Peter Ellis appeal derailed by legal curveball on possible tikanga Māori approach

Thursday, 14 November 2019

A legal curveball has delayed a Supreme Court decision on whether Peter Ellis' appeal against his 1993 convictions can continue after his death. 

Ellis, 61, died in September after battling advanced bladder cancer. He had been fighting to clear his name some 26 years after he was convicted of sex offences against seven children at the Christchurch Civic Creche.

The Supreme Court is now considering whether there are special circumstances that would allow the appeal to continue.

It would be the first time an appeal has continued after death in New Zealand. 

**READ MORE:

* Peter Ellis' appeal must still be heard

* Christchurch Civic Creche accused Peter Ellis dies while appealing conviction

* Civic Creche: Sexual abuse or abuse of justice?**

Ellis' lawyer Robert Harrison pointed to a Supreme Court decision in Canada, where the court ruled on two circumstances where an appeal could continue after death. 

The first circumstance was if there was a significant legal issue that needed to be resolved.

Harrison argued there were multiple issues with the way the very young children involved had been questioned, which could have led to exaggeration, made-up stories, and potentially false memories. 

He wanted the case to proceed so the court could set a precedent on the proper way for courts to accept evidence from young children. 

Crown lawyer Una Jagose said this was unnecessary, as the scientific understanding and law around memory and young children had already moved on since the first trial in 1993.

There were now different processes for questioning very young children, and regulations for judges to warn juries that children's testimony may not be fully accurate. 

Harrison said there were still ongoing issues that could be clarified by a Supreme Court ruling. 

The second circumstance was if there were other people affected. 

Ellis' mother and some of his Civic Creche coworkers were named by children in the case. Though they were not convicted, an appeal would help to clear any doubt surrounding them. 

The Crown argued that his mother's and coworker's interests in the appeal were not as strong as Ellis' had been, and did not outweigh the interests of the victims. 

Courts in commonwealth countries have traditionally considered that someone's interest in an appeal ends when they die, as it will not affect them either way. 

But Justices Joe Williams and Susan Glazebrook threw a curveball into the arguments from both sides when they suggested that New Zealand didn't need to follow decisions set in any other country, and could establish an entirely new rule based on tikanga Māori.

'There's nothing to say that the appellant's case dies when they do … This is a very western idea that on demise you have nothing to protect,' Williams said. 

'If we are serious about tikanga, should New Zealand divert from that very anglo approach?' 

'In a tikanga context … an ancestor has even more reputation to protect. There's more tapu, more mana to protect.'

This generated some heated discussions across the bench, as Justices debated whether that would open the floodgates for too many cases to be brought forward, and asked for someone to find some statistics. 

Neither side had prepared arguments either for or against a tikanga approach when preparing for the hearing, though the Crown did concede that it was something 'the court must be open to'.

The case was adjourned for five weeks to allow both sides to bring submissions addressing the issue of tikanga, and will continue in the new year.