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Rape charges stayed due to deleted evidence

A judge has permanently stayed criminal rape charges against two Capricorn Coast men after a police investigator deliberately deleted evidence that “could have been very relevant to their defence”.

Jake Edward Ansell and Corey John Bradbury both pleaded not guilty in the Bundaberg District Court earlier this month at the commencement of their trial to answer criminal charges that they allegedly raped a woman at Coonarr Beach on 4 August 2018.

The prosecution alleged Ansell and Bradbury were camping near the complainant woman and her friends at the time of claimed sexual assault and at a time when she was extremely vulnerable due to alcohol and cannabis consumption.

During the trial, and while the complainant woman was giving her evidence, lawyers for the pair made an application to the trial judge for a permanent stay of proceedings.

Judge Ken Barlow QC, in a just-published decision, granted the application and revealed the extraordinary reasons for terminating the trial early, discharging the empanelled jurors and ruling the charges be permanently dismissed.

“(Ansell and Bradbury), who are each charged with two counts of rape of the same (woman) on the same occasion, have, during the course of the complainant’s evidence (to the jury), made an application for a permanent stay of the proceedings against them, on the ground that evidence has been lost which could have been very relevant to their defence,” Judge Barlow said.

“In fact, the loss of the evidence was a deliberate decision of the investigating officer which (Ansell and Bradbury) … submit, has caused them substantial prejudice.

“As well, (Ansell and Bradbury) submit that the conduct of the investigating officer in deliberately destroying forensically relevant material is an indication of some impropriety by that officer, which should weigh in favour of the court permanently staying the proceedings as being unfair to defendants.”

On 14 June, Judge Barlow delivered an ex tempore decision, a verbal decision delivered straight after the application, to permanently stay all charges against Ansell and Bradbury.

Ex-tempore decisions a regularly delivered in Queensland courts and supported with written reasons published at a later date.

Judge Barlow, in a five-page decision published yesterday, elaborated on his reasons for granting the stay.

The court had been told during the police investigation the woman’s mobile telephone was obtained for the purposes of downloading information for evidence.

“The complainant had given evidence that the investigating (police) officer had taken her phone at the time … and had later returned it to her,” Judge Barlow said.

“She thought it was for the purpose of downloading the information on the phone.

“The officer confirmed that he had taken her phone and he had conducted what is known as a Cellebrite download from the phone, which… downloads all that can be downloaded from a phone, whether deleted or not, including photographs and possibly social media.

“The officer said that, having looked through the download, he decided that there was nothing in it that was of any relevance and he therefore deleted it. That Cellebrite download is, therefore, no longer available.

“Inconsistently with that evidence, that he had downloaded the Cellebrite or used Cellebrite to download the telephone’s data … he was asked (during the trial) by the legal support officer from the Office of the Director of Public Prosecutions whether the complainant’s phone had ever been Cellebrited.

“His answer was, ‘No. Because the messages were sent via social media which at the time could not be captured by older versions of Cellebrite software … and that (the) original phone was changed to a new phone long ago as I remember asking her shortly after the assertion of the defendants in an interview that she had nudes that she was allegedly showing them at the time.

“Of course, we will never know now and the jury could never know whether or not she had such photos and had shown them to (either) defendant.

“In the defendants’ submissions, the deletion of the Cellebrite download was a deliberate deletion of forensically relevant material which has irrevocably prejudiced the fair trial in a way that cannot be overcome by any directions that I give to the jury.

“(Ansell and Bradbury) also submitted that that deliberateness tends to indicate impropriety on the part of the investigating officer which not only leads to unfairness but, if the trial were allowed to proceed and the defendants were convicted, would lead to the process of the court being brought into disrepute and public confidence in the court system being reduced.

“It also leads to the possibility of the entire prosecution in the circumstances, and I say this without any criticism of the prosecutor or the DPP, being an abuse of the process of the court.”

As a result, Judge Barlow ordered: “The proceedings on the indictment be permanently stayed.”

Read the decision.

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