Historic human rights court ruling to be appealed by the Crown and child rapist

The Supreme Court has ruled a historic decision finding the ongoing incarceration of a child rapist for public safety breached the principles of the Bill of Rights and can be appealed. Photo / NZME

An historic court ruling which declared a public safety law potentially keeping high risk offenders in custody for life breached the New Zealand Bill of Rights is set to be appealed.

Last year convicted child rapist Mark David Chisnall argued his ongoing incarceration, well beyond his sentence expiry in 2016, went against the principles guaranteed by the Bill of Rights Act.

The Court of Appeal agreed with Chisnall and in November 2021, ruled special orders used to indefinitely hold offenders considered a "high risk of imminent serious sexual or violent offending" were inconsistent with the act.

At the time human rights lawyer Tony Ellis described the ruling, which effectively meant people in New Zealand who were supposed to be locked up for the rest of their lives shouldn't be, as "history making" and a significant advancement for their human rights.

Chisnall, who committed his first rape at a Taranaki park when he was aged 14, in 2001, has remained in a residential lockdown facility on the grounds of Christchurch Men's Prison due to a public protection order (PPO) granted in 2016.

The Supreme Court of New Zealand, last week, ruled November's Court of Appeal decision could be challenged by both the Crown and Chisnall.

The Crown seeks to appeal the declaration PPO's and extended supervision orders (ESO) were inconsistent with the Bill of Rights while Chisnall claims the orders were responsible for significantly more breaches of that legislation than the court ruled.

Meanwhile new legislation, the New Zealand Bill of Rights (Declarations of Inconsistency) Amendment Bill, which places an obligation on Parliament to consider, and if they think fit respond to, any declaration of inconsistency made under the New Zealand Bill of Rights Act 1990 or the Human Rights Act 1993, is currently before Parliament.

The PPO was granted by the High Court at Auckland in 2016 to allow Chisnall to rehabilitate and reintegrate him into society while protecting the public from harm he might cause in the future.

Chisnall, who also has convictions for the rape of an 8-year-old girl and a woman in her 20s in Whanganui, as well as sexual assaults of a 7-year-old boy and a 20-year-old woman, has been fighting the order ever since.

Following a string of legal challenges the order was eventually overturned by the Court of Appeal in October 2019, however the High Court at Auckland found it was warranted and reimposed the order in January 2021.

In April 2022 Chisnall again sought to have the order quashed by the Court of Appeal but was open to the High Court being directed to order a less restrictive ESO with intense supervision for 12 months.

Imposing an ESO would allow Chisnall to stay at a residential facility outside prison fences, albeit perhaps with an electronic ankle bracelet, and allow him to work towards his goal of getting a job.

If he didn't make any progress while on the ESO for 12 months a new application could be made for a PPO.

The court reserved its decision.