The person claims they were sexually assaulted in 2011 but police never laid charges against their alleged abuser. Photo / 123rf
The person claims they were sexually assaulted in 2011 but police never laid charges against their alleged abuser. Photo / 123rf
A sexual assault complainant spent years trying to extract information from the police to find out why their alleged attacker was never charged.
But instead of releasing all of the information, police drip-fed the person portions of it over a nearly six-year period in a process police now acknowledge had serious flaws.
This week the Human Rights Review Tribunal ordered the police to pay the person $50,000 and release the transcript of an interview police conducted with the alleged abuser, as well as provide reasons for why officers never laid charges against the alleged abuser.
It was primarily this transcript that the person, whose identity was suppressed by the tribunal, had been seeking for years in the hope of getting closure for two incidents they say occurred in 2011.
According to the tribunal’s ruling, the plaintiff and their alleged abuser were together at the time a sexual violation claim was made.
A second incident occurred the morning after and encompassed an allegation of indecent assault. The tribunal didn’t elaborate further on the alleged incidents in its ruling.
The complainant went to the police who said they believed the person’s story but ultimately decided not to press charges because the evidential threshold was not met.
Four years later the complainant made a Privacy Act request to the police to acquire any information the organisation held about them. Under New Zealand law anyone can request information that any organisation or company holds about them and it must be released within 20 working days.
However, two months later police hadn’t released the information and scheduled a meeting where they provided other documentation they held about the person, but nothing referencing the 2011 complaint made to police after the alleged assault.
At the meeting, the person made it clear that the decision not to lay charges had a severe impact on their mental health and they were seeking the information to assist in their recovery from the trauma they’d experienced.
The Human Rights Review Tribunal heard the case in October 2022. Photo / Jeremy Wilkinson
Over the next few months, police requested repeated extensions to the deadline and released portions of the requested information, such as witness statements taken during their investigation.
Among the missing information was a transcript of the accused’s statement to the police.
Two years later, police released a spreadsheet of information they said they’d already provided but had actually withheld.
Fast-forward another year to the end of 2019 and police still hadn’t provided the transcript. They told the complainant they were now considering the request under the Official Information Act.
In 2020 the plaintiff complained to the Privacy Commissioner about the way their request had been handled for the past four years and another year later police offered to explain at an in-person meeting why they opted not to press charges.
In March 2021 police admitted they couldn’t actually tell what information they’d released but suspected there was more documentation they had withheld.
However, they maintained they couldn’t release the transcript because it would be a breach of the alleged abuser’s privacy.
The Privacy Commissioner then referred the complaint to the Human Rights Review Tribunal which held a hearing into the matter in October 2022.
At that hearing, police argued that disclosing the transcript of the interview with the accused would have been a breach of that person’s privacy, especially since the person was not prosecuted.
Police had instead provided a “high-level” summary that didn’t specify why charges weren’t laid.
A police witness said that disclosing suspects’ statements in sexual assault cases “would be a step change from longstanding police practice and a change which has the potential to prejudice the investigation process”.
They went on to claim that releasing statements like this could have a “chilling effect” on future police investigations with defence lawyers hypothetically advising their clients to simply not co-operate with police.
Maria Dew, KC, represented the complainant at the tribunal hearing.
On behalf of her client, Maria Dew, KC, told the hearing the primary goal in having access to the transcript was to aid in her client’s therapeutic recovery, which was backed up by their counsellor.
Her evidence was that after the police decision not to prosecute, her client developed debilitating and severe mental health issues, including post traumatic stress disorder (PTSD).
The plaintiff said the information police did release to them over the years was useful in piecing together what had happened to them.
However, because police withheld information they couldn’t fully process the trauma and it has prevented the resolution of their PTSD. They also said the lengthy release of information had become a trauma in and of itself.
The tribunal said police didn’t weigh the mental health benefits in releasing the information to the person despite being explicitly told that this was the person’s objective.
“The deemed interference with the plaintiff’s privacy was in March 2016 but was followed by years of trying to access the requested information,” the tribunal’s ruling notes.
“In relation to documents provided in incremental releases (including after the hearing), there has clearly been undue delay in providing them.”
The tribunal said the police had failed to identify and assess documents in the scope of the request and exhibited a poor ability to keep track of what it had already released.
It ordered police to release a redacted version of the transcript, a list of reasons why they didn’t prosecute the alleged abuser and pay the plaintiff $50,000 in compensation.
A police spokesperson said the ruling referred to a request for personal information made eight years ago.
“Completely independent of this decision, Police has significantly changed how requests for personal information are dealt with by the organisation since the time this request was received,” the spokesperson said.
“Police always work hard to meet Privacy Act requests, and since the complaint mentioned Police have established a dedicated Information Requests team to deal with such requests.
“Police is considering the judgment and no decisions have been made at this stage about any appeal.”
The plaintiff, through their counsel, did not want to make any comment to NZME.
Jeremy Wilkinson is an Open Justice reporter based in Manawatū covering courts and justice issues with an interest in tribunals. He has been a journalist for nearly a decade and has worked for NZME since 2022.
