Taueki v Police
[2014] NZHC 3088
•4 December 2014
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2014-454-10 [2014] NZHC 3088
BETWEEN PHILLIP DEAN TAUEKI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 November 2014 Appearances:
Appellant in person
D R Davies for respondentJudgment:
4 December 2014
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] Following a Judge alone trial before Judge W K Hastings in the District Court at Levin on 7, 8 and 9 July 2014, Mr Taueki was found guilty of one charge of assault and not guilty of two charges of possession of an offensive weapon.1 On
20 August 2014, Judge Edwards convicted and discharged Mr Taueki. He has nonetheless appealed his conviction.
Background facts and District Court Decision
[2] Mr Taueki lives beside Lake Horowhenua on iwi land. The lake is used by the Lake Horowhenua Rowing Club (the club). The bed of the lake and the surrounding land to the north of a particular survey peg are vested in trustees on trust for the beneficial owners, one of whom is Mr Taueki.2 The land is waahi tapu. The
land to the south of the survey peg is controlled by a local Domain Board.
1 Police v Taueki DC Levin CRI-2013-031-169, 8 August 2014.
2 The judgment records at [38] that Mr Taueki has a 1/1789th beneficial interest in the land to the north of the peg.
TAUEKI v POLICE [2014] NZHC 3088 [4 December 2014]
[3] On 11 February 2013, five members of the club launched two boats onto the lake. Mr Taueki was alleged to have yelled abuse and brandished a baseball bat at the rowers after they launched their boats as they were moving away from the shore. That formed the basis of the first charge of possession of an offensive weapon. The rowers ignored Mr Taueki and continued training for approximately one hour. As they approached the shore at the end of their session they saw Mr Taueki again waving a baseball bat. That formed the basis of the second charge of possession of an offensive weapon.
[4] Mr Taueki then allegedly stood on the side of the lake and threw stones at the rowers. One of the stones was alleged to have hit one of the rowers, Mr Watson, on the thigh. That was the basis of the assault charge.
[5] The Police called evidence from each of the rowers, including Mr Watson. The Police also called evidence from an employee of Horowhenua District Council, the attending Police officers and the officer in charge. Mr Taueki called the Manawatu Police Area Commander, Inspector Handcock, and Mr Taueki’s sister, Ms O’Niell, a Lake Horowhenua trustee. Mr Taueki also gave evidence on his own behalf.
[6] The primary evidence in relation to the assault charge was from Mr Watson who said that as he was coming out of the lake, Mr Taueki started to throw stones in his direction. He said Mr Taueki then put down the bat he had been holding and threw a rock that hit him in the thigh. He provided photographs of a graze and swelling on his leg. Another rower, Ms Parker, gave evidence that the rocks were roughly the size of a rock melon, and noted in her handwritten statement that a rock had hit Mr Watson. A further rower, Ms Watson, said she did not realise that Mr Watson had been struck by the rock but said that she saw swelling on his leg.
[7] Judge Hastings traversed the evidence and determined that Mr Watson had been hit by a rock thrown by Mr Taueki:3
Mr Taueki invited me to speculate that the injury was caused by something else, such as a boat or a dump or an oar scraping his leg when he left the
3 Police v Taueki, above n 1, at [67].
lake. When this was put to Mr Watson he flatly denied it. I heard no evidence that the injury got there any other way. The only evidence I heard was that the jury was caused by a stone thrown by Mr Taueki that landed on Mr Watson’s leg, causing an abrasion and swelling sufficient for an ambulance to eventually be called. Even Mr Taueki conceded, “Well Mr Watson may have walked into one [a stone], yes”.
[8] The Judge also held that Mr Taueki intended to hit Mr Watson with the stone and thus the elements of the assault charge were made out. The defence of self defence was not available to Mr Taueki because the evidence did not indicate that he believed he was under any real threat:4
Although he came within a metre and a half of Mr Taueki, I find it hard to believe that a man walking through water burdened with a boat on his shoulder and carrying oars in his hand could be perceived to be sufficiently threatening to warrant a stone being thrown at him. The items that Mr Watson was carrying would certainly have diminished the appearance of any threat to use force as well as his actual ability to use the oars in a manner threatening to Mr Taueki.
Events following 11 February 2013
[9] Mr Taueki’s trial did not occur until July 2014. He was initially arrested on
11 February 2013 (the day of the incident on the lake) and was held for 18 hours before being released. He was provided with disclosure material on 14 February
2013, 1 April 2013, 19 August 2013 and 2 September 2013. The disclosure material included formal written statements for each of the prosecution witnesses, supporting Police notebook entries and photograph booklets. Handwritten statements were disclosed to Mr Taueki on 14 February 2013.
[10] Between his arrest and the trial, Mr Taueki was on bail for some 14 months following the incident in February 2013. He then spent approximately two months in custody5 and was released on electronically monitored bail two months prior to the trial.
Grounds of appeal
[11] Mr Taueki advances three grounds of appeal. First, that his initial detention for 18 hours and the electronically monitored bail conditions that were imposed on
4 At [74].
5 The remand in custody related to other alleged offending whilst on bail.
him following his release in June 2014 prevented him from producing evidence that was crucial to his defence and therefore seriously prejudiced his right to adequate time and facilities to prepare a defence6 and his right to observance of the principles of natural justice.7
[12] Second, “despite [Mr Taueki’s] protests” the Police did not secure the crime scene and, as a result, Mr Taueki’s baseball bat and camera (containing photographs) were taken from his unlocked car and the car was vandalised. Mr Taueki’s complaint appears to be that the Police failed to exercise their authority under s 8 of the Search and Surveillance Act 2012 and that they should have entered without a warrant to avoid loss of evidential material.
[13] Third, Mr Taueki challenges the finding that he did not act in self defence when he threw the stone. He cites his own evidence that he had been assaulted by the rowers before 11 February and following the incident, and also received death threats.
Standard on appeal
[14] The relevant charges were laid prior to the commencement of the Criminal Procedure Act 2011. Mr Taueki has exercised his right to a general appeal pursuant to s 115 of the Summary Proceedings Act 1957. His appeal is conducted as a rehearing. The Court is required to review all of the evidence and reach its own view. In Austin, Nichols & Co Inc v Stichting Lodestar, the Supreme Court
explained that those who have general rights of appeal are entitled to have:8
(a) the appellate court come to its own view on the merits of the case; and
(b)their conviction overturned if the appellate court believes the lower court decision was wrong, even if that assessment involves an
evaluation of fact and judgement.
6 New Zealand Bill of Rights Act 1990, s 24(d).
7 Section 27(1).
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
[15] Mr Taueki’s conviction can only be overturned if the Court reaches the conclusion that the decision of Judge Hastings was wrong, thus resulting in a miscarriage of justice.
Inadequate opportunity to prepare his defence
[16] This was the primary ground of appeal. Mr Taueki submitted that the restrictive bail conditions that applied prevented him from relying on a transcript of a hearing before Judge Atkins on 21 February 2013, when cross-examining the rowers about the location and nature of the incident on 11 February 2013. Mr Taueki claimed that he would have used this transcript to undermine the evidence given by Ms Parker and her credibility in general. On the earlier occasion, she had been equivocal as to whether the rowers had come ashore north or south of the demarcating peg. At the hearing of the present charge, her evidence was that they were to the south. Mr Taueki also claims he did not have access to a diary that recorded a number of incidents between himself and the rowers.
[17] This ground of appeal has little merit. Mr Taueki was on bail for 14 months following the 11 February 2013 incident and had ample opportunity to access the transcript and his diary. I do not accept that Mr Taueki’s opportunities to prepare were substantially less because of his expectation that the charges would be dropped. That was hardly a reasonable expectation, and in any event any such doubt would be dispelled when he was advised in writing on 24 March 2014 that the charges would be proceeding to a defended hearing in the week of 7 July 2014.
[18] Further, the material would not have altered the outcome of the trial. The Judge did not place any prominent reliance on Ms Parker’s evidence in relation to the location of the alleged assault. Her evidence was consistent with that of others of the rowers. In cross-examining Ms Parker, Mr Taueki made no attempt to challenge her on the alleged inconsistency with the evidence she had given before Judge Atkins on the prior occasion. Nor did he make any application during the hearing before Judge Hastings for access to the earlier transcript, which might well have been available for him.
[19] The apparent relevance of the mislaid diary was that it recorded the occasions prior to the relevant incident when Mr Taueki had confronted rowers whom he considered to be trespassing on the land of which he is a beneficial owner. The diary may have provided some form of corroboration for Mr Taueki’s position that he had been confronted by the rowers previously and might therefore support his impression that he could be vulnerable to attack from them. However, it is unlikely that such form of corroboration would have made any material difference to the Judge’s assessment of Mr Taueki’s credibility on his claim to self-defence.
[20] Accordingly, I am not satisfied that the concerns raised by Mr Taueki deprived him of the ability to adequately prepare his defence.
Police neglect of Mr Taueki’s interests
[21] A second ground for the appeal was that the Police had failed to secure Mr Taueki’s property after his arrest on the day of the incident, implicitly thereby prejudicing his interests in respects that adversely affected the preparation of his defence. In particular, Mr Taueki left his unlocked car near the site of his arrest, which was subsequently vandalised. A camera he had used to take photographs and the baseball bat he had been holding during part of his interaction with the rowers went missing.
[22] There was no cogent basis for attributing responsibility to the Police at the scene for securing those items, nor could I discern any relevant connection between their loss and the ability of Mr Taueki to conduct his own defence in the District Court.
Challenge to factual findings
[23] The third ground of appeal sought to challenge the basis for adverse factual findings made by Judge Hastings. The main component of this was the Judge’s rejection of Mr Taueki’s claim that he acted in self-defence. His oral argument also focused on an alleged error by the Judge in his finding as to where Messrs Taueki and Watson were located when Mr Taueki threw the rock or stone that hit Mr Watson.
[24] The Judge’s finding on self-defence included the following:9
Mr Taueki said that he thought Mr Watson might use the oars as weapons against him and threw the stones in his direction to deter him. Although he came within a metre and a half of Mr Taueki, I find it hard to believe that a man walking through water burdened with a boat on his shoulder and carrying oars in his hand could be perceived to be sufficiently threatening to warrant a stone being thrown at him. The items that Mr Watson was carrying would certainly have diminished the appearance of any threat to use force as well as his actual ability to use the oars in a manner threatening to Mr Taueki.
I find that Mr Taueki has not made out the defence of self-defence because the evidence does not show that Mr Taueki believed that Mr Watson posed a threat to him. Having found that Mr Taueki assaulted Mr Watson with a stone causing him bodily harm, the defence of land is also not available on the assault charge. …
[25] The Judge also observed that Mr Taueki had not purported to be acting in self-defence during his evidence, but rather that his actions were in terms of defence of land, and not that his actions were a response to any perceived threat of force from Mr Watson.
[26] I agree with the Judge that the circumstances of the interaction between the rowers and Mr Taueki as he found them to be renders it improbable that Mr Taueki had any genuine perception of a threat that Mr Watson was going to assault him. During oral argument, I questioned Mr Taueki as to the basis for any such perceived threat. He appeared to accept that the threat was a contingent one in that Mr Watson might put down the rowing skiff that he was carrying above his arms, and then (possibly having also put down one of the oars) use a single oar to assault Mr Taueki. A threat in that context is not credible.
[27] Mr Taueki also spent considerable time arguing that the Judge should have found the assault occurred in the area to the north of the peg demarcating domain land from the iwi land of which Mr Taueki is one of the beneficial owners. That factual aspect cannot affect whether or not Mr Taueki was acting in self-defence. It was relevant to the second of the two charges of being in possession of an offensive weapon, where Mr Taueki claimed that he made threats of force to prevent a trespass on that land. However, inflicting bodily harm or striking someone is not within the
forms of reasonable force that can be used by anyone in peaceable possession of land to prevent a trespass on that land.10 Mr Taueki made much of the alleged error by the Judge in finding that Mr Watson had come ashore to the south of the relevant peg. However, even if I was persuaded that the Judge was wrong in that factual finding so that Mr Watson was to be treated as coming out of the water on the north side, that would not add materially to the analysis of whether Mr Taueki’s striking
Mr Watson by throwing a rock at him was an act of self-defence. [28] Accordingly, for these reasons the appeal is dismissed.
Dobson J
Solicitors:
Crown Solicitor, Palmerston North
Copy to:
P D Taueki
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