Crown Law overturned a criminal conviction for sexual abuse 10 years after the perpetrator was found guilty when the conviction exposed the Crown to legal liability in a civil case
When a victim of abuse in state custody filed a civil claim against the Crown using a criminal conviction as evidence, Crown Law applied to overturn the perpetrator's conviction for sexual offending 10 years after it had supported the prosecution. The application was successful.
Lawyer Sonja Cooper outlined the details of the case in a hearing at the Royal Commission of Inquiry into Abuse in Care. If someone makes allegations against a perpetrator in civil litigation then the Evidence Act says: "Proof that the person has been convicted of that offence is conclusive proof that the person committed the offence."
But Crown Law applied to overturn the conviction for sexual offending after the civil claim was filed, 10 years after the criminal case was heard. "The lengths to which the Crown went to horrified me," says Cooper.
Newsroom reported last week that Crown Law had withheld evidence requested by the police in an investigation into Lake Alice psychiatric hospital, caused delays in providing other evidence and also charged police $107,000 for providing documents. Newsroom has previously reported on the Crown's impunity in cases of abuse against children in its custody. Cooper says the Crown argued in the civil trial that the Court should not take account of the conviction - as it would otherwise be required to do - because of a retraction heard by a third party. She described the case in evidence given at the Royal Commission of Inquiry into Abuse in Care.
"One of the key allegations made by X related to sexual assaults perpetrated on him by another resident, CW, while he lived at YFT. In December 2004, CW was found guilty of four charges of sexual offending perpetrated against Mr X, and one charge of threatening to cause grievous bodily harm to Mr X. During the same trial, CW was found guilty of one charge of indecent assault on a girl under the age of 12. In addition, CW pleaded guilty to a second charge of indecent assault on a girl under 12 and one charge of wilful damage. In January 2005, CW was sentenced to four and a half years’ imprisonment. He did not appeal that sentence.
"Only the Crown can prosecute individuals for offending against others. It was the Crown which pursued the conviction against CW, but, when the Crown became a defendant, we saw the Crown step away from that role to take a position more advantageous to it in the civil litigation."
The caregiver that claimed to have heard the victim's retraction didn't give evidence in the criminal trial.
"We were very concerned that the Judge was applying a lower, civil standard of proof (the balance of probabilities) to effectively overturn a conviction obtained using the higher, criminal standard of proof of beyond reasonable doubt," Cooper told the Royal Commission.
The application was initiated by Crown Law, and MSD, which was the subject of the civil claim, paid for a lawyer for the perpetrator. Crown Law also blocked evidence about revelations the perpetrator had made in a sexual abuse programme in prison relating to his offending. The programme is for serious sexual offenders and is entered into voluntarily.
"We had obtained evidence from an expert about counter-intuitive evidence in sexual assault cases, particularly the circumstances in which sexual assault victims may retract their allegations. We had compelling evidence to explain why our plaintiff may have retracted his allegations, which we had put before the High Court. We were also endeavouring to get CW’s records from Kia Marama, a programme for those who acknowledge they are sex offenders in Christchurch, as we had obtained documents indicating that CW had admitted some kind of sexual offending against the plaintiff," Cooper said in evidence. "In relation to our application for the Kia Marama documents, Crown Law also acted for Corrections – opposing the release of the Kia Marama documents to Cooper Legal on the grounds this would undermine the integrity of the Kia Marama Programme.
"The Crown’s steadfast opposition to the Kia Marama documents being disclosed, supported by CW, prevented the plaintiff from obtaining material to counter CW’s denial of the offending and the significance of the purported retraction.
"This opposition reflected, in our view, the Crown’s conflicted position."
Crown Law is expected to act as a "model litigant", which means it should act fairly and honestly in civil proceedings and not require someone to prove something it knows to be true.
