McMillan-Schmidt v Police
[2024] NZHC 2250
•12 August 2024
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
AppellantAND
NEW ZEALAND POLICE
Respondent
CRI-2024-463-023 BETWEEN
JOSEPH TE AOHOU MARSHALL
AppellantAND
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 food on the tables of their people.
[4] The essential proposition on appeal is that the Trusts and HRWL, who hold the land on their behalf, could not and should not have prevented them from accessing the
1 I refer to the appellants by their first names in this decision. I intend no disrespect to them. It is only for ease of reference.
2 An ahu whenua trust enables collective guardianship of blocks of land on behalf of landowners. Landowners agree to set up a trust, nominate trustees to manage their property interests and apply to the Māori Land Court for an order establishing the trust.
forests for genuine purposes and that a tikanga-informed approach would have led to a different result in their trials and subsequent sentencings.
Summary of decision
[5] I agree with the District Court Judge’s reasoning that, as the legal owners of the land, the Trusts and the HRWL could (and indeed were obliged to) impose conditions for access to the lands and the forest managers could trespass people who were in breach of these conditions. The relevant deeds of the LTFT and LTRT (the Trust deeds) and company documents were not challenged at the trial and were not in evidence on the appeal. I acknowledge the appellants hold genuine concerns about the way their whenua is managed, but the Police did not have to produce the relevant Trust deeds and directors’ resolutions at the trials in order to prove the charges. And it is not for this Court in a criminal appeal to scrutinise the Trust deeds and directors’ resolutions for conformity with the appellants’ beliefs about the tikanga they say is applicable to them as kaitiaki.
[6] However, I have found that the trespass notices issued to Rayne, Wiremu, and Joseph were overbroad. They were only validly issued as warnings to stay off the land on which they were actually found, not for other forest areas. That means there was no error in finding Rayne’s trespass charge was proved, nor Wiremu’s charge for trespassing on the LRF, nor Joseph’s charges for trespassing on the HRL. But Wiremu and Joseph’s other convictions for trespass cannot stand.3
[7] I also differ from the Judge as to whether the appellants ought to have been discharged without conviction. I have reached the view that the consequences of their convictions were out of all proportion to the gravity of their offending. Accordingly, I allow the appeals against conviction on that basis,4 and I discharge the appellants without conviction.
3 For clarity, the convictions quashed on this basis in respect of Wiremu are CRNs 19069002061; 19069002067; and 19069002071. For Joseph, the convictions quashed are CRNs 190069002077; 19069002079; 19069002083.
4 As discussed further below, an appeal against a refusal to discharge without conviction is a conviction appeal first and a sentence appeal second. There is no appeal against the sentences the Judge imposed.
The trials and sentencings
[8] The progress of the charges through the criminal justice system has been very slow. Rayne made his first appearance on 23 October 2019. His Judge-alone trial (JAT) started, but did not conclude, on 4 August 2020, resuming on 19 May 2021.5 Joseph, Wiremu, and Taumai’s JAT took place on 15 September 2020 and 19 May 2021. The decisions were reserved and delivered on 29 and 30 July 2021.6 Sentencing was to have taken place on 18 October 2021, but ultimately took place on 13 December 2022.7
[9] This appeal was, therefore, heard some 18 months after sentencing and four- and-a-half years after the first appearance of the first defendant to be charged in this case (Rayne).
[10] All of the appellants represented themselves at their JATs. However, they were represented by Mr Shaw at the time of the s 106 applications/sentencing and on appeal.
Circumstances of the offending
[11] The appellants were all charged either with unlawful hunting or wilful trespass, or both.8 It appears the parties all accept that the circumstances giving rise to the charges did occur in fact. In other words, as I understand it, the issues on appeal are properly construed as a challenge to the legal conclusions—rather than the factual conclusions—of the Judge. Notwithstanding challenges to the validity of the Trust deeds and the trespass notices, the parties accept that the appellants were found hunting on LTF, LRF, or HRL lands. In the case of Wiremu, Joseph, and Taumai, the parties also accept that admissions to this effect were made to Police. For this reason, I deal with the Judge’s factual findings briefly.
5 See the chronology in Police v McMillan-Schmidt [2022] NZDC 18163 [Rayne’s s 106 Decision].
6 Police v McMillan-Schmidt [2021] NZDC 15193 [Rayne’s Conviction Decision]; Police v Marshall [2021] NZDC 15188 [Joseph, Wiremu, and Taumai’s Conviction Decision].
7 Police v McMillan-Schmidt [2022] NZDC 25054 [Rayne’s Sentencing Decision]; Police v Marshall [2022] NZDC 18183 [Joseph, Wiremu, and Taumai’s s 106 Decision]; Police v Marshall [2022] NZDC 25087 [Joseph, Wiremu, and Taumai’s Sentencing Decision].
8 All charges were pursuant to either the Wild Animal Control Act (WACA) ss 8(2), 38, and 39(1) (maximum penalty of two years’ imprisonment or $100,000 or both), or the Trespass Act 1980, ss 4 and 11(2)(a) (maximum penalty of three months’ imprisonment or $1,000 fine).
[12] On 8 November 2018, Rayne was trespassed for a period of two years from forests owned by the LTFT, the LRFT, and HRWL, seemingly because he had entered into the LTFT to hunt without a valid access permit.9 On 21 October 2019, Rayne was stopped by a NZFM security guard on part of the LTF land owned by the LTFT. Rayne had with him dogs and a firearm. Evidently, Rayne did not have an access permit or permission to hunt on the LTF land and was aware that he had previously been trespassed. The Judge applied the presumption in s 38 of the Wild Animal Control Act 1977 (WACA) to find that Rayne was unlawfully hunting on the LTF land,10 and had wilfully trespassed onto that land.11
[13] The charges against Joseph, Wiremu, and Taumai arose out of seven separate incidents. Taumai had a forest access permit relating to the LRF and LTF from 18 December 2018 to 12 February 2019, and then again from 31 July 2019 to 25 September 2019. As indicated above, access to the HRL for hunting is restricted to tangihanga only. None of the three remaining appellants had permission to enter the HRL on this basis. Wiremu and Joseph had been trespassed from the LRF and Taupō Estate (which forms part of the HRL) respectively on 21 February 2019 for a period of two years.
[14] On 19 April 2019, all three appellants were seen on security footage to be hunting on HRL. All three admitted they were hunting on that day. The presumption in s 38 of the WACA applied. Accordingly, the charges of unlawful hunting were proved.12 Joseph and Wiremu’s charges of trespass were also proved.13
[15] On 23 April 2019, all three appellants were stopped on LRF lands. Joseph and Wiremu later admitted to Police that they were hunting. Taumai did not. Joseph and
9 Rayne’s Conviction Decision, above n 6, at [77].
10 At [56] and [66]. The presumption contained in s 38 is two-fold. Pursuant to subs (1), where a person is found in any area where wild animals are usually present and had with them equipment capable of being used for hunting or killing any wild animal (including a dog or a weapon), the Court may presume that the person was hunting or killing wild animals in the area. Where the presumption in subs (1) has prima facie been met, subs (2) allows the Court to presume that, where any person is found in an area where permission is required to hunt or kill animals, and the person is unable to produce evidence of their permission, an offence has been committed.
11 At [91].
12 Joseph, Wiremu, and Taumai’s Conviction Decision, above n 6, at [76]–[78].13 At [137].
Wiremu’s unlawful hunting and wilful trespass charges were proved. Taumai’s charge of unlawful hunting was not.14
[16] On 1 May 2019, Wiremu and Joseph were stopped in the LRF. Both admitted to Police that they had been hunting. Their charges of unlawful hunting were proved.15
[17] Surveillance footage showed all three appellants in the HRL on 19 May 2019. All of the defendants acknowledged to Police they were hunting, and the charges of unlawful hunting were proved accordingly. So too, Joseph and Wiremu’s charges of wilful trespass.16
[18] On 19 August 2019, security staff saw Wiremu and Joseph in the LRF. Both admitted that they were hunting. Their charges of unlawful hunting and trespass were proved.17
[19] On 22 August 2019, security staff saw Wiremu on the HRL. Wiremu acknowledged to Police that he had been there with a rifle. The charges of unlawful hunting and wilful trespass were proved.18
[20] On 18 September 2019, security staff stopped Taumai on part of the HRL. He admitted to Police that he was hunting. A charge of unlawful hunting was proved.19
The access policies
[21] At this point it is useful to say more about the policies that regulated the access of beneficial owners to LRFT, LTFT, and HRWL-held lands.
[22] At the relevant time, the Lake Taupō and Lake Rotoaira Forest Trusts Owner Access Policy dated September 2018 (the OAP) applied to the LTF and LRF lands held by the Trusts. It provided for beneficial landowner access permits that were valid
14 At [83]–[84] and [137].
15 At [88] and [137].
16 At [92] and [137].
17 At [96] and [137].
18 At [100] and [137].
19 At [104].
for eight weeks from the date of issue.20 Applicants for these permits signed an undertaking to abide by the applicable terms and conditions of access contained in the OAP.21 The permit could be cancelled at any time by the NZFM.22 Hunting was permitted during daylight hours only and spotlighting was completely prohibited.23 Failing to stop or comply with NZFM staff directions was designated a “major breach”.24 A major breach would result in removal from the forest and the issue of a trespass notice for a period of two years.25 The trespass notice did not apply only to a single area, but would apply to around 12 parcels of land.26 The OAP also provided for an annual review.27
[23] The HRWL Forest Lands Access Policy dated June 2017 (the HRWL Policy) operated on the HRL at the relevant time. The HRWL Policy provided that agreement for beneficial owners to enter and use the land was at the discretion of Taupō Estate Ltd and Lake Taupō Forest Management Ltd.28 Accessing the HRL without an access permit was designated a “minor breach”,29 but not complying with NZFM or security staff was a “major breach”.30 Trespass notices could be issued for any breach.31 They were issued initially for a period of 12 months, after which they were reviewed and potentially withdrawn if there had been no further breaches.32 If the conduct was considered a major breach, prosecution could be sought under cl 4.3. Clause 6 provided a list of about 12 parcels of land to which the trespass notice under the HRWL Policy applies. Clause 7 provided for an annual review of the HRWL Policy.
20 Lake Taupō and Lake Rotoaira Forest Trusts Owner Access Policy (OAP) dated September 2018, cl 3.2.
21 Clause 3.
22 Clause 3.1.16.
23 Clause 3.1.17.
24 Clause 4.1.2(k).
25 Clause 4.1.2.
26 Clause 6.
27 Clause 7.
28 HRWL Forest Access Lands Policy (HRWL Policy), dated June 2017, cl 1.2; Lake Taupō Forest Management Ltd is a subsidiary of the Lake Taupō Forest Trust and the Lake Rotoaira Forest Trust.
29 Clause 4.1(I)(a).
30 Clause 4.1(II)(i).
31 Clause 4.2.
32 Clause 4.2.
Approach on appeal
[24] I must allow the appeals if I am satisfied that the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if I find that a miscarriage of justice has occurred for any other reason.33
[25] A miscarriage of justice in the context of conviction appeals is defined under s 232(4) of the Criminal Procedure Act 2011 (the CPA) as any error, irregularity or occurrence in, or in relation to, or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.
[26] Conviction appeals in respect of Judge-alone trials under s 232(2)(b) of the CPA are conducted by way of rehearing. If this Court comes to a different view on the evidence, the trial judge will necessarily have erred, and the appeal must be allowed. However, the appellate court is not to consider the issues de novo. It is for the appellant to show that an error has been made, taking into account the advantages a trial judge may have had in assessing the evidence.
[27] Appeals against a refusal to grant a discharge without conviction pursuant to s 106 of the Sentencing Act 2002 are considered as a composite appeal against conviction and sentence.34 As the Court of Appeal explained in Jackson v R, the principled basis on which to determine a s 106 appeal is to establish that a miscarriage of justice has occurred by virtue of a material error by the sentencing Judge in entering the conviction.35 In the alternative, it can be argued that a miscarriage has occurred for any reason if the Judge has erred in applying the principles for discharge without conviction set out in s 107 of the Sentencing Act.36
[28] If satisfied either error is established, the appellate court must set aside the conviction, with the result that the sentence appeal does not require determination.37
33 Criminal Procedure Act 2011, s 232(2)(b).
34 Jackson v R [2016] NZCA 627, (2016) 28 CRNZ 144 at [16].
35 At [12].
36 At [12].
37 Jackson v R, above n 34, at [13]. It is only if the conviction appeal fails that the Court must proceed to the second stage of determining whether the end sentence imposed was correct. I note in this case the sentences are not challenged on appeal.
A s 106 appeal is not an appeal against an exercise of discretion. The satisfaction of the threshold requirements for discharge in accordance with s 107 is a matter of fact requiring judicial assessment, and general appellate principles apply.38
[29] I also note Joseph and Taumai required leave to appeal out of time. The Police did not oppose. Leave is granted accordingly.
Issues on appeal
[30] Mr Shaw’s overarching submission is that Judge MacKenzie erred in her assessment of the evidence by failing to view it through a tikanga lens, which ultimately resulted in a miscarriage of justice. So too should the Judge’s approach to the applications for discharge without conviction have been viewed through a tikanga lens. If the Judge had done so, the applications should have been granted.
[31] As I apprehend it, the crux of the appeal (at a high level) is that these kaitiaki should not face any restrictions to access the whenua (that they are beneficial owners of) for the purpose of gathering kai. Thus, any decisions that were made by the Trusts and the HRWL to impose restrictions on their access were wrongly made and could not form the basis of valid trespass notices or result in convictions for trespass and unlawful hunting. Or, in the alternative, an application of tikanga would require an exception to be read into the OAP and the HRWL Policy (together, the Access Policies) to enable kaitiaki to perform their duties without restriction.
[32] Mr Shaw contends that the validity of the Access Policies was assumed by the Judge but, in the case of the ahu whenua Trusts, the validity of the OAP would only be established through relevant Trust deeds in force at the time the OAP was adopted. Thus, the LTFT and LRFT Trust deeds needed to be produced at the trial to ensure that the OAP was issued within the terms of those deeds. Directors’ resolutions were similarly needed to establish the validity of the HRWL Policy. But there was no evidence produced at trial to this effect, nor was any evidence produced to establish that all actions were taken in a manner consistent with the tikanga of Ngāti Tūwharetoa. The failure to do so meant the prosecution was fatally flawed.
38 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [11].
[33] I propose to deal with Mr Shaw’s arguments by addressing the issues in the following way. First, I will address the argument that the trespass notices relevant to Rayne, Wiremu, and Joseph are invalid on the basis that they are so-called “blanket” trespass notices. Secondly, I will discuss Mr Shaw’s arguments about the validity of the Access Policies, including the arguments based on tikanga and whether evidence was needed to establish that the Trusts and the HRWL were not acting outside of their powers in issuing the Access Policies. I will then deal with Mr Shaw’s arguments about the meaning of “owner” for the purposes of the unlawful hunting charges. Finally, I will deal with the issues in respect of the Judge’s decision to decline to discharge the appellants without conviction.
The trespass notices
[34] Mr Shaw’s argument is that the trespass notices issued to Rayne in 2018, and Wiremu and Joseph in 2019, were invalid because they were “blanket” trespass notices. A blanket trespass notice generally purports to ban a person from multiple areas, rather than from one specific place.
[35] The Police accept as a general proposition that truly blanket trespass notices may face difficulties in meeting the requirements of s 4 of the Trespass Act 1980 (being the section Rayne, Wiremu, and Joseph were charged under). Section 4 provides that an occupier may warn a person to stay off a place if:
(a)the person is trespassing or has trespassed on “that place”; or
(b)the occupier has reasonable cause to suspect the person is likely to trespass on “that place”.
[36] The essential challenge under this head is that s 4 allows a person to be trespassed only from “that place”; that is, the place on which they have trespassed or are suspected of trespassing. However, the trespass notices in this case were purportedly issued in respect of no less than 24 forest and land areas.39
39 The trespass notices list 18 parcels of land, although the LTF is listed as including six other forests, which takes the number to 24.
[37] Mr Shaw pointed to current Police instructions on the subject of trespass which note that blanket trespass notices are often held to be invalid by the court.40 This is said to be so because it is difficult to show that a person is reasonably likely to trespass on each and every location listed on the blanket trespass notice, and such notices can also be seen as unreasonably restricting free movement.41 The instructions go on to state that, for this reason, Police officers must not issue, promote, or become involved in serving blanket trespass notices without obtaining legal advice first.42 In this case, a Police officer gave Rayne his notice.
[38] Criticism was also made of the fact that the trespass notice issued to Rayne was left uncompleted because it did not contain a reason for issuance. It is also said that the significant area Rayne was purportedly trespassed from was not delineated. Mr Shaw also drew attention to the form of a trespass notice set out on the New Zealand Police website and submitted that the trespass notices in this case were deficient as compared to that.43
Analysis
[39] Leaving to one side for now the issue of the ability of the legal owners (the Trusts and the HRWL) to regulate access to the relevant whenua, I do not accept that the trespass notices were wholly invalid. The fact that a reason was not specified in the notice given to Rayne is not material when the Police standard form trespass notice (that Mr Shaw used as a comparator) does not itself set out such a requirement. Nor does s 4 of the Trespass Act require written reasons. And in the circumstances of this case, the reasons for the trespass notices were known to their subjects.
[40] Nor do I consider this is a case akin to Police v Heke,44 which Mr Shaw sought to rely upon. In that case, Mr Heke was trespassed from almost 99.5 per cent of public
40 New Zealand Police “Police Instructions – Trespass” (as at 29 August 2022) NZ Police Policy Directory < 14.
42 At 14.
43 New Zealand Police “Trespass Notice Form” (July 2013) New Zealand Police
< Police v Heke DC Nelson, CRI-2011-043-00435, 7 September 2011; counsel for the Crown also referred me to Clarke v Police HC Wellington CRI-2003-485-028, 18 November 2003; and Brown v Police [2017] NZCA 71.
land over which the Nelson City Council claimed authority. The current appeals are not factually similar to Heke, which concerned public land, and therefore engaged issues under the New Zealand Bill of Rights Act.
[41] Of more significance is the argument that the area the appellants were trespassed from was very wide indeed. As Mr Shaw put it, some of the banned forest areas are hundreds of kilometres away from where they live, thus the area they were banned from was random and depended on NZFM’s contractual obligations. Moreover, s 4 of the Trespass Act refers to “that place” in the singular, so the notice should correlate only to “that place,” not others. Tied to this argument is the statutory requirement that someone either has trespassed on “that place” or is likely to trespass on “that place”. It was never proved, however, that the appellants would enter 95 per cent of the places listed in the notice, being the places other than the specific place where they were found which caused the notices to be issued.
[42] I do have concerns about the scope of the notices. However, I am persuaded by the respondent’s submission that the trespass notices would nevertheless have been effective in respect of the LTF for Rayne, the LRF for Wiremu, and the HRL (which Taupō Estate forms a part of) for Joseph. I accept the respondent’s submission that the case of Potaka-Kiu v Police supports that proposition.45 Although a blanket trespass from all forests managed by NZFM appears too broad, the trespass notices are at least valid for the same forest on which each appellant was found that prompted the trespass notice to be served on each of them. This is because the requirements in s 4(1) and (4) of the Trespass Act are met, namely, that an occupier may warn a person to stay off a place if that person is found trespassing on that place and the person does return to that same place after the warning.
[43] But I am not convinced that the authority in Potaka-Kiu supports the validity of the trespass notices in respect of the other forest areas over which they purport to apply to. The concern in Potaka-Kiu was that it could not be known whether all of the occupiers of land on behalf of whom the notice was served actually consented to the notice.46 In this case, both of the Access Policies in place at the time included mutual
45 Potaka-Kiu v Police [2016] NZHC 3063.
46 At [18]–[20].
trespass clauses and NZFM is acknowledged as the occupier of all the relevant forest land.47 I accept, therefore, that consent to serve a mutual trespass notice is not an issue. However, Potaka-Kiu does not discuss the other requirements in s 4 of the Trespass Act.
[44] As noted above, the trespass notices purported to warn the appellants to stay off about 24 forest areas. Taking Wiremu as an example, it was his presence on the LRF land that caused the trespass notice to be served on him in 2019. In my view, therefore, subs 4(1) of the Trespass Act only applies to the LRF land (for the reasons explained above). As to the other 23 forest areas listed on the trespass notice, I am not satisfied that it could be said NZFM had reasonable cause to suspect Wiremu would trespass on any or all of these other areas such that subs 4(2) could apply. As Mr Shaw pointed out, these forest areas are very large and some are very distant from others. Against this background, there is nothing to suggest that Wiremu might trespass on land other than the LRF land, so the trespass notice cannot be supported to its full extent. The same logic applies to Joseph in respect of land other than the HRL. Put another way, after finding Joseph on the HRL land, which is near Turangi, how could NZFM have reasonable cause to suspect Joseph (who also lives in Turangi) would trespass on, say, the Matahina Forest, which is in the Whakatane District, approximately 130 kilometres away?
[45] Accordingly, I conclude that Rayne’s trespass notice was valid to the extent it warned him to stay off the LTF, Wiremu’s trespass notice was valid to the extent it warned him to stay off the LRF, and Joseph’s trespass notice was valid to the extent it warned him to stay off the HRL. While it might be possible, in reliance on the authority in Potaka-Kiu, to argue that the trespass notices are valid in respect of all forest areas listed in the trespass notice, it is not apparent to me how this would be so. It seems to me instead that an “Occam’s Razor”48 situation presents itself, and the simplest application of the law’s general hesitance towards blanket trespass bans (as expressed by Williams J in Potaka-Kui) lends itself to a narrower outcome.
47 OAP, above n 20, cl 6; and HRWL Policy, above n 28, cl 6.
48 A principle from philosophy that can be described most plainly as “the simplest explanation is usually the best one”.
[46] Because an offence under s 4 of the Trespass Act requires a person to return to a place they have been warned to stay off, Rayne’s conviction for wilful trespass stands. However, it also means that only Wiremu’s trespass charges in respect of the LRF and Joseph’s trespass charges in respect of the HRL can stand. Therefore, Wiremu’s convictions for wilful trespass on the HRL and Joseph’s convictions in respect of trespass on the LRF are quashed accordingly.
[47] Some arguments raised by Mr Shaw in respect of the trespass notices remain, however. Mr Shaw contends the trespass notices were invalid from the start (ab initio) because the validity (or vires) of the Access Policies was assumed by the Judge, but not proved beyond reasonable doubt by the prosecution. He also raises the question of whether Access Policies become invalid because, on his argument, they are not tikanga consistent. I discuss those issues below as they also relate to the unlawful hunting charges.
The validity of the access policies
[48] To recap, a person commits the offence of unlawful hunting if they hunt any wild animal on land without the express authority of the owner or occupier of the land.49 Unless a defendant proves on the balance of probabilities that they were not hunting, they are presumed to be hunting unlawfully if they are found in an area where wild animals are usually present with equipment capable of being used for hunting (such as a firearm, a dog, or an adapted vehicle) and are unable to demonstrate they have the express authority of the owner or occupier to hunt on that land.50
[49] There can be no dispute that all four men were hunting. I do not understand that to be in dispute either. The sole issue in relation to the unlawful hunting charges is therefore whether they were hunting without the express authority of the owner or occupier. Mr Shaw raises three broad arguments here.
[50] As indicated above, Mr Shaw argues that the Trust deeds (for the LRFT and LTFT) and directors’ resolutions (for HRWL) were not produced or disclosed, and
49 WACA, s 8.
50 WACA, s 38.
therefore the validity (or vires) of the Access Policies were not proved beyond reasonable doubt. That means the trespass charges “failed in limine” (at the threshold). In addition, it is said that the Access Policies breached tikanga Māori principles, and in particular tikanga o Ngāti Tūwharetoa, in relation to Ngāti Tūwharetoa kaitiakitanga. Tikanga makes a distinction between rights, duties and interests of kaitiaki and other owners, therefore the relevant trustees and directors were required by law to pay special regard and give effect to the rights, duties, and interests of kaitiaki. At the appeal hearing Mr Shaw produced a list of purported breaches of tikanga by the trustees and directors, which included:
(a)a lack of consultation with kaitiaki before adopting any access policies;
(b)the failure to accord primacy to kaitiaki even over health and safety considerations;
(c)the requirement that beneficial owners, and even more so kaitiaki, had to register with the Trusts to commence the access process; and
(d)requirements for kaitiaki to obtain a permit every eight weeks, to show whakapapa, produce ID, stop for security guards, and restricting access to only certain days and hours.
[51] The alleged tikanga breaches also included the initiation of court proceedings against the kaitiaki for breaches of the Access Policies and a bar against the withdrawal of trespass notices once issued.
Did the Trust deeds and directors’ resolutions need to be produced?
[52] I deal first with the contention that the Trust deeds and HRWL’s directors’ resolutions had to be produced by the prosecution, and the failure to do so meant the prosecution should have failed.
[53] Mr Shaw relied on the decision in Mapa v Department of Labour (Mapa)51 to argue that, as soon as the charges were laid in this case, all relevant matters, including the validity of the Access Policies, Trust deeds, and directors’ resolutions, were put in issue by the prosecution. In answer to the respondent’s position—that neither the Trust deeds, directors’ resolutions, nor the Access Policies were elements of the charges the prosecution was required to prove—Mr Shaw contended that they are all required to be proven, because it is the purported breach of the Access Policies that made the hunting unlawful, and which led to the trespass notices underlying the trespass charges.
[54] I do not accept Mr Shaw’s submission. Some discussion of the Mapa case is required first.
[55] Mr Mapa entered New Zealand on a temporary entry permit in 1976. On 2 May 1979, he was convicted on a charge of overstaying. The charge was laid on 12 July 1978. At the time the charge was laid the (Magistrate’s) Court issued a warrant to arrest Mr Mapa, but he did not appear before the Court until 21 February 1979, when he pleaded guilty. In the meantime, on 19 October 1978, the Immigration Amendment Act (No 2) 1978 had come into force. It retrospectively validated entry permits granted before the commencement of the amending Act—that is, before 19 October 1978—but not those “the validity of which is in issue before any Court at the commencement of [the amendment Act]”.52
[56] Mr Mapa’s appeal was successful. The existence of a valid permit and its breach was the basis of the offence, and so the existence of a valid permit was raised in issue when the charge was filed in the Court in July 1978. Because this meant that the permit granted to Mr Mapa in 1976 therefore could not be validated by the amending Act, there was no valid permit and therefore there could be no offence of remaining in New Zealand after it expired.53
51 Mapa v Department of Labour [1980] 2 NZLR 21 (CA) [Mapa].
52 At 22.
53 At 23–24.
[57] Mr Shaw has sought to draw an analogy between the Access Policies in this case and the entry permit in the Mapa case to argue that the existence of valid Access Policies is required to found charges of trespass and unlawful hunting. However, Mr Shaw’s analogy rests on a false premise. In Mapa, the prosecution of the charge of overstaying depended on the ability to establish the existence of a valid entry permit, otherwise a person could necessarily not be charged with breaching its terms.
[58] But a charge of trespass under s 4 of the Trespass Act does not depend on the breach of an access policy. Section 4 only requires that a person is warned to stay off the particular place and for them to trespass on that place again within two years. A person can be warned to stay off a place without the need for the owner or occupier to have an access policy in place; as explained above, a person may be warned by the occupier to stay off any place if they have trespassed there, or where an occupier has reasonable cause to suspect they are likely to do so. Unlike Mapa, where a valid entry permit was the basis of the charge, a charge of trespass does not of itself put the validity of any access policy in issue.
[59] Nor did the charges of unlawful hunting depend on the prosecution establishing the validity of the Access Policies, Trust deeds, or directors’ resolutions. All that is required is the absence of express authority of the landowner (or occupier) to hunt on the relevant land. The appellants had no evidence of such express authority.
Consistency with tikanga
[60] I do not accept the suggestion that the Access Policies (along with the relevant Trust deeds and directors’ resolutions) required proof of consistency with tikanga in order for the charges to be proved. The consistency of the Access Policies with tikanga was raised at the trial. But the claimed inconsistencies could not validate otherwise legally valid trespass notices (to the extent they are valid as I have explained above), and a criminal trial was not the place to delve into a trust order made by the Māori Land Court.
[61] A criminal charge requires the prosecution to prove the elements of the offence beyond reasonable doubt. As Heath J explained in R v Mason,54 the criminal law is codified in New Zealand, so that what constitutes a criminal offence is governed solely by statute. Parliament also has the power to enact legislation conferring exclusive powers to try criminal charges in the Courts that it has created. This means that customary systems of dealing with alleged breaches of societal norms did not survive codification.55 Tikanga, while capable of being meaningfully applied to elements of the criminal process (for example sentencing and disposition), does not vary the statutory requirements for a criminal offence.56
The meaning of “owner”
[62] Mr Shaw also appears to be challenging the unlawful hunting charges on the basis that the meaning of “owner” in s 2 of the WACA should be read in accordance with tikanga to include beneficial landowners under ahu whenua trusts. As a general proposition, Mr Shaw is correct that the decision in Ellis v R means that there is a presumption that statutes are to be interpreted consistently with tikanga as far as possible.57 However, tikanga does not have to be considered in cases where it is not relevant or where consideration of tikanga will not or cannot assist. This includes situations where the suggested consideration of tikanga would be contrary to statute or contrary to binding precedent.58
[63] The Judge in this case found that the Māori Appellate Court’s decision in Eriwata v Trustees of Waitara SD S6 and 91 Land Trust (Eriwata) was the “complete answer” to the question of who may be considered the “owner” or “occupier” in respect of the relevant lands owned by the Trusts.59 This is because Eriwata makes it clear that the decisions made in respect of the relevant land are to be made by the
54 R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695; (upheld by the Court of Appeal in Mason v R [2013] NZCA 310, (2013) 26 CRNZ 464).
55 At [37].
56 At [38]–[39].
57 Ellis v R [2022] NZSC 114, [2022] 1 NZLR 239 at [98].
58 At [117].
59 Eriwata v Trustees of Waitara SD S6 and 91 Land Trust 15 Aotea Appellate MC 192 (15 WGAP
192) [Eriwata]; Rayne’s Conviction Decision, above n 6, at [61]; Joseph, Wiremu, and Taumai’s Conviction Decision, above n 6, at [54].
trustees of an ahu whenua trust. The relevant passage from the Eriwata decision cited by the Judge is:60
When trustees are appointed to an Ahu Whenua Trust, they take legal ownership. The owners in their shares, in the schedule of owners, have beneficial or equitable ownership but do not have legal ownership, and do not have the right to manage the land or to occupy the land. Trustees are empowered and indeed required to make decisions in relation to the land and they are often hard decisions. Their power and obligation to manage the land cannot be overridden by any owner or group of owners or even the Maori Land Court, so long as the trustees are acting within their terms of trust and the general law, and it reasonably appears that they are acting for the benefit of the beneficial owners as a whole. A meeting of owners cannot override the trustees. Decisions to be taken for the land are to be the decision of the trustees. They decide who can enter-and who can reside there and how the land is managed.
[64] Thus, the Judge held that, for the LRFT and LTFT, which are ahu whenua trusts, it is for the trustees to decide how to manage the land. The OAP is the result of governance decisions made by the trustees. The four kaitiaki in this case have a beneficial interest in the land but that interest cannot override the trustees’ governance decisions.61 As for the HRL, this is held by a company, the HRWL. Evidently, because the HRWL is not a trust, the appellants are not beneficial owners of the HRL land.
[65] There is ample precedent that suggests the legal meaning of “owner” is generally not taken to include beneficial owners in the context of property ownership or disputes (such as trespass or unlawful hunting) involving ahu whenua trusts. Although not binding on this Court, the main authority on the issue of who is properly considered an “owner” in the context of ahu whenua trusts is the decision in Eriwata, the relevant passage of which is cited above. In that case, the appellant owned 0.05 of one share in the relevant Māori freehold land and had entered onto the land, lived there, and refused to leave, notwithstanding trespass notices served against her.62 She sought an injunction from the Māori Land Court to prohibit the respondents, the trustees of the ahu whenua trust who administered the land, from issuing trespass
60 Eriwata, above n 59, at [5]; Rayne’s Conviction Decision, above n 6, at [58]; Joseph, Wiremu, and Taumai’s Conviction Decision, above n 6, at [50].
61 Rayne’s Conviction Decision, above n 6, at [61]; Joseph, Wiremu, and Taumai’s Conviction Decision, above n 6, at [57].
62 Eriwata, above n 59, at [1]–[2].
notices against her. The trustees had also sought an injunction against the appellant, on the basis that she was a trespasser.63
[66] The Māori Appellate Court observed that, as a matter of general law, the trustees, acting within the terms of their trust order, had the power to permit occupation and were entitled to an injunction against the trespasser. That power was vested in them, not the Court. Although in that case the appellant had pointed to various provisions in the trust order that suggested a power to permit occupation by the owners, the Court said that not every objective in a trust order could be met in a particular case, and it was not sufficient for the appellant to show the trustees had failed to exercise any particular power. She would have to show the trustees had acted unreasonably or improperly.64
[67] But Mr Shaw nevertheless contends that Eriwata is not a complete answer to this case because it has two important “clawbacks”. The first is the requirement that the trustees must be acting within the terms of trust, and the second is that the trustees must be acting within the general law.
[68] As to the first “clawback”, Mr Shaw, as I understand it, contends the prosecution did not produce the Trust deeds for the Trusts, and therefore did not prove that they were acting within its terms in issuing the OAP and subsequently trespassing the appellants. Mr Shaw also argues that the trustees cannot be acting within the terms of their Trust deeds when they have not acted consistently with tikanga in promulgating access policies to the lands that have restricted access for kaitiaki.
[69] As to the latter “clawback”, Mr Shaw contends the trustees of the Trusts cannot be said to be acting within the general law when there has been a “sea change” in the law as regards the reception and application of tikanga Māori and connected tikanga principles. The same arguments are made in respect of the HRWL held under a company structure. That structure, it is said, does not immunise the company, acting through its directors and resolutions, from being required to make decisions and
63 At [3].
64 At [8].
adopting policies that are tikanga consistent, particularly Ngāti Tūwharetoa tikanga consistent, in relation to matters involving kaitiakitanga.
[70] I am unable to accept that submission. As above, the prosecution was not required to produce the Trust deeds or the HRWL’s directors’ resolutions. The trustees and the company are the legal owners of the land—that is not and cannot be disputed. And the alleged breaches of tikanga are just that, alleged breaches. They were not established at the trial, where there was conflicting evidence about the consistency of the Access Policies with tikanga. The alleged breaches are also not established now.
[71] Most importantly, on its face, it would appear eminently reasonable, indeed necessary, for the trustees and HRWL directors to make access policies following the introduction of the Health and Safety at Work Act 2015 when commercial forestry was taking place on the lands they administer, and that Act imposes a duty to ensure the health and safety of people working there, or who could be put at risk by work there.65 That was always going to be a decision that would cause upset to some. That kaitiaki previously had unfettered access to the whenua does not of itself make a decision to impose some restrictions contrary to tikanga. As put by the Supreme Court in Ellis, “one of the essential strengths of tikanga is its ability to adapt to new conditions”.66 And in Wairarapa Moana ki Pouakani Incorporation v Mercury NZ Ltd (Wairarapa Moana) the Supreme Court emphasised that strict adherence to a rigid hierarchy of principles cannot always have application.67 There will inevitably be exceptions. The adaptation of tikanga is not necessarily a matter of compromise but of applying it to context.68
[72] What is evident in this case is that the trustees (and directors) were of the view that new health and safety obligations meant access to the whenua had to change.
65 Recently in Worksafe New Zealand Mhi Haumaru Aotearoa v RH & JY Trust [2024] NZHC 3872 the High Court held that trustees are a “body of persons” within the definition of “person” in s 16 of the Health and Safety at Work Act 2015, although I note that leave has been granted for a second appeal on that question as well as whether a trust is a “person” (see Worksafe New Zealand Mhi Haumaru Aotearoa v RH & JY Trust [2024] NZHC 315, and Worksafe New Zealand Mhi Haumaru Aotearoa v RH & JY Trust [2024] NZCA 326).
66 Ellis v R, above n 57, at [114].
67 Wairarapa Moana Ki Pouākani Inc v Mercury NZ Ltd [2022] NZSC 142, [2022] 1 NZLR 767 [Wairarapa Moana] at [74].
68 At [74].
Calling into question the management of the relevant land does not assist in the appellants’ argument. If the trustees or directors were not performing their duties in a proper manner, for example by failing to act in accordance with health and safety obligations, it would make it less likely that any decision by them to allow unrestricted access to beneficial owners, including kaitiaki, would be a proper one. I note that, in respect of the LRF alone, the evidence at trial was that there are around 12,000 beneficial owners. I observe it might be thought to be in the best interests of the beneficial owners to know that the trustees have sought to ensure that all those on the land are confirmed to have the necessary whakapapa connections and all are required under trust policies to access the land safely and responsibly.
A further comment on tikanga in the context of this case
[73] I do not agree with Mr Shaw’s submission that the Judge in the District Court never attempted to “grapple” with the impact of tikanga Māori or tikanga Ngāti Tūwharetoa principles, but rather took a “Eurocentric approach”. I note the Judge heard evidence at Rayne’s trial from a former chairperson of the LTFT and LRFT, Mr Asher, that the OAP did not accord with tikanga, and there were concerns about legitimate kai gathering, as well as a perceived lack of consultation with owners. She also heard other evidence from the current Chairperson of the LTFT (who was also the Chairperson at the time of the trial), Mr Ellis, that the trustees were concerned about ensuring access for kai gathering and the OAP was sympathetic to customary rights. The point is that there were (and likely remain) differing views but the decisions were for the trustees (who were elected by owners) to make.
[74] I note at the trial of Wiremu, Joseph, and Taumai, the Chairperson of the LRFT at the time, Mr Smith, gave evidence that the beneficial owners had “pretty much unfettered use of the land” when the LRFT was first established. But, with the advent of the health and safety legislation, the trustees commissioned an independent report on the trustees’ obligations which recommended stricter access requirements. Mr Smith was challenged about whether the trustees were acting in accordance with the objectives of the LRFT and with tikanga, and he agreed that forebears would be disappointed at kai gatherers being before the Court, but also said the tikanga of people’s safety was foremost. As the Judge noted, the question was also raised as to
whether the District Court criminal jurisdiction was the right forum to discuss issues of tikanga, given the LRFT is an ahu whenua trust which the Māori Land Court has the exclusive jurisdiction to constitute such a trust under Te Ture Whenua Māori Act 1993.69
[75] And at Rayne’s sentencing, while the Judge expressed her gratitude for the extensive submissions and evidence on the issue of tikanga, she ultimately considered that it would be “wrong to consider whether the [OAP] is tikanga consistent and to express a view about this”.70 She said to do so within the context of sentencing would “risk exceeding the court’s function”.71 Her Honour noted the caution of Williams J in Ellis that, while Judges may apply tikanga in appropriate cases, they cannot authoritatively declare it for general purposes.72 Her Honour noted that there are other ways to air issues about tikanga consistency such as an application to the Māori Land Court.73
[76] I agree with the Judge that a criminal prosecution was not the place for an assessment of the consistency of the Access Policies, the actions of the Trusts, and the actions of HRWL with tikanga. Nor do I consider the appeals against conviction are the proper place for such an assessment. Context is everything. It would be dangerous to apply in a general way the very large number of broad statements of principle about tikanga that were urged on me in this appeal, and I decline to do so. What is apparent is that the relevant trustees and directors made the sort of hard decisions referred to in Eriwata, which inevitably caused upset to some, and eventually led to some kaitiaki coming before the court on criminal charges. That was unfortunate, and other approaches to resolve the issues might have been preferable, but it did not make for miscarriages of justice in the trials of Rayne, Wiremu, Joseph and Taumai.
[77] However, as I will go on to discuss, at the sentencing stage, although the Judge did engage with tikanga, it is my view she accorded insufficient weight to it, which contributed to an error in not granting these kaitiaki discharges without conviction.
69 Te Ture Whenua Māori Act 1993, s 211.
70 Rayne’s s 106 Decision, above n 5, at [41].
71 At [41].
72 At [41]; citing Ellis v R, above n 57, at [271].
73 At [41].
Discharges without conviction
Rayne’s s 106 decision and sentencing
[78] Rayne’s sentencing did not take place until 13 December 2022, some 18 months after conviction (and three years after the offending). Sentencing had been adjourned pending the imminent release of the Supreme Court’s decision in Ellis in relation to tikanga, which played a large part in the arguments before the Judge.74 The Supreme Court then released its decision in Wairarapa Moana, also touching on the role of tikanga.75 Rayne sought a discharge without conviction under s 106 of the Sentencing Act. Judge MacKenzie declined Rayne’s application.
[79] After summarising the Ellis and Wairarapa Moana decisions, and noting High Court authority where tikanga had been considered in the context of s 106 applications, her Honour then turned to consider the evidence about tikanga in relation to the OAP that was heard at the JAT.76 Mr Asher had given evidence that the OAP is not tikanga-consistent because it fetters the right of access for beneficial owners.77 In contrast, Mr Ellis said that it is tikanga-consistent.78 Mr Tupara, a kaumatua of Ngāti Tūwharetoa, had addressed the Court about the importance of the role of kaitiaki to gather food for the marae.79 Rayne also provided evidence in his affidavit in the form of references from whānau, hapū, and iwi members referring to tikanga concepts of mana and kaitiakitanga.80
[80] The Judge then turned to assess the gravity of the offending, as the first step in the assessment of a s 106 application. Her Honour noted Mr Ellis’ evidence that restrictions on entry into the LTF were to “keep everyone safe” and to prevent a “free for all”.81 She also noted there was no information before the Court as to whether the LTF trespass notice had been rescinded, as the LRF notice had.82
74 Above n 57.
75 Above n 67.
76 Rayne’s s 106 Decision, above n 5, at [10]–[26].
77 At [25].
78 At [25].
79 At [26].
80 At [26].
81 At [34].
82 At [35].
[81] She observed that there is no tariff judgment in place for unlawful hunting but that it had been said the substantial penalty increase could be safely taken as a signal that Parliament intended greater deterrence as a result.83
[82] The Judge referred to Rayne’s deliberate decision to be on LTF land on 21 October 2019 when he had no access permit and was trespassed, inferring that Rayne was aware of the OAP and that a permit was required. She also noted that he was in control of a firearm.84
[83] Turning to consider Rayne’s personal mitigating factors, Mr Shaw had submitted that Rayne was only 26 years old (at the time of sentencing) had good employment and no previous convictions. Rayne had an important role as kaitiaki, was a caring person, and was strongly supported by kaumatua. There was also the impact of a conviction on Rayne’s mana.85
[84] The Judge expressed her gratitude for the extensive submissions and evidence on the issue of tikanga, and acknowledged Rayne’s views. She ultimately considered that it would again be wrong to express a view about the OAP’s consistency with tikanga at sentencing.86 There were other ways to air issues about tikanga consistency, such as an application to the Māori Land Court. It was up to the LTFT, not individuals, to make decisions about the LTF land. Rayne should not have ignored the trustees’ decisions even if he had a legitimate kai gathering purpose.87 She considered there was a lack of information about whether Rayne was remorseful.88
[85] Ultimately, the Judge accepted that she could take into account the revocation of Rayne’s firearms licence, Raynes’s status as a kaitiaki, that he was kai gathering, the strong support by kaumatua and whānau, and the effect on his mana. Also taking into account that the offending was a one-off incident, the Judge considered the gravity of the offending to be at the “lower end of the scale”.89
83 At [36].
84 At [37].
85 At [38].
86 At [41].
87 At [42]–[44].
88 At [46].
89 At [48]–[49].
[86] The Judge then turned to consider the direct and indirect consequences of the convictions, focussing first on the loss of the firearms licence. Her Honour was of the view a conviction would not have an impact because the licence had already been revoked, and revocation could be challenged.90
[87] She acknowledged the impact on Rayne’s mana, given his role as kaitiaki,91 but considered there was no significant loss of opportunity to gather food, given that it would seem access permits to both the LRF and the LTF lands had been reinstated.92 Rayne could continue in the role of kaitiaki, but not fully, given the difficulty in gathering kai without a firearm.93 However, her Honour was also not convinced that those consequences arose from conviction, rather from the finding of guilt.94
[88] The Judge then considered whether the consequences of conviction were out of all proportion to the gravity of Rayne’s offending. Although Rayne’s offending was on the lower end of the scale, it was a “decision consciously made”, and Rayne had control of a firearm.95 She concluded that the consequences of conviction were not out of all proportion to the gravity of the offending.96 Her Honour agreed that tikanga concepts could be infused into the sentencing process, but ultimately did not consider that the relevant concepts meant a discharge without conviction could be granted.97
[89] As a final point, the Judge addressed a submission that the delays in the case were a relevant consideration. There were systemic, COVID-19-related, delays pre- trial, then post-verdict delays that were primarily defence-related. The systemic delay would be taken into account via reduction in sentence.98
[90] The Judge ordered Rayne to come up if called upon within six months.99 A review of sentencing decisions indicated community work could be the appropriate outcome, but she stepped back from that given this was a one-off incident, Rayne was
90 At [53].
91 At [54].
92 At [55].
93 At [56].
94 At [61]–[52].
95 At [63].
96 At [64].
97 At [65].
98 At [67].
99 Rayne’s Sentencing Decision, above n 7, at [12].
likely kai gathering, his role as kaitiaki, the likely loss of mana, revocation of his firearms licence, and the systemic delay.100 She also said she hoped he took steps to restore his firearms licence and stressed the importance of the context of the offending.101
Joseph, Wiremu, and Taumai’s s 106 decision and sentencing
[91] The Judge likewise declined to discharge Joseph, Wiremu, and Taumai without conviction.
[92] In assessing the gravity of the offending, she noted the deliberate decision- making on their part.102 The scale of the offending was particularly relevant to Joseph and Wiremu given the number of incidents.103 Firearms were present on two occasions.104 There was evidence that the kai gathering was sometimes successful.105 She concluded that Wiremu and Joseph were the most culpable, with Taumai’s culpability being slightly less.106
[93] The Judge then turned to the mitigating factors. Her Honour acknowledged the views held about access to the LRF and HRL, the importance of kaitiakitanga, and the importance of kai gathering for the marae.107 However, the Judge again explained her conclusion that it would be wrong to express a view about the consistency of the Access Policies with tikanga.108 She said the defendants’ belief that they were acting in accordance with tikanga needed to be viewed in context, being that the LRFT and HRWL had the ability to set policies in relation to their own land and the defendants should not have ignored the trustees’ decisions in relation to the access policy for kai gathering.109 She also explained that nothing turned on the fact that Wiremu and
100 At [10].
101 At [13].
102 Joseph, Wiremu, and Taumai’s s 106 Decision, above n 7, at [59(b)].
103 At [59(a)].
104 At [59(c)].
105 At [59(d)].
106 At [60].
107 At [62].
108 At [64].
109 At [66].
Joseph’s trespass notices in respect of the LRFT had now been revoked, given that they were in place at the time of the offending.110
[94] Beginning with Wiremu, her Honour accepted the mitigating factors that could be taken into account were good character, revocation of his firearms licence, the impact on mana and his role as kaitiaki, and that he is supported by kaumatua.111 She assessed the gravity of his offending as being “moderately serious”.112
[95] Turning to Joseph, her Honour acknowledged the mitigating factors of remorse, good character, loss of his firearms licence, and impact on mana and Joseph’s role as kaitiaki. She assessed the gravity of his offending as “moderately serious”.113
[96] Similar mitigating factors were present for Taumai, but the gravity of his offending was considered “moderate”.114
[97] Next, the Judge considered the consequences of conviction. Her Honour again noted that the loss of the firearms licence was a heavy price to pay, but that this arose from the finding of guilt and could be contested. She stressed that there was no suggestion in the evidence of any improper behaviour in terms of the use of the firearms.115 She also noted that they would still be able to gather kai, just not with a firearm, and that the defendants were actually given permits to access the HRL for tangihanga purposes.116 The Judge acknowledged the likely reduction of mana.117
[98] The Judge did not, however, consider that the consequences were out of all proportion to the gravity of the offending. As with Rayne, that assessment was to be made in the context of a conscious decision to ignore the Access Policies.118 The consequences were “ordinary consequences” that would flow just as much from the particular finding of guilt.119 She concluded that the relevant tikanga regarding kai
110 At [68]–[69].
111 At [74].
112 At [75].
113 At [80].
114 At [85]–[86].
115 At [90].
116 At [95].
117 At [96].
118 At [103].
119 At [108].
gathering, kaitiakitanga, and mana, while important, did not mean that a discharge without conviction should be granted.120
[99] Taumai was sentenced to pay a $450 fine; that was a fine on each unlawful hunting charge of $150.121 The Judge was not prepared to impose a deferred sentence as she had done for Rayne, given there were three separate incidents.122
[100] Turning to Joseph and Wiremu, the Judge considered that they were substantially similar in terms of culpability and personal factors.123 Referring to authority, her Honour explained that community work in the vicinity of about 300 hours would be the likely outcome.124 However, “by a very narrow margin”, the Judge again stepped back from a sentence of community work.125 She was particularly influenced by the revocation of the firearms licence, coupled with the delay in sentencing.126 The final sentence for each of Wiremu and Joseph was $750 ($150 for each incident, despite that Wiremu faced an additional charge).127
Relevant law
[101] The focus of an appeal against a refusal to grant a discharge without conviction is on the identification of any material error in entering a conviction, or establishing a miscarriage has otherwise occurred in applying the principles in s 107 of the Sentencing Act. Section 107 provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[102] The assessment for considering a discharge without conviction involves a three-step process.128 First, the gravity of the offending is determined, with a
120 At [109].
121 Joseph, Wiremu, and Taumai’s Sentencing Decision, above n 7, at [19].
122 At [18].
123 At [20].
124 At [22].
125 At [23].
126 At [24].
127 At [27].
128 Prasad v R [2018] NZCA 537 at [11].
consideration of all the aggravating and mitigating features of the offence and the offender. Next, the identification of the direct and indirect consequences of conviction is required. There must be a “real and appreciable risk” that the identified consequences will occur. The nature, seriousness, and degree of likelihood of the identified consequences is material.129 The third step is to evaluate whether those consequences are out of all proportion to the gravity of the offence. If the Court decides that they are out of all proportion it must still consider, as a matter of residual discretion, whether to grant a discharge without conviction (although it would be rare to decline to do so).130
Rayne
[103] Although I agree with the Judge that Rayne’s offending was at the lower end of the scale, I would go further and say it was of very low gravity. It was a one-off incident by a then 23-year-old with no previous relevant convictions. While it was the result of a deliberate decision, it was also a decision based on Rayne’s honestly held belief that his kaitiaki activities should not have been restricted. And he was only on the land to discharge his kaitiaki obligation to gather kai. The Judge expressed some scepticism about that, given Rayne had said he was looking for his dog. But all the affidavit evidence in support of Rayne would suggest there would be no other reason for him to have been there. Thus, any lack of remorse needs to be considered against that background and in my view is of little moment. He had a firearm, but he was licenced, and there is no suggestion at all of any concerning behaviour relating to the firearm.
[104] The Judge agreed that Rayne had already paid a heavy price by the loss of his firearms licence. But she did not consider a conviction would impact on revocation, as the Police had already revoked the licence, and there was a mechanism for challenge. This is the first point at which I disagree with the Judge. Rayne’s firearms licence had been suspended, and then revoked, after he was found guilty.131 But a
129 R v Hughes, above n 38, at [82].
130 [D] v R [2024] NZCA 297 at [9].
131 Rayne’s Conviction Decision was dated 29 July 2021. The notice of temporary suspension while revocation is suspended 11 August 2021. Rayne’s firearms licenced was then revoked on 20 October 2021.
discharge is a deemed acquittal.132 In my view, it is self-evident that a (deemed) acquittal on Rayne’s charges would make for a strong (or at least much stronger) argument for reinstatement of his licence. The respondent responsibly did not suggest otherwise. Mr Shaw said reinstatement of licence was not a possibility while appeals were on foot. Accordingly, the consequence of conviction in this regard was serious.
[105] Also self-evident is the consequential greater difficulties to the ability to hunt and gather, which is an obligation of the kaitiaki role. The Judge said it was not apparent there was a significant loss of opportunity to gather food for whānau and marae given that, at least in relation to the LRF (and potentially the LTF), access had been reinstated. But that does not take into account the evidence about the difficulties (and potential dangers) in gathering kai without a firearm.133 Again, the Judge simply considered that an application for reinstatement of the licence would be the answer. But as above, an application for reinstatement would face the hurdle of the convictions.
[106] Nor did the Judge take into account the consequences of conviction that would flow to Rayne’s whānau and marae. That, in my view, was an error, when there was evidence provided about the benefits (and indeed necessity) of Rayne being able to provide his people with food. I consider that a wider assessment of consequences was required, recognising that the consequences for Rayne go beyond him as an individual. His role and obligations as a kaitiaki are to his whānau, hapū, and marae. In my view, when those wider consequences are taken into account, already they are greater by a considerable margin than the Judge assessed.
[107] Next is the impact on Rayne’s mana. The Judge acknowledged that Rayne’s mana would likely be reduced. But she went on to find that reduction in mana equally flowed from the finding of guilt, which she assessed as the commission of a hara. The problem with that analysis is that it again fails to account for the consequences that flow from Rayne’s convictions to Rayne’s whānau and marae, when their access to an important food source has been reduced over the last four years (which have been especially difficult ones, given the COVID 19 pandemic), impacting on their
132 Sentencing Act 2002, s 105(2).
133 Rayne explained in his affidavit that while his dogs could hunt down animals such as pigs, they still had to be killed with a knife and this is dangerous. And it is very difficult to corner and catch deer.
obligations regarding pou manaaki (caring for one another)—which itself can result in a loss of mana to the marae. And it also fails to consider the fact that the Trusts reinstated access for kaitiaki purposes, from which it may safely be inferred that they were alive to the need to restore balance.
[108] There was a considerable amount of material put forward on behalf of Rayne, attesting to his skills, responsibilities, and contributions to his people. I note some similarities to the more recent case of Green v Police.134 There, a kaumatua who committed offending of very low gravity had been declined a discharge on the basis that the effect on his mana was an ordinary consequence of conviction.135 He was successful on appeal on the basis that the consequences of conviction, particularly the impact on his mana, would be significant and were not ordinary.136 The loss of a firearms licence was a relevant factor too, when the offending led to revocation, and the associated stress and loss of mana as a result.137 The firearm in that case was used for recreational hunting to provide meat for whānau and others, and the appellant was the Mahikai Kaiako (hunting teacher) for the whānau.138 Justice Andrew concluded that a discharge could serve to restore or prevent the loss of mana.139
[109] In this case, where Rayne is not a recreational hunter but has positive obligations to provide for his people, I consider the impact on mana to be potentially very significant and not an ordinary consequence of conviction.
[110] In my view, Rayne presented a clear case for a discharge without conviction. The sentence imposed on Rayne—to come up if called upon—served no useful sentencing purpose when Rayne was sentenced so long after the offending itself and there had been no repeat during those three years. In contrast, a discharge without conviction would have had a desirable and rehabilitative effect.
[111] Accordingly, the appeal is allowed. Rayne’s convictions and sentence are quashed and he is discharged without conviction.
134 Green v Police [2024] NZHC 387.
135 At [12].
136 At [41].
137 At [43].
138 At [44].
139 At [44].
Joseph, Wiremu, and Taumai
[112] I will not unnecessarily lengthen an already lengthy decision. Exactly the same reasoning applies to Joseph, Wiremu and Taumai. In my view, they ought to have been discharged without conviction.
[113] I also consider their offending to be of low gravity, despite that it was not a “one-off” and Wiremu and Joseph are older. As I have found above, some of the trespass notices were overbroad, so Joseph and Wiremu’s charges have decreased.
[114] In common with Rayne, Joseph, Wiremu, and Taumai have no previous relevant convictions. Wiremu and Taumai were first-time offenders. Joseph, at age 60, had only a few historic and minor driving convictions. Their offending was likewise the result of a genuine belief that their kaitiaki roles and obligations should not have been restricted. They are valuable members of their community. Discharges without conviction would, for them too, have had desirable and appropriate rehabilitative effect.
[115] Joseph’s, Wiremu’s, and Taumai’s appeals are also allowed. Their convictions and sentences are quashed and they are discharged without conviction.
Grau J
Solicitors:
Ord Legal, Wellington for Appellants Crown Solicitor, Rotorua for Respondent
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