Chisnall v The Attorney-General

• Jurisdiction: New Zealand
• Judge: Cooper J
• Judgment Date: 22 November 2021
• Neutral Citation: [2021] NZCA 616
• Docket Number: CA21/20
• Court: Court of Appeal

Between

Mark David Chisnall

Appellant/Cross-Respondent

and

The Attorney-General

First Respondent/Cross-Appellant

and

The Chief Executive, ARA Poutama Aotearoa Department of Corections

Second Respondent

[2021] NZCA 616

Court:

Cooper, Brown, Clifford, Gilbert and Collins JJ

CA21/20

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Bill of Rights, Criminal Sentence, — appeal against a High Court (“HC”) decision which declined to make a declaration that the extended supervision order and public protection order regimes awee inconsistent with various rights in the New Zealand Bill of Rights Act 1990 — cross-appeal by the respondent — retroactive penalties and double jeopardy

Counsel:

A J Ellis, B J R Keith and G K Edgeler for Appellant

D J Perkins and M J McKillop for First Respondent

No appearance for Second Respondent

• A The appeal is allowed.

• B The cross-appeal is dismissed.

• C Counsel are to confer about the form of declarations that should be made and file memoranda in accordance with [231] of this judgment.

• D Unless the Court orders otherwise, the Court will determine the form of the appropriate declarations on the papers.

• E The first respondent must pay the appellant costs for a complex appeal on a band B basis and usual disbursements. We certify for two counsel.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Cooper J)

Introduction	[1]
The appeal and cross-appeal	[11]
The role of the Court	[14]
Summary	[17]
The ESO regime	[19]
Eligibility for ESOs	[21]
Imposition of ESOs	[30]
Conditions of ESOs	[33]
Appeal, review and penalties	[38]
Evidence relating to ESOs	[45]
The PPO regime	[49]
Imposition of PPOs	[51]
Threshold for PPOs	[55]
Effect and conditions of PPOs	[59]
Prison detention orders	[70]
Review of PPOs	[72]
Evidence relating to PPOs	[77]
The High Court judgment	[79]
The ESO regime	[88]
The PPO regime	[95]
Outcome	[104]
The issues in this Court	[105]
Is an ESO a penalty?	[111]
When is s 26(2) of the Bill of Rights Act engaged?	[139]
Is a PPO a penalty?	[147]
Justification	[178]
Other rights	[227]
Result	[229]

Introduction

1 Under pt 1A of the Parole Act 2002 a sentencing court may make extended supervisions orders (ESOs). Such orders may be made in respect of offenders whose conduct has exhibited a pervasive pattern of serious sexual or violent offending, and who pose a high risk of committing such offending in the future. 1

2 Under the Public Safety (Public Protection Orders) Act 2014 (the PS (PPO) Act) the High Court may make a public protection order (PPO) if it is satisfied, on the balance of probabilities, that the threshold for a PPO has been met and there is a very

high risk of imminent serious sexual or violent offending once a person is released from prison into the community or, in any other case, left unsupervised. 2

3 Both statutory regimes have the purpose of protecting the public. In the case of ESOs the purpose stated in s 107I(1) of the Parole Act is “to protect members of the community from those who, following receipt of a determinate sentence, pose a real and ongoing risk of committing serious sexual or violent offences”. In the case of PPOs, s 4(1) of the PS (PPO) Act states that the Act's objective is “to protect members of the public from the almost certain harm that would be inflicted by the commission of serious sexual or violent offences”.

4 These purposes are sought to be achieved by very significant restrictions on the rights of those subject to the orders. In the case of ESOs there are standard conditions requiring the person to report to a probation officer who may exercise control in relation to the person's place of residence, employment, associates and contacts. 3 Additional restrictions may also be imposed as special conditions. 4

5 The consequence of a PPO is to require the person against whom it is made to stay in the residence that the Chief Executive of the Department of Corrections (the Chief Executive) designates by written notice. 5 The resident must comply with every lawful direction given by the residence manager or a staff member, corrections officer or police employee. 6 Written communications may be checked and withheld, 7 items intended for the person may be inspected, 8 telephone calls may be monitored, 9 and residents may be searched. 10 Residents may be placed in seclusion and restrained. 11

6 On the application of the Chief Executive, the High Court may also order that a person subject to a PPO be detained in prison instead of at a residence. 12 Such an order may be made if detention or further detention in a residence would pose an unacceptably high risk, whether to the person subject to the order or others, such that the person cannot be safely managed in the residence. 13 A person subject to a prison detention order is treated in the same way as a prisoner who is remanded in custody. 14

7 The appellant Mr Chisnall has a history of serious sexual offending. He was due for release from custody on 27 April 2016, having served a sentence of 11 years' imprisonment for two convictions of sexual violation by rape. However, on 15 April 2016 the Chief Executive applied for a PPO or, as an alternative, an ESO. An interim detention order was granted on 22 April 2016, under s 107 of the PS (PPO) Act. 15 An appeal to this Court against the interim detention order was dismissed on 19 December 2016. 16 Leave to appeal to the Supreme Court was granted, 17 but the appeal was dismissed. 18

8 Mr Chisnall sought declarations in the High Court that the PPO and ESO regimes are inconsistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). The orders sought were as follows:

• 1. Declaring that section 13(1) of the Public Safety (Public Protection Orders) Act is inconsistent with section 26(1) of the New Zealand Bill of Rights Act, as informed by Articles 15 and 26 of the International Covenant on Civil and Political Rights.

• 2. Declaring that section 13(1) of the Public Safety (Public Protection Orders) Act is inconsistent with section 26(2) of the New Zealand Bill of Rights Act, as informed by Articles 14(7) and 26 of the International Covenant on Civil and Political Rights.

• 3. Declaring that the manner and method of obtaining information for a psychological report in support of the application for a public protection order breached, and the making of a public protection order against

  Mr Chisnall would breach, his rights under sections 9, 18, 22, 23(5), 24(e) 25(a), (c) and (d), and 27 of the New Zealand Bill of Rights Act 1990, as informed by Articles 9, 10, 12, 14, and 26 of the International Covenant on Civil and Political Rights.

• 4. Declaring that section 107I(2) of the Parole Act 2002 is inconsistent with section 26(1) of the New Zealand Bill of Rights Act, as informed by Articles 15 and 26 of the International Covenant on Civil and Political Rights.

• 5. Declaring that section 107I(2) of the Parole Act 2002 is inconsistent with section 26(2) of the New Zealand Bill of Rights Act, as informed by Articles 14(7) and 26 of the International Covenant on Civil and Political Rights.

• 6. Declaring that the manner and method of obtaining information for a psychological report in support of the application for an extended supervision order breached, and the making of a public protection order against Mr Chisnall would breach, his rights under sections 18, 22, 23(5), 25(a), (c) and (d), and 27 of the New Zealand Bill of Rights Act 1990, and Articles 9, 10, 12, 14, and 26 of the International Covenant on Civil and Political Rights.

9 In the judgment giving rise to this appeal Whata J concluded that s 107I(2) of the Parole Act is inconsistent with s 26(2) of the Bill of Rights Act insofar as it applies retrospectively. 19 Section 26(2) provides, amongst other things, that no one who has been finally convicted of an offence shall be tried or punished for it again. After receiving further submissions from the parties, the Judge made the following declaration: 20

Section 107C(2) of the Parole Act 2002 is inconsistent with section 26(2) of the New Zealand Bill of Rights Act 1990, to the extent that it permits the retrospective application of section 107I(2) of the Parole Act 2002.

10 He declined to make any other declaration. After Mr Chisnall made the application for a declaration of inconsistency, a PPO was made against him on 14 December 2017. However, his appeal to this Court against the order was successful, and the matter was remitted to the High Court. 21 Following the High Court's reconsideration of the Chief Executive's application, a final PPO against Mr Chisnall was made on 27 January 2021. 22

The appeal and cross-appeal

11 Mr Chisnall now appeals. He claims that the High Court should have held that both s 107I(2) of the Parole Act and the PS (PPO) Act are inconsistent with s 26(2) of the Bill of Rights Act regardless of when the person to whom an ESO or PPO is applied committed the qualifying offence. He also submits that the High Court should have made declarations that both the ESO and PPO regimes are inconsistent with ss 9, 18, 22, 23(5), 25(a), (c) and/or (d) and 27(1) of the Bill of Rights Act. Those provisions affirm rights not to be subjected to torture or to cruel, degrading or disproportionately severe treatment or punishment (s 9); to freedom of movement (s 18); not to be arbitrarily arrested or detained (s 22); to be, when deprived of liberty, treated with humanity and respect for the inherent dignity of the person (s 23(5)); to certain minimum standards of criminal procedure (s 25); and to natural justice (s 27(1)).

12 The Attorney-General cross-appeals. He submits that the High Court...