The ice caps melt, the planet heats up, living costs rise, and real wages stagnate. The middle class struggles, the poor barely survive, economies shrink and labour shortages hit businesses. Conspiracies flourish, tyrants wage war, democracy declines and a global pandemic persists. The list drags on. Hopelessness runs rife.

Except Rob Harrison doesn’t think so. His grandchildren are texting him about the Ukraine war, climate change and other worldwide catastrophes, he tells LawNews before offering some sage advice: “Don’t fall down into that despair. Look for the positives in things.”

The Blenheim-based barrister makes a good point, although it’s hard not to look at one of New Zealand’s most defining miscarriages of justice – a case Harrison has been involved in – and feel some sense of hopelessness. In life and in death, directly and from a distance, fate has linked Harrison and the late Peter Ellis, the former Christchurch crèche worker wrongfully convicted 30 years ago of sexual offences.

Right up until his death in September 2019, Ellis never wavered in maintaining his innocence. The Supreme Court two months ago ultimately upheld his third appeal. Evidence put before the jury in 1993 was incorrect or misleading, the court has ruled, and in some instances it shouldn’t have been admitted at all. Stepping back, the court found a miscarriage of justice had occurred. Ellis’ convictions were quashed. The fight for justice was long. Were there ever any moments of despair? No, there weren’t, Harrison responds. “It’s an unusual question that you ask me. Why is that?”

Thirty years of history

In the lead-up to that question, we had traversed 30 years of history. Admitted to the Bar in 1987, Harrison was well into his career when Ellis’ case came across his desk in late 1991 as a watching brief. Ellis had been suspended from his job at Christchurch Civic Childcare Centre. Harrison says it wasn’t clear why, although a suggestion of sexual offending lingered. He kept an eye on developments.

By Christmas, the police had indicated there were no concerns. However, their investigation continued into early 1992, after which an allegation of sexual abuse was made for the first time. Subsequent interviews were held with more than 100 crèche children. As the interviews progressed, some of the children who disclosed abuse by Ellis, implicated other people. And bizarre allegations started to surface, including being hurt with needles and burning paper, hung from the crèche roof in cages and taken through trapdoors.

Ellis was arrested on 30 March 1992, at which point Harrison, a category four lawyer qualified for the most serious offences, became formally involved as counsel. Given the number of complainants and the bare allegations contained in the interview transcripts, he recalls Ellis’ prospects initially looked bleak.

But the case turned around once discovery started painting a fuller picture of the background to the claims and once four of Ellis’ female co-workers were arrested in October 1992. “It started looking very, very positive because it was surreal to a certain extent, once you start seeing the entirety of the case,” Harrison says. Eleven weeks of depositions were the high point of the defence’s optimism: every interview tape was played and parents and most of the main players were cross-examined, he says.

Getting the charges thrown out was starting to look promising when the hearing ended in February 1993. However, the case got tougher as the trial neared. Charges against the four women were dismissed by Justice Neil Williamson on the grounds that their association with Ellis would prejudice their fair trial rights. And days before the trial, the judge ruled not all the interview tapes had to be presented to the jury – a ground that later formed part of Ellis’ 2019 appeal to the Supreme Court. Still, Harrison didn’t walk into the trial thinking Ellis was doomed. “The case was more difficult but we still had some very powerful witnesses before us,” he says.

‘Despair just throws me’

Standing trial alone on 28 charges relating to 13 children, Ellis was convicted on 16 counts against seven complainants, acquitted on all charges relating to four complainants and discharged on three counts relating to the remaining two complainants. On 22 June 1993, he was sentenced to 10 years’ imprisonment. He was released from prison in February 1999.

Two appeals to the Court of Appeal, in 1994 and 1999, were largely unsuccessful (the 1994 appeal did result in three of Ellis’ convictions being set aside after one complainant recanted their evidence). Petitions to the Governor-General were submitted, one of which led to the second appeal, and another that led to a ministerial inquiry in 2000.

Former Chief Justice Sir Thomas Eichelbaum conducted that inquiry, eventually concluding the convictions were not unsafe. Two petitions to Parliament were also submitted and in 2005, the Justice and Electoral Select Committee declined to establish a royal commission of inquiry.

I had looked at Ellis’ case with a sense of despair. Had it ever seeped in, I ask Harrison? His puzzled, curious response – “It’s an unusual question that you ask me. Why is that?” – is so off-putting it takes me a moment to notice the upward inflection in his voice. Feebly, and perhaps too honestly, I fess up to my glass-half-empty outlook on life. A hearty chuckle travels down the phone line, followed by that quintessential antipodean turn of phrase, “Yeah, no.” It’s clear despair isn’t in Harrison’s vocabulary.

“We walked into trial thinking we had a really good chance, that we had good evidence. What we didn’t have was an appropriate expert. But, as events have subsequently shown, the Crown had an expert but not an appropriate one either,” he says. “So sorry, mate, despair just throws me. I like to think I never thought I was wandering around with despair written across my face.”

Much has happened in the past 30 years. The former Soviet Union was on the brink of formally breaking up when Christchurch police advised no allegations against Ellis had been made in December 1991. By the first appeal in 1994, South Africa had held its first election post-apartheid. Five years later, the Euro was the EU’s new common currency. The noughties had 9/11, the iPhone, the Great Recession and the first Black president of the United States. In the 2010s, the first reality TV star commander-in-chief succeeded Barack Obama, Brexit happened and superhero movies surged at the box office. By the end of 2019, the first known human case of covid-19 was documented.

Having appeared in the 1994 appeal as second counsel behind first Nigel Hampton KC, then Graham Pankhurst KC, Harrison ceased being involved when the retainer was passed on to Judith Ablett-Kerr KC. Other than filing affidavits in support of the petitions, his contact with Ellis dwindled over the intervening years although he kept in touch with Ellis’ supporters, including Lynley Hood, whose book A City Possessed analysed his case. Harrison came back onboard in 2019 to lead the Supreme Court appeal.

In that time, the wheels of justice have turned ever-so[1]slowly. Surely that has been dispiriting, but Harrison disagrees again. Despair has never taken root. Rather, he’s felt “extreme disappointment and extreme mistrust or anger” that what was “blindingly obvious” to most of the country could be “dismissed by legalese”, he says. Of course, difficult cases always arise in the criminal justice system. “My point about Peter’s case was that it shouldn’t have been difficult.”

Tikanga

Ellis knew he was on borrowed time as he attempted his third appeal; his advanced bladder cancer had become terminal in 2019. By mid-year, the Supreme Court granted him leave to appeal on the question of whether a miscarriage of justice had occurred. In September, as Harrison described it, Ellis “slipped away peacefully”.

At common law, an appeal typically ends upon the appellant’s death if no application for continuance has been made. After it became clear Ellis would likely die before the November hearing date, he asked the court to keep his proceedings on foot. Ellis’ brother, as the executor of his estate, made a similar request, either in his own name as Ellis’ representative or in his late brother’s name.

As Justice Susan Glazebrook acknowledged in the continuance judgment, successful applications are rare because finality is a prized principle in the criminal justice system. Nonetheless, in November 2019, two months after Ellis’ death, the court heard argument on whether allowing the appeal was “in the interests of justice”, as per the test set down by the Supreme Court of Canada in R v Smith.

The continuance decision might have ended on that narrow point of law but for the court asking whether tikanga Māori might govern the issue. A second continuance hearing was held in June 2020. Harrison admits he hadn’t thought about the relevance of tikanga – something the Crown hadn’t contemplated either, based on the November 2019 hearing transcript. But through the subsequent involvement of Kahui Legal’s Natalie Coates and Bankside Chambers barrister Kingi Snelgar, who drafted the bulk of the defence’s tikanga submissions, Harrison learned how much the “first law of Aotearoa and its values” can offer New Zealand’s Anglo common law.

While the Crown and the defence shared common ground in recognising tikanga is a source of New Zealand’s common law, the parties differed on how it applied to Ellis’ case. The defence argued that everyone – Māori and non-Māori – has mana, and that death doesn’t close the door on a court redressing a “hara”, or wrong, especially one which judges have already “probed” by granting leave.

The Crown argued the court should “close the door” and revoke the grant of leave. Revocation would restore ea, or bring finality, to the case, which the grant of leave had disturbed. Te Hunga Rōia Māori, as intervener, argued “cautiously” that tikanga supported continuance.

An evolution

Having seen and worked with Ellis’ family over the past three years, Harrison has seen the wider impact of that hara. According to the panel of experts the parties relied on to determine what tikanga said about Ellis’ case, Māori custom dictates that disputes are not affected by the death of an accused or a complainant. Rather, the alleged wrong – either the sexual offending or the conviction of an innocent man, both of which have an impact on all parties’ mana – still lives.

The existence of a hara signifies an imbalanced world, the panel said. As far as it’s possible, reaching a state of “ea” is necessary to restore equilibrium for Ellis and the complainants, their whānau and loved ones. That responsibility is passed onto those still living; sometimes it’s inherited by each successive generation until it’s fulfilled.

The burden carries on, Harrison says. “I think everyone in New Zealand would understand that. But tikanga says ‘resolve it, it’s important’ and that, to my way of thinking, is a hugely significant point. If nothing else, that one issue just tells us how much there is possibly available to us with tikanga as we move forward.”

All five judges were unanimous in their jurisdiction to decide continuance applications in the event of an appellant’s death and where leave has already been granted. The court was unanimous that the interests of justice is the governing test and that tikanga has been and will continue to be a key thread in the weaving of New Zealand’s common law in relevant cases.

However, the court split on the result and the general place of tikanga in the law. The majority of Chief Justice Helen Winkelmann, Justice Glazebrook and Justice Joe Williams allowed the appeal to continue. While they were conscious of the high level of stress and public scrutiny the complainants and their whānau had already suffered for so long, the appeal grounds were strong and raised systemic issues, including that convictions should follow only from fair trials. Tikanga principles helped strengthen their view that the appeal should continue.

Justices Mark O’Regan and Terence Arnold wouldn’t have allowed continuance as the interests of the complainants and their whānau outweighed all other factors. While they accepted death didn’t necessarily close the door, the proceeding should have been brought to an end by prohibiting continuance.

Harrison sees the decision as an overdue evolution of New Zealand’s legal system. “Believe me, I come from the gentle south. Many a person has raised the issue with me and I haven’t yet found any coherent argument that would dissuade me from the fact that the evolution of our law, and us as a people, is enhanced by this decision.”

Hallmarks

Three years ago, when Harrison returned to Ellis’ case, someone asked if it felt like a full-circle moment. The barrister, who describes himself as the man who lost Ellis’ case the first time, hoped history wouldn’t repeat “because full circle would be losing it again”. He adds: “It was one of those cases that had all the hallmarks of everything that could possibly go wrong and ultimately ended up with a decision of all things that could possibly go right.”

Even while waiting for the Supreme Court’s judgment, Harrison never let himself hope for the outcome the defence had sought all along – history, after all, had repeatedly told him the system had failed. But he did let himself hope in one respect: the Supreme Court appeal was the first time he felt all matters had been fully aired before a judicial body. That was a fantastic result, he says.

I cheekily attempt my hypothesis again: not letting himself hope sounds like either giving into hopelessness or simply preparing yourself for all outcomes. His laugh may be a relief, but he doesn’t budge. “Despair is crawling off into the corner, rolling yourself into a ball and sucking your thumb or whatever. I’ve never felt that – you couldn’t do three years on the appeal from a position of despair,” he says. “Seriously, I’m starting to get worried about you, mate. This despair issue is concerning me. What’s been happening?

I realise that very question typifies Harrison – a barrister who cares, who believes in the inherent good of people and who never gives in. And a colleague, Nick Chisnall KC, is grateful the profession has someone like Harrison among its ranks, an advocate who can stay the course. “He’s someone who deserves rich praise for his fortitude and resilience and the quiet and dignified way in which he did it. He’s a leader of the Bar – there’s no doubt about it,” Chisnall says.

In the face of upheaval, people with fortitude and resilience come to the fore. People in the 20th century, like Harrison’s grandparents, lived through two world wars, an influenza epidemic and an economic depression. They hung in there, he says. “If you’re starting to despair, then sit back and think about what exactly happened at Eden Park when those Black Ferns walked on to the pitch?” ■