Steve Braunias: Dead for two years, the ghost of Peter Ellis haunts the Supreme Court

Opinion

Sometimes it can seem that the last thing anyone talks about in the case of Peter Ellis is the possibility that he actually did commit all or some of the depraved sex acts on pre-schoolers at the Christchurch Civic Creche, and that the jury at his 1993 trial delivered the correct verdict, and that he was rightly imprisoned, and that when he died in 2019, aged 61, he breathed his last as a convicted paedophile who ought to rot in hell. You really don't hear a lot of that sort of thing. Even in the moral climate of #MeToo, and its presumption of guilt, popular support for allegedly one of New Zealand's worst sex offenders remains strong.

It's led, these past two weeks, to a posthumous appeal – the first of its kind – heard at the Supreme Court in Wellington. Rob Harrison appeared for Ellis. He ran through the expected subjects. According to Harrison, interviews with the children were "contaminated" by their own parents, the use of anatomical dolls was kind of crazy, the jury was unable to hear new research into false memories, and it's difficult for little kids to remember anything at all due to a fact that every parent can vouch for, which is to say little kids, while adorable and just about the best thing in life, are idiots.

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His central point was that the allegations were unreliable. The kids didn't know what they were saying. The parents who collected their stories were asking for trouble, and wouldn't be satisfied until they found it. Harrison reminded the Supreme Court that the case began when one child came home from creche and said, "I don't like Peter's black penis." At depositions, the child's parent said, "I have a strong belief that secrecy in sexual abuse can keep it happening. I felt it needed to be talked about … . When my child first talked to me, because of my work in sexual abuse, I knew it was rare for only one child to be abused and I knew from profiles of abusers that they are attracted to work with children." Question, at depositions: "So really, from when your child made the comments about Peter's 'black penis', in your mind you believed there had been widespread abuse at the crèche?" Answer: "I believed it was highly likely."

Harrison concluded, "So that was their mind-set." The whole thing, he continued, was a travesty, a desperate need to burn someone at the stake, a demented example of "magical thinking".

You're really not going to get all that far in any kind of similar argument protesting the innocence of a Weinstein. Odious to compare Ellis with that mad thug, but what about the principle of describing alleged victims – in 2021 parlance, survivors – of sexual assault as fabricators and liars? It's strange in that light to read A City Possessed, author Lynley Hood's 2001 unrelenting critique of Ellis' conviction, in 2021. "Child sexual abuse happens," she writes. "It may or may not cause lasting harm." Sorry, what? She repeats the blithe assertion: "Is sexual abuse just one of many adverse childhood experiences that may or may not cause lasting harm? Clearly, the only answer is: we don't know." Hood then goes to war on post-traumatic stress disorder [PTSD]: "Counsellors often use PTSD as a Trojan horse with which to invade the privacy of shocked survivors, even though everyday experience suggests that such people would be better off with a kind word and a nice cup of tea."

A downcast Peter Ellis contemplates what's next after an application for his pardon was refused by the Governor-General in March, 2001. Photo / Peter Meecham

And a boot up the bum to get them back on their feet, or whatever. Hood's views have not exactly aged well. But her demolition of the case against Ellis is an outstanding piece of work, and it backs up her thesis that Ellis was broken on the wheel of a hysterical fear. Hood describes the moral climate operating at that time as "a child sexual abuse panic". Some parents, she claims in A City Possessed, were motivated by the lure of ACC payments when they accused Ellis. Others had even lower motives than money: ideology. "Five of the 21 complainant parents in the trial of Peter Ellis worked in the sexual abuse field," she writes. To Hood, people working in the sexual abuse field were ideologues, a bunch of zealots who had even worse ideas than counsellors with their thoughts on PTSD.

One thing to attempt to invalidate their profession. Journalists are used to being hated and none of us lose any sleep over it. Another thing entirely to try to invalidate the belief of parents that their children suffered sexual abuse. Again, the nexus of the Peter Ellis case is the brutal rejection of people who have outlined multiple cases of sexual abuse; again, that's not the way you ought to go about things in 2021. But there's an important distinction being made in the Ellis conviction. It's not really the alleged victims who are being disbelieved: it's the adults (parents, as well as police and sexual abuse workers) who supposedly twisted their stories. Most of Hood's scorn in A City Possessed is reserved for the police investigation, and the expert witnesses who gave evidence against Ellis. There have been three petitions, to the Governor-General and Parliament, requesting a Royal Commission of Inquiry to look into the Ellis case. The most recent was in 2003. Among the signatories were Winston Peters, Leighton Smith, Keri Hulme, Judith Collins, Bob Jones, Donna Chisholm, Michael King, Garrick Tremain and David Lange. Anyone can relate to a miscarriage of justice, no matter the moral climate.

There was something hapless in the manner and demeanour of John Billington, QC, when he appeared for the Crown at the Supreme Court this week. It was almost as though he didn't really have his heart in it. On Thursday, he was reduced to saying to the five judges on the bench, "It is what it is. Which is a pretty poor submission to make, isn't it?" The judges left the question hanging.

But this is a little bit unfair to Billington, and it pictures him as the last man standing with a good word to say about the prosecution of Peter Ellis. Certainly he has history on his side. A year after he was jailed, Ellis appealed against his conviction. It was dismissed by the Court of Appeal. It was dismissed again, in 1999. In 2000, Sir Thomas Eichelbaum was appointed to inquire into the Ellis case, and concluded there were no doubts about the reliability of the children's evidence that would render the conviction as unsafe. At the Supreme Court, Billington set about trying to establish that nothing much has changed, that the conviction is good for all seasons. For the defence, Rob Harrison presented new ways of thinking about memory, to cast particular doubt on the stories the children claimed to remember - and the experts who believed those stories.

Lynley Hood attended the hearing via VMR, at her Dunedin home; she was mentioned now and then in proceedings, but another author was the subject of much more intense debate. Dr Karen Zelas is a former child psychiatrist. She backed the validity of the children's stories as an expert witness for the Crown in the 1993 trial. Hood reserves a special scorn for her in A City Possessed. Zelas is now an author. Vanity publishers have brought forth slim volumes of her verse ("you breached the testosterone citadel"!) and novels, including Resolutions, the first in a projected series featuring family lawyer Rebecca Eaton: "Pressure mounts as a Family Court case escalates to tragedy. Rebecca is grief-stricken and feels unreasonably responsible. Her competence is questioned, media hound her … "

Peter Ellis and his lawyer Judith Ablett-Kerr, QC, at a press conference in February, 2000. Photo / Mark Mitchell

Zelas famously appeared on the Holmes show to discuss the accusations swirling around the Christchurch Civic Creche before charges were brought against Ellis. Famously, that is, to everyone except herself: she said in cross-examination at the 1993 trial that she had never appeared on TV to discuss the case. "Not that I'm aware of. I certainly don't remember it. If I did, it was about a different topic." Harrison quoted from the cross-exam at the Supreme Court. In a case that hinges on memory here was someone who couldn't remember appearing on Holmes a year before the trial. "It was the major show I think in New Zealand at the time," Harrison told the five judges. "It wasn't a 10 o'clock at night programme. It was in primetime. The Holmes show." Justice Terence Arnold laughed, and said, "We're all old enough to remember it."

The subject of an expert witness for the Crown appearing on the major show in New Zealand before she gave evidence at the Ellis trial prompted Billington's pretty poor submission, "It is what it is." The point of her appearance on Holmes, according to Harrison, was that it compromised her status as an impartial expert witness.

Billington told the court, "If I had been sitting in the defence counsel's chair at the time it would have raised concerns with me. All I can ask you to do now is stand back and take the totality of that evidence. I do not find this evidence offensive. That's my perspective. That's just me. I find a suitably qualified person doing what is required of her. There is nothing, beyond perhaps the discussion of anatomic dolls, which really offends current knowledge. But that's just me. You have to look at it and say, 'Well, has knowledge [of childhood memory] changed so much that her evidence is simply wrong across the board?' You need to be driven to a point where you are satisfied that something has gone so wrong with this case that a miscarriage of justice has occurred."

Peter Ellis fighting back tears during a press conference in February, 2000. Photo / Mark Mitchell

Quite. Harrison talked about the absence of corroborating evidence: "You can't place a piece of burning paper up a child's bum," he said, referring to one of the accusations against Ellis, "and think no one's going to notice." He talked about the proven inaccuracy of some of the children's stories: "One said he referred to Mr Ellis driving him in a car. But Mr Ellis couldn't drive." He talked about Billington's submission that photos of naked children had been found: "Naked backs," interrupted Justice O'Regan. "Naked backs," Harrison said, correcting himself. Two kids at the creche had their backs painted, and a photo was given to one of the mothers. "So it's not as if it had been hidden away. It's not as though it's been found. It was handed over to a parent who had no concerns about it."

He talked about Ellis' habit of openly discussing "bizarre sexual practices" with staff at the creche: "What's really significant is that there were never any kind of conversations when he referred to children in a sexual manner." As for why Ellis would even talk about golden showers and other pastimes in the first place, Harrison came up with a striking metaphor which may never have been previously uttered in a New Zealand court of law: "You might say that he had a bit of a mouth on him like a torn pocket." What? "Nothing was filtered," he added, helpfully.

So, much of the hearing has been about the children at the Christchurch Civic Creche, and their parents, and the experts who had opinions on their stories. Ellis himself was seldom discussed. Harrison's description brought him into view and then he faded again; dead for two years, his ghost haunting the Supreme Court, where Chief Justice Helen Winkelmann and her four cohorts will pass judgment on his memory.