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The opportunity has been missed for the
Court of Appeal to use the Governor-General's reference procedure to look at
certain problematic cases afresh R v Ellis (CA 120/98, 14 October 1999,
Richardson P, Gault, Henry, Thomas and Tipping JJ) Peter
Ellis is innocent/Peter Ellis is guilty: in terms of convincing anybody
either way, the Court of Appeal was on a hiding to nothing as views are so
entrenched. The writers will spare you their own views on that issue.
Nevertheless the 48 page decision is a good read. What it lacks in boldness
it makes up for as an exposition of the idea that everything is all right -
juries can cope with whatever is thrown at them in the way of contrary views
on all aspects of child abuse allegations, investigations, interview
techniques and trials. The Court's view of themselves is that the resolution
of the appeal was achieved by adopting a "principled approach" that
being a constrained view of the powers and jurisdiction provided by a s 406
Governor-General's reference. Peter
Ellis was convicted following jury trial in 1993 on 16 counts of sexual
offences against children who attended the Christchurch Civic Creche where he
worked. On appeal in 1994, three counts against one complainant [complainant
"A"] were quashed after her retraction but the appeal was otherwise
dismissed. There then followed two applications to the Governor-General that
resulted in the Governor-General referring the remaining 13 convictions to
the Court of Appeal for hearing and determination under s 406(a) of the
Crimes Act. The five grounds stated in Ellis' reference were substandard
interview techniques and practices, retractions, contamination, a trial
ruling on collateral issues, jury bias and the Crown's failure to disclose
certain material. The wording of the reference is included in the case. The
Court of Appeal began with jurisdiction. Section 406(a) of the Crimes Act
provides that the Governor-General in Council may refer a question of
conviction to the Court of Appeal. It is a statutory power that is separate
and potentially additional to the general appeal right contained in s 383 of
the Crimes Act 1961 and the prerogative of mercy. However the Court stressed
that a s 406 reference could only be approached as a (second) appeal with all
the limitations that flow. First,
on reference, the Court is not required to re-adjudicate any ground of appeal
that has already been heard and disposed of on the merits through the
exercise of a general appeal right unless a new matter has come to light
making reconsideration of that ground necessary or desirable. To hold
otherwise, the Court reasoned, would mean that s 406 confers a power to
direct the Court to rehear any appeal ad infinitum. But since s 406 says
"(may refer) at any time if he thinks fit, whether or not that person
has appealed ...", other interpretations are available. Second,
the Court stressed that the new hearing is confined to matters raised in the
reference: The fundamental enquiry is
whether taken individually or collectively the grounds of appeal demonstrate
that there has been a miscarriage of justice, requiring one or more of the
convictions to be set aside. (7) Third,
despite a Governor-General's reference the new appeal is subject to the same
restrictions as to the introduction of evidence as any other appeal: the function of the Court, indeed its only
jurisdiction, is to treat the reference as an appeal brought pursuant to the
Crimes Act 1961. The practice of the Court as regards the reception of fresh
evidence is therefore applicable, subject to the reservation ... "that
the Court should be given information of the considerations which have caused
the Governor-General in Council to make the reference". If as would
invariably be the case the appellant wished to rely on the material placed
before the Governor-General, an application for leave to adduce fresh
evidence is required. (7) The
normal rule is that fresh evidence will not be received unless it is shown to
be new or fresh in the sense that it was not available at the trial. The rule
will not be rigidly enforced if to do so might lead to injustice, or the
appearance of injustice. The reason for the restriction is that: it is an appeal from a finding which has
already gone through the full trial process, and not simply a re-run whether
on the same basis, or on a difference one later perceived as being better
than that adopted at trial. The attainment of justice and fairness is not to
be assessed from the sole viewpoint of an accused or a convicted person. (10) In
this instance, the appellant's failure to make application to adduce fresh
evidence threw into sharp relief the need to restrict and control evidence
adduced on appeal: regrettably the
appellant's argument throughout contained references to and reliance on
material which was not properly before the Court and had not been the subject
of any application for its reception. Included were documents .... unproved and untested as to
reliability. This approach has caused a measure of concern. The Court was
urged to accept and pay regard to all the material "in the interests of
justice". How the interests of justice are furthered by a failure to
adhere to established rules and basic principles applicable to both the trial
and the appellate processes was not made clear. The Court's function has not
been helped by the fact that the new evidence now properly before it in the
form of expert opinion is based in part on what we have described as unproved
and untested material. …. Of concern
also, is that selective material was made available to the experts .... The
value of the evidence must therefore be assessed in the light of those
matters. The primary purpose of expert evidence in a situation such as the
present is to demonstrate the existence of problems affecting the children's
credibility which were not known or adequately appreciated at the time of
trial. It can also be of assistance in then assessing whether overall there
has been a miscarriage. It is not simply a supplement to the trial evidence,
neither is it legitimate for the experts to express opinions as to actual
credibility _ a temptation which has not been entirely
resisted in the affidavits. (11) In
respect of those grounds stated in the reference which had been the subject
of determination on appeal in 1994, the Court of Appeal focused on the
two-stage inquiry as to whether any of those matters needed reconsideration. That
is, was there new evidence and, if so, did it justify interference with the
verdicts? The Court concluded that most of the material relied upon was not
new or fresh as it was available at trial or the general ideas were available
or it had been the subject of appeal in 1994. Other material was of limited
use given the function of the Court. For example, the appellant sought to
adduce a number of articles, reports and commentaries on the problems
associated with child complainant evidence. The Court held that: It
is impossible, and in our view it would be inappropriate, to attempt to
undertake a comprehensive analysis of [that material] with a view to reaching
a conclusion on some particular aspect of relevance to the present appeal.
Such an exercise is more the function of a formal commission, which is
empowered to enquire into a report upon certain defined matters. This Court
is not the forum for reviewing or evaluating the conclusions reached by the
various authors, some of which understandably in these difficult and
constantly developing areas are conflicting. (12) But
what is the practical utility of that? A Royal Commission is an elephantine
procedure and clumsy as a vehicle for investigation of individual grievance. The
appellant sought to adduce the academic material in support of an argument
that, since Ellis' appeal in 1994, empirical research has advanced and the
results of that research throw into question some of the assumptions that
informed established practice and techniques for interviewing child
complainants at the time that the evidence was taken from the child
complainants in this case. The Court's view was that the change of opinion
was not marked and there could not be said to be any consensus on the issue
among the experts - that division being evidenced by the divergence of
opinion amongst the expert opinions immediately before the Court. The Court
believed that the same criticisms could have been and were levelled at the
interviews at depositions, at trial and on appeal. In other words,
"we've been through all this before". The concerns that moved the
Governor-General in Council did not concern the Court. The
Court also dismissed the suggestion that situations, like the Civic Creche
case, characterised by mass allegations of sexual abuse hold special dangers
for the accused. The Court acknowledged that multiple allegation cases call
for care because the number of complainants increases the opportunities for
contamination in the recognised way. In its view, the essential issue remains
the credibility and reliability of the evidence of the complainants.
Contamination risk is one matter to be taken into account for that purpose
but the evidence of child complainants in mass allegation cases is not
inherently unreliable. On
the other hand, it would be wrong to believe that the Court didn't consider
lots of the submissions. Anyone interested in the child sex allegation trial process will find a
detailed compendium of the problems of the interview process under 14
headings over 12 pages. Not
all passages are as well thought out as others. My personal favourite is: It
is not appropriate to speculate what a jury may have done had A's retraction
been known at the time of deliberation, or had A's retraction been given at
trial. The former would in any event be a meaningless exercise because it
involves taking into account something which had not happened. (38) But
such hypothetical consideration is routinely undertaken in various areas of
the law from cases on wills to contract. All new evidence and events
considered on appeal "had not happened", yet. But surely it is
appropriate to consider how that would have affected the jury in as much as
it can be gleaned from jury questions and various verdicts on various counts. The
Court of Appeal approach to the Governor-General's reference has been widely
described as restrictive rather than expansive. The opportunity has been
missed for the Court of Appeal to use the Governor-General's reference
procedure to look at certain problematic cases afresh with a genuinely new
eye and greater developing understanding. The child sex abuse trial, and the
mass allegation trial in particular, has swept the common law world.
Tragedies have resulted and Courts have learned some hard lessons in their
(ie the Courts and associated processes) vulnerability to public hysteria and
false science. Eternal vigilance is also a principle of appellate oversight.
In this case it was opportunity for oversight of themselves, the opportunity
for peer review. The Court decided not to approach it in that way. And so it
is demonstrated yet again that jurisdiction and the interpretation of the
terms of reference of any criminal case can determine the outcome. Ellis No 2
is a case about process. |
