STANLEY ALLEN GILMOUR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZSC 147
The Department has discretion under s 43(1) to determine the contents of parole assessment reports and to exclude material it considers irrelevant to the Parole Board; the identity of the individual who finalised the report is immaterial to that legal conclusion, and therefore the recall application failed.
Source-derived case information.
- Citation
- [2017] NZSC 147
- Parties
- Applicant: Stanley Allen Gilmour; Respondent: Chief Executive of the Department of Corrections
- Court
- Supreme Court
- Jurisdiction
- New Zealand
- Judgment Date
- 3 October 2017
- Procedural Posture
- Application for Leave to Appeal and Application for Recall of Supreme Court Judgment / Recall Application Following Dismissal of Leave to Appeal
- Outcome
- Application for recall dismissed
- Legal Topics
- Parole Assessment Reports, Departmental Discretion, Authority of Case Manager, Inclusion of Evidence
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stanley Allen Gilmour
Applicant
Chief Executive of the Department of Corrections
Respondent
Procedural Posture
Application for Leave to Appeal and Application for Recall of Supreme Court Judgment / Recall Application Following Dismissal of Leave to Appeal
Legal Issues
- 1 Whether the Department of Corrections was required to include the applicant's probation officer contribution in the parole assessment report
- 2 Whether the principal case manager had authority to decide report contents or veto contributions
- 3 Whether the recall application raised any new legal question or was a re-run of the leave application
Ratio Decidendi
The Department has discretion under s 43(1) to determine the contents of parole assessment reports and to exclude material it considers irrelevant to the Parole Board; the identity of the individual who finalised the report is immaterial to that legal conclusion, and therefore the recall application failed.
Court Disposition
Application for recall dismissed
Orders
- Application for recall dismissed
- No change to prior judgment of 4 September 2017 dismissing leave to appeal
Full Case Text
Judgment text and source record
1 paragraphs
STANLEY ALLEN GILMOUR v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2017] NZSC 147 [3 October 2017]IN THE SUPREME COURT OF NEW ZEALANDSC 69/2017[2017] NZSC 147BETWEEN STANLEY ALLEN GILMOURApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: William Young, OʼRegan and Ellen France JJCounsel: W G C Templeton and T A Chubb for ApplicantD J Perkins and M J McKillop for RespondentJudgment: 3 October 2017JUDGMENT OF THE COURTThe application for recall is dismissed.____________________________________________________________________REASONS[1] The applicant seeks a recall of our judgment of 4 September 2017 dismissing his application for leave to appeal from a judgment of the Court of Appeal.1 In issue is a parole assessment report provided to the Parole Board under s 43 (1) of the Parole Act 2002 by the Department of Corrections. His complaint is that a contribution which he, as a probation officer, had prepared in respect of a particular offender was not included in the final parole assessment report. In our judgment wesaid the offender's principal case manager who finalised the report in the sense ofsigning and submitting "was entitled to form a judgment as to what should be included".21 Gilmour v Chief Executive of the Department of Corrections [2017] NZSC 133.2 At [6].[2] The basis of the recall application is that there was no evidence of such"entitlement" nor of any right of "veto" vested in the principal case manager. The application was supported with a mass of evidential material as to how the parole assessment reports are prepared.[3] The application for recall is misconceived and the material relied on in support of it beside the point. The Court of Appeal held that the contents of thereport are for the Department to determine and in particular that it "was open to the Department to view the information [in question] as not relevant to the Board's task".3 This is the same approach as we took, save that we personalised the process by treating the principal case manager as the Departmental decision-maker. This personalisation was immaterial to the outcome of the application for leave to appeal. This is because the question which the applicant wished to raise on appeal (namely that the Department was required to include his contribution) did not depend on the identity of the person who decided that it should not be included. To the extent that the applicant's complaint is that the Department was not entitled to exclude hiscontribution, this is just a re-run of the argument already addressed in the leave judgment.[4] Accordingly, the application for recall is dismissed.Solicitors:Sellar Bone and Partners, Auckland for ApplicantCrown Law Office, Wellington for Respondent3 Gilmour v Chief Executive of the Department of Corrections [2017] NZCA 250 (Harrison, Winkelmann and Asher JJ).