Ellis v R

[2020] NZSC 89

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF WITNESSES UNDER 17 YEARS OF AGE PROHIBITED BY S 139A OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 49/2019
 [2020] NZSC 89

BETWEEN	PETER HUGH MCGREGOR ELLIS Appellant
AND	THE QUEEN Respondent

Hearings:	14 November 2019 25 June 2020
Court:	Winkelmann CJ, Glazebrook, O’Regan, Williams and Arnold JJ
Counsel: (14 November 2019) Counsel: (25 June 2020)	R A Harrison, S J Gray and B L Irvine for Appellant U R Jagose QC, K S Grau and A D H Colley for Respondent R A Harrison, N R Coates, K D W Snelgar and S J Gray for Appellant U R Jagose QC, J R Gough, K S Grau and A D H Colley for Respondent M K Mahuika and H K Irwin-Easthope for Te Hunga Rōia Māori o Aotearoa as Intervener
Judgment:	1 September 2020

JUDGMENT OF THE COURT

The appeal is to continue despite the death of the appellant.

____________________________________________________________________

REASONS

Introduction

1. Mr Ellis was convicted, after a trial in the High Court in Christchurch in 1993, of a number of counts of sexual offending against seven child complainants.[1]  He applied to this Court for leave to appeal against the decision of the Court of Appeal dismissing his appeal against conviction.[2]  He also applied for an extension of time to make the application. 

   [1]Mr Ellis was acquitted on a further nine charges.  He was also discharged on three charges during the trial under s 347 of the Crimes Act 1961. 

   [2]R v Ellis (1999) 17 CRNZ 411 (CA) (Richardson P, Gault, Henry, Thomas and Tipping JJ).  This was Mr Ellis’ second appeal.  His first had also largely been dismissed: R v Ellis (1994) 12 CRNZ 172 (CA) (Cooke P, Casey and Gault JJ).

2. On 31 July 2019, this Court granted the application for an extension of time and also granted leave to appeal.[3]  As is the Court’s practice, reasons were not given for granting the application for leave to appeal but brief reasons were given with regard to the extension of time.[4]

   [3]Ellis v R [2019] NZSC 83 (Glazebrook, O’Regan and Williams JJ).

   [4]The reason for the Court’s practice of not giving reasons for granting applications for leave to appeal is that leave is decided at a preliminary stage and full arguments will be made and dealt with on appeal: see Greymouth Gas Kaimiro Ltd v GXL Royalties Ltd [2010] NZSC 30 at [1]. The Court is required to give reasons when declining leave to appeal: Senior Courts Act 2016, s 77.

3. On 4 September 2019, Mr Ellis passed away.  This raised the issue of whether the appeal should continue despite his death.  The Court heard argument on this issue on 14 November 2019 and 25 June 2020.  The second hearing addressed the relevance of tikanga to the issue of continuation of the appeal.

Decision

1. The Court has decided that the appeal is to continue despite the death of the appellant. 

2. Reasons for this decision will be provided at the same time as our judgment on the substantive appeal.  These reasons will deal with the issues raised at both of the hearings on continuation.

1. The Registry will contact the parties within the next two weeks to set up a telephone conference with Glazebrook J to discuss the management of the appeal.

Solicitors:

Crown Law Office, Wellington for Respondent
Kāhui Legal and Whāia Legal for Intervener