Timmins v Police

[2020] NZHC 1452

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE

CRI-2020-483-4

[2020] NZHC 1452

BETWEEN

BENJAMIN TIMMINS

Applicant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Counsel:

Applicant in person

Crown Solicitor, Whanganui

Ruling:

25 June 2020

RULING OF SIMON FRANCE J

[1]    Mr Timmins filed a Notice of Appeal in July 2018. It appeared to relate to a conviction entered on 14 June 1996. Registry inquiries seeking to locate the file stalled. Eventually what is believed to be the file number was identified, and a request placed with archives for the file. Unfortunately, it cannot be located. Mr Timmins advises the conviction is for possession of a firearm without a licence. Mr Timmins further advises that, as a consequence, has not been able to obtain a licence.

[2]    Mr Timmins says he did file an appeal in the Whanganui District Court in October 2014. There then followed an appearance on 20 March 2015. Mr Timmins states, however, that when the District Court Judge entered the Court, he immediately advised Mr Timmins he was not hearing the appeal. Rather, the Judge said he was aware that the police had offered him a licence and he should take that offer. In Court at that time the police were represented by Area Commander Mastrovich, who confirmed the Judge’s understanding. For reasons that are not apparent from the present filing, this did not happen.

TIMMINS v NEW ZEALAND POLICE [2020] NZHC 1452 [25 June 2020]

[3]    Mr Timmins says he sought advice on the refusal of the District Court to hear the appeal. He was advised judicial review was the correct procedure but could not afford to instruct counsel. It appears there were then no further court filings until the present Notice of Appeal.

[4]    In the Notice of Appeal Mr Timmins seeks a quashing of his conviction and an award of damages. I have previously advised Mr Timmins in a Minute that I would be treating the Notice of Appeal as an application to appeal the criminal conviction. Any other proceedings should be filed separately and in proper form.

Process

[5]    The obvious initial point is that Mr Timmins’ 2018 filing occurs more than  22 years after his conviction was entered. Even if the relevant date were the District Court filing in October 2014, the delay would be 18 years. By way of Minute I advised Mr Timmins that  I would address first the issue of leave to appeal out of time.      Mr Timmins was invited to file any evidence he wished to explain the delay, and submissions concerning it. Submissions have been filed which contain material that should be the subject of evidence, but I will consider it nevertheless.

[6]    Pursuant to s 328 of the Criminal Procedure Act 2011 I determine that the application for leave to appeal out of time be determined on the papers. I am satisfied that a proper opportunity to make submissions has been given and the matter is not one of complexity, either factual or legal. The Court will not benefit from an oral hearing. I have not sought submissions from the respondent.

Decision

[7]    It seems the original matter concerned Mr Timmins not having the correct type of gun licence. He was initially appropriately licensed but in the early 1990s the law changed and a different form was needed. Mr Timmins applied but it seems, for reasons that are not clear, the new licence was not issued. Mr Timmins says he believed he was entitled to possess his firearms in the intervening period between surrendering his old licence and obtaining a new one.

[8]    As I understand it, the “intervening period” grew quite long since no new licence was issued. The  old one was surrendered in May 1993  and police visited  Mr Timmins’ house in June 1996. His firearms were taken and Mr Timmins charged. He was convicted, although detail of the court process is not provided.

[9]    Arguments Mr Timmins raises are entrapment and, perhaps, illegal search. Concerning entrapment, as I understand it, the argument would be that Mr Timmins was led to believe, or otherwise understood it to be common practice, that pending a new licence it was permissible to maintain possession of the firearms. He also expended money on meeting new security requirements.

[10]   Turning to delay, I focus on the period from the conviction through to the filing of an appeal in October 2014. As regards this latter event, the position, as I understand it, is that the District Court has no record of it happening, but I am prepared to treat October 2014 as the end of the period of delay. In that regard, Mr Timmins has made various submissions about his efforts subsequent to October 2014. I do not need to detail them as the focus is on the preceding 18 years.

[11]   Mr Timmins says that throughout this period following his conviction he was corresponding with the Police over the return of his licence. Mr Timmins also submits he has been stonewalled over the years in his efforts to obtain information from various agencies. Lawyers he contacted saw the matter as too complicated for them, or wished payment beyond Mr Timmins’ means.

[12]   I am satisfied it would not be appropriate to extend the time within which to appeal. I accept efforts to resolve an issue by other means are relevant to whether time should be extended.1 However, the delay is excessive by any measure and the explanations do not account for such a long delay. The difficulties with revisiting matters after this length of time are obvious. The arguments Mr Timmins wishes to make – entrapment and, perhaps, unlawful search – go to the admissibility of evidence but do not contradict the correctness of the conviction if the evidence were admissible. There is no realistic capacity in the system to test issues such as entrapment and search

1      R v Knight [1998] 1 NZLR 583.

after that length of time. There is no evidence they were matters raised at the time, so the lost file is not a cause of the absence of a record in relation to the appeal issues.

[13]   For these reasons I decline to extend the time within which to appeal. This means that matter cannot be advanced further in this Court. As regards the status of the criminal conviction, matters are therefore at an end.

Simon France J

Solicitors:

Crown Solicitor’s Office, Whanganui