Phillip John Smith 'unlawfully returned to NZ' - lawyer

Phillip John Smith is facing charges over his alleged escape from custody. Photo / Nick Reed

Murderer and sex offender Phillip John Smith's lawyer is arguing he was unlawfully returned to New Zealand and his rights to a presumption of innocence have been breached.

Radio NZ reported today that Tony Ellis had applied for a stay of proceedings for charges laid over Smith's escape to Brazil last year, while he was on temporary release from prison.

Smith was jailed for life in 1996 for murder, sexual assault and kidnapping. He is now facing further charges - which he denies - over his alleged escape of custody last year.

If the stay were granted, the case against Smith on the latest charges would not go ahead.

"There have been a number of procedural matters that I believe have gone wrong," Mr Ellis told Radio NZ.

"There's been a breach of the presumption of innocence by a number of government persons making suggestions, quoted in the media, that Mr Smith is guilty. That includes a judge."

Mr Ellis said Smith wasn't lawfully returned to New Zealand from Brazil because under the South American country's law, nobody can be extradited to a country where they face more than 30 years in prison. As Smith was serving a life sentence in this country, he could be in jail for that long.

"Brazilian law says also that you can't use deportation as a surrogate method to get around extradition," Mr Ellis said.

"[Smith] was deported. He shouldn't have been. It looks very much like Mr Smith was essentially kidnapped and brought back to New Zealand."

The matter is expected in the Auckland District Court tomorrow for an initial hearing.