By Kate MacKay

The case of Peter Ellis is one of the most well known in New Zealand. Widely regarded as one of our most “egregious” miscarriages of justice, the case has been subject to much controversy and debate from the moment Ellis was arrested through each of his subsequent appeals.[1] Its impact was such that it has even been listed as a causal factor for the lack of male teachers in New Zealand,[2] and was linked to a wider so-called ‘moral panic’ over abuse in childcare that swept the globe in the 1980’s and 1990’s.[3] However, the latest development in the case could be its biggest legacy — it could become the first case in New Zealand’s legal history to meaningfully solidify tikanga as part of our common law.

 Case Background 

In the latter half of the twentieth century, the number of children in childcare rose alongside the number of newly working mothers.[4] Concerned about leaving their children with relative strangers, worried parents were then more ready to believe accusations of misconduct in these childcare centres, and the Kern County child abuse case in California eventually led to a domino effect of similar cases sprouting up worldwide.[5]

This reached New Zealand in 1991, when a child at the crèche where Peter Ellis worked told his mother, who had written a handbook on child sexual abuse, that he didn’t like Ellis’ “black penis”.[6] A full police investigation was launched, which turned up nothing of interest.[7] However, the child’s mother told other parents what had happened, and soon hundreds of parents from the crèche requested their children be interviewed. The police consequently reopened their investigation, and Ellis was charged with forty five counts of sexual abuse, sixteen of which he was eventually convicted of.[8]

Multiple aspects of the case have been widely criticised. Later investigations revealed that the children were exposed to circumstances “known to contaminate children’s accounts of either experienced or imagined events”, including parents preparing answers for their children and the use of highly leading and suggestive interviewing techniques.[9] In addition, some accusations were extremely far-fetched, many of which were not told to the jury for fear of the prosecution’s case losing credibility.[10] These included children being suspended in cages hung from the ceiling, being sent down trapdoors into a maze and having needles inserted into their genitals.[11]

Appeals

Ellis appealed his convictions several times with little success. Both of his Court of Appeal cases were denied, although in the first appeal three of his sixteen convictions were overturned due to one of the children admitting her parents coerced her into making untrue complaints.[12]

Other attempts at appeal, including petitions to the Governor-General and several Ministers of Justice, were also fruitless. However, several authorities along the way made it clear that there were serious issues with the original case, including the Court of Appeal[13] and retired High Court judge Sir Thomas Thorp.[14]

Today: Supreme Court Appeal and Tikanga

The most recent appeal was given the green light by the Supreme Court in 2019. Unfortunately, before the appeal could be heard, Ellis died of cancer. Aware of Ellis’ cancer, the Court had already earlier decided to hold a hearing in November 2019 regardless. It was at this hearing that Justices Glazebrook and Williams raised the question of whether tikanga could justify hearing Ellis’ appeal posthumously.[15] 

It is the general position in common law countries like New Zealand that a person’s right to trial or appeal dies with them.[16] The rationale is that a dead person cannot represent themselves, and therefore a fair trial would not be possible; not to mention divert resources away from the living. Here, the question asked was whether tikanga could alter this common law principle.

A Tikanga Overview

Broadly speaking, tikanga is a framework that denotes the correct way of doing things, using a series of guiding principles and values. It is regarded by many as the first law of New Zealand and continues to be practiced today. Tikanga as a practice is inherently flexible and adaptable, with context being key in determining the appropriate course of action. It is underpinned by several important concepts, with the most relevant in this context listed below.[17] While these concepts do not have direct English translations, below are also the English words that best describe them:[18]

• Whanaungatanga: kinship

• Mana: standing, prestige, power

• Whakapapa: family lineage

• Hara: a wrong

• Ea: finality

Tikanga and the Common Law 

Tikanga’s status in the common law has changed greatly over the course of New Zealand’s legal history. It was first acknowledged in the 1847 case of R v Symonds, where indigenous land rights were recognised.[19] However, this decision was turned on its head by the infamous Wi Parata v Bishop of Wellington case in 1877, where Justice Prendergast called Māori “primitive barbarians” and ruled that there was no recognisable Māori customary law.[20] This was still used as good law as recently as 1963, and set a damaging precedent for the treatment of tikanga in the common law.[21]

The 1907 Privy Council decision Nireaha Tamaki v Baker, however, diverted from Wi Parata and suggested potential recognition, but it wasn’t until Public Trustee v Loasby in 1908 that a test was established to determine whether Māori customary law could be invoked at common law.[22] However, even this seemingly progressive tool of establishing tikanga in the common law was problematic, as it relied heavily on the discretion of the inherently colonial judiciary, and was limited in the sense that the customary law couldn’t go against any statute — many of which had been deliberately written to exclude any recognition of tikanga.[23] 

It wasn’t until the latter part of the twentieth century that “limited customary right[s]” began to be recognised.[24] The 1980s saw a string of cases where tikanga was discussed and recognised, to a certain extent. However, tikanga remained without definitive common law incorporation until the 2012 Supreme Court decision of Takamore v Clarke.[25] While the argument for tikanga was denied, Chief Justice Dame Sian Elias declared that “Māori custom according to tikanga is therefore part of the values of the New Zealand common law.”[26]

Tikanga Today 

While Takamore was a significant decision for tikanga and its place in the common law, it was still far from groundbreaking. Chief Justice Elias’ comments, while important, were written in dissent from the majority judgement and were quite ambiguous. However, they left open the possibility of a future case possibly establishing an extraordinary precedent in New Zealand common law for tikanga. For groundbreaking change to happen at common law, judges often have to wait for a case that is the ‘perfect storm’. Few could have forecasted the Peter Ellis case, with no obvious links to tikanga, would be just that.

Tikanga in the Peter Ellis case

As requested by the judges, submissions were made in June this year arguing for and against tikanga being triggered in Ellis’ appeal.[27] Ultimately, in September, the appeal was allowed to continue — however, the court reserved their reasoning until the full appeal has been heard.[28]

Key Arguments: For

Counsel for Peter Ellis, Natalie Coates, broadly argued that tikanga is indeed an enforceable part of the common law and can inform its development.[29] She said that the courts are the “weavers” of the fabric of the law in New Zealand, and tikanga is another thread that can be used, alongside the thread of the British common law, in developing a distinctive law for Aotearoa.[30]

She argued that tikanga meant death should not end an appeal, as a person’s mana “transcends death.”[31] She said that the mana of both Ellis and his family had been affected by a hara, and now that an appeal had begun to address this hara, it needed to continue to reach a state of ea.[32] This also relates to the concept of whanaungatanga, in the sense that when something affects an individual, it affects those around them, too.[33]

In addition, Coates said that Ellis being Pākehā was irrelevant, as under tikanga everyone has mana, regardless of their ethnicity.[34] 

Key Arguments: Against

Appearing for the Crown was Una Jagose, Solicitor-General of New Zealand, who agreed that tikanga was a part of the common law.[35] However, she argued that in this particular case, ea “can still be reached even when one or both parties involved in an incident remain disgruntled with an outcome”[36] and that another hara could be committed against the victims’ mana if the appeal was to continue.[37] She said that a conclusion had already been reached, as evidenced by previous appeals.[38]

Key Arguments: Intervener

The Māori Law Society, acting as a neutral third party, largely supported the arguments of Coates. They particularly emphasised the fact that the appeal process had already begun, and if it were to end solely because of Ellis’ death, it would leave the hara in a state of unbalance and a state of ea would not be achieved.[39] They also raised the point that the mana of those passed may be of increased importance since they are no longer around to defend it.[40]

Is There Precedent for Posthumous Appeals? 

New Zealand has no legal precedent for posthumous appeals. However, the Rua Kēnana Pardon Act was passed in December 2019, which officially pardoned the Tūhoe prophet and apologised for the lasting damage done by wrongfully convicting him in 1916.[41]

Turning to international precedent, the Canadian Supreme Court left open the possibility for a posthumous appeal to go ahead where it is in “the interests of justice” to proceed.[42] Justifications range from the appeal being in the public interest to the appeal relating to a systemic issue in the administration of justice.[43] However, they stressed that this jurisdiction should be sparingly used.[44]

In March earlier this year, Scotland allowed the family of Abdelbaset al-Megrahi to pursue a posthumous appeal of his conviction on the basis that a miscarriage of justice had occurred. He was convicted of the mid-air bombing that caused a flight to crash in the small Scottish town of Lockerbie in 1988.[45] 

Therefore, while there is precedent for appeals continuing after death, it is extremely rare and requires an overwhelming justification for doing so. The general consensus remains that when someone dies, so too do their rights to appeal.

Significance of the Peter Ellis Case for Tikanga

This case is groundbreaking for tikanga in New Zealand law because it was not originally a case about tikanga. Much of the past precedent for tikanga in New Zealand has come from cases where issues of tikanga were either the main focus or directly relevant. Here, tikanga was not involved in the case in any way until Ellis’ death. It was raised on its own, in the appeal of a Pākehā man, as sole authority of how a new principle could be formed in New Zealand’s common law.

While the Supreme Court is withholding its exact reasoning for allowing the posthumous appeal, it is already clear that the highest court in New Zealand has begun the journey of recognising tikanga as its own force within the common law.

Conclusion

The case of Peter Ellis has been fraught with issues from the beginning. It is one of New Zealand’s most fiercely debated cases, with some believing it to be an awful case of sexual abuse, and others believing it to be a gross miscarriage of justice. However, there is now the potential for the case’s biggest impact to be one that virtually no one could have predicted on that autumn day in 1992: a groundbreaking use of tikanga in New Zealand’s common law. Only time will tell how the appeal decides, but what is certain is that this is a meaningful step in the right direction for the future of tikanga in New Zealand law.

 The views expressed in the posts and comments of this blog do not necessarily reflect those of the Equal Justice Project. They should be understood as the personal opinions of the author. No information on this blog will be understood as official. The Equal Justice Project makes no representations as to the accuracy or completeness of any information on this site or found by following any link on this site. The Equal Justice Project will not be liable for any errors or omissions in this information nor for the availability of this information. 

Featured image source: Stuff

[1] Martin Van Beynen “Supreme Court decision on Peter Ellis appeal is potentially groundbreaking” (2 September 2020) Stuff <https://www.stuff.co.nz/national/crime/300097378/supreme-court-decision-on-peter-ellis-appeal-is-potentially-groundbreaking>.

[2] Natasha Harris “Schools ‘need to appeal to boys’” (22 April 2006) New Zealand Herald <https://www.nzherald.co.nz/northern-advocate/news/article.cfm?objectid=10938495>.

[3] Breakfast “As dying Peter Ellis appeals child sex rituals convictions again, court should consider 'moral panic' of the '90s, ex-lawyer says” (31 July 2019) One News <https://www.tvnz.co.nz/one-news/new-zealand/dying-peter-ellis-appeals-child-sex-rituals-convictions-again-court-should-consider-moral-panic-90s-ex-lawyer-says>.

[4] Margaret Talbot “The Lives They Lived: 01-07-01: Peggy McMartin Buckey, b. 1926; The Devil in The Nursery” (7 January 2001) New York Times <https://www.nytimes.com/2001/01/07/magazine/lives-they-lived-01-07-01-peggy-mcmartin-buckey-b-1926-devil-nursery.html>.

[5] Talbot, above n 4.

[6] Martin Van Beynen “Civic Creche: Sexual abuse or abuse of justice?” (02 August 2019) Stuff <https://www.stuff.co.nz/national/crime/114665914/civic-creche-sexual-abuse-or-abuse-of-justice>.

[7] Felicity Goodyear-Smith “Civic Creche Case, Christchurch” (1993) IPT Journal <http://www.ipt-forensics.com/journal/volume5/j5_4_3.htm#en1>.

[8] Van Beynen, above n 6.

[9] The Family Law Blog “False Sexual Abuse Allegations - Lessons from the Peter Ellis Case - Part 1B” (19 May 2010) <http://thefamilylawblog.blogspot.com/2010/05/false-sexual-abuse-allegations-lessons.html>.

[10] David McLoughlin “Second Thoughts on the Christchurch Civic Crèche case:

Has justice failed Peter Ellis?” (August 1996) North and South <https://web.archive.org/web/20190116170808/http://peterellis.org.nz/1996/1996-08_NorthAndSouth_SecondThoughtsOnTheCrecheCase.htm>.

[11] The Detail “Peter Ellis - his court appeal dies with him” (02 August 2019) Newsroom <https://www.newsroom.co.nz/@podcast-the-detail/2019/08/02/710926/the-peter-ellis-satanic-sex-case#>.

[12] Van Beynen, above n 6.

[13] R v Ellis [2000] 1 NZLR 513 at 525.

[14] Alison Horwood “Report noted need for further look at Ellis case” (16 March 2001) New Zealand Herald <https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=177673>.

[15] Joel MacManus “Peter Ellis appeal derailed by legal curveball on possible tikanga Māori approach” (15 November 2019) Stuff <https://www.stuff.co.nz/national/117435500/peter-ellis-appeal-derailed-by-legal-curveball-on-possible-tikanga-mori-approach>.

[16] Māmari Stephens “Rāhui, mana, and Peter Ellis” (26 July 2020) E-Tangata <https://e-tangata.co.nz/comment-and-analysis/rahui-mana-and-peter-ellis/>.

[17] Ellis v The Queen [2020] NZSC Trans 19 SC 49/2019 at 28.

[18] Māori Dictionary <https://maoridictionary.co.nz/>.

[19] R v Symonds (1847) 1 NZLR 680.

[20] Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) SC 72.

[21] Emma Marguerite Gattey “Do New Zealand Courts Regard Tikanga Māori as a Source of Law Independent of Statutory Incorporation? Or is Anglo-inspired Common Law Still “the sole arbiter” of Justice in New Zealand?” (LLB(Hons) Dissertation, University of Otago, 2013) at 24.

[22] Linda Te Aho “Tikanga Maori, historical context and the interface with Pakeha law in Aotearoa/New Zealand” (2007) 10 Yearbook of New Zealand Jurisprudence 10 at 12.

[23] At 13.

[24] Te Weehi v Regional Fisheries Officer [1986] 1 NZLR 680 (HC) at 693.

[25] Martin Van Beynen “The Peter Ellis case and Māori customary law” (09 July 2020) Stuff <https://www.stuff.co.nz/national/122056368/the-peter-ellis-case-and-mori-customary-law>.

[26] Takamore v Clarke [2012] NZSC 116 at 94.

[27] Meriana Johnsen “Supreme Court hears why appeal of deceased sex offender Peter Ellis should go ahead” (25 June 2020) Radio New Zealand <https://www.rnz.co.nz/news/national/419833/supreme-court-hears-why-appeal-of-deceased-sex-offender-peter-ellis-should-go-ahead?fbclid=IwAR3LtjO5gys0xrU9G4lbxLZBJNio5AeTdTRrcP9zxc0rW7lwIlLZm8-Nb1w>.

[28] Van Beynen, above n 1.

[29] Ellis, above n 17, at 5.

[30] At 6.

[31] At 30.

[32] At 29.

[33] At 11.

[34] At 16.

[35] At 33.

[36] At 37.

[37] At 34.

[38] At 36.

[39] At 62.

[40] At 64.

[41] Sam Farrell “Rua Kenana officially pardoned 103 years after imprisonment” Newshub <https://www.newshub.co.nz/home/new-zealand/2019/12/rua-kenana-officially-pardoned-103-years-after-imprisonment.html>.

[42] R. v. Smith, [2004] 1 S.C.R. 385, 2004 SCC 14 at 32.

[43] At 50.

[44] At 20.

[45] Alasdair Soussi “Ghosts of Lockerbie stirred with prospect of posthumous appeal” (17 March 2020) Al Jazeera <https://www.aljazeera.com/indepth/features/ghosts-lockerbie-stirred-prospect-posthumous-appeal-200316165937575.html>.