The
Christchurch Civic Creche Case |
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A New Zealand judgement
released on Christmas Eve could open the floodgates for review of hundreds of
child sexual abuse convictions entered over the last 15 years in that
country. In R v A (CA 123/04, 16
December 2004), the Court of Appeal considered whether the evidence of a
registered psychologist called at trial complied with s 23G of the Evidence
Act 1908, which governs the admissibility of expert evidence in child sexual
abuse cases. The section authorises
the giving of expert evidence on the question of whether a complainant’s
behaviour was consistent or inconsistent with that of a sexually abused child
of similar age. The expert may not give an opinion under the section as to
whether or not the child has been abused, or whether or not the accused is
the perpetrator. In R v A, the Court
suggested that “you’ve got to know how likely a behaviour is if there’s
sexual abuse, and how likely it is if there’s no sexual abuse. That’s the
proper measure of its probative value,” said Bernard Robertson, co-author of
Interpreting Evidence: Evaluating Forensic Science in the Courtroom and
chapters of Cross on Evidence. According to Robertson,
the “bald statement” that the evidence is consistent with sexual abuse is of
no probative value and is “hence irrelevant”. Commentators claim the
evidence given as to whether behaviour was consistent with sexual abuse in
the infamous Christchurch Civic Crèche case R v Ellis under s 23G(2)(c) would
not pass the standard set by R v A. “Cases such as these should be the
subject of Governor-General’s references to the Court of Appeal, because
they’re miscarriages of justice by which hundreds of people have gone to
jail,” Robertson said. University of Auckland Law
School evidence lecturer Scot Optican said that this will “never happen”.
“The Court of Appeal tends to approach such cases on an individual basis and
almost never suggests that such evidential rulings could operate
retrospectively to put hundreds of other trials at risk,” he said. “However, as with any
case, there is always the possibility of defendants bringing new appeals on
the basis of R v A and arguing that their trials were unfair,” he added. Minister of Justice
Phil Goff told NZ Lawyer, Lawyers Weekly’s sister publication, “[The case]
doesn’t recast the application of s 23G, nor does it restrict the evidence
that could be given under it. There is therefore no reason to think that it
will have any effect on other cases where s 23G has applied.” Lynley Hood, author of
A City Possessed, the multiple award-winning book on the Ellis trials said,
“If the R v A standard was used in Ellis, the case would have been laughed
out of court. If the R v A yardstick
were applied to Ellis, most, if not all of the “behavioural characteristics
of child sexual abuse” presented by prosecution expert witness Dr Karen Zelas
in her evidence-in-chief would be considered irrelevant and of no probative
value, Hood said. Zelas did not give
evidence about other possible explanations for the observed behaviours in
Ellis, Hood said. Defence expert witness, Australian psychologist Dr Keith Le
Page, argued there was a need to look at the background of the children
because other possible explanations for the observed behaviours should be
considered. According to Le Page,
it could not be said that behaviours were consistent with sexual abuse unless
you looked at all the other factors –“which is exactly what R v A is saying
you should do,” Hood said. But he was “attacked” by both the Crown and the
judge for going outside the provisions of s 23G. When the comments by
the Crown and the judge in Ellis on Le Page’s concerns are compared with the
Court of Appeal’s comments in R v A on the need to explore other possible
explanations for the observed behaviours in allegedly abused children, “one
is bound to conclude that the jury in Ellis was seriously misled on this
point,” Hood said. |