6 days ago
Former WA Police officer Gary Edward Fitzgerald has charges of improper sexual relationship dropped
A former WA Police officer accused of having an improper relationship with a 16-year-old girl has had the case against him dropped during his trial.
Gary Edward Fitzgerald was a serving officer when he started a sexual relationship with the girl about 25 years ago, after meeting her during his policing duties.
The prosecution alleged the girl, who was over 16, could not give consent to sex because she was under his authority.
Mr Fitzgerald was charged with five counts of sexual penetration of a child over 16, under their care, supervision, or authority.
But the prosecution has been discontinued in the District Court.
Prosecutor Danya Borkowski said there had been legal discussions regarding the element of "care, supervision, or authority".
"We concluded that we were unable to establish that element to the standard of beyond a reasonable doubt," she told the court.
Judge Michael Bowden told the jury the discontinuance had been accepted by the court.
"This is a court of law, not of morality," he told the jurors.
He said it would only have been an offence if the sexual relationship was with a girl aged over 16 who was under care, supervision, or authority.
The court heard from the complainant on Monday, who had described sexual encounters in detail, including threesomes, and sex in the interview room of Fremantle Police Station.
The defence lawyer had put it to her that the sex in the police station did not happen, to which she responded: "That's completely incorrect."
She told the court the sex they had was consensual and there was a "mutual attraction" from the time they first met, which led to flirtatious phone messages, including sexual innuendo.
The pair first met when Mr Fitzgerald attended the teenager's home on duty, when her housemate was reported to have run away.
The complainant said the sexual relationship stopped when she was about 17, and "definitely" was not continuing when she was 18.
But she admitted that Mr Fitzgerald never presented himself as her "personal on-call police officer", and the sex had nothing to do with any ongoing investigation.
