Wilson v New Zealand Parole Board [2009] Nzca 606

[2009] NZCA 606

IN THE COURT OF APPEAL OF NEW ZEALAND

CA351/2009
[2009] NZCA 606

BETWEENSTEWART MURRAY WILSON
Applicant

ANDTHE NEW ZEALAND PAROLE BOARD
Respondent

Court:Chambers, Robertson and Arnold JJ

Counsel:Applicant in person
K Bicknell for Respondent

Judgment:17 December 2009 

(on the papers)

JUDGMENT OF THE COURT

The application for bail is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

[1]       This is an application for bail pending an appeal.  It is not an application for bail pending an appeal against a conviction or sentence, but pending an appeal against a reserved decision of French J dismissing an appeal by Mr Wilson under s 68 of the Parole Act 2002: HC CHCH CRI 2009-409-000047 21 May 2009.  In these circumstances, the Crown submits there is no jurisdiction for this Court to consider the bail application.

Background

[2]       Mr Wilson is serving a sentence of 21 years’ imprisonment imposed on him on 15 March 1996 for sexual and violent offending against women and young girls that spanned a period of 25 years.

[3]       Mr Wilson’s sentence expires on 1 December 2015.  On 2 December 2008, he had served two thirds of his sentence, so that in the normal course he would have been released on that date. 

[4]       The Chief Executive of the Department of Corrections applied under s 107(2) of the Parole Act for an order that Mr Wilson not be released until 1 September 2012.  The application was heard before the Parole Board on 18 December 2008, and granted.

[5]       Mr Wilson sought internal review of the Parole Board’s decision under s 67 of the Parole Act.  That was dismissed.  Mr Wilson appealed to the High Court under s 68 of the Parole Act.  French J dismissed the appeal.  Mr Wilson appealed against French J’s decision, purportedly under s 66 of the Judicature Act 1908.

The issues on the substantive appeal

[6]       There is a preliminary question whether this Court has jurisdiction to hear an appeal against a High Court decision made under s 68 of the Parole Act.  The Crown’s position is that there is no jurisdiction because this is a criminal matter and s 66 of the Judicature Act, under which Mr Wilson brings his appeal to this Court, applies only to civil matters.  Mr Wilson contends that his appeal is civil in nature.

[7]       The jurisdictional question is an important one, which has not previously been considered by this Court.

[8]       On 18 November 2009 a telephone conference was held.  Arnold J issued a Minute on 19 November directing that both Mr Wilson’s substantive appeal and the jurisdictional question should be heard together.  The matter is set down for a hearing in this Court on 23 March 2010.

The bail application

[9]       Mr Wilson seeks bail pending the substantive hearing as he says his current incarceration is contrary to the Criminal Justice Act 1985 under which he was sentenced.  He says he has accommodation available with his church and people from it to support him.

[10]     Ms Bicknell for the Crown opposes bail for two reasons.  First, she submits that there is no statutory provision for a grant of bail pending an appeal against a decision of the kind made by French J, nor any inherent jurisdiction to do so.  Secondly, she argues that, as well as a jurisdictional barrier, in terms of s 14 of the Bail Act 2000 there is no merit in Mr Wilson’s application and it ought to be declined. 

Discussion

[11]     We are satisfied this Court has no jurisdiction to consider Mr Wilson’s application for bail.

[12]     If ultimately it is shown Mr Wilson has no right of appeal agasint French J’s decision, then of course it is axiomatic he has no right to bail.  The following discussion proceeds on an assumption that he might be able to appeal French J’s decision.

[13]     Section 70 of the Bail Act provides for bail pending an appeal against conviction or sentence when proceedings have been brought on indictment.  Section 70 clearly does not apply in the present case. 

[14]     There is no other provision in the Bail Act conferring jurisdiction on this Court to grant bail pending an appeal against a decision under s 68 of the Parole Act.  Nor does the Parole Act expressly incorporate, with necessary modifications, any relevant provisions of the Bail Act. 

[15]     The absence of a statutory jurisdiction to grant bail is reinforced by s 68(3) of the Parole Act, which provides that where an offender lodges an appeal to the High Court against the outcome of a review conducted pursuant to s 67 of the Parole Act, he or she remains subject to the order while the appeal is determined.  We consider that this precludes the possibility of bail between the date of a s 67 review and the determination of an appeal by the High Court under s 68 of that Act.  If there is no possibility of bail at that point in the appeal process, there is no reason why there would be a possibility of bail between a High Court determination under s 68 and an appeal to this Court (assuming there is a right of further appeal).  

[16]     In the absence of a statutory jurisdiction to grant bail, the only basis upon which we might grant Mr Wilson bail is by invoking the inherent jurisdiction of the High Court as discussed in Zaoui v Attorney-General [2005] 1 NZLR 577 (SC).

[17]     However we are satisfied that this case is one in which the inherent jurisdiction is displaced by the terms of the Bail Act and the Parole Act.  Neither the Bail Act nor the Parole Act provides an avenue for bail pending appeal against a s 68 decision to this Court, and s 68(3) of the Parole Act precludes bail between a s 67 review and an appeal under s 68.  The plain terms and purport of those Acts, we consider, prevent us from invoking the inherent jurisdiction to consider Mr Wilson’s application for bail: Zaoui at [36].

[18]     For completeness, we should note that had we been of the view that there was jurisdiction, we would nonetheless have refused to grant bail.

[19]     Mr Wilson was convicted of, and sentenced for, extremely serious offending.  As French J recorded in her judgment, the sentence imposed on Mr Wilson was one of the longest finite sentences imposed in the country.

[20]     In support of the application of the Chief Executive of the Department of Corrections under s 107(2) of the Parole Act, the Parole Board heard evidence about Mr Wilson from a clinical psychologist which noted that Mr Wilson displayed high risk personality traits which research has linked to “rapid violent recidivism”.

[21]     Mr Wilson’s “appeal” is due to be heard relatively promptly.  It cannot be said that, in the intervening three months in the context of this sentence, not being on bail will pose an undue burden on Mr Wilson, nor that it would be unjust not to grant him bail.

[22]     By analogy to the provisions in the Bail Act, there would have been no basis to conclude, on the balance of probabilities, that it would be in the interests of justice to grant Mr Wilson bail.

Result

[23]     The application for bail pending the hearing of Mr Wilson’s substantive appeal is dismissed for lack of jurisdiction.

Solicitors:
Crown Law Office, Wellington