Peter Ellis (childcare worker)

Peter Hugh McGregor Ellis (born 30 March 1958) is a former Christchurch child care worker who has been at the centre of one of New Zealand's most enduring judicial controversies. In June 1993 Ellis was found guilty in the High Court on 16 counts of sexual offences involving children in his care at the Christchurch Civic Creche and was sentenced to 10 years' imprisonment. His conviction has been strongly criticised, with concerns centering on how the children's testimony was obtained and presented to the jury.

Ellis has always maintained his innocence and many New Zealanders have supported calls to overturn his convictions. In 1994, the Court of Appeal quashed convictions on three of the charges but upheld the sentence. His conviction and sentence were upheld for a second time in the Court of Appeal, in October 1999. Ellis was released in February 2000 after serving almost seven years in prison.

In March 2000, Chief Justice Sir Thomas Eichelbaum conducted a ministerial inquiry reviewing the children's evidence. His report, which has been widely criticised,^[1] upheld the guilty verdicts. The same month Governor-General Sir Michael Hardie Boys rejected Ellis' third bid for pardon on the advice of Justice Minister Phil Goff, who was satisfied with the finding of former Chief Justice Sir Thomas Eichelbaum that Ellis had failed to prove his convictions were unsafe.

Two books and numerous articles^[2] have been written about the case. Ellis continues to campaign to clear his name, in 2011 he announced intention to lodge a fourth petition for pardon with the Governor General. The case itself was a part of a slew of similar cases in the United States–known as the day care sexual abuse hysteria–a moral panic that originated out of California in 1982 and that existed throughout the 1980s. The hysteria, as well as Ellis' conviction, has also been cited as a major cause in the decline in the number of male teachers in New Zealand schools. ^[3]

Personal life

Ellis is the eldest of four children. His parents were teachers who separated when he was nine. He left school at the end of 1975 and went tobacco picking in Motueka. After two years overseas, he returned to New Zealand and spent some time unemployed. He had a part-time job in a bakery in the early 1980s which eventually became full-time. When he left this job and applied for an unemployment benefit, authorities discovered he had received dole payments to which he was not entitled. He was prosecuted and convicted in 1986 of "misleading a social welfare officer", and sentenced to 80 hours community service.

In August 1986, Ellis carried out his community service at the Christchurch Civic Creche. His supervisor, Dora Reinfeld, later reported that "Peter ... provided some hilarious puppetry shows – one of which we had to abandon as staff and children 'got out of hand'". Ellis became a relieving worker, and Reinfeld's next monthly report said: "Peter Ellis has fitted in extremely well and puts lots of energy into programme planning. Fantastic team spirit".^[4] Ellis's pre-sentencing report said "The overall picture gained of Peter Ellis is that of an outgoing, uninhibited, unconventional person given to putting plenty of enthusiasm and energy into his work and social activities, sometimes to the point of being risqué and outrageous".^[5]

Before his imprisonment, Ellis had sexual relationships lasting for periods of two to five years with both men and women. He told Lynley Hood "In a relationship with a woman I was, for want of a better word, bisexual, and with a man I was monogamous". When working for the Civic Creche, Ellis was described by Hood as "blatantly homosexual".^[4]

In 2005, he suffered a heart attack and required hospitalisation.

Conviction

After completing his community work, Ellis began full-time employment at the Civic Creche from 15 September 1986 until 21 November 1991, when he was suspended. On 30 March 1992, Ellis was arrested and charged with sexually abusing a child at the creche. By the time of his depositions hearing in November 1992, he had been charged with 45 sexual offences involving 20 young children. Four female co-workers were charged with similar offences. At his trial, Ellis faced 28 charges involving 13 children. In June 1993, he was found guilty on 16 charges and was sentenced to 10 years' imprisonment. He was released on parole on 2 February 2000 after serving the mandatory two-thirds of his sentence. Although eligible for parole from March 1998, Ellis refused to appear before the parole board, saying he would prefer to stay in jail if accepting parole required him to admit to a crime that he did not commit.^[6]

Investigations

The creche building in January 2006. The door to the toilet lobby, clearly visible, has not been changed since 1991. It features a large glass window and was kept open during the daily operation of the creche. The premises continued to operate as a day care centre until February 2011.

The case began in November 1991 when a mother, who was a sexual abuse counsellor and a self-claimed victim of sexual abuse, allegedly heard her four-year-old son say that he "didn't like Peter's black penis."^[7] Ellis was placed on leave subject to an internal investigation. When formally interviewed by the Department of Social Welfare [DSW] the boy, and five other children suspected of having been abused, made no disclosures of sexual abuse. No charges were laid. The boy who made the original complaint was moved to another creche where his mother again accused a male creche worker of sexually abusing her son. No charges were laid.

In December 1991, Detective Colin Eade advised the creche's employer, the Christchurch City Council, about the allegations. Eade wrote: "To date there have been no disclosures of any sort of indecent touching by any person employed at the Child Care centre…[t]he reasons the parents, Ms Sidey [DSW] and myself were so concerned at the start of this enquiry, were that the children were displaying some behaviour that we often attribute to sexual abuse". Later in his letter Eade said the children who were interviewed by Sidey had a "general fear" of Ellis and this fear “may affect their behaviour for some time to come.” He commented that it was clear to him that Ellis “should not be involved in any way in the supervision or care of children. I believe that we were very lucky to have this brought to our attention at this stage. If he had continued on at the Centre, things could have got worse”. At that stage, Eade had not interviewed Peter Ellis. Eade had no expertise in early childhood education.

While the initial police investigation into the creche had officially concluded, children continued to be formally interviewed. Department of Social welfare evidential interviewer, Sue Sidey, testified at trial that she conducted interviews throughout January 1992. "Thereafter I continued interviewing those children whose parents had concerns". Detective Eade was on leave during January 1992. As soon as he returned to work, Eade was advised that a child, who had not attended the creche, had disclosed sexual abuse. A new investigation then began into allegations of sexual abuse at the Civic Creche. When, over ten months later, this investigation had concluded, police believed at least ten offenders had sexually abused children at the Civic Crèche and eighty children were involved.^[8]

In March 1992, the police arranged for a meeting of parents whose children had attended the creche. This was the second time that parents had publicly met to discuss their concerns about the possible sexual abuse of children. The Christchurch City Council sent a letter to every parent whose child had attended the creche during the period of Ellis’ employment. The letter informed parents that a meeting was to be held in the hall of the Knox church on 31 March 1992. The letter advised parents not to speak to their children about the police investigation. The letter said such advice did not apply to any parent who was “already aware of the circumstances [of the investigation] or has already been in contact with the Police”. The letter stated that a psychologist "dealing with persons who offend against children" would be present at the meeting, and information from the Accident Compensation Commission would be available. At the time the letter was sent, police had not interviewed Ellis or other creche workers. The police arrested Ellis on 30 March and newspapers reported the arrest the following morning, the day of the parents' meeting.

During the depositions hearing into the charges against Ellis, Sue Sidey said she might have told parents at the meeting that some of the indicators of sexual abuse were bedwetting, tantrums and nightmares. Sidey's supervisor, psychiatrist Karen Zelas, testified at trial that there are behavioural factors, which the crèche complainants allegedly exhibited, that are "consistent with" sexual abuse. Bedwetting, nightmares, anxiety, stomach aches were all, she said, consistent with sexual abuse. She did not say that the complainants had been sexually abused, or that she believed they had been abused.

Children's forensic interviews

At least 118 children were interviewed as part of the second investigation into allegations of sexual abuse. Some had allegedly made allegations to their parents. Some were formally interviewed after they had been mentioned in abuse allegations made by other children. Many were interviewed following advice given to parents by police, sexual abuse counsellors and therapists. Some children were formally interviewed up to six times. One of the complainants upon whose evidence Ellis was convicted was formally interviewed over an eight-month period.

Since 1996 the New Zealand Department of Child, Youth and Family Services has recommended that children who are interviewed to determine if they have been abused should undergo only one evidential interview.^[9][10] Professor Stephen J. Ceci of Cornell University, an expert in children's suggestibility and children's courtroom testimony, has studied transcripts of many of the children's evidential interviews. In July 1995 he said the interviews "were not conducted in accordance with currently understood scientific principles".^[11] According to Ceci, it is impossible to distinguish between accurate and inaccurate allegations when children are suggestively and repeatedly interviewed over a long period.

Contrary to best practice guidelines,^[12] parents and interviewers discussed children's abuse-allegations that had been previously elicited by parents. Department of Social Welfare specialist interviewers Lynda Morgan and Sue Sidey both testified that they would then try to elicit the same allegations from the child. They would not try to determine if the allegations were reliable nor explore all possible origins of the children's allegations. One mother reportedly told her son's interviewer that she had repeatedly asked him direct questions. She said she was told she had done nothing wrong (Bander, 1997).

During the forensic interviews, children were asked if they had anything to say about the Civic Creche. Few allegations of abuse emerged during this phase of the interviews. Later in the interviews, many specific and direct questions were employed to elicit allegations that children had made to their parents. A number of suggestive and leading questions were asked. Questions were sometimes repeated when the child had already provided an answer. Children were seldom advised that it was acceptable to say "I don't know" or "I can't remember". Sue Sidey testified that "don't knows" and "can't remembers" were often "anxious responses". She provided no evidence to support her claim.

Anatomically correct dolls were used. Best practice for forensic interviewing now stipulates that interviewers should not employ such dolls. Best practice also stipulates that an interviewer should try to ascertain the source of a child's claims. Interviewers generally didn't ask children what they had previously heard or had been told about the case. They didn't ask the children what their parents had said to them about Peter Ellis or the Civic Creche. The evidential interviewers seldom probed children's bizarre allegations and sometimes ignored their own guidelines. One complainant told Sue Sidey on 14 occasions that she wanted to leave the interviewing room. Sidey testified at trial that the child appeared to be "very anxious".

Other creche workers implicated

Four female co-workers of Ellis were arrested on 1 October 1992. At depositions they faced 15 charges that included sexual violation, indecent assault and one charge of performing an indecent act in a public place. The charges were dropped, after depositions, on three grounds: firstly that evidence against them was of insufficient weight to justify a trial; secondly that there was so great a potential for prejudice against them that they might be convicted for the “wrong reasons”; thirdly that the unavoidable delay in their trial may have resulted in hardship to the child involved. In March 1995 they, and six other former staff who had also lost their jobs when the creche was closed in September 1992, were awarded $1 million by the Employment Court. This was later reduced to $170,000 by the Court of Appeal in September 1996.^[13]

Following the first investigation into allegations of abuse at the creche, the Christchurch City Council requested that psychologist and sex therapist, Rosemary Smart, review the management practices at the crèche. The review of the management of the Civic Creche was in response to "incidents of alleged sexual abuse of children at the Centre over a period of six years by a male staff member" (Smart, 1992). Smart's report quoted from Finkelhor's Nursery Crimes: sexual abuse in day care (1988), supplied to Smart by the office of Ian Hassall, then Commissioner for Children. It is an examination of an epidemic of alleged sexual abuse, including satanic ritual abuse, in US day care centres. In her report's introduction Smart said that sexual abuse in creches was a "phenomenon" and of "substantial concern for parents with children in care".

Smart's report did not mention any details of mass allegation creche cases. In the (1985) Wee Care Nursery School case, Kelly Michaels, a childcare worker, was charged with 235 counts of sexual abuse, She was found guilty on 115 counts involving 20 children and sentenced to 47 years in prison. She served five years before her convictions were overturned. In the McMartin preschool trial, then the most expensive in US criminal history, childcare worker Raymond Buckey and his 78-year-old grandmother were among the seven accused. None were convicted. Buckey was remanded in prison for five years until 1990 when all remaining charges were dropped. A former FBI agent, Lanning (1991), reported that investigations into more than 300 alleged multi-victim, multi-offender ritual sexual abuse cases had produced no physical evidence of abuse.

Rosemary Smart's report was critical of creche staff for failing to notice signs that children had allegedly been abused by Peter Ellis. Smart provided no evidence that children had been sexually abused. Smart suggested that staff might have been directly or indirectly involved with abuse at the Civic Creche. She claimed "[the staff's] knowledge of the detection and response to sexual abuse was minimal to non-existent". She wrote that "there have been few cases where staff members have been the source of sexual abuse disclosures by children" and, quoting Finkelhor, "this is because of "many disincentives, a great deal of reticence and reluctance to report, massive ignorance and inattention, as well as a few cases of actual covering up of abuse on the part of staff"". The crèche staff that Rosemary Smart spoke to "did not know of any incidents of sexual abuse of the children under their care".

Smart's report, a copy of which was given to police, was completed in July 1992. The report stands in marked contrast to another report made by the Education Review Office. The Education Review Office is a government department that undertakes periodic three-yearly reviews of all school and pre-school facilities in New Zealand. Coincidentally, in the week following the suspension of Peter Ellis, Education Review Office inspectors spent a full week at the Civic Crèche, observing its daily operation. The office subsequently issued a highly favourable report stating that "The staff ensure personal needs are met with warmth, care and consideration. The children appear happy, inquisitive and sociable" and that "...they [the children] have high self-esteem."^[8][14]

On 3 September 1992, following discussions between the City Council, Ministry of Education and police, the Civic Creche was closed.

Trial

At trial, Ellis faced 28 charges involving 13 children. He was charged with, among other things, urinating in a boy's face, placing his penis against a girl's vagina, placing his penis on her anus, touching a girl's vagina and inducing a girl to touch his penis. Some children alleged that he drove them in a white car to his flat in Hereford St, where they were allegedly abused. Most of the alleged abuse occurred in the toilets at the creche. "The offences were alleged to have taken place at unspecified times and dates between 1 May 1986 (four months before Ellis came to the creche) and 1 October 1992 (11 months after he left the creche, and one month after the creche was closed) (Hood, 2001)". Barristers Rob Harrison and Siobhan McNulty represented Ellis; Brent Stanaway and Chris Lange appeared for the Crown.

The complainants testified by two separate means: pre-recorded videotaped interviews conducted by Department of Social Welfare officers (evidence in chief); testimony via a closed circuit TV link to the children, who were outside the courtroom. Prosecutors had sanitised some of the charges so that few of the bizarre allegations were heard. Rulings by the judge, Neil Williamson, meant that the playing of videotaped interviews not specific to the charges were subject to restrictions. The defence was permitted to play tapes of their choice, but the following applied: unlike prosecution tapes, the child complainants did not have to view defence tapes; in contrast to the prosecution tapes, the jury did not receive a transcript of tapes played by the defence. Before testifying, the children watched portions of their tapes, upon which the prosecution relied, but did not view defence-onus tapes in which they had denied being abused or had made bizarre allegations. Each complainant was accompanied in the CCTV room by an adult, usually a social worker who had been counselling the child in the months leading up to the trial.

Peter Ellis testified that on the occasions he took children for walks, he was accompanied by an adult 75% of the time. The only two bus trips he had taken with children were well documented and had involved other staff members. He stated that he walked to work, did not take a bus and that he did not know the bus timetables. He later qualified that statement and said that sometimes, when it was raining, he would catch a bus to work. He said that whenever possible he would try to avoid nappy [diaper] changes "and things like that". He accepted that he was "often in the toilets alone with children", as were other creche workers. He said that he had never had a driver's licence and had never owned a car. He could drive a car but he "wouldn't recommend anyone getting into it [with him]". He said he would sometimes wear track suit pants without wearing underwear. He did this, he said, because he suffered from psoriasis.

The Crown prosecutor, Brent Stanaway, argued that Ellis took children on walks ostensibly so he could abuse them. Stanaway said there were only two walks recorded in the creche logbook for February 1990. Ellis said that the creche had moved to new premises near that time and that may have been the reason why there were fewer walks during that month. Ellis said he would sometimes forget to record details of the walks. If he was in a hurry, he would notify one of the creche staff and ask them to record the details. He said he didn't wear a watch but that walks lasted no longer than an hour and ten minutes. One of Ellis's colleagues testified that some walks lasted two hours or longer, but others confirmed Ellis's estimate.

One creche worker testified that Ellis had told her about taking photos of adult sex acts. Another said that Ellis had talked to her about "golden showers". It was alleged that Ellis and his mother had taken photos of adults engaged in sex. Ellis testified that he had not spoken to any creche worker about "golden showers".^[5] He admitted that he had talked about photos of sex acts with a colleague but that he was "having her on". Ellis owned a camera, as did the Civic Creche. An extensive police investigation turned up no photos of adult (or child) sex acts.

Two general practitioners of medicine appeared for the Crown. They testified about medical examinations of complainant children which were undertaken to record any physical evidence that supported sexual abuse. Their evidence neither confirmed nor excluded the possibility of sexual abuse. Both testified that abuse involving the trauma that was alleged by some of the children, such as insertion of sticks and burning paper into the anus, would result in severe pain and distress to children of that age and that such discomfort might last for days, dependent on its severity.^[15][16]

At least two of the children repeated claims that many adults had been involved in the abuse of children. Spike, Boulderhead, Yuckhead, Stupidhead and other names were mentioned. Several children testified that their parents had questioned them about Ellis. The questions bore a resemblance to the nature of the charges. For example, one boy testified that his mother had asked him if Ellis had urinated in his face. He said his mother had been told by other parents what Ellis had done to him. One girl said she "learnt about all the things Peter did" before being formally interviewed. When asked who taught her, she replied: "Cathy [a specialist interviewer], and she told me what Peter did". The other interviewers denied coaching the children before their interviews. However, during Lynda Morgan's interview of child O (court code) , the only complainant to be interviewed only once, the child agreed with Morgan that she had spoken to Sue Sidey before the interview.

Psychiatrist Karen Zelas was the prosecution's expert witness. She had advised police during their investigation as to how they should collect evidence. She had trained and overseen the interviewers and had attended the second parents' meeting. She had previously advised judges on how child sexual abuse cases should be prosecuted. She contributed to the formulation of section 23G of the Evidence Act, under which an expert can say that certain behaviours are "consistent with" sexual abuse. Scientists and research-based experts that do not have a clinical background are not permitted to testify in cases of sexual abuse.

Zelas testified that the complainants were credible and their evidence was plausible. Their behaviour, she said, was consistent with sexual abuse. When asked what behaviour was inconsistent with sexual abuse, Zelas replied: "I hadn't thought about that". She testified that direct questions were acceptable and useful. "There is a substantial body of research evidence that shows asking children direct questions increases substantially the amount of detail or information they are able to give…the asking of such questions does not lead to significantly more inaccurate answers". However, in a 1992 television interview (Holmes, TVNZ), Zelas said that parents who question their children about sexual abuse "might introduce ideas to the child by the way in which they ask questions…and then...it may be impossible to know whether or not their child actually has been abused". In August 1992, she wrote to the police saying that two of the complainants had undergone "highly leading questioning" from their parents. Her letter was not disclosed to Ellis's defence, and Zelas did not mention any concerns about the two children's credibility at trial.

Karen Zelas also testified that children had to experience sexual activity before they could describe it. "They have to either be told about it in explicit detail, observe it or have it done to them". She qualified that by saying that information provided to children to keep them safe was not sufficiently explicit to "give the children the depth of knowledge that would enable them to describe in detail…acts of sexual activity in a plausible manner".

Psychiatrist and defence expert, Keith Le Page, said that none of the behaviours described by Zelas were specific to sexual abuse. Le Page said that the child's family history had to be examined to determine other stressors in the child's life. Changing schools, for example, could be stressful. He said: "The only way to be certain is to get inside the child's mind at the moment when these things were happening because there was no evident stress from any child in relation to any of these things until they were questioned [by their parents]". Le Page said that in his experience, children and adults who had been abused usually expressed distress when recounting their experiences of abuse. "It's not until they really come to terms with what has happened to them that their emotions will stabilise". The complainants showed little or no distress when describing acts of abuse during their interviews and when later testifying in court.

Le Page also testified that children couldn't remember events experienced at a very young age when there was a long delay between the event and the attempt to recall it. Children couldn't remember events, even traumatic events, that had occurred at two or three years of age when there was a long delay, he claimed. The alleged abuse at the creche had occurred when children were at these ages.

In June 1993 Ellis was convicted of 16 counts of sexual offences involving seven children. The following year he was acquitted of three charges involving the oldest complainant, who had retracted her allegations.

Aftermath

A number of irregularities in the trial were publicised in a TV3 20/20 television programme which aired on 16 November 1997. The programme alleged that the jury foreman had been the celebrant at the Crown Prosecutor's wedding 15 years earlier, and another juror had had a sexual relationship with a close work colleague of a complainant's mother. The investigating detective, Colin Eade, had had sexual relationships with two of the mothers after the trial and had propositioned another during the course of the investigation. He also had had a sexual relationship with one of the evidential interviewers after the trial. The mother whom he propositioned subsequently withdrew her child, the first to make a formal disclosure of abuse, from the inquiry. In 1994 Eade left the police suffering from post traumatic stress disorder.^[17] Colin Eade said in the television documentary that he would not be surprised if all the complainants had not recanted at some stage of the investigation.

The Accident Compensation Corporation, ACC, reportedly paid more than $500,000 to about 40 parents of Civic Creche children. Generally parents received a standard $10,000, "but in cases where Ellis faced multiple charges relating to a single child, some parents claimed for each alleged incident of abuse" (McLoughlin, 1996). One child's parents allegedly claimed five payments, another claimed four. A conviction was not necessary before money was paid out. An absence of charges did not prevent parents from receiving a payout. Colin Eade and therapists working with the complainants wrote letters to ACC supporting claims for compensation, many of these applications involved children who were not part of subsequent court proceedings.

Appeals

The case entered the Court of Appeal in February 1994^[18] with Nigel Hampton, QC, and, when Hampton later fell ill, Graham Panckhurst, QC, acting as counsel for Ellis, both were assisted by Rob Harrison. Brent Stanaway and Chris Lange appeared for the Crown. The hearing was interrupted on 28 July when the oldest child on whose testimony Ellis was convicted told her parents that her story was not true, that she had said only what she thought her parents and the interviewer wanted to hear. The Court of Appeal considered that it was not uncommon for child complainants to withdraw their allegations. The appellate judges believed the retraction may have been a case of denial on the part of the child and was grounds to overturn only those convictions relating to that child.^[9] The child has continued to maintain that she fabricated her allegations.

In November 1998, Ellis presented a second petition to the Governor General seeking a Royal Commission on Inquiry into his case, and either a free pardon or for the whole case to be referred back to the Court of Appeal. The Secretary for Justice sought advice from Sir Thomas Thorp on the second petition. His advice concluded that the terms of reference should be expanded.

In 1999 the Ellis case was referred to the Court of Appeal for a second time.^[5] Judith Ablett Kerr, QC, appeared as counsel for Ellis, and Simon France for the Crown. As was the case in the original trial and in the case of the first appeal, the court restricted the ambit of material it would examine. Reliability of the complainants' accounts, contamination by parents and other sources, along with non-disclosure by police of photographs to defence counsel, formed the basis of Ablett Kerr's submission. Ablett Kerr argued that the jury had not been allowed to examine these issues in their entirety. The Crown argued that risks involved with multi allegation, multi victim cases were well understood at the time of the trial and the jury had been given a clear picture of the case.

Dr Barry Parsonson, former head of the New Zealand Psychologists Board, said in relation to the children's evidence that led to Ellis's conviction, "the probability of the proportion of fact outweighing the proportion of fiction must be very, very small indeed". He wrote a 120-page-report into the children's interviews for Ellis's second Court of Appeal hearing. Michael Lamb, Ray Bull and Maggie Bruck are among international experts who have provided affidavits supporting Ellis's appeals to have his conviction overturned. At the second appeal the Crown presented the expert opinion of Dr Constance Dalenberg.

The court concluded that they were not persuaded that a miscarriage of justice had occurred but suggested a Royal Commission of Inquiry could better examine some of the issues raised. Ellis immediately presented a third petition to the Governor General.

In March 2000, Sir Thomas Eichelbaum was appointed to inquire into the Ellis case. He concluded that there was no doubt in regard to the reliability of the children's evidence. The Governor General declined a third application for a pardon.

In June 2003 a petition requesting a Royal Commission of Inquiry into the Chritchurch Civic Creche case was presented to Parliament. The request was rejected in 2005 by then Justice Minister Simon Power who advised that Ellis had not exhausted all other forms of appeal.^[19]

In 2011, Ellis announced his intention to lodge a fourth petition to the Governor General.

Thorp report

In 1999 retired High Court judge Sir Thomas Thorp examined a petition for the royal prerogative of mercy lodged by Ellis's counsel, Judith Ablett Kerr. Thorp expressed misgivings with several aspects of the case and recommended a wide-ranging inquiry. His concerns included: the lack of corroboration of the children's claims, the sanitising of some of the charges, the testimony of Karen Zelas, and the fact that several experts with reputations in their field had expressed doubts about the accuracy of the children's claims.

He made several recommendations, among which included employing the services of Stephen J. Ceci. Ceci had commented on the case for a TVNZ Assignment television program. Ceci had been supplied with a limited number of transcripts but had not seen videotapes of the children's interviews. Thorp wrote "Professor Ceci's involvement to date appears to have been as a consultant to TV3 [sic]. His studies of the American "mass allegation creche cases suggest that his opinion could be of particular value. There seems no reason why the Ministry, or Crown Law if it preferred, could not seek his opinion."

He noted the comments of Dr Barry Parsonson, Professor Ceci and Justice Wood, who presided over the Royal Commission into the New South Wales Police Service. Thorp stated that the central issues had "nearly attained" an evidentiary basis. If the opinions of Parsonson, Ceci and Wood were found to have substantial support, "it would", he said, "be difficult to argue against the existence of a serious doubt about the safety of the Petitioner's convictions".

Ministerial inquiry

In March 2000, then Minister of Justice, Phil Goff, established a ministerial inquiry into the conduct of the interviews, headed by Sir Thomas Eichelbaum. This was undertaken in response to ongoing concerns over the reliability of the children's evidence. In a later submission, Ministry officials stated that the Ministerial Inquiry was "intended to address specific areas of concern that might not have been seen to have been fully resolved by the Court of Appeal". Released in March 2001, Eichelbaum's inquiry concluded that the interviews were of good quality overall, and that though excessive questioning by some parents could have led to some contamination, this would not have been sufficient to affect the convictions.^[20]

Eichelbaum made several comments about the case. He found that "the evidence emerged in a credible way". If a particular allegation was induced by a leading question, but jurors did not view the tape, it could not have caused Mr Ellis "any prejudice". The interviewers "were rarely coercive, and remained neutral throughout". The arguments raised by Ellis's counsel in relation to mass allegations "were recognised and traversed" at trial and during two Court of Appeal hearings. Whatever "shortcomings as occurred in the interviewing process did not lead to convictions". In relation to the legal process, "doubtful allegations and charges were weeded out. Some charges were dismissed at a preliminary stage, and others during the pre trial process. The jury was astute in identifying those where the supporting evidence or the method by which it emerged was open to valid criticism". The case put forward on Ellis's behalf failed "by a distinct margin; I have not found this anything like a borderline judgment".

The ministerial inquiry was itself controversial. Thomas Eichelbaum was instructed in his terms of reference to seek opinions "from at least two internationally recognised experts (if possible with experience in mass allegation child sexual abuse)". Val Sim, then chief legal counsel at the Justice Ministry, advised Sir Thomas on possible candidates. Many leading sex abuse researchers and experts were "discounted" by Sim, due to previous involvement with the case, short publication histories, an overly academic focus, or a controversial public profile. This included Stephen Ceci because he had already expressed a view on the case in the media. Gail Goodman's career had been controversial, but Goodman was Sim's first choice.^[21] Two experts were selected: Graham Davies, professor of psychology (UK), and Dr Louise Sas (Canada), a clinical psychologist and child advocate who had no prior experience in mass allegation creche cases. In a confidential Ministry of Justice memo, Eichelbaum stated that he didn't appoint Ceci or Goodman because of their "research direction" and "high profile".^[22] Eichelbaum was advised by Val Sim to ignore Thorp's report because it was not a public document.^[23]

Eichelbaum interpreted his terms of reference such that he did not interview anyone who had been directly involved with the case. He did not speak with any of the children. He did not speak with the children's parents, some of whom regularly visited the Civic Crèche . He did not speak with the children's evidential interviewers. He did not speak with any of the crèche workers. He did not speak with Ellis's mother. He did not speak with Peter Ellis. He did not speak with the oldest complainant, one of seven children upon whose evidence Ellis was convicted. Several months after the trial had ended, the child stated that she had not been sexually abused. Eichelbaum did not seek advice from academics within New Zealand universities when appointing experts for his inquiry.^[24] The only people with whom Eichelbaum discussed the matter of the selection of the experts were Justice Ministry officials and Thomas Lyon, a USA law professor. In 1999 Lyon criticised the direction and relevance of research undertaken by experts nominated by Ellis's counsel.^[25] Lyon's critique was cited approvingly in the Crown's submission to the ministerial inquiry.

The Crown submission said: "The new wave researches [sic] assume that highly suggestive interviewing techniques are the norm in an abuse investigation when there is little empirical evidence to support this view". Stephen Ceci, one of the "new wave", has rejected this claim. Also, it is difficult to see the relevance of the above quote in the context of the Civic Creche case, which is atypical of sex abuse investigations. Lyon agrees that "if one knows whether a particular child was interviewed with suggestive techniques, then one need not ask what most interviews are like". Two of the "new wave", Ceci and Maggie Bruck, wrote an amicus brief on suggestibility in support of Kelly Michaels. It was signed by 43 of the 46 researchers who were asked to do so, among them some of the "most well-respected researchers in psychology" (Lyon). Michaels' convictions were subsequently overturned. Ceci and Friedman write that "what Lyon characterizes as a 'new wave' of research is actually a broad and long-standing scientific mainstream".^[26]

Eichelbaum claimed that "the experts and I independently reached the view that the children's evidence in the conviction cases was reliable". Eichelbaum did not say how he determined the children's evidence to be reliable. Professor Graham Davies, one of his appointees, did not assert that the children's evidence was reliable. He wrote he would not "pronounce on the reliability of individual children's accounts".^[27] The children's age and the historic nature of the alleged abuse meant that the children could not "be expected to provide the kind of detailed and spontaneous accounts which are so useful from the point of view of making judgements on reliability". Davies stated that he had doubts about the accuracy of allegations concerning abuse outside the crèche. Five guilty verdicts resulted from such allegations.

Louise Sas did not refer to the lack of corroboration of the children's claims. She said that "some parents may have wrongly attributed their child's symptoms to abuse without considering an alternative hypothesis". In her discussion of bizarre allegations in one complainant's evidential interview, she mentioned children being hung in cages as an example of an event "that really happened".^[28] The child had claimed that Peter Ellis's mother placed him and other children in cages which were hung from the ceiling. No cages were found and Peter Ellis's mother was not the subject of any charges.

Sas noted, as did Davies, that the interviewers had made errors during the interviewing of children. She concluded that these errors were of no consequence and that the children's evidence was reliable.

Sir Thomas Eichelbaum was unconcerned about the lack of corroboration of the children's claims. Graham Davies, however, wanted the issue of corroboration to be investigated as part of "the wider inquiry". Davies erroneously believed that his report was part of a wide-ranging inquiry. Eichelbaum's terms of reference meant that he did not need to traverse the issues raised in Sir Thomas Thorp's report. Eichelbaum therefore did not try to determine whether the opinions of Parsonson, Ceci and Wood had substantial support.

Phil Goff, then Minister of Justice, claimed that the Ministerial Inquiry had cost $500,000. The amount budgeted for the inquiry was $500,000 to $800,000. The actual cost was $148,878.^[29]

Satanic ritual abuse allegations

In November 1993, Pamela Hudson visited Christchurch to present a seminar on satanic ritual abuse (SRA) at the invitation of Rosemary Smart. Hudson was a US-based social worker, hypnotherapist and researcher into the alleged practice of SRA. Hudson began to write extensively about ritual child abuse in the 1980s, and in early 1991 she published “Ritual Child Abuse: Discovery, Diagnosis and Treatment”, which catalogued 16 alleged activities and practices of ritual child abuse. Some children described many or all of these practices during the police investigation of the Civic^[30] and these included a variety of bizarre, improbable and sometimes impossible incidents such as murder, coprophagia, being forced to watch or participate in the torture and abuse of other children and animals, penetration with sharp knives or burning paper. These activities were claimed to have taken place in diverse locations, including in cemeteries, private homes and the Park Royal Hotel,^[31] but most allegedly occurred at the creche. Claims of satanic ritual abuse activity are now considered to be associated with moral panics.^[32]

A mother's story

In 1997, Joy Bander published a book about the case. Joy Bander says that after she had heard about allegations of abuse at the creche, she asked her son, Tom, who had attended the creche, if Peter Ellis had abused him. He said he had not and referred to Ellis as his "friend". Bander said she felt "relieved". She said that Tom "would have told us if anything had happened, by asking him directly I had satisfied myself completely". She said she continued to question him "about once a week". His answers didn’t cause "the slightest alarm in me, I felt more and more reassured". While Tom was being questioned by his seventeen-year-old brother, he made an ambiguous allegation of abuse. According to Bander, Tom told his brother that Ellis had "’smacked my bottom really, really hard. I couldn’t hear the smack but it really hurt’".

At his first evidential interview Tom stated that "he [Ellis] was alright when I did go there... and now he's not".^[33] Tom repeated his claim that he had been smacked by Ellis. It had allegedly occurred when Ellis took him to the toilet after he had soiled himself. Bander, who had attended the Knox Hall meeting, continued to question Tom after his first formal interview. Three months later, after an incident during which Tom allegedly swore at his mother, Bander and her boyfriend arranged with Tom "to sit down and talk about the creche. I believe you’ve got a lot to tell me, and now it's time to talk". During that discussion, Bander says Tom made more allegations of abuse. He later told her that he had killed a boy. "Tommy said he really was killed and lots of blood came out of him", said Bander. Tom also said he had been buried in coffins and tied up in cages. He spoke of various places outside the creche where he had allegedly been abused. After one of his evidential interviews, Bander says she was advised that Tom "was probably adding in a story to please the interviewer, and to please me". Bander did not accept that was the case. Bander said that she questioned Tom on a weekly basis until the completion of his fifth and final formal interview in August 1992. Police requested prosecution expert witness Karen Zelas review these later interviews to determine the credibility of the information disclosed in them and to advise upon matters which might be further investigated. On 28 August 1992, she wrote that Tom's parents had "subjected him to intensive interrogation pertaining to 'ritual' abuse...[which] could make it easy to dismiss [his] statements as having little probative value whether or not they might be accurate". She also said that Tom had been subject to "highly leading questioning" by his parents.^[34] The jury never saw this letter. Ellis was found guilty on three of the four charges pertaining to Tom.

In 1994, after the trial, Bander was instrumental in founding the End Ritual Abuse Society Incorporated.^[35] Its rules stated "The purpose of this society is to educate the public on ritual abuse and to provide written, audio and visual information on the subject matter." A condition of belonging was that an applicant must be "believing of the existence of ritual abuse". Any member who "discredits those who accept the existence of ritual abuse" was liable for expulsion.^[36]

Latest reports

The Ellis case is highly controversial, with many New Zealanders believing he is innocent. A poll of 750 adults conducted in 2002 by the National Business Review revealed that 51% thought Ellis was innocent, 25% thought he was guilty, and 24% were unsure.^[37]

The case has been linked with the day care sexual abuse hysteria, a moral panic that originated out of California in 1982 and that existed throughout the 1980s. It has also been cited as a major cause in the decline in the number of male teachers in New Zealand schools. ^[3]

Research by London et al. (2005) has found that, contrary to the testimony of Dr Karen Zelas, sexually abused children typically disclose abuse when asked. They seldom deny or recant abuse allegations. The authors noted that the highest recantation rates were found in studies of allegedly abused children in a day-care setting. “Because of concerns about the actual abuse status of the children in these studies, one might argue that these recantation rates reflect the number of children who attempt to discredit their own previous false allegations by setting the record straight”.

The continued campaign on behalf of Ellis has angered at least two of the complainants and their parents. "I would have been happy to never talk about the abuse ever again.... I'm sick of being called a liar. And if I don't say anything, Peter Ellis will keep going around saying he's innocent and more people will believe him," stated 'Tom' in a 2003 newspaper interview.^[38] Tom, the son of Joy Bander, said he stood by the allegations, including being hung in a cage, that he had made as a young child. He said parents had nothing to do with what the children had said and that all his parents had ever said to him was that he should tell the truth. He continued to claim that female staff at the creche had abused him.

Ellis has received widespread support. In 2001 Lynley Hood published a book about the case and the moral panic of sexual abuse within New Zealand at that time. In 2002 A City Possessed won the top prize for non-fiction and for readers' choice in the New Zealand Book Awards. In June 2003, two petitions called for a royal commission of inquiry into the case. The first, organised by then National Party leader Dr Don Brash and MP Katherine Rich, had 140 highly prominent signatories and these included retired high court judge Laurence Greig, nine QCs, two previous prime ministers of New Zealand David Lange and Mike Moore, former Auckland police chief Bryan Rowe, nine professors of law, historian Michael King, "Rachel", a complainant who later retracted her allegations that Ellis had abused her, and experts in scientific, legal and social fields. In 2006, Don Brash cited the case when supporting calls for an independent body investigating miscarriages of justice in New Zealand.^[39]

In 2003, "Rachel", then 18, publicly supported the call for a commission of inquiry into the case. She testified at depositions that Peter Ellis had abused her. She did not testify at his trial. She believes that her mother was phoned by social workers because her name had been mentioned by other children. When she was formally interviewed she said that Ellis had touched her. When asked where, she replied, "On my head". She said she enjoyed her time at the creche. "I remember loving being there. I remember playing lots of games. Peter was really nice. I got on really well with Peter...I could have imagined that if something was wrong, I would have sensed that". She said she felt pressured by investigators. "I had a feeling I was involved in something pretty serious. One of the women told me Peter had done all these really bad things, and I remember saying, 'But he's a really nice guy'". She said she would have remembered if she had been abused. "I knew he didn't do it". She believes he was convicted because he is homosexual and was the only male worker at the creche.^[40]

In August 2005, Parliament's justice and electoral select committee reported on the two petitions relating to the Ellis case. The committee had several concerns with the way the case was prosecuted. It recommended several changes, although it acknowledged that changes had already been made to the way that children were now interviewed. It also suggested that the testimony of expert prosecution witness Karen Zelas would not be permitted if it were proffered now. The committee noted that: "The operation of the legal system in respect of this case did not inspire adequate public confidence in the operation of the legal system. A justice system should lead to certainty. In this case it seemed to increase the sense of uncertainty". However, the committee rejected the petitioners' call for a commission of inquiry, concluding that it was not practical to hold such an inquiry.^[41]

In late 2007 and January 2008, three articles on the Ellis case were published in The New Zealand Law Journal. These included New Evidence in the Peter Ellis Case^[42] by researcher Ross Francis, which prompted Sir Thomas Thorp to comment that the articles "must add to concerns expressed previously that that case may have gone awry".^[43]

In December 2007 the New Zealand Innocence Project heard from University of Otago Professor Harlene Hayne of her research which compared the standard of interviews conducted in the Ellis case with those of the Kelly Michaels case. Empirical analysis allowed Hayne to conclude that there was a "strong risk that the evidence of children who told of sexual abuse by Ellis was contaminated by the way the interviews were carried out" and that, contrary to Eichelbaum's conclusions, "the standard of the questions in Ellis was not substantially better than those in Michaels". Francis's articles and Hayne's research were cited in January 2008 by Ellis's counsel when making a renewed request that the Ministry of Justice establish a Royal Commission of Inquiry into the case,^[44] but Associate Justice Minister Rick Barker rejected this approach in March 2008.^[45] A further call for a Commission of Inquiry was made by former National MPs Katherine Rich and Don Brash and author Lynley Hood in November 2008,^[46][47] and the new Minister of Justice Simon Power said that the government would reconsider the issue.^[48] He later declined their request for an inquiry, on the grounds that Ellis still held the right of appeal to the Privy Council and an inquiry therefore could not achieve finality.^[49]

In November 2014 Ellis ended his long standing association with Judith Ablett Kerr, the barrister who had led his second appeal in 1999. Ellis then appointed Nigel Hampton QC and Kerry Cook to pursue legal avenues of appeal. Hampton had previously prepared Ellis's first appeal against conviction in 1994.

On 17 December 2014 Don Brash and author Lynley Hood again called for a review the case by way of an independent inquiry led by an authority from outside New Zealand. The appeal was made to Amy Adams, the newly appointed Minister of Justice for the National Party led Government returned in the 2014 General Election.^[50]

See also

• Day care sex abuse hysteria

Notes

References

• Bander, Joy, A Mother's Story:The Civic Creche Child Sex Trial, Howling at the Moon Productions, 1997. ISBN 0-9583717-0-9
• Eichelbaum, Thomas (2001). Sir Thomas Eichelbaum's Report into the Peter Ellis Case. Ministry of Justice. Retrieved 2006-04-24. 
• Francis, Ross. New Evidence in the Peter Ellis Case, New Zealand Law Journal, (November, December 2007). See http://www.peterellis.org.nz/2007/2007_francis_new_evidence.pdf
• Hood, Lynley (October 2001). A City Possessed: The Christchurch Civic Creche Case. Dunedin: Longacre Press. ISBN 1-877135-62-3. 
• Justice and Electoral Committee Report (pdf)
• Lanning, K. (1991). "Ritual abuse: A law enforcement view or perspective". Child Abuse and Neglect 15 (3): 171–173. doi:10.1016/0145-2134(91)90061-H. PMID 2043968. 
• London, Kamala; Maggie Bruck; Stephen J. Ceci; Daniel W. Shuman (2005). "Disclosure of Child Sexual Abuse: What Does the Research Tell Us About the Ways That Children Tell?" (PDF). Psychology, Public Policy and the Law 11 (1): 194–226. doi:10.1037/1076-8971.11.1.194. Retrieved 2006-04-26. 
• McLoughlin, David. Second Thoughts on the Christchurch Civic Crèche case:Has justice failed Peter Ellis?, North and South, August 1996, Pages 54–69
• Smart, R. (1992). A review of the management policy and practices of the Civic Childcare Centre. See http://www.peterellis.org.nz/docs/1992/1992-0700_RosemarySmart_Review.pdf
• Thorp Report
• Transcripts of evidential interviews of (selected) complainant children, R v Ellis 1993 http://www.peterellis.org.nz/Interviews/index.htm

External links

• Peter Ellis page on Crime.co.nz
• PeterEllis.org.nz – advocacy site