R v Mason Hc Tau

• Jurisdiction: New Zealand
• Judge: Heath J
• Judgment Date: 15 June 2012
• Neutral Citation: [2012] NZHC 1361
• Court: High Court
• Docket Number: CRI 2011-070-1249
• Date: 15 June 2012

The Queen

and

Tamati Mason

[2012] NZHC 1361

CRI 2011-070-1249

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

Reasons for decision (delivered 15 June) — application by accused for ruling that he should be dealt with in accordance with Maori customary law or tikanga Maori — committed for trial for murder and attempted murder — submitted 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” and therefore tikanga Maori existed and continued to operate as a source of law in its own right — whether a customary system existed — whether customary system had been extinguished — sentencing considerations.

Counsel:

A Sykes and T Tuari for Accused

N G Belton for Crown

REASONS FOR JUDGMENT OF Heath J

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 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

LXX1. ‘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 s71, until repealed by the

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 Wellington 9 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 Apa 12 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

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...