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NZ Herald The collapse of a case with
parallels to the Christchurch creche saga has raised questions about a
psychologist who took part in the inquiry into Peter Ellis’ convictions.
Justice Seekers: Top, Sir Thomas
Thorp, whose report on the Peter Ellis (above left) case expressed doubt
about the safety of his conviction; and Lynley Hood’s book on the
Christchurch case which inspired Ross Francis’ Law Journal report A Ministerial inquiry into the
Peter Ellis Christchurch creche case that concluded the verdicts were safe
relied on the expert opinion of a little-known Canadian child psychologist
who has been involved in controversial cases. Dr Louise Sas was one of two experts
used in the Eichelbaum inquiry into Ellis' case. She was not among those
nominated by any of the parties to the case and the Ministry of Justice has
been unable to explain how her name arose. Most of her work has been for
prosecutorial bodies and directed at improving the criminal justice system's
response to child victims. She has not published any peer-reviewed scientific
articles about child memory, suggestibility and contamination - issues
central to the Ellis case. Of the many psychologists who have
examined the interviews of the creche children since the trial, Sas is the
only one to have stated the children's evidence is reliable. Sas' appointment
is among aspects of the case explored in articles published recently in the New Zealand Law Journal. At the time Sas was assessing the
Ellis children's interviews for the Eichelbaum inquiry, a Canadian case in
which she provided expert evidence for the prosecution collapsed when the key
witness declared he had been lying. Sas interpreted the boy's
retraction as in keeping with abuse - "a clear example of his difficulty
sharing information". The defence lawyer in the case,
Cindy Wasser, chairwoman of the criminal justice section of the Ontario Bar
Association, told Canada's Globe and
Mail, that "Dr Sas can interpret every fact and every behaviour as
evidence of abuse". The case involved a Filipina
nanny, Vilma Climaco, who worked for a middle-class couple looking after
their 4-year-old twin boys. She had a 2-year-old son of her own, the result
of an affair with a married man with whom she was going through a bitter
break-up. The nanny's former partner alleged
to the twins' parents that Climaco was hitting their children. The parents
testified they had been happy with the nanny but decided to take no chances
and let her go. Climaco's ex-partner kept ringing
with allegations and the parents began to question the twins about "what
bad things the nanny had done" The
Globe and Mail reported, and called a social worker who also questioned
them. The twins said nothing that would justify further action. Then months later when praised for
eating up their lunch during a restaurant stop on a car trip, one twin said,
"Vilma never fed us. She made us lick her pee-pee for food." The parents stepped up their
questioning and three weeks later called police who interviewed each twin
twice on video tape. One said he was made to suck a
suitcase; the other didn't say anything suspicious. Climaco was arrested and charged
with sexual assault and sexual touching. Her son was released into the
custody of the father. The twins were sent for counselling at the local child
abuse centre. In a report for the Crown, Sas
said the restaurant incident "can best be described as an unsolicited
accidental delayed disclosure, triggered by a conversation which brought to
mind the specific incidents of sexual abuse. "In this case, the discussion
of food ... brought on the disclosure of oral sex with the babysitter.
According to the evidence, the boys had already been describing sexual acts
in the car which they would do to each other. "This in and of itself is
highly irregular, and this type of discussion suggests they had been
eroticised and introduced to that type of behaviour." At some point after the nanny was
charged the twins' father told his sons' counsellor of finding a 12-year-old
developmentally-delayed neighbourhood boy in the basement with the twins. The
twins' pants were down, the older boy was on his hands and knees. Asked what
he was doing, the boy said: "I'm kissing their penises. I know it's
wrong, but I like it." Counsellors interviewed the older
boy and his family. His mother said she wasn't surprised as her son had
interfered with other young children but the boy denied the basement
incident. No police interview was done. The nanny went to trial. One
night, part-way through, the twins' father got a call from the father of the
12-year-old. The older boy had told his parents that not only had he seen
Climaco abuse the twins, she had abused him as well. The Crown decided to call the
12-year-old as a witness even though he didn't know the nanny's name and had
wrongly described her as having blond hair and blue eyes. The defence
successfully sought a retrial because of late notice of a new witness. By the time of the new trial the
boy had been interviewed three times on videotape. His stories were
contradictory and in the third interview he said he'd been lying. Sas reviewed those three
interviews for the crown and said the inconsistencies and retractions were
"a clear example of his difficulty sharing the information". Before a jury was elected at the
second trial the judge reviewed the evidence and interview tapes, decided
they were unreliable, and threw the case out. The Law Journal report challenges Sas regarding Project Guardian, which she
characterised as a multi-victim, multi-offender sex ring case which involved
60 young boys aged between eight and 17 and 80 adult male offenders. Dozens
of arrests were made and hundreds of interviews conducted but only two
convictions (for videotaping youths aged 14 and older engaged in sex acts)
resulted. "What Sas didn't mention was
that many Canadians regarded Project Guardian as an anti-gay witch
hunt," wrote Ross Francis, a librarian and researcher, in the Law Journal, Documents released to Francis
under the Official Information Act indicated that Eichelbaum, after speaking
with the Ministry of Justice's chief legal counsel of the time, Val Sim, had
the view that Sas had "high standing". The Ministry of Justice says its
officials and Eichelbaum both carried out research to come up with possible
names but its officials did not remember which list Sas came from and its
files "do not indicate where the name Louise Sas came from". Francis classifies himself as a
supporter of Ellis. There is a link to his articles and documents he has
obtained under the OIA on the Peter Ellis campaign website. Francis told the Herald his interest in the case
stemmed from reading Lynley Hood's book, A City Possessed (2001). He has been
researching what he sees as shortcomings in the Ellis case for a number of
years. Sas has not responded to messages
left on her voicemail during the week. Eichelbaum told the Herald it was not his practise to
comment publicly. Sim, who worked closely with Eichelbaum on his inquiry, is
overseas and could not be contacted. She had previously advised against
having a commission of inquiry into the Ellis case. She is now a member of
the Law Commission, a Crown entity which advises on law development and
reform. Francis contends the Eichelbaum
inquiry was flawed because of prejudicial advice from officials, its narrow
scope (including a decision to overlook Sir Thomas Thorp's report for the
Secretary of Justice which expressed doubt about the safety of the
convictions) and the selection of Sas in favour of a number of
internationally-renowned experts. In an apparent quest to find
neutral experts who hadn't previously expressed an opinion on the case, many
experts with strong reputations in the area of child memory and
suggestibility were ruled out. Among them was Cornell University
professor Stephen Ceci (one of three experts nominated by Ellis' legal
counsel), whose opinion the Thorp Report recommended that the Ministry of
Justice seek. Eichelbaum - who could have
appointed up to six experts discarded Ceci due to his "high
profile" and "research direction". Also apparently ruled out were
those with a "close publishing association". The inquiry chose Sas, much of
whose work is as a child advocate, and Leicester University psychology
professor, Graham Davies. Whereas Sas stated that the
evidence of the children was reliable, Davies was more cautious, noting in
his report he would not pronounce on guilt or otherwise, or on the
reliability of individual children's accounts. Eichelbaum noted both experts
considered the interviewing was of an appropriate standard, although Davies
commented they did not reach the best standard in every respect. If there was one major weakness it
was the "sheer number of interviews ... over an extended period". "Cross-talk among families
against a background of persistent accusation against a suspect" was of
concern but, said Davies, "I do not think cross-talk alone is sufficient
to explain the similar accusations made against Mr Ellis, particularly in
relation to incidents in the creche toilets". Eichelbaum concluded the
convictions were safe and said that while "the occasional miscarriage of
justice can occur ... Mr Ellis' case has had the most thorough examination
possible. It should now be allowed to rest." Finality was on Margaret Wilson's
mind when - as Associate Minister of Justice and Attorney-General - she urged
Cabinet not to have an inquiry at all. It was important, she said, that
victims could move on, and revisiting it risked the Government being seen
"to be casting doubt on the [criminal justice] system". Cabinet had the option of an
officials' inquiry, ministerial inquiry (which it chose - Eichelbaum's) or a
commission of inquiry. Debate about the adequacy of the
system for dealing with potential miscarriages is unlikely to go away. Ellis - who served his full
10-year sentence rather than admit to a crime he says he didn't commit in
order to get parole - is trying to take his case to the Privy Counsel which
recently ordered a retrial for David Bain. The Marlborough Sounds murder case
which resulted in the conviction of Scott Watson is also back in the news,
with supporters of the accused double killer claiming there were serious
flaws in the police investigation. Thorp told the Herald he expected the David Wayne
Tamihere case (he was convicted of the 1989 murders of Swedish tourists Heidi
Paakkonen and Urban Hoglin) "to bubble at some stage". "In general, cases that
depend upon circumstantial evidence prove to be a worry if people exclude the
unfavourable inferences. It's all very fine finding five things which point
one way, but if you exclude five that point the other way you get a strange
situation." Last year an Innocence Project was
set up, modelled on those in the United States which have exonerated 200
people since 1992. Traditionally attached to
universities, New Zealand's is linked to the psychology departments of
Victoria and Otago Universities. Dr Maryanne Garry (Victoria) and Professor
Harlene Hayne (Otago), Americans who came to New Zealand in the 1990s are
directors. Garry, who came to New Zealand
from the University of Washington, found New Zealanders inexplicably
complacent about the prospect of miscarriages when those things proven to
have caused them in the US and in Britain were just as applicable here. People used to laugh when she
raised it, she says. "They pretty much stopped laughing after the
Dougherty case." (David Dougherty was freed and compensated in 1997
after DNA proved the semen on the rape victim's underwear was not his). The most common cause of
miscarriages is faulty eyewitness evidence. Garry, a specialist in adult
memory distortion, says there is nothing special in New Zealand procedures
for dealing with "what we might call memory trace evidence" that
better protects against error. "I'm not sure there is enough
recognition that the problem [of miscarriages] exists. To solve a problem you
first have to recognise that you have a problem." Garry found it "curious"
the Eichelbaum inquiry ruled out scientists because of their "research
direction" when "science by definition is the search for
information free from bias". "So, to describe someone as
biased because they happen to have found certain patterns or effects in their
objective scientific data, sounds like someone saying 'I don't like what
those data' say, as though [the scientists] are making the data say something
because that's their personal agenda. "I find that breathtaking.
It's sort of like saying Einstein had a personal axe to grind with
gravity." |
