Dunstan v The Queen

[2000] FCA 896

FEDERAL COURT OF AUSTRALIA

Dunstan v The Queen [2000] FCA 896

CRIMINAL LAW & PROCEDURE – application by appellant to remain at remand centre pending hearing of appeal – role of remand centre restricted to short term detention

Remand Centres Act 1976 (ACT) s15

Dunstan v The Queen [2000] FCA 686

COLIN GEORGE DUNSTAN v THE QUEEN

A 28 of 2000

HEEREY, MARSHALL AND WEINBERG JJ
CANBERRA (HEARD VIA VIDEO IN MELBOURNE)
22 JUNE 2000

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 28 of 2000

BETWEEN:	COLIN GEORGE DUNSTAN APPELLANT
AND:	THE QUEEN RESPONDENT
JUDGES:	HEEREY, MARSHALL AND WEINBERG JJ
DATE OF ORDER:	22 JUNE 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

The appellant’s motion of 19 June 2000 be dismissed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY

DISTRICT REGISTRY

A 28 of 2000

BETWEEN:	COLIN GEORGE DUNSTAN APPELLANT
AND:	THE QUEEN RESPONDENT

JUDGES:	HEEREY, MARSHALL AND WEINBERG JJ
DATE:	22 JUNE 2000
PLACE:	CANBERRA (HEARD VIA VIDEO IN MELBOURNE)

REASONS FOR JUDGMENT

THE COURT:

1. By Notice of Motion dated 19 June 2000, Mr Dunstan seeks an order from the Court that he continue to be detained at the Belconnen Remand Centre pending the hearing of his appeal against his conviction and sentence arising from a trial held in the Supreme Court of the Australian Capital Territory. That motion sought the following orders:

   “1.That the Appellant continue to be held at the Belconnen Remand Centre pending the hearing of his appeal during the week commencing 14^th August 2000.

   2.That the hearing of this Notice of Motion be expedited and, if at all possible, be heard on or before Friday, 23^rd June 2000.

   3.That an appointment of 10 July 2000 for the taxation of costs in proceedings A58 of 1999 be adjourned to a date 2 weeks after the hearing of the appeal.”

2. On 19 May 2000, a Full Court of this Court refused Mr Dunstan’s application for bail pending appeal, but ordered that until 5 June 2000 Mr Dunstan be held at the Belconnen Remand Centre. See Dunstan v The Queen [2000] FCA 686.

3. The Full Court determined to make the latter order given the difficulties Mr Dunstan was experiencing in communicating with members of his family to prepare himself for his appeal, including the preparation of an appeal book. The Court was empowered to make such an order pursuant to O52 r40(1)(b) of the rules of Court, which provides that:

   “In the case of an appeal against conviction or sentence where a prisoner is in lawful custody, the Court or a Judge may, at the request of a party or on its, his or her own initiative, make:

   …

   (b)an order, as the Court or Judge considers appropriate, in relation to the continuing custody of the prisoner.”

4. On 5 June 2000, with the consent of the parties, a Full Court extended the order made on 19 May 2000 so that Mr Dunstan would remain at Belconnen until 26 June 2000. However, whilst consenting to such an order to allow for preparation of the appeal books, Mr Refshauge for the Crown referred the Court to s15 of the Remand Centres Act 1976 (ACT) (“the Territory Act”).

5. Section 15(1)(c) of the Territory Act provides that, “a person convicted by a court in the Territory and sentenced to a period of imprisonment, whether with or without any other punishment”, may be detained in a remand centre. Importantly, s15(2) of the Territory Act provides that:

   “A person detained in a remand centre pursuant to paragraph 1(c) … shall not be detained for any longer than is necessary while awaiting transport to another institution.”

6. Mr Refshauge has been content to co-operate with Mr Dunstan to ensure that he has been able to remain at Belconnen for over a month to prepare for the appeal. However, he contends that s15(2) of the Territory Act evinces a legislative intention that prisoners not be detained in a remand centre without good reason for “longer than is necessary”.

7. Section 15(1)(m) of the Territory Act provides that a person may be detained in a remand centre if the person is:

   “(m)a person convicted by a court in the Territory and sentenced to a period of imprisonment, being a person –

   (i)who is not granted bail or liable to be detained for any other cause;

   (ii)in respect of whose conviction a notice of appeal has been filed; and

   (iii)in respect of whom a court has made an order or issued a warrant for committal to a remand centre.”

   Section 15(1)(m) is unaffected by s15(2) of the Act. However, we consider that the Act, when read as a whole, supports the legislative intention to which we have referred. The additional material filed in this matter by the Crown supports the view that remand centres are not designed for anything but relatively short term detention of convicted persons.

8. In our view, it is time for Mr Dunstan to be detained where a prisoner in his position would ordinarily be detained. Mr Dunstan has had more than adequate time to make any preparations for his appeal, including compilation of the appeal book index. In fact, the appeal books will shortly be filed. The first affidavit of Rebecca Ashcroft of the office of the ACT Director of Public Prosecutions, sworn 22 June 2000, reveals that the appeal books will be finalised tomorrow at the latest.

9. We are fortified in our view that the motion be dismissed by the difficulties experienced at the Belconnen Remand Centre by Mr Dunstan’s detention which are referred to in an affidavit sworn by Mr James Ryan, the Director of ACT Corrective Services.

10. In our view, paragraph 1 of the motion, which seeks an extension of Mr Dunstan’s stay at Belconnen pending the hearing of his appeal, should be dismissed. Paragraph 2 of the motion is machinery and requires no comment. Paragraph 3 relates to a different proceeding which is not subject to appeal and to a question of taxation of costs. That is not a matter for this Full Court. It is a matter which should be raised with the Registry of the Court in Canberra.

11. Accordingly, we order that the appellant’s motion of 19 June 2000 be dismissed.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of this Honourable Court.

Associate:

Dated:             4 July 2000

Mr C Dunstan appeared in person

Counsel for the Respondent:	Mr R Refshauge
Solicitor for the Respondent:	ACT Director of Public Prosecutions
Date of Hearing:	22 June 2000
Date of Judgment:	22 June 2000 (ex – tempore as revised from the transcript)