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 acting entirely in his personal capacity.  The alleged offending against him did not arise out of any actions taken by him in his capacity as a senior constable. His position, as complainant, was that of a member of the public.  It was in those circumstances not appropriate for Mr Tate to conduct the investigation as officer in charge.

[6]      Judge Ross noted Mr Taueki’s complaint about Mr Tate’s multiple roles in the case, and said that in the circumstances and with the level of the charge it could not be taken further than noting.   I view the matter more seriously.   The level of the charge did not justify a departure from due process.

[7]      It seems that there must have been some oversight of the case by an officer other than Senior Constable Tate, because a decision must have been made within the police to prosecute the case.  That is not a sufficient or satisfactory alternative to an independent investigation.  The decision whether or not to prosecute should have been made based on information and evidence gathered by a proper investigation by a police officer independent of the complainants.  It is clear from his evidence that Mr Tate himself discussed the case with the prosecutor.

[8]      I  am  not  aware  whether  or  not  this  investigation  complied  with  any applicable police protocols.  That is not a matter for this Court.  The concern of this Court is with the interests of justice.  The issue is whether the process of presentation of the case to the Court has been sufficiently robust that there is no risk that it may cause the course of justice to miscarry.

[9]      There are several unsatisfactory features of the presentation of the case to the Court.  The first is that Mr Tate, in his evidence in chief, gave evidence only about the incident on 21 August, although he was also a witness to events on 22 August. Mr Taueki, in his submissions in support of the appeal, complains that Mr Tate was not available for cross-examination on the events of 22 August.  I consider that an expectation on Mr Taueki’s part that Mr Tate would give evidence on the events of

22 August was a reasonable one.  Mr Murray submits, correctly, that Mr Tate could have been cross examined on any relevant matters.  However, I do not consider that that  submission  adequately  addresses  the  issue  in  this  case.     Mr Taueki  was representing himself, and should not be presumed to know the niceties of the rules of cross-examination.   Furthermore, Mr Tate’s position as officer in charge for the

21 August incident might have been seen as imposing some restraint on the extent to which he could be cross examined on the 22 August incident, when he had not covered that in his evidence in chief.

[10]     Another unsatisfactory feature arises from Mr Tate having been the officer in charge, a witness, and a complainant.   In a properly conducted investigation, a statement should have been taken from Mr Tate as complainant, and disclosed to the defence.     The  material  available  indicates  that  this  was  not  done.     Mr Tate acknowledged that he did not take statements from Mr Hughes or the appellant. Statements should have been taken, by a police officer properly assigned to the case, from all three of them.   In the circumstances and at this level of case these might have been no more than a notebook entry, but they should have been recorded, and consequently available for disclosure.

[11]     There  are  other unsatisfactory aspects  of the prosecution.    One  of those relates to the charge in respect of Mr Hughes.   Mr Hughes was not called as a witness.  Mr Tate acknowledged in cross-examination that he had sent an email to Mr Taueki advising that Mr Hughes was not available as a witness because he would be out of the country on 9 October.   The email said “In consultation with Levin prosecutions it has been decided that the charge will be withdrawn”.   The charge referred to was that of addressing words to Mr Hughes with intent to insult him. That charge did proceed to trial.  Mr Tate was asked in cross-examination when the charge was reinstated.  He said that the charge was never withdrawn so did not need to be reinstated.  In re-examination, he was referred to an email which made clear that  the  decision  to  proceed  was  made  by  the  prosecutor  after  discussion  with Mr Tate.  The action of the prosecution in proceeding with the charge, in the light of the earlier indication that it would be withdrawn, involves an unacceptable level of risk that the process of justice may have miscarried.

[12]     The  matters  to  which  I  have  referred  relate  primarily  to  the  21 August incident.    An  on-duty  officer,  Constable  Currie,  was  called  to  the  incident  on

22 August.   The charges in relation to the 21 August incident were dismissed.   I consider that the dismissal of these charges does not remove the risk of a miscarriage of justice arising from the maters to which I have referred.  The two incidents were very closely linked, and they were dealt with at one hearing.   The issue as to the availability  of  Mr Tate  for  cross-examination  affects  the  22 August  charges.    I consider that there is a substantial risk that the process of justice has miscarried in

respect of the entire prosecution.  I conclude that the convictions on the 22 August charges cannot be allowed to stand.

[13]     That conclusion makes it unnecessary for me to consider many of the matters raised by the appellant.  I do however address one of the substantive points raised in relation to the charge of threatening with intent to intimidate.

[14]     It is apparent from the evidence that there is a degree of tension between the Māori owners of Lake Horowhenua and users of the lake, including kayakers.[1]    In relation to the charge of threatening to injure with intent to intimidate on 22 August, Mr Taylor’s evidence as to the words used was that Mr Taueki said “when I win on the Land Courts I’m gonna get you, you bastard, and don’t think your pig mate, Tate, will help you”.  Mr Taueki’s contention, is that the words did not convey a threat to injure,  rather  they  indicated  an  intention  to  have  the  issues  resolved  by  legal processes through the courts.

[1] In referring to the owners of Lake Horowhenua, I do not intend to be expressing any opinion, or making any finding, about the ownership of the lake. That is not an issue here. It is sufficient to note that in cross-examination Mr Tate was asked whether he had ever disputed that the

appellant is an owner and he said that he had not.

[15]     The  Judge,  in  his  judgment,  described  Mr  Taylor’s  evidence  about  his

impressions of Mr Taueki’s acts and words. The Judge then said:[2]

In these circumstances, though he [sc Mr Taylor] thought he was going to be assaulted at that time, it could not be said when it was the intention of the defendant on a future date, not specified, but when he “won” in the Māori Land Court. So from the complainant’s point of view there was a concern expressed that he was going to be the subject of an assault at some stage in the future.

[2] New Zealand Police v Taueki DC Levin CRI-2012-031-1084, 9 October 2012 at [39].

[16]     It appears that the Judge applied a subjective test in determining whether the appellant’s words constituted a threat to injure.  That is to say, the Judge appears to have considered the relevant question to be whether the complainant interpreted the words as a threat to injure.

[17]     One element of the offence that the prosecution must prove is the making of a threat to injure.  The test is not a subjective one. A factual finding was required from

the Judge that the appellant’s words and actions constituted a threat to injure.  To

make that finding, the Judge had to consider the appellant’s submission that any threat was of future legal action, not of injury.   The complainant’s evidence as to how he interpreted those words was relevant to that issue, but not determinative of it. Had I not decided that the convictions could not stand for the other reasons I have discussed, I would have allowed the appeal on this charge on that ground.

[18]     I am satisfied that the conviction of the appellant on both charges cannot be allowed to stand.  The appeal against conviction is allowed.  The convictions on both charges are quashed.

“A D MacKenzie J”

Solicitors:         Crown Solicitor’s Office, Palmerston North for Respondent

Copy to:           Philip Dean Taueki.