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


Conclusions and Recommendations

1.       To this date the Petitioner has argued for a pardon followed by an inquiry rather than a quashing of his convictions by the Court. That preference was indicated in his first petition, but is put much more emphatically in the second, which asserts that "The Criminal Justice System is Unable to Accommodate Your Petitioner's Case", and the Court of Appeal an inappropriate body to determine it. That petition also contends that financial and resource constraints have prevented the Petitioner from doing more than raise issues for further consideration, and argues that the work needed to take those issues further can only be done by a Commission of Inquiry with wide terms of reference To promote that claim it was sufficient, and perhaps more effective, to give a higher priority to accumulating matters for investigation than to establishing their individual or collective significance. It may also have appeared to the Petitioner and his advisers that, while his claim for a pardon without any further proceedings remains at large, action by them which facilitates a hearing by the Court could derogate from and prejudice that claim. Certainly, whether or not for that reason, the Petitioner has not kept up with the timetable settled by the Court of Appeal to ensure that a hearing of the reference would commence on 31 May 1999. That slippage, in combination with the proposed widening of the reference, makes further substantial delay a certainty unless steps are taken now to avoid that result.

More effective progress will in my view require the Petitioner's acceptance of the desirability at this time of promoting completion of the reference. That acceptance will be encouraged if the Petitioner is aware that consideration of a pardon can only follow completion of the reference, so that its expedition must be in his best interests.

If the view that the reference under s406 should be completed before any further consideration of a pardon is accepted by the Governor-General, I would recommend that his decision be communicated to the Petitioner and his advisers without delay, with a request for their assistance in promoting completion of the reference, and an offer of further financial assistance if that is needed to expedite the preparation for hearing.

2.       Although other issues may attain major significance those of greatest concern on the material so far provided, "the central issues", are -

·         The claims of defective interviewing techniques and of failure to assess or minimise the risk of "contamination" of the children's evidence (see part 4.2); and

·         The claim that the exclusion of evidence of allegations by complainant children which were not the subject of charges before the jury deprived it of evidence necessary to a proper assessment of the children's reliability (see part 4.4).

Not only are those clearly "central" issues, they are also those where an evidentiary basis has been most nearly attained. They are not simple issues. But if the opinions of Dr Parsonson (which are the cornerstone of these complaints) and the Ceci/Wood claim that creche/kindergarten cases involve special hazards, prove to have general support, it would in my view be difficult to argue against the existence of a serious doubt about the  safety of the Petitioner's convictions. If that view is correct, the shortest route to a soundly based resolution of the Petitioner's position is likely to be by evaluating those opinions. Part 4.2 discusses how that might be done. It suggests that if the advisers to the Petitioner and the Crown co-operate in obtaining and exchanging opinions from suitably qualified persons the matter should, if not resolved by agreement, be sufficiently advanced to put before the Court on 3 1 May

3.       Part 6.7 considers the difficulties involved in proceeding in the near future with a hearing of all the issues proposed to be referred, and suggests consideration of a hearing limited in the first instance to a few central issues.  That procedure would be more likely to succeed if the parties agreed upon the issues to be considered and went back to the Court with a programme for its consideration.

4.       As this opinion was being signed off I received from the Ministry copies of two faxes from the Petitioner's advisers -

·         Forwarding an opinion from Dr Lamb supporting the Parsonson opinion, and offering to supply other opinions when they are received subject to financial constraints; and

·         Asking that I obtain additional records from the police about the conduct and emotional stability of two of the officers involved in the creche inquiry.

As noted in Part 2.8 my brief is to give an opinion on the papers, not to conduct an investigation. But that apart, the character and emotional health of the investigating officers must be of less significance than the quality of the evidence they collected. The further opinion now received supports the case for giving priority of attention to the central issues rather than extending the scope of the inquiry.

5.       Matters of Public Interest Incidentally Arising

While the matters on which my opinion has been sought relate wholly to the Petitioner's claims that he has been wrongly convicted, his petitions raise questions of a wider significance about the appropriateness of the codes which currently govern the obtaining and presentation of the evidence of young children in this country.

The Petitioner's trial was affected by the need to apply ss.23G and 23H of the Evidence Act 1908. That issue is discussed in a separate Appendix to the opinion, as a matter of public interest arising out of, but not directly involved in, the questions asked of me

In 1996 the Law Commission released a discussion paper which proposed that Section 23G be repealed, and that Section 23H be "maintained in a modified form". The material filed in support of the Petitions strongly suggests that both provisions do need re-consideration, and that this should take into account overseas research. I recommend that the Law Commission be asked to advance its review of this area. Consideration should also be given to the current NZCYPS/Police protocol for the interviewing of child witnesses, for which purpose a broadly based working party similar to that which produced the UK Memorandum of Good Practice would seem appropriate.