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The Christchurch Civic
Creche Case |
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I cannot overlook the considerable evidential advantage
which the legislature has conferred on the prosecution by this procedure of
evidence in chief by video. It presents the jury with the evidence which
subject only to cross examination and re-examination remains in that form. It
can never be changed. In my view every care should be taken to limit the
number and extent of diagnostic interviews once sexual abuse is either
gravely suspected or has been expressly referred to. I understand in other
cases the prosecution has relied at all times on evidential interviews where
the formalities required by the Regulations have been observed in each case
and diagnostic interviews not on video have not intruded into the process as
has happened here. There is firstly the promise to tell the truth, which in
itself is a safe-guard and a reminder to the child of the need for the
appropriate solemnity. The
Evidence Act does not specify the way in which a videotape is to be prepared,
or the way in which the interviews recorded are to be conducted. The
Regulations give the rules pursuant to s 23I of the Evidence Act, but nowhere
within the Act or Regulations are the qualifications and skills necessary for
interviewers specified. There is a general presumption that the interviewer
has the ability to judge whether the child complainant has the requisite
understanding of truth, lies and a promise as stated in reg 5(1)(c). The Court must recognise the underlying assumption that
the interviewer will be sufficiently trained and competent not to proceed
further unless she [the interviewer] makes the requisite determination. In the 1.
The undesireability of calling them "disclosure" interviews,
which precluded the notion that sexual abuse might not have occurred. 2.
All interviews should be undertaken only by those with some training,
experience and aptitude for talking with children. 3.
The need to approach each interview with an open mind. 4.
The style of the interview should be open-ended questions to support
and encourage the child in free recall. 5.
There should be where possible only one, and not more than two,
interviews for the purpose of evaluation, and the interview should not be too
long. 6.
The interview should go at the pace of the child and not of the adult. 7.
The setting for the interview must be suitable and sympathetic. 8.
It must be accepted at the end of the interview the child may have
given no information to support the suspicion of sexual abuse and the
position will remain unclear. 9.
There must be careful recording of the interview and what the child
says, whether or not there is a video recording. 10.
It must be recognised that the use of facilitative techniques may
create difficulties in subsequent Court proceedings. 11.
The great importance of adequate training for all those engaged in
this work. 12.
In certain circumstances it may be appropriate to use the special
skills of a "facilitated" [4]
interview. That type of interview should be treated as a second stage. The
interviewer must be conscious of the limitations and strengths of the
techniques employed. In such cases the interview should only be conducted by
those with special skills and specific training. In
summary, it is the interviewing practices which come into question and lead
to the interviewers being in a vulnerable position when having to demonstrate
that the requirements of the Evidence Act 1908 have been met. The interviews
can be of two types: ·
Evidential ·
Diagnostic This type of interview is not
intended to form part of the Court proceedings, and as such is not normally
videotaped. [5] The purpose of this
interview is to ascertain whether or not there is some type of problem with
the child or the behaviour of the child that necessitates further long term
therapeutic intervention. During the course of the interview should there be
disclosure of any abuse an evidential interview will be done separately. The
interviewer or therapist is unlikely to be called to give evidence although
may be asked to appear at the Court proceedings to be of assistance to the
Judge in deciding the appropriate manner or mode of the child giving
testimony: s 23D(3). The investigative techniques relied upon by the authorities
involved a number of repetitive interviews and the use of leading questions
of the children. The case illustrates the way in which a child's memory can
be contaminated [by the interviewer]. Contamination of Consciousness These dolls are often used in the questioning of very
young children. The dolls are generally not anatomically correct or even
anatomically explicit. They are generally sexually graphic. As to the use of
these dolls, Christiansen [a US Psychologist] says: "But what if the
child has not been abused? Under these circumstances the interview can be an
exercise in learning, not recall. Here is this person, the interviewer, who
wants something from him. His mother or father wants something from him as
well. They want him to say something, to tell them about something. The child
is bound to try to figure out what they are after, especially since it is
clear that he gets a positive reaction from them when he says certain things.
If he can determine what they want him to say, they will be happy and love
him. So he listens to their questions and tries to sort it out. Playing with
dolls in certain ways also gets a good reaction. The child may even determine
that they want to tell a certain kind of story, and he invents one. They love
him for it." (The Testimony of Child Witnesses: Fact, Fantasy and the Influence of Pre-Trial Interviews [1987] 62
Washington LR 712-13) [8] There are
many opponents to the use of anatomically correct or detailed dolls within
the interview stage, as it, in the views expressed, increases the chances of
contamination: [9] ... No matter what they are called [correct or detailed],
they are a serious contamination to any meaningful psychiatric examination.
Unless the child has been previously evaluated by one of these
"validators", it is most likely that the child has never seen such
a doll before. The child cannot but be startled and amazed by such a doll. I would
however question the validity of these criticisms when applied to the ...Do not use anatomically correct dolls unless the child
is totally unable to describe the abuse. Do not introduce the dolls until
specific sexual abuse has been mentioned. The dolls can then be used to
clarify body parts and also what happened, eg where people were sitting,
touching, etc. Dr Karen
Zelas, New Zealand Specialist Child Psychiatrist, also advocates caution in
the use of anatomically correct dolls in interview situations because of the
comments of those against their use. In the case of R v Ellis (1993) [11] she stated as an expert witness under s
23G: However because of the quite commonly held but uniformed
view that they [anatomically correct dolls] are suggestive I do not encourage
interviewers to use anatomically correct dolls in the first instance with a
child but to use them after a child has made a disclosure of abuse either in
the interview or where a child is then not giving that same information in
the interview or where it is clear that it is going to assist the child to
describe or demonstrate something which has occurred once the child has
indicated that it has occurred. Certainly
any use of non verbal prompts must be subject to caution and common sense on
the part of interviewers. Ongoing awareness is needed that defence strategies
used in cross examination of scrutinising interviewing techniques of these
type are well within the legal tenet of protection of both the child and the
accused from any injustice. The risks of inadvertent memory contamination are
exponentially increased where there is the involvement of an ideologically
committed "professional" or "expert" in the legal process.
[12] In these
cases these experts presume the guilt of the alleged offender, become
champions of "a cause" and thus lose all perspective and
objectivity. This of course goes against the basic tenet in law, of a person
being presumed innocent until proven guilty, and this zealousness can of
course create pressure for a child in an interview situation. Disbelievers of
the occurrence and reality of child sexual abuse would claim this form of
contamination for nearly all cases. However given the current research and
learning in this field there are now many safeguards for the interviewers and
experts to ensure this zeal does not go unnoticed and unfettered, eg most
interviewers now have independent supervision of all their work to ensure the
non contamination of their working practices. When giving evidence in R v
Ellis (1993) [13] Dr Karen Zelas explained
to the Court the concept of supervision and its necessity for interviewers
working with abused children: It involves meeting either as a group of interviewers with
me or from time to time individually with me and discussing aspects of their
work, looking at pieces of videotaped interviews they have done, particularly
with regard to technique or if they found a child difficult to communicate
with looking at how that might have been achieved more effectively. On
occasion looking at something and helping them to appraise what steps, if
any, should be recommended on the basis of that communication from the child.
The child examiner should have professional training; she
should be chosen for intelligence, and should be acquainted with the various
influences and motives that may cause a child to give mistaken or otherwise
false evidence. She may, in fact, have better knowledge of these matters, and
better insight into the mind of a child, than a lawyer, particularly one who
has little experience of children. On the whole, I do not think that lawyers
have just cause for complaint if their functions are partly transferred, in these
exceptional cases, to another kind of professional. Lawyers do not take part
in investigations by the police, why should they object to investigations by
psychologists? Glanville
Williams offers also his comments as to who are the most appropriate people
to be "child examiners" or interviewers in cases of child abuse: ... several countries have child examiners, and the
determination of qualities needed for this appointment is a straightforward
matter. Preferably the examiner would be a child psychologist (and best of
all a woman child psychologist, if the complainant is a girl). But she may
(in descending order of preference) be a psychiatrist, a police surgeon, or
at a last resort a social worker highly qualified by experience and
intelligence. [15] In the Investigators are considerably handicapped by the
requirement that all relevant information is provided by the child at one
fell swoop. Further, There is clear conflict here between the sort of interview
required for investigative purposes and the function of compiled
evidence-in-chief ready for Court. [17] Gerrilyn
Smith [18] succinctly takes this argument
further on behalf of the interviewer who is, within the one to two hour
limit, dealing with a child allegedly having suffered more than one episode
of sexual abuse and with this fear of contamination: There is often a fear expressed by the Crown Prosecution
that any further discussion of sexual abuse by the child or their carers will
somehow taint the evidence. The Memorandum
also recommends that direct or leading questions not be used by interviewers.
This would appear to make sense in terms of the evidence-in-chief
requirement, but not in terms of child development and the unease with which
children relate sensitive issues to a "stranger". The expertise
necessarily required of these specialist interviewers is increased by the
publication of this Memorandum. These steps begin with the most open, least leading form of
questioning and proceed to more specific forms of questioning as
circumstances require. The initial goal is to give the child every
opportunity to provide free narrative before other forms of questioning are
used. The next step is to use open, general questions to prompt more recall
without leading the child in any way. Following this, the child is prompted
for more specific recall, but only by requesting elaboration on details
already described or introduced in the child's earlier free narrative report.
[20] This
model is to be used in accordance with the goals of an effective interview :
(1) minimising the trauma of investigation for the child; (2) maximising the
information obtained from the child about the alleged event(s); (3)
minimising the contaminating effects of the interview on the child's memory
of the events; and (4) maintaining the integrity of the investigative
process. Interviewing, often described as a "conversation with
a purpose", is not a natural or innate ability, nor is it easy as this
definition implies. Spencer
and Flin detail studies made of effective and non effective interviewing
techniques or styles and emphasise several points, one main point being the
need for specialist training for interviewers: In a more recent study of real criminal investigations,
Aldridge and Cameron (1989) recorded and analysed videotapes of interviews
with alleged child sexual abuse victims, and concluded that, "Without
training, experienced police officers and social workers perform inadequately
on a wide range of interview behaviours". [22] The
authors make another salient point about the striking similarity between
ineffective interview questions which are leading in themselves and the
leading questions that may be asked in cross-examination. The defence
strategy is to query the interviewer on their use of leading questions, and
yet they use the same method in their questioning of the interviewers. This
is subject to criticism by psychologists and sociologists. In response to
defence counsel's question:
The studies from the beginning of this century which
support this gloomy view of the unreliability of children have now been
heavily criticised (Goodman 1984), and ... modern psychological and medical
research suggests that children are much more reliable as witnesses then
previously thought. However, legal thinking has not always kept apace with
the evolution of the social sciences [24]
. Judge
Pigot also recognised this in the Report on Child Witnesses, 1990 when he
stated: Courts still prefer to rely on the accumulated wisdom of
the past and have not absorbed or applied the fruits of modern research into
child psychology. Psychiatrists
and psychologists have shown enormous interest in the area of child
psychology, and in particular the area of children's ability as witnesses.
Scientific research studies have been carried out on this aspect of
presupposed "unreliability" of children and have proven results to
the contrary. In fact it would seem that adult witnesses are as prone to be
unreliable as children were always said to be. Studies of witnesses' free
recall have revealed that children recall less information than do adults,
but that they are more accurate in detailing the information they do recall. [25] Hence, we can speculate that if young children were to lie
about sexual abuse, it is more likely that they would deny that such abuse
occurred than fabricate a false allegation about its occurrence. [27] Free
recall of events in the past of a child in an interview, seldom provides
enough disclosure information on which to form Court testimony. [28] Free recall and general questioning elicit more limited
responses from children, than do more specific questioning techniques, but
interviewers who use the latter are then liable to criticism in that these
can be construed as "leading questions". However, there are major
differences between correctly phrased specific questions and leading
questions, differences which the lay person cannot always easily identify.
Spencer & Flin report: There is little doubt that the quality of a witness's
report is dependent on the communication skills of the interviewer. Any
specific questioning will increase the likelihood of incorrect responses and
the rate of error appears to be directly related to the complexity of the
questions posed. But even with simple sentence constructions, the power of
language is easily demonstrated, asking "Did you see a knife?" is
less suggestive than "Did you see the knife?" and even small
children may be responsive to the change from the indefinite to definite
article. (Dale et al. 1978). It is well known that leading questions can be
particularly hazardous and the risk of suggestibility. [29] and, We also know that children are more influenced by leading
questions: (a)
when being asked about descriptions of people or things, rather than
events; (b)
when they are pressed to provide additional details; (c)
when they do not have a good memory of the information in the
question; (d)
after a long delay; (e)
when the interview is stressful; and (f)
when the interviewer lacks appropriate skills.(Dent 1990) [30] The Court
of Appeal in R v Ellis [1994] stated when examining the issue of interviewing
processes in the case being flawed: As the Courts have said in a number of cases, when dealing
with young children some coaxing and guidance is necessary to bring them to a
point of disclosing abuse which many of them find embarrassing or distasteful
and would rather forget. It is unreal to expect them to behave as mature
adult witnesses and launch into their evidence with only minimal guidance in
examination-in-chief. [31] Another
area of stated unreliability in the child witness is that they, more than
adults, are highly suggestible and prone to fantasy. As recently as 1987 in
the House of Lords debate on the Criminal Justice Bill, Lord Paget, an
English lawyer stated: Children do not speak the truth naturally. In the normal
way children live so much in the world of their imagination. Another point is
the tremendous and emotional suggestibility of children. [32] Spencer
and Flin however state that: These attitudes are derived from cultural and legal
mythology. [33] Further
the research of psychologists Gudjonsson and Clark published in 1986 rightly
concludes that adults are also liable to be highly suggestible. This study
and others (Baxter 1990, Goodman and Reed 1986) point out that children and
adults are likely to be influenced by leading questions for a variety of reasons. Children need to understand that the interviewer is only
interested in what the child remembers and that the admissibility of memory
failures and memory gaps are expected. [35] In
conclusion it would appear that children, like adults, are suggestible, and
it is the skill, sensitivity and questioning techniques of the interviewer
that are essential in eliciting the truth in child witness accounts. Lawyers
however are critical of these skills and the truth thus presented in Court
and often hone in on this aspect of videotaped evidence in chief whereas: Paradoxically, they do not seem to be in the least bit
concerned about their own use of leading questions in cross-examination and
the effects this may have on the quality of the child's evidence. [36] However
Eva Smith, a legal commentator from Some of these things are so shameful to the child that it
cannot bear to relate them until a grown-up has mentioned them. Leading
questions seem a necessity making it difficult to evaluate the credibility of
the answer. Summary [1] R v H (High Court Wellington T 34/93)
Unreported 27th August 1993, 5-6 [2] R
v Seth (CA 105/92) Judgment 26 November 1992, 16 [3] Report
of Inquiry into Child Abuse in Cleveland (Home Office 1987) Chapter 12, 207-8 [4] Facilitated:
where a third person comes into the interview to provide support and clarity
of the issues involved. [5] Some
centres videotape all interviews as a matter of course. [6] Greg
Walsh, "Re-establishing balance in the criminal justice system"
(1991) LSJ 70, 72 [7] Pipe,
Gee & Wilson, ibid 26 [8] Greg
Walsh, ibid 72 [9] R
[10] Draft
Sexual Abuse Guidelines, Department of Social Welfare, Circular Memorandum
1988/171 Pt III [11] R
v Ellis [1993] 3 NZLR; Transcript trial notes p 409 [12] Goode,
"The Politics of Child Sexual Abuse in the Role of Criminal Law"
(1989) CLJ 39 [13] R
v Ellis [1993] supra n.11,419 [14] Glanville
Williams, "Videotaping Children's Evidence" (1987) NLJ 108,111 [15] Glanville
Williams, ibid, 112 [16] Memorandum
of Good Practice on Videorecorded Interviews with Child Witnesses for
Criminal Proceedings, Home Office; Department of Health, 1992 [17] Jenny
McEwan (1993) Jnl of Child law 17 [18] Gerrilyn
Smith, "Good Practice or yet another Hurdle: video recording children's
statement" (1993), 5 Jnl of Child Law 21 [19] Gerrilyn
Smith ibid, 22 [20] JC
Yuile, Robin Hunter,Risha Joffe & Judy Zaparnuik, University of British
Columbia Child Victims, Child Witnesses, Understanding and Improving
Testimony, Eds Goodman & Bottoms (1993) The Guilford Press, 99 [21] JR
Spencer & RH Flin, The Evidence of Children: The Law & Psychology,
Blackstone Press Ltd (1990), 276 [22] Spencer
& Flin, ibid, 277 [23] R
v Ellis [1993] supra n.11,386 [24] Spencer
& Flin, supra n.21,237 [25] Gail
S Goodman, Christine Aman and Jodi Hirschman, Child Sexual and Physical
Abuse: Children's Testimony in Children's Eyewitness Memory (1987 SJ Ceci, MP
Toglia and DF Ross, eds, Springer-Verlag) 12 [26] GB
Melton, "Children's Competency to testify" (1981) 5 Law & Human
Behaviour 73, 79 [27] K.Bussey,
K.Lee & E.Grimbeek, 'Lies and Secrets: Implications for Children's
Reporting of Sexual Abuse', supra n.19 at 153. [28] Margaret-Ellen
Pipe, Susan Gee, Clare Wilson, 'Cues, Props, and Context : Do They Facilitate
Children's Event Reports?' in Child Victims, Child Witnesses, Understanding
and Improving Testimony, Eds Goodman & Bottoms, 1993 The Guildford Press,
pp25-45 [29] Spencer
& Flin , supra n.21, 241 [30] Spencer
& Flin, supra n.21, 254 [31] R
v Ellis [1994] Court of Appeal CA 274/93 at 10 [32] Hansard,
October 22nd 1987, Volume 489, No 22, column 282 [33] Spencer
and Flin, supra n.21, 253 [34] Spencer
& Flin, supra n.21, 253-4 [35] Spencer
& Flin, supra n.21, 253-4 [36] Spencer
& Flin, supra n.21, 257 [37] Eva
Smith, "How to Deal with a Child's Evidence" (1989) 22 JCL 33. |
