Derrett v Police
[2024] NZHC 408
•1 March 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2023-412-89 CIV-2023-412-90
CIV-2023-412-91 [2024] NZHC 408
BETWEEN CHRISTOPHER NOEL DERRETT NATHAN ZACH DERRETT
ALEXANDRIA SAMANTHA DERRETT
AppellantsAND
NEW ZEALAND POLICE
Respondent
Hearing: 29 February 2024 Appearances:
G A Paine for Appellant
R D Smith for Respondent
Judgment:
1 March 2024
JUDGMENT OF EATON J
(application for leave to appeal)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
DERRETT v NEW ZEALAND POLICE [2024] NZHC 408 [29 February 2024]
Introduction
[1] Christopher Derrett (Mr Derrett) is the father of Nathan (Nathan) and Alexandria Derrett (Alexandria). On 27 April 2019, Mr Derrett’s firearms licence was revoked by police under s 27 of the Arms Act 1983 (the Act) on the grounds he was not a fit and proper person to hold a licence. As at the date of the revocation, Mr Derrett and Alexandria were residing within the family home. Nathan was living in Auckland. Nathan and Alexandria held firearms licences and owned firearms that were secured within the family home. Police revoked the firearms licences of Nathan and Alexandria on the grounds it was reasonably likely Mr Derrett might access their firearms.
[2] All three appealed the revocation of their licences to the District Court under s 62B of the Act. Following an evidential hearing on 29 August 2022, Judge Spear dismissed their appeals on 23 February 2023.1 The appellants apply for leave to appeal that decision.
An appeal under the Arms Act
[3] Section 64 of the Act permits an appeal to this Court from a decision made by the District Court under s 62(B). Section 64 relevantly provides that Subpart 8 of Part 6 of the Criminal Procedure Act 2011 (CPA) is applicable with the necessary modifications to every appeal under that section. Within Subpart 8 is s 296, which provides for a right of an appeal with leave on a question of law. Section 298 requires an appellant to set out, within an application for leave to appeal, the question of law said to arise in the appeal.
The proposed questions of law
[4]The proposed questions of law as articulated in the application for leave are:
(a)With respect to Nathan and Alexandria’s unlawful discrimination upon the grounds that they are or were members of the household of Christopher Noel Derrett, such discrimination being in breach of Alexandria and Nathan’s human rights.
1 Derrett v New Zealand Police [2023] NZDC 2559.
(b)With respect to Christopher Derrett the questions of law are described as relating to the onus of proof as follows:
(i)Does this ever shift from the respondent to the appellant?
(ii)Following the decision being made, it was improper and in breach of the New Zealand Bill of Rights Act 1990 for the Court to refer to incidents allegedly occurred following the police decision to revoke Mr Derrett’s firearms licence.
(iii)That the Court gave undue weight to matters which on their own did not constitute on the balance of probabilities matters which should be taken into account.
Extension of time
[5] Mr Paine, on behalf of all three appellants, applies for an extension of time for the filing of the leave application. The District Court decision was released on 23 February 2023. Pursuant to s 298(3) of the CPA, a notice of application for leave to appeal must be filed within 20 working days after the date of the ruling. On 12 May 2023, Mr Paine filed the application for leave to appeal on behalf of all three appellants. That application was filed in the District Court and was non-compliant in that it failed to identify questions of law.
[6] On 24 August 2023, and following a request made by Mr Paine, Associate Judge Paulsen convened a telephone conference with counsel. Mr Paine said he had been advised to file the application in the District Court but, following opposition, sought to file the application in this Court. Associate Judge Paulsen identified the deficiencies in the application for leave, but recorded counsel’s agreement that the application should be filed in this Court together with an application for extension of time. The Judge recorded his understanding the police would not oppose an extension of time for filing.
[7] An application for leave to appeal was filed in this Court on 8 September 2023. Mr Paine seeks an extension of time for the filing of that application. Mr Smith on behalf of the police, does not oppose the extension.
[8] Whether or not time should be extended engages an inquiry as to what the interests of justice require. I must have regard to the reasons advanced for the delay,
the extent of the delay and the merits of the proposed appeal. Notwithstanding the views I will shortly express as regards the merits of appeal, I am satisfied the delay has been sufficiently explained and I grant an extension of time.
District Court decision
[9] In a thorough and considered decision, Judge Spear recognised the distinct considerations that applied to the appeal brought by Mr Derrett and the appeals brought by Nathan and Alexandria. In relation to the latter, the revocation reflected police concerns Mr Derrett may have access to firearms in the possession of Nathan and/or Alexandria.
[10] In relation to Mr Derrett, the Judge identified the critical issue as whether Mr Derrett is a fit and proper person to be in possession of a firearm. The Judge acknowledged, by reference to authority, that an appeal against the revocation of a firearms licence is considered de novo, requiring the Court to consider the central issue afresh and reach its own decision as to whether Mr Derrett was a fit and proper person in terms of s 27 of the Act.
[11] The Judge then referred to case law addressing the meaning of “fit and proper person”. The Judge referred to the various grounds relied upon by police to revoke Mr Derrett’s firearms licence and referred in some detail to the evidence given describing Mr Derrett’s response when, on 22 April 2019, several police officers attended Mr Derrett’s home to serve the firearms revocation notice on all three appellants and to seize the weapons held at that address. Evidence in relation to that incident was given by attending police officers and by Mr Derrett and Alexandria.
[12] The Judge set out in full a timeline prepared by Inspector Steel, the commissioned officer who had revoked the appellants’ firearms licences. That timeline detailed a series of events dating back to 1987 when Mr Derrett was first granted a licence through to the events of April 2019. The Judge discussed a number of the events featured within the timeline in greater detail.
[13] The Judge referred to evidence given by Mr Derrett and Alexandria contesting some of those incidents.2 He referred to evidence given by Mr Derrett’s brothers, Mr Gordon, who was president of the Otago Pistol Club and who had acted as a referee for Mr Derrett on Mr Derrett’s application for a Category B endorsement for his firearms licence and from a Mr Kilby, the “sheriff” from the Otago Pistol Club who gave evidence for Mr Derrett.
[14]Having reviewed the evidence, Judge Spear concluded:
[55] In the end, it is the impression that a number of events provide that leave me with the conclusion that the decision to revoke the licence was the correct one. The impression I am left with is that Mr Derrett is a person who is very quick to anger, that he responds impetuously to situations without gaining a sufficient understanding of the situation and that leads to him acting somewhat unpredictably and aggressively when he allows his emotions to take hold. I have no doubt that Mr Derrett is well-aware of the safety requirements around the use and storage of firearms. The concern, however, is his emotional fragility when dealing with conflict or when he considers that he has been wronged. It may have been of assistance if I had had a psychological evaluation of Mr Derrett but none was provided to me and so I have had to make this fitness assessment based on upon the evidence placed before me and my observations of Mr Derrett during the course of his evidence. I consider that there are some underlying aspects to his character that cause sufficient concern as to how he might react when in a position of conflict. There is ample evidence of his impulsiveness, his quick rise to anger, his propensity to act before gaining a balanced appreciation of a situation, and his belief that he is always in the right. To allow someone with that emotional fragility to have access to firearms raises real concerns about his fitness to do so.
[56] It is that assessment that convinces me that Mr Derrett is not someone who should be trusted with firearms. My decision is that Mr Derrett is not a fit and proper person to possess firearms and I accordingly confirm the decision that Mr Derrett’s firearms licence be revoked.
[15] Particular to Nathan and Alexandria, the Judge observed that Nathan, as at the time of the appeal, was living in Auckland and intending to travel overseas and Alexandria was still living at home. The Judge understood if the decision to revoke Nathan and Alexandria’s firearms licences was overturned, their firearms would be stored at the family home. Judge Spear relevantly found:
[57] …I certainly consider that Inspector Steel’s assessment is accurate that Mr Derrett is a person with a forceful personality and someone of
2 Nathan had filed affidavits in support of the District Court appeal but did not appear at the hearing and his evidence was not referenced in the District Court decision.
significant influence over both Nathan and Alexandria. As I consider that Mr Derrett is not a fit and proper person to possess firearms, that raises the concern that if firearms are stored in his home, there is more than a risk, in reality a probability, that he would have quite easy access to any firearm stored at the home either by Nathan or Alexandria. That is not a risk that needs to be taken and should not be taken.
[16]The Judge added:
[58] For these reasons, I also confirm the decision to revoke both Nathan’s and Alexandria’s firearms’ licences. However, that is not to say that either Nathan or Alexandria are not fit and proper people to possess firearms. Nor, that they would willingly allow their father to have access to their firearms when he is without a firearm’s licence. There is also no evidence that would otherwise disqualify them from holding a firearm’s licence. However, given the current domestic arrangements and that the firearms were stored at the family home occupied by Mr Derrett, the prudent course taken by Inspector Steel was clearly to revoke their firearms’ licences.
[59] However, if either Nathan or Alexandria are able to demonstrate that they would securely store their firearms away from the Derrett family home and thus away from their father, it is difficult to see how a new application for a firearms licence would not be successful. However, that would be a decision for the police.
Submissions and discussion
[17] I will deal with Mr Derrett’s application for leave before turning to the application of Nathan and Alexandria. Mr Derrett’s application advances three primary arguments, said to be questions of law. I will deal with each briefly and, as I do so, will address the further submissions advanced by Mr Paine, albeit not necessarily arising from the three specified questions.
[18]Mr Paine advances as the first question of law;
Does the onus of proof ever shift from the respondent to the appellant?
[19] This question is misconceived. Judge Spear did not apply a legal onus on either party. Rather he considered the hearing “de novo” considering the relevant issues “afresh”. The Judge, quite properly in my view, undertook an analysis that enabled the Court to “reach its own decision as to whether the appellant is a fit and proper
person to be in possession of a firearm...”3 I am not satisfied this is a question that could arise on appeal.
Was it improper and in breach of the New Zealand Bill of Rights Act for the Judge to refer to incidents allegedly occurring after the police decision to revoke?
[20] This second question, alleging error by the Judge in taking into account factual matters that were alleged to have arisen following the original decision of the police to revoke Mr Derrett’s firearms licence, does engage a question of law. However, as outlined above, the Judge undertook a de novo assessment of the merits of the case and, in doing so, was plainly entitled to take into account any matters offered in evidence.
[21] Mr Paine was unable to point to any authority in support of this proposed ground of appeal. He did not articulate how the approach of the Judge might have breached the New Zealand Bill of Rights Act. In a de novo hearing, the court is entitled to take into account all matters presented in evidence. I do not consider this question of law to have any prospect of success on appeal.
Did the Court give undue weight to matters which on their own, did not constitute, on the balance of probabilities, matters which should be taken into account?
[22] This question is far too broad to merit consideration on an appeal constrained to a question of law. In Mr Paine’s written submissions, he advanced particulars of the alleged error, expanding this ground to include matters the Judge is said to have failed to take into account. He submits the Judge failed to take into account the number of years Mr Derrett was a compliant firearms licence holder. That submission overlooks that the Judge traversed in some detail the events relevant to Mr Derrett’s firearms licence dating back to 1987.4 The Judge made specific reference to evidence from members of the Otago Pistol Club describing Mr Derrett’s attitude to firearms safety as “exemplary” and having never witnessed him misusing or acting carelessly with firearms.
3 Derrett v New Zealand Police, above n 1, at [13].
4 At [26] – [54]
[23] There is no prospect of a successful argument on appeal that the Judge failed to take into account relevant matters pertaining to Mr Derrett’s history as a firearms licence holder, both positive and negative. The issue raised turns on the weight the Judge gave to the evidence he heard. The weight the Judge gave to the evidence offered on the appeal does not engage a question of law.
[24] Mr Paine submits the Judge gave either undue weight to, or should not have had regard to, the events that unfolded when the police served the revocation notice on Mr Derrett. Judge Spear relevantly found:
[21] Both Sergeant West and Constable Atkinson gave evidence that Mr Derrett remained "extremely agitated" throughout the time the police were at his home, voicing his dislike for the police, making allegations of police corruption and dishonesty and also stating "I fucking hate Muslims". This was a comment that was seized on particularly by the police given that this was just after a month following the atrocities in Christchurch, which had become known as "The Mosque Shootings". Sergeant West went further and said that Mr Derrett also indicated verbally that he was able to understand why the shooting took place. Furthermore, he expressed his dislike for Prime Minister Ardern, stating that he believed that she was a "closet Muslim" and that, notwithstanding that his firearms’ licence had been revoked, he would still continue shooting.
[22] This was generally denied by Mr Derrett, who, in particular, stated that it was quite untrue that he made any comment about intending to continue to shoot notwithstanding the revocation of his licence, that he disliked Muslims or that he had any adverse views of the police or the Prime Minister. Mr Derrett stated that he made no such statements and did not react such as Sergeant West had stated.
[23] I had the benefit of hearing the evidence from those concerned who were in the vicinity at the time that these comments by Mr Derrett are alleged to have been made. The view I have formed is that some words of the nature described by Sergeant West were made and to the extent that it caused both Constable Atkinson and Sergeant West concern. However, I accept that they were more the outpouring of emotions of an extremely agitated and angry man, being Mr Derrett. I do not consider that Mr Derrett meant anything of the type that is alleged to have been made; it was more an example of his hot-headedness, his inability to read a situation and to deal with it in a mature, level-headed way. Indeed, it is that characteristic of Mr Derrett's that is central to the police case that he is not a fit and proper person to possess firearms.
[25] I accept what transpired when the police served the revocation notice on Mr Derrett was disputed in evidence given in the District Court. However, that Mr Derrett does not agree with the Judge’s findings does not engage a question of law. Mr Derrett’s conduct when served with the revocation notice was relevant in assessing
his fit and proper person status. The weight to be attached to that evidence was a matter for the Judge. Mr Paine submits Mr Derrett’s response when confronted by the police was understandable and should not have led the Judge to make adverse findings as to his fit and proper person status. That submission does not engage a question of law. It engages a purely factual inquiry and is not a ground that has any prospect of success on appeal.
Mr Derrett - conclusion
[26] The issues raised by Mr Paine do not engage questions of law that are arguable or that would otherwise arise on appeal. Rather, the essence of the proposed appeal is a challenge to factual findings made by the Judge and an invitation to this Court to undertake a rehearing. That is outside the bounds of a s 296 appeal.
[27]I turn to deal with the applications for leave brought by Nathan and Alexandria.
Nathan and Alexandria
[28] The application for leave raises a single proposed question of law alleging unlawful discrimination on the grounds Nathan and Alexandria were members of the same household as Mr Derrett.
[29] I do not consider this ground to be arguable. The decision to revoke a firearms licence did not engage any issue of discrimination or breach of human rights. The appellants did not have a right to a firearms licence.
[30] Section 24(2)(b) of the Act provides a firearms licence must not be issued if, in the opinion of a commissioned officer of the police, access to any firearm or airgun in possession of the applicant is reasonably likely to be obtained by any person who has had their firearms licence revoked on the ground that they are not a fit and proper person.
[31] Mr Paine submits that to revoke a firearms licence due to the actions of a third party is a breach of human rights. That submission fails to engage with s 27 of the Act. Having found Mr Derrett was not a fit and proper person, the revocation of the
licences of Nathan and Alexandria was the legal consequence of a factual finding as to the likelihood of Mr Derrett’s having access to firearms in the possession of Nathan and Alexandria. No arguable question of law as to discrimination arises.
[32] Mr Paine’s written submissions strayed from the question of law articulated in the application for leave to appeal. I will nevertheless deal with the expanded or alternative propositions.
[33] First, he submitted there was no evidence to support the finding Mr Derrett was reasonably likely to have access to firearms in the possession of Nathan and Alexandria. That submission does not engage a question of law. Rather, Mr Paine challenges the factual findings made by the Judge. I am quite satisfied the Judge was entitled to find Mr Derrett’s forceful personality, coupled with his relationship with Nathan and Alexandria and the storage of their firearms within the family home, supported the finding it was reasonably likely Mr Derrett would access firearms in their possession.
[34] Secondly, Mr Paine referred to the Judge’s observation that if Nathan or Alexandria were able to demonstrate they would securely store their firearms away from the Derrett family home and therefore away from their father, a fresh application for a firearms licence would likely be successful. Mr Paine submits this comment “shift[s] the onus of proof” to Nathan and Alexandria to prove they had made alternate firearms storage arrangements. He submits the Judge was wrong to suggest Nathan and Alexandria would have to reapply for their licences, rather he submits that as a matter of law their licences should be reinstated.
[35] Again, I do not consider these propositions to be arguable. The observation made by the Judge offering a potential remedy to Nathan and Alexandria was obiter. The Judge had already determined that Nathan and Alexandria’s licences were revoked. The Judge did not impose an onus of proof on Nathan and Alexandria. The Judge was simply advancing a practical measure that might open the door to Nathan and Alexandria to successfully apply for new firearms’ licences. The suggestion highlighted the Judge had not found they were not fit and proper persons to hold firearms’ licences.
[36] As for Mr Paine’s final argument, the Arms Act does not provide for the reinstatement of a revoked licence. If a firearms licence has been lawfully revoked, the former licensee’s remedy lies in a fresh application for a firearms licence. Mr Paine’s submission that Nathan and Alexandria “have a firearms licence now” ignores the fact their licences have been revoked. His submission that the police bear the onus of proving why Nathan and Alexandria are not fit and proper persons reflects a failure to engage with the statutory grounds upon which Nathan and Alexandria’s licences were revoked. The Judge did not find they were not fit and proper persons to hold a firearms licence.
Nathan and Alexandria – conclusion
[37] I am not persuaded that the proposed questions of law have any prospect or success or otherwise arise on appeal.
Result
[38] The application for leave is filed out of time, but, in the circumstances, I extend time. However, I am not satisfied the proposed appeals raise any arguable questions of law. The applications for leave are declined.
Costs
[39] The respondent is entitled to costs. If agreement cannot be reached, the respondent is to file a costs memorandum within 10 working days and the appellant within five working days thereafter. Memoranda are to be no longer than three pages.
[40] I understand the parties have filed submissions addressing the issue of costs in the District Court but that no decision was made pending this application for leave to appeal. That is an issue that should now be determined by Judge Spear.
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Eaton J
Solicitors:
McMillan & Co, Dunedin for the Appellants. RPB Law, Dunedin for the Respondent.
Counsel:
G A Paine, Barrister, Dunedin
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