The Attorney-General v Smith

JurisdictionNew Zealand
JudgeKós P
Judgment Date01 March 2018
Neutral Citation[2018] NZCA 24
Docket NumberCA187/2017
CourtCourt of Appeal
Date01 March 2018
Between
The Attorney-General
Appellant
and
Phillip John Smith
Respondent

[2018] NZCA 24

Court:

Kós P, Cooper and Asher JJ

CA187/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

Bill of Rights — Appeal against a High Court decision which held that the respondent's wish to wear his wig while in prison engaged s14 New Zealand Bill of Rights Act 1990 (freedom of expression)

Counsel:

U Jagose QC, Solicitor-General and V McCall for Appellant

T Ellis and G Edgeler for Respondent

  • A The appeal is allowed.

  • B There is no order for costs.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Kós P)

1

Does a prisoner's wish to wear a wig engage the right to freedom of expression affirmed by s 14 of the New Zealand Bill of Rights Act 1990? 1

2

A prison manager revoked the prisoner's permission to wear his wig when he was returned to custody after absconding while on temporary release. In the

High Court Wylie J concluded that the prisoner's wish to wear his wig while in prison engaged s 14 of the Act: 2

14 Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

The Judge also concluded that the process adopted by the prison manager was erroneous. He should have acknowledged the prisoner's right to freedom of expression and set out, “albeit briefly”, why he had reached the conclusion the limitation on that freedom — removal of the wig was justified under s 5.

3

The Crown appeals those findings. But there is a preliminary question: is the appeal moot? Following Wylie J's decision permission to wear the wig was reinstated. The prison does not intend to revoke the permission again if the appeal is allowed. There is no longer a dispute of right between the parties.

Background
4

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

5

In 2001 Mr Smith began to lose his hair. Medical treatments were unavailing. In 2012 he sought approval from the prison manager at Auckland Prison to be permitted to possess and wear a wig. He said it would improve his self-esteem and confidence. A psychological assessment supported that claim. It would aid his rehabilitation. It would also protect his scalp from sun exposure in summer. And it would prevent heat loss in winter.

6

The application was granted by Mr Sherlock, the Prison Director at Auckland Prison. A wig was made. Mr Smith received it in April 2013. It attaches to his scalp

with glue and tape. In July 2014 Mr Smith was moved to Spring Hill Corrections Facility. Permission was again granted for possession and use of his wig
7

On 6 November 2014 he was released for three days. Temporary release arrangements anticipate an eventual reintegration into society. The approved sponsor, his sister, collected him from the prison. But Mr Smith then fled. He boarded a flight to Santiago. Then another to Rio de Janeiro. Six days later he was arrested there. He was deported and returned to Auckland Prison on 29 November 2014. On arrival it appeared to the authorities that he had consumed drugs of some sort. 3 He was placed in the At Risk Unit to recover from their effects.

8

The prison manager, Mr Sherlock, was informed of these events. On 1 December 2014 he revoked permission for Mr Smith to retain his wig. Mr Smith sought reasons. The response was perfunctory:

Have spoken with Prison Manager. Prison Manager has withdrawn his approval of the hairpiece due to the actions conducted by the prisoner.

9

Mr Smith appeared before the District Court at Auckland on charges arising from his escape. 4 He was by then entirely bald. Media reporting was pervasive. Comparator photographs were used to show the difference in Mr Smith's appearance with and without the wig.

10

Mr Smith complained to the Office of the Ombudsman about the decision to revoke permission. In April 2016 the Ombudsman concluded the decision was not unreasonable.

11

Mr Smith then filed his present judicial review proceedings. Three causes of action were advanced:

Damages of $5,000 were sought on the second and third causes of action only.

  • (a) breach of natural justice (ss 27(1) of the Act and s 6(1)(f)(ii) of the Corrections Act 2004) — in relation to the prison manager's refusal to

    give reasons or consult with the plaintiff about the decision to remove his wig;
  • (b) failure to consider that Mr Smith's wig was “an act of expression” protected by s 14 of the Act. 5 A declaration that the decision to remove the wig was in breach of s 14 was sought, together with an order quashing the decision; and

  • (c) breach of s 23(5) of the Act (the right of a detained prisoner be treated with humanity and respect for his inherent dignity). Again a declaration and order quashing were sought.

Judgment appealed
12

Wylie J delivered his judgment on 16 March 2017. The judgment addresses, directly, only the second cause of action. It concluded that Mr Smith's practice of wearing a wig was an act in exercise of his right to freedom of expression under s 14 of the Act. While Wylie J gave a number of reasons, the essential rationale was that wearing the wig was, for Mr Smith, an act with “expressive content”. He had obtained the wig to improve his self-confidence and self-esteem: 6

In my judgment, in wearing a hairpiece, Mr Smith was endeavouring to present himself to others in a way with which he was comfortable. The wearing of a hairpiece was a physical act by which Mr Smith sought to promote his self-confidence and self-esteem. Mr Smith was trying to say – this is who I am and this is how I want to look. He was trying to affect the perception that others would have of him. His action in wearing a hairpiece had expressive content.

13

The Judge considered that s 14 was a mandatory relevant consideration in the decision whether to remove Mr Smith's wig. The prison manager should have considered whether such a decision would have been a reasonable limit prescribed

by law. “In other words, he should have acknowledged the right affirmed by s 14 and considered s 5 of [the Act].” 7
14

Wylie J then went on to reject the Crown's argument that while makers of discretionary ministerial decisions were obliged to exercise their powers in a manner consistent with the Act in a prison management context that applied only to the outcome of the administrative decision-making and not the process of arriving at the particular decision. The Judge considered the decision of the House of Lords in R (SB) v Governors of Denbigh High School. 8 While he accepted that the decision-making in the present case was a relatively low-level managerial decision, the particular context involving coercive powers made it distinguishable from R (SB) v Governors of Denbigh High School. 9 A mandatory process therefore applied for the making of an administrative decision affecting a prisoner's rights under the Act. The Judge continued:

[87] I do not consider that a full step by step analysis as discussed in Hansen was necessarily required. Rather, Mr Sherlock could, and should, have acknowledged Mr Smith's right to freedom of expression under s 14, and set out, albeit briefly but in a transparent way, why he had reached the conclusion that the limitation he proposed was justified under s 5. A succinct summary of his reasons would have sufficed.

[88] In the absence of any evidence to the contrary, I conclude that Mr Sherlock failed to take into account a relevant, and indeed a mandatory, consideration, namely Mr Smith's right to freedom of expression under [the Act], and whether or not the limitation he was proposing on that right, through a decision to revoke permission earlier given for the issuance of a hairpiece, was a justified limitation on the right.

15

The Judge said he did not need to decide the other causes of action. He made no comment at all on the third cause of action concerning s 23(5). As it happens, that approach has caused us some unintended difficulty in disposing of the present appeal. On the second cause of action (breach of natural justice/s 27) the Judge indicated, per obiter, that the original reasons given for the decision to revoke permission to wear the wig were inadequate. 10 He continued: 11

A decision-maker should not be able to avoid challenge by giving perfunctory reasons, and in my view the more or less contemporaneous reasons given by Mr Sherlock — the decision was made because of Mr Smith's actions — were perfunctory.

16

In the result the Judge made a declaration that Mr Sherlock's revocation of permission failed to take into account as a relevant consideration Mr Smith's right to freedom of expression under s 14. And, further, that he failed to conduct any assessment under s 5 of the limitations on that right. An order in the nature of certiorari quashing the decision was made. Noting that damages were not expressly sought in relation to the cause of action on which he had decided the matter, 12 the Judge considered that the declaration and order quashing the decision were sufficient to vindicate the rights breached. Damages were declined.

Issues
17

This appeal raises three issues:

  • (a) Is the appeal moot? If so, should either of the remaining issues be addressed?

  • (b) Does the respondent's wish to wear a wig engage the right to freedom of expression affirmed by s 14 of the Act?

  • (c) Did the prison manager have to identify the s 14 right, potential limits and undertake a proportionality analysis? Or is it sufficient that the decision limited a protected right in a manner ultimately justified under s 5?

Issue 1: Is the appeal moot? If so, should either of the remaining issues be addressed?
18

Following the delivery of Wylie J's judgment,...

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2 cases
  • Moncrief-Spittle v Regional Facilities Auckland Ltd
    • New Zealand
    • Court of Appeal
    • 30 April 2021
    ...UKSC 60, [2015] AC 945 at [13] per Lord Sumption. 58 Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [15]. 59 Attorney General v Smith [2018] NZCA 24, [2018] 2 NZLR 899 at [46]. 60 See, for example, Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91; Morse v Police [......
  • Arps v New Zealand Police
    • New Zealand
    • Court of Appeal
    • 28 November 2019
    ...regardless. The justification inquiry under s 5 is the appropriate stage to evaluate whether protection should continue: see Attorney-General v Smith [2018] NZCA 24, [2018] 2 NZLR 899 at [38]. We agree with this approach and will not carve out any internal limit to s 14 of the 28 Sentencin......

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