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Chisnall v Attorney-General

Chisnall v Attorney-General

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA21/20
[2021] NZCA 616

BETWEEN	MARK DAVID CHISNALL Appellant/Cross-Respondent
AND	THE ATTORNEY-GENERAL First Respondent/Cross-Appellant
AND	THE CHIEF EXECUTIVE, ARA POUTAMA AOTEAROA DEPARTMENT OF CORECTIONS Second Respondent

Hearing:	2 and 3 February 2021
Court:	Cooper, Brown, Clifford, Gilbert and Collins JJ
Counsel:	A J Ellis, B J R Keith and G K Edgeler for Appellant D J Perkins and M J McKillop for First Respondent No appearance for Second Respondent
Judgment:	22 November 2021 at 2 pm

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe cross-appeal is dismissed.
CCounsel are to confer about the form of declarations that should be made and file memoranda in accordance with [231] of this judgment.
DUnless the Court orders otherwise, the Court will determine the form of the appropriate declarations on the papers.
EThe first respondent must pay the appellant costs for a complex appeal on a band B basis and usual disbursements. We certify for two counsel.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction [1]

The appeal and cross-appeal  [11]
The role of the Court  [14]
Summary  [17]

The ESO regime [19]

Eligibility for ESOs  [21]
Imposition of ESOs  [30]
Conditions of ESOs  [33]
Appeal, review and penalties  [38]
Evidence relating to ESOs  [45]

The PPO regime [49]

Imposition of PPOs  [51]
Threshold for PPOs  [55]
Effect and conditions of PPOs  [59]
Prison detention orders  [70]
Review of PPOs  [72]
Evidence relating to PPOs  [77]

The High Court judgment [79]

The ESO regime  [88]
The PPO regime  [95]
Outcome  [104]

The issues in this Court  [105]
Is an ESO a penalty?  [111]
When is s 26(2) of the Bill of Rights Act engaged?  [139]
Is a PPO a penalty?  [147]
Justification  [178]
Other rights  [227]
Result  [229]

Introduction

Under pt 1A of the Parole Act 2002 a sentencing court may make extended supervisions orders (ESOs). Such orders may be made in respect of offenders whose conduct has exhibited a pervasive pattern of serious sexual or violent offending, and who pose a high risk of committing such offending in the future.[1]
[1]Parole Act 2002, s 107I(2).
Under the Public Safety (Public Protection Orders) Act 2014 (the PS (PPO) Act) the High Court may make a public protection order (PPO) if it is satisfied, on the balance of probabilities, that the threshold for a PPO has been met and there is a very high risk of imminent serious sexual or violent offending once a person is released from prison into the community or, in any other case, left unsupervised.[2]
[2]Public Safety (Public Protection Orders) Act 2014 [PS (PPO) Act], s 13(1).
Both statutory regimes have the purpose of protecting the public. In the case of ESOs the purpose stated in s 107I(1) of the Parole Act is “to protect members of the community from those who, following receipt of a determinate sentence, pose a real and…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] NZCA 616
Decision Date: 22 November 2021 at 2 pm

CaseChat Overview and Summary

This appeal concerns the compatibility of the extended supervision order (ESO) and public protection order (PPO) regimes with the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act). The Court of Appeal allowed the appeal, confirming the High Court's declaration that section 107I(2) of the Parole Act 2002 is inconsistent with section 26(2) of the Bill of Rights Act, as it applies retrospectively. The Court of Appeal also made declarations of inconsistency with the Bill of Rights Act as to both the PPO regime and the ESO regime as it applies prospectively. The Attorney-General's cross-appeal was dismissed. The Court concluded that both the ESO and PPO regimes impose unjustified limitations on the right to immunity from second penalty, affirmed by section 26(2) of the Bill of Rights Act. The Court found that the imposition of ESOs and PPOs amounts to a penalty. The Court did not accept the submission that the ESO and PPO regimes could be justified under section 5 of the Bill of Rights Act. The Court considered the severe restrictions placed on those against whom ESOs and PPOs are made are clearly based on the legislature's view that without these restrictions the offenders will constitute a danger to the public. However, the clear limitation on section 26(2) of the Bill of Rights Act has not been demonstrably justified on the material before the Court. The Court concluded that the ESO and PPO regimes are inconsistent with the Bill of Rights Act. The Court invited the parties to confer about the form of declarations that should be made to reflect the terms of this judgment. If agreement cannot be reached, the parties may submit memoranda not exceeding five pages in length. The appellant is entitled to costs. The first respondent must pay the appellant costs for a complex appeal on a band B basis and usual disbursements.

Orders