Fragile Foundations: The Application of Criminal Law to Crimes Committed in New Zealand between 1826 and 1907

By David Collins

The arrival of Europeans in Aotearoa brought about an inevitable clash between the laws and values of Maori societies and those of the newcomers.Like a subduction zone between two tectonic plates, each pressing against the other, this clash led to ruptures, often with long-term consequences. This ground-breaking book examines a series of notable criminal trials in order to understand how the indiscriminate application of English criminal law in New Zealand during the 19th century shaped the landscape of contemporary society.These trials partially explain why Maori continue to be adversely affected by this country' s criminal justice system, and also expose the punitive way in which English criminal law was applied during the pre-colonial and colonial eras a trait that is never far from the surface of modern New Zealand society.

• Language: English
• Publisher: Te Herenga Waka University Press
• Release date: May 9, 2024
• ISBN: 9781776922369

David Collins

David Collins is one of the UK’s most respected investigative reporters. In 2011, he became the youngest journalist in the history of the British Press Awards to win News Reporter of the Year for helping police convict the serial killer Levi Bellfield for the murder of Milly Dowler. He joined the Sunday Times as an investigative reporter in 2015, joining the Insight team. He is currently northern correspondent for the Sunday Times based in Manchester.

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Copyright © David Collins 2024

First published 2024

This book is copyright. Apart from any fair dealing for the purpose of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without the permission of the publishers.

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ISBN 978-1-776-92135-5 (print)

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A catalogue record is available from the National Library

of New Zealand.

This book is published with the assistance of a grant from the Michael and Suzanne Borrin Foundation.

Ebook conversion 2024 by meBooks

In memory of my parents

Valmae (Joy) Collins

11 April 1929–11 January 2016

Brian Alfred Collins

1 December 1927–26 March 2018

Contents

Acknowledgements

Foreword

Introduction

Part One – The Precolonial Era

1 A Question of Jurisdiction

2 Captain Stewart Evades Justice

3 Edward Doyle Pays the Ultimate Price

4 A Tragic Death at Preservation Inlet

5 The Precolonial Era Draws to a Close

Part Two – An Infelicitous Foray into Rapid Assimilation: The First Prosecutions of Māori Under English Laws

6 The Establishment of the Crown Colony

7 Early Forays in the Application of English Criminal Law to Māori

8 A Ready Obedience to the Laws and Customs of England

Part Three – The Imposition of Martial Law and the Prosecution of Māori for Treason

9 Martial Law During the Crown-Colony Period

10 The Court-Martial Trial of the Paripari Prisoners

11 The Court-Martial Trials in Whanganui

12 Grey’s Failure of Statesmanship

13 The Treadmill of Treason Trials

Part Four – Applications of the Law of Insanity

14 The Test for Insanity

15 The Intriguing Trial of ‘Old Cranky’

16 The Tormented Rowland Edwards

Part Five – Malicious Criminals

17 A Punitive and Puritan Society

18 The Execution of Joseph Burns and Transportation of Margaret Reardon

19 Murder on the Sacred Mountain

20 A Contentious Legacy

21 The Trial of Thomas Hall and Margaret Houston

22 Thomas Hall is Saved from the Gallows

23 Winton’s Baby Farmer: The Nefarious Minnie Dean

24 The Arrest and Trial of Minnie Dean

25 The Shadow

26 A Beacon of Justice and Hope: The Trial of Walter Tricker

27 Conclusions

Select Bibliography

List of Illustrations

Index

Acts and Ordinances

Cases

Acknowledgements

This book would not have been possible without the continuous love, encouragement and support of my family, and in particular my wife Teresa Quirke Collins, my children, Brittany and Richard Collins, and their partners, Nick Rodgers and Zoe Harris Collins.

Many colleagues and friends assisted with the research required to prepare this book. In particular, a succession of clerks and academic friends provided invaluable support when I was researching. I would particularly like to thank Helen Bennett, Tessa Vincent, Jamie Tocher, Vicki Squires, Yang Li, Caccia Armstrong and Tara McGoldrick, who clerked for me during the course of writing this book. They all contributed to its publication. Professor Shaunnagh Dorsett and Professor Kristyn Harman helped with research, while my judicial colleagues, Judge Bill Hastings and Justices Sir Joseph Williams and Sir Stephen Kós, were kind enough to read sections and drafts.

The Michael and Suzanne Borrin Foundation provided a generous grant to enable this book to be produced.

Fergus Barrowman and Anna Knox at Te Herenga Waka University Press and Daisy Coles of Coles and Lopez provided invaluable guidance and support. They strived to enhance the book’s quality and are not responsible for any shortcomings in the final product.

Finally, my Associate, Edith Cotton, typed every word and gracefully floated upon the tidal changes that were constantly made. I will always be grateful for her dedication and professionalism.

David Collins

Wellington

March 2024

Foreword

Justice David Collins was an admirable, and much-admired, colleague when I was President of the Court of Appeal: clear-thinking, fast and generally correct.¹ His efficiency was such that his reserved judgments list was a source of embarrassment to the rest of us. So I gave him the time-consuming task of list Judge for intractable appeals. Soon that list, too, diminished, and motion was again detected in cases that hitherto had frozen stiff. Even that extra responsibility failed fully to occupy my friend, for towards the end of my tenure he unexpectedly produced a lengthy manuscript on nineteenth-century criminal justice in New Zealand, a subject that greatly interested us both. But he was the one who undertook the research and wrote it down. Goodness knows how he found the time, but I am very glad he did.

The motive force behind this interesting and accessible account of the subject comes from its closing whakatauki: Inā kei te mōhio koe ko wai koe, i anga mai koe i hea, kei te mōhio koe kei te anga atu ki hea. If you know who you are and where you are from, then you will know where you are going.

Precolonial and colonial New Zealand was a loose conglomeration of three peoples: Māori (whose outlook was more tribal than national), adventurers (whalers, sealers, foresters and their ilk, who were here for what they could get before returning whence they had come) and settlers (here to stay and longing for a new nation, a sort of better Britain, that was yet to emerge). In this fractured context, the dominant challenge faced by nineteenth-century criminal justice in New Zealand was that of competence.

Starting with jurisdiction: Britain had claimed New Zealand, but it was but two or more sea-girt islands far from home, not yet a Crown colony, and largely populated by Māori who were not yet British subjects to whom the Murders Abroad Act of 1817 applied. Whose law then applied when Kite, slave to a hapū within the Ngāpuhi rohe, murdered Henry Biddle at Hokianga Harbour in 1838?² Ngāpuhi handed Kite over to Pākehā authorities (such as they were) and consented to his trial by a mixed jury of settlers and Ngāpuhi chiefs. The execution of Kite was undertaken by Ngāpuhi in accordance with the jury’s verdict. The process was irregular, and may indeed (as the author suggests) have been blatantly illegal by English law. Yet it may also have been perfectly legal by Ngāpuhi tikanga. Precolonial New Zealand was bijural after all.³

Incompetence of a different kind marred the understanding and respect for English law in the mid-nineteenth century. The resources with which to inform and enforce the law were extracted painfully from a miserly Colonial Office, and the abilities of some of those responsible for its administration were weak. Who would willingly have exchanged places with Kent and Kendall, the first-appointed Justices of the Peace, expected to achieve peace by personality with little more? Higher up the tree was Busby, the British Resident, his personality memorably described by Dr McLintock: ‘Without the saving grace of humour and regarding his office with the utmost gravity, he embellished himself with all the trappings of a public bore.’

That description was a good fit, too, for Mr Justice Johnston, who features regularly in this book. In the trial of Walter Tricker for murder (1864), Johnston repeatedly harrumphed about the fact the Crown was represented by one counsel only, which would place undue pressure on the Judge (it is hard to see how). In summing up to the jury he commended the principal Crown witness as apparently honest – this being a man who had surely lied in identifying Tricker. Combined with the deficiencies of the defence in failing to explode the Crown’s case theory – which had Tricker riding a sweatless horse 35.5 kilometres over difficult terrain in forty-five minutes, an impossibility – an innocent man was nearly hanged. Yet, as the author shows, in the absence of effective appeal rights, justice for Tricker was justice very much delayed and entirely the result of the campaigning zeal of a concerned clergyman.⁴

Johnston had his counterpart in Mr Justice Stephen, who had a passion for transportation, but it was not all bad. In July 1854 the estimable Henry Barnes Gresson, a considerable Chancery practitioner and soon-to-be Supreme Court Judge responsible for the South Island, arrived with his family at Lyttleton. The fledgling Canterbury legal profession looked forward not only to Gresson’s arrival, but also that of his substantial law library. As was customary, passengers walked over the Port Hills, while their baggage went round by sea, over the Sumner Bar. Over the hills went Gresson and his family, but into the Sumner Bar went the schooner carrying the baggage, and the library was lost.⁵ Colonial legal practice involved making do with little in the way of resources, even if the participants were capable (which very many were not).

All this came at a cost to criminal justice. As the author observes, the traits of caprice and arbitrariness were never far from the surface when English criminal law was applied in New Zealand in the nineteenth century. Fragile foundations bring with them a prevailing sense of insecurity when the law is not easy to enforce (and, perhaps, to understand). As the author demonstrates, deterrence as a motivating punitive policy assumes greater force when those driven to criminality are desperate, those willingly assuming it are confident they will not be captured, and those who are the victims of crime have limited confidence in gaining redress. It was Catherine the Great who very wisely observed, ‘The most certain curb upon crimes is not the severity of the punishment, but the absolute conviction in the people that the delinquents will be inevitably punished.’

We live in better times now. Better-resourced and more enlightened law enforcement and administration of criminal justice, effective rights of appeal and the implementation of the New Zealand Bill of Rights Act 1990 are all curbs to arbitrariness and caprice. But our colonial legacy, driven by insecurity, is buried not deep beneath us. We may not suffer the torments of unregulated gun ownership in this country, but this splendid book offers a valuable reminder as to why we should never again tolerate – as we did in 2010 – a law which seemingly compelled an intellectually impaired man to be sentenced to seven years’ imprisonment without parole for kissing a stranger on the cheek.⁶

– Sir Stephen Kós

1 That is to say, he and I usually agreed.

2 See chapter 5.

3 See, for example, Shaunnagh Dorsett ‘Two Laws’ in John Burrows and Jeremy Finn (eds) Challenge and Change: Judging in Aotearoa New Zealand (LexisNexis, Wellington, 2022), chapter 1.

4 See chapter 26.

5 Nicholas Gresson Every Sign of Life (Quentin Wilson, Christchurch, 2022) at 144.

6 Fitzgerald v R [2021] NZSC 131, [2021] 1 NZLR 551; and see chapter 27.

Introduction

At 6.15 pm on 23 September 1869, Mr Justice Alexander Johnston resumed his seat on the bench of the Supreme Court at Wellington.¹

At the time, the Court was situated in a courthouse at the southern end of Lambton Quay, which had been opened with much pomp and ceremony in September 1863. Prior to then Johnston had ensured his court was held in the impressive Provincial Government Building, in Molesworth Street. The Judge had taken the unusual course of presiding in a building created for the legislative branch of government because, upon his appointment, aged only thirty-eight, Johnston had learnt that the Supreme Court was conducting its proceedings from a modified room at Barrett’s Hotel on Lambton Quay. He had, according to the Wellington Independent,² been ‘perfectly horrified at the want of respect for the dignity of the law, which such a state of things evinced’ and so he promptly arranged to hold his court in a building he thought more befitting of his status.

A later commentator observed of Johnston that ‘he upheld in a determined manner the high traditions and lofty tone of British justice’.³ He demanded that lawyers treat him with respect, although he did not always reciprocate, often belittling counsel appearing before him by describing them as inferior to lawyers in England.⁴ Johnston was described as a ‘precocious Scot’ and ‘a stout pompous man upon whom dropsy had laid its mark’.⁵

On that Thursday evening, in his typically authoritative manner, Johnston commanded the Registrar of the Court to receive from the jury its verdicts in relation to the three prisoners before him. The charges alleged that Mātene Te Karo, Hetariki Te Oikau and Rewi Tamanui Totitoti had committed treason by participating in attacks led by Te Kooti Arikirangi Te Tūruki (Te Kooti) against Pākehā communities and Crown forces near Tūranganui-a-Kiwa (Gisborne).

The jury had deliberated for just fifteen minutes. The foreman announced that it had found each of the prisoners guilty.

Johnston listened to a plea of mitigation from one of the prisoners, but his explanations did not deflect the Judge from imposing the most barbaric sentence known to English law. He summoned the court crier, and instructed him to approach the bench with the black cap.⁶ This having been placed atop his court wig, Johnston then sentenced the prisoners. He told them they were to be ‘drawn on a hurdle to the legal place of execution, and there be hanged by the neck until you are dead; that your heads be then severed, and your bodies be divided into four quarters, to be disposed of as His Excellency the Governor directs’.⁷ Johnston, we may surmise, revered the majesty of the law he administered perhaps more than the deeds they commanded; the important thing was that this dreadful sentence rang out across his courtroom, familiar and feared, its traditional form having been used to inflict terror in the hearts of generations of prisoners. He did pause, however, to reassure the three prisoners they were only likely to be hanged.

He then beseeched Almighty God to have mercy on their guilty souls.⁸

Stories of criminal trials like the one Johnston presided over in 1869 help us to understand how the indiscriminate application of English criminal law in New Zealand during the nineteenth century shaped the landscape of our current society. They partially explain why Māori continue to be adversely affected by this country’s criminal justice system. The trials in this book expose, again and again, the punitive way in which English criminal law was applied to Māori during the precolonial and colonial eras. The pressure of that application varied in its depth and intensity, if not in its ultimate purpose, which was to establish where the true power lay, as our ‘bicultural’ nation developed. At times, it generated significant social upheaval.

Unfortunately, the violent history this book explores, and the forces that shaped that history, are not far from the surface of modern New Zealand society.

‘Criminal law’ in pre-European society: tikanga Māori

When Europeans began to arrive on New Zealand’s shores in the years that bridged the eighteenth and nineteenth centuries, social structures and systems of law were already firmly established in this country, among the Māori who had been at home here for centuries. Early Europeans encountered indigenous societies that revolved around whānau, in which collective rights and responsibilities prevailed over those of the individual. Traditional Māori society reflected Polynesian social structures, under which wrongdoers were judged in the context of their family relationships. 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.

Viewed through early Pākehā eyes, Māori social structures, laws and customs appeared ill defined and difficult to translate into European concepts. The challenges for Europeans in understanding Māori society were compounded by the oral tradition of te ao Māori. When combined with the artful advocacy of Māori leaders, this created many opportunities for misunderstanding and confusion on the part of those settlers who wished to understand the ways of Māori.⁹

When Europeans began to trade with Māori, the social units of Māori began to orientate around hapū, the basic political and economic unit within Māori society.¹⁰ Through economies of scale, hapū were able to produce timber, flax, food and taonga such as mokomōkai (preserved heads) in exchange for blankets, tobacco, muskets and axes. In addition to providing social leadership through their own chiefs, hapū provided the infrastructure for fighting units during the Musket Wars of 1807–1842.

The notional leadership of a hapū usually devolved to rangatira, supported by kaumātua. Ariki status was normally reserved for the most senior representative of a collective of hapū or even iwi. There was, however, ‘no neat hierarchy of kaumātua, rangatira and ariki’.¹¹ With limited exception, Māori society was egalitarian and not hierarcichal.¹² Francis Fenton, the first Chief Judge of the Native Land Court, wrote:¹³

No system of government that the world ever saw can be more democratic than that of the Māori. The chief alone has no power. The whole tribe deliberate on every subject, not only politically on such as are of public interest, but even judicially they hold their ‘komitis’ on every private quarrel. In ordinary times the vox poppuli determines every matter, both internal and external. The system is pure pantocracy, and no individual enjoys influence or exercises power, unless it originates with the mass and is expressly or tacitly conferred by them.

At the time New Zealand became a Crown colony, Māori society was regulated through a complex system of customs and laws that did not distinguish between civil wrongs and criminal offending.¹⁴ Although the term ‘tikanga’ is often used to describe Māori custom and laws, those concepts are not necessarily synonymous. No word in te reo Māori accurately represents either law or custom. ‘Tikanga’ derives from the adjective ‘tika’, meaning right (or correct) and just, or (fair). The addition of the suffix ‘nga’ renders tikanga a noun which, in this context, may be defined as ways of doing and thinking held by Māori to be just and correct, the right Māori way.¹⁵

Hirini Moko Mead explains aspects of tikanga in the following way:¹⁶

Tikanga embodies a set of beliefs and practices associated with procedures to be followed in conducting the affairs of a group or an individual. These procedures are established by precedents through time, are held to be ritually correct, are validated by usually more than one generation and are always subject to what a group or an individual is able to do . . .

Tikanga are tools of thought and understanding. They are packages of ideas which help to organise behaviour and provide some predictability in how certain activities are carried out . . .

In 2001, the New Zealand Law Commission summarised the concept of tikanga Māori as ‘a spectrum of values at one end and rules at the other, but with values informing the whole range’.¹⁷ More recently, the Law Commission explained that tikanga:¹⁸

is the set of values, principles, understandings, practices and norms and mechanisms from which a person or community can determine the correct action in te ao Māori. Tikanga has long been recognised as having the character and authority of law and ‘continues to shape and regulate the lives of Māori as it always has’.

Underpinning tikanga are interconnected Māori concepts and values that include whanaungatanga, mana, tapu, utu and muru.

Whanaungatanga, or kinship, was at the heart of traditional Māori society. ‘In traditional Māori society, the individual was important as a member of a collective. The individual identity was defined through that individual’s relationship with others’. Tikanga Māori emphasised the responsibility owed by the individual to the collective. ‘No rights endured if the mutuality and reciprocity of responsibilities was not understood and fulfilled’.¹⁹ The ‘rights of individuals, or the hurts they may suffer when their rights were abused were indivisible from the welfare of the whānau, the hapū, the iwi’.²⁰ Whanaungatanga has been described as a structural norm which, together with whakapapa, establishes a person’s connections ‘identity, status and the terms of relationships’.²¹

Mana was, and still is, integral to Māori concepts and leadership. It refers to the authority, control, status and obligations of those in authority, such as a rangatira. Mead notes that ‘personal and group relationships [in Māori society] are always mediated and guided by the high value placed upon mana’. Hence, mana concerns ‘the place of the individual in the social group’.²²

Of all the concepts that underpin tikanga, utu was particularly significant to those administrators responsible for the introduction of English criminal law to the new colony, when they were examining traditional Māori society. Utu, like many of the concepts that influence tikanga Māori, is a polysemic term. Researchers have identified ‘eleven different primary senses’ associated with ‘utu’.²³ At its most general level, utu traditionally involved the restoration of physical and spiritual relationships to an equal or harmonious state.²⁴ Utu was also a mechanism for facilitating the maintenance and enhancement of personal mana, or the mana of one’s whānau, hapū or iwi. Where the mana of a rangatira was threatened, whānau, hapū or iwi were obliged to act against that threat. Similarly, where an opportunity arose for a rangatira to increase the mana of his tribe, he was obliged to do so. In such instances ‘utu provided the means of protecting mana’.²⁵

In some situations, the restoration or enhancement of mana after a breach of tikanga required an act of punishment or revenge. There were, however, a number of significant differences between the concept of ‘punishment’ as understood by colonial administrators and the concept of ‘utu’ as understood by Māori. Those differences have been summarised in the following way:²⁶

Although both punishment and utu involve a deliberate response to an offence or injury and aim to achieve retribution or repayment, they differ in important respects. Effectively speaking, punishment can be forgiven, but utu cannot; punishment should be unpleasant enough to deter, but utu may be entirely friendly and welcome; punishment should be confined to offenders who have been proven guilty of intentional offences, but utu may be extracted from individuals who have done no wrong. The aims of punishment are complex and contentious, but the aim of utu can be seen as more straight forward – utu is essentially a mechanism for restoring lost mana.

Tikanga Māori was dynamic, and evolved to meet new circumstances. This fluidity helps explain regional variations in tikanga, and why the application of tikanga might result in different forms of utu being administered for the same types of transgressions. The mana of those affected was another significant factor in determining the nature of utu.

Muru, which may be defined as the ‘ritual redistribution of wealth as compensation/punishment for an offence’,²⁷ was an integral feature of traditional Māori society which took place among groups of people linked by whakapapa or marriage. Although muru normally involved redistribution of property and items of value, in extreme cases it could involve the ‘hostile . . . taking of payment for crimes by plundering or destroying property, [thereby] wiping out offences’.²⁸

Administering justice in traditional Māori society tended to be a largely communal affair, in which all interconnected parties were afforded the opportunity to play a role in resolving grievances. One early European official described traditional Māori society as resembling ‘a democracy, limited by a certain amount of patriarchal influence’.²⁹ While tribal leaders would invariably be involved in significant cases of utu, the question of who would be involved in any particular case would depend on the nature of the transgression and the status of those involved. Thus, the decision as to what utu would be carried out was not made by an independent arbitrator. In ‘almost all cases a decision to punish would be partial’.³⁰

Just as a wider community may have been viewed as victims of an offence committed against an individual, so too could an offender’s whānau or hapū be punished for that offender’s wrongdoing; the more serious the wrong, the wider the kin net that became hooked into the compensation equation. Equally the victim was not just the individual involved but his or her kin group, the parameter for which was set by the status of the victim and the seriousness of the wrong.³¹ Utu and muru were interwoven aspects of whanaungatanga.³²

Utu and muru, when administered as a form of punishment or revenge, hinged on the nature of the offence or transgression that had been committed and the degree to which mana had been undermined by the offending. Thus, the intentional killing of a rangatira or immediate member of his family would normally result in the death of the perpetrator and many members of his or her whānau.³³

Aspects of utu and muru appeared arbitrary and barbaric to colonial administrators, but Māori also viewed with consternation many punishments meted out under English criminal law. Writing in 1835, the missionary William Yate said that Māori were appalled at the European method of executing criminals:³⁴

First telling them they are to die; then letting them lie for days and nights in prison, to think over what is to happen to them; and then leading them slowly to the gallows, and keeping them waiting some time at the foot of it, before they are hanged . . . this [Māori] say ‘is more cruel than anything we do’.

Māori were not just concerned about the inhumanity of European methods of execution compared to the usually swift forms of administering death under their own Māori law and custom. European views as to what constituted an offence worthy of punishment were also sometimes at odds with tikanga. By way of illustration, New South Wales Governor Philip King in 1805 hosted the northern rangatira Te Pahi,³⁵ and recorded that the Māori chief was distraught when he learned that a prisoner was to be executed for stealing pork from the military storeroom at Port Dalrymple. Te Pahi endeavoured to reason with the Governor ‘on the injustice of slaying men for stealing pork’.³⁶ From the perspective of traditional Māori, a person should not be punished, let alone executed, for stealing food to assuage their hunger. Te Pahi’s disgust reflected the Māori belief that resources such as food should be widely distributed, particularly among whānau.

Thirty years later, Yate noted that in Māori society ‘theft, if persevered in, is sometimes visited with the severe blow from a stick or paddle across the head’.³⁷ Chief Justice Martin recorded a similar observation following a visit to Taupō in 1844, where Te Heuheu, the paramount chief of Ngāti Tūwharetoa, told him, ‘if a man were to dare to take one of my wives or my greenstone adze, I should kill him of course, at once, but if he steals little things I take no notice’.³⁸

A significant feature of traditional Māori values that endured long after the process of colonisation commenced was the rejection of transportation and imprisonment as punishments for offences such as theft. For Māori, the curtailment of an individual’s liberty was abhorrent.³⁹ This was particularly so for those Māori of high standing, who viewed these punishments as gross affronts to their mana. In traditional Māori society, some saw incarceration and separation from whānau as more egregious than being put to death. It must have been perplexing for Europeans to hear Wahu, a Māori chief imprisoned for theft in 1843, plead that he be executed rather than suffer the indignity of incarceration.⁴⁰

Nineteenth-century English criminal law

The story of the precolonial and colonial periods in New Zealand is predominantly the story of English criminal law being imposed upon the people living in New Zealand, Māori and Pākehā alike.

At the time New Zealand was colonised, English criminal law had evolved from various customs which reflected ‘the general social and moral assumptions of [early Britain], or even the natural instincts of mankind at particular stages of development’.⁴¹

Prior to the Norman invasion, the basis of English criminal law migrated from communal to personal authority, and, in particular, the concentration of legal authority in the name of the King. This was the beginning of a constitutional theory that justice was the prerogative of the Crown. The focusing of the source of English criminal law upon one authority stood in sharp contrast to the communal way in which traditional Māori society developed and administered punishments for transgressors.

By the nineteenth century, English criminal law comprised a series of structured legal concepts that made up the common law and a wide range of statutes. Treatises such as Sir William Blackstone’s Commentaries on the Laws of England, first published in 1769, provided a useful explanation on the laws of England. In addition, law reports were beginning to provide access to precedent and therefore a degree of certainty in the way criminal law was interpreted and applied.

Always at the epicentre of English criminal law was the desire to hold a transgressor personally accountable and the desire that punishment not only reflect personal accountability but also serve as a deterrent against others committing the same or similar offences.

Chapter 9 explores the Native Exemption Ordinance 1844, which was a short-lived attempt to ameliorate for Māori some of the effects of English criminal law. Apart from those efforts, English criminal law was substantially replicated in colonial New Zealand up until the passing of the Criminal Code Act 1893.

The passage of that Act was significant in our legal history. It represented a key departure from the wholesale adoption of English criminal law statutes, procedures and common law rules. It consolidated the laws and procedures governing indictable offences, which largely corresponded to what the common law referred to as felonies, into a single statute. Indictable offences were distinguished from the less serious summary offences, which generally were called misdemeanours at common law. In England, there had been several unsuccessful attempts dating back to 1833 to codify its criminal law. Those efforts culminated in Sir James Fitzjames Stephen preparing a draft criminal code bill, which was reviewed and redrafted in 1880 by a Commission of which Stephen was a member (Stephen’s Code).

The efforts in England to codify that country’s criminal laws had ended in 1880. In New Zealand, however, a committee comprising Justice Johnston and the Solicitor-General, Mr Walter Reid, prepared a report that recommended New Zealand enact legislation substantially based on Stephen’s Code.⁴² New Zealand was not the only jurisdiction to follow this course. Canada adopted Stephen’s Code in 1892. Queensland, Western Australia and Tasmania adopted it in due course.

Flaws in the foundations

The imposition of English criminal law involved certain forces that broadly applied across the entire time period that is the focus of this book. Certain aspects and effects of those forces continue to be felt today. These forces included the precarious assertion by the Crown of its authority over its subjects in precolonial New Zealand; the indiscriminate application of English law, particularly to Māori, during the periods in question; the punitive way in which English law was applied to some offenders; and a series of blunders by colonial administrators and judges, a number of whom lacked the skills to administer justice.

An assertion of authority

During the precolonial period, authorities in London initially eschewed asserting legal and political control over New Zealand. At the same time, however, they took a number of steps to try to impose English law upon British subjects who committed criminal offences in New Zealand.

English officials in the early 1800s were loath to add New Zealand to the Crown’s estate. This standpoint was largely driven by the sheer cost that would be entailed in successfully colonising what, for those in England, were the remotest lands on Earth. There was also a view in London that trade between New Zealand and New South Wales was best left to private enterprise.

Even so, certain factors came into play that would seal New Zealand’s fate, including increasing settlement, increasing trade, the activities of the Church Missionary Society, a fear among English settlers and Māori that France would claim sovereignty in New Zealand, pleas from the United Tribes of Aotearoa for British protection, the defiant activities of the New Zealand Company and the ineffectiveness of the British Resident in New Zealand. These were all milestones in the steady march towards New Zealand becoming a Crown colony.

The longer the Crown refrained from asserting political and constitutional control over New Zealand, the more apparent its inability to assert legal control over its subjects became. By 1839, however, the tensions inherent within the prevailing British policies were nearing a resolution.

The benefits of adding New Zealand to the Crown’s dominions began to crystallise when the New Zealand Company set out to establish privately owned settlements in Wellington, Nelson, New Plymouth and Whanganui. The hefty cost of adding New Zealand to the Crown’s estate was mitigated by first making New Zealand subject to the administration of the colony of New South Wales, which bore the brunt of many of the expenses involved in establishing New Zealand as a Crown colony. Those arrangements lasted until 3 May 1841, when New Zealand became a Crown colony administered by officials appointed by the Colonial Secretary, who were answerable to the Colonial and War Office in London (the Colonial Office) for the manner in which they governed New Zealand. In the absence of a Parliament to pass statutes, Ordinances were issued by a governor. It was through this process that New Zealand’s first English-style courts and criminal law procedures came into being. Early Ordinances, mainly drafted by William Swainson, New Zealand’s second Attorney-General, were often reviewed by officials in the Colonial Office to make sure the new laws complied with that Office’s expectations. Those officials included Sir James Stephen, whose son would later draft Stephen’s Code.

The establishment of New Zealand as a Crown colony ended the inherent tension of the Crown attempting to assert legal control over its subjects in New Zealand without also asserting legal and political control over these islands.

‘All men before the Law are alike’

From the point at which it became clear that English law was to apply in New Zealand, colonial authorities and judges assured Māori that they would be treated under English law in the same way as Europeans. For example, in 1858, Governor Gore Browne directed Francis Fenton to publish a book in te reo Māori, explaining English criminal law and procedures. The book stated in its opening pages:⁴³

All men before the Law are alike. There is one Law for all, Maori or Pakeha, white skin or black. And it is false to say that by submitting to the Law any man is humiliated, whether Pakeha or Maori. On the contrary, by submitting to Law, and by upholding the Law, a man protects his own dignity, for it is the Law which recognises and secures his rights. The Law is his safeguard by whose protection he will be secure of his life, liberty, and happiness.

Regrettably, those promises had often been dishonoured prior to publication of Fenton’s book, and they would continue to be dishonoured. Māori were frequently the victims of misapplications of English criminal law. Underpinning these injustices was an inherent sense of infallibility on the part of a number of officials, including judges, who were responsible for the application of English criminal law in New Zealand. Governor George Grey’s dubious declarations of martial law in the Wellington and Whanganui regions in 1845 and 1846, discussed in Part 3, illustrate this concern, as does Governor Sir George Bowen’s 1869 authorisation of the execution of Hamiora Pere for treason.

While Māori were by far the largest cohort of victims of the misapplication of English criminal law during the periods covered by this book, they were not the only victims, as demonstrated by the comparative lenience afforded to Lionel Terry, the sinophobic white supremacist who murdered Chinese immigrant Joe Kum Yung in Wellington in 1905.

The indiscriminate application of English criminal law during our early history is further exposed by the way in which colonial courts applied the law of insanity. Two cases discussed in this book expose conflicting early approaches. The first is the trial of Te Wātene for the murder of his wife, Kahiwa Te Pūoho at Wakapuaka near Nelson in May 1858. Te Wātene was found not guilty by reason of insanity, although the medical evidence fell considerably short of satisfying the law’s requirements. Many features of Te Wātene’s case are difficult to reconcile and his trial is somewhat of an anomaly, contrasting markedly with the many instances in which Māori bore the brunt of arbitrary applications of English criminal law. In contrast, the prosecution of Rowland Edwards for the murder of his wife at Ormondville on 10 February 1884 illustrates how parts of European society had little tolerance for outsiders. Edwards, who was an alcoholic, was convicted and executed in circumstances where a more careful application of the test for insanity may have led to a different outcome.

Heinous crimes, hard labour and hangings

In light of modern legal thinking, the application of English criminal law during the precolonial and colonial eras seems disproportionately punitive. While the crimes committed were heinous, the punishments meted out were often barbaric. This was consistent with the standards of British justice at the time.

The murder of Lieutenant Robert Snow and two members of his family on the northern shore of the Waitematā Harbour provides an example. Snow’s murderer, Joseph Burns, was taken to the gallows after being paraded in the back of a cart through central Auckland. He was then taken by a 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.

Most of those criminals whose trials this book examines were, in their final moments, led to wooden gallows, where their hands and legs were pinioned and a cloth bag placed over their heads before a hangman secured a rope around their necks. A prayer would be said for the condemned prisoner before the bolt securing the trapdoor was released. Some suffered excruciating deaths. One prisoner, Charles Marsden, reportedly gasped for breath for fourteen minutes after the trapdoor had been released. Another, Thomas Kelly, twisted and convulsed after dropping through the scaffold floor, his death only being achieved after the hangman applied his weight to Kelly’s struggling torso. Of the eighty-three prisoners who were executed before New Zealand abolished capital punishment for murder, in 1961, fifty-nine were hanged during the colonial periods, between 1840 and 1907. Over that time, five Māori were hanged following illegal military trials and another, Kite, was executed following an unlawful trial on the shores of Hokianga Harbour in 1838.

Other prisoners were also punished harshly. Margaret Reardon, Joseph Burns’ partner, was transported to Van Diemen’s Land for having committed perjury in her efforts to assist Burns.⁴⁴ As a consequence, she was permanently separated from her two young children. Prisoners in colonial gaols were routinely flogged; others were sentenced to long periods of imprisonment with hard labour.

There was a belief among Europeans who settled in New Zealand that a harmonious society could only be forged if Māori and settlers alike rigidly obeyed the criminal laws of England. It was thought that transgressors needed to be treated harshly. The punitive features of many of New Zealand’s criminal law policies today echo the way English criminal law was applied in this country during the nineteenth century.

From the earliest days of the Crown-colony period, European settlers advanced the theory that they reflected the finest virtues of English society. They did not hesitate to draw contrasts between settlers in New Zealand and the convicts who had been transported to the penal colonies of Australia. This standpoint was challenged when authorities in London began a programme of relocating to New Zealand juveniles who had been convicted of minor criminal offending in England, and who had been placed in the Parkhurst juvenile prison. This process began in 1842; it was designed to provide the boys with a new life in New Zealand. British colonists threw up their hands in horror; in discussing the situation, an editorial in the New Zealand Gazette and Wellington Spectator piously proclaimed that it was the duty of all settlers ‘to see that New Zealand is not turned into a bed for the seed of vice and crime’ and to work to avoid the fate that had beset New South Wales and Van Diemen’s Land.⁴⁵

Errors of judgement

Nineteenth-century judges like Johnston, the ‘precocious Scot’, tended to have an implacable belief in the infallibility of the new settler order and the rightfulness of their own decisions, and this too played a part in the development of our early criminal law.

Appointment as a judge to the colony of New Zealand is unlikely to have been viewed as a stellar achievement by members of the law professions of the United Kingdom. Even so, some of those appointed to the Supreme Court of New Zealand proved to be enlightened and successful judges. William Martin, in particular, was an exceptional Chief Justice. Many, though, lacked both the legal acumen and the temperament that would have made them successful judges in this unique and challenging environment.

Those lawyers who sailed to New Zealand to take up judicial appointment landed in a country with uncertain social and economic prospects. Underpinning the challenges facing colonial judges were deep-seated questions about how the English regime should accommodate Māori. Some colonial judges saw Māori ‘as savage, uncivilised and doomed to extinction. And saw the law as one of the means by which that outcome would be hastened’.⁴⁶

The appointment of Sidney Stephen as a judge of New Zealand’s Supreme Court in 1850 illustrates how some early judicial appointments in New Zealand were the product of political and social patronage. Stephen was a scion of one of England’s most influential legal families; one among many of his illustrious relatives later drafted Stephen’s Code. Apparently, Stephen’s forthright opinions and disagreeable attitude led him into a dispute with the Chief Justice of Van Diemen’s Land that ultimately resulted in him being held in contempt of court and disbarred. Five years later, the Privy Council overturned the findings made against him: ‘By way of compensation for personal and professional loss resulting from his disbarment, an appeal was made to the Colonial Office on Stephen’s behalf for suitable employment’.⁴⁷ It was in this way that Stephen was appointed to fill the next vacant position on the Supreme Court of New Zealand. His appointment scuttled efforts being made by Governor Grey to promote William Swainson from Attorney-General to the Supreme Court bench.

Many errors were made by judges in the cases examined in this book.

In 1887, the Court of Appeal controversially quashed the murder conviction of the well-connected Thomas Hall. The judgment of the Court of Appeal, written by Johnston, was profoundly illogical. It soon became the subject of strident criticism by senior judges in New South Wales.

Johnston also presided over the the trial of Joseph Sullivan for his role in one of five murders on the Maungatapu saddle in 1866. Sullivan’s trial was grossly defective, because half the members of the special jury that decided his guilt had, the week before, been exposed to damning statements made about Sullivan in the trial of Richard Burgess, Thomas Kelly and Philip Levy, who were also convicted of four of the Maungatapu murders. The statements and evidence in question were not admissible in Sullivan’s trial, and yet half of Sullivan’s jury heard statements and evidence which damned him. He should not have been tried by any of the jurors who had sat on the trial of his co-offenders.

The summing up of Justice Joshua Williams in the trial of baby farmer Minnie Dean in 1895 illustrates how some judges in colonial New Zealand harboured a deep-seated conviction that juries could not be trusted to reach the right verdict. The Otago Daily Times reported that ‘his remarks were evidently directed with the distinct object of counteracting any influence that the speech of the learned counsel for the defence might have expected, to excite on the minds of the jury in determining them to come to an erroneous conclusion’.⁴⁸

The errors in the trials of Dean and Sullivan did not lead to unreasonable verdicts. The same cannot be said, however, about the mistakes in the trial of Walter Tricker for the murder of Robert Rayner near Bulls in September 1863, examined in chapter 26. Justice Johnston’s summing-up to the jury in that case was marred by his flawed understanding of the facts, and his directions to the jury that they could safely accept the evidence of a crucial Crown witness whom, it was later established, had lied. Tricker would have been executed were it not for a tireless crusade on the part of the Reverend Arthur Stock, which stands out as a beacon for the pursuit of justice in colonial New Zealand. While Tricker avoided the gallows, he did not receive a full pardon until 7 July 1891. The twenty-eight-year delay in achieving justice for Tricker was due to the persistent reluctance of authorities to acknowledge that Johnston had been responsible for a grave injustice in Tricker’s trial.

The three periods

This book focuses on the application of English criminal law in three distinct periods of New Zealand’s history: the precolonial era; the Crown-colony period, from 1840 to 1854; and the period from 1854 to 1907 in which the colony of New Zealand was substantially administered by its own responsible government, following the passing of the New Zealand Constitution Act 1852.⁴⁹ In 1907, New Zealand became a Dominion. By that date, the criminal law of New Zealand had been substantially codified, although the country’s judges continued to rely extensively on English case law to interpret and apply the New Zealand criminal law.

The precolonial era

The first encounters between Māori and Pākehā in New Zealand were between English mariners and Māori, and saw a number of the latter killed by Captain James Cook’s men, supposedly pursuant to English criminal law. The Englishmen had thought that Māori were attempting to steal items of their property. At its most basic level, this involved the application of English notions of the law of theft to a people whose concept of property ownership was vastly different.

The killing of Te Rakau at Gisborne on 9 October 1769 is likely to have been in response to a member of the local iwi attempting to take a sword that belonged to William Monkhouse, the Endeavour’s surgeon. Similarly, when the Endeavour was anchored at Te Whanganui-a-Hei (Mercury Bay) on 9 November 1769, a young Māori man took some cloth belonging to Lieutenant John Gore, who responded by shooting the young Māori man dead. Joseph Banks, the botanist aboard the Endeavour, wrote that the victim’s life had been ‘forfeited to the laws of England’.⁵⁰ When the Endeavour entered the southern reaches of Tīkapa Moana-o-Hauraki (the Firth of Thames), Gore had another young Māori man whipped for stealing a half-minute glass. According to Banks, this was greeted with approval by members of the local iwi.

The first formal attempts by the British Crown to assert legal authority in New Zealand can be traced to 1814. By then, several hundred Europeans were living in New Zealand, mainly in Northland. Some had escaped the penal colonies of Australia. Others were engaged in trade, and in particular the extraction of timber and the harvesting of flax, and some were involved in the exploitation of seals along New Zealand’s coastline and the whale populations offshore. The trading of basic European items such as blankets and axes in exchange for pigs, potatoes and sexual services added to the incentives for British, American and French sailors to visit New Zealand’s shores during the years that straddled the end of the eighteenth and the beginning of the nineteenth centuries.

The Government of the United Kingdom knew of the trade between Māori and Europeans in New Zealand in the first decades of the nineteenth century. It was also fully aware of the conflicts that occasionally erupted and the losses of life that ensued, including, for example, the deaths that occurred following the destruction of the Boyd in Whangaroa Harbour in December 1809. Nevertheless, the United Kingdom maintained an air of indifference towards New Zealand and its peoples at this time, and steadfastly resisted the prospect of colonisation.

Concerns that some Europeans in New Zealand considered themselves beyond the reach of English law led to the appointment of Thomas Kendall as a justice of the peace for New Zealand by Major-General Sir Lachlan Macquarie, then Governor of New South Wales. At the same time, the Governor issued an order to try to regulate the transportation of Māori upon ships trading between New Zealand and New South Wales. These measures comprised the first tentative steps towards imposing British legal regulation upon British subjects inhabiting and visiting New Zealand. Both were ineffectual.

These statutes endeavoured to establish jurisdiction for Courts of Vice-Admiralty and the Supreme Court of New South Wales to hear and determine criminal charges against British subjects who committed serious offences in New Zealand and elsewhere. Those measures, too, proved to be unworkable when the Supreme Court of New South Wales was persuaded to quash the conviction of Alexander McDowall, who had previously been found guilty of causing grievous injury to Alexander McClaren aboard the Rosanna in September 1826, when it was anchored in the Firth of Thames. When liberating McDowall, the Supreme Court of New South Wales ruled that it did not have the jurisdiction to hear and determine charges against British subjects who committed grave criminal offences in New Zealand.

It continued to prove very difficult to prosecute British subjects for offences committed in New Zealand during the precolonial era. Edward Doyle was the only British subject successfully prosecuted before the Supreme Court of New South Wales during this period. Doyle was convicted and executed for an attempted murder at Ōmata, in the Bay of Islands. Many others charged with committing serious criminal offences in New Zealand during this time avoided any accountability for their wrongdoing. In particular, the failure by prosecuting authorities in Sydney to hold Captain John Stewart answerable for his role in facilitating the attack by Te Rauparaha and his followers upon a Ngāi Tahu village in Akaroa, and the murder of local chief Te Maiharanui and other Ngāi Tahu prisoners, caused consternation in legal and colonial administrative circles in England. That debacle played a pivotal role in the appointment of James Busby as the British Resident in New Zealand in 1833. Busby, who lacked any meaningful resources, also proved to be largely ineffectual in imposing English law upon