Smith will be low, says lawyer

Phillip Smith at Rio de Janiero airport waiting for a flight to Chile.

Phillip Smith's lawyer believes it is not in the public interest to charge the convicted murderer for escaping custody.

Tony Ellis, who has acted for Smith in the past and received a call from him when he fled the country while on temporary release, said he expected Smith to call him after he arrived back in the country early today.

Dr Ellis said he thought Smith would be feeling "rather low" about his return.

"I would imagine that having successfully escaped and then being captured and then, worse still, being brought back to New Zealand, he could be in quite a poor state."

Dr Ellis said if police were to charge him with escaping custody he could be taken to court this morning.

But laying a new charge wouldn't have any effect on Smith's punishment. He is serving a life sentence for murder and child sex offences.

"The only real effect of charging him would be there's a public trial and then he gets five years' imprisonment, which effectively just means he can't apply for parole for the next five years, but there's not a parole board in the country that would let him out anyway.

"It's a waste of time."

Dr Ellis said he believed Smith could realistically be spending life behind bars, and a trial for escaping custody wouldn't change that.

"On a straightforward, rational basis, I don't think it is in the public interest."

Smith and his police escorts boarded a flight from Rio de Janiero to Chile. He was expected to catch a flight from Chile to Auckland that would land about 4am today.

Smith fled on November 6 using a passport issued in his birth name Traynor. He was captured in Rio at a backpackers hostel on November 13.

NZME.