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Wellington
justice researcher Ross Francis supports the Law Commission’s proposals to
change the way commissions of inquiries are held, believing they will stop a
repeat of the mistakes made during former chief justice Sir Thomas Eichelbaum’s narrow 2001 inquiry into the child evidence
from the Peter Ellis case. Francis,
who wrote two articles in the Law Journal late last year highly critical of
the actions of Eichelbaum and others in the Ellis saga, particularly supports
the commission’s proposal that inquiries should usually be open to the public.
The Eichelbaum inquiry was not only closed to the public, but even Ellis was
not allowed to appear before it. “This meant that the inquiry lacked
transparency,” Francis says in a submission to the commission. In a
draft report published in November, the Law Commission described the 1908
Commissions of Inquiry Act as antiquated and in parts confusing. It proposed
a new Public Inquiries Act that would allow inquiries to be cheaper, more
flexible and more effective, with freedom from the procedural constraints and
traditions it said have dogged inquiries till now. The commission called for
submissions on its report to be made by January 31. Daycare
worker Peter Ellis was convicted in 1993 on 16 counts of abusing children at
the Christchurch Civic Creche. Despite overwhelming evidence that the case
against him was as seriously flawed as in many similar American cases and
that no abuse even happened, Ellis served the full non-parole period of his
10-year sentence, being released in 2000. In
his submission, Ross Francis says Eichelbaum’s
nomination and appointment to the Civic ministerial inquiry by former Justice
Minister Phil Goff was a big mistake. There was a perception that Eichelbaum’s findings – that the children’s evidence was
reliable and Ellis had not proved his innocence – “were unduly influenced” by
Eichelbaum’s professional relationship with the
Ellis trial judge, the late Justice Neil Williamson. The close involvement in
the inquiry of two Justice Ministry officials, Val Sim and Michael Petherick, who had expressed strong views about the case,
also “created a perceived or actual conflict of interest.” (Ironically,
Val Sim, who over the years has opposed granting a pardon to Ellis and
advised successive ministers there was no evidence of a miscarriage of
justice in the case, is now a member of the Law Commission, which is chaired
by former law professor and prime minister Sir Geoffrey Palmer.) Francis
says he expects conflicts of interest such as those he alleges would become
less likely under the proposed law, because the Internal Affairs Department,
not Justice, would administer inquiries in future, and parliamentary lawyers
would devise their terms of reference. “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.” Noting
that key documents from the Eichelbaum inquiry cannot be located, Francis
says all relevant documents from an inquiry should be retained, stored and be
made available on request unless good reason exists to withhold them. If
requested documents cannot be found, the department responsible should be
held accountable. Inquiries
into possible miscarriages of justice should have a specific power to
recommend a pardon, which would be for the Cabinet, the attorney-general or
prime minister to approve, he says. “Commissions
of inquiry are ‘not prevented’ from inquiring 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’s 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.” Francis
supports 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.” Update
January 29: Peter Ellis’s lawyer, Judith Ablett-Kerr, QC, has asked Justice
Minister Annette King to agree to a full royal commission of inquiry into the
case.
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