In 2018, Mr Nathan Davidson was sentenced for six years and nine months, with a non-parole period of three years and eight months. Mr Davidson was held in solitary confinement on the ‘hard side’ of the Management Unit for a total of 63 days. Mr Davidson challenged the lawfulness of the rear courtyard under the Human Rights Act 2004 (ACT) (Human Rights Act) in the ACT Supreme Court.
Read MoreThe Victorian Court of Appeal granted leave to appeal against the Supreme Court’s earlier decision that the directions at Barwon Prison that Dr Craig Minogue submit to random urine tests, and strip searches before the tests, were incompatible with his rights to privacy and to be treated with dignity while deprived of liberty in breach of section 38(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
Read MoreMr Michael Owen-D’Arcy, a person in prison confined to a maximum security unit, successfully applied for judicial review under the Judicial Review Act 1991 (Qld) and relief under the Human Rights Act 2019 (Qld) in respect of two related decisions that sought to continue the solitary confinement that had been imposed on him since 2013.
Read MoreDuring a sentencing hearing, the New South Wales District Court considered the “extremely concerning” conditions in which Mr Storm Leigh Zerafa was detained while on remand at the Parklea Correctional Centre when determining his head sentence (the maximum sentence for Mr Zerafa to serve).
Read MoreOn 29 March 2021, the Supreme Court of Victoria granted bail to a man charged with drug offences on the basis that he would likely be held in custody for three years before he was tried, and because there was immediate availability in a residential rehabilitation centre. The Court referred to the man as a potential “victim” of very lengthy delays in court processes due to COVID-19. The Court emphasised the importance of rehabilitation in addressing the root causes of offending and thereby reducing the likelihood of reoffending and, in turn, keeping the community safer. Ultimately, the Court found that the length of pre-trial custody coupled with the availability of appropriate rehabilitation options amounted to 'exceptional circumstances' sufficient to justify bail.
Read MoreThe Victorian Supreme Court overturned a decision to refuse bail to a 15 year old child. In deciding to grant a child bail, Justice Maxwell and Justice Kaye were guided by the “fundamental principle” of the youth legal system to “keep children out of custody wherever possible.” Their Honours also raised the “unacceptable” rate of over-representation of Aboriginal and Torres Strait Islander people in the criminal legal system and considered that the “courts have a duty, in cases such as this, to be conscious of the need to avoid compounding those incarceration rates.”
Read MoreThe Victorian Supreme Court has found that whilst being held in prison, a person’s right to privacy and the right to be treated with dignity while deprived of liberty under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when he was subjected to random drug and alcohol testing and a strip search before providing a urine sample for such testing. While Justice Richards found that Dr Minogue’s Charter rights were breached, Her Honour is yet to make orders on relief.
Read MoreOn 22 January 2021, the Coroner handed down his findings in the inquest into the death of Ms Cindy Leigh Miller in the Coroner’s Court of Queensland.
Ms Miller died in custody at the Ipswich Watchhouse on 21 April 2018. Ms Miller’s cause of death was ‘mixed drug toxicity’. The Coroner found that it took police at the Watchhouse well over an hour to realise that Ms Miller was unresponsive.
Read MoreOn 25 September 2020, the Victorian County Court held that use of body-worn camera footage (‘BWC footage’) obtained from police, ambulance, prison officers, and other prescribed persons under the Surveillance Devices Act 1999 (Vic) (‘the Act’) cannot be used by courts in civil proceedings.
Read MoreOn 25 August 2020, the Victorian Court of Appeal held that a person diagnosed with a personality disorder should be treated the same as any other person who seeks to rely on an impairment of mental functioning as a mitigating factor in their sentencing.
Impairment of mental functioning can be considered as a mitigating factor in a person’s sentencing in accordance with the principles from R v Verdins (2007) 16 VR 269.
Before this case, however, the principles set out in R v Verdins were not applicable to people with personality disorders because of the case of DPP v O’Neill (2015) 47 VR 395, which had previously excluded personality disorders from consideration by the courts.
Read MoreA case was brought in the Supreme Court of Victoria seeking orders to temporarily release a 52-year-old man from Port Phillip Prison in light of the serious risk of harm or death that COVID-19 would pose to him if a case of the virus arose in prison.
Read MoreOn 5 December 2017, during her train journey, Ms Day was approached by a V/Line train conductor. He called the police, Ms Day was ejected from the train and arrested for being drunk in a public place. Ms Day was taken to Castlemaine police station and detained in a police cell. Despite the requirement that she be physically checked every 30 minutes, this did not happen. The CCTV footage shows that at around 5:00pm Ms Day fell and hit her head on a concrete wall of the police cell.
Read MoreThe European Court of Human Rights has found that Russia breached human rights conventions in the prosecution and imprisonment of feminist protest band Pussy Riot.
Read MoreIn a unanimous decision, the High Court has held that section 74AAA of the Corrections Act 1986 (Vic) did not prevent the plaintiff from seeking parole after a 28 year sentence.
Read MoreThe Supreme Court of the United States has held that a guilty plea does not, by itself, bar a criminal defendant from appealing his conviction on the ground that the statute under which he was convicted violated the Constitution.
Read MoreMinogue v Dougherty [2017] VSC 724
The Victorian Supreme Court has found that a prisoner’s rights to privacy and freedom of expression under the Charter of Human Rights and Responsibilities Act 2006 (Vic) were violated when a book of philosophy addressed to him was returned to its sender, while dismissing other human rights claims about receiving and sending mail, and accessing photocopying services. While Justice John Dixon found that the plaintiff’s Charter rights were breached when the mail officer failed to turn her mind to his rights, he did not award damages as the plaintiff’s case had not made out a substantive breach of rights
Read MoreIn 2013, the European Court of Human Rights held that it is a violation of human dignity to deny life prisoners any prospect of release or review of their sentence.
Read MoreThe Victorian Court of Appeal has allowed an appeal against an indefinite custodial supervision order for an elderly man with mental and physical health issues and an intellectual impairment who was unfit to be tried for historical offences.
Read MoreThe Victorian Supreme Court has found for the third time that the Victorian government acted unlawfully with children's human rights and best interests in breach of the Charter of Human Rights and Responsibilities Act 2006 by establishing the Grevillea unit at Barwon prison as a youth justice centre and remand centre, transferring children to the Grevillea unit and using OC spray and extendable batons on children.
Read MoreFour years after its decision in Vinter, the Grand Chamber of the European Court of Human Rights has revisited the UK’s life-sentencing regime, reversing its earlier position and holding that the regime does not contravene the European Convention on Human Rights.
Read MoreThe Victorian Court of Appeal upheld a Supreme Court decision that the Victorian Government's decision to establish a youth justice centre inside the Barwon maximum security adult prison was unlawful. The Court held that the Minister and Governor in Council failed to have regard to children’s rights and Victoria’s legal obligations but overturned a finding that the Minister had acted for an improper purpose in establishing the facility.
Read MoreThe Supreme Court of Victoria has found that orders made in November 2016 establishing the Grevillea unit at Barwon Prison as a youth justice facility were invalid and of no effect because of a failure by the defendants to take into account certain relevant entitlements and duties under the Children, Youth and Families Act 2005 (Vic). Garde J held that the use of the facility as ‘emergency accommodation’ was an improper or extraneous purpose to that required for the exercise of relevant powers under the CYF Act.
Garde J also held that the defendants failed to give proper consideration to provisions of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
Read MoreThe Federal Court has ruled that the State of Queensland engaged in unlawful discrimination under section 9(1) of the Racial Discrimination Act as a result of Queensland Police Service officers' actions on Palm Island between 19 and 28 November 2004, following the death in custody of Aboriginal man Mulrunji after his arrest and confrontation with Senior Sergeant Christopher Hurley.
Representatives of the Aboriginal community on Palm Island brought the action and Justice Mortimer ruled that the following actions were racially discriminatory:
Justice Mortimer granted declaratory relief, ordered compensation to be paid and has requested further submissions on the potential for a public apology.
Read MoreMr Nasir was an Indonesian cook on a boat that brought asylum seekers to Australia. He was convicted of aggravated people smuggling under the Migration Act 1958 (Cth). Mr Nasir was detained without charge for 146 days on Christmas Island and in the Northern Territory, pursuant to an unreviewable Criminal Justice Stay Certificate. He did not appear before a judge for 177 days. At trial, Mr Nasir received the mandatory minimum sentence of five years with a three-year non-parole period pursuant to section 236B of the Migration Act, despite his undisputed minor role as a cook and non-organiser of the voyage.
Read MoreThe applicants, Mr Shahanov and Mr Palfreeman, are currently serving extended prison sentences in Bulgaria's Plovdiv and Sofia Prisons. Both applicants commenced proceedings against the Republic of Bulgaria in the European Court of Human Rights (ECHR) in 2012. The ECHR subsequently joined the proceedings due to their similarity.
Read MoreThe European Court of Human Rights (ECHR) has held that immigration detention of an LGBTI Iranian person seeking asylum in Hungary contravened article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention).
Read MoreThe Supreme Court of Queensland has set aside a decision to refuse parole to one of Australia’s most high-profile ‘high security’ prisoners, highlighting that any refusal of parole because of a prisoner’s custodial misconduct must be closely supported by evidence, rather than inferences to that effect.
Read MoreOpinion No. 54/2015 concerning Julian Assange (Sweden and the United Kingdom of Great Britain and Northern Ireland), distributed 22 January 2016
Read MoreIn Bayley v Nixon and Victoria Legal Aid, Bell J upheld the principle that every person stands equal before the law. Although Bayley had been convicted of very serious crimes, his request for legal aid should not have been rejected without proper basis. As His Honour stated at [73]: “It is not lawful to reject an application for legal assistance, including for legal assistance in relation to a criminal appeal, upon the sole ground that the applicant is a notorious and unpopular individual who has already been convicted of and sentenced for heinous crimes.”
Read MoreThe High Court of Australia has upheld the validity of laws granting police in the Northern Territory new powers of post-arrest detention for infringement notice offences. However, it adopted an interpretation of the legislation which confines their exercise.
Read MoreThe UK High Court found that a District Court judge was correct in refusing to extradite Mr Alan Giese to the United States, where he faced serious charges of sexually assaulting a teenage boy. The appeal was pursuant to section 105 of the Extradition Act 2003 (UK) and was lodged by the United States’ Government. The relevant question hinged on the application of Article 5 of the European Convention on Human Rights (ECHR) and whether the civil commitment for serious sex offenders laws in California breached this provision.
Read MoreThe European Court of Human Rights found that serious restrictions on a life prisoner’s family visits violated Article 8 of the European Convention on Human Rights. The restriction was non-rehabilitative in nature and its undifferentiated application to all life-sentence prisoners were disproportionate.
Read MoreThe High Court of England and Wales has found that the “Fast Track” appeal process, which imposed extremely short timelines for hearing appeals against asylum seeker application decisions, was ultra vires, or beyond power, as a result of structural unfairness.
Read MoreThe ACT Supreme Court has held that the Director-General did not breach the Corrections Management Act 2007 (ACT) (CM Act) and the Human Rights Act 2004 (ACT) (HR Act) for failing to provide a detainee with employment. It is a question of fact and degree in each case whether detainees' human rights require corrections authorities to provide them with employment opportunities.
Read MoreIn Victoria’s first guideline judgment the Court of Appeal stated that the availability of community correction orders (CCOs) dramatically changes the sentencing landscape. The Court of Appeal unanimously held that CCOs enable punitive and rehabilitative sentencing purposes to be served simultaneously, positing CCOs as punitive non-custodial sentences.
Read MoreIn September 2014, the Grand Chamber of the European Court of Human Rights held that the deprivation of liberty in the context of international armed conflict that is consistent with the four Geneva Conventions does not violate article 5 of the EU Convention, which seeks to safeguard liberty and security.
Read MoreThe European Court of Human Rights (ECHR) has found that the extradition by the Belgian Government of a Tunisian national, Mr Trabelsi, from Belgium to the United States (US), where he was to be prosecuted on charges of terrorist offences and liable to be sentenced to life in prison, was a violation of Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). Article 3 prohibits inhuman or degrading treatment. His right to individual petition under Article 34 of the Convention was also found to have been breached.
Read MoreThis case concerns the rights a duties of the Canterbury District Health Board (DHB) and the Departments of Corrections (Corrections) concerning the level of medical treatment they must provide a serving prisoner on a hunger strike.
Read MoreIn an important and wide-ranging judgment examining the basis and scope of UK powers to detain in Afghanistan, the UK High Court has ruled that the UK government breached Afghan law and the European Convention on Human Rights (ECHR) by detaining a suspected insurgent for a prolonged period without charge for the purpose of intelligence gathering. The Court found that the UK has no lawful authority to detain suspects beyond 96-hours before handing them over to the Afghan authorities and, in developing a detention regime that permitted individuals to be held indefinitely and without judicial oversight, it had acted in “stark violation” of its human rights obligations.
Read MoreThe Victorian Supreme Court held that the legislative regime empowering courts to make preventative detention orders for certain sexual offenders is compatible with the Charter of Human Rights and Responsibilities Act (2006) Vic.
Read MoreThe England and Wales Court of Appeal has found that exposing a prisoner who is a non-smoker to second hand smoke for seven days by forcing him to share a cell with a smoker did not amount to interference with his rights under either article 8 (the right to privacy) or article 14 (prohibition of discrimination) of the European Convention on Human Rights.
Read MoreThe European Court of Human Rights has held that the use of restraints and pepper spray on a prisoner in Estonia amounted to inhuman and degrading treatment, in violation of the European Convention on Human Rights. Pepper spray should never be used in confined spaces or against prisoners who have already been brought under control. Restraints can only be justified to avoid self harm or serious danger to other individuals or prison security.
Read MoreThe Scottish Court of Sessions recently confirmed a decision of the Lord Ordinary, and held the use of segregation did not breach a prisoner’s rights, despite a lack of strict compliance with the rules governing segregation.
Read MoreThe Supreme Court of Victoria has made its first decision on the 2013 amendments to the Bail Act 1977 (Vic) regarding conditions of bail. The Court held that it is necessary to pay careful attention to proposed bail conditions when determining whether bail should be granted and that conditions must be formulated to meet the individual circumstances of the case taking into account the applicant’s human rights.
Read MoreThe Supreme Court of Queensland recently gave reduced sentences to three accused members of Queensland Criminal Motorcycle Gangs (CMGs) due to a detention policy the Court considered to be “extremely harsh”.
Read MoreThe New Zealand Court of Appeal has found that sentencing a prisoner to 21 days cell confinement can amount to a breach of the obligation to treat detained persons with humanity and respect for their inherent dignity. The content of the obligation is to be determined not only through international jurisprudence, but by the statutory standards and domestic values and practices in New Zealand. It is not only the potential breach of such standards, but the effect that the confinement would have on the particular individual that must be considered when sentencing them to a period of cell confinement.
Read MoreAl-Gertani v Bosnia and Herzegovina, Human Rights Committee, Communication No. 1955/2010 (6 November 2013)
An Iraqi asylum-seeker was detained in Bosnia and Herzegovina on the grounds that he was a threat to national security. The United Nations Human Rights Committee found that his prolonged detention was arbitrary in breach of article 9 of the International Covenant on Civil and Political Rights, because the State party did not show it was necessary and proportionate, and because he was not provided with the reasons that he was considered a threat and was therefore unable to effectively challenge the detention.
Read MoreThe UK Court of Appeal has held that potential breaches to the right to family and privacy are not necessarily sufficient to justify a derogation from the principle of open justice in the courts. Depending on the circumstances of the case, the principle of open justice may prevail even where it is against the best interests of a child.
Read MoreTwo prisoners serving life sentences for murder claimed that their rights had been infringed by reason of their prohibition from voting in elections. The United Kingdom Supreme Court unanimously dismissed both appeals.
Read MoreMF (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 1192 (8 October 2013)
The United Kingdom Court of Appeal held that paragraphs 398, 399 and 399A of the Immigration Rules (UK) provide a complete code for establishing when a “foreign criminal” may be deported from the UK in compliance with the right to respect for private and family life under the European Convention on Human Rights.
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