Court Control In Relation To Detainees And Prisoners
CHINA – AUSTRALIA HUMAN RIGHTS
TECHNICAL COOPERATION PROGRAMME:
WORKSHOP ON PRISONERS AND DETAINEES:
XIAN MAY 2004
COURT CONTROL IN RELATION TO DETAINEES AND PRISONERS
JUSTICE WOOD
CHIEF JUDGE
COMMON LAW DIVISION
SUPREME COURT OF NEW SOUTH WALES
The courts, and more particularly the Supreme Court, have a role in relation to the detention of suspects, and the imprisonment of convicted offenders, in several ways.
(a) Investigation
The courts have power, by warrant, to:
(i) permit an extension of the period allowed to detain a suspect for interrogation;
(ii) require a suspect to submit to certain forensic investigative procedures, including intrusive procedures, and internal searches (for drugs);
(iii) permit the use of listening devices and telephone intercepts;
(iv) to carry out searches of premises.
(b) Arrest
Once a suspect has been arrested and charged, the courts have the responsibility to determine whether he or she should be held in custody at a remand centre, or released upon conditional bail; and to review those decisions pending trial.
(c) At Trial
Where evidence has been unlawfully obtained, for example through an unauthorised detention, or by a procedure during detention that does not comply with the regime for lawful investigation, the courts can disallow its use a trial.
Decisions as to whether a person should be detained in custody during a trial; and whether, upon conviction, he or she should be sentenced to imprisonment or to some other form of detention, are made by the courts.
The alternatives in relation to sentence are:
i) Full time detention;
ii) Periodic detention (that is part time detention)
iii) Home detention;
iv) Suspended sentence of imprisonment;
v) Drug Court programme
vi) Community Service
vii) Bond to be of good behaviour;
viii) Monetary fines.
(d) Post Conviction
There are again several ways in which the Supreme Court can intervene to terminate a sentence of imprisonment, or to require a variation in relation to the way in which it is being served, or to remedy an injustice occurring in the course of the service of the sentence:
(i) Appeal Against Conviction or Sentence
The Supreme Court has the power to quash or vary any sentence imposed by a trial judge for error. Additionally, there is a procedure by which it can conduct a post conviction review leading to a sentence being terminated, where fresh evidence is discovered that would raise a doubt as to the conviction. An independent DNA Review Panel is in the process of being established which will have power to investigate, and to refer to the Court, convictions, where fresh DNA evidence, or analysis, raises a doubt as to the original conviction.
(ii) Parole Review
All prisoners other than those serving life sentences (or fixed terms of imprisonment) have an entitlement or expectation of being released from prison, subject to ongoing supervision by the Probation and Parole Service, after they have completed the minimum term of imprisonment which the Court set when they were sentenced.
Whether or not they are released on parole or probation depends generally upon the way in which they have behaved while in prison, and whether or not they have responded to rehabilitation programs. Their release, and the revocation of their parole and return to prison, if they reoffend, depends upon the decision of the Parole Board.
The Supreme Court (Court of Criminal Appeal) has a statutory power to review decisions of the Parole Board refusing parole, where it can be shown that the decision was made on the basis of false, misleading or irrelevant information.
It also has a statutory power of review in relation to decisions of the Parole Board revoking parole, periodic detention or home detention orders, where it can similarly be shown that the decision was made on the basis of false, misleading or irrelevant information.
(iii) Disciplinary and Management Decisions
Many administrative decisions are made by correctional authorities concerning, for example, the discipline and management of prisoners, their classification, and their entitlement to certain privileges. Formerly it was considered that the courts should not intervene in relation to these decisions, since it was considered that to do so might promote prisoner unrest or undermine the authority of the prison management, or that it might threaten the separation of powers between the court and the executive, or that it might open the floodgates to proceedings in the courts.
It is now accepted that the Supreme Court has a limited power to review decisions of this kind upon administrative law principles.
The circumstances in which it can do so vary according to the nature and significance of the decision, but intervention will, in general terms, depend upon whether it can be shown that the decision was made without power, or was made in bad faith, or for an improper purpose, or involved a denial of natural justice, or resulted in a disproportionate interference with the prisoner’s rights and legitimate expectations or was manifestly unreasonable.
Failure to follow due process or to respect the requirements of natural justice in relation to an application of prison rules that leads to a loss of privilege or amenities, might also be reviewed by the Court in the exercise of this jurisdiction.
The exercise of this power of review is, however, relatively rare, it being recognised that there has to be a considerable area of discretion reserved to correctional authorities in relation to internal discipline, and particularly in relation to purely administrative issues.
Deference has also been paid to the special expertise which is possessed by prison administrators in managing correctional centres and their inmates, and to the need for them to guarantee the security of the prisoners as well as the maintenance of prison order.
Intervention will normally be confined to decisions that relate to individual rights, particularly those that might affect the prisoner’s potential release. Intervention is unlikely in relation to decisions concerning general managerial or operational aspects of the prison order.
The consequence is that individual complaints are more likely to be dealt with internally, or by reference to the Official Visitor or Ombudsman, that is administratively, rather than judicially.
(iv) Civil Claims for Damages
Where a prisoner suffers injuries, or dies, as a result of any form of unlawful assault by a correctional services officer, or as a result of the breach of duty which is owed to exercise reasonable care for his safety while in custody, the courts can make an order for monetary damages to be paid to him, or to his dependent family.
There are some legislative qualifications, which either exclude the entitlement to damages, or limit the extent of the entitlement (in the case of mentally ill prisoners), where the injury or death of the person occurred as a result of conduct by the prisoner, which amounted to a serious offence, and which contributed materially to his death or injury. Monetary damages can also be awarded by the courts for false imprisonment.
(v) Gaol Delivery and Habeas Corpus
The Supreme Court has a general power to order the release of any person who is being held in custody after completion of his sentence, or who, for any reason, is unlawfully held in custody. In that regard, Australian law does not permit offenders to be held in custody after completion of their sentence in order to protect the community from further offending.
(vi) Mentally ill Offenders
A specific regime exist in relation to offenders who are not mentally fit to stand trial, or who are found not guilty at trial by reason of the mental illness.
In such cases the court makes an order which requires that they be detained, as forensic patients, in such mental health institution or corrections centre as may be directed. They then become subject to regular review by the Mental Health Review Tribunal, which may recommend their release when satisfied that their safety, and that of any member of the public, would not be seriously endangered by their release. If necessary release may be ordered upon conditions for ongoing treatment, medication or supervision.
(e) General Oversight
Provision exists for each correctional centre to have a Visiting Magistrate, with power to visit that centre, to deal with offences committed by prisoners, and, at the direction of the Minister, to conduct an inquiry into any matter that relates to the security, good order, control or management of the centre.
Judges are generally permitted to visit and examines such centres as they see fit, and are free to submit reports on any matters which might appear, on such a visit, to raise a concern.
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