teenage delinquent repeatedly slipped through the hands of law enforcement.

The man, known as 'Mercury', allegedly confessed to the January 12, 1970 killing in an interview with police a year later, but walked free for decades due to apparent "inconsistencies" between his account and what police already knew about the case.

He remained at liberty even after his police statement was given another combing-over at a 2012 inquest, which found Cheryl had died, but that her cause of death was unknown.

A spectacular breakthrough came in 2017, when detectives who were revisiting the case honed in on 'Mercury's' confession and extradited him from Victoria to face a charge of murder.

But the 1971 confession was deemed inadmissible evidence at a 2019 pretrial hearing because 'Mercury' had provided it to police as an unaccompanied minor - a circumstance not allowed under today's laws.

Cheryl vanished from Fairy Meadow Beach on January 12, 1970, while on a day out with her mother and three brothers Ricki, 7, Stephen, 5, and Paul, 4.

A new wave of news consumers have become invested in the Grimmers' cause recently due to the Fairy Meadow podcast by BBC broadcaster John Kay, who concluded the eight-part series in February last year but aired a surprise bonus episode on November 20, after he made contact with a new witness.

The man told Kay he was seven years old and had recently immigrated to Australia with his family from Slovenia when he visited Fairy Meadow Beach and saw a male departing in "full-stride" with a little girl under his arm. He said the man held the girl "low on his hip" and that she was "screaming and yelling".

"I'm certain I saw the guy that took her," the unidentified man has told Kay.

He described the male as 15-16 years old, with medium-dark hair and short back and sides.

"He was holding her by the hip and she was sort of thrashing with her hips ... it was an unusual way for a person to carry a child," he said.

Explaining why he didn't come forward, he said he missed the initial media frenzy surrounding the abduction, partly because his family didn't own a radio or television.

"You've got to remember we were only in Australia for ... four weeks. I didn't even speak English. We'd migrated from Slovenia ... I didn't mention it to my mum or dad at all. It was just one of those fleeting moments I spose. I'm a seven year old. It wasn't even on my radar that it was such an important thing that I saw," he said.

The man, now working as a designer, told Kay he later took an interest in media coverage concerning Cheryl, but never acted on his suspicion that he had witnessed the abduction.

He said he drew two sketches of the suspect male about 40 years ago.

"I remember they had a two-page story on it in the Mercury and that's why I sketched it out at the time," he said.

"I was planning to take that to the police actually, those two drawings, when I had time, but I just never got around to it. then I ended up getting married and moving ... I don't even know where they are now."

He said he did not approach police even after he heard they had arrested 'Mercury'.

"I thought well they've got the guy, the job's done."

One of the cold case detectives responsible for reviving the case in 2017, the now-retired Damian Loone, told Kay the new witness was "very compelling ... very credible."

Members of Cheryl's family have appealed to the attorney-general to advance a new criminal case against 'Mercury', and to act to change the legislation that prevents his true identity being publicly revealed (because he was a minor at the time of the alleged offending).

A coroner's court would have the same powers of suppression and non-publication orders - the process would not necessarily expose 'Mercury's' identity.

But Ms Higginson believes an inquest could deliver the family what matters most.

"He ['Mercury'] wouldn't have the same risks, so to speak, because the coroner can't make criminal findings, so in some ways this is perhaps the most appropriate avenue, where the truth could be told, or the truth could be found or we could get closer to the truth," she said.

"We know that the initial police investigations were sloppy. There were unidentified statements that only resurfaced years later.

"One of the other things an inquest would help to shine a light on is, how did the investigation go wrong? Why did we not get an outcome way back then?

"A young girl was taken and never, ever seen again. That is an enormous failing of the state. There are two very serious prongs to this story: one is, what actually happened, and two is, how did the system and the state fail both Cheryl and Cheryl's family, and the public?"

NSW Attorney General Michael Daley extends his deepest sympathies to the family of Cheryl Grimmer.

Cheryl disappeared from Fairy Meadow Beach at the age of three in 1970 and has not been found. The loss of a child is a tragedy, and the Grimmer family has lived with this pain and suffering for decades.

The Attorney General has sought advice from the Department of Communities and Justice in relation to this matter and has given it very close consideration.

The Attorney General has also written to Dr Michael Grimmer, a cousin of Cheryl, directly responding to concerns Dr Grimmer expressed in a letter to the Attorney General earlier this year.

In NSW, the Director of Public Prosecutions (DPP) has primary responsibility for the prosecution of serious criminal offences, including appeals.

The independence of the DPP and its separation from the executive government help ensure that prosecutorial decisions are made, and appear to be made, impartially, objectively and without political interference. These are important principles that protect the integrity of the criminal justice system.

The proceedings concerning "Mercury", a teenager whose record of interview with police was ruled inadmissible by the Supreme Court in 2019, have already been closely examined to consider if there were any prospects of a successful appeal.

The DPP did not appeal the decision and the former Attorney General, after seeking the advice of the Crown Advocate, determined that any appeal against the Supreme Court's decision would fail.

After careful consideration, the Attorney General has determined it is not appropriate to take any further action in relation to these proceedings.

Section 13 of the Children (Criminal Proceedings) Act 1987 states that any statement, confession, admission or information made or given to a police officer by a child who is party to criminal proceedings is inadmissible in those proceedings unless a responsible person, adult, or legal practitioner is present when it is made or given.

However, a court can still admit the evidence where it is satisfied that there was a proper and sufficient reason for the absence of such an adult and considers that, in the particular circumstances of the case, the statement, confession, admission or information should be admitted.

Section 13 is a safeguard to ensure that young people interviewed by police have adequate protections against self-incrimination in circumstances where there may be unfairness involved, recognising that young people may have particular vulnerabilities.

This was a case where the particular circumstances, on the Court's assessment, did not warrant the admission of the evidence. The Court also formed the view that the evidence should be excluded on the basis of unfairness pursuant to s 90 of the Evidence Act 1995.

The NSW Government does not consider that the circumstances of this case warrant a re-examination of the operation of section 13.

Under section 85 of the Coroners Act 2009, the Supreme Court may, on the application of the Attorney General or any other person, order that a previous inquest be quashed and that a new inquest should be held.

The Attorney General will not apply for a fresh coronial inquest in this matter.

Section 15A of the Children (Criminal Proceedings) Act 1987 relates to proceedings involving children and prohibits the publication of a person's name, or any information that could be used to identify a person, in a way that connects that person with criminal proceedings, including if the person was the accused in the proceedings and was a child at the time of the alleged offence.

A breach of section 15A is a criminal offence, punishable by up to 12 months' imprisonment. The provision operates automatically and does not require a court order. There are very limited exceptions to this provision, including that a court may make an order permitting publication of the person's identity where the person has been convicted of a serious children's indictable offence. This is not the case in this matter.

The Attorney General cannot override the operation of section 15A. It is a fundamental principle of the rule of law that everyone, including the Attorney General, is bound by the laws created by Parliament.