Ericson v Chief Executive of the Department of Corrections

[2019] NZCA 633

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA584/2019
 [2019] NZCA 633

BETWEEN	JOHN FREDERICK ERICSON Appellant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:	14 November 2019
Court:	Courtney, Brewer and Gendall JJ
Appearances:	Appellant in person D G Johnstone for Respondent
Judgment:	10 December 2019 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Brewer J)

Introduction

1. Mr Ericson is serving a sentence of life imprisonment for the murder of his wife.  He was released on parole in September 2018.  He was recalled from parole in March 2019 and has since been held in custody.  On 23 October 2019 Mr Ericson filed an application for habeas corpus which was refused the next day, on the papers, by Nation J.[1]  Mr Ericson appeals that refusal.

Discussion

[1]Ericson v Attorney-General [2019] NZHC 2728.

1. Mr Ericson was entitled to challenge the legality of his detention by applying for a writ of habeas corpus.[2]  He is entitled now to appeal the High Court’s refusal of his application.[3]

   [2]Habeas Corpus Act 2001, s 6.

   [3]Section 16(1).

2. The issue in the High Court, and for us, is whether the respondent has established that Mr Ericson’s detention is lawful.

3. On the face of the record Mr Ericson is lawfully detained:

   (a)He has been convicted of murder and sentenced to life imprisonment.[4]

   (b)His recall from parole was the subject of a final recall order made by the Parole Board on 26 March 2019.

   (c)The Parole Board’s decision was confirmed on review by the Chairperson of the Parole Board on 15 May 2019.

   (d)Mr Ericson’s appeals against the decisions of the Parole Board and its Chairperson were dismissed by Dunningham J on 30 July 2019.[5]

   [4]R v Ericson HC Christchurch T40/60, 19 April 2000.

   [5]Ericson v New Zealand Parole Board [2019] NZHC 1806.

4. Mr Ericson applied for habeas corpus because he thought there was a legal flaw in the process by which he was initially recalled from parole.  Mr Ericson understood it was his probation officer who made the recall application to the Parole Board.  Section 60(1) of the Parole Act 2002 (the Act) empowers the respondent to make a recall application to the Parole Board in respect of an offender who is subject to an indeterminate sentence.  A probation officer can make a recall application only in respect of an offender who is subject to a determinate sentence.[6]

   [6]Parole Act 2002, s 60(2).

5. Nation J held, in effect, that even if the probation officer had, in error, made the application for his recall, that was irrelevant to the issue of whether Mr Ericson is lawfully detained.[7]  It would be a technical error not going to the substance of the order made by the Parole Board, as confirmed on review by its Chairperson and on appeal by the High Court.

   [7]Ericson v Attorney-General, above n 1, at [9].

6. The evidence picture before us is painted more clearly.  Mr Johnstone for the respondent gave us copies of the notice of recall application and the affidavit of Mr Clark in support, both dated 7 March 2019.  As directed, Mr Clark has now filed an affidavit confirming the authenticity of these documents.

7. In short, it was Mr Clark who made the application for Mr Ericson to be recalled from parole.  Mr Clark is not a probation officer.  He is the Regional Commissioner for the Department of Corrections in Christchurch.  He holds a delegation from the respondent to apply under s 60(1) of the Act for an order that an offender who is subject to an indeterminate sentence be recalled to continue serving his or her sentence in a prison.  The delegation was current at the time of his application in respect of Mr Ericson.

8. Mr Ericson acknowledged to us that he has copies of the 7 March 2019 documents.  However, he maintained his submission that the recall was legally without foundation.  He pointed to s 10 of the Corrections Act 2004 which prohibits the respondent from delegating the power to make an application under s 60(1) of the Act “to any staff member of a prison”.

9. As Mr Clark’s affidavit makes clear, he is not a staff member of a prison.[8]

   [8]The term “staff member of a prison” is defined in s 3 of the Corrections Act 2004.  Regional Commissioners, including Mr Clark, do not fall within that definition.

10. Mr Ericson’s final fall-back was to the submission that the power granted by s 60(1) of the Act to the respondent to make a recall application in respect of an offender who is subject to an indeterminate sentence is one that cannot be delegated.  We do not accept that submission.  Section 41 of the State Sector Act 1988 confers on the respondent as Chief Executive a broad power of delegation to a Public Service employee.  Mr Clark is clearly a Public Service employee and the only applicable constraint on delegation is the one in s 10 of the Corrections Act to which we have already referred.

11. The respondent has established that Mr Ericson is lawfully detained.  Accordingly, we do not need to decide whether Nation J was correct to hold that any error in the initial recall procedure would not invalidate the subsequent decisions granting the application for recall and confirming it.  

Result

1. The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent