Tikaka and criminal law - 4-6

treaty differences

Māori - crown acquires kawangatanga (governance)- Māori retain tino rangatiratanga

British: the Crown gets sovereignty; Māori keep full and undisturbed possession of property etc

• rangatira didn’t cede sovereignty

Base for including tikanga in criminal system or a seperate system

Art 2, Māori retain sovereignty over lands and taonga - taonga includes tikanga. Otherwise, tikanga is a necessary and inevitable expression of tino rangatiratanga.

Art 3. guaranteed to māori the Crown would have the Queen’s protection and all rights and privileges accorded to the British- a claim to address factors that mean Māori are disproportionately overrepresented in the CJS.

What is the relations b/t tikaka and state criminal law today.

Within the system:

• TM as a matter of fact going to defences, reasonableness etc.

• TM in statute

• TM in institutional design and processes

• TM as a value to be drawn on in the development of the law (Cf. name suppression)

Outside system:

• parallel system of justice

Arguments for a parallel system

Based on art 2,

• Māori retain sovereignty over lands and taonga - taonga includes tikanga. Otherwise, tikanga is a necessary and inevitable expression of tino rangatiratanga.

Tikanga continues to operate in Māori communities

R v Mason [2012]- state laws attitude to separate system

Does a Māori customary legal system exist that has not been extinguished thus does the HC lack jurisdiction over Masons’s murder charges? Held: HC has jurisdiction as ss 5 and 9 of Crimes Act 1961 effectively extinguishes any customary law system for dealing with crime.Thus it’s not possible to regard the customary system as an existing parallel system

1. Because parliament have given the Court jurisdiction to hear and determine criminal cause it is impermissible for any other institution or tribunal to attempt to replicate those powers.

2. Little opportunity to apply custom in the trial process (adversial vs community-based - kind of incompatible)

3. tikaka māori in sentencing (utu and muru) -

4. practical problems - Non-Māori victim and the conflict between customary and statutory systems, political will? Need to rebuild customary practices, Customary reconciliation may resolve issues b/t V and D but not achieve the community’s interest in ensuring that those guilty of serious criminal offending are sentenced appropriately.

Tikaka Māori as a matter of fact going to defences, elements and reasonableness - case example incl.

consideration of reasonableness

• tikanga may come into consideration for what is reasonable (R v Iti)

• Important in cases involving duties e.g. parental responsibilities

R v Rudelle

• Facts: D stabbed her partner in the course of an argument, suffered years of abuse at the hands of V.

• Issue; did D act in self-defence

• Self defence test: Subjective and objective test

  What were the circumstances per the victim

  Was the force used reasonable

• Evidence: tikanga evidence about social context and nature of dynamics of family violence. Cultural pressure on women to nurture and look after people whom they are in a relationship with (aroha and manaakitanga) - explained the considerations she would’ve thought about - obligations to son - why she may have acted then not earlier.

• Outcome: rejected self-defence. Acquitted of murder; found guilty of manslaughter.

Tikanga in statute

Almost none in key crim legislation that refer to tikaka māori or te tiriti

Major exception: Oranga Tamariki Act 1989 - governs the youth court

Minor exception: Sentencing Act 2002

• s 8 (principles of sentencing).- must take into account the offender’s personal, family/whanau, community, and cultural background in imposing a sentence - with a partly or wholly rehabilitative purpose’

• Restorative justice ss 8, 24A

• s 27.

tikanga in institutional design and processes - examples of criminal justice processes being adapted to recognise Māori cultural values?

1) Marae courts/solution focused courts

2) Restorative justice processes inserted into criminal sentencing

3) Te Ao Mārama

What criticisms do these institutional design and processes get?

• ‘Marae justice’ undermines the authority of kaumātua of that marae.

• Motivated by other goals (victims rights advocacy and cost saving)

• not an answer to Māori claims for self-determination

• systemic issues aren’t adressed

• focus on individual not the collective

• diversion relies on the police to make referral = state law providing the framework

• TAM involves incorporation of cultural concepts and protocols as opposed to tikanga havign authority as a body of law.

• indigenous window dressing of exisitng pakeha institutions. - without deeper reform and broader systemic change the current system will never allow the kind of transformation change that is required to address Māori overrepresentation within the criminal justice system.

Tikaka as a value of the common law

Ellis v R

• Issue: Should an appeal against conviction continue following the death of an appellant

• rule 5(2) of SC rules 2004 - where no procedure is prescribed in the rules the court may dispose of the case ‘ in the manner that the court thinks best calculated to promote the ends of justice. = discretionary

• sub issue 1: does tikanga affect the exercise of that discretion?

• held 3:2 majority that the court did not consider that tikanga was material to the development of the CL rule in issue BUT were unanimous that tikanga has been recognised in the development of the CL of NZ in cases where it is relevant.

another different majority found that: tikanga is the 1st law and continues to regulate the lives of Maori - identified principles for future engagement b/t tikanga and common law

Ellis v R on when tikanga should be considered - principles for future engagement

Must be considered where it is relevant in the circumstances of the case and not where it would be contrary to statute or to binding precedent.

• Relevance may be due to the identity or expectations of the parties, settling of a dispute or a broad policy reason for which tikanga may assist in resolving the dispute.

• prior authorities will be useful to ascertain relevance

• sometimes these principles and CL may clash - differences need to be worked through on a case by case basis

• weight that is placed on tikanga will depend on the context.

when tikaka is identified as a tikanga issue what does Ellis v R say what might need to be done (value of the CL)

Court must use processes and practices that help preserve the integrity of tikanga and not impair its operation as a cohesive system of law in its own right.

Minority in Ellis

• considered the case not suitable to make pronouncements about the place of tikanga as it did not materially affect Glazebrook J’s decision.

• tikanga has a fundamentally different approach to wrongdoing than CL - makes its incorp not straightforward.

• tikanga approach implies continuance = default. CL position is that successful applications for continuance will be rare and must have a very good reason.

• difference does not mean tikanga is not relevant but should develop in cases where the application or incorporation of tikanga affects the outcome.

what is name suppression

• legal restriction on the publication of the identity of a certain individual

• can be d, victim, witness or connected person

• decision made by court - can be permanent or temporary

• in NZ governed by s 200 and 202 of Criminal Procedure Act 2011

starting point of name supression

open justice - fundamental to CL system of civil and criminal justice.

underlying rationale:

• maintains public confidence in administration of justice

presumption in favour of openness; reasons incl:

• publication of D’s name avoids possibility of suspicion falling on others

• may lead to discovery of additional evidence

• help prevent further offending

• personal deterrence

• enables clients or patients or other contacts to decide what to do

• significant risk of other undetected offending publicity may encourage those victims to come forward enabling further charges to be laid and v’s receiving help

when can the court suppress the identity of the defendant?

s 200:

may make order only if they are satisfied that publication would be likley to A)-h) but notably

A) cause extreme hardship to person charged with offence or connected with the person

c) cause undue hardship to any victim of the offence

2 step inquiry:

1. is one or more of the threshold grounds in s 200(2) met? (threshold)

2. if threshold ground is made out, should - in the court;s discretion- suppression nevertheless be declined? - discretion

threshold ground for defendant name suppression; Extreme hardship

D v Police - require the court to compare consequences of publication in the instant case with those that normally attend prosecution. Distress, embarrasement and adverse personal and financial consequences usually attend criminal proceedings something out of the ordinary is needed if the applicant is to get across the threshold.

Robertson v Police - a very high level of hardship - something more than simple hardship

Consequence must be likely

• ‘real and appreciable possibility’ of the relevant consequences coming about from publication (D v Police)

examples of extreme hardship for s 200 defendants

R v A - arson of a marae

A- serious cardiac issues, 3 past heart attacks, stent inserted after court - significant risk of further cardiac events if put in a position of high stress. Would cause significant stress with significant risk of serious adverse health consequences . Stress exacerbated by status in community

(b and c) - probably that it would be met - crown offered no evidence - inevitable and heightened whakmā and loss of mana in case of this kind

Hannom-Henry v R

• impact on D’s health due to her compromised immune system [result of successful chemo treatment] = not enough to meet the extreme hardship test - too speculative

discretion section of s 200 defendants

D v Police-

• open justice principle must be considered a this stage

s 202 connected persons and victims — 3 step inquiry

1. Is the applicant a victim, witness or connected person in terms of s 202(1) of the Act [victims/connected person]

2. threshold - are one or more of the threshold grounds in s 202(2) met?

3. discretion - should in the courts discretion suppression nevertheless be declined.

s 202 - victim or connected person

s 5 CPA victim has meaning given to it in s 4 of V’s Rights Act 2002.

a)

i) person against whom an offence is committed by another person;

ii) a person who through or by means of an offence committed by another person suffers physical injury or loss of or damage to property; and

iv) a member of the immediate family of a person who […] or is incapable unless that member is charged with the commission of or convcited or found guity of or pleads guilty to the offence concerned,

St Peters College v R - connected person can include a school

Undue hardship for the purposes of s 202 - CP and V’s - threshold

‘undue hardship’

Parker v R

• lower threshold than extreme hardship - hardship that is greater than that which will inevitably follow publication'.

Look at R v R for tikaka an name supression

discretion per 202:

st peters college v r -

Open justice etc

Shows us how discretion can play out for connected people

Schools reputation -> public interest in knowing context of offending

Except where the school's involvement/connection is much smaller than the offending vs

R v R - (Parr v R) tikaka Māori and Name Suppression

Facts: Appellant found not guilty by reason of insanity in relation to the killings of both his former partner in 1997 and his mum in 2024. Suffering schizophrenic delusions on both occasions, been released from a mental health facility weeks prior to his mums death - occurred while subject to a community treatment order.

Issue: Should name suppression be granted under s 200(2)(a) or s 200(2)© on account of the experience of whakmā as a result of publication.

Evidence: Che Wilson;

• Kōhuru would be discussed openly at tangihanga to ensure transparency and restitution

• publication beyond that context would inflict extra muru on both whānu who are grieving… and coping with the whakamā of the 2 kōhuru.

• = excessive punishment of the whānau and could be deemed as a new level of utu which could potentially spiral into an intergenerational quagmire of trauma

Crown Position- tikanga supports an open and transparent justice process. What happened on the marae is consistent with that. Tikanga does not have unfettered reign over codified criminal law

Outcome:

• appeal dismissed

• overwhelming interest in giving supremacy to the principles of open justice

• agrees that tikanga favours open justice

• SC: tikanga does affect the interests of justice - but its a question of public interest in the context of name supression = a question of general or public importance.

• SC: Parr - not an ‘appropriate vehicle’ to consider the issue because tikanga had not been raised until it was before the CA