R (CA464/2018) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 60 [20 March 2019]

R (CA464/2018) v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2019] NZCA 60[20 March 2019]NOTE THAT ORDER MADE BY THE HIGH COURT PROHIBITINGPUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYINGPARTICULARS OF APPELLANT REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA464/2018[2019] NZCA 60BETWEEN R (CA464/2018)AppellantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentHearing: 22 November 2018Court: French, Cooper and Winkelmann JJCounsel: G K Edgeler for AppellantA F Todd and H M L Farquhar for RespondentJudgment: 20 March 2019 at 11 amReissued: 17 June 2019Effective dateof Judgment: 20 March 2019JUDGMENT OF THE COURTA The appeal is allowed and the interim detention order issued by theHigh Court is quashed for want of jurisdiction.B The respondent must pay the appellant costs for a standard appeal on aband A basis together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] R appeals against an interim detention order imposed by Wylie J under s 107(2)of the Public Safety (Public Protection Orders) Act 2014.1 The Act, which we shallcall the Public Safety Act, provides for the making of public protection orders andinterim detention orders. In this case, the respondent, the Chief Executive of theDepartment of Corrections, had filed an application in the High Court seeking bothtypes of order against R.[2] Under the Public Safety Act, interim detention orders may only be made beforean application for a public protection order is finally determined. At the time we heardthe appeal against the interim detention order, the application for a public protectionorder had been heard in the High Court by Whata J, but not determined. Shortly afterthe appeal hearing, Whata J issued his decision holding that the Chief Executive hadestablished a case for a public protection order, but seeking further submissions onless restrictive alternatives.2[3] After receiving the further submissions, Whata J issued a second decision.3In the second decision, he concluded that the type of less restrictive alternative he hadbeen contemplating in his first decision was inappropriate having regard to the veryhigh risk presented by R. However, instead of making a public protection order,Whata J directed the Chief Executive to consider seeking an assessment of R unders 29 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.[4] Justice Whata's first decision rendered moot the aspect of R's appealchallenging the justification for the interim detention order. However, the appeal alsoraises two important jurisdictional questions which it is desirable for us to resolve.[5] The first is whether a person wishing to appeal the imposition of an interimdetention order has an appeal as of right to this Court or must first obtain leave toappeal. The answer to that question turns on whether such an appeal is an appeal froman order made on an interlocutory application. R did not seek or obtain leave and1 Chief Executive, New Zealand Department of Corrections v [R] [2018] NZHC 1733.2 Chief Executive of the Department of Corrections v [R] [2018] NZHC 3106.3 Chief Executive of the Department of Corrections v [R] [2018] NZHC 3455.argued they were not required to do so because it was not an interlocutory proceeding.The Chief Executive, who raised the issue, presented arguments to the contrary, butdid not express a strong view. Counsel for the Chief Executive, Ms Todd, responsiblyaccepted it was not clear cut.4[6] The second question is whether the High Court had jurisdiction to impose aninterim detention order when the application for a public protection order was filedafter R had ceased to be subject to intensive monitoring conditions. R says the Courtonly had jurisdiction if the application had been made while the conditions were stillin force. This argument was not raised in the High Court.[7] In order to address both these questions, it is necessary first to briefly explainthe relevant aspects of the statutory regime.The statutory regimePublic protection orders[8] The express objective of the Public Safety Act is to protect the "public fromthe almost certain harm that would be inflicted by the commission of serious sexualor violent offences".5 To that end, pt 1 provides for the detention and supervision ofpersons posing a very high risk of imminent serious sexual or violent offending.Imminent is defined as meaning the person is expected to commit such an offence assoon as they have a suitable opportunity.6 The focus is thus on risk.[9] Public protection orders are dealt with in subpt 2 of pt 1. Under s 8the Chief Executive is empowered to apply to the court for a public protection orderagainst a person on the ground they present a very high risk of imminent serious sexualor violent offending, provided certain threshold requirements are also met.The threshold requirements are set out in s 7. For present purposes, they relevantlyinclude a person who is subject to an extended supervision order and who is or has4 The Crown raised the issue for clarification and not to defeat R's appeal on technical jurisdictionalgrounds. In the event we held that leave was required, the Crown made various constructivesuggestions as to how the situation could be regularised.5 Public Safety (Public Protection Orders) Act 2014 [Public Safety Act], s 4(1).6 Section 3 definition of "imminent".been subject to intensive monitoring conditions imposed under s 107K ofthe Parole Act 2002.7 R was subject to an extended supervision order and intensivemonitoring conditions.8[10] Section 13, which is headed "Court may make public protection order", statesthat after considering all the evidence offered on an application for a public protectionorder and in particular the evidence given by two or more health assessors, one ofwhom must be a registered psychologist, the court may make a public protection orderif satisfied of the following:(a) the respondent meets the threshold for a public protection order; and(b) there is a very high risk of imminent sexual or violent offending ifthe respondent is released from prison into the community or in anyother case the respondent is left unsupervised.[11] Section 13(2) goes on to impose a further prerequisite to the making of a publicprotection order. The court may not find the required "very high risk" to exist unlesssatisfied that the respondent exhibits a severe disturbance in behavioural functioningestablished by evidence to a high level of each of four specified characteristics.The specified characteristics include an intense drive or urge to commit a particularform of offending and limited self regulatory capacity.[12] As soon as the court issues a public protection order, the legal effect is thatthe Chief Executive immediately has custody of the respondent.9 That meansthe respondent will be required to stay in a residential building located on prisonprecincts designated by the Minister of Corrections.10 The resident may leave thefacility if granted leave of absence, but leave may only be granted for limitedpurposes.11 During periods of leave, the resident must be escorted and supervised.127 Section 7(1)(b)(i).8 When those conditions were first imposed is in dispute but that issue is now not relevant to thisappeal.9 Section 21.10 Section 3 definition of "residence" and s 114.11 Section 26(1).12 Section 26(3).[13] Other restrictions imposed by the legislation on a resident include themonitoring of phone calls, the obligation to comply with the directions of the residencemanager, residence staff, or corrections staff or police employees undertaking escortduty, the supervision of visitors and a prohibition on possessing specified items whichinclude alcohol and tobacco.13[14] Notwithstanding these significant restrictions, it is also an express principle ofthe Public Safety Act that persons who are detained in a residence under a publicprotection order should have as much autonomy and quality of life as possible whileensuring the orderly functioning of and safety within the residence.14 To that end,the legislation also details specific rights of residents such as the right to vote, the rightto legal advice, the right to access news media, the rights to obtain social securitybenefits or wages, and the right to rehabilitative treatment.15 It also contains a generalprovision that a resident has the rights of a person of full capacity who is not subjectto a public protection order except to the extent those rights are limited by thePublic Safety Act itself, rules instructions or regulations made under thePublic Safety Act, or decisions made by managers in accordance with specifiedcriteria.16[15] Public protection orders are not made for any specified period of time.However, the Chief Executive must apply to the court for a review of the continuingjustification of the order within five years after the order is made, and then withinfive years after the first review, and then at intervals of not more than five years.17There is provision for review by a review panel while the resident also has the right,with the court's leave, to apply to the court for a review.1813 Respectively ss 50–61, 22, 34(2), and s 23 and the s 3 definition of "prohibited item".14 Section 5(d); and see s 27(4)(a).15 Respectively ss 30, 29, 33, 28 and 39, and 36.16 Section 27(1).17 Section 16(1).18 Section 17(1).Interim detention orders[16] The power to impose an interim detention order is conferred on the High Courtby s 107 of the Public Safety Act. It is this section which lies at the heart of this appeal.We therefore set it out in full before turning to the two questions.[17] Section 107 provides:107 Court may order interim detention of, or interim imposition ofconditions on, respondent(1) This section applies when, before an application for a publicprotection order is finally determined, 1 or more of the followingevents occur:(a) a respondent is released from detention:(b) a respondent who is subject to an extended supervision orderceases to be subject to conditions of the kind referred to insection 7(1)(b) or (c):(c) the respondent is brought before the court under section 106:(d) the court gives a direction under section 12(2):(e) a respondent to whom section 7(1)(d) applies arrives inNew Zealand.(2) The court may, on an application by the chief executive, order that,until the application for a public protection order is finally determined,the respondent is to be detained by a person, and in a place, specifiedin the order.(3) When the court makes an order under subsection (2) (an interimdetention order), the court may suspend that order subject to anyconditions that the court thinks fit.(4) An order under this section ceases to have effect when the applicationfor a public protection order is finally determined or discontinued.Did R need leave in order to be able to appeal against the interim detentionorder?[18] It was common ground the appeal is governed by the Senior Courts Act 2016.1919 R sought to additionally rely on s 25(h) of the New Zealand Bill of Rights Act 1990. Given theconclusion we have reached, it is not necessary for us to resolve the applicability of that provision.[19] Section 56(1)(a) of the Senior Courts Act provides for a right of appeal from ajudgment, decree or order of the High Court. The interim detention order made byWylie J clearly falls within the definition of an order of the High Court. However,s 56 also states in subs (3) that no appeal lies from an order or decision ofthe High Court made on an interlocutory application in respect of any civil proceedingunless leave is obtained from the High Court.20 If the High Court refuses to grantleave, this Court may grant leave under subs (5).[20] The term "interlocutory application" is defined by s 4 of the Senior Courts Act:interlocutory application—(a) means any application to the High Court in any civil proceedings orcriminal proceedings, or intended civil proceedings or intendedcriminal proceedings, for—(i) an order or a direction relating to a matter of procedure; or(ii) in the case of civil proceedings, for some relief ancillary tothat claimed in a pleading; and(b) includes an application to review an order made, or a direction given,on any application to which paragraph (a) applies[21] The concept of "ancillary" is also to be found in the definition of"interlocutory order" contained in the High Court Rules 2016. Rule 1.3(1) defines an"interlocutory order" as an order made or given for the purpose of a proceeding or anintended proceeding and which concerns a matter of procedure or grants some reliefancillary to that claimed in a pleading.21[22] Ms Todd acknowledged that in his statement of claim, the Chief Executivesought an interim detention order as a separate order, distinct from the publicprotection order, rather than ancillary to it.[23] However it was submitted that as a matter of substance, an interim detentionorder bears the key characteristics of an interlocutory order. Ms Todd pointed out that,20 The exceptions are appeals against strike-out decisions or decisions granting summary judgmentdo not require leave: Senior Courts Act 2016, s 56(4).21 The differences between the definition of "interlocutory application" in the Senior Courts Act andthe High Court Rules are discussed in Trotter v Telter Electrical Nelson Ltd [2018] NZCA 231.Nothing turns on those differences in this case.like an interim injunction, such orders are made pending the substantive determinationof a final order (the public protection order). An interim detention order may only bemade if the court is satisfied the statutory grounds for a public protection order havebeen made out,22 and the assessment is provisional until the substantive applicationcan be heard;23 an interim detention order is incapable of raising a res judicata; and itdoes not finally determine the rights of the parties. An interim detention order ceasesto have effect immediately a public protection order is made or the application for apublic protection order is discontinued or declined.24 It is "parasitic" on theapplication for a public protection order, as was noted in the Supreme Court decisionof Chisnall.25[24] Those arguments and the further point that s 107 is contained in a part ofthe Public Safety Act headed "procedural matters" are well made. But, in our view,they do not take sufficient account of the far-reaching nature of an interim detentionorder. Although, as the Chief Executive accepted, the Court can make an interim orderdirecting detention at a place other than a gazetted public protection order facility, itis still a detention and the substantive rights of a person subject to an interim order aresignificantly impacted. Thus, as with public protection orders, as soon as an interimdetention order is pronounced by the court, legal custody of the person subject to itimmediately commences. They will then be detained in a place where they are closelysupervised, monitored and controlled very much as they would be under a publicprotection order. The order entails the loss of freedom of movement as well assignificant restrictions on other rights. In those circumstances, we do not accept theproceeding or the order can properly be described as "ancillary" within the meaningof s 56(3) and the High Court Rules.[25] We are reinforced in that view by reference to the policy reasons underlyingthe requirement for leave to appeal in interlocutory proceedings. The purpose ofs 53(3) of the Senior Courts Act is to filter out appeals of interlocutory decisions of no22 Chisnall v Chief Executive of the Department of Corrections [2016] NZCA 620 at [30]–[37]; aff'd[2017] NZSC 114, [2018] 1 NZLR 83 [Chisnall (SC)] at [25], [73] and [84] n 82.23 Chisnall (SC), above n 22, at [20], [32], and [37].24 Public Safety Act, s 107(4).25 Chisnall (SC), above n 22, at [37].great significance to either the parties or more generally.26 Plainly that does not applyto an interim detention order. Further, in our view, the fact an interim detention ordercan be made without the case being proved at a fully contested hearing makes it evenmore important, not less important, that the detained person should have an appeal asof right.[26] We conclude that R did not require leave to bring his appeal.Did Wylie J have jurisdiction to make an interim detention order when theapplication was not made until after intensive monitoring conditions had ceased?[27] For convenience, we again set out the relevant provisions of s 107:107 Court may order interim detention of, or interim imposition ofconditions on, respondent(1) This section applies when, before an application for a publicprotection order is finally determined, 1 or more of the followingevents occur:(a) a respondent is released from detention:(b) a respondent who is subject to an extended supervision orderceases to be subject to conditions of the kind referred to insection 7(1)(b) or (c):(2) The court may, on an application by the chief executive, order that,until the application for a public protection order is finally determined,the respondent is to be detained by a person, and in a place, specifiedin the order.(4) An order under this section ceases to have effect when the applicationfor a public protection order is finally determined or discontinued.[28] It was common ground that of the listed triggering events in s 107(1), onlys 107(1)(b) was relevant, namely the ceasing of conditions referred to in ss 7(1)(b) or(c). Those include intensive monitoring conditions to which as mentioned R wassubject under an extended supervision order. Intensive monitoring conditions areexpressed to last for only 12 months.2726 Ngai Te Hapu Inc v Bay of Plenty Regional Council [2018] NZCA 291 at [12] and [15].27 Parole Act 2002, s 107K(3)(ba).[29] According to R's counsel, Mr Edgeler, the effect of s 107 is that an interimdetention order can only be made if the intensive monitoring conditions are still inforce at the time the application for a public protection order is made. To put it inanother way, they must lapse after the application for a public protection order is filedbut before its final determination.[30] In this case, the intensive monitoring conditions expired on 26 March 2018.The Chief Executive did not apply for interim detention and public protection ordersuntil 11 April 2018, some 16 days later. It follows that under Mr Edgeler'sinterpretation of s 107, this was too late and meant Wylie J did not have jurisdiction toimpose an interim detention order.[31] For its part, the Crown acknowledged that as a matter of practice applicationsare usually filed before the intensive monitoring conditions lapse. However, Ms Toddcontended the failure to do so in this case did not deprive the Court of jurisdiction.In Ms Todd's submission, the only time prerequisite under s 107 is that the interimdetention order must be made before the application for a protection order is finallydetermined. And that was satisfied in this case.[32] Ms Todd also relied on the combined effect of ss 7 and 13. Read together theyempower the Chief Executive to apply for a public protection order if the respondentis or has been subject to intensive monitoring conditions.[33] We accept that is the combined effect of ss 7 and 13 and that accordingly thefact the Chief Executive only applied for a public protection order after R's intensivemonitoring conditions had lapsed would not have prevented Whata J from making apublic protection order. But s 13 is limited to public protection orders. It says nothingabout interim detention orders. That is governed by s 107. We are therefore drivenback to the words of s 107.[34] Section 107, and hence the power to make an interim detention order, isexpressed to apply only when certain specified events occur before an application fora public protection order is finally determined. In our view it must, as a matter ofcommon sense and ordinary principles of interpretation, be implicit in this requirementthat there is an application actually in existence.[35] We are supported in that construction by considering the provisions that bothprecede and follow s 107. Section 104 for example deals with the form ofan application for a public protection order, and s 105 with service of the applicationon the respondent. Similarly, all the provisions that follow s 107 in the subpart alsodeal with and clearly contemplate an extant application.[36] It would have been an easy matter for Parliament to have inserted the phrase"has ceased to be subject" in s 107(1)(b), so the provision would then read "ceases tobe subject or has ceased to be subject". Section 7(1)(b)(i) demonstrates that whenParliament wanted to cover the situation of intensive monitoring conditions havinglapsed it did so by express words using the past tense. It did not do that in s 107.Only the present tense is used. And that is because, in our view, the expectation wouldhave been that if a person continued to present the same level of risk that necessitatedintensive monitoring conditions (as the Chief Executive says is the case with R), theauthorities would not allow those conditions to lapse before taking the necessary stepsto get an interim detention order in place. Parliament would not have expected thereto be a hiatus or gap in the degree of supervision.[37] In fact, the parliamentary record indicates the purpose of interim detention isto avoid gaps when court processes may extend the determination of an applicationbeyond the expiry of subsisting conditions. While the Bill that preceded thePublic Safety Act was going through the House so too was a Bill affecting extendedsupervision orders.28 That Bill borrowed the idea of an interim order, and it wasexplained by the responsible Minister as a solution to court delays causing a periodwithout supervision, and a way to avoid disruption to the affected person.29We consider it likely this same purpose behind what is now s 107FA of theParole Act 2002 is also behind s 107 of the Public Safety Act.28 Parole (Extended Supervision Orders) Amendment Bill 2014 (195-3).29 (2 December 2014) 702 NZPD 1019. There is no discussion of the clause enacted as s 107 of thePublic Safety Act in the parliamentary record.[38] We therefore consider that Mr Edgeler's interpretation is consistent with thepolicy reasons underlying the Public Safety Act and does not undermine them. It doesnot impede the flexibility of the authorities to act in the public interest, but ratherreinforces the imperative for them to act promptly. If they do there will be no hiatus,which is beneficial both from public safety and good administration perspectives.[39] There is of course always the chance of human error and deadlines can bemissed. The effect of our decision is that if a mistake is made and the application fora public protection is filed late, the Court cannot make an interim detention order.However, that would not need to mean public safety was put in jeopardy. In such asituation, it would always be open to the Chief Executive to seek an urgent hearing ofthe public protection order application.Result[40] The appeal is allowed and the interim detention order imposed by theHigh Court quashed for want of jurisdiction.[41] R is not legally aided and seeks costs. There is no reason why costs should notfollow the event and accordingly we order that the respondent must pay the appellantcosts for a standard appeal on a band A basis together with usual disbursements.Solicitors:Crown Law Office, Wellington for Respondent