Attorney-General v Grinder - [2023] NZCA 596

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA23/2023
[2023] NZCA 596

BETWEEN	ATTORNEY-GENERAL First Appellant NEW ZEALAND PAROLE BOARD Second Appellant
AND	BRETT DAVID GRINDER Respondent

Hearing:	30 May 2023
Court:	Collins, Mallon and Wylie JJ
Counsel:	C A Griffin for First Appellant M S Smith and V J Owen for Second Appellant D A Ewen and E T Blincoe for Respondent S Thode and J W Wall for Criminal Bar Association of New Zealand as Intervener
Judgment:	24 November 2023 at 3 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe High Court decision is set aside.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Table of contents

Introduction [1]

Background [3]

Statutory provisions [10]

Parole Board decisions and review [19]

14 October 2021 decision [19]

27 January 2022 review [23]

High Court decision [26]

Subsequent Parole Board decision [29]

Discussion [36]

Submissions [36]

Analysis [38]

Result [54]

Introduction

This appeal concerns the correct test for determining whether, when a person subject to preventive detention is granted release on parole, any special conditions on which that release is granted may be varied or discharged. In particular, it concerns whether a special condition can only be maintained if, without that condition, the person will be an “undue risk” to the community.[1] It also concerns whether the purpose of special conditions is to take a parolee “from [an] undue risk to something less than that”.[2]
[1]Parole Act 2002, s 7(3).
[2]Grinder v New Zealand Parole Board [2022] NZHC 3188 [High Court judgment] at [47].
These issues arose in relation to the special conditions of Brett David Grinder, the respondent on this appeal. He remains subject to one of the special conditions that gave rise to the issues that are before us. The correct approach to these issues is important for the decision‑making of the New Zealand Parole Board (the Parole Board) beyond Mr Grinder’s case. For that reason, we heard from the Parole Board and the Criminal Bar Association of New Zealand Inc (CBANZ) as well as from counsel for Mr Grinder and the Attorney‑General (the parties who took an active role in the judicial review proceeding in the High Court that is subject to the appeal before us).[3]

Background

[3]The New Zealand Parole Board was a party to the judicial review proceeding in the High Court but, as the decision‑maker whose decision was being reviewed, it did not take an active part in that Court. On 17 January 2023 the Parole Board filed a notice of appeal against the High Court decision. The Attorney‑General filed a notice of cross‑appeal on 18 January 2023. In a minute dated 8 February 2023 Goddard J directed, by consent, that the appeal be case managed as a single appeal with the Attorney‑General as the lead appellant. The Criminal Bar Association of New Zealand was granted leave to intervene on this appeal.

Mr Grinder was sentenced to preventive detention in 2003 for sexual offending against…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Grinder

Details

AGLC: Attorney-General v Grinder [2023] NZCA 596
Case: [2023] NZCA 596
Decision Date: 24 November 2023 at 3 pm

CaseChat Overview and Summary

This appeal concerns the correct test for determining whether special conditions imposed on a person subject to preventive detention, who is granted release on parole, may be varied or discharged. In particular, it concerns whether a special condition can only be maintained if, without that condition, the person will be an “undue risk” to the community. It also concerns whether the purpose of special conditions is to take a parolee “from [an] undue risk to something less than that.” These issues arose in relation to the special conditions of Brett David Grinder, who remains subject to one of the special conditions that gave rise to the issues that are before the court. The appeal was heard from the Parole Board and the Criminal Bar Association of New Zealand Inc (CBANZ) as well as from counsel for Grinder and the Attorney-General. The Court found that the High Court was incorrect to treat decisions on release, recall and conditions as the same. The absence of “undue risk” from certain sections of the Parole Act is important. Undue risk is the test for release and recall decisions but the purpose of conditions is to reduce risk; and the correct approach to conditions is a proportionality analysis guided by s 7(2)(a) of the Parole Act, requiring that the condition have a rational nexus to the legislative purpose, and be reasonably necessary and proportionate when considered with the other conditions imposed. The appeal is allowed. The High Court decision is set aside. As Grinder is in receipt of a grant of legal aid, no order for costs is made.

Orders