| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA42/2020 |
| BETWEEN | BENJAMIN HARRY TIMMINS |
| AND | THE KING |
| Hearing: | 1 October 2024 |
Court: | Collins, Brewer and Osborne JJ |
Counsel: | Appellant in person |
Judgment: | 18 December 2024 at 12 pm |
JUDGMENT OF THE COURT
The appeal against conviction is allowed in part. The conviction for unlawful possession of ammunition is set aside. There is to be no retrial.
____________________________________________________________________
REASONS OF THE COURT
(Given by Collins J)
Introduction
Following a trial before Judge Spear and a jury in 2019, Mr Timmins was convicted in relation to three charges: cultivation of cannabis, unlawful possession of ammunition and theft. He was sentenced to 11 months’ home detention and ordered to pay reparation.[1] He now appeals his conviction.
[1]R v Timmins [2019] NZDC 25927 [sentencing notes].
The charges arose from a police search of a property in Whanganui (the property) on 21 December 2016. The police found:
(a)a cannabis growing shed at the rear of the property which contained 58 cannabis plants;
(b)204 rounds of ammunition and other items associated with guns in a bedroom; and
(c)a power meter that had been altered to prevent it correctly recording the amount of power that was used at the property.
The grounds of appeal may be summarised in the following questions:
(a)Did Judge Roberts err when, in a pre-trial ruling, he determined that the evidence found at the property was admissible?[2]
(b)Did a miscarriage of justice arise through the police obtaining documents from various government agencies for the purposes of comparing Mr Timmins’ handwriting with documents found at the property?
(c)Did Judge Spear cause a miscarriage of justice when he directed the jury on issues associated with the charge laid under the Arms Act 1983?
(d)Did Mr Waugh, Mr Timmins’ trial counsel, cause a miscarriage of justice by failing to properly advise Mr Timmins about giving evidence or otherwise in presenting his defence?
Appeals against conviction
[2]R v Timmins [2017] NZDC 22297 [pre-trial ruling].
Under s 232 of the Criminal Procedure 2011, we must allow the appeal if we are satisfied a miscarriage of justice has occurred for any reason.[3]
[3]Criminal Procedure Act 2011, s 232(2)(c).
A “miscarriage of justice”:[4]
… means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial was a nullity.
Representation
[4]Section 232(4).
As we have just noted, Mr Waugh represented Mr Timmins at his trial. Mr Timmins did not have counsel in relation to the pre-trial hearing concerning the admissibility of the evidence mentioned above at [3(a)]. Following his conviction, Mr Timmins terminated his instructions to Mr Waugh. This Court became concerned about the extraordinary delays that were occurring in having Mr…
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- Case
- [2024] NZCA 678
- Decision Date
CaseChat Overview and Summary
The legal issues at the heart of the case revolved around the criteria for determining whether evidence is improperly obtained and, if so, whether the exclusion of such evidence is proportionate to the impropriety involved. The court had to consider whether the evidence was obtained in breach of any enactment or rule of law or unfairly, as defined in the Evidence Act. Additionally, the court needed to balance the seriousness of the impropriety against the necessity of the evidence for maintaining an effective and credible system of justice. This required a careful analysis of various factors, such as the nature of the impropriety, the importance of the breached rights, and the availability of alternative investigatory techniques.
In its reasoning, the court meticulously followed the statutory framework provided by section 30 of the Evidence Act. The court first assessed the balance of probabilities to determine if the evidence was improperly obtained. Upon finding that the evidence was indeed improperly obtained, the court proceeded to a balancing exercise to decide if excluding the evidence was proportionate to the impropriety. The court considered the factors listed in subsection 3 of the Act, including the nature and quality of the evidence, the seriousness of the offence, and the availability of alternative remedies. Ultimately, the court concluded that the exclusion of the improperly obtained evidence was proportionate to the impropriety involved, and thus, ordered the evidence to be excluded from the proceedings.
The final orders of the court were that the improperly obtained evidence would not be admitted in the proceedings against Benjamin Harry Timmins. This decision underscored the importance of upholding legal standards and the rights of the accused while ensuring that the justice system remains effective and credible.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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