Smith v R

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeKós P
Judgment Date16 October 2020
Neutral Citation[2020] NZCA 499
Docket NumberCA687/2018
Date16 October 2020

[2020] NZCA 499




Kós P, French and Collins JJ


Phillip John Smith
The Queen

Appellant in person

C G Tuck and T D A Harre as standby counsel

F R J Sinclair and M J Lillico for Respondent

Bill of Rights, Criminal, International law — appeal against conviction for escaping from lawful custody while on short-term release — the sentence was to be served concurrently with his life sentence — the appellant obtained a passport by false pretences and flew to Brazil — whether New Zealand authorities actions in procuring the appellant's deportation from Brazil rather than following an extradition process were an abuse of process — whether the New Zealand Bill of Rights Act 1990 applied to overseas actions of New Zealand officials — Criminal Procedure Act 2011 — Extradition Act 1999

The issues were: whether the question of the extant stay application could be advanced on appeal and whether the convictions should be set aside for abuse of process.

The Court held that deferring the stay application should not have occurred. Justice demanded the abuse of process argument be dealt with in effect at first instance. S must show a miscarriage of justice had occurred.

A category 2 abuse of process (a stay may be granted where there was state misconduct that would undermine public confidence in the integrity of the judicial process if a trial was permitted to proceed) outlined in Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 existed where there had been an abuse of process which amounted to an a front to the public conscience. The hallmark of a category 2 abuse was unlawful conduct by NZ authorities in the foreign jurisdiction or want of good faith or a proper motive in subverting the defendant's rights in that jurisdiction. The decision to pursue deportation was for Brazilian authorities but whether it would be ordered was a decision for the Brazilian courts. The deportation order was a regular order made by a court of competent jurisdiction, it was not for the NZ authorities to look behind it in the absence of knowledge it was obtained unlawfully or contrary to natural justice. NZ authorities had not procured S's deportation to avoid the extradition process. The issuing of an emergency travel document in S' name, despite S not requesting such a document as contemplated by s23(1) Passports Act 1992 (“PA”) (issue of emergency travel document) was not unlawful.

NZ authorities had not infringed S' rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”). The NZBORA did not apply to officials of overseas countries that detained a person for extradition to NZ. It was accepted the NZBORA may have extraterritorial application. Its application turned on whether the NZ officials had performed a NZ public function and whether its application was justifiably limited by the relevant foreign state's domestic laws. At the material times, S was under the control of Brazilian authorities, subject to the Brazilian legal system. The NZBORA may apply once S entered the custody of the NZ officers on board the plane. The NZ officers had lawfully detained the appellant pursuant to their arrest powers in the Crimes Act 1961 which may be exercised outside the territorial limits of NZ in relation to arrests for offences triable in NZ courts.

S had failed to establish misconduct sufficient to take the exceptional step of precluding his conviction on the basis of abuse of process. The return of S and his subsequent convictions were not an affront to the public conscience. The appeal against conviction was dismissed.

The appeal against conviction is dismissed.


(Given by Kós P)


The appellant, Phillip Smith, was convicted of murder, paedophile offending, aggravated burglary and kidnapping in 1996. He was sentenced to life imprisonment with a minimum non-parole period of 13 years. He has sought, but been denied, parole.


It is beyond doubt that in June 2013 he committed the act of obtaining a passport by false pretences, 1 and that in November 2014 he committed the further act of escaping from lawful custody while on short-term release, 2 flying to South America using the falsely-obtained passport. 3


He was apprehended by Brazilian authorities in mid-November 2014 and deported by that country later that month. Two and a half years later he faced trial for those further offences. As trials go, it took an unusual form. This is what his counsel said in opening to the jury:

In the 30 plus years that I've practised at the bar I've never asked a Judge to direct a jury to bring in a guilty verdict but that's what I'm doing today, on Mr Smith's instructions. He wants you to find him guilty.

So he's asking you to return a guilty verdict. All the facts that my friend read out we've agreed, there's no dispute, you come back with a guilty verdict …

Following conviction, the appellant was sentenced to a further 33 months' imprisonment, to be served concurrently with his life sentence. 4


Now he appeals to this Court. He says the two convictions, entered at his own invitation, should be set aside. Not because counsel erred. And not because he did not commit the offences. Rather, because the deportation by Brazil was unlawful, knowingly connived in by the New Zealand police, and that in consequence the prosecution was an abuse of process.


The essential background to the appeal may be set out reasonably succinctly.

A murder in 1995

In December 1995 the appellant was bailed on charges of sexual offending against a boy over a period of years. In breach of bail he travelled to the family home of the boy. He hid a rifle in a nearby property. Late at night, after the family had gone to sleep, he entered the house. He was masked and armed with a hunting knife. He disconnected the telephone line. Then he entered the room of the boy and attempted to stab him. The father, hearing the boy's cries, came to his aid. The appellant stabbed the father to death. The boy was then also stabbed. The appellant then retrieved the rifle and kidnapped the boy's mother and brother at gunpoint, preventing them from assisting the father as he lay dying. As Greig J observed: 5

All of that speaks of a cool, deliberate plan, either to retaliate against the accusations of sexual abuse that had been made or perhaps to prevent the proceeding against you.

The Judge noted that apart from whether the appellant had attempted to murder the boy (on which he was found not guilty), the facts had never really been in dispute. The sentence imposed was that noted at [1] above.

An abscondment in 2014

By June 2013 the appellant was incarcerated at Paremoremo Prison. That month he made application to the Department of Internal Affairs for a passport, under his birth name of Phillip John Traynor. A home address was required in the application, and the appellant specified an address in Palmerston North. An identity referee was required. A former co-prisoner performed that function. The appellant asked him to tell the Department he had known him for a number of years and that the appellant lived at the specified address. This the referee did when contacted by the Department, adding that the appellant owned his own marketing business. In consequence the Department issued the appellant with a New Zealand passport in his birth name, which it couriered to the specified address in Palmerston North in July 2013.


By June 2014, a year later, the appellant was incarcerated at Spring Hill Correctional Facility, south of Auckland. He was included in a reintegration programme for prisoners perceived to be close to being released on parole. This permitted short-term release under the control of authorised supervisors. Prisoners on short-term release remained under the lawful custody of the Department of Corrections throughout their release. While on short-term release in June 2014, the appellant rented a security vault box in Auckland. During a second short-term release in September 2014 the appellant made an online booking for a flight to Rio de Janeiro in Brazil, transiting through Chile. The flight date was 6 November 2014, and the ticket was purchased in the appellant's birth name.


The appellant obtained a third short-term release approval beginning on the morning of 6 November 2014. On that day he took a room at an Auckland motel. He went to his bank and withdrew, first, USD 7,500 and then a further NZD 6,000 — most of which he converted into US currency and then loaded on a travel card. He then took a taxi to Auckland International Airport. He checked in to his flight and completed Customs clearance using his birth name and the new passport. He travelled on to Rio de Janeiro in Brazil, failing to return as required to Spring Hill.


On 11 November 2014 the Auckland District Court issued a warrant to arrest the appellant for escaping lawful custody. A senior New Zealand police officer, Detective Superintendent Pannett, travelled to Rio de Janeiro. On this day or the next day, the appellant's new passport was cancelled. An Interpol Red Alert Notice was sent to Interpol Brazil requesting the provisional arrest of the appellant for the purposes of extradition.

The appellant is arrested in Rio

The next day, 12 November 2014, the appellant was arrested by the Brazilian Federal Police at a hostel he was staying at in Rio de Janeiro.

The Brazilian Federal Police obtain a detention order preparatory to deportation

On the same date Chief Maria Asmuz of the Federal Police applied to the Federal Court at Rio de Janeiro for the administrative detention of the appellant “with the scope of effecting the compulsory measure of deportation” of the appellant. Again on the same day, Judge de Souza, a Federal Judge of the 3rd Federal Criminal...

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