Section Eight

Expert Opinion

Contents:

(8) Expert Opinion

(8.1) Opinion in favour of Royal Commission of Inquiry into the case and/or those holding doubts in regard to the safety of the verdicts
(8.2) Those satisfied of the safety of the convictions
(8.3) Experts who have not yet given a professional opinion

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(8) Expert Opinion



If the preceding analysis is correct, then it would be reasonable to assume that some academics would have expressed doubts in regard to the safety of the convictions. It is, nevertheless, a weak argument to simply quote the conclusion of an "expert" as support for one’s own identical or similar conclusions. That is one of the classic informal logical non-sequiturs. Throughout the history of science, there have been many occasions (although perhaps in the minority) in which the majority of expert opinion has been completely and utterly wrong (eg: the use of thalidomide for pregnant mothers, the flat earth, earth centred, then solar centred views of the universe). In the field of psychology, the promulgation of faulty theories has been embarrassingly frequent (eg: split personality theories, Freud’s repressed memory theory, some theories of hypnotism, the pressure cooker theories on violence, theories about the benefits of high self-esteem, and "neurolinguistic programming"). So, for each of the experts mentioned, an attempt will be made to indicate the scholarly (or otherwise) source of their doubts; and the reasoning and evidence used. Unfortunately, many academics did not provide a statement for the public record at the time. When I approached the most important experts, most were prepared to comment.

I give these examples merely as evidence that among those experts and writers who have spent time examining this case, there is a great deal of very well reasoned doubt about the remaining Ellis convictions. This should be cause for great concern over the case.

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(8.1)     Opinion in favour of Royal Commission of Inquiry into the case and/or those holding doubts in regard to the safety of the verdicts



James Allan
(Associate Professor of Law at Otago University), specialises in constitutional law and in the philosophy of law.

John Anderson is an Auckland barrister. On 4 October 2003, he described the testimony required of expert psychiatric and psychological witnesses under section 23G (2)(1) of the Evidence Act as "opinion evidence".

George Barton QC was a Wellington barrister.

Mike Behrens QC is a Palmerston North barrister, now a judge.

Brian Brooks (Professor of Law at Victoria University), specialities include the ethics of law.

John Burrows (Professor of Law at Canterbury University)

Canterbury Criminal Bar Association voted unanimously in March 2003 to recommend that the government establish a Royal Commission of Inquiry into the case, presided over by a judge or judges from outside New Zealand.

Patricia Champion is the psychologist who criticised the work of Zelas in a Ward 24 case. I have no contact details for her.

Brian Coote is an Emeritus Professor of Law at Auckland University.

Michael Corballis ONZM (Senior Professor at Auckland University - he has also taught in Canada - An expert on perception, cognition, laterality, neuropsychology and evolution.)

"The Ellis case was driven primarily by a world-wide hysteria over the nature, extent and effects of sexual abuse. A better appreciation of psychological science, and a dose of common sense, would have led to a more reasoned outcome, and would probably not have led to Peter Ellis’s conviction".

In a review of Lynley Hood’s book on the case Corballis wrote (Listener Feb 19 2002),

"There will be people, some of them in high places, who will prefer that this book be repressed, a memory not to be recovered. For the mental health of the nation, it should be compulsory reading for counsellors, clinical psychologists, psychiatrists, the police, the judiciary and ministers of the Crown, but I suspect it won't be. And that's too bad."

Stephen Ferguson is the Christchurch Prison chaplain, and had opportunity to observe Ellis during his sentence.

James Flynn Emeritus Professor at Otago University.

Maryanne Garry is a psychology lecturer at Victoria University, Wellington. She has conducted highly relevant research into human memory, specialising in memory distortions, especially as they apply in legal settings. She has stated (Otago Daily Times, 20 October 1999)

"The jury should have been properly educated when Ellis was originally tried by allowing psychologists to discuss the research on children's memory - something that didn't happen during the trial. If we were to retry that case today, he would not be convicted."

"The idea that there is some child sexual abuse syndrome is just nonsense, wholly disproved by scientific research."

Felicity Goodyear-Smith published First do no Harm in 1993 as a result of her work as a police doctor specialising in sexual assault victims, and her work with HELP (a sexual victim support group). Her book contains many references to good scientific research (in publications such as Journal of Experimental Psychology, The Lancet, Science, Memory and Cognition, and Science). Some references are to medical or nursing journals that are perhaps of lesser weight.

I understand that when First do no Harm was published, the Ellis case was sub judice. However, Goodyear-Smith has been extremely critical of the verdicts, and said so in an overseas Journal (Goodyear-Smith 1993b). Goodyear-Smith is basing some of her observations on first hand contact with children who have been sexually abused.

Laurence Greig is a retired High Court Judge.

Stuart Grieve QC is an Auckland barrister.

Nigel Hampton QC is a Christchurch barrister

Harlene Hayne is a professor of psychology at Otago University and last year elected a fellow of the Royal Society of New Zealand. A respected research scientist in the subject of memory, she published research on childhood amnesia in 2002.

"[world-recognised memory experts] were not invited nor consulted during the original trial. Had they been invited to testify for the defence, Peter Ellis probably never would have been convicted in the first place"

Mark Henaghan, Dean of Law (Otago) Has significant doubts and has stated that Hood’s interpretation is "clearly supported by the evidence".

Michael Hill. Currently a Professor of Sociology at the University of Victoria. In his paper (Hill 1998), he considers the sociological phenomenum of moral panic. He gives many historical examples, and includes the Christchurch Civic Child Care Centre case as a modern example. He describes the special theory involving "satanic" elements, the special courts, and the search for secret tunnels or passageways, etc. He describes the spread of the unfounded satanic ritual abuse (SRA) belief (in the SRA book, Michelle Remembers, the Devil himself makes an appearance!), and the pseudo-science that surrounded it.

The logic of Hill’s approach is unassailable. There were no witches or consorting with succubae or incubi in Salem. The Christchurch case has many factors in common with the Salem trials and others like it, and in those other cases it is well-accepted that innocent people were indeed convicted. Few of these factors are present in trials where the verdicts are most certain. This gives another reason to be suspicious of the whole Ellis trial and its verdicts.

Bill Hodge is an Associate professor at Auckland University and author of Criminal Procedure in New Zealand.

Alison Jones is an Associate Professor at Auckland University and specialises in feminist theory and gender politics.

Gary Judd QC is an Auckland barrister.

Barry Kirkwood (retired Auckland university senior lecturer)

"We are living in a cargo cult country [where] magical thinking has replaced critical analysis…what we are looking at here is a major system failure. So many reputations are on the line in this case, that the authorities cannot afford to let Ellis off."

David Lange is a former New Zealand prime minister and lawyer

Gregory Newbold In his textbook, Crime in New Zealand, Newbold devotes a paragraph to the Christchurch Civic Child Care Centre case. As a criminologist, he is concerned in his analyses with distinguishing between crimes and prosecutions. If he were to assume that all prosecutions are absolute proof of crime, and that all crime is prosecuted, then any analysis may be flawed. It is in this context, that he rejects the convictions against Ellis and would not include them in, for example, his figures on the incidence of child abuse. Newbold (p274 ibid.) draws attention to the fact that a large proportion of cases of wrongful conviction involve allegations of sexual abuse. Also, Newbold has considered the known personality traits of Ellis, and points out several major differences between him, and the profile of known paedophiles. Another point that Newbold would appreciate is that unlike genuine sex offenders, Ellis was liked by the other prisoners and generally well treated.

Newbold is a senior lecturer in the Sociology Department at the University of Canterbury. As a criminologist, he advises the government on penal policy.

NZ Skeptics Inc. In September 2003 the Skeptics awarded Justice Minister Phil Goff with the Bent Can-opener Award for refusing to yield to calls for a Royal Commission of Inquiry. Membership of skeptics appears to consist of a high proportion of university academics.

John (C.J.) Nicholson is a former senior psychologist with education services in Tauranga, and former chairman of the field multi-disciplinary Child Protection Team. He wrote the following in December 2003:

"The need for a royal commission reviewing the many aspects of the Ellis case outside Eichelbaum’s terms of reference or glossed over is obvious, but requires a wide enough brief to review the place of child testimony and psychological opinion (especially section 23 of the Evidence Act) in criminal trials. Terms of reference for a royal commission should address the following:

o    What material evidence was there of sexual abuse?

o    How much opportunity over six years did Ellis have to abuse children without detection?

o    How objective were the community agencies (police, CYPS, health providers and ACC)? Was there an a priori assumption of abuse and Ellis’s guilt?

o    How consistent was the testimony of the children one with another? How much was it contaminated as the investigation progressed by parents, interviewers and support agencies with shared beliefs?

o    How much direct questioning of a leading nature took place in the children’s interviews? What does current research reveal about its likely effects on the reliability of their evidence?

o    Were there any reliability checks on child testimony as to events, times, places and people?

o    How important were the child interviews not shown to the jury?

o    How influential was the testimony of the oldest child who later retracted?

o    What role did the central psychiatric expert play in creating a subjective impression that possible abuse was actual abuse?

o    Was the trial judge biased in (a) his decisions on admissibility of evidence, and (b) implying that Ellis’s fellow childcare workers may not be innocent when he dismissed the charges against them?

o    Why were some charges reduced/sanitised?

 

It is essential that an overseas neutral legalist be appointed to chair the royal commission. The New Zealand Justice System is relatively small and judges may be reluctant to criticise colleagues or the New Zealand system or government".

Barry Parsonson Psychologist and formerly associate professor at Waikato University.

He reported on the case for Judith Ablett Kerr’s appeal. He concluded the evidence was too contaminated by the interviewers themselves in particular, as well as parents, counsellors and others to be able to be considered reliable.

"[there was] contamination [of the evidence] from external influences on the children as well as [deficiencies in] the interviewing."

Jim Pollard (retired reader in psychology at Canterbury University)

"At [the] heart [of the case] is the current inability of the New Zealand justice system to redress wrongs against a man who is almost certainly innocent of the charges on which he has been found guilty. This may well be because, at the time, the judiciary believed self-styled expert witnesses who subscribed to popular fallacies. In characteristic New Zealand style social workers here were the last to embrace the ‘paedophiles under the cot’ craze just as it was going out of fashion overseas." (2003)

"I guess the critical question, and one that the mainstream legal system has been unable to confront because of the way it is constructed, is:

If Ellis were on trial today, and if the eye-witness evidence were the same,
would he be found guilty?" -
December 2003

John Prebble Professor of Law at the University of Auckland.

Jane Rawls is a Hamilton based psychologist, who has conducted research into the effects of the Civic childcare centre case interview techniques. She found major distortions of truth resulted.

Bernard Robertson is the editor of The New Zealand Law Journal.

John Rowan QC is a Wanganui barrister.

Brian Rowe is a retired Superintendent of Police.

Donald Stevens QC is a Wellington barrister.

Ken Strongman Professor of Psychology at Canterbury University. Strongman has stated somewhat cryptically "People are easily manipulated, whether consciously or not, and that atmosphere pervaded Christchurch." (Christchurch Press 25 June 2003).

Tony Taylor Emeritus Professor at Victoria University.

Thomas Thorp is a retired high court judge, who prepared a report on the case for the Ministry of Justice in 1999.

It is well known that the Thorp report was critical of the convictions against Ellis. He wrote in his 1999 report to the secretary of Justice:

"But if the opinions of Dr Parsonson (which are the cornerstone of these
complaints) and the Ceci/Wood claim that creche/kindergarten cases involve
special hazards, prove to have general support, it would in my view be difficult to argue against the existence of a serious doubt about the safety of Ellis’s convictions."

Stephen Todd Professor of Law at University of Canterbury.

Rev David Williams is a professor at Auckland University and has degrees in law, history and theology.

Peter Williams QC is an Auckland barrister and had represented Arthur Allan Thomas.

Collin Withnall QC is a Dunedin barrister.

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(8.2)     Those satisfied of the safety of the convictions

It is only fair to balance the forgoing names with a list of those stating the opposing conclusion; that the verdicts were safe.

I may have missed someone, but I have found no research scientists who are experts on children’s memory and interviewing speaking out publicly in support of the convictions.

Wendy Ball is now a law lecturer at the University of Waikato. Ball practised in the fields of criminal law and personal injury litigation, before coming to New Zealand from Australia in 1989. Ball was appointed to a NZ northern region parole board May 2002.

After the trial, she acted as spokesperson for the complainant parents. She was a friend of Sally Ruth (Ms Magnolia, see Hood p219). Ball had opportunity to meet and acquaint Louise Sas with details of the case when both were speakers in a workshop that included the subject of multi-victim, multi-offender child abuse, (Second International Conference on Children Exposed to Family Violence, held in London (Ontario) in 1997) (see also section 1.7 iii, A Priori Bias).

Wendy Ball has made her current standpoint clear (2003).

"This is the sixth or seventh bite he's [Ellis] had of the cherry"

Emma Davies is a psychologist and senior researcher at the Institute of Public Policy, Auckland University of Technology (previously the Auckland Institute of Technology). In August 2003 (NZ Herald), she (along with Jeffrey Masson) criticised Hood’s claim that the frequency of sexual abuse had been exaggerated by some child protection workers, and that the effects had been exaggerated. They went on to claim that therefore, upon such a basis, all of Hood’s conclusions must be questionable. To their credit, and unlike Hood’s reply, they did quote extensively from the literature, albeit some of it of dubious value. Davies is married to Dr John Read, another of Hood’s critics (listed below). However, Davies and Masson did say "we cannot comment on the guilt or innocence of Peter Ellis."

Hood’s reply (13 August NZ Herald)

"As befits supporters of recovered memory therapy (now known euphemistically as abuse-focussed therapy), Jeffrey Masson and Emma Davies rely on statistics that have been either discredited or misrepresented to support their otherwise insupportable beliefs.

Nonetheless, it is pleasing to see that some members of the sex-abuse industry have been reading A City Possessed."

Masson and Davies replied 18 August that Emma Davies has never commented in public on recovered memory, and…

"Hood's letter reinforces our view that she is untrustworthy in her analysis of the issues involved in child sexual abuse."

Thomas Eichelbaum.

Ian Hassall and Beth Wood Hassall was previously commissioner for children. Beth Wood, then working in Hassall’s office, supplied Rosemary Smart the Executive Summary of David Finkelhor’s book Nursery Crimes when Smart was preparing her report on the Civic Centre (Hill 1998). Both Hassall and Wood have collaborated with Emma Davies, and (somewhat belatedly) on 27 September 2003, Hassall has called for better information on identification, prevalence and effects of sexual abuse and the reliability of children’s evidence. Wood is now advocacy manager for UNICEF NZ which has lobbied against a the establishment of a royal commission of inquiry into the Ellis case.

R Maclay Commissioner for Children, 1998- 2003.

"He was convicted, he's been before many judges, he's appealed, he's paedophile, he's sinned, he's paid his price. I want to continue to think now about the children. I have no regard for him…Is our justice system really so woefully hopeless, or worse still corrupt, as to allow such a miscarriage of justice? Or do we just have trouble believing the word of children?"

Laurie O’ Reilly was the commissioner for Children at the time of the convictions.

John Read is a senior lecturer in clinical psychology at Auckland University. He is a supporter of recovered memory theory. Read and some of his associates attempted to prevent world renowned expert on memory Elizabeth Loftus from speaking at the year 2000 annual meeting of the NZ Psychological society. Corballis (2003) describes the incident as representing "an appalling disregard for academic freedom." Read is on frequent record as being satisfied with the outcome of the trial. Retired senior lecturer Barry Kirkwood (previously at Auckland University) comments that,

"the clinical course at Auckland University is undoubtedly a great embarrassment to the administration. The academic controls and standards are lax."

While his colleagues may not agree with this, Read’s highly political stance and overt partiality has drawn adverse comment from a number of other psychologists in addition to Kirkwood and this must cast some doubt on Read’s capabilities as a scientist.

Comments in 2003 (Herald letters Aug 12) from Read:

"Three days after reading that Otago University awarded Lynley Hood an honorary doctorate, Jeffrey Masson and Emma Davies publish the first balanced analysis of the many biases in Hood's book….…this blatantly one-sided book [A City Possessed] generated a mass hysteria sucking in all sorts of usually sensible people"

However, contrary to Read’s assertion Hood’s doctorate was an examined degree.

Gordon Waugh, writing in the New Zealand Herald in 18 March 2003 effectively sums up some informed criticism on the work of Read:

"Dr John Read's latest flight of imagination (Mar 14) links hallucinations in psychiatric patients to childhood abuse and purports to compare abused and non-abused patients. He claims that nearly half of the 200 community mental health clients studied had been abused sexually or physically...

Read's "research" has consistently failed to provide independent corroboration or testable evidence of such abuse, yet has recklessly linked abuse to schizophrenia and now links abuse to hallucinations of vision and all other senses. Until he can provide acceptable proof of abuse, he has again misled the public. This reflects poorly on academic standards at the University of Auckland."

Louise Sas.

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(8.3)     Experts who have not yet given a professional opinion

Opinions of both the following two experts have already been quoted. Those opinions are not to be confused with a formal scientific assessment. Valid scientific opinion is dependent upon proper consideration of all relevant data. In the opinion of the author both these academics have highly relevant expertise and would be good choices for further consultation into the reliability of the Children’s testimony in the Christchurch Civic Child Care case.

Dr Maryanne Garry lectures at Victoria University, Wellington. She has conducted research into human memory, specialising in memory distortions, especially as they apply in legal settings. She is one of the most highly qualified scientists working within in the scientifically relevant field in New Zealand, and could be asked to re-evaluate the interviews for reliability.

Harlene Hayne professor of psychology at University of Otago.

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