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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