Taueki v Police - [2013] NZHC 1710

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2013-454-16 [2013] NZHC 1710

BETWEEN PHILIP DEAN TAUEKI Appellant

AND

POLICE Respondent

Hearing: 28 June 2013

Counsel:

S Price for Appellant
M G Wilkinson for Respondent

Judgment:

5 July 2013

JUDGMENT OF THE HON JUSTICE KÓS

[1] An appeal against conviction on a charge of disorderly behaviour1 arising from a protest demonstration. It is said that the District Court Judge misdirected himself as to whether personal abuse is capable of protection under the New Zealand Bill of Rights Act 1990. Further, that he reached findings of fact, particularly as to the likelihood of Mr Taueki’s protest causing violence to erupt, that cannot be sustained on the evidence.

Background

[2] On a Saturday morning in September 2012 the appellant, Mr Philip Taueki, and six supporters went to conduct a protest demonstration at the opening of the Te Takere cultural centre in Levin. A stage had been set up outside the centre. A powhiri was to begin at 9.00 am. Mr Taueki and his colleagues were disappointed that their whanau had not been recognised in the opening process. And they objected also that an historic waka, found near Lake Horowhenua in Muaupoko lands, was to
be displayed at the centre, along with other taonga. This they considered deeply

1 Brought under s 3 of the Summary Offences Act 1981.

TAUEKI v POLICE [2013] NZHC 1710 [5 July 2013]

disrespectful. Mr Taueki and at least some of his supporters are members of the Muaupoko iwi. One of the prosecution witnesses, Mr Kuiti, accepted the group had “some good issues”. Albeit he deprecated its methods.

[3] Mr Taueki’s protest was vociferous. So was that of at least one other member of the group, a Mr Peter Heremia. Both seem to have picked out a Mr Brenton Tukapua. He was a member of the Muaupoko Tribal Authority, and part of the official party on the stage. At one point, before the powhiri began, Mr Tukapua came down off the stage to upbraid Mr Heremia. A fourth man, Mr Perry Warren, who was with Mr Tukapua, stood between him and Mr Heremia. Mr Warren and some other members of the official party persuaded Mr Tukapua to return to his seat up on the stage area. The ceremony then got under way.

[4] There were four police officers present. One or more of them warned the protesters (including Mr Taueki) against engaging in personal abuse. The protesters by and large ignored that advice. But people on the official stage stood around its fringe in a way that “blocked off” the protesters from being seen. Plainly, they could still be heard.

[5] Nothing much then happened for a further six minutes until, after another piece of vociferous abuse from Mr Taueki, he was arrested by Sergeant Bull for disorderly behaviour.

Decision appealed

[6] In a very thorough judgment, the District Court Judge first set out the evidence of the principal witnesses. Those for the police were Mr Kuiti,…

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.

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Details

Case: [2013] NZHC 1710
Decision Date: 5 July 2013

CaseChat Overview and Summary

The case of Taueki v Police involved an appeal against a conviction for disorderly behaviour arising from a protest demonstration. The appellant, Philip Dean Taueki, argued that the District Court Judge misdirected himself on several points of law and fact. The appeal raised questions about the protection of personal abuse under the New Zealand Bill of Rights Act 1990, the likelihood of violence occurring, and the presence of police officers at the protest. The High Court found that the District Court Judge erred in concluding that personal abuse was not capable of protection under the Act. However, the Court also found that the appellant failed to demonstrate that the District Court Judge could not have been satisfied beyond reasonable doubt that he was guilty of the offence charged. The Court concluded that the evidence was insufficient to support a finding that the appellant's behaviour was likely to cause violence. The appeal was allowed, and the conviction was quashed.

The final orders of the Court were that the appeal be allowed, the conviction be quashed, and the matter be remitted to the District Court for resentencing. The Court also noted that substituting a conviction under a lesser offence may be prejudicial and that the appellant's conduct did not clearly cross the threshold for unlawful public expression.

Orders