ST. JOHN'S, N.L. — It’s unfathomable employees at a Conception Bay South elementary school would not report incidents of their principal abusing children if they truly believed it was happening, Robin McGrath’s lawyer told the court Tuesday.
Delivering his arguments on an application by the Crown, Ian Patey told Judge David Orr there had been ample evidence presented at trial to suggest four of the witnesses may have colluded, either innocently or in an attempt to ruin McGrath, because they didn’t like him.
“We don’t need to prove it, we just simply have to raise it as a potential issue,” Patey told the judge, saying it was up to prosecutor Shawn Patten to prove on a balance of probabilities that the witnesses’ evidence had not been tainted.
“We don’t need to prove it, we just simply have to raise it as a potential issue." — defence lawyer Ian Patey
McGrath, 50, is accused of assaulting four young students with special needs and threatening one of them while he was their principal in 2017 and 2018.
Some school staff testified they saw McGrath angrily pick up and slam down chairs while children were sitting in them, grab children by the face and lean in close to yell at them, physically restrain them, step on a child’s hand until the boy cried out in pain and douse a child with cold water until he vomited. One teacher testified McGrath asked her for a pair of scissors before holding them up to a child and threatening to “chop (their) fingers off.”
Other school staff told the court McGrath was appropriately stern with children and never abusive.
Testimony in McGrath’s trial has concluded, but before the lawyers make their closing arguments, Orr will rule on the Crown's similar fact evidence application. Essentially, Patten is asking the judge to accept that testimony has established a pattern of behaviour, allowing evidence given in relation to one specific charge to be used to infer McGrath committed similar actions in relation to the other charges.
McGrath has pleaded not guilty to all charges and was the last to testify. He insisted certain incidents of appropriate discipline had been misconstrued, while other alleged incidents simply never happened. Patten suggested McGrath’s denial in the latter is not credible because of other evidence.
“I’m putting it to the court that there’s a distinct modus operandi and there’s a repetition of that behaviour,” Patten said. “That modus operandi is that Mr. McGrath became angry and became violent on children with exceptionalities."
Patten refuted the defence’s suggestion of collusion by reminding the court a number of the witnesses had described being scared of the principal and a culture of fear in the school.
“There is no evidence of collusion, no smoking gun with evidence that they were conspiring to get Mr. McGrath in trouble,” Patten said. “They explained the delay in coming forward, if there was a delay.”
Patten asked Orr to consider why the witnesses would collude to suggest they had witnessed child abuse, but hadn't reported it, given it could have serious ramifications for them.
“There is no evidence of collusion, no smoking gun with evidence that they were conspiring to get Mr. McGrath in trouble." — Crown prosecutor Shawn Patten
Patten acknowledged a number of the witnesses had said they spoke to other school staff about what they had witnessed before finally reporting it. It was clear some of them didn’t like McGrath, one witness admitting outright she didn’t like him and didn’t want him working with children ever again.
“So what? How does that establish the air of reality to collusion? It simply shows independently that they disliked him,” Patten said. “Did she not want him working with children because she didn’t like him or because of the things she saw?”
The legal definition of collusion isn’t limited to fabricating a story, the defence said, and can include tainting evidence unintentionally by sharing it in conversation.
Patey pointed to what he called credibility issues with witnesses. Despite testifying about being afraid of McGrath, one of them readily complained about him to colleagues and had no trouble bringing a scheduling disagreement she had with him to the school district, Patey said.
One of the senior staff members who testified had even brought a cake to school for McGrath’s birthday, something Patey said was “frankly bizarre.”
“In our view, the Crown has overshot its case,” Patey said. “Hand-stepping is patently dissimilar to holding faces; holding faces is patently dissimilar to slamming chairs; slamming chairs is patently dissimilar to alleged water torture. … There is no repetition of these (alleged) acts.
What we have here is unreliable evidence proffered to establish a general propensity (for violence), and that is clearly inadmissible.”
Orr will rule on the Crown’s application Nov. 27, when a date will be set for the lawyers to present their closing arguments on McGrath’s charges.
Tara Bradbury reports on justice and the courts in St. John’s.
