Tikanga could be appropriate for posthumous appeals law?

From Gezza:

Peter Ellis, controversially convicted of child sexual abuse in the Christchurch Civic Creche case, died of advanced bladder cancer before his appeal, seeking to clear his name, could be heard.

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 Justice Joe Williams threw a curveball into the arguments from both sides when he 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.

“If we are serious about tikanga, should New Zealand divert from that very anglo approach?” he said. “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 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.

https://www.stuff.co.nz/national/117435500/peter-ellis-appeal-derailed-by-legal-curveball-on-possible-tikanga-mori-approach
… … …
This is an interesting development. Given that not just Peter Ellis is affected by his conviction, if in fact he was wrongly convicted. His family are too.

The only other circumstances I can think of off hand where a person subsequently held to have been wrongfully convicted has had their convictions effectively quashed – long after their deaths (by execution) – have occurred as pardons, as part of Treaty Settlements (Mokomoko, Kereopa Te Rau).

Rua Kēnana was wrongfully convicted of sedition & sentenced to a year in prison, then released. Eventually Rua moved to Matahi, a community he had founded on the Waimana River in the eastern Bay of Plenty in 1910, where he lived until his death on 20 February 1937, and was survived by five wives, nine sons, and 13 daughters. – Wikipedia

These pardons haven’t generated a flood of requests for posthumous pardons as far as I know.

I think the suggestion that NZ could develop its own law around this situation, rather than simply follow British law – as I assume we do – is a good one & look forward to seeing the Court’s eventual decision & reasoning.

Leave a comment

20 Comments

  1. Gezza

     /  15th November 2019

    Just a correction, sorry – Rua Kēnana was not executed. He was wrongfully convicted of sedition & sentenced to a year in prison, then released. Eventually Rua moved to Matahi, a community he had founded on the Waimana River in the eastern Bay of Plenty in 1910, where he lived until his death on 20 February 1937, and was survived by five wives, nine sons, and 13 daughters. – Wikipedia

    [Post corrected – PG]

    Reply
  2. Yay, more reasons for pointless legal appeals. With the relatives brought in as defendants we can now relitigate all the old trials and demand exonerations as the evidence produced a generation ago simply isn’t fit for purpose today. No DNA analysis, no CCTV footage. No sure conviction.
    And the judges get to spend days sitting around scratching their arses, ignoring the problems of 2019 while sorting out cases from 1979. Brilliant.

    Reply
    • Gezza

       /  15th November 2019

      While there might be a case, in some instances, for the law to be time-bound, arty, personally – I don’t think justice should be.

      Reply
  3. This is a very interesting thing for the Supreme Court to consider.

    It may come down to whether tikanga is allowed for in interpretations of our current law. If not then it would require a law change.

    While Gezza cites several cases involving Māori men I think the Peter Ellis case would be a good one to set a precedent on tikanga, as it would make it clear the concept is available to and can apply to everyone regardless of race – one law for all.

    I don’t think that they should be concerned with ‘opening floodgates’ – if there are a lot of cases deserving of being addressed via tikanga then they should be addressed.

    They don’t ignore drug offences or burglaries to avoid floodgates being open.

    Reply
  4. For my benefit (I’m learning on this):

    tikanga

    1. (noun) correct procedure, custom, habit, lore, method, manner, rule, way, code, meaning, plan, practice, convention, protocol – the customary system of values and practices that have developed over time and are deeply embedded in the social context .

    Ko ngā pereti kai he rourou; kāore he paoka, kāore he naihi, arā i tino whakaritea katoatia ki tā te Māori tikanga (TP 1/12/1900:14). / The eating plates were flax food baskets; there were no knives and forks, that is everything was organised according to Māori custom.
    Ko ngā tikanga pai e tika ana kia puritia kia mau, hei tikanga mau tonu mō ngā whakatupuranga, ahakoa tikanga whenua, taonga rānei, mahi ā-ringa, whai kai rānei, ngā whakahaere o te pakanga, ōna tūwaewae rānei, ehara anō hoki i te tikanga kino ngā tikanga Māori (TPH 30/8/1902:3) / It is right that the beneficial customs should be retained as lasting practices for future generations, whether they be customs relating to land or property, crafts or procuring food, the procedures for conducting war or for visitors, and Māori practices are not bad ones.

    Reply
  5. Corky

     /  15th November 2019

    Great idea..or another activist judge?

    Reply
    • Gezza

       /  15th November 2019

      It’s an idea worth considering Corky, in my view.

      British law seems heavily weighted towards the individual, so when the individual dies their rights to redress for wrong seem presumed to have expired with them as no longer needed.

      It’s not something I’ve ever thought about before, but imagine that you were wrongly convicted of a despicable offence you didn’t actually do. Your immediate & even ypur extended family can’t help being burdened or tarred to some extent with the shame you brought upon them, and the anger, if they KNOW you didn’t do it – and they can now prove it, or at least prove you should not have been convicted by an unfair trial.

      This is not something confined to Maori because of whakapapa

      Perhaps it would be worth our considering the rights of the family and/or the descendants?

      Reply
      • Kitty Catkin

         /  15th November 2019

        They can do that now; people are given posthumous pardons, like the soldiers who were shot as deserters.

        It’s unfortunate that some people misunderstand the meaning of a legal pardon.

        Reply
        • Kitty Catkin

           /  15th November 2019

          I think that it should be for the individual; if the person didn’t have any family, the wrongful conviction was no less wrong than it would have been if they had. Why should someone who has a family be considered to be more worthy of consideration than someone who has none ? The horror of wrongful imprisonment or execution is the same for everyone.

          Reply
  6. Kitty Catkin

     /  15th November 2019

    Psthumous pardons exist now, as far as I know, so why make a law for something that is already in law ?

    Reply
    • Kitty Catkin

       /  15th November 2019

      They do.Surely Joe Williams is aware of this.

      I can’t see that it’s any worse for a Maori family to have a member wrongly accused than it would be for a Pakeha one. The Pakeha relations would feel the same distress as Maori relations would. It’s absurd to make a claim that one race is more sensitive than another when it comes to this kind of thing.

      To grant it to one person because of their race and not to another from a different race would be outrageous. It’s the conviction that’s being overturned and that should not be affected by race.

      Reply
      • Gezza

         /  15th November 2019

        Pardons, I think, do not necessarily quash convictions.

        Reply
      • Gezza

         /  15th November 2019

        Did you read the article, Kitty?

        I skimmed it quickly so might have missed it, but I didn’t see where Ellis was said to be Maori.

        Joe Williams has raised an interesting point of law which Is why should it be assumed established British law is the be all & end all of justice.

        Reply
        • Kitty Catkin

           /  15th November 2019

          It sounded as if he was Maori.

          Reply
          • Kitty Catkin

             /  15th November 2019

            A legal pardon absolves the person of guilt, so would appear to be the same as the conviction being quashed.

            As the mechanism for this exists, I see no point in rewriting an existing law. Pardons happen in other countries; it’s not just a British thing.

            Reply
  7. Duker

     /  15th November 2019

    Wouldnt it be better if the deceased were to be still to be legal persons that parliament make specific provision saying so . There is the little little problem of the lawyers acting on instructions of the deceased…. even alive people who are seriously mad or have dementia cant be tried because they ‘cant instruct their lawyer on their case or understand the proceedings’
    I seem to remember Little v a recently deceased Hotelier couldnt proceed to appeal after he karked it.
    The Ellis case is borderline as he was alive when the case finished its hearings.

    Reply
  8. Alan Wilkinson

     /  15th November 2019

    We need a much better process for identifying and remedying serious miscarriages of justice.

    That should be the focus IMO. If the victim is dead the criteria should be whether the case is likely to make future miscarriages less likely.

    Reply

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s