R v Smith
[2023] NZHC 409
•6 March 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-1996-485-008631
T No.23/96 [2023] NZHC 409
THE QUEEN v
PHILLIP JOHN SMITH
Hearing: On the papers Counsel:
T C Goatley and K M Wilson for Applicant
Judgment:
6 March 2023
JUDGMENT OF VAN BOHEMEN J
[Application for access to Court documents]
This judgment was delivered by me on 6 March 2023 at 4:30 pm
Registrar/Deputy Registrar
……………………………..
Solicitors
Bell Gully, Wellington Copy to: Phillip John Smith
R v PHILLIP JOHN SMITH [2023] NZHC 409 [6 March 2023]
[1] NZME Publishing Limited (NZME) has applied for access to certain Court documents relating to the trial, conviction and sentence of Phillip John Smith on charges of sexual offending. The purpose of the application is to defend defamation proceedings brought against NZME by Mr Smith.
Background
[2] In July 1996, Mr Smith was convicted on two counts of sexual violation of a young boy, two counts of indecent assault on the boy, two counts of performing an indecent act on the boy, the murder of the boy’s father, burglary and the kidnapping of the mother and younger brother of the young boy.
[3] Mr Smith pleaded guilty to the kidnapping charges. He was found guilty by a jury on the other charges.
[4] Mr Smith was found not guilty of the attempted murder of the young boy. A third charge of sexual violation was withdrawn before it was put to the jury.
[5] In August 1996, Grieg J sentenced Mr Smith to life imprisonment with a minimum term of imprisonment of 13 years.
[6] Mr Smith subsequently gained a level of public notoriety after escaping from prison and absconding to South America. He was arrested in Brazil and returned to New Zealand and to prison where he is still serving his sentence. He has remained the subject of comment in the media, including after he unsuccessfully sought to review a decision by prison authorities revoking an authorisation that he be issued with a hairpiece.1
Mr Smith’s application for access to documents
[7] In August 2022, Mr Smith applied for access to certain Court documents relating to his trial. In his application, Mr Smith said that the purposes of the request were to respond to media reports that, according to Mr Smith’s application, described
1 Smith v Attorney-General [2017] NZHC 463; Smith v Attorney-General [2018] NZCA 24; Smith v Attorney-General [2018] NZSC 40.
him as a “rapist” and as a “child rapist” and to clarify his understanding of the numbers of charges of sexual violation of which he had been convicted.2
[8]Specifically, Mr Smith requested the following documents:
(a)the charging documents;
(b)the transcript of the request by the Crown Prosecutor withdrawing a charge of sexual violation;
(c)any written record of the withdrawal of the charge;
(d)the witness statement of a victim of Mr Smith’s sexual offending;
(e)the transcript of the victim’s evidence.
[9] In September 2022, Mr Smith advised the Court that he had issued defamation proceedings against NZME.
Decision on Mr Smith’s application
[10]By minute dated 4 October 2022, Churchman J granted Mr Smith access to:
(a)the original charging documents;
(b)the indictment; and
(c)the portion of the notes of evidence from Mr Smith’s trial in which the victim gave evidence.
[11] Churchman J directed that Mr Smith could have access to these documents on the conditions that Mr Smith did not:
2 Mr Smith was initially charged with three counts of sexual violation (the 7th, 9th and 12th counts in the indictment). It is noted on the indictment that the 9th count was dismissed in accordance with s 347 of the Crimes Act 1961. In his summing up to the jury, Grieg J directed the jury to ignore the 9th count because it was no longer in existence.
(a)publish any names or identifying particulars of any complainants, victims, witnesses or participants; or
(b)copy or further disseminate these documents or use them for any purpose other than stated in his application.
NZME application
[12] In its application dated 3 November 2022, NZME records its understanding of the sexual offending charges of which Mr Smith was convicted. NZME’s counsel say that, as part of initial disclosure in the defamation proceedings, Mr Smith has provided NZME with the following documents:
(a)A redacted copy of the indictment;
(b)Churchman J’s minute of 4 October 2022;
(c)A redacted copy of Mr Smith’s criminal record.
[13] NZME’s counsel say these partial documents are not sufficient to properly respond to and defend the defamation proceedings. NZME seeks the following documents to the extent they concern Mr Smith’s sexual offending:
(a)the charging documents;
(b)the Police summary of facts;
(c)any notes of evidence;
(d)Crown and defence counsel submissions at Mr Smith’s trial and at his sentencing;
(e)any judgment, order or minute from the Court given in the proceeding; and
(f)the sentencing notes.
Discussion
[14] Under r 4 of the Senior Courts (Access to Court Documents) Rules 2017 (Rules):
(a)a criminal proceeding includes the sentencing of a defendant;
(b)a “substantive hearing” in relation to a criminal proceeding means from the start of a trial to the end of the trial, whether by acquittal, a finding of guilt, conviction, dismissal, or withdrawal of the charges.
[15] Under r 8(3), every person has the right to access the permanent court record under pt 7 of the Criminal Procedure Rules 2012 CPR) and any judgment, order or minute of the court, including any records of the reasons given by a judge, and a judge’s sentencing notes.
[16] Under rr 7.1 and 7.2 of the CPA, the court record must include a description of the charges against a defendant, the dismissal and withdrawal of any charge and the determination of any charge.
[17] It follows that NZME has the right to access the documents in [13(b) and (d)] above.
[18] Rules 7.1 and 7.2 of the CPA do not require the Court record to include Police summaries of fact or counsel submissions. I have reviewed the Court file for Mr Smith’s trial. It does not include a Police summary of facts in relation to Mr Smith’s sexual offending. Nor does it include submissions from counsel at the trial or at Mr Smith’s sentencing. There is no ability, therefore to provide access to the documents in [13(a), (e ) and (f)] above.
[19] The remaining documents to which NZME seeks access are the notes of evidence in [13(c)] above.
[20] Access to the notes of evidence falls for determination under rr 11 – 14 of the Rules.
[21] Under r 11(3), the Registrar must promptly give a copy of the request to the parties to the relevant proceeding or appeal, or to their lawyers. However, r 11(4) provides that a Judge may dispense with that requirement if it would be impractical to require notice to be served.
[22] NZME made its application on 3 November 2022. The application was brought to my attention as Wellington Duty Judge on 22 February 2023. Given that delay and given that NZME are having to prepare to defend Mr Smith’s defamation proceeding, I am satisfied that it would be impractical and not in the interests of justice to delay the NZME application further by requiring the application to be served on Mr Smith. However, this judgment should be brought to Mr Smith’s attention.
[23] Rule 11(7) provides that a Judge may grant or refuse request and may grant access subject to any conditions the Judge thinks appropriate.
[24] Rule 12 sets out the matters which a Judge must consider, to the extent relevant, when determining a request for access. They include:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
(h) any other matter that the Judge thinks appropriate.
[25] Rule 13 provides that, in applying r 12 after the substantive hearing, the Judge must have regard to the following:
open justice has greater weight in relation to documents that have been relied on in a determination than other documents; but
the protection of confidentiality and privacy interests has greater weight than would be the case during the substantive hearing.
[26] Having regard to the above provisions, I am satisfied that it is appropriate to provide NZME access to the notes of evidence of the victim of Mr Smith’s sexual offending. These are the same notes to which Mr Smith has been given access. I do
not consider it appropriate, however, to provide access to the notes of evidence of other witnesses, including that of the victim’s mother and younger brother.
Decision
[27]I grant NZME access to:
(a)the charging documents for the sexual offending with which Mr Smith was charged, including the annotated indictment, except that I suppress the annotations on the cover page which record the names of the jury panel;
(b)the notes of evidence of the victim of Mr Smith’s sexual offending;
(c)the following judgments and records of reasons given in Mr Smith’s criminal proceeding:
(i)Goddard J’s judgment of 6 June 1996 declining Mr Smith’s application to sever the sexual offending charges from the murder and related charges;
(ii)The Court of Appeal’s judgment of 2 July 1996 dismissing Mr Smith’s application to appeal Goddard J’s judgment;
(iii)Greig J’s summing up to the jury on 15 July 1996;
(iv)Greig J’s sentencing notes of 16 August 1996;
(v)The Court of Appeal’s judgment dated 19 December 1996 dismissing Mr Smith’s appeal against conviction and sentence.
[28]I grant access on condition that NZME do not:
(a)publish any names or identifying particulars of any complainants, victims, witnesses or participants in Mr Smith’s trial; or
(b)use the documents for any purpose other than stated in its application.
[29]I direct that a copy of this judgment be sent to Mr Smith.
G J van Bohemen J
0
3
0