FROM PAGE B1
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 for 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.’’