Taueki v R
[2012] NZCA 428
•21 September 2012
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA383/2011 [2012] NZCA 428 |
| BETWEEN PHILIP DEAN TAUEKI |
| AND THE QUEEN |
| Hearing: 13 August 2012 |
| Court: Arnold, Ellen France and Fogarty JJ |
| Counsel: Appellant in person |
| 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
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].
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.
On appeal, the question is whether the Judge was correct in rejecting both defences.
Background
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.
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 1898: (1898) 37 Otaki MB 10.
The 1956 Act went on to reserve public access over the dewatered area and one chain strip adjacent to Muaupoko Park (an area purchased from the iwi by the Crown).[4] The surface waters of the lake, together with the lake bed, the park, the dewatered area and one chain strip adjacent to the park were “public domain”.[5] The Minister of Conservation was to appoint a Domain Board to control the domain.[6] Although the Board was to be appointed in accordance with the Reserves and Domains Act 1953, the 1956 Act went on to specify the membership of the Board, which was to include four persons appointed by the Minister on the recommendation of Muaupoko.[7]
[4] Reserves and Other Lands Disposal Act 1956 [1956 Act], s 18(4).
[5] 1956 Act, subss 18(5) and (13).
[6] 1956 Act, s 18(7).
[7] 1956 Act, s 18(8).
The Horowhenua Lake Trustees granted a lease in perpetuity to the Crown in 1961 over a section of the lake bed adjacent to Muaupoko Park for use as part of the Domain.
In 1961 the Horowhenua Sailing Club was granted a licence to occupy and to erect a boating club pavilion by the Domain Board over a parcel of land within the domain. The licence covered an area including parts of the leased lake bed, the dewatered area and one chain strip. The club pavilion was built partly on the dewatered area and one chain strip. The licence was for a 21 year term with a right of renewal for a further 21 years. The licence expired in mid-2003.
In 1981, the lake, Muaupoko Park and land between the two became a “recreation reserve” subject to the Reserves Act 1977 (the successor to the Reserves and Domains Act 1953).
It now appears to be common ground that the sailing club could not acquire a new licence on the same terms as previously. That is because the leasing provisions in s 54 of the Reserves Act do not apply to the Domain Board in respect of the Maori-owned land. The Domain Board allowed the sailing club to continue to use the land and building, apparently on a month by month basis. Again, it now appears to be accepted that there was no power to effectively attempt to roll over the terms of the previous licence in this way. Rather, in terms of s 53 of the Reserves Act, the Board’s power is to grant limited exclusive use rights.[8]
[8] In particular, any periods of exclusive use are not to exceed six days consecutively at any time.
We note also that, over the relevant period, the Domain Board was without its full membership. That was because Muaupoko had not nominated its four representatives.
The other aspect of the legal background we should mention is the bylaw made in 1996 by the Domain Board.[9] The bylaw was made under the Reserves Act. It states that subject to the provisions of the bylaws, the reserve is open to the public at all times except during those periods that the Board decides the reserve is to be closed to the public.[10]
[9]Horowhenua Lake Domain Board, Domain Bylaw 1996. The hearing before us proceeded on the basis that the bylaw was still in force.
[10] Clause 2; see also Reserves Act 1977, s 17(2)(a).
The relevant condition is set out in cl 19(3) of the bylaw which provides:
No person shall use … a boat driven by a motor engine on Lake Horowhenua except with the prior written consent of the Board … but except for rescue purposes no consent shall be given by the Board in respect of a boat driven by a motor engine which the Board determines can reasonably [be] described as a speed boat unless the Board has first obtained … the prior written approval of the Horowhenua Lake Trustees.
Finally we note that, since 2004, Mr Taueki has lived on a property by the lake.
Facts
The Judge heard evidence from a number of witnesses, including the two complainants, Anthony Brown, and his son, David Brown. The appellant also gave evidence.[11] For present purposes, we can largely limit our discussion to the facts as the Judge found them.
[11] The appellant represented himself but Mr O S Winter was appointed as counsel assisting.
The relevant events took place on 14 September 2008. Members of the sailing club were at the pavilion preparing for a day’s racing. Anthony Brown was the club’s race officer. He was preparing the rescue boat for launching. Judge Atkins explained what happened after Mr Taueki arrived at the club on that day as follows:[12]
… Mr Taueki sighted persons about to engage in activity on or about the lake and went to the scene because he was concerned about the use of a boat, which was a motorised boat which was termed by the club members a rescue boat. He was concerned, apparently, for two reasons. One, because in his view, it amounted to a speed boat, in respect of which type there was a prohibition. Secondly, and more importantly I think, from his point of view, he was concerned that he felt that the boat had not been properly cleaned before it went onto the lake. On arriving at the scene, Mr Taueki moved towards those involved from the sailing club and he took Mr Anthony Brown by the shoulders and shook him. That action amounts to an intentional application of force, and that was the nature of the first assault in respect of which he was found guilty.
[12]Sentencing remarks, above n 2, at [8].
The other count on which Mr Taueki was convicted was an allegation of punching David Brown. This incident followed after Mr Taueki had gone into the pavilion saying he was going to take it over and evict the club. David Brown had followed him inside and they met on the stairs. David Brown said that Mr Taueki kicked him in the chest. Mr Taueki said that he put his foot out to defend himself against David Brown who was advancing towards him up the stairs.
David Brown dialled 111 and went outside. Mr Taueki, who was by then on the balcony of the pavilion, was offended by David Brown’s gestures while on the phone and by his reference to Mr Taueki as a “Maori bastard”. It appears that by this point both men were quite angry.
Mr Taueki said he warned David Brown that if he continued to abuse him then Mr Taueki would evict him from the property. David Brown continued to abuse him so he came outside. We interpolate here that Judge Atkins was satisfied that at this point Mr Taueki was intending to remove David Brown from the reserve because he was annoyed by his disapproval rather than by any possible damage to the lake.
What occurred next took place outside of the pavilion. Of this incident the Judge said:[13]
… There was evidence given about that from the Browns themselves. Their evidence was as to a number of blows struck by Mr Taueki. In reaching my conclusion in relation to that charge, I did not rely on the evidence of either of the two Browns. The evidence on which I relied was of a Mr [Kent] Copplestone, who gave evidence not of a number of punches, but of - he thought - just the one. There was no doubt that a blow had been struck, and he thought it was just the one. ...
[13] Sentencing remarks, above n 2, at [10].
As we have indicated, the Judge found that the third charge, of assault against David Brown, not proved. This charge related to what had occurred on the stairs inside the pavilion. The Crown had not proved that the appellant was not acting in self defence.
Decision of District Court Judge
In terms of the assault of Anthony Brown, Mr Taueki accepted that he had intentionally applied force. The Judge accordingly moved to consider the defence based on s 56 of the Crimes Act. That section provides that persons “in peaceable possession” of any land or building are justified in using reasonable force to prevent a person from trespassing on the land or to remove that person, “if he does not strike or do bodily harm to that person”. In respect of s 56, the Judge adopted the approach taken in the Canadian case of R v Bornwith a Tooth[14] referred to by this Court in R v Haddon.[15] From those cases, Judge Atkins said that in order to have peaceable possession it was sufficient for the defendant to have “actual control of the property” and “for the asserted peaceable possession to be not seriously challenged by others”.[16]
[14] R v Bornwith a Tooth (1992) 4 Alta LR (3d) 289, 76 CCC (3d) 169 (Alta CA).
[15] R v Haddon [2007] NZAR 135 (CA).
[16] Reasons judgment, above n 1, at [149].
The Judge went on to say that the Crown, the Domain Board and the sailing club were not acquiescing in the possession of the land claimed by Mr Taueki, that is, possession of a kind which entitled him personally to unilaterally eject members of the public. Judge Atkins noted Mr Taueki’s acknowledgement in his evidence that the club, with the Board’s consent, had had a “lease” over the land at least at some point and the club had used the land as a base for a number of years. The Judge said Mr Taueki “further appeared to acknowledge” the club may have had rights in relation to the land but that these were subject to compliance with the relevant bylaws.[17] The Judge said this:[18]
By way of summary there was insufficient material to enable Mr Taueki to form a justified suspicion that there would be a breach of Bylaw 19(3) because, first, there was insufficient basis to suspect that the boat was a speed boat and, second, if it was a speed boat there was insufficient basis at the time to suspect that there had not been written consent from the Board. Further, there was nothing available to Mr Taueki at the time to justify a reasonable suspicion that the boat constituted a risk in terms of it not being washed down prior to being brought to the place at which he first observed it, just as there was nothing to suggest that the boat had in the interim been used anywhere other than the lake itself. Given these considerations, even assuming that in the event of sufficient grounds for suspicion Mr Taueki would be able to evict – which, particularly in light of Mr Stevens’ evidence,[19] is doubtful – Mr Taueki would have no proper foundation from which to evict the Sailing Club Members as trespassers and in fact he did not at the time purport to do so on that basis. …
[17] At [150].
[18] At [155].
[19]Mr Stevens was chairman of the Lake Horowhenua Trust, which was looking after aspects of the lake ownership. He confirmed Mr Taueki had a guardianship role in relation to the lake. But, he said, Mr Taueki did not have authority to evict anyone from the lake.
By way of a further summary, the Judge said he was satisfied beyond reasonable doubt that Mr Taueki intentionally applied force to Anthony Brown and he was satisfied beyond reasonable doubt that Anthony Brown was not trespassing on the land either before or after Mr Taueki encountered him.
Although it was not strictly necessary for him to decide whether Mr Taueki could properly be described as being “in peaceable possession” of the land, Judge Atkins concluded that Mr Taueki was not in peaceable possession because the Crown, the Board and the sailing club were not acquiescing in his claims.
The Judge also rejected an argument based on s 58 of the Crimes Act. That section deals with the ability to peaceably enter onto land for the purpose of exercising a right of way.
Finally, the Judge concluded in relation to this charge that even if Mr Taueki had been justified in using force, the force that he used could not be seen as reasonable. That was because, without asking Anthony Brown to leave, Mr Taueki took hold of the front of his jersey and attempted to pull him off the boat, which was at that time some distance from the water. The Judge said that the issue concerning Mr Taueki was not of “such immediacy” as to justify pulling Mr Brown from the boat particularly given that he would be likely to descend from the boat before moving closer to the lake in order to launch it.[20]
[20] At [158].
In terms of the second assault involving David Brown, the Judge said he was inclined to accept that the injuries were not intentional, which would afford Mr Taueki a defence to a charge of assault with intent to injure. However, that finding did not amount to a finding that the assault occasioning the injuries was unintentional.
After discussing the evidence from the Crown witnesses, the Judge said this:
[164] I do not dismiss the claims of the Crown witnesses to whom I have referred, but I regard them as likely to be considerably inflated. I am strengthened in this view first by the evidence of Margaret Feek … in which she indicated some uncertainty, being unsure whether Mr Taueki and David Brown were just grabbing at each other or were actually punching one another; and, second – and more strongly – by the evidence of Kent Copplestone who said that he was not a member of the Sailing Club but sailed at the lake on club days. His evidence … was that he heard words between “David Brown and Philip” and then saw Philip Taueki take “a swing” at David Brown which, he said, connected with David Brown’s face or cheek. Asked by Ms Sinclair [the Crown prosecutor] if he had seen more than one swing his response was … :
Um, just one, yeah, I think there was just one.
In response to Mr Winter [counsel assisting] he confirmed that at this point there was one punch and there was not “a flurry of blows”. He also said that he saw Mr Taueki coming out of the club pavilion, but he had not seen Mr Taueki chasing David Brown around a small boat three or four times, as David Brown had claimed.
[165] The evidence of Kent Copplestone satisfied me beyond reasonable doubt that Mr Taueki punched the cheek or jaw of David Brown and that this was intentional. This involves a rejection of the evidence of Mr Taueki to the effect that he struck no blow, although he did concede placing David Brown in a head lock which – rejecting as I do, his suggestion that this was self defence – would itself amount to an assault. I discount Mr Taueki’s claim that he struck no blow. Possibly as a result of a strong belief in the righteousness of his cause Mr Taueki was inclined on occasion to overstate. The evidence of Mr Copplestone was straightforward and the way he delivered it satisfied me beyond reasonable doubt that on the question of whether a blow was struck by Mr Taueki he was truthful. His evidence was also in some measure supported by the evidence of Anthony Brown, David Feek, and David Brown. I have made some criticism of the evidence of these three witnesses but allow it some weight when assessing the evidence of Kent Copplestone. I was not, however, satisfied that there was more than one blow because, for reasons already indicated, the evidence of the other witnesses was such as to lead me to suspect exaggeration when it came to the actions of Mr Taueki and the minimisation when it came to the actions of David Brown.
As we have indicated, the Judge concluded that the Crown had not negated self defence in relation to the third count.
Conviction for assault of Anthony Brown
The Judge stated:[21]
[86] Mr Taueki accepted that Anthony Brown was on the boat when Mr Taueki went up to him and he agreed that Anthony Brown had not obstructed his way. He also agreed that at the time of the event he was quite angry with what was happening and that he had pulled Anthony Brown by the shirt “to evict him”. He agreed that he had applied force to Anthony Brown and that this application of force was intentional.
[21] Reasons judgment, above n 1.
We agree with the Crown that this means that the only issue in relation to this count is whether the Judge was correct to find that there was no defence under s 56 of the Crimes Act.
Section 56 is one of a number of provisions in the Crimes Act under the heading, “Defence of Property”.[22] Section 56 provides as follows:
56 Defence of land or building
(1)Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.[23]
[22]The other sections are ss 52–55. They are followed by ss 57 and 58 which are under the heading, “Peaceable entry”.
[23]Subsection (2) was repealed by the Crimes Amendment Act 1980, s 2(2), as from 1 January 1981.
We turn then to the parties’ submissions on the appeal.
Submissions
Mr Taueki says the Judge was wrong to approach s 56 on the basis that it did not apply unless possession was acquiesced in by all parties. In developing that submission Mr Taueki submits that it is wrong to apply the Canadian approach in R v Born with a Tooth because that ignores the unique position in New Zealand given the Treaty of Waitangi. In terms of the Treaty, Mr Taueki says he has full and undivided possession of the land.
In further support of his submission that he was in peaceable possession, Mr Taueki says that he is both an owner and occupier of the area in question and has particular responsibilities as kaitiaki (guardian) of the lake. In these circumstances, he contends that it was reasonable for him to act to protect the lake from irreversible damage by those who had failed to comply with the conditions attaching to their use of the lake, particularly in terms of the bylaw. Mr Taueki points out that there were no washing down facilities by the lake. Further, Mr Copplestone confirmed in his evidence that he had not been required to wash his boat. In this context, Mr Taueki says that Lake Horowhenua is whenua parekura, a sacred place where many of his ancestors died in battle and their bodies rest on the lake bed. The right of the owners to protect their significantly culturally sensitive property from unreasonable and insensitive behaviour remains. Mr Taueki points in this respect to the problems that have arisen in terms of pollution of the lake.
Mr Taueki also emphasises the developments since the matter was heard. In this context, he sought leave to adduce further evidence in the form of an affidavit from himself and other materials which had come to light after the hearing. There was no opposition to this course from the Crown and we grant leave to adduce this evidence.
Of particular significance in terms of the subsequent developments is a joint memorandum of counsel for Mr Taueki and the Director-General of Conservation made in the context of proceedings brought in the Maori Land Court by Mr Taueki in relation to the lake.[24]
[24] The memorandum is dated 22 November 2011.
In that memorandum counsel record that under s 53(1)(f) of the Reserves Act, the Domain Board has an ability to enter into agreements for use of the reserve for any term not exceeding ten years subject to the limitations that any periods of exclusive use do not exceed six days consecutively at any time and that any prohibition on entry except under payment of a charge does not exceed 40 days in any year. Importantly, for present purposes, Mr Taueki refers to the agreement in the memorandum that the leasing powers in s 54 of the Reserves Act do not apply to the Domain Board in respect of Maori-owned land. That is because the part of Maori‑owned land which is under the control of the Board is not vested in the Board, being an administering body. Mr Taueki says this shows he was right that the sailing club had no lease. In any event, the fact that the Board was defunct and the statutory trustees had died meant that there could be no reliance placed by the sailing club on anything that the Board had purported to do.
The Crown supports the approach taken by the Judge and says that the Judge was correct to find that Mr Taueki was not in peaceable possession of the land in terms of s 56.
Our evaluation
Section 56 has a long pedigree. The Royal Commission of 1879 on the law relating to Indictable Offences noted that, in the main, the provisions in the draft code (Criminal Code (Indictable Offences) Bill 1879) dealing with the circumstances justifying the application of force to a person against his or her will embodied the common law. Section 56 in its present form in relevant respects reflects the provision in the English draft code of 1879.
The Crimes Bill 1989 would have removed the defence of peaceable possession and replaced it with a provision that referred to persons in “lawful occupation” or possession of a dwelling house, land or other premises being justified in using reasonable force to prevent or remove any trespassers. The Report of the Crimes Consultative Committee (the Casey Committee Report) recommended that the term “lawful” be replaced by the term “peaceable”.[25] The Committee was concerned that the right to use force in defence of property should not be defeated by “a mere technical defect” in the possessor’s title to the property. The Committee acknowledged that the term “peaceable” was “virtually impossible” to define in this context but preferred to retain it rather than risk diminishing the protection afforded.[26] The proposal in the Crimes Bill to remove the defence did not progress, so s 56 remained unchanged.
[25]Crimes Consultative Committee Crimes Bill 1989: Report of the Crimes Consultative Committee (Wellington, 1991) [Casey Committee Report] at 26.
[26] Casey Committee Report at 26.
This Court in Haddon noted that the element of “peaceable possession” did not appear to have been considered by a New Zealand court. The Court went on to say that it was apparent “that it is sufficient for an accused to have actual control of the property in peaceable possession as a possession hitherto not seriously challenged by others”.[27] The Court also noted that the issue is a question of fact to be “viewed and assessed” by the decision-maker in the context of the events taking place.[28]
[27]R v Haddon, above n 15, at [44] citing R v Born with a Tooth. R v Born with a Tooth was also referred to in the High Court decision of Singh v Police [2003] NZAR 596 at [18] in the context of considering the phrase “peaceable possession” in s 53 of the Crimes Act 1961.
[28] R v Haddon, above n 15, at [45].
Simester and Brookbanks discuss the approach to be taken noting that the issue of the defence of property involves the difficult question about how to balance the relevant interests.[29] On the one hand, there is the interest of the community “in peace and good government” and on the other, “the interests of the private occupier in protecting his personal space”.[30] The authors suggest that the balance is generally found by distinguishing between using force to “claim” property and using force to “defend” that property.[31] The authors also note the general view that disputes should be resolved by the courts rather than by “resort to self help”.[32] Hence, in the context of considering the concept of peaceable possession the authors state:[33]
The key to peaceable possession is whether the possession is such, and the challenge to it is such, that the situation is unlikely to lead to violence.
[29]A P Simester and W J Brookbanks Principles of Criminal Law (3rd ed, Brookers, Wellington, 2007) at [15.2].
[30] At [15.2].
[31] At [15.2].
[32] At [15.2].
[33] At [15.2.2(3)].
That discussion reflects the general approach of the Court of Appeal of Alberta in R v Born with a Tooth. The Court there noted that the requirement for “peaceable” possession “greatly limits the defence”.[34] The Court made the point that the word “peaceable” is not the same as “peaceful” and so it is not enough “for the accused to show he kept the peace while on the land”. The Court continued:
[28] … Historically, it meant a possession that did not invoke a breach of the peace. See Stephen, A History of the Criminal Law of England (London: MacMillan and Co., 1883) Vol. III at 13–14. In real property law, peaceable possession means the possession:
… acquiesced in by all other persons, including rival claimants, and not disturbed by any forcible attempt at ouster nor by adverse suits to recover the possession of the estate.
[HC Black, Black’s Law Dictionary, 6th ed. (St Paul: West Publishing Co., 1990)]
[29] For the purpose of the [Canadian Criminal] Code, the term must mean a possession not seriously challenged by others. If it were otherwise, then every property dispute could be resolved legitimately by force. The evident object of the law is the exact opposite: the defence should be available only to those whose possession has not been seriously questioned by somebody before the incident in question. …
[34] R v Born with a Tooth, above n 14, at [28].
A similar idea was expressed by the Law Reform Commission of Canada in its proposed recodified criminal code. The Law Reform Commission proposed retaining the concept of peaceable possession. The Commission noted the term was left undefined under their proposed code as under the existing code but stated that it meant:[35]
Possession in circumstances unlikely to lead to violence resulting in personal injury or property damage.
[35] Law Reform Commission of Canada Recodifying Criminal Law (R30, 1987) at 35.
Against this background, we consider that Judge Atkins was correct to conclude that Mr Taueki did not have peaceable possession. At the time of the incidents giving rise to the charges, the sailing club, the Board and the Crown were not acquiescing in his claims. One illustration suffices.
Anthony Brown said in his evidence that when the club’s lease expired it was renewed on an annual basis by the Domain Board and the club paid the rental. Therefore, he said, “we were legally permitted to use the land and buildings”. In cross-examination he accepted their arrangement could have been a month to month one. He seemed to consider the problems with the Board membership were preventing a longer term arrangement.
Anthony Brown accepted he was aware of issues around ownership of the land and the building “coming to the boil”. However, he said, they had had the use of the area where the boat was parked for over 50 years “without any issues”.
He was asked in cross-examination about the condition in the bylaw relating to use of the rescue boat. He said he understood power boats could be used on the lake for rescue purposes. He said at the beginning of each year they submitted a copy of the sailing programme to the Domain Board and the local Council, which was approved. Therefore, his evidence was, “I would have taken that as their okay for us to use the rescue boat on the lake on those particular days”.
The subsequent developments provide some support for Mr Taueki’s view of the situation. However, that does not alter the position as it was on the day in question. In particular, at that point, the sailing club members, believing they had an ongoing arrangement, did not acquiesce in Mr Taueki’s claim. In terms of s 56, that is the relevant point in time.
We do not consider the other matters raised by Mr Taueki alter the approach to be taken to s 56. The approach taken by the Judge was consistent with that suggested by this Court in Haddon. Further, that approach is consistent with the purpose of the section as apparent from our discussion of its history. The use of the word “peaceable” is deliberate.
Mr Taueki relied also on a letter he wrote to the Domain Board Secretary in September 2006 asking for proof of the right to lease the land to the club. The letter said that failing that, “we or our representatives will take the necessary steps to evict any squatters and take possession of our land and building”. That letter could not have had an impact on the sailing club’s perception of events some two years later.
While it is understandable that Mr Taueki became frustrated that it was taking so long to resolve his concerns about the care of the lake, this is not a case where resort to an assault was defensible in terms of s 56.
Conviction for assault of David Brown by punching
The main argument here is that the assault was unintentional. Mr Taueki refers in particular to the evidence of David Brown that his father, Anthony Brown, had jumped on Mr Taueki’s back. The submission is that at the point when Anthony Brown jumped on him, there was an absence of intent and this is a matter the Judge should have considered.
We agree with the submission for the Crown that the matters raised in relation to the conviction for this count are either attempts to revisit factual findings made by the trial Judge or are matters that have no relevance to the conviction. We see no basis for disturbing the Judge’s factual findings which, on this point largely reflected the evidence of Mr Copplestone and were based on his assessment of the credibility of the relevant witnesses, particularly, Mr Copplestone and Mr Taueki.
The Judge said he was satisfied beyond reasonable doubt by Mr Copplestone’s evidence that there was a punch and did not consider that Mr Taueki’s evidence on the point raised a reasonable doubt. Judge Atkins noted that Mr Copplestone was not a member of the club although he sailed on club days. In other words, he had an independence from the events. Further, although Mr Taueki said he struck no blow, he did concede that he placed David Brown in a head lock.
On Mr Copplestone’s evidence, namely, that Mr Taueki “took a swing” and punched David Brown, the Judge could be satisfied beyond reasonable doubt that there was an assault and that it was intentional. The Judge did not expressly factor in the evidence about Anthony Brown’s actions to break up Mr Taueki and David Brown. It was not necessary to do that given the evidence that this occurred after the punch was thrown. Mr Copplestone, for example, said that the other members around grabbed Mr Taueki and David Brown and pulled them off each other. Further, it was put to Anthony Brown that Mr Taueki was “king hit from behind, a blow strong enough to make [him] stumble”. Anthony Brown rejected that suggestion. It was open to the Judge to conclude that this part of the narrative had nothing to do with whether the elements of the assault charge were met.
Mr Taueki also sought to rely on s 58 of the Crimes Act. Section 58 states that persons lawfully entitled to enter on land for the exercise of any right of way or other easement or profit are justified in peaceably entering on the land in order to exercise the right of way or easement. The section is subject to the proviso that:
If any one so entering has notice that his right to use that way or easement, ... is disputed by the person in possession ... , an assault committed by that person, ... for the purpose of making the person entering desist from entry, shall be deemed to be provoked by the person entering.
As Judge Atkins noted, this section cannot assist Mr Taueki. The proviso does not apply on the facts for the Browns were not entering. Mr Taueki cannot take advantage of it either to assist in his conviction appeal or to have the sentence reduced.
Finally, Mr Taueki said that there was an element of self-defence. On the facts as found by the Judge, the Crown negated that defence. There is nothing in this point.
Result
We have no doubt, as Judge Atkins accepted, that Mr Taueki has a genuine concern and a genuine view that others with a responsibility for stewardship of the lake have not been doing their part to protect it. However, this is not a case where it was available to him to invoke the statutory defence. The convictions accordingly must stand.
Mr Taueki did not separately address the question of sentence. The Judge made the point that the punch was a more serious offence and not a case where discharge without conviction was appropriate. We agree. We see no basis for disturbing the sentence.
For these reasons, the appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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