New evidence reveals how Goff inquiry into Peter Ellis case was nobbled

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New Zealand’s gravest miscarriage of justice since the Thomas case is undoubtedly the 1993 conviction of daycare worker Peter Ellis on 16 charges of molesting children at the Christchurch Civic Creche. Since the trial, the evidence has become overwhelming that no children were abused at the Civic by Ellis, any of his co-workers, or anyone else. The belief that abuse happened was created by parental hysteria, fuelled by the actions of social workers and the police who were motivated by the conviction they were on to a case like the many equally notorious, and just as fanciful, “satanic abuse” trials that saw dozens of innocent American daycare workers jailed in the 1980s.

Peter Ellis was released from prison in 2000 after serving the full non-parole term of the 10-year sentence imposed on him by Justice Neil Williamson in 1993 after a farce of a trial in which the judge made more than 200 rulings preventing the defence from presenting evidence that would have shown how the fallacious, bizarre charges came about.

By the time he was released, many lawyers, judges, police and politicians had reached the conclusion the case was a crock. One of them was then Justice Minister Phil Goff, who since his Opposition days had been promising a commission of inquiry into the case. A month after Ellis was released, Goff announced the appointment of former chief justice Sir Thomas Eichelbaum to conduct a very limited ministerial inquiry into narrow aspects of the evidence and interviewing of the Civic children.

Eichelbaum, after ignoring the mountain of evidence that nothing happened at the Civic as assiduously as Williamson had kept it from the jury, issued a whitewash of a report in 2001 that alleged Ellis had failed by a country mile to prove his innocence and would he please now go away.

I have long wondered how Goff was nobbled in his desire to see justice prevail in this case, and how Eichelbaum could have conducted such a pathetic inquiry. After all, another eminent jurist, Justice Sir Thomas Thorp, had earlier found, in a report leaked the week after Eichelbaum’s travesty was published, that the evidence in the Civic case was so suspect there was a serious risk of a miscarriage of justice.

Now I have found the answer, or at least a good part of it. In two fascinating articles in the New Zealand Law Journal, independent Wellington researcher Ross Francis has obtained and analysed the paper trail of the behind-the-scenes activities of the Justice Ministry officials who advised not only Goff but also Eichelbaum.

I commend these lucid articles to everyone who is interested in the fair and impartial administration of justice in this country.

Part two in particular, beginning on page 439, lays the inquiry bare. It begins by revealing Eichelbaum had a close working relationship with Justice Williamson, something I hadn’t known, describing him as “a model judge” who “conducted many of the most difficult trials of the time.” Williamson, who died in 1996, was also the presiding judge at the David Bain trial.

But the two big issues that jump out of Francis’s article are the pivotal role of Justice official Val Sim behind the scenes in the Ellis case, and the highly questionable appointment of Canadian “expert” Louise Sas as an adviser to Eichelbaum in the inquiry.

Sim is revealed by Francis as working quietly within the ministry over a number of years, advising other officials, judges and politicians not to grant Ellis a pardon and not to allow a full commission of inquiry into the case. She is now a law commissioner.

Early on in the inquiry process, Eichelbaum rejected a request by Ellis’s lawyer to engage one of the world’s foremost experts on the interviewing of children, Stephen Ceci of Cornell University, New York State, as an adviser. Sir Thomas Thorp’s report had suggested using Ceci to review the evidence.

Francis reveals that Eichelbaum asked Sim whether the Thorp Report was covered by his terms of reference. “Sim was uncertain,” Francis writes. “She considered that because the report was not publicly available, the ‘safest course’ was to discount it.” Eichelbaum did. Francis adds that the Thorp Report should have been required reading for Eichelbaum and his advisers.

Sim also urged Eichelbaum to discount any expert who had a “close publishing association” with Ceci, and thought Eichelbaum could be helped by American law professor Thomas Lyon, who was a critic of Ceci. Lyon, however, was unable to take on the role of adviser to Eichelbaum.

Instead, someone Eichelbaum turned to was Sas, a psychologist who had written not one peer-reviewed article on such relevant issues as child suggestability or memory, but had conducted research into an alleged “multi-victim, multi-offender” case known as Project Guardian, regarded by many Canadians as an anti-gay witch-hunt. Sas was also the prosecution “expert” in an abuse case of so little veracity that the judge dismissed it. The defence lawyer noted that Sas “can interpret every fact and every behaviour as evidence of abuse.”

That Canadian comment is eerily similar to the defence remark during the 1993 Ellis trial that Christchurch psychiatrist Karen Zelas, the Crown’s chief expert witness, was able to claim that any behaviour by a child was consistent with sexual abuse, an impossible position that greatly harmed Ellis’s defence.

None of the officials Francis questioned during his research was able to tell him how Sas came to be employed as an advisor to Eichelbaum when other, far more qualified people were rejected or not considered.

However, he does reveal that Waikato law lecturer Wendy Ball, an academic so in the anti-Ellis camp that she acted as the spokeswoman for some of the complainant Civic families in the 1990s,  attended with Sas and spoke about the Civic case at a 1997 family violence workshop in Canada.

Naturally, Sas told Eichelbaum Ellis was clearly guilty and there was nothing wrong with the leading way the Civic children were “interviewed” to create the lurid allegations against him. This was despite the fact not one child spontaneously complained about abuse and that the allegations only followed hours, days, weeks and, in one spectacular instance, months of parental interrogation  and the constant swapping of rumour, fear and fiction between parents. The parents passed on the “information” that resulted to the interviewers, who used it as their basis for interviewing the children. Each time a child regurgitated some parental-inspired snippet, a new charge was laid against Ellis. 

The Eichelbaum inquiry was the one chance and the appallingly missed opportunity to introduce justice to the Civic case. Ross Francis is to be commended for the diligent work that has laid bare the details of why it failed.

All is not quite lost, however. Ellis’s lawyer, Judith Ablett-Kerr, QC, is preparing an appeal to the Privy Council. Cases dealt with before New Zealand replaced that body with our own Supreme Court in 2004 can still be heard by the London law lords.

While the Privy Council has only rarely agreed to hear an appeal in a New Zealand criminal case, its intervention in the Bain case gives Ellis significant hope. This is because the fundamental point the law lords made in the Bain case – while making no comment on Bain’s guilt or innocence – was that it was for a jury, not judges, to consider all the evidence and bring down a verdict.

The jury in the Ellis case was prevented by Justice Williamson from hearing volumes of evidence that would have cast serious doubt on the prosecution case. Williamson’s decisions to let the jurors hear only what the prosecution wanted them to hear were upheld by our Court of Appeal.

If the Privy Council upholds its Bain case jury principle when Ellis goes before it, the only possible outcome is the ordering of a new trial for Peter Ellis in which a new jury would for the first time hear all the evidence. While justice delayed is justice denied, justice is also never too late.

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Filed under Justice and Law, Peter Ellis

Tags: Christchurch Civic Creche, miscarriage of justice