The Peter Ellis Decision – and whether Maori customs have any place in the Common Law
In a democracy politicians come and go at the whim of the electorate ( in the case of the present lot the sooner the better). Judges do not. They are appointed for a fixed term and frequently sit beyond that expiry date. One of the judges in the Ellis case is five years beyond the fixed term. Once appointed it is for all practical purposes impossible to remove a judge from office. The trade-off for this unique job security is that Judges confine themselves to applying the law to the facts of the cases that come before them. It is for that reason that Judges used to be selected from those lawyers who had devoted their careers to the practice of the law in the courts and the day-to-day exercise of the common law. That is no longer the case. Of those who sat on the Ellis case one practiced as a solicitor in a large firm specialising in giving tax advice to clients and another who in a recent lecture to the Otago Law Students claimed to have no detailed understanding of the common law seems to have derived his qualifications from having sat on the Waitangi Tribunal arguing from his Maori ancestry and applying whatever legal practices obtain in that forum. Judges providing, they stick to their remit which is to apply the law to the facts of a case are largely immune from the sort of trenchant criticism suffered increasingly by most public figures. If, however they descend from their ivory towers into the arena of political and social engineering then they must expect that their pronouncements will be scrutinised like those of any other public official. This for the obvious reason that they should keep their political and social views to themselves and not allow them to influence their judgments. Such is the case with the recently decided Peter Ellis application for leave to appeal to the Supreme Court from an earlier criminal conviction. The effect of three of the judgments in this case is to introduce Maori customs of uncertain definition and unknowable consequences as they existed in 1840 as a third arm of the common law of New Zealand. These customs are collectively labelled “Tikanga.” The way in which they have been infiltrated into the common law is unprecedented.
Briefly the matters before the Court concerned whether the appellant should be given leave to appeal a 1993 conviction for criminally molesting children at a Christchurch crèche. He was imprisoned for seven years but throughout and to his death in 2022 he denied the charges to the extent of refusing to participate in any Parole Board hearings which might have lead to his early release. He exercised two appeals to the Court of Appeal and was party to two enquires by retired Judges. He then applied for special leave to appeal out of time to the Supreme Court. This leave was granted but Mr. Ellis died before the hearing of the substantive appeal. In the hearing for leave to appeal the question arose should a deceased person be allowed to continue with the proceeding. The court recognised that this involved a consideration of whether the reputation of a deceased person can survive his death. As is clear from the judgments of all five of the judges this is unusual but legally possible by applying existing common law principles from both the United Kingdom and Canada if the interests of justice so require. At the preliminary hearing convened to decide whether or not leave to appeal should be given one of the Judges (no prizes for guessing who) invited counsel for the intending appellant to consider whether or not it would be advantageous to the outcome of their application if what was described as a practise widespread among Maori peoples before 1840 should become a ground for granting the application and allowing the appeal to proceed. The notion put to counsel was that in Maori society a dead person’s reputation good or bad survived their demise. It was given a name “Mana” and said to be part of a Maori system of “law” known as “Tikanga” which was common to all Maori people before the Signing of the Treaty and one which has survived that event. The fact that throughout history a person’s reputation has survived death does not seem to have occurred to the three Justices who were sympathetic to this notion.
As this notion appeared to be encouraged by three members of the Court and, any port in a storm for counsel given what they were seeking was fraught with difficulty it was enthusiastically adopted. A meeting was then convened with a number of Maori elders and academics the purpose of which was to explore the question of whether or not this notion of “mana” and a related idea of “closure “is a part of the common law not of New Zealand but of “Aotearoa/New Zealand.” Given the current Governments’ undeclared push to elevate all things pre–European Maori into mainstream New Zealand life as is evidence by some of the legislation recently passed and the extra judicial writing of Williams J. one of the judges hearing the case it is unsurprising that the members of the group convened advised the Court that “Tikanga” is not only part of the common law of “Aotearoa/New Zealand” but is a separate and third source of law alongside statute law and the common law. In an attempt to clothe this revolutionary finding in some rags of legal respectability the best the Judges could do was to rely on an early nineteenth case about a whaler having a dispute with a Maori landowner. That said the court was forced to concede that the notion of pre 1840 maori customs being part of the common law had not surfaced in any common law context since the signing of the Treaty. The experts told the Judges that the Court was entitled to take into account the “mana” of the appellant and notions of “closure” as understood by pre 1840 Maori tribes in deciding whether or not to allow the appeal to proceed. None of this was relied on by the appellant. It was utterly unnecessary to the outcome of the application for leave and was not part of the reasoning of the majority when it came to deciding the law and facts applicable to hearing the substantive appeal. This did not deter the majority who it is clear were hell bent on using the case as a means of Maorifying the common law. The process was so extraordinary that even Williams J. conceded that the public might consider this to be an “unsuitable case” for such a massive sea change in what are the components of the common law. Justices O’Regan and Arnold both highly experienced Common Law lawyers with years of experience at the bar and on the Bench would have none of it pointing out that the whole excursion into pre 1840 Maori customs was unnecessary to deciding whether or no Mr Elli’s personal representatives should be allowed to continue the appeal for which leave had been given.
This excursion into Maori customs raises a number of questions: What is “Tikanga?” A search of the meaning of the word in the Maori dictionary yields fifteen possible definitions all of which amount to doing the right thing in the circumstances. None of the meanings have anything thing to do with the law as it has been understood and practiced in New Zealand since 1840. Every society throughout time has its customs as a means of surviving both its environment and from the attentions of others. Maori tribes were no different but the world in which persons of Maori extraction now live is unrecognisable for those who lived here in 1840 when they accepted British sovereignty and all that entailed. Obviously, the law must change and adapt to changing circumstances but it is extraordinary to suppose that this should be done by importing concepts some of which are no more than are to be found in any developing society but have no unique contemporary relevance to the lives of New Zealand citizens. One might as well say that attention to good manners and consideration for others should form part of the common law.
Then there is the question of which maori custom to apply in a given case. The majority of the judges accepted that the pre 1840 maori customs to be applied in any case will be decided by experts called to assist the Court. This is quite a different exercise from the ordinary calling of experts to assist the court in deciding on matters outside of its ken such as science, engineering, medicine and the like. Leaving aside questions of cost and delays occasioned by these meetings of “experts” these experts will it seems tell the court how it should decide the case applying Maori customs and the judge will be in no position to decide differently. Where then is the independence of the judiciary and what if there are competing experts, and there will be, litigation being what it is, offering differing views on which cultural practice applies relevant to the facts of the case. This will be compounded in cases where different tribes historically have different practices.
Is customary law restricted to those cases involving only Maoris or may a non-Maori raise the issue or become subject to it if it happens to suit one party to so argue. This is not an idle argument. The Ellis case involved no persons of Maori ancestory, yet the court spilt a lot of ink and effort in introducing Maori customary practices into the common law in this case so presumably the answer is yes.
What is the position where an established common law principle be it civil or criminal does not accord with a Maori cultural practice and a litigant argues that the Maori cultural practice should determine the outcome. For example, in a murder case where the defendant’s defence is one of doing the right thing by revenging a wrong (utu), or one of limiting the role of women in society, or reintroducing slavery, or cannibalism or as a defence to a charge of bigamy. The Chief Justice said in passing that Maori customary practices which do not accord with current standards of behaviour would be excluded. To do so means that the court will be required to pick and choose which Maori cultural practices are part of the common law and which are not. Justice Williams would have none of this. His view is that pre 1840 “Tikanga” in all its variety is part of the common law of “Aotearoa” and furthermore the courts have no jurisdiction to modify any of those practices. In short the Court will be unable to pick and choose.
The Chief Justice and Glazebrook J. recognised some of these difficulties in their judgments but thought they could be worked out on a case-by-case basis. This is an astonishing admission. These are Judges sitting in our highest Court they must know that to have any social acceptance the law must be certain, predictable, and knowable in advance which is why ignorance of the law is no excuse. They must also know that the law must be of universal application without fear or favour affection or ill will or it is nothing. That is the oath they swore on taking office. What is so difficult for them about understanding the meaning of “common” in the description common law. It means no more and no less than the same for everybody. The Common law and British citizenship were the two priceless gifts that Captain Hobson offered to the Maori tribes at Waitangi. The wiser heads among the Chiefs gathered to consider these offers accepted them with alacrity and lived by them for the next one hundred and eighty years resulting in Maori people becoming seamlessly integrated into New Zealand society and major stakeholders in our market economy. Those wedded to their tribal customs and incessant warring did not and their successors to this day are to be found among activists, academics and Marxists politicians with their secret agendas. A virus has been allowed to infect the common law and it has unknowable and unpredictable consequences, but one thing is certain we can no longer refer to the common law because it no longer is common to all New Zealanders. Unless the courts and the law command widespread community acceptance by its impartiality and universal application the door is open to anarchy.
Finally, one wonders if the three judges who have initiated these seismic changes considered the importance of the separation of powers between Parliament and the Courts which is crucial to the health of our democracy. And why go to the trouble of producing a judgment which can have no binding effect on the substantive determination of the appeal. Nothing said about “Tikanga” is binding on any later Court – it is what the law refers to as ‘obiter dicta’ and we thank the judgments of O’Regan and Arnold JJ for pointing that out. The reason being because no part of this excursion into pre 1840 Maori cultural practices was necessary to or relied on by the Court in deciding whether or not the evidence given against Peter Ellis at his trial was sufficient to allow the Jury to convict him. That said they have opened the door to future activist judges to rely on the obiter pronouncements in these judgments and to apply them in later cases for example the pending foreshore and seabed litigation. It is of the deepest concern to contemplate that two of the Judges on our highest Court; Winkelmann CJ and Glazebrook J. appear to have become swept up in the drive by the Maori caucus of the present government to implement their He Pua Pua policies before it is too late and they are ejected from office. Williams J. the other member of the majority has long made no secret in his extra judicial writings of his drive for the courts to recognise Maori customs as part of the law so at least he is consistent if misguided. Willie Jackson the Minister for Broadcasting and who appears to lead the Maori caucus in government and who has probably read the writings of Williams J. knows all this. He has recently rejected a report from who knows whom proposing co government in New Zealand because it is too radical. He now has barely six weeks left in the Parliamentary cycle to introduce new legislation dealing with that deeply unpopular proposition making it unlikely it will ever see the light of day. It is astonishing that the majority of the judges in our highest court would do his work for him by elevating Maori customs to become an equal source of law alongside the common law, and the statutes enacted by Parliament. That is the most unprecedented and blatant descent by three out of five members of our highest Court into matters of crucial social and political import. These judges leave a poison challis for their successors with unknowable malign social consequences. It will now be left to Parliament by legislation to reinstate the commonality of Judge made law.