Should the restoration of Peter Ellis’ reputation from beyond the grave have publishers worried and defamation lawyers rubbing their hands in anticipation that a basic tenet of the law had been overturned by Tikanga Māori?
Well, not yet. As things stand, only living people can be defamed, and your reputation dies with you. However, could we be feeling the first winds of change?
Certainly, the New Zealand Herald’s senior political correspondent Audrey Young believes the Supreme Court has opened Pandora’s box. In a highly critical commentary yesterday she accused the Supreme Court of “judicial activism with a capital A” and described the court’s use of tikanga as “audacious”.
She claims the court is rewriting the law on tikanga and pre-empting a Law Commission study, requested by the government, on the role of tikanga in common law (also known as case law or judicial precedent).
Peter Ellis, who was no relation, had his convictions for child molestation at Christchurch’s Civic Creche quashed by the Supreme Court last week. He had died in 2019.
In the 152-page judgement that overturned the case against him, there is no mention of tikanga or his reputation. The findings are limited to the conduct of the case against Ellis and the various appeals that followed his conviction. The judgement is based solely on established legal principles.
Young’s criticism related, in fact, to an earlier decision by the court to allow Ellis’ appeal to continue after his death, in part because a majority of the court accepted that Tikanga Māori should be woven into the fabric of our justice system. Tikanga includes an enduring place for mana that transcends death. Reputation may be seen as a simplified definition of mana.
Young pointed out that tikanga had been applied in New Zealand courts for decades under a test that required it to be a general custom of Māori, but it could not be contrary to statute law, and it had to be reasonable.
“Courts now have the discretion to apply tikanga,” she said, “in any case they see fit, in any way, without any test.”
Personally, I think that goes too far, and fails to allow for countervailing judicial principles and precedents. It also does not take account of the differing views of the justices of the Supreme Court and the caution by the Chief Justice Dame Helen Winkelmann, in her reasons for allowing continuation, that “…it is not appropriate or possible to attempt a comprehensive statement of when tikanga will be relevant to the application or development of the common law.” She went on to say that the role that tikanga will play in the development of the common law is best addressed on a case by case basis.
I should also point out that, while our courts interpret statutes – and may apply tikanga values as they apply other long-held societal values reflected in common law – they are not free to disregard or strike down laws. So, a statute remains a statute.
Nonetheless, the concept of restoring the reputation of a dead person raises questions about the possible impact on defamation cases. Will we see relatives of the deceased filing suits, alleging defamation of the dead?
There is no doubt that Ellis’ mana is restored by the court’s quashing of his convictions. It did not declare him innocent – that would have required another trial – but it did find he had been the victim of a miscarriage of justice. For many New Zealanders, that’s as good as saying Peter Ellis was an innocent man.
But tikanga was only part of the court’s reasoning in allowing the appeal to continue posthumously. And not all of the justices were persuaded that it should continue. A majority did allow it to proceed but their reasoning also included the possibility that justice had not been properly served and allowing continuation was in the best interests of justice. The court’s judgement last week proved that was certainly the case.
Crucially, however, they already had the court records in front of them when they considered the appeal. Only expert evidence was adduced. The other witnesses – including Ellis – had already been heard.
When the Supreme Court was considering whether the appeal should proceed, Chief Justice Winkelmann was careful to make a distinction between the Ellis case and other proceedings. She said it was important to address the issue of how pursuing a conviction appeal following the appellant’s death fitted with other areas and principles of law.
She referred specifically to the law of defamation, in which the plaintiff’s interest in their reputation is said to end with their death. And she cited a recent case in which a New Zealand businessman died before his appeal in a failed defamation claim could be heard. His surviving relatives were denied the right to continue that appeal.
That decision stated that Parliament had made its intentions clear in an Act passed 86 years ago that set out grounds on which proceedings could continue after death. The Law Reform Act specifically excludes defamation from the list of actions that can proceed posthumously.
Chief Justice Winkelmann went on to make a clear distinction between the harm caused by civil defamation and the harm caused by wrongful conviction. In the latter case, it was the State that caused the harm to reputation and the damage caused by a miscarriage of justice was greater in magnitude. Left unremedied, it could also erode public confidence in the administration of justice.
So, tikanga was a factor in seeing justice done for Peter Ellis, but it was not the deciding factor. At the core of allowing the appeal to proceed were far more prosaic principles of judicial process.
Nonetheless, the concept of restoring reputation after death may now be back on the table.
We have been there before.
In 1977 the McKay Committee on Defamation, charged with re-examining the law in light of similar moves in Britain, recommended that if a plaintiff died before judgement was delivered, the case should be allowed to continue.
The committee went further: If a publisher knew statements made about a deceased person were untrue, the immediate family should be able to sue for defamation if the action was laid within six years of the death.
New Zealand’s newspaper publishers strongly opposed the recommendations. However, the wheels of legislative reform moved slowly, and it was 1985 before a Labour government started looking seriously at the Defamation Act. The publishers said the proposals were not only contrary to current law but in some cases would be against the principles of natural justice.
“If a plaintiff dies before he(sic) had appeared in the witness box, the defendants would be at a serious disadvantage,” they said in a submission to the Minister of Justice, Geoffrey Palmer. “The same could apply in the case of the death of a defendant. If, for example, a columnist was named as a defendant, along with his employers, for something he had written and he died before being put in the box, the other defendants could find themselves with an indefensible action on their hands.”
They saw the same problem arising from relatives taking action over defamation of the deceased: “One of the principles in the case, the deceased, could not be called into the witness box.”
When a revised Defamation Act was finally passed by Parliament in 1992, none of those recommendations were included.
Britain had already batted away the prospect of raising the dead, or at least their reputations. The Faulks committee that had examined its libel laws in 1975 had expressed great concern about stories that added to widows’ grief and recommended allowing suits to be filed up to five years after death. It did not happen. Geoffrey Robertson and Andrew Nicol were derisive about the prospect in their book Media Law.
There may be some unseemliness about the opportunism of assassinating characters still warm in their graves, but at least they cannot feel the stings and arrows of outrageous libels. The impossibility of shaking them in cross-examination would make such reform grossly unfair to the media.
They said the right to speak ill of the dead is justified in the interests of historians and biographers. European courts have taken a similar view, even in jurisdictions that have statutes protecting the rights of deceased people.
In 2009, one of Joseph Stalin’s grandsons, Yevgeny Dzhugashvili, sued a liberal Russian newspaper for calling the late Communist dictator a “bloodthirsty cannibal” who was responsible for the wartime murder of Polish officers at Katyń. The Civil Code of the Russian Federation states: “The honour and dignity of a deceased individual shall be granted protection upon the request of persons concerned.” However, the Moscow court rejected the claim, so Dzhugashvili took it to the European Court of Human Rights. That court also rejected the claim in 2015, saying that an integral part of freedom of expression was the right to seek historical truth.
Dzhugashvili’s action took place against a backdrop in which the Kremlin was trying to restore Stalin’s reputation as part of Putin’s creation of a new Russian mythology but historical record and the public interest in investigating the massacre in the forest at Katyń stood in the grandson’s way.
But what if grandad had been a law-abiding New Zealander, a man who served his family, friends, and community before dying peacefully at a ripe old age. What if he had then been falsely accused, in an horrendous act of mistaken identity, of being a cunning paedophile who left behind him a trail of ruined young lives?
Media covered by regulations almost always make good on their errors when the mistake is egregious and the effect serious. I was presented with a case of mistaken identity when I was an editor and had absolutely no doubt that we must make immediate amends. I would say the family of the hypothetical falsely accused dead Kiwi grandad is almost certainly safe from mainstream media ridicule and contempt.
What if the spreader of that falsehood was some sort of misguided zealot who refused to correct the error? What if similarly misguided individuals had then targeted the family of deceased, saying ‘You must have known…you were protecting a monster’.
Perhaps the family would have grounds for action on their own behalf, claiming they had been defamed by association. Certainly, tikanga and concepts of mana allow for that transference of reputational damage. Or they may be able to take action under the growing tort of privacy. Unfortunately, the zealots are most likely to be on social media, where reputations have gone to the pack while anonymity reigns supreme.
The medium is having profound effects on the way society thinks about many things, including reputation, and in time the law will evolve to reflect changing values…and threats. Therefore, a debate on posthumous reputation prompted by the successful appeal on behalf of the late Peter Ellis is healthy. However, we must not read too much into that decision. The over-riding reason for allowing the matter to continue was to determine whether a man had been unjustly convicted and imprisoned. The absence of any reference to his mana or reputation in the final appeal decision should put its importance to the debate in perspective.
And we should not lose sight of the unusual nature of defamation law, sometimes referred to as a “plaintiff’s tort” because it is weighted against defendants. The ability to cross-examine one’s accuser is crucial, particularly as the truth is an absolute defence in defamation cases.
There may be grounds for a law change to allow a defamation action to proceed when a plaintiff dies after all evidence had been heard but before closing arguments. However, the prospect of legal attempts to resurrect the reputations of the long-dead fills me with the sort of dread I felt when I read about the exhumation of the body of Oliver Cromwell so he could be tried and executed at Tyburn in 1661, six years after he died.
Defaming the dead? I say let them rest. It is not for the court to determine whether they are at peace or uneasy.