Justice David Collins sets out clash of cultures in book on NZ early criminal justice system

Not long after the Treaty of Waitangi was signed, the issue of whether the justice system treated Māori and Pākehā equally fairly was debated as fiercely as it is now.

Some of the early collisions between Māori tikanga and the English criminal justice system adopted by the new colony were so pronounced that special rules were devised to avoid sending Māori to prison.

The setting-up of the courts, the clashes, rules and the backlash are part of a book written by an insider in today’s justice system, Justice David Collins. A former Solicitor-General and a Court of Appeal judge, he officially retired in March but continues in an acting capacity because of the workload of the court.

The book, Fragile Foundations, which was launched last night at the Thistle Inn in Wellington by Chief Justice Helen Winkelmann, took Collins six years to write, over weekends and in the wee small hours of the morning.

As well as presenting a historical account of the early justice system, Collins casts a judicial lens across some infamous colonial cases and declares where judges have caused a miscarriage of justice, including with the so-called baby farmer Minnie Dean.

Justice David Collins.

“I’m not one who thinks Minnie Dean was innocent,” he told the Herald. “I don’t believe that but it was extraordinary how Joshua Williams summed up to the jury in that case.”

It removed any opportunity for her to be found guilty of manslaughter.

Some judges, such as Justice Alexander Johnston, were not temperamentally suited for life as a judge, he said.

“It comes through in the way in which he revered his own authority and believed he was completely infallible.”

He had been responsible for a miscarriage of justice in the murder case against Rangitīkei farmer Walter Tricker.

Other judges had been more enlightened, such as the first Chief Justice, William Martin.

Collins goes into great detail about a particular case of Martin’s in 1841, the first case of a Māori person to be heard by the Supreme Court, against a young Ngāpuhi man, Maketu Wharetotara, who was charged with murdering Thomas Bull on Motuarohia Island (also known as Roberton Island) - Mrs Roberton and three children were also killed.

The decision by Ngāpuhi chiefs to hand over Wharetotara to the European authorities was said by Attorney-General William Swainson to partially reflect Ngāpuhi’s acknowledgement that, through the Treaty of Waitangi, they had ceded sovereignty to the Crown.

But Wharetotara’s lawyer challenged the basis on which the case could be tried, saying the defendant had had no knowledge of English laws.

Whether Māori ceded sovereignty when they signed the Treaty of Waitangi in 1840 was a live issue at the time, particularly as the largely imported English criminal law began to apply to them.

So what is Collins’ view? After all that research, does he believe Māori knew they would be subject to English law?

“Some definitely did. Others were certain that they weren’t,” says Collins. “That’s an issue that we still debate today.”

In the debate by the colonial authorities about the Treaty, Attorney-General Swainson was starting to have a change of heart.

“He became more and more convinced that a lot of Māori did not surrender to English jurisdiction.”

In the book, Collins says the efforts to keep Māori out of prison were an acknowledgement of the abhorrence with which Māori traditionally viewed incarceration.

Among the cases recounted in the book is one of Te Wahu, who was sentenced in Wellington in 1843 to two months’ imprisonment with hard labour after a jury found him guilty of stealing clothing.

On hearing the sentence, he was reported to have asked to be killed with a tomahawk rather than suffer the loss of mana associated with imprisonment.

A sentence of two or three months was not harsh for the times. The judges came from a country where theft could you get you shipped off to Botany Bay in Australia for years with hard labour.

Another case in Auckland is about a chief, Te Mania, who was sentenced in 1844 to three months’ imprisonment with hard labour after being convicted of stealing a blue cloth cap from Graham and Wright’s store.

Such was the consternation over the sentence among the Māori present that they surrounded the dock and seized Te Mania, intent on preventing the ignominy of prison. They took him to the Ngāti Whātua settlement at Ōrākei.

Troops pursued him and a tense standoff ensued, but Te Mania was eventually persuaded to return to Auckland.

In a bid to address the Māori disquiet over the punishments under the colonial system, the governor of the day, Robert FitzRoy, and William Swainson devised the Native Exemption Ordinance, designed to keep Māori out of prison for some offences and to allow them to settle many of their own disputes.

The ordinance said, among other things, that in disputes involving Māori only, no warrant could be issued without the authorisation of the principal chiefs. It also said that where a Māori was charged with theft they could avoid imprisonment by paying four times the value of the goods.

“It was a strikingly enlightened measure,” said Collins. “But it attracted a lot of criticism from European settlers who thought Māori were being treated too leniently by the authorities.”

And it led to the downfall of FitzRoy in 1845.

“He was regarded as being too soft on Māori and that was what led to him being replaced by George Grey.”

In 1843, three years after the Treaty was signed, a couple of incidents in the Bay of Plenty involving Māori attacks on Māori prompted the acting governor, Shortland, to seek a formal opinion of Swainson about the courts’ sovereignty over Māori and then asked if all Māori were British subjects.

He replied, “as to those tribes who have never ceded sovereignty and who refuse to acknowledge the Queen’s authority, I think that Great Britain has not the right, nor would it be consistent with good faith, to impose upon them her penal code”.

The cover of David Collins' book published by Te Herenga Waka University Press.

Shortland rejected that analysis, as did the Colonial Office in London but the colonial secretary of the day, Lord Stanley, told Shortland in a letter that some Māori laws and customs might be able to be recognised and that “there is no apparent reason why the aborigines should not be exempted from any responsibility to English law or to English courts of justice” in their dealings with each other.

Collins says there have been flow-on effects from the colonial era to today.

“The way in which Māori continue to be disproportionately represented in this country’s prison population can in part be traced to the fragility of foundations of the criminal law set in the pre-colonial and colonial eras,” he writes. “It can, in particular, be traced to the submission of Māori to the yoke of English criminal law and the corresponding displacement of traditional Māori and social norms.”

So are the disproportionate numbers because they are treated worse than others in the system or because they offend more?

“If it is because they offend more, the question is why and the answer in part lies in the way Māori were treated during the colonial period,” he said.

“The process of colonisation resulted in Māori culture being suppressed, Māori land being taken and ultimately the disenfranchisement of Māori and that has echoes today.

“We are making strides to try to correct that imbalance but it is that background that produced the results we see in our criminal justice statistics today.”

He added, however, that things are improving, partly due to reforms such as Rangatahi Courts and Te Ao Marama in eight district courts which partner with iwi and community groups to deal with young offenders and a recognition of tikanga in mainstream courts and decisions.

“We have seen quite a significant drop in young Māori offenders,” said Collins.

“They understand the significance of their behaviour from a cultural perspective... young Maori offenders know they have offended their ancestors and that is quite a revelation.”

He did not know the full extent to which tikanga would develop in the courts “but if the trend continues, then one consequence of that will be a continued reduction in young Māori offenders”.

Fragile Foundations by David Collins (Te Herenga Waka University Press, $70).