G v Commissioner of Police
[2022] NZHC 3628
•23 December 2022
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
[2022] NZHC 3628
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: 23 December 2022 Counsel:
Applicant in Person
A M Powell for First Respondent D A Ewen as amicus curiae
Judgment:
23 December 2022
JUDGMENT OF ISAC J
[Application for stay pending appeal]
G v POLICE & ORS [2022] NZHC 3628 [23 December 2022]
Introduction and the application for a stay
[1] The Commissioner of Police seeks an urgent stay of a decision of this Court finding that the Returning Offenders (Management and Information) Act 2015 does not apply to the applicant, G, because his convictions in Australia predated the commencement of the Act.1 The Court made a declaration that a determination by the Commissioner under s 17 of the Act that G was a returning prisoner was unlawful.
Ancillary orders consequent on the declaration were also made.2
[2] The reason for the stay application is that the first and second respondents consider that generally, in obedience to constitutional convention, the Executive Government should, unless relieved of the obligation to do so by a successful appeal or an order in the nature of a stay, give effect to the law as found by the Court, in respect of other returning offenders whose position is indistinguishable from G’s position. However, other persons, identified in affidavit evidence filed in support of the application, are said to constitute a grave risk to the safety of the community if they were to be released from performance of the release conditions by which they are currently being administered in the community by the Department of Corrections. No such concern is held in respect of G.
[3] G opposes the application. His primary submission is that the judgment of the High Court is correct and that it is for the Court of Appeal to stay the decision, should it consider it appropriate, pending determination of the Crown’s appeal.
[4] Given the urgency and importance of the application for the parties and all those who might be affected by it, my reasons are necessarily brief. Two issues arose at the hearing today that require consideration:
(a)First, whether the Court has jurisdiction to grant a stay or interim relief given the relief ordered was declaratory rather than executory; and
(b)Second, if it does have jurisdiction, where the balance of convenience lies pending determination of the appeal.
1 G v Commissioner of Police [2022] NZHC 3514.
2 At [156(a)-(e)].
[5] Finally, I note that an application of this kind should ordinarily come before the judge whose decision is subject to appeal. Given the time of year, however, that has not been possible, and the application was referred to me to determine as the Duty Judge.
Principles applicable to stay pending appeal
[6] Under r 12(3) of the Court of Appeal (Civil) Rules 2005, the High Court may stay enforcement of its own judgment. The Court determines an application on the balance of convenience between the parties in order to serve the overall interests of justice.3 The factors to be taken into account are well known. They are:4
(a)whether the appeal may be rendered nugatory by the lack of a stay;
(b)the bona fides of the applicant as to the prosecution of the appeal;
(c)whether the successful party would be injuriously affected by the stay;
(d)the effect on any third parties;
(e)the importance or public interest;
(f)the apparent strength of the appeal; and
(g)the overall balance of convenience.
Background and judgment of the Court
[7] The relevant background is helpfully set out in Gwyn J’s decision of 19 December 2022.5 The following is a brief summary:
3 Philip Morris v Ligget & Myers Tobacco Co [1977] 2 NZLR 41 (CA) at 43 (per Cooke J).
4 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11]; and Dymocks Franchise Systems (NSW) Pty Ltd v Bilgola Enterprises Ltd (1999) 13 PRNZ 48 (HC) at [9].
5 G v Commissioner of Police, above n 1 at [5]-[13]; [37].
(a)G immigrated to New Zealand with his siblings and parents in 1991 when he was 5 years old. He became a citizen in 1996 and the following year, at the age of 11, his family moved to Australia.
(b)In April-May 2012 G committed drug dealing offences in Australia and in August 2014 he was found guilty. In September 2015 he was sentenced in the New South Wales District Court to an aggregate term of eight years’ imprisonment, with a non-parole period of five years and six months.
(c)In November 2015 the Returning Offenders (Management and Information) Act was introduced to the House of Representatives and passed under urgency.
(d)Following notification by Australian officials that G would be deported to New Zealand, on 26 September 2019 the Commissioner of Police made a determination under s 17 of the Act that G was a returning prisoner for the purposes of the returning offenders legislation.
(e)Then, on 10 October 2019, G was deported from Australia to New Zealand. Thereafter he was subject to various conditions and requirements purportedly imposed under the Act.
[8] In her decision, Gwyn J found that in terms of s 25(g) of the New Zealand Bill of Rights Act 1990, the s 17 determination of the Commissioner amounted to a punishment. As there was no clear Parliamentary intention that the Act should have retrospective effect, the determination was unlawful because G’s offending occurred before the Act was passed. She held:6
While it is clear that the Parliament saw an urgent need to enact legislation that would provide a framework for managing returning offenders, the question of retrospective application of the legislation was not directly addressed in the House.
6 At [96]-[102].
As already noted, the Attorney-General’s s 7 report to the House addressed s 26 of the Bill of Rights by finding that none of the conditions that could be imposed on returning offenders had a punitive character and could only be imposed by a Court.
I surmise that it was because of the conclusion that standard and special conditions do not have a punitive character, that the s 7 report did not go on to consider s 25(g) of the Bill of Rights or s 6 of the Sentencing Act.
The Regulatory Impact Statement addresses retrospectivity by reference to s 7 of the Interpretation Act 1999 and only to the extent that it assumes that the legislation would only apply to people returning to New Zealand after the legislation came into force, with the expectation that the Bill would not be introduced to Parliament until early 2016.
On the statutory review of the ROMI Act, under s 37, the Justice Committee’s September 2019 report to the House discusses the issues raised by the New Zealand Law Society (NZLS) in its submission, including that the ROMI Act breaches the protections against retroactive penalties and double jeopardy. The Committee repeats the Attorney-General’s view, expressed in the s 7 report, where the Attorney-General said that the conditions imposed on returning prisoners did not have a punitive effect. The Committee was satisfied with that analysis, noting “we acknowledge that a main purpose of the supervision regime is to reduce the likelihood of a returning offender committing an offence after their return to New Zealand.” The Committee did not recommend any change to the Act in this respect.
I conclude that the Determination amounts to a punishment, with retrospective effect. There is no clear parliamentary purpose that s 17 should have retrospective effect. In those circumstances, the common law presumption against retrospectivity, and s 6 of the Sentencing Act and s 25(g) of the Bill of Rights, to the extent they are applicable, mean that the s 17 of the ROMI Act does not apply to G. As the Supreme Court said in D (SC 31/2019) v New Zealand Police,69 s 25(g) of the Bill of Rights and the principle of legality support that view.
The Determination is quashed.
Does the Court have a power to stay the declaration in this case?
[9] Mr Powell, who appeared for the Crown, submitted that as a matter constitutional convention and comity between the executive and judicial branches of Government, the Executive is bound to apply the law as it is declared by the court from time-to-time whether a judgment is under appeal or not. It is not therefore open to the Crown to conduct itself in relation to other 501 deportees in a manner inconsistent with the High Court’s decision. As a matter of constitutional obligation the Executive now seeks a stay pending determination of its appeal. And the reason for that application is that the Crown considers there may be irreparable harm caused
if its appeal is ultimately successful but the High Court judgment is not stayed in the interim.
[10] Mr Powell also acknowledged that, as a rule, it is only generally possible to stay executory orders. Declarations are not executory, but the power in r 12(1) of the Court of Appeal (Civil) Rules extends beyond a stay and includes a power to grant “interim relief”. Rule 12 is intended to preserve a party’s position so no irreparable harm is suffered pending appeal and, pragmatically, Mr Powell says it cannot be the position that the Crown must apply a judgment under appeal but can do nothing about it in the interim. The power granted by r 12 must be wide enough to accommodate the issue that arises in the present case. Finally, the Crown’s application seeks only to stay or suspend the effect of the judgment insofar as it might affect other persons beyond
G. Insofar as the orders affect his interests, the Crown “can and will give effect to the consequent orders made in respect of the applicant.”
[11] At short notice, counsel assisting, Mr Ewen, helpfully brought my attention to a series of judgments drawing a distinction between the Court’s power to stay its orders depending on whether the order is executory or declaratory.7 In Willowford Family Trust v Christchurch City Council, Panckhurst J found that the Court lacked the power to stay, or grant interim relief in relation to, a declaration of invalidity in relation to a bylaw. He said:8
I am not brought to the view that there is jurisdiction to grant interim relief in the present circumstances, even on some partial basis. The absence of any previous cases in which, pending appeal, a stay or interim relief has been granted in the context of a declaration of invalidity is, I think, confirmation of the fact that jurisdiction is absent. It is one thing to stay a proceeding which is extant, or to stay an order which is executory in nature, but the present declaration became operative when it was made. To contemplate the revival at this point of a bylaw which I have found to be invalid impresses me as conceptually wrong.
…
For these reasons I do not believe I have jurisdiction to order a stay, or grant interim relief, nor that it is appropriate to intervene pursuant to the Court’s
7 Willowford Family Trust v Christchurch City Council [2006] 1 NZLR 791, (2005) 17 PRNZ 867(HC), at [22]; Royal Forest and Bird Protection Society of New Zealand Inc v Minister of Fisheries [2021] NZHC 2282 at [12]-[14], and Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 3470 at [16].
8 Willowford Family Trust v Christchurch City Council, above n 7 at [22] and [24].
inherent jurisdiction. While it is a curious feature of this case that a substantial part of the bylaw withstood scrutiny and was only quashed in effect by a side wind, the fact remains that severance of the unreasonable part was not sought, rather clauses 6 and 7 of the bylaw as a whole were quashed. Regardless of this feature, the declaration of invalidity was made and from that I do not consider there can be any turning back.
[12] Mr Ewen submitted that the declaration as to the respondent’s status is not executory and, on the authorities, cannot be the subject of a stay under r 12. I took him to submit that the same limitation would apply to the Court of Appeal, at least until that Court had dealt with the Crown’s appeal on its merits.
[13] G argued that given the constitutional significance of the case, it is inappropriate for the High Court to consider staying its own judgment; that is a matter that ought to be determined by the Court of Appeal.
Consideration
[14] In the limited time available to me it is not possible to provide a comprehensive answer to the important jurisdictional and constitutional issues the application raises. However, I am satisfied that the power in r 12(1) to grant interim relief was intended to provide a mechanism to achieve justice pending an appeal when required. I agree with Mr Powell’s submission that where the Court is satisfied there is a risk of irreparable harm to a party pending an appeal, it is able to preserve a position in respect of both executory and declaratory orders. To that extent, I respectfully arrive at a different conclusion from that of the Court in Willowford Family Trust. As the Court in Bayer New Zealand Limited v Minister for Primary Industries observed:9
Rule 12(3)(b) applies here. A stay of the proceeding or execution does not cover declaratory orders. Both counsel agreed that this was the position.
MPI, nevertheless, also noted that the fact the stay related to a “declaratory order” as opposed to an “executory order” (which is enforceable by execution) meant that the Court, in making a declaration, is merely authoritatively indicating that a certain interpretation has always been the true interpretation. Therefore, the Court does not create rights but merely indicates what they have always been. The authorities suggest that if an appeal is lodged against a declaratory order, conceptually there can be no stay of proceeding. That is why this application must proceed under r 12(3)(b) and the appropriate approach is to seek interim relief.
9 Bayer New Zealand Ltd v Ministry for Primary Industries [2020] NZHC 3470 (footnotes omitted).
[15] While the conception of a declaration in these terms is conventional, it should not be forgotten that decisions of the courts are subject to appeal, and beyond appeal changing societal circumstances may result in changing judicial opinions and answers to particular questions. It would be wrong to think of a judgment as an inviolable pronouncement for all time.
[16] And while I accept Mr Ewen’s submission that the application seeks to stay the High Court’s reasons rather than its orders, the application has been made for the purpose of comity and out of constitutional obligation. Essentially the Executive is seeking the Court’s leave to suspend implementation of its judgment pending appeal. I do not consider the Court is unable to accommodate such a request, even where the circumstances warrant it, due to a lack of power. I am satisfied that r 12(3)(b) provides the Court with the ability, pending the determination of an appeal to the Court of Appeal, to grant “any” interim order. I proceed on that basis.
Should the Court grant the interim order?
[17] The overriding criterion in my view is the balance of convenience. Here the Commissioner and the Department of Corrections say that if the High Court decision is given general effect beyond G’s personal interests there is a risk of irreparable harm. Mr Gareth Fowler, the General Manager of Operations Delivery for Corrections, has deposed:
I have significant concerns about the risks to the public were the Department to cease electronic monitoring of these offenders, as we would be unable to appropriately respond to support community safety.
[18] In support, Mr Fowler has provided profiles for three offenders who were convicted of serious criminal offences in Australia prior to 18 November 2015 and who are currently subject to monitoring and other orders imposed under the Act.
[19] G acknowledged that the affidavit evidence filed by the respondents raised a genuine issue about the risk of harm pending determination of the appeal. However, he submitted that the three individuals identified in the affidavit in support of the application are just three out of thousands of people “returned” to New Zealand. He submitted that the interests of all other returnees to be free of unlawful conditions and
restrictions on their freedoms weighs against any suspension of the Court’s judgment pending appeal.
[20] Based on the evidence provided, it is clear that implementation more broadly of the Court’s decision could result in an increased risk to community safety as a result of the risk of reoffending of some returnees. Having said that, it is important to record that concern does not apply to G.
[21] As Mr Powell submitted, the interests to be balanced in this case are those of the respondents on behalf of the community, and those returnees who might be unable to be free of conditions and restrictions imposed on them under the Act until the appeal is determined. No prejudice will be caused to G as a result of an interim order because the respondents do not seek to stay its effect in relation to him personally.
[22] Counsel and G did not address me on the strength of the proposed appeal. I make no comment other than the grounds identified in the notice of appeal at least appear to be arguable. There is no suggestion the appeal has been brough other than in good faith. And the issue to be determined on appeal is one of public importance.
[23] The appeal has been set down as a matter of priority, and I am advised that it will be heard on 2 February 2023. Given the limited delay before the hearing, and the risk of harm that might arise in the interim should the Commissioner’s appeal prove to be successful, I am satisfied that the balance of convenience favours the grant of an interim order as sought.
Conclusion and result
[24]The first respondent’s application for an interim order is granted.
[25] I stay the effect of the judgment of the Court dated 19 December 2022 to the extent the judgment might impose an obligation, whether legal or constitutional, upon the Executive to give effect to the ruling in respect of persons other than the applicant, pending determination of the appeal filed in the Court of Appeal under CA 717/2022 and for hearing in that Court on 2 February 2022.
[26]Leave to apply is reserved. So too is the question of costs.
Isac J
Solicitors:
Crown Law Office, Wellington
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