Chief Executive of the Department of Corrections v Chisnall

[2021] NZHC 32

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-756

[2021] NZHC 32

BETWEEN

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Applicant

AND

MARK DAVID CHISNALL

Respondent

Hearing:	16-20 November 2020
Appearances:	B D Tantrum and C G McDiarmid for the Applicant T Ellis and G Edgeler for the Respondent (via VMR)
Judgment:	27 January 2021

JUDGMENT OF GORDON J

This judgment was delivered by me on 27 January 2021 at 4 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Crown Solicitor, Auckland Counsel:  G Edgeler, Wellington

A Ellis, Wellington

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS v CHISNALL [2021] NZHC 32

[27 January 2021]

CONTENTS

Introduction  [1]

Background  [4]

Procedural background  [5]

Scope of hearing  [9]
The Public Safety Act  [15]

The correct approach  [22]
What is in issue?  [25]

The evidence  [30]

Admissibility of case notes  [35]

Was there informed consent to the interviews with the health assessors? [38] Use of protected communications or privileged communications  [63] Section 3, NZBORA  [67]

Advice of right to a lawyer  [81]
Freedom of thought and expression  [107]

Discrimination  [117]

Section 4, NZBORA  [134]

Section 13(2)–assessment of severe disturbance in behavioural functioning [141] Intense drive or urge to commit a particular form of offending (s 13(2)(a)) [148] Conclusion on intense drive  [160]

Limited self-regulatory capacity evidenced by: general impulsiveness; high- emotional reactivity; and inability to cope with, or manage, stress and

difficulties (s 13(2)(b))  [161]
Conclusion on limited self-regulatory capacity  [169]
Absence of understanding or concern for the impact of his offending on actual
or potential victims (s 13(2)(c))  [170]

Conclusion on absence of understanding of effects on victims  [178] Poor interpersonal relationships or social isolation or both (s 13(2)(d)) [179] Conclusion on poor interpersonal relationships or social isolation  [187] Conclusion on s 13(2)  [188]

Section 13(1) – assessment of very high risk of imminent serious sexual offending       [189]

Imminence and suitable opportunity  [190]
The evidence of the health assessors  [199]

Actuarial measures  [200]

Additional risk factors  [220]

Other behaviours  [221]

Clinical judgment  [223]
Conclusion on s 13(1)  [231]

Discretion  [233]

Another option?  [249]

Result  [255]

Introduction

[1]                  On 15 April 2016, the Chief Executive of the Department of Corrections (the Chief Executive) applied for a public protection order (PPO) against the respondent, Mark Chisnall, under s 8 of the Public Safety (Public Protection Orders) Act 2014 (the Public Safety Act); or  alternatively for  an extended supervision order (ESO) under  s 107I of the Parole Act 2002, with an intensive monitoring condition (s 107IAC) and with interim special conditions (s 107IA) until an application for special conditions can be considered by the New Zealand Parole Board.

[2]                  A PPO was made by the High Court on 14 December 2017.1 In a judgment dated 23 October 2019,2 the Court of Appeal quashed the PPO and directed that the application for a PPO be reconsidered by this Court.

[3]                  Mr Chisnall adopts the same position as in the previous hearing in this Court. He opposes the making of a PPO but does not oppose the application for an ESO. He would also consent to an intensive monitoring condition and the interim special conditions sought by the Chief Executive in relation to the ESO (save for an amendment to one condition).

Background

[4]                  Mr Chisnall’s background was discussed by the Court of Appeal in its judgment on an appeal against an earlier decision of this Court making an interim detention order (referred to in procedural background below).3 No issue was taken at the hearing with the summary. It is as follows:

[3]        Mr Chisnall was born on 5 March 1986. The various reports that we will refer to in due course show that he had a troubled background. His mother found him to be a very difficult child and Mr Chisnall alleges that he suffered physical abuse as a child. He was described in the reports as being aggressive through kindergarten and school with regular involvement in assaults. He had learning difficulties. There were issues with drugs and he has been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). There is also a

1      The Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120 [First High Court decision].

2      Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 [Substantive appeal].

3      Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 [Interim Detention Order (CA)].

reference in the reports to an occasion of a very serious assault on his mother when Mr Chisnall broke her jaw and tried to strangle her. The reports disclose that when he was 10 he watched a pornographic movie in which women were raped and killed, which led to an interest in movies depicting rape and violence. Mr Chisnall has reported that he was sexually preoccupied from that age.

[4][redacted]

[5][redacted]4

[6]        While he was on bail for those offences he was convicted and discharged for assaulting a 20-year-old female stranger. The victim reported that Mr Chisnall had said to her “you are coming with me” and when she said no he hit her on the head with a stick. She managed to run away and find help. Mr Chisnall has consistently denied this attack had a sexual intent, and he was not formally charged with a sexual offence.5 In 2004 when Mr Chisnall was living with caregivers, he admitted to them that he had been peeping and peering at a woman in a hotel room. He reported experiencing anger and sexual preoccupation that led to his offending.

[7]        In 2005 when Mr Chisnall was aged 18 he had been waiting by a park to be collected to go to work. He saw a woman in her early 20s running past him. He grabbed the victim from behind and, using physical force to silence her, attempted to force her to perform oral sex. When she refused Mr Chisnall became enraged and twisted her head forcing her to submit. He then raped her. She was left traumatised and injured. Mr Chisnall has acknowledged this offending and he says that he was stimulated by the violence involved. He pleaded guilty to this offending and was sentenced by Miller J to eight years’ imprisonment, a sentence which took into account his guilty plea and youth. The Judge refused a Crown request that he be sentenced to preventive detention. He also declined to make a compulsory care order under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the Intellectual Disability Act).

[8]        In the course of Mr Chisnall’s 11 years in prison there have been reported incidents of violence. He has attended various programmes. There have been some positive references but the reports also indicate continuing threatening and aggressive behaviour and sexual fixations. …

4      After the judgment was issued to the parties, Mr Edgeler for Mr Chisnall requested that [4] and

[5]     above, from the judgment of the Court of Appeal, be redacted on the basis that Mr Chisnall has permanent name suppression in relation to the matters referred to in [4] and [5]. This request was made notwithstanding the fact that there are no suppression orders in relation to the Court of Appeal judgment. Mr McDiarmid, counsel for the Chief Executive advised that Corrections is unaware of any such suppression orders. But absent further clarification, he does not take issue with the redactions suggested. They are made accordingly.

5      As noted by Elias CJ in Chisnall v The Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] NZLR 83 at [66], on the appeal from the decision of the Court of Appeal upholding the decision of the High Court making an interim detention order, Dr Wilson, a witness, considers the motive was likely to have been sexual. I also add that the Police summary of facts on which Mr Chisnall was sentenced, as edited by hand, reads: “Police located Mark whereby he claimed that when he saw the victim in the park and assaulted her he wanted to do “my business with her” meaning that his intentions were of a sexual nature”.

Procedural background

[5]    Mr Chisnall’s finite sentence came to an end on 27 April 2016. As noted above, on 15 April 2016 the Chief Executive applied to this Court for a PPO or, in the alternative, an ESO against Mr Chisnall. At the same time the Chief Executive sought interim orders for Mr Chisnall’s detention until the substantive applications could be determined.

[6]    On 22 April 2016, Fogarty J made an interim order under s 107 of the Public Safety Act authorising Mr Chisnall’s interim detention in a four bedroom villa within the Leimon Villas self-care unit inside the perimeter fence of Christchurch Men’s Prison.6 The order was subsequently varied by consent to allow Mr Chisnall to be accommodated in a purpose-built facility, Matawhāiti, for those subject to a PPO, which is also inside the perimeter fence of Christchurch Men’s Prison. Mr Chisnall continues to live in Matawhāiti.

[7]    Mr Chisnall appealed to the Court of Appeal against the interim detention order of Fogarty J. In a judgment dated 19 December 2016, the Court of Appeal dismissed Mr Chisnall’s appeal.7 Mr Chisnall then appealed with leave to the Supreme Court which also dismissed his appeal.8

[8]    As well as opposing the Chief Executive’s application for a PPO, Mr Chisnall applied for declarations of inconsistency with various rights affirmed by the New Zealand Bill of Rights Act 1990 (NZBORA) in respect of the regimes for PPOs and ESOs. In his decision of 28 November 2019, Whata J declined to make a declaration of inconsistency in relation to PPOs, but considered that a retrospective ESO was not a reasonable limit pursuant to s 5 of NZBORA.9 In his judgment (No 2) of 17 March 2020, Whata J made a declaration consequent upon his decision regarding inconsistency where there is retrospective application of s 107I(2) of the Parole Act.10

6      Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796 [Interim Detention Order (HC)].

7      Chisnall v Chief Executive of the Department of Corrections, above n 3.

8      Chisnall v Chief Executive of the Department of Corrections, above n 5.

9      Chief Executive of the Department of Corrections v Chisnall [2019] NZHC 3126 [NZBORA inconsistency decision (HC)].

10     Chief Executive of the Department of Corrections v Chisnall [2020] NZHC 243 [NZBORA inconsistency decision (No 2) (HC)].

That judgment is presently under appeal. The Court was told that appeal, and a cross- appeal by the  Attorney-General,  were  to  be  heard  by  the  Court  of  Appeal  on  1 December 2020.

Scope of hearing

[9]    In the Chief Executive’s written submissions filed in advance of the hearing, the Court was requested to deal with the Chief Executive’s two applications simultaneously or consecutively within the same hearing without the need for a separate hearing on the ESO application. The written submissions noted that the evidence to be relied upon was the same for both applications. However, s 107GAA of the Parole Act provides that the Court must not hear the application for an ESO until the proceeding on the PPO application has been completed, and the Court has declined to make a PPO.11

[10]   In oral submissions both Mr Tantrum, for the Chief Executive, and Mr Ellis, for Mr Chisnall, agreed with my view that I could not hear submissions on the ESO application at the hearing. However, having regard to Mr Chisnall’s position that he would consent to an ESO with an intensive monitoring condition and with interim conditions as proposed by the Chief Executive (save for an amendment to one condition), it was agreed that any hearing on the ESO application, should I decline to make a PPO, would be very short. As noted in [9] above, the Chief Executive relies on the same evidence for both applications. It seemed likely that the only issue between the parties would be the length of the term of any ESO.

[11]   The provisions of s 107GAA sit rather awkwardly with the approach the Court is required to adopt when hearing an application for a PPO where there is an application in the alternative for an ESO. In its decision on the substantive appeal, the Court of Appeal referred to the judgment of Elias CJ on the appeal against the interim order. The Chief Justice made it clear that the Court should scrutinise the possibility of making an ESO before making a PPO:12

11     Section 107GAA(2)(b)(i).

12     Chisnall v Chief Executive of the Department of Corrections, above n 5, at [37]-[38]. The majority agreed with the Chief Justice on this issue at [83].

[37]      I accept the further submission made on behalf of Mr Chisnall that the Public Safety Act requires the court in making an interim detention order under the Act to be satisfied on the balance of probabilities not only that the statutory criteria for making a public protection order have been provisionally made out but that the risk to public safety cannot be sufficiently met by less restrictive options to interim detention. …

[38]      The availability of extended supervision orders and interim supervision orders as alternative means of monitoring risk is a factor that bears on whether the more restrictive public protection order (and interim detention order pending its determination) is appropriate. The policy of the Public Safety Act expressed in its purpose and the principles contained in s 5 emphasise that orders made under it are not punitive and are directed at public safety. The high threshold set by the legislation for public protection orders and the availability of less intrusive means of protecting public safety in orders under the Parole Act indicate a legislative scheme that the “very high risk of imminent serious sexual or violent offending by the respondent” is risk which cannot be acceptably managed by conditions under an extended supervision order or interim supervision order. The Public Safety Act is to be interpreted and applied in the context of human rights obligations protective of liberty and suspicious of retrospective penalty.

(citations omitted)

[12]The Court of Appeal then said:13

[42] It follows, therefore, that where the High Court is considering a substantive application for a PPO, a similar approach is to be taken. That is, the Court is to consider the alternative of an ESO. That it must do so indicates that, notwithstanding that the risk threshold for a PPO has been established, the statutory scheme envisages that the Court could be satisfied that the (lesser) controls provided by an ESO may nevertheless be sufficient to manage that risk.

[13]   For that reason, it was necessary to hear evidence from two witnesses for the Chief Executive about the operation of two ESO facilities.

[14]   I also heard evidence and submissions as to the interim special conditions that the Chief Executive would seek under s 107IA of the Parole Act, were I to make an ESO, pending the hearing by the Parole Board of an application for special conditions. Additionally I heard from counsel for Mr Chisnall both as to whether Mr Chisnall would agree with those interim conditions and whether he would agree with those conditions being imposed by the Parole Board as special conditions under s 107K of the Parole Act.

13     Chisnall v Chief Executive of the Department of Corrections, above n 2.

The Public Safety Act

[15]   The objective of the Public Safety Act 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.14 It is not an objective of the Public Safety Act to punish persons against whom orders are made.15

[16]The principles are set out in s 5:

5        Principles

Every person or court exercising a power under this Act must have regard to the following principles:

(a)orders under this Act are not imposed to punish persons and the previous commission of an offence is only 1 of several factors that are relevant to assessing whether there is a very high risk of imminent serious sexual or violent offending by a person:

(b)a public protection order should only be imposed if the magnitude of the risk posed by the respondent justifies the imposition of the order:

(c)a public protection order should not be imposed on a person who is eligible to be detained under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:

(d)persons who are detained in a residence under a public protection order should have as much autonomy and quality of life as possible, while ensuring the orderly functioning and safety within the residence.

[17]   There is a threshold which must be met before a PPO can be made. Section 7 relevantly provides:

7        Threshold for imposition of public protection order

(1)A person aged 18 years or older meets the threshold for the imposition of a public protection order if—

(a)the person—

(i)is detained in a prison under a determinate sentence for a serious sexual or violent offence; and

(ii)must  be  released  from  detention  not  later  than   6 months after the date on which the chief executive

14     Public Safety (Public Protection Orders) Act 2014, s 4(1).

15     Section 4(2).

applies for a public protection order against the person; or

…

(2)For the purposes of this Act, a person meets the threshold for a public protection order if the person meets the threshold at the time that the chief executive applies for that order against the person.

[18]   The Chief Executive may apply to the High Court for a PPO against a person who meets the threshold in s 7 on the ground that there is a very high risk of imminent serious sexual or violent offending by the person.16

[19]   An application under s 8 must be accompanied by at least two reports that have been separately prepared by health assessors,17 at least one of whom is a registered psychologist.18 The reports must address the question whether the respondent exhibits to a high level each of the four characteristics described in s 13(2); and whether there is a very high risk of imminent serious sexual or violent offending by the respondent.19

[20]   The Court may, on its own initiative, direct a health assessor, selected by the Court, to assess the respondent.20 The respondent may request a health assessor, selected by the respondent, to assess the respondent.21

[21]The power of the Court to make a PPO is contained in s 13 which provides:

13       Court may make public protection order

(1)After considering all of the evidence offered in a proceeding on an application for a public protection order, and, in particular, the evidence given by 2 or more health assessors, including at least 1 registered psychologist, the court may make a public protection order against the respondent if the court is satisfied, on the balance of probabilities, that—

(a)the respondent meets the threshold for a public protection order; and

16     Section 8(1).

17     Defined in s 3 as a health practitioner who is a medical practitioner practising as a psychiatrist or a registered psychologist.

18     Section 9(a).

19     Section 9(b)(i) and (ii).

20     Section 10(1).

21     Section 10(s).

(b)there is a very high risk of imminent serious sexual or violent offending by the respondent if,—

(i)where the respondent is detained in a prison, the respondent is released from prison into the community; or

(ii)in any other case, the respondent is left unsupervised.

(2)The court may not make a finding of the kind described in subsection (1)(b) unless satisfied that the respondent exhibits a severe disturbance in behavioural functioning established by evidence to a high level of each of the following characteristics:

(a)an intense drive or urge to commit a particular form of offending:

(b)limited self-regulatory capacity, evidenced by general impulsiveness, high emotional reactivity, and inability to cope with, or manage, stress and difficulties:

(c)absence of understanding or concern for the impact of the respondent’s offending on actual or potential victims (within the general sense of that term and not merely as defined in section 3):

(d)poor interpersonal relationships or social isolation or both.

The correct approach

[22]   The Court of Appeal, in the substantive appeal, concluded that the evidence adduced in the High Court did not undermine the conclusion as to Mr Chisnall’s very high risk of imminent serious sexual offending that had been reached in the context of the interim detention order.22 The Court of Appeal also agreed, for the reasons given in the first High Court decision, and by each Court in the interim order proceedings, that were Mr Chisnall to be released unsupervised into the community, there would be a very high risk of imminent serious sexual offending by him.23

[23]   The Court then turned to the exercise of the discretion by the High Court Judge and his assessment of whether he should make a PPO. In that context, the possibility of Mr Chisnall being subject, in the first instance, to an ESO combined with intensive monitoring for the statutory maximum period of 12 months was considered by the Judge. The Court referred to the Judge’s assessment that there could be no guarantee

22     Chisnall v Chief Executive of the Department of Corrections, above n 2, at [30].

23 At [32].

that Mr Chisnall would respond to any treatment he might receive during the 12-month period. The Court also referred to the Judge’s finding that conditions which could subsequently be imposed under an ESO would not protect against further offending to the same extent as an intensive monitoring condition. On that basis the Judge considered the imposition of a PPO was appropriate.

[24]   The Court of Appeal held this was to approach the question in the wrong way, saying:24

[38]   … The question is not whether, at the end of the 12-month period,    Mr Chisnall’s position would be such that his risk would at that point be able to be managed by an ESO with the then available special conditions, which would be less stringent than intensive monitoring. Rather the question is, as we think the Supreme Court’s decision shows, whether for that 12-month period Mr Chisnall’s risks could not be properly managed by an ESO with an intensive monitoring condition.

What is in issue?

[25]I first set out what is not in issue. Mr Chisnall accepts:

(a)the technical threshold in s 7(1)(a) of the Public Safety Act  is  met: Mr Chisnall is over 18; he was detained in prison under a qualifying sentence; and was due for release within six months of the Chief Executive’s applications being brought; and

(b)the secondary threshold in s 13(2) of the Public Safety Act is also met. Mr Ellis, for Mr Chisnall, notes this was subject to evidential dispute at the first High Court hearing, and also challenged in the Court of Appeal in the substantive appeal. Mr Ellis says that given the standard of proof on the balance of probabilities and the lack of contrary evidence, the findings in the first High Court decision cannot realistically be disturbed at present.25

24 Chisnall v Chief Executive of the Department of Corrections, above n 2, at [38].

25 Mr Ellis adds the caveat that as this is a point-in-time assessment, no concession is made this will always be the case, and future hearings on reviews of PPOs or ESOs may see this question arise anew.

[26]   The position on behalf of Mr Chisnall is that the principal issues for determination relate to the assessment in s 13(1) of the Public Safety Act: whether there is a very high risk of imminent serious sexual or violent offending. Mr Ellis submits that while Mr Chisnall cannot say there is no or low risk, he does say that:

(a)there is not a very high risk (or even a high risk) of serious sexual reoffending; and

(b)such risk that there is, is not an imminent risk.

[27]   Mr Ellis also submits that even if the Court’s assessment is that Mr Chisnall does meet the threshold of being a very high and imminent risk, that risk can be properly managed by an ESO with intensive monitoring. A PPO cannot therefore be justified.

[28]   In the course of cross-examination Mr Ellis raised new matters that I apprehend were not raised in the first High Court hearing. Mr Ellis did not make submissions on these issues in his closing submissions but it is necessary to address them given they were raised in evidence:

(a)Whether the case notes on Mr Chisnall’s Matawhāiti file are admissible

(an objection was raised during the evidence);

(b)Whether Mr Chisnall gave informed consent to being interviewed by the health assessors; and

(c)Related to (b), whether Mr Chisnall gave informed consent to the health assessors using “protected communications” or “privileged information” in the preparation of their reports.

[29]Mr Ellis raised further new matters on which submissions were made:

(a)The right to a lawyer was not given full recognition by the health assessors;

(b)Similarly the right of freedom of thought (s 13, NZBORA) and the connected right of freedom of expression (s 14, NZBORA) were not given full recognition by the health assessors. As a consequence the evidence derived from questions during the assessments relating to these two rights should be severed from the reports;

(c)Section 13 of the Public Safety Act is discriminatory because it can only be satisfied by persons who have a disability (relying on the Statutes of Westminster the First 1275)(Statutes of Westminster) leading to discrimination and arbitrary detention; and

(d)The Court should decline to apply the Public Safety Act by virtue of s 4 of the NZBORA.

The evidence

[30]   Six health assessors, five of whom are registered psychologists and one a psychiatrist, provided reports and gave evidence at the hearing. The five psychologists were called as witnesses by the Chief Executive and the psychiatrist, Dr Justin Barry- Walsh, was directed by the Court to provide reports.26 Three of the registered psychologists prepared reports containing their assessments for the first hearing and they did not prepare new assessments for this hearing. However each of them was (mostly) present during the evidence of the other witnesses (or had received the notes of evidence for any parts where they were not present) and they gave oral evidence at the hearing. Those witnesses were Margaret-Anne Laws (reports dated 28 August 2015 and 22 November 2017); Dr Nick Wilson (reports dated 22 March 2016, 11 April 2017 and 23 November 2017); and Stephen Berry (reports dated 11  March 2016,     6 June 2017 and 21 November 2017).

26 In Chisnall v Chief Executive of the Department of Corrections [2017] NZCA 248, the Court of Appeal made an order pursuant to s 10(1) of the Public Safety Act for the purpose of the first High Court hearing. A Judge of this Court made an order by minute dated 17 August 2020, also pursuant to s 10(1), that Dr Barry-Walsh provide a further report for this hearing.

[31]   There were two new witnesses  for  this  hearing:  registered  psychologists Dr Francis Vertue (report dated 10 April 2020) and Dr Stephanie Fisher (report dated 8 May 2020).

[32]Dr Barry-Walsh’s reports are dated 5 September 2017 and 6 November 2020.

[33]   All the health assessors were cross-examined. Mr Chisnall did not give or call evidence although he did attend the hearing by audio-visual link.

[34]   I will address first the issues referred to in [28] and [29] above, as my determination on each of those issues may dictate what evidence is available for the  s 13 assessment.

Admissibility of case notes

[35]   The health assessors referred to case notes made by staff at Matawhāiti regarding Mr Chisnall’s conduct at various times and incidents that had occurred involving him. Mr Ellis objected to those references on the basis that the evidence was hearsay, as the staff members who made the case notes were not called as witnesses.

[36]   Section 108 of the Public Safety Act provides that in a proceeding under the Act, a Court may receive as evidence any statement, document, information, or matter that it considers relevant, whether or not it would be otherwise admissible in a court of law. Section 108 is subject to subpart 8 of Part 2 of the Evidence Act 2006 (privileged communications) and any rule of law governing legal professional privilege.

[37]   Mr Chisnall’s conduct during his time as a resident of Matawhāiti is highly relevant to the risk assessment I must make. In the absence of any submissions as to why I should not apply s  108  on  its  clear  terms,  I  consider  the  case  notes on Mr Chisnall’s file at Matawhāiti are admissible, as is the evidence of the health assessors where they refer to those case notes.

Was there informed consent to the interviews with the health assessors?

[38]   The Court understands that prior to his interview with each of the psychologists (except Ms Laws whose assessment was for an ESO), Mr Chisnall received three Department of Corrections documents containing information about PPOs. One is entitled “General Information”; the second, “Your rights and the rights of the victims of your offending”; and the third “What you can expect”.  The Court understands  Mr Chisnall was also provided in advance of the interviews the consent forms he later signed in the presence of each psychologist. That form was discussed by each health assessor at the commencement of the interview. The three information sheets and the consent form are relatively lengthy. Rather than attempting to summarise them, they are annexed to this judgment: the three information sheets first and then the consent form.

[39]   Mr Ellis relies on right 6, the right to be fully informed, of the Code of Health and Disability Services Consumer Rights. Right 6(2) provides:

(2)Before making a choice or giving consent, every consumer  has the   right to the information that a reasonable consumer, in that consumer’s circumstances, needs to make an informed choice or give informed consent.

[40]   As to Mr Chisnall’s circumstances, it was not argued that he was mentally disordered or intellectually disabled, but his level of functioning was addressed in evidence. Under cross-examination Dr Vertue said:

… the intellectual deficits that he has are of a very specific nature. He does not have an intellectual disability as one would understand, a global intellectual deficit. His listening comprehension is measured by me in the average range which suggests that he understands written language; that his cognitive deficits are very specific.

[41]   Dr Vertue referred to an assessment by a registered clinical psychologist, Sabine Visser, whose report was before the Court in the first High Court hearing:

“Mr Chisnall’s intellectual functioning fell within the range of scores that crosses a border between low-average and borderline.” That writer says Mr Chisnall’s adaptive functioning is falling within the intellectually disable [sic] range. So, adaptive function is one’s ability on a day-to-day care basis to take care of yourself, to take care of the tasks that people do in their everyday lives. The writer’s conclusion was: “Mr Chisnall did meet criteria for intellectual disability as prescribed by the DSM 5”, which is the most recent addition [sic]

which focuses on adaptive functioning. It doesn’t focus on IQ but by the criteria prescribed by the IDCCR Act 2003 he does not meet criteria for an intellectual disability. So, my understanding of Mr Chisnall’s cognitive difficulties are not that he has a global intellectual delay or deficit.

[42]   Dr  Vertue  summarised  all  of  that  by  noting  that  Ms  Visser  said  that  Mr Chisnall’s intellectual and cognitive functioning crosses a borderline between low average and borderline. She noted it is not in the intellectually disabled range.

[43]   Against that background I summarise the evidence of the health assessors regarding the obtaining of consent from Mr Chisnall for their interviews.

[44]   First, Ms Laws. Her interview was for the application for an ESO. The three annexed information sheets are therefore not relevant. The consent form she used was slightly different from the form annexed. In her report she says that Mr Chisnall was informed the assessment would be based on Department of Correction’s file information, including psychological reports, as well as interviews with staff involved in his care and supervision. She says he was asked to consent to an interview as part of her assessment and was provided with comprehensive details on the implications of an ESO and the use of psychometric instruments in the assessment.

[45]   She said Mr Chisnall was attentive during her explanation of the assessment procedure and the use of psychometric instruments. She says that given Mr Chisnall’s previously assessed low cognitive abilities, her process was undertaken with the assistance of a psychologist to ensure that Mr Chisnall fully understood the purpose of the health assessment and the implications of being placed on an order. She said Mr Chisnall had previously been assessed as “fit to plead” and having a basic understanding of the Court process. She said this supported her view that he was capable of providing consent to engage in the assessment interviews.

[46]   She says the consent form was reviewed in sections and Mr Chisnall’s understanding was assessed at each juncture. She said he demonstrated that he was aware of the purpose of the assessment and its implications and was able to compare the current process with previous assessments which had considered his suitability for placement under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. She said that although he was not formally tested, Mr Chisnall appeared

oriented to time and place and there was no apparent evidence of current thought or mood disorder.

[47]Ms Laws did not interview Mr Chisnall again for her second report.

[48]   Under cross-examination Ms Laws confirmed she read through the consent form with Mr Chisnall. As is her practice, she elicited his understanding of what they were discussing as they went through the form. She said she further bore in mind that people with intellectual disabilities may have the desire to answer questions either with “yes” or “no” so they do not appear “stupid” (using Mr Ellis’ word in his question).

[49]   Dr Wilson’s evidence was that Mr Chisnall was informed that the assessment would be based on Department of Corrections file information, including psychological reports as well as interviews with staff involved in his care and supervision. He said Mr Chisnall was provided with comprehensive details on the implications of a PPO and the potential use of psychometric instruments before being asked to consent to being interviewed. He said he went to “quite a lot of effort” to ensure that Mr Chisnall had the consent form and “the package” before he came to see him. He said Mr Chisnall was attentive and displayed insight during the explanation of the health assessment procedure.

[50]   Given Mr Chisnall’s previously assessed low cognitive ability, Dr Wilson said a number of additional processes were put in place to ensure informed consent. For example, with Mr Chisnall’s consent, a person who was employed as a programme facilitator in the unit where he was resident, and with whom he had a trusting relationship, was present for the explanation of the PPO and what informed consent involved. Dr Wilson said the facilitator also met with Mr Chisnall on a number of occasions prior to the assessment interview to assist him in reading the supplied PPO material.

[51]   Dr Wilson’s evidence was that he spent approximately 45 minutes ensuring Mr Chisnall understood the implications of the PPO assessment. He said during this discussion, Mr Chisnall displayed a good understanding of the implications of the

assessment. Mr Chisnall understood that if an order was granted he would likely be required to live in a specially built residential facility on prison grounds and also that the assessment was based on risk of serious sexual or violent offending. Mr Chisnall asked pertinent questions, for example questioning whether, now he had a release date from the New Zealand Parole Board, he would stay in prison while the PPO was being considered. He also provided an accurate meaning of imminence, which he explained as “happening soon”.

[52]   Prior to the preparation of his second report of 11 April 2017, Dr Wilson said he was informed by the Residence Manager that, after receiving the letter asking for an interview, Mr Chisnall was keen to take part. However, immediately prior to the scheduled contact date, Dr Wilson was advised that Mr Chisnall was no longer open to participation in the interview. Dr Wilson said that Mr Chisnall agreed, when he visited Matawhāiti on 16 March 2017, to listen to an explanation of why a further interview was requested. Dr Wilson says Mr Chisnall was in a happy mood, was attentive and displayed insight during the explanation of the health assessment procedure. Mr Chisnall said he had spoken with his lawyer again on the morning of 16 March 2017 before seeing Dr Wilson and that his lawyer had advised him not to take part and he therefore did not consent to the interview.

[53]   Dr Wilson did not seek to interview Mr Chisnall further for his third report of 23 November 2017.

[54]   Mr Berry similarly told Mr Chisnall prior to being asked to consent to an interview what the assessment would be based on, the implications of a PPO and the potential use of psychometric instruments. He said Mr Chisnall impressed as being capable of providing consent to engage in the assessment interviews. Mr Berry did not re-interview Mr Chisnall for his second and third reports.

[55]   Under cross-examination, Mr Berry said he and Mr Chisnall read the consent form together. Mr Berry recalled being surprised because he had information that  Mr Chisnall had an intellectual disability. Mr Berry was prepared for an elongated and slow process to complete the consent form. But, Mr Berry said, Mr Chisnall

clearly did not present with an intellectual disability and the process of gaining consent was relatively smooth. There was good rapport between them.

[56]   Dr Vertue interviewed Mr Chisnall on 9 January 2020. The interview continued on 17 January 2020. At the outset of her first interview, being aware of  Ms Visser’s assessment of Mr Chisnall’s cognitive abilities, Dr Vertue performed three informal tests to assess his reading ability. Mr Ellis was somewhat critical of Dr Vertue in cross-examination in that she performed those tests prior to going through the consent process. But, Dr Vertue said, she could just as easily have asked Mr Chisnall to read a page of writing to see how well he could read. As a result of her findings on those informal tests, Dr Vertue decided to read the consent forms to Mr Chisnall and discuss their implications rather than have him read them himself.

[57]   She explained, in terms similar to those described by Dr Wilson above, what the assessment would be based on. Dr Vertue said Mr Chisnall was able to present in his own words a list of possible advantages and disadvantages in engaging in the assessment interviews as well as his understanding of the reason for the current assessment. He also provided his understanding of the implications for himself of an ESO and a PPO.

[58]   Under cross-examination, Dr Vertue estimated that of the two hours taken for the interview on 9 January 2020, she took at least half an hour to explain the consent form. She said she puts “enormous store” by the consent process, so she tends to take as long as is required. Further, under cross-examination in relation to any explanation of the implications of the making of a PPO, she said Mr Chisnall told her that he knew what that meant because he had already been under a PPO and she asked him to give some details. He said it meant he had to live at Matawhāiti; that the order gets reviewed every year; that he could not go out, and could not do some of the things he would like to do.

[59]   Dr Fisher interviewed Mr Chisnall on 21 January and 13 February 2020. In her report Dr Fisher said that due to Mr Chisnall’s recorded history of cognitive and social difficulties, and with previous assessments finding him to be mildly impaired, she ensured that appropriate time was spent on the consent process. She said this

involved Mr Chisnall advising her of his understanding of the assessment and a PPO as well as Mr Chisnall describing each part of the consent form to her in his own words. She said for the most part Mr Chisnall appeared to have a reasonable understanding of the components of the consent form and the legal requirements of a PPO. However, she said when he did demonstrate some difficulty with a term or concept, for example “self-regulatory capacity”, she explained this to him and he was then able to describe it back to her in his own words. She felt confident therefore that Mr Chisnall was able to provide informed consent to take part in a PPO assessment.

[60]   Dr Barry-Walsh records in his first report that Mr Chisnall was aware he was coming to see him for the purpose of Dr Barry Walsh completing a report in relation to the application for a PPO. Mr Chisnall appreciated what this order meant in general terms. Dr Barry-Walsh said he gave consent for him to access medical records and to speak with staff involved in his care. As far as his second report (for this hearing),  Dr Barry-Walsh says simply that he spoke with Mr Edgeler, counsel for Mr Chisnall, on 22 October 2020. He then says, “I interviewed Mr Chisnall on 22 October 2020”. He does not specifically say that  he  spoke  to  Mr  Edgeler  prior  to  speaking  to Mr Chisnall. However, that is the order in which he refers to those two events in his report.

[61]   I am more than satisfied that each of the psychologists obtained informed consent from Mr Chisnall for their assessment interviews. Mr Chisnall was provided with relevant material beforehand. Each psychologist was aware of Mr Chisnall’s intellectual functioning in general terms and each took care to explain the procedure and the implications of the PPO (and Ms Laws in relation to the ESO).

[62]   While Dr Barry-Walsh’s report for this hearing does not refer to the obtaining of informed consent, equally he was not cross-examined and challenged on his process.  Further, Dr Barry-Walsh’s  reports were sought by counsel on  behalf of   Mr Chisnall. I do not consider there is any issue with informed consent in relation to the preparation of either of Dr Barry-Walsh’s reports.

Use of protected communications or privileged communications

[63]   There is a section on the last page of the consent form which provides for additional and separate consent for the health assessor to access protected communications or privileged communications. In practical terms, for this hearing, this relates to treatment  notes  or  discussions  between  the  health  assessor  and  Mr Chisnall’s treating psychologist.

[64]   I will deal with this issue in relatively short order, not because it is lacking in importance, but because of my assessment overall that the process followed by each of the psychologists was appropriate for the purposes of obtaining informed consent generally.

[65]In relation to this specific aspect:

(a)Ms Laws said that Mr Chisnall provided specific consent to her using information from his previous psychological treatment at Te Piriti Special Treatment Unit, as well as with the Regional Forensic Service;

(b)Dr Wilson said that Mr Chisnall consented in writing to Dr Wilson using the information from his previous treatment at Te Piriti Special Unit for his assessment;

(c)Mr Berry said Mr Chisnall consented in writing to Mr Berry using information from his previous treatment at Te Piriti Special Treatment Unit and from individual treatment with Department of Corrections psychologists;

(d)Dr Vertue said that Mr Chisnall demonstrated his understanding of privileged information and made it clear that he thought it was important that she gain information about  his treatment.  She  said  Mr Chisnall gave consent for her to consult his treating psychologist about his treatment and to use information from previous treatment reports in the preparation of her report;

(e)Dr Fisher said that Mr Chisnall consented to her using information considered to be privileged under the Evidence Amendment Act and specifically from his previous treatment at Te Piriti Special Treatment Unit for child sexual offenders and to refer to his individual treatment with the departmental psychologist for the purposes of her assessment; and

(f)Dr Barry-Walsh said in his first report that Mr Chisnall gave his consent to Dr Barry-Walsh consulting his medical records and for him to speak to psychiatrist Dr James Gardner of Forensic Mental Health Services who had assessed Mr Chisnall between March 2013 and late 2015. In his  second  report,  Dr  Barry-Walsh  does  not  refer  to   obtaining Mr Chisnall’s consent to access such communications. However he says he did not in fact speak to Mr Chisnall’s treating psychologist as he was unable to contact her.

[66]   Taking into account what the psychologists said not only in their evidence on this issue but also their general approach to seeking Mr Chisnall’s informed consent referred to in the previous section of this judgment, I find that the five psychologists did adequately explain protected communications and privileged communications to Mr Chisnall and accordingly the consent he gave was an informed consent. As noted, Dr Barry-Walsh obtained consent for his first report. In the absence of a particular challenge, I am satisfied it was informed consent. He did not speak to Mr Chisnall’s treating psychologist for his second report. So to that extent informed consent on this issue does not arise.  However I note that Mr Chisnall volunteered information to   Dr Barry-Walsh about his treatment sessions. Given that the information was volunteered by Mr Chisnall and given Mr Chisnall’s knowledge from previous interviews  that  he did not  have to provide such information, I am  satisfied that    Dr Barry-Walsh properly used that information.

Section 3, NZBORA

[67]   I now turn to the issues raised by Mr Ellis as set out in [29] above. This includes arguments based on NZBORA.

[68]   As a preliminary point, I note that neither counsel addressed the Court on the application of s 3 of NZBORA to health assessors who produce reports for an application by the Chief Executive for a PPO under the Public Safety Act. Section 3 provides:

3        Application

This Bill of Rights applies only to acts done—

(a)by the legislative, executive, or judicial branches of the Government of New Zealand; or

(b)by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

[69]   A health assessor does not come within the scope of s 3(a). In relation to s 3(b), it seems to me there is a question as to whether a health assessor is a person performing a public function, power or duty conferred on him or her by or pursuant to law. The Court of Appeal has said that this section of NZBORA “must be given a generous interpretation appropriate for that legislation” but also that such a generous interpretation “still requires that the acts in question fairly come within the description” set out in s 3(b).27 Whether the act of preparing a report by a health assessor does so “requires consideration of the suggested source of the function, power or duty and how it is conferred or imposed by law”.28 What the Court of Appeal has described as “wholly private conduct” is conduct “left to be controlled by the general law of the land”.29

[70]   As Randerson J stated in Ransfield v Radio Network Ltd, there are three issues to consider in s 3(b).30 Is the action in this case (preparation of a report for an application for a PPO):

(a)in performance of a function, power or duty;

(b)which is conferred or imposed by or pursuant to law; and which

(c)is public.

27     R v N [1999] 1 NZLR 713 (CA) at 721.

28     At 721.

29     At 718.

30     Ransfield v Radio Network Ltd [2005] 1 NZLR 233 (HC) at [47].

[71]   For the purposes of making a PPO, the Public Safety Act refers to health assessors in four ways. Section 3 defines a health assessor. A health assessor is a health practitioner who is a medical practitioner who is a practising psychiatrist or a registered psychologist. Section 9 requires an application by the Chief Executive to be accompanied by at least two reports, separately prepared by health assessors at least one of whom is a registered psychologist. The provision also specifies two matters each report must address. Certain powers for the Court to appoint other health assessors or the respondent to request a health assessor to make an assessment are provided for in s 10. Finally, s 13, which confers the power on the Court to make a PPO, refers particularly to the evidence of health assessors when the Court considers the evidence offered in a proceeding.

[72]   The health assessor’s role in a proceeding also needs to be considered. The health assessor is giving independent expert evidence. His or her capacity to do so depends on professional qualifications and experience. It is their qualifications and experience and the independence of their opinion on which the Court relies, together with other evidence, to decide whether a PPO should be made. An expert witness who is a health assessor has an overriding duty to assist the Court impartially and is not an advocate for the Chief Executive.31

[73]   With these observations in mind, I turn to the requirements of s 3(b), which must be given a generous interpretation appropriate for NZBORA. The Public Safety Act imposes a duty on the Chief Executive to supply the necessary reports with an application. The statute does not therefore establish a function for a health assessor nor confer any powers or duties. It specifies the qualifications of those who may prepare such a report but nothing more. How the report is to be produced is not set out and a health assessor is given no powers to compel any person to engage with them and no duty to do so either.

[74]   Two matters are to be dealt with in the reports but those provisions, it appears to me, impose that duty on the Chief Executive to submit reports which deal with them.

31     Schedule 4, High Court Rules 2016.

If a health assessor does not address them in his or her report, the Chief Executive will need to remedy that situation, not the health assessor.

[75]   Even if a health assessor did perform a function (he or she clearly having no powers or duties), it can be inferred from what I have said above that such a function is not conferred or imposed by or pursuant to law. Under the Public Safety Act, particular functions are given to the Chief Executive and the Court. A health assessor is defined but otherwise has no specified function; others are required to perform functions which give rise to the preparation of a report by a health assessor.

[76]   Finally, while the entire process may be in the public interest and for public safety, the work of a health assessor in preparing a report is entirely a private activity. The report is commissioned by the Chief Executive but the Chief Executive has no input into its content as that is a matter solely for the health assessor as an independent expert witness. How the report is prepared and whether the subject of the application is involved is a matter for the health assessor and the subject to determine. The Chief Executive has no role. The report only moves into the public domain when the Chief Executive submits an application to the Court attaching the report in support.

[77]   After the report is prepared, the Chief Executive is under no obligation to either submit an application for a PPO (and may decide not to do so on the basis of the report) or submit the report with an application (subject to the provision of two reports, one of which is prepared by a registered psychologist). The same reasoning applies to a health assessor appointed by the Court under s 10(1).

[78]   I am therefore doubtful that the preparation of a report by a health assessor under the Public Safety Act is an activity which falls within s 3(b) of NZBORA. It appears to me appropriate that the constraints on a health assessor’s freedom to undertake the preparation of a report for the purposes of an application by the Chief Executive under the Public Safety Act are those imposed by the general law (in particular, the obligations imposed on expert witnesses by the High Court Rules 2016).

[79]   Lastly, these comments apply primarily to the preparation of the report by the health assessor as that stage of the process was the focus of Mr Ellis’ submissions. I

have particular regard to Randerson J’s observation that a person may have several functions, powers, or duties, some of which are pubic and others private: “It is essential to focus on the particular function, power, or duty at issue”.32 The health assessor is likely performing a public duty in giving expert evidence in person at any Court hearing on an application. However, that step is one which is generally voluntary rather than imposed by law so s 3(b) would still not be satisfied.

[80]   Despite these remarks, in the absence of submissions on this issue, I do not definitively decide the point. I will proceed on the basis that NZBORA does apply to the health assessors. A decision on the issue is not necessary for the purposes of this judgment as Mr Ellis’ arguments based on NZBORA, which I address below, do not succeed.

Advice of right to a lawyer

[81]   Mr Ellis submits that the advice given to Mr Chisnall by the health assessors about his right to speak to a lawyer was inadequate. I will first set out the evidence given by each of the health assessors on this issue. I will then address Mr Ellis’ arguments.

[82]   I will start with Dr Vertue. She was the first witness called by the Chief Executive and was cross-examined extensively.  Thereafter, with the exception of  Dr Fisher, cross-examination on behalf of Mr Chisnall was in short form and by reference to Dr Vertue’s evidence on this issue (and other issues referred to in the following sections of this judgment).

[83]   Dr Vertue said under cross-examination that her understanding was that some weeks prior to the date of her meeting with him on 9 January 2020, Mr Chisnall had been served with a letter from the Department of Corrections along with the consent form which Dr Vertue discussed with him before the interview commenced. The document entitled “Your rights and the rights of the victims of your offending” (annexed) in the first section has a heading “Legal advice”. Below that heading it is stated “… you have the right to seek and receive legal advice at any stage”.

32     Ransfield v Radio Network Ltd, above n 30, at [69](e).

[84]   In her report, Dr Vertue records that Mr Chisnall said he had taken legal advice about whether or not to engage in the assessment interview and he had been advised to do so. Dr Vertue confirmed that in her oral evidence, saying Mr Chisnall had already asked for legal advice, as recommended to him when he was first served with the documents some weeks earlier. Mr Chisnall told her that he had asked his lawyer for legal advice about whether he should engage in the interview or not and that he had been advised to do so.

[85]   The consent form (annexed) which Dr Vertue discussed with Mr Chisnall before he signed it includes the following:

I also understand that I have the right to obtain legal advice before deciding whether to consent to the assessment interview. I will be given a reasonable length of time to do this upon hearing that I am to be considered for a Public Protection Order.

(emphasis in original)

[86]   Under cross-examination Dr Vertue was asked whether she told Mr Chisnall that at any time during the assessment interview he could ask her to stop so he could get legal advice. Dr Vertue said she did not believe she had said that. Dr Vertue was also asked whether she re-advised Mr Chisnall of any of his rights before she continued with her interview on 17 January 2020. She said she did not go through the formal consent process again.

[87]   Dr Vertue was also asked whether she advised Mr Chisnall that he had the right to talk to his lawyer if he did not want to do one of the psychometric tests which she administered (the Minnesota Multiphasic Personality Inventory (MMPI)). She said she did not.

[88]   Ms Laws, in her first report, said that Mr Chisnall was “fully cognisant” of his right to seek legal advice. Under cross-examination, Ms Laws (who is also a police officer) said she tells everybody she assesses that she is a police officer and in this instance she told Mr Chisnall he had the right to a lawyer at any time during the assessment. It is not entirely clear but it appears that she also told him that he could seek legal advice in private and without cost.

[89]   Dr Wilson interviewed Mr Chisnall for a total of three hours over two sessions on successive days, 15 and 16 February 2016. In his assessment report dated 22 March 2016, Dr Wilson states that Mr Chisnall was aware of his right to obtain legal advice on whether to consent to participate in the health assessment interview and was given adequate time for legal advice to be obtained.

[90]   The form Dr Wilson used was the same form used by Dr Vertue. Dr Wilson was asked under cross-examination whether he told Mr Chisnall that he could, after the interview had started or at any  time during the interview,  talk  to  his  lawyer.  Dr Wilson said he did not mention talking to his lawyer at any stage during the interview. But Dr Wilson said he did tell Mr Chisnall that he could stop the assessment at any stage and that although he had given consent at the outset he could withdraw consent at any point. He said he checked with the unit where Mr Chisnall was housed to make sure Mr Chisnall had the opportunity to talk to a lawyer before the interview.

[91]   In relation to his addendum report the following year, dated 11 April 2017,  Dr Wilson said that Mr Chisnall was aware of his right to obtain legal advice on whether to consent to participate in the health assessment interview and was given adequate time for legal advice to be obtained. As already noted in the section above on informed consent, Mr Chisnall declined to take part on that occasion having taken prior legal advice.

[92]   Mr Berry, interviewed Mr Chisnall for three hours on 25 February 2016 and for two hours on 26 February 2016. Mr Berry says in his report of 11 March 2016 that Mr Chisnall was aware of his right to obtain legal advice on whether to consent to participate in the health assessment interview and was given adequate time for legal advice to be obtained. He used the same consent form as was used by Dr Vertue. He was asked in cross-examination, if he were to be asked the same questions asked of Dr Vertue, whether he would have anything to say that was different in substance from what she said about the right to a lawyer. Mr Berry replied:

… and in terms of repeatedly reminding him that he could consult with a lawyer or finish the assessment whenever he wanted, I was confident that he knew that from the material that had been sent to him. But more importantly, I was confident that he knew that by the discussion that we had about the

implications of what he was signing, so we had some – as is my practice with all clients in Corrections, we had a discussion about what this means in reality.

[93]   In her report of 8 May 2020, Dr Fisher states Mr Chisnall was aware of his right to obtain legal advice on whether to consent to participate in the health assessment interview and was given adequate time for legal advice to be obtained. She says Mr Chisnall advised that he had consulted with his lawyer regarding his participation in the current assessment and had decided he would participate.

[94]   In neither of his reports does Dr Barry-Walsh refer to advising Mr Chisnall of his right to  obtain  legal  advice  prior  to  his  interviews.  However,  I  note  that  Dr Barry-Walsh’s appointment for both the first and second hearing was at the request of Mr Chisnall and made on his behalf by his lawyer (with the consent of the Chief Executive).

[95]Mr Ellis developed his argument as follows:

(a)The advice to Mr Chisnall by each health assessor of his right to a lawyer at the commencement of any assessment interview needed to incorporate advice that Mr Chisnall could consult with a lawyer in private and without payment of a fee;

(b)The health assessor also needed to advise Mr Chisnall that this right continued throughout the  assessment  interview.  In  other  words,  Mr Chisnall needed to be told that the right to consult and instruct a lawyer in private and without fee applied not only before the interview commenced but at any stage of the assessment interview; and

(c)Where the health assessor continued the assessment interview on a second day, Mr Chisnall needed to be readvised as above prior to the commencement of the continued interview.

[96]   Mr Ellis submits that while the Court can admit any evidence, it does so in the exercise of a discretion, which requires, given the context, consideration of NZBORA rights.

[97]   I start by noting that Mr Ellis does not specify any particular NZBORA rights in support of these submissions. He does not, for example, refer to s 24(c), no doubt because Mr Chisnall has not been charged with  an offence.   Nor does he refer to     s 23(1)(b), although that it is effectively the right he relies on. Mr Chisnall is detained under an enactment but at the time of his interactions with the health assessors, his further detention was predicated on a subsequent event, which is an order of the Court under the Public Safety Act. The health assessors themselves did not interfere with Mr Chisnall’s liberty, they had no power of arrest and could not compel Mr Chisnall to speak to them.

[98]   So NZBORA rights to legal advice either under s 24(c) or s 23(1)(b) are not available to Mr Chisnall. But that is not to say he does not have the right to seek legal advice. That right is clearly contemplated in the annexed documents. Additionally, a “resident” in a PPO facility is entitled to obtain legal advice on his or her status as a resident and on any other relevant legal question.33 I consider it follows that prior to becoming a resident there is a right to receive legal advice before the preparation of an assessment which will form part of the evidence on which a decision as to becoming a “resident” is based. The issue is the extent of the advice required.

[99]   I find some assistance from the Court of Appeal decision in McDonnell v Chief Executive of the Department of Corrections.34 That case concerned a decision to make an ESO under the Parole Act. The statutory regime was a different one but there are distinct parallels between the process under the Parole Act and the requirements of the Public Safety Act and, in particular, the preparation of a report by a health assessor to support an application by the Chief Executive for an ESO.

[100]   The Court of Appeal drew an analogy between the ESO process and sentencing. Certain rights fall away on conviction and were not “re-ignited” by an ESO application. An ESO application is made under the Parole Act rather than the Sentencing Act 2002 and a PPO application is also made under different legislation. The ESO process is a criminal one while the PPO process is a civil one but little turns on that distinction for the purposes of the rights alleged. The analogy to sentencing is

33     Public Safety (Public Protection Orders) Act 2014, s 29.

34     McDonnell v Chief Executive of the Department of Corrections (2009) 8 HRNZ 770 (CA).

one which can apply helpfully to the PPO process too. Certain rights can no longer apply but Mr Chisnall continues to have a right to legal representation. The question is how that is to be exercised given the totality of the process.

[101]   In McDonnell, the Court of Appeal was clear that the right to legal representation extended to interactions with the health assessor but the scope of the right was limited:35

… Of course, an offender who is the subject of an ESO application has the same right to legal representation as a prisoner facing sentence. Mr McDonnell exercised that right in this case and was represented in the High Court. That does not, however, mean that he was entitled to be represented at the interview with the health assessor: that interview is not the equivalent of a police interview of an offender before or soon after a charge is laid. He was, however, entitled to advice about the consequences of his consenting or refusing to consent to an interview with the health assessor.

[102]   The Court of Appeal added that health assessors needed “to allow offenders to obtain legal advice on the issue of whether to consent to an interview, and the process they follow should allow for this”.36 It seems to me appropriate that similar legal advice is available to those who are the subject of a PPO application prior to participating in an interview with a health assessor. However, as the Court of Appeal has observed, such an interview is not the equivalent of an evidential interview with Police and the question on which legal advice is given is whether or not to consent to the interview. The subject of the application is under no obligation to co-operate and can withdraw at any stage. These points can be conveyed to that person by a lawyer during a preliminary consultation before the interview with the health assessor starts.

[103]   The importance of looking at the totality of the process, rather than focusing narrowly on the health assessors’ reports, is also evident from the Court of Appeal’s judgment in Belcher v Chief Executive, Department of Corrections.37 As in McDonnell, the appeal concerned an application for an ESO. However, as I have explained above, I find the reasoning is also persuasive when considering a PPO. One of the submissions on behalf of the appellant, described as less “cogent” by the Court of Appeal, related to a health assessor’s report.   The appellant declined an interview

35 At [40].

36 At [41].

37     Belcher v Chief Executive, Department of Corrections [2007] 1 NZLR 507 (CA) at [98].

with the health assessor. The Court of Appeal observed that the ESO process could not be “derailed” if the subject of an application refused to interact with a health assessor selected by the Chief Executive. The statutory scheme “assumed” a report would be produced.

[104]   The role of the health assessor is only one part of the process. Evidence is collected and compiled for presenting to the Court. The Court of Appeal noted the health assessor does not determine whether an ESO is to issue, which is a matter for the Court on the basis of all the evidence before it and submissions by counsel on behalf of the subject of the application and the Chief Executive. There is a right to legal advice at the health assessor’s stage of the process but “fair trial” rights are vindicated at the hearing stage when the subject of the application is entitled to legal representation and to call evidence.38 This analysis applies with equal force to the PPO process established by the Public Safety Act.

[105]   Prior to interviewing Mr Chisnall, each health assessor made him aware of his right to seek legal advice. He had also received that advice earlier in the “information package”. Dr Vertue’s evidence indicates that Mr Chisnall spoke about this to her and that he had accepted his lawyer’s advice to participate in the interview. Each discharged the obligation they were under. I can identify no error in their actions. They were not  required to go further and take the additional steps referred to by    Mr Ellis as set out in [95] above.

[106]   For these reasons, I am  satisfied  that  the  health  assessors  provided  for  Mr Chisnall’s right to legal advice when they conducted interviews with him.

Freedom of thought and expression

[107]   Section 13 of NZBORA protects, among other rights, freedom of thought and s 14 protects freedom of expression. Mr Ellis says Mr Chisnall’s right to freedom of thought has been infringed by the health assessors in conducting their interviews. Freedom of expression is also relevant, Mr Ellis submits, because Mr Chisnall’s thoughts have been recorded in writing by the health assessors. This last submission

38 See also at [52].

was not developed in any detail and Mr Ellis’ focus was on freedom of thought. Other matters raised in Mr Ellis’ submission on this point were also of no relevance.39

[108]   Mr Ellis submits that Mr Chisnall should be entitled to his thoughts, “without the invasion of this fundamental right by the prying eyes of health assessors who did not advise him of this right”. The right could conceivably affect the activities of health assessors in a variety of statutory contexts in New Zealand.

[109]   This is Mr Ellis’ best submission on freedom of thought. But it is not particularly cogent. It faces difficulties on several fronts. First, the “prying eyes” of the health assessors are on Mr Chisnall only with his informed consent. He did not have to participate but chose to do so, on the basis of advice given to him by his lawyers. If he did not participate, the health assessor would still be able to prepare a report in his absence. I have already noted the Court of Appeal’s reasoning in McDonnell in relation to ESOs on this point. Second, “prying eyes” reveal Mr Ellis’ principal concern: Mr Chisnall’s privacy, despite his consent to the interviews, is what is raised. I note that in the Californian case cited by Mr Ellis as “context”, the defendant claimed a prosecutor violated his “state right to privacy”. However, that is not a right affirmed in NZBORA. It is not the right protected by s 13 of NZBORA.

[110]  Third, and alternatively, if Mr Chisnall has no right to keep his thoughts private, Mr Ellis’ submissions are directed at the risk of self-incrimination rather than Mr Chisnall’s freedom of thought. The risk of self-incrimination in health assessors’ reports (or similar) was addressed by Wild J in Burke v Superintendent of Wellington

39 These include Mr Ellis’ submission dealing with Starson v Swayze [2003] 1 SCR 722. That case concerned medical treatment rather than freedom of thought (as he acknowledged) and is of little assistance. Risk of future offending cannot by definition be known with absolute certainty but that is not relevant to the right to freedom of thought. Another example is Mr Ellis’ reference to the Health and Disability Code providing for the presence of an observer. Frater J’s observation in R v Samuelu (2005) 21 CRNZ 902 (HC) at [101] goes to the exercise of rights in particular circumstances, not the substantive right itself and R v D [2003] 1 NZLR 41 (CA) did not involve rights but the use of information given by a defendant to a medical practitioner or clinical psychologist about criminal offending which were protected communications under s 33 of the Evidence Amendment Act (No 2) 1980 (now s 59 of the Evidence Act 2006). A report from the clinical psychologist who treated the defendant was tendered in evidence in support of an application for a sentence of imprisonment. It is notable that another report prepared for the application by a psychiatrist which took account of discussions with other medical practitioners and staff involved in the defendant’s treatment was not challenged, at [50]. I note in this case I have found Mr Chisnall gave informed consent to the use of such records.

Prison.40 That case involved the preparation of reports by psychologists to assess the plaintiff’s application for parole. The Judge noted that the right in s 25(d) of NZBORA was a privilege against providing evidence which might assist in a criminal prosecution.41 It is a right which precedes a finding of guilt and conviction, which are features fundamental to the engagement of the privilege. Just as the Parole Board deals with reports prepared after guilt has been established and the right against self- incrimination has passed, so too when dealing with an application for a PPO, the right cannot be engaged in the preparation of the health assessors’ reports.

[111]   Fourth, and most importantly, Mr Ellis has not established that Mr Chisnall’s right to freedom of thought has been infringed. To prepare a report, the health assessor seeks an authentic and accurate account of the subject’s thoughts. The health assessor presumably asks questions to shape the interaction and to seek relevant information. But he or she is primarily a listener, recording information on which to form an opinion about the subject. This is consistent with the evidence given by the health assessors in this case. In particular, Dr Vertue said she could not control what her patients think. This reflects how the reports are produced – the health assessors seek thoughts, they do not seek to influence or alter them.

[112]   In this regard, I note that Mr Ellis’ submission that freedom of thought is novel ground is not correct. Freedom of thought was raised in Moonen v Film and Literature Board of Review.42 The context was very different, in that certain publications which belonged to the appellant were classified as objectionable. As the case concerned censorship of a publication, some aspects are less relevant for present purposes but the reasoning does assist in this case.

[113]   On appeal, the Film and Literature Board of Review upheld the classification. The Court of Appeal found submissions on this point difficult to follow but characterised the proposition that those who might have read or viewed the publication were being censored for the thoughts they might have while doing so. An alternative

40     Burke v Superintendent of Wellington Prison [2003] 3 NZLR 206 (HC).

41 At [27].

42     Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [36].

submission was that those who made or possessed the publication were having their thoughts censored.

[114]   These submissions did not find favour. The Court of Appeal observed an “elementary distinction” between thoughts and expression. Likewise, in this case,  Mr Chisnall was able to have whatever thoughts he wished in his interactions with the health assessors. That reflects the elementary distinction.

[115]   The Court of Appeal also noted the possibility that the absence of the publication precluded readers or viewers forming certain thoughts was not an infringement on thoughts which did not exist. If censorship of a publication does not constitute infringement on the right to freedom of thought, it is challenging to characterise a clinical interaction between the subject of an application and a health assessor – who wants the subject to freely convey authentic and unfiltered thoughts relevant to an assessment of that person’s risk of offending – as infringing on that right. The right to freedom of thought cannot protect thoughts Mr Chisnall has not yet formed whether or not the absence of those thoughts was caused by his interactions with the health assessors.

[116]   To conclude: Mr Ellis’ submissions on the right to freedom of thought were directed primarily to Mr Chisnall’s privacy and self-incrimination. Mr Chisnall’s right to freedom of thought was not infringed, NZBORA does not protect privacy and the right against self-incrimination is not relevant to a PPO application.

Discrimination

[117]   Mr Ellis’ submissions refer to arbitrary detention, discrimination and unfair trial but discrimination is the only point he develops. Arbitrary detention is invoked due to what is said to be the discriminatory nature of Mr Chisnall’s detention. The third, unfair trial, is mentioned only in connection with Noble v Australia, a decision of the United Nations Committee on the Rights of Persons with Disabilities.43

43     See M v Attorney-General [2020] NZCA 311 at [110].

[118]   Mr Ellis invokes the Convention on the Rights of Persons with Disabilities (CRPD), the decision of the United Nations Committee on the Rights of Persons with Disabilities in Noble v Australia and the Statutes of Westminster in support of his submission. He says that only those with a disability can be detained under the Public Safety Act. That is, s 13 establishes a test which identifies a disability and anyone who satisfies that test, and can be detained under a PPO, has a disability. It is discriminatory because those who can be detained have a disability; anyone without that disability cannot be detained.

[119]   Neither s 19 nor s 22 of NZBORA is expressly relied on by Mr Ellis in relation to discrimination and arbitrary detention (though as I will explain shortly, I infer he is relying on s 22 in relation to the latter).44 The focus of his brief and very general submissions are primarily the CRPD and the Statutes of Westminster. In these circumstances, the test for discrimination in NZBORA claims is not relevant.45

[120]   In addressing these submissions, I find assistance in the Court of Appeal’s recent judgment in M v Attorney-General. The appellant in that case also relied on the CRPD and the Committee’s decision in Noble v Australia. Indeed, Mr Ellis’ submissions were in the form of a long extract taken directly from the Court of Appeal’s judgment in M.46 That case involved a quite different statutory regime concerning the detention of an intellectually disabled person with a personality disorder under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and other statutes.

[121]   A summary of Mr Ellis’ submissions on the CRPD will suffice for my purposes. They can be read in their entirety in M. Mr Ellis relied on arts 5 (equality

44 Distinguishing this aspect of the case from M v Attorney-General, above n 43, where the appellant, albeit in a different statutory context, relied on s 19 of NZBORA on freedom from discrimination and s 22 on arbitrary detention, at [27](e). Mr Ellis acknowledged the points were unsuccessful in that case but noted, first, the appellant had applied for leave to appeal to the Supreme Court and, second, that the submissions had been reframed. As I understand the changes, Mr Ellis now relies on the Statutes of Westminster rather than NZBORA. I also note that the Supreme Court has since the hearing issued a leave decision: M v Attorney-General [2020] NZSC 145. Leave was granted on an aspect of the case relating to arbitrary detention (which is not relevant here). Leave was not granted in relation to any other point in the appeal, including discrimination.

45 M v Attorney-General, above n 43, at [106]-[107].  See Ministry of Health v Atkinson [2012] NZCA 184, [2012] 2 NZLR 456 at [55].

46 At [110]-[114].

Q.       And to do that from Matawhāiti?

A.       Yeah, yes.

Q.       Rather than try and do that from say Tōruatanga where there are more

residents?

A. I having worked with individuals previously who have  high and  complex needs like Mr Chisnall and having seen them change to units where they’ve had more liberties and more freedoms but then not been able to continue through with the treatment gains. I would be very reticent to do that for him.

Q.       So, you’ve experienced that yourself, you’ve seen that?

A.       Yes.

Q.But that’s  something that might be able to be achieved with some  careful and gradual preparation?

A.       Yes, most definitely.

[242]   Under cross-examination by counsel for Mr Chisnall, Dr Barry-Walsh was asked for his view on keeping Mr Chisnall on the existing interim detention order for another year at Matawhāiti and having accompanied visits into the community. He was asked whether this form of management would have any benefit over moving straight to an ESO. Dr Barry-Walsh said he believed it would. He referred to the approach taken for people with intellectual disability and mental disorders. This involves incremental steps with support and treatment to test how they managed. With small increases in freedom and small increases in risk in a carefully managed way, the individual is given the opportunity to adapt gradually so they are less likely to be overwhelmed.

[243]   Dr Vertue’s view on the removal of controls was that should the current environmental controls be removed, and an opportunity to sexually offend presented itself with the relevant situational trigger, Mr Chisnall would rapidly engage in serious sexual reoffending.

[244]   Dr Fisher, when expanding on her opinion that Mr Chisnall is at a very high risk of engaging in further relevant sexual offending, takes the view that without the structure and  control  of  Matawhāiti,  and  without  significant  external  support, Mr Chisnall demonstrates a high level of risk. That level of risk puts him at imminent risk of reoffending should he return to the community without suitable and stringent oversight and support.

[245]   I am satisfied that an ESO with intensive monitoring would not be sufficient to mitigate the very high  risk Mr Chisnall  poses.   It  is  clear on the  evidence that   Mr Chisnall requires further treatment and a high level of supervision and management if his risk is to be mitigated.

[246]This conclusion reflects three other points established by the evidence:

(a)Even the limited treatment gains made are at risk of being lost under a move to an ESO with interim monitoring. All health assessors agreed that Mr Chisnall’s treatment gains to date have been extremely limited despite the familiar and structured living environment of Matawhāiti,

which appears to be suited to Mr Chisnall’s need for a strict routine. I am satisfied that the treatment gains have not yet reached the level required for a safe transition to the less supervised and less secure setting of Tōruatanga. Living in such an environment could also make it more difficult for Mr Chisnall to retain his current, very limited treatment gains and/or make any further such gains. Dr Fisher’s evidence is that significant time will be required for Mr Chisnall to be able to cement his limited treatment gains and to generalise them to a community-based lifestyle for sustained risk management;

(b)Mr Chisnall’s demonstrated difficulties in complying with instructions are likely to present clear problems for his effective management under an intensive monitoring condition, especially within the less structured Tōruatanga environment. Dr Fisher’s evidence is relevant in that respect given her conclusion that such monitoring may in fact increase Mr Chisnall’s negative emotion, level of interpersonal aggression and his reliance on deviant sexual fantasy; and

(c)Mr Chisnall’s clear difficulties coping with minor routine changes, even within the familiar setting of Matawhāiti, are likely to be exacerbated by a move to Tōruatanga.

[247]   I consider a change in setting at this time would be premature, potentially detrimental to Mr Chisnall’s limited treatment gains to date and thus present an undue risk to the safety of the community given the opportunities to abscond from Tōruatanga and Mr Chisnall’s history of opportunistic offending.

[248]   I therefore do not consider an ESO with intensive monitoring for 12 months would be sufficient to protect the public from Mr Chisnall’s very high risk of imminent serious sexual offending.

Another option?

[249]   Mr Edgeler’s main submission was that the test for a PPO was not made out and the Court should make an ESO with an intensive monitoring condition. His

alternative submission was that the Court might determine that the test for a PPO is made out but the alternative of an ESO with intensive monitoring would sufficiently manage Mr Chisnall’s risk.

[250]   Mr Edgeler made a further alternative submission as to how the Court might proceed in the event I were to determine that the test for a PPO was made out, as I have so found. Mr Edgeler proposed that Mr Chisnall remain at Matawhāiti on the interim protection order presently in force. Over the next three, six, or 12 months,  Mr Chisnall should have the opportunity to make accompanied supervised trips into the community. The Court would then hear evidence as to how that process has worked and make a final risk assessment decision at that time. Effectively the application would be part-heard.

[251]   The evidence from Mr Burger was that, as at the date of the Court hearing, the only visits Mr Chisnall had made to the community were accompanied visits for doctors’ appointments. Other excursions into the community have not been permitted. However, Mr Burger’s evidence was that a clinical governance group, which is in the process of being formed, will be considering, among other things, leave outings under s 26 of the Public Safety Act.83

[252]   Mr  Edgeler’s  proposal  would  take  advantage  of  that  process.  Under   Mr Edgeler’s proposal, the Court would then make an assessment, based on solid examples of Mr Chisnall’s conduct during periods of leave, of whether the risk I have found to exist might be managed. It would also accord with Mr Chisnall’s wish, expressed to Mr Burger, that if Matawhāiti were to have leave outings approved under s 26 of the Public Safety Act, he would be quite happy to stay in Matawhāiti forever.

[253]   Mr Edgeler’s proposal had an initial attraction but I have decided against it. While I cannot see any statutory impediment to that process, there is nevertheless a statutory regime for review of a PPO both by a review panel and by the Court. Section 15 requires the review panel to review a PPO during its currency within one year after

83    In particular s 26(1)(e) under which leave of absence is permitted for humanitarian reasons.  This is consistent with Recommendation 6(a) of the Chief Ombudsman in his “Report on an unannounced inspection of Matawhāiti Residence under the Crimes of Torture Act 1989” of December 2020 provided to the Court by counsel for Mr Chisnall after the hearing.

the order is made and then within every succeeding year after the most recent previous review of the order by the review panel. If the review panel considers there may no longer be a very high risk of imminent serious sexual or violent offending, the review panel may direct the Chief Executive to apply to the Court for a review of the order under s 16.

[254]   Section 18 of the Public Safety Act refers to reports which the Court must be provided with and provides that the Court may call for further or supplementary reports. Accordingly, the order I propose to make will be reviewed within a year by the review panel which will have  the  opportunity  to  consider  reports  regarding Mr Chisnall’s conduct on his leave in the community. Given the statutory scheme, I consider I should leave that to the review panel rather than adjourning this hearing part-heard and carrying out that exercise myself.

Result

[255]   I make a public protection order against Mr Chisnall pursuant to s 13(1) of the Public Safety (Public Protection Orders) Act 2014. Mr Chisnall is currently a resident in Matawhāiti, a PPO facility. Accordingly, the order is to come into effect immediately upon the issue of this judgment.

Gordon J

PUBLIC PROTECTION ORDERS

General Information  

What are public protection orders?

Public Protection Order (PPO) legislation allows the Department of Correclions to apply to the High Court for the detention of very high risk offenders in a secure facility within prison precincts.

The order is a civil detention order for individuals who have served a sentence of imprisonment for an eligible offence, but still pose a very high risk of imminent and serious sexual or violent offending.

What do they do?

PPOS introduce civil detention orders for the highest- risk offenders in New Zealand.

A small number of high risk offenders are very likely to re-offend after they have been released.

Existing sentences or orders such as preventive detention and extended superv•ion orders allow authorities to monitor, manage and/or recall offenders to prison. However, for a small number of offenders these tools are not adequate to protect the public and can only be in place for a limited time.

PPOS will be used to protect the public, while ensuring individuals subject to an order will have as many of the same civil rights as ordinary citizens as possible.

Who is eligible?

A person aged 18 years or older meets the threshold if they are:

in prison under a determinate sentence for a serious sexual or violent offence and are within six months of being released at the end of their sentence, or

s ubjecl to an extended supervision order; and

-     are, or have been, subject to a condition of full time accompaniment or monitoring, or

— are subject to a condition requiring long-term full-time placement in the care of an appropriate agency, person, or persons

>   subject to a protective supervision order; or

•     a person who has arrived in New Zealand within six months of ceasing to be subject to any sentence, supervision conditions, or order imposed on the person for a serious sexual or violent offence by an overseas court; and

-     has, since that arrival, been in New Zealand for less than six months; and

—      resides or intends to reside in New Zealand.

What happens?

If a PPO is imposed on someone by the court, that person will be housed in a residence located within the ground s of a prison and monitored by staff

Conditions within the residence will be monitored by independent inspectors and the Ombudsman.

Each resident will have a management plan that will set out any restrictions they are subject to, as well as any identified needs. These plans will also identify goals that could contribute to their eventual release.

Detention will be protective rather than punitive and residents will have as many of the civil rights of ordinary citizens as possible without endangering the community, themselves, other detainees, staff in the facility or the orderly function of the facility.

PPOS can be indefinite if the court determines that a person continues to pose a very high risk of imminent and serious sexual or violent offending.

PPO reviews

Each PPO will be reviewed every 12 months by an independent review panel, and at least every five years by the High Court.

If a detainee no longer meets critena for a PPO, they will be released from the facility and placed under a Protective Supervision Order (PSO) in the community. The court may impose certain requirements on the person under the PSO. These orders will also be reviewed by the court at least twice in the first 10 years, followed by ongoing reviews at least once every 0 years.

More information

For more information about PPOs, Community Corrections, or the Department of Corrections, contact your local Community Corrections office (see under ’C’ in the Government Listings section of your local phone book) or visit

You can also read the Public Safety (Public Protection Orders) Act 2014 in full.

PUBLIC PROTECTION ORDERS

Your rights and the rights of the victims of your offending

Legal advice

You have the right to seek and receive legal advice at any stage.

During the assessment stage

You have the ñght to refuse to take part in any interview reauested by the people preparing the health assessment reports that will accompany any application for a Public Protection Order (PPO) in relation to you.

However, assessment reports will still be prepared without your input, based on other available information.

During the applic ation stage

You have the right to:

•   make submissions and/or give evidence to the court if an application for a PPO is made

•   inquest the completion of an assessment report by a health assessor nominated by YOU .

Interim detention order

The court may, on application by the Chief Executive of the Department of Corrections, order that you be detained by a person, or in a specified place, until the application is determined.

If a PPO is imposed

If a PPO is imposed, you have the right to appeal the decision.

Under a PPO, you will be ordered to stay in a facility that the Chief Executive designates and you will have to comply with certain rules and regulations of that facility.

This means that you will:

> have to remain in the facility unless given app roval by the Chief Executive to leave

> have restrictions on acces* to certain items, such as alcohol, tobacco or cell phones

be subject to a mandatory management plan, which will be regularly reviewed

>   have restñctions on who can visit you in the

facility and/or who you can communicate with

> still have certain rights, such as the right to legal advice, to vote, to receive medical treatment and rehabilitation etc.

Review of PPO

If a PPO is imposed, a panel of people appointed by the Minister of Justice will each year review the need for you to remain on the order. If the panel believes you no longer require a PPO, it may direct the Chief Executive to apply to the court to review the PPO.

The Chief Executive will also have to apply every five years to the court to review the need for you to remain on a PPO. The court may then either order the continuation of the PPO or cancel the order and impose a Protective Supervision Order. You may also, with the leave of the court, apply for a review of the PPO.

PPO inspectors

Independent inspector will be required to visit the PPO facility at least twice a year to ensure residents are being managed appropriately and their rights ana not being breached.

Anyone can make a complaint to the inspector if they feel the rights of a person subject to a PPO have been breached at any time.

The rights of the victims of your

offending

Victims of your offending who are registered through the victim notification register will be notified of an application for a PPO in respect of you.

Once the application for a PPO is determined, registered victims of your offending will be notified.

Unless disclosure would interfere with the privacy of any person other than you, victims of your offending will also be notified of'

an application to the court to review the PPO

>  the outcome of the application to review a PPO

the cancellation of a PPO and replacement with a Protective Supervision Order

> an application to review a Protective Supervision Order

>  the cancellation of a Protective Supervision Order.

PUBLIC PROTECTION ORDERS

What you can expect

Introduction

This information is intended for those who may become subject to an application for a Public Protection Order (PPO).

The following information outlines the process of PPOS and what you can expect if a PPO is imposed

II covers all aspects, including: the assessments

the application

>   how a PPO is imposed your rights

>   which organisations are involved PPO review processes.

Getting more information

This information is intended only as a general introduction to PPO and is pt a substitute for legal advice.

For more information about the PPO process and your rights you can:

>   contact your lawyer or legal representative

contact the Citizens Advice Bureau or a Community Law Centre

>    read the Public Safety (Public Protection Orders) Act 2014 in full.

Eligibility

The Department of Corrections can apply for, and the court can impose, a PPO if you are over 1B years of age, and:

detained in prison under a determinate sentence for a serious sexual or violent offence and are

within six months of your statutory release date,

•     subject to a protective supervision order, or;

>subject to an extended supervision order. and;

-   are, or have been, subject to a condition of full time accompaniment or monitoring, or;

-   are subject to a condition requiring long-term full-time placement ip the care of an appropriate agency, person, or persons

>   have arrived in New Zealand within six months of ceasing to be subject to any sentence for serious sexual or violent offending from an overseas court, and;

-   have, since that arrival, been in New Zealand for less than six months, and;

-reside. or intend to reside in New Zealand

Assessment

The Chief Executive of the Department of Corrections can apply to the court for a PPO against any person who meets the threshold for such an order on the ground that there is a very high risk of imminent serious sexual or violent offending by that person.

An application for PPO must be accompanied by at least two health assessment reports prepared by separate health assessors, both of which address the questions of

>   whether you pose a very high risk of imminent serious sexual or violent offending, and;

>   if you exhibit a high level of each of the following characteristics:

a)an intense drive or urge to commit a particular form of offending;

b)     limited self-regulatory capacity, evidenced by general impulsiveness, high emotional react vity, and inability to cope with, or manage, stress and difficulties;

c)     an absence of understanding or concern for the impact of your offending on actual or potential victims;

d)     poor nterpersonaI relationships or social isolation, or both.

You have the right to decline to be interviewed for the purposes of these assessments. However, if you decline to be interviewed by the health assessors, reports will still be prepared using other available information.

The assessment reports are used by the Department of Corrections to decide whether it will proceed w#h an application for a PPO.

Application to court

If the Department of Corrections decides to proceed with an application for a PPO, the application is made to the High Court.

You will be sent:

a copy of the application

a copy of the assessment reports

>   copies of any affidavits accompanying the app fication, and

>   a notice setting out your rights and the procedures relating to the application.

When the application is heard you must appear in court and a warrant or summons may be issued to you for such a court appearance. The court may also direct that you be subject to interim detention while the app fication is being determined.

The court may select a health assessor to assess you and complete a further report. You also have the right to request a health assessor to assess you and complete a further report.

You may make submissions to the court and you may give evidence. You are enoouraged to have legal representation at all court hear ngs.

When considering if you should be made subject to a PPO, the court takes into account the health assessment reports and any other factors that may contribute to your risk of committing serious sexual or violent offences.

Granting an order

The court may make a PPO if it is satisfied, on the balance of probabil I es that:

you meet the threshold for a PPO, and;

there is a very high risk of imminent serious sexual or violent offending if,-

-   where you are in prison, you are released from prison into the community; or

-   in any other case, you are left unsupervised.

The court may not impose a PPO unless it is satisfied that you exhibit a severe disturbance in behavioural functioning estab lished by evidence to a high level of each of the four characteristics described in the assessment section of this document.

You have the right to appeal this decision. The Department of Corrections also has the right to appeal the court’s decision if an order is not imposed.

When does the order start?

If you are currently in prison, the order will begin on your release date. If you are already in the community, the order will start on the day the order is imposed.

What happens next?

If you become subject to a PPO, you will be housed in a residence located within the grounds of a prison and monitored by staff. Conditions within the residence will be monitored by independent inspectors and the Ombudsman.

You will be subject to certain restrictions, however, Corrections will ensure that you will have as much autonomy and quality of life as possible. Your rights are outlined in sections 24-37 of the Public Safety (Public Protection Orders) Act 2014.

As soon as is practicable after commencing your stay at the residence, your needs will be assessed by the manager of the residence, in consultation with you.

After the completion of the needs assessment, the manager of the residence will prepare a management plan for you. This will be reviewed at least once every 12 months.

Prison detention orders

If it is deemed appropriate, the Chief Executive may apply to the court for you to be detained in a prison instead of a residence.

The court can make this order if it is satisfied that:

- you pose such an unacceptably high risk to yourself, or others, that you cannot be safely managed in a residence; and

all less restrictive options for controlling your behaviour have been considered and appropriate options tried.

The court can also make you subject to a prison detention order immediately on imposing a PPO.

A prison detention order is reviewed regularly.

If your prison detention order is cancelled as a result of a review, you will De transferred to a residence.

Reviews of PPO

Any PPO that is imposed will be subject to regular reviews.

An independent review panel will review the continuing justification for the order at least once a year. If the review panel considers that the threshold for a PPO is no longer met, it may direct the Chief Executive to apply to the court for a review of the order.

If the review panel considers the threshold is still being met, it must review your management plan to ascertain whether or not it is still appropriate.

In addition to reviews by the review panel, the Chief Executive must apply to the court for a review of the continuing justification for the PPO at least once every five years. However, the court may direct that the review period is longer - up to 10 years.

With the leave of the court, any person subject to a PPO can also apply for a review of the order.

Protective supervision orders

If the court finds that you no longer pose a very high risk of imminent serious sexual or violent offending, it must cancel the PPO and impose a Protective Supervision Order (PSO).

If a PSO is imposed, you will be released from detention in the residence, or the prison if applicable.

Before the court imposes a PSO, each party will be given the opportunity to make submissions on what requirements should be included in the order.

The court can include any requirements that it considers necessary to:

reduce the risk of re-offending by the person under protective supervision;

>    facilitate or promote the rehabilitation and reintegration into the community of the person under protective supervision,

provide for the reasonable concerns of victims of the person under protective supervision.

As with the PPO, protective supervision orders must also be reviewed at defined intervals:

-    within five years of the order being imposed,

-    then, within five years of the first review; and

-    then at intervals of not more than 10 years.

With the leave of the court, you may apply to the court for a review of the order.

It is an offence to breach the requirements of a PSO and you can be liable to a sentence of imprisonment for up to two years.

0 E P A R T M E N T 0 F

A R A   P 0  U T A u   A   A  0  T E A R O A

CONSENT TO PARTICIPATE IN PSYCHOLOGICAL ASSESSMENT INTERVIEW

For the purposes of health assessment reports to the Court under Public Safety

(Public Protection Order) Act 2014  

The Purpose of This Fonn

It has been explained to me that the Department of Corrections is considering applying to the Court for the making of a Public Protection Order in respect of me.

I understand that any application for a Public Protection Order needs to be accompanied by a health assessor's report and that @P  k ¿.r                rinsed health assessor’s name], is the health assessor who will prepare a report about me. I have been informed that a second health assessor will also prepare an independent assessment and report for the Court.

I also understand that I have the right to obtain legal advice before deciding whether to consent to the assessment interview, I will be given a reasonable length of time to do this upon hearing that I am to be considered for a Public Protection Order.

This form requests my consent to participate in an assessment interview with the health assessor to better inform the health assessment report.

What the Report will include

I understand that the health assessment report being prepared about me will include an assessment of my risk of re-offending and neede to address the following matters:

(a)The imminence of any likely serious offending

(b)My urge or drive to commit further serious offending of a serious nature

(c)My self-regulatory capacity

(d)My understanding or concern for the impact of my offending

(e)   

The nature of my interpersonal relationships and social interactions AND

1

(g    Any other factors relevant to the likelihood of my committing further sexual or violent offences

I understand the health assessment report will be based on

•   My discussion with the health assessor and responses to questions during the assessment interview

•   Information contained about me in other reports held by the Department of Corrections

•Information that others may provide to the health assessor (for example, prison staff and probation officers, programme facilitators and Special Treatment Unit therapy staff).

•Psychological questionnaires I might be asked to complete in the course of the interview.

•Risk assessment measures that the psychologist may use to estimate my risk of re-offending (e.g. PCB, ASRS, RoC”RoI).

Further things I Neod to Understand

I will be assessed using risk assessment measures, where very high ratings are regarded as an indication of a strong possibility for serious further offending.

Participating in assessment interviews and completing psychological questionnaires is voluntary and I may refuse to participate in all or some parts of these procedures, I understand that I have the right to withdraw from any assessment interview at any time. However, information I have told the psychologist before refusing to participate will be used in the assessment.

If I refuse to participate in the interview, the health assessment report will still be prapafed and the health assessor will prepare a report based information currently available, including that provided by other people.

I understand that file information held about me may also be used for the purposes of

•    supervision of the psychologist assessing me

•   the Department‘s audit and monitoring processes, where required by law

•   research and evaluation.

I understand that the results of any such research or evaluations will not be published in a form that could reasonably be expected to identify any individual, so my confidentiality will be maintained.

I understand that if I disclose information that indicates I may pose a risk of serious harm to myself or others the psychologist will disclose information necessary to prevent or lessen this harm.

I have been aclvised that the fol1owinq will occur

I will be given a copy of the health assessment report and I will have the opportunity to request changes to the factual information, but not psychological opinion, consistent with the Privacy Act 1993 and the Health information Privacy Code 1994. I may also request to have a copy of the case notes and other file information used in the assessment.

I understand that the information from the assessment interview, and the health assessment report, may be accessed at a later date

•   By Department of Corrections staff, including for future reports to the Parole Board and the Courts about me

•   By any health assessor (as defined in section 4 of the Senlencing Act 2002) preparing a further or additional report about me in his or her capacity as a health assessor

•   By Public Protection Order facility staff

•   When otherwise required by law.

I can Consent or Not Give Consent to Participate in the lntarv ews

I confirm I have Chadthe form read to me) and I understand and have had proper time to consider the contents of this document.

I,            })g{/]       \t 3/°\¢ / ) , consent/del (delete one) to participate in the assessment intervie      ngaged by the Department of Corrections for the purposes of assisting in the preparation of a health assessment report, which will go to the CouA considering any application to make a Public Protection Order in relation to me.

Signed:  .!. .   ., . .  . .. ..    .'... ....... ......          

(Offender)

Signed:  .,..  .......,......

(Health Assessor)

Consent for the use of information regarded as a “protected communication" or

"privileged"

Any information that the Department holds about me which is considered a “protected communication“ under the Evidence Amendment Act [No 2j 1980 or is “privileged" under the Evidence Act 2006 will not be used for the purpose of this report without my consent. Protected communications and privileged information are not able to be used as evidence in a criminal court proceeding without my explicit consent.

,      ifF    (]   /{     />  /     )   consen  I (delete one) to the

health assessor preparing this report  d about me in other reports/files held by the Department of Corrections that was considered a "protected communication" under the Evidenoe Amendment Act [No 2] 1980, or is "privileged" under the Evidence Act 2006. I understand that if) choose not to consent, the health assessor cannot use information that is considered “protected“ or "privileged" in the report which will go to the Court considering a Public Protection Order in relation to me.

Signed:  

Signed:  Date:... . ....