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Sunday Star Times
June 22, 1997
How on earth can this abuse case have happened?
by Frank Haden
* Four years ago today, Peter Ellis
was jailed for 10 years for sexually abusing seven children at the Christchurch Civic
Centre creche. Frank Haden, who has long argued the case against Ellis should
have failed, looks at new moves to free him
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FOR the first time since Peter Ellis (36) was jailed, a significant move has
been taken to release him. QC Judith Ablett-Kerr says she hopes to have a
Privy Council hearing in October to overturn Ellis' convictions or at least
return the case to the New Zealand Court of Appeal for reconsideration.
The four grounds of appeal are:
* The evidence on which Ellis was convicted is incapable of belief.
* The exclusion of some videotapes of evidence meant the jury had vital
evidence withheld; the whole issue was the credibility of the children, and the
jury was denied the opportunity to make an informed judgment.
* The fact the jurors had with them in the jury room copies of the
transcripts of prosecution videotapes of the complainants' evidence, but had
no evidence of their cross-examinations.
* The domino effect that should have followed the recanting by the eldest
child complainant.
The case has stirred a huge amount of emotion and received publicity overseas
where it is seen as yet another in a lengthening list of miscarriages of
justice after false accusations of child sex abuse by young children left by
their working parents in the care of strangers.
The most recent legal action in the case was the Appeal Court's decision 15 months after
Ellis's conviction not to overturn it. It acknowledged the way the prosecutor
at Ellis's High Court trial had played to the jury only 22 tapes out of a
total of 44, leaving out the tapes containing the more outlandish claims of
abuse. The Appeal Court
also endorsed the way Mr Justice Williamson had restricted the presentation
to tapes containing allegations of the specific offences Ellis was charged
with -- he ruled that jurors could not be shown or hear tapes that were not
specifically relevant to the charges.
The trouble with this ruling was that the jury did not hear or see tapes on
which children made the most bizarre claims about sexual activities by Ellis
and four women who worked with him at the creche.
Counsel for Ellis objected to this restriction, pointing out that in the
absence of any concrete or independent evidence, the charges depended on the
uncorroborated testimony of the children. He stressed that the children had
made wild, bizarre and unbelievable claims that cast grave doubt on their
credibility, and the jury should hear about them before they made up their
minds whether to believe the claims relating to the specific charges. But
Justice Williamson was adamant that the Evidence Act precluded this sort of
evidence reflecting on the credibility of the complainants, and ruled it
inadmissible.
WHEN Ellis appealed, the Appeal
Court upheld the convictions, saying Justice
Williamson had been right to seek to prevent the trial becoming enmeshed in
peripheral matters in tapes the Crown wasn't relying on.
Then, the Appeal Court
refused to take the admission by the oldest complainant, a girl aged 11 at
the time of the appeal, that she had made it all up. By common consent, the
girl was the most credible of the complainants, the one most likely to be
believed by the jury.
She was the first child to give evidence. She had been a particular favourite
of Ellis, and according to her mother, he was very open in his admiration of
her, talking about how pretty she was and how special she was to him. He came
to her fifth birthday party and gave her a gold bracelet.
She made three charges against Ellis, that between the ages of three and
five, at some time between 1986 and 1988, she was touched on the vagina and
anus by him, and made to touch his penis. In evidence she said Ellis had
showed her his penis, talked about sex, and suggested intercourse as a game.
Three out of the seven children who were finally believed by the High Court
jury were the offspring of social worker mothers. This girl was one of them.
She had been shown books about "secret touching". But her
allegations, unlike many of those made by the other children, did not strain
belief; they could have happened. So the jury convicted Ellis on all three
complaints.
Then, just when the appeal was due to be heard, she recanted. She said the whole
thing was nonsense. She'd made it up. She said she had given the answers she
thought the interviewer wanted. Here was one child who realised what had
happened.
Most people expected the Appeal
Court to give due weight to the knocking away of
one of the prime supports of the prosecution, and overturn the now shaky
convictions relating to the other six children. Instead, the judges said the
recanting did not affect their view of the correctness of the other
convictions. They said that having regard to the extensive circumstantial
detail in her evidence, they were by no means satisfied that she lied at the
interviews, though she might now genuinely think she did.
DREDGING through mountains of transcripts and notes of evidence in the Ellis
case, it is hard not to ask how on earth could it have happened? Of course
there are child abusers, lots of them -- though most child abuse occurs in
the victims' own homes.
That's the tragedy of this case: there are now a couple of dozen badly
abused, confused and frightened kids in Christchurch, who can't trust what's
in their heads any more, who still think bad things happened because their
memories are so screwed up by parental questioning and painful interviews
based on disastrous official misunderstanding of children's memories, the
capacity of six-year-olds to fantasise about what is supposed to have
happened when they were two, three and four, especially when offered leading
questions.
This worries Peter Ellis. I have visited him twice in Rolleston Prison where
he is a model prisoner, a favourite with guards and fellow prisoners who to a
man are satisfied he was wrongly convicted. They have pointedly not subjected
him to the ill-treatment traditionally handed out to child molesters.
ELLIS told me how sad he is at the effect on the children of being coached by
their parents and strangers till they did not know what was truth and what
was lies. He doesn't blame the kids at all: he blames the parents who let
hysteria draw them into a witch hunt, and the over-zealous professional women
of the child abuse industry.
I've also talked to the four women creche workers who were accused along with
Ellis of sexual ill-treatment of children, but acquitted. A less likely
quartet of abusers, let alone sexual abusers, it would be hard to find. All
still live in Christchurch,
coping with the heavy financial and social costs of defending themselves.
For Jan Buckingham, Marie Keys, Deborah Gillespie and Gaye Davidson, their
futures may not be ruined, but they are damaged beyond repair. None of them
would ever work anywhere near children again; in fact, they avoid contact
with children, though they know they are impoverishing their own emotional
lives by doing so.
The tragedy of the Ellis case is that it began with a mistake, an honest
mistake, carried on through a procession of honest if extremely foolish
mistakes. A child made an observation about not liking "Peter's black
penis". The boy quickly made light of the remark, said he had been
joking, stuck to his guns and never made any further allegations or gave
evidence.
His mother was typical of the sort of people who patronised the creche
such as social workers and teachers who came from the furthest corners of Christchurch because it
was feminist, lesbian-supportive, strong on Maori activism, whales, nuclear
power and global warming. It still is; when I walked through, the notice
boards show nothing except the official name has changed.
The mother of the "Peter's black penis" child, who stated that she
had herself been a victim of child sex abuse, was a founder member of the sex
abuse lobby group START, and had a history of counselling parents of children
who reported being sexually abused. Soon the word spread among other mothers
that Peter Ellis was abusing creche kids. Once that fuse was lit in those
receptive conditions in Christchurch,
where the police sex abuse unit and social workers were hot on the trail of
an imaginary paedophile ring involving the usual fairytale mixture of top
businessmen and Freemasons, there was no stopping the witch-hunt.
The Ellis allegations gave them their chance to make an example of a dirty
paedophile. Parents swapped notes, began interrogating their kids, arranging
Social Welfare interviews, and away it went.
Everyone believed fervently in what they were doing: parents, counsellors,
policemen, psychologists, interviewers and prosecutors. The children
believed, too, once they'd been effectively coached into their allegations.
No one stopped to consider that there were no opportunities for Ellis to have
done the things they said he did. The creche was crawling with unexpected
visitors at all hours. Students and work scheme people were getting in the
way and accompanying Ellis on the walks he took with groups of four of five
children. The door to the toilets, within three or four paces of the main
play area where children were running about or sitting in circles on the
floor, was almost never shut.
What is the Privy Council to make of the tale by the boy at the centre of the
bizarre "circle incident", in which children were made to stand
naked in a circle of 20 adults, mostly slitty-eyed brown-skinned men in white
suits playing guitars, interspersed with four women workers from the creche,
and submit to kicks and punches to their genitals? This boy's litany of
claims is chiefly remarkable for the fact that it tallies neatly, point by
point, with the classic 16 markers for recognising satanic ritual sex abuse
of children, as detailed in a book by the well-known American satanic ritual
writer Pamela Hudson. The book had become available in Christchurch a short time previously.
This boy told his mother that Ellis had dug up coffins, he had seen dead
people, one was Jesus, so he dug him up to put knives in him. This boy's
tales, recorded when he was six, included having sharp sticks and burning
paper shoved up his anus, being kicked in the genitals and being taken to a
Freemasons' hall where he was subjected to further indignities, and being
hung up in a cage on a hook in the ceiling of an upper room in the creche
building by Ellis's mother while Ellis held the ladder. They were prudently
watered down till they became accusations that jurors could be expected to
believe.
Ellis, who had been required to change this boy's soiled clothes and clean
faeces off him when he was aged two and three, was eventually convicted of
touching the boy's penis, and putting his own penis to the boy's mouth and
anus over a two year period.
The jury considered a fourth charge, that Ellis had kicked the boy and hit
him in the genitals and got another man to shove a needle into his penis, but
rejected it.
This led eventually to the Appeal
Court's remark that it was not surprising that
the jury acquitted on the bizarre charge but convicted on the charges which
could be "more readily comprehended".
The judges might have been expected to realise that whether or not a charge
is "more easily comprehended" is no way to judge whether or not to
convict. And why did the Appeal Court endorse Justice Williamson's failure in
his summing up to draw the jury's attention to the bizarre content of some of
the children's interviews, weird claims which should have thrown doubt on the
marginally less bizarre claims. Instead, the Appeal Court commented that the bizarre
allegations must have been very much at the forefront of the jury's mind.
The jury did not consider the implications of a girl complainant's tale of
Ellis pulling a sharp stick off a bluegum tree, the sort with koalas on it,
then stripping the leaves off and shoving it violently up her anus into her
stomach through her pants, which her mother then had to mend, made her drink
wees from a bucket while asleep, and made her eat a mixture of dough and
poohs.
In the Ellis case, the Evidence Act has failed. It should be amended to
compel counsellors, therapists, psychologists and social workers, to refer to
children's reports of sex abuse as "allegations", not
"disclosures". You can only "disclose" something that has
happened; you can't "disclose" a fantasy.
Another warning is the fault in the act which allows an "expert"
(in practice, any counsellor or sex abuse consultant) to give evidence on
whether a complainant's behaviour is "consistent with" the
behaviour of sexually abused children. Not behaviour "pointing to" or
"indicating" abuse, but merely "consistent with" the
behaviour of a benchmark abused child.
As one of the counsellors admitted during the Ellis case, practically any
behaviour at all can be "consistent" in this sense -- if the
complainant child and the benchmark child both have stress headaches, for
instance, that's "consistent" with the complainant having been
abused
Peter Ellis cannot expect a Parole Board hearing until February 1999.
He says there's no way he's going to pretend he's guilty and display spurious
"remorse", so the board is almost certain to take its traditional
view that they can't afford to let him out on parole because his lack of
"remorse" shows he'll be at it again within hours. So he could stay
locked up until June 2003 -- unless Judith Ablett-Kerr QC persuades the Privy
Council to take a more sceptical view.
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