Much of the focus of mainstream media in reports of Phillip's cases is on his criminal history and sight is often lost of the issues at hand. This page highlights the importance of some of those issues and highlights Phillip's considerable courtroom success, whilst also acknowledging his few losses.
Copies of the judgments referred to are available for download at the bottom of this page.
In this case, Phillip was represented by Dr Tony Ellis. The case followed the Privy Council decision of Taito v R (2002) 6 HRNZ 539, which held that the Court of Appeal procedure for appeals between 1991 and 2001 that heard appeals on the papers without legal representation rendered any such appeal invalid because there was a requirement for the preparation of a case on appeal, an oral hearing to be heard by three judges, with a written judgment delivered. Previously, the Court of Appeal considered an application for funding for legal representation on the papers, which if declined because the appeal was viewed to lack merit, effectively became the decision of the Court with no hearing or judgment delivered. A judgment from the on the papers process would only be delivered if an appellant made written submissions to the Court. Phillip’s 1996 appeal was disposed of under this unlawful process.
The question for the Court of Appeal in Phillip’s case was therefore how to correct the illegality of the process used to determine his 1996 appeal; would he and the estimated 1500 others effected by the illegally have to appeal to the Privy Council, or was there another process? The Court of Appeal in Phillip’s case concluded that it had inherent jurisdiction to correct fundamental errors in its own process, and in the circumstances it decided to use that power to allow Phillip and the estimated 1500 others effected to have a further appeal under the correct process by simply making a written request for that to occur. Some of the appeals heard under this process were successful with some instances of convictions being quashed due to a substantial miscarriage of justice.
Phillip's first success representing himself. The High Court declared that the Department of Corrections unlawfully inflated his security classifications to maximum security after his 2014 escape to Brazil. Breaches of natural justice for failing to provide written reasons for the security classification reviews, and a breach of the requirement to review his security classification every 6 months were also declared.
The case highlights the importance of the function of the courts to hold government departments accountable to the rule of law without distinction. It shows that the court will intervene to protect us all when government departments abuse our rights by acting unlawfully. All will be treated equally before the law.
The infamous hairpiece case, and Phillip's second success. The High Court held that the Department of Corrections unlawfully revoked approval for Phillip to wear a hairpiece in prison because it failed to consider his right to freedom of expression.
The Court of Appeal in Attorney-General v Smith [2018] NZCA 24 found that wearing hairpiece was not freedom of expression but that Phillip nevertheless had a common law right to wear it. The Department of Corrections told the Court it didn't intend to revoke approval for the hairpiece again.
The Supreme Court in Smith v Attorney-General [2018] NZSC 40 said the freedom of expression issue raised a question of public importance but declined to hear an appeal on the point because Phillip had the hairpiece returned to him, the Court of Appeal decision was one of approach rather than principle, and because the issue of whether refusing a person to cover up something that they considered to be unsightly could result in a failure to treat with humanity and respect for their dignity could not be considered by that Court because it had not been by the lower courts.
The case raised an important question of the breadth of freedom of expression. Does it apply to clothing, make-up, hair lengh, facial hair, or a hairpiece? Could for example an employee of a government department restrict hair length such as a student's hair length at a school? The answer to that question is no, but only if the wearing of hair length as an example, is conveying or communicating something of meaning. Otherwise, apparently freedom of expression will not be engaged. The decision of the Supreme Court does however suggest a liberal approach to what will be conveying meaning should prevail.
This is a case Phillip took with his friend Arthur Taylor. The proceeding alleged that Arthur and Phillip had been unlawfully strip-searched as a part of a mass strip-search of 207 other prisoners following an incident whereby a group of prisoners had attacked some Corrections Officers with weapons after apparently drinking home brew (prisoner made alcohol). Neither Phillip, Arthur or any of the other 207 prisoners had been involved in the incident.
The High Court found that Phillip and Arthur had been unlawfully strip-searched because there was not reasonable grounds to believe that they had any unauthorised items in their possession, which is a legal requirement. A declaration was made to this effect and the Department of Corrections was ordered to pay $1,000 in compensation to each of them.
It is understood that subsequently, the Department of Corrections paid $1,000 to each of the 207 other prisoners as well.
Subsequently, in Smith v Attorney-General [2021] NZHC 1935 Phillip was granted standing to prosecute the Department of Corrections in circumstances where he himself had not been strip-searched. Phillip settled the proceeding. 10 prisoners that had been strip-searched were paid $1,000 each and provided with a written apology from the Department of Corrections.
There are 3 succeses embedded into this proceeding. The first is the declaration that circulars that blanket prohibited 100s of prisoners from being eligible for reintegration following Phillip's November 2014 escape were unlawful.
The second, was in an earlier decision in Smith v Attorney-General [2017] NZHC 1647 where an application to strike out Phillip's claim was dismissed because it was not accepted that Phillip was not impacted by the decision-making, but even if he wasn't, he could still bring the claim in the public interest to vindicate the rule of law.
And the third was an order in Smith v Attorney-General [2017] NZHC 2810 that the Department of Corrections provide Phillip with a large number of documents as evidence in support of his case.
The case highlighted the importance of government officials acting within the law when dealing with situations that they consider to be high risk, and high priority.
This proceeding sought judicial review of Corrections’ decision to decline Phillip a media interview. In the High Court, the decision was held to be unlawful and was quashed because distress caused to victims by seeing Phillip in the media was not sufficient of in itself to displace Phillip’s right to Freedom of expression, the High Court held.
The decision was subsequently overturned on appeal where the Court of Appeal held that the topics Phillip was to be interviewed about were not of significant public importance so victim distress in those circumstances took precedence. The Supreme Court did not view that the issue warranted leave being granted to hear an appeal before that court.
This application for judicial review was also a success. The preceding challenged a decision by Corrections to deny Phillip visits from four family members under the age of 18. The decision was quashed because Phillip and the family members’ guardian had not been provided with adequate reasons for the decision making, which was illegal requirement. Without written reasons, Phillip could not make meaningful use of a review process available to prisoners when an application to approve visitors is declined. The Court also noted an inconsistency between allowing Phillip to have telephone contact with the declined visitors but not AVL visits, and said that it must be relevant to a visits decision that Phillip had telephone contact with the declined visitors for sometime without any issues arising. Suppression orders were made to protect the identities of the declined visitors due to their ages being under 18.
This is a preceding Phillip lost. It was a challenge to a rule made by Rolleston Prison to make consensual homosexual activity between prisoners at two treatment units there a disciplinary offence that could result in a conviction and sanctions, including solitary confinement for prisoners that do not comply. Phillip said that this was discrimination as the rule did not apply to another comparable treatment unit, and did not apply to other units across the prison estate. He also said that the rule breached the Yogyakarta Principles on the application of international human rights law related to sexual orientation and gender identity, which requires that State parties must repeal all forms of sanction against consensual sexual activity based on sexual orientation, gender identity, gender expression, or sexual characteristics.
The Court held that the rule did not directly or indirectly discriminate on the basis of sexual orientation because its purpose was to promote the rehabilitation and reintegration of prisoners in the treatment units where the rule applied, and was to ensure the safety and security of the prisoners there. There was also no breach of the Yogyakarta Principles for the same reason.
It also said that a rule imposing a disciplinary process for a breach in treatment units at Rolleston Prison and not at a comparable treatment unit was not a material distinction for the purposes of discrimination. The Court held that the rule was a proportionate response in light of the objective that it aimed to achieve.
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