Taueki v Police
[2016] NZHC 667
•13 April 2016
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-454-14 [2016] NZHC 667
BETWEEN PHILLIP DEAN TAUEKI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 March 2016 Appearances:
Appellant in person, A Hunt, McKenzie Friend
EM FitzHerbert for RespondentJudgment:
13 April 2016
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 13 April 2016 at 11:00 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
TAUEKI v NEW ZEALAND POLICE [2016] NZHC 667 [13 April 2016]
[1] On 6 May 2015, in the District Court at Levin, Phillip Dean Taueki was convicted by Judge WK Hastings on a charge of escaping lawful custody under s 120 of the Crimes Act 1961.1 Judge Hastings found Mr Taueki not guilty of charges of defacing a building and burglary. These charges related to incidents which occurred between 26 and 28 March 2014 at or near a building occupied by the Horowhenua Rowing Club (“the rowing club building”), on the shore of Lake Horowhenua. Following an earlier hearing, the Judge had also acquitted Mr Taueki of four charges arising from events which occurred on 22 March 2014 at Hokio Beach.2
[2] On 22 July 2015, at the sentencing hearing for the escaping charge, Judge Hastings declined Mr Taueki’s application that he be discharged without conviction under ss 106 and 107 of the Sentencing Act 2002.3 The Judge assessed the gravity of the offending as moderate and convicted and discharged Mr Taueki. He declined to make an order in favour of Mr Taueki under the Costs in Criminal Cases Act 1967.
[3] Mr Taueki appeals against the conviction and the Judge’s costs decision. He abandoned his appeal against the sentence. The remaining issues on appeal are:
(a) Whether the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred and the conviction should be set aside.4
(b) Whether the Judge was right to refuse to make a costs order in
Mr Taueki’s favour in relation to his acquittals and the conviction.5
The background and findings of fact
[4] The hearing of the charges against Mr Taueki took place over six days between 12 and 19 February 2015. On 6 May 2015, Judge Hastings delivered a
carefully reasoned decision. Mr Taueki had appeared in person at the hearing but he
1 New Zealand Police v Taueki [2015] NZDC 7815.
2 New Zealand Police v Taueki [2015] NZDC 14034 at [17], the sentencing decision, where the Judge summarised the charges as wilful damage, male assaults female and two charges of assault with a weapon.
3 At [16].
4 Criminal Procedure Act 2011, s 232(2)(b) and (4).
5 Sections 271 and 274.
was supported by a McKenzie Friend, Ms Hunt. An experienced criminal lawyer, Mr Simon Hewson, had been appointed by Judge Hastings to assist the Court. The Judge said that Mr Hewson was of great assistance to him in refining the issues, researching the law, and ensuring the hearing went smoothly.
[5] The factual background to the offence of which Mr Taueki was convicted is set out comprehensively in Judge Hastings’s decision.6 It is not necessary to repeat the detail for the purposes of the appeal, but I summarise the factual findings briefly.
[6] Mr Taueki is a member of the Muaūpoko Iwi. Over many years Mr Taueki has been involved in litigation before the Māori Land Court, the Māori Appellate Court, the Court of Appeal and the Supreme Court concerning the ownership and use of the lake bed and land surrounding Lake Horowhenua, which is vested in trustees for the benefit of the members of the Iwi. The rowing club building sits on part of this land and the club’s occupation of it has been a long-standing source of dispute.
[7] The Māori Land Court has found that the Club has no legal right to occupy the land;7 this point has also been noted by the Supreme Court.8 . However, when Mr Taueki sought to prevent the Rowing Club from occupying the land, the Māori Land Court declined his request, essentially on the basis that the Lake trustees had agreed to maintain the status quo.9 Mr Taueki continues to dispute the Rowing Club’s rights and this has led to a number of altercations between the Rowing Club members and him. He lives in a plant nursery building close by.
[8] On 27 March 2014, Mr Taueki was found by Police officers to have entered the Rowing Club building with the intention of removing gear belonging to the Club. At the time the Police arrived, Mr Taueki was loading the gear onto his truck. The officers asked him a number of questions, after reminding him that he had a right not
to answer. It was alleged by the Police that, after some discussion, Constable Johns
6 New Zealand Police v Taueki, above n 1, at [8]-[19], [51]-[53].
7 Taueki v Horowhenua District Council (2012) 294 Aotea MB 236 at [32(c)] and [32(d)].
8 Taueki v R [2013] NZSC 146, [2014] 1 NZLR 235 at [19].
9 Taueki v Horowhenua Sailing Club, Horowhenua Rowing Club and others (2013) 304 Aotea MB
288. This decision was upheld by the Māori Appellate Court in Taueki v Horowhenua Sailing
Club, Horowhenua Rowing Club and others [2014] Māori Appellate Court MB 60 (23 May
2014). The appellate judgment had not been released at the time of the offending.
put Mr Taueki under arrest for being unlawfully in a building. The Constable’s
evidence was that Mr Taueki acknowledged that he was under arrest.
[9] Following the alleged arrest, Mr Taueki asked the Police officers if he could visit the nearby plant nursery (where he lives) to collect some of his personal belongings before accompanying them to the Police Station. The officers agreed and Constable Daley gave evidence that he followed on foot as Mr Taueki drove his truck some 40 metres to the nursery. Once at the nursery, Mr Taueki made a phone call and then went to the back of the building to use the toilet. From there, however, Mr Taueki climbed out of the window and ran away.
Appeal against conviction
[10] Mr Taueki appeals against his conviction on the grounds that: (a) he was not in lawful custody;
(b) he did not believe he was in custody;
(c) the Judge made erroneous factual findings and should have accepted his evidence at trial rather than that of the Police officers; and
(d)the Judge relied on hearsay evidence to establish his knowledge that he was under arrest.
[11] The effect of s 232(2) of the Criminal Procedure Act 2011 is that the Court must allow Mr Taueki’s appeal if it is satisfied that Judge Hastings erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any reason. For the purposes of the section, miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the
outcome of the trial was affected or has resulted in an unfair trial.10
10 Criminal Procedure Act 2011, s 232(4).
[12] Proof of the offence of escaping from lawful custody requires the prosecution to establish, beyond reasonable doubt, that the defendant:
(a) was in lawful custody; and
(b) knew that he or she was in lawful custody; and
(c) escaped from such custody.
The District Court
[13] In the District Court, Judge Hastings directed himself as to the burden and standard of proof and the ingredients of the offence. The Judge stated the applicable principles correctly. He concluded that both the first and second elements of the offence were made out beyond reasonable doubt by reference to:
(a) an email sent by Mr Taueki on 31 March 2014 in which he said that he was sending the email “as I am on the run after escaping Police custody on the weekend”;
(b)the evidence of Constable Johns that he told Mr Taueki that he was under arrest, supported by a recording to that effect in the constable’s notebook; and
(c) the fact that Mr Taueki asked for permission to return to the nursery, from which the Judge inferred that he did not think he was free to go where he pleased.
[14] The Judge was satisfied that, although Mr Taueki was not physically restrained, he was nonetheless held in custody because his movements at that stage depended on the consent of the Police officers. The essence of the Judge’s findings about Mr Taueki’s state of mind was that he accepted the evidence of the Police officers in preference to that of Mr Taueki and drew an inference that Mr Taueki had the requisite knowledge and intent.
Mr Taueki’s submissions
[15] Mr Taueki says he simply told the Police he was going back to his home while they debated with a superior over the phone what charge should be laid. He argues on appeal that the Judge should not have found the Police officers’ evidence to be credible and submits that the Judge should have held, at least, that there was a doubt about whether Mr Taueki was actually in custody. He also said that he left the nursery by the bathroom window to avoid being apprehended. He said he knew that the Police were coming to get him, because of the numerous occasions on which he had been arrested and held in custody, sometimes for lengthy periods, on the basis of allegations of minor offending, only for the Police to withdraw the charges or for the charges to be dismissed by a court.
[16] Mr Taueki referred to an email he had sent out to people on a contacts list saying that he had “escaped from custody”, using quotation marks. He said the email produced to the Court had the quotation marks redacted and a lot was made of the fact that he had admitted escaping from custody. He said that what had happened was that his sister had actually been told that that is what he had been charged with, so when he sent the email on the Saturday to all the Waitangi Tribunal lawyers, he used, in quotation marks, “I had escaped from custody”.
[17] It does not appear that the email was produced as an exhibit in the District Court. Under cross-examination, however, Mr Taueki was shown a copy of it and asked to read the first line, which he did. The hearing transcript records him saying:
I am sending you this email from a clearing known to Muaupoko as I am on the run after escaping police custody on the weekend.
Discussion
[18] In his response, Mr Taueki made no reference to there being quotation marks around the words “escaping police custody”. It appears from the evidence he had not been charged with any offence at the time the email was sent.
[19] On the hearsay point, Mr Taueki did not clearly identify the subject of his complaint but it is clear that evidence of statements made by the defendant is admissible under s 27 of the Evidence Act and so the evidence was properly admitted.
[20] Mr Taueki also argued that there was evidence that a P pipe and drugs utensils had been planted on a desk in his room by the Police, and were located by Police the next morning, but that neither of the Police officers who were involved in his arrest the previous evening referred to the items. He says that casts doubt on their credibility. But those matters were not put to the District Court at the trial and there is no proper basis to take into account Mr Taueki’s reference to them in making his oral submissions on appeal.
Conclusion on conviction appeal
[21] I am satisfied that, with the advantage of seeing and hearing the witnesses, including Mr Taueki, at trial, Judge Hastings was well placed to make credibility findings. There was sufficient evidence to justify his conclusions that Mr Taueki was in lawful custody; that he knew that; and that he escaped.
[22] I am not persuaded by Mr Taueki’s arguments that any miscarriage of justice occurred in the entering of a conviction and I dismiss that appeal.
Appeal against sentence
[23] Mr Taueki did not pursue his appeal against the sentence, no doubt acknowledging that, if the conviction is upheld, the sentence was both available to the Judge and sympathetic.
Appeal against costs decision
[24] Mr Taueki acknowledged that, as a self-represented defendant, he was not entitled to claim costs for his own time in defending the charges.11 Nevertheless, he
11 R v Meyrick [2008] NZCA 45 at [16].
claimed costs under the Costs in Criminal Cases Act 1967 to recover the amount of an invoice from Ms Hunt, who appeared in the District Court, and again in this Court, as a McKenzie Friend. The sum claimed was $55,135.36, based on an hourly rate and an itemised account of the time spent on preparing and assisting with the presentation of Mr Taueki’s defences to the several charges.
[25] It is common ground that ss 5 and 6 of the Costs in Criminal Cases Act allow the award of costs to Mr Taueki both as an acquitted defendant and as a convicted defendant. Although the Court of Appeal held in R v Meyrick that the Act precludes an award of costs for a self-represented defendant, it was accepted by the prosecution and the Judge that disbursements may be recovered. Mr Taueki claimed Ms Hunt’s fees as a disbursement, arguing that his case required a great deal of investigative preparation and that assigned counsel under the legal aid scheme would not have had the resources to carry it out.
[26] Judge Hastings expressed reluctance to accept that argument, noting that they were costs that would normally be covered by a lawyer and saying that, as a self- represented litigant, Mr Taueki was precluded by R v Meyrick from recovering such. The Judge said, however, that a decision at appellate level on whether disbursements of the kind claimed by Mr Taueki were recoverable by him would be of assistance to District Courts around the country. Nevertheless, the Judge held that none of the criteria required to be established for awards under ss 5 or 6 were made out.
Discussion
[27] In addressing Mr Taueki’s application for costs, Judge Hastings correctly identified that different criteria applied to the costs claim related to the charges on which Mr Taueki was acquitted and the claim for costs in relation to the charge upon which he was convicted.
[28] Sections 5 and 6 of the Act provide:
5 Costs of successful defendant
(1) Where any defendant is acquitted of an offence or where the charge is dismissed or withdrawn, whether upon the merits or otherwise, the
Court may, subject to any regulations made under this Act, order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.
(2) Without limiting or affecting the Court's discretion under subsection (1) of this section, it is hereby declared that the Court, in deciding whether to grant costs and the amount of any costs granted, shall have regard to all relevant circumstances and in particular (where appropriate) to—
(a) whether the prosecution acted in good faith in bringing and continuing the proceedings:
(b) whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:
(c) whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:
(d) whether generally the investigation into the offence was conducted in a reasonable and proper manner:
(e) whether the evidence as a whole would support a finding of guilt but the charge was dismissed on a technical point:
(f) whether the charge was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:
(g) whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.
(3) There shall be no presumption for or against the granting of costs in any case.
(4) No defendant shall be granted costs under this section by reason only of the fact that he has been acquitted or that any charge has been dismissed or withdrawn.
(5) No defendant shall be refused costs under this section by reason only of the fact that the proceedings were properly brought and continued.
6 Costs of convicted defendant
Where any defendant is convicted but the Court is of the opinion that the prosecution involved a difficult or important point of law and that in the special circumstances of the case it is proper that he should receive costs in respect of the arguing of that point of law, the Court may, subject to any regulations made under this Act, order that
he be paid such sum as it considers just and reasonable towards those costs.
[29] Judge Hastings considered the matters the Court was directed to take into account by s 5(2), citing observations by Tompkins J in R v Gillespie.12 Judge Hastings referred to the “extensive history” of dealings between the Police and Mr Taueki and acknowledged that the charges on which he had been acquitted needed to be seen in the context of that history. The Judge considered that the Police should have been given an opportunity to address Mr Taueki’s submissions on that
point, but determined that:
(a) The receiving and drugs charges were withdrawn after Mr Taueki gave the Police information regarding the receiving charge and after the Police reviewed the legality of their search in respect of the drugs charges. The Judge said that the Police appropriately sought leave to withdraw those charges at the case review hearing.
(b)The Police had sufficient evidence to bring the Hokio Beach charges and took time to investigate issues surrounding land tenure. The Judge held that the Police investigation could not be considered unreasonable or improper, issues of self-defence and credibility being properly left to the Court to resolve.
(c) The Police did not act in bad faith.
[30] For these reasons, the Judge declined to make an award under s 5.
[31] With regard to the costs claim under s 6, relating to the charge of escaping from lawful custody on which Mr Taueki was convicted, the Judge properly determined that there was no difficult or important point of law at issue in the case. The Judge made no reference to special circumstances. There were none.
[32] Assuming for the purposes of the appeal that Ms Hunt’s fees could properly be claimed by Mr Taueki as a disbursement, I am satisfied Judge Hastings made no
12 R v Gillespie (1993) 10 CRNZ 668 (HC).
error in his approach to the exercise of his discretion under ss 5 and 6 and I am satisfied that no miscarriage of justice occurred. That is sufficient to dispose of the costs appeal.
[33] On that basis, it is unnecessary for me to come to a view about whether the cost of Ms Hunt’s assistance could properly be claimed by Mr Taueki as a disbursement, and any decision I came to would not be authoritative. The issue is best left for decision in a case where it would be determinative. Furthermore, it is one which is of some importance and the Court would benefit from argument from counsel both for prosecution and defence. Given that public funds would be at stake, it is arguably an issue on which the Solicitor-General might seek leave to intervene.
Result
[34] For the reasons given, I dismiss the appeals against conviction and the costs decisions.
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Toogood J
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