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Quince, Khylee --- "Mana and Domestic Violence: D v Police" [1999] IndigLawB 91; (1999) 4(25) Indigenous Law Bulletin 10


Mana and Domestic Violence:
D v Police

D v Police

District Court of New Zealand (Kaikohe)

Unreported

Application for discharge

Everitt J

May 1999

by Khylee Quince

The Facts

According to my law dictionary, an acquittal is a deliverance or setting free from suspicion of guilt for an offence. ‘Acquittal’ is derived from the Latin ‘acquietara’ - to discharge, to keep in quiet.[1] A recent case in Northland, New Zealand, resulted in a discharge without conviction which, rather than being kept quiet, hit the headlines nationwide.[2]

In May 1999, prominent Maori political leader, D, was discharged without conviction for an assault against his former de facto partner, Mere Taurua. Kaikohe District Court Judge Thomas Everitt accepted the complainant’s claims that her former partner had hit her, splitting her lip and pushed her off a chair, resulting in bruising to an eye and a shoulder. She laid a complaint with Police on the day of the assault, but returned a day later and asked Police not to prosecute. Charges were laid however, and the woman testified against her partner of three years.

In discharging D under s 19 of the Criminal Justice Act 1985 (NZ) and granting him an order for name suppression, Judge Everitt stated that:

The courts do acknowledge and recognise [mana]. Mana is one of the concepts that is accepted, not perhaps 100 percent understood by non-Maori people, but it is understood sufficiently for me to say that I accept that a loss of mana by D will affect him personally and it will affect his people that he represents.

The Law

Section 19(2) states that ‘A discharge under this section shall be deemed to be an acquittal’. The Court's discretion to discharge without conviction pursuant to section 19 is unfettered, although it is generally seen as appropriate to apply it in circumstances of minimal culpability and substantial mitigation. It is often invoked for first-time offenders in order to avoid the stigma of conviction, although previous convictions are not a bar to discharging without conviction. Other circumstances where it has been deemed appropriate to discharge an offender without conviction include where the offence was relatively minor or results from health or emotional problems, was out of character for the accused, or would unduly affect their career prospects.[3]

In Stewart v Police,[4] Justice Smellie of the High Court outlined the matters to be considered by the courts in applying s 19:

(1) Irrespective of status as a student or otherwise, a person is entitled to have an application for a discharge without conviction properly considered on its merits;

(2) An application should not be rejected out of hand on the basis of any preconceived policy;

(3) The overriding criteria for the exercise of discretion is that there should be something exceptional about the offender or the offence. Other criteria to be considered are the seriousness of the offending, the age of the offender, the offender's previous record, and the likelihood of further offending. Also relevant are genuine expressions of contrition and any steps taken to make amends;

(4) Reasons should be given as to why a discharge without conviction is refused and reference should be made to the criteria to be taken into account.

The Court of Appeal stated in Police v Roberts[5]that,

[I]n the final analysis, after considering all the relevant circumstances, it is a proper exercise of the Court's discretion 'if the direct and indirect consequences of the conviction are, in the Court's judgment, out of all proportion to the gravity of the offence'. That must be the overriding consideration. The words 'out of all proportion' point to an extreme situation which speaks for itself.

Examples of cases where a discharge without conviction has been granted include minor shoplifting, intentional damage to property and possession of small amounts of cannabis for personal use.

However, it is unusual to see a discharge granted in circumstances involving assault or domestic violence. A first time offender was denied a s 19 discharge in respect of an assault on a female with whom he was in a domestic relationship in Fuller v Police.[6] In that case, the Court held that despite the accused’s voluntary attendance at an anger management course and the fact that there was no likelihood of further offending, the effects of the conviction could not be shown to be out of all proportion to the gravity of the offence. The Court similarly denied discharges to the defendants in G v Police,[7] a case involving inappropriate physical discipline by parents of their daughter, who was subsequently found living on the streets.

The High Court has often considered the character and standing of the defendant in determining whether or not to grant a s 19 discharge. The case law clearly indicates that the status of the accused will be only one of the circumstances to be considered in the matter as a whole. In some cases, the Court has stated that a privileged background and the benefits of education will not ensure more lenient treatment for the accused.[8] In other cases, it has confirmed that status in the community will not prevent the operation of s19 nor affect its ability to grant a discharge.[9] In other words, the Court will neither treat a defendant with favour due to their elevated standing in their community, nor will it impose more stringent responsibilities on those persons.

Analysis and Criticism

Having regard to these case authorities, the decision to discharge DD without conviction is remarkable and may be criticised on several grounds.

Domestic violence policy

First, it would seem highly unusual for a court to exercise its discretion to discharge without conviction in a case involving domestic assault. As a matter of policy, if not by way of statutory bar, a defendant should not be eligible for a discharge without conviction in circumstances involving violence in a domestic relationship, even where the complainant attempts to withdraw her complaint. It is common for victims of domestic violence to withdraw complaints under the guise of attempting to make amends with the offender.

Family violence is an expression of male power and control, and should not be seen to be tolerated by the justice system. From 1988 to 1997 convictions for charges of ‘male assaults female’ increased 168 percent in New Zealand. In 1998, 5054 men were prosecuted for domestic assault, while 1000 more faced less serious family violence charges. The statistics also demonstrate that the majority of Police call outs involve repeat offenders. A joint study of 166 cases of family violence conducted by the Police and the Children, Young Persons and Their Families Agency found that 42.5 percent were repeat visits. A disproportionate number of these cases involved violence within Maori families, with one study claiming that one in three Maori women has suffered domestic violence, nearly twice the rate for non-Maori.[10] This study reinforces the findings of the earlier Report of the Royal Commission on Social Policy in 1988, which found that the home was an unsafe place for many Maori women, as it was here that they suffered physical and sexual abuse at the hands of Maori and non Maori men.[11]

Tikanga Maori & Mana

The second ground of criticism for the decision is to be found in tikanga Maori (Maori law/custom). In DD’s case, Judge Everitt saw fit to comment on a matter of tikanga as he thought it applied to the offender, without referring to the victim or community in the same context.

Some commentators see a link between the disintegration of the traditional whanau (extended family) structure, reduced awareness of tikanga and increased violence towards Maori women. Violence is a violation of the inherent tapu (sacredness) of a woman both as a descendant of the atua (gods), as whare tangata (the houses of humanity) and as the bearers of future generations. This violation upsets the emotional, spiritual and physical balance within the woman herself, and also within her community.[12]

The decision to discharge D may also be critiqued in terms of mana. Mana is the enduring and indestructible power of the gods and is often translated as power, prestige and authority.[13] One of the major nuances of meaning of mana is mana tangata - the mana of humans. This is the power of individuals to acquire knowledge and develop skills in particular areas. This type of mana may be inherited or earned.

Persons with mana are responsible for caring for our people in a physical, spiritual or cultural sense, and of being the public face of our whanau, hapu and iwi (extended family, sub-tribe and tribe respectively). The collective whanau, hapu or iwi communities rely on their rangatira (leaders) with mana to provide effective leadership and an example to others.

Mana is therefore a dynamic process in that it will increase and decrease according to the actions or inactions of the person. It is not self-imposed and to try and give yourself mana diminishes what you already have - which is known as whakamanamana.[14]

Interestingly, the issue of mana was raised in D’s case by Judge Everitt, not by the defendant himself. This raises the issue of non-Maori purporting to apply concepts of tikanga but doing so inappropriately and incorrectly. Kathie Irwin, a Maori female academic, has stated that men of different cultures in Aoteoroa bond to each other through patriarchy in ways which exclude Maori women.[15] The actions of Judge Everitt and D may provide a clear instance of this process. Yet it is ironic that Judge Everitt’s statement did more to diminish D's mana than to protect it.

It has been stated in other contexts that for indigenous women, their oppression by race has been compounded by their oppression by gender. One of the major impacts of colonisation in Aotearoa is the acceptance of the coloniser culture, which prescribes a subservient role for women in relation to their husbands. This imbalance is in stark contrast to the role and status of women in tikanga Maori. In the context of violence against women, this is particularly disastrous. The acceptance of the model of a nuclear family has marginalised the role of the whanau in domestic relations as protectors of their female members. What goes on between husband and wife in the home is now often viewed as private, and beyond the interference of the extended family.[16]

Responses from Maori Communities

The order to suppress the defendant’s identity

The Maori community was united in its opposition to the suppression of D's name. One of the fundamental principles of Maori dispute resolution is munakore, or non-confidentiality. The reciprocal nature of relationships between people and their interconnectedness to the natural world means that the community must be informed of any physical or spiritual weakness amongst its members in order to identify and restore the imbalance created by that weakness. Thus, D’s case also highlights the difference between the Pakeha justice system and Maori systems of dispute resolution.

Briefly, the resolution of such a dispute in accordance with tikanga Maori has several objectives. First, there is the identification of the dispute and the perpetrator. By this, we mean the identity of the collective family or community which the individual identifies with. Maori people operate within a framework of whakawhanaungatanga (intra and inter family relationships), so a dispute is also identified as a collective issue - so that it is a collective who is the offender and it is a collective which is the victim. The personal tapu (sacredness) of the individual has been affected, and the offence has also harmed the collective mana and whakapapa (genealogy/descent lines) of both parties. Traditionally, an offender would be respected for their acknowledgement of offending, and their willingness to deal with it in a manner prescribed and discussed by the community as a whole.

Second, the process of dispute resolution aims to address the imbalance created by the offence, by way of utu (recompense). This is achieved by discussion (te whakawhitiwhiti korero) on a marae (meeting house) as to the impact of the offending and the acceptance of responsibility. This process of consultation concludes with a consensual decision as to appropriate penalty.

Finally, the penalties imposed for traditional disputes were flexible according to the circumstances of the offence and offender. As recently as the 1920s, the mistreatment of a Maori woman by her husband was soundly condemned by the community. In one instance, the husband's people were required to pay 5000 pounds to the wife's family, an enormous sum of money at the time. Further, the children of the marriage were handed over to the wife's whanau and the marriage deemed at an end. In another case, the abusive husband was declared ‘dead’ by the wife's family, and treated as such by both them and his own family for his misdeeds.[17]

None of these kawa (protocols) were present in D's case. The lack of responsibility shown by the offender lead to swift reaction and condemnation by the Maori community.

Judge Everitt’s use of the concept of mana

Many high profile Maori were quick to dispel any misunderstanding that the case was one which warranted ‘protection’ of mana. Tuariki John Delamere, the Member of Parliament for the Eastern Maori seat, Te Tai Rawhiti, called Judge Everitt ‘a patronising idiot...who has done incredible damage to the concept of mana’. He further said that Everitt had ‘belittled and insulted the people of Kaikohe, the people of Te Tai Tokerau and all Maori. Judge Everitt has endorsed the concept of violence in the home as something that is acceptable’.[18]

Kaumatua (elders) of the D's Ngapuhi iwi (tribe) were also critical. Graham Rankin said that D ‘should never have concealed his identity. It was always going to come back to haunt him.’[19] Similarly, kaumatua Sir Graham Latimer stated that he was always taught ‘that there was nothing more cowardly than hitting a woman’. [20]

Reaction in the Pakeha legal community was more subdued. Noel Cocurullo, the Northland representative for the Auckland District Law Society, defended Judge Everitt, as did then Acting Chief District Court Judge Russell Johnson, who stated the Judge ‘weighed the damage to the defendant's standing and the role he performs for his people, if convicted, against the seriousness of the offence committed.’[21]

The decision of the Court in exercising its discretion to discharge Dick Dargaville without conviction in relation to a domestic assault is an important one. It indicates the success of colonisation in the oppression of Maori women and of the usurpation of tikanga Maori in the resolution of disputes. It is also evidence of the unequal position of women as a whole in the New Zealand legal system, and the acceptance of violence in the home.

One of the groups which made submissions to the Royal Commission on Social Policy more than a decade ago sounded a warning which has, apparently, not been heard:

the cost of protecting [Maori abusers'] covert actions through our women's aroha [love] for them and our shame of people knowing, is the physical and mental health of our women and children[22]

The decision in D’s case is an unsafe one that fails to protect those the laws of Aoteoroa/NZ purport to protect.

Me aro ki te ha o Hineahuone
Pay heed to the essence and dignity of women

Khylee Quince is a Ngapuhi/Ngati Porou woman and Lecturer at the School of Law,

University of Auckland.


[1] Mozeley & Whiteley, Law Dictionary (11th ed, 1993).

[2] The author has written this case note without reference to the Court file of the matter, which was not released, despite request. The note is written on the basis of the press releases surrounding the case, which quote the sentencing remarks made by the Judge. The case is not cited in any of New Zealand's case reporters to date, and therefore has no formal citation.

[3] Hall's Sentencing Guide D/214.

[4] (1989) High Court, Dunedin. Noted at 12 TCL 28/4.

[5] [1991] 1 NZLR 205 at 210.

[6] (1998) High Court, Wellington. Noted at BCL 598.

[7] (1994) High Court, Auckland. Noted at 17 TCL 20/12.

[8] See for example Sloane v Police (1990) High Court, Hamilton (noted at 13 TCL 40/6), where the Court dismissed an appeal against sentence imposed on a student convicted against social welfare benefit fraud.

[9] See for example Walker v Police (1993) High Court, Rotorua (noted at 16 TCL 22/6), where the Court exercised its discretion to grant a s 19 discharge to a Police officer found in possession of 25 grams of cannabis.

[10] These were the results of an unnamed study as reported in the New Zealand Herald 21 April 1999, 5.

[11] Royal Commission on Social Policy, Report Vol III (1988) 153.

[12] Jackson M, ‘Criminality and the Exclusion of Maori’ (1990) 20 VUWLR 23, 28.

[13] Cleve Barlow, Tikanga Whakaaro - Key Concepts in Maori Culture (1991) 61-2.

[14] P Hohepa and DV Williams, The Taking Into Account of Te Ao Maori in Relation to the Reform of the Law of Succession A Working Paper for the Law Commission 1994, 14.

[15] Irwin, above n 17.

[16] Mikaere A, The Balance Destroyed (Masters of Jurisprudence Thesis, University of Auckland, 1995) 153.

[17] Ibid, 55.

[18] New Zealand Herald, 16 July 1999, 4.

[19] New Zealand Herald, 15 July 1999, 3.

[20] Ibid.

[21] Ibid.

[22] Raukawa, above n 12.


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