JOSHUA PERA VAN SILFHOUT v UDAYA LAKSHMAN AGAS [2023] NZSC 148

JOSHUA PERA VAN SILFHOUT v UDAYA LAKSHMAN AGAS [2023] NZSC 148 [6 November 2023]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 21/2023[2023] NZSC 148BETWEEN JOSHUA PERA VAN SILFHOUTAppellantAND UDAYA LAKSHMAN AGASPATHIRANNEHELAGERespondentHearing: 18 July 2023Court: Winkelmann CJ, O'Regan, Ellen France, Williams and Kós JJCounsel: D A Ewen and A L Hill for AppellantNo appearance for RespondentD J Perkins, Z R Hamill and I M C A McGlone as counselassisting the CourtJudgment: 6 November 2023JUDGMENT OF THE COURTA The appeal is allowed.B The award of $5,000 to the respondent made by theVictims' Special Claims Tribunal is set aside.____________________________________________________________________REASONSWinkelmann CJ, O'Regan and Ellen France JJ [1]Williams and Kós JJ [60]WINKELMANN CJ, O'REGAN AND ELLEN FRANCE JJ(Given by Ellen France J)Table of ContentsPara NoThe appeal [1]Background facts [10]The statutory framework [13]The earlier decisions [26]The decision of the Victims' Special Claims Tribunal [26]The High Court decision [29]The Court of Appeal decision [32]The approach to interpretation and statutory purpose [38]Summary of submissions [40]Does time spent on remand suspend the limitation period? [44]Costs [56]Result [59]The appeal[1] This appeal deals with the interpretation of s 64 of thePrisoners' and Victims' Claims Act 2005 (the Act). That section suspends thelimitation period, the time limit otherwise applicable to a claim made by the victim ofoffending against the offender, while the offender is serving a sentence ofimprisonment. The issue on the appeal is whether time spent in remand prior tosentence counts to suspend the limitation period.[2] The issue arises in this way. In early July 2010 the appellant, Mr van Silfhout,went into a service station where the respondent, Mr Pathirannehelage, was workingon his own. The appellant had a weapon. He threatened Mr Pathirannehelage andtook money and cigarettes. The appellant was subsequently charged and convicted ofaggravated robbery. He was sentenced to four years and three months' imprisonment.1[3] On 21 January 2020, the Department of Corrections agreed to pay the appellant$12,000 (GST included) compensation for an alleged breach of privacy. ThePrisoners' and Victims' Claims Act requires this money (less minor deductions) to bepaid into a trust account to be available for victims' claims. In general terms, the Actrelevantly provides that when an imprisoned offender recovers compensation from the1 R v Van Silfhout DC Tauranga CRI-2012-070-6107, 13 May 2014.State for breaches of human rights or interferences with privacy, victims of the crimecommitted by that offender can, themselves, make a claim to the Victims' SpecialClaims Tribunal for compensation against the prisoner. The Tribunal decides whetherthe victim is entitled to compensation. If so, the compensation payment is to be met,to the extent that it can be, from the amount earlier awarded to the offender.[4] In this case, upon receiving a claim from the respondent in April 2020, theTribunal made an award of $5,000 to the respondent.2 The Secretary for Justice wasdirected to pay that sum from the amount held in trust to the respondent.[5] The appellant appealed the decision to the High Court. His case was that therespondent's claim had been filed too late so that it was time-barred under theLimitation Act 1950.[6] Section 64 of the Prisoners' and Victims' Claims Act, as we have indicated,suspends the six-year limitation period that would otherwise apply "while the offenderis serving a sentence of imprisonment" for the offending giving rise to the claim "in apenal institution, prison, or service prison". We will discuss other relevant provisionsin the Act and elsewhere shortly. If the words "serving a sentence of imprisonment"include time spent in prison on remand, the respondent's claim was brought in time.That is because the six-year limitation period which applied would have beensuspended for about a year and three and a half months when the appellant wasremanded in custody.3 If those words do not include pre-sentence detention, therespondent's claim was out of time.[7] The High Court dismissed the appellant's appeal.4 His appeal to theCourt of Appeal was also unsuccessful.5 Both Courts found that the words "serving asentence of imprisonment" included pre-sentence detention. In doing so, they reliedon wording in the Parole Act 2002 about how "time served" under that Act iscalculated. Both Courts accordingly found that the claim by the respondent wasbrought in time.2 Pathirannehelage v Van Silfhout [2021] NZVSC 3 (Judge Blackie).3 Limitation Act 1950, s 4(1). The 1950 Act applies by virtue of s 59 of the Limitation Act 2010.4 Van Silfhout v Pathirannehelage [2021] NZHC 2268 (Cooke J) [HC judgment].5 Van Silfhout v Pathirannehelage [2023] NZCA 5 (Miller, Brown and Katz JJ) [CA judgment].[8] The appellant says that the Court of Appeal was wrong. He argues, instead,that the Prisoners' and Victims' Claims Act is clear that the words in issue only includetime spent in prison after sentence and that when the Act is read as a whole, theParole Act approach (which would incorporate pre-sentence detention on remand inprison) does not apply.[9] The respondent has played no part in the appeal. Accordingly, so that we couldhear argument to the contrary to that advanced by the appellant, counsel for theSecretary for Justice was appointed to assist the Court by providing those opposingarguments. The Secretary for Justice supported the decision of the Court of Appeal,arguing that s 64 of the Prisoners' and Victims' Claims Act cannot be read in isolationfrom the Parole Act.Background facts[10] The six-year limitation period for the respondent to make his claim under theAct started running on 9 July 2010, the date of the aggravated robbery.6 The appellantwas not arrested and charged until some time later. He was remanded in custody on30 January 2013. He remained on remand until 12 May 2014 and was sentenced thefollowing day.[11] The appellant was released on parole on 21 November 2016 and was subjectto an interim recall order on 1 March 2017. He was detained again in prison under therecall order from 2 March 2017 and then released on his sentence expiry date on2 May 2017. As we have noted, the Department of Corrections agreed to pay himcompensation on 21 January 2020. The respondent's claim for compensation foremotional harm was subsequently received on 2 April 2020.[12] The issue in the case is, as we have indicated, whether the period of one yearand three and a half months on remand in custody had the effect of suspending thelimitation period. If the limitation period was not suspended whilst the appellant was6 There is a lack of clarity about whether the robbery took place on 8 or 9 July 2010. We follow theTribunal, High Court and Court of Appeal in referring to 9 July. The appellant's chronology refersto 8 July. Nothing turns on this difference.remanded in custody prior to sentence, the respondent's claim would have been at least10.5 months out of time.7The statutory framework[13] As the Court of Appeal noted, the Prisoners' and Victims' Claims Act was alegislative response to the judgment in Taunoa v Attorney-General, which awardeddamages for breaches of the New Zealand Bill of Rights Act 1990 to prisoners whohad been subjected to the Behaviour Management Regime, a programme then inoperation at Auckland Prison.8 The Court of Appeal adopted the submission fromMr Ewen for the appellant that "there was a perception that something had gone veryfar awry when prisoners were being awarded large amounts of compensation on theirclaims without the ability for victims to make claims against that sum".9[14] The Act has two Parts. Part 1 sets out the general provisions. Part 2 sets upthe regimes for prisoners' and victims' claims. As Mr Perkins, counsel for theSecretary of Justice, submitted, Part 2 of the Act is doing a number of different things.That is apparent from s 3 of the Act which sets out a series of purposes. Section 3(1)provides that the purpose of subpart 1 of Part 2, the subpart dealing with prisoners'claims, is "to restrict and guide the awarding of compensation sought by specifiedclaims" and, this, "in order to help to ensure that the remedy of compensation isreserved for exceptional cases and used only if, and only to the extent that, it isnecessary to provide effective redress".[15] Section 11 of the Act gives an overview of this subpart, which is all we neednote for present purposes. Section 11 provides as follows:To help to achieve its purpose, when compensation is sought from a court ortribunal by a specified claim, this subpart—7 For completeness we note that there was another period during which the limitation period wassuspended in this case under s 64B of the Prisoners' and Victims' Claims Act 2005. Thatsuspension addresses the period until the standard statutory deadline for filing a victim's claim.The only point we need to make about this aspect is that, in agreement with the Court of Appeal,we consider the better reading of s 64B is that the limitation clock stops running when notice isgiven to the victim of payment into the Secretary's account. This is what s 28(1)(a) and (3) appearto envisage. See CA judgment, above n 5, at [5], n 5. Compare Williams and Kós JJ below at [65].8 Taunoa v Attorney-General (2004) 8 HRNZ 53 (HC).9 CA judgment, above n 5, at [7]. See also (14 December 2004) 622 NZPD 17987; andPrisoners' and Victims' Claims Bill 2004 (241-2) (select committee report) at 1.(a) ensures compensation is not awarded unless the plaintiff has firstmade reasonable use of the specified internal and external complaintsmechanisms reasonably available to him or her; and(b) requires other remedies to be used if, in the particular circumstances,they are capable, alone or in combination, of providing effectiveredress; and(c) encourages timely mitigation of loss or damage by the plaintiff andthe defendant if that is reasonably practicable; and(d) ensures the court or Tribunal takes into account specified matters(including the extent (if any) to which effective redress has been, orcould be, provided otherwise than by compensation) before awardingcompensation.[16] The stated purpose of subpart 2 of Part 2, which deals with claims by victims,is to:10(a) establish, require payments into, and regulate the operation of, avictims' claims trust bank account; and(b) provide a procedure for the making and determination of victims'claims.[17] The regime set up by subpart 2 makes provision for a trust account into whichcompensation payments are to be placed. It also allows victims to pursue claims undera speedier and less expensive process. Under s 18 of the Act, certain sums are to bededucted from the amount paid into the trust account, for example, to meet chargesunder the Legal Services Act 2011, and any reparation outstanding.[18] The key section for present purposes, that is s 64, is found in subpart 3 ofPart 2. The stated purpose of that subpart does not advance matters in terms of thequestion for us. That purpose is "to suspend the running of limitation periods forcertain claims by victims".11[19] Section 63 makes it clear that s 64 applies to applicable limitation periods foractions based on a claim made by or on behalf of a victim, against an offender, andbased on acts done or omitted to be done by the offender in committing the offence.10 Section 3(2).11 Section 3(3).[20] Section 64 provides as follows:64 Limitation periods suspended while offender serving sentence ofimprisonment(1) The limitation periods to which this section applies cease to run whilethe offender is serving a sentence of imprisonment in a penalinstitution, prison, or service prison.(2) In this section, serving a sentence of imprisonment in a penalinstitution, prison, or service prison—(a) means serving in a penal institution, prison, or serviceprison—(i) the sentence of imprisonment for the offence (asdefined in section 5(1)(a)(ii)); and(ii) any earlier sentence of imprisonment on which thesentence of imprisonment for the offence is directedto be served cumulatively; and(iii) any later sentence that is directed to be servedcumulatively on the sentence of imprisonment for theoffence; and(b) includes spending time in a penal institution or a prisonfollowing a related recall application (as defined insection 59 of the Parole Act 2002), but only if a final recallorder (as defined in section 4(1) of that Act) is madefollowing the recall application.[21] Section 5(1)(a) provides that an offender in relation to a victim "for thepurposes only of subpart 3 of Part 2" (the part dealing with the suspension of thelimitation period) means: a person—(i) convicted (alone or with others) by a court or the CourtMartial of the offence that affected the victim; and(ii) on whom a court or the Court Martial has, because of theperson's conviction for that offence, imposed a sentence ofimprisonment (the sentence of imprisonment for theoffence);[22] For all other purposes, an offender is relevantly defined in s 5(1)(b) as a personfound guilty by a court of the offence that affected the victim, or found guilty of thatoffence by a disciplinary officer under the Armed Forces Discipline Act 1971, or whopleads guilty to that offence.[23] Section 5(2) makes it clear that for the purposes of s 5(1)(a) it is immaterialwhether, at the time the court imposed the sentence of imprisonment, the person wasalready subject to, or was at that time or later also made subject to, a sentence ofimprisonment for another offence or offences.[24] The "sentence of imprisonment" referred to in both ss 5 and 64 is also a definedterm. Relevantly, the term means a sentence of imprisonment imposed under any oneor more enactments, such as the Sentencing Act 2002.12 It includes both determinateand indeterminate sentences of imprisonment but excludes, for example,imprisonment for non-payment of a sum of money.[25] We come back shortly to the detail of the relevant provisions of the Parole Actbut note at this point that the critical provision, s 90, includes the period spent inpre-sentence detention for the purposes of calculating the "key dates" (start date,sentence expiry date and release date)13 and non-parole period of a sentence ofimprisonment.The earlier decisionsThe decision of the Victims' Special Claims Tribunal[26] Judge Blackie considered the claim for $10,000 compensation for emotionalharm suffered by the respondent. In light of similar cases, he awarded the respondent$5,000.[27] In terms of the limitation period, it appears that the Judge considered thatfurther periods of imprisonment imposed for unrelated offending subsequently alsohad the effect of stopping the limitation clock. That is, it was not necessary for thesentence to have any nexus to the offence committed against the victim seekingcompensation. The Judge said this:[8] Although the offending occurred in July 2010 and, therefore, thenormal limitation period, by which time a claim would need to have been filed,would have expired in July 2016 on account of the respondent having beensentenced to a period of imprisonment for four years and three months in 201412 Section 4.13 Parole Act 2002, s 4.and, indeed, further sentences of imprisonment thereafter, the claimant waswithin the limitation period when his claim was received on 2 April 2020.[28] It was common ground in the High Court that this approach was not correct.14First, it is only the time served in prison that is excluded rather than simply deductingthe total sentence imposed. Secondly, the sentence of imprisonment which may triggersuspension under s 64 is the sentence imposed for the offence to which the Tribunalclaim relates.The High Court decision[29] Cooke J dealt first with the statutory purpose. The Judge determined therewere two purposes, as follows:[39] the limitation period is extended, and the running of limitationperiod suspended, whilst the prisoner is serving the sentence of imprisonmentfor the offending involving that victim. That is because it is usually futile toseek to sue prisoners whilst in prison, and there is also a nexus between therelevant imprisonment and offending against that victim.[30] The High Court then turned to the ordinary meaning of s 64. The Judgeconsidered that the ordinary meaning of the words "while the offender is servingin prison the sentence of imprisonment for the offence" were those that peoplemore familiar with the context would adopt. Cooke J said that "[t]hose familiar withthe context [of the way that sentencing works] understand that 'time served' includespre-sentence detention".15[31] The Judge considered that this approach was consistent with the statutorypurposes. That was because, first, pre-sentence detention along with thatpost-sentence, involve a period where it might be futile for the victim to try to sue theprisoner. Second, the pre-sentence detention would normally be for the particularoffending against the victim, thereby creating a nexus to the offending making it fairor just for the suspension period to be engaged. The Judge went on to consider otherfactors. Essentially, the Judge considered that the way in which the sentencing regimeprovided for in the Sentencing and Parole Acts operates "as a matter of fact and law"14 HC judgment, above n 4, at [25].15 HC judgment, above n 4, at [44].could be said to be the "starting point for understanding the regime established" by thePrisoners' and Victims' Claims Act.16The Court of Appeal decision[32] The Court of Appeal began by identifying the statutory purpose. Like theHigh Court, the Court did not find a great deal of assistance in the statement of thepurpose for the relevant subpart in the Act. The Court of Appeal accepted theHigh Court's statement of the purposes set out at [29] above.17[33] The Court of Appeal accepted the submission for the appellant that the"trigger" for the suspension of the limitation period "comprises the dual events ofconviction and sentence in respect of the offence which affected the victim making aclaim".18 But the Court did not accept what had been the second step of the argumentfor the appellant, namely, that the period of suspension must post-date the occurrenceof both those events.[34] The Court made four points about s 64 which it saw as providing a formula forcalculating how long the limitation period would be suspended. First, the Court notedthat this formula was not limited to the "sentence of imprisonment for the offence" asdefined in the Act. Rather, it extended to associated cumulative sentences "and toparticular instances of prison detention consequent upon recall from parole".19 Thenext point made was that the period of suspension was not limited to "future directed"service of the sentence but, because of s 64(2)(a)(ii), included serving "earliersentences of imprisonment on which the victim-affected sentence of imprisonment"was to be served cumulatively.20[35] Third, the Court considered it was inherent in the "extended definition" thatcalculating the period of any suspension would inevitably involve a retrospectiveanalysis.21 That was seen as apparent from both the possibility of a subsequent16 At [53].17 CA judgment, above n 5, at [35].18 At [39].19 At [41].20 At [42].21 At [43].cumulative sentence as envisaged in s 64(2)(a)(iii) and from the fact the calculation oftime spent in detention included recall from parole but only where a final recall orderwas made. Finally, the Court said:[44] the reference in that bespoke definition to such concepts which arethe subject of the sentencing and parole legislative regimes necessarilyimports those concepts into subpt 3. It follows in our view that the sentencingand parole regimes are thereby a part of the subpart's context, in the light ofwhich the meaning of s 64(1) is to be ascertained.[36] In addition, the Court considered that its approach resulted in parity with theeffect of s 177A of the Armed Forces Discipline Act.[37] Whether the Courts below were correct turns on the interpretation of thestatutory scheme.The approach to interpretation and statutory purpose[38] In determining whether the Court of Appeal was correct to treat the Parole Actregime as part and parcel of the relevant provisions of the Prisoners' and Victims'Claims Act, there is no dispute that it is necessary to consider both the text and purposeof the latter Act and that context is relevant.22[39] Nor is there any real challenge to the assessment of the Courts below that thepurpose of the Act in suspending the limitation period was to facilitate the making ofclaims by victims. In particular, there was a recognition of both the futility of seekingto sue offenders whilst the offender is in prison and of the link between the relevantimprisonment and the offending against the victim seeking compensation from theoffender. In terms of the latter point, the Act envisages prisoners might come intofunds (as the appellant did), recognises that this makes successful claims by victimspossible, and seeks to make it easier to bring those claims.22 Legislation Act 2019, s 10; and see also Commerce Commission v Fonterra Co-operative GroupLtd [2007] NZSC 36, [2007] 3 NZLR 767.Summary of submissions[40] The case for the appellant is that the relevant context here is provided by thelimitations under the Limitation Act, not the Sentencing or Parole Acts. ThePrisoners' and Victims' Claims Act makes specific provision for the application of theParole Act provisions and otherwise those provisions are only relevant where it isnecessary for them to apply in order for the Act to work. The appellant says that, basedon its clear wording, s 64 applies to an offender serving a sentence of imprisonment,which means that the defendant has to have been found guilty and sentenced for therelevant offence.[41] Counsel assisting the Court say that the Prisoners' and Victims' Claims Actcannot be read in isolation from the Parole Act because the Parole Act regime is centralto calculation of the period of time the offender will serve in prison. In particular,when an offender is sentenced to imprisonment, the Parole Act deems any time spentin pre-sentence detention to form part of the time served under the sentence. Theargument is that to the extent the Parole Act applies pre-sentence detention to sentencecalculation, it must apply equally to s 64. Further, the point is made that the sentenceimposed is that imposed under the Sentencing Act.[42] It is also submitted that s 64 is to be construed as an exception to the generalposition in terms of limitation periods. It has been seen as appropriate to strike thebalance differently from the general position in order to achieve the statutory purposeof the suspension provisions.[43] We address additional detail in the submissions as necessary in the discussionthat follows.Does time spent on remand suspend the limitation period?[44] Section 90 of the Parole Act is central to the approach adopted by theCourt of Appeal and to the arguments before us. It is helpful at this point to set outthe relevant provisions of the Parole Act. The starting point is s 89 which makes itclear that in determining time served, the provisions in the relevant subpart, whichinclude s 90, apply. Section 90 specifies that time served includes pre-sentencedetention. We set out s 90 in full:90 Period spent in pre-sentence detention deemed to be time served(1) For the purpose of calculating the key dates and non-parole period ofa sentence of imprisonment (including a notional single sentence) andan offender's statutory release date and parole eligibility date, anoffender is deemed to have been serving the sentence during anyperiod that the offender has spent in pre-sentence detention.(2) When an offender is subject to 2 or more concurrent sentences,—(a) the amount of pre-sentence detention applicable to eachsentence must be determined; and(b) the amount of pre-sentence detention that is deducted fromeach sentence must be the amount determined in relation tothat sentence.(3) When an offender is subject to 2 or more cumulative sentences thatmake a notional single sentence, any pre-sentence detention thatrelates to the cumulative sentences may be deducted only once fromthe single notional sentence.[45] It is clear from s 91, which defines "pre-sentence detention", that time onremand is included. Section 91(1) states as follows:(1) Pre-sentence detention is detention of a type described in subsection(2) that occurs at any stage during the proceedings leading to theconviction or pending sentence of the person, whether that period (orany part of it) relates to—(a) any charge on which the person was eventually convicted; or(b) any other charge on which the person was originally arrested;or(c) any charge that the person faced at any time between his orher arrest and before conviction.[46] We consider that the approach adopted by the Court of Appeal and supportedby counsel assisting is not the correct interpretation of s 64. We say that for a numberof reasons.[47] First, it is plain on its face that s 90 of the Parole Act is a deeming provisionfor a particular purpose. That stated purpose is to assist in defining key dates for thepurposes of undertaking calculations necessary for the administration of the sentence.Whilst the key dates include the start date that is, again, just a deemed date to enablecalculations to be easily undertaken. It is not directed to the status of the incarceration,but it is the status of incarceration which is in issue here. It is not apparent why s 90should be used to determine that different issue. Indeed s 89 and the opening wordsto s 90(1) are explicit that it applies only for the purposes of undertaking thosecalculations. As to that, Mr Ewen directs us to other parts of the Parole Act, forexample, to s 76(1) which provides that the start date of a sentence is the date on whichthe sentence is imposed, subject to ss 77–81.23[48] Second, contrary to the view adopted by the Court of Appeal, we consider thatthe specific references to the impact of cumulative sentences in s 64(2)(a)(ii) and (iii)and to the effect of recall in s 64(2)(b) would be redundant if the Parole Act applied.In other words, it would not be necessary to make provision for those situations if thesentencing and parole regime governed the situation. The other side of the coin is that,as Mr Ewen submits, there is no necessity to incorporate the latter regime here. Wherethe broader sentencing regime applies, the Act makes that clear, for example in thedefinition of a sentence of imprisonment in s 4. We therefore disagree with the Courtof Appeal that s 90 applies as a matter of necessity.[49] Third, the phraseology used in s 64 suggests a prospective element. Thelimitation periods which "cease to run" do so while the offender "is serving" thesentence of imprisonment. The Court of Appeal's approach imposes a level ofretrospectivity and, contrary to the view of the Court, we do not see s 64 as inevitablyinvolving some retrospectivity.24[50] We accept Mr Perkins' point that the phrase "cease to run" reflects the broaderlimitation context.25 But clearer language would be needed to enable the inference tobe drawn that the limitation period is also suspended by the period during which the23 "Start date" is defined, in relation to a sentence of imprisonment, as "the date on and from whichan offender who is subject to the sentence begins to be subject to it": Parole Act 2002, s 4.24 The Secretary for Justice need not give the notice otherwise required to a victim or take steps toascertain the contact details of a victim where the Secretary believes on reasonable grounds alimitation defence may be successful: Prisoners' and Victims' Claims Act, ss 21(5) and 24(5). Butthat says nothing about the extent to which the words "is serving" are prospective.25 See Credit Suisse Private Equity LLC v Houghton [2014] NZSC 37, [2014] 1 NZLR 541 at [156]per McGrath, Glazebrook and Arnold JJ.offender is, subsequently, "deemed to be serving" the sentence by virtue of s 90.Contrary to the submissions from counsel assisting, we consider those additionalwords would effectively have to be read into s 64.[51] The fact that s 64 applies to an "offender" also highlights problems with theinterpretation adopted by the Court of Appeal. Mr Perkins argues that it is difficult todraw much from the different subparts of the Act as they have different purposes. Thatis true. However, an "offender" is defined, as we have seen in s 5, for the purposes ofthe limitation periods specifically. An offender is a person who has been convicted ofthe relevant offence and had a sentence of imprisonment imposed. The effect of s 64is that, from the point after that, the limitation period is suspended. Again, thatsuggests a forward-looking rather than a retrospective approach. Further, the specialpurpose definition makes no reference to the Parole Act.[52] For these reasons, we consider that the textual considerations do not supporttreating the Parole Act as effectively governing the meaning of s 64.[53] Nor do we see the approach we have adopted as contrary to the statutorypurpose. Obviously the respondent's claim, on our approach, would be time-barredand we accept that an expansive approach was intended towards the facilitation ofclaims by victims. But that general point does not add particularly to the question thathas arisen here where quite how broad the approach was intended to be is not apparentfrom the legislative history. Indeed, the legislative history does not indicate thatspecific attention was given to the impact of time spent on remand on the limitationperiods.26[54] Both the appellant and counsel assisting pointed to examples of arbitraryconsequences under either of the interpretations advanced. The most that can bedrawn from these examples is that they serve only to highlight tensions apparent in thelegislative scheme. Nor do we consider the references to the wording "serving asentence of imprisonment" in other legislative contexts of assistance.26 The passages relied on by counsel assisting serves only to emphasise the point. See, for example,(1 June 2005) 626 NZPD 21016–21017.[55] Our conclusion is that clearer words were necessary to strike the balance in theway in which the Court of Appeal has done. We consider s 90 applies for a specificpurpose and does not change the prior character of remand time for the purposes ofs 64. This Court is of the view that, under the Prisoners' and Victims' Claims Act, thetime spent in remand by the appellant prior to sentence does not count to suspend thelimitation period.Costs[56] Mr Ewen has not yet submitted an account for his costs. He is concerned thatif he makes a claim for those costs on the legal aid fund, that sum will then be clawedback from the funds held by the Secretary for Justice in the trust account under thePrisoners' and Victims' Claims Act. The result would be that the appellant wouldreceive no funds himself although successful.[57] In these circumstances, Mr Ewen asks the Court to indicate that this is a casewhere it would be just and equitable for the Legal Services Commissioner to exercisethe statutory power to write off the costs.27 Mr Ewen submits the appellant should nothave to bear the cost of clarifying an important point of interpretation of the Act.Counsel for the Secretary of Justice had no objection to our making an indication tothat effect.[58] We agree it is appropriate to indicate it would be unfair for the appellant to footthe bill in these circumstances.Result[59] The appeal is allowed. The award of $5,000 to the respondent made by theVictims' Special Claims Tribunal is set aside.27 Legal Services Act 2011, s 43(1)(c).WILLIAMS AND KÓS JJ[60] We accept the text of the Prisoners' and Victims' Claims Act 2005 (the Act)compels the conclusion reached by the majority. Any prisoner,28 whether an accusedperson or a convicted offender, can bring a claim against the Crown under the Act.However, due to s 28(1)(b), the Victims' Special Claims Tribunal must be able to pointto a convicted offender before a victim is entitled to file a claim. So, Parliament wellappreciated the distinction between remand detainees and sentenced prisoners when itestablished the alternative Tribunal claim system for victims and altered the ordinarylimitation rules that would otherwise have applied to their claims. It is clear s 64suspends any limitation period only after the prisoner is convicted of the relevantoffence and while serving a prison sentence for that offending or any other earliersentence on which the prison sentence is directed to be served cumulatively or latersentence that is directed to be served cumulatively on it.29 To import (and repurpose)s 90 of the Parole Act 2002 into the Prisoners' and Victims' Claim Act would amendthat architecture and so is impermissible by mere implication.[61] We therefore concur in the result, but wish to add some observations on theeffect of the legislation. It has some peculiar consequences that might justifyParliamentary reconsideration.[62] We start by noting that the exact policy objective of Parliament in using theAct to modify limitation periods is very difficult to infer. It seems best found in theexplanatory note to the Prisoners' and Victims' Claims Bill 2004:30It is often futile to contemplate proceedings while the offender is in prison; bythe time he or she is released, the normal limitation period of 6 years may haveexpired. For victims of offenders sentenced to prison, the Bill overcomes thisdifficulty by providing that the period ceases to run while the offender is inprison.28 Under s 6(1) of the Prisoners' and Victims' Claims Act 2005, a "specified claim" may be made bya "person under control or supervision" which, by virtue of s 4, includes a "prisoner". A prisoner,in turn, includes any person (who is not a service detainee or a service prisoner) for the time beingin legal custody under the Corrections Act 2004.29 Prisoners' and Victims' Claims Act 2005, ss 5(1)(a) and 64(2)(a). The other sentences madecumulative with that for the offending against the victim need not themselves have involved thesame victim.30 Prisoners' and Victims' Claims Bill 2004 (241-1) (explanatory note) at 4.However, to state the obvious, the practical futility of bringing proceedings is identicalwhether the defendant is in prison on remand, or in prison as a sentenced prisoner.That reality underlay the conclusions reached in the Courts below.[63] Although the Minister of Justice suggested in Parliament that the limitationperiod would be suspended whenever the offender was in prison,31 the words adoptedcannot bear that meaning. It is only time served under the sentence relating to theoffending against the victim that stops the clock (along with other earlier or latersentences made cumulative with it).32[64] So, s 64 has the effect of modifying limitations for the underlying claim againstthe offender. In the present case, that was a claim for emotional harm arising from anarmed assault, to which a six-year limitation period applies. The Act presents thevictim with a procedural choice. The victim may bring the claim in the courts, or inthe Tribunal created by the Act. But there is an election; only one route may beadopted. If, knowing there are funds held on trust that may be accessed, the victimchooses the simple, cheap Tribunal procedure,33 any claim already made in the courtsmust be discontinued.34 And, as noted earlier, the Tribunal claim may only be broughtafter the defendant has the status of "offender" (i.e. has been convicted) and the victimhas received notice that a payment has been received by the offender which is beingheld in trust.35 Here, by the time the respondent received the notice his underlyingclaim was already out of time.36[65] Sections 64A and 64B37 then create a further suspension of time for claimsmade via the Tribunal: where a claim is made against prisoners' money held by theSecretary for Justice, limitation periods "cease to run" until the statutory deadlineexpires.38 That is when the clock restarts if no claim has been filed. But when would31 See (14 December 2004) 622 NZPD 17988; and (12 May 2005) 625 NZPD 20556.32 Sections 5(1)(a) and 64.33 For instance, s 29 provides that no filing fees are payable.34 Section 28(1)(c).35 Section 28(1)(a) and (b).36 Time expired on 21 March 2019, being six years after the assault plus the 985 days he spent inprison as a sentenced prisoner for that offence.37 Inserted by s 13 of the Prisoners' and Victims' Claims (Continuation and Reform) AmendmentAct 2013.38 Section 28(3) sets the standard statutory deadline which is generally six months after the sendingdate of the notice.it have stopped? One view is that it stops on the receipt of money by the Secretaryunder s 17. That at least seems to be what the relevant select committee thought wasintended when the 2013 amendments were made.39 A second view is that it stops onnotice being given.40 A third view is that it only stops when the subject of the claimhas become an "offender", as s 64A(b) perhaps hints at.[66] A potential problem with s 28 and one that affects all three interpretationsabove is that, although notice can be given where the perpetrator is still only anaccused person, the victim cannot then file a claim until the accused becomes an"offender" upon conviction. Changing from an accused to an offender may wellhappen more than six months after notice is given, so time then would restart before aqualifying claim could be made and potentially count it out—a course inviting theaccused/offender to game the criminal justice system in order to keep the money.41[67] Apart from these difficulties, the limitation period continues to run against thevictim where the defendant is incarcerated on remand until a sentence of imprisonmentis imposed.42 This has some odd effects.[68] First, as the Courts below noted, the post-sentence period of imprisonmentmight be very short indeed. Potentially no time at all, if the whole sentence is alreadytime served as is rather too often the position given post-COVID backlogs.43 In sucha case the limitation clock never stops,44 despite what may be a substantial period spentby the offender in prison (on remand) where, in substance, they are servingpre-emptively, the sentence eventually imposed.[69] Secondly, it also has the curious outcome that where there are twoindistinguishable co-offenders, one of whom pleads guilty early, the other remanded39 The Justice and Electoral Committee noted the amendment "would also clarify that the Act would suspend the civil limitation period for victims' claims when compensation was paid to theSecretary for Justice, recommencing following the deadline for victims to file a claim against thecompensation": Prisoners' and Victims' Claims (Continuation and Reform) Amendment Bill 2013(92-1) (select committee report) at 2.40 The Court of Appeal considered this second approach the correct one: Van Silfhoutv Pathirannehelage [2023] NZCA 5 (Miller, Brown and Katz JJ) at [5], n 5.41 Though we note s 28(4) allows the Tribunal to extend the deadline for a claim to be filed.42 Subject to s 64B, which we have just discussed.43 Because of s 90 of the Parole Act 2002, discussed above at [44].44 With the potential exception of the application of ss 64A and 64B.in custody, limitations would run differently as between them. This would be despitethe fact that, guilty-plea credit apart, their sentences would be identical and they wouldhave both been incarcerated since the date of arrest.[70] Thirdly, where neither co-offender pleads guilty, but one is remanded on bail,and the other is remanded in custody, again limitations run differently. The offenderremanded in custody will serve a shorter-duration sentence post-sentencing (becauseof the s 90 credit of time served), and the suspension of time for the victim to claimagainst them would be commensurately shorter.[71] Fourthly, consider the position where the accused pleads guilty in relation tosome victims but not guilty in relation to others (as can occur in historic sex offendingcases) and is remanded in custody. Limitations would run differently even if theaccused were eventually convicted at trial on the not guilty pleas. That would also bethe position in the case of multiple defendants in relation to offending against a singlevictim if some defendants entered guilty pleas and others did not. We see no goodreason to distinguish between these differently situated victims for limitationpurposes.[72] Fifthly, we record counsel assisting's acknowledgement that s 64 is silent onthe subject of concurrent sentencing. Where sentencing is concurrent, a lead offenceis identified and its sentence is uplifted to reflect the totality of the offending beingsentenced. Non-lead offences then receive shorter concurrent sentences. The victimof a non-lead offence will find the limitation period for their claim restarts as soon asthat shorter sentence is completed, despite the offender remaining in prison on the leadoffence sentence. If that is the case, it seems illogical.Solicitors:Amanda Hill Law, Lower Hutt for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington as counsel assisting the Court