Police Power of the Purse

The dogged and enduring pursuit of a Horowhenua man by Police has some questioning police powers and motives after this month’s decision by police to appeal his acquittal on a trespass charge.Phil Taueki

By judgment dated 5 May 2016, District Court Judge JF Moss acquitted Philip Taueki of the trespass charge but did not stop there.  The Judge found police had pushed a prosecution on behalf of a non-occupier on Lake Horowhenua against a trust beneficiary with right of access.  The Judge further cast aspersions on the surreptitious manner in which the trespass notice appears to have been drafted.

As a result, the Judge aborted the trial on grounds the prosecution could not succeed, and did so before any defence was put forth.

The NZ police on 1 June 2016 appealed against the acquittal on multiple grounds, engaging the resources of the financially strapped Crown Law Office.

The Maori Land Court in 2012 and the Supreme Court in 2013 established Lake Horowhenua and the surrounding land to be Maori freehold land owned by Muaupoko iwi, held in trust of which Mr Taueki is a beneficiary.  The Reserves Act 1977 still provided for a Domain Board to administer public access and impose bylaws on such access to protect the integrity of the lake and land, although they can no longer lease any of the buildings to local clubs.

In the 2012 Maori Land Court decision Taueki v Horowhenua District Council, the Judge recorded agreement that the buildings were an indivisible part of the land.

The police prosecution to trespass Mr Taueki from the buildings was the latest in a string of skirmishes and prosecutions.  In 2013 Mr Taueki was found guilty of assault after trying to prevent a local club launching unwashed boats onto the lake, in breach of bio-security regulations.

For the past eight years police appear to have gone to extraordinary lengths to detain and prosecute Taueki over infractions which minimally suggest police have a lot of free time on their hands. Over the past five years alone, a total of 33 charges have been withdrawn, dismissed or quashed on appeal.  More than likely the political influence of special interests are prompting police action which is polarising the community as well as the competing interests on lake use, a situation not lost on Judge Moss in her judgment.

Mr Taueki says he was told by the Amicus Curiae in this most reason prosecution there was political pressure to go ahead with the trespass charge despite little chance of a conviction.

In Taueki v Queen [2013], the Supreme Court of New Zealand upheld Mr Taueki’s conviction for an earlier assault but otherwise soiled its 26-page ruling by instilling conflicting opinions and greater confusion on the topic of Lake Horowhenua occupation, access and trespass.  The Supreme Court actually issued a press release on this judgment which ironically served to highlight the judges’ legal shortcomings.  Scholars meanwhile saw it as yet another case where the Supreme Court of New Zealand allowed a hearing to address a minor, isolated and specific charge against one person without providing guidance on the relevant law of trespass or primacy where ownership interests compete with ‘Queen’s chain’ access.

As this latest in the never ending saga of Police v Taueki underscores, NZ Supreme Court judges’ desire to maintain judicial discretion rather than define predictable and consistent legal doctrine proved again to be the bane of New Zealanders.