Taueki v Police - [2016] NZCA 433

IN THE COURT OF APPEAL OF NEW ZEALAND

CA186/2016
[2016] NZCA 433

BETWEEN	PHILIP DEAN TAUEKI Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	30 August 2016
Court:	Kós P, Mallon and Whata JJ
Counsel:	Applicant in person K A Courteney for Respondent
Judgment:	12 September 2016 at 10 am

JUDGMENT OF THE COURT

ALeave to appeal is granted on the issue of whether the police officers maintained custody of Mr Taueki such as to support a charge of escaping custody.
BThe application for leave to appeal is otherwise declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Philip Taueki, of Lake Horowhenua, a taonga of Muaūpoko,[1] is not happy with the local rowing club’s occupation of the Lake’s foreshore. This has brought him before the courts on a number of occasions. The present matter arises when he was found one night in the club’s building and, according to the police, was arrested but escaped. Mr Taueki disputes this. The District Court Judge preferred the police’s account and Mr Taueki was convicted and discharged on one count of escaping custody.[2] At the same trial, Mr Taueki was acquitted on related charges of defacing a building and burglary.
[1]Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235 at [1].
[2]R v Taueki [conviction] [2015] NZDC 7815; NZ Police v Taueki [sentence] [2015] NZDC 14034.
The charges were tried immediately after a trial for four charges relating to incidents that occurred at Kemp Street, Hokio Beach on which Mr Taueki was acquitted.[3] Mr Taueki had also faced drug and receiving charges that were withdrawn at a case review hearing prior to trial after the police reviewed the legality of their search with respect to those charges.
[3]The charges were for wilful damage, male assaults female and two charges of assault with a weapon.
At sentencing, the District Court Judge refused to make an order for the disbursements of a McKenzie Friend in the sum of $55,135.36 in relation to withdrawn and/or dismissed charges.
Mr Taueki’s appeal to the High Court was resolved on the orthodox basis that the District Court Judge was well placed to make the requisite credibility findings, that there was sufficient evidence to justify his conclusions and that there was no error in the discretion to decline costs and disbursements.[4]
[4]Taueki v NZ Police [2016] NZHC 667 at [20].
Mr Taueki seeks leave to bring a second appeal to this Court on the conviction and the refusal to award disbursements. He must show that the appeal gives rise to an issue of general or public importance or that a miscarriage of justice may have occurred or will occur if the appeal is not heard.[5] Three aspects of his intended appeal are in focus:
(a)Whether (alleged) police misconduct vitiates the conviction.
(b)Whether the Judge was right to find that he was in custody.
(c)Whether the costs of a McKenzie Friend are recoverable as disbursements.
[5]Criminal Procedure Act 2011, ss 237 and 276.
This judgment is…

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: [2016] NZCA 433
Decision Date: 12 September 2016 at 10 am

CaseChat Overview and Summary

In Taueki v Police, the applicant, Philip Taueki, sought leave to appeal against his conviction for escaping lawful custody and the refusal to award costs. The appeal arose from an incident in which Mr Taueki was found in a building, arrested by police, and subsequently escaped custody. The District Court found him guilty of escaping custody, but acquitted him of related charges of defacing a building and burglary. Mr Taueki appealed the conviction and the refusal to award costs to the High Court, which dismissed the appeal. He now seeks leave to bring a second appeal to the Court of Appeal.

The primary legal issues in this case were whether police misconduct vitiates the conviction, whether the police maintained custody of Mr Taueki, and whether the costs of a McKenzie Friend are recoverable as disbursements. The Court of Appeal focused on whether the appeal gave rise to an issue of general or public importance or the risk of a miscarriage of justice.

Regarding the alleged police misconduct, the Court found that there was no nexus between the misconduct and the conviction for escaping custody, and therefore, the appeal did not raise any issue of general or public importance or risk of miscarriage of justice. However, the Court accepted that Mr Taueki's concern about the Judge's findings on custody potentially raised an issue of public importance, namely whether the police officers maintained custody of Mr Taueki such as to enable a charge of escaping custody.

As to the costs appeal, the Court found that the availability of disbursement awards to self-represented litigants under the Costs in Criminal Cases Act 1967 was an issue of general importance. However, the Judge had refused Mr Taueki's application for disbursements as costs on its merits by reference to the applicable statutory criteria. The Court concluded that no inquiry into a point of fact, law, or principle of public or general importance was engaged by this fact-specific evaluation.

Outcome: The Court granted leave to appeal on the issue of whether the police officers maintained custody of Mr Taueki such as to support a charge of escaping custody. The application on all remaining matters was declined.

Orders