Summary of multi-agency review of Phillip Traynor (aka Phillip Smith) incident
On 6 November 2014, while on temporary release from prison, Phillip John Smith fled New Zealand on a flight to Chile. He is subject to a life sentence for murder in New Zealand. He was able to leave New Zealand on a passport under his birth name of Phillip John Traynor. He had renewed his passport in 2013 while he was in prison.
The objective of this multi-agency review is to identify the system changes required to minimise the possibility that relevant persons coming before the criminal justice system can leave the country, taking into account the events that led to Phillip Smith absconding the country while serving a custodial sentence. This is a multi-agency review by the Ministry of Justice, Police, Department of Corrections, the Ministry of Business, Innovation and Employment (Immigration New Zealand (INZ)), Department of Internal Affairs and Customs.
Other reviews and inquiries have been established to look into the Smith incident. The Department of Corrections published the results of its separate review on 25 November 2014 and has already taken interim measures to prevent similar incidents. A Government Inquiry, undertaken by Hon John Priestley CNZM QC and Simon Murdoch CNZM, has been established and is expected to report back with recommendations next year. This multi-agency review is the starting point for further work and development, and will feed into the work of the Government Inquiry.
Introduction to key concepts
Identity in New Zealand
An individual’s identity is first registered in New Zealand by one of two agencies - either with Births, Deaths, Marriages and Citizenship (through the Department of Internal Affairs) or INZ1. Core identity attributes, such as name at birth, birth date, birth place, nationality and potentially parents’ names, taken together constitute an anchor identity. There are only two government issued evidence of identity credentials that rigorously prove a person’s official identity and ownership of it – a passport and a RealMe Verified Account.
At common law in New Zealand, a person can lawfully use a new name without registering it, so long as the new name is not used for fraudulent or improper purposes. The new identity is established simply by using the new name and by repute, and the change comes into effect when the person starts using the name, e.g., a married name, Maori transliteration of a given European name, and an immigrant adopting an anglicised name for ease of use.
Charging a person for a criminal offence
Police file charges in around 80% of all prosecutions in New Zealand. There is no requirement in law that a person be charged under the name registered by the Registrar-General of Births, Deaths and Marriages. A person will be charged and prosecuted under the name they use and are known by at the time they are charged, whether or not that name is registered.
As a matter of course, Police make every effort to establish the true identity of a person at the time of entering the criminal justice system. A broad range of tools will be used for this, including documentation and relevant inquiries. Once the person’s identity is established they may have their fingerprints and photograph taken which is then linked to the originating identity.
A person whose identity has been established and who is charged will have all details recorded into the National Intelligence Application (NIA).
On charging an offender, Police will assign a Person Record Number (PRN) to that person that can then be used and shared by other justice sector agencies2. A PRN allows multiple transactions relating to the same offender to be linked to that offender despite differences in the names a person may have used in their criminal offending. If, through fingerprinting or otherwise, Police become aware that a person has appeared before in court under a different identity, they merge the identities into a single identity containing a combined set of names (with a Master Name) and PRNs (with a Master Name PRN).
Issuing and recalling passports
Section 4 of the Passports Act 1992 provides that a passport must be issued to every New Zealand citizen who applies for one. However, section 4(3)(b) allows an application for a passport to be refused where, for example:
- an arrest warrant is in force against the applicant
- the applicant is on bail, subject to a community-based sentence or home detention, or released under subpart 2 of Part 1 of the Parole Act 2002
- the applicant is subject to a sentence the effect of which requires the applicant to remain in New Zealand.
Section 10 of the Passports Act 1992 also allows for an issued passport to be recalled where there is an arrest warrant in force against the passport holder.
Customs’ Border management system allows agencies to request alerts against persons of interest that activate when the person enters or leaves New Zealand through an international port. Customs officials refer the person to Police, who can arrest the person. Justice sector agencies can (and do) request alerts to be put in place in certain circumstances, including:
- where a court has ordered that an offender surrender his/her passport and must not leave New Zealand as a condition on bail
- where a prisoner has escaped custody and Corrections considers the prisoner poses a flight risk from New Zealand
- where a Family Court has made an order preventing removal of a child from New Zealand
These requests for border alerts are made on an individualised basis in response to the circumstances of a particular case.
There is also an automated system that provides for border alerts to be placed against serious fine defaulters. The information sharing under this automated system is specifically authorised by legislation.
Events leading to Phillip Smith leaving the country
Born Phillip John Traynor in 1974, he had used the last name Smith since he was three years old when his mother applied the last name of his step father. Smith was the name he was known as throughout his childhood and teenage years but he never officially changed his name. In 1983 he obtained a passport in his birth name of Traynor.
Phillip Smith first entered the criminal justice system as a teenager and was known to Police, the courts and Corrections as Phillip John Smith. He was convicted of a number of offences between 1990 and 1996, culminating with his conviction and life sentence for murder in 1996. All charges and convictions were entered under the name of Smith.
In 2012, while in prison, Smith was convicted for ‘obtaining by deception’ under the name Smith.
In 2013, Smith applied for renewal of his passport (in the name of Traynor) whilst in prison. His application was successful and he was issued with a new passport.
On 6 August 2014, following a request, he was sent a criminal conviction report by the Ministry of Justice under his birth name (Traynor) which showed no criminal convictions.
On 6 November 2014, Smith was temporarily released from prison. He proceeded to the airport, passed through Customs and boarded a plane to Chile.
On 11 November, Smith’s passport (in the name of Traynor) was recalled by DIA under the Passports Act 1992.
On 13 November, Smith was detained by Brazilian authorities. He was released into the custody of NZ police officers on 28 November and escorted back to New Zealand, where he resumed serving his custodial sentence. He is currently facing charges relating to his escape and obtaining a passport.
Measures already taken to reduce the risk of similar incidents
In the wake of the Phillip Smith incident, measures have been taken to mitigate the risk of persons of high interest to the criminal justice system departing New Zealand to avoid justice.
In immediate response to this incident, on 11 November 2014 Corrections suspended all temporary releases of prisoners for reintegrative purposes (e.g. home leave, job interviews, attending a family event etc.). This suspension period was extended until 9 December 2014. A number of enduring instructions, placing restrictions on temporary releases, were also issued by the National Commissioner during the period of suspension to take immediate effect and remain in place until further notice following the suspension.
Other measures taken involve the manual exchange of information about particular categories of offenders from Corrections to Customs so that border alerts can be put in place for those offenders.
Recommendations for improvement
At any point in time, there are tens of thousands of persons of interest to the criminal justice system (eg, on bail, on parole, subject to warrants to arrest, serving a sentence in prison or in the community). While there is no reliable data, anecdotally very few persons of interest to the criminal justice system, particularly those of high interest such as Smith, avoid justice by fleeing New Zealand.
However, at key points, it is clear that relevant agencies did not have access to full or accurate information about Phillip Smith. He was able to exploit these information gaps and flee New Zealand. His case shows that measures need to be taken to improve the identity information available to the criminal justice system, to improve the management of identity information within the criminal justice system, to prevent persons of high interest to the criminal justice system departing New Zealand and to provide comprehensive information for criminal history checks or vetting.
This report identifies for Ministers’ consideration some reasonable measures that could be taken in the near term to address those matters, while signalling in some instances that further improvements could be made in the longer term. To a large extent, improving identification of offenders and better restricting international travel of persons of interest to the criminal justice system can be achieved by better information sharing or matching between government agencies. Agencies recommend that Ministers agree to further work being done on measures to:
- improve the operational arrangements for creating, sharing and managing the justice sector unique identifiers (in particular the Person Record Number (PRN)) so that data on offenders, including official names and proven and potential aliases, can be accurately and comprehensively matched across justice sector agencies
- improve Police and Corrections access to identity information held by DIA and INZ so that offenders can be linked with their anchor identity and other identities when entering the criminal justice and corrections systems
- improve existing processes for notifying Customs about persons of high interest to the criminal justice system, so that border alerts can be placed against those offenders, they can be identified at the border and stopped from leaving New Zealand
- improve DIA access to relevant offender information so that informed decisions can be made on issuing or recalling passports under the Passports Act
To achieve the better flow of relevant information between agencies, additional investment in ICT, operational infrastructure and, in some instances, enactment of legislation is necessary or desirable. Agencies will develop the details of these proposals in consultation with the Privacy Commissioner.
As a result of Ministers’ decisions on this report’s recommendations, agencies will undertake more detailed work on the new systems, timeframes and costs of implementation of the proposals, and provide an update to Ministers in March 2015.
1. INZ establishes identity via the sighting, recording and storing of passport information at the point of visa issuance, at the border for those not requiring a visa to travel to New Zealand or during the process to assess liability for deportation or turnaround.
2. The use of unique identifiers by justice sector agencies (including law enforcement agencies) is regulated by the Justice Sector Unique Identifier Code 1998. The code applies to: Corrections, New Zealand Transport Agency, Justice, Ministry of Transport, Police, MSD and Registrar of Motor Vehicles.