Wood v The King

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SUPREME COURT OF QUEENSLAND

CITATION:

Wood v The King & Anor [2022] QSC 216

PARTIES:

IAN ANDREW WOOD

(applicant/accused)

v

THE KING

(respondent)

and

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(intervener)

FILE NO/S:

BS No 8867 of 2022

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

12 July 2022

JUDGE:

Davis J

ORDER:

1.    As to the question, “Whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court”, the answer is, “It was not appropriately brought”.

2.   The court refuses to answer the questions:

(1) “Whether the District Court was obliged to hear the application purportedly brought under s 29(7) of the Human Rights Act 2019 on the day it first came before the court”; and

(2) “Whether the District Court ought to have given the Director of Public Prosecutions an opportunity to be heard on an application purportedly brought under s 29(7) of the Human Rights Act 2019”.

CATCHWORDS:

HUMAN RIGHTS - HUMAN RIGHTS LEGISLATION - where the applicant is accused on indictment in the District Court - where he had bail - where bail was revoked - where he brought an application in the District Court as to the lawfulness of his detention - where the application was based on his human right identified by s 29(7) of the Human Rights Act 2019 - where a judge of the District Court referred questions of law to the Supreme Court - whether the questions ought to be entertained - whether the application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court

Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Bail Act 1980
Charter of Human Rights and Responsibilities Act 2006 (Vic), s 4, s 6, s 33
Constitution of Australia, s 80
Criminal Code, s 315A
Extradition Act 1988 (Cth)
Human Rights Act 2004 (ACT), s 18, s 32, s 40, s 40B
Human Rights Act 2019, s 3, s 5, s 9, s 29, s 48, s 49, s 50, s 51, s 52, s 53, s 54, s 58
Judicial Review Act 1991, s 41, s 42
Penalties and Sentences Act 1992, s 12A
Uniform Civil Procedure Rules 1999, r 587, r 588

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT) (2009) 239 CLR 27, followed
Alqudsi v The Queen (2016) 258 CLR 203, cited
Baggaley v Director of Public Prosecutions (Cth) [2020] QCA 179, considered
Bare v Independent Broad Based Anti-Corruption Commission (2015) 48 VR 129, followed
Brown v Australian Capital Territory [2020] ACTSC 70, cited
Brown v The Queen (1986) 160 CLR 171, cited
CIC Insurance Ltd v Bankstown Football Club Inc (1997) 187 CLR 384, followed
De Simone v Bevnol Constructions and Developments Pty Ltd (2010) 30 VR 200,…

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Details
Case
[2022] QSC 216
Decision Date

CaseChat Overview and Summary

In this case, Mr. Wood, who is facing a domestic violence charge, seeks a declaration that his detention is unlawful. The District Court Judge Burnett referred three questions to the Supreme Court regarding the interpretation of the Human Rights Act 2019. The primary issue before the Supreme Court was whether the District Court had the jurisdiction to hear Mr. Wood's application under section 29(7) of the Human Rights Act 2019. The Court considered the relevant statutory provisions, case law, and the appropriate application of human rights legislation. Ultimately, the Court concluded that the District Court did not have the jurisdiction to grant the declaration sought by Mr. Wood. Instead, he should have sought habeas corpus relief in the Supreme Court or applied for bail.

The Court noted that bail applications primarily concern risk rather than the lawfulness of detention. It held that section 29(7) of the Act does not provide a remedy for prisoners to challenge the lawfulness of their detention in the District Court. Instead, they must seek habeas corpus relief in the Supreme Court or apply for bail. The Court further held that the District Court was not obliged to hear Mr. Wood's application on the day it first came before the court, nor was it required to give the Director of Public Prosecutions an opportunity to be heard on the application. Consequently, the Court refused to answer these questions. The Court's decision reinforces the importance of understanding the appropriate application of human rights legislation and the jurisdictional limits of the courts.

Orders

Orders of the court

1. As to the question, “Whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court”, the answer is, “It was not appropriately brought”.

2. The court refuses to answer the questions:

(1) “Whether the District Court was obliged to hear the application purportedly brought under s 29(7) of the Human Rights Act 2019 on the day it first came before the court”; and

(2) “Whether the District Court ought to have given the Director of Public Prosecutions an opportunity to be heard on an application purportedly brought under s 29(7) of the Human Rights Act 2019”.

Background

Background to the litigation

This is the determination of that referral.Factual background Mr Wood is the subject of an indictment presented against him in the District Court on 9 February 2022. The indictment charges one count, namely choking in a domestic relationship[2] and it is averred that the offence is a domestic violence offence.[3][2]Criminal Code, s 315A(1)(a) and (b)(i).[3]Penalties and Sentences Act 1992, s 12A. On that charge, Mr Wood had bail. He failed to appear before the District Court in observance of his bail undertaking and a warrant was issued for his arrest. Mr Wood was arrested pursuant to the warrant and appeared before Dick SC DCJ on 18 May 2022. He was remanded in custody, thus revoking his bail, and an order was made that he be psychiatrically examined. The proceedings on the indictment were adjourned for mention on 15 June 2022. It was anticipated that by that time, Mr Wood would have been psychiatrically assessed. The mention came before Rafter SC DCJ and Mr Wood made an oral application to his Honour in these terms:“The first thing I require, your Honour, is a declaration order under the Human Rights Act of 2019. This will be made under section 29, the right to liberty and security of a person, specifically under subsection (7) which states that a person deprived of liberty by arrest or detention is entitled to apply to a court for a declaration order regarding the lawfulness of the person’s detention. The court must (a) make the decision without delay, and (b) order the release of the person if it finds the detention is unlawful.”[4][4]T 1-2, ll 27-33. Mr Wood did not apply for bail. The only relief he sought was declaratory and the only jurisdictional basis identified for the application was s 29(7) of the Act. Mr Wood’s application was adjourned to the next day. On 16 June 2022, the matter came before Burnett DCJ. Mr Wood:1.did not make application for bail;2.informed the court that a question of law had arisen under the Act;3.sought referral of that question of law to this Court pursuant to s 49 of the Act. Mr Wood identified the question of law to be referred as follows:“The question is whether or not section 29, subsection (7) of the Human Rights Act has been appropriately brought about, whether or not it was lawful for his Honour [Judge Rafter] yesterday [15 June 2022] to fail to make the decision without delay and whether or not is was appropriate for him to ask the prosecutor to make an argument with regard to the matter when it should have simply been a case of the facts put to his Honour as to why the bail was revoked and he should have been making a decision on that day - yesterday - as to whether or not it was lawful.”[5][5]T 1-2, ll 35-45. There is not one, but three questions raised by Mr Wood’s statement which I later identify.[6][6]See paragraphs [30]-[37] of these reasons. Judge Burnett thought that the question, which he took to be whether s 29(7) of the Act provided a remedy, had already been authoritatively decided against the position adopted by Mr Wood, by Crow J in Pauga v Chief Executive, Queensland Corrective Services & Anor.[7] His Honour proposed that he ought decide the question which was posed by Mr Wood by following Pauga, thus giving Mr Wood an opportunity to challenge the correctness of that decision on appeal. In those circumstances, it would be unnecessary to refer the question. No consideration need be given to the appropriateness or otherwise of that proposed approach. Mr Wood pressed for the referral and ultimately his Honour made it.[7](unreported), 18 December 2020, Supreme Court Rockhampton.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In my respectful view, the comments of Fraser JA in Baggely v Director of Public Prosecutions (Cth),[67] which are set out at paragraph [78] of these reasons, are consistent with an understanding that bail applications concern risk, not the lawfulness or otherwise of detention. This explains his Honour’s comment that “an appeal against the refusal of bail is not the mechanism for advancing claims [of unlawful imprisonment]”.[67][2020] QCA 179.Conclusions and orders Section 29(7) of the Act does not vest jurisdiction in the District Court to grant a declaration that a prisoner was being held in custody unlawfully. To make such a challenge, a prisoner ought to seek habeas corpus in this Court. Such an application may have difficulties. Mr Wood’s real remedy is to apply for bail. In any event, that is a matter for Mr Wood. It is ordered:1.As to the question, “Whether or not an application purportedly made pursuant to s 29(7) of the Human Rights Act 2019 was appropriately brought in the District Court”, the answer is, “It was not appropriately brought”. The court refuses to answer the questions:(1)“Whether the District Court was obliged to hear the application purportedly brought under s 29(7) of the Human Rights Act 2019 on the day it first came before the court”; and(2)“Whether the District Court ought to have given the Director of Public Prosecutions an opportunity to be heard on an application purportedly brought under s 29(7) of the Human Rights Act 2019”.

Ratio Decidendi

Legal Principle Established

Section 4(g) concerns s 53. Section 53 provides:“53 Declaration of incompatibility(1)This section applies if—(a) in a proceeding in the Supreme Court a question of law arises that relates to the application of this Act or a question arises in relation to the interpretation of a statutory provision in accordance with this Act; or(b) a question is referred to the Supreme Court under section 49; or(c) an appeal before the Court of Appeal relates to a question mentioned in paragraph (a).(2)The Supreme Court may, in a proceeding, make a declaration (a declaration of incompatibility) to the effect that the court is of the opinion that a statutory provision can not be interpreted in a way compatible with human rights.(3)However, the Supreme Court can not make a declaration of incompatibility about a statutory provision if an override declaration is in force in relation to the provision.(4)If the Supreme Court is considering making a declaration of incompatibility, the court must give notice of that fact in the approved form to the Attorney-General and the commission.(5)The Supreme Court must not make a declaration of incompatibility unless the court is satisfied—(a) a notice has been given to the Attorney-General and the commission under subsection (4); and(b) a reasonable opportunity has been given to the Attorney-General and the commission to intervene in the proceeding or to make submissions about the proposed declaration.(6)For the Supreme Court of Queensland Act 1991, section 62, a declaration of incompatibility is taken to be an order of the court in the Trial Division.” Like s 49, s 53 clearly bestows jurisdiction upon this Court. Section 5 is in these terms:“5 Act binds all persons(1)This Act binds all persons, including the State and, to the extent the legislative power of the Parliament permits, the Commonwealth and the other States.(2)This Act applies to—(a) a court or tribunal, to the extent the court or tribunal has functions under part 2 and part 3, division 3; and(b) the Parliament, to the extent the Parliament has functions under part 3, divisions 1, 2 and 3; and(c) a public entity, to the extent the public entity has functions under part 3, division 4.(3)Subsection (2) does not limit or otherwise affect—(a) another function conferred by this Act on an entity mentioned in the subsection; or(b) a function conferred by this Act on any other entity.(4)Nothing in this Act makes the State liable to be prosecuted for an offence.” (emphasis added) This section, consistently with s 4, confirms that functions are bestowed upon all three branches of government. Section 5(2)(a) concerns the judicial arm of government and prescribes how the Act applies to the courts. Section 9 of the Act provides:“9 Meaning of public entity(1)Each of the following entities is a public entity—(a) a government entity within the meaning of the Public Service Act 2008, section 24;(b) a public service employee;(c) the Queensland Police Service;(d) a local government, a councillor of a local government or a local government employee;(e) a Minister;(f) an entity established under an Act when the entity is performing functions of a public nature;(g) a member of a portfolio committee when the committee is acting in an administrative capacity;(h) an entity whose functions are, or include, functions of a public nature when it is performing the functions for the State or a public entity (whether under contract or otherwise);Example of an entity not performing functions of a public nature for the State—A non-State school is not a public entity merely because it performs functions of a public nature in educating students because it is not doing so for the State.(i)a person, not otherwise mentioned in paragraphs (a) to (h), who is a staff member or executive officer (however called) of a public entity;(j)an entity prescribed by regulation to be a public entity.(2)A public entity includes—(a) a registered provider when the provider is performing functions of a public nature in the State; and(b) a non-State police officer, under the Police Service Administration Act 1990, section 5.17, while the officer—(i)is appointed as a special constable under section 5.16(1) of that Act; or(ii)is authorised under section 5.17(2) of that Act to exercise the powers of a police officer; or(iii)is exercising a power under another law of the State.(3)Also, a public entity includes an entity for which a declaration is in force under section 60.(4)However, a public entity does not include—(a) the Legislative Assembly or a person performing functions in connection with proceedings in the Assembly, except when acting in an administrative capacity; or(b) a court or tribunal, except when acting in an administrative capacity; or(c) an entity prescribed by regulation not to be a public entity.(5)In this section—entity means an entity in and for Queensland.registered provider means a registered provider of supports or a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cwlth).” (emphasis added)