Senior Courts Act 2016, s 74(2) – questions of general or public importance – risk of miscarriage of justice – abuse of process – disguised extradition – New Zealand Bill of Rights Act 1990, s 22 – arbitrary detention – extra-territorial application
Phillip John Smith v R  NZSC 134.
Phillip John Smith is a convicted murderer who was sentenced to life imprisonment in 1996. In 2014, he escaped from custody in New Zealand while on short-term release and fled to Brazil.
Smith was arrested in Rio de Janeiro and detained for the purposes of deportation. The Federal Prosecutor’s Office sought an order for deportation that was made by the third Federal Criminal Court. There was then some debate between Federal Police and Interpol about the next steps as uncertainty developed about the propriety of deportation. New Zealand Police offered to send police officers to escort Smith back to New Zealand. This was material to the Brazilian authorities’ decision to seek deportation. Smith was later removed from Brazil on 27 November 2014.
Smith was subsequently convicted of two charges of escaping lawful custody.
Smith challenged his convictions on the basis that the deportation was unlawful. His argument was that the deportation was a disguised extradition in circumstances where extradition would not have been available and that the unlawful deportation was “knowingly connived in by the New Zealand Police, and that in consequence the prosecution was an abuse of process”.
Smith also asserted he was arbitrarily detained by the New Zealand authorities (in breach of s 22 of the New Zealand Bill of Rights Act 1990) after he left Brazil and arrived in the transit area of Santiago Airport in Chile.
The Court of Appeal rejected these arguments, holding that New Zealand authorities had not procured the deportation order and were not aware of any underlying illegality of the deportation order. The deportation order was made by a court of competent jurisdiction. The Appeal Court dismissed any suggestion of bad faith on the part of the New Zealand authorities. There was no abuse of process.
With respect to the s 22 Bill of Rights argument, the court proceeded on the basis that the Bill of Rights may have extra-territorial application and saw the real issue as being whether there was lawful authority for Smith’s detention from the point of boarding the aircraft until arrival in New Zealand. This turned on the success or failure of the disguised extradition abuse of process argument.
Smith sough leave to appeal to the Supreme Court.
Applicable principles: Senior Courts Act 2016, s 74(2) – questions of general or public importance – risk of miscarriage of justice – abuse of process – disguised extradition – New Zealand Bill of Rights Act 1990, s 22 – arbitrary detention – extra-territorial application.
Held: The application for leave to appeal is dismissed. The proposed appeal does not raise a question of general or public importance.
Smith’s deportation was pursuant to a court order and no error or misconduct was established. The factual findings made by the Court of Appeal meant the case wasn’t suitable for inquiring about the disguised extradition aspect of abuse of process.
The primary question in the s 22 Bill of Rights claim was whether this was in fact an abuse of process. There was no error in the Court of Appeal’s assessment.