DAVID RAYMOND LEWIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2018] NZSC 51

DAVID RAYMOND LEWIS v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS[2018] NZSC 51 [13 June 2018]NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OFCOMPLAINANTS PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 31/2018[2018] NZSC 51BETWEEN DAVID RAYMOND LEWISApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: Elias CJ, O'Regan and Ellen France JJCounsel: A J Bailey for ApplicantR K Thomson for RespondentJudgment: 13 June 2018JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONS[1] The applicant was convicted in 2012 on a number of charges of historicalsexual offending involving two victims during the periods 1976 to 1982 and 1994 to1996. He was imprisoned for six and a half years. His offending meant that he wasan eligible offender in terms of s 107C of the Parole Act 2002 and thus a person againstwhom an extended supervision order (ESO) could be made.[2] On 10 August 2017, the District Court made an ESO against the applicant fora period of seven years.1[3] The applicant appealed to the Court of Appeal, raising two grounds of appeal.The first was that the District Court Judge had no jurisdiction to make an ESO. Thesecond was that, if the District Court did have jurisdiction, the Judge had been wrongto find that there was a high risk that the applicant would commit a relevant sexualoffence, such a finding being a necessary pre-requisite to the making of an ESO. TheCourt of Appeal rejected both of these grounds.2[4] The applicant now seeks leave to appeal against the Court of Appeal decision,but only on the jurisdiction point.[5] The argument which the applicant wishes to make if leave is granted can besummarised as follows:(a) The respondent may apply for an ESO against an "eligible offender".The applicant accepts that he is an eligible offender.3(b) The application must be accompanied by the report of a healthassessor.4(c) The health assessor's report must address (among other things) whether"there is a high risk that the offender will in future commit a relevantsexual offence".5(d) Section 107B of the Parole Act defines three different terms, "relevantoffence", "relevant sexual offence" and "relevant violent offence". Inessence, "relevant sexual offence" means a sexual offence involvingphysical contact between the offender and the victim. It is a subset of1 Chief Executive of the Department of Corrections v Lewis [2017] NZDC 16804 (Judge O'Driscoll)[Lewis (DC)].2 Lewis v Chief Executive of the Department of Corrections [2018] NZCA 99 (Brown, Brewer andCollins JJ) [Lewis (CA)].3 As defined in s 107C of the Parole Act 2002.4 Section 107F(2).5 Section 107F(2A)(a)(ii).the broader term "relevant offence" which also includes relevantviolent offences and some offences under the Films, Videos, andPublications Classification Act 1993.(e) The applicant argues that, while the health assessor's report madereference to "relevant offending" and "sexual offending", it did notclearly address whether the applicant would in the future commit arelevant sexual offence. He also argues that, when the health assessorwas cross-examined in the District Court, she was vague about thestatutory terms, "relevant offence" and "relevant sexual offence".(f) The District Court had jurisdiction to make an ESO only if it wassatisfied that the applicant had a pervasive pattern of serious sexualoffending and that there was a high risk that the applicant would infuture commit a relevant sexual offence. The District Court Judgecould come to this view only after "having considered the mattersaddressed in the health assessor's report as set out in s 107F(2A)".6(g) Because, in the applicant's submission, the health assessor's report didnot address the question "whether there is a high risk that theoffender will in future commit a relevant sexual offence", the Judgecould not have considered "the matters addressed in the healthassessor's report as set out in s 107F(2A)", because that matter was notaddressed in the health assessor's report.(h) Thus, the Judge did not have jurisdiction to make the ESO.[6] The Court of Appeal rejected this argument on the facts, upholding the DistrictCourt's assessment that the health assessor had, in fact, addressed the question as towhether there was a high risk that the offender would in future commit a relevantsexual offence.7 It came to that conclusion after considering carefully the health6 Section 107I.7 Lewis (DC), above n 1, at [77]–[92]; Lewis (CA), above n 2, at [25]–[34].assessor's report and her answers to questions in cross-examination in the DistrictCourt.[7] The applicant argues that ensuring that courts considering the making of anESO "robustly scrutinise whether a Health Assessor's Report addresses the relevantstatutory criteria" is a matter of general and public importance. Thus, he argues, it isin the interests of justice that leave to appeal be granted.8[8] We accept that it is a matter of importance that a health assessor preparing areport to be provided to the court considering whether to make an ESO carefullyaddresses the statutory criteria. It is equally important that a Judge consideringwhether to make an ESO is vigilant to ensure that this occurs. However, we see thepresent case as turning on a question of interpretation of the health assessor's reportand her evidence in the District Court, a question on which the District Court andCourt of Appeal reached concurrent findings. In effect, we are being asked to act as asecond Court of Appeal on the question of interpretation of the health assessor's report,which is not this Court's function. We do not see any risk of a miscarriage of justicearising if we do not give leave in the present case.[9] For these reasons, the application for leave to appeal is dismissed.Solicitors:Patient & Williams, Christchurch for ApplicantCrown Law Office, Wellington for Respondent8 Senior Courts Act 2016, s 74(2); Supreme Court Act 2003, s 13(2).