Section Six
A Fair Trial?
Contents:
(6.1) The City Possessed
. (i) SRA as a Mass Hysteria
. (ii) The Civic Child Care Centre case
as a Satanic Ritual Abuse Scare
. (iii) Other SRA cases
. (iv) The Media’s role in
fanning hysteria
(6.2) The effect on the trial of depositions
pre-trial rulings
(6.3) The appointment of expert witnesses
(6.4) The conduct of Justice
Williamson
. (i) Williamson’s interactions with
Zelas
. (ii) The biased and unfair influence of
Zelas
. (iii) Warning to the Jury about
children’s evidence
. (iv) Ruling on parents’
questioning and meetings
. (v) Indulgence with parent
witnesses
. (vi) Indulgence with the
prosecution
. (vii) Sentencing
. (viii) Williamson's health
(6.5) Incomplete review of
evidence
. (i) Videotapes of the interviews
. (ii) Alternative Explanations
. (iii) Police misconduct
(6.6) Paedophile profile
(6.7) Unbalanced and
unscientific interpretations of evidence
. (i) Contamination ignored
. (ii) "Symptoms of Abuse"
(6.8) The case against the women
(6.9) Comparison with New Zealand MVMO Case
(6.10) Police Misconduct
(6.11) A conviction illustrating the
preceding points
(6.12) Conclusions
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| 3 | 4 | 5 |
6 | 7 | 8 | 9 | 10 | References |
Appendices |
(6) A Fair Trial?
"I have
investigated too many miscarriages of justice to have any faith in the capacity
of the legal system to make accurate decisions."
Professor Graham Davies Lancet. May 2000
There are three main areas of concern in considering if the trial itself was
fair. Firstly, the public climate, and the issue of the jury possibly being
prejudiced in advance by biased media reports. Secondly the pre-trial rulings
that were made by the judge as to how the case was to be conducted. Finally,
there is the conduct of the trial itself. I do not intend to go into great
detail on these issues, because my main emphasis here is to look at the
scientific evidence for the views of the prosecution. Hood had already successfully
canvassed the following issues, and I refer the interested reader to her
award-winning book. In regard to the causes of the public hysteria from a
sociological perspective, I refer the reader to Hill (1998). I have already
discredited the findings of Eichelbaum on numerous counts, so this section
could be regarded as redundant. However, the following outline helps tie
together all that I have stated so far, and shows how the noted inaccuracies,
errors, misjudgements and biases manifested themselves during the whole trial
process. Hood (p525) states that
"...despite his pre-trial assurance that he would take care to warn the
jury against being swayed by the intense media interest in the case, the
directions Williamson gave were routine."
Back to section contents
(6.1) The
City Possessed
In the Ellis case there is good evidence throughout the children’s
testimony that their allegations were driven by the belief on somebody’s part,
that a satanic ritual abuse (SRA) circle was operating within the childcare
centre. Sas (p55) notes that the mother of child X/Bart Dogwood (whose
allegations resulted in three guilty verdicts) "obviously believed in
the possibility of ritualistic abuse…" At the depositions, Bart’s
mother demanded that American ritual abuse "expert", Pamela Hudson, be brought to
Christchurch. She also cites Hudson in her memoirs of the case A Mother’s
Story (Bander 1997). Interestingly, Ms Dogwood reports (Bander p50) that
Bart told her "I killed a boy", and also of "being buried in
coffins and tied up in cages." (this was before the fifth interview). She
goes on to say, "I knew he could never make up such stories."
According to McLoughlin’s analysis,
"[X/Bart Dogwood’s] allegations contained all 16 of Hudson’s
"indicators" of ritual abuse; everything from being defecated and
urinated on to being held in cages and partaking in sacrifices."
A key parent (Sally Ruth/Ms Magnolia)
in the case was also a great fan of Hudson’s work, Ritual Child Abuse (1991)
Comparing some of the children’s stories with Pamela Hudson’s 1991 list of
20 indicators of ritual abuse is enlightening (Hood p286). Included within the
list of allegations that Hudson claims indicate "ritual abuse" are
being locked inside a cage; being buried; the use of needles; having to ingest
urine or faeces, etc. The Civic childcare centre allegations closely matched
this list, but these ‘indicators’ are quite different from those that describe
true paedophiliac behaviour.
Hudson’s book, Ritual Child Abuse, went on sale in Christchurch in
January 1992 just before the police investigation was re-opened. This book, and
others similar to it, has a small reference section listing mostly tabloid news
stories, and obscure, non-academic and non-scientific publications.
The case of Simone Doublett highlights prevailing attitudes. Doublett made
false accusations of SRA in Christchurch in 1991, (see section 1.5 on police
lack of objectivity). Doublett stated (in 1995),
"Everyone was talking about abuse [in Christchurch in 1991]
…everybody was very sorry for somebody who had been abused. …in the fifth form
I described an incident which happened when I was four and which I would not
now consider to be abuse. From the fifth form I started building myself up to
believe that I had been abused." (Christchurch Press May 13 1996)
Her parents stated that the media was full of sexual abuse cases and rumours
were circulating about a child pornography ring. Simone’s counselling began
about eight months before Peter Ellis was suspended from his job at the
Christchurch Civic Child Care Centre
Doublett’s parents contacted the Ritual Action group in Wellington, and changed
churches to have Simone exorcised. Simone’s parents say they learned that Dr
Haye had informally contacted a senior Christchurch policeman, and was told
that even the police could not be trusted because of suspected Satanists in the
force.
Goodyear Smith (1993b)
describes the classic SRA type of allegations in general:
"Classically, the stories start to include details such as activities
involving the children naked in a circle, and making them eat faeces or drink
urine. Sometimes it is claimed that the children have to watch babies or
animals being sacrificed or practice cannibalism. There are often claims of the
adults being dressed as witches or monsters, or wearing masks. It is believed
that they sexually violate the children with fingers, mouths, or genitals in
every conceivable orifice. Often it is claimed that the adults take photographs
or videotape these events".
This has direct parallels to the Christchurch case. Goodyear Smith (1993)
also mentions a number of other aspects that the Christchurch case and overseas
SRA cases have in common.
o It begins with a pre-school child presenting fairly ordinary problem behaviours.
o This (and other ) behaviour is then misdiagnosed as a symptom of sexual abuse
o The child is referred to an expert, who confirms the suspicion
o When the child is interrogated, there will usually initially be a denial, but this itself may be misinterpreted as confirming abuse
o "Ongoing disclosure interviews using leading questioning and selective reinforcement result in the child giving more and more details of increasingly perverse and bizarre events."
Robbins (1998) lists the similarities between a SRA scare and a classic historical witch hunt (eg Salem in America)
o the prevalence of allegations of sex or sexual abuse;
o mere accusations become equated with factual guilt;
o the denial of guilt is seen as proof of guilt;
o single claims of victimization lead to an outbreak of similar claims; and
o as the accused begin to fight back, the pendulum begins to swing the other way as the accusers sometimes become the accused, and the falsity of the accusations is demonstrated by sceptics."
Eichelbaum (p36) notes that the NSW inquiry
referred to an investigation into SRA allegations. Eichelbaum erred in not
reporting the similar parallels of the Christchurch Civic Child Care Centre
case with that of the Orkney Inquiry (the "circle incident"). He
failed to consider that the original source of these SRA stories is not the
children, but can clearly be traced to books in circulation amongst the Civic
childcare centre parents (such as Courage to Heal by Ellen Bass and
Laura Davis.).
Back to section contents
(i) SRA as a Mass Hysteria
The term ‘mass hysteria’ may sound quaintly old fashioned to some, but it
is still in use and episodes of it continue to occur. Similar terms for the
phenomenon include moral panic, mass sociogenic illness, and phantom epidemic.
Hood describes several recent examples (p223), where many people believed false
information, and imaginary symptoms were reported. In one case, parents
reported symptoms of gas poisoning, and picketed a school, yet there was no gas
leak as they claimed, nor were the children sick (Wessely and Wardle 1990) SRA
has many of these features. This case was similar in that the
"symptoms" of abuse had no scientific basis, and clearly, many more
parents (at least 127 children officially interviewed) were scared than could
possibly have been directly affected. The way in which the allegations took off
like a bushfire is also reminiscent of the mass hysteria phenomenon described.
A Sociological analysis of the apparent hysteria
The apparent hysteria surrounding this case has been analysed by Wellington
sociologist Michael Hill (Hill
1998). He begins with an historical description of Witch-hunts over the
centuries, which have exhibited similar behaviours and have victimised early
Christians, Jews, heretics, witches, freemasons, gypsies and modern religious
cults. In the same or a similar list, could be the recent discrimination seen
against Negroes, communists, homosexuals and "immigrants".
The satanic accusations provide a way of perceiving the accused perpetrators as
less than human. This makes it easier to attack them without guilt. In wartime
the enemy is treated in this way by the propagandists, describing them as rats,
vermin etc. Hill discusses this in terms of scapegoats, who in ancient times
symbolically bore the peoples sins away. (Originally in some cultures, they
really were literally goats). In Salem, most of the victims have been shown to
have belonged to new merchant classes. Their accusers, usually the established
pilgrims, envied such classes. There is often an element of deliberate social
warfare in these moral panics (a term used by Hill 1998). Hill’s point is that
if and once the public believed that they were dealing with witches, who were
directed by Satan himself, then the usual checks and balances would be
abandoned. They were then replaced by special laws that allowed otherwise
unreliable and unacceptable investigation methods. These included believing
uncorroborated child witnesses, accepting physical signs (even warts) as proof
of witchcraft, and the use of torture to extract a confession.
An obvious and lasting impression of the Civic childcare centre case is its
similarity to the witch-hunts that swept Europe and America during the 16th
and 17th Centuries. Five themes that they all have in common are:
o A belief in the reliability of uncorroborated accusations from children, no matter how far fetched they sound.
o The selection of victims to lay accusations against according to socio-political criteria.
o The setting up of special court conditions where the usual rules of evidence can be circumvented, and strange signs (including usually hidden body markings) being sought as evidence.
o Theories that the accused are possessed by satanic forces,
o Runaway success in finding "evidence" of an epidemic. In Germany, for example, 100,000 witches were burnt at the stake.
Hill (1998) sees recent changes in our law as
facilitating convictions for sexual abuse of children on evidence that is too
flimsy to stand up under normal established rules of evidence. This, he states
is a clear parallel to the witch-hunts. At the time of the Salem trials, the
normal rules of evidence were eventually re-instated after the appetite for
false convictions wore off. The witchcraft fever came to an end when it became
so dangerous that it lost its focus on certain unpopular groups. It had become
a blunt weapon. In Salem, the persecutions were socio/politically driven. In
the end, they badly misjudged a target, who turned out to be more powerful than
they had bargained for (the Governor’s wife). Since the Salem witch trial era
and until recently, these types of accusations had become very uncommon. The
spate of SRA allegations that occurred around the world in the 1980’s and
1990’s corresponds with the development and dissemination of the SRA theories
as traced by Hill (1998).Some of the classic examples include: Oude Peleka,
Holland in 1988; Jordan, USA in 1990; Orkney Islands 1990; and Rochdale,
England in 1990 ( see pp 83 - 85 Goodyear Smith, 1993),and Martensville,
Canada, 1992 (reported in The Globe and Mail on August 1, 2002).
The social warfare element is not so clear in the modern SRA scares. During the
Salem witch-hunts, and recently in Africa, the accusers often gained access to
their victim’s property. In Salem, the more established puritans tended to
accuse the less devout, more recent trader settlers. Perhaps the SRA
"warfare" in the Ellis case was directed against men encroaching on a
traditionally female domain, and the liberalisation of childcare. In the
similar Geoff Scott case (Wellington), the Civic childcare centre was described
as liberal, with children sometimes playing in the nude. In other cases, women
are the victims. Perhaps they were of a different social group than their
accusers.
There have historically been many other public scares similar to SRA. The
medieval "blood libel" stories, which took hold in England in the 12th
and 13th centuries are one example. In these stories, Jews were said
to kidnap Christians, kill them, and use their blood in arcane rituals. This
unlikely story is being promulgated today in the Egyptian paper, Al-Ahram (The
Observer, quoted in NZ Herald July 5, 2002 page B16). The story reported in
Egypt, was the 1840 Damascus case, in which several Jews "confessed"
under torture to kidnapping a priest and stealing his blood.
Back to section contents
(ii) The Civic Child Care Centre case as a Satanic Ritual Abuse Scare
Elements of modern SRA theory probably have their origins in USA in the
1980s, and in the book, Michelle Remembers, which was later found to be
a hoax. These claims and theories soon made their way to New Zealand. While
falsely claiming to be a qualified therapist, Pamela Klein (USA) addressed a sexual
abuse conference in Wellington in May 1990 (Hood p176). Laurie Gabites, an
Upper Hutt policeman who had visited the USA, spread the doctrine in New
Zealand through his Ritual Action Group (or Network), RAG. The claims are
almost totally without foundation and certainly have no scientific base.
"In her address at the Wellington conference, Klein described her
method of extracting from children as young as five what she believed were
repressed memories of ritual abuse. These ‘memories’- revealed in drawings,
play activities and conversations – included ceremonies involving anal and
vaginal rape, spiders, ghosts, skeletons, knives, crucifixes, tombstones,
fires, high priestesses, infanticide, cannibalism, being buried alive and death
threats." Transcript of address, Hood p176).
Klein’s teachings were clearly transmitted to the child protection movement
(CPM) people already discussed in the earlier section on bias. Karen Zelas must have been exposed to
SRA theories through professional conference workshops such as the Ritual Abuse
workshop taken by Ann-Marie Strapp and Jocelyn Frances at the high profile
family violence prevention conference in Christchurch in 1991 (11 weeks before
the first complaint was laid in the Civic childcare centre case – Hood P180).
This conference was opened by Christchurch Mayor, Vicki Buck, and Family Court
Judge, Patrick Mahony. Workshop leaders included Miriam Saphira, Raewyn Good,
and Laurie Gabites. During the conference, delegates were informed that abuse
was being practised by devil worshippers and that there was a sex ring
operating in Christchurch which manufactured pornographic photographs (and by
implication, videos).
Another person who played a key role in disseminating SRA theory was journalist
Cate Brett (Hood pp 152, 183, 196). Brett’s North and South article on
the Christchurch Civic Child Care Centre case is a textbook example of
misleading reporting (see the subsequent article in the same publication by
McLoughlin). I understand that Brett had a child who attended the childcare
centre. She failed to mention this source of possible bias in any of her
articles. Melanie Reid (Hood p183) was initially credulous, too on TV 3’s 60
minutes. Reid now regrets her previous gullibility. (McLoughlin 1996).
Back to section contents
(iii)
Other SRA cases
Goodyear smith (1993b) states
that the Civic childcare centre case
"demonstrates a clear parallel to similar cases in other parts of the
world ".
These cases include:
o The McMartin case in USA is perhaps the most notorious. There were no guilty verdicts. Hill (1998) quotes an interesting study by Earle (1995) of the McMartin case, which should have been compulsory reading for Eichelbaum. (The study is not mentioned in the references of Sas or Davies). Most of the American cases also involved middle-class parents and relatively less-affluent crèche staff, male and female. In this respect, there is a connection to my comments regarding socio/political factors in the Salem trials. However this aspect is not obvious in the Civic childcare centre case.
o Orkney Islands: This was a case where social workers took a great number of children from their parents after stories of ritual abuse. No evidence of this was proved, and all children were eventually returned. There was official criticism of the social workers’ actions.
Robbins (1998) describes how these cases first
emerged in the early1980s and peaked in the 1990s. She states that:
"Recovered memories of SRA most typically included brainwashing, being
drugged, sexually abused, and being forced to watch or participate in satanic
rituals, drinking human blood, and ritual murder. Such early ritual initiation
was supposedly preparation for an eventual role as a "breeder" who
delivered infants to the satanic cult solely for the purpose of ritual
sacrifice. Children in day care who made accusations of SRA against their
teachers and caretakers gave accounts of ongoing, and often daily sexual abuse
that typically included violent rape, and vaginal and anal mutilation with
sharp objects. Such acts allegedly took place during normal day care hours and
included the presence of magic rooms, tunnels, clowns, jungle animals, animal
mutilation, and flying.."
Much of this description is strikingly reminiscent of the allegations made
by the children in the Ellis case (ie the circle incident, murders, the sharp
objects, tunnels and animals).
Back to section contents
(iv) The Media’s role
in fanning hysteria
The closure of the Civic childcare centre, and the allegations against
Ellis, were highly publicised in the media. Such publicity must have
contributed toward parent’s fears, and as revealed elsewhere in this report,
these parental fears may well have influenced the children. This issue is not
addressed in the Eichelbaum report.
SRA theories were given credence by much of the media before the trial.
Evidence for this is given by Hood (p401), who writes of reporters asking Civic
childcare centre staff if they were obtaining foetuses from abortion clinics,
snakes from Australia and prostitutes for judges and policemen. In addition,
the Christchurch Press had the headline, "Parents in Terror of Abuse
Discovery" and described 200 children as being possibly involved. Hood
(p469) describes the negative portrayal of Ellis on national television before
the trial. A strong case can be made that there was little chance of a fair
trial after such coverage. The fact that character assassinations occur in
other trials (eg Scott Watson) does not make it acceptable or be of no effect.
The media tends to immediately report incredible allegations, and then to check
up on their validity afterwards, often when it is too late to correct people’s
false impressions. The announcements of both Milan Brych’s and the Lyprinol
cancer "cures", as well as the recent GE corn allegations are just
three of many examples of the use of sensationalism in journalism.
In conclusion, I have established that a SRA conspiracy theory existed in New
Zealand prior to and during the trial and that the media effectively propagated
it.
Back to section contents
(6.2) The
effect on the trial of depositions pre-trial
rulings.
This is covered in Hood’s book, chapters 10 and 11. Of issue during this
period is the abandonment of many of the indictments and the extreme reduction
of the amount of material to be presented as evidence by the prosecution. Hood
points out that the depositions involved charges relating to 20 children.
Almost all the videotapes of interviews recorded with the children were played
in closed court. She claims that
"The more videotapes were played, the more openly sceptical the media
and court staff became." (Sunday Star Times 10 August 2003)
I have been able to talk to one of the court staff who confirmed this. Perhaps
if the jury saw the same videotapes, the same scepticism would have resulted.
All the charges against four women co-workers were included in this reduction.
As columnist Diana Wichtel points out (The Herald, 9 August 2003)
"The charges against them just disappeared…on the grounds that their
chances of getting a fair trial were prejudiced by their association with
Ellis…that’s like saying Nazi war criminals shouldn’t have been tried because
[of] their association with Hitler…If we are to believe the children in the
case of Ellis, surely we must believe them in the case of the women too. "
This may not have been fair, because if the jury had seen all the evidence
against the women, (which arose from the same children whose statements
ultimately convicted Ellis) they may have returned not guilty verdicts through
being exposed to unreliable and fantastic claims. Hood highlights the reduction
of the circle incident charges from 16 joint charges to two unequal ones:
"one [major charge] against Ellis...the other [minor charge] jointly
against the women. This change allowed Justice Williamson to dismiss the charge
…against the women while leaving the charge against Ellis…intact." (Sunday
Star Times 10 August 2003)
Back to section contents
(6.3) The
appointment of expert witnesses
Loftus (1989) points out (p200) that in the courts, the value of good
expert witnesses is to ensure that the jury and judge "understand how
various environmental and internal factors operate to affect the perception and
memory of witnesses." This puts it very well. Faust and Ziskin (1988)
suggest that expert witnesses’ claims should be pretty likely to be accurate,
and able to help a jury or judge reach a more valid conclusion.
The scientific credentials of expert witnesses are obviously important in order
to be able to carry out these functions. Faust and Ziskin (1988) suggest that
clinicians who are not scientists (and whose training and experience are not
related to scientific accuracy) are not a good choice because:
o "Clinicians who usually focus primarily on the patient’s subjective reality, must now attempt to determine objective reality, a task for which they may be minimally trained." Corballis (2003) emphasises the same concern.
o "clinicians disregard or underuse information about the frequency of occurrence, or base rates [actuarial data]" (see section 5.7 for a detailed analysis of this problem). In the Ellis case, an overestimation of the frequency of sexual abuse in pre-school institutions combined with a lack of appreciation of the effect of error rates could lead to significant overconfidence in the belief that abuse had occurred.
o "Selective
attention to supportive evidence also fosters ‘illusory correlations,’" A
classic example of this would be the idea that certain behaviours that may be
exhibited by children who are known to have been sexually abused, are therefore
in themselves proof of abuse, and to ignore other causes of these behaviours.
The behaviours and sexual abuse may not even be causally related. "The
repeated ‘discovery’ of ‘confirming’ instances, embedded in the context of
salient personal experience creates a compelling illusion…studies…show that the
conditions under which clinicians practice do not promote experiential learning
"
o "The
patient who challenges a conclusion is viewed as ‘resisting’ the truth or
‘repressing’ it…the result…is overconfidence in [clinicians’] judgemental
abilities. Ziskin quotes a study (K.Hart 1987 conference paper) in which
most clinicians were extremely confident in detecting malingering whilst
actually having an error rate of over 90%.
Zelas is primarily a clinician, and does not
appear to have published relevant research of significance in any reputed
scientific journal.
Zelas is also a psychiatrist, and not a psychologist. The same criticism
applies to defence expert Keith Le Page, although my conversation with him
satisfied me that he did seem to have a good grasp of current relevant psychological
research. A psychiatrist is a medically trained person, with limited training
in psychology. A psychiatrist’s primary expertise lies in medical causes of
behaviour and medical treatments (drugs, surgery and other physical
interventions). A psychiatrist would be a good choice in cases of crimes
committed by psychotic persons who probably have a causative medical condition.
As noted elsewhere here, Zelas’s reliance upon psychological research of poor
quality may indicate that she chose to read studies that supported a prior
point of view, and that she was not trained to evaluate their scientific worth
properly.
Barry Kirkwood, retired senior lecturer in psychology at Auckland University,
has also questioned the credentials of Zelas. It is not her qualifications that
are so much disputed, as rather the state of her knowledge of the relevant
current research.
"Can anyone find a single recognised expert, such as Dr Stephen Ceci [an
American psychologist and researcher in child interviewing], who will vouch
she is competent?"
In preparing this treatise, such endorsement has been sought from academics
and other relevant experts, but not found. Kirkwood puts up three criteria for
expert witnesses: exam passes from acknowledged relevant post-graduate courses,
completed supervised post-graduate research and publications in reputable peer
reviewed scientific journals.
Dr. Harlene Hayne, professor in psychology at Otago University and leading
memory expert, endorses similar concern (in a more general way)
"New Zealand needs to think very carefully about who qualifies
as an ‘expert’. For some reason, clinical psychologists are the only
kind of psychologists that were consulted. Their [experts consulted during
Ellis case] training in memory per se may have been extremely limited.
Given that memory and the way in which you elicit memory reports from children
was the lynch pin of the case, the "expertise" of the expert
witnesses is highly questionable".
I contend that Williamson should have rejected Zelas as an expert witness
on the grounds of her inadequate background. The expert needed to be a
psychologist who was better informed on the relevant recent research. It is
interesting to note in this respect, Williamson’s error (p478 Hood) in
referring to Zelas as a psychologist.
The divergence between her opinions and those of the other expert (Le Page)
should have rung alarm bells with Williamson. Corballis (2003) states,
"If psychological expertise is to be invoked- and I think it must be-
then it is imperative that it lean as far as possible towards the findings of
psychological science…Experience in clinical practice of itself will not do –
human interpretation of experience is notoriously prone to bias and
superstition, and it is the scientists, not the clinicians, who are most likely
to have the most comprehensive and up to date knowledge of the relevant areas
of research."
It is hard to see that Zelas meets that criterion. The jury and Williamson
may have been swayed more by her personality or presentation than by her
scientific objectivity.
Another major difficulty with accepting Zelas as a suitable expert witness is
her apparent support for the theories of recovered memories. This is evidenced
by her court work in several controversial cases, where men have been sentenced
for crimes supposed to have been committed many years ago and for which there
was no memory recalled until therapy sessions began.
Zelas has been directly involved in many other cases of dubious repute. Her
involvement with Ward 24 is reminiscent of the Cleveland case (see Eichelbaum
report p26) in which the doctors suffered from "certainty and
over-confidence."
o Child F 1988 (Hood p147) Zelas convinced Judge Mahon that a ward 24 patient had been sexually abused, despite the fact that the only evidence arose from a number of obviously flawed child interviews. Patricia Champion, a psychologist, questioned the interview techniques that included anatomically correct dolls and jellybeans. DSW officers had also expressed extreme concern.
o Child G 1989 (Hood p151) In a rare move, Judge Kean rejected Zelas’s methods whilst dismissing the complaints. Child G was another ward 24 patient. The child had William’s syndrome. Apparently, Zelas failed to suggest this as a diagnosis; it should be noted in mitigation that she only saw the child once.
o Child C 1989 (Hood P138) Zelas claimed in court that a child had been abused by her father. This was in relation to the now notorious Glenelg Health Camp cases. This may have been based in part on Dr Dianne Espie’s examination of the size of the girl’s hymen, and an interview using anatomically correct dolls. Whatever Zelas based this claim on, the evidence for it was very unreliable. The girl eventually insisted on going back to live with her father and continues to maintain that she was not abused.
o It was reported in the NZ Herald (Press Association) 20 August that Zelas acted in another case of sexual abuse where the convictions were overturned on appeal. The report quoted the appeal court judges as saying Zelas’s comments suggested
"a pervasive quality of justification
for potentially challengeable aspects of the girl’s evidence".
Back to section contents
(6.4) The conduct of Justice Williamson
Even if Justice Williamson held a strong belief in Ellis’s guilt, as noted
earlier, it should not have prevented him from ensuring a fair trial. However
this document moots that Williamson made many unfair decisions that were
prejudicial to a fair trial. Williamson went on to preside over the trial of
David Bain, where some of his decisions have also proved controversial.
Back to section contents
(i) Williamson’s interactions with Zelas
Williamson’s obvious trust in Zelas's expertise may have led him to suspend
his more usual rigour and scepticism. This trust evolved through contact with
her in previous cases, as a result he might be regarded as having been too
closely associated to Zelas. It is claimed by Loftus (1996) that the use of
expert witnesses in court can cause judges and juries to be more credulous and
gullible. This is a caution to choose experts carefully, and as stated earlier,
I believe that the use of Zelas in particular, probably did have such an
effect. At the time other Judges probably shared Williamson’s trust in Zelas,
but many were also probably unaware that psychiatry is not the discipline of
first choice for much of the expert testimony relevant to these types of cases.
Lynley Hood suggested to me that Judges were probably in the habit of passively
accepting whatever expert they were given. Faust and Ziskins’ (1998) comment on
the possible effect of overconfident experts may possibly apply in this case,
"Confidence and accuracy can be inversely related, and yet the jury may
well accept the opinion of the expert who exudes confidence over that of an
opposing expert who expresses appropriate caution."
Evidence that Williamson accepted some of Zelas’s dubious ideas can be
found in his sentencing report (Sunday Times 11 July 1993 p6 and Bander).
"Many of the effects of sexual abuse on these children were the subject
of evidence…they suffered obvious repercussions of headaches, tummy aches,
night terrors, fear and anxiety and sleep disturbances…"
Conflict of Roles
Zelas trained the interviewers (according to my interview with Crawford)
and maintained a consultative supervisory roll over their work. Hood states
that Zelas
"advised the police, trained and supervised the CYF interviewers,
counselled a witness and advised the judge on his questioning of child
witnesses."(Sunday Star Times 10 August 2003)
Her impartiality as an expert witness is therefore automatically in question.
She was thus a questionable choice as an expert witness for the prosecution.
The NSW report (quoted by Eichelbaum p38) clearly recommended that
"... any Crown expert called should be independent, in the sense of not
having been involved in the investigation."
This raises yet another concern in regard to Justice Williamson’s rationale
in accepting her, perhaps only explained by the fact that he had worked with
her before.
It is of interest to note that in overturning a conviction for sexual abuse in
a later case, Zelas also came in for criticism from the Court of Appeal, they
stated
"It is of course essential for any expert witness to be entirely fair
and objective and to avoid the fact or appearance of being an advocate for one
side or the other. We regret to say that we have reservations about aspects of
Dr Zelas’s evidence on this account."
I conclude that Williamson erred in allowing Zelas to appear as an expert
witness for five reasons:
o Her a priori bias (see section (1))
o Inappropriate professional discipline
o Lack of relevant research experience and understanding of the current relevant research findings.
o Potential over-familiarity with Williamson
o Conflict of roles
Back to section contents
(ii) The biased and unfair influence of Zelas
I contend that Williamson must have been aware of Zelas’s background as
already discussed. Therefore he should not have been so uncritical of Zelas’s
work, let alone have seriously considered her for the role of expert witness.
During the Ellis trial, Zelas claimed that most sexually abused children deny
or don’t disclose abuse at the time, they then "initially deny"
it later. She also claimed that they normally have "warm feelings,
loving feelings" toward the perpetrator, and often retract allegations
(Hood p502). From the details of the Cleveland case (Eichelbaum p26), I infer
that children who have not been abused, but questioned at length can also
behave exactly as Zelas described. This would further support the contention
that Zelas does "interpret most things children say and do (or
don’t say and don’t do) as signs of sexual abuse," (as described by
Hood).
If members of the jury were influenced by this convoluted logic, then they may
have interpreted denial as a symptomatic evidence of abuse. In the interests of
natural justice, Williamson should have firmly rejected such misleading
assertions, and left it to the jury to decide.
In one of her interviews with me in 1994 (reported Harper 1994), Zelas put
forward another theory. She claimed that a child will be less likely to
disclose abuse to a caregiver due to a fear that it will endanger such an
important relationship. This assumes, possibly incorrectly, that the child
knows that the abuse is bad. I have yet to see any experimental verification
for this claim. Back to section contents
There are many references in the literature (Loftus 1996) to the lesser
reliability of children’s evidence compared to that of adults. Much of this
critique also deals specifically with these issues. That unreliability is the
reason for the longstanding and previously standard practice of Judges to warn
juries that children’s testimony should be treated with caution. At the time of
Ellis’s trial there was more, rather than less, evidence for this view than in
previous decades. However, changes to the Evidence Act in 1989 included section
23 H (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".
In accordance with the law Williamson did not
issue such a caution to the jury.
Back to section contents
(iv) Ruling on parents’ questioning and meetings
Williamson made the questionable ruling that the meetings between Civic
childcare centre parents were "entirely proper", and that the
persistent questioning by parents using leading questions was unlikely to lead
to false testimony from the children. It appears from references cited in this
report that Williamson’s ideas regarding the principles of evaluating the
reliability of child witnesses were ill founded and possibly reckless (see section
5.3 covering problems with verbal evidence from young children, and section 5.1
on contamination of evidence).
Back to section contents
(v) Indulgence with parent
witnesses
Hood (p496) describes Williamson’s indulgence of a parent who lied in
court. Hood calls her Ms Dogwood (mother of child X/Bart Dogwood). Another
judge at an unrelated trial is later quoted (ibid.) as finding the same woman
not credible, stubborn and inconsistent. She has been described as a serial litigant.
Ms Dogwood apparently later sued her previous employer (she worked as a union
organiser), and directed a complaint against journalist David McLoughlin after
he had published something critical of the case. According to McLoughlin,
police flew from Christchurch to his home in Auckland to interview him, but no
charges were laid. She also initiated action against Civic supervisor Gaye
Davidson for publication of her name in a letter to the editor (Christchurch
Press).
Back to section contents
(vi) Indulgence with the prosecution
Williamson allowed the prosecution to misrepresent the defence. The defence
had argued that parental contamination had resulted in genuinely held false
beliefs. The prosecution was allowed to distort the defence’s position by
saying that the defence’s contention was that the children had been ‘trained,
prompted and coached.’ It could be argued that the prosecution is allowed to do
this, in fact that it is their role to do so, but Williamson ought to bring any
prejudicial distortion to the notice of the jury.
Williamson also allowed a gross distortion in regard to Le Page’s (defence
expert witness) stance on Zelas’s use of the term "consistent". At
the Ellis trial, in accordance with section 23G of the Evidence Act 1989,
expert witness Karen Zelas described certain behaviours such as bedwetting as
being "consistent with sexual abuse". Williamson let the prosecution
argue that Le Page was not entitled to suggest that certain behaviours did
not prove that a child had been sexually abused. Hood (p526) quotes
Williamson’s summing up which seems to imply that Williamson actively engaged
in this line of reasoning.
"he [Williamson] also criticised [defence expert witness] Le
Page for suggesting that ‘a certain behaviour did not prove the child had been
sexually abused’. ‘Under our law he was not entitled to say that, and in any
event that is not the point of the section [23G of the Evidence Act]
Williamson said."
The position Williamson took is absurd. Le Page had not only demolished the
prosecution’s proposition that certain behaviours (such as bedwetting and
nightmares) were relevant to the alleged crimes, but also pointed out the
illogical way in which section 23G is framed. For a judge to actually support
the prosecution’s line of argument here is reprehensible. Furthermore, a more
astute judge might have quizzed Zelas as to how she knew that these behaviours
were relevant (i.e. on what kind of research she based her comments, and what
exactly she was trying to say to the jury).
Psychologist Barry Parsonson has this to say about the Act:
"What needs to be done is to toss out s23G and to remove the
constraints it imposes on experts...there are no behaviours that are reliably
consistent with sexual abuse. Even so-called sexualised behaviours, which are
not always well defined in the research literature, are not exclusive to and
thus diagnostic of abuse".
Parsonson considers the exercise pointless because there are no behaviours
that can be said to be inconsistent with sexual abuse. Once, he says, "lists
of behaviours were portrayed as indicators, and thus consistent with, sexual
abuse". A 1993 review of 45 studies in the reputable Psychological
Bulletin stated "the findings suggest the absence of any specific
syndrome in children who have been sexually abused". And, "no
one symptom characterised a majority of sexually abused children." The
term ‘consistent with’ could well be an inappropriate choice of words, one that
is logically invalid. In 2002, Val Sim (the chief legal advisor for the
Department of Justice) has reported the Law Commission is considering repealing
section 23G.
I contend that Williamson should have clarified Zelas’s statements about
behaviours being "consistent with abuse". If Zelas used the term in
the logical and dictionary sense, then almost any normal human behaviour is
consistent with abuse. In that case, she was saying nothing of
interest or relevance to the court, and should have been pulled up
frequently for wasting the court’s time. If she was trying to claim that the
presence of certain behaviours made it more likely that the children had been
abused, then her contention should have been stated directly, and evidence for
the contention must surely be required. There does not appear to be any other
possible meaning, and none has been put forward. Judges need to exercise basic
logical reasoning and Williamson in this instance did not.
It would be interesting to compare the number of interruptions made by
Williamson to the defence with those to the prosecution. Ellis felt that
Williamson’s interjections seemed to occur more frequently when his lawyer was
on a roll (Hood p498). As this analysis has already shown, there seems to have
been proportionately more genuine occasions where the prosecution acted
unfairly or illogically. On these occasions Williamson erred in the
prosecutions favour.
Williamson allowed prosecutor Stanaway to continually ask the children leading
questions during the main evidence (evidence in chief). Stanaway was further
able to mark some non-credible tapes "not to be played." (Hood
p547). Eichelbaum claims that (p12), "the defence was not prevented in
bringing before the jury the tapes in which some of the more seemingly bizarre
allegations were made." However, earlier on the same page, Eichelbaum
admits that the judge ruled during the trial that the crown did not have to
produce tapes "which did not make allegations on which the crown relied."
Firstly it must be noted that one statement is referring to the defence and the
other to the prosecution. Maybe the defence team should have tested
Williamson’s rulings more strongly on this matter. I remain confused. There
appear to be significant differences between the claims and accounts given by
Hood, Eichelbaum, the Court of Appeal and Phil Goff the Minister of Justice as
to whether to defence was unfairly compromised in regard to its ability to play
children’s videotaped evidence to the jury. It is as though these sources are
deliberately obfuscating whatever lies at the heart of this highly important
matter (see also section (6.5.i) below).
Pankhurst pointed out in the appeal, when the defence wanted to show a
videotape; (i) the child did not have to watch, and (ii) the jury did not get a
transcript.
These two points suggest that Hood’s arguments are valid and Williamson was not
allowing the defence the same freedoms and opportunities as the prosecution.
Williamson claimed in court that the trial was not about the conduct of
parents, police or specialist interviewers. (Hood p 526). That severely and
unfairly limited the scope of the defence as the reliability of complainant
evidence is inextricably linked to these issues.
The prosecution were allowed by Williamson (Hood p458), during pre-trial
hearings, to remove specific reference to the address at Hereford Street where
some of the alleged incidents took place. This may have been unfair, as it made
it difficult for the defence to point to inconsistencies and unlikely
allegations from the children about the address. The defence couldn’t cite the
ludicrous nature of specific elements that the children supposedly described,
such as "hidden cavities" and "tunnels". At that address
these could only have been a storage cupboard under the stairs and the laundry
chute . Yet Eichelbaum gives specific credence to the existence of hidden
cavities at the specific Hereford Street address (p119). This means that the
Crown (through Eichelbaum) is trying to have the argument both ways. Eichelbaum
fails to show any clear connection between the children’s fanciful allegations
about these cavities, nor does he acknowledge that the laundry chute was
blocked off at the bottom; so allegations of children being put down the chute
were false (Hood p407). In addition the cupboard was plainly obvious.
Davies admits (p35) that there was no positive proof that the children ever
visited Ellis’s house, although he thought there is "some supporting
evidence" as alleged in some of the statements that led to
convictions. This "supporting evidence" is not specified, and given
the loose definition of "evidence" throughout the report, he may not
mean more than unlikely allegations. Davies may not have known that Ellis is
known to have taken some children to this address once, probably in 1987 (p203
Hood). According to Hood, only two of the 21 children involved in charges
against Ellis are likely to have visited on that occasion. Davies does not
refer to this type of detail, or the lack of evidence from adult witnesses of
any other visits to Hereford Street. So, it is safe not to give weight to his
statement about "supporting evidence".
When Williamson allowed Detective Eade to present his "schedule of
behavioural matters" (Hood p506), he allowed the police to present totally
unscientific evidence under the guise that it somehow had scientific
credibility. In effect he allowed lay persons (police) to present expert
evidence (scientific) of a most dubious nature. Eade’s table, in effect,
attempted to correlate complainant children’s reported (and presumably reported
by complainant parents and/or their therapists and interviewers) behaviour with
thoroughly scientifically discredited behavioural indicators of sexual abuse.
Furthermore when considering the objections of the defence to this procedure
Williamson stated that;
"...charts to assist the jury in complicated cases can be very
desirable and is not improper provided the contents are proved and the judge is
satisfied there is no unfairness."
In this case, the contents were hardly proved.
I am unaware as to whether the Appeal Courts reconsidered this ruling (oral
judgement No.5) but Eichelbaum makes no mention of it in regard to this
evidence.
(vii) Sentencing
As part of the sentencing procedure Williamson considered a victim impact
report. This report was prepared by Gregory Wynne Heath of Christchurch police.
Heath took part in the police investigation and appeared as a Crown witness.
The bulk of the report was written by;
"…
counsellors who have been assisting the children since the start of the
inquiry: ....."
The report purports to be clinically diagnostic. Given the roles of these
counsellors the scientific validity and impartiality of the report is
questionable. Williamson emphasised its content in his sentencing.
The Civic investigation was a multi-victim-multi-offender case set in a nursery
facility and the only one of its type to ever occur in New Zealand. Ellis was
convicted on four counts that placed him at an “unknown address” outside the
child care centre. Two of these involved abetting an “unknown person” to
indecently assault children. The subject of these counts was clearly
ritualistic in nature. It is reflective of the climate of that period,
including numerous news reports of overseas cases of alleged satanic abuse,
that the last of four principle aggravating factors cited by Williamson in his
sentencing was;
“Fourthly, crimes of this type are prevalent.”
Back to section contents
(viii) Williamson's health
Judge Neil Williamson died in Feb 1996 aged 57 after heart surgery in
Auckland. During the Ellis trial, he suffered from cancer, which reportedly
affected his face.
Back to section contents
(6.5) Incomplete review of evidence
(i) Videotapes
of the interviews
It is of interest to consider the rulings that resulted in the defence
feeling constrained in their ability to more extensively play some videotaped
interviews to the jury. In Judgement No 5 Williamson ruled that the crown was
required to play only the tapes on which the charges were based. In addition,
the children did not have to view tapes called only by the defence and so the
children could not be properly cross examined on such tapes. This simply ruled
in favour of the prosecution. Hood describes the ruling on p473, but no reasons
are cited.
Eichelbaum however (p11, 12), states that this ruling was revisited in
Judgement No 6 and that ultimately the defence could call for taped evidence
not played by the Crown and then cross examine on it, subject to the curious
qualification that "Particular matters within specified tapes could be
subject of further examination." (ibid) As noted previously this seems
to be at odds with the gist of some of Hood’s contentions.
It also contradicts what the Minister of Justice, Phil Goff, is reported as
saying
"Mr Goff said that although the trial judge ruled against
playing transcripts of claims which did not lead to charges against Ellis, the
jury was well aware "that some of the material was bizarre and
fanciful"." (NZPA August 4 2003)
The answer to all this apparent confusion, to all the claim and counterclaim,
may lie somewhere in the issue of relevancy which, according to commentators,
Justice Williamson insisted upon. The defence obviously felt constrained by this
insistence as they raised the issue in the 1999 appeal, but the Court of Appeal
did not accept the contention that the defence were constrained in this regard
(Eichelbaum p12).
Nevertheless, in the event, many highly relevant videotaped interviews were
not viewed by the jury. An example of the sorts of distortions that resulted
from this is reported by Sas (page 54 Sas report). She states that some
videotapes of child X/ Bart Dogwood (three convictions, one not guilty) were
not shown to the jury. There exists a significant tape that was not shown, that
of the fourth interview in which Bart alleges that he was put in an oven and
had needles placed in his penis.
In addition, the tape includes a description of the now notorious "circle
incident" allegation. These are both classical SRA accusations, and raise
serious questions as to the source of all of X/Bart’s allegations.
As defence lawyer Harrison put it:
"…the jury never got to see the developing picture, the spread of
ideas, the processes the kids had been through, the inconsistencies in their
statements, the way they made bizarre allegations as earnestly as they made
credible ones, and the contamination of evidence." (Hood p474)
This clearly handicapped the scope of the defence. It is apparent that
videotapes prejudicial toward the prosecution case were subjected to a
multistage elimination process. Some may have been eliminated as they revealed
flaws in the interviewing techniques and/or contradictions or inconsistencies
with the remaining ones. The process began with the gathering of a large number
of homogenous interviews. The interviewing teams then discarded the ones that
contained no allegations. Next, the police and interview team eliminated the
less convincing ones. The lawyers then eliminated some more, and at
depositions, the judge eliminated yet more. This selective process has
parallels with well-documented distortions of scientific method used by
discredited researchers in many fields. By eliminating the failures and
publishing only "successful" data, such researchers seem to produce
statistically significant results. Only an analysis of the "failed"
experiments could show the true picture and demonstrate the failure of the
"good" results. The interview transcripts demonstrate that some
interviews not shown to the jury appear to seriously undermine the credibility
of those that the jury saw. In the interests of justice, Williamson should have
been aware of the serious dangers in this regard. He could have simply ensured
that all 22 videotapes were viewed by the jury, instead of the 12 (with an
excerpt from a 13th)
Back to section contents
(ii) Alternative Explanations
There appear to be many credible alternative explanations for some of the
children’s allegations that were not raised in court. As Ellis had been denied
his right to proffer such explanations, first from his employer, next by the
police, then by the interviewers and ultimately by Williamson, some of this
information will be forever lost. McLoughlin (1996) interviewed Ellis in prison
about this:
"I was supposed to have driven them in my car to houses to abuse them,
but I don’t drive, I’ve never had a car. But at the crèche we played in
make-believe cars made out of boxes. That’s where it would have come from. And
talk of the staff being bad, it came from the Wizard of Oz. For weeks [after
it was on television], all the kids would play Dorothy, Toto and the Wizard.
But none of them of course would play the wicked witch, so Marie had to. Crèche
staff always played the baddies in the games."
Hood’s book is full of examples.
The police failed in their duty to be impartial and to seek Ellis’s
explanations on three counts:
o The first child allegation occurred on 20 Nov 1991, yet police did not interview Ellis until the end of March 1992 (Hood p296). There is no justification for this delay.
o When police finally interviewed Ellis, crucial questions to establish other possible sources of the allegations do not seem to have been asked. There is no evidence that police sought alternative explanations from Ellis. When Ellis was finally arrested on 30th March 1992, Eade did show him a video of one interview, but the child interviewed had never been enrolled at the Civic childcare centre, and had only gone there in the company of her parents, who went there to pick up the child’s younger sibling. The child obviously hardly knew Ellis. Thus at this point Ellis was given no information about any of the allegations that were to go to trial.
o Nor at the time, or during the course of the two lengthy investigations, did the police seriously seek possible alternative explanations from the other Civic childcare centre staff. The other staff were isolated from Ellis at the request of the police. The Eichelbaum report provides little analysis of any of their explanations given at that time, presumably because they were simply not asked. Consequently, the chance to discover alternative and perhaps more mundane explanations for the children’s stories was lost. The scientific principle of parsimony requires after the consideration of all alternative hypotheses, the choice of the simplest one.
This section has dealt with two major issues in
the evidence. Firstly, it was clearly unfair and distorting to have eliminated
so much of the videotaped evidence. Eichelbaum fails to seriously consider the
effect of this on the jury.
Secondly, alternative explanations for the children’s allegations had not been
sought early in the investigation, as they ought to have been. Ellis was denied
the opportunity to explain them at the time, when his memory of working at the
Civic childcare centre was more reliable and fresh. The interviewers themselves
failed substantially to question the children about the sources of their
allegations (source monitoring). There needs to have been a warning about this
to the jury.
Back to section contents
(6.6) Paedophile profile
If Ellis were a long-term paedophile, then in all likelihood there should
be other corroborating evidence to this effect. The police searched for this,
but failed to find any. Such evidence, if it does not relate directly to the
present allegations, can be regarded as prejudicial to the accused, and often
is not presented in court for that reason. What is being considered in this
argument is the total lack of both general and specific evidence (other than
the children’s testimony). This should be an important consideration for a
Court of Law in such cases, and a judge should both consider and weigh the
evidence in this regard. Although this topic was outside the terms of reference
for the Eichelbaum report, it is worth considering here. With only the words of
children to go on, and these having been obtained long after the alleged
events, it is highly apposite to consider two things:
o Does Ellis’s personality fit that of known paedophiles? This could be outside the court’s concern if he were found to be a paedophile on the basis of personality alone. Such assertions would be prejudicial. However, if his personality does not match that of a paedophile, this would point weaken the prosecution’s case. I am not sure that such information would be acceptable in court, but I do not see why it should not be.
o Do the alleged offences match those of known paedophiles?
Here are some discussions about probable differences in regard to both points:
o Hood (p285) quotes research by Dr Money that shows that making children drink urine (as alleged in this case) is not paedophile behaviour. Urophiles do not even do this, nor is it likely that they would use a cup. Sim (2002) points out that Ellis had spoken of "golden showers". In addition, Sim asserts that Hood only relied upon an e-mail statement from Money, some market research, and her own reading of sexual abuse literature when claiming that urophilia and paedophilia cannot co-exist. Not withstanding, Sim appears to miss the main point that Hood makes, that drinking urine from a cup is not a common practise in either urophilia or paedophilia. Hood is arguing that the allegation of drinking urine from a cup is therefore unlikely to be true.
o Chris Knight, a solicitor, commented (Hood p236) that paedophiles he had known did not talk about their alleged victims as Ellis did. Ellis always showed concern about them, and never called them liars.
o Ellis turned down an offer (probably late in 1991, Hood p164) of $10 000 from the city council, conditional upon him resigning his position. Instead, he stated that he wanted his job back. Such a response would appear unlikely to be that of a man guilty of paedophilia, as he would arguably take more heat off the investigation by leaving the scene of his crimes. The prosecution alleged that Ellis had sworn the children to secrecy, and implied that paedophiles operate in secrecy. At first glance this appears a very sound hypothesis. However Ceci and Bruck, (1993 page 433) quote two studies, one co-authored by Gail Goodman suggesting that 5 year olds are better at keeping secrets than 3 year-olds. If that is so, then the Civic childcare centre children may not have been of an age that is good at keeping secrets at the time of the alleged offending.
o Criminologist Dr Greg Newbold has asserted (when interviewed by the author in August 2002) that in considering a number of paedophilia cases, "you often get single ineffectual pathetic types who can’t get girlfriends." They also are commonly of "relatively low intelligence, and middle aged."
Ellis does not fit this profile. However, Newbold states that there are exceptions. For example, Gary Glitter (convicted of possession of child pornography) was flamboyant. If this information is correct, then, we cannot be sure Ellis is not a paedophile, but only that his personality makes it unlikely. This is just another of the many sources of reasonable doubt.
There was no good scientific discussion as to
whether Ellis’s alleged behaviour was in fact in accordance with the known
common patterns of paedophiles. If, as the defence assert, the offences were
imaginary and based on a satanic fantasy, these allegations could be expected
to differ from those alleged where the accused is proved to have been a
paedophile. I contend that they do. In this connection, it is interesting to
note that the influential Smart report listed supposed signs of paedophiles who
prey on pre-schoolers, but they did not match Ellis particularly well. There
was no evidence of Ellis indulging in substance abuse, apart from at one stage
his enjoyment of a few drinks over lunch, and he was certainly not regarded by
anyone as punitive with the children, furthermore whilst he was openly
bisexual, he did not appear to have sexual difficulties. Neither was Ellis a
loner with no partners. The defence was at fault in this regard in not seeking
this type of evidence. It was no doubt outside Eichelbaum’s terms of reference,
but should not have been. Whilst as Newbold points out in the forgoing, we can
not rule out anyone from being a paedophile, a lack of any commonly occurring
paedophile traits must make it less likely.
Back to section contents
(6.7) Unbalanced
and unscientific interpretations
of evidence
(i) Contamination ignored
Hood (p527) points out that Williamson said the jury were entitled to infer
that an event had happened when the children’s evidence happened to agree on a
point, but failed to point out that they were equally entitled to infer that
such agreement may have resulted from a common source of contamination (parent,
rumour, social worker repeating allegations, etc).
The second appeal court noted (note 50(i))
" Dr Zelas initially appeared to state at trial that direct and leading
questions were a normal part of an evidential interview, and necessary to
elicit information from a child. However, under cross-examination she stated
that leading questions could be suggestive to a child, but that the answer to a
leading question would need to be analysed to assess whether the lead had been
taken up and if any supporting detail had been provided."
Dr Le Page for the defence may have failed Ellis when he accepted under
cross-examination that direct and leading questions may, at times, be necessary
where information is not otherwise forthcoming.
Back to section contents
(ii) "Symptoms" of Abuse
There is now no way of knowing what weight the jury gave to Zelas’s
contentions that the children were exhibiting behavioural symptoms
"consistent" with abuse (including tearfulness, anxiety, stomach
aches, and tantrums). Under cross-examination, Zelas said that she hadn’t
thought about what behaviours are inconsistent with abuse (Hood p 504), yet
Williamson allowed the scientifically unsupported theory regarding symptoms to
stand.
On the issues of "consistency", "inconsistency",
"symptoms of abuse" and evidential merit Barry Parsonson has this to
say
"There are no behaviours that are reliably consistent with sexual
abuse, there are some behaviours that may be more common (such as so-called
sexualised behaviours, which are not always well-defined in the research
literature), but they are not exclusive to and thus diagnostic of abuse.
Equally, because there are all sorts of behaviours that may be evident in
sexually abused children, and in non-abused children, there are no behaviours
that can be said to be inconsistent with sexual abuse. This is what makes that
section (s23g) of the Evidence Act so meaningless. It dates from the days when
lists of behaviours were portrayed as indicators, and thus consistent with,
sexual abuse. These have since been shown, by analysis of the research
literature, to have no evidential or probative value." (personal
correspondence, 2002).
Ellis was convicted a year before a San Diego County report which
discredited submissions based upon such "symptomatology" and perhaps
before the general acceptance of the research conclusions as referred to by
Parsonson that debunk this approach. Nevertheless, Williamson was reckless in
allowing this novel theory such credence. He should have advised the jury that
the theory was new and untested, and not to place much weight on it. He did
not. It appears that the reason for this is that Williamson himself accepted
the theory was valid as is evidenced in his address at sentencing
"...they [the children] suffered the obvious repercussions of
headaches, tummy aches, night terrors, fear and anxiety and sleep disturbances,
but also some of them show signs of what might be termed psychiatric disorders
connected with sexual abuse such as depression, lack of confidence, self
esteem, as well as eating and sexual disorders."
Eichelbaum does not raise concerns in regard to the general acceptance of
these viewpoints. Eichelbaum signals credence in the theory by "readily
accepting" (p107) Sas’protocols for the dissemination of information
regarding behavioural symptoms. Yet curiously, Eichelbaum states in reference
to the San Diego report, "theories utilising behaviours as proof of
child sexual abuse were discredited."(p34), but significantly, when
weighing the grounds for reasonable doubt, he fails to return to this issue.
Back to section contents
(6.8) The
case against the women
Williamson effectively conceded, by dismissing the charges against the
women, that the evidence against them was weak. I also find no evidence for the
guilt of the accused women. I see no problem in rejecting exactly the same
evidence in regard to Ellis.
"Between depositions and trial, crown solicitor Brent Stanaway reduced
the number of charges, complainants and defendants, and reshaped the
indictment…he reduced the 16 "circle incident" charges which had been
laid equally against Ellis and three of his female colleagues, to two unequal
charges: one against Ellis (as principal offender), the other jointly against
the women (as parties to an offence by Ellis). This charge enabled Justice
Williamson to dismiss the charge of group sex against the women while leaving
the charge against Ellis (based on the same allegations by the same child)
intact" (Hood, Sunday Star Times 10 August 2003).
The charges against the women simply vanished. This may well have been
prejudicial toward Ellis, because if the evidence against the women been
presented in court the unreliable nature of many of the children’s allegations
may have been revealed.
Back to section contents
(6.9) Comparison
with a New Zealand MVMO case
Perhaps the closest case to what was alleged to have happened at the civic
childcare centre would be the prosecution of Bert Potter, and some of his male
followers, for sexual assault of children in 1992. Bert Potter, aged 67, was
charged and convicted of indecently assaulting five minors. The children were
as young as three and a half years old. He was sentenced to seven and a half
years in prison