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 Wellington, said.

"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 Dunedin social worker Mavis Turnbull and the former DSW, now the Department of Child, Youth and Family Services.

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 Dunedin police district commander, retired superintendent Bert Hill, said he and other senior officers decided on June 28, 1995 that experienced police officers from Christchurch should be brought in to bring a fresh perspective to the matter and try to get a complaint from the girl "if one was forthcoming". The best people available in Dunedin had already been dealing with the matter after Mrs Turnbull reported the girl's allegations, Mr Hill said.

Peter Gibbons, a former detective senior sergeant who was appointed Dunedin officer in charge of the inquiry on July 3, 1995, said he approached the matter with an open mind, his priority being inquiries to corroborate the girl's allegations about incidents on April 13 and May 24 that year.

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 Dunedin and Christchurch, he found nothing to support her allegations, Mr Gibbons said.

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 Zealand at the time that incident was said to have happened.

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.