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The Press
April 6, 1998
Ellis's second chance before Court of Appeal
by Martin Van Beynen
The Governor-General has referred the Christchurch
civic crèche child-molestation case back to the Court of Appeal. Martin Van
Beynen outlines the arguments that will be made.
Peter Ellis will have another day in the Court of Appeal to convince the judges
his convictions on 13 charges of abusing children in his care are unsafe.
His successful petition to the Governor-General, as prepared by combative
Dunedin Queen's Counsel Judith Ablett-Kerr, is the breakthrough his
supporters have long sought.
The former childcare worker, now 40, has always proclaimed his innocence
saying the allegations by the 13 children at his trial in 1993 were the
result of:
* A climate of hysteria in Christchurch
when the allegations against him surfaced in November, 1991. The climate was
compounded by unfounded rumours of child abuse by satanists and
pornographers;
* A mindset, now discredited, that children do not fabricate allegations of
sexual abuse;
* Leading questioning by worried parents of suggestible children.
These points were argued at Ellis's High Court trial and again at his appeal
to the Court of Appeal in 1994. They also received an airing when the
Government was considering whether to order a public inquiry into the case.
The Court of Appeal, which provided arguably its most high-powered bench to
hear the case (Thomas Gault, Sir Maurice Casey, and the President Sir Robin
Cooke) specifically rejected the arguments.
Lawyers for Peter Ellis will need to have to have some new arguments.
This does not mean Ellis's lawyers will be unable to raise the points already
mentioned. The appeal will most likely contain new expert comment on the
material already raised.
Given debate about things such as child abuse, ritual abuse, and repressed
memories has returned to a more sensible level, new expert opinion about the
reliability of the children's evidence is likely to receive a more receptive
hearing.
Many overseas cases bearing the hallmarks of the Ellis case, have been
subject of reversals, compensation, and reviews.
Ellis will be able to bring up several new points which first surfaced in a
TV3 documentary in November last year.
The points from the report most likely to assist Ellis are:
* A juror's lesbian relationship with a woman who was a desk-mate of the
mother of one of the complainants in his trial;
* The behaviour of a key detective in the inquiry who propositioned the
mother of one complainant during the inquiry. The mother complained about the
behaviour but the defence was never told about the complaint;
* The same detective's admitted affairs with the mothers of two complainants
in the case after he left the police.
* The suggestion several more children have recanted their allegations
against Ellis over the years. (One child recanted before Ellis's 1994 appeal
resulting in three convictions being dismissed.)
Associate Professor Bill Hodge, at the Auckland School of Law, who went
through the Governor-General appeal procedure with his client Dean Wickliffe,
says the Governor-General procedure is a form of backdoor appeal. If the Appeal Court
finds that the new material renders the convictions unsafe, the convictions
will be quashed, he says.
Normally the court would order a new trial but in this case the court will
probably kick for touch and leave that decision to the Solicitor-General, he
says.
The main question would be whether the complainants could give their evidence
again. Expert opinion would probably be required, he says. He believes the Appeal Court may
require the lesbian juror to be interviewed.
Other commentators say a new trial would be impossible and a new trial ruling
from the Court of Appeal was tantamount to making Ellis a free man.
Associate Professor Hodge says he pioneered the petition to the
Governor-General procedure found in the Crimes Act in 1985. His use of the
procedure has prompted a cottage industry as inmates have taken the
opportunity to try to re-open their cases. In Wickliffe's case the Court of Appeal, on
receiving the referral from the Governor-General, overturned a murder verdict
and substituted a verdict of manslaughter. They left the sentence of life
imprisonment the same, however.
Other cases which have landed in the Court of Appeal as a result of a
referral from the Governor-General include:
* Last year Auckland businessman Stephen Collie had three convictions quashed
and had his 16-year jail sentence reduced by three years. Collie was
convicted in 1993 on 17 charges relating to seven complainants, some of whom
were prostitutes.
* In March the court quashed a rape conviction against Robert Bruce Sims on
the ground that his lawyer failed to tell the jury about his impotency. Sims
was convicted of raping a mentally impaired woman in 1996.
* In 1994 the court ordered a new trial for convicted murderer Ross
Appelgren. He was retried for the 1985 Mount Eden Prison killing and found
guilty.
* Last year the court overturned a rape conviction against David Doherty
after hearing new DNA evidence. He was acquitted of the 1992 rape at his
retrial.
After a six-week jury trial in May and June 1993, Ellis was convicted on 16
charges of sexually abusing seven children. He was acquitted on nine charges
relating to another six children.
The charges on which he stood convicted painted the picture of a predatory
monster who urinated on children, touched them indecently and put his penis
in their mouths.
Ellis, sentenced to 10 years in jail, continued to proclaim his innocence.
The case still stirs strong emotions in Christchurch
although public opinion has swung more strongly Ellis's way as the years go
by.
The new disclosures fail to change the views held by parents of children who
gave evidence at Ellis's trial. Nearly all remain steadfast in their belief
their children were abused by a cunning and pitiless pedophile. Some go
further and say Ellis was part of a sinister pedophile conspiracy.
However others, including parents who had children at the crèche, other
creche staff, and academics believe Ellis was the victim of a hysterical
reaction by parents compounded by a one-eyed police investigation.
Ellis's apparent ability to escape detection convinced police that not only
was he supremely cunning but also that he had not acted alone. Four women
creche workers were eventually charged but the charges were dismissed after
they had been committed for trial. Their treatment remains one of the justice
system's sorriest chapters, many believe.
The hard evidence against Ellis was, on one view, scanty. While attending the
creche none of the children who eventually gave evidence against him said
anything about being abused.
The creche was a busy place with parents arriving at all times of the day yet
Ellis was supposed to have urinated and defecated on children in the creche
toilets with doors left wide open. No-one had ever seen a child soiled by
such activities or in distress because of them.
The evidence against Ellis essentially came down to the children's words
which, in the end, had a powerful impact. They convinced the children's
parents and the experts. Police officers, jurors, and the presiding judge who
expressed his agreement with the jury's verdict were also persuaded.
Jurors had the benefit of expert evidence from prominent child psychiatrist
Karen Zelas, who told jurors they would have to make allowances for the
ability of young children to accurately recall events. Children's limited
grammar, vocabulary, and general language skills would sometimes make their
observations look muddled, she said. Prosecutor Brent Stanaway urged the
jurors to believe the children saying similarities between accounts, such as
the repeated mention of Ellis ``weeing on heads'' and the involvement of
other adults, reinforced the children's credibility. The details provided by
the children could only have come from children who had experienced the
events, he said.
The critics can point to several factors which undermine the interviews. The
interviews were riddled with apparent inconsistencies, contradictions, and
changed stories. Children also showed a tendency to weave in obvious
fantasies and impossibilities.
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CAPTION: Peter Ellis's mother Lesley with pictures of her son: new arguments
will be needed for the Court of Appeal.
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