NSW won’t pursue an appeal in the Cheryl Grimmer case

NSW Attorney-General will not appeal a judge’s shock decision to exclude a murder confession in the half-century old case.

Cheryl Grimmer, aged three, went missing from Fairy Meadow beach in Wollongong on January 12, 1970, and has never been found. Picture: Supplied

The NSW Attorney-General Mark Speakman, has ruled out appealing a recent court ruling that a 1971 confession to the murder of three-year-old Cheryl Grimmer was inadmissable — saying it would be “doomed to fail and would be cruel to the Grimmer family”.

Mr Speakman said he had spoken by phone with the Grimmer family this morning to advise them it was “crystal clear” to him there appeared to be no legal avenues left to relaunch a prosecution case against the accused killer so he would finally face trial for the half-century old case.

“I know this decision is a kick in the guts to the Grimmer family,” Mr Speakman said.

“They are devastated by this decision. They have lived in hope for a half a century”

Cheryl went missing from Fairy Meadow beach in Wollongong on January 12, 1970, and has never been found.

Following renewed investigations by NSW detectives a man was charged in 2017 with her murder. He cannot be named because he was 15 when he allegedly snatched Cheryl with the intention of sexually assaulting her, before strangling her when she cried out.

He was due to face trial in the NSW Supreme Court this month, but the charge was dropped after judge Robert Allan Hulme ruled in February that a 1971 police interview in which he confessed should be excluded.

Mr Speakman ordered a review of the case by Crown Advocate David Kell SC after the NSW Director of Public Prosecutions Lloyd Babb SC declined to appeal.

“This is an exceptional case,” Mr Speakman said. “”I am confident I have left no stone unturned.”

He said among the factors that had been fully considered by Justice Hume was the alleged killer’s “disturbed upbringing, his age and his below average intelligence.”

He said he wished he could “rewrite history”, but back in the 1970s “people didn’t appreciate how vulnerable juveniles had to be protected against themselves.”

Cheryl’s family were “Ten Pound Poms” staying at a commonwealth hostel for migrants when they went to Fairy Meadow beach for a swim on a warm summer’s day.

An afternoon storm sent Cheryl and her older brothers Ricki, 7, Stephen, 5, and Paul, 4, back to a shower block to wash off and change.

Cheryl playfully refused to come out of the girls’ change room so Ricki went to fetch their mother, Carole. When they returned 90 seconds later, Cheryl was gone.

“I still see everything crystal clear, like it’s in front of me,” Mr Nash told The Australian earlier this month.

“She was just laughing, being her cheeky self, saying `no, I’m not coming, I won’t come out’.

“I just didn’t want to go into the ladies’ toilets. That’s when I made the fatal mistake of leaving and going to get my mother.”

Laws now require a parent, other adult or lawyer to be present for child confessions to be admissible, however this was not the case at the time.

Justice Hulme, after finding the new laws applied retrospectively, said police had a valid reason in not having another adult present because it was not required at the time.

But he noted the “particular vulnerability” of the accused and the police interview style. A caution was issued as soon as the teenager started making admissions, but not before.