The Christchurch Civic Creche Case

News Reports Index

2003  Aug 1-15

Sunday Star Times
August 10, 2003

Wake up Phil Goff and smell the injustice
by Lynley Hood

Author Lynley Hood, whose book A City Possessed reignited debate over the Christchurch Civic Creche saga and the safety of Peter Ellis' convictions, tells Phil Goff the 15 things he should know about the case.

1. During the investigation, police, Child, Youth and Family staff and others contaminated the evidence by distributing inflammatory literature and spreading alarming rumours.

2. Crown prosecutor Chris Lange's handling of the case made rumours of a ritual-abuse/child-porn ring operating out of the creche seem credible.

When children disclosed bizarre indecencies involving Peter Ellis' mother and others, Lange sought an adjournment to the start of the depositions hearing. In declining the application, Judge Green noted: "The matter of principal significance raised by the crown is that arising from these latest re-interviews there is a real possibility that further people might be charged. Indeed, Mr Lange put it at a high probability . . . "

At depositions, Lange stated that children allegedly abused by Ellis and his colleagues were kept in a tunnel beneath a trapdoor and made to stand naked inside a circle of adults where they were made to kick each other's genitals. Ellis was said to have raped a four-year-old, violated children using a finger or stick, and put a needle into a child's anus. Yet the crown later claimed that ritual abuse allegations played no part in the prosecution case.

3. In addition to indecencies involving creche staff, children mentioned many other offences by many other people. These ranged from misdemeanours such as driving without a licence and breaching the Zoological Gardens Regulations to offences such as misconduct in respect of human remains, kidnapping, poisoning, misusing a firearm, manufacturing pornography and murder. Despite the prosecution's insistence that the children's allegations were credible, no charges were laid in respect of these offences.

4. At depositions, almost all the videotaped interviews recorded with the 20 children involved at that stage were played in closed court. The more videotapes were played, the more openly sceptical the media and court staff became.

5. Between depositions and trial, crown solicitor Brent Stanaway reduced the numbers of charges, complainants and defendants, and reshaped the indictment in two significant ways. First, he reduced the 16 "circle incident" charges which had been laid equally against Ellis and three of his female colleagues, to two unequal charges: one against Ellis (as principal offender), the other jointly against the women (as parties to an offence by Ellis). This change enabled Justice Williamson to dismiss the charge of group sex against the women while leaving the charge against Ellis (based on the same allegations by the same child) intact.

Second, Stanaway eliminated or reduced the 10 sexual violation charges against Ellis in which penetration of a child's anus, vagina or penis was alleged.

Thus, a charge that Ellis sexually violated a child by inserting his penis into the child's anus, became a charge that Ellis indecently assaulted the child by placing his penis against the child's anus. This change allowed the crown to explain away discrepancies between the violent and bloody abuse the children said they had suffered, and the lack of evidence of penetration, by claiming that the children were confused.

6. By refusing to allow the jury to see all the interviews with the remaining 13 children, Justice Williamson did not give Peter Ellis a fair trial. Williamson allowed some excerpts from videotapes unwanted by the crown to be shown. He also allowed the defence to cross-examine children about bizarre events they could not remember describing in videotaped interviews they had not seen. These rulings did nothing to overcome the fundamental unfairness created by Williamson's refusal to allow the jury to see all the tapes.

7. In addition to giving evidence for the crown, Dr Karen Zelas advised the police, trained and supervised the CYF interviewers, counselled a witness and advised the judge on his questioning of child witnesses. Yet the Court of Appeal ruled that she had no conflict of interest.

8. In her evidence, Zelas claimed that the children's tearfulness, stomach aches, anxiety and tantrums were consistent with sexual abuse. Under cross-examination, she could not think of anything that was inconsistent with sexual abuse.

9. At the first appeal, the principal submission of Graham Panckhurst QC (for Ellis) was that the verdicts were unreasonable because the children's evidence was not credible. He presented a detailed analysis of the children's interviews, followed by a review of the contextual evidence, and argued that the two were incompatible. In response, Stanaway argued that Ellis was convicted only on allegations containing "reliable central detail". In his closing address, Panckhurst showed that the allegations on which Ellis was convicted contained no reliable central detail whatsoever.

Yet, in its judgement, the Court of Appeal failed to acknowledge the attack on the reliability of the central detail, and failed to examine the interviews to determine whether any reliable detail existed.

10. At the second appeal, the court refused to re-examine matters canvassed at the first appeal, no matter how unreasonably they had been dealt with on the previous occasion.

11. Sir Thomas Eichelbaum's inquiry focused almost exclusively on the children's videotaped evidence, and the guilt or innocence of Ellis.

Though these are central issues, the case is bigger than that. It is about investigative procedures that turn allegations into evidence without pausing for reality checks along the way, and about a justice system that cannot reliably distinguish the innocent from the guilty. It is about a society poisoned by a delusion that all men - even the most decent of men - are at heart sexual predators who cannot be trusted around children.

But, even within its terms of reference, the Eichelbaum inquiry was flawed. Eichelbaum took submissions from complainant families, from the commissioner for children and from Ellis. He did not take submissions from non-complainant families, from other creche staff, or from the family whose child retracted her allegations.

Eichelbaum claimed that two international experts supported his conclusion that Ellis was guilty. But only one of the experts - Professor Davies - was a recognised mainstream expert, and he expressed serious doubts about offences alleged to have taken place outside the creche. He also advised Eichelbaum to do reality checks to see whether, in terms of the layout of the creche and the way that it functioned, the creche-based offences could ever have happened. But Eichelbaum did not do reality checks.

12. In the Employment Court case taken by the 11 childcare workers who lost their jobs, careers and unblemished reputations when the creche closed, the city council withheld key evidence that supported the staff case.

The withholding of this evidence enabled the Court of Appeal to overturn the Employment Court finding in favour of the staff.

13. There is now a broad consensus that, in the creche case, the justice system failed, and has been unable to self-correct. A retired high court judge, 11 law professors, 11 Queen's Counsel, scores of lawyers and thousands of other New Zealanders have signed the petition calling for an inquiry.

14. Until the issues raised by the case are addressed in a manner acceptable to most New Zealanders, they won't go away.

15. The Minister of justice has the constitutional authority to establish a royal commission of inquiry. He doesn't need new evidence, or the permission of the judiciary. All he needs is moral courage and political will.