Wilson v New Zealand Parole Board

[2013] NZCA 190

IN THE COURT OF APPEAL OF NEW ZEALAND

CA632/2012
[2013] NZCA 190

BETWEEN	STEWART MURRAY WILSON Appellant
AND	THE NEW ZEALAND PAROLE BOARD First Respondent
AND	THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Second Respondent

Hearing:	11 April 2013
Court:	O’Regan P, Harrison and Wild JJ
Counsel:	A J MacKenzie for Appellant No appearance for First Respondent A M Powell for Second Respondent
Judgment:	30 May 2013 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

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REASONS OF THE COURT

(Given by O’Regan P)

1. This is an appeal against a decision of Ronald Young J dealing with an application for judicial review of a decision of the New Zealand Parole Board.[1]  The decision that was subject to review was a decision of the Parole Board setting release conditions for Mr Wilson.  The Judge upheld the judicial review application in relation to one of those conditions but dismissed it in relation to all of the others.

   [1]Wilson v New Zealand Parole Board [2012] NZHC 2247.

2. Mr Wilson’s appeal was due to be heard by this court on 11 April 2013, in conjunction with his appeal against the decision of Lang J to make an extended supervision order relating to Mr Wilson.[2]  The decision under appeal in that case was Chief Executive of the Department of Corrections v Wilson.[3]As it transpired, the appellant had been recalled to prison the day before the intended hearing of the present appeal, which meant that the issues raised by the appeal had become moot.  Accordingly, the hearing did not proceed in relation to the present appeal, but did proceed in relation to appeal CA482/2012.  The judgment in that appeal has now been delivered.[4]

   [2]CA482/2012.

   [3]Chief Executive of the Department of Corrections v Wilson [2012] NZHC 1634.

   [4]Wilson v Chief Executive of the Department of Corrections [2013] NZCA 144.

3. At counsel’s request we did not make a decision as to the final resolution of the present appeal at the hearing on 11 April 2013.  We asked that counsel confer and file a joint memorandum.  They have now done so.

4. In that memorandum, counsel advise as follows:

   (a)At the scheduled hearing of the appeal Mr Wilson was subject to an interim recall to prison.  Subsequently the Parole Board made a final recall order in respect of Mr Wilson.

   (b)Mr Wilson sought review of the final recall order under s 67 of the Parole Act 2002.  That review application was declined on 8 May 2013.

   (c)Mr Wilson has a right of appeal against the decision declining his review application under s 68 of the Parole Act.  Counsel has been informed that Mr Wilson has instructed another counsel to prepare and file an appeal under that section which must be lodged by 6 June 2013.

5. If Mr Wilson pursued his High Court appeal and that appeal were successful, the High Court could refer the decision back to the Parole Board for reconsideration.  That could, ultimately, lead to the Parole Board declining the final recall order, which would mean that the release conditions to which Mr Wilson was previously subject would once more apply.  Thus, in that event, the issues which Mr Wilson wished to ventilate in the appeal would no longer be moot.

6. Counsel therefore submitted that the appropriate order from the court would be a direction that unless counsel for Mr Wilson advises the court by 6 June 2013 that an appeal has been made under s 68 of the Parole Act, the appeal will be dismissed at that date.  In the event that an appeal is filed by that date, then the appeal should be adjourned until the High Court hearing of the appeal under s 68 of the Parole Act has been resolved.

7. The effect of an order in the form suggested by counsel would be that the appeal would remain in abeyance for some months, perhaps longer, assuming Mr Wilson does pursue his High Court appeal.  We do not think that is appropriate.  The only circumstances in which the appeal would cease to be moot would be if the Parole Board made a further decision after a remission of the case to it by the High Court.  The Parole Board would have the opportunity to revisit the release conditions if that occurred and may feel it is necessary to do so to reflect the factual position at the time.  We cannot predict what the Parole Board would do in those circumstances.  But, we do know that any further decision of the Parole Board will be subject to judicial review.  In addition, Mr Wilson may ask the Parole Board to change the conditions and the outcome of such a request cannot be predicted either.

8. In these circumstances, we consider it is preferable to face up to the reality that the practical underpinning of the present appeal has been removed by Mr Wilson’s recall and dismiss the appeal.  If circumstances arise that call for further consideration of Mr Wilson’s release conditions, fresh proceedings can be commenced.

9. We therefore dismiss the appeal on the basis that it is moot.

Solicitors:
SB Law, Christchurch for Appellant
Crown Law Office, Wellington for Second Respondent