BENJAMIN RICHARD HENDERSON AND THE KING
[2025] NZCA 147
•7 May 2025 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA482/2024 |
| BETWEEN | BENJAMIN RICHARD HENDERSON |
| AND | THE KING |
| Hearing: | 24 March 2025 |
Court: | Palmer, Brewer and Gault JJ |
Counsel: | R J T George for Appellant |
Judgment: | 7 May 2025 at 10 am |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Palmer J)
Summary
Mr Benjamin Henderson was released on parole subject to a drug and alcohol condition. He provided a false urine sample for a drug test. He pleaded guilty to a charge of failing to provide a valid urine sample under s 71A of the Parole Act 2002 and was convicted and discharged. He then pleaded guilty to, and was convicted of, a further charge of attempting to pervert the course of justice, under s 117(e) of the Crimes Act 1961. He appeals the latter conviction on two grounds: that he is being punished twice for the same thing because the Judge erred in deciding there was no common punishable act between the two charges; and that the offending was not an attempt to pervert “the course of justice”.[1]
[1]R v Henderson [2024] NZDC 12998 [judgment under appeal].
We dismiss the appeal. First, Mr Henderson’s failure to provide a sample at all constituted the offence under the Parole Act. His provision of a false urine sample constituted the offence under the Crimes Act. They are not common punishable acts or omissions. Second, Mr Henderson’s provision of the false sample had a tendency to deflect or adversely affect a future investigation that would inform the Parole board as to whether Mr Henderson should be recalled to prison. That is capable of constituting an action that perverts the course of justice.
What happened?
The sample
In May 2020, Mr Henderson was convicted of dishonesty, firearm and drug offences and sentenced to imprisonment for six years and five months.[2] On 22 September 2021, he was released on parole subject to conditions that he “not possess or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed to [him] by a health [p]rofessional” and that he “attend an alcohol and drug assessment”.
[2]R v Henderson [2020] NZDC 7504 at [16].
Mr Henderson failed to attend five appointments for a drug test. On 26 September 2023, he attended an appointment but was unable to provide a urine sample after three attempts. On 29 September 2023, he was warned by Community Corrections of the consequences of non-compliance with the drug testing requirements. On 9 October 2023, he attended a further appointment and provided a false urine sample. Mr Henderson was recalled to prison for breaching his parole release conditions and posing an undue risk to the safety of the community.
The Parole Act charge
On 19 October 2023, Ara Poutama Aotearoa | the Department of Corrections (Corrections) charged Mr Henderson under s 71A of the Parole Act, which states:
71AOffences related to drug or alcohol conditions
(1)An offender on parole, or released under section 17 at the release date of a long-term sentence, with a drug or alcohol condition commits an offence if the offender—
(a)refuses or fails, without reasonable excuse,—
(i)to undergo a testing procedure when required to do so under sections 16B(2) (a) and 16D; or
(ii)to submit to continuous monitoring when required to do so under section 16B(2) (b); or
(iii)to comply with instructions specified in a notice given under section 16B(2) (b) are reasonably necessary for the effective administration of the continuous monitoring; or
(iv)to accompany an authorised person, when required to do so under section 16D(4), to a place where it is likely that it will be reasonably practicable for the offender to undergo testing; or
(v)to contact a specified automated system when required to do so under section 16B(2) (c); or
(vi)to report, at any time or times when required to do so under section 16D(5), to a specified testing facility to undergo testing; or
(vii)to undergo a testing procedure when required to do so under sections 16B(2) (c) and 16D; or
(b)does anything with the intention of diluting or contaminating a bodily sample required under section 16B(2) (a) or (c) for the purposes of a prescribed testing procedure; or
…
The charging document does not state which particular provision of s 71A constituted the offence at issue but said that Mr Henderson “breaches a condition of their release by failing to comply with alcohol and drug testing requirements, in that they failed to provide a valid urine sample”. The summary of facts stated:
On 9 October 2023, Mr Henderson was instructed to attend an alcohol and drug test at [The Drug Detection Agency], 5 Outlook Place, Harewood, Christchurch. Mr Henderson attended his appointment.
On 13 October 2023 the test results were returned to Community Corrections via email. The results of this test were returned as follows; [i]nconsistent with human urine - this sample has failed the human urine sample integrity tests within the laboratory. Community Corrections have had confirmation from the toxicologist at Hill Labs, and the sample that Mr Henderson provided was in fact synthetic urine, very closely related to the brand “Bulletproof X2”.
Mr Henderson has therefore breached, without a reasonable excuse, the condition of his Parole order; in that he has failed to produce a valid urine sample for his drug test.
On 10 November 2023, on the basis of that summary of facts, Mr Henderson pleaded guilty and was convicted and discharged.
The Crimes Act charge
On 3 November 2023, the New Zealand Police | Ngā Pirihimana o Aotearoa charged Mr Henderson with attempting to pervert the course of justice under s 117(e) of the Crimes Act:
117Corrupting juries and witnesses
Every one is liable to imprisonment for a term not exceeding 7 years who—
…
(e)wilfully attempts in any other way to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.
Mr Henderson was charged with committing the offence “by providing a false urine sample when required to under a Parole Act 2002 special release condition”. The police summary of facts states, relevantly, that “[t]he analysis of the defendant’s sample returned a result of ‘inconsistent with human urine’”. The Crown later took over the prosecution.
Mr Henderson entered a special plea of previous conviction, arguing the Crown was precluded from proceeding with the charge because of his conviction on the Parole Act charge. A further issue was subsequently identified by Judge Gilbert, of whether there was a “course of justice” to be perverted,[3] in respect of which Mr Henderson applied to dismiss the charge under s 147 of the Criminal Procedure Act 2011 (CPA).
[3]R v Henderson DC Christchurch CRI-2023-009-7388, 20 February 2024 (Minute of Judge Gilbert).
On 10 June 2024, in a careful and comprehensive pre-trial judgment in the District Court that is explored further below, Judge Crosbie decided the two issues. He concluded that the special plea was not available to Mr Henderson and there was a case to answer because it is arguable that there was a “course of justice” in the circumstances.[4]
[4]Judgment under appeal, above n 1, at [87]–[88].
On the basis of that judgment, on 10 July 2024, before his jury trial, Mr Henderson pleaded guilty to, and was convicted of, attempting the pervert the course of justice.[5] He is on bail and awaiting sentence. He appeals on the two issues decided by Judge Crosbie in the District Court. Mr Henderson’s guilty plea appears to be explicitly on the basis that the issues now on appeal would be the subject of appeal. No issue was taken with this course. This Court has previously recognised it to be the proper and pragmatic approach because there is no direct appeal route against refusals to dismiss charges under s 147.[6] Accordingly we do not consider the implications of the guilty plea.
The appeal
[5]R v Henderson DC Christchurch CRI-2023-009-7388, 10 July 2024 (Minute of Judge Crosbie).
[6]See for example: George v R [2022] NZCA 242.
Under s 232(2)(c) of the CPA we must allow the appeal if we are satisfied that, relevantly, a miscarriage of justice has occurred for any reason. Otherwise, we must dismiss the appeal.[7] Under s 232(4), a miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk the outcome was affected or the trial was unfair or a nullity. Trial includes “a proceeding in which the appellant pleaded guilty”.[8] Following a guilty plea, this Court may allow an appeal against conviction if, on the admitted facts, “the appellant could not in law have been convicted of the offence charged”.[9]
Issue one: were the acts or omissions substantially the same?
Law of special pleas
[7]Criminal Procedure Act 2011, s 232(3).
[8]Section 232(5).
[9]R v Le Page [2005] 2 NZLR 845 (CA) at [18].
Section 26(2) of the New Zealand Bill of Rights Act 1990 affirms that:
26 Retroactive penalties and double jeopardy
…
(2)No one who has been finally acquitted or convicted of, or pardoned for, an offence shall be tried or punished for it again.
Section 10 of the Crimes Act expresses this by providing:
10Offence under more than 1 enactment
(1)Where an act or omission constitutes an offence under this Act and under any other Act, the offender may be prosecuted and punished either under this Act or under that other Act.
…
(4)No one is liable to be punished twice in respect of the same offence.
Section 46 of the CPA provides for a procedure for a defendant to enter a special plea of previous conviction, relevantly:
46 Previous conviction
(1)If a plea of previous conviction is entered in relation to a charge, the court must dismiss the charge under section 147 if the court is satisfied that the defendant has been convicted of—
(a)the same offence as the offence currently charged, arising from the same facts; or
(b)any other offence arising from those facts.
…
In August 2023, in Mitchell v New Zealand Police, the Supreme Court issued the leading decision on s 46 of the CPA.[10] The Court surveyed the relevant history and case law, noting that neither the Crimes Act nor the CPA displaced the courts’ inherent jurisdiction to correct abuse of process.[11] It held:[12]
[64] What s 46(1)(b) of the CPA requires is an examination as to whether the facts that make the second charge punishable are substantially the same as for the first. Of course the elements of the charges may in one sense be expressed as “facts” constituting the common punishable act. But that is not the focus under the CPA. The focus is whether the physical acts committed (or omitted) by the defendant, which render them liable to punishment under each charge, are substantially the same.[13] At its simplest, dates may differ and there may be wholly separate acts in time. But acts obviously can occur simultaneously and give rise to unobjectionably different charges, as the obiter example given in O’Reilly — of an act of driving infringing both warrant and registration requirements — shows.[14]
[10]Mitchell v New Zealand Police [2023] NZSC 104, [2023] 1 NZLR 238.
[11]At [50].
[12]Footnotes in original.
[13]It is unnecessary to decide the point in this appeal, but we consider the approach taken in Rangitonga v Parker [2016] NZCA 166, [2018] 2 NZLR 796, focusing on the physical acts (rather than mental elements) comprising the two charges, is correct. To require commonality also of facts which are mental elements would be to under-protect defendants from double punishment. Mental elements may still serve some relevance, as Filitonga v R [2017] NZCA 492, [2017] NZAR 1667 demonstrates: see Mitchell v New Zealand Police, above n 10, at [57]. In that case both knowledge and recklessness were common to the two charges, and their commonality served to reinforce the conclusion that the two charges involved a common punishable act — having sex with the victim while being HIV-positive. In other cases, such as murder vs manslaughter, or injuring with intent to injure vs intent to cause grievous bodily harm, the mental elements differ only in degree and a conviction may be entered on one charge only where the physical acts are the same. See, as to that, R v Lee [1973] 1 NZLR 13 (CA) at 17.
[14]O’Reilly v Chief Executive of the Department of Corrections [2018] NZCA 313, [2018] NZAR 1327 at [18]. Likewise, for instance, deliberate detonation of an explosive device that kills two people simultaneously gives rise to two convictions for murder, the factual difference lying in the identity of the victim in each charge.
In that case, the Court was comparing a conviction for driving with excess breath alcohol with a charge of driving contrary to a zero alcohol licence. The Court held there was sufficient difference between the common punishable acts of the two offences to clearly displace the special plea: the offender drove with a breath alcohol level above the legal limit; and he held a zero alcohol licence while he drove with breath containing alcohol.[15]
Judgment under appeal
[15]Mitchell v Police, above n 10, at [66] and [68].
Here, the Judge relied on Mitchell v New Zealand Police and other authorities in holding:[16]
[34] Examining the common punishable act is a workable entry threshold (as directed in Rangitonga). I do not accept the defence submission that this was the provision of a false sample. The key is contained in the particulars of both charges — which is the distinction noted by the Crown — the Parole Act charge addresses a failure to provide, while the Crimes Act charge deals with the provision of a false urine sample. These are important distinctions. The former involves a decision not to comply, while the latter was a deliberate action to avoid a legal consequence. The provision of a false sample is not a fact necessary for the Parole Act charge, however it is essential for the Crimes Act charge. Accordingly, in my assessment the two “actions” are not a common punishable act.
[35] Further, the punishable fact in the current charge is the subterfuge of providing a false sample, the effect being to pervert an alleged course of justice. That fact is not substantially the same as the punishable act for breaching a parole condition. That condition was breached by the fact that Mr Henderson omitted to provide a valid sample as required.
[36] Accordingly, I consider that the two offences do not arise from the same facts and find that the special plea is not available to Mr Henderson.
Submissions
[16]Judgment under appeal, above n 1 (emphasis in original).
Mr George, for Mr Henderson, submits that neither the charging document nor the summary of facts stipulated the particular offence provision within s 71A of the Parole Act. The Judge was wrong to define the punishable act for the Parole Act charge as “[o]mitting to provide a valid sample as required”. That is not an offence explicitly captured by s 71A. Rather, the offending was captured by, and is consistent with, s 71A(1)(b). There are no particulars in the summary of facts indicating that Mr Henderson failed to undergo the testing procedure specified by the Chief Executive of Corrections under s 74A(1)(a) of the Parole Act. There is a hole in the evidence as to whether he provided a sample. There are two possible inferences — that he filled the receptacle solely with synthetic urine, or that he otherwise diluted a sample of his urine — so the inference most favourable to Mr Henderson should be preferred. The punishable act was that Mr Henderson provided a false urine sample contaminated with synthetic urine. That is identical to the Crimes Act offence, so the special plea is available.
Mr Harvey, for the Crown, submits the two offences criminalise different conduct: breaching the release conditions by failing to provide a sample; and attempting to defeat the course of justice. Section 71A(1)(a) and (b) differ. It is clear from the wording of the Parole Act charge that the offence was failing to undergo a testing procedure under s 71A(1)(a)(i). While there were common facts, the core punishable acts, of failing to undergo the testing procedure and attempting to cheat the testing process, were distinct. The Parole Act charge addresses a breach of Mr Henderson’s obligations on parole. The Crimes Act charge addresses the preservation of the integrity of the judicial process. So the special plea is not available.
Not substantially the same punishable acts or omissions
Mr Henderson was charged under the Parole Act with “failing to comply with alcohol and drug testing requirements”. Corrections’ summary of facts for the Crimes Act charge, on the basis of which Mr Henderson pleaded guilty, states that the sample he provided was “inconsistent with human urine” and “was in fact synthetic urine”. The allegation was that there was no urine at all, not that it was diluted or contaminated. As a consequence the allegation in the summary of facts was that Mr Henderson “failed to provide a valid urine sample for his drug test”.
We accept the Crown’s submission that the Parole Act charge corresponds with the wording of s 71A(1)(a)(i) which requires that the offender “fails … to undergo a testing procedure when required to do so”. The allegation was that Mr Henderson did not undergo the testing procedure and did not provide a urine sample. There is no support in the charging document or the summary of facts for Mr Henderson being alleged to have contaminated or diluted the sample with synthetic urine. He was alleged not to have provided urine at all. That is the basis on which he pleaded guilty to the charge. It is also the understanding revealed by Mr Henderson’s own wording of his special plea, that he “did not provide a genuine sample and instead substituted a form of synthetic urine”.
Judge Crosbie was correct that this offence involves a different punishable act than the offence of perverting the course of justice. Mr Henderson’s failure to provide a sample at all constituted the offence under s 71A(1)(a)(i) of the Parole Act. His act of “providing a false urine sample” constituted the offence under s 117(e) of the Crimes Act. There was not one act or omission which constituted an offence under both Acts, as required by s 10 of the Crimes Act. The acts that make the second charge punishable are not substantially the same as the omission that makes the first; they are not common punishable acts or omissions and do not arise from the same facts, as required by s 46 of the CPA. The special plea was not available to Mr Henderson.
This ground of appeal fails.
Issue two: did Mr Henderson attempt to pervert a “course of justice”?
Law of perverting the course of justice
The “course of justice” is not statutorily defined and this Court has observed the concept “may not be suited to a precise definition”.[17] But it was clearly established by this Court in 1996, in Machirus v R, that the proceedings of the Parole Board, regarding how much more time an offender is to spend in prison, after they become eligible for parole, are part of a course of justice for the purposes of s 117(e) of the Crimes Act, which should properly be given a broad interpretation.[18]
[17]R v M P P [2017] NZCA 314, (2017) 28 CRNZ 204 at [29].
[18]R v Machirus [1996] 3 NZLR 404 (CA) at 411–412.
There is also authority about the extent to which acts undertaken prior to a proceeding or investigation may attempt to pervert a course of justice:
(a)In 2010, in McMahon v R, this Court examined previous authorities, particularly the decisions of the High Court of Australia in R v Rogerson in 1992 and of this Court in R v Meyrick in 2005:[19]
[19]McMahon v R [2009] NZCA 472 (footnotes omitted). See also R v Rogerson (1992) 174 CLR 268; and R v Meyrick CA 513/04, 14 June 2005.
[87] The following propositions emerge from the case law:
(a) The object of the offence of attempting to obstruct or pervert the course of justice is to protect the process and procedures of the courts (and other tribunals).
(b) It is not necessary to prove that the course of justice was in fact perverted or obstructed. It is merely necessary to prove that the act had a tendency to do so and that the accused intended to pervert the course of justice (ie court or tribunal proceedings).
(c) It is not necessary for court (or tribunal) proceedings to have been actually instituted. It suffices that there is an act which has a tendency to prevent or obstruct a prosecution which an accused contemplated might follow with an intention on the part of the accused to pervert the course of justice.
(d) The course of justice has begun at the time at which an arrest warrant is issued. Thus, an attempt to interfere with the execution of an arrest warrant, with the knowledge that such a document has been invoked by the jurisdiction of a court, will fall within the scope of the offence.
(e) Police investigations in themselves do not form part of the course of justice. However, an act which has a tendency to deflect the police from prosecuting a criminal offence or adducing evidence of the true facts is an act which tends to pervert the course of justice if undertaken with this purpose in mind.
(f) The fact that an accused may not have been convicted on an underlying charge is not relevant to a charge under s 117(e). Neither is the fact that a person assisting an accused (or interfering with evidence) believes an accused to be innocent. The courts have the responsibility for judging the case and not the accused or any person assisting the accused.
(b)In 2011, relying on the same authorities in R v Kong, this Court held that acts done during preliminary inquiries undertaken by the Health and Disability Commissioner, as well as subsequent investigation of a complaint, were acts that attempted to pervert the course of justice.[20]
(c)In 2014, in Dutt v R, this Court considered an offender having his wife attempt to withdraw a complaint against him and then make a declaration stating that the complaint was false, prior to a police investigation, were acts that attempted to pervert the course of justice.[21] The Court accepted that the offence “may be committed where an offender takes steps to adversely affect criminal proceedings that he or she contemplates may follow”.[22]
(d)In 2017, in R v M P P, this Court considered a case where defendants were alleged to have forced another to enter an arrangement whereby formal criminal complaints of indecent assault would not be made.[23] Contrary to the other cases considered above, there was no evidence that the complaints would have otherwise come to the attention of an investigative body. In those circumstances, the Court, wary of criminalising the non-reporting of potential offending within a family context, held that an investigation must be “inevitable” or “sure to follow”.[24]
Judgment under appeal
[20]R v Kong [2011] NZCA 537 at [47].
[21]Dutt v R [2014] NZCA 106.
[22]At [10], citing McMahon v R, above n 19, at [47]; R v Rogerson, above n 19; and R v Meyrick, above n 19, at [42].
[23]R v M P P, above n 17, at [20].
[24]At [36]–[37].
Here, the Judge traversed the nature of parole, of a recall application, and the role of the Parole Board,[25] holding:
[67] In my assessment, it follows from the above that:
(a) the Parole Board effectively has a continuing supervisory role in relation to any offender released [on] parole; and
(b) that any offender on [p]arole is amenable to recall and, in the case of interim recall, is subject to immediate recall (without notice) if satisfied, inter alia, that the offender poses an undue risk to the safety of the community or to any person or class of persons.
[25]Judgment under appeal, above n 1, at [55]–[66].
The Judge noted that this Court in R v Machirus held that the course of justice included the Parole Board’s consideration of whether to grant an offender parole.[26] Consideration of an application for recall of an offender would constitute “the course of justice” for the purposes of the Crimes Act offence and taking steps to adversely affect proceedings that an offender contemplates may follow amounts to an attempt to pervert the course of justice.[27] Mr Henderson was plainly aware of enforcement of a breach of his obligation or the possibility of an application for his recall if he failed to comply.[28] The actions he took to prevent the statutory consequences of the administration of a sentence could amount to perverting the course of justice.[29]
Submissions
[26]At [72].
[27]Judgment under appeal, above n 1, at [76]–[80], citing R v Machirus, above n 18, at 411; and Dutt v R, above n 21, at [10].
[28]Judgment under appeal, above n 1, at [79].
[29]At [80] and [84].
Mr George submits the case law indicates an offender must have intended to obstruct or pervert the prosecution.[30] When the act alleged to have perverted the course of justice was carried out, judicial or quasi-judicial proceedings must at least have been contemplated. There must be an event which starts an investigation into wrong-doing and then a subsequent act which seeks to pervert that investigation. But there was no investigation or quasi-judicial proceeding at the time Mr Henderson provided the sample, unlike in Kong. And an application by Corrections was required for Mr Henderson to be recalled from parole, which was not a forgone conclusion. So no course of justice existed when Mr Henderson provided the sample, and the charge of perverting the course of justice should have been dismissed under s 147 of the CPA. The Judge’s finding to the contrary was inconsistent with Parliament’s intent to provide a comprehensive response to drug and alcohol addiction. Otherwise, given the existence of s 117(e) of the Crimes Act, s 71A of the Parole Act is rendered a useless provision.
[30]Citing McMahon v R, above n 19, at [55], applying R v Rogerson, above n 19; and R v Meyrick, above n 19. He also refers to Tourni v R [2010] NSWCCA 317.
Mr Harvey submits that Mr Henderson attempted to pervert the terms of his prison sentence and the special release conditions imposed by the Parole Board which clearly falls within the “course of justice” for the purposes of this offence, as intended by Parliament. He was positively warned of the consequences of non-compliance with the testing regime. His actions were aimed at defeating the inevitable investigation into and sanction of his potential drug use which could result in his return to custody. Based on the case law, it is sufficient for an offender to foresee that matters may come before a court or other tribunal and to take actions having a tendency to prevent or obstruct a prosecution which an offender contemplates might follow, with the intention to pervert the course of justice.[31] This is consistent with Parliament’s intent of requiring drug testing to manage the risk posed by offenders to the community and to prevent re-offending.
The “course of justice”
[31]McMahon v R, above n 19, at [87(c)].
The Parole Board’s consideration of decisions affecting the length of imprisonment of an offender constitutes the course of justice, in line with Machirus. It may also be that a process of monitoring compliance with conditions imposed by the Parole Board itself constitutes a course of justice. But that point was not addressed by counsel so we do not address it.
Mr George argues there must be an event which starts an investigation and then a subsequent act which seeks to pervert that investigation, whereas here there was no investigation contemplated when Mr Henderson provided the sample. In essence, as with the first issue treated above, this argument collapses the omission of not providing the sample with the act of providing a false sample.
Following six failures to provide a urine sample, Mr Henderson was put directly on notice of the need to do so through a formal non‑compliance interview with his probation officer. It is clear he would reasonably have apprehended there would be an investigation if he failed to comply with the drug testing regime. He did fail to comply, by omitting to provide a sample as analysed above. His further action of providing a false sample had a tendency to deflect or adversely affect a future investigation that would inform the Parole Board as to whether Mr Henderson should be recalled to prison. As summarised in McMahon:[32]
It suffices that there is an act which has a tendency to prevent or obstruct a prosecution which an accused contemplated might follow with an intention on the part of the accused to pervert the course of justice.
[32]At [87(c)] (footnotes omitted).
Mr Henderson’s further action of providing a false sample is capable of constituting an action that attempts to pervert the course of justice. That interpretation is consistent with Parliament’s intent to ensure the integrity of the Parole Board regime and compliance with the conditions it imposes.
This ground of appeal fails.
Result
The appeal is dismissed.
Solicitors:
Crown Solicitor, Christchurch for Respondent
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