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The
Christchurch Civic Creche Case |
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The select committee report into the Christchurch civic
creche case is just another stop in a slow train for justice, writes Jonathon
Harper Undoubtedly it will be at least a few more years before a
full and proper examination of this bizarre case will settle the widespread
disquiet surrounding Ellis and other victims of hysteria in New Zealand. It is still not all
over for Peter Ellis after the parliamentary justice and electoral select
committee refused to recommend an inquiry into his case last week. After two inquiries,
two appeals and two petitions, along with a significant retraction and two
years of select committee deliberations, most of the 1993 convictions against
Ellis for sexual abuse of pre-schoolers under his care in the Christchurch
Civic Childcare Centre remain. The best chance for
Ellis is now likely to be the proposed Criminal Cases Review Committee
(CCRC), according to Scott Optican, senior lecturer in evidence and criminal
procedure at the University of Auckland Faculty of Law. This may be the most
significant recommendation made by the select committee, as it allows for the
review of historical cases such as the Ellis one. Optican thinks it all
depends on how the CCRC is set up: how easy it is to get a case heard there,
the resources it will have and its powers to have its recommendations acted
on. Speaking on National Radio
last week, Lynley Hood - the author of A City Possessed, which has galvanised
much of the concern about the case - was adamant a royal commission of
inquiry is the only way problems raised by the case can be settled. She points to the need
for an independent overseas judge because everyone here is contaminated in
some way by the case, and the wide range of issues involved. Without a royal
commission of inquiry she fears that "these same people (therapists,
police, prosecutors, etc) are continuing to make the same mistakes and that
won't be identified without a commission of inquiry – and so they're just
going to go on insisting we did nothing wrong". Petition signatory
Richard Christie agrees. "The CCRC option isn't concrete. As well as
letting down the petitioners, the committee has let down justice in New
Zealand. Many, including law professors and QCs, signed the petition due to
concerns over an apparent judicial siege- mentality on this case, as did
those who signed due to concerns over Ellis's guilt or innocence," says
Christie. "Tuesday's
labelling of the report as a `cop-out' by lawyer group Just Cause illustrates
this. The `if and maybe' options proffered by the committee's report simply
do not address concerns over the total processes surrounding this particular
case." If elected to
government, the National Party is promising an inquiry, although it may not
be a full royal inquiry with an overseas judge having wide powers. The select committee
chairman, Christchurch MP Tim Barnett, estimates it will probably take two
years or more to set up a CCRC, and then more time before Ellis's case could
be heard by it. Yet he sees it as a better option than a royal commission of
inquiry for a re-examination of Ellis's guilt because it would be "more
focused and investigative" and it would be "more able to talk to
people in private". Barnett claims that the
civic children (now teenagers) could feel obliged to give evidence before a
royal commission of inquiry. The issue of victims' new legal rights may make
this process even more complicated, he says. The single remaining
legal avenue for Ellis now is said to be a specially pleaded, politically
dependent right to appeal to the Privy Council. While the select committee
recommended legal aid for Ellis to do this, and that the application not be
opposed by the Attorney-General, most commentators do not think it either a
reliable way ahead or that it could get to the heart of the issue as a royal
commission of inquiry could have. Hood thinks Ellis would
probably be told by the Privy Council that "(you have) got some good
points but you have left it too late". She points to the failure of the
leave to appeal some years ago involving a Wellington Hospital creche worker
who faced similar accusations after the Ellis case. Optican points out that
criminal cases are rarely accepted for Privy Council review and, when
accepted, rarely result in a reversal of a guilty verdict. An appeal in the
Ellis case would be even less likely to succeed, particularly since no clear
breach of fair-trial rights is evident and the case hinged largely on the
jury's conclusions regarding disputed facts. There is a glimmer of
hope from a Privy Council appeal, according to evidence law expert and New
Zealand Law Journal editor Bernard Robertson. He says the appeal
would be on the ground that the expert witness evidence (under section
23G(2)(c) of the evidence act) did not comply with the requirements laid down
by the Court of Appeal in last year's R v A case. Evidence law is under
revision and the public is entitled to make submissions on an evidence bill
before Parliament. The select committee reported that proposed changes mean
that in sexual abuse cases, the appointment of court expert witnesses will no
longer be limited to clinicians, so allowing for more scientifically based
input. In addition, the repeal
of section 23G will no longer allow the controversial and unproven theory
that some children's behaviours are "consistent" with them being
sexually abused. At the Ellis trial, the
court heard through expert prosecution witness Karen Zelas that sleeping
problems (nearly all the children had these), tantrums, toileting problems
(what parent of toddlers hasn't experienced this?), and clothing problems
(only two conviction children reported this) were all "consistent
with" them being sexually abused. Included in the list
were also more credible, but still contested, behaviours of
"fear/obsession with penis" and vaginal soreness. Interestingly, the Law
Commission had not recommended the section (23G) that this sort of evidence
is based on be repealed. Nor had the Ministry of Justice chief legal adviser,
Val Sim. Presumably the change was made at Cabinet level. Robertson argues that
"a formal inquiry needs to be held by someone into every case in which
evidence has been given under section 23G(2)(c), just as in England a formal
inquiry is being held into every case in which Munchausen's by proxy was
advanced as prosecution evidence". In the Ellis case, the
most clear and thorough criticism of the videotaped forensic interviews with
the children is to be found in the reports presented at the second appeal by
Dr Barry Parsonson, a developmental and clinical psychologist with some
expertise in the area of interviewing children and experience in analysing
evidential videotapes. He says: "I
believe any analysis had to look at all tapes in order to evaluate changes in
evidence over repeated interviews, themes and contextual information that
raised issues and informed re credibility etc." Barnett and his
committee decided not to consider the Parsonson report because they limited
themselves to the documents presented by the petitioners and the Ministry of
Justice. Both failed to include this important document. As for the Eichelbaum
report, there is widespread support among expert psychologists, commentators
and lawyers for the view of Robertson that "the Eichelbaum Inquiry has
been rubbished by everyone who examines it seriously". Hood even called
it "a crappy review - he didn't look at the police (role) at all - the
terms of reference said he could (have)." His terms of reference have
often been criticised as too narrow. Nevertheless, Justice
Minister Phil Goff is on record as standing by the blanket findings of
Eichelbaum that the convictions were safe. Canadian psychologist
Louise Sas, upon whom Eichelbaum heavily relied, is considered by many
experts to be overzealous in pursuing convictions, and to give too much
weight to flimsy and far- fetched evidence. She herself has described a
conviction as a "positive court outcome". Undoubtedly it will be
at least a few more years before a full and proper examination of this
bizarre case will settle the widespread disquiet surrounding Ellis and other
victims of hysteria in New Zealand. Another petition
signatory, Nancy Sutherland, thinks "the select committee's
recommendations temporarily do some good right now as they give all parties
some breathing space. Yet they could make things just as hard later. The
report seems rather likely just to cause delay and political efforts could
still be worked to keep the status quo." A commentator who
reported in detail on the case in May this year, Anthony Frith, said,
"Ellis will remain for the foreseeable future a martyr denied redemption
by a system too proud to admit its own mistakes – Ellis has maintained his
innocence, only to be told he is in denial. It is, in fact, the New Zealand
Government that is in denial." Barry Kirkwood, a retired
university senior psychology lecturer from Auckland, commented some time ago:
"We are living in a cargo-cult country (where) magical thinking has
replaced critical analysis; what we are looking at here is a major system
failure. So many reputations are on the line in this case, that the
authorities cannot afford to let Ellis off." Jonathon Harper is a Wellington writer who has taken a
close interest in the civic creche case. |
