Taueki v Police - [2012] NZHC 3598

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2012-454-32 [2012] NZHC 3598

PHILIP DEAN TAUEKI
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 17 December 2012

Counsel: Appellant in person
P L Murray for Respondent

Judgment: 21 December 2012

I direct that the delivery time of this judgment is 1pm on the 21st day of December
2012.

RESERVED JUDGMENT OF MACKENZIE J

[1] The appellant was convicted following a summary trial by Judge Ross in the Levin District Court on 9 October 2012 on one charge of assault under s 9 of the Summary Offences Act 1981 and one charge of threatening to injure with intent to intimidate under s 21(1)(a) of that Act. He was acquitted on two charges of addressing words with intent to insult. He was sentenced on 24 October 2012. A fine of $350 plus costs was imposed for the assault. On the threat to injure charge he was convicted and ordered to pay costs. He appeals against both conviction and
sentence.

TAUEKI V NEW ZEALAND POLICE HC PMN CRI-2012-454-32 [21 December 2012]

[2] The charges arose out of two incidents at Lake Horowhenua on 21 and

22 August 2012. On 21 August, Mr Tate, an off-duty senior constable, went to kayak on the lake. As he was preparing his kayak, the appellant drove up next to him. Words were exchanged between Mr Tate and the appellant. Mr Tate then went on the lake. While he was kayaking he saw the appellant approach another group of people, one of whom Mr Tate knew, a Mr Hughes. Mr Tate came ashore and videoed events on his cellphone camera. There was a verbal exchange between Mr Hughes and Mr Taueki. The verbal exchanges formed the basis of the two charges of addressing words with intent to insult, one in respect of Mr Tate and the other in respect of Mr Hughes.

[3] The second incident occurred the following day, 22 August. Mr Tate went to the lake again with another person, Mr Taylor. Mr Taylor was confronted by Mr Taueki who addressed words to him, and there was a scuffle between them. Mr Taylor relayed the events to Mr Tate, who called police. The charges of assault and threatening with intent to intimidate both arose from the appellant’s confrontation with Mr Taylor.

[4] There is a singular, and in my view unsatisfactory, feature of this case. That is that the police investigation into the incident on 21 August was apparently conducted by Senior Constable Tate. He was a complainant in respect of one charge arising from the 21 August incident. Mr Tate confirmed that he carried out the role of investigator. He gave evidence at the hearing. In cross-examination, Mr Taueki (who was appearing in person) asked Mr Tate in what capacity he was appearing at the hearing, as officer in charge or as complainant. Mr Tate answered “both”.

[5] The incidents on 21 August happened when Mr Tate was off duty. He was at the time…

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: [2012] NZHC 3598
Decision Date: 21 December 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Taueki v Police was heard. The appellant, Philip Dean Taueki, appealed against his conviction and sentence for assault and threatening to injure with intent to intimidate. The respondent, New Zealand Police, was represented by P L Murray. The case arose from two incidents at Lake Horowhenua on August 21 and 22, 2012. The appellant was convicted by Judge Ross in the Levin District Court on October 9, 2012, and was sentenced on October 24, 2012. The appellant appealed against both conviction and sentence.

The legal issues in this case were whether the convictions on the 22 August charges could stand, and whether the conviction on the charge of threatening to injure with intent to intimidate could be allowed to stand. The court found that there was a substantial risk that the process of justice had miscarried in respect of the entire prosecution, and therefore the convictions on the 22 August charges could not stand. The court also found that the Judge applied a subjective test in determining whether the appellant's words constituted a threat to injure, which was not the correct test. The court concluded that the conviction of the appellant on both charges could not be allowed to stand.

The final orders were that the appeal against conviction was allowed, and the convictions on both charges were quashed. The case highlights the importance of proper investigation and prosecution in criminal cases, and the need for an independent investigation to avoid any risk of a miscarriage of justice.

Orders