One of the most important judgments in New Zealand legal history has today been delivered. Its implications are huge.
Two years after he died, and almost 30 years since first convicted, Peter Ellis has today had his name cleared and all convictions overturned.
It brings to an end one of the most scrutinised and publicised cases in New Zealand jurisprudence – and the legal and moral ripples will be felt for years.
So what just happened?
In a 152-page ruling released this afternoon, New Zealand’s highest court, the Supreme Court, has unanimously agreed to quash all of Ellis’s 1993 convictions for child sexual abuse.
“We have found that the evidence before the jury in relation to both [section] 23G of the 1908 Act [the now outdated legislation dealing with evidence] and contamination was incorrect or misleading and, in the case of the former, some of it should not have been admitted,” ruled the court. “Those two issues are the principal focus of the judgment. Having addressed all the issues raised with us, we have stood back and considered the case in the round. We have concluded that a miscarriage of justice has occurred and accordingly we allow the appeal and quash the appellant’s convictions.”
Where did this all begin?
This lengthy legal battle started back in 1991 when Ellis was first accused of abusing children at the Christchurch Civic Childcare Centre, where he had been a teacher. Ellis was popular with both children and parents at the creche during his time as a teacher.
In 1993, Ellis was convicted of 16 counts of sexual offending against seven children who had been in Ellis’s care at the childcare centre.
A year later, in 1994, he went to the Court of Appeal in an effort to have his sentence dismissed. The court upheld his sentence, though quashed three of the charges. It is those 13 remaining charges that persisted until being ultimately overturned by the Supreme Court today.
Did Ellis always maintain his innocence?
Yes. He refused to attend parole hearings that would have allowed him to leave prison early because that would involve admitting to the crimes.
One of the alleged victims retracted their claims against Ellis following his conviction, admitting they had said what their mother told them to say.
What happened after the 1994 appeal failed?
Ellis appealed again in 1999, though this was dismissed. While the court was not convinced a miscarriage of justice had taken place, they admitted a Royal Commission of Inquiry could perhaps provide a better examination of the issues raised in Ellis’s plea.
He was released in 2000, having served seven years of his initial sentence, but continued to proclaim his innocence and sought a way to clear his name. A ministerial inquiry in 2001 by Sir Thomas Eichelbaum concluded there was no miscarriage of justice. There were also unsuccessful petitions to parliament for a Royal Commission in 2003, 2008 and 2014.
In 2019, almost two decades after leaving prison, the Supreme Court agreed to look back on Ellis’s convictions. At the time, Ellis was terminally ill with cancer. The wheels of the law turn incredibly slowly and Ellis died before his appeal could be heard. However, in a rare turn, the Supreme Court, relying in part on arguments embedded in tikanga Māori, permitted the appeal to continue posthumously.
Tell me more about this tikanga claim.
The defence had claimed that all people have mana in death, so Ellis had a right to re-establish his mana by clearing his name and that therefore his case should still be heard.
Along with ruling on Ellis’s convictions, the Supreme Court has also today provided reasoning for why it allowed a posthumous appeal. “The court holds unanimously that the appropriate test for deciding whether the discretion to allow an appeal to continue despite the death of the appellant is whether this would be in the interests of justice,” today’s judgment said.
A majority decision in today’s ruling – three judges to two – determined that “the colonial tests for incorporation of tikanga in the common law should no longer apply”. Instead, the relationship between tikanga and the common law will “evolve contextually and as required on a case by case basis”.
Justice Glazebrook, in her majority statement, noted that a posthumous appeal would have been allowed “without considering tikanga”. However she added: “the addition of the tikanga considerations of mana, whanaungatanga, whakapapa, hara and utu supported and strengthened my conclusion on the factors where they were relevant and, in particular, when considering the interests of Mr Ellis and his family and those of the complainants and their families.”
The two dissenting judges “do not consider this a suitable case for the court to make any pronouncements of a general nature about the place of tikanga in the law” but agreed that “tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant”.
Regardless, it’s likely that today’s ruling will set in motion potential shifts in New Zealand’s legal future around the possibility of posthumous court proceedings and the role of tikanga in allowing these to take place.
So the court has determined this was a miscarriage of justice?
Yes – and a “substantial” one at that. The court has concluded that, given the extent of inadmissible material and the extent to which certain evidence departed from “appropriate standards”, evidence may well have affected the verdicts and thereby caused a miscarriage of justice. Part of this focused on the risk that the complainants’ evidence – that is evidence provided at the time by very young alleged victims – was contaminated because of “suggestive parental questioning” prior to giving interviews.
There was also concern about the evidence provided by an expert, Dr Karen Zelas, a specialist psychiatrist. The court has determined that her evidence “lacked balance”, suffered from circular reasoning and commented on the credibility and reliability of the complainants’ evidence, which was not permitted under the law.
What else has the court said about today’s judgment?
In final comments released as part of the court’s summary, it was noted that today “marks the end of a long and painful journey through the courts for the many people involved in this case”.
The court said that the judgment should not be read as a criticism of the parents, the complainants or those involved in the investigation and trial. “The Supreme Court’s focus in this appeal was solely on conducting a careful analysis to evaluate whether a miscarriage of justice had occurred. With the benefit of hindsight, the court considered that the special care and attention required for a case of such unprecedented complexity was underestimated at the time of the investigation and trial and this resulted in a miscarriage of justice.”
Is this the end of the matter?
Yep. “As the appellant has died, the issue of a retrial does not arise,” concluded the court.