De Boer v Attorney-General - [2024] NZHC 3551

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001949

[2024] NZHC 3551

UNDER THE NEW ZEALAND BILL OF RIGHTS ACT 1990

BETWEEN

DIRK WILLEM DE BOER

Appellant

AND

ATTORNEY-GENERAL

Respondent

Hearing:
24 September 2024

Further submissions 8 and 22 October 2024

Appearances:

G E Minchin for Appellant A P Lawson for Respondent

Judgment:

5 December 2024

JUDGMENT OF WHATA J

Appeal

This judgment was delivered by me on 5 November 2024,
pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors / Counsel: Exeo Legal, Auckland G E Minchin, Auckland Crown Law, Wellington

DE BOER v ATTORNEY-GENERAL [2024] NZHC 3551 [5 December 2024]

[1] Mr de Boer submitted in opposition to the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill 2019 (the Bill). He made a Facebook post referring to his .22 calibre rifle with a built-in magazine that would become unlawful if the Bill became law. An informer emailed the police about this, attaching a partial screenshot of the post. Several months later, after the Bill was passed into law and the specified amnesty period had expired, the police applied for a search warrant to search Mr de Boer’s home. The application, among other things, attached a copy of the screenshot and included information that identified Mr de Boer as the “co-founder” of a “right-wing political group” with the following statement:

It should be noted that this in itself is not information that supports my suspicion of firearms related offending, however when observed in the context of DE BOER’S post about his lever action rifle it does indicate a high level of dissatisfaction with the amendment of the Arms Act. This level of dissatisfaction could possibly result in an intent to keep the prohibited firearm/magazine.

[2] A search warrant was then issued to search Mr de Boer’s home for the rifle. They did not find one. Mr de Boer sues them for trespass, breach of the New Zealand Bill of Rights Act 1990 (NZBORA) and abuse of process. His claim failed in the District Court.1 This is his appeal.

A problem

[3] During the course of the hearing before me, a problem with the warrant application assumed prominence. The screenshot of the post included in the application was not a complete copy of that post. It omitted to include the following comment that appeared immediately under the picture of the rifle:

1 de Boer v Attorney General [2023] NZDC 15478.

[4] In my view, this was a serious omission. The post taken as a whole was clearly an expression of political speech inviting participation in the legislative process. It casts doubt on the reasonableness of an inference sought to be drawn by the police that his dissatisfaction could possibly result in an intent to keep the prohibited firearm. On the contrary, it suggests that Mr de Boer is actively seeking to promote engagement in the democratic process in a way that is consistent with the…

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.

Keep reading for free

Create a free CaseChat account to read De Boer v Attorney-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 3551
Decision Date: 5 December 2024

CaseChat Overview and Summary

Dirk Willem de Boer appeals against the District Court’s judgment that dismissed his claims for trespass, breach of the New Zealand Bill of Rights Act 1990 (NZBORA), and abuse of process. The appeal concerns a search of his home for a prohibited firearm in the context of the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill 2019. The appeal was heard by Whata J on 5 December 2024. The appeal was allowed, and a declaration of invalidity and breach of s 21 of NZBORA was made.

The issues before the Court were whether the police acted in bad faith, whether they had a reasonable basis for the search warrant, and whether the search was unreasonable. The Court found that there was no bad faith, but the warrant application was flawed due to an omission that led to a miscarriage of justice. The search itself was not unreasonable.

The Court considered that the omission of a comment on Mr de Boer’s Facebook post, which linked to the Select Committee process, was significant. The full post indicated that Mr de Boer was engaging in political free speech, rather than expressing dissatisfaction with the law that might suggest a risk of illegal possession of the firearm. This omission led to an unfair impression of Mr de Boer, which undermined the reasonableness of the warrant application. The Court concluded that a judicial officer, fully informed about the content of the post and the significance of political free speech, would likely have declined the application or sought further information. The failure to include this comment caused significant prejudice to Mr de Boer.

Orders