An Application for Bail by Isa Islam

• Jurisdiction: Australian Capital Territory
• Judge: Penfold J
• Judgment Date: 19 November 2010
• Court: Supreme Court of ACT
• Docket Number: No. SCC 340 of 2009
• Date: 19 November 2010

[2010] ACTSC 147

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Penfold J

No. SCC 340 of 2009

In the matter of an Application for Bail by Isa Islam

Counsel for the Applicant: Mr S Gill

Counsel for the Respondent: Mr J Hiscox

Counsel for the Attorney-General: Ms K Walker

Attorney-General for Victoria v The Commonwealth(1945) 71 CLR 237

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In the matter of an application for bail by Rebecca Massey[2008] ACTSC 145

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In the matter of an application for bail by Sharon Ann Stott[2010] ACTSC 114

In the matter of an application for bail by Timothy Noel Allen[2009] ACTSC 64

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Criminal Code Act 1995 (Cth)

Judiciary Act 1903 (Cth), s 68

Adoption Act 1993 (ACT), s 15

Bail Act 1992 (ACT), ss 6, 9A, 9C, 9D, 9E, 9F, 9G, 19(5), 22

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CRIMINAL LAW — bail — statutory presumptions — presumption against bail where accused charged with attempted murder — applicant must show special or exceptional circumstances favouring the grant of bail — circumstances must be unusual or uncommon — inordinate delay may be special or exceptional — delay needs to be shown to be inordinate, not simply quantified — Bail Act 1992 (ACT), s 9C.

HUMAN RIGHTS — whether special or exceptional circumstances requirement for bail applicants charged with attempted murder is compatible with Human Rights Act 2004 (ACT), s 18(5).

HUMAN RIGHTS — requirement that Territory laws be interpreted in a way compatible with human rights is not a ‘special’ interpretation rule and does not permit remedial interpretation — Human Rights Act 2004 (ACT), s 30.

HUMAN RIGHTS — requirement that Territory laws be interpreted in a way compatible with human rights — interaction with requirement to interpret Territory laws to give effect to legislative purpose — determination of whether inconsistency with human rights can be justified — whether interpretation or justification should be attempted first — Human Rights Act 2004 (ACT), ss 28, 30; Legislation Act 2001 (ACT), s 139.

STATUTORY INTERPRETATION — requirement to prefer interpretation that best achieves legislative purpose — identification of relevant legislative purpose — Legislation Act 2001 (ACT), s 139.

ORDER

THE COURT ORDERED THAT:

1. The application for bail was refused.

THE COURT DECLARES THAT:

2. Under s 32(2) of the Human Rights Act 2004 (ACT), the Court is satisfied, for the reasons set out in In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147, that s 9C of the Bail Act 1992 (ACT) is not consistent with the human right recognised in s 18(5) of the Human Rights Act, being that ‘Anyone who is awaiting trial must not be detained in custody as a general rule’.

Summary

1 This judgment sets out my reasons for refusing a bail application made by Isa Islam, who has been charged with attempted murder. It also contains a declaration that s 9C of the Bail Act 1992 (ACT) (which applies to bail applications by people charged with murder, attempted murder, and several other ACT offences carrying maximum penalties of life imprisonment) is inconsistent with the human right recognised in s 18(5) of the Human Rights Act 2004 (ACT) that ‘Anyone who is awaiting trial must not be detained in custody as a general rule’. The declaration has no effect on the operation of s 9C, which continues to operate in accordance with previous interpretations of that provision. The declaration will be brought to the attention of the Attorney-General, who will be obliged to present it to the Legislative Assembly and, at a later date, to present to the Legislative Assembly a written response to the declaration. Any change to the Bail Act will be a matter for the Legislative Assembly.

2 In the course of this judgment, I have concluded:

• (a) that s 30 of the Human Rights Act 2004 is an ‘ordinary’ interpretation provision rather than a ‘special’ provision or one providing for remedial interpretation (at [126] below);

• (b) that s 30 should be applied as part of the ordinary process of statutory interpretation, in conjunction with s 139 of the Legislation Act 2001 (ACT) and any other applicable common law or statutory principles of interpretation (at [232] to [235] below);

• (c) that the ordinary processes of statutory interpretation, including s 30, should be applied in the interpretation of a provision of ACT legislation, with the aim of finding a meaning for a provision that is both human rights-compatible and consistent with purpose, before any attempt is made under s 28 of the Human Rights Act to justify a meaning for the provision that is incompatible with human rights (at [232] to [235] below);

• (d) that the steps by which...