Ericson v New Zealand Parole Board
[2015] NZHC 375
•6 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV2014-409-000837 [2015] NZHC 375
BETWEEN JOHN FREDERICK ERICSON
Applicant
AND
THE NEW ZEALAND PAROLE BOARD First Respondent
AND
THE CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Second Respondent
AND
THE ATTORNEY-GENERAL OF NEW ZEALAND
Third Respondent
Hearing: 4 March 2015 Appearances:
Applicant in person
V J Owen for First Respondent
K Muller for Second and Third RespondentJudgment:
6 March 2015
RESERVED JUDGMENT OF DUNNINGHAM J
[1] Mr Ericson is serving a life sentence for the murder of his wife in 1999. He is aggrieved that on each occasion he has been before the New Zealand Parole Board (“the Board”), it has declined parole. He has availed himself of all legal avenues to challenge the Parole Board’s decisions. The most recently concluded legal challenge was an application for judicial review of the 2012 Board decision declining parole, and of the subsequent review decision confirming the Board’s decision. That application was dismissed by His Honour, Justice MacKenzie in a decision dated
19 July 2013.1
1 Ericson v New Zealand Parole Board [2013] NZHC 1790.
ERICSON v THE NEW ZEALAND PAROLE BOARD AND ORS [2015] NZHC 375 [6 March 2015]
[2] The present proceedings are also judicial review proceedings. They do not seem to focus on a particular Board decision. Rather they globally challenge the decisions of the Board because they have considered his suitability for parole under the provisions of the Parole Act 2002 (the 2002 Act). Mr Ericson asserts that his conviction was under the Criminal Justice Act 1985 (the 1985 Act) and therefore parole should be considered under that Act and not under the 2002 Act which, he claims, applies “more punitive and onerous conditions” on obtaining parole.
[3] The respondents have applied to strike-out the statement of claim on the grounds that:
(a) it discloses no reasonably arguable cause of action because the effect of s 8 of the 2002 Act is that the applicant’s eligibility and consideration for release on parole must be determined under the 2002
Act ; and
(b)the statement of claim is vexatious and/or otherwise an abuse of process because the legal issues it raises have already been heard and determined by MacKenzie J, in Ericson v New Zealand Parole Board.2
[4] The Attorney-General also asserts that he was improperly joined as no right to relief is sought from him.
[5] Ironically, contemporaneously with the hearing of the strike-out application, I heard a separate application for judicial review3 of the Board’s 2014 decision regarding Mr Ericson, which was argued by counsel. In that case, it was expressly argued on behalf of Mr Ericson that the 2002 Act applied, and provided a simpler, and more easily satisfied test, than the test which applied under the 1985 Act.
[6] Notwithstanding that submission, Mr Ericson maintains in these proceedings, that the Parole Board has been conducting assessments and hearings “in violation of
New Zealand Law” and seeks by way of relief:
2 Ericson v New Zealand Parole Board [2013] NZHC 1790.
3 Ericson v New Zealand Parole Board CIV-2014-409-614.
(a) that the Court direct the Board to release him under the conditions that applied at the time of his conviction;
(b)that the Chief Executive, Department of Corrections, direct his staff to deal with Mr Ericson under the applicable legislation that applied at the time of conviction; and
(c) that Mr Ericson receive an apology from the Chairman of the Board for being dealt with by the Board under “the wrong legislation”.
[7] The sole issue for me to determine in this hearing is whether one or more of the grounds for striking-out the application are met.
The Parole Board’s position
[8] Ms Owen, for the Board, explained that the Board does not usually instruct counsel to represent it in judicial review challenges to its decisions, but does so when the proceedings raise issues of principle that extend beyond the immediate case. Here, if Mr Ericson’s claim was upheld, it would affect how the Board considers all
offenders with pre-cd sentences,4 hence the Board’s involvement.
[9] In summary, the Board submits that the provisions of the 2002 Act are clear and unambiguous in replacing the relevant sections of the 1985 Act.
[10] Section 8 of the 2002 Act is the key provision and provides as follows:
8 Part applies to all offenders
(1) This Part applies to all offenders who are subject to a sentence of imprisonment, including (without limitation) offenders who, on the commencement date, are subject to a pre-cd sentence and who (for instance)—
(a) are eligible for parole; or
(b) are to be released under section 104 at their final release date; or
4 “Pre-cd Sentence” is defined in s 4 of the Parole Act 2002 as meaning “a sentence of imprisonment that is imposed before the commencement date”.
(c) are under consideration for release on parole … ; or
(d) are on parole … , or have been given early release under
section 94 of the Criminal Justice Act 1985; or
(e) are subject to an application for a recall order, or to an interim recall order or a recall order.
(2) Every decision about, or in any way relating to, the release of an offender that is made after the commencement date must be made under this Part unless specifically provided otherwise.
(3) This Part does not in itself affect the validity of any decision made under Parts 4 or 6 of the Criminal Justice Act 1985 about, or in any way relating to, the release of an offender.
[11] Section 8(1) clearly applies to offenders who are subject to pre-cd sentences as at 30 June 2002 and s 8(2) provides that all decisions on the release of an offender must be made under Part 1 of the 2002 Act. Subpart 4 of Part 1 is entitled “transitional arrangements for offenders subject to pre-cd sentence” and specifically provides for release at the final release date.
[12] The Board says that s 8 and subpart 4 of Part 1 of the Act are all consistent with s 17 of the Interpretation Act 1999 (which includes the concept that the repeal of an Act does not effect the validity of anything done under that Act). In short, the
2002 Act is a complete regime taking over from the 1985 Act, with its own express provisions for dealing with people subject to pre-cd sentences and there was no scope for arguing that the 1985 Act still applied to people such as Mr Ericson.
[13] The second ground for the strike-out application was that the proceedings were vexatious or otherwise an abuse of process because Mr Ericson had already argued this issue before MacKenzie J and that Judge had determined as follows:5
[10] The next matter to be considered is Mr Ericson’s submission that the Board has erred in dealing with his case under the Parole Act. He submits that he is not subject to that Act, rather his case is governed by its predecessor, the Criminal Justice Act 1985, in force when Mr Ericson was sentenced in April 2000. The Parole Act came into force from 30 June 2002. It provides for sentences of imprisonment which had been imposed before the commencement date. Such a sentence is a “pre-cd sentence”, as defined in s 4. All prisoners who at the commencement date were serving a pre-cd sentence became, in general, subject to the Parole Act, in place of the Criminal Justice Act. …
5 See paras [10-14] Ericson v New Zealand Parole Board [2013] NZHC 1790.
[11] Mr Ericson’s submission is not sustainable, in the light of the decision of the Supreme Court in Morgan v Superintendent, Rimutaka Prison. Elias CJ said that there is no argument about the meaning of the Parole Act, and that by s 8, Part 1 applies to all offenders whether or not sentenced before the Act came into force. Part 1 contains the relevant provisions as to eligibility for, and granting of parole. Blanchard J said that the Parole Act provisions are very clear and leave no room for general continued resort to Part 6 of the Criminal Justice Act 1985.
…
[14] The law is thus very clear that Mr Ericson’s eligibility for parole is to be determined under the Parole Act, not under the repealed provisions of the Criminal Justice Act.
…
[16] This ground of Mr Ericson’s application must accordingly also fail.
[14] Thus the identical issue had already been canvassed fully before this Court and it would be an abuse of process to allow that issue to be re-litigated.
The Second and Third Respondent’s position
[15] The second and third respondents supported the Parole Board’s position, again referring to the express provisions in the 2002 Act governing individuals who were subject to a pre-cd sentence including that the parole eligibility dates of such offenders sentenced under the 1985 Act are preserved by provisions within Part 1 of the 2002 Act.
[16] The second and third respondents’ submissions also identified inconsistencies in Mr Ericson’s pleadings. At points, it appears he accepted the respondents were required, by law, to apply the 2002 Act, but he nevertheless argued that he has wrongly been denied the right to be dealt with under the 1985 Act and this is the
reason for his failure to obtain parole.6
[17] They also submit that the statutory provisions referred to and relied on by
Mr Ericson do not have the effect he contends for. Specifically:
6 See paragraphs 3-4 of the statement of claim and paragraph 6 of the notice of opposition.
(a) s 17 of the Interpretation Act 1999 does not preserve the operation of Parts 4 and 6 of the 1985 Act from the repeal of those parts and the enactment of s 8;
(b) none of the transitional provisions in the Sentencing Act 2002 apply to
Mr Ericson; and
(c) section 6 of the Sentencing Act 2002 (which provides that where the maximum penalty for a crime increases between the date on which an offender is convicted and date on which he or she is sentenced, they are not to be disadvantaged), was irrelevant in this case.
[18] Finally, Mr Ericson does not assert any particular failure by the second and third respondents as a result of the alleged misapplication of the 2002 Act.
Principles applying to applications to strike out proceedings
[19] The principles governing strike out applications are well settled.7 The Court proceeds on the assumption that the facts pleaded in the statement of claim are true. Thus, for the purposes of this application, I do not question, for example, Mr Ericson’s assertion that his prospects of getting parole would have been better under the 1985 Act than under the 2002 Act.
[20] Before striking out the proceeding, I must be satisfied that the causes of action are so clearly untenable that they cannot possibly succeed. The jurisdiction is to be exercised sparingly and only in a clear case where the Court is satisfied it has sufficient material before it to make that decision. A proceeding may be struck out on the basis of abuse of process, where it can be shown that the respondent is trying
to re-litigate matters already determined.8
7 See Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at [267]; North Shore City
Council v Attorney-General [2012] NZSC 49.
8 Hunter v Chief Constable of the West Midlands Police [1982] AC529 (HL) at 541.
Should the proceeding be struck out?
[21] I am satisfied that this is a clear case where it is appropriate to strike out the proceedings on all grounds raised by the respondents.
[22] First, for the reasons advanced by the respondents, and traversed in the decision of Mackenzie J, it is clear that the 2002 Act governs the grant of parole whether the prisoner was sentenced before or after the commencement of that Act. The simple fact is that the provisions of s 8 of the 2002 Act expressly state that it applies to all offenders, whether or not sentenced before the Act came into force. There can be no doubt, given the clear and unambiguous provisions of the 2002 Act, that Mr Ericson’s eligibility for parole is to be determined under that Act, not under the repealed provisions of the 1985 Act.
[23] Mr Ericson argued that if this judicial review application was struck out, then it would “strike out my warrant of imprisonment and conviction for murder”, which was, of course, determined under the 1985 Act. However, that submission is directly addressed by s 17 of the Interpretation Act 1999 which confirms that the repeal of an Act does not affect the validity, invalidity, effect or consequences of anything done or suffered under it. His conviction and sentence for murder, therefore, stand, as a consequence of s 17, but the question of the grant of parole after the 2002 Act came into force is governed by that legislation.
[24] His next argument relies on s 6 of the Sentencing Act 2002 which provides that, where a penalty has been varied between the commission of the offence and sentencing, an offender should have the benefit of the lesser penalty. However, that section is not relevant to the grant of parole. The maximum sentence for murder is life. That has not changed as a consequence of the introduction of the 2002 Act, nor was there any change to that between the date the crime was committed and the date he was sentenced.
[25] I am equally satisfied that the proceedings should be struck out as an abuse of process because it re-litigates an issue which was fully addressed and determined in the decision of Mackenzie J in 2013. The issue is, therefore, res judicata.
[26] Mr Ericson’s response to that is that “this is a new judicial review and totally independent of my prior proceedings”. I accept this is a new judicial review application, and encompasses more recent decisions of the Parole Board than were addressed by Mackenzie J in the 2013 decision. However, the question is whether the legal issue is the same. I am abundantly satisfied it is. The issue is whether a person such as Mr Ericson, who was sentenced to imprisonment before the enactment of the 2002 Act, should have his parole decision considered under the
2002 Act or the 1985 Act which applied at the time of conviction. This is exactly the same issue which was addressed by Mackenzie J in the 2013 decision.
[27] Given my conclusion that the proceedings should be struck out in their entirety under High Court Rule 15.1, the second and third respondents’ request to have them struck out as respondents need not be considered.
Costs
[28] The respondents all seek costs, with the second and third respondents suggesting they be on a 2B basis. I have not heard from Mr Ericson in relation to costs and therefore reserve costs.
[29] My initial view is that, in normal circumstances, 2B costs would be awarded. If Mr Ericson wishes to bring to my attention any issue that has a bearing on costs, he has 10 working days in which to file written submissions on that issue. The respondents, should they choose, are to file submissions in reply within a further five working days.
Solicitors:
Michael Starling, Christchurch
Vicki Owen, Wellington
Crown Law, Wellington
Copy to: Mr Ericson
2
0