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Smith v Attorney-General

Smith v Attorney-General

Case [2017] NZHC 1647 18 July 2017

Standing

Jurisdiction

Judicial Review

Natural Justice & Procedural Fairness

Administrative Law

Constitutional Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-002269 [2017] NZHC 1647

BETWEEN
PHILLIP JOHN SMITH

Applicant

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF CORRECTIONS

Respondent

Hearing: 3 March 2017, last submissions on 15 June 2017

Appearances:

Applicant in person
A F Todd for Respondent

Judgment:

18 July 2017

JUDGMENT OF PALMER J

This judgment was delivered by me on 18 July 2017 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Law, Wellington

And to:
The Applicant

Smith v The Attorney-General on behalf of The Department of Corrections [2017] NZHC 1647 [18 July 2017]

Summary

[1] In November 2014 Mr Phillip Smith escaped from custody in New Zealand and was recaptured in Brazil. In the wake of his escape the Department of Corrections put in place a new temporary release regime which has now, itself, been replaced. There were no reintegrative releases under the temporary regime. The need for the temporary regime was attributed to Mr Smith’s escape. Mr Smith challenges the temporary regime as unlawful. The Crown seeks to strike out the challenge on the ground he lacks the standing to do so.

[2] The requirement of standing in judicial review proceedings has been significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It still exists. Personal standing is concerned with whether a litigant’s personal rights and interests are affected by the decision under challenge. Public interest standing is more concerned with whether the decision under challenge is or may be unlawful. For a judicial review to be struck out on the basis of standing, claims to both personal standing and public interest standing must be so untenable that the court must be certain they cannot possibly succeed. That requires assessment of the litigant’s personal rights and interests, and the merits of the challenge, on the basis the facts pleaded in the statement of claim are true. For that reason, standing will usually be considered in the course of a substantive judicial review proceeding. That allows standing to be assessed in light of the merits of the case which may illuminate the public interest at issue. And it avoids delay. Only rarely is standing likely to be a ground for striking out judicial review proceedings before a substantive hearing.

[3] Here, I consider Mr Smith is sufficiently affected by, and connected to, the decision at issue to have personal standing to bring his claim. Even if he did not, I consider there is sufficient public interest in whether the temporary release scheme was lawful that there would be public interest standing too. I decline the application.

What happened?

Mr Smith’s custody and escape

[4] Mr Smith was sentenced to life imprisonment for murder in 1996. He was also sentenced for a number of child sex offences, aggravated burglary and kidnapping. He was classified as a maximum security prisoner from 1996 to 2004. From 2005 his security classification was periodically lowered. His…

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 [2017] NZHC 1647
Case: [2017] NZHC 1647
Decision Date: 18 July 2017

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Phillip John Smith had the legal standing to challenge the Department of Corrections' temporary release guidelines that were implemented following his escape from lawful custody in 2014. The Crown argued that Smith lacked standing to bring the judicial review proceedings, which was moot because the circulars were no longer in force. Smith opposed the Crown’s application, arguing that the guidelines directly conflicted with the Act and the Regulations and that he was directly subject to them. The court considered that Smith's rights and interests were affected by the guidelines and that the merits of the judicial review were arguable. The court found that Smith's claim to either personal or public interest standing was not so untenable that the proceeding should be struck out. The court declined the application to strike out the proceeding and ordered the Crown to pay the reasonable disbursements of Mr Smith.

Orders