Steve Braunias on Peter Ellis case: 'Moral panic, contaminated evidence and an innocent ghost'

OPINION: As Peter Ellis' conviction is quashed, Steve Braunias looks at the case which has divided New Zealand for almost 30 years.

There is no comedy as black as criminal justice comedy. The Supreme Court judgment on the long, wretched case of Peter Ellis, quashing his conviction and scorning 30 years of Crown law as a nonsense that was misguided at best and hateful at worst, concludes its report with the droll remark, "As the appellant has died, the issue of a retrial does not arise." Quite.

Ellis — ex-appellant, ex-convict, ex-alive — is a free ghost, his name cleared, at last. He was convicted at his trial in 1993 of 16 counts of sexual offending against seven children at the Christchurch creche where he worked. We can now regard that conviction, in the delicate language of the judiciary, as unsafe. We can, if we prefer, describe it as bulls***. There is not a single trace of equivocation in the Supreme Court judgment. It lays it out in clean and patient prose. It's a wonderfully readable report, as well as consistently damning.

Few emerge from it unscathed. Not Justice Neil Williamson, judge at Ellis' 1993 trial. Not Dr Karen Zelas, a child sexual abuse expert who gave evidence at that trial. Not Sir Thomas Eichelbaum, who held an inquiry into the Ellis case in 2002 and blithely dismissed his appeal.

It does not have the scope to mention creatures such as former government ministers Jenny Shipley and John Banks, who rejected the first calls for an inquiry, and are damned for the words that came out of their mouths. Shipley: "The matter has now traversed the court system ... I do not consider a further public inquiry into the matter to be necessary." Banks: "I am highly critical of the decision taken to give this individual such work when he openly and often spoke of his perversions."

Well, you could always rely on Banks to say something pathetic. For me, it's the enduring legacy of his many years of public service. And yet even his various assorted foamings lack the sheer craziness that were such a feature of the Crown case against Ellis.

The Supreme Court report is a reminder of some of the fantastical accusations, such as this classic from Complainant 5: "He said he was taken to a house along with other children. People stood around a circle playing guitars and dancing while the children stood naked at the centre ... The unknown group of dancing people had knives and pretended they were cowboys. They all wore white suits and had chains around their necks ... The appellant tied up several children in a 'big ball', put them in the oven and turned it on. There was smoke in the oven. The appellant told complainant 5 he would kill his mother and father."

White suits and smoking ovens! Interesting kid. But the Supreme Court pulls back, rightly, from even the implication of a harsh word against the parents and children at the Christchurch creche. Kids say stuff; the role of parents is to protect. They were caught up in something. Lynley Hood's thesis in her amazing book A City Possessed identified it as a moral panic, or "an epidemic of mass psychogenic illness". The times produced a "zeitgeist" of fear, she wrote, listing organisations such as the Incest Survivors Group and the Child Abuse Prevention Society. Hood's book can sometimes read like the ravings of a threatened right-wing male of advanced years. "Authoritarian feminists set the style and pace of the child sexual abuse prevention movement." And: "The mischief done by PTSD ... turns mentally healthy survivors into victims in need of treatment."

Peter Ellis and his then lawyer, Judith Ablett-Kerr, KC, in 2001. Photo / Peter Meecham

Woah. One of the strangest elements in the defence of Peter Ellis is that it turns back the tide of received thinking about of sexual abuse. We live in an age of trigger warnings and #MeToo. We acknowledge that legislation and the courts make it difficult for victims to come forward.

Sympathy for someone accused of heinous sexual crimes — and the charges against Ellis were deeply heinous, detailing sort of abuses that made many people express the wish to see him dead — is not par for the course in 2022. No, no one is feeling sorry for Weinstein yet. But Ellis is different. For a start, and we can say this now with all due legal authority, he's innocent.

But there was always something else about him. One of the cardinal sins in our moral age is the perception of the abuse of power. Ellis, though, was just so powerless.

Yes, he had little kids under his control at the creche, and the accusations cast him as monstrous and domineering (the white suit, "he would kill his mother and father"). But co-workers and parents interviewed in A City Possessed talk of him as a hell of a lot of fun. He would run under sprinklers with kids. He would hide in piles of leaves with kids. He would line up kids with a mattress on the floor behind them, throw another mattress at them, and they'd fall back, sandwiched between the two mattresses. The kids would beg him: "Can we play the mattress game again?"

Ellis, with his painted fingernails and his "mincing gait" (Hood's words), his games and his pets, "uninhibited and effervescent" (in his probation officer's words), a former tobacco picker and bakery assistant, arrested on his 34th birthday, was somewhat more than just some sort of big kid. He was complex, silly, eccentric, sensitive, bitchy: His own lawyer, Rob Harrison, described him in the 2019 Supreme Court hearing, "You might say that he had a bit of a mouth on him like a torn pocket." Before his jailing, he'd been in a five-year relationship with a man, a two-year relationship with a woman and a four-year relationship with a man. He drank, sometimes a lot, and smoked, too much.

All of which was just someone going about their business, until a stray comment from a little boy at the creche — "I don't like Peter's black penis" — became the first line in a story that grew ever more deranged and sent Ellis to prison for seven years, that followed him to his grave in 2019, that only now has been crossed out, and put right.

He was failed by the Court of Appeal in 1994 and again in 1999. He was failed by the Eichelbaum inquiry. This is what happens to the powerless; this is how easily and constantly they are broken on the wheel. The profound application of tikanga that allowed his appeal to be posthumously heard by the Supreme Court in 2019 was the very first sign that restorative justice in the case of Peter Ellis might be possible. The second sign was at the hearing itself; I attended the second week, and came away thinking three things. One, the Crown case was embarrassing. It felt perfunctory, tired, almost ashamed of itself. Two, the judges seemed particularly keen on investigating the defence case that the children's evidence had been contaminated.

Sir Thomas Eichelbaum. Photo / Mark Mitchell

Justice Glazebrook, to Rob Harrison: "Is your case that the degree of contact between parents meant that one child's allegation became another child's allegation?"

"Yes, sir."

Justice Glazebrook pondered the answer, and asked, "Is your case that all of the allegations of all of the children is contaminated?"

Harrison pondered the question, and said, "There's a risk, sir."

Contaminated evidence was presented in the Supreme Court judgment yesterday as one of two central reasons why the conviction was overturned. "The jury was not fairly informed of the level of the risk of contamination ... The expert evidence at the trial had given the jury a false sense of reassurance that the contamination risk was low."

Wisdom is easier in hindsight but actually it was just as easy to come to the same wise conclusion even before the 1993 trial. Paragraph 239 of the Supreme Court judgment makes for devastating reading. "Prior to the trial, the judge made a number of rulings, some of which addressed the issue of contamination. On reading these it is striking that the concerns were identified very early in the proceedings — they were in the minds of the judge and counsel not only at the trial, but before it." Paragraph 240 shows that these "concerns" only got as far as the moat of their minds. "The appellant ... made a pre-trial application to exclude the evidence of the complainants ... [It] was unsuccessful." Well, it only took 30 years to cross that moat.

The third thing I took away from the 2019 Supreme Court hearing was an interest in the literary work of a Dunedin author. Her name was Karen Zelas, the same Dr Zelas who is of such consuming interest in the Supreme Court judgment that her name appears 240 times (Ellis gets 69 mentions). Example: "The court has found that Dr Zelas' evidence lacked balance." And: "This court has concluded that ... the extent to which Dr Zelas' evidence departed from appropriate standards ... may well have affected the verdicts and thereby caused a miscarriage of justice." Also: "On a number of occasions Dr Zelas gave evidence in which she accepted or appeared to accept the complainants' evidence of abuse as a true account."

Zelas is now the author of poetry ("you/ breached the testosterone citadel") and fiction, including the novel Resolutions, the first in a projected series starring family lawyer Rebecca Eaton: "Her competence is questioned, media hound her," reads the blurb. It has a good review from Gail Ingram who writes that Zelas' main character "wrestles with ... protecting families in distress."

The Supreme Court judgment, too, takes an interest in distressed families. "Dr Zelas ... addressed whether, based on evidence called at trial, each of the complainants had exhibited behaviours that were consistent with the behaviours of a child of that age who had been subject to sexual abuse. Across all of the complainants in respect of whom charges were laid, she described 20 categories of behaviour which the Crown later categorised as follows: Fear or dislike of Mr Ellis; reluctance/fear of attending creche; fear of or obsession with penises; fear of other adult males; fear of intruders/robbers/burglars; clothing problems; eating problems; toileting problems; bathing problems; sleeping problems/nightmares/night terror; headaches/vomiting/stomach aches; vaginal/anal soreness; stealing/taking/hiding objects; withdrawn/scared behaviour; tantrums; masturbation; sexual behaviour; poor co-ordination; fear of animals; and fear of threats of death to themselves/parents.

"She reiterated her stance ... that sexualised behaviour in young children is one of the behavioural indicators most specific to sexual abuse so it is unlikely to be due to other behaviours."

All of which reads like fiction. Fear of intruders — sexual abuse. Bathing problems — sexual abuse. Tantrums, stomach aches, fear of threats of death to themselves/parents ("he would kill his mother and father") — sexual abuse. Who would believe any of this? Not the Supreme Court, which gives it a very bad review indeed: "Much of this evidence should not have been admitted at all."

But it was, and to borrow the imagery of Hood's thesis that the case was a witch-hunt, it burned Peter Ellis at the stake. At the Supreme Court hearing in 2019, Rob Harrison read out depositions given by the parent of the child who said one day that he didn't like "Peter's black penis".

The parent said, "I have a strong belief that secrecy in sexual abuse can keep it happening. I felt it needed to be talked about ...

"When my child first talked to me, because of my work in sexual abuse, I knew it was rare for only one child to be abused and I knew from profiles of abusers that they are attracted to work with children."

Question, at depositions: "So really from when your child made the comments about Peter's 'black penis', in your mind you believed there had been widespread abuse at the creche?"

Answer: "I believed it was highly likely."

Harrison remarked to the Supreme Court, "So that was their mindset."

A mindset, a moral panic, a set of beliefs — society functions or malfunctions on all sorts of bad ideas formed with the best of intentions. The problem is when they enter the courts or other citadels of the democratic process. Peter Ellis got taken in for questioning by a zeitgeist but the New Zealand criminal justice system did the rest, and devoted the past 30 years to getting it horribly wrong.