Peter Hugh Mc Gregor Ellis - Ministerial Inquiry

Ministerial Inquiry

In March 2000, then Minister of Justice, Phil Goff, established a ministerial inquiry into the conduct of the interviews, headed by Sir Thomas Eichelbaum. This was undertaken in response to ongoing concerns over the reliability of the children's evidence. In a later submission, Ministry officials stated that the Ministerial Inquiry was "intended to address specific areas of concern that might not have been seen to have been fully resolved by the Court of Appeal". Released in March 2001, Eichelbaum's inquiry concluded that the interviews were of good quality overall, and that though excessive questioning by some parents could have led to some contamination, this would not have been sufficient to affect the convictions.

Eichelbaum made several comments about the case. He found that "the evidence emerged in a credible way". If a particular allegation was induced by a leading question, but jurors did not view the tape, it could not have caused Mr Ellis "any prejudice". The interviewers "were rarely coercive, and remained neutral throughout". The arguments raised by Ellis's counsel in relation to mass allegations "were recognised and traversed" at trial and during two Court of Appeal hearings. Whatever "shortcomings as occurred in the interviewing process did not lead to convictions". In relation to the legal process, "doubtful allegations and charges were weeded out. Some charges were dismissed at a preliminary stage, and others during the pre trial process. The jury was astute in identifying those where the supporting evidence or the method by which it emerged was open to valid criticism". The case put forward on Ellis's behalf failed "by a distinct margin; I have not found this anything like a borderline judgment".

The ministerial inquiry was itself controversial. Thomas Eichelbaum was instructed in his terms of reference to seek opinions "from at least two internationally recognised experts (if possible with experience in mass allegation child sexual abuse)". Val Sim, then chief legal counsel at the Justice Ministry, advised Sir Thomas on possible candidates. Many leading sex abuse researchers and experts were "discounted" by Sim, due to previous involvement with the case, short publication histories, an overly academic focus, or a controversial public profile. This included Stephen J. Ceci because he had already expressed a view on the case in the media. Gail Goodman's career had been controversial, but Goodman was Sim's first choice. Two experts were selected: Graham Davies, professor of psychology (UK), and Dr Louise Sas (Canada), a clinical psychologist and child advocate who had no prior experience in mass allegation creche cases. In a confidential Ministry of Justice memo, Eichelbaum stated that he didn't appoint Ceci or Goodman because of their "research direction" and "high profile". Eichelbaum was advised by Val Sim to ignore Thorp's report because it was not a public document.

Eichelbaum interpreted his terms of reference such that he did not interview anyone who had been directly involved with the case. He did not speak with any of the children. He did not speak with the children's parents, some of whom regularly visited the Civic Crèche . He did not speak with the children's evidential interviewers. He did not speak with any of the crèche workers. He did not speak with Ellis's mother. He did not speak with Peter Ellis. He did not speak with the oldest complainant, one of seven children upon whose evidence Ellis was convicted. Several months after the trial had ended, the child stated that she had not been sexually abused. Eichelbaum did not seek advice from academics within New Zealand universities when appointing experts for his inquiry. The only people with whom Eichelbaum discussed the matter of the selection of the experts were Justice Ministry officials and Thomas Lyon, a USA law professor. In 1999 Lyon criticised the direction and relevance of research undertaken by experts nominated by Ellis's counsel. Lyon's critique was cited approvingly in the Crown's submission to the ministerial inquiry.

The Crown submission said: "The new wave researches assume that highly suggestive interviewing techniques are the norm in an abuse investigation when there is little empirical evidence to support this view". Stephen J. Ceci, one of the "new wave", has rejected this claim. Also, it is difficult to see the relevance of the above quote in the context of the Civic Creche case, which is atypical of sex abuse investigations. Lyon agrees that "if one knows whether a particular child was interviewed with suggestive techniques, then one need not ask what most interviews are like". Two of the "new wave", Ceci and Maggie Bruck, wrote an amicus brief on suggestibility in support of Kelly Michaels. It was signed by 43 of the 46 researchers who were asked to do so, among them some of the "most well-respected researchers in psychology" (Lyon). Michaels' convictions were subsequently overturned. Ceci and Friedman write that "what Lyon characterizes as a 'new wave' of research is actually a broad and long-standing scientific mainstream".

Eichelbaum claimed that "the experts and I independently reached the view that the children's evidence in the conviction cases was reliable". Eichelbaum did not say how he determined the children's evidence to be reliable. Professor Graham Davies, one of his appointees, did not assert that the children's evidence was reliable. He wrote he would not "pronounce on the reliability of individual children's accounts". The children's age and the historic nature of the alleged abuse meant that the children could not "be expected to provide the kind of detailed and spontaneous accounts which are so useful from the point of view of making judgements on reliability". Davies stated that he had doubts about the accuracy of allegations concerning abuse outside the crèche. Five guilty verdicts resulted from such allegations.

Louise Sas did not refer to the lack of corroboration of the children's claims. She said that "some parents may have wrongly attributed their child's symptoms to abuse without considering an alternative hypothesis". In her discussion of bizarre allegations in one complainant's evidential interview, she mentioned children being hung in cages as an example of an event "that really happened". The child had claimed that Peter Ellis's mother placed him and other children in cages which were hung from the ceiling. No cages were found and Peter Ellis's mother was not the subject of any charges.

Sas noted, as did Davies, that the interviewers had made errors during the interviewing of children. She concluded that these errors were of no consequence and that the children's evidence was reliable.

Sir Thomas Eichelbaum was unconcerned about the lack of corroboration of the children's claims. Graham Davies, however, wanted the issue of corroboration to be investigated as part of "the wider inquiry". Davies erroneously believed that his report was part of a wide-ranging inquiry. Eichelbaum's terms of reference meant that he did not need to traverse the issues raised in Sir Thomas Thorp's report. Eichelbaum therefore did not try to determine whether the opinions of Parsonson, Ceci and Wood had substantial support.

Phil Goff, then Minister of Justice, claimed that the Ministerial Inquiry had cost $500,000. The amount budgeted for the inquiry was $500,000 to $800,000. The actual cost was $148,878.

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