Crisis of Identity

This was an opportune time to fill Miles in on everything that has occurred to date. I started with my chance encounter with Dawes during my Queensland holiday. I included everything that has occurred since, up to Dawes serving this warrant on mum, visiting my employer and finished with the newspaper article. I even presented Miles with a copy of my birth certificate.

Miles scribbled notes during my summary. When I was finished he flipped the overturned pages back to the front. ‘This Detective…’ he checked his notes. ‘Mr Dawes… suspects you are this boy who went missing in 1994…this Jayden Evans,’ he read from his notes. I nodded my confirmation. ‘And Dawes suspects you, Vicky, are the person responsible for taking him…?’

‘That’s correct.’

‘That is astounding,’ Miles said. ‘I take it that after this detective identified Kade’s likeness to these computer generated images of Jayden Evans, he focussed his attention on you as a suspect, simply because you are Kade’s parent.’

‘It appears so,’ mum said.

‘I see.’ He made notes. ‘Do you have a copy of this modified image of Jayden Evans?’

‘No. But it is available on line,’ I said.

Miles scribbled notes. ‘OK. I’ll get a copy later. Now… I assume Mr Dawes has a copy of your birth certificate…?’ he said as a question.

‘Absolutely…’

Miles shook his head. ‘Bizarre.’ He continued to scribble notes. ‘When Mr Dawes visited you around three weeks ago Vicky, and served the warrant on you… Did he ask you questions about your whereabouts and actions around the time this young boy, Jayden went missing?’

‘He did,’ mum said.

‘And during this conversation of three weeks ago, did he allege, or in any way, suggest you were responsible for taking this young boy?’

‘Yes. Much to my shock,’ mum said.

‘I’m sure. Tell me this please… Before Mr Dawes discussed this missing boy with you, did he caution you…? By that I mean, did he warn you of your rights that you were not obliged to answer any of his questions unless you chose to do so, or any such similar warning?’

‘No. He just asked a series of questions about my whereabouts.’

Miles scribbled notes. ‘Right… That was his first mistake. Anything you discussed with Mr Dawes when he visited your home is not admissible in evidence. If, as you have indicated, he failed to caution you of your rights before questioning you on this matter, then everything that was discussed after he arrived at your home cannot be presented to a court in evidence.’

‘I haven’t done anything wrong, so I don’t believe any answers I gave Dawes were incriminating anyway,’ mum said.

‘I understand. Regardless of the answers you provided, none of your discussion with Mr Dawes can be used in evidence.’

‘What about the DNA sample…?’ I asked. ‘If mum hasn’t done anything wrong, how can she be compelled to provide a sample?’

Miles lifted the warrant and passed his eyes over it. ‘We won’t be complying with this warrant...’ he said. ‘I will be instructing you not to provide your DNA to the police.’ Mum and I exchanged an excited glance. ‘I will seek a court order to have this warrant withdrawn.’

‘Do you mind if I ask, on what basis you will seek to have the warrant withdrawn?’ I said.

Miles slid the warrant across the table. He used his pen to point to the words, “issued by the Southport Magistrates Court”.

‘This warrant was issued by a Queensland court. If you resided in Queensland, you would have to comply with it. But this particular warrant does not have any jurisdiction here in WA. Mr Dawes has either used the incorrect warrant, or he may have withheld information from the court about your usual place of residence.’

‘So, mum doesn’t have to provide her DNA to the police?’

‘I will make application to the court today to have this warrant withdrawn. So, no. My instructions to you will be to ignore this warrant. You will not have to provide your DNA.’

Mum and I exchanged relieved smiles. ‘That is fantastic. Thank you so much,’ mum said. For the first time in days the hint of a sparkle returned to mum’s eyes.

‘Now. You understand, this does not prevent Mr Dawes from issuing the correct warrant, once this one is withdrawn.’

‘Knowing Dawes as I do… I expect that’s exactly what he will do…’

‘You may be right. Now… you also mentioned something about a defamatory newspaper article… What does this involve?’

I removed a copy of the West Australian from my brief case and handed it to Miles. ‘Page two,’ I said. Miles opened the paper. He scribbled notes as he read the article.

When he finished he gently placed his pen on his pad and clasped his hands together. ‘This is a little more complicated than the warrant,’ Miles began. ‘Defamation in Western Australia is a civil action, known as a tort. Broadly defined, it is the publication of unsubstantiated facts that hurt an individual’s reputation.’

‘Hasn’t that article done just that?’ I said lifting my chin to the newspaper.

’We could argue the publication contained what we will claim are unsubstantiated facts that have hurt both your reputations…’

‘Facts…? There’s no facts in that article, unsubstantiated or otherwise. It’s all blatant lies…’ I said.

‘Yes… I understand. But in these type of cases… a lie is the same as an unsubstantiated fact…OK…?’

‘OK. To me though, it implies elements of truth.’

Miles shook his head. ’No. That’s not how it is read.

‘Fair enough…’

‘The legal test used to determine whether a statement is defamatory is whether in the eyes of a “reasonable person” your reputations have been lowered…’

‘The pub test…’ I said.

‘Exactly.’

‘Let me ask you this…’ I said. ’How would you feel if some journalist falsely reported that your parents were kidnappers? Would you think your parents’ reputations had been lowered…?’

‘Well, that is what we are trying to prove here…’ Miles said.

He didn’t answer my question and I didn’t push it.

‘Allow me to ask you this…’ Miles began, ‘What are you hoping to achieve out of this defamation action…? Are you seeking financial compensation… an apology from the newspaper and a retraction of the article… or both…?’

‘I can only speak for myself… But I have no interest in seeking financial compensation, Mr Davis…’ mum said. ‘All I want is for my name and reputation to be cleared… exonerated, if you will…’

‘I am the same…’ I said. ‘I am not looking for a payout. My biggest wish is for Dawes to leave us alone… for good.’

’Good… I need to understand your expectations, because the law here in WA allows for a non-litigious remedy to defamation…A favourable outcome would be more difficult if all you are seeking is financial compensation.

‘Non-litigious remedy…?’ I asked.

’That’s right. In your case, this allows for the Western Australian newspaper to publish a retraction of the article and an apology, as an acceptable and quick way to resolve this matter.

‘I would be happy with that outcome…’ mum said.

‘I agree. But what about Dawes…? He was the one who approached the media and provided the lies to them.’

‘The position with Dawes is a little more complicated. We can still pursue him for defamation because he provided, what we claim to be lies to the newspaper journalist. However if the newspaper retract the article and apologize, then that action, in many ways, reverses the actions of Dawes.’

‘So we can’t go after Dawes…?’

‘Defamation by a police officer could prove problematic, but if you are insistent we try, I can instigate proceedings against him. We will say he caused damage to your reputations. I expect however he will argue one of a number of defences open to him.’

‘Such as…?’

’He could raise a Truth defence... Otherwise called justification. He could try and argue the comments were substantially true…’

‘And he will fail…’

’I understand. He could also try and argue Honest Opinion… This is where he believes his comments were not to be read as fact, but rather, his opinion on a matter of public interest, such as his investigation of a missing boy.

‘You’ve read the article… Does that read like an opinion…?’

Miles lifted the newspaper. ‘I suggest his comments, as printed in the article, are stated as facts, rather than suspicions or opinions and are not supported by evidence. That is where I expect his defence will fail.’

‘Good. I’m all for pursuing him… I think mum agrees…’ I looked to mum. She nodded.

‘With Mr Dawes, are you seeking financial compensation?’

‘No. Not unless he makes it difficult for us. We just want him to leave us alone… I am not Jayden Evans and I would like him to publicly declare that…then be required to cease his harassment of my mother and me over this missing child investigation.’

‘Very good…’ Miles scribbled some notes. ‘Now. For these actions to be successful, we need to be able to show the comments in print and those quoted from Dawes are unsubstantiated facts...’ I opened my mouth to correct him, but Miles continued. ‘Also known as lies…’ He said with a knowing grin.

‘How is the best way to do that?’

‘Let me recap what evidence we can prove.’ Miles referred to his notes. ‘We have a WA birth certificate for Kade showing a birth date of 16 January 1991. We have a number of photographs depicting Kade’s life from newborn to teenager. We will present evidence that you and your late husband moved to Karratha from the Gold Coast in 1989 for employment reasons. Essentially, you had left the state of Queensland before the young missing boy was born.’ Miles flipped a number of pages, as if searching. ‘What hospital was Kade born in?’

‘He was born in the remote mining town we lived in out of Karratha.’

Miles scribbled a note. ‘He was a home birth…?’

‘Not by choice, but yes, he was.’

Miles made notes. ‘Did a midwife assist with the birth?’

‘Yes.’

‘Do you remember her name?’

‘Marilyn… But I can’t remember her surname.’

‘That’s fine…’ Miles scribbled notes. ‘Was she a registered Nurse?’

‘As far as I believe, she was.’

‘The passage of time may present a challenge locating Marilyn,’ Miles said as he heavily underlined something. ‘We will also seek to obtain a deposition from the missing boy’s mother…’ Miles referred to his notes. ‘Mrs Mandy Evans, who we expect will attest that her missing son, Jayden had a distinctive birth mark on his ribs. You, Kade do not, correct?’

I lifted my shirt. ‘Correct.’

Miles made notes. ‘Is there anything else…?’

Mum and I exchanged a glance. ‘No… I think that’s it,’ I said. Mum agreed.

Miles flipped the overturned pages back to the front. ‘OK then,’ he said as he stood from his chair. ‘That will be enough for now…’ Mum and I also stood. ‘I will send a letter to the Western Australian newspaper seeking an immediate retraction and public apology. I will also send a letter to Dawes outlining our intent to pursue him for defamation. As for the warrant, I’ll let you know how my court application to withdraw goes later today.’ He extended his hand.

‘Thank you.’ I shook his hand.

Miles shook mum’s hand and we left the office, returning to the receptionist. After she confirmed mum’s personal details, we took an elevator back to the ground floor.

Our visit with Miles has already proven a success, in my mind at least. Seeing the sparkle return to mum’s eyes is well worth the two grand an hour fee.

The wafting aroma of freshly brewed coffee from a nearby café was hard to ignore as we exited onto St Georges Terrace. We took an outside table and I treated mum to morning tea of a coffee and a cake.