R v Smith - [2023] NZHC 409

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 A third charge of sexual violation was withdrawn before it was put to the jury.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…

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 R v Smith

Details

AGLC: R v Smith [2023] NZHC 409
Case: [2023] NZHC 409
Decision Date: 6 March 2023

CaseChat Overview and Summary

The case of R v Smith involved an application by NZME Publishing Limited to access certain court documents relating to Phillip John Smith's trial, conviction, and sentence for serious sexual offences and murder. The documents were sought to defend defamation proceedings brought against NZME by Smith. Smith had previously been convicted of multiple charges including sexual violation, indecent assault, performing an indecent act, murder, burglary, and kidnapping. Smith had applied for access to specific documents related to his trial, which were granted to him subject to certain conditions. NZME's application sought further documents to adequately defend the defamation proceedings. The court considered the relevant rules and principles governing access to court documents, particularly in relation to the protection of privacy and open justice. The court found that NZME had the right to access certain documents such as the charging documents, Police summary of facts, and counsel submissions. However, access to other documents such as the notes of evidence of other witnesses was denied due to privacy concerns. The court granted NZME access to certain documents subject to conditions that names of complainants, victims, witnesses, or participants could not be published and the documents could not be used for any purpose other than stated in the application. A copy of the judgment was directed to be sent to Smith.

Orders