Taueki v Police
[2020] NZHC 2526
•25 September 2020
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2020-454-016
[2020] NZHC 2526
BETWEEN PHILIP DEAN TAUEKI
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 September 2020 Appearances:
Appellant appears in Person with A Hunt (in support) J J Harvey for the Respondent
Judgment:
25 September 2020
JUDGMENT OF GRICE J
Introduction
[1] Mr Taueki was convicted of one charge of threatening to kill1 and one charge of intimidation2 on 21 July 2020.3 He was convicted and ordered to appear for sentence if called upon within nine months.4 Mr Taueki appeals both of his convictions. He is self-represented with the support of Ms Hunt.
[2] The matters leading up to the events giving rise to the charges go back some years. They indirectly relate to Mr Taueki and his whānau exercising kaitiakitanga over Lake Horowhenua (the Lake). The Judge-alone hearing took place over two days and involved some 13 witnesses.
1 Crimes Act 1961, s 306; maximum penalty seven years’ imprisonment.
2 Summary Offences Act 1981, s 21(1)(a); maximum penalty three months’ imprisonment or a fine of $2,000.
3 Police v Taueki [2020] NZDC 13860 [District Court Judgment].
4 Police v Taueki [2020] NZDC 14270 [Sentencing Notes].
TAUEKI v NEW ZEALAND POLICE [2020] NZHC 2526 [25 September 2020]
Background
[3] The management and stewardship of Lake Horowhenua has been contentious. The Lake has ancestral significance to the Muaūpoko people, including Mr Taueki and his family. The Lake is heavily polluted, but not everyone agrees how it should be cleaned.
[4] Mr Taueki is not happy about the role of the Lake Horowhenua Trust (Lake Trust) and the Horizons District Council (Horizons). Representatives of those organisations were involved in the encounter that led to the charges. Mr Taueki believes that those representing the Lake Trust or Horizons are biased against him. He also referred, in the course of his oral submissions, to what he referred to as “illegal activities” by the groups, in particular, the Lake Trust. He said that it was “them [that] should be prosecuted,” not him.
The threat to kill and intimidation
[5] The alleged threat to kill and intimidation occurred on 17 May 2018 at the District Court in Levin. The Māori Land Court on that day had heard an injunction application brought by Ms Vivienne Taueki (Mr Taueki’s sister) against Horizons. There were three groups of people at the Court: the Taueki group, the Horizons group, and the Lake Trust group. The Court that day found in favour of Horizons.
[6] After the hearing, Dr Jonathan Procter (the recipient of the alleged threat to kill) and Mr Matthew Sword (of Lake Trust) encountered Mr Taueki and Mr Heremaia (of the Taueki group) at a court elevator.5 Mr Taueki then is alleged to have yelled abuse at Dr Procter, including saying to him “you’re dead man, dead man walking”. Dr Procter’s evidence was that such comments had been common over the years. Dr Procter also alleged that Mr Heremaia lunged forward and punched him in the chest.
[7] Mr Logan Brown (of Horizons) said he was also the subject of abuse by the Taueki group after that hearing. He said that after his group left the courthouse,
5 Mr Taueki was also charged with threatening to kill Mr Sword, but the Police offered no evidence for this charge; the Judge discharged Mr Taueki under s 147 of the Criminal Procedure Act 2011.
Mr Taueki had said “Brown, next time you’re down here we will sort you out”. Taking the threat seriously, Mr Brown said he had checked that the Horizons group had safely left the courthouse and that none were at Lake Horowhenua.
Evidence of other witnesses at the trial
[8] Ms Kelly Tahiwi (of Lake Trust) corroborated the accounts of Dr Procter and Mr Brown.
[9] The defence focused on building the case that those connected to the Lake Trust and Horizons were biased against Mr Taueki and so, were not telling the truth.
[10] Ms Taueki said that she did not hear her brother make the alleged threats. She claimed that the Lake Trust group were the aggressors after the May 2018 hearing. Mr Heremaia (of the Taueki group) said that his “punch” of Dr Procter was merely him putting out his hands to stop him. But the Judge noted that the CCTV footage showed clearly that it was either a punch or a heavy push. Mr Heremaia also gave evidence that he did not hear Mr Taueki threaten anybody.
[11] Mr Tenhave (of the Taueki group) confirmed that he heard Mr Taueki say the words “you’re a dead man walking Procter”. However, he quickly corrected himself to say that Mr Taueki said those words to Mr Sword, not to Dr Procter. He said that he often confused the two.
CCTV footage
[12] The CCTV footage assisted the Judge. The Judge indicated that from it he could tell that Mr Heremaia and Mr Taueki were aggressive and agitated. The footage also assisted in determining each witness’ location at relevant times.
Witness credibility
[13] The Judge found Ms Tahiwi to be an impressive witness and one who was, as the CCTV footage showed, close to the elevator at the time of the alleged threat to kill.
[14] The Judge found Ms Taueki’s evidence that the courtroom mood was not tense and that there was no loudness was contradicted by evidence of the (more objective) Registrar and security guards. The CCTV evidence also disproved her assertion that it was the Lake Trust group who were the aggressors at the elevator. Given that the footage showed she was not in the area at the relevant time, the Judge found her evidence as to not hearing Mr Taueki’s threat was of little weight.
[15] The Judge was of the view that Mr Heremaia’s hearing impairment undermined his evidence that he did not hear Mr Taueki’s threats.
[16] The Judge was cautious about Mr Tenhave’s evidence. The Judge did not accept the explanation that he mistook Dr Procter for Mr Sword. Nevertheless, he noted the account supported that the words “dead man walking” were used. The Judge commented:6
[132] Significantly, Mr Tenhave said he definitely had the words “dead man walking” and that he was 1”00 percent” [sic]. He likened this to a line he had heard that the movie The Green Mile, and he said that “… When Phil said it I thought oh come on Phil that’s a bit corny, you know”.
[133] He agreed with Mr Harvey that if somebody else said that wasn’t said [sic] that person would be either lying, mistaken, or simply didn’t hear it.
…
[162] I have serious reservations about Mr Tenhave’s explanation for his change in evidence as to whom the “dead man walking” comment was directed. Mr Tenhave claimed he mixed Dr Procter and Mr Sword up, and, as I have already observed, his account as to who left first does not align with the objective CCTV evidence.
[163] Having said that, Mr Tenhave’s evidence is clear corroboration that Mr Taueki uttered the words in question.
[164] Given the corroborating factors I mention, I accept Dr Procter’s account of what was said. I conclude the police have established beyond reasonable doubt that Mr Taueki threatened Dr Proctor [sic] with words to the effect that he was “a dead man walking”.
[165] I arrive at this finding of fact on the basis of Ms Tahiwi’s evidence, which corroborates that of Dr Procter’s. I also conclude that the evidence of Mr Tenhave, supports the police contention that Mr Taueki issued threats of the general kind alleged by the police. Mr Tenhave’s evidence, therefore, corroborates to some extent, the police case.
6 District Court Judgment, above n 3, at [132]–[133] and [162]–[165].
[17]The Judge noted this was supported by the evidence of Ms Tahiwi. He said:7
[72] She too referred to her police statement to refresh your memory. Having refresh to memory, she recalled that Mr Taueki called out to Dr Procter and Mr Sword and said that they were “dead men walking”. She said she knew that the comments were directed at the two men, because he said their names before he said the statement.
Conclusion
[18] In conclusion the Judge found that Mr Taueki threatened to kill Dr Procter by saying that he was “a dead man walking”. He found that Mr Taueki intended the threat to be taken seriously; it was said in the context of Mr Heremaia’s assault on Dr Procter and in an environment of heightened tension. The Judge also concluded that the words “dead man walking” was a reference to somebody dying. The Judge said:8
[166] I conclude that Mr Taueki intended the threat to be taken seriously. The threat was delivered in the context of Mr Heremaia’s assault on Dr Procter, and I conclude it in an environment of heightened tension. In general terms, I make no findings as to the background relationships between Mr Taueki, his group and the Lake Trustees, but I am satisfied that there is a long history of distrust and antipathy. As I say, I make no clear findings as to the reasons for that, but in the context of this case, the long history of animosity between the parties assist me to conclude that Mr Taueki intended the threat to be taken seriously.
[167] I also conclude that the words “dead man walking” are a reference to somebody dying. I conclude that meaning is available on the words themselves, in that the person to whom they were directed can be expected to die. The words may be considered to be an anticipation of somebody dying.
[168] I make it clear that I do not necessarily conclude that Mr Taueki intended to carry the threats out, but that is not a necessary matter of proof.
[169] For these reasons, I find the charge of threatening to kill Dr Procter proved.
[19] Turning to the intimidation charge, the Judge accepted Mr Brown’s evidence that the Taueki group yelled abuse at the Horizons group as the latter left the courthouse. He noted that this account was consistent with the Taueki group’s behaviour in the elevator area. It was also consistent with the accounts of the Registrar and court security guards that the mood in the courtroom had become tense. He also noted that Mr Brown was minded to check up on other members of Horizons after the
7 District Court Judgment, above n 3, at [72].
8 At [166]–[169].
threat. The Judge was satisfied that the threat reasonably caused him to be intimidated (and that Mr Taueki intended it to do so). The Judge concluded:9
[173] In general terms, I found Mr Brown to be a credible and reliable witness. His connection with Lake Horowhenua and its management is largely professional, and he came across to me as being clinical and detached. He has no particular emotional connection with the issues surrounding the lake and made concessions where they were appropriate. For example, he did not allege that Mr Taueki has a history of violence and limited his criticism to him of the kind of language he uses.
[174] His account is substantiated also having regard to the CCTV footage. As I have already pointed out, Mr Taueki was clearly in an angry and animated mood, while he and others in his group were on the footpath in front of the Courthouse. He clearly looked in the direction of the Horizons group, who were in the near distance, heading towards the Salisbury Street intersection.
…
[176] I conclude that Mr Brown was caused reasonably to be intimidated by the language directed at him. Mr Brown outlined examples of incidents involving Mr Taueki and was sufficiently alarmed by what was said to pause the Horizons group to check in with others to make sure they were fine, and that there were no Horizons staff at the lakeside. He said that he thought some type of physical response might follow when he next encountered Mr Taueki.
[177] I conclude therefore that Mr Taueki had a conscious appreciation of the risk that Mr Brown would be intimidated.
[178] On that basis, I find the essential elements of the charge of intimidation proved.
Relevant law
[20] The applicable law as to the appeal is not in dispute. An appeal against conviction following a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011:
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
9 District Court Judgment, above n 3, at [173]–[174] and [176]–[178].
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[21] The Supreme Court recently re-examined the approach to conviction appeals from Judge-alone trials in Sena v New Zealand Police.10 The Court held that appeals in such cases should proceed by way of rehearing, in accordance with the well-established principles canvassed in Austin, Nichols & Co Ltd v Stichting Lodestar.11
[22] Mr Taueki must satisfy the Court that a miscarriage of justice has occurred.12 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.13 Not every error or irregularity causes a miscarriage of justice; a miscarriage “is more than an inconsequential or immaterial mistake or irregularity”.14
[23]I note that the Judge set out his approach to the evidence as follows:15
[7] Before I consider the evidence, it is important to set out my role in this trial.
[8] This is a criminal prosecution. The onus is on the police to prove the elements of each charge beyond reasonable doubt. There is no onus on the defendant [to] prove or disprove anything. All facts need not be proved
10 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575.
11 At [32], citing Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
12 Criminal Procedure Act 2011, s 232(2).
13 Section 232(4).
14 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
15 District Court Judgment, above n 3, at [7]–[20].
beyond reasonable doubt, only the essential elements of the charge. In this case, the defendant has not given evidence himself. However, he has called witnesses in his defence. The fact that the defence has called witnesses does not change the onus or standard of proof that I have earlier referred to.
[9] I have considered all of the evidence that has been placed before me in this case. This includes the evidence given by witnesses on oath, and the statement of Court Security Officer, Dean Baker, that was handed to me with the consent of the defence. I have also considered the documentary exhibits produced by both the police and the defence. The police have relied upon a booklet of photographs with a scene diagram of the Court building. The police also rely upon closed-circuit television footage which I have viewed several times. I have been provided with a series of stills from that footage.
[10] The defence has relied upon a booklet of documents and photographs and has filed copies of judgments. I have read those judgments, significantly the decision of Taueki and Rudd v Procter and Others, a judgment of the M[ā]ori Land Court. Mr Taueki relied on aspects of the judgments to lay a foundation for his case that there has been a history of antipathy towards him, and bias against him by police witnesses to the extent that their evidence about his conduct was dishonest.
[11] I have considered the honesty, reliability and credibility of each witness. I do not have to accept everything that a witness says or reject everything that a witness says. I am entitled to accept and reject parts of what was said in evidence. I have carefully considered divergence in the evidence.
[12] In considering the evidence of each of the witnesses, I have considered the reasonableness and coherence of the evidence. I have considered whether the evidence is consistent with or supported by other evidence. I have carefully considered the evidence that I considered was contradictory, inconsistent and unsupported. Among other considerations, I have taken into account the ability of witnesses to observe the events in question. I have considered the opportunity witnesses had to observe the events and the ability of them to articulate what they saw.
[13] The memory and judgement of witnesses has been important, and several police witnesses referred to statements made to the police to refresh their memory.
[14] I have been particularly careful about witnesses who may have had an interest in the outcome of this case. By this I mean whether the witness has a motive to lie, exaggerate, distort or minimise the actions of any of the parties. This is important in this case, as Mr Taueki alleges that several of the witnesses called by the police had a motive to lie. Part of that assessment has been whether there was any apparent bias or prejudice exhibited by any of the witnesses.
[15] In looking at this aspect, I have looked for independent sources to either support or refute evidence. I have therefore considered whether independent evidence supports or detracts from other witnesses’ evidence.
[16] However, the lack of independent evidence is not fatal. Many cases involve issues of credibility without independent evidence. For example, it is important to look at the reasonableness, the coherence and probability of
events occurring in the manner described by the witnesses. I have considered the performance of witnesses under cross-examination. Having said that, Courts usually place little weight on demeanour alone, as demeanour maybe they deceptive and arbitrary way of assessing a witness’s evidence.
[17] I am conscious that witnesses, although honest and sincere, may be genuinely mistaken about events. A witness needs to not only be honest and sincere, but also reliable and credible. In this matter, one of the important considerations has been the ability of witnesses to hear and see events that are important. In this vein, witnesses do not all see the same things. Witnesses do not place the same weight on what they see. Witnesses may also have different abilities to recall matters from their memories.
[18] It is also important in the context of this case to recall that in cases involving anger, tension and high emotions, inconsistencies between witnesses are to be expected.
[19] Finally, when addressing these preliminary but important matters, I need to emphasise that in reaching a decision and [sic] a Judge-alone trial it is neither necessary, nor my [sic] required, to articulate findings about every item of evidence. My role is to determine whether the prosecution has proven the elements of the alleged offences beyond reasonable doubt. In doing so, it is however necessary for this resolve primary disputes over the facts.
[20] In coming to my conclusions, I note that I am entitled to draw inferences. An inference is simply a logical deduction from one or more proven facts. The making of inferences in criminal cases occurs on a daily basis as part of the deductive process of assessing evidence.
Appellant submissions
[24] Mr Taueki’s written and oral submissions on appeal cans be summarised as follows:
(a)Threat to kill: the Judge applied a subjective test instead of an objective test when determining that the words “you’re a dead man walking” constituted a threat to kill.
(b)Hearsay evidence: the Judge incorrectly allowed the admission of hearsay evidence of Mr Taueki’s statements.
(c)Relevant evidence disregarded: the Judge excluded or disregarded relevant evidence of Dr Procter’s mismanagement of Lake Trust funds.
(d)Incorrect factual finding regarding CCTV footage: the Judge made incorrect factual findings about the direction that witnesses took after leaving the courthouse.
(e)Intimidation of Mr Brown: the Judge wrongly found that the statement was objectively a threat to injure, relying too much on Mr Brown’s interpretation of it.
(f)Incorrect factual finding regarding the police interview: the Judge was wrong to find that Mr Taueki declined a police interview.
Threatening to kill Dr Procter: subjective/objective test
[25] Mr Taueki says that the Judge failed to consider MacKenzie J’s judgment in Taueki v New Zealand Police.16 There, MacKenzie J made clear that the test for a threat to injure was objective: not a subjective analysis of how the complainant interpreted the words.17
[26] Mr Taueki also submits that the Judge failed to consider the defence’s closing submission that the words “dead man walking,” according to the Collins Dictionary, mean “a person in a doomed or untenable position”. He says that the Judge’s failure to refer to this objective definition thus proves that he mistakenly applied a subjective test. Mr Taueki, in his oral submissions, emphasised the use of this phrase for someone about to lose their job.
[27] In my view there was adequate evidence upon which the Judge could find that, objectively, “you’re a dead man walking Procter” referred to Dr Procter dying.18
[28] The words in question may be used in a number of contexts. The phrase is often used to refer to prisoners on death row or for a person who will soon die. Given the context, an objective reasonable observer could interpret the statement as a threat to kill. This finding was open to the Judge on the evidence. The Judge had turned his
16 Taueki v New Zealand Police [2012] NZHC 3598.
17 Though evidence of how the complainant interprets the threat could be relevant, despite not being determinative: Taueki v New Zealand Police, above n 16, at [17].
18 District Court Judgment, above at n 3, at [167].
mind to the meaning of the words and concluded that in this context it was apparent that they were used as a threat to someone that they will die. While the Judge did not specifically say the test was objective, it is clear that he did apply an objective test. His conclusion which followed a lengthy analysis of the evidence illustrates this.19 He said:
[167] I also conclude that the words “dead man walking” are a reference to somebody dying. I conclude that meaning is available on the words themselves, in that the person to whom they were directed can be expected to die. The words may be considered to be an anticipation of somebody dying.
[29] Mr Taueki also takes issue with the Judge’s failure to require proof that Mr Taueki intended to carry out each threat.
[30] There is no merit in this point. A charge of threatening to kill does not require proof that the defendant intended to carry out the threat.20 Of course, it may be relevant to the context of the threat but the Judge was not required to expressly refer to the issue. It was a matter which might be relevant, in the same way that the background and the simmering tensions between the parties were relevant.
[31] Mr Taueki also points to the Māori Appellate Court’s decision of 12 September 2018,21 the effect of which was to annul the appointment of the Lake Trust trustees. From this, Mr Taueki says that on 17 May 2018 the “dead man walking” comment was foreshadowing that outcome. He had filed an appeal which led to that outcome but the decision was still some way off. Therefore, Mr Taueki says he meant that Dr Procter was in a “doomed or untenable position” because he was to be removed as a trustee and so was a “dead man walking”. Mr Taueki emphasised this meaning in his oral submissions.
[32] While it is possible that this could be one meaning, it appears strained. It is an interpretation however, based on hindsight. Given the heightened tensions between the groups and the assault by Mr Heremaia of Dr Procter, it was open for the Judge to find that “dead man walking” was objectively a physical threat, not a legal threat.
19 District Court Judgment, above n 3, at [151]–[167].
20 R v Adams [1999] 3 NZLR 144, (1999) 17 CRNZ 205 (CA) at [7]; and Police v Goldie [1993] 2 NZLR 329, (1993) 9 CRNZ 625 (HC).
21 Taueki – 354 Aotea MB 54-88 [2018] Māori Appellate Court MB 512 (2018 APPEAL 5).
Hearsay evidence
[33] Mr Taueki also claims that evidence about his threats were hearsay and therefore inadmissible.
[34] Mr Harvey, for the police, points to s 27(1) of the Evidence Act 2006. In a criminal proceeding, the prosecution can offer statements made by a defendant as evidence against that defendant. This provides as follows:22
27 Defendants’ statements offered by prosecution
(1)Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.
[35] The witnesses who gave evidence, other than Mr Taueki, gave evidence of what they had observed and heard.
[36] In any event, in this case the statements were adduced not for the purposes of establishing truth of the contents of those statements but rather the fact they were made.
[37]Hearsay is defined in s 4 of the Evidence Act as follows:
hearsay statement means a statement that—
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents
[38] The Judge found that the threats were made by Mr Taueki in the presence of the complainants.
[39]The evidence of the threats is admissible. There is nothing in this appeal point.
22 Evidence Act 2006, s 27(1).
Relevant evidence disregarded
[40] Mr Taueki says that the Judge disregarded evidence about Dr Procter’s mismanagement of the Lake Trust funds. The heart of his submission here is that, because of previous court findings that Dr Procter had been dishonest, the Judge was wrong to accept Dr Procter’s account. This was also a matter which was emphasised in the appellant’s oral submissions.
[41] This was a matter which the Judge took into account.23 The Judge was entitled to accept Dr Procter’s evidence in this case. I note the Judge did so cautiously, with reference to other evidence and the CCTV footage.
The CCTV footage
[42] Mr Taueki points to the Judge’s comment that Dr Procter, Mr Sword, and the Horizons group exited the courthouse and turned left.24 But Mr Taueki says that the CCTV footage clearly shows that Dr Procter exited and turned right. He submits that this is significant because Dr Procter was cross-examined about the direction he took and the time it took for him to leave. In his oral submissions Mr Taueki emphasised that the Judge had the details wrong in relation to the direction in which people had left the building. He said that the Judge’s mistakes made on these facts, together with the lack of weight the Judge gave to evidence showing that the other groups, in particular Dr Procter’s group, had acted contrary to the Māori Land Court orders amounted to a material error by the Judge in the way he assessed the evidence.
[43] Even if the Judge made a mistake as to the direction which the parties turned following the incident, this was not material to his decision. Minor factual inaccuracies in the judgment do not, in this case, go to the heart of the findings. The Judge had adequate evidence supporting his findings that the threats had been made. In addition, he was aware of the background, including the allegations against the Lake Trust and Dr Procter and Horizons, as well as the Māori Land Court decisions.
23 District Court Judgment, above at n 3 at [46].
24 At [141].
[44] Mr Taueki also complained that the Judge had ruled the evidence of alleged financial mismanagement of the Lake Trust’s affairs was irrelevant and so Mr Taueki was required to stop that line of questions. The Judge made no error in intervening.25 The Judge was aware of the allegations and the issues surrounding the Lake and the Lake Trust, including the allegations that Horizons thought they were above the law. This was a point which Mr Taueki pursued passionately in his oral submissions.
The Judge specifically refers to these in his judgment:26
[58] Mr Taueki asked questions about the nature of the work being undertaken that resulted in the injunction application. He had Mr Brown confirm that he knew the extent of the title to the lake bed and its surrounds, held by Mr Taueki others. This, I understand includes the lake bed, a chain strip and what is described as a dewatered area surrounding the lake. Mr Brown was aware of that. I was told that there were about 1800 owners.
[59] Mr Brown was asked if he understood that Mr Taueki had a propensity to violence. Mr Brown was particular saying that his issue was with Mr Taueki’s language, and he was not aware of physical violence.
[60] Mr Taueki asked a number of questions of Mr Brown about his understanding of bylaws relating to management of the lake. Some questions were also asked about monitoring at the lake, and water quality there. Mr Taueki’s point is that Horizons think they are above the law, and ignore the rules put in place to protect the lake that belongs to him and others. Mr Taueki had particular issue with the proposition that horizons was launching boats onto the lake that had not been washed beforehand.
[61] Mr Taueki asked Mr Brown if he understood the cultural significance of the lake. Mr Brown saying that he definitely understood its cultural significance. Mr Taueki’s particular point was that in launching boats on the lake for sampling, they put the lake at risk, and are disturbing the final resting place of his ancestors. He asked Mr Brown if that held any significance for him. Mr Brown’s response that it does hold significance for him, but that they had appropriate permissions to undertake sampling work. For example, he said that a survey of k[ā]kahi freshwater mussels was undertaken in conjunction with the Lake trust as a joint project.
[62] Mr Taueki asked a number of questions about whether Horizons was complying properly with obligations to wash boats down before and after they had been used on the lake.
[63] Mr Taueki showed Mr Brown photographs of a drainage project (“Queen Street” or “T” Drain) undertaken by the Lake Horowhenua Trust. Mr Brown commented that that was not something that Horizons had overseen.
[64] Mr Taueki asked if Mr Brown was aware that a lot of the beneficial owners of the lake bed and surrounding area have no faith or trust in Horizons
25 District Court Judgment, above n 3, at [46].
26 At [58]–[64].
to do its job. Mr Brown said he could not speak for all beneficial owners, but he was aware that some have an issue with the way the Horizons would like to proceed. Mr Brown pointed out that while some of the interventions would result in improved water quality in the lake, they have been unable to undertake further work because of legal proceedings.
[45] The Judge had before him the background. That evidence was for the Judge to weigh and consider.
[46] As I have noted, the Judge was cautious in his findings and looked for other evidence to support that of Dr Procter in particular. However, he was not required to refer to every piece of evidence before him. He dealt with all the main arguments and gave reasons for his conclusions. No error arises under this head.
Intimidation of Mr Brown
[47] Mr Taueki alleges that the Judge wrongly focused on the complainant’s (here, Mr Brown’s) interpretation of the statement, rather than its objective meaning. Mr Taueki also contests the Judge’s finding of fact that he said “Brown, next time you’re down here we will sort you out” rather than just “stay off my property”, as another witness, Mr Lynch, said he heard Mr Taueki say.27 From that, Mr Taueki says that the latter statement is not objectively intimidation because the risk that Mr Brown had was he would be prosecuted if he came onto the Lake property and failed to comply with the domain bylaws.
[48] Again, the Judge had adequate evidence to conclude that the former statement was made and, taken objectively, was intimidatory. Given the mood of the courtroom, as noted by the Registrar and court security guards, and the previous altercation at the elevator, the words “next time you’re down here we will sort you out” could convey a threat of physical violence to an objective reasonable observer.
[49] I also bear in mind the comments of the Supreme Court in Austin, Nichols & Co Inc v Stichting, that first instance tribunals and courts often have a particular advantage in assessing the credibility of witnesses.28 The Judge was able
27 District Court Judgment, above n 3, at [54] and [81].
28 Austin, Nichols & Co Inc v Stichting, above n 11, at [5].
to assess the evidence and the nuances. For instance, he said Mr Brown made appropriate concessions and limited his criticism of the appellant to the kind of language used, rather than alleging a history of violence.
[50] Mr Taueki points to the judgment of Kós J29 in Taueki v Police,30 where Mr Taueki appealed a conviction for disorderly behaviour. In it, Kós J found that Mr Taueki’s vociferous protests against an unlawful paddling regatta at Lake Horowhenua were not disorderly behaviour in the circumstances.
[51] That case involved very different facts. Kós J found that the context of protesting an unlawful activity raised the threshold for disorderly behaviour, meaning that an earlier confrontation involving Mr Taueki did not cross the bar for disorderly behaviour. But a later confrontation, in which Mr Taueki directly and personally sought out and picked a fight with another complainant, was disorderly behaviour. To the extent that the disorderly behaviour and intimidation charges here are analogous, that judgment is against Mr Taueki. His behaviour towards Mr Brown was personalised and was not done to prevent Mr Brown from breaking the law. In addition, the threats in this case occurred after a court case in the precincts of the Māori Land Court. The situation was entirely different.
The police interview
[52] Finally, Mr Taueki challenges the Judge’s finding that Mr Taueki exercised his right to silence and did not make a statement to police.31 This is because in cross-examination Sergeant Piggott incorrectly said that his job sheet recorded the fact that Mr Taueki declined to make a statement.
[53] As Mr Taueki appeared to accept in his oral submissions, the lack of recording in the job sheet was not determinative. He pointed to it as part of a series of errors made.
29 As he then was.
30 Taueki v Police [2012] NZHC 3538.
31 District Court Judgment, above n 3, at [96].
[54] The Judge was entitled to accept Sergeant Piggott’s evidence despite the lack of a job sheet entry. The fact the sergeant had thought he had recorded the matter in his job sheet was immaterial in the circumstances. In relation to this witness the Judge said:32
[96] Finally, for the police, Mr Harvey called Sergeant Ian Piggott. Sergeant Piggott outlined preparation of exhibits for the trial. He located and arrested Mr Taueki on 28 August 2018. This was at an area known as the nursery, on the domain at the lake. He arrested Mr Taueki, processed him at the police station and returned him home. Mr Taueki exercised his right to silence and did not make a statement.
[97] Sergeant Piggott agreed with Mr Taueki that he took a statement from Mr Heremaia. This was in the context of Mr Heremaia being charged with assault. Mr Taueki criticised the police for not interviewing all other persons of his group who were in the area at the relevant time. Sergeant Piggott emphasised that time was taken to arrest Mr Taueki because of the need to enquire into the incident and take statements from witnesses.
[55] It was open to the Judge to accept Sergeant Piggott’s evidence. In any event, the evidence is peripheral at most.
Conclusion
[56] In his oral submissions Mr Taueki, assisted by Ms Hunt, emphasised the importance of the background to this matter. Mr Taueki felt he had been persecuted by the police. Numerous charges have been laid against him through the years and many have been dismissed.
[57] Mr Taueki said that it should have been representatives of the Lake Trust and the Horizons that were prosecuted and not him.
[58] Ms Hunt emphasised that the whole matter was coloured by the fact that Mr Taueki and his whānau were merely seeking to exercise kaitiakitanga over the Lake and that this tikanga should be taken into account in this case. That point could well have traction were this about issues more directly related to the Lake. But it is not.
32 District Court Judgment, above n 3, at [96]–[97].
[59] While the background to this case is relevant, the issues relating to kaitiakitanga and tikanga are not directly in play. The case centred on criminal charges based on events which occurred in the vicinity of the court.
[60] The Judge made no error in his consideration of the facts or in law in relation to the charges. There is no miscarriage of justice.
[61]The appeal is dismissed.
Grice J
Solicitors:
BVA The Practice, Palmerston North for respondent.
Copy to:
The appellant.
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