Deng v Australian Capital Territory
[2024] ACTCA 10
•15 March 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Deng v Australian Capital Territory |
Citation: | [2024] ACTCA 10 |
Hearing Date: | 6 November 2023 |
Decision Date: | 15 March 2024 |
Before: | McCallum CJ, Mossop and McWilliam JJ |
Decision: | 1. The appeal is dismissed. 2. The appellant is to pay the respondents’ costs of the appeal. 3. Liberty is granted to either party to file an application seeking a different costs order within 14 days. |
Catchwords: | APPEAL – MAGISTRATES – Jurisdiction and procedure generally – appeal against finding that Magistrates Court had jurisdiction to order remand of appellant – appellant arrested for breach of Special Interim Family Violence Order – jurisdiction of Magistrates Court to hear proceedings alleging breach of Special Interim Family Violence Order – whether jurisdiction of Magistrates Court dependent upon Special Interim Family Violence Order being in force at the time of the alleged offence – court has jurisdiction to hear and determine allegation of breach of Special Interim Family Violence Order – appeal dismissed CRIMINAL LAW – PARTICULAR OFFENCES – Miscellaneous offences and matters – allegation of breach of s 43(2) of the Family Violence Act 2016 (ACT) arising from Special Interim Family Violence Order – conditions of Special Interim Family Violence Order expressed to continue only “until all related charges are finalised” – whether the order itself or only the specified conditions of the order ended when “all related charges” were finalised – Special Interim Family Violence Order only ended by operation of s 30 of the Family Violence Act 2016 (ACT) HUMAN RIGHTS – APPEAL – Appeal against finding that remand order was not arbitrary – remand order based upon available statutory power, defendant represented and reasons for refusal of bail given – remand order not capricious or unreasoned – appeal dismissed |
Legislation Cited: | Bail Act 1992 (ACT), s 22 |
Cases Cited: | Barrio v Spain (Human Rights Committee, Views: Communication No 3102/2018, 136th sess, UN Doc CCPR/C/136/D/3102/2018 (7 March 2023)) |
Texts Cited: | International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 28 January 1993) |
Parties: | Atem Deng ( Appellant) The Australian Capital Territory (First Respondent) The Magistrates Court of the Australian Capital Territory (Second Respondent) Her Honour Special Magistrate Margaret Hunter (Third Respondent) His Honour Magistrate Glenn Theakston (Fourth Respondent) |
Representation: | Counsel A Butler KC with P Tierney ( Appellant) A Hochroth with B Hord ( Respondents) |
| Solicitors Ken Cush & Associates ( Appellant) ACT Government Solicitor ( Respondents) | |
File Number: | ACTCA 61 of 2022 |
Decision Under Appeal: | Court/Tribunal: Supreme Court of the ACT Before: Loukas-Karlsson J Date of Decision: 28 September 2022 Case Title: Deng v Australian Capital Territory (No 3) Citation: [2022] ACTSC 262 |
THE COURT:
Introduction
1․The appellant spent 58 days in custody on remand as a result of orders made by the Magistrates Court. The charge against him which led to his being held on remand was for a breach of a family violence order. It was ultimately dismissed. He sued the Australian Capital Territory Magistrates Court and the magistrates who made the remand orders, relying on a variety of causes of action. His proceedings in the Supreme Court were dismissed: Deng v Australian Capital Territory (No 3) [2022] ACTSC 262 (Deng). He has appealed to the Court of Appeal asserting that the Magistrates Court lacked jurisdiction to make the remand orders or, alternatively, that his imprisonment was “arbitrary” for the purposes of s 18(1) of the Human Rights Act 2004 (ACT) (HR Act). Neither of those propositions is established and therefore the appeal must be dismissed.
Grounds of Appeal
2․The grounds of appeal that were maintained at the hearing of the appeal are as follows:
(1)The Primary Judge erred in finding that the Magistrates Court of the Australian Capital Territory (the Magistrates Court) had jurisdiction to enable it to remand the appellant in custody.
Particulars
a.The Special Interim Family Violence Order (SIFVO) with respect to the Appellant made on 30 April 2019 ceased to exist on 30 August 2019 (the Finalisation) when all related charges were finalised.
…
f.The Primary Judge erred in finding that the remand order made in respect of the Appellant (“the remand order”) was not arbitrary.
g.The Primary Judge erred in conflating the separate questions of:
1. The arbitrariness of the remand order; and
2. The jurisdiction of the Magistrates Court; and
h.The Primary Judge erred in failing to consider the effect of s. 40C(2)(b) of the Human Rights Act to the Appellant’s claim.
3․Counsel for the appellant asked that particulars f, g and h be treated as if they were discrete grounds of appeal. We will treat them as if they were grounds 2, 3 and 4.
4․A Notice of Contention was filed. Having regard to the conclusions reached in relation to the Notice of Appeal, it is not necessary to describe its terms or deal with its substance.
Factual background
5․The relevant facts were uncontroversial. They require a basic understanding that the legislation dealing with family violence orders, the Family Violence Act 2016 (ACT) (FV Act), makes provision for interim orders to apply before a final hearing has taken place.
6․On 30 April 2019, the appellant appeared in the Magistrates Court on a charge of destroying or damaging property contrary to s 116(3) of the Crimes Act 1900 (ACT). On that date, a Special Interim Family Violence Order (SIFVO) under the FV Act was made: Deng at [2]. It was a “court-initiated interim order” under s 112 of the FV Act.
7․An SIFVO addresses a situation in which a respondent to an application for a family violence order is also facing a related criminal charge. Special provisions apply in relation to the duration of such orders and when the underlying application for a family violence order must be finally determined.
8․At the heart of the difficulties which ultimately arose is the fact that the magistrate who made the order on 30 April 2019 (the first magistrate) included in the terms of the SIFVO a statement which had the effect that the prohibitions in the order continued only “until all related charges are finalised” rather than allowing the order to operate until it ended under s 30 of the FV Act.
9․On 30 August 2019, a second magistrate finalised the related charge by convicting the appellant and fining him $2000. This meant that for the purposes of the SIFVO “all related charges were finalised”: Deng at [3]. That had the effect of ending the restrictions imposed by the SIFVO, even though the hearing of the application for a final family violence order had not yet occurred.
10․On 22 October 2019, the appellant visited the house of his ex-partner. He was arrested by an officer of the Australian Federal Police (AFP) on suspicion of having contravened a family violence order.
11․On 23 October 2019, he was brought before the Magistrates Court and charged with contravening the SIFVO. He was represented by a duty lawyer. He made an application for bail. A copy of the Statement of Facts, the SIFVO and the appellant’s criminal history were provided to the court. A third magistrate refused him bail, giving oral reasons for that conclusion at the time. He was therefore remanded in custody.
12․On 12 November 2019, he appeared in court before a fourth magistrate. On that occasion he entered a plea of not guilty and was remanded in custody until 9 January 2020.
13․On 19 December 2019, following representations made by the appellant’s lawyer, the prosecution offered no evidence and the charge of contravening a family violence order was dismissed by the first magistrate. The appellant was then released from custody. He had spent a total of 58 days in custody.
14․The reason that the prosecution offered no evidence, and the charge was dismissed was because, as a result of the wording of the family violence order, there was, in fact, no prohibition upon his being at his former partner’s house on 22 October 2019, as the only “related charge” had been finalised before that date, on 30 August 2019.
Proceedings below
15․The appellant sued the Australian Capital Territory and the Magistrates Court of the Australian Capital Territory, as well as the third and fourth magistrates who dealt with the proceedings. The claims against the third and fourth magistrates were stayed in 2021: Deng v Australian Capital Territory (No 2) [2021] ACTSC 135.
16․The causes of action agitated before the primary judge were:
(a)a claim for a declaration that the orders remanding the appellant in custody made on 23 October 2019 and 12 November 2019 were made without or in excess of jurisdiction or, alternatively, an order setting aside the remand orders;
(b)damages from the Magistrates Court or, alternatively, the third and fourth magistrates, pursuant to s 17A of the Magistrates Court Act 1930 (ACT) (MC Act);
(c)compensation from the Australian Capital Territory, pursuant to s 18(7) of the HR Act;
(d)damages from the Australian Capital Territory for false imprisonment; and
(e)damages from the Australian Capital Territory for negligence.
17․In summary, the primary judge found:
(a)the orders were made within the jurisdiction of the Magistrates Court: Deng [157];
(b)the detention was not “arbitrary” for the purposes of the HR Act: Deng at [178]‑[179];
(c)s 17A of the MC Act did not give rise to a cause of action: Deng at [214]; and
(d)the respondents did not owe the appellant a duty of care (Deng at [284]), but even if there was such a duty of care it was not breached: Deng at [307].
18․In case her Honour was wrong in arriving at these conclusions and damages were payable, she also made a contingent assessment of damages: Deng at [414].
Ground 1 – Was there jurisdictional error because the SIFVO ceased to exist?
19․This ground relates to what occurred on 23 October 2019, when the appellant was remanded in custody. The question was whether the third magistrate had jurisdiction to remand the appellant. The jurisdictional arguments were based in part on the interpretation of s 43 of the FV Act.
20․As at 2019, s 43 provided:
43Offence—contravention of family violence order
(1)This section applies to a person against whom a family violence order is made if the person—
(a)was present when the family violence order was made; or
(b)has been personally served in accordance with this Act with a copy of the family violence order.
(2)The person commits an offence if the person engages in conduct that contravenes the family violence order (including a condition of the order).
Maximum penalty: 500 penalty units, imprisonment for 5 years or both.
NoteIn deciding the sentence to be imposed on a person under this section, the Magistrates Court must consider the matters under the Crimes (Sentencing) Act 2005, s 33 (Sentencing—relevant considerations).
(3)This section applies to conduct engaged in within the ACT as well as outside.
Appellant’s submissions
21․The appellant contended that the primary judge made a number of errors in the manner in which she addressed the issue of jurisdiction in two paragraphs of her judgment. Those paragraphs were as follows:
146.Therefore, it is not correct to state that the function of determining guilt in respect of the breach charge could not have been undertaken by the Second Defendant. Had the charge not been withdrawn, the Magistrates Court would have had jurisdiction to hear and determine the charge. The Plaintiff would have been acquitted at hearing having identified that the prohibitions in the SIFVO applied only until the related criminal charge was finalised, and that this had occurred by the time of the alleged offence. That is that a necessary element of the offence could not be established.
…
194.In conclusion, I underline that the fact that one of the elements of the offence that the Plaintiff was charged with is not made out, does not deprive the Court of jurisdiction to decide the charge itself but of the authority to convict and punish.
22․In written submissions on appeal, the appellant advanced four propositions.
23․The first proposition was that there was a jurisdictional error on the part of the Magistrates Court in not establishing whether there was an operative family violence order in place prior to determining how the matter would be dealt with (and whether bail would be granted).
24․The appellant submitted:
(a)The language, structure, and purpose of s 43 of the FV Act showed that “it was a pre-requisite to the exercise of jurisdiction in the appellant’s case that the Magistrates Court first establish the existence of an operative family violence order”.
(b)The text of the section provides that the section applies where a family violence order “is made” as distinct from where a family violence order “was made”. The present tense was significant. It required the court, prior to commencing a hearing of a charge for an offence against s 43(2), to check the court record to confirm that an operative order existed.
(c)In terms of statutory context, part of the preamble to the FV Act stated that the justice system should respect and protect “all human rights” and emphasised that includes the human rights of respondents to family violence order applications.
(d)In terms of intended purpose, having regard to the types of family violence orders, their different duration and conditions in relation to termination, it is “unsurprising” that the Legislative Assembly would construct an offence provision which contained a jurisdictional prerequisite of the existence of an operative family violence order. Interpreting the legislation so as to require the Magistrates Court to confirm an operative family violence order was in place imposed a minimal burden, as it was the court that had made the order and was an expert “in this potentially complicated field”.
25․The submissions also pointed to the fact that allegations of breach of such orders may have been made in urgent circumstances and the AFP may have been confused as to whether or not an order was actually in place. The submissions referenced the opening passage in the reasons of the primary judge, which referred to there having been “a failure of the system”.
26․The appellant’s second proposition was that the fact that, on day 58, the Magistrates Court had undone the consequences of any jurisdictional error said to have been committed on day 1 did not undo that earlier jurisdictional error.
27․The appellant’s third proposition was that it was a necessary attribute of the exercise of judicial power that there be a matter which is capable of adjudication and, therefore, the want of evidence on a critical element of a charge deprived the court of jurisdiction. That was said to be because judicial power can only be exercised “where there is some evidence that supports the undertaking of an adjudication”.
28․In that regard, the appellant submitted that:
(a)The adjudicative function of the Magistrates Court was to determine whether or not s 43 applied and then whether there was a contravention.
(b)“In order to found that jurisdiction the Special Interim Order needed to exist in a form which could be breached.”
(c)As no such order was in existence, the adjudicative function of the Magistrates Court “could never be engaged” because an essential precondition to the adjudicative function did not exist.
29․The appellant contended that “a useful cross-check” of this aspect of the argument was provided by two cases in which a writ of habeas corpus was issued where there was a total absence of evidence in support of the charge said to justify imprisonment. Those two cases were:
(a)In re Pettet (1890) 11 LR (NSW) 242 (Pettet); and
(b)In re William Gray (1876) 2 VLR (L) 241 (Gray)
30․The appellant’s fourth proposition was that it is the first duty of a court to determine whether the court has jurisdiction in a matter, yet this was not done because the magistrates did not examine the terms of the court’s file in order to determine whether or not the court could exercise jurisdiction to hear and determine the breach charge.
Consideration and decision
The SIFVO remained in force
31․It is necessary to first address the proposition in particular (a) of ground 1 in the Notice of Appeal that, by reason of its terms, the SIFVO “ceased to exist” on 30 August 2019. That was said to be because the prohibitions imposed by the SIFVO were expressed to apply only “until all related charges are finalised”, and those related charges were in fact finalised on 30 August 2019. The primary judge found that, whilst the prohibitions in the SIFVO ceased to have effect on that date, the order itself was not revoked on 30 August 2019: Deng at [70]-[90]. For the reasons that follow, the conclusion reached by the primary judge was correct.
32․The SIFVO provided:
Pursuant to section 112 of the Family Violence Act 2016, regarding the behaviour of Atem Deng (‘the respondent’) in relation to [name] (‘the protected person(s)’) the Court orders that until all related charges are finalised:
1.The respondent is prohibited from:
[prohibitions set out in (a)-(g)]
33․The inclusion of a statement as to the circumstances in which the prohibitions would cease (“until all related charges are finalised”) was unnecessary because s 30 of the FV Act itself determined when the order ended. Section 30 describes four specific circumstances in which an SIFVO comes to an end. That these describe the only circumstances in which the order may be ended is made clear by the language of the section: “A special interim order ends only when the first of the following happens …”. In contrast to general interim orders (as to which see s 25), the statute did not allow for the court itself to include within the order a statement as to when it would end. Rather, the four circumstances provided in s 30 ensure that the SIFVO only ends if the court has reviewed it under s 88 and decided it should end, or the application for a final order is abandoned or dismissed, or where a final order is made. The general position is that an interim order will continue up until the determination, one way or another, of the application for a final order. It thereby endeavours to ensure protection of the protected person/s up to that time. In contrast, the protections under the order made by the magistrate ended after the related charges were finalised, leaving a gap in protection between that time and when the application for the final order was dealt with. There was, however, a specific power to include in an SIFVO conditions that operate for a shorter period than the order: s 42.
34․Whilst the appellant submitted that the whole order came to an end by reason of the language contained within the order itself, the respondent contended that the language contained in the order meant that whilst the prohibitions ceased to apply once the related charges were finalised, the order itself did not cease effect altogether.
35․The respondent’s construction of the order should be accepted. Giving full effect to the terms of the statute and the terms of the order meant that the prohibitions upon being at a particular address or within a specified distance of a particular person within the order came to an end when “all related charges [were] finalised”. But the order itself, without any operative prohibitions, would continue in effect until, by operation of s 30, it came to an end. The order would continue to have some effect, for example, for the purposes of the suspension of the appellant’s firearms licence: s 44, and the provisions allowing for it to be amended: ss 82-83.
36․This is what the primary judge found, and accordingly, her Honour was correct.
First proposition
37․The essential contention underlying the appellant’s submissions was that it is not enough for the Magistrates Court to have before it an information alleging a breach of s 43(2) of the FV Act in order to enliven its jurisdiction. Rather, it was necessary, in addition, for the court to establish that a family violence order “is” in force that might support that allegation. As will be apparent from what has been said earlier in these reasons, there was in fact an order in place even if the conditions in it had ceased to operate.
38․Central to the appellant’s argument was the proposition that the existence of an order that was in force at the time of the breach was a jurisdictional precondition to the adjudicative function rather than being a part of the adjudicative function. Even where it is accepted that a question of jurisdiction is a precondition to the adjudication of the question of guilt, that is a factual issue the court has jurisdiction to determine. Thus, in Thompson v The Queen (1989) 169 CLR 1, it was not suggested that the court had an anterior obligation to undertake its own inquiry into the jurisdictional fact before any other jurisdiction was enlivened. However, that appears to be the argument here. It is suggested that the power to grant or refuse bail, which, of its nature, is always exercised separately from and before any determination of guilt, was subject to a jurisdictional precondition into which the Magistrates Court was required to undertake some form of inquiry or investigation.
39․The essential contention advanced by the appellant that s 43 made the jurisdiction of the Magistrates Court contingent in some way on the existence or terms of the SIFVO cannot be accepted for a number of reasons.
40․Text of s 43: There is nothing in the text of s 43 which would support such an interpretation. The provision simply defines the circumstances in which an offence may be committed. It says nothing at all about the jurisdiction of the Magistrates Court to deal with that offence. Nothing about the application provision in s 43(1) provides any support for the proposition that the jurisdiction of a court, dealing with an allegation of a breach of s 43(2), is dependent upon the existence of the preconditions in s 43(1). As a matter of drafting technique, s 43(1) has been separated out so as to simplify the drafting of the offence provision in s 43(2). However, there is absolutely no indication in the text of the provision that would indicate that the conditions in s 43(1) become pre-requisites to the invocation or exercise of jurisdiction of the Magistrates Court to deal with an allegation of an offence under s 43(2).
41․Context of s 43: As summarised above, the submissions put on behalf of the appellant include contentions as to why it would be “unsurprising” that the Legislative Assembly might have imposed a jurisdictional prerequisite upon the Magistrates Court. These include that it is the Magistrates Court that would have imposed the order, that there are different types of orders which may lead to uncertainty as to whether or not an order was operative in particular circumstances, and that because of the urgency which often attends allegations of a breach of family violence orders, the AFP may be confused as to the existence of an order. These submissions are entirely unpersuasive. They provide no basis upon which the clear text of the provision could be interpreted as imposing the jurisdictional preconditions contended for.
42․Text of Magistrates Court Act: Moreover, it is the MC Act which provides the court’s jurisdiction to hear and determine criminal charges. The jurisdiction of the court is determined by what is alleged, not what the facts are. The starting point must be the terms of the MC Act which gives the court jurisdiction. Sections 19, 25 and 26 of the MC Act are as follows:
19Jurisdiction of court
If, by any law in force in the ACT, any offence is punishable on summary conviction … and no other provision is made for the trial of the person committing the offence, the matter may be heard and decided by the court in a summary way under the provisions of this Act.
…
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.
43․In the present case the information properly alleged contravention of s 43. It provided:
THAT HE, IN THE AUSTRALIAN CAPITAL TERRITORY, ON 22 OCTOBER, 2019, BEING A PERSON AGAINST WHOM A FAMILY VIOLENCE ORDER WAS MADE AND WHO HAD BEEN PERSONALLY SERVED WITH A COPY OF THE FAMILY VIOLENCE ORDER ENGAGED IN CONDUCT THAT CONTRAVENED THAT FAMILY VIOLENCE ORDER.
44․That formulation of the charge incorporated the requirements of s 43(1), namely, that a family violence order was made and that it had been personally served upon the appellant. At the times when the Magistrates Court made orders remanding the appellant in custody, that allegation had not been adjudicated upon. It would need to be adjudicated upon prior to the imposition of any conviction or sentence. If the elements of an offence under s 43(2) were not established in the Magistrates Court beyond reasonable doubt, then there would be no jurisdiction to convict the appellant or impose a penalty. However, that there may not ultimately be jurisdiction to convict the appellant or impose a penalty does not deny the Magistrates Court jurisdiction to commence to hear the proceedings, including making any decisions about bail in the meantime, and determine whether or not the appellant is guilty or not guilty.
45․That is established by a number of authorities which were referred to by the primary judge, most clearly Thompson at 21-22, 33-34 and Brown v Australian Capital Territory [2020] ACTSC 70 at [75]. Thompson involved a question as to whether or not a murder took place in the Australian Capital Territory or in New South Wales. In the course of their separate reasons, Brennan J and Deane J made it clear that the jurisdiction of the court to hear the case was not dependent upon the fact, as distinct from the allegation, that the crime occurred within the jurisdiction.
46․The reasons given in Thompson were picked up in Brown, a case similar to the present in that it involved an allegation of false imprisonment arising as a result of an alleged jurisdictional error on the part of the Magistrates Court. It involved a charge which alleged an assault on the defendant’s partner within the Jervis Bay Territory (JBT), in relation to which the Magistrates Court had jurisdiction. The defendant was remanded in custody. Eventually it was ascertained that the incident had actually occurred in New South Wales and the defendant was released from custody. He was subsequently charged and sentenced in New South Wales. The claim was that the Magistrates Court had lacked jurisdiction because the offences had been committed in New South Wales. This proposition was correctly rejected by Murrell CJ. Her Honour referred to the judgments of Brennan and Deane JJ in Thompson and continued:
75.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.
76.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.
47․Just as in Brown, in the present case the mere fact that the prosecution may not have been able to establish one of the elements of the offence as required by s 43(1), namely, engaging in conduct in contravention of a family violence order, did not have the effect of denying the court jurisdiction to determine that issue. Once it had jurisdiction to determine that issue, it was entitled to exercise the powers in ss 70 and 74 of the MC Act to remand the appellant in custody.
48․None of the contentions put forward by the appellant as to the utility or desirability of having the court, as a preliminary to the exercise of jurisdiction, undertake a check as to the existence or terms of the relevant family violence order are sufficient to warrant an interpretation that would render the matters in s 43(1) preconditions to the exercise of jurisdiction to hear and determine the charge before the court.
Second proposition
49․Had the first proposition been established, then the second proposition contended for by the appellant may have been of significance. That is because the second proposition correctly identifies that if the Magistrates Court had acted without jurisdiction, then the order that it made after the appellant had been in custody for 58 days would not have undone that earlier jurisdictional error. However, as no jurisdictional error is established, the correctness of the second proposition is of no consequence.
Third proposition
50․The appellant’s third proposition, that a want of evidence on a critical element of the charge denies the court jurisdiction, cannot be accepted. It fails to recognise the distinction between the jurisdiction to conduct a hearing and the jurisdiction to make a final order. Whilst it may be correct that the absence of evidence on a critical element of a charge means that a court has no jurisdiction to make orders based upon finding the charge proved, the court will still have jurisdiction to embark upon a hearing to determine whether or not that is the case and to make ancillary orders for the purposes of such a hearing.
51․Neither of the decisions in Pettet and Gray support the appellant’s contentions. The cases simply demonstrate that an absence of evidence of an essential fact may be fatal to the jurisdiction to make a final order. They say nothing about whether the court has jurisdiction to embark upon proceedings to determine whether or not those essential facts existed. They are entirely consistent with the remarks of Brennan J and Deane J in Thompson and with the decision of Murrell CJ in Brown.
52․The facts of Pettet are worth setting out only for the educative purpose of demonstrating the fundamental significance of the writ of habeas corpus when it is directed to unresponsive government actors. In Pettet, a child under the age of 11 years was sent on an errand by his mother. He was arrested by a police officer and taken before a stipendiary magistrate. The magistrate made an order, purportedly pursuant to the Industrial Schools Act 1866 (NSW), which empowered the detention of children under the age of 16 “who shall be found habitually wandering or loitering about the streets … in no ostensible lawful occupation”. No evidence was taken before the magistrate. There was nothing to prove that the child was “habitually” wandering about the streets. Notwithstanding that, the magistrate issued a warrant permitting him to be taken aboard the Vernon, a ship under the control of the Minister of Education. The warrant issued by the magistrate simply recited that the boy had been “found wandering about the streets, in no ostensible lawful occupation” and made no reference to “habitually”. The father of poor master Pettet got his solicitor to write to the Minister for Education. The Secretary to the Minister replied saying that the Minister had considered reports in the matter and had come to a conclusion that “the boy’s interests would be best served by his detention in the institution” and therefore he would not be released. The Minister was asked for the reports that he relied upon, but he declined to furnish them. An application was made to the superintendent of the Vernon, but the superintendent replied that communications should be made to the Minister. No information was given to the parents of the child as to why the child had been detained.
53․Counsel for the Minister admitted that there was a technical error in the warrant and that the rule nisi for a writ of habeas corpus should be made absolute. However, he contended that costs should not be awarded against the respondents. It was in those circumstances that Chief Justice Darley, demonstrating a significant degree of restraint, said:
If we were to hold that the mere ipse dixit of the Minister be sufficient to bring this child within the provisions of s. 4 of the Industrial Schools Act of 1866, then any child may be arrested, brought before a Magistrate, and placed on board the Vernon, and when an application is made for his release the under-secretary for the Department may point out that the Minister thinks the child’s interests may be best served by keeping him where he is. The applicant must succeed, and the rule must be made absolute, with costs.
54․Justices Innes and Stephen wrote concurring judgments, each also demonstrating, to the careful reader, a barely restrained indignation at what had occurred.
55․Nothing in Pettet supports the contentions of the appellant. There was no challenge to the jurisdiction of the magistrate to conduct a hearing for the purposes of deciding whether to issue a warrant under s 7 sending the child to a “Public Industrial School”. Rather, the challenge was to the capacity of the Minister to rely upon a warrant which did not, on its face, establish the essential requirements for its validity and which was issued in circumstances where there was no evidence of an essential precondition to the making of the order.
56․Gray is to similar effect. In that case, a judge of the Court of Insolvency in Victoria had jailed an insolvent for contempt. The contempt was said to be a failure to repay £190 belonging to the insolvent’s estate. The books that the insolvent had provided to the court showed an entry for the receipt of that money by the insolvent but also included a further entry showing that it had been spent prior to any order requiring it to be paid over. The judge treated the entry showing receipt as an admission but he ignored the entry showing the disbursement. He ordered that the £190 should be paid but the insolvent could not, as he had already spent it. The judge jailed him for contempt.
57․The warrant recited that he had failed to pay the sum that belonged to his estate and was “in his custody or under his control”. A full court of the Supreme Court of Victoria discharged the insolvent from custody, holding that it was competent on the application for the insolvent to show by evidence that the essential ingredient of possession of the property at the time of the order was missing.
58․Once again, the case relates to the jurisdiction to make a final order, it does not relate to the jurisdiction to conduct a hearing in order to determine whether or not that final order should be made. It is therefore of no assistance to the appellant in this case.
Fourth proposition
59․The proposition that it is the first duty of a court to determine whether it has jurisdiction in a matter is undoubtedly correct. It may have been relevant had the appellant’s first proposition been correct. As the first proposition was incorrect, the fourth proposition is irrelevant.
Conclusion
60․Ground 1 in the Notice of Appeal is not established.
Grounds 2 and 3 – Was the remand order arbitrary?
61․These grounds may be conveniently addressed together as they relate to whether the remand order was arbitrary, and the primary judge’s reasoning process in deciding it was not. The grounds concern ss 18(1) and (2) of the HR Act, which are in the following terms:
(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.
62․The appellant argued that even if the Magistrates Court had technically acted within jurisdiction in entertaining the proceeding, the detention of the appellant was unlawful because it was “arbitrary” within the meaning of s 18 of the HR Act.
Findings and reasons of the primary judge
63․The primary judge dealt with the question of arbitrariness under the heading “Were the Remand Orders made without jurisdiction in light of the Human Rights Act?”. The parts of the primary judge’s reasoning giving rise to the complaint are as follows:
158.The Plaintiff places reliance on the Human Rights Act in submitting that the Magistrates Court lacked jurisdiction to make the Remand Orders. The argument appears to be that if the Plaintiff’s remand could be characterised as “arbitrary” or as having been done “not on the grounds and in accordance with the procedures established by law” within the meaning of sections 18(1) and 18(2) of the Human Rights Act, then the Remand Orders must have been made without jurisdiction.
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162.No intention can be discerned from the provisions of the Human Rights Act that any breach of a human right will deprive the court of jurisdiction. Indeed, the terms of the Act suggest otherwise. Section 40B provides that it is unlawful for a public authority (including a court acting in an administrative capacity: s 40(2)(b)), to act in a way that is incompatible with a human right. Section 40C permits proceedings to be taken in respect of a contravention of s 40C and provides that any relief except damages may be granted in such proceedings.
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165.Section 74 of the Magistrates Court Act provides, that the court may, at any time before it gives its decision in a case, order that the defendant be remanded in custody. These words confer a broad power to remand.
166.A remand order that contravenes ss 18(1) or (2) of the Human Rights Act may involve a breach of s 40B and give rise to a claim for relief under s 40C. It is not, by reason of such contravention alone, made without jurisdiction.
167.Further, the Remand Orders in the present case were not made, either arbitrarily, or not on the grounds and in accordance with procedures established by law.
168.As to arbitrariness, detention will be arbitrary if it is capricious, unreasoned, without reasonable cause, made without reference to an adequate determining principle, or without following proper procedures established: Neilsen v Attorney-General [2001] 3 NZLR 433 (Neilson) at 434.
169.The detention in the present case, pursuant to the Remand Orders, was not capricious or unreasoned. The Plaintiff was brought before the Court on 23 October 2019, following his arrest, and a duty lawyer represented him. The duty lawyer sought and obtained an opportunity to confer with the Plaintiff. The duty lawyer applied for bail on behalf of the Plaintiff, and this was opposed by the prosecutor. The Plaintiff was formally charged with the offence for which he was brought before the Court. Special Magistrate Hunter refused bail, giving ex tempore reasons for her decision.
64․The reasons of the primary judge involved accepting that the concept of arbitrariness extended beyond that which was unlawful. In other words, it was possible to have a lawful detention which was nevertheless arbitrary. Her Honour accepted the formulations used to describe the concept of arbitrariness in New Zealand authorities:
(a)Neilsen v Attorney-General [2001] 3 NZLR 433 at 434: “capricious, unreasoned, without reasonable cause … made without reference to an adequate determining principle, or without following proper procedures established”.
(b)Manga v Attorney-General [2000] 2 NZLR 65 at 71: “all unlawful detentions are arbitrary; and lawful detentions may also be arbitrary, if they exhibit elements of inappropriateness, injustice, or lack of predictability or proportionality”.
(c)Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101 at 112-113: “arbitrariness is not to be equated with ‘against the law’ but must be interpreted more broadly to include elements of inappropriateness, injustice, and lack of predictability”.
65․We interpolate that reliance upon those authorities was consistent with Australian authorities referred to in this court: Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54 at [143]-[146]; Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1 at [199]; Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305 at [228]-[231]; Thompson v Minogue [2021] VSCA 358; 67 VR 301 at [55].
66․The primary judge found (at [177]) that the notion of detention being “unjust” and therefore arbitrary was not at large. Rather it was closely linked to the other concepts seen as going to whether or not a lawful detention may nonetheless be arbitrary, those being whether it was imposed capriciously, without reasonable cause, or unreasonably.
67․The primary judge had earlier found (at [169]) that the detention of the appellant in the present case pursuant to the remand orders was not “capricious or unreasoned”. The primary judge pointed to the fact that it is not unknown in the law for a person to be remanded in custody to answer charges which are ultimately not established or for charges to be withdrawn prior to trial due to the discovery of fact or evidence previously unknown and which renders the continued prosecution unsustainable. This, her Honour concluded, “does not of itself render the remand arbitrary”: Deng at [178].
Appellant’s submissions
68․The appellant submitted that the detention was arbitrary for the purposes of s 18(1) of the HR Act. He essentially repeated contentions which had been considered and rejected by the primary judge. He pointed to the fact that the word “arbitrary” had been given an interpretation which extended beyond unlawfulness to include “unjust” acts. He pointed to a variety of formulations of what was, for the purposes of other human rights statutes, determined to be “arbitrary”. They included decisions which considered “elements of inappropriateness, injustice or lack of predictability”. The submissions pointed out that there is no mens rea or bad faith requirement in assessing arbitrariness.
69․The appellant relied upon the statement at the beginning of the primary judge’s reasons in which her Honour said “Mr Deng should not have spent 58 days in jail. That was a failure of the system.” He says that, embracing that finding, the court should find that the detention of the appellant was arbitrary, in breach of s 18(1) of the HR Act.
70․In oral submissions, the appellant placed particular reliance upon the decision of the United Nation’s Human Rights Committee in Barrio v Spain (Human Rights Committee, Views: Communication No 3102/2018, 136th sess, UN Doc CCPR/C/136/D/3102/2018 (7 March 2023)). This case was one which was decided after the decision in the present case and hence was not considered by the primary judge.
Consideration and decision
71․Ground 3 may be disposed of briefly. The primary judge did deal with arbitrariness as part of a consideration about jurisdiction as seen in the passage quoted above. However, it does not follow that her Honour wrongly conflated the two concepts. We accept that the approach taken in the reasons may have misstated the appellant’s argument (which was that even if there was jurisdiction, what occurred was unlawful by reference to s 18 of the HR Act). There are infelicities of language arising from addressing arbitrariness as part of the issue of jurisdiction. But there are two matters that demonstrate her Honour did understand the appellant’s point. The first is that the primary judge engaged with the question of whether a lawfully made order (that is, an order made within jurisdiction) could breach s 18 of the HR Act. The second is that discrete consideration was given to what was meant by arbitrary detention within the meaning of s 18 of the HR Act. Furthermore, the conclusion that the detention was not arbitrary was without error, for reasons that follow.
72․Turning to Ground 2, accepting the imprecision inherent in the concept of “arbitrariness” and the necessity to articulate its content by reference to other concepts, the features of this case are not such as to demonstrate that the approach taken by the primary judge was in error. They are as follows:
(a)The appellant was brought before the court on 23 October 2019 and a duty lawyer represented him.
(b)The duty lawyer sought and obtained an opportunity to confer with the appellant.
(c)The duty lawyer applied for bail on behalf of the appellant, but this was opposed.
(d)The appellant was formally charged with the offence.
(e)The magistrate refused bail and gave ex tempore reasons for that decision, and no complaint was made about any failure to consider any of the matters required to be considered under s 22 of the Bail Act 1992 (ACT).
73․The detention on 23 October 2019 took place after a fair hearing at which the appellant was represented and at which the magistrate took into account all relevant considerations insofar as they were known to her. The decision to refuse bail and remand the appellant in custody was based upon an available power and reasons which were given at the time in relation to which no complaint is made. The fact that a critical matter relevant to the ultimate prospects of the charge succeeding was not identified prior to the laying of the charge by the AFP or drawn to the attention of the magistrate by the informant, counsel for the prosecution or counsel for the appellant, is not, by itself, sufficient to render the detention “arbitrary”.
74․As the primary judge pointed out, it is not uncommon for persons who are detained as a result of an allegation of offending and a refusal of bail to be ultimately acquitted of the charge which they faced or for the prosecution to be terminated prior to trial as a result of the discovery of new information. This case fits well within that concept as there was no suggestion that at the time of the making of the remand orders any relevant person was aware of the fatal flaw in the informant’s allegations.
The consequences of Barrio for the present case
75․The additional argument relied upon in the Court of Appeal, which was not relied upon before the primary judge, was the decision in Barrio. The applicant in Barrio had sought aggregation of various sentences to which he was subject under Spanish law. This was initially denied and there was a complicated history of appeals and remittals over two years and nine months which ultimately led to a decision that his sentences could be aggregated. The end result of the aggregation process was that his sentence had expired seven months previously. As a result of the time taken by the judicial system to reach the conclusion on the issue of aggregation, he spent seven months more in prison than his aggregated sentence required. His claim was based upon Art 9 of the International Covenant on Civil and Political Rights (ICCPR) – the equivalent of s 18 of the HR Act. He relied upon Art 9(5) read in conjunction with Arts 9(1) and (4). Article 9(5) is the equivalent of s 18(7). Article 9(1) is the equivalent of ss 18(1)‑(2). Article 9(4) is the equivalent of s 18(6). His essential complaint was one of undue delay.
76․The Human Rights Committee considered that the State party had not demonstrated that the procedure for aggregation of sentences was completed within a reasonable time. It noted that the State party had not argued or demonstrated “that it ensured the observance of all procedural safeguards in order to prevent the delay in question and the seven-month period of detention”: at [9.10]. It continued:
It should be noted that, in every instance of detention, the burden of establishing the legal basis and the reasonableness, necessity and proportionality of the detention lies with the authorities responsible for the detention. The State party has not demonstrated that the manner in which it has acted in the present case has been effective in preventing or avoiding the delay in the sentence aggregation proceedings that gave rise to the author’s improper detention. By contrast, the author has been diligent in exhausting the available remedies to ensure that the length of his sentence was in compliance with domestic law.
(Footnotes omitted)
77․The Committee indicated that it considered that the seven-month period of detention was arbitrary within the meaning of Art 9(1) and that the State party had violated its obligation to protect the applicant’s right to liberty and security of person under Art 9 of the ICCPR.
78․So far as the reasoning discloses, it was the delay in resolving the issue of sentence aggregation which resulted in the detention being characterised as arbitrary. That occurred in a context where the State had not attempted to demonstrate that it had ensured the observance of all procedural safeguards in order to avoid that delay and the consequent additional period of detention.
79․Five points should be noted about the circumstances of Barrio.
80․First, the essential complaint was of a systemic delay which allowed the applicant to be detained for a longer period than his ultimate sentence required.
81․Second, the Committee appeared to recognise that it was open to the State party to have demonstrated that “it ensured the observance of all procedural safeguards in order to prevent the delay in question” in order to defeat the claim of arbitrariness, but it did not do so.
82․Third, it was a case in which there was, so far as the complainant to the Committee was concerned, a single polity responsible for the system of detention and hence no issue of divided responsibility, as exists in the present case, was raised or determined. In the present case, it was the informant, an officer of the AFP, who made the allegation of breach of the SIFVO which could not have been established. That officer was not a party to the proceedings and was an officer of the Commonwealth, not the Territory.
83․Fourth, it was a case in which the applicant was found to have been “diligent in exhausting the available remedies to ensure that the length of his sentence was in compliance with domestic law”. In the present case the appellant (through his legal representative) at no time when the proceedings were before the third and fourth magistrates raised the defect in the charge which ultimately led to his release and the dismissal of the charge.
84․Fifth, because there was an obligation on the State party to comply with the ICCPR, there was no carveout for the judicial system as exists under s 40(2)(b) of the HR Act. Section 40(2)(b) excludes from the definition of “public authority” a court, other than when it is acting in an administrative capacity. In the present case, the Magistrates Court, in exercising jurisdiction in relation to the charge, refusing the appellant bail and remanding him in custody, was undoubtedly acting in a judicial capacity and hence excluded from the operation of Pt 5A of the HR Act.
85․Understood by reference to these five points the case does not demonstrate any broad proposition that a failure of “the system” will lead to detention being characterised as arbitrary. Rather, it was based upon reasoning applicable in a much narrower range of circumstances. It is not correct, as counsel for the appellant sought to do, to characterise the case as one in which nobody was at fault. The specific complaint was made in Barrio that the State had not ensured that the issue of aggregation could be dealt with in a manner that prevented or avoided the delay that led to the seven extra months of detention.
86․As a consequence, although Barrio provides an example of a case in which the conduct of a State party has been found to involve arbitrary detention in circumstances where that detention was lawful under domestic law, it is of little assistance in determining the present case.
87․There is no error in the conclusion reached by the primary judge that the detention was not arbitrary for the purposes of s 18(1).
Ground 4: Was there a failure to consider the effect of s 40C(2)(b) of the Human Rights Act on the appellant’s claim?
88․Section 40C of the HR Act is in the following terms:
40CLegal 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.
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89․The appellant’s complaint was that the primary judge failed to consider the effect of a breach of s 18 of the HR Act on the false imprisonment claim, being ‘other legal proceedings’ under s 40C(2)(b) (or the negligence claim, which was not the subject of appeal).
90․As explained above, no breach of s 18 of the HR Act has been established, and the Magistrates Court is not a ‘public authority’ except when acting in an administrative capacity: HR Act, s 40. Here, the imposition of an order restraining a person’s liberty is unquestionably a judicial function. Those matters are fatal to the appellant’s case. There is no utility in analysing the primary judge’s treatment of the point at first instance.
91․It should be apparent from the reasons above that in our view, and contrary to views expressed by the primary judge, ‘the system’ did not fail. The legal process for the determination of a criminal charge builds in a period of time to properly bring a charge to trial, during which time a person may be remanded in custody. The entire premise of the system for granting and refusing bail is that people who are charged, but are innocent at law until proven guilty, may have their liberty curtailed pending trial. That is the system working, not failing. It is unfortunate that the first magistrate specified the duration of the SIFVO as she did. This was not required, and it caused confusion, as it was tied to the conclusion of other charges and not the family violence proceeding itself. It is also clear that the true position (that the appellant was not guilty of the offence charged) could have been ascertained earlier if the legal representatives appearing in the Magistrates Court were alive to that unusual feature of the order when the remand hearings took place. However, mistakes within a system do not necessarily mean that the system itself fails, even when the consequence is that a person’s liberty is affected.
Orders
92․In light of the rejection of the grounds of appeal that were pressed at the hearing, the appeal must be dismissed. It is unnecessary to deal with the respondents’ Notice of Contention. The orders of the Court are:
1.The appeal is dismissed.
2.The appellant is to pay the respondents’ costs of the appeal.
3.Liberty is granted to either party to file an application seeking a different costs order within 14 days.
| I certify that the preceding ninety-two [92] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 15 March 2024 |
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Amendments
22 March 2024 Replace “S Tierney” with “P Tierney” Page 2: “Representation: Counsel”.
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