IN THE Court of appeal OF new Zealand
	
CA558/2012
[2013] NZCA 310

BETWEEN	
TAMATI BENSON MASON
Appellant	

AND	
THE QUEEN
Respondent	

Hearing:	
26 June 2013	

Court:	
Ellen France, Stevens and Miller JJ	

Counsel:	
A T Sykes for Appellant
V L Hardy and R W Groot for Respondent	

Judgment:	
17 July 2013 at 2.30 pm	

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)
Introduction
[1]	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.
[2]	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.
[3]	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.  
Background
[4]	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.
The offending
[5]	We take our description of the incidents giving rise to the charges from the sentencing notes of Heath J.  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.  
[6]	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.
[7]	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.
[8]	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.
[9]	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.  
[10]	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.  
[11]	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.  
[12]	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”.
[13]	Mr Mason has affiliations to Ngāti Awa and Ngāti Ranginui.  The victims are Pākehā.
The question of jurisdiction is raised
[14]	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.  After Heath J declined the application, Mr Mason entered pleas of guilty to the two charges.
[15]	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.  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, 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 we would now characterise as “serious crime”. 
[16]	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.
[17]	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.
The appeal
[18]	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 evidence.  There are no express words of extinguishment in the Crimes Act and it is said that Heath J was wrong to draw the conclusion that custom could be extinguished by necessary implication.  Supporting that submission, Ms Sykes says that extinguishment would need to take place with the consent of Māori and that requirement, in turn, would necessitate consultation with Māori over the legislation.  The appellant draws support for these submissions from the recognition given to the right to self-determination in art 1 of the International Covenant on Civil and Political Rights (ICCPR) and to the protection of the right of ethnic minorities to enjoy and practise their own culture in art 27 of the ICCPR and in s 20 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights).
[19]	The Crown submits that, applying the settled principles, there is no basis for setting aside the guilty pleas.  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.  
The effect of the Crimes Act
[20]	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.  
[21]	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.
[22]	“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”.
[23]	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.
[24]	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”.  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 Pākehā or someone of another ethnicity.  This was the point made in Cock v Attorney-General.  In reliance on the predecessor to s 5, this Court said that a commission of inquiry could not be set up with its main object being to inquire into whether or not a member of a Licensing Committee had accepted a bribe because that was an inquiry into an alleged crime.
[25]	 Ms Sykes argues that the focus of s 9 is a narrower one, namely, a concern to ensure that no one is punishable for offences under the United Kingdom law.  That submission overlooks the prohibition in s 9 on conviction of an offence at common law, subject to the named exceptions.  It also overlooks the combined effect of ss 5 and 9 which demonstrates the intention that the Act will cover the field.  As Ms Sykes acknowledges, the heading of s 9, “[o]ffences not to be punishable except under New Zealand Acts”, expresses the broad intention.
[26]	Ms Sykes also submits that it is not clearly stated that the Act is to operate as a code.  We do not consider that express words of that type are necessary for the Act to have that effect.  When the Act as a whole is read, there cannot be any other conclusion.  
[27]	The legislative history is consistent with our approach.  The Royal Commission on the Law Relating to Indictable Offences was considering the introduction of a criminal code.  The explanatory memorandum to the New Zealand Criminal Code Bill 1883 indicates that the New Zealand code being enacted at that time dealt with indictable but not summary offences.  For indictable offences, the intention to create a code is plain:
The authoritative definition of offences indictable at common law, and of matters of justification and excuse…, is one of the main objects of the Bill …
The intention of the English Commissioners in framing the portions of the Bill affecting the common law has been to make the code in this respect conclusive, so that hereafter there shall be no proceedings by indictment at the common law … .
[28]	That intention is reflected in s 6 of the Criminal Code Act 1883 which states that persons party to any crime shall be proceeded against under that Act or under “some provision of some statute” not inconsistent with that and “shall not be proceeded against at common law”.  The Crimes Act 1908 contained a provision which was nearly identical in effect.  Garrow accordingly describes the effect of that section in this way:
In New Zealand all offences are now statutory.  No one can be indicted for a crime at common law.
[29]	We turn then to address the submission that express words of extinguishment are required.
Was it necessary for the Act to expressly extinguish custom?
[30]	While the appellant accepts that Parliament can legislate to extinguish custom, he says that express words to that effect are required.  We consider that this is a case where, as Tipping J said in Attorney-General v Ngāti Apa, Parliament has made its intention “crystal clear”.  Nothing further was required to achieve extinguishment in the present context.
[31]	Ms Sykes cites the Supreme Court decision in Takamore v Clarke as the best authority for the proposition that express words of extinguishment are required.  We do not consider that Takamore assists in this regard in this situation.  That case dealt with a claim made to the High Court by Denise Clarke for orders seeking the recovery by her of the body of her long-term partner, James Takamore.  Ms Clarke was the executor of Mr Takamore’s estate.  Mr Takamore was buried without her consent by members of his Whakatōhea and Tūhoe family in the family urupa at Kutarere in the Bay of Plenty in accordance with the tikanga observed by their hapū.  The case gave rise to questions about who had “charge” of the body.
[32]	It was accepted by the parties in that case that the relevant statutes did not determine the meaning of a person having charge of the body.  That meant this issue was to be determined in accordance with the common law.  McGrath J delivering the judgment of Tipping, McGrath and Blanchard JJ noted that the development of the common law in New Zealand:
reflects the special needs of this country and its society.  In New Zealand common law can never be in conflict with its statute law, but with that qualification, our common law has always been seen as amenable to development to take account of custom.
[33]	Tipping, McGrath and Blanchard JJ concluded that there was a common law rule “under which personal representatives have both the right and duty of disposal of the body of a deceased”.  McGrath J continued:
[164]	The common law is not displaced when the deceased is of Māori descent and the whanau invokes the tikanga concerning customary burial practices, as has happened in this case.  Rather, the common law of New Zealand requires reference to the tikanga, along with other important cultural, spiritual and religious values, and all other circumstances of the case as matters that must form part of the evaluation.
[34]	The outcome in that case was that the Court upheld the decision taken by Ms Clarke that Mr Takamore should be buried in Christchurch.  Elias CJ agreed with that result but took a different view as to the role of the executor of an estate.   Her Honour described the parties’ claims as claims “of competing right which fall to be resolved according to law by the High Court in its inherent jurisdiction”.  Importantly, for present purposes, the Chief Justice said this:
[94]	Values and cultural precepts important in New Zealand society must be weighed in the common law method used by the Court in exercising its inherent jurisdiction, according to their materiality in the particular case.  That accords with the basis on which the common law was introduced into New Zealand only “so far as applicable to the circumstances of the … colony”. … Maori custom according to tikanga is therefore part of the values of the New Zealand common law.
[95]	… As in all cases where custom or values are invoked, the law cannot give effect to custom or values which are contrary to statute or to fundamental principles and policies of the law.
(Footnote omitted.)
[35]	In our view Takamore illustrates the role of custom in informing the common law but that does not assist Mr Mason because the relevant statute, the Crimes Act, covers the field.  It is relevant in this respect that other statutes fill any space otherwise available for a parallel system.  Of particular relevance here are statutes such as the Bail Act 2000, the Sentencing Act 2002 and the Parole Act 2002.  In this context, we do not consider the provisions of the ICCPR or s 20 of the Bill of Rights alter the position.
[36]	The practical issues that would have to be addressed if Mr Mason succeeded on his appeal also demonstrate the difficulties with his legal argument.  Ms Sykes submits that in setting aside his guilty plea and allowing his conviction, this Court should remit the matter back to the High Court.  At that point, before the taking of a guilty plea, she says a process of engagement between the victim and Mr Mason’s families and his iwi as envisaged by tikanga in this area should take place.  That would require, Ms Sykes suggests, appointment of an independent mediator and, it is acknowledged, at least some consideration of the views of the victims’ family.  This proposed process suggests a hybrid rather than a parallel system.  Construed in this way, that is an argument for law reform, and not a jurisdictional argument.  Various matters would need to be considered in that context including, for example, the implications for victims.
[37]	In the present case, Heath J gave directions to enable a hui to be held prior to sentencing.  The Brown family was invited to attend although it was made clear there was no compulsion to do so.  The family decided not to attend but the Judge had before him and considered a report from the hui prepared by Maanu Paul.  This hui did not take place until about a year and a half after the offending.  That was because Mr Mason raised the question of jurisdiction.  He could have pleaded guilty at an earlier stage and then sought to invoke s 10 of the Sentencing Act.  That section provides that in sentencing or otherwise dealing with an offender the court must take into account various matters including the response of the offender’s whānau and any measures the offender or whānau propose to make compensation, apologise or otherwise make good the harm.  Section 27 of the Sentencing Act also enables an offender to request the court to hear any person called by the offender to speak on various matters including the cultural background of the offender and the way in which that background may have related to the commission of the offence and as to any processes that have been tried to resolve or that are available to resolve issues relating to the offence.
[38]	Ms Sykes says that there are various legal and practical barriers to such an early engagement in this process.  She refers in this context to the Bail Act and to resourcing issues.  Our research located two cases in which one of the grounds on which bail was sought was to enable the application of customary Samoan practices such as ifoga.  That would have involved the defendant having an opportunity to atone for his behaviour with family members, with a meeting to follow with the victims to try to seek a reconciliation.  Heath J in N T v New Zealand Police said he had “no doubt” specific bail terms “could be crafted” to enable N T to attend such meetings, once the Court had been provided with specific proposals.  Hugh Williams J in granting bail in R v M S, included a condition that M S not communicate with the victim’s family except for the purposes of a restorative justice or similar procedure.  There are also a number of instances where the sentencing process has involved an ifoga or aspects of that custom.
[39]	There is a further difficulty with Mr Mason’s suggested approach.  Mr Jackson’s evidence was that tikanga remains an essential and indeed vibrant part of who Māori are.  He also said that tikanga in all of its forms survives to this day.  However, he acknowledged in response to questions from Heath J that some “rebuilding” of the “practical effectiveness of tikanga as a legal process … when so much damage has been done to it” will be necessary.  Further, he accepts this process will be: 
… as long-term as rebuilding the language because there is a lot of history to overcome and it may well be that as that process matures, that part of the reconciliation in the Treaty relationship if you like is a negotiated jurisdictional ambit … when particular issues would be dealt with in a particular way the jurisdictional issues … if one party is Māori and the other is not.  Those are complex issues … .
[40]	The Judge asked Mr Jackson about whether Mr Mason would have an opportunity to opt out of the court system and how he would enter another system.  Mr Jackson replied:
The procedural concern I had … was the need to at least recognise the validity and the worth of a Māori jurisprudential outlook … If we’re looking at this issue in 20 years time, if I was around, I could more confidently say, “Yes, well there are now extant functioning processes in which this could be dealt with.”  In an iwi/hapū context and many iwi and hapū do have those processes and the people skilled in implementing them but that’s part of the evolutionary rebuilding, … but the attempts to rebuild that are constantly being hamstrung when we are told so often that there’s no such thing or it’s been extinguished or it has no validity … .
[41]	On this evidence, tikanga is not presently a viable legal process for serious crime even if continuity of custom could be demonstrated.  Apart from the practical difficulties that arise under the current framework if Mr Mason was able to choose to be dealt with under a different system, there may be an issue as to whether it is necessary to show continuity of custom.  On that aspect, the submissions for the Crown refer to cases in the 1840s which the Crown says support the proposition that “the doctrine of continuity of custom ... has not historically applied in the case of murder, particularly murder across cultures, but even in the case of inter se murder”.  However, we need not say any more about this aspect because of the view we reach as to the effect of the Crimes Act.
The need for consent
[42]	Nor do we see any merit in the argument that consent was a necessary prerequisite to extinguishment.  As Ms Hardy submits on behalf of the Crown, on the traditional tests, consent is not a requirement for extinguishment.  As Ms Hardy also says, in Treaty of Waitangi jurisprudence, absence of consent may point to a breach of the principles of the Treaty of Waitangi on the part of the Crown but it does not revive a customary right.  The Crown submission must also be correct that the matter of consent more appropriately applies to executive action.  As Heath J noted, where Parliamentary action is concerned, consent is given through the authorisation by society of “a properly constituted Parliament” to legislate.
Result
[43]	For these reasons, the appeal is dismissed.

Solicitors: 
Crown Law Office, Wellington for Respondent