Attorney-General v Chisnall

Winkelmann CJ, O'Regan, Williams and Kós JJ

(Given by Winkelmann CJ)

1

The respondent (and cross-appellant), Mr Chisnall, has spent much of his adult life in prison or other forms of detention. 1 For some of this time he was serving a sentence of imprisonment, but since his release in 2016 he has been subject to restrictive statutory regimes which can be applied to those who, having committed certain categories of offences in the past, are assessed as posing a high, or very high, risk of further serious sexual or violent offending.

2

This appeal, and cross-appeal, address whether those statutory regimes, the extended supervision order (ESO) and public protection order (PPO) regimes, are consistent with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990 (the Bill of Rights). 2 Orders under the ESO and PPO regimes are not made

at sentencing but rather toward the end of the sentence of imprisonment, and serve the important purpose of protecting the public from recidivist offenders who present a high, or very high, risk of further serious sexual or violent offending. In order to achieve that purpose, an ESO or PPO can be made against a person even when the offence rendering them eligible for the imposition of the order was committed before the regimes (as they apply to the individual) were enacted. 3 In this sense the regimes operate retrospectively — because when the offence was committed the person was not in jeopardy of being subjected to such orders. This is the way in which we use the terms “retrospectively” and “retrospectivity” throughout these reasons. 4

3

Mr Chisnall sought declarations in the High Court that the ESO and PPO regimes are inconsistent with a range of liberty and fair trial rights protected by the Bill of Rights, most notably, the s 26(2) right to immunity from a second penalty for an offence that a person has already been punished for. 5

4

He had some limited success with his application in the High Court. 6 Whata J issued a declaration that the ESO regime was inconsistent with s 26(2) of the Bill of Rights in that it imposed a second penalty, but only insofar as it operated retrospectively — that is, insofar as the qualifying offending was committed before

the relevant part of the ESO regime came into force. 7 The Judge found that the order otherwise could constitute a justified limitation on Mr Chisnall's right not to be subjected to a second penalty. 8 As for the PPO regime, the Judge was satisfied that it was not penal in nature, and therefore did not limit the s 26(2) right. 9

5

Mr Chisnall appealed to the Court of Appeal, maintaining that both the ESO and PPO regimes are inconsistent with s 26(2) irrespective of when the qualifying offence was committed. 10 He also pursued his claims for declarations that the regimes breached other rights that are affirmed in the Bill of Rights and that are detailed in his application. The Attorney-General cross-appealed, claiming that the Judge was wrong to find the ESO regime penal in nature, and so wrong to make any declaration of inconsistency.

6

The Court of Appeal dismissed the Attorney-General's cross-appeal, confirmed the High Court's declaration, and allowed Mr Chisnall's appeal in part, issuing broader declarations. 11 It found that each of the ESO and PPO regimes imposed a second penalty, a limitation upon the s 26(2) right, and one that was not justified for the purposes of s 5. 12 It issued declarations in respect of the ESO regime as it applied to offending committed after the creation of the regime (ie non-retrospectively), and also in respect of the PPO regime. It declined to address the inconsistency arguments in respect of other rights. 13

7

Both parties pursue their respective appeals in this Court. 14 The arguments centre upon the application and effect of provisions of the Bill of Rights, in particular s 4 (enactment not impliedly repealed, revoked, invalid or ineffective by reason only of inconsistency with the Bill of Rights), s 5 (rights and freedoms in the Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society) and s 6 (whenever an enactment can be given a meaning consistent with the rights and freedoms contained in the Bill of Rights, that meaning is to be preferred).

8

The grounds on which Mr Chisnall cross-appeals to this Court are shortly stated. He continues to argue that declarations of inconsistency should be issued for rights not covered by the existing declarations — including the s 22 right to be free from arbitrary detention and the s 9 right to be free from cruel or disproportionately severe punishment. We come on to discuss those rights shortly. 15 There are other aspects of his case on appeal that are helpful to set out at this point. Mr Chisnall has not pleaded or produced evidence as to the detailed effects of these regimes upon him, relying instead upon the wording of the statutory provisions and the effect of their application. He does not challenge that protection of the public from the risk of serious violent or sexual offending is a socially important objective. The primary argument advanced for Mr Chisnall by his counsel is that it is the nature and effect of the regime imposed by the orders that cannot be justified...