A magistrate has effectively terminated the prosecution of a police officer who was accused of indecently assaulting a colleague, saying the man "lost the right to silence" when he was compelled to answer questions.
South Australia Police officer Brett Andrew Foster was granted a permanent stay of criminal proceedings against him in the ACT Magistrates Court on Friday.
Mr Foster had been before the court on three charges of committing an act of indecency without consent, following an incident that allegedly occurred when various police officers were in Canberra to participate in a basketball tournament in late 2019.
The alleged victim, also a South Australia Police officer, later complained of having been indecently assaulted by Mr Foster.
She said he had entered an en suite while she was showering and, when she tried to cover herself with a towel, attempted to kiss her.
The woman alleged Mr Foster had also sexually touched her, and forced her to do the same to him.
In his decision, magistrate Glenn Theakston said the alleged victim initially elected to have the matter dealt with by South Australia Police as a disciplinary issue.
"As part of that process, [Mr Foster] was directed and required to answer questions about the allegation," Mr Theakston said.
"He answered those questions, and two days later his answers were largely provided to the [alleged victim]. The [alleged victim] then prepared a supplementary document in response to that information."
Mr Theakston said the questions put to Mr Foster were done so in "a compulsory interview", where refusal to answer would have exposed the officer to the risk of being sacked.
"I am satisfied that those arrangements effectively compelled the defendant to answer the questions put to him," Mr Theakston said.
Eventually, in mid-2020, a decision was made to discontinue the disciplinary proceedings because it was unclear whether they could legally cover conduct that was said to have occurred outside South Australia.
A complaint was subsequently made to the Australian Federal Police, which charged Mr Foster.
While the answers Mr Foster gave under compulsion were not provided to police or prosecutors in the ACT, Mr Theakston noted the alleged victim, "a key and crucial witness" in the case, knew what he had said.
"This court cannot make directions nor design a process that would negate those unfair consequences," Mr Theaskston said, adding that the case highlighted the dangers of using compulsory examinations in disciplinary proceedings ahead of a possible criminal matter.
Mr Theakston ultimately said Mr Foster, having "lost the right to silence", could no longer receive a fair trial.
He felt he had no choice other than resorting to the "drastic remedy" of effectively terminating the prosecution.
"This may be viewed as a disappointing result, particularly when considering the social imperative to bring a defendant to trial," the magistrate said.
"However, fairness at trial is also very important and, in this case, a permanent stay is the better of two imperfect outcomes."
