Corrections will allow murderer Phillip John Smith to wear his toupee, but are appealing the wider logic of the case, which mandates that prisons must give prisoners freedom of expression and other rights.
Their appeal will focus on whether prisons have to set up processes to fully comply with the Bill of Rights Act 1990, which guarantees among other rights freedom of expression.
Corrections, who manage New Zealand’s prisons, prevented Smith from wearing the hair piece after he used it to disguise himself when he fled to Brazil while on temporary release in 2014.
That decision was overturned in March when a High Court judge agreed that Smith’s right to freedom of expression was being breached. This part of the case will not be appealed by Corrections.
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“Corrections will allow prisoner Phillip John Smith to retain his hairpiece, under certain conditions, while he is housed in his current security environment at Auckland Prison,” Auckland Prison Director Andy Langley said in a statement.
“The conditions are designed to ensure the safety, security and good order of Auckland Prison. More specific details about the conditions cannot be provided to protect the prisoner’s privacy.”
Corrections filed an appeal on Monday instead against the legal reasoning in the case.
“The Department’s appeal is against the legal reasoning in the High Court’s decision. The appeal relates to the process prison decision makers would have to follow to ensure decisions made in relation to prisoners comply with the New Zealand Bill of Rights Act 1990. This includes, but not limited to, a prisoner’s right to freedom of expression.”
“Corrections has concerns about the precedent-setting nature of the High Court’s decision and wide-ranging effect it could have on the Department’s future administrative decision-making abilities.”
“The decision with respect to Mr Smith’s hairpiece was separately taken and that particular decision is not the subject of the Department’s appeal.”
Smith told the High Court he was left humiliated when his baldness was revealed through national media as a result of publicity surrounding his escape.
He also argued that his hairpiece was an “artwork” that was protected by the right to freedom of expression.
Smith had been serving a life sentence for a murder in Wellington in 1996. He sexually abused a child when he was 17, and returned at the age of 21 to kill the child’s father.
He stabbed the 35-year-old Johnsonville man 19 times as the father tried to protect his 13-year-old son.
Smith was on temporary release when he disappeared to South America – and is now serving a further 33 months in prison for that escape.