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The Christchurch Civic
Creche Case |
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Conviction
Appeal Grounds 1.
That the verdicts are unreasonable in that the evidence of the
complainant children was not credible. Essentially this was a submission
that the convictions were unsafe. In respect of each child the Crown played
to the Court at the trial one or more of the video-recorded interviews in
which the conduct forming the basis of a particular charge was described. The
child's evidence was then given on close-circuit television with
examination-in-chief and cross-examination. The jury were provided with
transcripts of the tapes and were allowed to take them into the jury room.
Not all the tapes in respect of a particular child were shown by the Crown,
but there was an arrangement, subject to the Judge's direction, whereby other
tapes or parts thereof as required by the defence were shown to the jury as
well. The defence complaints about this procedure are discussed later in this
judgment. "Circumstantial" Improbability Mr Panckhurst took us first
through extracts culled from transcripts of videos played to the jury (and
some which were not) to demonstrate the improbability of what the children
were saying when viewed against independent evidence of place and circumstances
in which the conduct was supposed to have occurred. Much of the offending was
said to have happened at the crèche. The evidence indicated that a total of
about 20 children were abused or were present during those episodes. Mr
Panckhurst emphasised that over the 5-year period involved in the charges no
sign of such abuse was seen or reported to any adult, although some of the
children gave evidence of making complaints to crèche workers about the
appellant's conduct which the workers said in evidence they did not
recollect. If made, they may have been understood only as objections to his
tricking or boisterous play. He also pointed out that the
staff/child ratios referred to above were usually maintained throughout the
period and in addition there would be the coming and going of parents
dropping and collecting children and random visits by others during the day,
all of this making the opportunity for abuse unlikely. However, the appellant
conceded that there were occasions when, he would be by himself with the
children, although Mr Panckhurst stressed that this was not an acknowledgment
that he was able to abuse them. 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. 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 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 crèche. Four complainants said they were
driven by Ellis in a car to places where abuse had occurred but his evidence
was that he did not own one and people who knew him said they had never seen,
him driving. There were allegations of abuse by several people on those
occasions and it is possible that the children were confused in describing a
trip in a car driven by someone else, with the appellant as just a passenger. Two of the complainants said that
Ellis and a woman they called his mother were involved in photographing
episodes of sexual abuse. A search of his house did not reveal a camera
although there was one at the crèche which had been used on occasions to
photograph special events. One of the crèche workers related a discussion in
which Ellis said he had used a borrowed Polaroid camera to take photographs
of adult sexual activity. In cross-examination he said he had an old Polaroid
camera which did not work properly, and he denied taking any photographs of
sexual activity, although he agreed he may have told his fellow-worker just
to shock her, in the same way as he explained making other comments about
unusual sexual activities to these women. Medical evidence was given by two
doctors who examined the complainants, but it took matters no further. There
was no evidence of anyone observing signs of injury on the children
consistent with the use of sticks, needles, or burning paper, as described by
some of the complainants. Six of the complainants in respect of whom the
appellant was found guilty (the exception was child A) said that other
children were directly involved as fellow victims in their abuse. Of these,
ten were complainants at the trial, but the remainder were not called as
witnesses. In some cases children who gave evidence of abuse against them did
not refer to those other episodes in which they were also said to have been
abused. To sum up on this aspect of the
case, therefore, although it called for careful consideration by the jury,
there is nothing in the foregoing material placed before us by Mr Panckhurst
which of itself renders the accounts given by the various complainants
inherently improbable or unworthy of belief. That, of course, does not end
the matter and we now turn to consider against this background the submissions
about the content of the children's evidence and the other major ground of
appeal alleging unfairness in the way it was obtained. |
