A judge has taken the rare action of awarding some legal costs to the defendant in a criminal case.
The case involved a supposed incident that took place between two children — the accused, 13, and the alleged victim, six. A charge of sexual assault, however, was dismissed following a trial in December 2013. A couple of months later, Rosellen Sullivan, lawyer for the defendant, filed an application for costs.
In February 2013, the alleged victim’s mother was discussing with her four-year-old son an incident that occurred at daycare in which the boy and another child showed each other their private parts.
The six-year-old girl overheard and told her mother that the 13-year-old boy and she had touched each other’s private parts.
The girl was examined by a pediatrician and the results were normal. The mother also filed a complaint with the Royal Newfoundland Constabulary.
The boy made his first court appearance in May 2013 and pleaded not guilty. A trial was scheduled for August 2013, but was delayed until the following December.
“Between May 7, 2013, when the date for trial was set and August 5, 2013, it would be expected that the investigation would have been completed, disclosure given, and the Crown’s preparation for trial would have concluded. This did not happen and on a balance of probabilities I find that the defendant’s Charter rights were breached by the failure of the Crown to act reasonably to see that the case would be ready for trial by the date scheduled,” Youth Court Judge Lois Skanes noted.
“The matter was ultimately called for trial on December 10, 2013, and (the alleged victim), who was by this time seven years old, testified. There were numerous difficulties with the evidence of (the alleged victim), perhaps the most serious of which was her expressed lack of recall of the events actually occurring. Defence counsel indicates that at the conclusion of (the child’s) testimony she asked the Crown to discontinue the prosecution, however, the Crown declined to do so.
“As I see it, it was not the failure to discontinue the prosecution after (the alleged victim) testified, but the failure of the prosecution generally to consider the evidence it had to tender and the prospects for conviction and to properly prepare for trial, if there was to be one, before the trial commenced, which cumulatively leads inexorably to the conclusion that there was a marked and unacceptable departure from the reasonable standard of care expected of the prosecution.”
The Crown had intended for the pediatrician to provide expert opinion evidence that her observations, which included a small tear in the hymen, were consistent with penetration by an object.
This continued to be the Crown’s position despite the fact that the doctor had indicated in her report that the examination, which included the identification of a tear, was normal. At trial, the evidence was not qualified as “expert.”
The girl also had a longstanding history of urinary tract infections, according to her medical records.
Among the problems that emerged about the girl’s evidence was a jealousy of her younger siblings and that after she overheard the conversation between her mother and brother and told her own story, she had her mother’s full attention for several hours.
“Additionally, at trial there was an allegation by (the girl of) penetration by (the boy’s) penis. This had not been said before and it seemed that the story was expanding over time,” the decision states.
The costs awarded to the defendant related to duplicated trial preparation and for testimony from two expert witnesses.