The Christchurch Civic Creche Case


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The Press
August 17 2005

Ellis faces long wait for justice
Jonathon Harper

The select committee report into the Christchurch civic creche case is just another stop in a slow train for justice, writes Jonathon Harper

Undoubtedly it will be at least a few more years before a full and proper examination of this bizarre case will settle the widespread disquiet surrounding Ellis and other victims of hysteria in New Zealand.

 

It is still not all over for Peter Ellis after the parliamentary justice and electoral select committee refused to recommend an inquiry into his case last week.

After two inquiries, two appeals and two petitions, along with a significant retraction and two years of select committee deliberations, most of the 1993 convictions against Ellis for sexual abuse of pre-schoolers under his care in the Christchurch Civic Childcare Centre remain.

The best chance for Ellis is now likely to be the proposed Criminal Cases Review Committee (CCRC), according to Scott Optican, senior lecturer in evidence and criminal procedure at the University of Auckland Faculty of Law. This may be the most significant recommendation made by the select committee, as it allows for the review of historical cases such as the Ellis one.

Optican thinks it all depends on how the CCRC is set up: how easy it is to get a case heard there, the resources it will have and its powers to have its recommendations acted on.

Speaking on National Radio last week, Lynley Hood - the author of A City Possessed, which has galvanised much of the concern about the case - was adamant a royal commission of inquiry is the only way problems raised by the case can be settled.

She points to the need for an independent overseas judge because everyone here is contaminated in some way by the case, and the wide range of issues involved. Without a royal commission of inquiry she fears that "these same people (therapists, police, prosecutors, etc) are continuing to make the same mistakes and that won't be identified without a commission of inquiry and so they're just going to go on insisting we did nothing wrong".

Petition signatory Richard Christie agrees. "The CCRC option isn't concrete. As well as letting down the petitioners, the committee has let down justice in New Zealand. Many, including law professors and QCs, signed the petition due to concerns over an apparent judicial siege- mentality on this case, as did those who signed due to concerns over Ellis's guilt or innocence," says Christie.

"Tuesday's labelling of the report as a `cop-out' by lawyer group Just Cause illustrates this. The `if and maybe' options proffered by the committee's report simply do not address concerns over the total processes surrounding this particular case."

If elected to government, the National Party is promising an inquiry, although it may not be a full royal inquiry with an overseas judge having wide powers.

The select committee chairman, Christchurch MP Tim Barnett, estimates it will probably take two years or more to set up a CCRC, and then more time before Ellis's case could be heard by it. Yet he sees it as a better option than a royal commission of inquiry for a re-examination of Ellis's guilt because it would be "more focused and investigative" and it would be "more able to talk to people in private".

Barnett claims that the civic children (now teenagers) could feel obliged to give evidence before a royal commission of inquiry. The issue of victims' new legal rights may make this process even more complicated, he says.

The single remaining legal avenue for Ellis now is said to be a specially pleaded, politically dependent right to appeal to the Privy Council. While the select committee recommended legal aid for Ellis to do this, and that the application not be opposed by the Attorney-General, most commentators do not think it either a reliable way ahead or that it could get to the heart of the issue as a royal commission of inquiry could have.

Hood thinks Ellis would probably be told by the Privy Council that "(you have) got some good points but you have left it too late". She points to the failure of the leave to appeal some years ago involving a Wellington Hospital creche worker who faced similar accusations after the Ellis case.

Optican points out that criminal cases are rarely accepted for Privy Council review and, when accepted, rarely result in a reversal of a guilty verdict. An appeal in the Ellis case would be even less likely to succeed, particularly since no clear breach of fair-trial rights is evident and the case hinged largely on the jury's conclusions regarding disputed facts.

 

There is a glimmer of hope from a Privy Council appeal, according to evidence law expert and New Zealand Law Journal editor Bernard Robertson.

He says the appeal would be on the ground that the expert witness evidence (under section 23G(2)(c) of the evidence act) did not comply with the requirements laid down by the Court of Appeal in last year's R v A case.

Evidence law is under revision and the public is entitled to make submissions on an evidence bill before Parliament. The select committee reported that proposed changes mean that in sexual abuse cases, the appointment of court expert witnesses will no longer be limited to clinicians, so allowing for more scientifically based input.

In addition, the repeal of section 23G will no longer allow the controversial and unproven theory that some children's behaviours are "consistent" with them being sexually abused.

At the Ellis trial, the court heard through expert prosecution witness Karen Zelas that sleeping problems (nearly all the children had these), tantrums, toileting problems (what parent of toddlers hasn't experienced this?), and clothing problems (only two conviction children reported this) were all "consistent with" them being sexually abused.

Included in the list were also more credible, but still contested, behaviours of "fear/obsession with penis" and vaginal soreness.

Interestingly, the Law Commission had not recommended the section (23G) that this sort of evidence is based on be repealed. Nor had the Ministry of Justice chief legal adviser, Val Sim. Presumably the change was made at Cabinet level.

Robertson argues that "a formal inquiry needs to be held by someone into every case in which evidence has been given under section 23G(2)(c), just as in England a formal inquiry is being held into every case in which Munchausen's by proxy was advanced as prosecution evidence".

In the Ellis case, the most clear and thorough criticism of the videotaped forensic interviews with the children is to be found in the reports presented at the second appeal by Dr Barry Parsonson, a developmental and clinical psychologist with some expertise in the area of interviewing children and experience in analysing evidential videotapes.

He says: "I believe any analysis had to look at all tapes in order to evaluate changes in evidence over repeated interviews, themes and contextual information that raised issues and informed re credibility etc."

Barnett and his committee decided not to consider the Parsonson report because they limited themselves to the documents presented by the petitioners and the Ministry of Justice. Both failed to include this important document.

As for the Eichelbaum report, there is widespread support among expert psychologists, commentators and lawyers for the view of Robertson that "the Eichelbaum Inquiry has been rubbished by everyone who examines it seriously". Hood even called it "a crappy review - he didn't look at the police (role) at all - the terms of reference said he could (have)." His terms of reference have often been criticised as too narrow.

Nevertheless, Justice Minister Phil Goff is on record as standing by the blanket findings of Eichelbaum that the convictions were safe.

Canadian psychologist Louise Sas, upon whom Eichelbaum heavily relied, is considered by many experts to be overzealous in pursuing convictions, and to give too much weight to flimsy and far- fetched evidence. She herself has described a conviction as a "positive court outcome".

Undoubtedly it will be at least a few more years before a full and proper examination of this bizarre case will settle the widespread disquiet surrounding Ellis and other victims of hysteria in New Zealand.

Another petition signatory, Nancy Sutherland, thinks "the select committee's recommendations temporarily do some good right now as they give all parties some breathing space. Yet they could make things just as hard later. The report seems rather likely just to cause delay and political efforts could still be worked to keep the status quo."

A commentator who reported in detail on the case in May this year, Anthony Frith, said, "Ellis will remain for the foreseeable future a martyr denied redemption by a system too proud to admit its own mistakes Ellis has maintained his innocence, only to be told he is in denial. It is, in fact, the New Zealand Government that is in denial."

Barry Kirkwood, a retired university senior psychology lecturer from Auckland, commented some time ago: "We are living in a cargo-cult country (where) magical thinking has replaced critical analysis; what we are looking at here is a major system failure. So many reputations are on the line in this case, that the authorities cannot afford to let Ellis off."

 

Jonathon Harper is a Wellington writer who has taken a close interest in the civic creche case.