New Zealand Police v Lincoln [2017] NZDC 15411

Published 18 July 2017

Reserved judgment — obstruction — possession of cannabis — unlawful possession of a shotgun — unlawful possession of a rifle — firearms' licence — armed stop — whether reasonable grounds for search — Search and Surveillance Act 2012, s 18 — Arms Act 1983, s 50 — Evidence Act 2006 s 30 — R v Peta [2007] NZCA 28 — Rimine v R [2010] NZCA 462. The defendant faced four charges: obstruction of a police constable acting in the execution of his duty; possession of cannabis; unlawful possession of a Hatsan shotgun; and unlawful possession of a Panther DPMS rifle. The defendant held a firearms' licence with an E-category endorsement. The defendant had arranged to deliver a firearm to a gunsmith for work. Whilst taking the firearm the defendant needed to use the public bathroom and pay for petrol. The defendant had the firearm unloaded and held it slung over his shoulder whilst doing this. He was seen by members of the public who expressed their concerns to Police. Three searches were then conducted on the defendant and his home where further firearms were found. Some of the questions that the court had to consider were: 1) Has the charge of obstruction been proven beyond reasonable doubt? 2) Is there a case to answer on the charges of the unlawful possession of the rifle and the shotgun? and if so, 3) has it been proven that he was in unlawful possession of them? The court dismissed the obstruction charge due to the evidence of police lacking credibility and reliability; and found that the search, by which evidence of plant material was found in the garage, was unlawful. In relation to the firearms charges the police had to show evidence that proved that each firearm was a Military style semi automatic firearm (MSSA) and if so, the defendant needed to satisfy the court that he was authorised to be in possession of those weapons. The court found that the this search was also unlawful and that the evidence of finding both the shotgun and rifle was improperly obtained. Therefore there is no evidence that the defendant was in possession of either weapon, and no case to answer on either charge. In the alternative that the evidence was legally obtained, the court found that the DPMS rifle and Hatsan shotgun were not MSSAs; the defendant would have had sufficient knowledge for possession; and the endorsement on his licence would have permitted him to have MSSAs. Judgment Date:14 July 2017