Campbell v The King

[2025] NZHC 2064

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2025-483-023

[2025] NZHC 2064

BETWEEN

ANTHONY ALEXANDER CAMPBELL

Applicant

AND

THE KING

Respondent

Hearing:	22 July 2025
Appearances:	I J G Hensman for Applicant K D Turner for Respondent
Judgment:	25 July 2025

JUDGMENT OF GRICE J

(Application for extension of time to appeal against conviction)

Introduction

[1]    Anthony Campbell was convicted on one charge of unlawful possession of a firearm,1 after entering a guilty plea in the District Court at Whanganui. He was also convicted one charge each of unlawful possession of an explosive (ammunition),2 possession of cannabis resin,3 and failure to carry out obligations in relation to a computer search,4 along with two charges of assault on a person in a family relationship.5 He was sentenced for those charges to six months’ community detention and 18 months’ intensive supervision on 11 November 2023.6

1      Arms Act 1983, s 45(1) — maximum penalty four years’ imprisonment or $5,000 fine.

2      Arms Act, s 45(1) — maximum penalty four years’ imprisonment or $5,000 fine.

3      Misuse of Drugs Act 1975, s 7(1)(a) and (2) — maximum penalty three months’ imprisonment or

$500 fine.

4      Search and Surveillance Act 2012, s 178 — maximum penalty three months’ imprisonment.

5      Crimes Act 1961, s 194A — maximum penalty two years’ imprisonment.

6      New Zealand Police v Campbell [2023] NZDC 29731 [sentencing decision].

CAMPBELL v R [2025] NZHC 2064 (25 July 2025)

[2]    Mr Campbell now seeks to appeal against the conviction for unlawful possession of a firearm. He applies for leave for an extension of time to bring the appeal, as he has only recently received legal advice regarding his conviction. The proposed grounds of appeal are that he was wrongly charged and convicted because the Police summary of facts only referred to the stock of a firearm, and an actual firearm was never located.

[3]    The Crown opposes the appeal, and says that counsel for Mr Campbell is mistaken in concluding that the firearm stock located by police is what formed the basis of the charge.  Rather,  the  charge  was  based  on  a  text  message  sent  by Mr Campbell, from which it could be inferred he had the requisite possession of the firearm.

Background

[4]    In relation to the charge of unlawful possession of a firearm, the summary of facts recorded that on 26 March 2023, at about 11.00 pm, Mr Campbell sent a text message to an associate offering to give her his AR7 rifle as payment for drugs. At

10.00 am on 13 June 2023, police executed a search warrant at Mr Campbell’s home address and located the stock to an AR7 rifle in his wardrobe. An AR7 is a .22 calibre tactical rifle that can be broken down, with all the working parts able to be stored inside the stock of  the  rifle.  The  working  parts  of  the  rifle  were  not  located. Mr Campbell commented that police had taken the rest of the AR7 rifle when they took his firearms licence five years ago.

[5]    Mr Campbell was represented by a lawyer at the time he entered his guilty plea and at sentencing on 11 November 2023. He had initially pleaded not guilty to that charge, as well as the charges of possession of cannabis, possession of ammunition, and failing to carry out obligations in relation to a computer search.7

7 At [5].

Approach on appeal

[6]    Mr Campbell seeks to appeal against his conviction under s 229 of the Criminal Procedure Act 2011. The appeal court must allow the appeal only if it is satisfied that a miscarriage of justice has occurred.8 A miscarriage of justice means any error, irregularity, or occurrence, in or relating to or affecting the trial, that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.9 For the purposes of that definition, a trial includes a proceeding in which the appellant pleaded guilty.10

[7]    It is only in exceptional circumstances that an appeal against conviction will be entertained following a guilty plea.11 The appellant must show that a miscarriage of justice will arise if the appeal is not overturned. There are three broad categories in which an appeal against conviction may be allowed where the appellant has pleaded guilty, namely if:12

(a)the appellant did not appreciate the nature of the charge or did not intend to admit their guilt;

(b)on the admitted facts, the appellant could not have been guilty of the offence charged; or

(c)the plea was induced by a ruling which embodied a wrong decision on a question of law.

Relevant law

[8]“Firearm” is defined under s 2 of the Arms Act as follows:

firearm—

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

8      Criminal Procedure Act 2011, s 232(2)(b) and (c).

9      Section 232(4).

10     Section 232(5).

11     R v Le Page [2005] 2 NZLR 845 (CA) at [16].

12     At [17]–[19].

(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) or subparagraph (i); and

(iii)anything (being a firearm within the meaning of paragraph

(a)   or subparagraph (i)) which is for the time being dismantled or partially dismantled; and

(iv)any specially dangerous airgun

[9]    Possession at law requires physical custody or control, as well as knowledge of and an intention to exercise that custody or control.13 In the wording of the offence under s 45 of the Arms Act, “possessing” is presented as an alternative to “carrying” a firearm, indicating that its definitional scope is wider than physically holding a firearm. As the Court of Appeal noted in Simon v R:14

[15] Custody may indicate control but custody is not determinative of possession as custody may be innocent. Conversely, a lack of custody does not necessarily mean a lack of control, as control of an item can be exercised by directions to another. Control in this context involves the idea of a person having the power to direct what happens to the object.

Proposed grounds of appeal

[10]   Ms Hensman, for Mr Campbell, submits that the guilty plea was entered on the basis of a summary of facts upon which Mr Campbell could not have been guilty of the offence charged. She argues that the stock of a firearm does not meet the definition of a firearm under the Arms Act.

[11]   In response, Ms Turner for the Crown submits that there was sufficient evidence outlined in the summary of facts on which to base a conviction, including both the possession of the stock, and the fact Mr Campbell had sent a text offering to

13     Bennett v R [2016] NZCA 170 at [19].

14     Simon v R [2017] NZCA 277 (footnotes omitted).

sell the firearm. In addition, she points to the acknowledgement by Mr Campbell of the allegations giving rise to the offence as set out in the summary of facts, and to the remaining elements of the offence, through entry of his guilty plea.

[12]   On the morning of the hearing, Ms Hensman handed up further submissions covering a number of new arguments and authorities. In view of the late notice of these new arguments, the matter was stood down to give the Crown adequate time to respond.

Analysis

[13]   Ms Hensman’s initial submissions went to the issue of whether or not a stock alone falls within the definition of a firearm. There is authority in support of her argument that  it  does  not.15  However that  was  not  the issue in this  appeal.  As Ms Hensman recognised in her submissions at the hearing in response to the Crown’s written submissions, the focus is properly on whether the summary of facts provided an adequate evidential basis for the offence.

[14]   Ms Hensman outlines five main points in support of her contention that there was not a sufficient basis for the offence: first, the existence of the firearm is an element of the offence; second, an offer to sell does not prove the existence of a firearm; third, the Arms Act differentiates between offering to sell a firearm and possessing a firearm; fourth, potential control or custody of a firearm does not amount to possession in law; and fifth, the summary of facts created a prima facie case for a charge of offering to sell a firearm, but not for possession of a firearm.

[15]   Elaborating on those submissions, Ms Hensman says that if an item does not exist it cannot be possessed, even if there is an intention to possess it. In support of this she cites Simi v R, in which the appellant had pleaded guilty to a charge of possession of methamphetamine, but it became apparent in the course of argument on

15     The only basis for a stock alone to come within the primary definition of firearm would be that it is something which “by its completion” would be a firearm: Arms Act, s 2 definition of “firearm”, subs (b)(ii). In Police v Jackson [1980] 1 NZLR 78 (SC) at 81, the Judge noted while a firearm with a missing bolt met the definition of a firearm, the bolt on its own would not be sufficient, as it did not have “the general characteristic of a firearm”. By analogy, it is arguable that the stock on its own is not a firearm, as it does not have that “general characteristic”.

appeal against sentence that the supposed methamphetamine was in fact sugar.16 The issue was not before the High Court and therefore was only briefly mentioned in that decision, however Ms Hensman points to commentary noting that as the result of the discovery, a subsequent conviction appeal might have been appropriate.17

[16]   In relation to the second to fourth points, Ms Hensman submits that a defendant cannot be found guilty of possessing an item that does not exist, but can offer to sell a non-existent item.18 She notes that the Arms Act provides different offences for offering to sell a firearm and possessing a firearm.19 Ms Hensman further submits that potential control or custody of a firearm does not amount to possession at law, citing the Court of Appeal decision in Simon v R.20 The Court commented, in relation to possession of drugs, that a defendant might have “the possible ability to get control of drugs at some time in the future”, but not have any actual control at the time of the alleged offence.21 It would be wrong to convict in such circumstances.

[17]   In relation to the fifth point, Ms Hensman argues that the facts outlined in the summary of facts give rise to proof of the existence of a firearm, and a guilty plea does not remedy the lack of a prima facie case. She points to the decision in McIntyre v R, where a conviction on a charge of accessory to murder was set aside on the basis that, following the entry of the appellant’s guilty plea, the principal had been acquitted of murder.22 The Court of Appeal noted that the appellant could not be an accessory to a murder that did not occur.23

[18]   However, Ms Hensman’s arguments overlook the fact that the evidence is circumstantial. It is common in criminal trials for the prosecution to rely on inferences drawn from the evidence to prove elements of an offence.24 The summary of facts to

16 Simi v R [2016] NZHC 1794 at [56].

17 See Mathew Downs (ed) Adams on Criminal Law — Offences and Defences (online ed, Thomson Reuters) at [MD7.06].

18     She cites several cases in support of this proposition: see R v Brown [1978] 2 NZLR 174 (CA); R v Awatere CA123/01, 20 June 2001; and Wilson v Police HC Auckland CRI-2003-404-377, 2 March 2004.

19 See Arms Act, s 43.

20 Simon v R [2017] NZCA 277

21 At [17].

22     McIntyre v R [2017] NZCA 579, [2018] NZAR 43.

23 At [2].

24     Do v R [2024] NZCA 97 at [23]. An inference is a conclusion drawn from established facts, or from evidence that is accepted as reliable.

which Mr Campbell pleaded guilty referred to both a text message and the discovery of the stock, indicating that both would have been relied upon by the prosecution if the matter had gone to trial. There is nothing to indicate that the text message would have been inadmissible.

[19]   In addition, Mr Campbell pleaded guilty to the charge following legal advice, and there is no evidence to suggest he did not understand the nature of the charge upon entering his plea. Ms Turner submits that when a guilty plea is entered, the essential elements of the charge must have been accepted as a matter of law. Under s 24(1)(b) of the Sentencing Act 2002, in determining a sentence the judge “must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt”.25 Ms Turner also refers to the case of R v Hall, in which the High Court, citing the decision of the Court of Appeal of England and Wales in R v Rimmer, said:26

The Court of Appeal (Criminal Division) said that a plea of guilty has two effects: first of all, it is a confession of fact; secondly it is such a confession that without further evidence the Court is entitled to and normally will act upon it with the result of a conviction.

[20]   R v Rimmer concerned the issue of whether a plea of guilty that had subsequently been withdrawn could be relied upon at trial. Ms Hensman submits that the passage cited says no more than that a guilty plea is a confession of fact that the Court is usually entitled to act upon by entering a conviction — it does not suggest a guilty plea equates to an admission of every element of the offence. Mr Campbell accepts that his guilty plea was an admission of the facts outlined in the Police summary of facts, however the issue is whether the admitted facts made out the charge.

[21]   Nevertheless, I accept Ms Turner’s submission for the Crown that there was sufficient evidence for Mr Campbell to be convicted of the charge. Even without any acknowledgement of the elements of the offence beyond the facts set out in the summary of facts, the possession of the stock together with the text message offering

25 Ms Turner referred to the case of Clear v R [2025] NZHC 1538 at [70], in support of the proposition that denial of an essential fact is not capable of dispute. However, as Ms Hensman points out, that observation was made in the specific context of the fact of impairment in relation to driving with cannabis exceeding the high-risk level in his blood, where the appellant had pleaded guilty to strict liability offence.

26 R v Hall HC Napier T142/90, 6 August 1991 at 435, citing R v Rimmer [1972] 1 All ER 604.

the gun for sale would have been sufficient to establish a prima facie case in the circumstances. Actual custody was not required.

[22]   Furthermore, this was not a case of potential control. The text supported the fact that Mr Campbell had the power to direct what happened to the firearm, indicating that he had control of it.27 Nor is this a case such as Simi, where the evidence which formed the basis of the allegation has been undermined, or McIntyre, where committing the offence to which the guilty plea had been entered was impossible. Here, there was a  sufficient  factual  basis  to  establish  a  prima  facie  case.  As  Ms Hensman acknowledged, the police were not required to produce the firearm in order to prove the charge.

[23]   In addition, the fact that the allegations might have also given rise to a charge of offering to supply a firearm is of no consequence. In many cases the evidence may give rise to a number of different or alternative charges. It is for the prosecution to determine what charges to lay, and in this case, Mr Campbell pleaded guilty to the possession charge.

[24]   Mr Campbell was legally represented by experienced counsel when he entered his plea. There was no ground of appeal pursued concerning trial counsel competence and Ms Hensman specially indicated that was not part of her submission.28 Nor was there any argument that trial counsel had not followed Mr Campbell’s instructions in entering the plea, or a mistake had been made by Mr Campbell in entering the plea. There is, however, an indirect criticism in that it is argued the advice to plead guilty was incorrect.29 However, for the reasons set out above, I do not consider that to be the case.

[25]   In conclusion, there has been no miscarriage of justice. Mr Campbell has not established that, on the admitted facts contained in the Police summary of facts, he could not have been guilty of the offence charged.

27     Simon, above n 14, at [15].

28     If that were a ground of appeal, the appellant was required to follow the procedure under the Court of Appeal (Criminal) Rules 2001, r 12A.

29     Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].].

Leave to appeal out of time

[26]   The appeal is filed approximately 17 months out of time.30 Mr Campbell seeks leave to appeal out of time for reason that he was not advised by the lawyer acting at the time that his conviction for possession of a firearm was unsound and able to appealed. The Crown opposes leave being granted on the basis that the appeal has no merit.

[27]   The touchstone for determining whether an application for an extension of time to apply for leave to appeal should be granted is the interests of justice.31 Relevant considerations for whether an extension should be granted may include the strength of the proposed appeal and the utility of the remedy sought, the length of the delay, the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, and the absence of prejudice to the Crown.32

[28]   While it is only one of the relevant factors listed, the Court of Appeal has noted that, in reality, whether the proposed appeal has merit will be determinative of the interests of justice, and therefore the application for leave.33 For the reasons set out above, the appeal lacks merit. Furthermore, the reason for the delay, being the late acquisition of proper legal advice, is of little weight in light of that conclusion and the fact that Mr Campbell was represented before and at the time of entering the plea of guilty.

[29]   As is apparent from my analysis above, I do not consider the proposed appeal has merit. Moreover, there has been considerable delay. Therefore, an extension of time to appeal is not appropriate in the circumstances.

30 A conviction appeal must be filed within 20 working days after the date of sentence for the conviction appealed against. However, this Court is permitted to grant an extension of time for filing a notice of appeal: Criminal Procedure Act, s 231.

31 Ellis v R [2019] NZSC 83 at [15], citing R v Knight [1998] 1 NZLR 583 (CA) at 587; and R v Lee

[2006] 3 NZLR 42 (CA) at [95]–[99].

32 Knight, above n 31, at 589.

33 Smith v R [2020] NZCA 221 at [3].

Conclusion

[30]   The proposed grounds of appeal against conviction lack merit. It follows that the interests of justice do not require an extension of time to be granted.

[31]The application for extension of time to appeal is declined.

Grice J

Solicitors:

Cullinane Steele Limited, Wellington for Applicant C & M Legal, Whanganui for Respondent