Smith v Attorney-General - [2016] NZHC 2103

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-000041 [2016] NZHC 2103

UNDER
Part 1 of the Judicature Amendment Act

1972 and Part 30 of the High Court Rules

IN THE MATTER OF

an application for judicial review

BETWEEN

PHILLIP SMITH Plaintiff

AND

THE ATTORNEY-GENERAL First Defendant

THE AUCKLAND DISTRICT COURT Second Defendant

Hearing: 23 May 2016

Counsel:

A J Ellis for the Plaintiff
A M Powell and T P Westaway for the Attorney-General

Judgment:

6 September 2016

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 6 September 2016 at 12.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: A J Ellis, Wellington

Solicitors: Crown Law, Wellington

SMITH v ATTORNEY-GENERAL [2016] NZHC 2103 [6 September 2016]

Introduction

[1] Mr Phillip Smith applies to judicially review the decision to handcuff him during the hearing of two pre-trial applications in the Auckland District Court on
12 November 2015.

Background

[2] Mr Smith is serving a life sentence for murder, and sentences for child sex offending, aggravated burglary and kidnapping. He has a conviction for escaping police custody in 1995. He is also currently serving a sentence for offences relating to an escape to Brazil in November 2014.

[3] Mr Smith originally pleaded not guilty to the 2014 escape charges. He applied for a stay of proceedings and discharge without conviction in the District Court. Those applications were set down for a pre-trial hearing on
12 November 2015.

[4] Mr Smith was transported from Auckland Regional Prison to the District Court to attend that hearing. He was escorted by officers employed by First Security, a contractor engaged to provide transit and courtroom custodial services pursuant to the Corrections Act 2004.

[5] The First Security officers’ instructions in terms of Mr Smith were set out in a form from the Department of Corrections. That form contains information about a prisoner’s security classification, active alerts, escape risks and any non-association orders in place. The form also includes specific instructions on how, when and where the prisoner is to be handcuffed or otherwise restrained.

[6] The form for Mr Smith identified him as a maximum security prisoner and a flight risk. The directions in the form required him to be handcuffed in all non- secure areas at the destination and when being escorted through public areas of court.

[7] When Mr Smith arrived at the District Court, he was initially placed in a holding cell in the basement of the court building. Mr Smith was not handcuffed

whilst in the cell and nor was he handcuffed in the passage between the cell and the courtroom. The cell and the passage areas are considered “secure areas” within the court building.

[8] The courtroom is not considered a secure area. Mr Smith was handcuffed to the security officer to enter the courtroom with a chain approximately one metre long. The security officer sat next to Mr Smith in the dock. Media were present in the…

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 [2016] NZHC 2103
Case: [2016] NZHC 2103
Decision Date: 6 September 2016

CaseChat Overview and Summary

Phillip Smith sought judicial review of the decision to handcuff him during a pre-trial hearing in the Auckland District Court. The hearing related to applications for a stay of proceedings and discharge without conviction in relation to charges arising out of an escape from custody. The hearing was conducted by Judge Sharp and was open to the public. Mr Smith was handcuffed and shackled to a security officer as he was brought into the courtroom. Mr Smith’s counsel applied for the handcuffing to cease but Judge Sharp declined the application. Mr Smith commenced proceedings against the Attorney-General and the Auckland District Court seeking a declaration that the handcuffing was unlawful and an order of certiorari quashing the decision. The central issues were whether the Judge abdicated his power to determine the handcuffing and whether he erred in law in declining the application to remove the handcuffing. The Court rejected both causes of action. The Judge did not abdicate his power as he had not made any decision on the issue of handcuffing until Mr Smith’s counsel made an application. In declining the application, the Judge did not err in law. He had regard to Mr Smith’s maximum security classification, the risk of escape, and the fact that the application was before a Judge alone. These were not irrelevant considerations. The application for judicial review was declined. The Court declined to award costs to the Attorney-General.

Orders