Lincoln v Attorney-General - [2020] NZHC 1252

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 1252
Decision Date: 8 June 2020

CaseChat Overview and Summary

The plaintiff, Richard Lincoln, a part-time law student and gun enthusiast, sought damages against the defendant, the Attorney-General, for false imprisonment, assault, malicious prosecution, and trespass. Lincoln's claims stemmed from his arrest on 17 September 2015 for carrying a military-style semi-automatic rifle in public, which he claimed was lawful. The defendant denied liability and argued that Lincoln's actions were unlawful and that any police actions were justified. The court had to determine whether Lincoln's actions were lawful, and if the police actions were justified and within the scope of their authority.

The court found that Lincoln's claims were not substantiated. It held that Lincoln's actions in carrying the rifle in public were unlawful and that the police had reasonable grounds to arrest him. The court found that the police actions were justified and within the scope of their authority, including the search of Lincoln's property and the examination of his mail. The court held that the police had an implied licence to enter Lincoln's property and that their actions were necessary to prevent an offence or respond to a risk to life or safety.

The court dismissed Lincoln's claim in its entirety. It held that Lincoln had not established any of the elements of his causes of action and that the defendant was not liable for any of the alleged wrongs. The court invited the parties to agree on costs but noted that if they could not agree, the defendant would file a memorandum of no greater than three pages in length within 14 days of the date of the judgment, and the plaintiff would file a memorandum in reply within 14 days of service on him of the defendant's application.

Orders