Wide-ranging inquiry into Ellis case hard to resist

Researcher Ross Francis discloses new and important information from his research into the Peter Ellis case. Last week www.peterellis.org.nz spokesman Richard Christie revealed details of some of this new evidence, which appears in this month’s edition of the New Zealand Law Journal. [1]

In March 2000, Cabinet met to decide what, if any, inquiry should be held into the case. In December 1999, the Justice Ministry expressed surprise and disappointment with the Court of Appeal’s position in respect of the arguments advanced on behalf of Ellis. Officials referred to the court’s position as “very narrow and conservative”. When opting for a ministerial inquiry rather than a wider inquiry, Cabinet was possibly unaware that officials had taken the unusual step of questioning the appellate court’s approach.

Then-Justice Minister the Hon Phil Goff appointed Sir Thomas Eichelbaum as inquiry head. The retired Chief Justice, who has enjoyed a long and distinguished career, had been a colleague and friend of the late Neil Williamson, who presided at Ellis’ trial. In 1997, Eichelbaum said that he had had the “greatest admiration” for Williamson whom he described as a “model judge”. Eichelbaum also said that Williamson, who announced at the conclusion of Ellis’ trial that he agreed with the jury’s verdict, “conducted many of the most difficult trials of his time, and he did so impeccably”. It is not known if this potential conflict of interest was brought to Phil Goff’s attention.

Eichelbaum’s approach to his inquiry does not appear to have been in the interests of justice. For example:

• When supplied with the names of two reputable experts – James Wood and Amye Warren – he asked a Justice Ministry official where both stood “in the debate”. Why he needed to know where they stood in the debate is unclear. Neither expert was appointed.

• He traversed much, if not all, of the evidence given him before choosing his expert advisors. This enabled him to form an opinion as to the veracity of the evidence, and Ellis’ likely guilt, before settling on his choice of experts. After speaking with officials and a US law professor, he selected Louise Sas, an expert who has described convictions as “positive court outcomes” and who, according to a prominent defence lawyer, “can interpret every fact and every behaviour as evidence of abuse”.

• He said the Ellis case had had the “most thorough examination possible”. That was false. No inquiry has ever examined all of the relevant evidence. The Court of Appeal (1999) stressed that there were various issues that it could not consider which were worthy of a Commission of Inquiry.

• He knew that Cabinet had been advised that the expert advisors’opinions were expected to be reviewed by relevant experts. For undisclosed reasons, he did not subject the expert advisors’ opinions to peer-review.

• He explained to officials that he had decided not to appoint Professor Stephen Ceci, arguably the world’s leading expert on child suggestibility, as an expert advisor to his inquiry due to Ceci’s “high profile” and “research direction”. In his report, Eichebaum contradicted this explanation by saying that he discounted experts nominated by Ellis’ legal counsel because of their prior involvement with the case. Although he didn’t name the experts, one of these was Ceci.

• He seemed to frequently and uncritically accept the advice of two Ministry officials. Their prior statements on the case suggested they believed Ellis’ convictions were safe. In 1999, both officials advised Phil Goff to decline Ellis’ application for a pardon. At the same time, they recommended that a Commission of Inquiry not be held into the case.

• Eichelbaum believed that Amye Warren, a leading expert on children’s testimony, was “possibly less well-known” than Louise Sas, despite the latter’s inferior credentials. Debra Poole, a leading US developmental psychologist and child abuse expert, says she has not heard of Louise Sas.

• He did not test Michael Lamb’s and Barry Parsonson’s expert opinions, which the appeals court had said were beyond its scope. In the absence of these opinions, which raise doubts about the safety of Ellis’ convictions, it is unlikely that Cabinet would have agreed to establish Eichelbaum's inquiry.

Eichelbaum’s approach was as conservative, if not more so, as that of the appeals court. When, in March 2000, then-Secretary for Justice Colin Keating provided Phil Goff with advice on inquiry options, Goff learnt that an inquiry conducted by officials might not be seen to have the “independence necessary for a subject of this importance…an inquiry must comply with the requirements of natural justice”. While they had no qualms about telling Phil Goff how disappointed they were with the Court of Appeal’s position and how an inquiry’s independence was crucial, officials appear to have kept this advice from Eichelbaum. However, a jurist of Eichelbaum’s experience should have been awake to the possibility that officials might try to finesse his inquiry. Indeed, it is hard to believe that he was unaware of the Ministry’s position on the case. Many readers will be left wondering how an inquiry into a possible miscarriage of justice could be so fatally flawed.

Significant developments will soon be announced which will make calls for a Commission of Inquiry into the case hard to resist. Those developments aside, the ministerial inquiry has spawned questions to which Peter Ellis, his former colleagues and the wider public deserve answers. For instance:

• When, in March 2000, Cabinet met to decide what, if any, inquiry should be held, were Ministers aware that the Justice Ministry had criticised the position taken by the Court of Appeal?

• Why did the Justice Ministry’s then-chief legal counsel, Val Sim, express concern for the “personal reputations” of the interviewers, the complainants and their families, but not the Civic Creche workers or their families?

• Why haven’t Michael Lamb’s and Barry Parsonson’s expert opinions been tested?

• Why didn’t Sir Thomas Eichelbaum subject his expert advisors’ opinions to peer-review?

• How did officials come to the conclusion that “about six” experts were likely to be appointed, and was Eichelbaum advised to select more than two experts?

• Why did Eichelbaum need to know where the experts stood in the debate before he appointed them?

• Were the interests of justice served by permitting officials, seemingly convinced of Ellis’ guilt, to advise Eichelbaum on all aspects of his inquiry?

• When the Justice Ministry recommended that Eichelbaum head the ministerial inquiry, did officials advise Phil Goff that this would create a potential conflict of interest?

• Were the interests of justice served by permitting Eichelbaum to assess the evidence before choosing the experts?

• What was it about Stephen Ceci’s research direction and profile that so concerned Eichelbaum?

• How did Louise Sas’ name come to the attention of Eichelbaum, and what did officials tell him about her?

• Who led Eichelbaum to believe that Amye Warren was “possibly less well-known” than Louise Sas?

• When, in March 2001, Phil Goff announced that “two of the best people in the world” had studied the children’s evidence, was he aware that one of the experts he was referring to (Louise Sas) was a little-known child advocate from Canada?

• In the interests of justice, will the Minister of Justice subject Dr Sas’ report to peer-review?

• If a multi-million-dollar Commission of Inquiry were held into the Ellis case, how might the quality of justice differ from that meted out by the ministerial inquiry, which cost less than $150,000?

• Why are a number of important and sensitive documents pertaining to Eichelbaum’s inquiry missing from Ministry files?

[1] http://www.scoop.co.nz/stories/PO0712/S00092.htm

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