The Christchurch Civic Crèche Case

A City Possessed - by Lynley Hood - Index

A City Possessed - Reviews


Ministry of Justice
May 21, 2002

‘A City Possessed – Lynley Hood’s Book on the Christchurch Civic Creche Case”
Val Sim
Chief Legal Counsel, Office of Legal Counsel

LA 04 01 00 03

21 May 2002
Minister of Justice


You have asked for a report on the book “A City Possessed” on the Christchurch Civic Crèche case.  In particular, you asked whether the book discloses any new information which might point to the need for further inquiry into the Peter Ellis case.

The Structure of the Book

Ms Hood’s broad thesis is that, like the witch trials of the late 16th and 17th centuries, the Christchurch Civic Crèche case was the product of ‘moral panic’ about child sexual abuse, and mass psychogenic illness for which Peter Ellis was made a scape-goat.

Broadly, the book can be divided into three parts.  The first part of the book describes the environment in which the Ellis case took place.  It describes the social and political forces which Ms Hood suggests created the ‘moral panic’ about child sexual abuse and the related changes to the law which she suggests removed the traditional protections for persons suspected of child sexual abuse and made the conviction of Peter Ellis possible.

The second part relates to the events surrounding the investigations of sexual abuse at the Christchurch Civic Crèche.  Ms Hood’s research for this part of the book is based primarily on the record of the successive criminal and employment court proceedings.  In addition, she obtained a variety of material under the Official Information Act and conducted interviews with a number of people involved with the case.  It should be noted that while this part of the book deals with all aspects of the case including the prosecution of Peter Ellis, the prosecution of the women crèche staff members and the closing of the crèche, we have limited our comments to matters relevant to the conviction of Peter Ellis.

The third part of the book is essentially a critique of the various court proceedings surrounding the case (the depositions, the trial of Peter Ellis, the Employment Court proceedings, the Court of Appeal hearings and the Eichelbaum inquiry).  Again, we have limited our comments on this part, to matters relevant to Peter Ellis’ conviction.

Part I - The Environment

The essence of Ms Hood’s argument is that during the late 1970s and 1980s, the combined effect of the political agendas of the feminist movement, the child protection movement and religious conservatism was a ‘moral panic’ about child sexual abuse.  This panic was allegedly created by overstated estimates about the prevalence of child sexual abuse and its effects, and reinforced by largely untrained and unsupervised sexual abuse counsellors who, imbued with the philosophies of authoritarian feminists, pursued their mission of detecting child abuse with zeal.

Ms Hood suggests that increasing concerns about child sexual abuse and in particular the political agenda of the child protection movement, resulted in changes to the laws relating to the evidence of child complainants which removed the traditional protections for those suspected of abuse and made the securing of convictions easier[i][1].

According to Ms Hood, these developments had a particular impact in Christchurch, the epicentre in New Zealand for the detection, investigation, and prosecution of child sexual abuse.  Prior to the crèche case there had been highly publicised accounts of false allegations of child sexual abuse at Ward 24 of Christchurch Hospital and Glenelg Health Camp.  However, Ms Hood suggests that the Mason inquiry set up by Dr Cullen after complaints by Parents Against Injustice (Pain) effectively “vindicated”[ii][2] the child protection workers involved.  In addition, the city was awash with rumours about a wide-ranging police investigation of a child pornography ring, a teacher’s aide was convicted of child sexual abuse in April 1991 and a “virulent” ritual abuse scare was ‘ripening’ in Christchurch partly because of a Ritual Abuse Action Group Workshop held in Christchurch in September 1991.  Against that background, Ms Hood suggests a case such as the Christchurch Civic Crèche case was inevitable.

She also suggests that the case and the spiralling set of complaints which gave rise to it, created their own environment, by crystallising and focussing attention on nascent concerns and fears that were the product of a more general emerging “feminist” view of the world.


(a)        The ‘Moral Panic’

The concept of a ‘moral panic’ is recognised in social science literature.  However, the complex and intangible factors which may give rise to it necessarily mean that it is very difficult to attribute particular events to the existence of a ‘moral panic’ even if there is evidence to suggest it exists.

Ms Hood’s account of the events said to give rise to a moral panic proceeds from a particular perspective and there are aspects of it which may well be open to challenge[iii][3].  However, we have little doubt that the 1970’s and 1980’s were a period in which there was increased interest in and awareness of child sexual abuse.  It is also true that during this period there was a significant increase in the number of reported child sexual abuse cases and that both in New Zealand and overseas there were mistakes and cases where false allegations of child sexual abuse were made.  There was also reasonably extensive publicity about child sexual abuse, including, at one end of the spectrum, publicity about matters such as satanic ritual abuse and, at the other, publicity about false allegations of abuse[iv][4].  Whether or not these things would constitute a ‘moral panic’ as traditionally understood is open to debate, but in any event the argument that they render Ellis’ convictions unsafe has not been demonstrated in the book.

The general climate surrounding allegations of child sexual abuse and the effect of publicity about it have been considered by the courts and by the Eichelbaum inquiry.  Before the trial, Justice Williamson considered but rejected a submission by defence counsel that the combined effect of sensational media reports on the case and wide-spread and emotional community reaction to the abuse of very young children was to deprive Mr Ellis of his minimum right to a fair trial by an impartial and independent jury.  Mrs Ablett-Kerr QC made submissions at the second Court of Appeal hearing and again to the Eichelbaum inquiry about the climate surrounding child sexual abuse in Christchurch.  She submitted that, in the lead up to the Ellis trial in November 1991, Christchurch was “a smouldering volcano awaiting sufficient pressure to trigger an explosion” on account of publicity in regards of sexual abuse and satanic ritual abuse in particular.

Moreover, the Eichelbaum inquiry into the reliability of the children’s evidence was approached from the standpoint of contemporary knowledge of and attitudes towards child sexual abuse rather than those which prevailed in the 1970’s and 1980’s.

We discuss this more fully later in the report.

The Evidence Law Reforms

The 1989 amendments applicable to children on sexual cases which Ms Hood suggests made the conviction of Peter Ellis possible, are in three categories.  First are provisions relating to the mode of giving evidence, second are reforms relating to the admissibility of expert evidence for child sexual abuse cases, and third are reforms relating to the directions to be given by trial Judges to juries about the evidence of young children.

(i)         Amendments relating to the Mode of Giving Evidence

The main features of the reforms relating to the mode of giving evidence were:

amendments to the Summary Proceedings Act permitting child complainants in sexual cases to give their evidence at preliminary hearings in the form of a videotaped interview (and hence need not appear in person or give a written statement[v][5]).

Amendments to the Evidence Act require the prosecutor to seek a direction from the Court on how the complainants’ evidence is to be given[vi][6].  The available modes of giving evidence include presentation at the trial of the videotaped interview shown at the preliminary hearing, the complainant giving evidence outside the courtroom by closed-circuit television, the complainant giving evidence by audio link from behind a wall or partition, or the complainant giving evidence in Court screened by the defendant.

Where the prosecution requests the use of a videotape interview at trial, the videotape must comply with the Evidence (Videotaping of Child Complainants) Regulations 1990.

In the Ellis case, the trial Judge directed that the children’s evidence be given by means of the presentation of the children’s videotaped interviews.  Cross-examination of the children was given outside the courtroom by means of closed circuit television.  The issue raised by the book is whether these provisions are generally unfair or were unfair in the context of the Ellis trial.


Since the Ellis trial, the Law Commission has examined the provisions relating to children’s evidence in the context of its reference on the evidence law reform.  In its Preliminary Paper No.26, The Evidence of Children and Other Vulnerable Witnesses, the Law Commission noted a 1996 New Zealand study[vii][7] which found the provisions were generally perceived as satisfactory by most professional groups.  There was general consensus “that the new procedures significantly reduced the trauma of testifying for the child witness and this effect was not judged by any group – except defence lawyers – to be at the expense of the quality and truthfulness of the evidence given”.

Overseas studies referred to in the Law Commission report have reached similar conclusions[viii][8].

The Law Commission considered the main advantages of children giving evidence by videotaped interview are that “the evidence is recorded while the memory is still fresh usually some months before the trial.  Videotapes may also increase the reliability of evidence by reducing the number of interviews, thus lessening the impact of repeated questioning on the witnesses recall of events”[ix][9].  In addition, the specialist interviewer may be a specialist in communicating with children which could increase the quality and reliability of a child’s responses.

The main advantage of children being cross-examined outside the courtroom through use of close-circuit TV is that children may respond better to questions when they are asked in a smaller more intimate setting which makes them feel more at ease than a courtroom.

Having regard to the experiences in both New Zealand and overseas, we cannot agree with Ms Hood’s suggestion that the amendments relating to the way in which children may give evidence in sexual cases are unfair or that they brought about any injustice in Mr Ellis' trial.  In this regard, we note that while there has been considerable argument about the interview techniques used, and about contamination of the children’s evidence, there has never been any suggestion in any of the court hearings or before the inquiry that the way the children gave evidence in itself operated unfairly.  On the contrary, the effect of using the children’s videotaped evidence was to give the jury, and later both Sir Thomas Eichelbaum and the international experts, the opportunity to assess for themselves the evidential interviews of the children.

(ii)         Expert Evidence in Child Sexual Abuse Cases

The second reform mentioned by Ms Hood, and the one which has received the greatest criticism, relates to the use of psychiatrists and psychologists as expert witnesses in sexual abuse cases.  In 1989, Parliament enacted a new section 23G of the Evidence Act to overcome the strictures imposed on the admission of psychological evidence by the Court of Appeal’s decision in R v B.  In that case, the Court of Appeal held that, to be admissible, the evidence tendered by qualified experts must have a scientific basis.  In addition, the evidence must not go to the complainant’s credibility.  The Court expressed the view that the field of psychology, given its current state of development, was insufficiently scientific in its basis to meet the admissibility requirement.  It also concluded that the evidence tendered by psychologists was, in effect, a judgement on the credibility of complainants.

Since its enactment, the Courts have interpreted section 23G strictly, deeming it a limited relaxation of the rules articulated in R v B.  If its terms are met, then psychological evidence will be admissible irrespective of the test articulated in R v B.

To qualify as an expert witness under section 23G, the expert must be a registered psychiatrist or a registered psychologist who has practised in the field of child psychiatry or psychology and must have experience in the treatment of sexually abused children.  The courts appear to consider familiarity with the relevant literature to be sufficient to meet the experience requirement when the expert is expressing an opinion regarding the consistency of the complainant’s behaviour with that of sexually abused children of the same age group as the complainant.

The evidence that the expert is permitted to give is limited to the matters outlined in section 23G(2)(a)-(c).  The expert can comment on the intellectual attainment, mental capability, and emotional maturity of the complainant.  This comment may be based on an examination of the complainant before the complainant gives evidence or on observation of the complainant giving evidence directly or on videotape.  As long as the comment is directed and confined to the behaviour of the complainant as described by other persons in their evidence at trial, the expert’s acquisition of information about the complainant’s behaviour from other sources will not affect its admissibility.

The expert may also comment on the general developmental level of children of the same age group as the complainant.  In addition, the expert may express an opinion on whether any evidence relating to the complainant’s behaviour is consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.  This opinion may be based on the expert’s professional experience or on the expert’s knowledge of the relevant literature.

The judicial decisions on section 23G since its enactment indicate that the Courts view it as codifying the common law rule that the psychological or psychiatric expert witness cannot pass judgment on the complainant’s credibility as a witness.  That is a matter for the jury.  However, the jury may use expert evidence in reaching its own conclusions regarding the veracity of the complainant’s evidence.

In the Ellis trial, the Crown called expert evidence from a psychiatrist, Dr Karen Zelas.  The defence called evidence from psychologist Dr Keith Le Page.  Both gave evidence about the general development of children in the 3-10 age group.  Justice Williamson, in his summing up, commented on their evidence as follows:

“Despite the way the two experts used language and their different approaches, you may think that overall there was substantial agreement between them about the development of very young children”.

There was also evidence from Dr Zelas about whether the behaviour of the complainant children was consistent or inconsistent with the behaviour of sexually abused children of the same age group.  Dr Le Page also purported to give evidence of this kind, but his evidence was the subject of some confusion.  Dr Le Page’s evidence was to the effect that certain behaviours did not prove child abuse.  Justice Williams noted in his summing up that this went beyond the confines of section 23G.


The Law Commission has not identified any concerns with the operation of section 23G of the Evidence Act 1999 and in its report on Reform of the Law of Evidence recommends the retention of a similar provision.

We have some reservations about the extent to which evidence from expert psychiatrists or psychologists (in particular, evidence about the consistency of the behaviour of the complainant with the behaviour of sexually abused children of the same age group) adds to the assessment of the reliability of children’s evidence or what assistance it gives to juries.

The problem with evidence of this kind is (as defence counsel in the Ellis case established through his cross examination of Dr Zelas and submitted in his closing address) that in many cases there may well be other explanations than sexual abuse for particular behaviours by children, so that evidence that the behaviour in question is consistent with sexual abuse may be of little evidential value.  Sir Thomas Thorp noted this difficulty in his report on the case and recommended the repeal of the section.  Arguably, such evidence may also be misleading.

We are currently considering further whether section 23G of the Evidence Act ought to be repealed in the context of work on the Law Commission’s Evidence Code.

That said, there is nothing to suggest that the provisions caused any injustice in the particular circumstances of the Ellis case.  As mentioned above, defence counsel clearly established that there could be other explanations than sexual abuse for the behaviours of the complainant children and the trial judge made it clear that ultimately the assessment of the reliability of the children’s evidence was a matter for the jury.  In this regard, we note that the jury convicted Mr Ellis on some charges and acquitted on others.  This suggests that the jury was well able to make its own assessment of the reliability of the evidence of each of the children individually and in respect of each of the charges.  Finally, we note the Court of Appeal has expressly rejected the suggestion that the expert evidence at the trial was unfair to Mr Ellis.

(iii)        Jury Directions

The third feature of the reforms was the enactment of section 23H of the Evidence Act relating to directions to the jury.  This requires judges:

to explain the provisions relating to modes of evidence and to direct that no adverse inferences are to be drawn from this;

not to warn juries about the absence of corroboration;

not to instruct juries on the need to scrutinise evidence with special care nor to suggest that young children generally have tendencies to invention or distortion.


Sir Thomas Thorp in his advice on the Ellis case indicated there might be a need to consider reform of section 23H of the Evidence Act if it was established that there had been a change in expert opinion about the suggestibility of very young children[x][10].

The Law Commission has also considered the provision and recommends that its substance be retained.

The Law Commission report notes:

“There is currently no evidence to support the proposition that children spontaneously and without prompting fabricate claims of sexual abuse.  Researchers agree that young children can often recall events flawlessly.  A number of studies indicate that children’s recall is at times highly  accurate and quite detailed about a large range of events”.

However, the Law Commission did suggest that there should be a standardised direction which a Judge could give in cases involving children under six years of age if the Judge considered it would assist the jury.  The proposed direction is to the effect that depending on the way they are questioned very young children may be more open to suggestion than older children or adults and that the reliability of their evidence depends on the way they are questioned[xi][11].

The question of what (if any) direction is necessary when dealing with the evidence of very young children will be looked at further in the context of legislation implementing the proposed Evidence Code.  However, whichever conclusions are reached about the need for and form of judicial directions, it is very difficult to see how the current provision in itself can be said to have caused a miscarriage of justice in the Ellis case.  In this regard, we note that in summing up Justice Williamson emphasised the fundamental importance of the children’s evidence and that consequently it was prudent to proceed in considering their evidence with caution.  He also made it clear that it was equally as wrong to proceed on the basis that children often fantasise or romanticise as it is to consider that children never lie about child sexual abuse.  This is entirely consistent with current research.

Part II - The Investigation

Ms Hood’s account of the case takes the form of a narrative interspersed with extracts from the transcripts of the depositions and trial, extracts of relevant documents, and extracts from her interviews of persons involved.  Early on in the book Ms Hood acknowledges that by the time she came to write the book she had concluded that there was no evidence of wrong-doing at the crèche[xii][12].  Inevitably the narrative is coloured by her own view of events.

Ms Hood did not interview the children involved in the case because she considered that even if the children could have contributed to the research, she did not wish to add to their distress[xiii][13].

In addition, while Ms Hood interviewed a crèche parent who had withdrawn her daughter from the case and several parents of children who had not disclosed abuse, none of the parents whose children were involved in the case were willing to participate in her research.  The effect is that the account of the case is somewhat one-sided.

The book contains many extracts from interviews which took place some years after the trial with people involved in the case.  Of these, it is sufficient to note that many describe the emotional reactions of the person interviewed, or give accounts of the case which are coloured by that person’s views.  Some of these accounts also make allegations about events or the conduct of others, but these are largely untested.  For example, there are accounts by crèche workers about their dealings with Detective Eade but none of the specific allegations has been put to Detective Eade for comment.  While in the context of a book this makes for compelling reading, it has an impact on the reliability of the account.

This is not intended as a criticism of Ms Hood, but it does illustrate the differences between a book and a criminal trial.  A criminal trial has built-in safeguards designed to ensure the accuracy of the information and allow the testing of credibility where the accounts of witnesses are in dispute which are not available to an author.  For example, witnesses can be compelled to attend and answer questions, they have an obligation to tell the truth, and any evidence which is contrary to the account given by a witness must be put to the witness so that the witness has an opportunity to respond.

Overall, the book contains more detailed information about some of the peripheral aspects of the case, such as the history of the crèche, than was given in evidence at the trial.  However, in its essential respects the book contains very little new information, albeit that the facts are presented from a particular perspective.  It is not possible within the confines of this report to comment on all of the matters mentioned by Ms Hood. 

We outline below some of the main issues which are raised by Ms Hood in this part of the book.

(i)         The History of the Crèche

Ms Hood is critical of the fact that the police did not interview independent observers of the crèche such as staff or students of the College of Education, who would have spoken highly of the crèche or David Close, an employee of the Schizophrenic Fellowship which shared premises with the Civic Crèche at the Cramer Centre during the period January 1989 to June 1991. 


At the trial there was ample evidence from crèche staff and parents that the crèche was well run and that neither staff nor parents had seen anything untoward at the crèche until the remark by a child triggered the police investigation in November 1991.  It is therefore difficult to see what more interviews of staff or students of the College of Education, or of David Close could have added to the evidence at trial.

The Role of Ms Magnolia

Central to Ms Hood’s theory of the case is the parent who she names Ms Magnolia.  Ms Magnolia was the parent of the child who made a comment that ‘he did not like Peter’s black penis’ which sparked the initial concerns about possible sexual abuse at the crèche.  In essence, Ms Hood suggests that Ms Magnolia has an “epidemiological personality”[xiv][14] – ie, one which triggers mass hysteria.  Such personalities, Ms Hood says, can trigger a variant of the condition known as mass hysteria by proxy[xv][15].


The basis on which Ms Hood concludes that Ms Magnolia has an “epidemiological” personality is not entirely clear.  Ms Hood’s picture of Ms Magnolia appears to have been derived from descriptions of her rather than from first hand experience.  So far as we can make out, the primary reasons for Ms Hood’s ‘diagnosis’ appear to be that Ms Magnolia had worked in the sexual abuse field, that she had a history of depression and that, after removing her son from the crèche, she made a similar complaint about a male crèche worker elsewhere.

Ms Magnolia gave evidence at the depositions hearing where she was rigorously cross-examined on matters such as her knowledge of and attitude to child sexual abuse, her involvement with other crèche parents, her depression and the later allegations of abuse made by her son against an employee at the crèche at which her son was subsequently enrolled.  While neither the Crown nor the defence chose to call Ms Magnolia at the trial, all of the matters referred to by Ms Hood were known and available at the time of trial.

(iii)        The Background of Crèche Parents

Ms Hood describes in some detail the backgrounds of crèche parents[xvi][16].  She notes that at the time of the crèche case the parent groups split.  Some stood firmly behind staff, some became complainants and some walked away.  By the time the case reached the court the parents who remained involved had formed two groups – those who gave evidence for the prosecution and those who gave evidence for the defence.  Ms Hood then compares the backgrounds of each group.  Those who gave evidence for the defence she suggests were in stable long-term relationships.  They came from a variety of occupational groups.  None was unemployed and none were social workers, counsellors or therapists.  They had an average of three children per family and there were no twins.

Of the complainant parents she suggests five worked in the sexual abuse field, while the rest had a range of occupations.  One couple had four children and the rest had two.  One parent was not in a relationship at the time of the trial.  Some parents had children to other relationships.  There were three sets of twins[xvii][17].

When the trial was over, guilty verdicts were returned on charges involving seven children.  Five of their parents worked in the sexual abuse field.  Ms Hood explains that the relevance of twins is that “it could be argued that because of the closeness of twins, an alarming idea, once sown in the imagination of one twin will be quickly transmitted to the other”,  Ms Hood does not explain the relevance of the other factors but it is implicit that those parents who had backgrounds in child sexual abuse contaminated the evidence of the children and fuelled the panic over child sexual abuse.  The relevance of the fact that parents had children by other relationships and/or were not in a relationship at the time of the trial appears to be that this may explain some of the unsettled behaviour of the children which was said to be consistent with child sexual abuse.


Ms Hood does not source her information about the children’s backgrounds and the suggestion that five of the seven children whose evidence resulted in guilty verdicts had a parent who worked in the sexual abuse field does not seem to be borne out by the evidence of the parents at the depositions and trial.  (The evidence suggests that five had social work or community work backgrounds, but that only two had experience in the sexual abuse field and their work was largely with adults).  Be that as it may, in our view it is inappropriate to make judgements about the parents based only on their backgrounds.  Ms Hood has not met the parents concerned and her picture of them is derived only from reading of transcripts and what she has been told by others.

The jury, on the other hand, was able to make its own assessment of the credibility and reliability of these parents having seen them cross-examined on a range of matters, including their backgrounds and the extent of the contact they had with other parents.

(iv)        The Role of Detective Eade

Ms Hood is highly critical of Detective Eade, the police officer who had responsibility for the day to day management of the case.  She speaks of an interview held with Detective Eade at an unspecified time after Peter Ellis had been convicted, after which she wrote:

“Detective Eade’s single-minded line of argument, and the conspiracy beliefs which underpinned it, were chillingly reminiscent of the arguments and beliefs I had read about in demonology manuals of the 16th and 17th centuries”.

The book describes Detective Eade’s involvement with parents of crèche children and with the specialist interviewers.  It also recounts a 1997 TV3 documentary in which concerns were raised about Detective Eade’s mental state and about the fact he had ‘propositioned’ a crèche mother in the course of the investigation and had sexual relationships with two others after the trial was over.

In response to that programme, there was an internal police investigation into Detective Eade’s behaviour conducted by Detective Superintendent Millar, who concluded that there was a robust supervisory infrastructure in place throughout the investigation and that Detective Eade’s psychological condition was not such that his judgement was impaired in any significant way.

Based largely on interviews with the Police officers involved, Ms Hood concludes that although Detective Eade had some support from other Police officers he did not have robust supervision of the kind Detective Superintendent Millar had claimed.


Detective Eade was cross-examined at both depositions and trial about his role in liaising with parents and with the specialist interviewers, the issue being whether he was a possible source of contamination of the children’s evidence.

Following the 1997 TV3 programme, the conduct of Detective Eade was included in the grounds of Mr Ellis’ application for the exercise of the Royal prerogative of mercy.  Neither we, nor Sir Thomas Thorp considered that any of the matters raised in relation to Detective Eade warranted a reference to the Court of Appeal.

There was, nevertheless, some reference to Detective Eade’s conduct at the second Court of Appeal hearing.  The judgement records:

“A further nine documents were presented as demonstrating risks of contamination through contact with the officer in charge and the parents and children.  Having carefully reconsidered those documents we are unable to see how they could have been of material assistance to the defence.  Mr France correctly submitted that they were primarily used to support an attack on the integrity and ability of the officer in charge of the case…  In so far as they do bear on the questions of contamination they do not meet the threshold of evidencing a concern that if properly used at trial they may have had a material effect on the jury’s deliberations”.

The crux of the Ellis case is the reliability of the children’s evidence and Detective Eade’s conduct and mental state are relevant only to the extent that they bear upon that issue.  The issue of possible contamination of the children’s evidence by Detective Eade as well as by the parents, has been examined extensively by the High Court, by the Court of Appeal on two occasions and by the Eichelbaum inquiry.

(v)        Dr Karen Zelas

Ms Hood is critical of Dr Karen Zelas, a psychiatrist, who, whilst not directly involved in the interviews of individual children, supervised the overall process.  Dr Zelas also gave expert evidence for the prosecution under section 23G of the Evidence Act.

In the first paragraph of the book there is extensive comment about Dr Karen Zelas, including matters relating to her qualifications, training, experience and reputation as a child sexual abuse expert, about which Ms Hood is dismissive[xviii][18].  There is also mention (and implied criticism) of her involvement as an expert witness in some controversial child sexual abuse cases which were the subject of a Frontline documentary and later the Mason report.

The inference the reader is invited to draw from this part of the book is that at the time of the crèche case, Dr Zelas had a particular mindset towards child sexual abuse and that she had an influence over Judges[xix][19]  in child sexual abuse cases which was not warranted by her qualifications, training or experience.  In the context of the case itself, Ms Hood is particularly critical of Dr Zelas for an interview she gave on the Holmes show on 23 March 1992 (that is shortly before Peter Ellis was arrested, and the meeting of crèche parents at Knox Hall).  In that interview, Dr Zelas warned parents not to interrogate their children, advised parents to note any changes in their children’s behaviour, or particular anxieties, listed some behaviours which could be possible indicators of abuse, and described possible long-term effects of sexual abuse.  She also invited concerned parents to contact the investigating agencies and gave reassurances about the interview process.

This, Ms Hood suggests, “effectively validated the sexual abuse panic which was engulfing the crèche” and was “for a professional, who regarded herself as a rational and dispassionate expert a deeply compromising event”.

Ms Hood also noted that, during the trial, Dr Zelas did not recall giving the Holmes interview until confronted with an extract of it in cross-examination.  This, she suggests, is extraordinary in the context of a criminal prosecution in which the reliability of the memory and the credibility of Dr Zelas were important factors.


Dr Zelas was not directly involved in the interviews of crèche children.  Her role was one of supervisor of the specialist interviewers, and, from time to time, she was consulted by police on difficult issues that arose in the course of the investigation.  She also gave expert evidence at the trial pursuant to section 23G of the Evidence Act about the general development of children and about whether the behaviours exhibited by the crèche children were consistent with the behaviours of sexually abused children of the same age-group.  She was cross-examined extensively on a variety of matters including the Holmes programme referred to by Ms Hood.

The jury was therefore able to make its own assessment of Dr Zelas, the reliability of her memory and her overall credibility.  Among the arguments on appeal was a complaint that Dr Zelas’ evidence occasioned a miscarriage of justice.  The Court of Appeal judgement records:

“The next ground was a complaint that the extent of the evidence permitted from Dr Zelas in terms of s23G of the Evidence Act occasioned a miscarriage.  Mr Panckhurst opened on this by criticising (albeit with some delicacy) Dr Zelas’ conduct in undertaking a supervisory role in the interview process and then appearing as an expert expressing the opinions authorised by s23G of the Act.  Those opinions were about the consistency of each complainant’s behaviour with that of sexually abused children of the same age group; the intellectual attainment, mental capability and emotional maturity of the complainant; and the general development level of children of the same age group.

Counsel did not suggest that she was disqualified from giving such evidence because of her prior involvement, but said she was in an “uneasy” position when it came to drawing the fine line between evidence allowed under the section and the expression of an opinion on the credibility of particular complainants.  It is, of course, a line which may be difficult to discern in some situations, particularly when dealing with a group of young children, some of whom have given similar accounts of the appellant’s behaviour.  It is inevitable that general statements about young children’s mental capacity etc may be seen as applying specifically to these children – for example, the way young children use magical thinking; their tendency to give unusual or bizarre description of events of which they have had no previous experience; their ability to recall central details more readily than peripheral ones; and the stages of memory development and ability to recollect past matters.

All these were features very relevant to the accounts given by the complainants in this case, and they were the matters on which the jury would clearly be assisted by expert opinion.  As Mr Stanaway pointed out, Dr Le Page (called by the defence) gave the same kind of evidence, although perhaps not in full agreement with Dr Zelas.  There may have been one or two unimportant exceptions, but in the very extensive evidence given by both these experts we detect nothing to substantiate the suggestion that they overstepped the limitations imposed by s23G and started expressing views on the credibility of individual complainants”.

Somewhat ironically, in light of Ms Hood’s criticism of expert evidence in child sexual abuse cases, Mr Ellis’ primary arguments in his application for the exercise of the Royal prerogative relied on expert evidence about factors which might impact on the reliability of children’s evidence.  The second Court of Appeal was presented with further expert evidence from Drs Parsensen and Lamb (for Mr Ellis) and Dr Dahlenberg for the Crown.  The Court noted that there were differing views amongst the experts and that knowledge in the area was constantly developing, but did not consider the new evidence sufficient to warrant intervention by the Court of Appeal.

Expert evidence was also a feature of the Eichelbaum inquiry.  Ms Hood is critical of one of the international experts used (Dr Sas) and of the “best practice” models of child interviewing which were relied on by Sir Thomas Eichelbaum and the two international experts which she suggests are based on flawed ideology[xxi][21].  However, while there are undoubtedly differences of views between experts, Ms Hood’s criticisms overlook the fact that the models were developed in light of the problems which had emerged internationally in investigating child sex abuse cases and take into account, to the extent possible, the differing expert views.  Equally, we have no doubt that Sir Thomas, and the two international experts would reject any suggestion either that they subscribe to the ideology which Ms Hood attributes to them or that the best practice models are based on this kind of ideology.

(vi)        The Psychologist named ‘M’

Ms Hood recounts an interview with a psychologist who did not wish to be named who received “a chilling phone call” from an unnamed “official in the justice department” in which it was suggested that involvement in the Ellis case “would compromise his ability to receive referrals, appointments and assignments from government departments and reputable referees in town” [xxii][22].  On the strength of that phone call ‘M’ said he withdrew from the Ellis case.  ‘M’ also suggested that at the time of the crèche case “attempts were made and influences were exerted to suppress information that was already in public journals about how children can provide false information and fabricate stories and that after the case discussion of the issues was shut down”.  More generally, Ms Hood suggests there are difficulties with obtaining defence experts in child sexual abuse cases because of the way in which section 23G of the Evidence Act operates.  Experts acquire their experience by working for state funded programmes for the detection, treatment and prosecution of child sexual abuse.  These state funded programmes are controlled by DSW, ACC and Family Court administrators who “believe that child sexual abuse is an extremely serious and widespread problem”.  Under such administrators, Ms Hood suggests professionals “who interpret most things children do or say (or don’t do or say) as signs of sexual abuse” are bound to receive more referrals than professionals who question such interpretations so that sceptical experts with the knowledge and ability to challenge Dr Zelas and her like-minded colleagues often lack the experience to qualify as experts under section 23G. Those that do are often stigmatised by those with opposing views and their careers are short-lived as a result.


Ms Hood does not appear to have spoken to the “unnamed justice department official” and her account of the comment by ‘M’ is therefore untested.  We have made some inquiries into the matter, but there are obvious difficulties with investigating complaints by a person who is not willing to come forward against persons who are unnamed.  Similarly, it is difficult to comment on generalisations about the attitudes of the various employees of DSW, ACC or of Family Court administrators since attitudes are likely to be individual.  In any event, it is difficult to see how the comments by ‘M’ can point to any injustice in the Ellis case since at the trial there was expert evidence for the defence from Australian expert Dr Le Page and the case has been subject to a great deal of expert scrutiny since.

(vii)       The Role of Social Workers “Gillanders” and Crossan

Ms Gillanders was a DSW social worker who was seconded to the crèche case in May 1992.  Her role was to support crèche families involved in the Court proceedings.  Ms Crossan was appointed by the Christchurch City Counsel to support crèche staff and families.  Their jobs involved liaison with Police, counsellors, therapists, interviews of ACC staff, City Council and each other.

Ms Hood is highly critical of both Ms Crossan and Ms Gillanders, suggesting that they failed to remain neutral and made a substantial contribution to the contamination of the children’s evidence.


Ms Hood’s account is based largely on interviews with parents which do not appear to have ever been put to Ms Crossan or Ms Gillanders and are therefore largely untested.  In any event, all of the charges in relation to which Mr Ellis was convicted relate to children who had disclosed abuse prior to the appointment of Ms Gillanders and Ms Crossan.  On that basis, whatever the truth of the matter, it is difficult to see how the involvement of Ms Gillanders or Ms Crossan can be said to have caused a miscarriage of justice in the case of these convictions.

(viii)      Ritual Sexual Abuse – Unusual Sexual Practice

Ms Hood claims that until now (by which we assume she means the publication of her book) the role of a checklist of allegations compiled by Californian therapist Pamela Hudson in ‘Ritual Abuse:  Discovery, Diagnosis and Treatment’ has gone unrecognised.  The checklist is based on a telephone survey conducted by Ms Hudson and contains a list of types of physical or psychological abuse reported in ritual abuse cases.  These include matters such as confinement in cages, children being urinated upon or having to drink/eat urine or faeces, live burial in coffins or caskets and babies or small children being killed and children being threatened about what will happen if they tell anyone about what has occurred.

Amongst the early interviews of the crèche children, were accounts by children of Peter Ellis urinating on their faces and one child spoke of his defecating in the bath, and two of the counts on which Mr Ellis was found guilty relate to this conduct.  In later interviews, children gave increasingly bizarre accounts of behaviour including, for example, a child being taken to a room with other curiously dressed men and poked with sticks.  Other children also spoke of being stood in a circle and sexually abused by a group.  However, none of these more bizarre incidents was the subject of convictions.

Ms Hood’s thesis is that the children’s accounts were contaminated by their parents who had knowledge of Hudson’s checklist.  She also argues that paedophilia and urophilia do not co-exist and therefore the children’s account of Peter Ellis urinating on their faces cannot be correct.  This argument is based on an e-mail she received from Dr John Money, an international expert on sexual perversions, in which he described paedophilia and urophilia as different and non-overlapping perversions, as well as on a survey on internet pornography conducted by market researchers from Carnegie Mellon University and her own survey of sexual abuse literature.  She concludes that perversions involving child sexual abuse and urine and faeces exist “only in the fevered minds and imaginations of ritual abuse investigators”.

There was evidence at the trial that Peter Ellis had spoken to crèche workers and expressed interest in a sexual practice known as “golden showers” (an activity where people urinate on each other).  The Court of Appeal found this lent weight to the children’s accounts of Ellis urinating on them.  Ms Hood suggests this was wrong because urophilia is an adult sexual practice and not one engaged in by paedophiles.


Pamela Hudson’s checklist was not referred to at the deposition and trial, but there was extensive cross-examination of the parents of crèche children about their knowledge of ritual sexual abuse.

In relation to the two children who spoke of Mr Ellis urinating on their faces, the Court of Appeal observed:

“Counsel criticised the techniques used in the first interview suggestive of prompting and attempting to get corroboration of offences on other children.  We do not think there is anything of substance in these criticisms or in the fact that the boy’s mother asked him early in 1992 whether Peter had ever touched children’s bottoms; he then told her about the urination and the stick incident which she had not heard of before.  She was closely cross-examined about discussions with others and with the child, and about his association with other children, from which the jury would have been able to make an informed judgment on the existence and extent of any contamination of her son’s evidence.  There is nothing in her testimony to give us cause for concern on this aspect. 

We note in respect of the count involving urination that Ellis was also found guilty of the same conduct in the toilet with child F, and that there was evidence from one of the crèche workers that on three occasions he had talked to her about a sexual practice known as “golden showers”, involving an activity where persons urinated on each other in turns.  She said he appeared to be interested in it and that other adult sexual practices were discussed as well.  In cross-examination the appellant denied talking about “golden showers” but explained that he sometimes spoke of unusual sexual practices as described by several crèche workers to shock or “get a rise” out of them.

The Judge was clearly correct to allow evidence of his interest in these unusual practices to be given:  the jury could see in the reference to “golden showers” support for his conviction on the two counts involving that unusual practice, especially as it seems unlikely that the two children could have made it up or learnt of it from other sources”.

And of the second:

“In spite of her mother’s concerns giving rise to reservations about whether she may have unduly influenced or suggested matters to the child, in the end the jury must have been satisfied beyond reasonable doubt with the essential truth of the accounts forming the basis of the charges.  We would not be justified in setting aside the convictions in the face of their advantage in seeing and hearing the witnesses – a fortiori on the first count, in light of the accused’s discussions about “golden showers” to which we have already referred under child D”.

At the second Court of Appeal hearing, Mrs Ablett-Kerr produced Pamela Hudson’s publication on ritual sexual abuse guidelines as an exhibit and submitted that “it was to provide an almost blue print copy of the claims of the children in the crèche case”.  She also submitted that the mother of at least one of the child complainants was aware of the guidelines because she had written to investigators in August 1992 asking for Ms Hudson to be brought to New Zealand.  A similar submission was made to the Eichelbaum inquiry.

On that basis, the only aspect of Ms Hood’s account which could be said to be new is the suggestion that urophilia does not overlap with paedophilia.

However, the book does not provide any basis on which it could be concluded that paedophilia and urophilia cannot co-exist.  Nor is it clear that there has been any rigorous scientific research into the coincidence of urophilia and paedophilia.  In this respect, we note that there is no reference in Dr Money’s e-mail to any research or study undertaken by himself or anyone else.

(ix)        The Opportunity for Abuse

One of the other matters raised by Ms Hood is how abuse on the scale alleged could have gone undetected for an extensive period.  There were no signs of abuse, and while some of the child complainants said they complained to crèche staff none of the crèche staff accepted this.  Ms Hood argues that the staff ratios and comings and goings of parents made the opportunity for abuse unlikely.  The door between the school room and the crèche toilets was almost invariably open.

A house at Hereford Street featured in some charges, but the owner of the house who had almost continuous occupancy had no recollection of visiting apart from one occasion when a group came back with another worker to see Mr Ellis’ animals which he kept at the back.


Issues about how the abuse could have gone undetected were canvassed extensively at Mr Ellis’ trial and at his first appeal.  Of the absence of complaints by children the Court of Appeal observed that, if made, they may have been understood only as objections to Mr Ellis’ tricking or boisterous play.  As to the layout of the toilets, the Court observed:

“The crèche toilets were at the centre of some serious allegations.  There were three of them in cubicles with separate doors off a lobby adjacent to the pre-school room with direct access from the staff room, and there was evidence that the door between the school room and toilets was almost invariably open, except perhaps on very cold days and in the early morning.  One toilet was generally understood to be for adults and the other two for children, all of whom were supposed to be toilet-trained before entering the pre-school room.  Some of them left the door open at toilet; others would close it.

The only adult evidence of anything untoward in the toilet area came from a former worker who said she saw the appellant emerge from the adult cubicle with a little girl while she was waiting in the lobby, and she described him as looking surprised and on the defensive.  There was nothing to indicate that the girl (who should have been fully toilet trained) required any attention.  She asked him what the girl was doing in there and he replied that all the toilets were full.  She said it was a summer day and most of the children and staff would be outside in the yard.  Although she thought the matter strange she did not mention it to anybody, but realised its significance after hearing of the charges and then told the police.

Another worker said she was aware of the appellant remaining in the adult toilet for sometimes up to 5-10 minutes, but he explained that he was a smoker and used it at times for that purpose.  The assistant supervisor confirmed she was aware of this practice.  Another worker also referred to a remark made by Ellis after his arrest to the effect that the games in the toilets could look bad.  She did not know then what he was talking about and he explained that on occasions when children were washing their hands before lunch he would shut some of them in the staff toilet and they would bang on the door shouting to be let out.

The matters advanced by Mr Panckhurst about the design and operation of the crèche do not persuade us that the abuse described by the children as occurring there, and particularly in the toilets, could not have happened, or that their evidence of it cannot be relied on”.

As to abuse away from the crèche, the Court noted:

“Nor do his submissions about lack of opportunity for abuse away from the crèche when the children were taken on walks by the appellant.  A maximum ratio of about one adult to five children was aimed at on these expeditions, which were meant to be recorded in a book by the staff member before setting out, but this may have been more honoured in the breach than in the observance.

The appellant gave unchallenged evidence that on 75 percent of the time he went on walks with another adult, the maximum duration averaging about one hour ten minutes, but one worker said his walks were a minimum of an hour and frequently up to two and a half hours.  There was no evidence that any of the children returned from such walks in a distressed state or made complaints concerning them:  rather they were a popular activity and children were keen on them.  There was, however, the time and opportunity for abuse.

A house at Hereford Street featured in some of the charges.  This was a large 2-storeyed older house where the appellant lived as a boarder from 30 December 1985 to 23 May 1987.  For two weeks in December 1986 he looked after complainant A while the crèche was closed for the holidays, and she said that he touched her vagina at the house and this formed the basis of the first count on which he was found guilty.  Four other children complained of being taken to the appellant’s home where various forms of abuse occurred, some of their disclosures being consistent with it occurring at the Hereford Street house where he had formerly lived, although the appropriate counts referred to an unknown address.

The owner of the house gave evidence of almost continuous occupancy and he had no recollection of any crèche children visiting, apart from one occasion when a group came with another worker and the appellant to see the latter’s animals which he kept at the back.  He was unaware of the appellant returning after he vacated, while the Crown did not suggest that any of his subsequent addresses were involved in the abuse described, as they did not accord with the children’s descriptions.  There seems to have been no problem about travelling between the crèche and this house within the time expected for a normal group walk from the creche”.

The Court summed up the submissions under this head with the observation that although they called for careful consideration by the jury, there was nothing which in itself rendered the accounts by the various complainants inherently improbable or unworthy of belief.

Part III

In the third part of the book, Ms Hood examines (and criticises) the various Court processes which took place as a result of the Christchurch crèche case, including the prosecutions of five crèche staff and the Employment court proceedings.

In relation to Peter Ellis’ convictions this included the depositions, the trial and the two Court of Appeal hearings.  Ms Hood also examined the Royal prerogative process, the decision to decline legal aid for an appeal to the Privy Council and the Eichelbaum inquiry.  Broadly, Ms Hood concludes that the Royal prerogative process failed to operate as a safety net in the Ellis case because section 406(a) of the Crimes Act 1961 is cast in restrictive terms which did not allow the Court of Appeal to consider the whole case.  The Eichelbaum inquiry, she contends, was similarly flawed because its terms of reference were too narrow to enable Sir Thomas to consider the whole case and because Sir Thomas and the two experts accepted the flawed ideology which underpinned the international child sexual abuse awareness campaign.  Finally, Ms Hood argues that both you and Sir Thomas Eichelbaum “failed to acknowledge (and presumably realise) that if the Royal pardon is to serve as a constitutional safeguard against judicial mistakes the fact the judiciary refused to accept it had made mistakes could never be a valid reason to deny Mr Ellis a pardon”.


This part of the book raises some general issues about the institutional structures for appeals and the Royal prerogative process.  It is beyond the scope of this report to examine those issues which are in any event already being look at in other contexts[xxiii][23].  For the purposes of this report the real issue is whether the safety nets of the Royal prerogative process and the Eichelbaum inquiry have failed Mr Ellis.

You will recall that the Eichelbaum inquiry was established to look into those aspects of the case the Court of Appeal had suggested that it was unable to fully consider.  For that reason it is useful to focus on Ms Hood’s criticisms of the Eichelbaum inquiry.

Ms Hood argues that the terms of reference of the inquiry were deficient in three main respects:

that Sir Thomas Eichelbaum was required to review the investigation into events at the Christchurch civic crèche and interviews of the children “only in terms of the evidence given at the depositions and trial”;

that many matters of public concern were not addressed, including whether the decision to prosecute the five crèche workers was soundly based, whether evidence was improperly admitted or excluded in the Court proceedings, whether Peter Ellis had a fair trial, whether the children’s evidence was credible; and given the layout and functioning of the crèche, whether the abuse could properly have happened.  In a related criticism, Ms Hood argues that two important concerns raised in the Thorp report were not addressed, namely the “sanitising” of the charges against Peter Ellis[xxiv][24] and the misleading effect of certain provisions of the Evidence Act[xxv][25];

that Sir Thomas interpreted the term “investigation” in a narrow way and focused only on “the obtaining of evidence from the children” rather than the police investigation as a whole.

We assess these criticisms below:

The Factual Basis for the Inquiry

You will recall that one of the main factors which influenced the shape of the Eichelbaum inquiry was the impossibility of obtaining any better account of the facts than was given at the depositions and trial.  The inquiry was established almost 10 years after the events at the crèche and views of those involved which were already polarised at the time of the trial had become increasingly entrenched since then.  The problem was particularly acute in the case of the children themselves.  Quite aside from the obvious distress a further factual inquiry would cause them, it is difficult to see how the children could be expected to give evidence now which is any more reliable than it was at the time of trial in light of the intensive scrutiny and publicity about the case in the intervening years.  Equally, it is difficult to see how any further factual inquiry could proceed without the evidence of the children.

Ms Hood herself acknowledged the difficulties with an ex-post facto investigation in her account of her investigation relating to the closure of the crèche of which she said:

“…. Furthermore by the time I came to investigate the matter, it was obvious that many of the people involved were covering their backs.  In the course of my research I received so many conflicting accounts I was tempted to turn the issue into a board game.  The challenge for players would be to decide who was lying and who was telling the truth”.

In our view, the suggestion that there should have been a further factual inquiry (which is implicit in Ms Hood’s criticism) is quite unrealistic.

That Matters of Public Concern were not Addressed

The purpose of the Eichelbaum inquiry was to assess the safety of Peter Ellis’ conviction rather than to address public concerns about the case.  To this inquiry, matters such as the soundness of the decision to charge the crèche workers were irrelevant.  The crucial issue in assessing the safety of Peter Ellis’ convictions is the reliability of the children’s evidence, and it was on this issue that the Eichelbaum inquiry was focussed.  The other matters suggested by Ms Hood as making the inquiry too restrictive relate mainly to matters of process rather than of substance.  The process issues, such as whether evidence was properly admitted or excluded, the impact of the Evidence Act provisions and the so-called ‘sanitising of the charges’ were largely irrelevant to the Eichelbaum inquiry because Sir Thomas and the international experts were provided with all of the relevant material, including the entire transcripts of both depositions and trial, and the tapes of all of the conviction children[xxvi][26] (including those not played at the trial) from which they could make their own assessment.

Finally, we note that matters such as the layout and functioning of the crèche were the subject of evidence at both the trial and the depositions and therefore formed part and parcel of the Eichelbaum inquiry.  Accordingly, we see no basis in Ms Hood’s criticisms under this heading.

The Interpretation of the term ‘Investigation’

Ms Hood’s criticism under this heading is that Sir Thomas did not interpret the terms of reference as to include a wide-ranging inquiry into the police conduct of the case.  This, she suggests, can be compared with the prosecution of Arthur Allan Thomas and the IRA bombing suspects in Britain in which the judiciary found no merit in defence concerns that police misconduct may have affected the reliability of the evidence.

That analysis is plainly incorrect.  While the focus of the inquiry was not on the police handling of the case or indeed on whether any of the individual police officers involved behaved improperly, the impact of the police conduct on the reliability of the children’s evidence (in particular the possibility of contamination of the children’s evidence through the involvement of Detective Eade) was an integral part of the inquiry[xxvii][27].

As well as the criticisms of the terms of reference, Ms Hood is also critical of Sir Thomas’ approach to the inquiry and his findings.  For example, she suggests Sir Thomas “failed to carry out reality checks on the children’s evidence and failed to take seriously evidence showing the children’s evidence had been obtained by pressure and manipulation”.  However, in the final analysis these criticisms amount to little more than that she does not agree with the conclusions which were reached by Sir Thomas.

The Failure to Pardon

Ms Hood’s final criticism is that neither you nor Sir Thomas acknowledged that if a pardon is to serve its function as a constitutional safeguard against mistakes, the fact the judiciary refused to acknowledge that it had made any mistakes could never be a valid reason to deny a pardon.  In our view, this begs the question because it has not been demonstrated that the judiciary has made a mistake.

The test for a pardon has never been clearly articulated.  Sir Thomas Eichelbaum observed it would not be appropriate to impose inflexible limits on its exercise, but he considered a pardon would not be appropriate unless he was satisfied the convictions were unsafe.  It is certainly clear that a pardon can no longer be granted on the basis of an arbitrary monarchical right of grace and favour[xxviii][28].  In terms of New Zealand’s constitutional framework, decisions on criminal prosecutions are entrusted to the courts.  While the Royal prerogative exists as a safety net, it is a very serious matter in a society governed by the rule of law for the Executive to overrule a Court decision.  Such a step should only be taken if the decision is demonstrably wrong or for some other good reason.  This does not necessarily mean that the Executive could not act to overturn a conviction unless there is new, and legally admissible evidence, which shows the conviction is wrong, but it would need to be demonstrated that there are matters of very real substance which undermine the safety of the conviction.

The Ellis case has been the subject of a good deal of public anxiety and concern created largely by the media portrayal of the case, and more recently reinforced by Ms Hood’s book.  However, it needs to be remembered that neither the media nor Ms Hood have had access to all of the evidence and in particular have not had the advantage of seeing the children give their evidence.  But it is the children’s evidence which is crucial to the case.

Questions related to the reliability of the children’s evidence in the Ellis case have been thoroughly examined by the Courts and by the Eichelbaum inquiry.

Sir Thomas Eichelbaum concluded his inquiry with a reminder of the forensic history of the case:

“… After the investigations and the interviewing there was an unsually [sic] exhaustive depositions hearing, the record extending to more than 1000 pages.  Before being submitted to the jury the tapes and transcripts were subjected to close scrutiny in contested pre-trial applications.  In scope and number, the pre-trial applications were exceptional (Judgment No.1 recorded that in preparation for that hearing alone, in addition to reading the depositions the Judge had viewed about 39 hours of tapes).  The points which this Inquiry has considered about the quality of the interviewing, and the possibilities of contamination, were all traversed in detail, and were the subject of a series of careful judgments in the High Court.  As a result of rulings before and during the trial, some charges were dismissed.  There was a long and thorough trial, at the conclusion of which the jury had a lengthy retirement considering the charges.  After trial the pre trial rulings, as well as all other aspects of the investigation, the interviewing, and the trial process, were open for challenge in the Court of Appeal.  The Court of Appeal considered the case twice, once as a court of three judges in 1994, then as a court of five in 1999.  Only one judge sat on both appeals, so seven different Court of Appeal judges were involved.  In the appeals, the merits of the investigation and the interviewing were canvassed on broadly the same grounds which have been urged before this Inquiry.  None of the judges was prepared to uphold the challenges.  Appropriately, this background has not prevented a further Inquiry into the same subjects.  Full legal processes notwithstanding, the occasional miscarriage of justice can occur, and the procedure of petitioning the Governor-General, together with any resulting Inquiry, is available as a further protection.  What must be clear is that Mr Ellis’ case has had the most thorough examination possible.  It should now be allowed to rest”.

In our view, there is nothing in Ms Hood’s book which undermines Sir Thomas’ conclusion.

Val Sim

Chief Legal Counsel
Office of Legal Counsel

DDI:     64-4-494 9755
Fax:      64-4-494 9839

[1][1] Ms Hood suggests the ideology of the time was based on the proposition that:

Child abuse is a widespread problem with serious long term consequences

All males are potential child molesters

High priority must be given to discovering and treating victims of child sexual abuse and to convicting and punishing offenders.

The incidence is so high that any given accusation of molestation cannot be dismissed as implausible but rather is highly probable.

Ms Hood suggests that the law changes were inspired by a political agenda which was designed to secure a greater number of convictions to convince a doubting public that child abuse was an overwhelming insidious evil in the wake of the increasing number of false allegations of child sexual abuse.

[1][2] We doubt that the Child Protection workers involved would have regarded themselves as vindicated.  Mason clearly found there were errors and omissions in the handling of the A case.

[1][3] Ms Hood acknowledges that she approached the book with a particular collection of beliefs, assumptions and educated guesses and tentative conclusions about child sexual abuse (pg 70).

[1][4] Justice Williamson’s pre-trial ruling No3, in the Ellis case for example, referred to the publicity surrounding the events in Coventry and Cleveland and noted there was “wide-spread public knowledge of unsuccessful prosecutions or public inquiries overseas which have resulted from hysteria on the actions of hypervigilant parents as a counterbalance to the prejudice that Mr Ellis might suffer because of the nature of the charges he faced and the age of the children involved”.

[1][5] Section 185(A) Summary Proceedings Act 1957.

[1][6] Section 23D(i) Evidence Act.

[1][7] See Pipe, Henaghan, Bidrose, and Egerton ‘Perceptions of the Legal Provisions for Child Witnesses in New Zealand [1996] NZLJ 18, 23- referred to at pg 25 of the Law Commission report.

[1][8] See Davies, Wilson, Mitchell and Milson – Videotaping Childrens Evidence; An Evaluation (Home Office, London 1995) 21, Jurors responses to Children’s Evidence Given by Close Circuit TV or with the Aid of Removable Screens – Ministry of Justice Strategic and Specialisation Services Division, Western Australia, and Australian Law Reform Commission’s Report ‘The use of Closed Circuit Television for Child Witnesses in the ATC’ published in 1992.

[1][9] See Law Commission Preliminary Paper 26 ‘The Evidence of Children and Other Vulnerable Witnesses’ at pg 25.

[1][10] Sir Thomas’ view was contingent on an examination of expert opinion.  He did not in any way suggest that the absence of a direction about the need for special care caused any injustice in the Ellis case.

[1][11] Implicit in the Law Commission’s proposal is the proposition that directions about the suggestibility of very young children may be helpful in some cases.  Some Judges have expressed reservations about this on the basis that issues about the suggestibility of children are matters for expert evidence, rather than for judicial direction.  Whatever the outcome of this debate, in the Ellis case there was expert evidence about the suggestibility of children from both Crown and defence and the proposition that the children’s accounts had been “suggested” to them was one of the key planks of the defence.  Against that background, it is unlikely that any direction by the trial judge would have made a significant difference.

[1][12] Chapter 1, pg 53 Ms Hood cannot be using the term ‘evidence’ in its ordinary legal meaning since the videotaped interviews of the children were plainly evidence of child abuse.

[1][13] You will recall that the unlikelihood that the children could give reliable evidence having regard to the lapse of time and polarisation of views since the trial and the inevitable distress to the children were factors influencing your decisions on the shape of the Eichelbaum inquiry.

[1][14] Ms Hood gives as an example of epidemiological personalities Dr Iben Browning, a self proclaimed climatologist whose predictions of a catastrophic earthquake resulted in schools and factories in the Mississippi being closed.

[1][15] Ms Hood gives as an example a case where an unnamed young woman triggered an outbreak of hysterical pregnancies in a classroom of adolescent girls (sourced to Richard Kerr, the Lessons of Dr Browning Science 253 (1991)) and an outbreak of phantom gonorrhoea in a Pennsylvania School in the 1960’s.

[1][16] Pgs 198-200.

[1][17] Pg 200.

[1][18] For example, of Dr Zelas’ qualifications, Ms Hood says “Though she does indeed have an impressively long string of qualifications after her name, within her profession her qualifications carry less weight than one, hard-earned fellowship of the Royal Australian and New Zealand College of Surgeons”. (pg 121).  Of her training “Dr Zelas was pursuing her own fast track to expertise in a ten week study tour of trends in the diagnosis and treatment of child sexual abuse”.  Of her reputation for excellence Ms Hood says “it is a product of her knowledge of other people’s work, her media and networking skills and the sheer force of her personality”.

[1][19] See pg 448.  Messages Ms Hood says Karen Zelas imparted at seminars are that:

Child sexual abuse is an extremely dangerous and widespread problem.

Children who have been intimidated into silence are unlikely to disclose voluntarily.

When subject to expert analysis apparently insubstantial and unbelievable disclosures obtained through the use of persistent and leading questions can be found to be reliable.

[1][20] 1994 Court of Appeal judgement pg 27.

[1][21] This ideology she suggests is based on the view that child sexual abuse is a widespread and well hidden evil with serious long term consequences, perpetrators rarely confess, physical evidence is hard to find and abused children rarely disclose.  So the best way to uncover and treat this terrible problem is to find non-disclosing children and make them disclose.

[1][22] Pg 367.

[1][23] In particular there is ongoing work on appeal structures in the context of the project considering possible abolition of the Privy Council.  The Royal prerogative process and possible models for dealing with miscarriages of justice are also under review.

[1][24] This matter was considered by the Court of Appeal who rejected the suggestion that this resulted in a miscarriage of justice.

[1][25] In particular, section 23(a) relating to expert evidence and section 23H which instructs judges not to direct the jury on the need to scrutinise the evidence of young children generally with special care nor suggest to the jury that young children generally have tendencies to invent or distort.  Sir Thomas Thorp did not suggest that the Evidence Law provisions resulted in a miscarriage of justice, but did say that consideration should be given to reforming the law in this area.

[1][26] Ms Hood cites a passage from the report to the effect that international experts were only supplied with ‘relevant’ material and concludes that they were not supplied with all materials such as the evidence called by the defence.  That is not correct.  The international experts were supplied with the complete transcripts, including the defence evidence.

[1][27] For example, Sir Thomas Eichelbaum noted Detective Eade’s visits to the homes of some children prior to the interviews when considering possible contamination of the evidence and Detective Eade’s role as monitor when the evidential interviews took place.

[1][28] See Burt v Governor-General.