Date: 9 April 2020
Court: Supreme Court of Queensland
Judicial Officer: Davis J
HRA Sections: ss 4, 5, 9, 30, Part 3, Divisions 1, 2 and 4
Rights Considered: right to humane treatment when deprived of liberty
Other Legislation: Bail Act 1980 (Qld), ss 7, 8, 10, 13, 15, 16; Bail Act 1977 (Vic); Bail Act 2002 (ACT); Bail Act 2013 (NSW), s 18; Corrective Services Act 2006 (Qld), s 263; Criminal Code Act 1899 (Qld) ss 2, 7(1)(a), 7(1)(b), 7(1)(c), 8, 293, 300, 302, 303, 305, 317(1), 596; Public Health Act 2005 (Qld), s 362B

Keywords: Prisoner; Bail

This case concerned an application for bail for charges of murder and grievous bodily harm. The court briefly mentioned the rights of detained persons and the obligations the Human Rights Act 2019 (Qld) casts on the three branches of government, but there was no in-depth discussion as a human rights argument was not made by the applicant.

This case concerned an applicant who was remanded in custody and waiting to be tried for murder and grievous bodily harm. The primary issues concerned the granting of bail and whether or not the applicant was an ‘unacceptable risk’ to society.

The Human Rights Act 2019 (Qld) was  mentioned briefly by Davis J, although he did not consider the human rights issues in depth because the applicant did not rely upon the Act in his arguments. At [67] His Honour stated: ‘there was no reliance made by Mr. East QC upon the Human Rights Act 2019 (Qld), although there are provisions in that Act relevant to the treatment of persons detained.’

His Honour went on to say, at [68]: ‘As there was no argument on the impact of the Human Rights Act 2019 (Qld), I will simply mention in passing that the Act primarily casts obligations upon the executive and the parliament and only impacts the exercise of judicial power in limited ways. Obligations under the Human Rights Act may fall upon the Chief Executive. Whether any alleged failure by the Chief Executive to honour his obligations under the Human Rights Act (which is not alleged here) is a matter relevant to bail is a matter that need not be considered on this application.’

The court found that the applicant was not an unacceptable risk in relation to the matters identified in s 16(1) of the Bail Act 1980 (Qld): at [85]. The applicant discharged the onus cast upon him by s 16(3) of the Bail Act 1980 (Qld) by proving that his continued detention in custody was not justified: at [85]. For these reasons, the Court granted the applicant bail under strict conditions.

Visit the reported judgement: Re JMT [2020] QSC 72