A judge described a police investigation into an alleged sexual assault of a child “grossly incompetent” as he found two men accused of indecently assaulting their young female relative not guilty on Thursday.
Despite an initial complaint to police in late 2012, the case did not come to court until July this year.
Following a trial by judge alone, Justice Timothy Owen said he had reached his verdicts because of the inherent weakness in the prosecution’s case. He did not find that the girl, who was 11 when the incident was reported, was lying when she said what her uncle and cousin had done to her. Because of the relationship, the judge, who delivered his judgment via Skype, having returned to his own jurisdiction after hearing the evidence last month, ordered that the defendants and any civilian witnesses not be named in order to protect the identity of the girl.
After telling an adult about the men’s behavior toward her, which started before she was in her teens, the girl made her first complaint to police in late 2012. There was an “inexcusable and wholly unexplained delay” from then until police spoke to the defendants in mid-2014, the judge said.
There was a further unexplained delay until 2015, and the matter did not come to court until July 2016.
Further, the officer who took notes of the girl’s first account lost those notes. A “truly lamentable” quality of the police response to her account was that people who lived in the house where the alleged abuse took place were never approached to provide witness statements, Justice Owen said.
Delay is not necessarily fatal to a prosecution case, but it is always the enemy of fairness and justice, the judge pointed out. In this case, the delay and the incompetent police response to the girl’s allegations had caused prejudice both to the girl and the defendants, he said.
Delay can place defendants at a disadvantage, especially when the defense is simple denial, the judge noted. Absent any details as to when precisely the alleged assaults occurred, the defendants could not advance an alibi, he pointed out.
Without access to the “lost notes,” it was impossible for defense attorneys Dennis Brady and Crister Brady to cross-examine the girl regarding details of who was alleged to have done what and in what circumstances, Justice Owen said.
He found that the delay, combined with the poor quality of the police investigation, had also potentially harmed the girl and had done her an injustice.
It seemed to him that the evidence she gave in 2012 was better than the evidence she gave during the trial in 2016. He said the quality had diminished and there were inconsistencies.
“Her evidence has plainly been affected by the passage of time,” he said.
Justice Owen said this had been a very troubling case to try. The way justice is administered in this country may mean that some guilty people go unpunished, he observed, but it is more important that innocent people are not wrongly convicted.