McMillan-Schmidt v Police - [2024] NZHC 2250

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-007

[2024] NZHC 2250

BETWEEN
RAYNE DAKOTA MCMILLAN- SCHMIDT

Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2023-463-008

BETWEEN

WIREMU KIEHL MARSHALL
Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2024-463-023

BETWEEN

JOSEPH TE AOHOU MARSHALL
Appellant

AND

NEW ZEALAND POLICE

Respondent

CRI-2024-463-024

BETWEEN

TAUMAIHIORONGO LANCE TE AHO- O-TE-RANGI DUFF-MARSHALL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 May 2024

Counsel:

A Shaw for Appellants

K Bucher for Respondent

MCMILLAN-SCHMIDT v NEW ZEALAND POLICE [2024] NZHC 2250 [12 August 2024]

Judgment: 12 August 2024

JUDGMENT OF GRAU J

[Appeals against conviction and sentence]

TABLE OF CONTENTS

Introduction [1]

Summary of decision [5]

The trials and sentencings [8]

Circumstances of the offending [11]

The access policies [21]

Approach on appeal [24]

Issues on appeal [30]

The trespass notices [34]

Analysis [39]

The validity of the access policies [48]

Did the Trust deeds and directors’ resolutions need to be produced? [52]

Consistency with tikanga [60]

The meaning of “owner” [62]

A further comment on tikanga in the context of this case [73]

Discharges without conviction [78]

Rayne’s s 106 decision and sentencing [78]

Joseph, Wiremu, and Taumai’s s 106 decision and sentencing [91]

Relevant law [101]

Rayne [103]

Joseph, Wiremu, and Taumai [112]

Introduction

[1] The appellants, Rayne McMillan-Schmidt, Wiremu Marshall, Joseph Marshall, and Taumaihiorongo (Taumai) Duff-Marshall appeal their convictions and the refusal to discharge them without conviction for charges of unlawful hunting and trespass.1

[2] The four tāne belong to Ngāti Tūwharetoa iwi and to Otūkou marae. They are beneficial owners of the whenua on which they were hunting. They are also kaitiaki whose role involves protecting and looking after the environment including hunting to provide kai for their whānau, marae, and hapū. The whenua on which the appellants were hunting is in the forest areas around Lake Taupō, which relevantly encompasses areas known as the Lake Taupō Forest (LTF), the Lake Rotoaira Forest (LRF), and Hautū-Rangipō Lands (HRL). This whenua is owned and administered on behalf of the beneficial owners by ahu whenua trusts, the Lake Taupō Forest Trust (LTFT) and the Lake Rotoaira Forest Trust (LRFT) (together, the Trusts),2 as well as by a company associated with Ngāti Tūwharetoa, Hautū-Rangipō Whenua Ltd (HRWL). The whenua is managed day-to-day by New Zealand Forest Managers Ltd (NZFM), a forest management organisation that provides management services to commercial forest owners.

[3] In the past, kaitiaki had unrestricted access to those areas to hunt, but, at the relevant time, all of the beneficial owners of LTF, LRF, and HRL land required a permit to hunt (although, for HRL, hunting was restricted to tangihanga). The appellants did not have permits or permission to hunt on the land, and three of them had previously been trespassed. But all four continued to hunt for kai there. They believed, and continue to believe, that they should not have been subject to any restrictions in discharging their kaitiaki duties on their whenua and putting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2250
Decision Date: 12 August 2024

CaseChat Overview and Summary

The appeal was heard by Grau J in the High Court of New Zealand. The appellants, Rayne McMillan-Schmidt, Wiremu Marshall, Joseph Marshall, and Taumaihiorongo Duff-Marshall, appealed their convictions and sentences for unlawful hunting and trespass. They argued that the restrictions on their access to their ancestral lands were inconsistent with tikanga and that the trespass notices were overbroad. The court found that while the trespass notices were valid for the specific areas where the appellants were found, they were not valid for other areas listed on the notices. The court also found that the appellants' convictions were disproportionate to the gravity of their offending and allowed the appeals against conviction, discharging the appellants without conviction. The court highlighted that the consequences of conviction, particularly the impact on the appellants' roles as kaitiaki, were significant and not ordinary, and that a discharge without conviction would have had a desirable rehabilitative effect.

Orders