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Hugo v Police [2024] NZHC 2312 (16 August 2024)

Last Updated: 6 September 2024

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 16 August 2024 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date...............

HUGO v NEW ZEALAND POLICE [2024] NZHC 2312 [16 August 2024]

Introduction

• [1] Logan Paul Hugo has been convicted of two charges of failing to comply with his reporting obligations,¹ one charge of breaching special conditions of an interim supervision order (ISO) and three charges of breaching an extended supervision order (ESO).²

• [2] Mr Hugo appeals his convictions on the last four of these charges on the grounds the ESO was overturned on appeal as the Court of Appeal found that one of the statutory requirements for making an ESO was not met on the evidence. In the circumstances he says neither an ISO or an ESO should ever have been imposed, and he should be allowed to appeal his convictions for breaching them.

Facts

• [3] On 8 September 2021, Mr Hugo was placed on the New Zealand Child Sex Offender Register and on 9 September 2021 he was advised of his reporting obligations.

• [4] On 27 September 2021, Mr Hugo was sentenced to 1 year and 10 months’ imprisonment in the Christchurch District Court for six charges of possessing objectionable material, two charges of indecent assault of a female under 12, one charge of meeting a young person following sexual grooming, and one charge of sexual connection with a young person aged 12–16.

• [5] On 8 September 2022, Mr Hugo became subject to an ISO for a period of 12 months. The ISO was due to expire on 7 September 2023. On 9 September 2022, Mr Hugo was inducted into his ISO.

• [6] A special condition of the ISO states that Mr Hugo is ‘not to use or possess any device capable of accessing the internet unless you are under the direct supervision of

1. Child Protection (Child Sex Offender Government Agency Registration) Act 2016, s 39 — maximum penalty one year imprisonment or $2000 fine.

² Parole Act 2002, s 107T — maximum penalty two years’ imprisonment.

an adult approved in writing by a Probation Officer, or unless you have the prior written approval of a Probation Officer’.

• [7] On 9 August 2023, New Zealand Police executed a search warrant at Mr Hugo’s residential address. In breach of his reporting obligations, a mobile phone capable of accessing the internet was located. The phone contained multiple social media accounts, consisting of Snapchat, Tinder, Badoo, Facebook and Facebook Messenger. By possessing a smartphone, Mr Hugo breached his special condition not to possess internet capable devices. Mr Hugo did not have written permission to possess the device.

• [8] On 28 August 2023, Mr Hugo became subject to an ESO for a period of 18 months. On 31 August 2023, Mr Hugo was inducted into his ESO.

• [9] A standard condition of Mr Hugo’s ESO states “the offender must not associate with, or contact, a person under the age of 16 years, except (i) with the prior written approval of a probation officer; and (ii) in the presence and under the supervision of an adult who (A) has been informed about the relevant offending; and (B) has been approved in writing by a probation officer as suitable to undertake the role of supervision.”

• [10] On 16 September 2023, Mr Hugo was at dinner at a friend’s house where a four-year-old child was present. There were only six other adults in attendance and Mr Hugo chose to sit on the floor within one to two meters of the child while the child was playing with trucks. Mr Hugo did not remove himself from this situation. This continued for 45 minutes until the child and their parents left.

• [11] By associating with the child, Mr Hugo was in breach of the standard condition of his ESO not to associate with children under 16. Mr Hugo did not have permission to associate with the child.

• [12] Another special condition of Mr Hugo’s ESO states “not to possess, consume or use any alcohol or drugs not prescribed to you”.
• [13] On 20 November 2023, Mr Hugo contacted his probation officer and advised that he breached his ESO conditions. Under caution, Mr Hugo admitted that on 17 November 2023 at approximately 7.45pm, he was at a small party in Hillmorton, Christchurch. He initially consumed non-alcoholic beverages with his associates, but at some point, succumbed to peer pressure and consumed two shots of rum. Mr Hugo advised that he was at the party for approximately one and a half hours but was unclear on precise timeframes as he was intoxicated.

• [14] Also present at this party were two children aged five and 10. There were other adults in attendance who were aware of Mr Hugo’s previous convictions and current order. Mr Hugo was aware that the children were present in the property and did not remove himself from this address.

• [15] By consuming alcohol, Mr Hugo placed himself in breach of the special condition of his ESO not to possess or consume any alcohol or drugs not prescribed to him, and by associating with the children without permission, Mr Hugo placed himself in breach of the standard condition of his ESO not to associate with a child under 16.

Principles on appeal

• [16] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.³ In this section, a trial includes a proceeding in which the appellant pleaded guilty.⁴

• [17] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.⁵ If this Court reaches a different view on the evidence, it follows

³ Criminal Procedure Act 2011, s 232(4).

⁴ Section 232(5).

⁵ Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]–[32].

the trial judge necessarily will have erred and the appeal must be allowed.⁶ The onus is on the appellant to show that an error occurred.

Submissions

Appellant’s submissions

• [18] Ms Stitely, for the appellant, submits that leave should be granted to the appellant to appeal out of time, and his appeal against his convictions for breaching the ISO and ESO should be allowed, in light of the fact the Court of Appeal quashed the ESO on 18 March 2024, with Ms Stitley submitting this was on the basis that the District Court did not have the jurisdiction to impose that order.⁷

• [19] The appellant contends that, under the principle of retrospectivity, the Court of Appeal’s decision has the effect of determining that a lawful ESO was never made. As the same evidence was relied on to make the ISO, that, too, should not have been ordered. In the absence of such orders, the appellant could never have been convicted of the offences and a miscarriage of justice has occurred.

• [20] Leave to appeal is brought out of time, but as the common law principle of retrospectivity of judgments is engaged, the question of leave is intrinsically tied to the merits of the appeal.

• [21] Ms Stitely recognises that it is only in exceptional circumstances where a conviction appeal will be allowed where an appellant has pleaded guilty. However, the Court of Appeal in R v Le Page sets out exceptional circumstances where such appeals would be allowed, including if, on the admitted facts, the appellant could not have been guilty of the offence charged.⁸ Here, counsel for the appellant implicitly suggests the admitted facts are altered by the principle of retrospectivity.

• [22] In any event, Ms Stitely also refers to the Supreme Court’s decision in

Re Solicitor-General’s Reference (No 1 of 2023) which confirmed that the categories

⁶ At [38].

⁷ Hugo v Chief Executive of the Department of Corrections [2024] NZCA 62.

⁸ R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 (CA) at [17]–[19].

in R v Le Page are not closed.⁹ The Court held that “the overriding test is whether there will be a miscarriage in the particular case unless the guilty plea is able to be impugned and the conviction set aside”.¹⁰

• [23] Ms Stitely relies on the principle under the common law, that any judgment or order of a court applies retrospectively as well as prospectively.¹¹ This reflects the declaratory theory of the law, as explained by Lord Browne-Wilkinson in Kleinwort Benson Ltd v Lincoln City Council (No 8):¹²

The theoretical position has been that judges do not make or change the law: they discover and declare the law which is throughout the same. According to this theory, when an earlier decision is overruled the law is not changed: its true nature is disclosed, having existed in that form all along. This theoretical position is... a fairy tale in which no one any longer believes ... But whilst the underlying myth has been rejected, its progeny, the retrospective effect of a change made by judicial decision, remains.

• [24] This principle is submitted to apply equally to judgments made about the application of the law to a particular person as it does to general propositions of law.¹³ Where leave is granted, appeals tend to succeed due to the lack of a legal basis for the conviction.¹⁴

• [25] While the principles of retrospectivity and finality can conflict,¹⁵ in cases where appeal rights have not been exhausted, an application to appeal out of time is more likely to be granted than a fresh appeal.¹⁶

⁹ R v Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151, [2023] 1 NZLR 457 at [44].

¹⁰ At [46].

¹¹ Deutsche Morgan Grenfell Group plc v Inland Revenue Commissioners [2006] UKHL 49, [2007] 1 AC 558 at [23]; and Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [22]. This can be contrasted with the default position in legislation, which is that it only applies prospectively: see Legislation Act 2019, s 12.

¹² Kleinwort Benson Ltd v Lincoln City Council [1998] UKHL 38; [1999] 2 AC 349 (HL) at 358 per Lord Browne- Wilkinson.

¹³ R v Governor of Brockhill Prison [2000] UKHL 48; [2001] 2 AC 19 (HL) at 26, 35 and 37.

¹⁴ Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38 at [8].

¹⁵ Cheung v R, above n 11.

¹⁶ Taylor v R, above n 14.

• [26] The decision of whether to grant an application to appeal out of time must balance public and private interests.¹⁷ The Court of Appeal in R v Knight provided some guidance for how courts are to approach such decisions:¹⁸

... the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave by given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.

• [27] Ms Stitely submits that as s 107T of the Parole Act 2002 states that being subject to an ESO is an element of the offence, following the declaratory theory of the law and in light of the Court of Appeal’s decision, there was no lawful ESO in operation at the time of the offending.

• [28] Further, with reference to s 107FA of the Parole Act, while the section does not specify on what grounds an ISO can be made, the Court must be satisfied on the balance of probabilities that, albeit on a provisional basis, the statutory criteria for an ESO are made out.¹⁹ The appellant submits that the Court of Appeal’s decision to overturn the ESO necessarily means there were never any grounds for the District Court to make an ISO and as such the ISO was also unlawful. This is because the District Court Judge never made an assessment as to whether the statutory requirements for an ESO were met. The Court of Appeal, in assessing the same information, being Dr Ketchmark’s report, found that it did not establish that the appellant had a pervasive pattern of serious sexual offending, which is a requirement for an ESO under s 107I(2)(a) of the Parole Act.

• [29] In light of this, the appellant submits it would be a miscarriage of justice to allow the appellant’s criminal record to reflect that he breached an ISO and then an

¹⁷ Cheung v R, above n 1, at [32].

¹⁸ R v Knight [1998] 1 NZLR 583 (CA) at 589.

¹⁹ Chisnall v Chief Executive, Department for Corrections [2017] NZSC 114, [2018] 1 NZLR 83 at

[37] and [73].

ESO where the Court of Appeal held that ESO ought never to be imposed and was subsequently quashed.

• [30] Ms Stitely draws parallels to Te Whatu v Department of Corrections, where Palmer J quashed a conviction for breaching a condition of an ESO by associating with his partner.²⁰ This condition was held to be unlawful as it was not a justified limitation on the appellant’s freedom of association under s 17 of the New Zealand Bill of Rights Act 1990. The Judge held that a conviction for breaching an unlawfully made direction, in a way that did not constitute a risk of reoffending, was a miscarriage of justice.

• [31] Ms Stitely submits it is in the interests of justice that leave be granted to appeal out of time when the factors identified in Cheung v R and R v Knight are considered.²¹ The interests of justice are said to be supported by the following:

(a) First, the public interest in the maintenance of confidence in the administration of justice is said to favour an extension of time. While there is an interest in finality of judicial decisions, this is less persuasive where the change in law relates to the lawfulness of the decision for one individual, rather than a general law change that affected unrelated defendants.

(b) Secondly, it is in the appellant’s interests that an appeal be brought, and there are no individuals whose interests favour an extension being declined as there are no victims of the breaches.

(c) Thirdly, while the length of delay (between five months and eight months) is reasonably long, there was only a one-month delay between the Court of Appeal’s decision and the notice of appeal being filed. This delay does not prejudice the respondent. Ms Stitely also observed there was no right of appeal against the ISO.

²⁰ Te Whatu v Department of Corrections [2017] NZHC 3233, [2018] 2 NZLR 822.

²¹ Cheung v R, above n 11; and R v Knight, above n 18.

(d) Further, the merits of the appeal are strong, and the individual nature of this case means there is no floodgates argument.

• [32] Finally, Ms Stitely submits that this case is like that in Taylor v R, where the Court of Appeal reached the following conclusion on the appellant’s sentence appeal:²²

Ultimately, we think it objectionable and unjust that Mr Taylor be compelled for the sake of finality to serve a sentence which, had the law been correctly understood at the time, would not have been imposed.

• [33] Ms Stitely submits the same conclusion can be drawn here, that it is unjust that the appellant’s convictions stand solely for the interests of finality where they are founded on the breach of an order that the District Court lacked jurisdiction to impose.

Respondent’s submissions

• [34] Ms Fulton, for the respondent, submits that, while the convictions could be revisited, they should not be in this case as the convictions are safe and the appeal should be dismissed. This is because:

(a) The conditions breached by the appellant were not unlawful;

(b) The appellant pleaded guilty to the charges;

(c) Overturning the convictions would have little practical effect on the offender, though may result in an increase in applications for leave to appeal.

• [35] Ms Fulton refers to Taylor v R, where the Court of Appeal considered the tension between the principle of finality of judicial decisions and the declaratory theory of the common law. As a general principle, the Court of Appeal held that finality trumps the declaratory principle. However, there are exceptions. The third exception, which the applicant submits they fall under, is one where the appellant does

²² Taylor v R, above n 14, at [20].

not have an active right to appeal but nor has he exhausted all rights of appeal. This exception is stated as being “more difficult to assess or predict”, being that:²³

... If rights of appeal lay, but were not exercised, A may still seek to appeal out of time. A contest will then arise before the leave court as to whether an extension of time should be granted despite A’s earlier inaction, it being appreciated by all that if leave is granted A will probably win. ... the non-exercise of appeal rights means that this third scenario does not engage the principle of finality in the same way. An application to appeal out of time is more likely to be granted than a fresh appeal (which, where appeal rights are spent, largely depends upon fraud or cogent new evidence which could not have been adduced previously).

• [36] Following a review of decisions,²⁴ Taylor held that the essential question will be whether preserving the finality of a decision in the face of later judicial recognition of evaluative error in that decision would work a substantial injustice. The Court concluded that the answer will not always be yes. In many cases the measure of injustice will not be such as to compel revisiting the earlier decision.

• [37] Based on this legal review, the respondent acknowledges that there is an avenue through which the convictions can be revisited. The respondent then turns to whether there is a substantial injustice that would indicate the convictions should be revisited, that is, whether leave should be granted.

• [38] Ms Fulton submits that the ESO was not quashed on the basis that the District Court did not have the jurisdiction to make the order, but instead on the view that the Court of Appeal took of the evidence in support of the order.²⁵

• [39] However, at the time the appellant committed the breaches of the ISO and ESO, the District Court had been satisfied of the statutory tests. The fact an appeal court may come to a different conclusion at a later time does not detract from the validity of the order at the time it was in force.

²³ Taylor v R, above n 14, at [8].

²⁴ R v Knight, above n 18; R v Hawkins [1997] 1 Cr App R 234 (CA); R v Ballinger [2005] EWCA Crim 1060, [2005] 2 Cr App R 29; A v Governor of Arbour Hill Prison [2006] IESC 45, [2006] 4 IR 88; and R v Cottrell [2007] EWCA Crim 2016, [2007] 1 Cr App R 7.

²⁵ Hugo v Chief Executive of the Department of Corrections, above n 7 at [40] and [45].

• [40] The respondent submits that at the time the appellant breached the ISO and ESO, the orders were validly in place. The actus reus of the breaches themselves remain an offence as it cannot be argued the conditions were unlawful or that the actions did not amount to a breach. Furthermore, at the time, the appellant was well aware his actions constituted breaches, and the respondent submits that it would not be in the interests of justice for the appellant to be relieved of the consequences of intentionally breaking the law.

• [41] The respondent relies on Sloss v R, where the defendant was convicted of failing to comply with reporting obligations under the Child Sex Offender Register.²⁶ He appealed his convictions during the time the Supreme Court had found that the Register did not have retrospective effect, arguing that he should never have been placed on the Register under the Supreme Court decision so the breaches could not be upheld. For present purposes, the Court commented:

[49] This was not unfair in a general sense to Mr Sloss. At the time of his offending, Mr Sloss believed he was subject to the reporting obligations and understood it would be an offence not to comply with them.

• [42] The respondent also refers to Fakaosilea v R, where the Court of Appeal considered an appeal where the appellant had been on bail at the time he committed further offences.²⁷ The defendant was acquitted of the original offences, but received an uplift on his sentence for the offences committed on bail, which he challenged. The Court of Appeal held:²⁸

Whether Mr Fakaosilea was ultimately acquitted of the charges in respect of which he had been bailed does not change the fact that he was subject to bail conditions at the time he committed the offending for which he was being sentenced. Offending while on bail is an aggravating factor that the sentencing Judge was required to take into account. The Judge did not err.

• [43] The respondent submits the same reasoning underpins the current case. The fact that an appeal court later came to a different view of the evidence in support of the ESO does not mean the offence itself of breaching the ESO is null. The ESO was, at the time, lawfully imposed and administered.

²⁶ Sloss v R [2021] NZHC 2179.

²⁷ Fakaosilea v R [2024] NZCA 218 at [193].

²⁸ At [193].

• [44] Further, as an ISO is granted on a provisional basis, it cannot be said the District Court did not have ‘jurisdiction’ to impose the ISO or that there was no lawful ISO in operation at the time of the offending.

• [45] The respondent draws parallels to the situation where an ISO has been granted, is lawfully in force and a person breaches the ISO, but then at the substantive hearing an ESO is not granted. Ms Fulton submits it could not be said that the conviction for a breach of the ISO would not stand simply because the ESO was not granted, the ISO being lawfully in place and binding on the person at the time it was breached.

• [46] Unlike in Taylor, the appellant would not be condemned to preventive detention should his conviction stand. The appellant completed the sentences lawfully imposed for the offending. At best, a successful appeal might mean the removal of those four convictions from his criminal history.

• [47] Equally, Ms Fulton submits this case does not deal with a situation where only one other person would be affected by the decision. Allowing the appeal could very well open the floodgates. This is not to suggest that a “multiplicity of individual injustices can collectively diminish the case for correction”²⁹ but rather to acknowledge the practical effect of a decision in favour of the appellant.

• [48] In all the circumstances, the respondent submits that declining to revisit the convictions would not result in a substantial injustice.

Discussion

• [49] The primary issue is whether leave should be granted to appeal out of time, noting that in Taylor, the Court of Appeal held that where a right of appeal has not been exercised the principle of finality is not engaged in the same way as when appeal rights have been exhausted.³⁰

29. R v Taylor, above n 14 at [19], referring to Bowen v Paramount Building Ltd [1977] 1 NZLR 394 (CA).

³⁰ At [8].

• [50] The present case fits within the third category of cases identified by the Court of Appeal in Taylor, where rights of appeal have not been exercised and the appellant is seeking leave to appeal out of time. In those circumstances, the Court noted that the key issue is likely to be whether an extension of time should be granted, with it being appreciated by the parties that if leave was granted the appellant would probably win.³¹ The Court went on to observe that the arguments for an appellant would be “rather stronger if she is a criminal defendant and prisoner and her rights of liberty are impaired”.³² Here, rights of liberty are not at stake and Mr Hugo has served his sentence on the convictions. However, I recognise that a criminal conviction is a stain on a person’s record and that is a factor to be taken in considering whether to grant leave.

• [51] I also note that in this particular case the convictions were entered following a plea of guilty. Again, as counsel for the appellant points out, it is only in exceptional circumstances that an appellant can appeal their conviction where they have pleaded guilty. That, too, is a potential impediment to whether leave should be granted.

• [52] A case where leave was granted is R v Knight, where leave was granted to appeal convictions for benefit fraud following the Court of Appeal delivering a judgment which had the effect of ruling that Ms Knight was not in fact living in a relationship in the nature of a marriage at the time she was convicted.³³ The Court held that the discretion to grant leave out of time was “not unfettered” and that “[t]he touchstone is the interests of justice in the particular case”.

• [53] As set out at [26] above, the Court in Knight said that leave should only be granted where “special circumstances” justified a departure from the principle of finality. That required consideration of the strengths of the proposed appeal, the practical utility of the remedy sought, the length of the delay, the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, and the absence of prejudice to the Crown.

³¹ At [8].

³² At [9].

³³ R v Knight, above n 18, at 587.

• [54] In deciding whether this is a case where “special circumstances” warrant leave being granted, I accept the issue is finely balanced.

• [55] In terms of the merits of the appeal, I consider that at least the convictions for breach of the ESO would likely succeed on appeal. That is a strong argument in favour of granting leave. However, it cannot be said with any certainty that all the convictions would be overturned on appeal. The Court of Appeal’s decision only overturned the ESO. While counsel for Mr Hugo says the ISO decision was made relying on the same evidence as the ESO and therefore should also be set aside, the practical reality is that it has not been overturned. Individuals are required to comply with the terms of an ISO, even if an ESO is not subsequently made, or, as here, is made and then overturned on appeal.

• [56] In terms of the practical utility of the remedy sought, I acknowledge that the sentences imposed have been served. However, as already noted, removal of the convictions is clearly important to Mr Hugo and would have practical utility for him. That said, it is not as strong in argument as would be the case for someone who had no other convictions. Mr Hugo will obviously still have serious convictions against his name in relation to the original offending, and his convictions for breaching his reporting obligations as a registered Child Sex Offender.

• [57] While the length of the delay is reasonably significant, it is clearly explained by the time it has taken to appeal the imposition of the ESO through to a successful outcome in the Court of Appeal. The delay following issue of that decision is not material.

• [58] In terms of the extent of the impact on others similarly affected and on the administration of justice (for example, floodgates considerations), there is no indication there would be a large number of people in Mr Hugo’s position. The appeal is brought because the Court found that, on the evidence, one of the statutory criteria for making an ESO was not established. This certainly suggests that a decision to grant leave would have limited application to other cases and so be unlikely to engage floodgates considerations. That said, I recognise it would create a precedent that may encourage further applications where a defendant can claim analogous circumstances.
• [59] The final consideration raised in Taylor is whether there is prejudice to the Crown. Here, there is no particular prejudice raised, other than it would encroach on the principle of finality.

• [60] In my view, the question of whether leave should be granted really turns on whether, in all the circumstances, justice requires that leave be given. After careful deliberation I am not satisfied that it does.

• [61] In that regard, I rely on the examples traversed in Taylor where leave to appeal was declined in respect of convictions which were regularly entered, following guilty pleas, but which are later sought to be challenged on appeal because of a different understanding as to the legal position at the time.

• [62] These cases include R v Hawkins, where an applicant had pleaded guilty to various mortgage fraud charges.³⁴ A subsequent House of Lords decision meant that his understanding of the law at the time he had pleaded guilty was different from the law as was now articulated by the Courts. However, the Court of Appeal declined leave to appeal seven months out of time holding the circumstances created no substantial injustice. To allow an extension of time would mean that a defendant who had “accepted that he had acted dishonestly and fraudulently, and pleaded guilty, ... could after the event seek to reopen the convictions.” That should not be allowed unless a substantial injustice was done.

• [63] In R v Ballinger, the defendant was convicted of indecent assault by a Court Martial.³⁵ He did not appeal his conviction. A year later, it was held that such trials were unlawful because of inconsistency with the European Convention of Human Rights. The defendant’s application for leave to appeal his conviction out of time was declined because he had not suffered a substantial injustice. He had pleaded guilty and had not sought to challenge his conviction on any basis.

• [64] Similarly, in A v Governor of Arbour Hill Prison, the defendant pleaded guilty to unlawful carnal knowledge of a girl below the age of consent.³⁶ Two years after his

³⁴ R v Hawkins, above n 24, at 239.

³⁵ R v Ballinger, above n 24.

³⁶ A v Governor of Arbour Hill Prison, above n 24.

conviction the Supreme Court declared the provision creating the offence to be inconsistent with the constitution of Ireland. The defendant sought leave to appeal his conviction, but ultimately leave was declined by the Supreme Court. The Court considered it significant that the applicant had pleaded guilty at the time and through his plea he had acknowledged the elements of the offence.

• [65] In summary, the question of whether leave should be granted turns on whether preserving the finality of the decision would work a “substantial injustice”. In many cases the measure of injustice will not be enough as to compel revisiting the earlier decision.

• [66] Applying those principles to the present case, I observe that Mr Hugo was inducted into the conditions of both his ISO and ESO, and was aware at the time that what he was doing was in breach of those conditions. Indeed, he even self-reported one of the breaches. In that regard, I contrast it to the case of Rutherford v Canterbury Regional Council, where I granted leave to appeal out of time. In that case, the appellant had always maintained that he was not carrying out works in the bed of a river and where his view of the legal position was subsequently vindicated by the Court of Appeal in separate proceedings involving another defendant.³⁷ He had not flagrantly committed an offence. Where there is deliberate disobedience of the law as it stands at the time, albeit the legal position changes as a result of a subsequent decision, that is a factor in my view which points against there being a substantial injustice.

• [67] Mr Hugo also does not face the potential injustice of continuing to serve a sentence for these offences, distinguishing this from a case such as in Taylor.

• [68] While I recognise that Mr Hugo may wish to have these convictions removed from his record, they are relatively minor convictions compared with the convictions which led to the application to make an ESO. This is not a case where the convictions mean the difference between having a criminal history or not.

³⁷ Rutherford v Canterbury Regional Council [2021] NZHC 1506, (2021) ELRNZ 868.

• [69] Furthermore, as I have already noted, they reflect blameworthy behaviour. At the time, Mr Hugo knew he was subject to the restrictions of an ISO and then an ESO, and yet he knowingly breached those restrictions. That acknowledgement is reflected in his guilty pleas to the charges.

• [70] For all these reasons, I do not consider that this is a case where leave to appeal out of time should be granted in order to avoid a substantial injustice.

• [71] Accordingly, leave to appeal out of time is declined.

Solicitors:

Crown Solicitor, Christchurch

Copy to:

A M S Williams, Barrister, Christchurch