Ericson v New Zealand Parole Board [2018] NZHC 3042 (22 November 2018)

Last Updated: 28 November 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-176 [2018] NZHC 3042

BETWEEN	JOHN FREDERICK ERICSON Applicant
AND	NEW ZEALAND PAROLE BOARD Defendant

Hearing:	1 August 2018
Appearances:	M Starling and N R Wham for Applicant M J McKillop Counsel Assisting
Judgment:	22 November 2018
Reissued:	23 November 2018

JUDGMENT OF CLARK J

Introduction

[1] In this judgment I provide my reasons for deciding not to determine Mr Ericson’s application for judicial review.

Background

[2] Mr Ericson was serving a sentence of life imprisonment for the murder of his wife in 1999. He first appeared before the Parole Board in 2009. He was declined parole then, and had been ever since. Mr Ericson challenged a number of the Board’s decisions, including by way of judicial review, and he continued to challenge his conviction and sentence by way of applications for habeas corpus.¹

1. Nineteen judgments have been issued by the High Court, Court of Appeal and Supreme Court in relation to Mr Ericson’s challenges to his incarceration.

ERICSON v NEW ZEALAND PAROLE BOARD [2018] NZHC 3042 [22 November 2018]

[3] Mr Ericson was last declined parole on 27 September 2017. The Board considered that the significant progress in Mr Ericson’s attitude and behaviour over the previous 12 months needed to be viewed in the context of his obsessive behaviour in the 16 years following the murder. Mr Ericson also needed to demonstrate he could deal appropriately with challenging situations. The Board could not be satisfied the risk Mr Ericson posed was other than undue and declined parole. The Board noted that Mr Ericson would be considered for parole in September 2018.

[4] On 1 August 2018, I heard Mr Ericson’s application for judicial review of the Parole Board’s decision and reserved my decision.

[5] Subsequently, it came to my attention that Mr Ericson had been granted parole on 5 September 2018. On 18 October 2018, I issued a minute indicating I considered the issue raised by Mr Ericson’s application for judicial review to be moot and that it was inappropriate to proceed to issue a judgment purporting to determine a claim which, practically speaking, was resolved. I provided my reasons for taking that view and invited counsels’ response.

[6] For Mr Ericson, Mr Starling submitted that for the following reason the issues were not moot:

(a) The Parole Board’s decision given on 27 September 2017 remains unreasonable especially given its decision on 5 September 2018.

(b) Mr Ericson remains subject to recall for the rest of his life. The 2017 decision will stay on his file and reflect reasoning that Mr Ericson says is unreasonable and which may be applied to further parole decisions if he is recalled to prison.

(c) Mr Ericson sought damages on the basis he spent 12 months more in prison than he should have given the 2017 decision under challenge.

(d) Mr Ericson has legal aid costs to repay now he has been paroled and a successful decision would cover those costs.
(e) The issues argued have relevance for other cases especially given how long it takes to have Parole Board judicial reviews heard and how few meritorious cases make it as far as the High Court.

[7] Mr McKillop, counsel appointed to assist the Court, agreed with the position set out in my Minute of 18 October 2018.

My decision

[8] The doctrine of mootness is part of a general policy that a court may decline to decide a case which raises hypothetical questions, or where the issues have become academic.² That an issue has become moot does not deprive a court of jurisdiction to hear and determine a matter. The court retains a discretion whether to hear a matter, including an appeal. Similarly, the court retains a discretion as to whether to issue a judgment in a matter that has become academic since the hearing.³

[9] One of the factors relevant to a consideration of whether the court should exercise its discretion to decide the merits of a case, despite the underlying issue having been rendered academic, is whether it is worthwhile allocating scarce judicial resources to resolve an issue which has become moot.⁴

[10] Notwithstanding the submissions of counsel which I have carefully considered, I am of the view it is inappropriate to proceed to issue judgment. The bedrock of Mr Ericson’s proceeding is gone. There is no longer any concrete legal dispute. The substantive remedies which were sought in Mr Ericson’s statement of claim are no longer relevant. I note here, that Mr Ericson’s statement of claim does not, in fact, include a claim for damages.⁵

[11] Mr Ericson pleaded error of law as one of his grounds of review. He contended he was not treated on a par with “like offenders”. To the extent it is even possible to engage in such a comparison Mr Ericson’s release on parole renders the point moot.

² Borowski v Canada (Attorney-General) [1989] 1 SCR 342.

³ Baker v Hodder [2018] NZSC 78 at [32].

⁴ At [32](b).

5. It was suggested by Mr Ericson’s counsel (see [6](c) above) that Mr Ericson’s release on parole did not render the issue moot because Mr Ericson sought damages.

[12] The Canadian and New Zealand Supreme Court authorities to which I have referred were decisions given in the context of moot appeals.⁶ I appreciate this is not an appeal. I also appreciate the position is sometimes different in public law cases, and cases which raise a significant issue of general importance beyond the interests of the parties.⁷ While Mr Ericson’s judicial review proceeding engages “public law” issues that factor does not operate, in the circumstances of this case, to override the broad public interest in applying judicial resources to resolving live issues. This Court’s decision could have no practical effect on Mr Ericson’s rights. Nor would it have general importance beyond the interests of the parties to the dispute.

[13] In summary, in the circumstances of Mr Ericson’s release on parole, I consider the Court would be engaged in no more than the inappropriate issuing of an advisory opinion were it to proceed to determine the application for judicial review which, essentially, sought release on parole. Nor does the proceeding involve a question of significant public importance. I see nothing in the circumstances before the Court to warrant an exception to the general policy that courts exercising civil jurisdiction are concerned to settle live disputes and declare subsisting legal rights, not give advisory opinions.⁸

[14] Having decided the application for judicial review is moot I decline to exercise the Court’s discretion to determine its merits. Accordingly, the application for judicial review is dismissed.





Karen Clark J

Solicitors:

Crown Law, Wellington as counsel assisting

⁶ Borowski v Canada (Attorney-General), above n 2, and Baker v Hodder n 3.

⁷ See for example Osborne v Auckland Council [2014] NZSC 67, [2014] 1 NZLR 766.

8. Gouriet v Union of Post Office Workers [1977] UKHL 5; [1978] AC 435, [1977] 3 All ER 70 (HL) applied by the Court of Appeal in Gazley v Attorney-General (1995) 8 PRNZ 313 (CA).