Unlawful Police case against gun owner shot to pieces

by Jock Anderson

A damning court judgment has left discredited police suffering a crushing and comprehensive defeat after conducting a series of unlawful attacks on a licensed gun owner who knows more about gun law than they do.

All charges against 56-year old licensed firearms owner Richard Lincoln – a man whose 2015 “comfort stop” in Ashburton triggered an armed police swoop involving no fewer than 12 officers – were thrown out after District Court judge Joanna Maze found police evidence was not credible or reliable and that unlawfully obtained evidence was inadmissible.

The case against Mr Lincoln – orchestrated by Ashburton and Timaru police – was riddled with impropriety, inadmissibility, suspicion, hearsay, innuendo, uncertainty, inconsistency, conflict, forgetfulness and an underlying denial by police of Mr Lincoln’s rights as a citizen and licenced gun owner.

The case highlighted how police deliberately and wrongfully tried to justify their actions by claiming Mr Lincoln was somehow mentally unstable or nuts – a flawed “catch-all” excuse which was completely discredited and shot down in Court.  

[Read a full exclusive account of Mr Lincoln’s two-day trial previously published here]

The Charges To Which Mr Lincoln Pleaded Not Guilty

Jim Manning

Intentionally obstructing Constable James Manning in the execution of his duty. Penalty – up to three months jail or a $2,000 fine. Decision – no case to answer, charge dismissed.

Having cannabis plant in his possession. Penalty – up to three months jail or a $500 fine. Decision – no case to answer, charge dismissed.

Unlawfully in possession of a restricted weapon – a Hatsan Escort 12g MSSA shotgun. Penalty – up to three years jail, or a $4,000 fine. Decision – no case to answer, charge dismissed.

Unlawfully in possession of restricted weapon – a DPMS Panther Arms A-15 .223 MSSA semi-automatic rifle. Penalty – up to three years jail, or a $4,000 fine. Decision – no case to answer, charge dismissed.

In an embarrassing turnaround and after being in the prosecution pipeline for 21 months, charges alleging the unlawful carrying and unlawful possession of an MSSA rifle – a Heckler & Koch SL8 semi-automatic rifle – were withdraw by the Crown on the first day of the court hearing on June 19.

This was what kicked off the whole affair but at the last minute police reluctantly conceded Mr Lincoln broke no law in relation to the SL8. The withdrawal of those charges meant a  major hurried re-hash of the remainder of the case – which also drew criticism from Judge Maze.

Who Is Richard Lincoln?

Mr Lincoln is in the final stages of completing a law degree at Canterbury University, with a special interest in firearms law.

He is a licensed firearms owner who holds an E Category endorsement on his normal firearms licence permitting him to own military style semi-automatic firearms.

In 2009/2010 – in what is known as the “thumbhole case” – he successfully challenged a police bid to reclassify some A Category firearms as military-style semi-automatics requiring special E Category licence endorsements, vetting and security.

Mr Lincoln obtained a landmark declaration from Justice Jillian Mallon in the High Court at Palmerston North that his Heckler & Koch SL8 semi-automatic rifle was not a military style semi-automatic rifle (MSSA), as wrongly interpreted by the police, and therefore was not subject to an E Category licence endorsement requirement.

Since then – according to members of the licensed firearms community among his supporters – Mr Lincoln has been targeted by unsuccessful police desperate to get even by pinning some offending on him.

The Judgment In A Nutshell

In a damning judgment released on July 17, Judge Maze, found there was no case for Mr Lincoln to answer on any of the charges because the police case depended essentially on improperly obtained and inadmissible evidence.

[Read the full judgment here…]

Judge Maze rejected police evidence that Mr Lincoln was mentally unstable and therefore not fit and proper to be in possession of firearms – an excuse given by police to conduct three unlawful searches of Mr Lincoln’s home.

Mr Lincoln behaved rationally throughout – which was backed by a video interview at Ashburton police station – but was understandably upset when he discovered police had entered his house several times without his knowledge or consent.

Judge Maze ruled there was no evidence of physical or mental impairment that could justify a police conclusion or “suspicion” that Mr Lincoln lacked the mental capability to properly control firearms in his possession.

Judge Maze said credible and reliable evidence established that Mr Lincoln behaved rationally on the day and there was no evidence of physical or mental impairment.

“All evidence pointed to the reverse,” Judge Maze said.

Rejecting the obstruction charge, Judge Maze described evidence from Senior Constable James Manning in relation to that charge as self-contradictory, contradicted by others, lacking credibility and reliability, inconsistent and incomprehensible.

Judge Maze found evidence from Constable Matthew Savage in relation to the obstruction charge was impossible and contained inherent inconsistencies.

No Reasonable Grounds

Sgt. Nerida Manson

Rejecting the cannabis charge, Judge Maze said a small amount of material found in Mr Lincoln’s garage was not forensically analysed and – even if it was cannabis – it was not proven beyond reasonable doubt it was in his possession.

Judge Maze found Sergeant Gregory Sutherland, without having met Mr Lincoln, did not have reasonable grounds to suspect Mr Lincoln was incapable of having proper control of firearms by virtue of his physical or mental condition, and his search – during which the alleged cannabis was found – was the second unlawful search of Mr Lincoln’s property.

Judge Maze found that Sergeant Sutherland relied entirely on the reported opinions of other officers.

It was the second warrantless search of the same premises on the same day even though nothing compromising had been found in the first search.

In the second unlawful search Sergeant Sutherland said he found and seized an unsecure pump action shotgun in bedding in the master bedroom with four 12g buckshot rounds in the magazine, further ammunition and another magazine – none of which were the subject of charges.

In a third search, this time by Sergeant Nerida Manson and former Constable Kyle Wightman, the Hatsan shotgun and DPMS rifle were found.

But for the finding of the firearms to be admissible the evidence had to establish that Sergeant Manson had reasonable grounds to suspect Mr Lincoln was incapable of proper control over firearms because of his physical or mental impairment.

Judge Maze said Sergeant Manson could only rely on hearsay.

Mr Lincoln Was Entirely Rational

Sergeant Manson relied on her suspicion that Mr Lincoln had a qualifying mental condition but the Judge said Sergeant Manson’s evidence established his thinking and behaviour to be entirely rational while in her presence.

“Her evidence did not identify any aspect of Mr Lincoln’s words or actions which could remotely cause concern he was suffering from a qualifying mental condition,” Judge Maze said.

“I am not satisfied…that Sergeant Manson did in fact suspect Mr Lincoln was then suffering from a qualifying mental condition but, even if she did, I am satisfied Sergeant Manson lacked reasonable grounds for any such suspicion.”

Finding the third search – the Manson search – was unlawful, Judge Maze said it was unreasonable by virtue of the manner in which it occurred, the surrounding constraints placed on Mr Lincoln and the fact it involved a search of his home.

Evidence Improperly Obtained

In rejecting the two firearms charges, Judge Maze said the evidence of finding the Hatsan shotgun and DPMS rifle – which was crucial to those charges – was improperly obtained and therefore no evidence Mr Lincoln was in possession of either firearm.

“The fact that Mr Lincoln seeks damages (a civil action yet to be determined) is not sufficient to conclude the evidence should be admitted because Mr Lincoln has other possibly sufficient remedies available to him.”

“Otherwise all improperly obtained evidence would be admitted, leaving if to a defendant to seek compensation in civil proceedings.”

“That would be to ignore the public interest in promptly recognising the impropriety, and in having an effective and credible system of justice,” the Judge said.

Judge Maze said she was unable to find it proven beyond reasonable doubt that either the DPMS rifle and Hatsan shotgun – which blew up after police armourer Robert Ngamoki squeezed eight short rounds into it and fired it – were military style semi-automatics as defined in the Arms Act.

Police evidence in support of those charges relied on them having magazines capable of holding more than seven rounds, the DPMS had a pistol grip and larger capacity magazines were found nearby.

Police armourer Robert Ngamoki giving evidence in another case

Legal Clarity Suggested

Judge Maze said the shotgun had a magazine into which Mr Ngamoki was able to squeeze, but not discharge, eight rounds.

The judge said it was not proven beyond reasonable doubt that the DPMS rifle’s pistol grip was structurally connected at one or two points and expert evidence on that was evenly balanced, meaning the DPMS rifle may or may not be an MSSA – an outcome she found unsatisfactory.

She found that storing larger magazines and other firearms in the same gun safe with the DPMS rifle, when it was already fitted with a five round magazine, did not mean it had been converted into an MSSA.

Judge Maze said if she had found the Hatsan shotgun, with an extended magazine, and all others like it, was an MSSA, the evidence suggested many owners of similar firearms would be unwittingly outside their licence, without ever having loaded the firearm with more than seven cartridges.

She suggested some “legislation clarification would assist.”

E Cat Covers More Than One MSSA

In a discussion of Mr Lincoln’s E category endorsement on his firearms licence – permitting him to have MSSAs – Judge Maze said wording in the Arms Act suggested, but equivocally, that a separate endorsement was required for each MSSA firearm.

But relying on the Interpretation Act, which says words in the singular include the plural and words in the plural include the singular, Judge Maze said the relevant sections of the Arms Act (s30A and s30B) did not appear to require a separate application for an endorsement for each and every MSSA firearms a person owns.

“I was told nothing of police practice in relation to this. Neither did police produce evidence of Mr Lincoln’s applications for licence or E category endorsement.”

“I must accept then that an endorsement may be sought and (apparently) granted for more than one MSSA.”

Only able to go on Timaru arms officer John Wainwright’s evidence, Judge Maze said she must assume, based on what Mr Wainwright said, that Mr Lincoln’s licence and endorsement permitted him to have more than one MSSA firearm.

“It must therefore follow that Mr Lincoln can point to Mr Wainwright’s evidence as available for proof on balance of probabilities that he was licensed with endorsement under s30B [Arms Act] for MSSA firearms in his possession (if there ever were any).”

Footnote:

Richard Lincoln’s experiences with New Zealand Police are not over.

Significant civil proceedings against the police are in the wings so there will be more coverage of that in time. Mr Lincoln has reserved comment in the meantime.

And while coverage of this chapter comes from the perspective of the licensed firearms community, it is fair to say that sometimes gun owners don’t always help their cause.

Hindsight being a wonderful thing, it would have been more prudent for Mr Lincoln – before he headed off to Christchurch with his SL8 in his car and stopped for petrol and a pee – to have it out of sight in a gun bag or gun case.

This would have lessened public concern, perhaps not even sparked an armed police callout and less likely to have resulted in Court action.

His actions – while lawful – were imprudent.

[In her rejection of all charges, Judge Maze said there was no evidence Mr Lincoln “caused” alarm, although there was evidence two witnesses who called the police were alarmed when they saw him carrying his rifle over his shoulder. Judge Maze said police would inevitably have wanted to make enquiries to satisfy themselves all was in accordance with the law, in the interests of public safety. Referring to the September 2014 double shooting murder at the Ashburton WINZ office, Judge Maze said reports of Mr Lincoln’s actions could therefore reasonably be expected to attract further enquiry from the police.]

But it would also have helped if the police for their part had taken a more reasonable and common sense approach. They quickly knew who they were dealing with. They should have known he was correct in law.

By all means give Mr Lincoln a firm hoozle-up about the public perception around his actions, particularly in Ashburton where the earlier memories of the WINZ shooting murders remain fresh.

But by grabbing the “Let’s Brand Him A Nutter” handbook, over-excited officers kicked off a chain of unlawful police conduct which brought the whole weight of the State down on an innocent man.

And there is no excuse or justification for that.

RAW DATA

Judgment – NZ Police vs Richard Lincoln by Cam Slater on Scribd


Jock Anderson

Jock Anderson has more than 50 years as a national award-winning frontline journalist including former chief reporter of NZ Truth and National Business Review, specialising in courts, crime, business and law-related news.

Now a semi-retired freelancer profiling lawyers for the NZ Law Society, regular INCITE: Politics columnist, regular radio commentator (NewstalkZB and Radio New Zealand) and FaceBook scribe.
 


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