This application for leave to appeal concerns a proposed interview of Phillip Smith, a prison inmate, by a journalist. In issue is the application of regs 108 and 109 of the Corrections Regulations 2005 to the journalist’s request for permission. These regulations:
(a)prohibit the interviewing (defined broadly) of prisoners without the written approval of both the chief executive and the prisoner concerned (reg 108); and
(b)provide criteria for determining whether the chief executive should give approval (reg 109).
The application of these regulations (and similar earlier regulations) has been the subject of previous litigation involving Ahmed Zaoui,[1] Scott Watson[2] and Arthur Taylor.[3] The leading case in New Zealand is the Court of Appeal decision in Taylor. There is also a House of Lords decision.[4]
[1]Television New Zealand Ltd v Attorney-General (2004) 8 HRNZ 45 (CA). The relevant regulations in this case were regs 87 and 88 of the Penal Institutions Regulations 2000.
[2]Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, (2015) 10 HRNZ 505.
[3]Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648.
[4]R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL).
Approval for the proposed interview was first sought in 2017. A decision in May 2018 to withhold approval resulted, in July 2018, in judicial review proceedings. These were settled in October 2018 on the basis that the application would be reconsidered. The outcome of this reconsideration was a further decision, in February 2019, to withhold approval. This was for reasons which came down to likely distress for the applicant’s victims and prison management concerns (particularly in terms of preserving the applicant’s personal safety if the interview were published).
In the High Court, Doogue J set aside the withholding of approval on a basis which made it clear that she expected that, on reconsideration (or more likely perhaps, a further application), approval would be granted.[5]
[5]Smith v The Chief Executive of the Department of Corrections [2019] NZHC 2472.
The Court of Appeal allowed the appeal and upheld the withholding of approval.[6]
[6]Chief Executive of the Department of Corrections v Smith [2020] NZCA 675 (Clifford, Gilbert and Courtney JJ).
In his submissions in support of the application, the applicant contends that:
(a)the Court of Appeal allowed what he called “an inference” of harm to victims to trump his right to freedom of expression and incidentally, that it is wrong to allow victim distress to…

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 Slavich v R

Details

AGLC: Slavich v R [2021] NZSC 34
Case: [2020] NZSC 34
Decision Date: 21 April 2021

CaseChat Overview and Summary

Phillip Smith sought leave to appeal a decision of the Court of Appeal that upheld a decision by the Chief Executive of the Department of Corrections to refuse permission for him to be interviewed by a journalist. The decision was made under the Corrections Regulations 2005, which prohibit interviewing prisoners without written approval of both the chief executive and the prisoner. The Court of Appeal found that the chief executive was justified in withholding approval on the basis of likely distress to victims and prison management concerns. Smith's application for leave to appeal raised several issues, including the Court of Appeal's approach to the right to freedom of expression and the balance between that right and the countervailing considerations.

The Court found that the proposed appeal did not raise an issue of general or public importance warranting leave to appeal. It held that there was evidence that a published interview would cause distress, and it was open to a court to act on inferences as well as direct evidence. The Court of Appeal had approached the case on the basis that the regulations had to be applied consistently with the right to freedom of expression, and it did not preclude a withholding of approval. The Court of Appeal had balanced the impact on the guaranteed right against the countervailing considerations and concluded that withholding approval was not a disproportionate limit on Smith's right to freedom of expression.

The application for leave to appeal was dismissed, and no order as to costs was made. The Court found that the various complaints identified by Smith in relation to this aspect of the case were primarily about application rather than principle. The Court found no appearance of a miscarriage of justice and dismissed the application for leave to appeal.

Orders