Introduced by Samira Taghavi
I am honoured to be penning this brief foreword to the following piece by ‘Jade’. Hers is a heart-breaking account of a couple’s fight against false sexual allegations. Looking over court decisions in her husband’s torturous saga of prosecution, I was truly saddened by the gravely cruel traumatisation – and then re-traumatisation – that the State Establishment and it’s servants are very willing to see inflicted upon false complaint victims, like Jade’s husband. So I asked Jade to write about the couple’s experience. Here is part one of her two-part story ….
My husband ‘Brett’ was wrongfully convicted of historic sex offences alleged to have occurred over 40 years before. He was sentenced to imprisonment and then was in jail for six weeks before being released on bail pending his appeal. Thereafter he remained on bail for two years before his convictions were quashed with no retrial.
Brett had always had a positive view of the world. And therefore, even after being first hit with his complainant’s ever-changing narrative that made no sense and included absurd and physically impossible elements, Brett assumed this would all go away and that the police, prosecutor, judge, or at worst the jury, would apply common sense, saving us from our nightmare.
Brett’s first trial ended in a mistrial when it was found that the prosecution had failed to disclose a key document to Brett’s defence lawyer. Prosecutors have a duty to disclose all the prosecution evidence and that “mishap” meant that we then had the stress and expense of having to prepare for a new trial. There was of course no penalty imposed upon the prosecution for its breach of its duty to disclose.
Brett’s second trial lasted nine days. The complainant’s story changed before and at trial and additional charges were introduced during trial. The dates of the events alleged were changed in the wording of the charges several times to match the changes in her story. It was ascertained that the complainant had “reminded” another prosecution witness of some of the details. This was after the complainant said she had not done so, but the judge did not seem concerned about this. The complainant and the other prosecution witnesses contradicted each other many times.
As with all sexual allegation trials, the courtroom was closed to the public while the complainant gave her testimony and was also closed for the other prosecution witnesses. The complainant gave her evidence from behind a screen, so that she would not have to be “re-traumatised” by having to look at Brett.
As the details became increasingly absurd and more lies became apparent, Brett started to feel confident that he would be found not guilty. Because the courtroom was closed, I did not hear any of this directly, but I have since read the trial transcript and can see the madness of her claims. I was allowed into the room for the verdict and watched Brett’s shocked face when the jury foreperson read out guilty verdicts for all but one of the charges.
Brett was then on bail between conviction and sentencing. After he was convicted, we had family and friends that we had to tell. We also had to tell people in organisations such as banks and WINZ. Around a third of those people told us about false accusations of some type – several people spoke of having faced false sexual complaints – against themselves or family members. The idea that false allegations are “extremely rare” (as has recently been reported) is naive nonsense, I discovered.
Some three weeks into Brett’s post-conviction period on bail, one of the jurors emailed the judge to say he felt there had been a miscarriage of justice, saying:
“Basically, the jury was not able to find PROOF on any level that the charges were indeed to be of a guilty nature. There were assumptions, there were opinions, there were theories and there were witness accounts but none of these met the legal requirement for a guilty verdict and nonetheless, a bunch of guilty verdicts were delivered.
This is partly due to the pressure to produce a verdict in the remaining minutes of the final hour of Friday with the threat of more time off work, being put in a hotel together for the weekend; these things had many of the jurors force decisions through and I feel the decisions were not just.”
Brett believed that the juror’s email might help to fix things.
We went on to have a pre-sentencing meeting where Corrections staff told us that the judge wanted to know Brett’s suitability for home detention. We asked questions about prison, but they said that a prison sentence was not being considered. We both exhaled massively and started planning how we would live with Brett on home detention. We bought additional second-hand furniture for the lounge and made a list of future needs, including purchases that would make his sentence tolerable such as a large TV, Sky Sport, along with exercise equipment hireage and we planned building projects.
Two days before the sentencing Brett received the Corrections pre-sentencing report which recommended a prison sentence due to Brett’s “cognitive distortions and denial around the offending”. So, because Brett had said that he had not done what he was falsely accused of doing (and wrongfully convicted for), he was sent to prison, rather than being given a home detention sentence.
Brett was sentenced to three years in prison. I saw him being taken away. He changed out of his suit and his lawyer gave it to me. I walked several hundred metres to my car, clutching the suit, feeling like I was carrying his corpse. That evening a person in uniform turned up at my gate and asked if a ‘Brett Michael Smith’ lived there. My first thought was that they were coming to tell me that my husband was dead. And then I wondered if I had gone mad and left him behind in the court by mistake. But no, just Corrections getting a bit confused and thinking Brett had been sentenced to home detention.
Prior to this, we were a pretty average middle class couple. Now I had to learn how to navigate the prison system from the outside, while Brett had to work out how to navigate it from inside. He was threatened three times; twice by gang members for sitting at “their” table and once by a man who threatened to “thump the living daylights” out of Brett unless Brett allowed him to use his phone card.
I wrote him at least two letters every day and Brett received only some of them. He later told me he was writing to me every day, but I only received one letter in the first two weeks (and this was back when NZ Post had FastPost and daily mail deliveries).
At times he was refused paper to write on and had to find forms and write on the back of them.
Two weeks into Brett’s sentence, I received a prison visitor application form which I immediately completed. An hour after posting it, I got a text from Brett’s appeal lawyer saying that Brett had been relocated to another prison.
I had to get out a map to see where it was.
It was several hundred kilometres away.
I contacted the new prison to ask whether my visitor form would be forwarded to them.
They refused to speak to me as I was not an approved visitor. After four weeks, Brett was given the ability to make telephone calls to me. Almost six weeks after sentencing, I was finally approved as a visitor.
It is both heaven and hell to visit a loved one in prison.
I saw Brett and we got to hold hands and briefly hug. Then I drove home and cried. And cried some more and then I yelled and kicked things. A neighbour called the police who turned up and were very confused to find me the only one home.
Brett was released two days later on bail, with our appeal case now on foot – and I once again made the long trip to his second prison, but this time I got to take him home with me.
Jade’s story will continue in part two…
Samira Taghavi LLM is a criminal defence lawyer and the practice manager for ActiveLegal, a criminal defence firm that operates nationally. She is on the Auckland District Law Society Criminal Law Committee.