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Coram Gault J Henry J Thomas J Tipping J Appearances J M S P France, M J Thomas and C J Lange for the Crown Judgment 14 October 1999 Judgment of the Court Introduction [1] Peter Hugh McGregor Ellis faced trial
in the Christchurch High Court on 28 counts alleging sexual offences against
a number of young children attending the Christchurch Civic Childcare
Centre. The trial commenced on 26
April 1993 and at its conclusion some six weeks later he was convicted on 16
counts. Three were the subject of a
discharge by the Judge during trial, and 9 verdicts of acquittal were
entered. On 22 September he was
sentenced to an effective term of 10 years imprisonment. On appeal to this Court, in a judgment
delivered on 8 September 1994 now reported as R v Ellis (1994) 12 CRNZ 172, three of the counts against one complainant
were because of her retraction quashed and verdicts of acquittal directed,
but the appeal was otherwise dismissed.
Following two applications made to the Governor‑General, acting
pursuant to s406(a) of the Crimes Act 1961 His Excellency referred the
question of the 13 convictions to this Court for hearing and
determination. The Order in Council is
dated 12 May 1999, identifies five broad grounds contained in the
applications, and records these as forming the reasons for the reference. [2] The background is summarised in the
judgment of 8 September 1994, and as it is in a form which is appropriate
also for the purposes of this appeal, the substance of it can conveniently be
repeated. [3] The Christchurch Civic Childcare
Centre, the subject of these allegations, was established in the Arts Centre
at Montreal Street some time before September 1986 when the appellant
commenced employment there as a reliever.
He was given a permanent position in February 1987 and commenced a 3‑year
course towards a “Childcare Certificate” which he completed and passed in
1990. In January 1989 the crèche
moved from the Arts Centre to the former [4] He is now 41 (born on 30 March 1958)
and is single with no dependants. The
descriptions of him given by fellow workers and parents in their evidence
would seem to support the following assessment in his pre‑sentence
report: The overall picture
gained of Peter Ellis is that of an outgoing, uninhibited, unconventional
person given to putting plenty of enthusiasm and energy into his work and
social activities, sometimes to the point of being risqué and outrageous. He was also described as
“a colourful and ebullient student” by his tutor who saw him frequently at
the crèche where he was noisy and very visible; she said he was regarded as the “darling”
of the Centre by parents and colleagues alike. He certainly engaged in boisterous games
with the children and played tricks on them, not all of which were
appreciated, according to their interview statements. The supervisor and other workers gave
evidence that they saw nothing in his behaviour suggesting sexual abuse of
the children. [5] On 20 November 1991 a mother reported
to the principal of the Centre something her son had said about the
appellant, following which he was placed on temporary leave and shortly
afterwards suspended: a complaint was made to the police and the Specialist
Services Unit of the Department of Social Welfare commenced interviewing
crèche children. Having discussed the
matters on 25 November, the management committee called a meeting of
parents at the crèche on 2 December 1991 which was attended by police and
Social Welfare representatives. There had been some media publicity and the
object of the meeting was to advise parents that there were concerns, but no
specific allegations. They were
asked to look for any noticeable changes in their children’s behaviour and
any events which might explain them. [6] Ms Sidey, a psychologist with the
Specialist Services Unit, talked to them about the interviewing process and
what was involved with it and said that if parents did have concerns about
their children they could be discussed with her and a decision made on
whether to interview them. Ms Sidey
then began a video-recorded interview process and by 30 January 1992 (when
the first allegation of sexual abuse was disclosed) she had seen about six
children. [7] Interviews continued with those children
whose parents had concerns and Ms Sidey had the assistance of two other
specialists. They were conducted in
accordance with the Evidence (Videotaping of Child Complainants) Regulations
1990. Generally before an interview
commenced there would be a short discussion between the interviewer and the
parents covering any disclosure the child had made and their responses to it,
and any behaviour they had noted, with possible explanations for it, and the
child’s background and friends and contacts with other crèche children. [8] These interviews were conducted under
the overall supervision of Dr Karen Zelas, a specialist child psychiatrist
with international experience in the field of child abuse. It was a massive exercise and overall there
were interviews of 118 children, most of them disclosing no abuse and serving
to reassure parents. In some cases
there was mention of abuse but the parents did not wish to put the child
through the Court process. The
interviews continued throughout 1992 with most of the present complainants
being interviewed a number of times. [9] The appellant was arrested on 30 March
1992. He had been interviewed by
Detective Eade of the Christchurch Child Abuse Unit and consistently denied
any misconduct. On 31 March there was
a meeting of crèche parents at Knox Hall, [10] On 2 November 1992 the deposition
hearing commenced, concluding on 4 February 1993, when the appellant and
four other crèche workers were committed for trial. The committal covered a total of 42
charges involving 20 children. As
against the appellant, the Crown elected to bring only the 28 charges
relating to 13 children on which he stood trial. [11] On 6 April 1993, following a pre trial
application three of the other crèche workers were discharged under s347 of
the Crimes act 1961. Lack of evidence
of sufficient weight, undue prejudice and delay combined to lead the Judge to
take that course. The draft
indictment against those persons charged each with being a party (by way of
encouragement) to an indecent act committed by the appellant on one of the
children. For the purposes of this
and other pre trial applications before him, the Judge had available
extensive affidavits from both Dr Zelas and Dr Le Page, the latter also being
a psychiatrist and child abuse expert.
He was to be a defence witness at trial. The remaining worker had been discharged
because the complainant in question was unavailable to give evidence at
trial. Section 406 Crimes Act 1961 [12] Section 406 of the Crimes Act 1961
provides: Prerogative of mercy - Nothing in this Act shall affect the prerogative
of mercy, but the Governor‑General in Council, on the consideration of any
application for the exercise of the mercy of the Crown having reference to
the conviction of any person by any Court or to the sentence (other than a
sentence fixed by law) passed on any person, may at any time if he thinks
fit, whether or not that person has appealed or had the right to appeal
against the conviction or sentence, either- (a) Refer the question of the conviction or
sentence to the Court of Appeal or, where the person was convicted or
sentenced by a District Court acting in its summary jurisdiction or under
section 28F(2) of the District Courts Act 1947 to the High Court, and the
question so referred shall then be heard and determined by the Court to which
it is referred as in the case of an appeal by that person against conviction
or sentence or both, as the case may require; or (b) If he desires the assistance of the
Court of Appeal on any point arising in the case with a view to the
determination of the application, refer that point to the Court of Appeal for
its opinion thereon, and the Court shall consider the point so referred and
furnish the Governor-General with its opinion thereon accordingly. As noted earlier, the
reference is made under subsection (a).
[13] It is important to approach the
reference in accordance with established principle. On a reference by the Governor-General on
a question of conviction or sentence, the Court of Appeal is not called upon
to re‑adjudicate upon any ground of appeal that has already been heard
and disposed of on the merits, unless a new matter has come to light which
makes a reconsideration of the ground necessary or desirable (Laws of New Zealand : Criminal Procedure
para 348). In R v Morgan [1963] NZLR 593 North J delivering the judgment of
this Court said at 596: It seems unlikely that
in a case in which there has already been an appeal which has been disposed
of on the merits, the Court would regard itself as obliged to readjudicate
upon any ground that has already been heard and disposed of unless some new
matter had come to light which made a reconsideration of the ground necessary
or desirable: In re O’Connor and Aitken (No 2) [1953]
NZLR 776,784 citing the Australian case of R v Gunn (No 2) (1942) 43 SR (NSW 27). If no new matter has
come to light which in the opinion of the Executive Council makes a
reconsideration of a ground of appeal necessary or desirable, but
nevertheless the Executive Council, contemplating the exercise of the
prerogative of mercy, desires the assistance of the Court on any specific
point arising in the case, then it would appear to us that generally speaking
it would be more appropriate for the reference to be made pursuant to
subs.(b), at all events where the appellant has already exhausted his rights
of appeal. [14] In R
v Gunn (No 1) (1942) 43 SR (NSW) 23 at 25 on a very similar statutory
provision Halse Rogers J said: When the section directs
that the case referred shall be heard and determined as in the case of an
appeal by a person convicted I do not think it is contemplated that the
matter already regularly dealt with and disposed of in an appeal - a matter
already ‘heard and determined’ - should be reopened and again heard and
determined on the same grounds. Such
an interpretation would mean that the section confers on the Minister the
power, in effect, to direct the Court to rehear any appeal and not once but
any number of times. Such a reading
does not seem to me possible. In my opinion on the
reference of the whole case this Court starts from the position that certain
matters have been heard and determined, then proceeds to hearing and
determination on any new matter which is brought before it. [15] In R
v Gunn (No 2) (1942) 43 SR (NSW) 27 Jordan CJ said at 29: I am of the opinion that
the Court, in the case of a reference such as the present, is not called upon
to readjudicate upon any ground of appeal which has been already heard and
disposed of, unless some new matter has come to light which makes a
reconsideration of the ground necessary or desirable. [16] The above passages were cited with
approval by the Full Court of the Supreme Court of Victoria in Re Matthews and Ford [1973] VR 199
considering the jurisdiction under s584(a) Crimes Act 1958 (VIC), which is
substantially the same as the New Zealand provision. [17] As this Court also made clear in Ellis v R [1998] 3 NZLR 555, the
hearing and determination of references under s406(a) is confined to the
matters raised in the reference: Even if not compelled by
the language of s406(a) we are satisfied that, comformably with the
legislative policy underlying the provision and with the course adopted in
this country since Morgan, as a
matter of practice the hearing and determination of references under s406(a)
should be confined to the matters raised in the reference. [18] The fundamental enquiry is whether taken
individually or collectively the grounds of appeal demonstrate that there has
been a miscarriage of justice, requiring one or more of the convictions to be
set aside. It is also important to
keep in mind that the function of the Court, indeed its only jurisdiction, is
to treat the reference as an appeal brought pursuant to the Crimes Act
1961. The practice of the Court as
regards the reception of fresh evidence is therefore applicable, subject to
the reservation recognised in R v
Morgan (supra), and more recently in Collie
v R [1997] 3 NZLR 653, where in delivering the judgment of the Court
Eichelbaum CJ said at p657: The Court should be
given information of the considerations which have caused the
Governor-General in Council to make the reference. If as would invariably be the case the
appellant wished to rely on the material placed before the Governor-General,
an application for leave to adduce fresh evidence is required. The normal rule that fresh evidence will
not be received unless it is shown that such evidence is new or fresh in the
sense that it was not available at the trial is not always applied with
rigidity if there is reason to think that to do so might lead to injustice,
or the appearance of injustice. In
this respect each case has to be decided on the merits. The manner in which this
Court approaches new evidence, if received, is set out in R v Barr (Alistair) [1973] 21 NZLR 95
at p98. It is unnecessary to repeat
the passage in full: for present
purposes it is sufficient to say that where the fresh evidence is or might be
regarded by a jury as credible, and although not conclusive has a
sufficiently significant bearing on the case to justify that course, the
normal outcome would be a new trial, unless it was a situation where the
proviso to s385(1) of the Crimes Act could be applied. [19] The above cases confirm that the
ultimate function of the Court is to decide the case on its true merits. But in doing so, it is still necessary if
the overall interests of justice are to be met, to apply established rules
and principles. To do otherwise would
be to make unacceptable inroads into the due and consistent administration of
justice. [20] The reasons for the reference as stated
in the Order in Council are: (a) That
material is supplied in the first and second applications that indicates that
a miscarriage of justice might have occurred because of the techniques used
to obtain the evidence of the child complainants; and (b) That
material is supplied in the first and second applications that indicates that
a miscarriage of justice might have occurred because the significance of
child complainants’ retractions of their evidence was not properly
understood; and (c) That
material is supplied in the first and second applications that indicates that
a miscarriage of justice might have occurred because the risks of
contamination of the child complainants’ evidence were underestimated and not
properly investigated, which may have consequences for the reliability or
credibility of the child complainants’ evidence; and (d) That
a miscarriage of justice might have occurred because of Oral Ruling 14, when
the ruling is considered in the light of the reasons in paragraphs (a) to
(c); and (e) That
material is supplied in the first and second applications that indicates that
a miscarriage of justice might have occurred because of jury bias; and (f) That,
if the applicant establishes that the material referred to in clause 11 was
not disclosed to his counsel at trial, a miscarriage of justice might have
occurred because material that was material to the defence was not disclosed
to it. [21] It is clear that the reasons are based
upon grounds put forward in the first and second applications. those now
relevant being recorded in the Order in Council as follows:
(1) One
ground of the first and second applications is, among others, that, since the
applicant’s appeal material has become available or obtainable that shows- (a) That the methods used to interview child
complainants were seriously flawed;
and (b) That
the risks of contamination of the child complainants’ evidence were
underestimated and not properly investigated. (2) The submissions in support of this ground
include- (a) That
the techniques used to interview the child complainants in the applicant’s
case were materially defective, having regard to the findings of expert
research over the last 5 years; and (b) That
the risks of contamination, and the special hazards that arise from mass
allegations, in the child care environment were not recognised; and (c) That
the matters described in paragraph (a) or paragraph (b) or both paragraphs
may affect the reliability or credibility of the child complainants’
evidence.
One ground of the first
and second applications is, among others, that, since the applicant’s appeal,
it has become clear that the significance of child complainants’ retractions
of their evidence was not properly understood.
(1) One
ground of the first application is, among others, that the applicant did not
receive a fair trial because of rulings made at the trial relating to the
admissibility of evidence. (2) The
submissions in support of this ground include the submission that, as a
result of Oral Ruling 14, the jury was deprived of material relevant to the
assessment of the reliability or credibility of the child complainants’
evidence.
(1) One ground of the first and second
applications is, among others, that, since the applicant’s appeal, it has
become clear that the jury which convicted him failed to disclose that it
might not be impartial and as a result he did not receive a fair trial. (2) The
jurors involved are- (a) “Juror A”, who is said to have had a
connection to a Crown witness through the juror’s intimate partner. (b) “Juror B”, who is said to have expressed
the view in a public place that the applicant was guilty, before the case for
the prosecution was complete: (an allegation concerning
“Juror C” was not pursued, there being no evidential basis to support it.)
(1) One ground of the first and second
applications is, among others, that material that was clearly important for
the defence- (a) Existed at the time of the applicant’s
trial; and (b) Was in the possession of the Crown at
that time; and (c) Was not disclosed to the defence. (2) The material includes- (a) Photographs; and (b) Documents relating to the issue of
contamination of the child complainants’ evidence by parents. [22] The grounds of appeal before this Court
are those identified in the reference.
They will require separate consideration. Evidence on Appeal [23] The rules and principles are well
established, and their very purpose is to ensure the overall interests of
justice are met. In the criminal law
context, the rules of evidence are directed in a very real sense to protect
the entitlement of an accused person to a fair trial. For obvious reasons, the rules in general
apply to the defence as well as the prosecution. In the appellate process, the introduction
of fresh evidence is controlled to recognise that it is an appeal from a
finding which has already gone through the full trial process, and not simply
a re‑run whether on the same basis, or on a different one later
perceived as being better than that adopted at trial. The attainment of justice and fairness is
not to be assessed from the sole viewpoint of an accused or a convicted
person. [24] In all cases, regardless of the
existence of what may be termed high public profile, the essential aim is the
due administration of justice. That
includes as paramount considerations ensuring an accused person has a fair
trial, and if convicted a right of appeal which fairly evaluates that
conviction, if appropriate in the light of further evidence which the Court
can and should properly take into account.
The principles upon which both processes are undertaken have been
carefully evolved over a period of time, and are designed to protect the
rights of the individual. The right
of society to bring guilty persons to justice must, however, not be
overlooked in the process. [25] Regrettably the appellant’s argument
throughout contained references to and reliance on material which was not
properly before this Court and had not been the subject of any application
for its reception (Collie). Included were documents such as police job
sheets, out of court statements by witnesses, and statements by persons who
did not give evidence - all unproved and untested as to reliability. This
approach has caused a measure of concern.
The Court was urged to accept and pay regard to all the material “in
the interests of justice”. How the
interests of justice are furthered by a failure to adhere to established
rules and basic principles applicable to both the trial and the appellate
processes was not made clear. [26] The Court’s function has not been helped
by the fact that the new evidence now properly before it in the form of
expert opinion is based in part on what we have described as unproved and
untested material. Care must be taken
in the way such material should be used for the purposes of this appeal. It can have legitimate uses, but it is not
in the interests of justice to extend those uses beyond proper and
established limits. Of concern also,
is that selective material was made available to the experts, which did not
include for example the cross‑examination at trial of the complainants,
the trial evidence of persons such as the parents who were directly involved
in the alleged influencing of child complainants, or the comprehensive cross‑examination
of Ms Sidey and the other interviewers conducted at the depositions
hearing. The value of the evidence
must therefore be assessed in the light of those matters. The primary purpose of expert evidence in
a situation such as the present is to demonstrate the existence of problems
affecting the children’s credibility which were not known or adequately
appreciated at the time of trial. It
can also be of assistance in then assessing whether overall there has been a
miscarriage. It is not simply a
supplement to the trial evidence, neither is it legitimate for the experts to
express opinions as to actual credibility - a temptation which has not been
entirely resisted in the affidavits. [27] The Court was supplied with a number of
articles, reports and commentaries on the problems associated with obtaining
evidence from child complainants of their sexual abuse. Some were exhibited to affidavits from
expert witnesses, others were made available during the course of the
hearing. Again there is a limited use
which the Court can properly make of that material. Included in the material were extracts from
the Report of the Inquiry Into Child Abuse in Cleveland 1987 (referred to by
the trial Judge in a pre-trial ruling), the Report of the Inquiry into the
Removal of Children From Orkney in February 1991, the 1992 Memorandum of Good
Practice (England), the joint New Zealand Children and Young Person's Service
and Police operating guidelines of March 1997, and the Final Report of the
Royal Commission Into the New South Wales Police Service of May 1997. It is impossible, and in our view it would
be inappropriate, to attempt to undertake a comprehensive analysis of it with
a view to reaching a conclusion on some particular aspect of relevance to the
present appeal. Such an exercise is
more the function of a formal commission, which is empowered to enquire into
and report upon certain defined matters.
This Court is not the forum for reviewing or evaluating the
conclusions reached by the various authors, some of which understandably in
these difficult and constantly developing areas are conflicting. [28] Some of the material is informative and
useful background material. It has not
been overlooked, but for the purposes of this appeal, we are of the view that
the Court should concentrate on the expert opinion evidence placed before it
in the form of the affidavits filed, looking where appropriate to the
material expressly relied upon by those persons to support the opinion or the
conclusion in question. If the
present questions are not approached on a principled basis, there is a risk
that the appellate process will be subverted. There may be matters which are worthy of,
and could properly be addressed by, a commission of enquiry, but the Court
cannot undertake that kind of function under the guise of an appeal under the
Crimes Act 1961. First ground of appeal -
contamination and interviewing techniques (a) General [29] The first two grounds of appeal were
presented under the headings of contamination and interviewing
techniques. The submissions in support
contained a considerable degree of overlap without any definitive separation,
and the two can therefore conveniently be considered together. It is sufficient for present purposes to
group both under the topic of contamination, because in substance what is
contended is that the videotaped interviews, and the children’s confirmation
of the abuse allegations at trial, were so affected by a number of factors
that the evidence was unreliable to the extent that the convictions must be
considered unsafe. In considering
this head of the appeal, it is necessary to keep firmly in mind the function
of this Court, a topic to which reference has already been made. At trial, and at the 1994 appeal,
credibility of the children was under strong attack. The issue of contamination (including in
that description interviewing technique failings) had been at the forefront
of the defence contentions at depositions, at two pre-trial applications as
well as at the trial itself. In
pre-trial Ruling No. 2 the Judge rejected an application to exclude the
evidence of the complainants.
Specifically it was submitted in support: there had been direct and suggestive
questioning by parents despite being cautioned against doing so, the
collating and sharing of information between parents through support groups
had fuelled a climate of fear, the disclosure interviewers incorporated
direct and suggestive questioning, multi choice questioning, repeated
questioning, repeated interviews and inappropriately used anatomically correct
dolls. In pre-trial Ruling No. 4 on
an application to discharge under s347, reliance was placed on
inconsistencies within the children’s evidence, contamination by parents and
other children, and faulty interview procedures. The foundation of the s406 reference in
respect of this ground is that since the appellant’s appeal, material has
become available or obtainable that shows there are matters which may affect
the children’s reliability or credibility. [30] The Court is therefore required to examine
the material now proffered as being in support of that, and to assess its
cogency and significance. The basic
approach is to ask whether that material is such that had it been made
available to the jury, findings that the burden of proof had not been discharged
may have resulted. No criticism of
trial counsel was advanced, so the adequacy of the use to which known or
available material was put at trial is not in issue. [31] A difficulty in undertaking the exercise
arises from the way in which the appellant’s case has been presented. Notwithstanding the stated basis of the
reference, there has been no focus on identifying with clarity what is now
said to be significantly different from what was known or understood about
this issue of contamination in 1992, or 1993 or 1994. The first step must be to identify the new
factors which are said to impinge on credibility. The second step is to determine whether
they are of such a nature and significance that the Court should
interfere. On that enquiry, the
overall picture will properly come under scrutiny so that the impact of the
new factors can be assessed. But to
approach the appeal simply by considering the effect of the new evidence and
the resulting criticism of the trial experts regardless of whether it
discloses any factors additional to those known at trial must be wrong in
principle. Because both the written
submissions and the expert evidence tended to comprise a challenge to
credibility of the children’s evidence by analysing particular contaminating
factors in a general way, it is necessary to extract what are new factors
which could throw a different light on or give a different dimension to the
trial testimony. In doing that,
recognition should also be given to factors which were previously seen as of
relevance, but their relative significance can now be said to have altered by
reason of ongoing research and experience.
The extent of any change is of course critical in that regard. What must also be borne in mind is that
empirical research on cases of the accuracy of allegations of traumatic
sexual abuse on children is necessarily very limited - its very definition
precludes anything in the nature of clinical trials, and the ascertainment of
accuracy is seldom capable of finite assessment. [32] In considering the effect of the new
evidence, the extent to which contamination was addressed at depositions and
at trial is relevant as it assists in identifying what was known and
appreciated at that time. The depositions
hearing was lengthy. It involved five
defendants, and covered more complainants and more charges than the trial did
- the record contains almost 1100 pages of transcript excluding the prepared
briefs which were read or handed up.
Oral evidence given included that from the parents of the
complainants, and the three interviewers.
All were cross‑examined, some extensively. [33] Pursuant to an order made under s23E of
the Evidence Act 1908, the trial evidence of the child complainants was given
by way of the videotape interviews.
Additional oral evidence, including cross‑examination, was by
closed circuit television. The Crown
case included evidence from a parent or parents of each complainant, and from
Ms Morgan and Ms Sidey, who had conducted the evidential interviews in
question. In addition Dr Zelas gave
expert evidence in terms of s23G of the Evidence Act, and also on the topic
of contamination generally, including children’s memory and recall
capabilities. The Crown also called
medical evidence, and other crèche workers who had been employed over the
relevant times, including one of the women who had been arrested but
discharged after depositions. Police
evidence included that of Detective Eade, the officer in charge of the
investigation. Evidence for the defence
was given by the appellant, other parents who had children attending the
crèche at relevant times, and a number of other crèche workers including the
remaining two who had been earlier discharged under s347. The defence expert was Dr Le Page, who
gave evidence as to children’s recall ability and their suggestibility. He had earlier made an affidavit in
support of a series of pre‑trial applications. [34] There was evidence that the appellant
spoke to other crèche workers on sexual topics, describing particular
practices, some of which bore similarities to some of the more bizarre
incidents described by the children.
In particular the practice of urinating over a partner was mentioned
(which he described as “golden showers”), this kind of conduct featuring in
several of the charges. The appellant
denied some of the conversations, and those admitted he said were not
statements of truth, but were meant to shock the other workers. (b) The
new evidence Dr Parsonson [35] Dr Parsonson is a psychologist of
considerable experience, whose expertise in aspects of sexual abuse and
children’s testimony is unquestioned.
In November 1997 he prepared four reports directly relevant to the
appellant’s trial. They were presented
with the first application to the Governor‑General which was received
on 2 December 1997. The reports
covered the development of memory in children, the interviewing of children,
contamination, and retraction. The
last mentioned is relevant primarily to a ground of appeal which will require
separate consideration. Dr Parsonson
prepared three further reports completed in March 1999 relating to the
present evidential interviews. For
the purposes of the opinions expressed in this affidavit, Dr Parsonson had
access to other material including a transcript from a “Holmes” television
show of March 1992, a document prepared by Mrs Ablett‑Kerr, police job
sheets, and notes made by the mother of one complainant. The only trial evidence referred to him
comprised the videotape interviews and transcripts of six complainant
children and the notes of evidence relating to Ms Sidey, Ms Morgan,
Dr Zelas and Dr Le Page. [36] On the question of young children’s
memory, Dr Parsonson concluded that research demonstrated there were a
variety of ways in which perception, storage, recall and resulting accuracy
in reporting experiences may be affected.
These included suggestibility, pressures, repetitive questioning,
which could lead to errors and the creation of answers to satisfy the
inquiring adult. [37] On evidential interviewing, Dr Parsonson
summarised the research findings as showing:
unequivocal support for the use of free recall and open questions as
the primary means of evidence gathering; suggestibility is not the only
adverse influence on accuracy; the use
of props contributes little to accurate reporting and can promote
inaccuracies; repeated questioning has
a negative effect on quality and veracity;
lapse of time is associated with reduction in accuracy; adult attention and rewarding of verbal
interaction can be a source of contamination;
and the need for careful examination for potential contamination is
greater where there are multiple complaints from one group of children. [38] Dr Parsonson also noted what he termed
the key differences in the understanding of interviewing techniques as at
1992 and as at 1999. These can be
summarised. First, the absence in
1992 of specific instructions or guidelines.
Second, there has been more sophisticated research of factors
influencing suggestibility of memory and the accuracy of responses. Third, the use of anatomically detailed
dolls has now largely ceased, although the value of their use was doubted in
1992. [39] In respect of the interviewing
techniques actually used in the seven instances analysed, Dr Parsonson was
critical of the extensive use of closed and multiple choice questions, the
failure to instruct the children clearly that to use “I don’t know”, or “I
don’t remember” was acceptable, the extensive use of props, the repetition of
questions, the number of interviews of particular children, and the possible
bias of interviewers from such sources as contact with parents, police and
the fact that such large numbers of people were involved. Dr Parsonson was generally critical of the
performance of the interviewers;
concluding that even by the standards at the time the methodology was
questionable. In the light of a
further seven years research, he expressed the view that the standards
observed fell far short of those necessary for obtaining accurate reports
from the children. Dr Lamb [40] Dr Lamb is a psychologist resident in [41] In discussing the investigation
procedures, Dr Lamb first identified four factors as influencing children’s
competence (reliability) in the present context. The first was the use of props such as
dolls or toys, which can tend to elicit elements of fantasy. Dr Lamb expressed the view that although
in this case the practice did not appear to generate high levels of obvious
fantasy, it was associated with inattention to the serious business of
investigation. The second factor was
the language and communicative abilities of the children, which are aspects
relevant to interviewing techniques and the quality of information
received. The third was memory
evaluation, and the effects of delay between event and retrieval. The fourth factor was termed suggestibility,
and involved factors such as interviewer motivation and the incorporation of
misinformation into children’s memory, compounded by delay. [42] Although he found the analysis of the
interviews showed only 6% of the interviewers’ utterances were suggestive and
they were therefore unremarkable in that respect, Dr Lamb noted a concern
because the children appeared to have been exposed to extensive suggestive
questioning in informal contexts, such as with parents. He also observed that the interviewers
obtained less than 50% as much information using open questions as did
interviewers in the [43] As to the interviewing techniques
adopted, Dr Lamb noted that there were recommended techniques widely endorsed
at the time of these interviews, which the interviewers claimed to have
followed. Dr Lamb’s analysis of the
interviews, which compared them with those conducted in other jurisdictions
(some before and some following the introduction of protocols after 1992),
showed that substantially less information had been obtained in this case by
open‑ended questions or invitation.
The analysis also demonstrated that a substantial number of
contradictions emerged in response to a focused question, in contrast with an
absence of contradiction by use of an open‑ended question. Dr Lamb’s conclusion was that there was a
heavier than necessary or desirable risk of focused questions, and that was a
deviation from best practice. [44] While it is accepted that psychiatric
and psychological knowledge of interviewing techniques has improved, what is
important for present purposes is that Dr Lamb did not express the view that
the best practice techniques referred to were not known and appreciated in
1992, nor did he suggest that any of the criticisms now levelled at the
interviews could not have been mounted with equal force in 1993. The adverse factors of delay, possible
parental or other outside contamination, and the use of focused questions
(not open‑ended) were all known and appreciated at the time of trial,
and importantly were directly addressed, extensively so at depositions. [45] As to contamination, Dr Lamb noted the
young age of the complainants at the time of the alleged offending, the delay
before interview, conversations with anxious parents, and repetitive
questioning. He also drew attention
to the failure of interviewers to pursue alternative hypotheses to explain
the allegations, and their apparent (to the children) knowledge of the
alleged incidents. Dr Lamb also
placed reliance on what he described as Detective Eade’s frequent contact
with the children and parents as providing unchecked opportunities for
conveying information. The basis for
these observations is also unclear.
His conclusion was that there was a high risk of contamination. [46] Again, under this heading of
contamination there was no direct focus by Dr Lamb on any significant
change since 1992 or 1993, the thrust of the affidavit being directed to criticising
the procedures. He did refer to the
existence of research since 1992 which has been increasingly specific and
helpful to interviewers in understanding factors which influence children’s
ability to provide accurate information about what they have
experienced. Contamination from all
the sources identified was explored at trial, although one aspect of the
interviewing procedures not specifically addressed appears to have been use
of the “alternative hypotheses” enquiry. Other Experts [47] In response to the affidavits of Dr
Parsonson and Dr Lamb, the Crown proffered an affidavit from Dr Constance
Dalenberg, a psychologist resident in California, United States of America
and a recognised expert who has been involved extensively in research, clinical
and forensic evaluation of child sexual abuse victims. Her brief was to comment upon the
literature, reviews and summaries referred to or contained in the affidavits,
and not to analyse the specific interviews.
In the course of her critical analysis of the affidavits, she referred
to non‑controversial points, such as the use of leading questions, the
fallibility of memory and the effect of lapse of time, and the problems
created by repeated questions. She
also identified issues they had covered which she considered either
controversial or misleading, and was critical of the validity of some of the
definitive conclusions drawn by them from research data. Her evidence is conveniently summarised in
her conclusions: “Recantation and
fantastic elements are not evidence of the falsity of a child abuse
allegation by a five year old child;
children of this age are quite resistant to misleading suggestions of
the type allegedly posed; the use of
props and anatomical dolls does not undermine the credibility of the
children’s allegations; the demeanour
of the children, if accurately described, is not inconsistent with true
allegations of child abuse.” [48] Dr Dalenberg’s affidavit drew three
responses from the appellant’s advisers.
First, Dr Maggie Bruck of [49] The reply affidavits of both Dr
Parsonson and Dr Lamb are no more than re‑assertions of their own
respective positions, and also serve to demonstrate the existence of
difference of approach and of analysis of research data - as is re-emphasised
by Dr Dalenberg’s second affidavit. [50] A number of factors were identified by
the experts as impinging on the accuracy or reliability of the evidential
interviews. All main factors were discussed
at trial or depositions, and in most cases at both. The following picture emerges. [i] Form
of questions An interviewer may prompt
free recall, by asking the child to tell the interviewer what happened in
their own words. If the interviewer
asks questions, open questions are best.
Open questions are questions that do not suggest an answer, they ask,
for example, “what did you do at crèche”.
These questions allow the child to freely recall everything they are
able. It is accepted that open questions
and free recall elicit the most accurate information from a child, though the
amount of information may be limited, especially with young children. The inability of children to remember
events with open questions stems from the level of development of their
memories. The ability of children to
encode, store and retrieve information is not fully developed at pre-school
and early primary school age. Young
children can only encode events and information into their memories using the
skills and language they have at the time of the event. Storage of information can also be
problematic in young children, as they tend to forget information over
time. The events are remembered
according to the skills the child has at the time the child is trying to recollect
the event. If the child was very young
at the time of the event, and had only limited abilities, that makes it
difficult for the child to be able to give a comprehensive and perhaps even
plausible account of what took place when they recall it at a later
stage. The topic of memory was
discussed extensively at trial. It
appears that the understanding of the experts at trial as to the memory
capabilities of young children substantially coincides with that of the
current experts. Leading questions are
those that contain suggestions such as “Did Peter touch you?” Direct questions direct the child’s mind
to a certain event and prompt recall of the circumstances surrounding that
event. While these questions may
elicit more information from the child, research has shown that there is more
risk of inaccuracies in information elicited through direct and leading
questions than from open questions.
Leading questions may also contaminate the child’s memory, since they
can implant suggestions into the child’s memory, filling gaps that may exist
due to the development level of the child.
There is evidence that children not only respond inaccurately to
misleading or suggestive questions, but incorporate the misinformation into
their memories of the event. This is
exacerbated by the delay, since there is more opportunity for the memory to
fade and be contaminated by misinformation. Multiple choice questions
are also problematic, in that they provide the child with a suggested
answer. The ways in which interviewers
seek information from children has a major impact on the quality of that
information. This is particularly so
with young children where their language and communicative abilities may not
be properly developed, so that they may not understand the question fully and
may use language they do not adequately understand. While it is accepted that
some leading and direct questions are necessary if information is not
forthcoming from a child, the interviewer must weigh the risks and benefits
of using certain suggestive techniques to obtain disclosures of abuse. If the interviewers are biased towards
accepting the allegations of the children, the potential suggestions provided
by the questions are not tested. The interviewers in the
Ellis interviews relied less on open questions and more on focused prompts
than interviewers following recommendations about appropriate or “best
practice” techniques, though they did accept under cross‑examination
that open questions were best. Instead
of relying on open questions that probe children’s recall memory, the
interviewers relied upon focused questions to elicit information, and it is
said, that as a result, there is a greater likelihood of error in the
information obtained than was necessary or desirable. The potential for leading
questions to suggest answers and to contaminate the memory of a child was
well known in 1992, and was covered at both trial and depositions. The interviewers accepted at trial that it
is important not to ask direct questions or leading questions, though they
stated that it might be necessary at times.
However, the interviewers also stated that, while direct and leading
questions should be avoided because they could suggest an idea or concept to
the child that wasn’t present in the child’s mind previously, the use of
these questions in the interviews could not explain the nature of the detail
provided by the children. Dr Zelas initially
appeared to state at trial that direct and leading questions were a normal
part of an evidential interview, and necessary to elicit information from a
child. However, under
cross-examination she stated that leading questions could be suggestive to a
child, but that the answer to a leading question would need to be analysed to
assess whether the lead had been taken up and if any supporting detail had
been provided. Dr Le Page stated that
leading questions are suggestive in that they feed something into the mind of
the child that may not have been there already, but accepted under
cross-examination that direct and leading questions may, at times, be
necessary where information is not otherwise forthcoming. Suggestibility of children was addressed
by Dr Le Page in some detail, both in his pre trial affidavit and in his
trial evidence. He carried out an analysis
of the videotaped interviews and commented in particular on the use of cues
to reconstruct memory, and the lack of spontaneous recollections before
questioning by parents. The depositions and trial
evidence appears to coincide with the view of the current experts, that
direct and leading questions can be suggestive, particularly to a young
child, but that they may be necessary in order to elicit information. It can be said however that rather more is
now known of the effect of suggestive questions on reliability. [ii] Use
of social influence The use of social
influence occurs where the interviewer tells the child the interviewer knows
what the child said to his or her parents.
This implies to the child that they are expected to repeat allegations
made to their parents, regardless of the truth. It is also a strong cue, prompting the
child to recall what was discussed with his or her parents, which may
reinforce the suggestions made by the parents. The depositions and trial evidence of the
interviewers illustrate that they were aware of the potential for their
responses to children’s answers to condition them as to the type of answer
desired. The possibility of the use of
social influence was covered at trial with the interviewers, and they admitted
that they would use social influence, but did not appear to understand that
this could be a source of contamination of the evidence provided subsequently
by the child. Dr Zelas also stated
that if the child has produced little information during the interview, it
may be appropriate, towards the end of the interview, to ask the child very
specific questions about matters they know the child has spoken to another
person about. While Dr Zelas did
accept that this carries the risk of introducing information into the
situation rather than waiting for it to come from the child, it may be
necessary if little information has been provided by the child. This is not entirely
consistent with the evidence of the current witnesses, who state that the use
of social influence is highly suggestive to young children. While the issue of social influence was
explored, the present experts suggest research conducted since 1992 has
improved our knowledge about the effects of using social influence in
evidential interviews. [iii] Bias The interviewer’s prior
knowledge of allegations made by the child could lead to them being biased,
since they have expectations of what the child is “supposed” to say. This knowledge may come from the parents of
the child, or the police, or possibly a social worker connected with the
family. The interviewer may then, even
subconsciously, direct questions towards the allegations made by the child,
providing strong cues to the child.
Bias also leads the interviewer to unquestioningly accept the
allegations made by the child without exploring other possible hypotheses for
the statements made. The need for
interviewer neutrality and preparedness to accept a denial of reported abuse
or a failure to disclose it was covered at depositions and trial, although
whether the standard propounded by the experts was in fact attained in all
respects is doubtful. It was
consistently stated that neutral expressions are important and that it was
essential to respond to allegations similarly to retractions. The shortcomings identified by the present
experts were exposed, although the new evidence contains further critical
assessment of what occurred, and it does seem to place a greater emphasis on
the likelihood of incorrect answers being given to please the interviewers
than was acknowledged by them under cross‑examination. [iv] Use
of props and dolls The use of dolls, in
particular anatomically correct dolls, is a contentious issue. The current experts are divided, though it
appears the consensus is that anatomically correct dolls may be suggestive to
a child and may cause false disclosures since the child is encouraged to play
with the dolls. The interviewers accepted
at depositions that anatomically correct dolls should not be used as the sole
means of inquiry; they are only useful after abuse has been disclosed, in
order to further demonstrate the incident.
However, they did accept that the use of the dolls could be a powerful
cue to the children. They appeared to
understand the problems associated with the dolls, in particular that they
can be leading or directive, and that they can be misinterpreted. At trial, they reiterated this evidence,
but did not appear to accept that the same dangers may be associated with the
use of body outlines. Further, they
stated that they would encourage the child to freely play at the interview,
as this can relieve the situation and give the child something to focus on
while disclosing abuse. This use of
free play was supported by Dr Zelas.
This is contrary to the opinions of the current experts, who contend
that free play can encourage the child to indulge in fantasy. Dr Zelas gave evidence at
trial as to the use of anatomically correct dolls, stating that the general
belief is that anatomically correct dolls are suggestive, but that this is
uninformed, as research evidence indicates that the dolls are not suggestive
to young children. However, she
accepted that they should be used sparingly to avoid any possible criticism
of the interview techniques. While her
recommendation that the dolls should be used sparingly is consistent with the
evidence of the present experts, her opinion that they are not suggestive to
young children is inconsistent with the current weight of opinion. [v] Repetition
of questions Children may feel obliged
to answer adults’ questions no matter how bizarre, due to conditioning, and
may feel that the repetition of a question implies that the initial answer
was unsatisfactory. Thus, repeating the
question may elicit a different answer, an answer that the child feels the
interviewer is seeking. If the child
is then not challenged as to the change in their evidence, they will learn
the required answers the interviewer is seeking. Repetition of questions
was seen by the interviewers at depositions as a possible source of
contamination, for two reasons. First,
it could cause the child to retract the allegation, and then it is very
difficult to elicit the allegation again.
Secondly, it could convey to the child the message that previous
answers are unacceptable and could lead the child to form an expectation of
what is required. This evidence was
reiterated by the interviewers at trial, though they stated that if detail is
provided this tends to indicate that the answers were not a product of the
questioning. Dr Zelas stated that
repeating questions could suggest to the child that the original answer was
wrong. However, repeating questions
may also be beneficial, since it may validate the response to the question, and
may help elicit information from the child, particularly if the question is
asked in a different way. [vi] Repetition
of interviews The repetition of
interviews can signal the child that new allegations are needed, especially
if the child sees the interviews as enjoyable. The child will provide new disclosures to
ensure more interviews are conducted.
Scientific evidence provides support for the conclusion that when
children provide new information in successive interviews under suggestive
conditions, the new reports are false and are the result of previous
suggestive interviews, especially where there is delay between the alleged
event and the interviews. Information
gained at the first interview is more likely to be correct than information
disclosed at subsequent interviews. In the present situation, when first
questioned, all the children denied the abuse. Dr Dalenberg stated that repetition
across interviews tends to be extremely accurate, and that several interviews
are necessary since children tend to disclose over a period of time. However, this contradicts the general
belief amongst the expert interviewers that a maximum of three interviews is
desirable. In the present case, some
children underwent up to six interviews. The evidence given by the
interviewers, particularly Ms Morgan, at depositions was that keeping
interviews to a minimum was good practice, and three interviews would be a
desirable maximum number, since repeating interviews can develop in the child
an expectation that it has to come up with further information. The issue was not further canvassed at
trial. The use of further interviews
appears to have been employed for the purpose of clarification, or in several
instances to obtain evidence in respect of disclosures of further abuse made
since the earlier interview or interviews. [vii] Delay Delay is crucial for
memory, since the longer the delay, the bigger the gaps in the child’s
memory. In response, interviewers tend
to ask more focused questions, which are more likely to yield erroneous
responses. Further, delay increases
the likelihood that children will be misled by suggestive questions and will
come to incorporate erroneously suggested details into their accounts of
alleged events. The delay in the
present case ranges between 5 and 49 months, with an average of 18 months,
approximately a quarter of the children’s lives. Thus the quality of information is limited.
At trial, the experts
agreed that delay negatively affected the quality and quantity of information
retrieved from a child’s memory. It
was stated by Dr Zelas that children recall less with the passage of
time. There is no suggestion this
factor did not feature at trial. [viii] Retractions The current experts
discuss the writings of Roland Summit in 1992 on the Child Sexual Abuse
Accommodation Syndrome, which suggested that retraction of allegations by
sexually abused children is a normal part of the process of having been
sexually abused, and that therefore these retractions are not genuine. Dr Parsonson states in his affidavit that
this conclusion is based on incest where the child will retract a true
allegation in an attempt to keep the family together. Dr Parsonson states that there is recent
research support for the proposition that retraction rates are relatively
low, and that it is not the case that most children will retract their
allegations as part of the “normal” process of disclosing sexual abuse. Where retractions are made in “ritual abuse”
cases, there may have been a number of social and community factors that
contributed to false allegations. The
children and the parents may have been caught up in the climate of fear,
anger, disgust and rumour. Dr Dalenberg, in
contrast, states in her affidavit that retraction should not be taken as
evidence of either truth or falsity; it is not rare among falsely accusing or
accurately accusing children. The opinion of the
interviewers at depositions and at trial was that retractions are an anxious
response, and that they are associated with true disclosures of abuse. They stated that they would not explore
retractions as extensively as allegations, but would instead go back and
explore the disclosure again. The
evidence of the interviewers was that if detail is provided to support the
allegation, this is an indication of a true disclosure, and supports the
hypothesis that the retraction is simply a nervous response. Again there is a measure
of conflict amongst the experts, but what is clear is that the topic of
retractions, and its possible indication of accuracy and the truth of an
allegation, were canvassed in the Courts below. The difference of opinion seems to focus
on the emphasis given by the interviewers, Dr Zelas, and Dr Le Page on the
provision of detail as being consistent with abuse rather than seeing it as a
reason for exploring the retraction. [ix] Fantasy The interviews contained
a considerable number of references to what could be described as bizarre incidents
said to have occurred involving the children.
Some of these were the basis of charges. The more bizarre of those, such as the use
of a needle or of food in the course of a sexual assault resulted in
acquittals. Others, such as urinating
on a complainant resulted in guilty verdicts. The more extreme allegations were not the
subject of charges. The amount of
fantastic content in the interviews is a contentious issue. Dr Dalenberg, claims that fantasy is an
indicator of truthful disclosure, since fantasy is a protection mechanism for
young children who feel vulnerable and scared. The evidence of the interviewers at
depositions was that children cannot create fantasies from thin air, and they
must have experienced an event in order to create a fantasy around it. Dr Zelas agreed with this at trial. She also described the fantasy as “magical
thinking” and indicated that it was a response to their emotions. The appellants’ present experts, however,
state that there is no scientific evidence to support the conclusion that
fantasy and bizarre allegations are associated with true allegations of
abuse. They contend the fantastic
allegations could be a result of the suggestive questioning, since there was
a considerable amount of suggestive questioning, and the fantastic
allegations evolved with repeated suggestive interviewing. While the studies do not show that the
presence of fantastic details marks an allegation as false, where such
fantastic details occur in abundance, as in the present case, this should
begin to raise some concern about the authenticity of the allegations in
general. It also makes the
delineation between fantasy and truth difficult, since what appears to be
plausible could simply be another fantasy.
Further, it should not be assumed that children are incapable of
generating allegations that may convincingly suggest abuse, but which are
derived from their own experience and knowledge and are combined in creative
and novel ways. This evidence was the
basis of Mrs Ablett‑Kerr’s submission that bizarre allegations are no
more likely to be true than understandable allegations. [x] Mass
allegations The current experts raise
the issue of mass allegations involving day cares and crèches. There have been two well publicised cases
in the This dimension of the
present case was addressed by the interviewers at depositions, and mentioned
at trial, though only in passing. The
characteristics of the case that make it stand out were identified by the
interviewers at depositions as being the size of the enquiry, the numbers of
children, and the resulting complexities, and the fact that the referrals
came from the police rather than families.
It is apparent from the transcript that the very matters which are now
raised as relevant to the issue of mass allegations were recognised and
traversed. The origin of the enquiry,
the meeting of the parents, the interchanges amongst parents, the exchange of
information, the fear of parents that a child may have been caught up in a
ritual abuse situation, the resulting parental questioning and its extent
were all matters under the spotlight.
The new material may strengthen the need for care in such situations
but the underlying factors giving rise to that need were explored. [xi]
Demeanour The current experts for
the appellant have indicated that the demeanour of the children in the
interviews is not appropriate for the allegations they are making. The events recounted by the children would
be expected to have serious psychological effects on the children but they do
not appear to display any distress during the interviews. The behaviour associated with trauma is
missing. While hollow or forced
laughter may be made when disclosing abuse, or facial expressions may appear
neutral, frozen or stony, that is not the case in these interviews, where the
children appear relaxed and happy. Dr
Dalenberg states that no one set of symptoms should be expected from an
abused child, and that while a lay person might expect to see distress, in
reality few children cry during testimony.
In one study cited by Dr Dalenberg, a relaxed or neutral
expression was the most common.
Little emotion is shown because one of the fundamental symptoms of
Post Traumatic Stress Disorder is dissociation of emotions. At depositions and trial,
the interviewers stated that they focused on demeanour as one indicator of
the truth of an allegation, and were concerned at the lack of effect
displayed by these complainants. Dr
Zelas stated at trial that some of the children displayed emotion during the
interviews consistent with abuse, though in respect of many children no
comment was made. Dr Zelas stated
that children have various mechanisms available to assist them to deal with
their emotions, such as dissociation, denial, displacement, things that
enable a child to recall an event without necessarily allowing themselves to
experience the emotion that went with that event. Dr Le Page’s evidence contradicted
this. He stated that when a child is
remembering an event, one would expect to see at least some of the emotion
associated with that event resurfacing. His evidence was consistent with the
evidence of the current experts, that some display of emotion would be
expected from children recalling traumatic experiences. [xii] Use
of “don’t know” All the current experts
recommend training the child to use the responses “I don’t know” or “I can’t
remember” when being interviewed. This
is necessary since children, particularly once they are at school, learn that
they must provide an answer when questioned by an adult. Thus, if they are not expressly given permission
to say they don’t know or can’t remember, they may feel obliged to answer the
questions put to them by the interviewer, even if this means engaging in
speculation or fabricating answers. At depositions Ms Sidey
accepted that it is good practice to train children prior to the interview to
say they don’t know or can’t remember, but that she had not explicitly done
this in her interviews as it was something she had recently learned. However, she did say that she had implied
to the children that it is all right to say if they don’t know or can’t
remember. She also said that often the
“don’t know” response is associated with anxiety about disclosure. The other interviewers also accepted that
it is good practice to tell the child it is acceptable to use “don’t know”
answers. The extent to which this was
in fact put into practice is arguable. [xiii]
Behavioural Symptoms Examination and cross‑examination
of the expert witnesses at trial dealt with the issue of behavioural symptoms
consistent with children of these ages who have been sexually abused. The evidence of Dr Zelas was that the
behavioural symptoms exhibited by the children were consistent with children
of that age who had been sexually abused.
Dr Le Page’s evidence was that while the symptoms could be consistent
with sexual abuse, they could also be explained by other events in the
child’s life. However, the evidence of
Dr Le Page would have lost much of its persuasive value after he virtually
contradicted his earlier evidence while being cross‑examined. Dr Parsonson states that
in 1992 Roland Summit produced the idea of the Child Sexual Abuse
Accommodation Syndrome, which suggested characteristics of children who had
been sexually abused. Dr Parsonson
suggests these ideas may have influenced the experts giving evidence in this
case. More recent research suggests
that there is no distinctive behavioural indicator of child sexual
abuse. Many behaviours that were once
considered consistent with reports of child sexual abuse are now shown to be
characteristic of non‑abused children as well. [xiv]
External influences The nature and extent of
the effect of the important factor of parental questioning was covered
extensively at both depositions and trial.
It was also brought out that much of the questioning was contrary to
instructions that had been given in the early stages of the enquiry,
particularly at the Knox Hall meeting.
Taking children to visit sites of alleged abuse activities was also
addressed in the context of those being inappropriate steps which may affect
credibility. This factor was the
subject of detailed evidence from both of the appellant’s present experts,
particularly Dr Parsonson. It was also
referred to in considerable detail in counsel’s submissions. A review is unnecessary, because it is
apparent from a reading of the trial transcript that the substance of the
problem, and also the sources and extent of possible contamination in
individual cases were all identified and addressed. Other matters also covered at trial, were
the influence of counselling when it took place during the period of the
interviewing process, and the degree and effect of contact as amongst parents
and as amongst the children themselves.
The new evidence does not disclose any significant further insight
into this problem factor.
[51] The appellant’s submissions contained a
detailed consideration of the evidence of many of the individual
complainants, compiled for the purpose of demonstrating contamination. We do not find it necessary to undertake
such a review. In contrast with the
1994 appeal, it is not now contended that the verdicts are unreasonable or
cannot be supported having regard to the trial evidence. The basic criticisms made are of a general
nature and are applicable, to a greater or lesser degree, to all counts of
the indictment. The real issue, as
earlier identified, is whether the new evidence establishes that the
knowledge and understanding of evaluating videotaped interviews of children
alleging sexual abuse warrants interference with the verdicts. [52] Undoubtedly there have been advances in
knowledge and understanding which are relevant to undertaking and evaluating
videotaped interviews of children alleging sexual abuse. That is to be expected, and further
research is likely to result in further advances, a more comprehensive
knowledge of these complex factors, and a continuing refinement of what are
from time to time current techniques as well as the development of others. This kind of continuing development or
advance is common to many areas of expertise which are concerned with the
criminal process, but the present area is unlike those of a purely scientific
nature where important facts can be proved, or their probability
mathematically calculated. [53] In the course of her argument Mrs
Ablett-Kerr placed great emphasis upon a chronological narrative she had
constructed drawing indiscriminately on admissible and inadmissible
material. This was the factual
background statement provided to the expert deponents. It strikingly highlighted the opportunities
for contamination of the evidence of the complainants. Necessarily, however, in each case the
circumstances said to give rise to the risks of unreliability of evidence must
be evaluated in light of what is known of the ways in which those risks can
be manifested as part of the broader assessment of the credibility of the
evidence. Because this narrative
statement did not take account of the extent to which the risks of actual
contamination were investigated at depositions and at trial and because the
factual matters it collates all were known at the time of the trial, it did
not warrant the emphasis it was given. [54] Counsel also stressed the "mass
allegation" aspect of the case and contended that it is only since the
trial that special dangers of injustice inherent in such cases have been
recognised. As already said, multiple
allegation situations do not of themselves mean that the allegations have any
particular unreliability. They call
for care because the number of complainants increases the opportunities for
contamination in the recognised ways.
It is to be kept in mind that the essential issue is the reliability
and credibility of the evidence of the complainants. The risks of contamination are matters to
be taken into account. That one or
more of those risks is shown to have been present to some extent does not
mean a complainant's evidence necessarily is to be rejected as untrue. So long as the evidence is assessed with
awareness of the relevant risks, it is for the jury to decide whether it can
be relied upon. This Court has
regarded that task as within the competence of juries, but subject to the
discretion of the trial Judge to exclude wholly unreliable evidence. To do otherwise would seem inconsistent
with the legislative intent underlying s23H Evidence Act 1908. The expert evidence we have considered in
this appeal has not persuaded us that it is necessary to adopt any different
approach in this respect from that referred to in R v R CA130/98, judgment 24 September 1998. The trial in this case proceeded in that
way. [55] The starting point is that the conduct
of the trial is not under challenge;
it is not contended that available evidence was not called, or that
known avenues relating to credibility or accuracy of the children’s evidence
were not explored. The second point
is that all the factors of contamination now relied upon were addressed in
the course of the proceeding. The
third point is that it is not the function of the Court as distinct from the
more wide-ranging inquiry possible with a Commission of Inquiry, to determine
whether the admissible evidence proffered by the appellant’s present experts
is to be accepted, nor even to make a final evaluation of its weight and
effect on the trial evidence. It is
important to keep in mind that the new evidence, necessarily by reason of the
appeal procedures, is as yet untested.
From the material supplied to the Court it is clear , as would be expected,
that there are amongst the experts differing views on many of the aspects of
evidential interviews of children alleging sexual abuse, and the relative
significance of those aspects. Our
enquiry is to determine whether the new evidence is sufficient to take the
case over the threshold for appellate intervention. [56] Resolution of this ground of appeal is
not an easy task. There are aspects
which have required careful consideration.
Our overall assessment is that the various matters of concern of
substance now identified and emphasised were all identified in 1992 and
covered at trial. The real thrust of
the appellant’s case we think is contained in the general submission that
contamination risks were underestimated and not adequately investigated. This highlights a difficulty in the
appeal. At issue is what is
essentially a subjective exercise of evaluating the weight to be given to a
variety of matters, none of which are capable of measurement. The analysis of the evidence relating to
the factors of significance earlier undertaken, when considered in
conjunction with the affidavit evidence of the new experts has led us to the
conclusion that this Court should not interfere. The important factors going to
contamination were dealt with, and there is in our view an absence of
significant “newness” in the additional evidence to show there were serious
flaws or problems which were unknown or unappreciated. In hindsight it may well be said that
emphasis on certain aspects could have been greater or differently placed,
and that current knowledge if applied then would have led to a more
acceptable process. The result if
that had been done is speculation, but that apart, such a conclusion cannot
justify allowing the appeal. The
Court must approach its task on a principled basis, in accordance with its
statutory obligations. When that is
done, we are unable to say that under this head of appeal there has been a
miscarriage of justice. [57] In summary, as an appellate court, we
are satisfied that the appellant has not demonstrated anything sufficiently
new in the contamination and allied fields to justify the verdicts being set
aside. The trial must be taken to have
been appropriately and competently conducted by the defence according to the
then knowledge. We repeat, we are not
a Commission of Inquiry and in terms of s406(a) we cannot find there has been
a miscarriage of justice. Second ground of appeal -
Retraction by complainant A [58] During the course of the hearing of the
1994 appeal, the Court received advice that this complainant had disclosed
she had lied in her videotaped interviews.
As a consequence the complainant was interviewed by an independent
barrister who reported to the Court.
In its judgment of 8 September 1994, the Court discussed relevant
matters in some detail, and concluded that it shared the doubts expressed by
counsel in his report as to the truth or otherwise of her retraction. The convictions were however held to be
unsafe, and therefore set aside. The
Crown did not seek an order for a new trial.
This ground of appeal is based on a contention that the significance
of a retraction by a child complainant was not properly understood. The failure to understand appears to be
directed to the Court, and is said to have arisen because in 1994 it did not
have before it adequate psychological or psychiatric evidence on the topic of
retraction. [59] The evidence now put forward is from Dr
Parsonson and to a lesser extent Dr Lamb. In essence, Dr Parsonson draws on a number
of factors as supporting a conclusion which he expressed in the following
way: In the light of the
research on interviewing and retraction, it is possible to argue that a
number of the conditions for a false report and a genuine retraction were
present in A’s case. The available
information allows no more definitive statement to be made. [60] It is difficult to see how the evidence,
including the research material which is referred to, adds anything of
significance to what was before the Court in 1994. The identification of factors indicative
of the truth of the retraction advances matters little further - the
uncertainty remains, and the benefit of that uncertainty must, as it was in
the 1994 judgment, be given to the appellant. [61] The submission that quashing these
convictions affects the safeness of convictions in respect of the other
complainants, rejected in 1994, is again pursued. The first answer to the present submission
is that there is nothing in the new evidence now relied upon which impinges
in any significant way on the issue, and accordingly as a matter of principle
it does not warrant revisiting by this Court. [62] Even if the submission is considered
afresh, the conclusion must be the same.
No miscarriage of justice has resulted. It was contended that A had been put
forward at trial as the first complainant to give evidence, and portrayed as
the eldest and the least likely to have been improperly influenced, or her
evidence least likely to have been contaminated, to use the description given
to this aspect of credibility. This,
it was said, resulted in a risk that her allegations gave credence to the
other complainants. The submission
does not stand analysis. The charges
involving complainant A comprised two of indecent assault by touching (one at
the crèche and one at the appellant’s home), and one of inducing an indecent
act at the crèche. The acts alleged
had no particular characteristics common to any other charges. Importantly, the trial Judge gave careful
and correct directions on the use of similar fact evidence, and made it clear
that complainant A’s evidence was not within any of the categories of charges
where similar fact evidence could be taken into account. The jury was effectively instructed that
her evidence had no relevance to other counts. There was also a proper direction on the
need for each count to be considered separately, and only on the evidence
which related to that charge. The
Judge was careful to adopt that same approach when directing on the
individual counts, and A’s evidence was never put forward as impacting on the
other allegations. [63] For this ground to succeed, the
appellant must be able to point to an unacceptable risk that the jury wrongly
used complainant A’s evidence when considering the counts relating to the
other complainants. It was not
suggested that there should have been severance, and it must follow that no
miscarriage resulted solely from the fact that the trials were heard together. Had there be no subsequent retraction, it
would have been impossible to argue successfully that the evidence may have
been wrongly taken into account. We
are quite unable to see how the later retraction places the appellant in any
better position. We cannot accept Mr
King’s argument that without A’s evidence the jury might not have reached
guilty verdicts on the other counts.
To do so is to say that there is unacceptable risk the jury was not
true to its task as clearly enunciated by the Judge, and for that there is no
proper basis. It is not appropriate
to speculate what the jury may have done had A’s retraction been known at the
time of deliberation, or had A’s evidence not been given at trial. The former would in any event be a
meaningless exercise, and impossible to carry out because it involves taking
into account something which had not happened. [64] It was further submitted that the
retraction lent weight to the general defence claim of contamination of
complainants’ evidence. We see no
substance in this submission. First,
the evidence of contamination in respect of A herself was of a comparatively
minor nature, and her reasons for lying, assuming she did lie, are not
satisfactorily established. Secondly,
the issue of contamination in respect of any one complainant is necessarily
to be judged on the evidence which related to that complainant. It would be wrong to conclude that because
A was subject to operative contaminating factors, that assists in determining
B was also. The converse also applies. [65] In short, A’s retraction has no material
effect on the other verdicts. Third ground of appeal - Ruling
No. 14 [66] The submission in support of this ground
is that the jury was deprived of evidence relevant to its proper assessment
of the reliability and credibility of the complainants. A similar challenge to the same ruling was
made and rejected in the 1994 appeal. [67] The trial commenced on 26 April 1993 and
the ruling is dated 26 May. By that
time all complainants had given their evidence and the Crown case was nearly
complete. It closed at about 11.00am
on 27 May. The ruling records that it
is in response to an application by defence counsel to adduce evidence to
contradict answers given by a complainant during cross‑examination on
matters not directly related to any of the charges. The child in question was (G), and the
evidence sought to be adduced was from a former crèche worker Jan Buckingham,
who had commenced her testimony on 25 May.
The complainant had said that Ms Buckingham was present when bad
things had happened to him away from the crèche. The Judge discussed the law relating to
collateral issues and concluded: Very lengthy and wide
ranging evidence was given during the preliminary hearing of the case. It involved other alleged sexual acts by
the Accused and others upon children who are complainants in this trial and
some who are not. Other evidence in
the same depositions could legitimately be claimed to reflect seriously upon
the credit or reliability of possible defence witnesses. The prosecution would not be permitted to
call that evidence upon a claim that it would be evidence which would reflect
on the issue of a witness’s credit.
Also if evidence were to be led from a witness which was related only
to the credit of a complainant witness, then it would be proper to allow
questions to be asked of that witness which would go to his or her credit
since that credit would then also be an issue in the trial. In my view it is truly
necessary in the interests of justice to firmly confine this trial within
proper limits and to avoid a multiplicity of side issues. For these reasons I rule that counsel for
the accused may not lead evidence to contradict the complainant’s answers in
cross-examination on collateral issues. The reference to collateral
issues appears to be to issues other than those arising directly in respect
of charges. [68] Mr King submitted that the ruling
imposed broad restrictions on the defence ability to challenge the credibility
of the complainants, and that current expert opinion shows the need for
special care in mass allegation cases.
He also contended that it was important for the jury to have known
that the children were capable of outrageous and fanciful allegations - the
“full picture” approach. This latter
point is also to be viewed in the light of expert evidence to the effect that
it may not be appropriate to give greater credence to comprehensible
allegations by children than to allegations of bizarre misconduct. [69] It is apparent that defence counsel were
alert to the relevance of bizarre allegations to the question of general
credibility. That is abundantly clear
from the cross‑examination undertaken at depositions, and also from the
request made at trial for the Crown to produce the videotapes of interviews
not forming the basis of specific charges.
It is therefore necessary to look carefully at the impact of the
ruling in the course of the trial. [70] It was undoubtedly open to the defence
to cross-examine all complainants on all allegations which they had disclosed
whether or not they were the subject of specific charges. The contention that the defence was
constrained in this regard is not supported by the ruling. It had no application to cross-examination
of the complainants, and there is no evidence from trial counsel, who for the
purposes of this appeal has deposed to the significance of other matters such
as non disclosure of documents and possible bias of jurors, that he was
inhibited by the ruling in this respect.
Also Ruling No. 5 held that cross‑examination of the
interviewers was not restricted, provided it was based on their evidence,
expertise and observations, other than on matters of opinion concerning the
children or hearsay. [71] Mr King endeavoured to support this
aspect of the submissions by reference to other rulings of the Judge, none of
which have been under challenge either in the 1994 appeal or are identified
as coming within grounds formulated in the present referral. The rulings referred to in the course of
argument are those numbered 6, 9 and 10. [72] In Ruling No. 6 the Judge held that the
Crown was not obliged as part of its case to produce the video taped
interviews of complainants which did not relate to specific charges. The ruling makes it clear that those had
to be made available to the defence which was then at liberty to use the
material by way of cross examination as it thought fit. The defence was also permitted to have the
interview in question played, but in its entirety. The Judge did observe “I accept that there
is weight in the submission that the jury should be aware of the total
picture but only in so far as it is relevant to the charges they are
considering. Where the whole picture
is shown to the jury it should have an appropriate frame which restricts the
trial to the matters raised in the charges.”
The Judge went on to indicate that the ruling was only of a general
nature and left specific questions arising to be determined. The record shows that additional
videotapes from interviews of 12 complainants were played at the request of
the defence, including in several cases more than one interview of the
particular complainant. Our attention
was not drawn to any instance where a defence request was rejected, although
there appears to have been one instance where the Judge queried relevance. [73] Ruling No. 9 appears to have little
relevance to the issue now under consideration. In that the Judge held that the reasons
for cancellation of a further interview with one complainant were not
relevant. [74] In Ruling No. 10 the Judge refused the
Crown’s application to excise parts of the video taped interview of one
complainant. The ruling itself
contains observations as to the investigation of collateral matters, that
topic being dealt with later and in more detail in Ruling No. 14. [75] We do not see these further rulings as
being of any material assistance in the present argument. [76] The real thrust of the submission in
respect of this ground of appeal goes to the alleged inability on the part of
the defence to call evidence to rebut particular allegations of misconduct
which were not the subject of charges.
A number of examples were given.
Save in respect of the complainant who was directly concerned in
Ruling No. 14 there were no questions in cross examination directed to the
other complainants in respect of any of the matters now raised. That alone would have been fatal to any
application to call evidence to rebut those allegations. The fact that the allegations were made by
the children was known to defence counsel at trial, and there was a
deliberate election not to cross examine on them. The collateral issue question therefore
did not arise and could not have arisen, and the trial Judge’s rulings have
had no relevant consequence in this respect. [77] As regards Ruling No. 14 itself, we are
unable to see how the particular issue which was not allowed to be
investigated further could possibly have resulted in any miscarriage. A formal denial by Ms Buckingham or other
defence witnesses that the misconduct referred to by the complainant had
occurred would have added little if anything to an assessment of the
complainant’s overall credibility, even if it had been appropriate to allow
further evidential explanation of that matter. The jury was not deprived of knowledge of
bizarre allegations having been made by the children as a result of the
ruling. [78] It could be said that there was a degree
of “sanitising” by the Crown, in that of the 42 charges involving 20
complainants which were the subject of committal, only 28 charges involving
13 children were included in the indictment;
also some allegations of serious offending by those were not the
subject of any charge. There was however
no suppression of possibly relevant evidence in this respect - all was known
and available to the defence at the time of trial. Whether or not a more liberal application
of the collateral issue rule would have been appropriate in the light of
contemporary knowledge, there was no undue restriction placed on the defence
as it was conducted at trial. That
apart, the extent to which investigation into other issues could properly
have been undertaken clearly raises problems. From a practical viewpoint, it would
probably be sufficient simply for the bizarre allegations to be made known
(as several in fact were). It is
their very nature, and lack of apparent reality, which demonstrates the point
sought to be made. [79] The new evidence now relied upon does
not persuade us that the ruling now under discussion, or the Judge’s
underlying approach to it, was unduly restrictive thus resulting in a
miscarriage of justice. Fourth ground of appeal - Juror
bias [80] Two separate matters are pursued under
this head. Juror A [81] Juror A had a personal relationship with
a person (Z) who at the time of the trial worked for the same organisation
which employed the mother of one of the complainants. The following facts are agreed: (i) That Juror A advised Mrs Hay, the
juries assistant on the morning of the second day of the trial, prior to the
commencement of the days hearing that a degree of relationship existed
between her and the mother of a complainant child. (ii) Mrs Hay advised the Judge at about 9.30
am on 27 April 1993 that a juror said her flatmate worked with the mother of
a child complainant. (iii) The Judge did not notify counsel of this
information and no enquiry was held and no other steps were taken in relation
to the matter by the Judge. [82] The Court has received affidavits from
the juror, Z, and the mother. Z was
employed as a psychiatric nurse, and the mother as a social worker. They were part of a multi-disciplinary
team in an office which comprised eleven staff members. They were not close friends, and apart
from odd occasions connected with their employment they had no social
contact. The office where they worked
was an open plan office and their respective work stations were at different
ends of the office. The evidence
shows that the only contact juror A had with the mother would have been at a
Christmas party in December 1992 or possibly early January 1993, when the
juror was introduced by Z to the mother.
At about the time the trial started the mother informed Z that she was
to give evidence. Being aware that
juror A was to serve on the jury, she informed the juror of that fact. That appears to have led to the disclosure
to the Court Officer. There is
nothing to indicate there was any discussion, or attempt to discuss any matter
relating to the trial as between Z and the mother. Neither was there any further discussion
between Z and the juror on trial matters. [83] In her affidavit juror A stated that she
had not recognised the mother when she gave evidence which she thought was on
the first day of the trial and had therefore already formed views on her
credibility before being alerted by Z that Z and the mother worked together. She did not raise the matter with other
jurors, and was certain it played no part in her deliberations. [84] The record shows that the mother’s child
complainant was the first witness called by the Crown, it would appear on the
afternoon of 26 April. The child was
not cross-examined until next morning, and her mother was the next
witness. Her evidence was completed
the same day. Mr King placed some
weight on the fact that the juror reported to the Court Officer before the
mother gave evidence, which indicated that the juror was in error in
attributing her recognition of the mother as occurring after the evidence had
been given. Even giving that full
weight, we cannot see there is anything disclosed by the evidence which would
warrant disqualification or give rise to any suspicion that juror A was
unable to or did not fulfil her duties faithfully. Had defence counsel been made aware at the
time of the situation as it is now known to be, any application to discharge
the juror, or the jury as a whole, was unlikely to succeed. The
real issue now is whether the known facts are such that a miscarriage has
resulted, and the answer to that enquiry must be in the negative. The tenuous nature of the relationship
gives no cause for concern. Juror B [85] The allegation is that juror B was
overheard by Mrs Y to agree with an observation by another person that the
appellant was guilty. The
conversation was said to have occurred on 20 May 1993; prior to completion of the Crown
evidence. The occasion is said to
have been a “housie” evening, when Mrs Y was waiting to be taken home. Mrs Y made an affidavit on 5 June 1993 to
the above effect, which was obviously known by and available to the defence. [86] Juror B, and the person to whom she was
alleged to have been speaking, have both sworn affidavits strongly denying
any such conversation took place.
Neither have any specific recollection of the evening in question, or
whether they did attend the function on that evening. The evidence is quite insufficient to
establish any reasonable suggestion of bias or pre judgment on the part of
juror B. Mrs Y was not a party to the
alleged conversation, and it is quite possible if there was any such
incident, the content of it has been misunderstood or misinterpreted. [87] That apart, what is fatal to this as a
ground of appeal is that it was known to the defence, apparently prior to the
jury verdict, and was not thought of sufficient significance or importance to
be raised either then or at the 1994 appeal hearing, in which very experienced
senior counsel appeared. No
explanation for the failure has been proffered. The material now before the Court does not
raise any concern as to the safety of the verdicts in this respect. Fifth ground of appeal - Non
disclosure of material [88] There are two categories of material
relied upon to support the submission that non disclosure resulted in the
appellant not receiving a fair trial.
There was some argument addressed on the nature and extent of the
general obligation of the Crown to disclose material to the defence, with
particular reference to some of that now in question. We find it unnecessary to embark on a
consideration of that subject. Bad
faith on the part of the prosecution in withholding material was not pursued,
and the issue in any event is largely academic. The material is now known and has been
made available to the appellant, and accordingly the issue is whether its non
availability at trial has led to a miscarriage. That is to be judged by an assessment of
its relevance and possible assistance to the defence case, whether or not any
duty to disclose has been fully observed.
It is strictly a “merits” enquiry, namely whether the material is of
such significance that the trial was unfair, or the verdicts are to be viewed
as unsafe. [89] The first category comprises
photographs, some retrieved from Council archives and some of the crèche
taken by the police in the course of investigations. The significance of the use to which these
photographs could have been put by the defence at trial has in our view been
exaggerated. [90] One of the photographs depicted an
anatomically correct doll. It was
submitted that children’s access to such dolls was one relevant source of
contamination, and also of knowledge of human anatomy not ordinarily expected
of children of that age, thus assisting the claim that the children were able
to make detailed but fake allegations.
The existence of such dolls was however within the knowledge of the
appellant, and if viewed as significant could readily have been addressed at
trial. There must have been a
deliberate decision not to open up this matter, a decision which is
understandable in the circumstances.
In short, the photograph did not disclose anything previously unknown
to the appellant. [91] The photographs of the crèche are said
to depict a “vibrant and happy environment”, an atmosphere which it was not
possible readily to describe adequately at trial. The photographs also showed some of the
crèche activities, including people and children in forms of fancy
dress. Also shown were pieces of
equipment used by the child for playing games, which were said to be similar
in some instances to items described by one or more complainants when making
some of their allegations of abuse, in particular those of the more bizarre
kind. The appellant’s written
submissions detail some allegations of abuse which it was contended could
have been explored in greater detail had these photographs been available,
perhaps assisting to demonstrate the unlikelihood that the described abuse
occurred. This is little more than
pure speculation, and importantly the photographs add nothing to the sum
total of the information known to the appellant and available to his advisers
at the time of the trial. As Mr King
acknowledged, nothing new was disclosed.
There is no sound basis to conclude any unfairness has resulted from
the absence of the photographs which should give concern as to the safety of
the verdicts. Mr King placed
particular reliance on a photograph which showed the position of the toilet
in relation to the general crèche interior, with the toilet door open. There was evidence that the door was
commonly in an open position, and a submission made at trial was that it was
highly unlikely offending of the kind alleged could have taken place without
being observed by other people. Again
this adds nothing to what was made clear at trial. In addition the jury viewed the crèche
(after its closure) and would have been fully aware of the scene perspective. As Mr King acknowledged, no new fact was
disclosed. There is no sound basis to
conclude any unfairness has resulted from the absence of these photographs
which should give concern as to the safety of the verdicts. [92] Another photograph taken by the police
in early September 1992 showed an article on ritual child sexual abuse placed
in a folder on a desk in the crèche.
This it was said would have been of significant benefit to the defence
in cross‑examination as to possible sources of contamination,
particularly as it appears to have come from the mother of one of the
children interviewed during the enquiry.
The article referred to a number of bizarre practices, some of which
are similar to those alleged by the children. The value of this to the defence must be
doubtful. The desk was that used by
one of the crèche workers, a defence witness who had originally been charged
with offences against the children, but then discharged subsequent to
depositions. Emphasis on the presence
of such literature could well have been something of a two edged sword. Taken on its own, this could not possibly
warrant interfering with the verdicts.
At best it is a factor which could possibly weigh in making a final
overall assessment on the primary contamination issue. [93] The second category of material comes
under the general heading of documents.
A total of 12 were identified.
Two of those, it was submitted, demonstrated direct parental contamination
of children. They both record matters
relevant to the questioning of children by parents to an inappropriate degree
during the course of the ongoing police investigation. One is a report form made out by the
officer in charge of the investigation, and the other a record of a meeting
involving police officers, interviewers, and counsel from the Crown
Solicitor’s office. Neither document
advances matters known to the defence at trial in any material way. The cross‑examination of the parents
referred to the nature and extent of discussions with the respective children
and the issue of parental contamination was at the forefront of the defence
case. The second aspect, referred to
as hysteria on the part of parents, again adds little in substance to what
was previously known and adverted to at trial. To contend now that these documents would
have enabled in a material way further elaboration of, or assisted any
challenge to the evidence of the children or the parents, is unduly
optimistic, and loses sight of the reality of the trial, and the overall information
available to the defence. [94] A further nine documents were presented
as demonstrating risks of contamination through contact between the officer
in charge and the parents and children.
Having carefully reconsidered those documents, we are unable to see
how they could have been of material assistance to the defence. Mr France correctly submitted that they
were primarily used to support an attack on the integrity and ability of the
officer in charge, an issue raised by the appellant’s advisers but not the
subject of any ground of the reference.
In so far as they do bear upon the question of contamination, they do
not meet the threshold of evidencing a concern that if properly used at trial
they may have had a material effect on the jury’s deliberations. Result For the reasons stated,
we are not persuaded that any individual ground of appeal has been made
out. Neither are we persuaded that
their cumulative effect constitutes a miscarriage of justice. The appeal is therefore dismissed. |
