The
facts as presented
2.1 On
29 August 1990, the author was convicted in the Supreme Court of
Western Australia for raping and sexually assaulting a psychiatric
patient in his care in a psychiatric hospital in Western Australia
(WA) in 1989 (the WA offences). He was sentenced to nine years in
prison. The earliest date the author would be eligible for consideration
for parole was 30 November 1994.
2.2 In
the course of investigating those offences, the police discovered
videotape and photographic evidence in the author's home of further
offences involving the author raping and ten times indecently dealing
with a seven year old girl and three times indecently dealing with
her ten year old sister in Queensland in 1985 ('the Queensland offences').
The author states that the mother of the minors was aware of that
conduct at the time, but subsequently declined to lay charges against
the author as he had moved to WA.
2.3 On
31 July 1990, while the author was still on remand for the WA
offences, the police attempted to interview the author about
the video tape and photographic evidence of the Queensland offences.
The police informed the author of the contents of the videotape,
the victims' identity and that a complaint had been received by
police. On the advice of his solicitor, the author refused to take
part in the interview. During the interview, police told the author
that an application to extradite him to Queensland would be made
upon his release from prison.
2.4 At
a WA Sentence Planning Conference held in October 1990, the author
asked and was told that there were no warrants for his arrest in
any State of Australia. On 6 March 1991, the Perth District Court
sentenced the author to one year's imprisonment, to be served cumulatively
upon his nine year sentence, for four offences of breaking and entering
various police stations in Western Australia in attempts to obtain
or destroy videotape and photographic evidence of the Queensland
offences.
2.5 In
September 1991, at another WA Sentence Planning Conference, the
author again asked and was told that there were no warrants for
his arrest in any State of Australia. On 14 October 1992, the author
was shown a copy of a letter dated 13 August 1992 from the Queensland
police to the Corrective Services department at Perth, indicating
that a warrant had been issued against the author on a charge of
rape committed in Queensland in 1985. The letter also indicated
that extradition proceedings would be commenced upon the author's
release from prison. The warrant, which had been prepared in August
1992, was unsigned due to human error and therefore invalid as a
matter of law.
2.6 The
author's counsel requested a copy of the warrant and full details
of all the charges against the author. In January, a copy of a properly
issued warrant was provided, dated 7 January 1993, against the author
for the offence of rape of a female minor in Queensland in 1985.
No factual circumstances were set out in the warrant, and nor were
any other offences mentioned.
2.7 On
5 April 1993, the author made an written request to the competent
authorities for his interstate transfer to Queensland to face the
Queensland charge. On 23 August 1993, the author commenced a Sex
Offender Treatment Program in WA. On 14 March and 15 June
1994, the respective authorities in WA and Queensland approved the
author's transfer to Queensland. On 30 June 1994, the author completed
the treatment program.
2.8 On
15 September 1994, the Freemantle Court of Petty Sessions ordered
the transfer of the author to Queensland. The statutory period for
a review of that decision expired on 29 September 1994. The following
day, on 30 September 1994, the author formally purported to withdraw
his application for an interstate transfer on the grounds of delay.
On 17 October 1994, the author was transferred to Queensland, and,
upon arrival, arrested and charged with rape of a female minor and
additionally thirteen charges of indecent dealing. On 18 October,
the author was brought before the Brisbane Magistrates Court in
relation to the charges of the previous day, and proceedings were
adjourned for hearing of committal proceedings on 1 December 1994.
2.9 On
1 December 1994, the author appeared in the Brisbane Magistrates
Court and was committed to stand trial in relation to the charges
of 17 October 1994. On 8 May 1995, the author pleaded guilty to
one count of rape and thirteen counts of indecent dealing with circumstances
of aggravation in the Brisbane District Court. On 7 July 1995, the
author was sentenced to five years' imprisonment for the rape, eighteen
months imprisonment for each of six counts of indecent dealing and
nine months imprisonment of for each of seven counts of indecent
dealing, all sentences to be served concurrently. The district court
made a recommendation that the author be eligible for consideration
for parole after two years imprisonment. The term of imprisonment
commenced immediately.
2.10 On
20 July 1995, the author submitted a written application to transfer
back to WA on order to be closer to his family. Due to a pending
appeal by the prosecution against sentence inter alia on
the grounds of manifest inadequacy, the application could not be
considered. On 2 April 1996, the author submitted his communication
to the Human Rights Committee. On 11 June 1996, the Queensland Court
of Appeal increased the sentence on the count of rape to eleven
years, while allowing the other concurrent sentences for indecent
dealing to stand. The revised sentence was backdated to begin from
7 July 1995, and had the result that five years of the sentences
originally imposed for the WA offences would be served concurrently.
The court recommended that the author be considered for parole after
29 August 1998.
2.11 On
12 June 1996, the author again submitted a written application to
transfer back to WA on welfare grounds. On 13 August 1996, the author
commenced a Queensland Sex Offender Treatment Program. On 7 October
1997, the author completed the Queensland treatment program and
received the necessary consents for inter-state transfer. On 23
April 1998, the author was transferred inter-state from Queensland
back to prison in WA.
2.12 On
31 July and 18 August 1998, the WA Parole Board deferred consideration
of the author's case, seeking further information. On 11 September
1998, the Parole Board denied parole due to the risk of re-offending
due to the entrenched history of serious sexual offending and limited
gains from the sex offender treatment programs. On 13 November 1998,
following a further psychological report, and again on 8 April 1999
and 28 April 2000 the Parole Board reconsidered the author's application
for parole but denied it. Presently, the author remains in custody,
with the Parole Board due to re-examine his case in April 2001.
The
complaint
3.1 The
author contends that, in violation of article 2, paragraphs 3(a)
and (c), he was denied an effective remedy to the violations he
allegedly sustained, and alleges in particular that his performance
in the treatment programs was improperly evaluated and presented
with the result that the Parole Board has denied parole.
3.2 The
author contends that the delays in bringing him to trial for the
Queensland offences violated his rights under articles 9, paragraphs
1, 2 and 3, and 14, paragraphs 3(a) and (c). He argues that the
police knew of the offences since 1990, that he made repeated attempts
to determine whether he was facing charges, that a valid warrant
was only issued in January 1993 and for one offence only, and that
thirteen further charges were added in October 1994.
3.3 The
author alleges that his transfer to Queensland was deliberately
delayed until shortly before he was eligible for consideration for
parole. That conduct, combined with transferring him to Queensland
after his request for a transfer had been withdrawn, meant that
his detention in Queensland up to the time of sentencing was legally
considered as a continuation of his WA sentence. This would not
have been the case if he had been granted parole before facing the
charges in Queensland. Accordingly, he considers that his detention
was effectively extended by nine months, being the period between
the transfer and the beginning of his sentence for the Queensland
offences. The author contends that this constituted arbitrary detention
under Article 9, paragraph 1.
3.4 The
author also contends that the delay first in charging him, then
in transferring him to Queensland and in not transferring him back
to Western Australia to be close to his family immediately after
the Queensland trial was oppressive and led to undue emotional and
psychological trauma, including depression and suicidal tendencies,
along with insomnia, hair loss and exposure to chemotherapy. He
claims that this amounts to a violation of article 7 of the Covenant.
3.5 The
author states that while in prison he has followed intensive therapy
and that the psychological reports show that he is unlikely to re-offend.
The author argues that further imprisonment, after he was ready
to be rehabilitated and reintegrated in society, for offences that
happened ten years ago, is detrimental to his rehabilitation and
has led to heavy emotional and psychological stress. He thus
claims a violation of article 10, paragraph 3, of the Covenant.
3.6 Finally,
the author states that due to new legislation in Queensland, his
sentence of 11 years' imprisonment with a three year non-parole
period has been altered to an eight year and eight month
non-parole period. He considers that now would make him
eligible for release at the earliest in April 2004. The author
claims that this constitutes a violation of article 15.
The
State party's observations with regard to the admissibility of the
communication
4.1 In
terms of the alleged breaches of article 2, the State party understands
that those rights to remedy are accessory in nature and apply consequent
to a violation of a specific right in the Covenant. As the State
party does not view any other violation as having been established,
it argues that the author has failed to substantiate a claim of
violation of article 2.
4.2 In
terms of the alleged breaches of articles 7 and 10, paragraph 1,
the State party refers to the Committee's jurisprudence for the
proposition that for punishment to violate the Covenant it must
humiliate, debase and in any event entail elements beyond the mere
deprivation of liberty. The State party argues that at all points
the author was lawfully deprived of his liberty and any mental suffering
was ancillary to that. The State party states that, contrary to
the author's allegations, clinical notes for the WA imprisonment
show only periodic anxiety and mild depression from time to time,
rather than chemotherapy, hair loss, insomnia or generally extreme
psychological or emotional trauma. Similarly, during the Queensland
imprisonment, a review showed possible depression as the only medical
difficulty, and that pharmacological treatment was unnecessary.
Accordingly, the State party considers this portion of the claim
does not raise an issue in terms of the rights claimed, and is furthermore
insufficiently substantiated. It therefore should be rejected as
inadmissible.
4.3 In
terms of the alleged violations of article 9, the State party records
its understanding that the concept of 'arbitrariness' in paragraph
1 encompasses elements of inappropriateness, injustice and lack
of predictability. It also argues that the right in paragraph 2
to be promptly informed of charges relates only to the stage of
arrest. Furthermore, the requirement that a person arrested or detained
on criminal charges is promptly brought before a judge in paragraph
3 relates again to the time a person is arrested or detained on
those particular charges.
4.4 The
State party notes that, under its law, a person may be transferred
from one State to another to face criminal charges once a person
has been released from prison finally or on parole ('extradition')
or alternatively at any time when a prisoner requests a transfer
('interstate transfer'). The State party notes that in July 1990
the author was informed that an application to extradite him to
face the Queensland charges would be made upon his release from
prison, but the author refused to answer questions concerning the
offences. The State party observes that because the author was not
due for consideration for parole until November 1994 at the earliest,
the State party did not consider there was urgency in executing
a warrant for the author's arrest. An invalid warrant was obtained
in August 1992, and then a valid one in January 1993. At that point,
in April 1993, the author requested to be transferred to Queensland
to face the charges. Following the obtaining of the relevant authorities'
consent in both States, a court hearing was held on whether a transfer
order should be made.
4.5 The
State party notes that its law provides that the court is not to
make such an order, if on application of the prisoner, it is satisfied
that it would be harsh or oppressive or not in the interests of
justice for the transfer to proceed. The author had legal representation
in this case, and the option to seek a review for a period of 14
days. Upon the expiry of that period, the Court's order was final
and the author's withdrawal of his transfer request thereafter had
no legal effect.
4.6 The
State party accepts that the original warrant only noted one charge,
and that the author was arrested on twelve more minor charges at
the time of his arrival in Queensland. The State party states however
that it is not unusual to issue a warrant on one charge, in this
case the most serious one, while other charges are still being considered
on the basis of what evidence might be available at that time. On
the day the author arrived in Queensland in October 1994, the author
was served with all thirteen warrants. The next day he was brought
before a Court. In December 1994, a preliminary hearing was held
in December 1994 and a full hearing in March 1995. Finally, the
State party notes that in the author's case, as usually occurs,
the new sentence handed in Queensland was and is being served concurrently
with the original sentence.
4.7 In
relation to parole, the State party states that the WA Parole Board
never had the question of the author's parole referred to it because
the author had applied for the interstate transfer to Queensland.
In any event, there is no automatic entitlement to parole at the
time the question falls for consideration. An assessment is carefully
made at the time as to the individual's progress and risk to the
community at that time.
4.8 On
the basis of the above facts, the State party contends that the
author has no claim in relation to any of the three paragraphs of
article 9. The author could validly have been detained under the
original court sentence until 28 August 2000. He had not been considered
for parole at the time of his transfer, much less received parole,
and accordingly cannot claim that he was arbitrarily detained. Nor
is there any evidence of deliberate delay at any point. As soon
as the author was arrested, he was informed of the charges and promptly
brought before a judge and then tried, as the Covenant requires.
These allegations have not been substantiated by the author, and
therefore also should be dismissed as inadmissible.
4.9 In
terms of the author's allegation that his treatment has not had
as its essential aim of his reformation and social rehabilitation,
the State party observes that its penitentiary system has these
aims, with a purpose to establish in prisoners the will to lead
law-abiding and self-supporting lives after their release and to
assist them to become fit to do so. Among a variety of other programs,
the Sex Offenders Treatment Programs in both WA and Queensland are
aimed at rehabilitating person such as the author and reducing the
frequency and extent of re-offending. The author unsuccessfully
undertook the WA program, which lead to him then completing the
self-paced Queensland program before his transfer back to WA. The
possibility of interstate transfer on welfare grounds, as was requested
by and granted to the author, is another dimension of a system designed
to reform and rehabilitate to the extent possible.
4.10 The
State party observes that both the Queensland District Court and
Supreme Court found that the author did not successfully complete
the WA program. At all times this issue was before the courts, the
author was legally represented and had the opportunity to cross-examine.
Accordingly, this cannot found an argument for early release. The
State party respectfully submits that the question of successful
completion, or otherwise, of the program is a question of fact beyond
the Committee's role. The State party further notes that it was
not unreasonable to require the author to finish the Queensland
program, in view of his earlier failure, before consideration was
given to his transfer back to Queensland. The State party's submissions
predate the evaluation of the author's performance in the Queensland
program by the Parole Board and others. The State party accordingly
argues that the author has not substantiated his claim in this regard
and it should be dismissed as inadmissible.
4.11 In
terms of the author's contentions that his rights under article
14 were violated, the State party records the Committee's General
Comment on article 14 sets out that the right to be promptly informed
of a charge requires that information to be given as soon as the
charge is first made by the competent authority, that is, when the
competent authority decides to take procedural steps against a suspected
person or publicly names him as such. The European Court of Human
Rights also has interpreted analogous due process rights to begin
with the charge, or official notification given to an individual
of an allegation that he has committed a criminal offence.
4.12 The
State party argues, in relation to article 14, paragraph 3(a), that
the facts disclose a reasonable and proper effort being made to
inform the author at all stages of investigation of the nature and
cause of any charges against him. The author was aware since 1990
that the 1985 Queensland offences were being investigated. The author
was made aware of the nature of the charges at the time he was first
publicly named as being suspected of having committed those crimes,
that is on 7 January 1993 when the warrant for his arrest on one
charge of rape was issued. That was the most serious of the offences
for which the author would later stand trial. The State party accordingly
submits that this allegation has not been substantiated by the author
and should be dismissed as inadmissible.
4.13 Concerning
the author's contention of a violation of article 14, paragraph
3(c), the State party rehearses the facts of the case. The State
party emphasises that the author refused to co-operate with the
police investigation in 1990. The earliest date the author could
have been extradited upon conclusion of sentence was 11 November
1994, but a warrant was issued in January 1993. After the author's
request for transfer in May 1993, the author completed a treatment
program, gained the necessary consents and was transferred in October
1994. He was immediately arrested and charged, and brought before
a Court the next day. Over the next six weeks the author was provided
legal counsel to prepare his defence. In December 1994, the author
was committed to stand trial in June 1995, but in May 1995 the author
plead guilty on all charges. In July 1995, he was sentenced, with
the appeal being disposed of in July 1996.
4.14 The
State party submits that the conduct of the authorities was determined
by law, effected according to law and without irregularities, and
did not contribute to any unnecessary delay in the trial of the
author. The State party submits the time from being charged on 17
October 1994 to being sentenced on 7 July 1995, with the sentence
being increased on appeal on 11 June 1996, is not an unreasonable
time in the circumstances of this communication.
4.15 Finally,
in relation to article 15, the State party points out that recent
amendments to the Queensland sentencing regime are prospective only
and do not affect the author. Accordingly, he has failed to substantiate
a claim under article 15, and that portion should be dismissed as
inadmissible.
Author's
response to the State party's observations with regard to the admissibility
of the communication
5.1 With
respect to article 2, the author repeats allegations of deliberate
concealment and fabrication by the authorities of his performance
in the treatment program, and thus submits that a case has been
made out.
5.2 In
relation to his claim under article 7, the author argues that deliberately
false reports have increased his author's sentences beyond what
was warranted. Taken with the delay in trial, the author submits
a breach of article 7 is clear.
5.3 Regarding
article 9, the author claims that he was not told at the interview
in 1990 that charges would be laid upon his release, but only that
the police would return for him in 10 years. He was not informed
until 1992 that the Queensland charges were outstanding. The author
states the Queensland police should not deliberately waited two
years before informing the WA authorities of the charges. The author
alleges that the police actions deprived him of parole, and accordingly
his liberty.
5.4 The
author argues that there is no justification for the delay of almost
5 years between the police investigations and charging him on the
Queensland offences. Had the charges been laid earlier, the author
states he would have been able to deal with the charges at an earlier
point of his imprisonment. The author goes on to object in detail
to the sentences imposed on him, and calculates that his claimed
successful conclusion of the treatment program would have resulted
in parole being granted.
5.5 In
terms of article 14, the author states again that at the 1990 interview
no charges were mentioned, and there was no reference by the police
to specific incidents. He notes that before 1992 he had been assured
that no charges or extraditions were pending against him. The delays
in processing the transfer to Queensland also unnecessarily prolonged
resolution of the Queensland charges.
5.6 The
author accepts the State party's submissions in respect to article
15 and withdraws that portion of his claim.
Issues
and proceedings before the Committee
6.1 Before
considering any claims contained in a communication, the Human Rights
Committee must, in accordance with article 87 of its rules of procedure,
decide whether or not it is admissible under the Optional Protocol
to the Covenant.
6.2 With
respect to the author's contention that the authorities have inflicted
torture or cruel, inhuman and degrading treatment contrary to article
7 and otherwise ill-treated the author contrary to article 10, paragraph
1, the Committee refers to its jurisprudence that a claim by a prisoner
pursuant to these articles must demonstrate an additional exacerbating
factor beyond the usual incidents of detention. In the present case,
the author has failed to demonstrate, for the purposes of admissibility,
that he has been treated in any way which departs from the normal
treatment accorded a prisoner. This part of the communication
is accordingly inadmissible under article 2 of the Optional Protocol.
6.3 In
relation to the author's claims under article 9, paragraphs 1, 2
and 3, the Committee considers that the facts clearly demonstrate
that as soon as the author was arrested on the Queensland offences,
he was informed of the charges, brought before a court and then
tried within a reasonable time thereafter. The author has accordingly
failed to substantiate, for the purposes of admissibility, this
portion of the claim, which is inadmissible under article 2 of the
Optional Protocol.
6.4 Concerning
the author's claims under article 10, paragraph 3, that the application
of the penitentiary system in the author's case has not had as its
essential aim his social rehabilitation and reformation, the Committee
notes the variety of programmes and mechanisms in place in the State
party's penitentiary system that are geared towards this end. The
Committee considers that the author has failed to substantiate that
the State party's assessments of the author's reformative progress,
and of the consequences which ought to flow from that, raise issues
of compliance with the requirements of article 10, paragraph 3.
Accordingly, the Committee is of the view that the author has
failed to substantiate, for the purposes of admissibility, his claim
of a violation of article 10, paragraph 3, and this part
of the communication is therefore inadmissible under article 2 of
the Optional Protocol.
6.5
In terms of the author's allegations under article 14, paragraphs
3(a) and (c), the Committee observes that the State party's law
precluded the prisoner's transfer for trial before his release,
which could have come no sooner than November 1994, unless a request
for interstate transfer and appropriate court order was made. The
author's request for transfer made after receiving notice of the
most serious rape charge in 1993 was accommodated pursuant to an
appropriate court order. Upon arrival, he was charged with
the main offence and subsidiary offences, tried and convicted
within appropriate time. The Committee considers that these
facts fail to substantiate, for the purposes of admissibility, a
claim under article 14, and this portion of the communication is
therefore inadmissible under article 2 of the Optional Protocol.
6.6 With
respect to the author's claims under article 2, the Committee considers
that the author's contentions in this regard do not raise issues
additional to those considered under the other articles which have
been invoked, and that those claims have not been substantiated
sufficiently for purposes of admissibility.
6.7 Regarding
the author's contended violation of Article 15, the Committee notes
that the author, in his response to the State party's submissions,
retracts this portion of the communication and is not required to
consider it further (para 5.6 above).
7 The Committee
therefore decides:
(a) that
the communication is inadmissible under article 2 of the Optional
Protocol;
(b) that
this decision shall be transmitted to the State party and to the
author.
Adopted
in English, French and Spanish, the English text being the original
version. Subsequently to be translated also in Arabic, Chinese and
Russian as part of the Committee´s annual report to the General
Assembly.
_________
* The following members of the Committee participated in the examination
of the present communication: Mr. Abdelfattah Amor, Mr. Nisuke Ando,
Mr. Prafullachandra Natwarlal Bhagwati, Ms. Christine Chanet, Mr.
Louis Henkin, Mr. Eckart Klein, Mr. David Kretzmer, Mr. Rajsoomer
Lallah, Mr. Rafael Rivas Posada, Sir Nigel Rodley, Mr. Martin Scheinin,
Mr. Hipólito Solari Yrigoyen, Mr. Ahmed Tawfick Khalil, Mr. Patrick
Vella, Mr. Maxwell Yalden. Under rule 85 of the Committee´s rules
of procedure, Mr. Ivan Shearer did not participate in the examination
of the case.
