Wilson v New Zealand Parole Board HC Christchurch CIV 2010-409-2039

[2010] NZHC 1858

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV 2010-409-002039

BETWEEN  STUART MURRAY WILSON Applicant

ANDNEW ZEALAND PAROLE BOARD Respondent

Hearing:         19 October 2010

Counsel:         Applicant in Person

A M Powell for Respondent

Judgment:      19 October 2010

JUDGMENT OF FOGARTY J

[1]      Mr Wilson is an inmate of Rolleston Prison.  He is the subject of an order under s 107 of the Parole Act 2002 that he not be released until 1 September 2012. The statute requires regular reviews of these orders and at a hearing on 11 May last there was a third review.   The Board on that day decided that there was no information to indicate there had been any change in his circumstances since the order was made and that the test under s 107 still applied and so they refused to revoke the order.

[2]      The reference to the test under s 107 is to subs (3) which provides:

107      Order that offender not be released

…

(3)       The Board must make the order if it is satisfied that the offender would, if released before the applicable release date, be likely to commit a specified offence between the date of release and the applicable release date.

[3]      As a consequence of that decision Mr Wilson brought proceedings by way of habeas corpus.  I decided that the habeas corpus application was misconceived but converted the proceedings to an application for judicial review and streamlined the process to enable the case to come to a prompt hearing without requiring Mr Wilson to file a statement of claim.

[4]      Mr Wilson has argued his case today.  The first argument and intended to be the  principal  argument  was  that  the  report  relied  upon  by the  Board  contained hearsay.  There are a number of hearsay statements in the report.  For example, in paragraph 12 there is a general comment:

Consistent with the previous reports, staff continue to report that Mr Wilson displays a range of problematic behaviours and attitudes.

And then goes on to give some instances.   To some extent these are difficult for

Mr Wilson to combat because the staff are not named in most instances.

[5]      Mr Wilson sought to apply the decision of R v Gwaze [2010] NZSC 52 in the Supreme Court on hearsay. That was a decision on the question of hearsay as applicable to a criminal trial. Section 117(1) of the Parole Act provides:

117      Information before Board

(1)       In any hearing before the Board, the Board may receive and take into consideration whatever information it thinks fit, whether or not the information would be admissible as evidence in a court of law.

It follows from that provision that there can be hearsay statements in reports.

[6]      The second argument of Mr Wilson was that the report relied upon by the Parole Board contains factual errors and he referred to paragraphs 16 and 17 of that report, but particularly paragraph 17 where the manager of the unit he is in reported that    every month  or  so  he  applies  for  a  habeas  corpus  and  that  he  has  been submitting various B10 complaint forms, typically at least two a week.

[7]      Mr Wilson stated that he has made three applications for habeas corpus and that was accepted by Mr Powell for the Crown, and as to B10 complaints, he lodged

two requests for information forms in which he asked how many B10 complaints are on his file and the answers are respectively:

I could only three complaints on file since 2007.

And another answer:

Since September 2007 Mr Wilson has submitted four complaints and one request for information.

So I conclude that the answer is a maximum of four, possibly three, since 2007.  On that basis the content of paragraph 17 is factually incorrect.

[8]      However, in a case of judicial review the presence of factual error in the materials considered by the agency with the power of decision does not mean that the decision of the agency can be overturned by the High Court.   It is usually necessary to demonstrate that the factual error has led the Court into asking the wrong question and in that way making an error of law.   For example, asking the wrong question by taking into account erroneous facts.  It is a difficult argument to run and it is not sustained on any basis in this case.  The decision of the Parole Board was directly related to a concern as to the safety to the community of releasing Mr Wilson based in turn on the psychological report.

[9]      The third argument that Mr Wilson ran was as to his ability to question the psychological opinion obtained by the Parole Board.    Paragraph 2 of the psychological report says:

Mr Wilson was informed of his right to a copy of the report and to request correction of factual information in the report, but not psychological opinion, according to the Privacy Act 1993 and the Health Information Privacy Code

1994.

[10]     If  that  sentence  is  considered  without  the  clause  “but  not  psychological opinion” then it is simply recording Mr Wilson’s rights to see the report and to correct factual information according to the Health Information Privacy Code.  That appears to be the main reason for the paragraph.  It appears to be a standard form paragraph, what we lawyers call “boilerplate”, included probably in every psychological report.   It is potentially confusing because when read by a prisoner

who  is  participating in  a  s  107  hearing it  might  indicate  that  the  prisoner  was somehow confined in the arguments that he could make to the Board in the course of the hearing.

[11]     In the course of a hearing he is clearly entitled, quite independent of the Privacy Act and the Health Information Privacy Code, to challenge any matters of fact contained in the report and to challenge the psychological opinion.   I would invite the Parole Board to review the continuance of such a clause in these reports that it receives.  It certainly has misled Mr Wilson and likely to have misled other persons who likewise are parties to a s 107 hearing.  But I am not satisfied that it has led to any material error, let alone a material error of law on the part of the Board when considering the issue they have to consider under s 107(3), namely whether Mr Wilson was likely to commit a specified offence between the date of release and the applicable release date.

[12]     The fourth argument that Mr Wilson raised is that this was not a report of the sort envisaged by Parliament to be submitted to the Board under s 107(4).  This is because it was largely, as he said, a rehashing of earlier reports and a record of conversations that the report writer had with other people.    There is, however, no restriction under the Parole Act as to the content of the report.  There is nothing in the Parole Act that prevents a report repeating content from earlier reports, nor, as I have covered, when dealing with hearsay point, reporting conversations with other persons.

[13]     The next argument that Mr Wilson raised is that the report before the Board on 11 May left out the fact of the decision of the Court of Appeal.  The Court of Appeal had heard an appeal by Mr Wilson against the decision of French J and had decided that there was no jurisdiction to hear that appeal.  The decision of French J is reported in the report to the Board but there is no reference to the Court of Appeal decision.  The report to the Board was dated 6 April.  The decision of the Board was on 11 May and the decision of the Court of Appeal was on 26 June.  Nothing turns on this point and even if the Court of Appeal decision had been earlier it was decided on a jurisdictional point which is nothing to do with the merits of this case.

[14]     The next argument that Mr Wilson presented to me is based on a question asked by his counsel, Mr Andrew McKenzie, at the hearing, of Ms Waugh, the psychologist, as to whether or not her report was honest and factual.  She answered, yes.   Mr Wilson submitted plainly it was not.   This is obviously because of the reasons which I have already canvassed in this judgment.  To my mind nothing turns on this point.  The report is partly factual, partly opinion, and obviously is written in good faith.  The question was interpreted by Ms Waugh obviously as a challenge to her integrity and hence the answer “yes”.

[15]     The next argument Mr Wilson raised relates to paragraph 20 of her report in which he is recorded as continuing to protest his innocence.  There is a well known policy of the Parole Board to encourage convicted persons to acknowledge their guilt and it would appear that such acknowledgment is a material consideration as to whether or not offenders should be released. That is not the test under s 107 which is dealing with the question of release after two-thirds of the sentence has been served. The test at that point is contained in subs (3).  However, the question of whether or not Mr Wilson is accepting or disputing that he may be of risk to the community, is relevant  and in that context an assertion of his innocence  regarding his current convictions becomes a relevant consideration and I presume it is in that context that the material was included in the report.

[16]     Mr Wilson draws a distinction between maintaining that he is not guilty on the charges for which he was convicted from asserting his innocence.   He said he does not assert his innocence.  He asserts that he is not guilty of the convictions.  He says he has apologised to the public and did so at the Court hearing.

[17]     It is plain that Mr Wilson’s principal grievance is that he has now served two- thirds of his sentence and he is not being released when a number of other offenders who have disputed their current convictions have nonetheless been released.  Again, I do not think this point raises any material error of law making available judicial review.

[18]     The next argument Mr Wilson raised addressed paragraphs 24, 26, 27 and 29 of the report.  This part of the report deals with his assessment in recent reports to the

New Zealand Parole Board as being a high risk of sexual recidivism, particularly by Mr Stenhouse in July 2008 and March 2009 and also by Ms Waugh on 21 October. He  criticised  the  relevance  of  these  materials.    He  said  he  had  had  no  recent interview with Mr Stenhouse.   He had had only a four minute interview with Ms Waugh.  He argued that inasmuch as this material was in the report the report was not an up-to-date report as must have been intended by Parliament for the purposes of s 107(4).

[19]     There is no doubt that Mr Wilson is right inasmuch as Parliament requires a six monthly review of decisions under s 107 requiring the prisoner to remain in prison beyond the final release date, the two-thirds period.  Obviously if there is to be  a  review every six  months  the  question  is:    what  is  the  applicant’s  present position?   That is very similar to the conclusion of the Board that nothing had materially changed.

[20]     When dealing with  the  question  of  risk of  sexual  recidivism  patterns  of sexual preference including deviant sexual preference tend to be ongoing and it is rational to report earlier findings and to examine whether there has been anything that has changed.   I do not think that the logic being pursued in the report can be criticised  in the  way that  Mr  Wilson  has  done.    If he  had  only a  four  minute interview with the psychologist that may be a matter for some concern.  But it may well be that Ms Waugh has had other contact with him during the period of time. These are factual matters which the Parole Board needs to take into account.  They are not issues of law which might trigger a judicial review.

[21]     Mr  Wilson  concluded  his  argument  contending  that  this  Court  should overturn the report or dismiss the report.  For the reasons I have given there is no significant error in the report and in any event the ultimate question is whether or not the Parole Board decision on 11 May can be overturned.  I do not think that there is any basis that Ms Waugh intended to mislead the Board at all.

[22]     Finally, Mr Wilson raised as another matter an unfair practice he considered of the Parole Board. He pointed out that when there is some consideration of whether or not he should be released to live with his mother the Probation Service told his

mother that were he to be placed in his mother’s residence they were going to tell all her neighbours of what he had done.  The response of his mother was to send the Probation Service people away.

[23]     Mr Wilson said that there is legal power to do that sort of thing in the United Kingdom but it is not part of the law in New Zealand.  This aspect of his argument is not directly related to the issue as the question of placement did not even come to be considered because of the concern about the risk of offending.   Mr Powell has helpfully confirmed that there is no statutory power to do this although there appears to be a practice on the part of the Probation Service and/or the police to inform the neighbourhood.  He has also drawn to my attention a decision of the District Court: Brown v Attorney-General [2006] NZAR 552 a tort of breach of privacy succeeded. This is not the occasion for this Court to examine the legality of this conduct including whether or not it needs statutory authority or whether or not it might constitute any common law tort.

[24]     Finally, Mr Wilson also criticised the policy of the New Zealand Parole Board when prior to the hearing seeking advice as to whether or not the prisoner wished to be represented by a lawyer and providing that was only possible if the Board agrees.  That is a reference to s 49(3)(c) of the parole Act which provides that the offenders are entitled to appear and make submissions to the Board at attended hearings and with the leave of the Board be represented by counsel.   In this case Mr Wilson was represented by counsel, Mr McKenzie.  There is power for the Parole Board to draw to the attention of a prisoner the need for the Board to agree.  There is nothing arising out of that submission which needs to be examined in an application for a judicial review.

[25]     For these reasons I am satisfied that Mr Wilson has not made out a case for the Court intervening to set aside the decision of the Parole Board of 11 May last. Accordingly, this application for judicial review is dismissed.

Solicitors:

Crown Law Office, Wellington, for Respondent

cc:  Mr S M Wilson

Rolleston Prison