Introduced by Samira Taghavi
Since setting up my webpage on the Sexual Violence Bill, I have been both truly grateful for and profoundly affected by the first-hand stories that false allegation victims have shared with me. I also much appreciate all the support for the cause against the bill that has been communicated by the many who gasp at its proposals – which will generate more such false allegation tragedies. Do please visit and email me.
Again, I am honoured that ‘Jade’ chose to make contact and was willing to write of her and her husband’s draining multi-year fight against false sexual allegations. This is part two of her story (part one is here) ….
Having won bail, pending his appeal against his wrongful convictions, my husband Brett was unable to be around children, unable to travel to one part of New Zealand and unable to travel overseas. He was on the Child Sex Offender Register which involved having to contact the police every time he was away from home for 48 hours or more.
But bigger still in effect was that Brett and I then ran back into the familiar and grindingly depressing truth that the fight for his freedom was going to financially cripple us. We had spent over $200,000 on legal costs before we were broke enough to qualify for Legal Aid. My husband is self-employed and lost his main client while he was in prison for six weeks. For three years we suffered significant financial hardship. I became an expert at KiwiSaver withdrawals. When our bank and KiwiSaver accounts were empty, we had to move to borrowing from family to pay mortgage and bills.
But the financial damage was nothing compared to the damage to our mental health. I have always been an anxious person but when Brett was convicted, I moved to the top of the anxiety scale and also started self-harming. I had frequent panic attacks.
My biggest concern was that Brett would die; either by suicide, being murdered in prison or in an accident while he was in an upset state. Number two concern was that Brett would lose his appeal and go back to prison. Losing our house (and our non-rental-friendly pets) came in at number three, followed closely by Brett losing his business (and probably also his mind). And number five was me ending up in secure psychiatric care due to my inability to cope with concerns one to four.
I developed a horrible combination of insomnia and night terrors where I lie awake for an hour or more and then have horrendous nightmares and wake up soaked in sweat and with my heart racing. Until recently, this pattern repeated several times every night. I still have bad insomnia but only have nightmares two or three times a week now.
Brett had had no mental health issues until the made-up sexual complaint dropped into his life. Brett ended up in hospital on three occasions after going catatonic with no known physical cause. One evening he was very upset. He had his car key and let slip that he was going somewhere to end his life. While trying to take the car key off him, I ran aloud through all the people who would miss him if he killed himself. When I yelled, “and I’m not going to be the one to bloody tell your mother that you killed yourself”, he finally moved away from the door. I deadlocked the house with both of us inside and hid his house keys. He seemed to calm down but would not let go of the car key. I stayed up all night, checking on him every hour. The next morning, I went to wake him up and – terrifyingly – could not do so. He was still clutching the car key and did not appear to be breathing. I called 111 and they instructed me through the procedure for getting him off the bed and starting CPR. At the hospital they performed numerous tests, but found no physical issues. We spoke to a psychiatric nurse and after explaining about prison and the wrongful convictions, she said it was not surprising his body had shut down due to extreme stress.
A year after Brett was convicted, Crown Law (the prosecution) conceded there had been a miscarriage of justice. Their “concession” recommended that Brett’s convictions be quashed with no retrial on the bases that a stay should have been granted at trail and that the judge had misdirected the jury regarding the inconsistent statements of the complainant.
Two days prior to the Court of Appeal hearing there were several communications from judges which indicated that they could not understand what had happened in the District Court. That evening Brett took a knife and attempted to lock himself in the bathroom after yelling, “It is never going to end”. Luckily, the stories about people gaining super-human strength to save their loved ones are true. I took the knife off my 30kg-heavier-than-me husband and dropped it into the toilet while screaming for help. The police eventually turned up and we went to hospital.
The Court of Appeal took another year to quash the convictions with no retrial.
In addition to the more serious mental health incidents, there have been many times that Brett will wake up, not knowing where he is. I wake to him bouncing off the walls of our bedroom trying to find the door.
We were just coming right financially and getting some sense of normality back into our lives when Covid struck. The restriction on movements during lockdown were particularly difficult for someone who has been imprisoned. One day Brett started writing a document which he wanted me to keep safe in case “they” came for him. He explained to me that the allegations and following trials were set up to try and break him. This talk about conspiracy theories went on for a time until he agreed that he needed help and I once again called an ambulance.
While having his convictions quashed and finally losing the fear of a return to prison obviously improved life, it is not so simple untangling the mental health damage done by a wrongful conviction. I still live in a state of high anxiety and when anything goes wrong, I turn into a crying or yelling mess. Brett still loses his mind every now and then. Two years after having the convictions quashed, he ended up in hospital after having another catatonic episode. He still has a few really bad days where I worry that he is going to harm himself.
Both Brett and I are near obsessed with other miscarriages of justice. We read the news and social media in bed each morning looking for other cases. We have been following the proposed Sexual Violence Bill with horror as it would obviously increase the likelihood of other wrongful convictions. I understand that the aim of bill is to protect complainants’ interests, but as the law already is, Brett’s complainant’s interests were given priority over a fair trial.
In Brett’s case, the police and prosecutors accepted everything the complainant said as being true and did not question her on her contradictions and ever-changing story or the inconsistencies between the other prosecution witnesses. Three requests to stay the case based on these incongruities were declined.
The judge did not make any comment when the complainant was shown to have lied in court, nor when it was proven that she had influenced another witness to give false testimony. That we have a fair and organised ‘Justice System’ for these cases is a ‘rape-trial myth’, with the truly systemic part being pervasive disorganisation.
There were delays in disclosure from the police/prosecution. There was a document stating that the complainant had been diagnosed with Borderline Personality Disorder which Brett’s lawyer first saw towards the end of the second trial.
There was a significant document received just before the first trial as to which the police had no record of when they had received it from the complainant. If the defence had to disclose their evidence before Brett’s trial – via pretrial cross examination of the complainant – as is proposed in the Sexual Violence Bill, our disclosures would have been made before the prosecution had disclosed all of their evidence to us, increasing the unfairness to Brett even more.
Brett’s complainant stumbled many times when she was shown to be untruthful or inconsistent. But absurdly, this proposed requirement for the defence to have to disclose its case before trial would mean that in a trial like Brett’s, where the
complainant is not being truthful, she could then be coached to perfection before being later recalled at trial (because of late prosecution disclosure, say).
The other prosecution witnesses would also have months to get their stories ‘straight’. Our experience of actually seeing our evidence – that pointed to Brett’s innocence – being banned from being shown to the jury, has taught me the legal name for evidence of innocence – it’s ‘exculpatory evidence’.
The Sexual Violence Bill quite simply proposes to add to the list of exculpatory evidence that will be excluded from consideration by juries.
I have written our story to explain that innocent people do get convicted and that those miscarriages of justice destroy lives. The Sexual Violence Bill will very foreseeably make wrongful convictions much more routine. So that is our saga – so far. And the last word I give to a real hero, a truly re- traumatised victim and a survivor – my tortured husband, Brett:
“With a lying complainant, every man charged can reasonably expect a high likelihood of being convicted. The only rock-solid alibi will be if he is already in prison.”
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.