Taueki v Police

[2015] NZHC 2809

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2014-454-000010 [2015] NZHC 2809

BETWEEN

PHILIP DEAN TAUEKI

Applicant

AND

NEW ZEALAND POLICE Respondent

Hearing:	22 October 2015
Appearances:	Applicant in person (with A Hunt, McKenzie Friend) E M FitzHerbert for respondent
Judgment:	12 November 2015

RESERVED JUDGMENT OF DOBSON J

[1]      Following a Judge alone trial in the District Court at Levin on 7, 8 and 9 July

2014, Mr Taueki was found guilty on one charge of assault.  He was found not guilty on two charges of possession of an offensive weapon.1    He was subsequently convicted and discharged on the assault charge.

[2]      On 4 December 2014, I dismissed Mr Taueki’s appeal against his conviction.2

Mr Taueki has now applied for leave to appeal to the Court of Appeal.

[3]      The proceedings were commenced before 1 July 2013, so the appeal to the

High Court was a general one pursuant to s 115 of the Summary Proceedings Act

1957, and the present application for leave is to be governed by s 144 of that Act. Pursuant to s 144, the High Court may grant leave if the application raises a question of law which, by reason of its general or public importance or for any other reason,

ought to be submitted to the Court of Appeal for a second appellate decision.

1      Police v Taueki DC Levin CRI-2013-031-169, 8 August 2014.

2      Taueki v Police [2014] NZHC 3088.

[4]      Mr Taueki filed two sets of written submissions in support of his appeal, and also filed an application for leave to adduce fresh evidence on the hearing of a second appeal if leave was granted.   His submissions focused predominantly on criticisms of factual findings made by the District Court Judge, which I upheld in my decision.

[5]      Before the hearing of Mr Taueki’s application, he had been provided with a copy of the written submissions on behalf of the Police opposing leave, in which the requirement for him to make out a question of law that was of general or public importance was spelt out in some detail.  At the outset of the hearing, I endeavoured to explain to Mr Taueki the onus that he had to discharge, and he indicated that he understood that onus.

[6]      Despite   those   indications,   Mr Taueki’s   oral   submissions   reflected   his arguments before me on the hearing of the original appeal, and his written submissions in support of the present application for leave.   To appreciate the distinction between Mr Taueki’s determination to pursue a second appeal, and the prospects of such an appeal giving rise to a question of law of general or public importance, a little factual background is necessary.

Factual background

[7]      Mr Taueki  lives  on  land  beside  Lake  Horowhenua  that  is  the  beneficial entitlement of an iwi with which he affiliates.3   He has been one protagonist in a very long-running dispute over the extent and nature of use made of the lake by others, in particular the Lake Horowhenua Rowing Club.  A particular survey peg at the lake’s edge defines the boundary of the iwi’s land which is waahi tapu.  The land to the south  of  the  survey peg  is  controlled  by  a  local  domain  board  which,  at  least implicitly, authorises the use made of the lake by the rowing club.

[8]      There have been a number of altercations between Mr Taueki and rowers.  On the day giving rise to the present charge, in February 2013, Mr Taueki protested at a

group of rowers when they began using the lake, and also when the rowers returned

3      The District Court Judge noted that Mr Taueki has a 1/1789th  beneficial interest in the land where he resides.

to the shore of the lake.   His interaction with them in going into the water and coming out gave rise to two charges of possession of an offensive weapon, both of which were dismissed.

[9]      However, as the rowers returned to shore, Mr Taueki threw a rock that the District Court Judge found to have struck one of the rowers, and that comprised the basis of the assault charge.

[10]     There was a conflict in the evidence between the complainant rower who had been struck, and Mr Taueki, who gave evidence in his own defence.   The District Court Judge preferred the version of events described by the rower, finding that he had been struck by a rock thrown by Mr Taueki, and that Mr Taueki’s conduct was intentional, so as to comprise the elements of an assault.

[11]     After hearing the appeal, I was satisfied that there were more than sufficient grounds for the District Court Judge to make the factual findings that he did.

Grounds of the first appeal

[12]     On  the  appeal  before  me,  Mr Taueki  argued,  first,  that  the  terms  of  his remand  in  custody  and  subsequently  the  constrained  terms  of  electronically monitored bail prejudiced his right to adequately prepare his defence.  Secondly, he argued that the Police had breached his rights by not adequately securing the scene at which the alleged assault had occurred, which resulted in items being taken from his unlocked car and the car being vandalised.  Thirdly, Mr Taueki argued that the Judge erred in finding that he had not acted in self-defence.

[13]     I dismissed each of those grounds.

Question of law justifying a second appeal?

[14]     The focus of Mr Taueki’s concerns in pursuing a second appeal remains his complaint that a remand in custody, and the restrictive terms of electronically monitored bail, precluded him preparing adequately for the original hearing.

[15]     I dealt with this ground of appeal, finding as a matter of fact that Mr Taueki had an entirely adequate opportunity to prepare his defence to the original charge.

[16]     Mr Taueki’s application to adduce further evidence relates to content in a programme made for Māori Television during the period in which he was on electronically monitored bail.  Mr Taueki would argue that the images of him in that programme corroborate his claim that the extent of constraint on him precluded his obtaining evidence that would have enabled him to better challenge the credibility of the rowers.

[17]     Mr Taueki sought to compare his case with that of Banks v R, in which the Court of Appeal allowed fresh evidence from Mrs Banks as to the circumstances in which a particular lunch had occurred, notwithstanding that the evidence was not “new” in the usual sense.4     Mr Taueki takes from that decision that the relative importance of the evidence justifies it being adduced on appeal, and that it could be sufficiently important to justify a second appeal.

[18]     That analogy is misconceived.   The Court of Appeal’s reasoning cited by Mr Taueki was about the extent of dispensation from the requirement that evidence be fresh that was justified in the circumstances that it impacts on the safety of a conviction against Mr Banks and where its exclusion risks a miscarriage of justice.5

That reasoning cannot help Mr Taueki elevate the importance claimed for the new evidence on the subject  for which he would  rely on it.    His complaints at the inadequacy of his opportunity to prepare his defence have been thoroughly assessed twice, and it does not challenge the safety of his conviction such that a miscarriage of justice would result from excluding the proposed evidence.

[19]     Having tested all of Mr Taueki’s arguments to assess whether they might constitute a question of law, I am satisfied that none arise.  I am also satisfied that if I have mischaracterised any of the issues that I treat as ones of fact, as comprising elements that could be characterised as questions of law, then they are nonetheless

not questions of general or public importance.

4      Banks v R [2014] NZCA 575.

5 At [28].

[20]     Accordingly, the application for leave to appeal to the Court of Appeal is dismissed.

Dobson J

Solicitors:

Crown Solicitor, Palmerston North

Copy to:

P D Taueki