Lake 'guardian' loses Supreme Court appeal
Philip Taueki has lost his Supreme Court appeal against a 2008 assault charge where he clashed with sailors at Lake Horowhenua.
The decision effectively says Mr Taueki, the kaitiaki or guardian of Lake Horowhenua, has no right to remove people from the lakeside who he feels are threatening the waterway.
Taueki has lived in an old nursery at the lake for the past decade and has had a number of confrontations with users of the lake in recent years.
These incidents have landed him in court several time, where he often won cases or had charges against him dropped.
The Supreme Court case, for which a hearing was held earlier this year, relates to an incident in September 2008 when members of the Horowhenua Sailing Club were preparing for a competition on the lake.
Taueki was concerned about the use of a motorboat that the club members were preparing to put in the water, as he considered it to be a speedboat.
He was also concerned that the boat had not been properly cleaned.
Lake bylaws state that motor-powered craft can only be used on the lake with a permit from the Lake Domain Board, and that all boats must be washed before they enter the lake.
After indicating to club members that the boat should not be taken on the lake, Taueki approached a member of the club and grabbed his clothing around the chest and neck. He was charged with assault.
At his district court trial, Taueki accepted that he had applied force to the member of the club but argued that he was acting in defence of property that he was in peaceable possession of.
The law states someone in peaceable possession of land may use limited and reasonable force to prevent another person trespassing on that land, or to remove a trespasser.
Judge Les Atkins did not accept this argument, finding that Taueki was not entitled to use force against the sailors for several reasons, including that he was not in peaceable possession of the land at the time.
Taueki was convicted of the charge of assault.
The Court of Appeal upheld the conviction.
The issue before the Supreme Court was whether Taueki was in peaceable possession of the land where the incident occurred, so that he was justified in using reasonable force to prevent a trespass or remove a trespasser.
The court's unanimous decision was that possession required an appropriate degree of actual physical control over the land in question.
It must be a single and exclusive possession.
While the court accepted that Taueki was one of the 1500 owners of the lake, it found Taueki did not have actual control of the land where the incident occurred and, therefore, was not in possession of the land.
His defence of peaceable possession did not apply and his appeal was dismissed.
- © Fairfax NZ News
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