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11
October, 2003 Creche
case petitioners' response to MOJ submission 11 Oct 2003 1. This
submission was prepared by Lynley Hood, author of A City Possessed: the 2. For
advice on the court proceedings relating to the Christchurch Civic Creche
case, the petitioners suggest that the committee consult the key parties
involved. In addition to those involved in the investigation and prosecution,
people who could make useful contributions include: Peter Ellis - convicted
creche worker; Gaye Davidson – crèche supervisor; other creche staff; Gerald
Nation - senior counsel for the women crèche workers who were arrested and
charged; Peter Lawson - secretary, Southern Local Government Officers Union,
counsel for a creche worker in the employment court; Rob Harrison - senior
counsel for Ellis at depositions and trial, junior counsel at the first
appeal; Graham Panckhurst QC (now Justice Panckhurst) - senior counsel for
Ellis at the first appeal, senior counsel for the creche workers in the
employment court; Hans van Schreven - junior counsel for the creche workers
in the employment court, senior counsel in the employment appeal; and Judith
Ablett Kerr QC – senior counsel for Ellis in petitions to Governor-General
and the second appeal. 3. There
are also many well-qualified national and international experts who could
advise the committee on the wider issues raised by the creche case. These
issues include: the suggestibility and imaginativeness of children; the
characteristics and social dynamics of mass hysteria; the international
spread of ritual abuse allegations; the ideological divide between reliable
science and impassioned advocacy; the causes of miscarriages of justice (and,
in particular, the phenomenon of 'noble cause corruption' among
investigators, prosecutors and experts). Summary Impact on the child
complainants and their families The memory wars Issues requiring
independent examination Some matters
never fully and properly examined The police investigation The Crown's expert witness's multiple roles Some
matters never examined at all Irregularities in the making of laws &
regulations Failure to grant legal aid for a QC at trial Reshaping the indictment Key evidence withheld in Lack of satisfactory
alternatives Privy
Council Referral
to Court of Appeal Inquiry
presided over by a Should a pardon precede or
follow a commission of inquiry?
4. The focus of this petition is on the
investigative and legal processes relating to the 5. The quality of ministerial advice: 6. Parameters of the proposed inquiry: 7. What the inquiry would achieve: a. When
there is widespread public and professional concern that the justice system
has failed and has been unable to self-correct, a robust, independent Royal
Commission of Inquiry would address the concerns raised, and thereby restore
the credibility of the justice system. b. An
independent public opinion poll commissioned by The Press found that 68% of Cantabrians support the call for a
Royal Commission of Inquiry. It is therefore reasonable to suppose that an
inquiry would satisfy around 63% of Cantabrians (and presumably a comparable
percentage of the wider population) regardless of the outcome. The
petitioners accept that achieving universal satisfaction is unlikely, but
achieving a satisfaction level of around 68% would be a significant
improvement on the current satisfaction level of 17%. 8. This submission expands on the following
points; a. The
impact of any re-examination of the creche case on the child complainants and
their families; b. The
rift between scientific and clinical psychologists known as 'the memory
wars'; c. Some
of the issues which, when subject to independent review, could have a material effect on the outcome of the
creche case; and, d. The
lack of satisfactory alternatives for addressing the concerns raised.
9. The
petitioners share the ministry's concern for protecting victims of crime. But
in this case there is considerable doubt as to whether any crime was
committed. While the complainants and their families are certainly victims,
the petitioners' concern is that they may be victims of the bungled
investigation into a crime that never happened. 10. If
an inquiry establishes that no crime was committed, the children and their
families will benefit twice over: first, they will have the assurance that their
children were never sexually abused; and, second, the public agitation will
dissipate. 11. The
petitioners share the ministry's concern for the well-being of the child
complainants. The petitioners are particularly concerned that two
complainants who were recently the subject of media reports appear to have
been led to believe that they are being blamed for the creche case. The
petitioners wish to make it clear that, in their view, the child complainants
are in no way to blame for any aspect of the case. 12 The
history of this case (and of other high-profile miscarriages of justice here
and overseas) shows that attempting to ignore public disquiet will not make
it go away. This petition is yet another manifestation of more than a decade
of public and professional concern about the creche case. If this petition
does not result in a commission of inquiry, the public disquiet will
continue. The longer the government delays addressing the issues raised, the
longer the distress and confusion for the complainant children and their
families (and everyone else involved) will continue. 13. According
to media reports, two complainants continue to believe that they were abused
by Peter Ellis. Whether any of the other complainants still believe in his
guilt is unknown. In any event, the fact that some complainants still believe
in EIlis's guilt is no reason to refuse to address the concerns raised, any
more than the fact that the complainant in the Dougherty case firmly believed
in Dougherty's guilt was reason to refuse to address the concerns raised in
his case. 14. The
petitioners know of children involved in this and other sexual abuse cases
who have retracted past allegations but who wish to keep their retractions
secret. Many retractors fear that they or their parents will suffer legal or
financial sanctions if their retractions become known (e.g. that they may be
charged with perjury or with wasting police time, or may have to repay their
ACC lump sum compensation). The petitioners urge that measures be put in
place to ensure that anyone who wishes to retract a childhood sexual abuse
allegation may do so without suffering any legal or financial sanction. 15. Some
non-complainant crèche children from troubled backgrounds have been
counselled by therapists who have encouraged them to believe that they were
abused by groups of adults in the course of bizarre rituals, even though no
tangible evidence of these rituals has ever been found. Therapy of this sort
has been shown to make disturbed and vulnerable clients depressed and
suicidal. For the sake of these young people, an inquiry into the discredited
and dangerous therapeutic beliefs that underpinned the creche case is
urgently needed. 16. The
overwhelming majority of creche children and their families have positive
memories of the Civic Creche. They are distressed at the damage done to the
careers and reputations of some highly-regarded childcare workers. They want
the wrongs to be righted. Their needs and concerns should be taken into
consideration. 17. If
an inquiry investigates procedures whereby investigators, prosecutors and the
courts may more reliably distinguish between true and false allegations of
sexual abuse, the risks to small children of having their lives thrown into
turmoil for no good reason will be greatly diminished, and all children will
benefit as a result. 18. The
complainant children and their families aren't the only ones who want the
crèche case to go away. Everyone wants it to go away. The need for a full and
independent inquiry is overwhelming and urgent.
19. Because
of the influence of psychological theories on the policies and procedures
used to investigate and prosecute allegations of child sexual abuse over
recent years (an area in which decision-makers were previously free to use
their commonsense and life experience), any review of the creche case needs
to take into account what has become known as 'the memory wars' between
scientific and clinical psychologists. 20. Broadly
speaking, scientific psychologists gain their insights into the fallibility
of memory from experimentation, while clinical psychologists gain theirs from
observing their clients. Clinicians question the applicability of laboratory
findings to real life; scientists argue that clinical observations are
inevitably compromised by the clinician's personal biases. In research data
that confirms the everyday experience of parents and teachers, scientists
have found that children are more suggestible and imaginative than adults.
This finding indicates that, while children's allegations of sexual abuse
should be taken seriously, they should not be believed without question.
Despite the scientific evidence, many influential clinical psychologists (and
other mental health specialists) insist that children who make allegations of
sexual abuse should be believed. 21. Ideally,
decision-makers in search of expert advice on the fallibility of memory
should consult scientists. However, over recent years decision-makers within
the justice system have consulted only clinicians. Consequently the justice
system now has a systemic anti-science bias on sexual abuse issues, As a
result, sweeping claims about the reliability of child testimony tend to be
accepted as fact, and important scientific findings on issues of suggestibility
and contamination are often minimised, discredited or ignored by
decision-makers and their advisors. 22. Examples
of the anti-science/anti-commonsense bias within the justice system and
related agencies can be found throughout the Christchurch Civic Creche case.
e.g, a. There
is an abundance of reliable research showing that the availability of lump-
sum compensation increases the risk of insurance fraud and encourages genuine
claimants to maximise their agony in order to maximise their gain. At the
time of the creche case, ACC provided lump sum compensation for alleged
sexual abuse victims more-or-less on demand. Though charges were laid in
relation to offences against 21 Civic Creche children and guilty verdicts
were entered in relation to seven, more than 40 creche children received lump
sum payments of $10,000 (or multiples of $10,000) from ACC. In the course of
my research for A City Possessed, I
interviewed a solo mother whose child had disclosed no abuse by any creche
worker. Other meeting with an ACC-funded counsellor, she recalled: "This
counsellor said, 'You know you can claim $10,000 from ACC.' She didn't say
'up to', she just said '$10,000'. I was on the benefit and that was a lot of
money. Everyone was doing it. I didn't have a problem. Where do I sign? No
problem. None whatsoever." b. There
is compelling evidence in the scientific literature that 'abuse-focussed
therapy' encourages the creation of false memories in both abused and the
non-abused subjects. Furthermore, research shows that, instead of relieving
emotional distress, 'abused focussed therapy' actually exacerbates it.
Nonetheless, at the time of the creche case, many ACC-funded counselors
routinely urged their clients to remember and talk about every repugnant
detail of the alleged abuse whether they wanted to or not. Furthermore,
despite the scientific literature, ACC is still promoting and funding the
same discredited therapy. The details of this therapy can be found in ACC's
official Therapy Guidelines for Adult
Survivors of Child Sexual Abuse, which were distributed to all ACC-funded
counsellors in 2001. c. S.23G
of the Evidence Acts allows clinicians (but not scientists) to give expert
evidence in child sexual abuse cases. It also permits expert witnesses to
make scientifically-baseless claims about the alleged behavioural
characteristics of child sexual abuse. [Evidence Amendment Act 1989] d. The
Department of Social Welfare (DSW) reviewed its sexual abuse investigation
policy at the time of the first allegation in the creche case (November
1991). Under the heading 'Truth', the review report stated: 'It was generally
agreed that the guidelines need to continue to stress that all complaints
must be presumed to be true.' [Review
of Sexual Abuse Investigation Policy and Evidential Interviewing Guidelines:
Consultation with Service Providers (Wellington, DSW, 5 March 1992)] e. Prior
to any disclosures being made in the creche case, the police organised a
meeting for creche parents at which DSW interviewer Sue Sidey advised them to
watch their children for symptoms of sexual abuse. The alleged symptoms she
listed were actually normal preschool behaviours such as bed wetting,
clinginess and tantrums. [notes, R. Dally, f. At
the Ellis trial, Crown Solicitor Brent Stanaway presented unscientific
explanations for evidence that the jury was likely to find 'bizarre or
unbelievable or unconvincing' (e.g. he explained away the interviewers'
relentless questioning by claiming that children say 'don't know’ and 'can't
remember' when they want a question repeated). [R v Ellis, Crown opening address] g. The
alleged 'behavioural characteristics of child sexual abuse' presented to the
Ellis jury by Crown expert witness Dr Karen Zelas included common childhood
behaviours like mood disturbances, tearfulness, stomach aches, anxiety,
reluctance to go to bed and hostility to parents. [R v Ellis, trial transcript] h. At
the second Ellis appeal in 1999, when counsel for Ellis presented research
data demonstrating that experts cannot distinguish between true and false
allegations of child sexual abuse, Justice Thomas expressed confidence that
Dr Zelas could in fact do so. In addition to being a worrying indication of
the Court of Appeal's belief in the omniscience of Dr Zelas at that time,
Thomas's claim highlights the court's apparent reluctance to understand and
apply psychological research of direct relevance to its work. [TV3 videotape] i. During
the establishment of the Eichelbaum Inquiry into the Ellis case, Ministry of
Justice Chief Legal Counsel Val Sim recommended that Sir Thomas phone Thomas
Lyon, a law professor at the University of Southern California, for advice on
choosing experts to assist his inquiry, even though Lyon was well known for
his attacks on internationally acclaimed memory researchers Stephen Ceci,
Elizabeth Loftus and Maggie Bruck. [MOJ file note, 13/6/00]
23. The
Ministry of Justice submission states (p.24, paragraph 109) 'the onus is on
the petitioners to make out a cogent case that there are relevant and
significant matters that have not already been fully and properly examined
and which could have a material outcome on the case'. 24. In
the petitioners' view, the concern that some relevant and significant matters
have never been fully and properly examined is only part of the problem.
Another part is that some relevant and significant matters have never been
examined at all. But the main problem is that the entire case has never been
fully and properly examined. Further, because every element in the matrix of
people and events that constitutes the creche case is connected, directly or
indirectly, to every other element, identifying individual matters worthy of
closer examination can only take us so far. It is the petitioners' view that
the concerns raised can be properly addressed only by a full examination of
the whole case. 25. In
response to the Ministry of Justice submission, a few examples are provided
below of matters that have never been folly and properly examined, and of
other matters that have never been examined at all. These examples have been
chosen because they are relatively straightforward. Many other examples could
have been provided (e.g. about police behaviour, about which videotapes were
shown or not shown to the jury, and about how the trial judge's rulings
hampered Ellis's defence), but such matters would require longer and more
complex explanations. 26. Some matters never fully
and properly examined by any court or inquiry i. Depositions and pre-trial hearings
(1992-93): ii. Ellis Trial (1993): iii. Women's Costs Application (1993): iv. First Ellis Appeal (1994): v. Employment Court Case (1995): vi. Crown Law Office Briefing Paper To
Attorney General (1995). vii. Employment Court Appeal (1996): viii. TV3 20/20 Programme (1997); ix. Ellis's First And Second Petitions For
The Royal Prerogative Of Mercy (1997, 1998): x. Second Ellis Appeal (1999): xi. Eichelbaum Inquiry (2001): xii. In Summary: b. The Crown Expert Witness's
Multiple Roles; 27. Some matters never
examined at all by any court or inquiry a. Irregularities in the
making of laws & regulations relating to Children's Evidence in Sexual
Abuse Cases i. Evidence, Crimes & Summary
Proceedings Amendment Acts 1989: (1) Gave
sexual abuse interviewers in video-recording studios outside the courtroom
the power to pre-record the evidence-in-chief of young children with neither
judge nor counsel present [s.185CA Summary Proceedings Act, S.23E Evidence
Act]; (2) Allowed
sexual abuse interviewers to obtain the evidence-in-chief of young children
using leading and coaxing [R v Lewis
1991 1NZLR409], (3) Removed
the right of the accused to face their accusers in court [s.185CA Summary
Proceedings Act, S.23E Evidence Act]; (4) Restricted
the extent of defence cross-examination of child complainants [s.23E & F
Evidence Act], (5) Allowed
sexual abuse experts to base their evidence on clinical experience rather
than scientific research [s.23G Evidence Act]; (6) Allowed
sexual abuse experts to comment on matters that were for the jury to decide,
['[expert evidence] will usually be especially important in assisting the
jury to evaluate the truth of the complainant's evidence.' R v Tait 1992 2 NZLR 666]; (7) Limited
the ability of judges to warn juries about the absence of corroboration
[s.23H Evidence Act]; (8) Prevented
judges from commenting on the tendencies of young children to invent or
distort [s.23H Evidence Act]. ii. These
radical legislative changes were prepared without the benefit of open
scrutiny or debate, and introduced into parliament embedded in the 1988 Law
Reform (Miscellaneous Provisions) Bill. This is an omnibus piece of
legislation - described by Minister of Justice Geoffrey Palmer as a
'washing-up Bill' - contained 202 clauses affecting more than 50 different
Acts (covering everything from race relations to wandering stock). It was
introduced into parliament late at night, under urgency, on the last
scheduled sitting day before Christmas 1988. (Coincidentally, that was the
night that the feud between Prime Minister David Lange and Finance Minister
Roger Douglas over the speed and stealth of the government's legislative
reforms reached flashpoint, so most members of the press gallery were staking
out their offices rather than sitting in the House that evening. Roger
Douglas resigned next day.) iii. Three
days before Christmas 1988, newspaper readers were advised that persons
wishing to comment on the Law Reform (Miscellaneous Provisions) Bill should
send 20 copies of their submissions to the Justice and Law Reform Committee
by 3 February 1989. Though the Acts to be amended were listed, no information
was provided on the nature of the amendments, or where such information could
be obtained. iv. Eight
of the 11 submissions on the amendments to the Crimes, Summary Proceedings
and Evidence Acts came from the promoters of those amendments. Three further
submissions arrived too late to be considered. v. The
amendments relating to children’s evidence were reported back to the House
essentially unchanged. They sped through their second reading still embedded
in the Law Reform (Miscellaneous Provisions) Bill. They were passed into law
in November 1989, almost unnoticed by the wider community [p.97-100, 104-107,
111-114.A City Possessed]. vi. These
radical legislative changes have been widely criticised as eroding the rights
of the accused to a fair trial. In the petitioners' view, the manner in which
the legislation was passed raises concerns of the sort raised by the Court of
Appeal in relation to the Criminal Justice Amendment Act 1999: vii. Regulations: Providing for the approval of interviewers or classes of interviewers
in such cases, providing for the proof of any such approval to be by
production of a certificate and prescribing the form of that certificate ... While
this provision may be open to various interpretations, it carries a clear
implication that persons are authorised to be interviewers only when they
have been 'approved' in terms of the regulations. It is therefore of concern
that no regulations have been made pursuant of this provision. The absence of
any such regulation raises serious questions about the legal status of
specialist sexual abuse interviewers and the videotaped interviews they
record. viii. Peter
Ellis was convicted solely on the videotaped evidence and videolink
cross-examination of seven young children (one of whom later retracted her
allegations). At depositions and trial, the interviewers outlined their
academic qualifications and work experience, and stated that their interviews
were conducted in accordance with the Evidence (Videotaping of Child
Complainants) Regulations 1990 of the Evidence Amendment Act 1989 (these
regulations provide for the manner in which tapes are to be made and stored,
but have nothing to say about the approval of interviewers). At no stage
during depositions or trial did any interviewer, judge or counsel question
whether the interviewers had the statutory authority to conduct those crucial
interviews. b Failure To Grant Legal
Aid For A Queen's Counsel To Defend Ellis At Trial: i. "It
was clear that this case was far beyond the norm, and that Peter was going to
need expert legal help. But we got a very, very negative response from the
[District Legal Services] subcommittee. Firstly, on the grounds that the case
was nothing out of the usual and therefore extra consideration was
inappropriate. Secondly, Rob [ ii. "I
had more than one conversation with [High Court Registrar] Fantham about it.
I kept saying, 'Look, this case is huge. You've got to let Nigel take it.'
He'd just say, 'You can't have Nigel Hampton. You're not entitled to counsel
of choice. If you don't want the case I'll give it to the next person on the
legal aid list.' By then we were getting close to trial. I talked it over
with Nigel and Peter. I knew the case really well. I felt I could do it if I
had to. In the end we decided there was really no choice. So Nigel withdrew
from contention, and I applied for a junior to assist me." [R. Harrison,
counsel for Ellis] c. Reshaping The Indictment:
i. The Crown
reduced the 16 'circle incident' (ritual abuse) charges, which had been laid
equally against Ellis and three of his female colleagues, to two unequal
charges: one against Ellis (whose role was then upgraded from co-offender to
principal offender), one jointly against the women (whose roles were then
down-graded from co- offenders to parties to an offence committed by Ellis).
This change enabled the trial judge to dismiss the charge of group sex
against the women, while leaving the same charge against Ellis (based on the
same evidence from the same child) intact, [charge sheet, draft indictments] ii. Because
of the nature and scale of the alleged offending, there was no way that Ellis
could have acted alone and unnoticed. So, despite the fact that nobody other
than Ellis and his three female colleagues had ever been charged with group
sexual offending, once the women were discharged, the Crown Solicitor changed
Ellis's role in the 'circle incident', and in another multi-offender charge,
from principal offender to party to an offence committed by persons unknown.
[final indictment] iii. The
Crown Solicitor's solution may not have worked anywhere else, but a belief in
the existence of a mysterious paedophile ring that was evil, invisible and
everywhere had long been abroad in iv. From
the Crown Solicitor's point of view, having phantom rather than real-life
co-defendants at the trial made the prosecution's job very much easier. Since
they had not been identified and charged, the Crown did not have to explain
to the jury who Ellis's co-defendants were or what they were supposed to have
done, and since they had no status in the proceedings, they could not defend
themselves against the Crown Solicitor's innuendo [p. 481-482, 504-505 &
522. A City Possessed]. v. The
Crown Solicitor also eliminated or reduced the 10 sexual violation charges
against Ellis in which penetration of a child's anus, vagina or penis was
alleged. Thus, a charge that Ellis sexually
violated a child by inserting his
penis into the child's anus, became a charge that Ellis indecently assaulted the child by placing his penis against the child's
anus. Changes of this sort allowed the Crown to explain away discrepancies
between the violent and bloody abuse the children said they had suffered, and
the lack of evidence of penetration, by claiming that the children were
confused. [charge sheet, draft and final indictments] d. Key Evidence Withheld In i. When
the Christchurch City Council closed the creche without explanation in
September 1992, the 11 childcare workers and two cleaners who lost their jobs
took a personal grievance case against the council. ii. Chief
Employment Judge Goddard summed up the case this way: 'At the heart of this
case is whether [city council CEO] Mr Gray handed in the [creche] licence
because of a business decision no longer to operate the creche, or whether he
did so as a means to an end of dismissing employees who were suspected of a
grave dereliction of duty of which, however, he had no evidence.' iii. In
his opening submission for the creche staff, Graham Panckhurst QC argued that
the city council did not act as a fair and reasonable employer when
confronted with wholly unsubstantiated allegations from the police and the
Ministry of Education. iv. In
reply, Tom Weston for the City Council argued that, because the police had
persuaded the Ministry of Education to withdraw the crèche licence prior to
meeting with the council, Gray was presented with a fait accompli - he had no choice but to close the creche.
Furthermore, Weston claimed. Gray could not advise the staff of any formal
complaint because no complaint had been made. v. After
hearing the witnesses and considering the arguments, Judge Goddard ruled that
Gray's evidence was unreliable, and contrary to the documentary evidence. He
concluded that the staff had been unjustifiably dismissed and awarded them
over $800,000 compensation. vi. The
Court of Appeal overturned Judge Goddard's decision, and concluded that there
was no basis in the evidence for his finding against Gray. vii. In
the course of my research for A City
Possessed I obtained the brief of evidence that would have been presented
in the Lack
of Satisfactory Alternatives 28. Privy Council: b. An
appeal to the Privy Council or any other higher court would address only
narrow points of law related to the remaining convictions against Peter
Ellis. It would not address the wider concerns related to the investigation
and prosecution of the case, or the implications of the case for the wider
community. c. Ellis
has called repeatedly for a Royal Commission of Inquiry. Because of its
narrow legalistic approach, an appeal to the Privy Council has never been his
favoured option for addressing this multi-faceted case. 29. Referral To Court Of
Appeal Under S.406(A) Crimes Act (1961): 30. Inquiry Presided Over By
A Should
a pardon precede or follow a Commission of Inquiry? 31. The
fact that Arthur Allan Thomas was pardoned prior to the establishment of a
Royal Commission of Inquiry into his case should be no barrier to the
establishment of a Royal Commission of Inquiry into the creche case: a. Should
he wish to do so, there is no legal or constitutional reason why the Minister
of Justice could not instruct the Governor-General to pardon Peter Ellis
prior to the establishment of a commission of inquiry; or, b. The
Australian model could be used, in which commissions of inquiry into
controversial criminal cases have considered, among other things, whether tv
recommend a pardon (e.g. as in the Lindy Chamberlain case). |
