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Attorney-General v Smith

Attorney-General v Smith

Case [2018] NZCA 24 1 March 2018

Freedom of Expression

Rights of Prisoners

Proportionality Analysis

Human Rights Law

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA187/2017
[2018] NZCA 24

BETWEEN	THE ATTORNEY-GENERAL Appellant
AND	PHILLIP JOHN SMITH Respondent

Hearing:	26 September 2017
Court:	Kós P, Cooper and Asher JJ
Counsel:	U Jagose QC, Solicitor-General and V McCall for Appellant T Ellis and G Edgeler for Respondent
Judgment:	1 March 2018 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

Does a prisoner’s wish to wear a wig engage the right to freedom of expression affirmed by s 14 of the New Zealand Bill of Rights Act 1990?[1]
[1]Herein “the Act”.
A prison manager revoked the prisoner’s permission to wear his wig when he was returned to custody after absconding while on temporary release. In the High Court Wylie J concluded that the prisoner’s wish to wear his wig while in prison engaged s 14 of the Act:[2]
14 Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

The Judge also concluded that the process adopted by the prison manager was erroneous. He should have acknowledged the prisoner’s right to freedom of expression and set out, “albeit briefly”, why he had reached the conclusion the limitation on that freedom — removal of the wig was justified under s 5.

[2]Smith v Attorney-General on behalf of Department of Corrections [2017] NZHC 463, [2017] 2 NZLR 704 [Smith v Attorney-General].

The Crown appeals those findings. But there is a preliminary question: is the appeal moot? Following Wylie J’s decision permission to wear the wig was reinstated. The prison does not intend to revoke the permission again if the appeal is allowed. There is no longer a dispute of right between the parties.

Background

The prisoner-respondent, Phillip John Smith, was sentenced to life imprisonment for murder, paedophile offending, aggravated burglary and kidnapping in 1996. He was given a minimum non-parole period of 13 years. He has sought, but been denied, parole.
In 2001 Mr Smith began to lose his hair. Medical treatments were unavailing. In 2012 he sought approval from the prison manager at Auckland Prison to be permitted to possess and wear a wig. He said it would improve his self-esteem and confidence. A psychological assessment supported that claim. It would aid his rehabilitation. It would also protect his scalp from sun exposure in summer. And it would prevent heat loss in winter.
The application was granted by Mr Sherlock, the Prison Director at Auckland Prison. A wig was made. Mr Smith received it in April 2013. It attaches to his scalp with glue and tape. In July 2014 Mr Smith was moved to Spring Hill Corrections Facility. Permission was again granted for possession and use of his wig.
On 6 November 2014 he was released for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Attorney-General v Smith

Details

AGLC: Attorney-General v Smith [2018] NZCA 24
Case: [2018] NZCA 24
Decision Date: 1 March 2018 at 10 am

CaseChat Overview and Summary

In the case of Attorney-General v Smith, the Court of Appeal was asked to consider whether a prisoner's wish to wear a wig while in prison engaged the right to freedom of expression under section 14 of the New Zealand Bill of Rights Act 1990. The prisoner, Phillip John Smith, had been denied parole and was serving a life sentence for various offences. He had lost his hair and sought permission to wear a wig to improve his self-esteem and confidence. The prison manager initially granted permission but revoked it after Smith absconded while on temporary release. Smith sought judicial review, and the High Court found that his wish to wear a wig engaged section 14 of the Act and that the prison manager's decision was flawed as it did not acknowledge the right to freedom of expression or set out why the limitation on that right was justified. The Crown appealed the decision, but the appeal was moot as permission to wear the wig had been reinstated and the prison did not intend to revoke it again.

The Court of Appeal addressed the issue of whether Smith's wish to wear a wig engaged the right to freedom of expression, despite the appeal being moot. The court concluded that Smith's action in wearing a wig was not expression for the purposes of section 14 as it did not convey any meaning, ideas, or content to third parties. The court held that freedom of expression must involve an attempt to convey meaning to another, and behaviour communicating nothing of meaning should not engage section 14 rights analysis. The court found that wearing a wig to address feelings of low self-esteem and self-confidence was not expression protected by section 14. The appeal was allowed, and the court made no order for costs.

Orders