Charges dismissed against Timaru man who took gun into public toilets
A man who was seen taking a gun into the Ashburton public toilets has had all charges against him dismissed, after a judge ruled police improperly obtained evidence.
Richard Lincoln, 56, of Timaru, was facing charges of unlawful possession of two restricted firearms, as well as possession of cannabis and obstructing police in the Ashburton District Court on Monday.
He had been arrested in September 2015, but he fought the charges, arguing that police had acted unlawfully when they searched his home and found the guns, and Judge Joanna Maze agreed.
On the day of his arrest, Lincoln had been travelling from Timaru to Christchurch to deliver a Heckler & Koch SL8 firearm to a gunsmith for work.
He stopped twice – for petrol in Timaru and at the Ashburton public toilets – and had the gun slung over his shoulder on both occasions, rather than leaving it in his car. It was not loaded, but members of the public were alarmed and contacted police.
Two charges relating to the SL8 were dismissed at a June court appearance after police offered no evidence. The remaining charges related to guns found during a search of his home later that day.
Police stopped Lincoln's vehicle just north of Dunsandel and alleged he was obstructive, so he was placed under arrest.
Meanwhile, officers entered Lincoln's Timaru home in the first of three searches, breaking a window to gain access.
They were at his home again when Lincoln arrived after being released on bail later that day. During that search they seized a Hatsan shotgun and the DPMS panther rifle, along with a small bag of plant material thought to be cannabis.
That plant material was never analysed, which led to the dismissal of that charge.
Police asserted both weapons were military-style, semi-automatics (MSSAs), but Lincoln argued they were not.
Whether the guns were unlawfully in Lincoln's possession, and whether or not they were MSSAs, did not come into it in the end. It came down to the search and the police's actions that day.
Judge Maze, in her written judgement, ruled the third search of Lincoln's home was unlawful, so both firearms were improperly obtained.
The search was conducted under the Search and Surveillance Act as the police officer did not believe he was mentally fit to be in control of guns. But Lincoln had a mental health assessment before being interviewed and was bailed with a condition he must surrender any guns in his possession to police.
Had there been a case to answer, Judge Maze said she would have been unable to prove beyond reasonable doubt that either gun was a MSSA.
She said if she had found the Hatsan shotgun to be an MSSA, evidence suggested many other owners of similar guns would have been unwittingly outside their licence, despite such firearms commonly being sold as not requiring an E-category licence endorsement.
Some legislative clarification would assist, she said.
Judge Maze also heard accounts from the the three police officers present when Lincoln was arrested and said inconsistencies between two of the officers' accounts made it impossible to rely upon either in relation to the charge of obstruction. That charge was also dismissed.