Bourne v Australian Capital Territory
[2019] ACTSC 127
•15 May 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bourne v Australian Capital Territory |
Citation: | [2019] ACTSC 127 |
Hearing Date: | 10 May 2019 |
DecisionDate: | 15 May 2019 |
Before: | Elkaim J |
Decision: | See [29] |
Catchwords: | REVIEW – GENERAL PRINCIPLES – Application for review of Magistrates Court decision – interstate transfer of prisoner – whether or not transfer of prisoner to New South Wales is in the interests of justice – whether or not transfer of prisoner is harsh or oppressive – application for review refused |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) ss 228, 231, 232 Human Rights Act 2004 (ACT) ss 19, 28 Prisoners (Interstate Transfer) Act 1982 (NSW) s 18 |
Cases Cited: | Macrae v Attorney-General for the State of Victoria (Unreported, Supreme Court of Victoria, Balmford J, 26 September 1996) R v Bourne; R v Manns [2018] ACTSC 35 Ryan v Attorney-General [1998] 3 VR 670; 91 A Crim R 428 |
Parties: | Alex Bourne (Plaintiff) Attorney-General of the Australian Capital Territory (Defendant) |
Representation: | Counsel Ms K Gunther (Plaintiff) Ms M Kent (Defendant) |
| Solicitors Aulich (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 138 of 2019 |
Decision under review: | Court: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 19 March 2019 Case Title: Attorney-General of the Australian Capital Territory v Bourne Court File Number: AP 6 of 2019 |
ELKAIM J:
This is an application for review of a decision made by Chief Magistrate Walker pursuant to s 232 of the Crimes (Sentence Administration) Act 2005 (ACT) (the Sentence Administration Act).
The matter that was before the Magistrates Court was an application by the Australian Capital Territory Attorney-General for the interstate transfer of the plaintiff, as a prisoner under sentence in the Australian Capital Territory (ACT), to New South Wales (NSW) so that he could face outstanding criminal charges in that jurisdiction. The application was the result of a request from the NSW Attorney-General.
On 19 March 2019, Chief Magistrate Walker made the following orders pursuant to s 231(a) of the Sentence Administration Act:
(a) That on 10 April 2019, the person in charge of the Alexander Maconochie Centre, 10400 Monaro Highway, Hume, ACT, deliver Alex Carlos Bourne into the custody of an escort, namely Detective Senior Constable Dean James;
(b) The person in charge of the Alexander Maconochie Centre is authorised to follow the direction of that order;
(c) That the escort Detective Senior Constable Dean James is authorised to have custody of Alex Carlos Bourne for the purpose of taking Alex Carlos Bourne from the Australian Capital Territory to the Queanbeyan Police Station and deliver him into the custody of the person in charge of the Queanbeyan Police Station.
The application is supported by two affidavits of Mr Chen affirmed on 27 March 2019 and 17 April 2019 respectively. At the time Mr Chen was the plaintiff’s solicitor. The defendant relies on affidavits of Ms Kent sworn on 16 April 2019 and 1 May 2019 respectively.
Mr Chen’s first affidavit recounts the history of the matter beginning with the plaintiff being sentenced, by me, on 27 February 2018 to imprisonment for eight years and eight months with a non-parole period of six years and three months. The starting date for the imprisonment was 21 December 2016. Accordingly the plaintiff will be eligible for parole on 20 March 2023 (R v Bourne; R v Manns [2018] ACTSC 35).
In June 2017 the Local Court at Queanbeyan in NSW issued an arrest warrant for the plaintiff alleging that he had committed three offences. These three offences are robbery in company, demand property in company with menaces with intent to steal, and steal motor vehicle.
The NSW Attorney-General asked the ACT Attorney-General to consent to the transfer of the plaintiff to NSW, pursuant to s 18 of the Prisoners (Interstate Transfer) Act 1982 (NSW). On 12 December 2018 the ACT Attorney-General consented to the transfer, acting pursuant to s 228(2) of the Sentence AdministrationAct. It is important to note that pursuant to s 228(1) an arrest warrant must be issued before the ACT Attorney-General consents, or refuses to consent, to the transfer.
The consent by the Attorney-General triggered an application in the Magistrates Court pursuant to s 231(b)(i) of the Sentence AdministrationAct. The application was heard by the Chief Magistrate on 13 March 2019. Her Honour delivered her decision on 19 March 2019 when she made the orders set out above.
No reasons for the decision have been published or are otherwise available.
Section 232 of the Sentence AdministrationAct governs the review of the Magistrates Court decision. It provides that the review is to be by way of rehearing on the evidence before the Magistrate and on any additional evidence placed before this Court. The first point made by the defendant was that error needed to be identified before the decision of the Chief Magistrate could be reviewed. The plaintiff said there was no such requirement. I think the defendant is probably correct but I intend to proceed as if error had been demonstrated. This is because neither party placed the reasons for the decision before me. An absence of reasons is indicative of error. In the ultimate result of this case I do not think the point is of any significance.
The plaintiff says the decision should be set aside for a number of reasons. These are set out in the Grounds of Application filed on 28 March 2019. These grounds assert that the interests of justice do not favour the transfer of the plaintiff to NSW. It is said that a transfer would defeat the rights he has under the Human Rights Act 2004 (ACT) (the HRA), that his entitlement to be visited by his family would be restricted and his rehabilitation and employment within the Alexander Maconochie Centre would be interrupted. It is said that these considerations outweigh the public interest in having the NSW charges proceed and, in any event, the NSW authorities are able to pursue the charges against the plaintiff without him being in NSW.
In addition the plaintiff submitted that it would be harsh and oppressive for him to be transferred having regard to his subjective factors. These include the progress he has made in rehabilitation, the fact that he is employed within the prison system and, if he were to be moved, family visits would become inconvenient.
The plaintiff’s secondary position was that even if it was in the interests of justice to transfer him to NSW, it was not necessary to do this in order for the NSW proceedings to continue.
The fundamental issue in this case is whether or not it is in the interests of justice, or it is harsh and oppressive for the plaintiff to be transferred to NSW. As a result of some suggestions made by me on 3 April 2019 the defendant made some enquiries of the NSW authorities, essentially to find a compromise position which would enable the plaintiff to remain in the ACT but the proceedings in NSW to nevertheless continue.
The first enquiry was made of the Registrar of the Local Court in Queanbeyan. The question put to the Registrar was whether or not, considering a Court Attendance Notice had been issued, the plaintiff could nevertheless appear in this Local Court by his legal representative. In other words his lawyer would appear in Queanbeyan, acting on his instructions, but the plaintiff would remain in the ACT.
The Registrar emailed back, having spoken to Magistrate Antrum. The answer to the question was that “We’re not able to proceed whilst the Defendant (referring to the plaintiff in these proceedings) remains in custody in the ACT, and not formally charged by NSW police”.
Following this response the defendant wrote to the officer in charge of the NSW investigation asking whether he would be prepared to withdraw the arrest warrant currently in place for the arrest of the plaintiff and then commence a separate proceeding in which the plaintiff would appear by a solicitor in the Queanbeyan Local Court. The officer, clearly not a man given to explanation, replied “No”.
When I enquired about the justification for the officer’s answer, I was told that it stems from s 228(1) of the Sentence Administration Act which, as noted above, requires the issue of an arrest warrant as a basic first step in the pursuit of a transfer request to the Attorney-General. It follows that if the arrest warrant were to be withdrawn then the entire process would be negated.
I think it fair to say that there is no practical alternative to the transfer. One would have thought that an appearance by video link would be possible. However the evidence, or lack of it, does not permit me to reach any conclusion other than that the transfer should be permitted or refused.
Accepting the validity of the plaintiff’s subjective factors, the problem he faces is that, as conceded on his behalf, there is simply no authority to support these factors justifying a refusal of the transfer order. In fact the authorities are to the contrary (for example Macrae v Attorney-General for the State of Victoria, unreported 26 September 1996 and Ryan v Attorney-General [1998] 3 VR 670; 91 A Crim R 428 (Ryan).
As stated in Ryan, at page 675, the transfer provisions must be read against their statutory context. This context is for the enabling of the transfer of prisoners between separate states and territories in order to assist with the administration of justice across Australia. The short point here is that the authorities in NSW wish to prosecute the plaintiff for the crimes he allegedly committed in that state. It must be in the interests of justice that they be permitted to do so. The alleged offences are not trivial and the plaintiff must face the charges.
It was put on behalf of the plaintiff that he could face the charges when he is released on parole in March 2023. This of course assumes that he is granted parole which is some four years into the future. The plaintiff submitted that delay was not a relevant issue because there was no identification question in this matter and the plaintiff’s co-accused had all pleaded guilty. In addition any police witnesses would have the benefit of their contemporaneous notes. It may be that there is only one lay witness who will be relevant to the prosecution and his identification of the plaintiff may not be a factor. Nevertheless there is no doubt that there will be other matters that need to be established in the plaintiff’s prosecution which will be subject to the passage of time. The administration of justice requires that persons facing charges, for their own benefit as much as that of the community, be brought to trial as expeditiously as possible.
On the straightforward application of the legislation the review must fail. There remains however the HRA argument advanced by the plaintiff. He relies primarily on s 19, which states:
19 Humane treatment when deprived of liberty
(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.
(2) An accused person must be segregated from convicted people, except in exceptional circumstances.
Note An accused child must also be segregated from accused adults (see s 20 (1))
(3) An accused person must be treated in a way that is appropriate for a person who has not been convicted.
The plaintiffs says that if he is transferred to NSW he will be deprived of the protection given to him by s 19 of the HRA because there is no equivalent Act in NSW. In my view this submission is based on flawed reasoning. The fact that there is no equivalent Act in NSW does not mean that the plaintiff will not be “treated with humanity and with respect for the inherent dignity of the human person”. There is no evidence before me that suggests that the treatment the plaintiff will receive in a NSW prison will be any different to that he receives in the ACT.
I also note that upon NSW Corrective Services taking over the sentence of the plaintiff, there will also no doubt be a transfer of his file including all aspects of his rehabilitation. In addition, once the offender has been dealt with he will be able to make a request to serve his sentence in the ACT.
It is correct to say that the HRA provides a mechanism for the enforceability of the rights that it provides. That does not necessarily mean however, that any mistreatment in NSW could not be the subject of complaint or other action.
It is also necessary to factor in s 28 of the HRA. This section states:
28 Human rights may be limited
(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.
(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:
(a) the nature of the right affected;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relationship between the limitation and its purpose;
(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.
In my view the provisions for the transfer of prisoners between states and territories fits within the reasonable limits contemplated by s 28(1). It must be a reasonable, if not positively productive, for there to be provision for the transfer of prisoners through Australia.
Orders
Accordingly, I make the following orders:
(a) Subject to Order (b), the application for review is refused.
(b) Order 1, made by the Chief Magistrate on 20 March 2018, is varied by amending the date therein to 24 May 2019.
| I certify that the preceding twenty-nine [29] numbered paragraphs are a true copy of the Reasons for judgment of his Honour Justice Elkaim. Associate: Date: 15 May 2019 |
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