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Index 1 The
Petition 2 Preamble 3 Summary 4 The
Christchurch Civic Creche Case 5 Calls
for an inquiry into the Creche Case (1993-2003) 6 Questions
raised by the Creche Case 7 The
need for a Royal Commission of Inquiry 8 Miscarriages
of Justice: Historical Precedents 9 Attachment 1: Notes on 177
signatories to the petition
Submission
We the undersigned
petition the House a/Representatives to urge the Government to establish a
Royal Commission of Inquiry, presided over by a Judge or Judges from outside
the New Zealand jurisdiction, to enquire into all aspects of the
investigation and legal processes relating to the Christchurch Civic Creche
case.
1. This
submission was prepared by Lynley Hood, author of A City Possessed: the 2. I
wish to appear before the committee to speak to this submission. I can be
contacted at 3. I
wish that the following persons appear in support of this submission
(depending on their availability at the time of the oral hearing): a. Assoc.
Prof. James Allan, Law, b. Prof.
Brian Brooks, Law, c. Prof.
John Burrows, Law, d. Assoc,
Prof. Denis Dutton, Philosophy, e. Prof.
John Pratt, Criminology, f. Bernard
Robertson, editor, NZ Law Journal. g. (Possibly)
Two MPs from different parties who have signed the petition.
1 Summary 2 The 3 Calls for an inquiry into the Creche
Case (1993-2003) 4 Questions raised by the Creche Case 5 The need for a Royal Commission of
Inquiry 6 Miscarriages of Justice: Historical
Precedents 7 Notes on 177 signatories to the petition
8 Attached - Comments on the Ministry of
Justice discussion paper
4 The
Christchurch Civic Creche case ['the creche case'] was one of the most
extensive, expensive and controversial criminal investigations in 5. Public
and professional concern about the investigative and legal processes involved
in the creche case has grown steadily since allegations of large scale sexual
offending against children by creche staff first surfaced in 1992. 6. With
the publication of A City Possessed
in 2001, a detailed account of the entire case became available to the
reading public. 7. An
807-signature petition was presented to Parliament on 24 June 2003. The same
day, in response to public demand, a second, identical, petition was opened
to allow anyone who wanted to sign to do so. The second, 4000+ signature
petition will be presented to Parliament in September. The petitioners
request that both petitions be considered together. 8. In
the history of 9. Signatories
include two former Prime Ministers, four former cabinet ministers, 26 current
MPs (from all parties), a retired High Court judge, a retired District Court
Judge, 12 law professors, 12 Queens Counsel, four psychology professors,
professors of medicine, philosophy, medical ethics, sociology and education,
scores of lawyers and teachers, plus writers, journalists, artists,
librarians, nurses, hairdressers, builders, engineers, booksellers, checkout
operators, counsellors, farmers, taxi drivers, doctors, wine makers,
architects, firefighters, and indeed New Zealanders from all walks of life. 10. As evidenced by these petitions, and also by a March 2003
resolution of the Criminal Bar Association of Canterbury calling for a Royal
Commission of Inquiry into the case (carried 23-0, with 1 abstention) and a
public opinion poll commissioned by the Christchurch Press on 26-28 July 2003
(showing that 68% of Cantabrians want a Commission of Inquiry, 17% do not,
and 16% don't know), there is now a widespread public and professional
consensus: a. That
in the Christchurch Civic Creche case the justice system failed, and failed
catastrophically at many levels, and has been unable to self-correct. b. That
the creche case has implications for the wider community that we ignore at
our peril. These relate to the harm being inflicted on society by current
campaigns to protect children from vaguely defined sexual dangers by
criminalising and scapegoating a wide range of people and behaviours. The
power and capriciousness of the laws and attitudes wrought by these campaigns
have driven a destructive wedge between all adults and all children. c. That
the implications of the creche case are of greatest concern to adult males,
to teachers, and to people who work with troubled and needy children. For all
these people, the fear of false allegations, and the risk that any expression
of physical affection will be interpreted as sexual abuse, is an ever-present
anxiety. d. That
until the issues raised by the creche case are fully and independently
addressed New Zealanders will be as much at risk of having their lives, their
families and their communities thrown into turmoil by sex abuse hysteria as
the people of e. That
because everyone involved in the creche case was, in one way or another, a
victim, the aim of an inquiry should not be to blame or punish, but to
establish, as far as possible, the truth about what happened and why it
happened, and to ensure that any lessons to be learnt, are learnt. f. That
the child complainants (now young adults) are entitled to know the truth. g. That
the proper constitutional mechanism by which the creche case may be fully
examined, and public confidence in the justice system restored, is a Royal
Commission of Inquiry. h. That
until the concerns raised by the creche case are resolved in a manner
acceptable to most New Zealanders they will not go away. 11. In November 1991, following her child's ambiguous comment,
his mother set up her own support group and contacted the police. By June
1993, more than 100 past and present creche children had been subjected to
months of persistent and leading questioning, 12 creche workers had been
deprived of their jobs, their careers and their previously unblemished
reputations, five creche workers had been arrested and charged with serious
sexual offences, and one - Peter Ellis - had been convicted and sentenced to
10 years in prison. 12. In December 1993, the application for costs by the four
women creche workers who had been arrested and discharged was declined by the
High Court. 13. In July 1994, the oldest and most credible of the child
witnesses retracted her allegations. She said she had lied about indecent
touching and forced contact with Ellis's penis because she thought that was
what the interviewer wanted her to say. The Court of Appeal quashed the
convictions relating to that child but upheld Ellis's remaining convictions
and left his sentence unchanged. 14. In March 1995, the 11 women creche workers who had lost
their jobs when the crèche closed won their unjustified dismissal case in the
15. In September 1996 the Court of Appeal overturned the 16. By 2001, the conviction of Peter Ellis had been the subject
of two Court of Appeal hearings, three petitions to the Governor-General, and
a Ministerial Inquiry. Both Court of Appeal hearings and the Ministerial
Inquiry concluded that Ellis's guilt had been proved beyond reasonable doubt. 17. Each of the criminal and employment court proceedings, and
the Ministerial Inquiry, addressed a narrow range of issues. No full and
independent inquiry into the entire case and the wider issues it raises has
ever been undertaken. 18. Correspondence to successive Ministers of Justice obtained
under the Official Information Act shows that, since 1993, the creche case
has been of ongoing concern to a wide range of New Zealanders. The failure of
successive Governments to address these concerns has served only to
exacerbate them. 19. In May 1993, two
weeks before the end of the Ellis trial, former creche supervisor Gaye
Davidson wrote to the Attorney-General (Paul East) and the Ministers of
Justice (Doug Graham), Police (John Banks), Social Welfare (Jenny Shipley)
and Education (Lockwood Smith) on behalf of the Civic Child Care Inquiry Organisation
(a group that included "the four women whose charges were dismissed,
other childcare workers who lost their jobs, parents of children who were at
the Centre, parents of children who were interviewed as part of the inquiry,
the parents of a child who was the subject of charges brought against Peter
Ellis at depositions stage but subsequently dropped... a number of
professional people... and other people in the community'). 20. Davidson sought 'the establishment of an official inquiry
into matters arising from the investigation of sexual abuse allegations
concerning the Christchurch Civic Childcare Centre (Footnote 1) the closure of the Centre and the prosecution of
various workers associated with the Centre'. She outlined 20 concerns
relating to the conduct of the investigation by police and social welfare
officers, the involvement of therapists and counsellors in the process, the
laws under which they operated, the damage done to innocent people and the
lack of accountability of those responsible, and cited inquiries into the
Cleveland and Orkney child sexual abuse scandals as appropriate models for a
New Zealand inquiry. She stressed that an inquiry was necessary, regardless
of the outcome of the Ellis trial. 21. In June 1993,
Peter Ellis was convicted on 16 counts of abusing 7 children in his care. 22. In July 1993, the
Attorney-General and the Ministers of Justice, Police, Social Welfare and
Education rejected Davidson's call for an inquiry. 23. In March 1995
Deputy Solicitor-General Lowell Goddard [now Justice Goddard] considered
submissions for an inquiry into the creche case from: the Civic Child Care
Inquiry Organisation (1993) [see 19 & 20 above]; Mr R. Glover, president
of the Criminal Bar Association of Canterbury (1993); Mr G. Nation, barrister
(1994); Mr J. Rowan, barrister (1994); Dr K. Le Page, psychiatrist (1995);
and Mr G. Panckhurst QC [now Justice Panckhurst], barrister (1995). 24. Panckhurst's submission was based on his experience of
representing the creche staff in the 25. Le Page's submission was based on his experience as an
expert witness for the defence in the Christchurch and Wellington creche
cases (Footnote 2), '[The
legislation s,23G of the Evidence Act under which your cases are tried is
scientifically invalid and as a consequence innocent people have been
imprisoned, others smeared for life and families have been destroyed,' he
wrote. 26. The other submissions suggested that the Civic Creche case
was part of a wider problem. ‘I do not believe that a Government concerned
with the administration of justice can simply sit back and watch while the
public debate continues,' Nation wrote. ‘[A]s long as these inadequacies in
the system continue, children, families and those falsely accused are being
hurt.' 27. In May 1995,
Labour spokesperson on Justice Phil Goff wrote: 'I believe that it would be very
useful to conduct a full inquiry into the wider issues which have emerged
from the Christchurch Civic Childcare case as well as the specific issues
involved in the case itself.' 28. In June 1995,
Attorney-General Paul East announced that there would be no inquiry. 'Where
the Courts have determined issues in the course of legal process, governments
in the past have not considered inquiries desirable unless there is evidence
of abuse of the court process or a failure of the legal system itself,' he said. 29. Panckhurst replied: 'I believe a siege mentality has
developed with regard to this matter. Endeavour was made to raise the
concerns identified in my letter in a way which was restrained, constructive
and responsible. I fear that the damage which has been done to so many
innocent people will mean the Civic Creche case will not go away. The blanket
decision of the State agencies to resist any review of their actions, will
simply aggravate a situation which is already of widespread concern . . . ’ 30. In early December 1997,
a TVS 20/20 documentary revealed: that the foreman of the Ellis jury had
officiated at the Crown Solicitor's wedding; that, during the crèche
investigation, senior police were concerned about the mental stability of the
officer in charge; and that, during the Ellis trial, the partner of a juror
worked in the same office as a witness for the prosecution. 31. In-house Police and Crown Law Office investigations concluded
that the 20/20 revelations were of no significance. 32. In late December 1997,
Peter Ellis petitioned the Governor-General for the Royal Prerogative of
Mercy. 33. In February 1998,
the Ellis case was referred back to the Court of Appeal under s.406(a) Crimes
Act (1961). 34. In June 1998, an
application to extend the scope of the reference under s.406(a) so that the
entire Ellis case could be reconsidered was rejected by the Court of Appeal. 35. In November 1998,
Peter Ellis petitioned the Governor-General for a free pardon and a Royal
Commission of Inquiry or, alternatively, a Royal Commission of Inquiry and
for the whole case to be referred back to the Court of Appeal. Sir Thomas
Thorp was asked to provide an opinion on the petition. 36. In January 1999,
after studying the petition and related documents. Sir Thomas Thorp
recommended that the reference to the Court of Appeal under s.406(a) be
extended. He also noted that the petition 'raises questions of a wider
significance about the appropriateness of the codes which currently govern
the obtaining and presenting of the evidence of young children in this
country.’ In particular, Thorp recommended that sections 23G and 23H of the
Evidence Act, and the CYPS/Police protocol for the interviewing of child
witnesses, be reviewed. 37. At the 2nd Ellis appeal in July 1999, the Court of Appeal
limited its deliberations to evidence not available at the time of the trial
or first appeal. 38. In September 1999,
Peter Ellis's mother delivered a written request to Justice Minister Tony
Ryall and all MPs for a Royal Commission of Inquiry into her son's case. 39. In October 1999,
the Court of Appeal upheld Peter Ellis's conviction, but noted, on four
separate occasions in the course of the judgment, that, among documents
presented during the 2nd Ellis appeal, 'There may be matters which are worthy
of, and could properly be addressed by, a commission of enquiry.' 40. In November 1999,
Peter Ellis petitioned the Governor-General for a 3rd time, requesting a free
pardon and a Royal Commission of Inquiry into his case. 41. In March 2000,
Justice Minister Phil Goff instructed former Chief Justice Sir Thomas
Eichelbaum to undertake a Ministerial Inquiry into the interviewing of the
six children whom Ellis had been convicted of abusing. 42. In March 2001, Sir
Thomas Eichelbaum concluded that the children's evidence was reliable, and
that Ellis's guilt had been proved beyond reasonable doubt. 43. In October 2001, A City Possessed-was published. Phil
Goff said that he did not plan to read the book. 44. In March 2002,
Phil Goff instructed Val Sim, Chief Legal Counsel of the Ministry of Justice
to report on whether A City Possessed 'discloses any new information which
might point to the need for further inquiry into the Peter Ellis case.' 45. In September 2002,
Phil Goff informed everyone who had written to him about A City Possessed
that 'the Ministry of Justice's Chief Legal Counsel concluded that there was
no significant new evidence [in the book] which has not already been
considered...'. 46. But Phil Goff made no mention of Val Sim's advice, in
relation to the question of whether Ellis should be pardoned, that new and
legally admissible evidence was NOT required before the Executive could act
to overturn a conviction. Sim wrote: While the Royal
Prerogative exists as a safety net, it is a very serious matter in a society
governed by the rule of law for the Executive to overrule a Court decision.
Such a step should only be taken if the decision is demonstrably wrong or for
some other good reason. This does not necessarily mean that the Executive
could not act to overturn a conviction unless there is new, and legally
admissible evidence, which shows the conviction is wrong, but it would need
to be demonstrated that there are matters of very real substance which undermine
the safety of the conviction. 47. In March 2003, a
Special General Meeting of the Criminal Bar Association of Canterbury passed
this resolution 23 - 0, with one abstention: 'That this Association urge the
Minister of Justice to establish a Royal Commission of Inquiry presided over
by a Judge or Judges from outside the New Zealand jurisdiction to enquire
into all aspects of the investigative and legal processes relating to the
case of R. v Ellis.' 48. Minister of Justice Phil Goff said that calls for further
inquiry into the case* s facts were 'completely unrealistic'. 49. In May 2003, MPs
Katherine Rich and Don Brash adapted the resolution of the Criminal Bar
Association of Canterbury for the petition that is the subject of this
submission. Their aim was to obtain the signatures of 100 prominent New
Zealanders. 50. In June 2003, the
first petition, signed by 807 New Zealanders, was presented to Parliament. In
response to popular demand, the second, identical petition was opened the
same day. 51. Minister of Justice Phil Goff rejected the call to establish
a Royal Commission of Inquiry (despite conceding that he had the authority to
do so). A. The
Creche Investigation and Court Proceedings 52. Whether the availability of ACC lump sum compensation for
sexual abuse encouraged parents to lay complaints against the creche staff. 53. Whether the beliefs (about men, pornography, sexual abuse
and heterosexuality) held by some therapists and interviewers, and the
beliefs (about God, Satan, pornography and homosexuality) held by some police
officers, compromised their objectivity and detachment. 54. Whether an officer of the rank of Detective should have been
in charge of a multiple victim case involving serious criminal allegations,
important legal and policy questions and major budgetary issues. 55. Whether irresponsible media coverage inflamed an already
volatile situation. 56. Whether networking between police, interviewers, counsellors
and parents, parental questioning of children, and leading and oppressive
specialist interviewing, contaminated the children's evidence. 57. Whether the basic civil rights of the creche workers were
violated. 58. Whether the children's evidence was credible. 59. Whether, in view of the layout of the creche and the way
that it functioned, the offences could possibly have happened. 60. Whether there was any rational or legal justification for: a. Calling two
mass meetings of creche parents. b. Encouraging
parents to send their children for formal interviews. c. Encouraging
parents to apply for ACC compensation. d. Encouraging
parents to put themselves and their children into therapy. e. Establishing
support groups for parents and extended families. f. Closing the
creche, g. Arresting
Peter Ellis and his four colleagues. 61. Whether Peter Ellis's trial and appeals met minimum
standards of fairness and due process. 62. Whether a Ministerial Inquiry was the appropriate forum for
an issue as complex and controversial as the creche case. 63. Whether the terms of reference for the Ministerial Inquiry
were too narrow. 64. Whether the Ministerial Inquiry was conducted according to
the rules of natural justice. 65. Whether the conclusions of the Ministerial Inquiry were
supported by the evidence. 66. Whether Peter Ellis's conviction is unsafe. 67. Whether Peter Ellis should be pardoned. 68. Whether the Christchurch City Council decision to withhold
key evidence in the 69 Whether
all the creche staff should be compensated. B. The
Wider Issues 70. Whether government policy-makers have been misled by
inflated claims about the nature and prevalence of child sexual abuse. 71. Whether the investigative practices and protocols based on
these claims effectively ensure that any suspicion of sexual abuse will
almost inevitably be confirmed. 72. Whether the 'abuse-focussed therapy' promoted by ACC and
other state agencies encourages the creation of false memories of sexual
abuse. 73. Whether the 'keeping children safe' policies and procedures
for schools instituted following the conviction of Peter Ellis do more harm
than good. 74. Whether changes are needed in; a. The
conduct of police investigations and their supervision by senior police
officers, and in particular the degree of control that is exercised by those
officers over the conduct of the investigation and the gathering and
preparation of evidence. b. The
role of the prosecutor in supervising the gathering of evidence and deciding
whether to proceed with a case, and the arrangements for the disclosure of
material, including unused material, to the defence; c. The place of expert evidence (especially expert psychological
evidence) in criminal proceedings, the responsibilities of experts to the
court, prosecution, and defence, and the relationship between forensic
science services and the police; d. The
arrangements for the defence of accused persons, access to legal advice, and
access to expert evidence; e. The
powers of the courts in directing proceedings; the role of pre-trial reviews;
the courts' duty in considering evidence, including uncorroborated
allegations. 75. Whether the Minister of Justice has
abdicated his responsibility to address the concerns raised by the creche
case. C. Questions
Relating To The Creche Case That Are Already Under Review 76. Whether the 1989 changes to the Evidence Act relating to
children's evidence are likely to cause miscarriages of justice. 77. Whether more independent and transparent procedures for
handling alleged miscarriages of justice when appeal rights have been
exhausted are needed. 78. The grounds for
convening commissions of inquiry The
history of inquiries ... shows that from time to time cases arise concerning
rumoured instances of lapses in accepted standards of public administration
and other matters causing public concern which cannot be dealt with by
ordinary civil or criminal procedures but which require investigation in
order to allay public anxiety. 79. New Zealand law
allows commissions of inquiry to investigate and report on 80. Members of the
Commission 81. Suggested terms of
reference a. Report
on whether any decision, recommendation, act or omission of any i. Appears to
have been contrary to law; or ii. Was
unreasonable, unjust, or oppressive; or iii. Was in
accordance with a rule of law or a provision of any Act, regulation, or bylaw
or a practice that is or may be unreasonable, unjust, or oppressive; or iv. Was based
wholly or partly on a mistake of law or fact; or v. Was wrong;
or vi. That in
making the decision or recommendation, or in the doing or omission of the
act, a discretionary power has been exercised for an improper purpose or on
irrelevant grounds or on the taking into account of irrelevant
considerations; b. Report
on whether - i. Any
practice on which a decision, recommendation, act, or omission was based
should be altered; or ii. Any law on
which a decision, recommendation, act, or omission was based should be
reconsidered; or iii. Any other
steps should be taken.
82. Procedural matters a. The Truth and
Reconciliation Commission model - b. Administration - i. The power of the Executive or Government
to appoint Commissioners and set the terms of reference for a Commission of
Inquiry are powerful tools which may be used to control the process of the
Inquiry itself, Because of the complex and controversial issues involved,
processes for the appointment of the Commissioners, and the drafting of the
terms of reference for an inquiry into the creche case, should be subject to
Parliamentary scrutiny and have a broad political consensus. A consensus at
the outset would build public confidence in the validity of the Commission's
findings. ii To ensure
that witnesses are not intimidated, and the Commission is not undermined by
public servants with vested interests, provision should be made for
Commissioners to bring their own key administrative staff. Other staff should
be recruited from universities and the private sector, rather than seconded
from the public service. iii To ensure
that all evidence and arguments put before the Commission are properly tested
the various interests affected or likely to be affected by any recommendation
of the Commission should have the advice and support of counsel.
83. Advice to the
Minister. a. that
the jury's fact finding role should not be impugned, b. that
Ministerial interference in a decision of the courts would breach
constitutional conventions related to the separation of powers. c. that
a political response to public unease on such matters would be improper. 84. 85. Overseas precedents. a. The creche case fits the pattern of other
high-profile miscarriages of justice overseas, b. In all these cases normal legal processes
failed to identify and correct the miscarriages of justice. |
