Wellington justice researcher Ross Francis supports the Law Commission’s proposals to change the way commissions of inquiries are held, believing they will stop a repeat of the mistakes made during former chief justice Sir Thomas Eichelbaum’s narrow 2001 inquiry into the child evidence from the Peter Ellis case.
Francis, who wrote two articles in the Law Journal late last year highly critical of the actions of Eichelbaum and others in the Ellis saga, particularly supports the commission’s proposal that inquiries should usually be open to the public. The Eichelbaum inquiry was not only closed to the public, but even Ellis was not allowed to appear before it. “This meant that the inquiry lacked transparency,” Francis says in a submission to the commission.
In a draft report published in November, the Law Commission described the 1908 Commissions of Inquiry Act as antiquated and in parts confusing. It proposed a new Public Inquiries Act that would allow inquiries to be cheaper, more flexible and more effective, with freedom from the procedural constraints and traditions it said have dogged inquiries till now. The commission called for submissions on its report to be made by January 31.
Daycare worker Peter Ellis was convicted in 1993 on 16 counts of abusing children at the Christchurch Civic Creche. Despite overwhelming evidence that the case against him was as seriously flawed as in many similar American cases and that no abuse even happened, Ellis served the full non-parole period of his 10-year sentence, being released in 2000.
In his submission, Ross Francis says Eichelbaum’s nomination and appointment to the Civic ministerial inquiry by former Justice Minister Phil Goff was a big mistake. There was a perception that Eichelbaum’s findings – that the children’s evidence was reliable and Ellis had not proved his innocence – “were unduly influenced” by Eichelbaum’s professional relationship with the Ellis trial judge, the late Justice Neil Williamson. The close involvement in the inquiry of two Justice Ministry officials, Val Sim and Michael Petherick, who had expressed strong views about the case, also “created a perceived or actual conflict of interest.”
(Ironically, Val Sim, who over the years has opposed granting a pardon to Ellis and advised successive ministers there was no evidence of a miscarriage of justice in the case, is now a member of the Law Commission, which is chaired by former law professor and prime minister Sir Geoffrey Palmer.)
Francis says he expects conflicts of interest such as those he alleges would become less likely under the proposed law, because the Internal Affairs Department, not Justice, would administer inquiries in future, and parliamentary lawyers would devise their terms of reference.
“Financial considerations should not be permitted to determine the breadth and depth of any inquiry. The ministerial inquiry into the Ellis case was cheap – less than a third of its half-million-dollar budget was expended – and its terms of reference narrow. Unsurprisingly, the concerns that caused its establishment remain unresolved.”
Noting that key documents from the Eichelbaum inquiry cannot be located, Francis says all relevant documents from an inquiry should be retained, stored and be made available on request unless good reason exists to withhold them. If requested documents cannot be found, the department responsible should be held accountable.
Inquiries into possible miscarriages of justice should have a specific power to recommend a pardon, which would be for the Cabinet, the attorney-general or prime minister to approve, he says.
“Commissions of inquiry are ‘not prevented’ from inquiring into guilt and innocence if that is covered by their terms of reference. Of relevance here is the fact that the Court of Appeal appears to be incapable of accommodating some cases. At Peter Ellis’s second appeal hearing, for example, the appellate court stated on no fewer than four occasions that it was unable to assess the weight that it should give to some of the evidence proffered by Ellis’ legal counsel. The court said there were matters that were worthy of consideration by a commission of inquiry.”
Francis supports the thrust of the Law Commission’s recommendations. “The implementation of these recommendations should prevent a recurrence of the problems that bedevilled the ministerial inquiry into the Peter Ellis case. That inquiry is a case study of how not to conduct a public inquiry.”
Update January 29: Peter Ellis’s lawyer, Judith Ablett-Kerr, QC, has asked Justice Minister Annette King to agree to a full royal commission of inquiry into the case.