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The Christchurch Civic
Creche Case |
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The Children's Evidence The following is a brief summary
of their evidence. In a number of cases the appellant was said to have told
the children not to say anything and to have made threats if they did. Child A (female) - born May 1983; commenced at
former crèche May 1985 and moved to
pre-school May 1986. There were three interviews. Her
first of 7 April 1992 was not played because of a technical defect but the
second of 9 April and the third of 28 May were played by the Crown. In the
second she reported that the appellant squeezed her vagina at the house at
Hereford Street referred to above and this was the basis of count 1 on which
he was found guilty. In the third she described an incident at the
crèche when he made her touch his
penis (count 2) and several occasions when he touched her vaginal and anal
areas in the toilet (count 3). He was found guilty on these two counts also.
This girl gave more general descriptions of other indecencies in the toilet
area and at the house. She said he told her to say nothing about it. In all three tapes the child
indicated that she had spoken to her mother who confirmed that she had asked
her daughter in general terms about the crèche in early 1992 around the time
of the Knox Hall meeting when she decided to ask for an interview. She denied
attempting to influence her, or any probing into the content of the
interviews. Mr Harrison submitted that the interviewer
should have elicited more from the child about the conversations she had with
her mother, and should have made further enquiries about the source of the
information she gave about the abuse to see whether it emanated from someone
else rather than from her own experience. The child gave a deal of
circumstantial detail and on the face of the material in the transcript we do
not think there was any call for the interviewer to divert the discussion
into a cross-examination of what passed between the child and her mother, or
about other sources. What she was saying was quite straightforward indecent
touching; at the time of the interview she was nearly 9 and was well aware
that this was "bad" touching. This is the child noted above who
indicated during the hearing of the appeal that she retracted her
allegations. We deal with this later. Child B (female) - born September 1984; started at
the crèche January 1987 and moved to
pre-school in February 1988. There was only one interview with
her on 12 May 1992 which was played at the trial. She referred to an incident
on Guy Fawkes night 1990 when she became very upset over her parents parking
the car at the crèche to see a
fireworks display, and they confirmed this. She said she told them then that
Peter had been mean to her. After the Knox Hall meeting they asked whether
she wanted to speak to the police about any bad touching that might have
happened to her; they were sure that before then the child did not know that
allegations of misconduct were being made against him. The girl told the interviewer that
Peter tickled her and another girl lots of times and that he would poke her
crutch and she asked him not to do that. She said it happened "inside,
when other teachers were at the other end looking after the deaf
children", and that it had happened six times; although in Court she
said it happened 10 or 16 times "I couldn't remember exactly". She
said it was always on top of her clothes and that it hurt a weeny bit and
when she got home she saw a little cut on her vagina and that his nail was
long. (The uncertainty about the number of times is of no particular concern;
the experts explained the problems very young children have with concepts of
numeracy.) The appellant was found guilty of indecent assault (count 4) in
respect of this conduct. Appellant's counsel focussed on
her reference to the "deaf children", it being common ground that
at school this girl's class exchanged with the corresponding class in the
deaf school at Sumner. She was closely cross-examined on this point but was
adamant that the touching had occurred at the crèche . She said her reference
to "deaf children was a mistake and that she meant the "nursery
end" children. In the end we think the jury could have been left in no
doubt that her use of "dear was just a slip of the tongue. The question
of contamination of the child's recollections by information from other
sources was also thoroughly explored and the jury was entitled to accept the
evidence from the girl's parents that they had done nothing to influence her
or to suggest indecent touching beyond their first neutral enquiry. Child D (male) - born October 1986; started at
crèche September 1988 and after a break away in England with his mother left
the crèche in October 1991. There were three interviews, the
first and third on 3 April 1992 and 28 October 1992 being played by the
Crown. There was no defence request to play the second interview of 27 April
1992. In the first he described how the appellant urinated on children's
faces into their mouths, and on one occasion he did it to him in the toilet
and put his penis in his mouth. This was the basis of doing an indecent act
in count 6, on which the appellant was found guilty. He was found not guilty
of indecent assault on count 7, in respect of which the child said at his
third interview in the following October that the appellant had taken him and
other children into a room in the adjoining Cranmer Centre and there with
other curiously dressed men he poked a stick up his anus. His description of
these events and the people involved reads like pure fantasy, but curiously
enough he described openings onto the roof where he said he had been taken on
these occasions, which could only have been seen by somebody standing up
there. Counsel criticised the techniques
used in the first interview suggestive of prompting and attempting to get
corroboration of offences on other children. We do not think there is
anything of substance in these criticisms or in the fact that the boy's
mother asked him early in 1992 whether Peter had ever touched children's
bottoms; he then told her about the urination and the stick incident which
she had not heard of before. She was closely cross-examined about discussions
with others and with the child, and about his association with other
children, from which the jury would have been able to make an informed
judgment on the existence and extent of any contamination of her son's
evidence. There is nothing in her testimony to give us cause for concern on
this aspect. We note in respect of the count
involving urination that Ellis was also found guilty of the same conduct in
the toilet with child F, and that there was evidence from one of the crèche
workers that on three occasions he had talked to her about a sexual practice
known as "golden showers", involving an activity where persons
urinated on each other in turns. She said he appeared to be interested in it
and that other adult sexual practices were discussed as well. In
cross-examination the appellant denied talking about "golden
showers" but explained that he sometimes spoke of unusual sexual
practices as described by several crèche
workers to shock or "get a rise" out of them. The Judge was clearly correct to
allow evidence of his interest in these unusual practices to be given: the
jury could see in the reference to "golden showers" support for his
conviction on the two counts involving that unusual practice, especially as
it seems unlikely that the two children could have made it up or learnt of it
from other sources. Child F (female) - born November 1985; commenced
at crèche November 1987 and ceased 17 November 1990. There were three interviews, the
first and third being played to the jury by the Crown, dated 1 May 92 and 3
August 1992; there was no defence application to play the second of 28 May
1992. In the first she described "wees coming from Peter's bottom"
which she did not have to drink like other children did, because she kept her
mouth shut. She said the urine was yellow and went over her face. This was the
subject of count 9 (doing an indecent act) on which the appellant was found
guilty. He was also found guilty on count 10 of inducing an indecent act as a
result of her statement in the first interview that she had been taken to a
house with other children where Ellis got her to have a bath with him and
washed her all over, touching her vagina with his hands. She also claimed
that he defecated in the bath. Mr Harrison submitted that the
interviewer was guilty of repairing "a glaring inconsistency" the
child made when saying that the wees came from Peter's bottom; in response to
further questions in reference to a body outline sketch she corrected this to
"penis". We can see nothing of substance in this objection. With
young children, whose language and perceptions are not those of adults, it
could be natural enough to refer to the whole genital area as a person's
"bottom". The child had a number of
discussions with her mother, who also described some sexual conduct she
displayed while having a bath with her, which could have been very relevant
to the child's account of bathing with the appellant. There were some obvious
difficulties with her evidence about which she was rigorously cross-examined.
The jury were entitled to accept her explanations, particularly as they
enjoyed the advantage of seeing and hearing her. She was also examined about the
discussions she had with the child, including helping her to produce two
booklets of drawings called "The Way to Peter's House" and
"What did Peter do?" which the girl took with her to the interview.
We think this was a permissible help in refreshing her memory. In spite of
her mother's concerns giving rise to reservations about whether she may have
unduly influenced or suggested matters to the child, in the end the jury must
have been satisfied beyond reasonable doubt with the essential truth of the
accounts forming the basis of the charges. We would not be justified in
setting aside the convictions in the face of their advantage in seeing and
hearing the witnesses -a fortiori on the first count, in the light of the
accused's discussions about "golden showers" to which we have
already referred under child D. The jury acquitted the appellant
on the next two counts involving this child -attempted sexual intercourse
(count 11) and indecent assault (count 12). These disclosures were made in
the third interview which took place some three months after the first. In it
she said that Ellis had put his penis in her vagina a little bit at the
house, and at the crèche had put a needle up her bottom. These interviews
were apparently prompted by further information obtained by the girl's mother
and passed on to the interviewer. Mr Harrison emphasised the bizarre
statements she made in the later sessions and criticised the methods and
technique involved in obtaining all the disclosures. These matters would have
been clear to the jury, and for the reasons given above his submissions in
respect of these two counts do not take us to the point of regarding as
unsafe the two earlier convictions involving this child. Child G (male) - born March 1986; started crèche
March 1989 and left in February 1991. There were five interviews, the
first on 14 May 1992 followed by 4, 5 and 6 August, with the fifth interview
on 28 October. The Crown played those of 4 and 6 August to support four
counts. The appellant was convicted on the first three -inducing an indecent
act at an unknown address when bathing with the complainant who touched the
accused's penis (count 16); indecent assault at an unknown address where the
appellant put his penis against the boy's anus (count 17); and sexual
violation at an unknown address when he placed his penis in the boy's mouth
(count 18). He was acquitted on count 19 of doing an indecent act at an
unknown address where children stood in a circle and were sexually abused by
a group of people including the appellant. The first tape of 14 May was also
played in part, in which the child described a dubious episode at the crèche
when he was very young, involving the appellant. In the second interview of 4
August three months later he described being taken to a house where other
children were present and gave a detailed description of masturbating the
appellant which he said occurred twice at his house and twice in the crèche
toilet. The former was the basis of count 16. In response to a further
question by the interviewer he said the appellant put his penis up his bum
when he was standing in the bathroom of his house (count 17), and then he
took the children back to the crèche
and told the other teachers they had a good walk. He also described going to the
appellant's house in a car which Peter drove with two adults in it. He said
there were others waiting in the house when they arrived and he described it
as two-storeyed with a ladder and belonging to one of the appellant's
friends. Other men took part in anal intercourse with him and Ellis took
photos. There were other children there as well. He also said that Ellis put
his penis into his mouth in the bedroom where they did most of the bad things
and white sticky stuff went into his mouth. This was covered by count 18. In the third tape of 5 August,
which was not played, he described a visit to a library and then apparently
to a house and described a trap-door and a maze. He mentioned there were
friends of the appellant at the library wearing black clothes, giving much
the same description as D had given, and that one of them stuck a sharp stick
up his bum and a burning piece of paper which made it bleed. When they went
back to the crèche they were too scared to tell the teachers. There were some further descriptions of
indecencies which are very hard to follow. The next day on 6 August the boy
gave a more detailed description of the things Peter's friends did to him and
identified the place where these occurred as a two-storeyed house in Hereford
Street, stating they were all dancing around in a circle with him and some
other children in the middle. He named several from the crèche, including
three of the female staff, two of whom he said simulated sexual intercourse
with Peter taking photographs. A circle was painted on the floor in the
dining room and the children, who were naked, were made to kick and punch
each other in the middle. He said one of the men put needles up the boys'
penises causing them to bleed and in the girls' vaginas. He then described
being tied up and being put in an old oven after which the adults pretended
to eat the children; he also described a trap-door where they were made to
fall down in a room where there were books. In the 28 October interview there
were further descriptions of the trap-door and of cages in which they were
hung from the ceiling and he also described going through a tunnel and a
secret door in the wall, and going up into the ceiling of the crèche and down through a trap-door in the
supervisor's office. (Such a trap-door existed.) There were features in the
house at Hereford Street which could have been in the child's mind when he
was describing some of these events, including a hidden door which gave
access to a large space inside the internal walls of the house and which the
owner said previous occupants had set up to grow marijuana. He said visitors
were sometimes shown it as a curiosity. There was a big cupboard in the
kitchen which had once held a coal range, and a more modern stove opposite.
Both this complainant and child D spoke of group abuse in very broadly
similar terms. This complainant also mentioned being taken into a maze in the
building with the trap-door, and in cross-examination he described it as
containing pipes. He could have been referring to the basement boiler room of
the crèche building. As they did with child D, the jury acquitted the
appellant on count 19 involving this more bizarre conduct. This child's mother had been in
touch with other parents about the crèche from an early stage and she was
closely cross-examined about the information she had obtained and about the
resulting discussions with her son. She agreed that she had asked him direct
questions but that he had volunteered the account of masturbating the
appellant and she had to explain to him what the white sticky stuff was. The
jury had a full opportunity to assess the influence she may have had on his
disclosures and must have been satisfied that they were reliable. The main criticism directed at the
interviewer regarding this child was of her failure to make any in-depth
examination of the more bizarre episodes he described, but it is very much
open to question whether a detailed enquiry would have achieved anything in
pinning this child down to a more coherent explanation. It is not surprising
that the jury acquitted the appellant on those matters, but felt able to
convict him on the other three counts which dealt with specific episodes of
more easily understandable abuse. Child H (female) - born August 1986; started at
crèche mid-1988 leaving August 1991. There were six interviews, the
first four of which were relied on by the Crown to support counts on which
the accused was found guilty - namely count 20 of sexual violation by putting
his penis in the complainant's mouth; 21, indecent assault by touching the
complainant's vaginal area with his penis; 22, indecent assault and touching
the complainant's anal area with his penis (these three in the crèche toilets); and 23, indecent assault when an
unknown man placed his penis on the complainant's vagina at an unknown
address. These four interviews took place on 27 and 28 February 1992 and 18
and 27 March 1992. In two other interviews of 28 and 29 October 1992 she
spoke vaguely of the appellant and his friend touching her bottom or vagina
with a knife at the crèche and of assaults when a group was present including
other crèche workers. In the first tape (count 20) she
described incidents in the crèche toilets when Ellis put his penis in her
mouth and "baby stuff" came out of it. Her mother told her it was
baby stuff. She said she told one of the teachers who didn't believe her. On
the next interview she said he had touched her vagina with his penis in the
toilets (count 21). Then, in the 18 March interview, that he touched her
bottom with his penis in the toilets (count 22). Nine days later during the
27 March interview she said she was at the appellant's house and there were a
group of people engaging in some kind of sexual behaviour in the presence of
herself and other children, and a man she called Joseph teased her by putting
his penis on her vagina, and Ellis was there laughing (count 23). She named
another crèche worker who came and
collected the children. The latter denied any knowledge of such an incident. The child was cross-examined about
these matters and stuck to her story, adding some circumstantial detail. This
girl's mother had frequent contact with other parents and the support group
and was a friend of the woman who had first complained. There was no doubt
that she was aware of a lot of the things the children had been saying about
abuse by Ellis and she was cross-examined at length about the discussions she
had with her daughter over the period before and during the disclosure
interviews. She agreed that she had asked the girl whether Ellis had ever
touched her vagina or had touched her with his penis, but said that before
she had any knowledge of it, her daughter told her of "yucky stuff
coming out of his penis". Counsel submitted that after this questioning
the child had clearly been "primed" to talk about Ellis at the
first interview, where she must have repeated the suggestion put to her by
her mother the week before, about Ellis showing her his penis in the toilet. This and the other criticisms made
by Mr Harrison were matters for the jury to assess. His further submission
that the interviewer should have explored alternative reasons for the child's
statement about "yucky stuff coming out of his penis" is
far-fetched. He criticised what he saw as suggestive and leading questions by
the interviewer and persistence in carrying on with the discussion after the
child wanted to finish. (She evidently had a limited attention span,
requiring a number of short interviews). Counsel's criticism ended with the
sweeping submission that the interviewer had a preconceived agenda and had in
essence found Ellis guilty and was not interested in obtaining any material from
the child other than that which supported her theory that the things she
described had actually happened. We note, however, that while this
interviewer was cross-examined at length about her general approach and
technique (which left no doubt about her professional competence), she was
not asked anything about the matters now so roundly criticised by counsel in
his submissions. For our part, we see nothing of any consequence in the
transcript extracts made available to us to cause concern about the way the
interview was conducted. The jury were quite capable of making their own
assessment after seeing the four tapes relevant to the convictions. Child K (female) - born January 1986; started at
crèche mid-1987. Three interviews, the first 9
March 1992 in which she said he put his penis in her mouth at the crèche toilet, and that he touched her vaginal
area with his hand. The first supported count 27 of sexual violation and the
second count 28 of indecent assault, the jury finding him guilty on both. In the second interview of 6
October 1992 she repeated these allegations in more general terms and said
that the supervisor and other workers knew it was going on but did not stop
him. They denied this. In this and the last interview of 9 December 1992 she
described an occasion when they were taken to a building with escalators and
Ellis did some "secret touching" in a carpeted room which had desks
in it. After that they walked back to the crèche. She named children who had
been subjected to this touching. Then she started talking about three other
men who were in a room with them along with Peter and indulged in indecencies
including touching the complainant's private parts with their hands and their
penises. There were no charges in respect of these incidents. These last two
tapes were apparently not shown to the jury. This child had a brother who was
also a complainant, but Ellis was acquitted on a charge of doing an indecent
act with him. Their mother was a member of the support group and had
discussions with the original complainant, and was aware before the
disclosure interviews of statements made about Ellis by some other
crèche children in which her own were
mentioned. She was cross-examined at length about what had taken place
between her and the child before the interviews. Once again the jury had
ample opportunity to assess the effect her involvement may have had on her
daughter's credibility. Mr Harrison repeated his criticisms of the
interview's failure to explore with the child the sources of her information
about Ellis' conduct, and our earlier comments on submissions of this nature
apply here. It would seem from the
cross-examination of the interviewers that there is some force in Mr
Stanaway's proposition that the thrust of the defence case changed on appeal.
At the trial it focussed on the possibility of contamination of the
children's disclosures as a result of previous questioning by parents and the
flow of information between them. He said the emphasis had now shifted
towards demonstrating that the interviews were conducted in a manner which
was ultimately unfair to the appellant, by persons who had a preconceived
agenda concerning what they wanted to obtain, and who at no stage seriously
tested alternative hypotheses about the source of the children's information
and largely ignored inconsistencies. The passages from the transcripts
referred to us by counsel did not support that sweeping condemnation made by
Mr Harrison, who subjected them to a microscopic examination. The interviews
accorded with the evidence of Dr Zelas about the way such exercises should be
carried out, and it must be remembered that she was generally supervising the
process. Certainly we do not gather from the cross-examination any
suggestions being put to the interviewers themselves or to Dr Zelas that
their technique and approach were flawed in the way now suggested. In dealing with the possibility of
contamination of the children's evidence from other sources, the interviewers
would attempt to 'validate' a child's account of sexual abuse by seeking to
elicit circumstantial detail. Ms Morgan summed it up in cross-examination in
this way: "If we felt in an interview situation that there was
a possibility perhaps a child has been told something to just repeat, we
suspect there may have been some sort of coaching or we weren't getting a lot
of detail, they maybe yes we would explore where did this information come
from, it's a very difficult complex sort of situation." We think it would be asking too
much to expect them to embark on a cross-examination of the child to
eliminate the possibility of contamination or influence from other sources in
respect of every allegation of abuse made. In assessing what weight to give
the children's evidence the jury had the benefit of the expert assistance
given by Dr Zelas for the Crown and Dr Le Page for the defence under s23G of
the Evidence Act They gave their opinions under subsection 2(a) about the
intellectual attainment, mental capability and emotional maturity of the
complainants, which included an account of the way young children perceive,
remember and recount events affecting them. Under subsection 2(c) these
witnesses expressed their opinion on whether the complainants' reported
behaviour was consistent or inconsistent with the behaviour of sexually
abused children of the same age group. On this aspect there was a divergence
between Dr Zelas and Dr Le Page: the former was clearly giving her evidence
in accordance with the provisions of the subsection, limiting her opinion to
the consistency with child abuse of the behaviour reported by the parents and
others, and acknowledging that it might be consistent with other causes as
well. On the other hand Dr Le Page clearly thought his task was to express an
opinion about whether the reported behaviour indicated child sexual abuse -
i.e. tended to prove it. He was adamant it did not but, as his approach did
not conform with subsection 2(c), his evidence on that aspect had to be
discounted. Parents reported behavioural
changes around the time the children were at the crèche , the most common
being regression in toileting habits in the case of children who were
supposed to have been fully toilet-trained by the time they moved into the
pre-school section. Those changes were accompanied in the majority of cases
with sleeping problems, nightmares and night terrors, and there were other
difficulties. While Dr Zelas acknowledged that they could be consistent with
domestic and other upsets disclosed in the evidence, she considered that what
she saw as "clusters" were consistent with sexual abuse. Appellant's counsel criticised the
action of the Crown in introducing at the end of its case a chart made up by
the police listing the problems reported about each complainant. The Judge
allowed it to be produced, noting the defence objections about its failure to
cover the full range of surrounding circumstances or the individual
differences between the children. He thought that any criticisms could be
covered in counsel's closing addresses and that its production would not be
unfair, and he gave the jury the normal direction about the use to which such
schedules could be put, emphasising that they were not in themselves to be
regarded as evidence of their contents. We gather that there was no issue
taken of their accuracy but in this Court Mr Panckhurst submitted that they
gave the Crown an unfair advantage by focussing the jury's attention on
conduct that occurred during the five year period without any distinction or
reference to its duration or timing, thereby giving this evidence an
unwarranted emphasis. We accept the validity of this
criticism. On the other hand, this was a legitimate and convenient way to
focus the jury's attention on the evidence of this behaviour which had been
given over the preceding weeks and enabled them to relate it to the
particular child concerned, thereby avoiding the risk of confusion with other
children. That the jury saw the schedule in its proper perspective is borne
out by the feet that they acquitted the accused on the charges involving four
of the complainants named in the schedule. We are not prepared to differ from
the Judge's ruling that it could be admitted. |
