OPINION
Science will set you free, maybe, eventually, posthumously. The Supreme Court's recent decision to quash the conviction of Peter Ellis is likely the final word on that strange and essentially unresolved case – Ellis died in 2019, which makes it kind of difficult to put him on trial again and test whether the charges were valid or, you know, total bulls***. Part of the successful appeal relied on a new understanding about children's memory and interview techniques. "The Crown argued evidence based on new scientific knowledge should not be admitted," wrote the Supreme Court judges. "We do not accept that submission … We do not see how we could ignore evidence before us that calls into question the accuracy and reliability of expert evidence before the jury." Fair call; and the issue inspired a little footnote in the Supreme Court ruling, in small print, which refers to a name of a convicted felon who is probably even better known than Ellis, and just as much the subject of legal and public argument: Mark Lundy.
Science thinks of itself as fact but so often goes about its business as total fiction. "Much has changed in the science that underpinned the conduct of interviews of the complainants," remarks the Supreme Court. So what was true then is now not entirely true, which is to say, false. The Supreme Court asks itself, "How does the miscarriage of justice ground of appeal apply when the appeal is advanced on the basis of fresh evidence of changes in science?" It answers itself, "The court has the flexibility to identify and intervene to prevent a miscarriage of justice." But it has remained resolutely inflexible and stiff as a board, despite many years of allegations that the science against him was entirely fictional, in regard to Lundy.
Science is sometimes something like someone trying on a pair of pants in the changing room. It just isn't sure if it suits them or whether or not to buy it or if their bum looks big in it. But it's never short of an opinion on the matter, and can muster a range of expert opinions, very expert indeed. Ellis' lawyers called on Professor Mark Howe, research chair in cognitive science, and director of the Centre for Memory and Law at City University of London. ("As is apparent, he is an expert in memory," the Supreme Court rather needlessly sees fit to add.) Another witness included Dr Suzanne Blackwell, a clinical psychologist and honorary research fellow in the Psychology Department, Faculty of Science at the University of Auckland. So many sciences, all concerned with that slippery, vague, dark, opaque, weird, unknowable realm of memory, which is forever trying on different pairs of pants in the changing rooms of psychological investigation. The brain, too, is at stake in the matter of Lundy.
Science is trial and error, mainly error. One expert witness told the Supreme Court that "memory science" was barely in its infancy in the early 1990s when Ellis was accused of multiple counts of sexual abuse at the Christchurch Creche. How grimly apposite for an infantile set of knowledge to destroy someone's life based on interviews with infants. Lundy's prosecution was propelled by scientific evidence that the stain on his shirt came from his wife's brain. They based this evidence on the findings of a really very peculiar scientist from Texas, who used a very peculiar scientific method to test the make-up of that tissue. It was backed up by another very peculiar scientist, a woman from The Hague, but the Supreme Court ruled her evidence should have been inadmissible. It was exposed as a nonsense. Oh well, said the Supreme Court, what's done is done, and it rejected Lundy's appeal in 2019. No freedom, ever, for Lundy.
