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Petition of Lynley Jane Hood and Don Brash
Executive
Summary Background Depositions Charges
against other creche workers Creche
closure Personal
grievances Ellis
trial The
First Appeal Application
for Royal prerogative of mercy & reference back to the Court of Appeal Directions
hearing in Court of Appeal Second
application for Royal prerogative of mercy Legal
opinion from Sir Thomas Thorp Second
reference back to the Court of Appeal Third
application for Royal prerogative of mercy Ministerial
Inquiry into the Peter Ellis case-Sir Thomas Eichelbaum The
request for a Royal Commission of Inquiry Conclusion Appendix 1 Counts
on which the Petitioner was convicted at trial Appendix 2 The
Royal prerogative of mercy process Appendix 3 Terms
of Reference for the Ministerial Inquiry into the Peter Ellis case
1. On
24 June 2003, the petition of Lynley Jane Hood and Dr Don Brash and 807
others was presented to Parliament. The petition requests "the
establishment of a Royal Commission of Inquiry to inquire into the
investigation and legal processes relating to the Christchurch Civic
Creche". 2. The
Justice and Electoral Committee has asked the Ministry of Justice to provide
a submission on the petition and its request for action.
3. This
report sets out the background to the Ellis case, and the processes to which
the case has been subjected. This includes issues relating to the charges
against other creche workers, the closure of the creche and the employment case
taken as a result. In the main, however, the report focuses on the processes
through which the case against Mr Ellis has progressed. This includes detail
of the depositions and trial, the two Court of Appeal hearings, the
applications for the Royal prerogative of mercy and the Ministerial Inquiry
carried out by the Right Honourable Sir Thomas Eichelbaum. 4. The
report then considers the current request for a Royal Commission of Inquiry
into the case. We note that the petition does not set out what purpose or
purposes it is intended that a further Inquiry could achieve. At this stage,
therefore, the report makes some general observations about some of the
issues which would need to be thought through in the context of considering
whether an Inquiry is appropriate. 5. Such
issues include whether any useful purpose could be achieved by an Inquiry,
the implications of inquiring further into a case that has already been
finally resolved through the criminal justice system, whether the issues are
more appropriately dealt with by the Privy Council and the potential impact
on the child complainants and their families. 6. The
report concludes that the Ellis case has already had very extensive
consideration within the criminal justice system. Whilst there continues to
be a significant degree of public disquiet over the verdicts in the case, the
Ministry considers that this is probably a case where the expectation of
universal satisfaction in the outcome of the case is unrealistic. In a case
which focuses very much on the credibility of the parties, we consider it
unlikely that anything more than the usual processes can achieve a better
outcome. 7. In
any event, we consider that the onus is on the petitioners to make out a
cogent case that there are relevant and significant issues that have not
already been considered and which could have a material outcome on the case.
We are available to the Committee to provide a further report, if it wishes,
once the petitioners have outlined their arguments.
8. Peter
Ellis commenced employment at the Christchurch Civic Childcare Centre in
September 1986 as a reliever. He was given a permanent position in February
1987 and commenced a 3 year course towards a child-care certificate which he
completed and passed in 1990. 9. There
were an estimated 70-75 families using the creche from 1989 onwards, with a
daily average of about 40 children. Staff numbers were aimed to maintain a
ratio of 1:4 for the nursery and 1:8 for the larger pre-school room. Complaint and interviews 10. On 20 November 1991, a creche mother reported to the
principal of the crèche that her son had said he did not "like Peter's
black penis". Ellis was placed on temporary leave and suspended shortly
afterwards. A complaint was made to the police and the Specialist Services
Unit of the Department of Social Welfare commenced interviewing creche
children. 11. The management committee of the creche called a meeting
of parents at the creche on 2 December 1991 which was attended by police and
Social Welfare representatives. There had been some media publicity and the
object of the meeting was to advise parents that there were concerns, but no
specific allegations. They were asked to look for any noticeable changes in
their children's behaviour and any events which might explain them. 12. Ms Sidey, a psychologist with the Specialist Services
Unit, talked to the parents about the interviewing process and what was
involved and said that, if parents did have concerns about their children,
they could be discussed with her and a decision could be made on whether to
interview them. In the initial interviews, the children concerned did not
make any allegations of sexual offending, and at one stage the Police told
the management of the creche that the inquiry had been completed. However, on
30 January 1992, the first allegation of sexual abuse was made and after
that, there were a number more. 13. Interviews continued with those children whose parents
had concerns. Ms Sidey had the assistance of two other specialists. They were
conducted in accordance with the Evidence (Videotaping of Child Complainants)
Regulations 1990. Generally, before an interview commenced there would be a
short discussion between the interviewer and the parents covering any disclosure
the child had made and their responses to it, and any behaviour they had
noted, with possible explanations for it, and the child's background and
friends and contacts with other creche children. 14. These interviews were conducted under the overall
supervision of Dr Karen Zelas, a specialist child psychiatrist with
international experience in the field of child abuse. It was a massive
exercise and overall there were interviews of 118 children, most of them
disclosing no abuse and serving to reassure parents. In some cases, there was
mention of abuse but the parents did not want to put the child through the
court process. The interviews continued throughout 1992 with most of the
eventual complainants being interviewed a number of times. 15. Ellis was arrested on 30 March 1992 and charged with
indecently assaulting a child. He had been interviewed by Detective Eade of
the Christchurch Child Abuse Unit and had consistently denied any misconduct.
16. On 31 March 1992, there was a meeting of creche parents
at Knox Hall, 17. On 10 October 1992, as a result of the interviewing
process, four female creche workers were also arrested.
18. On 2 November 1992, the deposition hearing commenced,
concluding on 4 February 1993 when Ellis and the four other creche workers
were committed for trial on a total of 42 charges involving 20 children.
Charges
against other creche workers 19. As stated, as well as Ellis, charges were also brought
against four of the women creche workers at the Christchurch Civic Creche -
Marie Keys, Janice Buckingham, Gaye Davidson and Deborah Gillespie. Charges against Marie Keys, Janice Buckingham
and Gaye Davidson 20. Three of the women each faced one charge of being a party
to an indecent act committed by Peter Ellis. The allegation was that the
three women were present at (and encouraged) an incident at which a child
(Child X) was taken to an address in 21. The only evidence which was adduced at depositions
hearing in support of this allegation was an evidential video taped interview
with Child X. There was no supporting evidence from any of the other persons
named by Child X, no evidence of any reasonably contemporaneous complaint by
any child who was said to be present at the incident and no evidence of
physical injury to Child X at that time or later. 22. Following a defended deposition hearing on 11 February
1993, the three women were discharged under section 347 of the Crimes Act
1961. In an oral judgement, Williamson J gave three reasons for his decision
to discharge: ·
the evidence was of insufficient weight to justify their trial; ·
the potential for prejudice against the accused was so strong that
they might have been convicted for the wrong reasons. In this regard,
Williamson J noted that "it must be a real fear that a jury may judge
the three accused on the basis that they should have been alerted by Peter
Ellis' sexual statements or activities, or by what the children had been
saying to them or by the need to protect very young children who were in the
case;" and ·
that the unavoidable delay in their trial on this charge may have
resulted in hardship to the then seven year old Child X who would have had to
wait until the other trial of Ellis was completed. 23. Williamson J did not consider that any one of these
reasons would on its own have been sufficient to justify a discharge. It was
the combination of the three factors which gave rise to the decision to
discharge the women. Charges against Deborah Gillespie 24. Deborah Gillespie faced one charge of doing an indecent
act in a public place and one of carrying out an indecent assault on a child. 25. The charge of doing an indecent act in a public place was
based on an allegation that Deborah Gillespie had engaged in sexual
intercourse with Peter Ellis in front of children at the creche. The only
evidence in support of the allegation was a videotaped evidential interview
with a child in which dolls were used to simulate the particular act and the
evidence of the interviewers. At the deposition hearing on 11 February 1993,
Judge Anderson noted that the evidence of the interviewers was "at best
equivocal; Ms Crawford [the interviewer] saying she really had no expertise
in the matter whatsoever". On that basis, Judge Anderson considered that
the evidence was not sufficient to place the defendant on trial and she was
discharged. 26. The charge of indecent assault related to an allegation
that Deborah Gillespie, jointly with Peter Ellis, indecently assaulted a
child at the creche by touching her vagina with their fingers. This charge was based primarily on the evidential
interview with the child concerned. At depositions, Judge The costs hearing 27. The four women creche workers were each granted legal aid
subject to the following contributions (Davidson $7,500.00, Buckingham
$12,500.00, Keys $4,000.00, Gillespie $1,250.00). 28. The District Legal Services Committee fixed total
remuneration for the applicants' counsel up to the end of depositions at a sum
of $43,220.00. 29. Subsequently, the Committee gave approval to the
applicants' counsel to charge the women directly (as permitted by section
11(3) of the Legal Aid Services Act 1991) a further sum of $43,469.79. 30. This reason advanced by defence counsel for seeking this
approval was that the women creche workers were likely to be awarded
substantial costs. His concern was that the level of such an award should not
be limited by the restrictions imposed on such awards where people are
legally aided. The four women agreed to this further liability being
incurred. 31. As a result of these arrangements, the applicants
incurred liabilities which were not covered by the grant of legal aid
(Davidson - $21,548.21, Buckingham -$25,048.21, Keys - $19,548.21, Gillespie
- $12,435.35). 32. In the event, Justice Williamson declined to award costs
to the four women creche workers. In reaching this decision, he did not
consider it necessary to reach any conclusion on the propriety of the
arrangements made with the Legal Service Committee. There is no right of
appeal against orders as to costs.
33. The facts, as set out in the Court of Appeal judgement
relating to the personal grievances discussed below, are as follows. On 1 September 1992, (approximately five
months after the arrest of Peter Ellis), the Christchurch City Council was
asked at short notice to receive a deputation from the Ministry of Education,
the Department of Social Welfare, and the Police. This meeting took place on
2 September. At that meeting, a Police inspector revealed to the Council that
there were ongoing Police investigations into the creche but refused to
disclose any information about the nature of those investigations. Police
stressed that the discussion at the meeting was to be kept in the strictest
confidence even from the Mayor. After
receiving undertakings of confidentiality from Council officers present at
the meeting, the Police explained that they considered children at the creche
to be in serious danger and, as a result, wanted the creche closed that very
day not later than 1.00pm. 34. The Council was reminded that the creche could only
operate by virtue of a licence issued by the Ministry of Education. Police
indicated that their preferred course of action was for the Ministry of
Education to withdraw the creche licence and to do so that day. If that did
not occur, the alternative course was to lay a complaint against the Council.
The result of this meeting was that, after securing a day's grace, the
Council entered into an arrangement whereby the Ministry of Education gave
the Council a letter of suspension of the creche licence and the Council in
turn handed over a letter saying the Council had no representations to make
about the matter. Thereupon, the Ministry of Education cancelled the creche
licence and the creche was closed.
Personal
grievances Çreturn to index 35. On the same day the creche was closed, the manager gave
notices to the creche staff that the creche would be closed with immediate
effect and that staff were to be made redundant. The locks were changed and a
press statement was released. The next day, following representations from
the union, the notices were substituted with notices that, pending
consultation with the union, all staff were suspended on pay for two weeks.
That period was later extended until the union was notified that the workers'
employment would terminate on 22 October 1992. 36. Meanwhile, on 28 September 1992, the union submitted a
personal grievance claim alleging that the council had committed an
unjustified action in failing to follow the complaints procedure in the
staffs employment contracts and in failing to give the workers the
opportunity to answer the allegations from the police. 37. The Employment Court [Note 1] concluded that the creche workers were
entitled to compensation for unjustifiable dismissal, firstly as the
dismissals were not for redundancy 'but because the council acted on
suspicion that the staff were sexually abusing children, and secondly,
because of process failure in that the council did not give two weeks' notice
to the union of termination of employment for redundancy. 38. On appeal, the Court of Appeal [Note 2] overturned
these decisions and concluded that there was no basis for any finding other
than that the closure of the crèche led the council to see it as a genuine
redundancy situation. The Court of Appeal considered that it was unrealistic
to suggest that the council could have embarked on its own inquiry into
possible wrongdoing and that the council was justified in accepting the
categorical statements of the Police and the Ministry of Education. 39. The Court of Appeal agreed that there had been a process
failure in that the redundancy notices issued did not comply with the
provisions of the employment contracts. However, this was found to be a short
duration procedural breach from which no loss of income flowed and the remedy
was therefore confined to compensation for humiliation, loss of dignity,
injury to workers' feelings and any loss of benefit, totalling $83,500.
40. The trial of Mr Ellis on 28 charges alleging indecency
with 13 young children commenced on 26 April 1993 and lasted for six weeks. Evidence 41. Pursuant to an order made under section 23E of the
Evidence Act 1908, the trial evidence of the child complainants was given by
way of the videotape interviews. Additional oral evidence, including
cross-examination, was given by way of closed circuit television. The Crown
case included evidence from a parent or parents of each complainant, and from
Ms Morgan and Ms Sidey, who had conducted the evidential interviews in
question. In addition, Dr Zelas gave expert evidence in terms of section 23G
of the Evidence Act, and also on the topic of contamination generally,
including children's memory and recall capabilities. The Crown also called
medical evidence, and other crèche workers who had been employed over the
relevant times, including one of the women who had been arrested but
discharged after depositions. Police
evidence included that of Detective Eade, the officer in charge of the
investigation. 42. Evidence for the defence was given by Mr Ellis, other
parents who had children attending the creche at relevant times, and a number
of other crèche workers including the remaining two who had been earlier
arrested but discharged. The defence expert was Dr Le Page, who gave evidence
as to children's recall ability, suggestibility and in relation to the
matters set out in section 23G of the Evidence Act. Convictions and sentence 43. Mr Ellis was convicted on 16 counts. Three were the
subject of a discharge by the judge during trial, and 9 verdicts of acquittal
were entered. A description of those counts is set out in Appendix One. 44. On 22 September 1993, Mr Ellis was sentenced to 10 years
of imprisonment. On sentencing him, Justice Williamson, the trial judge,
described the verdicts as correct. He observed; "The jury were
in a unique position in this case. Unlike almost all of those who have
publicly feasted off this case by expressing their opinions, the jury
actually saw and heard each of the children. They also heard your evidence and
that of the other former
45. The first appeal was heard in 1994. [Note 3] On appeal
against conviction and sentence, Ellis alleged that the verdicts were
unreasonable in that the evidence of the complainant children was not
credible and the nature of the interview process was unsatisfactory. He also
claimed that there was a miscarriage of justice and that there were a number
of inconsistencies where he had been convicted of charges based on earlier
disclosures but acquitted of those based on later, more bizarre allegations. 46. One of the child complainants had retracted her allegations
against Ellis during the course of the appeal hearing, claiming that she had
lied during the interviews. Evidence of complainant children was
not credible 47. In relation to the first ground, the Court of Appeal was
not persuaded that anything in the material placed before the Court by Ellis
made the accounts given by the various complainants unworthy of belief. The
Court of Appeal also rejected all criticisms made in respect of each
complaint's evidence, or the interview process used to obtain that evidence. 48. In alleging that the children's evidence was unreliable,
Ellis' counsel took the Court of Appeal through extracts from transcripts of
videos played to the jury to demonstrate the improbability of what the
children were saying when viewed against independent evidence of place and
circumstances in which the conduct was supposed to have occurred. 49. The Court of Appeal was not persuaded that any of the
matters raised regarding the design and operation of the creche meant that
the abuse described by the children could not have happened, or that their
evidence of it could not be relied on. They were similarly unconvinced about
the alleged lack of opportunity for abuse away from the creche. The Court of
Appeal concluded that, although the matter called for careful consideration
by the jury, nothing placed before them rendered the accounts given by the
various complainants inherently improbable or unworthy of belief. The interview process 50. In considering claims that the interview process was
unsatisfactory, the Court of Appeal concluded that the professionalism of the
three women who conducted the interviews was obvious from the transcripts and
the evidence they gave about their training and extensive experience.
Although there was criticism about some of the questions the interviewers
asked and the way some of the evidence was elicited, the Court was satisfied
that this was "of no real moment." The Court commented that: "The
interviewers in this case were well aware of the need for a neutral approach
and knew the dangers of asking leading questions (ie. questions which suggest
the appropriate answer). The jury had the advantage of listening to and
observing them and the children throughout the many hours the tapes were
played in Court and they were able to assess the spontaneity and genuineness
of the child's reactions and disclosures, and the effect of the interviewer's
attitude and questioning. From the extracts of the transcripts to which we
have been referred, the interviewer can be seen in some cases to be following
up information received from a parent, but without inappropriate persistence
or leading, and we do not accept the submission that they were working under
an agenda with the object of obtaining disclosure of abuse in the belief that
it had occurred." Playing of the tapes 51. One of the features relied on to demonstrate the
allegedly unsatisfactory nature of the interview process and the lack of
credibility of the child complainants was the increasingly bizarre nature of
the conduct that they described in successive interviews, some of which was
not shown by the Crown to the jury. It was claimed that the defence was
handicapped by the Judge's ruling limiting the playing of those tapes and
cross-examination of the complainants on them. 52. The effect of the Judge's ruling was that the prosecution
could play those tapes it considered necessary to support the charge. The
defence was supplied with all of the tapes and was able to play those parts
it considered necessary in order to cross-examine. The Court of Appeal noted
that the Judge's ruling was made to prevent the trial becoming enmeshed in
all the collateral and peripheral matters covered in the tapes not relied on
by the Crown, and to avoid exposing the jury to the playing of many hours of
irrelevant material, thereby distracting them from consideration of the real
issues. 53. Ellis' counsel conceded that the defence was not denied
an opportunity to play whatever tapes they had requested. It was argued,
however, that the defence had felt constrained by the Judge's insistence on
relevancy from seeking more extensive playing, in order to demonstrate the
way the interview process had led the children into making these extreme
allegations. 54. The Court of Appeal did not accept this as a valid
criticism. The Court noted that, even without the tapes being played, some of
the complainants readily admitted in cross-examination to making the more
bizarre allegations described in the tapes not shown to the jury. 55. In the Court's assessment, the jury had ample opportunity
to judge the process from the extensive material played to them and concluded
that "the ruling about the tapes was one which the Judge was entitled to
make in the circumstances of this trial and that it caused no prejudice to
the defence." 56. Counsel for Ellis also made arguments that there was a
general miscarriage of justice arising from any one or more of six specified
grounds. Several of those grounds were dealt with by the Court of Appeal
under the first ground relating to the unreasonableness of the verdict. Those
remaining are set out below. Retention of transcripts by jury 57. Ellis' counsel criticised the fact that the jury were
allowed to retain and use transcripts of the complainants' video recordings
of evidence-in-chief, and contended that it was unfair for the jury to have
transcripts of only the tapes played by the Crown and not those defence tapes
which were played. The Court of Appeal noted that it is now commonplace to
provide transcripts to assist a jury and that this was not inappropriate in a
trial of this length, containing many hours of screening. The Court also
found that, in the overall effect of the case, the fact that the jury did not
also have transcripts of the defence case did not prejudice the accused. This
was particularly because, in instances where the defence was able to make
real in-roads in cross-examination there were verdicts of not guilty. Evidence from Dr Zelas 58. The next ground was a complaint that the extent of the
evidence permitted from Dr Zelas in terms of section 23G of the Evidence Act
occasioned a miscarriage of justice. Ellis' counsel suggested that Dr Zelas
was in an "uneasy" position because she acted in a supervisory role
in the interview process and then appeared as an expert expressing the sorts
of opinions authorised by section 23G. These opinions were about the
consistency of the complainants' behaviour with that of sexually abused
children of the same age group; the intellectual attainment, mental capability,
and emotional maturity of the complainant, and the general development level
of children of the same age group. Counsel did not suggest that Dr Zelas was
disqualified from giving such evidence, but that she was in a difficult
position from which to draw the fine line between evidence allowed under the
section and the expression of an opinion on the credibility of particular
complainants. 59. The Court of Appeal was unequivocal in its conclusion
that, in the extensive evidence given by Dr Zelas, they detected nothing to
substantiate the suggestion that she overstepped the limitations imposed by
section 23G and started expressing views on the credibility of individual
complainants. Judge's summing up 60. Finally, the Court of Appeal considered the suggestion
that, in summing up, the Judge failed to put the defence case adequately and
adopted a prejudicial treatment of its approach. The Court of Appeal
concluded that there was nothing of substance in this ground to give them any
concern over the guilty verdicts and noted that if the judge had got the
defence case so badly wrong, it was strange that there was no request at the
close of the summing-up for him to rectify this. 61. In dismissing the appeal, the Court observed: "Our overall judgement
of the case is that after this long trial the jury were folly justified in
their conclusion that charges against the accused had been established beyond
reasonable doubt." Retraction of allegations by Child A 62. During the course of the appeal, advice was received that
the parents of one of the complainants (referred to as Child A in the Court
of Appeal judgement) had been informed by the complainant that she had lied
during the interviews about Ellis. The hearing was adjourned for a report to
the Court to be prepared by an agreed independent barrister. The report
indicated that, while Child A had withdrawn her allegations, the barrister
did not find her explanation that she had made up the details convincing. In
the end, he concluded that he was in a position of some doubt on the issue. 63. The Court shared the doubts of the counsel who saw the
child and concluded that they were by no means satisfied that she did lie at
the interviews, although she might genuinely believe that she did. With such
doubts, it quashed the convictions arising out of the complainant's evidence. 64. The Court clearly concluded, however, that giving Mr
Ellis the benefit of the doubt did not affect its view of the correctness of
the other convictions.
Application
for Royal prerogative of mercy 65. Normally in 66. A convicted person can also apply to the Governor-General
for an exercise of the Royal prerogative of mercy to either grant a free pardon
or to refer the conviction/s back to the Court of Appeal for further
consideration. A full description of the process of the royal prerogative of
mercy is set out in Appendix Two. 67. On 2 December 1997, Mr Ellis filed a petition seeking a
free pardon in respect of his remaining 13 convictions, or, in the
alternative, that they be returned to the Court of Appeal for its further
consideration. The essence of Ellis' contention was that the criminal justice
system had failed to protect him and to safeguard his rights. He also
contended that a gross miscarriage of justice had been allowed to occur which
was not able to be rectified because the very structure of the appellate
system precluded a revisiting of the whole issue de novo. Ellis alleged that
the failure in the system comprised 5 multiple components: ·
The Investigation ·
Children's Evidence ·
The Retraction. ·
The Trial Process ·
The Jury 68. The Ministry of Justice advised against the grant of a
pardon. We considered it inappropriate in principle to recommend a pardon
while the matter was capable of resolution by the judicial process. In this
respect, we noted that Mr Ellis had not provided any real explanation for his
contention that the appellate process could not deal satisfactorily with his
case. We also concluded that the
material advanced, much of which had already been considered by the Court of
Appeal, was insufficient to justify a pardon. 69. We did, however, consider that some of the matters which
Mr Ellis had raised warranted further consideration by the Court of Appeal.
Material produced in support of the petition, in particular an affidavit from
psychologist Dr Parsonson, indicated that there might have been something of
a "sea change" in professional thinking about children's evidence
since the 1993 Court of Appeal hearing. The material in his report suggested
that the risks of contamination of children's evidence could have been more
significant than was the generally accepted view in 1993. 70. The Ministry also considered that two other issues
warranted further consideration. These related to the issue of possible jury
bias (involving a juror who was the partner of a woman who worked with one of
the children's mothers) and allegations of non-disclosure of photographs said
to be relevant to the defence. 71. In light of the Ministry's advice, the then Minister of
Justice advised the Governor-General to refer the case to the Court of Appeal
pursuant to section 406(a) of the Crimes Act 1961. This was done by Order in
Council dated 4 May 1998.
Directions
hearing in Court of Appeal 72. On 4 June 1998, the Court of Appeal heard argument from
Ellis' counsel that the reference back to the Court of Appeal gave Ellis the
same rights as a general appeal, that he was entitled to full discovery, to
engage experts, to file points on appeal and to have the material relevant to
those points from the trial and appeal record put before the Court at the
hearing of the reference. 73. In a judgement dated 9 June 1998, the Court rejected that
contention, concluding that the hearing and determination of references under
section 406(a) of the Crimes Act 1961 should be confined to the matters
raised in the reference.
Second
application for Royal prerogative of mercy 74. On 16 November '1998, Ellis filed another petition
seeking "a free pardon and a Royal Commission of Inquiry" into his
case, or, in the alternative, "a Royal Commission of Inquiry into his
case and for his whole case to be referred back to the Court of Appeal."
The petition asked that, in the event of a reference to the Court of Appeal,
"the Court should assume an investigative role itself." 75. The application was supported by the material previously
advanced, together with some additional material. This included letters from overseas
psychologists Professor Bull and Dr Lamb and extracts of the 1997 Report of
the Wood Commission. There were also further allegations about one of the
jury members and about non-disclosure by the prosecution of relevant
material. 76. The main thrust of the second petition was to restate
more forcefully the contention previously advanced by Mr Ellis that the Court
of Appeal was not an appropriate body to consider his claims of miscarriage
of justice. The petition argued that the court had already limited the scope
of the reference and had itself recognised that it was "not the
appropriate body to carry out an investigation or really to inquire into the
merits of a conviction where an inquiry would be necessary to obtain
justice."
Legal
opinion from Sir Thomas Thorp 77. Following receipt of the second application, the
Secretary for Justice obtained advice from the Hon Sir Thomas Thorp, a former
Judge of the High Court, on whether the terms of the reference ought to be
enlarged. Sir Thomas was also invited to comment on Mr Ellis' application for
pardon. 78. Sir Thomas noted that the role of the pardon in the
criminal justice system is as a unique constitutional safeguard against the
failure of that system. As such, he considered it should only precede the
exercise of other available remedies if there were clear and cogent reasons
for doing so. Particularly cogent reasons would be necessary to justify
pre-empting the decision of the Court of Appeal after a conviction had been
referred to it. He did not consider the material supplied by Mr Ellis
justified that step. 79. Sir Thomas also considered the need for further enquiry
into the case and concluded that the disadvantages of a Commission of Inquiry
probably outweighed the advantages. Overall, while he did not see the matter
as free from difficulty, he concluded that the issues raised by Mr Ellis were
capable of resolution by the Court of Appeal. 80. However, Sir Thomas recommended that the terms of
reference to the Court of Appeal be enlarged in a number of respects. Namely, ·
to make it more explicit that the issues relating to reliability of
the children*s evidence included possible contamination of the evidence as
well as questions relating to the interview techniques and issues surrounding
the retraction by children of their evidence; ·
to enable the Court to reconsider certain pre-trial rulings relating
to the evidence of non-complainant children in light of the new expert
evidence; ·
to enable all three of the jury matters which had been raised in Mr
Ellis1 submission to be considered by the Court; and ·
to enable the further allegations of non-disclosure of relevant
material to be considered. 81. This led to a further Order in Council, dated 12 May
1999, covering 5 groups of grounds: those involving children's evidence,
those involving retractions by complainants, those relating to procedure at
trial, those involving members of the jury and those relating to
non-disclosure of material by the prosecution.
Second
reference back to the Court of Appeal 82. Five judges of the Court of Appeal
conducted a fresh hearing over four days and, in October 1999, the reference
appeal was dismissed. [Note
4] 83. In its judgement, the Court emphasised that its function
was to treat the reference as an appeal brought under the Crimes Act 1961.
Thus, the practice of the Court regarding fresh evidence applied. For this
reason, the Court had to analyse material placed before it to see whether the
matters covered were unknown, or not adequately appreciated, at the time of
trial. 84. In respect of many aspects raised in support of the
appeal, for example the mode of questioning by the interviewers, the Court
was satisfied that the issues were well known in 1992, and were canvassed at
the time. Some issues, for example the effect of the interviewers exercising
"social influence" during interviews, were described as better
understood than previously. In respect of others again, such as the use of
anatomically correct dolls, the Court considered that the weight of opinion
had changed since the time of the trial. However, the Court concluded that
the various concerns of substance which formed the subject of submissions to
the Court had all been identified and addressed in the course of the original
proceedings. 85. The Court considered that there might have been changes
in emphasis, or current knowledge might have led to a more acceptable
process, but this was speculative and could not justify allowing an appeal.
Referring back to the legal tests applied by an appellate court when faced
with "fresh" evidence, the Court said: “... 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.” 86. In reaching its conclusion, the Court of Appeal
emphasised that its ultimate function was to decide the case on its true
merits. That is, it was clear that they saw themselves as the ultimate
decision-makers as to whether there had been a miscarriage of justice
requiring one or more of the convictions to be set aside. In the context of
this discussion, however, the court made some further comments about its
role. 87. The Court of Appeal had concerns about the way in which
Mr Ellis had presented his case to it. A particular concern was that the
expert witnesses relied on by Mr Ellis had based their opinions on a
selective range of material, some of which was untested. The Court was also
concerned that Mr Ellis had relied on evidence which was not properly before
it, such as out of court statements by witnesses and from other people who
did not testify at trial. There had been no application for leave to adduce
this evidence. The Court was also asked to consider a number of articles,
reports and commentaries on the problems associated with obtaining evidence
from child complainants of their sexual abuse. 88 The
Court of Appeal emphasised that it was not a forum for reviewing or
evaluating the conclusions reached by various authors, some of which, in such
a difficult and constantly developing area, are conflicting. It noted that
such an exercise was more the function of a formal commission and stated
that: "There may be
matters which are worthy of, and could properly be addressed by, a commission
of inquiry, but the Court cannot undertake that kind of function under the
guise of an appeal under the Crimes Act 1961".
Third
application for Royal prerogative of mercy 89. On 18 October 1999, four days after the delivery of the
Court of Appeal judgement, Mr Ellis presented his third petition, seeking a
free pardon and the establishment of a Royal Commission of Inquiry into his
convictions.
Ministerial
Inquiry into the 90. The Court of Appeal was unanimous that there had not been
a miscarriage of justice on the Ellis case and on that basis, a possible
approach to the new application was to simply decline it. Against that,
however, was a concern that the comments of the Court of Appeal about the
fact that it was not a Commission of Inquiry could have left an impression
that there were relevant matters relating to the children's evidence which
had not been considered. Recognising the difficult issues surrounding
children's evidence, and the public disquiet about the Ellis case, the
government was concerned to ensure that there were no relevant aspects of the
case which had not been properly explored. On that basis, the government
considered it desirable to inquire further into those matters left open by
the Court of Appeal. 91. On 10 March 2000, the Minister of Justice appointed the
Right Honourable Sir Thomas Eichelbaum to inquire into the reliability of the
evidence given by the complainant children and to report on whether there
were any matters which would give rise to doubts about the children's
evidence to an extent with would render the convictions of Mr Ellis unsafe
and warrant the grant of a pardon. A copy of the terms of reference of the
Ministerial Inquiry is attached as Appendix Three. 92. The Ministerial Inquiry was not a general review of the
Ellis case, rather the terms of reference set boundaries on the ambit of the
inquiry. After consideration of the
scheduled reports and memoranda, Sir Thomas was to identify the currently
accepted best practice for investigating mass allegation child sexual abuse
cases, and the risks associated with a failure to adhere to best
practice. Having done so, he was
asked to assess whether the investigation in the Ellis case was conducted in
accordance with that best practice and report on whether there were any
matters which rendered Mr Ellis' convictions unsafe and which would warrant
the grant of a pardon. 93. Sir Thomas was asked to seek the opinions of at least two
overseas experts in the course of his inquiry. He appointed Professor Graham
Davies, of the University of Leicester, UK and Dr Louise Sas, of Ontario,
Canada to provide him with reports on whether there were features of the
investigation and/or interviews of the children which might have affected the
reliability of the children's evidence, and if so, their likely impact. 94. The experts worked independently and were unaware of each
others identity until they had delivered their reports. 95. Both of the international experts considered that the
interviewing was of an appropriate standard. In Professor Davies' opinion, it
was of high quality for its time. It was considered that it was of good
overall quality even by the standards of the time of the Ministerial Inquiry.
The experts did not consider that the interviews met best practice standards
in every respect, and Sir Eichelbaum noted that, if that degree of perfection
were the test, few if any interviews of this kind would pass. 96. Sir Thomas concluded that questioning and investigations
by some parents exceeded what was desirable and had the potential for
contaminating the children's accounts. However, Dr Sas considered that the
evidence of the six remaining "conviction" children had not been
seriously affected and that their evidence was reliable. Professor Davies did
not express a final view on the issue of contamination but did not believe
that cross-talk alone was sufficient to explain the similar accusations made,
particularly in relation to occurrences in the creche toilets. Sir Thomas
himself was also unconvinced that cross-talk between parents, and excessive
questioning by them, could "account for the detailed, similar accounts
given by so many children, in separate interviews stretching over many
months". 97. Sir Thomas spent over 400 hours studying the tapes, trial
transcripts, Court of Appeal decisions, the experts' opinions and other
material relevant to Mr Ellis' convictions. His overall conclusion was that
the case advanced on behalf of Mr Ellis failed to satisfy him that the
convictions were unsafe, or that a particular conviction was unsafe. He noted
that "it fail[ed] by a distinct margin; I have not found this anything
like a borderline judgement". In reaching his conclusion, Sir Thomas
observed as follows: "... After the
investigations and the interviewing there was an unsually [sic] exhaustive
depositions hearing, the record extending to more than 1000 pages. Before
being submitted to the jury the tapes and transcripts were subjected to close
scrutiny in contested pre-trial applications. In scope and number, the
pre-trial applications were exceptional (Judgment No. 1 recorded that in
preparation for that hearing alone, in addition to reading the depositions
the Judge had viewed about 39 hours of tapes). The points which this Inquiry
has considered about the quality of the interviewing, and the possibilities
of contamination, were all traversed in detail, and were the subject of a
series of careful judgments in the High Court. As a result of rulings before
and during the trial, some charges were dismissed. There was a long and
thorough trial, at the conclusion of which the jury had a lengthy retirement
considering the charges. After trial the pre trial rulings, as well as all
other aspects of the investigation, the interviewing, and the trial process,
were open for challenge in the Court of Appeal. The Court of Appeal
considered the case twice, once as a court of three judges in 1994, then as a
court of five in 1999. Only one judge sat on both appeals, so seven different
Court of Appeal judges were involved. In the appeals, the merits of the
investigation and the interviewing were canvassed on broadly the same grounds
which have been urged before this Inquiry. None of the judges was prepared to
uphold the challenges. Appropriately, this background has not prevented a
further Inquiry into the same subjects. Full legal processes notwithstanding,
the occasional miscarriage of justice can occur, and the procedure of
petitioning the Governor-General, together with any resulting Inquiry, is
available as a further protection. What must be clear is that Mr Ellis' case
has had the most thorough examination possible. It should now be allowed to
rest".
The
request for a Royal Commission of Inquiry Relevant law relating to Commissions
of Inquiry 98. There is little practical difference between a Royal
Commission of Inquiry and a Commission of Inquiry. The principal distinction
is in the instrument of appointment. Royal Commissions of Inquiry are constituted
under the powers conferred on the Governor-General by the Letters Patent.
Commissions of Inquiry, on the other hand, are established under the
Commissions of Inquiries Act 1908. However, both are governed by that Act. 99. Section 2 of the Commissions of Inquiry Act 1908 provides
that a Commission of Inquiry may be appointed to inquire into and report upon
any question arising out of or concerning any of the following: a.
the administration of Government; b.
the working of any law; c.
the necessity or expedience of any legislation of the Crown; d.
the conduct of any officer in the service of the Crown; e.
any disaster or accident involving injury or death of the victim or
the risk of it; or f.
any matter of public importance. Request/or a Royal Commission of
Inquiry 100. We understand that the impetus for the petition is Lynley
Hood's book A City Possessed.
However, the petition does not spell out what the purpose or purposes are
sought to be achieved by the Inquiry and this would need to be clarified before
we can comment on the petition in more depth. In addition, the petitioners
have yet to present their arguments for suggesting a Royal Commission of
Inquiry is necessary. Therefore, at this stage, we can make only general
observations about some of the issues that will need to be considered. What can an Inquiry realistically
achieve? 101. An important question in deciding whether there should be
an inquiry which focuses on the circumstances of the Ellis case is whether a
useful purpose can be served. Some matters on which there are public concerns
are not amenable to an authoritative answer giving near absolute reassurance
to the public that the truth has been found. The question which should be
asked is whether any inquiry can give a more authoritative answer than the
jury trial, the Court of Appeal (on two separate occasions) and the
ministerial inquiry. 102. We are unsure whether what the petitioners intend is that
there should be an attempt to rehear the facts of the case. If this is what
is proposed, there must be a real question about whether this would bring
about any greater resolution of the facts than was achieved at the time of
the trial. It is now over 12 years since the events at the creche. The
memories of the people involved will inevitably have faded. Witnesses at the
trial had very polarised views about the case, and the ongoing scrutiny and
publicity over the years is likely to have entrenched these even further.
There are particular problems when considering the position of the children.
It is difficult to see how they could be expected to give evidence that would
be any more reliable now than it was then- On the other hand, any suggestion
that a further inquiry into the facts should disregard the children's
accounts is equally problematic. 103. If the petitioners do not intend a full
"rehearing" of the facts of the case, it will be necessary to
explore with them further what they consider the parameters of an Inquiry
should be. The integrity of the criminal justice
system 104. As we have outlined in the first part of this report, the
case has already had very extensive consideration within the criminal justice
system. Invariably, the resolution of allegations of sexual offending turns
on the respective credibility of the complainant, the accused and other
relevant witnesses. The Ellis case is no different. As a society, we rely on
the unanimous opinion of a jury following a trial presided over by a judge to
assess that credibility and to reach conclusions on whether guilt has been
proved beyond reasonable doubt. We then rely on the Court of Appeal to ensure
that the process which was followed at the trial in reaching an assessment
that an accused was guilty is appropriate and that the verdict is not
unreasonable. This appellate view includes ensuring the jury had before it
the information it should properly have had, and did not have information it
should not have had. The outcome of this case is the Court of Appeal has on
two occasions accepted that the jury was able to decide all issues raised by
the case and there was no basis for interfering with the unanimous verdicts. 105. It is a serious step to inquire
further into a case once it has been finally resolved through the criminal
justice system. That is not to say that there should not be a further enquiry
if new evidence emerges, there is evidence of a system failure or for some
other good reason. [Note
5] There is clearly anxiety about the case from a section of the
public who have not had the opportunity of seeing and hearing the witnesses.
This is not, in itself, a sufficient reason for interfering with the outcome
of case which has been through the system with all of its checks and
balances. A book has also been published which espouses a particular theory
of the case. The appropriate response now is to ask whether the book reveals
or is based on any significant matters that have not been fully or properly
considered already. If such matters do exist, they could form a basis for
some type of further inquiry, whether or not a Royal Commission. Whether the issues are more
appropriately dealt with by the Privy Council 106. We understand that consideration is being given by Mr Ellis
to an appeal to the Privy Council. One of the complaints that has been made
in this case is that the jury was unable to hear the "whole case"
because of rulings by the trial Judge about admissibility of evidence. These
rulings have since been upheld by the Court of Appeal If the essential basis
of the concern is about rulings of law by the courts, this would seem an
inappropriate topic for an inquiry, having regard to the constitutional
conventions surrounding the separation of powers. This kind of issue is more
appropriately dealt with by the Privy Council than a Commission of Inquiry. Impact on the child complainants and
their families 107. Regard must also be had to the impact that a further
inquiry focused on the Ellis case would have on the children complainants.
Whilst the system must always guard against miscarriages of justice, it must
also respect the need to protect victims of crime. Giving evidence in the
circumstances of sexual abuse allegations is traumatic. Much has been done to
improve that process over the years, but a crucial component of the system is
finality. Once the criminal justice process has run its course, it is
important that victims of crime can feel that they can put the matter behind
them. There should be very cogent reasons for officially extending the
process, especially if that would raise issues concerning the truthfulness of
the evidence of the victims.
108. There continues to be a significant degree of public
concern over the verdicts in this case. Opinions can legitimately differ over
the weight to be accorded to such disquiet, particularly where it is
contributed to by public releases of information by supporters of a convicted
person. Nevertheless, this is probably
one of those cases where universal public satisfaction is not a realistic
goal. Some will always have doubts either way. In a case that was very much
about credibility, there must be a real question as to whether anything more
than the usual processes can ever achieve a better outcome, whether any
purpose can be served by a Commission of Inquiry. 109. The Ministry of Justice view is that, in such
circumstances, the onus is on the petitioners to make out a cogent case that
there are relevant and significant matters that have not already been fully
and properly examined and which could have a material outcome on the case. 110. If the Committee wishes, we are available to report further
once the petitioners have outlined their arguments.
Appendix 1 The 16 counts upon which the
petitioner was found guilty related to the following children: Child A Count 1. Indecent assault alleging petitioner
placed his hand on her vagina. Count 2. Inducing her to put her hand on his
penis. Count 3. Indecent Assault alleging his hand
touched her vagina/anus. a) These
offences were alleged to have occurred between 15 December 1986 (count 1) and
between 1 May 1986 and 1 May 1988 (counts 2, 3) b) This
child is referred to in the Court of Appeal Judgment as Child A (sometimes
referred to at Depositions as Child 1). Child B Count 4. Indecent Assault alleging the placing of
the petitioners hand on her vagina. a) This
offence was alleged to have occurred between 1 February 1988 and 30 July
1989. b) This
child is referred to as Child B in the Court of Appeal Judgment (sometimes
referred to at depositions as Child 2). Child D Count 6. Indecent Assault alleging the
petitioner urinated on his face. a) This
offence was alleged to have occurred between 1 March 1989 and 30 October
1991. b) This
child is referred to as Child D in the Court of Appeal Judgment (sometimes as
Child 13 in the Depositions). c) The petitioner was found not guilty of
Count 7 namely; doing an Indecent Act by touching Child D's anal area
with a stick. Child F Count 9. Doing an Indecent Act by urinating on
her face. Count 10. Inducing her to have a bath with him. a) These
offences were alleged to have occurred between 3 June 1988 and 1 December
1990. b) This
child is referred to as Child F in the Court of Appeal Judgment (sometimes
referred to as Child 3 in the depositions). The petitioner was
found not guilty upon two counts relating to this child; namely: Count 11: Attempting to have sexual intercourse with her, and Count 12: Touching her bottom with a needle. Child G Count 16: Inducing an indecent act by having a bath
and fondling his penis. Count 17: Indecent Assault by placing his
penis against his anus. Count 18: Unlawful sexual connection by putting his
mouth over his penis. a) These
offences were alleged to have occurred between 1 February 1989 and 1 March
1991. b) This
child is referred to as Child G in the Court of Appeal Judgment (sometimes
referred to as Child 9 in the depositions). The petitioner was acquitted upon Count 19; indecent act by hitting his
genital area and putting a needle on his penis. Child H Count 20: Unlawful sexual connection by putting his
penis in her mouth. Count 21: Indecent act by putting his penis against
her vaginal area. Count 22: Indecent act by putting his penis against
her anal area. Count 23: Indecent assault by being a party
to the act of an unknown man putting his penis against her vagina. a) These
offences were alleged to have occurred between 1 May 1989 and 30 July 1991. b) This
child is referred to as Child H in the Court of Appeal Judgment (sometimes
referred to as Child 10 in the depositions). Child K Count 27: Unlawful sexual connection by putting his
penis in her mouth. Count 28: Indecent act by putting his hand on her
vagina and anus. a) These
offences were alleged to have occurred between 1 January 1989 and 31 January
1991. b) This
child is referred to as Child K in the Court of Appeal Judgement (sometimes
referred to as Child 6 in the depositions).
Appendix 2 The Scope of the Royal Prerogative of
Mercy The source of the Governor-General's power to exercise the
Royal prerogative of mercy is Clause XI of the Letters Patent Constituting
the Office of Governor-General in ·
Granting a free pardon (which has the effect of wiping the conviction
and sentence) ·
Granting a pardon subject to conditions (substituting one form of
punishment for another, leaving the conviction standing) ·
Granting respite of the execution of any sentence (a reduction without
a change in the nature of the sentence) ·
Remitting the whole or part of any sentence, penalty or forfeiture In addition, section 406 of the Crimes Act 1961 provides a
statutory adjunct to the prerogative of mercy. Since 1945, Parliament has empowered
the Governor-General, when considering an application for exercise of the
prerogative of mercy: To refer the question of the applicant's conviction or
sentence to the Court for further consideration (section 406(a); (a)
To seek the Court of Appeal's assistance on any point arising in an
application (section 406(b)). Similar provisions exist in other jurisdictions allowing
the Executive to refer a case back to the Court. The vast majority of applications for the exercise of the
Royal prerogative of mercy in By convention, the prerogative of mercy is exercised by
the Governor-General on the advice of the Minister of Justice. In advising
the Governor-General on an application alleging a miscarriage of justice, the
main options available to the Minister of Justice are: ·
To recommend that the application be declined; ·
To recommend that the applicant's case be referred back to the Court
of Appeal; ·
To recommend that the applicant be granted a full pardon. Pardon - section 407. Crimes Act 1961 There have been few instances in In terms of section 407 of the Crimes Act 1961, a
convicted person who is granted a free pardon is deemed never to have
committed the offence. In contrast to
the position in Applications for a conditional
pardon are rare. In some jurisdictions conditional pardons are granted to
commute the death penalty to life imprisonment, or provide a pardon "in
advance" to a person implicated in a crime on the condition the person
provides assistance to the prosecution: see R v Milnes (1983) 33 SASR 211,
216. The latter is facilitated in Referral back to the Court - section 406, Crimes Act 1961 Though some applications for the exercise of the
prerogative of mercy seek a pardon, most applicants seek reference of their case
to the Court of Appeal under section 406 of the Crimes Act 1961. Section 406 provides: "406
Prerogative of mercy (a) Refer the question of the conviction or sentence to the Court
of Appeal or, where the person was convicted or sentenced by a District Court
acting in its summary jurisdiction or under section 28F(2) of the District
Courts Act 1947, to the High Court, and the question so referred shall then
be heard and determined by the Court to which it is referred as in the case
of an appeal by that person against conviction or sentence or both, as the
case may require; or (b) If
he desires the assistance of the Court of Appeal on any point arising in the
case with a view to the determination of the application, refer that point to
the Court of Appeal for its opinion thereon, and the Court shall consider the
point so referred and furnish the Governor-General with its opinion thereon
accordingly." The applicant need not have appealed against conviction or
sentence before seeking a remedy under section 406, though it is usual for
appeal rights to have been exhausted before an application for the
prerogative is made. A reference under section 406(a) leads to the Court
hearing and determining the matters raised as if it were dealing with an
appeal. In effect, this section enables the Governor-General to return a case
to the Courts so they can determine whether a miscarriage of justice has
occurred. Alternatively, under section 406(b), the Governor-General
can refer one or more points arising from the application to the Court of
Appeal for its opinion. The prerogative application, informed by that
opinion, is then determined by the Governor-General acting on ministerial
advice: R v Thomas [1978] 2 NZLR 1, 5 (PC). The Basis for the Exercise of the
Prerogative of Mercy The Royal prerogative of mercy provides a unique
constitutional safeguard against mistakes in the criminal justice process
(Burt v Governor-General [1992] 3 NZLR 672; R v Secretary for State for the
Home Department, exparte Bentley [1993] 4 All ER 442). There is no precise
definition to the boundaries that govern the exercise of the prerogative of
mercy to address a miscarriage of justice. The Courts have made it clear
that, if it is to fulfil this role, it would be inappropriate to impose rigid
limits on its exercise. ·
If a matter has been properly determined by the court system, with
then opportunity for the parties to produce and test all relevant evidence,
and to exercise appeal rights, the Executive will usually be very reluctant
to interfere. To do so would require the Executive to substitute its own
judgement about matters which it is much less well placed to determine. This
would tend to compromise the finality of jury and judicial decisions and
undermine the credibility of the criminal justice process. ·
If a new matter (usually new evidence) arises that for some reason was
not able to be determined by the court process, and the Executive considers
that it points to a possible miscarriage of justice, the Executive will
usually refer the case back to the Court for further consideration rather
than make a final decision itself. Again this is because the Courts are best
equipped to decide questions of criminal responsibility. It is undesirable,
in general, for the executive branch of government to consider the grant of a
free pardon in circumstances where the issues are still capable of being
considered and determined by the courts. Criteria for deciding whether the
exercise of the Royal prerogative is justified Section 406(a) Against this background, the first option then is to
consider whether a case should be referred back to the Court under section
406(a) of the Crimes Act 1961. ·
First, the evidence raised by a petitioner must normally be
"fresh evidence" not available to the applicant at the time of
trial. ·
Second, that evidence must be relevant, credible, and of such a cogent
nature that it is capable of pointing to a likely miscarriage of
justice. The word "capable" is underlined because the
Ministry of Justice does not endeavour to decide whether a miscarriage of
justice has occurred. That would set the threshold for exercise of the
Royal prerogative too high. It is for the Court of Appeal to determine
(either on appeal or on a referral from the Governor-General) whether there
was a miscarriage of justice - see section 385(l)(c), Crimes Act 1961. The
Ministry looks for evidence that is sufficiently strong that it could
be entertained by the Court of Appeal. Court of Appeal criteria Under section 406(a), referrals back are to be dealt with
in the same manner as an appeal against conviction. However, in R v Morgan [1963] NZLR 593, North P
referred to the wide range of matters that may have been taken into account
by the Executive in determining whether to refer a case back, and held that: "the only rule that the Court can apply is to decide
each application on its merits, the Court not treating itself as bound by the
rule of practice if there is reason to think that to do so might lead to
injustice or the appearance of injustice.'* In R v Sims 19
December 1997, CA489/97, after considering the above passage from Morgan, Henry J held: "Although that dictum could indicate a broad approach
is to be adopted, [the Court will] still have regard to general requirements
as to the reception of further evidence, although at the same time taking a
less strict view than in an ordinary criminal appeal." In Collie v R
[1997] 3 NZLR 653; (1997) CRNZ 283, following R v Morgan [1963] NZLR 593, Eichelbaum CJ held that: "The Court should be given information of the
considerations which have caused the Governor-General in Council to make the
reference. If, as would invariably be the case, the appellant wished to rely
on the material placed before the Governor-General, an application for leave
to adduce fresh evidence is required. The normal rule that fresh evidence
will not be received unless it is shown that such evidence is new or fresh in
the sense that it was not available at the trial is not always applied with
rigidity if there is reason to think that to do so might lead to injustice,
or the appearance of injustice." Similarly, in R v
Zachan 11/8/95, CA304/94, Hardie Boys J said: "The Court has jurisdiction to allow an appeal on the
ground of the discovery of fresh evidence by virtue of section 385(l)(c) of
the Crimes Act 1961. This provides that an appeal against conviction is to be
allowed if the Court is of the opinion that on any ground there has been a
miscarriage of justice. The Court will normally require that the evidence be
fresh in the sense that it was not available at the trial; and that it be
credible and cogent in the sense that if given along with the other evidence
in the case, the jury might reasonably have been led to return a different
verdict. The overriding test however is the interests of justice." In exceptional cases, even if evidence is not strictly
fresh, it may be sufficient to show that an avenue of inquiry was not
explored at the time of trial "because, for good reason, it had not
occurred to [the defendant] or his advisors": R v Su 5 July 2000,
CA407/00. "The same approach is appropriate where other
principles which are generally applicable to an ordinary appeal are relevant.
For the appellant Mr Scotter submitted that there has been a miscarriage of
justice resulting from trial counsel's failure adequately to put before the
jury matters favourable to the defence which may have led to a different
verdict. This leads directly to such cases &sR vPointon [1985] 1 NZLR 109
... where the description of "radical mistake" has been applied ...
This being a section 406 reference however, care must be taken not to adopt a
strict or rigid approach, but to consider whether overall in the particular
circumstances, and having regard to the reasons for the reference, justice
has been seen to be done." Ministry of Justice approach to section 406(a) In determining whether the exercise of the Royal
prerogative is justified, the Ministry of Justice therefore takes into account
the following matters. ·
Petitioners asserting miscarriage of justice should as a general rule
first have exhausted all their legal remedies. ·
Is there any "fresh" evidence? This means evidence that was
unavailable at the time of the trial, or not reasonably discoverable by the
exercise of due diligence, or for some reason was not investigated or relied
on. ·
The fresh evidence must be credible, and capable of pointing to a
likely miscarriage of justice, in the sense that it might reasonably have led
the jury to return a different verdict. ·
Deficiencies in the conduct of the trial that would provide grounds
for a normal appeal may also be sufficient, depending on the extent to which
they have been canvassed at any previous appeal. ·
The paramount question is the interests of justice. The prerogative of
mercy operates as a safety net and the criteria must be flexible enough to
accommodate miscarriages that have occurred in a variety of ways. Sir Thomas Thorp has said that another way of looking at
the matter is that the critical threshold question for all claims of
miscarriage of justice is whether the material submitted raises "a
serious doubt" as to the adequacy of proof of guilt. If an applicant has established good grounds for the
exercise of the Royal prerogative, the normal course will almost always be to
refer the case back to the Court of Appeal. Pardons The exercise of the Royal prerogative of mercy by the
Governor-General to grant a free pardon is extremely rare in There are essentially two kinds of case where a pardon may
be entertained as the appropriate response to an apparent miscarriage of
justice. ·
Where there is compelling evidence that a person could in no
circumstances have been properly convicted - that is, in cases where no
reasonable jury, apprised of all the relevant evidence, could have found the
accused guilty. (In some instances, the evidence available could go beyond
raising this kind of doubt and amount to affirmative evidence of innocence.) ·
The case is not susceptible to determination by a court for reasons
such as the lapse of time since the incident, the unavailability of a key
witnesses like a complainant in a sexual case, the deterioration or loss of
important evidence, or, generally, that it is in the interests of justice to
bring the matter to a conclusion by way of pardon. Even in the second instance, the Executive will usually be
cautious about making the judgement itself that the Courts cannot determine
the issues. Unless the case for concluding that there was a miscarriage of
justice is very strong, the prudent course may still be to refer the matter
to the Court of Appeal under section 406(a) and let the Court decide, if it
quashes the conviction, whether to order a new trial or enter an acquittal. The Saifiti and Thomas cases are examples where a free
pardon was granted because it was concluded that the applicant should never
have been convicted. Atenai Saifiti, convicted for assaulting a prison officer
in a prison brawl, was pardoned in 1972 after the Chief Ombudsman concluded
that "there are substantial grounds for believing that Atenai Saifiti
was innocent of the offence for which he was convicted". Arthur Allan Thomas was pardoned in 1979, after Robert
Adams-Smith QC was asked by the Prime Minister of the day to conduct an
inquiry. He concluded that while there was "nothing arising as the
result of [the] investigation which established ... that Arthur Allan Thomas
is innocent of the murders", there was "real doubt whether it can
properly be contended that the case against Arthur Allan Thomas was proved
beyond all reasonable doubt". Section 406(b) The use of section 406(b) is so infrequent that is not
possible to crystallise criteria for its use. The best way to put it is that
this section provides a mechanism whereby the Executive can seek the
assistance of the Court of Appeal on specific points in circumstances where
referral of the conviction is not warranted or not apt. The leading case in relation to the section is R v Thomas [1978J 2 NZLR 1. In that
case, the Privy Council noted that, in contrast to section 406(a) of the Crimes
Act 1961, the Court's role under section 406(b) is not to make a formal
determination of the questions referred to it. Rather, the Court merely
furnishes an opinion for the Governor-General's consideration. The
Governor-General is not fettered by that opinion, and retains the power to
determine the application once it is received. In R v Morgan,
on a reference under section 406(a) of the Crimes Act, the Court of Appeal
noted that: "If no new matter has come to light which in the
opinion of the Executive Council makes a reconsideration of a ground of
appeal necessary or desirable, but nevertheless the Executive Council,
contemplating the exercise of the prerogative of mercy, desires the
assistance of the Court on any specific point arising in the case, then it
would appear to us that generally speaking it would be more appropriate for
the reference to be made pursuant to subs. (b), at all events where the
appellant has already exhausted his rights of appeal."
Appendix 3
(1) (a) Review
the reports and memoranda listed in the schedule and; (i) identify the processes, practices and procedures currently
accepted internationally as best practice for investigating mass allegation
child sexual abuses and interviewing children in these cases; and (ii) identify any risks associated with a failure to adhere to
best practice. (b) On the basis of the evidence given at both the depositions and
the trial, assess whether the investigation into the events at the
Christchurch civic crèche case and interviews of children were conducted in
accordance with best practice as now understood. (c) If [Sir Thomas concludes] that the interviews were not
conducted in accordance with best practice, identify the nature and extent of
any risks which arise, which might affect the assessment of the reliability
of the children's evidence. In conducting this task [Sir Thomas is] not
required to attribute or apportion blame to particular individuals who
undertook the interviews. The focus of the task is on the evaluation of
systems and techniques and their impact on the children. In undertaking the tasks referred in (1) above [Sir Thomas
is] to invite, and consider, written submissions from the Crown Law Office
(on behalf of the Police, Department of Social Welfare and Specialist
Interviewers), Peter Ellis, the families of children who gave evidence at the
Ellis trial, and the Commissioner for Children. (2) For the purpose of the assessment and the
conclusions under (1) above, [Sir Thomas is] to: (a) Seek and evaluate opinions from at least two internationally
recognised experts (if possible with experience in mass allegation child
sexual abuse) on whether there are features of the investigation and/or
interviews of the children (on the basis of the evidence at depositions and
trial) which may have affected the reliability of the children's evidence,
and if so, their likely impact. (b) In selecting the experts from whom opinions are to be sought
[Sir Thomas is] to: (i) invite and consider submissions from the Crown Law Office, Mr
Peter Ellis, the families of children who gave evidence at Mr Ellis's trial
and the Commissioner for Children; and (ii) make such further inquiries as [Sir Thomas] considers
necessary to ensure that the experts from whom opinions are sought reasonably
reflect the range of professional views. (3) In light of [Sir Thomas's] assessment and
conclusions in (1) and (2) above, [he is] to report by 31 August 2000 on
whether there are any matters which give rise to doubts about the assessment
of the children's evidence to an extent which would render the convictions of
Peter Hugh McGregor Ellis unsafe and warrant the grant of a pardon. Schedule ·
Report of the Inquiry into Child Abuse in ·
Report of the Inquiry into the Removal of Children from Orkney Isles
in February 1991; ·
The 1992 Memorandum of Good Practice ( ·
The Joint ·
The Final Report of the Royal Commission into the ·
Law Commission. Total Recall? The Reliability of Witness Testimony. A
Consultation Paper (July 1999); and ·
Analysis of Child Molestation Issues Report No 7, A Report by the
1993/4
Footnotes Note 1 Davidson v Note 2 Note 3 R v Ellis (1994)12CRNZ172 Note 4 R v Ellis [2000] 1NZLR513 Note 5 There
has, of course, already been an inquiry outside the ordinary court process
into an aspect of particularly concern in this case. The Eichelbaum Inquiry
looked at issues which might have been seen to have been left outstanding by
the Court of Appeal, namely an assessment of contemporary expert
understanding of issues surrounding children's evidence. Note 6 See
ss 77A and 173 Summary Proceedings Act 1957 |
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