JOHN FREDERICK ERICSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZSC 69

JOHN FREDERICK ERICSON v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS[2020] NZSC 69 [23 July 2020]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 46/2020[2020] NZSC 69BETWEEN JOHN FREDERICK ERICSONApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: Applicant in personD G Johnstone and J A Herring for RespondentJudgment: 23 July 2020JUDGMENT OF THE COURTA The application for an extension of time to apply for leaveto appeal is granted.B The application for leave to appeal is dismissed.C There is no order as to costs.____________________________________________________________________REASONS[1] The applicant is serving a sentence of life imprisonment for murder. He wasreleased on parole in September 2018, but recalled to prison in March 2019. Heremains in custody.[2] The applicant filed an application for habeas corpus in October 2019. Theapplication was dismissed by the High Court.1 The applicant appealed to the Court of1 Ericson v The Attorney-General [2019] NZHC 2728 (Nation J).Appeal against the High Court decision, but that appeal was dismissed.2 He now seeksleave to appeal to this Court against the decision of the Court of Appeal.[3] The application for leave to appeal to this Court was not filed within the20 working day period provided for in r 11(1)(b) of the Supreme Court Rules 2004.However, the respondent accepts that it is not prejudiced by the delay and does notoppose an extension of time being granted. We therefore grant the necessary extensionof time to apply for leave.[4] The Court of Appeal recorded that, on the face of the record, the applicant waslawfully detained because:3(a) he had been convicted and sentenced to life imprisonment;(b) his recall from parole was the subject of a final recall order made bythe Parole Board;(c) the Parole Board's decision was confirmed on review by thechairperson of the Parole Board; and(d) his appeals against the decisions of the Parole Board and its chairpersonwere dismissed by the High Court.4[5] The applicant's challenge to the legality of his detention is based on anargument that a warrant to recall him to prison could be made only by the respondentor the Commissioner of Police under s 60 of the Parole Act 2002. In the applicant'scase, the application for recall was made by the Department of Corrections' RegionalCommissioner for the Southern Region.52 Ericson v Chief Executive of the Department of Corrections [2019] NZCA 633 (Courtney, Brewerand Gendall JJ) [CA judgment].3 At [4].4 Ericson v New Zealand Parole Board [2019] NZHC 1806.5 Mr Ericson thought it had been made by his probation officer, but the Court of Appeal rejectedthis after being presented with copies of the application for recall and supporting affidavit, whichwere, at the Court's request, subsequently confirmed as authentic by way of a further affidavitfrom the Regional Commissioner: CA judgment, above n 2, at [7]–[8].[6] The Court of Appeal was satisfied that the Regional Commissioner held adelegation from the respondent under s 60(1) of the Parole Act and was thereforeauthorised to make the application. The Court rejected the applicant's argument thats 10(a) of the Corrections Act 2004, which prohibits the respondent from delegatingthe power to make an application for recall to "any staff member of a prison",prevented the delegation to the Regional Commissioner. This was because theRegional Commissioner was not, in fact, a staff member of a prison.6[7] The applicant wishes to renew in this Court his argument about theeffectiveness of the delegation to the Regional Commissioner. He also argues that hewas prejudiced by the fact that the Court of Appeal received an affidavit from theRegional Commissioner as to the authenticity of the notice of application for recalland supporting affidavit that had been provided to the Court.[8] We do not consider that the grounds for leave to appeal are met.7 On thedelegation point, we do not consider that the argument the applicant wishes to makehas sufficient prospects of success to justify a further appeal. On the affidavit point,we do not accept that the applicant was prejudiced by the Court of Appeal receivingformal proof of the documents that had been presented to it and which had been thesubject of submission at the Court of Appeal hearing.[9] The application for an extension of time to apply for leave to appeal is granted.[10] The application for leave to appeal is dismissed.[11] There is no order as to costs.Solicitors:Meredith Connell, Auckland for Respondent6 At [10].7 Senior Courts Act 2016, s 74.