Deng v Australian Capital Territory - [2024] ACTCA 10

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
Texts…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2024] ACTCA 10
Decision Date: 15 March 2024

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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