Home | Databases | WorldLII | Search | Feedback High Court of New Zealand Decisions

Pahl v New Zealand Parole Board HC Auckland CIV 2010-409-2075 [2010] NZHC 1739; [2010] NZAR 729 (27 September 2010)

Last Updated: 12 October 2010

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CIV-2010-409-002075}

UNDER the Judicature Amendment Act 1972

BETWEEN JOSEPH MARK PAHL Plaintiff

AND THE NEW ZEALAND PAROLE BOARD First Defendant

AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Second Defendant

Hearing: 23 September 2010

Counsel: S W Rollo for Plaintiff

K A L Bicknell for First Defendant

V Casey for Second Defendant

Judgment: 27 September 2010

JUDGMENT OF PANCKHURST J (Reasons in relation to Interim Order)

Introduction

[1] After dismissing an application for the writ of habeas corpus on

21 September 2010, I made a direction that such proceeding be treated as an application for judicial review, which necessitated the joinder of the Parole Board as a party. Subsequently, Mr Rollo sought an interim order pursuant to s8 of the Judicature Amendment Act 1972 to secure the release of Mr Pahl from prison pending determination of the recall application which has been filed with the Parole Board. I was advised that a review of the Board’s decision to make an interim recall order was pending. I declined to consider the interim order application until the outcome of the review was known.

[2] To keep the matter under review I directed the convening of a telephone conference with counsel on 23 September at 9.00 am. At that conference,

JOSEPH MARK PAHL V THE NEW ZEALAND PAROLE BOARD AND ANOR HC CHCH CIV-2010-409-

002075 27 September 2010

Ms Bicknell, counsel for the Parole Board, confirmed that the review would be determined that day or on 24 September at the latest. In the event, a review decision was delivered later on the morning of 23 September. The review was declined.

[3] Later on 23 September there was a further telephone conference with counsel. Ms Bicknell indicated that the recall application itself could be heard on

28 or 29 September. Otherwise, she indicated that the Parole Board abided the decision of the Court in relation to the making of an interim order.

[4] Ms Casey, in anticipation of this further telephone conference, filed brief submissions in opposition to the order sought on Mr Pahl’s behalf. Later that afternoon I determined to make an interim order, the terms of which were contained in a minute of the Court provided at about 5.00 pm. The minute recorded my commitment to provide reasons for the decision as soon as possible.

The approach to interim orders

[5] Section 8(1) relevantly provides:

8 Interim orders

(1) Subject to subsection (2) of this section, at any time before the final determination of an application for review, and on the application of any party, the Court may, if in its opinion it is necessary to do so for the purpose of preserving the position of the applicant, make an interim order for all or any of the following purposes:

......

(c) Declaring any licence that has been revoked or suspended in the exercise of the statutory power, or that will expire by effluxion of time before the final determination of the application for review, to continue and, where necessary, to be deemed to have continued in force.

[6] In substance, I was of the view that the effect of the grant of the warrant to arrest and detain Mr Pahl, upon the making of an interim recall order, was to revoke the release licence dated 25 January 2001, by which he was originally released back into the community although still subject to a life sentence. Accordingly, by minute I declared that the warrant to arrest and detain was discharged, so that the release

licence continued in force pending determination of the substantive recall application by the Board.

[7] With regard to the approach to an interim order, the observations of Richardson J in Carlton and United Breweries Limited v Minister of Customs [1] apply:

Section 8 of the Judicature Amendment Act 1972 does not mandate any particular approach to the statutory test of whether an interim order is necessary for the purpose of preserving the position of the applicant. The legal answer must depend on an assessment by the Judge of all the circumstances of the particular case. Clearly the nature of the review proceedings will be material. So will the character, scheme and purpose of the legislation under which the impugned decision was made. And appropriate weight must of course be given to all the factual circumstances including the nature and prima facie strength of the applicant’s challenge and the expected duration of an interim order. Nor should the residual discretion under s 8 be circumscribed by reading qualifications into the broad language of the section.

[8] I was also influenced by an observation of the Court of Appeal in Manuel v

Superintendent of Hawkes Bay Regional Prison [2] at [49]:

... If not, they [arguments in a habeas corpus context] must be held over for evaluation in judicial review proceedings. In such proceedings, an application for interim relief (including release from custody) would be dealt with urgently and the Judge dealing with such an application would be in a position to give directions as to the future conduct of the litigation to ensure prompt substantive determination.

The prima facie strength of the judicial review challenge

[9] To my mind this was the first consideration in deciding whether an interim order was appropriate in this case. The central issue in this proceeding is whether there was evidence before the decision-maker upon which he could, upon reasonable grounds, have been satisfied that Mr Pahl posed an undue risk to the safety of the community, so that the making of an interim recall order pursuant to s 62(1) of the Parole Act 2002 was justified. This was also the core issue in the habeas corpus proceeding. In that context I was not persuaded that the warrant was impeachable under the Habeas Corpus Act 2001.

[10] However, the reasons which I gave in that context do, in my view, demonstrate that there is a serious question to be determined in an administrative law setting as to whether the decision is illegal (on account of the absence of evidence to support it), unreasonable or irrational. One, or more, of these contentions seem to me to be seriously arguable.

The opposition to an interim order

[11] The submissions in opposition filed by Ms Casey set out the grounds as follows:

2.1 Interim orders under s 8 of the Judicature Amendment Act 1972 require an arguable case that the decision under challenge is unlawful in administrative law terms. The basis put forward by the applicant for unlawfulness is that the decision reached is irrational, in the sense that no reasonable Panel Convenor could have reached that decision. The threshold for such a finding is necessarily high.

2.2 The further evidence put forward by the applicant does not affect the lawfulness of the interim recall decision, and is strictly irrelevant to the application for judicial review of that decision.

2.3 The order sought would override (now) two decisions of the Parole Board that there is sufficient evidence to be satisfied that the applicant poses an undue risk.

2.4 The effect of an interim order directing release of applicant would be that the Court in the context of an interim orders hearing would in effect be overriding the Board’s decision and directing the Board as to the result that it should have reached.

2.5 This outcome, directing the result of a decision, would be very unusual in even a fully argued judicial review, where the more usual remedy would be for the decision to be set aside and referred back to the decision maker for reconsideration.

2.6 The effect of the review decision this morning under s 67 of the Parole Act 2002 is that the decision maker has already reconsidered the decision, and confirmed the correctness of it. The Board is clearly of the view that the evidence before it is sufficient to meet the statutory test of undue risk.

Evaluation

[12] I accept the contentions contained in para 2.1, including in particular the observation that the threshold for intervention of the Court is necessarily high. That said, I have set out in a previous section of this judgment my assessment of the strength of the plaintiff’s case. I remain of the view that the intended grounds are seriously arguable.

[13] With reference to para 2.2 I again accept that the affidavit evidence adduced by Mr Pahl and on his behalf in the habeas corpus proceeding is irrelevant to the core question raised by way of judicial review. Of necessity the focus is upon the evidence which was available to the decision maker and whether that evidence was capable of satisfying the undue risk test. However, that inquiry fell to be made in light of the circumstance that the main events which led to the recall application occurred about nine and a half years after the plaintiff’s release from prison. This contextual circumstance is, I think, relevant and is available without the need to have regard to the substance of the evidence adduced after the interim recall decision.

[14] Paragraphs 2.3, 2.4, 2.5 and 2.6 can be considered together. I accept that the interim order does, in effect, override two decisions of the Parole Board. But in my view the initial and the review decisions of the Board provide no obvious answer to the ground of challenge which is relied upon in a judicial review context. In short, the fact of two decisions does not necessarily demonstrate that the conclusion reached was one which was available on the basis of the evidence provided to the Board.

[15] Of course the effect of the interim order is to override the Board’s decision and to authorise Mr Pahl’s release back into the community pending the substantive hearing. I have already explained my perception as to the impact of the interim order in terms of s8(1)(c) of the Judicature Amendment Act (see [6]). The Court of Appeal judgment in Manuel contemplated this very result and in a context such as the present. Where the liberty of a subject is at stake, even if that person is sentenced to a life term, this Court must be vigilant. And where the evidence relied

upon to satisfy a statutory requirement is seriously open to challenge, as I judge to be

_{the case here, the making of an interim order is in my view justified.}

Solicitors:

Lane Neave, Christchurch for Plaintiff

Crown Law, Wellington for First Defendant (Ms K Bicknell) and Second Defendant (Ms V Casey)

[1] Carlton and United Breweries Limited v Minister of Customs [1986] 1 NZLR 423 (CA) _{at 430-431.}

[2] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA).