R v Mason
[2012] NZHC 1361
•3 May 2012
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IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2011-070-1249 [2012] NZHC 1361
THE QUEEN
v
TAMATI MASON
Hearing: 3 May 2012
Counsel: A Sykes and T Tuari for Accused
N G Belton for Crown
Judgment: 3 May 2012
Reasons: 15 June 2012
REASONS FOR JUDGMENT OF HEATH J
Solicitors:
Crown Solicitor, PO Box 13063, Tauranga
Aurere Law, PO Box 1693, Rotorua
Copy to:P G Mabey QC, PO Box 13199, Tauranga
R V MASON HC TAU CRI 2011-070-1249 [3 May 2012]
Contents
Introduction [1] The jurisdictional argument [4] The Crown’s position [11] Did a customary system exist? [13] Has the customary system been extinguished?
(a) The “trial” process [29]
(b) The sentencing process [38] (c) Practical problems [46] Conclusion [54]
Introduction
[1] Mr Mason was committed for trial in this Court on one count of murder and one of attempted murder. For present purposes, the circumstances in which the offending occurred are not relevant.
[2] Late last year, Mr Mason applied for a ruling that he should be dealt with in accordance with tikanga Maori. Mr Mason has affiliations to both Ngati Ranginui and Ngati Tamarawaho.
[3] I heard the application on 3 May 2012. I ruled against Mr Mason and said my reasons would be given later. After I gave my decision, Mr Mason entered pleas of guilty to each of the two charges. He has been remanded for sentence on 27 July
2012.1 These are my reasons for holding that this Court had jurisdiction to try Mr
Mason on the charges before it.
The jurisdictional argument
[4] Ms Sykes, in careful and well reasoned submissions, for Mr Mason, outlined the foundation for the jurisdictional argument. Her submissions were based on expert evidence from Mr Moana Jackson, of Victoria University of Wellington. Mr
Jackson provided an affidavit in support of the application, gave supplementary oral evidence at the hearing and was available to answer questions from counsel for the Crown and myself.
[5] Mr Jackson gave evidence as an expert in tikanga Maori and associated cultures. I accept his credentials to do so. Much of Mr Jackson’s evidence has gone unchallenged. No evidence was called by the Crown. Counsel for the Crown did not seek to cross-examine him. Given the nature of the issue, I questioned him at some length. I thank Mr Jackson for his scholarly contribution to the issues I am required to determine.
[6] Ms Sykes framed the issue as whether “some form of parallel or alternative criminal jurisdiction based on Maori custom is available to Maori and, in this particular case, to Mr Mason so that the serious allegations made against him can be tried in that forum”.
[7] Ms Sykes submitted that relevant customary law could only be extinguished “with the consent of Maori and by express, clear and plain language used in a statute enacted by Parliament”. She contended that Maori customary law (tikanga Maori) existed and continues to operate as a source of law in its own right, and that it has not been extinguished (with the necessary consent of Maori) by unequivocal statutory language.
[8] By accepting Parliament’s ability to pass legislation that could, within those confines, remove the availability of a tikanga approach, Ms Sykes has articulated a more nuanced approach to the jurisdictional issue than has been raised in earlier cases. To date, the orthodox approach has been to reject any objection to the jurisdiction of trial Courts, on (what have been termed) “Maori sovereignty” grounds, as “plainly unsound legally”.2
[9] If her argument were accepted, Ms Sykes submitted that Mr Mason could elect to be dealt with in accordance with the “values, standards, principles or norms to which the Maori community generally subscribed for the determination of
particular conduct in this case for the final disposition of a case involving an allegation of an individual taking the life of another”.
[10] There are two distinct propositions that must be established for Ms Sykes’
argument to succeed:
(a) First, that around the time He Whakaputanga o Nga Rangatira o Nga Hapu o Niu Tireni (the Declaration of Independence of 1835) and Te Tiriti o Waitangi (the Treaty of Waitangi of 1840), there was a developed Maori legal system (the customary system) that could investigate and impose sanctions for serious criminal conduct.
(b)Second, the customary system continues in force today and represents a parallel system of criminal justice by which Maori charged with serious criminal offences may elect to be tried.
The Crown’s position
[11] Mr Belton, for the Crown, adopted a simple approach. He contended that the argument was political in nature, rather than legal, and that there was only one criminal justice system (the statutory system) that could try offenders for alleged crimes.
[12] Mr Belton also submitted that if I were to find in favour of Mr Mason, I would be ignoring the principle of the Sovereignty of Parliament and acting contrary to well-established precedent.
Did a customary system exist?
[13] Contrary to some of the contemporary jurisprudence,3 it is clear that around the time of both the Declaration of Independence and the Treaty of Waitangi, there was a general acceptance that existing customary practices had “the character and
authority of law”. That phrase is taken from a dispatch from Lord Russell, on behalf of the British Government, to Governor Hobson on 9 December 1840. Instructing the Governor to recognise customs developed by Maori, Lord Russell added: “it will of course be the duty of the protectors to make themselves conversant with these native customs”.4
[14] When the Supreme Court (now the High Court) of New Zealand was first established, on 22 December 1841, each Judge was required to take an oath that he would “discharge the duties of Judge of the Supreme Court without fear or favour or malice”.5 By 1873, the oath had been changed to recognise the need to take account
of “the laws and usages of New Zealand”.6 The form of the 1873 judicial oath is the
same as that taken currently by all appointees to the High Court bench.7 Adoption of the term “usages” in a statute passed in 1873 was more likely to refer to those of Maori than those of the much more recently arrived European settlers. That view is supported by the way in which the same term is used in s 71 of the New Zealand Constitution Act 1852 (Imp):8
LXXI. ‘And whereas it may be expedient that the Laws, Customs, and Usages of the aboriginal or native Inhabitants of New Zealand, so far as they are not repugnant to the general Principles of Humanity, should for the present be maintained for the Government of themselves, in all their Relations to and Dealings with each other, and that particular Districts should be set apart within which such Laws, Customs, or Usages should be so observed:’
It shall be lawful for Her Majesty . . . from Time to Time to make Provision for the Purposes aforesaid, any Repugnancy of any such native Laws, Customs, or Usages to the Law of England, or to any Law, Statute, or Usage in force in New Zealand, or in any Part thereof, in anywise notwithstanding.
[15] Subject to the “repugnancy” qualification, it is clear that the Imperial
Parliament recognised that there were pre-existing “Laws, Customs, and Usages” of
Maori that should be given effect. The existence of s 71, until repealed by the
4 Dispatch from Lord John Russell to Governor Hobson, 9 December 1840, (1841) 311 New Zealand Parliamentary Papers 24 cited in Frame “Colonising Attitudes Towards Mäori Custom” [1981] NZLJ 105 at 105-106.
5 Supreme Court Ordinance 1841, s 9.
6 Promissory Oaths Act 1873, s 4.
7 Oaths and Declarations Act 1957, s 18.
8 No districts were set apart under s 71.
Constitution Act 1986, demonstrates that those responsible for governing the colony in its early days accepted the existence of legal norms that were followed by Maori.
[16] The contrary view, expressed by the Chief Justice in Wi Parata v Bishop of Wellington9 can no longer be sustained.10 Prendergast CJ (with whom Richmond J agreed) had said:
[14] ... [section 71 of the ] Act speaks further on of the “Ancient Custom and Usage of the Maori people”, as if some such body of customary law did in reality exist. But a phrase in a statute cannot call what is non-existent into being. As we have shown, the proceedings of the British Government and the legislation of the colony have at all times been practically based on the contrary supposition, that no such body of law existed; and herein have been in entire accordance with good sense and indubitable facts. Ideas and practices respecting property in land, and the power of alienation to Europeans, which have been growing up since the settlement of the country, cannot affect the question.
[17] In addition to its inconsistency with the true historical position, the Wi Parata reasoning is circular in nature. As the Law Commission said in Maori Custom and Values in New Zealand Law:11
103.The Chief Justice thus advanced the circular proposition that Maori custom does not exist because it is not recognised by statute whilst any statutory recognition can be disregarded because Maori custom does not exist.
[18] Cases such as Attorney-General v Ngati Apa12 have acknowledged the existence of Maori customary title to land, as an aboriginal right. In Takamore v Clarke,13 customs associated with burial of a deceased were recognised. This case deals with yet another aspect of custom; that designed to deal with those who offended against the societal norms of a particular iwi or hapu.
[19] Mr Jackson deposes that, in pre-European times, tikanga was seen as a means of managing changing circumstances, where differences could be mediated through
9 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 (SC); 1 NZLRLC 14 at para [14].
10 For example, see Nireaha Tamaki v Baker [1901] AC 561 (PC) at 577, Ngati Apa v Attorney- General [2003] 3 NZLR 643 (CA) at [13] (Elias CJ), [154]–[158] (Keith and Anderson JJ) and
[204]–[215] (Tipping J) and Takamore v Clarke [2011] NZCA 587; [2012] 1 NZLR 573 at paras
[116]–[120] (Glazebrook and Wild JJ).
11 New Zealand Law Commission, Mäori Custom and Values in New Zealand Law (NZLC SP 9,
2001) at para 103.
12 Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA).
13 Takamore v Clarke [2011] NZCA 587; [2012] 1 NZLR 573 (CA).
an understanding of cause and imbalance. He asserts that the oral history, passed on through whakapapa (genealogical connections), that represents the cornerstone of Maori jurisprudence emerged in much the same way as the English common law developed. Mr Jackson continued:
19.Our law is a way of maintaining relationships, where processes and entitlements are based upon kinds of obligations associated with the receipt of any gift. We sometimes define these entitlements as
‘rights’, however these do not stem from the grant of a political body
but from the rites of our birth and the whakapapa that makes us unique. They began at the moment of birth, as the first act in every child’s life was the burying of his or her whenua (afterbirth), which was both a rite of passage and signified the entitlements they might enjoy as they grew up. In Maori society all individuals were entitled to a certain legal place, and burying of the whenua was a means of proclaiming their right to stand on their land, and proclaiming the reciprocal relationships they would have within their Whanau, Hapu and Iwi.
20.Maori have never been a law-less people, and while the stress in the law stories of each iwi differed slightly, there is a consistency of values that are applied across the land. Whether the land was about our waterways and our entitlement to utilise its resources, or whether it talked of our responsibility to care for the earth, it was about give and take, striking a balance that is essential in any good relationship.
21.An awareness of the law and what was tika (right) or not tika helped us define our own entitlements, and remedy any personal or communal hurt. It also provided the means and process to settle conflict between individuals as well as polities.
[20] Similarly, the concepts of authority and its site of power were uncontroversial ideas that had been embraced as much by Maori as they had in the United Kingdom. Mr Jackson referred to mana as a concept of power that had been developed to reflect collective aspirations shared among members of iwi and hapu. He opined that this form of “power” is reflected in the use of the words “tino rangatiratanga” in the Maori version of the Treaty. Authority was reposed in ariki or rangatira within a particular iwi or hapu. The concept of mana whenua required the exercise of power on the land to which the particular iwi or hapu had its genealogical links. If held on a marae, the kawa of the marae provided the protocol for the hui at which an
allegation of misconduct was considered.14
14 See also the extract from Mr Jackson’s evidence set out at para [21] below.
[21] In this way, values of mana, mana whenua, whakapapa and whanaungatanga were linked. Those responsible for exercising power drew their authority from those sources. Mr Jackson added:
23.Like law, the concept and site of power within a particular society are also cultural creations. Indeed the universal desire to be free and independent has led to numerous culturally distinctive ideas about constitutionalism and government but they are really simple ideals. Government is the process that people choose to regulate their affairs (the practical nexus between a concept and site of power) and a constitution may be understood as the code upon which government will proceed. An analogy may be drawn by likening a constitution to the kawa of the marae which outlines the way the marae will be governed and the codes upon which it and the conduct of the people (both hosts and manuhiri) will be determined.
[22] Mr Jackson referred me to learned writings that have discussed these customary processes, in the context of those who were said to have offended against relevant societal norms. Many of the sanctions imposed were based on utu. As Mr Jackson pointed out, utu is a concept that is frequently misunderstood. Contrary to popular belief, it is not a value premised solely on the notion of revenge. Rather, in the sense of reciprocity, utu recognises the need for a sanction that responds
appropriately to the wrong committed.15 Dame Joan Metge once described the
essence of utu as the maintenance of relationships by way of an appropriate imbalance of contribution:16
To return an exact equivalent was to stop the exchange dead: therefore the return was usually larger than the gift received or different in kind.
[23] Dr Robert Joseph has written about Maori customary laws and institutions, with specific reference to crimes against the person. He has emphasised the restorative nature of the pre-European Maori legal system:17
The process, it seems, took the form of the people coming together for a hearing on the marae or inside a meetinghouse. These hearings investigated the matter at hand and attempted to restore the balance that had been disturbed. An integral component of the hearing usually meant redressing
15 New Zealand Law Commission, Mäori Custom and Values in New Zealand Law (NZLC SP 9,
2001) at paras 150–155.
16 Ibid, at para 157, citing from a paper prepared by Dame Joan.
17 R Joseph “Mäori Customary Laws and Institutions: Crimes Against the Person, Marriage, Interment, Theft” (Te Matahauariki Research Institute, August 1999) at p 4-5. Although described as a draft, the paper is publicly available on the Te Matahauariki Research Institute’s website, at harm done to the victim. The level of redress depended on the degree of the offence and, it seems, the personal status of the persons involved. A form of compensation (utu) for some offences existed with mediation to remove tension. Other offences (hara) for breaches of tapu were perceived as so serious that death was demanded. The interests of the victim and their Whanau or hapu were central to the administration of justice. The victim’s right to redress could also be passed down from one generation to another and could be pursued against the offender and their kin or hapu. Hence the importance attached to dispute proceedings, which might last for days while a resolution was being negotiated. The justice system did not exist in isolation from the rest of society but was completely integrated within it, rooted in the everyday experiences of the people. (footnotes omitted)
[24] Dr Joseph provided illustrations of the use of custom. In the context of the crime of murder, he wrote:18
..., if a chief brought guests to his house, provided food and invited them to sleep in peace, but subsequently killed them, this act would be deemed murder and a hara (sin) to be atoned for. Such a treacherous murder of members of another tribe was dealt with sternly, without fear of consequences or consideration of persons. This type of wholesale murder was termed kohuru. In 1831 Polack observed on such murder and stated:
A feud some years back, had existed between the immediate ancestors of two tribes in Hokianga. Peace had apparently been arranged between both parties. One of them who lived on the banks of the Waiema River, went to pay a friendly visit to his late enemy. On meeting, the usual pressing of noses took place, and while performing the act of salutation, the visitor was struck on the head by the tomahawk of his treacherous antagonist, and killed on the spot.
A kohuru occurred when Ngati Haua at Maungakawa massacred two hundred Ngati Paoa men, women and children living under the protection and with the friendship of the great chief Te Waharoa. Another kohuru caused the long war between Nga Puhi and Ngati Whakaue. A party of thirty Nga Puhi visiting the people of Mokoia were hospitably received, and after a feast, joined in the signing with the tangata whenua (hosts). Once the song was in its second verse, the Nga Puhi were butchered. This kohuru was severely punished with Hongi Hika’s taua seeking utu using muskets and slaying many Ngati Whakaue people in 1823. Ironically, a kohuru was later committed by Hongi Hika when false peace was made during the siege of Totara Pa at Thames.
If a kohuru was the cause of war and the name of the assassin was unknown, the aggrieved people sent a small war party to find a victim. The party (taua) slew the first person they met belonging to the tribe under suspicion, young or old, male or female. Not surprisingly, this exacerbated the increasing conflict. (footnotes omitted)
18 Ibid, at 5–6. The reference to Polak in this extract is to J Polak, New Zealand: Being a
Narrative of Travels and Adventures in that Country Between the Years 1831 and 1837 (London,
1840) at 10.
[25] Dr Joseph’s writings suggest that the crime of murder might have been dealt with either by specific punishment or through declaration of war against another tribe. In the former situation, Mr Jackson acknowledged that the customary processes of the type described by Dr Joseph would be triggered by either a specific admission or denial of the wrong. Both the need for reconciliation and the consequence of the wrong would be discussed at a hui convened for the purpose of addressing the conduct in issue.
[26] A hui held to deal with such an accusation would be held for a particular purpose. Those present were trained to deal with such issues. They would work towards reconciliation and resolution. The process undertaken to achieve those goals was designed to meet the needs of both those who had done the harm and been harmed.
[27] Customary reconciliations of that type also exist in other Polynesian and Melanesian cultures; for example, the Samoan concept of ifoga19 and the reconciliation processes specifically acknowledged as part of the criminal justice regime in Vanuatu.20
[28] On the available evidence, I have no doubt that before the Declaration of Independence in 1835 and the Treaty of Waitangi of 1840, Maori operated (on the basis of tikanga applicable to particular iwi and hapu) a customary system that could deal, for the social purposes of the time, with alleged breaches of societal norms of a type we would now characterise as “serious crime”. The next question is whether
that customary system has survived the statutory system presently in force.
19 A ceremony in which an apology in the Samoan way is offered. For an indepth discussion of ifoga see Tuala-Warren “A Study in Ifoga: Samoa’s Answer to Dispute Healing” (2004) 4 Te Matahauariki Institute Occasional Paper Series.
20 Customary reconciliation processes must be taken into account when an offender is sentenced: see ss 118 and 119 of the Criminal Procedure Code [Cap 136] (Vanuatu), set out at para [51] below.
Has the customary system been extinguished?
(a) The “trial” process
[29] Sections 5 and 9 of the Crimes Act 1961 provide:
5 Application of Act
(1) This Act applies to all offences for which the offender may be proceeded against and tried in New Zealand.
(2) This Act applies to all acts done or omitted in New Zealand.
9 Offences not to be punishable except under New Zealand Acts
No one shall be convicted of any offence at common law, or of any offence against any Act of the Parliament of England or the Parliament of Great Britain or the Parliament of the United Kingdom:
Provided that—
(a) Nothing in this section shall limit or affect the power or authority of the House of Representatives or of any Court to punish for contempt:
(b) Nothing in this section shall limit or affect the jurisdiction or powers of the Court Martial, or of any officer in any of the New Zealand forces.
[30] The term “offence” is defined by s 2 of the Crimes Act 1961 as meaning:
offence means any act or omission for which any one can be punished under this Act or under any other enactment, whether on conviction on indictment or on summary conviction:
[31] The combined effect of ss 5 and 9 is to restrict offences for which an offender may be tried, summarily or on indictment, to those set out in a New Zealand statute. Further, no person can be tried for a criminal offence by a method or procedure other than that laid down in the Crimes Act.21 At face value those principles do not permit any institution or tribunal, other than Courts established by Parliament for the purpose, to try any criminal charge in New Zealand; whether brought against Maori,
Pakeha or a person of another ethnicity.22
21 Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed Brookers) at [CA 5.01], citing Cock v Attorney-General (1909) 28 NZLR 405 (CA), Re Royal Commission on Thomas Case [1982] 1
NZLR 252 (CA) and Re Erebus Royal Commission (No 2) [1981] 1 NZLR 618 in support.
22 Adams on Criminal Law (looseleaf ed) para CA 5.12.
[32] Objections to the jurisdiction of the District and High Courts to try alleged offenders for criminal offences have been roundly rejected in cases leading up to Wallace v R.23 Courts derive their authority to hear and determine criminal cases from the exercise of Parliament’s legislative powers. Once a statute has conferred jurisdiction on a Court to hear and determine a criminal cause, it is impermissible for any other institution or tribunal to attempt to replicate those powers.
[33] As an example of a case in which jurisdiction was challenged on a number of bases, I refer to Barrett v Police.24 Two broad challenges were made. One was that the New Zealand Parliament was unconstitutional and its laws invalid. The other was that Parliament and the Courts created under various constitutional instruments had no authority over Maori. In addressing those arguments, Randerson J considered the doctrine of Parliamentary Sovereignty, arguments based on rights derived from
the Treaty of Waitangi and the Declaration of Independence, arguments based on Te Ture Whenua Maori Act 1993 and others grounded on s 71 of the New Zealand Constitution Act 1852 (Imp) and the Native Districts Regulation Act 1858.
[34] Without rehearsing the full extent of Randerson J’s reasoning in Barrett, His
Honour held that, since the adoption of the Statute of Westminster 1931 (Imp) in
1947, the New Zealand Parliament has had full and exclusive power to legislate in
New Zealand. Today, the power to legislate springs from the Constitution Act
1986.25 After referring to s 5 of the Crimes Act and the definition of “offence”,
Randerson J continued:
[10] The inevitable conclusion must be that the provisions of the Land Transport Act and the Bail Act under which the appellant was prosecuted are valid statutes passed by the New Zealand Parliament. This court’s duty is to apply enactments made by the legislature: Hoani Te Heuheu Tukino v Aotea District Maori Land Board [1941] AC 308 (PC) and New Zealand Maori Council v Attorney-General [1987] 1 NZLR 641, 690.
[35] I return to Ms Sykes’ argument that the customary system could only be extinguished with both the “consent” of Maori and the use of “clear and plain”
23 Wallace v R [2011] NZSC 10. For example, see also, R v Clark CA348/97, 26 February 1988, R v Waetford CA406/99, 2 December 1999, R v Knowles CA146/98, 12 October 1998, R v Fuimaono CA159/96, 24 October 1996, Nga Uri O Te Ngahue v Wellington City Council CA407/03, 18 February 2004 and Phillips v R [2011] NZCA 225.
24 Barrett v Police HC Hamilton CRI 2003-419-64, 14 June 2004 (Randerson J).
25 Ibid, at para [7].
statutory language. As to consent, once it is accepted that a society has authorised a properly constituted Parliament (a proposition not challenged in this case) to legislate, no further consent is required for a statute enacted by the Legislature to extinguish a pre-existing customary right. I accept that “clear and plain” statutory language is required to extinguish such a right but, in agreement with Elias CJ and Tipping J in Ngati Apa, I consider that may be done either “by express words, or at
least by necessary implication”.26
[36] On this point, R v Iti,27 is instructive. While the Court of Appeal accepted that a statute could extinguish a customary right, it drew a distinction between the prohibition of an asserted customary right to possess cannabis for supply (which it held Parliament had extinguished) and a provision in the Arms Act 1983 which prohibited discharge of a firearm “without reasonable cause”.28 The latter is a circumstance that, if present, means that no crime has been committed. As the Court said, interpretation of the term “reasonable” might be informed by customary rights; though the point was not fully argued in that case.29
[37] Iti does not support Ms Sykes’ argument that Mr Mason is entitled to be tried on the charges of murder and attempted murder under the customary system. Parliament, for the reasons given by Randerson J in Barrett, had the power to enact legislation conferring exclusive powers to try charges such as murder and attempted murder in the Courts that it created. Given the combined effect of ss 5 and 9 of the Crimes Act 1961, the customary system has been extinguished.30 It is not possible to regard the customary system as an existing parallel system. That is why I ruled
against Mr Mason’s application.
26 Ngati Apa v Attorney-General [2003] 3 NZLR 643 (CA) at para [34] (Elias CJ) and para [185] (Tipping J).
27 R v Iti [2007] NZCA 119; [2008] 1 NZLR 587..
28 Arms Act 1983, s 48.
29 R v Iti [2007] NZCA 119, at para [50].
30 See also para [31] above and the authorities to which reference is made in fn 23.
(b) The sentencing process
[38] The finding that a parallel customary system is precluded by statute does not exclude the possibility of custom playing a meaningful role in criminal proceedings, provided it can be accommodated within the existing statutory system.
[39] While there is little opportunity to apply custom during the criminal trial process,31 once an offender has pleaded guilty or has been found guilty of a crime, sentencing procedures are much more amenable to the use of customary processes and principles. Indeed, where both offender and victim are Maori and there is no issue as to guilt, such processes may be more appropriate to address the needs of those directly involved in the offending, leaving to one side the distinct interest of the community in the imposition of a sentence that adequately marks the offending. Necessarily the sentencing process is more inquisitorial in nature; it is for the Judge
to impose an appropriate sentence to reflect the seriousness of the offending and the wrongs done to the victims and the community generally.32 Further, at least since passage of the Sentencing Act 2002, the ability to sentence in a manner that reflects cultural background has been recognised.33
[40] In the sentencing process, Maori concepts such as utu (reciprocity) and muru
(redress) can assume some significance. On this topic, Dr Joseph wrote:34
The most prevalent sanction seems to have been utu. The usual methods for securing satisfaction in this way were for the offended party and their kinsmen to taua muru and seek redress (muru) from the offender and their kin. The scope and extent of the event could be arranged in advance. (footnotes omitted)
[41] The existing sentencing jurisdiction recognises the relevance of customary practices. For example, Maori youth can be dealt with through what is known as the
31 The procedure to be followed by the Court in a criminal trial is prescribed by statute, and recognises an adversarial contest where witnesses are challenged through cross-examination by a lawyer representing the opposing party. That procedure is inherently inconsistent with the nature of tikanga Mäori.
32 Sentencing Act 2002, ss 7(1)(a) and 8(a) and (b).
33 Ibid, ss 8(i) and 27.
34 R Joseph, “Mäori Customary Laws and Institutions: Crimes Against the Person, Marriage, Interment, Theft” (Te Matahauariki Research Institute, August 1999) at pp 5. Although described as a draft, the paper is publicly available on the Te Matahauariki Research Institute website; at Court”. The name is something of a misnomer, in the sense that it is not a distinct Court that is separated from the youth justice system that applies to all New Zealanders. All young offenders appear initially in the Youth Court. If the offending were not denied, they are required to undergo a Family Group Conference.35 The same youth justice principles apply to all.36 After finalisation of a comprehensive plan, part of which might involve regular and consistent monitoring on a designated Marae, the offender is returned to the Youth Court. If the offending were too serious, he or she may be transferred to the District Court for sentencing.37
Otherwise the plan might be approved and the “Rangatahi Court”, presided over by a Youth Court Judge, carries out a role to monitor, for example, compliance with programmes that the offender has been required to undertake.
[42] Matiu Dickson has provided a perspective on the workings of the “Rangatahi
Court”:38
After the formalities of a Maori welcome onto the marae, the processes of the Rangatahi Court become deliberately informal to make those present more comfortable and relaxed. The judges of Rangatahi Courts are chosen because they have a recognised expertise and affinity for this area of the law. Similarly for other officers of the court, like the lawyer or lay advocate appointed for the young offender. Judges who are Maori have so far been chosen to preside and they each have varying degrees of knowledge of Maori tikanga and reo. However, they are not necessarily Judges who have a tribal or whakapapa connection to the marae on which the Rangatahi Courts are held. More importantly from a Maori cultural perspective, the marae may not be the whänau marae of the young offender. These are major concerns for me.
The restorative nature of the Rangatahi Court system should sit comfortably with the Maori tikanga system of justice. It is a collective process, involving members of the marae and whänau. A genuine enquiry then could be, why do not all Maori not actively support this new process? The answer could be that the offending originates from Päkehä or mainstream law and in the past Maori efforts to resolve these matters have not been looked at favourably, or have often been held in disdain. Maori possibly will not fully commit to a system does not recognise the validity of the justice system that they had, and have retained into modern New Zealand.
The system retained by Maori would probably work better if Maori society was socially intact but it is not. So the Maori system has to work within those limitations and if it is not successful then the concerns of mainstream
35 Children Young Persons and Their Families Act 1989, s 279. More generally, see Laws of New
Zealand, Children and Young Persons (reissue) at [215–231].
36 Ibid, s 208.
37 Ibid, s 283(o).
38 M Dickson, “The Rangatahi Court” (2011) 19 Waikato Law Review 86, at 89.
law promoters, particularly that Maori receive special treatment, are confirmed.
[43] In addition, subject to the need for consistency in sentencing among all those guilty of serious offending, the availability of a jurisdiction to obtain information as part of a restorative justice approach is important. Writing extra-judicially, I have previously said:39
The availability of Maori focused restorative justice programmes40 demonstrates the digestibility of Maori custom in this area and an initial acceptance that the trade-off to the adversarial system in these circumstances is not too great. Section 10 of the Sentencing Act 2002 provides a direct legislative pathway for muru41 or ifoga42 to be accorded judicial recognition by permitting a Court to take offers of amends into account at sentencing. The Maori Community Development Act 1962 permits Maori committees to impose penalties on Maori for certain conduct falling within the Summary Offences Act 1981. The Children Young Persons and Their Families Act
1989 provides for family group conferences to address youth offending which can be held on marae, with Maori facilitators and kaumatua present.
However, institutional acceptance has its limits. Restorative justice mechanisms that incorporate Maori custom are generally restricted to either youth offenders or relatively minor offences. That is consistent with the notion that the more serious the offending the greater the public interest in subjecting offenders to the generic sentencing process. The more serious the offending, the more difficult it is to make a case for a parallel sentencing process relevant only to one sector of the community.
(footnotes retained; my emphasis)
I emphasise that I am not suggesting that there should be a parallel sentencing system. Rather, I consider that the values to which I have referred are compatible
39 P Heath, “One Law for All” –Problems in Applying Mäori Custom Law in a Unitary State”
(2012) 13 Yearbook of New Zealand Jurisprudence 125 at 135–136.
40 See for example, Te Whanau Awhina referred to in Maxwell & Hayes “Restorative Justice Developments in the Pacific Region: A Comprehensive Survey” (2006) 9(2) Contemporary Justice Review 127 at 131-133 Available at pacific.pdf (last accessed 8 June 2007) and Thomas & Quince “Mäori Disputes and their
Resolution” in Spiller (ed) Dispute Resolution in New Zealand (1999) 205 at 225-226; and Te
Oritenga referred to in Quinn & Bowen “Restorative justice in New Zealand” in (1997) 486
Lawtalk 34 at 35-36.
41 The taking of personal property as compensation for an offence against an individual, community or society. For a general discussion of muru see Ministry of Justice He Hinatore ki
te Ao Mäori - A Glimpse into the Mäori World: Mäori Perspectives on Justice (2001) at 75-79.
For an historical account of muru see Mead Tikanga Mäori: Living by Mäori Values (2003) at
151-164.
42 A ceremony in which an apology in the Samoan way is offered. For a discussion of ifoga see Tuala-Warren “A Study in Ifoga: Samoa’s Answer to Dispute Healing” (2004) 4 Te Matahauariki Institute Occasional Paper Series.
with the way in which sentencing should be undertaken within the existing statutory framework.
[44] A peculiar difficulty arises if the offender were Maori and victims non-Maori. That, in fact, is the case here. But, that concern can be met by the fact that it is not compulsory for a victim (or his or her family) to embark upon a process based on tikanga Maori. They may elect to do so. Thus, when remanding Mr Mason for sentence, I said:43
[4] Counsel for the Crown will liaise with the victim on the attempted murder charge and the wider family of the victim who lost her life as to whether they agree to attend a facilitated hui at which Mr Mason can explain his position and they can respond to him. The purpose of this hui would be to obtain information of the type to which s 10(1)(b) of the Sentencing Act
2006 refers. I make it clear, however, as I did earlier to Mr Mason that in the context of the present offending any feedback from such a meeting would be
relevant only to the minimum term of imprisonment to be imposed on the
murder conviction. The victim and family members are under no compulsion to attend such a meeting.
[5] It is intended that the meeting be facilitated by Mr Pouroto Ngaropo and that he will explore whanau and cultural background and other tikanga Maori issues. The pre-sentence report can bring those matters to account. It will be necessary for the probation officer to liaise with counsel for Mr Mason, Ms Sykes, for the purpose of ensuring a report can cover these issues. A venue will also need to be ascertained. One option is that it be held at the marae at Waikeria Prison. Otherwise the Court would need to be satisfied that sufficiently secure terms of bail were in force to enable Mr Mason to attend such a meeting. The information that is provided in accordance with these directions will all be taken into account on sentencing.
[6] I direct a pre-sentence report to be obtained. In part, that shall provide information about the personal, family, whanau, community and cultural background of Mr Mason. I ask that the probation officer take account also of the outcome of any meeting held for the purposes of s
10(1)(b) of the Act.
[7] In the event that the victim on the attempted murder and the family on the murder count elect not to participate in such a hui, it is open for Mr Mason to attend a hui of a similar type with his iwi or hapu and the outcome of that in relation to his acknowledgement of the harm done to the victims can be reported to the Court for the purpose of sentencing.
[45] There are advantages to all concerned in constructing a sentencing process in this form. For example, it gives the victim (or his or her family) the ability to
confront the offender in a manner that is not necessarily permissible in Court. This
43 R v Mason (Minute) HC Tauranga CRI 2011-070-1249, 3 May 2012.
may have the effect of removing the need for a victim to read out a victim impact statement in Court or, at least, not in more moderate terms than they would wish to express. That may have a more cathartic effect on the victim. It will be possible both for the victim’s views and the offender’s responses to be fed into relevant aspects of the sentencing process.
(c) Practical problems
[46] It may be helpful to policy-makers and others who might be involved in considering the question whether there should be some form of parallel process for me to identify some problems that emerge from both the academic literature and the evidence of Mr Jackson. I identify them by reference to my own starting point: nothing should be done to move away from a core criminal justice system that is applicable to all New Zealanders.
[47] There are a number of practical problems that cannot readily be overcome. I raised with Mr Jackson the question whether he opined that someone in Mr Mason’s position could opt out of the statutory system in favour of a customary one. Mr Jackson accepted that, because of the need to rebuild customary practices of the type in issue, an accused could not opt out of the statutory system and enter a parallel system by choice.
[48] As I understood his evidence, Mr Jackson recognised the need for political will to reinstate the customary system in a workable form. Also, he acknowledged that it would take a good deal of time to restore tikanga to the state in which it was around 1840. He said:
A. ... because rebuilding the practical effectiveness of tikanga as a legal process if you like when so much damage has been done to, it will be as long-term as rebuilding the language because there is a lot of history to overcome and it may well be that as that process matures, that part of the reconciliation in the treaty relationship if you like is a negotiated jurisdictional ambit if you like about when particular issues would be dealt with in a particular way the jurisdictional issues of if one party is Māori and the other is not. ...
...
Q. And what I would like to get some assistance on at this stage is what would be the consequences of accepting the argument? Does Mr Mason then have an opportunity to opt out of the Court system? If so, how does he enter another system?
A. When I was approached if I would come to take part in this hearing, I had three main concerns, if you like. One was for the hurt that has been done the second was the need to find some way of assuaging that hurt. The procedural concern I had, if you like, was the need to at least recognise the validity and the worth of a Māori jurisprudential outlook and that recognition almost, in a sense to me, is not separate from but sort of sits alongside the substantive issues that are having to be dealt with. If we’re looking at this issue in 20 years time, if I was around, I could more confidently say, “Yes, well there are now extant functioning processes in which this could be dealt with.” In an iwi/hāpu context and many iwi and hāpu do have those processes and the people skilled in implementing them but that’s part of the evolutionary rebuilding, I think, but the attempts to rebuild that are constantly being hamstrung when we are told so often that there’s no such thing or it’s been extinguished or it has no validity and I would hope we can begin a move away from this and I commend [Mr Mason] actually, for wanting to have the issue explored in this way because there is, there is another way of doing it.
[49] Another difficulty arises from the potential for conflict between the customary and statutory systems. This may occur because of the differing objectives of each. In New Zealand, for many serious crimes, the most important sentencing goals are accountability,44 denunciation,45 deterrence46 and protection of the community.47 While those goals are balanced against the need to impose the least
restrictive sentence, in order to promote the rehabilitation and reintegration of an offender into the community,48 the sentencing regime, for the most part, is aimed at providing a community response that marks adequately the nature and seriousness of the crime; as opposed to reconciliation among victim (or his or her family) and offender.49
[50] Although customary reconciliation processes may resolve issues as between victim and offender, they will not necessarily achieve the general community’s
interest in ensuring that those guilty of serious criminal offending are sentenced
44 Sentencing Act 2002, s 7(1)(a).
45 Ibid, s 7(1)(e).
46 Ibid, s 7(1)(f).
47 Ibid, s 7(1)(g).
48 Ibid, s 8(g).
49 Ibid, s 8(i) and (j).
appropriately. An illustration of this problem can be found in Public Prosecutor v
Tovor,50 a judgment of the Supreme Court of Vanuatu.
[51] In Vanuatu, ss 118 and 119 of the Criminal Procedure Code [Cap 136] explicitly recognise reconciliation as part of the criminal justice system. They provide:
PROMOTION OF RECONCILIATION
118. Notwithstanding the provisions of this Code or of any other law, the Supreme Court and the Magistrates’ Court may in criminal causes promote reconciliation and encourage and facilitate the settlement in an amicable way, according to custom or otherwise, of any proceedings for an offence of a personal or private nature punishable by imprisonment for less than 7 years or by a fine only, on terms of payment of compensation or other terms approved by such Court, and may thereupon order the proceedings to be stayed or terminated.
ACCOUNT TO BE TAKEN OF COMPENSATION BY CUSTOM
119. Upon the conviction of any person for a criminal offence, the court shall, in assessing the quantum of penalty to be imposed, take account of any compensation or reparation made or due by the offender under custom and if such has not yet been determined, may, if he is satisfied that undue delay is unlikely to be thereby occasioned, postpone sentence for such purpose.
[52] In Tover, the Public Prosecutor elected not to offer on charges involving serious sexual offending, including the rape of a young woman. That decision was reached following a customary reconciliation process, even though s 119 is directed to sentencing considerations. As a result, the complainant no longer wished to give evidence against the accused. Spear J observed:
5. [This] case involved allegations of serious sexual offending which include the rape of a young woman. While the interests of justice must have regard to the interests of the complainant (as the alleged victim) and the accused (as a person charged with serious criminal offences), they must also have regard to the interests of the Vanuatu community which, indeed, the Public Prosecutor represents. It is of fundamental importance that the Vanuatu community has confidence that those who are alleged to have committed serious criminal offences are brought to justice.
6. A reconciliation ceremony is central to custom in Vanuatu as it is similarly important in many other countries. It can be considered a form of or a part of (what is known as) restorative justice. However, it should not be permitted to be a means in itself by which serious criminal offending can be completely diverted from the criminal justice system of Vanuatu. There may
50 Public Prosecutor v Tovor [2011] VUSC 230.
be cases where reconciliation provides the best outcome having regard to the overall ends of justice. In most cases, however, while a private reconciliation ceremony (private, that is, in the sense that it is not public and through the criminal courts) may achieve peace and redress between the families involved, it will not provide the degree of personal and public accountability that the criminal justice system of Vanuatu is designed and required to provide. It will not permit the wider Vanuatu community to have confidence that serious criminal offending in Vanuatu is dealt with fairly, impartially and evenly across all those within the jurisdiction of the Republic.
7. Custom reconciliation is taken full account of by the Courts when dealing with the sentencing of a person who has pleaded guilty or who has been found guilty. It is an important factor in the sentencing process. However, that is quite different to permitting reconciliation to become a complete answer to such serious criminal offending as rape and murder whereby that the prosecution does not take the case to trial. (original emphasis)
[53] Although New Zealand Courts have been willing to treat both a concluded hui at which a full apology was proffered51 and an accepted ifoga52 as mitigating factors at sentencing, they have rejected each as representing a complete societal response to the offending. I agree fully with the Court of Appeal’s observations in R v Talataina:53
…The law of New Zealand must be administered in the interests of our
society as a whole. ...
Conclusion
[54] For those reasons, on 3 May 2012, I ruled that this Court had jurisdiction to try Mr Mason on the charges of murder and attempted murder. I accepted
Mr Mason’s pleas of guilty to each of those charges and remanded him for sentence.
51 R v P HC Auckland CRI 2005-063-1213, 9 August 2006 Priestley J.
52 R v Maposua CA131/04, 3 September 2004; R v Talataina (1991) 7 CRNZ 33 (CA).
53 R v Talataina (1991) 7 CRNZ 33 (CA) at 36.
[55] In the context of the offending for which Mr Mason has entered pleas of guilty, any information gathered as a result of the hui is relevant only to the
minimum term of imprisonment to be imposed on the murder conviction.54
P R Heath J
54 Ibid, at para [4], set out at para [44] above
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