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New Zealand Listener
February 19 2000
Volume 172, No. 3119, ISSN 0110 5787 Pages 20 – 21.
Ellis in Wonderland
by Bruce Ansley
There are strong arguments for a
commission of inquiry into issues surrounding the conviction of Peter Ellis,
with all eyes now on Justice Minister Phil Goff.
On the day Peter Ellis emerged from Paparua Prison blinking in the light of a
dozen television cameras, the new Justice Minister, Phil Goff, muscled into
the drama. Ellis was forced to leave jail, reaching the end of his sentence
after refusing the parole that could have implied his guilt. Goff ventured
into the scandal unforced, revealing a depth of conviction: there is no
political mileage in paedophilia. The question is now, can the minister keep
his bottle?
Of the two appearances, Ellis's was the more dramatic. Seven years in jail
had sharpened his features, and his hair was now worn in a long ponytail. His
minders, Judith Ablett Kerr, QC and her team of lawyers, had organised one of
the more unusual press conferences in a Christchurch apartment building.
"Selected" journalists - the lawyers were coy about how they had
been chosen -submitted questions in advance and were escorted through so many
locked doors that Ellis must have felt quite at home there. Ellis was then
brought in, only to have Ablett Kerr say that the questions, which lay about
her in reams, were not to be answered for fear of pre-empting the inquiry
that Goff had announced.
Throwing caution to the wind, Ablett Kerr confided to this reporter that she
was "stoked" by Goff's announcement. In fact, there seemed little
enough to be stoked about.
Goff’s publicly expressed doubts about Ellis's conviction go back to 1997,
when a 20/20 documentary raised new questions about the integrity of the
investigation and trial. Following last year's general election, Goff
promised a close look at the case should he be confirmed as Justice Minister.
Now he is Minister, but he is showing clear signs of discomfort. His
statement on the day of Ellis's release was carefully worded. He could not
condone a pardon for Ellis when the Court of Appeal had twice concluded that
there had been no miscarriage of justice. But the Court of Appeal itself had
noted issues in the case that might be referred to a commission of inquiry.
And Goff was still concerned about elements of the case. So he had asked the
Ministry of Justice to advise on what kind of inquiry should be held.
Goff declined to tell the Listener just what elements of the case he was
concerned about. But in a letter to Lesley Ellis, Peter Ellis's mother, he
acknowledged widespread public unease over aspects of the investigation,
trial and conviction, "which raise serious questions as to whether
justice has been done". An inquiry, he said, "would obviously focus
on whether the convictions entered against Peter Ellis were safe". It
would also examine wider questions about the way that evidence of abuse was
obtained from children, and whether that evidence could be reliable.
In other words, Goff was troubled by all of those issues about the case that
just will not go away: the uncorroborated and often bizarre allegations made
by children who may have been influenced by their parents, or social workers,
or investigators, or simply the sudden hysteria at the Christchurch creche;
or its chilling similarity to discredited mass allegation trials such as the
McMartin case in the US; or how Ellis's abuse could have gone unnoticed in a
small, open creche often crowded with women staff, parents, relatives,
students.
Ablett Kerr, who wanted a royal commission of inquiry, met Goff the day after
Ellis's release and told the Listener that she expected to hear from him
within two weeks. That the minister may be stepping back from a full inquiry
was implied by her next sentence: "Should an inquiry be insufficiently
wide to encompass the investigation aspects of the case and the issues of
contamination of the evidence of children, then he [Ellis] will have to
consider other options. The options include a petition to the Privy Council
or an application to the International Court of Human Rights." Goff was
reneging and Ablett Kerr, who is referred to by Ellis supporters in terms of
a particularly tenacious breed of hunting dog, was not going to let go. With
Ellis calling this reporter from the address where he and his mother have
gone to ground, saying that he would be breaking the 10 commandments laid
down for him (all forbidding him to speak publicly) if he said a single word
on the subject, but wanting the inquiry to roam through the dark corners of
the justice and prison systems, the business was developing a whiff of
failing intrigue.
Goff is in a nasty situation. There are no winners in this case and a very
long list of losers, ranging from the children and their families through the
police and social services to Ellis himself.
Now the minister risks adding the courts to the list. Whatever he does, that
system is going to take another hit. He could order a ministerial inquiry.
But there have been two inquiries into Ellis petitions already, the first
resulting in the case being referred back to the Court of Appeal, and the
second by a retired judge, Sir Thomas Thorp (appointed by Goff’s predecessor,
Tony Ryall). Thorp smelt enough rats for the grounds of appeal to be
broadened. He also declared the advantages of a commission of inquiry
probably to be outweighed by the disadvantages. Goff can hardly hop onto that
roundabout again.
And only a full commission of inquiry will now lay the matter to rest one way
or the other. The public suspects that something went wrong in the courts,
and the Court of Appeal itself acknowledged that its focus on the original
decision had to be narrow: only a commission of inquiry, it said, could
determine whether the new evidence offered by Ablett Kerr should be accepted,
or make a difference to the original verdict.
Critics of this approach argue that the Ellis case has already stacked up a
formidable number of court hearings, with always the same result. But the
nation's most famous pardon, in the case of Arthur Allan Thomas, went through
even more hoops.
In 1971, Thomas was convicted for the murders of David and Jeanette Crewe and
sentenced to life. Aspects of the case were then reviewed by an internal
police inquiry, a retired judge, and the Court of Appeal, which ordered a new
trial. From there, the case went back to the Court of Appeal. Thomas's
conviction survived every court hearing.
Following investigations by journalist Pat Booth and forensic scientist Jim
Sprott, and a book by the English author David Yallop, the government
commissioned a report by an Auckland QC. A year later, he concluded that an
injustice may have been done. With the public now firmly convinced that a
cartridge case, key evidence against Thomas, had been planted by police,
Prime Minister Robert Muldoon in 1979 granted Thomas a pardon. A Royal
Commission of Inquiry was appointed (the difference between a royal
commission and a plain commission of inquiry seems to lie in the added
status, and distance from government, conferred by the royal prerogative). It
granted Thomas $lm compensation, acknowledging that the money could not
obliterate the "high-handed and oppressive actions of those responsible
for his convictions".
All of this is a hefty precedent for Goff, especially as the Court of Appeal
itself pointed the way. The minister is in an interesting position, for he
has to get his chops around his own party, too. A strong Christchurch faction
within his Cabinet opposes any meddling in the Ellis case. Immigration
Minister Lianne Dalziel believes in the justice of Ellis's conviction.
Minister of State Ruth Dyson opposes a commission of inquiry, as does Phillida
Bunkle, the Alliance Minister of Customs and Consumer Affairs. Other
ministers, such as Housing Minister Mark Gosche and Alliance Minister of
Corrections Mall Robson, support an inquiry. In short, the stage is set for
the kind of scrap within Cabinet that has rent Christchurch for the past
seven years.
The Court of Appeal made four references to a commission of inquiry. All of
them referred to a commission as a better place to explore ways of obtaining
evidence of sexual abuse from child complainants. Goff could take the safe
and narrow view and confine the terms of reference of any inquiry to methods
and procedures that may be used in future cases. But that would make no
difference to Ellis's position. His supporters are unlikely to be so
altruistic. Nor would a public whose doubts over the case are summed up by
the common question, "Did he do it?", be satisfied by a finding
that would merely ensure this would never happen again.
If he goes down the broader track, he may be faced with an outcome that effectively
shows the courts to have failed in their work again, shaking public
confidence in a string of controversial verdicts from David Tamihere to David
Bain, Rex Haig to Scott Watson. But the real question is not whether Ellis is
innocent or guilty, but whether he should have been convicted. The next week
will show whether Goff will risk getting his fingers burnt over it.
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