Herald
July 1 2003

Justice system failures must be rectified for Ellis' sake
by Lynley Hood
author of A City Possessed: The Christchurch Civic Creche Case

The Herald editorial backing the Minister of Justice's refusal to establish a royal commission of inquiry into the Christchurch civic creche case was misguided.

In this case, the justice system has failed, and failed badly, and has been unable to self-correct.

It convicted Peter Ellis and threw Christchurch into turmoil on the evidence of very young children, in the absence of corroborating evidence, and despite the great majority of parents with children at the creche finding nothing inappropriate in Ellis' behaviour.

Until there is a full inquiry by an independent judge from outside the New Zealand jurisdiction, this case won't go away.

When Sir Thomas Eichelbaum was asked to review the case by Phil Goff in 2000, his terms of reference were narrow and flawed. In the course of his inquiry, he talked to some of the complainant families, and to the Commissioner for Children.

But he failed to speak to any non-complainant families (who were the overwhelming majority of creche parents). He did not speak to the creche staff. He did not speak to Ellis himself.

He also did not speak to the family whose child retracted her allegations, despite the fact that this child was the oldest and most credible of the Crown's witnesses.

She later confessed that she had lied about Ellis because she thought that was what her mother and the interviewer wanted her to say. Sir Thomas did not talk to that child.

Mr Goff has said that Sir Thomas was assisted by two pre-eminent international experts. But only one of the experts - Professor Graham Davies, of Leicester University - was a recognised mainstream expert. The other, Dr Louise Sas, of London, Ontario, was not.

Dr Sas believed small children could be ritually abused in day-care centres on a huge scale without anybody noticing. Her alleged expertise was based mainly on her involvement in some of the biggest ritual abuse panics in North America.

Mr Goff claims that both experts supported Sir Thomas Eichelbaum's conclusions. This is not true. Professor Davies' report does not support Sir Thomas' conclusions.

If I were to pick on just one point that shows up the justice system's failures, in general, and Sir Thomas' failures, in particular, it is this: in the course of her fourth videotaped interview, a child alleged that Ellis took her to his house where a man named Joseph teased her with his penis.

On the basis of that allegation, Ellis was charged with being party to an offence committed by an unknown man, at an unknown place, at an unknown time and date. The jury found him guilty on that charge.

The jury's verdict was upheld by two Court of Appeal hearings in front of a total of seven judges, and by Sir Thomas. He said that both he and his experts had no doubts about the reliability of the children's evidence.

But Professor Davies did have doubts. "There is nothing in this interview that convinces me that this child visited Peter's house or was assaulted by a man named Joseph," he wrote.

In fact, Professor Davies had doubts about all the allegations about unidentified people at unidentified places outside the creche.

As for the less bizarre allegations said to have taken place at the creche, Professor Davies advised Sir Thomas to do reality checks to see whether, in terms of the layout of the centre and the way it functioned, these offences could have happened.

But Sir Thomas did not do reality checks. And yet, he concluded, without reservation or qualification, that Ellis' guilt had been proved beyond reasonable doubt.

Now, a large number of New Zealanders have said it is time to look again at the case. Signatories to the petition include a retired High Court judge, nine Queen's Counsel, nine professors of law, 26 MPs (from every party in Parliament), two former prime ministers and four professors of psychology.

Clearly the issues raised by the case are of widespread concern. Until they are addressed, public and professional confidence in the judiciary will continue to be eroded.

The Minister of Justice has the constitutional authority to instruct the Governor General to establish a royal commission. He could do it tomorrow.

You don't need new evidence to establish a commission of inquiry. You don't need the permission of the judiciary. All you need is moral courage and political will.

As Edmund Burke said: "The only thing necessary for the triumph of evil is for good men to do nothing".