UNDER
The Judicature Amendment Act 1972, Part

30 of the High Court Rules and the New
Zealand Bill of Rights Act 1990

IN THE MATTER

of an application for judicial review

BETWEEN

PHILLIP JOHN SMITH Plaintiff

AND

THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing: 6 March 2017

Appearances:

The Plaintiff in person
V McCall for Defendant

Judgment:

16 March 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 16 March 2017 at 11.00am Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors:
Crown Law, Wellington

SMITH v ATTORNEY-GENERAL [2017] NZHC 463 [16 March 2017]

Introduction

[1] The plaintiff, Mr Smith, seeks to judicially review a decision made by the Prison Director of Auckland Prison at Paremoremo on 1 December 2014. The decision revoked an authorisation Mr Smith had previously received permitting him to be issued with a custom-made hairpiece.

[2] Mr Smith filed an affidavit in support of his application, and the defendant –

the Attorney-General on behalf of the Department of Corrections (“the Department”)

– responded with an affidavit from the Prison Director at Auckland Prison, Mr Thomas Sherlock. Mr Smith filed an affidavit in reply. Three further affidavits were also filed – one from Mr A W Taylor who is also a prisoner at Auckland Prison, and two further affidavits from Mr Smith, putting into evidence and commenting on various materials he had obtained following requests made by him under the Privacy Act 1993 and the Official Information Act 1982.1 Mr Sherlock also filed a second affidavit, responding to various assertions Mr Smith had made that his (Mr Sherlock’s) first affidavit contained inaccuracies and inconsistencies.

[3] Mr Smith sought leave to cross-examine Mr Sherlock and I heard from the parties in regard to this issue.

[4] Cross-examination in judicial review proceedings requires leave.2 Mr Smith accepted that he could no longer assert that there were any inconsistencies which required resolution, given the second affidavit filed by Mr Sherlock. Rather, he said that he wanted to cross-examine Mr Sherlock, because he considered that the Department had acted in bad faith towards him.

[5] Mr Smith argued that cross-examination was necessary.3 He referred to an email, dated 1 December 2014, sent by one corrections officer to another, and also to Mr Sherlock. The text of that email is in some respects unfortunate. However, Mr
Sherlock did not author the email; nor did he respond to it or in any way endorse it.

1 Mr Taylor’s affidavit and a number of the comments made by Mr Smith in his second and third affidavits, were inappropriate and/or irrelevant. Ms McCall for the Department did not however take issue with the affidavits and I do not therefore take the matter any further.
2 Roussel Uclaf Australia Pty Ltd v Pharmaceutical Management Agency Ltd [1997] 1 NZLR 650

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 463
Case: [2017] NZHC 463
Decision Date: 16 March 2017

CaseChat Overview and Summary

Phillip John Smith, a prisoner, sought judicial review of a decision made by the Director of Auckland Prison to revoke an authorisation permitting him to be issued with a custom-made hairpiece. Mr Smith’s escape from prison and subsequent recapture, together with the media attention which followed, prompted the decision. Mr Smith argued that the decision breached his right to freedom of expression under the New Zealand Bill of Rights Act 1990 (NZBORA). The Department of Corrections, on behalf of the Director, submitted that the right was not engaged in the circumstances of the case. The Director also failed to take into account relevant considerations and his decision was unreasonable. Justice Wylie held that the wearing of a hairpiece by Mr Smith was an act undertaken in the exercise of his right to freedom of expression. The Director should have acknowledged the right affirmed by s 14 of the NZBORA, and considered whether the limitation proposed by him was justified under s 5 of the Act. The Director’s failure to take into account a relevant, and indeed a mandatory, consideration rendered the decision unlawful. The Court made a declaration and quashed the decision.

Orders