Deng v Australian Capital Territory

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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
Crimes Act 1900 (ACT), s 116(3)
Family Violence Act 2016 (ACT), ss 25, 30, 42, 43, 44, 82, 83, 88, 112
Human Rights Act 2004 (ACT), ss 18, 40(2)(b), 40C(2)(b), Pt 5A
Industrial Schools Act 1866 (NSW), s 7
Magistrates Court Act 1930 (ACT), ss 17A, 19, 25, 26, 70, 74

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))
Brown v Australian Capital Territory [2020] ACTSC 70
Deng v Australian Capital Territory (No 2) [2021] ACTSC 135
Fok Lai Ying v Governor-in-Council [1997] 3 LRC 101
In re Pettet (1890) 11 LR (NSW) 242
In re William Gray (1876) 2 VLR (L) 241
Manga v Attorney-General [2000] 2 NZLR 65
Minister for Immigration and Multicultural and Indigenous Affairs v Al Masri [2003] FCAFC 70; 126 FCR 54
Monaghan v Australian Capital Territory (No 2) [2016] ACTSC 352; 315 FLR 305
Neilsen v Attorney-General [2001] 3 NZLR 433
Thompson v Minogue [2021] VSCA 358; 67 VR 301
Thompson v The Queen (1989) 169 CLR 1
Victoria Police Toll Enforcement v Taha [2013] VSCA 37; 49 VR 1

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Details
Case
[2024] ACTCA 10
Decision Date

CaseChat Overview and Summary

The appeal in *Deng v Australian Capital Territory* concerned the jurisdiction of the Magistrates Court to order the remand of the appellant, who had been arrested for allegedly breaching a Special Interim Family Violence Order. The appeal was heard by the Supreme Court of the Australian Capital Territory, constituted by McCallum CJ, Mossop and McWilliam JJ.

The primary legal issues before the Court were whether the Magistrates Court had jurisdiction to hear proceedings alleging a breach of the Special Interim Family Violence Order, and whether that jurisdiction was dependent on the order being in force at the time of the alleged offence. Additionally, the Court considered whether a remand order made by the Magistrates Court was arbitrary, given the appellant's arrest for breach of the order.

The Court reasoned that the Magistrates Court possessed jurisdiction to hear and determine allegations of breach of a Special Interim Family Violence Order, irrespective of whether the order itself remained in force at the precise moment of the alleged breach. The Court clarified that the Family Violence Act 2016 (ACT) provided the statutory framework for the termination of such orders, and that the conditions within the order, such as continuing "until all related charges are finalised," did not operate to terminate the order itself prematurely. Furthermore, the Court found that the remand order was not arbitrary, as it was based on available statutory power, the appellant was represented, and reasons for the refusal of bail were provided.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondents’ costs of the appeal, with liberty granted to either party to apply for a different costs order within 14 days.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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