Mason v R
| Jurisdiction | New Zealand |
| Judge | Ellen France J |
| Judgment Date | 17 July 2013 |
| Neutral Citation | [2013] NZCA 310 |
| Docket Number | CA558/2012 |
| Court | Court of Appeal |
| Date | 17 July 2013 |
[2013] NZCA 310
Ellen France, Stevens and Miller JJ
CA558/2012
IN THE COURT OF APPEAL OF NEW ZEALAND
Appeal against conviction for murder and attempted murder on basis that offender should have been dealt with in accordance with tikanga Maori — submitted that Maori customary law relating to this type of offending had not been extinguished — whether Crimes Act 1961 extinguished tikanga Maori in respect of offences — whether Crimes Act had to expressly extinguish it — whether consent of the Maori was a necessary prerequisite to extinguishment.
A T Sykes for Appellant
V L Hardy and R W Groot for Respondent
The appeal is dismissed.
(Given by Ellen France J)
Tamati Mason was convicted of one count of murder and one count of attempted murder after he pleaded guilty to both counts. Mr Mason is serving a sentence of life imprisonment with a minimum period of imprisonment of 17 years in relation to this offending.
Mr Mason appeals against his conviction on the basis he should have been dealt with in accordance with tikanga Māori. Underlying the challenge to his conviction is his submission that Māori customary law relating to those who have offended in this way has not been extinguished.
As we shall explain, we have concluded that the Māori system for dealing with wrongdoing relied on by Mr Mason has been extinguished by the Crimes Act 1961 and the provisions of that Act accordingly applied to Mr Mason. It follows that there is no basis for setting aside Mr Mason's guilty pleas and his conviction must stand.
To put the case in context, we first need to say something about the offending and the process leading up to the sentencing of Mr Mason.
We take our description of the incidents giving rise to the charges from the sentencing notes of Heath J. 1 As the Judge notes, Mr Mason met Kate Brown about nine years ago. The two entered into a relationship which lasted for about five years. They were engaged to be married. But, after about three years into the engagement, Ms Brown ended the relationship.
The two had been separated for approximately three years on 20 February 2011 when, in the early hours of the morning, Mr Mason drove to her home with the intention of damaging something belonging to Ms Brown's family. At the time, Ms Brown was living with her parents and her brother. Mr Mason parked some distance from the house and walked up to a vehicle parked on the roadside. Although Mr Mason did not know it at the time, the vehicle was owned by Ms Brown's brother.
Mr Mason smashed the front passenger window of the vehicle punching it with his fist. As a result, he cut his forearm. Mr Mason then walked back towards his vehicle and drove home to attend to his arm which was bleeding heavily.
After attending to his injury, Mr Mason went into the kitchen and armed himself with two large carving knives before he drove back to Ms Brown's address and parked in the driveway.
Mr Mason got into the house by kicking in a locked door. As he walked upstairs Ms Brown's mother, Sandra Brown, walked out of her bedroom. Mr Mason confronted her and stabbed her numerous times in various parts of her body. He also caused defensive wounds to both of her hands and her right forearm.
Ms Brown was awoken by her mother's screams and rushed to her bedroom and found her lying on the floor. Mr Mason was standing over her and bending down. When Mr Mason saw Ms Brown enter the room he moved towards her, still carrying a knife. He stabbed Ms Brown in the chest and punched her in the face causing her to fall on the bed. When she regained her feet, Mr Mason stabbed her in her chest a second time. Again, she fell on to the bed and Mr Mason then stabbed her in the upper back. In total, Ms Brown was stabbed five times.
Attempts to resuscitate Sandra Brown were unsuccessful. She died at the scene. The post mortem examination revealed that she had suffered some 20 separate stab wounds, three of which were to the chest cavity. Ms Brown was treated in hospital, initially in intensive care. She was discharged after some 10 days' hospitalisation.
As the submissions for the Crown record, Mr Mason accepted he had stabbed Sandra and Kate Brown. He told the Court that he had been angry and bitter about the way his relationship with Ms Brown had ended and that he was hurt at the way the Brown family had treated him and his family. He said he carried a sense of shame over the break up three years earlier and his anger boiled over on that night. Heath J concluded that Sandra Brown's “needless death and the serious injuries caused to” Ms Brown were the “utterly unnecessary results of [Mr Mason's] outpouring of anger”. 2
Mr Mason has affiliations to Ngāti Awa and Ngāti Ranginui. 3 The victims are Pākehā.
After committal for trial, Mr Mason sought a ruling that he should be dealt with in accordance with tikanga Māori. Heath J heard that application and then declined it. 4 After Heath J declined the application, Mr Mason entered pleas of guilty to the two charges.
As Heath J explains in his reasons for judgment on jurisdiction, he heard expert evidence from Moana Jackson. Mr Jackson has undertaken research and work in relation to indigenous rights. 5 He has affiliations with Ngāti Kahungunu and Ngāti Porou. Heath J concluded the evidence before him showed that:
[28] … before the Declaration of Independence in 1835 and the Treaty of Waitangi in 1840, Māori 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”.
However, Heath J found that the combined effect of ss 5 and 9 of the Crimes Act was that the customary system had been extinguished. Accordingly, it was not possible to regard the customary system as an existing parallel system.
Heath J did not exclude the possibility of applying custom during the sentencing process. In sentencing Mr Mason, the Judge observed life imprisonment was the only available penalty but that cultural considerations impacted on the minimum period of imprisonment.
Ms Sykes' primary submission on behalf of Mr Mason is that express words were necessary to extinguish the system of Māori law of which Mr Jackson gave
The Crown submits that, applying the settled principles, there is no basis for setting aside the guilty pleas. 7 The submission is that the Crimes Act is a code which precludes the alternative processes and options advanced by the appellant. Sections 5(1) and (2) of the Crimes Act say so. Finally, the Crown submits that at its heart the appellant's case is still a denial of the statutory framework for criminal offences. The Crown says that argument is not in fact dissimilar to the Māori law sovereignty cases in which the Supreme Court and this Court have said that the relevant statutory regime prevails. 8
We consider that the intention and effect of the Crimes Act is plain. The Act provides a code for criminal offences within New Zealand. The language used reflects that. The key sections are ss 5 and 9.
Section 5 is found in pt 1 of the Act under the heading “Jurisdiction” and reads as follows:
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.
“Offence” is defined in s 2(1) of the Act to mean “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”. 9
Section 9 makes it plain that no one shall be convicted of an offence at common law or under any United Kingdom legislation and states:
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.
As Heath J concluded, 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”. 10 Murder and attempted murder are respectively offences under s 167 and s 173 of the Crimes Act. Further, Heath J was correct to find that there is no room for another institution or body to try an individual for murder or for attempted murder whether brought against Māori or...
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