“INEPT” police officers showed a “startling lack of investigative judgment” while preparing to prosecute an Islander for rape, a court has heard.
Several years after being convicted of raping his wife and staging an unsuccessful appeal against the verdict, the man attended a Court of Appeal hearing yesterday as part of his bid to seek leave for a judicial review of the case.
Advocate Michael O’Connell represented the applicant, whose identity cannot be reported as part of restrictions imposed by the court.
The question of consent regarding the single charge of rape was of “fundamental importance”, said Advocate O’Connell, who drew attention to what he said was a “shambolic” police investigation with several issues around evidence gathering.
The States police had been “dilatory and inept”, Advocate O’Connell said, in failing to examine the victim’s phone for around four months after she had reported that she had been raped.
An officer scanned through messages on the phone during an interview with the victim, noting some messages of potential significance, the court heard, but then returned the phone to the woman and did not analyse it until several weeks later.
Advocate O’Connell said that the forensic examination of the mobile phone was carried out at the lowest level of extraction, with the defendant and his lawyer being given the false impression that the second, more thorough level of extraction – enabling deleted messages and emails to be retrieved – had been used.
As a result of the police failings, he said, hundreds of WhatsApp messages were unavailable to the defence during the original trial and subsequent appeal, which Advocate O’Connell said were likely to have contained important evidence.
The court was also told that the police master log, which Advocate O’Connell said should be “the bedrock of an investigation”, had not been accurately and comprehensively updated.
Messages read out in court included one which made reference to the couple clashing during dinner when the woman challenged her husband over an alleged affair, demanding he “choose between your crazy wife and your psycho girlfriend”.
The incident resulting in the rape charge and conviction took place the following day, the court heard.
Advocate O’Connell said: “The failing in this case is so fundamental – the wrong extraction method has resulted in a raft of communications never seeing the light of day.
“It is inconceivable that none of these messages were relevant in a case where consent was the only issue and of such fundamental importance.”
Advocate O’Connell said there had been a “startling lack of investigative judgment” by the interviewing officer, raising wider questions about his judgment.
Completing his argument just over two hours after starting it, Advocate O’Connell concluded: “Whichever way you look there are shortcomings littered throughout this case – it was not properly investigated and I would go so far as to say it was shambolic.”
Judge James Wolffe, who presided over the hearing via videolink, said he would consider the representations made before delivering his judgment at a later date on whether judicial review would be allowed.
