DPP v Alexander (a pseudonym) [2024] ACTSC 161 (24 May 2024)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

[2024] ACTSC 161

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Bail - application for bail and review of bail decision from the Magistrates Court - [redacted] - where accused detained with convicted offenders, contrary to s 19 of the Human Rights Act 2004 (ACT) - breach of human right amounts to "special or exceptional circumstances" for the purpose of s 9D of the Bail Act 1992 (ACT) - consideration of s 22 factors - bail granted

CRIMINAL LAW - STATUTORY INTERPRETATION - Accused detained with convicted offenders, contrary to s 19 of the Human Rights Act 2004 (ACT) - whether contravention amounts to "special or exceptional circumstances" for the purpose of s 9D of the Bail Act 1992 (ACT) - consideration of relevant statutory provisions and Corrective Services policies - right contained in s 19(2) not limited by s 44 of the Corrections Management Act 2007 (ACT) - purpose of s 44 is to implement rather than qualify the right contained in s 19(2) - special circumstances favouring the grant of bail established

Bail Act 1992 (ACT), ss 9D, 20B, 22, 43A

Corrections Management Act 2007 (ACT), ss 7, 9, 10, 14, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 52, 55, , , , , ,

Crimes (Sentence Administration) Act 2005 (ACT), s 18

Human Rights Act 2004 (ACT), ss 19, 28, 30, 34, 36, 40B, Pt 3

Legislation Act 2001 (ACT), ss 139, 140, 141, 142

Davidson v Director-General, Justice and Community Safety Directorate [2022] ACTSC 83; 18 ACTLR 1

McIver v The King [2023] ACTCA 48; 20 ACTLR 303

ACT Corrective Services, Corrections Management (Remand Detainees) Policy 2019 (at 13 June 2019)

ACT Corrective Services, Placement and Shared Cell Operating Procedure (at 21 September 2022)

Explanatory Statement, Corrections Management Bill 2006 (ACT)

• 1․ This is an application for bail. The application is subject to s 9D of the Bail Act 1992 (ACT). I ultimately conclude that the requirement for "special or exceptional circumstances" in s 9D of the Act has been satisfied and that the considerations in s 22 of the Act warrant a grant of bail.

Section 9D test

• 17․ The submission that there were either special or exceptional circumstances established was based upon an aggregation of factors. [redacted]
• 18․ There was some evidence or information that the accused was detained with convicted sex offenders. I raised with the parties whether or not that fact and the terms of s 19 of the Human Rights Act 2004 (ACT), either individually or in combination with the other factors raised by the accused, may constitute "special circumstances" for the purpose of s 9D. The accused said that, if established, he would rely upon a contravention of s 19, along with the other factors that he identified, in order to establish that there were special or exceptional circumstances.
• 19․ It was not possible to address this issue any further because notice had not been given to the Attorney-General of the Australian Capital Territory (ACT) or the Human Rights Commission, as required by s 34 of the Human Rights Act. As a consequence, I made directions relating to the giving of notice to the Human Rights Commission and the Attorney-General.

• 20․ Leaving aside the operation of s 19 of the Human Rights Act, I would not have accepted that the eight other matters relied upon by the accused in order to establish special or exceptional circumstances either individually or collectively give rise to such circumstances. [redacted]. However, in my view, the aggregation of circumstances put forward would not be sufficient to create special circumstances. They do not take the matter outside the usual run of criminal cases. The usual run of criminal cases includes cases where positive defences are run, where the facts are unusual, where the case may take a substantial period before it is ready for trial and where there are co‑offenders or other persons detained at the AMC in relation to whom the applicant for bail has association issues.

Section 22 factors

• 21․ For reasons which I explain below, it is appropriate to indicate the conclusions that I would have reached on the s 22 considerations if the threshold in s 9D was passed. [redacted].

• 26․ The position is, therefore, that, but for the issue arising in relation to s 9D, it is an appropriate case in which to make a grant of bail based upon, but not necessarily in precisely the same as, those conditions contended for by counsel for the accused.
• 27․ That conclusion means that the possible establishment of special circumstances by reference to the non-compliance with the obligations in s 19 of the Human Rights Act is significant for the accused. Unless that constitutes "special or exceptional circumstances", then the effect of s 9D is that the bail application must be dismissed.

Notice to the Attorney-General and Human Rights Commission

• 28․ As noted earlier, in order for the court to be able to consider the issue relating to the operation of the Human Rights Act, it was necessary for notice to be given under s 34 of that Act to the Attorney-General and the Human Rights Commission. The Human Rights Commissioner made an application pursuant to s 36 of the Human Rights Act to intervene. That was not opposed, and the court gave leave for that intervention. Counsel for the Commissioner made detailed and constructive submissions on the issue raised.

Evidence relating to s 19(2)

• 29․ The evidence established that the accused is housed in a part of the AMC referred to as [redacted]. It was an agreed fact that this is special housing for detainees requiring a high level of protection and that it holds approximately half remandees and half sentenced prisoners. The accused was housed there because he made an application for protection, which was taken into account in the detainee placement decision. [redacted].
• 30․ Natalie Veenstra gave evidence relevant to the s 19 issue. She is employed by ACT Corrective Services as Senior Director, Accommodation at the AMC. Her role includes overseeing detainee accommodation and placement decisions.
• 31․ Her evidence was that, upon induction on 18 January 2024, a placement assessment was undertaken. It was noted that the accused was vulnerable due to this being his first time in custody, [redacted].
• 32․ She was asked about whether there was a legal obligation to keep remandees separate from sentenced prisoners. She explained the current approach to that issue:

Counsel: In terms of your understanding of accommodation, are there any obligations on the AMC in relation to the separation of sentenced prisoners vs remanded prisoners? > > Witness: There is a piece in our legislation that does have that [requirement] however we are obliged to protect our detainees to the best of our ability considering many factors. We hold high standards of safety and security. In respect of separation of remand and sentenced prisoners, we uphold the value of safety and security over that based on the inability to keep them separated safely. But they have adequate access to their legislative requirements such as open-air exercise, education programs, association visits, etc.

• 33․ She was later asked about some of the names of the different accommodation facilities at the AMC (Remand Unit 1, Remand Unit 2 and Remand Cottage 2) which were suggestive of an intention to keep remandees accommodated in separate areas to sentenced prisoners.

Counsel: And those three contractions [RU1, RU2, RC2] I have taken you to I imagine all relate specifically to the accommodation of remand prisoners. > > Witness: So it is outdated in the unit name. That was the initial design of the AMC to separate remand and sentenced detainees. So the vision on opening the AMC is that we would be able to do that. On quickly after opening the AMC, we realised that the safety and practicality of that was near impossible to manage, whilst we entertained the many risks that I spoke of including offences, security classification, risk, associations - it was impossible to keep that. So whilst those units are named that, it is not the functionality as we stand today.

• 34․ Ms Veenstra was a straightforward and impressive witness. Her evidence clearly explained the current situation. It made it clear that, in relation to remandees such as the accused, the staff at the AMC are doing their best to address the variety of considerations necessary to ensure detainee safety within the resources and facilities that they have. However, it was clear that the focus was on safety and there was no attempt, in addition, to segregate remandees from sentenced prisoners. Rather, the status as remandee or sentenced prisoner was simply one of a variety of considerations in determining the appropriate placement of any particular detainee.
• 35․ The current practice in relation to detainees is expressed in the Corrections Management (Remand Detainees) Policy 2019 (NI 2019-377) which provides:

• 6.1 The General Manager Custodial Operations will consider all reasonable options to accommodate remand and sentenced detainees separately in accordance with section 44(2) of the Corrections Management Act 2007 (ACT).
• 6.2 The Head of Accommodation will ensure that remanded detainees are placed in the most suitable and least restrictive accommodation necessary to ensure the safety of the detainee or any other person, in accordance with section 44(4) of the Corrections Management Act 2007 (ACT).
• 36․ What is notable about this is that, although reference is made to s 44(2) of the Corrections Management Act 2007 (ACT), the language used does not reflect the mandatory nature of the obligation under that subsection. Rather, the obligation is reduced to the status of a consideration of a matter which it is desirable to achieve.
• 37․ The "Placement and Shared Cell Operating Procedure" provides instructions to correctional staff as to how to make the initial placement decision and subsequent placement decisions. It is notable that it makes no reference to the remand detainee policy. It does, however, include a requirement that "sentenced or remand status" be considered when determining the placement following induction, determining detainee requests to share a cell with another detainee and when conducting placement reviews. There is nothing to indicate how the distinction between sentenced or remand status is to be treated at an operational level. There is certainly nothing that indicates the implementation of a rule that sentenced and remand prisoners are to be accommodated separately.

(a) The AMC was initially designed so as to separately accommodate remandees and sentenced prisoners.

(b) Sometime after the opening of the AMC, it was concluded by the Director‑General, who was responsible for the facility, that it was too hard to manage those pools of prisoners separately and the regime of accommodation in separate facilities was abandoned.

(c) The focus of the Director-General is on maintenance of overall detainee safety and there is no attempt, in addition, to keep remand and sentenced detainee populations in separate accommodation.

(d) The approach taken in relation to the accused was to house him in a manner which the Director-General considered was the most suitable accommodation, taking into account the matters on the detainee placement form, including his safety.

(e) The Director-General has placed the accused in accommodation with a mix of sentenced and remand detainees.

(f) There is no complaint made about the accused's safety in the accommodation where he has been placed.

• 39․ The relevant provisions are as follows.
• 40․ Section 19 of the Human Rights Act 2004 (ACT) provides:
  1. Humane treatment when deprived of liberty

(1) Anyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the human person.

(2) An accused person must be segregated from convicted people, except in exceptional circumstances.

Note An accused child must also be segregated from accused adults (see s 20 (1))

(3) An accused person must be treated in a way that is appropriate for a person who has not been convicted.

• 41․ Section 28 of the Human Rights Act provides:
  1. Human rights may be limited

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(a) the nature of the right affected;

(b) the importance of the purpose of the limitation;

(c) the nature and extent of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

• 42․ Section 28 means that any derogation from the right in s 19(2) is not a contravention of the Act if there is a limit set by law and that law can be "demonstrably justified in a free and democratic society".
• 43․ The Corrections Management Act is the law that regulates the operation of the AMC. Provisions within that Act can, under s 28 of the Human Rights Act, qualify the rights set in Pt 3 of the Human Rights Act.
• 44․ The objects of the Corrections Management Act are as follows:
  1. Main objects of Act

The main objects of this Act are to promote public safety and the maintenance of a just society, particularly by -

(a) ensuring the secure detention of detainees at correctional centres; and

(b) ensuring justice, security and good order at correctional centres; and

(c) ensuring that detainees are treated in a decent, humane and just way; and

(d) promoting the rehabilitation of offenders and their reintegration into society.

• 45․ Sections 9-10 of the Corrections Management Act provide:
  1. Treatment of detainees generally

Functions under this Act in relation to a detainee must be exercised as follows:

(a) to respect and protect the detainee's human rights;

(b) to ensure the detainee's decent, humane and just treatment;

(c) to preclude torture or cruel, inhuman or degrading treatment;

(d) to ensure the detainee is not subject to further punishment (in addition to deprivation of liberty) only because of the conditions of detention;

(e) to ensure the detainee's conditions in detention comply with section 12 (Correctional centres - minimum living conditions);

(f) if the detainee is an offender - to promote, as far as practicable, the detainee's rehabilitation and reintegration into society.

(1) Functions under this Act in relation to a detainee who is a remandee must also be exercised to recognise and respect that -

(a) the remandee must be presumed innocent of any offence for which the remandee is remanded; and

(b) the detention is not imposed as punishment of the remandee.

(2) Subsection (1) does not apply if the remandee -

(a) has been convicted or found guilty of the offence for which the remandee is detained; or

(b) is under a sentence of imprisonment in relation to another offence.

1. a convicted person remanded in custody for sentencing
2. a paroled offender remanded in custody during an adjournment of a hearing by the sentence administration board

• 46․ Section 44 of the Corrections Management Act provides:
  1. Treatment of convicted and non-convicted detainees

(1) Without limiting section 14 (Corrections policies and operating procedures), the director-general must make a corrections policy or operating procedure providing for different treatment of convicted detainees and non-convicted detainees.

a corrections policy or operating procedure, in accordance with the following rules of the United Nations Standard Minimum Rules for the Treatment of Prisoners, for non‑convicted detainees to be able to -

• procure food at own expense (r 87)
• be offered work but not be obliged to work (r 89)
• procure reading and writing material at own expense (r 90)
• visit and be treated by own doctor at own expense (r 91)

(2) The director-general must also ensure that convicted detainees are accommodated separately from non-convicted detainees.

(a) a detainee's entitlement in relation to treatment in detention includes anything expressed to be an entitlement in a corrections policy or operating procedure made for subsection (1); and

(b) subsection (2) is taken to provide an entitlement for each detainee in relation to accommodation.

(4) However, the director-general may give directions for different accommodation of a non-convicted detainee if the director-general suspects, on reasonable grounds, that is necessary to ensure the safety of the detainee or anyone else.

Remandee J has served various sentences for violence offences, has an aggressive personality and enjoys bullying other people. The director‑general suspects that other remandees detained with J are highly vulnerable in comparison with J. The director‑general decides that J should be accommodated with convicted offenders.

convicted detainee means a detainee whose detention is because of the detainee's conviction of an offence.

• 47․ Section 14 of the Corrections Management Act provides that the Director-General may make corrections policies and operating procedures "consistent with this Act" to facilitate the effective and efficient management of correctional services.

Non**-compliance with s 19(2)**

• 48․ For the purposes of this provision, Mr Alexander is an accused person and is being accommodated with convicted people. That means he is not segregated from them. In my view, no exceptional circumstances, as contemplated by s 19(2), are established. The fact that he is accommodated in a manner which achieves, in the context of the current operation of the AMC, the safest available outcome for him does not establish exceptional circumstances. Rather, the circumstances appear to be entirely unexceptional. They involve the routine operation of the AMC. That routine operation places an emphasis on achieving the best safety outcome within the current facilities, but does not attempt to achieve segregation of remandees from sentenced prisoners.
• 49․ As a consequence, s 19(2) is not satisfied in relation to the accused's accommodation at the AMC. As pointed out in McIver v The King [2023] ACTCA 48; 20 ACTLR 303, this circumstance does not render his detention unlawful, even though it could involve, as pointed out later in these reasons, a contravention of the Human Rights Act.

Limitation under s 28

• 50․ That does not mean that the accommodation involves a breach of the Human Rights Act. That is because human rights may be limited in accordance with s 28. That involves two components. First, whether the limitation is one which is "set by laws". Second, those laws must be "demonstrably justified in a free and democratic society".
• 51․ For present purposes, it is only necessary to consider the first of those requirements of s 28. It is necessary to ask whether the limitation on the right under s 19(2), which is evidenced by the accused's placement with sentenced prisoners, is a limit "set by [law]". It is that issue to which I now turn.

• 52․ The issue as to whether the limits on the right under s 19(2) are "set by [law]" turns on the meaning of s 44 of the Corrections Management Act. I do not accept the submission made by the Director that other statutory provisions. such as s 18 of the Crimes (Sentence Administration) Act 2005 (ACT) (which is the general obligation upon the Director‑General to keep remandees in custody), are relevant to this question. That is because the issue of segregation of remandees from sentenced detainees is expressly dealt with in s 44 and qualifies the general power of detention.
• 53․ The two most relevant subsections are ss 44(2) and 44(4).
• 54․ The approach outlined in the remandee detention policy makes reference to ss 44(2) and 44(4) but, for the following reasons, does not comply with those provisions. Further, as I will explain, the provisions of s 44 do not justify the routine mixing of sentenced and remand detainees.

(a) Because of the limited facilities available, it is not possible to have a general rule that segregates remandees from sentenced detainees safely.

(b) Therefore, remandees and sentenced detainees are routinely mixed and grouped on the basis of safety, rather than on the basis of their status as being remanded or sentenced.

(c) Any new detainee coming into the system cannot then be allocated to accommodation based on status as remandee or sentenced detainee because to do so would create a safety issue either for the remandee or for someone else.

(d) Therefore, the detainee may be allocated to accommodation inconsistent with the s 44(2) rule because of the need for safety accommodated by s 44(4).

• 61․ However, s 44 must be understood having regard to the rule in s 139 of the Legislation Act 2001 (ACT) that an interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. Further, in working out the meaning of provisions of the Act, those provisions must be interpreted in the context of the Act as a whole: Legislation Act, s 140.
• 62․ In my view, s 44(4) cannot be interpreted as rendering lawful the allocation of accommodation at the AMC on the basis of safety in circumstances where the general rule in s 44(2) is not otherwise complied with. That is because it would be contrary to s 139 of the Legislation Act to permit the limited and individualised exception in s 44(4) to swallow the mandatory rule in s 44(2).
• 63․ Section 139 of the requires a court to prefer an interpretation of an Act that would "best achieve the purpose of the Act". In the present case, the purpose of the Act is very clearly to accommodate detainees in a manner consistent with their human rights as articulated in the . That is made clear by the preamble to the , which indicates that the criminal justice system should "respect and protect all human rights in accordance with the ..." and the requirement in that functions under the Act must be exercised so as to "respect and protect the detainee's human rights". It is also significant that of the makes specific reference to the differential treatment of remandees in order to recognise that they are presumed innocent of any offence. The existence of the right in of the and the clear indications that the is designed to be consistent with those rights, at least in this respect, strongly favours an interpretation of the provisions of so that they give effect to That can be done by interpreting the provisions of so that they establish a general rule with a very limited exception, consistent with the general rule articulated in which is subject to an "exceptional circumstances" exception.

It is a human rights principle that non-convicted detainees should not be accommodated with convicted detainees. However, an exception to this principle lies where some non-convicted individuals may be vulnerable to another non-convicted individual. > > The clause gives an example of an exception to the principle of separating convicted and non-convicted detainees.

• 65․ It is notable that although the explanatory statement indicated that the proposed Act "sets out reasonable limitations upon a sentenced offender's human rights, or a detainee's rights, consistent with the object of the Bill" (page 2), there is nothing in clause 44 which indicates an intention to qualify the right under s 19(2) of the Human Rights Act. Rather, it is consistent with an intention to implement the rights there stated. In my view, the effect of the extrinsic material is to reinforce the conclusion that the purpose of the Act was to implement rather than qualify the obligation under s 19(2) of the Human Rights Act.
• 66․ Finally, it is appropriate to make reference to s 30 of the Human Rights Act, which provides:
  1. Interpretation of laws and human rights

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

• 67․ This is a provision of limited operation because it first requires a determination of the purpose of the relevant Act. Once the purpose of the Act is worked out, then the language of s 30 indicates that it is that purpose that must be implemented in preference to compatibility with human rights. It is only if it is possible, consistent with the purpose, to favour a human rights interpretation, that the provision will be of significance.
• 68․ In the present case, I have concluded that the purpose of s 44 of the Corrections Management Act was to implement rather than qualify the right contained in s 19(2) of the Human Rights Act. The only manner in which it might be said to qualify the s 19(2) right would be to the extent to which the exception in s 44(4) could be argued to be broader than the concept of "exceptional circumstances". However, that would be, at most, a minimal qualification on the right and more likely, so long as s 44(4) is understood in the manner that I have indicated earlier, be within the scope of "exceptional circumstances" as referred to in s 19(2).
• 69․ However, to the extent that s 30 has any operation, it would favour an interpretation which involved subs 44(2) and (4) as having an operation consistent with , rather than interpreting those provisions as involving any substantial departure from the right in That would favour an interpretation which confined the operation of s 44(4) to circumstances where the general obligation in s 44(2) was otherwise being applied.

Section 40B

• 71․ The accused in the present case has been detained with sentenced detainees in circumstances where there is no generally operating rule by which the Director‑General ensures that remandees are accommodated separately to sentenced detainees. His allocation to accommodation which includes both remandees and sentenced detainees in those circumstances involves a breach of his entitlements under s 19(2) of the Human Rights Act, which right is not limited, pursuant to s 28 of the Human Rights Act, by the provisions of s 44 of the Corrections Management Act.
• 72․ Because the non-compliance with s 19(2) has not been shown to be a reasonable limit set by law pursuant to s 28 of the Human Rights Act, the Director‑General, in accommodating the accused in the manner described, has acted in a manner that is incompatible with a human right for the purposes of s 40B(1)(a) of that Act.
• 73․ Although the Commissioner made submissions concerning the scope of the obligation "to give proper consideration" to a relevant human right under and in relation to the application of that obligation in the circumstances of the present case, it is not essential to address those issues in circumstances where a direct breach of the right has been established. It is not appropriate to do so as a prevalence of dicta on such questions is unhelpful.

• 74․ The fact that the accused is detained in circumstances which involve a contravention of his right under the Human Rights Act is, in my view, sufficient to amount to at least "special" circumstances for the purposes of s 9D of the Bail Act. It could be argued that because the evidence discloses a general policy of accommodating remandees and sentenced detainees together, the breach of the Act affects all remandees and, as a consequence, is not "special". While that is a logically attractive proposition, it is one which fails to give proper weight to the existence of a breach of the law. That has been established in relation to the accused and, in my view, should be given effect when considering the operation of s 9D.
• 75․ I do not accept the submission made by the Director that a contravention of the Human Rights Act in relation to the detention of the accused is not a circumstance "favouring the grant of bail" for the purposes of s 9D(2). The circumstance that the incarceration of the accused involves a breach by the Director-General of the Human Rights Act is clearly a matter favouring bail, because that breach would be avoided if the accused was no longer in the Director-General's custody.
• 76․ Having regard to the breach of the Human Rights Act in relation to the accused, special circumstances favouring the grant of bail are established and, as a consequence, there is no impediment to a grant of bail in circumstances where the considerations in of the make that appropriate, as I have found to be the case.

(a) the executive could comply with its legal obligations in relation to the separate accommodation for remandees;

(b) an amendment could be made to the Human Rights Act or the Corrections Management Act so as to render lawful the current arrangements; or

(c) the Bail Act could be amended so that it operated without regard to the breaches of the law identified in these reasons.

• 78․ For the reasons given, there will be a grant of bail in relation to the two sets of proceedings that the court is currently dealing with. Notwithstanding the grant of bail, there are other proceedings in the Magistrates Court in relation to which the accused has been refused bail which are not affected by the orders that I will make.

I certify that the preceding eighty [80] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.