By Anna Longdill
Appeal against conviction for attempting to pervert the course of justice – Crimes Act 1961, ss 10, 117(e); Criminal Procedure Act 2011, s 46; New Zealand Bill of Rights Act 1990, s 26; Parole Act 2002, s 71A – was the special plea of previous conviction available? – was providing a false urine sample capable of perverting the course of justice?
Henderson v R [2025] NZCA 147
Benjamin Henderson was convicted of dishonesty, firearm and drug offences in 2020. The District Court sentenced him to six years and five months imprisonment. On 22 September 2021, Henderson was released on parole. Conditions of his parole included a requirement that he attend an alcohol and drug assessment and not possess or consume alcohol, controlled drugs or psychoactive substances (except controlled drugs prescribed for him).
Henderson failed to attend five appointments for a drug test. On 26 September 2023, Henderson attended the appointment but was unable to provide a urine sample after three attempts. On 29 September 2023, Community Corrections warned Henderson of the consequences of non-compliance with the drug testing requirements.
On 9 October 2023, Henderson attended a further appointment. He provided a false urine sample. A toxicologist later confirmed that the sample provided was synthetic urine, very closely related to the brand “Bulletproof X2”.
On 19 October 2023, Corrections charged Henderson with breaching s 71A Parole Act 2002 (offences related to drug or alcohol conditions) through failing to provide a valid urine sample. He pleaded guilty to this charge on 10 November 2023 and was convicted and discharged.
On 3 November 2023, the New Zealand Police charged Henderson with attempting to pervert the course of justice under s 117(e) Crimes Act 1961. The allegation was that he provided a false urine sample when required to under a Parole Act special release condition.
Henderson entered a special plea of previous conviction (s 46 Criminal Procedure Act 2011), arguing that he had already been convicted of an offence arising from the same facts (the Parole Act offence). He also applied for the charge to be dismissed under s 147 Criminal Procedure Act on the grounds that his actions were not capable of perverting the “course of justice”.
In a pre-trial judgment, Judge Crosbie concluded the special plea was not available to Henderson as the two offences did not arise from the same facts. Rather, the Parole Act charge addressed a failure to provide a sample, whereas the Crimes Act charge dealt with the provision of a false urine sample. The judge also dismissed Henderson’s s 147 application, holding that a the Parole Board has a continuing supervisory role in relation to any parolee, consideration of an application for recall of an offender would constitute the “course of justice” and taking steps to adversely affect proceedings that an offender contemplates may follow amounts to an attempt to pervert the course of justice.
On the basis of that judgment, on 10 July 2024 Henderson pleaded guilty to, and was convicted of, attempting to pervert the course of justice. He then appealed the judgment of Judge Crosbie on both issues.
Applicable principles: Crimes Act 1961, ss 10, 117(e); Criminal Procedure Act 2011, s 46; New Zealand Bill of Rights Act 1990, s 26; Parole Act 2002, s 71A – did the Parole Act charge and Crimes Act charge involve substantially the same punishable acts or omissions? (No, the Parole Act charge related to Henderson not undergoing the testing procedure and not providing a urine sample. The Crimes Act charge related to the provision of a false urine sample. There was not one act or omission which constituted an offence under both Acts (s 10 Crimes Act). The acts that make the Crimes Act charge punishable are not substantially the same as the omission that makes the Parole Act charge – they do not arise from the same facts as required by s 46 Criminal Procedure Act) – did Henderson attempt to pervert a “course of justice”? (Yes. Proceedings of the Parole Board are part of the course of justice. Henderson’s 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 Henderson should be recalled to prison. This interpretation is consistent with Parliament’s intent to ensure the integrity of the Parole Board regime and compliance with the conditions it imposes)
Held: The appeal is dismissed.
0 Comments