Tuesday, February 9, 1999
`Tainted' charges of sex assault thrown out
Judge targets poor conduct of crown, police in bizarre case
By Tracey Tyler and Harold Levy
Toronto Star Staff Reporters
A judge has thrown out sexual assault charges against a computer technician after police and prosecutors withheld evidence suggesting they already had someone in prison for the crime.
The mess started unravelling when the man, who maintained he was innocent, was convicted on the charges and sent to Warkworth Penitentiary five years ago.
There he met another inmate convicted on almost identical allegations by the same woman, right down to the same time frame.
The computer technician was the woman's stepfather and the man he ran into in prison was her natural father.
`His life has been ruined over the past six years. We're just not going to rush into anything.'
- Moishe Reiter
In staying the charges, Mr. Justice Barry MacDougall of the Ontario Court, general division, said abusive conduct by the prosecution and Port Hope police amounted to such an ``affront to fair play and decency'' it outweighed society's interest in continuing with a retrial ordered in 1997.
MacDougall had particularly harsh words for Port Hope police Sergeant Darrell Strongman, who headed both investigations.
Strongman seemed to lose evidence, failed to record key interviews and lacked judgment and objectivity in resisting defence requests for disclosure, MacDougall said.
The officer's approach has ``so tainted his investigation that this court cannot with confidence be satisfied that all disclosure has been made, even though Sergeant Strongman declared on the witness stand that `defence counsel has now got everything,' '' he said in a Jan. 20 ruling, a transcript of which was obtained by The Star.
MacDougall said disclosure is the prosecution's responsibility and in this case the crown seemed to delegate it to an officer who either didn't grasp the legal obligations or didn't follow instructions.
Evidence that was eventually turned over included witness statements with birth and interview dates blanked out and indecipherable police notes, which the crown refused to have transcribed until ordered to by the court.
Strongman didn't return a call yesterday.
Brendan Crawley of the attorney-general's ministry, responding on behalf of prosecutor Nancy Rae, said MacDougall's ruling has been sent to the crown law office to see if there are grounds for appeal.
Meanwhile, defence lawyer Moishe Reiter, who represents the computer technician, said his client is considering his options.
``His life has been ruined over the past six years,'' Reiter said. ``We're just not going to rush into anything.''
``I was given quite a hard time by prison staff because I had never admitted and wouldn't admit that I was guilty,'' the man said in a recent interview, adding the charges seemed to stem from a split-up with his wife.
``It wasn't a pleasant separation,'' he said.
``There were some fairly ugly scenes and words to the effect that `I don't get mad, I get even.''
The staying of the charges is only the latest twist in a bizarre case history.
At a 1994 trial, Reiter's client was convicted on three counts of sexual assault which allegedly occurred between 1980 and 1992.
But the verdict was overturned on appeal because of concerns about remarks by the judge, who described the complainant as ``not very intelligent'' and her mother as ``unattractive'' and ``obese.''
Reiter's client, meanwhile, had been released on bail before the appeal, after filing an affidavit about his illuminating conversation with the other inmate.
In an affidavit filed on behalf of the crown, which opposed bail, Strongman said the defence had full disclosure.
A second trial, ordered when the verdict was quashed, was only just under way last June when the jury had to be discharged because Reiter's client was arraigned on four charges originally laid by police, instead of the three on which he was being tried.
Reiter said had the case gone to trial, the new evidence ``would, I think, totally have discredited any crown evidence.''
If the complainant's allegations were true, he said, it would have meant her mother went ahead and married the computer technician after seeing him have sex with her daughter.
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