Smith v Chief Executive of the Department of Corrections

[2025] NZHC 1211

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-829

[2025] NZHC 1211

UNDER

the Judicial Review Procedure Act 2016

IN THE MATTER

of an application for judicial review

BETWEEN

PHILLIP JOHN SMITH

Applicant

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

First Respondent

AND

THE VISITING JUSTICE AT RIMUTAKA PRISON

Second Respondent

On the Papers

Counsel:

Applicant in Person

M W McMenamin for First Respondent

Judgment:

19 May 2025

JUDGMENT OF ISAC J

[Application for judicial review]

Introduction

[1]    The applicant, Mr Phillip Smith, is a well-known prisoner. In this proceeding he seeks judicial review of decisions of the Chief Executive of the Department of Corrections and a Visiting Justice at Rimutaka Prison charging and convicting him of an offence against discipline and contravention of s 128(1)(d) of the  Corrections  Act 2004 (the Act). The parties now seek orders granting relief by consent in respect of some aspects of Mr Smith’s claim.

SMITH v THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS & ANOR [2025] NZHC 1211 [19 May 2025]

[2]    Originally the parties proposed that the applicant would file a notice of discontinuance in respect of the remainder of his claim if a judgment issued granting relief to the extent agreed by the parties. In a minute of 8 May 2025 I recorded that I was satisfied it was appropriate to grant the relief sought but was unwilling to do so in circumstances where it would  not  finally  determine  the  proceeding.  I  advised  Mr Smith to consider whether he would be prepared to advise the Court that with his consent the balance of his proceeding could be dismissed in the judgment granting relief. On 12 May 2025 Mr Smith provided a memorandum confirming his agreement to that course. This judgment follows.

Background

[3]    Section 128(1)(d) of the Act provides that every prisoner commits an offence against discipline who “without authority, communicates with any person inside or outside the prison by using a telephone or other electronic communication device”.

[4]    On 19 December 2024, the Visiting Justice convicted the applicant of an offence against discipline for contravention of s 128(1)(d) of the Act.

[5]It is agreed between the applicant and the first respondent that:

(a)the applicant used a telephone to communicate with people outside of prison on 25 September 2024 and 7 and 8 October 2024;

(b)the applicant was authorised to communicate with the recipients of those calls by using a telephone;

(c)the charge brought against the applicant of an offence contrary to       s 128(1)(d) of the Act for which he was convicted concerned those calls;

(d)the prosecutor’s case before the Visiting Justice was that although the applicant had approval to phone the persons identified, he did not have approval to phone them for the purpose of employment; and

(e)the Visiting Justice’s decision recorded that there was evidence the applicant had permission to phone the persons he did phone, however, the decision concluded the applicant was in self-employment without permission and the content of his phone calls were without authority.

[6]    At the date of writing, no penalty has been imposed by the Visiting Justice in respect of the conviction; the penalty hearing has been adjourned pending resolution of this judicial review claim.

Relief sought by the applicant

[7]The first amended statement of claim advanced four causes of action.

[8]    The first three causes of action sought orders quashing the Visiting Justice’s decision of 19 December 2024, and associated declarations. The declarations sought concern:

(a)the proper interpretation of s 128(1)(d) (the first cause of action);

(b)natural justice and relevant considerations (the second cause of action); and

(c)breaches of the Corrections Act (the third cause of action).

The proper interpretation of s 128(1)(d): the first cause of action

[9]    The first respondent’s position is that the Visiting Justice erred in law by finding that although the applicant was authorised to communicate with the recipients of his calls by using a telephone, he nevertheless acted contrary to s 128(1)(d) because during the use of the telephone he conducted unapproved self-employment. The first respondent accepts that finding is not available on the natural meaning and apparent purpose of s 128(1)(d). That provision is not directed to the content of conversations on telephones or electronic communication devices which have been approved for use for communication with approved persons and are used for such communication with those persons.

[10]   I agree with the first respondent’s view of the s 128(1)(d) of the Act and its application to the facts in this case. It is therefore appropriate to grant the relief sought by the applicant.

Conclusion and result

[11]By consent I make orders:

(a)declaring the Visiting Justice erred in law in convicting the applicant of conduct contrary to s 128(1)(d) of the Act notwithstanding that he was authorised to communicate with the recipients of his calls by using a telephone;

(b)quashing the decision of the Visiting Justice dated 19 December 2024; and

(c)dismissing the balance of Mr Smith’s proceeding with his consent.

[12]Costs will lie where they fall.

Isac J

Solicitors:

Crown Law, Wellington for first defendant