R v Shane Cringle
[2013] ACTSC 34
HUMAN RIGHTS ACT
R v SHANE CRINGLE
[2013] ACTSC 34 (5 March 2013)
STATUTORY INTERPRETATION – Corrections Management Act2007 (ACT) (the Act), ss 122, 128 – application to exclude letter from evidence – whether the Act authorised the seizure of a letter – the word “anything” found in s 122 (1) (b) extends to the envelope containing the letter – the meaning of searching and seizing must extend to reading written material – statutory right on the part of the Director-General to conduct a search of an envelope found in a prisoner’s cell and to seize the letter within on forming a belief that the letter was intended to be used for the commission of an offence
HUMAN RIGHTS - Human Rights Act2004 (ACT), s12 – right to privacy – application to exclude letter from evidence – whether unlawful or arbitrary breach of privacy – prisoners and detainees form separate subset of population requiring special rules – search authorised by Corrections Management Act2007 (ACT), ss 122, 128 – search not unlawful – provisions of the Act do not authorise arbitrary searches – no arbitrary interference with rights
Corrections Management Act2007 (ACT), ss 122, 128
Corrections Management (Human Rights) Policy 2010 (ACT)
Criminal Code 2002 (ACT), ss 45, 703
Human Rights Act2004 (ACT), s 12
REASONS FOR DECISION
No. SCC 130 of 2012
Judge: Burns J
Supreme Court of the ACT
Date: 5 March 2013
IN THE SUPREME COURT OF THE )
) No. SCC 130 of 2012
AUSTRALIAN CAPITAL TERRITORY )
R
v
SHANE CRINGLE
ORDER
Judge:Burns J
Date:30 January 2013
Place:Canberra
THE COURT ORDERED THAT:
The application to exclude evidence was refused.
On 30 January 2012, the trial of the accused on one count of assault occasioning actual bodily harm commenced. After the jury was empanelled, counsel for the accused sought a ruling that a letter written by the accused and addressed to Dean Simonds, which the Crown proposed to lead as evidence in the trial, be excluded.
The offence with which the accused was charged occurred in the Alexander Maconochie Centre (the AMC). The accused was on remand in the AMC, whereas the complainant was a sentenced prisoner. Even though the complainant was a sentenced prisoner he was being held in the remand yard at the AMC. The Crown case was that on 20 October 2011 the accused attacked the complainant in his cell.
On or about 18 May 2012, the accused was released from the AMC on bail. A routine search of his cell after his release located an envelope addressed to Dean Simonds, who was also a resident of the remand yard at the date of the alleged assault. Inside the enveloped was a letter addressed to “Deano”, apparently a reference to Dean Simonds. The content of the letter was such that a jury could infer that the accused was endeavouring to dishonestly enlist Mr Simonds to give evidence supporting the accused’s version of events regarding the assault.
Counsel for the accused sought to have the letter excluded on the following grounds:
1. The letter was located during a routine search of his cell on 18.5.12 carried out in accordance with usual procedure following his release from custody that day. However, no person was authorised to seize, open or read it, either under the Corrections Management Act 2007 (A.C.T.) or at all.
2. Further, the seizure and reading of the letter was in breach of the accused’s right to privacy under s 12 of the Human Rights Act 2004 (A.C.T.).
In addition, counsel for the accused called in aid the provisions of the Corrections Management (Human Rights) Policy 2010 (ACT).
After hearing counsel I refused the application to exclude the letter, indicating at the time I would publish my reasons at a later date. These are those reasons.
In the course of his submissions, counsel for the accused made it clear that he did not suggest that the search of the accused’s cell was unlawful. However, he pressed that there was no warrant for anyone at the AMC to seize the envelope containing the letter, to open it, and to read the letter inside.
AUTHORITY TO SEIZE AND READ THE LETTER
The accused’s submission was misconceived. Section 122 (a) (b) of the Corrections Management Act2007 (ACT) (the Act) provides that the Director-General may, at any time, direct a corrections officer to search “anything at a correctional centre, including anything in the possession of anyone at a correctional centre”. As I indicated in argument with the accused’s counsel, there is no reason why the word “anything” found in s 122 (1) (b) should not extend to the envelope containing the letter.
Accepting that s 122 (1) (b) is the source of the corrections officer’s authority to search the envelope found in the accused’s cell, s 128 (1) (b) authorises the director-general to seize anything found at a correctional centre that the Director-General suspects, on reasonable grounds, is intended for the commission of an offence. It is an offence in the ACT to attempt to procure the commission of the offence of perjury by another: see Criminal Code 2002 (ACT), ss 45 and 703.
The Act is silent regarding authority to read the letter, but that must be implied by the provisions of ss 122 and 128. It would make a mockery of the scheme of the Act, proving as it does for search and seizure of places and things in custodial centres, to suggest that these powers did not extend to reading written material.
The foregoing establishes a statutory right on the part of the Director-General to conduct a search of the envelope found in the accused’s cell and to seize the letter within on forming a belief that the letter was intended to be used for the commission of an offence.
RIGHT TO PRIVACY
Section 12 of the Human Rights Act2004 (ACT) provides that everyone has the right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily. As ss 122 and 128 of the Act allow for the search and seizure of the envelope and the letter, any interference with the accused’s rights regarding them was not unlawful. Nor can it be argued that any such interference was arbitrary. The Act, and the powers of search and seizure given to the Director-General under it, is directed towards the maintenance of safety and discipline within correction centres. Prisoners or remandees held at such centres form a discrete sub-set of the general population, for whom it is necessary to make particular rules because of their status as detainees or prisoners. Because of that status, different rules to those applying to the general population will often be required, as expressed by the Act. The provisions in the Act governing search and seizure within correction centres do not authorise arbitrary interference with inmates’ privacy or correspondence. To the contrary, they are targeted at inmates by virtue of their statutes as detainees or prisoners. As such, the search of the envelope found in the accused’s cell, and the seizure of the letter found within the enveloped, was not an arbitrary interference with any right enjoyed by the accused.
The very general nature of the terms of the Corrections Management (Human Rights) Policy cannot change this situation. The policy is cast in aspirational terms, essentially stating the commitment of Corrections to maintaining human rights in the AMC to the extent that they are consistent with the operational requirements of the centre.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 5 March 2013
Counsel for the Applicant: Mr A Doig
Solicitor for the Applicant: Paul Edmonds & Associates
Counsel for the Respondent: Mr T Jackson
Solicitor for the Respondent: Director of Public Prosecutions
Date of Hearing: 30 January 2013
Date of Judgment: 30 January 2013
Date of Reasons: 5 March 2013
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