Marino v Chief Executive of the Department of Corrections

[2016] NZHC 3074

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2016-485-785

CIV 2016-485-838 [2016] NZHC 3074

UNDER

THE NEW ZEALAND BILL OF

RIGHTS ACT 1990

BETWEEN

MICHAEL MARINO Applicant

AND

CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

AND

SHANE ARRON GARDINER Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	23 November 2016
Counsel:	D Ewen for Applicants D J Perkins and F G Biggs for Respondent
Judgment:	15 December 2016

JUDGMENT OF SIMON FRANCE J

[1]      The  period  an  offender  spends  in  pre-sentence  detention  on  a  charge  is credited to their subsequent sentence on that charge.1    Recently the Supreme Court held that the way this calculation was being done under the Parole Act 2002 was incorrect.2   The consequence for many prisoners is that they have spent longer in jail

than what was authorised by the sentence they were serving.

1      Parole Act 2002, ss 89–92.

2      Marino v Chief Executive, Department of Corrections [2016] NZSC 127.

MARINO v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2016] NZHC 3074 [15

December 2016]

[2]      The applicants in this case are two such prisoners.  If their release dates under the Parole Act 2002 are calculated in accordance with the Supreme Court judgment, Mr Marino spent 127 days in custody more than his sentence required or authorised. For Mr Gardiner the figure is 30 days.   Both  men have filed  civil proceedings claiming compensation for these periods of false imprisonment:3

False or wrongful imprisonment is committed when one person is detained or imprisoned by another person acting without lawful justification.  There must be an intention to detain, but lack of fault in wrongly believing that there is lawful authority to detain is irrelevant.

[3]     Two points of relevance emerge from this statement of the law: false imprisonment  occurs  when  there  is  no  longer  any  lawful  authority  to  detain someone,  and  good  faith/lack  of  fault  on  the  part  of  the  detainer  is  irrelevant. Liability is what is termed strict.

[4]      At issue in this judgment is whether the Supreme Court ruling necessarily means the prisoners were detained without lawful justification for those periods of

127  and  30  days  respectively.    The  Chief  Executive  argues  that  they  were  not because their calculations were correctly done in accordance with the law as the Court of Appeal (the Taylor case) had declared it to be.4    Although the Supreme Court has now said the Taylor case was wrong, that should not create retrospective unlawfulness resulting in liability for false imprisonment.

[5]      To avoid this outcome, the Chief Executive asks this Court to hold that the Supreme   Court   judgment   only   takes   effect   from   the   day   it   was   issued (22 September 2016). This would mean:

(a)       up until 22 September 2016, the calculation of pre-conviction custody credit was to be done in accordance with the Taylor case;

(b)on 22 September 2016 and thereafter it was to be done in accordance with the Supreme Court case.

3      S Todd “Trespass to the Person” in Stephen Todd (ed) The Law of Torts in New Zealand 4th ed Brookers Wellington 2005  at  ch 4.5.    The  current  edition  is  the  7th;  the  passage  appears throughout pages 110–113.

4      Taylor v Superintendant of Auckland Prison [2003] 3 NZLR 752 (CA).

The effect would be that no liability for false imprisonment would arise as a result of the Supreme Court case unless a mistake was made in applying the rules of either case at their respective times.

[6]      This may read as a sensible enough proposition, but in legal terms it would represent something that has not previously been done in New Zealand.  It would be to say that the effect of a judgment overturning a previous case is “prospective” only. Further, that decisions made in reliance on the earlier case remain correct even though the case itself was wrong.  Such an analysis would be contrary to how our law has traditionally operated.

[7]      The traditional approach can be explained by reference to the interpretation of statutes.5   The Parole Act 2002 came into force on 30 June 2002.  Let us suppose that the words of the statute have not changed since then.  The effect of the Chief Executive’s submission, if accepted, would be to say that until 22 September 2016 the words meant one thing, and then after that, despite the words not changing and despite Parliament doing nothing, the words changed their meaning to something completely different.

[8]      The oddity involved in this is one reason why the traditional theory, called the declaratory theory of the law, has approached the matter differently.  Under the declaratory theory all the Supreme Court has done is finally clarify what the words of the statute always meant.   Cases along the way may have reached other interpretations, but they were not final and are now to be seen as incorrect.

[9]      There is emerging authority to say that it is possible for a Court to rule that, contrary to the declaratory theory, the effect of its judgment is limited to the future.

The possibility of a Court doing this has been recognised in New Zealand,6  the

5      It applies to all decisions of courts that have precedent effect.

6      Chamberlains v Lai [2006] NZSC 70, [2007] 2 NZLR 7. The judgment of Tipping J reviews some of the authorities from other jurisdictions, at [134]–[138]. In the area of sentencing guidelines, where decisions are constrained by specific rules about retrospectivity, the new guidelines take effect from the date of the judgment (R v Taueki [2005] 3 NZLR 372 at [60]) or a set date (R v AM [2010] NZCA 114; [2010] 2 NZLR 750 at [125]).

United Kingdom,7 Canada,8 Singapore9 and India.10   The High Court of Australia has rejected the idea.11

[10]     Despite recognising it as a theoretical possibility, prospective overruling, as it is called, has not actually been done in many of these jurisdictions, and certainly not in this way in New Zealand. And therein, in my view, lies the insuperable hurdle for the  Chief  Executive.    His  argument  must  be  that  in  its  decision  on  the  Parole Act 2002, the Supreme Court either:

(a)      made a prospective only decision of this type for the first time in New Zealand and never commented on the fact it was doing so, nor confirmed  such  a  thing  was  possible,  nor  identified  the  relevant criteria, nor explained why it was taking that step in this case; or alternatively

(b)intended the normal rule of retrospectivity (the declaratory theory) to not automatically apply.  Instead, prospectivity was left to be decided initially by a first instance trial court (either the District or High Court for this level of claim).  Again, the Supreme Court has not said in its judgment that it was intending the normal rule not to automatically apply, so it must be a matter of inference.

[11]     The first option is sufficiently unlikely as to not merit further comment.  The latter option is the Chief Executive’s main proposition, and support is taken from the history of the Supreme Court case.

[12]     Mr Marino (the Supreme Court applicant) advanced his case by way of an application for a writ of habeas corpus.   If successful this would have led to his

immediate release.  However, he failed in the High Court12  and Court of Appeal.13

7      R v Governor of Brockhill Prison, ex parte Evans (No 2) [2001] 2 AC 19 (HL); Re Spectrum

Plus Limited (In Liquidation) [2005] UKHL 41, [2005] 2 AC 680.

8      Re Manitoba Language Rights [1985] 1 SCR 721; R v Brydges [1990] 1 SCR 190.

9      Public Prosecutor v Hue An Li [2014] SGHC 171, [2015] 1 LRC 540.

10     Golaknath v State of Punjab [1967] 2 SCR 762.

11     Ha v New South Wales (1997) 189 CLR 465 at 503–504.

12     Marino v Chief Executive of the Department of Corrections [2016] NZHC 459.

13     Marino v Chief Executive of the Department of Corrections [2016] NZCA 133.

By the time he obtained leave to appeal to the Supreme Court it was clear that he would be released even under the prison’s later calculation before the Supreme Court hearing would take place.  To guard against potential mootness, Mr Marino sought leave to add an application for a declaration that his detention between 11 January and 21 May was unlawful.

[13]     Although   the  majority  judgment   in   the  Supreme  Court   agreed   with Mr Marino’s interpretation of the Parole Act 2002, it did not grant the declaration that the 127 days represented unlawful detention.   Nor, however, did the majority expressly decline the declaration.   Rather, the majority judgment is silent on the

point. By contrast, William Young J ends his separate judgment in these terms:14

[118]    I  would  determine  the  appeals  in  the  manner  proposed  by  the majority save that I would also grant a declaration that Mr Marino was entitled  to  be  released  on  12 January 2016  but  I  accept  that  this  is  the practical effect of the majority judgment.

[14]     The Chief Executive submits the decision of the majority not to declare the detention unlawful leaves open the “prospective only” proposition.   It is correctly noted that the detention must be unlawful if the normal declaratory theory of retrospective effect applies, and so he submits that there must be a reason why the declaration was withheld.  The possibility of prospective effect only is said to be that reason.

[15]     For numerous reasons I do not accept this proposition.   The starting point remains that already identified: holding a judgment of this type to be of prospective effect only would be a significant milestone in New Zealand legal history.  Further, every authority that recognises the power of a court to do this, immediately observes how it will require an exceptional set of circumstances for it to be the appropriate approach.

[16]     Against that background I again observe that one would expect that if the Supreme Court intended the retrospective/prospective effect of its judgment to be at large, and to be determined in subsequent proceedings initially in a trial court, it

would have said so.  It is of course the case that courts lower in the hierarchy will

14     Marino, above n 1.

often need to interpret and apply a decision of a higher court.   This was recently noted  by  the  Supreme  Court  in  Quake  Outcasts  v  Minister  for  Canterbury Earthquake Recovery.15    What the Chief Executive contends for is not really interpreting the Supreme Court judgment but adding a gloss to it, namely that for some reason the normal declaratory theory does not apply.

[17]     Second, the proposition assumes that a court of first instance, as opposed to only the Supreme Court, has this power to rule judgments of prospective effect only. The only real discussion of prospective over-ruling that has occurred in New Zealand is contained in the judgment of Tipping J in Lai and his Honour clearly contemplates

it is a power belonging to final courts.16   I consider it unlikely the Supreme Court, if

it intended the approach for which the Chief Executive advocates, would not at least confirm for the lower court its power to so act.

[18]     Third, and again related, there is no guidance provided by the Supreme Court as to the relevant criteria the lower court should consider.  And fourth, and really to sum up all these, it seems unlikely that the Supreme Court would invite courts lower in the hierarchy to determine whether a Supreme Court judgment should be only of prospective effect, rather than for that Court to do that itself.

[19]     I consider that if the Chief Executive wanted the Supreme Court judgment to have prospective effect only, it was incumbent on him to ask the Supreme Court to take that step and not raise it for the first time in subsequent civil proceedings.  I do not accept Mr Perkins’ proposition that the habeas corpus context that applied in the Supreme Court prevented this.  Mr Marino had been released already, so there was no urgency.  And the record shows the Chief Executive was given an opportunity to make further submissions.   That was the time, if not earlier, to seek this type of

decision.

15     Quake Outcasts v Minister for Canterbury Earthquake Recovery [2016] NZSC 166 at [3].

16     At [139] and [142] Tipping J refers to “this Court”.  The issue is not without complexity.  It would first need to be clarified if the power is limited to prospective overruling.  If so, and if the power is limited to the Supreme Court, a procedural route for getting the matter to the Supreme Court would need to be devised.

[20]     Because of the view I take it is not necessary for me to address in detail the substantive issue of whether this would be the correct case for prospective effect. The main driver for the Chief Executive’s submission appears to be the perceived unfairness of it all.  This is because the Chief Executive was obligated to follow the law as laid down in Taylor’s case, and is not at fault.

[21]     There are several responses to this.   First, the perceived unfairness is not unique.  It is the direct consequence of the declaratory theory and applies whenever decisions of precedent value are overruled.  Second, it is wrong to treat the matter as if the Chief Executive were a private individual.  It is the State which aggregates to itself the power to keep people in jail, and properly recognises it must have lawful authority to do so.   The right not to have one’s liberty removed other than with lawful authority is a key plank of our society, and one of its most important and fundamental rules.  The value attached to the writ of habeas corpus which requires immediate release reflects this.   False imprisonment is a tort of strict liability for good reason.

[22]     Finally,  as  always,  fairness  is  a matter  of perception.    Being  incorrectly locked up for 127 days may equally seem unfair to the prisoner.  In this case that has occurred without fault on the part of Mr Marino, and without him being able to prevent it.   It happened because successive courts (as has now been held) misinterpreted the Act.   That incorrect interpretation was promoted by the Chief Executive as being correct in the Taylor case.  Mr Marino could rightly contend it is unfair for the State to incorrectly detain him for more than four months longer than his sentence authorised, and not be compensated.

[23]     The United Kingdom case of R v Governor of Brockhill Prison, ex parte Evans involved the same situation as here.   That case was one of the first times prospective overruling was raised in the United Kingdom.  But the Court considered the circumstances – liberty of the subject – an inappropriate context for prospective overruling.   Lord Hope of Craighead’s observations seem an appropriate point on

which to conclude the present analysis:17

17     Above, n 6 at 37.

… it is difficult to see how the court’s order could be understood as having any application to the respondent’s case other than that it was to be applied to her retrospectively.  If ever there was a case where the declaratory theory should be applied it must surely be one where the liberty of the subject is in issue – as it plainly is where the point relates to the entitlement of the subject to be released from custody.

(emphasis added)

Conclusion

[24]     This case came forward by way of a summary judgment application by the two applicants.   It is limited to liability (not quantum) and to the claim for false imprisonment.  The Chief Executive accepts as regards liability his only argument is that  the detentions  were lawful.    I consider  that  argument  is  foreclosed  by the Supreme Court decision and the applicants are entitled to the order sought.

[25]     Costs memoranda may be filed if agreement cannot be reached.

Simon France J