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Smith v Attorney-General

Smith v Attorney-General

Case [2019] NZHC 835 16 April 2019

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2269

[2019] NZHC 835

UNDER The Judicature Amendment Act 1972 Part 30 of the High Court Rules

IN THE MATTER

of an application for judicial review

BETWEEN

PHILLIP JOHN SMITH

Applicant

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF

CORRECTIONS
Respondent

……………………………/continued

Hearing:
27 and 28 September 2018; further submissions 3 and

10 October 2018

Counsel:
Appearance:

N Levy and AL Hill for applicant in CIV-2017-485-804 A Todd, H Farquhar and N Fong for respondents in both

proceedings

PJ Smith (via AVL) in CIV-2016-404-2269

Judgment:

16 April 2019

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 16 April 2019 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Cooper Legal, Wellington
Crown Law, Wellington

To: PJ Smith, Wellington

Smith v The Attorney-General [2019] NZHC 835 [16 April 2019]

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CIV-2017-485-804

UNDER Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review of decisions by the respondents about the applicant’s temporary release for the purposes of employment

BETWEEN

HAYDEN JOSEPH TAYLOR

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Respondent

SERCO NEW ZEALAND LIMITED

Second Respondent

CONTENTS

Introduction [1]

Statutory background [8]

The guidelines in issue
The temporary release decision  [17]
Temporary release circulars  [19]
The “release to work” circulars  [20]
Post-circular statistics  [21]

Further facts particular to Mr Taylor’s case [24]

Mr Smith’s claim

Mr Smith’s submissions - summary [30]
Department’s submissions in relation to Mr Smith - summary [36]

Mr Smith’s application - approach  [43]
Unlawful dictation – legal principles  [44]
Unlawful dictation – discussion  [48]

11 November Decision [49]

Temporary release circulars [54]

RTW circulars [67]

Ultra vires as a stand-alone ground of review [75]

Individual decisions [81]
Relief on Mr Smith’s claim [88]

Mr Smith’s application - result [95]

Mr Taylor’s claim [98]

Mr Lightbown’s decision – more detail [99]
Submissions for Mr Taylor - summary [120]

Department’s submissions in relation to Mr Taylor - summary  [123]
Did Mr Lightbown decline Mr Taylor’s RTW application on a blanket
basis that he was a violent offender subject to an indeterminate sentence?     [128]
Did Mr Lightbown fail to consider whether Mr Taylor posed an undue risk to the community if released on RTW, and instead consider the safety
risk more generally and/or in the context of parole?  [135]
Did Mr Lightbown err in taking into account the views of the Parole
Board (which are said themselves to be based on a mistake of fact)?               [138]
Did Mr Lightbown err in failing to consider the view of the High Risk response Team or make his decision on the basis of insufficient
information concerning risk?  [145]

Result and costs [154]

Introduction

[1] Phillip John Smith is serving a life sentence for murder. He became eligible for parole in…

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 Smith v Attorney-General

Details

AGLC: Smith v Attorney-General [2019] NZHC 835
Case: [2019] NZHC 835
Decision Date: 16 April 2019

CaseChat Overview and Summary

Phillip John Smith is serving a life sentence for murder. He became eligible for parole in 2009. In 2013, the Parole Board recommended he be permitted to participate in temporary removals and releases from prison under s 62 of the Corrections Act 2004. On 6 November 2014, Mr Smith was granted a temporary release from prison for 72 hours. That day, he boarded a flight to Chile and fled. He therefore did not return from his temporary release by the due date of 9 November 2014. Mr Smith was eventually apprehended in Brazil and deported back to New Zealand. His escape attracted significant media attention in New Zealand and the Department of Corrections came under public scrutiny and criticism. Mr Smith now applies to judicially review certain guidelines issued by the Department of Corrections. The essence of his application is that the guidelines took a “blanket” approach to applications for temporary release and as a result, unlawfully excluded from consideration for such release certain classes of prisoners statutorily entitled to be so considered. Mr Smith also argues that some of the guidelines unlawfully restricted the purposes for which temporary release could be granted. Mr Smith says the guidelines were thereby ultra vires the relevant empowering provisions in the Act and/or amounted to an unlawful dictation which fettered the discretion of those making decisions on temporary release. The High Court held that the temporary release circulars were unlawful because they directed an impermissible exercise of discretion as to the classes of prisoners eligible for temporary release, inconsistent with the relevant statutory regime. The court held that the Release to Work circulars were unlawful because they directed that applications of a certain class must not be approved. The court made declarations as to the unlawfulness of the circulars. The court held that the 11 November Decision was lawful, but the circulars which followed it were not. The court held that the circulars were “ultra vires” in the broad sense that they went beyond the powers entrusted to the Chief Executive (and his delegates) under the Act.

Orders