The Christchurch Civic Creche Case

2000 Documents

Submissions to Eichelbaum Inquiry: Index


Submission by the Crown

The Eichelbaum Inquiry:
Ministerial Inquiry into the Convictions
of Peter Hugh McGregor Ellis

Submissions on Behalf of

The Solicitor-General,
The New Zealand Police,
Department of Child, Youth and Family Services
24 July 2000

Crown Law Office (S P France and M J Thomas)
Telephone: 64-4-472-1719, PO Box 5012, DX SP 20208,
Facsimile: 64-4-473-3482, Wellington Central


Table of Contents

I.        Introduction

II.       The Investigation

A       Key Factual Events

B       Organisation
(1) Police
(2) Specialist Services/Social Welfare


III.      Mass Allegations

A       The Schedule Reports
(1) Orkney Report
(2) Cleveland Report
(3) New South Wales Police Inquiry
(4) San Diego Report
(5) Conclusion on Reports

B       Mass Allegations General
(1) Introduction
(2) Consideration of Writings on Mass Allegations and Some Issues

(a)      Writings

(b)      Specific Issues

(i)       Interviewers

(ii)      Competing Hypotheses

(iii)     Contamination Evidence

(iv)     Distinguishing true and false Allegations

(v)      Public Meetings

(3)      Would the Information Available Today on Mass Allegations have Affected Justice Williamson's Decisions

(4)      Should the Jury Have Known More?

IV.     Interviewing


A       Schedule Reports

(1)      New Zealand Law Commission Paper

(2)      Memorandum of Good Practice

(3)      Joint CYPFA/Police Guidelines


B       The Ellis Case Interviews

(1)      Reported Interviews from Two Mass Allegations Cases Considered

(a)      State v Michaels

(b)      The McMartin Pre-School Scale

(2)      Dr Lamb's Research

(3)      Interviewing Generally

(4)      Conclusion on Interviews



V.      Conclusion


I.        Introduction

1.       As envisaged by the Terms of Reference these submissions are filed by the Crown Law Office on behalf of the Solicitor-General, the New Zealand Police and the Department of Child Youth and Family Services who have responsibility for the specialist interviewers. The Terms of Reference refer to the Department of Social Welfare but that does not exist as an entity, and Child Youth and Family are the relevant organisation.

2.       The submissions are limited as much as possible to paragraph 1 of the Terms of Reference, as requested by your letter of 10 May 2000. Where possible, references are given to the relevant passages in the depositions or trial evidence (paragraph 1(b)).

3.       For convenience the following terms are used

The Inquiry - referring to the Ministerial Inquiry into the convictions of Mr Peter Ellis, and including Sir Thomas Eichelbaum;

The Ellis case - referring to the complaints, investigation, trial process and appeal process;

The Crown - referring to those organisations and persons on whose behalf these submissions are filed.

4.       The Crown's understanding of paragraph (1) of the Terms of Reference is that the primary focus of the Inquiry is the current state of understanding concerning mass allegation child sexual abuses. The Inquiry is required to identify the internationally accepted best practice for investigating mass allegations and for interviewing children within that context.

5.       For reasons which will become clear in the submissions, the Crown does not consider that such a blueprint for mass allegation cases exists. There is very little actual empirical research into mass allegation cases as a separate phenomenon in the sense of considering whether different rules and standards should be applied to these cases. None of the Guidelines and Reports referred to in the Schedule recommend a best practice for these cases other than perhaps agreement on the need for a joint inter-agency approach and early co-operation and planning. Concerning interviewing techniques, there is little or nothing that focuses on interviewing children in a mass allegation context, and how, if at all, that should differ from interviewing other child sexual abuse victims.

6.       This understanding of the current position places the Crown in some difficulty as it is, in effect, a belief that the Inquiry is based on a fundamental misconception. However, to provide as much assistance as possible to the Inquiry the submissions describe the investigation and interviews that occurred in the Ellis case, describe the present organisational structures for the investigation of child sexual abuse, review the Schedule Reports and other writings, and revisit the issue of the formal interviews.

7.       It has been assumed that the Inquiry has access to the material filed in the latest appeal, including the Crown submissions. Aspects of these will be simply referred to, rather than unduly lengthening these submissions by repetition. If the Inquiry does not have any of this material they will of course be provided. In terms of mass allegation cases and Reports, these submissions have followed the Terms of Reference and are generally limited to those matters listed in the Schedule to the Terms of Reference. If submissions are particularly required on any case or Report other than those listed in the Schedule, then the opportunity to do so is specifically requested.

8.       The structure of the submissions is:

I         The Investigation

A description of the investigation, and the organisational structures in place.

II        Mass Allegations

8.1.1     Consideration of the Schedule Reports: Orkney, Cleveland, New South Wales and San Diego. These Reports are compared to the Ellis case investigation as previously described.

8.1.2     Mass allegations discussed
This section discusses more generally the concept of a mass allegation. It suggests that the issues explored pre-trial and trial are the same issues still identified today as arising under the "mass allegation" label.

III       Interviewing

8.1.3     Consideration of the Schedule Reports: The New Zealand Law Commission, the Memorandum of Good Practice and the Joint CYPFA/New Zealand Police Guidelines;

8.1.4     Discussion of the current status of "research on interviewing techniques" and submissions on the quality of the Ellis case interviews.


II.       The Investigation

A       Key Factual Events

20 November 1991   ▓▓▓▓▓  the mother of ▓▓▓▓▓▓ complained to the creche that her son had indicated he "hated Peter's black penis".

21 November 1991   Ellis placed on temporary leave.

25 November 1991   Detective Eade, who had been a member of the Child Abuse Unit in Christchurch since 1990, was advised by ▓▓▓▓▓▓ of the complaint (T 483/3-7). He liaised with Sue Sidey of Christychurch Specialist Services Unit (T 483/10). Sidey had also been contacted by ▓▓▓▓▓▓ (T 267/25). ▓▓▓▓▓▓ is interviewed and makes no disclosure (D 892/30).

28 November 1991   At its request, Detective Eade met the Management Committee of the Christchurch Creche. Detective Eade's brief of evidence, read at depositions (p 890), summarised it this way:

"On 25 November 1991 I received information in relation to the Christchurch Civic Child Care Centre and specifically in relation to the defendant, Peter Hugh McGregor Ellis, who I now identify before the Court.

The first information came from the previous witness.

At that time we were dealing with concerns only and no allegations had been made. Because of the possibility that this could be an involved inquiry, I liased with Sue Sidey of the Specilaist Services Unit to formulate a method for investigation.

Later the Parent Management Committee of the creche arranged a meeting with all parents who at that time had children at the creche.

This was held in the creche building in the Cramner Centre. 2 December 1991. The aim was to give parents information on what we were going to do and give them advice on how to talk to their children if they had concerns.

Sue Sidey spoke at that meeting. Also present were members of the Parents Committee and representatives from the Christchurch City Council.

An undertaking was given that if any parents had concerns about their children, their children would be interviewed in relation to those concerns."

2 December 1991   The public meeting referred to bt Detective Eade was held at the creche. Those present are outlined in the passage cited from Eade's brief. Both Eade and Sue Sidey spoke (483/1 ff)

Sue Sidey details what was said in her testimony (pages T267/268). Specific indicators of sexual abuse were not discussed (but in cross-examination she accepts there may have been reference to bed wetting - "its possible" (T282/10), she explained to the audience the interview process, and she told parents they could contact her if they had concerns. ▓▓▓▓▓▓ (D 504/21) confirmed that the general tenor of the advice was to ask open questions and to avoid putting words in children's mouths (see also T 194/30ff).

28 November to 20 December 1991   Interviews were conducted with xxx with no disclosures being made. On 22 December 1991 Sue Sidey issued a report to this effect.

20 December 1991.   There having been no disclosures at this point, Detective Eade wrote to the Christchurch Council (who ran the creche) and advised that the inquiry was closed due to no disclosures having been made (T 495/25)

30 January 1992   ▓▓▓▓▓▓ was interviewed by Sue Sidey. The interview was to result on 31 March 1992 in charges being laid, but these particular charges were not pursued at trial (T503/1 ff)

30 January - 29 October 1992   Many children were interviewed through this period. The interviewers were Sue Sidey, Linda Morgan and Cathy Crawford. Colin Eade initially acted as monitor but then in April 1992, as the result of further resources being allocated, he stopped acting as monitor. (T 483/34)

31 March - Knox Hall Meeting   A second meeting of parents was held in late March when it again became apparent that the issue of sexual abuse at the creche was a live one.

At the time of the meeting their had been disclosures by ▓▓▓▓▓▓ and ▓▓▓▓▓▓. At this point nine children had been interviewed, and a further 17 had been referred. By 21 April 1992, 107 children had been drawn to notice. Forty-four had been interviewed and a further 50 were awaiting interview (almost all of the diagnostic variety). It was this increase that saw Linda Morgan seconded from Auckland (DSW figures).

Prior to the meeting, on 26 March, Dr Zelas appeared on the Holmes Show.

Peter Ellis was first charged on the day of the meeting with indecently assaulting ▓▓▓▓▓▓.

Those present at the meeting included Detective Inspector Pearce (he addressed the meeting; see his deposition statement), Detective Senior Sergeant Ell, Detective Sergeant Mitchell, Sue Sidey, Colin Eade and Karen Zelas and an observer. Sue Sidey addressed the meeting in similar terms to her address to parents at the initial creche meeting in December.

Prior to the Knox Hall public meeting, a preliminary planning meeting was held on 26 March 1992. (The minutes of the meeting are included in the Materials, volume 1, tab 1).

A document was handed out at the Knox Hall meeting. It was prepared by Detective Sergeant Ell. (Materials, volume 1, tab 2).

4 August Meeting   ▓▓▓▓▓▓ arranged a meeting at the ▓▓▓▓▓▓ household on 4 August. In attendance at that meeting were Detective Nicholl, Detective Eade and Jan Gillanders (D 421/20)

At the meeting there was made available a list of known disclosures to that point. The list had been compiled by ▓▓▓▓▓▓. This list was considered by Justice Williamson in the course of several rulings as it has always been a plank in the contamination theory; they are also referred to in his summing up.

2 November 1992   Depositions commenced on 2 November 1992/

B       Organisation of Investigation

(1) Police

9                           There was already established a Child Abuse Unit within the Christchurch Police. Detective Eade was a member of the Unit from 1990; others in the Unit were the head of the Unit, Detective Mitchell, Detective Nicholl (From April 1992) and also Detective Ell, who was responsible for preparing the handout at the Knox Hall meeting.

10                         Detective Senior sergeant Ell was appointed to take charge of the Inquiry on 25 March 1992. He had previously been involved (1986 - 1989) in preparation of Police guidelines for investigating child abuse crimes, and was instrumental in setting up the first Child Abuse Unit within the New Zealand Police. The recommendation for further social workers (see next section) came from him.

(2) Specialist Services/Social Welfare

11.                        There was already established a Specialist Services Unit in the Department of Social Welfare, part of which consisted of an Evidential Videoing Unit. The Unit was the second of its type, which were being progressively established through the country. The Christchurch Unit was established in 1989, and followed upon the initial unit in South Auckland.

12.                        The Specialist Services Unit was under the Superintendence of the Regional Psychologist, Mr John Watson. Attached to the Video Interviewing Unit at that time were two psychologist/interviewers - Suzi Hall and Sue Sidey, and a specialist interviewer, Cathy Crawford.

13.                        In April 1992 Linda Morgan was seconded to the Christchurch Unit from Auckland to assist with the increasing number of interviews required by the Ellis Inquiry.

14.                        The interviews were primarily conducted by three specialist interviewers who were all very experienced in the field (sourced from briefs, and testimony at depositions and trial):

14.1                                Sue Sidey: Has an MA (Hons) in psychology. She had been a part-time counsellor for the Auckland HELP Foundation, and at the time of the Ellis interviews had already conducted in excess of 400 interviews. She had been involved in training other evidential interviewers, and in conducting and facilitating workshops and seminars in the area of sexual abuse;

14.2                                Cathy Crawford:  She did not testify at trial because none of her interviews were the basis of trial charges; she did testify at depositions. She has a Bachelor of Social Work; her early experience was in Australia working in the area of child protection. In 1987 she had commenced doing diagnostic interviews of Princess Mary Hospital in Auckland. In 1990 she was attached to the South Auckland Video Unit and then established a Video Unit in central Auckland;

14.3                                Lynda Morgan.  She has a Certificate in Social Work and had been working in the field for over nine years. She had conducted in excess of 400 interviews. She worked in Auckland as a Senior Specialist Interviewer from March 1989 to September 1991 and then resumed again in March 1992 where upon she was seconded to Christchurch. She had participated in national and international seminars, published material in the area and presented numerous seminars.

15.                        In addition to the use of three experienced interviewers, other structural systems were put in place to assist with the investigation:

15.1                                Three specialist social worker positions were created for the project. Job descriptions were prepared and are included in the accompanying materials (Materials, volume 1 tab 3). These three positions were:

15.1.1                                      Prosecution Support, the primary focus of which was working with those families whose children were complainants (Jan Gillander)

15.1.2                                      Operations Support, the primary focus of which was organising interviews and assisting in that area (Donna Ellen)

15.1.3                                      Counselling Support, the primary focus of which was dealing with and assisting non-complainant creche families (Jan Crossan). This position was funded by the Christchurch City Council.

15.2                                Dr Karen Zelas was used in several capacities. She describes her functions in testimony bust essentially she was assisting the interviewers by reviewing parts of interviews with them to discuss technique issues, she attended the Knox Hall meeting to give assistance if needed, and indeed answered some questions; she reviewed some tapes for the Police to assist in the prosecution decision.

15.3                                Suzi Hall was kept out of the Ellis case so that she could attend to the other interviews and tasks that the Evidential Videotaping Unit had. She also provided support and supervision for the Inquiry interviewers;

15.4                                The overall Unit Manager, Mr John Watson, is himself an experienced psychologist and was responsible for oversight of the Unit.

16                         It is submitted that several features mark out this investigation as being professional, and as will be seen from consideration of the inquiries covered in the Schedule Reports, as being significantly ahead of its time:

16.1                                There was early inter-agency co-operation with Detective Eade and Sue Sidey meeting early on;

16.2                                New Zealand was considerably advantaged by already having established specialist units for such investigation with both Police and Social Welfare, each with clearly understood functions which kept separate the various roles;

16.3                                The quality and experience of the interviewers;

16.4                                The support services installed for both the interviewers (eg Zelas, Hall) and the operation generally (eg the new social work positions);

16.5                                The early involvement of the Crown Solicitor's office to provide expert advice;

16.6                                The planning undertaken for the two public meetings with each public meeting itself being preceded by a planning meeting;

16.7                                The use of public meetings as an opportunity to provide parents with advice so as to minimise the risks of contamination and improper questioning. The range of expertise available at those meetings;

16.8                                The quality of the record keeping with both the technical aspect of recorded interviews, and also the informal record keeping by interviewers and parents alike being notable.


III.        Mass Allegations

A       The Schedule Reports

17                The schedule to the Terms of Reference lists four reports that have a "mass allegation genesis - Orkney, Cleveland, New South Wales and San Diego. The first section of Part III addresses each of those Reports. The submissions outline the factual background leading to the Report, and then identify the relevant concerns and recommendations made in the Reports. Those matters are then in turn compared to what occurred in the Ellis acse. Finally, although the forum is now different, in the absence of any other guidance Mr Ellis's use of these Reports in the latest appeal provides some insight as to what significance might be attributed to them. These submissions are therefore addressed.

(1) Orkney Report

18                         The background facts leading to an inquiry were that several children from one family (W) reported abuse. Initially the abuse reports related to intra-family activity. Later the reports extended to allegations perhaps involving a local Minister, and then to children from other families and their parents. These families were known to each other. The children from W family were removed early in the process; the children from the other families were also removed from their families without themselves having at that stage made any allegations of abuse or even having been questioned. The removal was based solely on the W children's allegations. The concerns over the removal processes were the impetus for the Inquiry.

Orkney Report: Criticisms of Process - Interviews

19                         The interview process was subject to several and varied criticisms:

19.1                                Lack of clarity as the purpose of the interviews; for example were they investigative or therapeutic?

19.2                                Lack of training of the interviewers which in turn is reflected in some detailed criticisms of some of the interview techniques, for example lack of interview planning, the way in which denials were handled by interviewers, and the emphasis by the interviewers on believing the children;

19.3                                Inadequate facilities, which most particularly include either the inability to record all interviews, or the failure to so record;

19.4                                The number of interviews (up to nine or 10) within a short time, and all prior to any actual disclosure (in New Zealand these would be termed diagnostic interviews);

19.5                                Technical failutes such as not keeping drawings made by the children during the interviews.

Orkney Report: Criticisms of Process - Investigation

20                         Observations concerning the investigation process include:

20.1                                As with all reports, the need for inter-agency co-operation is stressed, and it's absence criticised.

20.2                                The need for an early joint meeting and consequent planning is emphasised;

20.3                                There was criticism of the over careful approach to contamination which meant the necessary exchange of background information between agencies and interviewers did not occur;

20.4                                There were criticisms of the extent to which parents were not kept informed. Here it is necessary to bear in mind that the general Inquiry context was abuse within the family, and the Report is recognising the need to balance the needs of the possibly abused children on the one hand against the rights of possibly "suspect" parents on the other;

20.5                                The Report notes there are still no guidelines at that time (post-cleveland) but also notes (15.23):

                                               "The investigation of child sexual abuse is a matter of immense complexity, where no single infallible guideline is available except in the simplest cases."

21                         The report notes (15.21) it is making no attempt to provide comprehensive guidance. It foresees Guidelines being developed which would cover cases of abuse including those of multiple abuse. (To the extent that the Memorandum of Good Practice can be seen as the fulfilment of this prediction, it is notable that no specific coverage of mass allegations is undertaken in that later document either)

Orkney Report: Comparison with the Ellis Case

22                         As the earlier description of the Ellis process highlights, most of the concerns in the Orkney report are not found in Ellis. Rather the Ellis case is an illustration of an investigation which has recognised the importance of the factors identified by the Report. For example:

22.1                                The experience of the interviewers

22.2                                The technical aspects such as recording of interviews, preservation of exhibits, etc;

22.3                                The clear understanding of what the interviews were about and their purpose (see for example the extensive cross-examination at depositions of Sue Sidey, pages x-y);

22.4                                The early establishment of a team approach with involvement of Police, Specialist Interviewers, Intermediary Social Workers, and the Crown Solicitors office;

22.5                                The decision (discussed elsewhere) to keep parents generally informed by way of public meeting and the issuing at those meetings of guidance designed to minimise contamination and subsequent evidential difficulties.

Orkney Report: Mr Ellis's Court of Appeal Submissions on Orkney


23                         Concerning Orkney these are found at page 58 (Volume I) of the appellant's submissions:

23.1                                The submissions cite from paragraphs 15.22 and 15.23 of the Report with a focus upon the need for investigators to keep an open mind. (The context in the actual Report was the need for balance between taking allegations seriously on the one hand, and keeping an open mind on whether the allegations are well founded on the other.);

23.2                                Mr Ellis' submissions use this aspect of the Report to focus upon alleged non-disclosure by Detective Eade, and more generally the proposition that Detective Eade had a closed mind.

24                         No dispute can be taken with the general proposition concerning an open mind. It is as true for child abuse allegations as it is for any investigation. Not surprisingly it is not accepted that Detective Eade had a closed mind, but rather than get into such a debate, assistance can be gained from a consideration of some external circumstances:

24.1                                The Reports all stress the need for a multi-disciplinary approach, as indeed occurred in the initial Ellis case. One benefit of such an approach must be to guard against the risk that one person's view will distort the process (as happened in Cleveland);

24.2                                It should be remembered that in December of 1991 Detective Eade closed the initial inquiry on the basis that there was insufficient evidence to proceed with it. This does not suggest a closed mind, or a mind committed to prosecution;

24.3                                The impetus for the resuscitation of the creche inquiry were disclosures by children. Such disclosures were made in the course of videotaped interviews conducted by very experienced, non-Police, interviewers. It is not credible to suggest that Detective Eade somehow drove the prosecution;

24.4                                The final stark reality is that the context for the Ellis case is quite different from those inquiries which are reviewing how a process could have gone so wrong. In the Ellis case it did not go wrong; any personal beliefs Detective Eade had are irrelevant, but in any event are supported by the verdicts and subsequent appeal decisions.

(2) Cleveland Report

25                         The background facts leading to this Inquiry were concerns over an apparently alarming increase in reports of sexual abuse of children in Cleveland, Middlesborough. The Report canvasses wider aspects of the investigation of child sexual abuse cases, but has as its core focus a consideration of how a theory of "reflex relaxation and anal dilation" was able to be championed by one or two medical practitioners so as to create the spectre of a sudden dramatic crisis of sexual abuse on children (125 children from 58 families in a five month period). As such the context is obviously markedly different from Ellis. It is not a case of mass allegation in any sense of inter-related complainants or offenders. That said, some aspects of the Report touch more generally on investigation of allegations of sexual abuse.

Cleveland Report: Criticisms of Process and Recommendations

26                         The central criticism to emerge was the lack of a proper understanding by the main agencies of each others functions in relation to child sexual abuse. Also noted was a lack of communication between these agencies. For example, it would seem the Police absented themselves at an early stage, having reached unfavourable conclusions about the diagnostic technique.

27                         As with Orkney, there also emerges confusion over the purpose of interviews with the same lack of understanding or precision as to whether the interviewer contact with the child was diagnostic/evidential on the one hand, or therapeutic on the other.

28.                        At paragraph 12.34 of the Report there is set out a list of principles applicable to interviews; all the professionals consulted were in agreement on these. The principles make familiar reading, and can be seen very much to inform the detailed cross-examination of Sue Sidey at depositions (see pages 26/33 ff).

29                         Contamination was not an issue in the Cleveland Inquiry.

Cleveland Report: Comparison with the Ellis Case

30                         The points made in this section under the Orkney Report relate similarly here and will not be repeated. No doubt as a product of New Zealand's size, and lack of inter-agency jurisdictional concerns, greater co-operation is apparent in New Zealand from the outset. One must also attribute this co-operation to the greater skills and experience of the New Zealand participants.

31                         As touched on under Orkney an observation that can be made about these reports is that they arise in the context of failed prosecutions (San Diego and New South Wales) or serious misdiagnoses (Orkney, Cleveland) The process differences immediately and overwhelmingly apparent in the Ellis case perhaps illustrate why the Ellis process has in fact withstood the subsequent intensive scrutiny to which it has been subjected.

Cleveland Report: Mr Ellis' Court of Appeal Submissions on Cleveland

32                         Concerning Cleveland, these submissions are found at page 55 (Volume I) of the submissions. The points there made include:

32.1                                A quote from paragraph 4.145 of the Report which generally concerns the on-going need of investigators to continue to assess credibility. It is in essence the "open mind point" already discussed under Orkney. The context of the Cleveland passage was a little different in that it was dealing with a policy type directive to placement social workers. However, as noted under Orkney, no challenge is made by the Crown to the basic proposition that one should keep an open mind.;

32.2                                Quotes are taken from paragraphs 12.7, 12.8, 12.9 and 12.32 of the Report. The main thrust of these is to establish the proposition that children can make incorrect allegations. Again, as a proposition no-one would dispute that. The issue remains whether sufficient procedural safeguards were in place to make it right to allow the jury, in the normal way, to make that assessment. The Crown proposition has always been, and remains, that there were sufficient safeguards. In the particular investigation context now being considered, reference is again made to the inter-agency approach, and the use of trained independent interviewers. The processes were clearly significantly advanced on those used in any of the Reports;

32.3                                A series of propositions about interviews are made. These are addressed more generally elsewhere and will not be repeated here.


(3) New South Wales Police Inquiry

33                         The circumstances giving rise to this Report are more varied than in the other Reports. As part of a general inquiry into the New South Wales Police it seems to have been suggested that paedophile groups were operating with the knowledge and indeed with the assistance of the Police. As part of the Inquiry an analysis was done of failed prosecutions in two kindergarten cases - the Seabeach Kindergarten (paragraph 7.93-7.200) and the North Shore Kindergarten (7.201-7.220)

New South Wales Report: Seabeach Kindergarten Case

34                         The history of this investigation is detailed in the Report. General observations of the process highlighted by the Report include:

34.1                                The lack of training of the Police (7.94) who were responsible for much of the interviewing (NB particularly Footnote 906 of the Report).

34.2                                The inadequate history of the investigation prior to actually interviewing the children (7.95-7.134)

34.3                                The resort to "pro-forma" lists of questions for parents to ask children once resource pressures come to bear (7.106)

34.4                                The age of the children which should influence the style of questioning and did influence the "competency" issue on which the charges were eventually dismissed (7.193)

34.5                                The use of a public meeting (7.150);

34.6                                The use of a probationary Constable who had no experience in child sexual abuse cases to interview most of the children (7.151). At times she interviewed the children alone and could not keep a proper record (7.153). At other times she carried out interviews in the presence of other children (7.153). By contrast the specialist child abuse persons (FACS) were not used at all (7.157);

34.7                                Difficulties with the communication with the parents and an apparent increasing disillusionment of the parents with the system (7.173-7.179). Of interest is the apparent conflict over whether there should be a further public meeting (7.178)

34.8                                The detailed list of inadequacies set out at paragraph 7.197 of the Report

34.9                                The conclusion at 7.200 that no finding is made as to whether the allegations were in fact true.

NSW Report: North Shore Kindergarten

35                         This involved allegations against the director of a kindergarten. Unlike Seabeach the matter was referred reasonably early to a Child Mistreatment Unit, headed by a Police Officer with no experience in child sexual abuse prior to his appointment to the Unit (7.203). His staff were described as a "burnt out" Police Constable and a Police pilot, neither of whom had any experience (7.203). Of interest:

35.1                                The investigation was more controlled than Seabeach.

35.2                                Many of the interviews were conducted by FACS (a specialist group), but there seems to have been a belief that, before a prosecution could commence, reinterviewing was required by either Police or DPP staff;

35.3                                This confusion and uncertainty over who should or can interview, and the uncertainty whether repeat interviews were therefore required, appears to have led the CMU director to determine against bringing any prosecution. Interestingly, on the face of the scant information available, a positive prosecution decision would seem to have been much more justified here than in Seabeach.

NSW Report: Criticisms and Recommendations in Report

36                         At paragraph 7.221 the Report notes the need for a centralised well resourced agency, a multi-disciplinary approach and joint interviews, together with recording of allegation interviews "at least by sound and preferably by video".

37                         Following paragraph 6.191 a list of recommendations are made in relation to Child Sexual Abuse Investigations. These do not seem to be "mass allegation specific" and contain general recommendations about training and resourcing to meet any claims of sexual abuse.

NSW Report: Comparison to Ellis

38.                        Perhaps dealing first with the second of the case studies, the North Shore Kindergarten case, it is difficult to draw many lessons from what essentially was a prosecution decision not to continue. The key factor which emerges seems to be confusion and a lack of definition in roles between the agencies. This manifested itself either in repeated interviews by different agencies or the perceived need for such. No similar difficulties have ever been suggested in relation to Ellis.

39.                        The Seabeach case, rightly described in the Report as a debacle (7.198), certainly perhaps gives one increased comfort about the Ellis case. It becomes very apparent that the conduct of the Ellis investigation was substantially more professional and informed than anything able to be achieved in these case studies. It can be comfortably asserted that any New Zealand Court would similarly dismiss the Seabeach prosecutions, in the unlikely event that they were ever brought against such a background.

NSW Report: Mr Ellis' Court of Appeal Submissions on New South Wales.

40                         The appellant's submissions on this Report commence at page 66 (Volume I)

40.1                                The submissions set out a series of points taken from various of the expert witnesses. Generally, the points are reflective of research discussed elsewhere, and do not require specific comment here. The specialist's points are followed by a recitation of the Report's concerns about the Seabeach Kindergarten case. The Crown has earlier expressed the view that the approach taken in Seabeach carries little or no resemblance to the quality of the Ellis case investigation. These will not be repeated in this section.

40.2                                Satanic Ritual Abuse   At paragraph 58 of Mr Ellis' submissions (page 77) there is a section concerning Satanic Ritual Abuse Cases, and the discussion of the topic in the New South Wales report. In response to this topic:

40.2.1                                      The Crown never portrayed the Ellis case as a satanic abuse case. There were certainly what might be called "bizarre" or fantastical allegations but these were not alleged as satanic or ritual abuse;

40.2.2                                      There was only the one group activity charged, namely the Circle count in relation to ▓▓▓▓▓▓ (Count 19). It was this charge on which the women were discharged, and concerning which Mr Ellis was acquitted;

40.2.3                                      The presence of bizarre or fantastical allegations was the subject of much appeal consideration, initially in the affidavits of Drs Parsonson and Dalenberg, and then by these two and Dr Lamb in the "responses" each filed. As it developed a common theme emerged: the research was not at a stage where it could be said that the presence of bizarre or fantastic allegations assists with determinations of credibility. Dr Dalenberg has research that suggests it occurs more often in (verified) serious abuse cases, the other two experts dispute this research and Dr Dalenberg certainly did not want to claim any assertions could yet be made on the basis of it;

40.2.4                                      A common theme and popular belief has been that the Ellis jury did not have any information about the wilder allegations. This is incorrect. Some allegations made by children not involved in the trial were understandably not before the jury, but concerning the complainant children it was open to the defence to use any aspects of the children's tapes they wished to use. That this was in fact the position has been established in successive appeals.

On a factual level, below is a list of some of the information which was before the jury. The examples are clear enough to show that the jury must have been aware of the presence of wilder accusations by the children. There is nothing in the current state of literature that could possibly support any further submissions at trial on this aspect than were made at the time.

(a)      ▓▓▓▓▓▓ - Videotapes played were 6048 and 6050. He spoke of Peter putting people in the oven wrapped in blankets. This included ▓▓▓▓▓▓ himself. It was discussed at trial (pages 73/74) in evidence in chief where he expanded on it by discussing men guarding the ovens. He spoke of men such as Spike and Boulderhead putting tomato sauce on peoples ears (75/20). He spoke of Mr Ellis using a ladder to travel between buildings and the children having to do likewise (75/30). Cross-examination occurred about the roof (77/20), about Mr Ellis dipping children into the pond (80/30) and ovens (81/20);

(b)      ▓▓▓▓▓▓ - (Videotapes 6009 and 6011 played). She was asked about her claim to have driven the blue van (105/39) and perhaps interestingly when challenged on this accepted she did not in fact do so (106/1)

(c )     ▓▓▓▓▓▓ - (Videotapes 6023, 6024 and as requested parts of 6025 and 6026). He was challenged about stories he had told about guns (127) and his friend being run over (127/32). Again under cross-examination he accepted that it was not something he saw (128/8)

▓▓▓▓▓▓ was also asked about his claims of seeing a dead giraffe. He explained he was talking about a giraffe skin (128/15). As with other complainants he however did not accept he was mistaken about the core allegations;

(d)      ▓▓▓▓▓▓ (Tapes play 6004, 6005 and 6007). He was asked about his claim that five men had put their penises up his bottom. In cross-examination he explained it was different days (111/10) He was cross examined about trapdoors and mazes (162/35). He was asked about his claims of having sticks and burning paper put up his bum (163/28), and his claim that several of the women were there at that time. In relation to his claim of having a needle inserted in his penis, he was cross-examined about this, and about his claim of real blood flowing as a consequence onto the floor (164/25). He also talked of being put in an oven and was cross examined about being put in cages (165/12), trapdoors in the Masonic Lodge (166/15) and being put in coffins and being buried in the ground (166/25);

(e)      ▓▓▓▓▓▓ (Tapes played 6029, 6030, 6031 and 6032). In addition to these tapes, she was asked about incidents on the other tapes. For example at 186/30 ff she was about her claim that Gaye put a knife up her vagina;

40.2.5                                      At paragraph 66 (Page 74) of Mr Ellis's submissions, ritual abuse cases are equated as being one and the same as mass allegation cases. It is difficult to see the basis for such an easy transference of labels. It may be that any particular case exhibits some features found in one or the other or both, but the Wood report extract is very much focused on Satanic Ritual Abuse.

40.2.6                                      It has to be observed in the Ellis case that there are no Satanic Ritual Abuse convictions. The case was not about them, and any charges that seem to reflect them such as Count 19 resulted in the jury expressing a doubt;

40.2.7                                      An over-easy application of extracts such as those cited at paragraph 66 runs the danger of preventing child abuse prosecutions. Considerations such as those listed there are always to be borne in mind, and any deviation from them needs to be explored but cannot perse be seen as a bar to prosecution. The Wood Report is not a document that is dismissive of the existence of this abuse nor which seeks to discourage prosecution (see for example 2.61-2.70)

40.2.8                                      The Seabeach case is a classic illustration of the type of irrelevant Inquiry the Ellis case is often compared to. If a New Zealand Court was faced with such facts and process, it too would no doubt stay any prosecution. The reality is that the Ellis case was a dramatically different and improved example f such a prosecution.

(4)             San Diego Report

41                         The rationale for this report is not early to discern. Part of its origins are clearly a failed prosecution of Dale Akiki, but the detail of that is not known. The report has quite a strong organisational focus on deficiencies in the structure of the San Diego District Attorney's Office, and its lack of a detailed strategy for investigating and prosecuting child sexual abuse.

42                         An impetus for the Report seems to be identifying changes that are needed to better be able to prosecute child molestation cases. This is a focus that does not sit easily with the Ellis case in which prosecutions were successfully obtained. However, some investigational recommendations do emerge.

San Diego Report: Criticisms and Recommendations Contained in the Report.


43                         It is noted (page 8) that more resources are needed for multi-victim/multi-perpetrator cases.

44                         Again evident in this case, as with the other Reports, is the confusion between therapy and investigation (page 15). It arises under a heading of "contamination by therapists", but the underlying concern is again the lack of delineation in the respective purposes of interview and therapeutic contact with the children

45                         Also under the contamination heading there is a reference to meetings with the parents, and the fact that parents discussed things even though cautioned not to do so (page 14). The only conclusion drawn by the Report on this aspect is seemingly conclusion 9 on page 31 that witness contamination reduces the reliability of testimony; there is no resultant recommendation in the next section.

46                         It is fair to observe that a theme again emerging is the need for early meeting of involved professionals so as to ensure a cohesive approach to the investigation.

47                         It seems that the Akiki prosecution was sourced in an over-zealous application of the "Summit" non-sexual symptoms of sexual abuse. AT page 10 it is emphasised that the prosecutor relied primarily on these to the exclusion of the other factors there listed, such as convincing disclosure and medical evidence.

San Diego Report: Comparison with Ellis Case

48                         As noted earlier there was by comparison an early team approach established in the Ellis case. Further the primary evidence relied on in New Zealand has for some time been videotaped disclosures by the children who are then available for cross-examination.

49                         The dual investigative/prosecutorial role of the District Attorney's office is not easily transferred to the New Zealand situation.

San Diego Report: Mr Ellis' Court of Appeal Submissions

50                         The appellant's submissions on the San Diego paper are found at page 77 (Volume I). The submissions on this Report do not raise any issues not extracted from the previous Reports. There is brief reference to Ritual Child Abuse and to the need, discussed earlier, to separate therapy and evidential interviewing.

                   (5) Conclusions on Reports

51                         The Crown submits that a consideration of these Reports can only result in a sense that New Zealand was very advanced at the time of the Ellis case. Both the Police and Social Welfare had specialist units; there was co-operation but also independence. All interviews were by trained interviewers and were recorded. Prosecution decisions were taken by Police and there was input from an early stage from the Crown Solicitor's office. It was an investigation that really reflected most of what the Reports criticised as being absent in their particular case studies.


B            Mass Allegations Generally


(1)             Introduction

52                         In considering mass allegations as a phenomenon, it is necessary to put aside any discussion of the research into interviewing technique per se. That is addressed in the next section of the submissions. This part of the submissions has as its focus the concept of mass allegations and whether, separate from ordinary interview technique debates, there is a new body of understanding about mass allegations. Do mass allegations introduce different concerns? Should one interview a mass allegation child differently?

53                         It should also be stated at the outset that the concept of mass allegations is not in itself unique. In New Zealand, for example, those involved in the criminal justice process have had considerable exposure to mass allegations within the family setting. These are usually several complainants with one alleged offender, as in the Ellis case. In the family setting possibilities for contamination are obvious; so too is the tension between on the one hand allowing family life to continue and perhaps be healed, and on the other minimising the risks to the trial process by limiting contact between participants. Both considerations need to be addressed; it is not possible to favour one to the exclusion of the other. In these cases too, the usual method of ensuring protection is full disclosure of contacts, and cross-examination.

54                         In the Court of Appeal submissions, counsel for Mr Ellis identified five characteristics of mass allegations:

The trigger,
Parent anxiety
Other parents questioning their children
Air of accusation
Parental contact

55                         If one accepts for the moment without argument that these are traditionally present in creche cases (and to them might be added publicity), the issue that must be addressed is "what is their significance"? One can easily accept the obvious point that mass allegations mean that there are greater risks that some well-recognised concerns will have in fact eventuated. For example, the possibility of contamination is obvious.

56                         The Crown's submission, however, is that when one goes to the published writing, it does not take one beyond this point. There is no consideration of mass allegations as a separate phenomenon, at least in the sense of actual research into whether different rules and assumptions should apply to these cases. The Reports already considered illustrate this point. Each has its genesis in a mass allegation, albeit of very different types. Each identifies the need for an early plan and joint agency co-operation, but beyond that there is little that represents a blueprint for mass allegations either as an investigation or indeed for interviews within that context. Further, consideration, for example, of documents such as the Memorandum of Good Practice provides no assistance either on whether one should approach a mass allegation interview differently from an "ordinary" interview.

57                         The conclusion of the Court of Appeal on this topic is submitted to be correct:

"However, no new contaminating factor is involved in mass allegation cases; the fact that there are mass allegations merely tends to heighten the effect of known factors, thereby compounding the problems of unreliability…

The characteristics of the case that make it stand out were identified by the interviewers at depositions as being the size of the inquiry, the numbers of children, and the resulting complexities, and the fact that the referrals came from the Police rather than families. It is apparent from the transcript that the very matters which are now raised as relevant to the issue of mass allegations were recognised and traversed."

58                         This section of the Crown submissions:

58.1                                Considers any writings on mass allegations and some specific issues

58.2                                Looks at the issues relevant to mass allegations that were before Justice Williamson pre-trial,

58.3                                Looks at the information before the jury and available to be put before the jury as the defence wished,

58.4                                Submits in conclusion that the issues remain today as they always have been and as they were appreciated at the time of trial,

(2)      Consideration of Writings on Mass Allegations, and Some Issues

                            (a)    Writings

59                                  In preparing these submissions the Crown sought assistance on identifying mass allegation writings. Our understanding is that there is very little that can be seen as mass allegation specific, and even then much of it is descriptive rather than research based.

60                                  To explain this further, one can take an article cited substantially in the affidavits filed in the Court of Appeal: Garven, Wood, Malpass and Shaw (1998) "More than Suggestion: The Effect of Interviewing Techniques from the McMartin Preschool Case"  (Materials, volume 1, tab 4)  That article analyses the various errors that could be found in the interviews conducted in the McMartin pre-school case; it then combines these errors into a single interview and seeks to assess how many mistakes children can be induced into making when presented with such a package (as always there is never any evidence that in the actual case (eg McMartin) any one child was exposed to all the errors). For present purposes the point is that the article is not about the effect of such questioning in a mass allegation context compred (sic) to its effect in an ordinary interview context; it is in the end just another study on interview techniques with no particular insight into mass allegations as a separate issue. This comment is true of almost all the published writing. (This article is discussed further in the next part of the submissions on interviewing.)

61                                  An article by Bybee and Mowbray (1993, p768) (Materials, volume 1, tab 5) considers the investigation and prosecution difficulties that day care cases present. An introductory passage provides a helpful overview of some of the issues:

"While no sexual abuse case can be described as easy to investigate, day-care abuse appears to be specially difficult (Finkelhor et al., 1988). Some of these difficulties stem from the very young ages of the victims, their limited verbal abilities, and their vulnerability to threats and intimidation (MacFarlane & Waterman, 1986). Other aspects of day-care center abuse contribute to prosecution difficulties as well: lack of cooperation from center staff and less corroboration by alleged perpetrators (Finkelhor et al., 1988), and absence of physical evidence (DeJong, 1985). Records of abusive activities (e.g., videotapes and pictures) are also rare (Hollingsworth, 1986), perhaps because perpetrators frequently have sufficient warning about investigatory efforts so that they can destroy such evidence before it is found (Finkelhor et all., 1988).

Day-care sexual abuse investigations are also hampered by public revulsion and disbelieve. The notion that very young children could be sexually misused by adults entrusted with their care is abhorrent to communities and terrifying to parents. For many, it may be psychologically easier to dismiss abuse allegations out of hand (MacFarlane & Waterman, 1986)."

                                      The article goes on to summarise various methods that have been suggested as means of assessing the validity of these allegations. It concludes by suggesting some techniques are better than others, but in the end limits itself to suggesting fruitful directions for future research have been identified.

62.                                 Contrasting articles can be found which suggest that the day-care abuse phenomenon is history repeating itself with reference back to the child witch trials (Henningsen (1996) (Materials, volume 1, tab 6)) and conversely which detail a totally verified example of abuse in a day-care centre in circumstances where other workers were seemingly oblivious (Abramson et al, 1997 (materials, volume 2, tab 7). Other articles explore the characteristics of the victimisation and its impact on the children (Faller, 1988 (Materials, volume 1, tab 8)). The proposition of "future research possibilities" already noted in Bybee and Mowbray (1993) is repeated in 1997 by de Young who suggests the day care centre cases presently tell us very little but "do set an agenda for the international child abuse professional community for research, practice and discussion". A 1999 article (Schumacher and Carlson (Materials volume 1, tab 9)) concludes:

"Research regarding child abuse in day care settings is sparse and in its infancy. Nevertheless, consideration is warranted of risk factors identified by current research. Practical issues must be addressed. For example, positive male models are considered desirable …."

63.                                 The focus of that article is looking at ways of making day care centres safer, but the introductory proposition about sparse research is submitted to be correct. There is not a body of research that really considers mall allegation as a topic in itself. The primary focus has been to use them as a source of material for further analysis of interview technique such as Garven et al article.

64                                  Dalenberg, who was the Crown expert at the appeal, has written an article "Overcoming Obstacles to Just Evaluation and Successful Prosecution of Multi-victim Cases" (Materials, volume 1, tab 10)

65                                  It appears in a book on interviewing trauma victims edited inter alia by Faller. The article begins with a rather severe, and perhaps extreme, summary of how those who criticise the day-care cases typically describe them.

66                                  However she moves from there to explore some of the prosecution difficulties that these cases present. These include the likelihood of multiple interviews and complaint delays, the likelihood that there will be more leading questions since interviewers are likely to be more knowledgeable about the offending, the likelihood of bizarre detail, the likelihood that some children will be severely traumatised and what impact that may have on the interview, the likelihood of cross-contamination, and the fact that there is likely to be at some stage media, advocacy groups and a child's therapist involved. Also addresses are parental support groups.

67                                  In relation to these difficulties Dalenberg suggests strategies that may protect the investigation from these concerns. Hers is not a proposal that the risks can be eliminated, so much as managed and minimised. From an investigation viewpoint, there is material in the article that can be considered for the future; it is important, however, not to see a first piece such as this as anything more that what it is - the beginning of a process rather than representing a settled position or understanding.

68                                  Apart from this material, the Crown is unaware of a body of writing that focuses upon mass allegations in a way that support any proposition that there is an internationally recognised best practice model for such cases. The Crown's position remains that mass allegation cases must inevitably raise on a greater level some recognised risks. There is a need to try and minimise them. Further, whether the risks have materialised, and to what extent, can be explore both pre-trial and at trial. Beyond that there is no best practice model.


                            (b)    Some Specific Issues

69                                  Looking at the submissions on mass allegations filed by Mr Ellis on the appeal, the following submissions emerge (page 79):

69.1                                         It is vital that all potential victims be interviewed by well trained, professional interviewers as soon as possible;

69.2                                         Evidence in support of multiple competing hypotheses should be sought because of the risk of contamination;

69.3                                         Investigators must be vigilant in assessing contamination influences;

69.4                                         Once contaminated it is typically impossible to distinguish fact from fiction

70                                  To these issues might be added the issue of public meetings. Each is addressed in turn.

                                      (i)        Interviewers

71                                            At first blush, the complaint about interviewer training seems a strange point given it is common ground that the Ellis case interviews were all conducted by trained professionals who worked in a specialised unit dedicated to that activity. However, further reading of Mr Ellis's sunbissions shows that the proposition is that the parents' contact with their children as "interviews". It then follows that the parents are not trained nor are their interviews recorded.

72                                            The obvious response to this submission is that these are not "interviews" in the sense used in the relevant literature. Further as Justice Williamson notes (Ruling 2, page 11):

                                                         "Ideally the evidence of complainants in cases of this nature would arise clearly and precisely and without any previous questioning. Such a position, however, would be unreal. It just does not happen. Victims of sexual crimes are affected by emotional and relationship factors to such a degree that, even entirely genuine and truthful evidence, may be given hesitantly and only when the right occasion presents itself. It would be a somewhat false and artificial standard for Courts to impose in such cases a requirement that parents should have had no detailed communication with their child about such matters prior to any admissible evidential interview. The need for the child to be interviewed only arises usually when some relevant information has been given to the parent or to another carer. Understanably parents would discuss such matters with a child who was worried or who was about to attend an interview. The problems may come, however, from the nature and extent of a parent child communication. As usual with such matters, it will be a question of degree"

73                                            It is also not in fact the case in any event that these "interviews" were wholly unrecorded. Some parents kept very detailed notes which were disclosed, introduced as exhibits and which were the subject of extensive cross-examination (deps 512 ff)

74                                            The reality in the Ellis case is that the formal interviews were p[rofessionally done and recorded; and the informal interviews were the subject of exhaustive exploration.

75.                                           Further it is clear that the two public meetings were very useful vehicles in which to advise parents how to act and not act. As Justice Williamson observed the perfect world does not happen, and of course what may be perfect for the criminal justice process is not necessarily what is best for child and parent. It is a matter of recognising and balancing the competing tensions; for the criminal justice system it is a matter of assessing departures frtom the ideal and making a judgment on their significance. That judgment can only ever be informed in the end by the actual evidence as to what did and did not happen.

                                      (ii)       Competing Hypothesis and
(iii)      Contamination Evidence

76                                            These two issues address the same point. It is that the interviewers have a role in identifying contamination, and that this was not done. The Crown's response is that everyone was alive to the issue of contamination and took steps to identify possible occurrences. It is certainly the case that the interviews with the children were not the primary means by which contamination was identified, but to expect them to be misunderstands the primary role of the interviewer.

77.                                           The evidential interview is the child's primary evidence in chief. It may be expanded upon at trial, as occurred in Ellis, but it is the main evidence. The interview is conducted by persons trained in dealing with children and in questioning them in ways that extract the information in an admissible way and which also protect the child from further trauma. They also provide insight into future treatment needs. The interview is the opportunity for the child to tell his or her story. Cross-examination comes later.

78.                                           That said, it should not be thought that the interviewers were not alive to the need to "test alternative hypotheses" as Dr Lamb describes it. To understand what is meant by the idea of testing alternative hypotheses the following extract from a book co-authored by Dr Lamb is illustrative of the proposition:

                                                         "In addition to covering such required topics, interviewers must continually monitor whether the child's reports are clear and unambiguous. The questioning and clarification phase is the time to focus on testing alternative hypotheses about the allegation.

Finally, children may not master concepts such as "know", "remember", and "guess" until after seven years of age, making it difficult to phrase questions about the source of information in a way that all children will understand (Abbeduto & Rosenberg, 1985). Until there is empirical support for specific instructions, interviewers who need to explore the possibility that adults have suggested events can attempt to determine whether individual children can accurately answer questions about the source of information before asking similar questions about the reported abuse (eg Kuehnle, 1996). The following example illustrates this process:

I.        I need to ask you a question, but first I need to make sure that you will understand. So I'm going to tell you about my dog. He is this big, and he is black. What colour is my dog.

C       Black

I         How do you know that my dog is black?

C       Because you told me.

I         Okay. You told me that Sam took his thing out and tried to rub it against you. Do you know that because you saw it with your own eyes and you remember, or did someone tell you that Sam took his thing out?

C       I remember.

                                                         [Investigative Interviews of Children. A guide for Helping Professionals. Debra A Poole, Michael E Lamb, p142"]

79                                            The Ellis interviewers did exactly what Dr Lamb counsels. Set out below are just two examples. There are many more, and a fuller list is appended to these submissions (Materials, volume 1, tab 11). They make the point very clearly that these interviewers knew what they were doing. Of course one can debate whether it should have been done more, but to assert the need for such testing is not of itself to assert a proposition that represents anything novel, or anything absent in the Ellis interviews:

Second Interview

"S      .. and um alright so um now did anybody tell you to say that stuff about Peter or did that really happen.

N       That really happened

S       That really happened

N       Yeah" (38)

Third Interview

"S      How do you know he would punch people

N       Don't know I just know

S       Is that something you've seen or something that's happened to you before

N       Oh I just …

S       Just thinking he might

N       Yep."   Page 19

80                                            The issue of identifying contamination is, however, rather wider than just considering what was asked in interviews. To consider just the interviews is to ignore all the other information kept by the parents, obtained by the "investigators", disclosed to the defence, and used as the basis in the cross-examination. One need only look to the extensive cross-examination at depositions of each of the parents to see the fruits of this information gathering.

81                                            The obtaining of this contamination information was not a matter of chance, first, the public meetings played a role in advising parents to keep records. Further, the interviewers took a leading role. See for example the trial testimony of Sue Sidey as to what information she obtained from the parents (page 269)

                                                         "the information supplied by the parents before I spoke to the child would generally cover the statements the children have made and in what context and it covers the responses to the statements and it covers any other behavioural indicators and also I asked them questions about the poss. Of any other life events explaining the indicators and it covers when they first noticed changes, were they still going on. I also talked to them about who the children's friends were at creche and who they were now and did they have contact with other creche children. Some of the behavioural indicators, some other indicators I would ask about would be physical indicators or medical problems that may have arisen, what had been done about those, and I would also cover the family names or child's names for body parts and any other sort of family peculiarity I should know about should the children mention it. In general those meetings with the parents, sometimes they would last half an hour which is a long time, we usually keep them quite brief."

82                                            The gathering of this information served two purposes: first, it informed the interviewer, second, it was recorded and disclosed, ensuring the integrity of the process.

(iv)     Once Contamination Occurs, it is not Possible to Distinguish Fact from Fiction

83                                            This assertion is one that is quite difficult in many ways to respond to. It is hard to know what it means. It cannot be being suggested that one illustration of contamination means that one has to walk away from the case, such a counsel of perfection is in the end nothing more than an abuser's charter. Very little research is ever cited in support of this assertion. Some studies have taken interview situations where children are induced to make mistakes, and then sought to see whether trained experts can sort out fact from fiction. The apparent inability of these experts to do so is then cited in support of the idea that one cannot distinguish. Such research always seems to ignore the reality that the information available to the jury is rather richer than in these artificial constructs where there is never testimony from parents, never evidence or otherwise of opportunity, never medical evidence in support and always never cross examination of the children, let alone testimony from the accused.

84                                            In theory there could be a case where the proved contamination is such that it is not safe to allow a prosecution to proceed. It cannot be identified in abstract; it is a matter of degree, just as Justice Williamson said. The research gets nowhere near identifying a pre-determined level and it never will. The process followed in Ellis, and in so many other cases of abuse, remains the right one:

84.1                                                   Give early and repeated guidance to the non-professionals (eg the parents);

84.2                                                   Use professionals where you can

84.3                                                   Keep good records and disclose what is known

84.4                                                   Test these very issues at depositions

84.5                                                   Test them again by way of pre-trial rulings, augmented by further evidence from professionals.

84.6                                                   Place the evidence before the jury

84.7                                                   Review it on appeal

85                                            At each stage (and one could add into this list a further stage, namely proper exercise of prosecution discretion in charging) the original complaints and disclosures have been identified, assessed, some made the basis of charges, others weeded out and then the charges themselves also further weeded out.

86                                            At the end of the day it is submitted that there have been no advances in mass allegation learning and understanding that says this process is not valid and cannot work. The Ellis case is an illustration of a proper process which, as much as our system can ever say, did work.

(v)      Public Meetings?

87                                            One final issue needs addressing. It is the question of whether the public meetings were the right thing to do. The Crown's position is that at the time they were, and that today they would still be used. The issue of public meetings provides a further example of the Crown's other contention: there has been no research undertaken into whether they are a good thing or bad thing despite the fact that they are recognised as a common characteristic of mass offending. And so one is left, as in all the other areas, to apply experience to the issue.

88                                            The Christchurch creche was an inner-city creche where the families of the children came from all over Christchurch. There was no common "suburb-link" and probably the only uniting feature was that in most cases the child's parent(s) worked. It was a large creche.

89                                            The public meetings served the purpose of presenting an opportunity to keep parents informed, to allay fears, to limit rumour, to minimise contamination risks, tand to advise parents generally on how to deal with the children in a way that would minimise any (further) trauma.

90.                                           In the end it is difficult to suggest a better way to achieve this than the public meeting. A 1993 article by Bybee and Mowbray (Tab 12) examines community responses to day-care cases. Two of the issues there discussed are the at times difficult relationships that develop between investigators and parents and also publicity. It emerges that there are balances to be struck - media attention can sensationalise but attempts to suppress information can fuel rumour and "unofficial sources". Also the need for the prosecution to be circumspect produces an unbalanced picture in situations where the accused and his or her supporters have free reign in a media anxious for coverage. Parents feel frustration that their side is not being publicly advanced. None of this is of course unique to child sexual abuse, it is an ever present tension. But the use of a public meeting to keep parents informed remains a balanced approach to one aspect of the investigation.

(3)      Could the information Available Today on Mass Allegations have Affected Justice Williamson's Decisions?

91                         In one sense the question being asked of the Inquiry is this: if what is known today about mass allegations had been available pre-trial, would or should the charges have gone ahead? In order to answer this it is necessary to traverse the pre-trial rulings so as to illustrate exactly what issues were before His Honour back then. The Crown submission is that once one has an awareness of these issues, the proposition that there is now a "mass allegation" understanding that would charge Justice Williamson's assessment completely fails. It fails for two reasons:

91.1                                As the Court of Appeal found, the underlying issues were well known and tested, even if the label was not used,

91.2                                As already submitted, there is no new research into mass allegations that advances matters significantly.

92                         Ruling 1 (Page 2) observes:

"Pre-trial applications in such cases must involve the manner in which the child or children are to give evidence and often involve the admissibility of videotaped interviews of the children. All counsel claim that this case is unique because of the number of children involved; the manner in which the allegations arose; the number and length of complainant interviews; and the variety of charges. Certainly the depositions were lengthy. In order to prepare for this hearing it has been necessary to view approximately 39 hours of videotaped interviews and to read over 1000 ages of evidence as well as examine numerous exhibits."

93                         Ruling 2 (Page 1):

"In this application the Accused seek an order excluding the children's evidence. It is argued that the children's evidence has been unfairly obtained or that its prejudicial effect outweighs any probative value it may have. Very detailed and thorough submissions have been presented in support of these submissions. The main thrust of them is a contention that the procedures followed in this case by the Police, the parents and the interviewers were so wrong and oppressive that the resulting videotaped interviews and the children's oral evidence should be excluded on the grounds of unfairness."

94                         In Ruling 2 His Honour accepts he has the discretion to rule out the evidence and in effect stop the trial. The Crown's Court of Appeal submissions cited at length from His Honour's summation of the accused's arguments. The passage is long but given the exercise currently being undertaken by the Inquiry, its repetition is necessary. The arguments advanced to Justice Williamson were summarised by him in this way:

"1       The manner in which the investigation was initiated by the police and was presented to the parents of children of the creche by way of a public meeting. In particular the way in which the subject of sexual abuse and Peter Ellis were presented to the meeting which made it clear that 'actual allegations' had been made but failed to advise the parents the allegation was of an innocuous and nebulous nature. The impact of the meeting was such that it generated a climate of fear about sexual abuse without clarifying the concerns which had arisen and also portrayed Peter Ellis as the abuser.

2.       The direct and suggestive questioning of children by their parents, despite being cautioned against doing so. The direct questioning was specifically about Peter Ellis and specific alleged acts.

3.       The collating and sharing of information between parents through support groups and the like which fuelled the climate of fear and was then used by parents to directly question children.

4.       The manner in which the disclosure interviews were conducted by DSW in particular by the use of direct and suggestive questioning, multi-choice questioning, repeated questioning, repeated interviews and the use of anatomically correct dolls."

95                         The Ruling's subsequent discussion of these issues reinforces the overwhelming impression that everyone was very much alive to the concerns now advanced under the "mass allegation" label.  Matters focused on include the public meetings, the questioning by parents, the sharing of information, and the conduct of interviews.

96                         Although often overlooked the Ruling then continues to consider specific parts of the videotape interviews which Justice Williamson had viewed, and to require excisions

97                         Ruling 4

"Children's evidence in sexual abuse cases is often given by way of videotaped interviews. Such a procedure has been permitted since 1989. During the interviews children are spoken to and questioned in a relatively relaxed setting by trained and supervised interviewers. Frequently there are toys, books, papers, pencils or crayons available for the children who are encouraged to talk as they play.

In this case it is claimed that the videotaped evidence of a number of children is so defective that the charges against the accused, Peter Ellis, should not be permitted to proceed to trial. The defects contended for are inconsistencies within the children's evidence, contamination by parents of other children, faculty procedures, and a lack of supportive testimony."

98                         The ruling then considers each count in the indictment. It should be noted, for example, that the then Count 7 was by agreement discharged because based on a disclosure from a blatantly leading question.

99                         Also in Ruling 4, under unfairness (page 13), His Honour addresses the impact of sensationalised media reports, and the effect of widespread and emotional community reactions. Included in the material he considered were (page 15)

"A summary of all news coverage of the charges in the form of a chronological schedule, some particular news clippings, notes made by ▓▓▓▓▓▓ which have been distributed to some parents, and photographs of graffiti ▓▓▓▓▓▓  In addition I have viewed general television coverage of the case against the Accused."

100                       Of interest His Honour notes (page 16) that in fact most of the recent publicity was disparaging of the children's evidence, describing it as unreliable, his assessment was that the publicity would probably have assisted Mr Ellis' case.

101                       Also in the area of publicity, the comments on page 17 of the Ruling are relevant

"The third point made by counsel for the accused also has some strength but must be balanced with widespread public knowledge of unsuccessful prosecutions or public inquiries overseas which have resulted from hysteria or the actions of hyper-vigilant parents. Events in Coventry (sic) or the Orkney Islands, for example, have reached a great deal of publicity."

102                       Coventry should perhaps read Cleveland as this earlier passage from a prior Ruling (Ruling 2, page 6) suggests

"In support of these submissions counsel filed an affidavit by Dr Le Page, an eminent Australian psychiatrist with specialist qualifications in child sexual matters. There are a number of annexures to his affidavit which contains articles about child sexual abuse interviewing techniques and the well known inquiry in Cleveland as well as American and Australian examples of such complaints by children attending pre-school institutions."

103                       The various passages that have been cited reinforce the fact that from the outset there was a consistent focus on contamination as a concern

(4)      Should the Jury have Known More?

104                       The question can be asked whether it might have made a difference if the jury had been told about the alleged mass allegation phenomenon. Even though all the issues were in some way canvassed, might it have been significant if an overarching context of "mass allegations" had been given to the jury, and the jury had realised that there had been these other cases that exhibited similar features. The response to this proposition has many aspects. First, it can be asked what would it be permissible to put before the jury.

104.1                              It is a surpising proposition to suggest that one could tell a jury for example that in America there was a case called Kelly Michael where children were alleged to have been abused and where the appellate Court decided that the interview process was too flawed to allow the trial to take place.

104.2                              Similarly, even if the specific cases were instead generalised out to "characteristics of mass allegations" (eg the trigger event, growing anxiety etc), in the absence of proper reserch what is the legitimate relevance? It is not known for example whether the children in the Kelly Michael case were actually abused or not - all we know is that the interview process was so seriously flawed the credibility of the claims cannot be tested.

104.3                              In the absence of any research that can legitimately ascribe different standards of tests to mass allegations cases, one is limited to exploring with witnesses the risks that arise in a particular mass allegation case. Parents can be asked about their contact with other parents, and their children. Both the parents and the children can be asked about the child's exposure to publicity and to other complainants, the interviews can be scrutinised for examples of the risks eventuating. As has been highlighted in two appeals this was extensively done in the Ellis case. The parents were questioned by the interviews prior to interview and these notes made available to the defence. All involved were extensively cross-examined either at depositions or trial.

105                       Second, although the label may not have been employed, the information was in fact before the jury as much as the defence wanted it to be. To the extent that the present Inquiry is a "then and now" exercise, it is necessary to focus on what was known and available then.

105.1                              Dr Le Page testified for the defence. In an earlier affidavit he had annexed reports or articles on Cleveland, as well as American and Australian pre-school abuse cases (Williamson J, Ruling 2, page 6). He could therefore have been asked about these to the extent permissible;

105.2                              Any consideration of the depositions shows a clear and heavy emphasis on examining the parents about their contacts with other parents, and their children again it could and was repeated at trial to the extent the defence wanted;

105.3                              What was said and done at the two public meetings was carefully explored;

105.4                              Annexure 3 to the Crown submissions at the Court of Appeal was a summary of contamination evidence in relation to each child (Materials, volume 1, tab 13)

105.5                              Included in that summary is material that identifies the various "contamination risks" in the sense of parent to parent contact, and information sharing. The Crown's position on this, however, remains that a risk is not to be equated with contamination. The fact that a parent knows information does not matter if that information is not in fact communicated to the child. Part of Mr Ellis' case at appeal was that the parents, probably understated what they told their children, and one article/piece of research was cited in support of the proposition that this is what happens. However, that cannot be a basis on which the criminal justice system operates. There would need to be a significantly compelling body of evidence and research required before it can be said that a child's complaint should be excluded because we do not believe the parent when they tell us what they told their children. Pre-trial Justice Williamson said that:


"This exchange on information clearly occurred. The extent and significance of it, however, does not appear to me to support the sinister picture drawn by counsel." (Ruling 2, page 13).

106                       It is submitted this assessment remains as valid today as it was then. Even accepting that the research establishes the existence of risks, it must surely remain the case that there needs to be a case specific inquiry into what actually happened and the research and risks assessed against that factual reality. Here, the issues were known and addressed pre-trial, the factual basis was placed before the jury and no doubt was emphasised by counsel in summing up. The mass allegation risks were known; they are the same today as they were then, the facts which would support a "mass allegation hysteria claim" were before the jury. They made the final assessment. There is nothing today which says the Inquiry should have a doubt about that assessment.


IV.       Interviewing

107    This part first considers the three remaining reports identified in the Schedule to the Terms of Reference and also discusses some important new research associated with the Memorandum of Good Practice. The second section then considers some of the general issues that have surrounded the Ellis interviews. It is our understanding that the Inquiry does not have as one of its tasks a further examination of the interviews in themselves; rather it is to consider the interviews in light of new understandings about interviewing children in a mass allegation context. It will be no surprise by now that the Crown position is that there is no such new understanding. However, so as not to totally dismiss the issues, the second section reviews some of these general issues that have been previously canvassed at the appeals. The submissions seek to strike a balance between being self contained on the one hand, and not unduly repeating all the Crown submissions on the topic from the appeal hearing. Those submissions are available for the Inquiry.

A       The Schedule Reports

(1)      New Zealand Law Commission Paper on the Reliability of Witness Testimony

108                       The paper is a discussion document which is aimed to be "an educational one" (paragraph 3) Of some interest is the conclusion of paragraph 3:

"In fact a central theme of this paper is that, because of the complexity of memory processes, each case and the reliability of a person's recall must be assessed on an individual basis."

109                       Of particular relevance is presumably Chapter 4 on children's memories, which summarises some of the research into children's memories, and suggestibilities


110                       The Paper is essentially informational and covers well known literature in the area of children's memories. No section of it seems to be focussed specifically on mass allegations. However to highlight some of the common themes:

110.1                              Children's ability to recall and communicate develops with age. However even quite young pre-school children form memories which are reliable and quite organised compared to adults (106-109);

110.2                              Young children spontaneously recall less information than older children, and give less detail; children may therefore need more assistance than adults to recall (110-112);

110.3                              It is possible to reliably enhance accounts with more and more specific cues but care must be taken with the method of such cuing (113);

110.4                              The use of anatomical dolls is controversial (118).

110.5                              Children have different narrative skills from adults and adults may differently interpret the meaning. Different information should not therefore necessarily be seens to represent unreliability (120-121);

110.6                              Delay has a greater impact on children than adults (123-124);

110.7                              The ability to resist the influence of external suggestion increases with age. Various factors which can influence this are discussed (124-128);

110.8                              Some data indicates that children may also make errors of commission, but such errors are generally minor (129-130)

Comparison to Ellis

111                       The various observations in the Paper represent a fair summary of the literature at a very general level. Focussed as they are on the memory development research, they do not advance particularly the specific issues raised in the Inquiry. More detail on memory development in children was addressed in the various affidavits filed on appeal, and also in the Crown submissions. These will not be repeated here but an important point needs making:

111.1                              It is crucial in considering the research to identify the age of the "Ellis children". The literature generally identifies a significant distinction between pre-school and school age children. Exactly what is covered by the tren "pre-school" is often unclear. Some talk of three and four year olds, others of ages three to five and of course in some North American contexts pre-school is less than six. Whatever, the reality is that at the time of interview the conviction complainants in Ellis generally fall outside this group. At paragraph 61 2 of the Crown submissions the ages of the Ellis children are identified - at the time of first interview the ages were five years six months (X2), 6 2 (x2), 6 6, 7 8, 8 11. Of course under New Zealand conditions, none of the children were pre-school at the time of interview.

111.2                              A criticism that Dr Dalenburg made of the affidavits filed on behalf of Mr Ellis was that they at times used research more applicable to a younger age group. In the Crown's opinion, the validity of this criticism was irrefutably established by the late affidavit filed from Professor Bruck (filed for the first time at the hearing). Professor Bruck had as information sources only the appeal affidavits, her whole affidavit clearly proceeds on an understanding that the applicable research is that of the younger age group, even though the Ellis children were in fact generally outside that group. The point was most starkly illustrated by paragraph 40 of her affidavit where important research of Karen Saywitz is dismissed by her as irrelevant. She observed:

"(eg the children in the Saywitz study were older 5-7 years - and only girls, whereas the ages of the children in many of the others [ie studies] were younger, as they wree in the Ellis case)"

112                       Of course the Saywitz age group is almost exactly that of the Ellis children. (The particular study does not matter because it was not suggested in the end that anatomical dolls were a feature of the Ellis interviews). It is accepted in the research literature that pre-school/school is an importanat division in terms of children's memory and susceptibility. The Ellis complainants were school attendees when interviewed, and of course older still at trial.

(2) Memorandum of Good Practice

113                       The Memorandum sets out the various phases of an interview. As will be discussed below the structure set out is more or less the same as provided for in the New Zealand Guidelines

Phase One - Building Rapport

113.1                              The main aim of this phase is to build up a rapport between the interviewer and the child. It should also supplement the interviewer's knowledge about the child's social, emotional and cognitive development

Phase Two - Free Narrative Account

113.2                              This phase is to allow the child to provide in his/her own words an account of the relevant events

113.3                              In this phase the interviewer is instructed to use appropriate open-ended prompts and should not include information known to the interviewer concerning events which have not yet been mentioned by the child.

Phase Three - Questioning

113.4                              The first stage involves open-ended questions which ask the child to provide more information. The child should know that the reply "I can't remember" is acceptable.

113.5                              The second stage allows for extension and clarification of previously provided information from both the free narrative and subsequent phase.

113.6                              If inconsistencies have occurred these should be gently probed at this stage of the questioning.

113.7                              If specific but non-leading questions are unproductive closed questions might be asked.

113.8                              At the end of this stage the interviewer may conclude that further questioning is necessary and leading questions may be necessary. The guidelines stress that it must be understood that a leading style of questions may produce repliues that are excluded from criminal proceedings (as for example with Count 7 in pre-trial Ruling 4)

113.9                              The guidelines also stress that great care must be taken if leading questions are used and if new information arises out of a leading question the interviewer should revert to the "neutral mode" of questioning.

Phase Four - Closing Interview

114                       The Memorandum was promulgated in 1992 "to help those making a video recording of an interview with a child witness where it is intended that the result should be acceptable in criminal proceedings"

115                       There has recently been published a paper by the Home Office entitled "Interviewing Child Witnesses under the Memorandum of Good Practice. A Research Review" (1999). It provided a valuable summary of lessons learned from effectively 5-6 years of applying the basic document. (Tab 14)

116                       The research addresses each phase of the Memorandum, notes criticisms and positive features, and makes recommendations. Little would be gained by an over extensive repetition of those conclusions. However, some matters worth particular highlighting include

116.1                              Chapter 2 provides an overview of research growth since the Memorandum. It summarises the consensus among researchers on free recall as being

116.1.1                                     The quantity of children's free recall increases with age,

116.1.2                                     Free recall is generally very accurate,

116.1.3                                     The accuracy of reports do not vary with age,

116.1.4                                     The omission of details is much more common than the invention of false ones.

117                       On prompted recall the equivalent principles are

117.1                              Under suggestibility it is noted that it is young children below the age of six who are particularly prone to incorrect responding under certain circumstances (page 9),

117.2                              In the context of multiple interviews which were a feature of some of the children in the Ellis case, at page 14 there is a helpful list of factors that have emerged. These factors emphasise that all children are different and disclosure patterns will vary.

117.3                              Some consideration of new techniques is undertaken, including reference to the "semi-scripted" technique advocated by Dr Lamb and referred to in his affidavit on the appeal. It is noted that it is promising but may need to counter criticisms of inflexibility and insufficient initiative for the interview (pages 26-27)

Application to the Ellis Case

118                       The recent Memorandum research is a particularly balanced summary of developments in the central areas at issue in Ellis. On the question of the interviews generally, the clear impression to be obtained is one of on-going development and understanding but nothing that suggests dramatic insights. One would not expect things to be the same today as 10 years ago, but nor would one expect significant differences. It is a process of gradual evolution which does not suggest things today would be done significantly differently from the Ellis interviews.

119                       Second, the research, as with the Memorandum, is silent on the mass allegation issue. In terms of the Inquiry's focus, this along with the other Reports, it does not reveal the existence of a specific mass allegation blueprint.

120                       A final observation is that one needs to place all these Guidelines into context. They represent recommendations for an interview which is designed to maximise the safety and admissibility of the interview. They are not absolute in that they do not say, for example, to never ask a leading question. In a Court case the issues become one of assessing whether there have been departures, and whether any departures require excision or more unusually full rejection of the evidence.

(3) Joint CYFPA/Police Guidelines

121                       The scope of the guidelines is clear from the face of the document. Unlike the Memorandum of Good Practice, the New Zealand Guidelines address both diagnostic and evidential interviewing. (The Terms of Reference refere to 1997 Guidelines but the Crown's understanding is that the last version is June 1996)

122                       Picking up on some of the themes emerging from the other Reports listed in the Schedule, the Guidelines have some immediately positive features: they represent a comprehensive set of principles and guidelines for the whole process, they reveal the clear understanding that has always existed concerning the role and purposes of different types of interview; they represent a continued co-operative approach between Police and Child Support Services

Interviewing Principles

123                       The following principles emerge

123.1                              Approach the interview with an open mind - the child or young person may have nothing to tell or they may not be ready to talk about what has happened to them.

123.2                              Provide sufficient structure and direction to help the child or young person to co-operate and feel unthreatened.

123.3                              Conduct the interview in a confident, straightforward and respectful way to minimise the child or young person's anxiety.

123.4                              Communicate in vocabulary and sentence structure that is appropriate to the child or young person's age, developmental level and cultural background.

123.5                              Encourage the child or young person to give as much information as possible in their own words and follow the pace and direction of their narrative,

123.6                              Ask open-ended, non-leading questions wherever possible [see Appendix 2 of Report for examples]

123.7                              Set a clear context for the questions asked and respond to what the child or young person says to avoid confusing them - avoid out of context questioning.

123.8                              Help them to put a structure to their account, such as a beginning, middle and end to the incident

123.9                              Check and clarify their responses to avoid assumptions and ambiguity.

123.10                            Be attentive to the child or young person's reasons for distracting, non compliant or regressive behaviours and assess how to respond appropriately.

123.11                            Be aware of your own body langiage, voice tone, gestures, verbal responses and their potential messages to the child or young person.

123.12                            Keep the interview to a reasonable length (45-60 minutes) unless there are good reasons to continue longer (eg the child or young person is in the middle of a disclosure)

124                       Be aware that the child or young person may

124.1                              Feel guilty

124.2                              Be ready to blame others

124.3                              Feel that they are in trouble

124.4                              Be sexually reactive

124.5                              Fear the interviewer's reaction.

Types of Questions

125                       The following table explains and gives examples of the main types of questions

Question Type



Open Question

Allows an answer.

Usually follows a closed question.

Key words are  what, where, when and how

Do not use "why" as may imply to the child or young person they are in trouble. Use "how come" instead.

What happened then?

Tell me about that.

How did that feel on your body?

How come you went to the doctor?

Closed Question

A closed question elicits a yes or no answer

Does not allow for any elaboration.

Was there anything that was said?

Do you have a secret?

Do you like him?

Leading question

A closed question that allows for a yes or no answer and may also suggest the answer.

Did it happen at your house?

Was your mother there?

Did he/she say not to tell any one?

Direct question

Allows some focus to the question and gives the opportunity to expand further.

Where were you in the house?

What were you wearing?

Multiple choice

Provides choices

Give more than one choice if possible

A multiple choice question usually follows a direct question.

Were you in the bedroom or lounge or kitchen or bathroom?

Number and Duration of Interviews

126                                 The interviewer should only conduct one evidential interview. Special circumstances may require more than one interview. If more than one interview is required, they should be kept to a minimum.

127                                 An evidential or diagnostic interview should last no longer than 90 minutes, unless special circumstances exist.


128                                 Most interviews take 30-60 minutes. An interview may take longer or another interview may be needed in special circumstances where, for instance

128.1                                       The child or young person

128.1.1                                              Becomes tired or distressed and is unable to complete the interview

128.1.2                                              Discloses late in the interview and is willing to undertake a further interview

128.1.3                                              Spontaneously reveals further information outside the interview

128.1.4                                              Has special needs, eg an interpreter or technical aid to communicate,

128.1.5                                              Gives new information indicating a more serious offence, or

128.2                                       Equipment fails, or

128.3                                       Other considerations arise following consultation with the investigating team

129                                 The interviewer may conduct up to three diagnostic interviews

130                                 It may be appropriate to conduct a second evidential interview where serious information comes to notice, ie a more serious offence or risk issues. If this occurs consult your supervisor. Be aware that a Court may order a second interview.

Structure of the Interview (Evidential)



1.         Introduction assessment

Establishing time, date, place and person's present

Building rapport

Establishing the child or young person's conceptual understanding

Establishing the child or young person's understanding of truth, lies and promises

2.         Middle content

Enabling the child or young person to share as much information as possible

Gathering facts

The ingredients or details of the offence

3.         Closure Clarification

Clarifying aspects of the information

Ending interview


131                       The number of interviews with some children has at times been raised as an issue. As the guidelines make clear, there needs to be first drawn a distinction between diagnostic and evidential interviews. Most guidelines recognise that multiple diagnostic interviews may occur and the New Zealand Guidelines refer to a possibility of 3. With the Ellis complainants who became the subject of conviction verdicts, diagnostic interviews were not a significant feature. It is clear that with some complainants, there were more evidential interviews than is generally seen as desirable. It is important, however, to emphasis the reasons for such interviews, they were a product of fresh disclosures and therefore sourced in the child. This can be contrasted with, for example, Orkney where the impetus often came from the interviewer or relevant social authority. Most research counsels against revisiting previous disclosures, this is not what happened with the Ellis interviews where, as noted, the impetus was fresh disclosure by the child.

132                       Other than the introductory comments there is little to add. It is submitted that the Guidelines represent a comprehensive approach to the task and reveal organisations that are committed to doing the task in a way that is acceptable for the Court process and attentive to the child's needs. They are detailed and thorough and represent a continuation of the professionalism that it is plain has characterised the New Zealand approach to this topic.

B       The Ellis Case Interviews

132              Throughout the course of the Ellis proceedings the interviews have been extensively scrutinised. It does not appear that the Terms of Reference are asking the Inquiry to simply repeat this exercise a further time. Rather the issue is

132.1                    Having scrutinised the reports and memoranda listed in the Schedule, identify the processes, practices and procedures currently accepted internationally as best practice for interviewing children in these cases (ie mass allegation)


132.2                    Assess whether the interviews of children were conducted in accordance with best practice as now understood

132.3                    If the Inquiry concludes the interviews were not conducted in accordance with best practice, identify the nature and extent of any risks which arise, which might affect the assessment of the reliability of the children's evidence.

133              The governing provision is the identification of currently accepted best practice rules for interviewing children in mass allegation cases

134              The difficulty for the Inquiry is that no such best practice exists. As submitted on several occasions already, there has been no consideration of mass allegation interviews as a separate phenomenon. To a large extent that is determinative of the Inquiry's task. But in order to provide as much assistance as possible these submissions revisit some of the issues covered in the last appeal concerning interviewing technique generally. The structure is:

134.1                    Specific consideration of two overseas mass allegation interview situations and accompanying research

134.2                    Discussion of Dr Lamb's analysis of the Ellis interviews;

134.3                    Discussion of some of the other criticisms of the Ellis interviews and consideration of recent writings.

(1) Two Overseas Mass Allegation Interview and Research

(a)    State v Michaels (1994) 842 A 2d 1372 (New Jersey) (Tab 15)

135                                 This case is one of the most frequently cited in the area. In it the New Jersey Supreme Court established a "taint hearing" procedure whereby the prosecution would have to establish pre-trial the reliability of children's pre-trial statements. Michaels was charged with numerous offences against children at the "We Care Day Nursery". She was convicted at trial but these convictions were overturned on appeal. On further appeal the Supreme Court established the taint hearing procedure .

136                                 The report of the case is helpful because it includes extracts from the interviews. A perusal of these extracts suggests, it is submitted, that again the case bears much more similarities to the Seabeach Kindergarten case from the New South Wales Report than it does to what happened in the Ellis case. From page 1379 ff the Court identifies the following concerns:

136.1                                       Few, if any, of the children volunteered information that directly implicated Michaels

136.2                                       None of the children related incidents of actual sexual abuse under the free recall stage;

136.3                                       Few of the children were able to provide detail in support

136.4                                       The investigators were not trained

136.5                                       The earliest interviews were not recorded; in some cases the original notes were destroyed;

136.6                                       Many of the interviewers demonstrated ineptness in dealing with the challenges presented by pre-schoolers,

136.7                                       Many of the interviewers displayed their frustration with the children;

136.8                                       Almost all of the interrogations revealed an obvious lack of impartiality

136.9                                       The interviewers failed to pursue any alternative hypothesis

136.10                                      the interviewers failed to challenge or probe seemingly outlandish statements;

136.11                                      29 of the 34 children were asked questions strongly suggesting that perverse sexual acts had in fact occurred;

136.12                                      The record of the interviews discloses the use of mild threats, cajoling and bribing;

136.13                                      Throughout the interviews there was a clear element of vilification of the accused;

136.14                                      No effort was made to avoid outside information that could influence and affect the recollection of the children.

137                                 As a package this case is simply nothing like the professional job done in the Ellis case. It must be repeated that just because there have been serious flaws in other inquiries, one should not have doubts about the Ellis case.

(b)    McMartin Pre-School

138                                 As noted elsewhere, Garven et al conducted an analysis of the interviews that took place in the McMartin Pre-School Case (Tab 4). In that case seven teachers had been accused of mass abuse of several hundred children. No-one was ever convicted and most charges were dropped without trial.

139                                 Garven et al identified various technique errors from the interviews and combined them into one exercise to assess what impact "the package" might have. There does not seem to be a suggestion that any actual complainant was so exposed. The research identifies mistakes from the interviews this way. The examples are actual examples from the interviews.

"(a)     Suggestive questions

Q       Who played that game?

A       Ray and Miss Peggy

Q       Did Miss Peggy take her clothes off?

A       Yeah

Q       Did she have big boobs?

A       Yeah

Q       Did they swing around?

A       Yeah"

Prior to this exchange no mention of nudity had arisen.

 (b)     Other people.  This involves telling the children that others have already provided information about the subject of the interview. It carries an obvious risk of creating pressure to conform, eg

"We know about the game. 20 kids have told us about that game   do you think if I ask you, you might remember"

(c)      Positive and Negative Consequences.
This raises the obvious concern that the interviewer should not create a praise/punish environment which causes the child to give answers they think are wanted, eg

You are going to help all these little children because you're so smart
Are you going to be stupid or are you going to be smart and help us here

(d)      Asked and answered.  Not accepting an answer.

Q       Can you remember the naked pictures?

A       (Shakes head "no")

Q       Can't remember that part?

A       (Shakes head)

Q       why don't you think about that for a while okay? Your memory might come back to you


(e)      Inviting speculation (self-explanatory).

140                                 Having identified these errors the research constructs a short role play followed by an interview which employs these techniques in relation to some true and false statements. Quite a high error rate was achieved.

141                                 The point to be made in response is that it is not a piece of mass allegation research that offers much assistance. Some might find it helpful in the messages it suggests concerning children's suggestibility, but it is not an exercise one will find repeated in any one of the Ellis interviews. Probably across whole range of interviews less extreme examples of each problem may be found. But, as one would expect with the calibre and training of the Ellis interviewers, no-one has suggested this type of package can be found in a single interview or even as regards a particular complainant.

(2) Dr Lamb's Research

142                       This research is cited at this point because it assists to establish a basic starting point: the Ellis interviews were overall good interviews. In assessing how there have been improvements in understanding throughout the 90's, it is important to recognise that in the case of Ellis the new understandings must be applied to essentially sound interviews.

143                       Dr Lamb compared the Ellis interviews to similar interviews conducted throughout the world at that time. The chart below summarises the percentage of information obtained by various types of questions. In terms of all the Guidelines, it is his "suggestive" questions that represent the most concerning style (called "leading" elsewhere)

Chart N  Analysis of Source of Information Obtained in Interviews (Expressed as Percentages)



















































144                       Some caveats and explanations are necessary

144.1                              The two right hand columns are modern interview technique results using the Lamb "semi-scripted" model (as discussed in the Memorandum of Good Practice Research already noted (Tab 14, page 26-27)). The four left hand columns are interviews conducted at the same time as Ellis. "New Zealand" refers to the Ellis interviews.

144.2                              Dr Lamb defines "leading" in his own way, and notes that Courts would not necessarily call these questions leading. What he terms "suggestive" questions is what Courts would call leading  "utterances that strongly communicate what response is expected, or assumes details that have not been revealed by the child" (paragraph 51);

144.3                              Exactly which Ellis interviews are analysed by Dr Lamb is not clear. From paragraph 5.1 of his affifdavit it would seem to be all the interviews, whether shown to the jury or not, of the six complainants under appeal, plus

145                       Looking then at the chart and focussing on the key issue of the information obtained by the interviewers from suggestive questioning, some telling figures emerge

145.1                              Compared to their contemporaries, the Ellis interviews extracted only 7% of the information this way. That is, across all these interviews and combining both core allegations and detail, and covering the conduct that is the subject of charges, and all the other so called bizarre or fantastical allegations, only 7% of this information was obtained from the worse type of questioning.

145.2                              At the same time, the contemporaries of the Ellis interviewers obtained 9%, 11% and 19% respectively from such questions.

145.3                              Looking at the two right hand columns which are the modern Lamb script interviews, one group do marginally better at 5% and another group did worse than anyone at 22%

146                       It is suggested that this information is crucial to any assessment of the reliability of the children's evidence. If the proposition advanced is that we can now say with imp[roved research how bad the Ellis interviewers did, the reality is that they did not do badly at all. If the quality of the interviewing is said to be a major reason for granting a pardon, this chart would seem to give lie to that proposition.

147                       There are many other observations possible from the two charts; for example the New Zealand style seems to be to use facilitators (recorded in interviews as "uh-uh", "mm" and "go on" etc) rather than full open questions. However, when one looks at it, the conclusions are the same.

147.1                              As a style of interviewing (Chart M), the Ellis interviewers were comparable to their contemporaries but not quite as good as the 1999 scripted interviews

147.2                              As a source of information (Chart N above), the Ellis interviews were better than their contemporaries in terms of least information obtained from suggestive questioning, and pretty much as good as the 1999 scripted interviews. Even combining leading and suggestive together, the Ellis interviews are not noticeably worse or better than their contemporaries.

148                       Concerning Dr Lamb's new interview technique, it should be noted it is discussed in the Memorandum of Good Practice Research at page 26. It is noted that it is promising but that some significant caveats exist (This again highlights the point that the research is developmental and on-going; it is not in a position where one can say there is a settled view)

(3) Interviewing Generally

149                       There has been considerable research conducted in the 1990's. It has served to confirm that there are risks involved in interviewing children, and that certain techniques increase or minimise those risks. The research has informed the development of guidelines as those found today in New Zealand.

150                       However, it is difficult to see that the identified risks are any different in nature from those known at the time of the Ellis case. A stark illustration of this is provided by the cross-examination of Sue Sidey at depositions (page 26/33) where 12 propositions, seemingly taken from the Cleveland Report, are put to her for response. As noted earlier Dr Le Page and Dr Zelas were also available to be questioned on these aspects.

151                       The inquiry is respectfully referred to the Crown's submissions on the appeal where individual topics are addressed. What follows is a highlighting of some of these points, reinforced by references to new research and writings.

152.                      It is wrong to believe that research has suddenly reached a point where there is universal agreement. Quantifying the risks is still very much an area of dispute; where the trade-off can be drawn between obtaining no information and obtaining information with a risk of some inaccuracy is still in dispute; what the effects are of testing children to see if they adhere to the initial falsity is in dispute. There are many other areas. It is a false picture to suggest that a united body of opinion would now look at the Ellis interviews with similar eyes.

153                       Two pieces of very different writing make this point and are included in the materials. The first is a 1999 Cornell Law Review article by Thomas Lyon, who was one of the Crown's nominated experts. (Tab 16). In it he critiques what he calls the "new way" of suggestibility research. His three primary criticisms reflect the tenor of what the Crown submitted at the appeal.
Concerning Dr Lamb's new interview technique, it should be noted it is discussed in the Memorandum of Good Practice Research at page 26. It is noted that it is promising but that some significant caveats exist (This again highlights the point that the research is developmental and on-going; it is not in a position where one can say there is a settled view)

153.1.1                           The new wave researches assume that highly suggestive interviewing techniques are the norm in an abuse investigation when there is little empirical evidence to support this view;

153.1.2                           The research neglects the characteristics of child sexual abuse that make both false allegations less likely and which increase the need to guard against a failure to detect abuse when it has occurred.

153.1.3                           The researchers apparently value-free scientific treatment of suggestibility issues obscures value judgments that must be made over the trade-off between false allegations and false denials.

154                       Aspects of this article reflect what Dr Dalenberg claimed: that there is a tendency in critics to exaggerate the bad aspects and the mistakes children make without ever acknowledging that there are aspects of the research that make it likely the children are reliable. Two examples:

154.1                              The bulk of the research shows that errors of omission are much more likely than commission. In a case such as Ellis this is very significant, it means that mistakes are usually more often made in relation to detail than core allegations, and especially in school age children it is much harder to establish false memories of the whole event;

154.2                              An issue that exists is whether children will adhere to false stories when challenged. This has obvious significance for the trial process where a child is cross-examined. Garven et al (Tab 4) in a recent piece of research began to explore this (Tab 17). They implanted false memories by three different techniques - simple, reinforcement (repeated suggestion) and co-witness (tell the child someone else saw it as well). They then challenged the false memory. Although they highlight that in the reinforcement group, over 30% still adhered to their story in the face of quite mild challenge, it is of considerable significance that in the simple group only 3.5% adhered to their false memory. If mild challenge effected this outcome what effect then might more extensive cross-examination have?

155                       A further major reservation the Crown has always had concerns any attempt to directly apply the research to a specific case, and to then suggest it mandates a particular outcome. The problems with doing this are:

155.1                              The research childrenare not traumatised and the events they are being questioned on are usually quite trivial. For obvious ethical reasons there is very little research that seeks to see if false memories of truly traumatic events can be created; nor if initially created to what extent would they be sustained. There is no general acceptance that this non-trauma research is directly applicable to traumatised children and trauma memories;

155.2                              There is so much of the context of a trial that is not replicated in the research interviews (eg parent's testimony, opportunity, medical evidence, accused's testimony, demeanour, previous conduct of child);

155.3                              The research cannot replicate a jury's task, or prior to that, the Judge's. Someone must look at the interview, consider the questions and answers, and form an assessment on that child's reliability and suggestibility. It is impossible to get away from the reality that not all children are the same and each will read differently.

157                       The second piece of research (the first is Lyon, para 154) is that produced for the Home Office, and previously referred to (Davis et al, Tab 14). It is submitted that any fair reading of it must lead to a conclusion that the growth in understanding represents refinements on already known issues.

158                       One final point on this research generally. It is important research when used properly such as in the development of Guidelines. However, it is not a "hard science" in any real sense of that concept. The subject of the research varies as much as each person as an individual varies from another. We simply cannot say that because a technique had a particular effect on one child, it will have had the same effect on another. In terms of revisiting past trials, it is quite different from, for example, DNA where a shift in science and technique can allow us to positively exclude a previously inculpated person.

(4) Conclusion on Interviews

159                       The Ellis interviews were a good illustration of interviewing. Nothing exists today which merits re-assessment. There is no research that mass allegations require a different technique. No new risks have emerged, and the previously known risks cannot be differently or better quantified. Continuing research gives improved understanding, but it is not the type of research that supports a re-evaluation of interviews previously thought sound.


V.        Conclusion

159    The introductory paragraph of the Terms of Reference require the Inquiry to report:

"On whether there are any such matters which give rise to doubts about the assessment of the children's evidence to an extent which would render the convictions of Peter Hugh McGregor Ellis unsafe and warrant the grant of a pardon"

159    The effects of a pardon were discussed in the context of the Court proceedings which followed the Thomas Royal Commission [1980] 1 NZLR 602, 616-621 and [1982] 1 NZLR 252, 273-276. The preceding submissions advance the proposition that there is nothing in the current state of understanding about "mass allegations" that should cause the Inquiry to recommend a pardon. Unless the view be taken that no mass allegation conviction is ever safe, it is submitted there is no basis in the conduct of the investigation, in the Court process or in subsequent research for doubts to arise about Mr Ellis' convictions. Any comparison with overseas cases only serves to highlight that the Ellis case was well managed from the outset, and that at all stages the concerns which can accompany mass allegation cases were known and explored. As always a balance is required on the one hand, it is important to recognise that the existence of several or many complainants will exacerbate the dangers presented by known risks, on the other it is important not to attach to the label "mass allegation" a life of its own. A mass allegation case remains in its fundamentals a criminal prosecution to which the normal rules and processes should apply. It is submitted that the Ellis case established the appropriate balance better than any model placed before the Inquiry, and at a level which raises no doubts about the safety of the convictions.

DATED at Wellington this 24th day of July 2000

Simon France

Crown Counsel