Peter Ellis’ convictions for horrific child sex abuse crimes set early 1990s conservative Christchurch into a panic. Now, 30 years later and three years after his death, Ellis has had his name cleared.
After three decades as a convicted child abuser, childcare worker Peter Ellis has posthumously had his name cleared in a landmark Supreme Court decision.
Ellis was convicted on 16 counts of sexual abuse against seven children in his care at the Christchurch Civic Creche in June 1993. The case has been highly controversial, largely thanks to the belief the children’s accounts were “contaminated” and that Ellis did not receive a fair trial as a young gay man in a more conservative time.
He spent seven years in jail as a result of his convictions, but maintained his innocence up until his death from bladder cancer in 2019. The Supreme Court granted leave to appeal that same year but Ellis died before the hearing. However, it was ruled the appeal be allowed to continue in 2020 despite his death – a legal first.
In a judgment released today, the Supreme Court quashed all of his convictions, citing a substantial miscarriage of justice relating to expert evidence given at trial, and the contamination of the complainants’ own evidence from outside influences, most significantly direct questioning from the parents involved.
A central figure in this miscarriage of justice is child psychiatrist Karen Zelas, who gave evidence on behalf of the Crown but also supervised the children’s interviews and helped police with the investigation.
Zelas was president of the Royal Australian and New Zealand College of Psychiatrists between 1989 and 1991, the body responsible for the training and education of psychiatrists in Australia and New Zealand.
The court found Zelas “exceeded the proper bounds” of the 1908 Evidence Act, namely: she commented on the credibility and the reliability of the complainants’ evidence, which wasn’t permitted; her evidence lacked balance in that she didn’t present any other possible explanations for the 20 behaviours – many of those common in childhood – she presented as being consistent with sexual abuse and problematically suggested the fact a child had alleged abuse transformed those normal behaviours into symptoms of that abuse.
“The overall effect of Dr Zelas’ evidence was to incorrectly suggest to the jury that ‘clusters’ of behaviours supported a finding of sexual abuse. That impression was compounded by the chart the Crown produced at trial, which was itself an unbalanced and unfair representation of the evidence it purported to summarise.”
The admission of her evidence was ultimately found to be an error of law.
In terms of the contamination of evidence, the risk was found to have been higher than the jury was led to believe and that, had it in fact occurred, it would not have been readily detectable.
Professor Harlene Hayne gave evidence on behalf of Ellis saying the level of risk was high, pointing to potential contamination resulting from “meetings between parents of the complainants during the investigatory phase; discussions between parents and complainants about the allegations; parent-to-parent discussions; and complainant-to-complainant discussions”.
The Crown’s Professor Gail Goodman largely agreed, saying the contamination risk in four of the complainants was high, and moderate to low in the remaining two.
The judgment found Zelas’ evidence understated or mischaracterised this risk, and was not counteracted. The court also thought it significant she had expressed concern about potential contamination before trial, which never made it into the trial itself.
“If the jury had been correctly informed of the level of risk, that may have created a reasonable doubt about the allegations made, at least in relation to some of the complainants. As the evidence of the complainants was mutually supportive, the undermining of some of the verdicts necessarily calls into question all of the verdicts.”
This is not the first time Zelas’ work has been criticised.
In 2003, the Christchurch psychiatrist and psychotherapist was blamed for a miscarriage of justice in another sex abuse case. The Court of Appeal found she had “gratuitously” exceeded the scope of permissible expert opinion.
Zelas left psychiatry in 2006 to write poetry, fiction and plays.
Finally, the court said today’s ruling marked “the end of a long and painful journey through the courts” for those involved, making pains to point out the findings were not a criticism of the parents, who must have found themselves in an “impossible position”.
“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.”
One of those caught up in that painful journey was the child who retracted her evidence during the first appeal, saying she’d never been abused by Ellis.
She told Newsroom today’s outcome was a “huge relief” and she was “emotional, but happy”.
“It shouldn’t have taken 30 years but at last the truth is out. I hope that something is learned from this and that the situation will never repeat itself. My love to Peter’s family, I wish him and his mother were alive to see this day.”
Gaye Davidson, the creche supervisor and one of the four women charged initially before the charges against the women were dropped, told Newsroom she was “stunned and extremely happy” to hear the news.
“Words seem inadequate in covering the range of emotions I’m going through right now. The biggest regret is that Peter is not alive to embrace what he had been fighting for, the chance to prove his innocence and therefore ours as well. While our charges were quashed, I have carried the burden of what I went through since then as I am sure the others have too.”
Today’s unprecedented finding is unique in that it involved the unusual argument of tikanga Māori.
In the nearly three decades between the conviction and Ellis’ death, he appealed his convictions several times. Three of his convictions were set aside in 1994 by the Court of Appeal after one child recanted her evidence, but the overall appeal was dismissed. A second unsuccessful appeal occurred in 1999. Several applications for the exercise of the Royal prerogative of mercy were also turned down, but did lead to a ministerial inquiry, which eventually determined in 2002 there was no proof his convictions were unsafe.
His groundbreaking case is now the first time a conviction has been appealed and won by a dead person in Aotearoa. And it was all because of the Supreme Court justices themselves, with Justice Susan Glazebrook suggesting the Crown address the “tikanga aspects” of the case.
Tikanga Māori is a holistic concept that describes, among other things, the values and protocols of te ao Māori. One of these customs is that a person’s mana is important not just in life but also in death – what might be described as their reputation or legacy.
Ellis’ lawyer, Rob Harrison, is profoundly relieved.
“It’s a fantastic feeling to have this resolved after all these years. I’m delighted with the tikanga aspect of the decision and absolutely delighted with the grounds for overturning the conviction.”
“I feel a great relief. It’s tinged with sadness because Peter and his mum can’t be here to hear this but I’m heartened the family is here and they have had the chance to hear what’s been a very long time coming. Justice has prevailed.”
In the early 1990s before Ellis was convicted, journalist Melanie Reid secretly interviewed him in a string of rundown Christchurch motels while his case was still sub judice.
Newsroom Investigates has dusted off these never-before-seen interviews in a new in-depth series Peter Ellis, the creche case and me launching on Monday.