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New Zealand’s gravest miscarriage
of justice since the Thomas case is undoubtedly the 1993 conviction of
daycare worker Peter Ellis on 16 charges of molesting children at the
Christchurch Civic Creche. Since the trial, the evidence has become
overwhelming that no children were abused at the Civic by Ellis, any of his
co-workers, or anyone else. The belief that abuse happened was created by
parental hysteria, fuelled by the actions of social workers and the police
who were motivated by the conviction they were on to a case like the many
equally notorious, and just as fanciful, “satanic abuse” trials that saw
dozens of innocent American daycare workers jailed in the 1980s. Peter Ellis was released from
prison in 2000 after serving the full non-parole term of the 10-year
sentence, imposed on him by Justice Neil Williamson in 1993 after a farce of a
trial in which the judge made more than 200 rulings preventing the defence
from presenting evidence that would have shown how the fallacious, bizarre
charges came about. By the time he was released, many
lawyers, judges, police and politicians had reached the conclusion the case
was a crock. One of them was then Justice Minister Phil Goff, who since his
Opposition days had been promising a commission
of inquiry into the case. A month after Ellis was released, Goff announced
the appointment of former chief justice Sir Thomas Eichelbaum to conduct a
very limited ministerial inquiry
into narrow aspects of the evidence and interviewing of the Civic children. Eichelbaum, after ignoring the
mountain of evidence that nothing happened at the Civic as assiduously as
Williamson had kept it from the jury, issued a whitewash of a report in 2001
that alleged Ellis had failed by a country mile to prove his innocence and
would he please now go away. I have long wondered how Goff was
nobbled in his desire to see justice prevail in this case, and how Eichelbaum
could have conducted such a pathetic inquiry. After all, another eminent
jurist, Justice Sir Thomas Thorp, had earlier found, in a report leaked the
week after Eichelbaum’s travesty was published, that the evidence in the
Civic case was so suspect there was a serious risk of a miscarriage of
justice. Now I have found the answer, or at
least a good part of it. In two fascinating articles
in the New Zealand Law Journal, independent Wellington researcher Ross
Francis has obtained and analysed the paper trail of the behind-the-scenes
activities of the Justice Ministry officials who advised not only Goff but
also Eichelbaum. I commend these lucid articles to
everyone who is interested in the fair and impartial administration of
justice in this country. Part two in particular, beginning
on page 439, lays the inquiry bare. It begins by revealing Eichelbaum had a
close working relationship with Justice Williamson, something I hadn’t known,
describing him as “a model judge” who “conducted many of the most difficult
trials of the time.” Williamson, who died in 1996, was also the presiding
judge at the David Bain trial. But the two big issues that jump
out of Francis’s article are the pivotal role of Justice official Val Sim
behind the scenes in the Ellis case, and the highly questionable appointment
of Canadian “expert” Louise Sas as an adviser to Eichelbaum in the inquiry. Sim is revealed by Francis as
working quietly within the ministry over a number of years, advising other
officials, judges and politicians not to grant Ellis a pardon and not to
allow a full commission of inquiry into the case. She is now a law
commissioner. Early on in the inquiry process,
Eichelbaum rejected a request by Ellis’s lawyer to engage one of the world’s
foremost experts on the interviewing of children, Stephen Ceci of Cornell
University, New York State, as an adviser. Sir Thomas Thorp’s report had
suggested using Ceci to review the evidence. Francis reveals that Eichelbaum
asked Sim whether the Thorp Report was covered by his terms of reference.
“Sim was uncertain,” Francis writes. “She considered that because the report
was not publicly available, the ‘safest course’ was to discount it.” Eichelbaum
did. Francis adds that the Thorp Report should have been required reading for
Eichelbaum and his advisers. Sim also urged Eichelbaum to
discount any expert who had a “close publishing association” with Ceci, and
thought Eichelbaum could be helped by American law professor Thomas Lyon, who
was a critic of Ceci. Lyon, however, was unable to take on the role of
adviser to Eichelbaum. Instead, someone Eichelbaum turned
to was Sas, a psychologist who had written not one peer-reviewed article on
such relevant issues as child suggestability or memory, but had conducted
research into an alleged “multi-victim, multi-offender” case known as Project
Guardian, regarded by many Canadians as an anti-gay witch-hunt. Sas was also
the prosecution “expert” in an abuse case of so little veracity that the
judge dismissed it. The defence lawyer noted that Sas “can interpret every
fact and every behaviour as evidence of abuse.” That Canadian comment is eerily
similar to the defence remark during the 1993 Ellis trial that Christchurch
psychiatrist Karen Zelas, the Crown’s chief expert witness, was able to claim
that any behaviour by a child was consistent with sexual abuse, an impossible
position that greatly harmed Ellis’s defence. None of the officials Francis questioned
during his research was able to tell him how Sas came to be employed as an
advisor to Eichelbaum when other, far more qualified people were rejected or
not considered. However, he does reveal that
Waikato law lecturer Wendy Ball, an academic so in the anti-Ellis camp that
she acted as the spokeswoman for some of the complainant Civic families in
the 1990s, attended with Sas and spoke about the Civic case at a 1997 family
violence workshop in Canada. Naturally, Sas told Eichelbaum
Ellis was clearly guilty and there was nothing wrong with the way the Civic
children were interviewed to get the lurid allegations against him. This was
despite the fact not one child spontaneously complained about abuse and that
the allegations only followed hours, days, weeks and, in one spectacular
instance, months of parental interrogation and the constant swapping of
rumour, fear and fiction between parents The Eichelbaum inquiry was the one
chance and the appallingly missed opportunity to introduce justice to the
Civic case. Ross Francis is to be commended for the diligent work that has
laid bare the details of why it failed. All is not quite lost, however.
Ellis’s lawyer, Judith Ablett-Kerr, QC, is preparing an appeal to the Privy
Council. Cases dealt with before New Zealand replaced that body with our own
Supreme Court in 2004 can still be heard by the London law lords. While the Privy Council has only
rarely agreed to hear an appeal in a New Zealand criminal case, its
intervention in the Bain case gives Ellis significant hope. This is because
the fundamental point the law lords made in the Bain case – while making no
comment on Bain’s guilt or innocence – was that it was for a jury, not
judges, to consider all the evidence and bring down a verdict. The jury in the Ellis case was
prevented by Justice Williamson from hearing volumes of evidence that would
have cast serious doubt on the prosecution case. Williamson’s decisions to
let the jurors hear only what the prosecution wanted them to hear were upheld
by our Court of Appeal. If the Privy Council upholds its
Bain case jury principle when Ellis goes before it, the only possible outcome
is the ordering of a new trial for Peter Ellis in which a new jury would for
the first time hear all the evidence. While justice delayed is justice
denied, justice is also never too late. |
