High Court overturns Peter Ellis’ convictions for child sex offences

The High Court has overturned the convictions of Peter Ellis, a Christchurch nursery worker who was convicted of child sex offenses in 1993, finding a significant miscarriage of justice.

Ellis, who spent seven years in prison, has always maintained his innocence, taking his case to every level of the country’s justice system.

He filed his final appeal with the country’s highest court in 2019, but died of bladder cancer before a hearing could take place.

First, the High Court ruled that his appeal could continue despite his death, a departure from the common law.

Today, in a unanimous verdict, the court’s judges found that a “substantial miscarriage of justice” had occurred as a result of unbalanced or inadmissible expert testimony given during the original trial in 1993, as well as tainted evidence from the child appellants.

Ellis was convicted of 16 counts of sexual offenses against seven children.

The court said the decision marked the end of a “long and painful journey” for many people involved in the case.

“With hindsight, the Court considers that the special care and attention required for a case of such unprecedented complexity was underestimated during the investigation and trial, and this resulted in a miscarriage of justice.”

The court said its decision should not be interpreted as a criticism of the parents, the applicants or the participants in the investigation and trial.

Along with his decision on the merits, he also published his reasons for allowing the appeal to proceed despite Ellis’ death.

In the majority, Justices Winkelman, Glazebrook and Williams said the public interest meant it was in the interest of justice to proceed, and the grounds of appeal were strong and raised systemic issues.

However, Justices O’Regan and Arnold said they would not exercise their discretion to allow the appeal to proceed, saying the high level of stress and public scrutiny of the appeal for the appellants and their whānau outweighed other factors in this case.

They also said they considered the public interest factors to have less weight than the majority of justices gave them, especially given the legislative changes that have occurred since the Ellis trial.

The fact that this verdict was reached was the result of a first court case in this country. The Supreme Court allowed Ellis’ legal team to appeal in 2019, but Ellis died of cancer just weeks later.

Normally, a person’s legal proceedings die with him, but in reasons released at the same time as the verdict, the justices said the public interest and the gravity of a potential miscarriage of justice were reasons to allow the challenge to continue despite his death.

This was Ellis’ third and final appeal. He unsuccessfully took his case to the Court of Appeal in 1994 and 1999, and repeated requests to ministers and the Governor-General for royal prerogatives of mercy were also rejected.

Peter Ellis
photo: Delivered

Two threads – expertise and contamination

Key parts of the decision were whether the expert evidence unfairly and improperly supported the children’s evidence and whether the jury was properly advised of the risk of tainted evidence.

The contamination was compounded by direct and suggestive questioning by the children’s parents prior to their interviews with authorities, the ruling said.

There was also a risk of contagion due to other influences on the applicants outside the interview process.

In both previous appeals, in 1994 and 1999, the court found that the issues had been properly addressed and addressed in the original trial.

But the Supreme Court concluded that jurors were not sufficiently informed about the level of risk of the evidence and that there had been research into the matter in the time since the trial.

It said the evidence given by specialist psychiatrist Karen Zelas, who gave evidence for the Crown, assisted the police investigation and was involved in monitoring interviews of the applicants, lacked balance.

Even based on scientific knowledge in the early 1990s, the court said Dr. Zelas’ evidence “significantly underestimated” or mischaracterized the risk of contamination.

Admitting it at trial was “an error of law,” the Supreme Court said.

Dr. Zelas provided evidence on whether or not a child’s behavior might be consistent with that of sexually abused children, including behaviors such as sleep problems and bedwetting – but also sexual behavior.

“She failed fairly to inform the jury of other possible explanations for the conduct and the dismissed/minimized explanations offered by the defence.

“Dr. Zelas’ multiple roles in relation to the investigation and prosecution may have contributed to this imbalance in her evidence,” the court found.

Reasons for allowing the appeal

The fact that the High Court allowed the case to proceed despite Ellis’ death was something of a precedent in itself, drawing attention to the inclusion of tikanga Māori and whether it was relevant in this case.

Along with its decision on the merits today, the Supreme Court released its reasoning and thinking behind its decision to allow Ellis’ appeal to proceed.

In 2019, at the suggestion of the judges themselves, Ellis’ lawyers argued that tikanga was part of New Zealand’s common law.

Under tikanga, the customary rules that govern Maori life, Ellis will have the right to clear his name or restore his mana even if he is dead. In Māoridom, mana and reputation continue in the whakapapa, not in the life of the individual.

This raised interest in legal circles about the potentially far-reaching precedent such a decision could set.

For years, tikanga Māori has been increasingly recognized by the courts and legislation, but the reasoning of the country’s highest court was expected to clarify questions about how two systems and worldviews can be mixed.

Even among Māori there was concern whether Crown institutions such as the courts should ever be the arbiter of tikanga.

Yet in the judgment published today, the judges said that granting the continued appeal was specifically related to Peter Ellis’s circumstances, in terms of public interest, concern and the possibility of a miscarriage of justice.

While considerations of the continuing reputation of Tikanga and Ellis may be involved, they said, it sits alongside other factors such as the interests of finality, the weight of personal and public interest and whether there is a potential miscarriage of justice to be considered.

Three of the justices – O’Regan, Glazebrook and Arnold – wrote that while tikanga may be relevant, it “does not necessitate a change in the test set out”.

The majority of judges also said the public interest in Peter Ellis’ case meant it was in the interests of justice to allow the appeal to proceed. “The grounds of appeal are strong and raise systemic issues,” they wrote.

Other issues raised by Ellis’ legal team

The judge’s substantive decision commented on other points contested by Ellis’ attorneys.

They said “allegations that could be described as fantastical” arising from interviews with complainants that could have helped the defense if played at trial did not increase the risk of a miscarriage of justice.

The courts said the fact that jurors were given transcripts of interviews played by the Crown at trial but not those played by the defense was unsatisfactory, but would not allow an appeal to proceed on that basis alone.

And it said the medical evidence about the complaints given at the trial, when judged against today’s standards, was false and was another cause for concern about the sentence.