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…

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 1452
Decision Date: 25 June 2020

CaseChat Overview and Summary

In the High Court of New Zealand, Benjamin Timmins filed a Notice of Appeal against a 1996 conviction for possession of a firearm without a licence, which he could not obtain due to the conviction. The court could not locate the file, and the applicant claimed that he had previously appealed the conviction in 2014 but the District Court refused to hear it, advising him instead to accept a police offer of a licence. The court considered the applicant's submissions on the excessive delay in filing the appeal and declined to extend the time for appeal, resulting in the matter not being advanced further in the Court.

The primary legal issue was whether the court should grant leave to appeal out of time, given that the Notice of Appeal was filed more than 22 years after the conviction. The court also had to consider the merits of the applicant's arguments, including entrapment and unlawful search, which went to the admissibility of evidence but not the correctness of the conviction if the evidence were admissible. The court had to balance the relevance of efforts to resolve the issue by other means against the excessive delay and the difficulties of revisiting matters after such a long time.

The court found that the delay was excessive and the explanations did not account for such a long delay. The court was satisfied that a proper opportunity to make submissions had been given and that the matter was not one of complexity, either factual or legal. The court also noted that the arguments raised went to the admissibility of evidence and not the correctness of the conviction if the evidence were admissible. The court found that there was no realistic capacity in the system to test issues such as entrapment and search after that length of time. Therefore, the court declined to extend the time within which to appeal, meaning that the matter could not be advanced further in the Court.

The court ruled that the matter could not be advanced further in the Court, and the status of the criminal conviction remained unchanged. The court did not make any orders regarding damages or quashing of the conviction.

Orders