After almost 30 years the Supreme Court has quashed Peter Ellis’ convictions for child sex abuse, labelling his case a "substantial miscarriage of justice".
In 1993, Ellis, a childcare worker, was found guilty of 16 sexual abuse charges against children at the Christchurch Civic Creche.
Ellis, who since being convicted has always maintained his innocence, was granted the appeal before his death in September 2019.
His lawyer argued Ellis deserved Tikanga - the right to establish the mana of a dead person.
The appeal is his third, following two in the 1990s. The first resulted in three convictions being quashed but the second appeal against the remaining 13 convictions was dismissed in 1999.
Ellis was 33 years old when he faced child sex abuse allegations in November 1991, against a backdrop of increased anxiety about child sex abuse in western countries.
Ellis spent his life trying to clear his name, and today his brother Mark sat in the Supreme Court listening to the words his late brother had waited so long to hear.
"This Court has unanimously allowed Mr Ellis' appeal and quashed his convictions," said Chief Justice Dame Helen Winkelmann.
The Supreme Court found two key problems in Ellis' trial resulting in a "substantial miscarriage of justice".
Expert witness
Specialist psychiatrist Dr Karen Zelas gave evidence at Ellis' 1993 trial under section 23G of the Evidence Act 1908 - which has since been repealed.
The court acknowledged s 23G was an "extremely difficult" section for an expert to give evidence under.
The Supreme Court found Zelas' evidence commented on the credibility and reliability of the complainants, who were young children, which was not allowed by the section of the act.
It found Zelas' evidence lacked balance too, the Dr "failed" to fairly inform the jury of other possible explanations for the behaviour and "discounted or minimised" explanations given by the defence.
"Dr Zelas' multiple roles in relation to the investigation and prosecution may have contributed to that imbalance in her evidence."
The Supreme Court found Zelas' evidence "suffered from problematic circular reasoning".
"She suggested the fact a child had made an allegation of sexual abuse transformed normal childhood behaviours indicative of sexual abuse."
The effect of Zelas' evidence "incorrectly" suggested to the jury that "clusters" of behaviours supported a finding of sexual abuse, the Supreme Court found.
"That impression was compounded by the chart the Crown produced at trial which was itself an unbalanced and unfair representation of the evidence it purported to summarise."
With all considered, Zelas' evidence may have affected the verdicts, with much of the evidence being outside of the boundaries of s 23G "making its admission an error of law".
Contamination
The Supreme Court found while the risk of contamination of the complainants’ testimony was highlighted at the 1993 trial, the jury was not fairly informed of the level of risk.
The most significant contamination was direct questioning by the complainant's parents.
Experts for both the appellant and the Crown agreed on the level of risk of contamination.
Professor Harlene Hayne gave evidence for the appellant and said the risk of contamination was high.
Prof Hayne identified potential contamination: parents-to-parent discussions were had during the investigatory phase, discussions between parents and complainants about the allegations and complainant-to-complainant discussions.
The Crown's expert, Professor Gail Goodman, agreed with Prof Hayne's analysis.
Prof Goodman found there was a high risk of contamination in relation to four of the complainants, but the remaining two were at moderate or low risk of contamination.
The court concluded Zelas' evidence "understated or mischaracterised" the risk of contamination, and the effect of her evidence was not counteracted through cross-examination, evidence of the defence’s expert witness, counsel submissions or the trial Judge’s summing up.
The Court found it "significant" that Zelas expressed concern about possible contamination of the account of two complainants before the trial, but expressed no concern at the trial itself.
"From the jury’s perspective, her evidence suggested (at least implicitly) that she did not detect contamination in the complainants’ evidence, giving the jury a false sense of reassurance that the contamination risk was low."
The court found Zelas' evidence was to the effect that contamination could be readily detected, but Prof Goodman and Prof Hayne found it would not have been readily detectable.
The court said if the jury had been correctly informed of the level of risk, it may have created a reasonable doubt about the allegations made, at least in relation to some of the complainants.
"As evidence of the complainants was mutually supportive, the undermining of some of the verdicts necessarily calls into question all of the verdicts."
Chief Justice Winkelmann told the court on Friday the Supreme Court's judgement marks the end of a "long and painful journey through the courts" for many people involved in the case.
Chief Justice Winkelmann highlighted the "significant difficulties" for the parents of the complainants.
"They were in an impossible position - parental love and concern would have made it very difficult not to ask their children direct questions."
Adding discussions between parents during the investigation phase would have been exacerbated when the investigation saw delays and ongoing public controversy.
"This Court's judgement was not to be read as a criticism of the parents, the complainants or those involved in the investigation and trial."
Chief Justice Winkelmann said with the benefit of hindsight "the special care and attention required for a case of such unprecedented complexity was underestimated" at the time of the investigation and trial.
"This resulted in a miscarriage of justice."
