With degrees from three countries and, despite the Chief Justice’s praise for a landmark Privy Council win over Court of Appeal judges, human rights barrister Dr Tony Ellis hasn’t made Queen’s Counsel yet.
Proud of his contribution to the law, primarily through a succession of landmark cases challenging the justice system, Tony acknowledges he has made himself unpopular with “the powerful”.
Several of his applications for silk have been turned down.
His efforts on behalf of offenders often regarded as lost or hopeless causes may have got under the skin of the judiciary and the justice system, but have had some spectacular results of significance.
He rates the landmark case on behalf of Fa’afete Taito, who was convicted of aggravated robbery and sentenced to seven years imprisonment, but refused legal aid by the Court of Appeal, with his appeal dismissed without a hearing in 1996, as his most memorable moment.
In January 2002, the Privy Council ruled in the Taito case that the New Zealand Court of Appeal was effectively engaged in systematic abuses of due process. The Privy Council found the process a fundamentally flawed and unlawful system. At the time of that successful appeal, Tony was reported as estimating more than 1,500 criminal appeals were improperly dismissed over the previous 10 years.
“I got a phone message from the Chief Justice congratulating me on Taito.”
Here’s the recorded message the Chief Justice left on his phone:
“Tony, it’s Sian Elias, I’m just ringing to congratulate you on an outstanding win. I did think that that would happen. But there are very few times in one’s professional life that you carry through a case as difficult and requiring as much courage. So, very well done, thank you.”
“You don’t get recognised in New Zealand. I get recognised far more overseas than I do here and I’ve never really talked about Taito in a public way. But the Chief Justice’s message gives some kind of personal recognition,” he says.
A memorable breakthrough
In another ground-breaking moment last October, he became the first lawyer in the world to be invited to give oral submissions on a successful human rights case before the United Nations Human Rights Committee in Geneva.
“That’s something I won’t forget.”
The case is Miller and Carroll, two New Zealand rapists who alleged arbitrary detention and lack of appropriate and timely rehabilitation treatment.
The UNHRC ruled in April their rights were breached and their preventive detention sentences should be reconsidered, with steps taken to release them. It was reported at the time that the findings could lead to about 850 prisoners serving the longest jail terms available having the way their sentences were administered revisited.
At the time Tony Ellis said that while New Zealand was a signatory to the international covenant, it did not have to implement anything the committee said, but he was hopeful the government would look at it.
Justice Minister Andrew Little said the committee’s rulings were not made lightly and he would take advice from officials before determining a course of action within six months.
In May, the 66-year-old appeared at the Privy Council on behalf of former Pitcairn mayor Michael Warren, who was found guilty in 2016 of 22 charges relating to child pornography images.
The Pitcairn case began as a child pornography case and developed into a constitutional case about the independence of judges and how they are selected and appointed.
The appeal against conviction focused on constitutional and other legal challenges during his pre-trial hearings. Mr Warren argued that his right to a fair trial by an independent tribunal under s 8 of the Pitcairn Constitution was breached by, amongst other things, the appointment process and remuneration arrangements for Pitcairn judges (who are appointed primarily from the ranks of sitting and retired New Zealand judges).
The law lords have yet to deliver a decision on Michael Warren’s case.
From Wales to Essex to Melbourne
Raised in Wales and the south-east of England, in and around Colchester, Tony Ellis studied commerce and only took up law after he and his wife Jean emigrated to Australia in 1976.
He was working at Essex University in 1973 as permanent secretary of the student union when he met Jean, who taught herself computer programming and became an information technology specialist. “I was training to become a chartered secretary, which is in between accountant and lawyer.”
As assistant company secretary at the Melbourne Age he got to see the libel writs that came in regularly – an interest which resulted in him doing a law degree at Monash University.
The couple moved from Melbourne to Hamilton in 1981, after Jean got a job with the then Dairy Board and Tony took up lecturing in commercial law, first in Waikato, then at Victoria University of Wellington.
They moved to Wellington in 1984 when Jean was promoted to database manager at the Dairy Board. Tony was a Parliamentary committee clerk and became Clerk-Assistant of the House of Representatives.
He worked for various State Owned Enterprises, including Coalcorp, before becoming a barrister in 1990. He shared Wellington chambers with former Labour Justice Minister Bill Jeffries for about 14 years.
“My eldest son Owen ran a software company he started after graduating from Otago. He set up a TradeMe business in the early days on TradeMe and within the first year became their biggest seller.
“Over the years he developed software for the large sellers on TradeMe and developed a large business, which my wife joined him in. Then he went offshore and for the last five years he and his Vietnamese wife Hanh have been based in Ho Chi Minh City. He has changed the emphasis of the business and is now a crypto-currency developer thinking of relocating to Portugal.
“Our youngest son Ross is graduating in July with a Bachelor of Animation.”
Tony’s doctorate from La Trobe University was on the subject of developing human rights before the United Nations Human Rights Committee and in New Zealand courts from a practitioner’s perspective.
In January he takes up a six-month Fellowship at the Harvard Law School Human Rights Program, researching the arbitrary detention of the intellectually disabled from an international and comparative perspective. “I’m looking forward to that,” he says.
“One of our prime activities is travel – we went to Sicily before the UN hearing, then we went to Owen’s wedding in Las Vegas, then Mexico City after that, London in May, and we went to Portugal for a couple of weeks.
“Travel and family are important in our lives. When we lived in London I had an aunt, the last of my father’s generation, who lived in Baker Street in the West End for 60 years.
“I stayed there whenever I was in London, but she died on Easter Sunday. And I didn’t quite make it over.”
Tony’s father was an electronics engineer and separated from his mother when Tony was five. “I don’t really know what she did. My father married again when I was 12 or 13.
“We lived in Wales for a while; both my mother and my father’s mother were Welsh and we have a family tree that takes us back to being a coal mine owner in North Wales in 1775.
“I’m not a sports fanatic and listen to a lot of music. I got addicted to the Concert Programme when I worked in Parliament, because you always had to have radio on to know what was happening in the House. I got stuck with that.
“I like Handel, and 18th century German Baroque composer Georg Telemann – that era. Music is supposed to stimulate your brains. I am hopeless at music myself.
“I read a lot, mainly historical novels and occasionally biographies. I could answer a couple of questions on Mastermind on medieval history.
“At the moment I’m reading two books at once, one upstairs and one downstairs. One from a series by English novelist Patrick O’Brian who writes about the navy in the Napoleonic wars – Master and Commander is one of his.
“The other one is by Robert Low, who lives in Scotland and writes historic novels on the Vikings and also Robert the Bruce, William Wallace and the Braveheart era. Occasionally I will read American civil war history and US presidents.
“When we travel I like to see cathedrals and castles. I’ve seen them in England, Wales and Scotland, quite a number in northern France, Spain, and Italy. I have about 20 historic prints of various cathedrals and castles at home.”
Steak and kidney pie
“I collect art nouveau pieces made by Manx designer Archibald Knox (1864 – 1933), prime designer for Liberty’s in London. He has a series of pewter and silverware which became popular when Brad Pitt began collecting it – 1920s art deco style. I get pieces from time to time.
“I like walking, but not in a serious way.
“And I like cooking but don’t get as much opportunity as I used to. I’m a bit of an English traditionalist so I do steak and kidney pie, with red wine. A whole fish too. It’s nice to be able to cook something. I like a good pinot noir from Central Otago, and Jean likes merlot. We also fancy an occasional sav blanc, chardonnay, and in summer rosé and the odd French wine.
“Lord Nelson would have to be one of my dinner guests – he was a bit of a lad, a character. And I hope Lady Hamilton would come too. Maybe Julius Caesar.
“I like watching Britannia about the Roman invasion of Britain. And Versailles. We watch a lot of BBC programmes like Isabel and Ferdinand, and Scandinavian programmes on BBC. There’s not much on New Zealand television.
“We don’t have pets any more. We had the family dog, a cuddly Samoyed who lasted until he was 18. And in Auckland we looked after our son’s cat. But it’s tricky when you travel a lot. But dogs are good company and good for your health.
“My VW Polo is not very exotic. We used to drive Subaru Outbacks but we have a very small car park at our apartment and the car doors kept banging on the wall.”
In his early 20s at Essex University he joined the British Labour Party and became chairman of the university’s association of scientific and technical managerial staff, a white-collar union.
“I got involved with the Council for Civil Liberties in England and the legal aspects of it interested me. I turned to law. When I first started as a lawyer I was a commercial lawyer and lectured in commercial law. It was four or five years before I turned to human rights law.
“When I was secretary of the student union at Essex University, there was a major demonstration. There was a student picket to stop some new computers coming in – something about education cuts.
“A hundred or so police arrived to try to break the picket. There were about 300 students. Most of the student executive got arrested and after they had been detained for 24 hours, I took some legal advice and instructed solicitors to issue 100 writs of habeas corpus. The Deputy Chief Constable then advised they would all be released.
“The students were released from custody and all were charged. A deal was made and most got the equivalent of diversion, but some defended themselves, including the president of the union, Colin Beardon, who defended himself and won, basically because the police lied about what happened.
“That sparked my interest in civil liberties and human rights. It was an eye-opener, because I did not expect the police to be lying.
“Colin is a retired professor and IT specialist living on Waiheke Island.
“I did wonder once whether I should try politics, but I’ve probably got too old for that. I think I would have tried it. Maybe Speaker of the House, which is a very challenging position and something of great interest.”
Jock Anderson email@example.com has had a long career as a journalist, with a particular focus on lawyers and the justice system.