|
This page last updated
Feb 8 2005 -
2005-0208 - The Press -
Verdicts in doubt
New Feb
8 2005
by
Bernard Robertson - Section 23G of the Evidence Act is nonsense, writes the
editor of the New Zealand Law Journal, Bernard Robertson. It has caused
countless unfair convictions and should be repealed. A Court of Appeal
decision given just before last Christmas will reopen controversy over the
convictions of not only convicted child sex abuser Peter Ellis but hundreds
of others convicted during the 1990s of sexual abuse of children.
2005-0123 - NZ Herald - Ruling
could help Ellis case
by David Fisher - Peter Ellis, a convicted paedophile, could be given another chance to
clear his name following a new Court of Appeal ruling which hits expert
evidence given by psychologists. The appeal court judgement, released on
Christmas Eve, will force psychologists to be more specific about the signs
of child abuse - and could affect hundreds of child sex abuse cases…………. This
recent ruling looked at whether the evidence of a registered psychologist
called at trial complied with section 23G of the Evidence Act, which governs
the admissibility of expert evidence in child sexual abuse cases. It allows
expert evidence on whether a complainant's behaviour was consistent or
inconsistent with a sexually abused child of similar age.
2005-0121 - NZ Lawyer - Court
opens way for review of Ellis case
by
Andrea Ruffell - A judgment released on Christmas Eve turning on s 23G of the
Evidence Act 1908 could open the
floodgates for review of hundreds of child sexual abuse convictions entered
over the last 15 years. In R v A
(CA 123/04, 16 December 2004), the Court of Appeal considered whether the
evidence of a registered psychologist called at trial complied with s 23G of
the Evidence Act. Section 23G governs the admissibility of
expert evidence in child sexual abuse cases. The section authorizes the
giving of expert evidence on the question whether a complainant’s behaviour
was consistent or inconsistent with that of a sexually abused child of
similar age
2004-1004 - NZ Law
Society - Evidence - how it works
by
The Hon Justice Wild, Hon Robert Fisher QC - (Table of Contents only,
including section questioning "
Section 23G – Expert opinion in sexual abuse cases. Should this provision
remain?"
2004-1004 - NZ Law Society -
Evidence - how it works
(Note pdf file - Size 5.65MB - Right
click and save to disk)
2003-1011 - Lynley Hood -
Response to MOJ submission on petition
by Lynley Hood - 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 (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]
2003-1004 - NZ
Listener - Child abuse and the experts
by John Anderson - Professor Corballis ("Memory
& the law", September 13) asserts that "the interpretation of
psychological symptoms as evidence of abuse is now thoroughly
discredited". I wish that it was. As I write, part of the law of New Zealand
is section 23G of the Evidence Act 1908. Section 23G(2)(c) of the act allows
an "expert", ie, a registered psychologist or psychiatrist
"with experience in the professional treatment of sexually abused
children", to comment on evidence given by any person as to whether the
child's behaviour is consistent or inconsistent with the behaviour of
sexually abused children
2003-0904 - The Press - Civic
Creche: Who can you really believe?
by
Bernard Robertson - In the 1980s, evidence was given in court in sex abuse
cases by half-trained counsellors and others which was rightly rejected by
the Court of Appeal. It was rejected because it was illogical and did not
prove what the witnesses seemed to think it proved. Rather than learn from
the experience, the psychological lobby managed to get section 23G of the
Evidence Act passed. This enables psychologists to give evidence about all
sorts of ill-defined things. In particular they can give evidence about
whether a child’s behaviour is "compatible or incompatible" with
sexual abuse. This is meaningless.
There is no behaviour which is incompatible with sexual abuse, so all of us,
all the time, exhibit behaviour that is compatible with sexual abuse
2003-0831 - Sunday Star Times
- Are courts over Zelas?
by
Anthony Hubbard - Part of the debate centres on changes to the law of
evidence in sex abuse cases, changes that Zelas helped design. She was part
of an advisory committee, headed by pediatrician David Geddis, that
recommended amendments in 1988 to the Evidence Act. The critics describe some
of the changes - enacted into law the following year - as flawed or even
meaningless, and likely to lead to miscarriages of justice. They particularly
dislike Section 23G, which governs the testimony of expert witnesses. This
section, which featured in the Ellis case and some other famous sex abuse
trials, allows an expert witness to say whether the child's behaviour
"is consistent or inconsistent with the behaviour of sexually abused
children of the same age group". This clause, according to New Zealand
Law Journal editor Bernard Robertson, is actually meaningless
2003-0804 - ZB
Talkback - The Toddlers Testimony
by
Gordon and Colleen Waugh - …… Secondly, Section 23AB of the Evidence Act was
introduced, without good reason, to remove the requirement for corroboration
in sexual cases, and to remove the time-honoured mandatory judicial warning
of the dangers of convicting on the basis of uncorroborated evidence. The
introduction of Section 23G, allowing so-called "experts" to give
evidence, opened the door to belief and fantasy masquerading as evidence.
Other sections are also flawed.
2003-0720 - Sunday Star Times -
Issue is pro-justice
by
Bill Wright - The trial, several appeals and inquiries to which Kean refers
were narrowly focused and circumscribed by rigid procedures that, under the
rules of evidence relating to experts, inexorably tilted the case in favour
of the prosecution. In the absence of "expert" evidence admitted
under section 23G of the Evidence Act, there would have been no case. In his
report, Sir Thomas Thorp noted difficulties with section 23G and recommended
repeal.
2002-0601 - The Press -
Lynley Hood, author
by
Martin Van Beynen - (Quoting Hood)
:"All I'm doing is encouraging people to think for themselves. It's
their initiative. I feel as if I've done my bit by writing the book ..."
Her talks and, of course, the book are having an effect, she says, even if
the Government looks the other way. "It is having an effect in the
courts. 23G (a section allowing prosecutors to call expert evidence that a
complainant's behaviour is consistent with children who have been sexually
abused) is being used less and less."
2002-0200 - NZ Law Journal
- The Ellis case
Editorial - Section 23G of
the Evidence Act: this section is
meaningless nonsense. This is not hindsight, it was said at the time it was
passed. The section authorises the giving of evidence about whether behaviour
is consistent or inconsistent with sexual abuse. “Inconsistent” means “logically
impossible in combination with” and “consistent” simply means “not
inconsistent”. There is no behaviour that is inconsistent with sexual abuse
and so the DSAC manual instructed doctors to report all behaviour as
“consistent with sexual abuse”. This is clearly not understood by most
lawyers and police, who, surveys show, think that “consistent” means
“provides supporting evidence for”. Sadly, the Law Commission draft Evidence
Code just reiterates this nonsense verbatim. It should be repealed. The kindest
thing that can be said for those responsible for it is that they cannot have
known what they were doing.
2001-1006 - Conference -
Freckelton.pdf
(Note pdf file - Size 188KB - Right
click and save to disk)
2001-1004 - NZ Lawyer - Book
Review: A City Possessed
by Ian Freckelton - If the Christchurch Civic Creche case has
revealed the criminal investigative system as "found wanting", it
has also cast a worrying light on the objectivity of a series of
well-regarded experts and campaigners, in New Zealand and internationally,
upon whom the legal system needs to be able to rely in times of crisis. It
poses questions not only about the circumstances in which the notorious
section 23G of the Evidence Act 1908 became part of New Zealand law, but also
about whether there is any empirical justication for its retention
2001-1000 - NZ Law Journal -
Book Review: A City Possessed
by Ian Freckelton - 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.
1999-0800 - NZ
Law Commission - Report55 - Evidence Vol 1
(Note pdf file - Size 572KB - Right
click and save to disk)
1999-0800 - NZ
Law Commission - Report55 - Evidence Vol 2
(Note pdf file - Size 622KB - Right
click and save to disk)
1999-0800 - NZ
Law Commission - Report55 - Evidence Vol 3
(Note pdf file - Size 360KB - Right
click and save to disk)
1999-0300 - Sir
Thomas Thorp - Report-Conclusions.htm
by Sir Thomas Thorp - While
the matters on which my opinion has been sought relate wholly to the
Petitioner's claims that he has been wrongly convicted, his petitions raise
questions of a wider significance about the appropriateness of the codes
which currently govern the obtaining and presentation of the evidence of
young children in this country. The Petitioner's trial was affected by the
need to apply ss.23G and 23H of the Evidence Act 1908. That issue is
discussed in a separate Appendix to the opinion, as a matter of public
interest arising out of, but not directly involved in, the questions asked of
me
1999-0300 - Sir Thomas
Thorp - Report-Appendix.htm
by Sir Thomas Thorp - A
whole series of decisions has laboured over the practical difficulty of
admitting expert evidence in terms of s25G without that evidence having the
effect of taking over the jury's right to decide credibility. The present
case exemplifies those difficulties. It also raises the question whether a
provision which envisages expert evidence on whether a complainant's behavior
was "consistent or inconsistent" with the behavior of sexually
abused children of the same age group has any purpose if expert opinion is
that no behavior can be said to be inconsistent
1997-0700 - COSA - Report of
Talk by Ian Freckelton
Editorial - However, despite these judgements, legislation was passed through
intense political lobbying, in the form of the amended Sect 23g, that allows
a professional (eg psychologist or psychiatrist) to give evidence that such
behaviour is consistent with abuse, even if this is counter-intuitive to what
might be expected. Without such evidence, a jury might assume that it is
likely that a child who temporarily has made allegations of long-ago sexual
abuse but given contradictory confusing testimony, and then has said that actually
nothing ever happened, has indeed never been abused.
|
