KEY POINTS:
A Ministerial inquiry into the Peter Ellis Christchurch creche case that concluded the verdicts were safe relied on the expert opinion of a little-known Canadian child psychologist who has been involved in controversial cases.
Dr Louise Sas was one of two experts used in the Eichelbaum inquiry into
Ellis' case. She was not among those nominated by any of the parties to the case and the Ministry of Justice has been unable to explain how her name arose.
Most of her work has been for prosecutorial bodies and directed at improving the criminal justice system's response to child victims. She has not published any peer-reviewed scientific articles about child memory, suggestibility and contamination - issues central to the Ellis case.
Of the many psychologists who have examined the interviews of the creche children since the trial, Sas is the only one to have stated the children's evidence is reliable. Sas' appointment is among aspects of the case explored in articles published recently in the New Zealand Law Journal.
At the time Sas was assessing the Ellis children's interviews for the Eichelbaum inquiry, a Canadian case in which she provided expert evidence for the prosecution collapsed when the key witness declared he had been lying.
Sas interpreted the boy's retraction as in keeping with abuse - "a clear example of his difficulty sharing information".
The defence lawyer in the case, Cindy Wasser, chairwoman of the criminal justice section of the Ontario Bar Association, told Canada's Globe and Mail, that "Dr Sas can interpret every fact and every behaviour as evidence of abuse".
The case involved a Filipina nanny, Vilma Climaco, who worked for a middle-class couple looking after their 4-year-old twin boys. She had a 2-year-old son of her own, the result of an affair with a married man with whom she was going through a bitter break-up.
The nanny's former partner alleged to the twins' parents that Climaco was hitting their children. The parents testified they had been happy with the nanny but decided to take no chances and let her go.
Climaco's ex-partner kept ringing with allegations and the parents began to question the twins about "what bad things the nanny had done" The Globe and Mail reported, and called a social worker who also questioned them. The twins said nothing that would justify further action.
Then months later when praised for eating up their lunch during a restaurant stop on a car trip, one twin said, "Vilma never fed us. She made us lick her pee-pee for food."
The parents stepped up their questioning and three weeks later called police who interviewed each twin twice on video tape.
One said he was made to suck a suitcase; the other didn't say anything suspicious.
Climaco was arrested and charged with sexual assault and sexual touching. Her son was released into the custody of the father. The twins were sent for counselling at the local child abuse centre.
In a report for the Crown, Sas said the restaurant incident "can best be described as an unsolicited accidental delayed disclosure, triggered by a conversation which brought to mind the specific incidents of sexual abuse.
"In this case, the discussion of food ... brought on the disclosure of oral sex with the babysitter. According to the evidence, the boys had already been describing sexual acts in the car which they would do to each other.
"This in and of itself is highly irregular, and this type of discussion suggests they had been eroticised and introduced to that type of behaviour."
At some point after the nanny was charged the twins' father told his sons' counsellor of finding a 12-year-old developmentally-delayed neighbourhood boy in the basement with the twins. The twins' pants were down, the older boy was on his hands and knees. Asked what he was doing, the boy said: "I'm kissing their penises. I know it's wrong, but I like it."
Counsellors interviewed the older boy and his family. His mother said she wasn't surprised as her son had interfered with other young children but the boy denied the basement incident. No police interview was done.
The nanny went to trial. One night, part-way through, the twins' father got a call from the father of the 12-year-old. The older boy had told his parents that not only had he seen Climaco abuse the twins, she had abused him as well.
The Crown decided to call the 12-year-old as a witness even though he didn't know the nanny's name and had wrongly described her as having blond hair and blue eyes. The defence successfully sought a retrial because of late notice of a new witness.
By the time of the new trial the boy had been interviewed three times on videotape. His stories were contradictory and in the third interview he said he'd been lying.
Sas reviewed those three interviews for the crown and said the inconsistencies and retractions were "a clear example of his difficulty sharing the information".
Before a jury was elected at the second trial the judge reviewed the evidence and interview tapes, decided they were unreliable, and threw the case out.
The Law Journal report challenges Sas regarding Project Guardian, which she characterised as a multi-victim, multi-offender sex ring case which involved 60 young boys aged between eight and 17 and 80 adult male offenders. Dozens of arrests were made and hundreds of interviews conducted but only two convictions (for videotaping youths aged 14 and older engaged in sex acts) resulted.
"What Sas didn't mention was that many Canadians regarded Project Guardian as an anti-gay witch hunt," wrote Ross Francis, a librarian and researcher, in the Law Journal,
Documents released to Francis under the Official Information Act indicated that Eichelbaum, after speaking with the Ministry of Justice's chief legal counsel of the time, Val Sim, had the view that Sas had "high standing".
The Ministry of Justice says its officials and Eichelbaum both carried out research to come up with possible names but its officials did not remember which list Sas came from and its files "do not indicate where the name Louise Sas came from".
Francis classifies himself as a supporter of Ellis. There is a link to his articles and documents he has obtained under the OIA on the Peter Ellis campaign website.
Francis told the Herald his interest in the case stemmed from reading Lynley Hood's book, A City Possessed (2001). He has been researching what he sees as shortcomings in the Ellis case for a number of years.
Sas has not responded to messages left on her voicemail during the week. Eichelbaum told the Herald it was not his practise to comment publicly. Sim, who worked closely with Eichelbaum on his inquiry, is overseas and could not be contacted.
She had previously advised against having a commission of inquiry into the Ellis case. She is now a member of the Law Commission, a Crown entity which advises on law development and reform.
Francis contends the Eichelbaum inquiry was flawed because of prejudicial advice from officials, its narrow scope (including a decision to overlook Sir Thomas Thorp's report for the Secretary of Justice which expressed doubt about the safety of the convictions) and the selection of Sas in favour of a number of internationally-renowned experts.
In an apparent quest to find neutral experts who hadn't previously expressed an opinion on the case, many experts with strong reputations in the area of child memory and suggestibility were ruled out.
Among them was Cornell University professor Stephen Ceci (one of three experts nominated by Ellis' legal counsel), whose opinion the Thorp Report recommended that the Ministry of Justice seek.
Eichelbaum - who could have appointed up to six experts discarded Ceci due to his "high profile" and "research direction".
Also apparently ruled out were those with a "close publishing association".
The inquiry chose Sas, much of whose work is as a child advocate, and Leicester University psychology professor, Graham Davies.
Whereas Sas stated that the evidence of the children was reliable, Davies was more cautious, noting in his report he would not pronounce on guilt or otherwise, or on the reliability of individual children's accounts.
Eichelbaum noted both experts considered the interviewing was of an appropriate standard, although Davies commented they did not reach the best standard in every respect.
If there was one major weakness it was the "sheer number of interviews ... over an extended period".
"Cross-talk among families against a background of persistent accusation against a suspect" was of concern but, said Davies, "I do not think cross-talk alone is sufficient to explain the similar accusations made against Mr Ellis, particularly in relation to incidents in the creche toilets".
Eichelbaum concluded the convictions were safe and said that while "the occasional miscarriage of justice can occur ... Mr Ellis' case has had the most thorough examination possible. It should now be allowed to rest."
Finality was on Margaret Wilson's mind when - as Associate Minister of Justice and Attorney-General - she urged Cabinet not to have an inquiry at all.
It was important, she said, that victims could move on, and revisiting it risked the Government being seen "to be casting doubt on the [criminal justice] system".
Cabinet had the option of an officials' inquiry, ministerial inquiry (which it chose - Eichelbaum's) or a commission of inquiry.
Debate about the adequacy of the system for dealing with potential miscarriages is unlikely to go away.
Ellis - who served his full 10-year sentence rather than admit to a crime he says he didn't commit in order to get parole - is trying to take his case to the Privy Counsel which recently ordered a retrial for David Bain. The Marlborough Sounds murder case which resulted in the conviction of Scott Watson is also back in the news, with supporters of the accused double killer claiming there were serious flaws in the police investigation.
Thorp told the Herald he expected the David Wayne Tamihere case (he was convicted of the 1989 murders of Swedish tourists Heidi Paakkonen and Urban Hoglin) "to bubble at some stage".
"In general, cases that depend upon circumstantial evidence prove to be a worry if people exclude the unfavourable inferences. It's all very fine finding five things which point one way, but if you exclude five that point the other way you get a strange situation."
Last year an Innocence Project was set up, modelled on those in the United States which have exonerated 200 people since 1992.
Traditionally attached to universities, New Zealand's is linked to the psychology departments of Victoria and Otago Universities. Dr Maryanne Garry (Victoria) and Professor Harlene Hayne (Otago), Americans who came to New Zealand in the 1990s are directors.
Garry, who came to New Zealand from the University of Washington, found New Zealanders inexplicably complacent about the prospect of miscarriages when those things proven to have caused them in the US and in Britain were just as applicable here.
People used to laugh when she raised it, she says. "They pretty much stopped laughing after the Dougherty case." (David Dougherty was freed and compensated in 1997 after DNA proved the semen on the rape victim's underwear was not his).
The most common cause of miscarriages is faulty eyewitness evidence. Garry, a specialist in adult memory distortion, says there is nothing special in New Zealand procedures for dealing with "what we might call memory trace evidence" that better protects against error.
"I'm not sure there is enough recognition that the problem [of miscarriages] exists. To solve a problem you first have to recognise that you have a problem."
Garry found it "curious" the Eichelbaum inquiry ruled out scientists because of their "research direction" when "science by definition is the search for information free from bias".
"So, to describe someone as biased because they happen to have found certain patterns or effects in their objective scientific data, sounds like someone saying 'I don't like what those data' say, as though [the scientists] are making the data say something because that's their personal agenda.
"I find that breathtaking. It's sort of like saying Einstein had a personal axe to grind with gravity."
PSYCHOLOGIST: ELLIS CASE QUESTIONS WERE SUSPECT
When Peter Ellis was tried and convicted in 1993, Harlene Hayne was in her second year on the academic staff of Otago University. These days she is a professor of psychology.
With no independent corroboratory evidence, the case hung on the reliability of the children's evidence.
In question too, has been the adequacy of the questioning of the children.
That's Hayne's field. A specialist in children's memory development, some of her recent work has examined the best (and worst) ways to interview children in simulated clinical and legal contexts.
"Up to this point, I have had no relation to the Ellis case. It was never clear to me how I could contribute anything to the debate," Hayne said. "A large number of experts had been consulted in the case and there was no shortage of expert opinion on the quality of the interviews.
"A few years ago, however, as I was reading the Eichelbaum Report, it occurred to me that it might be possible to actually compare the number and quality of the questions in the Ellis case with the number and quality of the questions in another historical case to which Eichelbaum referred in his report."
That's the infamous Kelly Michaels case. Michaels, aged 23 when arrested in 1985, was a New Jersey daycare worker. She was convicted of 115 counts of child sexual abuse and jailed for 47 years. She was released five years later when the New Jersey Supreme Court ruled that the "interviews of the children were highly improper and utilised coercive and unduly suggestive methods".
Eichelbaum, in his report, accepted the interviews in the Michaels case were badly flawed but said that the Ellis interviews were "of a high quality".
Hayne: "We coded every question that children were asked via transcripts of the interviews for each case."
Long interviews and suggestive questions are generally accepted to be risk areas in eliciting reliable information from young children.
Hayne found that on average each of the Ellis case children were asked 400 questions per interview compared to 200 in the Michaels case.
Each child in the Ellis case was asked on average 20 suggestive questions compared to eight in the Michaels case.
Hayne concluded that there was consequently a "strong risk" the interviews were contaminated. She says the courts should look at this again.
