BENJAMIN HARRY TIMMINS AND THE KING - [2024] NZCA 678

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA42/2020
[2024] NZCA 678

BETWEEN	BENJAMIN HARRY TIMMINS Appellant
AND	THE KING Respondent

Hearing:	1 October 2024
Court:	Collins, Brewer and Osborne JJ
Counsel:	Appellant in person S C Baker for Respondent V C Nisbet and S W O Campbell as counsel to assist the Court
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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZCA 678
Decision Date: 18 December 2024 at 12 pm

CaseChat Overview and Summary

The case of Benjamin Harry Timmins and the King involved a criminal proceeding where the defendant raised an issue about the admissibility of evidence that was allegedly obtained improperly. The case was heard in the relevant Australian court where the defendant contested the use of certain evidence due to its alleged improper procurement. The core of the dispute centred around the interpretation and application of section 30 of the Evidence Act, particularly in determining the admissibility of evidence that was obtained under circumstances that breached legal standards.

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

The relevant parts of s 30 of the Evidence Act state:[11][11]Emphasis in original.30 Improperly obtained evidence(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or…(2) The Judge must—(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:(c) the nature and quality of the improperly obtained evidence:(d)the seriousness of the offence with which the defendant is charged:(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:(h)whether there was any urgency in obtaining the improperly obtained evidence.(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.(5)For the purposes of this section, evidence is improperly obtained if it is obtained—(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or…(c) unfairly.(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice. Thus, s 30 of the Evidence Act sets out the sequential steps required to determine whether or not evidence has been improperly obtained, and if it has been improperly obtained, whether or not it is nevertheless admissible. It is a two-step process:(a)First, the Judge is required to determine on the balance of probabilities whether or not the evidence was improperly obtained.(b)Secondly, if the evidence was improperly obtained, the Judge would then undertake a balancing exercise to determine whether or not excluding the evidence was proportionate to the impropriety. The balancing exercise undertaken at this stage requires appropriate weight to be given to the impropriety and for a proper account to be taken of the need for an effective and credible system of justice. The matters set out in subs (3) may be relevant to the balancing exercise undertaken pursuant to subs (2)(b).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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