At the heart of this issue is one woman: Karen Zelas, who both oversaw the children’s evidential interviews and acted as the Crown’s key expert witness in Ellis’ 1993 trial. The Supreme Court found her evidence lacked balance, went outside the scope permitted in several respects, and that she did not inform the jury of other possible causes of the children’s behaviours. “The overall effect of Dr Zelas’ evidence was to incorrectly suggest to the jury that ‘clusters’ of behaviours supported a finding of sexual abuse,” stated the finding. It concluded the admission of evidence was found to be an error of law and also “may well have affected the verdicts and thereby caused a miscarriage of justice”.Harrison says he felt uncomfortable with Zelas as the expert, but at the time she was regarded as the leading expert in New Zealand. “She was the Crown’s go-to person in these sorts of cases, so there are a large number of cases in which she gave evidence. In the early 2000s the Court of Appeal started looking at some of the evidence she had given and saying it had gone too far…and became critical of what they were seeing in terms of her evidence,” says Harrison. The result is that the consequences of Zelas’ evidence as a Crown expert witness could reach much further than the Ellis case, potentially affecting other convictions."
SUB-HEADING: "Thirty years of hell, a substantial miscarriage of justice finding in the Supreme Court – and yet still no apology. The fallout from the Christchurch Civic Creche case continues to reverberate."
GIST: "It was a ground breaking decision, but a year on from the Supreme Court’s miscarriage of justice ruling in the Peter Ellis case and his family are yet to receive an apology from the government, let alone consideration of compensation.
Ellis, a childcare worker at the Christchurch Civic Creche, spent seven years in prison after being convicted in 1993 on 16 counts of indecencies against seven creche children. The case is the subject of our award-winning podcast, Peter Ellis, the Creche Case & Me.
He died of cancer in 2019, however in a legal first the Supreme Court ruled his appeal be allowed to continue.
After three decades of fighting at every level of the legal system, in October 2022 the country’s highest court quashed Ellis’ convictions.
His case was unprecedented – it was the first time a conviction has been appealed and won by a dead person in this country, and it was based the introduction of the holistic concept of Tikanga Māori, which posits that a person’s mana – their reputation or legacy – is as important in death as it is in life.
Now, more than a year since that landmark finding and Mark Ellis, Peter’s brother, tells Newsroom his family hasn’t heard from the Crown at all.
“I find it insulting there has been no apology. It’s been over a year now. If tikanga is going to be used, in my opinion, it needs to be followed all the way through to uphold his mana. It almost feels as if tikanga has been used as a mechanism to get what the Crown wanted – that is, clean the mess up rather than truly uphold his mana.”
Mark says while the case doesn’t run his life, it still affects him and his family.
“We think about it quite a lot and it is impossible not to feel aggrieved, especially when our justice system just puts their heads in the sand and attempts to bury it.”
The Ellis family are not the only ones calling for officials to recognise the miscarriage of justice ruling. In October 1992, eight months before Peter Ellis was convicted, four of his female co-workers at the creche were also accused, arrested and charged with child sexual abuse before later being discharged.
Creche manager Gaye Davidson said originally she had thought a miscarriage of justice ruling for Ellis would finally free her and her colleagues from the stigma attached to the creche case, but when the time came it felt hollow, particularly with the absence of an apology or any talk of reparations from the government for what they and Ellis had to endure.
“It feels better now that his [Ellis’] name has been cleared with the quashing of his convictions. But it’s like we’ve been forgotten. I still feel like we’re in limbo. We’ve lost our careers and reputations. Our families went through hell with us, and so did our friends. And it’s like they’ve just swept us away, like we didn’t exist. Because we’ve never been mentioned, or the damage it did to us.”
Tania Ellis, Peter’s sister, says there will be no real closure until their family receives – at the very least – an apology from the government.
“Being on the steps at the Supreme Court was mammoth. It was groundbreaking. And for New Zealand law, it was huge. And, all due respect to the process that the Supreme Court went through, but there wasn’t even the sorry at the end of it.”
In debt for decades
In 1992 and 1993, the four women creche workers who were arrested faced 16 weeks of pre-trial hearing depositions, until finally the charges against them were dismissed.
They lost their careers, reputations and savings as a result, and all four were left with an enormous legal bill.
Not only did they have to pay back two thirds of the legal aid they had been granted, but between them they owed more than $40,000 to the law firm that represented them.
Years later they were still paying the debts off. One of the women, Jan Buckingham, died before she could finish paying it back, and creche supervisor Gaye Davidson had a caveat over her house for the remaining legal debt that she had to repay when the property sold. She had loved her work at the creche, and had to start all over again to build a new career.
Marie Keys, who had been the president of her local Plunket society, says it affected their whole lives, not just at the time, but for decades.
“Financially it was a struggle, but we just had get on with it. I did cleaning, you know, just anything to bring in money.”
Keys told Newsroom they had to use some of their Christchurch earthquake payout to cover the remaining debt – 20 years after they had first appeared in court.
The long-lasting impact of the creche case hasn’t just been financial, with Keys worrying for years about how her family might be treated if people recognised her.
“When it came time to have grandchildren, I was still very conscious of the fact that going into their Playcentre, people would know who I was.”
So what would true justice look like for those affected by three decades of pain?
How compensation works in NZ
To understand the intricacies of the compensation situation in New Zealand, Newsroom spoke to Nick Chisnall KC, the barrister who last year took Alan Hall’s case to the Supreme Court where his convictions for the 1985 murder of Arthur Easton were overturned and a miscarriage of justice declared.
Chisnall subsequently helped secure Hall a record compensation payment of $5m.
He explains New Zealand’s compensation system is different to similar countries – essentially the government of the day decides whether it makes a payment and how much.
“That puts us a little out of step with equivalent jurisdictions. In other countries, the right to compensation for wrongful conviction is enshrined, so it’s a matter of statute. Rather than having Cabinet making the decision, the decision is vested in a judicial body. So, a tribunal or a committee that’s formed to determine it.”
In New Zealand, the first step towards compensation is to have a miscarriage of justice declared, and then usually (but not always) a retrial is ordered. If found not guilty, the person then needs to apply to the government for a specific inquiry into the case, which must find the person innocent “on the balance of probabilities”.
“The finding or verdict that someone’s not guilty is not the equivalent to a finding of innocence. We don’t have a model such as that in Scotland where the jury can say effectively what it’s found. What we have here is a finding of not guilty, which is just simply that the Crown hasn’t proved the charge beyond reasonable doubt. So that’s why compensation guidelines require there to be a specific inquiry relating to innocence,” says Chisnall.
In order to be eligible to make an application for compensation, the wrongfully convicted person needs to meet the following criteria of the Cabinet guidelines: They must be alive, have served all or part of a prison sentence, and have received a pardon or have had their convictions quashed without an order for retrial.
On top of that, there are three further tests: Cabinet must be satisfied the person is innocent “on the balance of probabilities”, have suffered losses of a type that can be compensated under the guidelines, and that compensation is in the interests of justice.
Due to his death in 2019, Ellis is not eligible under the current guidelines. However, there is precedence for a government payout where not all of the guidelines were met: David Bain.
The man who spent 13 years in jail for the 1994 murder of his parents and three siblings had his convictions overturned by the Privy Council in 2007 before being acquitted at retrial two years later.
But his bid for compensation was rejected in 2016 by then justice minister Amy Adams. A report in 2012 by a former Canadian Supreme Court justice had concluded Bain was innocent “on the balance of probabilities” and recommended compensation, but the government then ordered a peer review of the report.
When Adams took on the justice portfolio she commissioned a second report, which was unable to establish Bain’s innocence.
Instead of compensation, Bain received an “ex gratia” payment – essentially a goodwill payment from the government – of $925,000.
In other words, compensation for those found to have been wrongfully convicted is up to the discretion of the government in power at the time, or, as one legal commentator described it, “a random act of kindness”.
Chisnall says the hurdles in a case where the applicant is dead are even higher than those of Bain.
“The stumbling block is that a person who is deceased isn’t eligible under the guidelines. And so a strict interpretation would say, well, you can’t even engage with us on this. We’re not even required to appoint somebody to assess innocence because you’re not eligible under the guidelines. And that would of course be a strict interpretive approach taken by the Ministry of Justice of an application filed on behalf of somebody who is deceased. The essential issue is: how do you convince the government of the day to engage if the guidelines don’t provide a pathway?”
Ellis’ lawyer calls for an inquiry
The answer to that question lies with Rob Harrison, the lawyer who represented Ellis at his original trial in 1993, and then took his landmark case to the Supreme Court.
“If we make an application for compensation, Peter would be doing yet another first. It would be his estate asking for the government to compensate what he had been through over those years.”
Harrison wants a full commission of inquiry into the case.
“If there was an inquiry into this, if a government was prepared to look at what happened, to see where there were failings, then I think they would be forced to confront those issues that I say were present – with perfect 20/20 hindsight – and say, ‘look, we’ve got this horribly wrong. We are sorry for what has happened to you.’”
The case is perhaps even more challenging for the four women who were charged and then discharged after months of gruelling depositions in 1992, which upended their lives forever and left them tens of thousands of dollars in legal debt. In New Zealand, the law doesn’t allow for those who haven’t spent time in prison or home detention to receive compensation, even if they have suffered as a result of being charged.
“I feel that if we can get a commission of inquiry to look at all that, then the issue of compensation becomes self-evident,” says Harrison.
There are reasons other than compensation for wanting an inquiry. Among them is to hold those most implicated in the Supreme Court ruling to account – because the failings highlighted in the court’s decision are important not just for this case, but potentially for others too.
At the heart of this issue is one woman: Karen Zelas, who both oversaw the children’s evidential interviews and acted as the Crown’s key expert witness in Ellis’ 1993 trial.
The Supreme Court found her evidence lacked balance, went outside the scope permitted in several respects, and that she did not inform the jury of other possible causes of the children’s behaviours.
“The overall effect of Dr Zelas’ evidence was to incorrectly suggest to the jury that ‘clusters’ of behaviours supported a finding of sexual abuse,” stated the finding.
It concluded the admission of evidence was found to be an error of law and also “may well have affected the verdicts and thereby caused a miscarriage of justice”.
Harrison says he felt uncomfortable with Zelas as the expert, but at the time she was regarded as the leading expert in New Zealand.
“She was the Crown’s go-to person in these sorts of cases, so there are a large number of cases in which she gave evidence. In the early 2000s the Court of Appeal started looking at some of the evidence she had given and saying it had gone too far…and became critical of what they were seeing in terms of her evidence,” says Harrison.
The result is that the consequences of Zelas’ evidence as a Crown expert witness could reach much further than the Ellis case, potentially affecting other convictions.
“New Zealand’s doing a Royal Commission of Inquiry into abuse and state care at the moment, where we are looking at the basic failures of our institutions in protecting the very young. And so I would imagine that, if there is an argument to be had that there has been evidence put before the courts that is scientifically shown now to be unsafe and has been seen to exceed the boundaries, that we need to look at that,” says Harrison.
‘Never been about the money’
The Ellis whānau told Newsroom they want to stress they have never been after a “golden handshake”, but want recognition for everything Peter and his family have been through, in particular trying to battle the Crown both in the 1993 trial and the appeals that followed.
“The reality is the Crown had a bottomless pit of money and, while Peter had truth on his side, he didn’t have any such resource to fight the Crown. On the whole, we feel it was an abuse of power by the Crown,” says Mark Ellis.
Tania Ellis told Newsroom it “has never been about the money”. In fact, she says Peter was very clear about where any compensation to his estate would go.
“He died a very not wealthy man, but there are some aspects in his will that would suggest if there was compensation, he’s got some agencies that were very close to his heart that he wanted to donate funds to.”
Unsurprisingly for those who knew Ellis, a devoted animal lover, those include the Cat’s Protection League, as well as the AIDS Foundation, St. John Ambulance and the Cancer Society.
“Money has never been a driving factor for Peter or our family – if there was any compensation, it should’ve been Peter’s money and we all know he would have given it all away anyway. But in saying this we do feel that maybe it is a means to push for an apology that Peter and his family so deserve,” says Mark Ellis.
Tania still lives in the area Peter lived after he was released from prison in 2000, a small settlement north of Christchurch.
She took Newsroom on a tour of the town and showed us the seat dedicated to her brother, not far from the caravan where he worked selling fish and chips, and finally to where his ashes and those of his dog Florence are buried with his mother, Lesley, who stood by him all those long years.
“Peter spent 30 years of his good life fighting this case to have it overturned by the Supreme Court. There can’t be any other outcome except an apology from the Crown and some form of financial payment for him. It’s the least he deserves,” says Tania.
The entire story can be read at:
https://newsroom.co.nz/2023/12/29/a-year-on-and-peter-ellis-family-still-waits/
| PUBLISHER'S NOTE: I am monitoring this case/issue/resource. Keep your eye on the Charles Smith Blog for reports on developments. The Toronto Star, my previous employer for more than twenty incredible years, has put considerable effort into exposing the harm caused by Dr. Charles Smith and his protectors - and into pushing for reform of Ontario's forensic pediatric pathology system. The Star has a "topic" section which focuses on recent stories related to Dr. Charles Smith. It can be found at: http://www.thestar.com/topic/charlessmith. Information on "The Charles Smith Blog Award"- and its nomination process - can be found at: http://smithforensic.blogspot.com/2011/05/charles-smith-blog-award-nominations.html Please send any comments or information on other cases and issues of interest to the readers of this blog to: hlevy15@gmail.com. Harold Levy: Publisher: The Charles Smith Blog; |
SEE BREAKDOWN OF SOME OF THE ON-GOING INTERNATIONAL CASES (OUTSIDE OF THE CONTINENTAL USA) THAT I AM FOLLOWING ON THIS BLOG, AT THE LINK BELOW: HL
https://www.blogger.com/blog/post/edit/120008354894645705/47049136857587929
FINAL WORD: (Applicable to all of our wrongful conviction cases): "Whenever there is a wrongful conviction, it exposes errors in our criminal legal system, and we hope that this case — and lessons from it — can prevent future injustices.
Lawyer Radha Natarajan;
Executive Director: New England Innocence Project;
—————————————————————————————————
FINAL, FINAL WORD: "Since its inception, the Innocence Project has pushed the criminal legal system to confront and correct the laws and policies that cause and contribute to wrongful convictions. They never shied away from the hard cases — the ones involving eyewitness identifications, confessions, and bite marks. Instead, in the course of presenting scientific evidence of innocence, they've exposed the unreliability of evidence that was, for centuries, deemed untouchable." So true!
Christina Swarns: Executive Director: The Innocence Project;
------------------------------------------------------------------
YET ANOTHER FINAL WORD:
David Hammond, one of Broadwater's attorneys who sought his exoneration, told the Syracuse Post-Standard, "Sprinkle some junk science onto a faulty identification, and it's the perfect recipe for a wrongful conviction.
