The Christchurch Civic Crèche Case

Law Reform Index

Law of Evidence - Section 23G

Opinion for The Secretary for Justice
re Petitions for the Exercise of the Royal Prerogative of Mercy
by Peter Hugh McGregor Ellis

Sir Thomas Thorp
March 1999


Notes on the Significance of Sections 23G and 23H of the Evidence Act,

1.         Provisions Relating to Children's Evidence as at 1991/92

Concerns that existing procedures were limiting the availability of evidence from young victims of sexual abuse and were causing them unnecessary trauma led to the amendment of the Evidence Act 1908 in 1989 by inserting the new sections 23 A to 231 -

                                                                     i.            Allowing the use of screens and video taped evidence;

                                                                   ii.            Permitting expert evidence about the intellectual attainment, mental capability and emotional maturity of child witnesses, the general capability of children of like age, and the question whether a complainant's behaviour was consistent with that of a sexually abused child of similar age (s23G); and

                                                                  iii.            Providing the judges should not assert any need to exercise special care in scrutinising the evidence of young children, nor suggest to juries that young children generally have tendencies to invention or distortion (s23H).

Those provisions were considered by the Court of Appeal in R v Lewis [1991] 1 NZLR 409, a Crown appeal against orders excluding evidence which the trial judge thought had been produced by leading questions and may not have been the complainant's own recollection. In allowing the appeal, the Court said the purpose of the amendments was "to ensure that the old technicalities of evidence and traditional approaches to the giving of evidence, even the contents of the evidence in matters such as hearsay, shall not necessarily prevail against the desirability of getting at the truth and doing so by an effective machinery which enables children to give evidence without undue stress". At p410 the Court said of the tapes there under consideration –

"It is clear that many of the questions asked were of a somewhat leading or coaxing character. That was necessary to extract accounts from the children of what they say was done to them or other children in the group. It was a process of patient probing which elicited, as well as a great deal of information of no direct relevance, a certain amount of information which supports the charges."

Lewis was cited twice in the Court of Appeal's judgment in this case (at pp10 and 30) as setting out "the spirit and broad purpose" of the 1989 amendments.

While regulations were promulgated in 1990 governing the mechanics of video taping and the custody and security of videotapes, they did not endeavour to define good interviewing practice. In the result the principal guidance to those required to carry out interviews in 1991/92 was that given by the amendment and such decisions as Lewis. It seems likely that in practice interviewing protocol was determined locally. Certainly the interviewers' testimony was that the Christchurch unit "followed its own procedures" (N/E 247)

2.         How the Interviewing Technique and Contamination Issues Were Put Before the Court

Lengthy evidence was given at trial by Dr Karen Zelas a psychiatrist with long experience as a specialist in child psychiatry, who had been a member of the committee which did preparatory work for the 1989 amendments, and was well qualified to give expert evidence Dr Zelas acted as clinical supervisor of the members of the Christchurch SSU who had interviewed the creche children.

She was supportive of the way in which the interviews had been conducted. She gave advice about mental attainment, mental capability and other matters for which s23G authorises the receipt of expert evidence. She then turned to consider the case of each of the complainants and in each case testified to a list of behavioural characteristics which she said were "consistent with sexual abuse". Although she did not directly express an opinion as to the credibility of the individual complainants, her consideration of matters which might have pointed against credibility and advice that they did not necessarily do so can hardly have appeared to the jury otherwise than supportive of the children's credibility That effect would have been made more likely by the fact, that despite the length of her evidence, it did not identify any behaviour by any of the children as pointing the other way. In cross examination she was asked what characteristics were in her view inconsistent with abuse, and said that "she hadn't thought about that". In re- examination she was invited to reconsider that answer and advised that she did not believe it was possible to describe a group of symptoms that would not be consistent with abuse.

The defence called an Australian psychiatrist, Dr Le Page, to give evidence under s23G. It became apparent that Dr Le Page was not familiar with that provision. He construed "consistent with" as meaning "diagnostic" or "probative" of sexual abuse and on that basis reached the opposite conclusion to Dr Zelas i.e. that none of the complainants had displayed behaviour consistent with abuse. Dr Le Page did not know of recent Guidelines and thought that the New Zealand legislation needed to be amended to achieve fairness.

In dealing with the expert evidence the trial judge advised the jury that Dr Le Page "seemed to have misunderstood the New Zealand provisions, and that while the two experts appeared to be at loggerheads, actually they were talking about different concepts, or different things". Although they had "used language and different approaches", he thought that "you may think overall there is a substantial area of agreement between them"

Neither expert witness made any reference to accepted standards of interviewing procedure, nor any suggestion that multiple allegation creche cases could create special hazards.

3          Subsequent Development of Interviewing Guidelines

In the United Kingdom a joint working party set up by the Home Office and Health Department produced in 1992 a 56 page Memorandum of Good Practice

In New Zealand an unsuccessful endeavour to settle national guidelines was made in 1993/94 and the first such guidelines, the Joint NZCYPS and Police Operating Guidelines were promulgated in May 1996 These differ in detail from the UK Memorandum of Good Practice, but the two have substantial similarities Thus, on issues relevant to the Christchurch interviews –

·         Both envisage limiting the number of interviews of any child, in general to one interview, with the New Zealand protocol recognising that there may need to be up to three interviews in exceptional cases. Of the seven children whose complaints resulted in convictions, one child was interviewed once, four children three times, one child five times and one child six times.

·         Both protocols favour early advice to the child that it is quite acceptable, if the child cannot remember or does know the answer to a question, to say so.  In numbers of interviews no such advice was given, in others it was only given at a late stage.

·         Both recommend a neutral approach, and warn against suggestive or leading questions. There were leading and suggestive questions.  A common practice, when the child had given a negative answer to an inquiry about the possibility of some improper behaviour by the Petitioner, was for the interviewer to indicate that the interviewer had been told otherwise - frequently saying that the interviewer's information had come from the child's mother.

·         Both protocols recognise that the use of anatomically correct dolls by interviewers may affect the reliability of the information obtained as a result and suggest they only be used to establish the meaning of terms once the child has given a free narrative account and its substance is reasonably clear. Anatomical dolls were used in many of the interviews, often before any narrative account of abuse had been obtained.

The Wood Commission's review of what it called "the Kindergarten Cases", was acutely critical of the Police interviewing procedures, and set out a list of "guidelines". It is clear that the majority of its suggestions were observed by the SSU interviewers, but of interest are the criticisms of

·         Multiple interviews;

·         Leading questions; and

·         The absence of critical attention to discrepancies.

The Wood Commission further considered the significance of complaints of "satanic ritual abuse" cases, which it said could not be fitted into any neat clasification [sic] but could conveniently be described as sexual abuse cases involving multiple victims, multiple offenders, mind controlling tactics and bizarre or ritualistic behaviour. It considered that additional caution was required in testing such allegations.

5. [sic]   The Need for Review of Sections 23G and 23H

The 1989 amendments are widely believed to have been a reaction against decisions excluding the evidence of very young children because of a belief that they were incapable of giving reliable evidence By that date it had become generally accepted that three and four year olds, although there are limits to their understanding and ability to articulate, can within those limits be reliable witnesses At the same time it seems also to have become generally accepted that very young children are in general more suggestible than older children or adults.

A whole series of decisions has laboured over the practical difficulty of admitting expert evidence in terms of s25G without that evidence having the effect of taking over the jury's right to decide credibility. The present case exemplifies those difficulties. It also raises the question whether a provision which envisages expert evidence on whether a complainant's behavior was "consistent or inconsistent" with the behavior of sexually abused children of the same age group has any purpose if expert opinion is that no behavior can be said to be inconsistent.

If indeed it is now accepted that very young children are in general more suggestible than their elders, it may also be appropriate to review 25H( c), which instructs judges – 

"Not (to) instruct the jury on the need to scrutinise the evidence of young children generally with special care nor suggest to the jury that young children generally have tendencies to invention or distortion."

Both provisions were considered in a Law Commission discussion paper on "The Evidence of Children and Other Vulnerable Witnesses" released in 1996. This proposed the repeal of s23G, and that s23H be "maintained in a modified form". The present case gives further grounds for reconsidering the appropriateness of the 1989 amendments, and the 1996 NZCYPS/Police guidelines, in the light of current scientific opinion.