Lincoln v Attorney-General
[2020] NZHC 1252
•8 June 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-76
[2020] NZHC 1252
UNDER the New Zealand Bill of Rights Act 1990 IN THE MATTER
of a claim in tort and breach of s 27 of the New Zealand Bill of Rights Act 1990
BETWEEN
RICHARD LINCOLN
Plaintiff
AND
ATTORNEY-GENERAL
Defendant
Hearing: 10-13 and 20 February 2020 Counsel:
Plaintiff in person
K South and C White for Defendant
Judgment:
8 June 2020
JUDGMENT OF CHURCHMAN J
(redacted version)
TABLE OF CONTENTS
What this case is about [1]
The plaintiff [7]
Mr Lincoln’s claims and their evolving nature [47]
The evidence for the plaintiff [49]
The defendant’s evidence [86]
J F Ritchie [87]
J A Earl [91]
J A Manning [95]
M W T Savage [111]
N Lewis [126]
Lincoln v Attorney-General (redacted version) [2020] NZHC 1252 [8 June 2020]
H N O’Reilly [132]
G P Sutherland [138]
S Banfield [150]
R J Scott [166]
Factual findings [173]
Availability of a gun bag [174]
Purpose [179]
Mr Lincoln’s behaviour at arrest [189]
At the Police station [213]
It’s our turn now [214]
Waving firearm around [221]
Licence revoked [225]
Information to mental health nurses [226]
Behaviour at Police station [234]
IPCA [244]
Causes of action [251]
False imprisonment and assault [251]
False imprisonment [286]
Malicious prosecution [300]
Trespass [347]
17 September 2015 – Sergeant Sutherland [347]
28 November 2015 [388]
Conclusion [397]
What this case is about
[1] On the morning of 17 September 2015, Richard Lincoln, then a 54-year-old part-time law student, set out in his small SUV vehicle to drive from his home in Timaru to Christchurch. This was a journey he had made many times without incident.
[2] Before departing Timaru, he stopped at a service station to put fuel in his vehicle and he also stopped in Ashburton to use the public toilets located on the main street.
[3] Mr Lincoln did not make it to Christchurch that day. At approximately 10 am, he was apprehended by armed Police officers at Dunsandel and arrested. The reason for this dramatic development was that on 17 September, Mr Lincoln had taken with him his Heckler & Koch model SL8 military-style semi-automatic (MSSA) rifle.
[4] As a result of the passing of the Arms (Prohibited Firearms, Magazines and Parts) Amendment Act 2019 following the Christchurch mosque shootings, civilian ownership of MSSAs is now prohibited. That is because MSSAs have the capability of firing a lot of ammunition in a short space of time and have often been the weapon of choice of those who have conducted mass shootings, including the Christchurch mosque shooting.
[5] However, in 2015, civilians were permitted to possess them although they were required to have a special “E” class endorsement of their firearms licence. Mr Lincoln held such a licence.
[6] Mr Lincoln says that he was transporting the SL8 to Christchurch to get some work done on it. He was not transporting it in a locked case or even in a gun bag. It was simply sitting upright in the footwell of the front passenger seat in his vehicle. At both Timaru and Ashburton, he had taken it out of his vehicle, slung it over his shoulder and carried it into the service station and the public toilets. This had resulted in complaints to the Police both in Timaru and Ashburton. The Police’s response to those complaints led to Mr Lincoln’s arrest. These proceedings arise from that arrest and subsequent related events.
The plaintiff
[7] Mr Lincoln is a long-time gun enthusiast. He is someone who has actively advocated for the rights of gun owners and who has challenged policies and practices adopted by the Police in relation to the regulation of firearms.
[8] In the case of Lincoln v Police,1 he achieved some success in challenging the Police’s interpretation of the words “military pattern free-standing pistol grip” as those words applied to his SL8 MSSA. Although Mallon J found that the proceedings were not appropriate for judicial review as they did not involve the exercise of a statutory power of decision, she treated them as if they were an application for a declaration under the Declaratory Judgments Act 1908 and issued a declaration confirming that Mr Lincoln’s SL8 rifle did not have a military pattern free-standing pistol grip as that
1 Lincoln v Police HC Palmerston North CIV-2009-454-473 1 March 2010, Mallon J.
term was referred to in the Arms Act 1983, and the term “military pattern free-standing pistol grip” did not mean what had been set out in a Police communication dated 2 July 2009.
[9] Mr Lincoln was again the plaintiff in proceedings against the Commissioner of Police in 2013 seeking a number of declarations relating to issues concerning procuring, importing, possessing and using military-style semi-automatic firearms. Mr Lincoln had more limited success in these proceedings but did obtain a declaration that a permit to procure under s 35 of the Arms Act was not required where a person modifies an existing semi-automatic firearm to create a military-style semi-automatic firearm.2
[10] In addition to taking action against the Police as a litigant in person, Mr Lincoln was also actively engaged in lobbying on behalf of gun owners. In order to facilitate this, he formed a group called the National Shooters Association (NSA).
He formed this group in 2010.3
[11] The NSA was modelled, in part, upon the National Rifle Association of the United States “to be aggressive and uncompromising in its advocacy of firearms issues”.4
[12] A significant quantity of documentation in relation to the NSA and its policies and activities was placed before the Court. Mr Lincoln was also cross-examined about them.
[13] Mr Lincoln was evasive about the activity of the NSA and the extent of his involvement in it. He accepted that the NSA could be described as a militant, pro-gun lobby. When asked how many members it had as its height, he initially said he did not know. When pressed as to why he did not know, he said, “Because when the
2 Lincoln v Commissioner of Police [2013] NZHC 1813.
3 This date is taken from the submission by the National Shooters’ Association to the Law and Order Select Committee dated May 2011 but the judgment of the Court of Appeal in Lincoln v New Zealand Law Society [2019] NZCA 442 at [11] refers to the NSA having been founded in 2009. In these proceedings Mr Lincoln also referred to the 2009 date. Nothing turns on the date.
4 See Lincoln v New Zealand Law Society above n 3, at [11].
membership got to about 200 and something I disassociated myself with the membership.”
[14] He admitted that NSA was never an incorporated or registered not for profit organisation. He claimed that members paid subscriptions and acknowledged that the only bank account NSA ever had was his personal bank account and that on NSA’s Facebook page his name and cellphone number appeared as its contact.
[15] When he was asked who the past presidents of the NSA were, he said “there’s been no past president”. He was unwilling to accept that he had been president saying, when that was put to him, “Well I’m not sure if you’d describe me as a president but it was, I was a head of the organisation at one stage, yes.”
[16] He denied that he was only person who had the “administrator log-in details” to the NSA’s Facebook page but when asked who the others were, he said he did not know. NSA had a website as well as a Facebook page and Mr Lincoln conceded that he and one other person administered the website.
[17] The issue of who controlled the NSA and in particular who was responsible for the posts on its Facebook page is important for these proceedings. That is because of the nature of the material posted on the Facebook, some of which was directly relevant to issues raised in these proceedings.
[18] Mr Lincoln sought to downplay his role in the NSA and disavowed any involvement in the posts or other material that did not expressly have his name attached to it. While being cross-examined about this material, he asserted that some of the posts had been doctored, implying that the Police had done this. At no stage previously had Mr Lincoln ever claimed that posts on the website had been doctored. There is a reason that Mr Lincoln would not have wanted to be associated with some of the material, particularly the Facebook posts. They indicated extreme and irrational views, expression of a deep-seated animosity towards the Police, particularly (but not limited to) those members of the Police involved in arms control, a willingness to accuse a number of named Police officers of serious criminal activity, and a fixation
with extracting retribution from members of the Police, principally Senior Constable Manning, that was obsessive and seriously lacking in judgment.
[19] Some of the answers given by Mr Lincoln about the extent and nature of his involvement in the NSA and its activities were difficult to reconcile with some of the objective evidence placed before the Court. For example, his claim that he was not the president and that he was not the driving force behind the NSA throughout its existence were contradicted by comments of Panckhurst J who in the 2013 decision said of Mr Lincoln, “He is also the President of the National Shooters Association of New Zealand”.5 Panckhurst J would not have made that explicit finding unless that was the evidence then placed before the Court.
[20] In May 2011, Mr Lincoln, on behalf of the NSA, made a lengthy written submission to the Law and Order Select Committee. His residential address was provided as the address at which to contact the NSA, as was his cellphone and name. That document grossly misrepresented the size of the NSA. Relevant extracts said:
We access a membership of approximately 229,977 firearms licence holders. Those members are all of (or very near to) voting age, they all value highly their liberty to participate in their sport with firearms and are highly motivated to vote in general election.
On behalf of the 229,799 [sic] licenced civilian gun owners represented by National Shooters Association, we oppose the Bill in its current form …
[21] It is impossible to reconcile these claims with Mr Lincoln’s acknowledgement that, in these proceedings that the NSA’s membership was in the order of 200. I draw the conclusion that Mr Lincoln was prepared to deliberately misrepresent NSA’s size in order to create the impression that the voting power of its members was infinitely greater than it actually was. Mr Lincoln’s propensity for misrepresentation is relevant to issues of credibility that are important in resolving this case.
[22] I am also satisfied that Mr Lincoln was the founder of NSA and its prime mover. His personal contact details, including his residential address, cellphone and personal bank account number were used for the NSA. He acknowledged having funded the NSA. After issuing these proceedings, Mr Lincoln also posted on the
5 Lincoln v Commissioner of Police, above n 2, at [2].
New Zealand Hunting and Shooting forums, describing himself as “National Shooters Association executive member” saying:
Unfortunately I have had to turn my financial resources towards defending myself and for the time being will be unable to provide the level of funding to National Shooters Association that I have in the past. I therefore encourage my fellow civilian gun owners to support National Shooters Association with donations so that the organisation can carry on with its work supporting our sporting community and protecting us from Police anti-gun extremism.
[23] The date of that post appears to be 8 February 2017, and I conclude that at least up until that point in time, the NSA effectively remained Mr Lincoln’s alter ego. In the absence of any evidence to show that it was funded by anyone other than him, I also conclude that he remained its principal funder.
[24] As to the Facebook posts, I note that Mr Lincoln has a considerable background in IT having run his own IT business in Palmerston North for about 10 years. He is also described in other judgments as an IT engineer. He therefore would have possessed the IT skills to create the various images on the Facebook page including those that were most offensive. The content on the Facebook page which Mr Lincoln denied placing expressed many of the extreme and unbalanced views that were represented in the material that Mr Lincoln had put his name to.
[25] Much of the material was vitriolically anti-Police, and there was no restraint in the level of abuse directed at individual Police officers, including posting their photographs often accompanied by serious unfounded allegations. An example is the post on the NSA Facebook of 10 December 2017 which had a photograph of the Secretary of the Police Association which had been altered so as to show him dressed in a Nazi military uniform. Over that photograph was imprinted the words “My name is Chris Cahill. I am head delegate in the NZ Police Union. I am A LIAR AND SHOULD NOT BE TRUSTED.” Another posting contained a photograph of Sergeant Sutherland, one of the witnesses in these proceedings and someone Mr Lincoln had attempted to commence a private prosecution against with the words “Greg Sutherland – Bent Cop” displayed on it.
[26] Mr Lincoln holds and has, for nearly 30 years expressed, extreme and unbalanced views about those individual Police officers and the Police generally. The
flavour of those views is accurately captured by a press release he issued on behalf of the NSA on Tuesday 7 February 2017. In that press release, Mr Lincoln sought to publicise these proceedings and described his claim in detail, even including a link and inviting readers to download or read the statement of claim. Immediately after that invitation, the press release said:
My message to civilian gun owners is to be very careful. Police are treacherous and deceitful. Police were recently heavily criticised in the Supreme Court for their deceiving a member of the Judiciary. Most of us would like to think that police adjusted their attitude following the bad press and damage they did to their relationship with civilian gun owners in 2009 over the pistol grip fiasco. They have not. Police are just as dishonest, just as deceitful and just as vindictive as they were before.
[27] Mr Lincoln also has strong views about the carrying of firearms in public places. During the course of the hearing, he expressed the view that it was a good thing for firearms owners to openly carry their firearms in public places and he thought that there was a benefit in members of the public becoming accustomed to seeing firearms openly carried.
[28] Mr Lincoln’s personal views in this regard echo a campaign that was undertaken by the NSA in August 2016. A Facebook post on NSA’s website encouraged gun owners to carry gun bags in public. The Facebook post gave the rationale for this as being:
In order to restore public confidence in civilian gun owners and desensitise the general public from the irrational fear instilled by police propaganda, National Shooters’ Association is promoting the “Calm Carry Campaign”.
We encourage all civilian gun owners to carry an (empty) gun bag whenever going about their lawful business in public places. The more people participate in this campaign, the more familiar the public will become with seeing potential firearms in public places.
[29] Mr Lincoln demonstrates no insight into the apprehension that members of the public might experience being confronted by gun owners carrying firearms in a public place. During the course of the hearing, he seemed unwilling to accept that members of the public might legitimately be upset or scared in seeing a military-style semi- automatic weapon being carried in a public place. He also seemed to be of the view that, if they were upset, that was their problem not his.
[30] Again, this view is consistent with that promoted on the NSA website during the Calm Carry Campaign. A website post on 2 August 2016, after decrying Police using what was said to be “emotive hysterical phrases” such as “military-style assault weapons” said:
The consequences are that the public fear us and our firearms. Unfathomable
– but yes it’s true, there are some people in New Zealand who really believe that one or more of the 255,000 of us are going to use one of our three million firearms to slaughter them, their families, their neighbours and their pet cat. Visualise Professor Richard Dawkins shaking his head and doing a face-palm.
[31] These comments were made approximately 18 months before the Christchurch mosque massacres where a licensed gun owner used several MSSAs to slaughter over 50 people. They are indicative of the extreme and unrealistic views held by the plaintiff.
[32] As well as promoting provocative views in relation to matters such as the open carrying of firearms in public, at times, Mr Lincoln advocated disobedience of gun laws. One of the items of evidence before the Court was a Facebook exchange between Mr Lincoln and someone who had suggested that the NSA made themselves look like crazy extremists for advising people to bury illegal firearms. Mr Lincoln’s response to that person was to post an entry which read:
The law in New Zealand makes it illegal sometimes for a person to be in possession of a gun. The law may change soon and thereby create more circumstances which criminalise a civilian gun owner for possession of gun (sic) that is their property. Under these circumstances the person is obliged to dispossess themselves of their gun. They may wish to store their gun for some future time when the law is relaxed and a new government brings about gun control laws that are rational and decriminalise the possession of such a firearm. The current owner may therefore wish to dispossess himself or herself of their gun by burying in a safe place for the day that the repeal of the offensive law occurs. For that purpose we advise gun owners in that position to use cosmoline and bury their gun in order to obey the law and dispossess themselves of it, until the law is repealed. Incidentally, this is exactly what has occurred in Australia and now, as the draconian restrictions over there are relaxed, more and more stored guns are able to be reclaimed by displaced owners.
[33] As well as having fixed views about the integrity of the Police, a willingness to either make or sanction6 the posting of abusive and extreme material on the NSA website and little apparent acceptance or understanding of the views of others that differed from his own, Mr Lincoln has what the Court of Appeal described in the decision of Lincoln v New Zealand Law Society:7
… a longstanding and enduring defect in his character that causes him to react in an aggressive, threatening and wholly unbalanced way against those whom he perceives have wrongly challenged him.
…
This defect in his character was very evident as long ago as 1993, when Mr Lincoln became embroiled in a dispute with his former partner, and then with police officers who revoked his firearms licence because of well-founded concerns about his violence and aggressive behaviour.
[34]The Court of Appeal went on to say:8
Unfortunately, these defects in Mr Lincoln’s character have not diminished with the passage of time. His relentless pursuit of Senior Constable Manning and Mrs Manning was very disturbing and closely mirrored the conduct that resulted in the District Court being very critical of Mr Lincoln in its 1994 judgment.
[35] The Senior Constable Manning then referred to by the Court of Appeal was the Police officer who arrested Mr Lincoln on 17 September 2015. The “relentless pursuit” that the Court of Appeal was referring to was actions that Mr Lincoln took against Senior Constable Manning and Mrs Manning following the criminal proceedings taken against Mr Lincoln after his apprehension on 17 September. The particular actions concerned are detailed in a High Court decision of Dunningham J. It says:9
In late 2017, following the dismissal of the charges against him, Mr Lincoln served proceedings on Senior Constable Manning at his home. Mr Lincoln arrived wearing what Senior Constable Manning understood was a black stab vest, although Mr Lincoln explained it was vest with a built-in camera.
6 Although Mr Lincoln denied that he was the author of some of the posts, I am satisfied that he exerted control over the website to the extent that no other person could have posted on the website without his sanction. I am also satisfied that all of the posts are consistent with the views held by Mr Lincoln about those who were mocked or abused in the posts.
7 Lincoln v New Zealand Law Society, above n 3, at [36].
8 At [37]. Mr Lincoln applied to the Supreme Court for leave to appeal the Court of Appeal decision, but this was dismissed: Lincoln v New Zealand Law Society [2020] NZSC 4.
9 Lincoln v New Zealand Law Society [2018] NZHC 3050 at [18].
Service of the documents was also filmed from a video camera set-up in Mr Lincoln’s car.
[36] The judgment then went on to record that Mr Lincoln placed a post of him serving the proceedings on the NSA Facebook page. The Court of Appeal decision records the post as containing the following statements:
The criminal offender, JAMES ANDREW MANNING who works for the NZ police gets a fraction of his comeuppance.
Normally these videos remain undisclosed because they are proof of service records only. But in this case the video is made public because James Andrew Manning is a violent and dishonest criminal offender who remains at large.
Manning’s offending includes assault and battery, kidnapping, perjury, attempting to pervert the course of justice and various offences under the Criminal Procedure Act.
The public need to be aware that this offender is at large in our community and in spite of his offending, remains a serving member of police.
[37] The post went on to give details of where Senior Constable Manning lived and worked and of his Facebook page. It also gave details of his wife’s Facebook page.
[38] The High Court decision records that at about the same time of making this post, Mr Lincoln sent a message through Facebook Messenger to Senior Constable Manning’s wife which read:10
When the for sale sign goes up on your house and the receivers come in, remember that your husband is the one to blame. While you’re struggling to make ends meet for your kids, he will probably be serving time in a nice cold prison cell for assault, kidnapping and perjury.
How did you ever wind up marrying a lowlife scumbag thug?
[39] The Court of Appeal decision records that the proceedings that Mr Lincoln filmed himself serving on Senior Constable Manning and then posted on the NSA Facebook page were civil proceedings which were apparently settled. The Court then notes that two months after resolving the civil proceedings, Mr Lincoln filed seven charging documents instituting criminal proceedings by way of private prosecution against Senior Constable Manning in the District Court at Christchurch.
10 Above n 9, at [21].
[40] As required by s 26 of the Criminal Procedure Act 2011, a District Court Judge reviewed the charging documents and directed that they not be accepted for filing on the basis that Mr Lincoln was bringing the charges in an attempt to “humiliate, embarrass or otherwise extract revenge on Mr Manning”.
[41] The District Court Judge had held that the charges were “excessive and duplicitous” and demonstrated that Mr Lincoln was making “a mountain out of a molehill”. He directed that the charges not be accepted for filing.11 Mr Lincoln persisted in his efforts to institute a private prosecution against Senior Constable Manning with the District Court issuing another judgment in January 2020 directing that a further charging document not be accepted for filing because it was “substantively similar” to the ones rejected in 2018.12
[42] In proceedings which involved assessing whether or not Mr Lincoln met the good character requirement for admission as a barrister and solicitor, the High Court also drew attention to the fact that, on the face of things, Mr Lincoln had breached the Lawyers and Conveyancers Act 2006, specifically ss 22(2) and (3) of the Act. They refer to an advertisement on the NSA Facebook page where Mr Lincoln’s photograph was headed by a quote attributed to “Abraham Lincoln (Lawyer 1809-1865)” which reads: “I may walk slowly but I never walk backwards” below which Mr Lincoln offered the services of “Firearms law advocacy, Employment, civil and criminal law”. His contact details referred to “Otautahi Chambers”, where a barrister he proposed to work for was located.
[43] The High Court decision noted that, in his interview with two Law Society representatives, Mr Lincoln had denied responsibility for posting the advertisement offering services in various fields of law, saying his niece had prepared it and it was “put up prematurely”. It also records Mr Lincoln’s denial of responsibility for the other NSA Facebook posts which made derogatory comments about the Police, including the post which described the South Canterbury Police team as “incompetent” and Sergeant Sutherland of that branch as a “bent cop”.13
11 Lincoln v Manning [2018] NZDC 20025.
12 Lincoln v Manning [2020] NZDC 1139.
13 Lincoln v New Zealand Law Society, above n 9, at [57].
[44] In relation to the evidence before it of Mr Lincoln’s behaviour regarding Senior Constable Manning and Mrs Manning, the High Court concluded that the answers given by Mr Lincoln:14
… demonstrated, in my view, either an inability, or an unwillingness, to acknowledge how his actions were perceived by others.
[45] The High Court acknowledged that Mr Lincoln displayed many positive qualities including being intelligent, logical, well organised and tenacious, but ultimately concluded that Mr Lincoln had an “enduring frailty of character” which meant that he did not “always deal responsibly and dispassionately with those whom he considers have wronged him”.15
[46] I have set out in some detail these examples of where aspects of Mr Lincoln’s character have been the subject of critical comments by various Courts because of the similarity between the behaviours identified by the other Courts, such as the “aggressive, threatening and wholly unbalanced” way he has responded to those he perceives as having wrongly challenged him, with the behaviours which a number of the witnesses in this case have ascribed to Mr Lincoln and in respect of which I am required to make credibility findings.
Mr Lincoln’s claims and their evolving nature
[47] The plaintiff’s statement of claim dated 14 February 2017 went through a number of iterations. The alterations continued right up until and during the hearing with the plaintiff indicating that he was abandoning some claims, then reinstating them and then abandoning parts of other claims. His unwillingness to file a proper amended statement of claim showing exactly what claims were being pursued resulted in the unsatisfactory situation of the Court having to rely on verbal amendments made during the hearing.
[48] Ultimately the following causes of action were neither amended nor abandoned and proceeded to trial:
14 Above n 9, at [66].
15 Above n 9, at [73].
(a)false imprisonment on 17 September 2015 by Senior Constable Manning (encompassing a claim of false imprisonment at the Ashburton Police Station on the afternoon of 17 September 2015 and being dropped back to his car afterwards);
(b)assault and battery by Senior Constable Manning;
(c)breach of s 23 of the New Zealand Bill of Rights Act 1990 (NZBORA) essentially alleging unlawful arrest by Senior Constable Manning on 17 September 2015 with allegations also being made against Constable H N O’Reilly;
(d)trespass by Sergeant G P Sutherland in relation to the plaintiff’s Timaru address on 17 September 2015;
(e)trespass by Police in October 2015 at his house in Timaru; and
(f)malicious prosecution for the events arising out of the incident on 17 September 2015.
The evidence for the plaintiff
[49] The plaintiff called himself as his sole witness. His evidence-in-chief was based on an affidavit he had sworn on 30 April 2019. His evidence was that on the morning of 17 September 2015, he had to travel to Christchurch to attend a tutorial at the Canterbury University. Earlier, he had arranged to deliver one of his firearms (the H&K SL8 MSSA which had a large capacity magazine attached to it) to a gunsmith in Christchurch for work to be done on it. He said in order to discharge the legal obligation to keep the firearm in his immediate possession, he did so by placing it next to him in the passenger side footwell of his car, or when he left the car, carrying it slung under his arm.
[50] Mr Lincoln said that he stopped to get fuel on his way out of Timaru and took the H&K SL8 with him when he went into the service station office to pay.
[51]As to how he carried the firearm, his evidence was:
I made sure when I walked into the service station that I had my wallet in my right hand and my fuel card in my left hand and the firearm concealed as best I could under my right arm and then I approached the counter.
[52] He denied swinging the firearm around to his front with the barrel pointing down and said instead that when the service station attendant asked him why he did not have the firearm in a bag, he said that he had not been able to get one because the firearm was too big for a bag and then “… turned it very slightly around like that so that she could see the depth of the firearm on its side and that was it.”
[53] Mr Lincoln acknowledged stopping on the main street of Ashburton in that part of town where the main shopping precinct was located. He acknowledged taking the firearm out of the car and with him when he went to the toilet. He denied, in cross- examination, the assertion that he wanted to be seen carrying the firearm in public and that is why he chose the toilet on the main street of Ashburton rather than any other more discreet location. He did not accept the proposition that, given the fatal WINZ shooting in Ashburton by Russell John Tully just a year earlier, that being on the main street of Ashburton at 10.30 am, carrying an MSSA fitted with a magazine, might have caused alarm in the community.
[54] Mr Lincoln also rejected the suggestion put to him that his purpose in carrying the firearm publicly in Timaru and Ashburton was to attract attention and to provide the basis upon which he could engage in litigation with the Police over firearms law.
[55] In relation to his interaction with the Police on the morning of 17 September 2015, Mr Lincoln’s evidence was when he was driving north on State Highway 1, a few kilometres north of Dunsandel, he noticed a Police car do a U-turn and follow him. He said he stopped his vehicle when the Police car displayed flashing lights. He said that Senior Constable Manning, who had been driving the vehicle, did not immediately approach his stationary vehicle but stood behind the open driver’s side door of the Police car. He said he could see Senior Constable Manning was wearing a pistol and he described his right hand as “hovering above the pistol”. He described Senior Constable Manning “screaming” commands at him to put his hands above his head, walking to the rear of his car and then onto the left of the roadside. He said he
got down on his knees when Senior Constable Manning told him to, and that Senior Constable Manning searched his upper body and pockets.
[56] He agreed that Senior Constable Manning allowed him to get up and turn around and face him when he asked to be permitted to do that. He said that Senior Constable Manning was talking on his radio at this point. He said traffic was heavy in both directions and it was very noisy. He refers to other Police officers searching his vehicle and removing the MSSA. He says that he answered Senior Constable Manning’s questions about why he was carrying the MSSA in a public place “in a coherent, calm and measured manner”. He acknowledges explaining to Senior Constable Manning what he believed to be his legal duties, including reference to Arms Regulation 1992, regs 19 and 28.
[57] He claims that when he informed Senior Constable Manning that his legal advice concerning domestic arms control law was wrong, Senior Constable Manning lost his temper and “suddenly and without warning rushed at (him) and struck (him) with an open palm’s strike on (his) left shoulder”. He claims that he yelled out “that’s assault” in the direction of the other Police officer who had removed the MSSA from his vehicle.
[58] He says Senior Constable Manning then arrested and handcuffed him and, when he asked what charge he was being arrested on, told him that it was “obstruction” but gave no further answer when he asked Senior Constable Manning what the “factual grounds” were for arresting him. He recalled Senior Constable Manning having a discussion with the other Police officer who had removed the firearm from the car and then being “frogmarched” some six or seven metres south along State Highway 1 to the Police patrol car and placed inside it.
[59] He said that the “assault” by Senior Constable Manning caused him a sore back and shoulder and some minor bruising. He said that while assaulting him, Senior Constable Manning was “carrying and threatening me with a handgun”.
[60] Mr Lincoln’s evidence was that after having been taken to the Ashburton Police Station he asked other officers for the reasons that he had been arrested for obstruction
but was not given particulars. Mr Lincoln identified Constable O’Reilly, Sergeant Richard Scott and Senior Sergeant Scott Banfield as being present at the Ashburton Police Station when he was there.
[61] He said that Sergeant Scott asked him if there was a dead body in his house at Timaru and described Sergeant Scott as “being irrational”.
[62] He claimed that Senior Sergeant Banfield mentioned the civil proceedings he had taken against the Police in 2009 and said to him “it’s our turn now”. He acknowledged telling Senior Sergeant Banfield that he intended taking the Police to Court and that the Police would be facing a High Court proceeding for what they had done to him that day.
[63] Mr Lincoln said he gave an interview to Constable O’Reilly that was recorded by video and that in the interview he mentioned that Senior Constable Manning had assaulted him. He acknowledged that Sergeant Scott had told him that he suspected he was mentally unstable. He claimed that when Sergeant Scott told him that someone was coming to check his wellbeing, Sergeant Scott said, “They’ll write a report saying anything I want”. Mr Lincoln acknowledged being interviewed by two female employees of the Canterbury District Health Board (CDHB). Mr Lincoln produced, in his bundle of documents, a copy of the “Psychiatric Assessment Summary” prepared by the two CDHB employees as a result of their assessment of him of 17 September 2015. The document is dated 21 September 2015.
[64] Three passages in this document are relevant to these proceedings. Under the heading “Presenting History”, it said:
Richard is a 54 yr old man who is currently a law student in his 4th year at Canterbury University. He travels between Timaru and Christchurch for lectures. He owns several firearms with licenses and has recently applied to have some of his firearms upgraded to military standard. Richard is very well versed on his rights and responsibilities of being a gun owner. He kept quoting several parts of the firearms act.
[65]Under the heading “Temperament & Personality”, it said:
Presented as intelligent however some major narcissistic traits and appeared in sightless (sic) into the social implications of his actions. Richard also
appeared to display extreme grandiosity and would prefer to talk around the questions asked rather than give straight answers. At one point during the assessment Richard appeared to take over and preferred to question us. At this point the assessment was stopped. Richard believed that he was more superior than either ourselves or the police and again would talk about his actions today being in line with the laws in New Zealand around firearms.
At one point Richard stated that the laws in the country need amending. We questioned Richard if today (sic) events were a stunt to get the attention of the public go about law change. Richard denies this was the case.
[66]Under the heading “Risk Assessment”, it said:
Richard denied any thoughts or intent around self-harm against himself or to others. However due to his presentation he appeared to lack the ability to understand how other people could be affected by his behaviour. Risk therefore would be considered variable.
[67] The report concluded with the comment that the authors informed Mr Lincoln that a copy of their report would be sent to his GP “due to risk concerns”. It noted that Mr Lincoln became annoyed at this point, did not agree to a copy being forwarded to his GP and asked that the assessment document record the fact that he did not agree to a copy going to his GP.
[68] In his affidavit, Mr Lincoln asserted that he was not afflicted with a mental health issue on 15 September 2017 and that there was no credible evidence that he was mentally unstable on that day. Mr Lincoln asserted that the Police had lied to mental health services in order “… to acquire a fabricated report to justify the unlawful search on (his) house. By doing so the Police acted with malice and in bad faith towards (him).”
[69] Mr Lincoln confirmed signing a Police bail form and said that Sergeant Scott told him that if did not comply with the conditions of the Police bail form, the Police would “gas axe” open his gun safe. He then said he agreed to open the gun safe. Mr Lincoln’s affidavit then refers to him being “imprisoned” in another Police car and taken back to Dunsandel where his car was.
[70] Mr Lincoln’s evidence was that when he returned to his home in Timaru on 17 September 2015, Sergeant Manson and Constable Wightman were waiting for him and were armed. He says that they searched his home unlawfully. He says that he
later discovered that other members of the Police (Sergeant Sutherland) had trespassed on his property twice.
[71] He says that on the evening of 17 September 2015 he went to the Timaru Police Station and served a trespass notice on Sergeant Manson and that the notice ordered all members of the New Zealand Police to leave and stay off his address in Timaru.
[72] Mr Lincoln’s evidence was that on 28 October 2015, Sergeant Sutherland again trespassed on his property. He further said that on 15 November 2015, the Police “blockaded” his driveway by parking a Police car over it. Mr Lincoln said that he moved house in order to avoid what he described as harassment by the Police.
[73] Mr Lincoln said that when he appeared in the District Court in January 2016, the Timaru Crown Solicitor made a submission to Judge Couch that he did not have an endorsement for his rifle when the solicitor must have known that was untrue.
[74] In his affidavit evidence, Mr Lincoln set out a number of passages from the transcript of the hearing held in the District Court at Ashburton before Judge Maze on 19 June 2017.
[75] Mr Lincoln asserted that during the criminal trial, he learnt that Sergeant Scott had spoken by telephone to Sergeant Sutherland and said that Sergeant Scott had misled Sergeant Sutherland about the state of his mental health with the result that Sergeant Sutherland entered and searched his home.
[76] Mr Lincoln claimed that Sergeant Sutherland had “defeated the lock” that he said was on the gate to his rear yard. His evidence was that when he had left his home on the morning of 17 September 2015, he had left a load of clean laundry on a chair in the living room and that, by the time he had returned, the laundry had been thrown on the floor. He said that Sergeant Sutherland must have done this. He said that the clothing that Sergeant Sutherland had claimed may have been a body would not have been visible from the window that Sergeant Sutherland said he looked through when he saw it. He said Sergeant Sutherland committed a criminal offence when he used a
camera to photograph his private mail that was in the letterbox when Sergeant Sutherland searched his property.
[77] Mr Lincoln said that the Police armourer had deliberately overloaded one of his shotguns with undersize ammunition and caused it to explode in an attempt to fabricate evidence against him. He referred to evidence given by Mr Wainwright about having sent magazines from a .223 rifle to Mr Ngamoki for the purpose of manufacturing evidence. He said that no mention was made of the restricted magazine originally on the DPMS rifle in order to convey the impression that a normal capacity magazine sent off for examination was on it at the relevant time.
[78] He said that the Timaru Crown Solicitor persisted with the prosecution in respect of the firearms charges after he had been sent information confirming Mr Lincoln had not committed the offences. He says that by referring to him having “brandished” his rifle, the solicitor had deceived the District Court and was therefore acting with malice towards him.
[79][Redacted].
[80] Mr Lincoln said that what he described as “… evidence fabrication and tampering; arrogance; and lies and deceit” on behalf of the Police had caused him to experience post-traumatic stress disorder.
[81] Under cross-examination, Mr Lincoln acknowledged that in an affidavit filed in Court he had stated “The respondent, the New Zealand Police and I have been locked in litigation over the respondent’s unlawful administration of the Arms Act matters since around 2009.”
[82] He confirmed that he had arranged for the NSA Facebook page to be “discontinued”. Ultimately, he conceded that, to a large degree, he had started the NSA, funded it, and to the extent that it existed as an organisation, ran it.
[83] Throughout his affidavit evidence and in the oral evidence he gave, Mr Lincoln trenchantly expressed the view that on 17 September 2015, and subsequently, he had
done nothing wrong or inappropriate and that the various members of the Police that he interacted with were either incompetent, dishonest, corrupt or deliberately attempting to extract vengeance on him for the civil proceedings he had taken in the past.
[84] He referred on a number of occasions to an incident which took place approximately six months after the events of 17 September 2015 where a Christchurch gun owner had been apprehended walking down Memorial Avenue carrying a gun case which had a firearm inside it. When the Police were called by concerned members of the public they questioned that individual and then assisted him to get his destination.
[85] Mr Lincoln expressed the view that there was nothing different from this case and his actions in carrying a MSSA with a large capacity magazine fitted to it in both Timaru and Ashburton. He also expressed the view that actions by the Police justified him in adopting the position that he would be free to disregard requests or instructions from the Police in future. An example is his statement in the penultimate paragraph of his affidavit of evidence-in-chief where he said:
The stance taken by the police is very worrying. I will certainly not be stopping my vehicle again for the police while they remain a threat to my safety and security.
The defendant’s evidence
[86]The defendant called some 10 witnesses.
J F Ritchie
[87] Ms Ritchie was the service station attendant on duty at the NPD service station in Timaru on 17 September 2015 when Mr Lincoln called in to re-fuel. She observed Mr Lincoln remove something from his vehicle and sling it over his shoulder before walking into the shop. As he entered the shop she realised it was a firearm. She described it as a heavy assault rifle, a heavier weapon than a .22 or a .303. She said it was initially partly concealed by Mr Lincoln’s arm and that it was only when she saw the barrel hanging down by Mr Lincoln’s knee that she realised it was a firearm.
[88] She said she was taken aback when she realised it was a firearm and challenged Mr Lincoln as to what he thought he was doing walking into the shop with the firearm. She recalled his response as being that he couldn’t legally leave it in the vehicle. She indicated that her response to that was to say he could at least have had it in a gun bag but that at this point Mr Lincoln swung the firearm around to his front and said that he couldn’t find a bag big enough. She described Mr Lincoln as entitled and smarmy in his interactions with her.
[89] In cross-examination, Ms Ritchie confirmed that she did not feel physically threatened during the incident but was emotionally “quite freaked out”. She confirmed calling the Timaru Police to report the incident and being in tears after that.
[90] When challenged on her evidence that she knew that there were gun bags available that were large enough to contain a weapon of this size, Ms Ritchie confirmed that in a prior employment she had been responsible for ordering firearms bags from a supplier for her then employer. She had personally obtained from the suppliers bags that were big enough to take firearms of the size of the one Mr Lincoln carried into the service station.
J A Earl
[91] Ms J A Earl was the sales person at a jewellers shop on the main street in Ashburton. At 10.40 am on 17 September 2015, she was on the footpath outside the shop writing on the store’s blackboard.
[92] She described a four-wheel drive vehicle pulling up outside the public toilets on the opposite side of the road. She recalled the driver putting his sunglasses on before he got out of the vehicle. She said he then took a large gun out of the vehicle, look straight at her, slung the gun over his left shoulder and walked into the toilets. She said that 10 minutes later when he emerged he had the gun over his right shoulder and he put it back in the vehicle and drove off. She described the attitude of the person as being “hey, look at me, I’ve got a gun”.
[93] When cross-examined, Ms Earl said that she watched Mr Lincoln put his sunglasses on when he was inside his vehicle and then once he got out she saw him
pull his sunglasses down slightly, look straight at her, and then put them back up again. She described Mr Lincoln as having taken the firearm from the left passenger door and did not accept his suggestion that he exited the vehicle holding the firearm. She described Mr Lincoln’s attitude as attracting her attention and, when pressed by Mr Lincoln on what she meant, she replied “… it’s like you wanted attention”. She described Mr Lincoln as “constantly looking around” and that his behaviour was not what she would expect from someone who was just visiting the men’s toilet.
[94] Ms Earl described Mr Lincoln’s behaviour in looking about in every direction as “suspicious”. When pressed by Mr Lincoln as to why she was concerned at his behaviour, she indicated that it was about a year to the day since the WINZ shooting and that she did not know if that was going to happen again. Ms Earl agreed with Mr Lincoln that he did not threaten anyone with the firearm or point it at anyone.
J A Manning
[95] Senior Constable Manning gave evidence of having been a Police officer for some 33 years. He was on duty in the Lincoln area on 17 September 2015 and was directed to drive toward Ashburton after a sighting of a man carrying a large firearm in the vicinity of a jewellery shop. When he saw Mr Lincoln’s vehicle he did a U-turn and followed it.
[96] He said that Senior Constable Savage from the Rolleston Police Unit came up behind him. Having located a safe place to stop he activated his lights and the vehicle pulled over. He said that he was carrying a Police issue glock pistol and that Senior Constable Savage was also armed. He instructed Mr Lincoln to get on his knees and searched him. While he was doing this, Senior Constable Savage looked into the vehicle and saw a large military-style rifle with a magazine attached in the front of the vehicle.
[97] Senior Constable Manning said that the presence of the firearm in the front of the vehicle was inconsistent with his normal experience of firearms being carried in vehicles which was that farmers or hunters would usually store such firearms in a bag in the rear of the vehicle while being transported or in a lockable rack. He described these as sensible precautious and said that, in his experience, criminal or anti-social
people, or those suffering from mental health or stability issues, did not follow such sensible precautions and were a high-risk group. He also regarded the information that had been reported to him of Mr Lincoln carrying the firearm in public in the centre of Ashburton as being unusual.
[98] He said that when he asked Mr Lincoln why he had the firearm in his car, Mr Lincoln’s response was to say he was a licensed firearms holder and that he was allowed to. He said that in his response, Mr Lincoln was almost incomprehensible and was repeatedly citing sections of the Arms Act in a robotic and increasingly aggressive way, instead of just explaining what he was doing in plain English. He said that Mr Lincoln kept repeating that he had to carry his firearm. He said that Mr Lincoln was argumentative, kept repeating what he believed to be the law, and told him that he did not know what he was doing. He said that after having asked to stand up, Mr Lincoln became increasingly aggressive and approached him coming close to him. He saw a potentially dangerous situation developing and then grabbed Mr Lincoln near the collar on his shirt and arrested him for obstruction. Having arrested Mr Lincoln, he said he turned him around toward the car and handcuffed him. He said he had available, a capsicum spray, a taser and a glock pistol but did not utilise any of these.
[99] He confirmed that he had no prior knowledge of Mr Lincoln and was concerned that, as a result of being told by Senior Constable Savage that the firearm located in the vehicle had a magazine attached to it and what he described as Mr Lincoln’s argumentative attitude meant that he was losing control of the situation. He described Mr Lincoln as not behaving like a normal person.
[100] Senior Constable Manning described his interactions with Mr Lincoln following the case where the criminal charges arising from this incident were dismissed.
[101] Senior Constable Manning said that after the criminal trial in relation to the events of 17 September 2015 where the charges were either withdrawn by the Police or dismissed by Judge Maze, Mr Lincoln commenced civil proceedings against the Police and also attempted to join him to those proceedings. He said that in December
2017, Mr Lincoln arrived at his home unannounced, dressed in black and wearing what appeared to be a stab-proof vest, and dropped papers at his feet relating to the civil proceedings.
[102] He said Mr Lincoln filmed the incident via a small recording camera attached to his vest and also from a camera set up in his vehicle. He said a video was made of the filming which was then uploaded to two public websites, Vimeo and the Facebook page of the NSA. Accompanying the video was the soundtrack to the song “Bounty Hunter”. He said that the video included details of his personal residential address and a link to his wife’s personal Facebook page. He said that Mr Lincoln also sent an abusive message to his wife via Facebook.
[103] Senior Constable Manning gave evidence of Mr Lincoln commencing a private prosecution against him and another Police officer, Sergeant Greg Sutherland, involved in the case against Mr Lincoln. He said that Mr Lincoln attempted to prosecute him alleging seven offences arising under the Crimes Act, six of which related to events on 17 September 2015 and one relating to 19 June 2017 (the date of the District Court case against Mr Lincoln where Senior Constable Manning gave evidence). He said that the private prosecutions were rejected for filing.
[104] It was put to Senior Constable Manning that at the District Court hearing before Judge Maze, he had said that Constable Savage was unable to search Mr Lincoln’s car due to Mr Lincoln’s confrontational stance and that had led to Mr Lincoln’s arrest for obstruction, and this differed from his evidence in these proceedings which was that he considered he could not do his job and discharge his duty of making inquiries into the situation, and that led to the arrest for obstruction.
[105] Senior Constable Manning expressed the view that he did not have control of the situation until Mr Lincoln was arrested and it was only after that had occurred that the firearm was then removed from the vehicle at which point he believed the situation was under control.
[106] When questioned about the fact that in the District Court case, he had referred to arresting Mr Lincoln by placing a hand on his chest and his evidence in this Court
was that the arrest was affected by placing a hand on Mr Lincoln’s collar, Senior Constable Manning said he was describing the same thing. Under challenge, Senior Constable Manning confirmed his evidence that he believed Mr Lincoln got “in his space” advancing too close to him and that was a factor in why he thought he was losing control of the situation.
[107] In response to the assertion that his evidence that Mr Lincoln was aggressive and confrontational towards him prior to the arrest was untrue, Senior Constable Manning did not accept that and expressed the view that Mr Lincoln had encroached into his space, spoken loudly, and had not responded to his questioning as a normal person would. He described Mr Lincoln’s behaviour at the time as “being weird”.
[108] When pressed by Mr Lincoln as to what the concept “weird” meant, Senior Constable Manning said that Mr Lincoln’s behaviour was not of a normal person in that when asked why he had the firearm, straight away he referred to the section in the Act and kept repeating that in quite a loud voice and then got angry and got in his face. He described Mr Lincoln’s behaviour as “it was almost like you wanted to be arrested because you calmed down as soon as you were arrested.”
[109] It emerged during the cross-examination that Senior Constable Manning was not able to remember much of the detail of the incident on 17 September 2015 without refreshing his memory from reference to earlier documents. When questioned by Mr Lincoln as to why he was not able to remember, Senior Constable Manning explained that he had experienced memory impairment triggered by a traumatic event he had been involved in the prior year where he had apprehended the heavily armed mosque shooter who had just killed 51 people. He said that event, as well as a number of prior similar armed apprehensions, had affected him significantly.
[110] In re-examination, Senior Constable Manning provided further detail of this. Based on this information, the Court is satisfied that what might otherwise have been an inexplicable inability to recall some details of the event on 17 September 2015 without referring to documents, was genuine and understandable.
M W T Savage
[111] Senior Constable Savage of Rolleston said that on 17 September 2015 he heard a message via Police communications that a male had been observed exiting his car in Ashburton, slinging a weapon described as a machine gun over his shoulder and walking into the public toilet. The message gave the vehicle registration number. He confirms Senior Constable Manning’s evidence as to how the vehicle was stopped, that initially Mr Lincoln was compliant with instructions to kneel on the grass at the side of the road. He said that as he walked past Mr Lincoln’s vehicle he observed that the passenger side door was locked and that propped up against the passenger seat was what appeared to be a H&K SL8 MSSA with a large capacity magazine attached. He said that the magazine appeared to be one which could take up to 20 rounds.
[112] He described Mr Lincoln as becoming argumentative when Senior Constable Manning explained why he had been stopped, and that he appeared to be agitated and that his voice became raised.
[113] He described Mr Lincoln’s posture as changing to becoming aggressive and tense and said that he took one pace forward to be within less than half a metre of Senior Constable Manning.
[114] He described Mr Lincoln as having “basketball arms” which he said meant that Mr Lincoln appeared to be puffed up in the chest and arms with clenched fists and was starting to try and get into the face of Senior Constable Manning. He said Senior Constable Manning arrested Mr Lincoln by clutching his shirt collar and arrested him for what he recalled was disorderly conduct. He denied that Senior Constable Manning struck Mr Lincoln with a flat palm or Mr Lincoln had called out “that’s assault”.
[115] He said that during the process of arrest, Constable Lewis was searching the motor vehicle and taking photographs of the firearm inside it before removing the firearm from the vehicle.
[116] He expressed the view that in all circumstances, Mr Lincoln was a threat and his conduct was disorderly and obstructing the Police from making proper inquiries.
[117] Under cross-examination, Senior Constable Savage accepted that the voices of Mr Lincoln and Senior Constable Manning could have been raised because of the noise of the passing traffic. He expressed the view that Mr Lincoln had stopped complying with Senior Constable Manning’s instructions when he started encroaching on Senior Constable Manning’s personal space, describing it as “getting right up in his face”. He did not accept the proposition that Mr Lincoln was not aggressive or argumentative at all, or that Mr Lincoln did not say that the Police did not know what they were doing or mentioned s 26 of the Arms Act.
[118] Senior Constable Savage also expressed the view that he thought Mr Lincoln was attempting to provoke a response saying, “Your demeanour changed from being compliant and all of a sudden it was like a switch flicked in your head and you became aggressive as if you were orchestrating to provoke a response from Constable Manning.”
[119] Senior Constable Savage did not accept the proposition that it was Senior Constable Manning who was getting upset and raising his voice and being argumentative rather than Mr Lincoln. Senior Constable Savage was not able to explain why he recalled that Mr Lincoln was arrested for disorderly conduct rather than obstruction.
[120] Senior Constable Savage did not accept the suggestion that Senior Constable Manning had rushed at Mr Lincoln and struck him with an open palm strike on the left shoulder. He says that Senior Constable Manning was about half a metre from Mr Lincoln and did not rush at him from that distance.
[121] In re-examination, Senior Constable Savage said that Constable Lewis arrived at the scene when Mr Lincoln was already out of the vehicle and on his knees. Constable Lewis parked his patrol car on the other side of the road and had to fight against traffic to walk across four lanes and that once he arrived, Constable Lewis’ main focus was on the vehicle as Senior Constable Savage had pointed out to him there was a firearm in the front passenger’s footwell. He said that while Mr Lincoln was being arrested, Constable Lewis was searching the vehicle and that once the arrest
had been effected, he assisted Constable Lewis with searching the vehicle and clearing the firearm.
[122] Senior Constable Savage said in cross-examination that he had some 30 years’ experience as a firearms’ instructor both in the army and the Police. He also expressed the opinion that it was possible to buy gun bags in New Zealand that fitted H&K SL 8s, and he said that the SL 8 itself could be broken down into three distinct parts, the upper receiver and barrel, the lower receiver which he described as the “working parts or trigger mechanism” and the bolt root itself. He said that the exercise of breaking down the firearm took between 30 and 40 seconds and that the firearm could then fit in any backpack.
[344] Mr Lincoln’s written submissions do not address at all the fifth requirement for a successful case of malicious prosecution which is that the plaintiff has suffered damage as a consequence of the proceedings.
[345] Mr Lincoln actively sought to publicise the criminal prosecution against him including going so far as to publish a link to Judge Maze’s decision on Facebook. I have found that he did so for the purpose of attracting publicity to further the career that he hoped to develop as an advocate in relation to matters of firearms law. Far from suffering damage, he publicised the proceedings himself to achieve exactly the outcome that I have found that he sought.
[346] I also observe that one of the relevant factors in assessing damage in a case of malicious prosecution is the extent to which it could be said that the plaintiff contributed to the reason for the prosecution.51 This is a case where it could be said that Mr Lincoln brought the proceedings upon himself.
Trespass
17 September 2015 – Sergeant Sutherland
[347] In order to establish a cause of action in trespass, a plaintiff has to establish three elements:
(a)entry onto land by the defendant;
(b)that the plaintiff had possession of the land at that time; and
(c)that the defendant had no lawful justification for the trespass.
[348] The first two elements are not disputed and the issue for a determination is whether or not Sergeant Sutherland had lawful justification.
[349] As Mr Lincoln acknowledged in his written submissions, some findings of fact are required.
51 See Wilding v Te Mania Livestock Limited [2017] NZHC 717.
[350] Mr Lincoln asserted that Sergeant Sutherland obtained entry to his residence in Timaru by “defeating” a lock on a gate to a rear yard. Sergeant Sutherland’s evidence was that he went to the address for the purposes of making enquiries as this was the address where the registered proprietor of the vehicle that had been observed in Ashburton resided. He said he wanted to check whether the registered owner of the vehicle was at the house and, if so, who had the vehicle at the time and to check whether the address was otherwise connected to the person in Ashburton who had been seen openly displaying an MSSA on the main street.
[351] Sergeant Sutherland said he entered the property and knocked on the front door. When there was no answer he went around to the back of the property lifting the latch on the gate and then knocking on the back door.
[352] Sergeant Sutherland denied that there was any lock on the back gate and that all that he had to do was simply lift the latch.
[353] Mr Lincoln produced no evidence that there was ever a lock on the gate. He has been quick to claim recompense for damage done by the Police such as to the window through which Sergeant Sutherland gained access but there has not, at any stage, been a claim for damage to a padlock or any other form of locking mechanism.
[354] Mr Lincoln has also used the unusual expression “defeated the lock” to describe what he said were Sergeant Sutherland’s actions. He never explained how he asserted that the lock was “defeated”. I accept Sergeant Sutherland’s account that the gate was not locked, and he simply lifted the latch.
[355] The second disputed issue of fact is what Sergeant Sutherland saw when he looked in through the kitchen window. He said that he could see something on the carpet in front of the log fire which looked like a body lying faced down. He said it appeared to be trousers and a pair of footwear sticking out to the side.
[356] As discussed at [138] and [139] above, Sergeant Sutherland said he then knocked on the window but got no response, so he used his Police radio to talk to the Police Unit who had stopped the person with the gun and asked them to ask him what
was on the floor of the living room. He said he was told that the man who had been arrested said that it was a pile of clothes. He said however, he remained concerned that what he could see could be a leg and a foot and that, given what had prompted his visit to the property was a firearms incident involving a state of mind, he could not exclude it as being a body and felt that he could still be looking at a human that could be in need of medical assistance.
[357] Sergeant Sutherland’s account of calling the arresting officers over their Police radio was confirmed by the officers.
[358] Although Mr Lincoln, at the time, assured the officers that what Sergeant Sutherland could see on the floor was just a pile of clothes, he later changed his position and put it to Sergeant Sutherland in cross-examination that instead of there being a pile of clothes on the floor, the clothes were on a chair in the living room and that Sergeant Sutherland took that pile of clothes off the chair and scattered it on the floor. Sergeant Sutherland denied that. He denied touching the clothes or rearranging them in any way.
[359] The photographic evidence in the defendant’s bundle of documents showed a pile of dark coloured clothing on the floor with footwear at one end of it. The clothing and footwear were in front of a log burner. The pile was partially obscured by a wooden box. The room was untidy with a chair in it being draped with what appeared to be a quantity of clothes and what looked like another pile of clothes or dark material in a corner.
[360] The pile of clothes shown in the photograph was such that it could have been mistaken for a body.
[361] At the time Sergeant Sutherland made his observation through the window of the property, there is no evidence that he knew who the plaintiff was, nor did he would have any particular reason to want to fabricate evidence. I accept Sergeant Sutherland’s evidence that when he looked in the window he saw the pile of clothes and footwear on the floor and was genuinely concerned that what he was looking at might have been a body.
[362] Two legal issues arise in relation to the search undertaken by Sergeant Sutherland. The first is the extent of the common law “implied licence” and the second is the application of s 14 of the SASA.
[363] As Mr Lincoln accepted, the Police are entitled to exercise a common law licence to enter a property and make enquiries of the occupier. However, he says that that does not authorise entry into a gated rear yard whether or not the gate is locked. Mr Lincoln referred to the English case of Robson v Hallet as authority for the proposition that the implied licence was restricted to going to the front door.52
[364] However, there are a number of more recent New Zealand authorities that have taken a broader view of the implied licence.
[365] In the case of Attorney-General v Hewitt, the High Court considered an allegation of trespass where two Police officers had visited a property in the early hours of the morning following a complaint of domestic violence. The Police telephoned the property but got no response. They knocked on the front door but still got no response. They then knocked on a window which they believed to be the master bedroom and also received no response.53
[366] In considering whether the implied licence covered these actions, the High Court referred to the Court of Appeal decision in R v Brandley54 and, applying that case said:55
In determining the precise scope of implied licence, regard is to be had to the purpose and nature of the lawful business which it is desired to transact.
[367] The Court went on to note that the scope of the licence could not be defined without regard being had to the public interest in the effect of investigation of offences. The Court said:56
It was held that the implied licence to enter must be defined in terms of what is reasonable to enable the police officer to communicate with the occupier of
52 Robson v Hallet [1967] 2 All ER 407.
53 Attorney-General v Hewitt (1999) 17 CRNZ 236 (HC).
54 R v Brandley (1997) 15 CRNZ 363 (CA).
55 Attorney-General v Hewitt, above n 53, at [20].
56 At [21].
the dwelling house. That is not necessarily limited to knocking on the front door but might, for example, include communicating with a householder who was observed in the garden or yard or who could be seen in the house through a door or window.
[368] On the facts of that case, the Court held that the implied licence extended to the Police being able to knock on the doors and bedroom window.
[369] The relevant aspect of the public interest is that, at the time Sergeant Sutherland knocked on the front and back doors and looked in the window, he knew that a person associated with the address had been apprehended as a result of a sighting of someone with what had been described as a machine gun by a member of the public in the main street of Ashburton. His evidence was he could hear raised voices over the Police radio and that the arrest was not a “peaceful” one.
[370] The open carrying in the main street of Ashburton of a firearm described as a machine is aberrant behaviour. It raised the possibility that the firearm may have been used by the person carrying it. The fact that this was reported to have occurred in Ashburton would no doubt have brought to Sergeant Sutherland’s mind the then recent incident of the WINZ shooting in Ashburton. Given the duties on all Police officers discussed at [258] and [259] above, it was reasonable of Sergeant Sutherland to want to communicate with the occupier of the house to see what information they may be able to provide about the driver of the vehicle related to the incident in Ashburton which was registered to someone who lived at that address.
[371] Accordingly, I am satisfied that Sergeant Sutherland was entitled to knock on the front and back doors and look in the window.
[372] It is now necessary to consider the warrantless power of search that Sergeant Sutherland said he invoked.
[373]Section 14 of that Act provides:
Warrantless entry to prevent offence or respond to risk to life or safety
(1)A constable who has reasonable grounds to suspect that any one or more of the circumstances in subs (2) exist in relation to a place or vehicle may–
(a)enter the place or vehicle without a warrant; and
(b)take any action that he or she has reasonable grounds to believe is necessary to prevent the offending from being committed or continuing, or to avert the emergency.
(2)The circumstances are as follows:
(a)an offence is being committed, or is about to be committed, that would be likely to cause injury to any person, or serious damage to, or serious loss of, any property:
(b)there is risk to the life or safety of any person that requires an emergency response.
[374] Sergeant Sutherland said that what he saw was a body lying on the floor that might need medical attention. If that was indeed the case, then s 14(2)(b) of the SASA would apply.
[375] In addition to claiming that Sergeant Sutherland had moved the clothes from a chair to the floor to create the impression that they were a body, Mr Lincoln also submitted that Sergeant Sutherland could not have seen the pile of clothes through the window because his view was obstructed by a breakfast bar and wooden toolbox.
[376] Mr Lincoln did not produce any photographs taken from the position where Sergeant Sutherland was when he looked in the window. It is clear from the photographs produced by the defendant that there was a wooden box between the pile of clothes and the window. That box may well have partly obstructed the view and made it difficult for Sergeant Sutherland to accurately identify what he was in fact seeing, but it was not a particularly large box (when compared to the size of the pile of clothing) and it is difficult to see how it could have completely obscured Sergeant Sutherland’s view. I accept Sergeant Sutherland’s evidence on this point.
[377] Mr Lincoln raises a further argument saying that, even if what he describes as the “persona in distress” justification is accepted, Sergeant Sutherland took a step into the hallway and called out to see if any occupant in the house responded. His evidence was that when he got no response, he did not proceed further into the hallway and left the property.
[378] Mr Lincoln submitted that Sergeant Sutherland was simply “speculating” that someone else might have been in trouble inside the house.
[379] Sergeant Sutherland did not “enter” the house to take a step into the hallway and call out to see if anyone else was there. He was already in the house, pursuant to what I have found was a valid exercise of his warrantless search power under s 14 of the SASA.
[380] The issue is whether, having satisfied himself that what he thought might have been a body was in fact a pile of clothes. He lost the protection provided by the SASA by taking a step into the hallway and calling out to see if anyone else was there. I am not convinced that, having lawfully gaining entry to the property, this action amounted to trespass. There was a significant public interest in Sergeant Sutherland confirming that the firearm that had been displayed by Mr Lincoln in Ashburton had not been used to cause harm to anyone. Even if this were not the case and there was a technical trespass, the circumstances are such that it could be regarded as trivial and not something that would justify damages.
[381] The final element of trespass alleged in relation to the search was the fact that Sergeant Sutherland looked into Mr Lincoln’s letterbox and photographed the envelopes that were inside it. Mr Lincoln says that this was done without any lawful authority. Sergeant Sutherland says that it was something that his implied licence extended to and he wanted to establish whether the Police needed to be concerned for anyone else or whether there were further lines of enquiry which could be made to assist the Police with responding to the arms incident.
[382] In this regard, it is important that the mail was not just Mr Lincoln’s “personal mail”. There was mail addressed to other people.
[383] Sergeant Sutherland’s explanation for opening the letterbox and photographing the envelopes inside was that he wanted to establish whether the Police needed to be concerned for anyone else, or whether there were any further lines of enquiry which could be made to assist the Police with responding to the arms’ incident. Counsel for the defendant points to the fact that the Police’s concern for the welfare of those
associated with the plaintiff had extended to deploying officers to an address in Christchurch to check on the welfare of the occupant of that address.
[384] At the stage that Sergeant Sutherland opened the letterbox and photographed the mail inside, he knew that the person driving the vehicle which was registered to an occupant at the address had been stopped and arrested. He did not know whether that person was the registered proprietor of the vehicle.
[385] The Police had a genuine interest in knowing exactly who might have been residing at the address in order to establish whether there might be someone potentially at risk. Such actions fall within the implied licence discussed above.
[386] Had Sergeant Sutherland actually opened the mail and read the contents, then such action would have been beyond anything protected by the implied licence because it would not have been necessary in connection with the reason that Sergeant Sutherland had attended the house.
[387] Accordingly, none of the incidents which occurred on 17 September 2015 give rise to a cause of action in trespass.
28 November 2015
[388] On 28 November 2015, two Police officers, Sergeant Sutherland and Constable McMahon attended at the plaintiff’s residence in Timaru. Sergeant Sutherland knocked on the front door and when there was no response, Constable McMahon knocked on the back door but when she could not raise any response either, the pair left.
[389] There had been a burglary in a neighbouring property and the Police were conducting investigations to see if any of the neighbours had observed anything that might be helpful.
[390] For the reasons discussed above in relation to the other cause of action in trespass, the Police’s actions would be covered by their implied licence.
[391] However, in the present case, Mr Lincoln had written to Inspector Gaskin, the Area Commander of the Police at Timaru on 17 September 2015 informing him that the implied licence to enter his property was revoked. Attached to that letter was a notice under the Trespass Act 1980 addressed to “All members of New Zealand Police”. The plaintiff had also filled out a written trespass notice addressed to “New Zealand Police (Sergeant Nerida Manson) and was said to be a record of a “verbal trespass”.
[392] In order to be effective, a trespass notice would need to have been served on, or communicated directly to, the person who is the subject of the notice.
[393] A notice addressed to “All members of New Zealand Police” will not be effective unless the copy has been brought to the attention of the officer concerned or, if a verbal notice is relied on, it has been communicated to the officer.
[394] There is no evidence that the trespass notice dated 17 September 2015 was served on either Sergeant Sutherland or Constable McMahon. Under cross- examination, Sergeant Sutherland said he thought he had heard talk of a trespass notice but specifically denied being aware that a written trespass notice existed.
[395] The verbal notice referred to by the plaintiff appears to have been addressed specifically to Sergeant Manson. Sergeant Sutherland was not cross-examined as to whether he knew anything about this verbal notice.
[396] In the absence of evidence that Sergeant Sutherland was aware of the written trespass notice sent to Inspector Gaskin, it cannot operate so as to revoke the implied licence that he had to enter on to the plaintiff’s property in the course of investigation of a burglary of a neighbouring property on 28 November 2015. This cause of action in trespass is not made out.
Conclusion
[397] As none of the plaintiff’s causes of action have been made out, the claim is dismissed.
[398] The parties are invited to agree costs but in the absence of agreement the respondent is to file a memorandum of no greater than three pages in length within 14 days of the date of this judgment, and the plaintiff will file a memorandum in reply again, of no more than three pages in length, within 14 days of service on him of the defendant’s application.
Churchman J
Solicitors:
Raymond Donnelly & Co, Christchurch for Defendant cc: R Lincoln
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