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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Mason

Details

AGLC: R v Mason [2012] NZHC 1361
Case: [2012] NZHC 1361
Decision Date: 3 May 2012

CaseChat Overview and Summary

In the High Court of New Zealand, Mr Tamati Mason was committed for trial on charges of murder and attempted murder. Mr Mason applied for a ruling that he should be dealt with in accordance with tikanga Maori. Heath J considered whether there was a customary system that could investigate and impose sanctions for serious criminal conduct and whether that system continued in force today as a parallel system of criminal justice. Heath J found that around the time of the Declaration of Independence of 1835 and the Treaty of Waitangi of 1840, there was a developed Maori legal system that could investigate and impose sanctions for serious criminal conduct. However, Heath J held that the customary system had been extinguished by the Crimes Act 1961. Heath J also found that although a parallel customary system is precluded by statute, custom can still play a meaningful role in criminal proceedings, provided it can be accommodated within the existing statutory system. Heath J ruled that the Court had jurisdiction to try Mr Mason on the charges of murder and attempted murder.

Orders