McVicar v New Zealand Parole Board
[2015] NZHC 2153
•4 September 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2015-485-692 [2015] NZHC 2153
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of a decision made pursuant to the Parole
Act 2002BETWEEN
GARTH MCVICAR, PETER JENKINS AND GIL ELIOT
Plaintiffs
AND
THE NEW ZEALAND PAROLE BOARD First Defendant
RODNEY MICHAEL PETRICEVIC Second Defendant
Hearing: 4 September 2015 Counsel:
D A Garrett for Plaintiffs
F M Cooke QC and V Owen for First Defendant
No appearance for Second DefendantJudgment:
4 September 2015
JUDGMENT OF ELLIS J
I direct that the delivery time of this judgment is
5.20 pm on the 4th day of September 2015
Solicitors: Rainey Law, Auckland, for Plaintiffs
F M Cooke QC and V Owen, Wellington for First Defendant
P J Davison QC, Auckland, for Second Defendant
MCVICAR v THE NEW ZEALAND PAROLE BOARD [2015] NZHC 2153 [4 September 2015]
[1] Rodney Petricevic was formerly the managing director of Bridgecorp Ltd and Bridgecorp Investments Ltd (BIL). Since April 2012 he has been serving a sentence of six years and 10 months imprisonment for white collar offending associated with that role. On 24 August 2015 the Parole Board (the Board) granted him parole and he is due to be released next Monday.
[2] The trustees of the Sensible Sentencing Trust (the Trust) have filed judicial review proceedings challenging the Board’s decision to grant parole to Mr Petricevic. Today, the Trust urgently sought interim orders to stop his release.
Background
[3] As is tolerably well known, Bridgecorp was placed into receivership on
2 July 2007. At the date of its receivership it had approximately $459 million of secured debenture stock outstanding to approximately 14,500 debenture holders or investors. As I understand it, any recovery by those investors has been less than
10 cents in the dollar.
[4] Similarly, BIL was placed into liquidation on 7 July 2007. As at that date
BIL had just under $29 million of capital notes outstanding to the public and
$30 million redeemable preference shares in Bridgecorp outstanding. At the time of sentencing it was regarded as unlikely that the investors in the capital notes would recover anything.
[5] Prosecutions were laid against Mr Petricevic as a result of his involvement in the events leading to the insolvency of the two companies and investors’ losses. A trial in the Auckland High Court led to his conviction on six counts under the Crimes Act of making false statements, two counts under the Companies Act of making false statements in directors' certificates to Covenant Trustee Company Limited and
10 counts under the Securities Act of distributing offer documents containing false statements. On 26 April 2012 he was sentenced to six and a half years’ imprisonment for that offending. Mr Petricevic was later sentenced to a further, cumulative, four months’ imprisonment on two charges of making false statements,
one of using a document for pecuniary advantage and one of theft by a person in a special relationship.
[6] Mr Petricevic’s sentence ends on 4 February 2019. He became eligible for parole on 17 July 2014. Although, due to the urgency with which this application was brought on for hearing, the Board did not have the opportunity to file evidence. I was advised by Mr Cooke QC that the relevant chronology is as follows:
(a) In May 2014 the Board received from the Department of Corrections a Full Parole Assessment Report in advance of its June meeting. Twelve submissions were received from Mr Petricevic his counsel and others;
(b) On 18 June 2014 the Board met to consider Mr Petricevic’s application
for parole;
(c) On 31 July the Board issued a reserved decision declining parole;
(d) On 28 August 2014 an application under s 67 of the Parole Act 2002 for
review of the Board’s decision was received from Mr Petricevic;
(e) On 4 September 2014 the Board issued its decision on the review, confirming its original decision;
(f) On 4 December 2014 a further Parole Assessment Report was made to
the Board in advance of the Board’s February 2015 meeting;
(g) On 18 December 2014 the Board was provided with a Psychological
Report by the Department of Corrections;
(h)On 16 January 2015 the Board received a Release Plan and a Safety Plan prepared by Mr Petricevic, and submissions from seven other people;
(i) On 9 February 2015 the Board met and parole was declined;
(j)On 20 June 2015 the Board received a further Parole Assessment Report about Mr Petricevic from the Department in advance of its August meeting;
(k)On 30 June a Psychological Report from a private registered clinical psychologist engaged by Mr Petricevic was received by the Board;
(l)On 7 July 2015 the Board received a letter from Mr Petricevic enclosing his previous Safety and Release plan, copies of the previous seven submissions;
(m) Mr Petricevic appeared before the Board, without counsel, on 14 August
2015;
(n)On 24 August 2015 the Board’s decision granting Mr Petricevic parole and directing his release on 7 September was issued.
The Board’s 24 August decision
[7] After noting the nature of Mr Petricevic’s offending and the guiding statutory principles governing all parole decisions the Board said:
… the issues for us are to determine the nature of the risk that Mr Petricevic poses, what he has done to address that risk and whether his assessed risk can be managed in the community.
[8] Then, the Board said:
The Board which saw Mr Petricevic in June 2014, immediately after his parole eligibility date, was concerned that while he expressed remorse and appeared to have developed some degree of insight into his culpability, it was possible that he would not only provide advice, but would also become involved in the management of other people’s assets and put those assets at risk.
They noted that, through no fault of his own, Mr Petricevic had not been the subject of any professional assessment or engaged in any rehabilitatative programmes in custody. In the circumstances they sought a psychological assessment of his risk and guidance as to further interventions to address that.
A report by a departmental psychologist, was available to the February 2015
Board.
Neither the contents of that report, nor Mr Petricevic’s progress, allayed the
Board’s concerns.
[9] The Board recorded aspects of the report that had been received in
February 2015, including the opinions expressed in it that, while Mr Petricevic:
(a) appeared to accept responsibility for the offences and for the losses suffered by Bridgecorp investors, he did not accept that he had acted in a manner that was deliberately dishonest; and
(b)displayed partial remorse, he maintained a “degree of entitlement to act in the way that he did given what he said he knew at the time of the offending”.
[10] The Board explained that, it had declined parole on that earlier occasion notwithstanding that, based on static risk factors only, Mr Petricevic fell within the group of people who pose a very low risk of reoffending and did posed no risk of general offending. But in declining him parole at that time the Board recommended that Mr Petricevic “engage in a brief programme of one-to-one psychological treatment” in order “to see his offending in its proper perspective”.
[11] As the Board’s 24 August decision makes clear, however, because Mr Petricevic had been assessed as low risk, the Department refused to fund one-on- one psychological treatment either while he remained in prison or if released into the community. The Board records that Mr Petricevic had nonetheless engaged in counselling with an independent psychologist, whose services had been paid for by himself. The Board described the report provided to it by this psychologist as “instructive and helpful”. It said that at the time that report was written Mr Petricevic had participated in three counselling sessions but had since had another and there was prepared to continue these in the community.
[12] The Board noted that the psychologist opined that counselling was assisting Mr Petricevic to “better understand himself, his offending and the extent of his offending” and said that Mr Petricevic’s interactions with the Board at the parole hearing seemed to confirm that view. In that respect the Board said:
He accepted, unequivocally, the High Court Judge’s findings. He acknowledged that the statements subject of the various charges were false and what he did was wrong, and he seemed to express genuine remorse for his actions. He appeared chastened.
…
Mr Petricevic says he has no intention of offering advice or being involved in any business enterprise following release. He will be retired.
While reiterating that he will continue to be subject to the ban under s 60E of the Securities Act 1998 until 2017, Mr Petricevic accepts the proposed special conditions of release precluding his participation in business activities and contact with co-offenders.
[13] The Board concluded:
Given the apparent change in his understanding of his offending and his attitude generally, and the strength of his release plan which includes the ongoing access to psychological counselling, we are satisfied that Mr Petricevic’s low risk of reoffending can be managed in the community during the remainder of his sentence if he is released now, subject to the conditions which we will impose.
[14] Those special conditions included:
(3) Not to engage in any employment or have any role in the affairs of any business, trust, company or voluntary organisation without the prior written approval of your Probation Officer
(4) Not to handle financial transactions for, or the money of, any other person without the prior written approval of your Probation Officer
(5) Not to give financial advice to any other person
[15] It is to be noted that the special condition prohibiting Mr Petricevic’s involvement in business activities was specifically amended and expanded by the Board.
The application for judicial review
[16] The statement of claim filed on behalf of the Trust rehearses the background and aspects of the Board’s decision to which I have just referred. The pleaded grounds of review are:
(a) error of law; and
(b) failure to consider relevant considerations; and
(c) unreasonableness.
[17] The alleged error of laws are said to be founded in ss 7 and 28 of the Parole
Act 2002 (the Act). It takes issue with the Board’s conclusions that:
(a) On the basis of the psychologist’s report, Mr Petricevic was no longer
a danger to the community; and
(b)That the danger posed to the community by Mr Petricevic had significantly changed in the 6 months since the earlier psychologists’ report which had noted his lack or remorse and sense of entitlement.
[18] The relevant consideration that is said to have been ignored by the Board is
the absence of a “truly independent psychologist’s report”.
[19] And the release decision is said to be unreasonable because it is “inherently improbable” that Mr Petricevic has “suddenly” obtained insight into his offending and it was unreasonable for the Board to rely solely on a psychologist’s report that had been paid for by Mr Petricevic.
[20] The substantive relief sought is:
(a) a declaration that the Board’s decision is invalid; (b) an order quashing the decision;
(c) an order that the Board next consider Mr Petricevic for parole in
12 months time in accordance with s 21(2) of the Act; and
(d)An order that before the Board considers Mr Petricevic for parole again it obtains a report from a “truly independent psychologist”.
The application for interim orders
[21] The interim relief sought is an order:
Declaring that, pending the determination of the application by the applicant for judicial review, the second respondent must remain in prison.
[22] The grounds on which the order is sought are said to be:
(a) Unless the second respondent’s attitude to and insight into his offending has truly changed, he remains the danger to the community he was when the first respondent declined to grant him parole in February 2015.
(b) If the second respondent is released from prison before this application for review is heard, the proceeding required to have him recalled to prison would be much more complex, difficult, and expensive.
(c) Given that the second respondent’s sentence does not end until
4 February 2019, and given that he has no automatic entitlement to parole under the Parole Act 2002, the second respondent will face no
undue hardship if he remains confined pending determination of this
application.
(d) If however the second respondent is released from prison prior to this application being determined, judicial review of the decision to grant him parole would become much more difficult for the applicant, and perhaps not be possible at all given the financial and other limitations that will be placed on the applicant.
(e) Appearing by the affidavit of Garth McVicar filed herein.
[23] And in his affidavit Mr McVicar deposes that:
(a) the Sensible Sentencing Trust was established in 2001 and became a charitable trust in 2011;
(b)amongst its purposes are advocating for and representing victims of crime at Parole Board hearings;
(c) a number of the Trust’s members are elderly people who have been the victims of white collar crime, many of whom have entrusted all or part of their life savings to finance companies like Bridgecorp;
(d) he is not presently certain whether Bridgecorp investors are amongst
the Trust’s membership;
(e) media reports relating to Mr Petricevic’s previous bids for parole recorded that he evidenced a lack of remorse and a sense of entitlement;
(f) Mr Petricevic had applied for legal aid at the time of his trial but was declined. His application for judicial review of that decision was also declined. Mr McVicar opines: “Clearly the Court did not believe his claims of poverty.”
(g)he (Mr McVicar) had obtained a copy of the most recent decision by the Board and notes that it appears from it that Mr Petricevic paid for a private psychologist who provided a more positive report about Mr Petricevic’s insight into his offending; and
(h) Mr McVicar believes that:
(i)Mr Petricevic will pose a safety risk to the community “especially elderly persons who are sometimes easily misled by smooth talking fraudsters like Petricevic”; and
(ii)there is a very real risk “despite what he has told the Parole Board that Petricevic will again solicit funds from trusting members of the public, perhaps through an intermediary”.
[24] Mr McVicar concludes by stating that it is his belief that the decision by the
Parole Board is “unjustifiable and morally if not legally wrong”.
The Board’s opposition
[25] The Board’s opposition to the application for interim orders can be summarised as follows:
(a) the Trust who the applicants represent is a political lobby group that has no legitimate standing to challenge decisions of the Parole Board in an individual case such as this;
(b)there is no jurisdiction for the Court to make a declaration that “the second respondent must remain in prison” which in both form and substance is an order of imprisonment. The only conceivable interim order that could be made under s 8 of the Judicature Amendment Act
1972 (the JAA) would need to be directed to the Department of Corrections, which has not been named as a party to these proceedings;
(c) orders under s 8 of the Judicature Amendment Act 1972 can only be made if the applicants establish that the orders are necessary to preserve the position of the applicants. The applicants have no position to preserve;
(d)the merits of the substantive review proceedings are relevant in determining whether interim relief under s 8 should be ordered. In this case no proper basis to challenge the legality of the Board’s decision is advanced; the Trust simply disagrees with the merits of that decision; and
(e) if there was any substance to this judicial review challenge, there would be no prejudice to the Trust in it being heard and determined in the normal way.
Mr Petricevic’s position
[26] Primarily because of logistical difficulties associated with his present incarceration, Mr Petricevic was only served with these proceedings at 1 pm yesterday. He was, however, able to contact Mr Davison QC who filed a brief memorandum outlining Mr Petricevic’s position. In essence, however, he supports the Board’s stance.
[27] I note, however, that given that the effect of the order sought would be to deprive Mr Petricevic of his liberty, acute natural justice difficulties might arise in the event that the Court were minded to grant the present application.
The Sensible Sentencing Trust and the parole process
[28] Before turning to consider the merits of the present application it is necessary to say something about the Sensible Sentencing Trust itself and the role it does or does not play in the parole system in this country. This analysis is impeded somewhat, however, because of the absence of any real evidence about the Trust and how it operates.
[29] The Sensible Sentencing Trust is a charitable trust. Its general views on crime and punishment and law and order are well known, but were exemplified perhaps in Mr Garrett’s submission to me today that the Trust views the policy and purpose of the Parole Act 2002 (the PA) as being: “Let them out as soon as possible”.
[30] While Mr Garrett submitted that the Trust’s charitable status must indicate that those with responsibility for conferring that status did not view it as a “political” organisation, the recent Supreme Court decision In Re Greenpeace suggests that that analysis may be slightly too simplistic.1 Be that as it may, Mr Garrett did not and could not deny that it is an organisation with strong and publicly expressed views. It acts as, and is perceived by many as being, the mouthpiece for victims of crime.
Importantly, however, it could not be suggested that its aims and beliefs are shared by all such victims.
[31] As far as the Trust’s involvement in the parole process is concerned, Mr Cooke explained that the PA makes careful and specific provision for the participation by victims of crime in that process.
[32] First, s 43(2) relevantly provides that when an offender is to be considered by the Board for parole, the Board must take all reasonable steps to give notice that a
1 In Re Greenpeace [2014] NZSC 105, [2015] 1 NZLR 169, (2014) 26 NZTC 21-088.
hearing is pending to (inter alia) “every victim of the offender”. The section then
provides that:
(2A) When, under subsection (2)(b), the Board gives notice to a victim that a hearing is pending, the Board must also prepare and send to the victim an explanation of the hearing process and how the victim may participate in that process.
…
(5) Any person notified under subsection (2) may write to the Board, by a given date, making submissions on, or giving information relevant to,—
(a) the substantive matter to be decided; and
(b) whether the hearing should be an unattended hearing or an attended hearing.2
…
[33] Importantly, however, “victim” for the purposes of this section is defined in s 4 of the PA by cross-referring to s 32B of the Victims Rights Act 2002 (the VRA). Section 32B relates only to victims of “specified offences” which, in turn, are defined as:
(a) an offence of a sexual nature specified in—
(i) Part 7 of the Crimes Act 1961, excluding the offences in sections 143 and 144; or
(ii) sections 216H to 216J of the Crimes Act 1961; or
(b) an offence of serious assault that does not come within paragraph
(a); or
(c) an offence that has resulted in serious injury to a person, in the death of a person, or in a person becoming incapable; or
(d) an offence of another kind, and that has led to the victim having ongoing fears, on reasonable grounds,—
(i) for his or her physical safety or security; or
(ii) for the physical safety or security of 1 or more members of his or her immediate family.
[34] Notably, however, victims of “white collar” crime are not included within this definition.
2 As a general rule neither the prisoner nor any other persons other than the Board and its staff are able to attend an unattended hearing: s 48.
[35] The PA provides that where a victim (as so defined) wishes to make an oral submission at an attended hearing, he or she may be accompanied by one or more support persons who may, with the leave of the Board and with the permission of the victim, speak on the victim’s behalf.3 The Court of Appeal has observed the importance of providing the required information to victims because it ensures the victim has an adequate opportunity to prepare for the offender’s release.4
[36] Section 50A of the PA confers much more limited rights on those who are not victims falling within the s 32B definition but are victims within the wider definition contained in s 4 of the VRA. That definition is, at least arguably, wide enough to cover those who have suffered monetary loss as a result of an offence committed by another person, such as the Bridgecorp investors. Section 50A provides that victims of this broader kind may make written submissions on, or give information relevant to, the matter to be decided at the parole hearing and may make oral submissions at an attended hearing, but only with the leave of the Board. If leave is granted then that person, too, has the right to be accompanied by a support person who may, with the leave of the Board and the permission of the victim, may speak on the victim’s behalf.
[37] Accordingly a representative of the Trust can only be involved at all in the parole process is if:
(a) a victim (as variously defined) seeks to appear at a hearing (and in the case of victims of white collar crime is given leave to do so); and
(b)the victim gives the representative permission to speak on his or her behalf; and
(c) the Board grants leave.
[38] The Trust therefore has no status, role or voice in relation to the parole process that is independent of the particular victims of the offences committed by the
particular offender who is up for parole. The Trust has no right to participate or to
3 Parole Act 2002, s 49(4).
4 R v Gurnick (2002) 19 CRNZ 627 (CA) at [19].
speak in its own right or, generally, on behalf of its members. Its participation is entirely contingent on an invitation from an individual victim who has been accorded rights under the Act and on the grant of leave by the Board. And even then, it speaks not on its own or its members’ behalf, but on behalf (and on the instruction) of the individual victim concerned.
[39] Importantly, in the instant case, Mr Cooke advised that no Bridgecorp investor sought to have any involvement in Mr Petricevic’s parole under s 50A. There is, accordingly, no possible basis upon which the Trust could have played a part in that process. That was effectively confirmed by Mr Garrett who advised that while Mr McVicar has ascertained that two or three investors are “members” or in some way associated with the Trust, they had had no involvement in Mr Petricevic’s parole. Nor had the Trust has not been instructed to act or speak on their behalf in relation to the present application.
[40] It is against this background that I turn to consider the present application.
Standing
[41] It is not in dispute that in New Zealand, a liberal approach to standing is to be adopted. In Environmental Defence Society v South Pacific Aluminium (No 3)5 our Court of Appeal followed the House of Lords in Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Limited6 where Lord Diplock held:
It would, in my view, be a grave lacuna in our system of public law if a pressure group; like the federation, or even a single public spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.
[42] Mr Cooke submitted, however, that it is equally clear that questions of standing is not automatic and must be determined in all the circumstances of the
5 Environmental Defence Society v South Pacific Aluminium (No 3) [1981] NZLR 216 (CA).
6 Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses
Limited [1981] 2 All ER 93 at 107.
case, including the nature of the challenge itself. In Budget Rent A Car v Auckland
Regional Authority Cooke J held:7
As to standing in what are sometimes called public law issues (although I respectfully ally myself with Lord Wilberforce's cautionary observations in Davy v Spelthorne Borough Council [1984] AC 262, 276) the leading English authority remains a case not even mentioned in the Civil Service speeches which confirms that they were not directed to standing. That authority is of course R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617, the approach in which has been adopted by this Court in a series of cases and, subject to the Judicature Amendment Act 1972, may be regarded as an established part of New Zealand law. Under this approach, to determine the sufficiency of an applicant's interest it is essential, indeed elementary, to consider the matter to which his application relates. The emphasis is on the totality of the facts. Any tendency to consider the issue of standing in isolation from the nature of the complaint is resisted. In the present case the applicant has a real and obvious interest in the effect of the existing licenses: an interest much more direct than that of one taxpayer in the tax affairs of another. In my view the law of New Zealand would be unacceptably weak if it failed to recognise the sufficiency of such a manifest interest.
(my emphasis)
[43] Similarly, in Oggi Advertising Limited v Auckland City Council8 Harrison J held that for standing there were “no fixed rules” and that “the circumstances of the case are determinative” and, more recently, in Ye v Minister of Immigration.9
Glazebrook J held that:
[322] … In New Zealand, a generous approach to standing prevails, which is said to be based on the constitutional principle that the courts must ensure that public bodies comply with the law (see Joseph, para [26.6.3] and Environmental Defence Society Inc v South Pacific Aluminium Ltd (No 3) [1981] 1 NZLR 216 (CA) at p 220). As a result of this generous approach, the question of standing is combined with the substantive issues as part of the judicial review discretion and standing decisions are made on the totality of the facts (see Joseph, para [26.6.3(3)(a)] and Budget Rent A Car Ltd v Auckland Regional Authority [1985] 2 NZLR 414 (CA) at p 419 per Cooke J).
[44] In Whanganui District Council v New Zealand Parole Board the Court was faced with a challenge to a residential condition placed by the Board on Mr Murray
Wilson’s release, namely that he reside in Whanganui and not leave without
7 Budget Rent A Car v Auckland Regional Authority [1985] 2 NZLR 414 at 419.
8 Oggi Advertising Limited v Auckland City Council [2005] NZLR 451 (HC) at [12].
9 Ye v Minister of Immigration [2009] NZLR (CA).
permission.10 Ronald Young J indicated that his preferred view was that the Council did have standing to bring such a challenge. He concluded:11
This is a difficult question for resolution. The Whanganui District Council on behalf of the citizens of the district, do have an interest in the release of prisoners in their district. They cannot be dismissed as busy body litigants, those with no interest in the outcome. Ordinarily, this interest would be sufficient to establish standing. Here, the Board’s position is that Parliament has carefully prescribed who may participate in parole decisions. Parliament has not allowed general public interest bodies to participate.
[45] But Mr Cooke submitted that the same cannot be said of the present applicants. He said that, unlike the Whanganui Council, they are not the duly elected representatives of the community into which the prisoner is to be released. Rather, he said that the Trust is a political pressure group representing those in the community that have particular views on issues of crime and punishment. He emphasised that the Trust has no legitimate representative status for anybody affected by the parole process.
[46] As Mr Cooke submitted, the authorities indicate that questions of standing are intimately related to the type of challenge in question. If a challenge raises some very clear questions of legality of potentially wide public relevance, then the Courts will be little concerned with the identity of the person bringing the issue to Court. As Lord Diplock said, that is reflection of the operation of the rule of law. The high watermark of the operation of that principle was, perhaps, the Court of Appeal’s
decision in the Finnigan v New Zealand Rugby Football Union Inc.12
[47] I also agree that the present is not a challenge of that character. Notwithstanding Mr Garrett’s eloquent submissions to the contrary, the Trust’s application for judicial review does not raise any question of law of that broad or publicly relevant kind. Rather, it invites the High Court to reconsider the Parole Board’s decision on the evidential merits and, in particular, its view of the weight that could be placed on the psychological report obtained by Mr Petricevic and the
correctness of the necessarily predictive assessment of risk that the Board then made.
10 Whanganui District Council v New Zealand Parole Board [2012] NZHC 2248.
11 At [79].
12 Finnigan v New Zealand Rugby Football Union Inc [1985] 2 NZLR 159 (HC and CA).
[48] I am fortified in my view that this is one of those rare cases where an applicant for review does not have standing by my brief analysis of the statutory position regarding the participation by victims in the parole process outlined above. There is real force in Mr Cooke’s submission that to permit judicial review of the process by the Trust (or by a member of the public) would cut across a sophisticated and carefully thought out statutory scheme.
[49] Even if the Trust had had some involvement in the statutory process (which it did not) it could only have been on behalf of particular Bridgecorp investors. In the absence of some official status or mandate it is difficult to see why the Trust has any more interest (in the relevant, narrow, sense) in the grant of parole to Mr Petricevic than any other member of the public.
[50] Conversely, there is, I think, a distinction to be drawn between the present case and those cases involving applications for review by "public interest" bodies, where standing exists, notwithstanding the absence of any direct or personal connection with the matter at issue. That is not because the Trust does not have the support of or, in a broad sense represent, one sector of the general public. Rather, it is because parole decisions about specific prisoners do not engage the public interest in a relevant and meaningful sense. That point is neatly demonstrated by the point just made above, namely that, in each case, there will be individuals with a much more specific and direct interest in a particular parole decision who are able to participate in the process (and potentially to bring review proceedings) if they wish to. There is no gap to be filled in the public interest here.
[51] That said, however, it is important to note that the focus on the circumstances of the case and the totality of facts means that it is possible, at least in theory, for a body such as the Sensible Sentencing Trust to have standing one case, but not another. A finding against standing here does not necessarily mean that judicial review proceedings could never properly be brought by the Trust if there was, for example, some wider legal issue concerning parole that was of general or public importance. But this is not that case. In my view, the applicants lack standing here.
[52] In case I am wrong in this conclusion, however, I go on to consider the matter in the context of the orthodox criteria governing applications for interim orders.
The Requirements for Interim Relief
[53] The requirements for interim relief are set out in s 8 of the Judicature
Amendment Act 1972 (the JAA). I do not propose to set the section out here.
[54] In Minister of Fisheries v Anton Trawling Ltd the Supreme Court held:13
Before a Court can make an interim order under s 8 of the Judicature Amendment Act 1972 it must be satisfied that the order sought is reasonably necessary to preserve the position of the applicant. If that condition is satisfied the Court has a wide discretion to consider all the circumstances of the case, including the apparent strengths or weaknesses of the applicant’s claim for review, and all the repercussions, public and private, of granting interim relief.
[55] Mr Cooke’s first submission under this head was that, in the circumstances of the present case, the Trust has no relevant “position to preserve” at all and thus does not get over the initial s 8 threshold. That is because, for the reasons already given, the trustees are no more personally affected by the grant of parole to Mr Petricevic than any other members of the New Zealand public.
[56] Mr Garrett’s submission, however, was that the existence of a status quo (namely that, today, Mr Petricevic is in prison) constitutes the relevant “position”. But that submission fails to takes account of the fact that it is not a position that belongs in any unique or relevant way to the Trust. Nor does it confront the fact that the “real” status quo is that the Board has determined that Mr Petricevic is not to be imprisoned beyond Monday next week; the “position” accordingly is that he presently has a clear right to be released on that day.
[57] I agree with Mr Cooke that it is important to afford that right (and its associated rights under the New Zealand Bill of Rights Act 1990) weight at this interim stage. And because of the fundamental nature of the rights engaged, there are, I think, real issues about whether the Court could, by a civil side-wind, impose
what would essentially be a further period of imprisonment through the exercise of
13 Minister of Fisheries v Anton Trawling Ltd [2007] NZSC 101, (2007) 18 PRNZ 754 at [3].
its supervisory jurisdiction. But that this is exactly what is sought by the Trust is made clear by the terms of the order sought in the interim orders application, namely a declaration “that, pending the determination of the application by the applicant for judicial review, the second respondent must remain in prison”.14
[58] And even if there were a relevant s 8 “position”, there is nothing that has been put forward that would demonstrate why such an order is “necessary” here if interim relief were denied. The judicial review claim could be argued and, if successful, an order could be made quashing the Board’s decision. The effect of that would be that Mr Petricevic would be returned to prison. There is nothing which suggests that anything could happen in the meantime warrants the extreme order of imprisonment.
[59] And even if the threshold for relief under s 8 was met, the difficulties with the Trust’s substantive case would point against an order being made. As I have said, I am unable to see that the application for review is anything other than a challenge to the merits of the Board’s decision. And even if that were permissible (which it is not) the reality is that neither the Trust nor the Court has access to any of the material that was before the Board, and neither the Trust nor the Court are well placed to second-guess the Board as to the likelihood of Mr Petricevic breaching his release conditions.
[60] The Board’s decision makes it quite clear that the Board has focused on the statutory requirements, including in particular, the paramountcy of the safety of the community, in a way that appears perfectly legitimate. The contention that the Parole Board “should have” commissioned a further report from another psychologist is necessarily made largely in ignorance of the contents of the two reports that were before the Board. In any event this alleged evidentiary omission
cannot constitute a relevant consideration or constitute an error of law.
14 There is also the point that such an order would need to be directed to the Department of Corrections, which has not a party. However I accept Mr Garrett’s point that that pleading could, if necessary, have been amended.
Conclusion
[61] In summary, I consider that:
(a) in the particular facts and circumstances of this case the trustees of the Sensible Sentencing Trust have no standing to seek judicial review of (or interim orders in relation to) the Parole Board’s decision to release Mr Petricevic;
(b)even if I am wrong in that (but for similar reasons), the Trust has no relevant position to preserve by way of interim relief. Nor could the order sought be said to be “necessary” in the required sense; and
(c) the nature of the claim for judicial review which, in reality, is an attack on the merits of the factual risk assessment performed by the Board’s decision would, in any event, militate against relief being granted.
[62] The application for interim orders is dismissed accordingly.
[63] The issue of costs was addressed at the hearing today. I will issue a brief addendum to this judgment in relation to that matter as soon as time permits.
“Rebecca Ellis J”
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