While we are all digesting the Supreme Court quashing Peter Ellis' convictions, and pondering the pain and suffering of the Ellis family; and that of the children and their families caught up in the whole tragic saga of the Christchurch Civic Creche, last week the Supreme Court also issued a ground breaking decision on the place and application of tikanga Māori in our common law - Ellis v R [2022] NZSC 114.
The point at issue before the court was whether or not to allow Peter Ellis' appeal against conviction to continue following his death from cancer in 2019. The court had already granted a continuation; the decision provided reasons for that decision and was intentionally issued at the same time as the court's decision on Mr Ellis' appeal.
Mr Ellis had already been granted an extension allowing his appeal against conviction. He died before that appeal could be heard, raising the question of whether or not the appeal could continue after his death.
The parties had accepted that the court had jurisdiction to decide the issue of continuance; where they differed was in how that discretion should be exercised. There was no direct common law or legislative provision dealing with the issue, leaving the Court with the question of how to apply its discretion under the test of "ends of justice" in Rule 5(2) of the Supreme Court Rules 2004. Some guidance was provided by the Canadian decision of Smith v R, which laid out a number of narrow factors to be weighed up when considering continuance. In that case, the appellant had been convicted of murder, and had then died before his appeal could be heard. Significantly, in the Ellis case, the "victims" of the crimes for which Mr Ellis had been convicted were still alive and had also suffered in the intervening years.
In the course of the initial hearing before the Supreme Court, it was suggested that tikanga Māori might assist the court in exercising its discretion, notwithstanding that neither Mr Ellis nor the complainants claimed any Māori whakapapa.
Counsel for Mr Ellis and the Crown (and the Māori Law Society as interveners) accepted that tikanga might relevant, and agreed to establish a wānanga (a meeting) of mātanga (experts) in tikanga Māori (customary lore) to provide guidance on the application of tikanga to the case at hand. This resulted in a Statement of Tikanga, drafted by Sir Hirini Moko Mead and Professor Tou Temara, which outlined accepted principles of tikanga, to assist the Court.
In the event, Justices Glazebrook, Winkelmann and Williams granted the continuance, with Justices O'Regan and Arnold dissenting.
On the issue of tikanga, Justices Glazebrook, O'Regan and Arnold favoured applying with common law test in Smith, with Justice Glazebrook adding a gloss of tikanga to that test. Justices O'Regan and Arnold differed from Justice Glazebrook in two critical points - (1) the issue of whether or not tikanga was actually relevant to the issue of continuance was not fully argued (both parties accepting that tikanga was relevant); and (2) they placed greater weight on the impact of a continuance on the victims, and less on the impact of the convictions of the now deceased Mr Ellis.
All five justices accepted that tikanga is relevant to the common law. It is how that relevance is applied which differed.
Most telling is the approach taken by the Chief Justice. In her general remarks, she observed that it had taken over 100 years for the courts to acknowledge the importance of tikanga Māori as the first law of Aotearoa New Zealand, and that its place is not secondary to the colonial common law, but forms part of our common law. The Chief Justice then proceeded to formulate her own wider test for granting continuance, based on practicality and tikanga principles to inform the test of "ends of justice" in Rule 5(2).
The judgment provides a fascinating study of the different approaches to the application of tikanga. On the one hand, the minority remains unconvinced at how tikanga principles were introduced in the case and at their application; Justice Glazebrook adopted the conservative, common law approach in Smith and adds a tikanga lens to the test; the Chief Justice reformulates the test in accordance with Aotearoa New Zealand common law principles, as refined to the local environment by the application of tikanga; and Justice Williams concurs with Justice Winkelmann, but urges caution on how tikanga is to be identified and how it is to be identified and applied.
While the judgment deals with a very narrow circumstance, which is unlikely to occur often (if at all), the attempt by the Supreme Court to provide guidance on the place of tikanga in our common law, its application and the potential impact on tikanga itself, is important and will undoubtedly be significant. The Justices' words of caution on the future application of tikanga should also be noted.
Despite the division between the judgments, it was heartening to read each of the Justices acknowledging the impact of continuing the appeal on the children at the centre of the allegations.