23 May 2016

Murderer wants Commissioner to give evidence

6:53 pm on 23 May 2016

The lawyer for convicted murderer and sex offender Phillip John Smith says handcuffing his client in an open court was "barbarous" and resulted in his client losing his presumption of innocence.

Phillip Smith

Phillip Smith Photo: RNZ / Murielle Baker

Smith is awaiting trial on charges of escaping from custody and passport offences after flying to South America while on temporary release in November 2014.

At the time he was serving a life sentence for murdering the father of a boy he had sexually assaulted, for kidnapping, and other charges.

He has launched legal action in the High Court to ask for his latest charges to be dismissed.

Mr Ellis told the High Court in Auckland today that Smith appeared at an earlier district court appearance in handcuffs at the behest of security officers - not the judge.

He said there was no danger of his client running from court because his face was well-known. Mr Ellis said if security officers had concerns they should have put more staff in the dock or used a secure dock with high glass walls.

He said it was an abuse of process and was part of his argument to have the charges dismissed.

Mr Ellis said that was degrading and made Smith look like a dangerous man and formed part of his argument to have the charges dismissed.

The lawyer for the Attorney General, Austin Powell said Smith was handcuffed discreetly and the judge and others in the court took some time to notice.

Mr Powell said handcuffing a prisoner was no more damaging to their presumption of innocence than remanding someone in custody for a next appearance.

Justice Edwards has reserved her decision.

Today's hearing also included a separate argument about police issuing 23 media statements while Smith was on the run.

Smith also wanted to call the Police Commissioner to give evidence.

Crown lawyer David Johnstone told the court that calling the Police Commissioner as a witness was not relevant to the case and the press statements were released in light of a convicted murderer allegedly escaping custody.

But Mr Ellis said the publicity about the case was started by the Commissioner, who appeared to have spotted an opportunity for good public relations.

Justice Edwards has reserved her decision.

Smith claims human rights breach over work ban

Last week, Smith claimed in the High Court that his human rights had been breached after prison authorities stopped him from working on the inside.

Appearing by audio-visual link, he asked the court to order he be reinstated to his job - serving other prisoners food and collecting laundry.

Smith told the court he has been working inside prison for 20 years and has a clean working record.

He said some of that work was carried out in public, including on a marae and at a cemetery. He had also worked as an administrator of an inmate computer system that had since been audited and found to contain no banned material.

Smith said the decision to stop him from working was made months after his alleged escape and was arbitrary and discriminatory.

The authorities told him he had been dismissed so he could spend more time on his legal proceedings.

Smith also pointed out that the alleged escape was not from a prison, but while he was on release.

He said even with the work he was being locked in his cell for 19 hours a day and that was having an effect on his mental and physical health.

But the lawyer for the Attorney-general, Vicki McCall, said there was nothing unusual about maximum security prisoners being locked up for that long.

She said the decision to stop Smith from working was an operational decision and not one the courts should be involved in.

Ms McCall said Smith could have raised his concerns with the ombudsman or a visiting justice before applying to court, but instead he had gone straight to court.

She said the authorities' decision was not arbitrary and there had been a discussion with the regional commissioner of prisons.

Ms McCall said an internal prison investigation into Smith's escape had found he had manipulated prison staff and that he was no longer trustworthy.

She said working inside prison was an opportunity, not an expectation nor a right.

Justice Edwards has reserved her decision in that case also.

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