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Sunday
Star Times
August 10, 2003
Goff wrong about need for new Ellis evidence
by Deidre Mussen
New evidence is not required by law to establish a
Royal Commission of Inquiry into convicted child sex abuser Peter Ellis'
case, despite Justice Minister Phil Goff's insistence for it.
Under the 1908 Commission of Inquiry Act, a minister decides whether a case
warrants asking cabinet to decide if an inquiry is needed. The minister sets
the threshold for deciding to seek an inquiry, in consultation with his or
her officials and the Crown Law Office. Cabinet's approval is the next step
but ultimately the governor-general must give approval for an inquiry to be
established.
The act says an inquiry should be considered "when a situation is so
unusual, no other approach will do".
That includes:
Considerable public anxiety about the
matter.
A major lapse in government performance
appears to be involved.
Circumstances are unique, with few or no
precedents.
The issue cannot be dealt with through the
normal machinery of government or the courts.
Goff's stance may be changed by recommendations from the justice and
electoral select committee, which next week starts hearing a petition calling
for an inquiry into the former Christchurch Civic Creche worker's case.
Former Prime Minister Sir Geoffrey Palmer, a constitutional law expert, said
ministers listened carefully to recommendations made by select committees.
The committee would make recommendations once it had heard the petitioners'
claims.
But Palmer, a former justice minister, said new arguments or "new
something" would be needed to convince a minister that a Royal
Commission of Inquiry was needed into a criminal case.
"Any minister would have to be very, very convinced there was a
miscarriage of justice.
"We have got to remember this - the checks and balances brought into the
judicial system are considerable. Just because people have another theory
about what happened isn't a reason to disturb the findings of a trial."
The expense also needed to be considered, Palmer said. The most recent Royal
Commission of Inquiry, into genetic modification in 2001, cost $1.48 million.
While Palmer had not delved deeply into Ellis' case, he doubted it warranted
a royal commission.
"I don't necessarily think it falls into the same category as Arthur
Allan Thomas."
Thomas spent nine years in jail after being convicted of murdering neighbours
Jeanette and Harvey Crewe in 1970. He was pardoned and compensated after an
inquiry found police had planted evidence incriminating him.
A high court trial jury found Ellis guilty in 1993 of abusing seven creche
children. Ellis spent seven years of a 10-year sentence in jail before being
released on parole in 2000.
Goff has also said a royal commission is inappropriate while Ellis is yet to
exhaust all legal avenues.
Ellis' lawyer Judith Ablett-Kerr is taking the case to the Privy Council next
week.
Two Court of Appeal hearings into the case in 1994 and 1998 found no
indication that the conviction was unsound. In 2001, former chief justice Sir
Thomas Eichelbaum reviewed the hearings for a ministerial inquiry. He found
Ellis "failed by a distinct margin" to prove his innocence.
Public concern over Ellis' conviction was fanned by Dunedin author Lynley Hood's book A City Possessed.
It claimed a miscarriage of justice had occurred because of the reliance on
young children's at-times bizarre evidence and a lack of evidence that Ellis
had abused the children.
Last week, National Business Review publisher Barry Colman paid more than
$20,000 for a two-page spread in the Sunday Star-Times detailing some of the
children's transcripts - some which had been withheld from the jury.
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