tikaka and criminal law - L 1-3

Criminal justice system differences

Every place wants to maintain order, reinforce accepted values and punish breaches.

NZ: Criminal law - descending from UK = large scale, law making-bodies and codified laws. (Live under the law)

Tikaka: set of laws for what you should and shouldn’t do - living with the law.

Central aim of justice processes in tikanga māori

Restoration of balance

Key differences in focus: (māori vs UK)

1. Outwards v inward looking

2. The person vs the behaviour

3. Collective vs individual responsibility

4. Rebalance vs punishment

5. Omission-based liability vs liability for actions

6. The substance of crimes/wrongs

Outward vs Inward Looking

• English CJS - individual, inward focus at that very moment. (AR + MR)

  • Not really worried about how they got there and their background.

• Tikaka = 'Externally-focused' way of being (histories, genealogies, connections) -> person as they are and embedded in their relationships and how this wrong has affect their relationships

Tikaka Māori: Philosophies of criminal justice (important values)

• Whanaungatanga -> relationships and importance of restoring them when a hara (transgression of hapu/harm/wrong) occurs

• Utu -> reciprocity -> balance being restored

• Ea ->state of balance one utu has been served

Person vs behaviour.

• ECJS - 'guilt' society - did behaviour happen? What is the appropriate punishment?

• 'Shame' society- how the behaviour reflects on a person's mana and the mana of their whānau/hapū/iwi -> at some point, shame comes to an end

Collectives vs individual responsibility:

• ECJS: deterrence by setting punishment at a sufficient level.

• Deterrence achieved by placing behaviour in context of the collective. (not just you who pays the price - it's your whanau and depending on seriousness much wider hapu and iwi, could be strong consequences for everyone)

Rebalance vs punishment;

• ECJS: Deterrence? Retribution? Denunciation? Rehabilitation, reintegration? - Punishment may make the balance worse

• Tikanga: How did this happen for this community - getting to the bottom of the issue

• Take (identification of issue) -> utu -> ea

Omission-based liability vs liability for actions;

• ECJS: focus only on individuals; and usually on this they did not what they failed to do (exceptions for causing dangerous issue) - based on autonomy, UK based law is reluctant to place criminal liability on omissions.

• Tikanga: Accountability is based on a group's collective failure re: offender/harm - No 'offenderless' crime

Summary of differences in criminality

Tikanga - liability is collective in the sense that the process is directed at the repair of relationship and restoration of rebalance rather than the punishment of a particular individual.

common offences that are shared in the 2 systems

• violations of person and property

• murder (kōhuru)

• suicide (whakampmore) - illegal until recently

• infanticide (roromi)

• abortion (whakatahe) - illegal until recently

• rape (tūkino)

• incest (ngau whiore)

• adultery (pūremu)

• family violence

• swearing (kanga)

• theft (whānako)

family violence - case study

1) what made family violence a serious crime

2) how was it generally responded to?

1) The maintenance of balance was essential to the viability of the whanau, hapu and iwi. The recognition of the inherent tapu of each individual within the whanau preserved the equilibrium of the whanau unit. This formed the basis of a comprehensive code of conduct to ensure the protection of community members. Assault on a woman was regarded as extremely serious as it violated the inherent tapu of a woman.

2) Death, being declared dead by the community (serious because it separates you from whakapapa), collective financial restitution.

Murder case study:

1) what does kōhuru refer to

2) what made a killing amount to kōhuru (as opposed to patu)

3) why was kōhuru a serious crime?

4) response to kōhuru.

1. Kōhuru was used to denote the infliction of a serious injury, usually physical and fatal, without just cause.

2. The elements of treachery, lack of justification, and stealth distinguish it from patu

3. Its severing of communal relations and whakapapa links; shattering of whanau, hapu and iwi

4. Generally punishable by death of the perpetrator or a member of his whanāu. Retribution or compensation for murder could take form of land transfer or symbolic death.

Processes and sanction - tikaka

Identification- take-utu-ea.

Public acknowledgement of a wrong, admissions of responsibility, highly deliberative and participatory.

Muru

Pana

Whakamā

Muru

to wipe or rub - the ritual seizure or stripping of goods to ‘wipe clean’ the harm = redress without bloodshed.

• Planned takings - Subject of discussion to ensure it is an appropriate response and so that ea is achieved and its not going to far.

• Basis for muru example could be not caring for a significant person adequately resulting in a disaster.

• Whakapapa links were usual and more likley to bring about sucess buth other proximity could suffice

Pana

banish.

For socially disruptive offences such as murder and adultery, sexual abuse - a severe sentence, not necessarily permanent (depends on gravity)

Whakamā

Shame but with no blame attached - Let shame be their punishment

. Fundamentally relational— when a person or group has lost mana in the eyes of their peers.

Usually not left open-ended or unresolved - risks when left like this [can be passed from generation to generation etc] - SC recognised this in relation to publication of names.

How does whakamā interelate with NZ courts today

Whakamā opens a way for re-integration into normal social life. Tikaka recognises it as both admission of fault and part of the punishment that purges the offender of his guilt.

= Places māori at a disadvantage in the national system of justice.

Māori offenders often plead guilty in the expectation that whakamaa and confession will be counted as part of their punishment. - this is not the case.

Was application of english criminal law inevitable.

1843- no reason they should be exempt from English law but also no reason why tikanga can’t apply and ‘be tolerated’ between māori where no person of European birthright had any concern or interest. Unless the customs conflicted with the universal laws of morality e.g. human sacrifice or cannibalism.

after 1840 it wasn’t inevitably seen as incompatible with continued Māori self-government under customary law.

early application of english criminal law.

Trial of Maketū Wharetōtara - first trial of māori for murder. Nov 1841

FACTS:

• Young chief living on island -> bought by a family, employment dispute arose and he then killed person

• Was discovered doing the hara, then killed everyone who saw.

• Handed over to English authorities

Trial SC (now HC) at Auckland 1842 - Trial couldn’t have happened until the meeting of chiefs in Dec 1941 - Hone Heke disagreed with handing him over to UK authorities -> almost all vote for him to stand trial (didn’t want utu to become an issue)

Jurisdiction of the court to try Maketū

• Assigned his lawyer the morning of trial

• Sought order from court that he was outside of the jurisdiction

• Rejected application for Māori on the jury.

• 2 days including judges summing out - jury only took 2 minutes [nowadays it's probably at least a day]

• Based solely on admissions which would now be inadmissible -> quickly through process like 2 weeks later he was dead

Accomodation for tikanga - in new courts for lower level offending

punishment for theft - what was the nature of māori objection.

Degradation of mana -> imprisonment was seen as pointless -> doesn't recompense person who was wronged.

Underlying principle of the solution by Māori chiefs - why can’t we repay and restore ea with an utu?

Led to the Native Exemption Ordinance of 1844

Native Exemption Ordinance of 1844 - what it’s effect was, underlying motivations of NEO, repeal and replacement. - Example of an ‘ordinary court’ applying some principles drawn from tikanga to māori defendants

effect:

• warrants to arrest subject to the approval of 2 principal chiefs of the alleged offender’s iwi.

• When charged with theft or receiving property payment of a bond of 4x the value of the goods [capped at 20 pounds] would lead to remand at large and the avoidance of sentence of imprisonment if convicted.

• Bond is payable to victim, NOT the state, upon conviction.

• Said to closer mirror Māori customs of muru and utu than the general English Law.

• Prinicple was extended in 1845 of the Fines and Assault Ordiance, where half the fine was paid to V

Underlying motivations of the NEO

• Trying to assimilate Māori -> weaken Māori customs and when they come to understand UK law then they'll understand and be fine with it.

Repeal and replacement

• Settler population -> didn't like the approval of the principal chiefs

• Replaced with Governor Grey -> given instructions to not give this carve out -> replaced it but recognized it was working -> kept the fine thing just removed the chief thing.

BUT his instructions were never fully implemented

What about applying tikanga to Europeans?

NZ constitution Act 1846 - allowed for the setting apart of regions of NZ as ‘Aboriginal Districts’.

As part of that legislation -

• within the the districts Māori customs would be maintained and MC would be appointed for the maintenance, interpretation and execution of Maori customs that were not repugnant to the general principles of humanity in matters between Māori only.

• Regular courts were also to enforce Māori laws and customs in matters between Māori occuring beyond the Aboriginal districts

• Europeans who violated māori customs within aboriginal districts were to be held accountable for those breaches in the regular provincial courts.

• Regime was viewed as temporary over time as distinctions b/t tikanga Māori and british law would be diminished by assimilation.

Was this a radical proposal?

• Earl Grey sent instructions to Governor Grey about the new regime - recognised there would be difficulties in exercising these rules but they would be easily surmounted

BUT this was never fully implemented

Further accommodation of tikaka

All māori juries - before 1844 property requirements for jury service effectively disqualified Māori.

1844 Juries Amendment Ordinance allowed māori to serve on mixed juries where a māori person was involved.

All māori juries - 1862 - not abolished until 1961 - only used if all parties were Māori (V and O)

Right not often exercised and implementation frequently obstructed.

What to make of the history

• Not serious attempts to recognise tikanga as law. Rather if anything, they were temporary abrogations to allow for eventual Māori civilisation [in British legal order]’