HENRIKSEN v R [2023] NZCA 430

HENRIKSEN v R [2023] NZCA 430 [7 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA477/2012[2023] NZCA 430BETWEEN NOEL BIRKDALE HENRIKSENApplicantAND THE KINGRespondentCourt: Gilbert, Katz and Mallon JJCounsel: D J Allan for ApplicantM J Lillico for RespondentJudgment:(On the papers)7 September 2023 at 2 pmJUDGMENT OF THE COURTThe 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 wassentenced to six years' imprisonment on 13 July 2012. He filed a notice of appealagainst conviction on 6 August 2012, but he later abandoned the appeal, filing a noticeof abandonment on 31 January 2014.[2] Seven and a half years later, on 2 August 2021, Mr Henriksen filed a notice ofapplication for leave to withdraw his notice of abandonment. He passed awaythree weeks later, on 22 August 2021. His estate now applies for continuance of theapplication 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 Adrug 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 manufacturingmethamphetamine (charge 3).[4] Following a trial by jury in February 2012, Mr Henriksen was found guilty ofthese charges.[5] On 13 July 2012, Mr Henriksen was sentenced by Judge Burnett, who was thetrial judge, to six years' imprisonment.1 The Judge was satisfied that Mr Henriksenspent a minimum of $184,000 purchasing 18 sets of Contac NT, containing1620 grams of pseudoephedrine which would yield between 810 and 1215 grams ofmethamphetamine.2 On that basis, the Judge placed Mr Henriksen's offending withinband 4 of this Court's then applicable guideline judgment in R v Fatu and adopted astarting point of 13 years' imprisonment.3 The Judge then allowed a discount ofseven years to take account of an unopposed instrument forfeiture order in respect oftwo properties owned by Mr Henriksen where the offending took place.4Mr Henriksen's interest in these properties was agreed to be $1.2 million.5 The Judgemade an order for the immediate sale of these properties.6[6] On 6 August 2012, Mr Henriksen appealed against his convictions, but notagainst the sentence. He was then represented by Mr Nabney. The grounds of appealwere: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 [2006] 2 NZLR 72 (CA).4 At [12].5 At [9].6 At [12].(a) Trial counsel (Mr Leary, now deceased) failed to adequately representhim 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 Henriksenon 31 January 2014.[8] As noted, the notice of application for leave to withdraw the notice ofabandonment was not filed until over seven years later, on 2 August 2021. The delayis explained in the application by Mr Allan, who took over from Mr Nabney in actingfor Mr Hendriksen:Relevant Backgrounda) Applying R v Cramp NZCA 90, the Notice of Abandonment dated29 January 2014 signed by Mr Henriksen was free and informed.Appellate Counsel, Mr Nabney, diligently investigated the threecompetence of trial counsel grounds of Appeal against Convictionitemised at paragraph 7 of the Notice of Appeal signed byMr Henriksen on 27 July 2012. Mr Nabney's letter of advice dated15 January 2014 set out clear reasons for why he considered that theAppeal 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 applyingto vacate the Notice of Abandonment and, instead, advisedMr Henriksen to file a Petition for the Prerogative of Mercy with theGovernor General pursuant to section 406A of the Crimes Act 1961arguing completely different grounds to those outlined at paragraph 7of the Notice of Appeal signed by Mr Henriksen on 27 July 2012.c) The grounds in the Petition for the Prerogative of Mercy focused onthe Amended Indictment dated 29 September 2011 being bad forduplicity.d) The Governor General declined Mr Henriksen's Petition andrecommended an application to vacate the abandonment of the appealagainst conviction and noted that the Criminal Case ReviewCommission ("CCRC") would take over consideration of Petitions forthe Prerogative of Mercy.e) Present counsel then prepared and filed an application to the CCRCwhich was allocated Te Kahui Ref 0072.f) The CCRC served a letter with a Statement of Reasons on 5 May 2021in which they outlined why they considered that a section 25investigation was not in the interests of justice.g) It was only after meeting with the CCRC, that present counselobtained the trial rulings from the CCRC and realised that the bad forduplicity issue had been the subject of trial rulings. All previous legaladvice had been based on review of Mr Henriksen extensive files.Mr Henriksen himself had not understood that there had beenrepresentative count rulings in the trial, which it now is clear therewere, which the Trial judge was not happy about as they caused theempanelling and commencement of trial to be delayed.h) Present counsel then requested and obtained the Court of Appeal filein pdf form on 29th July 2021.i) The successive decisions of the Governor General and the CCRC leftMr Henriksen with one remaining legal remedy – an application tovacate the notice of abandonment on the basis of that representativerather than individual charges caused Mr Henriksen to suffer amiscarriage of justice (which the late Mr Eb Leary had taken issuewith at trial):[9] The proposed ground of appeal is that the charges were bad for duplicity andthe Judge accordingly erred in declining Mr Henriksen's application for an orderdirecting that separate charges be laid. A miscarriage of justice is said to have occurredfor the following reasons:(a) Charge 1 — the representative charge prevented the jury, as finders offact, from determining the amount of methamphetamine supplied.(b) Charge 2 — the representative charge of manufacture ofmethamphetamine prevented the jury, as finders of fact, from decidingwhether there had been one, two or three concluded purchases ofContac NT.(c) Charge 3 — the framing of the charge prevented the jury, as finders offact, from considering separate verdicts for the two properties wherethe precursor substances were found following execution of the searchwarrants.[10] Mr Allan submits that the Judge's failure to direct separate charges was an errorof law which has had a cascading effect, ultimately resulting in Mr Henriksen's farmproperty being sold. The parties with a financial interest in these properties(the NB Henriksen family trust and Mr Henriksen's former partner, Ms George) didnot oppose forfeiture because the sentence was reduced by seven years on account ofthe forfeiture. However, the family now considers that they were disinherited becausethe property had been lawfully acquired and otherwise would have gone to thebeneficiaries of the trust. Mr Allan acknowledges there are no reputational issuesarising out of the proposed appeal.Legal principles[11] In Ellis v R (Continuance), the Supreme Court provided guidance on theexercise the court's jurisdiction to allow posthumous continuation of appeals.7Continuance will only be granted where there is good reason to allow the appeal toproceed to determination.8 The test is whether continuance would be in the interestsof 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 thereputational 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 isotherwise evasive of appellate review;(ii) a systemic issue related to the administration of justice;(iii) collateral consequences to the family of the deceased or toother interested persons or to the public;(f) whether the nature of the order which could be made by the appellatecourt justifies the expenditure of limited judicial (or court) resourcesto resolve a moot appeal; and7 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.(g) whether continuing the appeal would go beyond the judicial functionof resolving concrete disputes and involve the court in free-standing,legislative-type pronouncements more properly left to the legislatureitself.[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 circumstancesof the particular case.11 Tikanga concepts may be important.12 The minorityconsidered that the public interest in finality in litigation will need to be weighed inthe balance against any personal and public interest in addressing a potentialmiscarriage of justice through the appellate process.13Submissions[13] Applying these criteria, Mr Allan submits that continuation should be grantedin the present case. In summary, he contends:(a) The appeal will proceed in a proper adversarial context because theproposed ground of appeal is confined to an alleged error of law andthe 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 toknow whether the jury's verdict on charge 2 was based on there beingone purchase (1–2 sets of Contac NT), two purchases (1–2 sets plus8 sets) or three purchases (1–2 sets plus 8 sets plus 10 sets).The sentencing process therefore miscarried because Mr Henricksen'sculpability for manufacturing on charge 2 could not be assessed on anextrapolated yield basis without the primary facts being proved beyondreasonable doubt.(c) The legal issue arising on the proposed appeal is of general and publicimportance. It is in the interests of justice for a jury to reach verdicts11 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'Reganand Arnold JJ.13 At [210] per Winkelmann CJ and [236] per Williams J. But see [311] for O'Regan and Arnold JJ'sview.14 Citing R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1.in drug offence prosecutions on a transaction-by-transaction basis,particularly where this can affect whether the sentence should be a shortprison term (under band 1 of Fatu) or a long prison term (under band 4).The draconian forfeiture regime needs to be tempered by a firmapplication of evidence rules to properly particularised chargesrespecting the burden and standard of proof.(d) The collateral consequence for the family is the loss of the lawfullyacquired farm through the forfeiture and sale orders. However,Mr Allan accepts that even if the appeal is allowed, the family's onlyremedy would be to seek an ex gratia payment from the Crown becausethe property was sold many years ago.(e) Assuming leave to continue is granted and leave to withdraw the noticeof abandonment of appeal is also granted, the appeal would take onlyan hour or so to hear.(f) There is no question of this Court being asked to go beyond its normaljudicial 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 wasshortened 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 presentapplication concerns the order for forfeiture. There is no way of testing the adequacyof 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 anex 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 notbeen considered. Applications to continue an extant appeal are rare, but posthumousapplications to continue an application for leave to withdraw a notice of abandonmentof an appeal must be even more rare.[16] Mr Lillico submits that the proposed appeal ground is weak. This Court'sdecision in R v Connelly makes it clear that the judge in a jury trial is effectively the13th fact finder.15 Following a verdict of guilty, the judge is required to reach his orher own view of the facts relevant to sentencing provided this is not inconsistent withthe verdict.16 The Judge's finding as to quantity was made after hearing submissionsfrom counsel based on the evidence adduced at trial. The finding was not inconsistentwith 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 dealof social harm is caused by methamphetamine dealing. The public has an interest inthis prosecution, which appeared to have been finally resolved for a period of morethan seven years before the application to withdraw the notice of abandonment wasfiled.[18] Mr Lillico submits there is no public interest in the grant of continuance for anappeal that will cover well-trodden territory, namely fact-finding for the purpose ofsentencing and the proper framing of charges. This case does not raise any issue ofgeneral or public importance, nor any systemic issues.[19] There is no sufficient justification for the commitment of limited judicial andother public resources to an appeal that is now moot. Mr Lillico says the most theestate can hope for is that a successful outcome on appeal could provide leverage foran ex gratia payment. However, Mr Lillico suggests that this is a highly uncertainresult given that ex gratia payments are made out of goodwill or a sense of moralobligation. It is unclear why the Crown should make a payment out of goodwill to theestate of an admitted methamphetamine manufacturer to "put right" a forfeiture ordermade by consent in circumstances where there is no ability to go behind that consentvia a waiver of privilege and investigation with trial counsel. For these reasons, hesubmits that an appeal is unlikely to achieve anything for the estate.15 R v Connelly [2008] NZCA 550.16 At [14].Assessment[20] It is not contested that Mr Henriksen manufactured methamphetamine,supplied methamphetamine, and possessed precursor substances with the intention ofmanufacturing methamphetamine. There is no concern that justice has miscarried inthe sense that the convictions are unsafe. Mr Henriksen made a free and properlyinformed decision to abandon his appeal against conviction over nine years ago. It ismost unlikely that this Court would grant leave to withdraw the notice of abandonmentof 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 meritsof 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 thepurposes of sentencing. However, it is well established that it is open to the trial judgeto make findings of fact for the purposes of sentencing so long as these findings areconsistent with the jury's verdicts, as was the case here. As noted, the motivation forthe proposed appeal is not the convictions (or the sentence — there is no proposedsentence appeal). Instead, the concern is with the forfeiture order. But this order wasmade by consent following legal advice and was recognised by a seven-year reductionin sentence. The family did not oppose the making of the order at the time. In anycase, the proposed appeal will not engage with the forfeiture order.[22] Given that the offending took place over 14 years ago and the appeal againstconviction was abandoned nine and a half years ago, the public interest in finalityweighs heavily against the grant of this posthumous application. The proposed appealdoes not raise any legal issue of general public importance or any systemic issueregarding the administration of justice. In our assessment there is no sufficientcounterveiling private interest that could justify the commitment of further publicresources to the proposed appeal. In particular, there are no reputational issues at stakeand the prospect of the estate achieving anything in the appellate process appears tobe remote.17 See for example Ellis v R (Continuance), above n 7, at [187] and [201] per Winkelmann CJ.[23] For these reasons, we have reached the clear view that it would not be in theinterests 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