The right to appeal convictions posthumously has been one of the central questions at the Supreme Court, where Peter Ellis' family is trying to clear his name two months after his death.
Today’s appeal is now over and the five Supreme Court judges are considering if a substantive hearing should be held into whether a miscarriage of justice took place.
Ellis served a seven-year sentence for 13 offences of sex abuse related to six children in the early 1990s. He was accused of sexually abusing the children at the Christchurch civic creche, where he worked.
He always protested his innocence, but his appeals were dismissed twice in the Court of Appeal and a ministerial inquiry found his 1993 convictions were safe.
Ellis' lawyer Rob Harrison argued a better understanding of how people's memory works and the use of memory experts in court had emerged since the trial 26 years ago, and that raised questions about the reliability of the children's evidence.
He said he didn’t think a retrial could be ordered now. “One of the things about memory is if it is distorted and if it is embedded it can never be changed,” said Mr Harrison.
But the Crown said what Mr Harrison is asking for is akin to an inquiry and there’s nothing in the law that continues an appeal after death.
“When the appellant dies, his interests die, too,” Queens' Court lawyer Una Jagose told the court.
She said only in rare and exceptional cases should an appeal after death be allowed to proceed and the Ellis case wasn’t one of those.
But Justice Joe Williams, who is the Supreme Court’s first Māori judge, said that was a very western approach. He said in tikanga, death is not irrelevant and ancestors have even more reputation to protect than the living. “More tapu, more mana.” He asked the Crown if New Zealand should divert from the western principle. Ms Jagose answered that the court must be open to that.
Ms Jagose further argued there was “no transcending legal issue” that the court needed to determine.
“Mr Harrison’s case has to be that any of the convictions that Mr Ellis has challenged are unsafe. With respect to him, he cannot bring a case now that is about broadly speaking how should we question, record and hear the evidence in criminal cases. That is akin to an inquiry.”
The Crown said if the court does choose to hear the appeal then a substitute for Ellis would have to be found as a representative of him. His brother has said he is willing to step in.
The court is expected to return its decision next year.