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The New Zealand Law Journal
February 2002
The Ellis Case
Editorial (Bernard Robertson)
The Minister of Justice
appears proud to say that he refuses to read Lynley Hood’s book A City
Possessed. This is unfortunate as there are numerous lessons to be
learned from the saga that are of value today, regardless of the issue of
Ellis’s guilt. On that issue alone, we are witnessing the kind of
establishment obstinacy and public dissatisfaction that led in Britain
to the Criminal Cases Review Commission.
The Minister shelters behind the Court of Appeal and the report by Sir Thomas
Eichelbaum, but this is not good enough. One of Lynley Hood’s achievements,
as a non-lawyer, is an astute criticism of the shortcomings of the various
methods available to review criminal convictions. Each of the reviews and
appeals suffered from some limitation, self-imposed or otherwise. A City
Possessed is the first attempt at a review of the whole case from the
investigation onwards.
The first issue obviously is whether Ellis should have been convicted. No one
who has read the confusion and contradiction displayed by the witness
statements that Hood recites can be happy that the convictions are safe. The
Court of Appeal confessed to having read only extracts of the statements, but
this is not enough to make one content with them, whereas relevant extracts
are sufficient to show that witnesses were confused, self-contradictory and
unreliable. Either Sir Thomas did not read those statements because, like
everyone else he restricted himself to the filleted evidence that the Judge
allowed in, or, with respect, his judgment is at fault.
Regardless of that issue, however, there are several systemic matters which
clearly require attention and which, it seems, require attention today just
as much as a decade ago.
Police
investigation: the investigation in the Ellis saga
suffered from a clear fault which was that it was driven by a junior officer
with a bee in his bonnet. Senior officers seem almost never to have exercised
independent judgment: they evidently regarded themselves as the heavy guns to
be wheeled out whenever the OiC needed. It is clearly inappropriate that a
multiple victim case involving serious criminal allegations, important legal
and policy questions relating to evidence and major budgetary issues should
have been conducted by an officer of the rank of Detective. Exactly the same
thing seems to have happened again in the Sotheran Dash-8 crash case
where either the Detective concerned was being used as a front to shelter the
real decision makers, or another hugely expensive and complex investigation
was conducted without any leadership from supervising officers.
Section
23G of the Evidence Act: this section is meaningless
nonsense. This is not hindsight, it was said at the time it was passed. The
section authorises the giving of evidence about whether behaviour is
consistent or inconsistent with sexual abuse. “Inconsistent” means “logically
impossible in combination with” and “consistent” simply means “not
inconsistent”. There is no behaviour that is inconsistent with sexual abuse
and so the DSAC manual instructed doctors to report all behaviour as
“consistent with sexual abuse”. This is clearly not understood by most
lawyers and police, who, surveys show, think that “consistent” means
“provides supporting evidence for”. Sadly, the Law Commission draft Evidence
Code just reiterates this nonsense verbatim. It should be repealed. The
kindest thing that can be said for those responsible for it is that they
cannot have known what they were doing.
Psychological
evidence: little psychological evidence stands up to
serious scrutiny. Psychologists have managed to con the system for years with
nonsense such as “offender profiling” which has no scientific basis whatever.
The fact is that psychology completely lacks a general theory of human
behaviour and the divisions between schools of psychology are as deep as
argument about whether the earth goes round the sun or vice versa. Few
psychologists understand the logical structure of evidence they are giving,
as surveys of numerous cases, listening to them speak on this and other
issues at seminars, and personal experience of trying to train them in
evidence-giving demonstrates. Almost no statements made by psychologists are
backed up by the population data necessary to give the evidence probative
value. The so-called “prosecutor’s fallacy” is endemic. Recently a
psychologist on television suggested that many premature births are due to
stress events in pregnancy. To prove this she interviewed mothers who had
given birth prematurely and discovered that some high proportion of them had
suffered stress events in pregnancy. This, she said, proved her theory. Much
psychological evidence in real Court cases in New Zealand and elsewhere has
been as unintelligent as this. The mystical hold that psychologists seem to
have over the legal system should be broken.
The appeal
structure: The position in a criminal appeal appears
to be this. If you are an undoubted criminal caught red-handed but you can
point to some defect in police procedure, the Court of Appeal will exercise a
power it has arrogated to itself and which Parliament never intended it to
have, to rule the evidence inadmissible and set you free. If on the other
hand, you argue that you are innocent and have only been convicted because of
misjudgments by the trial Judge and by the jury, the Court of Appeal will
refuse to exercise the power Parliament intended it to have to revisit the
conduct of the trial and the evidence available. This is not how to create
confidence in the criminal justice system.
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