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Father cleared of sexually abusing daughter after 10 years in court

Tapes of daughter's testimony were erased by court officials

A father has been cleared of sexually abusing his three-year-old daughter after a decade of protesting his innocence before the criminal courts.

“They did it to hurt me…I don't know what I could have done differently,” the man said when asked about his 10-year legal ordeal.

The now 38-year old man’s ordeal began in March 2006 when the girl, during a regular visit to his Gozo home, complained that she felt unwell and insisted on going back home to her mother. At the time, the couple were going through separation proceedings.

Back home with her mother, the child allegedly appeared silent and distant, reluctant to speak up, only stating that “Daddy was very careful.” The girl later allegedly spoke of a “doctor game” involving “ripped underwear”, “scissors”, a “naughty pink nail” and a “tickle.”

It was only in October, some seven months later, that the mother reported her suspicions to police, who began investigations and arrested the man in December 2006.

Criminal proceedings were instituted in June 2007, with the man charged with having allegedly defiled his daughter and having held her against her will. Twenty-five witnesses were summoned to give evidence, with the daughter, who was four years old at the time, as the prosecution’s star witness.

The child had told the magistrate of the “silly doctor game” and the “tickle” which she described as “horrible.” The girl testified via video conference link from the magistrate’s chambers, in the presence of her mother and a court-appointed child psychologist.

Her testimony was suspended, never to be resumed, since eventually pending the proceedings, the mother packed her bags and left the island for good, taking the child with her.

The mother had 71 pending criminal cases against her when she left Malta, all of which were put off indefinitely following her departure.

In a 113-page judgment, magistrate Joseph Mifsud, who was assigned the case in June 2015, highlighted several shortcomings in the judicial process which had a direct bearing upon the merits of the case.

The court deplored the “unnecessary delay” caused not only by the numerous witnesses and voluminous records of the particular case, but even through shortcomings in the system itself and a general “inertia to change.”

Quoting juridical sources, the court observed that “significant delay” could affect “the ability of a child to give intelligible answers to questions about the offence.”

Having to rely on 1034 pages of transcribed evidence and other documents could never replace the assessment of individual witnesses and their body language by the magistrate tasked with delivering judgment, the magistrate wrote in his judgement.

This was particularly relevant in the case of young children, who are easily influenced and whose “body language must necessarily be taken into consideration,” the court remarked.

Allegations of child abuse within the context of a personal separation were to be handled with greater caution. The court could not rely on suspicions or conjectures but only on proven facts.

The court also criticised the “legally incorrect” approach adopted by the prosecution, which had effectively denied the defence the right of cross-examining the main witness. This right was irretrievably lost when the child was taken away from the country for good.

To make matters worse, the audiovisual recordings of the girl's testimony had not been preserved but had, after the lapse of two years, been deleted so that the tapes could be re-used. The court expressed its dismay at this, noting that reviewing the recorded testimony of the four-year old would have been very important in this case.

Computers belonging to the accused had yielded no material related to child abuse, and a Child Protection Unit manager had testified that the man’s home was filled with photos of his daughter and examples of crafts projects the two had completed together.

These were all “positive things, beautiful things appropriate for the girl,” the court was told.

A clinical psychologist working for Appoġġ told the court that despite various sessions with the affected parties, she could still not form a definite opinion. In fact, she had recommended that the father ought to have been allowed supervised access to his daughter. If the allegations turned out to be false, the man would have been wrongly deprived of his daughter, the expert had concluded.

These allegations had been sparked off when the accused's wife had discovered that the man was visiting online chat sites for cyber sex, a fact which he himself frankly admitted even when testifying in court.

Bearing in mind that the accused's declarations “had always been consistent”, the court concluded that the prosecution had failed to produce sufficient evidence to prove the accusations beyond all reasonable doubt. It therefore cleared the accused of the charges made against him.

Lawyers Stephen Tonna Lowell and Joseph Giglio were defence counsel.

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