Legal Research
Cases
Ellis v R

Ellis v R

Case [2019] NZSC 83 31 July 2019

Appeal

Miscarriage of Justice

Expert Evidence

Admissibility of Evidence

Jurisdiction

Criminal Law

Type to search within this case.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF WITNESSES UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 49/2019
[2019] NZSC 83

BETWEEN	PETER HUGH MCGREGOR ELLIS Applicant
AND	THE QUEEN Respondent

Court:	Glazebrook, O’Regan and Williams JJ
Counsel:	R A Harrison for Applicant M J Lillico for Respondent
Judgment:	31 July 2019
Reissued:	7 October 2022

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

B The application for leave to appeal is granted.
C The approved ground of appeal is whether a miscarriage of justice occurred in this case.

____________________________________________________________________

REASONS

Introduction

Mr Ellis was convicted, after a trial in the High Court in Christchurch in 1993, of 16 counts of sexual offending against seven child complainants.[1] The complainants attended the Christchurch Civic Childcare Centre where Mr Ellis was employed. He was sentenced to 10 years’ imprisonment on 22 June 1993.[2]
[1]Mr Ellis was acquitted on a further nine charges. He was also discharged on three charges during the trial under s 347 of the Crimes Act 1961.
[2]R v Ellis HC Christchurch T9/93, 22 June 1993 (Williamson J).
Mr Ellis applies to this Court for leave to appeal against the decisions of the Court of Appeal[3] dismissing his appeal against conviction.[4] He also applies for an extension of time to make this application.

The trial

[3]As discussed below at [5], Mr Ellis had two appeals. His first was dismissed in 1994: R v Ellis (1994) 12 CRNZ 172 (CA) (Cooke P, Casey and Gault JJ) [First appeal judgment]. The second was dismissed in 1999: R v Ellis [2000] 1 NZLR 513 (CA) (Richardson P, Gault, Henry, Thomas and Tipping JJ) [Second appeal judgment].

[4]As the Court of Appeal dismissed Mr Ellis’ (second) appeal before 1 January 2004, a further appeal would ordinarily lie to the Privy Council: Supreme Court Act 2003, s 50(1); and Senior Courts Act 2016, sch 5, pt 1, cl 3(1). However, counsel for Mr Ellis and for the Crown have agreed in writing that Mr Ellis may seek the leave of this Court to appeal against his convictions: Supreme Court Act, s 50(2)(b); and Senior Courts Act, sch 5, pt 1, cl 3(2)(b).

At Mr Ellis’ trial the evidence-in-chief of the child complainants was given through pre-recorded evidential interviews. We understand that the complainants were aged between two and five years at the time of the alleged sexual offending, between five and a half and nine years during the evidential interviews and between six and a half and 10 years during the High Court trial.
There was also evidence given at trial of alleged behaviours exhibited by the complainants, including toileting and sleep-related difficulties, fear and dislike of Mr Ellis and other adult males,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ellis v R

Details

AGLC: Ellis v R [2019] NZSC 83
Case: [2019] NZSC 83
Decision Date: 31 July 2019

CaseChat Overview and Summary

Mr Ellis was convicted in 1993 of 16 counts of sexual offending against seven child complainants and sentenced to 10 years’ imprisonment. The Court of Appeal dismissed his appeal against conviction in 1999, and a further appeal would ordinarily lie to the Privy Council. However, counsel for Mr Ellis and for the Crown have agreed in writing that Mr Ellis may seek the leave of this Court to appeal against his convictions. The legal issues before the Court were whether the application for an extension of time to apply for leave to appeal should be granted, and whether the application for leave to appeal should be granted. The Court considered whether the delay was adequately explained and whether there were compelling reasons to extend time. It found that the research underpinning Professor Hayne’s evidence was only very recently completed and that the type of empirical analysis of the evidential interviews that she has conducted is a new approach and significantly different from the expert evidence available to the Court of Appeal in 1999. The Court also found that the affidavits of Professor Hayne and Dr Patterson raise issues of general and public importance and significant issues specific to Mr Ellis’ case. The interest of justice requires that these issues be ventilated on appeal, despite the length of time since the second Court of Appeal decision. The Court granted the application for an extension of time to apply for leave to appeal and the application for leave to appeal. The approved ground of appeal is whether a miscarriage of justice occurred in this case.

The Court issued orders for a telephone conference to be arranged between Glazebrook J and counsel to canvass arrangements for the hearing of the appeal, including whether Mr Ellis will apply for leave to adduce further evidence, whether the Crown objects to the admission at the appeal hearing of the affidavits filed in support of the application for leave to appeal, the approximate timeframe for the Crown to file its evidence in reply, a timetable for filing submissions, and the likely duration and timing of the appeal hearing.

Orders