Police v Taueki - [2016] NZHC 3098

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2016-454-000023 [2016] NZHC 3098

BETWEEN
NEW ZEALAND POLICE

Appellant

AND

PHILIP DEAN TAUEKI Respondent

Hearing:
12 October 2016

(Heard at Wellington)

Counsel:

F J Sinclair and F G Biggs for Appellant
Respondent in person
A Hunt - McKenzie Friend

Judgment:

16 December 2016

JUDGMENT OF ELLIS J

I direct that the delivery time of this judgment is
11 am on the 16th day of December 2016

NEW ZEALAND POLICE v TAUEKI [2016] NZHC 3098 [16 December 2016]

[1] Mr Taueki is a well-known and passionate advocate for the care and preservation of Lake Horowhenua (the Lake) with which he feels a strong ancestral connection. His passion and his style of advocacy has caused him to be in a more or less permanent state of conflict with the Horowhenua Domain Board (the Board), local residents and the Council and, more recently, the Lake Horowhenua Trust (the Trust). The bed of the Lake, and much of the land surrounding it, is Māori freehold land, known as Horowhenua Block XI. Horowhenua Block XI is owned by the Trust. Mr Taueki is a beneficiary of the trust and (accordingly) a beneficial owner of the land.

[2] In the latest chapter of this conflict, Mr Taueki was served with a trespass notice, warning him to stay off certain buildings situated on Horowhenua Block XI. He was subsequently arrested and charged with trespassing in contravention of that notice, under s 4 of the Trespass Act 1980 (the TA).

[3] Judge Moss in the District Court dismissed the charge. Her basis for doing so was that the trespass notice was invalid because it had been issued by the Board, and the Board was not an “occupier” of the land as required by s 4 of the TA. Thus (she said) the Board could not lawfully warn Mr Taueki to stay off the land. The finding of invalidity was fortified by the Judge’s concerns about the absence of a written resolution by the Board approving the issue of the trespass notice and about the authority of the person who served it on Mr Taueki to do so.

[4] The Police subsequently sought leave under s 296 of the Criminal Procedure Act 2011 to appeal Judge Moss’s decision on three questions of law. Mr Taueki then sought leave to appeal on a single question that, in a sense, responded to the three Police questions. On 2 August 2016 Brown J granted leave to appeal on all four. This judgment is concerned with answering each of them.

[5] The approved Police questions are:

(a) was the District Court correct in law to hold that the Domain Board cannot issue a trespass notice because it is not an “occupier” for the purpose of s 4 of the Trespass Act 1980?

(b)was the District Court correct in law to hold that Mr Taueki could not be the subject of a valid trespass notice because of the rights reserved to the owners of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Police v Taueki

Details

AGLC: Police v Taueki [2016] NZHC 3098
Case: [2016] NZHC 3098
Decision Date: 16 December 2016

CaseChat Overview and Summary

In Police v Taueki, the High Court was required to determine whether the District Court was correct in dismissing a charge of trespass against Mr Taueki. The Court was asked to consider the validity of the trespass notice issued by the Domain Board and whether the Board had the authority to issue such a notice. The Court found that the Domain Board was indeed an "occupier" of the land for the purposes of the Trespass Act 1980, as it exercised control over the land as required by the Reserves and Other Lands Disposal Act 1956. The Court also determined that the rights of the Māori owners under s 18 of the ROLDA did not preclude the Board from issuing the trespass notice, as the notice was reasonably necessary to protect the reasonable rights of the public. Furthermore, the Court concluded that there was adequate evidence of the Domain Board's resolution to issue the trespass notice and that the person who served the notice was duly authorised to do so. The Court dismissed Mr Taueki's question about the nullification of the Treaty of Waitangi, stating that the Court's jurisdiction was derived from the exercise of Parliament's legislative powers and not the Treaty. The High Court quashed the District Court's decision and remitted the matter for retrial.

Orders