G v Commissioner of Police
[2023] NZHC 19
•20 January 2023
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF APPLICANT TO CONTINUE UNTIL FURTHER ORDER OF THE COURT IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2021-485-399
[2023] NZHC 19
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER
of an application for judicial review of a determination(s) made under s 17(1) and determination notice pursuant to s 19 of the Returning Offenders (Management and Information) Act 2015
BETWEEN
G
Applicant
AND
COMMISSIONER OF POLICE
First Respondent
AND
CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
Second Respondent
AND
WELLINGTON DISTRICT COURT
Third Respondent
Hearing: On the Papers Counsel:
Applicant in Person
A M Powell for First Respondent
Judgment:
20 January 2023
JUDGMENT OF ISAC J
[Application for leave to appeal]
G v POLICE & ORS [2023] NZHC 19 [20 January 2023]
Introduction
[1] In a judgment of 19 December 2022, Gwyn J found that the Returning Offenders (Management and Information) Act 2015 (the Act) does not apply to G because his criminal convictions in Australia predate the commencement of the Act.1 On 23 December 2022, I made an interim order suspending implementation of the declaratory order insofar as it might affect returned offenders other than G pending an appeal of the Court’s substantive judgment.2
[2] G now seeks leave to appeal my interlocutory judgment.3 The Commissioner of Police and Chief Executive of the Department of Corrections do not oppose the application. I have concluded that leave should be granted for the reasons that follow.
Background
[3] The issues and background to this proceeding are comprehensively set out in Gwyn J’s substantive decision of 19 December 2022,4 and my interim relief decision of 23 December 2022.5 In short, G, a New Zealand citizen living in Australia at the time, committed drug-dealing offences in Australia in 2012 and was prosecuted. He was convicted in 2014 and subsequently sentenced in September 2015. The Act was introduced to the House of Representatives and passed under urgency in November 2015. On 26 September 2019, the Commissioner of Police determined under s 17 of the Act that G was a “returning prisoner” for the purposes of the Act. On 10 October 2019, G was deported from Australia to New Zealand and was subject to conditions and requirements purportedly imposed under the Act.
[4] G sought judicial review of the Commissioner’s determination that he was a returning prisoner under the Act. In her Honour’s decision, Gwyn J found that the s 17 determination amounted to punishment with retrospective effect. As there was no clear parliamentary intention that the Act should apply retrospectively, the determination was unlawful because G’s offending occurred prior to the commencement of the Act.6
1 G v Commissioner of Police [2022] NZHC 3514 [Substantive judgment].
2 G v Police & Ors [2022] NZHC 3628 [Interim relief decision].
3 Senior Courts Act 2016, s 56(3).
4 Substantive judgment, above n 1, at [5]–[13] and [37].
5 Interim relief decision, above n 2, at [7]–[8].
6 Substantive judgment, above n 1, at [96]–[102].
The principle of legality and s 25(g) of the New Zealand Bill of Rights Act 1990 supported that view. She made a declaration to that effect and quashed the s 17 determination.7
[5] The Crown appealed the substantive decision which is scheduled to be heard in the Court of Appeal on 2 February 2023. The Commissioner of Police sought an urgent stay of Gwyn J’s substantive decision on the basis that constitutional convention required the Executive to comply with the direction, unless relieved of their obligation as the result of a successful appeal or a stay order. Three persons identified in the affidavit evidence filed in support of their application were said to constitute a grave risk to the safety of the community if they were to be released from the performance of their release conditions. There were no such concerns with respect to G personally.8
[6] In my interim relief decision, I considered that the Court has a power to suspend the declaration’s effect in relation to persons other than G, notwithstanding its non-executory character, on the basis that the power in r 12(1) of the Court of Appeal (Civil) Rules 2005 (the Rules) was intended to provide a mechanism to achieve justice pending an appeal when required.9 I exercised my discretion to grant interim relief. On the evidence I was satisfied that implementation of the declaration generally could result in an increased risk to community safety. This concern had to be balanced with the interests of returnees who might be unable to be free of conditions and requirements declared to be unlawful by this Court, but subject to appeal.10
[7]G says in granting an interim order two errors arose:
(a)first, I was wrong to find the Court had jurisdiction to grant interim relief under r 12 of the Court of Appeal (Civil) Rules 2005, and my decision is contrary to previous High Court authority; and
7 At [156(a) and (b)].
8 Interim relief decision, above n 2, at [2].
9 At [14].
10 At [20]–[21].
(b)second, the exercise of the discretion to grant interim relief was plainly wrong: the declaration affects the interests of a large number of people; and the three individuals referred to in evidence were not served with the first respondent’s application and were not provided with an opportunity to be heard in a decision affecting their interests.
Approach to Leave to Appeal
[8] G appeals this Court’s decision granting interim relief under s 56(3) of the Senior Courts Act 2016. The Court of Appeal may hear and determine an appeal from an order or decision of the High Court made on an interlocutory application if leave to appeal is granted by the High Court.11 The requirement to seek leave is a “filtering mechanism” and the factors to be taken into account are that:12
(a)a high threshold exists;
(b)the applicant must identify an arguable error of law or fact;
(c)the alleged error should be of general or public importance warranting determination or otherwise of sufficient importance to the applicant to outweigh the lack of general or precedential value;
(d)the circumstances must warrant incurring further delay; and
(e)the ultimate question is whether the interests of justice are served by granting leave.
Discussion
[9] This being an urgent application, there were no detailed submissions on G’s proposed grounds of appeal. However, the memoranda provided to the Court by G and the first and second respondents were of assistance.
11 Senior Courts Act 2016, s 56(1) and (3).
12 Finewood Upholstery Ltd v Vaughan [2017] NZHC 1679 at [9]–[14], cited with approval in
Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
[10] This case meets the high threshold required for leave to appeal an interlocutory decision. The Crown accepts that G has identified questions of law of general and public importance capable of proper argument warranting an appeal. In light of the authorities in the High Court, there is a question whether the Court can grant interim relief staying a non-executory order.13 In addition, as G argues, the interim order may affect a large number of people who might otherwise be entitled to release from orders and conditions imposed under the Act.
[11] I do not consider that granting leave to appeal would occasion any significant delay. G suggests that his proposed appeal might be capable of resolution as part of the substantive appeal to be heard on 2 February 2022. Of course, whether that is possible is a matter for the Court of Appeal. In addition, as the respondents have noted, whether G’s appeal will require consideration by that Court may also depend on its view of the merits of the respondents’ appeal.
Result
[12] G’s application for leave to appeal, in relation to the interim relief decision, is granted. Subject to a contrary view of the Court of Appeal, the issues appear to be:
(a)whether the High Court has a power to grant an interim order under r 12 of the Court of Appeal (Civil) Rules 2005 suspending a declaratory order; and
(b)if so, whether the Court was plainly wrong in the exercise of its discretion.
Isac J
13 G relies on Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 3470. For a helpful discussion of the approach by the Canadian courts to the suspension of declaratory orders having constitutional effect, and its consideration in New Zealand, see Tim Stephens and Sarah Armstrong Injunctions and other Emergency Relief (New Zealand Law Society, 2018) at 95–106, and the discussion at 103–105.
Solicitors:
Crown Law Office, Wellington
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