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 O AOTEAROA
SC 49/2019 [2022] NZSC 114
BETWEEN
PETER HUGH MCGREGOR ELLIS Appellant
AND
THE KING 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 KC, 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 KC, 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 | The Māori Law Society as Intervener
Judgment:
1 September 2020
Reasons:
7 October 2022
JUDGMENT OF THE COURT
The application for the continuation of the appeal despite the death of the appellant is granted.
Mr Ellis was convicted of sexual offending against seven complainants in 1993. Two appeals to the Court of Appeal (in 1994 and 1999) were unsuccessful.[1]On 31 July 2019, this Court granted leave to appeal against the Court of Appeal decisions as well as an extension of time to do so. Mr Ellis died on 4 September 2019 before the appeal could be heard.
The Court held two hearings to determine whether the appeal should continue despite his death: one on 14 November 2019 and one on 25 June 2020. The June hearing concerned the relevance of tikanga Māori to the issue of the continuation of the appeal.
On 1 September 2020, this Court issued a results judgment allowing the appeal to continue. These are the Court’s reasons for allowing the continuation of the appeal.[2]
A judgment issued contemporaneously contains the Court’s decision in relation to Mr Ellis’ appeal against conviction.[3]
Continuation of the appeal
The test
The Court accepts that there is jurisdiction to allow an appeal to continue in the event of the death of an appellant in the circumstances of this case (where leave to appeal has already been granted).[4]
The Court decides unanimously that an appeal will abate on the death of an appellant if there is no application for continuance.[5] While there is no presumption against continuance, it will only be granted where there is good reason to allow the appeal to proceed to determination.[6]
The Court holds unanimously that the appropriate test for deciding whether the discretion to allow an appeal to continue despite the death of the appellant is whether…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Ellis v R [2022] NZSC 114
Case
[2022] NZSC 114
Decision Date
CaseChat Overview and Summary
In Ellis v R, the Supreme Court of New Zealand considered whether the appeal of Peter McGregor Ellis, who had died before the appeal could be heard, should proceed. Ellis had been convicted of sexual offences against seven complainants in 1993. Two previous appeals to the Court of Appeal were unsuccessful, and a Ministerial inquiry in 2001 also upheld the convictions. The Supreme Court granted leave to appeal and an extension of time in 2019, but Ellis died before the appeal could be heard. The Court held two hearings to determine whether the appeal should continue posthumously. The Court unanimously decided that an appeal will abate on the death of an appellant if there is no application for continuance. However, the Court also held that it has jurisdiction to allow an appeal to continue despite the death of the appellant where leave to appeal has already been granted. The Court determined that the appropriate test for deciding whether the discretion to allow an appeal to continue despite the death of the appellant is whether this would be in the interests of justice. The Court held that the relevant factors to be weighed in determining whether it is in the interests of justice to continue an appeal despite the death of an appellant are: (a) whether the appeal will proceed in a proper adversarial context; (b) the strength of the grounds of the appeal; (c) the wishes of the appellant and the family of the appellant, and the reputational issues affecting the appellant and their family; (d) the interests of any victims and their families; (e) any public or private interest in the continuation of the appeal, including a legal issue of general public importance, a systemic issue related to the administration of justice, or collateral consequences to the family of the deceased or to other interested persons or to the public; (f) whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial resources to resolve a moot appeal; and (g) whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself. The Court, by majority, exercised its discretion to allow Ellis' appeal to continue despite his death, considering the very high level of stress and public scrutiny already suffered by the complainants and their whānau, the additional stress that will be occasioned by the hearing of the appeal, the strength of the grounds of appeal, and the broader public interest in ensuring convictions only follow from fair trials. The Court decided that the appeal is to continue in Ellis' own name. In the majority view, the colonial tests for incorporation of tikanga in the common law should no longer apply. Rather, the relationship between tikanga and the common law will evolve contextually and as required on a case by case basis. Tikanga has been and will continue to be recognised in the development of the common law of Aotearoa/New Zealand in cases where it is relevant. Tikanga forms part of New Zealand law as a result of being incorporated into statutes and regulations. It may be a relevant consideration in the exercise of discretions and is incorporated in the policies and processes of public bodies.