The Heitia Case *

 Judge James L. Rota, District Court, Hamilton

 Introduction

 Maori continue to claim that differences exist.  The claims are increasing in frequency, in volume and insistence - some say sovereignty and separate justice system; some say a different system in another place; some say this system but by my peers; some cry but submit.  But all say “Vengeance is not the way”.  Where is the dignity?  Where is the care?  Where is the listening and responding in the context of what matters - surely effective remedy is there.  Justice done where justice is, elevates the human spirit and is a justice of a more excellent kind.  The call for marae justice is simply a call to go where justice is.

 I base my comments on this subject on my personal views and experiences.

 Task

I will discuss “Marae Justice” within the context of the case of Police v Heitia. That case is notable for many features, a discussion of which may assist in understanding in such cases of-.

 (i)                  who it is that is calling

(ii)                why the call

(iii)               why the insistence

(iv)              the nature of quality of the call for “Marae Justice”

 (v)        the justice merits suggested in the call.

 That discussion might illustrate a wisdom which if applied in the correction process, could well give keys to effective remedy.

 Nelson Heitia

 Heitia was charged with serious crimes of violence towards his children.  He pleaded guilty.  As he presented for sentence, so did many from his Raglan community, young and old.  They asked if they could take him back to Raglan to be dealt with in the Maori way.  Ultimately on sentencing, they did.  The factors of the case though, clearly showed that in the range of usual sentencing options, imprisonment was appropriate.

 It was heralded in the media for good and evil, as the first “Marae Justice” case.  That was not accurate, but that is another story.  His community programme was eagerly accepted.  His community tried.  Heitia failed.  He was ultimately given an alternative sentence.

 We might ask:  Who were his community? Some might say the indigent waste-class. A look at history will explain who.  They were his whanau - close and distant, related by whakapapa, as close as they felt.  They were all of modest or no income.  A remnant people.  The kaumatua came in support.

Why the call for Marae Justice?

 Some say the easy option.  Others say-

·         Whakapapa, the pain of experience, and the Maori view of life is the motivation.

·         Increased confidence found in being Maori.

·         Economic strength.

      ·         Current processes do not meet Maori expectations of restoration,

    ·         Belief in the need, in the face of current failures, to apply the Maori way.

      ·         The essential part that the community context must play in effective remedy.

 Why the Insistence on Marae Justice?

 Some call it defiance, others say:

·         Recognition of an increased sense of identity as Maori, and of the

capacity of those who are Maori to heal their own.

    ·         An increase in strength and confidence, along with a greater willingness

            to challenge, and an unwillingness to defer

       ·         Grievance and conviction driven.

     ·         Increasing intolerance at isolation from the existing judicial processes

           ·         Continued failure in effective acknowledgement of cultural differences.

The Quality and Justice Merits in the Call for Marae Justice.

 Some say there are no such merits but merely an avoidance of consequence and cultural division.  Others say insecurities and fears and the designs of crafty men notwithstanding, real justice, justice that is accurate, motivates the human spirit.  That justice is only to be found in reckoning with issues in context, amongst those who might best point to where justice in the case might be found - at the centre of what is relevant and valuable, where feelings change and errant conduct goes away.

What is that context?

 Some say its a physical place.  Others say it may be, but more so it is an approach, a matter of application of features of the Maori way, the balance of features of value. Those features include the following concepts-

Whakapapa

 The unchangeable and pivotal feature of personal place and envelopment, and unconditional love - the resultant feature of whakapapa.  The Maori is his community - they can never give up.

Ko te Amorangi ki Mua ko te Hapai ki Muri

 (In all matters the emblem of things spiritual must be in the vanguard.  Those things of a temporal kind will follow as a consequence).

Separate the Offender from the Offence

 Affirm the offender - damn the offence, all people are good people, some just do bad things. To change what a man does, there must first be a change in what a man feels All offending is feelings motivated or based. Pay attention to the feelings issue first - the conduct issue will go away.

 Peel Back the Overlays of Hurt

 Listen.  Hear the grievances of the otherwise inarticulate.

 He Who Has Nothing, Has Nothing to Lose

 Build the mana of the person.  Give him his dignity.  In that, he will find something to lose. Reprove proportionally and appropriately, but always with an increase in caring.

 It is proposed, albeit in general terms, that the application of these features, in balance, in the context of what is of value in the community of the offender and within what is perceived by him to be just, will result in a justice that works - to motivate, to restore.

What is Marae Justice then?

 It is changing or at least broadening our philosophy of what is just, and pursuing that justice wherever it is to be found.  That might be in a physical place.  It might be within a perception. There must be opportunity for those served by justice, to say where justice is.  Justice done there is justice in truth.

 Those who call for a different way surely must mirror the concerns of us all.  Vengeance is only destructive.  The different way sought by Maori is said to involve the power of unconditional love, and an understanding of the true nature of offending - that errant conduct is merely a symptom of the condition of the heart. In the treatment of offending we must first look to the heart, and refuse to be deterred by the conduct. With patience we must attend to the feelings, and the conduct will go away.