Justice Michael Mettyear
Jessica Elaine Kimball, a mother of three children, aged at the time of the arrest 4 (Elijah), 2 (Emma) and 8 months (Sonia), was charged with giving a false statement to police investigators in relation to a matter involving Aaron Kimball who had been charged with indecent assault.
The children were in the care of their grandmother, Sonia Kimball, at Snug Harbour where Jessica Kimball’s brother, Aaron also lived along with Rowena Paulo a domestic help. Jessica Kimball did not live there.
On 9th March 2010, Paulo saw Aaron in close proximity to Elijah and thought something suspicious was going on and when they were on their own she asked him what had happened. Elijah made an allegation of sexual assault. The next day Paulo encouraged Elijah to repeat the allegation to his mother and grandmother. A report was made to the police and an investigation commenced.
The next day a social worker from the Department of Children and Family Service (DCFS) spoke to Jessica Kimball who told her the helper had witnessed Aaron’s sexual assault.
On the 18th March 2010 a statement was taken from the Defendant in which she said what Ms. Paulo had told her and what Elijah had said. She made it perfectly clear that she did not believe the allegation against her brother and gave reasons why. Despite this, the Crown were apparently proposing to call her as a witness in the case against Aaron.
Elijah was interviewed on the 15th March, and Aaron was arrested and interviewed on the 18th.
On the 2nd July there was a pre-trial meeting attended by Jessica, the police and counsel then representing the Crown. Jessica indicated that she had something important to say and informed them that she had given a false report before and she had encouraged Elijah and Paulo to falsely allege the indecent event had occurred.
She was interviewed, under caution, about this. She repeated everything and said she had done so in order to get her children back. She was sorry for what she did, but did not want or expect the police to be involved. She said her brother was completely innocent. Although she had never expected things to go so far, she now realised that what she had done was wrong and that she expected to be sent to prison for it. She was arrested and in due course charged.
Aaron Kimball stood trial at the beginning of 2011 and Jessica appeared for the defence. Aaron was convicted despite her evidence but on appeal his conviction was overturned. The trial judge had misdirected himself concerning the proper approach to evidence from a child as young as Elijah and the Crown did not seek a retrial.
The Prosecutor, Jenesha Simpson, informed the judge that the Crown’s stance is that Aaron is guilty of the indecent assault charge. However, Justice Michael Mettyear could not come to that conclusion as no evidence was produced to support it.
Justice Mettyear noted that in theory the Crown had a number of options. It may have been possible to lay a charge relating to the Defendant’s conduct in March 2010, or it may have been possible to charge perjury following the trial of Aaron Kimball. He said he was not criticising the Crown for not doing so as there may have been problems but he was emphasising that his attention was focused on the date of the indictment.
Ben Tonner, acting for the Defence, did not ask a single question and the judge said he was wise not to have done so. However, he submitted there was no case to answer and the judge ruled he was right. He directed a verdict of “Not Guilty”.
