Rimene v Rimutaka Prison District Prisons Board HC Wellington Ap268/01

[2001] NZHC 1318

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY AP268/01

BETWEEN WAYNE RIMENE
Appellant

AND RIMUTAKA PRISON DISTRICT PRISONS BOARD
Respondent

Hearing: 19 December 2001

Counsel: J K W Blathwayt for the Appellant
M Ball for the Respondent

Judgment: 20 December 2001

JUDGMENT OF WILD J

Solicitors:
Wollerman, Cooke & McClure, Carterton for the Appellant
Luke, Cunningham & Clere, Wellington for the Respondent

Introduction

[1] This is an appeal against a decision of the Rimutaka Prison District Prison Boards recalling the appellant from parole. The appeal is pursuant to s 107M Criminal Justice Act 1985.

[2] The grounds of the appeal as set out in the Notice are that the Board’s decision was wrong in fact and in law in ordering the appellant’s recall. Much more detailed grounds were developed in the course of argument.

Factual background

[3] The appellant was released from parole on 14 December 1999 after serving part of a sentence of 6 years 10 months for aggravated robbery, injuring with intent, threatening to kill, possession of a Class B drug, threatening to damage with intent to intimidate, wilfully attempting to pervert the course of justice, assault, possession of a Class A drug, robbery and escaping custody.

[4] On 21 August 2001 the appellant’s probation officer applied, pursuant to s 107I of the Act, for the recall of the appellant to continue serving his sentences of imprisonment. The application was made on the ground that the appellant had committed an offence (s 107I(6)(b)).

[5] In her supporting affidavit, the probation officer deposed that the Masterton Police had advised her that the appellant had been arrested and charged with serious offending: injuring with intent to injure on 19 June and manufacturing cannabis oil on 15 July. The probation officer’s affidavit attached, though did not properly exhibit, a letter dated 19 July from the Police giving further details of these two offences. In relation to the injuring, this letter referred to the evidence strengthening after a number of witnesses had been interviewed, and to the likelihood that further charges, of assault on females, would be laid.

Prisons Board hearing

[6] The application for recall was opposed by the appellant. The hearing was conducted by the Board at the Rimutaka Prison on 28 September. The material before the Board comprised:

[a] The probation officer’s affidavit and attached letter, already referred to.

[b] The Police summary of the facts of the injuring with intent to injure charge.

[c] A list of the appellant’s previous convictions.

[d] A written statement by the appellant.

[7] The appellant was present at the hearing and was heard at length by the Board, although he did not give sworn evidence. In particular he admitted involvement in the injuring incident, in particular that he had pushed another man to the ground.

[8] The Board’s decision, given at the end of the hearing on 28 September, states:

“DECISION

It is the decision of the Board that the recall order is made after hearing from the defendant who opposed the Application for Recall. The applicant believes on reasonable grounds that he has committed further offences, and because of his conduct further offending is likely. Charges have been laid - injuring with intent to injure, and manufacturing cannabis oil.

The charge of injuring with intent is an allegation of violence for which the defendant has been imprisoned on similar charges including the charges for which he is on parole.”

The law

[9] This appeal involves ss 107I, 107L and 107M Criminal Justice Act which provide:

“107I Application for recall

. . .

(3) Subject to subsection (6) of this section, where an offender subject to a determinate sentence is released under this Part of this Act, a probation officer may, at any time not later than 3 months before the sentence expiry date, apply to the Parole Board or a District Prisons Board, as the case may be, for an order that the offender be recalled to a penal institution to continue serving his or her sentence.

. . .

(6) An application may be made under this section where the applicant believes on reasonable grounds that-

(a) The offender has breached the conditions of his or her release; or

(b) The offender has committed an offence; or

(c) Because of the offender’s conduct, or a change in his or her circumstances since release, further offending is likely; or

. . .

(7) An application made under this section shall specify the grounds in subsection (6) of this section on which the applicant relies and the reasons for believing that the grounds apply.

107L Determination of application for recall

(1) Subject to subsection (10) of this section, the Parole Board or a District Prisons Board, as the case may be, shall determine the application made under section 107I of this Act-

(a) Where an interim order is made under section 107J of this Act, not earlier than 14 days, nor later than 1 month, after the date on which the offender is taken into custody pursuant to this section; or

(b) In any other case, not earlier than 14 days, nor later than 2 months, after the date on which a copy of the application is served on the offender.

(2) The Board may order the recall of an offender if it is satisfied, on the balance of probabilities, that one or more of the grounds in section 107I(6) of this Act have been established.

(3) Without limiting the matters that the Board may consider in determining the application, the Board shall consider the need to protect the public or any person or class of persons from the offender.

(4) An order for the recall of an offender may be made under this section whether or not the offender is in custody relating to a charge, and whether or not the offender is alleged to have-

(a) Breached any of the conditions of his or her release; or

(b) Committed any offence.

(5) On an application under this section, the Board may receive any evidence that it thinks fit, whether or not the evidence would otherwise be admissible in a court of law.

(6) Section 107 of this Act shall apply in respect of an application made under section 107I of this Act as if the application were related to the offender’s release on parole under section 89 of this Act as far as applicable and with any necessary modifications.

107M Appeal from order for recall

. . .

(4) On hearing an appeal pursuant to this section, the High Court may-

(a) Confirm the order:

(b) Refer the matter back to the Board with a direction to reconsider:

(c) Quash the order and, unless the offender is liable to be detained under any other provision of this Act or any other Act,-

(i) Direct the release of the offender from custody; or

(ii) Direct the release of the offender from custody and refer the offender to the appropriate Board to consider the imposition of release conditions under this Part of this Act:

(d) Make such further or other orders as the case may require.

(5) In the exercise of its powers under this section, the court may receive as evidence any statement, document, information, or matter that the Board would have been entitled to receive at first instance.

(6) The court shall not be bound to allow the appeal on the ground merely of the improper admission or rejection of evidence unless in the opinion of the court a substantial wrong or miscarriage of justice has thereby been occasioned.

(7) Without limiting the matters that the court may consider in determining the appeal, the court shall consider the need to protect the public or any person or class of persons from the offender.

(8) In referring a matter back to the Board under subsection (4)(b) of this section, the court shall-

(a) Advise the Board of its reasons for so doing; and

(b) Give the Board such direction as it thinks just as to any rehearing or to the reconsideration or determination of the whole or any part of the matter.”

Argument on appeal

[10] I think Mr Blathwayt’s very full argument for the appellant can be summarised as follows:

[a] The Board’s task was to determine whether one or more of the available grounds under s 107I(6) had been proved on the balance of probabilities, and whether there was a need to protect the public or any person or class of persons from the appellant.

[b] The Board needed to be satisfied to the same standard of proof i.e. on the balance of probabilities, both as to the existence of one of the s 107I(6) grounds, and as to the need to protect the public.

[c] The application was unsatisfactory. The factual evidence on which it relied was in the Police letter dated 19 July attached (but not properly exhibited) to the supporting affidavit. This evidence is double if not triple hearsay. In breach of his rights under s 25(f) New Zealand Bill of Rights Act 1990, the appellant had no right to cross-examine the applicant probation officer. The officer’s evidence was not reliable and its admission was unprincipled. See In the matter of L Children [2001] NZFLR 681, 697.

[d] The quality of evidence was unsatisfactory. The Board’s decision states that the applicant officer believed on reasonable grounds that the appellant “has committed further offences”. That is not correct because the applicant officer deposed only that the Police had advised her that the appellant had been arrested and charged with serious offences. Before the Board the appellant disputed the facts of the alleged offending. There is no discussion in the Board’s decision about the quality of evidence required. It is accepted that the appellant was committed for trial on the injuring charge. There are passages in the transcript of the hearing before the Board suggesting that it considered that the mere fact that a charge had been laid was sufficient:

“We can’t know whether it is true or not. But we don’t have to have you convicted in order for you to be recalled, you will know that.”

More than a simple assertion that the appellant had committed serious violent offences was required.

[e] The Board may have been under a misapprehension as to the bail situation:

“The allegation is that you and another person beat up this man. You were charged and lost your bail rights on it, so that is why you are subject to a recall.”

In fact the appellant was on bail on the injuring charge until he was arrested on the later cannabis charge, on which he was again granted bail. The Police appealed successfully to the High Court and the appellant was arrested and remanded in custody. The hearing before the Board took place after that.

[f] The fact that the appellant was in custody at the time of the Board hearing with trial on the cannabis charge not scheduled until June 2002 meant that the recall hearing should have been postponed until after guilt was determined. The appellant did not represent a danger to the public while in remand prison. The recall hearing was premature.

[g] The Board incorrectly placed an onus upon the appellant:

“What I want to know is what legal grounds would we have not to recall you. On the face of the fact that the serious charges laid. You having not even been on bail for them, with your record. What law can I point to, to say that I can’t recall you.”

This flies in the face of ss 25(c) and 27 Bill of Rights Act - the presumption of innocence and right to a fair hearing by the Board.

Decision

[11] I do not accept Mr Blathwayt’s submission that the Board must be satisfied on the balance of probabilities both that a ground for recall has been established and that recall is necessary for the protection of the public. A ground must certainly be established on the balance of probabilities: ss 107I(6) and 107L(2) But the only requirement on the Board with respect to the need to protect the public is that it shall consider it, but that such consideration will not otherwise restrict its consideration: s 107L(3). The balance of probabilities standard of proof is specific to the grounds set out in s 107I(6).

[12] I am also unable to accept that the (hearsay) nature and quality of the evidence before the Board was unsatisfactory and insufficient to support an order for recall. In para [6] I have outlined the material which was before the Board. It certainly came in a hearsay form, but that is expressly permissible: s 107L(5). Ms Ball referred to the commentary in Hall’s Sentencing at para S107L.1:

“. . . A wide range of material is usually made available to the Board: eg information relating to the original offending, the circumstances surrounding the release on parole, information concerning the offending which has given rise to the application. The Board also receives and considers evidence and submissions from the offender or counsel and materal from a probation officer.”

I accept Ms Ball’s submission that the clear intention of the Act is to enable the Board to receive whatever information it wishes, and to separate out the Board’s function from that of a Court of law. I think there is force in her argument that a comparison with comparable provisions in family law legislation is of limited assistance, and the comments of the Family Court in L Children not applicable to the Board. The Family Court is a court of law; the Board is not.

[13] I also accept Ms Ball’s submission that a full evidential hearing to establish whether one of the grounds in s 107I(6) has been made out is not a prerequisite to the Board making a recall order. The clear intention of the parole provisions in the Criminal Justice Act is to enable prisoners to be released on parole, before they have served their full sentence, subject to good behaviour. The fact that it is not necessary for an offence to be committed (s 107L(4)) before a recall order can be made, and that conduct indicating a likelihood of further offending is a ground for recall (s 107I(6)(c)) indicates that recall hearings before the Board are of a special nature. Ms Ball submitted that any comparison with criminal proceedings and/or application of the Bill of Rights Act to recall hearings is limited by the starting point that the person being considered for recall has already been imprisoned for a serious offence(s). Mr Blathwayt argued that the appellant’s rights under s 25(f) had been breached, but that is one of the rights which the Bill of Rights gives a person charged with a criminal offence, in relation to the determination of the charge. It does not apply here, where the charge has been determined, and the issue is whether the offender should be recalled back to prison to complete the sentence imposed upon conviction. I do not overlook Mr Blathwayt’s invocation of s 27 Bill of Rights Act. I do not consider the principles of natural justice were breached here. The appellant had, and took, the opportunity both to place a written statement before the Board and to appear before it and be heard in opposition to the application for his recall. This disposes of Mr Blathwayt’s submission that the immunity of the material from cross-examination is a significant factor.

[14] It is clear from the transcript of the hearing before the Board, as well as its decision, that the primary basis for the application was the seriousness of the appellant’s alleged injuring with intent to injure, combined with the violent and serious nature of the charges for which the appellant was on parole. In short, he had committed serious violent offences in the past, and there was evidence indicating that he had committed another serious violent offence while on parole.

[15] I turn now to Mr Blathwayt’s submission that the recall hearing was premature. This submission is met by the fact that the appellant could have applied afresh for, and been granted, bail prior to the scheduled trial. The Board, incidentally, was not aware of the scheduled trial date. If still on parole, the appellant would be entitled to his liberty if granted bail. Ms Ball is surely correct in submitting that the Board, on any recall application, must at least consider the safety of the public, and if concerned for the public safety make a recall order. The Board could not safely rely on the continued refusal of bail. The issues of bail and recall are separate, although of course they have the common concern of the public safety. Thus, I do not accept that the recall hearing was premature.

[16] Finally, I am not able to accept Mr Blathwayt’s submission that the Board somehow reversed the onus on the appellant. The transcript of the Board’s hearing and its decision, in combination, make it clear that the Board’s concerns were the safety of the public and the applicant officer’s belief that the appellant had committed an offence involving serious violence. Section 107I(6) focuses on the applicant officer’s belief - whether there are reasonable grounds for it.

Result

[17] The appeal is dismissed. The order of the Board is confirmed.