Section 23G of the Evidence Act is nonsense, writes the editor of the New Zealand Law Journal, Bernard Robertson. It has caused countless unfair convictions and should be repealed.
A Court of Appeal decision given just before last Christmas will reopen controversy over the convictions of not only convicted child sex abuser Peter Ellis but hundreds of others convicted during the 1990s of sexual abuse of children.
The case concerns a section of the Evidence Act, section 23G, which was rushed through Parliament just before Christmas 1989. The section allows clinical psychologists to give evidence about whether the behaviour of a complainant is "consistent or inconsistent with" sexual abuse.
The section is nonsense. To a scientist, "consistent with" simply means that the two things can possibly happen together.
In fact, all behaviour is consistent with sexual abuse and no behaviour is inconsistent. So evidence given the way the section is written is meaningless.
Worse, ordinary people, such as jurors, tend to believe that "consistent with" means "supports" or "tends to prove". In fact, consistency does no such thing. Evidence given under the section is therefore highly likely to lead to unfairness.
My co-author and I wrote an article about this in a legal journal in 1990, but the sexual-abuse industry was not listening. We pointed out that the evidence was meaningless unless we knew how likely the behaviour was to occur if the child had been abused and how likely the behaviour was to occur if the child had not been abused.
The Ellis trial is a classic example of the sort of thing that went on. The prosecution produced a witness who said that the behaviour of some of the children was consistent with their having been sexually abused, without explaining what the witness meant by the word "consistent".
The defence then tried to produce a witness who would say that the behaviour was consistent with other causes and the judge ruled the evidence out because it was not covered by section 23G.
Since then, numerous appeal cases have stemmed from the use of section 23G. Prosecutors seem to fall into two classes: those who tell me that they never use the section and those who use it ruthlessly and use all sorts of procedural manoeuvres to prevent the defence from questioning evidence given under the section.
Now the Court of Appeal has issued a judgment saying exactly what we said in our article in 1990. The court's reasoning was that Parliament cannot have intended irrelevant, meaningless evidence to be heard in court, so the section must mean that the court must be told how consistent the behaviour is with sexual abuse and how consistent it is with other causes.
The analysis in this judgment is far better than in either or both of the two Court of Appeal judgments on Ellis, the first of which contained no worthwhile analysis at all.
The comments by the Court of Appeal in this case show that the way section 23G has been used in the past has inevitably led to an unfair trial.
The Ellis case is a particular example, but there are many more. In many of these cases the accused will not even have appealed because some men, baffled by sudden allegations by their children or other relatives, have refused to appeal for the sake of the family.
All convictions in which section 23G evidence has been given must now be examined and if the evidence does not comply with the Court of Appeal's rules, the convictions should be quashed.
This will parallel what is happening in Britain, where hundreds of cot-death murder cases are now being reviewed. This is because an eminent professor of child psychiatry gave evidence in these cases of a syndrome which he claimed to have discovered called Munchausen's syndrome by proxy.
After years in which the professor's bluster, coupled with the silence and support of the politically correct, intimidated the courts, the whole idea has been denounced as nonsense and all these convictions are now set to be quashed.
The reaction of the Ministry of Justice to the new Court of Appeal case has been bizarre. It advised the minister that the judgment applied only to the facts of the specific case. Any student in Laws 101 who read the two key paragraphs in the judgment and then said that would receive a fail mark.
There are other problems with section 23G, chiefly that it allows evidence to be given only by clinical psychologists and not by the scientists who actually spend time researching such questions (and researching whether clinical psychology is of any use).
Section 23G is and always has been nonsense. As the Court of Appeal has now interpreted it, it is unnecessary because relevant and probative evidence is always admissible in court unless there is a rule to prevent it. The use of the section has caused countless unfair convictions. All those cases should now be reviewed and the section should be repealed.