Rapist Mark Chisnall in Supreme Court over public protection orders as Crown appeals

The Crown argued that public protection orders were therapeutic. Photo / Mark Mitchell

Warning: This story discusses rape and sexual harm and may be distressing.

A rapist is fighting for the rights of offenders convicted of violent and sexually violent crimes who are subject to public protection orders, which effectively control prisoners even when their sentence has ended.

The precedent-setting case is in the Supreme Court after the Crown challenged a Court of Appeal ruling that the public protection order imposed on convicted child rapist Mark David Chisnall breached the Bill of Rights because it was a second penalty.

The Crown said the orders, which control where prisoners live and restrict their travel, were aimed at offenders who arrived at the end of their sentence but their risk to the public had not been reduced by treatment.

Chisnall committed his first rape at a Taranaki park in 2001 when he was aged 14, and was jailed for eight years in 2006. He was then jailed for a further three years for another crime in 2009.

He 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.

Despite his sentence being due to end in 2016, Chisnall was living in a residential lockdown facility on the grounds of Christchurch Men’s Prison due to the public protection order.

The rare order was granted by the High Court at Auckland at the request of Corrections. It allows offenders considered high risk to be indefinitely held at a secure facility.

Chisnall won the right to have his public protection order removed by the Court of Appeal in August last year.

It was granted so Chisnall could seek rehabilitation and reintegrate into society while protecting the public from potential harm.

But Chisnall successfully argued the order was in breach of his human rights, going against the principles guaranteed by the New Zealand Bill of Rights Act.

The Court of Appeal overturned the order despite Chisnall accepting he presented a high risk of - but not a very high risk of imminent - serious sexual offending.

At that hearing, his lawyer Dr Tony Ellis submitted that an extended supervision order (ESO) with intense supervision would be sufficient.

The Court of Appeal made its decision after a 2021 decision found special orders used to indefinitely hold offenders considered “a high risk of imminent serious sexual or violent offending” were inconsistent with the Act.

But the declarations made by the Court of Appeal last year, specifically that the public protection and extended supervision orders were inconsistent with the Bill of Rights, were at the heart of the Supreme Court appeal.

On Monday, Solicitor-General Una Jagose argued public protection orders were therapeutic and highly individualised regimes and the threshold was high for a person considered a risk to be placed under such an order.

However, she conceded under questioning the orders were penal in nature.

The Supreme Court heard a cross-appeal from Chisnall.

Ben Keith, on behalf of Chisnall, said his client stood by the assessment that the order went against the Act as less punitive options were available that weren’t taken in his client’s case.

Keith submitted the declarations made by the Court of Appeal should be upheld and any decision made by the courts should be consistent with the legislation.

Chief Justice Helen Winkelmann, and Justices Susan Glazebrook, Kate O’Regan, Joe Williams, and Stephen Kos criticised the lack of evidence supporting the Solicitor-General’s argument, raising the fact punitive measures should be “minimally impairing” to be in line with the Act.

The court would hear from Andrew Butler, on behalf of the Human Rights Commission, today.