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The Christchurch Civic
Creche Case |
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The professionalism of the three
women who conducted the interviews is obvious from the transcripts and they
gave evidence of their training and extensive experience in this field. There
was criticism about some of their questions and of the way some evidence was
elicited, but we are satisfied that this is of no real moment. As the Courts
have said in a number of cases, when dealing with young children some coaxing
and guidance is necessary to bring them to the point of disclosing abuse
which many of them find embarrassing or distasteful and would rather forget.
It is unreal to expect them to behave as mature adult witnesses and launch
into their evidence with only minimal guidance in examination-in-chief. What
this Court said about the use of evidential videos in child abuse cases in R v Lewis (1990) 6 CRNZ 350, 352 bears
repeating: "....although it is open to the defence to suggest
that the evidence inculpating the accused was obtained by suggesting to the
children what might have happened, the interviewers did not act unfairly;
but, what is more important, any allegation of that kind is well within the
competence of a jury to assess if they have the advantage of seeing the tapes
played as a whole. There is nothing arcane about the methods used by the
interviewers. There is, as we have said, a certain degree of patient coaxing,
but whether or not that can reasonably be thought to have led to any untrue
statements by any of the children is essentially a matter which a jury should
be well capable of evaluating..........the general spirit of the changes made
by the Evidence Amendment Act 1989 with reference to child witnesses in this
class of case points towards allowing the use of these tapes. The broad
purpose is clearly to ensure that the old technicalities of evidence and
traditional approaches to the giving of evidence, even the contents of
evidence in matters such as hearsay, shall not necessarily prevail against
the desirability of getting at the truth and doing so by an effective
machinery which enables children to give evidence without undue stress, while
at the same time preserving the accused's right to a fair trial." The interviewers in the present
case were well aware of the need for a neutral approach and knew the dangers
of asking leading questions (i.e. questions which suggest the appropriate
answer). The jury had the advantage of listening to and observing them and
the children throughout the many hours the tapes were played in Court, and
they were able to assess the spontaneity and genuineness of the child's
reactions and disclosures, and the effect of the interviewer's attitude and
questioning. From the extracts of the transcripts to which we have been
referred, the interviewer can be seen in some cases to be following up
information received from a parent, but without inappropriate persistence or
leading, and we do not accept the submission that they were working under an
agenda with the object of obtaining disclosure of abuse in the belief that it
had occurred. We were informed by counsel that
at depositions the interviewers were closely cross-examined over some days
about their methods and attitudes, but at the trial cross-examination on
these matters was relatively limited. The history of this investigation tells
against any suggestions of a deliberate manipulation or slanting of the
disclosure process to obtain evidence of abuse. As stated above, a total of
118 children were interviewed and in the end the number of complainants
involved in the charges which went to trial was reduced to 10. This points to
a responsible winnowing-out process rather than to one in which confirmation
of sexual abuse was being sought by a person who accepted it had happened. One of the features relied on to
demonstrate the allegedly unsatisfactory nature of the interview process and
the lack of credibility of some complainants was the increasingly bizarre
nature of the conduct they described in successive interviews, some of which
were not shown by the Crown to the jury. It is claimed that the defence was
handicapped by the Judge's ruling limiting the playing of those tapes and
cross-examination of the complainants thereon. All but one of them were
interviewed a number of times ranging from two to six, with the majority of
sessions extending from close to an hour upwards, one or two taking almost
two hours. As part of its case the Crown played only those tapes containing
allegations of the specific sexual offences charged, and these numbered 22
out of a total of 44. On a pre-trial application the Judge ruled that if the
defence wished to cross-examine on any matters in a taped interview not
played by the Crown, it could ask for that tape to be played, but only
insofar as it was relevant to the charges being considered by the jury. He
indicated that his ruling was of a general nature at that stage and it would
be necessary to look at each of the tapes at the appropriate time.
Appellant's counsel criticised the qualification about relevancy to the
charges, contending that this did not allow the jury to see the full picture
of the interview process undergone by these children, in order to judge
whether it led them into making the allegations which formed the basis of the
charges. There was discussion between
counsel at the outset of the trial about the showing of the other tapes
(called the defence tapes), all of which were made available by the
prosecution, and the entries in the Crown book demonstrate that the defence
was able to have played those parts it wanted in order to cross-examine. Even
without their being played, some of the complainants readily admitted in
cross-examination to making the more bizarre allegations about sexual
activity described in tapes not shown to the jury. The Judge acknowledged that his
ruling was a 'hybrid' one expanding the approach to be taken under ss10 and
11 of the Evidence Act towards prior inconsistent statements, to meet the
concerns of the defence about the interview process. He was clearly right in
seeking to prevent the trial becoming enmeshed in all the collateral and
peripheral matters covered in the tapes not relied on by the Crown, and about
exposing the jury to the playing of many hours of irrelevant material,
thereby distracting them from consideration of the real issues. After being
taken through the Crown book and shown the relevant entries, appellant's
counsel accepted that in general the defence was not denied the opportunity
of playing whatever tapes they requested, but contended that his counsel at
trial had felt constrained by the Judge's insistence on relevancy from
seeking more extensive playing, in order to demonstrate the way the interview
process had led the children into making these extreme allegations. We do not accept this as a valid
criticism. The jury had ample opportunity to judge that process from the
extensive material played to them. There was little cross-examination of the
interviewers or of the children themselves about how these more bizarre
statements came to be made, or of possible reasons for them. They tended to
come out only in later sessions and the expert evidence from both Dr Zelas
and Dr Le Page (called by the defence) suggested that the more reliable
interviews tended to be early ones: repeated interviewing, while it could
help children recall further detail or other incidents of abuse, carried the
risk of confusion and imaginative reconstruction. Where later bizarre or
seemingly improbably accounts of abuse formed the subject of charges, Ellis
was acquitted. Mr Stanaway discerned a general pattern of convictions mainly
in respect of disclosures made at earlier interviews, or in a single series
occurring close together. We are satisfied that the ruling
about the tapes was one which the Judge was entitled to make in the
circumstances of this trial and that it caused no prejudice to the defence.
His ruling that the children need not be present during the playing of
defence tapes was also one given in the proper exercise of his discretion and
any impact this had on the effectiveness of cross-examination seems to us
more theoretical than real. Nor is there any more substance in
the complaint that the Judge wrongly applied the rule against collateral
attacks on credibility to disallow evidence or cross-examination of other
witnesses or to discredit the complainants. Indeed, Mr Stanaway's analysis of
the relevant evidence satisfied us that in fact the defence was able to make
in one way or another most of the important points of credibility it wanted
to raise against the complainants and other Crown witnesses. |
