Andrew Marsters was represented by defence lawyer Norman George when he appeared before Justice Patrick Keane in the Avarua High Court last Friday.
The court heard that Marsters, who was initially facing four charges, now has nine separate charges of sexual nature against him and has been in custody since his arrest on September 7. It was also mentioned that further charges may be laid against the 49-year-old.
Under the Cook Islands Crimes Act 1969, some of the charges Marsters faces could see him jailed for up to seven years whilst others could see him jailed for an additional 10.
On September 9, Marsters was remanded in custody after he appeared in court before a Justice of the Peace, charged with four sexual offences on Palmerston Island against two complainants.
“Now he faces nine charges against three complainants and they are serious charges of sexual offending against children - all alleged to have happened in August 2017,” Justice Keane told the court.
The court was told on Friday that the patrol boat Te Kukupa had taken police officers to Palmerston after allegations were made that children had been the victims of numerous sexual assaults.
The defendant, a manager in the Ministry of Infrastructure Division on Palmerston, was said to have come to police attention previously on similar charges. In his application for name suppression for Marsters, George said publication of the accused’s name would inevitably lead to the identification of the victims, given the small population of Palmerston.
However, Crown Prosecutor Alison Mills contended this was not inevitable and that the protection of the children’s identity would remain secure should his name be publicised.
“The ordinary principal is that a person who appears charged with serious offences in cases of this kind, is to have his name published. One reason for this is that it can sometimes lead to other complainants coming forward,” Keane said.
“I am not suggesting this is the case here, but that simply illustrates the nature of the principal.
“In this case, the complainants and the defendant do come from the same small community and if the Crown were concerned about name suppression, I may consider suppressing his name to protect the suppression of theirs (the complainants).
But because the Crown does not support the application, the ordinary principal I consider, must apply.
“As such Andrew Marsters name can be published, but not the precise nature of the charges against the three complainants, or their ages or any details that may in any form identify them.
“The application is therefore declined,” Keane said.
“Details of the complainants and the nature of charges are to remain permanently suppressed for both the protection of the children, and as the details of the alleged assaults are “too graphic”.
Keane then moved on to consider whether or not the accused should be released until his next appearance in court.
Through his counsel, Marsters applied for bail on a series of grounds.
The first was that the accused had no previous convictions, he denied the charges and was entitled to be presumed innocent until proven otherwise.
George also told the court the accused had a responsible government position as Infrastructure manager on Palmerston and was capable of undertaking related government work on Rarotonga. This was necessary to cover the expense of hiring his defence counsel - and being in custody would affect this.
A custodial decision would affect the ability to form a defence against the charges, George added.
He also told the court that Marsters had been offered accommodation at his cousin’s home in Tupapa.
“He is able to stay with cousins in Tupapa, who are well respected and at an address distant from where the complainants are currently living,” George said.
Asked if there were any young children staying at the household, George admitted there were two children under the age of 15. However, because Marsters would be working, he would rarely be home, he said.
George added that when he was at home, Marsters would be supervised and that most often he would be out fishing, so the likelihood of children being at risk or of Marsters re-offending was minimal.
Crown prosecution opposed this and contended the children would still be at risk if the accused was released on bail.
Mills said on a small island such as Palmerston, one would have thought such offending would be minimal as the community was “close-knit”. Releasing Marsters on bail into a house where a number of children lived, would be a major risk.
“The defendant is not ‘bailable’ as of right. Whether he is granted bail lies within the discretion of the court,” Keane said
“That discretion must be exercised consistently with section 10 of the Defence Act 1999, which requires me to take into account the views held by the complainants and in particular any fears that I accept they hold.
“I must exercise my discretion so as not to impinge unduly on the right Marsters has for reasonable bail except for just cause.
“Crown opposes bail, reliant on the two other risks identified: The risk that directly or indirectly the defendant may interfere with the Crown witnesses and the risk that he might re-offend while on bail.
“The Crown contends that while the complainants remain on Rarotonga, even at a distance from the address at which the defendant seeks to reside, they are all part of the small Palmerston Island community and there may well be contact between them.
“The complaints are fearful at that prospect,” he added.
“I cannot refer to the reasons as to why the Crown advances that any further, except to say that the reasons are too graphic.
“The Crown’s concern, in short, is not so much that Marsters might interfere with the complaints and their family, but that he might make them more apprehensive and in that way affect them adversely.
“This risk, the Crown accepts, will conceivably cease when the complaints return to Palmerston island in November.
“The risk of further offending, the Crown’s further reason for opposing the bail - will, however, remain alive, even after November.
“There is no issue about Mr Marsters’ relatives who appear ed in court; they are respected members of the community who have opened their home to him while he faces these serious charges.
“Police and prosecution’s major concern is that in the household there are two young children and in the immediate neighbourhood a number of others.
“Given the nature of the charges, Marsters faces, all of which are said to have been committed on Palmerston Island in August of 2017, the Crown contends that even in a responsible, closely-managed household, the children there might be at risk - or the children in the neighbourhood equally,” Keane said.
George, however, said this was an overstated concern. He accepted that there were children in the household, but countered that Marsters would be fully occupied.
He said he was unable to comment on the risk to other children.
However, Keane said he considered the risk the Crown had identified was real.
“It is not an unknown risk in cases of this kind - even with the presumption that the individual will be supervised. A precautionary approach is almost not a variable with these cases.
“I am sure that the Marsters family, who have generously offered their hospitality would do everything to secure the welfare of the children in the household, but offending of the kind alleged here is able to happen even in responsible households.
“The Crown’s case is that the charges Marsters faces illustrate that risk. That leads me to conclude that despite the offer of hospitality - Mr Marsters ought to be remanded in custody.
“I do not see that this will handicap the preparation of his defence.
“The Crown has assured me George will be supplied the evidence before the November session, which will include transcripts of the video interviews of the children. He (the defendant) will be able to review that material even if he is in custody.
“The time to trial as I accept, is of concern, however Crown has said because of the nature of the charges the trial will be given priority.
A defended hearing is said to take place in March 2018 - and the fate of Marsters would be decided, he said.
Marsters is yet to enter a plea, it was said that after his defence receives disclosures from prosecutions a plea of guilty or not guilty will be entered – following this the accused would elect to be tried by a judge or jury.
“For the present, however, I intend to remand him in custody until the November and December session of High Court. At that time the complainants will return to Palmerston Island and that risk will cease.
“By that time, if there is an address which does not carry the risk that the present posed address does, that can be identified; the time to trial will also be more definite at this point in time,” Keane said
Marsters was remanded back in custody until his next appearance in the Avarua High Court on December 6, before a Justice from New Zealand.