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Smith v Attorney-General

Smith v Attorney-General

Case [2010] NZCA 258 23 June 2010

Natural Justice & Procedural Fairness

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA555/2008
[2010] NZCA 258
BETWEENPHILIP 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…

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 [2010] NZCA 258
Case: [2010] NZCA 258
Decision Date: 23 June 2010

CaseChat Overview and Summary

The appeal was brought by Philip Smith, a prisoner sentenced for various serious crimes, against a decision of the High Court which dismissed his application for judicial review of his security classification as a prisoner. Smith challenged the classification as unlawful, and sought declarations and injunctive relief. The appeal was dismissed by the Court of Appeal. The High Court had found that Smith's security classification as a maximum security prisoner was lawful. Smith challenged the correctness of this finding on various grounds, including that the Department of Corrections' security classification system was unlawful, and that the classification decisions were made by unlawful decision makers. The Court of Appeal rejected these arguments, finding that the security classification system was lawful, and that there was no unlawful influence on the decision makers. The Court also found that Smith's complaint that he had not given informed consent to certain psychological testing was without merit. The Court of Appeal dismissed the appeal, and reserved costs.

Orders