PHILLIP JOHN SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2021] NZSC 34

PHILLIP JOHN SMITH v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS[2021] NZSC 34 [21 April 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 1/2021[2021] NZSC 34BETWEEN PHILLIP JOHN SMITHApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSRespondentCourt: William Young, Glazebrook and O'Regan JJCounsel: Applicant in personA M Powell and C P C Wrightson for RespondentJudgment: 21 April 2021JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS[1] This application for leave to appeal concerns a proposed interview ofPhillip Smith, a prison inmate, by a journalist. In issue is the application of regs 108and 109 of the Corrections Regulations 2005 to the journalist's request for permission.These regulations:(a) prohibit the interviewing (defined broadly) of prisoners without thewritten approval of both the chief executive and the prisoner concerned(reg 108); and(b) provide criteria for determining whether the chief executive should giveapproval (reg 109).[2] The application of these regulations (and similar earlier regulations) has beenthe subject of previous litigation involving Ahmed Zaoui,1 Scott Watson2 andArthur Taylor.3 The leading case in New Zealand is the Court of Appeal decision inTaylor. There is also a House of Lords decision.4[3] Approval for the proposed interview was first sought in 2017. A decision inMay 2018 to withhold approval resulted, in July 2018, in judicial review proceedings.These were settled in October 2018 on the basis that the application would bereconsidered. The outcome of this reconsideration was a further decision, inFebruary 2019, to withhold approval. This was for reasons which came down to likelydistress for the applicant's victims and prison management concerns (particularly interms of preserving the applicant's personal safety if the interview were published).[4] In the High Court, Doogue J set aside the withholding of approval on a basiswhich made it clear that she expected that, on reconsideration (or more likely perhaps,a further application), approval would be granted.5[5] The Court of Appeal allowed the appeal and upheld the withholding ofapproval.6[6] In his submissions in support of the application, the applicant contends that:(a) the Court of Appeal allowed what he called "an inference" of harm tovictims to trump his right to freedom of expression and incidentally,1 Television New Zealand Ltd v Attorney-General (2004) 8 HRNZ 45 (CA). The relevantregulations in this case were regs 87 and 88 of the Penal Institutions Regulations 2000.2 Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227, (2015) 10 HRNZ505.3 Taylor v Chief Executive of the Department of Corrections [2015] NZCA 477, [2015] NZAR 1648.4 R v Secretary of State for the Home Department, ex parte Simms [2000] 2 AC 115 (HL).5 Smith v The Chief Executive of the Department of Corrections [2019] NZHC 2472.6 Chief Executive of the Department of Corrections v Smith [2020] NZCA 675 (Clifford, Gilbertand Courtney JJ).that it is wrong to allow victim distress to be, in this context, a basis forwithholding consent;(b) regs 108 and 109 were ultra vires unless able to be construed in a waywhich respects the right to freedom of expression (and that the Court ofAppeal did not so construe them because it held that outright refusal isan option); and(c) the Court of Appeal's proportionality approach was wrong.[7] We are not persuaded that the proposed appeal raises an issue of general orpublic importance which warrants leave to appeal,7 and we see no appearance of amiscarriage of justice.8[8] As to the first point, there was evidence that a published interview would causedistress. In any event, it is open to a court to act on inferences as well as directevidence.[9] As to the second, the Court of Appeal approached the case on the basis that theregulations had to be applied consistently with the right to freedom of expression. Wedo not accept that this precludes a withholding of approval (as opposed to theimposition of conditions). We add that because the applicant had said that he wouldnot accept control over the content of the interview, there is limited substance in hissuggestion that approval should have been granted subject to conditions.[10] In respect of the third point, the Court of Appeal balanced the impact on theguaranteed right against the countervailing considerations (victim concerns and prisonmanagement). On that basis it concluded that withholding approval was not adisproportionate limit on the applicant's right to freedom of expression. This, asopposed to a full Hansen analysis,9 is consistent with the reasons of Winkelmann CJand O'Regan J in D (SC 31/2019) v New Zealand Police.10 Against that background,7 Senior Courts Act 2016, s 74(2)(a).8 Section 74(2)(b).9 See Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.10 D (SC 31/2019) v New Zealand Police [2021] NZSC 2 at [101]. Glazebrook J agreed that theHansen methodology was not appropriate: n 361.the various complaints identified by the applicant in relation to this aspect of the caseare primarily about application rather than principle.[11] The application for leave to appeal is dismissed. The respondent not havingsought costs, and given the applicant's circumstances, no order as to costs is made.Solicitors:Crown Law Office, Wellington for Respondent