Section Ten
Discussion – consequences
Contents:
(10) Discussion - consequences
(10.1) Treatment of the other accused childcare
workers
(10.2) Psychological science and
forensic interviewing system
(10.3) Psychological science
and forensic interviewing individuals
(10.4) Other sexual abuse workers
(10.5) Appointment of expert
witnesses
(10.6) The 1989 Evidence Act
amendments
(10.7) The terms of reference –
Civic Child Care Centre layout
(10.8) The statute of limitations
(10.9) Eichelbaum
(10.10) Other documents for review
(10.11) Overturning the
convictions
(10.12) Ministry of Justice
failures
(10.13) Why did the legal appeals fail?
(10.14) History of Injustices
(10.15) The Unfair Dismissal claim
(10.16) Improving the Safety Net
(10.17) Final note
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(10) Discussion –
consequences
The Judge shall not instruct the jury on the need to scrutinise the evidence of
young children generally with special care nor suggest to the jury that young
children generally have tendencies to invention or distortion.
Evidence Act, Section 23h (c)
If my conclusions are generally valid then many important issues of public
concern are raised. Areas of concern include the granting of qualifications,
appointment systems and issues of professional discipline and accountability.
When viewed in the light of this investigation Barry Kirkwood’s assessment
(section 8.1) of a "massive system failure" and of a "cargo cult
mentality" does not seem far fetched.
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(10.1) Treatment
of the other accused childcare
workers
It is worth bearing in mind that there were very serious consequences to
the lives of all the other civic childcare workers, especially the others who
faced very similar charges to those against Ellis, based on exactly the same
kind of evidence. They may have only just escaped trial and possible
convictions not because the prosecutors, police and judge thought them
innocent, but because the jury may have been seen as not likely to be convinced
of their guilt, or some other reason. After all, they were well-presented,
well-organised, assertive women. If this is so, the manner in which they were
formally accused merits examination by a royal commission
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(10.2) Psychological science and forensic
interviewing system
It is not at all clear that the interviewing of young children in these
cases has sufficiently improved since the Ellis trial.
Mike Corballis (2003) comments
"In our universities, there is …a strong tradition of…research…which
[is] directly relevant to the Ellis case. This work seldom features at [NZ
Psychological] society meetings, and may not be widely known to the judiciary
or to the public"
Frequent attempts by the writer to talk to any psychologist/s who may
advise CYPS on interviewing techniques have failed. In effect, apart from some
unscientific comment in regard to current interviewing protocols (which was
supplied by a social worker), I have encountered a wall of silence. No
explanation for this has been offered by CYPS.
It would seem better in future to ensure that university based scientific
researchers such as Maryanne Garry (Victoria), Mel Pipe and Harlene Hayne
(Otago), or Barry Parsonson (ex-Waikato) are providing an input. Currently, the
Psychological Society is clearly not a reliable resource. The Ministry of
Health (which provides reliable medical advice to the public and others on
medical matters) could perhaps act in an advisory capacity.
Faust and Ziskin (1988) suggest that
"certifying bodies could conduct objective evaluation of the clinician’s
[presumably also scientist’s] performance on a representative sample of cases
that can be verified against objective data."
They conclude with a warning,
"The courts, having learned to distrust clinicians’ claims, may refuse
to admit testimony based on truly useful knowledge and methods despite more
than adequate supportive studies."
It is important to ensure that psychologists, interviewers, police and
judges have an openly discussed and publicly acceptable policy that describes
their position on the balance between necessary care taken to avoid false
conviction, and on allowing too many false acquittals. Whilst the Ellis case
represents one extreme, there are examples of the other extreme.
"[i]t i s more desirable that a thousand children in abuse situations
are not discovered than it is for one innocent person to be convicted
wrongly" and that "[p]aedophiles can boldly and courageously
affirm what they choose."
Another example, closer to home, from the Reekie rape case (in which Dougherty
was at first convicted, then had his conviction overturned). Some of the police
were reported to have thought at one stage that the victim may have been making
most of her story up.
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(10.3) Psychological science and
forensic interviewing individuals
Karen Zelas (who is a psychiatrist, but has had a major role in the case)
appears to have displayed a reckless disregard for poor interviewing
techniques. She states (personal correspondence November 2002) that
"I happened to provide external clinical supervision for the DSW
evidential interviewers. This meant that they attended me on a regular basis to
discuss and review their work… Responsibility for their work rested with
DSW…not with me."
The latter part of this statement could be regarded as an attempt to escape
personal responsibility for a poor job for which she should be able to accept
responsibility, and assumedly, for which she was well paid.
CYPS might like to take a look at Zelas’s work on this and other cases
including the Wellington Geoff Scott one.
Cathy Crawford seems to have performed particularly badly as an
interviewer
Lynda Morgan has changed name to Libeau and apparently still works for
CYPS.
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(10.4) Other sexual abuse workers
Rosemary Smart wrote a report for the Christchurch City Council that
appears to be full of pseudo-science. The report was very damaging to the Civic
childcare centre. It has been alraedy discussed (in Sections 1.4 and 1.5), and
it played a part in the closure of the centre. Smart’s work may need to be
further scrutinised.
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(10.5) Appointment of expert witnesses
Again, as the forgoing stated, it is important to consult university
scientists, as distinct from those who are only clinical practitioners. The
ideal premise that all experts ought to be impartial seems to have broken down,
with clinicians being pitted against sceptical scientists, and with little
consequent room for agreement. An example of this might be the scientifically
based Parsonson report being perhaps outweighed by American Psychologist
Constance Dahlenberg, who it seems appeared in person at the second appeal.
Parsonson has published relevant research in well-recognised scientific
journals. The credentials of Dahlenberg need looking at by any future inquiry.
If a higher standard of scientific standing is demanded of expert witnesses,
then more convergent and impartial findings may be achieved between expert
witnesses. The current level of disagreement is unacceptable, and if it cannot
be improved, consideration would have to be given towards not allowing psychologists
to appear as expert witnesses.
Corballis (2003) gives some reassurance
"The problem is not to eliminate psychological testimony, but rather to
separate…good science from bad science. This is something that universities do
all the time, in hiring (and firing), in promotion and in awarding research
grants. University academics know which journals publish reputable research and
which do not…consensus can usually be found."
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(10.6) The 1989 Evidence Act amendments
Clauses in the Evidence Amendment Act 1989 included
Section 23 g:
[Expert witnesses are allowed to testify on matters that include...] (c)
Whether any evidence given during the proceedings by any person... relating to
the complainant's behaviour is, from the expert witness's personal experience
or from his or her knowledge of the professional literature, consistent or
inconsistent with the behaviour of sexually abused children of the same age
group as the complainant.
Also Section 23 h (c):
(c) the Judge shall not instruct the jury on the need to scrutinise the
evidence of young children generally with special care nor suggest to the jury
that young children generally have tendencies to invention or distortion.
Attention needs to be given towards repealing sections 23G and 23H of the
Evidence Act. Section 23G allows prosecution expert witnesses to describe
certain behaviours, such as bedwetting, as being "consistent with sexual
abuse". This analysis has shown that this has the potential to mislead
jurors. Section 23H appears to almost recklessly disregard known research data
about child suggestibility and memory..
Hood discusses the effect of the 1989 amendment to the Evidence Act. On page
545 Hood writes,
"In a 1990 judgement on the admissibility of muddled videotape
disclosures elicited by prolonged and probing questioning, the Court of Appeal
ruled that the purpose of the new legislation was ‘to ensure that the old
technicalities of evidence…even the contents of evidence in matters such as
hearsay shall not necessarily prevail.’".
She then continued that the court ruled
"...that evidence as to whether a child’s behaviour was consistent or
inconsistent with that of sexually abused children of the same age ‘will usually
be especially important in assisting the jury to evaluate the truth of the
complainant’s evidence.’"
Sim (2002) has pointed out that this abuse of logic is sanctioned by
section 23G added to the Evidence Act in 1989. On page 6 of her report, she states,
"the expert witness may express on opinion on whether any evidence
relating to the complainant’s behaviour is consistent or inconsistent with the
behaviour of sexually abused children of the same age group."
Scientists do use consistency tests to see if a model of behaviour can
explain all the available relevant data. These tests seem to be confused in the
minds of our law-makers with tests that determine the probability that an event
actually occurred, given certain conditions. In addition, the law-makers are
incorrect if they have assumed that any particular type or types of behaviour
have been proved to be a reliable indicator that abuse has occurred. This
viewpoint seems to be commonplace and persists, a recent example being in April
2000 when Judge Doherty stated in a sentencing address that a child showed
"classic symptoms of serious sexual abuse" (Christchurch Press,
It bears restating that serious consideration will need to be given towards
amending this Act again. Compulsory warnings about the unreliability of
children’s testimony should be required from judges addressing juries. Unless
suitably qualified psychologists can be found to address the court about the
conditions affecting the reliability of children’s testimony, none should be
allowed to give evidence. Expert psychologists should have carried out
practical research in the area and have published it in reputable scientific
journals.
If our courts have abandoned the correct use of evidence and standards of proof
in sexual abuse cases, then in my opinion the courts are of little use to our
society in determining these cases.
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(10.7) The terms of reference – Civic
Child Care Centre layout
Gaye Davidson was able to provide a sketch of the layout for this report,
and photos of the centre are currently available. Some convictions are based on
children alleging that abuse occurred outside the toilets. This is highly
unlikely. In the 1999 appeal it was argued by Ellis’s counsel that the
non-disclosure of the photographs was one factor in an unfair trial. It is
inexplicable in the light of Davies’ and Parsonson’s (1999b) comments, that
Eichelbaum and his two experts were not furnished with both plans and
photographs.
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(10.8) The statute of limitations
Prior to the Ellis case, the statute of limitations was lifted allowing
historical cases of sexual abuse to come to trial. There have been several
where the alleged events were said to have occurred over twenty years prior to
litigation. Where the only evidence is one person’s verbal memories that were
"recovered" during therapy long after the alleged event, it is
questionable that their allegations should be considered reliable enough to put
to a legal trial. Their argument is weakened by not speaking up at the time,
whatever reasons they provide for not doing so. The Ellis case was one in which
a number of children "recovered" their memories of abuse long after
the time of the alleged events, and had been subject to therapy, and parental
questioning, etc before their allegations were made. Loftus (1993) states:
Statutes of limitations, which force plaintiffs to initiate claims promptly,
exist for good reason: …They exist in recognition that with the passage of
time, memories fade and evidence becomes more difficult to obtain…When much
time has passed, defendants find it hard to mount an effective defence.
In this connection, it appears to me that as Loftus is a recognised world
authority on memory, we were precipitate in lifting these limitations without
proper scientific evidence to support the change, and in the face of strong
scientific evidence to the contrary.
A writer in the Economist,
"The rules of evidence are there for good reasons. They have been
established over the centuries to protect innocent people from imprisonment.
The same is true of statutes of limitation. Natural though it is for
legislators to wish to hunt down sex offenders, there is no justification for
doing so in a way such as this, which is liable to result in unsafe and unjust
convictions. The recovered-memory bandwagon needs to be trundled sharply out of
the courts that have been unwise enough to let it in."
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(10.9) Eichelbaum
There is a clear point that flows from my conclusions that the remaining
Ellis convictions are not safe; that there are deficiencies in the Eichelbaum
report that led him toward the wrong conclusion.
Corballis (2003) has noted, "It seems extraordinary that no department
of psychology in this country was consulted over the provision of expertise in
the Eichelbaum [report], or even…in the original trial."
With hindsight, it would have been better to
appoint someone with better knowledge of science than Eichelbaum, and better
able to know the difference between the advocacy approach of Louise Sas and a
real scientist. In the terms of reference, he could have been compelled to
consult two heads of psychology departments.
I would like to see Parliament pass a vote of no confidence in the Eichelbaum
report.
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(10.10) Other documents for review
In 1999 a petition prepared by Ellis’s lawyer, Ablett Kerr, was referred to
Sir Thomas Thorp. Later that year the case was referred to the court of Appeal
for the second time. Ablett Kerr produced affidavits from psychologists Barry
Parsonson, Dr Lamb (from the
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(10.11) Overturning the convictions
Law changes may be necessary to avoid a repetition of mistakes made
throughout the course of this case.
It is likely to still take some time to clear Ellis’s name. Newbold (2000 p243)
states,
"once a person is convicted of an offence, undoing the conviction is
extremely difficult…In the Thomas case, without the dogged determination of the
retrial committee, which waged an unremitting and thankless battle for nine
years...[Thomas] would never have been exonerated."
He mentions that in spite of the fact that no credible evidence links
Thomas to the murders, most police and crown prosecutors who were involved
still believe Thomas is guilty.
Unfortunately, in the Ellis case, there was no planted cartridge case, although
the evidence against him has already been torn to shreds. The fact that the
police have spoken to Ellis recently (2002) suggests that they are fixed and
intractable in their belief that Ellis is guilty. It could also, however, have
pointed to the fact that some insatiable person/s were pursuing Ellis, and the
police had no choice.
Justice minister, Phil Goff has held the line that new evidence is required
before a pardon can be considered, and that no new evidence came before the
appeal court judges. However, Lyon (1999 page5) reports that in the American
Kelly Michael case,
"In June of 1998, the court held that the research Bruck described
constituted "new evidence" proving that suggestive interviewing
practices "forever tainted" the testimony of the child witnesses,
necessitating a new trial at which the court would not allow the child
witnesses to testify."
On page 42 (ibid)
It is precisely that kind of new evidence that this document contains in regard
to the civic case.
Lynley Hood has asserted that "The Minister of Justice does not
need the judiciary's permission before he can instruct the Governor-General to
pardon Peter Ellis and establish a commission of inquiry." (Letters
to the Editor Otago Daily Times). Hood is calling for a royal commission of
inquiry to be set up. Looking at the history of Arthur Allan Thomas, [link to
report of the Royal Commission,
pdf 4.1 M bytes, right click and ‘save as’] at the end of the saga, the
commission did turn up some sensible
conclusions, despite all that had gone before. However by then Thomas had
already been pardoned.
Another option could be to overturn the verdict. The Crown could refuse to
re-file charges, and could apologise. Perhaps this option would be convincing
to the public. A pardon might not be taken to necessarily imply innocence in
the public mind. It may not be perceived to amount to an apology either.
A further option is the Privy Council. In the Thomas case, they apparently
chose to ignore the new evidence, and returned a (by then) very questionable
guilty verdict. It is rare for them to overturn a criminal conviction, although
there have been sporadic examples of them doing just that. The Privy Council
may fail to be of assistance in overturning the Ellis convictions, just as it
failed to overturn the Thomas conviction, because there is no new direct
evidence; only a new interpretation of the evidence based on science, not all
of that new either.
If the Ellis convictions are overturned, then we can move on and learn the
lessons made manifest.
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(10.12) Ministry of Justice failures
Val Sim produced a small paper for Justice minister Phil Goff on Hood’s
book. This is discussed previously here. Her advice can be considered faulty
and superficial in the light of the conclusions of this document.
At the time of writing (Sept 2003) Justice Minister Phil Goff has just been
awarded a "bent can opener" award from the NZ sceptics. The
government needs to take note of this considering that the membership of sceptics
appears to consist of a high proportion of university academics. He has always
had the option of ordering a full commission of inquiry or a pardon. His choice
of advisors, and refusal to read Hood’s book can be seen as inadequate for a
justice minister.
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(10.13) Why
did the legal appeals fail?
Lynley Hood (2001) discusses both appeals at length. Hood states that
during the first appeal, Panckhurst (QC for Ellis) "showed that the
allegations on which Ellis was convicted contained no reliable central detail
whatsoever, yet the Court failed to acknowledge this attack, or to examine the
interviews to determine this. At the second appeal, she states that this
failure continued.
Perhaps it is pertinent that even Arthur Allan Thomas could not get the
The problem appears to be that our appeal system is too narrow in its scope. In
order to settle matters properly, anything at all which could have a bearing on
the verdict(s) needs to be mandated by law as being part of an appeal process.
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(10.14) History of Injustices
Newbold (2000 p244) states that
"there have been numerous examples of police evidence tampering and
corrupt investigative practices, spanning at least three decades."
The best known is the case of Arthur Allan Thomas, who was convicted of a
double murder in 1971. A later commission of Inquiry found that police
deliberately planted a cartridge case because, for whatever actual reason, they
wished to secure a conviction against Thomas.
The saga ran thus:
1971 The Thomas Retrial Committee brought many anomalies in the evidence to light, and after a petition, there was an appeal that failed.
1972 A "factually flawed report" (Newbold 2000, p241), from retired judge McGregor, concluded that no injustice had occurred. It went back to the Court of Appeal, and a new trial was ordered.
1973 Thomas was convicted again.
1974 A petition to the Governor General was referred to the Court of Appeal, which recommended no further action.
1978 It went to the Privy Council. That failed. British author David Yallop’s book was published.
1979 Prime Minister Muldoon ordered a report from QC Adams-Smith. Finally, this report recommended a pardon, and the Governor General offered a pardon that year.
1980 Royal Commission of Inquiry found that Thomas was innocent, and the evidence against him had been fabricated (Newbold 2000).
According to Newbold (quoting from books written by the lawyers involved), the reasons it took nine years and four appeals include:
o Perjury from crown expert witnesses who "used a variety of desperate tactics, some of them illegal."
o The creation of false rumours.
o Police perjury and planting of evidence.
In the Ellis case, safeguards against this
problem should have been in place, and seen to be in place. A warning to the
jury by the judge, in regard to the reliability of uncorroborated evidence,
especially that of children, is clearly essential for safe justice.
Over-zealousness and/or bias by police and initial intractability of the
judicial systems, as illustrated in these cases, is also clearly evident in the
Ellis case.
Given such precedent, the problem may be that our Courts of Appeal are set up
in such a manner that they are unable to correct certain types of
mistakes.
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(10.15) The Unfair Dismissal claim
The women Civic childcare centre workers are still out of pocket for their
legal expenses. I understand that this is also in relation to their Employment
Court action (and the subsequent appeal by the Christchurch City Council) for
unfair dismissal. These women also deserve full compensation and apology.
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(10.16) Improving the Safety Net
When all else fails, a pardon (mercy plea) can be sought by petition to the
Governor General. However, it turns out that bureaucrats within the Ministry
Justice again make the real decisions.
Warren Young, deputy secretary of Crime Prevention and Criminal Justice,
confirmed (Christchurch’s The Press 28 May 2003) the ministry uses a
"weeding out process" to determine whether any outside expertise will
be sought. Controversial or complex petitions are often handled in-house by
ministry lawyers, then referred to a QC or retired judge for peer review.
Alternatively, officials might encourage the Minister to appoint a QC or
retired judge to do the whole assessment and provide direct advice.
This process failed Arthur Allan Thomas, and the strong case made by Rex Haig
in December 2001 was also unsuccessful. The Haig petition included statements
from twelve people implicating star prosecution witness David Hogan as the real
murderer of Southland fisherman Mark Roderique. Hogan had been given a $13,000
police reward and immunity from prosecution by the police.
Minister of Justice Phil Goff says that a justice ministry review is currently
(2003) considering reforming the legislation, along the lines of the British
1997 Criminal Cases Review Commission that followed the "Birmingham
Six" miscarriage of justice.
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(10.17) Final note
Ellis himself should have the last word
"I’m angry that I could be prosecuted for abusing unknown children at
unknown places at unknown times. Where are all the children L said we abused
with her? Where is Andrew’s body? Why hasn’t he been reported missing? The
interviewers assumed if a Peter was mentioned, it was Peter Ellis. N [both L
and N are McLoughlin’s psuedonyms] had bruises on his knee at one interview and
told Sue Sidey ‘Peter did it.’ But it couldn’t have been me. I’d been arrested
long before. She didn’t ask him the obvious – ‘Peter who?’ They never
did." (McLoughlin 1996).
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