|
Opinion
Part
2
Background
2.1 Events Leading Up to the Trial
A detailed history of these events is contained in the report furnished by
your Ministry to the Minister on the First Petition ("the Ministry's
Report"). It is sufficient for the purposes of this opinion to note from
that history the following –
·
The Petitioner was employed as a
child-care worker at the Christchurch Civic Creche, which provided daycare
for 70-80 pre-school children, from 1986 to February 1992.
·
A complaint of suspected sexual
abuse was made against him by a mother in November 1991 as a result of which
the Petitioner was suspended from duties at the creche and a complaint was
made to the Police
·
On 2 December 1991 a public
meeting of parents was called at the instigation of the creche management
committee, its stated purposes being to advise that concerns had been raised
but no specific allegations made, and to ask parents to watch for and report
changes in the behaviour of their children.
·
On the same day some of the
parents formed an informal "support group'' which from that date
collected and exchanged information about allegations as these were
progressively made by the children and about the developing investigation.
·
Between December 1991 and October
1992, 116 pupils or former pupils of the creche were interviewed by
specialist interviewers from the Christchurch Special Services Unit
("SSU") of the Department of Social Welfare, under the clinical
supervision of Dr Karen Zelas. Most of the children were interviewed a number
of times.
·
The Petitioner was arrested on a
single charge of sexual abuse on 30 March 1992.
2.2 Charges, Conviction and Sentence
By the time of the depositions hearing in November 1992 the Petitioner faced
42 charges involving 20 children. He was committed for trial on all 42
charges. However when the trial commenced in April 1963 the Crown elected to
prefer only 28 charges relating to 13 children, all of whom had at the times
of the alleged offences been either three or four years of age. Four women
who, like the Petitioner, were at the relevant times employees at the creche,
and had been committed for trial as parties to some of those offences, were
discharged before trial by orders under s347 Crimes Act.
The Petitioner's trial lasted six weeks. During its course further orders
under s347 discharged him on three counts. The jury acquitted him on a
further nine and found him guilty on 16 charges, relating to seven children.
On 22 June 1993 he was sentenced to 10 years imprisonment. In his remarks on
sentencing the Judge said:
"The jury were in a unique position in this
case. Unlike almost all of those who have publicly feasted off this case by
expressing their opinions, the jury actually saw and heard each of the
children. They also heard your own evidence and that of the other former
Christchurch Civic Creche workers. They disbelieved you They believed the
children and I agree with that assessment."
2.3 Appeal
The Petitioner appealed from his convictions and sentence During the hearing,
which commenced on 14 February 1994, the Court of Appeal was informed that one
of the complainants, (referred to as "Child A") in respect of whom
three convictions had been entered, wished to retract her evidence. It asked
an independent barrister to interview Child A and submit a report. He
reported that while she continued to maintain that she had lied to the Court
and wished to retract her evidence, he did not find her explanation that she
had made up her evidence convincing, and was left in doubt about the true
significance of her retraction
The Court (at p33) said that while it was not satisfied that Child A had lied
during her videotape interviews, "with such doubts it would be unsafe to
let the convictions stand" It accordingly quashed the three convictions
relating to A but otherwise dismissed the appeals against conviction. It was
then informed that the appellant did not wish to argue "that the conduct
of which he stands convicted (although he still denies it) does not warrant
the sentence of 10 years imposed, and this applies even though the
convictions involving Child A have now been set aside".
The Court endorsed the comments made by the Trial Judge on sentencing, and
said that it too had "no misgivings about the outcome of the
trial".
2.4 First Petition
On 2 December 1997 the Petitioner filed a petition ("the First
Petition") seeking a free pardon in respect of his 13 remaining
convictions, or in alternative that they be "returned to the Court of
Appeal for its further consideration", contending that they represented
a gross miscarriage of justice.
His claims were examined by officers of the Ministry of Justice. Their report
advised against granting a pardon on the dual bases that the Petitioner
should first exhaust existing legal remedies before being considered for a
pardon, and a perceived insufficiency of grounds for a pardon on the material
then available to the Ministry. It did, however, recommend the reference back
of the remaining convictions to the Court of Appeal for its further
consideration. This was done by Order in Council dated 4 May 1998 ("the Reference").
Clause 10 advised that the reasons for the Reference were that there was
evidence available which could lead the Court to the view that a miscarriage
of justice could have occurred namely:
(a) Evidence contained in a series of
reports by a psychologist, Dr Barry Parsonson, concerning the techniques used
to obtain the evidence of the child complainants;
(b) Evidence of an association between a
Crown witness, identified as Child A's mother, and the partner of one of the
jurors; and
(c) Evidence that photographs which the
Petitioner considered would have been important to his defence were not
disclosed to his Counsel at trial.
2.5 Directions Hearings in Court of Appeal
On 4 June 1998 the Court of Appeal heard argument from counsel for the
Petitioner that the Reference under s406(a) Crimes Act, 1961, gave the
Petitioner the same rights as a general appeal, and that he was entitled to
full discovery from the Crown, to engage experts and, on the basis of that
extended consideration of the case, to file points on appeal, and have the
material relevant to those points from the trial and appeal record and any
further relevant evidence put before the Court at the hearing of the
Reference.
In a judgment delivered on 9 June 1998 the Court rejected that contention,
saying that:
"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."
Having had
advice from the Petitioner's counsel that if she were limited in that fashion
she would seek a wider reference, the Court indicated that that must be a
matter for her decision, but added :
"We should emphasise, however, that any
wider reference would obviously respect the role of an appellate court and
would not include matters more appropriate for consideration by a commission of
inquiry."
At a
further hearing on 17/18 December 1998 the Court expressed concern at the
time being taken readying the Reference for hearing. It settled a timetable
which required the Petitioner to file and serve his evidence by 22 February,
the Crown to file its evidence by 2 April, and fixed the hearing date of 31
May 1999, allocating one week for the hearing.
2.6 Second Petition
On 16 November 1998 the Petitioner filed another petition ("the Second
Petition") seeking a "Free Pardon and a Royal Commission of Inquiry
into his case" or in the alternative "a Royal Commission of Inquiry
into his case and for his whole case to be referred back to the Court of
Appeal" Paragraph 319 of the Petition asked that, in the event of a
reference, it include "the strongest of recommendations that the Court
assumes an investigative role itself
Although the Petitioner accordingly retained reference as a second choice,
the main thrust of the Second Petition was to re-state in more forceful
manner the contention that the Court of Appeal is not an appropriate body to
determine his claims of miscarriage of justice, a proposition which had been
urged in a more restrained way in the original Petition. It argued that the
the Court's comments reported at part 2.5 showed that it had already limited
the scope of the Reference and had itself recognised that it was - "not
the appropriate body to carry out an investigation or really to inquire into
the merits of a conviction where an inquiry would be necessary to obtain Justice".
At the same time, the Second Petition incorporated additional material the
effect of which was to strengthen the original or introduce new claims of
miscarriage of justice
2.7 Material Provided and Considered for the
Purposes of this Opinion
With my letter of instructions I received copies of the Petitions and
accompanying documents, a commentary by the Crown Solicitor, Christchurch, on
the First Petition, the Ministry's Report, the Reference, and the Court of
Appeal's 1994 decision and the Minutes of its 1998 Directions Conferences.
Subsequently I asked for and received further material including:
·
The bulk of the trial record, and
the Judge's Summing Up and Notes on Sentencing;
·
Papers bearing on methods of
obtaining evidence from young children,
including the 1992 UK Memorandum of Good Practice and the 1996 NZ
protocol; and
·
Papers which have considered the
adequacy of conventional appellate court procedures for the
detection and correction of miscarriages of
justice, including the Interim and
Second Reports by Sir John May which led to the establishment of the UK
Criminal Cases Review Commission, its first report, and the report of the Royal Commission into
the New South Wales Police Service (the "Wood Commission").
Apart from
the Court record, much of that information was not in a form or of a nature
which would be admitted in a court of law, and it is difficult to assess how
much of it could be converted into admissible evidence.
2.8 Inquiries from your officers confirmed
that I was being asked to provide an opinion based on the material
immediately available, not myself to conduct any fresh investigation. That
course was no doubt unavoidable if any necessary amendments to the Reference
were to be settled soon enough to avoid the necessity of vacating the
existing fixture in the Court of Appeal and the considerable further delays
in dealing with the Petitions which that action would entail. At the same
time the limitations which follow from that type of review need to be
acknowledged and kept in mind.
|
