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Otago Daily Times
April 8, 2004
Child evidence law key issue in Ellis review
by Murray Smith
A thorough review of the Evidence Act involving the
use of expert evidence in child abuse cases is necessary, writes lawyer
Murray Smith, a United Future MP who is a member of Parliament's justice and
electoral select committee presently considering a petition in the Peter
Ellis case.
The circumstances surrounding the Christchurch Civic Creche case and Peter
Ellis's subsequent trial are at present before Parliament's justice and
electoral select committee.
Although the petition headed by Dunedin author Lynley Hood and National Party
leader Don Brash merely asks for a royal commission of inquiry into the case,
the call has largely emanated from Mrs Hood's book A City Possessed and, in
particular, her assertion at the beginning of the book that she is convinced
no-one involved in the Christchurch Civic Creche, and particularly Mr Ellis,
committed any offence.
The justice and electoral committee, in a media release on September 18,
2003, made it clear that it was neither its role nor intention to inquire
into Mr Ellis' guilt or innocence, as it is not a judicial body.
Nevertheless, implicit in the petition's request is the belief that a
miscarriage of justice may have occurred, resulting in an innocent man being
found guilty.
The issue, therefore, arises as to whether the case for there having been a
miscarriage of justice is satisfactorily made out, i.e. whether Mr Ellis was,
in fact, innocent. To the extent that the petitioners are relying on Mrs
Hood's book to establish that innocence, in my view, despite the implications
of the author's introductory statements, the book falls well short of proving
that innocence "beyond reasonable doubt".
To be able to conclude that Mr Ellis was entirely innocent, Mrs Hood would
have had to show that he could not possibly have committed even the most
minor of the offences for which he was convicted: namely, those involving
touching. Her belief in that regard seems to be based on three factors. One,
which she repeats several times throughout the book, is that "because of
the layout of the creche and the way it functioned, the abuse could not have
happened".
Second, she places considerable weight on the fact that there had been no
recorded complaints from the children of any improper behaviour (although
some of the children said they did complain) or evidence of any trauma.
The third appears to be on the basis of her contact and discussions with Mr
Ellis and his actions (for example, in refusing parole) by which he has
persuaded her of his complete innocence.
All of these factors, however, are capable of contrary explanations that Mrs
Hood simply doesn't explore.
It is not credible to suggest that the level of supervision at the creche was
such that not one of those offences could have occurred. Mr Ellis would have
had to be under constant, minute-by-minute supervision and it is clear from
the evidence of the creche staff that he was not.
In fact, the jury were presented with a lot of evidence that suggested that
the less extreme offences, at least, could have occurred very easily and that
Mr Ellis might have committed them. Clearly, based on that evidence, there
was plenty of opportunity for him to commit at least the majority of the
offences that the jury convicted him of.
It is notable that the jury had to compare the credibility of the children's
evidence (in the face of the defence's strong attacks on it) against the
credibility of Mr Ellis' denials. In regard to 16 of the charges, the jury
believed the children.
While these factors mean that, in my view, the book falls well short of
proving "beyond reasonable doubt" that he was innocent, they are
insufficient of themselves to have proven him guilty in a criminal trial. It
is in that context that serious issues do arise that are worthy of further
examination.
The issue in this case boiled down to how the children's evidence should be
interpreted and whether the evidence had been contaminated by suggestion,
coercion or persuasion.
The evidence given by the children was reinforced by the evidence of the
Crown's expert witness, Karen Zelas, as to the nature of young children's
evidence and, in particular, that the children's behaviour was
"consistent with that of sexually abused children of the same age group
as the complainants". In regard to both the children and the expert
witness, the evidence was given in a manner consistent with the provisions of
the relevant legislation and court rules, and it is here that I believe the
real concerns lie.
Mrs Hood seems to consider that the key factors leading to Mr
Ellis'convictions were: a belief that sexual abuse was rife in Christchurch, the
judge's rulings on the admissibility of evidence, a minor slip-up in Mr
Ellis'oral testimony, and a fervent belief on the part of police, social
workers and Crown counsel that he was guilty.
It is my view, however, that the most influential aspect of the case was the
prosecution's expert evidence and its persuasion of the jury as to the
reliability of the evidence presented to them.
During my practice as a lawyer, I was involved with a number of cases where
the winning or losing of a case came down to which side had the
best-qualified and most credible expert. In this case, it seems clear that Mr
Ellis' counsel had difficulty in obtaining an expert of the credibility (and
arguably quality) of the Crown's expert, and that the defence's
Australian-imported witness failed to match her performance.
Given the information that the jury had, principally, the children's
evidence, the expert's opinions relating to it, and the ancillary matters
concerning Mr Ellis' opportunity, character and actions, it was quite
reasonable in my view to expect the jury to enter convictions in regard to a
number of the offences. The fact that only two of the convictions related to
what I have described as more extreme allegations suggests that the jury took
a very cautious approach in dealing with the evidence. They rejected a
substantial number of the allegations made by the children.
Accordingly, the failure in the Ellis case, if there was one, hinges on the
legislative provisions relating to the giving of child evidence and expert
testimony on that evidence. In other words, the problem lies with the
legislation, not with the court's processes. It is, therefore, not surprising
that the appeals to the Court of Appeal and the judicial inquiries into the
trial have resulted in the upholding of the convictions. The Court of Appeal
and the judges conducting the inquiries were bound to follow the rules that
Parliament had laid down for the courts and the practice directions that had
evolved from those rules, and simply look at the case on the basis of whether
those rules and directives were or were not appropriately followed.
This then leads to the question as to whether the convictions would have been
entered if there had been no expert commentary on the children's evidence
and, in particular, opinions on whether the children's subsequent behaviour
was consistent or not with sexual abuse having occurred. In other words,
would the children's evidence, by itself, have been enough to convince the
jury as to Mr Ellis' guilt? That could only be ascertained by a retrial and
even Mrs Hood admits that, given the lapse of time, that option is not a
realistic one.
What is realistic, however, is the need for a thorough review of the Evidence
Act involving the use of expert evidence in child abuse cases as well as the
directions to be given to the jury in cases of child sexual abuse.
A further concern that I have relates to the manner in which child
complainants in sexual abuse cases are interviewed. Mrs Hood justifiably
argues that interviews of children thought to possibly have been the victims
of sexual abuse too heavily concentrate on an endeavour to obtain evidence of
abuse rather than taking a more objective approach. There is a need for the
questioning of children with a view to not only endeavouring to see whether
sexual abuse has occurred but also exploring whether any
"disclosures" of sexual abuse can be explained more innocently.
If we are to have rules that allow children's evidence to be given probative
weight without corroboration, then it may well be that one way to balance
that exception to normal evidential rules is to provide the alleged offender
with early access to the children (through a suitably qualified expert of his
or her own choice) in order to explore whether there is some innocent source
for the information or other activity "disclosed" or some other
person at fault.
In my view, it is the pursuit of these issues to which the justice and
electoral select committee should turn its attention when considering the
Christchurch Civic Creche petition.
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