Supreme Court of the ACT|2016-04-13|Before: Burns J

Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70 (13 April 2016)

Miles v Director-General of the Justice and Community Safety Directorate

PRISONS - Administration - case preparation in custody - where a detainee has chosen another detainee to be his "legal advisor" - where detainees have been separated in custody - whether breach of s 22(2)(b) of the Human Rights Act 2004 (ACT) - meaning of "legal advisor" - no reference to legal issues in communications between detainees - no explanation of choice of detainee as legal advisor - application dismissed.

Eastman v Besanko [2009] ACTCA 23

Hakimi v Legal Aid Commission (ACT) (2009) 227 FLR 462

Management (Correctional Centres) Declaration 2009 (No. 2) (ACT)

International Covenant on Civil and Political Rights, opened for signature 16 December 1966, UNTS171 (entered into force 23 March 1976), art 14

Director-General of the Justice and Community Safety Directorate (Respondent)

1. The applicant, Christopher Miles, is currently serving a sentence of imprisonment at the Alexander Maconochie Centre (the AMC). He has appealed from the sentence which was imposed, and his appeal is listed to be heard in the Court of Appeal sittings in May this year.

2. By an application dated 4 February 2016, wrongly filed in the appeal proceedings, the applicant sought orders that he be permitted three "legal advisory visits", each of three hours duration, with his chosen legal advisor. His chosen legal advisor is another serving prisoner within the AMC, who I will refer to as detainee CU. The grounds of the application as set out by the applicant, were:

The Plaintiff submits that he is clearly entitled to these legal advisory visits, between himself and legal advisors of his choosing, under s22 (2) (b) of the ACT Human Rights Act, 2004; which states:

'Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally without everyone else:

'to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chose by him or her'.

The plaintiff asserts the contravention of these provisions on behalf of the Alexander Machonochie Centre (AMC) (sic) is inconsistent with a Human Right (namely s22 (2) (b)) and provides a cause for action and ensures jurisdiction under Part 5A of the Human Rights (HR) Act, 2004 dealing with the obligations of public authorities in the ACT (of which the AMC is a part), s40A describing the functions of public authorises, s40B (1)(a) which makes it unlawful for a public authority to act in a way inconsistent with a human right, and finally s40C which enables the plaintiff by these proceedings to complain of conduct inconsistent with a human right, including the right under s40C(4); to seek such relief as the Court considers appropriate, excepting damages (sic).
The Plaintiff states he has a current criminal Appeal (ACTCA 30 of 2015) under way, and requires these three interviews with detainee [CU] because of the detainees legal training (he has studied law at University level) and the detainee has previously assisted the Plaintiff with legal advice relating to this matter. The Plaintiff has applied both verbally and in writing to conduct a legal advisory interview with the detainee, but, as of this time jail management has refused this request. The Plaintiff will seek to present to the Court written evidence of his applications to hold an interview with his chosen legal advisor.

3. I note that the Oxford English Dictionary (2nd Ed.) says that the usual spelling is "adviser", but that the spelling "advisor" is frequently used "especially" in the United States. The legislature has used the spelling "advisor" in s 22(2)(b) of the Human Rights Act 2004 (ACT) (the HRA), and for the sake of consistency I will adopt that spelling in these reasons.

4. The application came before me on 17 February 2016, at which time I made procedural orders. Those orders included that the application was to be treated as an application in separate proceedings, and that the applicant file and serve an affidavit in support of his application within 7 days.

5. In compliance with these orders, the applicant swore an affidavit on 22 February 2016 in which he said:

Myself and inmate [CU] have been in a relationship for 12 months; this relationship has been noted by the Chaplaincy staff here at the jail for the majority of that time where we both used to attend for chaplaincy and religious services. We stopped attending Christian religious services when inmate [CU] and I were separated by jail management for discipline reasons. We now reside in separate accommodation areas.
Inmate [CU] has informed me he has completed Tertiary-level legal studies at the Australian National University (ANU), and he has previously advised me regarding my current criminal appeal against sentence in the ACT Supreme Court.

6. On 17 February 2016, I also directed the Director-General of the Justice and Community Safety Directorate, as the director-general responsible for management of the AMC, to file and serve an affidavit in response and written submissions within 14 days of receipt of the applicant's affidavit. I set the application down for hearing on 22 March 2016.

7. On 15 March 2016, the respondent filed an affidavit sworn the same date by Wayne Mark Baynham, the "Area Manager, Custodial Operations, ACT Corrective Services" of the AMC in Hume. I will refer to the content of that affidavit in detail later in these reasons.

8. At the hearing of the application, the Director-General did not seek to cross-examine the applicant on his affidavit, nor did the applicant seek to cross-examine Mr Baynham. The applicant did lead some brief evidence from detainee CU, to the effect that he has been assisting the applicant with his appeal since 2015, but that his ability to assist the applicant had been restricted by their separation within the AMC. He said that he continues to assist the applicant through written communications within the AMC, but these take about one week to be delivered. In cross-examination, detainee CU agreed that he had not completed a law degree, having transferred to a degree in politics and international affairs after he had completed approximately half of his law degree. He also agreed that the applicant has been receiving assistance from other detainees with research in preparation for his appeal.

Relevant provisions of the Human Rights Act 2004 (ACT)

9. In these proceedings, the applicant is asserting that he has a right to communicate with an advisor chosen by him for the purposes of preparing for his appeal against sentence. He identifies the source of that right as s 22(2)(b) of the HRA, which provides:

(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her.

10. Section 40B of the HRA provides that it is unlawful for a public authority to act in a way that is incompatible with a human right, or to fail to give proper consideration to a relevant human right. It has not been asserted that the Director-General, or his or her delegates at the AMC, do not fall within the definition of "public authority" found in s 40 of the HRA. A person who alleges that a public authority has acted in breach of s 40B may start proceedings in this Court against the public authority: s 40C of the HRA. In such a proceeding, this Court may grant the relief it considers appropriate, except damages: s 40C(4) of the HRA.

11. The provisions of s 28 of the HRA are also relevant:

(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:

(b) the importance of the purpose 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.

12. Both the applicant and detainee CU are "detainees" for the purposes of the Corrections Management Act 2007 (ACT) (the CMA): s 6(1) of the CMA. The main objects of the CMA are set out in s 7, as promoting public safety and the maintenance of a just society by, relevantly for present purposes:

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

13. The CMA provides that correctional services must be managed so as to achieve the main objects of the Act: s 8 of the CMA. Functions under the CMA in relation to a detainee must be exercised, inter alia, so as to respect and protect the detainee's human rights: s 9(a) of the HRA.

14. The relevant minister may declare a place to be a correctional centre: s 24(1) of the CMA. By the Corrections Management (Correctional Centres) Declaration 2009 (No. 2) (ACT), the AMC was declared a correctional centre.

15. There is, as far as I can ascertain, no provision in the CMA entitling a detainee to have contact with another detainee. It is, however, one of the minimum living conditions for correctional centres identified in s 12 of the CMA that detainees "must have reasonable opportunities to receive visits from family members, accredited people and others": s 12(1)(g). Detainees must also have reasonable opportunities to communicate with their lawyers (s 12(1)(h)). However, the term "lawyer" is defined for the purposes of all ACT legislation in Part 1 of the Dictionary to the Legislation Act 2001 (ACT) as meaning a "legal practitioner", which in turn is defined to mean a person admitted to legal practice. Detainee CU clearly does not fall within the definition of "lawyer" for the purposes of s 12(1)(h) of the CMA. The applicant has not, in these proceedings, asserted any right to have contact with detainee CU emanating from the provisions of the CMA. He has, as I understand it, applied to management at the AMC for an "inter-goal visit" with detainee CU, on the basis that detainee CU is housed in a separate area of the AMC to that in which the applicant is housed. The application was refused.

16. The Director-General is empowered by s 14 of the CMA to make corrections policies and operating procedures to facilitate the effective and efficient management of correctional services. The Director-General may also give directions in relation to a detainee: s 16 of the CMA. The Director-General may also delegate any of his or her functions to a corrections officer: s 17 of the CMA.

(a) the AMC is a maximum, medium and minimum security correctional facility catering for ACT male and female, remand and sentenced detainees;

(b) the detainee accommodation at the AMC comprises of four cell blocks, five double storey cottages, a sex offenders unit/special care centre, an Accommodation Unit comprising four wings, a Management Unit, a Crisis Support Unit, a Health Unit and a Transitional Release Unit;

(c) visits to detainees to the AMC are governed by the Corrections Management (Visits) Policy 2013 (No. 2), made under s 14(1) of the CMA;

(d) detainees are entitled to visits with legal representatives and other persons as a means to help them receive legal and other advice in relation to their custody and legal proceedings;

(e) as a rule, detainees are not entitled to visits with other detainees at the AMC or elsewhere; there is a significant risk that any connections formed or pursued in a custodial environment may involve forms of coercion or manipulation connected to offending, contraband or debts; and

(f) the only exception to the rule concerning detainee to detainee visits is where it can be established that a detainee has a particular vulnerability and the visit would directly assist the goals of rehabilitation or reintegration. Requests for such "inter-goal visits" need to be approved by the Corrections Psychological Support Services following an assessment by the High Risk Assessment Team.

18. Mr Baynham then addressed matters personal to the applicant and detainee CU. The applicant, he said, is a 38 year old man who has a long history of offending and imprisonment. His criminal history includes convictions for armed robbery, attempted armed robbery and possession of a knife without reasonable excuse. He was convicted of his first violent offence at age 17, and was first imprisoned as an adult at age 18. Mr Baynham then went on the say:

Det Miles has stated that he was involved in violent criminal behaviour on a regular basis whilst in prison and ACT Corrective Service records indicated multiple instances in which he has been found to engage in subterfuge within prison, including introduction and trading of contraband and engaging in violent and manipulative behaviours for secondary gain. He is considered to manage his image in his presentation toward corrections officers and staff.

19. Exhibited to the affidavit of Mr Baynham is an ACT Corrective Services Violence Intervention Program Suitability Report concerning the applicant. The Report noted that the applicant "articulated statements supportive of his past actions in prison, including using any means available - including manipulation, threats and violence - to obtain both primary and secondary gain". The Report also records a violent incident in the AMC involving the applicant in January 2016, in which he attempted to strike corrections officers with a broken broomstick, and that in October 2015 he was found to be in possession of two makeshift weapons in the AMC. The first was manufactured from a toothbrush and razor blades, and the second from a plastic knife with two razor blades.

20. Mr Baynham described detainee CU as an Indonesian national who was lawfully in Australia on a student visa until that visa was cancelled on 10 March 2015. He is likely to be deported to Indonesia on his release from the AMC. Mr Baynham described detainee CU as of slight built and "openly gay, which has the capacity to make him extremely vulnerable in a prison population". He reported a history of prior sexual abuse and diagnoses of anxiety and post traumatic stress disorder. Detainee CU was taken into custody at the AMC on 9 September 2015, at which time he was observed to be "at risk - very upset". It was noted that he had significant thoughts of self-harm and a history of inflicting self-harm. Shortly after his induction into the AMC, detainee CU was admitted to the Crisis Support Unit suffering from anxiety, where it was noted that he may be "highly vulnerable to being victimised because of his size and demeanour".

21. An assessment report for the Adult Sex Offender Program in the AMC, dated 23 February 2016, is exhibited to the affidavit of Mr Baynham. The Report noted that detainee CU was 23 years old and had no criminal history prior to being convicted of sexual offences in the ACT. The Report states:

More recently, [CU] reported he had entered into a same-sex, non-sexual relationship with another detainee in the AMC since his detention in custody. He reported his "partner" is bisexual, approximately "30" years of age (39). [CU] noted that they were separated despite their desire to remain together (they were initially housed in the same accommodation). He stated "when we were together, I did well mentally, and felt safe and protected", whereas now he feels unsafe, sexually harassed and discriminated against as a result of being young, Asian and gay. [CU] claimed he and his partner never engaged in sexual activity despite rumours and that they shared emotional intimacy and companionship only.

22. Letters exchanged by the applicant and detainee CU in the AMC were exhibited to Mr Baynham's affidavit. In a number of these letters detainee CU refers to a desire to be housed with the applicant in the AMC so that the applicant can protect him from abuse and predation from the other detainees.

23. Case notes concerning detainee CU were also exhibited to Mr Baynham's affidavit. A case note made by Mr Baynham on 14 November 2015, when detainee CU was removed from the AMC to be housed at Symonston, recorded detainee CU saying he wanted to be as far away from the applicant as possible. A more expansive note of this conversation is found in the case notes dated 30 November 2015:

Late note further information:

When I discussed the move to Symonston with Detainee [CU] on the 14th November in front of detainees [redacted for legal reasons] and [redacted for legal reasons]. When asked why he didn't want to be anywhere near Detainee Miles. Detainee [CU] said "He forced me" I asked are you sure about that he said yes but I won't do anything about it Just keep me as far away as you can.

Detainee [CU] has made numerous allegations against numerous detainees of sexual assault or physical assault but has never been willing to commit to a charge or formal complaint in the past.

I have contacted the AFP after the latest round of allegations but am unaware if any action is pending after they came out and interviewed him.

Thus for his own safety and to prevent any further allegations he has been placed on a Segregation order and is to be kept separate from others at this time.

Part of the Seg orders reads:

"Detainee [CU] is to remain totally segregated from other detainees for a number of reasons:

He claims to have been sexually assaulted on multiple occasions

He is a vulnerable detainee

He is a strict protection detainee but cannot mix with other Strict protections as most of his alleged offenders are strict protection detainees.

Detainee [CU] has been housed in every protected or strict protected yard / unit that is available to us and finds himself under duress/ threat in each and every area.

Detainee has also been in voluntary relationships with other detainees."

24. The case notes also record conversations between a custodial officer and the applicant and detainee CU on 20 November 2015.

CO2 Hamblin requested CM speak with [CU] whilst CM was at STRC. CO2 advised [CU] was being moved back to AMC as soon as transport could be arranged. CO2 spoke with [CU] and returned to CO2 office to speak with CM, and brought with him 3 letters addressed to [CU].

Two appear to be letters written by detainees currently accommodated at the AMC (signed off by them with their full names) and one [CU] claimed to be written by a detainee accommodated at STRC (not signed).

CM spoke with [CU] after reading all three letters at the request of CO2 Hamblin. CM told [CU] that I had read the letters at the request of CO2. When asked, [CU] stated that the interest shown by these detainees was not wanted or encouraged by him. [CU] advised CM that he has no sexual interest in anyone in the AMC, as he has come into the system as a sex offender he does not want to engage in sexual behaviours whilst in custody.

CM asked [CU] about two detainees he has been openly claimed to be his partners. [CU] advised there was no basis, other than protection, to these relationships.

CM asked [CU] about the third letter. [CU] advised this was written by a detainee accommodated at STRC, who had sexually assaulted him in the recent past. CM asked [CU] if he would like to pursue charges against the perpetrator; to which [CU] replied, he does not want the risk of retribution whilst still in prison, but will consider it once leaving custody. CM asked [CU] if he had made note of the date and circumstances for later reference, [CU] confirmed he had done this.

[CU] claimed this assault had triggered his PTSD from abuse as a child by his Uncle and that he had self harmed as a result. CM asked [CU] to show his injuries. [CU] showed CM a faint mark on his inner forearm which he claimed he had inflicted the day before. It appeared to CM that there was no break in the skin. CM asked [CU] if he is concerned about harming himself, [CU] stated if things do not change for him he is worried about self harming. [CU] denied current thoughts of suicide.

25. Later conversations between a custodial officer, the applicant and detainee CU are recorded in the case notes on 30 December 2015:

I spoke to both detainees [CU] and C Miles separate today in regards to their requests to have an intergoal visit. I explained that due to previous allegations that detainee [CU] had made in relation to his own safety that the visits would not be approved.

Detainee [CU] was not concerned at all and stated that he did not care if he was ever housed with or without detainee Miles in the area in the future. He was more concerned about strategies to keep himself busy and constructively pass the time. He said he was safe in the MU and was doing ok.

I said I would contact CPSS to organise some colouring activities and would speak to him further in a few weeks about programs and possible employment. He said he was willing to do cleaning or even mowing in the MU areas.

I spoke to detainee Miles with Officer McDermott present. Officer McDermott informed me prior to seeing detainee Miles that he was present when [CU] was interviewed by police over allegations of assault. Officer McDermott informed me that detainee [CU] had told him that the relationship between himself and Miles was not of importance to [CU] and that he said he used the relationship to keep himself safe from others.

When talking to detainees Miles and explaining that inter gaol visits would not be approved he was polite and thanked me for seeing him personally.

He seems calm but did indicate he would pursue the request further through other channels.

26. In his affidavit, Mr Baynham referred to a number of statements made by detainee CU concerning his belief that the applicant would protect him from abuse, including sexual abuse, in the AMC, and concerning his immigration status. Mr Baynham said that these statements suggested that detainee CU may be using his relationship with the applicant to achieve personal protection and an "immigration outcome". Mr Baynham also noted there were few references to legal matters in the correspondence between the applicant and detainee CU, some of which referred to the present application, and others that were very general. Mr Baynham expressed the belief that the proposal that detainee CU act as the applicant's legal advisor originated after it became clear that other avenues to arrange a meeting would be unsuccessful.

27. The submissions of the applicant were made orally on 22 March 2016, and were short and to the point. He said that he had chosen detainee CU as his legal advisor, which had been "ok" when they were housed together in the AMC, but simply could not work when they had to communicate by mail. He said that he had brought the present application because their requests for an "inter-gaol visit" had been denied.

28. The respondent provided written submissions arguing that the facts did not establish that the provisions of s 22(2)(b) of the HRA are engaged, or in the alternative, if they are engaged, any restriction of the applicant's rights under s 22(2)(b) are the result of reasonable limits which can be demonstrably justified: see s 28 of the HRA.

29. With regard to the first leg of its submission, the respondent said that in determining the meaning of an Act, the explanatory statement to the Act may be considered: s 142 of the Legislation Act 2001 (ACT). The explanatory statement to the HRA stated that the International Covenant on Civil and Political Rights (ICCPR) is the primary source for the rights contained in ss 8 - 27 of the HRA, which, of course, included the rights in s 22(2)(b). The equivalent ICCPR provision to s 22(2)(b) of the HRA, the respondent submitted, is art 14(3)(b), which provides that in "the determination of any criminal charge": every person has the right "To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing". The respondent submitted that the right in art 14(3)(b) has been interpreted by the United Nations Human Rights Committee as requiring that the accused is granted prompt access to counsel, who should be able to meet their clients in private and communicate with the accused in conditions that fully respect the confidentiality of their communication.

30. The respondent submitted that the right in art 14(3)(b), and, by extension, the right in s 22(2)(b) of the HRA is concerned with preserving the ability of an accused person to access their legal representative for the purpose of facilitating the accused person's defence in criminal proceedings. The respondent acknowledged that the use of the term "advisors" in s 22(2)(b) may encompass a right of an accused person to communicate with a person without formal legal qualifications (such as a Mackenzie friend) for the purpose of preparing their defence. However, submitted that the right to communicate with such an advisor only arises where a court has formally recognised that person as an "advisor", capable of providing material support or assistance to the accused person to prepare their defence.

31. The respondent further submitted that there is authority for the proposition that, even where an accused person is legally represented, the right expressed in s 22(2)(b) does not give an accused person an absolute right to be represented by a lawyer chosen by him or her, regardless of the wishes or availability of the lawyer: Hakimi v Legal Aid Commission (ACT) (2009) 227 FLR 462.

32. The respondent submitted that there was no evidence that detainee CU was qualified to provide legal representation or advice to the applicant for the purposes of facilitating his appeal, nor was there any evidence that detainee CU had the capacity to assist the applicant in some role such as a Mackenzie friend. The respondent further submitted that the evidence did not support the suggestion that detainee CU has provided the applicant with any assistance in the preparation of his appeal, and there was no evidence that the applicant and detainee CU have been prevented from communicating in writing about the applicant's appeal. For these reasons, the respondent said, s 22(2)(b) for the HRA was "not engaged", nor had it been breached by the respondent.

33. Turning to the second leg of the respondent's submissions, the respondent submitted that to the extent that its refusal to allow the applicant and detainee to meet face to face could be characterised as a refusal by the respondent to allow the applicant to communicate with an advisor chosen by him for the purposes of s 22(2)(b) of the HRA, this restriction was permitted by s 28 of the HRA. The respondent submitted that any such restriction was justified for the following reasons:

(1) detainee [CU] is a vulnerable detainee by reason of his previous offending history, which includes a history of PTSD, anxiety as well as concerns about his psychological, social and sexual safety while he is imprisoned;

(2) detainee [CU] has attempted to distance himself from contact with the applicant;

(3) the behaviour of both the applicant and Detainee [CU] in the AMC has historically been better when the two detainees are physically separated and have limited contact with each other; and

(4) the respondent is concerned that facilitating physical contact between the two detainees will exacerbate or trigger Detainee [CU]'s existing vulnerabilities and may put both Detainee [CU] and the applicant at risk.

34. This Court should be hesitant to interfere with the administration of the AMC. In Eastman v Besanko [2009] ACTCA 23, Dowsett J (with whom Penfold J agreed) said at [5]:

It is a serious step for a court to intervene in the way in which prisoners under sentence are dealt with in a prison. Serious security and safety issues may arise. It is not an area in which courts have any real expertise or experience.

35. This Court, nevertheless, has powers under the HRA to provide relief where public authorities act contrary to the HRA, and it should not hesitate to do so in an appropriate case. In my opinion, this is not such a case.

36. The issues that arise for determination in this application are:

(a) is detainee CU an "advisor" for the purposes of s 22(2)(b) of the HRA?;

(b) if so, has the applicant been given adequate time and facilities to communicate with detainee CU?; and

(c) is any limitation which has been placed on the applicant's rights under s 22(2)(b) justified by the provisions of s 28 of the HRA?

37. The first leg of the respondent's submissions raises the question of the proper interpretation of the term "advisor" in s 22 (2)(b), and the ancillary question whether detainee CU is an advisor in the sense that the term is used in that section. Whilst I accept that the context of the use of the term "advisor" in s 22(2)(b), and its basis in art 14(3) of the ICCPR, leads to the conclusion that communication with such a person, as articulated by s 22(2)(b), must be for the purposes of preparation for criminal proceedings, I do not accept the respondent's submission that such a person must either have legal qualifications, be formally recognised by the Court as assisting the accused, or have qualifications or skills which, in the opinion of the Court, allow the person to assist the accused. There is nothing in the terms of s 22(2)(b), or in the other materials to which I was referred, which warrants this Court imposing such qualifications on the plain language of the section. It is not for the court to tell an accused that his or her choice of advisor is a bad one, any more than it is the role of the court to make judgment about an accused person's choice of lawyer. Advice to an accused person which is necessary or desirable concerning preparation for the hearing of charges will not always be legal advice. An accused person may, for example, require financial advice or even simply practical advice about issues which may influence how the charges are to be addressed.

38. In the present case, the applicant asserts that he wishes to communicate with detainee CU for the purposes of obtaining legal advice concerning his upcoming appeal. Having heard all of the evidence, I am not satisfied that this is the case. I have come to this conclusion for the following reasons:

(a) the written communications between the applicant and detainee CU contain virtually no reference to legal issues concerning the applicant's appeal. Those letters mostly contain personal communication about their relationship and their desire to be together; and

(b) in his affidavit, the applicant gives no explanation for his choice of detainee CU as his advisor, as opposed to a qualified lawyer. The advice detainee CU could give the applicant must, of necessity, be limited by the fact that detainee CU has not completed undergraduate studies, and has no relevant experience. In the absence of such an explanation, his choice of detainee CU as an advisor on the basis of any particular skills possessed by detainee CU seems improbable.

39. In the light of this finding, it is strictly unnecessary for me to consider the second and third questions I posed at [36] above. I will nevertheless consider those questions for the sake of completeness.

40. If I were wrong in my finding that the purpose for which the applicant wants to meet with detainee CU is not for the provision of legal advice, there is a question whether the present level of contact, by mail within the AMC, is adequate. The right referred to in s 22(2)(b) is not a right to unlimited communication, or even a right to a level of communication which an accused person considers to be adequate. In my opinion, whether time or facilities provided for an accused to communicate with lawyers or advisors are "adequate" is to be determined objectively, taking into account the circumstances of the case. For example, what may be adequate for an accused person facing a charge of common assault may be inadequate for an accused facing a charge of murder; what may be adequate for an accused person without a disability may be inadequate for an accused with a disability.

41. In the present case there was no clear evidence of what advice or assistance detainee CU could provide to the applicant, so it is difficult to say that communication by mail is inadequate. I acknowledge that both the applicant and detainee CU said it was too difficult to conduct communication by mail, but these statements must be approached with caution. The applicant and detainee CU have clear personal interests in having face to face meetings, entirely unconnected to the applicant's appeal. As it is for the applicant to establish in these proceeding that the respondent is acting in such a way as to breach his right under s 22(2)(b), it is for him to prove inadequacy. There appears to have been little effort made by the parties to conduct relevant communication by mail, so that I am not satisfied that the evidence establishes that the present arrangements are inadequate.

42. Turning to the final question posed at [36] above, I am satisfied that even if I am wrong in my answers to the first two questions, the limitations which have been placed on the ability of the applicant to communicate with detainee CU are justified by the provisions of s 28 of the HRA. I would reach that conclusion for the following reasons:

(a) the applicant is much older than detainee CU, and with a much longer and more significant criminal record. His prospects for rehabilitation must be considered much poorer than those of detainee CU, so that it is reasonable to keep contact between them to an absolute minimum;

(b) detainee CU is a vulnerable detainee by reasons of this physique, his sexual orientation and the nature of the offences for which he is incarcerated;

(c) detainee CU has reported being physically abused, including sexually, during his period in the AMC;

(d) the delegate of the respondent has information that detainee CU has complained of being sexually assaulted by the applicant in the AMC. The respondent is entitled to give subsequent denials of that claim by detainee CU little weight while detainee CU remains in custody; there is also information to the effect that detainee CU has entered into the relationship with the applicant for the purpose of the applicant providing him with protection in the AMC; and

(e) there is no clear evidence that such advice or assistance as detainee CU may be able to give cannot be given by means of written communication.

I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.

Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70

At a glance

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Judgment (81 paragraphs)

Miles v Director-General of the Justice and Community Safety Directorate [2016] ACTSC 70 (13 April 2016)

Parties

Legislation Cited (4)

Cases Cited (1)