Phillip John Smith v Attorney General - [2018] NZSC 40

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 17/2018
[2018] NZSC 40

BETWEEN	PHILLIP JOHN SMITH Applicant
AND	ATTORNEY-GENERAL Respondent

Court:	William Young, O’Regan and Ellen France JJ
Counsel:	Applicant in person U R Jagose QC and V McCall for Respondent
Judgment:	7 May 2018

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

The applicant is serving a life sentence for murder. While serving this sentence he lost his hair. In 2012 he was granted permission from the manager at Auckland prison to wear a hairpiece. In early November 2014, he escaped custody and flew to South America. He was arrested in Brazil and eventually returned to New Zealand (and to Auckland prison) on 29 November 2014. On 1 December 2014 the prison manager revoked the applicant’s permission to retain and wear his hairpiece.
The applicant sought judicial review of that decision.[1] He alleged: (a) a breach of natural justice; (b) failure to take into account s 14 of the New Zealand Bill of Rights Act 1990 (NZBORA) (which affirms freedom of expression); and (c) a breach of his rights under s 23(5) of the NZBORA, to be treated with humanity and respect for inherent dignity. On these grounds, the applicant sought declarations, an order quashing the decision to revoke permission for his hairpiece, and damages for the breach of s 23(5).
[1]Smith v Attorney-General on behalf of Department of Corrections [2017] NZHC 463, [2017] 2 NZLR 704 (Wylie J).
In the High Court, Wylie J addressed only the argument based on s 14. This section provides:
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.

Wylie J said that when the applicant was wearing a hairpiece, he was “trying to say – this is who I am and this is how I want to look”.[2] He therefore concluded that by wearing a hairpiece the applicant was exercising his right to freedom of expression. Wylie J found that: (a) freedom of expression was a mandatory consideration which the prison manager failed to take into account when deciding whether to revoke the hairpiece; and (b) the prison manager failed to consider whether revoking the hairpiece would be a justified limitation on that freedom.[3] Wylie J made a declaration to that effect and also quashed the prison manager’s decision.[4]

[2]At [70].

[3]At [88].

[4]At [98]–[99].

After the High Court judgment, the prison manager gave the applicant permission to have and wear the hairpiece. The Attorney-General nonetheless appealed to the Court of Appeal which heard and determined the appeal despite there no longer being a live issue between the parties.[5] We note that at the hearing of the appeal, the Attorney-General did not seek to justify the withdrawal of permission to wear the hairpiece and it was accepted the decision “may well have been vulnerable on other administrative law grounds”.[6] We also note that…

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 Phillip John Smith v Attorney General

Details

AGLC: Phillip John Smith v Attorney General [2018] NZSC 40
Case: [2018] NZSC 40
Decision Date: 7 May 2018

CaseChat Overview and Summary

In Phillip John Smith v Attorney General, the applicant, serving a life sentence for murder, sought to appeal a decision of the Court of Appeal that found his wearing of a hairpiece did not engage the right to freedom of expression under s 14 of the New Zealand Bill of Rights Act 1990. The applicant had initially been permitted to wear a hairpiece but had this permission revoked following an escape and subsequent return to prison. He sought judicial review of the decision, claiming a breach of natural justice and failure to take into account his rights under ss 14 and 23(5) of the Act. The Court of Appeal allowed the appeal, finding that the wearing of a hairpiece did not amount to expressive conduct as it did not convey meaning to others. The applicant sought leave to appeal to the Supreme Court of New Zealand, arguing that the Court of Appeal had misapplied s 14 by limiting its scope.

The legal issues before the Court were whether the Court of Appeal had correctly interpreted s 14 of the New Zealand Bill of Rights Act 1990, and whether the applicant's wearing of a hairpiece constituted expressive conduct for the purposes of that section. The Court also considered whether the case was moot given that the applicant was now permitted to wear a hairpiece. The Court found that while the question of whether expressive conduct is limited to conduct that conveys meaning is of public importance, it did not consider the answer to this question decisive in the present case. The Court also noted that the case had become moot, as there was no longer a live issue between the parties since the applicant was now allowed to wear a hairpiece. The Court further found that it would not be practicable to address the potential infringement of s 23(5) of the Act, which guarantees treatment with humanity and respect for inherent dignity, in the absence of findings of fact from the lower Courts.

The Supreme Court of New Zealand dismissed the application for leave to appeal, holding that the Court of Appeal's decision was not likely to be decisive of the outcome, and that the case had become moot. The Court declined to make any order as to costs given the history of the litigation and the applicant's circumstances.

Orders