Peter Ellis: safely convicted or a miscarriage of justice?

Jailed for 10 years in 1993 after being found guilty of 16 child sex offences, Peter Ellis – now terminally ill – has persuaded the Supreme Court to grant leave to appeal his convictions. In the final of a two-part series, reporter Rod Vaughan, who made a documentary on the case for TVNZ’s Assignment program 25 years ago, traces Ellis’ road to our highest court.

The case against Peter Ellis and four female co-workers was based almost entirely on the uncorroborated testimony of children aged between six and eight, who were recalling alleged incidents from several years earlier when they were barely out of their nappies.

Psychologists from social welfare’s specialist services unit conducted more than 100 hours of videotaped evidential interviews with the children. From the outset it was clear the case would be won or lost on the information elicited from these interviews.

Christchurch lawyer Gerald Nation, who defended the four women, said he believed the interviews were flawed from the outset.

“When the whole thing started, the advice from the police and the specialist services unit to the meeting of parents was if a child talks about something that could be abuse, the first guideline was to believe the child, tell the child it’s happened to others, that sort of approach. Now that is an extremely dangerous approach to take.

“The correct approach should be to take what a child says seriously and to investigate it carefully, and I think that was a fundamental flaw with the investigation. It was what led, in my view, to the women being charged.”

A year after the first sexual abuse complaint was made about Ellis the depositions hearing began in the Christchurch District Court. Ellis faced 45 charges of performing indecencies while Gay Davidson, Jan Buckingham and Marie Keys faced four charges and Debbie Gillespie three charges.

As expected, the evidential interviews dominated proceedings. The hearing lasted 11 weeks and, to the surprise of many, all five crèche workers were committed for trial. If found guilty, they faced the prospect of lengthy jail terms.

Their futures seemed grim but, in 1993, the charges against the four women were dropped at a pre-trial hearing when Justice Neil Williamson decided there was insufficient evidence to convict them.

Remarkably, none was awarded costs even though, in the eyes of the law, they had been cleared of any wrongdoing, and were left to pay legal bills of more than $90,000.

Not surprisingly, the women were gutted by what they’d been through and were left wondering why they were ever charged.

Marie Keys summed up their feelings: “I’m shocked that it happened to me and to us, that they could get it so wrong. And I do get angry sometimes when I think of all these years, these wasted years, when we should have been getting on with our lives and building up for the future. I almost feel contempt for some of these people who can’t see that they’ve got it so wrong.”

So, with the case against the women dropped, Peter Ellis duly appeared in the High Court at Christchurch before Justice Williamson.

The charges had now been whittled down to 16 involving seven children.

This was due in part to the decision by some parents not to expose their children to the rigours of a High Court trial.

But it was also due to a tactical decision by the Crown to base its case solely on the most credible videotaped allegations made by the children. 

The Crown opted not to show the jury many of the more bizarre claims, such as the allegation of children being strung up in cages with animals being sacrificed below.

Ellis’s lawyer, Nigel Hampton QC, was scathing about this.

“If they’d seen the whole range they might have said to themselves, ‘well can we believe this extraordinary thing that is being said when there’s never been any physical signs to corroborate it and did it really happen? How could it possibly have happened?’ The answer would have been ‘no’.”

The jury might not have seen and heard all the evidence the defence wanted to present but there’s no doubt it was impressed with what it did get to see.

First, the Crown played its videotapes of the selected interviews.

Then the jury saw the children cross-examined by Ellis’ lawyers. While some were confused or unable to stand up to the cross-examination, most steadfastly stuck to their allegations.

They also heard Ellis steadfastly deny he was a child abuser.

In the event, the jury found him guilty on 16 charges, one of sexual violation, two of unlawful sexual connection, five of doing or inducing an indecent act and eight of indecent assault.

Justice Williamson sentenced him to 10 years’ imprisonment and, unusually for a judge, declared the jury’s verdict to be the right one.

“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 believed the children and I agree with that assessment.”

But doubt remained. How reliable was the children’s evidence and the manner in which it was obtained? And was it safe to convict Ellis on evidence which was completely uncorroborated?

In short, was he found guilty beyond all reasonable doubt?

These questions were debated across the country in the months and years after Ellis’ incarceration. But one in particular came in for a lot of scrutiny: were the children’s interviews that largely secured his conviction seriously flawed?

It was a nagging doubt that troubled many of his supporters, especially when they learnt one of the Crown’s expert witnesses, psychiatrist Dr Karen Zelas, had conceded privately that some children made disclosures about sexual abuse after being asked leading questions by their parents.

She wrote a letter to the police about the credibility of two children in which she said:

“It is clear that child A’s parents elicited disclosures of abuse by Peter Ellis by highly-leading questioning. In child B’s case the parents subjected him to intensive interrogation pertaining to ritual abuse. He would then disclose in the next interview the information elicited by his parents the previous night.”

Lump sum payouts
And according to sociology professor Michael Hill, whom I interviewed, some parents grilled their children for two reasons: one, from a genuine belief that their youngsters had been abused and, two, the lure of substantial compensation.

“In those days, of course, the ACC paid out $10,000 in a lump sum for someone who claimed to be a victim of child abuse, and then I think you’ve got the formula for putting together, on the one hand, a genuine belief in the phenomenon, and on the other, if you like, a material inducement to actually produce evidence,” Hill said.

Parents I spoke to vigorously denied such suggestions but the fact remains that ACC said it paid out $500,000 to about 40 parents who claimed their children had been abused.

Virtually all the claims were for lump sum payments of $10,000, with some parents claiming several times this amount, depending on how many times they thought their child had been abused. Most of the concerns, though, were in relation to the videotaped evidential interviews done by social welfare staff.

Hampton was especially critical of the interviewing process.

“You have a very disturbing pattern emerging when you look at the interviews with an individual child of, for a start, possibly nothing, or if anything, quite innocuous things being said in the first interview.

“Then, on the second, third, fourth, sometimes up to six interviews, the allegations emerging being from almost nothing to becoming sort of allegations of touching to becoming allegations of satanic ritual abuse.

“Was it that memories were being construed within them? Not genuine memories at all? But how do you discern the genuine memory from the construed memory?”

In fact, one or two interviews lasted almost two hours and were clearly stressful for the children concerned. The interview process came under the spotlight in the Court of Appeal when it considered Peter Ellis’ appeal against conviction.

In rejecting all his arguments, the court said it did not accept his defence was handicapped by the High Court judge’s ruling which resulted in the jury seeing only half of the 44 videotaped interviews.

The court said the judge was “clearly right in seeking to prevent the trial becoming enmeshed in all the collateral and peripheral matters covered in the tapes not relied upon by the Crown and about exposing the jury to the playing of many hours of irrelevant material, thereby distracting them from consideration of the real issues”.

Retraction
During the Court of Appeal hearing there was a bombshell which caused the proceedings to be adjourned. It came in the form of a retraction by one of the Crown’s key complainants.

Her parents told the court she was now saying she had lied during the evidential interviews about Ellis and had given the answers she thought the interviewer wanted to hear.

The child was seen as one of the most credible of the complainants. Her testimonies related to indecencies in the crèche toilets and was devoid of the more bizarre claims made by some other children. But after considering her retraction, the Court of Appeal determined she was a confused and troubled girl, and said:

“We are by no means satisfied that she did lie at the interviews, although she may now genuinely think she did. With such doubts we think it would be unsafe to let the convictions on the counts involving her stand.”

However, on the remaining 13 counts involving other children, the court dismissed Ellis’ appeal, saying claims that evidence of the children was contaminated by interviewing techniques, parental hysteria or the like, lacked any solid basis.

To get an independent assessment of what the children said, I approached Professor Stephen Ceci of Cornell University in the United States.

Ceci has conducted extensive scientific analysis of children’s testimony and is regarded as the world’s leading expert in this field.

He said: “One of the things that bothers me more than anything else is the cadre of instant experts that make their way into North American courts and, I suppose, also into New Zealand, Australian, other Commonwealth country courts, that profess with a great deal of certainty to judge and jury that they have a Pinocchio test – that they can tell when a child’s statements are accurate or inaccurate.

“There’s nothing that’s ever been established in a scientifically-adequate way that can discriminate between accurate and inaccurate statements when the child has been repeatedly interviewed over long periods of time.”

Asked for his thoughts on the fact that Ellis had worked at the crèche for five years before any complaints were laid against him, Ceci said: “In my experience it’s exceedingly unlikely that you can coerce a group of children this age into silence for prolonged periods of time when the following were allegedly involved: anal insertion, forcing children to walk across precarious ladders perched high above buildings, defecating and urinating on children in bath tubs, in beds and the like.

“These are events which cause almost instant revulsion in children. So, on that level I’m exceedingly sceptical. I don’t think the bizarre stuff happened. Does that mean nothing happened? Well, I simply don’t know. No one else knows either, except God and Mr Peter Ellis.”

Shortly after interviewing Ceci, I wrote to Peter Ellis in Paparua prison in Christchurch to see whether there was anything more he would like to add.

His response was short and to the point: “I will always maintain my innocence purely and simply because I am not guilty and secondly because I will not allow the children of the Civic to go through life thinking they have, or may have, been abused.

“I firmly believe the children, like the oldest child that recanted at the appeal, will see the truth one day and ask to have this travesty sorted once and for all.

“This case cannot, and will not, be swept under the carpet to protect the reputations of some incompetent, over-zealous, so-called experts and police officers.”

Ellis was released from prison in 2000 after serving seven years of his 10-year sentence. That same year, then Justice Minister Phil Goff set up a ministerial inquiry into the conduct of the evidential interviews, headed by former Chief Justice Sir Thomas Eichelbaum QC.

Sir Thomas, now deceased, concluded the interviews were of good quality overall, and while excessive questioning by some parents could have led to some contamination, this would not have been sufficient to affect the convictions.

In subsequent years repeated bids by Ellis and many prominent New Zealanders for a pardon and a commission of inquiry have been rejected, despite new research indicating the questioning of the children at the crèche was below a legally-acceptable standard.

However, Ellis has finally been granted leave to take his almost 30-year fight to the Supreme Court to clear his name. How it plays out remains to be seen but for the terminally ill 61-year-old it’s a case of ‘now or never’.

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