PUBLISHER'S NOTE: (ONE): The New Zealand Supreme Court has made clear, three years after Peter Ellis's death, that he is the victim of a substantial miscarriage of justice for which retired psychiatrist Karen Zelas bears much of the blame because she exceeded the bounds of expert evidence in sexual abuse cases. Ellis suffered enormously having been wrongfully convicted of 16 counts of horrific sex abuse crimes in which Zelas, who supervised the interview process and testified as an expert for the prosecution. As 'Newsrooms' News Director Cass Mason wrote following the Supreme Court verdict, under the heading, "Peter Ellis is an innocent man. (At this link):
"A central figure in this miscarriage of justice is child psychiatrist Karen Zelas, who gave evidence on behalf of the Crown but also supervised the children’s interviews and helped police with the investigation. Zelas was president of the Royal Australian and New Zealand College of Psychiatrists between 1989 and 1991, the body responsible for the training and education of psychiatrists in Australia and New Zealand. The court found Zelas “exceeded the proper bounds” of the 1908 Evidence Act, namely: she commented on the credibility and the reliability of the complainants’ evidence, which wasn’t permitted; her evidence lacked balance in that she didn’t present any other possible explanations for the 20 behaviours - many of those common in childhood - she presented as being consistent with sexual abuse and problematically suggested the fact a child had alleged abuse transformed those normal behaviours into symptoms of that abuse. “The overall effect of Dr Zelas’ evidence was to incorrectly suggest to the jury that ‘clusters’ of behaviours supported a finding of sexual abuse. That impression was compounded by the chart the Crown produced at trial, which was itself an unbalanced and unfair representation of the evidence it purported to summarise.” The admission of her evidence was ultimately found to be an error of law. In terms of the contamination of evidence, the risk was found to have been higher than the jury was led to believe and that, had it in fact occurred, it would not have been readily detectable. Professor Harlene Hayne gave evidence on behalf of Ellis saying the level of risk was high, pointing to potential contamination resulting from “meetings between parents of the complainants during the investigatory phase; discussions between parents and complainants about the allegations; parent-to-parent discussions; and complainant-to-complainant discussions”. The Crown’s Professor Gail Goodman largely agreed, saying the contamination risk in four of the complainants was high, and moderate to low in the remaining two. The judgment found Zelas’ evidence understated or mischaracterised this risk, and was not counteracted. The court also thought it significant she had expressed concern about potential contamination before trial, which never made it into the trial itself. “If the jury had been correctly informed of the level of risk, that may have created a reasonable doubt about the allegations made, at least in relation to some of the complainants. As the evidence of the complainants was mutually supportive, the undermining of some of the verdicts necessarily calls into question all of the verdicts.”
Most importantly, Masson tells us that, "This is not the first time Zelas’ work has been criticised. In 2003, the Christchurch psychiatrist and psychotherapist was blamed for a miscarriage of justice in another sex abuse case. The Court of Appeal found she had "gratuitously" exceeded the scope of permissible expert opinion."
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Fortunately, I was able to find a 19 August, 2003 New Zealand Herald article on the 2003 case Mason was referring to, running under the heading, "Judges blame Ellis expert." (New Zealand Press Association):
https://www.nzherald.co.nz/nz/judges-blame-ellis-expert/URTCRCCTS2A54ZJB3C7K4E7GZM/
The story begins: "An eminent child psychiatrist who helped to convict Peter Ellis has been blamed for causing a miscarriage of justice in another sex-abuse case.
Christchurch psychiatrist Karen Zelas was found by the Court of Appeal to have "gratuitously" exceeded the scope of permissible expert opinion.
Multiple convictions arising from the case have been quashed and a retrial has been ordered. Naming the alleged offender is prohibited as are any aspects of the case that would identify him.
The reversal comes at considerable cost and embarrassment to the Crown, at a time when Dr Zelas' conduct in the Ellis case is under close scrutiny.
Auckland University law lecturer Scott Optican said the appeal decision was rare, but not unheard of. Other child sex-abuse convictions had been quashed after experts were found to have overstepped the mark.
Criticism in the appeal judgment of Dr Zelas' evidence concerned the statutory boundaries laid out for expert witnesses.
As she did in the Crown vs Ellis, Dr Zelas in this case gave evidence for the prosecution about the alleged abuse of several girls.
But she departed from her reading of an agreed brief of evidence to say there was "no known prior sexual abuse" of one of the complainants.
The Appeal Court decision said this additional comment (meant to be deleted after being challenged by the defence) was made "gratuitously" and, as a factual issue, fell "outside the scope of permissible expert opinion".
"It also carries the inevitable inference of the doctor's opinion that the present matters before the court were, in fact, occasions of sexual abuse," the judges said.
Dr Zelas gave further evidence that it was unrealistic for a young child to be able to accurately estimate distances or describe geographical locations - a difficulty for one of the complainants.
"We think that comment was not so much an opinion as to [the child's] mental capability as an apology for the quality of her evidence in certain respects," the Court of Appeal judges said.
The judges expressed concern about "a pervasive quality of justification for potentially challengeable aspects of the girls' evidence.
"It is, of course, essential for any expert witness to be entirely fair and objective and to avoid the fact or appearance of being an advocate for one side or the other. We regret to say we have reservations about aspects of Dr Zelas' evidence on this account," the judges said.
They were concerned that Dr Zelas had, in many subtle respects, crossed the boundary between permissible information and impermissible evaluation of the complainants' credibility.
Together, the evidential breaches by Dr Zelas amounted to a miscarriage of justice, the court decided.
"In all fairness to Dr Zelas, we do not suggest that the excess was deliberate," the judges wrote.
Repeated attempts to reach Dr Zelas were unsuccessful.
Crown prosecutor Mark Zarifeh said he did not know how much the case had cost to this point.
He could not comment on the appeal decision because of the pending retrial.
A new trial date is expected to be set in the High Court at Christchurch early next month.
The police officer in charge of the case (unnamed to observe the sensitivities of the suppression order) said he was "gutted" by the outcome. He felt for Dr Zelas.
"To be fair to Karen, I know she's certainly copped a fair bit of flak in recent times, but she really is, from what we're led to believe, New Zealand's eminent person in regard to these matters."
Dr Zelas has been criticised for her work on the Ellis case, in which she backed the credibility of the child complainants."
The entire story can be read at:
https://www.nzherald.co.nz/nz/judges-blame-ellis-expert/URTCRCCTS2A54ZJB3C7K4E7GZM/
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PUBLISHER'S NOTE: (TWO):
Dr. Karen Zelas, now retired, was president of the the body responsible for the training and education of psychiatrists in Australia and New Zealand for several years. The two high profile child-cases have one disturbing characteristic: A propensity to beyond the legal boundaries established in New Zealand to protect innocent people from being wrongly convicted of child sexual-abuse, with all of the horrific consequences that go with it. These circumstances require a public inquiry, not only into these two cases - but also into every other case in she has been involved be it in interviewing children, or in testifying as an an expert child witness. Zelas was, like disgraced Ontario pathologist Charles Smith, the namesake of this Blog, particularly dangerous, because of the eminence they shared, their fervour to protect children, and their disrespect of the boundaries imposed by the law upon them, with catastrophic consequences to innocent people.
Harold Levy: Publisher: The Charles Smith Blog.
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PUBLISHER'S NOTE: I am monitoring this case/issue/resurce. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog;
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL:
https://www.blogger.com/blog/post/edit/120008354894645705/4704913685758792985
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices."
Lawyer Radha Natarajan:
Executive Director: New England Innocence Project;
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FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
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