Brown v Police HC Christchurch CRI 2011-409-000045 [2011] NZHC 1615 (31 August 2011)

Last Updated: 22 November 2011

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI 2011-409-000045}

TERRY REX BROWN

Appellant

v

POLICE

Respondent

Hearing: 31 August 2011

Counsel: M Starling for Appellant

K Bell for Respondent

Judgment: 31 August 2011

_{JUDGMENT OF FOGARTY J}

[1] This is an appeal from conviction and sentence. The appellant was convicted in the District Court of being in possession of firearms whilst not being the holder of a firearms licence. He was convicted by Judge Strettell. He was fined by Judge Erber and then the matter was heard again by Judge Strettell, who interpreted the submissions before him as an application for rehearing, reimposed a fine of $400 and ordered three firearms found on the property to be forfeited.

[2] I have spent an afternoon hearing a number of very complicated arguments, both challenging the conviction and the jurisdiction of Judge Strettell to impose forfeiture after the sentencing by Judge Erber imposing the fine of $400.

_{[3] I deal firstly with the conviction.}

BROWN V POLICE HC CHCH CRI 2011-409-000045 31 August 2011

[4] The facts can be stated quite briefly. In response to a 111 call of three shots discharged in the vicinity of the residence of the appellant, armed police officers called, spoke to the appellant outside the property, and took the appellant back to the property, searching the property relying on s 61 of the Arms Act 1983. There they found three valuable shotguns. The appellant is not licensed.

[5] In the trial before Judge Strettell the argument was that the s 61 warrant was invalid as the address was wrong. This point was analysed by Judge Strettell by reviewing the conveyancing history and finding as a fact that the property did actually have as a current address the same address on the s 61 warrant. Accordingly, the entry of the property and search for the firearms was lawful. I find the reasoning of the Judge sound.

[6] Alternatively the Judge also considered whether or not, even if the guns had been improperly obtained, the evidence of finding should be excluded, and he did an analysis following R v Shaheed[1] and R v Williams[2] in terms of s 30 of the Evidence Act 2006. Section 30(3)(g) provides:

30 Improperly obtained evidence

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

...

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

...

[7] The Judge was of the view that the circumstances surrounding the search were urgent. One keeps in mind that there was a 111 call by a neighbour concerned about the unexplained firing of three shots. It is not clear, because we have not got the 111 transcript, whether they were gun shots or rifle shots. An affidavit has been filed since the hearing saying they were rifle shots. I do not think it matters either

_{way. The concern of the neighbour, and neighbours usually have a pretty good sense}

of what is normal in a neighbourhood, was sufficient to justify serious concern by the police. They sent out armed officers.

[8] They found three firearms in a residence occupied by a man who does not have a licence to possess firearms. I agree with Judge Strettell:

The possession of illegal firearms remains locally and nationally a matter of concern to the public generally.

[9] I am of the view that there is no reason why this Court as an appellate Court should disturb his exercise of discretion favouring admitting the evidence pertaining to the search and accepting that the police had acted in good faith.

[10] The situation then was that the appellant chose to elect the right of silence and the Judge drew the inference that he was unlawfully in possession of the firearms and was so convicted.

[11] The appeal against conviction is dismissed. [12] I turn to the question of sentence.

[13] For some reason the matter came before Judge Erber who did not want to do the sentencing but did. Then at the end of the sentencing, no mention having been made of forfeiture at this stage, and after Mr Starling had asked the police officer in the presence of the Judge to return the weapons the police asked for forfeiture, Judge Erber declined to consider the issue of forfeiture, called for submissions to be filed and the matter was remitted to Judge Strettell.

[14] Judge Strettell considered that effectively it was an application for rehearing because the written argument he received included the argument that the level of fine had to be made in the light of any forfeiture orders and that the fine had been made without consideration of forfeiture. The Judge treated it as a rehearing.

[15] There is a limited ability of another Judge to rehear under the proviso of s 7(1) of the Summary Proceedings Act 1957. I have, however, my doubts as to the applicability of that proviso because as Mr Starling said it was quite practical to send

the matter back to Judge Erber. However, both counsel are agreed that were I to set aside the decision of Judge Strettell on this appeal by way of “rehearing” I have the power to exercise the jurisdiction that the Court had.

[16] I then heard some argument as to whether the matter should go back to the District Court. Mr Starling accepted that I had the jurisdiction to deal with the matter here. I propose to do so with some diffidence that I am not sure the matter has been fully argued.

[Discussion with counsel]

[17] Having heard counsel it seems to me that there is a Gordian knot here that has to be cut. The matter can be clarified by the notice of appeal. I had originally thought that the notice of appeal did not extend as far as Judge Erber’s order but it does under item (d) because the appellant argues the sentence should have been reduced following the forfeiture of the arms. Either the imposition of fine by Judge Strettell was lawful, or if not lawfully imposed, was the same sum imposed by Judge Erber. Either way the appeal is asking for the sentence of $400 to be reduced. What I am satisfied of, is that Judge Strettell did have the power to order forfeiture under the Arms Act. So therefore I am treating the appeal as against both Judge Erber and Judge Strettell. The way is then clear for me to consider the sentence and the forfeiture issue.

[18] I deal firstly with forfeiture and then turn to sentence.

[19] I am quite satisfied that Judge Strettell’s reasoning for forfeiture is sound and the forfeiture should not be disturbed. My reasons are very similar to those of Judge Strettell in paragraph [8] of his decision. The scheme of the Arms Act is that persons are licensed to possess firearms. The purpose of the Arms Act is that possession of firearms by persons who are not licensed is to be deterred in order to protect the community. Once the conviction is in place Mr Brown is exactly in that position. Parliament provides for forfeiture under the Arms Act independently of forfeiture provisions in the Sentencing Act.

[20] The separate provision in the Arms Act reinforces what is obvious, that forfeiture is intended to be a mechanism designed to achieve the purpose of the Arms Act by ensuring that only persons licensed to possess firearms do so possess firearms.

[21] I then turn to the question of penalty.

[22] Mr Starling argued that it cannot be right for these three firearms, worth approximately $6,000 I am told, to be forfeited and a fine of $400 imposed when the maximum fine is $1,000. I see no difficulty in that at all. This is not a situation where Parliament ever intended that the maximum penalty for possession of firearms when being unlicensed would be $1,000. On the contrary, Parliament intended to provide for forfeiture and for fines. I see no difficulty in a fine of $400 standing alongside forfeiture, and neither did Judge Strettell.

[23] For these reasons the appeal against sentence is dismissed and also the appeal that forfeiture of arms should not have been ordered is also dismissed. The result is, and out of an abundance of caution, the fines are reimposed in this Court in the sum of $400 together with the same order for costs as made in the District Court of

$130.89 and there is an order made for forfeiture of the guns and the ammunition.

Solicitors:

M Starling, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent

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[1] R v Shaheed [2002] 2 NZLR 377
[2] R v Williams [2007] 3 NZLR 207