Taueki v R

The status of the land where the dispute took place is complex. Although Muaupoko continued to own the lake and most of its surroundings, the Reserves and Domains Act 1953 had declared that some Muaupoko owned land and the lake's surface to be in the public domain, managed and controlled by a Domain Board.^[6] As such the assault took place on land which was owned by the Muaupoko trust but vested within the public domain.^[6]

At trial in the District Court, Taueki attempted to use section 56 of the Crimes Act 1961 to justify his assault on the club member in the boat:

s 56 Defence of land or building (1) Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person.

Taueki was convicted of assault in the District Court and had his appeal dismissed in the Court of Appeal. He appealed to the Supreme Court.

Justice McGrath delivered the unanimous judgment of the Court dismissing Taueki's appeal. The Supreme Court clarified the meaning of possession and peaceable possession in the context of the defence of property. On possession, they held:

Possession, as required by s 56, accordingly turns on whether the person raising the defence has actual control over the property in question. Whether a person has sufficient control to be in possession is a factual question turning on all the circumstances including, for example, the nature of the land in question and the manner in which it is usually enjoyed.^[7]

On the definition of peaceable possession they ruled that:

Overall, the meaning of "peaceable possession" which best fits the context of the Crimes Act is simply possession that has been achieved other than in the context of an immediate or ongoing dispute. In brief, it is possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify.^[8]

In determining whether Taueki was in peaceable possession the Court held:

But we are satisfied that Mr Taueki was not in possession of that area as required by s 56. While the Reserves and Other Lands Disposal Act reserved to the Maori owners, of whom Mr Taueki was one, the "free and unrestricted use" of the lake and domain, this right of access to the lake and land does not confer any control over, or amount to possession of, the same especially given the nature of the land as a public domain. Nor is there any evidence that Mr Taueki had asserted or was exercising any actual control over the part of the domain in front of the clubhouse. He 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 these facts, Mr Taueki did not have actual control. Given that Mr Taueki was not in possession of the land where the assault took place, the issue of "peaceable" possession does not squarely arise.^[9]

The Court also held that in order for force to be reasonable, the person using it will normally need to have given a trespasser notice that they are trespassing and a reasonable opportunity to leave.^[10] In addition, the Court held that a defendant could not rely on a mistaken belief as to whether they were in peaceable possession of the land or whether the other party was trespassing.^[11]