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The
Christchurch Civic Creche Case |
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Early last month,
convicted child molester Peter Ellis suffered a heart attack. Ellis may be a chain
smoker who is partial to red meat and the odd tipple, but the most probable
cause of his condition appears to be stress. Ellis has waited nearly two
years for a select committee to decide whether to recommend a Royal Commission
of Inquiry into his 1992 conviction of multiple counts of child abuse. His
case is almost unanimously regarded as the greatest miscarriage of justice
this country has seen since Arthur Allan Thomas. Peter Ellis has been waiting
a long, long time for justice, and at the rate things are going, time may be
running out. * * * New Zealand was not the
first country to be swept off its feet by sexual abuse hysteria. It all began
in the United States with the notorious McMartin case, the longest and most
expensive debacle in American criminal history. Then there was the Mr Bubbles
case in Australia, the Saskatoon case in Canada, and countless others. In the
Civic Creche case in Christchurch, Peter Ellis was convicted on sixteen
charges of sexual abuse of mind-boggling proportions. Same shit, different
country. Except, unlike in the other cases, our legal system continues to
default on the debt of justice it owes its casualty. All these cases are
remarkable for their consistency, their unfailing tendency to follow almost
identical scripts: a psychologically unbalanced parent or family member makes
allegations of sexual abuse that, with the flames being fanned by a menagerie
of overzealous child protectionists and police, explode into an epidemic of
extraordinary claims of widespread and undetected sexual depravity. In strict accordance
with the tried and true script for such cases, the instigator of the Ellis
case was a psychologically troubled woman with a background in sexual abuse
therapy. Ultimately, the parents of five of the seven children whom Ellis was
convicted of abusing had worked in the field of sexual abuse. To many, this
would seem an extraordinary coincidence. To others, it would seem anything
but. The woman, referred to in A City
Possessed, Lynley Hood’s exhaustive critique of the case, as Mrs
Magnolia, made the claims after her three year old son told her that he
didn’t like Peter’s black penis. The child never made any further allegations
and later admitted he had been telling stories. Nonetheless, Mrs Magnolia
fervently spread the word among parents that her and their children had been
victims of sexual and ritual abuse. After removing her child from the creche,
she went on to make baseless allegations that another gay male childcare
worker at the next creche had also abused her son. What followed was four
months of panicked networking between parents, meetings at which details of
the alleged abuse were aired, and frenetic interrogating of children by their
parents marred by uncontrolled cross-contamination of stories. Not once in
those four months was Ellis spoken to by police. In March 1992, after four
months of being kept in the dark as allegations festered, a bewildered and
distraught Ellis was arrested and charged. What followed was a trial by media,
before the court trial had even begun. It never seemed to
occur to anyone that, had Ellis been sexually abusing children on a massive
scale for five years, there would have been some smoking gun of some sort.
Someone would have seen something. Some child would have come home
traumatised and said something to their parents. But over a decade later,
there is still no smoking gun, not even the slightest whiff of anything –
beyond the Department of Social Welfare's surreal interviews of the children
– that points to Ellis’ guilt. For his entire time at the crèche, Ellis had
been a teacher who enjoyed immense popularity among the crèche children.
Parents who later claimed to have always harboured dark doubts about him
actually displayed great satisfaction with Ellis’s performance during his
time at the crèche. Until allegations started boiling over, the children’s –
and parents’ - fondness towards Ellis indicated that he was a well trusted
and affectionately regarded teacher who parents were more than happy to
entrust the care of their children to. “I think he’s a very
honourable man,” says National MP Katherine Rich, who has championed Ellis’s
case since reading A City Possessed.
“I would have no hesitation leaving my children in his care. I’ve got a two-and-a-half-year-old
and a three-and-a-half-year-old, and there is no doubt in my mind whatsoever.
This whole thing has been a travesty.” Over the course of the
investigation, 127 children were interviewed. Not a single child made a
disclosure of sexual abuse on their first evidential interview. However,
following months of repeated interviews with children, often stretching into
hours and loaded with blatantly leading questions, the Department of Social
Welfare interviewers started to get results. As A City Possessed author Lynley Hood aptly describes, “After three
months of parental questioning about Peter Ellis, nudity, sex, breasts,
vaginas, penises, ejaculation, bottoms, scariness, naughtiness, soreness,
secrets, yucky touching,, toileting, poos, wees and the crèche, the kids
started talking dirty” As the interviews
dragged on, the claims became even more outlandish. The interviewers were
more than happy to play along. One child, Ryan Matai, enthralled interviewer
Cathy Crawford with revelations that Ellis had smacked his bottom, choked
him, pulled his belly button off with pliers, pulled his penis off with
pliers, and that he had put cellotape on his penis and ripped it off, causing
him to bleed to death. He also made the even more alarming claim that Peter
killed all the boys - except for him - with axes. Despite Ryan’s frequent and
imploring claims that he was “just really tricking”, and pleas such as “Do
you hear…do you know that I’m just joking?”, Crawford, expert witness Karen
Zelas, the police, and the Crown Prosecutor accepted that Ryan had provided
evidence of sexual abuse that was reliable enough to take to court. Clearly,
the juggernaut of sexual abuse hysteria had well and truly leapt the rails by
this point, and it was only to gather speed – and casualties – from here on
in. Another child, for whom
Ellis was convicted of multiple charges, was flummoxed when presented with an
anatomically correct doll. Despite making a string of allegations involving
Ellis’ genitals, the child clearly did not recognise what pubic hair was. The
child’s failure to recognize pubic hair was never mentioned in the
interviewer’s resulting report. The transcribing of the interviews also
carried a great deal of subjectivity; one transcript revealed to the jury
that the child being interviewed had made a gesture indicating masturbation.
The child had reached for a drink bottle. The mood of
Christchurch at the time could hardly have been more fertile for a mass
sexual abuse claim to be lit. The police had recently abandoned their
extensive and costly investigation into the mythical Great Christchurch Child
Pornography Ring, and must have felt like a group of yeti-hunters who had
returned empty-handed after years of searching. There was a chill in the air
at the time, a misguided but overwhelmingly accepted sentiment that crouching
behind every mulberry bush was a paedophile who had somehow eluded justice. Such was the mood, that
anyone who so much as expressed concern or caution over the runaway
allegations was pilloried as being an advocate of paedophilia. Creche parents
who privately supported Ellis were afraid to testify. One forensic
psychologist who agreed to testify for the defence pulled out when he
received a sinister call from an official in the Ministry of Justice warning
him that such a move would destroy his career. As will be explored later,
this was merely an early taste of the Justice Ministry’s determined meddling
in the case. The accepted belief at
the time was that children do not lie about sexual abuse. “Believe in and the children” was
chanted like a mantra. However, children were not believed when they claimed
not to have been abused. They were said to be in denial, supposedly a
giveaway symptom of sexual abuse. As such, whether a child made allegations of
sexual abuse or did not, their response would always seem to point to sexual
abuse. As mentioned, none of
the children made allegations in their first evidential interviews. If Ellis'
accusers had “believed the children”, there would never have been a need for
further interviews, and the whole thing would never have happened.
Furthermore, “experts” stipulated that sexual abusers always deny their
claims. As such, Ellis’s unwavering denial of his guilt was, conveniently for
his accusers, seen as an indication that he was an irredeemable paedophile in
the grips of denial. Detective Colin Eade
led the investigation with Terminator-like determination, and much has been
made of the conduct of himself and many of his colleagues. An internal police
investigation conceded that Eade had not always been entirely objective, but
nonetheless concluded that the investigation was of an acceptable standard.
This makes one wonder just how low the bar is set for police conduct, as the
police’s conduct towards Ellis bordered on blatant persecution. Before and throughout
the investigation, Eade had been beset with psychological problems and had
grappled with thoughts of suicide. He had affairs with one of the social
workers involved in the case and two of the parents of complainant children.
Nonetheless, his Caligula-esque libido was seemingly unquenched; the mother
of the first child to make a formal allegation pulled her child out of the
investigation after Eade propositioned her after a night of heavy drinking.
His colleagues also seemed plagued with an absence of objectivity; his
colleague, Detective Jenkins, told a parent who refused to be involved in the
witch hunt that “if you don’t co-operate with us, you must be a child
abuser”. At the trial, members of
the jury neglected to declare various associations with people involved in
the case. The foreman was the celebrant at Crown Prosecutor Brent Stanaway’s
wedding. Another jury member had had a lesbian relationship with a mother of
a complainant child. A third jury member was witnessed stating her belief in
Ellis’ guilt midway through the trial in a public place. A fourth was alleged
to have sought counseling after finding one of the child complainants
sexually attractive. Expert witness Karen
Zelas was the linchpin for the prosecution in a case devoid of any
corroborative evidence whatsoever. Karen Zelas’s professional reputation has
been left in tatters by her involvement in the Peter Ellis case, but how she
came into the case with any credibility to start with beggars belief; she had
already been instrumental in the misdiagnosis of sexual abuse at the child
psychiatric ward of Christchurch Hospital (Ward 24) and the Glenelg Health
Camp, cases that shattered the lives of children and broke up their families.
During the case, Zelas gave evidence for the crown, advised the police,
trained and supervised the interviewers, counselled many of the witnesses,
and gave advice to the judge on how to question child witnesses. When Ellis’s
defence later raised this in the Court of Appeal, it was ruled that Zelas had
no conflict of interest. In a revealing moment
early in the trial, Zelas was questioned by the defence about the Holmes
interview that she had partaken in during the early moments of the case, an
interview that helped stir the pot of sexual abuse hysteria in the region. To
an incredulous defence, Zelas denied, under oath, ever having taken part in
such an interview. In a case that single-handedly hinged on the reliability
of memory, Zelas’s extraordinary episode of amnesia was an ominous omen. With
due respect to Paul Holmes, some would argue that Zelas may have repressed
such a memory. What seems more likely, however, was that Zelas was
suspiciously selective about what evidence she disclosed, as further evident
in her testimony under Section 23G, 2 C of the Evidence Act. This section enables
expert witnesses to give evidence in the form of their confirmation that
certain behaviours are consistent with being a victim of sexual abuse. The
catch is, there is no behaviour that is inconsistent with sexual abuse, as
there is no behaviour that necessarily excludes sexual abuse. Eating with
one’s mouth full is consistent with sexual abuse. So is farting. Essentially,
giving evidence under the section is absolutely pointless. Nonetheless, Zelas
was more than happy to indulge the prosecution in exploiting this absurd
piece of legislation, reeling off a confounding spectrum of behaviours as
“consistent with” sexual abuse.In the Defence witness Keith Le Page justifiably
attempted to testify that other causes could be responsible for such
behaviour. He was consequently reproached by the judge; under Section 23G,
you are only allowed to talk about behaviours consistent with sexual abuse.
You are not permitted to give evidence that these behaviours are also
consistent with other forms of stress. Section 23G has since been effectively
disregarded as legislation by the Court of Appeal, as will be discussed
later. In the absence of any
corroboration of evidence such as witnesses, physical signs of abuse, and
child complainants returning home from the creche in a distressed or soiled
state at the time of the alleged abuse, the case hinged on the credibility of
the children’s evidence. In order to make the evidence as believable as
possible, the prosecution culled from the charges the children’s more
fantastical claims, including cages, tunnels, trapdoors, surgery, mutilated
corpses, murder and exploding children. When the defence attempted to show
videotapes in which the children made such claims, the judge prevented them,
ruling the evidence inadmissable as it did not pertain to the charges. As
such, the credibility of the children’s testimony in the eyes of the jury was
distorted as they never saw the extent of the children’s unbridled
imagination. “That’s the problem with filleting the evidence,” says New
Zealand Law Journal editor Bernard Robertson. “Normally in a criminal trial
the defence are given great latitude…because they’re afraid of the conviction
being overturned on appeal. But in this case it was quite the opposite.” Four people who would
have been crucial witnesses for the defence were his colleagues at the Crèche
who had worked closely with him for years. However, as the allegations spun
out of control, four women crèche workers were charged with sexual abuse
pertaining to “the circle incident”, an alleged incident at an unknown
location with further unidentified participants that seemed to resemble
satanic ritual. The charges were thrown out due to lack of evidence, yet
incredibly, on the same evidential basis, Ellis was convicted on charges
relating to the same incident. When the women testified on Ellis’s behalf,
the judge told the jury that their evidence was not impartial, as they had a
stake in the matter. It seemed like a stroke of genius from the prosecution;
to taint the testimony of the defence’s most convincing witnesses by accusing
them of the same crimes as the defendant. Given the way the odds
had been stacked against Ellis, it was surprising that he was only convicted
of sixteen of twenty-eight charges. The jury’s criteria for a guilty count
appeared to be to convict Ellis on the counts that seemed the most
believable, which vindicated the prosecution’s strategy of sanitising the
most outrageous claims. It seemed to be of little concern to the jury that
regardless of whether the charge was credible or outlandish, they all had the
same amount of corroborating evidence: none whatsoever. There was no more
proof that Ellis had anally interfered with a child than there was that he
killed children with axes. Ellis was sentenced to
ten years in prison, of which he served seven years. Interestingly, in prison
he was well treated and respected by fellow inmates, and did not get “the
treatment” normally brutally meted out to convicted child abusers. Many have
pointed to this as yet another indicator of Ellis’s innocence. But
well-treated or not, Ellis’s life had been destroyed. It was a judicial
travesty that made a mockery of the concepts of fair trial and reasonable
doubt. Thirteen years on, the Ministry of Justice continues to deny that it
screwed up royally, and Ellis maintains his innocence.
After interviewing Tim
Barnett for half an hour, I’m none the wiser as to Ellis’ prospects of
vindication. I’m here in his office to get to the bottom of why the Justice
and Electoral Select Committee have taken nearly two years to answer one
question: Do the problems with Peter Ellis’ conviction for sexual abuse
warrant a Commission of Inquiry? It was the MP’s namesake, Sir Barnett Cocks
who said, “A committee is a cul-de-sac down which ideas are lured then
quietly strangled.” For all the committee’s best efforts, Ellis was never
holding his breath in the first place. Tim Barnett is the
committee chairman. His reason for the lengthy delay is straightforward. “The
committee’s been really busy…when you’re only allowed to meet only three
hours a week then you’re pretty stuffed.” He is realistic about the limited
power the committee has, that whatever decision the committee eventually
reach, it is not a binding judgment. “All we can do is make recommendations
to the Government…we could decide that the earth was a great big ice-cream
and should be licked, but it wouldn’t make any difference.” Nonetheless, he
insists the Government is not trying to bury the case. “I think anything
that’s buried in the contemporary environment has the ability to dig itself
back out again,” he says. However, upon broaching the hypothetical topic of
Peter Ellis getting a pardon, his response suggests the process has barely
started. “That’ll be three stages from now. There would be a select committee
recommendation that some kind of process be set up to examine the case…and
that process would have some ability to basically refer things back to the
courts, and then…” At that point, I kind of got the picture. If the select committee
has not reached a decision by the time of the election, the implications
could be catastrophic for Ellis. A new-look Government would necessitate a
new committee, essentially dragging the two-year proceedings back to square
one. Barnett says they aim to be finished by then, but when pressed for an
assurance, he is evasive. One cannot help but wonder if such a setback to the
committee process is exactly what the Government is counting on. It has been thirteen
years since Ellis’ conviction, and thirteen years of lengthy and convoluted
processes have yielded only foregone conclusions. The first of his two
appeals, in 1994, was precipitated by the retraction of allegations by the
oldest and most believable child witness. This should have been the domino
that toppled the less credible charges of the other children. However, the
Court of Appeal only quashed the charges relating to that child, and then
suggested the girl was in denial. Again, the oft-touted slogan of “believe
the children” only applied when a child was making accusations. The 1999 appeal did not
arrive until a year out from Ellis’ jail sentence ending, and it too was sent
packing. For the appeal, the Ministry of Justice commissioned retired judge
Sir Thomas Thorp to look into the case. Thorp’s ensuing report expressed many
grave concerns, stating, “It would in my view be difficult to argue against
the existence of a serious doubt about the safety of Ellis’ convictions.”
Justice Minister Phil Goff, who refused to speak to us for this article,
denied that the report was suppressed, even though it was not made publicly
available until an outcry from Ellis supporters years later. It is interesting to
note that when Phil Goff was in the Opposition he was only too eager to lend
his voice to the outcry. In 1995 he wrote to a family and told them he
believed a full enquiry should be held. In 1997 he expressed concern about
the evidence of bizarre allegations against Ellis suppressed during the
trial, and attacked police conduct during the case. Now, given the
opportunity to put his money where his mouth is, he is falling over himself
to ensure a full inquiry never happens on his watch. When the 1999 Appeal
failed to put increasing public dissatisfaction about Ellis’ convictions to
rest, Goff appointed Sir Thomas Eichelbaum to conduct a Ministerial Inquiry
into the case. The inquiry was anything but “full”, and has been roundly
dismissed as a whitewash, predetermined by the documented meddling of the
furtive Ministry of Justice advisers who seem to have hypnotised Goff. Lynley
Hood, who criticized the inquiry at great length in A City Possessed, has no doubt as to its purpose. “Eichelbaum, in
my view, was put in to rubberstamp what had gone before without actually
looking at it.” Bernard Robertson agrees. “The Eichelbaum Inquiry has been
rubbished by everyone who examines it seriously,” he says. The inquiry’s terms of
reference were narrow, barely scraping the surface of the litany of problems
with Ellis’ conviction. Goff did not ask Eichelbaum to look into issues
surrounding police conduct and the suppression of evidence in court, despite
the fact that when he was in Opposition, he was calling for a full inquiry
over these very concerns. Many would argue that, as such, Phil Goff
instructed Sir Thomas Eichelbaum to miss the whole point of conducting such
an inquiry. Goff said that the
reasons for conducting a Ministerial Inquiry, rather than a much more
thorough Commission of Inquiry, were because it would be cheaper, speedier,
and less stressful for the complainant families. “Cheaper” and “Speedier”
meant Ellis’ fate lay at the mercy of expedience. The Government couldn’t
wash their hands of it soon enough. Ellis was an irritation, not a worthy
cause. As for “less stressful
for the complainant families”, this is just bullshit, an emotive red herring
that trivializes the stress that has ultimately driven Ellis’ heart to
cardiac arrest. However, it seems that this issue continues to be raised, and
it has been hanging over the select committee on the basis of misconceptions.
Both Lynley Hood and Bernard Robertson point to committee member and NZ First
MP Dail Jones as being less than receptive. “Some members of the select committee
like Dail Jones seem to have this idea that if there’s a Commission of
Inquiry that it necessarily involves the children being presumably dragged
through this whole thing again,” says Robertson. “It's nonsense. There's no
reason for the alleged victims to appear before the commission at all because
it's not a retrial. The question is whether he should have been convicted on
the evidence given at the trial.” In opting for the quick
fix of a Ministerial Inquiry, Goff had ignored the recommendation of a Commission
of Inquiry that the Court of Appeal made no less than four times in 1999. By
making the terms of reference so narrow, he was showing a staggering lack of
foresight. Regardless of what the Inquiry arrived at, the result was always
going to spark a chorus of disapproval. Had it fallen Ellis’ way and
recommended a pardon, Ellis’ opponents would have been apoplectic that a
convicted paedophile be exonerated based on such a narrow scope of inquiry.
And when it inevitably ruled against him, it became clear the whole inquiry
had been a false gesture. Ellis had used up another of his lives. Crudely
put, the Eichelbaum inquiry amounted to the Justice Minister denying the
existence of a pile of dog shit by spraying it with air freshener. As Goff might well have
predicted, Ellis’ supporters were hardly going to accept his assertion that
the matter was now a closed book. They were convinced the Government was
indulging in a cover-up. Late in 2001, Lynley Hood released her acclaimed and
exhaustive critique of the case, A City
Possessed, which set in motion a rolling stone of support and public
disquiet. Rather than being put to sleep, the Ellis case gathered momentum.
Goff insisted that, for a Commission of Inquiry, new evidence would have to
be brought forward. Bringing in new evidence to prove that Ellis’ conviction
was a sham is like disproving the existence of ghosts. Ellis should never
have been convicted, because there was never any evidence to begin with. “You don’t actually
need new evidence to have a Royal Commission,” says National MP Katherine
Rich. “We didn’t have new evidence on GE…if [Phil Goff] wants to, he can
arrange that commission.” Maryanne Garry, a psychology lecturer at Victoria
University and leading memory researcher, contends that improved research
into the suggestibility of children and advances in interviewing best
practice represents new evidence in itself. “There are…things that people
didn’t know that we know now…this is what I told the select committee: we
went around slapping asbestos in homes thinking that it was great insulation,
does that mean we should leave asbestos in homes? No!” Goff remained as
obstinate as a blind mule. His bullshit was wearing thin on a public
overwhelmed by the devastating been in and now increasingly
sympathetic toward Ellis, who was still being branded New Zealand’s worst
child molester three years after his release from prison. Upon reading Hood’s
book, National MPs Don Brash and Katherine Rich began a personal crusade to
renew calls for a Commission of Inquiry. In September 2003, Brash and Rich
presented Goff with a petition signed by a hundred and seventy-seven
prominent New Zealanders, including former Labour Prime Minister David Lange,
retired judge Sir Thomas Greig, and MPs from every political party in
Parliament. Two Labour MPs, Georgina Beyer and David Parker, were among the
signatories from the Government, but pressure from the Labour party whips
prevented more from signing it. Realising the matter was not going to die a
quiet death, Goff put the case to the select committee. And, nearly two years
later, here I am in Tim Barnett’s office, hearing about the world being a
giant ice-cream.
The extraordinary
length of time the committee has taken could be seen as a blessing in
disguise for Peter Ellis. Late last year, a Court of Appeal decision
effectively ruled that Section 23G 2c of the Evidence Act redundant. (Though
it has not been legally rescinded.) It was under 23G 2c
that, in Ellis’ 1992 trial, expert witness Karen Zelas was allowed to present
damning testimony that a boundless range of behaviours exhibited by children
were consistent with sexual abuse. Zelas’ testimony was an evidentiary fig
leaf for a case devoid of corroboration supporting the allegations. If the
justice system had recognised back then that Section 23G was a load of
nonsense, then there is every likelihood her evidence would have been
disallowed and Ellis would never have been convicted. Section 23G was
introduced as an amendment to the Act in 1989 on the sly by the Labour
Government to placate lobbying from child protectionists and sexual abuse law
reformists. Section 23G 2C allows clinical psychologists to give superfluous
and scientifically baseless evidence about what behaviours are consistent
with sexual abuse, despite the fact that, as discussed earlier, no behaviours
are actually inconsistent with sexual abuse. The law invites blatantly
misleading testimony. “The problem is they’re (the jury) being bamboozled by
all this so-called expert evidence,” says Robertson. “When ordinary people
hear ‘consistent’ they think they’re hearing ‘supports.’” Another major anomaly
with the broader aspects of 23G is that it allows clinical psychologists to
give evidence, but not academic psychologists. This means therapists can present
baseless supposition as factual evidence, while experts are prevented from
presenting evidence that has passed the test of scientific scrutiny. As
Robertson explains, studying sexual abuse in a controlled environment is
difficult, and reliable research is scarce. “You can’t have control groups;
you can’t divide children into two groups and then abuse some of them. So the
reasoning is very, very shaky.” Section 23G is
confirmation for academic psychologists such as Maryanne Garry that scientists
are being marginalised by lawmakers and the agencies and officials who advise
them. Sexual abuse lobbyists and the child protection movement have long
regarded the scientific community as an enemy of their agenda, and studies
that demonstrate the fallibility of memory, the suggestibility of children,
and the obvious fallacy of ritual abuse claims are often greeted with
outright hostility. Scientists are accused of undermining the fight against
sexual abuse and belittling the harm it does, and groups active within
Government agencies have been successful in ensuring the inconvenience of
scientific argument does not hinder their cause. “The (clinical)
psychologists do seem to form quite a lobby,” says Robertson. “I saw them
demonstrating outside Parliament the other day with placards saying ‘Clinical
psychologists assess risk’ when, actually, controlled studies show that
clinical psychologists are no better at assessing risk than high school
children and secretaries.” The legal system’s bias
towards therapists as expert witnesses over scientists is a never-ending
source of frustration for Garry. “They’re presenting their views as an
equally reasonable and valid form on enquiry. These are people who confuse
feelings with facts, you know, an ideology with reality…they say “scientists
have more privileged knowledge”, but in fact, science knows things because
that is what science is”. Robertson agrees, and
indicates that moves to give scientists a larger role in expert testimony
have hit a wall. “You can only give evidence if you're a clinical
psychologist. It’s nonsense with no theoretical basis and the Law
Commission’s draft of the Evidence Code is a slight improvement in that it
removes the need for the witness to be a clinical psychologist.” It appears,
with almost a sense of inevitability, that such an apparent forward step in
legislation has again fallen victim to the obfuscation of the Ministry of
Justice, as Robertson goes on to describe. “This is the bill that has been
around that the Justice Minister seems unable to get into Parliament. It's
been hanging around for years now and every year for the last five years
we've been told next year, and every month for the last year we've been told
next month, and then it just vanished.” Concerns over 23G are
not new. A 1996 Law Commission discussion paper proposed repealing it, but
this seems to have been shelved without explanation. Three years ago, Chief
Legal Counsel Val Sim again indicated plans to repeal the section. Three
years after that, the Ministry’s silence is deafening. Given that the
amendment is fundamentally flawed, one can surmise that the Ministry of
Justice has kowtowed to pressure from the lobby groups. Phil Goff has stated
that he received Ministry of Justice advice that the Court of Appeal decision
to disregard 23G does not apply retrospectively. Bernard Robertson disagrees.
“Somehow, the Minister of Justice's advisers were able to tell him that that
[The Court’s ruling] only applies to the facts of that particular case, [but
it’s also] saying all previous cases where the evidence wasn't given in this
way, there has been a miscarriage of justice...he was given duff advice by
this staff, who are not held in high regard by the rest of the legal
profession to put it mildly. It’s quite clear that certain people in the
Justice Ministry have a vested interest in blocking this off.” For Goff to refuse to
review historic court decisions based on advice from the Ministry of Justice
is a convenient ruse, and no one would know this better than Goff himself. In
the Ministry of Justice’s response to the 2003 petition calling for a
Commission of Inquiry, which was duly presented to Goff, Val Sim wrote,
“Ministry of Justice Officials considering applications for the exercise of
the Royal prerogative have a vested interest in protecting the decisions
reached by the courts from proper inquiry.” There, from the horse’s
mouth, is confirmation that the justice system is not designed to
self-correct. Essentially, it is their job to stonewall and obstruct reviews
of disputed cases, a job they have proved extremely adept at doing. Applying
the Court of Appeal’s judgment on Section 23G retrospectively would throw
hundreds of historic court judgments into doubt – judgments Phil Goff’s
advisers are assigned to protect. To maintain any semblance of credibility,
Goff would need to take advice on the matter from an independent expert. As
far as Robertson is concerned, there is only one appropriate course of action
to take. “Logic and principle says that, given that Court of Appeal decision,
every case in which evidence has been given under Sections 23G 2c should be
reviewed.” By using the Ministry’s advice as the last word on the matter,
Phil Goff is casting himself as either a gullible figurehead or a calculating
buck-passer. * * * So whilst the Court of
Appeal’s decision regarding 23G has presented a glimmer of hope for the Peter
Ellis campaign, things do not look quite so rosy once one realises how the
system works. Re-examining the Ellis case in light of the Court Of Appeal’s
decision would most likely be seen as setting a precedent, requiring any case
in which evidence was given under 23G to be dredged up again. Of course, the
mere prospect of being forced to review hundreds of sexual convictions would
give Ministry of Justice officials nightmares. Fortunately for them, and
unfortunately for Peter Ellis, they have a Minister willfully complicit in
their cause, which essentially extends to little more than covering their own
arses. Even if the select
committee do eventually make a recommendation, it is a leap of faith to
expect that Phil Goff will act on it. So far, the only recommendations Phil
Goff seems prepared to follow are from the mysterious Ministry officials who
seem permanently perched at his ear. He ignored the reservations Sir Thomas
Thorp expressed in 1999 about the case. And, had he chosen to take on board
the suggestions made in the judgment from the second of Ellis’ appeals, he
would have appointed a Royal Commission of Inquiry six years ago. Katherine Rich
certainly sympathises with Ellis supporters’ frustration over the
smoke-and-mirrors inner workings of the Ministry of Justice. Recently, she
requested some documents from a Ministry report to Phil Goff about the Ellis
case, only to find that a sentence had been blanked out. Rich went to the
Ombudsman, who forced the Ministry to hand over the documents uncensored. The
sentence reads as follows: “It has to be acknowledged, however, that such an inquiry
is unlikely to arrive at the truth and, whatever its findings, may fail to
satisfy current public doubts.” With the words
“unlikely to arrive at the truth”, the Ministry is acknowledging that this is
essentially an open-ended case and, for thirteen years, it has seemed
determined to keep it that way. “It’s a difficult
situation for the Government,” says a disillusioned Rich, “Because there are
a number of people within the sex abuse sector who have a vested interest in
maintaining this idea that thousands of children are abused and all men are
potential child molesters.” Rich’s comments make it suddenly apparent that
the words “vested interest” seem to be a recurring theme in the Peter Ellis
wrangle. Regrettably, the words never seem to be used in reference to the
Government, the justice system, or its associated agencies having any vested
interest in justice being served. “We’re all supposed to
believe that the legal system’s perfect,” Rich says. “It will have to accept
that certain parts of the public sector were not perfect in handling the
case, but who cares? The guy’s been in prison for how many years, are we
supposed to close our eyes and accept that he’s an acceptable casualty for a
legal system that sometimes stuffs up? I don’t think so.” It appears that
virtually the only people who continue to dispute Peter Ellis’ innocence are
those who have a stake in the matter, and that Ellis will remain, at least
for the foreseeable future, a martyr denied redemption by a system too proud
to admit its own mistakes. New Zealand must refuse to forget this travesty of
justice, and hope that that very system will, if not admit to them, at least
learn from its mistakes. Right from the very beginning Peter Ellis has
maintained his innocence, only to be told he’s “in denial”. It is, in fact,
the New Zealand Government that is in denial. It’s time for some
soul-searching. |
