Section Contents:
Summary of the case history
Public Criticism of the case and
verdicts
The Eichelbaum Report
The Terms of Reference
The central issue
Next Section
Previous section
Document Contents | Intro | 1 | 2
| 3 | 4 | 5 |
6 | 7 | 8 | 9 | 10 | References |
Appendices |
On 20 November 1991, only 17 days after the
Sunday News newspaper featured an article that claimed that satanic ritual
abuse was rampant in New Zealand, Sally Ruth, a mother of an infant attending
the Christchurch Civic Child Care Centre, made to supervisor Gaye Davidson the
first complaint of "inappropriate sexual behaviour" against Peter
Ellis. Ellis, 33, was an experienced, qualified pre-school teacher employed by
the childcare centre. Ellis was suspended from work the following day. Ruth,
referred to by author Lynley Hood as Ms Magnolia, formally
complained to police on 25 November. Her child did not disclose abuse to
specialist interviewers during the course of subsequent investigation and was
not party to later court proceedings. A mass meeting of childcare centre
parents was held in December, and rumours fuelled by gossip and media reports
flew about amongst the parents and Christchurch citizenry. The first formal
allegation made by a child arose in January 1992, but this child had never been
enrolled in the Civic childcare centre, and was not a subsequent witness at the
trial. On 23 March 1992, the Holmes television show presented an item on the
childcare centre. During that item, Karen Zelas (the prosecution’s expert
witness) talked about the possibility of abuse at the childcare centre, and
listed behaviours that could indicate abuse. On 31 March, there was another
significant meeting of parents in Knox Hall, at which a flyer listing
"indicators of sexual abuse" was handed out to parents.
Eight months later, at a depositions hearing in November 1992, Peter Ellis and
four female colleagues faced 60 charges of sexual offending against 20 children
in their care at the Christchurch Civic Child Care Centre. Included was a
charge that Ellis and one of the women co-workers, Debbie Gillespie, had sexual
intercourse, in full view of the children, in the hall outside the toilets on
childcare centre premises. In another charge, they were said to have all danced
naked in a circle with the children, singing cowboy songs with a guitar. The
only charge against the co-workers that was dismissed at depositions was the
one claiming Gillespie had sex with Ellis.
Between the depositions and the trial, the crown solicitor, Brent Stanaway, had
the options of bringing new charges (based on the same evidence), re-laying
charges dropped at the depositions, or of dropping some or all charges.
Stanaway dropped six complainant children as witnesses, and reduced the number
of charges involving the remaining children. Two parents withdrew their
children as witnesses (Hood Chapter 11). Consequently one female worker was
discharged.
On 6 April 1993, still during pre-trial hearings, the three remaining female
co-workers were discharged. Justice Williamson reluctantly discharged the three
women on grounds that included that the evidence was insufficient, that there
was a potential for prejudice against the accused women, and that an
"unavoidable delay" would result in hardship to the child witnesses.
Later in April Ellis was indicted on 28 charges. Many charges related to
children of parents who were counsellors, social workers or therapists. Of the
complainants whose accusations resulted in conviction, three of the seven were
children of such parents (Haden 1997). According to Hood (p200) five of the
parents of these seven children worked in the sexual abuse field.
By June, the judge had further dismissed three charges against Ellis (one child
denied the allegations in court and another had stated that the interviewer had
"taught" her what to say). Ellis was indicted on charges of various
acts of ritual and sexual abuse of the children, and then convicted on sixteen
counts. Not guilty verdicts were returned for the remaining nine. On 22 June he
was sentenced to 10 years imprisonment.
Ellis appealed against his convictions in 1994 and as a result the three
convictions relating to child complainant "N/Zelda Cypress" were
quashed as the girl had retracted. She was one of only four of the eleven
complainants who had no not-guilty verdicts returned on charges relating to
their allegations. Of these four, only one other had resulted in more than two
guilty counts. Child N/Cypress
was the eldest and on that account had been stressed as being particularly
reliable by the prosecution. Following this appeal only 13 of the
original 28 counts that had made it to trial remained. The number of children
related to the charges had been reduced from 20 to 6. The Court of Appeal
rejected criticism of the interview techniques.
In December 1997, Ellis’s Counsel, Judith Ablett Kerr petitioned the Governor
General for a pardon or alternatively, to return the case to the Court of
Appeal (Hood p596-). During 1998 Ablett Kerr applied to extend the scope of
reference for the appeal, and also applied for bail for Ellis. The case
returned to the appeal court in 1999.
In January 1999, a report was then commissioned for the Secretary for Justice
by former judge Sir Thomas Thorp. It raised concerns that the interview
techniques may have been flawed due to inappropriate questioning and
suggestion. Finally, in October, the Court of Appeal hearing dismissed the
appeal, saying that the judge had placed ‘no undue restriction on the defence’.
However, it also expressed reservations in regard to some of Zelas’s testimony
(Hood p602). Furthermore it suggested, on no less than four separate occasions,
that a commission of inquiry could better evaluate aspects of the case.
On 2 February 2000 Ellis completed his sentence. He had refused to apply for
parole, or to take any therapy, stating that both were inappropriate, as he was
innocent. In March the Eichelbaum Ministerial Inquiry was established and its
report was released in March 2001.
A long awaited book by Lynley Hood, A City Possessed, appeared in 2001. The
book had been expected to be published earlier, but the finished work was
lengthier than stipulated within the contract between Hood and her publisher,
Canterbury University Press. The publisher wished to abridge the work and a
subsequent dispute resulted in the book being published by Longacre Press. The
Minister of Justice, Phil Goff, publicly refused to read Hood’s book. It
subsequently won first prize in the non-fiction and reader's choice sections of
the Montana Book Awards 2002. In 2003 Hood was awarded a doctorate in
literature from the University of Otago for this book and three other works.
Two of the examiners said she would have received the doctorate for A City
Possessed alone.
In 2002 (May) Val Sim, chief legal counsel to the Minister of Justice, prepared
a report on Hood’s book for Phil Goff. The report looked at some of Hood’s
major claims and took a contrary position to that of the recent tide of reviews
favourable to Hood (e.g. that of criminologist Professor Newbold 2001). Sim’s
report is a legal analysis, and as such it dismissed all of Hood’s major claims
in terms of there having been a miscarriage of justice. Most specifically it
surveyed Hood’s work for the appearance of any new evidence.
In August 2003, publisher Barry Colman published in the Sunday Star Times (a
national Sunday newspaper) transcripts of the evidential interviews that were
conducted with three of the children whose testimony resulted in convictions.
On 16 August 2003, two of the six children, Child X/Bart Dogwood and Z/Kari
Lacebark, now teenagers, publicly replied in the Dominion Post newspaper to the
criticism, and stood by their testimony, that had been published the week
earlier.
In response to raging public controversy the Minister of Justice referred two
petitions calling for a Royal Commission of Inquiry into all aspects of the
case to Parliament’s Justice and Electoral select committee. This happened on
the 3 September 2003. More than one hundred prominent New Zealanders had signed
the first of the petitions.
After an unprecedented 23 months of consideration the committee delivered its
non binding recommendations on 8 August 2005, a day or two before Parliament arose and one
month prior to a general election. Although it did not recommend a commission
of inquiry the committee did recommend that the path of appeal to the Privy
Council be cleared for Ellis and that a formal body to examine possible
miscarriages of justice be established, such as had already been set up in the
UK.
In April 2006 Ellis’s counsel Judith Ablett Kerr announced an appeal would be
lodged with the Privy Council despite, eight months out from the Justice and
Electoral select committee’s recommendations, there still being no indication
from the Attorney General that such an application would be allowed.
Howard Broad, who as a police inspector in 1992 played a significant role in
the original investigation, was appointed as Commissioner of Police and became
the New Zealand’s highest paid public servant.
Back to section contents
Public Criticism of the case and
verdicts
There has been a steady stream of public criticism of the verdicts from
many different sources. A summary of some of the significant reports in the
public arena will outline the sorts of concerns that Eichelbaum would need to
address in order to satisfy the public that the matter has now been closed. To
my knowledge the only other verdict to receive this sort of negative review is
that of Arthur Allan Thomas.
The Christchurch Press after initially publishing an article reporting
satanic ritual abuse (SRA) allegations, and the allegations against Ellis, a
series of articles by court reporter Martin Van Beynen severely criticised the
verdicts.
1993 First do no Harm (a book of 167 pages) was published by Dr Felicity
Goodyear-Smith. Because the case
was sub judice at the time, she published the chapter directly criticising the
Civic centre case in the American Journal of the Institute for Psychological
Therapies (Goodyear Smith1993b). In it, she severely criticised the way the
evidence was gathered and analysed on scientific grounds and made direct
comparisons with overseas cases.
1995 Assignment TV documentary programme Ellis Through the Looking
Glass, interviewed Professor Stephen Ceci about the case, and reversed the
spin of previous programmes from belief to disbelief. Videos of some of Ceci’s
relevant experiments were shown.
1995 Michael Hill a sociologist at Victoria University and expert
in the social phenomenon of witch-hunts called for an Inquiry into the
case. Hill was to follow this up in 1998 with his treatise Satan’s excellent
adventures in the Antipodes.
1996 North and South published Second Thoughts on the Christchurch
Civic Crèche case by David McLoughlin. An earlier article had not expressed
much doubt. This one certainly did.
1996 NZ Skeptics The 1995 TVNZ Assignment documentary critical of
the Civic childcare centre child abuse case was singled out for accolades at
the Skeptics annual conference. David Mcloughlin also received awards for his
work in the documentary and for his follow up North and South article (see
previous entry).
1997 Sunday Star Times Frank Haden’s article on June 22 did not beat
about the bush. "How on earth can this abuse case have happened" was
the headline. Since that article Haden has periodically written and questioned
the convictions.
1998 Satan’s excellent adventures in the Antipodes by Michael
Hill published in Issues in Child Abuse Accusations 1998 10. In
this article Hill traced the development of ritual abuse dogmas in the two
decades following 1980. Hill rationalises that the forces driving Civic
prosecution had roots in the panic resulting from such imported belief systems.
1999 Thorp report (for the Secretary of Justice) came out, and was
quoted in the media. It was written by retired high court Judge, Sir Thomas
Thorp in response to the petition for a pardon. This considered reports from
Hamilton psychologist Barry Parsonson, and some comments from Cornell
University psychologist and child researcher Professor Stephen Ceci. Thorp urged the Justice Minister or
Crown Law office to seek a formal opinion from Dr Ceci.
Journalist Warwick Roger, (Metro writer and ex- editor) published a
criticism of the way the case was conducted. Unfortunately, I did not keep a
copy. It was around this time.
2000 Crime in New Zealand was republished in a substantially revised
edition. This is a criminology textbook, by Sociology Professor Dr Greg Newbold
from Canterbury University. I quote from this in several places in this report.
2001 A City Possessed by Lynley Hood. Hood’s book won first prize in the
non-fiction section of the Montana Book Awards 2002. At 672 pages it is the
most detailed single volume overview of the case yet published. I quote
extensively from it.
2001 New Zealand Law Journal published a review of Hood’s book by an
Australian Lawyer. It concluded (p361) that "It should focus our attention
on necessary reforms".
2002 New Zealand Law Journal (in February) published an editorial
significantly more favourable to Hood’s conclusions, "no one … can be
happy that the convictions are safe." It was also scathing of some
shortcomings of our legal system discussed by Hood.
"If…you argue you are innocent and have only been convicted because of
misjudgement…the court of appeal will refuse to exercise the power parliament
intended it to have."
2003 Canterbury Criminal Bar Association. At a special meeting to
discuss the case called in March 2003 the Canterbury Criminal Bar Association
voted unanimously to recommend that the government establish a Royal Commission
of Inquiry into the case, presided over by a judge or judges from outside New
Zealand.
2003 Petition. On 24 June 2003, a petition organised by National MPs Don
Brash and Katherine Rich calling for a royal commission of inquiry into the
case was presented to parliament. Its signatories included retired high court
judge Laurence Greig, nine QCs, former Auckland police chief Bryan Rowe, nine
professors of law, historian Michael King, and many experts in relevant
scientific, legal and social fields. It also included two previous prime
ministers of New Zealand. In all, 140 highly prominent New Zealanders signed.
During a period of approximately ten days, eight hundred other members of the
public added their names to those of the prominent signatories, amongst them a
girl who had been one of the complainant children in the deposition hearings.
2003 Nigel Hampton, QC wrote about the case in the Christchurch
Press on 2 July 2003. Mr Hampton is a former Chief justice of Tonga and chair
of NZ Law Practitioners’ Disciplinary Tribunal. He argued against the Minister
of Justice’s continued call for fresh evidence before possible re-examination
of the case. Hampton said that there was little likelihood of fresh evidence
ever surfacing. He said that the evidence presented at the trial was
restricted, and that the case had never been properly examined in its entirety.
He argued that a royal commission of inquiry would allow for that to happen,
and that in essence, that was all that was required and all that was asked for.
2003 Editorial consensus. On July 5 2003, Listener editor Finlay
MacDonald joined at least ten other national, regional and metropolitan
newspaper editors who have added their voices to the call for a Commission of
Inquiry since January 2003 (the single contrary opinion being that of the New
Zealand Herald). MacDonald explained why he had personally signed the petition.
He observed that there have been no outbreaks of satanic ritual abuse
allegations since the Ellis trial despite all the overstatement surrounding the
prevalence of ritual abuse at the time of the trial. He criticised Goff’s
insistence on new evidence as being meaningless since there was no verifiable
or proper evidence presented at the trial in the first place.
It is apposite to note that many early media reports were not critical of the
verdicts (for example, the first North and South story in Sept 1993 by Cate
Brett; and the first TV stories). This reversal of opinion, after an initial
rather tabloid sensational approach is common to a few other news stories such
as the Lyprinol (green lipped mussel extract) "cancer cure", Dr Mylan
Brych’s pseudo cancer cures, and Nicky Hagar’s rather inflationary claims of a
case of massive GE "contamination" in corn crops.
2003 NZ Skeptics Inc. In September 2003 the Skeptics awarded Justice
Minister Phil Goff with the Bent Can-opener Award for refusing to yield
to calls for a Royal Commission of Inquiry. Membership of skeptics appears to
consist of a high proportion of university academics.
2005 Parliament: Justice and Electoral Select Committee. In reporting
its recommendations in August on the 2003 petitions the committee noted:
“…the committee is of the view that the operation of the legal system in
respect of this case did not inspire adequate public confidence in the
operation of the legal system. A justice system should lead to certainty. In
this case it seemed to increase the sense of uncertainty.” ... “There is
clearly public anxiety about the handling and outcome of this case.”
Back to section contents
The Eichelbaum Report
The Eichelbaum Report includes the reports of two "experts": Dr
Louise Sas from Canada, and Professor Graham Davies from England. I refer to
these as "the Sas report" and "the Davies report" and each
has its own page numbering system. In the course of preparing the Eichelbaum report, only videotapes of the
evidence presented in court by the children that resulted in guilty verdicts
were analysed by the experts. This allows for the presumption they were the
only tapes viewed by the experts and possibly by Eichelbaum himself. In
addition, this ambit was even further restricted as the tapes of the girl
(N/Zelda Cypress), who retracted after the trial, were not examined either.
Therefore Sas, Davies and Eichelbaum only viewed a fraction of the children's
accounts, as at least 127 children in total were officially interviewed. Eichelbaum provided a copy of the
depositions hearing and of only “the relevant parts of the trial record” to the
two experts.
Throughout the report, it is virtually impossible to discover which parts of
each interview lead to precisely which charge. This makes it a very difficult and confusing
document for any reader unfamiliar with the trial record. I found no discussion
of the depositions hearing in the report.
The overall structure of the Eichelbaum report is unfocused. For example, I had
to keep referring back to pages 13 and 14 for basic information on each child.
I still do not know the ages of all the children at the time of their first
formal interview (see appendix 2). After listing the items of good interviewing
practice, Eichelbaum failed to consider how the investigation measured up to
each item in turn, in order to give an overall picture of the standard of the
interviewing. Instead, we get separate summaries of the interviews, each child in
turn, in Sas’s and Davies’ reports. These analyses were not well integrated
with Eichelbaum’s separate analysis of each child, and each writer discusses
the children in a different sequence.
As already noted the Eichelbaum report has no clear summary of the detail of
what exactly was claimed by each child in relation to each charge. I would like
to examine this in more detail. This omission makes it difficult to know what
testimony was believed and what was rejected. Allegations about events outside
the childcare centre occurred later in the interview process, and are less
believable, not only because they are bizarre and unlikely, but also because
there is no corroborating evidence that the children were in the locations
claimed. For example, it is not proved that the children made more than one
brief visit to Ellis’s Hereford Street address, and on that occasion other
childcare centre staff were present (Hood pp.203 - 205). Yet some of the
testimony placing the offences at this address resulted in guilty verdicts.
In section 7 (p75 – 84) Eichelbaum summarises good practice principles for
investigating children’s allegations of sexual abuse. For the first part
(investigative practice), he seems to over-rely on Sas (p76) and focuses on
formal interview processes, giving insufficient attention to the prior
interviewing of the children by parents, police, social workers and therapists.
All of these types of interviews occurred before any formal allegations arose,
and before any charges were laid.
With regard to interviewing techniques, Eichelbaum narrows his focus to only
include the aspects that he thinks were at issue in this case (p79). In my
view, that is too limiting, as an overall picture is required. When determining
what is good practice for these formal interviews it is not clear whether he
has any more than applied the 1996 Joint NZCYPS and Police Guidelines. In this
section Eichelbaum gives no references to the scientific sources upon which
these principles of practice are based. I find this inadequate.
The Eichelbaum report contains very
brief summaries of the content of submissions by interested parties:
Counsel for Mr Ellis; The Solicitor-General, New Zealand Police and Department
of CYFS; Group of parents; the Commissioner for Children. Eichelbaum has been
criticised by commentators, such as Hood, for not taking submissions from
non-complainant families, other Civic childcare centre staff, or the family of
the child who retracted. In this regard the terms of reference may have been
too limited.
Included also is a critique of overseas reports - the Cleveland, Orkney and
Dale Akiki (San Diego) cases. Miscarriages of justice appear to have occurred
in all three, primarily due to flawed interviewing techniques. In addition,
there is reference to the New South Wales report on their public inquiry into
police corruption which included criticism of paedophile investigations.
Eichelbaum simply gives a précis of each report and later lists the points,
pertinent to criticisms leveled against the interviewing practises in the Ellis
case, in regard to good investigation and interviewing practice.
These cases will be addressed in more detail later, but it seems incredible
that Eichelbaum finds little in common with the problems reported overseas and
the Ellis case. He does not refer to the many direct comparisons as made by
others. For example, Newbold (2000 p86), Goodyear
Smith (1993b).
Back to section contents
The Terms
of Reference
Many commentators have claimed that the terms of reference in the
Eichelbaum report were not wide enough, while Eichelbaum claims in his report
that they were. They are reprinted in this report, appendix five.
The terms of reference resulted in Eichelbaum not examining photographs of the
Civic Child Care Centre (p21). I consider this to be wrong, because whilst this
may have been considered during the 1999 appeal, the layout was highly relevant
to an overall consideration of the verdicts. Davies makes this abundantly clear
in his report (p39).
"They [allegations] need to be studied in the wider context of
the investigation. For instance, do the toilet facilities at the crèche
correspond in their layout and construction to those described by the
children?"
A key term used throughout the report is "best practice." Best
practice needs to be looked at in terms of current scientific thought
and research. I would suggest an alternative term, sound practice, which
suggests a scientific rather than legal (precedence following) approach.
Eichelbaum was instructed to consult "at least two"
international experts on the interviewing of children. He consulted only
two. He refused to consult Dr Stephen Ceci, who is probably the foremost expert
in the world, judging by the number of research papers he has published in
highly regarded scientific journals. The reason given, which I find unacceptable, is
that Ceci had already expressed a tentative opinion on aspects of the case.
This viewpoint was also expressed by Justice Thorp who having noted Ceci’s
prior contribution to a television programme wrote in his 1999 opinion for the
Secretary of Justice:
“..his [Ceci’s] opinion could be of particular value. There seems no
reason why the Ministry, or Crown law if it preferred, could not seek his
opinion.”
Why not give Ceci all the information, so he can make a more informed
conclusion? Ceci’s scientific and dispassionate approach is beyond question. In
this regard, Eichelbaum failed to use the full scope of the terms of reference
available to him.
However, the central question is, did Ellis criminally abuse any of these
children? To answer this question fully and fairly, it may be necessary to go
outside the terms of reference used by Eichelbaum.
Back to section contents
The central issue
The central issue in this case is not (as often claimed by Minister of
Justice Phil Goff, in regard to any re-examination of the case) about looking
for new evidence. Many commentators have noted that there appears to be little
or no credible evidence that any crime was ever committed in the first place.
Rather, the issue is that there exists much disquiet from lawyers,
psychologists, sociologists, journalists and the public about the way the
central evidence has been gathered and subsequently interpreted. If the
professional consensus comes to a point where a majority say the verdicts are
not safe due to misinterpretation, then this would surely amount to reasonable
doubt, and give impetus toward overturning the Ellis convictions. There has
been little controversy about what the evidence is. All the interviews used in
court were taped. No one has claimed that those videos are falsified.
Everything that the jurors heard has been meticulously recorded.
I have read the claim that the scientific community is divided about the issues
(eg the Court of Appeal ruling in 1999 – see Hood P602). This claim needs to be
scrutinised. When rhetorical and unscientific reports are removed from the mix,
there may not remain any substantial differences in the conclusions of the
scientific community. This perception is well expressed by Newbold (2000 P85):
"The danger of claims based on bad research is that they can lead to a
kind of frenzy wherein suggestions of rampant sexual abuse gain popular
acceptance irrespective of their factual basis and lead to judicial and policy
decisions that prejudice human rights." And on page 86, "Perhaps the
classic example of the sexual abuse frenzy, however, is that of Peter Ellis and
the Christchurch Civic Crèche."
So, the central issue needs to be determined by looking at the conditions
under which the evidence was gathered, and the conditions existing before the
formal interviews, in order to determine how reliable that evidence was.
The individual reliability of the children involved is also relevant. This is
due to selection processes that were operating upon the children during the
investigation. The group of children who supplied allegations may represent
those who were particularly susceptible to suggestion or fantasy, and this
raises reasonable doubt over their testimony. Also, it is important to
determine if uncorroborated testimony of children alone is sufficient to allow
for safe convictions.
If the children had come to believe false allegations through interference from
adults, then all that the interviews can do is show what allegations resulted
from this process. Inadvertent memory construction in the children due to
influence of parents, police, social workers and therapists is of key concern.
The effect of the public Satanic abuse hysteria has been well argued (Hill 1998, and Hood). I
have no hesitation in looking closely at these prior conditions, and into the
selection process of choosing only the most credible allegations from the most
credible children to form the basis of the trial indictments.
All memories are a combination of direct (episodic) and indirect (generic)
elements, as well as accurate and inaccurate elements. Also, the memory system
is dynamic, and changing, so distortions may be more complex than simply
storing false information. Therefore, according to Neath (1998 p340), use of
the term false memory may not be a good choice. This report uses the
terms unreliable and inaccurate memory instead. In some
controlled experiments, some children’s statements or "memories" are
known to be false, and in this situation, perhaps, the term false memories
could be justified.
My goal is to attempt a dispassionate review of the facts, and relevant
scientific findings; then to draw conclusions justified by the facts, science
and logic. Only the reports of the two experts are reproduced by Eichelbaum in
their entirety. Thus the emphasis in this analysis is given to examining the
details of Eichelbaum’s findings and that of the experts, rather than relying
upon matter which is contained within the submissions of the not always
impartial interested parties.
The approach used is to integrate relevant research findings with the facts of
the case, and from related cases, in order to allow a greater focus on each
issue in turn. I then will give a case analysis of one of the children,
choosing one whose evidence appears to be amongst the most questionable, to
determine if it stands up to close analysis.
A priori problems
An analysis of the mechanisms of a priori bias operating within the context
of the case is required before looking at the scientific evidence.
End of section
Next section
Previous section
Back to section contents
Back to document contents