Section Seven

The Appeals


(7) The Appeals

The First appeal
The Second Appeal

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(7) The Appeals

The First Appeal (1994)

Ellis appealed against his convictions in 1994 and as a result the three convictions relating to child complainant "N/Zelda Cypress" were quashed as the girl had retracted.

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The Second Appeal (1999)

It should be noted that in 1997 Ellis’s lawyer Ablett Kerr petitioned the Governor General for a pardon or alternatively, to return the case to the Court of Appeal. She has since stated that a Commission of Inquiry was what she has always thought most appropriate. During 1998 Ablett Kerr applied to extend the scope of reference for the appeal.

The second appeal had been preceded by the Thorp report for the secretary of justice. Thorp had raised serious questions about the interview techniques.

The case again went to the Court of Appeal in 1999.

In its judgement delivered on 14 October 1999, this court simply considered there was no new evidence, so again did not examine the scientific evidence.

"It seems unlikely that in a case in which there has already been an appeal which has been disposed of on the merits, the Court would regard itself as obliged to readjudicate upon any ground that has already been heard and disposed of unless some new matter had come to light which made a reconsideration of the ground necessary or desirable."

"In summary, as an appellate court, we are satisfied that the appellant has not demonstrated anything sufficiently new in the contamination and allied fields to justify the verdicts being set aside."
[note 57]

Our courts do not allow expert witnesses to comment on the credibility of witnesses, as the following excerpt form the ruling (introductory point 26) shows:

"neither is it legitimate for the experts to express opinions as to actual credibility - a temptation which has not been entirely resisted in the affidavits".

This attitude may not allow anything of substance or use to a jury to be stated by expert witnesses in regard to witness testimony. But such assessment is at the very core of the matter when considering the testimony of very young children. For example, to say in an interview there are signs that the child being interviewed is more suggestible than average, and misleading suggestions were applied, is clear evidence that this child is less credible, and the jury need to know this. To use the word ‘reliable’ instead of credible would fit the preceding quote. Our narrow interpretation of the scope of expert witnesses may not be shared by some overseas courts (see Endres 1997, for example, and the forensic use of the Bonn test of suggestibility in Germany).

In regard to the type of scientific analysis contained in this document, and presented to the appeal court in various forms including the review by psychologist Barry Parsonson, the court ruled (introductory note 27),

"This Court is not the forum for reviewing or evaluating the conclusions reached by the various authors, some of which understandably in these difficult and constantly developing areas are conflicting"

The appeal court judges were nevertheless well acquainted with the very critical findings of Parsonson (introductory notes 35 – 39) and also those of the American psychologist Michael Lamb (notes 40 – 46) who provided a positive review of Parsonson’s reports, and also considered various documents and videotaped interviews from seven of the children (trial complainants). Lamb noted that our interviewers were significantly poorer than those in America and England in respect to using open-ended questions (note 42). Lamb emphasised the contaminating effects of the intensive suggestive and lengthy questioning of the children by their parents prior to the formal interviews. He also criticised Detective Eade for contaminating the children’s memories.

American psychologist Constance J. Dalenberg provided an affidavit to the court on behalf of the crown critical of the work of Parsonson and Lamb. (Sometimes she spells her name Dahlenberg, hence the middle initial) The scientific credentials of Dalenberg are highly questionable. She has published in the National Center for Post Traumatic Stress Disorder’s Clinical Quarterly (for example, in 2000 on "Countertransference and the Management of Anger in Trauma Therapy") Post traumatic stress disorder is a controversial term which many critics say lacks scientific rigour. She also supports the officially discredited notion of recovered memories in her article in the Journal of Psychiatry and Law, 24(2), 229-275. She does not appear to be part of the scientific mainstream, and appears to prefer unscientific methods of inquiry. In her affidavit, Dalenberg makes the claim that a retraction is

"not evidence of the falsity of a child abuse allegation by a five year old child."

It is worth noting the use of the term evidence as opposed to proof. This of course logically leads to the absurd position that whatever a child says about sexual abuse is evidence it has occurred in fact. Dahlenberg has carried out research at the Trauma Research Institute in La Jolla, California.

In note 48, the judges say,

"Dr Dalenberg's affidavit drew three responses from the appellant's advisers .First, Dr Maggie Bruck of Maryland,United States of America, also a highly qualified and recognised expert, and secondly from both Dr Parsonson and Dr Lamb. We found none of these, nor Dr Dhalenberg's second affidavit in further response, as helpful in resolving any of the present issues"

They even entertain the bizarre notion,

"Dr Dalenberg claims that fantasy is an indicator of truthful disclosure, since fantasy is a

protection mechanism for young children who feel vulnerable and scared." (note 50 (ix))

It is quite apparent that our judges have no idea how to discriminate good science (and scientists) from bad,

"The reply affidavits of both Dr Parsonson and Dr Lamb are no more than re-assertions of their own respective positions, and also serve to demonstrate the existence of difference of approach and of analysis of research data - as is re-emphasised by Dr Dalenberg's second affidavit." (note 49)

Another conclusion is obvious: under our present legislation a Royal Commission of Inquiry is the only proper forum that can properly resolve this case. This will now have to be done. It is hoped that law changes will result, assuming an inquiry upholds conclusions similar to those of this report. These should ensure that the consideration of, and access to, good science is more effective for future trials and appeal court deliberations..

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