Philip John Smith v The Attorney-General - [2010] NZSC 114

IN THE SUPREME COURT OF NEW ZEALAND
SC 71/2010
[2010] NZSC 114
BETWEENPHILIP JOHN SMITH

Applicant

ANDTHE ATTORNEY-GENERAL

Respondent

Court:Blanchard, Tipping and McGrath JJ
Counsel:T Ellis for Applicant

C J Curran for Respondent

Judgment:8 September 2010

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed with no order for costs.
REASONS
[1]        The applicant, who was convicted of offences that included murder, sexual violation and kidnapping, has been serving a sentence of life imprisonment since 1996. He was classified until 2004 by the Department of Corrections, in a series of decisions, as a maximum security prisoner. Throughout this period he had sought a lower security classification in order to be eligible for transfer to another prison, closer to where his mother lived. In November 2004 his classification was reduced to “high medium”, making him eligible for the transfer. In November 2005 his classification was further reduced to “low medium”.
[2]        Subsequently the applicant brought judicial review proceedings to challenge the lawfulness of his classification during the period prior to 2004. He was unsuccessful in the High Court[1] and his appeal to the Court of Appeal[2] was dismissed. He now seeks leave to appeal to this Court against the Court of Appeal’s judgment.
[1]Smith v Attorney-General HC Wellington CIV 2005-485-1785, 9 July 2008.
[2]Smith v Attorney-General [2010] NZCA 258.
[3]        Eleven proposed grounds are advanced by the applicant for an appeal to this Court. The first three are part of a submission that the Court of Appeal’s hearing of the applicant’s appeal was unfair. They were that objections to Judges sitting had been determined prior to the hearing, that the Court had been hostile to the applicant’s counsel at the hearing and that the presiding Judge, Hammond J, was either actually or apparently biased against the applicant.
[4]        A Judge of this Court ordered that a transcript be prepared of that part of the Court of Appeal hearing that is relevant to these matters. The transcript has been referred to by both counsel in their submissions. Since receiving them we have also sought and obtained the written material that was put to the Court of Appeal prior to its hearing. Neither party objected to this course. Counsel for the parties have made submissions directed to that material. Together with the transcript, the additional material has provided us with some context in addressing the application for leave to appeal.
[5]        Following receipt by the Court of Appeal of the applicant’s written material, the Judges on the panel met and discussed among themselves whether in the circumstances any of them should withdraw. They decided not to do so. The complaint of predetermination is that counsel wished to be heard on these matters orally at the hearing and the procedure followed precluded this. We are, however, satisfied that it was appropriate for the Judges concerned to confer over whether any of them should withdraw from the panel. That is standard practice. It was highly desirable that the Judges…

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.

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Details

Case: [2010] NZSC 114
Decision Date: 8 September 2010

CaseChat Overview and Summary

Philip John Smith, a prisoner serving a life sentence for serious crimes including murder, sought leave to appeal to the Supreme Court of New Zealand against the Court of Appeal's dismissal of his challenge to the lawfulness of his classification as a maximum security prisoner from 1996 to 2004. Smith's classification was eventually reduced, allowing him to be transferred to a prison closer to his mother. He argued that his classification during the earlier period was unlawful and that his constitutional right to a fair hearing was breached. The court had to decide whether there were arguable grounds for an appeal to the Supreme Court based on the Court of Appeal's reasoning and findings.

The court examined eleven proposed grounds for appeal. The first three related to the fairness of the Court of Appeal's hearing, claiming predetermination, hostility, and bias. However, the court found that the judges' pre-hearing conference was standard practice, the exchanges during the hearing did not indicate hostility, and there was no evidence of bias. The court also considered objections to the panel composition based on a judge's prior role as Solicitor-General but found no grounds for appeal on this matter. The court did not address a systemic complaint about the selection process for Court of Appeal panels as it was not raised as a ground for appeal.

Further grounds concerned the admissibility of expert evidence and the use of psychological reports without Smith's fully informed consent. The court found the Court of Appeal's rulings on these matters were orthodox and did not compromise judicial independence or Smith's right to a fair hearing. The court also rejected grounds related to the remedy of expunging references to "psychopath" from Smith's files and the lawfulness of security classification decisions, finding no factual basis for these claims. The court concluded that the proposed appeal was not in the interests of justice.

The Supreme Court dismissed Smith's application for leave to appeal, with no order for costs. The reasoning of the Court of Appeal was upheld, and no arguable grounds for a further appeal were found.

Orders