Ellis v R
[2022] NZSC 114
•1 September 2020
| 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 |
| AND | THE KING |
| Hearings: | 14 November 2019 |
Court: | Winkelmann CJ, Glazebrook, O’Regan, Williams and Arnold JJ |
| Counsel: | R A Harrison, S J Gray and B L Irvine for Appellant |
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.
____________________________________________________________________
REASONS
| Para No. | |
| Summary of Reasons | [1] |
| Glazebrook J | [24] |
| Winkelmann CJ | [149] |
| Williams J | [231] |
| O’Regan and Arnold JJ | [275] |
SUMMARY OF REASONS
(Given by the Court)
Background
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 this would be in the interests of justice.[7]
The Court (by majority of Glazebrook, O’Regan and Arnold JJ) holds that the factors relevant to the consideration of whether it is in the interests of justice for an appeal to continue are:[8]
(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 (an important factor);
(e)any public or private interest in the continuation of the appeal, including:
(i)a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
(ii)a systemic issue related to the administration of justice;
(iii)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 (or court) 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.
Glazebrook, O’Regan and Arnold JJ note that these factors are non-exhaustive and other factors may be relevant to the overall interests of justice test, depending on the particular circumstances. The weight accorded to the factors will depend on the circumstances of the particular case.[9]
Winkelmann CJ and Williams J prefer a framework for deciding whether it is in the interests of justice for an appeal to continue that weighs practical considerations, the interest of finality in litigation and the personal and public interest in addressing a potential miscarriage of justice through the appellate process. Tikanga considerations are folded into that framework.[10]
While Glazebrook, O’Regan and Arnold JJ consider tikanga concepts may be relevant, they do not consider that this necessitates a modification of the test set out above at [8].[11]
Decision on continuation of the appeal
The Court, by majority of Winkelmann CJ, Glazebrook and Williams JJ (the majority judges), has exercised its discretion to allow Mr Ellis’ appeal to continue despite his death.[12] Both Winkelmann CJ and Williams J apply their framework referred to at [10] above and further say that they would have come to the same conclusion on the continuation of the appeal applying the test set out above at [8].[13]
In coming to their decision, the majority judges were conscious of the very high level of stress and public scrutiny already suffered by the complainants and their whānau over such a long period, including that occasioned by two appeals and a Ministerial inquiry.[14] They were also very conscious of the additional stress that will be occasioned by the hearing of the appeal in this Court.
The majority judges consider, however, that public interest factors in this case mean that it is in the interests of justice to allow the appeal to proceed. In their view, the grounds of appeal are strong and raise systemic issues.[15] There is also a broader public interest in ensuring convictions only follow from fair trials.[16] There has also been long running public concern about the possibility of a miscarriage of justice in this case.[17]
The majority judges comment that, given the intense public interest in this case and the fact this Court has already granted leave to appeal, it is unlikely that not allowing the appeal to continue would in fact have meant finality for the complainants. Public scrutiny would have continued.[18]
The majority judges decided that the appeal is to continue in Mr Ellis’ own name.[19]
O’Regan and Arnold JJ are of the view that the Court should not exercise the discretion to allow the appeal to continue.[20] They consider that the interests of the complainants and their whānau outweigh all the other factors in this case.[21] They also see the public interest factors as having less value than attributed to them by the majority judges, especially given the legislative changes that have occurred since Mr Ellis’ trial took place.[22]
Tikanga
The reasons of the Court also deal with the place of tikanga in the law of Aotearoa/New Zealand more generally.
The Court is unanimous that 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.[23] It also forms part of New Zealand law as a result of being incorporated into statutes and regulations.[24] It may be a relevant consideration in the exercise of discretions and it is incorporated in the policies and processes of public bodies.[25]
O’Regan and Arnold JJ do not consider this a suitable case for the Court to make any pronouncements of a general nature about the place of tikanga in the law of Aotearoa/New Zealand, apart from the points set out at [19] above.[26]
The Court (by majority of Winkelmann CJ, Glazebrook and Williams JJ) holds that the colonial tests for incorporation of tikanga in the common law should no longer apply.[27] Rather the relationship between tikanga and the common law will evolve contextually and as required on a case by case basis.[28]
The majority judges accept that tikanga was the first law of Aotearoa/New Zealand and that it continues to shape and regulate the lives of Māori.[29] In light of this, the courts must not exceed their function when engaging with tikanga.[30] Care must be taken not to impair the operation of tikanga as a system of law and custom in its own right.[31]
The majority judges comment that the appropriate method of ascertaining tikanga (where it is relevant) will depend on the circumstances of the particular case.[32]
GLAZEBROOK J
Table of Contents
| Para No. | |
| Introduction | [24] |
| Relevant procedural history | [27] |
| Extension of time and leave | [27] |
| Preparation for appeal | [31] |
| Continuation despite death | [32] |
| Propensity evidence | [40] |
| Structure of judgment | [41] |
| Submissions at November 2019 hearing | [44] |
| Submissions for Mr Ellis | [45] |
| Submissions for the Crown | [46] |
| Assessment (November 2019 hearing) | [48] |
| Discretion to allow the appeal to continue | [48] |
| Preliminary comment | [60] |
| Whether the appeal will proceed in a proper adversarial context | [61] |
| Strength of the grounds of appeal | [63] |
| Interests of the appellant | [67] |
| Interests of the victims | [68] |
| Any public or private interest in the continuation of the appeal | [70] |
| Whether the nature of any order justifies expending judicial resources | |
| [72] | |
| Whether the Court would be moving outside its normal judicial role | |
| [75] | |
| Conclusion (November 2019 hearing) | [76] |
| June 2020 hearing | [80] |
| Statement of Tikanga | [85] |
| Submissions of the parties about tikanga and the common law | [86] |
| Appellant’s submissions on tikanga and the common law | [86] |
| Crown’s submissions on tikanga and the common law | [88] |
| Intervener’s submissions on tikanga and the common law | [90] |
| Caselaw and tikanga | [92] |
| Colonial recognition of customary law | [93] |
| Modern recognition of tikanga | [94] |
| Legislation and tikanga | [98] |
| Policy and tikanga | [103] |
| The place of tikanga | [106] |
| Tikanga and the common law | [107] |
| Separate or third source of law | [111] |
| Test for incorporation | [112] |
| When and how tikanga will need to be considered | [117] |
| Process of ascertaining tikanga | [120] |
| Concluding remarks | [126] |
| Tikanga and this case | [128] |
| Submissions on tikanga in this case | [136] |
| Submissions for Mr Ellis | [136] |
| Submissions for the Crown | [138] |
| Submissions for the intervener | [140] |
| Effect of tikanga on the test for continuance | [142] |
| Application to this case | [146] |
| Result | [148] |
Introduction
In 1993, Mr Ellis was convicted of 16 counts of sexual offending against seven complainants.[33] The complainants attended the Christchurch Civic Childcare Centre where Mr Ellis worked. He was sentenced to ten years’ imprisonment.[34] An appeal against conviction in 1994 was largely unsuccessful.[35] After a reference by the Governor‑General pursuant to s 406(a) of the Crimes Act 1961 (now repealed), the Court of Appeal in 1999 dismissed Mr Ellis’ second appeal against conviction.[36] A further s 406 application resulted in a Ministerial inquiry in 2001 by Sir Thomas Eichelbaum, which concluded that Mr Ellis’ convictions were not unsafe.[37]
On 5 June 2019, Mr Ellis filed an application for an extension of time to apply for leave to appeal to this Court and an application for leave to appeal against the 1994 and 1999 Court of Appeal decisions. On 31 July 2019, this Court granted both applications.[38] This means the Court considered that the appeal grounds were strong enough and had sufficient prospect of success to overcome the long delay in seeking leave. This conclusion was reached against the background of the two appeals to the Court of Appeal and the Ministerial inquiry.[39]
Mr Ellis died on 4 September 2019 before the appeal could be heard. This Court determined that the appeal should proceed despite his death.[40] We indicated in that judgment that reasons would be given at the same time as the judgment on the substantive appeal and that the reasons would deal with the issues raised at both of the hearings on continuation.[41] These are my reasons for allowing the continuation of the appeal.
Relevant procedural history
Extension of time and leave
Mr Ellis’ proposed grounds of appeal when applying for leave were:
(a)the evidential interviews of the complainants fell far short of best practice (even at the time);
(b)there was a strong possibility of contamination of the evidence;
(c)the jury was not appropriately assisted at trial by the expert witnesses;[42] and
(d)unreliable expert evidence was led under s 23G of the Evidence Act 1908 (now repealed).[43]
In support of his application for leave, Mr Ellis filed two affidavits, one from Professor Harlene Hayne (dealing with the evidential interviews) and one from Dr Thelma Patterson (dealing with the reliability of the expert evidence given at trial).
Professor Hayne deposed that the jury was not made sufficiently aware of the factors which might have affected the reliability of the children’s evidence, including the potential for contamination prior to the evidential interviews, suggestive interviewing practices and the delay in reporting. Dr Patterson deposed that the behavioural symptoms discussed at trial had no probative bearing on the likelihood that the children were abused and should not have been led.
As noted above, this Court granted Mr Ellis’ application for leave on 31 July 2019 and also granted him an extension of time to apply for leave to appeal.[44] As is the usual practice of this Court, no reasons were given for the decision on leave to appeal. This is because leave is decided at a preliminary stage and full arguments are made and dealt with on appeal.[45] Reasons were given for the extension of time decision. The Court said:[46]
[15] We give brief reasons for granting Mr Ellis’ application for an extension of time to apply for leave to appeal. The touchstone will always be the interests of justice. Relevant factors to be taken into account include whether the delay is adequately explained and whether there are compelling reasons to extend time. In considering whether to grant the application, the Court may have regard to the seriousness of the charges, the strength of the proposed appeal, the impact on others and prejudice to the Crown. Also relevant is whether fresh evidence has come to light.
[16] On the basis of the supplementary affidavit of Professor Hayne, we are satisfied that the research underpinning her evidence was only very recently completed and that the type of empirical analysis of the evidential interviews that she has conducted is a new approach and significantly different from the expert evidence available to the Court of Appeal in 1999. We are also satisfied that her analysis could not have been completed earlier than it was, both because of the magnitude of the task and the availability of comparative data.
[17] In our view the affidavits of Professor Hayne and Dr Patterson raise issues of general and public importance and significant issues specific to Mr Ellis’ case. The interest of justice requires that these issues be ventilated on appeal, despite the length of time since the second Court of Appeal decision.
[18] For these reasons, we consider an extension of time for leave to appeal should be granted. …
Preparation for appeal
Before leave was granted, counsel had advised this Court that Mr Ellis had been diagnosed with terminal cancer and asked, if leave were granted, for the hearing of the appeal to proceed as a priority. After leave was granted the hearing of the appeal was accordingly set down for 11 November 2019. However, Mr Ellis died on 4 September 2019 before any evidence or submissions were filed.
Continuation despite death
After it became clear that Mr Ellis would be unlikely to survive until the hearing date, he filed an affidavit asking this Court to allow the proceedings to continue in the event of his death. Soon after Mr Ellis’ death, his brother (the executor of his estate) filed an affidavit asking that the appeal proceed either in Mr Ellis’ name or in his own name as Mr Ellis’ personal representative.
This Court began hearing submissions on whether the appeal should proceed despite Mr Ellis’ death on 14 November 2019. At that hearing, the Court raised the issue of the relevance of tikanga to the question of continuance. The hearing was therefore adjourned to allow counsel to prepare further submissions on this issue.
By way of minute dated 15 November 2019, the Court directed that submissions cover:
(a)whether tikanga might be relevant to any aspect of the Court's decision on whether the appeal should continue;
(b)if so, which aspects of tikanga; and
(c)assuming tikanga is relevant, how tikanga should be taken into account.
Counsel for the parties conferred and agreed to convene a wānanga with tikanga experts to discuss the issues in the Court’s minute. This was a process agreed between the parties and not one ordered by the Court.
The experts chosen by the parties for the wānanga had no connection to Mr Ellis or the complainants or to their respective whānau. They were simply invited to express independent expert views on the issues identified. The wānanga took place on 10 and 11 December 2019.
An agreed statement of facts pursuant to s 9 of the Evidence Act 2006 was filed following the wānanga. Appended to it was a statement of tikanga (the Statement of Tikanga) written by Sir Hirini Moko Mead and Sir Pou Temara.[47] All of the tikanga experts who attended the wānanga supported that statement.[48] The Statement of Tikanga does not just cover the questions set out in the Court’s minute related to this particular appeal but it also sets out a more general discussion of tikanga and its place in New Zealand law.[49]
With the consent of the parties, Te Hunga Rōia Māori o Aotearoa | The Māori Law Society was granted leave to intervene on 19 December 2019.[50]Representatives of Te Hunga Rōia Māori had been in attendance at the wānanga at various points over the two days to manaaki (care for) the tikanga experts and answer any legal questions.[51]
Submissions on tikanga were filed by the parties and the intervener, and the hearing was reconvened on 25 June 2020. At the resumed hearing, oral submissions were made on the relevance of tikanga in the law of New Zealand generally, as well as covering how tikanga applies to this appeal.
Propensity evidence
For completeness, I note that in October 2020 the Crown applied for leave to adduce propensity evidence pursuant to s 43 of the Evidence Act 2006. The proposed evidence constituted an affidavit from a deponent to the effect that she was sexually abused by the appellant in 1982 or 1983, along with other material that related to the alleged sexual abuse incident. Hearings on whether to admit the evidence took place on 11 November 2020 and 25 March 2021.[52] On 15 June 2021, this Court issued a results judgment dismissing the application.[53] On 1 July 2021, we provided reasons for that decision.[54]
Structure of reasons
Because of the bifurcated nature of the hearing and the submissions, I propose to deal first with the submissions made at the hearing of 14 November 2019.
I then move to a discussion of the place of tikanga in New Zealand law. This was dealt with in the Statement of Tikanga and the submissions of the parties as a necessary framework for the consideration of whether and, if so, how tikanga is relevant to the issue of whether an appeal should continue despite the death of an appellant.
The last part of these reasons considers how tikanga principles might affect the test that should be applied to decide applications to continue an appeal despite the death of an appellant and then applies the test to this case.
Submissions at November 2019 hearing
Both parties accepted that the Court has jurisdiction to proceed with the appeal. Rule 5(2) of the Supreme Court Rules 2004 provides the Court with discretion to dispose of a case where no form of procedure is prescribed, and where there are no rules affecting similar cases, “in the manner that the Court thinks best calculated to promote the ends of justice”. Both parties accepted that the factors set out by the Supreme Court of Canada in R v Smith provide a useful guide in the exercise of that discretion.[55]
Submissions for Mr Ellis
Counsel for Mr Ellis submitted that there were compelling reasons to proceed with the appeal. The fresh evidence filed in support of Mr Ellis’ application for leave meant the appeal has wider ramifications than simply resolving Mr Ellis’ case. It raises issues of public interest, including how to elicit children’s evidence appropriately, how to identify and manage the risk of children’s accounts becoming contaminated and the role of experts in assisting the fact-finder to assess the reliability of such evidence. Finally, counsel pointed to the large degree of public interest in Mr Ellis’ case.
Submissions for the Crown
The Crown acknowledged the Court's discretion can be exercised to continue a criminal appeal where the appellant has died but submitted that the general rule is that an appeal against conviction abates on the death of an appellant and that the discretion to continue should be used sparingly and in exceptional circumstances. Those circumstances, as submitted, include where an interested party can demonstrate a continuing pecuniary interest in the appeal being determined, where the appeal will lead to a final resolution, such as where there is a real likelihood of the Court being able to conclusively determine guilt or innocence, or where there is a legal issue of principle that transcends the instant appeal.
In the circumstances of this case, the Crown submitted the appeal should not be heard. It submits that the grounds of appeal are weak and that Mr Ellis’ challenges have been closely and repeatedly scrutinised by multiple courts. The Crown also noted that Mr Ellis’ estate has no pecuniary interest in the appeal which, in its submission, raises only issues specific to the facts of Mr Ellis’ case or issues that are of historic interest only. Further, the Crown submitted that, as this Court cannot conclusively determine Mr Ellis’ guilt, any potential result would not justify the expenditure of limited court resources, particularly in light of the fact that there have already been two appeals and a Ministerial inquiry. Finally, the Crown submitted that weight should be given to the significant delay on Mr Ellis’ part in bringing the final appeal and to the interests of the complainants and their families.[56]
Assessment (November 2019 hearing)
Discretion to allow the appeal to continue
I note first that these reasons only deal with the particular facts of this case: the continuation of an appeal where leave had been granted before the appellant died. The principles would likely also apply also to appeals as of right filed before an appellant died.[57] Against this background, I accept the submission of the parties that there is jurisdiction to continue an appeal despite the death of an appellant and that the overriding consideration in exercising the discretion to allow an appeal to continue is whether continuation is in the interests of justice.[58] This entails taking into account and weighing the interests of any victims and their families, the interests of the appellant and their family, the public interest and the effect on the criminal justice system as a whole. Where the appeal raises an issue that is one of principle or wider importance, that would be an important consideration.
As noted above, the parties agree that the decision of the Supreme Court of Canada in R v Smith provides helpful guidance to the exercise of the discretion. The general test postulated in that case was whether there are “special circumstances that make it ‘in the interests of justice’” to allow the continuation of an appeal.[59] The Court said that this question may be approached by reference to a non-exhaustive list of factors:[60]
1. whether the appeal will proceed in a proper adversarial context;
2. the strength of the grounds of the appeal;
3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including:
(a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
(b) a systemic issue related to the administration of justice;
(c) collateral consequences to the family of the deceased or to other interested persons or to the public;
4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal;
5. 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 Supreme Court of Canada said that the above factors and any other relevant factors are then weighed to determine whether, “notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed”.[61]
I agree that the factors set out by the Supreme Court of Canada in R v Smith provide a useful starting point. I would make two additions and one modification for the reasons explained below at [56].
I accept that appeals abate on death unless there is an application for continuance. Successful applications for continuance will be rare. This is because of the value in our criminal justice system of the principle of finality, especially for victims. I do not, however, consider it helpful to speak of a presumption against continuance or to impose a requirement for “special circumstances” when considering continuance applications. It suffices to say that there must be very good reason for it to be in the interests of justice for an appeal to continue despite the death of the appellant.
I do not apprehend that the courts will be overwhelmed by such applications. The appellants who die before their appeal is heard will not be numerous and not all families or executors will be interested in pursuing the appeal. The weighing of the factors themselves, against the background of the value of finality, will also limit the number of appeals that then proceed. Indeed, some of the factors on their own would likely mean that the appeal will not proceed: for example, an application for continuance would almost certainly fail where the grounds of appeal are weak or where the appeal could not proceed in a proper adversarial context.
I do not accept the Crown submission that it is only pecuniary or other private law interests of surviving family members that are relevant.[62] A person is still part of a family even if deceased. Feelings for that person transcend death and there are continuing reputational issues that will affect the whole family.[63] These wider interests of the surviving family members are therefore also relevant, although not decisive. I also consider the wishes and interests of the deceased appellant to be relevant but again, not decisive.
In addition, while the ability to determine guilt or innocence conclusively would be a factor in deciding whether an appeal should continue, I do not think it should be controlling. The justice system as a whole has an interest in ensuring defendants are only convicted after fair trials. This interest remains even if a defendant is deceased and should be weighed as a relevant factor. In any event, it would likely be relatively rare for an appeal to lead to a conclusive determination of guilt or innocence. And of course, the strength of the grounds of appeal will be relevant to a decision on whether or not an appeal should continue.
As to the R v Smith factors, I consider there should be two additions. First, I consider that the interests of any victims and their families are important in any balancing exercise regarding the continuation of a criminal appeal and should be explicitly included as a separate factor. Second, it follows from the discussion above that the wishes of the deceased appellant and reputational issues affecting that person and their families are also relevant factors to be weighed.[64] These two additions necessitate a change to the first part of the third R vSmith factor from “whether there are special circumstances that transcend the death of the individual appellant/respondent” to “any public or private interest in the continuation of the appeal”.
Accordingly, the factors I consider are relevant to the consideration of 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 (an important factor);
(e)any public or private interest in the continuation of the appeal, including:
(i)a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;
(ii)a systemic issue related to the administration of justice;
(iii)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 (or court) 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.
These factors are non-exhaustive and other factors may be relevant to the overall interests of justice test, depending on the particular circumstances. I also note that the weight accorded to the factors will depend on the circumstances of the particular case.
Before examining the factors in this case, I make one preliminary comment.
Preliminary comment
As an overarching point, it is significant that this Court has already granted both an extension of time to apply for leave to appeal and leave to appeal in this case. As noted,[65] this means that the Court has already decided that the appeal grounds were strong enough and had sufficient prospects of success to overcome the fact of the long delay in seeking leave. The issue in this case therefore is whether the death of Mr Ellis changes the balance that was struck in the original decision to grant an extension of time and leave to appeal.
Whether the appeal will proceed in a proper adversarial context
Mr Ellis had given instructions on the conduct of his appeal before his death and preparations for the appeal hearing were underway. The grounds of appeal mean that the focus of the hearing will be on the expert evidence and the submissions on that expert evidence. I am satisfied therefore that the appeal will proceed in a proper adversarial context.
I note the view of the Supreme Court of Canada that “[t]he substitution of a live appellant is important to the retention of jurisdiction” to continue an appeal despite the death of the original appellant.[66] I do not consider it is necessary to make any substitution. If an application for continuing an appeal is granted, it would continue in the name of the deceased appellant: in this case Mr Ellis.
Strength of the grounds of appeal
I do not accept the Crown submission that the grounds of appeal are weak. Leave to appeal would not have been granted had that been the case and particularly after such a long delay. I am cognisant that the Crown has since filed evidence that challenges some aspects of the evidence filed on behalf of Mr Ellis but it was known when granting leave that this would likely be the case.[67] The differences between the experts will be ventilated in the appeal hearing itself.
The Crown also points to the fact that there have been two appeals already and a Ministerial inquiry. It is true that new expert evidence was filed for the Court of Appeal hearing in 1999. It appears, however, that the Court saw its task as examining whether the new evidence filed raised significantly different issues from the evidence heard at trial.[68] It concluded that there was nothing in the new evidence to show that there “were serious flaws or problems which were unknown or unappreciated” at the time of trial.[69] It therefore concluded that the trial had been appropriately conducted, commenting that the Court was not a Commission of Inquiry.[70]
The Court of Appeal in 1999, because it saw its role as constrained by the terms of the reference back, did not grapple with the criticisms raised by the experts and the issues that were raised about the evidence heard at trial.[71] In addition, it was not one of the grounds before the Court of Appeal in 1999 whether the expert evidence led under s 23G of the Evidence Act 1908 fell within the scope of that section.[72] While the Court of Appeal in 1994 had engaged with that section, it did so in a brief and unsatisfactory manner.[73] We discuss this further in our judgment on the substantive appeal.
In any event, this Court accepted in its leave decision that the research underpinning Professor Hayne’s evidence was a new approach and significantly different from the expert evidence available to the Court of Appeal in 1999.[74]
Interests of the appellant
Mr Ellis expressed his wish that the proceedings continue despite his death. He was thinking not only of his own interests and reputation but also the impact of his convictions on his family. It is also significant that there were allegations that Mr Ellis’ mother, while not charged, was involved in some of the alleged offending. She had therefore been the subject of media attention. These are factors weighing in favour of the continuation of the appeal.
Interests of the victims
Criminal trials and the associated appeals are very stressful for the victims, however sensitively they are managed. The complainants in this case and their families have been subjected not only to the trial and the pre-trial processes leading up to the trial but also to two appeals and a Ministerial inquiry, as well as the current applications. There has also been an almost unprecedented amount of public scrutiny and interest from the media and other commentators. There is no doubt that this has exacerbated their stress to what must be an almost unbearable level.
Finality is a value of major importance to victims. That is especially so for the complainants in this case given its procedural history. There is no doubt that the interests of the complainants and their families must be given considerable weight. The balance between the interests of the complainants and their families and those of Mr Ellis and his family has changed. As a result of his death, the interests of the complainants and their families must now weigh much more heavily than those of Mr Ellis and his family.
Any public or private interest in the continuation of the appeal
The grounds of appeal in this case raise important issues relating to the proper role of expert witnesses, the effect of possible contamination of evidence, interviewing techniques (especially of children) and memory. These are issues of general and public importance and remain so despite the delay in bringing the appeal. They are also systemic issues. This is a strong factor weighing in favour of continuation.
There is one further factor that weighs in favour of continuation: the fact that there has been extensive public interest in the case over the years. Unease about the safety of the verdicts has been expressed on a number of occasions by a variety of commentators.
Whether the nature of any order justifies expending judicial resources
As noted above, the Crown submitted that, as this Court cannot conclusively determine Mr Ellis’ guilt, any potential result would not justify the expenditure of limited court resources. I do not agree. I note first that, if the appeal is successful on some of the grounds of appeal, a retrial would not have been ordered even if Mr Ellis had still been alive.[75] It is true that some of the other grounds of appeal relate to the particular manner in which the trial was conducted and may not have prevented a retrial being ordered had Mr Ellis been alive.
That a successful appeal may, had Mr Ellis been alive, have led to an order for a retrial is a relevant consideration but is not necessarily a reason that the appeal should not continue. Appellate review is a procedural safeguard which serves not only the private interests of the accused, but also the public interest in a justice system that is underpinned by the pursuit of truth and fairness. Public faith in the system could be undermined if, due to an appellant’s death, the courts are unable to correct potential miscarriages of justice, including those resulting from a serious failure of proper process.
Whether it is worth expending judicial resources on the continuation of a criminal appeal despite the death of an appellant will usually largely depend on the result of the balancing exercise with regard to the other relevant factors. As noted above, successful applications for continuing appeals will be rare. There must be good reason to meet the overall interests of justice test in a criminal justice system that puts a high value on finality.
Whether the Court would be moving outside its normal judicial role
The grounds of appeal are orthodox for a criminal appeal and there is thus no danger of the Court moving beyond its judicial function.
Conclusion (November 2019 hearing)
The issue before this Court is whether continuation of the appeal despite Mr Ellis’ death is in the interests of justice. Necessarily, Mr Ellis’ death affects the balancing of the various interests at play. While the reputational interests of Mr Ellis and his family continue despite his death, the interest of the complainants and their families in not being subjected to the stress of further proceedings and in obtaining finality must be accorded much greater weight. As noted above, I am very conscious that the level of public scrutiny, as well as the fact there have already been two appeals and an inquiry, has increased the stress on the complainants and their families exponentially. I am also very conscious that the hearing of the appeal will subject them to even more stress.
Unfortunately, given the intense public interest in the case and the fact that this Court had already granted leave to appeal despite the delay, it is unlikely that not allowing the appeal to continue would in fact mean finality for the complainants and their families. If the process ends without a final judgment of this Court on the substantive appeal, public debate would no doubt continue but such discussion would occur in a vacuum and on an uninformed and speculative basis. This weighs in favour of allowing the appeal to proceed.
Also to be weighed in the balance are the importance of the systemic issues that will be examined in the appeal, the strength of the grounds of appeal and the broader public interest in ensuring that convictions only follow from fair trials.
I have given this matter anxious consideration. In all the circumstances, I consider that it is in the interests of justice to allow the appeal to proceed. I reach this conclusion on the basis that, in the unusual circumstances of this case, the public interest considerations mean that it is in the interests of justice for the appeal to continue. The judgment on the appeal will bring finality in terms of legal proceedings.
June 2020 hearing
As noted above, the Court reconvened in June 2020 to hear argument on tikanga. It is true that the appeal concerns a Pākehā appellant and none of the complainants are Māori as far as we are aware. The principles developed on posthumous appeals must, however, be capable of meeting the needs of all New Zealanders, including Māori. Māori values in relation to the interests of tūpuna or ancestors are different from what are often termed Western values. Further, and more generally, a consideration of tikanga may provide valuable insights into the appropriate test to apply when courts are faced with an application to continue an appeal despite the death of an appellant.
The evidence and submissions the Court received covered not only the effect of tikanga on the application for the continuation of the appeal but also the general place of tikanga in the law of Aotearoa/New Zealand. This was appropriate because it provided a necessary framework for the consideration of whether and, if so, how tikanga applies in this case.
I also accept that the question of the place of tikanga in the law of Aotearoa/New Zealand is one of general importance and that these reasons will have relevance for future cases, including in other areas of law. The law relating to the place of tikanga in the common law is in a state of transition and it is a good time to take stock.
Before turning to the role of tikanga in this case, I will discuss the place of tikanga in New Zealand more generally. I will begin with the Statement of Tikanga and the submissions of the parties, before reviewing the caselaw relating to the place of tikanga in the common law and the place of tikanga in legislation and policy. I then make some further comments on tikanga and the common law and discuss some of the issues arising.
I thank the tikanga experts, the parties and the intervener for the very full and helpful material they have put before the Court on the general place of tikanga in the law of Aotearoa/New Zealand.
Statement of Tikanga
The culmination of the December 2019 wānanga was a brief series of agreed statements, entitled “Ngā Whakataunga a ngā Mātanga Tikanga i Hui i Te Herenga Waka Marae, i Te Upoko o Te Ika (Ngā Whakataunga a ngā Mātanga Tikanga)”. These relate to “the overall place of tikanga in Aotearoa; the intersection between tikanga and the state legal system; the nature of tikanga (and its associated principles); and the key tikanga principles relevant to this case”.[76] The nature of tikanga is discussed at [22] to [37] of the Statement of Tikanga. The statement of general principle relating to the overall place of tikanga in the common law is:[77]
Ngā Whakataunga a ngā Mātanga Tikanga
Me whakauru ngā mātāpono o te tikanga Māori ki roto i ngā ture o te whenua.
Tikanga Māori is the first law of Aotearoa.
Tikanga Māori principles are part of the common law of Aotearoa.
Decisions about mātāpono (principles) are always subject to variables such as concepts, practices, and values, as relevant to the circumstances.
Submissions of the parties about tikanga and the common law
Appellant’s submissions on tikanga and the common law
Counsel for the appellant argued that tikanga can inform the interpretation and development of the common law, assist in the interpretation of legislation and can influence and modify the common law. Sometimes it can and should be recognised as a source of enforceable rights and obligations. It can also be a source of public law rights and obligations. In the appellant’s submission, the Treaty of Waitangi requires that the common law, where possible, be developed to recognise and accommodate tikanga.
It was also submitted that tikanga is part of the fabric of the law of Aotearoa/New Zealand and can apply to non-Māori. Counsel referred to examples in the early colonial caselaw which involved Pākehā parties,[78] and also examples in statutes, such as the Oranga Tamariki Act 1989 where concepts of mana tamaiti (tamariki), whakapapa and whanaungatanga apply to all, Māori and non-Māori.
Crown’s submissions on tikanga and the common law
The Crown accepted that tikanga may be used as an interpretive aid to inform the interpretation and development of the common law of Aotearoa/New Zealand. Depending on the circumstances, tikanga values might be relevant to common law decision-making. The Crown noted that there are already a large number of statutes which incorporate tikanga Māori values and concepts and therefore require judges to engage with tikanga. However, tikanga may be of limited relevance where the statute’s scheme or purpose limits or clearly precludes the incorporation of tikanga.[79]
The Crown also accepted that tikanga might be a source of private rights and obligations, the best example being the common law’s recognition of aboriginal customary title and property rights. Tikanga can also shape public law decision making in a range of ways, as permissible or mandatory considerations, again depending on the context.
Intervener’s submissions on tikanga and the common law
Te Hunga Rōia Māori, as intervener, submitted that it is a well-established principle that the common law must evolve within the context and “special needs” of the place in respect of which it is being applied (in this case Aotearoa). In its submission, the development of the common law with respect to the recognition of tikanga is an orthodox progression of the common law in Aotearoa. Tikanga Māori is the first law of Aotearoa and continues to be profoundly important for Māori. Tikanga and its associated values are also increasingly being recognised and accepted within the wider community of Aotearoa, pointing to the example given in the Statement of Tikanga of the commonplace acceptance of rāhui following a death at sea.[80]
In Te Hunga Rōia Māori’s submission the weight accorded to tikanga must be considered on a “case by case” basis, depending on the subject matter and context. If the case involves fundamental tikanga principles, tikanga may be determinative.
Caselaw and tikanga
The common law has always recognised local custom as constituting law for that local area, provided it met certain requirements.[81] The common law also recognised the customary laws of indigenous peoples in British colonies unless and until altered by legislation.[82] The tests for recognition were similar to those used to recognise custom in the United Kingdom. Cooper J in The Public Trustee v Loasby put the requirements as follows: whether the custom exists as a general custom of Māori; whether it is contrary to statute law; and whether it is reasonable.[83] This meant that the common law inherited from Britain was presumptively dominant, with the traditional rules of recognition displaying a certain scepticism toward customary law.[84] Generally colonial courts also required a custom to be certain,[85] consistent, longstanding and not “repugnant to justice and morality”,[86] nor contrary to principles at the “root” of the colonial legal system.[87]
Colonial recognition of customary law
There are numerous examples in early New Zealand caselaw of the courts recognising the existence and validity of tikanga.[88] Some of these cases had Pākehā litigants. For example, Baldick v Jackson involved a dispute between Pākehā over rights to a whale carcass, Loasby considered whether tangi expenses owed to a Pākehā supplier could be paid out of the estate of a rangatira, and Arani v Public Trustee of New Zealand involved the rights of a whāngai Pākehā child in the estate of her Māori whāngai mother.[89]
Modern recognition of tikanga
Tikanga has continued to be recognised in modern caselaw.[90] This Court considered the place of tikanga in the common law in Takamore v Clarke, where the majority of this Court said that the English common law has applied in New Zealand “only insofar as it is applicable to the circumstances of New Zealand”.[91] The majority also said that, subject to conflicting statute law, “our common law has always been seen as amenable to development to take account of custom”.[92] They therefore held tikanga to be a relevant factor in deciding on the burial place of a person with Māori whakapapa.[93] Elias CJ in the same case said that “Maori custom according to tikanga is … part of the values of the New Zealand common law.”[94]
A recent decision of this Court in Trans-Tasman Resources Ltd v Taranaki‑Whanganui Conservation Board (Trans-Tasman) related to the interpretation of the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012. That decision also made some important comments on the nature of tikanga, confirming it to be “applicable law” in terms of s 59(2)(l) of that Act.[95] The Court said that “tikanga is a body of Māori customs and practices, part of which is properly described as custom law”.[96] It was left open for determination whether tikanga is a separate or third source of law and whether there should be any change to the common law tests for the recognition of customary law as law set out in Loasby and discussed in the Court of Appeal decision in Takamore v Clarke.[97]
It is worth repeating and endorsing comments made by Williams J in Trans‑Tasman. He cautioned that the issue of statutory interpretation in that case regarding tikanga should not be viewed only through a Pākehā lens.[98] He pointed out that the interests of iwi with mana moana in the consent area in that case reflect the relevant values of the interest holder: mana, whanaungatanga and kaitiakitanga. These relational values are principles of law that predate the arrival of the common law in 1840.[99]
I refer to one more decision of this Court: Cowan v Cowan.[100] In that case, the underlying dispute was between a father and two of his children in relation to a property in Wellington which had been the Cowan family home for a number of years. The dispute was yet to go to a substantive hearing. The issue before this Court related to an alleged breach of an undertaking for damages related to a caveat. Tikanga issues were raised. This Court said they were not relevant to the dispute about the breach of the undertaking but recognised that “tikanga principles about the significance of whenua and kāinga may provide some support for [the children’s substantive] claim [against the father]”.[101] It was earlier noted that those concepts “accord with equity’s reluctance to treat damages as an adequate remedy in land disputes”.[102]
Legislation and tikanga
The first point is that the application of tikanga in the common law can be limited or excluded by statute, although this requires an unambiguous statutory provision.[103] This does not give the full picture, however. It is generally accepted that there is a presumption that statutes are to be interpreted consistently with Te Tiriti as far as possible.[104] Because the tino rangatiratanga[105] guarantee in Article Two is generally taken to import Māori rights to live by and benefit from tikanga,[106] it has been argued that it follows that statutes should be interpreted consistently with tikanga as far as possible.[107]
Second, the Legislation Design Advisory Committee guidelines specifically require those drafting legislation to consider whether the proposed legislation would affect any practices governed by tikanga.[108] The guidelines also provide that legislation should be consistent with tikanga to the extent possible:[109]
New legislation should, as far as practicable, be consistent with fundamental common law principles and tikanga (which may require appropriate consideration of Māori language, customs, beliefs and the importance of community, whānau, hapū and iwi).
Modern legislative practice has been to incorporate tikanga principles into a wide range of statutes where considered relevant.[110] This is a trend that shows no sign of abating. For example, the Resource Management Act 1991 has “tikanga Maori” as a defined term and it is then used throughout the Act.[111] In the criminal field, while the Sentencing Act 2002 does not explicitly reference tikanga, under s 27, an offender may request the court to hear any person to speak on the cultural background of an offender. Similarly, restorative justice processes, which may incorporate tikanga practices, can be considered by the sentencing judge.[112]
Many of the statutory references impose tikanga obligations or considerations on non-Māori as well as Māori. For example, tikanga-based principles will affect non‑Māori applicants for resource consents. Further, some legislation allocate the benefits of tikanga principles to non-Māori. The Oranga Tamariki Act, for example, places weight on recognising mana tamaiti (tamariki), whakapapa, and the practice of whanaungatanga” for all children and young persons.[113]
Finally for completeness, tikanga and tikanga principles, as one might expect, are also regularly incorporated into Treaty settlement legislation to recognise the tikanga that underlies the connection between the land and the mana whenua.[114] One of the more important developments in protecting taonga is the recognition of the legal personality of natural resources,[115] notably Te Urewera[116] and the Whanganui River.[117]
Policy and tikanga
Tikanga principles are also now incorporated into the policies of many public and private entities. Adopting the principles of consultation and partnership derived from Te Tiriti,[118] many Government departments and entities have guidelines for tikanga-consistent engagement with Māori communities.[119]
It is now also recognised by many agencies that the best way to engage with Treaty principles is to adopt tikanga-based policies and strategies to improve outcomes for Māori. For example, the District Court of New Zealand is now moving to adopt a new operating model, Te Ao Mārama.[120] It proposes to:[121]
… draw upon the tikanga concept of community responsibility for both the victim and the offender. It involves coordination between support agencies and court participants, and much wider community, iwi, and stakeholder engagement in the court process.
This sits alongside other tikanga-based justice programmes such as the Rangatahi Courts[122] and Te Pae Oranga.[123] It is also significant that Te Ao Māori and tikanga will soon form a compulsory part of the curriculum for a law degree.[124]
The place of tikanga
In this section of these reasons, I first provide a summary of the current position of tikanga in the law of Aotearoa/New Zealand, and in particular, its place in the common law. I also make some comments on points left open in Trans-Tasman: whether tikanga is a separate or third source of law, and the suitability or otherwise of the colonial tests for incorporation of customary law into the common law. I then comment on when and how tikanga may be relevant in future cases. Finally, I discuss the process of ascertaining tikanga before making some concluding remarks.
Tikanga and the common law
I adopt the Statement of Tikanga’s discussion of the nature of tikanga as including all the “values, standards, principles or norms that the Māori community subscribe to, to determine the appropriate conduct”.[125] I also adopt the Statement of Tikanga’s description of tikanga as comprising both practice and principle.[126] I acknowledge that tikanga Māori was the first law of Aotearoa.[127]
As shown by my discussion of both old and more modern caselaw, that tikanga as law is part of the common law of Aotearoa/New Zealand is a longstanding and uncontroversial proposition.[128] It has been recognised by the courts since 1840 and has been recently confirmed by this Court in Trans-Tasman.[129]
The modern recognition and application of tikanga principles by the common law has not developed in a vacuum. Rather, it must be seen in the context of the history of the application of tikanga in the common law, the obligations under Te Tiriti, the modern social context and statutory engagement with tikanga. As noted above, the courts have been increasingly called upon to apply tikanga principles in statutes and tikanga also permeates government policies.
It is worth saying something more about values. It is the function of this Court to declare the law of Aotearoa/New Zealand and we must do so mindful of the values that in combination give us our own sense of community and common identity. We share some of these values with other nations, especially those founded on the common law tradition. Other relevant values may be unique to our nation’s history and circumstances. Tikanga and kaupapa Māori belong to this latter category and are of particular importance as tikanga is the first law of Aotearoa/New Zealand and Māori are tangata whenua: tikanga is part of the values of the New Zealand variety of the common law.[130] The consideration of common values is important when applying the common law to new or novel situations or when considering the need (or otherwise) to develop or modify the common law.
Separate or third source of law
This Court in Trans-Tasman left open whether tikanga is a separate or third source of law.[131] I do not intend to discuss this in detail. I just note that tikanga (as accepted earlier) includes all the “values, standards, principles and norms that the Māori community subscribe to, to determine the appropriate conduct”.[132] This will continue to be the case, meaning tikanga will continue to be applied by Māori and will continue to develop, independent of its place as part of the common law or as contained in legislation and policy. In this sense, tikanga is a separate or third source of law.
Test for incorporation
This Court in Trans-Tasman left open the question of whether the colonial tests for incorporation of custom into the common law should continue to apply.[133]
It is significant that the incorporation tests do not apply when a requirement to apply tikanga is contained in a statute. This Court in Trans-Tasman said that the tests set out in Loasby were not necessary on the approach taken by this Court in Takamore (where tikanga was seen as a relevant factor but not controlling).[134] It seems to me, against this background, that there would need to be a good reason to retain the incorporation rules in other contexts in the common law. Far from there being a good reason for retention, for the reasons set out below, I consider the tests to be colonial relics with no place in modern Aotearoa/New Zealand.
The requirements for custom to exist as a general custom[135] and to be certain and consistent do not accord with the nature of tikanga. Traditional legal systems tend to be more focused on values and principles rather than rules oriented. Further, one of the essential strengths of tikanga is its ability to adapt to new conditions and to have local variations as appropriate. These tests for certainty and consistency, being contrary to the very nature of tikanga, are therefore clearly inappropriate.
In a similar vein, the requirements for a custom to be reasonable and not repugnant to justice and morality were based on colonial attitudes that are artefacts of a different time. They import notions of “judging” tikanga and operate on the assumption of the superiority of Western values and a view that the common law inherited from the United Kingdom should be presumptively dominant.[136] I therefore do not consider these requirements for the recognition of custom have any place in the contemporary common law of Aotearoa/New Zealand. In any event, they are very narrow restrictions and are unhelpful for courts where they need to consider the role of tikanga in modern conditions.
For all the above reasons, I do not consider the traditional incorporation rules should continue to apply. I do not attempt a reformulation of the test for the inclusion and application of tikanga in the common law.[137] At this point in the development of the law, which is in a state of transition, it suffices to reiterate that tikanga as law is a part of the common law of Aotearoa/New Zealand. As I discuss below, what this means in practice will need to be worked out on a case by case basis in terms of the normal common law method of incremental development.[138]
When and how tikanga will need to be considered
As an overall comment, tikanga will need to be considered where it is relevant to the circumstances of the case. It will not have to be considered in cases where it is not relevant or where consideration of tikanga will not or cannot assist, such as when it would be contrary to statute[139] or contrary to binding precedent.[140] In terms of the usual common law method, prior authorities on tikanga will be useful in ascertaining when tikanga may be relevant in future cases.
In some cases, tikanga and its principles may be controlling: for example, where Treaty principles and/or tikanga have been incorporated into statute in a manner that makes them so, or where the factual context justifies it. In other cases, tikanga principles or values may be relevant considerations alongside other relevant factors.[141] Tikanga may be relevant to explain the social and cultural framework for the actions of Māori parties.[142] In still other cases tikanga principles and values may have an influence on the development of the common law. They can also provide a new vocabulary or new way of thinking about new concepts of law or a new intellectual framework for those concepts.[143]
Challenging issues may arise where there may be a difference between the process or result indicated by tikanga principles and that under the current common law. Such issues may arise due to the traditionally more individualistic nature of the common law and the more relational and communitarian perspective of tikanga. That does not necessarily mean the two are irreconcilable or necessarily by default sit in opposition. The methodology of resolving any differences will need to be worked through on a case by case basis.
Process of ascertaining tikanga
The Statement of Tikanga expressed concern that unintended consequences could arise if the courts are able to draw on tikanga in making decisions and, in particular, that this could lead to tikanga being distorted when applied by courts insufficiently familiar with the subject matter.[144] Ultimately the Statement of Tikanga supported tikanga as one of the many sources of New Zealand law,[145] but not without expressing concern about the risk that the courts might take over the role of adapting and expounding tikanga from those whose responsibility it has been since time beyond memory. The experts were confident that tikanga has survived to date and will always continue to inform and regulate Māori behaviour.[146] But they stressed that the courts must use processes and practices that help preserve the integrity of tikanga as a cohesive system of substantive law and legal process.[147] I acknowledge the importance of these concerns.
This leads to the issue of the appropriate way of ascertaining the relevant tikanga. I do not wish to be prescriptive as appropriate methodologies will be developed by the courts in future cases.[148] I do offer some preliminary comments.[149]
The concerns in the Statement of Tikanga must be taken seriously.[150] Tikanga must inform and, in appropriate cases, control how decisions about tikanga in the common law are made and how tikanga may develop to meet new circumstances.
I recognise that in general the sources of tikanga and those vested with the expertise and authority to expound on it will be external to the courts.[151] As the Statement of Tikanga sets out:
35. Knowledge of tikanga is passed down through sources such as: wānanga (institutions of learning), whaikōrero (oratory); karanga (call); waiata (songs); mōteatea (traditional chant or lament); whakapapa recitations (genealogy) whakatauākī (proverbial sayings) and pūrākau (stories). It is also learnt through exposure to its practice in everyday life.
36. The foundational notions of tikanga are widely known. However, some tikanga might be tapu (sacred) and kept confined to certain expert people. For example, certain karakia (ritual incantations) would be only used by a small group of experts who have the appropriate training, expertise and standing.
37. Given the nature of tikanga, being law that is comprised of principle and the custom and practice of people, we consider that the convening of this hui and forum of tikanga experts to be an appropriate way of determining the relevant tikanga that applies to an issue at hand.
There would not be many judges or indeed counsel who could lay claim to such expertise.[152] I commend the parties in this case for convening the wānanga and conducting that wānanga in accordance with tikanga processes. I agree with the intervener that “this type of process is not only positive for the parties but also highlights the strength of tikanga from a procedural perspective”.
It is important to acknowledge, however, that the methodology used in this case will not be suitable or even possible for all or even for many cases. The best approach will be contextual, depending on the issues, the significance of tikanga to the case as well as matters of accessibility and cost. In simple cases where tikanga is relevant and uncontroversial, submissions may suffice.[153] In other cases, a statement of tikanga from a tikanga expert may be appropriate. Another mechanism is for the relevant court to appoint independent expert witnesses or pūkenga.[154] I also note that, where questions of tikanga arise in the High Court, that Court may state a case and refer it to the Māori Appellate Court, with the decision binding the High Court.[155]
Concluding remarks
This case has provided an opportunity for this Court to synthesise and describe the current state of the place of tikanga in the common law and to offer some comments on future developments. Any discussion needs to be viewed in the context of the widespread incorporation of tikanga principles, concepts and values into statutes and policies of government. This means that we are now at a point where tikanga and/or tikanga-derived principles are part of the fabric of Aotearoa/New Zealand’s law and public institutions through legislation, the common law and policy. This is a manifestation of Te Tiriti, particularly in relation to Article Two, and also highlights Aotearoa/New Zealand’s commitment to the United Nations Declaration on the Rights of Indigenous Peoples.[156]
I stress that the common law is in a state of transition. The caselaw to date on tikanga as part of the common law has been relatively limited. Further development will be gradual as cases arise. Certainty, consistency and accessibility are strong values in our legal system. Precedent will still bind as it does conventionally, unless distinguishable. This is why the common law method is generally for the law to develop incrementally as it will continue to do with regard to the application of tikanga in the common law.
Tikanga and this case
I now turn to the application of tikanga in this case and start by outlining the relevant tikanga (derived from the Statement of Tikanga). In relation to this case, the Statement of Tikanga says:[157]
Mana tangata, and by implication, whakapapa and whanaungatanga, is impacted by the allegations of hara. Consequently, this continues after the death of the person.
Tikanga requires further probing in these circumstances.
The Statement of Tikanga went on to elaborate on this general principle by explaining the relevant tikanga principles to be applied to Mr Ellis’ case: hara, mana, whakapapa, whanaungatanga and ea. As the Statement of Tikanga notes, these concepts are interrelated and cannot be understood in isolation.[158]
The concept of hara at a simplified level means: the transgression of tapu, the commission of a wrong and the violation of tikanga resulting in an imbalance. This requires a restoration of balance or the achieving of a state of ea. In this case, the hara could either be the offending against the complainants or the wrongful conviction of an innocent man. Ea needs to be achieved, both for Mr Ellis and the complainants. Otherwise, the hara carries on. It does not die with Mr Ellis.
There are two key forms of mana:
(a)Mana tuku iho: this is mana inherited from ancestors. Under tikanga, everyone is born with mana by virtue of having a whakapapa (genealogy) and being born into a collective whether that be a whānau (family), hapū (sub-tribe) or iwi (tribe); and
(b)Mana tangata: mana derived from one’s actions or ability.
Mana can be gained and lost depending on one’s actions and reputation and is not extinguished at death. Relevant in the current case is Mr Ellis’ ongoing mana, the separate but related mana of his whānau, the mana of the complainants and the separate but related mana of their respective whānau.
The experts agreed that through whakapapa, the whānau of Mr Ellis and the whānau of the complainants are impacted by the alleged hara committed by him. Responsibility falls on all of the families to restore any mana that may have been lost.
Whanaungatanga is fundamental, creating rights and responsibilities within and between whānau. Whanaungatanga focuses upon the maintenance of properly tended relationships. Whanaungatanga means that, when hara is committed, it not only impacts the individuals involved (offenders and victims), but also the broader collectives of these individuals including whānau, hapū and iwi, that is, their communities. A community is always responsible to some degree for the wrongdoing of its members because they too are part of the community. It also means that a community must share the burden borne by any of its members who are victims of offending.
The notion of ea indicates the successful closing of a sequence and the restoration of relationships, or the securing of a peaceful outcome, although a state of ea can still be reached even when one or both of the parties remain unhappy with the outcome. The Statement of Tikanga says in this case that this Court granting leave to appeal meant that the door was opened to a process for the further probing of the hara with a view to achieving a state of ea.
Submissions on tikanga in this case
Submissions for Mr Ellis
Counsel for Mr Ellis submitted that tikanga is New Zealand’s first law and is still part of the common law.[159] It is acknowledged that Mr Ellis was not Māori, but in this case, tikanga should inform the interpretation and development of the common law. This would also give effect to New Zealand’s commitments under the United Nations Declaration on the Rights of Indigenous People.
In this case, tikanga values lead to the conclusion that death alone does not mean the end of Mr Ellis’ interests in a criminal appeal. His mana transcends death and his mana, and that of his family, would be positively affected if the appeal succeeds. Although where the hara sits in this case is unclear, given that it may be the offending against the victims or the conviction of an innocent man, to achieve a state of ea, further probing is required and the appeal should continue.
Submissions for the Crown
The Crown submits that the “ends of justice” inquiry is itself shaped by various factors and the common law so that, on a case by case basis, different factors will be weighed in the balance. Mātāpono (principles) drawn from tikanga Māori may be relevant, although not dispositive. They should be weighed alongside all other relevant circumstances of the case in undertaking this inquiry. The relevant factors in this case include: the mana of Mr Ellis, the complainants and their respective whānau; the complainants’ interests in finality; the weak basis for the appeal; the fact that continuation would not resolve Mr Ellis’ guilt or innocence; and the practical difficulties in hearing the appeal given Mr Ellis’ death.
The Crown submitted that the Court should now “close the door” opened by the granting of leave to appeal and revoke the grant of leave. Revoking leave would, in the Crown’s submission, restore the state of ea which had been disturbed through this Court’s grant of leave to appeal.
Submissions for the intervener
Te Hunga Rōia Māori expresses a “cautious” view that tikanga Māori supports the appeal continuing. In its submission, tikanga should be weighed as part of a balancing exercise against other relevant considerations. Its importance will depend on the particular context and in some cases may be determinative, especially where fundamental principles of tikanga are involved.
In the instant case, Te Hunga Rōia Māori submits that fundamental tikanga principles such as mana, whakapapa and whanaungatanga are engaged and should be accorded significant weight. These principles recognise that the appellant’s reputation survives his death and influences the mana of his whānau and potentially others close to him. As the appellant never admitted any wrongdoing, the complainants’ mana is also impacted. Ultimately, ea requires that the appeal, where leave was granted before the appellant’s death, be allowed to continue.
Effect of tikanga on the test for continuance
I am conscious that the tikanga approach is not to balance competing considerations in the same way as under the common law interests of justice test outlined above. While the appellant and intervener suggested considerable weight should be afforded to tikanga given the fundamental principles of tikanga involved, neither suggested that the tikanga approach should be controlling in this case. The submission was rather that relevant tikanga principles should be taken into account by this Court.
I gave consideration to whether the test outlined above should be modified by adding tikanga as an additional factor but decided that isolating tikanga principles for separate consideration is not appropriate. The balancing test assessing the factors set out above therefore remains the appropriate test.[160]
Tikanga considerations may, however, be taken into account if and when relevant in assessing each of the factors. The tikanga principles of mana, whanaungatanga, whakapapa, hara and utu referred to in the Statement of Tikanga may be relevant when considering the interests of the appellant, the victims and their whānau, particularly if any of the parties involved are Māori. The concept of ea may be useful in assessing the prospect of achieving substantive finality posthumously and therefore in assessing whether continuing the appeal is in the interests of justice.
I comment that the submissions on tikanga were also beneficial in that they helped to clarify my view on the appropriate test in cases such as this by making explicit values underpinning the factors outlined in R v Smith. The consideration of tikanga solidified my decision to add to the R v Smith factors the reputational issues relating to the deceased appellant, the deceased appellant’s whānau and the interests of the victims and their whānau.[161]
Application to this case
In this case, the principles and further guidance provided in the Statement of Tikanga leads to the same conclusion as that reached without considering tikanga: that the appeal should continue. The addition of the tikanga considerations of mana, whanaungatanga, whakapapa, hara and utu supported and strengthened my conclusion on the factors where they were relevant and, in particular, when considering the interests of Mr Ellis and his family and those of the complainants and their families.
In the overall balancing, I found the desirability of reaching a state of ea helpful in assessing the interests of justice. I do not accept the Crown’s submission that a state of ea would be achieved by revoking leave. I accept the submission made by Mr Ellis and the intervener that tikanga requires that the process started by the grant of leave should be allowed to continue, or, as the Statement of Tikanga puts it, “me haere tonu” (the case should continue).[162]
Result
The application for the continuation of the appeal despite the death of the appellant is granted.
WINKELMANN CJ
| Table of Contents | |
| Para No. | |
| Introduction | [149] |
| The context in which the issue arises | [153] |
| The common law and the common law method | [161] |
| The relationship between tikanga and the common law | [168] |
| What principles should guide the Court in deciding whether to allow the appeal to continue after Mr Ellis’ death? | |
| [184] | |
| Tikanga | [185] |
| Common law principles | [188] |
| The practicality of continuing | [188] |
| Personal and public interest in addressing a potential miscarriage of justice | |
| [190] | |
| Finality as a common law value | [198] |
| A framework for decision | [210] |
| Application of these principles in this case | [216] |
| Practicality of proceeding with the appeal | [216] |
| Interest in finality in litigation | [217] |
| Public and personal interest in addressing a potential miscarriage of justice | |
| [220] | |
| Conclusion on continuation | [228] |
Introduction
In September 2020 this Court granted an application for the continuation of the appeal following the death of Mr Ellis, with the indication that reasons for that decision would be given at the same time as the judgment in the substantive appeal.[163] I now give my reasons as to why I considered that the appeal should be allowed to continue following the appellant’s death.
The issue of whether an appeal against conviction can continue following the death of the appellant has previously been addressed by the Court of Appeal. In the absence of any statute or rule of court regulating the position, the Court of Appeal has stated its practice to be that it will treat the appeal as lapsed.[164] But the Court of Appeal has also recognised a discretion to allow the appeal to continue, although describing it as a power to be used sparingly, or in exceptional circumstances.[165] The usual context in which the discretion has been exercised is where there is a continued pecuniary interest in the outcome, such as where financial penalties or reparation orders apply.[166]
This is however the first time that this Court has been asked to address the issue. There is no statutory provision or rule of court which directly addresses whether an appeal, once commenced in the Supreme Court by grant of leave, may continue after the death of the appellant. There is no prohibition on the Court hearing an appeal for which leave was granted before the appellant’s death. Rule 5(2) of the Supreme Court Rules 2004 provides that in any case for which no procedure is prescribed in the rules, and for which there are no rules that can be applied by way of analogy, the Court may dispose of the case “in the manner that the Court thinks best calculated to promote the ends of justice”.
Since there are no rules that can be applied by way of analogy, it is necessary to decide the issue in the manner most calculated to promote the ends of justice. Another way of expressing this would be to use the more common phrase, to decide the issue in accordance with the interests of justice, and I therefore use those phrases interchangeably. Many procedural matters in the criminal context are decided by reference to the interests of justice. The decision as to that must be reached in accordance with legal principle. I differ from Glazebrook J and from O’Regan and Arnold JJ in how I formulate that test.[167] The test that I formulate and apply is explicitly tied to the values that I explain should underpin an assessment of what the ends of justice require in this circumstance. Applying the principles-based approach I set out below, however, I agree with both Glazebrook and Williams JJ that the appeal should be allowed to continue.
[119]See, for example, Te Puni Kōkiri | Ministry of Māori Development Te Hanga Whanaungatanga mō te Hononga Hāngai ki te Māori | Building Relationships for Effective Engagement with Māori (October 2006) accessible at < See also Te Arawhiti | The Office for Māori Crown Relations Guidelines for engagement with Māori accessible at < New Zealand Petroleum & Minerals Best Practice Guidelines for Engagement with Māori (August 2014) accessible at < and Waka Kotahi | NZ Transport Agency Hononga ki te Iwi // our Māori engagement framework accessible at < Heemi Taumaunu, Chief District Court Judge of New Zealand, “Mai te Pō ki te Ao Mārama | The Transition from Night to the Enlightened World: Calls for Transformative Change and the District Court Response” (Norris Ward McKinnon Annual Lecture 2020, University of Waikato | Te Whare Wānanga o Waikato, Hamilton, 11 November 2020) accessible at < Justice of New Zealand Annual Report for the period 1 January 2020 to 21 December 2021 (4 March 2022) at 36.
[122]See Te Kōti-ā-Rohe o Aotearoa | District Court of New Zealand “Rangatahi and Pasifika Youth Courts” < Rangatahi Courts also provide access to tikanga learning programmes.
[123]Ngā Pirihimana o Aotearoa | New Zealand Police “Te Pae Oranga Iwi Community Panels” < See also Coates, above n 104, at 78–79.
[124]New Zealand Council of Legal Education “Te Ao Māori and Tikanga Māori” < See further Jacinta Ruru and others Inspiring National Indigenous Legal Education for Aotearoa New Zealand’s Bachelor of Laws Degree: Phase One – Strengthening the Ability for Māori Law to Become a Firm Foundational Component of a Legal Education in Aotearoa New Zealand (Ngā Pae o te Māramatanga, 2020); and Joe Williams “Decolonising the Law in Aotearoa: Can we start with the law schools?” (2021) 17 Otago LR 1.
[125]Statement of Tikanga at [26].
[126]At [27].
[127]At [19] and [22].
[128]I use the term “tikanga as law” to recognise that tikanga as law is a subset of the customary values and practices which constitute tikanga: see Trans-Tasman, above n 95, at [169] per William Young and Ellen France JJ and agreed to by Glazebrook J at [237], by Williams J at [296]–[297] and by Winkelmann CJ at [332]. I note also my comments below at [114].
[129]See above at [95].
[130]Takamore (SC), above n 91, at [94] per Elias CJ.
[131]Trans-Tasman, above n 95, at [169], n 282 per William Young and Ellen France JJ and agreed to by Glazebrook J at [237], by Williams J at [296]–[297] and by Winkelmann CJ at [332].
[132]See above at [107].
[133]Trans-Tasman, above n 95, at [169], n 282 per William Young and Ellen France JJ and agreed to by Glazebrook J at [237], by Williams J at [296]–[297] and by Winkelmann CJ at [332]. In Takamore (CA), above n 83, Glazebrook and Wild JJ (at [254]) had suggested a “more modern” approach to tikanga to “try to integrate it into the common law where possible rather than relying on the strict rules of colonial times”.
[134]Trans-Tasman, above n 95, at [168] per William Young and Ellen France JJ and agreed to by Glazebrook J at [237], by Williams J at [296]–[297] and by Winkelmann CJ at [332]. The tests for incorporation were not mentioned in Takamore (SC), above n 91.
[135]On the “old” requirement for a custom to be general, see Takamore (CA), above n 83, at [170]–[174] per Glazebrook and Wild JJ.
[136]See generally Fitzpatrick, above n 84, at 21.
[137]Indeed, I doubt that any single test will ever be formulated, given the nature of tikanga and the many ways it might be relevant to the common law as discussed below at [118].
[138]On the common law method, see Glanville Williams Glanville Williams: Learning the Law (ATH Smith (ed), 17th ed, Sweet & Maxwell, London, 2020) at 75–106. The place of tikanga is also currently being examined by Te Aka Matua o te Ture | Law Commission. This project plans to explain tikanga Māori, as well as “map” tikanga Māori as a system of law, drawing, among other things, on its expression in the courts and the Waitangi Tribunal with the aim of providing a framework for engagement with tikanga within Aotearoa/New Zealand’s legal system: see < for more information.
[139]But note my comment above at [98] relating to the argument that statutes should be interpreted consistently with tikanga as far as possible.
[140]Unless that precedent can be distinguished.
[141]For example, in Takamore (SC), above n 91, at [164], the majority noted the common law of New Zealand requires “reference to the tikanga, along with other important cultural, spiritual and religious values, and all other circumstances of the case as matters that must form part of the evaluation”. See also the comments in Cowan, above n 100, discussed above at [97].
[142]But note the caution expressed in Deng v Zheng [2022] NZSC 76 about stereotyping at [80]–[82]. See also the general observations in that case at [78]. While the Court in Deng v Zheng said at [77] that these comments do not address tikanga, many of the observations will still have resonance in this situation.
[143]This paragraph is not intended to be a full analysis of the ways tikanga might be taken into account. As noted above at [82], the law is in a state of transition.
[144]See [51] of the Statement of Tikanga. Annette Sykes argues that it is necessary that judges (non‑experts in tikanga Māori) have the assistance of a tohunga (specialist knowledge-keeper) to guide the assessment of tikanga: Annette Sykes “The myth of tikanga in the Pākehā law” (7 February 2021) E-Tangata < See for a practical example Jacinta Ruru “Taonga and Family Chattels” [2004] NZLJ 297 at 298.
[145]At [52](c).
[146]For a fuller discussion see [49]–[54] of the Statement of Tikanga and see my comment above at [111] on whether tikanga is a separate or third source of law.
[147]The Statement of Tikanga gives some examples of these at [53] and I agree these are sensible measures. See generally Coates, above n 104, at 84–85 for a discussion on the challenge of retaining the integrity of tikanga while recognising tikanga in the common law.
[148]For example, Te Aka Matua o te Ture | Law Commission’s tikanga project will no doubt provide insights and recommendations on this issue: see above at n 138.
[149]As noted above at n 142, while the case of Deng v Zheng, above n 142, said at [77] that it does not address tikanga, the comments in that case may nevertheless be of relevance in this context.
[150]Courts will have to be careful “to know where [they do] not have the cultural right to venture and what the limits of [their] knowledge and expertise are”: Tolmie and others, above n 110, at [1.2.3.2](b).
[151]I note also that Elias CJ in Takamore (SC), above n 91, at [95] said tikanga is a question of fact. Foreign law is generally treated as a question of fact: see Maria Hook and Jack Wass The Conflict of Laws in New Zealand (LexisNexis, Wellington, 2020) at [3.43]–[3.44]. As tikanga is part of the common law, it is not foreign law. It is thus not appropriate to refer to it as having to be proved as a question of fact. Because of the nature of tikanga, however, it may need to be established and ascertained by evidence or through another suitable process, as discussed below.
[152]Tolmie and others, above n 110, at [1.2.3.2](b).
[153]See, for example, the comments in Deng v Zheng, above n 142, at [84]. Published sources may be helpful (see s 129 of the Evidence Act 2006) – I note, for example, Benton, Frame and Meredith, above n 89; and the previous Te Aka Matua o te Ture | Law Commission paper on Māori custom and values, above n 110. The forthcoming Law Commission tikanga project (discussed above at n 138) will also no doubt be a valuable future resource, as will Te Rauhī i te Tikanga—A Tikanga Companion currently in development at Te Kauhanganui Tātai Ture | the Faculty of Law at Te Herenga Waka | Victoria University of Wellington: see Te Herenga Waka | Victoria University of Wellington “Developing a tikanga Māori ‘digital companion’” (26 August 2022) < and Coastal Area (Takutai Moana) Act 2011, s 99(1)(b); and High Court Rules 2016, r 9.36. In Te Whakatōhea No 2, above n 90, the Judge appointed two independent pūkenga: see process discussed at [313]–[314]. The pūkenga report was attached as an appendix to the judgment.
[155]Te Ture Whenua Maori Act, s 61; and the Marine and Coastal Area (Takutai Moana) Act, s 99.
[156]United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007), art 34: “Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.” See also art 19 which provides that “States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.”
[157]Statement of Tikanga at [20].
[158]At [58].
[159]Counsel referred to a number of the cases I cite above at [92]–[97].
[160]See above at [57].
[161]I apprehend, however, that the tikanga approach, as set out in the Statement of Tikanga, may be perceived as more evenly balanced between the interests of the victims and their families as compared to the interests of an appellant and their family. This contrasts with the greater weight I consider should be accorded to the interests of the complainants in this case: see above at [69].
[162]The position may have been different if there had been no judicial decision: for example, if an appeal could be filed without leave. It may be too that not all grants of leave would mean that a state of ea had not been achieved.
[163]Ellis v R [2020] NZSC 89.
[164]K (CA354/02) v R CA354/02, 1 December 2004 (Minute); and Peters v New Zealand Police [2014] NZCA 215.
[165]R v Saxton [2009] NZCA 61, [2009] 3 NZLR 29; and Peters, above n 164.
[166]Saxton, above n 165; Peters, above n 164; and Beri v R CA456/03, 29 June 2004. See also Walker v Rusbatch [1959] NZLR 600 (SC); Barrett v Sarten [1982] 2 NZLR 757 (HC); and King‑Sorenson v Police HC Rotorua CRI-2003-077-2816, 7 July 2005.
[167]The test governing continuation proposed by Glazebrook J above at [57] and agreed to by O’Regan and Arnold JJ below at [278] and [292]–[293] commands a majority of this Court.
[168]The meaning of “tikanga” is discussed below at [168]–[170].
[169]In this context, a wānanga is a gathering of experts to discuss an issue.
[170]This was a process initiated by the parties.
[171]Supreme Court Act 2003, s 3, as continued by s 66 of the Senior Courts Act 2016.
[172]The Supreme Court of New Zealand was established for the purpose, amongst other things, of enabling important legal mattes to be resolved “with an understanding of New Zealand conditions, history and traditions”: Supreme Court Act, s 3.
[173]R v Hines [1997] 3 NZLR 529 (CA) at 538–539 citing Dietrich v The Queen (1992) 177 CLR 292 at 319 per Brennan J.
[174]New Zealand Air Line Pilots’ Assoc Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289; Ortmann v United States of America [2020] NZSC 120, [2020] 1 NZLR 475 at [96]; D (SC 31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213 at [165] per Glazebrook J; Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551 at [116] per Winkelmann CJ; and TUV v Chief of New Zealand Defence Force [2022] NZSC 69, [2022] 1 NZLR 78 at [92] per Winkelmann CJ and O’Regan J.
[175]At [22] of the Tikanga Statement.
[176]Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84, [2019] 1 NZLR 116 [Ngāti Whātua (SC)] at [77] per Elias CJ; and Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94] per Elias CJ and [164] per Tipping, McGrath and Blanchard JJ. For a post-2020 example, see Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [163]–[172] per William Young and Ellen France JJ.
[177]See the discussion of this Court in Trans-Tasman, above n 176, at [166] per William Young and Ellen France JJ citing: Takamore, above n 176, at [150] per Tipping, McGrath and Blanchard JJ; Paki v Attorney‑General [2012] NZSC 50, [2012] 3 NZLR 277 at [18] per Elias CJ, Blanchard and Tipping JJ and [105] per McGrath J; and Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA) at [13] and [17] per Elias CJ, [134]–[135] per Keith and Anderson JJ and [183]–[185] per Tipping J. See also English Laws Act 1858, s 1; and English Laws Act 1908, s 2, the effect of which is preserved by the Imperial Laws Application Act 1988, s 5.
[178]A rāhui is a means of prohibiting specific human activity from occurring through the use of tapu (making something sacred).
[179]See the reasons of Glazebrook J above at [103]–[104] with whom the other Judges expressed agreement: below at [257] per Williams J and [280] and n 275 per O’Regan and Arnold JJ.
[180]As also acknowledged by Glazebrook J, above at [92] and n 82.
[181]Although noting that in its original inception as the Native Land Court, those tikanga rights were in general recognised for the purpose of their extinguishment: see David V Williams ‘Te Kooti Tango Whenua’: The Native Land Court 1864-1909 (Huia Publishers, Wellington, 1999).
[182]The Public Trustee v Loasby (1908) 27 NZLR 801 (SC); and Arani v Public Trustee [1920] AC 198 (PC) (commonly cited as Hineiti Rirerire Arani v Public Trustee).
[183]See the reasons of Glazebrook J above at [100]–[102] for examples of key statutes that incorporate tikanga.
[184]Statute law is looked to as a source of values and ideas that can be incorporated into the common law: see the discussion in Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 732–740.
[185]Barton-Prescott v Director-General of Social Welfare [1997] 3 NZLR 179 (HC) at 184; and Tukaki v Commonwealth of Australia [2018] NZCA 324, [2018] NZAR 1597 at [38]. See also Ngāti Whātua Ōrākei Trust v Attorney-General (No 4) [2022] NZHC 843 [Ngāti Whātua (HC)] at [358] and [587]; and Mercury NZ Ltd v The Waitangi Tribunal [2021] NZHC 654, [2021] 2 NZLR 142 at [104] for a post-2020 discussion.
[186]See the reasons of Glazebrook J above at [94]–[97].
[187]Takamore, above n 176.
[188]Ngāti Whātua (SC), above n 176, at [77] per Elias CJ; Trans‑Tasman, above n 176, at [154] per William Young and Ellen France JJ and [296]–[297] per Williams J; and Ngati Apa, above n 177.
[189]See, for example, the reference to kaitiakitanga in s 2 of the Resource Management Act 1991 and the inclusion of tikanga principles in the Oranga Tamariki Act 1989.
[190]The key exception is the Native Land Court, and later Te Kooti Whenua Māori | Māori Land Court, because of the statutory jurisdiction to determine customary title according to tikanga. However, engagement with tikanga in these forums was historically often with a view toward extinguishment of customary title: see above at n 181. See also Shaunnagh Dorsett Juridical Encounters: Māori and the Colonial Courts 1840–1852 (Auckland University Press, Auckland, 2017). More recently, since its establishment in 1975 the Waitangi Tribunal has engaged extensively with tikanga.
[191]See, for example, Joseph Williams “Lex Aotearoa: An Heroic Attempt to Map the Māori Dimension in Modern New Zealand Law” (2013) 21 Wai L Rev 1. Whata J has referred to the renaissance of “Māori issues” jurisprudence post 1970s as a “Cambrian explosion”: see Christian Whata “Biculturalism in the Law: The I, the Kua, and the Ka” (2018) 26 Wai L Rev 24.
[192]See Glazebrook J’s reasons above at [120] and [122] and Williams J’s reasons below at
[270]–[272]. The reasons of O’Regan and Arnold JJ are also alive to these concerns: see below at [285] and n 283.
[193]See Glazebrook J’s reasons above at [121]–[125] and Williams J’s reasons below at [273].
[194]See Glazebrook J’s reasons above at [119] and Williams J’s reasons below at [266].
[195]As the Tikanga Statement notes, whakapapa literally means to “lay one thing upon another”. In this case, it is to lay one generation upon the next.
[196]See above at n 166.
[197]See also Ngāti Rangiwewehi Claims Settlement Act 2014, s 11; and the Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018.
[198]Criminal Cases Review Commission Act 2019, ss 4, 21 and 24.
[199]I express no view on how the interests of those who are not whānau of the deceased appellant may affect the decision to continue an appeal. That issue was not before us and is better dealt with if and when it arises.
[200]Supreme Court Rules 2004, r 12(1) and sch 1.
[201]Hagaman v Little [2017] NZCA 447, [2018] 2 NZLR 140. The common law rule is continued by the Law Reform Act 1936, s 3(1).
[202]Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286.
[203]R v Smith [2003] 3 NZLR 617 (CA) at [36] and [48]; and Uhrle, above n 202. See the statutory framework for criminal appeals in pt 6 of the Criminal Procedure Act 2011 which reflects the same values as those underpinning the appeal framework in pt 13 of the Crimes Act 1961 (under which this appeal is being prosecuted).
[204]Uhrle, above n 202, at [24] and [28].
[205]Marteley v R [2021] NZCA 636 at [37].
[206]See Lord Atkin’s famous observation that “[f]inality is a good thing, but justice is a better” in Lal v The King Emperor [1933] All ER Rep 723 (PC) at 726. See also Smith, above n 203 at [36] and [48] citing The Ampthill Peerage [1977] AC 547 (HL) at 569; and Uhrle, above n 202, at
[26]–[27].
[207]Sen v The Queen (1991) 30 FCR 173 (FCAFC); Johnson v Lapham (1992) 6 WAR 359 (WASC); Quartermaine v R [2002] WASCA 345; and R v Rimon (deceased) [2003] VSCA 136, (2003) 6 VR 553. It is implied in some of these cases that the situation may be different if a fine had been imposed.
[208]See, for example, Regina v Kearley, dec’d (by his agent Sharman) [1994] 2 AC 414 (HL); and Regina v Jefferies [1969] 1 QB 120 (CA). Note the discussion in Jefferies at 123–124 of two earlier cases, which did not engage with the question of whether statutory authority limited an appeal right to a personal right, and instead saw the availability of continuance as an exercise of the court’s inherent power: Regina v Rowe [1955] 1 QB 573 (Crim App); and Hodgson v Lakeman [1943] 1 KB 15 (Divisional Court).
[209]Criminal Appeal Act 1995 (UK), s 7.
[210] R v Smith 2004 SCC 14, [2004] 1 SCR 385.
[211]At [4] citing Borowski v Canada (Attorney General) [1989] 1 SCR 342 at 358.
[212]At [4].
[213]At [20].
[214]At [50].
[215]See the reasons of Glazebrook J above at [49]–[51]. These factors have also been adopted generally in the reasons of O’Regan and Arnold JJ: see below at [292].
[216]See Glazebrook J’s reasons above at [52] and William J’s reasons below at [235]–[236]. See also the reasons of O’Regan and Arnold JJ where they state their preference for a special circumstances test: below at [294].
[217]See above at [48] per Glazebrook J. It may be that these principles also apply where an application for leave to appeal or for an extension of time has been filed before the death of an applicant. However those issues are not before us, and in each of those situations other considerations may be relevant.
[218]See above at [52] per Glazebrook J with whom Williams J (below at [243]) and O’Regan and Arnold JJ (below at [294]) agree with.
[219]I do not address the situation where it is someone other than the appellant or appellant’s family seeking to continue the appeal as that issue is not before us.
[220]See above at [199].
[221]The appellant was convicted following trial in 1993, against which he appealed to the Court of Appeal in 1994 and again in 1999 following a reference from the Governor-General under s 406(a) of the Crimes Act. In 2000 Sir Thomas Eichelbaum was appointed to conduct a Ministerial inquiry into the case.
[222]Ellis v R [2019] NZSC 83 [SC leave judgment] at [11].
[223]See the reasons of Glazebrook J above at [25] and [63] and Williams J below at [241].
[224]SC leave judgment, above n 222, at [17].
[225]I would have reached the same conclusion that the appeal should continue were I applying the test formulated by Glazebrook J. I also agree with Glazebrook J (above at [62]) and Williams J (below at n 267) that the appeal should continue in Mr Ellis’ name .
[226]Ellis v R [2019] NZSC 83 (Glazebrook, O’Regan and Williams JJ). This judgment was recalled and reissued on 7 October 2022.
[227]The most recent Court of Appeal decision was given on 14 October 1999: R v Ellis (1999) 17 CRNZ 411 (CA) (Richardson P, Gault, Henry, Thomas and Tipping JJ).
[228]See, for example, Peters v New Zealand Police [2014] NZCA 215.
[229]See R v Saxton [2009] NZCA 61, [2009] 3 NZLR 29; Beri v R CA456/03, 29 June 2004; Barrett v Sarten [1982] 2 NZLR 757 (HC); and Walker v Rusbatch [1959] NZLR 600 (SC).
[230]R v Smith 2004 SCC 14, [2004] 1 SCR 385 at [50].
[231]See Glazebrook J’s reasons above at [52], and O’Regan and Arnold JJ’s agreement with that test below at [294].
[232]See Glazebrook J’s reasons above at [57] where she outlines factors she considers relevant to whether a posthumous appeal should continue. Of course, when considering victims’ interests, their preferences may cut both ways. If, for example, new evidence demonstrates that the appellant was innocent, the victims’ interests may be in triggering reinvestigation by the authorities in order to find the actual perpetrator.
[233]See the framework set out in Winkelmann CJ’s reasons above at [210]–[211].
[234]An applicant to Te Kāhui Tātari Ture | Criminal Cases Review Commission must be alive at the lodgement of their application; Criminal Cases Review Commission Act 2019, ss 4 and 21. But, the Commission retains discretion to either continue or take no further action on the application should the applicant subsequently die before any investigation is completed: s 24.
[235]For example, in the different context of recall see Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286, a decision which reflects judicial reluctance to displace finality.
[236]See, for example, Uhrle, above n 235.
[237]See, for example, Peters, above n 228.
[238]See, for example, R v Jetté [1999] RJQ 2603 (QCCA) (a Canadian case referred to in Smith, above n 230). For a more recent example post-2020 see Hall v R [2022] NZSC 71.
[239]R (on the prosecution of McIntosh) v Symonds (1847) NZPCC 387 (SC). There were no Māori interests engaged in the case at all. See the discussion in David V Williams “The Queen v Symonds reconsidered” (1989) 19 VUWLR 385. In the American context, an analogous scenario arose in Johnson v M’Intosh 21 US 543 (1823).
[240]The Public Trustee v Loasby (1908) 27 NZLR 801 (SC). The Court held that tikanga Māori required that chiefs such as Mahupuku be farewelled at elaborate tangihanga, the cost of which would generally fall to the estate of the chief. But in this case, Loasby the grocer should have sued the widow (who was not a party) as she placed the order and left it to her to seek recompense from the estate. He therefore failed on a procedural technicality.
[241]Baldick v Jackson (1910) 30 NZLR 343 (SC). Stout CJ held that Māori fishing rights under the Treaty of Waitangi, among other reasons, meant an English statute declaring title to all whales to be in the Crown did not apply in this colony. No party was Māori, nor were Māori rights invoked. See also other similar cases: Re The Lundon and Whitaker Claims Act 1871 (1872) 2 NZCA 41; and Arani v Public Trustee of New Zealand [1920] AC 198 (PC) (commonly cited as Hineiti Rirerire Arani v Public Trustee). In the last-mentioned case the Privy Council commented at
204–205 that “[i]t may well be that…the Maoris as a race may have some internal power of self-government enabling the tribe or tribes by common consent to modify their customs, and that the custom of such a race is not to be put on a level with the custom of an English borough or other local area which must stand as it always has stood, seeing that there is no quasi legislative internal authority which can modify it”.
[242]Jackson v Baldick Magistrate’s Court Blenheim, 3 December 1910 reported in Marlborough Express (Blenheim, 5 December 1910) 2.
[243]In this context, a wānanga is a gathering of experts to discuss an issue.
[244]See the reasons of Glazebrook J above at [35]–[38].
[245]I note (as Glazebrook J did in her reasons above at n 47) that Sir Pou Temara was made a Knight Companion of the New Zealand Order of Merit in 2021, after the Statement of Tikanga was provided to the Court.
[246]The other mātanga in attendance over the two-day wānanga were Te Ripowai Higgins, Kura Moeahu, Professor Rawinia Higgins, Professor Peter Adds (previously Associate Professor), Che Wilson, Mohi Apou and Tamahou Rowe.
[247]Te Ture kia Unuhia te Hara kai Runga i a Rua Kēnana 2019 | Rua Kēnana Pardon Act 2019.
[248]Mokomoko (Restoration of Character, Mana, and Reputation) Act 2013 | Te Ture mō Mokomoko (Hei Whakahoki i te Ihi, te Mana, me te Rangatiratanga) 2013; Pardon for Soldiers of the Great War Act 2000; and Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018. Although the posthumous, or at least potentially posthumous, pardons that are not focused on particular Māori individuals are not framed in mana terms, they still proceed on the basis that the stain of unjust criminalisation remains after death.
[249]The mātanga noted that the concept of whaunangatanga is not just limited to kinship relationships but can extend to those who “become like kin through shared experiences”.
[250]Traditionally physical communities constituted of hapū, the members of which were, by definition, all related by common descent, usually from a named ancestor. See Richard Benton, Alex Frame and Paul Meredith (eds) Te Mātāpunenga: A Compendium of References to the Concepts and Institutions of Māori Customary Law (Victoria University Press, Wellington, 2013) at 71.
[251]The process of creating a state of ea.
[252]See Glazebrook J’s reasons above at [94]–[105].
[253]The growing recognition of that dimension has been reflected in case law. See, for example, New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641 (CA) [the Lands case]; Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC) at 223; and Barton‑Prescott v Director‑General of Social Welfare [1997] 3 NZLR 179 (HC) at 185.
[254]See especially the Lands case, above n 253, at 668 per Cooke P.
[255]See Glazebrook J’s reasons above at [100]–[102].
[256]Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [94] per Elias CJ, [150] and [164] per Tipping, McGrath and Blanchard JJ.
[257]See, for example, The Case of Tanistry (1608) Dav Ir 28, 80 ER 516 (KB); and Campbell v Hall (1774) 1 Cowp 204, 98 ER 1045 (KB).
[258]See R v Hines [1997] 3 NZLR 529 (CA) at 538–539 citing Dietrich v The Queen (1992) 177 CLR 292 at 319 per Brennan J. See also the comment of Elias J in Lange v Atkinson [1997] 2 NZLR 22 (HC) at 45: “the application of established principle to new situations or to developing social context, particularly in parallel with contemporary statutes and other trends, is the essence of the common law, which develops by analogy, case by case … the contemporary legislative and social background needs to be considered if the common law is to keep abreast with the expectations of modern society”. The High Court decision was upheld in Lange v Atkinson [1998] 3 NZLR 424 (CA).
[259]See The Case of Tanistry, above n 257; and Loasby, above n 240.
[260]See Glazebrook J’s reasons above at [115].
[261]See, for example, Sentencing Act 2002, s 27; Care of Children Act 2004, s 5; and the Resource Management Act 1991, ss 6(e), 7(a) and 8.
[262]See, for example, Huakina Development Trust, above n 253; and Barton‑Prescott, above n 253.
[263]Of course, if it is an area of common law to which legislation also applies, then any exclusions in legislation must be considered — although unambiguous statutory language will be required to exclude tikanga: see Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801 at [151] and [154] per William Young and Ellen France JJ and agreed to by Glazebrook J at [237], by Williams J at [296] and by Winkelmann CJ at [332]. See also above at [98] per Glazebrook J.
[264]Native Lands Act 1865. See, for example, Tamaki v Baker [1901] AC 561 (PC) (commonly cited as Nireaha Tamaki v Baker), among many others.
[265]Te Ao Māori and Tikanga Māori will be a compulsory part of the curriculum for a law degree from 2025: New Zealand Council of Legal Education “Te Ao Māori and Tikanga Māori” <
[266]For example the text by Benton, Frame and Meredith, above n 250; Waitangi Tribunal The Report on the Management of the Petroleum Resource (Wai 769, 2011); Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011); and, in a different context which was not intended to apply to tikanga, Deng v Zheng [2022] NZSC 76 at [79]–[84] acknowledged different ways in which relevant cultural information could be brought before the court.
[267]I would have come to the same view on the basis of the considerations in the test propounded by Glazebrook J and approved by O’Regan and Arnold JJ. I agree also that the appeal should continue in the name of Mr Ellis.
[268]I have used the term victims throughout these reasons fully mindful of the fact that Mr Ellis proclaimed his innocence. I have done so because they have suffered considerable harm. This may have been at the harms of a perpetrator or at the hands of a system that has struggled under the weight of this uniquely complex and difficult case. Either way this harm must be recognised and I have chosen to do so by continuing to use this terminology.
[269]Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at [150] per Tipping, McGrath and Blanchard JJ (footnotes omitted). While not articulating a general principle, William Young J accepted that tikanga was important in resolving the dispute before the Court: see [213].
[270]At [94].
[271]At [95].
[272]By way of example, see Te Ture Whenua Maori Act 1993, s 129(2)(a); the Resource Management Act 1991, ss 2(1) (definitions of “kaitiakitanga”, “mana whenua”, “tangata whenua”, “taonga raranga”, “tauranga waka” and “tikanga Māori”), 6(e), 7(a), 14(3)(c), 34A(1A), 39(2)(b), 42(1)(a), 149K(4)(a)(iii), 199(2)(c) and 269(3); the Property (Relationships) Act 1976, s 2 (“taonga” is excluded from the definition of “family chattels”); the Oranga Tamariki Act 1989, ss 2(1) (definitions of “mana tamaiti (tamariki)”, “whakapapa”, “whanaungatanga” and “tikanga Māori”), 4 and 5; and the Marine and Coastal Area (Takutai Moana) Act 2011, the Preamble to which states that the legislation translates intrinsic, inherited rights of iwi, hapū, and whānau, derived in accordance with tikanga into legal rights and interests that are inalienable, enduring, and able to be exercised so as to sustain all the people of New Zealand and the coastal marine environment for future generations.
[273]For example, the Fisheries (Kaimoana Customary Fishing) Regulations 1998.
[274]The Supreme Court decision in Takamore, above n 269 is an apt example.
[275]See above at n 119 per Glazebrook J.
[276]Te Urewera Act 2014, s 11.
[277]Te Awa Tupua (Whanganui River Claims Settlement) Act 2017, s 12.
[278]Section 14.
[279]An issue that was left open in Trans-Tasman Resources Ltd v Taranaki-Whanganui Conservation Board [2021] NZSC 127, [2021] 1 NZLR 801, which was argued and decided after the decision in this case was delivered: see at [169], n 282 per William Young and Ellen France JJ and agreed to by Winkelmann CJ at [332], Glazebrook J at [237] and Williams J at [296]–[297]. See also the discussion of Trans-Tasman in the reasons of Glazebrook J in this case above at [111]–[116]. In the present case, the majority overrule the established test for incorporation of custom into the common law, but without saying how it will be replaced: see above [112]–[116] per Glazebrook J, [177] per Winkelmann CJ and [260] per Williams J, although we acknowledge Williams J does address the issues at [261]–[265]. We consider that the test set out in the incorporation cases should not be overruled without the Court being in a position to articulate what replaces it, especially as no counsel argued that it should be overruled.
[280]See above at [111] per Glazebrook J. This was also left open in Trans-Tasman, above n 279.
[281]See above at [123]–[124] per Glazebrook J.
[282]See above at n 64 and n 140 per Glazebrook J.
[283]See above at [120] per Glazebrook J. See also the discussion of this risk above at [181] per Winkelmann CJ and [270]–[272] per Williams J.
[284]Moana Jackson The Māori and the Criminal Justice System: He Whaipaanga Hou – A New Perspective (Department of Justice, Study Series 18, 1988) pt 2 at 110–111.
[285]The criminal process can and does incorporate tikanga-like values and processes in some contexts, for example, restorative justice processes; but in other contexts, the fundamental differences between tikanga Māori and the criminal process as reflected in legislation make that difficult or impossible. There are, therefore, risks in proceeding on a piecemeal basis.
[286]Te Aka Matua o te Ture | Law Commission “Tikanga Māori” < As noted by Glazebrook J above at n 138, the study paper plans to explain tikanga Māori, its sources and its expression in the courts and the Waitangi Tribunal, with the aim of providing a framework for engagement with tikanga Māori within Aotearoa New Zealand’s legal system.
[287]See above at [146] per Glazebrook J.
[288]See above at [184]–[185], [210] and [216]–[228] per Winkelmann CJ and [274] per Williams J.
[289]See above at [49]–[51] per Glazebrook J, referring to R v Smith 2004 SCC 14, [2004] 1 SCR 385 at [50]–[51] per Binnie J who delivered the Court’s unanimous judgment.
[290]See above at [56] per Glazebrook J.
[291]Smith, above n 289, at [50].
[292]See above at [56] per Glazebrook J.
[293]Smith, above n 289, at [50].
[294]At [45].
[295]See above at [52] per Glazebrook J.
[296]See above at [52] per Glazebrook J; and Smith, above n 289, at [50]–[51]. See also Winkelmann CJ’s reasons above at [214].
[297]See above at [52] per Glazebrook J. See also above at [235]–[236] per Williams J, agreeing with Glazebrook J that a “very good reason” will always be required to justify continuation.
[298]See above at [52] per Glazebrook J.
[299]See above at [60] per Glazebrook J. Winkelmann CJ (above at [222]) shares the view that the Court’s earlier grant of an extension of time weighs in favour of allowing continuance.
[300]R v Ellis (1994) 12 CRNZ 172 (CA) (Cooke P, Casey and Gault JJ); R v Ellis (1999) 17 CRNZ 411 (CA) (Richardson P, Gault, Henry, Thomas and Tipping JJ); and Thomas Eichelbaum The Peter Ellis Case: Report of the Ministerial Inquiry for the Hon Phil Goff (Ministry of Justice, Wellington, 2001).
[301]It is relevant to note that the Justice and Electoral Committee Report on Petition 2002/55 of Lynley Jane Hood, Dr Don Brash and 807 others and Petition 2002/70 of Gaye Davidson and 3346 others (8 August 2005) recorded that the appellant had decided to seek leave to appeal to the Privy Council and recommended: first, that the Attorney-General not oppose (or oppose only in principle) an application by Mr Ellis for leave to appeal to the Privy Council; and second, that the Legal Services Agency use their discretion to grant legal aid for the appeal: see at 15–17. This course was not pursued, however.
[302]See above at [62] per Glazebrook J, with whom Winkelmann CJ (above at n 225) and Williams J (above at n 267) agreed.
[303]See above at [63] per Glazebrook J.
[304]See above at [68]–[69] per Glazebrook J.
[305]See above at n 301.
[306]Supreme Court Act 2003, ss 50–51. The transitional provisions in the now repealed Supreme Court Act are preserved by cls 3–4 of sch 5 of the Senior Courts Act 2016.
[307]See above at [70] per Glazebrook J.
[308]See above at [71] per Glazebrook J.
[309]See above at [75] per Glazebrook J.
[310]See above at [79] per Glazebrook J.
[311]See above at [218] per Winkelmann CJ.
[312]See above at [229] per Winkelmann CJ.
[313]See above at [210] per Winkelmann CJ.
[314]See our discussion above at [294].
[315]See above at [143]–[144] per Glazebrook J.
[316]Statement of Tikanga at [85].
[317]At [62] and discussed further at [101]–[105].
[318]See above at [145] per Glazebrook J.
[319]Statement of Tikanga at [107].
[320]At [103]–[104].
[321]At [107].
[322] This is the official death toll as of 16 January 2020.
[323] See s 8 of the Act.
[324] See s 9 of the Act.
44
0
0