Murderer Phillip John Smith's escape: Government probe finds shortcomings

Stuff.co.nz

Murderer Phillip John Smith when he was recaptured in Brazil.

A series of failures within Corrections and other government agencies acted as "links in a chain" to allow convicted murder and paedophile Phillip John Smith's escape overseas while on work release, according to a damning inquiry.

The inquiry report said Smith's escape to Brazil could have been stopped if his nominated sponsor, who knew nothing about his proposed release to her address, had been contacted the day before his release.

In addition, his ability to obtain a passport while still in prison highlighted a lack of information sharing between relevant agencies about individuals in the criminal justice system who were barred from leaving the country.

SUPPLIED Supplied RORY SULLIVAN David White MAARTEN HOLL

Phillip John Smith, pictured as he was passing through Auckland Airport on his way out of the country.

Phillip Smith as he checked into a hostel in Brazil.

DETAINED: Phillip Smith after his arrest.

Police surround Smith.

Smith being taken away by police.

Phillip Smith departs Brazil.

Smith arrives back in New Zealand.

Rio's Cidade Maravilhosa Hostel, where Phillip Smith was arrested. A receptionist said Smith appeared to be a normal tourist.

Phillip Smith appears in court via an audio-visual link from prison.

Tony Ellis has been Phillip Smith’s lawyer since 2002.

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The inquiry, chaired by former High Court judge John Priestly QC, describes the collective failures that led to Smith's escape as "effectively links in a chain".

"Had one link been absent, then the escape almost certainly would not have occurred."

Smith fled last November after leaving Waikato's Spring Hill prison on temporary work release.

Smith fled last November after leaving Waikato's Spring Hill prison on temporary work release.
DAVID WHITE/STUFF

Smith fled last November after leaving Waikato's Spring Hill prison on temporary work release.

The report found that Corrections did not adequately assess or mitigate Smith's flight risk, saying his ability to obtain money and running of a business with the permission of prison authorities should have been better investigated.

The surveillance and monitoring of Smith's activities were also inadequate, while experienced Corrections officers had expressed strong misgivings about Smith that "were not always shared or objectively assessed" by authorities.

The report said there were deficiencies in the vetting of temporary release sponsors and the procedures in place to handle concerns about a release.

RORY SULLIVAN/Fairfax NZ

Passengers were shocked to hear they had shared a flight with a fugitive killer.

"Critically, had the nominated sponsor been contacted by Spring Hill staff before the day of the release to confirm that Mr Smith was expected to stay with him overnight, then Mr Smith's planned escape would have been thwarted before it even began.

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"The 'sponsor' in fact knew nothing of the release, and would certainly have said so if asked."

READ MORE:
* Who is Phillip John Smith?
* Murderer stalked victims from jail
* Fugitive Phillip John Smith says he's no threat
* Smith was 'kidnapped' - lawyer
* Phillip John Smith's release botched - report
* Fugitive in custody in Brazil

There were wider deficiencies in the "recognition, assessment and management of risk" for temporary programmes that had not been picked up by Corrections.

The report also made reference to the lack of information about criminals available to the Department of Internal Affairs, which issued Smith a passport in his birthname.

It said "no comprehensive systems were in place" to supply Internal Affairs with information about New Zealanders whose criminal status meant they could not leave the country.

It was irrelevant that Smith's passport application was under his birth surname, Traynor, as Internal Affairs had no information about his status as a prisoner under any name.

In addition, the Customs border alert system did not include any information about prisoners on temporary work release such as Smith, meaning no alerts were set off when he boarded his flight to Chile.

The report highlighted a series of gaps in the way information is shared and managed in the justice system and related agencies, and says a "step change" is needed to address the risks that led to Smith's escape.

The Government has accepted 34 of the 39 recommendations in the report.

It said police should lead work to develop "real-time access to birth, citizenship, passport and immigration databases" so criminals could not hold dual identities without all relevant agencies knowing.

Police would then work to create a database so criminals only held one official identity as far as Government agencies were concerned.

The Government has also agreed to make legislative change to the Parole Act, to make it a standard condition that offenders could not leave New Zealand without the permission of a probation officer.

It "agreed in principle" to reviewing the practicality of deactivating passports for serious offenders, "whether by the Department of Corrections seizing them or Internal Affairs cancelling them".

Measures to stop serious offenders and prisoners from obtaining passports were already being considered under a wider programme by the Department of Internal Affairs.

The Government also agreed to lifting the restrictions around day-release for eligible prisoners, which has been suspended since Smith's escape.

Justice Minister Amy Adams and Corrections Minister Peseta Sam Lotu-Iiga acknowledged serious mistakes were made.

Adams said the inquiry had done "a very good job and a very detailed job" of assessing the problems that led to Smith's escape.

"They've clearly found some real failings in this particular case, and while there's no indication that it's a systemic problem, when you're dealing with people of this calibre you can't afford to have these mistakes."

Adams agreed with the report's recommendation that information about offenders be shared more widely between agencies, and believed the Privacy Act had acted as a barrier in the past.

"You tend to get ... a concern about potential privacy breaches, but my view is that public safety and law enforcement have to be the overriding criteria and if we have to amend the law to make that clear, then that's certainly something I'm prepared to advance."

She said the Government had moved shortly after Smith's escape to ensure border protection agencies received information about offenders barred from travelling, with 11,000 people logged with red flags and "six or seven" offenders prevented from departing New Zealand as a result.

Adam said prospective legislation around identity verification would ensure that photographs and fingerprint matching could be used to avoid problems establishing prisoners' identities.

"We cannot have a system where it's not entirely clear who the person in our prison is and what identity they go under."

Adams said she was "very much open" to the report's recommendations related to the cancellation of passports for serious offenders, but the Government needed to first consider the Bill of Rights issues that would arise as a result.

Lotu-Iiga said there were "clearly ... a number of deficiencies" in how Corrections had handled Smith's case.

He said eight of the 24 recommendations specifically aimed at Corrections had already been implemented, with the rest expected to be in place within six months.

Changes since Smith's escape included the establishment of multidisciplinary teams, including psychologists, police and case managers, to assess prisoners before they were allowed out on temporary release.

"I think what we've got now is, we've tightened it up, but there are still some measures to be put in place in the next six months."

It was important to ensure that temporary releases could still be used to rehabilitate and reintegrate certain prisoners, while ensuring the security and safety of the New Zealand public, Lotu-Iiga said.

Labour justice spokeswoman Jacinda Ardern said it was clear that "some very basic mistakes and a lack of communication" had laid the groundwork for Smith's escape.

"What particularly stands out is that one phone call to his sponsor could have undermined his entire plan, and I think people would be surprised that he was simply taken at his word that...he would be staying with that sponsor, and no check was made."

Greens co-leader James Shaw said the report highlighted a "catalogue of errors" across a number of departments, most notably Corrections, that had led to the escape.

"It was a real perfect storm where if any one of those things hadn't happened, he wouldn't have escaped and to me that's just a sign of real systemic failure...to me, it points to a failure of governance," Shaw said.

Smith's lawyer Tony Ellis said the report was a "mammoth effort" but that "in parts they got carried away".

"It's a bit like the twin towers - a good excuse to tighten up everything, because something happened and civil rights flew out the window," he said.

"I think many of the recommendations the Minister says she is accepting need serious scrutiny. Some of them could be seen as just a kneejerk reaction."

The recommendation that some mental health patients have their biometric details collected without their consent seemed a step too far.

"This is supposed to be about an escape from the criminal justice system, not people with mental health escaping mental hospitals."

"It's a little 1984-ish. One needs to perhaps stand back and say 'what sort of information do we need, and why, and have we already got it?'."

"The privacy commissioner ought to be looking at this with a magnifying glass."

While the recommendations were rather wide ranging, the groups of agencies consulted may have been too narrow, he said.

"It's all the government saying things, there's no counterbalance in a number of serious ways." 

"You've not heard from any disability groups or mental health groups. It's a very unfair way to approach legislation."

Ellis was pleased that significant portions of the report had been redacted to ensure a fair trial, but was concerned that some comments about Smith's character had made it through.

Smith has made an application to dismiss his the charges at a fixture in early November. A trial date is set for January 18. 

 - Stuff

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