Van Houten v Police - [2021] NZHC 21

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-000053

[2021] NZHC 21

UNDER the Judicial Review Procedure Act 2016

IN THE MATTER

of a revocation of firearms licence

BETWEEN

DANIEL PAUL VAN HOUTEN

Applicant

AND

NEW ZEALAND POLICE

First Respondent

WHANGAREI DISTRICT COURT

Second Respondent

Hearing: 10 December 2020

Appearances:

Plaintiff in person

J P Golightly for the First Respondent Appearance of the Second Respondent excused

Judgment:

26 January 2021

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 26 January 2021 at 2:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Marsden Woods Inskip Smith (Office of the Crown Solicitor), Whangarei Copy to: Mr van Houten

VAN HOUTEN v NZ POLICE [2021] NZHC 21 [26 January 2021]

[1] Daniel van Houten’s firearms licence was revoked by Police by notice dated 9 November 2006. Mr van Houten says the notice was ineffective because it was not served on him as required by law.

[2] Mr van Houten subsequently used his firearms licence to purchase two firearms in 2008 and 2009. He was charged with two charges of obtaining by deception (using a firearms licence which he knew to be revoked) and two charges of unlawful possession of a firearm (being a person whose firearms licence had been revoked). After spending time in custody on remand, he pleaded guilty on 26 January 2010. On 24 March 2010, he was sentenced to one year’s supervision.

[3] Mr van Houten now challenges, by way of judicial review, various Police actions in relation to his firearms licence, including the exercise of its statutory powers under the Arms Act 1983.

Amended statement of claim

[4] In an amended statement of claim dated 28 August 2020, Mr van Houten alleges:

(a)He was never served with a notice revoking his firearms licence;

(b)he received a letter from Police dated 29 July 2009 refusing to allow him to reapply for a firearms licence for a period of three years;

(c)he was charged with obtaining by deception and unlawful possession of firearms and held in custody on remand for 120 days;

(d)his lawyer entered pleas of guilty despite Mr van Houten showing him that he had never been served with a notice revoking his firearms licence; and

(e)the District Court was not fully informed and wrongly decided to convict him on the charges on 24 March 2010.

[5]The relief sought by Mr van Houten is as follows:

(a)The notice revoking his firearms licence should be set aside as it was never served on him;

(b)a declaration that the Police letter dated 29 July 2009 breached his legal rights as it denied him a right of appeal;

(c)damages for wrongful imprisonment for 120 days; and

(d)the convictions entered on 24 March 2010 should be set aside.

[6] He also seeks an order that his firearms licence be retrospectively deemed to have continued in force until he can get it renewed or reinstated.

Service…

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: [2021] NZHC 21
Decision Date: 26 January 2021

CaseChat Overview and Summary

Daniel van Houten sought a judicial review of various Police actions related to the revocation of his firearms licence. The key issue was whether the Police had lawfully revoked his licence, and whether there were breaches of his legal rights in the subsequent proceedings. Van Houten argued that he was never served with a notice revoking his firearms licence and that his subsequent use of the licence to purchase firearms led to wrongful charges and imprisonment. The Police maintained that service of the revocation notice was valid, and that van Houten was aware of the revocation.

The Court found that van Houten was indeed served with the revocation notice, based on the statement of service signed by the constable and his practice of only signing such statements upon actual service. The Court also found that the Police did not have the authority to impose a stand-down period before van Houten could reapply for a licence, but there was no basis for damages or setting aside his 2010 convictions as flawed. The Court directed that if van Houten were to reapply for a firearms licence, the Police should assess his application on its merits.

The Court dismissed van Houten's application for judicial review, with the exception of declaring that the Police did not have the power to refuse his reapplication for a firearms licence. This decision clarifies the Police's authority regarding the reapplication process for firearms licences and provides guidance for future applicants in similar situations.

Orders