DPP v Alexander: Bail and Exceptional Circumstances
In 2024, the Supreme Court of the ACT handed down a decision about bail and human rights. In the decision, the court found that bail ought to have been granted to a man charged with serious offences while on bail in relation to another matter because remanding him in custody resulted in a breach of the Human Rights Act 2004. This is a significant decision for many people applying for bail on serious charges in the ACT.
The facts of DPP v Alexander
The accused was charged with serious drug offences and refused bail by a magistrate. He was held on remand in the Alexander Maconochie Centre (AMC) together with convicted prisoners, including sex offenders, rather than being accommodated separately as required by the Human Rights Act 2004 and the Corrections Management Act.
The accused’s lawyers argued that the breach of his human rights in custody amounted to a “special or exceptional circumstance” justifying bail under s 9D of the Bail Act 1992.
The DPP opposed bail on the basis of the seriousness of the offending and the risk of reoffending.
Exceptional circumstances under section 9D
Under section 19 of the Bail Act, when a person is charged with a serious offence that was allegedly committed while they were awaiting trial for another serious offence, they must not be granted bail unless special or exceptional circumstances exist that justify the grant of bail. If a court finds that special or exceptional circumstances are present, it may grant bail provided the factors in section 22 do not militate it.
Section 19 of the Human Rights Act
Section 19 of the ACT Human Rights Act states that accused persons must be held separately from convicted persons, except in exceptional circumstances. However, section 28 of the Act states that human rights may be limited where these limits can be justified in a free and democratic society.
Section 44 of the Corrections Management Act
The Corrections Management Act 2007 contains provisions relating to how detainees are to be dealt with, including that prisoners must have their human rights respected, and that persons on remand must be treated in a way that is consistent with the presumption of innocence. Section 44 of that Act states that convicted prisoners must be accommodated separately from non-convicted prisoners.
The court’s decision
The court considered whether Alexander’s treatment while on remand in the AMC amounted to special or exceptional circumstances.
The court noted that the AMC was originally built with the intention of housing remanded prisoners and sentenced prisoners separately; however, this was found to be impractical, and prisoners were routinely allocated to accommodation units based on their safety classification and not based on their status as remanded prisoners or sentenced prisoners.
The accused was accommodated in the AMC in the same manner as many other prisoners. In that sense his circumstances were not special or exceptional.
The court considered whether the failure to provide for human rights could be justified as provided for in section 28 of the Human Rights Act 2004. However, it found that section 44 of the Corrections Management Act 2007 is unequivocal in the language it uses and does not state that remanded prisoners are to be held separately from convicted prisoners only when it is practicable to do so. In this way, the provision appears to be an implementation, rather than a qualification, of the right set out in section 19 of the Human Rights Act 2004.
Therefore, Alexander’s detention together with sentenced prisoners in the AMC amounted to a breach of his human rights and the non-compliance with the human rights act was not a reasonable limit set by law. On this basis, the court found that Alexander’s detention contrary to the human rights act amounted to special circumstances within the meaning of section 9D of the Bail Act, and that the circumstances favoured the grant of bail.
Consequences of the decision
Since this decision was handed down, the ACT has developed new correctional management policies making it clearer how remanded detainees are to be accommodated and what rights remanded prisoners have. However, the full consistent implementation of the decision is not yet guaranteed, as practical constraints may mean that separation requirements are not always complied with.
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Fernanda Dahlstrom is a writer, editor and lawyer. She holds a Bachelor of Laws (Latrobe University), a Graduate Diploma in Legal Practice (College of Law), a Bachelor of Arts (The University of Melbourne) and a Master of Arts (Deakin University). Fernanda practised law for eight years, working in criminal law, child protection and domestic violence law in the Northern Territory, and in family law in Queensland.