Wilson v Parole Board - [2010] NZCA 269

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA351/2009
[2010] NZCA 269
BETWEENSTEWART MURRAY WILSON
Appellant

ANDTHE NEW ZEALAND PAROLE BOARD
Respondent

Hearing:23 March 2010

Court:Glazebrook, Ellen France and Randerson JJ
Counsel:A J McKenzie and D Goldwater for Appellant
A M Powell for Respondent

Judgment:25 June 2010 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed for want of jurisdiction.
B        Costs are reserved.
REASONS
Glazebrook and Ellen France JJ  [1]
Randerson J (dissenting in part)  [102]
GLAZEBROOK AND ELLEN FRANCE JJ
(Given by Ellen France J)
Table of Contents
Para No.
Introduction  [1]
Background  [5]
Does this Court have jurisdiction to hear the appeal?  [10]
         The possible jurisdictional bases  [10]
         Is the appeal to the High Court under the Parole Act the final appeal?       [16]
         Civil or criminal?  [34]
         Summary Proceedings Act  [52]
         Conclusion  [54]
What is the test be applied under s 107?  [56]
The test adopted by the Board  [60]
         The approach in the High Court  [63]
         The submissions  [65]
         Discussion  [70]
Application of the test to Mr Wilson  [75]
         The High Court judgment  [75]
The Board’s reasoning  [76]
Discussion  [81]
Disposition  [99]
Costs  [100]

Introduction
[1]       Stewart Murray Wilson is serving a term of imprisonment of 21 years. This sentence was imposed on him on 15 March 1996.[1] On 16 December 2008, the Parole Board (the Board) made an order under s 107 of the Parole Act 2002 that Mr Wilson not be released before the end of his sentence. The Board must make an order under s 107 if it is satisfied that:[2]
... 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.
[1]      R v Wilson HC Wellington T 104/95, 15 March 1996.
[2]      Section 107(3).

[2] The effect of the s 107 order in Mr Wilson’s case is that he will remain in prison until 1 September 2012 (18 years from 15 March 1996 after allowance for days on remand, less three months).[3]
[3]Section 107(9) of the Parole Act provides that prisoners subject to s 107 orders have an applicable release date three months before the sentence end date.
[3] Mr Wilson sought a review of the Board’s decision under s 67 of the Parole Act. Judge Lovegrove on review upheld the Board’s decision.[4] Mr Wilson then appealed to the High Court. In a decision delivered on 21 May 2009, French J dismissed the appeal.[5] Mr Wilson now seeks to appeal to this Court. His proposed appeal raises three issues:
(a)Does the Court have jurisdiction to hear the appeal? This issue turns on whether the proceedings are civil or criminal and on whether the right of appeal to the High Court in s 68 of the Parole Act is final.
(b)What is the test to be applied in determining whether the threshold for making an order under s 107 of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NZCA 269
Decision Date: 25 June 2010

CaseChat Overview and Summary

This appeal was brought by Mr Wilson against a decision of the New Zealand Parole Board that he should not be released on parole before the end of his sentence. The Board's decision was upheld on review and on appeal to the High Court. Mr Wilson sought to appeal to this Court. The appeal raises issues as to whether this Court has jurisdiction to hear the appeal and, if it does, what is the test to be applied in determining whether the threshold for making an order under s 107 of the Parole Act is met and whether the test was met in Mr Wilson's case. The Court concluded that it did not have jurisdiction to hear the appeal because the right of appeal to the High Court in s 68 of the Parole Act is the final appeal. The Court also concluded that the test to be applied under s 107 of the Parole Act is that set out in Secretary for Justice v M and that the test was met in Mr Wilson's case. The appeal was dismissed for want of jurisdiction and costs were reserved.

Orders