Slavich v The Queen - [2021] NZSC 34

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 1/2021
[2021] NZSC 34

BETWEEN	PHILLIP JOHN SMITH Applicant
AND	CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	Applicant in person A M Powell and C P C Wrightson for Respondent
Judgment:	21 April 2021

JUDGMENT OF THE COURT

AThe application for leave to appeal is dismissed.
B There is no order as to costs.

____________________________________________________________________

REASONS

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 The Queen

Details

AGLC: Slavich v The Queen [2021] NZSC 34
Case: [2021] NZSC 34
Decision Date: 21 April 2021

CaseChat Overview and Summary

Phillip John Smith, a prisoner, sought leave to appeal a decision of the Court of Appeal upholding the withholding of approval for a journalist's interview with him. The application concerned the application of regulations 108 and 109 of the Corrections Regulations 2005, which prohibit interviews of prisoners without written approval from the chief executive and the prisoner, and provide criteria for determining whether approval should be given. Smith argued that the Court of Appeal erred in allowing the inference of harm to victims to trump his right to freedom of expression and in concluding that the regulations could be applied in a way that was not proportionate to the right to freedom of expression. The Supreme Court was required to decide whether the proposed appeal raised an issue of general or public importance that warranted leave to appeal and whether there was an appearance of a miscarriage of justice. The Court found that there was no such issue and no appearance of a miscarriage of justice. The Court of Appeal had balanced the impact on the guaranteed right against the countervailing considerations of victim concerns and prison management and concluded that withholding approval was not a disproportionate limit on Smith's right to freedom of expression. The Court of Appeal had applied the correct principles in reaching its decision, and Smith's complaints were primarily about the application of those principles rather than the principles themselves. The application for leave to appeal was dismissed, and no order as to costs was made.

Orders