Taueki v R
| Jurisdiction | New Zealand |
| Judge | McGrath J |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] NZSC 146 |
| Docket Number | SC 64/2012 |
| Court | Supreme Court |
| Date | 17 December 2013 |
[2013] NZSC 146
Elias CJ, McGrath, William Young, Chambers * and Glazebrook JJ
SC 64/2012
IN THE SUPREME COURT OF NEW ZEALAND
Appeal against a Court of Appeal (“CA”) decision which upheld the appellant's convictions in the District Court (“DC”) on two charges of assault — appellant was a member of tribe which inhabited land by Lake Horowhenua — the bed of the lake and surrounding land was vested in trustees appointed by the Maori Land Court on trust for the beneficial owners, one of whom was the appellant — appellant was convicted of assaulting members of the Horowhenua Sailing Club — appellant argued he had a defence under s56 Crimes Act 1961 (defence of land) — whether appellant was in peaceable possession of the land where the incident took place and was justified in using reasonable force to prevent the complainant, who was about to take his boat onto the lake, from trespassing on that land — definition of “peaceable possession”.
G J X McCoy, Q Duff and K J McCoy for Appellant
F R J Sinclair and J E Mildenhall for Respondent
The appeal is dismissed.
REASONS
(Given by McGrath J)
Mr Taueki, the appellant, is a member of Muaupoko, within whose rohe lies Lake Horowhenua and its surrounding land. That land, and the bed of the lake, are vested in trustees appointed by the Maori Land Court on trust for the beneficial owners, one of whom is Mr Taueki.
Since it was formed in 1938, members of the Horowhenua Sailing Club have been sailing on the lake. For many years the Club has maintained a clubhouse on land by the shore.
On 14 September 2008, an incident occurred on the shore of Lake Horowhenua in the vicinity of the clubhouse when Mr Taueki prevailed on Club members not to launch a motorboat on the lake. As a consequence Mr Taueki faced three charges of assault against members of the Club and, following trial in the District Court by Judge alone, he was convicted on two of those charges.
Mr Taueki appealed to the Court of Appeal against his convictions but the appeal was dismissed. He has been given leave to appeal to this Court against one of the two convictions, on the ground that he had a defence under s 56 of the Crimes Act 1961, a provision authorising the use of force in defence of property. Mr Taueki's contention is that he was in peaceable possession of the land where the incident took place and was justified in using reasonable force to prevent the complainant, who was about to take his boat onto the lake, from trespassing on that land.
On 14 September 2008, the Club was holding its first training and racing day for the season on Lake Horowhenua. Anthony and David Brown, who are father and son and members of the Club, were present. Anthony Brown was the race officer for the Club. He had arrived at the lake early and was making arrangements for the start of sailing. He removed the Club's rescue motorboat from the shed, attached it to the tow bar of his car and started to prepare for putting the boat into the water.
Mr Taueki saw this activity. He was concerned at the use of a motorboat. In his view it was a speedboat which was not permitted on the lake. As well, he was concerned that the boat had not properly been cleaned. Mr Taueki drove over to the Club and parked his vehicle in front of the clubrooms. He got out and approached Mr Brown, who was inside the rescue boat. Mr Taueki was angry and yelling. Precisely what he said was the subject of conflicting evidence, but the general tenor was that the boat should not be taken on the lake. Mr Taueki indicated that it was his intention to evict members of the Club if they intended to carry on with their boating.
In order to speak to Mr Taueki, Mr Brown moved from the centre of the boat to sit on its edge, his legs hanging over the side. Mr Taueki approached and took hold of him by grabbing his clothing around the chest and neck area, as if to pull him off the boat. At his trial, Mr Taueki accepted that he had intentionally applied force. This incident gave rise to the charge of assault with which this appeal is concerned.
David Brown and another Club member then intervened to separate Messrs Taueki and Brown. Mr Taueki continued to insist that those members of the Club had no right to be there and that they should leave. David Brown called the police. The disagreement between David Brown and Mr Taueki then escalated, resulting in two further charges of assault, which are not relevant to the present appeal.
The trial Judge, Judge Atkins QC, rejected Mr Taueki's defence based on peaceable possession and convicted him on the charge of assault of Anthony Brown. This conviction is the subject of the present appeal.
In order to understand how the legal issue on which leave to appeal to this Court was granted arises, it is necessary to discuss Mr Taueki's interest as one of the beneficial owners of the land around Lake Horowhenua, the Club's use of its clubrooms and adjacent land, and the rights of the public to recreational use in respect of Lake Horowhenua.
The bed of Lake Horowhenua, and the surrounding land, is Maori freehold land to which title was granted in 1893. In 1898 the Maori Appellate Court determined the ownership of the land concerned and ordered that it be vested in trustees. New trustees were appointed in 1951. The trustees of the Lake Horowhenua Trust currently hold the land concerned on behalf of over 2,000 beneficiaries, including Mr Taueki.
In 1905, Parliament enacted the Horowhenua Lake Act, which provided for the Horowhenua Lake Board to control 951 acres of lake bed and surrounding land as a public recreation reserve. That Act provided for the native owners to have, at all times, the free and unrestricted use of the lake and their fishing rights, but not so as to interfere with the full and free use of the lake by the public for aquatic sports and pleasures. One-third of the Board members were to be Maori.
In 1934 a Committee of Inquiry looked into the Board's responsibilities, the effects that current legislation had had on Maori ownership and rights over the lake and its surrounds, and the effects of works that had been permitted by legislation in 1926. These works had lowered the level of Lake Horowhenua, creating a dewatered area between the lake itself and the one chain strip that surrounds it. 1
The status of Lake Horowhenua and the surrounding land was clarified by s 18 of the Reserves and Other Lands Disposal Act 1956, which remains in force. Prior to enactment of that legislation, the Crown had purchased from the Maori owners an area of 5.658 hectares known as Muaupoko Park, adjacent to the Maori-owned one chain strip. Section 18(2) of the 1956 Act provides:
(2) Notwithstanding anything to the contrary in any Act or rule of law, the bed of the lake, the islands therein, the dewatered area, and the strip of land 1 chain in width around the original margin of the lake (as more particularly secondly described in subsection (13)) are hereby declared to be and to have always been owned by the Maori owners, and the said lake, islands, dewatered area, and strip of land are hereby vested in the trustees appointed by Order of the Maori Land Court dated 8 August 1951 in trust for the said Maori owners.
Section 18(5) declared the surface waters of Lake Horowhenua, Muaupoko Park, and the part of the one chain strip and dewatered area between the park and the lake to be a public domain under the Reserves and Domains Act 1953. Maori title to the domain land was not affected by the declaration. Section 18(5) continued:
… provided further that the Maori owners shall at all times and from time to time have the free and unrestricted use of the lake and the [domain] … and of their fishing rights over the lake and the Hokio Stream, but so as not to interfere with the reasonable rights of the public, as may be determined by the Domain Board constituted under this section, to use as a public domain the lake and the … land … .
Section 18 also directed that a Domain Board control the domain in accordance with the Reserves and Domains Act. 2 Half of the Domain Board's membership would comprise persons appointed by the Minister of Conservation on the recommendation of Muaupoko. 3 The purpose of this provision was to ensure that the Maori owners of the lake bed were appropriately represented on the body controlling the public domain. Other members were to be the Director-General of Conservation as chair and three persons appointed by the Minister on the recommendation of the local and territorial authorities. In 1961, the trustees holding the land granted the Crown a lease in perpetuity over a section of lake bed adjacent to the public domain at a nominal rental. 4
The Reserves Act 1977 succeeded the Reserves and Domains Act. The domain became a “recreation reserve” and the Domain Board continues to operate as a “Reserve Board” under the 1977 Act. Under the 1977 Act, as under the 1953 Act, the Domain Board has power to make bylaws for the management and preservation of the reserve and other purposes listed in statute. 5
The Domain Board entered into an agreement with the Club to use and occupy land within the domain for club purposes for a term commencing in 1961. Under the agreement, the Club built a clubhouse on the dewatered area. The initial term of the agreement was for 21 years, with a right of renewal for the same term, which was exercised in 1982. The agreement expired in 2003 and was not renewed again. Club members gave evidence that this was because the Domain Board was functioning without Maori representation and had therefore decided not to make any long term...
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