Mr Ellis died in 2019 at the age of 61. Nor did his staunchest advocate, his mum Lesley, live to see the court find a substantial miscarriage of justice occurred in his 1993 trial.
It found the expert evidence about the children overstepped the mark. It lacked balance and did not inform (or minimised) the other possible causes of the children’s behaviours.
Fresh evidence was given to the court from memory experts, including Prof Harlene Hayne, about the risks of contamination of the children’s evidence, most significantly direct questioning by parents.
The court found that even based on the scientific studies available at the time of the trial, the evidence at the trial understated the risk of contamination.
Controversy about the conduct of the investigation and trial, and the many bizarre claims made, has raged for decades.
Always adamant he was innocent, Mr Ellis was found guilty in 1993 on 16 counts of sexual offending against seven children who had attended the Christchurch Civic Childcare Centre where he was a teacher. He spent seven years in jail and even outside prison endured a life tainted by the convictions.
Three convictions were set aside by the Court of Appeal after a child recanted her evidence, a second challenge to the Court of Appeal was dismissed, and a ministerial inquiry in 2001 by Sir Thomas Eichelbaum found it had not been proven the convictions were unsafe.
Dunedin writer Dr Lynley Hood’s meticulously researched 2001 book A City Possessed: The Christchurch Civic Creche Case deserves special mention for influencing thinking on the case as it effectively laid out the many layers of the case and its context.
Increasingly, the case was seen as part of the world-wide moral panic and hysteria in the 1980s and early 1990s where bands of childcare workers were accused of far-fetched ritual abuse and torture of children.
As the judges said, the parents were in an impossible position — parental love and concern making it difficult to not ask their children direct questions about the alleged offending or discuss the case with other parents in the lengthy investigation.
We have not heard the last of the case yet.
Justice Minister Kiritapu Allan has sought advice on the case which may include information on compensation, although she has pointed out existing Cabinet guidelines do not provide for posthumous payouts.
We can expect to hear more too about the case’s contribution to the place of tikanga (Maori protocol) in our jurisprudence.
The decision to allow the appeal to be heard after Mr Ellis’ death involved consideration of the personal and public interest in addressing a potential miscarriage of justice and finality, with tikanga and the issue of Mr Ellis’ mana folded into that.
Two of the judges opposed the posthumous appeal on the grounds the interests of the complainants and their whanau outweighed all other factors.
The court was unanimous that tikanga had been and would continue to be recognised in the development of the common law where it was relevant.
It would be good to think valuable lessons have been learned about how to manage a case like this should one occur again.
If it happened now, it would be hoped the new Criminal Cases Review Commission, with its wide investigation powers, would be able to pick it up and deal with it more efficiently than the tortuous processes Mr Ellis and his advocates, and the complainants, endured.
