The Afterlife Of Peter Ellis

Ellis could have been released early if he had admitted guilt on the other counts. But when journalist Melanie Reid asked him about this, he recoiled. “Are you insane,” he demanded. “Why on earth would I say I’m guilty when I am not?” He wound up serving seven years — one friend liked to describe him as a “voluntary prisoner”. When he was released, he vowed at a press conference: “I do not intend to stop until my name is cleared and the truth is out for everyone’s sake, including the children.”

But all of Ellis’s efforts to appeal his convictions seemed to go nowhere. On bad days, he withdrew into books, or focused his attention on the hens and cats that roamed his backyard. On good days, he was consumed by frantic attempts to revive his quest for justice. “For almost 30 years, [clearing his name] was the paramount concern for Peter,” said Nigel Hampton QC, one of the lawyers who represented Ellis in his first appeal.

In 2018, at the age of 60, Ellis was diagnosed with terminal bladder cancer. Fuming at what he felt was the unduly slow progress of his case, Ellis reached out to Robert Harrison, the lawyer who represented him during his first trial 25 years earlier. They sought leave to appeal to the Supreme Court, and in a surprising development, the Supreme Court took the case. “Somebody said to me, ‘It looks like the crèche case is pulling into the station’,” Ellis told Mike Hosking. “And I said, ‘Well, I hope my train isn’t going out first’.”

By then, Ellis was staying in a hospice room which visitors described as resembling a cheap motel suite. It had been made more homey by family photos, cards from supporters and a plush cushion emblazoned with an image of Marilyn Monroe. When people came to sit with him, Ellis would talk about his parents and his childhood. He would dwell on his sadness that the children in the case had been instilled with what he insisted were false memories.

Sometimes, in the course of his medical treatment, he encountered trainee doctors who were too young to have heard of him — too young to know the meaning of the words “Peter Ellis”. It gave him a tiny glimpse of what his life might have been like if he had been able to free his name from its history. If nothing else, he hoped to do that for the sake of the people who had believed him for all of these years. He knew that, legally and medically, the Supreme Court hearing was his last chance.

The court was scheduled to hear his case in November 2019. On 4 September, five weeks before the hearing, Ellis died, surrounded by family members and two friends. And then, instead of fading away with him, his court case took a turn that no one — least of all Peter Ellis — could have imagined.

Five weeks after Ellis passed away, his lawyer Rob Harrison appeared in the Supreme Court to argue that his case should be allowed to proceed. After so many years of legal uncertainty, Harrison felt strongly that this case needed some kind of resolution.

It was a long shot, though — for the most part, a person’s legal endeavours end with their death. New Zealand’s Solicitor-General Una Jagose QC was explaining why the Crown didn’t believe Ellis should be an exception when she was interrupted by Justice Susan Glazebrook.

“[Perhaps] if you could address the tikanga aspects of this,” Glazebrook said. “Because as we know . . . those sort of issues in respect of miscarriages of justice, and obviously collective but as well as individual cases, have a profound effect right through the generations.”

Jagose rumbled on with her prepared remarks without addressing the question. But then Justice Joe Williams, the Supreme Court’s first Māori judge, broke in. The idea that a person has no reputation to protect after death is “quite a western idea”, he ruminated. “In a tikanga context,” he went on, after death “an ancestor has even more reputation to protect, is more tapu, has more mana.” He added, “Obviously, we’ve got to the point where the common law has got a Māori flavour in it in Aotearoa.” Shouldn’t that be a factor when deciding whether Ellis’s appeal could move forward?

It’s fair to say that this was not a question either side had ever anticipated. Tikanga Māori is the customary set of rules that regulate Māori life. Many of them have trickled into our wider culture, such as the concepts of utu or mana. In recent years, some courts have accepted that tikanga might be applicable to the law, but only in vague terms and in cases concerning Māori.

Ellis, however, was Pākehā. Now, Glazebrook and Williams were asking whether his effort to clear his name should be allowed to go ahead because of the implications for his mana — which, according to Māori custom, endures and fluctuates in both life and death.

“I would appreciate an opportunity to think about that point, which it’s quite clear I haven’t thought through,” said Jagose.

She wasn’t the only one who seemed to be caught off guard. Justice Terence Arnold suggested that if the court were to apply tikanga in the Ellis case, he would like to understand the implications for other areas of the law. “For myself, I have not the faintest idea what the answer to that is,” he said.

The Supreme Court gave the two legal teams five weeks to prepare a response. The underlying questions were so complex that five weeks turned into seven months.

When Rob Harrison first met Peter Ellis, Harrison was an up-and-coming young lawyer in Christchurch with sandy brown hair and a boyish face. His hair is now speckled with silver, and he is one of several lawyers who have helped Ellis pursue two appeals and repeated petitions to the governor-general. All those efforts failed. And all of them came back to the same questions about the reliability of the evidence against him.

The first allegation was lodged by a mother whose son said that he didn’t like Ellis’s “black penis”. Months before, Ellis had taught the child how to identify the sex of a black puppy. The comments were sufficiently ambiguous that police dismissed the accusation. But other parents asked their own children whether Ellis had abused them, compared answers and insisted that their children be formally interviewed.

Social Welfare brought in children for multiple sessions, with each appearance often producing new allegations. One child was interviewed five times: in his first he said Ellis “wobbled his dick and smacked his bum”, in his fifth he said Ellis and others had hung him and other children in cages and stuck burning paper up their backsides. The children named 21 other victims, none of whom would confirm their stories. Many of the more outlandish claims were withheld from the court altogether. At the trial, Karen Zelas, the prosecution’s expert witness, maintained that if a child said they were abused, they must be assumed to be telling the truth. If a child said they hadn’t been abused, however, that could be a sign of denial.

Significantly, four female crèche workers were also charged for being involved in Ellis’s supposed quasisatanic rituals. But the notion that the children’s accusations must always be believed was not applied to them. Shortly before the trial, the charges against all four women were dismissed by the judge, who believed their association with Ellis would prevent them receiving a fair trail.

Many years later, when the Supreme Court accepted the case, the legal teams for both Ellis and the Crown expected to go over this familiar ground once again. Harrison prepared to argue whether the children’s elaborate allegations had been primed by their parents and coaxed through repeated interviews. He enlisted a group of University of Otago academics specialising in law and psychology to illuminate new research on the nature of memory in children. He did not, however, spend any time exploring the legal definition of mana. Nigel Hampton, who remains in touch with Harrison, said that the justices’ question about tikanga was so “surprising” that it eventually resulted in a wholesale restructuring of Ellis’s legal team.

When the Supreme Court eventually reconvened on 25 June 2020, the scene was very different from any previous hearing in the Ellis case. The proceedings began with a mihi and karakia. Lawyers for the Crown and Ellis had jointly consulted a group of distinguished Māori experts, including Sir Hirini Moko Mead, a prominent anthropologist, and Professor Rawinia Higgins, an academic focused on language and culture. Representatives of Te Hunga Rōia Māori, the Māori Law Society, made a rare appearance as interveners, providing an independent view.

There was also a new addition to Ellis’s team: Natalie Coates, who at 35 is one of the country’s most celebrated young lawyers. The daughter of a Kawerau mill worker, Coates (Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Tūhourangi, Tūhoe, Te Whānau a Apanui) secured two honours degrees from University of Otago and a Fulbright Scholarship to Harvard. She spent the next five years teaching students how to meld tikanga and the law at Auckland University. In 2014 she joined Kāhui Legal, a Māori law firm, where she specialises in constitutional and human rights law. At the time of Ellis’s first trial, Coates was in primary school.

Coates had read about the initial Supreme Court hearing with interest. Worried about how the question of tikanga might be handled, she called Harrison and volunteered to join Ellis’s team.

“[O]ften those environments are very non-Māori. You feel really alienated, it’s this very colonial system with the big robes and that,” said Coates. “What was unique about that day was the presence of Māori — not just Māori people, but of customs; and in the process, not just in the substance.”

At the first hearing, Jagose had expressed some cautious reservations about the prospect of introducing tikanga to Ellis’s case. So it was striking that at the second hearing, there was no dispute over whether tikanga was relevant in the case: the Crown agreed with Ellis’s team that it was. Instead, the two sides differed on how Māori customary principles should be applied.

Coates argued that the damage to Ellis’s mana justified a further appeal. The Crown contended that an appropriate state of ea, or resolution, had already been reached through previous appeals. Continuing the case, Jagose suggested, would harm the mana of Ellis’s alleged victims.

Somehow, Ellis’s years-long quest to establish his innocence had transformed into a landmark case for the direction of law in Aotearoa. “I didn’t see it coming,” said Carwyn Jones, an associate professor of law at Victoria University of Wellington and tumuaki tāne (male co-leader) of Te Hunga Roia a Māori. “There was no particular reason for it to come up.”

The notion that tikanga could apply to Pākeha as well as Māori would be a profound development. The Supreme Court would be signalling that arguments based on concepts like hara (wrongs) and mana or utu could be expected in almost any realm of the law. Strangely, this pivotal moment was reached almost by chance — a result of the evolution of our Supreme Court and the hidden process by which justices are chosen.

When Peter Ellis first began his winding journey through the legal system, New Zealand did not have a Supreme Court. To litigate our most fundamental legal questions, lawyers travelled 18,803 kilometres to appear before the Privy Council in London.

But in 2004, in an effort to end this “odd” and anachronistic reliance, the Helen Clark government established the Supreme Court. Even its appearance signals a distinct break from the British model of justice. The justices sit in an imposing yet graceful ovoid chamber that is lined with silver beech. Instead of the red robes and wigs inherited from medieval England, they wear gowns braided in a poutama pattern and emblazoned with the three kete of knowledge from Māori mythology.

For most of its short history, our Supreme Court has had a much lower profile than its US equivalent, whose justices are pop culture heroes and villains, responsible for deciding high-octane policy questions in a gridlocked system. In recent years, however, the New Zealand Supreme Court has taken increasingly ambitious steps. In 2018, for example, it agreed with jailhouse lawyer Arthur Taylor that parliament had breached the Bill of Rights Act by disenfranchising prisoners. Ellis’s appeal can be seen as the latest step in this 15-year journey towards legal self-determination. “I think it was always the intention that the court would take a leading role in giving our law a distinctly Kiwi flavour,” said.

This means that the question of who serves on the Court has become increasingly important. The selection process is largely hidden from the public, but the competition is intense. In November 2018 for example, as Chief Justice Sian Elias’s retirement approached, some contenders jostled to raise their profiles.

Two leading candidates were the Supreme Court’s Justice Susan Glazebrook, a former partner in tax and finance law at Simpson Grierson, and president of the Court of Appeal, Stephen Kós, previously a leading commercial litigator at Russell McVeagh. Before the appointment, both delivered more public speeches than usual for a senior judge. Both gave just one in 2017; in 2018 Kós gave five and Glazebrook gave four. Neither were successful: the job went to Dame Helen Winkelmann, who became a partner at age 25 at Nicholson Gribbin (now DLA Piper).

Crown Law, the department that handles the government’s legal work, calls for expressions of interest when a vacancy arises. The solicitor-general works with the chief justice and attorney-general to develop a shortlist. Then the attorney-general makes a Dean Knight, an associate professor of law at Victoria University of Wellington, agreed. “It’s never partisan. It’s never ‘are you a lefty or a righty’.”

Others say that it is heavily weighted towards a privileged group of insiders. Many lawyers I spoke to believed it was highly unlikely that anyone would express interest unless they’d been encouraged to do so by the chief justice or attorney-general.

There are also concerns that the consultation stage prioritises predominantly Pākehā institutions, like the Law Society (the representative body for lawyers) and the Bar Association (the body for barristers). The solicitor-general may seek input from groups like Te Hunga Rōia Māori, but Marcia Murray, its former tumuaki wahine (female co-leader) said that it’s not clear what impact their feedback has, “We put names to Una [Jagose],” said Murray. “Based on a person’s word, we trust that that’s the process they’re going to go through. We’re relying on our relationship with Una.”

The Supreme Court “has traditionally been an impenetrable force, and that’s reflected in the fact that we’ve had pretty much no Māori in the senior courts,” said Coates. “Justice Williams is the only one to make it to the Supreme Court and one of few to the Court of Appeal.”

Joe Williams (Ngāti Pūkenga, Waitaha, Tapuika) took a very different path than the other justices on the bench. He grew up in poverty, raised by his koroua and kuia in a “railway station of relations”, he once recounted to The Dominion Post. After winning a scholarship to Lindisfarne College, he was the first in his whānau to pass School Certificate and studied law and Māori studies at Victoria University. In the 1980s he was also the frontman for the reggae band Aotearoa, whose music videos enjoyed a brief revival in law school lecture theatres when news broke of his historic appointment to the Supreme Court in 2019.

But it’s not only his biography that sets Williams apart. He had previously served as chief judge of the Māori Land Court and chairperson of the Waitangi Tribunal. During his eight years on the High Court, he melded his judicial work with public theorising about the future direction of the law. In 2013, he gave a speech titled “Lex Aotearoa” — one of the most influential explanations of how tikanga and the law might intersect.

It’s unlikely that Williams would have been appointed to the Supreme Court by the previous National government, according to a person familiar with the thinking of Christopher Finlayson, the attorney-general from 2008 until 2017. That person characterised Finlayson’s reasoning as: “The role of the judge is to judge. Not to give great speeches.”

But after Labour’s victory in 2017, David Parker, an ardent progressive, replaced Finlayson. On 2 May 2019, he announced Williams’ appointment to the court. “The attorney-general appoints in their image of the law,” said Knight. “Different governments have different views on the important attributes of judges.”

Williams was appointed six months before the first hearing in the Ellis case. “If Justice Glazebrook hadn’t asked asked about tikanga, it wouldn’t have come up,” said Coates. But without Williams, tikanga experts would probably not have supported its application to Ellis’s case. “[If] Justice Williams wasn’t on the bench, the asking of the question would have got a different reaction from Maoridom,” said Murray.

At the second Supreme Court hearing, Williams led the questioning. “That’s one of the benefits of having a person like him on the court,” said Coates. “You’re not starting from scratch.” She smiled as she recalled her interaction with Justices Mark O’Regan and Terence Arnold, both of whom are Pākehā. “We didn’t get a lot of questions from them, but they did ask really good pragmatic questions about the effect going forward. Of course they’re thinking, like they should, will this create a floodgates situation?”

In his speech “Lex Aotearoa”, Justice Williams describes tikanga Māori as Aotearoa’s first law: for 700 years, it governed society on our islands. When English colonisers imported their common law system — Aotearoa’s second law — tikanga was mostly pushed aside. The Treaty of Waitangi was supposed to bring the two systems together. But not long after its signing, William Prendergast, chief justice from 1875 to 1899, dismissed the document as a “nullity” and tikanga as “primitive”. Williams suggested that Aotearoa is now creating a “third law” — a blending of the law of Cook and Kupe in which “tikanga Māori is not foreign and separate but rather integrated and mainstream”.

A significant milestone came in 2012, when the Supreme Court considered a case called Takamore Clarke. After James Takamore, a Māori man, passed away, his whānau buried him in the Bay of Plenty. However, his Pākehā wife, the executor of his will, had wanted to bury him in Christchurch. A majority of the Supreme Court ruled that the wife’s rights overruled Māori burial customs. But the justices made a point of noting, unanimously, that tikanga was relevant in New Zealand’s common law. Still, it remained unclear precisely what role it might play — until Ellis.

In September 2020, the Supreme Court announced that it would allow Ellis’s appeal to proceed. It has not yet released a detailed judgment explaining its reasoning, but many legal experts have assumed that it did so on the basis of Ellis’s mana. And if tikanga were to be integrated into our common law through the Ellis case, it would have transformative consequences for every facet of our legal system. An interesting point of comparison is Canada, which has been rapidly indigenising its legal system over the past two decades. As one Canadian lawyer specialising in indigenous law observed in 2018, “Ninety per cent of the law that I deal with on a daily basis simply didn’t exist when I went to law school.”

Should Ellis’s appeal progress on the basis of his mana, it could open the door for other appeals to continue even after the person involved has passed away. But the consequences could stretch far beyond that. For instance, might iwi-sponsored rāhui — the act of protecting a resource or area by placing a prohibition on its use — gain firmer legal recognition? What role might the concept of kaitiakitanga (guardianship) play in environmental law and resource consents? Up until now, our family and succession law has been centred on the rights of the nuclear family. How might that change with the concept of whanaungatanga (kinship), which focuses on responsibilities to the extended family?

Coates provided another example where Ellis’s appeal might have far-reaching consequences: defamation law. Currently, you can’t bring a defamation case on behalf of someone who has died. But if mana is legally recognised after death, attacks on that mana could be penalised. “Any decision in Ellis’s case won’t change [defamation law] overnight, but it may over time, in terms of whether we actually think it’s a good idea that we can defame the dead,” said Coates. “Why should you be able to say defamatory things about them — just because they can’t get hurt feelings? That idea is out of line with tikanga, but also more broadly with ideas in Aotearoa.”

The potential melding of English common law and tikanga Māori has drawn a surprising mix of dissenters. Some members of the legal profession have not shifted far from Chief Justice Prendergast’s dismissal of tikanga as “primitive” in the late 19th century.

One of the most vocal critics is former ACT MP Stephen Franks, who described tikanga to me as a “morass of unknown custom”. He believes “bleeding heart judges” will use it “to start making up things as they go”. “It just allows judicial activism,” he said.

Even some defenders of tikanga Māori worry about how it might be deployed by judges who are not wellversed in its concepts. In an award-winning essay in the Māori Law Review a month after the Ellis hearing, Elliott Harris, a student at Victoria University, expressed concern that the case would “increase the capacity of the state legal system to sporadically engage in the selective adoption of concepts of tikanga Māori to suit its purposes”. Justice Williams, in his 2013 speech, worried that “most judges who must weigh and apply tikanga in their work (or choose not to do so), will never have heard of whanaungatanga or kaitiakitanga”.

For this reason, both Ellis’s team and the Crown sought the advice of a wānanga of experts like Professor Higgins and Sir Hirini, to determine which elements of tikanga should be presented to the court. “There was robust discussion about whether it was a good idea for tikanga to be part of the common law at all,” Coates recalled. “Ultimately they all arrived at the position that it should be and that it was better for it to be drawn upon than absent . . . the justice system is a mechanism that has an impact on people’s lives, so if we can make it reflective of the values Māori believe in then that can only be a positive thing.”

Many lawyers are already thinking about what the case means for their work. “There’s a whole lot of people in the profession who are going to need to upskill,” said Carwyn Jones, who suggests that competency in tikanga and te reo should become a requirement for admission to the Bar, or for lawyers to maintain their practising certificates.

Peter Ellis, of course, had no inkling that any of this was coming. The day before he died, Nigel Hampton went to see him. By that point, it was obvious that Ellis wasn’t going to survive long enough to make it to the Supreme Court. Still, he quizzed Hampton enthusiastically about whether there was a way for the case to keep going without him. To Hampton, it seemed that at the end of his life, Ellis had acquired some measure of hope. “The irony,” he has said, “is that Peter has to die to win a case and set what I think will be quite an outstanding precedent.”

Pete McKenzie is is a freelance writer based in Wellington.

This story appeared in the March 2021 issue of North & South.

Ellis could have been released early if he had admitted guilt on the other counts. But when journalist Melanie Reid asked him about this, he recoiled. “Are you insane,” he demanded. “Why on earth would I say I’m guilty when I am not?” He wound up serving seven years — one friend liked to describe him as a “voluntary prisoner”. When he was released, he vowed at a press conference: “I do not intend to stop until my name is cleared and the truth is out for everyone’s sake, including the children.”

But all of Ellis’s efforts to appeal his convictions seemed to go nowhere. On bad days, he withdrew into books, or focused his attention on the hens and cats that roamed his backyard. On good days, he was consumed by frantic attempts to revive his quest for justice. “For almost 30 years, [clearing his name] was the paramount concern for Peter,” said Nigel Hampton QC, one of the lawyers who represented Ellis in his first appeal.

In 2018, at the age of 60, Ellis was diagnosed with terminal bladder cancer. Fuming at what he felt was the unduly slow progress of his case, Ellis reached out to Robert Harrison, the lawyer who represented him during his first trial 25 years earlier. They sought leave to appeal to the Supreme Court, and in a surprising development, the Supreme Court took the case. “Somebody said to me, ‘It looks like the crèche case is pulling into the station’,” Ellis told Mike Hosking. “And I said, ‘Well, I hope my train isn’t going out first’.”

By then, Ellis was staying in a hospice room which visitors described as resembling a cheap motel suite. It had been made more homey by family photos, cards from supporters and a plush cushion emblazoned with an image of Marilyn Monroe. When people came to sit with him, Ellis would talk about his parents and his childhood. He would dwell on his sadness that the children in the case had been instilled with what he insisted were false memories.

Sometimes, in the course of his medical treatment, he encountered trainee doctors who were too young to have heard of him — too young to know the meaning of the words “Peter Ellis”. It gave him a tiny glimpse of what his life might have been like if he had been able to free his name from its history. If nothing else, he hoped to do that for the sake of the people who had believed him for all of these years. He knew that, legally and medically, the Supreme Court hearing was his last chance.

The court was scheduled to hear his case in November 2019. On 4 September, five weeks before the hearing, Ellis died, surrounded by family members and two friends. And then, instead of fading away with him, his court case took a turn that no one — least of all Peter Ellis — could have imagined.

Five weeks after Ellis passed away, his lawyer Rob Harrison appeared in the Supreme Court to argue that his case should be allowed to proceed. After so many years of legal uncertainty, Harrison felt strongly that this case needed some kind of resolution.

It was a long shot, though — for the most part, a person’s legal endeavours end with their death. New Zealand’s Solicitor-General Una Jagose QC was explaining why the Crown didn’t believe Ellis should be an exception when she was interrupted by Justice Susan Glazebrook.

“[Perhaps] if you could address the tikanga aspects of this,” Glazebrook said. “Because as we know . . . those sort of issues in respect of miscarriages of justice, and obviously collective but as well as individual cases, have a profound effect right through the generations.”

Jagose rumbled on with her prepared remarks without addressing the question. But then Justice Joe Williams, the Supreme Court’s first Māori judge, broke in. The idea that a person has no reputation to protect after death is “quite a western idea”, he ruminated. “In a tikanga context,” he went on, after death “an ancestor has even more reputation to protect, is more tapu, has more mana.” He added, “Obviously, we’ve got to the point where the common law has got a Māori flavour in it in Aotearoa.” Shouldn’t that be a factor when deciding whether Ellis’s appeal could move forward?

It’s fair to say that this was not a question either side had ever anticipated. Tikanga Māori is the customary set of rules that regulate Māori life. Many of them have trickled into our wider culture, such as the concepts of utu or mana. In recent years, some courts have accepted that tikanga might be applicable to the law, but only in vague terms and in cases concerning Māori.

Ellis, however, was Pākehā. Now, Glazebrook and Williams were asking whether his effort to clear his name should be allowed to go ahead because of the implications for his mana — which, according to Māori custom, endures and fluctuates in both life and death.

“I would appreciate an opportunity to think about that point, which it’s quite clear I haven’t thought through,” said Jagose.

She wasn’t the only one who seemed to be caught off guard. Justice Terence Arnold suggested that if the court were to apply tikanga in the Ellis case, he would like to understand the implications for other areas of the law. “For myself, I have not the faintest idea what the answer to that is,” he said.

The Supreme Court gave the two legal teams five weeks to prepare a response. The underlying questions were so complex that five weeks turned into seven months.

When Rob Harrison first met Peter Ellis, Harrison was an up-and-coming young lawyer in Christchurch with sandy brown hair and a boyish face. His hair is now speckled with silver, and he is one of several lawyers who have helped Ellis pursue two appeals and repeated petitions to the governor-general. All those efforts failed. And all of them came back to the same questions about the reliability of the evidence against him.

The first allegation was lodged by a mother whose son said that he didn’t like Ellis’s “black penis”. Months before, Ellis had taught the child how to identify the sex of a black puppy. The comments were sufficiently ambiguous that police dismissed the accusation. But other parents asked their own children whether Ellis had abused them, compared answers and insisted that their children be formally interviewed.

Social Welfare brought in children for multiple sessions, with each appearance often producing new allegations. One child was interviewed five times: in his first he said Ellis “wobbled his dick and smacked his bum”, in his fifth he said Ellis and others had hung him and other children in cages and stuck burning paper up their backsides. The children named 21 other victims, none of whom would confirm their stories. Many of the more outlandish claims were withheld from the court altogether. At the trial, Karen Zelas, the prosecution’s expert witness, maintained that if a child said they were abused, they must be assumed to be telling the truth. If a child said they hadn’t been abused, however, that could be a sign of denial.

Significantly, four female crèche workers were also charged for being involved in Ellis’s supposed quasisatanic rituals. But the notion that the children’s accusations must always be believed was not applied to them. Shortly before the trial, the charges against all four women were dismissed by the judge, who believed their association with Ellis would prevent them receiving a fair trail.

Many years later, when the Supreme Court accepted the case, the legal teams for both Ellis and the Crown expected to go over this familiar ground once again. Harrison prepared to argue whether the children’s elaborate allegations had been primed by their parents and coaxed through repeated interviews. He enlisted a group of University of Otago academics specialising in law and psychology to illuminate new research on the nature of memory in children. He did not, however, spend any time exploring the legal definition of mana. Nigel Hampton, who remains in touch with Harrison, said that the justices’ question about tikanga was so “surprising” that it eventually resulted in a wholesale restructuring of Ellis’s legal team.

When the Supreme Court eventually reconvened on 25 June 2020, the scene was very different from any previous hearing in the Ellis case. The proceedings began with a mihi and karakia. Lawyers for the Crown and Ellis had jointly consulted a group of distinguished Māori experts, including Sir Hirini Moko Mead, a prominent anthropologist, and Professor Rawinia Higgins, an academic focused on language and culture. Representatives of Te Hunga Rōia Māori, the Māori Law Society, made a rare appearance as interveners, providing an independent view.

There was also a new addition to Ellis’s team: Natalie Coates, who at 35 is one of the country’s most celebrated young lawyers. The daughter of a Kawerau mill worker, Coates (Ngāti Awa, Ngāti Hine, Ngāti Tūwharetoa, Tūhourangi, Tūhoe, Te Whānau a Apanui) secured two honours degrees from University of Otago and a Fulbright Scholarship to Harvard. She spent the next five years teaching students how to meld tikanga and the law at Auckland University. In 2014 she joined Kāhui Legal, a Māori law firm, where she specialises in constitutional and human rights law. At the time of Ellis’s first trial, Coates was in primary school.

Coates had read about the initial Supreme Court hearing with interest. Worried about how the question of tikanga might be handled, she called Harrison and volunteered to join Ellis’s team.

“[O]ften those environments are very non-Māori. You feel really alienated, it’s this very colonial system with the big robes and that,” said Coates. “What was unique about that day was the presence of Māori — not just Māori people, but of customs; and in the process, not just in the substance.”

At the first hearing, Jagose had expressed some cautious reservations about the prospect of introducing tikanga to Ellis’s case. So it was striking that at the second hearing, there was no dispute over whether tikanga was relevant in the case: the Crown agreed with Ellis’s team that it was. Instead, the two sides differed on how Māori customary principles should be applied.

Coates argued that the damage to Ellis’s mana justified a further appeal. The Crown contended that an appropriate state of ea, or resolution, had already been reached through previous appeals. Continuing the case, Jagose suggested, would harm the mana of Ellis’s alleged victims.

Somehow, Ellis’s years-long quest to establish his innocence had transformed into a landmark case for the direction of law in Aotearoa. “I didn’t see it coming,” said Carwyn Jones, an associate professor of law at Victoria University of Wellington and tumuaki tāne (male co-leader) of Te Hunga Roia a Māori. “There was no particular reason for it to come up.”

The notion that tikanga could apply to Pākeha as well as Māori would be a profound development. The Supreme Court would be signalling that arguments based on concepts like hara (wrongs) and mana or utu could be expected in almost any realm of the law. Strangely, this pivotal moment was reached almost by chance — a result of the evolution of our Supreme Court and the hidden process by which justices are chosen.

When Peter Ellis first began his winding journey through the legal system, New Zealand did not have a Supreme Court. To litigate our most fundamental legal questions, lawyers travelled 18,803 kilometres to appear before the Privy Council in London.

But in 2004, in an effort to end this “odd” and anachronistic reliance, the Helen Clark government established the Supreme Court. Even its appearance signals a distinct break from the British model of justice. The justices sit in an imposing yet graceful ovoid chamber that is lined with silver beech. Instead of the red robes and wigs inherited from medieval England, they wear gowns braided in a poutama pattern and emblazoned with the three kete of knowledge from Māori mythology.

For most of its short history, our Supreme Court has had a much lower profile than its US equivalent, whose justices are pop culture heroes and villains, responsible for deciding high-octane policy questions in a gridlocked system. In recent years, however, the New Zealand Supreme Court has taken increasingly ambitious steps. In 2018, for example, it agreed with jailhouse lawyer Arthur Taylor that parliament had breached the Bill of Rights Act by disenfranchising prisoners. Ellis’s appeal can be seen as the latest step in this 15-year journey towards legal self-determination. “I think it was always the intention that the court would take a leading role in giving our law a distinctly Kiwi flavour,” said.

This means that the question of who serves on the Court has become increasingly important. The selection process is largely hidden from the public, but the competition is intense. In November 2018 for example, as Chief Justice Sian Elias’s retirement approached, some contenders jostled to raise their profiles.

Two leading candidates were the Supreme Court’s Justice Susan Glazebrook, a former partner in tax and finance law at Simpson Grierson, and president of the Court of Appeal, Stephen Kós, previously a leading commercial litigator at Russell McVeagh. Before the appointment, both delivered more public speeches than usual for a senior judge. Both gave just one in 2017; in 2018 Kós gave five and Glazebrook gave four. Neither were successful: the job went to Dame Helen Winkelmann, who became a partner at age 25 at Nicholson Gribbin (now DLA Piper).

Crown Law, the department that handles the government’s legal work, calls for expressions of interest when a vacancy arises. The solicitor-general works with the chief justice and attorney-general to develop a shortlist. Then the attorney-general makes a Dean Knight, an associate professor of law at Victoria University of Wellington, agreed. “It’s never partisan. It’s never ‘are you a lefty or a righty’.”

Others say that it is heavily weighted towards a privileged group of insiders. Many lawyers I spoke to believed it was highly unlikely that anyone would express interest unless they’d been encouraged to do so by the chief justice or attorney-general.

There are also concerns that the consultation stage prioritises predominantly Pākehā institutions, like the Law Society (the representative body for lawyers) and the Bar Association (the body for barristers). The solicitor-general may seek input from groups like Te Hunga Rōia Māori, but Marcia Murray, its former tumuaki wahine (female co-leader) said that it’s not clear what impact their feedback has, “We put names to Una [Jagose],” said Murray. “Based on a person’s word, we trust that that’s the process they’re going to go through. We’re relying on our relationship with Una.”

The Supreme Court “has traditionally been an impenetrable force, and that’s reflected in the fact that we’ve had pretty much no Māori in the senior courts,” said Coates. “Justice Williams is the only one to make it to the Supreme Court and one of few to the Court of Appeal.”

Joe Williams (Ngāti Pūkenga, Waitaha, Tapuika) took a very different path than the other justices on the bench. He grew up in poverty, raised by his koroua and kuia in a “railway station of relations”, he once recounted to The Dominion Post. After winning a scholarship to Lindisfarne College, he was the first in his whānau to pass School Certificate and studied law and Māori studies at Victoria University. In the 1980s he was also the frontman for the reggae band Aotearoa, whose music videos enjoyed a brief revival in law school lecture theatres when news broke of his historic appointment to the Supreme Court in 2019.

But it’s not only his biography that sets Williams apart. He had previously served as chief judge of the Māori Land Court and chairperson of the Waitangi Tribunal. During his eight years on the High Court, he melded his judicial work with public theorising about the future direction of the law. In 2013, he gave a speech titled “Lex Aotearoa” — one of the most influential explanations of how tikanga and the law might intersect.

It’s unlikely that Williams would have been appointed to the Supreme Court by the previous National government, according to a person familiar with the thinking of Christopher Finlayson, the attorney-general from 2008 until 2017. That person characterised Finlayson’s reasoning as: “The role of the judge is to judge. Not to give great speeches.”

But after Labour’s victory in 2017, David Parker, an ardent progressive, replaced Finlayson. On 2 May 2019, he announced Williams’ appointment to the court. “The attorney-general appoints in their image of the law,” said Knight. “Different governments have different views on the important attributes of judges.”

Williams was appointed six months before the first hearing in the Ellis case. “If Justice Glazebrook hadn’t asked asked about tikanga, it wouldn’t have come up,” said Coates. But without Williams, tikanga experts would probably not have supported its application to Ellis’s case. “[If] Justice Williams wasn’t on the bench, the asking of the question would have got a different reaction from Maoridom,” said Murray.

At the second Supreme Court hearing, Williams led the questioning. “That’s one of the benefits of having a person like him on the court,” said Coates. “You’re not starting from scratch.” She smiled as she recalled her interaction with Justices Mark O’Regan and Terence Arnold, both of whom are Pākehā. “We didn’t get a lot of questions from them, but they did ask really good pragmatic questions about the effect going forward. Of course they’re thinking, like they should, will this create a floodgates situation?”

In his speech “Lex Aotearoa”, Justice Williams describes tikanga Māori as Aotearoa’s first law: for 700 years, it governed society on our islands. When English colonisers imported their common law system — Aotearoa’s second law — tikanga was mostly pushed aside. The Treaty of Waitangi was supposed to bring the two systems together. But not long after its signing, William Prendergast, chief justice from 1875 to 1899, dismissed the document as a “nullity” and tikanga as “primitive”. Williams suggested that Aotearoa is now creating a “third law” — a blending of the law of Cook and Kupe in which “tikanga Māori is not foreign and separate but rather integrated and mainstream”.

A significant milestone came in 2012, when the Supreme Court considered a case called Takamore Clarke. After James Takamore, a Māori man, passed away, his whānau buried him in the Bay of Plenty. However, his Pākehā wife, the executor of his will, had wanted to bury him in Christchurch. A majority of the Supreme Court ruled that the wife’s rights overruled Māori burial customs. But the justices made a point of noting, unanimously, that tikanga was relevant in New Zealand’s common law. Still, it remained unclear precisely what role it might play — until Ellis.

In September 2020, the Supreme Court announced that it would allow Ellis’s appeal to proceed. It has not yet released a detailed judgment explaining its reasoning, but many legal experts have assumed that it did so on the basis of Ellis’s mana. And if tikanga were to be integrated into our common law through the Ellis case, it would have transformative consequences for every facet of our legal system. An interesting point of comparison is Canada, which has been rapidly indigenising its legal system over the past two decades. As one Canadian lawyer specialising in indigenous law observed in 2018, “Ninety per cent of the law that I deal with on a daily basis simply didn’t exist when I went to law school.”

Should Ellis’s appeal progress on the basis of his mana, it could open the door for other appeals to continue even after the person involved has passed away. But the consequences could stretch far beyond that. For instance, might iwi-sponsored rāhui — the act of protecting a resource or area by placing a prohibition on its use — gain firmer legal recognition? What role might the concept of kaitiakitanga (guardianship) play in environmental law and resource consents? Up until now, our family and succession law has been centred on the rights of the nuclear family. How might that change with the concept of whanaungatanga (kinship), which focuses on responsibilities to the extended family?

Coates provided another example where Ellis’s appeal might have far-reaching consequences: defamation law. Currently, you can’t bring a defamation case on behalf of someone who has died. But if mana is legally recognised after death, attacks on that mana could be penalised. “Any decision in Ellis’s case won’t change [defamation law] overnight, but it may over time, in terms of whether we actually think it’s a good idea that we can defame the dead,” said Coates. “Why should you be able to say defamatory things about them — just because they can’t get hurt feelings? That idea is out of line with tikanga, but also more broadly with ideas in Aotearoa.”

The potential melding of English common law and tikanga Māori has drawn a surprising mix of dissenters. Some members of the legal profession have not shifted far from Chief Justice Prendergast’s dismissal of tikanga as “primitive” in the late 19th century.

One of the most vocal critics is former ACT MP Stephen Franks, who described tikanga to me as a “morass of unknown custom”. He believes “bleeding heart judges” will use it “to start making up things as they go”. “It just allows judicial activism,” he said.

Even some defenders of tikanga Māori worry about how it might be deployed by judges who are not wellversed in its concepts. In an award-winning essay in the Māori Law Review a month after the Ellis hearing, Elliott Harris, a student at Victoria University, expressed concern that the case would “increase the capacity of the state legal system to sporadically engage in the selective adoption of concepts of tikanga Māori to suit its purposes”. Justice Williams, in his 2013 speech, worried that “most judges who must weigh and apply tikanga in their work (or choose not to do so), will never have heard of whanaungatanga or kaitiakitanga”.

For this reason, both Ellis’s team and the Crown sought the advice of a wānanga of experts like Professor Higgins and Sir Hirini, to determine which elements of tikanga should be presented to the court. “There was robust discussion about whether it was a good idea for tikanga to be part of the common law at all,” Coates recalled. “Ultimately they all arrived at the position that it should be and that it was better for it to be drawn upon than absent . . . the justice system is a mechanism that has an impact on people’s lives, so if we can make it reflective of the values Māori believe in then that can only be a positive thing.”

Many lawyers are already thinking about what the case means for their work. “There’s a whole lot of people in the profession who are going to need to upskill,” said Carwyn Jones, who suggests that competency in tikanga and te reo should become a requirement for admission to the Bar, or for lawyers to maintain their practising certificates.

Peter Ellis, of course, had no inkling that any of this was coming. The day before he died, Nigel Hampton went to see him. By that point, it was obvious that Ellis wasn’t going to survive long enough to make it to the Supreme Court. Still, he quizzed Hampton enthusiastically about whether there was a way for the case to keep going without him. To Hampton, it seemed that at the end of his life, Ellis had acquired some measure of hope. “The irony,” he has said, “is that Peter has to die to win a case and set what I think will be quite an outstanding precedent.”

Pete McKenzie is is a freelance writer based in Wellington.

This story appeared in the March 2021 issue of North & South.