Taueki v Police

[2014] NZHC 1831

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2014-454-000008 [2014] NZHC 1831

PHILIP DEAN TAUEKI Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	5 August 2014
Counsel:	Appellant in Person D R Davies for Respondent
Judgment:	6 August 2014

JUDGMENT OF RONALD YOUNG J

[1]      Mr Taueki   was   remanded   in   custody   after   being   declined   bail   on

15 April 2014 relating to a number of criminal charges.  Subsequently he applied for electronically monitored bail on 15 May 2014.  That application was granted. About a week later Mr Taueki made an application to the District Court to vary his bail conditions effectively asking that the EM Bail be cancelled.  That application was refused.  This appeal relates to that refusal.  The important point, however, is that Mr Taueki says that he should have been granted bail (with some conditions) but that electronically monitored bail was neither necessary, appropriate or justified by a

circumstances.

TAUEKI v NZ POLICE [2014] NZHC 1831 [6 August 2014]

[2]      Mr Taueki now faces, as relevant, three sets of charges:

(a)      the Kemp Street incident on 22 March 2014 where he is charged with intentional damage; two of male assaults female and assault with a weapon;

(b)      the  Horowhenua  Rowing  Club  incidents  on  26–28 March 2014;

charge is intentional damage and burglary; and

(c)      post arrest Rowing Club charges on 28 March 2014; escaping from custody; possession of cannabis; possession of utensils for smoking cannabis; possession of utensils for smoking methamphetamine and receiving stolen property.

[3]      Mr Taueki has pleaded not guilty to all charges.  His Judge alone trial will be many months away.  In addition, Mr Taueki was recently awaiting a decision from the District Court after a Judge alone trial on charges of possession of an offensive weapon and disorderly behaviour.

[4]      Mr Taueki appeals the District Court Judge’s decision on the basis that the electronically  monitored  conditions  are  unreasonable,  excessive  and  punitive because he:

(a)      cannot work or receive a benefit and is defaulting on some of his automatic payments (although he is now in receipt of a benefit);

(b)      is totally reliant on his bail host to complete everyone activities; (c)   cannot complete community work sentence that he is subject to;

(d)cannot  attend Treaty settlement  negotiations  in  his  capacity as  an advocate for a claimant;

(e)      cannot attend to his commitments relating to the Lake Horowhenua joint working party;

(f)      cannot prepare for legal matters where he is self represented; and

(g)his is not a risk of failing to appear in court or of interfering with witnesses or of offending while on bail.

[5]      Mr Taueki  was  originally  refused  bail  and  been  granted  electronically monitored bail because:

(a)      there was a risk he would fail to appear in court; (b)      there was a risk he may interfere with witnesses; (c)      there was a risk he might offend while on bail.

[6]      The first bail decision was 15 April 2014.  The District Court refused bail to Mr Taueki.  The Judge concluded that Mr Taueki would not be prepared to obey any conventional bail conditions.  And so he was likely to reoffend if given bail and was unreliable in terms of his reporting.

[7]      The decision granting Mr Taueki electronic bail was given some three weeks later.  On 11 June 2014 the matter came back to a Judge.  That Judge concluded that as  far  as  Mr Taueki  was  concerned  there  was  little  flight  risk,  little  chance  of offending while on an electronically monitored bail and a reduced opportunity to interfere with witnesses.  He said he was therefore disposed to grant the application for electronic bail.

[8]      The Judge also took into account the significant time that Mr Taueki would have spent in custody if the remand had been in custody rather than on electronic bail.

[9]      Finally, a few days later Mr Taueki applied to vary EM bail by cancelling the order.   The Judge refused the application to cancel electronically monitored bail. There was no change in circumstance.

[10]     After discussion with Mr Taueki I am satisfied he understood that the real appeal issues as to whether or not electronic bail was appropriate, was to consider the traditional bail risk issues.  That is, was there a risk he would fail to appear in court?  Was there a risk he would interfere with witnesses?  And was there a risk he might offend while on bail?  If there was a substantial risk of any of these, would EM bail reduce that risk to an acceptable level?

[11]     If there were no recognisable risks as identified then it would be difficult to justify electronically monitored bail.  I, therefore, consider each of the risk factors.

[12]     First, risk of failing to appear in court.   There appears to be some dispute about whether or not there have been warrants issued for Mr Taueki’s arrest recently when he failed to appear in court.  The prosecution say that has happened on four occasions, Mr Taueki says once when he mistook the day and time.  In any event, no bail breaches have been certified.

[13]     Mr Taueki says that he is enthusiastic about defending these charges and showing that he is right.   Thus he will ensure that he turns up for court.   I am satisfied that there is little risk that Mr Taueki will fail to appear in court even if the timing of his attendance might be somewhat unreliable.  He has a deep commitment to the area and is unlikely to abscond.

[14]     Risk of interference with witnesses.  There is a suggestion that Mr Taueki has previously confronted and attempted to intimidate witnesses.   This is said to have arisen at the Kemp Street incident.1     It is difficult to deal with these allegations because the Mr Taueki disputes the claim of interference or indeed any criminal conduct in this context.  I cannot say, therefore, that interference with witnesses is established.  In any event a non association provision associated with bail should be

sufficient.

1      At [2](a).

[15]     There is no evidence, therefore, of intimidation.   It is clear that a volatile situation has occurred at Lake Horowhenua between Mr Taueki and users of the lake and that this is behind much of the trouble there.  Bail conditions may be able to be imposed to limit such conflict.

[16]     Offending while on bail.  Mr Taueki does have long history of offending but much of it goes back to the 70s, 80s and 90s and is now effectively historic.  He has three convictions for offences committed while on bail.  He has 16 convictions since the year 2000.  He has not been sentenced to imprisonment.  Since 2000 his most intrusive sentence has been community work.  That illustrates most of his offending is at the low end of the scale albeit a nuisance.   There is no real evidence that Mr Taueki will therefore offend while on bail.   If he does offend it is likely to be mostly nuisance type offending.

[17]     Mr Taueki has provided me with a list of over 20 offences which he says he has been charged with in the last few years and says that he has not been convicted of any of these charges.  He says this illustrates the unfair approach of the police.

[18]     Mr Taueki is a confrontational person where he considers his rights have been breached.  He is firm in his conviction that his rights have been constantly breached and that the police have unfairly arrested him  when others have trespassed and committed crimes against him.

[19]     It is not possible for me to sort out or know the truth of all of these matters. But I have tried to tell Mr Taueki today that whatever the rights and wrongs of his position, he must avoid confrontation.   If that requires him to walk away from a volatile situation even where he thinks he is in the right, then he must do so.

[20]     I am satisfied that there were not legitimate grounds to remand Mr Taueki in custody  and  I  am  satisfied  accordingly  that  the  imposition  of  electronically monitored bail was not necessary to meet the three factors particularly relevant to bail for the reasons that I have set out above in this judgment.

[21]     I record that I have warned Mr Taueki that if he breaches the bail conditions that I now set he can expect a remand in custody until trial.  He has had the clearest warning from me that there must be no further confrontations.

[22]   For the reasons given, therefore, the appeal against the imposition of electronically  monitored  bail  is  allowed.    The  order  requiring  Mr Taueki  to  be subject to electronically monitored bail is quashed.  Instead I reimpose the original bail terms; Mr Taueki is to reside at Lake Domain, Queen Street, Levin.  He is not to contact  directly  or  indirectly  any  of  the  witnesses  currently  proposed  to  give evidence  in  support  by  the  prosecution  with  respect  to  all  charges  Mr Taueki currently faces before the District Court.   Those witnesses would include the following:

(a)       Sandra Williams;

(b)      Henry Williams; (c)      Matt Sword;

(d)      Chris Lester; (e) Helen Hanson; (f)       Joanna Mason;

(g)      Andrew Dealing; (h)     James Watson;

(i)       John Tait; and

(j)       Joshua Royal.

Ronald Young J

Solicitors:

Ben Vanderkolk & Associates, Crown Solicitors, Palmerston North