Sasha Borissenko: Should Peter Ellis appeal be heard from beyond his grave?

Peter Ellis has won the right to go to the Supreme Court to try to clear his name - from beyond the grave. Photo / Peter Meecham

It has been just over a year since Peter Ellis died of cancer. He was 61. He was sentenced to 10 years' imprisonment and was found guilty of 16 counts of sexual offending against seven (and what was later to become six) child complainants in 1993.

He lost his case in the Court of Appeal nearly 20 years ago, but last week the Supreme Court concluded that the case will go ahead, withholding their reasons for granting continuance until a substantive decision is held.

Under conventional New Zealand law, a person's appeal rights die with them.

This case is unusual for a variety of reasons: Ellis had already applied for leave from the Supreme Court and it was granted before he died. At the hearing on whether the case should continue beyond death, Justice Glazebrook asked about whether tikanga was relevant and the court requested further submissions on the matter.

Peter Ellis appeal in a nutshell

Ellis' legal team enlisted the help of Kāhui Legal partner Natalie Coates and Kingi Snelgar, barrister at Manuka Law to assist. To ensure that tikanga principles (if held to be legally relevant) were applied correctly, the Ellis legal team together with the Māori Law Society and the Crown enlisted the support of tikanga experts to guide them on how tikanga principles would apply to this case. Over a carefully thought-out two-day wananga designed to be a culturally safe way of drawing on tikanga, the concept of mana came to the fore.

"Mana is a complex concept that is intertwined within a web of other tikanga principles. However, English words that are often used in association with the term "mana" are: prestige, standing, authority, status, reputation. In te ao Māori where mana has been impacted there is an intergenerational need to find a sense of balance if there has been any wrongdoing.

"This transcends death. In fact on the marae we still argue about transgressions of mana going back centuries. In this case, we do not know where the injustice sits - whether Peter Ellis did the offending or whether he was convicted unjustly - but it is an issue that should be aired and be heard in our highest court," Coates says.

The fact that Peter Ellis had no ties to Māori is not necessarily an issue. It was not asserted that Mr Ellis as a non-Māori can draw on tikanga as of right. Coates explains that "There are different streams where tikanga can intersect in common law. The law has long recognised that customary rights and interests can be recognised by the state legal system – these rights are reserved for Māori only."

However, the argument in this case was that tikanga Māori can inform the interpretation and development of the law more generally.

That is, when developing the law in our unique New Zealand context, not only can the court draw on key principles from England but also tikanga principles and legal thought.

Tikanga can't be used willy-nilly

"There is a misunderstanding by some that you can pluck tikanga out of thin air. However, much like the common law, [tikanga] requires reference to fundamental and long-standing principles that have existed since time immemorial and also draws on precedent and past practice," Coates says.

"When drawing on tikanga there is always a risk of tokenism and misinterpretation. That is why it is important to ensure the integrity of tikanga is protected, and that Māori and experts are actively involved in the process. "

Former Act MP and lawyer Stephen Franks proposed that incorporating tikanga in New Zealand law would create inherent uncertainty in New Zealand law.

But Coates says tikanga is not a new concept, it is the first law of Aotearoa and it has been recognised as part of New Zealand law since before 1840.

"And just because tikanga has not always been written down, it does not undermine its value. I'd argue it is wrong to assume written sources are more true that oral ones. Written sources often capture a moment or perspective from a single person. Tikanga ideas have been passed through generations and practised again, and again.

"If we were successful in our arguments in this case it wouldn't automatically overturn the law in other areas such as defamation for example [that you cannot defame the dead]. The law in New Zealand is developed slowly on a case-by-case basis."

In fact the 2012 Supreme Court case of Takamore v Clarke denounced the "false antithesis" between common law and tikanga Māori. It was Chief Justice Elias who said "Māori custom according to tikanga is … part of the values of the New Zealand common law."

Where to from here?

Tikanga is nothing new to the New Zealand legal system - only in this case, it's a dead white man's mana that might be restored.

Should tikanga extend to non-Maori?

Like many issues relating to diversity, it depends on whether those in power decide to do so meaningfully.