Sir Duncan McMullin: Justice best served by the status quo

COMMENT

Statistics relating to crime make depressing reading. Those released recently disclosing the ethnic background of offenders make it even more so. They show that Maori are over-represented in prosecution and conviction rates for criminal offences, and that for the total number of cases resulting in conviction in 2001, 52 per cent of the offenders imprisoned were Maori.

These figures have led some Maori activists to claim there should be separate courts to decide the guilt of Maori charged with criminal offences and, where appropriate, the penalties for those offences.

There are a number of sound reasons such a claim should be regarded as untenable - except in the case of the Maori Land Court exercising its jurisdiction to determine disputes over Maori land and to decide the entitlement of the successors to that land and its partition between co-owners.

First, most offences by Maori are committed against Caucasians. This is not surprising because Caucasians outnumber Maori in the population statistics. It would be quite unreasonable to require a Caucasian, or any person of another ethnic group who is the victim of a crime, to submit to the jurisdiction of a separate Maori court just because the alleged offender was a Maori.

New Zealand is becoming increasingly multi-cultural. There are now 160,000 Asians in the Auckland area. There is no reason any victim of crime should be required to submit to any court having an exclusive jurisdiction over one ethnic group. This must be so whether the offence is murder, rape, burglary, theft, one involving drugs or any other.

Second, there is also the difficulty of defining a Maori. Should the definition be that in the Electoral Act? Should a person who has a mere one thirty-second or one sixty-fourth (these fractions are merely examples) qualify to be dealt with by an exclusive Maori Court? As the races intermarry, the blood of their offspring will become further diluted and the proportion of Maori blood in the alleged offender may become minuscule.

Third, a difficulty would be the probability, almost a certainty, that sentences imposed by a Maori court on a Maori would be out of parity with sentences imposed in a traditional court. The interests of justice are not served by the imposition of disparate sentences.

These factors show how unjust, unrealistic and impractical it would be to have separate courts for Maori offenders. The present system in which offenders of whatever race are tried either by a judge alone or by a jury should continue. Such juries almost always are composed of citizens of mixed races.

Offences committed by one Maori against another should be mentioned. There was a time when Maori charged with crimes against other Maori could elect to be tried by an all-Maori jury. (A Maori for this purpose was defined as one who was not less than half-caste). This had been the case for more than 100 years, but was rarely exercised.

There is only one case of which I know where a Maori elected to be tried by an all-Maori jury. That case was that of Rau, who was tried in or about 1959 by an all-Maori jury for the murder of his wife.

He had been convicted by a standard jury but the conviction was quashed by the Court of Appeal on the grounds of misdirection, and a new trial was ordered. He then applied for an all-Maori jury for his retrial.

This application was granted and a panel of Maori jurors was summoned. However, before the empanelment of the jury, the counsel for Rau made a challenge "for cause". Such a challenge can be made in any case where it is alleged that any juror is "not indifferent between the Crown and the accused".

At the request of the defence, the late Colonel Peter Awatere gave evidence that there were differences between some tribes, such that members of one might be prejudiced against members of another, notably the tribe to which Rau belonged.

Members of the jury panel were then questioned individually on their tribal affiliations and the possibility that some of them might not be able to reach a fair verdict. This procedure took up most of the day.

As a result of this exercise, the trial judge felt obliged to exclude some of the panel from sitting on the case, thereby reducing the number of jurors available to those not so challenged for cause. (While it is not germane to the present issue, on the retrial Rau was found not guilty of murder on the grounds of insanity.)

Rau's case was almost certainly the catalyst for the 1962 Juries Amendment Act. J.R. Hanan, the then Attorney General, said it was intended to abolish once and for all the distinction existing between Maori and other New Zealand citizens in regard to jury service and trial by jury.

The Prime Minister, Sir Keith Holyoake, said the effect of the act would be that "everybody will be New Zealanders and blood will not enter into the matter at all".

Sir Eruera Tirikatene, the MP for Southern Maori, said: "In bygone days tribal prestige and jealousies may have been reflected in decisions arrived at after consideration of the evidence in any trial. Whether that feeling still exists no one is competent to know; each spokesman can only give his personal opinion.

"However, since then Maori tribal organisation has changed; old animosities have been generally forgotten. Educated to Western ways, the Maori has had the benefit of the Pakeha's influence in discussions at meetings, and facts produced in evidence are now given prior consideration over emotional feelings arising from tribal differences."

It is fair to record that Sir Eruera expressed some reservations about the legislation later in the debate, but the act took effect from January 1, 1964.

Since then, all citizens of New Zealand have had their cases tried by juries selected regardless of race. The reasons behind the passing of the Juries Amendment Act are just as compelling today. Any move to create a separate system should be rejected.

Nothing I have said is intended to limit the reference to a range of factors relating to the offender and the offence to which the courts have recourse when imposing sentence. One cannot put a rubber stamp on the administration of justice by excluding factors which seem to be relevant to the presiding judge.

My argument is directed to the preservation of a system which is far more likely to ensure even-handed justice to the victim of crime and the offender than the establishment of separate courts for members of one race. Whatever our origins, we are all New Zealanders.

* Sir Duncan McMullin is a retired judge of the Court of Appeal.