Whakamāramatanga Series: Supreme Court considers place of tikanga in the law - judgment on continuation of Ellis appeal

On October 7, the Supreme Court released its judgment unanimously quashing Peter Ellis' historical sexual offending convictions because a substantial miscarriage of justice had occurred.¹ At the same time, it released a separate judgment setting out the reasons for its earlier decision to allow that appeal to proceed despite Mr Ellis' death.²

In the judgment relating to the continuation of Mr Ellis' appeal, the Supreme Court considered the place of tikanga in the law. In our update below, we address the key points concerning tikanga and the law arising from the judgment, including the context in which tikanga arose in the case, how the Court ascertained the relevant tikanga, and how the Court ultimately applied tikanga.

What did the judgment say about tikanga?

The key points were that:

• The Court was unanimous that tikanga has been and will continue to be recognised in the development of the common law of New Zealand in cases where it is relevant. Notably, this was simply a confirmation by the Court, rather than a new development. 

• In terms of when tikanga may be relevant in a case, the Court recognised that, in addition to its inclusion in the common law, tikanga frequently now forms part of New Zealand law as a result of being incorporated into specific statutes and regulations. In a common law context, Williams J noted that the relevance of tikanga to a dispute may depend on the identity of the parties, the dispute's particular setting, or any other reason. It may also be that the nature of the dispute raises wider policy questions which a tikanga perspective may help to answer. Williams J suggested tikanga may be relevant if an area of the common law is developing, and such development would benefit from a consideration of relevant tikanga principles.

• Consistent with the above, the Court unanimously recognised that tikanga may be relevant in the exercise of judicial discretions (which was the context in this case – see further detail below).

• The Court (by majority of Winkelmann CJ, Glazebrook and Williams JJ) held that the colonial tests for incorporation of tikanga in the common law should no longer apply. This is because the colonial tests import the (wrong) view that law inherited from the United Kingdom should be presumptively dominant and that tikanga can be "judged" by reference to its consistency with Western values. Rather, the relationship between tikanga and the common law will evolve over time and in context. Specifically, this means that past requirements for tikanga to be recognised or incorporated (such as those apparent in the 1908 case of Public Trustee v Loasby) have been confined to history.

• Winkelmann CJ, Glazebrook and Williams JJ also:

  • Accepted that tikanga was the first law of New Zealand and that it continues to shape and regulate the lives of Māori.

  • Cautioned that the courts must not exceed their function when engaging with tikanga, so as to not impair the operation of tikanga as a system of law and custom in its own right. As Williams J noted, the courts do not have the mandate nor expertise to "declare" the content of tikanga in the way that they authoritatively declare the common law. In New Zealand's system where tikanga has force and integrity with or without the common law, he said, "judges must be comfortable engaging with tikanga principles yet understand that they cannot change tikanga. And while they may apply tikanga in appropriate cases they must also understand that they cannot authoritatively declare it for general purposes".³

  • Commented that the appropriate method of ascertaining tikanga (where it is relevant) will depend on the circumstances of the particular case. Williams J acknowledged it may seem unhelpful to say the approach to both relevance and application will depend on context, but "there is no getting past that fact".

While O'Regan and Arnold JJ accepted the central proposition that tikanga is recognised in the common law of New Zealand in cases where it is relevant, they were not prepared to go much further than that. They did not consider this a suitable case to opine in a general sense about the incorporation or application of tikanga in the common law of New Zealand. This included because tikanga had come before the Court in this case in an uncontested environment where no party had argued that tikanga was irrelevant to the question of continuing the appeal, and where no lower court had made a decision on the point.
 
While O'Regan and Arnold JJ also noted Te Aka Matua o te Ture | the Law Commission's upcoming study paper on tikanga and its place in New Zealand's legal landscape, and considered it was preferable not to make obiter comments on this issue given that project is underway.

What was the context for the consideration of tikanga in this case?

The Supreme Court had allowed Mr Ellis a right to appeal his convictions in July 2019, but he died in September 2019 before the Supreme Court heard the substantive appeal. The parties and the Court accepted that there was no existing Supreme Court authority, nor was there any legislative provision or rule, directly addressing whether an appeal against conviction could continue in the Supreme Court following the death of an appellant.
 
It was instead agreed that determining whether or not an appeal could and should continue in this circumstance was a matter of discretion for the Supreme Court under r 5(2) of the Supreme Court Rules 2004. The Court held that the appropriate test when exercising that discretion was whether allowing the appeal to continue would be in the interests of justice.
 
The Crown argued that the interests of justice clearly favoured bringing the appeal to an end. Counsel for Mr Ellis took the opposite view.
 
One of the factors which Counsel for Mr Ellis submitted the Court should take into account (and weighed in favour of continuation of the appeal) was the interests of the appellant's family in clearing his name. In the course of argument on that point, a question from the Court raised the issue of how tikanga might factor into this analysis. Glazebrook J's judgment sheds further light on the potential thought process behind that question, stating:⁴

"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. … 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."

How did the Court find out what the relevant tikanga principles were?

Following the Court's question on the relevance of tikanga, the hearing was adjourned to allow further submissions on tikanga.
 
Counsel for the parties conferred and agreed to convene a two-day wānanga (deliberation/forum) with nine mātanga tikanga (tikanga experts) to discuss whether tikanga was relevant; if so, which aspects; and how those aspects of tikanga ought to be taken into account. The mātanga tikanga then produced a Statement of Tikanga, authored by pre-eminent scholars Sir Hirini Moko Mead and Sir Pou Temara. All of the mātanga tikanga who attended the wānanga supported the Statement and its content was undisputed by the parties. A copy of the Statement is attached to the judgment.

Will a wānanga and multiple mātanga tikanga always be required to establish tikanga?

While the two-day wānanga with pre-eminent experts was used in this case, the majority noted that such an intensive process will not always be practical or necessary. This is especially where, as Williams J pointed out, the courts are no longer entirely "tikanga-naïve". It may be that where the context requires, parties could look instead to eminent texts, or Waitangi Tribunal reports, or use existing procedural rules for calling expert evidence about the relevant tikanga and how it should apply. Reports produced as part of Te Aka Matua o te Ture | Law Commission's tikanga project noted above are likely to be a further useful resource.

How did the Court ultimately apply tikanga in the case?

Glazebrook J (and O'Regan and Arnold JJ)
 
Glazebrook J endorsed the factors set out in a Canadian decision R v Smith as the test for continuance of appeals, and concluded that the application of tikanga led her to the same conclusion on the appeal as the weighing of the R v Smith factors. However, she did consider the submissions on tikanga were beneficial in helping to clarify her view on the appropriate test in appeal continuance cases and justified her additions to the test of the reputational issues relating to the deceased appellant, the deceased appellant's whānau and the interests of the victims and their whānau. Further, the tikanga principles led to the strengthening of Glazebrook J's conclusions on the appeal continuance factors where they were relevant, and Her Honour commented that the concept of reaching a state of ea (settlement/fulfilment) was useful in the overall balancing of the interests of justice.
 
While not relying on tikanga, O'Regan and Arnold JJ also adopted the factors set out in Glazebrook J's continuance test. However, applying those factors they determined that the interests of the complainants and their whānau in finality of justice far outweighed any other factor in favour of continuance, and that as such they would not have allowed the appeal to continue.
 
Winkelmann CJ and Williams J
 
Winkelmann CJ noted the convergence of the common law values of finality in litigation and addressing miscarriages of justice with the concepts of tikanga relevant to the appeal. Ultimately, she set out a list of principles (endorsed by Williams J) to be weighed when assessing whether an appeal should continue in the interests of justice. This list drew on common law principles, overseas authorities, r 5(2) of the Supreme Court Rules and tikanga principles to build a symbiotic and mutually reinforcing framework.

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