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Mass murderer alleges bias, succeeds in challenge to Parole Board decision

3 May 2024

| Author: Anna Longdill

Application for judicial review of decision of Parole Board denying mass murderer parole – Parole Act 2002, s 118   –  duty to avoid actual or perceived bias  –  did prior involvement by a psychiatrist member of the board with the applicant create an appearance or perception of bias? – was there an effective waiver by the applicant?

Ratima v New Zealand Parole Board [2024] NZHC 613 per Preston J

 

Raymond Ratima murdered his three children and four members of his extended family in 1992. He was sentenced to life imprisonment (and lesser concurrent terms for killing an unborn child and the attempted murder of another extended family member).

Professor Philip Brinded was the director of the Regional Forensic Psychiatric Service in 1992. He prepared three psychiatric reports on Ratima for the court in 1992, addressing fitness to plead, insanity, mental state at the time of offending and future dangerousness.

The three Brinded reports are part of Ratima’s Parole Board file.  Ratima became eligible for parole in 2002. From 2002 to 2022, he has appeared before the board (and been declined parole) on 14 occasions, most recently in October 2022.

Brinded sat as a member of seven Parole Boards which considered Ratima for parole, between 2006 and 2021.  Ratima was unrepresented for three of these hearings and represented by different counsel for the other four hearings.  There is no record indicating any objection to Brinded’s involvement at these hearings. But nor was there any indication that the issue of apparent bias was raised at any time.

The board, which declined Ratima parole in October 2022, comprised the board chairperson, Brinded and two other members.  There was no notification to Ratima (or his counsel) of the panel membership ahead of the hearing.

The issue of apparent bias was not raised by the chairperson or Brinded at the outset of the hearing. While questioning Ratima, Brinded did refer to his earlier involvement in writing the three reports.  No objection was raised to his participation as a member of the panel at that point.

After the board declined parole, Ratima exercised his right of review under s 67 Parole Act 2002 and raised the issue of apparent bias. The reviewer described the invariable practice of the board where there had been prior involvement by a board member with an offender for the matter to be initially raised with the offender and counsel, and unless the offender was “comfortable with” the panel member concerned participating, he or she would stand aside.  This practice did not occur.

Ratima applied for judicial review of the board’s October 2022 decision to decline parole, arguing that there was a breach of natural justice by the inclusion of Brinded on the panel. This argument was the focus of the case.

Ratima also argued that the decision wrongly took into account irrelevant information and/or was unreasonable, having regard to the manner in which the board conducted the hearing.

 

Applicable principle: Parole Act 2002, s 118   – duty to avoid actual or perceived bias – did prior involvement by a psychiatrist member of the board with the applicant create an appearance or perception of bias? – was there an effective waiver by the applicant?

 

Held: The application for judicial review is allowed.  There was a breach of natural justice arising from Brinded’s inclusion on the panel which was not waived by Ratima.  He is entitled to a re-hearing before a differently constituted board, not including Brinded. (Ratima’s other arguments of irrelevant considerations and unreasonableness were rejected).

 

Note: The chairperson of the Parole Board has issued a memorandum to the profession (attached), advising that the result of the decision appears to have much wider implications.  Judicial members of the board will have dealt with offenders appearing before it (including in bail, judge- alone trial, sentencing and appellate matters) and psychologist members of the board may have seen offenders in the past professionally.

The Parole Board is now in the process of trying to identify all analogous situations so that the Chairperson can decide whether there could be a perception of bias, and whether the member should or should not sit on any particular hearing.  This will be quite a difficult process and could disrupt or require the adjournment of Parole Board hearings.

 

Ratima v Parole Board

Ratima Memo

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