Supreme Court finds that human rights not violated despite 58-day detention

Deng v Australian Capital Territory (No 3) [2022] ACTSC 262Summary 

Summary

Atem Deng (Deng) spent 58 days in custody and was released after charges were dismissed. Deng subsequently sought compensation for negligence and unlawful imprisonment. Although the Court commented that Deng “should not have spent 58 days in gaol”, and that it “was a failure of the system”, there was no remedy as the remand orders were lawful and did not constitute arbitrary detention. Deng’s  claim was ultimately dismissed.   

Facts

On 30 April 2019, Deng appeared in the Magistrates Court (Court) on criminal charges. The Court initiated a special interim family violence order (family violence order) prohibiting Deng from engaging in certain conduct “until all related charges are finalised”. On 30 August 2019, Deng was convicted and fined and “all related charges were finalised”.

Deng was later arrested and charged on 22 October 2019 for breaching the family violence order. Deng’s application for bail was refused. Deng pleaded not guilty on 12 November 2019, and he was again remanded in custody. On 19 December 2019, the charge was dismissed and Deng was released.

Deng submitted that the family violence order was revoked on 30 August 2019 and that the Court acted without, or in excess of, its jurisdiction when remanding him into custody. Deng sought compensation under section 18(7) of the Human Rights Act 2006 (ACT) (HR Act), damages for wrongful imprisonment, and damages for the loss caused by the Magistrates Court’s negligence.

Counsel for the defendants submitted that Deng’s claim could not succeed for a number of reasons, including: the Court had jurisdiction to make the remand orders; the remand orders were in force for the duration of Deng’s detention; section 18(7) of the HR Act does not provide an independent cause of action; and the defendants are not liable to compensate Deng at law.

Decision

The Supreme Court found that the family violence order had not been revoked, as a positive order had not been made by the Magistrates Court pursuant to s 88 of the Family Violence Act. Such orders are only made after considering the protected person’s needs.  Nevertheless, the restrictions on him engaging in certain conduct no longer applied as all related charges had been finalised.  Therefore there was no basis for the charge against him.

Deng argued that the Magistrates Court should have read its own file and realised there was no basis for the charge, however, the Supreme Court found ‘it has been held repeatedly that judicial officers are entitled to rely upon the information presented to them by the parties’ legal representatives’ (at [182]).  Neither the prosecution nor Deng’s legal representatives alerted the Magistrates Court to the fact that restrictions on Deng engaging in certain conduct no longer applied after 30 August 2019.

In the absence of the legal representatives alerting the Magistrates Court to the baseless nature of the charge, the information alleging Deng had committed the offence, thereby breaching the family violence order, was sufficient to enliven jurisdiction to hear and determine that charge including remanding Deng in custody.

The Court found at [168] to [171] that the remand orders did not contravene section 18 of the HR Act because it was not “capricious, unreasoned, without reasonable cause, made without reference to an adequate determining principle, or without following proper procedures established: Neilson v Attorney-General [2001] 3 NZLR 433 at 434”. Importantly, even though the family violence order did not impose prohibitions as at 22 October 2022, the remand orders were not rendered arbitrary as it was not brought to the Court’s attention by Deng’s legal representatives or the AFP on 23 October 2019 or 12 November 2019. In addition, due consideration was given to matters relevant to whether or not bail should be granted, and the remand orders were made on the grounds and in accordance with the procedures established by law.

The Supreme Court commented that “[t]he notion of detention being ‘unjust’ and therefore arbitrary is not at large” but also involves considerations of whether detention was imposed capriciously, without reasonable cause, or unreasonably.  The court found that Deng’s detention was not so imposed.

Section 18(7) of the HR Act states “[a]nyone who has been unlawfully arrested or detained has the right to compensation for the arrest of detention”. The Court found it was not necessary to resolve whether it created a cause of action because the Court had already found that the remand orders were not made arbitrarily or without, or in excess of, jurisdiction.  

In relation to negligence, the Court found that the defendants did not owe Deng a duty of care to provide information to law enforcement agencies absent a request for that information. The Court found at [288] that “Registry staff were entitled to act on the basis that the AFP would read the terms of the orders made by Magistrates and were not and could not be under any duty to interpret those orders.” The Court noted that, in the event there was a duty of care, there was no breach of that duty of care because the family violence order had not been revoked and, further, there was no evidence that the registry staff failed to take reasonable precautions.

A theoretical damages assessment was undertaken had the Court reached a different liability decision.

Deng’s application was unsuccessful, and he was ordered to pay the first and second defendants’ costs of the proceedings as agreed or assessed.

Commentary

Section 18 of the HR Act is in almost identical terms to Article 9 of the International Covenant on Civil and Political Rights, including that no-one may be arbitrarily arrested or detained, except on such grounds and in accordance with such procedure as are established by law.

In the present case it appears that procedures established by law were followed but a fundamental error was made in legal representation.  The outcome of this matter could have been different had Deng’s legal representatives informed the Court that the family violence order no longer effectively imposed restrictions on him as and from 30 August 2019.

The full case can be read here.

Authored by Barbara Casado and Esther Chen, Hall & Wilcox.