Fathers beware. Giving your child a kiss and cuddle in public could land you in court. Laura Basham reports.
Some 300 people are enjoying hot summer days at McKee Domain near Ruby Bay as a father is at the playground with his daughters.
It is a classic Kiwi setting, with happy campers, barbecues and children playing.
Then comes something out of place, a police constable asking questions. The idyllic illusion is shattered.
Strangers claim to have seen the man, in broad daylight, behaving inappropriately with a girl.
The campers report this to the reserve caretaker who informs the police.
The allegations include kissing, rubbing her bottom and allowing the 10-year-old to rub his thigh and chest.
The flabbergasted man says he didn't do anything wrong, the daughter named as his victim says he didn't, and his wife says he didn't.
They cannot be identified for legal reasons although they would be happy to be.
The father said even as the constable questioned him at the campground, one of the three daughters jumped up and kissed him, and poked her finger through a small hole in his shirt saying "tickle, tickle".
It was an example of the type of behaviour the campers must have seen, but there was nothing wrong with it, he said.
Police did not take any action then and the family laughed about the misunderstanding, until police came knocking on their door three months later, in March last year.
Since then the police have pursued the case. Even when two justices of the peace threw it out, the police went to the High Court to get the charges relaid.
Finally, partway through the District Court trial last month, Judge Michael Behrens agreed with a defence application that there was insufficient evidence to convict, and discharged the father.
While pleased to walk free from the court, the father is disturbed at what happened.
Particularly concerning was the police refusal to take statements from independent witnesses in his support, he said.
A Wellington family, which had never met the family until camping at the reserve, only became aware of the charges in August last year. The mother then wrote to Motueka police saying she saw the events at close range and could give an impartial account.
Another couple at the domain who knew the family said it was inconceivable that anything inappropriate could have happened. It was daylight, with a large number of people around the playground, and camp sites next to it. If anything inappropriate had happened they would have intervened, the man said.
Another woman, a nurse, who was there also said the accusations were nonsense.
Yet the police did not interview these witnesses.
Defence lawyer Brett Daniell-Smith considers it poor policing.
"In my view the big problem with this case is a complete lack of objectivity from the detective who has refused to interview witnesses; she could have and should have. Instead she adopted an intransigent view.
"Had those witnesses been interviewed at the appropriate time this would not have happened.
"It's just poor policing for a very serious charge with huge implications for the family.
"If you're going to arrest somebody, lock them up and not allow them to see their children you have to have a good case. I think it was gung-ho policing."
However, there will be no formal police review.
Tasman acting district commander Detective Inspector Geoff Jago sees no need, and said yesterday he was satisfied the case was handled correctly.
"From what I am aware of this particular investigation I am comfortable with it and the decision to prosecute," he said.
It has taken 20 months for the father to be able to walk free from court.
Mr Daniell-Smith said: "It has been an extremely costly exercise in emotion and money for no result at all. The only people to benefit out of it are the lawyers."
He believes the Crown should have exercised discretion. Because of concern about a lack of objectivity he asked the police for a senior detective to review the case.
Detective Sergeant Craig Johnston, of Nelson, who did the review, said in his report in July last year that he believed the father had been correctly charged.
Police had interviewed and obtained statements from six people independent of the man and his family, and the witnesses were all of seemingly good character and had given their statements in good faith.
However, at the trial last month, the Crown witnesses' accounts varied.
At the start of the trial the father faced two charges of doing an indecent act on the girl, a child under the age of 12, but because of difficulty for the jury to be able to identify what happened in each charge, the Crown amended the indictment to eight counts.
The witnesses' accounts ranged from describing the girl as 9, wearing a dress and tall so that when she kissed the man he did not need to bend down, to another who said she was 8 or 9 and wearing shorts, and another who said the man had to lean over to kiss her.
Judge Behrens decided to discharge the father based on the inadequacy of the evidence that pointed to the girl named in the charges.
The judge said: "There is a distinct danger in this case that the Crown witnesses were somewhat carried away, perhaps, by what someone believed they saw, and possibly there was an infection that ran through the people there.
"And I do say that, because it is possibly unfair that the accused leaves the court in a sense, some might say, with having got away with it simply because the Crown could not prove who the girl was. I just make the comment that I do not think that is the case, that I think generally there is some doubt anyway about the other evidence, but I underline the fact that I do not make my decision on that view. I make my decision based on the inadequacy of the evidence that points to [the girl] as being the - what would normally be called - the complainant."
The case was halted before the defence witnesses were called - and they would have included the girl and her mother.
The girl told the Nelson Mail her father had not done anything wrong.
The charges were based on events over two days, January 3 and 4 last year.
"I wasn't even there the second day, I went to my friend's place," she said. "When he was taken away I used to cry because I miss him. I love my Dad."
The mother is now separated from the man but said she totally supported him.
"I have known him for 26 years and he has never exhibited in any way or form that suggested behaviour."
She was distraught when he was arrested, and the upset children had missed their father during the eight months he was not allowed any contact.
"One of the children thought he was dead, and another was trying to get lemons to make lemonade to pay to get her father back from the police," she said. "I don't think I can ever trust the police again.
"It's made them [the children] want to be with him more than ever because they don't know what will happen next."
The father still only has supervised access to his daughters.
He said the allegation had been a nonsense. "It's unbelievable that gossip can have such power and these people did not investigate properly or stop to have a wee think."
The man, who has no previous convictions other than two traffic offences, says he doesn't want others to go through such a horrible experience. He believes there needs to be a more inquisitorial process initially, before police lay charges.
"It has such a big impact, not just on the accused but their families and everyone around them, and they need to take a balanced look."
He believes the adversarial system does not work in these types of cases.
"Once they lay charges the process goes into place and the steamroller does not stop, and there is nobody to take a balanced, logical view and for common sense."
January 3 and 4 2011: Family visit McKee Domain, Ruby Bay, along with 300 others. Other visitors allege inappropriate behaviour between father and daughter, report to caretaker who calls police. Constable arrives and father denies any wrongdoing.
March 24: Police arrive at family home with search warrant for shirt and dress. Father taken to Motueka police station, arrested for indecent assault on 10-year-old daughter.
March 25: Father appears in court, bailed with conditions not to contact family.
June 21: Father's lawyer Brett Daniell-Smith applies for an oral evidence order to hear evidence of witnesses.
July: Lawyer asks police to review decision to charge father. Detective Sergeant Craig Johnston responds that police have six credible accounts of indecent behaviour and he believes the father has been correctly charged.
August 29: Judge Ellis grants an oral evidential order for three defence witnesses, bail conditions relaxed but father not allowed home.
September 29: After eight months father gets 1 hours of supervised contact with two younger daughters.
November 25: Oral evidence called at committal hearing at Nelson District Court. JPs rule there is no case to answer and discharge father.
March 7 2012: Police apply to the High Court at Nelson to re-lay charges, arguing the JPs have exceeded their function.
April 16: Application heard, Justice Miller agrees that the JPs were wrong and trial date set for October.
July 11: Judge Bruce Davidson declines application from father's lawyer for a discharge, saying it is up to a jury to decide.
October: Jury trial, Crown re-lays charge with eight counts of indecent assault. After the father has given evidence, the father's lawyer applies for him to be discharged saying there is insufficient evidence, and the identity of the complainant in each charge is uncertain. The trial is halted and none of the defence witnesses called. Judge Behrens discharges the father.
- © Fairfax NZ News
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