IN THE COURT OF APPEAL OF NEW ZEALAND
CA555/2008
[2010] NZCA 258BETWEENPHILIP SMITH
Appellant
ANDTHE ATTORNEY-GENERAL
Respondent
Hearing:20 May 2010
Court:Hammond, Arnold and Baragwanath JJ
Counsel:T Ellis and G Edgeler for Appellant
C J Curran for Respondent
Judgment:23 June 2010 at 10 am
JUDGMENT OF THE COURT
A The several applications for recusal are dismissed.
B The appeal is dismissed.
C Costs reserved.
REASONS OF THE COURT
(Given by Hammond J)
Table of Contents
Para No
Introduction [1]
The recusal issues [8]
The scope of the appeal [26]
The expert evidence issues [31]
The informed consent issues [42]
The security classification issues [64]
Invalidity of the Department’s security classification system [66]The security classification decisions unlawfully relied on
Mr T’s impugned psychological assessment [71]
Unlawful decision makers [72]
Inadequate reasons given for the seventh, eighth and tenth review
decisions [77]
Relief [84]
Conclusion [91]
Introduction
[1] In 1996 Mr Smith was incarcerated at Auckland, on sentence following convictions for a horrific murder, aggravated burglary, various sexual offences, and kidnapping. From 1996 through until 2004, he was classified as a maximum security prisoner.
[2] One consequence of this classification was that Mr Smith was unable to be transferred to a prison in the Wellington region. Mr Smith’s mother lived in Wellington, and he wished to be nearer to her. He was eventually transferred to Manawatu Prison in July 2005 after his mother became very ill. By that time his classification had been revised downwards to high-medium, and in November 2005 his classification was reduced again to low-medium.
[3] Notwithstanding the course events have taken over the years leading, eventually, to a much lower classification in 2005, Mr Smith commenced proceedings by way of an application for judicial review of his security classification as a prisoner in the earlier years of his sentence. The application sought to challenge his earlier classification as “maximum security risk”.
[4] The first cause of action in the first amended statement of claim related primarily to psychological assessments made of Mr Smith by Mr T in 1999. Mr Smith maintains in particular that one assessment, he says carried out “on the papers” and without his knowledge, was undertaken without his fully informed consent. It was therefore in breach of his rights under the New Zealand Bill of Rights Act 1990 (BORA) and unlawful. The gravamen of the complaint was the alleged reliance, at least in part, on the report of the particular assessment in subsequent decisions on Mr Smith’s security classification.
[5] The second cause of action attacked 14 decisions reviewing Mr Smith’s security classification carried out between August 1998 and December 2004. The allegation is that they were unlawful, for various reasons.
[6] Miller J dismissed the application.[1]
[1] Smith v The Attorney-General HC Auckland CIV 2005-485-1785, 9 July 2008.
[7] The appeal to this Court raises, broadly, issues in three areas. First, it is said that the High Court Judge breached natural justice in the way certain expert evidence was dealt with at the…
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- AGLC
- Smith v Attorney-General [2010] NZCA 258
- Case
- [2010] NZCA 258
- Decision Date
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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