From start to finish
The long-distance agony of representing an innocent client
‘‘Sitting there the contrast between the straightlaced 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.’’ Rob Harrison
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 in town, 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 long hand.
“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.’ Peter knew all these kids and their family backgrounds and he didn’t want them traumatised and 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.