North Shore Times
March 27, 2001

Shouldn't juries have all the facts

Suburban Newspapers consulting editor Pat Booth says evidence omitted from the trial of Peter Ellis reminds him of another high profile case in which an innocent man was convicted and served time for murder.

You've just been empanelled on a virtual reality jury to consider a serious and significant matter.

Let's assume that the case involves a man charged with indecency against a young woman. She is an impressive witness, calm, detailed, led through her evidence by an experienced prosecutor who draws her clear picture of the incident.

You're convinced, as are other jurors, and your verdict on the basis of what you have heard is guilty. You're confident that justice has been done.

Take this virtual reality situation a stage or two further.

Imagine that sometime after the hearing, you discover that what you heard was only a part of the claims she made to the police at the time.

That, for instance, she also gave graphic detail of being hung from the ceiling of a building in a cage, that she was present when the man she accused ritually killed a baby, dug up a body which was Jesus Christ, that she and others were made to strip and dance naked, were placed in coffins and took part in mock marriages.

Assuming you rejected the more bizarre claims, at least as fantasy, how would you then feel about the heavily edited version of her testimony that you had heard ?

Would you wonder why you weren't told of all her claims and weren't allowed to hear her publicly questioned on them to re-assess her credibility?

How confident would you then be about the accuracy of the evidence you based your decision on? And about the verdict itself ?

These are the issues which cause worry over the Peter Ellis conviction, the continuing rejection of his appeals against his guilt on charges of having sexually abused children at the Christchurch Civic Creche.

Children, who were interviewed and whose answers to questions were the basis for the case against him, told of just those fantasy events while the everyday life of the creche went on around them - children slung in cages from the roof, having their private parts cut off, having sticks and needles inserted into their bottoms, being taken into the ceiling and on to the roof. as well as ritual killings and naked sex orgies, coffins and exhumations of Christ.

There was even suggestion of a tunnel from a leading Christchurch hotel said to have been used by tourists to reach the creche and abuse children.

But that "evidence" was never shared with the jury.

They heard only a sanitised version, stripped of obvious fantasies which would have raised such telling doubt about the edited evidence Peter Ellis has so consistently and strenuously denied.

Even that testimony changed after the Ellis conviction and his sentence to 10 years' jail.

One child later confessed she had lied in her evidence and three of 16 charges against him were quashed. Four women co-workers at the creche arrested during the investigation, were freed when indecency charges against them were withdrawn without hearing before Ellis went to trial.

The latest inquiry into the children's testimony as part of an investigation by former Chief Justice Sir Thomas Eichelbaum found no problem with the children's evidence or how it was obtained.

One overseas expert he called on, Professor Davies from Leicester University, said: "If it is accepted that at least some elements of a child's accusations are unbelievable, where does this leave the more credible elements? In terms of the law, such bizarre material is bound to decrease the credibility in the eyes of a jury ... such bizarre material can crop up alongside telling and accurate testimony ... / is not proof that the whole of the child's testimony is tainted."

That's assuming the jury knew of the existence of the bizarre claims and could form their own conclusions. In the Ellis case, they didn't - and should have been told.

The Eichelbaum brief obviously didn't go far enough. He should also have been asked to investigate why those heavy and significant edits were made, why the jury wasn't told about the children's obvious incredible fantasies and allowed to come to its own conclusions.

Nor am I impressed by the solemn spelling out of the times this case has been examined - the trial, two Court of Appeal hearings and two judicial reports, including one from a retired judge who, interestingly, expressed concern over the earlier findings.

Without raking over old coals, remember that two juries and 11 judges at various hearings were convinced of the guilt of Arthur Thomas by what was later ruled as wrong and faked evidence before he was pardoned and held to be innocent of the Crewe murders.

In the process, that later disproven testimony also apparently convinced six senior counsel who argued strongly for his guilt at hearings including the Commission of Inquiry. All of them later went on to become judges themselves.

The issues in the Peter Ellis case mirror those years of concern over the Thomas convictions: a jury's need to hear all the significant evidence available, the right of an accused to a fair trial - and a proven fact that suspect evidence doesn't become infallible simply because it's repeated often enough.

As much as the justice system would like that to be the case.