Section Six

A Fair Trial?

Contents:

(6) A Fair Trial?

(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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(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."

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(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.).

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(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.

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(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).

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(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).

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(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.

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(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)

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(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".


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(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.

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(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


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(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.

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(iii)       Warning to the Jury about children’s evidence

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.

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(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).

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(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).

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(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.”

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(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.

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(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)

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(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.

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(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.

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(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.

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(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.

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(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.

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(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 in November 1992.

o    Keith McKenzie, aged 71, was charged and convicted of indecently assaulting a minor. He was fined $2,500 and later struck off the medical register, as he was a registered doctor at the time.

o    David Mendelssohn, aged 48, was charged and convicted of indecently assaulting three minors. He was sentenced to four years in prison.

o    Ulrich Schmid, aged 52, was charged and convicted of sexually assaulting two minors. He was sentenced to one year in prison after a retrial.

o    Richard Parker, aged 45, was charged and convicted of attempting to rape a minor. Sentenced to four years and five months in jail.

o    Henry Stonex, 51, was found guilty of indecently assaulting a minor. He was sentenced to nine months jail.

A later conviction followed as victims told their stories, years after the events took place.

o    Kenneth Smith, 75, charged and convicted of indecently assaulting two minors. Sentenced to 200 hours community service and had to pay damages to each minor of $1,500. January 1995 – North Shore District Court.

All the names of the children involved and their testimonies were suppressed. The complainants came together in March 1990 to make their complaints following a meeting organized by one of those subjected to the abuse. In 1998, in reaction to police confiscating computer equipment from Centrepoint after finding pornography stored in it’s database, Sarah Smuts-Kennedy (NZ actress with a high profile) voluntarily spoke out about the abuse she had suffered at the hands of Bert Potter. She was concerned that the community is still operating and the same thing could happen to children again.

The civic case was similar in that several adults were accused, pornography was looked for by police, and there were meetings of alleged victims.

There were very significant differences. In the Ellis case, no pornography was found in the possession of any accused. No admissions of guilt from alleged perpetrators were made. The alleged offenders were also much younger, and not members of a close-knit community that openly preached sexual freedom. It is possible that police had cases similar to the centrepoint one in mind when investigating the civic case. The obvious differences may have been overlooked..

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(6.10)   Police misconduct

Eade’s questionable relationships with the Civic childcare centre parents, and one of the involved DSW staff did not come out during the trial. Early in the investigation, Eade unsuccessfully sexually propositioned at least one mother (of the first child to formally make an allegation). After the case, he had sexual affairs with two of the childcare centre mothers, and a DSW employee. This brings into question his impartiality. He may well have been trying to please these women for personal reasons. He spoke to the children formally, and one can assume informally. He may have had cause to support the mothers’ allegations or fears when speaking to the children, rather than investigating without fear or favour. Zelas, the prosecution, Justice Williamson, and Eichelbaum clearly had excessive confidence in the quality of the police investigation.

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(6.11)   A conviction illustrating the preceding points

The case of complainant child Z/Kari Lacebark is a most instructive one in this case. It reveals CPM and Great Paedophile Ring believers persisting doggedly in the face of mounting evidence to the contrary. The four guilty verdicts resulting from this child’s testimony made her an effective prosecution witness. (X/Bart Dogwood and N/Zelda Cypress were next, with three guilty verdicts each, but all of Zelda’s were quashed when she retracted. Zelda was presented first in court, so the prosecution, and as a consequence the jury, presumably regarded her as the most credible).

Ms Z/Lacebark, a librarian, was well acquainted with parent Ruth/D/Magnolia, who had been instrumental in organising the many parent meetings, both formal and informal, before the trial.

In November 1991 Ms Ruth told Ms Z/Lacebark that Ellis had abused her son. After attending the first parents’ meeting, Ms Z/Lacebark questioned her daughter and no allegations were forthcoming.

In December 1991 Ms Z/Lacebark attended another meeting of Civic childcare centre parents concerned about possible abuse by Peter Ellis.

In February 1992, Ms Ruth told Ms Z/Lacebark that child H (not a complainant) had said that Peter had shown her his penis in the toilet at the Civic childcare centre (Eichelbaum report p49). Ms Z/Lacebark put this to her daughter directly as a statement full knowing that this was the wrong way to elicit the truth. Z/Kari Lacebark then agreed with the statement and also implicated another child. The allegations were immediately passed on to the police.

Z/Kari Lacebark was formally interviewed seven days later by Sue Sidey. She was then aged five, and it was six months since she had last attended the Civic childcare centre. Most of the alleged events would have occurred a year or more before the first interview. That lengthy time lapse in itself is sufficient grounds to question whether the memories would even exist. In total there were to be six interviews of the child.

The First Interview

This interview lasted 45 minutes. It has since been published by Colman (2003) and it was played in full to the jury at the trial. (for Colman aliases see appendix 2). It was clear then that Z/Kari Lacebark had been "groomed’ (Sas’term) by her mother as Kari introduced the subject before the initial formalities were even completed. Davies’ report describes that at the start of the interview, Kari "seems to have a rather uncertain grasp of the formal distinction" [between truth and lies]. The child then alleged that Ellis "showed me his penis in the toilet…sticked it out in the side of his body…" This suggests a lack of knowledge of male anatomy.

Due to prosecution argument, the jury may have believed that Kari’s allegations had sexual content that could have only arisen from her having been sexually abused. Kari stated that Ellis’ penis went "in my mouth" adding, "it feeled rough" and "baby stuff came out of it." Yet when questioned about this, she said, mummy had told her about it. Then she continued that it happened "lots of times"…"only on Fridays and Mondays" (Davies p28).

Throughout this interview, the child displayed none of the feelings of disgust or trauma that the prosecution alleges result from abuse. Research suggests that whilst an act such as this is probably not traumatic to children, it nevertheless may not be particularly pleasant, and would surely have seemed strange and possibly disgusting. After only 15 minutes she became restless, and later "show[ed] increasing signs of wanting to terminate the interview" (Davies p29). The lack of emotion, the clear indication that the source of allegations was the child’s mother, and the lack of any convincing detail should have been enough to abandon these interviews, and to next closely question the mother, rather than the child.

The Second interview

In this interview anatomically correct dolls were introduced after a 25 minute play session. Z/Kari Lacebark remarked that she didn’t like being at the interview because "it was really a bit too long." There were inappropriate optional answer and forced choice questions asked. (Davies p29)

The Third interview

This interview was, as were all the other interviews, clearly preceded by further discussions between Z/Kari Lacebark and her mother, who later admitted to doing this. As Davies points out, "Z [Kari] by now knows the score and interrupts the preliminaries saying ‘I know lots of things to do with Peter.’" Davies goes on to state, "The use of ‘know’ in this context may be significant in that it may not imply first hand knowledge." A plan of the house made with toys should according to Davies be checked for accuracy. This has not been done. Anatomically correct dolls were introduced and Kari illustrated a physically impossible scenario with them.

The Fourth interview

This interview resulted in a charge and (still standing) conviction (this forms the basis of this illustration): that Ellis "... between May 1989 and July 1991…did indecently assault...at an unknown address where an unknown man put his penis on her vagina." This interview is quoted in detail in Hood (p319 –320). Sue Sidey ignored Z/Kari Lacebark’s statement that Ellis had not taken her out of the childcare centre anywhere besides Willowbank. Sidey then suggested the venue to her; "I think you’ve been to his house before." That question is a clear breach of good practice. Kari then provided false detail by saying that Ellis lived by himself (he did not) and that his family did not love him (now obviously untrue – Ellis’s mother has stood by him all the way). When asked about "Peter’s bad friends" Kari said she knew about that, "because mummy telled me." This obvious lead was ignored by Sidey. One can only conclude Sidey operated with a strong bias at this point (and there are earlier examples). Sidey then asked, "what about his bad friends…are they men or women?" To which she received the reply, "men and women."

Later in the interview, Z/Kari Lacebark alleged that a man named Joseph "teased’ her with his penis. When an anatomical doll was produced, Kari indicated that she had not seen pubic hair before. There is no mention of this fact in Sidey’s report of the interview. Nor is there any mention of it in Eichelbaum’s or Davies’ analyses of the interview. It is therefore rather unsurprising that Sas also seemed to have felt this that the incident did not warrant mention in her report either.

Kari:    "What is it?"

Sidey: "Have you ever seen that before on a...?"

Kari:    "No.".... "What is it?"

Sidey: "What do you think it is?"

Kari:    "I don’t know."..... "It’s all on it. What is it?"

We also have claims placing "Joseph" at Ellis’s Hereford Street address. The charge did not mention Hereford Street, yet that was clearly the alleged location. As Hood suggests, the prosecution must have felt that being forthcoming in the central detail of this allegation may have led to a not guilty verdict. Especially so as in addition the police could not identify the mysterious Joseph. No friend called Joseph was ever found. There is evidence of only one visit by Civic childcare centre children to the Hereford Street address (Hood p203-204). It was between August 1986 and January 1987 (Hood writes it was most likely in early January). Z/Kari Lacebark cannot have been there, as she did not begin at the childcare centre until April 1988. On the occasion of that single visit, two or three other childcare centre staff and eight to ten children accompanied Ellis. Ellis’ landlord was there, but retreated upstairs. Ellis left Hereford Street in May 1987. It follows that the alleged crime would have to have been committed at least five years before the first interview, when Kari was less than one year old. It might have been useful if Detective Eade had focused on basic facts, rather than fruitlessly searching for incriminating videos, trap doors and cages.

As Davies noted (p30), this child used adult terms ‘penis’ and ‘vagina’ and refers to input from her mother several times, which "clearly reflects adult input." In his summary (p31) Davies states,

"There is nothing in this interview that convinces me that Z [Kari Lacebark] visited Peter’s house or was assaulted by a man called Joseph."

Clearly, Davies does not think this verdict was safe. This interview was played in full to the jury.

The Fifth interview

The fifth interview took place 7 months later. It was not played to the jury. In interview five, Z/Kari Lacebark started talking about Peter’s mother as an abuser. This is unlikely, and I gather there is no evidence or likelihood that Kari ever met Mrs Ellis. After a caution that it is better to say she didn’t know than make things up, Kari went on to talk about "Andrew" hitting her, and touching her vagina with a knife in the Civic childcare centre toilets. Sidey then asked,

"... what’s it feel like having to remember these things?"

This is a dangerous question, as this can help create false memories. Later in the interview Kari stated:

"I can’t remember at the Crèche, I said that a million times."

The Sixth interview

This time, Z/Kari Lacebark claimed that a female Civic childcare centre worker touched her with a knife. When asked if anyone else did this, she said no, contradicting what she had said in the previous interview. Later in the interview she became restless, and near the end she was asked if the allegation about the childcare centre worker really happened. She did not reply. On that note the interviews ended.

Davies (p33) notes that "these two late interviews subtract from, rather than add to Z [/Kari Lacebark]’s credibility as a witness." This does nothing to explain [or encompass] the fact that the earlier allegations – ones that were accepted – arose in the smooth way as if in a continuum. If new allegations were still arising, little different in nature than the earlier ones, what cause was there to discontinue? Was it the child’s refusal to say whether the allegation really happened? These later two tapes were not shown at the trial and Davies is "not surprised" by this. The jury and the defence were not allowed to make up their own minds about the reasons for the inconsistencies and lack of credibility. Such a selective process can create a false impression in the minds of the jurors.

Yet the forgoing evidence from Z/Kari Lacebark resulted in four convictions out of four charges (Hood p484).

o    That Ellis put his penis in her mouth (count 20) at the Civic Child Care Centre

o    Ellis touched her "vaginal area" with his penis (count 21) at the Civic childcare centre

o    Ellis touched her "anal area" with his penis (count 22) at the Civic childcare centre

o    "an unknown man put his penis in her vagina" at "an unknown address. This allegation arose in the fourth interview." (Hood p612). Eichelbaum discounted without mention the fact that Davies was unconvinced.


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(6.12)   Conclusions

I conclude that the trial had little chance of success in negating the effect of the massive public prejudice, fear and misinformation that prevailed at the time. Much of this public hysteria had become focused in a belief that a ring of paedophiles practising SRA had been operating somewhere in Christchurch. When the Civic childcare centre case broke, this fear became focused on the Civic childcare centre. This has been established as historical fact in Hood’s book, and she has clearly shown that many professionals as well as some parents involved in the case subscribed to this satanic ring theory in varying degrees. With this prejudice leaking right through into the courtroom, there was little chance of a fair trial.

Both the media, and sexual abuse "experts" such as Karen Zelas can be seen as culpable for broadcasting scientifically unproven theories about "signs and symptoms" of abuse and satanic ritual groups.

Decisions taken by the Crown Prosecutor and rulings before and during the trial by Justice Williamson resulted in most of the ludicrous excesses of the satanic theory being kept from the jury. That only one of the original accused faced trial, was in itself, a bias mechanism, as it made it appear as though the prosecution really believed that there was only one ordinary paedophile. This belief was clearly not the case in the minds of most of the police, social workers, parents, and probably the judge himself.

The rulings were in many cases breaches of natural justice. These breaches included applying limits to the showing of videotapes (possibly constraining the defence), allowing the theory of symptoms of abuse to be presented as evidence without any scientific evidence or scientific basis, and rulings that the meetings between Civic childcare centre parents were "entirely proper". Allowing Detective Eade to present his totally unscientific "schedule of behavioural matters" to the court appears to be a breach of protocol that may amount to a breach of justice.

In the trial, a mass of relevant facts were never mentioned to the jury: The full extent of possible sources of contamination to the children’s testimony, Detective Eade’s propositioning of parents, the parallel accusations made at another Crèche, and the expert witness being scared off prior to the trial, and much more besides. After the trial, it was revealed that two jurors had undeclared connections with the case. It is this incomplete consideration of all relevant factors surrounding the trial and case that forms the basis of Hood’s book and many of the appeals, including the 2003 petition to the House of Representatives.

Williamson chose not to warn the jury about the intrinsic unreliability of the evidence given by young children and the increase in this unreliability over time and with prolonged questioning. This reflects a lack of proper training for our judges and poorly considered law that does not reflect current known scientific knowledge in regard to the reliability of children's evidence; or a deliberate bias. We have a right to expect our judges and lawmakers to know these things, considering the amount of taxpayer money invested in their training and salaries. I would expect an intelligent judge to notice these facts merely as a result of his/her experience in the courtroom. Even if Williamson had spent most of his career trying cases involving only adults, and had insufficient experience of child witnesses, then it should have been all the more reason for him to be cautious.

The appointment of Zelas as an expert witness was inappropriate due to her involvement with the interviewing and her lack of appropriate scientific credentials.

In all, there was no fair trial. The fact that Eichelbaum is so confident that the verdicts were safe in the light of all this means that he, too, lacks proper relevant knowledge and training in matters (scientific) relating to conducting trials that feature child witnesses.

End Section Six

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