|
|
The Christchurch Civic
Creche Case |
|
|
|
|
We have traversed at some length
the salient features in the submissions by appellant's counsel on the first
and most important ground questioning the integrity of the verdicts because of
doubts about the credibility of the children's evidence, and because of the
way the interviews were conducted. We acknowledge that there must always be
room for concern where the guilt of an accused depends on the testimony of
young children presented to the Court in the form of recorded interviews, now
accepted as the most appropriate and perhaps the only feasible way in which
allegations of sexual abuse against them can be tried. The dangers have led
to the special regime for the presentation of evidence in child sexual abuse
cases contained in s23A-I of the Evidence Act 1908. We refer again to the
extract cited above from R v Lewis about the spirit and broad purpose of this
legislation and we are satisfied that the conduct of the interviewers accorded
with it, and that the trial Judge had these matters and the added risk they
presented to the accused very much in mind in the rulings and directions he
gave. There is nothing in the material
placed before us on the appeal or in the wide-ranging submissions of counsel
leading us to disagree with the following comments made by the Judge in
sentencing: "The jury were in a unique position in this case.
Unlike almost all of those who have publicly feasted off this case by
expressing their opinions, the jury actually saw and heard each of the
children. They also heard your own evidence and that of the other former
Christchurch Civic Crèche workers. They disbelieved you. They believed the
children and I agree with that assessment." Child A's Retraction As noted above, during the course
of the appeal hearing advice was received through the Registrar that this
child's parents had reported she was now saying she had lied during the
interviews about Ellis. We adjourned the hearing for enquiries to be made and
for a report to be submitted to the Court by an agreed independent barrister.
After lengthy interviews with the child and her parents he submitted two
detailed reports, the first of an interview on 26 July which was the day
following the retraction the child had made to her mother. She had been away
from school with 'flu the preceding week and had received a nasty phone call
from a fellow pupil indicating that she would not be welcome back. When she
returned on the Monday before the interview that girl and others were not
nice to her and she was really upset. Her mother rang the other mother to
complain and there was an argument in which child A was described as a liar
and this also upset her. That evening after this conversation she told her
mother she had lied about Ellis because she had decided that she would not
tell any more lies. When interviewing counsel asked her why she had chosen
that occasion to tell her mother, she replied that she had thought about it
for a long time and had been waiting for a good time to tell her parents.
When he asked her if she thought she had been telling the truth when in
Court, she replied "I suppose I thought I was telling the truth in
court. I can't remember anything about crèche or Peter's house. If I can't
remember anything, then I must be lying." In response to further questions
she stated she could not remember the things she had said about Ellis in the
video or being in the toilet at the crèche with him, and that when she
watched a video in Court she did not think she was telling the truth in it.
At the end of this interview she said she was not sure why she told lies on
the video, and that she felt confused about it and that she could not
remember Ellis. Counsel then reported, with a
statement from the girl's mother confirming she had been unhappy at school,
and summarising the conversation with the parent of the other child, in which
it was said that her daughter told lies all the time and that she was not
popular at school because of this. She said she then had a general discussion
about lies with the child who became upset and eventually said she had been
lying about the Civic Crèche. Counsel saw the child again with
her mother in his chambers on 2 August 1994 in which she maintained that she
gave the answers she thought the interviewer wanted. She said she could not
remember the interviews, but when pressed could recall them but not what was
said; and when specific points were put to her she accepted she had said
them, but they were not true. She stated her reason for choosing this time
for telling her mother of the lies was her wish to make a new start, to stop
lying, and to work harder at school, where she was doing well but was unhappy
because a number of children did not like her. She was worried about Ellis because
she did not want him to spend any longer in gaol. When asked if she wanted to
see the video-tapes she quickly replied she did not, and would not give any
reason for her unwillingness. Counsel summarised the position by
stating that despite the consistency of her claim she had lied, the girl was
quite inconsistent about a number of surrounding factors. Having seen the
videos himself, he did not find her explanation that she had made up the
details of her complaints convincing. If she had lied in the interviews and
in Court he could discern no reason for it, and was unable to draw any broad
conclusions as to the part the interview process may have played in
encouraging or inducing lies. In the end he said: "I find myself remaining in a position of doubt. This
may not be sought from me, but my conclusion despite that doubt is that [A]
is a very unhappy, confused young girl, much troubled by her part in this
case. I think she has chosen to withdraw her allegations as a means of
removing the case and its effects from her life, coupled possibly with the
wish to help Peter who undoubtedly was a close friend. She is probably
troubled by the haziness of her recollections of her time at crèche 6 and
more years ago." This is a conclusion to be
respected having regard to the careful and obviously intelligent enquiries he
made. The child's mother had given
evidence (confirmed by the appellant) that this child was a particular
favourite of his: she said he was very open in his admiration, talking about
her eyes and how pretty she was and how special she was to him. He came to
her 5th birthday party and gave her a quite valuable gold bracelet with three
stones, which surprised her because it was obviously not a child's bracelet.
When she queried him the appellant replied that he would very much like to
see her wearing it again when she was 16. He explained that his sister had
given him the bracelet after she had got tired of it for the crèche dress-up
area, but he chose to give it to A instead. It is not uncommon for child
complainants in sexual abuse cases to withdraw their allegations or claim
they were lying, although more usually there are obvious family pressures on
the child to do so. That is clearly not the case here, but the matters
mentioned in counsel's reports indicate that A was a confused and troubled
girl at the time she made the retraction. There is some relevance in the
statement by one of the interviewers (Ms Sidey), in cross-examination about
another complainant, that a retraction will often indicate a high level of
anxiety and fear of the consequences of the disclosure. We share the doubts expressed by
counsel who saw the child. However, having regard to the content of his
report and to the extensive circumstantial detail given by this child, we are
by no means satisfied mat she did fie at the interviews, although she may now
genuinely think she did. With such doubts, we think it would be unsafe to let
the convictions on the counts involving her stand: Mr Stanaway informed us
that if this should be the case, the Crown would not be seeking a new trial
on them. Giving the appellant the benefit
of the doubt on these counts does not affect our view of the correctness of
the other convictions, and we see no substance in Mr Panckhurst's submissions
to the contrary. Accordingly the first and major ground of appeal fails in
respect of all but the first three counts. Miscarriage of Justice 2. There was a general miscarriage of
justice arising from any one or more of 6 specified grounds. Several of these grounds have
already been dealt with under the first relating to the unreasonableness of
the verdict. Of those remaining we deal first with the complaint that the
jury were allowed to retain and use transcripts of the complainants'
video-recordings of evidence-in-chief. The Judge considered they would be an
aid to their understanding of the recordings played and we think this could
hardly be disputed, especially when it is borne in mind that the trial
occupied a total of five weeks, with the complainants' evidence lasting from
26 April to 12 May 1993, followed by a further two weeks of other testimony.
Mr Stanaway pointed out that by the time the jury came to consider the
evidence of the first child, they would have had to cast their minds back to
the start of four and a half weeks of concentrated evidence. The provision of transcripts to
assist the jury has now become commonplace, with both audio and
video-recorded evidence adduced in criminal trials. The practice has been
acknowledged or approved in many cases which have come to this Court. We see
no merit in the submission that with the transcripts in front of them, the
jury would concentrate on the written word rather than on the appearance of
the complainant on the screen and his or her reaction to the questions being
asked. There is no suggestion of that happening here. Indeed, it can be
expected that members of the jury would be switching their attention between
the two sources as it became necessary to check the voice record against the
written word. Mr Stanaway informed us that it was sometimes hard to follow
what the child was saying, especially during early stages of the interview. Nor do we think that in a trial of
this length, containing many hours of screening, it was inappropriate for the
jury to have the transcripts with them during their deliberations. They were
supplied with still photographs of the different complainants in order to
relate the child they saw to the evidence they were considering. They had a
proper record, rather than having to rely on sometimes indistinct and
possibly vaguely remembered screenings, and that record enabled their
verdicts to be given on accurate information. They were told in the
summing-up that the transcripts were merely an aid and that the evidence they
had to consider was what they saw and heard during the interviews. That they
took this seriously is demonstrated by the fact that they asked for two tapes
to be replayed, and they were also read relevant portions of the child's
examination-in-chief and cross-examination. Mr Panckhurst submitted that it
was unfair to the accused for the jury to have transcripts of only the tapes
produced by the Crown, and not of those defence tapes which were played. As
to this, there was some difference between counsel, Mr Stanaway maintaining
that transcripts of all the tapes played were available and the others could
have been given to the jury if the defence had requested it. There was
nothing in the Judge's ruling limiting availability to only those tapes on
which the Crown relied. However, the fact remains that the jury did not have
the transcripts of the defence tapes; nor did they have a record of the
cross-examination. We accept that this could have resulted in an advantage to
the Crown, but its effect is a matter of degree. In the overall context of
the case we do not think it effectively prejudiced the accused, particularly
as in instances where the defence was able to make real inroads in
cross-examination there were verdicts of not guilty. The next ground was a complaint
that the extent of the evidence permitted from Dr Zelas in terms of s23G of
the Evidence Act occasioned a miscarriage. Mr Panckhurst opened on this by
criticising (albeit with some delicacy) Dr Zelas' conduct in undertaking a
supervisory role in the interview process and then appearing as an expert
expressing the opinions authorised by s23G of the Act. Those opinions were
about the consistency of each complainant's behaviour with that of sexually
abused children of the same age group; the intellectual attainment, mental
capability and emotional maturity of the complainant; and the general
development level of children of the same age group. Counsel did not suggest that she
was disqualified from giving such evidence because of her prior involvement,
but said she was in an "uneasy" position when it came to drawing
the fine line between evidence allowed under the section and the expression
of an opinion on the credibility of particular complainants. It is, of
course, a line which may be difficult to discern in some situations,
particularly when dealing with a group of young children, some of whom have
given similar accounts of the appellant's behaviour. It is inevitable that
general statements about young children's mental capacity etc may be seen as
applying specifically to these children - for example, the way young children
use magical thinking; their tendency to give unusual or bizarre description
of events of which they have had no previous experience; their ability to
recall central details more readily than peripheral ones; and the stages of
memory development and ability to recollect past matters. All these were features very
relevant to the accounts given by the complainants in this case, and they
were the matters on which the jury would clearly be assisted by expert
opinion. As Mr Stanaway pointed out, Dr Le Page (called by the defence) gave
the same kind of evidence, although perhaps not in full agreement with Dr
Zelas. There may have been one or two unimportant exceptions, but in the very
extensive evidence given by both these experts we detect nothing to
substantiate the suggestion that they overstepped the limitations imposed by
s23G and started expressing views on the credibility of individual
complainants. The final ground we deal with
under this heading is that in summing-up the Judge failed to put the defence
case adequately and adopted a prejudicial treatment of its approach.
Acknowledging that any summing-up must necessarily be tailored to meet the
demands of the particular case, Mr Panckhurst pointed to three aspects which
required consideration and emphasis. The first was that the jury must guard
against the extraordinary pressures of opinion in relation to this case,
which had generated extreme media interest about allegations which were
repugnant in nature, and where the parents were strongly committed to
supporting the prosecution. Counsel submitted that there should have been an
emphatic direction to the effect that the accused was entitled to a
dispassionate consideration of the case and that the standard directions to
juries covering sympathy or prejudice were inadequate in the particular
circumstances. He also claimed that it was not enough to mention the
direction about onus of proof only at the beginning of the summing-up. At the outset of the trial on 26
April the Judge gave a preliminary direction to the jury in which he was at
pains to urge them to reach their decision on a calm and dispassionate
consideration of the evidence, and to put out of their minds all that they
had read, seen or heard in the full media coverage of the affair. He repeated
this direction at the beginning of his summing-up on 3 June, emphasising
again that they must decide the case solely on the evidence unaffected by the
publicity or their feelings in the matter, and that their concentration must
be centred on the charges against the accused, since it was not a public
enquiry or a trial of the crèche. He then told them the onus of
proof on each charge was on the Crown from beginning to end of the case,
characterising it as an important matter which had also been mentioned by
both counsel. He then referred in conventional terms to the standard of proof
being beyond reasonable doubt. Twenty-five pages later he again brought up
the question of onus and proof beyond reasonable doubt when dealing with the
effect of evidence given by the accused. The summing-up ran to 41 pages.
The Judge had to deal with a multiplicity of charges, in accordance with his
direction to the jury that each had to be considered separately; and it was delivered
against the background of extensive closing addresses by counsel. These
commenced in the late afternoon of 1 June and continued all day on the 2nd,
with the defence address concluding at 11am on 3 June. The summing-up then
followed from 11.25am until 2pm with a short break. The need was obvious to
keep the directions reasonably concise if they were to be of any value in
these circumstances. With, respect, we think the Judge covered the salient
features of the case admirably. There was no need for him to continue harping
on the onus and standard of proof, as by that time the jury must have been
well aware of the situation. It was adequately covered in the summing-up. Nor do we see any substance in the
next complaint about the Judge's failure to point out the need for care in
the evaluation and acceptance of the children's evidence. As required by
s23H(c) of the Evidence Act he had to avoid telling the jury to scrutinise
young children's evidence generally with special care, or suggest that they
generally have tendencies to invention or distortion. He dealt at some length
with assessing the reliability and worth of each child's evidence, advising
the jury to take into account all relevant circumstances and to pay regard to
the inconsistencies as pointed out by counsel in determining whether the
essential allegations could be relied on. He summarised the important points
made by Dr Zelas and Dr Le Page, about which he suggested there was a
substantial measure of agreement about the development of young children. After making some further general
observations about the way different witnesses can have different
recollections of the same event, he concluded with the statement that neither
counsel really suggested that the children were being deliberately or
maliciously dishonest, the defence inviting them to conclude that they were
telling untruths because they had been consciously or unconsciously misled
into doing so. He added that the jury's decision about their evidence was of
fundamental importance, and it was prudent to proceed with caution, but he
rightly told them there was no presumption against children as witnesses. He
suggested that they apply a large measure of commonsense and their own
personal human experience in deciding whether they believed a particular
child about the essential elements of the charge. He then advised them to
look for any evidence which might support or contradict what the child said,
especially if it came from an independent source. We think counsel's
complaints about the way the children's evidence was dealt with cannot be
supported. The next complaint was that the
defence case was not adequately put to the jury. This submission started off
with the proposition that the Judge's opening comment was destructive of the
entire line of the defence and unfair. He said - "According to the Crown
each child has told the truth about the central matters. According to the
accused all of the children have told lies because of pressures on them from
parents, other children, or authorities". This was condemned as an
emotive distortion of the defence case, made at a time when it was likely to
have the greatest impact on the jury. In the section above about the way
the children's evidence was dealt with, we have already referred to the
Judge's statement about the defence claiming that the children were telling
untruths because they had been misled into doing so. With respect we think
that counsel are displaying an over-sensitivity in the present complaint. The
Judge was simply and starkly making the point that the case turned on
credibility, and the central issue was whether or not they believed the
complainants. We do not think any member of the jury would have thought that
the Judge was saying in effect that each of these little children had set out
deliberately and consciously to tell falsehoods. It is also claimed that the Judge
should have drawn the jury's attention to the bizarre content of some of the
children's interviews. There was no reference to this in the summing-up and
it was said to be an omission of a relevant feature on which the defence
relied in seeking to make its case that the whole interview process was
flawed. Nevertheless it is impossible to escape the conclusion that those
allegations must have been very much at the forefront of the jury's mind,
simply because they would have been so far outside the ordinary experience of
jurors. No doubt they would have been emphasised by defence counsel. The
acquittals on those counts in which such conduct featured tend to confirm
these conclusions. Finally it was submitted that in
telling the jury the case was not a trial of the other crèche workers' conduct, nor of the conduct of the
police, parents, or special interviewers, and in emphasising that their concentration
or focus must be upon the charges, the Judge deflected their attention from a
proper consideration of their conduct. However, he did tell the jury that
aspects of those persons' evidence may well have an effect upon the decisions
they make in the case. As with his earlier rulings about collateral matters,
he was correctly seeking to limit their consideration of the evidence to
those aspects which were of relevance to the charges themselves. We think the jury had sufficient
information about the way the interviews were conducted to make a proper
assessment of the children's evidence. In summarising the general points made
by counsel for the accused at the trial, the Judge was presumably reflecting
the way the defence case had been put, concentrating on the reliability of
the children's evidence rather than on the way it had been obtained. There
was particular reference to the defence contention that ideas had been put
into their heads by parents and others and by the publicity which had been
given to the case. If the Judge had got the defence case so badly wrong as
counsel are now suggesting, it seems strange that there was no request at the
close of the summing-up for him to rectify the omission. We are satisfied that there is
nothing of substance in the grounds raised under miscarriage of justice
causing us any concern over the guilty verdicts. We now turn to the
alternative ground that the verdicts on some counts were unreasonable or
resulted from a miscarriage of justice because they were inconsistent. The first related to child D, in
respect of whom Ellis was convicted on count 6 of doing an indecent act when
he urinated on his face and put his penis in his mouth, but was found not
guilty on count 7 of indecent assault involving putting a stick into his anal
area. From the evidence about these counts summarised above, it is obvious
that there were substantial differences which led the jury to accept the
earlier interview disclosure but reject the more bizarre one described at the
third interview. Juries are always told that it is over to them to decide
which parts of a complainant's evidence they accept and which to reject, and
simply from the fact that they acquitted the accused on the second charge, it
does not follow they were wrong to believe the child's evidence on the first. Counsel raised an ancillary matter
in submitting that this boy's statement to his mother that Ellis did
"wees and poos on the children" should not have been admitted under
the recent complaint rule. We disagree, and are satisfied that the Judge gave
an appropriate direction as to the use the jury could make of this evidence.
It is clear that the person to whom the complaint is made can give evidence
of it, notwithstanding that the complainant himself said nothing about it in
his evidence - see R v Nazif [1987]
2 NZLR 122, 125. The next allegation of
inconsistency relates to child F, where guilty verdicts were brought in on
counts 9 and 10 of committing an indecent act by urinating on her face in the
crèche toilets, and of inducing an
indecent act by having her bathe with him. He was acquitted on counts 11 and
12 of attempted sexual intercourse and indecent assault involving touching
her bottom with a needle. The first two charges were based on the first
interview in May 1992 while the other two episodes were disclosed in August
1992. Once again there are sufficient differences in the surrounding
circumstances and the timing of the interviews to enable the jury to accept
the complainant's earlier accounts and reject the later ones. Finally the accused's acquittal on
count 19 of doing an indecent act on child G was contrasted with his
conviction on counts 16, 17 and 18 involving indecencies and sexual
violation. Again, the not guilty verdict was given in respect of disclosures
at a later interview describing bizarre events. It is not surprising that the
jury acquitted there, but convicted on the charges which could be more
readily comprehended. Our overall judgment of the case
is that after this long trial the jury were fully justified in their
conclusion that charges against the accused had been established beyond
reasonable doubt. It is significant that the trial Judge in his sentencing
remarks expressed his agreement with the verdicts, describing them as
'obviously correct'. There were some particularly telling pieces of evidence
- such as the references by children to 'white sticky' or 'yucky' stuff and
'Peter calls it secret touching'; and the evidence of the accused's unusual
interest in 'golden showers'. Great risks of detection may have been run, but
that is not uncommon in cases of indulgence in a perversion. The jury
deliberated for more than two days and brought in carefully discriminating
verdicts which can be seen as conservative. The claims that the evidence of
the children was contaminated by interviewing techniques, parental hysteria
or the like lack any solid basis. The whole matter has been very thoroughly
and competently examined by counsel at the appeal hearing, and as a result we
have no misgivings about the outcome of the trial. Conclusion on Conviction Appeals For the foregoing: reasons we are
satisfied that none of the grounds of appeal has been made out, but because
of the doubts raised by child A's subsequent retraction, the appeal is
allowed in respect of counts 1, 2 and 3. In respect of the other counts it is
dismissed The Crown, does not seek a new trial on those counts, reflecting
our view of the undesirability of submitting the child and her parents to the
trauma of another hearing. We therefore direct a judgment and verdict of acquittal
be entered on counts 1, 2 and 3. Sentence Appeal Mr Panckhurst informed us that his
client had instructed him that he does not wish to argue that the conduct of
which he stands convicted (although he still denies it) does not warrant the
sentence of 10 years imposed, and this applies even though the convictions
involving child A have now been set aside. We recognise this as a responsible
- and inevitable - attitude which correctly reflects the gravity of such
offending, and the sentence appeal is also dismissed. |
