Ellis v The Queen - [2020] NZSC 137

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.

ORDER PROHIBITING PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF THE COMPLAINANT, HER FAMILY MEMBERS AND HER BOYFRIEND.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 49/2019
[2020] NZSC 137

BETWEEN	PETER HUGH MCGREGOR ELLIS Appellant
AND	THE QUEEN Respondent

Hearing:	11 November 2020
Court:	Winkelmann CJ, Glazebrook, O’Regan, Williams and Arnold JJ
Counsel:	R A Harrison, S J Gray and B L Irvine for Appellant J R Billington QC and A D H Colley for Respondent
Order:	13 November 2020
Reasons:	7 December 2020

JUDGMENT OF THE COURT

We make an order rescinding the existing suppression orders and, in their place, suppressing the name and identity of the complainant, all members
of her family, of her boyfriend, and any other identifying particular.

REASONS
(Given by Winkelmann CJ)

In July 2019, Mr Peter Ellis was granted leave to appeal against the decision of the Court of Appeal,[1] dismissing the appeal against his 1993 conviction for sexual offending against children.[2] Although Mr Ellis died in September 2019, this Court subsequently decided that the appeal could continue.[3]
[1]R v Ellis [2000] 1 NZLR 513 (CA) (Richardson P, Gault, Henry, Thomas and Tipping JJ) [CA judgment].
[2]Ellis v R [2019] NZSC 83 [Leave judgment].
[3]Ellis v R [2020] NZSC 89.

The Crown has now applied to admit additional evidence on appeal. The proposed evidence is that of a complainant who details offending by Mr Ellis against her which is of a similar nature, but earlier in time, to the conduct that formed the basis of Mr Ellis’ convictions, now the subject of this appeal. If admissible, the evidence from this witness will be admitted as propensity evidence.[4] At issue is whether and what suppression orders should continue in respect of the proposed evidence.
[4]Evidence Act 2006, ss 40 and 43.
This is the second time the Crown has applied to admit the evidence of this witness. It initially sought to have the evidence admitted as relevant to the issue of whether the appeal should continue after Mr Ellis’ death. However, this Court determined that the evidence was irrelevant to that issue and, having so determined, made an order suppressing the evidence, and its judgment concerning that evidence, until further order of the Court.[5]
[5]Ellis v R [2019] NZSC 122 at [9] [First suppression order].
The Court having determined the appeal could continue, the Crown then applied to have the evidence in question admitted as relevant to the issues at the hearing of the substantive appeal. A hearing date was set for that application to admit the evidence. The Crown applied for the suppression orders to be lifted. On 6 November 2020, the Court suppressed the reasons for and subject matter of…

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 The Queen

Details

AGLC: Ellis v The Queen [2020] NZSC 137
Case: [2020] NZSC 137
Decision Date: 7 December 2020

CaseChat Overview and Summary

Ellis v The Queen involved an appeal against the dismissal of an appeal against a 1993 conviction for sexual offending against children. The Crown sought to admit additional evidence on appeal from a complainant detailing similar, but earlier, offending by Mr Ellis. The issue was whether and what suppression orders should continue in respect of the proposed evidence. The Court had to decide whether the existing suppression orders should be rescinded, and if new suppression orders should be made in relation to the proposed evidence.

The Court considered the principles of open justice and freedom of expression, which are especially weighty considerations in this proceeding due to the high level of public interest in the case. The Court weighed the countervailing interest of protecting the identity of the proposed witness, who would give evidence of sexual assault. The Court concluded that the countervailing interests outweighed the principle of open justice and the right to freedom of expression, and thus justified suppression of the proposed witness’ name and any identifying particulars. The Court made an order rescinding the existing suppression orders and, in their place, suppressing the names and identities of the complainant, all members of her family, of her boyfriend, and any other identifying particular, under s 140 of the Criminal Justice Act.

Final orders were made on 13 November 2020, rescinding the existing suppression orders and, in their place, suppressing the names and identities of the complainant, all members of her family, of her boyfriend, and any other identifying particular.

Orders