Lead Crown testifies in Gerald Barton case
The Canadian PressWednesday, April 09, 2014
HALIFAX - The former Crown attorney who led the case against a Nova Scotia man wrongfully convicted of statutory rape in 1970 testified Wednesday that nothing seemed out of order, even though some key files had disappeared over the years.
Gerald Barton is suing the Nova Scotia Crown for malicious prosecution and the RCMP for negligent investigation, claiming in a civil suit that he never gave an incriminating statement to police and didn't plead guilty to the crime of having sex with a female between the ages of 14 and 16.
On Wednesday, former Crown attorney Charles Haliburton testified that Barton had in fact pleaded guilty to the charge just as his trial was about to begin on Jan. 14, 1970.
Haliburton, a retired provincial Supreme Court judge, cited documents he retrieved from an old storage room in Digby, saying he had written the following note on one of them: "Guilty plea on trial."
Testifying in Nova Scotia Supreme Court, Haliburton said the notation meant Barton "went to court on Jan. 14, (1970) for a trial and he pleaded guilty instead of having a trial."
Haliburton, a former Nova Scotia MP who retired as a judge last year, said aside from the notation on his file and documents from a preliminary hearing, there is no record of the court proceedings that led to Barton's conviction.
He said a large cache of records were destroyed about 15 years ago when records at the Digby County courthouse were moved to Halifax.
Barton's lawyer, Dale Dunlop, asked Haliburton if he had removed or destroyed any files pertaining to Barton's case.
"I did not have the practice of taking things out of the files," he said. "I'm as certain of that as anything after 40 years."
Dunlop also asked if Haliburton's decision to prosecute the case had anything to do with the fact that Barton is black.
"I don't think it had any impact at all," Haliburton responded.
As well, Dunlop wanted to know why Haliburton had decided to charge Barton with having sex with a minor, even though the complainant's statement to police indicated that she had been violently raped, an assertion Haliburton did not dispute.
"It was the one (charge) that had a real prospect of conviction," Haliburton said. "It's the one that (Barton) admitted to" in his statement to police.
Earlier in the trial, Barton told the court that the statement attributed to him was a fabrication. In it, Barton is quoted as saying he had consensual sex with a 14-year-old girl at her home in Jordantown in 1969, but he testified Monday that he never spoke to any officers.
Court records show Barton spent a few hours in jail and was sentenced to one year of probation.
In January 2011, the Nova Scotia Court of Appeal admitted DNA evidence that proved Barton was not the father of the child born to the original complainant, who told police in 2008 she had lied about being raped by Barton.
The genetic tests said the brother of Barton's accuser was the father of the child. The brother was later charged with indecent assault, but the charge was dismissed in 2009. His name and that of his siblings and immediate family are protected by a publication ban.
Outside the courtroom, Dunlop was asked if it was possible that Barton's lawyer at the time, John Nichols, had advised his client to plead guilty before trial in a bid to get a reduced sentence.
"That clearly would have been a possibility, but it would be just guessing now to say that that happened," he said.
Closing arguments are scheduled for Thursday.
"I'm feeling pretty good because this is coming down to the last of it," Barton said outside the courtroom. "It makes me feel a lot better to get this off of my back."
He said he believes it is clear from the evidence that a miscarriage of justice had taken place.
"They never investigated. They never took the time. They just took the people who complained about it, they took their word. They left me out of the picture. They just threw me away."