Wilson v The New Zealand Parole Board HC Christchurch CIV 2010-409-459

[2010] NZHC 522

IN THE HIGH COURT OF NEW ZEALAND

CHRISTCHURCH REGISTRY

CIV-2010-409-000459

IN THE MATTER OF     the Judicature Amendment Act 1972

BETWEEN  STEWART MURRAY WILSON Plaintiff

ANDTHE NEW ZEALAND PAROLE BOARD Defendant

Hearing:         22 April 2010

Counsel:         A J McKenzie for Plaintiff

A M Powell for Defendant

Judgment:      22 April 2010

JUDGMENT OF PANCKHURST J

Introduction

[1]      In a sense this proceeding is a sequel to two habeas corpus applications heard

in this Court in December 2009 [1] and February 2010 [2]. The applications related to a Parole Board hearing on 15 December 2009. This was a six monthly review of an order made pursuant to s107 of the Parole Act 2002 by virtue of which Mr Wilson remains in prison beyond his final release date (or as it is often called his “two- thirds” date), on account of the risk it is thought he would pose if released.

[1] Wilson v The Chief Executive of the Department of Corrections & The New Zealand Parole Board

HC Christchurch CIV 2009-409-002896 Fogarty J, 9 December 2009. 

[2] Wilson v The Chief Executive of the Department of Corrections & The New Zealand Parole Board

HC Christchurch CIV 2010-409-000270 Panckhurst J, 11 February 2010.

[2]      The first  habeas  corpus  application  was  based  on  an  asserted  breach  of s107(6), whereby a non-release order must be reviewed by the Board at least once in

every six months following the making of the order.   Fogarty J found that the then

STEWART MURRAY WILSON V THE NEW ZEALAND PAROLE BOARD HC CHCH CIV-2010-409-

000459  22 April 2010

scheduled hearing on 15 December 2009 was not in breach of s107(6).   Hence, the issue of a writ of habeas corpus was denied.

[3]      In February of this year I heard the second habeas corpus application which was  based  upon  a  breach  of  s107(4).   This  subsection  requires  that  a  copy of  any report submitted to the Board for the purposes of a review hearing must be supplied to the offender at least 14 days before the review is to be heard.   This requirement was  not  complied  with,  but  in  the  event  I upheld  the  Board’s  decision  that  it  was nonetheless appropriate for it to continue with the hearing on 15 December 2009.

[4]      Despite  the  adverse  result  in  relation  to  both  habeas  corpus  applications, Mr Wilson brought the present application for judicial review – which is based on the same factual matters, although more particularly upon the acknowledged breach of s107(4) (non-compliance with the 14 day rule).

[5]      With reference to that breach, Mr McKenzie argued that illegality in a public law sense was established; and sought relief as follows:

(a)a declaration that the December 2009 review hearing ought not to have proceeded,

(b)     a declaration that the Board’s decision was unlawful, (c)          an order quashing the non-release order,

(d)     an order quashing the purported decision,

(e)     public law compensation in the amount of $500, and

(f)     costs.

I shall first consider the issue of illegality, and then the question of relief.

Was the Board’s decision affected by illegality?

[6]      Illegality is the sole ground raised in the statement of claim seeking judicial review. To my mind the  complaint  upon  which  the  application  is  based  (non-

compliance with s107(4)) does not fit comfortably within the recognised categories

of illegality [3].

[3] Joseph Constitutional Administrative Law in New Zealand 2nd  ed at paras 21.1-21.5.5.

[7]      The complaint is in reality one of procedural impropriety.  In essence s107(4)

is a procedural requirement and obviously one intended to ensure that parties be given adequate  notice  and  opportunity to  be  heard  (audi  alteram  partem). Indeed, counsel acknowledged as much, in that the argument  for  public  law  damages  or compensation was squarely based on s27(1) of the New Zealand Bill of Rights Act

1990, which section gave statutory recognition to these same common law rights.

[8]      But however the complaint is categorised, the first problem is in relation to evaluation  of  the  breach  and,  more  particularly,  whether  anything  occurred  which might afford a sufficient basis for judicial review.

[9]      Non-compliance  with  s107(4)  arose  because  Mr  Wilson  received  certain relevant reports only about a week before the hearing, not 14 days before then.  The Board acknowledged this procedural breach and assessed it as follows:

5.Approached  in  that  way  we  first  need  to  consider  the  nature  of  the reports that were not provided to Mr Wilson in time.  Nothing turns on the prisoner details report.  That is something Mr Wilson would have seen before.   It simply records the details of his sentence.   As for the Parole  Assessment  report  our  understanding  is  that  a  copy  was provided to him on 29 October 2009 and he was asked to sign it.  He refused. In  any  event  little  had  changed  from  the  previous  report prepared  six  months  before. As  for  the  psychological  report  from Ms Waugh  dated  21  October  2009,  Mr  Wilson  had  declined  to  take part in an interview with her for the purpose of preparing that report. However, he was informed of his right to a copy of the report when completed and one was offered to him.  As to the content of the report it   contains   little   new   information   compared   to   the   previous psychological report, and concludes that there has been no change in his risk.

6.Given the above circumstances, and the fact that Mr Wilson had seven days to consider the reports, we consider that in practical terms there has been no prejudice or unfairness to him.   And, we note, of course, that none is claimed.

[10]     In dismissing the application for habeas corpus in February 2010 I referred to

the Court of Appeal decision in Campbell v Superintendent, Wellington Prison [4]and concluded that the Board’s assessment of the significance of the breach was sound and that, therefore, no basis to impugn the resulting decision existed.   In substance, while  a  procedural  irregularity  or  error  had  occurred,  there  was  no  resulting unfairness which  blighted the Board’s decision to continue with the hearing at the scheduled time.

[4] [2007] NZAR 52 (CA).

[11]     Mr McKenzie did not seek to revisit the findings made in the context of the habeas corpus application. Instead, he contended that even if the Board’s decision itself could not be impugned (whether in a habeas corpus or judicial review context), nonetheless the fact was  there had been a procedural irregularity with reference to compliance with the 14 day rule and this of itself was sufficient to warrant a remedy in the context of this proceeding.

[12]     I very much doubt this. To  my  mind  the  effect  of  the  Board’s  ruling concerning non-compliance with s107(4) was that, although there had been a breach,

it had no affect on the fairness of the hearing in all the circumstances. Hence, there was no meaningful breach of Mr Wilson’s rights, nor for that matter of s27(1) of the Bill of Rights. It follows, in  my view, that  in  substance  there  is  no  basis  for  the intervention of this Court by way of judicial review. But, in case there is room for a different view as to this aspect, I shall briefly consider the remedies sought.

What, if any, remedy is appropriate?

[13]     Although  Mr  McKenzie  did  not  formally  abandon  the  other  relief  sought (para  [5]),  rightly  in  my  view  his  focus  was  upon  the  making  of  a  declaration confirming the breach of s107(4), coupled with an award of damages for a supposed breach of s27(1) of the Bill of Rights Act.

A declaration

[14]     Mr  McKenzie  submitted  that  at  the  very least  a  declaration  confirming  the breach of the 14 day rule was appropriate.   He stressed Mr Wilson’s position as a sentenced  prisoner,  and  contended  that  the  failure  to  accord  him  his  “mandatory statutory  right”  to  14  days’  notice  of  the  reports  to  be  relied  upon  at  the  review hearing should be marked by the making of a declaration.   This, it was said, would serve to vindicate the breach of Mr Wilson’s rights.

[15]     The jurisdiction to make a declaration is discretionary.  Indeed in the leading text, Zamir and Woolf, The Declaratory Judgment [5]  the authors stated at p 123:

[5] (3rd  ed, 2002). 

A most important feature of the declaratory judgment is that it is a flexible and discretionary remedy ...

I am well satisfied that this is not a situation where the making of a declaration is either appropriate or necessary.

[16]     The breach of the right was recognised and accepted by the Board at the time. Not only was it recognised, but the procedural irregularity was seriously considered. The  Board  assessed  the  impact  of  the  breach  and  in  a  well  reasoned  decision explained why it believed that non-compliance with the 14 day  rule should not hinder the scheduled hearing. This, I am satisfied, was vindication enough.

Damages

[17]     Mr McKenzie submitted that a  modest  award  of  damages,  no  more  than

$500, was appropriate to mark the breach.   Mr Powell, however, drew my attention

to Combined Beneficiaries Union Inc v Auckland City COGS Committee [6].   In this decision the Court considered the availability of damages as a remedy for a breach of s27(1) of the Bill of Rights Act following a finding of breach in the High Court. For present purposes it is not necessary to refer to the judgment in any detail.

[6] Combined Beneficiaries Union Inc v Auckland City COGS Committee [2009] 2 NZLR 56 (CA).

[18]     However, the Court referred to various considerations pertaining to an award

of damages, two of which are of present relevance:

[61]    ...    Damages  for  public  law  wrongs  are  not  normally  available  at common law and it is not the function of Bill of Rights damages to fill any perceived  gap  in  remedies  for  such  wrongs.   We  accept  the  respondents’ submission  that  it  would  be  inappropriate  in  any  event  to  isolate  only breaches  of  natural  justice  for  the  award  of  damages  and  not  include,  for example, damage arising from irrational decisions.   The scope of remedies for  public  law  wrongs  is  a  complicated  issue  and  should  be  tackled  in  a holistic rather than piecemeal fashion ...

And even more in point:

[65]   ...   There is a need to balance the various interests involved.   Bill of Rights damages are paid by the state. There is a public interest in ensuring that the state abides by the Bill of Rights Act. Equally, however, the nature of the breach must be such as would shock the public conscience and thus justify  the  payment  of  damages  out  of  the  public  purse. We  accept  the respondents’ submission that this means that payment of damages in respect of what can be classed as relatively minor bureaucratic bungles could not be justified.

[19]     It follows that awards of public law damages are the exception, rather than the rule.  Their award is likely to be rare.  The present case does not even come close

to one where damages would be appropriate.   Even a very modest award would be contrary to principle.

Result

[20]     The application for judicial review is dismissed.  No purpose would be served

by making an order for costs and, indeed, an order was not therefore sought.

Solicitors:

G C Knight Solicitor, Christchurch for Plaintiff  (Counsel:  Andrew J McKenzie, Barrister) Crown Law, Wellington Central, Wellington for Defendant