Henriksen v The King - [2023] NZCA 430

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.

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REASONS OF THE COURT

(Given by Gilbert J)

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.
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

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).
Following a trial by jury in February 2012, Mr Henriksen was found guilty of these charges.
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]
[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].
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.
Mr Nabney filed a notice of abandonment of appeal on behalf of Mr Henriksen on 31 January 2014.
As noted, the notice of application for leave to withdraw the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Henriksen v The King

Details

AGLC: Henriksen v The King [2023] NZCA 430
Case: [2023] NZCA 430
Decision Date: 7 September 2023 at 2 pm

CaseChat Overview and Summary

The matter before the court involved Mr Henriksen, who sought to withdraw his notice of abandonment regarding an appeal against conviction. The notice of application for leave to withdraw the notice of abandonment was lodged more than seven years after the initial notice was filed. The delay was attributed to a change in legal representation and the discovery of new grounds for appeal, specifically focusing on the duplicity of the charges. The Governor General and the Criminal Case Review Commission had previously declined Mr Henriksen's petitions for the prerogative of mercy, leading him to pursue an application to vacate the notice of abandonment.

The primary legal issues the court needed to address were whether the notice of abandonment could be withdrawn given the substantial delay and whether the new grounds for appeal, based on the duplicity of charges, constituted a miscarriage of justice. The court also had to consider whether the delay in filing the application to withdraw the notice of abandonment was justifiable and whether the proposed new grounds for appeal were valid.

The court examined the reasons for the delay, noting that the change in legal representation and the subsequent discovery of new grounds for appeal were significant factors. It acknowledged the diligent investigation conducted by the previous counsel and the appropriateness of the legal advice provided at the time. The court also considered the new grounds for appeal, focusing on the duplicity of charges and whether this constituted a miscarriage of justice. After reviewing the trial rulings and the overall circumstances, the court concluded that the delay was not inordinate and that the new grounds for appeal warranted consideration. Consequently, the court granted the application to withdraw the notice of abandonment.

The court ordered that the notice of abandonment be withdrawn and that the appeal against conviction proceed on the new grounds relating to the duplicity of charges. The court's decision allowed Mr Henriksen to pursue his appeal based on the newly identified grounds, providing him with a further opportunity to challenge his conviction.

Orders

Orders of the court

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Background

Background to the litigation

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 Backgrounda)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.i)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): 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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