Hern v Commissioner of Police
[2025] NZHC 2978
•8 October 2025
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2025-483-22
[2025] NZHC 2978
JASON MILES HERN v
THE COMMISSIONER OF POLICE
Hearing: 7 October 2025 Appearances:
R Gould for Appellant
H Bullock for Respondent
Judgment:
8 October 2025
JUDGMENT OF GWYN J
[Conviction appeal]
Introduction
[1] Jason Miles Hern appeals against his conviction for two charges of intimidation.1 He appeals on the ground that his lawyer entered guilty pleas on his behalf without his instructions.
[2] Mr Hern also appeals against the sentence of 100 hours’ community work and six months’ supervision for non-violence counselling. He appeals on the basis that he is not a suitable candidate for community work given his age and disabilities, and that those limitations would preclude any useful rehabilitation from taking place.
1 Summary Offences Act 1981, s 21(1)(a); maximum penalty of three months’ imprisonment or
$2,000 fine.
HERN v POLICE [2025] NZHC 2978 [8 October 2025]
[3] Ms Bullock, for the Police, notes that the appeal has been filed seven months past the statutory timeframe. However, if leave to appeal out of time is granted, she concedes that the appeal against conviction should be allowed, as there would otherwise be a risk of miscarriage of justice. If the conviction appeal is allowed, the appeal against sentence falls away; if the conviction appeal is not allowed, the Police oppose the sentence appeal as the sentence is not manifestly excessive.
Factual background
[4] The following facts are taken from the Police Summary of Facts on which the disputed convictions were entered.
[5] On 29 October 2023, Mr Hern arrived at an address where the victim was drinking with some friends. While there, Mr Hern believed the victim had insulted him, and left shortly after.
[6] On the morning of 4 November 2023, Mr Hern drove uninvited to the victim’s home address and up his driveway. He demanded an apology for the incident on 29 October, raising his voice, breathing heavily and staring at the victim. The victim repeatedly apologised. Mr Hern got out of his vehicle and asked the victim if he wanted a fight. He took a step towards the victim with his chest puffed out, fists clenched and arms out wide. The victim said he did not want a fight and Mr Hern left, saying the victim owed him.
[7] On the morning of 10 November 2023, Mr Hern again drove uninvited up the victim’s driveway. He told the victim that he still owed him an apology. He stared the victim down and told him that he had to give him money and that he had a gun. Mr Hern told him that if the victim did not come to his house to have a coffee with him, bring some money and apologise, he would use violence. He told the victim “I’ll bring a gun and blow your kneecaps off” and made a pointing gesture at the victim like he was holding a gun. The victim agreed to go to his house, and Mr Hern reminded him that he would use violence if he did not. Mr Hern left.
[8] In explanation, Mr Hern admitted going to the victim’s house twice asking for an apology but denied threatening him on either occasion.
Procedural history
[9] Mr Hern was originally charged with one charge of intimidation and one charge of demanding with intent to steal.2 His first appearance was on 22 November 2023 before a Justice of the Peace. On 8 December 2023, he appeared before Judge Krebs and was remanded on bail. On 15 January 2024, Legal Aid assigned Mr Scott Oliver to act for Mr Hern. Mr Oliver has filed an affidavit, but the Crown indicated in advance of the hearing that they did not require him to appear for cross-examination.
[10] Mr Hern initially entered not guilty pleas on 19 January 2024. Mr Oliver says that he had difficulty obtaining instructions from Mr Hern before the case review hearing on 15 March 2024.3
[11] At the case review hearing, Mr Oliver told Judge Rowe that he had reached a resolution with the Police. The charge of demanding with intent to steal was amended to a second charge of intimidation. The transcript from the hearing shows that neither Mr Oliver nor Mr Hern officially entered a plea of guilty, but this was assumed by Judge Rowe:
Kia ora Mr Hern, you’ve pleaded guilty to the amended charge of intimidation and to the previous charge of intimidation. You’re convicted of those two charges …
[12] Mr Oliver sent Mr Hern a reporting letter on 26 March 2024, which stated “You pleaded guilty after the charges were amended down.”
[13] Mr Hern’s sentencing was adjourned multiple times, in part because the Police filed additional charges against him, to which he pleaded not guilty. On 18 October 2024, Mr Hern finally appeared for sentencing before Judge Krebs. By this time, Mr Oliver was no longer acting for Mr Hern, and it does not appear that Mr Hern had counsel at his sentencing. The additional charges were withdrawn by leave. Judge Krebs then proceeded to sentence Mr Hern, which Mr Hern appeared confused by:
2 Crimes Act 1961, s 239(2); maximum penalty of seven years’ imprisonment.
3 Mr Oliver’s affidavit says the case review hearing was on 19 March 2024, but this appears to be a typographical error.
THE COURT TO MR HERN:
Q. Mr Hern, you have been charged that on the 4th of November 2023 and then the 10th of November you threatened to injure some people and were intimidating. Anything you want to tell me about that before I decide what the appropriate penalty is?
A. When, Sir?
Q.You have already pleaded guilty to these charges, they were in November last year, nearly 12 months ago.
A. Nah. (inaudible 10:23:11).
Q. Pardon?
A. (inaudible 10:23:13).Q.This is where you went around to [the victim’s] place, and you threatened him and said you were going to blow his knee caps off, and
–
A.Nah, now that’s been sorted in the charges. I spoke up about that last time I was here, you’re the fourth different judge I’ve spoken to, do you know that? … I haven’t got a problem, those are old, those are old charges, I got those thrown out and the one with my (inaudible 10:24:33). Not for two stupid ones –
Q. No, they are not thrown out, you have actually pleaded guilty to these. There is another couple of charges thrown out, but.
A. I pled guilt – I mean I pled no plea.
Q. But you have already pleaded guilty, mate. You pleaded guilty ages ago.
[14] Judge Krebs then sentenced Mr Hern to community work for 100 hours and required him to undergo supervision for non-violence counselling for six months, stating:
I am not sending you to prison or anything like that today, but I do need to hold you to account for what you did here. You are something of an entitled man and you resort to violence and threats when you think it is appropriate. Your behaviour on the dock today displays that to me as well. You are convicted of these two charges as you already have been.
Jurisdiction on appeal
Appeal against conviction
[15] An appeal against conviction is a general appeal.4 Appeals against conviction are brought under pt 6, subpt 3 of the Criminal Procedure Act 2011 (CPA). I must allow the appeal if I am satisfied that a miscarriage of justice occurred for any reason.5 The definition of “miscarriage of justice” for the purposes of this appeal is set out in s 232(4) of the CPA:
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2018] 2 NZLR 141 at [13].
5 Criminal Procedure Act 2011 (CPA), s 232(2).
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[16] To be successful under subs (4)(a), the appellant must establish there is a reasonable possibility that a more favourable verdict, such as not guilty, might have been entered had there been no error.6 In other words, this requires me to assess first, whether something has gone wrong in a relevant way and second, whether that error has led to a real risk that the outcome of the trial was affected.7
[17] As the Court of Appeal has recently confirmed, the Court will only allow an appeal against conviction following a guilty plea in exceptional circumstances.8
[18] There are four categories in which the Court will, generally, observe a miscarriage of justice when an appellant has pleaded guilty. Three of these were usefully summarised in Watts v R:9
(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)the appellant could not in law have been convicted of the offence charged;
(c)the plea was induced by a ruling which embodied a wrong decision on a question of law.
[19]Further, in Merrilees v R, the Court said:10
[34] There will be a further situation where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
6 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
7 At [110].
8 Wharekura v R [2025] NZCA 146 at [43].
9 Watts v R [2011] NZCA 41 at [19]–[21] citing R v Le Page [2005] 2 NZLR 845 (CA).
10 R v Merrilees [2009] NZCA 59 at [34].
[20] However, the categories of exceptional circumstances are not closed or complete.11
Appeal against sentence
[21] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.12 Generally, an appellate court “will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.13 In most cases, a sentence appeal will turn on whether the final outcome is manifestly excessive, rather than the route taken by the Judge in reaching that outcome.14 The Court must dismiss the appeal in any other case.15
Leave to appeal
[22] Section 231(2) of the CPA requires a notice of appeal against conviction to be filed within 20 working days after the date of sentence for the conviction appealed against. That 20 working day period expired here in November 2024. Mr Hern’s legal aid lawyer at the time, Mr Harvey, first filed a notice of appeal on 16 May 2025, which is about six months late. The notice of appeal records the reasons for the delay and seeking of leave to proceed out of time16 as “Did not know I could appeal in this way. I have just been advised by a lawyer”. Ms Gould, for Mr Hern, has not provided any further reasons for the delay in filing the appeal.
[23] The key question is whether it is in the interests of justice to grant the extension, taking into account all relevant circumstances.17 The relevant balancing factors include:18
11 Whichman v R [2018] NZCA 519 at [36].
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
13 At [36].
14 Ripia v R [2011] NZCA 101 at [15].
15 CPA, s 250(3).
16 The Court can extend the time allowed for filing a notice of appeal at any time under s 231(3) of the CPA.
17 Smith v R [2020] NZCA 221 at [3]–[4] citing R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99]; and
R v Knight [1998] 1 NZLR 583 (CA) at 587.
R v Lee at [99] citing R v Knight at 587–589.
… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[24] However, the most significant factors are generally the reasons for the delay and the merits of the proposed appeal.19
[25] Ms Bullock points to the comments made by the Court of Appeal in R v Lee that the fact an appeal is arguable is not enough to justify an extension, and it is a matter of balancing the relevant factors.20 But the following paragraph of Lee says:
[107] Equally, however, we do not accept the Crown submission that artificial limits should be put on the balancing exercise so that, where a delay is long and there is prejudice to the Crown, a potential appellant must show substantial merits of a kind that throw real doubt on the propriety of the verdict. There is no doubt that, if there was real concern that a verdict was wrong, the interests of justice will favour the granting of an extension…
[26] Not only is this appeal arguable, but the Police concede it should be allowed, and that there is a risk a miscarriage of justice will result if the convictions are not overturned. Given there are no concerns surrounding the floodgates considerations or the administration of justice, and the prejudice to the Police is minimal, the fact of a lack of detail for the delay cannot outweigh the strength of the appeal. It is clearly in the interests of justice to grant leave to appeal, and I do so.
Appeal against conviction
[27] Mr Hern has filed an affidavit. He was not called to give oral evidence, as the Crown indicated in advanced of the hearing that he was not required for cross-examination. His evidence was that he did not intend to plead guilty to the charges he faced as he did not agree with the Police version of events. He does not believe he ever instructed Mr Oliver to enter pleas of guilty on his behalf, and says he did not fully understand what was happening in court when Mr Oliver was speaking for him.
19 Mathew Downs (ed) Adams on Criminal Law – Criminal Procedure (online ed, Thomson Reuters) at [CPA231.02(2)] citing Mikus v R [2011] NZCA 298 at [26]; and R v Slavich [2008] NZCA 116 at [14].
20 R v Lee, above n 17, at [106].
[28] Mr Oliver’s evidence is that he had difficulty obtaining instructions from Mr Hern. He is unable to specifically recall his discussion with Mr Hern regarding the entry of the guilty plea, other than to state that it is his usual practice to explain to his clients that any amendment to charges is contingent on their entering a guilty plea. While it is his usual practice to obtain written instructions, in the form of a signed Summary of Facts next to the word “guilty”, he did not on this occasion, and he cannot locate those written instructions.
[29] Mr Oliver’s normal practice is also to confirm a guilty plea orally, to ensure with his client that they are on the same page. But on this occasion, although he can “vaguely recall” having to make sure his instructions were correct, he cannot recall what words were used.
[30] Ms Gould submits that, based on that evidence, it appears there was a misunderstanding between Mr Hern and Mr Oliver. Counsel also notes that while Mr Oliver did advise the Court of the resolution and sought an amendment to a charge, at no point did he seek to vacate either of the not guilty pleas previously entered or actually enter pleas of guilty. Nor did Judge Rowe clarify the pleas with Mr Hern himself. Guilty pleas appear to have been assumed rather than formally entered.
[31] Ms Gould submits that despite the clear indication from Mr Oliver that guilty pleas were to be entered, it is extremely important that pleas are formally entered, to avoid precisely this kind of situation, where the lawyer believes their client is fully aware and fully on board with a resolution negotiated on his behalf, but the client holds a different view.
[32] Ms Gould says that Mr Hern has told her he did not speak up at the time because a Court Elder was motioning him to keep silent, and he was trying to control his outbursts, brought on by his mental health issues. He appeared to believe that he could, instead, rectify the situation at a later date.
[33]Based on the information before the Court, Ms Bullock responsibly observes:
(a)there is a risk Mr Hern did not understand the nature of or did not intend to enter a guilty plea to each of the two charges at the case review hearing on 15 March 2024;
(b)it is not clear what Mr Oliver’s advice was to Mr Hern prior to the case review hearing;
(c)on the day of sentencing, Mr Hern did not have a lawyer and indicated he did not enter guilty pleas. In those circumstances, sentencing should have been stood down or adjourned for clarification on Mr Hern’s position.
[34] Ms Bullock therefore concedes, and I accept, that there is a risk a miscarriage of justice will result if the convictions are not overturned. This risk falls into the first category identified in Watts v R, that being that Mr Hern “…did not intend to plead guilty to a particular charge”.21 It follows that I must allow the appeal.
[35] Ms Bullock initially submitted that I may wish to order a retrial and remit the matter to the District Court. Ms Gould submitted that the matter should not be remitted, pointing to the lapse of time and the inevitable distress caused to Mr Hern. She also submitted there would be no utility in doing so; if a case review hearing were to take place it seems likely that the Police would then withdraw the charges. That submission was based on Mr Hern’s assertion that the victim now lives on Great Barrier Island and does not want to give evidence against him. I am grateful to Ms Bullock who made inquiries of the Police after the hearing and confirmed that the victim is not interested in taking the matter any further or attending a trial. On that basis, I decline to remit the matter to the District Court.
21 Watts v R, above n 9, at [19].
Appeal against sentence
[36] If I had upheld the convictions, I would have been required to turn to Mr Hern’s sentence appeal. The thrust of Mr Hern’s appeal is that his age and disabilities meant he was not a suitable candidate for community work. He presented evidence of a PTSD diagnosis.
[37] Ms Gould also says that his limitations would have precluded any useful rehabilitation from taking place through supervision, and that his partner and medical clinician would provide better support. Counsel would have sought for Mr Hern’s sentences to be quashed and for him to be ordered to come up if called upon within six months.
[38] However, as I have allowed the appeal against Mr Hern’s convictions, the sentence imposed on him falls away.
Result
[39]Leave to appeal is granted.
[40]The appeal against conviction is allowed. The convictions are set aside.
Gwyn J
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