Infamous escapee and toupee-claimant Phillip John Smith has had another successful day in court, defeating a Department of Corrections attempt to strike out his judicial review claim.
Smith, who successfully brought an action against the Department of Corrections for their refusal to permit him to wear his toupee in March, and had also successfully challenged the Department on their classification of his security standing in February, has now succeeded in a further challenge to the temporary release scheme debacle that lead to his fleeing to Brazil last year.
Newly anointed High Court Judge Justice Matthew Palmer handled the judicial review, noting that Smith had sufficient standing to bring the judicial review proceeding.
The Judge said Smith was “sufficiently affected by, and connected to, the decision at issue to have personal standing to bring his claim.”
He went further and also said that even if he did not have such standing there was sufficient public interest in whether the Department’s temporary release scheme was lawful to create the right to public interest standing on the issue.
Smith, who received a life imprisonment term in 1996 for murder, along with a range of other serious offences including kidnapping and child sex offences, became somehow eligible for temporary release in 2013 and 2014. He fled to Brazil in November 2014, before being recaptured and returned, thanks only to a sharp-eyed hostel manager in Rio.
The debacle resulted in the Department of Corrections ceasing all temporary release of prisoners. There is now a new temporary release system in effect.
In February 2017 he succeeded in a judicial review of Corrections’ decision about his security classification and is now classified as ‘low-medium’.
the current claim involves a further review over Corrections’ decisions to issue guidelines for temporary release and sought to quash the decisions by Corrections over them.
The Crown sought to strike out the claim and sought costs on the basis that Smith had no standing to bring the proceeding. The Judge noted that since the Smith application, four prisoners have filed applications against the Crown in respect of the suspension of the release to work programme that Corrections have suspended.
Requirements for Standing
“The requirement of standing in judicial review proceedings has been
significantly relaxed in New Zealand. But it is not so relaxed that it is horizontal. It
still exists. The requirement of standing reflects the general attitude of the New
Zealand legal system that a judicial decision on the application of law is made in a
context of particular facts,” Justice Palmer said in his judgment.
The Judge decided that Smith’s “rights and interests are somewhat affected by the guidelines” and that he had standing before the court.
“And, according to the Inquiry, Corrections’ decision had a significantly adverse effect on morale, delayed reintegration of a considerable number of prisoners and had impacts on prisoners, families, employers and community groups. On the basis of the facts as pleaded, the decision under challenge may be unlawful with significant consequences. If so, there is a public interest in vindication of the rule of law by way of judicial review.”
He ordered the Crown to pay the reasonable disbursements to Smith and declined their strike out application.
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