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A new evolution in New Zealand law from the Peter Ellis case

July 20, 2020

In New Zealand, criminal appeals typically end if the person seeking the appeal dies. The outcome wouldn’t impact them, as far as the law is concerned.

So when Peter Ellis died in September last year, it seemed unlikely that the appeal the Supreme Court had granted him would proceed. Now it seems it could.

Wellington Supreme Court building” by Buffy May is licensed under CC BY 2.0

In a hearing last November, Supreme Court Justices Susan Glazebrook and Joe Williams suggested that tikanga, Māori customary practices and behaviours, could play a part in determining whether or not an appeal could go ahead.

When the issue came back before the Court last month, both sides suggested tikanga meant their side should prevail. Counsel for Ellis said that Ellis’ mana had been damaged, and continued after death. The Crown said that tikanga called for balance, and that by proceeding further, that balance would be upset.

The Court has reserved its decision. How they eventually rule will be of great interest, and not just in cases of posthumous appeals. Tikanga has not been a part of common law cases involving Pākehā disputes, and its application could see the start of a more distinctly New Zealand system of law. It might see the judiciary consider other kinds of disputes in a new light.

We’ll keep you updated on the result.

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