STEWART MURRAY WILSON V THE NEW ZEALAND PAROLE BOARD HC CHCH CIV-2010-409-000459

STEWART MURRAY WILSON V THE NEW ZEALAND PAROLE BOARD HC CHCH CIV-2010-409- 000459 22 April 2010IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2010-409-000459IN THE MATTER OF the Judicature Amendment Act 1972 BETWEEN STEWART MURRAY WILSON Plaintiff AND THE NEW ZEALAND PAROLE BOARD Defendant Hearing: 22 April 2010 Counsel: A J McKenzie for Plaintiff A M Powell for Defendant Judgment: 22 April 2010JUDGMENT OF PANCKHURST JIntroduction[1] In a sense this proceeding is a sequel to two habeas corpus applications heard in this Court in December 2009 1 and February 2010 2 . The applications related to a Parole Board hearing on 15 December 2009. This was a six monthly review of an order made pursuant to s107 of the Parole Act 2002 by virtue of which Mr Wilson remains in prison beyond his final release date (or as it is often called his "two- thirds" date), on account of the risk it is thought he would pose if released. [2] The first habeas corpus application was based on an asserted breach of s107(6), whereby a non-release order must be reviewed by the Board at least once in every six months following the making of the order. Fogarty J found that the then1 Wilson v The Chief Executive of the Department of Corrections & The New Zealand Parole BoardHC Christchurch CIV 2009-409-002896 Fogarty J, 9 December 2009.2 Wilson v The Chief Executive of the Department of Corrections & The New Zealand Parole BoardHC Christchurch CIV 2010-409-000270 Panckhurst J, 11 February 2010.scheduled hearing on 15 December 2009 was not in breach of s107(6). Hence, the issue of a writ of habeas corpus was denied. [3] In February of this year I heard the second habeas corpus application which was based upon a breach of s107(4). This subsection requires that a copy of any report submitted to the Board for the purposes of a review hearing must be supplied to the offender at least 14 days before the review is to be heard. This requirement was not complied with, but in the event I upheld the Board's decision that it was nonetheless appropriate for it to continue with the hearing on 15 December 2009. [4] Despite the adverse result in relation to both habeas corpus applications, Mr Wilson brought the present application for judicial review – which is based on the same factual matters, although more particularly upon the acknowledged breach of s107(4) (non-compliance with the 14 day rule). [5] With reference to that breach, Mr McKenzie argued that illegality in a public law sense was established; and sought relief as follows: (a) a declaration that the December 2009 review hearing ought not to have proceeded, (b) a declaration that the Board's decision was unlawful, (c) an order quashing the non-release order, (d) an order quashing the purported decision, (e) public law compensation in the amount of $500, and (f) costs. I shall first consider the issue of illegality, and then the question of relief.Was the Board's decision affected by illegality?[6] Illegality is the sole ground raised in the statement of claim seeking judicial review. To my mind the complaint upon which the application is based (non-compliance with s107(4)) does not fit comfortably within the recognised categories of illegality 3 . [7] The complaint is in reality one of procedural impropriety. In essence s107(4) is a procedural requirement and obviously one intended to ensure that parties be given adequate notice and opportunity to be heard (audi alteram partem). Indeed, counsel acknowledged as much, in that the argument for public law damages or compensation was squarely based on s27(1) of the New Zealand Bill of Rights Act 1990, which section gave statutory recognition to these same common law rights. [8] But however the complaint is categorised, the first problem is in relation to evaluation of the breach and, more particularly, whether anything occurred which might afford a sufficient basis for judicial review. [9] Non-compliance with s107(4) arose because Mr Wilson received certain relevant reports only about a week before the hearing, not 14 days before then. The Board acknowledged this procedural breach and assessed it as follows:5. Approached in that way we first need to consider the nature of the reports that were not provided to Mr Wilson in time. Nothing turns on the prisoner details report. That is something Mr Wilson would have seen before. It simply records the details of his sentence. As for the Parole Assessment report our understanding is that a copy was provided to him on 29 October 2009 and he was asked to sign it. He refused. In any event little had changed from the previous report prepared six months before. As for the psychological report from Ms Waugh dated 21 October 2009, Mr Wilson had declined to take part in an interview with her for the purpose of preparing that report. However, he was informed of his right to a copy of the report when completed and one was offered to him. As to the content of the report it contains little new information compared to the previous psychological report, and concludes that there has been no change in his risk. 6. Given the above circumstances, and the fact that Mr Wilson had seven days to consider the reports, we consider that in practical terms there has been no prejudice or unfairness to him. And, we note, of course, that none is claimed.3 Joseph Constitutional Administrative Law in New Zealand 2 nd ed at paras 21.1-21.5.5.[10] In dismissing the application for habeas corpus in February 2010 I referred to the Court of Appeal decision in Campbell v Superintendent, Wellington Prison 4 and concluded that the Board's assessment of the significance of the breach was sound and that, therefore, no basis to impugn the resulting decision existed. In substance, while a procedural irregularity or error had occurred, there was no resulting unfairness which blighted the Board's decision to continue with the hearing at the scheduled time. [11] Mr McKenzie did not seek to revisit the findings made in the context of the habeas corpus application. Instead, he contended that even if the Board's decision itself could not be impugned (whether in a habeas corpus or judicial review context), nonetheless the fact was there had been a procedural irregularity with reference to compliance with the 14 day rule and this of itself was sufficient to warrant a remedy in the context of this proceeding. [12] I very much doubt this. To my mind the effect of the Board's ruling concerning non-compliance with s107(4) was that, although there had been a breach, it had no affect on the fairness of the hearing in all the circumstances. Hence, there was no meaningful breach of Mr Wilson's rights, nor for that matter of s27(1) of the Bill of Rights. It follows, in my view, that in substance there is no basis for the intervention of this Court by way of judicial review. But, in case there is room for a different view as to this aspect, I shall briefly consider the remedies sought.What, if any, remedy is appropriate?[13] Although Mr McKenzie did not formally abandon the other relief sought (para [5]), rightly in my view his focus was upon the making of a declaration confirming the breach of s107(4), coupled with an award of damages for a supposed breach of s27(1) of the Bill of Rights Act.4 [2007] NZAR 52 (CA).A declaration[14] Mr McKenzie submitted that at the very least a declaration confirming the breach of the 14 day rule was appropriate. He stressed Mr Wilson's position as a sentenced prisoner, and contended that the failure to accord him his "mandatory statutory right" to 14 days' notice of the reports to be relied upon at the review hearing should be marked by the making of a declaration. This, it was said, would serve to vindicate the breach of Mr Wilson's rights. [15] The jurisdiction to make a declaration is discretionary. Indeed in the leading text, Zamir and Woolf, The Declaratory Judgment 5 the authors stated at p 123:A most important feature of the declaratory judgment is that it is a flexible and discretionary remedy ...I am well satisfied that this is not a situation where the making of a declaration is either appropriate or necessary. [16] The breach of the right was recognised and accepted by the Board at the time. Not only was it recognised, but the procedural irregularity was seriously considered. The Board assessed the impact of the breach and in a well reasoned decision explained why it believed that non-compliance with the 14 day rule should not hinder the scheduled hearing. This, I am satisfied, was vindication enough.Damages[17] Mr McKenzie submitted that a modest award of damages, no more than $500, was appropriate to mark the breach. Mr Powell, however, drew my attention to Combined Beneficiaries Union Inc v Auckland City COGS Committee 6 . In this decision the Court considered the availability of damages as a remedy for a breach of s27(1) of the Bill of Rights Act following a finding of breach in the High Court. For present purposes it is not necessary to refer to the judgment in any detail.5 (3 rd ed, 2002).6 Combined Beneficiaries Union Inc v Auckland City COGS Committee [2009] 2 NZLR 56 (CA).[18] However, the Court referred to various considerations pertaining to an award of damages, two of which are of present relevance:[61] ... Damages for public law wrongs are not normally available at common law and it is not the function of Bill of Rights damages to fill any perceived gap in remedies for such wrongs. We accept the respondents' submission that it would be inappropriate in any event to isolate only breaches of natural justice for the award of damages and not include, for example, damage arising from irrational decisions. The scope of remedies for public law wrongs is a complicated issue and should be tackled in a holistic rather than piecemeal fashion ...And even more in point:[65] ... There is a need to balance the various interests involved. Bill of Rights damages are paid by the state. There is a public interest in ensuring that the state abides by the Bill of Rights Act. Equally, however, the nature of the breach must be such as would shock the public conscience and thus justify the payment of damages out of the public purse. We accept the respondents' submission that this means that payment of damages in respect of what can be classed as relatively minor bureaucratic bungles could not be justified.[19] It follows that awards of public law damages are the exception, rather than the rule. Their award is likely to be rare. The present case does not even come close to one where damages would be appropriate. Even a very modest award would be contrary to principle.Result[20] The application for judicial review is dismissed. No purpose would be served by making an order for costs and, indeed, an order was not therefore sought. ____________________________________________________________________Solicitors: G C Knight Solicitor, Christchurch for Plaintiff (Counsel: Andrew J McKenzie, Barrister) Crown Law, Wellington Central, Wellington for Defendant