Ellis v The the King - [2022] NZSC 115

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 O AOTEAROA

SC 49/2019
[2022] NZSC 115

BETWEEN	PETER HUGH MCGREGOR ELLIS Appellant
AND	THE KING Respondent

Hearing:	4–8 October 2021 and 12–14 October 2021
Court:	Winkelmann CJ, Glazebrook, O’Regan, Williams and Arnold JJ
Counsel:	R A Harrison, S J Gray, B L Irvine and K D W Snelgar for Appellant J R Billington KC and A D H Colley for Respondent
Judgment:	7 October 2022

JUDGMENT OF THE COURT

AThe applications to adduce further evidence are granted.

B The appeal is allowed.
C The convictions of the appellant are quashed.

____________________________________________________________________

SUMMARY OF RESULT

Background

The appellant, Peter Ellis, was convicted after a jury trial in 1993 on 16 counts of sexual offending against seven children who had attended the Christchurch Civic Childcare Centre (the Crèche), where he had been a teacher. He was acquitted or discharged on 12 other charges.
The trial and the investigation that preceded it attracted considerable publicity and controversy. Because of the age and number of the complainants and the setting of the complaints, the case was almost unprecedented in the complexity it presented to those investigating, prosecuting and defending the charges. This complexity called for special care and attention and created unprecedented challenges for those involved. With the benefit of hindsight, we consider that this need for special care and attention was underestimated at the time of the investigation and trial. The case also posed difficult challenges for the parents of the complainants and the judgment should not be read as a criticism of them.
The appellant appealed against his convictions to the Court of Appeal. In 1994, the Court set aside three of the appellant’s convictions after one child recanted her evidence but otherwise his appeal was dismissed.[1] A Governor-General’s reference to the Court of Appeal led to a further hearing in the Court of Appeal in 1999 but that appeal was also dismissed.[2] The public controversy continued after those decisions. There was a Ministerial Inquiry in 2002, undertaken by a former Chief Justice, Sir Thomas Eichelbaum, who determined that the appellant had not proven that his convictions were unsafe.[3]
[1]See below at [67].
[2]See below at [70].
[3]See below at [71].
In 2019, the appellant was granted an extension of time to apply for leave to appeal to this Court against both the 1994 and 1999 Court of Appeal decisions and was granted leave to appeal. The appellant died before the appeal hearing in this Court, but the Court ruled that the appeal be allowed to continue after his death.[4]
[4]See below at [26].
The Court is unanimous that the appeal should be allowed and the 1993 convictions quashed. In this Summary, we briefly explain the…

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 the King

Details

AGLC: Ellis v The the King [2022] NZSC 115
Case: [2022] NZSC 115
Decision Date: 7 October 2022

CaseChat Overview and Summary

In Ellis v The King, the Supreme Court of New Zealand allowed an appeal against the appellant's 1993 convictions on 16 counts of sexual offending against seven children who had attended the Christchurch Civic Childcare Centre, where the appellant had been a teacher. The Court found that the evidence given at trial under s 23G of the Evidence Act 1908 was misleading and some of it should not have been admitted. This evidence was provided by Dr Karen Zelas, a specialist psychiatrist, who had multiple roles in the case, including supervising the interviewers who interviewed the complainants and assisting the Police during the investigation of the allegations against the appellant. The Court also found that the risk of contamination of the complainants' evidence was underestimated at the time of the trial, and the jury was not fairly informed of the level of the risk of contamination of the complainants' evidence. The Court concluded that the appeal should be allowed and the 1993 convictions quashed.

Orders