R v Mason Hc Tau

JurisdictionNew Zealand
CourtHigh Court
JudgeHeath J
Judgment Date15 June 2012
Neutral Citation[2012] NZHC 1361
Docket NumberCRI 2011-070-1249
Date15 June 2012

[2012] NZHC 1361

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2011-070-1249

The Queen
and
Tamati Mason
Counsel:

A Sykes and T Tuari for Accused

N G Belton for Crown

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.

At issue was whether a customary system existed; and, if so, whether it had been extinguished.

Held: Around the time of both the Declaration and the Treaty there was a general acceptance that existing customary practices had “the character and authority of law”. Subject to a “repugnancy” qualification, it was clear that the Imperial Parliament recognised that there were pre-existing “Laws, Customs, and Usages” of Maori that should be given effect.

By 1873 the judicial oath had been changed to recognise the need to take account of “the laws and usages of New Zealand” (Promissory Oaths Act 1873) and that form continued to present day. Adoption of the term “usages” in an 1873 statute was more likely to refer to those of Maori than those of the much more recently arrived European settlers. Those responsible for governing the colony in its early days accepted the existence of legal norms that were followed by Maori (s71 New Zealand Constitution Act 1852).

On the evidence of oral history (passed through whakapapa) and Maori customary laws and institutions there was no doubt that prior to the Declaration and the Treaty, 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 that would be considered as “serious crime”. The question was whether that customary system had survived the statutory system presently in force.

The combined effect of s5 (application of act) and s9 (offences not to be punishable except under NZ Acts) Crimes Act 1961 (“CA”) was that the customary system had been extinguished. It was not possible to regard the customary system as an existing parallel system. No person could be tried for a criminal offence by a method or procedure other than that laid down in the CA. Since the adoption of the Statute of Westminster 1931 (Imp) in 1947 NZ Parliament had had full and exclusive power to legislate in NZ ( Barrett v Police). The principles of the CA did not permit any institution or tribunal, other than Courts established by Parliament for the purpose, to try any criminal charge in NZ, whether brought against Maori, Pakeha or a person of another ethnicity.

This did not exclude the possibility of custom playing a meaningful role in criminal proceedings, provided it could be accommodated within the existing statutory system. Maori concepts such as utu (reciprocity) and muru (redress) could assume some significance in the sentencing process and the existing sentencing jurisdiction recognised the relevance of customary practices. However, this did not mean that there should be a parallel sentencing system, but simply that there were values that could be compatible with the way in which sentencing would be undertaken in the existing framework. Further where the offender was Maori and the victims were non-Maori, the victim could not be compelled to embark on a process based on tiaknga Maori..The law of NZ had to be administered in the interests of society as a whole ( R v Talataina), and Maori concepts could not represent a complete societal response to offending.

Application declined.

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...

To continue reading

Request your trial
8 cases
  • Mason v R
    • New Zealand
    • Court of Appeal
    • 17 July 2013
    ...by society of “a properly constituted Parliament” to legislate. 30 Result 43 For these reasons, the appeal is dismissed. 1 R v Mason [2012] NZHC 1849 at [10]–[26]. 2 At [26]. 3 In evidence, reference was also made to the hapū Ngai Tamarawaho. 4R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695......
  • Marsich v Commerce Commission
    • New Zealand
    • High Court
    • 11 July 2017
    ...institutions or tribunals. While it may fairly be said that each person will be 7 8 Wallace v R [2011] NZSC 10 at para [2]. R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at paras judged for their actions by their maker, whether that is true does not affect the obligation of the Courts to en......
  • MANAWATU-WANGANUI Regional Council v The Happy Hog Limited
    • New Zealand
    • High Court
    • 19 February 2015
    ...Happy Hog to avoid liquidation by paying the amount owing (including costs) if it is able to do so, 5 Refer to The Queen v Tamati Mason [2012] NZHC 1361 at [33] – [34], and the cases cited Heath J in those paragraphs. and if it wishes to do so. The Court will not entertain further argument ......
  • P v Police
    • New Zealand
    • High Court
    • 6 October 2017
    ...was cognisant P had no Youth Court history. The Judge 17 18 19 20 21 Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 at [73]. R v Mason [2012] NZHC 1361, [2012] 2 NZLR 695 at R v P CA59/03, 18 September 2003 at [13]. I was advised by counsel this offender escaped custody and committed furt......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT