Lawyer Tony Ellis claims prison escapee Phillip Smith was 'kidnapped' from Brazil... and returned to New Zealand unlawfully.

Tony Ellis said the original arrest was for escaping custody, which isn't an offence under Brazilian law.

"I think he was unlawfully detained and bundled off to the New Zealand police - in simple terms he was kidnapped."

He said he also has emails sent between New Zealand Police, lawyers, the embassy and Brazilian authorities in which another disparity in the extradition becomes clear.

"You can't be extradited from Brazil to a country where you can serve more than 30 years imprisonment."

"Presumably the Brazilians think that is unjust."

Tony Ellis is applying for a stay of proceedings for Smith.

His client will next come up before the parole board in November.

Smith has a string of convictions for murder, violence, sexual offences and extortion. He has been described as manipulative by the parole board.