R v Iti

[2007] NZCA 119

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA267/06
[2007] NZCA 119

THE QUEEN

v

TAME ITI

Hearing:6 March 2007

Court:Hammond, O'Regan and Wilson JJ

Counsel:A T Sykes and J M Pou for Appellant

E M Thomas for Crown

Judgment:4 April 2007 at 11 am

JUDGMENT OF THE COURT

The appeal is allowed, and the convictions are set aside.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

INTRODUCTION  [1]

The issues on the appeal  [3]
The events of 16 January 2005  [6]
What the case is not about  [12]
What the case is about  [15]
The decision in the District Court  [20]
Was the ātea a public place?  [24]
The discharge of the live rounds  [40]

BUT DID MR ITI DO SOMETHING PUNISHABLE BY LAW?  [52]

Some concluding remarks  [65]

Introduction

[1]       Mr Iti was charged indictably with two counts of unlawful possession of a shotgun in a public place on 16 January 2005.  The offences were alleged to have taken place at Reids Road near Ruatoki, and later that day at Tauaarau marae.  The charges were laid under s 51(1) of the Arms Act 1983.

[2]       Mr Iti elected to be tried by a Judge alone in the District Court.  After a four-day hearing in the Tauranga District Court on 12-16 June 2005, although he was only required to give short reasons, Judge McGuire chose to deliver a fully reasoned judgment on 30 June 2005.  Mr Iti was convicted on both charges.  He was subsequently fined $300 plus court costs on each charge.  He now appeals against his convictions, to this Court.  Technically, the reserved judgment of Judge McGuire is a “verdict” for the purposes of this appeal, which accordingly falls to be determined under s 385 of the Crimes Act 1961.

The issues on the appeal

[3]       These charges arose in a most unusual context.  On the day in question Mr Iti participated in two wero (challenges) during which he discharged a firearm as part of a historically unique occasion when the Waitangi Tribunal entered the Ruatoki Valley to hear Tuhoe grievances dating from the 19^th century.

[4]       There are two issues on the appeal before us.  First, whether the ātea of the Tauaarau marae was, at the material time, a “public place”.  Secondly, whether Mr Iti’s acknowledged possession of a firearm was “without lawful purpose”.

[5]       These issues can only be understood in the context of the events of that particular day, to which we now turn.

The events of 16 January 2005

[6]       Tuhoe lodged a claim with the Waitangi Tribunal seeking redress for certain grievances resulting from the confiscation of land and other Crown actions, in the 19^th century. 

[7]       On Sunday 16 January 2005 the Waitangi Tribunal, together with Crown representatives, travelled to Ruatoki to commence a week of hearings involving six hapu in relation to the Tuhoe claim. 

[8]       Tuhoe constructed a ritual, which in part involved a re-enactment of Tuhoe’s account of what had occurred some 150 years ago.  The Tribunal members sat in a horse-drawn dray and were escorted by Tuhoe warriors on horseback up until the “confiscation line”.  This marked the point up to which land was taken from Tuhoe in the 1860s.  From there the Tribunal and its accompanying persons proceeded past burning vehicles.  These symbolised for Tuhoe what some described as a “scorched earth” policy by the Crown at the time.  The Tribunal and the Tuhoe party then proceeded to the Tauaarau marae of Ngati Rongo.

[9]       Mr Iti took a shotgun, with some live ammunition and some blanks, to Reids Road, which is the road leading to the confiscation line.  There a fearsome haka, led by Mr Iti was performed.  It is common ground that Mr Iti, during this part of the wero, discharged this firearm twice, using live ammunition on at least one of those discharges.  In doing so, on the Judge’s findings, he “pointed his firearm into the farming property adjacent to Awahou and Reids Road away from the [members of the] public” (at [10]) who were present at that time.

[10]     Later that day, whilst standing on the ātea at Tauaarau marae, Mr Iti discharged at least one live cartridge from a shotgun into a New Zealand flag lying on the ground of the marae ātea.  The ātea, about which we will say something more later in this judgment, is sacred ground abutting the wharenui (meeting house).  An invitation had been issued by one of the organisers of the challenge to the public to be present at the marae.  On this second occasion there were 500 to 600 persons present, including the Waitangi Tribunal and its officials.

[11]     These events attracted considerable media attention.  They were filmed by television cameramen.  Some television film was produced in evidence.  Counsel asked us to view, and we have done so, a segment of some three minutes or so of television film as to what occurred on the ātea of Tauaarau marae.

What the case is not about

[12]     It is important to be clear from the outset what this case is not about.  No concern was raised by anybody as to this important historic event, which in a sense also had semi-official overtones in that (as is customary in the work of the Waitangi Tribunal) it included a powhiri (welcome) to the Tribunal to the hearings in the area out of which the grievances and claims arose. 

[13]     What was sought to be achieved was partly cathartic, a venting of anger for what had happened in the past, followed by a “letting go”, and then a recognition of the need to address what had occurred.  The fullest licence was allowed to that process.  Whether public roads could be blocked in the way they were for a time, whether vehicles could be set on fire, and suchlike matters, raise no concerns in this case.  The importance of the process was recognised on this occasion.

[14]     It has therefore never been suggested that this occasion as such was unlawful or somehow inappropriate.  It was welcomed by all in the area, and those who took part in it recognised its historic significance.

What the case is about

[15]     Concern evidently arose when it became apparent that Mr Iti had discharged both blank and live ammunition.  He could have been charged under s 48 of the Arms Act 1983 with discharging a firearm, without reasonable cause, in or near a dwelling house or public place so as to endanger property or to endanger, annoy, or frighten any person. 

[16]     We have to say that given the decision to press charges it is difficult to see why Mr Iti was not charged under this provision.  The conduct which appears to have led to the decision to prosecute was the discharging of the gun with live ammunition.  Mr Thomas was hard pressed to explain why the Crown adopted the course it did.  We will return to this provision later in this judgment.

[17]     For whatever reason, the Crown preferred counts under s 51 of the Arms Act: that “[without] some lawful purpose” Mr Iti carried in a public place or had in his possession in any public place, a firearm.  Under that section, once it is proved that Mr Iti had a firearm in his possession in a public place, “the burden of proving the existence of some lawful purpose”, lay upon him (s 51(2)).  The indictment identified the public places to which the respective charges related as “Reids Road” and “Tauaarau marae” respectively.

[18]     To take the “public place” issue first, Mr Iti has always accepted that Reids Road was a public place at the relevant time.  At trial, he contended that Tauaarau marae was not a public place.  That was how the Judge appears to have apprehended that part of the defence.  Before us, it was said that the argument, by reason of translation and other difficulties, was not accurately comprehended.  The argument is now put on a narrower basis, namely that the marae ātea was not a public place at the relevant times. 

[19]     As to the discharging of live rounds, it is asserted that Mr Iti was in possession of the shotgun, in the words of his counsel, “for the express purpose of welcoming the Waitangi Tribunal on to Tauaarau marae in accordance with the Tikanga and laws of Ngai Tuhoe”.  This was said to include the discharging of live rounds.

The decision in the District Court

[20]     The Judge handed down a careful judgment which was seventy-three paragraphs in length.  He was faced with the burden of a large body of evidence which was at times quite diffuse.

[21]     There was no contest over Reids Road; it was accepted that it was a public place.  As to the marae, the Judge held “given the breadth of the invitation issued by Ms Williams [the organiser of the powhiri for the Waitangi Tribunal], I have no doubt in concluding that on 16 January 2005, the Tauaarau marae was a public place” (at [65]). 

[22]     Possession of firearms and the discharge of shotgun shells, including live rounds, was incontrovertible in light of the evidence, and indeed was not contested.  The Crown had therefore established the relevant charge, save for the question of lawful purpose to be proved by Mr Iti.

[23]     The Judge then said:

[68]     So the burden then shifts to the accused to prove on the balance of probabilities that at the relevant times he was in possession of the firearm for a lawful purpose.  “Lawful” meaning not criminal, not punishable by law, and “purpose” having its ordinary meaning of the object or end in view.  The accused called witnesses who gave ample evidence to show that what he did was within Tuhoe Tikanga, and in particular that the two wero during which the firearm was discharged were part of an historically unique event, being the first occasion since the Treaty of Waitangi that the Crown has come in peace to the Ruatoki Valley to hear Tuhoe grievances; being the first opportunity for Tuhoe to express and release their anger at the injustices they have suffered; and Tribunal members and representatives of the Crown having been briefed, albeit inadequately as I find, on what was to occur.

[69]     Use of firearms in Tuhoe ritual and Tikanga has been proved.  Defence witnesses mostly did not regard possession of a firearm’s licence as a necessary prerequisite to using and discharging firearms within the Tikanga of Tuhoe, so long as the participants were trained and sanctioned by the iwi.  That view needs to change.  Tuhoe is not exempted from the Arms Act.  Tuhoe defence witnesses were divided on whether or not live rounds should be used.  However, the majority view was that they should not.  I therefore conclude that the use of live ammunition is not an essential part of Tuhoe Tikanga.

[70]     This is where the accused’s defence fails.  Knowing he was unlicensed, he was pushing his luck in taking the pre-eminent, highly dramatic, and uniquely centre stage role that he did.  He courted media attention and he assuredly got it.  He did not have to use a shotgun.  The overwhelming majority of those performing the wero at Reids Road and at Tauaarau Marae used taiaha.  Knowing he was unlicensed, another possible way of ensuring his purpose in possession did not become unlawful may have been to use a firearm with the bolt removed, as at least one other did.

[71]     Finally, knowing he was unlicensed, he could have stopped short of using live rounds.

[72]     I am satisfied that his use of live rounds made the purpose of his possession of the firearm unlawful.  It was not demanded by Tikanga.  It was designed to intimidate unnecessarily and to shock.  It was a stunt.  It was unlawful.

[73]     This was no minor, chance or inconsequential straying in the course of possession of a firearm for a lawful purpose.  This was planned.  It was set piece.  It went plainly beyond a lawful purpose.  Accordingly I find both charges proved.

Was the ātea a public place?

[24]     The term “public place” is defined in s 2 of the Summary Offences Act 1981, in these terms:

public place means a place that, at any material time, is open to or is being used by the public, whether free or on payment of a charge, and whether any owner or occupier of the place is lawfully entitled to exclude or eject any person from that place; and includes any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle carrying or available to carry passengers for reward.

[25]     Ms Sykes’ complaint is that for whatever reason the Judge misunderstood the importance of the distinction between the marae at large and the ātea.  It was suggested that translation difficulties had something to do with this.

[26]     In everyday usage, the word “marae” today encompasses the whole complex of land, buildings and facilities at a particular site.  As in this case, it is usually fenced in.  There is a flat area in front of the wharenui.

[27]     The marae is at the heart of Māori culture.  It is a deeply significant site.  The ancestral name is a uniting force for the people concerned, who can trace a genealogical line to the ancestor.  The marae is at one time their ancestor, their house, and their land.  It is a hub of ceremonial and social events that are hosted by the group that “owns” the complex.  When visitors come, no matter how many guests there are, the local people must offer them manaakitanga and hospitality. 

[28]     Marae are governed by Tikanga Māori.  In the broadest sense Tikanga refers to the correct (Māori) way of doing things.  Ryan The Reed Dictionary of Modern Māori (2ed 1997) defines Tikanga as meaning, “custom, obligations and conditions” (at 297).  Tikanga itself has many subsets, such as Tikanga ture (legal system), and Tikanga whakaaro (cultural concepts). 

[29]     The ātea is an area which, as Ms Sykes put it, is to be “kept clear at all times”.  The concept of an ātea is itself quite complex, but a principal witness for the defence, Mr Nikora, was able to describe the traditional structures that were employed by Ngati Rongo.  He emphasised the necessity of keeping this area clear to allow the purposes and intents of visitors who were approaching to be determined from the paepae (or sacred seat). 

[30]     As it transpires, because Mr Iti carried out the actions he did on the ātea at this marae he was internally disciplined by the hapū of that marae.  This was because he had gone on to sacred ground to do what he had done, thereby drawing, as it were, other persons behind or near him on to the ātea.  Mr Iti had thereby not followed the internal protocols of the marae.

[31]     Ms Sykes argued that in relation to this count the ātea should be seen as a “separate” private area, and that Mr Iti’s actions were not therefore carried out in a public place. 

[32]     The first difficulty with the argument is an evidential one.  Mr Nikora is the Chairman of the Marae Committee.  His evidence does not establish any basis for holding that the ātea should be considered as something “separate”.  And then there is a problem of delineation.  Ms Williams suggested that it was possible to argue that the ātea extended from the confiscation line itself to the marae, and that the ātea is not just confined to the area in front of a meeting house on a marae.  She said it could be described as any place designated for encounter or engagement.  Mr Kruger (who was described as “one of the esteemed academics of Tuhoe”) said that conceptually the ātea could extend as far as the entire area of Tuhoe.

[33]     A second difficulty is that, in law, the concept of a private space within a public space is problematic.  There was some discussion before us about such places as churches, where the public might be entitled to enter but be restricted (for instance) from entry to a high altar, or perhaps a particular chapel.  Universities and other institutions also sometimes invite visitors, but have “closed” areas, such as grass areas and quadrangles.

[34]     Mr Thomas drew our attention to Anderson v Miller (1976) 64 Cr App R 178 (CA). In that case a Divisional Court of the English Court of Appeal presided over by the Lord Chief Justice was dealing with a case under s 19 of the Firearms Act 1968. This created an offence where, without lawful authority or reasonable excuse (the proof whereof lay on him), a person had with him in a public place a loaded firearm. “Public place” was defined as including any highway and other premises or place to which at the material time the public had, or were permitted to have, access whether on payment or otherwise.

[35]     The defendants were registered firearm dealers under the Firearms Act 1968.  They carried on business in partnership at a shop.  The shop was divided by a service counter.  The area before the counter was one to which the public had access.  The area behind the counter was one to which only persons serving in the shop were admitted.  The defendants kept a loaded revolver hanging from a nail underneath the countertop in case they should have to use it to defend their persons and property in the shop.  The gun was found there by police officers. 

[36]     The owners were convicted by the Justices of contravening s 19 of this Act.  The Crown Court allowed an appeal on the ground that the area behind the counter was not a public place. 

[37]     The Court of Appeal held that where the public had access to one part of the premises but not the other the correct approach to the question whether the restricted part of the shop was a public place was to ask whether the whole of the shop formed a single unit.  Here it was a single unit notwithstanding the presence of the counter.  Slynn J said (at 181):

One takes that room as a whole.  To that room the public had access.  It is accordingly a public place for the purposes of the section.  It does not in my judgment cease to be a public place because within it there are sections to which the public does not have access or is not permitted to go.  It seems to me that it is drawing too fine a distinction to take the particular corner or part of the room, where the person charged happens to be for the moment, and to say that because in that particular part of the room the public does not go therefore it is not a public place and there is accordingly no offence.

[38]     In our view, the same applies in the instant case.  Not only was there some dispute as to precisely where the ātea could be considered to be situated in this particular case, but this event occurred in a single unit – the marae – with literally hundreds of members of Tuhoe and the public present.  There is nothing in this ground of appeal.

[39]     That said, we are not questioning that within Māoridom an ātea may be sacred and ought not to be accessed by visitors or members of the home marae.  It is just that in this case the public place (the marae) in law covers the whole area, even those parts which ought not have been accessed.

The discharge of the live rounds

[40]     The defence was put forward that the discharge of these live rounds was lawful, according to Tikanga Tuhoe.  That argument runs into difficulty on both the evidence and the law.

[41]     As a matter of evidence, the Judge concluded “that the use of live ammunition is not an essential part of [Tikanga] Tuhoe” (at [69]).  And, “this is where the accused’s defence fails” (at [70]).

[42]     That holding was strongly criticised by Ms Sykes.  She said it was not correct to state (as the Judge had done) that the majority of Tuhoe witnesses advocated against the use of live ammunition.  Mr Thomas accepted that criticism.

[43]     Five witnesses were questioned about the use of live ammunition.  Only two of them considered the use of live ammunition unacceptable.  The first was Ms Williams, who had been tasked with organising and co-ordinating the festivities on behalf of Tuhoe.  The second was Mr Stevens, who on his own acknowledgement wished to support Mr Iti, was Tuhoe, and was also knowledgeable in Tikanga Tuhoe.  He had had a long military career, and was called by the defence.

[44]     There was evidence that what was central to the use of a firearm was the sound that it made.  This had “succeeded” older practices, such as beating on hollowed logs.  Traditionally the discharge of a firearm in a ceremonial context was to summon, welcome or farewell.  Ms Williams said it was the “illusion” of an attack which was intended by the organisers in relation to the activity on Reids Road.

[45]     It would have been preferable if the Judge had made an express holding on the balance of probabilities (which is what the section distinctly requires) rather than expressing, as he did, the results of a head count, which may well have been in error.  That said, the Judge was plainly aware that the holding he had to reach had to be made on the balance of probabilities.  He expressly said so at [18] of his judgment.  Although, therefore, the holding is imperfectly expressed, the Judge seems to have had the requisite standard in mind, and he was not satisfied that Tikanga Tuhoe required the discharge of live rounds.

[46]     Even if that were not so, there is, in law, a fatal objection to the defence of Tikanga Tuhoe in this case.  What was being asserted was Māori (aboriginal) custom.  There has to be some ability to limit rights based on aboriginal custom, as occurs in other rights-based areas of the law, where necessary, otherwise some features of Māori custom which would today be considered untenable might be enabled to continue unabated.  But how does this extinguishment or limitation occur?

[47]     At common law, to be recognised as a lawful custom, that which is relied on has to have four essential attributes.  It must be immemorial; it must have continued without interruption since its immemorial origin; it must be certain in respect of its nature generally; and it must be reasonable, which is a question of law for the Court.  If the common law governed here, it would be very difficult to say that Mr Iti’s actions in discharging a live shotgun were “reasonable”, particularly when regard is had to the fact that the Arms Act itself restricts possession of a firearm for stage, film or television purposes to the discharging of blanks (s 31).

[48]     However, in this instance what is being asserted is a Māori, or aboriginal customary right.  Extinguishment of such a right (if established) can only take place through the “lawful exercise of the sovereign power”, as Elias CJ put it in Attorney-General v Ngati Apa [2003] 3 NZLR 643 at [34] (CA). Tipping J considered that such a Parliamentary intention to extinguish would have to be evidenced by express words, or at least by necessary implication (at [185]).

[49]     The critical point here then becomes that there is a sovereign enactment – the Arms Act itself – which has limited the customary right.  Discussing an asserted customary right to possess cannabis for supply in R v Knowles CA146/98 12 October 1998 per Keith J, this Court stated:

By its absolute prohibitory terms, in particular in the provision under which Mrs Knowles was convicted [a provision in the Misuse of Drugs Act 1975], it leaves no room at all for the operation of any relevant customary law.

[50]     In the current instance, the Arms Act is not absolute.  Section 48 provides that any discharge of a firearm must be “without reasonable cause”.  How “reasonable” is to be interpreted in this context of aboriginal rights was not fully argued before us.  In our view, however, any right to discharge live ammunition (if established) is not reasonable.  Parliament has appropriately seen it as being necessary to regulate the use of firearms to further the legitimate and compelling aim of public protection.  Prohibiting the discharge of live ammunition in this customary context does not impose undue hardship or significantly curtail the exercise of Tikanga Tuhoe.  The discharge of live ammunition for the purposes of Tikanga Tuhoe is not, therefore, a “reasonable cause”.

[51]     It follows that it is likely on an evidential basis, but in any event, is certain in law, that the defence of adherence to Tikanga Tuhoe must fail.

But did Mr Iti do something punishable by law?

[52]     The question nevertheless remains: was Mr Iti pursuing an unlawful purpose in his possession of this shotgun on the occasions in question?  There can be no dispute that one of the purposes for which he was carrying the firearm at the two locations in question was to discharge the firearm.  We know that because he carried out that purpose and there is nothing to suggest that the discharges were unintentional.  But, on the evidence presented in the District Court, was that a purpose to commit a criminal act?

[53]     This is where the circularity of the Crown approach becomes particularly vexing.  In the end, Mr Thomas was driven to arguing that Mr Iti had contravened s 48(b) of the Arms Act 1983, although he had not been charged under that (lesser) offence.  It was argued that was his unlawful purpose. Aside from the troubling notion that a lesser offence is used to “prop up” the greater offence of possession (in terms of potential sentence or fines), the terms of s 48 would have to be met. 

[54]     The question therefore was: Mr Iti had discharged a firearm, in a public place, but had he done so without reasonable cause and with the consequence that property was endangered or that any person was endangered, annoyed, or frightened?

[55]     It seems to us that Mr Iti could not have succeeded in a “reasonable cause” defence for the very reason we have already given: the Arms Act itself does not allow Tuhoe to step outside the provisions of the Arms Act.

[56]     As to whether property or persons were endangered or any person was annoyed or frightened, there is much more difficulty.  Because the Judge was not called upon to, and did not find it necessary to look to s 48, the only holding we have on this issue is at [72] where the Judge found that Mr Iti’s conduct “was designed to intimidate unnecessarily and to shock”.  That however is not quite the issue, for this element of s 48 goes to consequence; not to Mr Iti’s intention.

[57]     We take first the issue of “endangerment” of property or persons.  Because this issue was not squarely faced at the hearing there is little evidence available to us.  We know that there was a mixture of commercial ammunition and some crudely constructed home “blanks” utilised.  We do not know whether the live rounds contained small-sized pellets, or much larger size shot, such as buckshot.  Mr Innes, who had researched the use of firearms in Māori ceremony (both before and after the signing of the Treaty of Waitangi) and who had some experience with firearms, gave evidence that the firing of blanks creates a gas blast.  Blank cartridges can have a fast-burning powder which makes for a wave of gas out of the barrel “that is actually quite dangerous”.  The direction of the shotgun discharges at Reids Road seem to have been accepted as having been out into an adjoining field, and there is no evidence of endangerment of persons there.  The discharges on the marae ātea, as we could see for ourselves from the film, were into a New Zealand flag, apparently purchased from The Warehouse (but “made in Taiwan” as Mr Iti said) which lay on the ground.  The flag could be seen to riffle, but whether that was from a gas blast from the shotgun, or from pellets, or some combination of the two we are in no position to judge.  Without the assistance of expert evidence we have no way of knowing whether whatever shot was fired simply went into the earth, or whether there was any danger of a ricochet.

[58]     Were persons annoyed or frightened?  Again, because this issue was not squarely addressed in evidence, we have no distinct findings.  It seems that the Waitangi Tribunal and its officials had what the Judge termed a “scant” briefing as to what was going to occur, but the precise extent of that knowledge was not canvassed in evidence.  At [33] of his judgment, the Judge noted that the actions from Mr Iti gave offence and that the Kaumātua of Ngati Rongo “[have] moved to ensure that it does not happen again”.  But that was because the affront to the ātea by Mr Iti was considered to be inappropriate.

[59]     The Judge said, “the body language and facial expressions of the manuhiri (visitors) shown briefly on the television clips, both at Reids Road and at the marae, appear consistent with the concern over guns fired in anger, acted upon by the Kaumatua” (at [33]).  A defence witness, Mr Stevens, acknowledged noticing nervousness on the part of the manuhiri about guns being fired.  According to him, “[i]t was done with such energy and passion that, that, then I, then I did notice, then I did notice nervousness and that was just because they had just never seen it before but after that it was all right.  They were all right”.  But that was as far as the evidence went.

[60]     In the end, the evidence on this point is really quite unsatisfactory.  This is because the Crown and counsel and the various witnesses were not directing their attention specifically to what was required to be established. 

[61]     Section 48 requires the establishment of a consequence – the requisite harm –and it must be established to the criminal standard of proof.  We would have to be sure that Mr Iti in fact caused the requisite harm under s 48.  We cannot be so satisfied, on the evidence, and the prosecution must therefore fail insofar as it relies on an unlawful purpose under s 48. 

[62]     The prosecution under s 51 must therefore fail, and the convictions will be set aside.

[63]     For completeness, we record that Mr Thomas initially raised an issue that there may have been an unlawful purpose, going to an offence under s 11(6) of the Flags, Emblems and Names Protection Act 1981 (damaging the New Zealand flag “with the intention of dishonouring it”).  He did not pursue the point further, given the decision of Ellen France J in R v Hopkinson [2004] 3 NZLR 704 (HC).

[64]     We note that the trial Judge was faced with an unenviable task in this case.  The evidence presented was diffuse, and the arguments were not closely refined.  We had the benefit of much closer argument before us.

Some concluding remarks

[65]     That the discharge of these rounds was a foolhardy enterprise should not need emphasising.  Some of the blank rounds were created by opening a shotgun cartridge and tipping out the powder and pellets and then repacking the powder (because commercial blanks are “too expensive”).  We had no evidence to assist us from an armourer, but we very much doubt whether this practice has anything at all to commend it.  Then there was the discharge of live rounds, which is intuitively problematic anywhere near people.  But, again, courts act on appropriate evidence, which we do not have in this instance. 

[66]     It is to be hoped that Tuhoe will itself recognise that any asserted custom as to the ability to discharge live rounds will not in future be countenanced, even in the unique setting of something like this particular event.  Certainly this judgment should give no such encouragement.  What has happened is that Mr Iti has received the same consideration as any New Zealand citizen: an offence has to be established to apply in the circumstances of the particular case, to the criminal law standard.  The prosecution has failed for want of requisite proof, not because Mr Iti was entitled by Tikanga Tuhoe to discharge live rounds.

Solicitors:
Rangitauira & Co, for Appellant
Crown Law Office, Wellington