KEY POINTS:
A 15-year-old girl who refused to testify against her father, in an indecent assault case, was locked up in court cells and verbally abused by 28 men.
Her mother is outraged that a judge sent the teenager to a cell block for up to 45 minutes, where she was terrified as dozens of men hurled obscenities at her, including suggestions they should have sex.
"I was so scared," the girl told the Herald on Sunday. "I could hear prisoners talking about each other, about Waikeria prison, what they were in for... they were swearing and things like that."
The case, being heard by Justice Merelina Burnett in July, was aborted after the girl refused to give evidence. She had already expressed doubts over giving evidence - but was forced into court by a summons from the prosecution. At a fresh hearing this month her father was convicted on a charge of indecent assault against her - a charge scaled back from the original charge of sexual assault.
The mother said she had a message for prosecutor Louella Dunn and Justice Burnett: "I do not understand how any woman with family - whether it be daughters, sisters - could have put [in the cells] a 15-year-old girl who obliviously didn't want to co-operate with this whole sad, sorry situation. It is just abysmal."
University of Auckland senior law lecturer Scott Optican said the decision to place the 15-year-old in custody was "definitely unusual".
But under a new law that came into force on August 1, the judge would be bound to lock the girl up if the same thing happened now.
Under the new Evidence Act, witnesses called in criminal and civil trials had to give evidence regardless of their age or connection to the accused. If witnesses refused the judge had little option other than to hold them in contempt of court.
"Parliament has spoken reasonably clearly that everyone must testify," Optican said.
"I am not convinced we should go down the road where individual judges make individual excuses why people shouldn't testify.
"I am highly sympathetic to children not having to testify against their parents, but I think it is better to follow the mandate Parliament has set down."
The police investigation into the case began after the 15-year-old gave her mother a letter detailing two years of improper contact between her and her father.
"I believed her," the mother told the Herald on Sunday." It must've taken a great deal of courage for her to write about what her father had done to her, given it had been going on for the past two years."
When she confronted her husband, she said "he never denied what was written in the letter".
She said he told her "I never hurt my daughter" and "he gave me the impression at the time that some of it was consensual".
The police laid six charges against the father and a trial was set for July.
But the girl was adamant she would not testify against him and was forced to court with a police summons. Once in the dock, she refused to answer questions.
According to the court record, Judge Burnett told the girl it was "not satisfactory" to refuse to give evidence - and then sent her to the court cells.
The girl says she was locked up in an area which housed dozens of others awaiting court hearings, including her father. She says she was kept in custody for up to 45 minutes until lawyer Roger Laybourn could be found to release her.
On Friday the victim's father was sentenced at the Hamilton District court to 300 hours of community work, 12 months' supervision and counselling. He is also banned from having contact with anyone under the age of 16.
"[My daughter] has been treated abysmally," the mother told the Herald on Sunday. Dunn could not be reached for comment.
Judges' communication adviser Neil Billington said constitutional convention dictated that judges not discuss or respond to criticism of their rulings through the media.
He said while the judge would have ordered the girl to be detained because she was in contempt of court, the circumstances in which she was held would have been the responsibility of either police or the Department of Corrections.
'Dear mum, please don't be angry with me...'
It began with a heart-wrenching letter from a 15-year-old girl to her mother.
"I love you a lot and I'm really sorry for what I'm about to tell you, for it might hurt you but I really need to tell you this. Please don't be angry with me," she wrote.
The Waikato teenager was confronting the terrible task of telling her mother that her relationship with her father had developed in a way that would shatter the family of five.
The girl cannot be named because of the automatic protection afforded victims of sex crimes. But she and her mother have spoken out after the girl's confession led her to sit alone for up to 45 minutes in a cell beneath the Hamilton courts.
The mother went to the police two days after receiving the letter in October 2006.
Back then, it seemed a simple matter of seeking help. The mother wanted counselling for her daughter and a neighbour advised she visit police, tell them the story and ask for help.
"They were always very close," she said of the relationship between her husband and the 15-year-old, the middle of three children. "[The girl] would cuddle up to [her father] on the couch... [she] would love to go out with her father."
In October last year the girl wrote her letter, describing how her father began to kiss her and behave in an inappropriate way.
She told her mother it began one night after her mother and sisters had gone to bed, as she and her dad were watching television. "I was cuddling Dad but then he started touching me and kissing me inappropriately.
"I felt really bad the next day. It was really hard for me to be happy. I think to myself how could you let that happen? I am convinced there is something wrong with me. Every time Dad did it to me he would say sorry and that we were doing something special," the letter reads.
The victim told her mother she felt embarrassed and ashamed. In her letter she writes: "Please don't think I wanted this to happen. It is my worse fear for you thinking I enjoyed it."
The girl suffered through the abuse for two years, scared that if she spoke out the family would fall apart. Her parents were having marital difficulties at the time, with her mother nursing her elderly parents and raising a toddler. Meanwhile, her dad was having trouble at work. Both parents had begun drinking heavily.
On October 25 last year, a day after her daughter gave her the letter, the mother threw her husband out of the house. The next day, they visited police and two days later her husband was stopped leaving the country at Auckland International Airport.
The mother says she was told that the charges could be dropped if her daughter did not want to give evidence. They took comfort from this - and say they were surprised when police signalled the case was going ahead regardless.
Six months later the father faced six charges in the Hamilton District Court, ranging from indecent assault to unlawful sexual connection.
The girl had made it clear she would not give evidence that might have her father jailed - she says she was terrified for him. Her mother had taken legal advice and was told that a judge could imprison her as an unco-operative witness but was unlikely to do so in the case of a 15-year-old in an indecent assault case. The lawyer told the girl she could refuse to answer questions on the basis that the answers might incriminate her - a legal technique which guarded against a potential case of false complaint; common if complainants in such matters later turn out to have lied.
In court, the victim said she was asked about her father kissing her - and that was when she began to refuse to testify. "I just kept saying I did not want to incriminate myself... this went on for 10 minutes. I kept saying 'I don't want to... I don't want to incriminate myself..."'
Court records show that the judge, Merelina Burnett, told the girl: "It is not satisfactory under the circumstances to say you are refusing to give evidence."
She was then sent to the cells. She told the Herald on Sunday: "I was very upset, I didn't think it was going to happen. They took me into the cell area where there is a hall and cells on each side. I was in my own cell but there were about 28 other men.
"They were saying 'Hey girl, come here. You're hot.' When I wouldn't look at them they'd say I was a bitch. I was frightened. I was angry. I was angry at why they did that to me."
Bizarrely, the victim's father was in the same cell block.
When a lawyer finally came to release her, her mother said her daughter was "absolutely terrified".
"She was flushed, she was tearful, I've never seen her like that before... shaking. We just hugged each other. We just couldn't believe it."
The trial was aborted and the serious charges of unlawful connection were dropped. The victim's father was later charged with indecent assault. On Friday he was sentenced to 300 hours of community work and 12 months' supervision and ordered to undergo psychological assessment.
He is also banned from contact with children under 16 without the permission of a probation officer.
On the day of the sentencing, the girl told the Herald on Sunday she still loved her father.
"I think my father has already been punished because he doesn't have us any more or his home and he doesn't have his daughters or wife any more. So, basically that's punishment."
The mother and daughter say their experience with the judicial process has left a scar.
The girl is on anti-depressants and sleeping pills and hasn't been to school for months.
The mother said she knows that what happened with her daughter was wrong. "I've always instilled in her that it is not her fault. It never will be."
But she maintains it was right for her daugher not to have given evidence. "It would've been hard for her to live with that. She would have felt accountable for everything."
