Closing Statement For The Defence Of Phil Taueki

For extensive background to the case of the Crown vs Phil Taueki (the guardian of lake Horowhenua) see Pita Sharples to conduct a full inquiry into Lake Horowhenu.

The following is Mr Taueki's statement in defence presented to the court in relation to assault charges laid against him following an incident 2 years ago. Mr Taueki was arrested while Sailing Club members were preparing to launch a power boat onto the lake.

MAY IT PLEASE THE COURT

In making our closing submission, first I’d like to thank you, your Honour for your forbearance during these proceedings, and also express my gratitude to both you and Mr Winter for his input as an amicus.

When this matter was scheduled to go to trial last November, it had been patently obvious to me that nobody else involved at that time fully grasped the complexity of the land ownership and other issues that would arise, and which I considered relevant to my defence.

The Crown, in its summary of facts, claims that I was engaged in claims in respect of the lake and some of it surrounding areas.

I would like to dispel any assumptions that these claims relate to ownership of the lake. Although in many ways the evidence given by Mark Stevens failed to advance matters relating to these allegations against me, it perhaps gives the Courts some insight into the difficulties, we as a tribe face when our ownership rights have been wrested away from us to the extent that we do not even have the right to choose the tenants on our own land.

But these issues of governance are not for this Court to address, and for this reason in my closing submission I will steer away from matters relating to the lease, apart from anything that has a direct bearing on the charges the police have laid against me.

I have raised these matters in the correct forum, in the Maori Land Court, the Waitangi Tribunal and with my application to the Minister of Maori Affairs for an inquiry under section 29 of Te Ture Whenua Maori Act 1993, and I can assure you, they will continue to vex some very astute legal minds.

There is not a shred of doubt that the Lake Horowhenua lakebed, chain strip and dewatered area is and always has been owned by the Maori owners, because section 18 (2) of the Reserves and Other Lands Disposal Act declares this to be so.

I have produced as evidence a copy of the Ministry of Justice Maori Land Online ‘owner interest search’ which lists Lake Horowhenua under the search results for Philip Deane Francis Taueki.

Therefore the defence has legitimate grounds to argue that Phil Taueki , as an owner, was and is in peaceable possession of the dewatered area surrounding the lake, the land upon which the Crown alleges the assault on Tony Brown occurred.

I suspect that the Crown will argue that peaceable possession is possession hitherto not seriously challenged by others.

The defence is relying on the defence of peaceable possession only for the first alleged assault, the one that occurred on the grassed area, the dewatered area, that is and always has been and always will be Maori-owned. We are not arguing peaceable possession in terms of the alleged assault in the stairwell.

In this instance, there still lies a difficulty in that members of the Sailing Club did challenge my right to remove them from the land.

However, in this regard, I was clearly in peaceable possession of that land, because s 18 (2) of the ROLD Act 1956 declares that Muaupoko are and always have been the owners of that land.

Can Sailing Club members seriously question ownership that exists not only by title but also in law?

Whilst I as an owner, strangely enough have been granted free and unrestricted use of my tribe’s lake and my land at all times, the law is not as accommodating about the right of public access to Lake Horowhenua and surrounding lands.

And before Crown objects, I am well aware of the qualifier to this right. It will be addressed.

By-laws can not supersede law, and therefore the Crown’s arguments about my behaviour are, with due respect, out of order.

With public access, there are two legal restraints.

First, due to the ROLD Act, the reasonable rights of public access are determinable by the Lake Domain Board.

Second, Lake Horowhenua is gazetted as a public reserve. Therefore s 17 (2) of the Reserve Act 1977 applies. This legislation grants the public freedom of entry and access to the reserve – subject to various provisions including any by-laws applying to the reserve.

And for this reason, the Lake Domain Board’s by-laws are clearly relevant to my defence, both in relation to section 18 of the ROLD Act 1956 and section 17 of the Reserves Act 1977.

Access to the reserve, is dependant upon compliance with these by-laws.

The Lake Domain Board’s by-laws, I freely concede are wordy and difficult to follow.

But the fact remains that clause 19 (3) clearly refers to prior written consent required to use a boat driven by a motor engine on Lake Horowhenua.

From the testimony given by members of the Sailing Club before this clause was read out to them, longstanding members were clearly not au fait with these regulations.

Whether their lack of knowledge on this provision is arrogance or ignorance is immaterial.

They failed to comply, and their right of access, in my mind was forfeited.

I did not need any authorisation from the Lake Domain Board, the Horowhenua Lake Trustees or anybody else for that matter to exercise my right as an owner of the land and the lake.

As kaitiakai, or guardian of the lake, I do, however hold a special role in terms of Muaupoko tikanga to protect my tribe’s taonga from further desecration and degradation. Given my proud ancestry and parentage, it is a role I take very seriously indeed. Whist everyone else has been turning a blind eye I have drawn a line in the sand and said enough is enough.

By contrast, Tony Brown who was race officer that day said he was not aware of the by-law but he furthermore claimed that it was irrelevant.

David Brown says I was waffling on about bylaws and making up all sorts of things. He even goes on to boast that he knew from history, that the club had actually been one of the ones promoting the bylaws in the first place.

And finally, the most telling comment of all came from David Feek as Club Commodore at the time. When asked whether it would have altered his perspective or reaction to Mr Taueki when he arrived on the day we’re taking about if he’d known that the use of motor boats on the lake was regulated by a by-law from 1996, his answer was simple. No.

And as the final nail in the coffin to establish the disdain David Brown held towards me, and my concern about the by-laws, David Brown quite frankly admitted that it was fair to say he wasn’t going to tolerate anybody challenging his or his family’s right to use the lake. He testified that Phillip was just spouting off a whole lot of stuff.

In other words, longstanding club members not only demonstrated their lack of knowledge regarding the by-laws granting them access to the lake, they clearly were not the slightest interested in complying with their by-laws.

And therefore, under both the ROLD Act 1956 and the Reserves Act 1977, they had no right whatsoever to access that land, or the lake for that matter.

So now we come to the three assault charges and we will deal with them one by one.

The first was the alleged assault on Tony Brown while on dewatered land, preparing his boat with a forty horse-power motor on board to launch onto the lake.

The defence argues section 56 of the Crimes Act which gives every one in peaceable possession of any land or building justification to use reasonable force to remove any person from that property if he does not strike or do bodily harm to that person.

To refer to the number of Maori owners of the lake, or the Lake Trustees or the Lake Domain Board is a red herring, because the legislation quite clearly stipulates that ‘every one’ in peaceable possession of any land is entitled to use reasonable force to remove a person from that property. This section does not exclude Maori-owned land, or land that has multiple owners.

There is no evidence to suggest that I struck or caused any bodily harm to Tony Brown.

Every witness who gave evidence with regard to this matter refers to grabbing clothing. Tony Brown, when asked, by pulling your shirt, did you receive any injuries from that, his answer was simple: No.

Clearly the Crown has failed to meet the necessary threshold to prove this charge.

For the second assault charge, the Crown alleges that I turned around and kicked David Brown as he and David Feek were chasing me up the stairs, inside the clubrooms.

For this charge, the defence relies in section 48 of the Crimes Act 1961, that everyone is justified in using, in defence of himself or another such force as in the circumstance as he believes them to be, is reasonable to use.

Judge Garland suggests there are three questions that need to be considered in relation to self-defence

a) What were the circumstances as the accused believed them to be?
b) In those circumstances, was the accused acting in defence of himself?
c) Was the force used, reasonable against the circumstance believe them to be?
There are two contemporaneous items of evidence which are of relevance to this charge.

The first is the medical records that confirm, only a fortnight beforehand, I had undergone knee surgery.

The second was the tape of the emergency call David Brown was making to the police at the time he was chasing me up the stairwell, recording events as it happened. It recorded comments not heard by Margaret Feek who was upstairs or David Feek who was following David Brown who was chasing me up the stairs. It recorded David Brown yelling to me to get out of the building, and then proclaiming that I was trespassed.

As David Brown testified: ‘Legally I was trespassing him’.

But why was David Brown chasing me up the stairs? He was already on the phone to get the police to get him out of the building. He had already ‘intervened’ in the earlier incident, and he was storming up the stairs behind me.

As I testified, I turned and bracing myself against the walls of the stairwell, instinctively raised my foot to deter Mr Brown junior from coming any closer, to keep him away from me.

At that time, I was stationery.

David Brown on the other hand was charging up the stairs.

The question has to be asked: who made contact with whom?

The more likely scenario is that David Brown, distracted by his phone call to the police, collided with me.

But I do not have to prove my version of events.

The onus is upon the Crown to proved David’s version of events.

The onus is upon the Crown to prove that I made contact with David Brown, and the fact that he told the police that the Maori bastard had just kicked him was simply his opinion. As I had testified, I am the son of a full-blooded Maori...

Even so, when asked if he had any injuries from being kicked, David replied: Not from being kicked, no.

Now to the third incident, the one the defence concedes is more problematic.

There was plenty of testimony from four witnesses of the same family, David Brown as the complainant, his father, his mother and his stepfather.

Tony Brown sys he saw several punches - but he wouldn’t know whether it was six or ten. He also said his son was bleeding from significant places. However he does concede that he did not see my fists making contact.

David Brown says there were multiple punches, and when asked to which part of his body, he replied: Face.

Margaret Brown, was the only member of the family prepared to concede that David ‘retaliated’,.

Later, when asked what her son was doing when those punches were being thrown, she conceded: Well I think he started hitting as well after it had started.

Question: “Your son responded.” That’s correct, she replied

Ken Copplestone denied it was a flurry of blows, but he did testify that Phillip took a swing at David Brown. And even though Kent Copplestone was probably the only independent witness and by far the most plausible, he also testifies that he was coming from his car towards the situation to see what was all going on. When asked: Did you get there when any of this was taking place, he said: Nah I was right there, but I was on my way over.

So really the only contemporaneous evidence is the photo taken by the police of David Brown’s injuries, several days after the incident happened.

Was it a photograph of a face pummelled by punches, with keys in his hand?

The abrasion to his chest and the nick on his ear can be explained by David Brown’s own admission that he was squirming and trying to break free from the headlock I had placed him under.

In Galvin versus Police 22/4/86 HC Rotorua M44/85 Justice Bisson held that a push to the chest of a police officer attempting to execute an invalid search warrant was held to be reasonable.

A more extreme illustration of reasonable in terms of force would be a case that never even proceeded to court, when the police announced on the 4th of February this year that they would not be charging Auckland pharmacist over the death of a burglar who entered his premises. Grant Gillard, when surprised by a burglar, wrestled a spanner off this intruder and put him in a headlock while he called his wife and asked her to phone the police. When the police arrived, the pharmacist released the burglar who collapsed to the ground, could not be revived and was declared dead by ambulance staff.

Furthermore, it was held in R versus Hills (1999) 16 CRNA 673 (CA) that once there is evidence that an accused was seeking to prevent or remove a person who was or may have been trespassing, the burden will be on the prosecution to show that the force exceeded the bounds of what was reasonable.

And then there was the injury to the face.

The only contemporaneous evidence is the photograph taken of David Brown’s injuries.

As Police Officer Collis conceded, he had noticed no grazes or abrasions to my hands or knuckles, as would be consistent with punching.

There were no expert witnesses called.

So does the photo show that David Brown’s face has been pummelled by a series of punches?

Or is my explanation more plausible?

It is interesting to note that David Brown, twice in his testimony, mentioned his father jumping on my back.

His father says nobody hit me from behind.

There is a general consensus that the keys I had carried in my left hand were later found on the grass.

The Brown family had been understandably cautious in their concessions about what happened that day, because they were clearly affronted by the arrival of a Maori to disrupt their day’s sailing, their relaxation.

But David Brown, twice testified that his father jumped on my back.

And I would suggest that is significant.

Because, within a fortnight of my knee surgery, it was likely that this action made me stumble, my keys flying out of my hand and landing on the grass somewhere.

And therefore the assault charge becomes problematic for the Crown because they would then finds themselves in difficulty trying to establish that the application of force was intentional.

Once again, the onus is upon the Crown to prove, beyond all reasonable doubt that the action which led to the bruising and scratch below David Brown’s eye was intentional.

The arrival of Police Officer Andrew Collis on the scene, his quick appraisal of the scene and his prompt arrest means that we have been denied the type of investigation that would be warranted in such circumstance, particularly when on this very day, I am facing the prospect of a year in jail.

The vagueness of his answers was particularly compelling.

He failed to check out my own injuries, and only now do I understand the reason for a swelling on the back of my neck and a sense of pain in my shoulder for the following week.

Tony Brown, according to his son’s testimony jumped on my back.

So, in essence there was a free for all, and Police Officer Collis said once he has seen David Brown’s injuries, he knew I was going to be arrested. As he causally testified: “yeah there was an offence that I could see that had happened, after speaking with both those persons and arrested.”

There was no blood on my clothing.

There were no abrasions to my knuckles or hands.

There was a swelling on the back of my neck, but unfortunately, at that time, I could not afford to go to the doctor to get it verified.

But it was incumbent upon the police to check whether I had been injured or in pain, and I categorically state that he showed no interest in my own welfare after what, can only be described as a melee, involving a number of sailing club members and me, alone as kaitiaki of my lake.

But there is one ray of light in all this confusion.

And that is section 58 of the Crimes Act. Although that section is clumsily worded, it does shed some clarity upon the whole situation.

This small section of the law in essence says that when the person in possession of the land, as I clearly was, disputes the right of person entering that land, an assault committed by that person in possession of the land ‘shall be deemed to be provoked by the person entering’.

So yes, I concede that there was a confrontation down at the lake that day, and that David Brown can come to this Court and give evidence that he was injured. That the police can produce a photograph proving that he was injured – albeit so slightly.

But I contend that the police failed in their statutory duty to investigate this matter impartially, resulting in the lack of evidence to help the Court in their deliberations.

But most of all, this whole trial has exposed the difficulties my tribe faces.

Legally we own the lake and the surrounding land.

But legally, we have no rights to protect our lake from those who would abuse the privilege of being able to enjoy access to our taonga.

The only right I have is, to have the full facts of this case, aired in court so that I may receive my right to a fair hearing.

I am grateful to you, your Honour for respecting that right.

I would conclude with the words of an esteemed lawyer.

There are two great principles which are the essence of the law relating to criminal trials.

The first is what is known as the burden of proof. The principle is that it is the crown which makes the accusation and it is the crown which must prove its case. The burden is taken up by the crown when it commences its case and from beginning to end, it never shifts. It follows that it is not for an accused person to prove his innocence. He is not obliged to go into the witness box; he is not required to establish anything – the burden of proof is on the crown and that burden never shifts. It is a weighty burden, but it is the crown who bears that burden and the crown alone that must prove its case.

The second burden is known as the standard of proof. The crown must prove its case to a high standard. It must prove its case beyond all reasonable doubt. If a jury were to come to a conclusion that an accused person was probably guilty, then in accordance with its oath, that jury would be obliged to acquit. That is because ‘probably guilty ‘ is not enough. The only conclusion that justifies a finding of guilt is a finding that the accused is guilty beyond all reasonable doubt.

On that standard, the Crown has incontrovertibly failed to prove its case against Phil Taueki.

ENDS

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