From start to finish
The long-distance agony of representing an innocent client
Peter Hugh McGregor Ellis went from being the most hated man in New Zealand to a cause celebre. Lawyer Rob Harrison was there at the beginning and the end. Martin van Beynen reports.
In 1993 Christchurch lawyer Rob Harrison had a client who he believed was entirely innocent. When a jury convicted him, Harrison was devastated.
An appeal to the Court of Appeal failed and Harrison got on with his life, representing many similar offenders thought of as the ‘‘lowest of the low’’.
In 2019 Harrison was practising from an office in Blenheim, assisted fulltime by his wife Rose, a former journalist and TV weather presenter, with their two children making their way in the world. But the client he was sure was innocent had never left his mind.
He then got the phone call which would change his life over the next three years. The call asked him to take the client’s appeal to the Supreme Court, New Zealand’s highest court.
The client was, of course, Peter Ellis, a flamboyant childcare worker at the Christchurch Civic Childcare Centre, who was charged in 1992 with abusing a raft of children entrusted to his care.
In October last year, the Supreme Court signed off the last chapter in the case by quashing the charges, saying Ellis had been the victim of a miscarriage of justice, something his supporters had been saying for 30 years.
Ellis was not there to enjoy the celebrations. He died on September 4, 2019, of bladder cancer, aged 61. He had been diagnosed earlier that year, hence his desire for one last bid at clearing his name.
Contrary to the myth, lawyers don’t dream of having innocent clients like Ellis, Harrison, 62, says. ‘‘An innocent client is the worst thing you can have. There’s so much pressure. That’s why you don’t ask the question about whether they did it or not. You need to be objective and give advice on the basis of the evidence.’’
He didn’t need to ask Ellis the question, he says. ‘‘Right from the beginning he was very clear about his innocence and he never wavered. Nothing I saw made me think he was lying.’’
If there were questions after the jury verdict, they were more about himself.
‘‘I did a lot of soul-searching about my work on this case. Had I done something that caused an innocent man to be convicted? I have read this case time and time again and discussed it with other lawyers. Maybe I could have done more in some places in hindsight, but I never saw any major error.’’
So when he took on the case again it wasn’t a bid for personal redemption. ‘‘I felt it was a chance to show this was wrong – it was a chance for the justice system to redeem itself. Most of NZ felt there was something wrong here.’’
THE START
Harrison, born in Ohakune and the youngest of six children, had been a lawyer for about five years when, late in 1991, the Ellis case came into his life. He was then a relatively inexperienced barrister doing mainly legal aid work.
He had intended to become a commercial lawyer but discovered when he worked at the Community Law Centre as a student that he was happier helping the ‘‘little people’’.
He found Ellis a likeable and engaging character.
Initially he had a watching brief as police worked quietly on the creche investigation, started after a child told his mother he had seen ‘‘Peter’s black penis’’. The allegation threw Ellis’ job into doubt, and he instructed an employment lawyer. Harrison was asked to keep an eye on the case should things take a criminal turn.
Ellis faced his first charges in March 1992 after specialist Social Welfare Department interviewers had completed a number of interviews with children, some of whom made allegations of abuse.
Representing Ellis did not make him the most popular man around, Harrison says. ‘‘It was clear given the culture and hysteria surrounding it that it wasn’t the best job in town, but it was perhaps the most important job.’’
Harrison and Ellis had to steel themselves for many tedious interviews with the burly head of the case, Detective Colin Eade. They would arrive at the police station where they would watch videos of interviews in which disclosures had led to charges against Ellis. Then Eade would question Ellis, laboriously writing down responses in longhand.
‘‘Sitting there the contrast between the straight-laced Eade, who was bursting out of his shirt, and Peter, with long fingernails and mascara, could not have been more stark. It was two different worlds colliding.’’
Ellis initially felt the whole thing was a misunderstanding that would soon be cleared up and he would be back at work.
LUNACY REIGNS
As 1992 wore on, they started to see ‘‘how horrendous this was’’, says Harrison. ‘‘The more they played the tapes, the more I started thinking, ‘this is crazy. This is nuts’.
‘‘Quite apart from Detective Eade, in the background there was this media explosion.’’
Hope came with the District Court depositions (a preliminary hearing of the evidence to ensure it presented a case to answer) which started in November 1992.
By then four women creche workers had been charged along with Ellis and all the interviews of 20 children to whom the 60 charges related were played in court over 11 weeks.
‘‘All of a sudden the bleakness lifted. We thought ‘the stupidity of what they are doing is now apparent’. Some people swung around and we all walked away feeling ‘this is good’.’’
After the unsurprising committal for trial, Harrison, who had been reporting to the experienced defence lawyer Nigel Hampton KC, thought Hampton should take over but was told if he stepped down, it would go to the next person on the list.
‘‘I felt after 11 weeks of the depositions and working on this case for two years, it was at my fingertips. I asked myself, ‘do we give it over or do we run it’?’’
Ellis’ six-week trial started in April 1993 with Justice Neil Williamson, a devout Catholic respected by everyone, presiding. The jury foreman was also religious and later needed counselling for his feelings of sexual arousal during the trial.
‘‘Peter’s instructions were ‘don’t hammer the children. No tricks’.’’ Ellis knew all of them, and their family backgrounds, and did not want to see them heavied, says Harrison, whose mother Catherine died during the trial.
The approach appeared to have paid dividends and when Harrison finished his closing address with something like, ‘‘let’s end this lunacy here’’ he was still hopeful.
‘‘I thought anyone who watched those interviews would ask how anyone could possibly rely on that evidence. When the guilty verdicts were read I wasn’t as devastated as Peter, but I was devastated. The feeling of injustice was overwhelming,’’ he says.
Justice Williamson jailed Ellis for 10 years, a surprisingly light sentence given the horrific offences of which he was convicted. Harrison believes the judge was having second thoughts by the time of the sentencing.
‘‘Otherwise, how do you explain the sentence?’’
Harrison’s direct involvement with the case ended after the first appeal against the verdicts in 1994 and 1995, although he assisted where he could with the various appeals, legal manoeuvres and government reviews that followed in the next 20 years.
In the first appeal in 1995, one of the child complainants, probably the star witness against Ellis, told her parents she had made up her stories about Peter. Her parents contacted the court and the convictions relating to her were quashed.
Harrison does not recall feeling it was the breakthrough they needed, but he felt it ‘‘was enough to get him a retrial’’.
However, that was not to be.
While the three convictions related to the child were quashed, the other 13 were upheld.
HARRISON RE-ENGAGED
In 2019 Ellis was diagnosed with cancer and given a rough estimate of how much time he had left. He wanted to have one last crack at overturning his convictions.
Harrison wasn’t particularly enthused when Ellis’ friend, former prison chaplain Steve Ferguson, rang him to do a quick job interview and see if he was interested.
‘‘No-one had been able to get a court to see there was something wrong here. I was always conscious there were two courts that looked at this and said there was nothing wrong. To come back to pick it up again when you had all these misses was a bit daunting.’’
But he signed on and had something of a head start. Otago University’s Innocence Project had spent years working with memory expert Professor Harlene Hayne on analysing the interviews. Law professor Mark Henaghan and Innocence Project co-ordinator Bridget Irvine, a lawyer and psychologist, had worked on grounds for appeal and drafted submissions.
Harrison remembers thinking this was the best shot Ellis would ever have.
Ellis’ condition worsened and Harrison needed to ensure he could show the court Ellis wanted his appeal to continue. Hours before he died, Harrison drafted an affidavit and got Ferguson to read it to Ellis at his hospice. Concerned Ellis wasn’t hearing him, Ferguson shouted his way through the affidavit.
It got too much for Ellis. He said: ‘‘Steve, I might be dying, but I’m not deaf.’’
TIKANGA
After Ellis died, attention turned to whether the appeal could proceed. During argument on the issue in the Supreme Court, the court suggested the parties go away and look at whether the Māori concept of mana (continuing reputation of the individual and his family) could inform common law principles on the subject.
Harrison immediately got Māori lawyers Natalie Coates and Kingi Snelgar on board and a hui was held to crystallise the relevant Māori law principles.
He admits the tikanga aspect was a complete surprise and that it ended up being the case’s ‘‘saving grace’’. Without the tikanga argument the case might have ended with Ellis’ death. Two of the five Supreme Court judges ruled it should. The tikanga argument, that the appeal needed to continue for finality for all parties, was important in the balance of the court opting for continuation.
‘‘I got a Rolls-Royce ride through the tikanga aspects of the case thanks to Natalie and Kingi. It was a fantastic education to look through the lens of tikanga and see how the common law could develop and be enhanced by the addition of tikanga.
‘‘Māori law is the first law of New Zealand. Mana is not a foreign concept for us.
‘‘Why do we pardon soldiers executed in World War I? We do it for their children and their grandchildren. Whānau felt it was important to get the smear off. Māori articulate that as part of mana.
‘‘We can all relate to lifting the stain but the common law didn’t have space for that so that wonderful thread of tikanga in this particular instance didn’t create an alien concept but just said there is a law in New Zealand that should be taken into account.
‘‘The fact Peter’s case will be remembered for its tikanga aspects would have made him smile,’’ Harrison says.
He rejects any suggestion the Supreme Court was creating law in deciding to continue the Ellis appeal partly on tikanga grounds.
‘‘It’s a very old principle that has always said that where you have a colonised country, the laws of the colonised continue to apply unless they are contrary to English common law.’’
Reflections
As Harrison prepares to pack away a truck’s worth of Ellis case files and documents created over 30 years, the question of why it took so long to get justice for Ellis remains.
At each stage of the saga through the courts and different governments, Harrison thought common sense would prevail, but he would be disappointed as each review failed to upset the verdicts.
‘‘The failure here was those organisations that facilitated the way this case developed. The Department of Social Welfare and the police, those sorts of institutions, brought this about. I think the children involved in the case should be seen as victims. I believe those institutions failed in their duty of care to children when they interviewed them.
‘‘I remember especially two young girls who were trying to tell the interviewers about some actual sexual abuse by an uncle. But the interviewer just wasn’t interested.’’
He doesn’t want to speak ill of the dead, but he believes Ellis’ outrageous lifestyle may have made it difficult for some to overcome their prejudices.
He also blames a change in law in 1989, when a new section was hitched to the Evidence Act. The section, a well-meaning response to the need to bring sex abusers of children to account, allowed experts to say behaviours exhibited by allegedly sexually abused children were consistent with children who were known to have been abused.
In other words, an expert could say a child’s bed-wetting could support the truth of their account about sexual abuse because a number of sexually abused children displayed the symptom.
Although there were strict parameters around what experts could say, they often strayed into commenting on the credibility of the child’s evidence.
One of the experts who had fought and advised on the change was child psychiatrist Karen Zelas, now a published poet, who wore many hats in the Ellis saga. When the allegations first arose she advised parents and police. She also had a supervisory role over the Social Welfare interviewers and then gave evidence as an expert for the Crown.
In her evidence she referred to clusters of behaviours as consistent with sexually abused children, although that was wrong. She failed to point out or discounted other possible explanations for the behaviour.
In its decision the Supreme Court identified Zelas’ evidence
and the way it was presented as one of the main reasons for quashing Ellis’ convictions.
Ironically, given all the attention given to the children’s interviews, they did not figure much in the Supreme Court’s decision, which focused on Zelas and contamination of the children’s accounts by parental questioning and other factors.
Harrison said Zelas had a huge reputation at the time as the leading light in child psychiatry.
‘‘She had a lot of mana and we didn’t have the expertise available in previous appeals as we had in the Supreme Court. Her evidence was very powerful.
‘‘I don’t know whether judges were swept along by that, but I was worried the high regard in which she was held would colour the way her evidence, which in the end proved to be shonky, would be seen.’’
DEFENDING SEX OFFENDERS
Failing to persuade a jury Ellis was innocent was not a great advertisement for his practice, Harrison says, but a large part of his practice over coming years was defending child sexual offenders. He also did his fair share of murderers, drug dealers and violent offenders.
‘‘It’s [sex offenders] an unpopular area to work in, and the money isn’t great. Some lawyers didn’t like the area because you were vilified because you’re walking next to the worst of the worst – a child sex offender.
‘‘But when you are at the bottom of the heap and deeply in the shit you need someone to not judge you and see how they can assist.
‘‘By way of example I acted for a guy in his 60s who was in jail for a sexual offence against a child. While he faced a new charge, he had a heart attack and barely survived. Afterwards he rang me and said he needed to speak to the police, but he wanted me there.
‘‘He eventually pleaded guilty and was sentenced to preventive detention. At the meeting this guy grabs my hand while he goes on to describe every event of abuse he has done with young children for the last five years. It was horrendous but he needed support. I represented him to ensure the process was done properly and to ensure he was treated fairly.’’
While he loathes child abuse of any kind, that doesn’t mean the process of law should treat child sex offenders any differently, Harrison says.
‘‘If you don’t hold them (the authorities) to account, we will get more people like Peter Ellis.’’