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…
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CaseChat Overview and Summary
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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