CHISNALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZCA 402 [26 August 2022]

CHISNALL v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2022] NZCA 402[26 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA88/2021[2022] NZCA 402BETWEEN MARK DAVID CHISNALLAppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 7 April 2022Court: Clifford, Gilbert and Courtney JJCounsel: A J Ellis and G K Edgeler for AppellantM J McKillop for RespondentJudgment: 26 August 2022 at 10.30 amJUDGMENT OF THE COURTA The application for leave to adduce further evidence is granted.B The appeal is allowed.C The public protection order is cancelled and the Chief Executive'sapplication for that order is finally determined.D The Chief Executive's application for an extended supervision order withintensive monitoring is remitted to the High Court for determination.E We exercise our powers as High Court judges to impose under s 107FA ofthe Parole Act 2002 an interim supervision order, pending determination bythe High Court of the application for an extended supervision order withintensive monitoring, on the terms set out in the Chief Executive'soriginating application dated 15 April 2016, including the interim specialconditions sought at para 5.7(a)–(m) of that application.F The respondent must pay the appellant costs for a standard appeal on aband A basis and usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] On 27 January 2021, Gordon J in the High Court at Auckland grantedthe respondent Chief Executive's application under s 8 of the Public Safety (PublicProtection Orders) Act 2014 (the Public Safety Act) for a public protection order(PPO) against the appellant, Mr Chisnall.1 In doing so the Court rejected thealternative possibility of making an extended supervision order (ESO) with intensivemonitoring for a maximum period of one year (IM ESO) under s 107I of theParole Act 2002.2 Mr Chisnall now appeals.[2] Although in form Mr Chisnall challenges all aspects of the High Courtdecision, in substance and as we explain below, the appeal is directed at the Court'sdecision declining to make an IM ESO as an alternative to a PPO.Background[3] In March 2006 Mr Chisnall was sentenced to eight years' imprisonment on asingle charge of rape.3 Whilst serving that term of imprisonment Mr Chisnall wassentenced to a cumulative term of three years' imprisonment for an earlier rape.4On 15 April 2016, shortly before Mr Chisnall's final sentences of imprisonment forthat offending were to end, the Chief Executive applied for a PPO or alternatively anIM ESO against Mr Chisnall and for interim orders. Interim orders were granted bythe High Court on 22 April 2016.5 Mr Chisnall's challenges to those interim orders1 Chief Executive of the Department of Corrections v Chisnall [2021] NZHC 32 [Judgment underappeal].2 At [248].3 R v Chisnall HC Whanganui CRI-2005-083-806, 29 March 2006.4 R v Chisnall DC New Plymouth CRI-2008-021-527, 31 July 2009.5 Chief Executive of the Department of Corrections v Chisnall [2016] NZHC 796 [Interim detentionorder (HC)].were dismissed by this Court in December 20166 and by the Supreme Court inAugust 2017.7[4] Then, in December 2017 the High Court granted the Chief Executive'ssubstantive application for a PPO.8 Mr Chisnall appealed that decision to this Court.This Court allowed that appeal in October 2019 (the CA PPO appeal).9 The Court wassatisfied the High Court had been right to conclude the statutory pre-conditions forthe making of a PPO had been established by the Chief Executive. But, this Courtconcluded, the High Court had erred in the way it had considered the possibility of anIM ESO as an alternative. The Chief Executive's application was remitted tothe High Court to be reconsidered.[5] That approach was consistent with the Supreme Court's 2017 decision in whichElias CJ, with whom the majority agreed, held that in making either an interimdetention order or a substantive PPO it was necessary for the court to consider the leastintrusive means of managing any risk posed by the person in respect of whom theorder was sought.10 In these circumstances, and as the High Court has recognisedfrom the outset, that involves consideration of an IM ESO.[6] In the CA PPO appeal this Court summarised relevant aspects of the PPO andESO regimes in the following terms:11[5] Offenders released from prison on parole are automatically subject tostandard parole release conditions. They may also be made subject to specialparole release conditions by order of the Parole Board. Special conditionsimpose further restrictions on the person's liberty. Those conditions may onlyremain in force up to six months after the offender's statutory release date,generally the last day of the full term of the offender's sentence ofimprisonment.[6] PPOs and ESOs are made, on the application of the Chief Executive,by the High Court. ESOs may also be made by the District Court, again onthe Chief Executive's application. They may, in general terms, be imposed on6 Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 [Interim detentionorder (CA)].7 Chisnall v Chief Executive of the Department of Corrections [2017] NZSC 114, [2018] 1 NZLR 83[Interim detention order (SC)].8 The Chief Executive of the Department of Corrections v Chisnall [2017] NZHC 3120.9 Chisnall v Chief Executive of the Department of Corrections [2019] NZCA 510 [CA PPO appeal].10 Interim detention order (SC), above n 7, at [37]–[40] per Elias CJ; and at [83] per William Young,Glazebrook, O'Regan and Ellen France JJ.11 CA PPO appeal, above n 9 (footnotes omitted).eligible offenders who will complete the full period of their finite term ofimprisonment for a serious sexual or violent offence and who are, therefore,not able to be made subject to parole release conditions long term.The primary purpose of both orders is to protect the community from what theChief Executive must establish is the very high or high risk of sexual or violentreoffending by an eligible offender. The Chief Executive establishes that riskby demonstrating to the Court that the eligible offender demonstrates a rangeof specific characteristics.[7] Both PPOs and ESOs, amongst other things, impose restrictions onwhere the offender must reside, and their freedom of movement. A PPO ismore restrictive than an ESO. That is, in summary:(a) A person subject to a PPO must stay in specially designatedbuildings and adjacent land (residences) located in prisonprecincts. Such persons, known as residents, are in the legalcustody of the Chief Executive and are subject to a range ofongoing restrictions and rules set out in the Public Safety Act.There is no time limit to the period for which a PPO mayapply. Such orders must, however, be reviewed on an annualbasis by the review panel constituted under the Public SafetyAct, and every five years by the High Court, on the mandatoryapplication of the Chief Executive.(b) A person subject to an ESO is, just like an offender releasedon parole, subject to a range of standard conditions.The standard conditions place a person under the supervisionof a probation officer and require residence at an approvedresidential address. The Parole Board has power to imposespecial conditions on the same terms as it may do so by wayof special parole release conditions, such as electronicmonitoring. In addition, the Chief Executive, when applyingfor the imposition of an ESO, may also apply to the sentencingcourt for an order that it impose what is known as an intensivemonitoring condition on the offender. Such a conditionrequires the offender to submit to being accompanied andmonitored for up to 24 hours a day. ESOs have a maximumterm of 10 years. An intensive monitoring condition may onlybe imposed during the first 12 months of an ESO.[7] In allowing Mr Chisnall's appeal the Court noted the effect of its judgment wasthat, pending reconsideration, Mr Chisnall remained subject to the interim ordersupheld in the Supreme Court.12[8] In that reconsideration, a procedural issue arose. As Gordon J put it,the provisions of s 107GAA of the Parole Act "sit rather awkwardly" with theapproach the Court is required to adopt when hearing an application for a PPO.1312 At [68] and [72], referring to Interim detention order (HC), above n 5.13 Judgment under appeal, above n 1, at [11].[9] Section 107GAA provides:107GAA Procedure where hearing contingent on outcome of PPOapplication(1) This section applies to an application for an extended supervisionorder made in respect of an eligible offender who is also the subjectof a PPO application that has not been determined or withdrawn.(2) For an application to which this section applies,—(a) the sentencing court is (despite anything in section 107D)the High Court; and(b) the sentencing court must not hear the application until—(i) the proceeding on the PPO application has beencompleted and the court has declined to make a publicprotection order against the offender; or(ii) the PPO application has been withdrawn; or(iii) the public protection order made against the offenderhas been cancelled as a result of a successful appealagainst the order; and(c) the notice given under section 107G(1)(d) must inform theoffender of the effect of this provision.(3) The application is taken to be withdrawn if the court has made a publicprotection order against the offender and all avenues for appeal areexhausted or the period in which an appeal may be filed expires.(4) Where the court has declined to make a public protection order andthe court proceeds to hear the application for an extended supervisionorder, that application must, if practicable, be heard by the same Judgethat heard the PPO application.(5) In this section, PPO application means an application for a publicprotection order under section 8 of the Public Safety (PublicProtection Orders) Act 2014.[10] Elias CJ explained:14[17] Section 107GAA of the Parole Act makes it clear that it is the publicprotection order application that has priority of consideration where it isapplied for. If a public protection order application has not been determinedor withdrawn, the court "must not hear" the application for extendedsupervision order until the public protection order application hasbeen declined. Until then, the hearing of the extended supervision orderapplication is "contingent"[.]14 Interim detention order (SC), above n 7.[11] The then Chief Justice's statement that until the PPO application has beendeclined, the hearing of the extended supervision order application is "contingent"suggests that both such applications would be considered at a single hearing, thesecond application being contingent on the decision on the first. That would appearto have been the understanding of the Chief Executive at the time of the originalapplication as regards Mr Chisnall in April 2016.[12] It is also to be noted that the Supreme Court's decision on this point hasthe effect of requiring consideration of an IM ESO alternative whenever a PPO issought, whether or not the Chief Executive applies for one in the alternative.[13] As reflected in the decision of Gordon J, counsel for Mr Chisnall and theChief Executive provided written submissions on the basis both matters would bedetermined in a single hearing, as envisaged by the Chief Justice's "contingent"approach. At the hearing, however, a different approach emerged. The Judgerecords:15In oral submissions both Mr Tantrum, for the Chief Executive, and Mr Ellis,for Mr Chisnall, agreed with my view that I could not hear submissions on theESO application at the hearing.[14] That view, we note, responds to the very clear wording of s 107GAA(2)(b)(i)of the Parole Act.[15] Given the need for the Court to always consider less restrictive alternativesbefore making a PPO, in our view that approach may, notwithstanding the expresswords of the statute, be somewhat artificial. However, the way Gordon J in fact didconsider an IM ESO alternative in her judgment means we need not take thatpoint further. As the Judge explained:16However, having regard to Mr Chisnall's position that he would consent to anESO with an intensive monitoring condition and with interim conditions asproposed by the Chief Executive (save for an amendment to one condition),it was agreed that any hearing on the ESO application, should I decline tomake a PPO, would be very short. As noted the Chief Executive relies onthe same evidence for both applications. It seemed likely that the only issuebetween the parties would be the length of the term of any ESO.15 Judgment under appeal, above n 1, at [10].16 At [10].[16] Accordingly, the High Court considered all aspects of the Chief Executive'ssubstantive application, including issues associated with the statutory pre-conditions.The Court concluded, again, that the pre-conditions for the making of a PPO hadbeen established.17 The Court then separately considered whether an IM ESOalternative was the appropriate option, concluding it was not.18[17] Finally, after the High Court hearing and judgment, but before this appeal washeard, this Court allowed Mr Chisnall's appeal regarding his application fordeclarations that the PPO and ESO regimes are inconsistent with the New ZealandBill of Rights Act 1990 (NZBORA).19 This Court made the following declarations:20A Part 1A of the Parole Act 2002 is inconsistent with s 26(2) of theNew Zealand Bill of Rights Act 1990, and that inconsistency has notbeen justified under s 5 of that Act.B The Public Safety (Public Protection Orders) Act 2014 is inconsistentwith s 26(2) of the New Zealand Bill of Rights Act 1990, and thatinconsistency has not been justified under s 5 of that Act.[18] In considering this appeal, we need to consider the significance ofthe declarations of inconsistency made by this Court. The submission made forMr Chisnall was that the "rights" implications of those declarations called for a newapproach. In making its declarations the Court in essence reasoned that the ordersmade under both the ESO and PPO regimes were penalties and therefore the regimesimposed limitations on the prescription on second penalties affirmed in s 26(2) ofNZBORA. On the question of justification, the Court found:21[217] We consider the limited legislative fact material to which we havebeen referred demonstrates that both the ESO and PPO regimes were designedto deal with the important objective of public protection from persons likelyin future to commit serious criminal offences. We accept also that the regimesare rationally connected with that purpose. But the importance of the s 26(2)right requires greater justification before it can be accepted that either regimeis demonstrably justified in a free and democratic society, having regard tothe need to establish both proportionality and minimum impairment of theright for achieving the purpose.17 At [25], [188], and [231].18 At [233]–[248].19 Chisnall v Attorney-General [2021] NZCA 616, [2022] 2 NZLR 484 [Declarations decision (CA)].20 Chisnall v Attorney-General [2022] NZCA 24 at [3]–[4].21 Declarations decision (CA), above n 19.[219] For the ESO and PPO regimes to be justified under s 5, there wouldneed to be a substantial showing by appropriate affidavit evidence thatthe regimes are justified as a minimum and necessary response to the potentialharm caused by those against whom such orders would be made.[19] In making those declarations the Court also emphasised:[226] What this case is about is whether the legislative response in the formof the ESO and PPO regimes is inconsistent with the Bill of Rights Act.To establish that required evidence about the basis on which the legislativechoices were made such as would provide and submit to scrutiny the rationaljustification for the measures. This would enable the Court to assessthe proportionality of the measures; whether a "justified end is achieved byproportionate means". Without such evidence, we have not been able to findthat the regimes are demonstrably justified under s 5 of the Bill of Rights Act.(Footnote omitted.)[20] In reaching its conclusions, the Court considered the significance that thelegislation might be applied in a "rights-compliant way". It said:[220] We do not consider it is an adequate response to say, in assessingwhether the limits on the right contained in the legislation have beendemonstrably justified, that orders will not be made in individual caseswithout a full assessment by judicial officers. In essence, that reduces the s 5analysis to a case by case consideration without asking the essential questionof whether the ESO and PPO regimes represent reasonable limits of thes 26(2) right. That is the question raised by s 3 of the Bill of Rights Act whichapplies the Act's provisions to acts done by the legislative branch ofgovernment, as well as the other branches. To say the Acts may be able to beapplied in a rights-compliant way does not answer the central question, whichis whether the relevant provisions of the Parole Act and the PS (PPO) Actdelineate regimes that limit rights in a way, and to an extent, that has beendemonstrably justified.[21] The Supreme Court granted the Chief Executive leave to appeal that decision.22That appeal is set down for hearing in October 2022.[22] In that context, we do not accept the submission for Mr Chisnall. Our task isto consider this appeal on the terms of the legislation as it stands. That is not to say,however, that we should not give that legislation as "rights-compliant" aninterpretation and application as within its terms are available.[23] Against that background, when this appeal was heard:22 Attorney-General v Chisnall [2022] NZSC 77.(a) Mr Chisnall had the benefit of the declarations of inconsistency madeby this Court. Those declarations were made on the basis of the Court'sconsideration and acceptance of many of Mr Chisnall's human rightschallenges to the PPO and ESO regimes which, throughout theseproceedings, have been advanced by Mr Ellis.(b) Mr Chisnall maintained his position of consenting to the making of anIM ESO alternative order.[24] It was with reference to those circumstances that counsel for Mr Chisnallrealistically acknowledged the focus of this appeal was what the High Court hadtermed the "discretion" to make an IM ESO alternative,23 rather than the considerablybroader arguments for Mr Chisnall focusing on overall NZBORA inconsistency.That approach also responded to the implications of Mr Chisnall:(a) accepting, as he has throughout these proceedings, that in terms ofthe Public Safety Act the s 7 threshold and the s 13(2) preconditions forthe making of a PPO are established; but(b) challenging the conclusion he is a "very high risk of imminent serioussexual offending" in terms of s 13(1)(b) of that Act.[25] That submission is possible because the preconditions in s 13(2) are necessarybut not automatically sufficient requirements for a court to be satisfied the riskthreshold in s 13(1)(b) is met. In that context Mr Chisnall accepts he presents ahigh risk of, but not a very high risk of imminent, serious sexual offending and on thatbasis, his principal submission was that he should be made subject to an IM ESO orderin the first instance.23 Judgment under appeal, above n 1, at [232].AnalysisOverview[26] In allowing Mr Chisnall's appeal against the first imposition of a PPO, andremitting the question of whether to impose a PPO or an IM ESO, this Court identifiedthe High Court's error in the following terms:24[37] In considering that question the Judge reasoned that, whilstMr Chisnall was prepared to agree to an ESO with an intensive monitoringcondition, such a condition would have a maximum duration of 12 months.There was no ability to extend that condition, and the Court could not imposethat condition more than once even if an offender is subject to repeated ESOs.There was no doubt Mr Chisnall required further, and ongoing intensivesupervision and monitoring, if his risk was to be monitored. There could beno guarantee that he would respond to any treatment he might receive duringthe 12-month period. He had not responded in the past and the Judge couldnot be confident that he would make sufficient progress, even with intensivetreatment, during the period that any intensive monitoring condition would bein place. Conditions that could subsequently be imposed under an ESO wouldnot protect against further offending to the same extent as an intensivemonitoring condition. On that basis the imposition of a PPO was appropriate.[38] In our view, and with respect, that is to approach the question in thewrong way. The question is not whether, at the end of the 12-month period,Mr Chisnall's position would be such that his risk would at that point be ableto be managed by an ESO with the then available special conditions, whichwould be less stringent than intensive monitoring. Rather the question is, aswe think the Supreme Court's decision shows, whether for that 12-monthperiod Mr Chisnall's risks could not be properly managed by an ESO with anintensive monitoring condition.[27] In this appeal, there is no suggestion that Gordon J erred in the way sheanalysed the possibility of an IM ESO alternative. In particular she did not, asthe High Court had previously done, ask whether Mr Chisnall would make sufficientprogress during the initial, but maximum, period of one year of an IM ESO so as to nolonger fit the criteria for an ESO (or indeed a PPO). Rather she looked at the situationduring that year, and how an IM ESO could manage the risk of Mr Chisnallreoffending. So, the issue for us on appeal is whether the Judge erred in her assessmentthat an IM ESO was not appropriate in Mr Chisnall's case.24 CA PPO appeal, above n 9 (footnotes omitted).[28] Where the preconditions in s 13 of the Public Safety Act are met, the Court"may" impose a PPO. That decision was referred to by the Judge as a "discretion".25It is clear, however, that the decision to be made is an evaluative one which must bemade consistently with the statutory framework and the principles that frameworkenunciates. The task for us is, therefore, as the Supreme Court explained in Austin,Nichols & Co Inc v Stichting Lodestar, to form our own opinion rather than defer tothe High Court's assessment of the evidence.26 However, and as we later explain, wehave received updating evidence as to developments in the current administration ofthe PPO and ESO regimes and Mr Chisnall's progress since the High Court hearing.The High Court decision[29] In reaching her decision the Judge focused on evidence given duringthe hearing:(a) by witnesses for the Chief Executive, as to the actual conditions ofsupervision in the facilities for persons subject to PPOs and ESOs; and(b) by the expert witnesses, as to their assessment of the effect onMr Chisnall were he to transfer from a PPO to an IM ESO.Evidence of the conditions of supervision in PPO and ESO facilities[30] Two senior Department of Corrections officials — Mr Andrew Burger andMr Lodewicus Gerber — provided affidavits and gave oral evidence, importantly inresponse to questions from the Judge, on conditions for supervision of persons(residents) subject to a PPO or an IM ESO. Three facilities (residences) are involved— Matawhāiti, Tōruatanga and Kaainga Taupua:27(a) Matawhāiti, where Mr Chisnall currently resides, is the sole residencefor persons subject to PPOs. Matawhāiti is located on the grounds of25 Judgment under appeal, above n 1, at [232].26 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].27 Mr Burger was the former residence manager of Matawhāiti and Tōruatanga. Mr Gerber isthe lead advisor in the Central Region High Risk Response Team based in Hamilton, and wasinvolved in the development of Kaainga Taupua.Christchurch Men's Prison. Matawhāiti is a secure facility, surroundedby an electrified perimeter fence. Reflecting the terms of a PPO,residents are legally in the custody of the Chief Executive.28At Matawhāiti they are monitored on a 24/7 basis. The physicalsecurity arrangements make it unlikely residents can leave on anunauthorised basis. When they do leave, they are accompanied at alltimes by staff who have the legal authority to detain them were they tobreach the approved basis for the outing involved.29(b) The other two residences, Tōruatanga and Kaainga Taupua, are forresidents subject to ESOs, including IM ESOs. Whilst also located onprison grounds, they are not secure facilities: in particular they are notsurrounded by energised wire fences. There are unenergised fences inplace but gates, if there are gates in place, are typically left open.Moreover, while residents subject to an IM ESO can, by therequirement of the Parole Board, be supervised 24/7 at both of thoseresidences by Department staff on a "line of sight" basis, as a matter ofpractice that approach is not taken with residents currently subject tosuch orders at either of those locations. Rather supervision is lessintensive: staff at the residences do not have a legal power to restrainor detain residents, nor are they expected to do so. If a resident leavesthe residence on an unauthorised basis, or breaches approvedarrangements when on a permitted outing, the staff will followthe resident and, if necessary, call for departmental or police assistance.[31] As so administered, in Mr Gerber and Mr Burger's assessment, Tōruatanga andKaainga Taupua would provide materially less control of Mr Chisnall's risk ofreoffending compared to that provided by Matawhāiti. Neither expressed a view,however, on the effect on that assessment of 24/7 line of sight monitoring at thoseresidences, if ordered.28 Public Safety (Public Protection Orders) Act 2014 [Public Safety Act], s 21(1).29 Sections 26(3) and 73.[32] Their assessment also reflected what they saw as the significance of the"free time" periods available to residents at Tōruatanga and Kaainga Taupua.Such residents are supervised in accordance with their weekly activity plans, includingprovision for free time during which residents are essentially left to their own devices.Relative to conditions at Matawhāiti, that allowed the possibility of relatively, initiallyat least, uncontrolled contact between residents and a degree of unsupervised conductby residents individually.[33] That said, both Mr Gerber and Mr Burger confirmed, in answers to questionsfrom Mr Edgeler, that the incidence of further offending by persons subject to eithera PPO or an ESO was very low.[34] In response to questions from Gordon J, Mr Burger described the possibility ofthe Department liberalising its approach as regards "outings" for those on PPOs.Judicial members of the PPO review panels had recommended that development.An Ombudsman's report had also recommended it.30 A group had been set up toimplement the necessary policy and procedure changes. Mr Burger was satisfied thatdevelopment was very likely to occur and could respond to Mr Chisnall's wish forsome form of employment being organised for him on a supervised basis outsideMatawhāiti.Expert evidence as to the effect of a move from Matawhāiti for Mr Chisnall[35] Each of Ms Margaret-Anne Laws, Drs Justin Barry-Walsh, Fran Vertue andStephanie Fisher — in response to questions from the Judge — expressed concern thata shift from Matawhāiti to either of Tōruatanga and Kaainga Taupua could be botha threat to progress Mr Chisnall may have made thus far and also increase his risk ofserious sexual reoffending.The Judge's assessment[36] Based on the expert evidence over time and produced for the hearing, the Judgeconcluded an IM ESO would not be sufficient to mitigate the very high risk of30 See Peter Boshier Report on an unannounced inspection of Matawhāiti Residence under theCrimes of Torture Act 1989 (Office of the Ombudsman, December 2020) at 24–25.reoffending Mr Chisnall posed. The evidence as a whole had established he requiredfurther treatment and a high level of supervision and management if that risk was tobe mitigated.31[37] The Judge summarised what she saw as established by the experts'observations during the hearing in response to her questions in the following way:[246] This conclusion reflects three other points established bythe evidence:(a) Even the limited treatment gains made are at risk of being lostunder a move to an ESO with interim monitoring. All healthassessors agreed that Mr Chisnall's treatment gains to datehave been extremely limited despite the familiar andstructured living environment of Matawhāiti, which appearsto be suited to Mr Chisnall's need for a strict routine. I amsatisfied that the treatment gains have not yet reached thelevel required for a safe transition to the less supervised andless secure setting of Tōruatanga. Living in such anenvironment could also make it more difficult for Mr Chisnallto retain his current, very limited treatment gains and/or makeany further such gains. Dr Fisher's evidence is that significanttime will be required for Mr Chisnall to be able to cement hislimited treatment gains and to generalise them toa community-based lifestyle for sustained risk management;(b) Mr Chisnall's demonstrated difficulties in complying withinstructions are likely to present clear problems for hiseffective management under an intensive monitoringcondition, especially within the less structured Tōruatangaenvironment. Dr Fisher's evidence is relevant in that respectgiven her conclusion that such monitoring may in factincrease Mr Chisnall's negative emotion, level ofinterpersonal aggression and his reliance on deviant sexualfantasy; and(c) Mr Chisnall's clear difficulties coping with minor routinechanges, even within the familiar setting of Matawhāiti, arelikely to be exacerbated by a move to Tōruatanga.[247] I consider a change in setting at this time would be premature,potentially detrimental to Mr Chisnall's limited treatment gains to date andthus present an undue risk to the safety of the community given theopportunities to abscond from Tōruatanga and Mr Chisnall's history ofopportunistic offending.[248] I therefore do not consider an ESO with intensive monitoring for12 months would be sufficient to protect the public from Mr Chisnall's veryhigh risk of imminent serious sexual offending.31 Judgment under appeal, above n 1, at [245].[38] The Judge went on to consider a possible modification of the Matawhāitiregime, involving Mr Chisnall continuing to be subject to an interim detention orderallowing for greater flexibility, particularly as regards supervised trips to thecommunity. Whilst attracted to that proposition, the Judge considered that the bettercontext for its consideration was within the process provided by the Public Safety Actfor the ongoing review of a PPO, its necessity and its day-to-day administration.32This appeal[39] On appeal, the argument for Mr Chisnall was that the Judge had erred,essentially in (i) underestimating the ability of 24/7 eye-to-eye supervision availableunder an IM ESO to control reoffending risk, including by not taking account of theevidence as to the actual experience of a very low rate of reoffending associatedwith ESOs and IM ESOs and (ii) in her assessment of the significance of the answersprovided by the expert witnesses in response to her questions of them as to the effecton Mr Chisnall, and his reoffending risk, of a move away from Matawhāiti.[40] In supporting the decision the Judge reached, the Chief Executive provided byway of updating evidence reports prepared pursuant to the ongoing review provisionsof the Public Safety Act.The review process and updating evidence[41] While a PPO is in force, a review panel appointed by the Minister of Justicemust review the continuing justification of the order on an annual basis.33 If the reviewpanel considers there may no longer be a very high risk of imminent serious sexual orviolent offending by the person subject to a PPO, the panel may directthe Chief Executive to apply to the High Court for review of the order.34[42] The continuing justification of Mr Chisnall's PPO was reviewed by a panelchaired by former High Court Judge Sir Graham Panckhurst (the Panel), which gaveits decision in December 2021 (some 10 months after the High Court decision).32 At [253].33 Public Safety Act, ss 15 and 122.34 Sections 15(2) and 16.[43] Before turning to the Panel's conclusions, we summarise two reports that wereprovided to the Panel.[44] First was a health assessor's report authored by Dr Neeshi Singh-Pillay, aregistered counselling psychologist. Dr Singh-Pillay concluded there remained a veryhigh risk of imminent serious sexual offending by Mr Chisnall were he to be no longersubject to supervision. That very high risk was only likely to be mitigated throughcontinued external monitoring and supervision. Given that Mr Chisnall's riskremained elevated, consideration of a less restrictive environment did not appearfeasible to her at this point.[45] Secondly, a report was provided by the current manager of the Matawhāiti andTōruatanga residences, Ms Melissa Brussovs. Ms Brussovs noted that, overthe previous year, Mr Chisnall had responded positively to two developments inthe administration of Matawhāiti: first the development of a framework for residentsupported outings and, secondly, collaboration between the Matawhāiti andTōruatanga residences, which had expanded the social network available to him.[46] More generally, Ms Brussovs reported Mr Chisnall as having responded wellto the Matawhāiti environment and routine. He had displayed a strong work ethic,undertaking responsibility for the maintenance of the residence's grounds and hadresponded well to his daily structured routines. He had readily engaged with allvolunteers and professional visitors, and had made significant progress in hisrelationships both with other residents and with staff — in particular with female staff.He had been generally compliant, save for two relatively minor incidents when heinitially displayed anger but then used a planned calming technique of walking away,albeit that in the process he had punched a concrete wall and an external heat pumpcausing himself minor injuries.[47] Mr Chisnall had, Ms Brussovs noted, been "outside the Matawhāiti wire" onover 100 occasions, without incident since March 2021. Those outings had focusedon making him more comfortable in larger crowds of people in busier spaces.Whilst both staff and Mr Chisnall had noted some stress and anxiety for him in thosecircumstances, positive progress was being made. Ms Brussovs commented:Supported outings since March 2021 have included: community walks andcity familiarisation; outings to shops and services such as banking,pharmacies, home improvement stores, safety equipment shops and farming /power equipment stores; visits to the Tōruatanga Residence for social andrecreational activities; and fortnightly outings to Countdown Supermarket topick up groceries. [The] [n]ext steps [for] supported outings will likelyinclude undertaking supermarket shopping rather than click and collect, andpotentially reducing the number of accompanying staff from two to one.[48] Mr Chisnall was, the report says, an active and positive member ofthe Matawhāiti residence community. The report did not itself contain anyrecommendation for the Panel. It did, however, include the following final comment:The Department's High Risk Response Team will need to work withMr Chisnall to develop an appropriate release proposal, should the PPOReview Panel direct the Chief Executive to apply to the High Court for areview of the Public Protection Order.Mr Chisnall has expressed a desire to remain in the Ōtautahi area, at leastinitially, should he be considered for release. An appropriate option in this areawould be the Tōruatanga Residence, which is supported by the same staffas Matawhāiti.[49] Having considered those reports, the Panel ultimately decided against directingthe Chief Executive to apply to the High Court for a review of Mr Chisnall's PPO.[50] Two factors influenced that conclusion in particular. First, Dr Singh-Pillay'scomprehensive assessment, with which the Panel concurred. Secondly, the limitationthe Panel had encountered pursuant to Mr Chisnall's election to exercise his right toconfidentiality in the materials that were provided to Dr Singh-Pillay, with respect toa significant part of a seven-page report prepared by a Corrections clinicalpsychologist outlining the treatment afforded Mr Chisnall following the reinstatementof his PPO by the High Court. The Panel saw the absence of its access to that, in turn,as a "significant disadvantage".[51] The Panel then reviewed Mr Chisnall's progress under his management plan.Such a management plan has 10 parts. Nine address life skills and one addressesrehabilitation and integration. Whilst the Panel recognised the benefit of achievinglife skills it observed that, given the common criminogenic factors, Mr Chisnallrequired expert treatment focused on the contextual factors of deviant sexual arousal,compulsivity, poor impulse control, emotional dysregulation and an absence of socialinhibitions, together with his associated clinical factors of low cognitive functioning,ADHS and autism spectrum disorder. The Panel endorsed the recommendations forthe future implementation of the management plan, and in particular recommendedthat resident outings continued, including increased contact with members ofthe community, the use of public transport and other modifications that better enableany improvement in social conduct to be gained. The Panel finally noted, subject tothe outcome of this appeal, Mr Chisnall's next review hearing was scheduled forNovember 2022.[52] Before turning to our assessment of this appeal, we note that both Mr Chisnalland the Chief Executive agreed this updating evidence could be considered by uson appeal. However, in written submissions the Chief Executive said the partiesagreed that any reliance on that evidence ought to be limited, given that the reportwriters were not witnesses in the High Court hearing and have not beencross-examined on their reports.[53] We recognise those limitations, but we note the parties were entitled to examinethe witnesses in this Court.35 Both Dr Singh-Pillay and Ms Brussovs were beforethe Panel on review. Had there been issues with their evidence, we consider thoseissues would have been apparent at the review and, if necessary, brought to this Court'sattention on appeal. Instead, the oral submissions on appeal focussed on that updatingevidence in some detail. We consider that evidence is fresh, cogent and credible:36it updates this Court on how the PPO and ESO regimes have been developed andadministered since the High Court hearing, and Mr Chisnall's response to thosedevelopments. In our view the scheme of the Public Safety Act, in particularthe annual review process, contemplates the acceptance of, consideration and relianceon, updating evidence at the appellate stage.37 We admit that evidence accordinglyand have taken account of it in our assessment below.35 Court of Appeal (Civil) Rules 2005, r 45(2).36 Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at192, affirmed in Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006]NZSC 59, [2007] 2 NZLR 1 at [6].37 Compare D (SC31/2019) v New Zealand Police [2021] NZSC 2, [2021] 1 NZLR 213, a case inwhich a majority of the Supreme Court considered it was appropriate to take account of updatingevidence, which had been provided at each stage of the appellate process, to determine the levelof risk of sexual reoffending relevant to the making of a registration order under theChild Protection (Child Sex Offender Government Agency Registration) Act 2016, inOur assessment[54] Throughout these proceedings, Mr Chisnall has maintained a consistentposition: that is, consistent with his view that whilst he meets the high risk of serioussexual reoffending, he does not constitute a very high risk of imminent serioussexual offending. In that context, the basis of the Supreme Court finding thata rights-consistent approach to the scheme of the legislation required the assessmentof whether lesser controls than those provided by a PPO would be sufficient to meetthat risk. As the Supreme Court put it:38[40] If conditions can be put in place without detention that would removethe opportunity or restrict it to an extent that there is no longer very high riskof imminent offending of the type, then a public protection order or an interimdetention order ought not to be made. That is clear from the scheme ofthe legislation and is consistent with the protections contained in theNew Zealand Bill of Rights Act.[55] Put another way, and setting aside Mr Chisnall's acceptance in this case of anIM ESO, the decision the Court is required to make is not between two alternatives,and two alternatives only. Rather what is to be considered is whether the severerestrictions of a PPO are the only way to manage the identified risk of imminentserious sexual offending, remembering again that the assessment of whether such riskexists is premised on the absence of restraint,39 rather than on an assessment of thecomparative protective effect of a PPO on the one hand and some other form ofrestriction on the other.[56] In saying that, we are not suggesting here that the High Court erred inthe approach it took when considering whether an IM ESO alternative wasappropriate. After all, as a matter of logic, if the protective restrictions provided by anIM ESO are not adequate to mitigate the very high risk of imminent serious sexualoffending, lesser restrictions would not be either.circumstances where consideration of that evidence was not objected to: at [41] per WinkelmannCJ and O'Regan J and [159] per Ellen France J. William Young J at [305]–[309] and GlazebrookJ at [262] (dissenting) expressed reservations about considering updating evidence in theassessment of risk. In particular, they noted the relevant statutory scheme did not, unlike here,provide for the review of registration orders even if the level of risk had changed.38 Interim detention order (SC), above n 7 (footnote omitted).39 See definition of "imminent" in Public Safety Act, s 3; and CA PPO appeal, above n 9, at [15];and McCorkindale v Deputy Chief Executive of the Department of Corrections [2019] NZCA 369at [13].[57] Here, however, we have the benefit of the detailed updating evidence providedby the Chief Executive of the actual way in which the PPO and ESO regimes areapplied and residents are managed in both the PPO residence, Matawhāiti; and in theESO residence, Tōruatanga. Whilst as a matter of fact the presence of an electrifiedsecurity fence, and the controls it provides, continue to distinguish the regimes appliedin each of the residences, the conclusion we take from that evidence is that in practicethe significance of that distinction is less apparent than it might in theory appear.[58] As to the risk presented by Mr Chisnall himself, in our view the evidenceestablishes the ability of a modified regime, less restrictive than the one in theoryavailable under a PPO, is capable of managing his personal risk. He is described asbeing compliant, a positive member of the Matawhāiti/Tōruatanga communities,someone who is growing in self-awareness of his problems and someone who ispositively engaging with work opportunities provided to him. In this context,the evidence that he has successfully taken part in over 100 outings, supervised by twostaff members but with the possibility of outings supervised by one staff member inthe near future, is of some significance. Moreover, the modifications made tothe regime and Mr Chisnall's response to those modifications suggest any impact ofa transfer from Matawhāiti to Tōruatanga on his routine and treatment gains can beappropriately managed.[59] Given the Supreme Court's recognition of the extreme nature of the deprivationof personal liberty and autonomy presented by a PPO, and the need to calibrate riskand necessary restraint, we are satisfied that an IM ESO would be sufficient to mitigatethe risks of imminent serious sexual offending that would arise were Mr Chisnall nolonger to be subject to supervision.[60] We therefore allow the appeal. The PPO is cancelled and, as accepted byMr Chisnall at this point, an IM ESO is the appropriate response to the riskMr Chisnall presents.Relief[61] At the hearing the parties agreed that, in the event we allowed the appeal,this Court does not have the power to impose an ESO directly. As we have noted,whilst the Chief Executive simultaneously filed in the High Court applications for aPPO or an ESO in the alternative, those applications could not be determined at thesame time. Under the terms of s 107GAA(2)(b) of the Parole Act, the PPO applicationhad to be determined first and separately from the ESO application. Therefore,the ESO application (with an IM condition) to which Mr Chisnall consents has not yetbeen determined. That application must now be remitted to Gordon J inthe High Court.[62] A further matter arises. As we have "finally determined" the PPO application,the interim detention order imposed by Fogarty J in April 2016 ceases to have effect.40[63] In order to avoid a "gap or hiatus" in the degree of supervision pendingdetermination of the ESO application,41 we exercise our powers as High Court judgesto impose an interim supervision order under s 107FA of the Parole Act.42 We do soon the terms set out in the Chief Executive's originating application of 15 April 2016,including the interim special conditions sought at para 5.7(a)–(m) of that application.Result[64] The application to adduce further evidence is granted.[65] The appeal is allowed.[66] The public protection order is cancelled and the Chief Executive's applicationfor that order is finally determined.[67] The Chief Executive's application for an extended supervision order with anintensive monitoring condition is remitted to the High Court for determination.[68] We exercise our powers as High Court judges to impose under s 107FA ofthe Parole Act an interim supervision order, pending determination of the matterremitted to the High Court, on the terms set out in the Chief Executive's originating40 Public Safety Act, s 107(4).41 CA PPO appeal, above n 9, at [68], citing R (CA464/2018) v Chief Executive of the Department ofCorrections [2019] NZCA 60 at [36].42 Senior Courts Act 2016, s 103.application dated 15 April 2016, including the interim special conditions sought atpara 5.7(a)–(m) of that application.[69] The respondent must pay the appellant costs for a standard appeal on a band Abasis and usual disbursements.Solicitors:Crown Law Office, Wellington for Respondent