The Press,
July 2, 2003

A Truly Political Issue
by Nigel Hampton, QC

The Peter Ellis case has passed through, and is now well past, the judicial system. It is in the political arena.

The Minister of Justice, Phil Goff, in taking the stance he has to the petition seeking a Royal Inquiry, abdicates his authority. He attempts to hide behind the judicial processes which have taken place, flawed as those processes are said to be in the petition, in Lynley Hood’s book, and as briefly argued below.

The matter is no longer one for the judicial system. It is, properly, in the political arena. Historically, instances of injustice have been solved politically, the prime example being the Arthur Allan Thomas affair.

The Minister Hides, as well, behind his call, which he repeats as a mantra, for fresh information, for new evidence.

With respect, this is a ridiculous call. It means that the Minister has failed to understand the whole basis of the Ellis complaints, the petition, and Lynley Hood’s book. There never was evidence of any crimes being committed. There never could be. No crimes were committed.

That is a point worth making. It is not like, for example, the Bain case or the Thomas case where the issue was not whether any crime had been committed, but who was responsible for the crimes undoubtedly done.

In the Ellis case there can never be new evidence, unless further children retract their allegations. That seems highly unlikely, given what has occurred with those children – the allegations have been made within those young people almost as their raisons d’etre. And so made by their parents and the interviewing authorities. In addition, I note that the Minister says that little would be achieved by re-questioning those who gave evidence as children more than 10 years ago. So, no opportunity for retraction there, anyway.

In any event, where would it take the matter, given that the Crown’s most credible child witness retracted its allegations, but, overall, that made no difference.

The essential difficulty in the Ellis matter has always been the fact that the Crown, and then the courts, narrowed down the ambit of the evidence, right from the start and on throughout the judicial processes, to such an extent that it could be said that Peter Ellis was doomed as soon as he was charged.

Not one court, through the processes, has ever chosen to examine the matter in its full context and with its full background. The courts, and in particular the courts on appeal, have turned down any attempt by any lawyer for Mr Ellis to have that done, and that is why I argue the processes are flawed.

The material has always been available. There have been numerous unsuccessful attempts to place it properly before the courts and have it argued and adjudged. But the courts have refused to consider it. It is that material that is now set out by Lynley Hood in her book, and it is that material which has been deliberately ignored.

There is no need for new evidence. It is all there. No one in the judicial system has looked at it properly and it needs to be done now, politically. As the Court of Appeal has itself indicated, the full extent of the matters covered by Lynley Hood’s book are matters that are best placed before a Commission of Inquiry.

The Appeal courts have always been circumscribed in their view of the matter by first the Crown’s editing of the evidence and the trial court’s endorsement of the restricted material placed before it; and secondly by their reluctance to go outside those early imposed boundaries and view the matter in its entirety, in its true context.

That is why the matter must be dealt with as a political issue, for there to be a viewing of all material. The answer is there. There is no fresh information to put before the Minister. There is no need for any new evidence. Look objectively, rationally, at what is already there, and always has been. That will suffice.