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…
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- Case
- [2024] NZHC 2250
- Decision Date
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