Ruling notes over-criminalisation may be a question of general, public importance
New Zealand’s Supreme Court has dismissed a request to appeal by a man who sought to avail of the special plea of previous conviction in connection with a charge under the Crimes Act 1961 after his conviction under the Parole Act 2002.
In Henderson v R [2025] NZSC 182, the applicant was sentenced to imprisonment for six years and five months for dishonesty, firearm, and drug offences in May 2020 and was released on parole in September 2021.
Under the special conditions of his parole, the applicant should refrain from possessing or consuming drugs or alcohol and should attend alcohol and drug assessments.
The applicant failed to attend required drug assessments multiple times from February to September 2023, attended an October 2023 assessment after a formal warning, and gave a sample found not to be human urine. He was recalled to prison.
Police charged the applicant for failing to provide a urine sample under s 71A of the Parole Act, then for wilfully attempting to pervert the course of justice under s 117(e) of the Crimes Act. Both charges pertained to the same incident.
On 10 November 2023, the applicant pleaded guilty to the Parole Act charge, for which he was convicted and discharged.
In connection with the Crimes Act charge, the applicant entered a special plea of previous conviction. He alleged that the Crown could not proceed with this charge because of his Parole Act conviction.
The applicant also applied to dismiss the Crimes Act charge under s 147 of the Criminal Procedure Act 2011. He argued that there was no valid ‘course of justice’ to pervert or that there was no useful purpose to continue the proceeding.
On 10 June 2024, Judge Crosbie of New Zealand’s District Court determined that the alleged facts arguably revealed a ‘course of justice’ on the alleged facts. The applicant pleaded guilty to and received a conviction for the Crimes Act charge while reserving his appeal rights.
New Zealand’s Court of Appeal dismissed the applicant’s appeal. On the first issue of whether he could avail of the special plea of previous conviction, the appeal court ruled that the conduct underlying the two charges was not substantially the same.
On the second issue of whether, in any event, the case met the ‘course of justice’ element of the Crimes Act charge, the appeal court held that the applicant:
The applicant requested leave to appeal.
The Supreme Court of New Zealand dismissed the application for leave to appeal upon deeming it unnecessary in the interests of justice to hear and determine the proposed appeal.
First, the Supreme Court saw insufficient prospects of success to justify granting leave on the issue of the relationship between the elements of the Parole Act and Crimes Act charges.
The Supreme Court acknowledged that the courts below applied well-settled principles relevant to the special plea of prior conviction.
Second, the Supreme Court saw no issue of general or public importance or a possible miscarriage of justice relating to the definition of ‘course of justice.’
The Supreme Court accepted that the prospect of over-criminalisation might constitute a question of general and public importance. However, the Supreme Court ruled that the facts did not engage this issue because the applicant knew that he risked being recalled to prison by failing to provide a proper urine sample.
The Supreme Court concluded that this case met the required relationship between the applicant’s conduct and the relevant course of justice.
