Recently we were involved in defending a client facing allegations of assault said to have been perpetrated on his previous defacto.
Now we have conducted many investigations ourselves in the past, and of course, seen many investigations since then as a Defence Lawyer. It is easy for an investigator to lose sight of the fundamental aim to ensure that the truth is exposed, and to contribute faithfully in the evidence collection process to ensure that Justice occurs. It is easy for one party to say something, and although false, be prepared to swear a statement to that effect and even give evidence under oath about it. Frankly it happens far too often. In he said she said cases, it is critical that investigators keep an open mind, and not fall into the trap of choosing a side, and then closing their minds to other theories. We often hear the words, ‘that is not part of the prosecution case’, as a reason not to seek and provide relevant evidence. You can’t force an investigator to pursue the truth. Of course disclosure provisions should ensure that all material is handed over, even if it helps the defence more than the prosecution. But what happens when an opportunity exists to collect evidence, or interview witnesses who may provide a very different version to the complainant. Of course it is axiomatic that if the aim is to ensure the truth comes out, that evidence should be pursued and disclosed frankly. Sadly it doesn’t always happen – and we often see evidence like CCTV being disclosed only in part (allowing the rest to be deleted), or not even attempting to acquire CCTV in the first place.
In this recent example, a courageous junior officer took the important step of acquiring the complainant’s phone (with consent) and having it analysed. Many of their colleagues may not have done so, even though there must have been concerns in the officer’s mind about the veracity of the complainant’s story. The results were compelling, showing that the complainant was misleading the authorities to say the least. The evidence ensured that a trial did not ultimately take place, and a just outcome was found.