A South Sudanese refugee who was wrongly jailed due to a “failure of the system” has lost an attempt to sue the Canberra court responsible for the error.
The man, now in his 30s, had fled the war-torn nation of his birth before his brothers were made child soldiers. He lived in a Kenyan refugee camp for 10 years before coming to Australia in 2005, the ACT supreme court heard.
In 2019, police arrested him at the home of his former girlfriend in Canberra, wrongly believing he had breached the conditions of an interim family violence order.
He spent 58 days behind bars on remand. While in custody, his grandmother died, he was threatened by his cellmate – a convicted murderer – and was repeatedly strip-searched and locked down in his cell, a supreme court judgment on Wednesday stated.
When he got out, his employer allegedly stopped giving him work. He told the ACT supreme court that his employer said: “You’ve been … in prison, so, sorry, we can’t do anything.”
His arrest and imprisonment should never have happened, his lawyers told the court.
Police arrested him in October 2019 for an alleged contravention of conditions that prohibited him from seeing his former girlfriend. The conditions of the order had expired months earlier, in August 2019, when the court sentenced him for a related charge of property damage.
The courts jailed the man for contravening an order that was no longer in effect.
He sued in the supreme court, making a claim against both the ACT magistrates court and the ACT government. He alleged the magistrates court had no jurisdiction to act as it had and he sought damages for wrongful imprisonment.
He alleged the ACT government breached the territory’s Human Rights Act and the court was negligent in failing to tell police the conditions of the interim family violence order had expired.
His lawyers described the ordeal as a “farce” and said the prosecution was “baseless”. He said the magistrates court could not be allowed to “remand a defendant with impunity”.
But in Wednesday’s judgment, the ACT supreme court justice Chrissa Loukas-Karlsson found against the plaintiff.
“[The plaintiff] should not have spent 58 days in gaol,” the judge said. “That was a failure of the system. Nevertheless, the proper application of the law does not result in a remedy for [the plaintiff] in this case.”
The judgment said the court had acted within its jurisdiction in remanding the man. It was performing its “function of determining guilt” when it began to hear the charge against him and had the power to keep him in custody while it did so.
“The plaintiff would have been acquitted at hearing having identified that the prohibitions in the [interim family violence order] applied only until the related criminal charge was finalised, and that this had occurred by the time of the alleged offence,” Loukas-Karlsson said.
The supreme court judge also rejected the argument that his imprisonment was arbitrary and a contravention of the Human Rights Act.
“It is not unknown in the law for a person to be remanded in custody to answer charges which are ultimately not established,” she said. “Further it is not unknown in the law for charges to be withdrawn prior to trial due to the discovery of facts or evidence previously unknown which renders the continued prosecution unsustainable.
“This does not of itself render the remand arbitrary.”
