Van Houten v Police
[2021] NZHC 21
•26 January 2021
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[1] Daniel van Houten’s firearms licence was revoked by Police by notice dated 9 November 2006.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he knew to be revoked) and two charges of unlawful possession of a firearm (being a person whose firearms licence had been revoked).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 of notice of revocation
[7] The rear of the Notice of Revocation of Firearms Licence dated 9 November 2006 contains a statement of service, as follows:
Where served personally This document was served by me by
delivering a copy of the same to the within- named
Daniel Paul VAN HOUTEN
personally at 15B William Street, Whg on the
30 day of December 2006
L Shepherd
Constable at
Mr van Houten’s name and address as well as the date are all handwritten. The serving constable has signed the form at the bottom.
[8] The Police have filed an affidavit of Senior Constable Leon William Shepherd. He says that he is a senior constable stationed at Houhora, in the Far North. In 2006, he was a constable in his second year with the Police, working in the Whangarei District.
[9] He says he cannot independently recall serving Mr van Houten with the Notice of Revocation on 30 December 2006. However, he confirms that it was his handwriting on the statement of service, and his signature. He says that his invariable practice when filling in statements of service was to fill them in immediately after service was effected. He did not fill in statements of service before effecting service, or if an attempt at service had failed. He would not have filled in the part of the statement declaring that he had served Mr van Houten personally, unless he had done so.
[10] He also says that shortly after effecting service, his invariable practice was to give his statement of service to his supervisor, or directly to the District Arms Officer, to file the record. He would not have handed in a filled in and signed statement of service, unless he had effected service. For those reasons, he is confident that he served Mr van Houten with the Notice of Revocation on 30 December 2006.
[11] As part of the Police investigation, he searched for his notebook for 30 December 2006 at work and at home but could not find the notebook. He says that Police policy is for notebooks to be kept for 10 years, after which they may be discarded. He cannot specifically recall discarding the notebook, but he moved from Whangarei to Houhora after 2016 and the notebook was probably discarded at that time.
[12] On the other hand, Mr van Houten is adamant that he was never served with the Notice of Revocation. First, he says he was charged with and convicted of a breach of conditions of supervision for not living at 15B William Street, Whangarei (the address at which he was allegedly served), as directed by the District Court on 14 July 2006. The date of the breach is recorded as 31 January 2007, but he says he had not been living at that address for quite some time and would not have been living there on 30 December 2006. He also says that the statement of service is “unfinished” because Senior Constable Shepherd did not insert the name of the place where he was stationed. He also notes that there is no report, other than the statement of service on the Notice of Revocation itself, acknowledging service of the Notice of Revocation. He believes that if service had taken place, the District Arms Officer would have filed a report of service.
[13] Although Senior Constable Shepherd was unable to locate his notebook from December 2006, Mr van Houten says he first requested his arms file from the Police in 2016, when such material may well have still been available.
[14] Mr van Houten then points to a letter he wrote to the Police on a date after July 2009, in which he stated that “If I’d known it expired in November. I would have blasted up a storm cloud”. He confirms that he would undoubtedly have appealed against the revocation if he had been served with the Notice of Revocation. Finally, Mr van Houten notes his explanation for the purchase of the two firearms set out in the Police summary of facts, which records that “In explanation the defendant stated he was allowed to and was going to have firearms”.
[15] Although Mr van Houten is adamant that he was never served with the Notice of Revocation, I am satisfied on the balance of probabilities that he was served in accordance with the statutory requirement and with the passage of time he has persuaded himself to the contrary. I have regard to the following factors:
(a)Mr van Houten acknowledges that he was served on 19 September 2006 with a Notice of Consideration to Revoke Firearms Licence dated 8 September 2006. Constable Ganley has completed a similar statement of service on the rear of the form.
(b)Mr van Houten also acknowledges that, subsequent to service of the Notice of Consideration to Revoke Firearms Licence, he had a meeting with Senior Sergeant Murray Ray Hodson to discuss the reasons for the proposed revocation. At the conclusion of the meeting, Senior Sergeant Hodson told Mr van Houten that he would then make a decision on revocation.
(c)A statement of service of the Notice of Revocation was completed by Senior Constable Shepherd at the time of service. I accept that it was his invariable practice to complete a statement of service only if he had effected service.
(d)In July 2009, the Police District Arms Officer, Peter Johnston, received a seven-page handwritten letter from Mr van Houten in which he stated, “WHy I wont my gun licinc Back”. This clearly implies that Mr van Houten knew he did not have a firearms licence. This was at a time prior to the Police becoming aware that Mr van Houten had purchased two firearms in 2008 and 2009 using his revoked firearms licence. This offending was only discovered when Mr Johnston was completing annual security inspections for arms dealers in Whangarei on 24 November 2009. In the Arms Dealer’s Register of a shop in Whangarei, Mr Johnston noted that on 2 October 2009 a semi- automatic .308 calibre rifle was sold to Mr van Houten, who provided a firearms licence number T5070291.
(e)The Police also received information from a confidential informant on 6 August 2009 that Mr van Houten had told him that he was getting his firearms licence back as long as he did not have a semi-automatic. Again, this implies that Mr van Houten knew he did not have a firearms licence.
(f)When prosecuted for firearms offences in 2010, Mr van Houten told the pre-sentence report writer that he “generally agreed with the Police Summary of Facts as presented”, which stated that Mr van Houten’s firearms licence had been revoked in 2006.
Police letter of 29 July 2009
[16] In response to the seven-page handwritten letter in which Mr van Houten stated he wanted his licence back, the Police wrote a letter to Mr van Houten dated 29 July 2009. It stated:
Dear Daniel,
Re: Application for Review of Status of Firearms Licence
I have carefully considered your written application for the review of the status of your Firearms Licence which was revoked on the 09 November 2006.
It is my view & opinion that by judging on your comments made, the fact that you persist in coming to the attention of the Police for nuisance and serious allegation matters, your “Fit and Proper” status to hold a firearms licence remains in doubt.
Accordingly, I refuse to allow you to re-apply for a Firearms Licence at this time. Should you remain out of trouble or come to the attention of Police between now & three years hence (29.07.2012) you may re-apply in writing to the District Arms Officer, Whangarei, for a further review.
Your firearms licence, T5070291, will remain revoked and the prohibition of using or owning any type of firearm (including Air Rifles and Pistols) will remain in force. Please be reminded that by using or having possession of any type of firearm, which includes Air-rifles, Air pistols & BB guns, even under the immediate supervision of a current licensed person, renders you liable for a term of 1 year imprisonment or a $4,000.00 fine or both.
There is no right of appeal against this decision.
[17] The officer who signed the letter, Senior Sergeant Hodson, cannot independently recall receiving, considering or signing the letter. The current District Arms Officer, Mr Paul Watson, says that normally the Arms Officer for Northland would draft such a letter before it was signed by a supervisor. In 2009, the District Arms Officer was Peter Johnston. The Police lost Mr van Houten’s arms file in 2017 and, accordingly, are unable to locate documents relevant to the decision-making process.
[18] Mr Watson explains that part of the role of the Arms Office is to give members of the public advice about all aspects of the Arms Act, including the licencing process and the fit and proper test. He says that they often give advice to potential applicants before they make a formal application because such an application takes time and there is some cost involved to the applicant.
[19] The Police submit that the seven-page handwritten letter from Mr van Houten was an informal approach for advice and that, accordingly, the Police letter in response does not contain any decision amenable to review.
[20] Counsel also submits that in 2009 Mr van Houten and/or the Police may have been operating under the false assumption noted by Judge Sharp in Bath v
Commissioner of Police, that a revocation must be “lifted” before any new application for a firearms licence is made: 1
… that police practice that has arisen over possibly decades, in respect to … the “lifting” of revocation status of persons, … does not have the force of law.
[21] On the other hand, Mr van Houten says that the Police letter is in breach of his legal rights. He had never been served with the Notice of Revocation as required by law and, accordingly, the Police had no right to tell him his firearms licence was revoked, as he had never been served. Furthermore, the Police did not have the power or the right to refuse to allow him to reapply for a firearms licence. There is no stand down period. The statement by the Police was therefore misleading and deceitful.
[22] Furthermore, Mr van Houten says that there was a right of appeal under s 62 of the Arms Act against such Police decisions and the Police were wrong to advise him that he had no right of appeal.
[23] I agree with Judge Sharp that the former Police practice regarding the “lifting” of the revocation status of persons does not have the force of law. Accordingly, the supposed imposition of a stand down period before Mr van Houten could re-apply for a firearms licence was ineffective. I accept, however, that this informal practice had some benefit in that persons who had their firearms licence revoked could ascertain the Police attitude to a new application for a licence before time and money was expended in making a formal application.
[24] The process for applying for a firearms licence is outlined by Mr Watson, the Northland District Arms Officer, as follows:
(a)The applicant fills out an Application for a Firearms Licence (available as a download from the Police website or over the counter from any Police Station). The application form requires the applicant to provide two referees to verify his or her suitability to possess and use firearms, the first being a spouse, partner or next of kin, and the second being a person unrelated to the applicant;
(b)The applicant pays a fee of $126.50 at a Post Office;
(c)The applicant has two passport size photographs taken;
1 Bath v Commissioner of Police DC Auckland, CIV-2011-004-977, 15 February 2012 at [12] per Judge Sharp.
(d)The applicant submits the application, fee receipt and photographs to any Police Station;
(e)The application is processed, and the applicant sent a confirmation letter containing a candidate number which the applicant can use to register with the Mountain Safety Council (MSC) to complete a Firearms Safety Course (FSC);
(f)The MSC advise Police when the candidate has passed the FSC;
(g)A New Zealand Police Firearms Licence Vetting Guide is prepared and assigned to a Vetter to complete vetting on the applicant. At a minimum, the referees listed on the application form are interviewed. Further interviews may be required, if other people have access to the applicant’s residence;
(h)The vetting guide is reviewed by an Arms Officer (such as myself), who makes an assessment as to whether the applicant meets the “fit and proper person” test required of a firearms licence holder;
(i)If the applicant meets the requirements, the application is provisionally approved and forwarded to a District Endorser for review;
(j)If the applicant does not meet the requirements, the Arms Officer completes a report to the District Endorser specifying why the application should be refused. If the District Endorser agrees with the Arms Officer’s recommendation, the file is passed to the District Operations manager. The District Operations Manager completes a letter of refusal to be sent to the applicant. The letter sets out reasons for refusal, and advises the applicant of his or her right to appeal to a District Court Judge.
[25] The requirement for applications to be reviewed by a District Endorser only came into effect on 3 March 2020. Otherwise, Mr Watson believes the application process was substantially the same in 2009.
[26] I have earlier found that Mr van Houten was served with a Notice of Revocation of Firearms Licence, so the Police had the right to tell him in the letter dated 29 July 2009 that his firearms licence was revoked. I do agree with Mr van Houten, however, that the Police did not have the power or right to refuse to allow him to re-apply for a firearms licence. I so declare and direct that if Mr van Houten was to apply for a firearms licence in terms of the procedure set out at [24] above, the Police should assess the application on its merits, including making an assessment whether Mr van Houten is a fit and proper person to hold a firearms licence. If the decision is unfavourable to Mr van Houten, then he will have both a right of review
by the Commissioner of Police and a right of appeal to a District Court Judge under s 62 of the Arms Act 1983.2
[27] Mr van Houten does not, however, have a right of appeal now from the Police letter dated 29 July 2009 as it is not an official decision in terms of s 62. Moreover, r 18.4(2)(b) of the District Court Rules 2014 provides that an appeal has to be lodged within 20 working days of the decision appealed against unless special leave is granted. Here the time elapsed since the Police letter is 11 and a half years.
Remand in custody
[28] On 26 November 2009, Mr van Houten 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). On that date, the Police opposed bail on a number of grounds, which are unnecessary to list. The District Court refused bail and Mr van Houten was remanded in custody. On 26 January 2010, Mr van Houten pleaded guilty to the four charges. On 24 March 2010, he was sentenced to 12 months’ supervision with a direction that he surrender the relevant firearms if they remained in his possession. He had spent 120 days in custody between being charged and sentenced.
[29] On the evidence before the Court, Mr van Houten has been unable to prove on the balance of probabilities that he was wrongfully imprisoned for 120 days. The decision to remand him in custody was a judicial decision taken independently by the District Court. Mr van Houten had the opportunity to advance matters which favoured bail. He also had the right to appeal to the High Court against the refusal of bail. He chose not to do so. He also ultimately pleaded guilty to the four charges.
2 There have been substantial changes to the Arms Act, which came into force on 24 December 2020. A new graduated response now means Police will have more options between issuing a licence holder with a warning and undertaking licence revocation. The new process will allow a licence holder to make improvements, so Police do not have to initiate licence revocation as the first available response to non-compliance or poor or unsafe behaviour. The main change to the right of appeal in s 62 is that if a decision is made to refuse a person a firearms licence, that person must first apply to the Commissioner of Police for a review of the decision before they can appeal to the District Court.
[30] Although he alleges in the amended statement of claim that his lawyer either mistakenly or wrongfully entered pleas of guilty on his behalf, Mr van Houten has not waived privilege to enable counsel for the Police to speak to him. Accordingly, this Court cannot go beyond the pleas of guilty entered on his behalf. There is, in any event, no record of Mr van Houten objecting to those pleas when they were entered.
[31]There is, therefore, no basis for the award of any damages.
2010 convictions
[32] Nine and a half years after the sentence of 12 months’ supervision was imposed on him following his pleas of guilty, Mr van Houten appealed against his convictions. In a decision dated 12 December 2019, Muir J dismissed his application for leave to appeal.3 The Judge noted that the pre-sentence report stated that Mr van Houten “generally agreed with the Police summary of facts as presented” and had told the report writer:4
I went and got a gun and then went to get my firearms licence back but they said I couldn’t get it back … I felt hard done by from the cops … I have got a hunting and pest control certificate so I just rocked on up and got some more guns.
[33] The Judge therefore concluded that there was no suggestion that as at February/March 2010 Mr van Houten disputed that:5
(a)he had been served with the revocation notice; or
(b)he had produced his firearms licence post-revocation with the intention of acquiring firearms.
[34] The Judge noted Mr van Houten’s oral explanation that he had pleaded guilty only because he was being held on remand and was being threatened by other inmates but said that he was unable to explain adequately why he did not immediately appeal subsequent to his release on supervision.6
3 Van Houten v New Zealand Police [2019] NZHC 3266.
4 At [9].
5 At [10].
6 At [20].
[35] There is, therefore, no basis for setting aside the 2010 convictions as being in some way flawed.
Interim order
[36] There is accordingly also no basis for an order that Mr van Houten’s firearms licence be retrospectively deemed to have continued in force until he can get it renewed or reinstated.
Result
[37] There is a declaration that the Police did not have the power or right to refuse Mr van Houten to apply for a new firearms licence. I direct that if Mr van Houten was to apply for a new firearms licence in terms of the procedure set out at [24] above, the Police should assess the application on its merits, including making an assessment whether Mr van Houten is a fit and proper person to hold a firearms licence.
[38]Mr van Houten’s application for judicial review is otherwise dismissed.
Woolford J