|
Opinion
Part 4
Grounds of the Petitions, and how far they call for further
consideration
The numerous
complaints in the First Petition were grouped under five broad headings -
The Investigation -
"The
prosecution was commenced not as a consequence of an exercise of objective
investigation but rather as the consequence of a subjective validation process
initiated by individuals predisposed to concluding that sexual abuse had
occurred regardless of any supporting evidence of substance "
The Children's Evidence -
"The
methods of obtaining evidence from the child complainants was(sic) flawed (and)
had unacceptably high risks of contamination."
The Retraction –
"The
recantation of [A] was of greater significance than the Court of Appeal had
appreciated."
The Trial Process -
"The
trial process itself was flawed and resulted in me receiving an unfair Trial
"
The Jury -
"The
Jury which convicted me failed in its obligation to try the case on the
evidence alone and failed to disclose that they might not be impartial and as
a result I did not receive a fair Trial."
After the
Petition had been filed the Petitioner sought to add a sixth ground, failure
by the Crown to discover photographs which the defence had asked for and
believed would have aided its case. This was considered under the title "Non-discovery".
The Reference, which followed the recommendations in the Ministry's Report,
referred for consideration by the Court of Appeal numbers of the complaints
made under the headings The Children's
Evidence, The Retraction, The Jury, and Non-discovery It did not refer any of the complaints about The Investigation or The Trial Process.
The question whether the existing Reference should be broadened must be
decided on the basis of all relevant information now available, not simply
the additional material provided in or with the Second Petition. This section
of the opinion looks at each of the six heads of complaint on that basis.
4.1 The Investigation
This group
of submissions asserted that the police and the SSU interviewers assumed from
the outset that the Petitioner had committed numerous abuses on children
attending the creche, and that this resulted in a one-sided and flawed
investigation. It also included attacks on the character, fitness and
competence of the detective who had day to day control of the police
investigation. The Ministry's Report concluded that these complaints did not
warrant reference.
The Second Petition adds further information about the detective, showing
that he had had difficulty fitting the demands of the creche inquiries in
with his other duties, and that his senior officers had concerns about this
It also shows they concluded that he could cope.
The additional information now
supplied does not in my opinion warrant any reference of these complaints
save as to the manner in which the interviewers approached and conducted
their interviews: and that issue is more appropriately considered under the
next heading.
4.2 The Children’s Evidence
The
Petitioner's essential complaints under this head are -
·
That
the interviewing techniques were seriously flawed;
·
That
the risk of contamination of the children's evidence was underestimated and
not properly investigated; and
·
That
in combination those defects made it unsafe to place reliance on the
children's evidence.
Their
central theme is that, whether or not the procedures followed conformed with
standards current in New Zealand in 1991/92, later research has resulted in a
better understanding of the problems, and that those procedures can now be
seen to have been quite inappropriate.
The principal material tendered in support
of these complaints is a series of reports by Dr Parsonson, a New Zealand
psychologist with a special interest in this subject who was engaged by the
Petitioner's advisers to review the case. They make extensive reference to
research work carried out since the Christchurch creche inquiry They discuss
the formulation of guidelines for United Kingdom interviewers in 1992, and
for New Zealand in 1996. Dr Parsonson's conclusion is that –
"It
would (now) be impossible for an expert to tease out fact from fiction. . . .
. .The writer himself was not able to do so, beyond concluding that, given
the conditions prevailing, the level of parental contamination, and the
extremely suggestive interviewing procedures, the probability of the
proportion of fact outweighing the proportion of fiction must be very, very
small indeed."
Also
submitted with the First Petition was the record of a discussion between a
television reporter and Professor Ceci, an American psychologist whose work
had been cited by Parsonson. In that discussion Professor Ceci expressed the
view that while the Christchurch interviews were "traditional to the
late eighties early nineties, . . . . . they were not conducted in accordance
with currently understood scientific principles". He also stated that
"mass allegation creche cases" are a recognised phenomenon in the
United States, where they tend to follow a common pattern. Most commence with
a single complaint by one child, this being communicated to and causing deep
concern to the parents of the other children, and being followed by a rapid
escalation in the number and seriousness of complaints. He considers that
interviewers must in such cases make a special endeavour to check whether the
children's allegations have been affected by advice or suggestions from
parents or other associates. His summation was –
"This
case entailed an array of factors that give me cause for concern. Children
frequently reported highly implausible events that were never checked (the
presence of the defendant's mother during baths, repeated sodomy occurring
only minutes apart with other children who were said to be present) and they
were never reined into reality That some of their claims were plausible is no
assurance that they did not emanate from the same sources as the implausible
claims "
Other
material submitted with the First Petition related to the holding of sexual
abuse workshops in Christchurch in September and November 1991, the
establishment in December 1991 of a "support group" of parents
which exchanged information about the possibility of abuse having occurred,
discussions between parents and children about that possibility, and other
matters said to indicate the risk that the children's recollections had been
''contaminated" by inappropriate questioning and communications
All that material suggested to the authors of the Ministry's Report that –
"There
may have been something of a "sea change" in professional thinking
about children's evidence since 1993 In other words the material contained in
Dr Parsonson's report suggests that there is both a greater risk of
contamination of evidence from a variety of sources and greater problems
associated with children's evidence than was the generally accepted view in
1993 "
The
Ministry's Report examined the significance to the trial of the lengthy
evidence of Dr Zelas given in terms of s23G of the Evidence Act, which it saw
as being in sharp contrast to the Parsonson opinion, and including "a
number of statements which appear to be either open to debate or qualification"
This part of the Report raised several broad issues, which deserve further
consideration whatever the result of the Petitions, and are briefly addressed
in the Appendix to this opinion.
The Report concluded that the material presented with the Petitions took the
case past the position seen in 1994, when the Court of Appeal had declared
that "the claims that the evidence of the children was contaminated by
interviewing techniques, parental hysteria or the like lack any solid
basis" It accordingly recommended reference back to the Court of the
question whether a miscarriage of justice might have occurred "because of the techniques used to
obtain the evidence of the child complainants" (emphasis added).
I agree that the material accompanying the First Petition justified reference
of the topic of interviewing techniques.
The Second Petition adds support for the Parsonson opinions in various ways.
The most significant appear to be –
·
Letters from two overseas
psychologists, Professor Bull of Portsmouth University and Dr Lamb of the
National Institute of Child Health and Human Development, USA. Accompanying
curricula vitae establish their entitlement to express expert opinions in
this field Their letters advised that each had read Dr Parsonson's papers and
supported his analysis of the relevant literature Professor Bull said that
research over the last five years '"has enabled a better understanding
of relevant topics, especially how to conduct investigative interviews with
children". Dr Lamb reported that he was in the process of preparing a
full report.
·
Evidence establishing that one of
the parents had at the time of the inquiry a copy of a text on Ritual Child
Abuse which contains a list of bizarre events said to be symptoms of such abuse,
and other evidence of matters relevant to the risk of contamination.
·
A reference to the 1997 Report of
the Wood Commission. As pan of its consideration of the investigation and
prosecution of pedophile activity in New South Wales the Commission examined,
under the heading "'Kindergarten Cases", instances of multiple
allegations against staff at child- care centres by young children attending
those facilities The Commission's strictures against the interviewing
techniques adopted in New South Wales (multiple interviews, leading
questions, insufficient attention to discrepancies) have only limited
relevance to this case, as the techniques adopted in Christchurch were
plainly far superior to those used by the Australian police in the cases reviewed
by the Commissioner The report is however helpful in its
description of the phenomenal escalation of the number and seriousness of
allegations in the cases studied, and its conclusion that if the kindergarten
situation were combined with allegations of ritual sexual abuse, that
required still further attention to checking and testing the children's
allegations.
While it
does not appear from his report that Justice Wood was informed of Professor
Ceci's analysis of the American "mass allegation creche cases",
both men reached the same essential conclusion, namely that such cases call
for special care by interviewers, including cross-checking the statements of
different children. There is no evidence in the record of any such action by
the police or the SSU team: and the transcripts provided to me suggest that
such work would have been informative. By way of example they show that on
more than one occasion where one child claimed to have seen serious abuse
being committed on another, the second child denied any such happening.
The trial record shows that at no stage was the Court advised that
"multiple allegation creche cases" had special characteristics
which called for special care and examination. As the case appears to have
been the first of its kind in New Zealand that is understandable. Nor was the
Court advised that the English authorities had settled a detailed protocol
for evidential interviews. Indeed, although the 1994 appeal judgment
understandably placed emphasis on the fact that the issues of interviewing
techniques and possible contamination had been examined at considerable
length at trial, it does not appear that the arguments on which principal
emphasis is now placed were examined at trial. The expert evidence called for
the accused was from an Australian psychologist whose evidence proceeded from
a misunderstanding of the significance of s23G. This resulted in the Judge
informing the jury that some of his evidence must be disregarded The
psychologist said he did not know of any recent promulgation of guidelines,
although he thought this should have been done The Judge's comment to the
jury was that, although they had used different terms, the jury might think
that his evidence was to much the same effect as Dr Zelas'.
It is relevant to any consideration of what should now be done that the
response of the Crown Solicitor's office to the "children's
evidence" submissions has been to question whether Dr Parsonson's
opinion should be preferred to that of Dr Zelas; and that at this point Dr
Parsonson's is the only formal and detailed examination of the children's
evidence issues. That situation is unsatisfactory It could and should be
corrected by obtaining formal opinions from overseas experts with established
reputations in this field.
The letters supplied by Professor Bull and Dr Lamb, and the comments by
Professor Ceci which are part of the material presented, are supported by
curricula vitae which clearly qualify them to give expert advice on the
"children's evidence" issues Legal aid has been granted to the
Petitioner to engage Professor Bull and Dr Lamb, and the Petitioner's
advisers could be requested to obtain formal opinions from them If the legal
aid granted does not go so far, it would be both in the Petitioner's and the
public interest that further assistance be given Professor Ceci's involvement
to date appears to have been as a consultant to TV3 His studies of the
American "mass allegation creche cases" suggest that his opinion
could be of particular value There seems no reason why the Ministry, or Crown
Law if it preferred, could not seek his opinion. When obtained the
appropriate course must be for the experts' opinions to be exchanged, to find
out whether a common position can be reached, and if not the extent of the
differences of opinion. There must also be sufficient time for the Crown to
obtain further opinions if it so wishes But there seems no reason why the
matter could not be capable of resolution by agreement or, in the absence of
agreement, be sufficiently advanced to put before the Court on 31 May, if the
parties are encouraged to commence the process without delay.
The material emanating from Professor Ceci advises that in one of the US
creche cases he and others joined in an amicus brief for the Court. If he, or
any other expert prefers to give evidence in that fashion rather than as
"a witness for a party", consideration should be given to
requesting the Court to assist with that process.
In the end the critical issue of the credibility of the children was, of
course, one for the jury, not the psychologists. But if the opinions of Dr
Parsonson as to interviewing techniques, or the views of Professor Ceci and
Justice Wood as to the special hazards arising from the kindergarten or
creche environment, prove to have substantial support, it would in my view be
difficult to argue against the existence of a serious doubt about the safety
of the Petitioner's convictions.
Finally on these issues, I doubt whether the language of this part of the
Reference deals adequately with the issue of "contamination". The
Petitioner's arguments not only contend that special steps should be taken by
interviewers to minimise the effect of contamination, they also assert that
the fact that a child has been subject to inappropriate advice or questioning
is a matter which should be recognised as affecting the reliability of his or
her evidence, and considered when assessing credibility.
In my view the allegations of
defective interviewing techniques and of a failure to recognise the problems
arising from contamination of complainants' evidence by inappropriate
questioning and suggestions should both be the subject of specific reference.
4.2 [sic] The Retraction
The issue
raised by the Petitioner's challenge to the significance given by the Court
of Appeal to complainant A's retraction appears to have been incorporated in
the present Reference by its inclusion, amongst the relevant evidence for
consideration, of the report by Dr Parsonson directed to this issue. This
complaint is in my view less significant than those discussed in part 4.2
However, it may well fall into that category of complaint "insufficient
in itself to have changed the jurors' assessment", which may
nevertheless be significant if considered with other matters: see Farmer. No
amendment of the Reference is required.
4.3 The Trial Process
A
considerable number of complaints were made under this heading. The
Ministry's Report did not consider these to deserve reference.
A reading of the trial record, and particularly the 17 oral judgments
delivered during its course, shows consistently careful attention being given
to the many problems that arose. It also shows that the Judge was
understandably concerned not to allow the case to be unduly prolonged, nor
the scope of its inquiry to proceed beyond what was necessary, being aware
that its complexity would in any event tax the capacity of the jury.
Save in one instance I agree that there is no substance in the many
complaints about the trial procedure. The exception relates to the complaint
that the defence was prevented from cross-examining or leading evidence on
matters which would have supported its contention that the interview process
had produced outrageous and incredible allegations, and that the children's
credibility could not be adequately assessed unless the jury knew of those
allegations.
Part of the original complaint on this head was that the defence had not been
allowed to have all the interviews of each complainant put before the jury.
During the appeal it became common ground that in fact the defence had been
permitted to ask for the playing of tapes not introduced by the Crown,
"subject to relevance": see Oral Ruling No 6.
However there was restriction of the defence as to the extent to which it
could cross- examine on or lead evidence of allegations by the complainants
which were not the subject of charges before the Court, as see Oral Ruling No
14. The defence had sought to lead evidence to contradict answers given by a
complainant about such allegations, on the basis that this went to the
central issue of the complainant's credibility. The Crown argued that the
evidence did not go "to any fact in issue in this trial", and was a
further attempt to avoid the rules against examination of collateral issues.
Ruling No 14 examined recent authorities, including R v Funderbunk [1990] 2
All ER 482, where the Court of Criminal Appeal supported a statement in Cross
that "where the disputed issue is a sexual one between two persons in
private, the difference between questions going to credit and questions going
to the issue is reduced to vanishing point." In the end, after stating
that "in my view, it is truly necessary to firmly confine this trial
within proper limits and to avoid a multiplicity of side issues", the
Judge upheld the Crown's objection. And in the Court of Appeal a renewed
complaint that the Judge had wrongly applied the rule against collateral
attacks on credibility was rejected as being without substance
Putting the point at its most favourable for the Petitioner it is unlikely
that the reference of this issue back to the Court of Appeal would result in
a different conclusion unless the Court accepted that there were new factors
bearing on the argument However if the Court were persuaded that the new
evidence concerning interviewing techniques and the risk of contamination
established that there was in this case a special need to test the
credibility and reliability of the child complainants, it might see that need
as a new factor bearing on the question whether the matters sought to be
examined were "collateral" issues.
The 1994 judgment saw the acquittals by the jury on the more bizarre
allegations charged, and its entry of convictions on "the charges that
could be more readily comprehended", as evidence of conservative and
common sense differentiation. That interpretation may need to be
reconsidered, particularly if the opinions of Messrs Parsonson and Ceci that
it is not possible to tell whether the "more comprehensible"
allegations had any better foundation than the bizarre are found to accord
with current professional opinion.
Allied to the Petitioner's complaints of restriction of the defence in the
manner just discussed are his complaints that the prosecution was selective
in the material it placed before the jury and had presented a
"sanitised" version of the children's evidence. That contention was
categorised as "nonsense" in the Crown Solicitor's response to the
First Petition. However the material provided to me does establish that –
·
Of the 42 charges involving 20
children committed for trial, only 28 charges involving 13 children were
included in the draft indictment;
·
Numbers of allegations of serious
offending included in the statements made by those 13 children were not made
the subject of any charge; and
·
Numbers of the charges which were
laid were put forward on a very conservative basis: for example
(i) Allegations by complainant F that the
Petitioner had "put needles up my bum" and that this had caused her
to lose "lots of blood", which would support a charge of unlawful
sexual connection were charged as doing an indecent act by "touching her
bottom with a needle", and
(ii)
Allegations by complainant G that the Petitioner had put his penis
"in my bum" were charged as indecent assault "by placing his
penis against G's anus.
It may
well be that any selectivity was intended to avoid extravagant and
irresponsible charges, and not intended to operate to the prejudice of the
Petitioner. That interpretation is supported by the father of one of the
complainants He reported that, after he and his wife had indicated that they
had concerns about the effects on their daughter of involvement in the Court
proceedings and about the way in which those proceedings had escalated, they
were visited by the Crown Prosecutor-
"He
came across in a way that satisfied us. He said some cases they won't go
ahead with. The more bizarre cases really, they won't be pursuing the more
outrageous claims. Only the ones that had some substance would be followed up
and we were persuaded by him really to go ahead."
But if
there was a "sanitising" of the case the motive for that action is
less important than its effect.
The significance of excluding allegations of an extraordinary nature in child
sex abuse cases was considered by the Wood Commission at paragraph 5 60 of
its report There the Commission warned against any tendency to suppress
evidence of Satanism or ritual conduct "for fear that it may discredit
the prosecution", stating that "fairness dictates the need for full
disclosure" Ritual sexual abuse was suggested by some, though not all of
the Civic Creche children. The Hudson text on that topic was available to the
support group, but the extent of its distribution is uncertain. The topic
does not appear to have been as predominant as in some of the overseas cases.
However the reasoning behind Justice Wood's cautionary statement is relevant,
and is of course supportive of the Petitioner's complaint.
In total those matters in my view support the addition as a new reference of
the question of the correctness or otherwise of restricting the examination
of allegations by the complainants other than those the subject of charges
before the Court. There is in my view some merit in the Petitioner's argument
that "the jury had to see that the children were capable of outrageous
and fanciful allegation".
4.5 The Jury
The First
Petition charged three jurors either with misconduct or with having
"inappropriate" associations with the prosecution case.
The Ministry's report supported reference of the allegations relating to one
juror, but saw no substance in the others.
The Second Petition makes new and serious allegations against the third juror
named in the First Petition, but does not provide any evidentiary basis for
those allegations. I understand that your officers have asked Petitioner's
Counsel whether she can provide some evidentiary support for the new
allegations. I support that action. "Insubstantial allegations should
not be encouraged": Burt Equally, if supporting evidence is provided,
clearly the "juror issue" reference should be broadened. In that
event it would also be appropriate to refer the allegation against the second
of the original trio, as a matter not in itself of great significance but of
possible significance when considered with the other jury issues.
4.6 Non-Disclosure
The
Ministry's Report noted that additional matters were at the time under
consideration. These produced the advice at clause 9 2 of the Reference that
the Petitioner claimed -
"That
photographs that were clearly important for the defence -
(a) Existed at the time of the
applicant's trial; and
(b) Were in the possession of the
Crown at that time; and
(c) Were not disclosed to the
defence despite a request for them being made "
That claim
then became the third reason for the Reference- see clause 10(c) –
"(c)
That, if the applicant establishes that the
photographs described in clause 9 were not disclosed to his counsel at trial,
this could lead the Court of Appeal to the conclusion that a miscarriage of
justice might have occurred because photographs that the applicant considers
would have been important to the defence were not disclosed."
The Second
Petition makes additional claims of non-discovery of a wide variety of
documents. It is difficult to gauge their significance from the particulars
given. However so far as they are sufficiently described to be identifiable,
and can be seen to relate to the photographic record, or the issue of
"parental contamination", the Reference should be amended to
include those documents. This must of course be done in sufficient time to
allow the Crown to check the allegations and make such response as seems
appropriate.
|
