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http://www.nzherald.co.nz/storyprint.cfm?storyID=115058
New Zealand Herald
February 3, 2000
Questions arising from Ellis case
Editorial
Some cases of criminal justice never come to a satisfactory conclusion. The
case of Peter Ellis, released from prison yesterday after serving seven years
for child abuse, promises to be one of those cases. Convicted on the evidence
of children in his care at a Christchurch
creche, Ellis has steadfastly proclaimed his innocence, even turning down
earlier opportunities for parole that could have implied his acceptance of
guilt.
Many who have studied the case are just as convinced he was wrongly
convicted, though they do not include judges of the Court of Appeal who have
twice reviewed his trial and upheld the jury's verdict. The issue turns on
evidence never put to the jury - stories told by children in taped interviews
that went far beyond the bounds of possibility. It might have damaged the
credibility of the children's usable testimony. That may not seem fair to the
person accused but it seems to be the law. The Appeal Court could not interfere. It
did, however, conclude there were issues in the use of children's testimony
that ought to be examined by a commission of inquiry. There certainly are.
Whether Ellis was wrongly convicted, the case highlights issues of general
application. The police and the courts may need to refine their rules and
procedures for gathering evidence from small children, conscious always that
infants are liable to tell adults what they think the adult wants to hear.
The task of gathering evidence of forensic standard from the very young
should be left to people especially trained for the purpose, professionals as
emotionally detached as anybody can be from a subject as appalling as child
abuse.
It is a category of crime that for too long was swept under the carpet. But
once brought properly into the open it was pursued with a zeal that sometimes
left little room for the rights of those accused. That phase is passing.
Phenomena such as recovered memory can be sensibly questioned, the use of
suggestion and anatomical devices critically reviewed. It is no longer enough
to say that "little ones do not lie" about a subject so unpleasant.
They may not lie but nor do they easily distinguish truth from imagination.
Nonetheless, they can probably sense when adult affection crosses the line of
innocence. Children's instincts, properly examined for evidential purposes,
must continue to carry weight in criminal justice. There is not much danger
that a review of the rules of evidence now would err in the opposite
direction, but the time seems right to strike a fair balance.
Inevitably, any inquiry arising from the Christchurch creche case runs a risk of
renewed trauma for the children involved, now in their early teens. Whether
they were truly abused, as the jury concluded, or came to believe they were
from persistent parental and police suggestion, as Peter Ellis and his
supporters maintain, they have been through an ordeal. One of them recanted
crucial testimony on the eve of an appeal, a development that seemed
conclusive to Ellis' supporters, but not to the Appeal Court. Should an inquiry be
ordered it should confine itself to the evidence gathered a decade ago as far
as the Ellis case is concerned and make no further call on the victims.
Nor need an inquiry dwell on their more bizarre items of taped testimony.
Since not even the prosecution treated it as credible, the only issue it
raises is whether the defence had a right to have it shown to the jury. The
question, like most to do with child psychology, is one that
non-professionals should not rush to answer. Fanciful statements that would
render an adult's testimony unreliable might not necessarily be regarded as
fatal to a child's credibility. An inquiry needs to establish whether fact
can be distinguished from fantasy for forensic purposes and how the
distinction might be explained to a jury.
Fairness may demand that such material is presented to a jury. If nothing
else in the Ellis case warrants reconsideration, it is the issue of full
disclosure.
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