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The Press
March 15, 2004
Shadow of doubt over Ellis report
by Jonathon Harper
Advice from the Ministry of Justice officials may
have meant the Eichelbaum report on convicted sex offender Peter Ellis was
flawed before it was written, argues Jonathon Harper.
A parliamentary select committee chaired by Christchurch Central MP Tim
Barnett is deliberating on whether to hold a Royal Commission of Inquiry into
the Peter Ellis case.
Peter Ellis was convicted in 1993 of sexually abusing seven pre-schoolers
under his care at the Christchurch Civic Child Care Centre. He was jailed for
seven years. Since the trial the case is rarely out of the news.
Ellis has had one High Court trial and two failed Appeal Court hearings. One of the
original complainant children, whose evidence resulted in guilty verdicts,
also retracted her allegations.
All this occurred before February 2001, when retired Chief Justice Sir Thomas
Eichelbaum completed his report for an inquiry into the case, called for
by the Minister of Justice, Phil Goff to answer the disquiet about the
strength of the uncorroborated testimony of the children in the light of how
it was gathered.
Issues of contamination and “best practice” with regard to interviewing the
child witnesses needed to be settled. The report therefore included detailed
analyses of the evidence by two overseas psychologists, Dr Louise Sas and Prof.
Graham Davies.
Eichelbaum pronounced the convictions safe, and concluded, “What must be
clear is that Mr Ellis’s case has had the most thorough examination possible.
It should now be allowed to rest.”
Given that the select committee is now considering a Commission of Inquiry,
it is clear that Eichelbaum did not provide such closure.
He had the brief in the terms of reference, given by Goff, to "seek and
evaluate opinions from at least two internationally recognised experts"
relating to the reliability of the children's evidence.
He may have been expected to obtain professional advice in the field in the
selection of those experts. There is
no evidence that he did so in the over 200 pages of documents that relate to
this issue released by the Ministry under the Official Information Act.
His choice of experts and their advice has become open for scrutiny by New Zealand
experts in the field, who suggest that Eichelbaum's conclusion that the
verdicts were safe was flawed and that the evidence for the conviction was
not gathered according to best practice.
Why it has taken the academic community so long to raise these issues and be
heard remains a mystery.
Retired Reader in psychology Dr Jim Pollard, who was on the Canterbury staff at the time of the trial,
says: “In an academic climate where political correctness flourished, most
chose to keep their heads low, despite having the knowledge and expertise to
expose fundamental weaknesses in the case against Ellis.”
Dr Maryanne Garry, of Victoria
University, last year
told the select committee: “The interviewing techniques used on the child
complainants were fundamentally flawed, even at the time they were used.
Everyone is susceptible to memory distortion, but children are especially
vulnerable."
Harlene Hayne, professor of psychology at the University of Otago,
says world-recognised memory experts "were not invited nor consulted
during the original trial. Had
they been invited to testify for the defence, Peter Ellis probably never
would have been convicted in the first place.”
Barry Parsonson, former associate professor at Waikato University and
chairman of the New Zealand Psychologist Board, says there was
"contamination" of the evidence "from external influences on
the children as well as [deficiencies in] the interviewing.”
A retired senior psychology lecturer from Auckland University,
Barry Kirkwood, presents an even more scathing rebuke: “The very idea of
looking at videotapes of the children’s evidence to decide which bits are
true, and which are not is absurd. It is identical to asking a group of
pre-schoolers if Santa is real. The evidence was contaminated anyway. The
interview analysis was like a scientist being asked to do a chemical analysis
of contaminated material. This is an oxymoron,”
Despite these assessments, Eichelbaum viewed any departures from best
practice as minor and of little consequence.
None of these New Zealand
experts were even asked to assist in the selection of overseas experts in the
field. Instead he appears to have relied
on the advice of Cornell Law professor Thomas Lyon.
Lyon was an expert nominated by the Crown Law
Office and by the Commissioner for Children, who had previously voiced strong
opinions of Ellis' guilt. Lyon's work is,
however, very controversial.
In an article in Court Review 2001, American clinical psychologist David
Martindale took issue with Lyon’s view that recent new wave studies on
suggestibility in children are one sided. Martindale found this research,
which shows children are especially prone to believing false suggestions “has
added much to our earlier understanding of memory processes.”
Lyon’s view is a minority one among
researchers in this field.
Eichelbaum met and discussed his selections with the Ministry of Justice
legal adviser Val Sim and another adviser Michael Petherick in the course of
choosing his overseas experts.
Petherick may have shared Lyon’s dislike of the ‘new wave’ research because
in an email dated May 11, 2000, he advised it was a con (as opposed to a pro)
for some experts to have “Studies (that) may be more laboratory oriented than
practical” (in relation to Gail Goodman, another researcher, and possible
expert appointee).
Eichelbaum rejected world-recognised expert Stephen Ceci along with Gail
Goodman “on the basis of their high profile and research direction.”
If this represents a deference towards the views of Lyon
on “new wave” research, then it prejudiced Ellis.
Stephen Ceci and was jointly awarded the 2003 American Psychological
Association (APA) Award for Distinguished Applications of
Psychology. The APA is the largest psychological society in the world,
and is dominated by professional psychologists.
The final choice of Dr Louise Sas, along with Davies, as an expert was
certainly one of a clinical practitioner with no obvious experimental or
scientific experience. Her work had been largely in applying and supporting
the changes in Canadian law that made convictions of child abusers easier
(accepting uncorroborated evidence, for example), and in helping child
witnesses.
In previous articles and within the Eichelbaum report she refers to
convictions as “positive court outcomes” and the accused as “offenders”. She
finds that asking leading questions is OK, because it can lead to
“disclosures”, a word she apparently preferred to the less loaded term "allegations".
Sas was not nominated by any of the parties asked to provide formal
submissions to the inquiry and there is no discussion by any of the parties
as to her suitability. She appears to
have been nominated by Ministry of Justice officials.
Not long after the Eichelbaum report, Canadian judge Paul Rivard was
unimpressed with Sas’s interpretation of a child witness who had retracted
(in the Climaco case).
Sas had said: “There are strong indices of reliability in his allegations
about sexual victimization” The judge decided the evidence was unreliable and
threw the case out before a jury could be summoned.
Eichelbaum expressed no such difference of opinion with Sas’s views within
his report.
Some of Sas’s comments in the report can be compared with official statements
from professional bodies. Sas recommends that children who make allegations
of sexual abuse should be immediately told
“they did the right thing to disclose.”
She concluded: “I did not feel that their evidence was seriously
affected and unreliable as a result of the contamination. There likely would
have been more convictions if the issue of contamination by parents had not
been raised so frequently.”
Yet the American Psychological Association 1995 position statement is,
"At this point it is impossible, without other corroborative evidence,
to distinguish a true memory from a false one."
There was no such corroboration from any adult in the Ellis case, and there
are admitted discrepancies between the children, especially as to exactly who
the multiple offenders were, for example. Some claimed Ellis drove them to
his house, but Ellis had no car and did not drive.
The American Psychiatric Association Statement on Memories of Sexual Abuse
made in 1993 would suggest the need for greater caution than Sas exhibited:
"It is not known how to distinguish, with complete accuracy, memories
based on true events from those derived from other sources."
This point was applied to some of the Ellis case evidence by American
researcher Stephen Ceci in 1995. Ellis’ lawyer Judith Ablett-Kerr passed this
statement to the Ministry’s chief advisor Sim in 2000: “A non-trivial
proportion of crèche-aged children will succumb to poor interviewing practices
of the sort employed by the interviewing in the Peter Ellis case. The bottom
line is that neither I nor any scientist can tell whether the children’s
accounts are accurate.”
The Ministry advisors also advised on another aspect of the Eichelbaum report.
Retired High Court judge Sir Thomas Thorpe provided a report in 1999’s to
review the Ellis petition for the ministry. For a long time this report was
not publicly available, although Ellis’s lawyer had access to it.
It referred to an analysis of a number of videotaped evidential interviews
presented as evidence at Ellis’s second appeal by psychologist Barry
Parsonson. Justice Thorpe had cast some doubt on the verdicts. Parsonson, for a long time associate professor
in Psychology at Waikato
University, describes
himself as “a developmental and clinical psychologist with some expertise in
the area of interviewing children".
Thorpe concluded: “If the opinions of Dr Parsonson as to the interviewing
techniques, or the views of Professor Ceci
as to the special hazards prove to have substantial support, it would
in my view be difficult to argue against the existence of a serious doubt
about the safety of the Petitioner’s [Ellis’] convictions.”
A letter from Sim to Eichelbaum in 2000 suggests that since the Thorp
report was not publicly available, it was not a document “that the Court of Appeal indicated
might more appropriately be considered by an inquiry.”
Perhaps Eichelbaum’s
task was too much to expect of just one person trained in Law. These enquiries
may need another expert to be appointed right at the start. Alternatively,
judges leading enquiries may need to realise that it is unrealistic to expect
other lawyers such as Lyon and ministry advisors to have a good overview of
another field. A body could perhaps be set up through universities to give
independent advice on appointment of scientific experts.
[Jonathon Harper has a Master of Arts degree in psychology and was assisted
in this article by Richard Christie and Dr Michael Corballis.]
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