THE ELLIS CASE
The Minister of Justice appears proud to say that he refuses to read Lynley Hood's book A City Possessed. This is unfortunate as there are numerous lessons to be learned from the saga that are of value today, regardless of the issue of Ellis's guilt. On that issue alone, we are witnessing the kind of establishment obstinacy and public dissatisfaction that led in Britain to the Criminal Cases Review Commission.
The Minister shelters behind the Court of Appeal and the report by Sir
Thomas Eichelbaum, but this is not good enough. One of Lynley Hood's
achievements, as a non-lawyer, is an astute criticism of the
shortcomings of the various methods available to review criminal
convictions. Each of the reviews and appeals suffered from some
limitation, self-imposed or otherwise. A City Possessed is the first
attempt at a review of the whole case from the investigation onwards.
The first issue obviously is whether Ellis should have been convicted.
No one who has read the confusion and contradiction displayed by the
witness statements that Hood recites can be happy that the convictions
are safe. The Court of Appeal confessed to having read only extracts
of the statements, but this is not enough to make one content with
them, whereas relevant extracts are sufficient to show that witnesses
were confused, self-contradictory and unreliable. Either Sir Thomas
did not read those statements because, like everyone else he
restricted himself to the filleted evidence that the Judge allowed in,
or, with respect, his judgment is at fault.
Regardless of that issue, however, there are several systemic matters
which clearly require attention and which, it seems, require attention
today just as much as a decade ago.
Police investigation: the investigation in the Ellis saga suffered
from a clear fault which was that it was driven by a junior officer
with a bee in his bonnet. Senior officers seem almost never to have
exercised independent judgment: they evidently regarded themselves as
the heavy guns to be wheeled out whenever the OiC needed. It is
clearly inappropriate that a multiple victim case involving serious
criminal allegations, important legal and policy questions relating to
evidence and major budgetary issues should have been conducted by an
officer of the rank of Detective. Exactly the same thing seems to have
happened again in the Sotheran Dash-8 crash case where either the
Detective concerned was being used as a front to shelter the real
decision makers, or another hugely expensive and complex investigation
was conducted without any leadership from supervising officers.
Section 23G of the Evidence Act: this section is meaningless nonsense.
This is not hindsight, it was said at the time it was passed. The
section authorises the giving of evidence about whether behaviour is
consistent or inconsistent with sexual abuse. "Inconsistent" means
"logically impossible in combination with" and "consistent" simply
means "not inconsistent". There is no behaviour that is inconsistent
with sexual abuse and so the DSAC manual instructed doctors to report
all behaviour as "consistent with sexual abuse". This is clearly not
understood by most lawyers and police, who, surveys show, think that
"consistent" means "provides supporting evidence for". Sadly, the Law
Commission draft Evidence Code just reiterates this nonsense verbatim.
It should be repealed. The kindest thing that can be said for those
responsible for it is that they cannot have known what they were
Psychological evidence: little psychological evidence stands up to
serious scrutiny. Psychologists have managed to con the system for
years with nonsense such as "offender profiling" which has no
scientific basis whatever. The fact is that psychology completely
lacks a general theory of human behaviour and the divisions between
schools of psychology are as deep as argument about whether the earth
goes round the sun or vice versa. Few psychologists understand the
logical structure of evidence they are giving, as surveys of numerous
cases, listening to them speak on this and other issues at seminars,
and personal experience of trying to train them in evidence-giving
demonstrates. Almost no statements made by psychologists are backed up
by the population data necessary to give the evidence probative value.
The so-called "prosecutor's fallacy" is endemic. Recently a
psychologist on television suggested that many premature births are
due to stress events in pregnancy. To prove this she interviewed
mothers who had given birth prematurely and discovered that some high
proportion of them had suffered stress events in pregnancy. This, she
said, proved her theory. Much psychological evidence in real Court
cases in New Zealand and elsewhere has been as unintelligent as this.
The mystical hold that psychologists seem to have over the legal
system should be broken.
The appeal structure: The position in a criminal appeal appears to be
this. If you are an undoubted criminal caught red-handed but you can
point to some defect in police procedure, the Court of Appeal will
exercise a power it has arrogated to itself and which Parliament never
intended it to have, to rule the evidence inadmissible and set you
free. If on the other hand, you argue that you are innocent and have
only been convicted because of misjudgments by the trial Judge and by
the jury, the Court of Appeal will refuse to exercise the power
Parliament intended it to have to revisit the conduct of the trial and
the evidence available. This is not how to create confidence in the
criminal justice system.
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