Reference to the Court of Appeal of the Question of the Convictions of Peter Hugh McGregor Ellis for Sexual Offences Against Children THOMAS EICHELBAUM, Administrator of the Government ORDER IN COUNCIL At Wellington this 4th day of May 1998 Present: His Excellency the Administrator of the Government in Council His Excellency the Administrator of the Government, acting under section 406 (a) of the Crimes Act 1961 and by and with the advice and consent of the Executive Council, refers the question of the 13 convictions of Peter Hugh McGregor Ellis for sexual offences against children to the Court of Appeal for hearing and determination. The background to, and the reasons for, the reference appear in the Schedule. Schedule 1. Interpretation In this Schedule, ``the applicant'' means Peter Hugh McGregor Ellis. Background 2. Information about trial and appeal (1) On 5 June 1993 the applicant was convicted in the High Court at Christchurch on 16 charges of sexual offences against 7 children who had attended the Christchurch Civic Childcare Centre. (2) On 22 June 1993 the applicant was sentenced by the High Court at Christchurch to a total of 10 years imprisonment. (3) On 8 September 1994 the Court of Appeal (a) Allowed the applicant's appeal in respect of 3 counts relating to one child, identified as child A, who retracted her evidence during the hearing of the appeal in the Court of Appeal; and (b) Dismissed the applicant's appeal against the remaining 13 convictions. 3. Information about trial evidence, and statement by court on appeal (1) Evidence at trial included evidence given by the child complainants. (2) The child complainants were interviewed a number of times in the course of the inquiry into alleged sexual offending at the Christchurch Civic Childcare Centre. (3) The interviews were conducted by the Specialist Services Unit of the Department of Social Welfare under the supervision of a specialist child psychiatrist. (4) The interviews were conducted in accordance with the Evidence (Videotaping of Child Complainants) Regulations 1990. (5) In allowing the appeal in respect of child A, the Court of Appeal said that it was not uncommon for child complainants in sexual abuse cases to withdraw their allegations or claim they were lying. 4. Information about Dr Barry Parsonson (1) The applicant commissioned Dr Barry Parsonson to prepare reports in support of some of the grounds in the applicant's application for the exercise of the mercy of the Crown. (2) Dr Barry Parsonson is a registered psychologist. He is currently employed part-time as an Associate Professor of Psychology at the University of Waikato and also works part-time as a consultant psychologist. 5. Applicant's application for exercise of mercy of Crown (1) The applicant made an application, received on 2 December 1997, for the exercise of the mercy of the Crown in respect of his convictions for sexual offences against children. (2) One ground of the application is, among others, that, since the applicant's appeal, it has become clear that the methods of obtaining evidence from the child complainants were flawed and had unacceptably high risks of contamination. (3) The submissions in support of this ground include the submission that 3 reports by Dr Barry Parsonson relating to the techniques of interviewing children contrast, unfavourably, the techniques used in the applicant's case with the techniques used today. The titles of the reports are set out in clause 6 (3). (4) A further ground of the application is, among others, that, since the applicant's appeal, it has become clear that the recantation of child A was of greater significance than the Court of Appeal had appreciated. (5) The submissions in support of this ground include the submission that a report by Dr Barry Parsonson indicates that the process by which the retraction was dealt with was unfair and based on inadequate scientific evidence. The title of the report is set out in clause 7 (3). (6) A further ground of the application is, among others, that, since the applicant's appeal, it has become clear that the jury which convicted him failed to disclose that it might not be impartial and as a result he did not receive a fair trial. (7) The submissions in support of this ground are, among others, that (a) The Crown witness identified as child A's mother worked with the intimate partner of one of the jurors; and (b) Child A's mother and the juror's partner worked together in a small, multi-disciplinary team in an open plan work environment; and (c) Child A's mother and the juror knew each other through the juror's partner; and (d) Given the circumstances of the case, namely a high profile, lengthy, sexual abuse case, it was unfair and unjust for the juror to have remained on the jury. 6. Documents relating to ground involving children's evidence (1) In support of the ground described in clause 5 (2), the applicant tendered 3 reports by Dr Parsonson. (2) In reaching his conclusions in each report, Dr Parsonson relies, in part, on clinical studies published after the applicant's appeal. (3) The reports are (a) ``Comment on the Probability of contamination in `disclosures' obtained from children in the case of R v Ellis'', dated 30 November 1997, in which Dr Parsonson concludes that, in his opinion, ``given the conditions prevailing, the level of parental contamination, and the extremely suggestive interviewing procedures, the probability of the proportion of fact outweighing the proportion of fiction must be very, very small indeed'': (b) ``The interviewing of children: Effects of question form, props, question repetition and repeated interviews on the accuracy of children's reports. A review and commentary in respect of the Christchurch Civic Crche interviewing and interviewers'', dated 27 November 1997, in which Dr Parsonson concludes that, in his opinion, the techniques for interviewing children used in the applicant's case would not be used today: (c) ``Children's memory: A brief review of developments'', dated 27 November 1997, in which Dr Parsonson concludes that, in his opinion, children, especially children under 8 years old, are susceptible to suggestion in recalling and reporting events. 7. Documents relating to ground involving retraction (1) In support of the ground described in clause 5 (4), the applicant tendered one report by Dr Parsonson. (2) In reaching his conclusions in the report, Dr Parsonson relies, in part, on clinical studies published after the applicant's appeal. (3) The report is ``Retraction of allegations of abuse by children'', dated 27 November 1997, in which Dr Parsonson, having reviewed research on interviewing and retraction, states that he cannot share the conclusion expressed in the Court of Appeal decision that it is not uncommon for child complainants to withdraw their allegations. 8. Documents relating to ground involving jury (1) In support of the ground described in clause 5 (6), the applicant tendered an affidavit by the Crown witness identified as child A's mother, dated 29 November 1997, stating, among other things, (a) That she knew and was known to a jury member; and (b) That she knew that juror as the partner of a work colleague; and (c) That during the 6 weeks of the trial there was considerable tension in the office which impacted on her relationship with the juror's partner and on the other staff; and (d) That she reported the fact that she knew the juror to a person in authority and was told the relationship was not that strong and not to worry about it. (2) The Ministry of Justice received a statement from the juror in question, dated 25 November 1997. The statement was unsolicited. It states, among other things, (a) That she served as a juror in the High Court trial of the applicant; and (b) That she did not recognise the name of child A's mother on the list of witnesses' names; and (c) That she did not recognise child A's mother when she gave her evidence; and (d) That at the end of the first day of the trial she was told by her partner that a work colleague of her partner had given evidence that day; and (e) That she raised the connection with a jury assistant who, within about half an hour, informed her that the information had been relayed to the appropriate officers of the court and told her that the association did not warrant her standing down as a juror. (3) The Ministry of Justice received a letter from the Registrar of the High Court at Christchurch, dated 17 March 1998. The Ministry had asked the Registrar for information on matters raised in the application. The letter reports that the Registrar had found a note in the trial judge's notebook for 27 April 1993 reading ``9.30 Mrs Hay says 1 juror says a flatmate works with mother of child''. 9. Additional grounds (1) The applicant has, subsequent to his application received on 2 December 1997, submitted further grounds for his application that are additional to the grounds described in clause 5. (2) One further ground, among others, is that photographs that were clearly important for the defence (a) Existed at the time of the applicant's trial; and (b) Were in the possession of the Crown at that time; and (c) Were not disclosed to the defence despite a request for them being made. (3) The applicant submits that the photographs were clearly important for the defence because (a) They were of the Christchurch Civic Childcare Centre in operation before the inquiry into alleged sexual offending at the centre; and (b) They demonstrated in a compelling way that the sexual abuse that was alleged to have taken place in the toilet area was highly unlikely to have happened; and (c) They were relevant to show that there was an innocent explanation for some of the games described by some of the children in their evidence. (4) The applicant has indicated that he intends to provide evidence by way of affidavit to the Court of Appeal in support of the ground described in subclause (2). (5) The Ministry of Justice received a letter from the Crown Solicitor's office at Christchurch, dated 24 April 1998. The Ministry had sought comments from the Crown Solicitor's office on the further grounds for the applicant's application. The Crown Solicitor's office, in the letter, contests the allegation of non-disclosure and the importance of the photographs. Reasons 10. Reasons The reasons for the reference are (a) That the documents described in clauses 6 and 7 indicate that evidence is available that could lead the Court of Appeal to the conclusion that a miscarriage of justice might have occurred because of the techniques used to obtain the evidence of the child complainants; and (b) That the documents described in clause 8 indicate that evidence is available that could lead the Court of Appeal to the conclusion that a miscarriage of justice might have occurred because, if the trial judge did not know the nature of the relationship between the juror and her intimate partner, he would have been unable properly to assess the closeness of the connection between the juror and the Crown witness; and (c) That, if the applicant establishes that the photographs described in clause 9 were not disclosed to his counsel at trial, this could lead the Court of Appeal to the conclusion that a miscarriage of justice might have occurred because photographs that the applicant considers would have been important to the defence were not disclosed to it. BOB MACFARLANE, Clerk of the Executive Council.