ERICSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 633

ERICSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 633 [10December 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA584/2019[2019] NZCA 633BETWEEN JOHN FREDERICK ERICSONAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 14 November 2019Court: Courtney, Brewer and Gendall JJAppearances: Appellant in personD G Johnstone for RespondentJudgment: 10 December 2019 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Ericson is serving a sentence of life imprisonment for the murder of hiswife. He was released on parole in September 2018. He was recalled from parole inMarch 2019 and has since been held in custody. On 23 October 2019 Mr Ericson filedan application for habeas corpus which was refused the next day, on the papers, byNation J.1 Mr Ericson appeals that refusal.Discussion[2] Mr Ericson was entitled to challenge the legality of his detention by applyingfor a writ of habeas corpus.2 He is entitled now to appeal the High Court's refusal ofhis application.3[3] The issue in the High Court, and for us, is whether the respondent hasestablished that Mr Ericson's detention is lawful.[4] On the face of the record Mr Ericson is lawfully detained:(a) He has been convicted of murder and sentenced to life imprisonment.4(b) His recall from parole was the subject of a final recall order made bythe Parole Board on 26 March 2019.(c) The Parole Board's decision was confirmed on review by theChairperson of the Parole Board on 15 May 2019.(d) Mr Ericson's appeals against the decisions of the Parole Board and itsChairperson were dismissed by Dunningham J on 30 July 2019.5[5] Mr Ericson applied for habeas corpus because he thought there was a legal flawin the process by which he was initially recalled from parole. Mr Ericson understoodit was his probation officer who made the recall application to the Parole Board.Section 60(1) of the Parole Act 2002 (the Act) empowers the respondent to make arecall application to the Parole Board in respect of an offender who is subject to1 Ericson v Attorney-General [2019] NZHC 2728.2 Habeas Corpus Act 2001, s 6.3 Section 16(1).4 R v Ericson HC Christchurch T40/60, 19 April 2000.5 Ericson v New Zealand Parole Board [2019] NZHC 1806.an indeterminate sentence. A probation officer can make a recall application only inrespect of an offender who is subject to a determinate sentence.6[6] Nation J held, in effect, that even if the probation officer had, in error, madethe application for his recall, that was irrelevant to the issue of whether Mr Ericson islawfully detained.7 It would be a technical error not going to the substance of the ordermade by the Parole Board, as confirmed on review by its Chairperson and on appealby the High Court.[7] The evidence picture before us is painted more clearly. Mr Johnstone forthe respondent gave us copies of the notice of recall application and the affidavit ofMr Clark in support, both dated 7 March 2019. As directed, Mr Clark has now filedan affidavit confirming the authenticity of these documents.[8] In short, it was Mr Clark who made the application for Mr Ericson to berecalled from parole. Mr Clark is not a probation officer. He is the RegionalCommissioner for the Department of Corrections in Christchurch. He holds adelegation from the respondent to apply under s 60(1) of the Act for an order thatan offender who is subject to an indeterminate sentence be recalled to continue servinghis or her sentence in a prison. The delegation was current at the time of his applicationin respect of Mr Ericson.[9] Mr Ericson acknowledged to us that he has copies of the 7 March 2019documents. However, he maintained his submission that the recall was legally withoutfoundation. He pointed to s 10 of the Corrections Act 2004 which prohibitsthe respondent from delegating the power to make an application under s 60(1) ofthe Act "to any staff member of a prison".[10] As Mr Clark's affidavit makes clear, he is not a staff member of a prison.86 Parole Act 2002, s 60(2).7 Ericson v Attorney-General, above n 1, at [9].8 The term "staff member of a prison" is defined in s 3 of the Corrections Act 2004. RegionalCommissioners, including Mr Clark, do not fall within that definition.[11] Mr Ericson's final fall-back was to the submission that the power granted bys 60(1) of the Act to the respondent to make a recall application in respect ofan offender who is subject to an indeterminate sentence is one that cannot bedelegated. We do not accept that submission. Section 41 of the State Sector Act 1988confers on the respondent as Chief Executive a broad power of delegation to aPublic Service employee. Mr Clark is clearly a Public Service employee and the onlyapplicable constraint on delegation is the one in s 10 of the Corrections Act to whichwe have already referred.[12] The respondent has established that Mr Ericson is lawfully detained.Accordingly, we do not need to decide whether Nation J was correct to hold that anyerror in the initial recall procedure would not invalidate the subsequent decisionsgranting the application for recall and confirming it.Result[13] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent