Extraordinary times in the Supreme Court in the Peter Ellis appeal

Friday, 8 October 2021

Peter Ellis at New Brighton pier, Christchurch in 2003.

Stuff journalist MARTIN VAN BEYNEN reported on the Peter Ellis trial in 1993. This week he was in the Supreme Court to hear arguments in the Ellis appeal.

In the turmoil of meeting deadlines and keeping up with Covid, it was easy to forget what an extraordinary event was taking place in the Supreme Court this week.

Just to recap, New Zealand’s highest court is hearing an appeal by Christchurch Civic Creche worker Peter Ellis against convictions of sexually abusing children in his care.

At a trial in 1993, Ellis faced 28 charges relating to nine girls and four boys, and was convicted of 16 charges regarding seven children. One girl recanted in 1994, reducing the guilty verdicts to 13 charges.

* Contamination of children's abuse accounts cloud what happened

Dr Fred Seymour is appearing as a witness for the Crown in the Peter Ellis appeal.

* Evidence on behaviour in sexually abused children under attack at Peter Ellis appeal hearing

Let’s count the remarkable aspects of the case this week.

First is the glaring absence of Peter Ellis. He died in September 2019, but the Supreme Court allowed the appeal to proceed, presumably on grounds based on tikanga (Māori customary law).

Ellis was, however, well represented in court this week. His brother, sister-in-law and sister were in court to listen to the proceedings. A small group of victims and their supporters were also on hand and special arrangements were made to keep them out of the public gaze.

The other people missing from the appeal deserve a mention.

Ellis’ fellow workers at the creche – Marie Keys, Gaye Davidson, Debbie Gillespie and Jan Buckingham (deceased) – also faced criminal charges that they had sexually abused children in their care, but the charges were dropped before they were to stand trial.

Ellis, who died in September 2019, photographed in 1993.

Their lives were torn apart by the allegations, and they have as much invested in the result of this appeal as Ellis himself would have had.

Another extraordinary feature of this case is the fact the appeal is about events that happened more than 30 years ago, but for some it is like yesterday.

Rob Harrison, the lawyer who represented Ellis at his trial, is taking the appeal and having a final crack at ending the saga. Junior counsel for the Crown at the Ellis trial, Chris Lange, is also back for the final chapter of the case as an official observer.

The way the Supreme Court has decided to conduct the hearing is in itself highly unusual. The court seldom hears evidence, and for this hearing the experts from both sides are giving their evidence in a panel setting by video link, some from North America and Australia.

The approach encourages the experts to ditch their team colours and advise the court impartially. The method is also more conducive to polite consensus and to differences crystallising.

The experts have pretty much agreed that when young children are not exposed to additional incorrect information and are interviewed using appropriate techniques, they can recall distinctive and stressful events with a high degree of accuracy, even after long delays.

They have accepted that children’s memories of highly stressful and distinctive events are not immune to contamination or being forgotten and, although children are less likely to succumb to suggestion about events that involve their own bodies, under the right circumstances some of them do.

The question is, of course, how the still-developing science on child memory relates to the allegations that convicted Ellis and sent him to jail.

Memory expert Professor Mark Howe is supporting the Ellis appeal from Ontario, Canada.

The first days of the hearing sounded more like an academic conference than how the science related to the case before the court.

This changed during the week and especially on Thursday and Friday, when interview techniques, expert evidence at Ellis’ trial and evidence of contamination of the children’s memories came under scrutiny and were either attacked or defended.

Defence experts concluded the interviews were done incompetently by today’s standards and the Crown experts said the overall standard was good and, although suggestive questioning had occurred, no new allegations surfaced as a result.

‘Unreliable’ evidence

While the court took an inquisitorial approach, it was soon clear where the lines were drawn.

Professor Harlene Hayne, vice-chancellor of Curtin University in Perth, is giving evidence for Ellis.

On the Ellis team was the formidable memory researcher Professor Harlene Hayne, the former vice-chancellor of the University of Otago, who could be relied on for crisp, clear positions and explanations.

She was joined by University of Otago clinical psychologist and memory scientist Associate Professor Deirdre Brown, New Zealand clinical psychologist Dr Tess Patterson and memory expert Professor Mark Howe from Canada.

On the Crown side was Professor Gail Goodman, a renowned memory researcher from the University of California, Dr Frederick Seymour, the former head of the clinical psychology programme at Auckland University, and the redoubtable Auckland clinical psychologist Suzanne Blackwell, who often gives evidence in court about the reliability of sexual abuse accounts.

The gist of the evidence from Hayne and Brown was that the evidence from the complainant children, which directly resulted in Ellis being convicted was, given the present state of knowledge about memory formation in young children, unreliable.

Their main reasons for doubt were the climate of accusation at the time; suggestive parental questioning of the children before they were formally interviewed; children receiving other information, perhaps from books, therapy, other creche children and overheard conversations before their interviews; the lack of impartiality shown by the interviewers; and the interviewers’ use of suggestive questions and other aids.

Even the Crown expert Gail Goodman concluded the contamination of the children's accounts and the long delay between the time of the events and their recounting made it impossible to know what had happened.

Seymour and Blackwell agreed there were opportunities for contamination and the interviewing approach may have been sub-optimal in some respects, but that didn't mean the children weren't telling the truth about being abused by Ellis.

They argued that the aspects said to undermine the veracity of the children’s account were well traversed in the 1993 trial and were considered by the jury.

Interviewers had a difficult job, had to be flexible, and shy or reticent children might need more cues to disclose, they said. Parents more often wanted to talk their children out of accounts that they had been abused.

In a combined statement, the psychologists said that “while it may be the case that children were impacted by parents’ cross-talk and interaction, there is no evidence available to show that this is the case”.

When Harrison pointed to proof that some children (in their interviews) had essentially repeated the allegations against Ellis that their parents had conveyed to them, Seymour had to concede he was wrong.

Blackwell, however, stuck to her guns. She said that while she recognised the potential for contamination, that did not mean there was a “causal link” between the parental questioning and the disclosures.

Troubling behaviour

Dr Tess Patterson criticised the evidence given by Dr Karen Zelas at Ellis’ trial.

The police escaped any criticism during the week but their expert witness in the case, psychiatrist Karen Zelas, did not.

Now a poet, Zelas was an influential figure in highlighting the alleged prevalence of child sex abuse in New Zealand, oversaw the interviewers and advised the police and parents.

She gave expert evidence for the Crown at Ellis’ trial where she identified behavioural symptoms shown by the complainant creche children that were “consistent” with child sexual abuse.

It turns out that any troubling behaviour can be symptomatic of child abuse and abused children can also have no behavioural problems.

Zelas prepared a detailed chart for the trial which showed the myriad symptoms displayed by each of the complainant children that she said were consistent with sexual abuse.

The Evidence Act, as it was at the time, specifically allowed this evidence but Zelas appeared to go a step further. She essentially said it was more likely a child had been abused if they exhibited a cluster of some of the 20 or so behavioural symptoms she catalogued.

Tess Patterson said that even in 1993, there was no evidence of behaviours specific to child abuse and certainly no clusters.

She also attacked Zelas' evidence in which Zelas accepted the troubling behaviours could be due to other factors but appeared to dismiss those factors without exploring whether they could apply.

Again the Crown experts pushed back. Seymour defended Zelas, saying she was doing her duty under the legislation at the time and was entitled to say the characteristics were flags or signs which needed further inquiry. Zelas was not making a diagnosis and the jury was told problematic behaviours could have alternative explanations.

The attack on Zelas did not stop there. It emerged during the week that Zelas had written a long letter to the police in August 1992 expressing serious concerns about leading parental questioning and intense interrogation before some of the children's interviews.

As Hayne pointed out in her evidence, Zelas was cross-examined on memory at Ellis’ trial but failed to repeat “for the court the very serious concerns she had expressed in her letter” to the police.

The weather in Wellington was grim all through the first week of the appeal, with mostly cloudy skies.

It is to be hoped the weather will be better next week. The murk surrounding this case may also dissipate then, when submissions are made.