Dunedin, New Zealand.
Wednesday, 12 December
2001.
Page 13
OPINION
The Peter Ellis case has never been "fully" considered by any
of the tribunals relied on by the Minister of Justice, Phil Goff, in denying
further consideration of the Christchurch Civic Creche case, writes JUDITH
ABLETT KERR. Ms Ablett Kerr, counsel for Ellis, responded to the minister's
reply to our editorial (8.12.01), in a letter to the Editor.
I READ with interest the letter from the Minister of Justice (8.12.01) in
response to an earlier editorial.
I
found it highly unusual for a minister to personally respond to such an editorial,
and can only assume that the contents of it had made sufficient impact to
engender a reply.
I
would not normally choose to use Letters to the Editor as a vehicle to debate
any case of mine, but I feel that I cannot allow the minister's letter to go
without response.
Your
readers are entitled to know that the Peter Ellis case has never been
"fully" considered by any of the tribunals mentioned in the
minister's letter.
The
jury, for example, only heard selected portions of the children's video interviews
and did not hear from some key witnesses, such as the mothers of the two
original-allegation children. Had they given evidence, they would have
undoubtedly been questioned over matters relevant to the contamination of the
children's complaints and the atmosphere of mass-hysteria.
The
first Court of Appeal hearing was constrained by the very structure of our
appeal process. An appeal is not an opportunity to revisit the case and
reassess the verdict of the jury. In 1997, when I presented Mr Ellis' first
petition to the Governor-General, I asked for a pardon rather than a new
appeal, as I took the view that the appeal process was not equipped to deal
with the issues raised by the case. I pointed out that the only way to resolve
the Ellis case was to hold a royal commission of inquiry.
The
second appeal in 1999 proved the point which I had tried to make. On that
occasion, the court did not even review the whole of the Ellis trial, but was
confined to considering only the points contained in the referral drafted by
the Minister of Justice. The restrictions on what type of material they were
able to consider meant that significant parts of the 500 pages of submissions
and exhibits, which had been put forward in support of Mr Ellis' case, were
excluded from consideration. The court acknowledged its limitations and on no
less than four occasions referred to the fact that a commission of inquiry
would be needed to examine these matters.
Despite
the indication of the Court of Appeal, the ministerial inquiry of Sir Thomas
Eichelbaum did not consider the whole of the Ellis case. I had asked the
Minister of Justice for it to do so. However, a ministerial inquiry was set up
with a severely-restricted referral. I advised the minister and the inquiry
that such a referral would not address the issues of concern. Indeed, the terms
of reference failed to cover many of the issues which the Court of Appeal had
recognised that it could not deal with.
I
note that the minister reports that Sir Thomas Eichelbaum spent 400 hours
reviewing material before coming to his conclusion that the Ellis convictions
were safe. I have no doubt that Ms Hood, like myself (although independent of
myself), has spent thousands of hours in reviewing materials before coming to
the opposite conclusion. I think it most unfortunate that the Eichelbaum report
is somehow projected as an inquiry into the whole of the case, when it clearly
was not as it was restricted by its terms of reference.
The Eichelbaum inquiry declined to refer the issues pertaining to the children's evidence to any of the world experts nominated by myself. These included the renowned Prof Stephen Ceci, regarded by many as the leading authority on children's evidence in mass-allegation cases. However, even one of the experts which it did consult (Prof G. Davies) concluded that, in relation to one of the convictions, there was nothing in the interview that led him to believe the child's account of a visit to Mr Ellis' house and the events complained of. That opinion seems, however, to have been ignored.
Similarly, no regard appears to have been given to the expert's opinion that the allegations relating to the creche itself needed to be studied in the "wider context of the investigation", such as whether the physical layout of the creche could give sufficient privacy for these events to occur, and whether the evidence of other children could corroborate these specific allegations. Prof Davies acknowledged that: "These are issues which are beyond my remit but which the wider inquiry will wish to consider."
While
Peter Ellis and his legal team continue to weigh-up the possibility of taking
his case to either the Human Rights Commission in Geneva or the Privy Council
in London, the course that is really appropriate is the one that the Court of
Appeal alluded to, namely a commission of inquiry where all of the evidence can
be received and tested in a public forum.
Then,
we may achieve true closure to this enigma of the New Zealand criminal justice
system.