Chief Executive of the Department of Corrections v Shane Aaron Gardiner

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeMiller J
Judgment Date18 December 2017
Neutral Citation[2017] NZCA 608
Docket NumberCA44/2017 CA498/2017
Date18 December 2017

[2017] NZCA 608



French, Miller and Winkelmann JJ




Chief Executive of the Department of Corrections
Shane Aaron Gardiner
Shane Aaron Gardiner
Chief Executive of the Department of Corrections
Chief Executive of the Department of Corrections
Shane Aaron Gardiner

D J Perkins for Chief Executive of the Department of Corrections

D A Ewen and SWO Campbell for S A Gardiner

Damages, Tort — Appeal against a High Court decision which found the appellant liable for false imprisonment and awarded damages of $10,000 in favour of the defendant — cross-appeal by the defendant against quantum — defendant spent 30 days longer in prison that he should have — incorrect calculation of credit for pre-sentence detention — non-retrospective overrulings

The Court held that Marino was retrospective in effect. Had it been prospective only, the SC must have specified that the detention of Booth and Marino remained lawful. It was not partially retrospective applying to Booth and Marino alone. The Chief Executive had to follow Taylor, but good faith was not a defence to the tort.

The PVCA was intended to ensure that prisoners could not claim compensation for harm for which they might have obtained redress through an internal process. G had told prison staff that he believed his release date had been wrongly calculated. He had not taken that further or make use of any other complaints mechanism. None of the PVCA's complaints mechanisms could have done G any good, because he would have been told that the law was as stated in Taylorand Corrections had to follow it. Section 13(1) PVCA (restriction on awarding of compensation) contemplated that a claim was only barred when the prisoner had not made reasonable use of a reasonably available complaints mechanism that might have delivered effective redress and reduced or eliminated any case for compensation. The PVCA did not bar G's claim.

Having regard to s14 PVCA (guiding considerations for awarding of compensation) compensation was merited. Although G had been unlawfully detained for one month, it was associated with a lawful sentence. Corrections had acted in good faith and there was no need for deterrence. The compensation assessment was approached assessment on the basis that the Court was valuing the loss of G's liberty for about five per cent of his lawful sentence. An appropriate award would be not less than $8,000 and $12,000. The amount awarded was within the range.

The appeals were dismissed.

  • A The appeals are dismissed.

  • B The appellant in CA44/2017 must pay the respondent 80 per cent of costs for a standard appeal on a band A basis and usual disbursements. We certify for second counsel.



(Given by Miller J)


Shane Gardiner was held in the custody of the Department of Corrections for longer than he ought to have been under his sentences of imprisonment. We are asked to decide whether the Chief Executive is liable in false imprisonment; and if so, whether damages ought to be paid, and in what sum.


The Department released Mr Gardiner on 23 September 2016. Prison staff had earlier understood that his statutory release date under several concurrent sentences of imprisonment was 2 October 2016. Their calculation was faithful to this Court's 2003 interpretation, in Taylor v Superintendent of Auckland Prison ( Taylor), 1 of legislative provisions governing credit for pre-sentence detention. 2 That interpretation was wrong. The Supreme Court so held on 22 September 2016, in Booth v R (Marino). 3 Mr Gardiner ought to have been released on 24 August 2016. He spent 30 days longer in prison than he ought to have done.


Mr Gardiner sued in tort for false imprisonment. He sought summary judgment on liability and succeeded before Simon France J. 4 Remedy was tried before Dunningham J, who found damages appropriate and awarded Mr Gardiner $10,000, with costs. 5


This leads to three appeals: two by the Chief Executive, one (CA44/2017) against Simon France J's judgment on liability, and one (CA498/2017) against Dunningham J's judgment finding an award of damages appropriate; and one by Mr Gardiner against the quantum of damages awarded by Dunningham J (CA496/2017). The Chief Executive maintains that the judgment of the Supreme Court was prospective only, so that Mr Gardiner's detention was lawful throughout; 6 alternatively, that the Prisoners' and Victims' Claims Act 2005 (PVCA) stands as a bar to compensation; and further, that a declaration would be a sufficient remedy. Mr Gardiner maintains that the award was inadequate.

Pre-sentence detention: the Supreme Court judgment

The Supreme Court judgment in Marino having settled the law, we need not discuss ss 90 and 91 of the Parole Act 2002, nor this Court's judgment in Taylor. The Supreme Court's reasons are of moment in this appeal primarily for what they say, or do not say, about the judgment's retrospective effect.


It is not in dispute that, following Taylor, the Chief Executive had calculated pre-sentence detention, where concurrent sentences were imposed, on a charge-by-charge rather than an aggregate basis. Under that approach Mr Gardiner would have been correctly detained until 2 October 2016. The Supreme Court held that pre-sentence detention is to be calculated in the aggregate, meaning that a prisoner serving concurrent sentences is entitled to credit for all pre-sentence detention even where it pre-dates the offence that received the longest sentence at his subsequent sentencing. 7 Under that approach the Parole Act did not authorise Mr Gardiner's detention after 24 August 2016.


The majority judgment in the Supreme Court is brief. The Court addressed itself to the correct interpretation of the legislation, speaking in the present tense and holding that: 8

The … definition of pre-sentence detention relates to detention during the whole of the court process or processes from the original remand in custody on any charge up to the imposition of a sentence (or sentences) of imprisonment. The entirety of that period is deducted from each sentence or sentences of imprisonment imposed…

(Footnotes omitted.)


Turning to what that meant for the appellants before it, the Court held shortly that: “for both Mr Marino and Mr Booth, the whole period from the first remand in custody until sentence, is pre-sentence detention applicable to all charges”. 9


We were advised that, anticipating the Supreme Court might not decide his appeal before his scheduled release, Mr Marino sought, in the alternative, a declaration that his detention after a given date was unlawful. Mr Marino's counsel also invited the Supreme Court to declare its revised interpretation of the legislation retrospective in effect. The majority judgment in the Supreme Court makes no express reference to either of these matters. It simply records, when allowing the appeal, that Mr Marino would have been entitled to an order for release but no longer needed it because he had by then been released. 10


Writing separately, William Young J held that he would determine the appeals in the same way as the majority but would also grant a declaration that Mr Marino was entitled to be released on a given date. He added an acknowledgement that the majority judgment had the same practical effect. 11

Overruling without retrospective effect

The declaratory theory of law holds that judges do not make law but rather discover what was always there to be found. This is a fiction which was formerly relied upon at common law to justify the retrospective effect of judicial decisions on settled transactions.


It is now uncontroversial that judges do make law and their decisions operate with retrospective effect upon the transaction before them and others that may have been entered in reliance on the law as it was. 12


But though the declaratory theory may be discredited, judges still make law retrospectively. The rationale now rests on the nature of the judicial function. Judges adjudicate disputes between parties, finding what happened in the past and deciding what consequences ought to follow in law. Were they to decide that the law they make would not apply retrospectively, they would be legislating for the future while deciding the case before them on a different basis. If the rationale for changing the law with non-retrospective effect is that people had transacted with one another in reliance on the former law, the Court's decision should also presumably be limited to transactions entered after the date of judgment, rather than to cases decided after that date. Courts may not be fully informed about the social effects and policy considerations that inform such choices.


A further reason for caution is that the rationale for non-retrospective overruling — the adverse effects of retrospective change in the law upon settled transactions — would seem to apply equally to judicial rulings on common law and statute law.


Attempts to find a middle ground raise other difficulties. For example, the instant case might be decided retrospectively, so rewarding the winning party for its investment in the litigation, but that is a decision taken for wider policy reasons and it is very likely to be unfair to the losing party for the same reasons that caused the court to make the new law non-retrospective for others. To overrule without retrospective effect then is to confront policy considerations that courts should engage with caution, recognising their institutional limitations, and should sometimes leave to the legislature.


For these reasons, final appellate courts have been circumspect about “prospective overruling”. (The term is a misnomer since the...

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2 cases
  • Kai Yip Cheung v R
    • New Zealand
    • Court of Appeal
    • 11 May 2021
    ...20 At [46]. 21 At [58]. 22 At [49]. 23 At [49]. 24 See the discussion in Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608 [2018] 2 NZLR 712 at [11]–[13] and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38 at [4]. 25 Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR ......
  • Kai Yip Cheung v R
    • New Zealand
    • Court of Appeal
    • 11 May 2021
    ...effect of such changes. 24 25 26 27 28 29 30 See the discussion in Chief Executive of the Department of Corrections v Gardiner [2017] NZCA 608 [2018] 2 NZLR 712 at [11]–[13] and Taylor v R [2018] NZCA 498, [2019] 2 NZLR 38 at Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7 at [130]. At [......

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