Does a murderer really have the right to wear a hairpiece? Are we really living in such mad times? Or might things be a little more complex than that?

I suspect the High Court decision that prison officials acted wrongly in taking Phillip John Smith's hairpiece from him is going to turn the talkback outrage meter right up to 11. Prisoners have a right to wear a toupee? That piece of shit can keep his rug on? It's PC gone mad, I tells ya! Mad!!

But before giving way to that sweet, sweet feeling of fuming anger towards the modern world and its idiocies, a quick check on what's actually happened. We'll start by remembering who Phillip John Smith is - most definitely he's a piece of shit who molested a young boy, then four years later returned to murder the boy's father. And in 2014 Smith abused his temporary prison release privileges to escape to Brazil, thereby making it considerably harder for other prisoners to transition back into society when authorities cracked down on the scheme.

So, you'll see no particular sympathy for Smith as a person from me. But for all that, he remains a human being possessed of certain rights that we recognise all persons as having. Those rights don't magically disappear when a person goes behind bars - unless someone in the comments section really wants to argue that it is quite OK for prison officers to run torture rings in our jails where they re-enact Ramsay Bolton's greatest hits.

One of the rights prisoners continue to possess is freedom of expression. Now, that right is not absolute. It can be (and in practice is) limited in all sorts of ways in a prison environment, so long as those limits can be "demonstrably justified". But because the right is guaranteed by Parliament, prison officials must recognise and respect it unless and until they can demonstrably justify the need to limit it.

Which is what the High Court has said Auckland Prison failed to do in regards Smith. First of all, the Court found that wearing a hairpiece constitutes a form of expression:

In the present case, I am satisfied that the wearing of a hairpiece by Mr Smith was an action taken by him in the exercise of his right to freedom of expression contained in the NZBORA. I have reached this conclusion for the following reasons:

(a)  the wording of s 14 is straightforward. It provides that everyone has the right to freedom of expression, and then goes on to say that that right includes the freedom to seek, receive and impart information and opinions of any kind in any form. The section contains its own partial definition, but that definition is inclusive and not exclusive;

(b)  the use of the words “of any kind in any form” in the section reinforces that an expansive approach should be taken;

(c)  the right to freedom of expression is not confined to things said or the expression of opinions. Freedom of expression can extend to physical acts;

(d)  not every physical act is protected by the right affirmed in s 14. It is only physical acts with expressive content that can be protected;

(e)  the wearing of a hairpiece is a physical act;

(f)  wearing a hairpiece was, for Mr Smith, an act with expressive content. In his initial affidavit he stated that he has:

... always been extremely sensitive about being seen bald.

He went on –

Having my hairpiece removed by prison authorities and then having my appearance mocked by New Zealand media on national television and in major newspapers would without any doubt in my mind have been one of the lowest points in my life. I felt totally belittled, degraded and humiliated;

(g)  these assertions are not of recent invention. Mr Smith obtained approval to the issuance of a hairpiece in the first place because he wanted to improve his self-confidence and self-esteem. He was supported in this regard by various prison officers.

In my judgment, in wearing a hairpiece, Mr Smith was endeavouring to present himself to others in a way with which he was comfortable. The wearing of a hairpiece was a physical act by which Mr Smith sought to promote his self- confidence and self-esteem. Mr Smith was trying to say – this is who I am and this is how I want to look. He was trying to affect the perception that others would have of him. His action in wearing a hairpiece had expressive content. 

While this conclusion certainly is a debatable one - even the judge in question recognises that it's at the margins of what the right was intended to protect - it isn't completely without precedent. After all, the High Court already has accepted that running in the nude is a form of "expression" as per s.14. So if I can "express" myself to the world by taking a naked jog on a forest path, why do I not "express" myself by covering over what I regard as a humiliating physical feature so that I can relate more easily and freely with others?

Anyway, once the Court found that Smith's wearing of a hairpiece falls under the NZBORA, s.14 guarantee, the rest of the case pretty much flows. That guarantee means that before prison officials can decide to take Smith's hairpiece from him, they must consider his expressive right and ensure that their decision is a justifiable limit upon it. Which the prison officials themselves admitted that they failed to do - they simply decided he shouldn't have the privilege of wearing a hairpiece anymore and took it off him. So the officials failed to follow the correct lawful procedure when deciding to remove the hairpiece, and so the Court declared their decision to be unlawful ... meaning Smith can have his hairpiece back.

Or, can have it back for now, at least. Because it remains quite open to the prison officials to now reconsider the matter, taking into account Smith's expressive rights as directed by the Court. And it very well may be that there are good security and disciplinary reasons that override his expressive rights (as is the case with much expression in a prison context). After all, one of the reasons why Smith was able to evade detection when he escaped was that his appearance with hairpiece was quite different to without it. That in itself may justify taking away the hairpiece - although against this, it seems exceedingly unlikely that Smith will be going anywhere in the community for quite some time.

But the point is that the prison officials can't just yank off Smith's hairpiece as a petty act of revenge for making them look bad by escaping, or purely to add to the misery of his imprisonment becuase he's a bad guy. Rather, unless and until they can show they considered his rights and have established sufficient reasons to demonstrably justify taking away the hairpiece, they have to let him retain it.

That's not that outrageous a proposition, is it? 

One last word. Given that the state of his hair obviously matters so much to Smith, I'll conclude with some free advice. He really needs to take a lead on coping with baldness from Larry David. Your hair is mostly gone. Deal with it. Because strategies to try and deny the fact are pretty ridiculous; indeed, as LD so rightly notes,  "I'm surprised Hitler didn't round up the toupee people."

Comments (18)

by Tom Semmens on March 16, 2017
Tom Semmens

"...I suspect the High Court decision that prison officials acted wrongly in taking Phillip John Smith's hairpiece from him is going to turn the talkback outrage meter right up to 11..."

Lead story TV3 News, victims groups are OUTRAGED.

by Chuck Bird on March 17, 2017
Chuck Bird

Andrew, I see Labour MP Stuart Nash admits call to scalp convicted killer and paedophile went too far.  I object to paying MPs who border on criminal offending themselves.  Is advocating a violent assult a criminal offence?  It seems clear prisoners have access to the internet. The quote below is from the Herald.

Writing on Facebook last night, Nash said: "What on earth is going on when a judge rules that a convicted murderer and paedophile's freedom of expression was ignored and that his rights had been breached because Corrections took his hairpiece?

"He has no rights!! He sexually abused a young boy and then 4 years later stabbed this boy's father to death as the man tried to protect his son!"

Nash went on to suggest that a fellow inmate should scalp Smith.

"Scalping is associated with American Indians but it was actually started by Europeans.

"Perhaps someone in jail who isn't too fond of monsters who destroy little boys[sic] lives by stealing their innocence in the worst way possible could reintroduce Mr Smith to the practise[sic]."



by Roger Brooking on March 17, 2017
Roger Brooking

Indeed, Stuart Nash has breached section 22 Of the Harmful Digital Communications Act whish states: A person commits an offence if 

(a) the person posts a digital communication with the intention that it cause harm to a victim;

(b) posting the communication would cause harm to an ordinary reasonable person in the position of the victim; and

(c) posting the communication causes harm to the victim.

The NZ Herald also appears to have committed the same offence by re posting what Staurt Nash wrote on his Facebook page.

by Chuck Bird on March 17, 2017
Chuck Bird

Thank you Roger.  I do not think you are a lawyer.  If you aren't you must be pretty good point that out.  On the law in this case you must be smarter than the legal section of the Herald.  Nash could have claimed he had too many wines. The Herald do not have the same excuse.

by Andrew Geddis on March 17, 2017
Andrew Geddis


Problem may arise with (c): "posting the communication causes harm to the victim". To mount a successful prosecution, the police would have to show that Nash's post has actually caused "serious emotional distress" to Smith. But maybe he should lodge a complaint, if only to remind MPs that the laws they vote onto the statute books apply to them as well!

On Nash's general decision to post what he did, but, I've had cause to tell him to shut up before!

by Tom Semmens on March 17, 2017
Tom Semmens

Stuart Nash and Andrew Little would fall to their knees singing hosannas of thanks if Smith were to lay a complaint against Nash. The Law and order vote would lap it up, Joe Sixpack will be outraged at Smith's unrepentant arrogance, and National would have one less stick to beat them with. 

Because alhough some will tut tut, no one - not one man jack of us - will really give a shit if an unrepentant pedophile meets a sticky, extra judicial fate. 

by Chuck Bird on March 17, 2017
Chuck Bird

Thank you Andrew.  You know how to interpret the law.  However, would it not be nice if laws could be written in a clear and unambiguous way so any lay person could understand it?  One could assume an OR when it the act means an AND. 

Does it mean (a) must be true OR (b) and (c) must be true?

by Roger Brooking on March 17, 2017
Roger Brooking

In regard to (c) surely harm has already been caused. Smith will now be taunted mercilessly by other prisoners threatening to scalp him.

by Dennis Horne on March 17, 2017
Dennis Horne

Since Hitler has been introduced already I feel free to say, upon conviction Smith/Traynor  would have lost his head to the guillotine, rendering any hairpiece redundant.

The timely execution of David Bain too might have saved us ~$10^7, and the humiliating experience for me of realising first, the justice system can be corrupted and second, half my compatriots are gullible simpletons.

by Andrew Geddis on March 18, 2017
Andrew Geddis


All three things must be true.


If and when that taunting happens, then harm will have been caused. 

by Ross on March 18, 2017

In regard to (c) surely harm has already been caused. Smith will now be taunted mercilessly by other prisoners threatening to scalp him.

Maybe you could send him some reassuring words to the effect that sticks and stones might break his bones but names will never hurt him. Didn't you also start a fund for David Bain? Maybe it'll be third time lucky...

by Ross on March 18, 2017

Stuart Nash has breached section 22 Of the Harmful Digital Communications Act

Well, that would be up to a Court to decide. As someone here has already mentioned, a prosecution and its attendant publicty would be like gold for Nash. 

Assuming that Smith has been diagnosed as a psychopath, can a psychopath suffer serious emotional distress?

by Ross on March 18, 2017

I found thefollowing comments, made by Judge David Harvey in August 2016, about the Harmful Digital Communications Act interesting. If Nash were charged and pled not guilty, he could wait a while before he was tried.

Of the charges to which pleas of “not guilty” have been entered, the dates of alleged offending tell an interesting story. As at the date of writing, none of the defended cases have been heard. By date of alleged offence the oldest took place on 19 August 2015. The most recent was alleged to have occurred on 21 April 2016. Eleven cases arose in 2016 – the remaining five arose in 2015. Of those, there has been one disposal where a charge was withdrawn by leave (Alleged offence date 28 December 2015, Dunedin District Court CR 15044006509). Although trial by jury is available, none of the defendants have elected trial by jury and have chosen to be dealt with by a judge alone.

The delay in getting cases to hearing must be a matter of concern. Apart from the well-known stresses that are a part of having to relive offending during the course of giving evidence, the definition of harm as serious emotional distress means that victims will have to revisit this specific form of harm many months after the alleged offending took place. This can hardly be said to assist the recovery process. In addition, a specific purpose of the HDC Act is to provide victims of harmful digital communications with a quick and efficient means of redress. Although this probably refers primarily to the civil enforcement process it is my view that it must apply with equal force to the victims of section 22 offences. The language of the clause specifically refers to victim, and the word victim is used in section 22 and especially section 22(5). Given this specific purpose behind the legislation, the hearing of cases involving offending against section 22 should be accorded priority and should be expedited.

by Kevin McCready on March 19, 2017
Kevin McCready

Andrew, You're surprised? I'm surprised with you. Hate speech, including yours, has no place in this analysis.

by Simon Connell on March 20, 2017
Simon Connell


Posters have been put up at Auckland University by a group which calls on its website for "physically fit" recruits to oppose multiculturalism - but the Herald has not been able to establish whether a genuine "white rights" group is behind them.


The posters, showing a young, fit white couple, carried the slogans "White lives matter" and "Let's take our country back".

A Police spokesperson said: "This poster falls under the Bill of Rights and freedom of expression. They don't appear to be inciting violence and crime and so at this stage this is not something we would comment further on."

First, they didn't come for the toupee people. Then, they didn't come for the white supermacists...

by Andrew Geddis on March 22, 2017
Andrew Geddis


"Hate speech"? Sorry, I think this overeggs things somewhat.

Just because our society demonises prisoners does not mean that I cannot call a particular prisoner a demon (or, "piece of shit") if his repeated actions warrant the label. And given Smith's ongoing lack of any discernable sense of moral responsibility to others (as outlined in my post and also as detailed in the Parole Board decision to refuse parole in 2014, prior to his escape), I'm happy with what I said. Sorry. 

by Kevin McCready on March 27, 2017
Kevin McCready

Andrew. Your emotive language is understandable but plays into the hands of those who want to deny his humanity. I don't believe in evil and try not to use the word, so I hope you understand my objection to your language.

by Andrew Geddis on March 28, 2017
Andrew Geddis

Your emotive language is understandable but plays into the hands of those who want to deny his humanity.

Whereas I would suggest that trying to sugarcoat Smith's actions and personality (as revealed over years of bad behaviour towards others) in order to convince people that he somehow is worthy of rights won't work as a strategy. If I simply give some mealy-mouted, handwaving "sure, Smith may not be the nicest guy" line then I think a lot of good, moral, nice people will have genuine reason to question my judgments on this issue.

Also, that is what I think of him (based on the public record of his actions over the years). I guess I don't really feel the need to temper my language about what I think on my own blogsite ... I've said similar and worse about other individuals in the past, and I'm sure I'll do it again in the future.

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