Henriksen v R [2023] NZCA 430 (7 September 2023)

Last Updated: 11 September 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA477/2012 [2023] NZCA 430

	BETWEEN	NOEL BIRKDALE HENRIKSEN Applicant
	AND	THE KING Respondent

Court:	Gilbert, Katz and Mallon JJ
Counsel:	D J Allan for Applicant M J Lillico for Respondent
Judgment: (On the papers)	7 September 2023 at 2 pm

JUDGMENT OF THE COURT

The application for continuance is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

• [1] Mr Henriksen was convicted of serious drug offending in early 2012. He was sentenced to six years’ imprisonment on 13 July 2012. He filed a notice of appeal against conviction on 6 August 2012, but he later abandoned the appeal, filing a notice of abandonment on 31 January 2014.
• [2] Seven and a half years later, on 2 August 2021, Mr Henriksen filed a notice of application for leave to withdraw his notice of abandonment. He passed away three weeks later, on 22 August 2021. His estate now applies for continuance of the application for leave to withdraw the notice of abandonment of appeal.

Background

• [3] Mr Henriksen was charged in the District Court with three charges of Class A drug offending between 1 June and 24 September 2009:

(a) supply of methamphetamine (charge 1, representative).

(b) manufacture of methamphetamine (charge 2, representative); and

(c) possession of precursor substances with the intention of manufacturing methamphetamine (charge 3).

• [4] Following a trial by jury in February 2012, Mr Henriksen was found guilty of these charges.
• [5] On 13 July 2012, Mr Henriksen was sentenced by Judge Burnett, who was the trial judge, to six years’ imprisonment.^[1] The Judge was satisfied that Mr Henriksen spent a minimum of $184,000 purchasing 18 sets of Contac NT, containing 1620 grams of pseudoephedrine which would yield between 810 and 1215 grams of methamphetamine.^[2] On that basis, the Judge placed Mr Henriksen’s offending within band 4 of this Court’s then applicable guideline judgment in R v Fatu and adopted a starting point of 13 years’ imprisonment.^[3] The Judge then allowed a discount of seven years to take account of an unopposed instrument forfeiture order in respect of two properties owned by Mr Henriksen where the offending took place.^[4] Mr Henriksen’s interest in these properties was agreed to be $1.2 million.^[5] The Judge made an order for the immediate sale of these properties.^[6]
• [6] On 6 August 2012, Mr Henriksen appealed against his convictions, but not against the sentence. He was then represented by Mr Nabney. The grounds of appeal were:

(a) Trial counsel (Mr Leary, now deceased) failed to adequately represent him at trial.

(b) Trial counsel failed to put forward his defence as instructed.

(c) A miscarriage of justice occurred as a result.

• [7] Mr Nabney filed a notice of abandonment of appeal on behalf of Mr Henriksen on 31 January 2014.
• [8] As noted, the notice of application for leave to withdraw the notice of abandonment was not filed until over seven years later, on 2 August 2021. The delay is explained in the application by Mr Allan, who took over from Mr Nabney in acting for Mr Hendriksen:

Relevant Background

a) Applying R v Cramp NZCA 90, the Notice of Abandonment dated 29 January 2014 signed by Mr Henriksen was free and informed. Appellate Counsel, Mr Nabney, diligently investigated the three competence of trial counsel grounds of Appeal against Conviction itemised at paragraph 7 of the Notice of Appeal signed by Mr Henriksen on 27 July 2012. Mr Nabney’s letter of advice dated 15 January 2014 set out clear reasons for why he considered that the Appeal against conviction could not succeed on those three grounds. That legal advice was entirely appropriate.

b) To be fair to Mr Henriksen, present counsel did not consider applying to vacate the Notice of Abandonment and, instead, advised Mr Henriksen to file a Petition for the Prerogative of Mercy with the Governor General pursuant to section 406A of the Crimes Act 1961 arguing completely different grounds to those outlined at paragraph 7 of the Notice of Appeal signed by Mr Henriksen on 27 July 2012.

c) The grounds in the Petition for the Prerogative of Mercy focused on the Amended Indictment dated 29 September 2011 being bad for duplicity.

d) The Governor General declined Mr Henriksen's Petition and recommended an application to vacate the abandonment of the appeal against conviction and noted that the Criminal Case Review Commission (“CCRC”) would take over consideration of Petitions for the Prerogative of Mercy.

e) Present counsel then prepared and filed an application to the CCRC which was allocated Te Kahui Ref 0072.

f) The CCRC served a letter with a Statement of Reasons on 5 May 2021 in which they outlined why they considered that a section 25 investigation was not in the interests of justice.

g) It was only after meeting with the CCRC, that present counsel obtained the trial rulings from the CCRC and realised that the bad for duplicity issue had been the subject of trial rulings. All previous legal advice had been based on review of Mr Henriksen extensive files. Mr Henriksen himself had not understood that there had been representative count rulings in the trial, which it now is clear there were, which the Trial judge was not happy about as they caused the empanelling and commencement of trial to be delayed.

h) Present counsel then requested and obtained the Court of Appeal file in pdf form on 29th July 2021.

9. The successive decisions of the Governor General and the CCRC left Mr Henriksen with one remaining legal remedy – an application to vacate the notice of abandonment on the basis of that representative rather than individual charges caused Mr Henriksen to suffer a miscarriage of justice (which the late Mr Eb Leary had taken issue with at trial):

• [9] The proposed ground of appeal is that the charges were bad for duplicity and the Judge accordingly erred in declining Mr Henriksen’s application for an order directing that separate charges be laid. A miscarriage of justice is said to have occurred for the following reasons:

(a) Charge 1 — the representative charge prevented the jury, as finders of fact, from determining the amount of methamphetamine supplied.

(b) Charge 2 — the representative charge of manufacture of methamphetamine prevented the jury, as finders of fact, from deciding whether there had been one, two or three concluded purchases of Contac NT.

(c) Charge 3 — the framing of the charge prevented the jury, as finders of fact, from considering separate verdicts for the two properties where the precursor substances were found following execution of the search warrants.

• [10] Mr Allan submits that the Judge’s failure to direct separate charges was an error of law which has had a cascading effect, ultimately resulting in Mr Henriksen’s farm property being sold. The parties with a financial interest in these properties (the NB Henriksen family trust and Mr Henriksen’s former partner, Ms George) did not oppose forfeiture because the sentence was reduced by seven years on account of the forfeiture. However, the family now considers that they were disinherited because the property had been lawfully acquired and otherwise would have gone to the beneficiaries of the trust. Mr Allan acknowledges there are no reputational issues arising out of the proposed appeal.

Legal principles

• [11] In Ellis v R (Continuance), the Supreme Court provided guidance on the exercise the court’s jurisdiction to allow posthumous continuation of appeals.^[7] Continuance will only be granted where there is good reason to allow the appeal to proceed to determination.^[8] The test is whether continuance would be in the interests of justice.^[9] The majority considered that factors likely to be relevant include:^[10]

(a) whether the appeal will proceed in a proper adversarial context;

(b) the strength of the grounds of the appeal;

(c) the wishes of the appellant and the family of the appellant, and the reputational issues affecting the appellant and their family;

(d) the interests of any victims and their families (an important factor);

(e) any public or private interest in the continuation of the appeal, including:

(i) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review;

(ii) a systemic issue related to the administration of justice;

(iii) collateral consequences to the family of the deceased or to other interested persons or to the public;

(f) whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal; and

(g) whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free-standing, legislative-type pronouncements more properly left to the legislature itself.

• [12] Other factors may be relevant depending on the particular circumstances. The weight to be accorded to any relevant factor will also depend on the circumstances of the particular case.^[11] Tikanga concepts may be important.^[12] The minority considered that the public interest in finality in litigation will need to be weighed in the balance against any personal and public interest in addressing a potential miscarriage of justice through the appellate process.^[13]

Submissions

• [13] Applying these criteria, Mr Allan submits that continuation should be granted in the present case. In summary, he contends:

(a) The appeal will proceed in a proper adversarial context because the proposed ground of appeal is confined to an alleged error of law and the matter can be argued on the basis of the existing case on appeal.

(b) The charges were bad for duplicity.^[14] As a result, it is impossible to know whether the jury’s verdict on charge 2 was based on there being one purchase (1–2 sets of Contac NT), two purchases (1–2 sets plus 8 sets) or three purchases (1–2 sets plus 8 sets plus 10 sets). The sentencing process therefore miscarried because Mr Henricksen’s culpability for manufacturing on charge 2 could not be assessed on an extrapolated yield basis without the primary facts being proved beyond reasonable doubt.

(c) The legal issue arising on the proposed appeal is of general and public importance. It is in the interests of justice for a jury to reach verdicts in drug offence prosecutions on a transaction-by-transaction basis, particularly where this can affect whether the sentence should be a short prison term (under band 1 of Fatu) or a long prison term (under band 4). The draconian forfeiture regime needs to be tempered by a firm application of evidence rules to properly particularised charges respecting the burden and standard of proof.

(d) The collateral consequence for the family is the loss of the lawfully acquired farm through the forfeiture and sale orders. However, Mr Allan accepts that even if the appeal is allowed, the family’s only remedy would be to seek an ex gratia payment from the Crown because the property was sold many years ago.

(e) Assuming leave to continue is granted and leave to withdraw the notice of abandonment of appeal is also granted, the appeal would take only an hour or so to hear.

(f) There is no question of this Court being asked to go beyond its normal judicial function.

• [14] Mr Lillico, for the Crown, submits that the application should be declined. Mr Henriksen did not dispute that he was guilty of manufacturing methamphetamine, only the quantity, in particular, whether it was more than 500 grams. His sentence was shortened by seven years to reflect the forfeiture order, which was made by consent, and Mr Henriksen was released many years ago. The motivation for the present application concerns the order for forfeiture. There is no way of testing the adequacy of the advice given about forfeiture because Mr Henriksen and his trial counsel, Mr Leary, are both deceased. It is unlikely the Crown would agree to make an ex gratia payment to the estate in all the circumstances.
• [15] Unlike Ellis, where leave to appeal had been granted prior to Mr Ellis’ death, here the application for leave to withdraw the notice of abandonment of appeal has not been considered. Applications to continue an extant appeal are rare, but posthumous applications to continue an application for leave to withdraw a notice of abandonment of an appeal must be even more rare.
• [16] Mr Lillico submits that the proposed appeal ground is weak. This Court’s decision in R v Connelly makes it clear that the judge in a jury trial is effectively the 13th fact finder.^[15] Following a verdict of guilty, the judge is required to reach his or her own view of the facts relevant to sentencing provided this is not inconsistent with the verdict.^[16] The Judge’s finding as to quantity was made after hearing submissions from counsel based on the evidence adduced at trial. The finding was not inconsistent with the jury’s verdicts and was open to the Judge.
• [17] It would be wrong to view Mr Henriksen’s offending as victimless; a great deal of social harm is caused by methamphetamine dealing. The public has an interest in this prosecution, which appeared to have been finally resolved for a period of more than seven years before the application to withdraw the notice of abandonment was filed.
• [18] Mr Lillico submits there is no public interest in the grant of continuance for an appeal that will cover well-trodden territory, namely fact-finding for the purpose of sentencing and the proper framing of charges. This case does not raise any issue of general or public importance, nor any systemic issues.
• [19] There is no sufficient justification for the commitment of limited judicial and other public resources to an appeal that is now moot. Mr Lillico says the most the estate can hope for is that a successful outcome on appeal could provide leverage for an ex gratia payment. However, Mr Lillico suggests that this is a highly uncertain result given that ex gratia payments are made out of goodwill or a sense of moral obligation. It is unclear why the Crown should make a payment out of goodwill to the estate of an admitted methamphetamine manufacturer to “put right” a forfeiture order made by consent in circumstances where there is no ability to go behind that consent via a waiver of privilege and investigation with trial counsel. For these reasons, he submits that an appeal is unlikely to achieve anything for the estate.

Assessment

• [20] It is not contested that Mr Henriksen manufactured methamphetamine, supplied methamphetamine, and possessed precursor substances with the intention of manufacturing methamphetamine. There is no concern that justice has miscarried in the sense that the convictions are unsafe. Mr Henriksen made a free and properly informed decision to abandon his appeal against conviction over nine years ago. It is most unlikely that this Court would grant leave to withdraw the notice of abandonment of appeal in all the circumstances. The position may be contrasted with that in Ellis, where leave to appeal had been granted prior to Mr Ellis’ death because of the merits of his appeal and resolution was needed to restore balance and achieve a state of ea.^[17]
• [21] The proposed appeal is primarily directed to the findings as to quantity for the purposes of sentencing. However, it is well established that it is open to the trial judge to make findings of fact for the purposes of sentencing so long as these findings are consistent with the jury’s verdicts, as was the case here. As noted, the motivation for the proposed appeal is not the convictions (or the sentence — there is no proposed sentence appeal). Instead, the concern is with the forfeiture order. But this order was made by consent following legal advice and was recognised by a seven-year reduction in sentence. The family did not oppose the making of the order at the time. In any case, the proposed appeal will not engage with the forfeiture order.
• [22] Given that the offending took place over 14 years ago and the appeal against conviction was abandoned nine and a half years ago, the public interest in finality weighs heavily against the grant of this posthumous application. The proposed appeal does not raise any legal issue of general public importance or any systemic issue regarding the administration of justice. In our assessment there is no sufficient counterveiling private interest that could justify the commitment of further public resources to the proposed appeal. In particular, there are no reputational issues at stake and the prospect of the estate achieving anything in the appellate process appears to be remote.
• [23] For these reasons, we have reached the clear view that it would not be in the interests of justice to grant the application.

Result

• [24] The application for continuance is declined.

Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] R v Henriksen DC Hamilton CRI-2009-075-1023, 13 July 2012.

^[2] At [5]–[7].

^[3] At [7] and [9] applying R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[4] At [12].

^[5] At [9].

^[6] At [12].

^[7] Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.

^[8] At [52] per Glazebrook J, [214]–[215] per Winkelmann CJ, [236] per Williams J and [294] per O’Regan and Arnold JJ.

^[9] At [48] and [57] per Glazebrook J, [152] per Winkelmann CJ, [233] per Williams J and [294] per O’Regan and Arnold JJ.

^[10] At [57] per Glazebrook J and [278] and [292]–[293] per O’Regan and Arnold JJ.

^[11] At [58] per Glazebrook J and [278] per O’Regan and Arnold JJ.

^[12] At [144] per Glazebrook J, [210] per Winkelmann CJ, [256] per Williams J and [315] per O’Regan and Arnold JJ.

^[13] At [210] per Winkelmann CJ and [236] per Williams J. But see [311] for O’Regan and Arnold JJ’s view.

^[14] Citing R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1.

^[15] R v Connelly [2008] NZCA 550.

^[16] At [14].

^[17] See for example Ellis v R (Continuance), above n 7, at [187] and [201] per Winkelmann CJ.