CIV-2016-404-2269

[2019] NZHC 835

UNDER The Judicature Amendment Act 1972 Part 30 of the High Court Rules
IN THE MATTER of an application for judicial review
BETWEEN PHILLIP JOHN SMITH
Applicant
AND THE ATTORNEY-GENERAL ON BEHALF OF THE DEPARTMENT OF CORRECTIONS
Respondent

[…]

CIV-2017-485-804

UNDER Judicial Review Procedure Act 2016
IN THE MATTER of an application for judicial review of decisions by the respondents about the applicant’s temporary release for the purposes of employment
BETWEEN HAYDEN JOSEPH TAYLOR
Applicant
AND THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS
First Respondent
SERCO NEW ZEALAND LIMITED
Second Respondent

[…]

Introduction

[1] Phillip John Smith is serving a life sentence for murder. He became eligible for parole in 2009. To date, he has not been granted parole. In 2013, the Parole Board recommended he be permitted to participate in temporary removals and releases from prison under s 62 of the Corrections Act 2004 (the Act). On 6 November 2014, Mr Smith was granted a temporary release from prison for 72 hours.

That day, he boarded a flight to Chile and fled. He therefore did not return from his temporary release by the due date of 9 November 2014. Mr Smith was eventually apprehended in Brazil and deported back to New Zealand. His escape attracted significant media attention in New Zealand and the Department of Corrections came under public scrutiny and criticism.

[2] Mr Smith’s escape caused the Department of Corrections to reconsider its policies about temporary releases. Through several guidelines issued in the wake of his escape, the availability of temporary release to prisoners more generally (i.e. not only to Mr Smith) was curtailed for an extended period.

[3] Mr Smith now applies to judicially review those guidelines. The essence of his application is that the guidelines took a “blanket” approach to applications for temporary release and as a result, unlawfully excluded from consideration for such release certain classes of prisoners statutorily entitled to be so considered. Mr Smith also argues that some of the guidelines unlawfully restricted the purposes for which temporary release could be granted.

[4] Mr Smith says the guidelines were thereby ultra vires the relevant empowering provisions in the Act and/or amounted to an unlawful dictation which fettered the discretion of those making decisions on temporary release.

[5] Hayden Joseph Taylor also applies to review certain temporary release decisions, insofar as they affected him personally. Mr Taylor is serving sentences of life imprisonment for murder and preventative detention for rape. He has participated in several programmes while in prison, including release to work (RTW) which is a type of temporary release. At the time of Mr Smith’s escape, Mr Taylor was participating in RTW. In late 2014, however, he was withdrawn from RTW and later applications to return to RTW were declined.

[6] Originally, Mr Taylor’s application gave rise to issues similar to Mr Smith’s, in that Mr Taylor said he was unlawfully excluded from being considered for RTW in late 2014 as a result of the alleged blanket approach then taken to temporary release. By minute dated 4 May 2018, Churchman J allowed the two proceedings to be heard together on this point.

[7] As matters transpired however, the evidence filed by the Department in response to Mr Taylor’s application demonstrates an individual, merits-based decision was taken in December 2014 on his continued participation in RTW. While not formally abandoning his application to the extent it is based on the alleged blanket approach, Mr Taylor filed an amended pleading during the hearing, limiting that aspect of his claim before me to alleged specific deficiencies in the December 2014 decision-making, even if it had been made on an individualised basis. Despite the two sets of proceedings not overlapping to the extent first envisaged, given this aspect of Mr Taylor’s claim was fully briefed and ready to be heard, it was agreed I would hear it at the same time as Mr Smith’s claim.

[…]

Mr Smith’s application - result

[95] Accordingly, I declare that: (a) the temporary release circulars were an unlawful dictation and fetter on discretion in the manner described at [64] above; and

(b) the RTW circulars were an unlawful dictation and fetter on discretion in the manner described at [74] above.

[96] Mr Smith’s application for judicial review is otherwise dismissed.

[97] I turn now to Mr Taylor’s claim.

[…]

[152] Accordingly, while Mr Lightbown’s December 2014 decision was no doubt very disappointing to Mr Taylor, and while others may have taken a different view, I do not consider he made his decision on the basis of insufficient information. Nor do I consider it was otherwise unlawful. Ultimately, the fact others might have reached a different conclusion is not a proper basis to set aside statutory decision-making.

[153] For the above reasons, Mr Taylor’s application to judicially review Mr Lightbown’s decision of 11 December 2014 is dismissed.

[…]

[Scoop copy of judgment: 2019NZHC835.pdf]

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