THE QUEEN v JASON REECE THOMPSON [2001] NZCA 236 (3 October 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA161/01

THE QUEEN

V

JASON REECE THOMPSON

Hearing:	27 September 2001
Coram:	Gault J Keith J Salmon J
Appearances:	R J E Brown for the Appellant P S Dean for the Crown
Judgment:	3 October 2001

judgment of the court DELIVERED BY KEITH J

[1] A jury in the District Court at Hamilton found the appellant guilty of three charges of possession of a firearm, carrying an imitation firearm and possession of ammunition in breach of the Arms Act 1983 ss45(1)(b), 46(1) and 51(1)(b).He was sentenced to two years imprisonment.He appeals against his conviction.He submits, first, that the critical evidence - the firearms and ammunition found in a car he was driving - should not have been admitted, and, second, that the role of the McKenzie friend who was in Court to support him went beyond acceptable and prescribed limits.

[2] On the evening of 6 July 2000 the appellant was driving a car and was stopped by the police for a minor traffic infringement.He had as a passenger a friend who also faced trial but was discharged by the trial Judge under s347 of the Crimes Act 1961.The appellant gave the officer false information about his identity.On discovering that, the officer arrested the appellant, gave him his rights and advised him that another officer would take his car to the police station where it would be secured until he was bailed.In the meantime another officer who had been called to assist looked into the car and saw what appeared to be a firearm protruding from under the driver's seat.A third officer then drove the car back to the police station where it was briefly searched under s60(1) of the Arms Act.A sawn-off shotgun, a realistic looking imitation gun cigarette lighter (the item first seen protruding from under the driver's seat) and ammunition were discovered.Very early the following morning a detective applied for and was issued with a search warrant in respect of the car.No further relevant evidence was found as a result of that later search.

[3] At the trial the appellant represented himself with the assistance of a McKenzie friend, Mr Manukau.At the pre-trial stage the Judge permitted Mr Manukau to address the Court on behalf of the appellant and his co-accused "in a liberal permissiveness of the role of a McKenzie friend".

[4] The Judge's summing up reveals that the critical issue for the jury was whether the appellant was able to establish a legal justification for his possession of the weapons and ammunition.(The relevant offence provisions in the Arms Act provide for defences of lawful, proper or sufficient purpose.)It appears from the Judge's summing up that the appellant contended that he was justified in carrying arms because of his membership of a private New Zealand army.The Judge directed the jury that there is no such recognised legal right in New Zealand and the jury returned guilty verdicts on each count.

[5] The argument that the weapons and ammunition should not have been admitted into evidence would and should have been made, in the ordinary course, to the Judge and preferably before trial.Their admissibility was a matter for the Judge alone and not for the jury.In that sense no real question can be raised about the Judge saying to the jury that there was no issue - for them - about the lawfulness of the search.(The appellant had raised the matter when cross-examining police witnesses.)Mr Brown acknowledged that, but contended that this Court should rule that a miscarriage of justice had occurred because the evidence had been wrongly admitted.

[6] The argument about admissibility was based primarily on s60(3) of the Arms Act which places duties on those exercising powers under subss (1) and (2) of s60.(Subsection (2) is not relevant.)Subsections (1), (3) and (4) are as follows:

60 Search of suspected persons and seizure of firearms, airguns, pistols, imitation firearms, restricted weapons, ammunition, or explosives

(1) If a member of the Police has reasonable grounds to suspect that any person being in a public place is carrying or is in possession of any firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive in breach of this Act, the member of the Police may, without warrant,--

(a) Search that person, or any vehicle, package, or other thing there in his possession or under his control; and

(aa) Use such force as is reasonable in the circumstances for the purposes of effecting entry to the vehicle, and for breaking open any package or other thing to which paragraph (a) relates; and

(b) Detain that person for the purpose of any search under paragraph (a) of this subsection; and

(c) Seize any such firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive, and detain the same.

...

(3) It is the duty of everyone exercising any power conferred by subsection (1) or subsection (2) of this section--

(a) To identify himself to the person searched and to the occupant of any premises searched; and

(b) To tell the person searched and the occupant of any premises searched the section and subsection of this Act under which the power is being exercised; and

(c) If he is not in uniform, to produce on initial entry, and, if requested, at any subsequent time, evidence that he is a member of the Police.

(4) Where any member of the Police exercises any power conferred by subsection (1) or subsection (2) of this section, he shall, within 3 days after the day on which he exercises the power, furnish to the Commissioner a written report on the exercise of the power and the circumstances in which it came to be exercised.

[7] Mr Brown contended that the requirements of paras (a) and (b) of subs (3) had not been met.There was, he said, no evidence on the face of the trial transcript of compliance with the requirements.One reason for that, no doubt, was that compliance with them was not clearly put in issue during the trial. The failure to comply meant that the search and seizure were illegal, and were unreasonable under s21 of the New Zealand Bill of Rights Act 1990 with the consequence that the evidence of the weapons and ammunition should not have been admitted.

[8] There are questions about the exact scope of subs (3) and about the consequence for the lawfulness of the search of a failure to comply with its requirements, as appears for instance from the judgments delivered in this Court in R v Jefferies (1993) 10 CRNZ 202.We need not enter into those issues however since we have no doubt that, even were they both answered in the appellant's favour (and we express no opinion on that), the search could not be said to be unreasonable.The police officers saw what appeared to be a pistol in the front of their car.They saw a balaclava.They soon had information about the appellant's criminal record.(He was on bail at the time.)Once legitimate state interests in preserving public safety and detecting crime are weighed against any intrusions on individual interests, here of privacy, the search was plainly not unreasonable (R v Grayson and Taylor [1997] 1 NZLR 399, 407, para 5).As Mr Brown properly accepted, there was no gross invasion of privacy and the search was carried out at the Police Station with the property secured.The only factor additional to the claimed unlawfulness weighing on the appellant's side to which he could refer was that the appellant could have been present when the car was searched - because at the relevant time he was in the cells at the same police station. That presence is not however required by s60.Further, while it might sometimes be a sensible course, there was no obvious reason for it to be followed here.There is no basis for a finding under s21 or the common law leading to the exclusion of evidence.

[9] Accordingly, we conclude that this ground of appeal fails.

[10] The second ground of appeal was that the role of the McKenzie friend went beyond acceptable and prescribed limits.In argument the ground went somewhat more widely to claimed breaches by the trial Judge of his obligation to protect the rights and interests of the unrepresented accused, given the inadequate assistance from the McKenzie friend.

[11] First, Mr Brown submitted that at the pretrial hearing (about the lines of defence that should be available to the appellant as a Maori), the Judge seemingly overrode the restrictions of Mihaka v Police [1981] 1 NZLR 54 by allowing the McKenzie friend to make submissions and, at the trial, to prepare closing submissions.The first error (if it was such) could however have absolutely no consequence for the trial itself and, we note, the appellant himself was foreshadowing such lines of argument as early as the time of his arrest, before Mr Manukau became involved.Assisting with the preparation of submissions at the trial itself falls squarely within the advisory role of the McKenzie friend.

[12] Secondly, submitted Mr Brown, the trial Judge should have afforded greater protection than he did.It was made clear by information provided from the bar that the Judge did provide the caution required by s364 of the Crimes Act and asked the question set out in s365.In addition, at the end of the prosecution evidence, he twice (at the end of one day and the beginning of the next) asked the appellant whether he wished to give evidence.

[13] Mr Brown contended that the Judge should have done more to call the appellant's attention his need to establish a defence of lawful, proper or sufficient purpose, but that was plainly a central issue in the trial as appears for instance from the appellant's apparent contention that his membership of a private army provided such a defence.

[14] We can see no force in this ground of appeal.A reading of the transcript indicates that the trial Judge was throughout properly concerned to protect the rights of the two accused.That appears for instance from his own motion s347 ruling in favour of the co-accused.

[15] This ground of appeal also fails and the appeal against conviction is accordingly dismissed.

Solicitors:

Crown Solicitor, Auckland