In a seismic legal decision the Supreme Court has exonerated the late Peter Ellis and unanimously quashed all his convictions of child sex abuse, declaring the case a miscarriage of justice.
Ellis was at the heart of one of New Zealand’s most controversial and divisive legal sagas that centred on accusations of child sex abuse at the Christchurch civic creche where he worked in the early 1990s.
Some of the claims against Ellis, a gay man, were bizarre including satanic ritual, and came against a backdrop of moral panic over other child sex abuse cases in the UK and US, as explored in Lynley Hood’s book A City Possessed.
In 1993, Ellis was convicted of sexually abusing seven children while in his care at the creche and was sentenced to 10 years imprisonment. He always protested his innocence but two Court of Appeal hearings and a ministerial inquiry found the convictions stood. Although, in a 1994 appeal one of the children retracted their allegations and the court quashed three convictions.
Before he died of cancer in 2019 at the age of 61, Mr Ellis filed one last ditch attempt to overturn his convictions in the Supreme Court. In a highly unusual move, the Supreme Court allowed the appeal to go ahead posthumously.
Major problems with psychiatrist's evidence
Today the court found there were major problems with the evidence given during the trial by Dr Karen Zelas, a psychiatrist. A Crown witness, Dr Zelas was involved in supervising the interviews of the children and helped the police with their investigation.
Her evidence highlighted 20 behaviours by the children, including bedwetting and sleeping problems, that she testified were consistent with the behaviour of sexually abused children generally.
The Supreme Court found Dr Zelas’ evidence departed from appropriate standards. It found it lacked balance, suffered from problematic circular reasoning and had the overall effect of suggesting to the jury that “clusters” of behaviour support a finding of sexual abuse.
The court said none of those problems were counteracted by cross-examination, the judge’s summing up or the defence’s expert witness. Therefore the court found a substantial miscarriage of justice had occurred.
The Supreme Court also looked into the risk of the children’s evidence being contaminated, particularly by questioning from parents. During the Supreme Court appeal, Ellis’ lawyer relied on new evidence from memory experts, including studies post-dating the trial.
There was substantial agreement from both the experts for the Crown and the appellant that the risk of contamination was higher than the jury in 1993 was led to believe, and that if contamination occurred it would not have been readily detectable.
The Supreme Court found that although the risk of contamination was traversed at the 1993 trial, the jury was not fairly informed of the level of risk.
Posthumous appeal
The court also revealed today its reasons for allowing the appeal to go ahead despite Ellis’ death. Three of the judges - the Chief Justice Helen Winkelmann, Justice Susan Glazebrook and Justice Joe Williams held that it was in the interest of justice that the appeal continued. They said the grounds of appeal are strong and raise systemic issues.
There has been long running public concern about the possibility of a miscarriage of justice in this case and the three judges said there is public interest in ensuring convictions only follow from fair trials.
During the appeal, Tikanga or Māori customary law, was raised as a reason for why the appeal should continue. Lawyers for Ellis argued that under Tikanga Ellis’ mana transcends death and he had a right to be able to restore it.
The Crown didn’t oppose this argument and agreed Tikanga has a place in New Zealand law. Tikanga was a consideration in this case, but ultimately the majority judges decided to exercise their discretion in the interests of justice.
The two other judges, Justice Mark O’Regan and Justice Terence Arnold chose not exercise their discretion. They felt the interests of the complainants and their whānau outweighed all other factors.
The Supreme Court said its judgement was not to be read as a criticism of the parents. The judges acknowledged the “impossible position” parents were in and the difficulty they faced not to ask their children questions or discuss the case with other parents.
TIMELINE OF THE PETER ELLIS CASE
1991 - Police investigation starts after a mother, whose three-year-old went to the Christchurch civic creche, complained that her son said he didn't like "Peter's black penis".
1993 - Peter Ellis convicted of 16 charges of sexually abusing seven children in his care. Sentenced to 10 years imprisonment
1994 - First appeal dismissed. Court of Appeal quashed three convictions after one child retracts her allegations
1999 - Second appeal dismissed. Court of Appeal not convinced a miscarriage of justice had taken place
February 2000 - Ellis released from prison
March 2000 - Ministerial inquiry finds there were no doubts about the reliability of the children's evidence
2001 – The book "A City Possessed" by Lynley Hood prompts a petition signed by well know New Zealanders, but their call for a royal commission of inquiry is rejected
July 2019 - Ellis granted leave to appeal to Supreme Court
September 2019 - Ellis dies of cancer
2020 - Supreme Court allows posthumous appeal to go ahead
2021 - Supreme Court hearing on the reliability of the children's evidence and whether it was improperly obtained
2022 – Supreme Court quashes all convictions
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