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NZ
Herald
August 20, 2003
Judges blame Ellis expert
Court: A psychiatrist's evidence in a
child-sex-abuse case forces a retrial
NZPA
"We regret to
say we have reservations about aspects of Dr Zelas' evidence on this
account" - Appeal Court judges.
An eminent child
psychiatrist who helped to convict Peter Ellis has been blamed for causing a
miscarriage of justice in another sex-abuse case.
Christchurch
psychiatrist Karen Zelas was found by the Court of Appeal to have
"gratuitously" exceeded the scope of permissible expert opinion.
Multiple convictions arising from the case have been quashed and a retrial
has been ordered. Naming the alleged offender is prohibited as are any
aspects of the case that would identify him.
The reversal comes at considerable cost and embarrassment to the Crown, at a
time when Dr Zelas' conduct in the Ellis case is under close scrutiny.
Auckland University law lecturer Scott Optican
said the appeal decision was rare, but not unheard of. Other child sex-abuse
convictions had been quashed after experts were found to have overstepped the
mark.
Criticism in the appeal judgment of Dr Zelas' evidence concerned the
statutory boundaries laid out for expert witnesses.
As she did in the Crown vs Ellis, Dr Zelas in this case gave evidence for the
prosecution about the alleged abuse of several girls.
But she departed from her reading of an agreed brief of evidence to say there
was "no known prior sexual abuse" of one of the complainants.
The Appeal Court
decision said this additional comment (meant to be deleted after being
challenged by the defence) was made "gratuitously" and, as a
factual issue, fell "outside the scope of permissible expert
opinion".
"It also carries the inevitable inference of the doctor's opinion that
the present matters before the court were, in fact, occasions of sexual
abuse," the judges said.
Dr Zelas gave further evidence that it was unrealistic for a young child to
be able to accurately estimate distances or describe geographical locations -
a difficulty for one of the complainants.
"We think that comment was not so much an opinion as to [the child's]
mental capability as an apology for the quality of her evidence in certain
respects," the Court of Appeal judges said.
The judges expressed concern about "a pervasive quality of justification
for potentially challengeable aspects of the girls' evidence.
"It is, of course, essential for any expert witness to be entirely fair
and objective and to avoid the fact or appearance of being an advocate for
one side or the other. We regret to say we have reservations about aspects of
Dr Zelas' evidence on this account," the judges said.
They were concerned that Dr Zelas had, in many subtle respects, crossed the
boundary between permissible information and impermissible evaluation of the
complainants' credibility.
Together, the evidential breaches by Dr Zelas amounted to a miscarriage of
justice, the court decided.
"In all fairness to Dr Zelas, we do not suggest that the excess was
deliberate," the judges wrote.
Repeated attempts to reach Dr Zelas were unsuccessful.
Crown prosecutor Mark Zarifeh said he did not know how much the case had cost
to this point.
He could not comment on the appeal decision because of the pending retrial.
A new trial date is expected to be set in the High Court at Christchurch early next month.
The police officer in charge of the case (unnamed to observe the
sensitivities of the suppression order) said he was "gutted" by the
outcome. He felt for Dr Zelas.
"To be fair to Karen, I know she's certainly copped a fair bit of flak
in recent times, but she really is, from what we're led to believe, New Zealand's
eminent person in regard to these matters."
Dr Zelas has been criticised for her work on the Ellis case, in which she
backed the credibility of the child complainants.
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