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1296 New Zealand Gazette No.34
Justice
Crimes Act 1961
Reference to the Court of Appeal or the Question of the Convictions or Peter
Hugh McGregor Ellis for Sexual Offences Against Children (No.2)
Michael Hardie Boys Governor-General
Order in Council
At Wellington this 12th day of May 1999
Present:
His Excellency The Governor-General in Council
(1) His Excellency the Governor-General, acting by and with the advice and
consent of the Executive Council,-
a) Refers the question of the 13 convictions
of Peter Hugh McGregor Ellis for sexual offences against children to the
Court of Appeal for hearing and determination. The background to, and the
reasons for, the reference appear in the Schedule; and
b) Revokes the Order in Council made
on 4 May 1998 entitled Reference to the Court of Appeal of the question of
the convictions of Peter Hugh McGregor Ellis for sexual offences against
children (1).
(2) In making this order, His Excellency the Governor-General
acts under section 406 (a) of the Crimes Act 196l and section 16 of the Acts
and Regulations Publication Act 1989.
Schedule
1. Interpretations –
In this Schedule, -
"the
applicant" means Peter Hugh McGregor Ellis;
"First application" means the application described in
clause 4 (1):
"First reference" means the reference described in clause 4
(2):
"Oral Ruling 14" means a ruling by the judge at the
applicant's trial restricting the defence in extent to which it could
cross-examine or lead, evidence on allegations by child complainants that
were not the subject of charges:
"Second application" means the application described in
clause 5.
2. Relationship between first reference and
this reference –
This reference -
a) Revokes the
first reference; and
b) Consolidates the grounds of the first and second applications; and
c) Incorporates and expands the reasons for the first reference.
Background
3. Trial and appeal -
(1) On 5 June 1993 the applicant was convicted in the High Court at Christchurch on 16
charges of sexual offences against 7 children who had attended the
Christchurch Civic Childcare Centre.
(2) On 22 June 1993 the applicant was sentenced by the High Court at Christchurch to a total
of 10 years imprisonment.
(3) On 8 September 1994 the Court of Appeal -
a) Allowed the applicant's appeal in respect
of 3 counts relating to 1 child, identified as child A. who retracted her
evidence during the hearing of the appeal in the Court of Appeal; and
b) Dismissed the applicant's appeal against
the remaining 13 convictions.
4. First application -
(1) The applicant made an application, received on 2 December 1997, for the
exercise of the mercy of the Crown in respect of his convictions for sexual
offences against children. The first application includes material submitted
by the applicant after 2 December 1997 in support of the first application.
(2) On 4 May 1995 the Administrator of the Government, by Order in Council,
referred the question of the 13 convictions of Peter Hugh McGregor Ellis for
sexual offences against children to the Court of Appeal for hearing and
determination.
5. Second application -
The applicant made a second application, received on 16 November 1998, for
the exercise of the mercy of the Crown in respect of his convictions for
sexual offences against children. The second application includes material
submitted by the applicant after 16 November 1998 in support of the second
application.
6. Information about Dr Barry Parsonson,
Professor Stephen Ceci, Professor Raymond Bull, and Dr Michael Lamb -
(1) The applicant commissioned reports from Dr Barry Parsonson in support of
some of the grounds in his first application.
(2) The applicant submitted material from Professor Stephen Ceci in support
of some of the grounds in his first application.
(3) The applicant commissioned reports from Professor Raymond Bull and Dr
Michael Lamb in support of some of the grounds in his second application.
(4) Dr Barry Parsonson, Professor Stephen Ceci, Professor Raymond Bull, and
Dr Michael Lamb are currently employed as follows;
a) Dr Barry
Parsonson is a registered psychologist. He is currently employed part-time as
an associate professor of psychology at the University of Waikato and also
works part-time as a consultant psychologist:
b) Professor Stephen Ceci is currently employed as professor of human
development at Cornell University, Ithica, U.S.A.:
c) Professor Raymond Bull is currently employed as professor of
criminological and legal psychology at the University of Portsmouth, England:
d) Dr Michael Lamb is currently employed as a senior research scientist and
chief in the section of social and economic development of the National
Institute of Child Health and Human Development, Bethseda, U.S.A.
7. Grounds involving
children's evidence -
(1) one ground of the first and second applications is, among others, that,
since the applicant's appeal, material has become available or obtainable
that shows -
a) That the
methods used to interview child complainants were seriously flawed; and
b) That the risks of contamination of the child complainants' evidence were
underestimated and not properly investigated.
(2) The submissions in support of this ground include -
a) That the
techniques used to interview the child complainants in the applicant's case
were materially defective, having regard to the findings of expert research
over the last 5 years; and
b) That the risks of contamination, and the special hazards that arise from
mass allegations, in the child care environment were not recognized; and
c) That the matters described in paragraph (a) or paragraph (b) or both
paragraphs may affect the reliability or credibility of the child
complainants' evidence.
(3) In support of this ground, the applicant tendered, among
other material, the following 3 reports by Dr Barry Parsonson:
a)
"Comment on the probability of contamination in 'disclosures' obtained
from children in the case of R v. Ellis", dated 30 November 1997;
b) "The interviewing of children: Effects of question form, props,
question repetition and repeated interviews on accuracy of children's
reports. A review and commentary in respect of the Christchurch Civic Crèche
interviewing and interviewers", dated 27 November 1997;
c) "Children's memory: A brief review of developments", dated 27
November 1997.
(4) The applicant also tendered, among other material, brief
reviews by Professor Bull, dated 13 July 1998, and Dr Lamb, dated 17
September 1998, on the 4 reports of Dr Parsonson referred to in this order.
The reviews jointly confirm the accuracy of Dr Parkinson's understanding of
the literature in the areas covered by his reports. (A grant of legal aid was
made for full reports by Professor Bull and Dr Lamb. The full reports were
not available when the second application was made.)
(5) The applicant also tendered, among other material, a report commissioned
by TV3 from Professor Ceci, dated 24 July 1995, together with extracts from a
transcript of an interview with Professor Ceci on an unknown date. These documents referred to the need for
special care in dealing with mass allegations of sexual abuse in the child
care environment.
(6) The applicant also tendered, among other material, the report of the
Royal Commission into the New South Wales Police Service, dated May 1997. As
part or its consideration of the investigation and prosecution of paedophile
activity in New South Wales,
the commission examined a number of cases characterised by multiple
allegations of sexual abuse against staff at child care centres. The
commission's report contains a number of strictures relating to the
interviewing of child complainants in such cases.
8. Grounds involving
retraction -
(l) One ground of the first and second applications is, among others, that,
since the applicant's appeal, it has become clear that the significance if
child complainants' retractions of their evidence was not properly
understood.
(2) In support of this ground, the applicant tendered, among other material,
a report by Dr Barry Parsonson entitled "Retraction of allegations of
abuse by children", dated 27 November 1997.
9. Grounds involving
trial procedure -
(1) One ground of the first application is, among others, that the applicant
did not receive a fair trial because of rulings made at the trial relating to
the admissibility of evidence.
(2) The submissions in support of this ground include the submission that, as
a result of Oral Ruling 14, the jury was derived of material relevant to the
assessment of the reliability or credibility of the child complainants'
evidence.
10. Grounds involving jury -
(1) One ground of the first and second applications is, among others, since
the applicant's appeal, it has become clear that the jury which convicted him
failed to disclose that it might not have been impartial and as a result he
did not receive a fair trial,
(2) The jurors involved are-
a) "Juror
A", who is said to have had a connection to a Crown witness through the
juror's intimate partner:
b) "Juror B", who is said to have expressed the view in a public
place that the applicant was guilty, before the case for the prosecution was
complete:
c) "Juror C", who is said to have told Ms Lynley Hood, an author
proposing to write a book on the applicant's case, in an audiotaped interview
-
(i) That be was sexually attracted to one of
the child complainants at the applicant's trial: and
(ii) That he had counselling because of this attraction.
(3) The submissions in support or this ground include the submission
that the material on juror C, when considered with the evidence of possible
jury bias through juror A, gives new significance to the evidence or possible
jury bias through juror B.
11. Grounds Involving non-disclosure of
material -
(1) One ground of the first and second applications is, among others, that
material that was clearly important for the defence -
a) Existed at
the time of the applicant's trial; and
b) Was in the possession of the Crown at that date; and
c) Was not disclosed to the defence.
(2) The material includes -
a) Photographs;
and
b) Documents relating to the issue or contamination of the child
complainants' evidence by
parents.
Reasons
12. Reasons - The reasons for the reference are -
a) That material is supplied in the first and
second applications that indicates that a miscarriage of justice might have
occurred because of the techniques used to obtain the evidence of the child
complainants; and
b) That material is supplied in the
first and second applications that indicates that a miscarriage of justice
might have occurred because the significance of child complainants'
retractions of their evidence was not properly understood; and
c) That material is supplied in the
first and second applications that indicates that a miscarriage of justice
might have occurred because the risks of contamination of the child
complainants' evidence were underestimated and not properly investigated,
which may have had consequences for the reliability or credibility of the
child complainants' evidence; and
d) That a miscarriage of justice might
have occurred because or Oral-Ruling 14, when the ruling is considered in the
light of the reasons in paragraphs (a) to (c); and
e) That material is supplied in the first and second applications that
indicates that a miscarriage of justice might have occurred because of jury
bias: and
f) That, if the applicant establishes that the material referred to in clause
11 was not disclosed to his counsel at trial, a miscarriage of justice might
have occurred because material that was material to the defence was not
disclosed to it.
DIANE WILDERSPIN, Clerk of the Executive Council.
Gazette, 1998, page 1415.
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