Smith v The King - [2023] NZSC 134

NOTE: DISTRICT COURT ORDER PROHIBITING PUBLICATION OF
ADDRESS REFERRED TO AT [7] OF THE COURT OF APPEAL JUDGMENT (SMITH v R [2020] NZCA 499) REMAINS IN FORCE.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS
OF COMPLAINANTS REFERRED TO AT [6] OF THE COURT OF APPEAL JUDGMENT (SMITH v R [2020] NZCA 499) PROHIBITED
BY SS 139(1) AND 139A OF THE CRIMINAL JUSTICE ACT 1985.

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 88/2023
[2023] NZSC 134

BETWEEN	PHILLIP JOHN SMITH Applicant
AND	THE KING Respondent

Court:	Glazebrook, Ellen France and Williams JJ
Counsel:	Applicant in person F R J Sinclair for Respondent
Judgment:	17 October 2023

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for leave to appeal is granted.

BThe application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Introduction

This application for leave to appeal arises out of the deportation of the applicant, Phillip Smith, following his escape from custody in New Zealand while on short‑term release. The order for his deportation was made by the 3rd Federal Criminal Court in Rio de Janeiro.
Mr Smith challenged the two convictions arising out of his escape on the basis that the deportation was unlawful. He says he could not have been lawfully deported from Brazil and, as the Court of Appeal summarised his argument, the deportation was “knowingly connived in by the New Zealand Police, and that in consequence the prosecution was an abuse of process”.[1] Essentially, he argued that the deportation was a disguised extradition in circumstances where extradition would not have been available.[2] The Court of Appeal dismissed his case and he now seeks leave to appeal that decision.
[1]Smith v R [2020] NZCA 499, [2021] 3 NZLR 324 (Kós P, French and Collins JJ) [CA judgment].
[2]That is because the extradition would not meet the dual criminality requirement where Brazil has no equivalent offence to escaping from lawful custody.
Mr Smith also says that if he succeeds in this argument then arguably the Court should consider whether the life sentence imposed in 1996 by Greig J for murder, aggravated burglary and other charges should be quashed and substituted for a finite sentence with a maximum term of 30 years.[3] That would put him in the same position he would have been in if extradited. This reflects the fact that it appears that extradition would have been conditional on Mr Smith’s sentence of life imprisonment being reduced to a finite term of 30 years as that is the maximum permitted in Brazil.

Background

[3]R v Smith HC Wellington T23/96, 16 August 1996. Mr Smith, in reliance on sch 5 cl 3(2) of the Senior Courts Act 2016, consented to his application for leave to appeal being determined by this Court. The Crown consented to him filing his application in this Court rather than the Privy Council.

As the respondent notes, on the day the applicant was arrested in Rio de…

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 The King

Details

AGLC: Smith v The King [2023] NZSC 134
Case: [2023] NZSC 134
Decision Date: 17 October 2023

CaseChat Overview and Summary

Phillip John Smith sought leave to appeal against the Court of Appeal's decision to dismiss his challenge to his deportation from Brazil following his escape from custody in New Zealand. The central issue was whether the deportation was lawful and whether it constituted a disguised extradition, which would have been unlawful. Mr Smith argued that the New Zealand Police connived in his deportation, knowing it to be unlawful under Brazilian law, and that this constituted an abuse of process. The Court of Appeal dismissed this argument, finding that the deportation was ordered by a court of competent jurisdiction and that there was no evidence of improper conduct by the New Zealand authorities.

The Supreme Court considered whether the appeal raised questions of general or public importance and whether there was a risk of a miscarriage of justice. Mr Smith argued that the Court of Appeal's failure to consider causation in light of certain factual findings constituted an error of law. He also argued that the Court of Appeal mischaracterised the distinction between extradition and deportation, and that the New Zealand authorities arbitrarily detained him in breach of the New Zealand Bill of Rights Act 1990. Additionally, Mr Smith sought to have his life sentence substituted for a finite sentence of 30 years.

The Supreme Court held that the appeal did not raise a question of general or public importance as the deportation was made pursuant to a court order, the validity of which had not been challenged before the Brazilian courts. The Court found no error or misconduct established, and that the principles of abuse of process in this context were settled. The Court also found no error in the Court of Appeal's assessment of the claim relating to section 22 of the Bill of Rights. Consequently, the application for an extension of time to apply for leave to appeal was granted, but the application for leave to appeal was dismissed.

The final orders of the Supreme Court were that the application for an extension of time to apply for leave to appeal was granted and the application for leave to appeal was dismissed.

Orders