[Full judgment with note: CA_AGvSMITH.pdf]

THE ATTORNEY-GENERAL v SMITH [2018] NZCA 24 [1 March 2018]
IN THE COURT OF APPEAL OF NEW ZEALAND
CA187/2017
[2018] NZCA 24
BETWEEN
THE ATTORNEY-GENERAL
Appellant
AND
PHILLIP JOHN SMITH
Respondent
Hearing:
26 September 2017
Court:
Kós P, Cooper and Asher JJ
Counsel:
U Jagose QC, Solicitor-General and V McCall for Appellant
T Ellis and G Edgeler for Respondent
Judgment:
1 March 2018 at 10 am

JUDGMENT OF THE COURT

A The appeal is allowed.

B There is no order for costs.

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?

[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:

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. 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. 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:

(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.

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

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…

[…]

[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, 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?

[…]

Conclusion

[52] We conclude that Mr Smith’s wish to wear a wig did not engage the right to freedom of expression affirmed by s 14 of the Act.

Issue 3: 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 manner ultimately justified under s 5?

[53] For reasons given at [28], we decline to answer this issue.

Result

[54] The appeal is allowed. The respondent’s wish to wear a wig did not engage s 14 of the New Zealand Bill of Rights Act 1990.

[55] Given the underlying mootness of the appeal, we make no order for costs.

[Full judgment with note: CA_AGvSMITH.pdf]

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