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The
Christchurch Civic Creche Case |
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Select committees
usually tackle matters such as this petition when all legal avenues have been
exhausted. While recognising the extensive legal journey already taken by
Peter Ellis, we identified the following avenues which at least potentially
remain open to him: ·
•An appeal to the Privy Council or Supreme Court. ·
•A civil action under the New Zealand Bill of Rights Act
1990 to show that due process had not been followed in his trial and appeals. ·
•An action to challenge the admissibility of the
videotaped evidence on the basis that regulations governing the qualification
of interviewers and the obtaining of the children's consent had not been
made. The committee wrote to
Judith Ablett-Kerr, QC, on March 22, 2005, with a follow-up letter on May 12,
2006, to ask whether these options had been considered by Mr Ellis. No reply
on these matters was received. We regret this. During the latter stage
of this inquiry the committee received a letter from Judith Ablett-Kerr, QC,
reading in part as follows: Both, RvA (CA 123/04,
16 December 2004) and another recent case authority give cause to believe
that it would be appropriate to pursue an application for leave to appeal to
the Privy Council. In the past Mr Ellis
and his mother have been adamant that his case should be resolved in New
Zealand by the New Zealand Criminal Justice system, where the problem arose.
Mr Ellis has now been driven to the view that in order to resolve the issues
that have so heavily burdened his life for the last 14 years he may need to
place the matter in the hands of the Privy Council. Given the length of
time since Mr Ellis' unsuccessful second appeal and the change of legislation
which has terminated the rights of post 2003 intended applicants to pursue an
appeal at the Privy Council it is unlikely that such an application would be
well received other than in special circumstances. The committee
considered whether meeting this request would involve it in a "legal
process" and was minded of the usual rules of comity between the courts
and Parliament. However, the committee
does not regard a recommendation to the Attorney-General in this regard as
being part of the legal process. Indeed, neither is the Attorney-General's
instruction to the Solicitor-General a part of the legal process. Instead it
is in effect the relationship between client and lawyer. The committee
recommends that the Attorney-General does not oppose the application to the
Privy Council; and that the Legal Services Agency provide legal aid for this
process. It does so mindful of the cumulative effect of the following: ·
The failure of Mr Ellis to have counsel of choice even
though no complaint is made as to the way trial counsel conducted this trial. ·
The practice of including essentially unrelated
allegations involving separate complainants in one indictment based on
administrative convenience. ·
Current developments in the interviewing of child
complainants by police and the taking of evidential videos; modem practice
being substantially refined from that in Mr Ellis' situation. ·
The apparently contradictory decision to exclude the
charges against co-workers who were charged as parties to some of Mr Ellis'
offending. ·
The continuing debate on the reliability of children's
memory, and of children in giving evidence. ·
The considerable sense of public disquiet in this case
extending across the whole spectrum of New Zealand society. Miscarriages of justice
The preoccupation with
formal fairness — the consistent application of formal rules of trial and
the law — which is at the heart of the appeals process, coupled with the
view that matters of credibility are for the jury alone, ensures that some
matters of valid public concern are only addressed with great difficulty. In particular the
picture painted by the petitioner of a society in the midst of a mass
hysteria, leading to in her view an unjust conviction, is not susceptible to
normal inquiry by the appellate process. The committee cannot
resolve the matter and we do not think that it can be resolved today, even by
Royal Commission. We have to rely on the judicial process, but we do consider
that it may be useful to consider whether an extraordinary process to address
concerns not susceptible to normal appellate scrutiny. Bruce Squire, QC,
advised us that counsel |for Mr Ellis could have applied for a change of
venue on the basis of a prejudicial climate in Christchurch but this was not
made. The committee was unclear as to whether this option had been considered
by Mr Ellis. The committee noted that there is not a transparent process in
New Zealand for the examination of miscarriages of justice, in spite of
debate from time-to-time and in spite of developments in that direction in
the United Kingdom and other countries. While not stating that in its view a
miscarriage of justice occurred in this case, the committee is of the view
that the operation of the legal system in respect of this case did not
inspire adequate public confidence in the operation of the legal system. A
justice system should lead to certainty. In this case it seemed to increase
the sense of uncertainty. Currently claims of
miscarriage of justice are dealt with by way of application to the
Governor-General for the exercise of the Royal Prerogative of Mercy. That
prerogative is an important safeguard in our criminal justice system which
provides an avenue for convicted persons to petition the Governor General for
relief in cases where an injustice may have occurred. However, the system is
very lengthy and lacks adequate transparency. There has been an increase in
the number and complexity of applications for the Royal Prerogative of Mercy
over the last decade, with more than 60 applications since 1996. The committee
recommends reform of this system to include establishment of a Criminal Cases
Review Authority or equivalent to independently examine allegations of
miscarriages of justice. Such a move would: ·
Reinforce the constitutional separation between the power
of the Executive and the courts. ·
Reduce pressure on the resources of the Ministry of
Justice. ·
Enable the development of a centre of expertise on
examination of miscarriages of justice. ·
Be an appropriate response to the increasing complexity of
claims of miscarriage of justice. When a Commission of Inquiry is appropriate
The petitioners have
requested the establishment of a Royal Commission of Inquiry to inquire into
the investigation and legal processes relating to the Christchurch civic
creche case. A Commission of Inquiry
cannot exercise judicial functions, although it may have limited judicial
powers. A Commission of Inquiry cannot be convened to determine the guilt or
innocence of an individual as its primary purpose. Commissions may look into
offences, but only as part of a wider investigation into matters of conduct relevant
to the purpose for which the Commission has been established. The appointment of a
Royal Commission of Inquiry is a serious step. It may, however, be
appropriate where an event or situation is so unusual or serious that no
other approach will do. Reasons for establishing a Commission of Inquiry
would include the following: ·
Considerable public anxiety about a matter. ·
A major lapse in government performance. ·
Circumstances that are unique, with few or no precedents. ·
An issue that cannot be dealt with through the normal
machinery of government, or the criminal or civil courts. ·
An issue that is in an area too new, complex or
controversial for mature policy decisions to be taken. The committee
considered each of these criteria in turn in relation to this case.
There is clearly public
anxiety about the handling and outcome of this case. However, in isolation
this is exceeded by levels of public anxiety about many other matters. This
factor alone cannot justify a Royal Commission.
This matter is not
Government-related.
Although the
combination of circumstances in this case was remarkable, it did not involve
unique circumstances and there are precedents for all of its specific
elements.
Aspects of this
criterion are potentially present, but in essence the matters under dispute
are capable of being handled by the existing legal system, or legislative
reforms of that system.
This criterion does not
apply. Since the request for
an inquiry does not seem to adequately meet these criteria, the committee has
instead taken a more targeted and effective approach to the issues raised by
the case. These comprise: ·
Recommended improvements in the legal process. ·
Recommendations to the justice and electoral committee of
the next Parliament, which will be considering both the Evidence Bill and the
Legal Services Amendment Bill (No. 2). ·
A proposed new system for consideration of miscarriages of
justice. ·
A positive response to Judith Ablett-Kerr, QC’s, proposal
for committee comment in relation to a possible future appeal by Mr Ellis. We do not believe that
a Commission of Inquiry is relevant to many of these matters, and do believe
that the recommendations of our committee are, if accepted, likely to do much
more to improve standards of justice in our nation. Most of us also believe
that it is unlikely that a Royal Commission of Inquiry conducted in 2005
could be expected to reach a better view of the facts than was achieved in
1993, given the effect of the lapse of time on the availability and quality
of the evidence. We are also concerned about the potential impact on the
child complainants and their families who may be required to re-live their
experiences in giving evidence to an inquiry. We consider that they are
entitled to expect that if the formal legal process has found no miscarriage
of justice then that is the end of the matter.
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