Minister of Justice
8 March 2001
Mr Hugo Judd
Official Secretary
His Excellency the Governor-General
Government House
WELLINGTON
Dear Mr Judd
On 18 October 1999, Mr Peter Ellis filed an application for exercise of the
Royal prerogative of mercy in relation to convictions entered on 22 June 1993
on 16 counts of indecencies with children who attended the Christchurch Civic
Creche. He seeks a pardon and a Royal Commission of Inquiry into his case.
Background
This is Mr Ellis's third such
application. A chronology of events leading to the petition is attached as
appendix A.
You will recall that, as a result of the first and second applications for
exercise of the Royal prerogative of mercy made by Mr Ellis, his convictions
were referred to the Court of Appeal. In broad terms, the grounds of the
reference related to the following matters. Firstly, there were concerns about
the reliability of the childrens' evidence because of the interviewing
techniques used to obtain the evidence and the possibility of contamination of
the childrens' evidence. Secondly, there were issues surrounding retractions of
childrens' evidence. Thirdly, there were suggestions of possible jury bias in
relation to three jurors ( ▓▓▓▓,
▓▓▓▓, ▓▓▓▓ ) It was not
possible to fully investigate the allegations relating to the juror ▓▓▓▓
at the time the petitions were considered because of the prohibition on
approaching jurors about their deliberations.
Thirdly, there were matters relating to possible non-disclosure by Police of
relevant material, including photographs of the children at the creche.
Finally, the Court of Appeal was asked to reconsider certain rulings by the
trial Judge in light of the new material advanced in relation to the childrens'
evidence.
For completeness, I note that Mr Ellis had also submitted material relating to
the conduct of Detective Eade, one of the police officers responsible for
investigating the events at the creche. This matter was not, however, referred
back to the Court of Appeal in light of advice from both the Ministry and the
Honourable Sir Thomas Thorp, with which I agreed, that the material did not
point to a possible miscarriage of justice.
Court of Appeal hearing into the
reference
The Court of Appeal decision on the reference was delivered on 14 October 1999.
A copy is attached for your information. In summary, the Court concluded that,
whether taken individually or cumulatively, the grounds of the reference did
not indicate that a miscarriage of justice had occurred in Mr Ellis's case. His
appeal was accordingly dismissed.
At the Court of Appeal hearing, counsel for Mr Ellis relied on similar material
that was advanced in the two applications for exercise of the Royal prerogative
of mercy to support her submissions about the childrens' evidence. This
material fell into two broad categories. In the first category were various
reports, articles, and memoranda on the problems associated with obtaining
evidence of child sexual abuse. These included reports from various inquiries
held in other jurisdictions into the problems associated with investigating
mass allegation child sexual abuse.
The Court considered the material "informative", and "a useful
background", but considered itself unable to
embark upon a comprehensive analysis of the material to reach a conclusion on
any particular aspect of relevance to the appeal. The Court observed that this
sort of exercise was more properly the function of a Commission of Inquiry.
The second category was expert opinion in the form of affidavits from
psychologists with expertise in child sexual abuse. The affidavits canvassed
issues relating to the development of memory in children, interviewing
children, contamination of childrens' evidence, and the significance of
children retracting evidence. The Court criticised the affidavits both because
they were based partly on untested and inadmissible material and because the
experts had based their opinions on a selection of material rather than the
full trial transcripts. Inevitably, this affected the weight the Court could
attach to the affidavits.
The Court approached the problem from the starting point that there had been no
challenge to the conduct of Mr Ellis's trial. That being the case, as an
appellate court, it could only interfere to the extent that the material relied
upon could be shown to be new information about child interview techniques
which had become available since the trial or to show that the risks of
contamination were not properly understood at the time. Overall, the Court
concluded that Mr Ellis had not demonstrated anything sufficiently new in the
contamination and allied fields to justify the verdicts being set aside.
So far as the other matters were concerned, the Court considered the material
relating to possible jury bias, non-disclosure of documents, and the rulings of
the trial Judge. The Court also made further inquiries into the matters
relating to the juror Rev. Williams. However, it was satisfied that none of the
issues indicated that a miscarriage of justice had occurred.
The current application
Mr Ellis's third petition was lodged on 18 October 1999, four days after
the Court of Appeal decision on the reference. It is supported by 28 volumes of
material. Most of this material has been previously considered by the Executive
in the context of the two earlier applications. The new material comprises the
submissions, affidavits and documents which were presented to the Court of
Appeal during the recent Court of Appeal hearing.
A copy of the application is attached for your information. In summary, counsel
for Mr Ellis submits that the Court of Appeal adopted a conservative
interpretation of its jurisdiction and function under section 406(a) of the
Crimes Act 1961; and that, as a result, significant issues remain outstanding.
It is claimed that these matters can only be addressed by the grant of a pardon
and the appointment of a Royal Commission of Inquiry into the case.
Scope and terms of the Ministerial
inquiry
On 10 March 2000 I
appointed the Right Honourable Sir Thomas Eichelbaum to inquire into the case
to assist in the resolution of the third application. I have attached a copy of
Sir Thomas's report for your information. The terms of reference for the
inquiry are set out at page 18 of his report.
I am aware that Mr Ellis's counsel has expressed concern that the terms of
reference are too narrow to enable proper consideration of the issues. It is
therefore important that I mention the factors which influenced their
development. There were four main factors which influenced the shape of the
inquiry.
Firstly, there was a need to ensure that the inquiry, so far as possible,
focussed on those matters I have detailed above which the Court of Appeal was
unable to resolve. As you know, it is not appropriate as a matter of principle
for the Executive to inquire into matters which have been finally dealt with by
the Court. Any further inquiry into the case had to respect this principle so
far as possible, and apply only to those issues which had not been fully
resolved by the Court.
With this principle in mind, I did not consider that the claims of jury bias
and non-disclosure of documents were appropriate subjects for further inquiry.
These issues had already been comprehensively considered and rejected by the
Court of Appeal. The Court of Appeal is the appropriate body to consider issues
of this kind. In addition, there is nothing in the Court's judgment which
suggests that its ability to deal with these issues was affected by the nature
of the material that was adduced before it.
The issues relating to the reliability of the childrens' evidence were more
complex. While the Court of Appeal considered the issues so far as it could,
there were aspects of this matter it was unable to resolve because of the form
in which the evidence was presented and the nature of its appellate role.
Secondly, I considered it inappropriate, in the absence of new information, to
inquire into matters which had already been comprehensively considered and
rejected by the Executive. Such a reinvestigation, where no new information is
provided by the applicant, involves duplication and undermines confidence in
the ability of the Executive to deal with allegations of miscarriages of justice.
Mr Ellis's two earlier applications contained allegations about the conduct of
Detective Eade. The substance of these allegations were
that there were concerns about his mental state at the time of the investigation,
and that he had formed inappropriate relationships with mothers of the creche
children. These allegations were comprehensively considered by both the
Ministry and Sir Thomas Thorp. The matter did not form part of the reference to
the Court of Appeal. The applicant has provided nothing in his third petition that
indicates the matter should be reopened.
Mr Ellis's counsel urged upon me at a meeting which took place shortly before
the inquiry was established that the conduct of Detective Eade warranted
further inquiry because he was a source of potential contamination of the
childrens' evidence. However, the nature of the contact between Detective Eade
and the children was canvassed at both depositions and the trial, and I
considered that any further inquiry into his mental state at this late stage
was unlikely to significantly advance the issue.
Thirdly, I was mindful that a considerable period of time had elapsed since the
events at the creche occurred, and that it was unlikely that a factual
investigation would achieve any further resolution of the issues or
clarification of the events. This was a point that was emphasised by Sir Thomas
Thorp, and has been reiterated by Sir Thomas Eichelbaum in his report on the
case. The events at the creche took place in 1991/1992. Since then the case has
been subject to intensive public scrutiny. The positions of those involved in
the case, already polarised at the time of the trial, have long since become entrenched.
There is little real prospect that a further factual inquiry into the events at
the creche would achieve any greater resolution of the issues than was achieved
during the depositions and trial. The problem is particularly acute in the case
of the children who attended the creche. These children were only 3 or 4 years
old at the time of the events. It is difficult to see how they could shed
further light on the matter almost ten years later, or how a further factual
inquiry could proceed without the childrens' evidence. It followed that any
inquiry into the case should not seek to reopen these events. The evidence at
depositions and trial was likely to provide the best account available of the circumstances
which led to Mr Ellis's conviction.
Finally, I was also concerned about the effect that a further inquiry might
have on the children and their families. It was inevitable that further inquiry
into the case would put the children who attended the creche and their families
under the public spotlight, and bring them distress and trauma. It was
necessary to structure the inquiry in such a way as to minimise the harm to the
children and their families.
Importantly, the terms of reference for the inquiry enabled Sir Thomas to
consider only those matters which were not already fully resolved by the Court.
I am satisfied that there are no further issues which require further
consideration to protect against the possibility of a miscarriage of justice.
Process of Ministerial Inquiry
The process that was adopted for the Ministerial inquiry is set out at page 23
of Sir Thomas's report.
At the outset of the inquiry, I was concerned that the parents of the child
complainants should be represented, to enable them to make proper submissions
to the inquiry. On the suggestion of the majority of the parents, Ms Kristy
McDonald QC was appointed as counsel to represent them. In addition, Mr
Jonathan Eaton, a
As part of the terms of reference, Sir Thomas Eichelbaum was required to
appoint international experts to advise him on whether there were features of
the investigation and/or interviews of the children which may have affected the
reliability of the childrens' evidence. Sir Thomas sought nominations from the
parties to the inquiry in accordance with the terms of reference, and also
requested the assistance of advisers at the Ministry to assess the suitability
of nominees and identify any other potential candidates.
The terms of reference required Sir Thomas to appoint experts that reflected
the range of professional views. In this regard, it was important that the
experts were impartial, with a balanced view of the literature relating to the
investigation of child sexual abuse. Sir Thomas also considered it important
that the experts had no prior involvement in the case.
After consideration, Sir Thomas appointed Professor Graham Davies of the
University of Leicester,
Outcome of Ministerial inquiry
In summary, the
Right Honourable Sir Thomas Eichelbaum has concluded that there are no doubts
about the reliability of the childrens' evidence which render Mr Ellis's
convictions unsafe, or warrant the grant of a pardon in his favour. Sir Thomas
has emphasised that he did not consider this anything like a borderline
judgement. On the contrary, he found the case failed by a distinct margin. He
identifies the following as the salient points.
Firstly, Sir Thomas has noted that, in the course of the proceedings, doubtful
allegations and charges were weeded out. Some charges were dismissed at a
preliminary stage, and others were dismissed during the pre-trial process. The
jury was astute in identifying those allegations where the supporting evidence
or the method by which it emerged was open to valid criticism. He also
emphasised that, contrary to a common misconception, the jury was fully aware
of the bizarre allegations made by some of the children, particularly in later
interviews.
Secondly, Sir Thomas has commented that where the number of interviews was
excessive, allegations arising out of the later interviews did not generally
form the subject of charges and the tapes were not played, although they were
available to the defence.
Thirdly, Sir Thomas has noted that such shortcomings as occurred in the
interviewing process did not lead to convictions.
Fourthly, Sir Thomas has noted that both Professor Davies and Dr Sas concluded
that contamination was an insufficient explanation for the body of broadly
similar allegations, particularly of events at the creche.
Finally, Sir Thomas has emphasised that he, Professor Davies, and Dr Sas have
all independently reached the view that the childrens' evidence in the
conviction cases was reliable.
In his concluding remarks, Sir Thomas commented on the very extensive
consideration which has been given to the Ellis case. These included an
unusually exhaustive depositions hearing, a lengthy trial (involving numerous
pre-trial applications), and consideration by the Court of Appeal on two
occasions: in 1994 as a court of three, and again in 1999 as a court of 5, involving
seven Court of Appeal Judges. Finally, the case has been considered by Sir
Thomas himself, in conjunction with two independent international experts in
the context of the Inquiry.
Neither the Courts which have considered the case nor the Inquiry have any doubts
about the safety of Mr Ellis's convictions. Sir Thomas concludes that it must
by now be clear that the case has had the most thorough examination possible,
and it should be allowed to rest.
I agree entirely with Sir Thomas's conclusions. My advice is that Mr Ellis's
application for a pardon should be declined.
Yours sincerely
Hon Phil Goff
Minister of Justice
Encls.
Appendix A
Ellis case: Chronology of events
(i) High
Court trial
Mr Ellis's trial began on 26 April 1993. A number of charges laid
jointly against Mr Ellis and other creche workers were dismissed prior to
trial; and, at trial, the indictment against Mr Ellis contained 28 counts
involving 13 complainants. Three counts relating to two complainants were
dismissed on 5 and 6 May 1993. Twenty five counts relating to 11 complainants
eventually went to the jury.
The trial lasted for six weeks. On 5 June 1993, the jury returned 16 verdicts
of guilty in relation to 7 complainants. On 22 June 1993 the Court sentenced Mr
Ellis to a total of 10 years imprisonment.
(ii) 1994 Appeal
Mr Ellis appealed to the Court of Appeal against conviction and sentence on the
grounds that the verdicts were unreasonable in that the evidence of the
children was not credible, and that there had been a miscarriage of justice. In
addition, during the course of the appeal, advice was received through the
Registrar that one child's parents had reported that she had retracted her
allegations. The Court requested that an agreed independent barrister submit a
report on this matter.
The Court of Appeal delivered its judgment on 8 September 1994. It found that,
although it was not established that the child who retracted her allegations
against the appellant did in fact lie at the interviews, there was enough doubt
that it would be unsafe to let the 3 convictions on the counts involving her
stand. These convictions were quashed, and acquittals entered. In relation to
the remainder of the convictions, however, the Court found that no miscarriage
of justice had occurred. The appeal was otherwise dismissed, without affecting
the total length of Mr Ellis's sentence.
(iii) First and second applications
for exercise of mercy; 1999 Appeal
On 2 December 1997 Mr Ellis presented a petition to His Excellency the
Governor-General seeking a free pardon in respect of his 13 remaining
convictions, or alternatively a reference to the Court of Appeal pursuant to
section 406 of the Crimes Act 1961. Four grounds Mr Ellis's case
were subsequently referred to the Court of Appeal by Order in Council
dated 4 May 1998.
In interlocutory proceedings before the Court, counsel for Mr Ellis contended
that the hearing of the reference should be conducted in the manner of a
general appeal, and that she should be allowed to argue a number of matters
that fell outside the reference. The Court rejected this contention; and, on 16
November 1998, Mr Ellis presented a second petition to the Governor-General
seeking a free 'pardon and a Royal Commission of Inquiry into his case, or
alternatively a Royal Commission of Inquiry and for the whole case to be
referred back to the Court of Appeal. The Secretary for Justice obtained advice
from the Hon. Sir Thomas Thorp, a retired Judge of the High Court, on this
second petition. In his opinion of March 1999, Sir Thomas advised that the
reference to the Court of Appeal should be amended, to include a number of
further matters. A second Order in Council, dated 12 May 1999, subsequently
referred 6 grounds to the Court. In summary, these grounds were as follows:
§
Material
supplied in the first and second applications indicated that a miscarriage of
justice might have occurred because of the techniques used to obtain the
evidence of the child complainants;
§
Material
supplied in the first and second applications indicated that a miscarriage of
justice might have occurred because the significance of retractions was not
properly understood;
§
Material
supplied in the first and second applications indicated that a miscarriage of
justice might have occurred as a result of contamination of the child
complainants' evidence;
§
Rulings
of the trial Judge may have had the effect of restricting certain matters that
should have been placed before the jury;
§
Material
supplied in the first and second applications indicated that a miscarriage of
justice might have occurred because of jury bias; and
§
Documents
and photographs were not disclosed to defence counsel at trial.
The Court
delivered its judgment on the reference on 14 October 1999. In short, the Court
dismissed the appeal. The Court emphasised that its function was to treat the
reference as an appeal brought under the Crimes Act 1961. In this regard, the
Court was bound to examine the material brought before it in line with the
rules for fresh evidence that relate to normal appeals; determining whether the
matters set out in the grounds of the reference were unknown, or not adequately
appreciated, at the time of trial. The Court concluded that:
There is in our view an absence of
significant "newness" in the additional evidence to show there were
serious flaws or problems which were unknown or unappreciated.
In doing so,
however, the Court commented that there were a number of matters placed before
it by counsel for Mr Ellis which were beyond its jurisdiction as an appellate
court. It indicated that these matters would be more appropriately addressed by
a Commission of Inquiry. In summary:
§
The
Court indicated that it was unable to conduct a comprehensive review of the
body of expert psychological opinion relating to the factors affecting the
reliability of evidence taken from child complainants;