Ellis v The the King
[2022] NZSC 115
•7 October 2022
| NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985. |
| NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF WITNESSES UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THE CRIMINAL JUSTICE ACT 1985. |
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA |
| SC 49/2019 [2022] NZSC 115 |
| BETWEEN | PETER HUGH MCGREGOR ELLIS |
| AND | THE KING |
| Hearing: | 4–8 October 2021 and 12–14 October 2021 |
Court: | Winkelmann CJ, Glazebrook, O’Regan, Williams and Arnold JJ |
Counsel: | R A Harrison, S J Gray, B L Irvine and K D W Snelgar for Appellant |
Judgment: | 7 October 2022 |
JUDGMENT OF THE COURT
AThe applications to adduce further evidence are granted.
B The appeal is allowed.
C The convictions of the appellant are quashed.
____________________________________________________________________
SUMMARY OF RESULT
Background
The appellant, Peter Ellis, was convicted after a jury trial in 1993 on 16 counts of sexual offending against seven children who had attended the Christchurch Civic Childcare Centre (the Crèche), where he had been a teacher. He was acquitted or discharged on 12 other charges.
The trial and the investigation that preceded it attracted considerable publicity and controversy. Because of the age and number of the complainants and the setting of the complaints, the case was almost unprecedented in the complexity it presented to those investigating, prosecuting and defending the charges. This complexity called for special care and attention and created unprecedented challenges for those involved. With the benefit of hindsight, we consider that this need for special care and attention was underestimated at the time of the investigation and trial. The case also posed difficult challenges for the parents of the complainants and the judgment should not be read as a criticism of them.
The appellant appealed against his convictions to the Court of Appeal. In 1994, the Court set aside three of the appellant’s convictions after one child recanted her evidence but otherwise his appeal was dismissed.[1] A Governor-General’s reference to the Court of Appeal led to a further hearing in the Court of Appeal in 1999 but that appeal was also dismissed.[2] The public controversy continued after those decisions. There was a Ministerial Inquiry in 2002, undertaken by a former Chief Justice, Sir Thomas Eichelbaum, who determined that the appellant had not proven that his convictions were unsafe.[3]
[1]See below at [67].
[2]See below at [70].
[3]See below at [71].
In 2019, the appellant was granted an extension of time to apply for leave to appeal to this Court against both the 1994 and 1999 Court of Appeal decisions and was granted leave to appeal. The appellant died before the appeal hearing in this Court, but the Court ruled that the appeal be allowed to continue after his death.[4]
[4]See below at [26].
The Court is unanimous that the appeal should be allowed and the 1993 convictions quashed. In this Summary, we briefly explain the issues that arose in the appeal and how the Court dealt with them in deciding to allow the appeal. But we emphasise this is only a summary. The issues are complex and the Court’s analysis is what appears in the Reasons that follow.
Principal issues
The principal foci of the Court’s Reasons are the evidence given at the trial under s 23G of the Evidence Act 1908 and the risk that the complainants’ evidence was contaminated because of potentially suggestive parental questioning prior to the complainants’ evidential interviews and because of other influences on the complainants outside the interview process. Other appeal points were less significant but the Court’s treatment of them is briefly summarised below.
Section 23G
Section 23G permitted an expert witness to give evidence in a case involving allegations of sexual offending against children on various matters. The most significant of those was whether evidence at the trial relating to a child complainant’s behaviour was consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.[5]
[5]Evidence Act 1908, s 23G(2)(c). The section is set out in full below at [101].
While evidence given under s 23G could assist juries by providing specialist information outside of a juror’s ordinary experiences and knowledge, experts were required to keep their evidence within the bounds of the section. The evidence needed to be balanced and, where there were possible alternative explanations for the behaviours exhibited by the complainant, these needed to be stated. Experts were not permitted to suggest that behaviours were diagnostic of sexual abuse or to comment on (or appear to comment on) the credibility of a complainant.[6]
[6]See below at [118].
Dr Karen Zelas, a specialist psychiatrist, was a Crown witness at the trial. She gave evidence as an expert witness under s 23G. However, she also had other roles in the case, including supervising the interviewers who interviewed the complainants and assisting the Police during the investigation of the allegations against the appellant.[7]
[7]See below at [127]–[131].
Dr Zelas’ evidence on child behaviours highlighted 20 behaviours that she said were consistent with the behaviours of sexually abused children. These were behaviours that parents of the complainants reported in relation to their children.[8] They included common childhood behaviours such as problems with sleeping and bedwetting but also included sexualised behaviour. The Crown produced a chart (“the Chart”) of these behaviours, indicating which of them was exhibited by each complainant, which was made available to the jury for their deliberations.
[8]See below at [140].
The Court has found that Dr Zelas’ evidence lacked balance,[9] did not inform the jury of other possible causes of the behaviours (or, where she did so, discounted or minimised the other causes)[10] and involved circular reasoning.[11] In several respects, it went outside the scope of evidence permitted under s 23G and in those respects should not have been admitted as evidence at the trial. In particular, s 23G did not permit an expert witness to endorse the credibility of a complainant’s evidence or suggest one or more behaviours were diagnostic of sexual abuse, but the jury may well have understood Dr Zelas’ evidence as doing both. In addition, the overall effect of Dr Zelas’ evidence was to incorrectly suggest to the jury that the presence of clusters of behaviours could support a conclusion that sexual abuse had taken place. The Chart, which was not prepared by Dr Zelas, compounded this because it was an unbalanced and unfair representation of the evidence it purported to summarise and indicated to the jury that the more behaviours attributed to a complainant, the more likely it was there had been sexual abuse.[12]
[9]See below at [191]–[198].
[10]See below at [201].
[11]See below at [182]–[188]. The reasoning was circular because it suggested that behaviours that could be explained in a number of ways nevertheless corroborated an allegation of sexual abuse on the basis that they were corroborative because the allegation has been made.
[12]See below at [203]–[210].
The problems with the s 23G evidence were not overcome by the cross‑examination of Dr Zelas, the evidence given by a defence expert, the submissions of counsel or the trial Judge’s summing up.[13]
[13]See below at [214]–[228].
This Court has concluded that, given the extent of the inadmissible material, the extent to which Dr Zelas’ evidence departed from appropriate standards, and its impact on the trial, the s 23G evidence may well have affected the verdicts and thereby caused a miscarriage of justice.[14] It has also concluded that the admission of the evidence that was outside the boundaries of s 23G was an error of law.[15]
[14]See below at [229]–[234].
[15]See below at [231].
However, we acknowledge the point made by counsel for both parties that s 23G was an extremely difficult section for an expert to give evidence under whilst appropriately respecting the boundaries of that section. We also acknowledge that there were other participants in the trial process who had primary responsibility for ensuring that evidence given under s 23G stayed within those boundaries.[16]
Contamination
[16]See below at [230].
An important part of the defence case at the appellant’s trial was the argument that the complainants’ evidence was contaminated by a number of influences, the most significant of which was direct questioning by parents. The contamination issue was pursued in pre-trial applications, at the trial and in appeals to the Court of Appeal. In both appeals, the Court of Appeal concluded that the risk of contamination was a factor that was articulated and addressed in the course of the trial, and that there was therefore no basis to second-guess the jury’s verdicts.
In this Court, the appellant relied on fresh evidence from memory experts to the effect that the risks of contamination were not fully recognised at the time of the appellant’s trial and that the evidence given by Dr Zelas about the risk of contamination substantially understated the level of risk.
The appellant relied in particular on an extensive affidavit by Professor Harlene Hayne, who identified a number of potential sources of contamination including meetings involving parents of complainants during the investigatory stage, discussions about the allegations between parents and complainants, parent‑to‑parent discussions and complainant‑to‑complainant discussions.[17]
[17]See below at [275]–[284].
An expert witness for the Crown, Professor Gail Goodman, expressed substantial agreement with Professor Hayne on the risk of contamination. She expressed the view that there was a high risk of contamination of the evidence of four of the complainants, while the risk in relation to evidence of the remaining two was moderate or low.[18]
[18]See below at [287]–[289].
The Court considered it was significant that Dr Zelas had expressed concern about possible contamination of the accounts by two of the complainants before the trial, but expressed no such concern at the trial. While she accepted children can be suggestible, she said it was possible to detect any adult input to children’s evidence and, at least implicitly, that she did not detect it in the complainants’ evidence.
The Court concluded that while the risk of contamination was canvassed at the trial, the jury was not fairly informed of the level of the risk of contamination of the complainants’ evidence.[19] The expert evidence at the trial had given the jury a false sense of reassurance both that the contamination risk was low, and that if the evidence was contaminated the jury would be able to detect that. The evidence now before this Court, taking into account studies that have occurred since the trial, is that the risk of contamination was higher than the jury was led to believe and that contamination of a child’s memory, if it had occurred, would not have been readily detectable. Even on the basis of the scientific studies that were available at the time of the trial, the evidence at the trial understated the risk of contamination.
[19]See below at [313]–[321].
If the jury had been correctly informed of the level of risk, that may have created a reasonable doubt about the allegations made, at least in relation to some of the complainants. As the evidence of the complainants was mutually supportive as similar fact evidence, the undermining of some of the verdicts necessarily calls into question all of the verdicts.[20]
Interviews
[20]See below at [313]–[321].
The experts for the appellant said that the interviews of the complainants in 1992 did not meet current best practice and/or did not meet the standards of the time, and were a potential source of contamination of the evidence. The Crown’s experts disputed that the interviews failed to meet the standards of the time, or that they could have had a contaminating effect on the complainants’ memories.
The issues relating to the interviews were intertwined with those related to contamination. In deciding how to address this issue we took into account the expert evidence we heard that if contamination had already occurred by the time of the interview, it could not be remedied by interviews even of the highest standard. Given that fact, and having reached the conclusion we have on contamination, we decided that we did not need to address this issue further.[21]
Memory evidence
[21]See below at [345]–[351].
This was another issue on which there was a variation of views by the experts. However, it has not been necessary for us to address this issue, given our conclusions on s 23G and on contamination.[22]
Subsidiary issues
[22]See below at [352]–[359].
The appellant supported the main points on appeal with some subsidiary points, about which we comment as follows:
(a)Sanitisation: The appellant argued that the Crown “sanitised” the charges, by not charging Mr Ellis with offences in respect of which it could have been expected there would be corroborating evidence. This Court concluded that the selection of charges by the Crown did not occasion a miscarriage of justice.[23]
[23]See below at [367].
(b)Failure to play all evidential interviews: The appellant also argued that the trial was unfair because not all of the interviews of the complainants were played to the jury. In many of the interviews that were not played, the complainants made allegations that could be described as fantastical, and the appellant argued this would have assisted the defence at the trial. The Court concluded that the failure to play all interviews at the trial did not add to the risk of a miscarriage of justice.[24] The defence was able to request the playing of certain interviews and, if all of the interviews had been played, there was a potential downside to the defence given the seriousness of some of the allegations made in the unplayed interviews.
[24]See below at [382]–[394].
(c)Materials provided to the jury: The appellant also argued that a miscarriage was occasioned by the fact that the jury was given transcripts of the evidential interviews played by the Crown, but not of the interviews played by the defence and the jury did not receive the notes of evidence. The Court accepted that the lack of balance in the materials provided to the jury was an unsatisfactory aspect of the trial and added weight to its earlier conclusion that the appeal should be allowed. But the Court would not have allowed the appeal on the basis of this issue alone.[25]
[25]See below at [407]–[415].
(d)Medical evidence: Evidence given by a medical expert in the appeal before this Court was that some of the medical evidence given at the trial, which was adverse to the defence case and which would have supported the Crown case, was incorrect. The evidence before us was based on medical developments that have occurred since the time of the trial. It was not challenged by the Crown. The Court concluded that the medical evidence about two of the complainants was, when assessed against today’s standards, incorrect. This was evidence which would have had a significant impact in the context of trial and was another reason for concern about the safety of the verdicts when assessed by today’s standards.[26]
[26]See below at [416]–[422].
REASONS
(Given by Winkelmann CJ and O’Regan J)
| Table of Contents | |
| Para No | |
| A BACKGROUND | [26] |
| Posthumous appeal | [26] |
| Investigation and trial | [27] |
| The Crèche | [28] |
| The investigation | [30] |
| Depositions | [41] |
| Trial | [43] |
| Crown case at trial | [44] |
| The complainants and their evidential interviews | [45] |
| Other aspects of the Crown case | [48] |
| Defence case at trial | [51] |
| Conviction and sentence | [59] |
| Complexity | [61] |
| Previous appeals and inquiries | [66] |
| 1994 appeal | [67] |
| Petitions to the Governor‑General | [68] |
| Thorp Report | [69] |
| 1999 appeal | [70] |
| Eichelbaum inquiry | [71] |
| Select Committee inquiry | [72] |
| B THE APPEAL | [73] |
| Statutory provisions | [73] |
| Grounds of appeal | [78] |
| Approach on appeal: some preliminary issues | [80] |
| Changing law and changing science | [80] |
| Law of evidence | [81] |
| Science | [87] |
| Scope of appeal | [91] |
| Evidence in this Court | [93] |
| How we address the issues | [99] |
| C SECTION 23G OF THE EVIDENCE ACT 1908 | [100] |
| How we address this issue | [102] |
| Legislative history of s 23G | [103] |
| What the courts said about s 23G | [115] |
| The s 23G evidence at trial | [126] |
| Dr Zelas’ multiple roles | [127] |
| Dr Zelas’ trial evidence | [138] |
| Evidence of the defence expert, Dr Le Page | [146] |
| How the issue was addressed in the 1994 and 1999 appeals | [150] |
| 1994 appeal | [150] |
| 1999 appeal | [155] |
| The s 23G issues on this appeal and our resolution of them | [157] |
| Did Dr Zelas’ evidence comply with the requirements of expert |
|
| Endorsing the Crown case that there had been abuse | [162] |
| Evidence that suggested behaviours were diagnostic | [168] |
| Evidence as to “clusters” of behaviours | [170] |
| Circular reasoning | [182] |
| Memory evidence | [189] |
| Was Dr Zelas’ evidence appropriately balanced? | [191] |
| Conclusion on compliance with the requirements of s 23G | [199] |
| Could these errors and irregularities have had an impact on the |
|
| The Chart | [203] |
| Significance of the evidence to the Crown case | [211] |
| How the defence dealt with the evidence — cross‑examination | [214] |
| Defence expert | [217] |
| Summing up | [222] |
| Was there a miscarriage of justice? | [229] |
| Further comment | [233] |
| D CONTAMINATION | [235] |
| Appellant’s case | [236] |
| Crown’s submission | [238] |
| How the issue was addressed earlier | [239] |
| Pre‑trial | [239] |
| Treatment of the issue at trial | [245] |
| Cross‑examination of Dr Zelas | [246] |
| Dr Le Page’s evidence | [251] |
| Closing addresses | [255] |
| The 28 August 1992 and 22 March 1993 letters | [256] |
| Trial Judge’s summing up | [265] |
| 1994 appeal | [268] |
| 1999 appeal | [269] |
| Eichelbaum inquiry | [271] |
| The contamination issues on this appeal | [272] |
| Contamination evidence at trial and current science | [274] |
| Professor Hayne | [275] |
| Professor Howe | [285] |
| Associate Professor Brown | [286] |
| Professor Goodman | [287] |
| Dr Seymour and Dr Blackwell | [290] |
| Propositions that emerge from the evidence | [297] |
| Contamination evidence at trial and the science of the time | [301] |
| Similar accounts and timing of contaminating events | [310] |
| Conclusion: contamination | [313] |
| E INTERVIEWS | [322] |
| Appellant’s case | [323] |
| Crown’s submission | [334] |
| How the issue was addressed earlier | [340] |
| Pre‑trial | [340] |
| Trial | [341] |
| 1994 appeal | [342] |
| 1999 appeal | [343] |
| Eichelbaum inquiry | [344] |
| Our assessment | [345] |
| F MEMORY EVIDENCE | [352] |
| G UNFAIR TRIAL ISSUES | [360] |
| Sanitisation | [361] |
| Appellant’s case | [361] |
| Crown’s submission | [364] |
| 1994 appeal | [365] |
| 1999 appeal | [366] |
| Our assessment | [367] |
| Failure to play all tapes of evidential interviews at trial | [368] |
| Appellant’s case | [368] |
| Crown’s submission | [375] |
| Pre-trial | [378] |
| 1994 appeal | [380] |
| 1999 appeal | [381] |
| Our assessment | [382] |
| Materials provided (or not provided) to the jury | [395] |
| Appellant’s case | [395] |
| Crown’s submission | [401] |
| Pre-trial | [404] |
| 1994 appeal | [405] |
| 1999 appeal | [406] |
| Our assessment | [407] |
| Medical evidence | [416] |
| H RESULT | [423] |
A BACKGROUND
Posthumous appeal
In 2019 Peter Ellis sought and was granted leave to appeal against his 1993 convictions on 13 counts of sexual offending against six children.[27] Those convictions were entered after a jury trial in the High Court at Christchurch in 1993.[28] Although Mr Ellis died before his appeal could be heard, in September 2020 this Court ordered that the appeal be allowed to continue.[29]
Investigation and trial
[27]Ellis v R [2019] NZSC 83 [SC leave judgment]. The approved ground was “whether a miscarriage of justice occurred in this case”. With the consent of the parties, this judgment was recalled and reissued on 7 October 2022 to clarify that the leave to appeal encompassed the Court of Appeal decisions of 1994 and 1999.
[28]Mr Ellis went to trial on 28 counts involving 13 complainants and was convicted on 16 counts involving seven complainants. He was acquitted on nine charges and discharged on three charges under s 347 of the Crimes Act 1961 at trial. One child (referred to in this judgment as “complainant 1”) recanted her evidence and the three convictions relating to her were quashed on appeal in 1994.
[29]Ellis v R [2020] NZSC 89. This was a results judgment. Reasons for the decision were delivered contemporaneously with the delivery of this judgment: Ellis v R [2022] NZSC 114.
The background to the case is well‑known. The 1993 trial was high profile and the convictions have been a matter of controversy ever since. The outline of the background that follows is an adapted and updated version of that appearing in earlier appeal decisions.
The Crèche
At the time at which the conduct that led to the charges was said to have happened, the appellant worked at the Christchurch Civic Childcare Centre (which we will call “the Crèche”). The Crèche was established in the Arts Centre at Montreal Street, Christchurch but in 1989 it moved to the former Christchurch Girls High School building in Armagh Street. There were an estimated 70 to 75 families using the Crèche weekly over the years from 1989 to 1991 with a daily average of about 40 children, of whom 12, with ages ranging from about 12 months through to two and a half years, would be in the nursery part of the building, and 28 would be in the larger preschool room. The ratio of staff to children was 1:4 for the nursery and 1:8 for the preschool room, including a supervisor and an assistant. That meant that it could normally be expected there would be between six and seven staff members present in the Crèche during work hours.[30]
[30]This was potentially significant in relation to the offending said to have occurred in the Crèche toilets, which was not observed by any other staff member.
The appellant commenced employment at the Crèche in September 1986 as a reliever. He was given a permanent position in February 1987 and commenced a three year course towards a “childcare certificate”, which he completed and passed in 1990.
The investigation
In November 1991 a mother (whom we will call “mother A”) reported something her son had said about the appellant.[31] A complaint was made to the Police. The Police liaised with the Specialist Services Unit of the Department of Social Welfare (the SSU) to formulate a method for investigation. On 25 November 1991, the son of mother A was interviewed by the SSU.[32] Mother A’s son did not report any abuse in his two interviews with the SSU. However, his parents discussed their concerns with Christchurch City Council officials and other parents.
[31]The child was said to have told his parents on more than one occasion that he did not like “Peter’s black penis”.
[32]Mother A made a deposition statement but was not called to give evidence at the trial.
The complaint by mother A’s child led to the commencement of an investigation. Mr Ellis was placed on temporary leave and suspended soon after the SSU began interviewing Crèche children.
Before going further, we explain the terminology used in this judgment to refer to the children who made complaints against the appellant in order to ensure the children’s anonymity is maintained. We will refer to the complainants collectively as “the complainants”. We will refer to individual complainants in respect of whom the appellant was convicted as “complainant 1”, “complainant 2” and so on. Where we refer to a parent of a complainant, we will use the code corresponding to their child, so “mother 1” or “father 1”, “mother 2”or “father 2” and so on. Different codes were used in the Court of Appeal and High Court. A key identifying these different codes is set out in Appendix A to this judgment. We will refer to complainants who gave evidence at the trial but in respect of whom no conviction resulted by the code names given to them in the High Court trial and adopt the same convention in relation to their parents, so “complainant T”, “mother T” or “father T” and so on.
Resuming the chronology of the investigation, the Parent Management Committee called a meeting of parents at the Crèche on 2 December 1991.[33] (We will call this “the December 1991 meeting”). The meeting was attended by members of the Parent Management Committee, representatives of the Christchurch City Council, Detective Eade of the Christchurch Child Abuse Unit and Ms Sue Sidey, a psychologist with the SSU. Not all parents attended, but mother A and the mothers of some of the children who became complainants (complainants 3, 6 and 7) were present. The parents were asked to look for any significant behavioural changes in their children occurring (particularly where there were a number of such changes, referred to as a “cluster”) and any events which might explain them. The parents were encouraged to ask their children only general questions in order to avoid affecting the reliability of any subsequent allegations made during the interview process.
[33]The Parent Management Committee was said to be comprised of between four and five parents whose children attended the Crèche, a representative from the Christchurch City Council, supervisor-level staff from the Crèche and other members from time to time. It existed before the allegations relating to the appellant came to light.
After that meeting, the SSU began a process of conducting evidential interviews with children referred to the SSU.[34] None of the children who were interviewed between 2 December 1991 and 20 December 1991 reported any sexual abuse initially. For that reason, the Police wrote to the Christchurch City Council on 20 December 1991 to advise that no allegations against Mr Ellis had been made. However, the SSU continued to progress the investigation through further interviews. On 30 January 1992, an allegation of sexual abuse was made for the first time by one of the Crèche children during an interview.[35] From that point, the Child Abuse Unit of the Police became actively involved in coordinating interviews and conducting investigations into any allegations raised.
[34]Most of the evidential interviews were conducted by Ms Sue Sidey, but two other Department of Social Welfare specialist interviewers conducted some of the interviews.
[35]That interview resulted in charges being laid but those charges were not ultimately pursued at trial.
The interviews were conducted under the overall supervision of Dr Karen Zelas, a specialist child psychiatrist who ultimately was to be a significant witness for the Crown at the appellant’s trial.
Overall, there were interviews of 118 children, most of them disclosing no abuse. In some cases, there was mention of abuse but the parents did not wish to put their child through the court process. The interviews continued throughout 1992 with most of the children who gave evidence at the appellant’s trial being interviewed a number of times. As the interviews progressed some of the children who disclosed abuse by the appellant implicated other adults — the appellant’s Crèche co-workers, his mother and strangers. And as the interviews progressed the children began to make bizarre allegations of abuse including being hurt with needles and burning paper, hung from the Crèche roof in cages and taken through trapdoors.[36]
[36]We discuss examples of these types of bizarre or fantastical allegations (and the jury’s knowledge of the same) below at [370]–[373] and [385].
As noted earlier, the first allegation of sexual abuse was made during an interview in late January 1992 and the interviews continued throughout 1992. Each of the charges against the appellant in the indictment specified a date range within which the alleged offence was said to have occurred. In almost all cases the date range began with a date in 1988 or 1989 (that is, between three and four years before the date of the relevant interview and between four and five years before the trial).[37]
[37]There were three exceptions: the earliest date in relation to complainant 1 was in 1986 and the earliest date in relation to complainants T and W was in 1991.
The appellant was arrested on 30 March 1992. He was interviewed by Detective Eade and consistently denied any misconduct. Initially he was charged in relation to allegations that had been made by complainant 6, complainant 7 and complainant T but later charges were laid in respect of other complainants. Three female Crèche workers were also arrested and charged with sexual offending against complainant 5. A fourth was charged, along with the appellant, with indecent assault on another child.
On 31 March 1992, the day after the appellant was arrested, there was a meeting of Crèche parents at Knox Hall, Christchurch, addressed by Ms Sidey, Dr Zelas and Police representatives.[38] (This was referred to in submissions as “the Knox Hall meeting” and we will do the same.) Some social workers from the Department of Social Welfare were also present. One or both of the parents of all of complainants 1–7 were present. As they had been at the December 1991 meeting, parents were advised to look for behavioural changes in their children and were warned about questioning the children and other conduct which might interfere with the evidential interview disclosure process.[39] Parents were provided with the opportunity to communicate with each other.
[38]Dr Zelas said she had no formal role in the investigation when she attended the Knox Hall meeting. Rather, she said she was invited to attend the meeting as an observer with specialist expertise who could be called upon to respond to questions arising during that meeting. She said she gave no formal presentation but did contribute to answering questions from parents.
[39]Dr Zelas had given a similar warning when she appeared on the national television programme “Holmes” on 23 March 1992.
A support group of parents met regularly.[40] Of most significance is a meeting in early August 1992 (“the August 1992 meeting”). The meeting was hosted by the parents of complainant Y and appears to have been attended by one or both parents of complainants 4–6 and by mother A. Detective Eade and a Detective Nicholl also attended. A list compiled by mother A, setting out the allegations that some of the complainants had made, was made available for parents to take home.[41]
Depositions
[40]It is not clear exactly when this group was formed: mother A said it was formed around the time of the December 1991 meeting (she could not recall if it was before or after), but it may have been formed later. Formal meetings did not begin until mid-1992. From mid-1992 until the trial, it was said that the support group met fortnightly. Before mid-1992, the frequency of informal support group meetings appears to have been less regular. Mother A said parents freely discussed disclosures by their children at the meetings, but this was denied by other parents who attended support group meetings. Some of the parents did, however, discuss specific allegations outside the confines of the support group meetings.
[41]As well as compiling the list of allegations, mother A also provided parents with literature about child sex abuse, discussed “symptoms” of abuse, phoned parents with information about allegations of other children, notified parents if their child had been named by another child and conducted her own investigation.
In accordance with the criminal procedure that applied at the time, there was a depositions hearing, which commenced on 2 November 1992 and concluded on 4 February 1993. The transcript of the oral evidence and cross‑examination ran to more than 1,000 pages. The appellant and four other Crèche workers were committed for trial on a total of 42 charges involving 20 children.
Before the trial started, three Crèche workers were discharged under s 347 of the Crimes Act 1961.[42] They had been charged as parties to alleged offending against complainant 5 by an unknown party. The appellant was also charged as a party to this alleged offending. Although his application for a discharge was dismissed prior to the trial,[43] he was ultimately acquitted on the count relating to that allegation.[44] The fourth Crèche worker was discharged because the complainant in question was unavailable to give evidence at trial.[45]
Trial
[42]R v [K] HC Christchurch T9/93, 6 April 1993 (Williamson J, Oral Judgment (No 3)) [Ruling 3] at 15–16.
[43]R v Ellis HC Christchurch T9/93, 20 April 1993 (Williamson J, Oral Judgment (No 4)) [Ruling 4] at 9–10.
[44]See below at [46](e).
[45]R v Ellis HC Christchurch T10/93, 5 March 1993 (Williamson J, Oral Judgment). The appellant’s discharge application in relation to this charge therefore also succeeded.
The appellant stood trial alone on 28 charges relating to 13 children.[46]
Crown case at trial
[46]After the depositions hearing, the Crown laid 36 charges against the appellant. But before the trial started, the Crown elected not to proceed with some of the charges (involving younger complainants).
The testimony of the complainants was central to the Crown case at the trial. Their evidence-in-chief was the recordings of their evidential interviews.[47]
The complainants and their evidential interviews
[47]Pursuant to an order made under s 23E(1)(a) of the Evidence Act 1908: R v Ellis HC Christchurch T9/93, 22 March 1993 (Williamson J, Oral Judgment (No 1)) [Ruling 1] at 10.
In relation to the seven complainants in respect of whom the appellant was convicted of at least one offence (we will refer to them as “the seven complainants”), there were a total of 24 interviews undertaken, of which 14 were played to the jury as part of the Crown case.[48] Another four full interviews (and portions of three others) with complainants in respect of whom the appellant was either acquitted on all charges or discharged part way through the trial were also played to the jury as part of the Crown case.[49] We viewed the video recordings of all of the interviews that were played to the jury at the trial in relation to the seven complainants.
[48]In one instance, only a portion of the relevant interview was played to the jury as part of the Crown case. The jury also saw selected portions of one other interview (involving complainant 5) at the request of the defence.
[49]Six tapes involving complainants who were the subject of charges on which the appellant was acquitted or discharged part way through the trial were also played to the jury at the request of the defence. For some tapes, only a portion was played.
The breakdown in relation to individual complainants in respect of whom the appellant was convicted of at least one offence is set out in tabular form in Appendix B to this judgment. The details are as follows:
(a)Complainant 1: there were three interviews with complainant 1 (a girl), of which two (the second and third) were played to the jury. The appellant was convicted on three counts in relation to complainant 1: two counts of indecent assault (touching her vagina with his hand and touching her vagina and anus with his hand) and one count of inducing a girl under 12 years of age to do an indecent act (inducing her to touch his penis). The last two counts were said to have happened at the Crèche. These convictions were quashed by the Court of Appeal in 1994 after complainant 1 recanted her evidence.[50]
(b)Complainant 2: there was one interview with complainant 2 (a girl), which was played to the jury. The appellant was convicted on one count of indecent assault (touching her vagina with his hand) in relation to complainant 2. This was said to have happened at the Crèche.
(c)Complainant 3: there were three interviews with complainant 3 (a boy), of which two (the first and third) were played to the jury. The appellant was convicted on one count of doing an indecent act on a boy under 12 years of age (urinating on the boy’s face and putting his penis in the boy’s mouth) in relation to complainant 3 and acquitted on one count of indecent assault (touching his anal area with a stick). The former was said to have happened at the Crèche.
(d)Complainant 4: there were three interviews with complainant 4 (a girl), of which two (the first and third) were played to the jury. The appellant was convicted on two counts in relation to complainant 4: one count of doing an indecent act on a girl under 12 years of age (urinating on her face) and one count of inducing a girl under 12 years of age to do an indecent act (inducing her to take a bath with him). The former was said to have happened at the Crèche. He was acquitted on two other counts: one count of attempted sexual intercourse and one count of indecent assault (touching her bottom with a needle).[51] The latter was said to have happened at the Crèche.
(e)Complainant 5: there were five interviews with complainant 5 (a boy), of which two (the fourth and a portion of the second) were played to the jury.[52] The appellant was convicted on three counts in relation to complainant 5: one count of inducing a boy under 12 years of age to do an indecent act (to bathe with the appellant and touch the appellant’s penis), one count of indecent assault (placing his penis against the boy’s anus) and one count of sexual violation by unlawful connection (connection of the appellant’s penis with the boy’s mouth). He was acquitted on one count of doing an indecent act on a boy under 12 years of age (being party to another, unknown person kicking and hitting the boy’s genital area and placing a needle in his penis).[53] None of the conduct leading to these counts was said to have happened at the Crèche.
(f)Complainant 6: there were six interviews with complainant 6 (a girl), of which four (the first to fourth) were played to the jury. The appellant was convicted on all four counts in relation to complainant 6: one count of sexual violation by unlawful sexual connection (connection of the girl’s mouth with the appellant’s penis) and three counts of indecent assault of a girl under the age of 12 years (touching her vaginal area with his penis, touching her anal area with his penis and being party to another, unknown person putting his penis on the girl’s vagina).[54] The sexual violation and the first two indecent assaults were said to have happened at the Crèche.
(g)Complainant 7: there were three interviews with complainant 7 (a girl), of which one (the first) was played to the jury. The appellant was convicted on two counts in relation to complainant 7: one count of sexual violation by unlawful connection (connection of her mouth with the appellant’s penis) and one count of indecent assault of a girl under the age of 12 years (touching her vaginal and anal area with his hand).[55] Both of these offences were said to have happened at the Crèche.
[50]R v Ellis (1994) 12 CRNZ 172 (CA) (Cooke P, Casey and Gault JJ) [1994 CA judgment] at 190.
[51]Before trial, the appellant applied for discharge in respect of all of the counts relating to complainant 4. That application was unsuccessful: Ruling 4, above n 43, at 8.
[52]Portions of the first interview were also played to the jury at the request of the defence.
[53]As mentioned above at [42], three female Crèche workers were discharged under s 347 of the Crimes Act in relation to the allegation that they were parties to this alleged offending. The appellant’s application for a discharge in relation to all of the counts relating to complainant 5 was also dismissed prior to the trial: Ruling 4, above n 43, at 10.
[54]The appellant’s application for discharge on these counts was dismissed prior to the trial: Ruling 4, above n 43, at 11.
[55]The appellant’s application for discharge on these counts was dismissed prior to the trial: Ruling 4, above n 43, at 9.
As mentioned earlier, there were six other complainants who gave evidence at the trial, with their evidence-in-chief consisting of one or more evidential interviews. No convictions resulted in relation to these complainants. This is set out in tabular form in Appendix C to this judgment. The details are as follows:
(a)Complainant P: there were two interviews with complainant P (a boy), of which a portion of one (the second) was played to the jury. The appellant was acquitted on one count of doing an indecent act on a boy under the age of 12 years (urinating into a cup and having him drink from it) in relation to complainant P.[56] This was said to have happened at the Crèche.
(b)Complainant T: there were three interviews with complainant T (a girl), of which one (the first) was played to the jury (portions of the other two were also played, one by the Crown and one at the request of the defence). The appellant was acquitted on one count of indecent assault (placing food against her anus with his finger) and one count of doing an indecent act on a girl under 12 years of age (urinating into a container and having her drink from it) in relation to complainant T.[57] Both were said to have happened at her home when the appellant was baby-sitting.
(c)Complainant U: there were five interviews with complainant U (a girl), of which a selected portion of one (the fourth) was played to the jury (portions of two others were played at the request of the defence). Part‑way through the trial, the appellant was discharged under s 347 of the Crimes Act in relation to two counts of indecent assault (touching her anal area with a stick and touching her vagina with his hand and his penis) in relation to complainant U.[58] Both were said to have happened at an unknown address.
(d)Complainant V: there were two interviews with complainant V (a girl), of which one (the first) was played to the jury. The appellant was acquitted on one count of indecent assault (poking her vaginal area with his finger) in relation to complainant V. This was said to have happened at the Crèche.
(e)Complainant W: there were two interviews with complainant W (a girl), of which one (the first) was played to the jury. The appellant was discharged under s 347 of the Crimes Act in relation to one count of doing an indecent act on a girl under 12 years of age (urinating on her) in relation to complainant W.[59] This was said to have happened at the Crèche.
(f)Complainant Y: there were five interviews with complainant Y (a boy), one of which (the first one) was played in full to the jury (portions of three others were also played at the request of the defence). The appellant was acquitted on one count of doing an indecent act on a boy under 12 year of age (urinating on his face) in relation to complainant Y. This was said to have happened at the Crèche.
Other aspects of the Crown case
[56]The appellant’s application for discharge on this count was dismissed prior to the trial: Ruling 4, above n 43, at 9.
[57]The appellant’s application for discharge on the latter count was dismissed prior to the trial: Ruling 4, above n 43, at 13.
[58]R v Ellis HC Christchurch T9/93, 6 May 1993 (Williamson J, Direction to Jury (No 3)) at 2. A similar application for discharge on these counts had been dismissed prior to the trial: Ruling 4, above n 43, at 12.
[59]R v Ellis HC Christchurch T9/93, 5 May 1993 (Williamson J, Direction to Jury (No 2)) at 2.
In addition to the evidence of the complainants, the Crown called evidence from parents of most of the complainants, parents of other children at the Crèche, other Crèche workers (including one of the workers who was charged along with the appellant but discharged under s 347 of the Crimes Act before the trial), others associated with the appellant and two general practitioners who examined some of the complainants. It also called expert evidence from Dr Zelas under s 23G of the Evidence Act 1908 (the 1908 Act). This evidence, discussed in greater detail below,[60] included the parents’ reports of behavioural changes in the complainants said to be consistent with those experienced by children who have been sexually abused.
[60]See below at [100]–[234].
The Crown argued that there were similarities in the accounts of the complainants, which meant the accounts of individual complainants supported the accounts of others.[61] The Crown pointed to a number of examples of this. According to the Crown, complainants 3–7 said the appellant urinated on them; complainants 3, 6 and 7 reported penis-to-mouth contact; complainants 1, 2, 4, 5, 6, and 7 all referred to anal and/or vaginal touching by the appellant; complainants 3–5 made allegations involving needles and sticks; and complainants 4 and 5 referred to allegations involving baths. All the complainants other than complainant 5 said offending happened in the toilets at the Crèche. Others said offending happened at the appellant’s home. Some said offending happened elsewhere and, when it did, other adults were present. All of the complainants said the appellant made threats to them. The trial Judge told the jury that similar facts may be relevant to prove a pattern of events that coincidence cannot satisfactorily explain away.
[61]The Crown referred to all the complainants who gave evidence but we will restrict our discussion to those in respect of whom convictions were entered.
The Crown said the following evidence also supported its case:
(a)Two Crèche workers reported discussions with the appellant in which the appellant referred to the use of implements and wooden sticks and straws as part of sexual practices. Another reported a discussion about “golden showers”, where urination is part of a sexual practice. The appellant accepted some (but not all) of these discussions had happened but said that he mentioned these to shock those to whom he was talking. He said he had read about sticks and implements in a magazine. The Crown asked the jury to see the evidence of Mr Ellis’ reported discussions as supporting the accounts of the complainants, given the similarities between what the appellant was reported to have said and some of what the complainants described in their evidence and the fact the complainants had not heard these discussions.
(b)One of the Crèche co-workers also gave evidence that the appellant said he used a polaroid camera to photograph sexual activity. (The Crown said this was significant because complainant 5 said the appellant and the appellant’s mother photographed “the circle incident” referred to below.[62])
[62]See below at [385](c).
(c)The parent of a child who had attended the Crèche gave evidence of an incident at the Crèche, which she thought had taken place in about 1990. She went to use the staff toilet and waited because the door was closed. When it opened, the appellant emerged with a little girl. The prosecutor said the girl was from the “Big End” of the Crèche so should have been toilet-trained and therefore was not in need of assistance from the appellant. Nor was there any need for the door to be closed. The witness said the appellant looked surprised and defensive. She asked him what the girl was doing in the staff toilet and he replied the children’s toilets were full. She thought this was strange. The Crown suggested to the jury this was evidence of opportunity and was consistent with the complainants’ allegations about abuse in the toilets at the Crèche.
(d)A former Crèche worker gave evidence that she and a colleague visited the appellant after he had been suspended from the Crèche but before he had been questioned about the allegations.[63] She said the appellant guessed about a dozen names of children who were likely to be complainants. She recalled four of these names: complainants 6 and 7 and complainants P and T. The prosecutor invited the jury to infer that he knew the names because he had, in fact, abused them. During cross‑examination, the appellant said he had been told by his wider support network some of the names of the children making allegations. He said this happened before his interaction with the former Crèche worker, which, he said, explained why he correctly named several of the complainants.
(e)Mother 4 gave evidence that when she was in the bath with complainant 4, complainant 4 moved her open mouth above the mother’s genital area, as if attempting oral sex. The prosecutor said complainant 4 would not have had the opportunity to see such behaviour at home and invited the jury to infer she learned it from being abused.
(f)Two Crèche workers gave evidence that they and others noted the appellant often spent extended periods of time in the staff toilets at the Crèche, and one of those workers said that the appellant used the toilet more frequently than what they considered was normal. The appellant said he used the toilet for smoking. Although the prosecutor referred to this evidence only briefly in his closing address, it left open the inference that the appellant’s toileting practices created opportunity for the offending said to have occurred in the toilets.
(g)Two Crèche workers said the appellant said to them that a game he played with Crèche children in the toilets “could look bad”.
(h)Mother 3 gave “recent complaint” evidence that, some time before the investigation started, complainant 3 had come home from the Crèche one day and said the appellant had done “wees and poos on the children” that day.[64] There was no other recent complaint evidence.
(i)There was evidence from two medical practitioners who had examined the complainants who had alleged penetrative sexual activity.[65] The doctor who examined complainant 3 (who alleged anal penetration with a stick and burning paper) reported no sign of abnormality. She said this did not mean no sexual abuse had happened. She accepted that if the alleged activity had happened, it could have been expected that the complainant would have been in some pain and discomfort for some days afterwards. The doctor who examined complainant 4 (who alleged penile penetration of her vagina) reported a notch in the complainant’s hymen. She said it was highly probable that this had been caused by trauma to the hymen, which would need to be caused by something penetrating into the vaginal entrance. The prosecutor said this was consistent with the allegation made by complainant 4, though not conclusive proof. The same doctor examined complainant 5, complainant 6 and complainant T and reported no abnormalities, except in relation to her anal examination of complainant 6. She said complainant 6’s anus had folds in the tissue which could be natural or could be the result of the healing of a tear. If the latter, that would indicate forceful stretching of the anus. The prosecutor said this evidence supported in some measure complainant 6’s account but, again, accepted it was not conclusive.[66]
Defence case at trial
[63]The former Crèche worker was called as a defence witness and gave evidence that was favourable to the defence case in several respects. However, in her evidence-in-chief, she referred to visiting the appellant, and she was cross-examined by the Crown prosecutor about her recollection of the appellant successfully naming some of the complainants.
[64]When mother 3 asked how that could be, complainant 3 responded that he was just joking.
[65]The Crown did not charge the appellant with sexual violation in relation to the allegations involving penetration, but rather with indecent assault. The prosecutor told the jury that this was because the Crown recognised children’s inexperience in such matters and their limitations in describing accurately how far something would penetrate.
[66]Professor Dawn Elder’s evidence in this Court called into question this evidence: see below at [417].
We did not have access to the closing address of the appellant’s trial counsel. But a copy of the Crown closing address was retrieved from the Crown solicitor’s files and was available to us and the Judge summarised the defence case as part of his summing up. We were able to glean the defence case from these documents and from other aspects of the trial record.
At the heart of the defence case lay the proposition that the complainants’ allegations were unreliable and could be explained by contamination from a number of sources — parents, other children and media. The defence also argued that the behaviours said by Dr Zelas to be consistent with those of sexually abused children were ordinary childhood behaviours or could have been caused by numerous other stress-related factors. These arguments remain central to the case of the appellant in the present appeal and we will discuss them in more detail later.
The main witness for the defence was the appellant himself. He denied that any of the alleged conduct had occurred.
The defence called an expert witness, Dr Keith Le Page, whose evidence contradicted aspects of that of Dr Zelas.
In support of its case that the complainants’ accounts were unreliable, the defence argued that there were no spontaneous allegations by the complainants;[67] all were made for the first time when the complainants were questioned, in some cases by leading questions directed at them by their parents. The defence said the similarities between the accounts given by different complainants could be attributed to cross-contamination from parent to parent and complainant to complainant.
[67]The child of mother A did not make an allegation of sexual abuse.
The defence case was that not only was there no evidence from an adult to support the complainants’ evidence, the evidence that was available called into question the plausibility of the complainants’ accounts. The Crèche was comparatively small and usually crowded with children, parents, workers and other people. It could have been expected that a co-worker or a parent would have seen the alleged offending happening or noticed that Mr Ellis was spending long periods in the toilet area with children. This was particularly so because the door to the toilets, where a number of offences were said to have happened, was left open and the area was visible from the body of the Crèche.[68] It would also have been expected that the complainants would have been visibly upset afterwards given the events they described.
[68]The jury went on a site visit to the Crèche building (and also to the site of the Crèche prior to its relocation), but this happened well after the Crèche had closed. The site visit occurred pursuant to a direction from the Judge made in accordance with the statutory regime applicable at the time of trial: R v Ellis HC Christchurch T9/93, 14 May 1993 (Williamson J, Direction to Jury (No 4)). A box of miscellaneous photographs, found by accident three years after the trial, included photos of the toilet area at the time the Crèche was operating. These had not been disclosed by the Police to the defence so were unavailable at the trial. Mr Harrison produced copies of these at the hearing of the appeal. They illustrate how visible the toilet area was from many parts of the Crèche building.
A number of parents and co-workers called to give evidence for the defence said they never saw anything at the Crèche or in the appellant’s behaviour that gave them cause for concern. Those parents and co-workers described the appellant as creative, lively, energetic and gregarious and as having a good sense of humour. He was said to like chasing the children at the Crèche, playing boisterous and physical, “rough and tumble” games with them and sometimes playing tricks on them. It was also said he liked to shock people. The supervisor and other workers at the Crèche gave evidence that they saw nothing in his behaviour suggesting sexual abuse of the children.
Other inconsistencies or gaps the defence argued existed in the prosecution case were as follows:
(a)Six of the seven complainants said other children were directly involved as fellow victims in their abuse. Those who were not complainants at the trial were not called to give evidence. In some cases, those who did give evidence did not refer to the episodes in which they were said by another complainant to have been abused.
(b)The adults said by a complainant to have been present at some of the episodes did not confirm their presence. And those who were said by complainants to have been present when the offending happened and complicit in it were either not charged (for example, the appellant’s mother) or were charged but later discharged (the appellant’s co‑workers). Some of the adults said to have been present at, or involved in, some episodes were never identified.
(c)Some of the offending was said to have occurred at a residence in Hereford St, where the appellant had lived as a boarder. The owner of this house gave evidence that he lived there continuously and could not remember any children from the Crèche visiting, apart from one visit when a group came with the appellant and another Crèche worker to see the appellant’s animals. There was no indication that the appellant ever returned to the address after he stopped living there.
(d)There was no medical evidence supporting the complainants’ accounts of some of the more extreme allegations involving penetration of the anus with sticks, a needle inserted into a complainant’s penis, burning paper being inserted into a complainant’s anus and so on.[69] Nor was there evidence that a parent noticed a complainant in pain or bleeding, both of which could have been expected given the nature of the injuries some of the complainants were said to have suffered.[70]
(e)There was no evidence of complainants going home with unclean clothes or smelling of urine or faeces, despite the allegations that complainants were urinated on and defecated on.
(f)Several of the complainants mentioned they were taken to places away from the Crèche in a car driven by the appellant. The appellant’s evidence was that he did not have a driving licence (though he thought he could drive if pushed) and did not own a car. Others who knew him said they had never seen him drive.
Conviction and sentence
[69]Apart from the evidence described above at [50](i).
[70]The evidence of Professor Elder in this Court was to the effect that, if the events as described by the relevant complainants actually occurred, there would have been serious injuries that would have been apparent at the time.
In summary, the appellant was convicted on 16 charges involving complainants 1–7.[71] He was convicted on all charges relating to four complainants and on some but not all charges relating to three complainants. He was acquitted on all charges relating to four complainants, and was discharged on three charges relating to two complainants during the trial under s 347 of the Crimes Act.
[71]However, as mentioned above at n 28, complainant 1 recanted her evidence after the trial and the three convictions in relation to her were quashed by the Court of Appeal in 1994.
The appellant was sentenced to 10 years’ imprisonment on 22 June 1993.[72] He was released from prison in February 1999.
Complexity
[72]R v Ellis HC Christchurch T9/93, 22 June 1993 (Williamson J, Sentencing Notes).
As this account of the background indicates, there were a number of factors that made the present case complex. In particular:
(a)The complainants were very young when the events leading to the charges occurred and when they were interviewed. Most were still only between six and seven years old at the trial.[73]
(b)There were a very large number of complainants and an even larger number of children interviewed.[74]
(c)The interviews took place months, if not years, after the complainants had left the Crèche and an even longer period after the events leading to the charges were said to have occurred and there was then a further delay until the trial.[75]
(d)The large number of children involved in the investigation meant there was also a large number of affected parents, who were understandably anxious about their children’s wellbeing. Some of the families involved were connected through the Crèche or through friendships between the children or the parents. Parents sought support from each other in some cases and there were regular meetings between parents that were attended by some of the complainants’ parents.[76]
(e)At the December 1991 meeting and the Knox Hall meeting, parents were asked to look for any significant behavioural changes in their children.
(f)It took a considerable amount of time to investigate complaints and interview children, partly because of the large number of children that had to be interviewed by a small number of available and qualified interviewers and partly because some of the children were interviewed multiple times. For some of the complainants, interviews took place some months after the initial meetings. This meant that some parents were left without support for a long time, which no doubt increased their anxiety. This led some parents to question their children, sometimes in very direct terms, which in turn led to the defence contention that there had been contamination of the complainants’ evidence.
(g)There was a great deal of publicity and controversy about the case before and during the trial, not just in Christchurch but nationally.
[73]The exceptions amongst the seven complainants at the time of trial were complainant 1 (nine years old) and complainant 2 (eight years old).
[74]As indicated earlier, many were interviewed multiple times.
[75]The interviews relating to the seven complainants took place between 27 February 1992 and 9 December 1992 and the trial began on 26 April 1993.
[76]See above at [40].
Many of these factors were interconnected; in many cases one factor magnified the effect of others. The factors that made the case so complex contributed to the delays between the events in issue and the complainants’ interviews and in completing the investigation and bringing the case to trial. The delays then added to the complexity.
All of this made the case almost unique in the challenges it posed to everyone involved in the case, including the prosecution, the defence and the trial Judge. In a report written in 1999,[77] which we discuss below,[78] a former High Court Judge Sir Thomas Thorp referred to the fact that cases like the present case involving multiple allegations by young children (referred to in an American report as “mass allegation creche cases”[79]) call for special care and examination. Sir Thomas noted that the High Court was not advised of this at the appellant’s trial. He considered that was understandable because this case appeared to be the first of its kind in New Zealand. We agree with Sir Thomas’ observation that the need for special care and examination in a case like the present seems not to have been fully appreciated by those involved in the investigation and trial of the appellant.
[77]Thomas Thorp Opinion for the Secretary for Justice re Petitions for the Exercise of the Royal Prerogative of Mercy by Peter Hugh McGregor Ellis (March 1999) [Thorp Report].
[78]Referred to below at [69].
[79]Thorp Report, above n 77, at 16.
The case also posed difficult challenges for the parents of the complainants. They were naturally very concerned for their children when they were informed that allegations had been made against the appellant. Parental love and concern would have made it very difficult for them to comply with the requests made by the authorities to refrain from asking their children direct questions about the alleged offending. The delays in completing the investigation and the fact that there was public controversy about the case exacerbated this. This judgment is not then to be read as a criticism of the parents of the complainants.
We emphasise that this judgment is also not intended as a criticism of those involved in the investigation and prosecution and the trial itself. Our focus has been solely on conducting a careful analysis in order to evaluate whether a miscarriage of justice occurred. We acknowledge that our review of the case has the benefit of hindsight and of advances in scientific knowledge in relation to some of the issues that arise. Obviously, neither of those advantages was available to those involved in the case at the time.
Previous appeals and inquiries
In the nearly 30 years between Mr Ellis’ trial and the appeal before this Court, the appellant has challenged his convictions twice in the Court of Appeal.[80] As well, there have been several inquiries, including a Ministerial Inquiry and a Parliamentary Select Committee inquiry. The scope and nature of those reviews varied (as we will come to). Although occasionally critical of aspects of the case against Mr Ellis, none of the appeals or inquiries concluded that Mr Ellis’ convictions were unsafe.
1994 appeal
[80]Once in an appeal against conviction under s 383 of the Crimes Act, and once following a s 406(a) reference by the Governor-General to the Court of Appeal, as we discuss below.
The appellant initially appealed to the Court of Appeal against both conviction and sentence immediately following trial. The conviction appeal was dismissed, except in respect of three charges relating to complainant 1, who recanted her evidence. Those convictions were quashed and verdicts of acquittal directed.[81] The sentence appeal was dismissed. An application for legal aid for an application for leave to appeal to the Judicial Committee of the Privy Council (the Privy Council) was declined.
Petitions to the Governor-General
[81]1994 CA judgment, above n 50, at 195.
In December 1997, the appellant presented a petition to the Governor-General seeking a pardon or a reference of the case back to the Court of Appeal under s 406(a) of the Crimes Act. This led to a reference back to the Court of Appeal raising a limited number of points for reconsideration.[82] The appellant presented a second petition in November 1998. Part of the object of the second petition was to request a widening of the terms of any reference back to the Court of Appeal as set out in the first reference.
Thorp Report
[82]The reference was made by an Order in Council dated 4 May 1998. The appellant argued in the Court of Appeal that the reference should be treated as a full appeal but this was rejected by the Court in a judgment delivered on 9 June 1998: Ellis v R [1998] 3 NZLR 555 (CA) [1998 CA judgment].
In March 1999, Sir Thomas Thorp submitted a report to the Secretary for Justice entitled “Opinion for the Secretary for Justice re Petitions for the Exercise of the Royal Prerogative of Mercy by [the appellant]”.[83] This responded to a request from the Secretary for Justice for advice about the second petition to the Governor‑General. Sir Thomas recommended (among other things) that the reference to the Court of Appeal be expanded to cover issues that had not come within the reference responding to the first petition. That recommendation was accepted and an expanded reference to the Court of Appeal was made by an Order in Council dated 12 May 1999.
1999 appeal
[83]Thorp Report, above n 78.
In 1999, the Court of Appeal heard and determined the questions referred to it in the Governor-General’s reference, but the appellant’s appeal was again dismissed.[84]
Eichelbaum inquiry
[84]R v Ellis (1999) 17 CRNZ 411 (CA) (Richardson P, Gault, Henry, Thomas and Tipping JJ) [1999 CA judgment]. The report in the New Zealand Law Reports ([2000] 1 NZLR 513) is an abridged version of the judgment. For that reason, we refer to the Criminal Reports of New Zealand version.
In 2000, a former Chief Justice, Sir Thomas Eichelbaum, was appointed to conduct a Ministerial Inquiry to evaluate the reliability of the evidence given by the complainants.[85] Sir Thomas concluded that the appellant had not proven that the convictions were unsafe, meaning there was nothing to warrant a pardon.[86] Subsequently, the Governor-General declined the appellant’s request for a pardon.
Select Committee inquiry
[85]The Ministerial Inquiry was initiated after the appellant presented a third petition to the Governor‑General in October 1999 (after the 1999 CA judgment) seeking a free pardon and a Royal Commission of Inquiry. Sir Thomas Eichelbaum was therefore appointed in order to assist in resolving the third Royal prerogative application.
[86]Thomas Eichelbaum The Peter Ellis Case: Report of the Ministerial Inquiry for the Hon Phil Goff (Ministry of Justice, Wellington, 2001) [Eichelbaum Report]. Neither counsel relied on this report and both said they considered it had no part to play in the appeal.
In 2005, the Justice and Electoral Committee of the House of Representatives released its report on two petitions to Parliament about the appellant’s case.[87] Both petitions asked that the House urge the Government to establish a Royal Commission of Inquiry into the appellant’s case. The Committee declined to do so, but made other recommendations in relation to the case.[88]
B THE APPEAL
Statutory provisions
[87]Justice and Electoral Committee Report on Petition 2002/55 of Lynley Jane Hood, Dr Don Brash and 807 others and Petition 2002/70 of Gaye Davidson and 3346 others (8 August 2005).
[88]These included recommendations that various law reforms be considered, that the Attorney‑General not oppose (or oppose only in principle) a proposed application by the appellant for leave to appeal to the Judicial Committee of the Privy Council and that the Legal Services Agency use its discretion to provide legal aid for that process.
The appellant had a right to apply for leave to appeal to the Privy Council in relation to both judgments. Prior to the appellant’s application for leave to appeal to this Court being filed, the parties agreed to the application for leave (and the appeal in the event leave was granted) being dealt with by this Court, rather than the Privy Council.[89] This means the relevant provisions in the Crimes Act for appeals to this Court govern the appeal.
[89]See the Supreme Court Act 2003, ss 50–51; and Senior Courts Act 2016, sch 5 cls 3–4.
This Court granted leave to appeal against both the 1994 and 1999 appeal judgments. In the case of the appeal against the 1994 decision, the relevant appeal provision is s 383A of the Crimes Act. In the case of the appeal against the 1999 decision, the relevant provision is s 406A of the Crimes Act. Both of these sections have now been repealed but the transitional provisions in relation to them make them still applicable to the appeal.[90]
[90]Sections 383A and 385 of the Crimes Act apply to the appeal, notwithstanding that they were repealed by the Criminal Procedure Act 2011: see Criminal Procedure Act, s 397. And s 406A applies notwithstanding its repeal by the Criminal Cases Review Commission Act 2019: see Criminal Cases Review Commission Act, sch 1 cl 4.
Appeals under s 383A of the Crimes Act must be determined in accordance with s 385 of that Act. Section 385(1) relevantly provided that an appeal against conviction must be allowed if the Court is of the opinion:
(a)That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b)That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c)That on any ground there was a miscarriage of justice; or
(d)That the trial was a nullity …
The proviso to s 385(1) allowed the appellate court to dismiss an appeal if one of the above grounds was made out but the court considered that no substantial miscarriage of justice actually occurred. We do not need to explore the concept of substantial miscarriage of justice as it was not suggested by the Crown that this proviso could be applied in the present case and we say no more about it.
An appeal under s 406A is limited in scope: the appeal is against “the Court of Appeal’s opinion on or determination of the question” (or questions) referred to it under s 406(a). As noted earlier, the 1999 appeal decision dealt only with the specific questions referred to the Court in the Governor-General’s reference, so only those matters are in issue in the appeal under s 406A.[91] But this is not of any practical moment because of the fact that both the 1994 and the 1999 appeal decisions are under challenge and the appeal against the 1994 appeal decision is brought under s 383A, which invokes the general grounds of appeal in s 385 mentioned earlier.
Grounds of appeal
[91]See above at n 82.
Although there was at times a lack of precision in appellant’s counsel’s identification of which of the s 385 provisions he relied upon, at its heart appellant’s counsel’s contention was that a miscarriage of justice occurred at the appellant’s trial. This also corresponds with the approved question on which leave was given.[92]
[92]SC leave judgment, above n 27.
Lead counsel for the appellant, Mr Harrison, advanced the appeal under five broad headings.[93] He argued that:
[93]Mr Harrison was the appellant’s trial counsel and was one of the counsel who represented him in the 1994 appeal but not the 1999 appeal.
(a)Section 23G: the expert evidence given by Dr Zelas under s 23G of the 1908 Act strayed outside the bounds of what could properly be admitted under that section and was unfair in that it improperly bolstered the complainants’ evidence, leading to a miscarriage of justice. It was also argued for the appellant that Dr Zelas’ involvement for the Police in the investigation and prosecution of the appellant affected her objectivity.
(b)Contamination: the evidence of the complainants was also adversely affected (or, at the very least, may have been adversely affected) by contamination before and during the evidential interview process, particularly through direct questioning by the parents of some of the complainants. The appellant says the risk of contamination of the complainants’ evidence was underestimated at the time of the trial. The science relating to contamination has advanced since the trial and with the benefit of that science there is a basis for concern that the risk of contamination affecting the evidence of at least some of the complainants was greater than would have been understood at the time of the trial. It is also argued that the jury was given incorrect reassurance by Dr Zelas in relation to the risk of contamination.
(c)Interviews: the way in which the evidential interviews with the complainants were conducted compromised the quality and integrity of the accounts given by the seven complainants. It was argued that the evidence of the experts before us showed that there was now much greater knowledge about the risks involved in the child interviewing process and the steps that need to be taken to avoid or minimise these risks.
(d)Memory evidence: the jury was not appropriately assisted by expert evidence relating to memory. This ground connects to many of the other grounds of appeal.
(e)Unfair trial: there was an unfair trial for several reasons which, singly or in combination, caused a miscarriage of justice under s 385(1)(c). It is argued that the trial was unfair because:
(i)there was a “sanitisation” of charges — the more fanciful or bizarre allegations were not the subject of charges;
(ii)in a pre-trial application, the trial Judge ruled that the Crown was not required to present all of the complainants’ interviews to the jury and the defence was required to seek the trial Judge’s permission to play any additional tapes or when proposing to cross‑examine a witness on an allegation not directly relevant to the charges. As a consequence only some of the evidential interviews were played to the jury, so that the jury saw only some of the complainants’ testimony, excluding much of the accounts given by complainants that involved the more extraordinary allegations. It is argued that this meant the defence was constrained in exposing the extent and nature of those other allegations to the jury; and
(iii)the jury was presented with the transcripts of the evidential interviews which were played to the jury as part of the Crown case, but not the cross‑examination relating to those interviews, nor transcripts of the further interviews that were played at the instigation of the defence. The jury was also given a chart of the complainants’ behaviours that were said to be consistent with the behaviours of sexually abused children generally, reflecting the evidence of Dr Zelas. It is argued this oversimplified that evidence and presented an unbalanced picture to the jury.
(f)Medical evidence: another issue that arose in the course of argument was the appellant’s contention that some of the medical evidence given at the trial was wrong and unfairly damaged the defence case.
Approach on appeal: some preliminary issues
Changing law and changing science
In the years that have passed since the trial of Mr Ellis and the subsequent appeals, much has changed in the law. Much has changed also in the science that underpinned the conduct of interviews of the complainants, and that underpinned the expert evidence provided at trial by Dr Zelas and Dr Le Page. These changes give rise to two preliminary issues in the context of this appeal. First, in assessing the several issues of admissibility of evidence that arise in this appeal, should the Court apply the rules of evidence that applied at the time, namely the 1908 Act and the common law rules, or should current evidence law apply? And secondly, in addressing whether a miscarriage of justice has occurred how should the Court weigh the “new” science which casts a different light on the collection and presentation of evidence at the trial.
Law of evidence
As to the first issue, the Evidence Act 2006 (the 2006 Act) addressed issues of transition between the pre-existing law of evidence and the rules of evidence contained in the 2006 Act. Section 5(3) addresses the 2006 Act’s application to proceedings as follows:
This Act applies to all proceedings commenced before, on, or after the commencement of this section except—
(a)the continuation of a hearing that commenced before the commencement of this section [being 1 August 2007]; and
(b)any appeal from, or review of, a determination made at a hearing of that kind.
On their face, these words appear to exclude the trial of Mr Ellis, and subsequent appeals, from its application. That interpretation has some attraction because an interpretation which has the 2006 Act applying to proceedings heard before its enactment could see the courts mired in endless appeals based on a failure to apply an Act not yet in force. And it is an interpretation which is consistent with s 32 of the Legislation Act 2019 which affirms that the repeal of an enactment does not affect the previous operation of the enactment or the validity of anything done under it.
Nevertheless, Mr Snelgar (who argued this aspect of the case for the appellant) argued that issues about the proper admissibility of the evidence at the 1994 trial should be resolved applying the 2006 Act, rather than by reference to the rules of evidence that applied at the time. There were two parts to his argument. The first turned on the definition of when a hearing commences provided in s 4(2) of the 2006 Act:
A hearing commences for the purposes of this Act when, at the substantive hearing of the issues that are the subject of proceedings, the party having the right to begin commences to state that party’s case or, having waived the right to make an opening address, calls that party’s first witness.
Mr Snelgar submitted this was a wide definition, allowing room for a court to interpret it in a way which is most consistent with the New Zealand Bill of Rights Act 1990. However, Mr Snelgar accepted in argument that it might not be favourable, in all cases, for his client if the 2006 Act rather than the 1908 Act applied to the issues of admissibility arising on this appeal. Having accepted that, he acknowledged this was an argument he could not, and did not wish to, press further.
The second part of his argument was based on the Court of Appeal decision in R v Bain, in which the Court decided that the 2006 Act applied to the retrial of Mr Bain.[94] As Ms Colley (who argued this aspect of the case for the Crown) pointed out, that case does not assist the appellant’s argument. The issue for the Court was the rules of evidence to apply at a retrial commencing after the 2006 Act came into force. Applying s 5(3), the Court of Appeal found that the retrial had to be conducted under the 2006 Act’s rules of evidence. That is a different circumstance to the one we are considering.
[94]R v Bain [2008] NZCA 585.
We are satisfied that in accordance with s 5(3) of the 2006 Act, and in accordance with s 32 of the Legislation Act, issues of admissibility in this appeal are to be determined under the law of evidence that applied at the time of Mr Ellis’ trial in 1994.
Science
That takes us to the second preliminary issue. How does the miscarriage of justice ground of appeal apply when the appeal is advanced on the basis of fresh evidence of changes in practice, knowledge or science, not reasonably available to the trial court, but which is before the court on appeal? It is well established that under this ground, the court has the flexibility to identify and intervene to prevent a miscarriage of justice however caused.[95] In R v Sungsuwan, this Court affirmed the principle that the overall consideration under the miscarriage of justice ground must be to “ensure justice where there is real concern for the safety of a verdict” — in other words whether the error or irregularity that is found could have affected the outcome of the trial such that there has been a substantial miscarriage of justice.[96]
[95]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [70]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
[96]Sungsuwan, above n 95, at [70]. See also R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30]; and Lundy, above n 95, at [150].
Relevant too is that some of the fantastical allegations found in tapes not played to the jury were nevertheless repeated by the complainants at the trial. Taking some of the examples mentioned by Mr Harrison (above at [370]–[373]), we note complainant 5 said in cross-examination that the two previously-unnamed Crèche workers referred to above had sexually abused the complainant, and that he was put into a cage by the appellant and his friends. Similarly, complainant 6 said in cross‑examination that a Crèche worker inserted a (plastic) knife into her vagina. Complainant 7 said in response to questions from Mr Harrison that she remembered telling one of the Crèche workers about the appellant abusing her. The Court of Appeal noted this in 1994 when it observed how a number of complainants “readily admitted in cross-examination to making the more bizarre allegations about sexual activity described in tapes not shown to the jury”.[289]
[289]1994 CA judgment, above n 50, at 179.
This Court recently considered a situation with some parallels in Haunui v R.[290] In that case, Mr Haunui was charged with drug offending after the car he was driving was searched and drugs were found. The passenger in the car (Ms X) was not charged. The Crown case was that Mr Haunui was solely responsible for the drugs. At the trial, Mr Haunui’s counsel sought to cross-examine a Police witness on text messages derived from Ms X’s phone which indicated she had been dealing in drugs. That would have supported Mr Haunui’s case that it was Ms X and not he who was responsible for the drugs. The Crown objected successfully. The Court of Appeal found the objection should not have been upheld, but that no miscarriage had resulted from the exclusion of the evidence.
[290]Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.
This Court found that the exclusion of the evidence relating to Ms X’s text messages rendered the trial unfair. The Court said:[291]
… without the text messages, the case was presented to the jury on a basis (primarily that the methamphetamine was the appellant’s) which was questionable on the evidence known to the Crown. Further, the Crown knew that the evidence was reliable, in the sense that it was authentic, and that without it the jury was being presented with an incomplete picture of material events leading up to the vehicle stop. Nonetheless, the admission of the evidence was resisted. Against this background, it was unfair that the appellant was prevented from placing before the jury evidence supportive of his defence.
[291]At [77].
The Crown attempted to counteract any perceived unfairness by submitting that the jury could have reached the same verdict by finding Mr Haunui guilty based on joint possession. But the Court rejected that submission. The joint possession line of analysis received only cursory treatment at trial, meaning the defence lacked a fair opportunity to address it.[292]
[292]At [78]–[81].
The parallels between Haunui and the present case are limited, however. In the present case, the Crown was not objecting to the interviews containing evidence inconsistent with its case (that the seven complainants’ evidence was, on the whole, sufficiently reliable to ground guilty verdicts) from being played. Nor was it seeking to prevent the complainants from being cross-examined on allegations made in interviews that were not played. And the Crown case was not that everything the seven complainants said was reliable; it was accepted that there may be inaccuracies, exaggeration and “magical thinking” in aspects of the complainants’ accounts. So, the Crown was not presenting its case to the jury on a basis that was “questionable on the evidence known to the Crown” as was the case in Haunui.
There remains a question as to the fairness of the ruling that required the defence to request the playing of interviews during the trial. The prejudice appears to have been limited, however, by the practice that was adopted at the trial. In its judgment in the 1994 appeal, the Court of Appeal summarised this as follows:[293]
There was discussion between counsel at the outset of the trial about the showing of the other tapes (called the defence tapes), all of which were made available by the prosecution, and the entries in the Crown book demonstrate that the defence was able to have played those parts it wanted in order to cross‑examine. … After being taken through the Crown book and shown the relevant entries, appellant’s counsel accepted that in general the defence was not denied the opportunity of playing whatever tapes they requested, but contended that his counsel at trial had felt constrained by the Judge’s insistence on relevancy from seeking more extensive playing …
[293]1994 CA judgment, above n 50, at 179 (emphasis added).
There is no record of a request by the defence for a tape to be played being refused by the trial Judge. And the record shows that the tapes requested by the defence were played in sequential order as the Crown tapes were played and before cross-examination of the relevant complainant occurred. But, with the benefit of hindsight, we think it would have been preferable to have had a process involving both counsel and the Judge deciding in advance which interviews (or portions of interviews) would be played and ensuring that there were transcripts available for all the interviews the jury saw.
It seems that the Judge did not want to prolong the trial by allowing every interview to be played, no matter how irrelevant. In fact, playing all the interviews could have been prejudicial to the appellant, given the serious allegations made in some of the unplayed interviews. But we accept there was some disadvantage to the defence in the solution adopted, in that the ruling seemed to lead defence counsel to believe the number of tapes that could be requested was very limited. However, we are not persuaded that this was such as to cause a miscarriage, given that many of the more fantastical allegations were before the jury and the defence was given the opportunity to ask for the interviews in which other allegations were made to be played.
This issue may not have arisen if there had been fewer interviews. As highlighted earlier, the number of interviews some of the complainants underwent in this case was problematic.[294] The fact that there were so many interviews added to the complexity of the trial in the present case. The limitation on the number of interviews played to the jury was one aspect of this.
Materials provided (or not provided) to the jury
Appellant’s case
[294]See above at [328], [336]–[337] and [347].
The appellant also raises concerns about the materials that were (or were not) provided to the jury during their deliberations. The appellant submits this led to a lack of balance and an unfair trial. The specific challenges are:
(a)the jury received transcripts of the evidential interviews that had been played by the Crown, but not the transcripts of the interviews played by the defence;
(b)the jury did not receive the notes of evidence; and
(c)the jury was unfairly permitted to use the Chart prepared by the Crown that summarised the behaviours experienced by the complainants.
We have dealt with the Chart earlier in this judgment and do not say more about it here.[295]
[295]See above at [203]–[210].
The transcripts of the complainants’ interviews that were part of the Crown case were provided to jurors as the recordings of the interviews were played, to assist jurors in understanding what the relevant complainant was saying in the interview.[296] Jurors were permitted to retain their copies of the transcripts, so they had them in the jury room during their deliberations.[297]
[296]Mr Harrison did not take issue with jurors having the transcripts while the recordings were played. His concern related to what jurors had with them in the jury room during their deliberations.
[297]Jurors were also provided with a copy of the indictment, the exhibits produced during the trial (photographs, plans, complainants’ drawings, lists, records, Crèche books, the complainants’ keep safe books, the schedules and charts), written statements of the appellant that were produced in evidence and the Chart.
As mentioned above, the transcripts provided to the jury were those of the complainants’ evidential interviews that were played by the Crown but not of those played at the request of the defence. Mr Harrison argued that the failure to provide the jury with the notes of evidence and the transcripts of the evidential interviews played at the request of the defence meant that there was no provision of balance during deliberations. This, coupled with the jury being given the Chart, meant the trial was unfair. In particular, the jury did not have access to the notes of evidence where the defence’s rebuttal to Dr Zelas’ evidence was outlined.
During the hearing, we asked Mr Harrison why the transcripts of interviews (or portions of interviews) played at the instigation of the defence were not available to the jury. He said argument about what portions of particular interviews could be played at the request of the defence occurred during the trial and just before the relevant interview was played, and there was not time to have the relevant transcript edited and provided to the jury as the portion of the interview was played. This seems surprising, as the transcripts of the full interviews already existed and it should have been only a matter of selecting the relevant pages and making copies for each juror. Even if this could not be done before the interview was played, there seems no reason why it could not have been done before the end of the trial so the edited transcript could be available to jurors for their deliberations.
In relation to the notes of evidence, Mr Harrison did not suggest that the Judge ruled against the jury having these. Nor did he suggest that any request had been made to provide them to the jury. Rather, the trial appears to have proceeded according to the practice of the time, when it was customary for the notes of evidence not to be provided to the jury.
Crown’s submission
Mr Billington argued that the provision to juries of transcripts of evidential interviews played at a trial was routine in the 1990s. It was appropriate here because some of the tapes were indistinct or unclear and some of the tapes were long (in excess of an hour) and the trial was a lengthy five-week trial.
Mr Billington noted the trial Judge said in his summing up: “these transcripts are only an aid to your assessment of the evidence. You must not let yourselves be persuaded into accepting the transcript is correct just because it is there.” He said it was clear the jury took this direction seriously because they asked for two tapes to be replayed during their deliberations, and were also read the relevant portions of the relevant complainant’s examination-in-chief and cross-examination.
In relation to the notes of evidence, Mr Billington said it was not the practice to provide these to the jury as is common practice now. He said the change of practice does not mean the earlier practice led to miscarriages. In the present case, the trial Judge’s summing up was lengthy and presented a balanced picture of the evidence as well as the Crown and defence cases to the jury.
Pre-trial
In a pre-trial ruling, the trial Judge ruled that transcripts from the evidential interviews played at the trial could be provided to the jury and would assist their understanding of the evidence.[298] The appellant had argued that jurors should not be allowed to have or retain the transcripts. No differentiation was made at that stage between those played as part of the Crown case and those played at the request of the defence. Although not expressly stated, it seems the ruling envisaged that jurors would retain the transcripts after the interview had been played and would therefore have them during the cross-examination of the relevant complainant and in the jury room during the jury’s deliberations.
1994 appeal
[298]R v Ellis HC Christchurch T9/93, 21 April 1993 (Williamson J, Oral Judgment (No 5)) at 11.
The Court of Appeal found the decision to allow the jury to have the transcripts in the jury room was appropriate and noted the Judge’s ruling had not precluded the transcripts of the evidential interviews played at the request of the defence being provided to the jury. It added:[299]
However, the fact remains that the jury did not have the transcripts of the defence tapes; nor did they have a record of the cross-examination. We accept that this could have resulted in an advantage to the Crown, but its effect is a matter of degree. In the overall context of the case we do not think it effectively prejudiced the accused, particularly as in instances where the defence was able to make real inroads in cross-examination there were verdicts of not guilty.
1999 appeal
[299]1994 CA judgment, above n 50, at 191.
These issues did not arise in the 1999 appeal.
Our assessment
As Mr Billington pointed out, the practice of providing the jury with the notes of evidence during the jury’s deliberations began well after the appellant’s trial. There is no indication that anyone asked the Judge to give the jury the notes of evidence or that he made any ruling that the notes of evidence not be provided to the jury. Rather, the practice of the day was followed.
Nor, for the reasons set out above, is there any indication that the Judge ruled that the jury could not have transcripts of the evidential interviews that were played at the request of the defence.
However, the position was that the jury had the transcripts of interviews played as the evidence-in-chief of the complainants but did not have any counter-balancing material.
The Court of Appeal observed in its 1994 judgment that the provision of transcripts to assist the jury “has now become commonplace, with both audio and video-recorded evidence adduced in criminal trials”.[300] The Court was referring there to having the transcript while watching the recording of the interview, but not retaining the transcripts during deliberations. In 1995, the Court of Appeal described allowing the jury to retain the transcript during deliberations, as in the present case, as less common than allowing jurors to have transcripts while the recorded interview was played.[301] In an earlier 1995 case, the Court of Appeal said that a situation similar to that which arose in the present case (the jury had the transcripts of interviews with multiple child complainants but did not have a transcript of the cross-examination or the notes of evidence) did not give rise to any concern.[302]
[300]At 190.
[301]Webby v R CA277/95, 22 September 1995 at 6.
[302]R v S, above n 116, at 680.
However, in 2013 the Court of Appeal observed:[303]
In earlier times, although a transcript of the complainant’s video was normally available to the jury, a transcript of the remainder of the complainant’s evidence (cross-examination and re-examination), and the other evidence in the trial was not generally available to the jury. All this changed some time ago. It is routine for juries to have available a transcript of the entire oral evidence given at the trial as well as other documentary assistance.
[303]E (CA799/2012) v R [2013] NZCA 678 at [57].
Authorities from the 1990s made it clear that balance was required when recordings of interviews were replayed during jury deliberations or part of the evidence was read back to the jury. Clear directions were required, and it was necessary to ensure the relevant parts of the cross-examination were drawn to the jury’s attention. Indeed that course was followed in the appellant’s trial. The jury asked to view parts of the interviews of complainant 3 and complainant 6. The Judge allowed this but ensured that balance was provided by reading extracts from their trial evidence, including the cross-examination.
In Webby v R, the Court of Appeal drew a parallel between a jury watching a recorded interview again during deliberations and the provision of a transcript to a jury during deliberations, suggesting that the need for balance was the same in both situations.[304]
[304]Webby, above n 301, at 6.
We consider that, as the jury had available to them transcripts of some of the evidential interviews played at the trial, they should have had the transcripts of all of them, whether they had been played at the instigation of the Crown or the defence. Similarly, they should have had before them information to counter-balance the transcripts which were the record of the complainants’ evidence-in-chief. A transcript of the complainants’ cross-examination would have done this. If the trial were held today, the jury would no doubt be given a copy of the notes of evidence as well as all transcripts. We consider that this is not a matter of applying today’s standards to a trial that occurred many years ago. It should have been apparent at the time of the trial that such balance was required.
The lack of balance in the materials provided to the jury was an unsatisfactory aspect of the trial and adds weight to our earlier conclusion that the appeal should be allowed. But we would not have allowed the appeal on the basis of this issue alone.
Medical evidence
The Crown objected to the admission of the medical evidence of Professor Elder in relation to the present appeal on the basis that it was not truly fresh evidence. As mentioned earlier, there were two aspects to her evidence.[305] First, her review of the medical evidence at the trial and secondly, her opinion that, if some of the acts that the complainants said the appellant perpetrated on them had occurred, the result would have been discernible symptoms such as severe pain and bleeding.
[305]See above at [94](e).
In relation to the first category, Professor Elder referred to the evidence at the trial from a doctor who examined some of the complainants that it was “highly probable” that a notch-shaped hymenal defect in complainant 4 “resulted from trauma to the hymen”, which would “need to be caused by some object penetrating into the vaginal entrance”.[306] Professor Elder said that such a genital finding would now be considered within the range of normal genital variation and therefore could neither support nor rule out sexual abuse. She also referred to the medical evidence at the trial in relation to complainant 6 to the effect that an irregularity in the shape of complainant 6’s anal opening supported the possibility of anal interference. Professor Elder said she would not be confident to say such findings support the possibility of anal interference. Professor Elder said her opinions on both of these aspects of the trial evidence relied on studies that post-dated the trial. The evidence is therefore fresh, it is clearly credible and we consider it is cogent in relation to the present appeal. We therefore admitted it.
[306]The doctor accepted in cross-examination that she could not exclude possible causes other than sexual abuse for the trauma.
The second category of Professor Elder’s evidence was adduced in support of the appellant’s arguments about sanitisation of charges.[307] We are satisfied that this aspect of her evidence is also admissible. We have already addressed the sanitisation argument and need say no more about it.
[307]See above at [361]–[363].
Mr Harrison said in his written submissions that Professor Elder’s evidence supported his fair trial argument. He did not develop this argument, but it can be inferred that it is to the effect that the medical evidence at the trial in relation to complainant 4 and complainant 6 that we have summarised above at [417] was incorrect for the reasons set out in that paragraph. As Professor Elder’s evidence was based on studies that postdate the trial as well as both the 1994 and 1999 appeals, she was not critical of the medical practitioners who gave the evidence at the trial, given the state of knowledge of that time. The substance of Professor Elder’s evidence was not challenged by the Crown. Unsurprisingly, counsel for the Crown did not address the argument, given that it had not been pursued by the appellant.
One aspect of the defence case at the trial, as recorded by the Judge in his summing up, was that “there is no medical evidence which establishes what the children say happened to them”. The Crown’s submission on the medical evidence was summarised by the Judge as follows:
As to the medical evidence, Counsel particularly referred to what, he said, was a confirmation of [complainant 4’s] evidence about a slight penetration of her vagina by the Accused, and a confirmation of [complainant 6’s] evidence of the Accused's penis against her anus.
This indicates that the medical evidence in relation to complainant 4 and complainant 6 was relied on by the Crown at trial, albeit in fairly muted terms. A much more significant part of the Crown’s closing to the jury in relation to the medical evidence was its explanation of why a lack of medical evidence in relation to other complainants should not be seen by the jury as significant.[308]
[308]The 1994 Court of Appeal judgment referred to the medical evidence but observed that “it took matters no further” and did not otherwise comment on it: 1994 CA judgment, above n 50, at 177. The 1999 Court of Appeal judgment referred to the medical evidence but only in passing: 1999 CA judgment, above n 84, at [33].
In light of Professor Elder’s unchallenged evidence, it is clear that the medical evidence about complainant 4 and complainant 6 was, when assessed against today’s standards, incorrect. It provided some support to the Crown case that can now be seen as misplaced. This is another reason for concern about the fairness of the trial when assessed by today’s standards.
H RESULT
We have found that the evidence before the jury in relation to both s 23G of the 1908 Act and contamination was incorrect or misleading and, in the case of the former, some of it should not have been admitted. Those two issues are the principal focus of the judgment. Having addressed all the issues raised with us, we have stood back and considered the case in the round. We have concluded that a miscarriage of justice has occurred and accordingly we allow the appeal and quash the appellant’s convictions. As the appellant has died, the issue of a retrial does not arise.
The Summary set out at the beginning of this judgment explains our reasons in brief terms and we do not repeat that here. We do, however, repeat our observation about the unique nature of this case and the immense challenges that it posed for all those involved in it. We express our thanks to counsel and all the experts who appeared before us for their assistance.
The formal orders of the Court are:
(a)The applications to adduce further evidence are granted.
(b)The appeal is allowed.
(c)The convictions of the appellant are quashed.
Solicitors:
Crown Law Office, Wellington for Respondent
APPENDIX A
Codes for Complainants Referred to in Judgment
| Supreme Court | Court of Appeal | High Court Trial |
| 1[309] | A | N |
| 2 | B | O |
| 3 | D | R |
| 4 | F | S |
| 5 | G | X |
| 6 | H | Z |
| 7 | K | Q |
[309]As mentioned earlier, the three convictions relating to complainant 1 were quashed by the Court of Appeal in 1994 after she recanted her evidence against the appellant.
Complainants P, T, U, V, W and Y were not referred to in the Court of Appeal decisions. The codes for them are those assigned to them for the trial.
APPENDIX B
| Summary Table – Complaints Leading to Convictions | |||||
| Child | EVI | Date | Played to jury | Charge | Verdict |
| 1 (Girl) | 1 | 7 April 1992 | No | No charge | - |
| 2 | 9 April 1992 | Yes (Crown) | Indecent assault | Guilty | |
| 3 | 28 May 1992 | Yes (Crown) | Induced girl under 12 to do an indecent act* | Guilty | |
| Indecent assault* | Guilty | ||||
| Note: the above convictions were quashed by the Court of Appeal in 1994. | |||||
| 2 (Girl) | 1 | 12 May 1992 | Yes (Crown) | Indecent assault* | Guilty |
| 3 (Boy) | 1 | 3 April 1992 | Yes (Crown) | Doing an indecent act* | Guilty |
| 2 | 27 April 1992 | No | No charge | - | |
| 3 | 28 October 1992 | Yes (Crown) | Indecent assault | Not guilty | |
| 4 (Girl) | 1 | 1 May 1992 | Yes (Crown) | Doing an indecent act* | Guilty |
| Induced a girl under 12 to do an indecent act | Guilty | ||||
| 2 | 28 May 1992 | No | No charge | - | |
| 3 | 3 August 1992 | Yes (Crown) | Attempted sexual intercourse | Not guilty | |
| Indecent assault* | Not guilty | ||||
| 5 (Boy) | 1 | 14 May 1992 | Yes (Portions played at defence request) | No charge | - |
| 2 | 4 August 1992 | Yes (Portions played by the Crown) | Induced boy under 12 to do an indecent act | Guilty | |
| Indecent assault | Guilty | ||||
| Sexual violation by unlawful sexual connection | Guilty | ||||
| 3 | 5 August 1992 | No | No charge | - | |
| 4 | 6 August 1992 | Yes (Crown) | Did an indecent act | Not guilty | |
| 5 | 28 October 1992 | No | No charge | - | |
| 6 (Girl) | 1 | 27 February 1992 | Yes (Crown) | Sexual violation by unlawful sexual connection* | Guilty |
| Indecent assault* | Guilty | ||||
| 2 | 28 February 1992 | Yes (Crown) | Indecent assault (this was the same charge as the assault arising from the 27 February 1992 EVI)* | Guilty | |
| 3 | 18 March 1992 | Yes (Crown) | Indecent assault* | Guilty | |
| 4 | 27 March 1992 | Yes (Crown) | Indecent assault | Guilty | |
| 5 | 28 October 1992 | No | No charge | - | |
| 6 | 29 October 1992 | No | No charge | - | |
| 7 (Girl) | 1 | 9 March 1992 | Yes (Crown) | Sexual violation by unlawful sexual connection* | Guilty |
| Indecent assault* | Guilty | ||||
| 2 | 6 October 1992 | No | No charge | - | |
| 3 | 9 December 1992 | No | No charge | - | |
| Note: charges marked with an asterisk (*) represent allegations that were said to have taken place at the Crèche. | |||||
APPENDIX C
| Summary Table – Complaints Leading to Acquittal or Discharge | |||||
| Child | EVI | Date | Played to jury | Charge | Result |
| P (Boy) | 1 | 9 December 1991 | No | No charge | - |
| 2 | 10 March 1992 | Yes (Portion played by the Crown) | Doing an indecent act* | Not guilty | |
| T (Girl) | 1 | 5 March 1992 | Yes (Crown) | Indecent assault | Not guilty |
| 2 | 19 March 1992 | Yes (Portion played at defence request) | No charge | - | |
| 3 | 27 May 1992 | Yes (Portion played by the Crown) | Doing an indecent act | Not guilty | |
| U (Girl) | 1 | 18 June 1992 | Yes (Portion played at defence request) | No charge | - |
| 2 | 1 July 1992 | Yes (Played at defence request with excisions) | No charge | - | |
| 3 | 30 July 1992 | No | No charge | - | |
| 4 | 6 August 1992 | Yes (Portion played by the Crown) | Indecent assault | Section 347 discharge | |
| Indecent assault | Section 347 discharge | ||||
| 5 | 10 August 1992 | No | No charge | - | |
| V (Girl) | 1 | 15 June 1992 | Yes (Crown) | Indecent assault* | Not guilty |
| 2 | 8 September 1992 | No | No charge | - | |
| W (Girl) | 1 | 17 July 1992 | Yes (Crown) | Doing an indecent act* | Section 347 discharge |
| 2 | 23 July 1992 | No | No charge | - | |
| Y (Boy) | 1 | 4 May 1992 | Yes (Crown) | Doing an indecent act* | Not guilty |
| 2 | 7 May 1992 | Yes (Portion played at defence request) | No charge | - | |
| 3 | 26 June 1992 | Yes (Portion played at defence request) | No charge | - | |
| 4 | 30 June 1992 | Yes (Portion played at defence request) | No charge | - | |
| 5 | 19 September 1992 | No | No charge | - | |
| Note: charges marked with an asterisk (*) represent allegations that were said to have taken place at the Crèche. | |||||
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