Philip Temple
Fragile Foundations: The application of English criminal law to crimes committed in Aotearoa New Zealand between 1826 and 1907 by David Collins (Te Herenga Waka University Press, 2024), 486pp, $70
Justice David Collins, former High Court judge, solicitor-general and member of the Court of Appeal, has produced a narrative that, while of greatest interest to an audience of lawyers and law students, provides any student of history with an insightful account of the impact of British criminal law on the development of New Zealand as a Crown colony.
Within the current context of debate about the principles of the Treaty of Waitangi, many will find the first half of the book—three parts covering ‘The Precolonial Era’, the ‘First Prosecutions of Māori under English Laws’ and ‘The Imposition of Martial Law and the Prosecution of Māori for Treason’—especially illuminating and relevant.
In his Introduction, Collins lucidly explains the essential disconnect between Māori tikanga and the premises of English law. ‘Unlike English criminal law, which placed immense value on individual responsibility as assessed by an objective and impartial judge, traditional Māori society treated wrongdoers as members of the collective, and the assessment of their offending and punishment was also usually a communal affair.’ Although ariki, rangatira and kaumātua were leaders in hapū and iwi, there were no clear hierarchies comparable to those in European societies. In 1856, one English official stated that Māori society resembled ‘a democracy limited by a certain amount of patriarchal influence’. Māori society and law practices were difficult to incorporate into European concepts of law, compounded by an oral tradition in which Māori leaders proved adept in ‘artful advocacy’.
Tikanga was based on a complex web of understandings and values that incorporated whanaungatanga, mana, tapu, utu and muru. It was ‘dynamic and evolved to meet new circumstances’. It was inevitable that the fluid nature of tikanga and the English justice system, based on written criminal law with its relatively fixed range of punishments, would often prove to be at odds, leading to conflict.
Comparative punishments for theft illustrate the chasm between cultures. While English law provided for theft to be punished by imprisonment, transportation and even execution, the Māori approach was both more lenient and more summary. Chief Justice William Martin in 1844 recorded Ngāti Tūwharetoa ariki Te Heu Heu’s statement that ‘if a man were to dare to take one of my wives, I should kill him of course, at once, but if he steals little things I take no notice’. A more serious crime, such as the murder of a rangatira or a member of his family would likely involve the whanaungatanga provisions of utu or muru, and lead to the execution of the perpetrator and members of their whānau. This was the principle that led Ngāti Toa rangatira Te Rangihaeata to summarily execute Arthur Wakefield and members of his party at the Wairau in 1843, after his wife had been shot.
To most English settlers and administrators, aspects of tikanga such as this appeared arbitrary and barbaric. Yet Māori considered the English practice of long-term incarceration as inhuman. Loss of freedom and separation from whanau and hapū was seen as a fate worse than death and, in some cases, Māori condemned to imprisonment asked to be executed instead.
Justice Collins uses specific cases to illustrate his story and arguments. Māori execution tended to be prompt and decisive, if arbitrary, but executions under English law could be at least as barbaric, if not more so. In 1848, Joseph Burns was convicted of the murder of Lieutenant Robert Snow and two members of his family on Auckland’s North Shore. He was ‘taken to the gallows after being paraded in the back of a cart through central Auckland. He was then taken by flotilla to the North Shore and made to sit on his own coffin as he awaited his execution. The purpose of this display of brutality was, in part, to show Māori the full horrors that could result from breaching English criminal law’. Sentences of being hung, drawn and quartered could still be handed down, although parts two and three were always commuted!
Worsening the inequities and challenges caused by the clash of English criminal law and tikanga was the mediocrity of many of the judges employed. Becoming a judge in New Zealand was rarely seen as a favourable career move among the legal fraternity in England. A second-rate judiciary made numerous errors of judgment that were not always rectified; some judges were guilty of showing bias in their instructions to juries.
The Native Exemption Ordinance introduced by Governor Robert FitzRoy in February 1844 was an attempt to incorporate aspects of tikanga into English legal practice. ‘It was designed to ameliorate for Māori some of the most objectionable features of English criminal law and procedure.’ But it was seen as transitional legislation until Māori ‘had yielded to a “ready obedience to the laws and customs of England”’. FitzRoy said that it could only be contemplated because ‘no other colony produced Native inhabitants so well informed as the Natives’ of New Zealand. The Ordinance allowed for elements of tikanga to be taken into account. For example, in disputes between Māori only, warrants could not be issued without the authorisation of two principal chiefs of the injured party’s iwi. Compensation awarded to victims reflected utu and muru in that half of a fine was to be paid to the victim. But the Ordinance also provided for injuries to Pākehā by Māori, whereby no warrant for arrest could be issued without the authority of two chiefs of the offender’s iwi.
This led to an uproar among the settler community already deeply aggrieved by FitzRoy’s judgement that the Nelson settlers killed at the Wairau had been in the wrong and, therefore, neither Te Rangihaeata nor Te Rauparaha would be punished. The former had expected some form of utu and consequently called the governor a ‘pumpkin’. But FitzRoy simply did not have the resources to exert any kind of punishment anyway.
Complaints and remonstrations against FitzRoy by the New Zealand Company and their allies in London saw FitzRoy recalled and replaced by George Grey. The Native Exemption Ordinance was repealed and other measures introduced which, while continuing to acknowledge tikanga, were aimed at assimilation of Māori. Increasing conflict between Māori and settlers in the Wellington region then led Grey to declare martial law in 1846 as he deployed troops to settle fighting in the Hutt Valley. To Grey, it became evident that Ngāti Toa’s Te Rauparaha and Te Rangihaeata were orchestrating armed tribal opposition. He set out to neutralise them by, first, kidnapping Te Rauparaha and keeping him an ‘open’ prisoner for 18 months; then driving Te Rangihaeata into exile in the Manawatū swamps. Neither was court-martialled, but other Māori were, in both Wellington and Whanganui, and some were executed. This ‘demonstrated Governor Grey’s willingness to suspend normal criminal law procedures to achieve short-term political gain’. In fact, even using martial law in a civilian environment was fundamentally illegal but at a time when it took six months for an exchange of correspondence between Wellington and London, Grey knew he was beyond the effective reach of the Colonial Office.
The passing of the Native Rights Act in 1865, under Grey’s second stint as governor, declared that ‘Every person of the Maori race within the colony of New Zealand whether born before or since New Zealand became a dependency of Great Britain shall be taken and deemed to be a natural-born subject of Her Majesty to all intents and purposes whatsoever.’ This meant that Māori came under all provisions of English criminal law, including being subject to conviction for treason. Collins covers the several trials for treason of Māori rebels against the Crown, culminating in the execution of Hamiora Pere, a follower of Te Kooti. Pere’s hanging was nothing more than a warning to others and had no rational basis when the sentences of all other Māori convicted of treason served only short periods of imprisonment. Pere’s execution was ‘one of several instances in which colonial administrators either suspended the application of normal criminal law procedures in favour of martial law, or arbitrarily used the criminal law to punish Māori’.
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Where the first half of the book deals largely with the impact of criminal law on Māori, Justice Collins devotes most of the second half to detailed examination of key Pākehā cases that show the application or misapplication of English criminal law, and which reflected colonial society and its expectations.
Part Four deals, at length, with ‘Applications of the Law of Insanity’ before Part Five covers ‘Malicious Criminals’. Part Five begins with a chapter titled ‘A Punitive and Puritan Society’, describing social attitudes that influence society even today. Incoming British settlers during the Crown Colony period were ‘united in their disdain of the criminal classes in Australia’s penal colonies and were determined their society would not be contaminated by undesirable criminals being transported’ to New Zealand. This brought a rapid end to the transportation to New Zealand of boys from the Parkhurst Juvenile Prison, although some of those who did arrive were transported on to Van Diemen’s Land (Tasmania) along with other miscreants. Other instances of punitive measures for convicted criminals were the practice of public hangings, and whipping and flogging, provision for which remained in place until 1941.
The 1866 Maungatapu goldfield murders by the Burgess gang produced a variety of anomalies in the way that evidence and witnesses were procured and their trials conducted. The chapters on the 1880s Thomas Hall Timaru poisoning cases, focusing on laws governing propensity evidence, reveal the ‘arbitrary way criminal laws were applied during the colonial eras’. The same legal issues are examined concerning the 1895 trial of baby farmer Minnie Dean, in a social climate throughout the Anglo-Saxon world of finding ‘baby farmers’ a ‘convenient scapegoat for the appalling infant mortality rate’. Dean was ably defended by Alfred Hanlon in pursuit of a conviction for manslaughter. But the presiding Judge Joshua Williams had a low opinion of the intelligence of juries and virtually directed his jury to bring a verdict of murder by delivering a one-sided summing up in order to ‘methodically dismantle every one of Hanlon’s submissions’. Minnie Dean became the only woman to be hanged. At the time, moves had only begun to limit judges’ opinion of the facts of a case given to juries. ‘Today, juries in New Zealand are instructed that if a judge expresses his or her opinion on the facts and that opinion does not accord with the jury’s views, then they must place the judge’s opinion to one side.’
Justice Collins devotes a chapter to the 1905 murder trial of Lionel Terry, who surrendered himself after randomly shooting an elderly Chinese man in Wellington in the grip of extreme Sinophobia.
His last chapter looks at the 1864 case of Walter Tricker, who was wrongly imprisoned for murder and only released after six years of relentless campaigning by the Reverend Arthur Stock, who ‘fully appreciated the miscarriage of justice from the outset’. Authorities who had ‘sworn to uphold the law chose to resist Stock’s efforts rather than offend the misplaced dignity of the Supreme Court’. Collins notes that the key feature of the Tricker case, which ‘continues to reverberate, is the way in which, ultimately, the injustice perpetrated upon an innocent man was only addressed by public pressure being exerted upon those in positions of authority’.
In his ‘Conclusions’ Collins comments that ‘one indisputable advantage’ of the criminal justice system is that it ‘has always had the ability to adapt to social expectations … even if those occur gradually and cautiously’. Some of the deficiencies exposed by the cases he has examined have been ‘substantially remedied’. But New Zealanders still tend to take a punitive attitude towards criminals, and the abrasion between criminal law and tikanga continues, reflected in the disproportionate number of Māori in prison. He sees ‘positive changes’ happening with the recent ‘revitalisation’ of Māori culture. In an echo of 1844, the ‘Supreme Court has observed that tikanga “has been and will continue to be recognised”, in the development of New Zealand’s common law’.
Justice Collins comments early in his book that tikanga is a ‘dynamic’ force adjusting to new circumstances. The question might be asked, ‘Is this the dynamism that underpins the moveable feast of Treaty Principles?’ Contradictions and abrasions remain and will continue to bedevil the development of laws for all New Zealanders.
PHILIP TEMPLE is a multiple award-winning author of many fiction and non-fiction books. In 2003 he received the Ernest Scott History Prize and the ARANZ Ian Wards award for his biography of the Wakefield family, A Sort of Conscience. In 2005 he received a Prime Minister’s Award for Literary Achievement and was appointed an Officer of the New Zealand Order of Merit for his services to literature.
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