Section Ten

Discussion – consequences

Contents:

(10) Discussion - consequences

(10.1) Treatment of the other accused childcare workers
(10.2) Psychological science and forensic interviewing system
(10.3) Psychological science and forensic interviewing individuals
(10.4) Other sexual abuse workers
(10.5) Appointment of expert witnesses
(10.6) The 1989 Evidence Act amendments
(10.7) The terms of reference – Civic Child Care Centre layout
(10.8) The statute of limitations
(10.9) Eichelbaum
(10.10) Other documents for review
(10.11) Overturning the convictions
(10.12) Ministry of Justice failures
(10.13) Why did the legal appeals fail?
(10.14) History of Injustices
(10.15) The Unfair Dismissal claim
(10.16) Improving the Safety Net
(10.17) Final note

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(10) Discussion – consequences


The Judge shall not instruct the jury on the need to scrutinise the evidence of young children generally with special care nor suggest to the jury that young children generally have tendencies to invention or distortion.

Evidence Act, Section 23h (c)



If my conclusions are generally valid then many important issues of public concern are raised. Areas of concern include the granting of qualifications, appointment systems and issues of professional discipline and accountability. When viewed in the light of this investigation Barry Kirkwood’s assessment (section 8.1) of a "massive system failure" and of a "cargo cult mentality" does not seem far fetched. Kirkwood has noted that certain individuals in positions of responsibility have also performed very badly, even when poor systems are taken into account. For that reason, as well as identifying the systemic failures involved this report names those culpable. In some cases, the issues are expansive, and all the relevant facts and arguments have not been gathered into this document. In those instances, this section provides suggestions for further consideration, and the questions are left open, perhaps to be better addressed by a Commission of Inquiry. As an independent writer, it would be presumptuous of me to make recommendations, but the following issues might be worthy of consideration by an Inquiry and/or relevant institutions.

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(10.1)   Treatment of the other accused childcare workers

It is worth bearing in mind that there were very serious consequences to the lives of all the other civic childcare workers, especially the others who faced very similar charges to those against Ellis, based on exactly the same kind of evidence. They may have only just escaped trial and possible convictions not because the prosecutors, police and judge thought them innocent, but because the jury may have been seen as not likely to be convinced of their guilt, or some other reason. After all, they were well-presented, well-organised, assertive women. If this is so, the manner in which they were formally accused merits examination by a royal commission

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(10.2)   Psychological science and forensic interviewing system

It is not at all clear that the interviewing of young children in these cases has sufficiently improved since the Ellis trial.

Mike Corballis (2003) comments

"In our universities, there is …a strong tradition of…research…which [is] directly relevant to the Ellis case. This work seldom features at [NZ Psychological] society meetings, and may not be widely known to the judiciary or to the public"

Frequent attempts by the writer to talk to any psychologist/s who may advise CYPS on interviewing techniques have failed. In effect, apart from some unscientific comment in regard to current interviewing protocols (which was supplied by a social worker), I have encountered a wall of silence. No explanation for this has been offered by CYPS.

It would seem better in future to ensure that university based scientific researchers such as Maryanne Garry (Victoria), Mel Pipe and Harlene Hayne (Otago), or Barry Parsonson (ex-Waikato) are providing an input. Currently, the Psychological Society is clearly not a reliable resource. The Ministry of Health (which provides reliable medical advice to the public and others on medical matters) could perhaps act in an advisory capacity.

Faust and Ziskin (1988) suggest that

"certifying bodies could conduct objective evaluation of the clinician’s [presumably also scientist’s] performance on a representative sample of cases that can be verified against objective data."

They conclude with a warning,

"The courts, having learned to distrust clinicians’ claims, may refuse to admit testimony based on truly useful knowledge and methods despite more than adequate supportive studies."

It is important to ensure that psychologists, interviewers, police and judges have an openly discussed and publicly acceptable policy that describes their position on the balance between necessary care taken to avoid false conviction, and on allowing too many false acquittals. Whilst the Ellis case represents one extreme, there are examples of the other extreme. Lyon (1999) quotes a psychologist Ralph Underwager claiming that

"[i]t i s more desirable that a thousand children in abuse situations are not discovered than it is for one innocent person to be convicted wrongly" and that "[p]aedophiles can boldly and courageously affirm what they choose."

Another example, closer to home, from the Reekie rape case (in which Dougherty was at first convicted, then had his conviction overturned). Some of the police were reported to have thought at one stage that the victim may have been making most of her story up.

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(10.3)   Psychological science and forensic interviewing individuals

Karen Zelas
(who is a psychiatrist, but has had a major role in the case) appears to have displayed a reckless disregard for poor interviewing techniques. She states (personal correspondence November 2002) that

"I happened to provide external clinical supervision for the DSW evidential interviewers. This meant that they attended me on a regular basis to discuss and review their work… Responsibility for their work rested with DSW…not with me."

The latter part of this statement could be regarded as an attempt to escape personal responsibility for a poor job for which she should be able to accept responsibility, and assumedly, for which she was well paid.

CYPS might like to take a look at Zelas’s work on this and other cases including the Wellington Geoff Scott one.

Cathy Crawford seems to have performed particularly badly as an interviewer

Lynda Morgan has changed name to Libeau and apparently still works for CYPS.

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(10.4)   Other sexual abuse workers

Rosemary Smart
wrote a report for the Christchurch City Council that appears to be full of pseudo-science. The report was very damaging to the Civic childcare centre. It has been alraedy discussed (in Sections 1.4 and 1.5), and it played a part in the closure of the centre. Smart’s work may need to be further scrutinised.

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(10.5)   Appointment of expert witnesses

Again, as the forgoing stated, it is important to consult university scientists, as distinct from those who are only clinical practitioners. The ideal premise that all experts ought to be impartial seems to have broken down, with clinicians being pitted against sceptical scientists, and with little consequent room for agreement. An example of this might be the scientifically based Parsonson report being perhaps outweighed by American Psychologist Constance Dahlenberg, who it seems appeared in person at the second appeal. Parsonson has published relevant research in well-recognised scientific journals. The credentials of Dahlenberg need looking at by any future inquiry.

If a higher standard of scientific standing is demanded of expert witnesses, then more convergent and impartial findings may be achieved between expert witnesses. The current level of disagreement is unacceptable, and if it cannot be improved, consideration would have to be given towards not allowing psychologists to appear as expert witnesses.

Corballis (2003) gives some reassurance

"The problem is not to eliminate psychological testimony, but rather to separate…good science from bad science. This is something that universities do all the time, in hiring (and firing), in promotion and in awarding research grants. University academics know which journals publish reputable research and which do not…consensus can usually be found."

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(10.6)   The 1989 Evidence Act amendments

Clauses in the Evidence Amendment Act 1989 included

Section 23 g:

[Expert witnesses are allowed to testify on matters that include...] (c) Whether any evidence given during the proceedings by any person... relating to the complainant's behaviour is, from the expert witness's personal experience or from his or her knowledge of the professional literature, consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.

Also Section 23 h (c):

(c) the Judge shall not instruct the jury on the need to scrutinise the evidence of young children generally with special care nor suggest to the jury that young children generally have tendencies to invention or distortion.

Attention needs to be given towards repealing sections 23G and 23H of the Evidence Act. Section 23G allows prosecution expert witnesses to describe certain behaviours, such as bedwetting, as being "consistent with sexual abuse". This analysis has shown that this has the potential to mislead jurors. Section 23H appears to almost recklessly disregard known research data about child suggestibility and memory..

Hood discusses the effect of the 1989 amendment to the Evidence Act. On page 545 Hood writes,

"In a 1990 judgement on the admissibility of muddled videotape disclosures elicited by prolonged and probing questioning, the Court of Appeal ruled that the purpose of the new legislation was ‘to ensure that the old technicalities of evidence…even the contents of evidence in matters such as hearsay shall not necessarily prevail.’".

She then continued that the court ruled

"...that evidence as to whether a child’s behaviour was consistent or inconsistent with that of sexually abused children of the same age ‘will usually be especially important in assisting the jury to evaluate the truth of the complainant’s evidence.’"

Sim (2002) has pointed out that this abuse of logic is sanctioned by section 23G added to the Evidence Act in 1989. On page 6 of her report, she states,

"the expert witness may express on opinion on whether any evidence relating to the complainant’s behaviour is consistent or inconsistent with the behaviour of sexually abused children of the same age group."

Scientists do use consistency tests to see if a model of behaviour can explain all the available relevant data. These tests seem to be confused in the minds of our law-makers with tests that determine the probability that an event actually occurred, given certain conditions. In addition, the law-makers are incorrect if they have assumed that any particular type or types of behaviour have been proved to be a reliable indicator that abuse has occurred. This viewpoint seems to be commonplace and persists, a recent example being in April 2000 when Judge Doherty stated in a sentencing address that a child showed "classic symptoms of serious sexual abuse" (Christchurch Press, 27 Nov 2003).

It bears restating that serious consideration will need to be given towards amending this Act again. Compulsory warnings about the unreliability of children’s testimony should be required from judges addressing juries. Unless suitably qualified psychologists can be found to address the court about the conditions affecting the reliability of children’s testimony, none should be allowed to give evidence. Expert psychologists should have carried out practical research in the area and have published it in reputable scientific journals.

If our courts have abandoned the correct use of evidence and standards of proof in sexual abuse cases, then in my opinion the courts are of little use to our society in determining these cases.

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(10.7)   The terms of reference – Civic Child Care Centre layout

Gaye Davidson was able to provide a sketch of the layout for this report, and photos of the centre are currently available. Some convictions are based on children alleging that abuse occurred outside the toilets. This is highly unlikely. In the 1999 appeal it was argued by Ellis’s counsel that the non-disclosure of the photographs was one factor in an unfair trial. It is inexplicable in the light of Davies’ and Parsonson’s (1999b) comments, that Eichelbaum and his two experts were not furnished with both plans and photographs.

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(10.8)   The statute of limitations

Prior to the Ellis case, the statute of limitations was lifted allowing historical cases of sexual abuse to come to trial. There have been several where the alleged events were said to have occurred over twenty years prior to litigation. Where the only evidence is one person’s verbal memories that were "recovered" during therapy long after the alleged event, it is questionable that their allegations should be considered reliable enough to put to a legal trial. Their argument is weakened by not speaking up at the time, whatever reasons they provide for not doing so. The Ellis case was one in which a number of children "recovered" their memories of abuse long after the time of the alleged events, and had been subject to therapy, and parental questioning, etc before their allegations were made. Loftus (1993) states:

Statutes of limitations, which force plaintiffs to initiate claims promptly, exist for good reason: …They exist in recognition that with the passage of time, memories fade and evidence becomes more difficult to obtain…When much time has passed, defendants find it hard to mount an effective defence.

In this connection, it appears to me that as Loftus is a recognised world authority on memory, we were precipitate in lifting these limitations without proper scientific evidence to support the change, and in the face of strong scientific evidence to the contrary.

A writer in the Economist, England (reported in the Press, Christchurch 25 Jan 1997) concluded,

"The rules of evidence are there for good reasons. They have been established over the centuries to protect innocent people from imprisonment. The same is true of statutes of limitation. Natural though it is for legislators to wish to hunt down sex offenders, there is no justification for doing so in a way such as this, which is liable to result in unsafe and unjust convictions. The recovered-memory bandwagon needs to be trundled sharply out of the courts that have been unwise enough to let it in."

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(10.9)   Eichelbaum

There is a clear point that flows from my conclusions that the remaining Ellis convictions are not safe; that there are deficiencies in the Eichelbaum report that led him toward the wrong conclusion.

Corballis (2003) has noted, "It seems extraordinary that no department of psychology in this country was consulted over the provision of expertise in the Eichelbaum [report], or even…in the original trial."

With hindsight, it would have been better to appoint someone with better knowledge of science than Eichelbaum, and better able to know the difference between the advocacy approach of Louise Sas and a real scientist. In the terms of reference, he could have been compelled to consult two heads of psychology departments.

I would like to see Parliament pass a vote of no confidence in the Eichelbaum report.

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(10.10) Other documents for review

In 1999 a petition prepared by Ellis’s lawyer, Ablett Kerr, was referred to Sir Thomas Thorp. Later that year the case was referred to the court of Appeal for the second time. Ablett Kerr produced affidavits from psychologists Barry Parsonson, Dr Lamb (from the UK) and Professor Bruck. The complete Parsonson report has been presented to the select committee (2003) for consideration. It includes a literature review and an analysis of many of the key interview videotapes and transcripts from the civic case. Presumably, the Dr Lamb was Michael E. Lamb, author of "investigative Interviews of Children" published in 1998. Both Lamb and Bruck’s documents could be sought for examination for this document and by the select committee, and (if it goes ahead) the Inquiry.

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(10.11) Overturning the convictions

Law changes may be necessary to avoid a repetition of mistakes made throughout the course of this case.

It is likely to still take some time to clear Ellis’s name. Newbold (2000 p243) states,

"once a person is convicted of an offence, undoing the conviction is extremely difficult…In the Thomas case, without the dogged determination of the retrial committee, which waged an unremitting and thankless battle for nine years...[Thomas] would never have been exonerated."

He mentions that in spite of the fact that no credible evidence links Thomas to the murders, most police and crown prosecutors who were involved still believe Thomas is guilty.

Unfortunately, in the Ellis case, there was no planted cartridge case, although the evidence against him has already been torn to shreds. The fact that the police have spoken to Ellis recently (2002) suggests that they are fixed and intractable in their belief that Ellis is guilty. It could also, however, have pointed to the fact that some insatiable person/s were pursuing Ellis, and the police had no choice.

Justice minister, Phil Goff has held the line that new evidence is required before a pardon can be considered, and that no new evidence came before the appeal court judges. However, Lyon (1999 page5) reports that in the American Kelly Michael case,

"In June of 1998, the court held that the research Bruck described constituted "new evidence" proving that suggestive interviewing practices "forever tainted" the testimony of the child witnesses, necessitating a new trial at which the court would not allow the child witnesses to testify."

On page 42 (ibid) Lyon describes the same decision being made by the Massachusetts Superior Court judge in the Fells Acres day care case.

It is precisely that kind of new evidence that this document contains in regard to the civic case.

Lynley Hood has asserted that "The Minister of Justice does not need the judiciary's permission before he can instruct the Governor-General to pardon Peter Ellis and establish a commission of inquiry." (Letters to the Editor Otago Daily Times). Hood is calling for a royal commission of inquiry to be set up. Looking at the history of Arthur Allan Thomas, [link to report of the Royal Commission, pdf 4.1 M bytes, right click and ‘save as’] at the end of the saga, the commission  did turn up some sensible conclusions, despite all that had gone before. However by then Thomas had already been pardoned.

Another option could be to overturn the verdict. The Crown could refuse to re-file charges, and could apologise. Perhaps this option would be convincing to the public. A pardon might not be taken to necessarily imply innocence in the public mind. It may not be perceived to amount to an apology either.

A further option is the Privy Council. In the Thomas case, they apparently chose to ignore the new evidence, and returned a (by then) very questionable guilty verdict. It is rare for them to overturn a criminal conviction, although there have been sporadic examples of them doing just that. The Privy Council may fail to be of assistance in overturning the Ellis convictions, just as it failed to overturn the Thomas conviction, because there is no new direct evidence; only a new interpretation of the evidence based on science, not all of that new either.

If the Ellis convictions are overturned, then we can move on and learn the lessons made manifest.

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(10.12) Ministry of Justice failures

Val Sim produced a small paper for Justice minister Phil Goff on Hood’s book. This is discussed previously here. Her advice can be considered faulty and superficial in the light of the conclusions of this document.

At the time of writing (Sept 2003) Justice Minister Phil Goff has just been awarded a "bent can opener" award from the NZ sceptics. The government needs to take note of this considering that the membership of sceptics appears to consist of a high proportion of university academics. He has always had the option of ordering a full commission of inquiry or a pardon. His choice of advisors, and refusal to read Hood’s book can be seen as inadequate for a justice minister.

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(10.13) Why did the legal appeals fail?

Lynley Hood (2001) discusses both appeals at length. Hood states that during the first appeal, Panckhurst (QC for Ellis) "showed that the allegations on which Ellis was convicted contained no reliable central detail whatsoever, yet the Court failed to acknowledge this attack, or to examine the interviews to determine this. At the second appeal, she states that this failure continued.

Perhaps it is pertinent that even Arthur Allan Thomas could not get the Appeal Court to act in his favour. In the end, Prime Minister Muldoon had to issue a pardon.

The problem appears to be that our appeal system is too narrow in its scope. In order to settle matters properly, anything at all which could have a bearing on the verdict(s) needs to be mandated by law as being part of an appeal process.

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(10.14) History of Injustices

Newbold (2000 p244) states that

"there have been numerous examples of police evidence tampering and corrupt investigative practices, spanning at least three decades."

The best known is the case of Arthur Allan Thomas, who was convicted of a double murder in 1971. A later commission of Inquiry found that police deliberately planted a cartridge case because, for whatever actual reason, they wished to secure a conviction against Thomas.

The saga ran thus:

1971 The Thomas Retrial Committee brought many anomalies in the evidence to light, and after a petition, there was an appeal that failed.

1972 A "factually flawed report" (Newbold 2000, p241), from retired judge McGregor, concluded that no injustice had occurred. It went back to the Court of Appeal, and a new trial was ordered.

1973 Thomas was convicted again.

1974 A petition to the Governor General was referred to the Court of Appeal, which recommended no further action.

1978 It went to the Privy Council. That failed. British author David Yallop’s book was published.

1979 Prime Minister Muldoon ordered a report from QC Adams-Smith. Finally, this report recommended a pardon, and the Governor General offered a pardon that year.

1980 Royal Commission of Inquiry found that Thomas was innocent, and the evidence against him had been fabricated (Newbold 2000).

According to Newbold (quoting from books written by the lawyers involved), the reasons it took nine years and four appeals include:

o        Perjury from crown expert witnesses who "used a variety of desperate tactics, some of them illegal."

o        The creation of false rumours.

o        Police perjury and planting of evidence.

In the Ellis case, safeguards against this problem should have been in place, and seen to be in place. A warning to the jury by the judge, in regard to the reliability of uncorroborated evidence, especially that of children, is clearly essential for safe justice.

Over-zealousness and/or bias by police and initial intractability of the judicial systems, as illustrated in these cases, is also clearly evident in the Ellis case.

Given such precedent, the problem may be that our Courts of Appeal are set up in such a manner that they are unable to correct certain types of mistakes.

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(10.15) The Unfair Dismissal claim

The women Civic childcare centre workers are still out of pocket for their legal expenses. I understand that this is also in relation to their Employment Court action (and the subsequent appeal by the Christchurch City Council) for unfair dismissal. These women also deserve full compensation and apology.

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(10.16) Improving the Safety Net

When all else fails, a pardon (mercy plea) can be sought by petition to the Governor General. However, it turns out that bureaucrats within the Ministry Justice again make the real decisions.

Warren Young, deputy secretary of Crime Prevention and Criminal Justice, confirmed (Christchurch’s The Press 28 May 2003) the ministry uses a "weeding out process" to determine whether any outside expertise will be sought. Controversial or complex petitions are often handled in-house by ministry lawyers, then referred to a QC or retired judge for peer review. Alternatively, officials might encourage the Minister to appoint a QC or retired judge to do the whole assessment and provide direct advice.

This process failed Arthur Allan Thomas, and the strong case made by Rex Haig in December 2001 was also unsuccessful. The Haig petition included statements from twelve people implicating star prosecution witness David Hogan as the real murderer of Southland fisherman Mark Roderique. Hogan had been given a $13,000 police reward and immunity from prosecution by the police.

Minister of Justice Phil Goff says that a justice ministry review is currently (2003) considering reforming the legislation, along the lines of the British 1997 Criminal Cases Review Commission that followed the "Birmingham Six" miscarriage of justice.

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(10.17) Final note

Ellis himself should have the last word

"I’m angry that I could be prosecuted for abusing unknown children at unknown places at unknown times. Where are all the children L said we abused with her? Where is Andrew’s body? Why hasn’t he been reported missing? The interviewers assumed if a Peter was mentioned, it was Peter Ellis. N [both L and N are McLoughlin’s psuedonyms] had bruises on his knee at one interview and told Sue Sidey ‘Peter did it.’ But it couldn’t have been me. I’d been arrested long before. She didn’t ask him the obvious – ‘Peter who?’ They never did." (McLoughlin 1996).

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