Bittersweet judgment

A MAN who was jailed for over two years after a young child lied to police investigators that he sexually assaulted her has lost a claim in the Supreme Court for malicious prosecution.

David Foster was, however, awarded damages totalling $950,000 for false imprisonment, the second limb of his lawsuit, after lawyers for the Government agreed that the six days he spent in custody between his arrest and first court date was a breach of duty by the arresting officer.

Foster was arrested in 2008 and charged with sexual offences involving a minor, according to a court transcript of his lawsuit.

He spent two years in custody before he was offered bail and was ultimately freed in 2012 after the young child recanted her statement to the police in which she identified Foster as her attacker.

The child later pointed the police to her true attacker and the man subsequently pleaded guilty to the charges, according to the transcript.

Foster detailed in court documents the financial losses, mental and physical anguish, embarrassment and other “suffering” he endured over the four-year period of the criminal prosecution.

‘TERRIBLE WRONG’

Justice Dale Staple, who presided over the lawsuit, acknowledged that the attack on the young child was a “terrible wrong”, but chastised her for “deliberately” lying to the police as well as in the lower court and High Court about the identity of the person who sexually assaulted her.

“What she did caused very serious harm to the claimant [Foster] and whatever her motive or explanation for so doing, she should have been held accountable in some way,” Staple said in his 14-page judgment delivered on May 3.

“It was quite an ordeal that no person should have to suffer, especially where he had been adamant that he was innocent from the first day of his arrest.”

Foster’s attorneys, Marion Rose-Green and Andrea Lannaman, in seeking to convince the court about the malicious prosecution claim, complained that the detective who led the investigation did not take the time to properly probe the case “to ascertain the true facts” before arresting their client.

As an example, Lannaman pointed to the investigating officer’s admission that she did not interview the child’s siblings, who were said to be in the room at the time of the attacks, which happened on several nights.

The young victim told the police, in her witness statement, that in some instances the attacks occurred right next to her sleeping siblings.

NO WITNESS STATEMENT

The attorneys noted, too, that the investigating officer did not take a witness statement from the victim’s aunt and the different accounts from the child and her mother about critical aspects of the incidents.

Justice Staple concluded that the investigating officer did not provide a “credible explanation” as to why she did not record a statement from the child’s siblings.

“When pressed on this, the second defendant [the investigating officer] simply said that the complainant [child] said at the time that the siblings were sleeping and so she did not press them,” he noted, according to the transcript.

“In addition, she thought they were all younger and discounted their potential evidence. But it was pointed out to her that one of them, [name redacted], was older, yet he was not questioned.

Justice Staple said while this was “not ideal”, it does not, by itself, point to a failure by the investigating officer “to take reasonable care to appreciate all the relevant facts”.

“Mrs Lannaman is essentially asking me to speculate on what the children may or may not have said. In the absence of any evidence from the children themselves as to what they saw or heard, I am unable to say that whatever they may have seen or heard was relevant,” he reasoned.

The same reasoning could be applied to the failure to record a statement from the child’s aunt, the judge said.

He said the investigating officer was made aware of the incidents via a report from the hospital and responded by recording statements from the child and her mother, as well as getting a medical report from the doctor.

The judge said the facts that are relevant to the case would have come from those actions.

He said while he understands Lannaman’s assertion that with the evidence of the child – being a minor – should have been more “heavily scrutinised and perhaps better supported by other evidence”, he is of the view that the investigating officer had done sufficient to ascertain the salient facts to inform her honest belief that Foster “was probably guilty”.

“It is not for the investigating officer to decide whether or not an accused is guilty of an offence. The investigating officer is merely called upon to have sufficient facts to form an honest belief based on reasonable grounds that the accused is probably guilty,” he reasoned.