Supreme Court to hear convicted child sex offender Peter Ellis' case as he fights to clear his name

Peter Ellis has won the right to go to the Supreme Court to try to clear his name. Photo / Peter Meecham

Convicted child sex offender Peter Ellis has been granted leave to take his nearly 30-year fight to clear his name to the Supreme Court.

Ellis, 61, served seven years of a 10 year jail sentence for abusing seven children at the Christchurch Civic Childcare Centre in 1991.

He had been convicted, after a trial in the High Court at Christchurch in 1993, of 16 counts of sexual offending.

Ellis was released from prison in 2000, but has always maintained his innocence. He now reportedly only has months to live after being diagnosed with terminal cancer.

Today, the Supreme Court said it would hear Ellis' case.

The approved ground of appeal was whether a miscarriage of justice occurred, New Zealand's highest court said.

Ellis has twice appealed to the Court of Appeal, the second time after a referral by the Governor-General.

The first appeal quashed three of his convictions, but the second appeal against the remaining 13 convictions was dismissed in 1999.

After the second Court of Appeal decision there was a Ministerial Inquiry in 2001 by Sir Thomas Eichelbaum, which concluded there was no risk of a miscarriage of justice.

There have also been unsuccessful petitions to Parliament for a Royal Commission in 2003, 2008 and 2014.

Peter Ellis has always maintained his innocence. Photo / File

Ellis, who is understood to have advanced bladder cancer, applied to the Supreme Court for leave to appeal against his convictions last month and also applied for an extension of time to make the application.

The Crown opposed both his applications.

Before determining whether to grant leave to appeal, the Supreme Court first considered whether Ellis should be permitted to bring the application, given the length of time that had passed since his second appeal was dismissed.

In its judgment, the Supreme Court noted the touchstone in deciding whether to grant an extension will always be the interests of justice.

The Supreme Court considered that, despite the delay, the interests of justice require that the application for an extension of time be granted.

At Ellis' trial the evidence-in-chief of the child complainants was given through pre-recorded evidential interviews.

"We understand that the complainants were aged between two and five years at the time of the alleged sexual offending, between five and a half and nine years during the evidential interviews and between six and a half and 10 years during the High Court trial," the Supreme Court judges, Justice Susan Glazebrook, Justice Mark O'Regan and Justice Joe Williams said in their ruling.

"There was also evidence given at trial of alleged behaviours exhibited by the complainants, including toileting and sleep-related difficulties, fear and dislike of Mr Ellis and other adult males, clothing, eating and bathing problems, fear of animals, and masturbation."

A Ministerial Inquiry in 2001 by Sir Thomas Eichelbaum concluded there was no risk of a miscarriage of justice. Photo / Mark Mitchell

At the trial, the Crown's expert witness Dr Karen Zelas testified that all of the behavioural symptoms identified were consistent with childhood sexual abuse.

But Dr Keith Le Page, the defence's expert witness, testified that most of the behavioural symptoms displayed by the complainants were inconsistent with sexual abuse.

"In his view the behaviour was associated with other stressors," the Supreme Court ruling reads.

In his application for leave to appeal to the Supreme Court, Ellis said the complainant interviews fell far short of best practice - even at the time of the alleged offending - and there was a strong possibility of contamination of the evidence.

He also argued the jury was not appropriately assisted at the trial by the expert witnesses, which was unreliable.

In an affidavit, Ellis said he has had counsel assisting him in an unpaid capacity since the inquiry by Sir Thomas.

"In particular, they had been working on applications for a further prerogative of mercy application or a possible Royal Commission," today's ruling reads.

"He had a change of counsel in 2014 and was aware that further work was being done on the transcripts of the evidential interviews of the complainants at the University of Otago.

"He deposes that he has since 2000 relied on his counsel 'to advance matters, including in which forum'. But that he has 'always maintained [his] innocence in this matter and [has] always asked for the matter to be brought through to either the Privy Council or the Supreme Court'."

Peter Ellis pictured with his then lawyer, Judith Ablett-Kerr QC, after an application for his pardon was refused by the Governor-General in 2001. Photo / Peter Meecham

In another affidavit filed just last week, Professor Harlene Hayne, the vice chancellor of the University of Otago, said her involvement with Ellis' case began in 2004.

But, she said, it was not until 2017 that a more focused analysis began.

"Her research team spent in excess of 1000 hours on this analysis," the decision reads.

In opposing the applications, the Crown argued the 20 year delay is "inordinate and unexplained".

The Crown said Ellis has had legal advice available to him throughout his case and at times was granted legal aid.

There has also been no attempt to explain why an application for leave to appeal was not filed earlier, the Crown said.

Any retrial, it said, would also cause major difficulties given the passage of time.

The Crown also argued the substance of the current complaints were aired in front of Ellis' jury there have been only "marginal increases in scientific knowledge over time".