The Christchurch Civic Crèche Case
	Law Reform Index
	Law of Evidence - Section 23G
	The New Zealand Law Journal October 2001 Citation: [2001] NZLJ 359 ISSN 0028-8373, p359-361 Book Review The Christchurch Civic Crèche Case Ian Freckelton, Barrister, Melbourne reviews L Hood, A City Possessed, Longacre Press, Dunedin, 2001, 672 pages. Lynley Hood, well-known to readers from her 1988 work about New Zealand writer and educationalist, Sylvia Ashton-Warner, and her 1994 work about the only woman to be hanged in New Zealand, the baby-farmer Minnie Dean, has produced a disturbing analysis of the Christchurch Civic Creche case. It is guaranteed to be highly controversial and to distress, confront and offend many within the child protection, victims and feminist spheres, as well as some within legal circles. However, the responses likely to be elicited by A City Possessed have the potential to be both constructive and cleansing if they act as the catalyst for a reflective examination of how allegations of child sexual assault and in particular ritual sexual assault can most effectively be dealt with by the criminal justice system. The Book A City Possessed is a substantial work indeed, running to some 672 pages. It is a scholarly tome, in the sense that it locates the Christchurch scandal within an historical, sociological and criminological context and refers to many learned analyses of moral panics, comparable episodes internationally and relevant professional writing on the investigation of child sexual assault. Fundamentally, however, Hood seeks to chronicle what occurred in the lead-up to the "disclosures" by the children at the Christchurch Creche and then to track through what occurred during the investigation, the trials, the appeals and the subsequent inquiry. In doing so she raises many questions about the child protection, criminal investigation and criminal trial systems. Some are of specific, finite dimensions, such as the justifiability of s 23G of the Evidence Act 1908; others are broader, such as how professionals can work together to investigate and then evaluate children's abuse disclosures more effectively. The Story It was in 1991 that arguably New Zealand's most difficult police investigation commenced when the parent of a child attending the Christchurch Civic Child Care Centre stated her suspicion that an experienced but eccentric and attention-receiving worker, Peter Ellis, may have been involved in inappropriate sexual behaviour around her son. Ultimately, over 100 children were interviewed by sexual abuse workers from the Department of Social Welfare. Ellis, together with four female colleagues at the creche, faced charges relating to the period 1986 until 1992. Ellis was alleged to have inserted his fingers, his penis, needles, sticks and food into the vaginas, mouth's and anuses of children in his care. He was accused of urinating on them and coercing them into drinking urine and eating faeces. Another worker was alleged to have inserted her finger into a child's vagina and to have engaged in sexual intercourse with Ellis in the creche toilets. Three others were accused of participating in what became known as "the circle incident", an occasion when sticks were supposed to have been inserted in children's anuses and when children were prompted by the workers to kick each others' genitals and to perform a variety of indecencies. The Legal Process All five accused persons were committed for trial after an 11 week preliminary hearing but by the time the case reached the High Court, only Ellis remained, facing 28 charges involving improprieties alleged to have been committed against 13 children. Three charges were dismissed in the course of the trial. After a trial of 29 days, a jury of nine women and three men found Ellis guilty on three counts of sexual violation, eight counts of indecent assault and five counts of performing, or inducing children to perform, indecent acts. He was sentenced to ten years' imprisonment. Fourteen months later, a child described by the Crown as "compelling and believable" retracted her allegations, saying she had lied because she had thought that was what her mother had wanted her to say. This resulted in the Court of Appeal quashing the convictions for the three counts relating to the child but upholding the remaining 13 convictions and declining to interfere with the sentence imposed upon Ellis (R v Ellis (1994) 12 CRNZ 172). In 1999 a further appeal was launched to the Court of Appeal which convened in a bench of five (R v Ellis [1999] NZCA 226). It heard new evidence and fresh arguments but declined to interfere with its previous decision. In 2000 the Attorney-General commissioned the former Chief Justice, Sir Thomas Eichelbaum, to investigate "matters relevant to the assessment of the reliability of the children's evidence". He enlisted the assistance of further experts from Britain and the United States. He was required to consider reports from the Cleveland Inquiry, the Orkney Inquiry, the San Diego Grand jury, the New South Wales Royal Commission, a New Zealand Law Commission Discussion Paper and the United Kingdom Memorandum of Good Practice, as well as the joint New Zealand Children and Young Persons Service and Police Operating Guidelines. In 2001, his conclusion was announced. It was that a pardon was contra-indicated and that the evidence did not establish that the convictions individually or in the aggregate were unsafe. By this stage, Ellis had been released from custody, having served his sentence. The Reaction It is fair to say that the Christchurch Creche saga has polarised and unnerved New Zealanders, and many in other countries, for the better part of a decade. Its subject matter is salacious, emotive and frightening. The idea that a group of workers at a place where parents entrust their young children could have preyed upon them sexually is terrifying. So too is the potential that circumstances may have children having made extremely serious allegations against an innocent man. However, the allegations raised in Christchurch are of an ilk encountered in a number of countries previously. The benefit of hindsight and the work of writers such as Paul and Shirley Eberle (The Abuse of Innocence: the McMartin Preschool Trial, Prometheus Books, Buffalo, 1993) has exposed nearly all such cases as the product of moral panics, media hysteria and ill-executed investigations. The result has been immense damage not just to the persons directly involved but also to the reputation of child protection systems and confidence in the criminal justice system. Hood's Approach Hood's approach is far from the "disinterested observer" style of documentary. She even became caught up as a player in the final appeal to the Court of Appeal as lawyers representing Ellis sought access to tapes of interviews that she conducted in preparation for the manuscript. The years that Hood has devoted to research on the case have left her with strong views which repeatedly intrude into the text, sometimes with a journalistic propensity to view things as occurring with inevitability, sometimes with a disappointing tone of sarcasm and bitterness. Some readers will find that Hood's passionately felt views about a miscarriage of justice detract from her credibility as a reliable historian. However, she is open about her stance. Hood recites that when she commenced her research, the key question upon which she focused was the extent to which the staff at the Centre had been involved in child sexual abuse. However, ultimately she became convinced that no illegality whatever had occurred - "Instead, I found convincing evidence that more than 100 Christchurch children had been subject to unpleasant and psychologically hazardous procedures for no good reason, and that a group of capable and caring adults with no inclinations towards sexual misconduct with children had had their lives ruined as a result. The disquieting outcome drew my focus from the creche to the forces that had brought about its downfall. By the time I came to write this book the key question I faced was this: how on earth did the complainant families, the child protection services, the justice system and the government get it so wrong?" (p 33-34.) Hood uses the Christchurch Creche case as a vehicle for commenting widely on related issues, sometimes too widely and not as informedly as might be desirable. An example is her less than accurate analysis of the current professional view of post-traumatic stress disorder: "Because this grab-bag of symptoms is as unoriginal as it is all-encompassing, many mainstream psychiatrists regard PTSD as a fashionable collage rather than a genuine disorder. . . . This 'post-traumatic' explanation encourages disaffected individuals to blame their troubles on some past trauma, even if no objective evidence of any such trauma can be found". (p 64.) There is a degree too to which she unfairly singles out psychiatrist Dr Karen Zelas for adverse comment. However, this is a view with which reasonable people could disagree. More importantly, perhaps, this reviewer felt that at times Hood's concerns about over-diagnosis of child sexual assault led her to minimise the incidence of the phenomenon and the seriousness of its sequelae, particularly for adults who do not display primary or overt later symptomatology. However, the bottom line of Hood's plea is for calm, scientific evaluation of complaints of childhood abuse. Few would disagree that this is the appropriate environment within which serious criminal allegations should be assessed. A City Possessed has two particular strengths. The first is its chronicling of events leading up the disclosures made by the Christchurch Creche children. Hood meticulously recounts the visits of persons to New Zealand such as Astrid Heger, the paediatrician who mis-diagnosed child sexual abuse in the McMartin preschool case in California in 1988, and the so-called Satanic ritual abuse expert Pamela Klein in 1990. She records oscillations in the reporting of child sexual abuse, identifies a series of factors ("sex, sexism and the new demonology") that could have led to the too ready reception of the complaints as they evolved in the Christchurch case, and, controversially, profiles the background of a series of the parents at the creche in child protection, suggesting that these played a role in how events transpired. She contends that a series of beliefs had come to hold sway in New Zealand prior to the Christchurch allegations coming to light which, she argues, contributed to the uncritical acceptance of the first complaints that were made and an unpreparedness to acknowledge the degree of contamination of the children's disclosures which was evident from the first. These beliefs she identifies as: child sexual 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 improbable; rather, it is highly probable. (p 70.) The second strength of the book is that it makes public many of the words of the children. One seriously recounted the presence of a giraffe in his house. Another detailed her memories of being in an incubator when she was born. Another told of being thrown down trapdoors at a Masonic Lodge and put in coffins which were buried in graveyards. He said too that Ellis had anally penetrated him, "made him do poohs in the bath" and eat them, and that someone put a needle up his penis which made it bleed. In spite of these and a myriad of other bizarre and suspicious allegations, no corroboration ever became available. Yet the allegations were acted upon, believed, and resulted in convictions. Hood takes the reader inside the investigative process, the trials and even the appeals. It is an absorbing experience. Doubtless, though, the accuracy of her observations and her accounts of the various stages of the investigation and of the legal initiatives will be debated at length. To a degree, the final section of the book, which is devoted to a critique of the Eichelbaum Report, is unsatisfying. It has the feeling of having been added on at the end by an author keen after many years to achieve closure on the project. This is not to say that the points made in the chapter are without merit, simply to observe that the chapter does not constitute a comprehensive attempt to pull together the many different threads that had been woven in the preceding pages. The opportunity to do more than make the easy call for a Royal Commission is lost and thereby the chance to make constructive suggestions as to how a repeat of the Christchurch Creche case could be avoided in the future. Analysis The Christchurch Creche case and Hood's analysis of it highlight the difficulties posed for the criminal investigative and justice systems generally by allegations of physical and sexual abuse made by children. It is now apparent that considerable care needs to be employed in evaluating the "child sexual abuse accommodation syndrome" coined by Roland Summit in the 1980s. So too does circumspection need to be employed in uncritically believing allegations proffered by children, particularly in circumstances where their "memories" may have been contaminated or when they are made in the course of matrimonial disputes or in the context of ritual abuse allegations. Finally, caution needs to be brought to any suggestion that because there is over-representation of certain kinds of self-harming or damaged behaviours in the wake of sexual and physical abuse, those who display such behaviours have been abused, or abused as they allege. Child sexual abuse is one of the most confronting phenomena for all of us who work in the criminal justice system. It is frightening, distressing and corrosive for all who come in contact with it. It has also been the subject, as Hood establishes, of a series of moral panics in western societies in the course of the 1990s, as well as in earlier times. The impact of such panics can be to reduce the capacity of child protection investigators, police and even prosecution authorities to evaluate evidence scientifically, calmly and objectively. Certainly, child centre cases internationally have yielded embarrassing perspectives for 15 years, with a series of bizarre and unfortunate miscarriages of justice taking place. Conclusion Hood's A City Possessed will take its place as a major account of a case that gripped popular imagination for nearly a decade. Undoubtedly, this book will play an important role in ensuring that the fallout from the saga does not end prematurely. It should focus our attention upon necessary reforms. There is much to be learned internationally from how New Zealand handled this exceptionally difficult series of allegations against Peter Ellis and his co-workers. Whether, as Hood maintains, the approach of a trial judge, eight judges of the Court of Appeal and a retired Chief justice of New Zealand establishes that a Royal Commission into the criminal justice system is necessary is open to doubt. However, better should have been done early in the sorry tale. Adoption of rigorous guidelines, modelled upon those in place in Britain, may well have been constructive. In the end, nothing can remove human fallibility when subjects as sensitive as multiple sexual abuse are canvassed. When a criminal investigation is fanned by understandable panic by parents and sensationalist media coverage, there is always the potential for the processes to miscarry. When early investigations go awry, when contamination of evidence is not identified at the first juncture, the difficulties can become self-generating and the potential grows for misevaluation and for public anxiety to generate decisions based upon fear, prejudice and suspicion. The legal way back from such initial decisions is not easy. Appellate Courts are not and should not be an opportunity for retrials. A City Possessed is a well-constructed and exhaustively researched account of one of the most important episodes in New Zealand's criminal justice history. It is well edited and accessibly presented. Few will read the book without disagreeing with some part of it and without experiencing a sense of alarm. But the eliciting of such responses is not the sole measure of the worth of Hood's work. A City Possessed fulfils an important role in chronicling evolving community attitudes and a time of social anxiety about the previously under recognised phenomenon of child sexual abuse. Its account of the preliminary hearing, the trial of Ellis, his two appeals and finally of the inquiry into the convictions is accessible, readable and engaging. Hood invests the principal players with personalities and profiles that enable the reader to place a perspective upon events that took place over the many years in which the case has figured in New Zealand's headlines. Hood's contribution to understanding of the complexities of investigation into sexual abuse, in particular ritual sexual abuse allegations, is substantial. A City Possessed is a gripping and controversial analysis of a legal and social phenomenon that has the potential to confront all of us. The challenge left to us is what can be done to ensure that the errors made and the human trauma caused by the Christchurch Creche controversy will not be repeated. A City Possessed should be compulsory reading for lawyers in the criminal and family law areas, child protection workers and mental health professionals. It is likely also to be devoured within the general community still trying to come to grips with the legacy of a decade of headlines about Ellis and the Christchurch Creche. Hood's courage in robustly presenting her version of the tale and in seeking to learn from it should inspire all of us to reflect soberly and thoughtfully about how child protection, criminal investigation and legal procedures can be improved. Hard cases, researchers' persistence and independence, and difficult issues provide opportunities which should not be lost.