The Christchurch Civic Crèche Case |
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The Minister of
Justice appears proud to say that he refuses to read Lynley Hood’s book A
City Possessed. This is unfortunate as there are numerous lessons to be
learned from the saga that are of value today, regardless of the issue of Ellis’s
guilt. On that issue alone, we are witnessing the kind of establishment
obstinacy and public dissatisfaction that led in The Minister
shelters behind the Court of Appeal and the report by Sir Thomas Eichelbaum,
but this is not good enough. One of Lynley Hood’s achievements, as a
non-lawyer, is an astute criticism of the shortcomings of the various methods
available to review criminal convictions. Each of the reviews and appeals
suffered from some limitation, self-imposed or otherwise. A City Possessed
is the first attempt at a review of the whole case from the investigation
onwards. The first issue
obviously is whether Ellis should have been convicted. No one who has read
the confusion and contradiction displayed by the witness statements that Hood
recites can be happy that the convictions are safe. The Court of Appeal
confessed to having read only extracts of the statements, but this is not
enough to make one content with them, whereas relevant extracts are
sufficient to show that witnesses were confused, self-contradictory and
unreliable. Either Sir Thomas did not read those statements because, like
everyone else he restricted himself to the filleted evidence that the Judge
allowed in, or, with respect, his judgment is at fault. Regardless of that
issue, however, there are several systemic matters which clearly require
attention and which, it seems, require attention today just as much as a
decade ago. Police
investigation: the investigation in the Ellis saga
suffered from a clear fault which was that it was driven by a junior officer
with a bee in his bonnet. Senior officers seem almost never to have exercised
independent judgment: they evidently regarded themselves as the heavy guns to
be wheeled out whenever the OiC needed. It is clearly inappropriate that a
multiple victim case involving serious criminal allegations, important legal
and policy questions relating to evidence and major budgetary issues should
have been conducted by an officer of the rank of Detective. Exactly the same
thing seems to have happened again in the Sotheran Dash-8 crash case
where either the Detective concerned was being used as a front to shelter the
real decision makers, or another hugely expensive and complex investigation
was conducted without any leadership from supervising officers. Section 23G of the
Evidence Act: this section is meaningless nonsense. This
is not hindsight, it was said at the time it was passed. The section
authorises the giving of evidence about whether behaviour is consistent or
inconsistent with sexual abuse. “Inconsistent” means “logically impossible in
combination with” and “consistent” simply means “not inconsistent”. There is
no behaviour that is inconsistent with sexual abuse and so the DSAC manual
instructed doctors to report all behaviour as “consistent with sexual abuse”.
This is clearly not understood by most lawyers and police, who, surveys show,
think that “consistent” means “provides supporting evidence for”. Sadly, the
Law Commission draft Evidence Code just reiterates this nonsense verbatim. It
should be repealed. The kindest thing that can be said for those responsible
for it is that they cannot have known what they were doing. Psychological
evidence: little psychological evidence stands up to
serious scrutiny. Psychologists have managed to con the system for years with
nonsense such as “offender profiling” which has no scientific basis whatever.
The fact is that psychology completely lacks a general theory of human
behaviour and the divisions between schools of psychology are as deep as
argument about whether the earth goes round the sun or vice versa. Few
psychologists understand the logical structure of evidence they are giving,
as surveys of numerous cases, listening to them speak on this and other
issues at seminars, and personal experience of trying to train them in
evidence-giving demonstrates. Almost no statements made by psychologists are
backed up by the population data necessary to give the evidence probative
value. The so-called “prosecutor’s fallacy” is endemic. Recently a
psychologist on television suggested that many premature births are due to
stress events in pregnancy. To prove this she interviewed mothers who had
given birth prematurely and discovered that some high proportion of them had
suffered stress events in pregnancy. This, she said, proved her theory. Much
psychological evidence in real Court cases in The appeal structure: The position in a criminal appeal appears to be this. If you are an undoubted criminal caught red-handed but you can point to some defect in police procedure, the Court of Appeal will exercise a power it has arrogated to itself and which Parliament never intended it to have, to rule the evidence inadmissible and set you free. If on the other hand, you argue that you are innocent and have only been convicted because of misjudgments by the trial Judge and by the jury, the Court of Appeal will refuse to exercise the power Parliament intended it to have to revisit the conduct of the trial and the evidence available. This is not how to create confidence in the criminal justice system |