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The
Christchurch Civic Creche Case |
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August 10 2005 Civic case – Eichelbaum report flaky submitted by Nancy Sutherland, Christchurch The Minister of Justice
Phil Goff has so far upheld the report by Sir Thomas Eichelbaum, of February
2001, over the safety of the convictions against Peter Ellis, as the last
word in the long-running saga of the Christchurch Civic ‘crèche’ case.
Despite this the Justice and Electoral Select Committee has not accepted this
entirely and has made new recommendations. Goff’s position cannot
be justifiably maintained because the sensible requirement in the Inquiry’s
terms that the case’s investigation be assessed was not performed by
Eichelbaum though the terms requested it, and the report was therefore
incomplete and therefore its reliability is in doubt. Some of the public would
probably be surprised that though Eichelbaum’s terms included a requirement
about assessing the investigation, this did not happen. The term’s apparent
meaning ended up being reassigned – deformed – so that if it denoted
anything, it was something different. Section 3.1 of the
Eichelbaum report – Terms of Reference, Interpretation – shows that
Eichelbaum interpreted the terms as originally being internally inconsistent
as to how and whether or not he had to treat the Civic case’s ‘investigation’
– though actually he used the plural investigations – as part of his inquiry.
He explained that in
the instructions, both 1a and 1b referred to two subjects – ‘the
investigation,’ and ‘the children’s interviews’ – as matters for him to
attend to. In contrast, he said, the last sub-term in 1, 1c, just referred to
interviews. On this he reported “I
consider that the omission of reference to "investigation" in para
(1)(c) was accidental,” and that he would proceed “on the basis that para
(1)(c) should be approached as if, in both places, the reference to
"interviews" was to "investigations and interviews””. He also said that the
undefined term ‘investigation’ could refer to “any and all aspects of the
Police investigation”. Then he claimed that in
their submissions no-one from Ellis’s counsel had addressed “the
investigations” in a wide sense. From this he concluded straight off that
no-one was interested in assessment of it. In reality Ellis’s
counsel in their submission for Mr Ellis did refer to the police investigation.
Eichelbaum admitted this, but discounted it, saying the submission was
“directed to Police conduct at later stages [being] alleged non-disclosure of
information”. On this he judged, with some vague grandiosity, “but on any
view such matters were outside the ambit of the Inquiry”. This narrowed his
inquiry away from what the terms’ intent apparently meant. So although Eichelbaum
had said in one place that he would approach 1(c) as if it referred to both
investigations and interviews, this became purely semantic because he just
went past this and re-focussed the inquiry. What he said on this in summary
in his interpretation was that the focus of what he termed “my inquiry” would
be on “the obtaining of evidence from the children, including the part played
by their parents and the parents of other creche children”. This refocus completely
omitted ‘investigation’ as his subject and made his other comments about the
inconsistency around the missing “investigation’ in 1(c), null and void. There is another way of
looking at the construction of the terms, and this view also relates to the
troublesome absence in 1(c) of the word investigation. In this reading,
performing what 1(c) asks is dependent on finding that the
evidence-obtainment from the children was faulty (under terms 1(a) and 1(b)).
As he did not reach the
conclusion they were faulty, he was not required to make a full treatment of
the investigation. This interpretation had an effect on the report produced,
and Eichelbaum produced no record of any engagement with the details of the
investigation phases of the Civic case. It is highly
contentious to shrink what is denoted by ‘investigation’ like this and to
make everything hinge on seeing the children’s evidence-obtainment as
pivotal. In fact what became
denoted as ‘the evidence’ by this stage was only the children’s evidence, and
this was not obtained by ordinary independent police methods, but by
specialist interviewers in an intestine of the public service, and these
matters are the subjects of the Eichelbaum report. Though the Eichelbaum
report thought they were all right, scathing criticisms sourced from New
Zealand psychologists as to the quality of the interviews have been revealed;
eg, by Jonathon Harper in Shadow of Doubt (The Press, 15/03/04, A15). At the same time Harper
showed that some such New Zealand experts were scandalously treated to
apartheid by the Inquiry. Further to this,
however, the inquiry was given no powers to research details, and its
conclusions had to be “based on the evidence given at depositions and/or
trial.” These problems and
limitations mean that anyone claiming that Eichelbaum’s report is a wide and
thorough assessment cannot be taken seriously any longer. The reports and
memoranda that Eichelbaum reviewed (as instructed) also had little on
investigations; this was further limiting. Eichelbaum said he
found it impossible to reconstruct aspects of the Civic investigation,
including a timeline, from a lack of detail or access to means to obtain
detail; another limitation to wideness and thoroughness. He seems to have
been signalling that he was somewhat constrained. Yet despite these
limitations regarding the Police investigations and having used words that
meant he ruled this area out of his ambit, Eichelbaum concluded: Aspects of the systems
set in place for the investigation could have been improved. However, that
made no significant difference to the outcome. This is very lame as it
reads, but more seriously it could by a casual reader wrongly seem to suggest
that he had properly assessed the investigation. It was also debatable
for him to decide that photos of the crèche taken during the investigation
were outside his ambit because of him being limited to evidence given at
depositions and trial, as the photos existed then but were withheld from it. As his own
interpretation of the terms was that they required him to assess the
investigations by the police, he should have done something about the fact
that him meeting any such term was inconsistent with him only being allowed
to use the evidence given at depositions and trial. Consistent with the
Inquiry saying that it would mostly work around a focus on the relevant
children’s evidence, via their interviews, the Eichelbaum report has headings
like “Contamination.” In that particular section the impression is created
that the children were believable and there was no contamination of the
essential allegations, but this leaves no explanation for how children came
to say a child died or was hung in a cage when objective evidence of either
was lacking. And those children
weren’t believed, which means the “Believe the children” mantra is being
selectively applied. If the report had
pieced together some of what happened in sequence, even if it got some wrong,
the context of the children’s wild claims would have emerged and some of the
problems in various aspects would have been exposed. That sequence would
have encompassed the investigation as the word denotes in the usual
understanding of it. Instead, the Eichelbaum
got hooked into some very subjective world-views that do not entirely reflect
reality. Professor Graham Davies
made little comment on the investigation in his expert’s report, but judged
that “cross-talk between families, against a background of persistent
accusation against a suspect” was of more concern than the cross-talk between
parents and children, or the formal interviews, but the Eichelbaum report did
not account for these points. This was remiss and made the inquiry
incomplete. Also, Eichelbaum failed
to respond to Davies’ investigation-oriented questions such as about whether
the centre’s layout was consistent with certain allegations, and whether
certain allegations that mentioned other children were corroborated by those
children. Eichelbaum wrongly
inferred that Davies’ term ‘credible evidence’ (evidence capable of being
believed) meant "reliable evidence”. He also was mistaken to say that
both experts reached the view that the children’s evidence in the conviction
cases was reliable, as Davies had stated otherwise: “I will not pronounce on
the reliability of individual children's accounts”. Eichelbaum assumed that
Davies’ statement “I do not think that cross-talk alone is sufficient to
explain the similar accusations” to mean that certain accusations had to be
believed. This took no account of him possibly meaning that their
similarities were down to something else (eg, misinterpreted talk, films,
books, TV etc). Dr Louise Sas took
aspects of the investigation as part of her remit though whether her
qualifications to do so were good is debatable, but when assessing it, used
terminology, even for headings, such as MVMO (multi-victim multi-offender),
which contains the logical error of assuming the consequent. Davies validly
criticises the number of interviews, but in saying in the review of these
that if there was ‘one major’ weakness then it "it lay in the number"
of them, he left himself open to misinterpretation, because after all if he
had been allowed to see the data about say cross-talk between the parents, he
might have decided that was the weakness in the investigation. These faults I believe
do mean the supposed robustness of the Eichelbaum report, and its conclusions
- as supported by Justice Minister Phil Goff as to the ‘safety’ of the
convictions - have crumbled. Any new assessment
(what was asked for was a Royal Commission) needs actionable accurate
consistent broad terms conducted in the spirit of their intent, not amenable
to sabotage. It needs a generous
time-frame and a willingness to break new ground in the fields of the
assessment of sexual abuse allegations, and the deliverance of justice, in
New Zealand. |
