|
 January 25, 2005: The Federal government
released the
first national examination of the reasons for so many wrongful
convictions in Canada. This should be required reading for every prosecutor,
cop and criminal defence lawyer in the country. News
reports
Stephen Leadbeater
'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, Tuesday, February 9, 1999
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.
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.
© 1996-1999, The Toronto
Star
Sex-assault
case thrown out after evidence suppressed
Judge assails prosecutors
and police
February 9, 1999. KIRK MAKIN,
Justice Reporter, Globe
and Mail
A judge has thrown out sexual-assault
charges against an Ontario man, describing suppression of evidence
by police and Crown officials as "an affront to fair play
and decency."
Mr. Justice Barry MacDougall
of the Ontario Court's General Division said defendant Stephen
Leadbeater was unfairly kept from knowing that the girl who complained
about him had earlier helped convict another man of virtually
identical offences.
In a bizarre quirk, the two
men convicted by her testimony met in the exercise yard of Ontario's
Warkworth penitentiary in 1994 and compared notes about their
alleged molestation of the girl when she was between the ages
of 8 and 16.
"You talk about the odd
perversities of life," Mr. Leadbeater said in an interview.
"I was just walking around getting some fresh air when this
guy said: 'I've been waiting for you to get here. We've got to
talk.'
"She said we both did
the same kinds of thing on the same type of dates, using the
same type of threats. The stories were almost identical."
Mr. Leadbeater, 36, spent seven
months behind bars. He was released on bail pending an appeal
that he eventually won. But before the start of his retrial,
Judge MacDougall threw the case out.
A transcript of his ruling
-- made orally two weeks ago -- was released yesterday. In it,
Judge MacDougall named prosecutor Nancy Rae and Port Hope Police
Sergeant Darren Strongman as the leading figures in a case he
said resulted in irreparable harm to the justice system.
The complainant first made
her allegations against Mr. Leadbeater, the son of a clergyman,
in 1993. Unknown to Mr. Leadbeater, another man, Peter Sowden,
was at the time being tried on similar charges.
(Mr. Sowden ultimately pleaded
guilty and has since been released from prison.)
Instead of immediately investigating
the second set of allegations, Sgt. Strongman told the complainant
to bide her time until the Sowden case was out of the way.
In his judgment, Judge MacDougall
described this as "a most unusual, extraordinary decision."
He said that a police officer with a month of police college
under his belt would know better, and that the move appeared
aimed at protecting the complainant's credibility.
The judge noted that over the
past year defence lawyer Moishe Reiter made repeated requests
for disclosure of information. Each request was either turned
aside or answered with partial disclosure.
Examples of unfair play highlighted
by the judge included:
A Crown assurance that Mr.
Reiter had been given all of Sgt. Strongman's notes "turned
out to be totally incorrect. When the notes were finally handed
over, they were indecipherable. There were errors in the notes,
changes to the times noted. The notes were not properly identified
as to whose notes were whose."
At Mr. Leadbeater's 1995 bail
hearing, Sgt. Strongman tried to explain the similarity of the
accusations against the two men by saying they were "close
friends at the time of the abuse." Judge MacDougall noted
that Sgt. Strongman now admits this was wholly speculative and
he had no basis for misleading the appeal court in this manner.
In one of his requests for
disclosure, Mr. Reiter misspelled the first name of a therapist
who treated the complainant. The Crown replied it was unaware
of his existence. In his ruling, Judge MacDougall said the Crown
seized upon the misspelling to give an "extremely technical
and misleading" denial of the material.
The Crown informed Judge McDougall
last spring that an entire file in the Sowden case had been routinely
destroyed. Later that day, he elaborated that the files had not
been destroyed, but that police had not located them.
According to Mr. Reiter, his
son David, a law student, told the Crown over lunch that day
that a recent Supreme Court of Canada precedent would mean the
end of the prosecution if the file had been destroyed.
Shortly afterward, it was found.
Judge MacDougall said that
in general there was "little, if any, co-operation"
from the Crown's office. "It appears that the conduct of
both the Crown and Sgt. Strongman was to create potential roadblocks
for the defence."
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