|
|
The Christchurch Civic
Creche Case |
||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
The Solicitor-General, Crown Law
Office (S P France and M J Thomas)
Table of Contents I. Introduction II. The
Investigation A Key
Factual Events B Organisation III. Mass
Allegations A The
Schedule Reports B Mass
Allegations General (a) Writings (b) Specific Issues (i) Interviewers (ii) Competing Hypotheses (iii) Contamination Evidence (iv) Distinguishing true and false Allegations (v) Public Meetings (3) Would the Information Available Today on Mass Allegations
have Affected Justice Williamson's Decisions (4) Should the Jury Have Known More? IV. Interviewing A Schedule
Reports (1) (2) Memorandum of Good Practice (3) Joint CYPFA/Police Guidelines B The
Ellis Case Interviews (1) Reported Interviews from Two Mass Allegations Cases
Considered (a) State v Michaels (b) The (2) Dr Lamb's Research (3) Interviewing Generally (4) Conclusion on Interviews V. Conclusion
I. Introduction 1. As
envisaged by the Terms of Reference these submissions are filed by the Crown
Law Office on behalf of the Solicitor-General, the New Zealand Police and the
Department of Child Youth and Family Services who have responsibility for the
specialist interviewers. The Terms of Reference refer to the Department of
Social Welfare but that does not exist as an entity, and Child Youth and
Family are the relevant organisation. 2. The
submissions are limited as much as possible to paragraph 1 of the Terms of
Reference, as requested by your letter of 10 May 2000. Where possible,
references are given to the relevant passages in the depositions or trial
evidence (paragraph 1(b)). 3. For
convenience the following terms are used The Inquiry - referring to the Ministerial Inquiry
into the convictions of Mr Peter Ellis, and including Sir Thomas Eichelbaum; 4. The
Crown's understanding of paragraph (1) of the Terms of Reference is that the
primary focus of the Inquiry is the current state of understanding concerning
mass allegation child sexual abuses. The Inquiry is required to identify the
internationally accepted best practice for investigating mass allegations and
for interviewing children within that context. 5. For
reasons which will become clear in the submissions, the Crown does not
consider that such a blueprint for mass allegation cases exists. There is very
little actual empirical research into mass allegation cases as a separate
phenomenon in the sense of considering whether different rules and standards
should be applied to these cases. None of the Guidelines and Reports referred
to in the Schedule recommend a best practice for these cases other than
perhaps agreement on the need for a joint inter-agency approach and early
co-operation and planning. Concerning interviewing techniques, there is
little or nothing that focuses on interviewing children in a mass allegation
context, and how, if at all, that should differ from interviewing other child
sexual abuse victims. 6. This
understanding of the current position places the Crown in some difficulty as
it is, in effect, a belief that the Inquiry is based on a fundamental
misconception. However, to provide as much assistance as possible to the
Inquiry the submissions describe the investigation and interviews that
occurred in the Ellis case, describe the present organisational structures
for the investigation of child sexual abuse, review the Schedule Reports and
other writings, and revisit the issue of the formal interviews. 7. It
has been assumed that the Inquiry has access to the material filed in the
latest appeal, including the Crown submissions. Aspects of these will be
simply referred to, rather than unduly lengthening these submissions by
repetition. If the Inquiry does not have any of this material they will of
course be provided. In terms of mass allegation cases and Reports, these
submissions have followed the Terms of Reference and are generally limited to
those matters listed in the Schedule to the Terms of Reference. If
submissions are particularly required on any case or Report other than those
listed in the Schedule, then the opportunity to do so is specifically
requested. 8. The
structure of the submissions is: I The Investigation II Mass Allegations 8.1.1 Consideration of the Schedule Reports: Orkney, 8.1.2 Mass allegations discussed III Interviewing 8.1.3 Consideration of the Schedule Reports: The 8.1.4 Discussion of the current status of "research on
interviewing techniques" and submissions on the quality of the Ellis
case interviews.
II. The Investigation A Key Factual Events 20 November 1991 ▓▓▓▓▓▓ the mother
of ▓▓▓▓▓▓ complained to the creche that
her son had indicated he "hated Peter's black penis". "On 25 November 1991 I received information in relation
to the Christchurch Civic Child Care Centre and specifically in relation to
the defendant, Peter Hugh McGregor Ellis, who I now identify before the
Court.
B Organisation of Investigation 9 There
was already established a Child Abuse Unit within the Christchurch Police.
Detective Eade was a member of the Unit from 1990; others in the Unit were
the head of the Unit, Detective Mitchell, Detective Nicholl
(From April 1992) and also Detective Ell, who was responsible for preparing
the handout at the Knox Hall meeting. 10 Detective
Senior sergeant Ell was appointed to take charge of the Inquiry on 25 March
1992. He had previously been involved (1986 - 1989) in preparation of Police
guidelines for investigating child abuse crimes, and was instrumental in
setting up the first Child Abuse Unit within the New Zealand Police. The
recommendation for further social workers (see next section) came from him.
11. There
was already established a Specialist Services Unit in the Department of
Social Welfare, part of which consisted of an Evidential Videoing Unit. The
Unit was the second of its type, which were being progressively established
through the country. The Christchurch Unit was established in 1989, and
followed upon the initial unit in 12. The
Specialist Services Unit was under the Superintendence of the Regional
Psychologist, Mr John Watson. Attached to the Video Interviewing Unit at that
time were two psychologist/interviewers - Suzi Hall
and Sue Sidey, and a specialist interviewer, Cathy
Crawford. 13. In
April 1992 Linda Morgan was seconded to the Christchurch Unit from 14. The
interviews were primarily conducted by three specialist interviewers who were
all very experienced in the field (sourced from briefs, and testimony at
depositions and trial): 14.1 Sue
Sidey: Has an MA (Hons)
in psychology. She had been a part-time counsellor for the Auckland HELP
Foundation, and at the time of the Ellis interviews had already conducted in
excess of 400 interviews. She had been involved in training other evidential
interviewers, and in conducting and facilitating workshops and seminars in
the area of sexual abuse; 14.2 Cathy
Crawford: She did not testify at
trial because none of her interviews were the basis of trial charges; she did
testify at depositions. She has a Bachelor of Social Work; her early
experience was in 14.3 Lynda
Morgan. She has a Certificate in
Social Work and had been working in the field for over nine years. She had
conducted in excess of 400 interviews. She worked in 15. In
addition to the use of three experienced interviewers, other structural
systems were put in place to assist with the investigation: 15.1 Three
specialist social worker positions were created for the project. Job
descriptions were prepared and are included in the accompanying materials
(Materials, volume 1 tab 3). These three positions were: 15.1.1 Prosecution
Support, the primary focus of which was working with those families whose
children were complainants (Jan Gillander) 15.1.2 Operations
Support, the primary focus of which was organising interviews and assisting
in that area (Donna Ellen) 15.1.3 Counselling
Support, the primary focus of which was dealing with and assisting
non-complainant creche families (Jan Crossan).
This position was funded by the Christchurch City Council. 15.2 Dr
Karen Zelas was used in several capacities. She describes her functions
in testimony bust essentially she was assisting the interviewers by reviewing
parts of interviews with them to discuss technique issues, she attended the
Knox Hall meeting to give assistance if needed, and indeed answered some
questions; she reviewed some tapes for the Police to assist in the
prosecution decision. 15.3 Suzi Hall was kept out of the Ellis case so
that she could attend to the other interviews and tasks that the Evidential
Videotaping Unit had. She also provided support and supervision for the
Inquiry interviewers; 15.4 The
overall Unit Manager, Mr John Watson, is himself an experienced
psychologist and was responsible for oversight of the Unit. 16 It
is submitted that several features mark out this investigation as being
professional, and as will be seen from consideration of the inquiries covered
in the Schedule Reports, as being significantly ahead of its time: 16.1 There
was early inter-agency co-operation with Detective Eade and Sue Sidey meeting early on; 16.2 16.3 The
quality and experience of the interviewers; 16.4 The
support services installed for both the interviewers (eg
Zelas, Hall) and the operation generally (eg the
new social work positions); 16.5 The
early involvement of the Crown Solicitor's office to provide expert advice; 16.6 The
planning undertaken for the two public meetings with each public meeting
itself being preceded by a planning meeting; 16.7 The
use of public meetings as an opportunity to provide parents with advice so as
to minimise the risks of contamination and improper questioning. The range of
expertise available at those meetings; 16.8 The
quality of the record keeping with both the technical aspect of recorded
interviews, and also the informal record keeping by interviewers and parents
alike being notable.
A The Schedule Reports 17 The
schedule to the Terms of Reference lists four reports that have a "mass
allegation genesis - Orkney,
18 The
background facts leading to an inquiry were that several children from one
family (W) reported abuse. Initially the abuse reports related to
intra-family activity. Later the reports extended to allegations perhaps
involving a local Minister, and then to children from other families and
their parents. These families were known to each other. The children from W
family were removed early in the process; the children from the other
families were also removed from their families without themselves having at
that stage made any allegations of abuse or even having been questioned. The
removal was based solely on the W children's allegations. The concerns over
the removal processes were the impetus for the Inquiry. 19 The
interview process was subject to several and varied criticisms: 19.1 Lack
of clarity as the purpose of the interviews; for example were they
investigative or therapeutic? 19.2 Lack
of training of the interviewers which in turn is reflected in some detailed
criticisms of some of the interview techniques, for example lack of interview
planning, the way in which denials were handled by interviewers, and the
emphasis by the interviewers on believing the children; 19.3 Inadequate
facilities, which most particularly include either the inability to record
all interviews, or the failure to so record; 19.4 The
number of interviews (up to nine or 10) within a short time, and all prior to
any actual disclosure (in 19.5 Technical
failutes such as not keeping drawings made by the
children during the interviews. Orkney Report: Criticisms of Process - Investigation 20 Observations
concerning the investigation process include: 20.1 As
with all reports, the need for inter-agency co-operation is stressed, and it's absence criticised. 20.2 The
need for an early joint meeting and consequent planning is emphasised; 20.3 There
was criticism of the over careful approach to contamination which meant the
necessary exchange of background information between agencies and
interviewers did not occur; 20.4 There
were criticisms of the extent to which parents were not kept informed. Here
it is necessary to bear in mind that the general Inquiry context was abuse
within the family, and the Report is recognising the need to balance the
needs of the possibly abused children on the one hand against the rights of
possibly "suspect" parents on the other; 20.5 The
Report notes there are still no guidelines at that time (post-cleveland) but also notes (15.23): "The investigation of child sexual
abuse is a matter of immense complexity, where no single infallible guideline
is available except in the simplest cases." 21 The
report notes (15.21) it is making no attempt to provide comprehensive
guidance. It foresees Guidelines being developed which would cover cases of
abuse including those of multiple abuse. (To the extent that the Memorandum
of Good Practice can be seen as the fulfilment of this prediction, it is
notable that no specific coverage of mass allegations is undertaken in that
later document either) 22 As
the earlier description of the Ellis process highlights, most of the concerns
in the Orkney report are not found in Ellis. Rather the Ellis case is an
illustration of an investigation which has recognised the importance of the
factors identified by the Report. For example: 22.1 The
experience of the interviewers 22.2 The
technical aspects such as recording of interviews, preservation of exhibits,
etc; 22.3 The
clear understanding of what the interviews were about and their purpose (see
for example the extensive cross-examination at depositions of Sue Sidey, pages x-y); 22.4 The
early establishment of a team approach with involvement of Police, Specialist
Interviewers, Intermediary Social Workers, and the Crown Solicitors office; 22.5 The
decision (discussed elsewhere) to keep parents generally informed by way of
public meeting and the issuing at those meetings of guidance designed to
minimise contamination and subsequent evidential difficulties. Orkney Report: Mr Ellis's Court of Appeal
Submissions on Orkney 23 Concerning
Orkney these are found at page 58 (Volume I) of the appellant's submissions: 23.1 The
submissions cite from paragraphs 15.22 and 15.23 of the Report with a focus
upon the need for investigators to keep an open mind. (The context in the
actual Report was the need for balance between taking allegations seriously
on the one hand, and keeping an open mind on whether the allegations are well
founded on the other.); 23.2 Mr
Ellis' submissions use this aspect of the Report to focus upon alleged
non-disclosure by Detective Eade, and more generally the proposition that
Detective Eade had a closed mind. 24 No
dispute can be taken with the general proposition concerning an open mind. It
is as true for child abuse allegations as it is for any investigation. Not
surprisingly it is not accepted that Detective Eade had a closed mind, but
rather than get into such a debate, assistance can be gained from a
consideration of some external circumstances: 24.1 The
Reports all stress the need for a multi-disciplinary approach, as indeed
occurred in the initial Ellis case. One benefit of such an approach must be
to guard against the risk that one person's view will distort the process (as
happened in 24.2 It
should be remembered that in December of 1991 Detective Eade closed the
initial inquiry on the basis that there was insufficient evidence to proceed
with it. This does not suggest a closed mind, or a mind committed to
prosecution; 24.3 The
impetus for the resuscitation of the creche inquiry were
disclosures by children. Such disclosures were made in the course of videotaped
interviews conducted by very experienced, non-Police, interviewers. It is not
credible to suggest that Detective Eade somehow drove the prosecution; 24.4 The
final stark reality is that the context for the Ellis case is quite different
from those inquiries which are reviewing how a process could have gone so
wrong. In the Ellis case it did not go wrong; any personal beliefs Detective
Eade had are irrelevant, but in any event are supported by the verdicts and
subsequent appeal decisions. (2) 25 The
background facts leading to this Inquiry were concerns over an apparently
alarming increase in reports of sexual abuse of children in Cleveland, Middlesborough. The Report canvasses wider aspects of the
investigation of child sexual abuse cases, but has as its core focus a
consideration of how a theory of "reflex relaxation and anal
dilation" was able to be championed by one or two medical practitioners
so as to create the spectre of a sudden dramatic crisis of sexual abuse on
children (125 children from 58 families in a five month period). As such the
context is obviously markedly different from Ellis. It is not a case of mass
allegation in any sense of inter-related complainants or offenders. That said, some aspects of the Report touch more generally on
investigation of allegations of sexual abuse. 26 The
central criticism to emerge was the lack of a proper understanding by the
main agencies of each others functions in relation to child sexual abuse.
Also noted was a lack of communication between these agencies. For example,
it would seem the Police absented themselves at an early stage, having reached unfavourable conclusions about the
diagnostic technique. 27 As
with Orkney, there also emerges confusion over the purpose of interviews with
the same lack of understanding or precision as to whether the interviewer
contact with the child was diagnostic/evidential on the one hand, or
therapeutic on the other. 28. At
paragraph 12.34 of the Report there is set out a list of principles
applicable to interviews; all the professionals consulted were in agreement
on these. The principles make familiar reading, and can be seen very much to
inform the detailed cross-examination of Sue Sidey
at depositions (see pages 26/33 ff). 29 Contamination
was not an issue in the Cleveland Inquiry.
30 The
points made in this section under the Orkney Report relate similarly here and
will not be repeated. No doubt as a product of 31 As
touched on under Orkney an observation that can be made about these reports
is that they arise in the context of failed prosecutions (San Diego and New
South Wales) or serious misdiagnoses (Orkney, Cleveland) The process
differences immediately and overwhelmingly apparent in the Ellis case perhaps
illustrate why the Ellis process has in fact withstood the subsequent
intensive scrutiny to which it has been subjected.
32 Concerning
32.1 A
quote from paragraph 4.145 of the Report which generally concerns the
on-going need of investigators to continue to assess credibility. It is in
essence the "open mind point" already discussed under Orkney. The
context of the 32.2 Quotes
are taken from paragraphs 12.7, 12.8, 12.9 and 12.32 of the Report. The main
thrust of these is to establish the proposition that children can make
incorrect allegations. Again, as a proposition no-one would dispute that. The
issue remains whether sufficient procedural safeguards were in place to make
it right to allow the jury, in the normal way, to make that assessment. The
Crown proposition has always been, and remains, that there were sufficient
safeguards. In the particular investigation context now being considered,
reference is again made to the inter-agency approach, and the use of trained
independent interviewers. The processes were clearly significantly advanced
on those used in any of the Reports; 32.3 A
series of propositions about interviews are made. These are addressed more
generally elsewhere and will not be repeated here. (3) 33 The
circumstances giving rise to this Report are more varied than in the other
Reports. As part of a general inquiry into the New South Wales Police it
seems to have been suggested that paedophile groups were operating with the
knowledge and indeed with the assistance of the Police. As part of the
Inquiry an analysis was done of failed prosecutions in two kindergarten cases
- the Seabeach Kindergarten (paragraph 7.93-7.200)
and the North Shore Kindergarten (7.201-7.220) 34 The
history of this investigation is detailed in the Report. General observations
of the process highlighted by the Report include: 34.1 The
lack of training of the Police (7.94) who were responsible for much of the
interviewing (NB particularly Footnote 906 of the Report). 34.2 The
inadequate history of the investigation prior to actually interviewing the
children (7.95-7.134) 34.3 The
resort to "pro-forma" lists of questions for parents to ask
children once resource pressures come to bear (7.106) 34.4 The
age of the children which should influence the style of questioning and did
influence the "competency" issue on which the charges were
eventually dismissed (7.193) 34.5 The
use of a public meeting (7.150); 34.6 The
use of a probationary Constable who had no experience in child sexual abuse
cases to interview most of the children (7.151). At times she interviewed the
children alone and could not keep a proper record (7.153). At other times she
carried out interviews in the presence of other children (7.153). By contrast
the specialist child abuse persons (FACS) were not used at all (7.157); 34.7 Difficulties
with the communication with the parents and an apparent increasing
disillusionment of the parents with the system (7.173-7.179). Of interest is
the apparent conflict over whether there should be a further public meeting
(7.178) 34.8 The
detailed list of inadequacies set out at paragraph 7.197 of the Report 34.9 The
conclusion at 7.200 that no finding is made as to whether the allegations
were in fact true.
35 This
involved allegations against the director of a kindergarten. Unlike Seabeach the matter was referred reasonably early to a
Child Mistreatment Unit, headed by a Police Officer with no experience in
child sexual abuse prior to his appointment to the Unit (7.203). His staff were described as a "burnt out" Police
Constable and a Police pilot, neither of whom had any experience (7.203). Of
interest: 35.1 The
investigation was more controlled than Seabeach. 35.2 Many
of the interviews were conducted by FACS (a specialist group), but there
seems to have been a belief that, before a prosecution could commence, reinterviewing was required by either Police or DPP
staff; 35.3 This
confusion and uncertainty over who should or can interview, and the
uncertainty whether repeat interviews were therefore required, appears to
have led the CMU director to determine against bringing any prosecution. Interestingly,
on the face of the scant information available, a positive prosecution
decision would seem to have been much more justified here than in Seabeach.
36 At
paragraph 7.221 the Report notes the need for a centralised well resourced
agency, a multi-disciplinary approach and joint interviews, together with
recording of allegation interviews "at least by sound and preferably by
video". 37 Following
paragraph 6.191 a list of recommendations are made in relation to Child
Sexual Abuse Investigations. These do not seem to be "mass allegation
specific" and contain general recommendations about training and resourcing to meet any claims of sexual abuse. 38. Perhaps
dealing first with the second of the case studies, the North Shore
Kindergarten case, it is difficult to draw many lessons from what essentially
was a prosecution decision not to continue. The key factor which emerges
seems to be confusion and a lack of definition in roles between the agencies.
This manifested itself either in repeated interviews by different agencies or
the perceived need for such. No similar difficulties have ever been suggested
in relation to Ellis. 39. The
Seabeach case, rightly described in the Report as a
debacle (7.198), certainly perhaps gives one increased comfort about the
Ellis case. It becomes very apparent that the conduct of the Ellis
investigation was substantially more professional and informed than anything
able to be achieved in these case studies. It can be comfortably asserted
that any 40 The
appellant's submissions on this Report commence at page 66 (Volume I) 40.1 The
submissions set out a series of points taken from various
of the expert witnesses. Generally, the points are reflective of research
discussed elsewhere, and do not require specific comment here. The
specialist's points are followed by a recitation of the Report's concerns
about the Seabeach Kindergarten case. The Crown has
earlier expressed the view that the approach taken in Seabeach
carries little or no resemblance to the quality of the Ellis case
investigation. These will not be repeated in this section. 40.2 Satanic
Ritual Abuse At paragraph 58 of
Mr Ellis' submissions (page 77) there is a section concerning Satanic Ritual
Abuse Cases, and the discussion of the topic in the 40.2.1 The
Crown never portrayed the Ellis case as a satanic abuse case. There were
certainly what might be called "bizarre" or fantastical allegations
but these were not alleged as satanic or ritual abuse; 40.2.2 There
was only the one group activity charged, namely the Circle count in relation
to ▓▓▓▓▓▓ (Count 19). It was this charge
on which the women were discharged, and concerning which Mr Ellis was
acquitted; 40.2.3 The
presence of bizarre or fantastical allegations was the subject of much appeal
consideration, initially in the affidavits of Drs Parsonson and Dalenberg, and then by these two and Dr Lamb in the
"responses" each filed. As it developed a common theme emerged: the
research was not at a stage where it could be said that the presence of
bizarre or fantastic allegations assists with determinations of credibility.
Dr Dalenberg has research that suggests it occurs
more often in (verified) serious abuse cases, the other two experts dispute
this research and Dr Dalenberg certainly did not
want to claim any assertions could yet be made on the basis of it; 40.2.4 A
common theme and popular belief has been that the Ellis jury did not have any
information about the wilder allegations. This is incorrect. Some allegations
made by children not involved in the trial were understandably not before the
jury, but concerning the complainant children it was open to the defence to
use any aspects of the children's tapes they wished to use. That this was in
fact the position has been established in successive appeals. (a) ▓▓▓▓▓▓
- Videotapes played were 6048 and 6050. He spoke of Peter putting people in
the oven wrapped in blankets. This included ▓▓▓▓▓▓
himself. It was discussed at trial (pages 73/74) in evidence in chief where
he expanded on it by discussing men guarding the ovens. He spoke of men such
as Spike and Boulderhead putting tomato sauce on peoples ears (75/20). He spoke of Mr Ellis using a ladder
to travel between buildings and the children having to do likewise (75/30).
Cross-examination occurred about the roof (77/20), about Mr Ellis dipping children
into the pond (80/30) and ovens (81/20); (b) ▓▓▓▓▓▓
- (Videotapes 6009 and 6011 played). She was asked about her claim to have
driven the blue van (105/39) and perhaps interestingly when challenged on
this accepted she did not in fact do so (106/1) (c ) ▓▓▓▓▓▓
- (Videotapes 6023, 6024 and as requested parts of 6025 and 6026). He was
challenged about stories he had told about guns (127) and his friend being
run over (127/32). Again under cross-examination he accepted that it was not
something he saw (128/8) (d) ▓▓▓▓▓▓
(Tapes play 6004, 6005 and 6007). He was asked about his claim that five men
had put their penises up his bottom. In cross-examination he explained it was
different days (111/10) He was cross examined about trapdoors and mazes
(162/35). He was asked about his claims of having sticks and burning paper
put up his bum (163/28), and his claim that several of the women were there
at that time. In relation to his claim of having a needle inserted in his
penis, he was cross-examined about this, and about his claim of real blood
flowing as a consequence onto the floor (164/25). He also talked of being put
in an oven and was cross examined about being put in cages (165/12),
trapdoors in the Masonic Lodge (166/15) and being put in coffins and being
buried in the ground (166/25); (e) ▓▓▓▓▓▓
(Tapes played 6029, 6030, 6031 and 6032). In addition to these tapes, she was
asked about incidents on the other tapes. For example at 186/30 ff she was
about her claim that Gaye put a knife up her vagina; 40.2.5 At
paragraph 66 (Page 74) of Mr Ellis's submissions, ritual abuse cases are
equated as being one and the same as mass allegation cases. It is difficult
to see the basis for such an easy transference of labels. It may be that any
particular case exhibits some features found in one or the other or both, but
the Wood report extract is very much focused on Satanic Ritual Abuse. 40.2.6 It
has to be observed in the Ellis
case that there are no Satanic Ritual Abuse convictions. The case was not
about them, and any charges that seem to reflect them such as Count 19
resulted in the jury expressing a doubt; 40.2.7 An
over-easy application of extracts such as those cited at paragraph 66 runs
the danger of preventing child abuse prosecutions. Considerations such as
those listed there are always to be borne in mind, and any deviation from
them needs to be explored but cannot perse be seen
as a bar to prosecution. The Wood Report is not a document that is dismissive
of the existence of this abuse nor which seeks to discourage prosecution (see
for example 2.61-2.70) 40.2.8 The
Seabeach case is a classic illustration of the type
of irrelevant Inquiry the Ellis case is often compared to. If a (4) 41 The
rationale for this report is not early to discern. Part of
its origins are clearly a failed prosecution of Dale Akiki, but the detail of that is not known. The report
has quite a strong organisational focus on deficiencies in the structure of
the San Diego District Attorney's Office, and its lack of a detailed strategy
for investigating and prosecuting child sexual abuse. 42 An
impetus for the Report seems to be identifying changes that are needed to
better be able to prosecute child molestation cases. This is a focus that
does not sit easily with the Ellis case in which prosecutions were
successfully obtained. However, some investigational recommendations do
emerge. 43 It
is noted (page 8) that more resources are needed for
multi-victim/multi-perpetrator cases. 44 Again
evident in this case, as with the other Reports, is the confusion between
therapy and investigation (page 15). It arises under a heading of
"contamination by therapists", but the underlying concern is again
the lack of delineation in the respective purposes of interview and
therapeutic contact with the children 45 Also
under the contamination heading there is a reference to meetings with the
parents, and the fact that parents discussed things even though cautioned not
to do so (page 14). The only conclusion drawn by the Report on this aspect is
seemingly conclusion 9 on page 31 that witness contamination reduces the
reliability of testimony; there is no resultant recommendation in the next
section. 46 It
is fair to observe that a theme again emerging is the need for early meeting
of involved professionals so as to ensure a cohesive approach to the
investigation. 47 It
seems that the Akiki
prosecution was sourced in an over-zealous application of the " 48 As
noted earlier there was by comparison an early team approach established in
the Ellis case. Further the primary evidence relied on in 49 The
dual investigative/prosecutorial role of the District Attorney's office is
not easily transferred to the 50 The
appellant's submissions on the (5) Conclusions
on Reports 51 The
Crown submits that a consideration of these Reports can only result in a
sense that
B Mass
Allegations Generally (1) Introduction 52 In
considering mass allegations as a phenomenon, it is necessary to put aside
any discussion of the research into interviewing technique per se. That is
addressed in the next section of the submissions. This part of the
submissions has as its focus the concept of mass allegations and whether,
separate from ordinary interview technique debates, there is a new body of
understanding about mass allegations. Do mass allegations introduce different
concerns? Should one interview a mass allegation child differently? 53 It
should also be stated at the outset that the concept of mass allegations is
not in itself unique. In 54 In
the Court of Appeal submissions, counsel for Mr Ellis identified five
characteristics of mass allegations: The trigger, 55 If
one accepts for the moment without argument that these are traditionally
present in creche cases (and to them might be added publicity), the issue
that must be addressed is "what is their significance"? One can
easily accept the obvious point that mass allegations mean that there are
greater risks that some well-recognised concerns will have in fact
eventuated. For example, the possibility of contamination is obvious. 56 The
Crown's submission, however, is that when one goes to the published writing,
it does not take one beyond this point. There is no consideration of mass
allegations as a separate phenomenon, at least in the sense of actual
research into whether different rules and assumptions should apply to these
cases. The Reports already considered illustrate this point. Each has its
genesis in a mass allegation, albeit of very different types. Each identifies
the need for an early plan and joint agency co-operation, but beyond that
there is little that represents a blueprint for mass allegations either as an
investigation or indeed for interviews within that context. Further,
consideration, for example, of documents such as the Memorandum of Good
Practice provides no assistance either on whether one should approach a mass
allegation interview differently from an "ordinary" interview. 57 The
conclusion of the Court of Appeal on this topic is submitted to be correct: "However,
no new contaminating factor is involved in mass allegation cases; the fact
that there are mass allegations merely tends to heighten the effect of known
factors, thereby compounding the problems of unreliability… 58 This
section of the Crown submissions: 58.1 Considers
any writings on mass allegations and some specific issues 58.2 Looks
at the issues relevant to mass allegations that were before Justice
Williamson pre-trial, 58.3 Looks
at the information before the jury and available to be put before the jury as
the defence wished, 58.4 Submits
in conclusion that the issues remain today as they always have been and as
they were appreciated at the time of trial, (2) Consideration of
Writings on Mass Allegations, and Some Issues (a)
Writings 59 In
preparing these submissions the Crown sought assistance on identifying mass
allegation writings. Our understanding is that there is very little that can
be seen as mass allegation specific, and even then much of it is descriptive
rather than research based. 60 To
explain this further, one can take an article cited substantially in the
affidavits filed in the Court of Appeal: Garven,
Wood, Malpass and Shaw (1998) "More than Suggestion: The Effect of Interviewing Techniques
from the McMartin Preschool Case" (Materials, volume 1, tab 4) That article analyses the various errors
that could be found in the interviews conducted in the McMartin
pre-school case; it then combines these errors into a single interview and
seeks to assess how many mistakes children can be induced into making when
presented with such a package (as always there is never any evidence that in
the actual case (eg McMartin)
any one child was exposed to all the errors). For present purposes the point
is that the article is not about the effect of such questioning in a mass
allegation context compred (sic) to its effect in an ordinary interview context; it is in
the end just another study on interview techniques with no particular insight
into mass allegations as a separate issue. This comment is true of almost all
the published writing. (This article is discussed further in the next part of
the submissions on interviewing.) 61 An
article by Bybee and Mowbray (1993, p768)
(Materials, volume 1, tab 5) considers the investigation and prosecution
difficulties that day care cases present. An introductory passage provides a
helpful overview of some of the issues: "While
no sexual abuse case can be described as easy to investigate, day-care abuse
appears to be specially difficult (Finkelhor et al., 1988). Some of these difficulties stem
from the very young ages of the victims, their limited verbal abilities, and
their vulnerability to threats and intimidation (MacFarlane & Waterman,
1986). Other aspects of day-care center abuse
contribute to prosecution difficulties as well: lack of cooperation from center staff and less corroboration by alleged
perpetrators (Finkelhor et al., 1988), and absence
of physical evidence (DeJong, 1985). Records of
abusive activities (e.g., videotapes and pictures) are also rare (Hollingsworth,
1986), perhaps because perpetrators frequently have
sufficient warning about investigatory efforts so that they can destroy such
evidence before it is found (Finkelhor et all.,
1988). The
article goes on to summarise various methods that have been suggested as
means of assessing the validity of these allegations. It concludes by
suggesting some techniques are better than others, but in the end limits
itself to suggesting fruitful directions for future research have been
identified. 62. Contrasting
articles can be found which suggest that the day-care abuse phenomenon is
history repeating itself with reference back to the child witch trials (Henningsen (1996) (Materials, volume 1, tab 6)) and
conversely which detail a totally verified example of abuse in a day-care
centre in circumstances where other workers were seemingly oblivious
(Abramson et al, 1997 (materials, volume 2, tab 7). Other articles explore
the characteristics of the victimisation and its impact on the children
(Faller, 1988 (Materials, volume 1, tab 8)). The proposition of "future
research possibilities" already noted in Bybee
and Mowbray (1993) is repeated in 1997 by de Young who suggests the day care
centre cases presently tell us very little but "do set an agenda for the
international child abuse professional community for research, practice and
discussion". A 1999 article (Schumacher and Carlson (Materials volume 1,
tab 9)) concludes: "Research
regarding child abuse in day care settings is sparse and in its infancy.
Nevertheless, consideration is warranted of risk factors identified by
current research. Practical issues must be addressed. For example, positive
male models are considered desirable …." 63. The
focus of that article is looking at ways of making day care centres safer,
but the introductory proposition about sparse research is submitted to be
correct. There is not a body of research that really considers mall
allegation as a topic in itself. The primary focus has been to use them as a
source of material for further analysis of interview technique such as Garven et al article. 64 Dalenberg, who was the Crown expert at the appeal, has
written an article "Overcoming Obstacles to Just Evaluation and
Successful Prosecution of Multi-victim Cases" (Materials, volume 1, tab
10) 65 It
appears in a book on interviewing trauma victims edited inter alia by Faller. The article begins with a rather severe,
and perhaps extreme, summary of how those who criticise the day-care cases
typically describe them. 66 However
she moves from there to explore some of the prosecution difficulties that
these cases present. These include the likelihood of multiple interviews and
complaint delays, the likelihood that there will be more leading questions
since interviewers are likely to be more knowledgeable about the offending,
the likelihood of bizarre detail, the likelihood that some children will be
severely traumatised and what impact that may have on the interview, the
likelihood of cross-contamination, and the fact that there is likely to be at
some stage media, advocacy groups and a child's therapist involved. Also
addresses are parental support groups. 67 In
relation to these difficulties Dalenberg suggests
strategies that may protect the investigation from these concerns. Hers is
not a proposal that the risks can be eliminated, so much as managed and
minimised. From an investigation viewpoint, there is material in the article
that can be considered for the future; it is important, however, not to see a
first piece such as this as anything more that what it is - the beginning of
a process rather than representing a settled position or understanding. 68 Apart
from this material, the Crown is unaware of a body of writing that focuses
upon mass allegations in a way that support any proposition that there is an
internationally recognised best practice model for such cases. The Crown's
position remains that mass allegation cases must inevitably raise on a
greater level some recognised risks. There is a need to try and minimise
them. Further, whether the risks have materialised, and to what extent, can
be explore both pre-trial and at trial. Beyond that there is no best practice
model. (b)
Some Specific Issues 69 Looking
at the submissions on mass allegations filed by Mr Ellis on the appeal, the
following submissions emerge (page 79): 69.1 It
is vital that all potential victims be interviewed by well trained,
professional interviewers as soon as possible; 69.2 Evidence
in support of multiple competing hypotheses should be sought because of the
risk of contamination; 69.3 Investigators
must be vigilant in assessing contamination influences; 69.4 Once
contaminated it is typically impossible to distinguish fact from fiction 70 To
these issues might be added the issue of public meetings. Each is addressed
in turn. (i) Interviewers 71 At
first blush, the complaint about interviewer training seems a strange point
given it is common ground that the Ellis case interviews were all conducted
by trained professionals who worked in a specialised unit dedicated to that
activity. However, further reading of Mr Ellis's sunbissions
shows that the proposition is that the parents' contact with their children
as "interviews". It then follows that the parents are not trained
nor are their interviews recorded. 72 The
obvious response to this submission is that these are not
"interviews" in the sense used in the relevant literature. Further
as Justice Williamson notes (Ruling 2, page 11): "Ideally
the evidence of complainants in cases of this nature would arise clearly and
precisely and without any previous questioning. Such a position, however,
would be unreal. It just does not happen. Victims of sexual crimes are
affected by emotional and relationship factors to such a degree that, even
entirely genuine and truthful evidence, may be given hesitantly and only when
the right occasion presents itself. It would be a somewhat false and
artificial standard for Courts to impose in such cases a requirement that
parents should have had no detailed communication with their child about such
matters prior to any admissible evidential interview. The need for the child
to be interviewed only arises usually when some relevant information has been
given to the parent or to another carer. Understanably
parents would discuss such matters with a child who was worried or who was
about to attend an interview. The problems may come, however, from the nature
and extent of a parent child communication. As usual with such matters, it
will be a question of degree" 73 It
is also not in fact the case in any event that these "interviews"
were wholly unrecorded. Some parents kept very detailed notes which were disclosed,
introduced as exhibits and which were the subject of extensive
cross-examination (deps 512 ff) 74 The
reality in the Ellis case is that the formal interviews were p[rofessionally done and
recorded; and the informal interviews were the subject of exhaustive
exploration. 75. Further
it is clear that the two public meetings were very useful vehicles in which
to advise parents how to act and not act. As Justice Williamson observed the
perfect world does not happen, and of course what may be perfect for the
criminal justice process is not necessarily what is best for child and
parent. It is a matter of recognising and balancing the competing tensions;
for the criminal justice system it is a matter of assessing departures frtom the ideal and making a judgment on their
significance. That judgment can only ever be informed in the end by the
actual evidence as to what did and did not happen. (ii) Competing
Hypothesis and 76 These
two issues address the same point. It is that the interviewers have a role in
identifying contamination, and that this was not done. The Crown's response
is that everyone was alive to the issue of contamination and took steps to
identify possible occurrences. It is certainly the case that the interviews
with the children were not the primary means by which contamination was
identified, but to expect them to be misunderstands the primary role of the
interviewer. 77. The
evidential interview is the child's primary evidence in chief. It may be
expanded upon at trial, as occurred in Ellis, but it is the main evidence.
The interview is conducted by persons trained in dealing with children and in
questioning them in ways that extract the information in an admissible way
and which also protect the child from further trauma. They also provide
insight into future treatment needs. The interview is the opportunity for the
child to tell his or her story. Cross-examination comes later. 78. That
said, it should not be thought that the interviewers were not alive to the
need to "test alternative hypotheses" as Dr Lamb describes it. To
understand what is meant by the idea of testing alternative hypotheses the
following extract from a book co-authored by Dr Lamb is illustrative of the
proposition: "In
addition to covering such required topics, interviewers must continually
monitor whether the child's reports are clear and unambiguous. The
questioning and clarification phase is the time to focus on testing alternative hypotheses about
the allegation. I. I need to ask you a question, but
first I need to make sure that you will understand. So I'm going to tell you
about my dog. He is this big, and he is black. What colour is my dog. C Black I How do you know that my dog is black? C Because you told me. I Okay. You told me that Sam took his
thing out and tried to rub it against you. Do you know that because you saw
it with your own eyes and you remember, or did someone tell you that Sam took
his thing out? C I remember. [Investigative
Interviews of Children. A guide for Helping Professionals. Debra A Poole,
Michael E Lamb, p142"] 79 The
Ellis interviewers did exactly what Dr Lamb counsels. Set out below are just
two examples. There are many more, and a fuller list is appended to these
submissions (Materials, volume 1, tab 11). They make the point very clearly
that these interviewers knew what they were doing. Of course one can debate whether
it should have been done more, but to assert the need for such testing is not
of itself to assert a proposition that represents anything novel, or anything
absent in the Ellis interviews:
"S .. and um alright so um now did anybody tell you to say that
stuff about Peter or did that really happen. N That really happened S That really happened N Yeah" (38)
Third Interview "S How do you know he would punch people N Don't know I just know S Is
that something you've seen or something that's happened to you before N Oh I just … S Just thinking he might N Yep." Page 19
80 The
issue of identifying contamination is, however, rather wider than just
considering what was asked in interviews. To consider just the interviews is
to ignore all the other information kept by the parents, obtained by the
"investigators", disclosed to the defence, and used as the basis in
the cross-examination. One need only look to the extensive cross-examination
at depositions of each of the parents to see the fruits of this information
gathering. 81 The
obtaining of this contamination information was not a matter of chance, first, the public meetings played a role in
advising parents to keep records. Further, the interviewers took a leading
role. See for example the trial testimony of Sue Sidey
as to what information she obtained from the parents (page 269) "the information supplied by the parents before I spoke to
the child would generally cover the statements the children have made and in
what context and it covers the responses to the statements and it covers any
other behavioural indicators and also I asked them questions about the poss.
Of any other life events explaining the indicators and it covers when they
first noticed changes, were they still going on. I also talked to them about
who the children's friends were at creche and who they were now and did they
have contact with other creche children. Some of the behavioural indicators,
some other indicators I would ask about would be physical indicators or
medical problems that may have arisen, what had been done about those, and I
would also cover the family names or child's names for body parts and any
other sort of family peculiarity I should know about should the children mention
it. In general those meetings with the parents, sometimes they would last
half an hour which is a long time, we usually keep them quite brief." 82 The
gathering of this information served two purposes: first, it informed the
interviewer, second, it was recorded and disclosed, ensuring the integrity of
the process. (iv) Once Contamination
Occurs, it is not Possible to Distinguish Fact from Fiction 83 This
assertion is one that is quite difficult in many ways to respond to. It is
hard to know what it means. It cannot be being suggested that one
illustration of contamination means that one has to walk away from the case,
such a counsel of perfection is in the end nothing more than an abuser's
charter. Very little research is ever cited in support of this assertion.
Some studies have taken interview situations where children are induced to
make mistakes, and then sought to see whether trained experts can sort out
fact from fiction. The apparent inability of these experts to do so is then
cited in support of the idea that one cannot distinguish. Such research
always seems to ignore the reality that the information available to the jury
is rather richer than in these artificial constructs where there is never
testimony from parents, never evidence or otherwise of opportunity, never
medical evidence in support and always never cross examination of the
children, let alone testimony from the accused. 84 In
theory there could be a case where the proved contamination is such that it
is not safe to allow a prosecution to proceed. It cannot be identified in
abstract; it is a matter of degree, just as Justice Williamson said. The
research gets nowhere near identifying a pre-determined level and it never
will. The process followed in Ellis, and in so many other cases of abuse,
remains the right one: 84.1 Give
early and repeated guidance to the non-professionals (eg
the parents); 84.2 Use
professionals where you can 84.3 Keep
good records and disclose what is known 84.4 Test
these very issues at depositions 84.5 Test
them again by way of pre-trial rulings, augmented by further evidence from
professionals. 84.6 Place
the evidence before the jury 84.7 Review
it on appeal 85 At
each stage (and one could add into this list a further stage, namely proper
exercise of prosecution discretion in charging) the original complaints and
disclosures have been identified, assessed, some made the basis of charges,
others weeded out and then the charges themselves also further weeded out. 86 At
the end of the day it is submitted that there have been no advances in mass
allegation learning and understanding that says this process is not valid and
cannot work. The Ellis case is an illustration of a proper process which, as
much as our system can ever say, did work. (v) Public Meetings? 87 One
final issue needs addressing. It is the question of whether the public
meetings were the right thing to do. The Crown's position is that at the time
they were, and that today they would still be used. The issue of public
meetings provides a further example of the Crown's other contention: there
has been no research undertaken into whether they are a good thing or bad
thing despite the fact that they are recognised as a common characteristic of
mass offending. And so one is left, as in all the other areas, to apply
experience to the issue. 88 The
89 The
public meetings served the purpose of presenting an opportunity to keep
parents informed, to allay fears, to limit rumour, to minimise contamination
risks, tand to advise parents generally on how to
deal with the children in a way that would minimise any (further) trauma. 90. In
the end it is difficult to suggest a better way to achieve this than the
public meeting. A 1993 article by Bybee and Mowbray
(Tab 12) examines community responses to day-care cases. Two of the issues
there discussed are the at times difficult relationships that develop between
investigators and parents and also publicity. It emerges that there are
balances to be struck - media attention can sensationalise but attempts to
suppress information can fuel rumour and "unofficial sources". Also
the need for the prosecution to be circumspect produces an unbalanced picture
in situations where the accused and his or her supporters have free reign in
a media anxious for coverage. Parents feel frustration that their side is not
being publicly advanced. None of this is of course unique to child sexual abuse, it is an ever present tension. But the use of a
public meeting to keep parents informed remains a balanced approach to one
aspect of the investigation. (3) Could the information
Available Today on Mass Allegations have Affected Justice Williamson's
Decisions? 91 In
one sense the question being asked of the Inquiry is this: if what is known
today about mass allegations had been available pre-trial, would or should
the charges have gone ahead? In order to answer this it is necessary to
traverse the pre-trial rulings so as to illustrate exactly what issues were
before His Honour back then. The Crown submission is that once one has an
awareness of these issues, the proposition that there is now a "mass
allegation" understanding that would charge Justice Williamson's
assessment completely fails. It fails for two reasons: 91.1 As
the Court of Appeal found, the underlying issues were well known and tested,
even if the label was not used, 91.2 As
already submitted, there is no new research into mass allegations that
advances matters significantly. 92 Ruling 1 (Page 2)
observes: "Pre-trial
applications in such cases must involve the manner in which the child or
children are to give evidence and often involve the admissibility of
videotaped interviews of the children. All counsel claim that this case is unique
because of the number of children involved; the manner in which the
allegations arose; the number and length of complainant interviews; and the
variety of charges. Certainly the depositions were lengthy. In order to
prepare for this hearing it has been necessary to view approximately 39 hours
of videotaped interviews and to read over 1000 ages of evidence as well as
examine numerous exhibits." 93 Ruling 2 (Page 1): "In
this application the Accused seek an order excluding the children's evidence.
It is argued that the children's evidence has been unfairly obtained or that
its prejudicial effect outweighs any probative value it may have. Very
detailed and thorough submissions have been presented in support of these
submissions. The main thrust of them is a contention that the procedures
followed in this case by the Police, the parents and the interviewers were so
wrong and oppressive that the resulting videotaped interviews and the
children's oral evidence should be excluded on the grounds of unfairness." 94 In
Ruling 2 His Honour accepts he has the discretion to rule out the evidence
and in effect stop the trial. The Crown's Court of Appeal submissions cited
at length from His Honour's summation of the accused's
arguments. The passage is long but given the exercise currently being
undertaken by the Inquiry, its repetition is necessary. The arguments
advanced to Justice Williamson were summarised by him in this way: "1 The manner in which the investigation
was initiated by the police and was presented to the parents of children of
the creche by way of a public meeting. In particular the way in which the
subject of sexual abuse and Peter Ellis were presented to the meeting which
made it clear that 'actual allegations' had been made but failed to advise the
parents the allegation was of an innocuous and nebulous nature. The impact of
the meeting was such that it generated a climate of fear about sexual abuse
without clarifying the concerns which had arisen and also portrayed Peter
Ellis as the abuser. 2. The direct and suggestive questioning
of children by their parents, despite being cautioned against doing so. The
direct questioning was specifically about Peter Ellis and specific alleged
acts. 3. The collating and sharing of
information between parents through support groups and the like which fuelled
the climate of fear and was then used by parents to directly question
children. 4. The manner in which the disclosure
interviews were conducted by DSW in particular by the use of direct and
suggestive questioning, multi-choice questioning, repeated questioning,
repeated interviews and the use of anatomically correct dolls." 95 The
Ruling's subsequent discussion of these issues reinforces the overwhelming
impression that everyone was very much alive to the concerns now advanced
under the "mass allegation" label.
Matters focused on include the public meetings, the questioning by
parents, the sharing of information, and the conduct of interviews. 96 Although
often overlooked the Ruling then continues to consider specific parts of the
videotape interviews which Justice Williamson had viewed, and to require
excisions 97 Ruling
4 "Children's
evidence in sexual abuse cases is often given by way of videotaped
interviews. Such a procedure has been permitted since 1989. During the
interviews children are spoken to and questioned in a relatively relaxed
setting by trained and supervised interviewers. Frequently there are toys,
books, papers, pencils or crayons available for the children who are
encouraged to talk as they play. 98 The
ruling then considers each count in the indictment. It should be noted, for
example, that the then Count 7 was by agreement discharged because based on a
disclosure from a blatantly leading question. 99 Also
in Ruling 4, under unfairness (page 13), His Honour addresses the impact of
sensationalised media reports, and the effect of widespread and emotional
community reactions. Included in the material he considered were (page 15) "A
summary of all news coverage of the charges in the form of a chronological
schedule, some particular news clippings, notes made by ▓▓▓▓▓▓
which have been distributed to some parents, and photographs of graffiti ▓▓▓▓▓▓ In addition I have viewed general
television coverage of the case against the Accused." 100 Of
interest His Honour notes (page 16) that in fact most of the recent publicity
was disparaging of the children's evidence, describing it as unreliable, his
assessment was that the publicity would probably have assisted Mr Ellis'
case. 101 Also
in the area of publicity, the comments on page 17 of the Ruling are relevant "The
third point made by counsel for the accused also has some strength but must
be balanced with widespread public knowledge of unsuccessful prosecutions or
public inquiries overseas which have resulted from hysteria or the actions of
hyper-vigilant parents. Events in 102 "In
support of these submissions counsel filed an affidavit by Dr Le Page, an
eminent Australian psychiatrist with specialist qualifications in child
sexual matters. There are a number of annexures to
his affidavit which contains articles about child sexual abuse interviewing
techniques and the well known inquiry in Cleveland as well as American and
Australian examples of such complaints by children attending pre-school
institutions." 103 The
various passages that have been cited reinforce the fact that from the outset
there was a consistent focus on contamination as a concern (4) Should the Jury have
Known More? 104 The
question can be asked whether it might have made a difference if the jury had
been told about the alleged mass allegation phenomenon. Even though all the
issues were in some way canvassed, might it have been significant if an
overarching context of "mass allegations" had been given to the
jury, and the jury had realised that there had been these other cases that
exhibited similar features. The response to this proposition has many
aspects. First, it can be asked what would it be
permissible to put before the jury. 104.1 It
is a surpising proposition to suggest that one
could tell a jury for example that in 104.2 Similarly,
even if the specific cases were instead generalised out to
"characteristics of mass allegations" (eg
the trigger event, growing anxiety etc), in the absence of proper reserch what is the legitimate relevance? It is not known
for example whether the children in the Kelly Michael case were actually
abused or not - all we know is that the interview process was so seriously
flawed the credibility of the claims cannot be tested. 104.3 In
the absence of any research that can legitimately ascribe different standards
of tests to mass allegations cases, one is limited to exploring with
witnesses the risks that arise in a particular mass allegation case. Parents
can be asked about their contact with other parents, and their children. Both
the parents and the children can be asked about the child's exposure to
publicity and to other complainants, the interviews can be scrutinised for
examples of the risks eventuating. As has been highlighted in two appeals
this was extensively done in the Ellis case. The parents were questioned by
the interviews prior to interview and these notes made available to the
defence. All involved were extensively cross-examined either at depositions
or trial. 105 Second,
although the label may not have been employed, the information was in fact
before the jury as much as the defence wanted it to be. To the extent that
the present Inquiry is a "then and now" exercise, it is necessary
to focus on what was known and available then. 105.1 Dr
Le Page testified for the defence. In an earlier affidavit he had annexed
reports or articles on Cleveland, as well as American and Australian
pre-school abuse cases (Williamson J, Ruling 2, page 6). He could therefore
have been asked about these to the extent permissible; 105.2 Any
consideration of the depositions shows a clear and heavy emphasis on
examining the parents about their contacts with other parents, and their
children again it could and was repeated at trial to the extent the defence
wanted; 105.3 What
was said and done at the two public meetings was carefully explored; 105.4 Annexure
3 to the Crown submissions at the Court of Appeal was a summary of
contamination evidence in relation to each child (Materials, volume 1, tab
13) 105.5 Included
in that summary is material that identifies the various "contamination
risks" in the sense of parent to parent contact, and information
sharing. The Crown's position on this, however, remains that a risk is not to
be equated with contamination. The fact that a parent knows information does
not matter if that information is not in fact communicated to the child. Part
of Mr Ellis' case at appeal was that the parents, probably understated what
they told their children, and one article/piece of research was cited in
support of the proposition that this is what happens. However, that cannot be
a basis on which the criminal justice system operates. There would need to be
a significantly compelling body of evidence and research required before it
can be said that a child's complaint should be excluded because we do not
believe the parent when they tell us what they told their children. Pre-trial
Justice Williamson said that: "This
exchange on information clearly occurred. The extent and significance of it,
however, does not appear to me to support the sinister picture drawn by
counsel." (Ruling 2, page 13). 106 It
is submitted this assessment remains as valid today as it was then. Even
accepting that the research establishes the existence of risks, it must
surely remain the case that there needs to be a case specific inquiry into
what actually happened and the research and risks assessed against that
factual reality. Here, the issues were known and addressed pre-trial, the
factual basis was placed before the jury and no doubt was emphasised by
counsel in summing up. The mass allegation risks were known; they are the
same today as they were then, the facts which would support a "mass
allegation hysteria claim" were before the jury. They made the final
assessment. There is nothing today which says the Inquiry should have a doubt
about that assessment.
107 This
part first considers the three remaining reports identified in the Schedule
to the Terms of Reference and also discusses some important new research
associated with the Memorandum of Good Practice. The second section then
considers some of the general issues that have surrounded the Ellis interviews.
It is our understanding that the Inquiry does not have as one of its tasks a
further examination of the interviews in themselves;
rather it is to consider the interviews in light of new understandings about
interviewing children in a mass allegation context. It will be no surprise by
now that the Crown position is that there is no such new understanding.
However, so as not to totally dismiss the issues, the second section reviews
some of these general issues that have been previously canvassed at the appeals.
The submissions seek to strike a balance between being self contained on the
one hand, and not unduly repeating all the Crown submissions on the topic
from the appeal hearing. Those submissions are available for the Inquiry. A The Schedule Reports (1) 108 The
paper is a discussion document which is aimed to be "an educational
one" (paragraph 3) Of some interest is the conclusion of paragraph 3: "In
fact a central theme of this paper is that, because of the complexity of
memory processes, each case and the reliability of a person's recall must be
assessed on an individual basis." 109 Of
particular relevance is presumably Chapter 4 on children's memories, which
summarises some of the research into children's memories, and suggestibilities 110 The
Paper is essentially informational and covers well known literature in the
area of children's memories. No section of it seems to be focussed
specifically on mass allegations. However to highlight some of the common
themes: 110.1 Children's
ability to recall and communicate develops with age. However even quite young
pre-school children form memories which are reliable and quite organised
compared to adults (106-109); 110.2 Young
children spontaneously recall less information than older children, and give
less detail; children may therefore need more assistance than adults to
recall (110-112); 110.3 It
is possible to reliably enhance accounts with more and more specific cues but
care must be taken with the method of such cuing (113); 110.4 The
use of anatomical dolls is controversial (118). 110.5 Children
have different narrative skills from adults and adults may differently
interpret the meaning. Different information should not therefore necessarily
be seens to represent unreliability (120-121); 110.6 Delay
has a greater impact on children than adults (123-124); 110.7 The
ability to resist the influence of external suggestion increases with age.
Various factors which can influence this are discussed (124-128); 110.8 Some
data indicates that children may also make errors of commission, but such
errors are generally minor (129-130) Comparison to Ellis 111 The
various observations in the Paper represent a fair summary of the literature
at a very general level. Focussed as they are on the memory development
research, they do not advance particularly the specific issues raised in the
Inquiry. More detail on memory development in children was addressed in the
various affidavits filed on appeal, and also in the Crown submissions. These
will not be repeated here but an important point needs making: 111.1 It
is crucial in considering the research to identify the age of the "Ellis
children". The literature generally identifies a significant distinction
between pre-school and school age children. Exactly what is covered by the tren "pre-school" is often unclear. Some talk
of three and four year olds, others of ages three to five and of course in some
North American contexts pre-school is less than six. Whatever, the reality is
that at the time of interview the conviction complainants in Ellis generally
fall outside this group. At paragraph 61 2 of the Crown submissions the ages
of the Ellis children are identified - at the time of first interview the
ages were five years six months (X2), 6 2 (x2), 6 6,
7 8, 8 11. Of course under 111.2 A
criticism that Dr Dalenburg made of the affidavits
filed on behalf of Mr Ellis was that they at times used research more
applicable to a younger age group. In the Crown's opinion, the validity of
this criticism was irrefutably established by the late affidavit filed from
Professor Bruck (filed for the first time at the
hearing). Professor Bruck had as information
sources only the appeal affidavits, her whole affidavit clearly proceeds on
an understanding that the applicable research is that of the younger age
group, even though the Ellis children were in fact generally outside that
group. The point was most starkly illustrated by paragraph 40 of her
affidavit where important research of Karen Saywitz
is dismissed by her as irrelevant. She observed: "(eg the children in the Saywitz
study were older 5-7 years - and only girls, whereas the ages of the children
in many of the others [ie studies] were younger, as
they wree in the Ellis case)" 112 Of
course the Saywitz age group is almost exactly that
of the Ellis children. (The particular study does not matter because it was
not suggested in the end that anatomical dolls were a feature of the Ellis
interviews). It is accepted in the research literature that pre-school/school
is an importanat division in terms of children's
memory and susceptibility. The Ellis complainants were school attendees when
interviewed, and of course older still at trial. (2) Memorandum of Good Practice 113 The
Memorandum sets out the various phases of an interview. As will be discussed
below the structure set out is more or less the same as provided for in the 113.1 The
main aim of this phase is to build up a rapport between the interviewer and
the child. It should also supplement the interviewer's knowledge about the
child's social, emotional and cognitive development Phase Two - Free
Narrative Account 113.2 This
phase is to allow the child to provide in his/her own words an account of the
relevant events 113.3 In
this phase the interviewer is instructed to use appropriate open-ended
prompts and should not include information known to the interviewer
concerning events which have not yet been mentioned by the child. Phase Three -
Questioning 113.4 The
first stage involves open-ended questions which ask the child to provide more
information. The child should know that the reply "I can't
remember" is acceptable. 113.5 The
second stage allows for extension and clarification of previously provided
information from both the free narrative and subsequent phase. 113.6 If
inconsistencies have occurred these should be gently probed at this stage of
the questioning. 113.7 If
specific but non-leading questions are unproductive closed questions might be
asked. 113.8 At
the end of this stage the interviewer may conclude that further questioning
is necessary and leading questions may be necessary. The guidelines stress
that it must be understood that a leading style of questions may produce repliues that are excluded from criminal proceedings (as
for example with Count 7 in pre-trial Ruling 4) 113.9 The
guidelines also stress that great care must be taken if leading questions are
used and if new information arises out of a leading question the interviewer
should revert to the "neutral mode" of questioning. Phase Four -
Closing Interview 114 The
Memorandum was promulgated in 1992 "to help those making a video
recording of an interview with a child witness where it is intended that the
result should be acceptable in criminal proceedings" 115 There
has recently been published a paper by the Home Office entitled
"Interviewing Child Witnesses under the Memorandum of Good Practice. A
Research Review" (1999). It provided a valuable summary of lessons
learned from effectively 5-6 years of applying the basic document. (Tab 14) 116 The
research addresses each phase of the Memorandum, notes criticisms and
positive features, and makes recommendations. Little would be gained by an
over extensive repetition of those conclusions. However, some matters worth
particular highlighting include 116.1 Chapter
2 provides an overview of research growth since the Memorandum. It summarises
the consensus among researchers on free recall as being 116.1.1 The
quantity of children's free recall increases with age, 116.1.2 Free
recall is generally very accurate, 116.1.3 The
accuracy of reports do not vary with age, 116.1.4 The
omission of details is much more common than the invention of false ones. 117 On
prompted recall the equivalent principles are 117.1 Under
suggestibility it is noted that it is young children below the age of six who
are particularly prone to incorrect responding under certain circumstances
(page 9), 117.2 In
the context of multiple interviews which were a feature of some of the
children in the Ellis case, at page 14 there is a helpful list of factors
that have emerged. These factors emphasise that all children are different
and disclosure patterns will vary. 117.3 Some
consideration of new techniques is undertaken, including reference to the
"semi-scripted" technique advocated by Dr Lamb and referred to in
his affidavit on the appeal. It is noted that it is promising but may need to
counter criticisms of inflexibility and insufficient initiative for the
interview (pages 26-27) Application to the Ellis Case 118 The
recent Memorandum research is a particularly balanced summary of developments
in the central areas at issue in Ellis. On the question of the interviews
generally, the clear impression to be obtained is one of on-going development
and understanding but nothing that suggests dramatic insights. One would not
expect things to be the same today as 10 years ago, but nor would one expect
significant differences. It is a process of gradual evolution which does not
suggest things today would be done significantly differently from the Ellis
interviews. 119 Second,
the research, as with the Memorandum, is silent on the mass allegation issue.
In terms of the Inquiry's focus, this along with the other Reports, it does
not reveal the existence of a specific mass allegation blueprint. 120 A
final observation is that one needs to place all these Guidelines into
context. They represent recommendations for an interview which is designed to
maximise the safety and admissibility of the interview. They are not absolute
in that they do not say, for example, to never ask a leading question. In a
Court case the issues become one of assessing whether there have been
departures, and whether any departures require excision or more unusually
full rejection of the evidence. (3) Joint CYFPA/Police Guidelines 121 The
scope of the guidelines is clear from the face of the document. Unlike the
Memorandum of Good Practice, the New Zealand Guidelines address both
diagnostic and evidential interviewing. (The Terms of Reference refere to 1997 Guidelines but the Crown's understanding
is that the last version is June 1996) 122 Picking
up on some of the themes emerging from the other Reports listed in the
Schedule, the Guidelines have some immediately positive features: they
represent a comprehensive set of principles and guidelines for the whole
process, they reveal the clear understanding that has always existed
concerning the role and purposes of different types of interview; they
represent a continued co-operative approach between Police and Child Support
Services Interviewing Principles 123 The
following principles emerge 123.1 Approach
the interview with an open mind - the child or young person may have nothing
to tell or they may not be ready to talk about what has happened to them. 123.2 Provide
sufficient structure and direction to help the child or young person to
co-operate and feel unthreatened. 123.3 Conduct
the interview in a confident, straightforward and respectful way to minimise
the child or young person's anxiety. 123.4 Communicate
in vocabulary and sentence structure that is appropriate to the child or
young person's age, developmental level and cultural background. 123.5 Encourage
the child or young person to give as much information as possible in their
own words and follow the pace and direction of their narrative, 123.6 Ask
open-ended, non-leading questions wherever possible [see Appendix 2 of Report
for examples] 123.7 Set
a clear context for the questions asked and respond
to what the child or young person says to avoid confusing them - avoid out of
context questioning. 123.8 Help
them to put a structure to their account, such as a beginning, middle and end
to the incident 123.9 Check
and clarify their responses to avoid assumptions and ambiguity. 123.10 Be
attentive to the child or young person's reasons for distracting, non
compliant or regressive behaviours and assess how to respond appropriately. 123.11 Be
aware of your own body langiage, voice tone,
gestures, verbal responses and their potential messages to the child or young
person. 123.12 Keep
the interview to a reasonable length (45-60 minutes) unless there are good
reasons to continue longer (eg the child or young
person is in the middle of a disclosure) 124 Be
aware that the child or young person may 124.1 Feel
guilty 124.2 Be
ready to blame others 124.3 Feel
that they are in trouble 124.4 Be
sexually reactive 124.5 Fear
the interviewer's reaction. Types of
Questions 125 The
following table explains and gives examples of the main types of questions
Number and
Duration of Interviews 126 The
interviewer should only conduct one evidential interview. Special
circumstances may require more than one interview. If more than one interview
is required, they should be kept to a minimum. 127 An
evidential or diagnostic interview should last no longer than 90 minutes,
unless special circumstances exist. Guidelines 128 Most
interviews take 30-60 minutes. An interview may take longer or another
interview may be needed in special circumstances where, for instance 128.1 The
child or young person 128.1.1 Becomes
tired or distressed and is unable to complete the interview 128.1.2 Discloses
late in the interview and is willing to undertake a further interview 128.1.3 Spontaneously
reveals further information outside the interview 128.1.4 Has
special needs, eg an interpreter or technical aid
to communicate, 128.1.5 Gives
new information indicating a more serious offence, or 128.2 Equipment
fails, or 128.3 Other
considerations arise following consultation with the investigating team 129 The
interviewer may conduct up to three diagnostic interviews 130 It
may be appropriate to conduct a second evidential interview where serious
information comes to notice, ie a more serious
offence or risk issues. If this occurs consult your supervisor. Be aware that
a Court may order a second interview. Structure of the
Interview (Evidential)
Observations 131 The
number of interviews with some children has at times been raised as an issue.
As the guidelines make clear, there needs to be first drawn a distinction
between diagnostic and evidential interviews. Most guidelines recognise that
multiple diagnostic interviews may occur and the New Zealand Guidelines refer
to a possibility of 3. With the Ellis complainants who became the subject of
conviction verdicts, diagnostic interviews were not a significant feature. It
is clear that with some complainants, there were more evidential interviews
than is generally seen as desirable. It is important, however, to emphasis the
reasons for such interviews, they were a product of fresh disclosures and
therefore sourced in the child. This can be contrasted with, for example,
Orkney where the impetus often came from the interviewer or relevant social
authority. Most research counsels against revisiting previous disclosures,
this is not what happened with the Ellis interviews where, as noted, the
impetus was fresh disclosure by the child. 132 Other
than the introductory comments there is little to add. It is submitted that
the Guidelines represent a comprehensive approach to the task and reveal
organisations that are committed to doing the task in a way that is
acceptable for the Court process and attentive to the child's needs. They are
detailed and thorough and represent a continuation of the professionalism
that it is plain has characterised the B The Ellis Case Interviews 132 Throughout
the course of the Ellis proceedings the interviews have been extensively
scrutinised. It does not appear that the Terms of Reference are asking the
Inquiry to simply repeat this exercise a further time. Rather the issue is 132.1 Having
scrutinised the reports and memoranda listed in the Schedule, identify the
processes, practices and procedures currently accepted internationally as
best practice for interviewing children in these cases (ie
mass allegation) 132.2 Assess
whether the interviews of children were conducted in accordance with best
practice as now understood 132.3 If
the Inquiry concludes the interviews were not conducted in accordance with
best practice, identify the nature and extent of any risks which arise, which
might affect the assessment of the reliability of the children's evidence. 133 The
governing provision is the identification of currently accepted best practice
rules for interviewing children in mass allegation cases 134 The
difficulty for the Inquiry is that no such best practice exists. As submitted
on several occasions already, there has been no consideration of mass
allegation interviews as a separate phenomenon. To a large extent that is
determinative of the Inquiry's task. But in order to provide as much
assistance as possible these submissions revisit some of the issues covered
in the last appeal concerning interviewing technique generally. The structure
is: 134.1 Specific
consideration of two overseas mass allegation interview situations and
accompanying research 134.2 Discussion
of Dr Lamb's analysis of the Ellis interviews; 134.3 Discussion
of some of the other criticisms of the Ellis interviews and consideration of
recent writings.
(a) State
v Michaels (1994) 842 A 2d 1372 ( 135 This
case is one of the most frequently cited in the area. In it the New Jersey
Supreme Court established a "taint hearing" procedure whereby the
prosecution would have to establish pre-trial the reliability of children's
pre-trial statements. Michaels was charged with numerous offences against
children at the "We Care Day Nursery". She was convicted at trial
but these convictions were overturned on appeal. On further appeal the
Supreme Court established the taint hearing procedure . 136 The
report of the case is helpful because it includes extracts from the
interviews. A perusal of these extracts suggests, it is submitted, that again
the case bears much more similarities to the Seabeach
Kindergarten case from the New South Wales Report than it does to what
happened in the Ellis case. From page 1379 ff the Court identifies the
following concerns: 136.1 Few,
if any, of the children volunteered information that directly implicated
Michaels 136.2 None
of the children related incidents of actual sexual abuse under the free
recall stage; 136.3 Few
of the children were able to provide detail in support 136.4 The
investigators were not trained 136.5 The
earliest interviews were not recorded; in some cases the original notes were
destroyed; 136.6 Many
of the interviewers demonstrated ineptness in dealing with the challenges
presented by pre-schoolers, 136.7 Many
of the interviewers displayed their frustration with the children; 136.8 Almost
all of the interrogations revealed an obvious lack of impartiality 136.9 The
interviewers failed to pursue any alternative hypothesis 136.10 the
interviewers failed to challenge or probe seemingly outlandish statements; 136.11 29
of the 34 children were asked questions strongly suggesting that perverse
sexual acts had in fact occurred; 136.12 The
record of the interviews discloses the use of mild threats, cajoling and
bribing; 136.13 Throughout
the interviews there was a clear element of vilification of the accused; 136.14 No
effort was made to avoid outside information that could influence and affect
the recollection of the children. 137 As
a package this case is simply nothing like the professional job done in the
Ellis case. It must be repeated that just because there have been serious
flaws in other inquiries, one should not have doubts about the Ellis case. (b) 138 As
noted elsewhere, Garven et al conducted an analysis
of the interviews that took place in the McMartin
Pre-School Case (Tab 4). In that case seven teachers had been accused of mass
abuse of several hundred children. No-one was ever convicted and most charges
were dropped without trial. 139 Garven et al identified various technique errors from the
interviews and combined them into one exercise to assess what impact
"the package" might have. There does not seem to be a suggestion
that any actual complainant was so exposed. The research identifies mistakes
from the interviews this way. The examples are actual examples from the
interviews. "(a) Suggestive
questions Q Who
played that game? A Ray
and Miss Peggy Q Did
Miss Peggy take her clothes off? A Yeah Q Did
she have big boobs? A Yeah Q Did
they swing around? A Yeah" Prior to this exchange no mention of nudity had
arisen. (b) Other people. This involves telling the children that
others have already provided information about the subject of the interview.
It carries an obvious risk of creating pressure to conform, eg "We know about the game. 20 kids have told us
about that game do you think if I ask
you, you might remember" (c) Positive
and Negative Consequences. You are going to help all these little children
because you're so smart (d) Asked
and answered. Not accepting an answer. Q Can
you remember the naked pictures? A (Shakes
head "no") Q Can't
remember that part? A (Shakes
head) Q why
don't you think about that for a while okay? Your memory might come back to
you (e) Inviting
speculation (self-explanatory). 140 Having
identified these errors the research constructs a short role play followed by
an interview which employs these techniques in relation to some true and
false statements. Quite a high error rate was achieved. 141 The
point to be made in response is that it is not a piece of mass allegation
research that offers much assistance. Some might find it helpful in the messages
it suggests concerning children's suggestibility, but it is not an exercise
one will find repeated in any one of the Ellis interviews. Probably across
whole range of interviews less extreme examples of each problem may be found.
But, as one would expect with the calibre and training of the Ellis
interviewers, no-one has suggested this type of package can be found in a
single interview or even as regards a particular complainant. (2) Dr Lamb's Research 142 This
research is cited at this point because it assists to establish a basic
starting point: the Ellis interviews were overall good interviews. In
assessing how there have been improvements in understanding throughout the
90's, it is important to recognise that in the case of Ellis the new understandings must be applied to essentially sound
interviews. 143 Dr
Lamb compared the Ellis interviews to similar interviews conducted throughout
the world at that time. The chart below summarises the percentage of
information obtained by various types of questions. In terms of all the
Guidelines, it is his "suggestive" questions that represent the
most concerning style (called "leading" elsewhere)
144 Some
caveats and explanations are necessary 144.1 The
two right hand columns are modern interview technique results using the Lamb
"semi-scripted" model (as discussed in the Memorandum of Good Practice
Research already noted (Tab 14, page 26-27)). The four left hand columns are
interviews conducted at the same time as Ellis. " 144.2 Dr
Lamb defines "leading" in his own way, and notes that Courts would
not necessarily call these questions leading. What he terms
"suggestive" questions is what Courts would call leading "utterances that strongly communicate
what response is expected, or assumes details that have not been revealed by
the child" (paragraph 51); 144.3 Exactly
which Ellis interviews are analysed by Dr Lamb is not clear. From paragraph
5.1 of his affifdavit it would seem to be all the
interviews, whether shown to the jury or not, of the six complainants under
appeal, plus 145 Looking
then at the chart and focussing on the key issue of the information obtained
by the interviewers from suggestive questioning, some telling figures
emerge 145.1 Compared
to their contemporaries, the Ellis interviews extracted only 7% of the
information this way. That is, across all these interviews and combining both
core allegations and detail, and covering the conduct that is the subject of
charges, and all the other so called bizarre or fantastical allegations, only
7% of this information was obtained from the worse type of questioning. 145.2 At
the same time, the contemporaries of the Ellis interviewers obtained 9%, 11%
and 19% respectively from such questions. 145.3 Looking
at the two right hand columns which are the modern Lamb script interviews,
one group do marginally better at 5% and another group did worse than anyone
at 22% 146 It
is suggested that this information is crucial to any assessment of the
reliability of the children's evidence. If the proposition advanced is that
we can now say with imp[roved research how bad the
Ellis interviewers did, the reality is that they did not do badly at all. If
the quality of the interviewing is said to be a major reason for granting a
pardon, this chart would seem to give lie to that proposition. 147 There
are many other observations possible from the two charts; for example the New
Zealand style seems to be to use facilitators (recorded in interviews as
"uh-uh", "mm" and "go on" etc) rather than full
open questions. However, when one looks at it, the conclusions are the same. 147.1 As
a style of interviewing (Chart M), the Ellis interviewers were comparable to
their contemporaries but not quite as good as the 1999 scripted interviews 147.2 As
a source of information (Chart N above), the Ellis interviews were better
than their contemporaries in terms of least information obtained from
suggestive questioning, and pretty much as good as the 1999 scripted
interviews. Even combining leading and suggestive together, the Ellis
interviews are not noticeably worse or better than their contemporaries. 148 Concerning
Dr Lamb's new interview technique, it should be noted it is discussed in the
Memorandum of Good Practice Research at page 26. It is noted that it is
promising but that some significant caveats exist (This again highlights the
point that the research is developmental and on-going; it is not in a
position where one can say there is a settled view) (3) Interviewing Generally 149 There
has been considerable research conducted in the 1990's. It has served to
confirm that there are risks involved in interviewing children, and that
certain techniques increase or minimise those risks. The research has
informed the development of guidelines as those found today in 150 However,
it is difficult to see that the identified risks are any different in nature
from those known at the time of the Ellis case. A stark illustration of this
is provided by the cross-examination of Sue Sidey
at depositions (page 26/33) where 12 propositions, seemingly taken from the
Cleveland Report, are put to her for response. As noted earlier Dr Le Page
and Dr Zelas were also available to be questioned on these aspects. 151 The
inquiry is respectfully referred to the Crown's submissions on the appeal
where individual topics are addressed. What follows is a highlighting of some
of these points, reinforced by references to new research and writings. 152. It
is wrong to believe that research has suddenly reached a point where there is
universal agreement. Quantifying the risks is still very much an area of
dispute; where the trade-off can be drawn between obtaining no information
and obtaining information with a risk of some inaccuracy is still in dispute;
what the effects are of testing children to see if they adhere to the initial
falsity is in dispute. There are many other areas. It is a false picture to
suggest that a united body of opinion would now look at the Ellis interviews
with similar eyes. 153 Two
pieces of very different writing make this point and are included in the materials.
The first is a 1999 Cornell Law Review article by Thomas Lyon, who was one of
the Crown's nominated experts. (Tab 16). In it he critiques what he calls the
"new way" of suggestibility research. His three primary criticisms
reflect the tenor of what the Crown submitted at the appeal. 153.1.1 The
new wave researches assume that highly suggestive interviewing techniques are
the norm in an abuse investigation when there is little empirical evidence to
support this view; 153.1.2 The
research neglects the characteristics of child sexual abuse that make both
false allegations less likely and which increase the need to guard against a
failure to detect abuse when it has occurred. 153.1.3 The
researchers apparently value-free scientific treatment of suggestibility
issues obscures value judgments that must be made over the trade-off between
false allegations and false denials. 154 Aspects
of this article reflect what Dr Dalenberg claimed:
that there is a tendency in critics to exaggerate the bad aspects and the
mistakes children make without ever acknowledging that there are aspects of
the research that make it likely the children are reliable. Two examples: 154.1 The
bulk of the research shows that errors of omission are much more likely than
commission. In a case such as Ellis this is very significant, it means that
mistakes are usually more often made in relation to detail than core
allegations, and especially in school age children it is much harder to
establish false memories of the whole event; 154.2 An
issue that exists is whether children will adhere to false stories when
challenged. This has obvious significance for the trial process where a child
is cross-examined. Garven et al (Tab 4) in a recent
piece of research began to explore this (Tab 17). They implanted false
memories by three different techniques - simple, reinforcement (repeated
suggestion) and co-witness (tell the child someone else saw it as well). They
then challenged the false memory. Although they highlight that in the
reinforcement group, over 30% still adhered to their story in the face of
quite mild challenge, it is of considerable significance that in the simple
group only 3.5% adhered to their false memory. If mild challenge effected this outcome what effect then might more
extensive cross-examination have? 155 A
further major reservation the Crown has always had concerns any attempt to
directly apply the research to a specific case, and to then suggest it
mandates a particular outcome. The problems with doing this are: 155.1 The
research childrenare not traumatised and the events
they are being questioned on are usually quite trivial. For obvious ethical
reasons there is very little research that seeks to see if false memories of
truly traumatic events can be created; nor if initially created to what
extent would they be sustained. There is no general
acceptance that this non-trauma research is directly applicable to traumatised
children and trauma memories; 155.2 There
is so much of the context of a trial that is not replicated in the research
interviews (eg parent's testimony, opportunity,
medical evidence, accused's testimony, demeanour,
previous conduct of child); 155.3 The
research cannot replicate a jury's task, or prior to that, the Judge's.
Someone must look at the interview, consider the questions and answers, and
form an assessment on that child's reliability and suggestibility. It is
impossible to get away from the reality that not all children are the same
and each will read differently. 157 The
second piece of research (the first is 158 One
final point on this research generally. It is important research when used
properly such as in the development of Guidelines. However, it is not a
"hard science" in any real sense of that concept. The subject of
the research varies as much as each person as an individual varies from
another. We simply cannot say that because a technique had a particular
effect on one child, it will have had the same effect on another. In terms of
revisiting past trials, it is quite different from, for example, DNA where a
shift in science and technique can allow us to positively exclude a
previously inculpated person. (4) Conclusion on Interviews 159 The
Ellis interviews were a good illustration of interviewing. Nothing exists
today which merits re-assessment. There is no research that mass allegations
require a different technique. No new risks have emerged, and the previously
known risks cannot be differently or better quantified. Continuing research
gives improved understanding, but it is not the type of research that
supports a re-evaluation of interviews previously thought sound.
159 The
introductory paragraph of the Terms of Reference require the Inquiry to
report: "On whether there are any such matters which
give rise to doubts about the assessment of the children's evidence to an
extent which would render the convictions of Peter Hugh McGregor Ellis unsafe
and warrant the grant of a pardon" 159 The
effects of a pardon were discussed in the context of the Court proceedings
which followed the Thomas Royal Commission [1980] 1 NZLR 602, 616-621 and
[1982] 1 NZLR 252, 273-276. The preceding submissions advance the proposition
that there is nothing in the current state of understanding about "mass
allegations" that should cause the Inquiry to recommend a pardon. Unless
the view be taken that no mass allegation conviction is ever safe, it is
submitted there is no basis in the conduct of the investigation, in the Court
process or in subsequent research for doubts to arise about Mr Ellis'
convictions. Any comparison with overseas cases only serves to highlight that
the Ellis case was well managed from the outset, and that at all stages the
concerns which can accompany mass allegation cases were known and explored.
As always a balance is required on the one hand, it is important to recognise
that the existence of several or many complainants will exacerbate the
dangers presented by known risks, on the other it is important not to attach
to the label "mass allegation" a life of its own. A mass allegation
case remains in its fundamentals a criminal prosecution to which the normal
rules and processes should apply. It is submitted that the Ellis case
established the appropriate balance better than any model placed before the
Inquiry, and at a level which raises no doubts about the safety of the
convictions.
DATED at Simon France Crown Counsel |
