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Sunday
Star Times
August 10, 2003
Wake up Phil Goff and smell the injustice
by Lynley Hood
Author Lynley
Hood, whose book A City Possessed reignited debate over the Christchurch
Civic Creche saga and the safety of Peter Ellis' convictions, tells Phil Goff
the 15 things he should know about the case.
1. During the investigation, police, Child, Youth and Family staff and others
contaminated the evidence by distributing inflammatory literature and
spreading alarming rumours.
2. Crown prosecutor Chris Lange's handling of the case made rumours of a
ritual-abuse/child-porn ring operating out of the creche seem credible.
When children disclosed bizarre indecencies involving Peter Ellis' mother and
others, Lange sought an adjournment to the start of the depositions hearing.
In declining the application, Judge Green noted: "The matter of
principal significance raised by the crown is that arising from these latest
re-interviews there is a real possibility that further people might be
charged. Indeed, Mr Lange put it at a high probability . . . "
At depositions, Lange stated that children allegedly abused by Ellis and his
colleagues were kept in a tunnel beneath a trapdoor and made to stand naked
inside a circle of adults where they were made to kick each other's genitals.
Ellis was said to have raped a four-year-old, violated children using a
finger or stick, and put a needle into a child's anus. Yet the crown later claimed
that ritual abuse allegations played no part in the prosecution case.
3. In addition to indecencies involving creche staff, children mentioned many
other offences by many other people. These ranged from misdemeanours such as
driving without a licence and breaching the Zoological Gardens Regulations to
offences such as misconduct in respect of human remains, kidnapping,
poisoning, misusing a firearm, manufacturing pornography and murder. Despite
the prosecution's insistence that the children's allegations were credible,
no charges were laid in respect of these offences.
4. At depositions, almost all the videotaped interviews recorded with the 20
children involved at that stage were played in closed court. The more
videotapes were played, the more openly sceptical the media and court staff
became.
5. Between depositions and trial, crown solicitor Brent Stanaway reduced the
numbers of charges, complainants and defendants, and reshaped the indictment
in two significant ways. First, he reduced the 16 "circle incident"
charges which had been laid equally against Ellis and three of his female
colleagues, to two unequal charges: one against Ellis (as principal
offender), the other jointly against the women (as parties to an offence by
Ellis). This change enabled Justice Williamson to dismiss the charge of group
sex against the women while leaving the charge against Ellis (based on the
same allegations by the same child) intact.
Second, Stanaway eliminated or reduced the 10 sexual violation charges
against Ellis in which penetration of a child's anus, vagina or penis was
alleged.
Thus, a charge that Ellis sexually violated a child by inserting his penis
into the child's anus, became a charge that Ellis indecently assaulted the
child by placing his penis against the child's anus. This change allowed the
crown to explain away discrepancies between the violent and bloody abuse the
children said they had suffered, and the lack of evidence of penetration, by
claiming that the children were confused.
6. By refusing to allow the jury to see all the interviews with the remaining
13 children, Justice Williamson did not give Peter Ellis a fair trial.
Williamson allowed some excerpts from videotapes unwanted by the crown to be
shown. He also allowed the defence to cross-examine children about bizarre
events they could not remember describing in videotaped interviews they had
not seen. These rulings did nothing to overcome the fundamental unfairness
created by Williamson's refusal to allow the jury to see all the tapes.
7. In addition to giving evidence for the crown, Dr Karen Zelas advised the
police, trained and supervised the CYF interviewers, counselled a witness and
advised the judge on his questioning of child witnesses. Yet the Court of
Appeal ruled that she had no conflict of interest.
8. In her evidence, Zelas claimed that the children's tearfulness, stomach
aches, anxiety and tantrums were consistent with sexual abuse. Under
cross-examination, she could not think of anything that was inconsistent with
sexual abuse.
9. At the first appeal, the principal submission of Graham Panckhurst QC (for
Ellis) was that the verdicts were unreasonable because the children's
evidence was not credible. He presented a detailed analysis of the children's
interviews, followed by a review of the contextual evidence, and argued that
the two were incompatible. In response, Stanaway argued that Ellis was
convicted only on allegations containing "reliable central detail".
In his closing address, Panckhurst showed that the allegations on which Ellis
was convicted contained no reliable central detail whatsoever.
Yet, in its judgement, the Court of Appeal failed to acknowledge the attack
on the reliability of the central detail, and failed to examine the
interviews to determine whether any reliable detail existed.
10. At the second appeal, the court refused to re-examine matters canvassed
at the first appeal, no matter how unreasonably they had been dealt with on
the previous occasion.
11. Sir Thomas Eichelbaum's inquiry focused almost exclusively on the
children's videotaped evidence, and the guilt or innocence of Ellis.
Though these are central issues, the case is bigger than that. It is about
investigative procedures that turn allegations into evidence without pausing
for reality checks along the way, and about a justice system that cannot
reliably distinguish the innocent from the guilty. It is about a society
poisoned by a delusion that all men - even the most decent of men - are at
heart sexual predators who cannot be trusted around children.
But, even within its terms of reference, the Eichelbaum inquiry was flawed.
Eichelbaum took submissions from complainant families, from the commissioner
for children and from Ellis. He did not take submissions from non-complainant
families, from other creche staff, or from the family whose child retracted
her allegations.
Eichelbaum claimed that two international experts supported his conclusion
that Ellis was guilty. But only one of the experts - Professor Davies - was a
recognised mainstream expert, and he expressed serious doubts about offences
alleged to have taken place outside the creche. He also advised Eichelbaum to
do reality checks to see whether, in terms of the layout of the creche and
the way that it functioned, the creche-based offences could ever have
happened. But Eichelbaum did not do reality checks.
12. In the Employment Court
case taken by the 11 childcare workers who lost their jobs, careers and
unblemished reputations when the creche closed, the city council withheld key
evidence that supported the staff case.
The withholding of this evidence enabled the Court of Appeal to overturn the Employment Court
finding in favour of the staff.
13. There is now a broad consensus that, in the creche case, the justice system
failed, and has been unable to self-correct. A retired high court judge, 11
law professors, 11 Queen's Counsel, scores of lawyers and thousands of other
New Zealanders have signed the petition calling for an inquiry.
14. Until the issues raised by the case are addressed in a manner acceptable
to most New Zealanders, they won't go away.
15. The Minister of justice has the constitutional authority to establish a
royal commission of inquiry. He doesn't need new evidence, or the permission
of the judiciary. All he needs is moral courage and political will.
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