Brown v Police [2012] NZHC 598 (30 March 2012)

Last Updated: 24 June 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000045 [2012] NZHC 598

BETWEEN TERRY REX BROWN Appellant

AND POLICE Respondent

Hearing: 19 March 2012 (by telephone) (Heard at Auckland)

Counsel: G J X McCoy and K J McCoy for Appellant

K B Bell for Respondent

Judgment: 30 March 2012

_{JUDGMENT OF FOGARTY J}

This judgment was delivered by Justice Fogarty on

30 March 2012 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Christopher Morrall, PO Box 1935, Christchurch 8140

Raymond Donnelly & Co., Crown Solicitors, PO Box 533, Christchurch 8140

Copy to:

G J X McCoy, PO Box 2838, Christchurch 8140

BROWN V POLICE HC CHCH CRI-2011-409-000045 [30 March 2012]

[1] This is an application for leave to appeal to the Court of Appeal from a decision of the High Court delivered by me orally on 31 August 2011.

[2] Three shots were heard from a rural property owned by the applicant, Mr Brown, who was also known to the police. There was an armed police officer response. As they approached the property they found Mr Brown leaving it. They spoke to him and took him back to the property, searching the property relying on s 61 of the Arms Act 1983. There they found three valuable shot guns.

[3] There was an affidavit filed in the High Court, but it would appear, not before the District Court, saying that the shots heard were rifle shots, not gun shots.

[4] At the heart of adjudication of this case were some procedural problems. The appellant was convicted by Judge Strettell, fined by Judge Erber, who then remitted the question of forfeiture of the firearms to Judge Strettell, who then conducted a hearing on the basis that it was a rehearing, reimposing a fine of $400 and ordering three firearms on the property to be forfeited.

[5] On 31 August 2011, I was troubled by the issues of jurisdiction. In the end I treated the appeal as against Judge Erber’s order as well as Judge Strettell, dismissed both the appeal against sentence and the appeal against forfeiture, but out of abundance of caution reimposed the fines exercising the jurisdiction of the High Court on appeal and remade the orders for forfeiture of the guns and ammunition.

[6] All persons are entitled to the same standard of procedural rights. Mr McCoy has identified four questions of law for leave to appeal as follows:

1. Was the police search lawful and reasonable pursuant to s 61 Arms Act 1983 when the unchallenged evidence was that the complainant the Police were acting on, concerned the applicant’s safety, yet Police found him safely outside the property, prior to the search being undertaken?

2. Did the District Court Judge have jurisdiction to hear and determine the rehearing under s 75 Summary Proceedings Act, at the application of the Police, when that Judge had not been the Judge who imposed the original sentence?

3. If the Judge did have jurisdiction to hear and determine the rehearing, was their jurisdiction under s 75 Summary Proceedings Act to increase the original sentence, on the application of the police?

4. Was it correct in law or so disproportionate as to be unreasonable to sentence by imposing a discretionary forfeiture order alongside a fine when the value of the items to be forfeited was 15 times the fine?

[7] Ms Bell has added a fifth question:

Whether or not the High Court having dismissed the appeals had the power to reimpose out of caution the sentence and forfeiture orders?

[8] I am of the view that questions 2 and 3, particularly, warrant this case going to the Court of Appeal. Given that those two issues are going it seems to me appropriate that the other questions should be addressed as well.

[9] Accordingly, leave to appeal is granted removing those five questions to the

Court of Appeal.