The Christchurch Civic Crèche Case
A City Possessed:
Well, did he do it . . . or not? And if he didn't, how come all those court appeals and inquiries haven't cleared him?
These are the questions people are most likely to ask of anyone who has ploughed through Lynley Hood's massive research tome about New Zealand's most notorious child sex abuse case, Peter Ellis and the Christchurch creche kids.
And the answers? While uncertainty still exists as to whether the pendulum of public belief has righted itself on the subject of paedophilia, a wise answer is also an equivocal and politically correct one: Hood proves there is reasonable doubt that Ellis was guilty beyond reasonable doubt.
In a strange way, that's not even the main point of the book's 672 painstakingly referenced pages. There are other, more salient ones:
· New Zealand (especially Christchurch) was gripped by moral panic in the latter part of last century.
· The judiciary is complacent.
· Amended laws governing how courts may treat the evidence of children and expert witnesses are flawed.
· Innocent families have been damaged for no justifiable reason.
· Politicians are self-serving.
· The judgment of some police is warped by homophobia and religious fundamentalism.
· Government and local government bureaucracies are self-serving.
· The rights of New Zealanders are occasionally threatened by feminist- lesbian ideology.
· Biased, superficial and pre-emptive media reporting is a factor in denying defendants a fair trial.
The Court of Appeal threatened to throw her in jail; she had to shut herself off from friends who wanted to know what her seven-year investigation had turned up; she was betrayed by lawyers acting for Ellis who used her in an attempt to get new evidence for their appeal; and publishers gave her the run-around and threatened to sue.
"But Sir Thomas Eichelbaum's inquiry was both narrow and flawed," she writes on the second-to-last page of her text. "His terms of reference (set by Justice Minister Phil Goff, who said recently he has no plans to read Hood's book and considers the case closed) failed to address many issues of public concern (such as the soundness of the decision to arrest the women (Ellis' fellow creche workers), the sanitising of the charges against Peter Ellis (the prosecution carefully weeded out a number of original charges that looked far-fetched), and the fairness of his trial).
"In his inquiry, Sir Thomas failed to carry out reality checks on the children's evidence (for example, whether it was actually possible for the offences to have been committed, given the open layout of the creche building).
"He failed to take seriously evidence showing that the children's statements had been obtained by pressure and manipulation (for example, none of the children disclosed abuse without a series of arduous interviews, some of which involved leading questions, dolls, suggestions by the interviewers, refusal to take no for an answer, refusal to agree to repeated requests from the child to stop; for some it took four such attempts before the child agreed anything happened).
"He failed to consider the role of the police (some of whom later professed strong religious and homophobic convictions, and belief in a pervading myth about a child porn ring that was investigated in Christchurch but never found; a policeman who led much of the initial inquiry later admitted having affairs with some complainant mothers and propositioning another).
"He failed to consider the likely effect on the jury of controversial evidence given by the Crown's expert witness (Dr Karen Zelas, who had established a strong credibility with judges, but whose credentials and involvement with the investigation of the allegations Hood questions).
"He failed to consider the effect of controversial laws relating to children's evidence on the investigation and prosecution of the case (changes to the law governing evidence had been successfully lobbied for and achieved by the sex abuse industry; in effect, the usual stringency regarding admissible evidence and the handling of witnesses was dispensed with in the interests of prosecuting sex abuse cases).
"He failed to mention (and apparently disregarded) the evidence of the child who retracted her allegations (this complainant was the eldest of the children and the prosecution's best witness in court, hence they led with her; she later said her evidence against Ellis was all lies and has never wavered from that stance).
"In his conclusions, he failed to acknowledge that one of his own experts had serious reservations about the children's evidence (Hood also discredits the second "expert" Sir Thomas relied on for advice)."
Hood traces the judicial process with meticulous detail and rigorous referencing, from the beginning of the case to the depositions hearing, the trial itself and subsequent Court of Appeal hearings and applications for a pardon for Ellis.
Could they all be wrong, these prosecuting lawyers and judges? She believes so, and concludes: ". . . the New Zealand justice system has trouble recognising and correcting its own mistakes. While the complacency and defensiveness of the people involved may be part of the problem, a close examination of the safety net reveals holes in its basic structure big enough to let most miscarriages of justice drop through unnoticed."
In analysing the Court of Appeal's approach to Ellis, she said the cause was largely lost before the hearings began because the court had ". . . long since abdicated its responsibility when it came to assessing the believability of children's evidence in sexual abuse cases."
Through some of its previous rulings, the court ". . . effectively gave its stamp of approval to the ideological coup d'etat that had wrenched control of the investigation and prosecution of child sexual abuse away from the relatively objective justice system, and placed it in the hands of the clearly partisan child protection movement.
"Consequently, when the high-profile Ellis case came along, the Court was faced with a stark choice: It could reconsider its own earlier decisions (and thereby bring the opprobrium of the child protection movement crashing about its ears); or it could ignore the controversy (and hope that it would go away)."
No prizes for guessing which way their Honours went.
Incidentally, Hood is fearless in laying blame for changes to the evidence rules that partially led to this state of affairs. She names none other than former Prime Minister and Justice Minister Sir Geoffrey Palmer as the politician who introduced the "reforming" legislation ". . . late at night, under urgency, on what was expected to be the last sitting day before Parliament broke for Christmas (1988)".
To demonstrate the effects these law changes had on the Ellis case, Hood takes us through parts of the evidence in the trial and links it to key parts of the pre-trial interviews done with the children. She also traces police efforts to find trapdoors, tunnels, cages, child pornography and ritual abuse paraphernalia (none of which was discovered). Anyone who recalls the media coverage of the trial in 1993 will have his or her memory jogged by some of the bizarre things that were being claimed (and apparently believed):
"According to Ms Dogwood (pseudonym for one of the complainant parents), Bart said he was hung in a cage and had to kill animals and a little boy called Andrew in the hall on the second floor. Andrew was in a coffin, and Bart stabbed him with a knife in front of adults and children. Bart also said that Peter took him into the roof, and they came down a rope through a trapdoor in the ceiling."
It was evidence of this kind that convicted Ellis, since nobody ever found anything concrete to prove that something untoward happened. There was no physical evidence of abuse, no photographs, no instruments, no adult eye witnesses (such as fellow creche workers or parents), few if any opportunities or suitable places for committing the alleged offences.
And on, and on. Nothing appears to have been left unsifted by Hood. She spends a large part of the book outlining the social phenomena that converged to create the Ellis witch hunt: A feminist movement that was running out of steam; adult rape statistics that weren't living up to the emotive claims of the feminist-lesbian lobby; a Christian fundamentalist minority whose Patricia Bartlett-led fears of Sodom and Gomorrah were now ridiculed; spectacular (but often later discredited) ritual abuse discoveries overseas; and an emerging child sex abuse counselling paradigm, which among other things saw ACC handing out up to $10,000 a time to people who didn't have to prove beyond reasonable legal doubt that they or theirs had suffered sexual abuse. While the Ellis case involved 18 complainant families, in the end 40 families claimed such pay-outs.
And there was Christchurch. A city possessed by rumours of ritual abuse and child porn operations that persisted despite thorough but unsuccessful police probes.
And then there was Peter Ellis. A blatantly gay man who worked in the wrong place to indulge his risque approach to life. The fact that most of the kids seemed to love him and his unorthodox approach to play and fun was, in the end, beside the point. As Hood implies, he was a scapegoat waiting for the chop.
Hood shows above all else in this prodigious work that rumour in any community is a dangerous precursor to the breakdown of justice and democracy. In a paradoxical twist near the end of her inquiry, she was caught in the mill herself when it was said a juror from the trial later confided in her that he was sexually attracted to one of the child complainants.
Hood went to considerable lengths to avoid commenting on this, even to the brink of going to jail when the Court of Appeal demanded audio tapes of her conversation with the juror. She finally agreed, but only if the tapes were heard by one judge. He reported later they showed no such thing.
Lest anyone think Hood's book is the last word on this unfortunate saga, remember Ellis's stance that he will fight forever to clear his name. And while the sex abuse counselling community seems quite mute, and complainant parents have said little, there are stirrings in the legal fraternity that something further should be done.
Many people reading Lynley Hood's findings will be inclined to agree.