New law raises Ellis questions

Strict limits will be imposed on opinions psychologists can offer in child sex abuse cases in a wide-ranging overhaul of evidence laws.

The Government's decision to restrict expert evidence has again raised questions around the safety of the Peter Ellis abuse convictions, and was welcomed by his lawyer Judith Ablett Kerr, QC.

She said the proposed law change was significant for Ellis as he continued to try to clear his name.

Under the Evidence Bill - a general rewrite of the almost 100-year-old Evidence Act - a judge can allow the opinions of psychiatrists and psychologists to be admissible in child sexual abuse cases, but only if the evidence will provide "substantial help" in determining facts.

In practice that is expected to mean experts will not be able to simply say that a child's abnormal behaviour, such as bed-wetting, is consistent with sexual abuse when it might be evidence of some other, unrelated trauma.

The proposed change raises the bar on expert evidence in line with other countries, and is a reversal of a more liberal approach adopted in the late 1980s.

Otago University Dean of Law Professor Mark Henaghan said it was "great news" the law was to change.

He said the current rule was "highly dangerous". It was introduced in 1989 amid concern that children's testimony was not being properly listened to.

"It was to protect children but you don't protect children by getting it wrong."

He said it placed too much weight on expert opinion which may not be grounded in scientific fact or peer reviewed.

The controversy around expert opinion has been central to the Ellis case.

He was convicted in 1993 of abusing children in his care at the Christchurch civic creche, but has always maintained his innocence.

Pivotal to his conviction was the evidence of prosecution witness and psychiatrist Dr Karen Zelas, who afforded credibility to the children's claims.

Judges have long criticised section 23G of the Evidence Act which governs expert testimony, including in cases where convictions have been overturned.

Editor of the New Zealand Law Journal Bernard Robertson called for an inquiry into all cases where a person has been convicted because of evidence allowed under section 23G.

Ms Ablett Kerr said the law now was open to misinterpretation and risked confusing juries.

Ellis' convictions stand despite appeals and an inquiry, but Ms Ablett Kerr said: "Peter's case is not over".

Options which remain open to him include an appeal to the Supreme Court or Privy Council, while a petition before Parliament calls for a Royal Commission of Inquiry into the civic creche case.

College of Psychiatrists chairman Dr Allen Fraser said his organisation would study the proposed law seriously, but he could not comment further.

But Act MP Stephen Franks last night cautioned against assuming the intent of the current law had gone, and said the new law still allowed for experts to give opinions.

The rewrite of the Evidence Act is expected to be hotly debated. Other changes including widening the use of hearsay or indirect evidence and allowing a spouse to be forced to testify against a partner in some circumstances.

However, in a move to protect victims of domestic abuse, judges will have discretion to excuse a person from giving evidence against a partner.

The Evidence Bill

* Limits what experts can say may be evidence of abuse
* Widens the use of hearsay evidence
* Legally protects a journalist who will not reveal a source
* Changes the self-incrimination rule to apply only to criminal not civil cases
* May compel a spouse to testify against a partner