TIMMINS v NEW ZEALAND POLICE [2020] NZHC 1452

TIMMINS v NEW ZEALAND POLICE [2020] NZHC 1452 [25 June 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGANUI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGANUI ROHECRI-2020-483-4[2020] NZHC 1452BETWEEN BENJAMIN TIMMINSApplicantAND NEW ZEALAND POLICERespondentOn the papersCounsel: Applicant in personCrown Solicitor, WhanganuiRuling: 25 June 2020RULING OF SIMON FRANCE J[1] Mr Timmins filed a Notice of Appeal in July 2018. It appeared to relate to aconviction entered on 14 June 1996. Registry inquiries seeking to locate the filestalled. Eventually what is believed to be the file number was identified, and a requestplaced with archives for the file. Unfortunately, it cannot be located. Mr Timminsadvises the conviction is for possession of a firearm without a licence. Mr Timminsfurther 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 inOctober 2014. There then followed an appearance on 20 March 2015. Mr Timminsstates, however, that when the District Court Judge entered the Court, he immediatelyadvised Mr Timmins he was not hearing the appeal. Rather, the Judge said he wasaware that the police had offered him a licence and he should take that offer. In Courtat that time the police were represented by Area Commander Mastrovich, whoconfirmed the Judge's understanding. For reasons that are not apparent from thepresent filing, this did not happen.[3] Mr Timmins says he sought advice on the refusal of the District Court to hearthe appeal. He was advised judicial review was the correct procedure but could notafford to instruct counsel. It appears there were then no further court filings until thepresent Notice of Appeal.[4] In the Notice of Appeal Mr Timmins seeks a quashing of his conviction and anaward of damages. I have previously advised Mr Timmins in a Minute that I wouldbe 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 than22 years after his conviction was entered. Even if the relevant date were the DistrictCourt filing in October 2014, the delay would be 18 years. By way of Minute I advisedMr 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, andsubmissions concerning it. Submissions have been filed which contain material thatshould 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 theapplication for leave to appeal out of time be determined on the papers. I am satisfiedthat a proper opportunity to make submissions has been given and the matter is notone of complexity, either factual or legal. The Court will not benefit from an oralhearing. I have not sought submissions from the respondent.Decision[7] It seems the original matter concerned Mr Timmins not having the correct typeof gun licence. He was initially appropriately licensed but in the early 1990s the lawchanged and a different form was needed. Mr Timmins applied but it seems, forreasons that are not clear, the new licence was not issued. Mr Timmins says hebelieved he was entitled to possess his firearms in the intervening period betweensurrendering his old licence and obtaining a new one.[8] As I understand it, the "intervening period" grew quite long since no newlicence was issued. The old one was surrendered in May 1993 and police visitedMr 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 Timminswas led to believe, or otherwise understood it to be common practice, that pending anew licence it was permissible to maintain possession of the firearms. He alsoexpended money on meeting new security requirements.[10] Turning to delay, I focus on the period from the conviction through to the filingof an appeal in October 2014. As regards this latter event, the position, as I understandit, is that the District Court has no record of it happening, but I am prepared to treatOctober 2014 as the end of the period of delay. In that regard, Mr Timmins has madevarious submissions about his efforts subsequent to October 2014. I do not need todetail them as the focus is on the preceding 18 years.[11] Mr Timmins says that throughout this period following his conviction he wascorresponding with the Police over the return of his licence. Mr Timmins also submitshe has been stonewalled over the years in his efforts to obtain information from variousagencies. Lawyers he contacted saw the matter as too complicated for them, or wishedpayment beyond Mr Timmins' means.[12] I am satisfied it would not be appropriate to extend the time within which toappeal. I accept efforts to resolve an issue by other means are relevant to whether timeshould be extended.1 However, the delay is excessive by any measure and theexplanations do not account for such a long delay. The difficulties with revisitingmatters after this length of time are obvious. The arguments Mr Timmins wishes tomake – entrapment and, perhaps, unlawful search – go to the admissibility of evidencebut 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 search1 R v Knight [1998] 1 NZLR 583.after that length of time. There is no evidence they were matters raised at the time, sothe 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. Thismeans that matter cannot be advanced further in this Court. As regards the status ofthe criminal conviction, matters are therefore at an end._____________________Simon France JSolicitors:Crown Solicitor's Office, Whanganui