Taueki v R

Taueki v R
Taueki v R
Court	Supreme Court of New Zealand
Full case name	Philip Dean Taueki v The Queen
Decided	17 December 2013
Citation(s)	[2013] NZSC 146
Transcript(s)	Available here
Case history
Prior action(s)	District Court DC Palmerston North CRI-2010-031-0051588, 11 May 2011; Court of Appeal [2012] NZCA 428, [2012] 3 NZLR 601
Court membership
Judge(s) sitting	Elias CJ, McGrath, William Young, Chambers, and Susan Glazebrook JJ
Keywords
	Lake Horowhenua, Crimes Act 1961, Defence of property, Peaceable possession

Last updated February 26, 2019

In Taueki v R the Supreme Court of New Zealand considered the meaning of the phrase "in peaceable possession" as it relates to the Crimes Act 1961 justification for the use of reasonable force to defend property from trespass.

The Supreme Court of New Zealand is the highest court and the court of last resort of New Zealand, having formally come into existence on 1 January 2004. The court sat for the first time on 1 July 2004. It replaced the right of appeal to the Judicial Committee of the Privy Council, based in London. It was created with the passing of the Supreme Court Act 2003, on 15 October 2003. At the time, the creation of the Supreme Court and the abolition of appeals to the Privy Council were controversial constitutional changes in New Zealand. The Act was repealed on 1 March 2017 and replaced by the Senior Courts Act 2016.

The Crimes Act 1961 is an Act of the Parliament of New Zealand that forms a leading part of the criminal law in New Zealand. It repeals the Crimes Act 1908, itself a successor of the Criminal Code Act 1893, and partially codifies the criminal law in New Zealand. Most crimes in New Zealand are created by the Crimes Act, but some are created elsewhere. All common law offences are abolished by section 9, as are all offences against Acts of the British Parliaments, but section 20 saves the old common law defences where they are not specifically altered.

The defence of property is a common method of justification used by defendants who argue that they should not be held liable for any loss and injury that they have caused because they were acting to protect their property. Courts have generally ruled that the use of force may be acceptable.

Lake Horowhenua dispute

Lake Horowhenua, is a lake in the Horowhenua region, next to the town of Levin. The Maori tribe Muaupoko own the land surrounding the lake and the lake bed through a trust. For Muaupoko the lake is of central importance, and three hundred of their ancestors are buried under the lake bed. Due to years of pollution it is one of the most polluted lakes in New Zealand, with water quality so bad that ingesting it could potentially kill a small child.^[1] There is also a grievance over the use of motorboats on the lake, as the New Zealand Listener described:

Lake Horowhenua is located in the Horowhenua, an area of the southern Manawatu-Wanganui region in New Zealand's North Island. It covers an area of 3.9 square kilometres (1.5 sq mi).

Levin, New Zealand Secondary urban area in Manawatu-Wanganui, New Zealand

Levin is the largest town and seat of the Horowhenua District, in the Manawatu-Wanganui region of New Zealand's North Island. It is located east of Lake Horowhenua, around 95 km north of Wellington and 50 km southwest of Palmerston North.

Muaūpoko is a Māori iwi on the Kapiti Coast of New Zealand.

Since the 1950s, the lake owners have raised objections to motor-powered boats because of the noise, the risk of pollution and the churning up of the water under which their ancestors lie. Accordingly, power boats are allowed on the lake only in specific circumstances and with express approval from the board – a requirement flouted for so long, according to Taueki, that many club members are not even aware of it.^[1]

Since 2004, Philip Taueki, a member of Muaupoko tribe and a former accountant has lived in a building on land next to the lake campaigning against the continued degradation of the lake.^[1] This has brought to Taueki into conflict with the rowing and sailing clubs who use the lake over the use of motorboats on the lake. As a member of Mauapoko, Taueki is a beneficial owner of the lake and the domain surrounding it. Taueki had also been given "authority of the Trust to ensure that the bylaws were complied with and, in particular, that boats going on the lake were washed down and did not cause further contamination".^[2]

Beneficial owner is a legal term where specific property rights in equity belong to a person even though legal title of the property belongs to another person. Black's Law Dictionary. This often relates where the legal title owner has implied trustee duties to the beneficial owner.

A by-law is a rule or law established by an organization or community to regulate itself, as allowed or provided for by some higher authority. The higher authority, generally a legislature or some other government body, establishes the degree of control that the by-laws may exercise. By-laws may be established by entities such as a business corporation, a neighborhood association, or depending on the jurisdiction, a municipality.

Assault on Sailing Club members

On 14 September 2008, Taueki drove up to the Horowhenua Sailing Club building and got out of his car before shouting at club members about to launch a motorboat into the lake.^[3] Taueki was attempting to tell the Club members not to take the boat onto the lake. In the course of this heated discussion with club members, Taueki pulled a club member off the motorboat, "by grabbing his clothing around the chest and neck area", as the boat sat on its trailer about to be launched.^[4] As a result of this altercation Taueki was charged with the assault with which this appeal is concerned. Two further charges of assault were laid in relation to a continuing physical conflict with club members.^[5]

A motorboat, speedboat, or powerboat is a boat which is powered by an engine. Some motorboats are fitted with inboard engines, others have an outboard motor installed on the rear, containing the internal combustion engine, the gearbox and the propeller in one portable unit.

An assault is the act of inflicting physical harm or unwanted physical contact upon a person or, in some specific legal definitions, a threat or attempt to commit such an action. It is both a crime and a tort and, therefore, may result in either criminal and/or civil liability. Generally, the common law definition is the same in criminal and tort law.

Legal background

The status of the land where the dispute took place is complex. Although Muaupoko continued to own the lake and most of its surroundings, the Reserves and Domains Act 1953 had declared that some Muaupoko owned land and the lake's surface to be in the public domain, managed and controlled by a Domain Board.^[6] As such the assault took place on land which was owned by the Muaupoko trust but vested within the public domain.^[6]

Public domain land is land that cannot be sold because it legally belongs to the citizenry. Public domain land is managed by a public entity—such as a state, region, province or municipality—directly or by institutes or state companies. It is called dominio público (Spanish), domínio público (Portuguese), domaine public (French) or demanio pubblico (Italian).

At trial in the District Court, Taueki attempted to use section 56 of the Crimes Act 1961 to justify his assault on the club member in the boat:

s 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.

Taueki was convicted of assault in the District Court and had his appeal dismissed in the Court of Appeal. He appealed to the Supreme Court.

Judgment

Justice McGrath delivered the unanimous judgment of the Court dismissing Taueki's appeal. The Supreme Court clarified the meaning of possession and peaceable possession in the context of the defence of property. On possession, they held:

Possession, as required by s 56, accordingly turns on whether the person raising the defence has actual control over the property in question. Whether a person has sufficient control to be in possession is a factual question turning on all the circumstances including, for example, the nature of the land in question and the manner in which it is usually enjoyed.^[7]

On the definition of peaceable possession they ruled that:

Overall, the meaning of "peaceable possession" which best fits the context of the Crimes Act is simply possession that has been achieved other than in the context of an immediate or ongoing dispute. In brief, it is possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify.^[8]

In determining whether Taueki was in peaceable possession the Court held:

But we are satisfied that Mr Taueki was not in possession of that area as required by s 56. While the Reserves and Other Lands Disposal Act reserved to the Maori owners, of whom Mr Taueki was one, the "free and unrestricted use" of the lake and domain, this right of access to the lake and land does not confer any control over, or amount to possession of, the same especially given the nature of the land as a public domain. Nor is there any evidence that Mr Taueki had asserted or was exercising any actual control over the part of the domain in front of the clubhouse. He was not occupying the area where the incident occurred nor using it for his own purposes. On the other hand, the Club was actively occupying the area for its own purposes. On these facts, Mr Taueki did not have actual control. Given that Mr Taueki was not in possession of the land where the assault took place, the issue of "peaceable" possession does not squarely arise.^[9]

The Court also held that in order for force to be reasonable, the person using it will normally need to have given a trespasser notice that they are trespassing and a reasonable opportunity to leave.^[10] In addition, the Court held that a defendant could not rely on a mistaken belief as to whether they were in peaceable possession of the land or whether the other party was trespassing.^[11]

Related Research Articles

Trespass is an area of criminal law or tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.

A castle doctrine, also known as a castle law or a defense of habitation law, is a legal doctrine that designates a person's abode or any legally occupied place as a place in which that person has protections and immunities permitting one, in certain circumstances, to use force to defend oneself against an intruder, free from legal prosecution for the consequences of the force used. The term is most commonly used in the United States, though many other countries invoke comparable principles in their laws.

Volenti non fit iniuria is a common law doctrine which states that if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict. Volenti applies only to the risk which a reasonable person would consider them as having assumed by their actions; thus a boxer consents to being hit, and to the injuries that might be expected from being hit, but does not consent to his opponent striking him with an iron bar, or punching him outside the usual terms of boxing. Volenti is also known as a "voluntary assumption of risk."

Self-defence is a legal doctrine which says that a person may use reasonable force in the defence of one's self or another. This defence arises both from common law and the Criminal Law Act 1967. Self-defence is a justification rather than an excuse, saying that a person's actions were not a crime at all.

In the criminal law of Australia, self-defence is a legal defence to a charge of causing injury or death in defence of the person or, to a limited extent, property, or a partial defence to murder if the degree of force used was excessive.

A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behavior. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.

The New Zealand Bill of Rights Act 1990 is a statute of the Parliament of New Zealand setting out the rights and fundamental freedoms of anyone subject to New Zealand law as a Bill of rights. It is part of New Zealand's uncodified constitution.

An offensive weapon is a tool made, adapted or intended for the purpose of inflicting mental or physical injury upon another person.

Trespass in English law is an area of tort law broadly divided into three groups: trespass to the person, trespass to goods and trespass to land.

Ropaigealach v Barclays Bank plc [2000] QB 263 is an English land law case, concerning mortgage arrears and a rare mortgage over a family home which had a right to enter a home and sell it without a court order.

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References

1 2 3 "Lake of shame - New Zealand Listener". New Zealand Listener. Retrieved 2015-11-02.
↑ Taueki v R [2013] NZSC 146 at [24].
↑ Taueki v R [2013] NZSC 146 at [5].
↑ Taueki v R [2013] NZSC 146 at [6]-[7].
↑ Taueki v R [2013] NZSC 146 at [8].
1 2 Taueki v R [2013] NZSC 146 at [66].
↑ Taueki v R [2013] NZSC 146 at [58].
↑ Taueki v R [2013] NZSC 146 at [64].
↑ Taueki v R [2013] NZSC 146 at [67].
↑ Taueki v R [2013] NZSC 146 at [69].
↑ Taueki v R [2013] NZSC 146 at [73].

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[:0-1] 1 2 3 "Lake of shame - New Zealand Listener". New Zealand Listener. Retrieved 2015-11-02.

[2] Taueki v R [2013] NZSC 146 at [24].

[3] Taueki v R [2013] NZSC 146 at [5].

[4] Taueki v R [2013] NZSC 146 at [6]-[7].

[5] Taueki v R [2013] NZSC 146 at [8].

[ReferenceA-6] 1 2 Taueki v R [2013] NZSC 146 at [66].

[7] Taueki v R [2013] NZSC 146 at [58].

[8] Taueki v R [2013] NZSC 146 at [64].

[9] Taueki v R [2013] NZSC 146 at [67].

[10] Taueki v R [2013] NZSC 146 at [69].

[11] Taueki v R [2013] NZSC 146 at [73].