Ericson v New Zealand Parole Board
[2019] NZHC 1806
•30 July 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000083
[2019] NZHC 1806
BETWEEN JOHN FREDERICK ERICSON
Appellant
AND
NEW ZEALAND PAROLE BOARD
Respondent
Hearing: 25 July 2019 Appearances:
N Wham for Appellant
M N Zarifeh for Respondent
Judgment:
30 July 2019
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 30 July 2019 at 11.30am
Registrar/Deputy Registrar Date:
Introduction
[1] John Ericson is subject to a life sentence for murdering his wife in 1999. He was released on parole for the first time on 24 September 2018. A final recall order was made by the Parole Board on 26 March 2019. That decision was reviewed by the Chairperson of the Parole Board on 15 May 2019, and the recall decision confirmed. Mr Ericson appeals against these decisions.
ERICSON v NEW ZEALAND PAROLE BOARD [2019] NZHC 1806 [30 July 2019]
Background
[2] In 1999, Mr Ericson killed his wife Sandra by attacking her with a tomahawk while she slept. He pleaded guilty to murder. He was sentenced to life imprisonment. He has subsequently sought to challenge his conviction, saying that he was so affected by prescribed painkillers that the defence of automatism should have been available to him. In 2007, Mr Ericson escaped from prison and was absent for 26 hours. He was convicted of escaping custody and possession of an offensive weapon, for which a concurrent sentence of one year, six months was imposed. He has no other offending history.
[3] He was released on parole for the first time on 24 September 2018, with standard conditions for life and special conditions for five years from the date of release. He had employment and housing.
[4] At a monitoring hearing on 23 January 2019, the Parole Board expressed a number of concerns about aspects of Mr Ericson’s parole obligations. Mr Ericson had been approached by a reporter, and told the reporter of plans to launch further challenges against his murder conviction, contrary to what he had told the Board before his release. He had walked away from his employment in disputed circumstances and had failed to discuss these issues with his probation officer. Mr Ericson says he resigned because he was being asked to work in an unsafe work environment, while his employer says Mr Ericson was confronted about his performance and he became aggressive. Finally, Mr Ericson had established an intimate relationship with a woman, Ms Smith, whom he met on an online dating site. Two weeks into the relationship, Mr Ericson met with his probation officer Ms Carter and her notes of that meeting record that he said he loved Ms Smith. In light of those concerns, the Board directed a further monitoring hearing by the end of April 2019.
[5] There was a multi-disciplinary team meeting on 13 February 2019, which both Mr Ericson and Ms Smith attended. Mr Ericson’s probation officer, Ms Carter, said in an affidavit that at that meeting further concerns were identified. These included that Mr Ericson had tried to split the professionals working with him and that, despite saying she felt safe with him, Ms Smith seemed to have limited knowledge of warning
signs or the safety plan. Ms Carter said Mr Ericson had presented as somewhat controlling of the relationship.
[6] On 6 March 2019, Ms Smith contacted Ms Carter to inform her that the relationship had ended. She said Mr Ericson had been controlling and unpredictable, and there had been instances where she was scared of him. Ms Carter interviewed Ms Smith and her mother on 7 March. Ms Carter took notes of the interview, which Ms Smith signed. These notes also record Ms Smith’s comments that Mr Ericson had talked about his wife cheating more than once, and he said that he had a gun and could have shot her when he caught her cheating but did not.
[7] With that knowledge, taken alongside Mr Ericson’s unemployment, Ms Carter concluded that Mr Ericson was at a high risk of reoffending and at a high risk of harm to an identified victim, and applied for him to be recalled on the ground of undue risk to community safety.
Parole Board decision
[8] The Board heard the application on 26 March 2019. It involved questioning of Mr Ericson by Mrs Currie for the Department of Corrections, by his lawyer Mr Starling and by Board members. In its decision, the Board noted Mr Ericson’s “emphatic” evidence of his version of events, and he disputed the truth of Ms Carter’s affidavit, and therefore the comments by his employer and by Ms Smith that Ms Carter relayed.
[9] The Board set out both sets of submissions. Mrs Currie highlighted how Mr Ericson had encountered several major issues within a short time of being released, and yet worryingly he did not see his own risk which meant he could not keep to a safety plan. She also highlighted the worrying comments Ms Carter recorded from her interview with Ms Smith and her mother.
[10] Mr Starling acknowledged that intimate relationships posed problems for Mr Ericson but said that did not mean the risk was undue. Although Mr Ericson had been out of his depth in the relationship, he had learned from the experience.
[11] In concluding that Mr Ericson’s risk to community safety was undue, the Board quoted the following “apposite” comment from a psychological addendum report dated 28 August 2017:
… in light of a long history of interpersonal difficulties and struggles with emotional control, Mr Ericson is likely to be challenged at times, particularly if he perceives he is being unjustly treated. When this occurs he may revert to perseverating on issues or possibly may react strongly with hostility.
[12] The Board made a final recall order on that basis. It said that Mr Ericson needed time to reflect on the situation and to rebuild safety and release plans, before being seen again by the Board for further consideration of parole in September 2019. An updating psychological assessment report will be required at that point.
Review decision
[13] Mr Ericson then applied for the decision to be reviewed by the Chairperson of the Parole Board, Sir Ron Young, under s 67 of the Parole Act 2002. The basis of the review was that the Department of Corrections, in support of its application for a recall, provided the Board with “deliberately edited or truncated evidence” when it could have provided complete and representative evidence.
[14] Mr Ericson’s lawyer, Mr Starling, also argued that the Department relied on notes of a conversation with Ms Smith made by a probation officer, when it should have obtained a full statement from her for the hearing. It was suggested that the Department did not do so because it would not have supported its application. Overall, Mr Starling argued that the Board was not provided with full information in support of the application and that as a result the grounds for review under s 67(3) were made out.
[15] After the final recall hearing, Mr Ericson received a four-page letter from Ms Smith. It seems the letter was written after the interim recall order but before the final recall order. It is not now possible to know when the letter was received by the Department of Corrections, who had passed it on to Mr Ericson. Mr Starling submitted that the letter contradicts the information given by Ms Smith to the probation officer, and if the Board had received the letter prior to its decision to recall Mr Ericson, it is probable they would have refused the application.
[16] In the letter, Ms Smith says she believed Mr Ericson would never hurt her, that she loved him, and that they had amicably ended their relationship. She apologised for not being honest about contact with her ex-partner and was sorry that “this brought up insecurities from” Mr Ericson’s past. She encouraged him to get all the help and counselling in prison that he “deserves and needs”.
[17] Sir Ron Young rejected the ground of challenge that the Department of Corrections had deliberately withheld the letter until after the recall hearing. There was no information as to the date on which the letter was posted nor when it was received by the Department.
[18] He also concluded that the Board was entitled to consider Ms Smith’s statements in the form they were provided. He held there was corroborating evidence for her concerns expressed in the interview, being Ms Carter’s notes that Mr Ericson had seemed controlling at the meeting in February. The Board was also aware of her position that she was in no danger from her comments at that meeting.
[19] As such, on review there was held to be no error in the Board’s approach or analysis to the recall decision.
Principles on appeal
[20] Section 68 of the Parole Act provides that an offender who is subject to a final recall order may appeal to the High Court against the decision on the grounds that the order ought not to have been made. Without limiting the matters that the Court may consider in determining the appeal, the Court must consider the need to protect the community, or any person or class of persons.
[21] The appeal is against the Board’s decision to make a final recall order, bringing into account the reasoning in the review decision.1
[22] The Court’s approach to the appeal depends on whether the challenge is to the Board’s finding that a ground for recall under s 61 has been established (the first
1 Ratima v Parole Board HC Christchurch CRI-2003-409-111, 5 February 2004; Shortland v Auckland District Parole Board HC Auckland CRI-2007-404-366, 17 December 2007.
stage), or to its assessment that having regard to public safety considerations, a final recall order is warranted (the second stage).2 If the appeal is against the first stage, the appeal is by way of rehearing in terms of Austin, Nichols & Co Inc v Stichting Lodestar, with the appeal Court to form its own view as to whether the ground was made out, with regard to the specialist function and advantaged position of the Board.3 The onus is on the appellant to establish that the Board was wrong.4 If the appeal is against the second stage, the appeal will involve a challenge to the exercise of the Board’s discretion. The appellant must establish that the Board and the reviewer proceeded on a wrong principle, failed to recognise a relevant matter or took into account an irrelevant matter, or were plainly wrong.5
[23] In a case such as this, the two stages are somewhat blurred as, in the first stage, the relevant ground for recall under s 61(a) is that “the offender poses an undue risk to the safety of the community or any person or class of persons”. As such, the consideration of public safety under the second stage is somewhat moot. The second stage is more relevant when other grounds for recall are the focus, such as the offender breaching release conditions.
[24] Mr Starling’s submissions for Mr Ericson focus on the recall decision being made in the absence of updated and additional relevant information. It seems right in the circumstances that that challenge goes to the first stage, finding that the ground for recall is made out. As such, the nature of the appeal is a rehearing, per Austin, Nichols.
Submissions
Appellant’s submissions
[25] In her submissions, Ms Wham identified issues she sees with the Board’s analysis of and reliance on the information before it, as well as issues relating to further evidence she considers should have been before the Board.
2 See Miller v Parole Board [2010] NZCA 600 at [129].
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Leylander v Parole Board [2017] NZHC 2996, [2018] NZAR 29 at [15].
5 Hart v Parole Board [1999] 3 NZLR 97 (HC).
[26] Ms Wham expressed concern about the Board’s reliance on Ms Carter’s notes of the interview she had with Ms Smith and her mother. The notes contained comments from Ms Smith, her mother, Ms Carter, and an unidentified member of the High Risk Response Team in attendance, but there was no way to determine who said what. No recording of the meeting was provided and the Department made no effort to get Ms Smith to appear at the recall hearing or provide a formal statement. As such, she submits the Department had not provided the Board with accurate, up-to-date information. The Board had the power to adjourn the hearing to allow Ms Smith to be called to give sworn evidence but did not.
[27] She submits that, despite Mr Ericson providing the Board with emails between him and Ms Smith at the time they separated, the Board ignored them. Those emails set out the reasons for the separation and show no intimidation, hostility or threats from either party.
[28] In addition, Mr Ericson was provided with a letter from Ms Smith written after he was recalled. Sir Ron Young considered this letter in his review decision. Ms Wham says this letter “more accurately sets out Ms Smith’s views” than Ms Carter’s interview notes.
[29] Ms Wham submits that the Board should not have accepted Ms Carter’s characterisation of Mr Ericson’s conduct as “offence-paralleling behaviour”. She says the breakdown of Mr Ericson’s relationship with Ms Smith was quite unlike the circumstances of the murder.
[30] Ms Wham submits that in those circumstances, the final recall order should not have been made.
Respondent’s submissions
[31] Mr Zarifeh, for the Parole Board, submits that there was no error in the Board’s decision or decision-making process.
[32] Regarding Ms Wham’s challenge to the evidence the Board considered, he refers to s 117(1) of the Parole Act, which provides:
In any hearing before the Board, the Board may receive and take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law.
[33]He also refers to s 69, which relevantly provides:
69Procedure on appeal against postponement orders, section 107 orders, and final recall orders
…
(5)On an appeal under section 68, the court may receive in evidence anything that the Board could have received at first instance.
(6)The court is not bound to allow the appeal on the ground merely of the improper admission or rejection of evidence unless, in the opinion of the court, a substantive wrong or miscarriage of justice occurred because of it.
[34] Mr Zarifeh submits that s 69(6) is an answer to Ms Wham’s complaints about the admission of Ms Carter’s notes of the interview with Ms Smith, and there cannot have been a miscarriage of justice when Ms Carter was present at the hearing to be questioned about it. Mr Ericson was also questioned at length at the hearing and was able to put forward his version of events. He submits the Board was well placed to make an assessment as to his credibility and the evidence it preferred.
[35] Mr Zarifeh emphasises that the notes of the interview, and indeed the concerns about the end of Mr Ericson’s relationship with Ms Smith, were but one factor in the factual matrix leading the Board to find Mr Ericson posed an undue risk to the community. The Board also referred to issues relating to Mr Ericson’s comments to the media about challenging his conviction; his involvement in a risky relationship; his loss of employment; his lack of stable accommodation; and his apparent dishonesty with his probation officer. Taken altogether, and assessed alongside the psychologist’s report of Mr Ericson’s risk factors, Mr Zarifeh submits the Board was right to be satisfied that he posed an undue risk to the community and this Court should confirm the order under s 70(2)(a).
Discussion
[36] This Court is to make its own decision as to whether the ground of recall is made out, that is, whether Mr Ericson poses an undue risk to the safety of the community. In doing so, I have regard to the specialist function of the Board and the advantage it had in hearing the evidence first-hand. I also take into account all the evidence that was before the Board, including the emails, and also the letter, which was only before the Chairperson on review.
[37] I accept Mr Zarifeh’s submission that there was no error in the Department not calling Ms Smith to be present at the hearing or having her make an updated statement. Section 117 allows the Board to consider any information it thinks fit. Ms Carter was present to be questioned about her notes. Ms Wham’s concerns about whether Ms Smith’s up-to-date views were represented were, and are, assuaged by the letter being before the Chairperson on review and this Court on appeal. In any event, Mr Ericson had presented the emails to the Board at the hearing and was able to present his version of events during questioning.
[38] It is relevant and notable that Ms Smith contacted the probation officer to express her concerns about Mr Ericson and her desire to end the relationship. Considering the notes of that interview, the emails and the letter, I do not see them as fundamentally inconsistent. On my view of them considered altogether, Ms Smith cares for Mr Ericson and is concerned for him. She is worried by his behaviour and wants him to get help. She considers that, given the particular challenges each of them are currently facing, it is not a good idea for them to be in a relationship at this time.
[39] I also consider that if Ms Smith did fear for her safety, it is highly unlikely she would say so in an email or a letter to Mr Ericson. At no point in the emails or letter does she expressly retract anything she said to the probation officer. Of particular concern are her comments to the officer that Mr Ericson had become angry when a television programme discussed cheating, that he had talked about his wife cheating more than once, that he had said he could have shot his wife when he discovered her cheating, and more generally that he was controlling and suspicious.
[40] Mr Ericson had the opportunity to respond to Ms Smith’s comments to the probation officer when questioned at the hearing. He agreed he had said he could have shot his wife, and generally denied the other comments, saying Ms Smith was lying, or that the description of his behaviour in the notes was explicable, and not controlling or obsessive.
[41] He also said that his employer was lying about the circumstances of the end of his employment. Even on Mr Ericson’s account, that he resigned, this demonstrates a potential lack of insight into how fortunate he was to have full time work as someone on parole for murder. While it appears he had been actively searching for work, his contact with the media was not helping him.
[42] At the point Mr Ericson was recalled, a very intense intimate relationship had broken down, he had become unemployed, and his accommodation with the Salvation Army was ending without anything else lined up. These are significant stressors. In addition, Mr Ericson had been making concerning comments to Ms Smith, and at the hearing made allegations that his employer and Ms Smith were lying when they had no obvious motive for doing so. He also had a history of not being completely honest with his probation officer. Taken in the round, these factors indicate an overall situation in which Mr Ericson poses an undue risk. The breakdown of the relationship may have been a trigger for the recall, but it was not the only factor.
[43] For these reasons, I agree with the reasoning of both the Board and the Chairperson on review, and I confirm the final recall order of the Parole Board.
Conclusion
[44] The Parole Board was right to make a final recall order in respect of Mr Ericson. The decision is confirmed and the appeal dismissed.
Solicitors:
M Starling, Barrister, Christchurch Raymond Donnnelly & Co., Christchurch
4
2
0