Warning: This article discusses graphic depictions of sexual assault.
The posthumous appeal of convicted sex offender Peter Ellis is under way in the Supreme Court, focusing on how evidence was collected from the child complainants and whether it was reliable for conviction.
Ellis was convicted of 16 counts of child sex abuse in 1993.
This is his third appeal – the first led to one complainant withdrawing her testimony and three of Ellis' 16 counts of child sex abuse being overturned.
His second was dismissed by the court. He was granted leave for his third in 2019, but died months later after a battle with bladder cancer.
Ellis contended through his life he was innocent and the victim of a miscarriage of justice.
On Monday, his lawyer Rob Harrison told the court the appeal is hinged on a number of factors – firstly the risk of the children's testimony being contaminated.
He says the risk of contamination was underestimated, due to the lack of scientific knowledge about interviewing children in the 90s.
He says improper techniques were used to get information from the young children, and when the case did reach court in 1993 the jury were not "appropriately assisted by expert testimony".
"The jury could not decipher the information in the right way to reach a fair decision."
Harrison also says the children's interviews, upon which Ellis' conviction was hinged, were contaminated by a multitude of factors.
"Parent to parent conversation, child-parent conversations, official meetings, children overhearing conversations, booklet construction, scene reconstruction, therapy books and television."
Harrison says all of these factors could affect the recollection of children, or cause them to change their answers based on what they were overhearing or being told.
Professor Harlene Hayne, an expert on memory development and child interview techniques, told the court children are particularly susceptible to influence if there is a delay between the traumatic event and their questioning.
She says usually in events like this the delay between the event and the interview is short and children are interviewed with open ending questions – but this did not occur in the Ellis case.
"When mothers are misled about an event their children took part in, for which they were not present, they ask leading questions of their children who will subsequently embellish their report."
Hayne continued on to say there have been instances where children who were involved in traumatic events like school shootings will report events as though they were there when they weren't if they had conversed with friends or parents.
"Asking children too many of the wrong questions, providing them with the wrong materials can convince them something occurred when it did not."
But the Crown denies the alleged contamination had an effect, saying it would be unrealistic to expect parents to keep their children in a legally sterile environment given the gravity of the accusations.
John Billington QC says the considerable concern of contamination upon which the appeal hinges are "unreal".
"As this case unfolds you will see considerable concern of contamination which includes the parents speaking to their children during the process, that children underwent therapy, or had access to books about child sex abuse to keep themselves safe. In an ideal contrived situation, one might keep those children sequestered but the sort of complaints being made about contamination are unreal, these are little children whose parents love them and need to support them.
"It is unreal to suggest that conduct between child and parent contaminates evidence enough to disregard it entirely."
Professor Gail S Goodman, a distinguished professor of psychology, asked the court to participate in a thought experiment.
"If I gave you a list of words – say, cake, dessert, sugar, chocolate and then later asked you to remember them, you might think back and wonder 'did I say sugar?'
"Now, think about a man forcing his private parts into your mouth. You might forget the list of words – but you would remember that experience."
She says traumatic events are prioritised in recall for both children and adults, and often the more traumatic the experience the stronger the memory.
However, she added many children do not want to remember the intensely traumatic experience of being abused.
"Some perpetrators video record their sexual assaults of children and when researchers compare later reports with the recording, children across a wide age range leave out details that are documented in the recording - children don't want to talk about sexual experience.
"Child sexual abuse cases like Ellis' don't involve just recall memory – many factors determine what and how children remember, and personal biases can taint both."
Billington went on to say children should be taken seriously if they say they are abused - "especially if they are showing the signs that a number of other children of a similar age who were also abused have shown".
Harrison rejected this, saying there is no consensus on what signs or behaviours constitutes a victim of child sex abuse
"[There is] not one pattern or symptom that categorises the majority of sexually abused children."
Dr Tess G Patterson, a psychiatrist appearing on behalf of the appellant told the court she, Dr Frederick Patterson and Dr Suzanne Blackwell (both appearing for the Crown) agree there is no consensus on what symptoms abuse victims exhibit.
"It was very clear looking at the research, numerous papers cited there was no conclusive evidence and the behavioural symptoms alone should not be used for a conviction. Some behaviours linked to child sex abuse are also considered to be part of normal childhood development and there needed to be clear exploration as to why the child was presenting with these behaviours including talking to families."
Seymour and Blackwell both agreed the consensus was not entirely clear – but that the "clustering" of symptoms merited further investigation.
Blackwell said there were a number of things that would be "red flags".
"If a child had reported sexual abuse, and had shown inappropriate sexual action, or knowledge or had anxiety, sleep issues or nightmares – these behaviours would alert people to the possibility a child had been abused – but it would not be considered diagnostic."
"We agree with Dr Patterson, there are a wide range of behaviours and they do not constitute proof."
The appeal is set down for two weeks.
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