Sasha Borissenko: Was Peter Ellis scapegoat for prejudices of the time?

Peter Ellis, pictured in 2001 after an application for his pardon was refused by the Governor-General. Photo / File

COMMENT:

Peter Ellis died of cancer last week. He was 61. He spent his life devoted to proving his innocence, appealing numerous times against his 1993 conviction in the High Court in Christchurch.

He was sentenced to 10 years' imprisonment and was found guilty of 16 counts of sexual offending against seven (and what was later to become six) child complainants.

He led a tragic life. Without wanting to trivialise the situation and the experience of those involved, New Zealand has been known to glorify some, and demonise others.

There was Sonny Bill Williams having the gall to play sport in Australia for example, and Russell Coutts deciding to jump ship. Team NZ referenced the latter by using Dave Dobbyn's 'Loyal' during the campaign.

Following the Christchurch terror attacks, the country was awfully quick to announce the person responsible was Australian, in other words, he was not one of "us".

Supposing Ellis was innocent, one could argue he was a scapegoat for the national narrative and prejudices of the time.

He was a gay man working at a creche in Christchurch, less than 10 years after homosexual law reform had been implemented.

He lost his case in the Court of Appeal nearly 20 years ago, in October 1999. But in July, he filed a successful application for leave to appeal to the Supreme Court.

The approved ground of appeal was whether a miscarriage of justice occurred. The subsequent hearing was set to be held for four, possibly five days, on 11 November. The question now, though, is whether it will go ahead.

I spoke to his lawyer, Nigel Hampton QC, just one day before his death.

Under conventional New Zealand law a person's appeal rights die with them. Prior to Ellis' death, the Supreme Court indicated that if Ellis did die before the hearing, it would consider arguments that his appeal survived - on the basis of precedent authority from
other jurisdictions which suggest appeal rights don't necessarily die and an appeal might be heard if there is significant public interest and matters of principle involved, Hampton said.

"It's something the Supreme Court will have to certainly wrestle with. But I'm of the view it should be a matter that is heard because of its significance."

The case was significant because it was part of what he believes to be a worldwide epidemic of ritual satanic abuse - particularly involving the sexual abuse of children.

And then there was the hysteria and moral panic that occurred in the wake of that epidemic.

"Cases of this nature - including the Peter Ellis case - were happening in most common law countries as a result of this epidemic. They began to recede in the US and later in other parts of the world, but New Zealand is the one exception to that corrective ebbing.

Peter Ellis (left) and his then-lawyer Judith Ablett-Kerr, QC, at the press conference in Christchurch in 2000. Photo / File

"It's a country - through its legal system and legal hierarchy of courts, and through executive inaction - that didn't remedy the injustices that happened. We haven't focused on what could have gone wrong."

Then there was the issue of best practice. "Although we have remedied our technical methods used in interviewing children and young people to some extent if the case went ahead it would offer a chance for our systems to be put under scrutiny to see whether we're complying with world standards."

And finally, and most importantly, the case was significant because if there was a miscarriage of justice it meant a person's life was ruined as a result and that person's right to justice had been denied.

Auckland University professor Mark Henaghan was part of a team associated with the Innocence Network New Zealand that made submissions leading up to the Supreme Court hearing.

The Innocence Network is an affiliation of organisations dedicated to providing pro bono legal and investigative services to individuals seeking to prove innocence of crimes for which they have been convicted, and working to redress the causes of wrongful convictions.

"We understand from all of the international academic material that in any legal system eight to 10 per cent of cases will include miscarriages of justice. All systems need to be assessed, and independently."

Together with Otago University Vice-Chancellor Harlene Hayne, and Bridget Irvine, the aim was to establish and show the Supreme Court that there was something substantial and new in the Ellis case, Henaghan said.

The way in which children were interviewed using leading questions was outdated, and there had been a heap of research since that would determine this evidence to be unreliable, Henaghan said.

Contamination was also an issue, where parents - obviously concerned - had spoken to their children prior to the trial, for example.

The most important factor was that during the trial and appeal Section 23(G) of the Evidence Act allowed expert evidence that suggested certain types of behaviour was consistent with sexual abuse.

"It was quite powerful evidence, and would quite possibly influence a jury. That section has been taken out of the Act because there could be all sorts of explanations for certain behaviour, and these days it's just not scientifically possible to make such a conclusion."

And the tapes used, which showed the children's testimonies, were heavily edited. "It was done with the best of intentions, the judge and court thought to include the highly fanciful excerpts would undermine the children's credibility. The issue is that the context was lacking."

It meant that much of the evidence wouldn't be used today, and there could have been a very different outcome, he said.

"Peter Ellis wanted the case to go ahead - even if he died - to make sure the system operating was fair going into the future. He was quite magnanimous in the end."

Will the hearing go ahead? A Supreme Court spokesperson said "this would be a matter for the court to consider in terms of any submissions that might be made to the court on the issue." In other words, the issue is still to be decided.

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