Today our Supreme Court released two decisions in the Ellis case. The case concerns the convictions in 1993 of the appellant for sexual offending at the Christchurch Civic Creche. The first of the decisions contains the reasons, in separate judgments, for allowing the appeal to continue despite the death of the appellant after the grant of leave to appeal. The second is the substantive decision of the Court in a single judgment quashing all the convictions. I will just mention the first decision here, and I do not try to give a detailed account, as there is no substitute for reading the individual judgments.
The first decision, Ellis v R (Continuance) [2022] NZSC 114, includes important discussions of the relationship between tikanga Māori and New Zealand common law. Fortunately for everyone, the Court has done the hard work of pointing us to the relevant parts of the judgments in its Summary of Reasons, paras [1]-[23].
To what extent is tikanga part of the decision? The reasoning of the judges differed, but fell into two camps. The majority, Glazebrook, O’Regan and Arnold JJ, were able to decide the continuation-of-the-appeal point on factors listed at [8], without requiring those factors to be modified in this case by tikanga concepts which nevertheless “may be relevant” [11]. The minority, Winkelmann CJ and Williams J, were able to “fold in” tikanga concepts into their decision framework [10].
The unanimous approach to tikanga is summarised at [19]: where relevant, tikanga can be “recognised in the development of the common law”. The majority (here, Winkelmann CJ, Glazebrook and Williams JJ) held that the “relationship between tikanga and the common law” will evolve contextually, case by case [21]. Further, “the courts must not exceed their function when engaging with tikanga” [22].
Glazebrook J’s remarks at [126]-[127] describe the current relationship between tikanga and the common law. Winkelmann CJ notes, and agrees, that the role that tikanga will play in the development of the common law is best addressed on a case by case basis [183]. Williams J too stressed the importance of context [261], [266]-[272].
Tikanga was relevant in this case because the convictions adversely affected the mana , among other tikanga considerations, of Mr Ellis and his family: [128]-[135]. Significantly, Mr Ellis was not Māori [136], but expert opinion was that there was nevertheless an impact on his mana [141]. Glazebrook J noted that tikanga may be relevant “particularly if any of the parties involved are Māori” [144], and even where they are not a tikanga perspective may highlight important values [145]-[147].
I do not think that this case supports the view that a separate legal system should be developed, concentrating on tikanga values. Rather, it seems that the common law (where applicable - that is, where not replaced by legislation, which itself may require consideration of tikanga) will evolve and be informed by tikanga where relevant, either by taking it into account on an individual basis, or by adopting it gradually as precedent. The process will be one of enrichment and not of contrast. The courts cannot change tikanga, or rule on what tikanga should be, but they can accept expert opinion on tikanga, just as they can accept expert opinion on, for example, science, without being able to change the science itself. Tikanga can serve to emphasise what is common to everyone.
Update: for an interesting media review of the decision and a collection of commentaries, see this article from Stuff, published on 15 October 2022. I must say that some of the critical comments about judges over-stepping their role and trespassing on what is parliament's business are incorrect. If we think back to how the common law started, when King Henry II sent judges in England on circuit to ascertain and apply local laws, and then required them to hold meetings to thrash out a law that, taking the best of all the ideas, would subsequently be applied across England, we can see how the common law - which is the business of judges and which is always able to be replaced by legislation - can draw upon the best of the ideas circulating in the country and meld them together. If parliament thinks some improvement is necessary, it can pass the appropriate enactments.
Further update: Observations on tikanga are to be found in Smith v Fonterra Co-operative Group Limited [2024] NZSC 5 at [182]-[189]. At [187]: "... tikanga was the first law of New Zealand, and it will continue to influence New Zealand’s distinctive common law as appropriate according to the case and to the extent appropriate in the case. [Footnote: The past and present interface of tikanga and the common law was recently discussed in: Te Aka Matua o te Ture | Law Commission He Poutama (NZLC SP24, 2023)]."
