While Peter Ellis' posthumous appeal to the Supreme Court has rightly received significant attention for its role in developing the relationship between tikanga and the common law, comparatively little attention has been paid to the issues raised in the conviction appeal. This article considers whether the Court's decision signals a move away from the well-established approach of the Court of Appeal to the admissibility of expert evidence about the memory of child complainants. In addition, it examines whether the Supreme Court's assessment of the current state of the expert evidence conflicts with the legislative regime as presently formulated. The article ultimately concludes that given the continued uncertainty of the expert evidence in this area and the Supreme Court's refusal to confront these issues directly, the approach detailed in earlier Court of Appeal decisions will likely continue to guide trial courts.

This article argues that by opening the door to the potential application of tikanga into any question of the common law and into any question of statutory interpretation, the majority judgments in Ellis v R are, legally speaking, engaged in a revolution. In relation to the common law in particular, the judgments fail to pay due regard to the statutory foundations of the courts' jurisdiction which have never been altered. Those foundations made English law and method the basis of the courts' common law jurisdiction. To the extent that those foundations permitted recourse to the "Blackstonian gloss" of local circumstances, and those circumstances might sometimes engage tikanga, some uniquely Māori connection to the issue before the court had always been required. More than 160 years of jurisprudence shows that. One might disparage this view as an "originalist" view of the constitution, but no version of the Blackstonian gloss can legitimately extend to the system of co-governance the majority has promoted in Ellis v R. Abrogating the continuity of the Supreme Court Ordinance 1841 (as re-enacted) and the Imperial Laws Application Act 1988 would involve a constitutional moment for Aotearoa New Zealand, both symbolic and substantial. That would quintessentially be a task for the legislature, or a referendum, not the judiciary. Apart from the inappropriateness of the way in which the constitution has sought to be changed, the majority judgments create serious problems for the rule of law. Already, established principles of private law are being overwritten by tikanga. The majority judgments also lead, it is suggested, to delegation of the judicial function. The article does not take issue with the merits of tikanga, nor does it rule out that in the long term New Zealand might be a more harmonious place for the revolution that is occurring.