C v Police HC Christchurch CRI 2006-409-38

[2006] NZHC 419

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000038

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 April 2006

Appearances: Appellant appears in person

R Roberts and Z Johnston for Respondent

Judgment:      27 April 2006

ORAL JUDGMENT OF HON JUSTICE JOHN HANSEN

The appeals against conviction and sentence are dismissed.

REASONS

[1]      The appellant, Mr C  , appeals against both conviction and sentence. He was prosecuted for two offences under s 23 of the Arms Act 1983 following a defended hearing in front of his honour Judge Ryan.   He was convicted on 19

January 2006 on both charges and he was fined $350 with court costs of $130.

C V POLICE HC CHCH CRI 2006-409-000038  27 April 2006

[2]      It is apparent that the appellant, and I imagine those in court supporting him today, have a view that there exists in New Zealand certain common law rights that take precedence over legislation passed by our duly elected Parliament.

[3]      The thrust of this  appeal  is  that  the appellant  had  a common  law  right, imported from the English common law, to have in his possession guns and rifles for the purposes of self-defence and food gathering.  That right, he says, transcends any legislation passed by the duly elected Parliament.  He further says that registration under the Arms Act involves a transfer of ownership to the Government, which he described as a state trust.  He is of the view that any form of registration with central Government, for example the registration of a vehicle, amounts to a transfer of ownership.

[4]      There are a number of other matters he raised.  He questions the expertise and independence of the police armourer, Const Hewitt.

[5]      He further argues that the Act only covers firearms and guns and rifles are not firearms.

[6]      He complains that the Crown have failed to discharge the onus on them of establishing the elements of the charge beyond reasonable doubt.  He said there was a failure to identify the holder of the legal title to the shotgun and rifle in question.

[7]      However, the essential thrust is the first one I mentioned, that is the common law rights enshrined by the Bill of Rights Act 1668 override any provision of the Arms Act.

[8]      While I respect the appellant’s views, and those of the people in court who support him, it is unfortunately simply not the law of New Zealand.  Common law is Judge made law.  The Judges in this country are, by way their oaths on swearing in, subject to apply the law of New Zealand.   The law of New Zealand in the main consists of legislation passed by Parliament.   In certain limited areas the common law still exists.  In this case there has been nothing put before the Court to suggest

that the English common law right to possess guns and rifles for matters of self- defence or food gather overrides the Arms Act.

[9]      It is necessary to consider that Act and its terms.  It is an Act properly passed by Parliament, obtaining assent on 29 November 1983.  It is an Act to consolidate and amend the law relating to firearms and to promote both the safe use and the control of firearms and other weapons.  In its definition clause a “firearm” is defined as:

(a)Means  anything  from  which  any  shot,  bullet,  missile,  or  other projectile can be discharged by force of explosive; and

(b)      Includes—

(i)Anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and

(ii)      Anything  which  is  not  for  the  time  being  capable  of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph; and

(iii)      Anything (being a firearm within the meaning of paragraph (a) of this definition or subparagraph (i) of this paragraph) which is for the time being dismantled or partially dismantled; and

(iv)     Any specially dangerous airgun

[10]     A “firearms licence” means “a firearms licence issued under section 24 of this Act”.

[11]     Section 23 and following deal with firearms licences.   It is apparent that Parliament has determined that it is proper to have a licensing system for firearms for the control of firearms within New Zealand, and for the promotion of their safe and proper use.  The Act requires that every holder of a firearm is required to licence that firearm.

[12]     The Act, in my view, clearly overrides any common law right so that if someone is in possession of a firearm they are required, pursuant to s 23, to apply of

a firearms licence, and only to be in possession of firearms as so defined in the Act if they are holders of a licence.

[13]     It is clear that guns and rifles fall within the definition of firearms I have just set out above.

[14]     Secondly, there was clear evidence of that before the Judge from the police armourer, Const Hewitt.  He is a police officer but he is an expert in such matters.

[15]     What the Crown were required to establish in this case beyond reasonable doubt was firstly that the things the subject of the charges were firearms.  Clearly a rifle and a shotgun are firearms within the definition of the Act.  Secondly, that they were within the possession of the appellant.  There was evidence, that the Judge was entitled to accept, from Const Hughey. What he said in his brief was:

I asked if he had any guns and he replied “yes, in the cabinet out back”.

He unlocked the cabinet and removed two firearms – a shotgun and a .22 magnum rifle.

That is clearly enough to establish possession.

[16]     It is, of course, a defence if a person in possession of firearms is over the age of 16 years and is the holder of a firearms licence.  The appellant is clearly over the age of 16 years.  It is also clear from the evidence of Mr Lynch that he not the holder of a firearms licence.  Indeed, he was written to in relation to the need to renew his licence and chose not to, relying on his view of the New Zealand constitutional position that the common law overrides a properly enacted Act, the Arms Act.  That is simply not the case.

[17]     Citizens of New Zealand  do not have the right to choose what system of law they will operate under.   All New Zealand citizens are subject to the law of New Zealand, and subject to the Arms Act.  The appellant has made a choice, because of his own views, not to comply with that Act.

[18]     The elements of the charge were proved  and it is clear that this is an appeal without merit based on, no doubt, a sincere but misguided view of the constitutional position in New Zealand.

[19]     Furthermore,   it   cannot   be   said   that   the   sentence   imposed   in   the circumstances, given the maximum fine available, was manifestly excessive or inappropriate.

[20]     However sincere his beliefs may be, the reality is that the appellant has chosen deliberately not to comply with the provisions of the Arms Act.  Accordingly both the appeals against conviction and sentence are dismissed.

CC:

Judge Ryan