Wigged killer Phillip John Smith's self-esteem expressed in his hair, lawyer says
The right to freedom of expression could be trivialised if it includes a convicted killer's wish to wear his hairpiece in prison, a court has been told.
The Crown has appealed against a ruling that a prison director's decision on Phillip John Smith's wig was the type of issue that needed to be considered against Bill of Rights principles.
Smith was wearing a dark wig as he watched proceedings via an audio-visual link from prison, at a hearing in the Court of Appeal in Wellington on Tuesday.
Solicitor-General Una Jagose, QC, said the issue of the wig lacked the expressive conduct or thought that was protected under the Bill of Rights, and risked trivialising the right to freedom of expression.
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It was impractical for a range of administrative decision-makers to have to make day-to-day decisions with a human rights text at their elbow, she said.
Prison officers were making decisions every day about security classification, prisoners' property, and similar administrative types of decision were being made in schools and hospitals.
But Smith's lawyer, Tony Ellis, said hair was a very personal and important part of freedom of expression.
Smith had become a public figure, and he should be entitled to express himself in a way that respected his self-esteem, Ellis said.
He had been given permission to wear a wig, and it was taken away from him essentially as punishment.
Prison managers would not have to work with a human rights text book at their elbow, but they did have to be properly trained to consider the Bill of Rights, Ellis said.
The court reserved its decision on the appeal. One of the issues the judges could consider is whether the appeal is moot, because Smith's chance to wear his wig had been reconsidered, and granted, after the original judge's decision that his right to freedom of expression applied to the question.
Smith was sentenced to life imprisonment in 1996 for murdering a man in Johnsonville, Wellington. The victim and his family had moved from Wairarapa to escape Smith, who was sexually abusing a boy in the family.
By 2013, Smith met the criteria for temporary release. On November 6, 2014, while on a 74-hour temporary release from Spring Hill Prison under supervision by an approved sponsor, he fled to South America.
He was arrested in Brazil and returned to New Zealand on November 29, 2014.
Smith had been given permission to have the custom-made hairpiece, but within days of being returned from Brazil the director of Auckland Prison at Paremoremo revoked the authorisation.
Smith took the matter to court, arguing that his rights had been breached. Justice Edwin Wylie did not go that far, but he did accept that Smith's right to freedom of expression should have been considered.