NEW ZEALAND POLICE AND ANDREW JOHN COTTLE
[2024] NZHC 3415
•15 November 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-212
[2024] NZHC 3415
BETWEEN NEW ZEALAND POLICE
Appellant
AND
ANDREW JOHN COTTLE
Respondent
Hearing: 6 August 2024 Counsel:
S Bicknell for Appellant NJB Taylor for Respondent
Judgment:
15 November 2024
JUDGMENT OF HARVEY J
[Appeal on a question of law]
This judgment was delivered by me on 15 November 2024 at 3.30pm Registrar/Deputy Registrar
……………………………………
Solicitors/Counsel:
Kayes Fletcher Walker, Auckland
NJB Taylor, Civic Chambers, Auckland
NEW ZEALAND POLICE v COTTLE [2024] NZHC 3415 [15 November 2024]
Introduction
[1] On 4 April 2024, following a judge-alone trial in the Manukau District Court, Judge A M Wharepouri acquitted Andrew Cottle of two charges of unlawfully possessing a prohibited firearm and two charges of unlawfully possessing a restricted weapon.1 The Police seek leave to appeal that decision on a question of law:
Was Judge Wharepouri wrong to hold that the definition of “prohibited firearm” in s 2A of the Arms Act 1983 does not incorporate the extended definition of “firearm” in s 2 of the Act?
[2] The question of law concerns the two charges of unlawfully possessing a prohibited firearm. The Police do not seek to challenge the Judge’s finding on the restricted weapon charges. The Police submitted that the appeal should be allowed as excluding the extended definition of a firearm from the definition of a prohibited firearm would create an absurdity that would be contrary to Parliament’s intention.
Leave to appeal
[3] Section 296 of the Criminal Procedure Act 2011 requires leave to appeal the Judge’s decision on a question of law. In Brown v R, the Court of Appeal observed a question of law in the context of s 296(2) must raise one of the three standard errors:2
(a)a misdirection of law apparent in the decision;
(b)oversight of a relevant matter, or consideration of an irrelevant matter; or
(c)a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.
[4] Ms Bicknell, for the Police, submitted that this appeal falls within “a misdirection of law apparent in the decision”. I am satisfied that the proposed question of law is arguable. Leave to appeal is therefore granted.
1 Police v Cottle [2024] NZDC 7280 [Decision on appeal]. Unlawfully possessing a prohibited firearm: Arms Act 1983, s 50A. Maximum penalty five years’ imprisonment. Unlawfully possessing a restricted weapon: Arms Act 1983, s 50(1)(b). Maximum penalty three years’ imprisonment or a fine not exceeding $4,000.
2 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
Background
[5]I adopt the Judge’s undisputed summary of the facts:3
[4] Over the years, [Mr Cottle], a TV and film armourer, has held a number of firearms licences with various endorsements. In 2022, he held a theatrical and collectors license with C (restricted weapons), D (bona fide collector) and P (prohibited firearms and magazines) endorsements.
[5] The facts, which are not in dispute, may be briefly stated. On 18 October 2022, the police carried out a search at the defendant’s home at [Waiua Pa] and his parent’s address at [Ardmore]. On speaking to police he was given his Bill of Rights advice, a copy of the search warrant to do with both addresses, and a letter revoking his firearms licences. A team of police officers then conducted their search. Some were interested in evidence of criminality while others from the firearms compliance were more concerned with the search and seizure of the defendant’s large number of legitimately held firearms and ammunition.
[6] Apart from a rifle under a bed in a bedroom, and another one in the garage with ammunition (which the defendant claimed had been readied to go hunting later that morning), the rest of the defendant’s firearms and ammunition at his home were kept in a large shed or barn like structure. The barn was secured by a heavy metal bar across the main entrance, and had inside it a number of tools, gun safes, storage shelves, and metal filing cabinets. Inside one of the safes police located two 37 mm single-shot launchers capable of firing munitions. These launchers are the subject of the restricted weapons charges.
[7] At his parent’s address in Ardmore the defendant kept a shipping container in connection with his work. The container, which was unlocked, contained assorted gear and equipment as well as a small metal filing cabinet. Inside the locked filing cabinet the Police found two upper and lower receivers. The two lower receivers were on one shelf, while the two upper receivers were on a separate shelf. The receivers were capable of being fitted together in such a way making two fully functioning firearms. Once assembled the firearms were tagged and labelled with references 85 and 86. These items are the subject of the prohibited firearms charges.
District Court decision
[6] On the prohibited firearms charges, after observing the relevant provisions of the Arms Act 1983 (the Act), the Judge identified the following issues to determine:
[13] The starting issue in this trial is whether any of the receivers, as they were found, were “firearms” for the purposes of the Act? The second and related issue is even if the receivers were firearms, were they “prohibited” firearms? And last, even if the receivers could be regarded as prohibited firearms could it be said that the defendant was in possession of them such that he had committed an offence under s 50A?
3 Decision on appeal, above n 1.
[7] The Judge considered the evidence of two expert witnesses, Mr Bath, an associate of Mr Cottle, and Mr Low, a police armourer, who observed that, as the upper receivers were in themselves capable of firing a projectile or missile, they met the definition of a firearm. However, the Judge observed that the upper receivers were incapable of semi-automatic fire, unless connected to a lower receiver.4 He noted both experts agreed the two rifles as assembled were semi-automatic weapons and that once assembled, they were prohibited firearms.5 The rifles were made up of modular receivers from four separate manufacturers and could be assembled into a working firearm with relative ease. Mr Low confirmed both rifles were in full working order.6
[8] The Judge observed the rifles were found by Police disassembled. In considering whether the upper receivers in Mr Cottle’s possession became “prohibited firearms” because they were stored together with a number of lower receivers and could be easily assembled with one another to create a semi-automatic firearm, the Judge was doubtful for two reasons:
[21] … First, the definition of a “prohibited firearm”, unlike a firearm, does not have an expanded meaning. If Parliament had intended to widen the definition of prohibited firearm to include a dismantled semi-automatic; a firearm that for the time being is incapable of firing in a semi-automatic action but which could be remedied and made complete by replacement, correction, or repair it would have said as much.
[22] Secondly, upper, and lower receivers, intended to be an integral part of a firearm, are clearly “parts,” and defined as major firearm parts. They are also “prohibited parts” pursuant to s 2C of the Act as they enable a firearm to be fired with semi-automatic or automatic action. The possession of prohibited parts is restricted under s 19B to those over 18 years having an appropriate licence and with endorsement made under s 30 permitting the holder to possess a prohibited firearm or magazine. Those in possession of prohibited parts without a reasonable excuse and not otherwise authorised by an endorsement made under section 30B to possess a prohibited firearm commits an offence pursuant s 50C of the Act. Thus it appears inarguable that the Arms Act treats “firearms” and “parts” distinctly, as evidenced by the separate offences under ss 50A and 50C.
[9] In concluding the definition of “prohibited firearm” as it appears in s 2A of the Act does not incorporate the extended definition of “firearm” contained in s 2, the
4 At [15].
5 At [16].
6 At [17].
Judge referred to this Court’s decision in Police v Jackson.7 In that judgment the Court considered the expanded definition of a firearm under s 2 of the Arms Act 1958 in the context of a defendant found on a public street in possession of .22 calibre rifle but without the bolt which had been left at his brother’s address.
[10] The Judge accepted the evidence of Mr Bath and agreed a common sense approach was required, suggesting it would be wrong for a person to commit the offence of being in possession of prohibited parts while being in possession of a prohibited firearm - simply because the parts could be used potentially to make up a complete firearm. The Judge stated it would be nonsensical if a person were to commit the offence of possessing a prohibited firearm by having parts that could be assembled into such, while being legally entitled to have possession of those prohibited parts due to holding the necessary licence and endorsement, as was the case for Mr Cottle.8
[11]The Judge concluded:
[25] For these reasons being in possession of prohibited parts, even if capable of being assembled into a prohibited firearm, is not the same thing as being in possession of a prohibited firearm.
…
[27] Accordingly, I am of the view that the two s 50A charges in relation to the prohibited firearms cannot be made out by the prosecution on the facts of this case. This is because taking a common sense approach the prohibited firearms did not exist until such time as former Constable Blainey assembled the upper and lower receivers in the manner he did. At this point, the police had made a prohibited firearm. Prior to the witness taking this step the police had only found a number of prohibited parts. But as the defendant held the relevant P endorsements under s 30 at the time, he was lawfully in possession of them and had not committed any offence contrary to s 50C.
Police submissions
[12] Ms Bicknell submitted that the Judge erred in finding the s 2 definition of firearm should be excluded from the definition of a prohibited firearm. That finding creates an absurdity and is inconsistent with Parliament’s intention. Counsel contended that Parliament’s purpose in amending the Act was to severely restrict
7 At [21], citing Police v Jackson [1980] 1 NZLR 78 (HC).
8 At [24].
access to prohibited weapons. The provisions should be interpreted accordingly to achieve that purpose.
[13] Ms Bicknell argued that the offence of possessing a prohibited firearm carries a five-year maximum penalty and is a strict liability offence. In contrast, possessing a prohibited part carries a two-year maximum penalty and has a “reasonable excuse” defence and exemption available for those with an endorsement to possess a prohibited firearm. Counsel submitted that Parliament must have meant for there to be a meaningful difference between the two offences. That purpose would be frustrated if the legislation could be circumvented by storing a prohibited firearm in two parts.
[14] Further, Ms Bicknell contended that the Judge’s finding that it did not make sense that a person could have committed both possession of a prohibited part and of possession of a prohibited firearm is contrary to the policy underpinning the legislation. Parliament determined possessing disassembled firearm parts entails possessing a firearm. If possessing a part of these prohibited firearms was dangerous enough to be an offence in itself, that does not negate the policy rationale of criminalising possessing a whole, disassembled prohibited firearm. Counsel submitted that to accept the Judge’s approach would mean that a person with a prohibited weapon endorsement could store a prohibited firearm disassembled and commit no offence, despite having no permit for the prohibited firearm as required by s 19A(1)(b).
[15] Ms Bicknell contended that the Judge’s conclusion that a prohibited firearm does not include the extended definition of “firearm” in s 2 of the Act is inconsistent with the plain wording of the text. She argued that, as s 2A does not include its own definition of firearm, necessarily, the Act’s overall definition should apply. It would then be absurd to conclude that Parliament had intended that items with additional restrictions, such as prohibited items, were subject to a lesser restriction in terms of the extended definition.
Mr Cottle’s submissions
[16] Mr Taylor submitted that the Judge’s s 30A interpretation was correct and so the appeal should be dismissed. Despite Mr Cottle being charged under s 30A, the
evidence confirmed that he was in possession of four prohibited parts, governed by s 30C. Counsel contended that Mr Cottle is an exempt person under s 50C as an endorsement holder under s 30B. Mr Taylor argued that it was Parliament’s intention that an exempt person may possess prohibited parts and major parts, and these could be manufactured or assembled into a prohibited firearm by applying for a permit to possess before doing so under s 35 of the Act. However, here it was the Police who assembled the prohibited parts into prohibited firearms, not Mr Cottle.
[17] Counsel submitted, tracking the legislative history of the definition of “firearm”, that Parliament created and enacted the s 2 definition of a firearm to deal with situations involving real, purpose built, functioning firearms that for some reason “for the time being” were not capable of discharging a round. In contrast, the definitions of prohibited firearm, prohibited firearm part and exempt persons are additions to the Act. These have substantially “affected” and made ambiguous the definition’s original meaning. Mr Taylor contended that the key distinction is that it is accepted that the four items located are prohibited firearm parts. An exempt person may possess prohibited parts that can be assembled into a prohibited firearm.
[18] Jordan v Commissioner of Police concerned the interpretation of the Arms (Restricted Weapons and Specially Dangerous Airguns) Order 1984.9 Counsel argued that a strict interpretation of the words designed for the purpose is not practical when dealing with items that can have multiple uses and changing functionality. Mr Taylor submitted that considering the legislative history, overall context and practicality is vital in the interpretation of what is a prohibited firearm. He suggested that applying the extended definition of firearm to the definition of prohibited firearm will potentially cause serious miscarriages of justice.
Legal principles
[19] This appeal is brought under s 296 of the Criminal Procedure Act 2011. Under s 300, this Court must determine a first appeal by:
(a) confirming the ruling appealed against; or
9 Jordan v Commissioner of Police DC Auckland CIV-2012-004-002276, 26 September 2014, at [50].
(b) doing any of the following if the court considers the ruling is erroneous and, in the case of the person’s conviction or acquittal or of a direction by a court to stay the prosecution or to dismiss the charge under section 147, also resulted in a miscarriage of justice:
(i) setting aside the conviction and entering an acquittal, if the person has been convicted; or
(ii) directing a new trial, in any case; or
(c) varying or substituting the sentence or remitting the sentence to the sentencing court with directions, if the decision relates to sentence and the court thinks the decision is erroneous; or
(d) remitting the matter to the trial court in accordance with the opinion of the appeal court; or
(e) making any other order that the court considers justice requires.
[20]Section 50A of the Act provides:
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 5 years who—
(a)is in possession of a prohibited firearm; and
(b)is not authorised or permitted expressly by or pursuant to this Act to be in possession of that prohibited firearm.
[21]Section 2A provides:
(1)In this Act, unless the context otherwise requires, prohibited firearm—
(a)means any of the following firearms:
(i)a semi-automatic firearm, other than—
(A)a specified semi-automatic firearm:
(B)a semi-automatic shotgun with a non- detachable tubular magazine or magazines that are capable of holding no more than 5 cartridges commensurate with that firearm’s chamber size:
(C)a small semi-automatic pistol:
(D)a semi-automatic pistol (not being a small semi-automatic pistol) in the possession or under the control of a person referred to in subsection (3):
(ii)a pump-action shotgun that is capable of being used with a detachable magazine:
(iii)a pump-action shotgun that has a non-detachable tubular magazine or magazines that are capable of holding more than 5 cartridges commensurate with that firearm’s chamber size:
(iv)a centrefire pump-action rifle that is capable of being used with a detachable magazine:
(v)a centrefire pump-action rifle that has 1 or more non- detachable magazines (tubular or otherwise) that are capable of holding more than 10 cartridges commensurate with that firearm’s chamber size; and
(b)includes any other firearm declared by Order in Council made under section 74A to be a prohibited firearm for the purposes of this Act.
…
[22]Section 2 provides “firearm”:
(a)means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
(b)includes—
(i)anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
(ii)anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
(iii)anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled; and
(iv)any specially dangerous airgun
[23]Section 50C provides:
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 2 years who without reasonable excuse is in possession of a prohibited part and who is not authorised by an endorsement made under section 30B to possess a prohibited firearm.
[24]Section 2C defines a prohibited part, unless the context otherwise requires, as:
(a)a part of a prohibited firearm:
(b)a component that can be applied to enable, or take significant steps towards enabling, a firearm to be fired with, or near to, a semi- automatic or automatic action.
Discussion
[25] The Act was amended by the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Act 2019 in response to the Christchurch Mosque attacks. That Act introduced the term “prohibited firearm” and repealed references to “military style semi-automatic” firearms. As the changes to the Act are relatively recent, there is little case law on the interpretation of the prohibited firearms and parts provisions.10
[26]Section 1A, as inserted into the Act in 2020, provides:11
(1)The purposes of this Act are to—
(a)promote the safe possession and use of firearms and other weapons; and
(b)impose controls on the possession and use of firearms and other weapons.
(2)The regulatory regime established by this Act to achieve those purposes reflects the following principles:
(a)that the possession and use of arms is a privilege; and
(b)that persons authorised to import, manufacture, supply, sell, possess, or use arms have a responsibility to act in the interests of personal and public safety.
[27] As the Judge observed, the Act treats firearms and parts distinctly. However, the question to be determined is whether that distinction means any person possessing prohibited parts, whether lawfully as an exempt person, or unlawfully, can also be in possession of a prohibited firearm, despite its disarticulation. It is possible, therefore, to possess prohibited parts without possessing a dissembled prohibited firearm. For example, an individual possessing only lower receivers meets the s 2C definition of
10 It is worth noting that at the time of judgment, further review of the Arms Act is underway with expected changes to the regime predicted between 2024 and 2026.
11 Arms Legislation Act 2020.
prohibited part. However, two lower receivers are not capable of assembly into a prohibited firearm.
[28] The appellant submitted that the Judge’s interpretation was inconsistent with the plain wording of the text. First, as the s 2A definition of prohibited firearm does not define “firearm”, the definition that applies to the whole of the Act, contained in s 2, must apply. Secondly, that the plain text reading of s 2C is that “prohibited parts” means items which modify firearms such that they become prohibited firearms.
[29] However, while a separate definition of “firearm” is not included in the text of s 2A, that does not automatically mean that the extended definition under s 2 applies. It could as easily be said that the inclusion of ss 2B and 2C, which define “prohibited magazine” and “prohibited part” respectively, excludes the extended definition in s 2 from applying to prohibited firearms. Those sections are superfluous if the definition of prohibited firearm in s 2A includes:
(ii) anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
(iii) anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled…
[30] Nor do I consider it unreasonable that a broader definition might apply to firearms than to prohibited firearms. The penalty for dealing with prohibited firearms under the Act is more stringent and additional endorsements are required to enable lawful possession. Section 50A of the Act provides that unlawful possession of a prohibited firearm attracts a maximum penalty of five years’ imprisonment. By way of contrast s 50C provides a maximum penalty of two years’ imprisonment for unlawful possession of a prohibited part.
[31] That said, there is also some overlap between prohibited parts and prohibited firearms in the regime. The text of s 50C states:
Every person commits an offence and is liable on conviction to imprisonment for a term not exceeding 2 years who without reasonable excuse is in
possession of a prohibited part and who is not authorised by an endorsement made under section 30B to possess a prohibited firearm.
[32] Section 30B lays out the criteria applied by Police in granting endorsements “in respect of prohibited firearm[s] or prohibited magazine[s]” following an application for same under s 30A. The Act thus conflates “prohibited firearm” and “prohibited part”, at least with respect to applications for endorsements. Overall, I do not consider that the text of the Act supports the Police position that the extended definition of ‘firearm’ applies to the definition of ‘prohibited firearm’ in s 2A.
[33] Turning to the facts of this appeal, counsel submitted that the upper receivers are in themselves capable of firing a projectile and therefore meet the definition of “firearm”. The upper and lower receivers were stored as separate parts but in the same storage cabinet where they were easily capable of assemblage into two firearms fitting the description of “prohibited firearm”. Ms Bicknell contended that not incorporating the s 2 definition into s 2A would allow individuals to store prohibited firearms as disassembled prohibited parts and then only be liable for the lesser offence of possessing a prohibited part. However, Mr Taylor argued that departing from the Judge’s position could result in miscarriages of justice. Mr Cottle, while being legally entitled to have possession of the prohibited parts due to holding the necessary licence and endorsement, would be committing the offence of possessing a prohibited firearm. That tension is the result of ambiguity in the interpretation of the provisions.
[34] If Mr Taylor’s submissions are accepted, it may then undermine the purpose and effect of s 33A(1)(c)(ii) of the Act. That section requires persons with a theatrical endorsement or other exemption to ensure prohibited firearms for which they have a licence are rendered inoperable by removal of a vital part which is to be stored at a separate address. Under counsel’s proposal, this would then render the former firearm into two separate parts. In which case, there is no need for an endorsement to possess a prohibited firearm. By not obtaining an endorsement under s 30B, the owner can avoid any requirement to store the parts at separate addresses. Therefore, Mr Taylor’s submission, when viewed in the context of the s 33A(c)(ii), may lead to results which are inconsistent or absurd.
[35]The Judge said on this point:12
Do the upper receivers in Mr Cottle’s possession become “prohibited firearms” simply because they were stored together with a number of lower receivers and could be easily assembled with one another to create a semi- automatic firearm? I am doubtful about this question being answered in the affirmative for two reasons. First, the definition of a “prohibited firearm”, unlike a firearm, does not have an expanded meaning. If Parliament had intended to widen the definition of prohibited firearm to include a dismantled semi-automatic; a firearm that for the time being is incapable of firing in a semi-automatic action but which could be remedied and made complete by replacement, correction, or repair it would have said as much.
[36] The appellant provided the Hansard report for 10 April 2019, which records Parliamentary debate about the Arms (Prohibited Firearms, Magazines, and Parts) Amendment Bill. The proposed changes are discussed as being intended to remove semi-automatic and military style weapons from circulation in response to the Christchurch terror attack. The amendments are described as creating “a prohibition regime, not a licensing regime” when discussing exemptions for use. The position of Mr Cottle and other theatrical armorers is not expressly addressed, other than to note that profession as being exempt from a ban on prohibited firearms under the Act.
[37] To the extent that reference to parliamentary debates as to intent is of assistance, I note that the discussion does address the concern raised by the appellant
— that prohibited parts may be used to modify standard firearms to make them especially dangerous. Stuart Nash, then Minister of Police, said:
There are a number of other AK weapons that you used to be able to buy – you can’t now – with your stock standard licence, but then the glaring loophole was you could go out without any licence and buy a magazine that took 30 shots. Then what you could do is you could put that into your AR-15… You put it in there and you had a killing machine…
This was a massive loophole in our arms legislation. We know we needed to close this down, and everyone came behind us – thank you to the National Party, New Zealand First, the Greens, and, of course, Labour.
[38] Several members also addressed the position of exempt persons under the new regime and stressed the added requirement under s 33A that a vital part of a prohibited firearm be stored at a separate address (as approved by Police) to make it inoperable
12 Decision on appeal, above n 1, at [21]. Footnotes omitted.
and lessen the risk of prohibited weapons being stolen from collectors or other exempt persons and used in the community.
[39] Taken together, Parliament’s intention here is reasonably clear. Under urgency, in response to a national tragedy in which semi-automatic weapons were used, legislation was passed to remove dangerous firearms from the community. That legislation also provided more stringent rules for legitimate owners like Mr Cottle. I therefore reach a different conclusion to the Judge that Parliament did not intend to include in its conception of ‘prohibited firearm’ a prohibited firearm which is for the time being disarticulated. Section 33A requires that prohibited firearms must be disarticulated and stored separately. It is unsupportable that such caution is required with respect to a prohibited firearm while prohibited parts, capable of forming an operative prohibited firearm, can be stored together without issue.
[40] As indicated, at first blush the text of the legislation supports the Judge’s conclusion. I am also sympathetic to Mr Cottle who believed that he had taken the necessary steps to gain endorsements for the prohibited parts in his possession. There will be other members of the public in his position. The present circumstances are as a result of the amendments. It is therefore desirable that the relevant officials, review body or select committee make appropriate recommendations for Parliament to correct this oversight. The offence for possession of a prohibited firearm attracts a maximum penalty of five years’ imprisonment. It is unconscionable that legitimate, licensed owners be subject to that penalty without clear forewarning.
[41] At trial, the parties agreed that the prohibited parts (the upper and lower receivers) in this appeal may also form prohibited firearms under the Act once assembled. Section 2C defines prohibited parts as either a part of a prohibited firearm, or some component which may be added to a firearm to make it capable of automatic or semi-automatic firing. The legislation does not however specify that once component parts are stored proximately to others, they become prohibited firearms. I have agreed that this interpretation captures Parliament’s intention to eliminate access to prohibited firearms.
[42] However, it is doubtful that Parliament considered the practical requirements of theatrical armourers, in particular, when drafting these amendments. Any suggestion that Mr Cottle would be required to consider each possible combination of parts in his stock, and gain permits for each hypothetical firearm created is clearly unworkable, as the Judge recognised. Mr Bath, who has 40 years’ experience as a gunsmith and 25 years’ experience as a theatrical armorer, stated that he believed the receivers, once separated, were prohibited parts. Mr Cottle was in possession of a number of other prohibited firearms for which he held valid permits. At the time, he was not required to gain permits for the prohibited parts in his possession, but he did hold valid endorsements to do so.
[43] In Anderson v R, the Court of Appeal said of the jurisdiction granted to an appeal court under s 300 of the CPA that:13
[44] The scope of the appeal court’s powers in s 300(1) is also relevant. For the most part, those powers suggest what is in issue is a decision putting an end to matters. For example, the court may set aside the conviction and enter an acquittal or vary a sentence. This point cannot be taken too far because of the catch-all provision in s 300(1)(e) enabling the court to make “any other order that the court considers justice requires.”
[44] The Police have sought a retrial of this matter. Whether it is appropriate to order a retrial is guided by the Privy Council’s decision in Reid v R.14 In H v R, the Supreme Court affirmed the applicability of Reid in New Zealand and stated the relevant considerations identified by Lord Diplock:15
The seriousness or otherwise of the offence must always be a relevant factor: so may its prevalence; and where the previous trial was prolonged and complex, the expense and the length of time for which the court and jury would be involved in a fresh hearing may also be relevant considerations. So too is the consideration that any criminal trial is to some extent an ordeal for the defendant, which the defendant ought not to be condemned to undergo for a second time through no fault of his own unless the interests of justice require that he should do so.
[45] This appeal concerns a regulatory offence which attracts strict liability. The Police have indicated that a retrial would not require any further fact finding in order
13 Anderson v R [2016] 2 NZLR 321, [2015] NZCA 518. See also H v R [2022] 1 NZLR 21, [2022]
NZSC 42 at [28].
14 Reid v R [1980] AC 343 (PC).
15 H v R, above n 13 at [32], citing Reid v R at 350.
for convictions to be entered. Yet to hold Mr Cottle accountable on the basis of unclear statutory drafting would appear to be contrary to the principle that the law ought to be predictable and not apply retrospectively. This is a pillar of the rule of law. As the authors of Principles of Criminal Law put it:16
The rule of law mandates that people should be governed by concrete rules that are ascertainable and certain,17 and which minimise the opportunity for officials to wield arbitrary power. This requires both that the rule be stated in advance, and also that it be stated clearly. Clarity is essential if citizens are to have fair warning that by their prospective actions they are in danger of incurring a criminal sanction. If individuals understand the law, they will be able properly to decide what to do in light of the guidance that the law is meant to provide. Only then can the law act as the deterrent it is intended to be. And only then do citizens have a fair opportunity to steer themselves clear of criminal liability.
[46] That citizens are entitled to have advance warning that their actions may incur criminal liability is connected to the rule against retrospectivity enshrined in s 26(1) of the New Zealand Bill of Rights Act 1990. In R v Chilton, the Court of Appeal noted that case law interpreting statute is “as much part of the law as the legislation itself”,18 including for the purposes of s 26(1) of NZBORA and s 10A of the Crimes Act 1961 which prohibits the retrospective effect of criminal enactments.19
[47] I therefore allow the appeal on the basis that a purposive interpretation of the amendments supports the Crown’s position. That said, it would be manifestly unjust that Mr Cottle bear the stigma of a conviction. Accordingly, rather than directing a new trial, I exercise my jurisdiction under s 300(1)(e) of the Criminal Procedure Act 2011 by quashing Mr Cottle’s acquittal, entering findings that the charges were proved and discharging the respondent without conviction on the charges, per s 106 of the Sentencing Act 2002.
[48] Finally, and at the risk of belabouring the point, the legislative inconsistencies identified in this judgment should be brought to the attention of those who carry the responsibility for the upcoming changes to the Act. Clearer legislative guidance to
16 A Simester, W Brookbanks and N Boister Principles of Criminal Law (4th ed, Brookers Ltd, Wellington, 2012) at 34. Some footnotes omitted.
17 Joseph Raz The Authority of Law: Essays on Law and Morality (2nd ed, Clarendon Press, Oxford, 1979) at 214–216.
18 R v Chilton [2006] 2 NZLR 341 (CA) at [109].
19 At [104]–[106].
those gun owners holding valid licenses and endorsements as to their responsibilities under the Act would be preferable to the status quo.
Decision
[49]The appeal is allowed. The respondent’s acquittal is quashed.
[50] I find that the charges under appeal were proved but for the reasons set out above the respondent is discharged without conviction.
Harvey J
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