Bourne v Australian Capital Territory - [2019] ACTSC 127

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] ACTSC 127
Decision Date: 15 May 2019

CaseChat Overview and Summary

In the case of Bourne v Australian Capital Territory, the applicant sought a review of a Magistrates Court decision regarding the transfer of a prisoner from the Australian Capital Territory to New South Wales. The central dispute involved whether such a transfer would be in the interests of justice, and if it could be considered harsh or oppressive. The matter was heard in the Supreme Court of the Australian Capital Territory.

The legal issues at hand were whether the transfer of the prisoner would serve the interests of justice, considering factors such as the availability of appropriate facilities and the potential impact on the prisoner’s rehabilitation. Additionally, the court had to determine if the transfer would constitute an unjust or oppressive measure. The applicant argued that the transfer would not be in the interests of justice, and would impose unnecessary hardship.

The court considered the interests of justice to be paramount and took into account factors such as the availability of suitable facilities in New South Wales and the potential benefits to the prisoner's rehabilitation. The court concluded that the transfer would indeed be in the interests of justice, as it provided the best opportunity for the prisoner's rehabilitation and did not constitute an oppressive measure. Consequently, the application for review was dismissed.

The court's final order was that the application for review of the Magistrates Court decision be refused, as outlined in the judgment.

Orders

Orders of the court

See [29]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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