Wednesday, 6 April 2016

Can an accused be denied the right to cross examine a witness in court? 

A female victim of a sexual assault that took placed in Toronto, Canada was sitting in a Toronto criminal court room for the purpose of testifying against Valentine Ngoddy, a 55-year-old trained engineer living in Toronto wh0 had previously been her caretaker in her government-funded group home. He was charged with sexually molesting her when she was asleep in her bed.

Outside the courtroom, the 28-year-old complainant curled up in the fetal position on a bench. She licked the leg of her father’s pants. She tried to remove her shirt. She pretended to sleep.

She suffers from Autism and has the verbal abilities of a 5-year-old. Autism is an euro developmental disorder characterized by impaired social interaction, verbal and non-verbal communication, and repetitive behavior. Globally, autism is estimated to affect 21.7 million people as of 2013.  More victims of autism by now exist globally.

She had been buckling under the pressure of a routine visit to a Toronto court to meet the prosecutor prior to the sexual assault trial of the man accused of molesting her. During the interview the victim said that whenever Mr. Ngoddy drew closer to her, she would hyperventilate and lash out physically at him. She refused to eat resulting in her dropping 10 pounds from her 110-pound frame.

I am sure she didn’t use the word “hyperventilate” but the words she used probably implied hyperventilation.

The woman’s family believed that while there would be no case without her description of what happened in her bedroom, they also believed that she wouldn’t be able to testify about it in a courtroom. That was because they didn’t believe their daughter could endure a rigorous cross-examination without falling apart in the witness box. So they sought to ensure that she would never have to testify at the trial of her sexual abuser.

This particular case is an example, experts say, of a system that made rare accommodations for a sexual assault complainant who was unable to testify for herself. In place of the woman testifying, the following evidence was submitted to the court: a conversation she had with a daytime support worker; the videotaped police interviews; and accounts of the assault the woman wrote in childlike cursive, one of which was on the back of a weekly menu plan.

Ngoddy’s appeal lawyer, Marianne Salih raised an interesting legal point when she said after the trial, “The right to question one’s accuser is a fundamental right in criminal law. Mr. Ngoddy was unable to do so in this case.  There is a real danger of wrongful convictions in such cases.” unquote

In this particular case, Mr. Ngoddy wouldn’t be questioning the victim; it would be his lawyer who would be doing it if the complainant was in the witness box.

In the United States, the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him.” Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.

There is nothing about that particular right in Canada’s Charter of Rights and Freedoms that makes it mandatory that an accused person or his or her lawyer has the right to cross examine a witness at his trial. 

Even where the witness is unavailable, the defendant usually has a right to cross-examine the witness by some other means. The more obvious violations of the right to cross-examine witnesses are those where the defendant has never had the opportunity to cross-examine the witness at all, in any setting, or on any subject. 

I am sure that a five-year-old victim can testify as to what happened to her or him if that child was sexually molested. When one of my grandchildren was sexually molested when she was five, she was able to explain to the police what had happened to her. Subsequently the man was arrested. My granddaughter didn’t have to testify since the man admitted what he had done to her. He subsequently spent a year in jail and received three years probation.

But if my granddaughter had to testify, she would be explicit because she is very bright. She is now going to University. But the victim in this article would be a poor witness because she would break down during the cross examination. When I was practicing law, I had a six-year-old testifying on behalf of my client who was the mother of the child. He began crying and the judge let him leave the stand and said that the other testimony given was sufficient. 

I am sure that the evidence submitted in Mr. Ngoddy’s trial was sufficient. His lawyer certainly could cross examine the witnesses who had interviewed the victim.

My concern about submitting an autistic woman with the mind of a five-year-old child is that she could be convinced that she never even seen her abuser before.

The Assault

In January 2014, the woman, whom I will not be naming to protect her identity, was living in the group home with four other male residents, who also had developmental disabilities. Ngoddy was the sole caregiver on duty that night and had been working roughly two nights a week for a year,

 At four feet ten inches tall, “she is very much a little girl,” said her mother. “You think about her that night’there’s no one to help her because he’s the only one there.”

The woman’s room at the home locked from the outside to protect her privacy, but could be opened from the inside. There was however a key stored elsewhere in case of an emergency.

On January 14th, 2014, after she’d gone to bed, Ngoddy entered her room and molested her, the judge concluded after weighing the evidence at trial.
When she was interviewed later, she asked, “Why did   Mike, kiss my breasts, touch my vagina and put his penis on my body?” the woman’s daytime support worker told court the woman spontaneously told her the day after the assault while the pair were in the washroom together. (The support worker also told court she’d seen the woman call Ngoddy “Mike” a day earlier.)

Police were called and in two interviews that were nearly an hour-long. The videotaped interviews were taken at a local station in what the police call a “soft” interview room with a couch and armchairs, Toronto police detectives questioned the woman about her encounter with Valentine Ngoddy. Both videos were submitted to the court as evidence.

“Valentine touched me,” she said in the second interview, conducted two weeks after the assault.
And where did he touch you?” asks the detective.

“In the back area and in the front and in my crotch, vagina and in my bum hole, and in my bum and in my legs, and in my feet and in my arm and on my back and my hip and the spine and on the boobs and [he] kissed them,” she replied to the question.

In the days after the assault, another of the woman’s daytime support workers encouraged her to write her feelings down. As a result, two letters, written in childlike cursive, were also submitted at trial.

In one letter, which was written on the back of a weekly menu plan from the group home, the woman wrote that she was touched on two different days of the week. “Monday night touched a person in the tummy, vagina, boobs and kissed them. Tuesday night his penis [was] out.”

In the months after the routine visit to meet the prosecutor prior to the trial, the prosecutor in this case, along with criminal lawyer, David Butt, who was hired by the family, prepared to argue to have the initial conversation that the woman had about the assault in the washroom with her daytime support worker, submitted as evidence so she wouldn’t have to testify. Hearsay evidence like this is usually not admissible in court when a witness is available.

Butt who has counselled many sexual assault complainants was given standing in court to make arguments on the family’s behalf. He said,  “When the odds are stacked against you, sometimes you have to work hard to have people heard.”

The family also hired an expert psychologist to examine the woman and testify about her condition.

A special hearing (called a Voir Dire—a procedure within a trial) was held during the course of the main trial.

Toronto behavioural psychologist, Dr. Bruce Linder testified in the Voir Dire that the woman, in addition to autism, had been diagnosed with severe anxiety, obsessive compulsive and bipolar disorders, and had behavioural problems. He told the hearing that he could not “envision any circumstances whatsoever” in which she could come back into court and testify without “substantial behavioural escalations” while in the witness box.

Dr. Linder said during the hearing. “While the woman’s IQ is very low and she is limited verbally, she does have the ability to recall visual information, particularly if it was emotionally relevant to her. Like many autistic people, she can develop a preoccupation with an incident and relive it over and over again. If the woman felt comfortable and was relaxed, she might be able to tell a consistent albeit fragmented story.” unquote

Dr. Linder’s evidence had  compellingly described the devastating effects of the court visit on (the woman) and the probability of similar effects were she to testify in the case.

Justice Brewer wrote in her extremely rare decision that allowed the hearsay conversation to be entered as evidence in place of the testimony of the complainant. The judge essentially concluded the negative impact on the woman outweighed Ngoddy’s right to face his accuser at trial. Brewer also found the information the woman blurted out to her daytime support worker could be reliable because it was spontaneously uttered to a person she trusted.

The woman’s father said at Ngoddy’s sentencing. “I was very touched by the close attention the judge paid to my daughter’s realities.” He added that he felt that the case is an exception rather than the norm in a criminal justice system not designed to accommodate people with developmental disabilities. He paid Butt $50,000 for his expertise in helping the family navigate the criminal justice system and said he understands not everyone has those means.

The trial continued in September 2015 without the woman. Ngoddy’s defence lawyer, Daniel Etoh, put his client on the stand. Ngoddy testified that he had not seen the woman the night she claimed had molested her and that she had never called him “Mike.” He said that while he checked on the other residents every hour he did not have a key to her room, which was locked. He would have called for support if he needed access.

The woman’s daytime support worker testified that a key to her room was available to staff. She also said that after the assault, the complainant frequently talked about the touching (by Ngoddy) and asked: “Why did he do it?”

While the videotaped police interviews and written accounts weren’t used as evidence, Ngoddy’s lawyer Etoh, was able to use them to point to inconsistencies in the woman’s story. For example, the complainant at one point told police the assault happened on New Year’s. The extent of the touching also expanded from the initial utterance to her daytime support worker to include almost every part of her body in the second police interview and the letters she wrote.

In explaining why she found Ngoddy guilty in October 2015, Justice Brewer wrote that it “makes no sense” that there wouldn’t be a key to the woman’s room available in the case of a fire or other emergency. Similarly, it was “implausible” that the others were checked during the night but the complainant was not.

Brewer also wrote she believed that the complainant’s developmental challenges and her tendency to obsess over events explained the inconsistencies in her account.

In a victim impact statement written by the victim that was submitted to the court, along with several victim impact statements from family members and her support workers.  “Valentine abused me very bad and touched me in bad parts. It makes myself angry. He needs to [go to]  jail. ”

The trial judge said just before sentencing Ngoddy on January 14, 2016, “This was a gross breach of trust on the part of the defendant. The complainant is exceptionally vulnerable. Mr. Ngoddy knew this and took advantage of her condition.”

The judge sentenced Valentine Ngoddy, to 13 months in jail plus three years’ probation. Ngoddy is now out on bail while he appeals his conviction. Ngoddy maintains his innocence. He testified at the trial in September that he never saw the woman the night she claims he molested her. He is now appealing his conviction.

Salih, his appeal lawyer, plans to argue in the appeal that the judge failed to consider the “frailties” in the woman’s evidence, didn’t give sufficient reasons for not believing Ngoddy’s evidence and erred in using the evidence of the woman’s behaviour after the court visit as corroboration that it occurred, according to court documents.

A letter from the family’s civil attorney to Dorvict and Reena, says the family intends to sue Dorvict (the agency that provided Ngoddy to the group home run by Reena) for the “devastating impact” of the assault on the woman, which has “exacerbated her pre-existing difficulties.” The letter goes on to say that the family trusts the woman’s care in the group home will “continue uninterrupted” to avoid “further emotional damage.”

In a statement, the province’s Ministry of Community and Social Services, which funds Reena and 369 other agencies in Ontario that work with roughly 42,000 people with developmental disabilities, said that staff working in group homes must have a vulnerable-sector check (an enhanced criminal record check that would also include past pardons for a sexual offence), reference checks and be trained on preventing and reporting abuse. The ministry also said there are no minimum educational requirements for staff and that it is fine to have one staff working at a time. Agencies are instead required to develop a plan for each person in their care that addresses “goals, needs and preferences. “For example, adults with developmental disabilities who are very independent in their support needs may prefer fewer developmental service workers in their homes,” the ministry statement said.

Miranda Ferrier, president of the Ontario Personal Support Workers Association, said this case is indicative of a “big-time lack of oversight” of those who work with some of societies’ most vulnerable people. (Ngoddy failed the final placement of his nursing degree so he did not graduate. He was trained as a civil engineer in Nigeria before immigrating to Canada in 2001. He recently got his real estate licence, court documents show.)

Ferrier said that she would like to see government legislation that mandates a minimum educational requirement for staff, like a developmental services degree or a personal support worker diploma. Ferrier added that there needs to be a level of professionalization, acknowledging it wouldn’t necessarily stop abuse, but would add an extra level of training and scrutiny. While having one caregiver working at a time costs less, it also makes it easier for abuse to happen

A 1991 Toronto study found up to 40 per cent of women with disabilities have been sexually assaulted or abused in some way. In 2o15, of the 370 government-funded agencies, 31 reports were filed related to suspected, alleged or witnessed sexual abuse of people with disabilities. The reports are filed regardless of where the assault took place or whom the allegations are against.

A ministry spokesperson said that they are aware police laid charges in three of those cases. The ministry does not track the outcome of the charges. It certainly should so that if a care worker applies to another home, there will be a record on file of the former abuse.

The woman’s family has retained law firm Torkin Manes to pursue a lawsuit against the agency that supplied Ngoddy to her group home, Dorvict Home and Health Care Services. After the guilty verdict in October, the woman talked about killing herself and asked her mother to hide the knives in the house, her family says.

The government-funded group home where the assault took place is run by the GTA-area Reena agency. Reena’s CEO and President Bryan Keshen said in a statement, “We deeply regret that this incident occurred.” He added  that the agency has policies, procedures and training in place to address abuse. But were they in practice when the autistic woman was sexually abused by Mr. Ngoddy?

I will keep you abreast with respect to Mr. Ngoddy’s appeal in an UPDATE when I get the findings of the appeal court.                     

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