Taueki v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath J
Judgment Date17 December 2013
Neutral Citation[2013] NZSC 146
Date17 December 2013
Docket NumberSC 64/2012

[2013] NZSC 146



Elias CJ, McGrath, William Young, Chambers * and Glazebrook JJ

SC 64/2012

Philip Dean Taueki
The Queen

G J X McCoy, Q Duff and K J McCoy for Appellant

F R J Sinclair and J E Mildenhall for Respondent

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”.

Held: Section 56 Crimes Act (“CA”) (Defence of land or buildings) was a limited right. It limited the scope of legitimate force in defence of possession of any land or building in three ways. First, it stated who was authorised to use force to that end being “[e]very one in peaceable possession of any land or building and every one lawfully assisting him or acting by his authority”. Secondly, the section defined the category of persons against whom such defensive force could be used, being actual or anticipated trespassers. Thirdly, it set a limit on the nature and extent of force that could be used, which was reasonable force for the purpose of preventing a trespass or removing a trespasser, but striking or doing bodily harm to that person was not authorised. The satisfaction of each of these limiting requirements was necessary before the use of force was justified under s56.

In the absence of any evidence to the contrary, a legal owner of property would be in possession of it. But, while possession was often an incident of ownership (or other legal right), in this context, ownership of the property was not necessarily required, nor even was a claim of right, before a person would have a defence under s56 CA. At the same time, something more than mere presence on the land or a mere right to use or enter a property was required.

Possession, as required by s56, turned on whether the person raising the defence had actual control over the property in question. Whether a person had sufficient control to be in possession was a factual question turning on all the circumstances including, for example, the nature of the land in question and the manner in which it was usually enjoyed.

“Peaceable possession” had to be given a meaning that gave due scope to both the s52 — s56 CA defences (defence of property) and the s91 CA (forcible entry) offence. The character of the possession in s56 which justified limited use of defensive force was not concerned with the quality of the possessor's title to the property, nor, generally, the basis on which possession was acquired. Overall, the meaning of “peaceable possession” which best fit the context of the CA was simply possession that had been achieved other than in the context of an immediate or ongoing dispute. In brief, it was possession obtained and maintained before the employment of the physical force the use of which the person sought to justify.

The statutory overlay was an unusual feature of the present case because it regulated in a specific way the rights of the trustees, the beneficial owners of the land, and the public (including the Club members). The incident took place on land in front of the clubhouse, which was within the public domain. Section 18(7) ROLDA directed that the Domain Board (rather than the Maori owners) was to control the domain. At the time of the incident the Domain Board was, consistently with that legislative provision, exercising actual control over the land where the incident occurred, for example, by making bylaws regulating public use of the domain, and entering into arrangements with the Club for use of the land and lake.

T was not in possession of that area as required by s56 Crimes Act. While the ROLDA reserved to the Maori owners, of whom T was one, the “free and unrestricted use” of the lake and domain, the right of access to the lake and land did not confer any control over, or amount to possession of, the same especially given the nature of the land as a public domain. Nor was there any evidence that T had asserted or was exercising any actual control over the part of the domain in front of the clubhouse. T 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 those facts T had not had actual control. Given that T was not in possession of the land where the assault took place, the issue of “peaceable” possession did not arise.

The force used by T had exceeded the scope of s56 CA. In order for the use of any force to be reasonable, it was normally necessary that the person had given the trespasser both notice that they were trespassing and a reasonable opportunity to leave.

There was no scope for applying s56 CA on the basis of beliefs (reasonable or otherwise) on the part of the defendant as to whether he or she enjoyed peaceable possession of the land, nor as to whether the other party was a trespasser.

Appeal dismissed.


The appeal is dismissed.


(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.

Background to prosecutions

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.

Ownership and administration of Lake Horowhenua and its public domain

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...

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