Petition 2002/55 of Lynley Jane
Hood, Dr Don Brash and 807
others
Petition 2002/70 of Gaye
Davidson and 3346 others
Report of the Justice and Electoral
Committee
Contents
Petitionersâ request
3
The role and approach of the committee in respect of such
petitions 3
Trial, appeals, petitions of Peter Ellis
4
Charges against other crèche workers
6
Issues arising from the case and raised by petitioners
8
Remaining legal options
15
Miscarriages of justice
17
Should a Commission of Inquiry be established?
18
National minority view
20
Appendices
A Committee procedure
22
B Summary of
A City Possessed: The Christchurch Civic Creche
Case
23
C Summary of the Ministerial Inquiry Report by Sir Thomas
Eichelbaum 41
D Evidence Act 1908 â sections 23C to 23I
48
E Public inquiries into cases of alleged child sexual abuse 53
F Evidence Bill â clauses 103 and 121
55
PETITION
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AND
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Petition 2002/55 of Lynley Jane Hood, Dr Don
Brash and 807 others
Petition 2002/70 of Gaye Davidson and 3346
others
Recommendations
The Justice and Electoral Committee has considered Petition 2002/55 of Lynley Jane
Hood, Dr Don Brash and 807 others, and Petition 2002/70 of Gaye Davidson and 3346
others, requesting that the House of Representatives urge the Government to establish a
Royal Commission of Inquiry, presided over by a judge or judges from outside the New
Zealand jurisdiction, to inquire into all aspects of the investigation and legal processes
relating to the Christchurch Civic Crèche case.
In relation to matters raised by the committee, we recommend to the Government that:
â˘
section 340 of the Crimes Act 1961 be amended so that, in an adversarial
environment, multiple allegations of sexual crimes substantially based on the
evidence of more than one complainant should not be included in an indictment
without very close consideration of the risk of the jury drawing a conclusion from
the totality of the charges rather than the necessary detailed examination of each
allegation
â˘
regulations directing the process of taking evidential videos of children are
promulgated
â˘
the Attorney-General not oppose, or opposes only in principle, a proposed
application by Mr Ellis for leave to appeal to the Privy Council; and that the Legal
Services Agency use their discretion to provide legal aid for this process
â˘
there be reform of the Royal Prerogative of Mercy system by the establishment of a
body similar to the United Kingdomâs Criminal Cases Review Authority
In relation to matters raised by the committee, we recommend to the Justice and Electoral
Committee of the next Parliament that it:
â˘
in its consideration of the Legal Services Amendment Bill (No. 2), ensure that
selection of trial counsel reflects the preferences of the accused if the accusedâs
preferred lawyer is reasonably available
â˘
examine the operation from 1990 of the 1989 amendments to the Evidence Act 1908
relating to rules in sexual abuse cases involving child complainants, and the role of
experts in the consideration of the evidence from such children, bearing in mind the
risk that professional thinking can be affected by evolving theories, and make
appropriate recommendations in its consideration of the Evidence Bill
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â˘
inquire as to whether the evolution of the trial process in the Family Court into an
inquisitorial-type hearing may not be a pointer to a better way of determining
criminal guilt in allegations of sex abuse by vulnerable children.
After due consideration, taking into account the above matters, the Justice and Electoral
Committee does not support the petitionersâ request.
Petitionersâ request
The petitioners have described the Christchurch Civic Crèche case as âone of the most
extensive, expensive and controversial criminal investigations in New Zealand history.â
Although their request for a Royal Commission of Inquiry appears to be primarily centred
on matters related to the police investigation, criminal trial processes, and appeals of
former Civic Childcare Centre worker Peter Ellis, the case also encompasses charges
against four other workers at the crèche, the closure of the crèche, and the making of laws
and regulations relating to childrenâs evidence.
The petitioners believe that there is a widespread public and professional consensus âthat
in the Christchurch Civic Crèche case the justice system failed, and failed catastrophically at
many levels, and has been unable to self-correct.â They claim that âthe proper
constitutional mechanism by which the crèche case may be fully examined and public
confidence in the justice system restored, is a Royal Commission of Inquiry.â
The lead petitioner also referred us to a book she had written on the matter. A summary of
the book, prepared by Parliamentary Library and agreed to by Lynley Hood, is appended at
Appendix B.
The role and approach of the committee in respect of such petitions
The committee considered whether or not a full committee examination of the issues
raised by the petition was appropriate. We were aware that the usual approach is that
petitions only receive full consideration if all legal avenues have been exhausted (see
âRemaining legal optionsâ below). We understand that there was significant and enduring
public interest in the matter, evidenced by overt academic and media interest and some
opinion-poll evidence. We noted that the case had already been the subject of three legal
petitions, two Court of Appeal hearings and one Ministerial inquiry. We also recognised
that the case to which the petition related raised some important matters concerning the
operation of the law which had been examined in comparable situations in overseas
jurisdictions.
The committee has tackled this matter by:
â˘
limiting submissions to two (including supplementary submissions), one from Lynley
Hood (petitioner) and the other from the Ministry of Justice;
â˘
avoiding the danger of relitigating the case itself; and
â˘
focusing on the conduct of the case and the legal environment surrounding it, the
lessons which have been learned from it, and which remain to be learned.
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Petition 2002/55 was referred to the committee on 24 June 2003 and Petition 2002/70 was
referred on 7 October 2003. This is an unusually lengthy period, but was due to the
complexity of the matter (as evidenced by its complex and lengthy route through the legal
system); the intense pressure on the committee of other, legislative, business; and latterly, a
lengthy wait for a response to two letters to Mr Ellisâ lawyer (see âIssues arising from the
case and raised by petitionersâ, âRemaining legal optionsâ, and âMiscarriages of Justiceâ
below).
Counsel for Peter Ellis has indicated to us that there has been a comparatively recent legal
development that may open up the possibility of further legal action. The possibility that
further action may be taken in respect of a matter that is under consideration by a
committee does not prevent a committee considering the matter or reporting on it.
In this context, the question of whether legal remedies have been exhausted, as required
under Standing Order 355(a), was also raised. The petition requests that a Royal
Commission of Inquiry be established to inquire into the case. In terms of the petitionersâ
direct request there are no legal remedies.
Standing Order 355(a) sets out that a petition is not in order if the petition relates to a
matter for which legal remedies have not been exhausted. In essence this requires a
petitioner to have taken up any direct appeal rights available to him or her. Petitioners are
not expected to embark upon litigation of a speculative nature. While the opportunity for
further legal action may have arisen in relation to Peter Ellisâ case, it does not make the
petition out of order on the grounds that legal remedies have not been exhausted.
Trial, appeals, petitions of Peter Ellis
Pre-trial and trial
Peter Ellis commenced employment at the Civic Childcare Centre in Christchurch in
September 1986 as a reliever. He was given a permanent position in February 1987 and
completed a 3-year child-care certificate in 1990. Following a complaint to the principal of
the crèche on 20 November 1991, Mr Ellis was placed on temporary leave and suspended
shortly afterwards. A complaint was made to the police, and the Specialist Services Unit of
the Department of Social Welfare began interviewing crèche children.
Table 1: Arrest, trial, sentencing, and release of Mr Ellis
30 March 1992
Mr Ellis was arrested and charged with indecently assaulting a
child.
26 April 1993
The jury trial of Mr Ellis in the High Court, on 28 charges alleging
indecency with 13 young children, commenced and lasted for 6
weeks.
5 June 1993
Mr Ellis was convicted on 16 charges in relation to seven
complainants.
Mr Ellis was acquitted on nine charges.
(During the trial the judge discharged Mr Ellis on three charges
under section 347 of the Crimes Act 1961.)
22 June 1993
Mr Ellis was sentenced to 10 yearsâ imprisonment.
February 1999
Mr Ellis was released from prison.
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First appeal
In 1994 Mr Ellis appealed against his convictions on the grounds that the verdicts were
unreasonable because the evidence of the children was not credible and the nature of the
interview process was unsatisfactory. He also claimed that there had been a miscarriage of
justice and that there were a number of inconsistencies involving his conviction on charges
based on earlier disclosures but acquitted of those based on later, more bizarre, allegations.
During the appeal one of the child complainants retracted her allegations.
On 8 September 1994 the Court of Appeal delivered its judgment. The three convictions
relating to the child who retracted her allegations were quashed. In relation to the
remaining 13 convictions, the Court of three judges found that a miscarriage of justice had
not been established, the appeal was dismissed and no change was made to the total length
of Mr Ellisâ sentence.
First petition and reference to Court of Appeal
Following a petition to the Governor-General on 2 December 1997, seeking a free pardon
or reference of his 13 remaining convictions back to the Court of Appeal for further
consideration, Mr Ellisâ remaining convictions were referred back to the Court of Appeal
on 4 May 1998. The Court of Appeal heard argument from counsel for Mr Ellis that the
court was not limited by the terms of the reference from the Governor-General, but could
treat the proceedings as a general appeal.
In an interlocutory judgment dated 9 June 1998 the Court held that the hearing and
determination of references under section 406(a) of the Criminal Appeal Act 1945 should
be confined to the matters in the reference.
Second petition and reference to Court of Appeal
Mr Ellis presented a second petition to the Governor-General on 16 November 1998
seeking a free pardon and a Royal Commission of Inquiry into his case or, alternatively, a
Royal Commission; and for the whole case to be referred back to the Court of Appeal. On
12 May 1999 the Governor-General referred the question of Mr Ellisâ 13 convictions to the
Court of Appeal.
In a judgment dated 14 October 1999 five Court of Appeal judges considered whether
there was sufficient new evidence to require appellate intervention. The court was unable
to conclude that a miscarriage of justice had occurred and dismissed the appeal.
Third petition and Ministerial inquiry
On 18 October 1999 Mr Ellis presented a third petition to the Governor-General seeking a
free pardon and a Royal Commission of Inquiry into his convictions. On 10 March 2000
the Right Honourable Sir Thomas Eichelbaum was appointed to undertake a Ministerial
inquiry into the reliability of the evidence given by the complainant children, in order to
assist in the resolution of the third Royal prerogative application (see Appendix C).
Sir Thomas was asked to seek and evaluate opinions from two international experts.
Professor Graham Davies of the University of Leicester, England and Dr Louise Sas,
Adjunct Professor of the University of Western Ontario, Canada performed this function.
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Professor Davies and Dr Sas both concluded that contamination was an insufficient
explanation for the body of broadly similar allegations, particularly of events at the crèche.
Sir Thomas concluded that there were no doubts about the reliability of the childrenâs
evidence which would render the convictions unsafe or warrant the grant of a pardon in
Mr Ellisâ favour.
The Governor-General declined the third application for a pardon.
Charges against other crèche workers
The investigation
Following a meeting between the owners of the crèche (the Christchurch City Council), the
police and officials from the Ministry of Education and the Department of Social Welfare
on 2 September 1992, the Ministry of Education cancelled the crècheâs licence and the
crèche was closed.
On the day it was closed, the manager gave notice to the staff that the crèche would be
closed with immediate effect and that staff were to be made redundant. The next day,
following representations from the union, these notices were replaced by notices that,
pending consultation with the union, all staff were suspended on pay for 2 weeks. That
period was later extended until the union was notified that the workersâ employment would
terminate on 22 October 1992.
On 28 September 1992, the union submitted a personal grievance claim alleging that the
council had committed an unjustified action in failing to follow the complaints procedure
in the staff membersâ employment contracts and in failing to give the workers the
opportunity to answer the allegations from the police.
Pre-trial and trial
On 10 October 1992 four other workers at the Christchurch Civic Crèche (Deborah
Gillespie, Janice Buckingham, Gaye Davidson and Marie Keys) were arrested. Two charges
were laid jointly against Deborah Gillespie and Mr Ellis, and four charges were laid jointly
against Janice Buckingham, Gaye Davidson, Marie Keys and Mr Ellis.
On 5 March 1993 the charges against Deborah Gillespie were discharged under section 347
of the Crimes Act 1961 because the complainant was unavailable to give evidence at the
trial.
On 6 April 1993 following a pre-trial application, the charges against Gaye Davidson,
Janice Buckingham, and Marie Keys were discharged under section 347 of the Crimes Act
1961. In an oral judgment, Justice Williamson gave three reasons for his decision to
discharge the charges against the women:
â˘
The evidence was of insufficient weight to justify their trial.
â˘
The potential for prejudice against the accused was so strong that they might have
been convicted for the wrong reasons.
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â˘
The unavoidable delay in their trial might have resulted in hardship to the then 7-
year-old child complainant who would have had to wait until the other trial of Mr
Ellis was completed.
Justice Williamson did not consider that any one of these reasons would on its own have
been sufficient to justify a discharge. It was the combination of the three factors which
gave rise to the decision to discharge the women.
Costs hearing
The four women crèche workers were each granted legal aid subject to the following
contributions: Janice Buckingham $12,500, Gaye Davidson $7,500, Marie Keys $4,000, and
Deborah Gillespie $1,250. The District Legal Services Committee fixed the total
remuneration for the applicantsâ counsel up to the end of depositions at a sum of $43,220.
Subsequently, the committee gave approval to the applicantsâ counsel to charge the women
directly (as permitted by section 11(3) of the Legal Aid Services Act 1991) a further sum of
$43,469.79. The reason advanced by defence counsel for seeking this approval was that the
women crèche workers were likely to be awarded substantial costs. His concern was that
the level of such an award should not be limited by the restrictions imposed on such
awards where people are legally aided. The four women agreed to this further liability being
incurred.
As a result of these arrangements, the applicants incurred liabilities which were not covered
by the grant of legal aid (Janice Buckingham $25,048.21, Gaye Davidson $21,548.21, Marie
Keys $19,548.21 and Deborah Gillespie $12,435.35).
Justice Williamson declined to award costs to the four women. In reaching his decision, he
did not consider it necessary to reach any conclusion on the propriety of the arrangements
made with the Legal Services Committee. There is no right of appeal against orders as to
costs.
Employment Court and Court of Appeal decisions
The Employment Court concluded that the crèche workers were entitled to compensation
for unjustifiable dismissal, firstly because the dismissals were not for redundancy but were
due to the council acting on a suspicion that the staff were sexually abusing children, and
secondly because of process failure in that the City Council did not give 2 weeksâ notice to
the union of termination of employment for redundancy.
The Court of Appeal overturned these decisions and concluded that there was no basis for
any finding other than that the closure of the crèche led the council to see it as a genuine
redundancy situation. The Court of Appeal considered that it was unrealistic to suggest that
the council could have embarked on its own inquiry into possible wrongdoing, and that the
council was justified in accepting the categorical statements of the police and the Ministry
of Education.
The Court of Appeal agreed that there had been a process failure because the redundancy
notices issued did not comply with the provisions of the employment contracts. This was
found to be a short-duration procedural breach from which no loss of income flowed and
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the remedy was therefore confined to compensation for humiliation, loss of dignity, injury
to workersâ feelings and any loss of benefit, totalling $83,500.
Issues arising from the case and raised by petitioners
This report identifies each issue raised by the petitioners, includes the response from the
Ministry of Justice, and then sets out the committeeâs conclusion in relation to each issue.
Arrests
The petitioners have questioned whether there was any rational or legal justification for
arresting the crèche workers.
This never appears to have been an issue at trial so there is no material on which to base
any conclusions.
However the Ministry of Justice told us that at the conclusion of the depositions hearing,
the presiding judge was required to consider whether there was sufficient evidence to
commit each defendant for trial. In the case of the four women crèche workers, this
question was relevant to the courtâs consideration of whether costs should be awarded
following their discharge. It would have been open to the judge to award costs if he
considered that the charging of the women crèche workers had been unreasonable. Clearly
at the end of the deposition hearing there was sufficient evidence to commit Mr Ellis for
trial.
The only safe conclusion available to the committee is that the police had one or more
credible narratives from complainants sufficient to justify an arrest.
Charges
The petitioners are concerned about the reshaping of the indictment, which reduced the
number of charges faced by Mr Ellis and amended others to lesser charges.
The Ministry told us that it is standard practice following a depositions hearing for the
Crown Solicitor to review the charges initially laid in the light of the evidence that emerges
at the depositions. In some cases this results in differences in the number and nature of the
charges laid in the indictment. In this case, the question of the reshaping of the indictment
was considered during the second Court of Appeal hearing.
The committee noted that it is a growing practice in cases to include representative charges
and a multiplicity of allegations, generating an omnibus trial. Administrative convenience
seems to be a significant reason for this. On that basis the committee expressed concern
about:
â˘
the number of people involved as complainants in some cases
â˘
the number of different charges handled in some cases
â˘
the application of similar fact rules
â˘
the removal of the requirement for corroboration.
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Recommendation
We recommend to the Government that section 340 of the Crimes Act 1961 be amended
so that, in an adversarial environment, multiple allegations of sexual crimes substantially
based on the evidence of more than one complainant should not be included in an
indictment without very close consideration of the risk of the jury drawing a conclusion
from the totality of the charges rather than the necessary detailed examination of each
allegation.
Access to legal aid
The petitioners questioned the decision by the Registrar to decline legal aid for Queenâs
Counsel to defend Mr Ellis at the trial.
The ministry told us that under the legal aid regime that applied at the time, decisions by
Registrars on questions of legal aid were reviewable by a judge (section 16 of the Legal
Services Act 1991). Counsel competence is also an established ground of appeal. In the
Ellis case the issue of counsel competence has never been raised either during the appeals
or in the context of applications for the exercise of the Royal prerogative of mercy.
The committee notes that the right to defend allegations is an important constitutional
right and believes that the selection of trial counsel is an issue that should not be ignored.
There is nothing to suggest counsel incompetence in this case, but a more experienced
counsel could have addressed issues differently at trial. The selection of counsel should
never be the responsibility of anyone other than the accused and the selection should be
made from the ranks of experienced counsel.
Confidence in trial counsel may well be a factor in accepting an adverse jury verdict.
Compromises in this important decision may have no assessable effect on the trial, other
than to undermine confidence in the process. This petition is essentially about a loss of
confidence in the process leading to Mr Ellisâ conviction. There should be no compromises
in the matters which contribute to confidence in process.
The Legal Services Agency told us that it has now established criteria for each area of law
that requires the demonstration of experience and competence by the practitioner before
listing can be approved. Criminal legal aid is divided into four proceedings categories to
ensure that assignments are allocated to suitably experienced practitioners according to the
complexity of the proceedings and the severity of the possible outcome for the aided
person.
The agency told us that its clients can choose their own legal aid lawyer or the agency can
choose one for them. In the 12 months prior to March 2005 the agency made 40,261
criminal assignments, of which 62.7 percent (25,755) were made to preferred lawyers of the
legally aided clients.
We consider that any public perception that Mr Ellis may not have had a fair go is
incalculably corrosive of overall confidence in our criminal justice system.
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Recommendation
We recommend to the Justice and Electoral Committee of the next Parliament, in its
consideration of the Legal Services Amendment Bill (No. 2), that it ensure that selection of
trial counsel reflects the preferences of the accused if the accusedâs preferred lawyer is
reasonably available.
Overall trial standards
The petitioners questioned whether Mr Ellisâ trial and appeals met minimum standards of
fairness and due process.
The Ministry told us that the Ellis trial followed ordinary criminal trial appeal processes and
no evidence has been adduced at any stage to indicate that Mr Ellis was not accorded
proper due process. If it could be shown that due process was not followed, this would
constitute a ground for appeal. A civil action could also be taken for a breach of the New
Zealand Bill of Rights Act 1990.
The committee wrote to Judith Ablett-Kerr QC on 22 March 2005, with a follow-up letter
on 12 May 2005, to ask whether this option had been considered by Mr Ellis. No reply on
this matter was received.
Childrenâs evidence
In 1988 a package of reforms relating to childrenâs evidence in criminal cases was
introduced as part of the Law Reform (Miscellaneous Provisions) Bill. This was an
omnibus bill, affecting more than 50 different Acts. It was introduced into Parliament
under urgency before Christmas 1988 and passed into law in November 1989.
Under this bill, sections 23C to 23I, relating to rules in cases involving child complainants,
were inserted into the Evidence Act 1908 by section 3 of the Evidence Amendment Act
1989 on 1 January 1990 (see Appendix D). These sections were later amended by the
Summary Proceedings Amendment Act 1993, the Crimes Amendment Act 1995, the
Medical Practitioners Act 1995, and the Health Practitioners Competence Assurance Act
2003.
The petitioners are critical of the 1989 package of reforms relating to childrenâs evidence in
criminal trials. They consider that it was irregular to use an omnibus bill as the legislative
vehicle for these reforms and that this resulted in inadequate parliamentary scrutiny.
The Ministry of Justice told us that, although at the time some members of Parliament
were critical of the 1989 reforms being dealt with through a Law Reform (Miscellaneous
Provisions) Bill because of their significance, the legislative procedure was consistent with
Standing Orders.
The Law Commission has considered issues surrounding childrenâs evidence in the context
of its work on the proposed Evidence Code, but has not identified any significant concerns
about the way in which the law regarding childrenâs evidence is operating. The Associate
Minister of Justice told us that the Evidence Bill, which was referred to this committee on
10 May 2005, generally follows the recommendations of the Law Commission and the
provisions of the Evidence Code. However, the bill will repeal section 23G so that the
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admissibility of expert evidence in child sexual abuse cases will be dealt with in the same
way as expert evidence in any other case.
The committee sought information on overseas cases of alleged child sexual abuse. A
summary of this information is appended at Appendix E.
Clause 103 of the Evidence Bill reflects the current law which requires the prosecution to
apply to the court in which the case will be tried for directions about the way in which a
child complainant in criminal proceedings is to give evidence-in-chief and be cross-
examined (see Appendix F).
Clause 121 also reflects the current law which deals with the giving of judicial directions in
relation to childrenâs evidence. In general, evidence given by children is to be treated in the
same way as evidence by adults, in the absence of expert evidence to the contrary.
However, in a case tried before a jury, there is provision for a special direction to be given
in respect of evidence by children under the age of 6 years (see Appendix F).
In relation to this case, the petitioners have asked whether the childrenâs evidence was
credible or contaminated by interactions between police, interviewers, counsellors and
parents, parental questioning of children, and leading and oppressive specialist
interviewing.
The Ministry told us that reliability of the childrenâs evidence was the central issue in the
Christchurch Civic Crèche case and was the subject of extensive scrutiny in the course of
the criminal trial processes. While the assessment of the credibility of complainants and
witnesses is essentially a matter for the jury, the law does provide a mechanism so that if a
verdict can be shown to be unreasonable or cannot be supported having regard to the
weight of the evidence, the evidence can be set aside (section 385(1)(a) of the Crimes Act
1961). This argument was made by Mr Ellis in the Court of Appeal in relation to the
credibility of the children and was rejected.
Bruce Squire QC told us that in determining the facts of the case the jury is obliged to
confine itself to the evidence given at trial, but otherwise what evidence it accepts as
truthful and reliable and what it does not, and the judgements it makes in that context
about the credibility of witnesses who have given the evidence, is exclusively the juryâs
responsibility.
In appeals under section 385(1)(a) of the Crimes Act the Court of Appeal has consistently
held that issues of credibility, and the weight to be given to evidence at trial, is exclusively
the responsibility of the jury. In practice, this provision, except in the rarest of cases, does
not enable an appeal to be brought on the ground that a verdict is against the weight of
evidence nor is it enough that the Court of Appeal itself might disagree with the verdict.
The committee considered, in recognising that childrenâs evidence had to satisfy certain
prerequisites before it could be given, that the outcome of the Christchurch Civic Crèche
case primarily revolved around a combination of three distinct factors, namely:
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â˘
the permissibility and protected status of âexpertâ evidence in cases of sexual
offending against young people, defined in section 23G(2)(c) of the Evidence Act
1908 and central to the case in situations where there is no objective evidence, would
be handled in a distinctly different way by courts today
â˘
the use of interview practices which in terms of number and style of interviews
would not be used nowadays when such young complainants were involved. Some
very young complainants were interviewed on a number of occasions and were asked
potentially leading questions, a combination of practices which although found in the
Eichelbaum inquiry to be commensurate with best practice at the time are not
commensurate with current practices. The prevailing view of how young children
should be questioned has changed significantly between 1991 and now
â˘
the condition of the law of evidence, especially section 23G of the Evidence Act,
inhibiting effective examination of the credibility of the accusations made by the
young children, combined with the impact of the relaxation of corroboration rules.
We recognised that these factors had the potential to cause a significant concern. When, as
in this case, these factors feed a widespread public sense of justice not done, then some risk
to the legal system results.
The Ellis case revolved primarily around findings of fact based on the credibility of the
childrenâs evidence. However, the committee accepts that it is both impossible and
undesirable to rehear the evidence in the Ellis case due to the lapse of time. The committee
therefore considers that the best that can now be achieved is to look to the future in
respect of these matters.
In this regard the committee noted that it had recently had referred to it the Evidence Bill,
a significant rewrite of current evidence law following a comprehensive law reform process.
Matters of future law could be addressed in the course of that select committee process.
Recommendations
We recommend to the Justice and Electoral Committee of the next Parliament that it:
â˘
examine the operation from 1990 of the 1989 amendments to the Evidence Act 1908
relating to rules in sexual abuse cases involving child complainants, and the role of
experts in the consideration of the evidence from such children, bearing in mind the
risk that professional thinking can be affected by evolving theories, and make
appropriate recommendations in its consideration of the Evidence Bill.
â˘
inquire as to whether the evolution of the trial process in the Family Court into an
inquisitorial-type hearing may not be a pointer to a better way of determining
criminal guilt in allegations of sex abuse by vulnerable children.
_____________________________________________________________________________________
Regulations relating to childrenâs evidence
The petitioners are concerned that no regulations have been made under section 23I of the
Evidence Amendment Act 1989 to provide for the approval of interviewers where children
are giving evidence by videotape. They claim that the absence of any such regulations raises
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serious questions about the legal status of specialist sexual abuse interviewers and the
videotaped interviews they record.
The Ministry told us that section 23I of the Evidence Amendment Act 1989 is an
empowering provision â it authorises but does not require the making of regulations. The
Ministry submitted that it would be open to Mr Ellis, or any other person convicted on the
basis of videotaped evidence, to challenge the admissibility of the videotaped evidence on
the basis that regulations governing the qualification of interviewers and the obtaining of
the childrenâs consent have not been made. There has not been any legal challenge on this
basis to date.
The committee wrote to Judith Ablett-Kerr QC on 22 March 2005, with a follow-up letter
on 12 May 2005, to ask whether this option had been considered by Mr Ellis. No reply on
this matter was received.
The committee believes that, because of the conclusions made by the Ministerial inquiry by
the Rt Hon Sir Thomas Eichelbaum, future concerns may be allayed if regulations directing
the process of taking evidential videos from children were promulgated. These would then
be subject to Parliamentary scrutiny and more easily subject to review.
Recommendation
We recommend to the Government that regulations directing the process of taking
evidential videos of children are promulgated.
Withholding of evidence
The petitioners claim that key evidence was withheld from the Employment Court, in
particular a brief of evidence that would have been presented by a Ministry of Education
manager if counsel for the City Council had decided to call him as a witness. The
petitioners claim that this evidence supported Judge Goddardâs finding in the Employment
Court that the Christchurch City Managerâs evidence was unreliable and that the crèche
staff had been unjustifiably dismissed.
The ministry told us it was not aware of any evidence that was withheld by the
Christchurch City Council during the Employment Court case. The law provides for a right
of rehearing where it is established that relevant and significant evidence has been withheld.
The committee can make no further comment on this matter.
Police practice
The petitioners are concerned about the manner in which the police conducted their
investigation into the case. For example the petitioner has raised questions about the
behaviour of the detective in charge of the investigation and what they saw as a vendetta-
like approach to Mr Ellis. If true, such conduct would be a cause for concern. An early
decision by police investigators on the guilt of a principal suspect may lead to a misreading
of evidence and such an approach has been criticised in other circumstances.
The committee notes, however, that the Ministerial inquiry by the Rt Hon Sir Thomas
Eichelbaum did not consider that it extended to police conduct.
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The Ministry of Justice told us that questions relating to the adequacy of the investigation
and the way in which the interview process was conducted were raised as arguments in
support of:
â˘
a discharge at the depositions hearing
â˘
pre-trial consideration of the evidence on application by the defence
â˘
an acquittal at trial
â˘
for a new trial at the Court of Appeal.
They were also at the heart of the terms of reference for the Eichelbaum inquiry.
The committee does not consider the Police Complaints Authority, which was a route
apparently not taken by anyone involved in the case, has the potential to satisfy those with
concerns about policing practice in this case, since the proper way to dispute, assess and
direct on evidence is contained in the various stages of trial noted in the preceding
paragraph.
The issue of the investigation process is secondary and now remote in time and we do not
recommend any action in relation to this.
Civil rights
The petitioners are also concerned that the basic civil rights of the crèche workers may
have been violated.
No evidence was provided regarding any violation of the civil rights of the crèche workers.
The law at that time provided remedies for those whose rights had been violated, including:
taking a civil action for a breach of the New Zealand Bill of Rights Act 1990 or making a
complaint to the Police Complaints Authority. But the extent of those remedies and their
nature were not entirely clear at that time.
The committee can make no further comment on this matter.
Crèche closure and compensation
The petitioners have questioned whether there was any rational or legal justification for
closing the crèche and whether all the crèche staff should have been compensated.
The Ministry of Justice told us that the issue of the closure of the crèche and the question
of compensation for loss of employment was considered by both the Employment Court
and the Court of Appeal.
The committee can make no further comment on this matter.
Ministerial inquiry by the Rt Hon Sir Thomas Eichelbaum
The petitioners have asked whether a Ministerial inquiry was the appropriate forum for an
issue as complex and controversial as the crèche case; whether the terms of reference for
the Ministerial inquiry were too narrow; whether the Ministerial inquiry was conducted
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according to the rules of natural justice; and whether the conclusions of the Ministerial
inquiry were supported by the evidence.
The ministry told us that the Ministerial inquiry was not set up to be a general review of the
case â it was intended to address specific areas of concern that might not have been seen to
have been fully resolved by the Court of Appeal. The terms of reference focused on issues
associated with best practice in interviewing children and any risks with failing to adhere to
that best practice. As the terms of reference required Sir Thomas Eichelbaum to take the
evidence given at both the depositions and the trial as the factual basis on which his inquiry
proceeded, Sir Thomas was not authorised to interview Mr Ellis, the parents of the
children, the children, or the crèche workers. However, these people were given the
opportunity to comment on the interpretation of the terms of reference, the appointment
of experts, the expertsâ reports and the substantive issues that Sir Thomas was asked to
consider. Throughout the inquiry Mr Ellis was represented by Queenâs Counsel and
although it was open to any party to the inquiry to seek a judicial review on grounds of
breach of natural justice, none did so.
Sir Thomas Eichelbaum is almost universally held in the highest regard as an experienced,
perceptive, fair and judicially wise Judge on criminal law issues. Given that Mr Ellisâ
counsel cooperated in the inquiry, the committee accepts that concerns now expressed
about the parameters of the inquiry are based on the concerns at the failure of any process
to overturn the convictions rather than a substantive criticism of this Ministerial inquiry.
Remaining legal options
Select committees usually tackle matters such as this petition when all legal avenues have
been exhausted. While recognising the extensive legal journey already taken by Peter Ellis,
we identified the following avenues which at least potentially remain open to him:
â˘
an appeal to the Privy Council or Supreme Court
â˘
a civil action under the New Zealand Bill of Rights Act 1990 to show that due process
had not been followed in his trial and appeals
â˘
an action to challenge the admissibility of the videotaped evidence on the basis that
regulations governing the qualification of interviewers and the obtaining of the
childrenâs consent had not been made
and, as identified at various places in âIssues arising from the case and raised by
petitionersâ above and âMiscarriages of justiceâ below, the committee wrote to Judith
Ablett-Kerr QC on 22 March 2005, with a follow-up letter on 12 May 2005, to ask whether
these options had been considered by Mr Ellis. No reply on these matters was received. We
regret this.
During the latter stage of this inquiry the committee received a letter from Judith Ablett-
Kerr QC, reading in part as follows:
Both
R v A
(CA 123/04, 16 December 2004) and another recent case authority give
cause to believe that it would be appropriate to pursue an application for leave to
appeal to the Privy Council.
Without limiting the scope of an intended application for special leave to appeal,
three questions arise in light of these later authorities:
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1.
Should the evidence which was before the Court under the guise of section
23G of the Evidence Act 1908 have been admitted as evidence;
2.
If such evidence was properly admitted were the Jury properly directed as
to the use they could make of such evidence; and
3.
Was a miscarriage of Justice occasioned by the failure to properly apply the
law relating to similar fact evidence.
You will be aware of course that the Privy Council will be concerned with the
ultimate issue of whether Mr Ellis received a fair trial and whether there may have
been a miscarriage of Justice.
In the past Mr Ellis and his mother have been adamant that his case should be
resolved in New Zealand by the New Zealand Criminal Justice system where the
problem arose. Mr Ellis has now been driven to the view that in order to resolve
the issues that have so heavily burdened his life for the last 14 years he may need to
place the matter in the hands of the Privy Council.
Given the length of time since Mr Ellisâ unsuccessful second Appeal and the
change of legislation which has terminated the rights of post 2003 intended
applicants to pursue an appeal at the Privy Council it is unlikely that such an
application would be well received other than in special circumstances.
The committee considered whether meeting this request would involve it in a âlegal
processâ, and was minded of the usual rules of comity between the courts and Parliament.
However, the committee does not regard a recommendation to the Attorney-General in
this regard as being part of the legal process. Indeed, neither is the Attorney-Generalâs
instruction to the Solicitor-General a part of the legal process. Instead it is in effect the
relationship between client and lawyer. The committee recommends that the Attorney-
General does not oppose the application to the Privy Council; and that the Legal Services
Agency provide legal aid for this process. It does so mindful of the cumulative effect of
the following:
â˘
the failure of Mr Ellis to have counsel of choice, even though no complaint is made
as to the way trial counsel conducted this trial
â˘
the practice of including essentially unrelated allegations involving separate
complainants in one indictment based on administrative convenience
â˘
current developments in the interviewing of child complainants by police and the
taking of evidential videos; modern practice being substantially refined from that in
Mr Ellisâ situation
â˘
the apparently contradictory decision to exclude the charges against co-workers who
were charged as parties to some of Mr Ellisâ offending
â˘
the continuing debate on the reliability of childrenâs memory, and of children in
giving evidence
â˘
the considerable sense of public disquiet in this case extending across the whole
spectrum of New Zealand society.
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Recommendation
We recommend to the Government that the Attorney-General not oppose, or opposes
only in principle, a proposed application by Mr Ellis for leave to appeal to the Privy
Council; and that the Legal Services Agency use their discretion to provide legal aid for this
process.
Miscarriages of justice
Enduring public disquiet about the Christchurch Civic Crèche case can not be adequately
addressed by an examination for procedural fairness. The preoccupation with formal
fairness â the consistent application of formal rules of trial and the law â which is at the
heart of the appeals process, coupled with the view that matters of credibility are for the
jury alone, ensures that some matters of valid public concern are only addressed with great
difficulty. In particular the picture painted by the petitioner of a society in the midst of a
mass hysteria, leading to in her view an unjust conviction, is not susceptible to normal
inquiry by the appellate process.
The committee cannot resolve the matter and we do not think that it can be resolved
today, even by Royal Commission. We have to rely on the judicial process, but we do
consider that it may be useful to consider whether an extraordinary process to address
concerns not susceptible to normal appellate scrutiny.
Bruce Squire QC advised us that counsel for Mr Ellis could have applied for a change of
venue on the basis of a prejudicial climate in Christchurch, but this was not made. The
committee was unclear as to whether this option had been considered by Mr Ellis. The
committee noted that there is not a transparent process in New Zealand for the
examination of miscarriages of justice, in spite of debate from time-to-time and in spite of
developments in that direction in the United Kingdom and other countries. While not
stating that in its view a miscarriage of justice occurred in this case, 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.
Currently claims of miscarriage of justice are dealt with by way of application to the
Governor-General for the exercise of the Royal Prerogative of Mercy. That Prerogative is
an important safeguard in our criminal justice system which provides an avenue for
convicted persons to petition the Crown for relief in cases where an injustice may have
occurred. However the system is very lengthy and lacks adequate transparency. There has
been an increase in the number and complexity of applications for the Royal Prerogative of
Mercy over the last decade, with more than 60 applications since 1996.
The committee recommends reform of this system to include the establishment of a
Criminal Cases Review Authority or equivalent body to independently examine allegations
of miscarriage of justice. Such a move would:
â˘
reinforce the constitutional separation between the power of the Executive and the
courts
â˘
reduce pressure on the resources of the Ministry of Justice
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â˘
enable the development of a centre of expertise on examination of miscarriages of
justice
â˘
be an appropriate response to the increasing complexity of claims of miscarriage of
justice.
Recommendation
We recommend to the Government that there be reform of the Royal Prerogative of
Mercy system by the establishment of a body similar to the United Kingdomâs Criminal
Cases Review Authority.
Should a Commission of Inquiry be established?
The petitioners have requested the establishment of a Royal Commission of Inquiry to
inquire into the investigation and legal processes relating to the Christchurch Civic Crèche
case.
A Royal Commission of Inquiry may be appointed to inquire into any matter of major
public importance of concern to the government of the day and is constituted under
powers conferred on the Governor-General by Letters Patent and is governed by the
Commissions of Inquiry Act 1908. Under section 2 of the Commissions of Inquiry Act a
Royal Commission of Inquiry may be appointed to inquire into and report on any question
arising out of or concerning:
â˘
the administration of the Government
â˘
the working of any law
â˘
the necessity or expediency of any legislation
â˘
the conduct of any officer in the service of the Crown
â˘
any disaster or accident involving injury or death of members of the public, or the
risk of it
â˘
any other matter of public importance.
A Commission of Inquiry cannot exercise judicial functions, although it may have limited
judicial powers. A Commission of Inquiry cannot be convened to determine the guilt or
innocence of an individual as its primary purpose. Commissions may look into offences,
but only as part of a wider investigation into matters of conduct relevant to the purpose for
which the Commission has been established.
The appointment of a Royal Commission of Inquiry is a serious step. It may, however, be
appropriate where an event or situation is so unusual or serious that no other approach will
do. Reasons for establishing a Commission of Inquiry would include the following:
1
â˘
considerable public anxiety about a matter
â˘
a major lapse in government performance
1
Setting Up and Running Commissions of Inquiry
, Department of Internal Affairs, February 2001.
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â˘
circumstances that are unique, with few or no precedents
â˘
an issue that cannot be dealt with through the normal machinery of government, or
the criminal or civil courts
â˘
an issue that is in an area too new, complex or controversial for mature policy
decisions to be taken.
The committee considered each of these criteria in turn in relation to this case.
Considerable public anxiety about a matter
There is clearly public anxiety about the handling and outcome of this case. However, in
isolation this is exceeded by levels of public anxiety about many other matters. This factor
alone cannot justify a Royal Commission.
A major lapse in government performance
This matter is not Government-related.
Circumstances that are unique, with few or no precedents
Although the combination of circumstances in this case was remarkable, it did not involve
unique circumstances and there are precedents for all of its specific elements.
An issue that cannot be dealt with through the normal machinery of government, or the
criminal or civil courts
Aspects of this criterion are potentially present, but in essence the matters under dispute
are capable of being handled by the existing legal system, or legislative reforms of that
system.
An issue that is in an area too new, complex or controversial for mature policy decisions
to be taken
This criterion does not apply.
Since the request for an inquiry does not seem to adequately meet these criteria, the
committee has instead taken a more targeted and effective approach to the issues raised by
the case. These are itemised in âIssues arising from the case and raised by petitionersâ,
âRemaining legal optionsâ, and âMiscarriages of Justiceâ above, and comprise:
â˘
recommended improvements in the legal process
â˘
recommendations to the Justice and Electoral Committee of the next Parliament,
which will be considering both the Evidence Bill and the Legal Services Amendment
Bill (No. 2)
â˘
a proposed new system for consideration of miscarriages of justice
â˘
a positive response to Judith Ablett-Kerr QCâs proposal for committee comment in
relation to a possible future appeal by Mr Ellis.
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We do not believe that a Commission of Inquiry is relevant to many of these matters, and
do believe that the recommendations of our committee are, if accepted, likely to do much
more to improve standards of justice in our nation.
Most of us also believe that it is unlikely that a Royal Commission of Inquiry conducted in
2005 could be expected to reach a better view of the facts than was achieved in 1993, given
the effect of the lapse of time on the availability and quality of the evidence. We are also
concerned about the potential impact on the child complainants and their families who
may be required to re-live their experiences in giving evidence to an inquiry. We consider
that they are entitled to expect that if the formal legal process has found no miscarriage of
justice then that is the end of the matter.
While we note the petitionersâ concerns, most of us do not recommend that the
Government should establish a Royal Commission of Inquiry into the Christchurch Civic
Crèche case.
National minority view
There are two National Party members on the committee. The Honourable Clem Simich
has taken no part in the consideration of the petition as he was one of the signatories to the
petition.
I do not wish to associate myself with the report and recommendations of the majority. I
believe the committee has followed a process inconsistent with the expectations of the
petitioners and the recommendations are inappropriate.
The petitioners made it clear in their request that they did not seek a recommendation from
the committee that Peter Ellis should be pardoned or the convictions entered against him
on 5 June 1993 otherwise vacated. Instead they sought that the Government establish a
Royal Commission of Inquiry presided over by a judge or judges from outside the New
Zealand jurisdiction, to inquire into all aspects of the investigation and legal processes
relating to the Christchurch Civic Crèche case.
The report of the majority contains a detailed history of events to date including the release
of Mr Ellis from prison in February 1999. The events have included:
â˘
a petition to the Governor-General on 2 December 1997 and reference to the Court
of Appeal
â˘
a second petition to the Governor-General on 16 November 1998 and reference to
the Court of Appeal
â˘
a third petition to the Governor-General on 18 October 1999 and a Ministerial
inquiry.
As if by a side wind the petitioners have effectively secured much of the relief which they
have sought in the present petition. That has occurred substantially by dint of the passage
of time with two events:
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â˘
The introduction on 3 May 2005 of the Evidence Bill and the detailed provisions of
that bill (which are currently open for public submission) relating to statements of
opinion, expert evidence and evidence by children. Those issues will be able to be
considered by the Justice and Electoral Committee to which the bill has been
referred in the next Parliament.
â˘
The introduction on 10 May 2005 of the Legal Services Amendment Bill (No. 2). It is
clear that a ground on which the petitioners base their claim relates to the decision by
the Registrar to decline legal aid for Queens Counsel to defend Mr Ellis at the trial.
That issue of principle will be able to be considered by the Justice and Electoral
Committee to which the bill has been referred in the next Parliament.
The petitioners are, and always were, entitled to an early decision on their petition. They
have not been well served in the present case.
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Appendix A
Committee procedure
Petition 2002/55 of Lynley Jane Hood, Dr Don Brash and 807 others was referred to the
committee on 24 June 2003. Petition 2002/70 of Gaye Davidson and 3346 others was
referred to the committee on 7 October 2003. The petitioners requested that both petitions
be heard together.
On 10 December 2003 the committee heard evidence from: Lynley Hood, Dr George
Barton QC, Bernard Robertson, and Dr Maryanne Garry on behalf of the petitioners and
the Chief Legal Counsel and Principal Legal Adviser on behalf of the Ministry of Justice.
The committee appointed Bruce Squire QC as an independent adviser to the committee in
October 2003.
Committee members
Tim Barnett (Chairperson) (Labour)
Stephen Franks (Deputy Chairperson) (ACT)
Lianne Dalziel (Labour)
Russell Fairbrother (Labour)
Dave Hereora (Labour)
Dail Jones (New Zealand First)
Moana Mackey (Labour)
Hon Clem Simich (National)
Murray Smith (United Future)
Nandor Tanzcos (Green)
Dr Richard Worth (National)
Lianne Dalziel and Hon Clem Simich absented themselves from these proceedings and
took no part in the committeeâs consideration or deliberation.
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Appendix B
Summary of
A City Possessed: The Christchurch Civic Creche Case
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Appendix C
Summary of the Ministerial Inquiry Report by Sir Thomas Eichelbaum
Sir Thomas Eichelbaum was appointed by the Minister of Justice in March 2000 to assess
the reliability of evidence against Peter Ellis given by children who attended the
Christchurch civic crèche and to report on whether there were matters which gave rise to
doubts about the assessment of the childrenâs evidence which would render the
convictions against Mr Ellis unsafe and warrant the grant of a pardon.
Sir Thomas presented his report in February 2001.
Introduction
The inquiry was not a general review of the Ellis case. There was no direction to carry out
further inquiries into the facts. The focus of the inquiry was on the obtaining of evidence
from the children including the part played by their parents and the parents of other crèche
children. Sir Thomas notes his inquiry did not extend to police conduct or alleged non-
disclosure of information (particularly photographs of the interior of the crèche and
apparent crèche activities), both of which were raised by Mr Ellisâ counsel. He took the
view these issues were outside the ambit of the inquiry.
Two overseas experts were appointed to assist in the inquiry. They were Professor Graham
Davies of the University of Leicester in the United Kingdom and Dr Louise Sas of
London, Ontario, Canada. Neither had any previous connection with the case. The experts
worked independently and were unaware of the otherâs identity until after they had
delivered their reports. Crown counsel and counsel for Mr Ellis were given the opportunity
to comment on these reports and both made substantial responses. As a result the experts
made some amendments in matters of detail.
Review of overseas reports and memoranda
Sir Thomas was asked to consider the following reports:
â˘
The Cleveland Inquiry (1987)
â˘
The Orkney Inquiry (1992)
â˘
The San Diego County Grand Jury Report (1994)
â˘
NSW Royal Commission (1997)
â˘
Law Commission Discussion paper (NZ, 1999)
â˘
Memorandum of Good Practice (UK, 1992)
â˘
Joint NZCYPS and Police Operating Guidelines
The first four reports dealt with cases of suspected child abuse and covered the
investigatory and interviewing processes used. In Mr Ellisâ 1999 appeal to the Court of
Appeal, his counsel had suggested the court evaluate the various reports of overseas
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inquiries and the operating guidelines developed since Mr Ellisâ trial. The court declined to
do so on the basis that this was not its function âas distinct from the more wide-ranging
inquiry possible with a commission of inquiryâ.
In the course of his survey on this term of reference, Sir Thomas considered materials
from the United States, Scotland, England and Australia. He found that: The New Zealand
methodology of 1991 for interviewing children in suspected abuse cases was well up with
and, in many respects, in advance of the corresponding arrangements discussed in the
overseas materials.
Whether the investigations and interviews were conducted in accordance with best
practice
Sir Thomas was directed to invite submissions from the participants. The submission on
behalf of Mr Ellis alleged:
â˘
There was a complete failure of the investigators, meaning the police team, to
prevent parental interviewing, or to identify the effects of the contamination that
occurred in this way.
â˘
The detective in charge lost his objectivity.
â˘
The Specialist Services Unit failed to act with fairness and impartiality.
â˘
There was no attempt to seek alternative sources of the childrenâs information about
abuse.
â˘
The interviewing procedures were unacceptable and the convictions owed much to
parental involvement.
â˘
There was no recognition of the special risks occasioned by mass allegation
situations.
â˘
There existed a climate of fear and hysteria in Christchurch at the time.
As noted above, a number of matters allegedly not disclosed by the police raised by Mr
Ellisâ counsel in this submission were determined by Sir Thomas to be outside the ambit of
the inquiry.
The Crown submitted that:
â˘
The interviewing was conducted properly and by professionals. The issue of parental
questioning was exhaustively explored in the depositions and at trial.
â˘
The interviewers did test the childrenâs accounts for contamination.
â˘
The defence had the right to use material the Crown chose not to.
â˘
The jury had all the relevant information about âmass hysteriaâ and mass allegations
and made its own assessment.
â˘
The risk of contamination does not equate with actual contamination.
â˘
Guidelines for interviewing in these situations represent the ideal and as such are not
absolute â a leading question will not automatically invalidate an interview although it
may have that consequence.
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â˘
Although the children were subject to more interviews than âseen as generally
desirableâ the impetus came not from the authorities but were the product of fresh
disclosures by the children.
â˘
The interviewing in the Ellis case was essentially sound.
Sir Thomas also received a submission from the Commissioner of Children and one
submitted on behalf of a group of parents.
Sir Thomas considered that it was his task to identify the relevant standards of international
practice relating to interviewing in mass abuse allegation cases. He did not see his role as
requiring him to âinclude the formulation of a âbest practiceâ protocolâ. Instead he
provided a list of elements he had identified from his reading and this included work
undertaken by Dr Louise Sas on an appropriate model for the investigative stage of a mass
abuse allegation case.
Sir Thomas noted that in relation to both questioning by parents and formal interviewing
by agencies âthere is a considerable catalogue of techniques having the potential to detract
from the accuracy of the childâs reportingâ. He went on to state âunderstandably, no means
have been found for measuring the extent to which accuracy may have been impaired in a
particular caseâ. It is generally left to the tribunal of fact to make an assessment of
reliability subject to the discretion of the trial judge to exclude evidence regarded as wholly
unreliable.
Sir Thomas went on to consider the videotaped interviews of the six âconvictionâ children.
Against each he set out salient points of evidence relevant to contamination. In this context
âcontaminationâ is confined to an examination of the conduct of the parents.
Inappropriate interviewing as a form of contamination is dealt with as a separate topic. He
summarised his review of the interviews against the list of elements noted above. The more
pertinent sections are summarised as follows:
Structure
: Under this heading Sir Thomas noted that submissions on behalf of Mr Ellis
did not maintain that structural deficiencies contributed to the outcome. The criticism was
directed almost exclusively to the interviewing itself and conduct immediately connected
with it, and the contamination said to have been caused by parents.
Use of same interviewers
: Sir Thomas noted the potential downside of many children
being interviewed by the same person. While the ideal is to have many interviewers, the
reality is that few agencies have the resources for this. However, this situation raises valid
concerns of interview bias. Sir Thomas concluded that neither he nor the experts saw any
evidence of this.
Number of interviews
: Sir Thomas concluded the criticism here was valid; not only the
number of times some children were interviewed but the length of time over which the
process continued. Had significant evidence been obtained at the later interviews, this
would have been a concern; however, this was not the case and most of the later interviews
were not played to the jury.
Testing the childrenâs accounts
: Sir Thomas thought there could have been more
probing of the childrenâs accounts in some of the interviews.
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Contamination
: By the standards of best practice, Sir Thomas noted the following
shortcomings that had been raised by Dr Sas:
â˘
There should have been a written handout for parents advising how to handle
disclosures made by their children and cautioning against sharing such information
(December 1991). Sir Thomas noted his scepticism as to whether written cautions
would have been any more effective than the verbal cautions that were given.
â˘
The content of the written handout circulated in March 1992 could have been
improved; the content may have increased concern rather then reduced it. Sir
Thomas again doubted whether a better-worded document would have allayed
concerns.
â˘
The reference to âsupport for parentsâ was problematical. While noting that parents
would support each other, Sir Thomas held the view stronger steps could have been
taken to try to limit the exchange of information between parents.
â˘
The dissemination of information about behavioural symptoms could have been
better handled.
Sir Thomas stated that despite these concerns, he did not consider their absence had made
any difference. He said âthe problem was not the absence of the right messages; by and
large they were given, and those parents who were able to control their anxiety and
maintain objectivity took them on board. Others, despite hearing the same advice, were
unable to follow it, and in some instances, deliberately declined to do so.â He suggested
that a stronger message would not have met a different response.
Sir Thomas then went on to address the issue of interaction between parents, the contact
between children, and the conduct of some parents. He noted it was to be expected that,
given the nature of the case, many parents would be in frequent contact with each other;
that this was unavoidable particularly if these parents had connections with each other that
pre-dated the case. He noted the support group meetings where some parents met regularly
and where, he felt it safe to infer, information was exchanged. Professor Davies suggested
that it would be useful to assess the contamination argument by a timeline but Sir Thomas
concluded there were too many imponderables to enable a reliable assessment to be made;
there was not enough precision as to the dates when parents or children were in contact
with one another, what information was exchanged, or when sites were visited.
A further feature which he considered was established was that some of the parents
questioned their children in a manner contrary to the advice given. To a greater or lesser
degree he concluded this happened with most of the âconvictionâ children. Sir Thomas
noted the parents were extensively cross-examined about these interviews at depositions
and at trial.
In an ideal situation, where abuse is suspected, no one would talk to the child before a
formal interview. However, in reality, the formal interview usually takes place after a
conversation between the child and its parents or other caregivers. Sir Thomas concluded
the possibility of contamination through this source is generally present: âThe issue
becomes one of degree.â He went on to state âPublished research shows however that
childrenâs accounts can be contaminated by discussion with others and it is uncontroversial
to say that the risk of such contamination should be minimised. In the present case, by any
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standards there was excessive questioning and other potentially contaminating conduct (site
visits) by parents.â
The overseas experts who were appointed to assist the review concluded the interviewing
was of an appropriate standard although it did not meet best practice standards in every
respect. However, if that degree of perfection were the test, few if any of this kind of
interview would pass the test. Sir Thomas concluded âaspects of the systems set in place
for the investigation could have been improved. However, that made no significant
difference to the outcome.â He also noted âquestioning and investigations by some parents
exceeded what was desirable and had the potential for contaminating childrenâs accounts.â
The nature and extent of risk to which any breaches of best practice give rise
Sir Thomas then moved on to discuss the interviewing processes that, in his opinion, had
imperfections. He broke these down into causative and non-causative shortcomings. For
example, if a particular allegation was brought out by a âblatantly leadingâ question, but the
tape was not played to the jury, the event could not have caused Mr Ellis any prejudice.
The nature of the videotaped interviews is transparent â what is happening, whether it is
fair or appropriate and the effect on the child are all matters readily apparent to a lay
person. All in all, Sir Thomasâ view is that the jury exercised considerable discrimination.
Despite the imperfections noted, Sir Thomas found that the evidence emerged in a credible
way. There were isolated lapses where leading questions were used and it would have been
preferable to cut some of the interviews short and the number of them down, but having
regard to the outcomes, Sir Thomas concluded Mr Ellis did not suffer any prejudice as a
result.
In reaching this conclusion Sir Thomas took into account the opinions expressed by the
two experts. Professor Davies stated the mistakes that occurred were insufficient to explain
the content of the allegations regarding events at the crèche. The reservations he expressed
affect only one of the 13 convictions. Professor Davies was careful to stress the interviews
had to be considered in the wider context of the whole of the available evidence. He would
not say that of itself the content of the interviews proved the charges against Mr Ellis (and
he was not required to express a view on that). Sir Thomas took from Professor Daviesâ
report that the tapes provided credible evidence of the offences on which convictions were
entered.
Dr Sas criticised some of the interviews but mainly those that were not played to the jury.
She considered the childrenâs evidence on which the convictions were based was reliable.
On the issue of interviewing imperfections Sir Thomas took the view
the guilty verdicts ⌠can be regarded as resulting from well-tested evidence, deserving
high weight. In general, there was a lack of connection between the shortcomings and
the allegations on which convictions were founded. I consider that the shortcomings
did not give rise to a significant risk that the convictions were founded on suspect
evidence.
On the issue of contamination, Sir Thomas noted this was the stronger aspect of Mr Ellisâ
submissions. In brief, some parents questioned their children inappropriately and the
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existence of a risk that these processes contaminated the childrenâs accounts cannot be
denied. However, Sir Thomas concluded this is a question of degree. Professor Davies
indicated that some of the more improbable incidents may have had their origins in cross-
talk between families and he considered the visits to locations may have coloured
accusations made in the later interviews. However, he did not believe that cross-talk alone
was sufficient to explain the similar accusations made particularly in relation to events in
the crèche toilets. Dr Sas examined the possibility of contamination carefully and in detail.
While recognising the presence of contamination (the over-involvement of one mother in
the investigation and the intrusive questioning of another), she did not feel the evidence on
which the convictions were based was seriously affected. Dr Sas considered that the
evidence was reliable.
Sir Thomas stated the expertsâ conclusions strongly reinforced his own opinion. He said
âthe prime opportunities for contamination occurred after the particular child had made
the disclosure leading to a convictionâ.
Sir Thomas remained unconvinced that cross-talk between parents and excessive
questioning by them could account for the detailed, similar accounts given by so many
children in separate interviews stretching over many months. This view was supported by
one of the overseas experts; the other expert concluded the evidence of the six remaining
âconvictionâ children had not been seriously affected by possible contamination.
Whether any matters give rise to doubts about the childrenâs evidence to an extent
which would render convictions unsafe and warrant grant of a pardon
Sir Thomas considered there was a need to establish a threshold âtestâ for the exercise of a
pardon given that full pardons are rare and, in this case, a re-trial is not a viable option. He
determined the appropriate approach was to require Mr Ellis to satisfy the inquiry that the
convictions were unsafe; or that on the information now available, the case against him was
not proved beyond reasonable doubt.
On this basis, Sir Thomas concluded he had no doubts that would render the convictions
unsafe. He concluded the case advanced on behalf of Mr Ellis failed by a distinct margin
and that he did not find this to be a borderline judgment. He was satisfied as to the
reliability of the childrenâs evidence. The salient points in this regard were:
â˘
In the course of the proceedings doubtful allegations and charges were weeded out.
The jury was astute in identifying those where the supporting evidence or the
method by which it emerged was open to valid criticism.
â˘
Where the number of interviews was excessive generally allegations arising out of the
later interviews did not form the subject of charges, the tapes were not played,
although available to the defence.
â˘
Such shortcomings as occurred in the interviewing process did not lead to
convictions.
â˘
Both experts considered that contamination was an insufficient explanation for the
body of broadly similar allegations particularly of events at the crèche.
â˘
The experts and Sir Thomas independently reached the view that the childrenâs
evidence in the conviction cases was reliable.
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Sir Thomas concluded the case advanced on behalf of Mr Ellis had failed, by a distinct
margin, to satisfy the inquiry that the convictions are unsafe or that a particular conviction
was unsafe. He stated âon the matters referred to me in this inquiry, I do not consider the
grant of a pardon is warrantedâ.
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Appendix D
Evidence Act 1908 â sections 23C to 23I
23C
Application of sections 23D to 23Iâ
Sections 23D to 23I of this Act apply to every case whereâ
(a)
A person is charged withâ
(i)
Any offence against any of the provisions of sections 128 to 142A of the
Crimes Act 1961; or
(ia)
Any offence against section 144A of the Crimes Act 1961; or
(ii)
Any other offence against the person of a sexual nature; or
(iii)
Being a party to the commission of any offence referred to in subparagraph
(i) or subparagraph (ia) or subparagraph (ii) of this paragraph; or
(iv)
Conspiring with any person to commit any such offence; and
(b) Eitherâ
(i)
The complainant has not, at the commencement of the proceedings,
attained the age of 17 years; or
(ii)
The complainant is of or over the age of 17 years and is mentally
handicapped.
23D Directions as to mode by which complainantâs evidence is to be givenâ
(1)
Where, in any case to which this section applies, the accused is committed for trial,
the prosecutor shall, before the trial, apply to a Judge of the Court by or before
which the indictment is to be tried for directions under section 23E of this Act as
to the mode by which the complainantâs evidence is to be given at the trial.
(2)
The Judge shall hear and determine the application in chambers, and shall give each
party an opportunity to be heard in respect of the application.
(3)
The Judge may call for and receive any reports from any persons whom the Judge
considers to be qualified to advise on the effect on the complainant of giving
evidence in person in the ordinary way or in any particular mode described in
section 23E of this Act.
(4)
In considering what directions (if any) to give under section 23E of this Act, the
Judge shall have regard to the need to minimise stress on the complainant while at
the same time ensuring a fair trial for the accused.]
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23E Modes in which complainantâs evidence may be givenâ
(1)
On an application under section 23D of this Act, the Judge may give any of the
following directions in respect of the mode in which the complainantâs evidence is
to be given at the trial:
(a)
Where a videotape of the complainantâs evidence was shown at the
preliminary hearing, a direction that the complainantâs evidence be admitted
in the form of that videotape, with such excisions (if any) as the Judge may
order under subsection (2) of this section:
(b)
Where the Judge is satisfied that the necessary facilities and equipment are
available, a direction that the complainant shall give his or her evidence
outside the courtroom but within the Court precincts, the evidence being
transmitted to the courtroom by means of closed circuit television:
(c)
A direction that, while the complainant is giving evidence or is being
examined in respect of his or her evidence, a screen, or one-way glass, be so
placed in relation to the complainant thatâ
(i)
The complainant cannot see the accused; but
(ii)
The Judge, the jury, and counsel for the accused can see the
complainant:
(d)
Where the Judge is satisfied that the necessary facilities and equipment are
available, a direction that, while the complainant is giving evidence or is
being examined in respect of his or her evidence, the complainant be placed
behind a wall or partition, constructed in such a manner and of such
materials as to enable those in the courtroom to see the complainant while
preventing the complainant from seeing them, the evidence of the
complainant being given through an appropriate audio link:
(e)
Where the Judge is satisfied that the necessary facilities and equipment are
available, a direction thatâ
(i)
The complainant give his or her evidence at a location outside the
Court precincts; and
(ii)
That those present while the complainant is giving evidence include
the Judge, the accused, counsel, and such other persons as the Judge
thinks fit; and
(iii)
That the giving of evidence by the complainant be recorded on
videotape, and that the complainantâs evidence be admitted in the
form of that videotape, with such excisions (if any) as the Judge
may order under subsection (2) of this section.
(2)
Where a videotape of the complainantâs evidence is to be shown at the trial, the
Judge shall view the videotape before it is shown, and may order excised from the
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videotape any matters that, if the complainantâs evidence were to be given in
person in the ordinary way, would be excluded eitherâ
(a)
In accordance with any rule of law relating to the admissibility of evidence;
or
(b)
Pursuant to any discretion of a Judge to order the exclusion of any
evidence.
(3)
Where a videotape of the complainantâs evidence is to be shown at the trial, the
Judge shall give such directions under this section as the Judge may think fit
relating to the manner in which any cross-examination or re-examination of the
complainant is to be conducted.
(4)
Where the complainant is to give his or her evidence in the mode described in
paragraph (b) or paragraph (d) of subsection (1) of this section, the Judge may
direct that any questions to be put to the complainant shall be given through an
appropriate audio link to a person, approved by the Judge, placed next to the
complainant, who shall repeat the question to the complainant.
(5)
Where the complainant is to give his or her evidence at a location outside the Court
precincts, the Judge may also give any directions under paragraph (c) or paragraph
(d) of subsection (1) of this section that the Judge thinks fit.
(6)
Where a direction is given under this section, the evidence of the complainant shall
be given substantially in accordance with the terms of the direction; but no such
evidence shall be challenged in any proceedings on the ground of any failure to
observe strictly all the terms of the direction.
23F Cross-examination
and
questioning of accusedâ
(1)
Notwithstanding section 354 of the Crimes Act 1961, but subject to the succeeding
provisions of this section, the accused shall not be entitled in any case to which this
section applies to cross-examine the complainant.
(2)
Nothing in subsection (1) of this section nor any direction given under section 23E
of this Act shall affect the right of counsel for the accused to cross-examine the
complainant.
(3)
Where the accused is not represented by counsel, the accused may put questions to
the complainant (whether by means of an appropriate audio link or otherwise as
the Judge may direct) by stating the questions to a person, approved by the Judge,
who shall repeat the questions to the complainant.
(4)
No direction given under section 23E of this Act shall affect the right of the Judge
to question the complainant.
(5)
Where the complainant is being cross-examined by counsel for the accused, or any
questions are being put to the complainant by the accused, the Judge may disallow
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any question put to the complainant that the Judge considers is, having regard to
the age of the complainant, intimidating or overbearing.
23G Expert
witnessesâ
(1)
For the purposes of this section, a person is an expert witness if that person isâ
(a)
a medical practitioner whose scope of practice includes psychiatry,
practising or having practised in the field of child psychiatry and with
experience in the professional treatment of sexually abused children; or
(b)
a psychologist practising or having practised in the field of child psychology
and with experience in the professional treatment of sexually abused
children.
(2)
In any case to which this section applies, an expert witness may give evidence on
the following matters:
(a)
The intellectual attainment, mental capability, and emotional maturity of the
complainant, the witnessâs assessment of the complainant being based onâ
(i)
Examination of the complainant before the complainant gives
evidence; or
(ii)
Observation of the complainant giving evidence, whether directly or
on a videotape:
(b)
The general development level of children of the same age group as the
complainant:
(c)
The question whether any evidence given during the proceedings by any
person (other than the expert witness) relating to the complainantâs
behaviour is, from the expert witnessâs professional experience or from his
or her knowledge of the professional literature, consistent or inconsistent
with the behaviour of sexually abused children of the same age group as the
complainant.
23H Directions to juryâ
Where a case to which this section applies is tried before a jury, the following provisions
shall apply in respect of the Judgeâs directions to the jury:
(a)
Where the evidence of the complainant is given in any particular mode described in
section 23E of this Act, the Judge shall advise the jury that the law makes special
provision for the giving of evidence by child complainants in such cases, and that
the jury is not to draw any adverse inference against the accused from the mode in
which the complainantâs evidence is given:
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(b)
The Judge shall not give any warning to the jury relating to the absence of
corroboration of the evidence of the complainant if the Judge would not have
given such a warning had the complainant been of full age:
(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:
(d)
Nothing in paragraph (b) or paragraph (c) of this section shall limit the discretion
of the Judge to comment onâ
(i)
Specific matters raised in any evidence during the trial; or
(ii)
Matters, whether of a general or specific nature, included in the evidence of
any expert witness to whom section 23G of this Act applies.
23I Regulationsâ
The Governor-General may from time to time, by Order in Council, make regulations for
all or any of the following purposes:
(a)
Prescribing the procedure to be followed, the type of equipment to be used, and
the arrangements to be made, where the evidence of a complainant is to be given
by videotape:
(b)
Providing for the approval of interviewers or classes of interviewers in such cases,
providing for the proof of any such approval to be by production of a certificate
and prescribing the form of that certificate, and prescribing the form of certificate
by which the interviewer is to formally identify the videotape:
(c)
Providing for the consent of the complainant to being videotaped, and specifying
who may give consent on behalf of the complainant:
(d)
Prescribing the uses to which any such videotapes may be put, and prohibiting their
use for any other purposes:
(e)
Providing for the safe custody of any such videotapes:
(f)
Providing for such other matters as are contemplated by any of sections 23D to
23H of this Act or as may be necessary for the due administration of those
provisions.
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Appendix E
Public inquiries into cases of alleged child sexual abuse
Cleveland, United Kingdom
From January to July 1987 there was a massive increase in allegations of child sexual abuse
in Cleveland, with 505 referrals to Cleveland Social Services compared with 288 in the same
period of the previous year. Two consultant paediatricians at Middlesbrough Hospital had
made an increasing number of allegations based on an unproven medical diagnosis termed
âthe anal dilatation testâ. Following these allegations, a large number of children were
removed from their families by social workers.
A public inquiry, led by Justice Butler-Sloss, examined 121 cases where sexual abuse was
alleged to have been identified using the test and the actions of the paediatricians and social
workers involved. Of these cases, the courts subsequently dismissed the proceedings
involving 96 of the children.
Manchester, United Kingdom
Over six months in 1990 in Manchester, 20 children from six families were taken into care
by social workers who were convinced that some of the children had been given
hallucinogenic drugs and subjected to organised ritual abuse. A judicial inquiry was
commissioned to investigate the charges and the practices of the social workers. In March
1991 the judge severely criticised the practices of the local police and social workers and
ordered that those children still in care be returned to their parents. An official government
investigation was then held into the case.
Orkney, United Kingdom
In November 1990, following allegations of sexual abuse by a child in Orkney, seven
younger siblings of that child were removed to the mainland of Scotland. During the
months after their removal, the younger children were interviewed and three of them made
allegations of what was understood to be organised sexual abuse involving the children and
parents of other families and a local minister. On 27 February 1991 the Orkney Social
Work Department removed nine children from the four other families whom they believed
were involved.
The children were the subject of a reference to the Childrenâs Hearing. The parents denied
the grounds for referral and a proof to establish the grounds was arranged before the
Sheriff. On 4 April 1991 the Sheriff held the proceedings incompetent and the evidence
was never heard. After the Sheriffâs decision the children were returned to Orkney. The
Acting Reporter appealed successfully to the Court of Session against the Sheriffâs decision,
but abandoned further pursuit of the proof on the grounds of evidence.
Saskatoon, Canada
In July 1991 16 people in Saskatoon, including two people who were prosecuted as young
offenders, were arrested and charged with over 70 counts of sexual assault against eight
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foster children. The childrenâs allegations included group and ritualistic sex with satanic
overtones, and other perverted acts.
One of the people arrested pleaded guilty to four charges. Three others were convicted of
several offences, but their convictions were overturned by the Supreme Court of Canada.
Charges against the remaining 12 accused were all eventually stayed by the Crown. In 1994
the 12 accused commenced a civil malicious prosecution action against the two
prosecutors, the investigating police officer, and a therapist in 1994. Their case was
successful in 2003.
Newcastle, United Kingdom
In April 1993, following a publicised incident of indecent assault at a Newcastle nursery by
a male employee, allegations were made of similar assaults by another male employee at a
different Newcastle nursery. Over the course of a year, further allegations were obtained
from approximately 30 other children of sexual and physical abuse, by both this employee
and a second female employee. Counts relating to six children were selected to form the
basis of criminal proceedings.
At the criminal trial in July 1994 the judge reviewed the evidence against the two former
employees who had both been dismissed for âgross misconductâ in the interim. The judge
concluded that the evidence was too weak to put before a jury and acquitted the two
former employees. Newcastle City Council commissioned an independent report,
published in 1998, which concluded that the two former employees had been guilty of
abuse. In 2002 the former employees sued the Council and the authors of the report for
libel and won.
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Appendix F
Evidence Bill â clauses 103 and 121
103
Directions about way child complainants are to give evidence
(1)
In a criminal proceeding in which there is a child complainant, the prosecution
must apply to the court in which the case will be tried for directions about the way
in which the complainant is to give evidence in chief and be cross-examined.
(2)
An application for directions under subsection (1) must be made to the court as
early as practicable before the case is to be tried, or at any later time permitted by
regulations made under section 194.
(3)
If an application is made for directions under subsection (1), before giving any
directions about the way in which the complainant is to give evidence in chief and
be cross-examined, the Judge-
(a)
must give each party an opportunity to be heard in chambers; and
(b)
may call for and receive a report, from any persons considered by the Judge
to be qualified to advise, on the effect on the complainant of giving
evidence in the ordinary way or any alternative way.
(4)
When considering an application under subsection (1), the Judge must have regard
to-
(a)
the need to ensure-
(i)
the fairness of the proceeding; and
(ii)
that there is a fair trial; and
(b)
the wishes of the complainant and-
(i)
the need to minimise the stress on the complainant; and
(ii)
the need to promote the recovery of the complainant from the
alleged offence; and
(c)
any other factor that is relevant to the just determination of the proceeding.
121
Judicial directions about childrenâs evidence
(1)
In a criminal proceeding tried with a jury in which the complainant is a child at the
time when the proceeding commences, the Judge must not give any warning to the
jury about the absence of corroboration of the evidence of the complainant if the
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Judge would not have given that kind of a warning had the complainant been an
adult.
(2)
In a proceeding tried with a jury in which a witness is a child, the Judge must not,
unless expert evidence is given in that proceeding supporting the giving of the
following direction or the making of the following comment:
(a)
instruct the jury that there is a need to scrutinise the evidence of children
generally with special care; or
(b)
suggest to the jury that children generally have tendencies to invent or
distort.
(3)
Despite subsection (2), if, in a proceeding tried with a jury in which a witness is a
child under the age of 6 years, the Judge is of the opinion that the jury may be
assisted by a direction about the evidence of very young children and how the jury
should assess that evidence, the Judge may give the jury a direction to the following
effect:
(a)
even very young children can accurately remember and report things that
have happened to them in the past, but, because of development
differences, children may not report their memories in the same manner or
to the same extent as an adult would:
(b)
this does not mean that a child witness is any more or less reliable than an
adult witness:
(c)
one difference is that very young children typically say very little without
some help to focus on the events in question:
(d)
another difference is that, depending on how they are questioned, very
young children can be more open to suggestion than older children or
adults:
(e)
thus the reliability of the evidence of very young children depends crucially
on the way they are questioned, and it is important, when deciding how
much weight to give to their evidence, to distinguish open questions aimed
at obtaining information from leading questions that put words into their
mouths.
(4)
This section does not affect any other power of the Judge to warn or inform the
jury.