Otago
Daily Times
December 13, 2000
Cannot argue plaintiff's guilt, CYFS counsel acknowledges
The question of
whether a former police officer actually abused his daughter, as she alleged,
was not "in any sense in issue", counsel for a social worker being
sued by the former officer said in the High Court in Dunedin yesterday.
In some cases, such an argument could provide a possible defence to an
allegation of malicious prosecution, Chris Mathieson,
of
"But the plaintiff's guilt cannot be argued here," he told Justice Young.
The apparent defence concession came during opening submissions for the defence
in a $200,000 civil action.
Mr Mathieson and Christina Inglis,
both of the Crown Law Office, represent
The plaintiff, represented by Judith Ablett-Kerr QC, with Chris Medlicott and Todd Stephenson, is suing the defendants for
malicious prosecution, abuse of process and misuse of a public office.
His case follows the laying of an information by DSW
in June 1995 alleging he breached a Family Court restraining order by raping
his daughter, the subject of the order. The information was subsequently
dismissed and never relaid and the girl, who had a
history of psychological disturbance, later admitted making false statements.
The girl made several allegations about being sexually molested by her father
but would not make a statement to police formally disclosing the abuse. Her
social worker, Mrs Turnbull, contacted the police a number of times, apparently
not satisfied with the action they were taking, as no prosecution had been
initiated.
Senior police officers dealing with the case gave evidence for the plaintiff,
expressing their concerns about Mrs Turnbull's perceived loss of objectivity.
They felt she had become "too close" to the case and there was a
danger of perceived pressure or coercion in respect of questioning the girl.
The former
Peter Gibbons, a former detective senior sergeant who was appointed
Neither allegation had been repeated by the girl in police interviews. He was
also asked to investigate allegations by the girl of pregnancy resulting from a
rape by her father and an abortion late in 1994 but, in spite of comprehensive
inquiries in
His inquiries into those and a subsequent allegation in November 1995 led him
to seriously question the girl's credibility. It was clear she was
"seriously disturbed" and no prosecution would have any chance of
success. He was convinced the inquiry should not be allowed to continue if it
was not factually based.
Mr Gibbons said he was conclusively able to establish an alleged indecent
assault in early 1996 was false; the girl was telling lies and her story was
"a complete fantasy". The plaintiff was out of New
In his opening submissions for the defence, Mr Mathieson
said the case raised the issue of whether a social worker and DSW should be
liable in damages for the decision to lay the information for the restraining
order breach and the steps that followed it.
With the benefit of hindsight, the decision to lay the information was an
unusual step for a social worker to take but the defence believed there were
good reasons for doing so. The girl's condition was deteriorating and it was
believed her best interests required that urgent action be taken.
The defendants were also concerned the police had not told them what action
they intended taking. Had they known an investigation was about to begin, they
would not have made the decision they did, Mr Mathieson
said.
The hearing continues today.