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Ministry of Justice
Report
May 21, 2002
‘A City Possessed – Lynley Hood’s Book on the Christchurch Civic Creche Case”
Val Sim
Chief Legal Counsel, Office of Legal Counsel
LA 04 01 00 03
21 May 2002
Minister of Justice
‘A CITY POSSESSED’ – LYNLEY HOOD’S BOOK ON THE CHRISTCHURCH CIVIC CRÈCHE CASE
You have asked for a report on the book “A City Possessed” on the
Christchurch Civic Crèche case. In
particular, you asked whether the book discloses any new information which
might point to the need for further inquiry into the Peter Ellis case.
The Structure of the Book
Ms Hood’s broad thesis is that, like the witch trials of the late 16th
and 17th centuries, the Christchurch Civic Crèche case was the
product of ‘moral panic’ about child sexual abuse, and mass psychogenic
illness for which Peter Ellis was made a scape-goat.
Broadly, the book can be divided into three parts. The first part of the book describes the
environment in which the Ellis case took place. It describes the social and political
forces which Ms Hood suggests created the ‘moral panic’ about child sexual
abuse and the related changes to the law which she suggests removed the
traditional protections for persons suspected of child sexual abuse and made
the conviction of Peter Ellis possible.
The second part relates to the events surrounding the investigations of
sexual abuse at the Christchurch Civic Crèche. Ms Hood’s research for this part of the
book is based primarily on the record of the successive criminal and
employment court proceedings. In
addition, she obtained a variety of material under the Official Information
Act and conducted interviews with a number of people involved with the
case. It should be noted that while
this part of the book deals with all aspects of the case including the
prosecution of Peter Ellis, the prosecution of the women crèche staff members
and the closing of the crèche, we have limited our comments to matters
relevant to the conviction of Peter Ellis.
The third part of the book is essentially a critique of the various court
proceedings surrounding the case (the depositions, the trial of Peter Ellis,
the Employment Court
proceedings, the Court of Appeal hearings and the Eichelbaum inquiry). Again, we have limited our comments on this
part, to matters relevant to Peter Ellis’ conviction.
Part I - The Environment
The essence of Ms Hood’s argument is that during the late 1970s and 1980s,
the combined effect of the political agendas of the feminist movement, the
child protection movement and religious conservatism was a ‘moral panic’
about child sexual abuse. This panic
was allegedly created by overstated estimates about the prevalence of child
sexual abuse and its effects, and reinforced by largely untrained and
unsupervised sexual abuse counsellors who, imbued with the philosophies of
authoritarian feminists, pursued their mission of detecting child abuse with
zeal.
Ms Hood suggests that increasing concerns about child sexual abuse and in
particular the political agenda of the child protection movement, resulted in
changes to the laws relating to the evidence of child complainants which
removed the traditional protections for those suspected of abuse and made the
securing of convictions easier[i][1].
According to Ms Hood, these developments had a particular impact in Christchurch, the epicentre in New Zealand for the
detection, investigation, and prosecution of child sexual abuse. Prior to the crèche case there had been
highly publicised accounts of false allegations of child sexual abuse at Ward
24 of Christchurch Hospital and Glenelg Health Camp. However, Ms Hood suggests that the Mason
inquiry set up by Dr Cullen after complaints by Parents Against Injustice
(Pain) effectively “vindicated”[ii][2]
the child protection workers involved.
In addition, the city was awash with rumours about a wide-ranging
police investigation of a child pornography ring, a teacher’s aide was
convicted of child sexual abuse in April 1991 and a “virulent” ritual abuse
scare was ‘ripening’ in Christchurch partly because of a Ritual Abuse Action
Group Workshop held in Christchurch in September 1991. Against that background, Ms Hood suggests a
case such as the Christchurch Civic Crèche case was inevitable.
She also suggests that the case and the spiralling set of complaints which
gave rise to it, created their own environment, by crystallising and
focussing attention on nascent concerns and fears that were the product of a
more general emerging “feminist” view of the world.
Comment
(a) The ‘Moral Panic’
The concept of a ‘moral panic’ is recognised in social science
literature. However, the complex and
intangible factors which may give rise to it necessarily mean that it is very
difficult to attribute particular events to the existence of a ‘moral panic’
even if there is evidence to suggest it exists.
Ms Hood’s account of the events said to give rise to a moral panic proceeds
from a particular perspective and there are aspects of it which may well be
open to challenge[iii][3]. However, we have little doubt that the
1970’s and 1980’s were a period in which there was increased interest in and
awareness of child sexual abuse. It is
also true that during this period there was a significant increase in the
number of reported child sexual abuse cases and that both in New Zealand
and overseas there were mistakes and cases where false allegations of child
sexual abuse were made. There was also
reasonably extensive publicity about child sexual abuse, including, at one
end of the spectrum, publicity about matters such as satanic ritual abuse
and, at the other, publicity about false allegations of abuse[iv][4]. Whether or not these things would
constitute a ‘moral panic’ as traditionally understood is open to debate, but
in any event the argument that they render Ellis’ convictions unsafe has not
been demonstrated in the book.
The general climate surrounding allegations of child sexual abuse and the
effect of publicity about it have been considered by the courts and by the
Eichelbaum inquiry. Before the trial,
Justice Williamson considered but rejected a submission by defence counsel
that the combined effect of sensational media reports on the case and
wide-spread and emotional community reaction to the abuse of very young
children was to deprive Mr Ellis of his minimum right to a fair trial by an impartial
and independent jury. Mrs Ablett-Kerr
QC made submissions at the second Court of Appeal hearing and again to the
Eichelbaum inquiry about the climate surrounding child sexual abuse in Christchurch. She submitted that, in the lead up to the
Ellis trial in November 1991, Christchurch
was “a smouldering volcano awaiting sufficient pressure to trigger an
explosion” on account of publicity in regards of sexual abuse and satanic
ritual abuse in particular.
Moreover, the Eichelbaum inquiry into the reliability of the children’s
evidence was approached from the standpoint of contemporary knowledge of and
attitudes towards child sexual abuse rather than those which prevailed in the
1970’s and 1980’s.
We discuss this more fully later in the report.
The Evidence Law Reforms
The 1989 amendments applicable to children on sexual cases which Ms Hood
suggests made the conviction of Peter Ellis possible, are in three
categories. First are provisions
relating to the mode of giving evidence, second are reforms relating to the
admissibility of expert evidence for child sexual abuse cases, and third are
reforms relating to the directions to be given by trial Judges to juries
about the evidence of young children.
(i) Amendments relating to the
Mode of Giving Evidence
The main features of the reforms relating to the mode of giving evidence
were:
amendments to the Summary Proceedings Act permitting child complainants in
sexual cases to give their evidence at preliminary hearings in the form of a
videotaped interview (and hence need not appear in person or give a written
statement[v][5]).
Amendments to the Evidence Act require the prosecutor to seek a direction
from the Court on how the complainants’ evidence is to be given[vi][6]. The available modes of giving evidence include
presentation at the trial of the videotaped interview shown at the
preliminary hearing, the complainant giving evidence outside the courtroom by
closed-circuit television, the complainant giving evidence by audio link from
behind a wall or partition, or the complainant giving evidence in Court
screened by the defendant.
Where the prosecution requests the use of a videotape interview at trial, the
videotape must comply with the Evidence (Videotaping of Child Complainants)
Regulations 1990.
In the Ellis case, the trial Judge directed that the children’s evidence be
given by means of the presentation of the children’s videotaped
interviews. Cross-examination of the
children was given outside the courtroom by means of closed circuit
television. The issue raised by the
book is whether these provisions are generally unfair or were unfair in the
context of the Ellis trial.
Comment
Since the Ellis trial, the Law Commission has examined the provisions
relating to children’s evidence in the context of its reference on the
evidence law reform. In its
Preliminary Paper No.26, The Evidence of Children and Other Vulnerable
Witnesses, the Law Commission noted a 1996 New Zealand study[vii][7]
which found the provisions were generally perceived as satisfactory by most
professional groups. There was general
consensus “that the new procedures significantly reduced the trauma of
testifying for the child witness and this effect was not judged by any group
– except defence lawyers – to be at the expense of the quality and truthfulness
of the evidence given”.
Overseas studies referred to in the Law Commission report have reached
similar conclusions[viii][8].
The Law Commission considered the main advantages of children giving evidence
by videotaped interview are that “the evidence is recorded while the memory
is still fresh usually some months before the trial. Videotapes may also increase the
reliability of evidence by reducing the number of interviews, thus lessening
the impact of repeated questioning on the witnesses recall of events”[ix][9]. In addition, the specialist interviewer may
be a specialist in communicating with children which could increase the
quality and reliability of a child’s responses.
The main advantage of children being cross-examined outside the courtroom through
use of close-circuit TV is that children may respond better to questions when
they are asked in a smaller more intimate setting which makes them feel more
at ease than a courtroom.
Having regard to the experiences in both New Zealand and overseas, we
cannot agree with Ms Hood’s suggestion that the amendments relating to the
way in which children may give evidence in sexual cases are unfair or that
they brought about any injustice in Mr Ellis' trial. In this regard, we note that while there
has been considerable argument about the interview techniques used, and about
contamination of the children’s evidence, there has never been any suggestion
in any of the court hearings or before the inquiry that the way the children
gave evidence in itself operated unfairly.
On the contrary, the effect of using the children’s videotaped
evidence was to give the jury, and later both Sir Thomas Eichelbaum and
the international experts, the opportunity to assess for themselves the
evidential interviews of the children.
(ii) Expert Evidence
in Child Sexual Abuse Cases
The second reform mentioned by Ms Hood, and the one which has received
the greatest criticism, relates to the use of psychiatrists and psychologists
as expert witnesses in sexual abuse cases.
In 1989, Parliament enacted a new section 23G of the Evidence Act to
overcome the strictures imposed on the admission of psychological evidence by
the Court of Appeal’s decision in R
v B. In that case, the Court of Appeal held
that, to be admissible, the evidence tendered by qualified experts must have
a scientific basis. In addition, the
evidence must not go to the complainant’s credibility. The Court expressed the view that the field
of psychology, given its current state of development, was insufficiently scientific
in its basis to meet the admissibility requirement. It also concluded that the evidence
tendered by psychologists was, in effect, a judgement on the credibility of
complainants.
Since its enactment, the Courts have interpreted section 23G strictly,
deeming it a limited relaxation of the rules articulated in R v B. If its terms are met,
then psychological evidence will be admissible irrespective of the test
articulated in R v B.
To qualify as an expert witness under section 23G, the expert must be a
registered psychiatrist or a registered psychologist who has practised in the
field of child psychiatry or psychology and must have experience in the
treatment of sexually abused children.
The courts appear to consider familiarity with the relevant literature
to be sufficient to meet the experience requirement when the expert is
expressing an opinion regarding the consistency of the complainant’s
behaviour with that of sexually abused children of the same age group as the
complainant.
The evidence that the expert is permitted to give is limited to the matters
outlined in section 23G(2)(a)-(c). The
expert can comment on the intellectual attainment, mental capability, and
emotional maturity of the complainant.
This comment may be based on an examination of the complainant before
the complainant gives evidence or on observation of the complainant giving
evidence directly or on videotape. As
long as the comment is directed and confined to the behaviour of the complainant
as described by other persons in their evidence at trial, the expert’s
acquisition of information about the complainant’s behaviour from other
sources will not affect its admissibility.
The expert may also comment on the general developmental level of children of
the same age group as the complainant.
In addition, the expert may express an opinion on whether any evidence
relating to the complainant’s behaviour is consistent or inconsistent with
the behaviour of sexually abused children of the same age group as the
complainant. This opinion may be based
on the expert’s professional experience or on the expert’s knowledge of the
relevant literature.
The judicial decisions on section 23G since its enactment indicate that the
Courts view it as codifying the common law rule that the psychological or
psychiatric expert witness cannot pass judgment on the complainant’s
credibility as a witness. That is a
matter for the jury. However, the jury
may use expert evidence in reaching its own conclusions regarding the
veracity of the complainant’s evidence.
In the Ellis trial, the Crown called expert evidence from a psychiatrist, Dr
Karen Zelas. The defence called
evidence from psychologist Dr Keith Le Page.
Both gave evidence about the general development of children in the
3-10 age group. Justice Williamson, in
his summing up, commented on their evidence as follows:
“Despite the way the two experts used
language and their different approaches, you may think that overall there was
substantial agreement between them about the development of very young
children”.
There was also evidence from Dr Zelas about whether the behaviour of the
complainant children was consistent or inconsistent with the behaviour of
sexually abused children of the same age group. Dr Le Page also purported to give evidence
of this kind, but his evidence was the subject of some confusion. Dr Le Page’s evidence was to the effect
that certain behaviours did not prove child abuse. Justice Williams noted in his summing up
that this went beyond the confines of section 23G.
Comment
The Law Commission has not identified any concerns with the operation of
section 23G of the Evidence Act 1999 and in its report on Reform of the Law
of Evidence recommends the retention of a similar provision.
We have some reservations about the extent to which evidence from expert
psychiatrists or psychologists (in particular, evidence about the consistency
of the behaviour of the complainant with the behaviour of sexually abused
children of the same age group) adds to the assessment of the reliability of
children’s evidence or what assistance it gives to juries.
The problem with evidence of this kind is (as defence counsel in the Ellis
case established through his cross examination of Dr Zelas and submitted
in his closing address) that in many cases there may well be other
explanations than sexual abuse for particular behaviours by children, so that
evidence that the behaviour in question is consistent with sexual abuse may
be of little evidential value. Sir Thomas
Thorp noted this difficulty in his report on the case and recommended the
repeal of the section. Arguably, such
evidence may also be misleading.
We are currently considering further whether section 23G of the Evidence Act
ought to be repealed in the context of work on the Law Commission’s Evidence
Code.
That said, there is nothing to suggest that the provisions caused any
injustice in the particular circumstances of the Ellis case. As mentioned above, defence counsel clearly
established that there could be other explanations than sexual abuse for the
behaviours of the complainant children and the trial judge made it clear that
ultimately the assessment of the reliability of the children’s evidence was a
matter for the jury. In this regard,
we note that the jury convicted Mr Ellis on some charges and acquitted on
others. This suggests that the jury
was well able to make its own assessment of the reliability of the evidence
of each of the children individually and in respect of each of the charges. Finally, we note the Court of Appeal has
expressly rejected the suggestion that the expert evidence at the trial was
unfair to Mr Ellis.
(iii) Jury Directions
The third feature of the reforms was the enactment of section 23H of the
Evidence Act relating to directions to the jury. This requires judges:
to explain the provisions relating to modes of evidence and to direct that no
adverse inferences are to be drawn from this;
not to warn juries about the absence of corroboration;
not to instruct juries on the need to scrutinise evidence with special care
nor to suggest that young children generally have tendencies to invention or
distortion.
Comment
Sir Thomas Thorp in his advice on the Ellis case indicated there might be a
need to consider reform of section 23H of the Evidence Act if it was established that there had
been a change in expert opinion about the suggestibility of very young
children[x][10].
The Law Commission has also considered the provision and recommends that its
substance be retained.
The Law Commission report notes:
“There is currently no evidence to
support the proposition that children spontaneously and without prompting
fabricate claims of sexual abuse.
Researchers agree that young children can often recall events
flawlessly. A number of studies
indicate that children’s recall is at times highly accurate and quite detailed about a large
range of events”.
However, the Law Commission did suggest that there should be a
standardised direction which a Judge could give in cases involving children
under six years of age if the Judge considered it would assist the jury. The proposed direction is to the effect
that depending on the way they are questioned very young children may be more
open to suggestion than older children or adults and that the reliability of
their evidence depends on the way they are questioned[xi][11].
The question of what (if any) direction is necessary when dealing with the
evidence of very young children will be looked at further in the context of
legislation implementing the proposed Evidence Code. However, whichever conclusions are reached
about the need for and form of judicial directions, it is very difficult to
see how the current provision in itself can be said to have caused a
miscarriage of justice in the Ellis case.
In this regard, we note that in summing up Justice Williamson
emphasised the fundamental importance of the children’s evidence and that
consequently it was prudent to proceed in considering their evidence with
caution. He also made it clear that it
was equally as wrong to proceed on the basis that children often fantasise or
romanticise as it is to consider that children never lie about child sexual
abuse. This is entirely consistent
with current research.
Part II - The Investigation
Ms Hood’s account of the case takes the form of a narrative interspersed with
extracts from the transcripts of the depositions and trial, extracts of
relevant documents, and extracts from her interviews of persons
involved. Early on in the book Ms Hood
acknowledges that by the time she came to write the book she had concluded
that there was no evidence of wrong-doing at the crèche[xii][12]. Inevitably the narrative is coloured by her
own view of events.
Ms Hood did not interview the children involved in the case because she
considered that even if the children could have contributed to the research,
she did not wish to add to their distress[xiii][13].
In addition, while Ms Hood interviewed a crèche parent who had withdrawn her
daughter from the case and several parents of children who had not disclosed
abuse, none of the parents whose children were involved in the case were
willing to participate in her research.
The effect is that the account of the case is somewhat one-sided.
The book contains many extracts from interviews which took place some years
after the trial with people involved in the case. Of these, it is sufficient to note that
many describe the emotional reactions of the person interviewed, or give
accounts of the case which are coloured by that person’s views. Some of these accounts also make
allegations about events or the conduct of others, but these are largely
untested. For example, there are
accounts by crèche workers about their dealings with Detective Eade but none
of the specific allegations has been put to Detective Eade for comment. While in the context of a book this makes
for compelling reading, it has an impact on the reliability of the account.
This is not intended as a criticism of Ms Hood, but it does illustrate the
differences between a book and a criminal trial. A criminal trial has built-in safeguards
designed to ensure the accuracy of the information and allow the testing of
credibility where the accounts of witnesses are in dispute which are not
available to an author. For example,
witnesses can be compelled to attend and answer questions, they have an
obligation to tell the truth, and any evidence which is contrary to the
account given by a witness must be put to the witness so that the witness has
an opportunity to respond.
Overall, the book contains more detailed information about some of the
peripheral aspects of the case, such as the history of the crèche, than was
given in evidence at the trial.
However, in its essential respects the book contains very little new information,
albeit that the facts are presented from a particular perspective. It is not possible within the confines of
this report to comment on all of the matters mentioned by Ms Hood.
We outline below some of the main issues which are raised by Ms Hood in this
part of the book.
(i) The
History of the Crèche
Ms Hood is critical of the fact that the police did not interview
independent observers of the crèche such as staff or students of the College
of Education, who would have spoken highly of the crèche or David Close, an
employee of the Schizophrenic Fellowship which shared premises with the Civic
Crèche at the Cramer Centre during the period January 1989 to June 1991.
Comment
At the trial there was ample evidence from crèche staff and parents that the
crèche was well run and that neither staff nor parents had seen anything
untoward at the crèche until the remark by a child triggered the police
investigation in November 1991. It is
therefore difficult to see what more interviews of staff or students of the College of Education, or of David Close could
have added to the evidence at trial.
The Role of Ms Magnolia
Central to Ms Hood’s theory of the case is the parent who she names Ms
Magnolia. Ms Magnolia was the
parent of the child who made a comment that ‘he did not like Peter’s black
penis’ which sparked the initial concerns about possible sexual abuse at the
crèche. In essence, Ms Hood suggests
that Ms Magnolia has an “epidemiological personality”[xiv][14]
– ie, one which triggers mass hysteria.
Such personalities, Ms Hood says, can trigger a variant of the
condition known as mass hysteria by proxy[xv][15].
Comment
The basis on which Ms Hood concludes that Ms Magnolia has an
“epidemiological” personality is not entirely clear. Ms Hood’s picture of Ms Magnolia appears to
have been derived from descriptions of her rather than from first hand
experience. So far as we can make out,
the primary reasons for Ms Hood’s ‘diagnosis’ appear to be that Ms Magnolia
had worked in the sexual abuse field, that she had a history of depression
and that, after removing her son from the crèche, she made a similar
complaint about a male crèche worker elsewhere.
Ms Magnolia gave evidence at the depositions hearing where she was rigorously
cross-examined on matters such as her knowledge of and attitude to child
sexual abuse, her involvement with other crèche parents, her depression and
the later allegations of abuse made by her son against an employee at the
crèche at which her son was subsequently enrolled. While neither the Crown nor the defence
chose to call Ms Magnolia at the trial, all of the matters referred to by Ms
Hood were known and available at the time of trial.
(iii) The
Background of Crèche Parents
Ms Hood describes in some detail the backgrounds of crèche parents[xvi][16]. She notes that at the time of the crèche
case the parent groups split. Some
stood firmly behind staff, some became complainants and some walked
away. By the time the case reached the
court the parents who remained involved had formed two groups – those who
gave evidence for the prosecution and those who gave evidence for the
defence. Ms Hood then compares the
backgrounds of each group. Those who
gave evidence for the defence she suggests were in stable long-term
relationships. They came from a
variety of occupational groups. None
was unemployed and none were social workers, counsellors or therapists. They had an average of three children per
family and there were no twins.
Of the complainant parents she suggests five worked in the sexual abuse
field, while the rest had a range of occupations. One couple had four children and the rest
had two. One parent was not in a
relationship at the time of the trial.
Some parents had children to other relationships. There were three sets of twins[xvii][17].
When the trial was over, guilty verdicts were returned on charges involving
seven children. Five of their parents
worked in the sexual abuse field. Ms
Hood explains that the relevance of twins is that “it could be argued that
because of the closeness of twins, an alarming idea, once sown in the
imagination of one twin will be quickly transmitted to the other”, Ms Hood does not explain the relevance of
the other factors but it is implicit that those parents who had backgrounds
in child sexual abuse contaminated the evidence of the children and fuelled
the panic over child sexual abuse. The
relevance of the fact that parents had children by other relationships and/or
were not in a relationship at the time of the trial appears to be that this may
explain some of the unsettled behaviour of the children which was said to be
consistent with child sexual abuse.
Comment
Ms Hood does not source her information about the children’s backgrounds and
the suggestion that five of the seven children whose evidence resulted in
guilty verdicts had a parent who worked in the sexual abuse field does not
seem to be borne out by the evidence of the parents at the depositions and
trial. (The evidence suggests that
five had social work or community work backgrounds, but that only two had
experience in the sexual abuse field and their work was largely with
adults). Be that as it may, in our
view it is inappropriate to make judgements about the parents based only on
their backgrounds. Ms Hood has not met
the parents concerned and her picture of them is derived only from reading of
transcripts and what she has been told by others.
The jury, on the other hand, was able to make its own assessment of the
credibility and reliability of these parents having seen them cross-examined
on a range of matters, including their backgrounds and the extent of the
contact they had with other parents.
(iv) The
Role of Detective Eade
Ms Hood is highly critical of Detective Eade, the police officer who had
responsibility for the day to day management of the case. She speaks of an interview held with
Detective Eade at an unspecified time after Peter Ellis had been convicted,
after which she wrote:
“Detective Eade’s single-minded line of
argument, and the conspiracy beliefs which underpinned it, were chillingly
reminiscent of the arguments and beliefs I had read about in demonology
manuals of the 16th and 17th centuries”.
The book describes Detective Eade’s involvement with parents of crèche
children and with the specialist interviewers. It also recounts a 1997 TV3 documentary in
which concerns were raised about Detective Eade’s mental state and about the
fact he had ‘propositioned’ a crèche mother in the course of the
investigation and had sexual relationships with two others after the trial
was over.
In response to that programme, there was an internal police investigation
into Detective Eade’s behaviour conducted by Detective Superintendent Millar,
who concluded that there was a robust supervisory infrastructure in place
throughout the investigation and that Detective Eade’s psychological
condition was not such that his judgement was impaired in any significant
way.
Based largely on interviews with the Police officers involved, Ms Hood
concludes that although Detective Eade had some support from other Police
officers he did not have robust supervision of the kind Detective
Superintendent Millar had claimed.
Comment
Detective Eade was cross-examined at both depositions and trial about his
role in liaising with parents and with the specialist interviewers, the issue
being whether he was a possible source of contamination of the children’s
evidence.
Following the 1997 TV3 programme, the conduct of Detective Eade was included
in the grounds of Mr Ellis’ application for the exercise of the Royal
prerogative of mercy. Neither we, nor
Sir Thomas Thorp considered that any of the matters raised in relation to
Detective Eade warranted a reference to the Court of Appeal.
There was, nevertheless, some reference to Detective Eade’s conduct at the
second Court of Appeal hearing. The
judgement records:
“A further nine documents were presented as demonstrating risks of
contamination through contact with the officer in charge and the parents and
children. Having carefully
reconsidered those documents we are unable to see how they could have been of
material assistance to the defence. Mr
France
correctly submitted that they were primarily used to support an attack on the
integrity and ability of the officer in charge of the case… In so far as they do bear on the questions
of contamination they do not meet the threshold of evidencing a concern that
if properly used at trial they may have had a material effect on the jury’s
deliberations”.
The crux of the Ellis case is the reliability of the children’s evidence and
Detective Eade’s conduct and mental state are relevant only to the extent
that they bear upon that issue. The
issue of possible contamination of the children’s evidence by Detective Eade
as well as by the parents, has been examined extensively by the High Court,
by the Court of Appeal on two occasions and by the Eichelbaum inquiry.
(v) Dr
Karen Zelas
Ms Hood is critical of Dr Karen Zelas, a psychiatrist, who, whilst not
directly involved in the interviews of individual children, supervised the
overall process. Dr Zelas also gave
expert evidence for the prosecution under section 23G of the Evidence Act.
In the first paragraph of the book there is extensive comment about Dr Karen
Zelas, including matters relating to her qualifications, training, experience
and reputation as a child sexual abuse expert, about which Ms Hood is
dismissive[xviii][18]. There is also mention (and implied
criticism) of her involvement as an expert witness in some controversial
child sexual abuse cases which were the subject of a Frontline documentary and
later the Mason report.
The inference the reader is invited to draw from this part of the book is
that at the time of the crèche case, Dr Zelas had a particular mindset
towards child sexual abuse and that she had an influence over Judges[xix][19] in child sexual abuse cases which was not
warranted by her qualifications, training or experience. In the context of the case itself, Ms Hood
is particularly critical of Dr Zelas for an interview she gave on the Holmes
show on 23 March 1992 (that is shortly before Peter Ellis was arrested,
and the meeting of crèche parents at Knox Hall). In that interview, Dr Zelas warned parents
not to interrogate their children, advised parents to note any changes in
their children’s behaviour, or particular anxieties, listed some behaviours
which could be possible indicators of abuse, and described possible long-term
effects of sexual abuse. She also
invited concerned parents to contact the investigating agencies and gave
reassurances about the interview process.
This, Ms Hood suggests, “effectively validated the sexual abuse panic which
was engulfing the crèche” and was “for a professional, who regarded herself
as a rational and dispassionate expert a deeply compromising event”.
Ms Hood also noted that, during the trial, Dr Zelas did not recall giving the
Holmes interview until confronted with an extract of it in
cross-examination. This, she suggests,
is extraordinary in the context of a criminal prosecution in which the
reliability of the memory and the credibility of Dr Zelas were important
factors.
Comment
Dr Zelas was not directly involved in the interviews of crèche children. Her role was one of supervisor of the
specialist interviewers, and, from time to time, she was consulted by police
on difficult issues that arose in the course of the investigation. She also gave expert evidence at the trial
pursuant to section 23G of the Evidence Act about the general development of
children and about whether the behaviours exhibited by the crèche children
were consistent with the behaviours of sexually abused children of the same
age-group. She was cross-examined
extensively on a variety of matters including the Holmes programme referred
to by Ms Hood.
The jury was therefore able to make its own assessment of Dr Zelas, the reliability
of her memory and her overall credibility.
Among the arguments on appeal was a complaint that Dr Zelas’ evidence
occasioned a miscarriage of justice.
The Court of Appeal judgement records:
“The next ground was a complaint that the extent of the evidence permitted
from Dr Zelas in terms of s23G of the Evidence Act occasioned a
miscarriage. Mr Panckhurst opened on
this by criticising (albeit with some delicacy) Dr Zelas’ conduct in
undertaking a supervisory role in the interview process and then appearing as
an expert expressing the opinions authorised by s23G of the Act. Those opinions were about the consistency
of each complainant’s behaviour with that of sexually abused children of the
same age group; the intellectual attainment, mental capability and emotional
maturity of the complainant; and the general development level of children of
the same age group.
Counsel did not suggest that she was
disqualified from giving such evidence because of her prior involvement, but
said she was in an “uneasy” position when it came to drawing the fine line
between evidence allowed under the section and the expression of an opinion
on the credibility of particular complainants. It is, of course, a line which may be difficult
to discern in some situations, particularly when dealing with a group of
young children, some of whom have given similar accounts of the appellant’s
behaviour. It is inevitable that
general statements about young children’s mental capacity etc may be seen as
applying specifically to these children – for example, the way young children
use magical thinking; their tendency to give unusual or bizarre description
of events of which they have had no previous experience; their ability to
recall central details more readily than peripheral ones; and the stages of
memory development and ability to recollect past matters.
All these were features very relevant to the accounts given by the
complainants in this case, and they were the matters on which the jury would
clearly be assisted by expert opinion.
As Mr Stanaway pointed out, Dr Le Page (called by the defence) gave
the same kind of evidence, although perhaps not in full agreement with Dr
Zelas. There may have been one or two
unimportant exceptions, but in the very extensive evidence given by both
these experts we detect nothing to substantiate the suggestion that they
overstepped the limitations imposed by s23G and started expressing views on
the credibility of individual complainants”. [xx][20]
Somewhat ironically, in light of Ms Hood’s criticism of expert evidence
in child sexual abuse cases, Mr Ellis’ primary arguments in his application
for the exercise of the Royal prerogative relied on expert evidence about
factors which might impact on the reliability of children’s evidence. The second Court of Appeal was presented
with further expert evidence from Drs Parsensen and Lamb (for Mr Ellis) and
Dr Dahlenberg for the Crown. The Court
noted that there were differing views amongst the experts and that knowledge
in the area was constantly developing, but did not consider the new evidence
sufficient to warrant intervention by the Court of Appeal.
Expert evidence was also a feature of the Eichelbaum inquiry. Ms Hood is critical of one of the international
experts used (Dr Sas) and of the “best practice” models of child interviewing
which were relied on by Sir Thomas Eichelbaum and the two international
experts which she suggests are based on flawed ideology[xxi][21]. However, while there are undoubtedly
differences of views between experts, Ms Hood’s criticisms overlook the
fact that the models were developed in light of the problems which had
emerged internationally in investigating child sex abuse cases and take into
account, to the extent possible, the differing expert views. Equally, we have no doubt that Sir Thomas,
and the two international experts would reject any suggestion either that
they subscribe to the ideology which Ms Hood attributes to them or that the
best practice models are based on this kind of ideology.
(vi) The
Psychologist named ‘M’
Ms Hood recounts an interview with a psychologist who did not wish to be
named who received “a chilling phone call” from an unnamed “official in the
justice department” in which it was suggested that involvement in the Ellis
case “would compromise his ability to receive referrals, appointments and
assignments from government departments and reputable referees in town” [xxii][22]. On the strength of that phone call ‘M’ said
he withdrew from the Ellis case. ‘M’
also suggested that at the time of the crèche case “attempts were made and
influences were exerted to suppress information that was already in public
journals about how children can provide false information and fabricate
stories and that after the case discussion of the issues was shut down”. More generally, Ms Hood suggests there are
difficulties with obtaining defence experts in child sexual abuse cases
because of the way in which section 23G of the Evidence Act operates. Experts acquire their experience by working
for state funded programmes for the detection, treatment and prosecution of
child sexual abuse. These state funded
programmes are controlled by DSW, ACC and Family Court administrators who
“believe that child sexual abuse is an extremely serious and widespread
problem”. Under such administrators,
Ms Hood suggests professionals “who interpret most things children do or say
(or don’t do or say) as signs of sexual abuse” are bound to receive more referrals
than professionals who question such interpretations so that sceptical
experts with the knowledge and ability to challenge Dr Zelas and her
like-minded colleagues often lack the experience to qualify as experts under
section 23G. Those that do are often stigmatised by those with opposing views
and their careers are short-lived as a result.
Comment
Ms Hood does not appear to have spoken to the “unnamed justice department
official” and her account of the comment by ‘M’ is therefore untested. We have made some inquiries into the
matter, but there are obvious difficulties with investigating complaints by a
person who is not willing to come forward against persons who are
unnamed. Similarly, it is difficult to
comment on generalisations about the attitudes of the various employees of
DSW, ACC or of Family Court administrators since attitudes are likely to be
individual. In any event, it is
difficult to see how the comments by ‘M’ can point to any injustice in the
Ellis case since at the trial there was expert evidence for the defence from
Australian expert Dr Le Page and the case has been subject to a great deal of
expert scrutiny since.
(vii) The
Role of Social Workers “Gillanders” and Crossan
Ms Gillanders was a DSW social worker who was seconded to the crèche case in
May 1992. Her role was to support
crèche families involved in the Court proceedings. Ms Crossan was appointed by the
Christchurch City Counsel to support crèche staff and families. Their jobs involved liaison with Police,
counsellors, therapists, interviews of ACC staff, City Council and each
other.
Ms Hood is highly critical of both Ms Crossan and Ms Gillanders, suggesting
that they failed to remain neutral and made a substantial contribution to the
contamination of the children’s evidence.
Comment
Ms Hood’s account is based largely on interviews with parents which do not
appear to have ever been put to Ms Crossan or Ms Gillanders and are therefore
largely untested. In any event, all of
the charges in relation to which Mr Ellis was convicted relate to children
who had disclosed abuse prior to the appointment of Ms Gillanders and Ms
Crossan. On that basis, whatever the
truth of the matter, it is difficult to see how the involvement of
Ms Gillanders or Ms Crossan can be said to have caused a miscarriage of
justice in the case of these convictions.
(viii) Ritual
Sexual Abuse – Unusual Sexual Practice
Ms Hood claims that until now (by which we assume she means the
publication of her book) the role of a checklist of allegations compiled by
Californian therapist Pamela Hudson in ‘Ritual Abuse: Discovery, Diagnosis and Treatment’ has
gone unrecognised. The checklist is
based on a telephone survey conducted by Ms Hudson and contains a list of
types of physical or psychological abuse reported in ritual abuse cases. These include matters such as confinement
in cages, children being urinated upon or having to drink/eat urine or
faeces, live burial in coffins or caskets and babies or small children being
killed and children being threatened about what will happen if they tell anyone
about what has occurred.
Amongst the early interviews of the crèche children, were accounts by
children of Peter Ellis urinating on their faces and one child spoke of his
defecating in the bath, and two of the counts on which Mr Ellis was found
guilty relate to this conduct. In
later interviews, children gave increasingly bizarre accounts of behaviour
including, for example, a child being taken to a room with other curiously
dressed men and poked with sticks.
Other children also spoke of being stood in a circle and sexually
abused by a group. However, none of
these more bizarre incidents was the subject of convictions.
Ms Hood’s thesis is that the children’s accounts were contaminated by their
parents who had knowledge of Hudson’s
checklist. She also argues that
paedophilia and urophilia do not co-exist and therefore the children’s
account of Peter Ellis urinating on their faces cannot be correct. This argument is based on an e-mail she
received from Dr John Money, an international expert on sexual perversions,
in which he described paedophilia and urophilia as different and
non-overlapping perversions, as well as on a survey on internet pornography
conducted by market researchers from Carnegie Mellon
University and her own
survey of sexual abuse literature. She
concludes that perversions involving child sexual abuse and urine and faeces
exist “only in the fevered minds and imaginations of ritual abuse
investigators”.
There was evidence at the trial that Peter Ellis had spoken to crèche workers
and expressed interest in a sexual practice known as “golden showers” (an
activity where people urinate on each other).
The Court of Appeal found this lent weight to the children’s accounts
of Ellis urinating on them. Ms Hood
suggests this was wrong because urophilia is an adult sexual practice and not
one engaged in by paedophiles.
Comment
Pamela Hudson’s checklist was not referred to at the deposition and trial,
but there was extensive cross-examination of the parents of crèche children
about their knowledge of ritual sexual abuse.
In relation to the two children who spoke of Mr Ellis urinating on their
faces, the Court of Appeal observed:
“Counsel criticised the techniques used in the first interview suggestive of
prompting and attempting to get corroboration of offences on other
children. We do not think there is
anything of substance in these criticisms or in the fact that the boy’s
mother asked him early in 1992 whether Peter had ever touched children’s
bottoms; he then told her about the urination and the stick incident which
she had not heard of before. She was
closely cross-examined about discussions with others and with the child, and
about his association with other children, from which the jury would have
been able to make an informed judgment on the existence and extent of any
contamination of her son’s evidence.
There is nothing in her testimony to give us cause for concern on this
aspect.
We note in respect of the count involving urination that Ellis was also found
guilty of the same conduct in the toilet with child F, and that there was
evidence from one of the crèche workers that on three occasions he had talked
to her about a sexual practice known as “golden showers”, involving an
activity where persons urinated on each other in turns. She said he appeared to be interested in it
and that other adult sexual practices were discussed as well. In cross-examination the appellant denied
talking about “golden showers” but explained that he sometimes spoke of
unusual sexual practices as described by several crèche workers to shock or
“get a rise” out of them.
The Judge was clearly correct to allow evidence of his interest in these
unusual practices to be given: the
jury could see in the reference to “golden showers” support for his
conviction on the two counts involving that unusual practice, especially as
it seems unlikely that the two children could have made it up or learnt of it
from other sources”.
And of the second:
“In spite of her mother’s concerns giving rise to reservations about whether
she may have unduly influenced or suggested matters to the child, in the end
the jury must have been satisfied beyond reasonable doubt with the essential
truth of the accounts forming the basis of the charges. We would not be justified in setting aside
the convictions in the face of their advantage in seeing and hearing the
witnesses – a fortiori on the first count, in light of the accused’s
discussions about “golden showers” to which we have already referred under
child D”.
At the second Court of Appeal hearing, Mrs Ablett-Kerr produced Pamela
Hudson’s publication on ritual sexual abuse guidelines as an exhibit and
submitted that “it was to provide an almost blue print copy of the claims of
the children in the crèche case”. She
also submitted that the mother of at least one of the child complainants was
aware of the guidelines because she had written to investigators in August
1992 asking for Ms Hudson to be brought to New Zealand. A similar submission was made to the
Eichelbaum inquiry.
On that basis, the only aspect of Ms Hood’s account which could be said to be
new is the suggestion that urophilia does not overlap with paedophilia.
However, the book does not provide any basis on which it could be concluded
that paedophilia and urophilia cannot co-exist. Nor is it clear that there has been any
rigorous scientific research into the coincidence of urophilia and
paedophilia. In this respect, we note
that there is no reference in Dr Money’s e-mail to any research or study
undertaken by himself or anyone else.
(ix) The
Opportunity for Abuse
One of the other matters raised by Ms Hood is how abuse on the scale
alleged could have gone undetected for an extensive period. There were no signs of abuse, and while
some of the child complainants said they complained to crèche staff none of
the crèche staff accepted this. Ms
Hood argues that the staff ratios and comings and goings of parents made the
opportunity for abuse unlikely. The
door between the school room and the crèche toilets was almost invariably
open.
A house at Hereford Street featured in some charges, but the owner of the
house who had almost continuous occupancy had no recollection of visiting
apart from one occasion when a group came back with another worker to see Mr
Ellis’ animals which he kept at the back.
Comment
Issues about how the abuse could have gone undetected were canvassed
extensively at Mr Ellis’ trial and at his first appeal. Of the absence of complaints by children
the Court of Appeal observed that, if made, they may have been understood
only as objections to Mr Ellis’ tricking or boisterous play. As to the layout of the toilets, the Court
observed:
“The crèche toilets were at the centre of some serious allegations. There were three of them in cubicles with
separate doors off a lobby adjacent to the pre-school room with direct access
from the staff room, and there was evidence that the door between the school
room and toilets was almost invariably open, except perhaps on very cold days
and in the early morning. One toilet
was generally understood to be for adults and the other two for children, all
of whom were supposed to be toilet-trained before entering the pre-school
room. Some of them left the door open
at toilet; others would close it.
The only adult evidence of anything untoward in the toilet area came from a
former worker who said she saw the appellant emerge from the adult cubicle
with a little girl while she was waiting in the lobby, and she described him
as looking surprised and on the defensive.
There was nothing to indicate that the girl (who should have been
fully toilet trained) required any attention.
She asked him what the girl was doing in there and he replied that all
the toilets were full. She said it was
a summer day and most of the children and staff would be outside in the
yard. Although she thought the matter
strange she did not mention it to anybody, but realised its significance
after hearing of the charges and then told the police.
Another worker said she was aware of the appellant remaining in the adult
toilet for sometimes up to 5-10 minutes, but he explained that he was a
smoker and used it at times for that purpose.
The assistant supervisor confirmed she was aware of this practice. Another worker also referred to a remark
made by Ellis after his arrest to the effect that the games in the toilets
could look bad. She did not know then
what he was talking about and he explained that on occasions when children
were washing their hands before lunch he would shut some of them in the staff
toilet and they would bang on the door shouting to be let out.
The matters advanced by Mr Panckhurst about the design and operation of the
crèche do not persuade us that the abuse described by the children as
occurring there, and particularly in the toilets, could not have happened, or
that their evidence of it cannot be relied on”.
As to abuse away from the crèche, the Court noted:
“Nor do his submissions about lack of opportunity for abuse away from the
crèche when the children were taken on walks by the appellant. A maximum ratio of about one adult to five
children was aimed at on these expeditions, which were meant to be recorded
in a book by the staff member before setting out, but this may have been more
honoured in the breach than in the observance.
The appellant gave unchallenged evidence that on 75 percent of the time he
went on walks with another adult, the maximum duration averaging about one
hour ten minutes, but one worker said his walks were a minimum of an hour and
frequently up to two and a half hours.
There was no evidence that any of the children returned from such
walks in a distressed state or made complaints concerning them: rather they were a popular activity and
children were keen on them. There was,
however, the time and opportunity for abuse.
A house at Hereford Street featured
in some of the charges. This was a
large 2-storeyed older house where the appellant lived as a boarder from 30
December 1985 to 23 May 1987. For two
weeks in December 1986 he looked after complainant A while the crèche was
closed for the holidays, and she said that he touched her vagina at the house
and this formed the basis of the first count on which he was found
guilty. Four other children complained
of being taken to the appellant’s home where various forms of abuse occurred,
some of their disclosures being consistent with it occurring at the Hereford Street house
where he had formerly lived, although the appropriate counts referred to an
unknown address.
The owner of the house gave evidence of almost continuous occupancy and he
had no recollection of any crèche children visiting, apart from one occasion
when a group came with another worker and the appellant to see the latter’s
animals which he kept at the back. He
was unaware of the appellant returning after he vacated, while the Crown did
not suggest that any of his subsequent addresses were involved in the abuse
described, as they did not accord with the children’s descriptions. There seems to have been no problem about
travelling between the crèche and this house within the time expected for a
normal group walk from the creche”.
The Court summed up the submissions under this head with the observation that
although they called for careful consideration by the jury, there was nothing
which in itself rendered the accounts by the various complainants inherently
improbable or unworthy of belief.
Part III
In the third part of the book, Ms Hood examines (and criticises) the various
Court processes which took place as a result of the Christchurch crèche case,
including the prosecutions of five crèche staff and the Employment court
proceedings.
In relation to Peter Ellis’ convictions this included the depositions, the
trial and the two Court of Appeal hearings.
Ms Hood also examined the Royal prerogative process, the decision to
decline legal aid for an appeal to the Privy Council and the Eichelbaum
inquiry. Broadly, Ms Hood
concludes that the Royal prerogative process failed to operate as a safety
net in the Ellis case because section 406(a) of the Crimes Act 1961 is cast
in restrictive terms which did not allow the Court of Appeal to consider the
whole case. The Eichelbaum inquiry,
she contends, was similarly flawed because its terms of reference were too
narrow to enable Sir Thomas to consider the whole case and because Sir Thomas
and the two experts accepted the flawed ideology which underpinned the
international child sexual abuse awareness campaign. Finally, Ms Hood argues that both you and
Sir Thomas Eichelbaum “failed to acknowledge (and presumably realise)
that if the Royal pardon is to serve as a constitutional safeguard against
judicial mistakes the fact the judiciary refused to accept it had made
mistakes could never be a valid reason to deny Mr Ellis a pardon”.
Comment
This part of the book raises some general issues about the institutional
structures for appeals and the Royal prerogative process. It is beyond the scope of this report to
examine those issues which are in any event already being look at in other
contexts[xxiii][23]. For the purposes of this report the real
issue is whether the safety nets of the Royal prerogative process and the
Eichelbaum inquiry have failed Mr Ellis.
You will recall that the Eichelbaum inquiry was established to look into
those aspects of the case the Court of Appeal had suggested that it was
unable to fully consider. For that
reason it is useful to focus on Ms Hood’s criticisms of the Eichelbaum
inquiry.
Ms Hood argues that the terms of reference of the inquiry were deficient in
three main respects:
that Sir Thomas Eichelbaum was required to review the investigation into
events at the Christchurch civic crèche and interviews of the children “only
in terms of the evidence given at the depositions and trial”;
that many matters of public concern were not addressed, including whether the
decision to prosecute the five crèche workers was soundly based, whether
evidence was improperly admitted or excluded in the Court proceedings,
whether Peter Ellis had a fair trial, whether the children’s evidence was
credible; and given the layout and functioning of the crèche, whether the
abuse could properly have happened. In
a related criticism, Ms Hood argues that two important concerns raised in the
Thorp report were not addressed, namely the “sanitising” of the charges against
Peter Ellis[xxiv][24]
and the misleading effect of certain provisions of the Evidence Act[xxv][25];
that Sir Thomas interpreted the term “investigation” in a narrow way and
focused only on “the obtaining of evidence from the children” rather than the
police investigation as a whole.
We assess these criticisms below:
The Factual Basis for the Inquiry
You will recall that one of the main factors which influenced the shape of
the Eichelbaum inquiry was the impossibility of obtaining any better account
of the facts than was given at the depositions and trial. The inquiry was established almost 10 years
after the events at the crèche and views of those involved which were already
polarised at the time of the trial had become increasingly entrenched since
then. The problem was particularly
acute in the case of the children themselves.
Quite aside from the obvious distress a further factual inquiry would
cause them, it is difficult to see how the children could be expected to give
evidence now which is any more reliable than it was at the time of trial in
light of the intensive scrutiny and publicity about the case in the
intervening years. Equally, it is
difficult to see how any further factual inquiry could proceed without the
evidence of the children.
Ms Hood herself acknowledged the difficulties with an ex-post facto
investigation in her account of her investigation relating to the closure of
the crèche of which she said:
“…. Furthermore by the time I came to
investigate the matter, it was obvious that many of the people involved were
covering their backs. In the course of
my research I received so many conflicting accounts I was tempted to turn the
issue into a board game. The challenge
for players would be to decide who was lying and who was telling the truth”.
In our view, the suggestion that there should have been a further factual
inquiry (which is implicit in Ms Hood’s criticism) is quite unrealistic.
That Matters of Public Concern were not Addressed
The purpose of the Eichelbaum inquiry was to assess the safety of Peter
Ellis’ conviction rather than to address public concerns about the case. To this inquiry, matters such as the
soundness of the decision to charge the crèche workers were irrelevant. The crucial issue in assessing the safety
of Peter Ellis’ convictions is the reliability of the children’s evidence,
and it was on this issue that the Eichelbaum inquiry was focussed. The other matters suggested by Ms Hood as
making the inquiry too restrictive relate mainly to matters of process rather
than of substance. The process issues,
such as whether evidence was properly admitted or excluded, the impact of the
Evidence Act provisions and the so-called ‘sanitising of the charges’ were
largely irrelevant to the Eichelbaum inquiry because Sir Thomas and the
international experts were provided with all
of the relevant material, including the entire transcripts of both
depositions and trial, and the tapes of all of the conviction children[xxvi][26]
(including those not played at the trial) from which they could make their
own assessment.
Finally, we note that matters such as the layout and functioning of the
crèche were the subject of evidence at both the trial and the depositions and
therefore formed part and parcel of the Eichelbaum inquiry. Accordingly, we see no basis in
Ms Hood’s criticisms under this heading.
The Interpretation of the term ‘Investigation’
Ms Hood’s criticism under this heading is that Sir Thomas did not interpret
the terms of reference as to include a wide-ranging inquiry into the police
conduct of the case. This, she
suggests, can be compared with the prosecution of Arthur Allan Thomas and the
IRA bombing suspects in Britain
in which the judiciary found no merit in defence concerns that police
misconduct may have affected the reliability of the evidence.
That analysis is plainly incorrect.
While the focus of the inquiry was not on the police handling of the
case or indeed on whether any of the individual police officers involved
behaved improperly, the impact of the police conduct on the reliability of
the children’s evidence (in particular the possibility of contamination of
the children’s evidence through the involvement of Detective Eade) was an
integral part of the inquiry[xxvii][27].
As well as the criticisms of the terms of reference, Ms Hood is also
critical of Sir Thomas’ approach to the inquiry and his findings. For example, she suggests Sir Thomas
“failed to carry out reality checks on the children’s evidence and failed to
take seriously evidence showing the children’s evidence had been obtained by
pressure and manipulation”. However,
in the final analysis these criticisms amount to little more than that she
does not agree with the conclusions which were reached by Sir Thomas.
The Failure to Pardon
Ms Hood’s final criticism is that neither you nor Sir Thomas acknowledged
that if a pardon is to serve its function as a constitutional safeguard
against mistakes, the fact the judiciary refused to acknowledge that it had
made any mistakes could never be a valid reason to deny a pardon. In our view, this begs the question because
it has not been demonstrated that the judiciary has made a mistake.
The test for a pardon has never been clearly articulated. Sir Thomas Eichelbaum observed it would not
be appropriate to impose inflexible limits on its exercise, but he considered
a pardon would not be appropriate unless he was satisfied the convictions
were unsafe. It is certainly clear
that a pardon can no longer be granted on the basis of an arbitrary
monarchical right of grace and favour[xxviii][28]. In terms of New Zealand’s constitutional
framework, decisions on criminal prosecutions are entrusted to the
courts. While the Royal prerogative
exists as a safety net, it is a very serious matter in a society governed by
the rule of law for the Executive to overrule a Court decision. Such a step should only be taken if the
decision is demonstrably wrong or for some other good reason. This does not necessarily mean that the
Executive could not act to overturn a conviction unless there is new, and
legally admissible evidence, which shows the conviction is wrong, but it
would need to be demonstrated that there are matters of very real substance
which undermine the safety of the conviction.
The Ellis case has been the subject of a good deal of public anxiety
and concern created largely by the media portrayal of the case, and more
recently reinforced by Ms Hood’s book.
However, it needs to be remembered that neither the media nor Ms Hood
have had access to all of the evidence and in particular have not had the
advantage of seeing the children give their evidence. But it is the children’s evidence which is
crucial to the case.
Questions related to the reliability of the children’s evidence in the Ellis
case have been thoroughly examined by the Courts and by the Eichelbaum
inquiry.
Sir Thomas Eichelbaum concluded his inquiry with a reminder of the forensic
history of the case:
“… After the investigations and the interviewing there was an unsually [sic] exhaustive depositions hearing,
the record extending to more than 1000 pages.
Before being submitted to the jury the tapes and transcripts were
subjected to close scrutiny in contested pre-trial applications. In scope and number, the pre-trial
applications were exceptional (Judgment No.1 recorded that in preparation for
that hearing alone, in addition to reading the depositions the Judge had
viewed about 39 hours of tapes). The
points which this Inquiry has considered about the quality of the
interviewing, and the possibilities of contamination, were all traversed in
detail, and were the subject of a series of careful judgments in the High
Court. As a result of rulings before
and during the trial, some charges were dismissed. There was a long and thorough trial, at the
conclusion of which the jury had a lengthy retirement considering the
charges. After trial the pre trial
rulings, as well as all other aspects of the investigation, the interviewing,
and the trial process, were open for challenge in the Court of Appeal. The Court of Appeal considered the case
twice, once as a court of three judges in 1994, then as a court of five in
1999. Only one judge sat on both
appeals, so seven different Court of Appeal judges were involved. In the appeals, the merits of the
investigation and the interviewing were canvassed on broadly the same grounds
which have been urged before this Inquiry.
None of the judges was prepared to uphold the challenges. Appropriately, this background has not
prevented a further Inquiry into the same subjects. Full legal processes notwithstanding, the
occasional miscarriage of justice can occur, and the procedure of petitioning
the Governor-General, together with any resulting Inquiry, is available as a
further protection. What must be clear
is that Mr Ellis’ case has had the most thorough examination possible. It should now be allowed to rest”.
In our view, there is nothing in Ms Hood’s book which undermines Sir Thomas’
conclusion.
Val Sim
Chief Legal Counsel
Office of Legal Counsel
DDI: 64-4-494 9755
Fax: 64-4-494 9839
[1][1]
Ms Hood suggests the ideology of the time was based on the proposition that:
Child abuse is a widespread problem with serious long term consequences
All males are potential child molesters
High priority must be given to discovering and treating victims of child
sexual abuse and to convicting and punishing offenders.
The incidence is so high that any given accusation of molestation cannot be
dismissed as implausible but rather is highly probable.
Ms Hood suggests that the law changes were inspired by a political agenda
which was designed to secure a greater number of convictions to convince a
doubting public that child abuse was an overwhelming insidious evil in the
wake of the increasing number of false allegations of child sexual abuse.
[1][2] We doubt that the Child Protection workers involved would have
regarded themselves as vindicated.
Mason clearly found there were errors and omissions in the handling of
the A case.
[1][3] Ms Hood acknowledges that she approached the book with a particular
collection of beliefs, assumptions and educated guesses and tentative
conclusions about child sexual abuse (pg 70).
[1][4] Justice Williamson’s pre-trial ruling No3, in the Ellis case for
example, referred to the publicity surrounding the events in Coventry and
Cleveland and noted there was “wide-spread public knowledge of unsuccessful
prosecutions or public inquiries overseas which have resulted from hysteria
on the actions of hypervigilant parents as a counterbalance to the prejudice
that Mr Ellis might suffer because of the nature of the charges he faced and
the age of the children involved”.
[1][5] Section 185(A) Summary Proceedings Act 1957.
[1][6] Section 23D(i) Evidence Act.
[1][7] See Pipe, Henaghan, Bidrose, and Egerton ‘Perceptions of the Legal
Provisions for Child Witnesses in New Zealand [1996] NZLJ 18, 23-
referred to at pg 25 of the Law Commission report.
[1][8] See Davies, Wilson, Mitchell and Milson – Videotaping Childrens Evidence; An Evaluation (Home Office,
London 1995) 21, Jurors responses to
Children’s Evidence Given by Close Circuit TV or with the Aid of Removable Screens – Ministry of Justice
Strategic and Specialisation Services Division, Western Australia, and
Australian Law Reform Commission’s Report ‘The use of Closed Circuit Television for Child Witnesses in the ATC’
published in 1992.
[1][9] See Law Commission Preliminary Paper 26 ‘The Evidence of Children and Other Vulnerable Witnesses’ at pg
25.
[1][10] Sir Thomas’ view was contingent on an examination of expert
opinion. He did not in any way suggest
that the absence of a direction about the need for special care caused any
injustice in the Ellis case.
[1][11] Implicit in the Law Commission’s proposal is the proposition that
directions about the suggestibility of very young children may be helpful in
some cases. Some Judges have expressed
reservations about this on the basis that issues about the suggestibility of
children are matters for expert evidence, rather than for judicial
direction. Whatever the outcome of
this debate, in the Ellis case there was expert evidence about the
suggestibility of children from both Crown and defence and the proposition
that the children’s accounts had been “suggested” to them was one of the key
planks of the defence. Against that
background, it is unlikely that any direction by the trial judge would have
made a significant difference.
[1][12] Chapter 1, pg 53 Ms Hood cannot be using the term ‘evidence’ in its
ordinary legal meaning since the videotaped interviews of the children were
plainly evidence of child abuse.
[1][13] You will recall that the unlikelihood that the children could give
reliable evidence having regard to the lapse of time and polarisation of
views since the trial and the inevitable distress to the children were
factors influencing your decisions on the shape of the Eichelbaum inquiry.
[1][14] Ms Hood gives as an example of epidemiological personalities Dr Iben
Browning, a self proclaimed climatologist whose predictions of a catastrophic
earthquake resulted in schools and factories in the Mississippi being closed.
[1][15] Ms Hood gives as an example a case where an unnamed young woman
triggered an outbreak of hysterical pregnancies in a classroom of adolescent
girls (sourced to Richard Kerr, the Lessons of Dr Browning Science 253
(1991)) and an outbreak of phantom gonorrhoea in a Pennsylvania School
in the 1960’s.
[1][16] Pgs 198-200.
[1][17] Pg 200.
[1][18] For example, of Dr Zelas’ qualifications, Ms Hood says “Though she
does indeed have an impressively long string of qualifications after her
name, within her profession her qualifications carry less weight than one,
hard-earned fellowship of the Royal Australian and New Zealand College of
Surgeons”. (pg 121). Of her training
“Dr Zelas was pursuing her own fast track to expertise in a ten week study
tour of trends in the diagnosis and treatment of child sexual abuse”. Of her reputation for excellence Ms Hood
says “it is a product of her knowledge of other people’s work, her media and
networking skills and the sheer force of her personality”.
[1][19] See pg 448. Messages Ms Hood
says Karen Zelas imparted at seminars are that:
Child sexual abuse is an extremely dangerous and widespread problem.
Children who have been intimidated into silence are unlikely to
disclose voluntarily.
When subject to expert analysis apparently insubstantial and
unbelievable disclosures obtained through the use of persistent and leading
questions can be found to be reliable.
[1][20] 1994 Court of Appeal judgement pg 27.
[1][21] This ideology she suggests is based on the view that child sexual
abuse is a widespread and well hidden evil with serious long term
consequences, perpetrators rarely confess, physical evidence is hard to find
and abused children rarely disclose.
So the best way to uncover and treat this terrible problem is to find
non-disclosing children and make them disclose.
[1][22] Pg 367.
[1][23] In particular there is ongoing work on appeal structures in the
context of the project considering possible abolition of the Privy
Council. The Royal prerogative process
and possible models for dealing with miscarriages of justice are also under
review.
[1][24] This matter was considered by the Court of Appeal who rejected the
suggestion that this resulted in a miscarriage of justice.
[1][25] In particular, section 23(a) relating to expert evidence and section
23H which instructs judges not to direct the jury on the need to scrutinise
the evidence of young children generally with special care nor suggest to the
jury that young children generally have tendencies to invent or distort. Sir Thomas Thorp did not suggest that the
Evidence Law provisions resulted in a miscarriage of justice, but did say
that consideration should be given to reforming the law in this area.
[1][26] Ms Hood cites a passage from the report to the effect that
international experts were only supplied with ‘relevant’ material and
concludes that they were not supplied with all materials such as the evidence
called by the defence. That is not
correct. The international experts
were supplied with the complete transcripts, including the defence evidence.
[1][27] For example, Sir Thomas Eichelbaum noted Detective Eade’s visits to
the homes of some children prior to the interviews when considering possible
contamination of the evidence and Detective Eade’s role as monitor when the
evidential interviews took place.
[1][28] See Burt v Governor-General.
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