Introduction

Section Contents:

Summary of the case history
Public Criticism of the case and verdicts
The Eichelbaum Report
The Terms of Reference
The central issue

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Introduction



Summary of the case history

On 20 November 1991, only 17 days after the Sunday News newspaper featured an article that claimed that satanic ritual abuse was rampant in New Zealand, Sally Ruth, a mother of an infant attending the Christchurch Civic Child Care Centre, made to supervisor Gaye Davidson the first complaint of "inappropriate sexual behaviour" against Peter Ellis. Ellis, 33, was an experienced, qualified pre-school teacher employed by the childcare centre. Ellis was suspended from work the following day. Ruth, referred to by author Lynley Hood as Ms Magnolia, formally complained to police on 25 November. Her child did not disclose abuse to specialist interviewers during the course of subsequent investigation and was not party to later court proceedings. A mass meeting of childcare centre parents was held in December, and rumours fuelled by gossip and media reports flew about amongst the parents and Christchurch citizenry. The first formal allegation made by a child arose in January 1992, but this child had never been enrolled in the Civic childcare centre, and was not a subsequent witness at the trial. On 23 March 1992, the Holmes television show presented an item on the childcare centre. During that item, Karen Zelas (the prosecution’s expert witness) talked about the possibility of abuse at the childcare centre, and listed behaviours that could indicate abuse. On 31 March, there was another significant meeting of parents in Knox Hall, at which a flyer listing "indicators of sexual abuse" was handed out to parents.

Eight months later, at a depositions hearing in November 1992, Peter Ellis and four female colleagues faced 60 charges of sexual offending against 20 children in their care at the Christchurch Civic Child Care Centre. Included was a charge that Ellis and one of the women co-workers, Debbie Gillespie, had sexual intercourse, in full view of the children, in the hall outside the toilets on childcare centre premises. In another charge, they were said to have all danced naked in a circle with the children, singing cowboy songs with a guitar. The only charge against the co-workers that was dismissed at depositions was the one claiming Gillespie had sex with Ellis.

Between the depositions and the trial, the crown solicitor, Brent Stanaway, had the options of bringing new charges (based on the same evidence), re-laying charges dropped at the depositions, or of dropping some or all charges. Stanaway dropped six complainant children as witnesses, and reduced the number of charges involving the remaining children. Two parents withdrew their children as witnesses (Hood Chapter 11). Consequently one female worker was discharged.

On 6 April 1993, still during pre-trial hearings, the three remaining female co-workers were discharged. Justice Williamson reluctantly discharged the three women on grounds that included that the evidence was insufficient, that there was a potential for prejudice against the accused women, and that an "unavoidable delay" would result in hardship to the child witnesses. Later in April Ellis was indicted on 28 charges. Many charges related to children of parents who were counsellors, social workers or therapists. Of the complainants whose accusations resulted in conviction, three of the seven were children of such parents (Haden 1997). According to Hood (p200) five of the parents of these seven children worked in the sexual abuse field.

By June, the judge had further dismissed three charges against Ellis (one child denied the allegations in court and another had stated that the interviewer had "taught" her what to say). Ellis was indicted on charges of various acts of ritual and sexual abuse of the children, and then convicted on sixteen counts. Not guilty verdicts were returned for the remaining nine. On 22 June he was sentenced to 10 years imprisonment.

Ellis appealed against his convictions in 1994 and as a result the three convictions relating to child complainant "N/Zelda Cypress" were quashed as the girl had retracted. She was one of only four of the eleven complainants who had no not-guilty verdicts returned on charges relating to their allegations. Of these four, only one other had resulted in more than two guilty counts. Child N/Cypress was the eldest and on that account had been stressed as being particularly reliable by the prosecution. Following this appeal only 13 of the original 28 counts that had made it to trial remained. The number of children related to the charges had been reduced from 20 to 6. The Court of Appeal rejected criticism of the interview techniques.

In December 1997, Ellis’s Counsel, Judith Ablett Kerr petitioned the Governor General for a pardon or alternatively, to return the case to the Court of Appeal (Hood p596-). During 1998 Ablett Kerr applied to extend the scope of reference for the appeal, and also applied for bail for Ellis. The case returned to the appeal court in 1999.

In January 1999, a report was then commissioned for the Secretary for Justice by former judge Sir Thomas Thorp. It raised concerns that the interview techniques may have been flawed due to inappropriate questioning and suggestion. Finally, in October, the Court of Appeal hearing dismissed the appeal, saying that the judge had placed ‘no undue restriction on the defence’. However, it also expressed reservations in regard to some of Zelas’s testimony (Hood p602). Furthermore it suggested, on no less than four separate occasions, that a commission of inquiry could better evaluate aspects of the case.

On 2 February 2000 Ellis completed his sentence. He had refused to apply for parole, or to take any therapy, stating that both were inappropriate, as he was innocent. In March the Eichelbaum Ministerial Inquiry was established and its report was released in March 2001.

A long awaited book by Lynley Hood, A City Possessed, appeared in 2001. The book had been expected to be published earlier, but the finished work was lengthier than stipulated within the contract between Hood and her publisher, Canterbury University Press. The publisher wished to abridge the work and a subsequent dispute resulted in the book being published by Longacre Press. The Minister of Justice, Phil Goff, publicly refused to read Hood’s book. It subsequently won first prize in the non-fiction and reader's choice sections of the Montana Book Awards 2002. In 2003 Hood was awarded a doctorate in literature from the University of Otago for this book and three other works. Two of the examiners said she would have received the doctorate for A City Possessed alone.

In 2002 (May) Val Sim, chief legal counsel to the Minister of Justice, prepared a report on Hood’s book for Phil Goff. The report looked at some of Hood’s major claims and took a contrary position to that of the recent tide of reviews favourable to Hood (e.g. that of criminologist Professor Newbold 2001). Sim’s report is a legal analysis, and as such it dismissed all of Hood’s major claims in terms of there having been a miscarriage of justice. Most specifically it surveyed Hood’s work for the appearance of any new evidence.

In August 2003, publisher Barry Colman published in the Sunday Star Times (a national Sunday newspaper) transcripts of the evidential interviews that were conducted with three of the children whose testimony resulted in convictions.

On 16 August 2003, two of the six children, Child X/Bart Dogwood and Z/Kari Lacebark, now teenagers, publicly replied in the Dominion Post newspaper to the criticism, and stood by their testimony, that had been published the week earlier.

In response to raging public controversy the Minister of Justice referred two petitions calling for a Royal Commission of Inquiry into all aspects of the case to Parliament’s Justice and Electoral select committee. This happened on the 3 September 2003. More than one hundred prominent New Zealanders had signed the first of the petitions.

After an unprecedented 23 months of consideration the committee delivered its non binding recommendations on 8 August 2005, a day or two before Parliament arose and one month prior to a general election. Although it did not recommend a commission of inquiry the committee did recommend that the path of appeal to the Privy Council be cleared for Ellis and that a formal body to examine possible miscarriages of justice be established, such as had already been set up in the UK.

In April 2006 Ellis’s counsel Judith Ablett Kerr announced an appeal would be lodged with the Privy Council despite, eight months out from the Justice and Electoral select committee’s recommendations, there still being no indication from the Attorney General that such an application would be allowed.

Howard Broad, who as a police inspector in 1992 played a significant role in the original investigation, was appointed as Commissioner of Police and became the New Zealand’s highest paid public servant.

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Public Criticism of the case and verdicts

There has been a steady stream of public criticism of the verdicts from many different sources. A summary of some of the significant reports in the public arena will outline the sorts of concerns that Eichelbaum would need to address in order to satisfy the public that the matter has now been closed. To my knowledge the only other verdict to receive this sort of negative review is that of Arthur Allan Thomas.

The Christchurch Press after initially publishing an article reporting satanic ritual abuse (SRA) allegations, and the allegations against Ellis, a series of articles by court reporter Martin Van Beynen severely criticised the verdicts.

1993 First do no Harm (a book of 167 pages) was published by Dr Felicity Goodyear-Smith. Because the case was sub judice at the time, she published the chapter directly criticising the Civic centre case in the American Journal of the Institute for Psychological Therapies (Goodyear Smith1993b). In it, she severely criticised the way the evidence was gathered and analysed on scientific grounds and made direct comparisons with overseas cases.

1995 Assignment TV documentary programme Ellis Through the Looking Glass, interviewed Professor Stephen Ceci about the case, and reversed the spin of previous programmes from belief to disbelief. Videos of some of Ceci’s relevant experiments were shown.

1995 Michael Hill a sociologist at Victoria University and expert in the social phenomenon of witch-hunts called for an Inquiry into the case. Hill was to follow this up in 1998 with his treatise Satan’s excellent adventures in the Antipodes.

1996 North and South published Second Thoughts on the Christchurch Civic Crèche case by David McLoughlin. An earlier article had not expressed much doubt. This one certainly did.

1996 NZ Skeptics The 1995 TVNZ Assignment documentary critical of the Civic childcare centre child abuse case was singled out for accolades at the Skeptics annual conference. David Mcloughlin also received awards for his work in the documentary and for his follow up North and South article (see previous entry).

1997 Sunday Star Times Frank Haden’s article on June 22 did not beat about the bush. "How on earth can this abuse case have happened" was the headline. Since that article Haden has periodically written and questioned the convictions.

1998 Satan’s excellent adventures in the Antipodes by Michael Hill published in Issues in Child Abuse Accusations 1998 10. In this article Hill traced the development of ritual abuse dogmas in the two decades following 1980. Hill rationalises that the forces driving Civic prosecution had roots in the panic resulting from such imported belief systems.

1999 Thorp report (for the Secretary of Justice) came out, and was quoted in the media. It was written by retired high court Judge, Sir Thomas Thorp in response to the petition for a pardon. This considered reports from Hamilton psychologist Barry Parsonson, and some comments from Cornell University psychologist and child researcher Professor Stephen Ceci. Thorp urged the Justice Minister or Crown Law office to seek a formal opinion from Dr Ceci.

Journalist Warwick Roger, (Metro writer and ex- editor) published a criticism of the way the case was conducted. Unfortunately, I did not keep a copy. It was around this time.

2000 Crime in New Zealand was republished in a substantially revised edition. This is a criminology textbook, by Sociology Professor Dr Greg Newbold from Canterbury University. I quote from this in several places in this report.

2001 A City Possessed by Lynley Hood. Hood’s book won first prize in the non-fiction section of the Montana Book Awards 2002. At 672 pages it is the most detailed single volume overview of the case yet published. I quote extensively from it.

2001 New Zealand Law Journal published a review of Hood’s book by an Australian Lawyer. It concluded (p361) that "It should focus our attention on necessary reforms".

2002 New Zealand Law Journal (in February) published an editorial significantly more favourable to Hood’s conclusions, "no one … can be happy that the convictions are safe." It was also scathing of some shortcomings of our legal system discussed by Hood.

"If…you argue you are innocent and have only been convicted because of misjudgement…the court of appeal will refuse to exercise the power parliament intended it to have."

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

2003 Petition. On 24 June 2003, a petition organised by National MPs Don Brash and Katherine Rich calling for a royal commission of inquiry into the case was presented to parliament. Its signatories included retired high court judge Laurence Greig, nine QCs, former Auckland police chief Bryan Rowe, nine professors of law, historian Michael King, and many experts in relevant scientific, legal and social fields. It also included two previous prime ministers of New Zealand. In all, 140 highly prominent New Zealanders signed. During a period of approximately ten days, eight hundred other members of the public added their names to those of the prominent signatories, amongst them a girl who had been one of the complainant children in the deposition hearings.

2003 Nigel Hampton, QC wrote about the case in the Christchurch Press on 2 July 2003. Mr Hampton is a former Chief justice of Tonga and chair of NZ Law Practitioners’ Disciplinary Tribunal. He argued against the Minister of Justice’s continued call for fresh evidence before possible re-examination of the case. Hampton said that there was little likelihood of fresh evidence ever surfacing. He said that the evidence presented at the trial was restricted, and that the case had never been properly examined in its entirety. He argued that a royal commission of inquiry would allow for that to happen, and that in essence, that was all that was required and all that was asked for.

2003 Editorial consensus. On July 5 2003, Listener editor Finlay MacDonald joined at least ten other national, regional and metropolitan newspaper editors who have added their voices to the call for a Commission of Inquiry since January 2003 (the single contrary opinion being that of the New Zealand Herald). MacDonald explained why he had personally signed the petition. He observed that there have been no outbreaks of satanic ritual abuse allegations since the Ellis trial despite all the overstatement surrounding the prevalence of ritual abuse at the time of the trial. He criticised Goff’s insistence on new evidence as being meaningless since there was no verifiable or proper evidence presented at the trial in the first place.

It is apposite to note that many early media reports were not critical of the verdicts (for example, the first North and South story in Sept 1993 by Cate Brett; and the first TV stories). This reversal of opinion, after an initial rather tabloid sensational approach is common to a few other news stories such as the Lyprinol (green lipped mussel extract) "cancer cure", Dr Mylan Brych’s pseudo cancer cures, and Nicky Hagar’s rather inflationary claims of a case of massive GE "contamination" in corn crops.

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

2005 Parliament: Justice and Electoral Select Committee. In reporting its recommendations in August on the 2003 petitions the committee noted:

“…the committee is of the view that the operation of the legal system in respect of this case did not inspire adequate public confidence in the operation of the legal system. A justice system should lead to certainty. In this case it seemed to increase the sense of uncertainty.” ... “There is clearly public anxiety about the handling and outcome of this case.”

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The Eichelbaum Report

The Eichelbaum Report includes the reports of two "experts": Dr Louise Sas from Canada, and Professor Graham Davies from England. I refer to these as "the Sas report" and "the Davies report" and each has its own page numbering system. In the course of preparing the Eichelbaum report, only videotapes of the evidence presented in court by the children that resulted in guilty verdicts were analysed by the experts. This allows for the presumption they were the only tapes viewed by the experts and possibly by Eichelbaum himself. In addition, this ambit was even further restricted as the tapes of the girl (N/Zelda Cypress), who retracted after the trial, were not examined either. Therefore Sas, Davies and Eichelbaum only viewed a fraction of the children's accounts, as at least 127 children in total were officially interviewed. Eichelbaum provided a copy of the depositions hearing and of only “the relevant parts of the trial record” to the two experts.

Throughout the report, it is virtually impossible to discover which parts of each interview lead to precisely which charge. This makes it a very difficult and confusing document for any reader unfamiliar with the trial record. I found no discussion of the depositions hearing in the report.

The overall structure of the Eichelbaum report is unfocused. For example, I had to keep referring back to pages 13 and 14 for basic information on each child. I still do not know the ages of all the children at the time of their first formal interview (see appendix 2). After listing the items of good interviewing practice, Eichelbaum failed to consider how the investigation measured up to each item in turn, in order to give an overall picture of the standard of the interviewing. Instead, we get separate summaries of the interviews, each child in turn, in Sas’s and Davies’ reports. These analyses were not well integrated with Eichelbaum’s separate analysis of each child, and each writer discusses the children in a different sequence.

As already noted the Eichelbaum report has no clear summary of the detail of what exactly was claimed by each child in relation to each charge. I would like to examine this in more detail. This omission makes it difficult to know what testimony was believed and what was rejected. Allegations about events outside the childcare centre occurred later in the interview process, and are less believable, not only because they are bizarre and unlikely, but also because there is no corroborating evidence that the children were in the locations claimed. For example, it is not proved that the children made more than one brief visit to Ellis’s Hereford Street address, and on that occasion other childcare centre staff were present (Hood pp.203 - 205). Yet some of the testimony placing the offences at this address resulted in guilty verdicts.

In section 7 (p75 – 84) Eichelbaum summarises good practice principles for investigating children’s allegations of sexual abuse. For the first part (investigative practice), he seems to over-rely on Sas (p76) and focuses on formal interview processes, giving insufficient attention to the prior interviewing of the children by parents, police, social workers and therapists. All of these types of interviews occurred before any formal allegations arose, and before any charges were laid.

With regard to interviewing techniques, Eichelbaum narrows his focus to only include the aspects that he thinks were at issue in this case (p79). In my view, that is too limiting, as an overall picture is required. When determining what is good practice for these formal interviews it is not clear whether he has any more than applied the 1996 Joint NZCYPS and Police Guidelines. In this section Eichelbaum gives no references to the scientific sources upon which these principles of practice are based. I find this inadequate.

The Eichelbaum report contains very brief summaries of the content of submissions by interested parties: Counsel for Mr Ellis; The Solicitor-General, New Zealand Police and Department of CYFS; Group of parents; the Commissioner for Children. Eichelbaum has been criticised by commentators, such as Hood, for not taking submissions from non-complainant families, other Civic childcare centre staff, or the family of the child who retracted. In this regard the terms of reference may have been too limited.

Included also is a critique of overseas reports - the Cleveland, Orkney and Dale Akiki (San Diego) cases. Miscarriages of justice appear to have occurred in all three, primarily due to flawed interviewing techniques. In addition, there is reference to the New South Wales report on their public inquiry into police corruption which included criticism of paedophile investigations. Eichelbaum simply gives a précis of each report and later lists the points, pertinent to criticisms leveled against the interviewing practises in the Ellis case, in regard to good investigation and interviewing practice.

These cases will be addressed in more detail later, but it seems incredible that Eichelbaum finds little in common with the problems reported overseas and the Ellis case. He does not refer to the many direct comparisons as made by others. For example, Newbold (2000 p86), Goodyear Smith (1993b).

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The Terms of Reference

Many commentators have claimed that the terms of reference in the Eichelbaum report were not wide enough, while Eichelbaum claims in his report that they were. They are reprinted in this report, appendix five.

The terms of reference resulted in Eichelbaum not examining photographs of the Civic Child Care Centre (p21). I consider this to be wrong, because whilst this may have been considered during the 1999 appeal, the layout was highly relevant to an overall consideration of the verdicts. Davies makes this abundantly clear in his report (p39).

"They [allegations] need to be studied in the wider context of the investigation. For instance, do the toilet facilities at the crèche correspond in their layout and construction to those described by the children?"

A key term used throughout the report is "best practice." Best practice needs to be looked at in terms of current scientific thought and research. I would suggest an alternative term, sound practice, which suggests a scientific rather than legal (precedence following) approach. Eichelbaum was instructed to consult "at least two" international experts on the interviewing of children. He consulted only two. He refused to consult Dr Stephen Ceci, who is probably the foremost expert in the world, judging by the number of research papers he has published in highly regarded scientific journals. The reason given, which I find unacceptable, is that Ceci had already expressed a tentative opinion on aspects of the case. This viewpoint was also expressed by Justice Thorp who having noted Ceci’s prior contribution to a television programme wrote in his 1999 opinion for the Secretary of Justice:

“..his [Ceci’s] opinion could be of particular value. There seems no reason why the Ministry, or Crown law if it preferred, could not seek his opinion.”

Why not give Ceci all the information, so he can make a more informed conclusion? Ceci’s scientific and dispassionate approach is beyond question. In this regard, Eichelbaum failed to use the full scope of the terms of reference available to him.

However, the central question is, did Ellis criminally abuse any of these children? To answer this question fully and fairly, it may be necessary to go outside the terms of reference used by Eichelbaum.

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The central issue

The central issue in this case is not (as often claimed by Minister of Justice Phil Goff, in regard to any re-examination of the case) about looking for new evidence. Many commentators have noted that there appears to be little or no credible evidence that any crime was ever committed in the first place. Rather, the issue is that there exists much disquiet from lawyers, psychologists, sociologists, journalists and the public about the way the central evidence has been gathered and subsequently interpreted. If the professional consensus comes to a point where a majority say the verdicts are not safe due to misinterpretation, then this would surely amount to reasonable doubt, and give impetus toward overturning the Ellis convictions. There has been little controversy about what the evidence is. All the interviews used in court were taped. No one has claimed that those videos are falsified. Everything that the jurors heard has been meticulously recorded.

I have read the claim that the scientific community is divided about the issues (eg the Court of Appeal ruling in 1999 – see Hood P602). This claim needs to be scrutinised. When rhetorical and unscientific reports are removed from the mix, there may not remain any substantial differences in the conclusions of the scientific community. This perception is well expressed by Newbold (2000 P85):

"The danger of claims based on bad research is that they can lead to a kind of frenzy wherein suggestions of rampant sexual abuse gain popular acceptance irrespective of their factual basis and lead to judicial and policy decisions that prejudice human rights." And on page 86, "Perhaps the classic example of the sexual abuse frenzy, however, is that of Peter Ellis and the Christchurch Civic Crèche."

So, the central issue needs to be determined by looking at the conditions under which the evidence was gathered, and the conditions existing before the formal interviews, in order to determine how reliable that evidence was. The individual reliability of the children involved is also relevant. This is due to selection processes that were operating upon the children during the investigation. The group of children who supplied allegations may represent those who were particularly susceptible to suggestion or fantasy, and this raises reasonable doubt over their testimony. Also, it is important to determine if uncorroborated testimony of children alone is sufficient to allow for safe convictions.

If the children had come to believe false allegations through interference from adults, then all that the interviews can do is show what allegations resulted from this process. Inadvertent memory construction in the children due to influence of parents, police, social workers and therapists is of key concern. The effect of the public Satanic abuse hysteria has been well argued (Hill 1998, and Hood). I have no hesitation in looking closely at these prior conditions, and into the selection process of choosing only the most credible allegations from the most credible children to form the basis of the trial indictments.

All memories are a combination of direct (episodic) and indirect (generic) elements, as well as accurate and inaccurate elements. Also, the memory system is dynamic, and changing, so distortions may be more complex than simply storing false information. Therefore, according to Neath (1998 p340), use of the term false memory may not be a good choice. This report uses the terms unreliable and inaccurate memory instead. In some controlled experiments, some children’s statements or "memories" are known to be false, and in this situation, perhaps, the term false memories could be justified.

My goal is to attempt a dispassionate review of the facts, and relevant scientific findings; then to draw conclusions justified by the facts, science and logic. Only the reports of the two experts are reproduced by Eichelbaum in their entirety. Thus the emphasis in this analysis is given to examining the details of Eichelbaum’s findings and that of the experts, rather than relying upon matter which is contained within the submissions of the not always impartial interested parties.

The approach used is to integrate relevant research findings with the facts of the case, and from related cases, in order to allow a greater focus on each issue in turn. I then will give a case analysis of one of the children, choosing one whose evidence appears to be amongst the most questionable, to determine if it stands up to close analysis.

A priori problems

An analysis of the mechanisms of a priori bias operating within the context of the case is required before looking at the scientific evidence.

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