Peter Hugh McGregor Ellis v The Queen

SC 49/2019

This hearing began in Te Kōti Mana Nui o Aotearoa—the Supreme Court of New Zealand on 4 October 2021.  It ran for nearly two weeks, finishing on 14 October 2021.

The first week mainly included evidence from expert witnesses.  The second week was focused on submissions from counsel.

Suppression

Publication of the names or identifying particulars of the complainants is prohibited by s 139 of the Criminal Justice Act 1985.

Publication of the names names or identifying particulars of child witnesses under the age of 17 is prohibited by s 139A of the Criminal Justice Act 1985.

Information for attendees

As a result of COVID-19 restrictions, access to the Supreme Court building will be limited to media, victims (including victim whānau and support persons), family members of the appellant, counsel and court staff.

Remote public viewing is available at the Wellington High Court in Courtroom 6 but due to COVID-19 Alert Level 2, numbers will be limited and will be on a first come, first served basis.

Access to the High Court is on the following conditions:

  • All members of the public must sign in using either the contact tracing app or written record maintained by court staff.
  • Members of the public should not attend if unwell.
  • Members of the public attending are required to wear masks in the courtroom and public spaces except for those with a medical exemption.
  • Inside the courtroom, members of the public must be seated and are asked to comply with social distancing measures.

Relevant protocols are listed below.

Background

Peter Ellis was convicted on 16 charges of sexual offending against seven children in 1993.  The complainants attended the childcare centre where Mr Ellis was employed.

Mr Ellis appealed twice to the Court of Appeal, the second time after a referral by the Governor-General.  The first appeal in 1994 quashed three of the counts of sexual offending against one complainant.  The second appeal against the remaining 13 convictions was dismissed in 1999.

In mid-2019, Mr Ellis successfully applied to the Supreme Court for leave to appeal against his convictions and an extension of time to make the application for leave to appeal.  Although Mr Ellis died in September 2019, the Supreme Court subsequently decided that the appeal could continue.

The issues in the appeal are:

  • Whether there was a miscarriage of justice arising from risks of contamination of or improperly obtained complainant evidence;
  • Whether there was a miscarriage of justice arising from lack of expert evidence on the reliability of children complainants’ evidence;
  • Whether there was a miscarriage of justice due to unreliable expert evidence being led at trial.

Timeline

  • The Crown applied for leave adduce new evidence on appeal.  The proposed evidence was that of a witness who detailed alleged offending by Mr Ellis against her which is said to be of a similar nature, but earlier in time, to the conduct that formed the basis of Mr Ellis’ convictions.

     

    The appellant then applied to adduce further evidence in response to the evidence of the Crown's proposed witness.

     

    On 25 March, the Court heard submissions about whether new evidence should be admitted: [2021] NZSC Trans 3.

     

    On 15 June, the Court dismissed the Crown’s application and ruled that the proposed evidence was inadmissible.  Reasons for this decision followed on 1 July: Ellis v R [2021] NZSC 77.

     

    On 4 October, a two-week hearing ran in the Supreme Court.  This hearing involved the main issues in the case.

  • On 25 June, the Court heard submissions from the parties and the intervener, Te Hunga Rōia o Aotearoa (the Māori Law Society) on the following questions ([2020] NZSC Trans 19):

    1. whether tikanga Māori is relevant to any aspect of the Court’s decision on whether the appeal should continue;
    2. if so, which aspects of tikanga; and
    3. if relevant, how tikanga should be taken into account.

     

    The Court considered those submissions, along with the submissions heard on 14 November 2019, in order to decide whether or not the appeal should proceed.

     

    On 1 September, the Court decided that the appeal was to continue: Ellis v R [2020] NZSC 89.

     

    On 11 November, the Court heard from counsel about which suppression orders should apply, if any, to additional evidence that the Crown wished to have admitted: [2020] NZSC Trans 26.

     

    On 13 November, the Court issued new suppression orders, with reasons for this following on 7 December: Ellis v R [2020] NZSC 137.

  • In June, Mr Ellis applied to the Supreme Court for leave to appeal against his convictions.  Mr Ellis also applied for an extension of time to make the application for leave to appeal.  The Crown opposed both applications.

     

    On 31 July, the Court granted both applications: Ellis v R [2019] NZSC 83.

     

    On 4 September, Mr Ellis passed away.

     

    On 14 November, the Court held a hearing to determine whether the appeal should continue despite Mr Ellis' death: [2019] NZSC Trans 31.

  • On 26 February, Sir Thomas delivered his report.  He concluded there was no risk of a miscarriage of justice.

  • In March, the Minister of Justice, Hon Phil Goff, requested Sir Thomas Eichelbaum, former Chief Justice of New Zealand, conduct a Ministerial inquiry into the case.

  • In July, the Court of Appeal heard the second appeal.  The hearing included only the matters raised in the Governor-General's terms of reference.

     

    On 14 October, the Court dismissed the appeal: R v Ellis [1999] NZCA 226; [2000] 1 NZLR 513.

     

    On 18 October, Mr Ellis made a third application under s 406 for a free pardon and the establishment of a Royal Commission of Inquiry into his convictions.

  • On 4 May, the Governor-General referred the remaining convictions to the Court of Appeal.

     

    On 9 June, the Court decided that it would only hear submissions about matters raised in the Governor-General's terms of reference: Ellis v R [1998] NZCA 233; [1998] 3 NZLR 555.

     

    On 16 November, Mr Ellis made a second application under s 406 seeking that the whole case be put before the Court of Appeal.  This would have expanded the terms of reference.

     

    The Secretary for Justice obtained advice from Sir Thomas Thorp, a former High Court judge, about whether this should occur.  Sir Thomas advised that it should.

  • On 2 December, Mr Ellis presented a petition to the Governor-General under s 406 of the Crimes Act 1961 seeking a free pardon in respect of the 13 remaining convictions, or reference of the convictions to the Court of Appeal for further consideration.

  • Mr Ellis appealed to the Court of Appeal.  The convictions on three of the counts were quashed.  The appeal was otherwise dismissed.

  • Mr Ellis stood trial in the High Court at Christchurch for sexual offending against seven children.  The complainants attended the Christchurch Civic Childcare Centre where Mr Ellis was employed.

     

    Mr Ellis was convicted of 16 counts of sexual offending.  He was acquitted on a further nine charges and was discharged on three charges during the trial.

     

    On 22 June, Mr Ellis was sentenced to 10 years’ imprisonment.