Brown v Australian Capital Territory
[2020] ACTSC 70
•3 April 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Brown v Australian Capital Territory |
Citation: | [2020] ACTSC 70 |
Hearing Dates: | 17–18 February 2020 |
DecisionDate: | 3 April 2020 |
Before: | Murrell CJ |
Decision: | Verdict for the defendants. See [125]–[129]. |
Catchwords: | HUMAN RIGHTS – UNLAWFUL DETENTION – Offences near the border of New South Wales and Jervis Bay Territory – Whether ACT court lacked jurisdiction – Whether detention “unlawful” within the meaning of the Human Rights Act – Whether s 18(7) creates a freestanding cause of action – Relationship between s 18(7) and tort of false imprisonment TORTS – FALSE IMPRISONMENT – Whether plaintiff falsely imprisoned – Compensation and damages |
Legislation Cited: | Bail Act 1992 (ACT) s 56A Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953) (European Convention on Human Rights) art 5 Magistrates Court Act 1930 (ACT) ss 18A, 25, 26, 42, 47, 70, 74 |
Cases Cited: | Carnegie v State of Victoria (Unreported, Supreme Court of Victoria, Full Court, 14 September 1989) Eastman v Australian Capital Territory [2019] ACTSC 280 Thompson v The Queen (1989) 169 CLR 1 |
Parties: | Daniel Wayne Brown (Plaintiff) Australian Capital Territory (First Defendant) Magistrates Court of the Australian Capital Territory (Second Defendant) |
Representation: | Counsel P Tierney with J Lawrence (Plaintiff) A Hochroth (First and Second Defendant) |
| Solicitors Tony Cullinan Lawyers (Plaintiff) ACT Government Solicitor (First and Second Defendant) | |
File Number(s): | SC 109 of 2019 |
Murrell CJ
Overview
The plaintiff claims compensation for unlawful detention in the Australian Capital Territory (ACT). Alternatively, he claims damages for false imprisonment.
The claim is brought against the ACT as the body responsible for the administration of justice through its courts and for the detention and custody of persons charged with criminal offences in the ACT and the Jervis Bay Territory (JBT), a Commonwealth territory. The second defendant (the ACT Magistrates Court) made the orders that caused the plaintiff to be detained and issued associated warrants.
No claim is made against the police involved in the matter. As members of the Australian Federal Police (AFP), they are officers of the Commonwealth for whom the defendants are not responsible.
On 23 December 2014, the plaintiff was arrested and charged in relation to an alleged assault on his partner, X, in the JBT (the JBT charges). On 23 December 2014, 14 January 2015, and 16 January 2015, the plaintiff was brought before the ACT Magistrates Court (the Court), which has jurisdiction in relation to offences committed in the JBT. On 23 December 2014, the plaintiff applied for bail. The application was refused.
On 14 and 16 January 2015, when the plaintiff came before the Court, bail was not sought. Eventually, it was ascertained that the incident had occurred in New South Wales (NSW) rather than the JBT. Consequently, on 3 February 2015, the plaintiff was released from custody in the ACT. Later, he was charged and sentenced in NSW.
Issues
The issues are:
(a)Was the plaintiff’s detention “unlawful” within the meaning of the Human Rights Act 2004 (ACT) (HRA)? Did any error concerning the location of the alleged offences affect the lawfulness of the associated remand orders and warrants?
(b)Does s 18(7) of the HRA create an independent (freestanding) cause of action for unlawful detention?
(c)Alternatively, was the plaintiff falsely imprisoned from 16 January 2015? Have the defendants satisfied the onus of showing that the imprisonment was lawful?
(d)What compensation or damages should be awarded?
Facts
The plaintiff and X were in a long-term de facto relationship. During 2014, the relationship deteriorated.
On 14 August 2014, the Court (sitting at the JBT) convicted the plaintiff of assaulting X and placed him on a 12-month good behaviour order. While subject to the good behaviour order, he was supervised by ACT Corrective Services.
On 4 December 2014, the plaintiff was driving with X from Vincentia in NSW towards Wreck Bay in the JBT. They argued. The plaintiff struck and injured X. She feared for her life.
There is only one road from NSW into the JBT. On the road, the border between NSW and the JBT is marked by a pay booth and visitor centre at the entrance to the Booderee National Park, which is in the JBT. In NSW, the road is known as Naval College Road. In the JBT, the road is known as Jervis Bay Road.
On 4 December 2014 at the Jervis Bay Police Station, AFP officers took a statement from X. Her statement indicated that the incident had occurred outside the entrance to the Booderee National Park, at the last curve on “Jervis Bay Road” before the entrance.
However, when police prepared a statement of facts concerning the alleged events, the statement recorded that the incident had occurred when the vehicle “stopped on Jervis Bay Road in the Jervis Bay Territory”. This error was repeated in the ACT Policing document entitled “Summary – Case 5717859” (ACT Policing Summary) (Exhibit RTB1, tab 9).
In these proceedings, the plaintiff deposed to the fact that the incident had occurred on a bend in the road to Wreck Bay, at least 300 metres from the JBT border.
On 10 December 2014, an ACT Corrective Services officer alleged that the plaintiff had breached a good behaviour order that had been imposed by the ACT Magistrates Court in August 2014 by failing to accept supervision, including by failing to attend Nowra Community Corrections Office.
As a result, on 11 December 2014, the Court (JBT) (Magistrate Morrison) issued a warrant for the plaintiff’s arrest for the alleged breach of good behaviour order.
At the time that this warrant was issued, the AFP laid an information on oath before Magistrate Morrison concerning the JBT incident. On 11 December 2014, a warrant was created, authorising and directing police to arrest the plaintiff and bring him before the Court. The warrant recited that the reason for the arrest was that, on 11 November [December] 2014 [sic], an information on oath had been laid before the Court alleging that, on 4 December 2014 in the JBT, the plaintiff had unlawfully confined X (case no. JC 2014/24).
The JBT charges asserted breaches of s 24 of the Crimes Act 1900 (ACT) (Crimes Act) (assault occasioning actual bodily harm, case no. JC 2014/22), s 30 of the Crimes Act (threat to kill, case no. JC 2014/23), and s 34 of the Crimes Act (unlawful confinement, case no. JC 2014/24). Each charge alleged that the incident had occurred in the JBT. The warrant referred to only one charge as, where there are multiple charges, it is the Court’s practice to issue a warrant for only one charge.
The warrant that had been issued on 11 December 2014 was not endorsed until 18 December 2014, possibly because “the Magistrate did not have the correct forms with him”: ACT Policing Summary.
23 December 2014
After learning that there was a warrant for his arrest in relation to the assault, on 23 December 2014, the plaintiff surrendered himself to the AFP in Canberra. He was arrested and brought before the Court.
When the plaintiff came before the Court on 23 December, he was not represented. There were five matters before the Court: the three JBT charges, the alleged breach of good behaviour order, and an allegation of breaching a bail undertaking. The bail charge alleged that, having given a bail undertaking to appear on 11 December 2014 in the JBT, the plaintiff had failed to appear.
I interpolate that, in the proceedings before me, there was evidence neither that the plaintiff had given a relevant bail undertaking nor that he had breached such an undertaking. I note that the informant for the alleged breach of bail undertaking was not the informant for the JBT charges.
In any event, the bench sheet relating to the alleged breach of bail undertaking recorded only:
Not preferred
I was informed that this cryptic notation meant that no plea had been required.
As to the charge that on 4 December 2014 the plaintiff had assaulted X and caused her actual bodily harm, the bench sheet noted:
Rem [remanded] 14/1/15 9.00 am (M) ACT Magistrates Court
Bail applied for. Rem in custody.
The ACT Policing Summary recorded that, on 23 December 2014, the police had recommended that there be bail conditions to address their concern for the safety of X and her family if the plaintiff was released on bail.
It is unclear whether and to what extent the alleged breach of bail undertaking influenced the Court’s decision to refuse bail.
On 23 December 2014 and later dates, the bench sheets for the other JBT charges were noted only briefly, but in a way that generally followed the notation for the charge of assault occasioning actual bodily harm. In effect, in relation to the JBT charges, the charge of assault occasioning actual bodily harm was treated as the lead charge.
The Court issued a remand warrant under the Crimes (Sentence Administration) Act 2005 (ACT) (Sentence Administration Act) authorising and requiring the Director General of Corrective Services (Director General) to keep the plaintiff in custody until 14 January 2015 (Exhibit RTB1, tab 11). Erroneously, the warrant referenced the bail offence; the Court had ordered that the plaintiff be remanded in custody only on the JBT charge of assault occasioning actual bodily harm, but the warrant did not refer to the assault charge.
14 January 2015
On 14 January 2015, the plaintiff was brought before the Court (Magistrate Morrison). From that date, he was represented by the Aboriginal Legal Service.
The bench sheet for the bail matter noted:
Charge withdrawn
Notwithstanding the withdrawal of the bail charge and the fact that the plaintiff was legally represented, the Court record indicated that there was no application for bail. This was probably because, on 14 January, the plaintiff foreshadowed making a bail application on 16 January 2015 in the Court’s “A2” list which, among other things, deals with bail applications.
The Court note relating to the allegation of breach of good behaviour order recorded:
BNAF [bail not applied for]
D is RIC [defendant is remanded in custody] to 16/1/15 @ 10 in A2 list
The bench sheet for the JBT charge of assault occasioning actual bodily harm recorded:
BNAF
R [remanded] 16/1/15 @ 10 – for bail application (A2 list)
On 14 January 2015, the Court issued a remand warrant under the Sentence Administration Act to the Director General, authorising him to keep the plaintiff in custody and return him to Court on 16 January 2015 (Exhibit RTB1, tab 13). Although the warrant incorrectly referenced CC 14/03329 (the alleged breach of good behaviour order), it also correctly referred to the charge of assault occasioning actual bodily harm.
16 January 2015
On 16 January 2015, the plaintiff was brought before the Court (Chief Magistrate Walker). Despite the plaintiff’s earlier indication that he would seek bail, he did not do so.
The Court note relating to the alleged breach of good behaviour order recorded:
BNAF – RIC re other matters
Adjn [adjourned] – admit or not –
10/2/15 @ 9.15 am
The bench sheet for the JBT charge of assault occasioning actual bodily harm recorded:
PNG [plea not guilty]
BNAF
RIC 19/2/15 @ 10am FH [for hearing] JBT
(may continue 20/2/15)
On 16 January 2015, the Court issued a remand warrant to the Director General, authorising and directing him to keep the plaintiff in custody and return him to Court on 19 February 2015 (Exhibit RTB1, tab 14). Originally, the warrant referred to CC 14/03329, the charge concerning breach of good behaviour order, but that reference was amended to JC 14/22, the charge of assault occasioning actual bodily harm. The relevant offence was detailed as the charge of assault occasioning actual bodily harm.
Events in late January 2015
An entry in the ACT Policing Summary dated 21 January 2015 stated that the informant had attempted to contact X to confirm the location of the offences but had been unable to do so.
An entry in the ACT Policing Summary dated 31 January 2015 stated that, on that day, X had attended the Jervis Bay Police Station and travelled with police to the location of the incident. She had shown them a location about 300 metres from the entrance to the National Park. The entry recorded that X had apologised for earlier stating “that the alleged offence had definitely occurred within the Jervis Bay Territory”.
On 31 January 2015, police advised the Commonwealth Director of Public Prosecutions of the location of the incident. On the same day, the Commonwealth Director of Public Prosecutions contacted the plaintiff’s solicitor and advised him that, as the events had occurred in New South Wales, the Court had no jurisdiction to proceed with the JBT charges and the matter would be urgently relisted for the purpose of withdrawing the JBT charges.
3 February 2015
On 2 February 2015, pursuant to s 437 of the Crimes Act, the Court ordered that the plaintiff be produced to the Court on 3 February 2015. The Court cancelled the warrant for remand that had been issued on 16 January 2015.
On 3 February 2015, the plaintiff was brought before the ACT Magistrates Court (Magistrate Boss).
The Court note relating to the breach of good behaviour order recorded:
Breach admitted.
No further action taken on breach.
The bench sheet for the JBT charge of assault occasioning actual bodily harm recorded:
No evidence to offer.
Information dismissed.
D to be released on bail.
The bench sheets for the other JBT charges also recorded that, on 3 February 2015, the prosecution offered no evidence and the charge was dismissed.
Having spent 43 days in custody (including both 23 December 2014 and 3 February 2015), the plaintiff was released.
In the proceedings before me, the evidence did not explain the 3 February 2015 reference to release on bail.
Later, the plaintiff was arrested by NSW Police, charged and remanded in custody in NSW.
On 9 September 2015, the Nowra Local Court convicted and sentenced the plaintiff for offences of assault occasioning actual bodily harm and intimidation with intention to cause fear of physical harm, committed on 4 December 2014. He was sentenced to 11 months’ imprisonment from 9 September 2015 and a five-month non-parole period was imposed.
On appeal to the Nowra District Court, the 11-month sentence for the offence of assault occasioning actual bodily harm was confirmed but backdated by a period of 43 days, to 29 July 2015, and the non-parole period was reduced to 4 months, from 29 July 2015 to 28 November 2015. The District Court backdated the sentence to recognise the period of six weeks that had been served in custody in the ACT. In relation to the offence of intimidation, the sentence of imprisonment was set aside. In lieu, the plaintiff was sentenced to an 18-month good behaviour order.
Impact of detention on the plaintiff
The plaintiff is a Wadi Wadi man who belongs to the Yuin Nation. He was raised in the Wreck Bay village in the JBT and remains closely connected to that Country.
As at December 2014, the plaintiff was 34 years old.
From 2000 to 2014, the plaintiff was in a de facto relationship with X. There are four children of the relationship. Currently, the children are aged between 6 and 17 years.
When the plaintiff was detained in custody on 23 December 2014, he was shocked, confused, and upset. Because he had attended the police station voluntarily, he had not expected to be detained. He was humiliated by a strip search and, when he was confined and could not see the outside world, he felt scared and believed that he “might go mad”.
At the first appearance in the Court, the plaintiff was unrepresented. He did not know whether he could speak to the magistrate or what, if anything, to say.
Over the 2014/2015 Christmas period, the plaintiff was held at the Alexander Maconochie Detention Centre (AMC). It was his first experience of imprisonment. He had difficulty coping with the confinement. He missed important family occasions, including fishing and food gathering at Wreck Bay, and otherwise celebrating the Christmas/summer period. He felt confused, very sad, lonely, and isolated from his family and community.
Because of the travel distance, it was difficult for the plaintiff’s family to visit him in Canberra. When the plaintiff’s father did visit, he “was obviously disappointed” with the plaintiff.
On one occasion while he was in the AMC, the plaintiff was assaulted and threatened by other inmates. He was too frightened to report the incident. The incident made him more anxious. Following the assault, inmates subjected the plaintiff to verbal abuse for being a “woman basher”. Eventually, he requested removal to another part of the AMC.
When he was released on 3 February 2015, the plaintiff was disorientated and concerned about how he would find his way back to the South Coast.
For a significant period after he was released from custody, the plaintiff was emotionally labile and found it difficult to sleep. He felt scared and depressed. Even now, he sometimes thinks about the prison assault.
The plaintiff has received no apology or offer of compensation.
There is no suggestion that the defendants (the ACT and the Court) failed to act honestly and in good faith in the execution of their duties.
Statutory background
Section 4A(1) of the Jervis Bay Territory Acceptance Act 1915 (Cth) (JBTA Act) provides that, in general, the laws of the ACT are in force in the JBT as if the JBT was part of the ACT. Section 4D(1) of the JBTA Act provides:
Each court of the Australian Capital Territory has jurisdiction in and in relation to the Territory, and the Australian Capital Territory Supreme Court Act 1933 and the practice and procedure of each such court for the time being in force apply in the Territory as if the Territory formed part of the Australian Capital Territory.
The warrant relating to the alleged breach of good behaviour order was issued under s 104 of the Sentence Administration Act, which enables a warrant to be issued where a magistrate is satisfied by information on oath that there are reasonable grounds for suspecting that a person has breached any of their good behaviour obligations.
For the purposes of ch 3 of the Magistrates Court Act 1930 (ACT) (MCA), s 18A defines “defendant” as “a person against whom an information is laid”.
The following ch 3 provisions are relevant to the commencement of proceedings in the Court, remand in custody, and the issue of warrants before and during proceedings:
25Informations
A proceeding may be started in the court by information laid by the informant or by a lawyer or anyone else representing the informant.
26Laying of informations
An information may be laid before a magistrate in any case where a person has committed or is suspected of having committed, in the ACT, an indictable offence or an offence that may be dealt with summarily as provided in section 19.
42Issue of warrant and summons
(1) This section applies if—
(a) an information is laid before a magistrate under division 3.3.2 against a person for an offence; and
(b) the information is substantiated by the oath of the informant or a witness; and
(c) the person is not in custody.
(2) The magistrate may issue a warrant for the person’s arrest, and for bringing the person before the court to answer to the information and to be further dealt with according to law.
…
47Form of arrest warrant
A warrant issued on an information must—
(a)briefly state the offence or matter of the information; and
(b)name or otherwise describe the person against whom it is issued; and
(c)order the police officers to whom it is directed to—
(i) arrest the person; and
(ii) bring the person before the court to answer the information and to be further dealt with according to law.
70Remand of defendant
(1) This section applies if the court considers it is necessary or desirable to adjourn the hearing of a proceeding for an indictable offence—
(a)because of the absence of witnesses; or
(b)for any other reasonable cause.
(2) The court may—
(a)adjourn the hearing; and
(b) order the remand of the defendant into custody for a stated period; and
(c)order the director‑general to arrange for the defendant to be brought before the court at a stated time and place for the hearing.
…
74Remand of defendant before decision
The court may, at any time before the court gives its decision in a case, order that the defendant be remanded in custody.
(Emphasis added, notes omitted)
A remand order, including an order for the remand of a person during an adjournment of proceedings, authorises and requires the Director-General to take the remandee into custody, keep them in custody under full-time detention under the order, and return them to the Court (the “remanding authority”) as required by the order: Sentence Administration Act s 16.
Section 17(1) of the Sentence Administration Act provides:
17 Warrant for remand
(1)The remanding authority must issue a warrant for the remand of the remandee in the director‑general’s custody.
The fact that the Director-General acts primarily under the order for remand, rather than the warrant, is reinforced by s 19 of the Sentence Administration Act, which provides:
19Remand not affected by want of proper warrant
The validity of the remandee’s remand in custody under full-time detention under this Act or the Corrections Management Act 2007 is not affected by any failure to issue a proper warrant of remand, if the remand is in accordance with the remanding authority’s order for remand.
Did the Court lack jurisdiction to order arrest and remand in custody?
The plaintiff submitted that, from the outset, the Court had lacked jurisdiction to entertain the JBT charges because the offences had been committed in NSW. He said that the remand orders and warrants had been infected by this “jurisdictional error”. Consequently, his detention had been “unlawful” within the meaning of the HRA and without lawful justification for the purposes of the tort of false imprisonment.
In Thompson v The Queen (1989) 169 CLR 1 (Thompson), the bodies of two deceased persons had been found in the ACT, very close to the NSW border. When charged with murder, the accused challenged the jurisdiction of the Supreme Court of the ACT to try him on the ground that the Crown had not shown beyond reasonable doubt that the deceased had died in the ACT.
The central issue was the standard of proof applicable to establishing jurisdiction (in the sense of territorial jurisdiction). However, several members of the Court reflected on the nature of the “jurisdiction” in question. Brennan J said at 21–22:
Of course, the judge has jurisdiction to inquire into any facts that are necessary to determine the court’s jurisdiction to hear and determine the charge but, in this country, I do not think that jurisdiction to hear and determine a charge depends on the fact – as distinct from the allegation – that the crime occurred within a particular territory.
The term “jurisdiction” in this context is attended with a certain ambiguity. It may refer to the authority of the court to hear and determine the issues arising in a criminal trial, or it may refer to the power of the court to enter a judgment of conviction and to impose a penalty after hearing and determining the issues. … [I]f the charge alleges the commission of an offence against the law administered by the court (the law of the forum), the court has jurisdiction to hear and determine the charge, but when an issue is raised as to the locality of the offence the jury may have to decide the issue in order to determine whether the conduct charged falls within the territorial ambit of the law of the forum. Locality then becomes a fact on which liability to conviction depends. …
Although the locality of an element of the offence charged may affect the power to convict and punish, the jurisdiction of the court to hear and determine the charge depends on what the indictment charges. …
Similarly, at 33–34, Deane J observed:
The criminal jurisdiction of the Supreme Court of the Australian Capital Territory … exists in a case where the accused is charged with murder under that law regardless of whether, in the event, the evidence establishes all or any of the ingredients of the offence charged. …
The fact that, ultimately, the prosecution does not prove an allegation that an offence occurred within the territorial jurisdiction of a court does not retrospectively deprive the court of jurisdiction to hear the proceedings, although it does deprive the court of jurisdiction to convict and sentence for the alleged offence.
In this case, in compliance with s 26 of the MCA, the proceedings for the JBT offences were validly commenced in the ACT by an information laid before a magistrate alleging that the plaintiff had committed offences in the JBT. The information was valid on its face. Pursuant to s 42(2) of the MCA, the laying of the information entitled Magistrate Morrison to issue a warrant for the plaintiff’s arrest to bring him before the Court to answer to the information. Pursuant to ss 70 and 74 of the MCA, the Court was empowered to remand the plaintiff in custody. Each remand order authorised and required the Director-General to keep the plaintiff in custody and return him to the Court in accordance with the order.
It follows that the actions of individual magistrates, the Court, and the Director-General were lawful. The actions accorded with the procedures established by law for bringing a person before the Court to answer an allegation that they had committed an offence that fell within the Court’s jurisdiction (including the Court’s territorial jurisdiction).
Human Rights Act
The plaintiff claimed compensation under s 18(7) of the HRA, which provides:
18 Right to liberty and security of person
(1)Everyone has the right to liberty and security of person. In particular, no-one may be arbitrarily arrested or detained.
(2)No-one may be deprived of liberty, except on the grounds and in accordance with the procedures established by law.
…
(7)Anyone who has been unlawfully arrested or detained has the right to compensation for the arrest or detention.
…
Part 5A of the HRA concerns the obligations of public authorities. Courts are excluded from the definition of “public authority”, except where they are acting in an “administrative capacity”: s 40(2). In relation to the grant or refusal of bail and the issue of warrants, the Court was acting in an administrative capacity.
The plaintiff relied upon the following provisions of pt 5A:
40B Public authorities must act consistently with human rights
(1)It is unlawful for a public authority—
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
…
40C Legal proceedings in relation to public authority actions
(1)This section applies if a person—
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.
(2)The person may—
(a)start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s rights under this Act in other legal proceedings.
…
In order to succeed on the claim, at the very least, the plaintiff needed to establish both that s 18(7) creates a right to compensation and that his detention was “unlawful” within the meaning of that provision.
Was the plaintiff’s detention unlawful within the meaning of s 18 of the HRA?
The plaintiff submitted that the term “unlawful” should be distinguished from the term “illegal”; that “illegal detention” means detention that is expressly prohibited by law but, for the purposes of s 18(7) of the HRA, “unlawful” detention extends to other detentions that are neither expressly authorised nor expressly prohibited by law, including “arbitrary” detention within the meaning of s 18(1) and detention otherwise than on the grounds and in accordance with the procedures established by law, as proscribed by s 18(2) of the HRA.
Further, the plaintiff submitted that s 18(1) “arbitrary detention” extends to a detention that is “tainted in a manner which can attract remedial consequences” (to adopt the plaintiff’s expression).
I do not accept that the s 18(7) term “unlawful detention” can be defined by reference to conduct that is neither expressly authorised nor expressly prohibited by law. The expression “unlawful” implies something more than legal neutrality.
In any event, for present purposes, it is unnecessary to decide the limits of s 18(7) “unlawful detention” because where—as in the present case—detention is expressly authorised or required by law, the detention is lawful, not unlawful.
The circumstances of the present case are similar to those that have been considered in other cases in this jurisdiction.
In Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 (Monaghan), before arresting the plaintiff for failing to comply with a bail condition that required him to report to police, the arresting officer had inquired of the relevant court registry and had been misinformed that there was a daily reporting condition. In fact, the reporting condition had been varied so that the plaintiff was required to report three times a week. Mossop AsJ held that, as s 56A of the Bail Act 1992 (ACT) permitted a police officer to arrest a person if the officer believed on reasonable grounds that the person had failed to comply with a bail condition and, in the subject case, the arresting officer had held that belief on a reasonable ground, the arrest and associated detention were lawfully justified: at [73]. Consequently, even if s 18(7) of the HRA provided a freestanding cause of action, the plaintiff could not succeed on a claim under s 18(7) of the HRA because the police conduct had been lawfully justified: at [234].
A similar approach was taken in Eastman v Australian Capital Territory [2019] ACTSC 280 (Eastman), where the plaintiff recovered compensation for wrongful conviction under s 23(1) of the HRA. The plaintiff had also claimed compensation under s 18(7) of the HRA. Elkaim J made obiter observations about the s 18(7) claim, although he did not need to decide it. At [154], his Honour said:
Although it is possible to argue that the conviction was unlawful because s 18(2) says no person may be deprived of liberty “except on the ground and in accordance with the procedures established by law”, the contrary argument is that the trial ran according to law.
In this passage, his Honour was not considering—as the plaintiff argued in this case—whether s 18(7) can respond to a breach of s 18(2). Rather, his Honour was colliding the right in s 18(2) with that in s 18(7). The relationship between the two was irrelevant to the point that his Honour was making at [153]–[158], i.e. that, as the plaintiff had been arrested lawfully, tried according to law, and detained following a conviction, neither his arrest nor his detention had been “unlawful” within the meaning of s 18(7). The plaintiff had not established “unlawfulness”, which his Honour described as “the threshold for the possible application of s 18(7)”: at [158].
The relationship between s 18(7) “unlawfulness” and s 18(2) “arbitrariness” has been considered in this jurisdiction.
In Monaghan, the plaintiff had claimed compensation under s 18(7) of the HRA. At [228]–[231], Mossop AsJ referred to New Zealand decisions and communications of the UN Human Rights Committee concerning art 9(1) of the International Covenant on Civil and Political Rights (ICCPR). The decisions and communications distinguished between an arrest or detention that was unlawful and one that was “arbitrary” in the sense that it was lawful but unreasonable. At [233]–[234], Mossop AsJ said:
[Section] 18(7) must be read in the context of the other provisions of s 18, particularly s 18(1) and (2). The text of s 18(7) refers to “unlawful”, not to “arbitrary”, arrest and detention. That is in a context where s 18(1) refers to the distinct concept of arbitrariness. The use of different words is a strong indication that the entitlements under this subsection are of different content. Similarly, in s 18(2) the absence of compliance with “procedures required by law” may or may not render arrest or detention unlawful but it is unlawfulness that is the touchstone in s 18(7). Because of the different language used in the subsections of s 18, it would be inconsistent with the text and structure of s 18 to permit the reference in s 40B to convert the rights in s 18(7) from that which is stated in the subsection to something else. That is particularly so when the purpose of the exercise is not to obtain a remedy under pt 5A of the Act, in which s 40B appears, but a freestanding remedy outside the scope of pt 5A.
The plaintiff submitted that Mossop AsJ had not considered whether, of itself, a breach of s 18(1) or (2) could found a s 18(7) claim for “unlawfulness”.
In fact, his Honour did consider this matter. His Honour was of the view that the inquiry under s 18(7) was whether an arrest or detention was “unlawful” and that s 18(1) and (2) each referred to a different concept, i.e. arbitrariness and failure to comply with procedures established by law respectively. In other words, neither a s 18(1) arbitrary detention nor a s 18(2) detention flowing from a failure to comply with procedures established by law could found a s 18(7) claim unless that detention was also an unlawful detention within the meaning of s 18(7).
Refshauge J took a similar approach in Lewis v Australian Capital Territory [2018] ACTSC 19; 329 FLR 267 (Lewis) when his Honour rejected the plaintiff’s contention that a breach of s 18(1) of the HRA would, by itself, entitle the plaintiff to compensation under s 18(7), observing that a detention may be arbitrary but not unlawful within the meaning of s 18(7): at [431]–[433]. I note that Lewis was appealed on grounds irrelevant to the present matter; the appeal was dismissed in the ACT Court of Appeal and is awaiting hearing by the High Court.
The plaintiff made much of a passage in Lewis at [530] where, having confirmed that there was no remedy for the rights contained in s 18(1) and (2) of the HRA, Refshauge J said:
Again, should there be a residual area of operation, namely that a breach of the right [not] to be arbitrarily detained, being wider that [sic] the requirement for which the tort of false imprisonment is a remedy, namely that the imprisonment be unlawful, so that this breach is not so remediable, then that does not apply in this case for there is no doubt that the imprisonment of Mr Lewis was unlawful.
(Emphasis added)
Contrary to the plaintiff’s submission, in that passage his Honour was not stating that s 18(1) arbitrary detention may itself found a claim; rather, his Honour was adverting to the scenario in which a particular instance of arbitrary detention was also an unlawful detention but was not a false imprisonment. His Honour characterised such an arbitrary/unlawful detention as having a “residual area of operation” beyond that occupied by the tort of false imprisonment.
Having regard to the analysis in R (on the Application of Jalloh (formerly Jollah)) v Secretary of State for the Home Department [2020] UKSC 4 (Jalloh) at [29]–[34] (see below), even that proposition may be doubtful.
I do not accept the plaintiff’s submission that s 18(1) “arbitrary detention” can, in part, be defined by reference to detention that is “tainted in a manner which can attract remedial consequences”. That submission proposes a meaning that is devoid of substance. The ordinary meaning of “arbitrary” is not determined by the existence of “remedial consequences”; rather, it refers to caprice, uncertainty, unruliness, or unreasonableness.
The authorities to which the plaintiff referred neither aid an understanding of “arbitrary detention” nor support the proposition that a s 18(1) “arbitrary detention” is an “unlawful detention” within the meaning of s 18(7). Coincidently, a particular “arbitrary detention” may also be an “unlawful detention”. However, in relation to s 18(7), the sole issue is whether the detention in question is an “unlawful detention”.
As stated above, in this case the actions of individual magistrates, the Court, and the Director-General were not unlawful. They were lawfully justified, if not lawfully required. They accorded with the procedures established by law for bringing a person before the Court to answer an allegation that the person had committed an offence that fell within the Court’s jurisdiction (including the Court’s territorial jurisdiction).
Consequently, the plaintiff’s claim under s 18(7) of the HRA fails at the threshold.
Does s 18(7) create a freestanding right to compensation?
The plaintiff contended that s 18(7) creates a freestanding right to compensation. The defendants argued that s 18(7) does not create such a right but operates to protect the common law cause of action for damages for false imprisonment.
In Morro v Australian Capital Territory [2009] ACTSC 118; 4 ACTLR 78 (Morro), Gray J expressed the view that s 18(7) does confer a substantive statutory right to compensation: at [42].
In Strano v Australian Capital Territory [2016] ACTSC 4; 11 ACTLR 134, Penfold J criticised the reasoning of Gray J in Morro, characterised his Honour’s conclusion about s 18(7) as obiter dictum, and concluded (obiter dictum) that s 18(7) of the HRA did not create a statutory cause of action separate from the tort of false imprisonment.
In Monaghan, Mossop AsJ considered whether s 18(7) created a freestanding remedy but did not express a concluded view: at [235]–[257].
However, in Lewis, Refshauge J concluded that s 18(7) did not create an independent right to compensation: see [474] and [531].
In Eastman, Elkaim J did not need to decide the point: see [158].
As I have decided that the plaintiff’s arrest and detention were not unlawful, it is unnecessary to decide whether s 18(7) of the HRA creates a freestanding right to compensation.
However, I note what may be a misconception about the relative breadths of s 18 of the HRA and the tort of false imprisonment.
A misconception in the plaintiff’s approach?
The plaintiff’s submissions assumed that the range of detentions proscribed by s 18(1) and/or (2) of the HRA is wider than the range of imprisonments covered by tort of false imprisonment; that common law false imprisonment is more or less a subset of deprivation of the human right to liberty of person. For the reasons explained in Jalloh, that assumption is questionable.
In Jalloh, the House of Lords considered whether a curfew imposed under the Immigration Act 1971 (UK) amounted to imprisonment at common law and/or a deprivation of liberty under art 5 of the European Convention on Human Rights (ECHR). The structure of art 5 is that it declares a right to liberty and security of person; it then provides that no one shall be deprived of their liberty except as specified and in accordance with a procedure prescribed by law; and, lastly, it sets out the specified exceptions, each of which is a type of “lawful arrest”, “lawful detention”, or response to a “lawful order” (including detention following the refusal of bail on stated bases). If the provisions of art 5 are contravened, the victim has “an enforceable right to compensation”.
In Jalloh, the House of Lords had little difficulty in finding that the immigration curfew amounted to imprisonment at common law. However, it emphasised that the concepts of imprisonment for the purpose of the tort of false imprisonment and deprivation of liberty were not aligned. Common law imprisonment could occupy a very short period of time, and may not amount to a deprivation of liberty; the art 5 concept was a much more nuanced concept that involved a consideration of many factors, including the type, duration and effects of the conduct in question and which distinguished between deprivation and restriction of physical liberty: at [29]–[33]. While there could be an imprisonment at common law without a deprivation of liberty under art 5, it was open to doubt that the converse applied: at [34]. On the other hand, the deprivations of liberty permitted by art 5 did not extend to all lawful justifications applying to common law imprisonment: at [31].
The terms of art 5 differ significantly from those of s 18 of the HRA, but the broad concept of a human right to liberty and security of person is central to both. However, while art 5 prohibits “deprivation of liberty” as the natural consequence of declaring a “right to liberty”, in the HRA those concepts are not as neatly juxtaposed, and s 18(7) sits almost as an outlier, referring to a different concept—“unlawful detention”—which does not feature in art 5. Rather, the s 18(7) reference to “unlawful detention” harks back to art 9 of the ICCPR, as does the problematic s 18(1) reference to “arbitrary” detention.
The ramifications of the Jalloh decision concerning art 5 of the ECHR for interpretation of s 18 of the HRA are not clear, were not argued, and need not be decided in this case.
False imprisonment
Alternatively, the plaintiff claimed damages for false imprisonment.
In a claim for damages for false imprisonment, the defendant bears the onus of establishing that the plaintiff’s detention was lawful: Myer Stores Ltd v Soo [1991] 2 VR 597 at 599, citing Carnegie v State of Victoria (Unreported, Supreme Court of Victoria, Full Court, 14 September 1989). In this case, there was no issue that the defendants had imprisoned the plaintiff. Consequently, on the claim for false imprisonment the issue was whether the defendants had established lawful justification for the imprisonment.
Disregarding the issue of onus, in relation to the claim under the HRA and the claim for false imprisonment, the fundamental issue (or “threshold question”) was whether the plaintiff’s detention was “unlawful” (within the meaning of s 18) or lawfully justified (for the purposes of the tort of false imprisonment).
For the reasons that the plaintiff’s detention was not unlawful within the meaning of s 18 of the HRA, it was lawfully justified for the purposes of the tort of false imprisonment.
The claim for false imprisonment fails.
Observations about compensation and damages
It is not necessary to decide compensation or damages. However, I note the following matters.
Doubtless, several factors other than imprisonment influenced the plaintiff’s poor psychological health during the time that he was imprisoned and thereafter. The plaintiff readily acknowledged that he was ashamed of his conduct towards X and that he had found it difficult to forgive himself for his conduct. He conceded that a significant contributor to his sense of shame and loss was the fact that he had committed a violent assault on X. He said that, having lost his job and family life, he felt that he had failed as a father and as a man.
Because the NSW District Court backdated the plaintiff’s NSW sentences by 43 days, the plaintiff was imprisoned for the same period that he would have been imprisoned had the charges been laid in NSW from the outset.
The situation is analogous to that in Lumba v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245 (Lumba). In Lumba, the appellants were foreign national prisoners who had been detained by the Home Secretary pending deportation. The Home Secretary did so pursuant to an unpublished policy that was found to have been unlawful. Consequently, the complainants’ detention had been unlawful. However, a majority held that, as it was inevitable that the appellants would have been detained even if the proper policy had been applied to them, they should receive only nominal damages (see Lord Dyson JSC’s judgment at [95]).
The backdating of the NSW sentence does not necessarily mean that, had either claim succeeded, the plaintiff would have received only nominal damages. In claims for false imprisonment, and appropriate award of damages is strongly influenced but not dictated by the period of a detention. The plaintiff’s detention in the ACT was sudden and unexpected, and it spanned the Christmas/summer period, whereas his incarceration in NSW followed a plea of guilty and would have been expected.
Orders
There must be a verdict for the defendants.
If the defendants seek costs, within 14 days they are to email short submissions in support of the claim (not exceeding three pages) to my associate and the plaintiff.
Within seven days thereafter, the plaintiff is to email any short submissions (not exceeding three pages) to my associate and the defendants.
If written submissions are received, costs will be determined on the basis of the submissions.
If submissions are not received within the above timeframes, each party is to pay its own costs.
| I certify that the preceding one hundred and twenty-nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice Murrell. Associate: Date: |
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