Baggaley v Commonwealth Director of Public Prosecutions [2020] QCA 179

Date: 28 August 2020
Court: Queensland Court of Appeal
Judicial Officer: Fraser, McMurdo and Mullins JJA
Human Rights Act 2019 (Qld) Sections: ss 29(5)(b), 29(5)(c) and 29(7)
Rights Considered: Right to liberty and security of person
Other Legislation: Bail Act 1980 (Qld) ss 8(5), 9, 16(1)(a)(i), 16(2); Criminal Code (Cth) ss 11.1(1), 11.2A(1), 307.1
Keywords: Criminal Law and Corrective Services; Bail

This case concerned an appeal against a decision of Flanagan J in April 2020 to refuse the appellant’s application for bail. The appellant argued that his detention was arbitrary and unlawful and that he had the right to a trial without unreasonable delay pursuant to section 29(5)(b) of the Human Rights Act 2019 (Qld). The court found that his detention was not arbitrary and unlawful and that an appeal against the refusal of bail was not the appropriate mechanism for advancing claims regarding the lawfulness of his detention.

This case concerned an appeal against a decision of Flanagan J in April 2020 to refuse the appellant’s application for bail. The appellant argued, inter alia, that His Honour had ‘erred in law by failing to recognise that the appellant’s ongoing detention was arbitrary and unlawful’: at [28]. The Court noted that the ‘appellant’s detention is a consequence of his lawful arrest and the refusal of bail by a judicial decision made in accordance with the provisions of the Bail Act’ and, therefore, was not arbitrary or unlawful: at [28].

The appellant also cited sections 29(5)(b) and 29(5)(c) of the Human Rights Act 2019 (Qld) which state that a person arrested or detained on a criminal charge has the right to a trial without unreasonable delay, and must be released from custody if this is not complied with. The basis of this contention was a submission by the appellant that the State was not ‘providing the mechanism for him to answer the charge and be acquitted and that the current period of detention should be deemed as a “temporary stay of prosecution until the State provides jury trials”’: at [29]. The Court noted that this referred to the interim suspension of jury trials in response to the COVID-19 pandemic, and that jury trials in the Supreme Court were now being set down for hearing.

The Court further noted that these submissions were not made in the Trial Division and the appellant had not brought an application under section 29(7) of the Human Rights Act 2019 (Qld) for a declaration or order that his detention was unlawful. The Court agreed with the respondent that ‘an appeal against the refusal of bail is not the mechanism for advancing claims of that kind’ and held that it was ‘not necessary to describe the appellant’s arguments in more detail or to adjudicate upon them’: at [29]. The court ultimately dismissed the appeal.