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Ross Francis Wellington. 1. I, Ross Francis, am an independent
researcher. I have recently published, in the New Zealand Law Journal, a two-part paper entitled “New evidence
in the Peter Ellis case”. I have attached a copy for your convenience. My submission in regards to a
proposed Public Inquiries Act is based largely on my research into the Peter
Ellis case. There are a number of issues pertaining to the ministerial
inquiry into the Ellis case which I will discuss briefly. I will then briefly
explain how these issues relate to the proposed Act. 2. Part One of my research into the
Ellis case (NZLJ [2007] 393) explores the expert opinion evidence. The Court
of Appeal was unable to pass judgment on that evidence, which was, the Court
argued, within the scope of, and worthy of consideration by, a commission of
inquiry. 3. As explained in Part Two (NZLJ
[2007] 439), Cabinet decided to establish a ministerial inquiry in preference
to a wide-ranging inquiry. This inquiry did not come out of a vacuum. Leading
experts such as Michael Lamb and Stephen Ceci had expressed concerns about
the validity of the complainants’ evidence. Leading suggestibility researcher
Maggie Bruck supported Lamb’s opinion. In 1997, Barry Parsonson carried out a
thorough review of the complainants’ evidence. His conclusion, according to
the Justice Ministry, was “capable of raising serious doubt about the
reliability of the complainant’s (sic) evidence”. Retired High Court Judge
Sir Thomas Thorp reviewed the case for the Justice Ministry prior to Ellis’
second appeal hearing. In his report of March 1999, he expressed concerns
with some of the evidence which was used to convict Ellis. In the circumstances, the
ministerial inquiry, which was established in March 2000, should have laid
the above concerns to rest. It failed to do so. Sir Thomas Thorp has recently
noted that my research “must add to concerns expressed previously that [the
Ellis] case may have gone awry” (NZ Herald, January 12, 2008). 4. Why didn’t the ministerial inquiry lay the
case to rest? First, the then Minister of
Justice, Phil Goff, appointed Sir Thomas Eichelbaum to head the inquiry. Sir
Thomas had had a close working relationship with Justice Neil Williamson, who
died in 1996. Sir Thomas said, in 1997, that he had had the “greatest
admiration” for Williamson J, who Sir Thomas described as a “model judge”. In
addition, Williamson J (according to Sir Thomas) “conducted many of the most
difficult trials of his time, and did so impeccably”. Williamson J presided
at Peter Ellis’ trial and declared that he agreed with the jury’s (guilty)
verdicts. Officials recommended to Goff
that Sir Thomas head the ministerial inquiry. They have confirmed, in private
correspondence, that they did not consider anyone other than Sir Thomas for
that position. 5. Second,
Justice Ministry officials Val Sim and Michael Petherick proffered advice to
Sir Thomas on all aspects of his inquiry. Sim and Petherick were familiar
with the Peter Ellis case. Sim, for example, had: ·
asserted that the prosecution’s case had been “rigorously
tested” ·
twice recommended that Ellis not be pardoned ·
recommended that a commission of inquiry not be held into
the case ·
expressed concern for the “personal reputations” of the
children’s interviewers, the complainants and their families but not the
creche workers or their families. It is difficult to understand,
given the circumstances, why Val Sim did not recuse herself from taking any
part in Sir Thomas’ inquiry. It is also difficult to understand why the
Justice Ministry did not advise the minister that in the interests of
justice, the ministry should not be involved in Sir Thomas’ inquiry. 6. Third,
the then Attorney-General, Margaret Wilson, supplied Cabinet with advice
prior to its decision as to what, if any, inquiry should be established. Much
of Wilson’s advice was factually incorrect. Wilson argued that there should
be no inquiry into the case. This advice possibly dissuaded Cabinet from
opting for a commission of inquiry. Her advice was improper and, in this
writer’s opinion, went well beyond the scope of her position (not to mention
her expertise). She failed to clearly articulate why an inquiry should not be
established. Her main objections were that finality was an overriding
principle, and an inquiry would raise doubts about the criminal justice
system. Neither reason was compelling or cogent. 7. There
were other problems with Sir Thomas’ inquiry. Sir Thomas was aware that
Cabinet, when deciding whether to establish an inquiry, had been advised that
about six experts would probably be hired to advise on the complainants’
evidence. Though there was nothing to prevent him from selecting six (or
more) experts, he chose only two. One of his selections, Louise Sas, was
highly controversial. None of the parties to the inquiry nominated Sas. In
addition, she had published no research into child suggestibility,
investigative interviewing of child victims, or memory. Each of these areas
is crucial to fully understanding the case. Despite Sas’ less than impressive
credentials, Sir Thomas was led to believe that Sas had “high standing”. 8. Before
selecting the experts, Sir Thomas wanted to know where they stood “in the
debate”. He rejected Stephen Ceci, one of the world’s leading experts on
children’s testimony, because of Ceci’s “research direction” and “high
profile”. Ceci’s expertise, it seems, counted against him. His non-selection
had Val Sim’s support. Indeed, she advised Eichelbaum to “discount” Ceci.
However, in 1999, Sim advised the Secretary for Justice that she probably
would have sought Ceci’s formal opinion of the children’s evidence – a
recommendation made by Sir Thomas Thorp in his March 1999 review of the case
– if the Court of Appeal had not been seized of the case. In retrospect, and
given Sim’s later support for Eichelbaum’s non-selection of Ceci, that advice
seems to have been less than honest. More recently, the Justice Ministry’s
chief legal counsel has confirmed that the ministry has no intention of
obtaining Ceci’s formal opinion. 9. Surprisingly,
Sir Thomas watched the evidential interviews and read testimony from the trial
and depositions before he chose the experts. That possibly explains why he
asked officials where each candidate stood in the debate. Once he learnt
where the candidates stood, he must have had a good idea what the experts
were likely to say when they evaluated the complainants’ evidence. After
talking with Val Sim and Thomas Lyon, Sir Thomas possibly expected Louise Sas
to side with the complainants. Thus, it seems likely that Sir Thomas selected
Sas because he wanted support for his view that the complainants should be
believed. 10. The Justice Ministry appears to have
lost crucial documents pertaining to the ministerial inquiry. How these
documents could possibly go missing is a mystery that the ministry has been
unable to explain. 11. Sir Thomas appeared to know little
about child suggestibility and its potential effects. Although he observed
that the specialist interviewers asked the complainants suggestive and
leading questions – he also observed that the children were exposed to
parental contamination – he clearly believed that such questions had no
effect on the children’s reliability. His opinion is in stark contrast to
that of leading experts who have reported that such questions may have
adversely affected the reliability of the evidence. 12. Sir Thomas made a number of errors of
fact. For example, he claimed that the experts “reached the view that the
children’s evidence in the conviction cases was reliable”. Both experts did
not say that the children’s evidence was reliable. One expert was unable to
determine whether the children could be relied on. Graham Davies argued that
their age and the historic nature of their claims meant that they were unable
to provide: detailed and spontaneous accounts which are so useful from
the point of view of making judgements on reliability…we cannot and should
not expect a vivid and detailed account in these circumstances and nor in
general do we get one from any of the children. Sir Thomas argued that any
allegations arising out of the complainants’ later interviews generally did
not result in charges. The fact is that later interviews did lead to charges
and convictions. Nine of the sixteen counts on which Ellis was convicted came
from allegations elicited in later interviews. It is difficult to understand how
someone of Sir Thomas’ experience – he is a former Chief Justice – could make
such fundamental errors. The possibility exists that Sir Thomas was not
sufficiently competent to undertake an inquiry of such complexity, or that he
believed the case against Ellis was so weak that he needed to bolster his
findings, even if that meant distorting the facts. Following the publication of my
research, I contacted Sir Thomas in the belief that he would be happy to
resolve some key issues. For example: ·
Why did he select only two expert advisors? ·
Why did he assess the children’s evidence before, and not
after, choosing the experts? ·
Did Phil Goff know that he had the “greatest admiration”
for Justice Williamson? ·
Why did he say both experts reached the view that the
children’s evidence was reliable? ·
Why did he say that most allegations arising out of the
complainants’ later interviews generally did not result in charges? ·
How did Louise Sas’ name come to his attention? ·
What did he learn about Louise Sas during the course of
his inquiry? Sir Thomas refuses to respond to
these questions. 13. The nomination and appointment of Sir
Thomas was a big mistake. What motivated his nomination, and whether
officials advised Phil Goff of Sir Thomas' relationship with Justice Williamson,
is less important than its effect. At worst, the perception is that Sir
Thomas’ findings were unduly influenced by his relationship with the Ellis
trial Judge. Sir Thomas’ appointment clearly created an actual or perceived
conflict of interest. I have seen no evidence that Sir Thomas declared this
conflict. 14. Permitting Messrs Sim and Petherick
to advise Sir Thomas was another serious misstep. Their involvement created a
perceived or actual conflict of interest. Again, I have found no evidence to
indicate that either Sim or Petherick declared this conflict. 15. The ministerial inquiry into the
Peter Ellis case is a case study of how not
to conduct a public inquiry. New
Public Inquiries Act 16. I agree with the thrust of the Law
Commission’s proposals, especially its position that inquiries “should
conduct themselves according to a presumption of public access...” (para
21). The ministerial inquiry into the
Ellis case was closed to the public (remarkably, Peter Ellis was not
permitted to appear before the inquiry). This meant that the inquiry lacked
transparency. 17. One would hope and expect that if the
proposed Public Inquiries Act becomes a reality, perceived or actual
conflicts of interest (as described above) will become a thing of the past.
Under the new Act, the Department of Internal Affairs will administer public
inquiries (unless that department is the focus of any such inquiry).
Parliamentary legal counsel will devise the terms of reference for inquiries.
I support both of these proposals. 18. These measures are likely to lessen
the probability that conflicts of interest will remain a problem. However,
they don’t remove the possibility. There should be serious consequences if
those involved with the administration or handling of public inquiries do not
declare potential, perceived or actual conflicts of interest. Someone who
fails to declare a conflict should, in my opinion, be disbarred from ever
taking part in a public inquiry and should face a substantial fine. 19. I support the recommendation that a
new Public Inquiries Act should give inquiries the power to regulate their
own procedures, subject to the rules of natural justice. However, it should
be made clear to inquirers, and to officials involved with inquiries, what is
appropriate behaviour and what is not. 20. Financial considerations should not
be permitted to determine the breadth and depth of any inquiry. The
ministerial inquiry into the Ellis case was cheap – less than a third of its
half-million-dollar budget was expended – and its terms of reference narrow.
Unsurprisingly, the concerns that caused its establishment remain unresolved.
21. Public inquiries should be as
thorough as possible. Among some of the questions to be considered when the
terms of reference for a fact-finding inquiry are being decided upon are: ·
Is this inquiry likely to resolve the outstanding
issues/concerns? ·
What is required to bring resolution? ·
Could the appointment of a lay person be of use to the
inquiry? ·
What does the inquiry need to do, and what resources does
it require, to be able to arrive at the truth? 22. I support the Law Commission’s
recommendation that more than one inquirer be appointed to a complex or
long-running inquiry. The commission acknowledges that “an inquiry’s report may
be less compelling without the agreement of more than one competent mind”
(p181). I would go further and say that at least three inquirers (including
one from overseas) should be appointed to an inquiry into a possible
miscarriage of justice. 23. All documents relevant to a public
inquiry should be retained and stored. They should be publicly available
unless good reason exists to withhold the documents from public examination.
If documents are requested but cannot be located, the department responsible
for storing the documents should be held accountable. 24. Inquiries into possible miscarriages
of justice should provide a specific power for an inquirer, or inquirers, to
recommend a pardon. Ultimately, it will be up to Cabinet, or the
Attorney-General or Prime Minister, to decide whether a pardon should be
granted. As quoted in your draft report,
Hardie-Boys J has commented that commissions of inquiry are “not prevented”
from inquirying into guilt and innocence if that is covered by their terms of
reference. Of relevance here is the fact that the Court of Appeal appears to
be incapable of accommodating some cases. At Peter Ellis’ second appeal
hearing, for example, the appellate court stated on no fewer than four
occasions that it was unable to assess the weight that it should give to some
of the evidence proffered by Ellis’ legal counsel. The court said there were
matters that were worthy of consideration by a commission of inquiry. 25. In the ministerial inquiry into the
Ellis case, Val Sim advised Sir Thomas Eichelbaum: ·
to discount Sir Thomas Thorp’s report into the case ·
to discard three of the world’s leading experts on
children’s testimony ·
to ignore any expert that had a “close publishing
assocation” with these experts Official documents show that Sir
Thomas Eichelbaum believed, after talking with Sim, that Louise Sas, a little
known psychologist and child advocate from Canada, had “high standing”. Sim
expressed concern for the “personal reputations” of the interviewers, the
complainants and their families, but not the Civic Creche workers or their
families. Also, Sim advised Sir Thomas Eichebaum to consult with US law
professor Thomas Lyon. (Lyon was nominated by the Children’s Commissioner and
Crown Law Office, but could not take on the role of expert advisor.) Sim
would, or should, have known that Lyon’s advice was unlikely to be impartial.
Lyon’s views sit squarely outside the scientific mainstream and have been the
subject of much criticism. According to Debra Poole, who created and oversaw
the implementation of Michigan’s forensic interviewing protocol for children:
I have issues with Lyon’s reading of the literature, how
he slants it, and what he is willing to cite to make his points. I doubt
you’ll find him talking to people on both sides of the debate. These facts, and others, suggest
that Sim’s advice to Eichelbaum was one-sided and prejudiced his inquiry.
There seems little doubt that Sim acted in bad faith. Conclusion I support the thrust of the Law
Commission’s recommendations. The implementation of these recommendations
should prevent a recurrence of the problems that bedevilled the ministerial
inquiry into the Peter Ellis case. That inquiry is a case study of how not to
conduct a public inquiry. |
