CHISNALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 248

CHISNALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZCA 248 [13 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA141/2017[2017] NZCA 248BETWEEN MARK DAVID CHISNALLAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 4 May 2017Court: Miller, Gilbert and Katz JJCounsel: T Ellis and G K Edgeler for AppellantRMA McCoubrey and S A Wilson for RespondentJudgment: 13 June 2017 at 2.00 pmJUDGMENT OF THE COURTA The appeal is allowed in part. We direct that Dr Barry-Walsh prepare an assessment report on Mr Chisnall pursuant to s 10(1) of the Public Safety (Public Protection Orders) Act 2014.B The appeal is otherwise dismissed.C Costs are to lie where they fall.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Mark David Chisnall appeals against a decision of Wylie J regarding the correct interpretation of s 10 of the Public Safety (Public Protection Orders) Act 2014 (PPO Act).1 His appeal raises the following question of law:When a respondent to an application for a Public Protection Order ("PPO")is not legally aided, and they request a health assessor of their choosing to assess them, are the fees and expenses of that assessment report met out of public money appropriated by Parliament for the purpose?[2] Mr Chisnall submits that Wylie J erred in concluding that the answer to thisquestion is "no". The Chief Executive of the Department of Corrections(Corrections) submits that Wylie J's decision was correct, and that the appeal shouldbe dismissed.Background[3] Corrections has filed an application in the High Court seeking the imposition of a public protection order (PPO) or, in the alternative, an extended supervision order (ESO) on Mr Chisnall.2 The PPO Act empowers the High Court to make a PPO to detain a person in a secure civil facility (usually within prison precincts) if,3at the end of a finite prison sentence, they still pose a very high risk of imminent and serious sexual or violent reoffending.4 Corrections asserts that Mr Chisnall meets those criteria.[4] Mr Chisnall opposes both applications. He has engaged Mr Ellis as his counsel. Although Mr Chisnall would almost certainly be eligible for legal aid if he applied for it, he has elected not to do so. Rather, Mr Ellis has agreed to act for him on a pro bono basis. Mr Ellis informed us, in essence, that it is simply not worth the time and trouble of applying for civil legal aid in respect of the PPO and ESO applications, because the legal aid payments he would receive would be minimal.1 Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 256.2 Extended supervision orders are made pursuant to s 107F of the Parole Act 2002.3 Detention residences are established pursuant to s 114 of the Public Safety (Public Protection Orders) Act 2014 (PPO Act), which specifies that any building located in prison precincts (or any part of that building) and any land adjacent to that building may be declared a residence.4 PPO Act, s 13.Although Mr Chisnall could possibly find another lawyer to act for him on a legally aided basis, he wishes to have counsel of his choice (namely Mr Ellis).[5] When considering whether to make a PPO the Court is required to consider all of the evidence offered in the proceeding and, in particular, the evidence given by two or more health assessors (including at least one registered psychologist).5[6] Corrections has provided three health assessor reports to assist the Court, as required by the PPO Act and the Parole Act 2002.6[7] A respondent to a PPO application is entitled to request a health assessor selected by the respondent to assess him or her.7 Mr Chisnall filed a memorandum in the High Court requesting that a health assessor selected by him, Dr Justin Barry-Walsh, assess him and prepare a report for the purposes of the PPO hearing. He advised that the request was made pursuant to s 10(2) of the PPO Act. He further requested that the costs of Dr Barry-Walsh's report be met out of publicfunds, pursuant to s 10(6) of the PPO Act.[8] The issue was considered at a teleconference before Wylie J on 23 February 2017. At issue was the correct interpretation of s 10 of the PPO Act, which provides as follows:10 Right to independent expert assessment(1) The court may, on its own initiative, direct a health assessor selected by the court to assess the respondent.(2) The respondent may request a health assessor selected by the respondent to assess the respondent.(3) A health assessor who assesses a respondent in accordance with adirection or request under this section must prepare a report that addresses the questions stated in section 9(b).(4) The report may also comment on the reports of health assessors that the chief executive has served on the respondent.5 Section 13(1).6 PPO Act, s 9; and Parole Act, s 107F(2). Two reports were prepared in support of the PPO application and one in support of the ESO application.7 PPO Act, s 10(2).(5) Where the respondent has been granted legal aid for responding to the application for the public protection order, the fees and expenses of preparing the assessment report under this section must be met out of the grant of legal aid.(6) Where the court directs a health assessor under this section in a case where the respondent has not been granted legal aid, the fees and expenses of preparing the assessment report must be met out of public money appropriated by Parliament for the purpose.(Emphasis added.)[9] Wylie J declined to direct that the costs of Dr Barry-Walsh's assessment bemet out of public funds.8 He did not consider that s 10(6) applied to a healthassessor's report requested by a respondent under s 10(2). Accordingly, the costs of any assessment report prepared by Dr Barry-Walsh, at Mr Chisnall's request, are notrequired to be met out of public funds. Had Mr Chisnall applied for legal aid, and had that application been approved, s 10(5) would have applied. However, s 10(6) is confined to situations where the Court has directed a health assessor's report unders 10(1) and not situations where a respondent has requested a health assessor under s 10(2).9[10] Wylie J concluded that if a respondent requests a particular health assessor to assess them, the requested report must be funded by the respondent if there is no grant of legal aid, and by the legal aid authorities if there is a grant of legal aid. In reaching this conclusion, Wylie J referred to and agreed with the recent decision of Nation J in Chief Executive of the Department of Corrections v Kerr.10Mr Chisnall's interpretation of s 10[11] Mr Ellis submits that Mr Chisnall should not be disadvantaged by his choice to be represented on a pro bono basis, rather than by a lawyer acting on legal aid. He submits that s 10 can (and should) be interpreted in such a way as to ensure that the report of Mr Chisnall's selected health assessor is funded out of public money.[12] In particular, Mr Ellis submits that the right to funding to obtain an independent report is not restricted to those who are impecunious. Rather, a8 Chief Executive of the Department of Corrections v Chisnall, above n 1, at [9]–[10].9 At [9].10 Chief Executive of the Department of Corrections v Kerr [2017] NZHC 139.respondent is entitled to funding of an assessment report by an assessor of their choice as of right. On his analysis, the correct interpretation of s 10 is that when a respondent is legally aided, legal aid will cover the relevant fees and expenses, pursuant to s 10(5); and where a respondent is not legally aided, the relevant expenses will be paid out of public money appropriated for that purpose, pursuant to s 10(6). In either event, the costs of the preparation of a report by a health assessor selected by the respondent will be met by public funds.[13] Such an interpretation is consistent, Mr Ellis submits, with the importance of the rights at stake. A PPO enables the ongoing civil detention of a person who has completed their sentence, possibly indefinitely. Clearly, this is a very significant intrusion on individual liberty. It is therefore of critical importance that a respondent opposing such an order is able to exercise the right Parliament has conferred on them, pursuant to s 10, of having a health assessor of their own choosing prepare a report for the purposes of the PPO hearing.[14] Mr Ellis submits that, in crafting s 10, Parliament has recognised the need forthere to be an "equality of arms" between Corrections and a respondent. He notedthat the concept of equality of arms was recognised by Anderson J in Hansen v R11and has also been recognised by the European Court of Human Rights, for example in Ilijkov v Bulgaria.12 Wylie J's interpretation of s 10, Mr Ellis submits,undermines the principle of equality of arms and would potentially prevent Mr Chisnall from being able to exercise the important right conferred on him by s 10, namely the entitlement to have a report prepared by a health assessor of his choosing.Did the Judge err in his interpretation of s 10?[15] Mr McCoubrey submits, on behalf of Corrections, that s 10 clearlycontemplates a distinction between a "direction" by the Court and a "request" by therespondent. We accept that submission.11 Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 at [280].12 Ilijkov v Bulgaria (33977/96) Section IV, ECHR 26 July 2001 at [103].[16] Section 10(1) refers to the power of the Court to "direct" an assessor selectedby the Court to assess a respondent. Section 10(2), on the other hand, refers to theright of a respondent to "request" an assessor of his or her own choosing to undertake an assessment. Of note, no court intervention is required to facilitate such a request, or to approve the particular assessor selected by the respondent. Rather, the relevant request is made directly to the health assessor. The PPO Act strictly limits the categories of persons who may be engaged to prepare assessment reports,however, by limiting the definition of "health assessor" to practising psychiatrists13and registered psychologists.14[17] Section 10(3) refers to both a "direction [by the Court] or a request [to ahealth assessor] under this section". This clearly indicates Parliament'sunderstanding that they are two different events, and reinforces a distinction betweenreports that are "directed" (by the Court) and those that are "requested" (by arespondent).[18] If legal aid has been granted, then pursuant to s 10(5) the costs of preparingany health assessor's report under s 10 (whether directed by the Court or requestedby the respondent) are to be met out of the grant of legal aid.[19] If legal aid has not been granted and the Court has directed a health assessor'sreport (under s 10(1)), then s 10(6) applies. In such circumstances the costs ofpreparing the health assessor's report are to be met out of public funds allocated for that purpose.[20] Wylie J was therefore correct to conclude that ss 10(2) and 10(6) are not connected. If the respondent seeks to have a health assessor of his choosing appointed under s 10(2) then s 10(5) may be engaged, but only if the respondent is legally aided. Section 10(6), however, is only engaged where the Court directs a health assessor to prepare an assessment report. Dr Barry-Walsh has not been13 A practising psychiatrist must be (or must be deemed to be) registered with the Medical Council of New Zealand as a practitioner of the profession of medicine: PPO Act, s 3 definition of"health assessor".14 A registered psychologist is a health practitioner who is (or is deemed to be) registered with the Psychologists Board as a practitioner of the profession of psychology: s 3 definition of"registered psychologist".directed by the Court to prepare an assessment report. Rather, Mr Chisnall wished to request him to prepare an assessment report.[21] To the extent that the principle of equality of arms has any relevance here,15 it is clear that Parliament has provided a mechanism to protect the entitlement of impecunious respondents to have an assessment report prepared by a health assessor of their choosing. In particular, he or she will be entitled to a grant of legal aid, through which such an assessment will be funded as a pre-approved disbursement, as of right. Indeed an application for legal aid to oppose an application for a PPO is a"specified application" under the Legal Services Act 2011.16 As a result, a grant of legal aid is significantly easier to access, and subject to less qualifications or restrictions, than would normally be the case.17[22] The legal aid system is the manner in which Parliament has chosen to fund the costs of criminal and civil litigation for impecunious litigants, including in a PPO context. Mr Chisnall, however, has chosen not to avail himself of this statutory mechanism for funding, for the reasons we have set out at [4] above.[23] If Parliament had intended to make public funding available for a healthassessor's report prepared at the request of the respondent irrespective of whetherlegal aid has been granted, there would have been little point in distinguishing "legal aid" from "public money" in s 10. The intended result could have been achieved ina much more straightforward way by omitting the costs of preparing an assessment report from the legal aid scheme altogether, and simply providing that all health assessor reports, including those from health assessors chosen by respondents, are tobe funded by "public money appropriated by Parliament for the purpose".15 We note that the notion that there must be an equality of arms has been developed very cautiously in New Zealand. Andrew Butler and Petra Butler observe that: "invocation ofconcepts such as "equality of arms" must be treated carefully. The essence of that concept is not that there be a "tit for tat" analysis but rather that, when looked at as a whole and against thebackdrop of the different roles and interests of the prosecution and the accused, the accused isgiven a "fair go" at his or her defence". Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [22.6.12]. See alsoBrown v Attorney-General [2003] 3 NZLR 335 (HC) at [64].16 Legal Services Act 2011, s 4 definition of "specified application".17 See for example the relaxing of the requirements of the Legal Services Act for specified applications, in ss 10(2A) and 18(7)(a).[24] For the reasons outlined, we reject Mr Ellis's submission that funding of a report is available to a respondent as of right irrespective of their degree of impecuniousness. Section 10 draws a clear distinction between reports directed by the Court and reports requested by a respondent. In respect of reports requested by a respondent, s 10 only envisages an entitlement to public funding where a respondent is legally aided.[25] Wylie J accordingly did not err in his interpretation of s 10. The answer tothe question on appeal, set out at [1] above, is "no".Should this Court direct that Dr Barry-Walsh prepare a report?[26] A further issue arose during the course of oral argument before us. Inparticular Mr Ellis requested that, if we concluded that Wylie J's interpretation ofs 10 is correct, we direct the preparation of an assessment report by Dr Barry-Walsh, pursuant to s 10(1) of the PPO Act.[27] Mr Ellis does not appear to have formally requested Wylie J to direct the preparation of such a report, due to his understanding that s 10 provided for the funding of such a report in any event. We have concluded that Mr Ellis was wrongin that assumption. Wylie J's interpretation of s 10 was correct.[28] We note, however, that Wylie J was asked to direct the appointment of Dr Sabina Visser to report on a fairly narrow issue relating to Mr Chisnall's allegedintellectual disability. That direction was made at the request of Mr Chisnall. Dr Visser's report will accordingly be publicly funded pursuant to s 10(6). Mr Ellisrequests that we now make a similar direction in relation to the preparation of a report by Dr Barry-Walsh, a forensic psychiatrist who is to undertake the risk assessment contemplated by the Act.[29] Mr McCoubrey opposed such a course. He submitted that if the Court made such a direction it would, in effect, be circumventing the intention of Parliament that only those who have received a grant of legal aid are entitled to funding for an assessment report prepared by a health assessor of their choosing.[30] The circumstances of this case are unusual. Parliament clearly envisaged that impecunious respondents would seek legal aid. It reduced the barriers to obtaining legal aid to facilitate such a course. This reflects the extremely high stakes for respondents to an application for a PPO. They have completed their finite prison sentence and yet face the prospect of ongoing civil detention, in a secure facility within prison grounds, in the interests of public safety. The objective of a PPO is not to further punish an offender, but to protect the public.18 In achieving this objective, however, PPOs necessarily place severe constraints on the liberty of persons subject to them. PPOs are recognised as exceptional. They can only be made where there is a very high risk of imminent and serious sexual or violent reoffending. Reports from health assessors are critical to the Court's risk assessment exercise.[31] It is not in dispute that in the circumstances of this case a further healthassessor's report is appropriate, or that Dr Barry-Walsh is well qualified to prepare it.Dr Visser's report is narrow in scope, and we are satisfied that a report from Dr Barry-Walsh is likely to assist the High Court in its assessment of risk.[32] It is also appropriate, Mr Chisnall being impecunious, that the cost of the report should be met from the public purse. The Court cannot endorse his counsel's decision to reject legal aid, but in Mr Chisnall's interests it can adopt the pragmaticsolution of appointing Dr Barry-Walsh itself. Wylie J was not asked to do this, apparently because the matter was argued at short notice during a telephone conference and counsel mistakenly assumed that only one respondent's expert couldbe appointed. (As noted, Dr Visser had been nominated by Mr Chisnall to inquire into intellectual disability.)[33] In the ordinary way, the hearing below having miscarried somewhat, we would remit the matter back to the Judge to consider whether to appoint a furtherexpert. However, given that it is not in dispute that a further health assessor's reportis appropriate, or that Dr Barry-Walsh is well qualified to prepare it, we think that the sensible course is to make the appointment ourselves.18 PPO Act, s 4.Result[34] The appeal is dismissed to the extent that it challenged Wylie J'sinterpretation of s 10 of the PPO Act. That interpretation was correct.[35] The appeal is allowed in part, in that we make an order pursuant to s 10(1) of the PPO Act directing that Dr Barry-Walsh prepare an assessment report on Mr Chisnall (assuming that he is willing and able to do so). Any such report is to be funded from public money, pursuant to s 10(6) of the PPO Act.Costs[36] The primary focus of the hearing before us was whether Wylie J'sinterpretation of s 10 of the PPO Act was correct. We have found that it was. Corrections advised, however, that it did not seek an award of costs in the event that it was successful on that issue, or in the appeal generally. We accordingly direct that costs lie where they fall.Solicitors:Francis Handy, Wellington for AppellantMeredith Connell, Auckland for Respondent