Taueki v R

[2012] NZCA 428

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA383/2011
[2012] NZCA 428

BETWEEN  PHILIP DEAN TAUEKI
Appellant

AND  THE QUEEN
Respondent

Hearing:         13 August 2012

Court:             Arnold, Ellen France and Fogarty JJ

Counsel:         Appellant in person
J E Mildenhall for Respondent

Judgment:      21 September 2012 at 10 am

JUDGMENT OF THE COURT

AThe application to adduce new evidence in the form of the affidavit of Philip Taueki of 18 July 2012 is granted.

BThe appeal against conviction and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No
Introduction  [1]
Background  [4]
Facts  [15]
Decision of District Court Judge  [22]
Conviction for assault of Anthony Brown  [31]
      Submissions  [35]
      Our evaluation  [41]
Conviction for assault of David Brown by punching  [55]
Result  [62]

Introduction

1. Philip Taueki was convicted after a trial by judge alone on two counts of assault against members of the Horowhenua Sailing Club as they were about to embark on a day’s sailing on Lake Horowhenua.  Mr Taueki was found not guilty on a third assault charge.[1]  Mr Taueki was sentenced by the trial judge, Judge Atkins QC, to 60 hours community work.[2]  He appeals against conviction and sentence.

   [1]      R v Taueki DC Palmerston North CRI-2010-031-1588, 11 May 2011 [reasons judgment].

   [2]      R v Taueki DC Palmerston North CRI-2010-031-1588, 25 May 2011 [sentencing remarks].

2. In defending the first of the two charges, Mr Taueki said he was in peaceable possession of the land on which the assaults occurred so as to avail himself of the defence in s 56 of the Crimes Act 1961 of “defence of land or building”.  In relation to the second charge, Mr Taueki’s defence was that he had not acted intentionally.

3. On appeal, the question is whether the Judge was correct in rejecting both defences.

Background

1. In order to set the facts in context, we need to say a little about the status of Lake Horowhenua and the surrounding area and about Mr Taueki’s relationship with the lake and its environs.

2. Mr Taueki is a member of the Muaupoko iwi whose members, as we shall discuss, are the owners of the lake bed and relevant land.  For these purposes, the starting point is the Reserves and Other Lands Disposal Act 1956 (the 1956 Act).  Section 18(2) of that Act declared the bed of Lake Horowhenua, the islands in the lake, the dewatered area and the strip of land one chain in width around the original margin of the lake to be “and to have always been owned by the Maori owners”, that is, the Muaupoko iwi.  The lake bed, islands and the other areas described, were vested in trustees appointed by the Maori Land Court in trust for the Maori owners (the Horowhenua Lake Trustees).[3]  It is accepted that Mr Taueki is a beneficial owner.

   [3]The Maori Land Court’s order was dated 8 August 1951.  Trustees were first appointed on 19 October…