Recently, Associate Justice Minister Rick Barker rejected a request by Judith Ablett Kerr, QC, for a royal commission of inquiry into the Christchurch Civic Creche case. Barker told her Peter Ellis could go to the Privy Council should he wish to take further steps to challenge his 1993 convictions for molesting children at the Civic.
Since I exclusively revealed Barker’s rebuff by way of an article on this blog, I have been able to look at the letter Ablett Kerr wrote in support of a royal commission. It makes some very good points which I want to put on the public record here.
To briefly recap, for readers who may be unfamiliar with the worst miscarriage of justice in New Zealand since Arthur Thomas was framed for the Crewe murders in 1970: Peter Ellis was convicted in 1993 of 16 charges of abusing pre-school children. Despite the questionable nature of the bizarre “evidence” in the case, the Court of Appeal twice disallowed his appeals and he served the full non-parole period of his 10-year sentence, being freed in 2000. In 2001, after conducting a cursory ministerial inquiry intended to uphold the convictions, former chief justice Sir Thomas Eichelbaum ruled that the evidential interviews of the Civic children were conducted according to best practice. An explosive scientific analysis of those interviews by Professor Harlene Hayne, head of psychology at Otago University, has since found that those interviews were worse than even those done in a similar American case now accepted as a miscarriage of justice.
In her letter to Justice Minister Annette King (which was delegated to Barker to handle), Judith Ablett Kerr says it is not possible to attach the usual weight to the jury verdict in the Ellis case given the type of evidence that was presented in court.
“The Ellis jury was deprived of relevant information that would have informed their decision and was presented with evidence which was likely to give them unjustified confidence in the reliability and credibility of both the [child complainants] and the prosecution experts.”
She says the jury members were never in a position to make any real assessment of the reliability and credibility of the children because:
· Crucial interview tapes that would have assisted any assessment of reliability were not played to them;
· The defence were restricted in their ability to both lead evidence and cross-examine in a way that would have assisted any assessment of reliability;
· Evidence outside the scope of [the Evidence Act] was given by the prosecution expert [Karen Zelas];
· The evidence given by the defence expert [Keith Le Page] was unfairly ridiculed;
· The prosecution expert failed to support her evidence by reference, in the standard way, to literature and statistical information and consequently the jury were deprived of hearing what relevant mainstream research into the reliability of the evidence of children said. This research, of course, supported the defence contention that the children’s evidence had been contaminated and could not be relied upon;
· The jury were denied the opportunity to compare the evidence in the case with the known dangers of contamination associated with the style of questioning by both parents and professionals;
· The jury never heard of the concerns that the prosecution expert had held pre-trial as to the contamination of a particular child;
· The jury was unaware that the lead complainant would later admit that she had lied about Ellis indecently touching her;
· The jury could not have understood how great was the inequality of arms between the prosecution and defence and the effect that such inequality had on the proceedings. The prosecution had been represented by a strong, well-funded team headed by arguably New Zealand’s most skilled Crown prosecutor [Brent Stanaway], whereas the defence had been declined the services of a [QC] and was led by counsel of but four years’ experience [Rob Harrison], who suffered the misfortune of having a parent die during the trial.
Said Ablett Kerr in her letter: “Given the failures of the trial, the inability of the New Zealand appellate system to address the issues that concern so many well-informed members of society and the eroding of confidence in the [Eichelbaum] inquiry, I suggest that the case for a royal commission is overwhelming.”
Of course, Rick Barker is advised by some of the very same Justice Ministry officials who have fought hard since 1993 to prevent the Civic verdicts being overturned. They wrote his letter of rejection to Ablett Kerr and he signed it.
This case has been a travesty of justice. The bullet points made by Ablett Kerr barely scratch the surface of the issues raised by them.
The Civic case was driven by two parents who had a fanatical, false but unwavering belief that Ellis and his women co-workers were part of a satanic abuse ring molesting the children. Defence attempts to present evidence of this to the jury were rebuffed by the judge. A letter by Karen Zelas the jury were not allowed to see demonstrated she had serious doubts about the mother-driven satanic abuse “evidence” of the son of one of those mothers. Despite this, Ellis was convicted of three of the four fantastic charges relating to that boy. The judge allowed the jury only to be played those parts of the evidential interview videotapes in which children made “allegations” of abuse. He would not let the defence play the many more tapes where the same children denied abuse happened (in many cases, children only made allegations of abuse after several exhausting interviews where they denied anything wrong took place).
Almost everyone in the legal system, from high court judges to senior lawyers and police officers, now believes the Civic case was a massive miscarriage of justice. Many of them signed the petition to Parliament presented by Don Brash and Katherine Rich several years ago. But still the Justice officials fight to prevent justice from being done.
Weeks prior to the start of Peter Ellis’ trial, Karen Zelas supplied prosecutor Brent Stanaway with a 19-page affidavit. She focused on the evidence of Tommy Bander (aka Bart Dogwood), the boy you refer to. In her affidavit, she wrote that Tommy had behavioural and emotional problems, which worsened after his first formal interview:
“It is not surprising that such symptoms would increase in intensity and/or new ones develop when a child was being placed under emotional pressure by the parents … [i]t is not surprising, given his parents’ persistent questioning, that his behavioural and emotional symptoms intensified … Tommy has various mental health problems which have worsened since the first evidential interview”.
Dr Zelas also noted that: “From the point of view of the Creche Inquiry, the investigation of Tommy’s circumstances were (sic) considered complete after his first interview … I accept that the account of incidents described by Tommy in his first interview could be consistent with ‘a cleaning up procedure’”. Although Tommy did not make any unambiguous allegations of sexual abuse during his first evidential interview, and although police guidelines stipulated that in most instances “only one detailed interview with the child will be necessary” and that the number of interviews should be kept to “an absolute minimum”, Tommy was interviewed on four more occasions. According to Dr Zelas, these interviews took place because of pressure from Tommy’s parents. It was “hard to believe”, she advised Brent Stanaway (pre-trial), that his parents would have “accepted an opinion that Tommy had not been abused”.
What is significant about Dr Zelas’ comments is that the jury did not hear them. An expert witness has a duty to assist the Court impartially on relevant matters within the expert’s area of expertise and knowledge. It is apparent that Dr Zelas behaved unethically in refraining from disclosing to the jury relevant information about Tommy (and at least one other complainant). She appears also to have perjured herself. During Ellis’ trial, she was cross-examined as to whether she formed a view that Tommy was possibly suffering from mental illness during his evidential interviews. “No, I did not”, she replied. That is clearly false. She had previously advised Mr Stanaway that “Tommy has various mental health problems which have worsened since the first evidential interview”. One can only speculate as to why Dr Zelas felt it necessary to lie. To improve the possibility of a conviction, perhaps?
What Ross has written is extremely relevant to the injustice perpetrated on Peter Ellis. Karen Zelas was an articulate and confident witness, with a lot of past experience in presenting evidence for the prosecution. Her qualifications suggested that she had a lot of personal experience in the field (although in fact much of what she said was more based on literature reviews than on personal experience). The jury could quite rightly place a lot of weight on her evidence. What they would not have expected was that she would have lied.
What Ross has not revealed however is that a complaint of perjury has been made against Karen Zelas based on the information he has presented above.
And that the police are doing their best to sweep the complaint under the carpet, following their long history of doing everything they can to thwart justice in the Ellis case.
I have received a copy of that complaint and the response.
The police response to the complainant is pathetic. Ian McArthur, the Manager of the Southern Legal Service Centre for the NZ Police in Christchurch advised the complainant that the complaint will not be considered for the following reasons:
1. Appropriate disclosure was made prior to and throughout the proceedings,
2. The defence were represented by senior and experienced counsel and called Dr Keith Le Page, a very experienced expert, to challenge the Crown evidence,
3. The evidence and opinions provided by Dr Zelas prior to trial were explored and tested throughout the trial and in the two Appeals that followed,
4. The presiding trial judge, Justice Williamson, who was previously a Crown Prosecutor, made no adverse comment about the evidence of Dr Zelas, nor were any adverse comments made about that evidence in the two Appeals,
5. Sir Thomas Eichelbaum, in his review, looked specifically at the evidential interviews and found that they were “safe”,
6. In the context of the criminal trial process, the well established practise of acting only on prompt complaints from the Trial Judge, Appellate Judges or Crown Solicitor complaints that allege perjury or unprofessional conduct would be completely avoided if your complaint were acted upon at this stage.
My comments on this are
A. In the case of perjury, the only “appropriate disclosure” would be if the defence had been told by the prosecution that Karen Zelas had lied.
B. The fact that the defence had a senior counsel, a very experienced counsel and expert in Dr Keith Le Page, is completely irrelevant to the charge of perjury. No matter how much an expert he may or may not have been, he is entitled to expect that the evidence by the prosecution is truthful. No amount of expertise is sufficient to expect any expert to be able to detect a witness who is lying.
C. All the exploration and testing of the evidence of Dr Zelas through the trial and in the subsequent appeals were based on the assumption that she had been telling the truth at the trial.
D. Why should the fact that no adverse comments about the evidence were made by Justice Williamson or in subsequent appeals be relevant to the allegation of perjury? Justice Williamson and later Appeal judges would be entitled to expect, just as Dr Le Page was entitled to expect, that the evidence was truthful.
E. What relevance is there in the fact that Justice Williamson was a Crown Prosecutor? If anything, this may actually imply that Williamson had a prosecutorial bias, and would have been LESS inclined to be concerned about any prosecution evidence.
F. The fact that Sir Thomas Eichelbaum looked specifically at the interviews and found them to be “safe” is irrelevant to an allegation of perjury about the evidence of a witness. This implies that witnesses’ lies are somehow considered “ok” if, in the later opinion of a judge, other aspects of the trial, or verdict, were deemed acceptable. That is a preposterous suggestion.
G. The fact that Sir Thomas Eichelbaum found the interviews to be safe, is, in any case, the subject of recent professional concern. Perhaps Ian McArthur and the police are unaware of the groundbreaking research of Dr Harlene Hayne, presented at the Innocence Project Conference in December 2007, which unequivocally shows that the interviews were NOT safe.
H. A complaint of perjury can only be made when evidence of that perjury is discovered. The whole safety of verdicts in our justice system depend on witnesses providing truthful testimony. Overriding artificial requirements of “promptness” are reasonable expectations of perjury being detected. This is very difficult when discovery of documents that have uncovered such perjury are extremely difficult to obtain, especially in a child sex abuse trial, where there are understandable requirements of privacy
I. Justice should not be swept under the carpet simply because of time. Peter Ellis may have unfortunately had to live through a sentence of prison. But he is still living through a sentence of having a wrongful conviction.
J. It is time that the police came out of “justification” mode, justifying and trying to protect themselves from their previous shoddy involvement in this case.
K. The matters associated with this complaint would be better covered as part of a Royal Commission of Inquiry into all aspects of the Christchurch Civic Child Care Centre and the prosecutions of staff at the centre and the conviction of Peter Ellis. Referring back to the original article by Poneke, Judith Ablett Kerr is absolutely right in requesting such an inquiry.
Following on from what Brian wrote, Dr Zelas would be liable for a prison term of up to 14 years if convicted of perjury. Her conviction would leave the Crown case in tatters.
To the best of my knowledge, Police have not even questioned Dr Zelas as to why she (deliberately) misled jurors. I can only assume that Police are afraid that she might, if questioned, admit to having perjured herself. Police would then be obliged to charge her.
Karen Zelas found herself a nice niche in the child psychiatry industry and over the years elevated herself into the position of child psychiatry’s High Priestess. She could walk on water and do no wrong it seemed. Whatever she uttered had sway with government departments, do-good/feel-good outfits, judges and juries..
England, Scotland, Ireland and Canada have her equivalents and in recent years, in those countries, many Zelas types have been shown to be untruthful in many trials. Authorities have been quick to round those charlatans up and review the cases they were involved in, expose them and then charge them with perjury and other crimes.
It is about time that the NZ Government seriously studied what has happened in the UK, Ireland and Canada regarding child psychiatric charlatans of the Zelas ilk.