Lost in the furore surrounding ponytail-gate was Justice Minister Amy Adams' rejection of Peter Ellis' request for a Commission of Inquiry into the notorious Christchurch Creche affair.
The minister told Ellis, jailed for 10 years in 1993 on multiple charges of sexual offending of pre-schoolers at the creche where he worked, that "there are proper channels ... to challenge his convictions." Try the Privy Council, she said, or ask the Queen for "the Royal prerogative of mercy".
What she ignores is that "proper channels" have failed Ellis. Two previous ministers have rejected his pleas. So have two High Court appeals, an inquiry by a former chief justice and a petition to Parliament.
The "proper channels" have been more concerned about protecting their reputations and processes. This is summed up in a letter to her Cabinet colleagues in March 2000 where Attorney-General Margaret Wilson, advised against an inquiry, warning "there is a risk that the government will be seen to be casting doubt on the [criminal justice] system."
In the case of Peter Ellis, that's exactly what successive governments should have been doing. They should accept that the justice system is not designed to handle its mistakes well. Here anyway. However the English, from whom we inherited our legal system, conceded the system was flawed nearly 20 years ago. Borrowing from the Scots, they created a Criminal Cases Review Commission to consider miscarriage of justice claims, independently from the rules-bound, court system.
It's an enhancement to the New Zealand system that retired High Court judge Sir Thomas Thorp has been advocating for a decade, his interest sparked after being called in to advise the Ministry of Justice in 1999 on a petition by Ellis for a royal pardon.
A little background. Ellis and other creche staff were victims of an anti-satanist, paedophile-behind-every-tree, wave of hysteria that erupted in Christchurch in late 1991. Following a complaint by one parent, 116 pupils or former pupils were officially interviewed between December 1991 and October 1992, some several times. Meanwhile a parent's "support group" exchanged gossip and overseas reports and pamphlets, including one on "Ritual Child Abuse".
Ellis was charged with sexually abusing 20 pre-schoolers. Four female creche workers were also charged, but these charges were later dropped. Ellis was convicted on 16 counts involving seven children. On appeal, the oldest child recanted her allegations. The judge quashed the related convictions, though expressing his doubts the retractions were genuine.
What doomed Ellis was that the prosecutors refused to present the most bizarre evidence, for fear they would be laughed out of court. And the judge refused to allow the defence to raise this evidence in order to throw doubt on the whole affair.
Against good practice, many of the children were interviewed several times, often over several months. The "formal" interviews took place on average 18 months after the event and 36 per cent of questions were "leading". Children were also subjected to quizzing at home by parents. The claims, many later recanted, included talk of underground tunnels, trapdoors, of children being defecated and urinated on, and forced into steaming hot ovens or buried in coffins, of naked children forced to hurt each other inside a circle of adults.
One boy claimed his belly-button had been removed with pliers. Another, that he had sharp sticks and burning paper inserted into his anus, that three female creche workers had inserted needles into his penis and that he'd been forced to kill a boy. He claimed Ellis' mother had hung five cages, full of children, from the creche ceiling.
Yet no child was found dead or missing, or showed signs of injuries or stress. No one saw anything untoward, despite the creche being open to parents and public.
In his report to the ministry, Sir Thomas said if Ellis' expert evidence questioning the reliability of this testimony was upheld, it would be "difficult to argue against the existence of a serious doubt about the safety of (Ellis') convictions," adding, "There is in my view some merit in the Petitioner's argument that "the jury had to see that the children were capable of outrageous and fanciful allegation".
Proper channels ignored Sir Thomas. Proper channels have failed Ellis and the justice system. So has another justice minister.