R v Forsyth [2013] ACTSC 179

4. Before considering the arguments made in this case, it is necessary to set out the progress of the matter to the day set down for trial.

5. The following chronology is based on the affidavits provided by a member of the Office of the Director of Public Prosecutions (DPP) and by Mr Forsyth's solicitor, with other relevant information added that has been largely drawn from material on the court file but also from other publicly available material.

Steven Patafta is assaulted, and suffers actual bodily harm.

Following a telephone conversation between Mr Forsyth and Constable Egan of the Australian Federal Police, Mr Forsyth attends the Woden Police Station together with his lawyer, Kamy Saeedi.

It is agreed that since Mr Forsyth is a resident of Western Australia, the summons can be served on Mr Saeedi.

A summons returnable on 26 February 2008 is issued out of the ACT Magistrates Court in connection with the alleged assault on Mr Patafta.

Mr Forsyth fails to appear in the ACT Magistrates Court. The Magistrate notes that it appeared that the summons had been left at Mr Saeedi's office and might therefore not have come to Mr Forsyth's attention.

Subsequent enquiries by DPP reveal the 21 November 2007 agreement that the summons could be served on Mr Saeedi.

Mr Forsyth is represented in the Magistrates Court by Tracey Mylecharane, a partner in Mr Saeedi's practice.

A case management hearing is set down for 8 May 2008.

Mr Saeedi appears with Mr Forsyth in the Magistrates Court.

During the taking of prosecution evidence, Mr Forsyth withdraws his consent to summary jurisdiction, and the remainder of the prosecution brief is tendered by consent.

Magistrate Lalor commits Mr Forsyth to the Supreme Court for trial.

• the prosecutor to file the indictment and other documents by 18 December 2008, and

• Mr Forsyth to file his documents in response (including the completed pre-trial questionnaire) by 15 January 2009.

The indictment and other prosecution documents are filed in the Supreme Court.

Mr Forsyth has not filed the completed pre-trial questionnaire.

Mr Saeedi advises the Registrar that there might or might not be a pre-trial application.

A further pre-arraignment conference is set for 10 June 2009.

Ms Mylecharane, and Mr Saeedi by telephone, appear on behalf of Mr Forsyth.

Mr Forsyth has still not filed the completed pre-trial questionnaire.

A further pre-arraignment conference is set for 11 June 2009.

Mr Forsyth provides a completed copy of the pre-trial questionnaire, marked "Draft", which among other things identifies:

• that the matter is not one which could be brought on at short notice.

The foreshadowed pre-trial application, for the exclusion of identification evidence, is listed for hearing on 27 August 2009.

• Mr Forsyth to file the application and supporting material by 7 August 2009, and

None of the documents ordered to be filed by Mr Forsyth by 7 August 2009 has been filed.

Mr Saeedi appears before Gray J and withdraws the application to exclude identification evidence that is listed to be heard the following day.

Gray J orders a pre-arraignment conference at which a trial date is to be set.

The trial is tentatively listed for three days commencing 23 August 2010 before Refshauge J sitting without a jury.

A further pre-arraignment conference is set for 23 September 2009.

The Registrar confirms the trial date of 23 August 2010.

Pre-trial directions and arraignment are listed for 13 July 2010.

Chamil Wanigaratne (DPP) emails Mr Saeedi about the trial due to begin on 23 August 2010, to advise that:

• a witness, Janine Slater, is due to give birth in early July 2010, and

• she has been told by her doctor not to travel for two months after the delivery.

Mr Wanigaratne raises with Mr Saeedi the possibility of Ms Slater giving evidence by telephone.

ACT Attorney-General announces appointment of Acting Justice John Nield to ACT Supreme Court, to commence sitting in August 2010.

ACT Attorney-General announces appointment of Acting Justice Jane Matthews to ACT Supreme Court, to commence sitting in October 2010.

Mr Saeedi appears before Refshauge J and advises the court that Mr Forsyth, who is a resident of Western Australia, is not before the court for arraignment.

Refshauge J orders that Mr Forsyth be arraigned at the beginning of the trial on 23 August 2010.

Mr Wanigaratne mentions Ms Slater's inability to give evidence in person at the trial in August and the question whether she can give evidence by telephone from Victoria.

Mr Saeedi says that he does not expect that Mr Forsyth would object to the evidence being given by telephone.

Mr Wanigaratne emails the Supreme Court Registrar and Mr Saeedi about arrangements for the taking of Ms Slater's evidence.

Mr Forsyth's trial is moved from Refshauge J's list to Penfold J's list.

ACT Attorney-General announces appointment of Acting Justice Bernard Teague to ACT Supreme Court, to commence sitting "later this year".

[parts of the transcript of this directions hearing are set out at [116] below]

Mr Sahu Khan (DPP) and Mr Saeedi on behalf of Mr Forsyth appear before Penfold J.

Penfold J declines to vacate the trial date, noting that the DPP should have been aware of the issues with taking evidence by telephone from Victoria.

Mr Saeedi foreshadows representations to the DPP which, he says, might avoid the need for a new trial, but expressly does not oppose the vacation of the trial date.

The directions are adjourned until 20 August 2010 to allow the representations to be made.

[parts of the transcript of this directions hearing are set out at [117] below]

Mr Saeedi notes that it seems inevitable that trial date will need to be vacated and that he does not object to this.

Penfold J notes that as a judge-alone trial, the matter could start as scheduled and then adjourn.

Penfold J points out although there are no trial dates available before her, "there are spare dates coming up with some of the additional judges", specifying that the list before her shows some available time for trials in November 2010.

Mr Sahu Khan advises of his understanding that there are trial dates available in October 2010.

Mr Saeedi on behalf of Mr Forsyth says that discussions with the DPP are continuing and that if the defence representations are unsuccessful, he will "approach the list clerk perhaps in the usual course and seek a fresh date".

The trial set for 23 August 2010 is vacated due to the unavailability of Ms Slater to give evidence in person.

Penfold J orders that the matter be listed for a pre-arraignment conference.

Neither Mr Forsyth nor his representative appears at the pre-arraignment conference.

A further pre-arraignment conference is set for 16 September 2010.

Neither Mr Forsyth nor his representative appears at the pre-arraignment conference.

A further pre-arraignment conference is set for 29 September 2010.

Michael Kukulies-Smith, a member of Mr Saeedi's firm, appears on behalf of Mr Forsyth.

The Registrar advises the parties that there are no available dates in 2011 for the trial.

A trial is listed for three days from 20 February 2012 before a judge sitting alone.

Mr Kukulies-Smith advises the court that Mr Forsyth will make an application for a stay of the proceedings.

The hearing of the stay application is listed for 6 January 2012.

Mr Sahu Khan advises that he is going on leave on 20 December and another prosecutor will attend the hearing on 6 January.

The court orders Mr Forsyth to file and serve the application and supporting material by 16 December 2011.

This is the prosecutor's last day before going on leave, and the application does not reach the prosecutor before he goes on leave, so no material in response is prepared before the Christmas break.

Mr Forsyth faxes an unsealed Notice of a Human Rights Matter to the DPP and the Court.

Mr Kukulies-Smith appears at the hearing of the stay application with written submissions that have not been filed or served, and indicates that he does not wish to make oral submissions without seeing the evidence, if any, that is to be relied on by the prosecutor.

The court makes further orders for filing and serving of submissions (including on the Attorney-General and the Human Rights Commissioner).

The application is listed for further directions on 7 February 3012.

The court notes that the Attorney-General has intervened, and makes further orders for the filing and serving of submissions.

6. Certain parts of this chronology require further explanation.

7. The vacation of the first trial took place because a prosecution witness who was based in Victoria (Janine Slater) was unable to travel to Canberra to give evidence at the time set down for the trial. In a judgment published in April 2010, R v DF [2010] ACTSC 31, a judge-alone trial in which Mr Sahu Khan had also been the prosecutor, I had refused to accept evidence given by telephone from Victoria, even with the consent of the defence, because I found that Victoria was not a participating State for the purposes of the cooperative scheme enacted for the ACT in Div 3.2 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (R v DF at [268] to [302]). This gap in the legislation had already been filled in some other jurisdictions who were parties to the same scheme, and in due course ACT legislation also addressed the problem (Justice and Community Safety Legislation Amendment Act 2010 (No 3) (ACT)). However, this had not happened by August 2010.

8. When the unavailability of the witness first became apparent, the matter was listed before Refshauge J and Mr Wanigaratne was appearing for the DPP. The first time Ms Slater's unavailability seems to have been mentioned in court was on 13 July 2010. Mr Wanigaratne's subsequent communication with the Registrar and Mr Saeedi about the arrangements for telephone evidence suggests that no difficulties with the receipt of telephone evidence were identified during that mention. Refshauge J was of course not bound by my decision in R v DF.

9. Without knowing when Mr Sahu Khan took the matter over from Mr Wanigaratne, I have no basis for assuming that the problem actually existed, and should have been recognised, before the matter turned up before me on 17 August 2010, presumably having been moved into my list some time before that day. However, it was unfortunate that the DPP had no internal arrangements to ensure that judicial decisions on such matters (whether or not regarded as correct) were brought urgently to the attention of all prosecutors.

10. The application for a stay based on the "delay" in bringing Mr Forsyth to trial involved two separate arguments.

11. First, an argument for a stay was made by reference to Mr Forsyth's right under the Human Rights Act 2004 (ACT) to be tried without unreasonable delay.

12. Secondly, a stay was sought based on common law principles.

Human Rights Act - general matters

13. Section 22(2)(c) of the Human Rights Act recognises the right of an accused person "to be tried without unreasonable delay".

14. Counsel for Mr Forsyth submitted in general terms that Mr Forsyth's right to be tried without unreasonable delay had been breached by the delays in this matter, that he was entitled to a remedy for this breach, and that the only effective remedy in this case was a permanent stay of the prosecution.

15. Before examining this submission in detail, it is necessary to make some general comments about the context in which Mr Forsyth's application had to be decided, and about the significance of authorities from other human rights jurisdictions.

16. The main relevant provisions of the Human Rights Act are set out in the Appendix to this judgment.

17. The significance of rights set out in the Human Rights Act is not straightforward. There is a real question about the limits of what can be done or sought in reliance on those rights.

18. The long title of the Human Rights Act is "An Act to respect, protect and promote human rights".

19. The Preamble to the Act gives a general explanation of the value and purposes of an Act setting out human rights, as follows:

1. Human rights are necessary for individuals to live lives of dignity and value.
2. Respecting, protecting and promoting the rights of individuals improves the welfare of the whole community.
3. Human rights are set out in this Act so that individuals know what their rights are.
4. Setting out these human rights also makes it easier for them to be taken into consideration in the development and interpretation of legislation.
5. This Act encourages individuals to see themselves, and each other, as the holders of rights, and as responsible for upholding the human rights of others.
6. Few rights are absolute. Human rights may be subject only to the reasonable limits in law that can be demonstrably justified in a free and democratic society. One individual's rights may also need to be weighed against another individual's rights.
7. Although human rights belong to all individuals, they have special significance for Indigenous people - the first owners of this land, members of its most enduring cultures, and individuals for whom the issue of rights protection has great and continuing importance.

20. The Human Rights Act then sets out a variety of rights, for which the International Covenant on Civil and Political Rights (ICCPR) is identified as the "primary source" (see Note to heading to Part 3). The provisions are generally in the form of "Everyone has the right to ...", although some provisions are framed in the negative ("No-one may be ...") or in another more specific form ("The family ...", "Every child ...", or "Every citizen ...").

21. Section 28 of the Human Rights Act recognises that:

Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

22. The first indication of what is to be done about, or with, the human rights specified in the Human Rights Act comes at Part 4 (Application of human rights to Territory laws).

23. Section 30 of the Human Rights Act requires that:

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

24. In Re Application for Bail by Islam (2010) 4 ACTLR 235, I concluded that the Human Rights Act, while requiring ACT legislation to be interpreted by reference to the rights set out in the Human Rights Act, did not confer a power to interpret legislation in a way not permitted by the words and context of the legislation (at [126]), but provided an alternative remedy (a declaration of incompatibility) to be used where legislation could not be interpreted consistently with human rights. That decision was appealed to the Court of Appeal, but the appeal was withdrawn after the High Court handed down its decision in Momcilovic v The Queen (2011) 245 CLR 1 (Momcilovic) validating the making of declarations of incompatibility (Statement by Attorney-General Simon Corbell, Legislative Assembly, 8 May 2012).

25. Part 5 of the Human Rights Act provides for parliamentary scrutiny of proposed legislation by reference to human rights.

26. Part 5A, a relatively recent addition to the Human Rights Act having been inserted on 1 January 2009 by the Human Rights Amendment Act 2008 (ACT), renders it "unlawful" for a public authority to disregard human rights, specifically by:

(a) acting in a way that is incompatible with a human right (s 40B(1)(a)); or

(b) not giving proper consideration to relevant human rights when making decisions (s 40B(1)(b)).

27. For convenience, I shall refer to these two actions collectively as disregarding a person's human rights.

28. Section 40 defines "public authority" as follows:

(1) Each of the following is a public authority:

(a) an administrative unit;

(b) a territory authority;

(c) a territory instrumentality;

(d) a Minister;

(e) a police officer, when exercising a function under a Territory law;

(f) a public employee;

(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).

(2) However, public authority does not include -

(a) the Legislative Assembly, except when acting in an administrative capacity; or

(b) a court, except when acting in an administrative capacity.

29. It is notable that courts are not public authorities except when acting in an administrative capacity (s 40(2)(b)).

30. Remedies are provided, for unlawful acts described in s 40B, to "victims" of such disregard; under s 40C(2) a victim may start a proceeding in the Supreme Court against the public authority, or may rely on the right that has been disregarded in other legal proceedings. In any such proceeding, the Supreme Court may grant any appropriate relief except damages (s 40C(4)).

31. That is, not only does the Human Rights Act make specific provision about what can be done with or about the human rights set out in the Act, but it also provides explicit or implicit limits on the requirements and remedies provided. The rights set out in the Human Rights Act can be relied on:

(a) when legislation is being interpreted;

(b) when legislation is being scrutinised before enactment; and

(c) when public authorities are acting, particularly when they are making decisions.

32. However, the remedies available in those contexts are limited:

(a) Legislation must be interpreted, but cannot be "rewritten", by the courts or anyone else required to interpret legislation.

(b) Unlawful disregard of human rights by a public authority may be the subject of action in the Supreme Court, or may provide a defence in legal proceedings against a person whose human rights have been disregarded, but there is no scope for the award of damages.

33. There is nothing in the Human Rights Act that indicates a legislative intention to confer or establish rights that are substantive or "self-executing" so as to create an entitlement to remedies above and beyond the specific provisions identified. The imposition of explicit limits on the remedies available is in my view a strong legislative indication that the legal consequences of setting out rights in the Human Rights Act are limited to those consequences set out in that Act. This conclusion does not detract from the "non-legal" aims of the Act mentioned in the Preamble set out at [19] above.

34. In my view, a person who seeks to rely on a right set out in the Human Rights Act because it is set out in that Act (as distinct from, for instance, relying on protections provided by the common law for rights of a kind that also happen to be described in the Human Rights Act) is obliged to bring his or her claim within the scope of the Human Rights Act provisions setting out how rights recognised in that Act may be relied on.

35. As noted, the human right relied on in this application was set out in s 22 of the Human Rights Act. Section 21 of that Act is also relevant. Those sections are as follows:

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) However, the press and public may be excluded from all or part of a trial -

(a) to protect morals, public order or national security in a democratic society; or

(b) if the interest of the private lives of the parties require the exclusion; or

(c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

(1) Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

(a) to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge;

(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;

(c) to be tried without unreasonable delay;

(d) to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her;

(e) to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;

(f) to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance;

(g) to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses;

(h) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court;

(i) not to be compelled to testify against himself or herself or to confess guilt.

(3) A child who is charged with a criminal offence has the right to a procedure that takes account of the child's age and the desirability of promoting the child's rehabilitation.

(4) Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

36. The right to be tried without unreasonable delay is set out in a separate section (s 22) from the right to a fair trial (s 21). It is also separate from the right, having been arrested or detained, to be "tried within a reasonable time or released" (s 18(4)(b) of the Human Rights Act).

37. The ICCPR source of those rights is in general terms provisions of articles 9 and 14, which are as follows:

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Article 14

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;

(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

4. In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

5. Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

6. When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

7. No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.

38. Section 22 of the Human Rights Act is largely drawn from art 14 of the ICCPR, although it does not reflect the complete contents of art 14 (eg art 14.6 is reflected in s 23), and it contains some material sourced from art 9 (eg s 22(2)(a)). Section 22(2)(c) refers to unreasonable delay rather than undue delay as in art 14.3(c).

39. Section 31(1) of the Human Rights Act is as follows:

(1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.

40. Subject to certain practical considerations mentioned in s 31(2), this provision permits reference to international legal materials "relevant to a human right" for the purpose of interpreting the human right. It does, for instance, permit consideration of materials relating to the interpretation of the right to be tried without unreasonable delay. This provision does not explicitly permit reference to international legal materials in determining the nature of the human rights framework in the ACT and how the Human Rights Act is intended to operate, but noting French CJ's comments quoted at [42] below, this is probably of no significance.

41. Section 31 is sometimes relied on to argue that particular entitlements and remedies available in other human rights jurisdictions are also available in the ACT in relation to rights similar to those recognised in those other jurisdictions. Not only is this done without reference to the nature of the ACT's human rights framework by comparison with those of other jurisdictions, but it is sometimes done without even any apparent understanding of the distinction between the contents of the rights recognised in the various jurisdictions and the status or significance given to those rights within the legal system of each jurisdiction. This is not intended as a comment on the careful submissions made by counsel for Mr Forsyth in this case.

42. In Momcilovic, French CJ said this about reliance on international jurisprudence in the human rights field:

1. In addition to the interpretive rule created by s 32(1) of the [Charter of Human Rights and Responsibilities Act 2006 (Vic)], s 32(2) provides:

"International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision."

Section 32(2) does not authorise a court to do anything which it cannot already do. The use of comparative materials in judicial decision-making in Australia is not novel. Courts may, without express statutory authority, refer to the judgments of international and foreign domestic courts which have logical or analogical relevance to the interpretation of a statutory provision. If such a judgment concerns a term identical to or substantially the same as that in the statutory provision being interpreted, then its potential logical or analogical relevance is apparent. The exercise by a court of its capacity to refer to such material does not require the invocation of principles of interpretation affecting statutes giving effect to international treaties or conventions or specifically adopting their terminology. Nor does it involve the application of the common law principle that statutes should be interpreted and applied, so far as their language permits, so as not to be inconsistent with international law or conventions to which Australia is a party. Section 32(2) does not create a mechanism by which international law or interpretive principles affecting international treaties become part of the law of Victoria. On the other hand, it does not exclude the application of common law principles of interpretation relevant to a statute which adopts, as the Charter has, the terminology of an international convention.

1. The "right" declared by s 25(1) of the Charter is expressed in terms found in Art 14(2) of the International Covenant on Civil and Political Rights (1966) (the ICCPR), Art 6(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (the ECHR) and Art 8(2) of the American Convention on Human Rights (1969) (the ACHR). It is found in other conventions and foreign domestic laws and constitutions. Judgments of international and foreign domestic courts may be consulted in determining whether the right to be presumed innocent, declared in s 25(1), should be interpreted as congruent with the common law presumption of innocence or as extending beyond it. The content of a human right will affect the potential application of the interpretive requirement in s 32(1) in relation to that right. Nevertheless, international and foreign domestic judgments should be consulted with discrimination and care. Such judgments are made in a variety of legal systems and constitutional settings which have to be taken into account when reading them. What McHugh J said in Theophanous v Herald & Weekly Times Ltd is applicable in this context:

"The true meaning of a legal text almost always depends on a background of concepts, principles, practices, facts, rights and duties which the authors of the text took for granted or understood, without conscious advertence, by reason of their common language or culture."

Despite our common legal heritage, that general proposition is relevant today in reading decisions of the courts of the United Kingdom, especially in relation to the Human Rights Act 1998 (UK) (the HRA). It is appropriate to take heed not only of Lord Bingham of Cornhill's remark about the need for caution "in considering different enactments decided under different constitutional arrangements", but also his observation that "the United Kingdom courts must take their lead from Strasbourg".

1. The same general caution applies to the use of comparative law materials in construing the interpretive principle in s 32(1). In this appeal what was said to be the strong or remedial approach taken by the House of Lords to the application of the United Kingdom counterpart to s 32(1) of the Charter, namely s 3 of the HRA, was at the forefront of the appellant's submissions. However, s 3 differs textually from s 32(1) and finds its place in a different constitutional setting. [citations omitted] [emphasis added]

43. Three overseas authorities in relation to the significance of unreasonable delay were particularly relied on in this application, being:

(a) Attorney-General's Reference (No. 2 of 2001) [2003] UKHL 68; [2004] 2 AC 72 (House of Lords) (AG's Reference);

(b) R v Morin [1992] 1 SCR 771 (Supreme Court of Canada) (Morin);

(c) R v Williams [2009] NZSC 41; [2009] 2 NZLR 750 (Supreme Court of New Zealand) (Williams).

44. Before examining these authorities, it is necessary to make some preliminary comments about the form of the right to be tried without unreasonable delay, and the framework in which the right is protected in each of the three jurisdictions mentioned.

45. The right concerned is set out in Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), as follows:

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

46. The Human Rights Act 1998 (UK) c 42 (the UK Act) is "An Act to give further effect to rights and freedoms guaranteed under the [Convention]". Sections 6, 7 and 8 are relevantly as follows:

(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.

(2) Subsection (1) does not apply to an act if -

(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or

(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.

(3) In this section "public authority" includes -

(a) a court or tribunal, and

(b) any person certain of whose functions are functions of a public nature,

but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament.

(4) [repealed]

(5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private.

(6) "An act" includes a failure to act but does not include a failure to -

(a) introduce in, or lay before, Parliament a proposal for legislation; or

(b) make any primary legislation or remedial order.

(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may -

(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or

(b) rely on the Convention right or rights concerned in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

...

(5) Proceedings under subsection (1)(a) must be brought before the end of -

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court or tribunal considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

(6) In subsection (1)(b) "legal proceedings" includes -

(a) proceedings brought by or at the instigation of a public authority; and

(b) an appeal against the decision of a court or tribunal.

...

(8) Nothing in this Act creates a criminal offence.

(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.

(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.

(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including -

(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and

(b) the consequences of any decision (of that or any other court) in respect of that act,

the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.

(4) In determining -

(a) whether to award damages, or

(b) the amount of an award,

the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.

(5) ...

(6) In this section -

"court" includes a tribunal;

"damages" means damages for an unlawful act of a public authority; and

"unlawful" means unlawful under section 6(1).

[notes and citations omitted]

47. The UK Act provides for reliance on relevant human rights otherwise than in the interpretation of legislation in a manner very similar to that adopted in the ACT. As to remedies, however, s 8 of the UK Act empowers a court to "grant such relief or remedy, or make such order, within its powers as it considers just and appropriate". This includes the power to award damages, although there are limits on the circumstances in which damages may be awarded (ss (2) to (4)). Importantly, s 6(3) of the UK Act defines public authority to include a court (without confining that application, as in s 40 of the ACT Human Rights Act, to a court's administrative actions).

48. In AG's Reference, a nine-member House of Lords considered two questions posed on behalf of the Attorney-General (set out at 81, [1]), as follows:

(1) Whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the European Convention for the Protection of Fundamental Rights and Freedoms ("the Convention") in circumstances where the accused cannot demonstrate any prejudice arising from the delay. (2) In the determination of whether, for the purposes of article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, when does the relevant time period commence?

49. Lord Bingham of Cornhill summarised the answer to these questions as follows (at 91, [29]):

(1) Criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in article 6(1) of the Convention only if (a) a fair hearing is no longer possible, or (b) it is for any compelling reason unfair to try the defendant. (2) In the determination of whether, for the purposes of article 6(1) of the Convention, a criminal charge has been heard within a reasonable time, the relevant time period commences at the earliest time at which a defendant is officially alerted to the likelihood of criminal proceedings against him, which in England and Wales will ordinarily be when he is charged or served with a summons.

50. Six of the other eight Law Lords agreed with this answer entirely, while two of them (Lord Hope of Craighead and Lord Rodger of Earlsferry) agreed only with the answer to question (2).

51. As mentioned, the relevant guarantee of trial without unreasonable delay is found in Article 6 of the Convention, headed "Right to a Fair Trial". This contrasts with the ACT approach in which the right to a fair trial (s 21) is separated from a general provision about "Rights in criminal proceedings" (s 22), which includes the right to be tried without unreasonable delay (s 22(2)(c)).

52. The Canadian Charter of Rights and Freedoms (the Canadian Charter) is Part 1 of the Constitution Act, 1982 (Can).

53. The right to trial without unreasonable delay is set out in s 11 of the Canadian Charter, as follows:

1. Any person charged with an offence has the right

(a) to be informed without unreasonable delay of the specific offence;

(b) to be tried within a reasonable time;

(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(e) not to be denied reasonable bail without just cause;

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.

54. The enforcement provisions of the Charter include the following provision:

Enforcement of guaranteed rights and freedoms

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

55. That is, in Canada the rights concerned are set out in the Constitution, they are "guaranteed" by the Constitution, and there is a specific entitlement for a person whose guaranteed rights or freedoms have been infringed or denied to apply to a court for any remedy that the court considers appropriate and just.

56. In Morin, the Supreme Court considered an appeal from a refusal to stay a prosecution for a drink-driving offence on the ground that the earliest date offered for a summary trial was nearly 15 months after the appellant had been arrested. The Court noted the interests protected by s 11(b), identified the matters to be considered in deciding whether a trial has been unreasonably delayed, and decided that, in the absence of prejudice, the delay in the particular case was not unreasonable. In relation to whether a trial has been unreasonably delayed, the Court focussed on issues relating to institutional resources (at 794-800).

57. The Court dismissed the appeal, partly in reliance on the fact that no prejudice was asserted and little or none could be inferred (including at 807, 808-809 and 811-812), although Lamer CJC in dissent, relying on the Court's decision in R v Askov [1990] 2 SCR 1199, rejected the proposition that the onus was on the accused to prove prejudice (at 778).

58. In New Zealand, the Bill of Rights set out in the New Zealand Bill of Rights Act 1990 (NZ) is expressed to apply as follows:

This Bill of Rights applies only to acts done -

(a) by the legislative, executive, or judicial branches of the Government of New Zealand; or

(b) by any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

59. There is no specific provision for remedies for infringements of the rights set in Part 2 of the Bill of Rights.

60. Section 25 of the Bill of Rights is as follows:

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) the right to a fair and public hearing by an independent and impartial court:

(c) the right to be presumed innocent until proved guilty according to law:

(d) the right not to be compelled to be a witness or to confess guilt:

(e) the right to be present at the trial and to present a defence:

(f) the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:

(g) the right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

(h) the right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:

(i) the right, in the case of a child, to be dealt with in a manner that takes account of the child's age.

61. In New Zealand, the relevant right is to be tried without "undue" delay; this reflects art 14 of the ICCPR, which appears to be the direct source of s 25 of the Bill of Rights (as it is for most of s 22 of the Human Rights Act). I see no reason to assume that "undue delay" in the New Zealand Bill of Rights is intended to mean anything different from "unreasonable delay" as used in the ACT Act.

62. Williams was a case in which an accused was eventually convicted of serious drug charges at a trial conducted nearly five years after his arrest, after three previous trials had been aborted for reasons almost completely outside the control of either the prosecution or the accused. The Supreme Court of New Zealand unanimously held that (at 762, [23]):

There was undue delay in bringing the appellant to trial, but that delay did not justify a stay and was more than adequately recognised in the reduction in sentence.

63. There are various contrasts between the United Kingdom, Canadian, New Zealand and ACT frameworks for protecting human rights. What this means in the current context is that the fact that a particular remedy has been granted or refused under the legislation of one of those other jurisdictions in respect of a right similar to one mentioned in the ACT Human Rights Act does not, despite s 31 of the Act, mean that an equivalent remedy is or should be available under the ACT Human Rights Act.

64. This does not mean that international human rights jurisprudence is irrelevant except in the interpretation of the particular rights mentioned in the ACT Human Rights Act. What is does mean, as French CJ has indicated, is that such jurisprudence needs to be used carefully and rigorously, in the same way that decisions from other jurisdictions interpreting similar but not identical legislation should also be approached with care. Where the questions arise in different legal contexts, the answers in one context cannot be assumed to be necessarily correct or even useful in a different context.

65. It needs also to be borne in mind that even in relation to individual rights differences in their form may produce differences in their significance - for instance, in the United Kingdom the right to trial without unreasonable delay is contained within an article dealing with the right to a fair trial, whereas in the ACT the two rights are provided for separately, with implications for whether unreasonableness of a delay is to be determined by reference to the impact of the delay on the fairness of the trial.

66. There are also two ACT cases relied on by Mr Forsyth in this application, R v Mills [2011] ACTSC 109 (Mills) and R v Upton [2005] ACTSC 52 (Upton).

67. In Mills, Higgins CJ granted a permanent stay of charges on the day set down for those charges to be heard in a second trial. The first trial had been aborted due to inadequate disclosure of evidence by the prosecutor, and the listing of the second trial had been delayed by prosecution inaction. Higgins CJ based his decision on the right to be tried without unreasonable delay as set out in the Human Rights Act.

68. The Chief Justice, however, did not articulate the specific basis on which the Human Rights Act permitted the granting of a stay in such circumstances. Counsel for Mr Forsyth conceded the absence of such an explanation, and sought in his submissions to remedy that problem by identifying the specific basis for the human rights-based stay application in the current matter. However, he maintained his reliance on Mills as a generally relevant precedent.

69. Upton was decided before the Human Rights Act was amended to impose obligations on public authorities and to provide remedies for failures by such authorities. In that case, Connolly J relied on s 22(2)(c) of the Human Rights Act and s 20 of the Supreme Court Act 1933 (ACT) in considering whether to stay a prosecution after a first trial had to be aborted and the DPP sought to vacate the second trial at the last minute. His Honour granted a temporary stay, which was to be made absolute later unless the DPP agreed to reimburse the accused for the costs incurred in relation to the aborted and vacated trials and satisfied his Honour that a fair trial would still be possible.

Interpretation of legislation by reference to human rights

70. With one qualification, it was not suggested that there was any relevant legislation the interpretation of which might be affected by s 22(2)(c) of the Human Rights Act.

71. The qualification is that at various points in the argument, there were suggestions that section 20 of the Supreme Court Act might have been relevant to the availability of a remedy, or to the nature of the remedies available, in this matter.

72. Section 20 of the Supreme Court Act is as follows:

(1) The court has the following jurisdiction:

(a) all original and appellate jurisdiction that is necessary to administer justice in the Territory;

(b) jurisdiction conferred by a Commonwealth Act or a law of the Territory.

(2) Unless it is required to do so by or under a Commonwealth Act or a law of the Territory, the court is not bound to exercise its powers if it has concurrent jurisdiction with another court or tribunal.

73. This section has been relied on from time to time (notably in Kelly v Apps [2000] FCA 687; (2000) 98 FCR 101, to provide a source for jurisdiction not otherwise conferred on the ACT Supreme Court by any law of the Territory or other specific source. In Kelly v Apps, the Full Federal Court appears to have held (at [22]) that s 20(1) of the Supreme Court Act confers on the Supreme Court effectively unlimited jurisdiction to hear appeals from the Magistrates Court or, at least, such appeal jurisdiction as is necessary "to enable justice to be done by the Supreme Court", despite the explicit limits imposed by the Magistrates Court Act 1930 (ACT).

74. In Bloxham v Wyte [2013] ACTSC 151, I expressed at [49] to [51] the view that, having regard to the well-accepted proposition that appeals are creatures of statute, Kelly v Apps was not an adequate basis on which to interpret s 20 as conferring on the Supreme Court jurisdiction to hear appeals from the Magistrates Court that were not covered by the express and detailed provisions of the Magistrates Court Act 1930 (ACT).

75. The argument in this case, however, seems to be slightly different, to the extent that it relates to the power to grant particular remedies rather than to the existence of jurisdiction as such. More relevantly, it is not clear what the argument actually is, or whether it matters to the questions I have to decide. I do not understand there to be any doubt about the power of this court to grant a stay in accordance with the common law (at [261] below). Equally, if s 40C of the Human Rights Act is engaged in the circumstances of this application, I do not understand there to be any doubt about the power of this court to grant a stay in the exercise of the explicit power conferred by s 40C(4) to grant "the relief [the court] considers appropriate except damages".

76. If there was a further argument to the effect that s 20 of the Supreme Court Act, interpreted by reference to the Human Rights Act, conferred a separate power to provide a remedy, going beyond what is available at common law and what is available under the "enforcement" provisions of the Human Rights Act, for a breach of the right to trial without unreasonable delay (or indeed a breach of any other right recognised in the Human Rights Act), it was not argued in a way that needs to be responded to in this judgment.

Actions of public authorities in disregard of human rights

77. Counsel, sensibly, focussed his argument on the provisions of Part 5A relating to actions of public authorities.

(a) Mr Forsyth's trial on the charge of assault occasioning actual bodily harm had been unreasonably delayed.

(b) The DPP is a public authority under s 40B of the Human Rights Act.

(c) The DPP's maintenance of the prosecution was unlawful under s 40B of the Human Rights Act because in maintaining it, the DPP failed to give proper consideration to a relevant human right, specifically Mr Forsyth's right under s 22(2)(c) to be tried without unreasonable delay.

(d) Section 40C(2)(b) empowered Mr Forsyth to rely on the DPP's unlawful act in proceedings against him in respect of the assault charge.

(e) A remedy is available under s 40C(4) for the DPP's unlawful act arising out of the unreasonable delay in bringing Mr Forsyth to trial.

79. This argument is in my view logically sound, in that each step may follow logically from its predecessor. There is no reason why, if the factual bases for such an argument could be made out, the argument should not progress successfully to a conclusion that relief is available. The determination of what if any remedy should be provided would be a matter for the court's discretion; in this case, counsel argued that the appropriate relief would be a permanent stay of the proceedings.

80. Before considering the contentious aspects of the application, I note that two of the steps in counsel's argument were not seriously contested in this application.

81. First, both the DPP and the Attorney-General as Intervener made submissions on the basis that the DPP is a public authority, although the DPP noted that this was not in fact conceded and asserted that it did not need to be decided (because in its view unreasonable delay had not been made out). Given the approach taken by the DPP, I dealt with the application on the basis that the DPP was a public authority, but that is an assumption for the purposes of this decision rather than a finding after proper argument.

82. My preliminary view is that the DPP is a public authority, but that it should not be equated with the executive in the context of the Human Rights Act. Relevantly for this case, it is not a public authority responsible for ensuring that resources (except DPP resources) are available to enable trials to be held without unreasonable delay. A failure to provide a prosecutor to conduct a listed trial might show an unlawful disregard of an accused's human rights by the DPP, but the DPP cannot be held responsible, as such, for the Supreme Court's inability or failure to offer early trial dates. Nor in my view could the DPP be held responsible, as such, for decisions such as a decision by a person responsible for courts administration to redirect available funds away from trials and into more peripheral areas of the Court's activities. In such a case, however, the courts administrators might be part of a public authority that could itself be found to have disregarded a person's right to trial without unreasonable delay, which might in turn permit a remedy to be provided for the breach of that right (including, in an appropriate case, a stay).

(a) the DPP is a public authority; and

(b) unreasonable delay in bringing Mr Forsyth to trial, and a DPP failure to give proper consideration to Mr Forsyth's right to be tried without unreasonable delay, were made out;

then Mr Forsyth could rely on those findings in the proceedings against him for assault occasioning actual bodily harm, including by seeking a stay of those proceedings.

(a) first, whether Mr Forsyth's trial had been unreasonably delayed;

(b) secondly, if so, whether the DPP's maintenance of the proceeding against Mr Forsyth was or had become unlawful under s 40B of the Human Rights Act; and

(c) finally, if so, whether a permanent stay of the proceeding should be granted.

85. Clearly, the lapse of time in this case between the original charge and the eventual trial date was unfortunate and undesirable. Whether it was "unreasonable delay" is another question.

86. In Williams, the Court at [12] (quoted at [182] below) said that "undue" (used in the equivalent provision, s 25(b), of the New Zealand Bill of Rights which refers to a right to trial without "undue delay"), was synonymous with unjustifiable.

87. In assessing "delay", it is necessary to keep in mind the difference between elapsed time that is necessary for the processes that move the matter from the start of the proceedings to the trial, and unnecessary delay.

88. In Morin, Sopinka J said this about the assessment of delay (at 791):

All offences have certain inherent time requirements which inevitably lead to delay. Just as the firetruck must get to the fire, so must a case be prepared. The complexity of the trial is one requirement which has often been mentioned. All other factors being equal, the more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. For example, a fraud case may involve the analysis of many documents, some conspiracies may involve a large number of witnesses and other cases may involve numerous intercepted communications which all must be transcribed and analyzed. The inherent requirements of such cases will serve to excuse longer periods of delay than for cases which are less complex. Each case will bring its own set of facts which must be evaluated. Account must also be taken of the fact that counsel for the prosecution and the defence cannot be expected to devote their time exclusively to one case. The amount of time that should be allowed counsel is well within the field of expertise of trial judges.

As well as the complexity of a case, there are inherent requirements which are common to almost all cases. The respondent has described such activities as "intake requirements". Whatever one wishes to call these requirements, they consist of activities such as retention of counsel, bail hearings, police and administration paperwork, disclosure, etc. All of these activities may or may not be necessary in a particular case but each takes some amount of time. As the number and complexity of these activities increase, so does the amount of delay that is reasonable. Equally, the fewer the activities which are necessary and the simpler the form each activity takes, the shorter should be the delay. ... The length of time necessary will be influenced by local practices and conditions and should reflect that fact. No doubt the intake period in a particular region will tend to be the same for most offences. There may, however, be a significant variation between some categories of offences, such as between summons cases and cases of arrest. ...

Another inherent delay that must be taken into account is whether a case must proceed through a preliminary inquiry. Clearly a longer time must be allowed for cases that must proceed through a "two-stage" trial process than for cases which do not require a preliminary hearing. Equally, a two-stage process will involve additional inherent delays such as further pre-trial meetings and added court dates. An additional period for inherent time requirements must be allowed for this second stage. This period will be shorter than in the case of the one-stage trial process because many of the intake procedures will not have to be duplicated.

89. Counsel for Mr Forsyth relied on the Canadian Supreme Court's identification in Morin at 787 of the factors relevant in determining whether there had been unreasonable delay, as follows:

1. the length of the delay;

2. waiver of time periods;

3. the reasons for the delay, including

(a) inherent time requirements of the case

(b) actions of the accused

(c) actions of the Crown

(d) limits on institutional resources, and

(e) other reasons for delay; and

4. prejudice to the accused.

90. The United Kingdom and New Zealand authorities appear to take a different view from the Canadian authorities of the significance of prejudice, although whether the different approach produces different outcomes is not so clear. In both AG's Reference and Williams, the courts treated prejudice not as part of the determination of whether there has been unreasonable delay but as a matter to be looked at when remedies are being considered after a finding of unreasonable delay. In both the United Kingdom and New Zealand it is accepted that there may be unreasonable delay without prejudice.

91. As a matter of principle, there is no reason why it should be necessary to show prejudice as part of establishing unreasonable delay; prejudice and unreasonable delay may often be found together, but each of them may also be found without the other. It is easy to imagine cases where there might be prejudice without any real "delay" (eg where a key witness has died), and also cases where delay caused, for instance, by prosecution inaction or misconduct could legitimately be described as "unreasonable" in the sense of unjustifiable even if no prejudice can be shown. Furthermore, requiring prejudice as a basis for finding that delay is unreasonable excludes the possibility of providing any kind of remedy (even a declaration) where there may be insufficient ground for staying a prosecution but a real need to identify and denounce a breach of a person's human rights. For those reasons, I propose to follow the United Kingdom and New Zealand approach and consider the "delays" in this case by reference to those factors other than prejudice; prejudice will be considered separately.

92. In determining the length of the delay, it is first necessary to identify the starting point of the period to be assessed.

93. In AG's Reference, the relevant period was said to be from the earliest time at which the accused is alerted to the likelihood of criminal proceedings against him or her, "which in England and Wales will ordinarily be when he is charged or served with a summons" (at [29]). In Morin the period was to be assessed from a date no earlier than the charge, being "the date on which an information is sworn or an indictment is preferred" (relying on R v Kalanj [1989] 1 SCR 1594). Sopinka J noted that pre-charge delay may be relevant to assessing whether post-charge delay was unreasonable, but is not counted in determining the length of the delay (at 789). In Williams the period was said to run from arrest to final disposition, including, where relevant, any appeal (at [10]).

94. Counsel for Mr Forsyth said that the period from committal to trial was the appropriate measure, but that approach does not seem to be supported by any of the overseas authorities mentioned.

95. In Mills, Higgins CJ, while not addressing the question specifically, referred to the matter having taken "four years (less one week)" to come to trial after "the decision to prosecute" (at [31]), but it is not apparent from the judgment what his Honour saw as marking the beginning of the four years (the accused's initial engagement with police when her home was searched occurred about six months before that point, and her committal for trial took place about six months after the four-year point, while the date on which she was charged is not mentioned in the judgment but presumably fell at some point between the search of the accused's home and her committal for trial).

96. I cannot see anything in the Human Rights Act or the ACT authorities that would support the approach advanced by counsel for Mr Forsyth. It is possible to imagine objectionable delay after a person is charged, or becomes aware that he or she is to be charged, but before he or she is committed, and I can see no basis in principle for excluding such delay in the face of the international authorities.

97. As already noted, the elapsed time between Mr Forsyth's alleged offence (19 November 2007) and the trial (20 February 2012) was four years and three months. Four years passed between the first court mention of the matter and the trial, while the time from committal to trial was three years and three months.

98. As it happens, most of the delay attributable to Mr Forsyth took place after he was committed to the Supreme Court, so there would be no benefit to him if I were to find that committal is the point at which time begins to run against the requirement of reasonableness.

99. Furthermore, the facts of this case would in my view justify consideration of the relevant period starting possibly when Mr Forsyth was made aware that proceedings against him were likely, and arrangements were made for a summons to be served on his solicitor, but in any case no later than when that summons was served as agreed; from that point many of the burdens of legal proceedings (in particular the personal distress and the ongoing uncertainty) would have begun, and the method of proceedings that had been agreed between Mr Forsyth, his solicitor, and police officers to take account of the fact that Mr Forsyth was a resident of Western Australia should not delay the engagement of s 22(2)(c), with whatever benefit that might provide to Mr Forsyth. I shall approach the matter on that basis. At the same time I note that the delay between when Mr Forsyth spoke to police and agreed to accept service of the summons through his solicitor and the time when the summons was issued (about two months covering the Christmas/New Year period) does not seem to have involved any unjustifiable delay as such.

100. That conclusion about the particular facts of Mr Forsyth's case is in my view consistent with the general proposition put in AG's Reference (at [93] above) that the period should begin when the person "is alerted to the likelihood of criminal proceedings against him", which I take to mean "alerted that it is likely that criminal proceedings will be brought" rather than "alerted to how likely it is that criminal proceedings will be brought".

101. Given that there appears to have been no arrest, and that the charge was laid after Mr Forsyth had been summonsed to appear, I do not see any inconsistency between my conclusion and the Canadian and New Zealand cases either. Furthermore, in this case it does not seem to matter exactly what point is chosen within the rough parameters of the point at which Mr Forsyth became aware that criminal proceedings were likely to be commenced, to the extent that each extra stage that is included in the period will have an impact on the assessment of unreasonable delay. In the present case, for instance, the effect of the police decision to proceed by summons against a person resident outside the ACT on the time needed for the initial stages of the proceedings would need to be accounted for in assessing whether the total delay was unreasonable.

102. No express waiver in relation to delay was pointed to, and nor was anything that would have counted as a waiver by reference to the criteria laid down in Morin at 790, as follows:

This Court has clearly stated that in order for an accused to waive his or her rights under s. 11(b), such waiver must be clear and unequivocal, with full knowledge of the rights the procedure was enacted to protect and of the effect that waiver will have on those rights. Waiver can be explicit or implicit. If the waiver is said to be implicit, the conduct of the accused must comply with the stringent test for waiver set out above. As Cory J. described it in Askov, supra, at p. 1228:

... there must be something in the conduct of the accused that is sufficient to give rise to an inference that the accused has understood that he or she had a s. 11(b) guarantee, understood its nature and has waived the right provided by that guarantee.

Waiver requires advertence to the act of release rather than mere inadvertence. If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith, supra, which was adopted in Askov, supra, consent to a trial date can give rise to an inference of waiver. This will not be so if consent to a date amounts to mere acquiescence in the inevitable. [citations omitted]

103. However, the DPP argued that Mr Forsyth had waived his right to a "speedy trial", and had contributed to delay, by his refusal to submit to the jurisdiction of the Magistrates Court.

104. I reject the proposition that refusing to submit to summary jurisdiction in respect of an indictable offence is of itself a waiver of the right to be tried without unreasonable delay, or a waiver of the right to complain about any further delays. Mr Forsyth was entitled to refuse to consent to summary jurisdiction, although given that in the Supreme Court he elected for trial by judge alone it seems that his refusal did not reflect a wish to exercise his right to trial by jury.

105. On the other hand it is clear that, in choosing to have his trial in the Supreme Court, Mr Forsyth had accepted that "unreasonable delay" would be assessed by a different set of standards, specifically against the extended timeframe necessary to allow for all the extra processes required by a Supreme Court trial instead of a trial in the Magistrates Court (Morin at 791, quoted at [88] above).

106. It is also arguable that in choosing a non-jury trial in the Supreme Court instead of in the Magistrates Court, Mr Forsyth accepted not just the "delay" inherent in adding a second stage to the proceedings but also the delays affecting the listing of Supreme Court trials that arose from resource shortages in the Supreme Court rather than from the inherent requirements of the processes.

107. The DPP also submitted that by consenting to each of the trial dates (presumably more significantly the second one), Mr Forsyth had waived his right to be tried without unreasonable delay.

108. Counsel for Mr Forsyth relied on McFarlane v Ireland (European Court of Human Rights, Grand Chamber, Application No. 31333/06, 10 September 2010), in which the European Court of Human Rights said (at [152]) that:

...even the applicant's agreement to a later hearing date did not remove the State's obligation to ensure expedition.

109. Counsel's submission was, however, that despite Mr Forsyth's failure to complain about delay until the last minute, the DPP "acting on behalf of the ACT" was still responsible, especially since, counsel said, it was the DPP's own incompetence that had resulted in the first trial date being vacated. In making this submission, counsel has fallen into the trap of conflating the question whether the trial had been unreasonably delayed with the question whether a public authority had acted unlawfully in relation to that delay (despite his apparent recognition of the distinction as shown in the argument outlined at [78] above); he has also confused the DPP with "the State" or the executive.

110. While rejecting counsel's submission based on McFarlane v Ireland, I also reject the DPP's proposition that a simple acquiescence in the setting of a trial date, however far ahead, necessarily amounts to a waiver of the right to trial without unreasonable delay. Apart from anything else, in the circumstances of this case it seems unlikely that Mr Forsyth was present when either trial date was set, and there is no reason to assume that his lawyers would have had immediate instructions to resist a late trial date.

111. On the other hand, I consider that Mr Forsyth's failure to seek an expedited trial after an adequate period for reflection and for the provision of instructions, in favour of seeking a permanent stay so late in the proceedings that an expedited trial date was no longer an available remedy, is relevant both to considerations of prejudice and to the question of appropriate remedies.

112. The chronology set out at [5] above provides a basis on which to identify explanations for the elapsed time between the incident and the trial.

113. I note first the point made in Morin that in considering the contribution to delay of the accused and the prosecutor, the exercise is not one of apportioning blame or imputing improper motives (at 793-794):

(b) Actions of the Accused

This aspect of the reasons for the delay should not be read as putting the "blame" on the accused for certain portions of delay. There is no necessity to impute improper motives to the accused in considering this factor. Included under this heading are all actions taken by the accused which may have caused delay. In this section I am concerned with actions of the accused which are voluntarily undertaken. Actions which could be included in this category include change of venue motions, attacks on wiretap packets, adjournments which do not amount to waiver, attacks on search warrants, etc. I do not wish to be interpreted as advocating that the accused sacrifice all preliminary procedures and strategy, but simply point out that if the accused chooses to take such action, this will be taken into account in determining what length of delay is reasonable.

An example of such actions is provided by Conway, supra. In Conway, the accused made a number of requests which led to the proceedings being delayed. Those requests included a change of venue motion, changes of solicitor and a request that the accused be allowed to re-elect trial by judge alone. A further example is provided in Bennett, supra, where the accused made an election at his scheduled Provincial Court trial to be tried in the then District Court. This converted a scheduled trial into a preliminary inquiry. While the type of action of the accused in both these cases was unquestionably bona fide, each action contributed to the delay and must therefore be taken into consideration in determining whether the overall delay suffered by the accused was reasonable.

(c) Actions of the Crown

As with the conduct of the accused, this factor does not serve to assign blame. This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc. An example of action of this type is provided in Smith, supra, where adjournments were sought due to the wish of the Crown to have a particular investigating officer attend the trial. As I stated in that case, there is nothing wrong with the Crown seeking such adjournments but such delays cannot be relied upon by the Crown to explain away delay that is otherwise unreasonable.

114. The trial was a simple and short one, and it appeared that all the evidence would have been available to the prosecution quite quickly; there was nothing in the nature of the case to justify a longer than usual delay in bringing the matter to trial.

115. Apart from Mr Forsyth's failure to appear in the Magistrates Court on 26 February 2008, there is no evidence of delay attributable to Mr Forsyth to the early stages of the proceedings. It is not clear why there was a gap of six months between the first listing of a CMH and the Magistrates Court committal hearing, but this may simply have reflected routine waiting times for Magistrates Court hearings.

116. From November 2008 until September 2009, however, the delay in listing the matter for trial after it was committed to the Supreme Court appears to have been caused by Mr Forsyth, first by failing for at least five months to complete the pre-trial questionnaire about various aspects of the proceedings that is required by the Supreme Court before a trial date can be set, and then by foreshadowing a pre-trial application that was not pursued but which appears to have delayed the listing of the trial by a further three months. When a trial date was finally set, in September 2009, it was in August 2010 (involving a wait of 11 months). Mr Forsyth's failure to appear for arraignment in July 2010, while indicative of disrespect for the orders of the court, did not however cause any delay in the proceedings.

117. The August 2010 trial date was vacated for reasons clearly outside the control of either party to the extent that they related to the pregnancy of one of the prosecution witnesses. However, the chronology, and the transcript extracts set out below, indicate that two options for keeping matters moving were identified when the vacation of the trial was raised on 17 August 2010 and when the trial was vacated on 20 August 2010.

118. On 17 August 2010, there was the following discussion:

MR SAHU KHAN: Having said that, your Honour, the matter is set down for trial on Monday. We have two options; one is to take this matter as part-heard commencing on Monday and then to adjourn the matter until another date. However, can I just inform your Honour, at this stage, it is that the report - the medical report that I have in hand seems to suggest that she will not be fit to travel 12 weeks from 8 July. So whether that is going to be advisable or desirable course to take, to have a matter part-heard for three months from July ---

HER HONOUR: How crucial is she as a witness? When I read the case statement, she didn't look to be particularly crucial at all. But I guess you know more about what the other witnesses are likely to say.

MR SAHU KHAN: She is crucial, your Honour.

HER HONOUR: All right.

MR SAHU KHAN: And having said that, I have spoken with my learned friend, and it appears that a more appropriate course of action may be to vacate the date next week. But I will stand subject to your Honour's views in the matter.

HER HONOUR: Mr Saeedi.

MR SAEEDI: There is an - in light of that additional thing, there is an argument about identification in this case, which I have flagged previously, but I have not made full representations to my friend's office. What I propose to do is to make those representations, and in light of vacating the trial date and so on, it may be a case where the prosecutor's office can reconsider the case in the light of the guidelines of prosecution, and whether it is in the public interest to have - and assess the strength of their case again.

If your Honour was minded to adjourn the matter for further directions, perhaps sort of this Thursday or Friday, rather than vacating, because I do not expect that your Honour would be able to be in a position to get another trial on such short notice in any event. It may be that I can make some representation to my friend's office and if those representations are successful and may avoid the need for a new trial date. This matter has been lingering around for some time now.

...

MR SAEEDI: I will look into the matter as well, but your Honour, if the matter could perhaps be adjourned for two days, I came into - I only found out through emails about this, I can make some representations. I can also have some further discussions with my friend's office. It may be - to alleviate the need to vacate the trial date. If your Honour, however, is minded to vacate the trial date, I am not standing here opposing it.

HER HONOUR: No, no, I see no need for vacating it at this stage. I mean, this is an issue, and it may be that Refshauge J didn't take any point on it, but it is an issue that is within the knowledge of the DPP. Mr Sahu Khan put a lot of effort into trying to persuade me in the other case that there was scope for taking evidence by phone from Victoria. Now, I cannot see why the DPP did not think about the whole problem a bit earlier, because there was always a chance that whichever judge they got would take the same view.

MR SAHU KHAN: We may not ---

HER HONOUR: So I do not think we will vacate at this stage, certainly.

MR SAEEDI: Thank you, your Honour.

...

119. When the matter came back before me on 20 August 2010, there was the following discussion:

MR SAEEDI: Your Honour, it seems that it is inevitable that the trial date will need to be vacated, in light of the absence of this witness, or unavailability of this witness in the ordinary form. So we have no objection to the vacation of the trial in the light of that.

HER HONOUR: Now, this is a judge alone trial, isn't it?

MR SAEEDI: Yes.

MR SAHU KHAN: That is so, your Honour.

...

HER HONOUR: Yes, so ... we could start and then adjourn, but ---

MR SAEEDI: Your Honour, that would not be - in my respectful submission, that would not be the preferred way of this matter running.

HER HONOUR: All right.

MR SAEEDI: There is some discussion with my friend's office about some representations as well, going on, but it may be best to vacate the trial date, and we do make those representations. If unsuccessful, we are going to approach the list clerk perhaps in the usual course and seek a fresh date.

HER HONOUR: All right.

MR SAEEDI: Would your Honour perhaps send it back to the [pre-arraignment conference]?

HER HONOUR: Yes.

MR SAEEDI: Would that be a better way?

HER HONOUR: Yes, I'm happy to do that. ... there is no scope for me finding you a trial date in front of me, but there are spare dates coming up with some of the other additional judges. ...

...

MR SAHU KHAN: Yes. Yes, we don't have that information. Can I just say one more thing, your Honour, is that there are apparently some dates available towards the end of October now. That is the information we received.

HER HONOUR: Well, look, there might be. That doesn't show up on the list I have got, but there are some in November that show up on the list I have got. But it may still be better to send you back to the pre-arraignment conference. ...

HER HONOUR: And vacate the trial, with some reluctance, and send the matter back to the [pre-arraignment conference] for whatever can happen next. All right, nothing more then, at this stage? Nothing more from you, Mr Saeedi?

MR SAEEDI: No, thank you your Honour.

120. One option was to start the trial as scheduled, adjourn it part-heard and finish it as the other witnesses became available - this is not generally a realistic option in a jury trial, but is not infrequently used in a judge-alone trial.

121. The other option was to take immediate advantage of the availability of acting judges to hear trials in October and November 2010, only a month or two away.

122. It is apparent from the transcript of the mention on 20 August 2010 that Mr Forsyth's counsel was not interested in getting the trial started subject to adjournment, but also that he showed no enthusiasm for pursuing one of the October or November 2010 trial dates that were, during the mention, said to be available. Instead, he indicated that after making representations to the DPP, and if those representations were unsuccessful, he would "approach the list clerk perhaps in the usual course".

123. There was unfortunately no scope for me to vacate the trial and immediately relist it on one of the dates said to be available later in 2010, because at that point only the Registrar and certain registry staff had immediate access to the information necessary to list a trial, in particular the availability of the three acting Judges whose appointments appear to have enabled the offering of the early trial dates.

124. Despite my order that the matter go back to a pre-arraignment conference, and a pre-arraignment conference being listed five days after the vacation of the trial, no-one appeared on behalf of Mr Forsyth at two scheduled pre-arraignment conferences thereafter, and it was not until nearly six weeks later, 29 September 2010, that a new trial date was able to be set. By that stage, neither the late 2010 trial dates nor, apparently, any 2011 trial dates, were available, and the matter was listed for a date 17 months away.

125. There is no evidence before me that earlier trial dates would have been available if the trial had been able to be listed at either of the earlier PACs, but I see no reason to assume that the early trial dates indicated to Mr Sahu Khan by the Registrar shortly before the first trial was vacated and to me in the forward listings document I had in court would not have survived at least until the first scheduled pre-arraignment conference only four days later, and possibly for another week.

126. On the other hand, there is no explanation for the fact that, despite the injection over a period of a few months of resources said to equate to one full-time judge for nine months (at [159] below), the waiting time for a trial date (even for a short judge-alone trial which did not require a jury or a jury courtroom) had within a period of six weeks, blown out from a possible two or three months back to nearly 17 months.

127. Finally, Mr Forsyth or his representatives were also responsible for delaying both the notification and the hearing of the stay application itself. This did not delay Mr Forsyth's trial, but it did limit the scope of available remedies if the trial date set in September 2009 was found to reflect unreasonable delay in these proceedings.

128. On this analysis, Mr Forsyth or his legal representatives were:

(a) directly responsible for roughly eight months of the "delay" between the incident and the trial, being the time after the DPP had filed its documents after committal and before the first trial was able to be listed; and

(b) indirectly responsible for up to 15 or 16 months apparently lost because the second trial was not able to be listed while there were still trial dates available in late 2010.

129. This totals roughly 23 or 24 months lost between the committal and the trial.

130. Once the periods of "delay" directly or indirectly attributable to the defence are excluded from the calculation, the total elapsed time between the incident and the trial is roughly 27 or 28 months, and the total elapsed time between committal and trial is roughly 15 or 16 months. At the relevant time, the passage of 27 or 28 months between an alleged offence and an accused's trial in the ACT Supreme Court, and the passage of 15 or 16 months between committal and trial, would not have been unusual, especially for an accused who was neither in custody nor subject to particularly onerous bail conditions, and who had given no indication that the absence of finality in the matter was causing concern.

131. I do not mean to suggest that either of those periods, 27 or 28 months from offence to trial or 16 or 17 months from committal to trial, is desirable, only that at the relevant time neither of them was out of the ordinary.

132. I also, by mentioning that Mr Forsyth had given no indication that he was concerned by delays in finalising his matter, do not mean to suggest that in general an accused is under any obligation to make known a desire for a speedy trial - a trial without unreasonable delay is after all identified as one of his or her human rights (although not necessarily one that all accused persons are keen to enforce).

133. In summary, in this case not only did the defence make significant contributions to the delay in fixing a date for each trial, but there was no attempt made on behalf of Mr Forsyth, formally or informally, to obtain an expedited trial, or a permanent stay, once the general unavailability of trial dates in 2011 became apparent. If a trial in February 2012 (17 months from listing) was an unreasonably delayed trial, it fitted that description as soon as it was listed in September 2010; despite that, no complaint about delay was made by Mr Forsyth until December 2011, 15 months later.

134. As to the actions of the Crown, in this context specifically the DPP (rather than the executive), there were three aspects of the DPP's involvement in this matter that may be seen as contributing to the delays in bringing this matter to trial.

135. The DPP's non-appearance at the pre-arraignment conference scheduled for 1 September 2009 (after the pre-trial application had been abandoned on 26 August 2009) presumably delayed the listing of the first trial by a week.

136. The DPP's failure to recognise the extent of the problem caused by the unavailability of Ms Slater to give evidence during the period listed for the first trial is more difficult to assess. Even if in late June 2010 Mr Wanigaratne had been aware of my decision in R v DF and had reason to believe that Refshauge J would follow it (rather than the problem only emerging when the matter was moved into my list) it is hard to see what the DPP could have done about the problem by that time, apart from what was in fact done, namely to try to establish the defence's attitude to the issue, to check the availability of other trial dates if the trial had to be vacated, and to consider the option put by me to start the trial knowing that it would have to be adjourned at some point until Ms Slater was available to travel to Canberra. If Mr Wanigaratne had identified the problem in late June, it may be that the trial could have been vacated earlier and a second trial could have been set for later in 2010. In fact, from the DPP's perspective, the matter was only recognised as problematic when the trial was moved into my list shortly before 17 August 2010, at which point events moved quickly; the trial was vacated three days later, and the next pre-arraignment conference was scheduled for five days after that.

(a) although raising it as an option, did not positively support the commencement of the trial with a view to later adjournment;

(b) did not resist the vacation of the first trial with sufficient enthusiasm; and

(c) did not insist on having a new trial date set immediately when the first trial was vacated.

138. It does not seem to have been unreasonable for Mr Sahu Khan not to pursue my proposal to split the trial, certainly a relatively undesirable option from all perspectives, in the context of his understanding that a new trial date within two or three months was likely to be available.

139. I have already noted that there was no scope for me to set a new trial date immediately I agreed to vacate the first trial date, so it is not clear what would have been achieved by the DPP attempting to insist on a new trial date being set immediately.

140. Apart from the one week delay identified at [135] above, the DPP's contribution to delay seems to be more properly characterised as failing to be assertive enough in ensuring that the trial took place as quickly as possible, rather than as making any positive contribution to delay.

141. On the other side of the ledger, the prosecutor had taken the initiative to enquire about the availability of court dates in the near future before the first trial was finally vacated.

142. Counsel for Mr Forsyth submitted that the delay complained of "is principally the result of the prosecution's failure to be ready for the first trial dates". As noted at [7] above, the problem with the first trial was certainly the prosecution's inability to produce a lay witness, but neither the cause of that inability, nor any solution, was within the prosecution's control. The argument that the DPP should have recognised the existence of the problem earlier does not in my view take the matter much further, in the absence of a sensible proposition to the effect that if the DPP had recognised the problem earlier there would have been a solution. In those circumstances, I cannot see that a comparison between Mr Forsyth's contribution to delay and the DPP's contribution justifies counsel's submission attributing the delay principally to the DPP.

1. The unlawful continuance of proceedings by the DPP amount [sic] to an abuse of the process of the Court. The bringing of the proceedings is a use of the process of the courts for a purpose alien to the administration of justice under law: Williams v Spautz [1992] HCA 34; (1990) 174 CLR 509 at 520. The continuation of proceedings should be viewed in the same way.

144. The facts of Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 are summarised in the CLR headnote as follows:

A lecturer commenced an action against a university for wrongful dismissal. The lecturer later laid informations against various officers of the university alleging a number of offences including, criminal conspiracy to defame and conspiracy to injure him without justiciation [sic] and by illegal means. On the application of some of those persons for declarations that particular prosecutions were an abuse of process, a judge found that the lecturer's predominant purpose in instituting and maintaining the criminal proceedings was to exert pressure upon the university to reinstate him and/or to agree to a favourable settlement of the case for wrongful dismissal. He made the declarations and stayed the prosecutions permanently.

145. The High Court (Mason CJ, Brennan, Dawson, Toohey and McHugh JJ, Deane and Gaudron JJ dissenting) upheld the trial judge's decision to stay the proceedings as an abuse of process. At 520, Mason CJ and Dawson, Toohey and McHugh JJ said:

As Lord Scarman said in Reg. v. Sang, every court is "in duty bound to protect itself" against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J. referred to them in Moevao v. Department of Labour in a passage which Mason C.J. quoted in Jago. The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice. As Richardson J. observed, the court grants a permanent stay:

"in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression."

[citations omitted]

146. Counsel made no attempt to identify the purpose of continuing the proceedings against Mr Forsyth that he claimed was "alien to the administration of justice under law", and, in sharp contrast to the facts in Williams v Spautz, there is nothing that I can see in the facts and circumstances of this matter that even hints at the existence of a purpose being pursued by the DPP other than the purpose of fulfilling its responsibilities under law. This kind of unfounded overstatement of Mr Forsyth's case, especially to the extent that it seemed to impute actual impropriety to the DPP, did not advance Mr Forsyth's case at all.

147. It is clear that limits on institutional resources played a role in the delays in this matter.

How are we to reconcile the demand that trials are to be held within a reasonable time in the imperfect world of scarce resources? While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for the available resources, this consideration cannot be used to render s 11(b) meaningless. The Court cannot simply accede to the government's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resource limitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources to prevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration of justice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. This period of time may be referred to as an administrative guideline.

149. Counsel for Mr Forsyth conceded that the Canadian approach to institutional delay was influenced by the constitutional guarantee that is not a feature of the ACT human rights framework (at [55] above).

150. Counsel nonetheless sought to establish the inadequacy of institutional resources by drawing attention to the Productivity Commission's annual Report on Government Services (ROGS), which at Chapter 7 sets out, and comments on, a variety of statistics relating (among other things) to the operations of the justice system in the various Australian jurisdictions.

151. On page 7.27 of ROGS 2011 (Steering Committee for the Review of Government Service Provision, Parliament of Australia, Report on Government Services (2011)), there is a description of the "Backlog indicator", which is defined as follows:

Box 7.8 Backlog indicator

The 'backlog indicator' measures the age of a court's pending caseload against nominated time standards. The number of cases in the nominated age category is expressed as a percentage of the total ending caseload.

The following national standards have been set:

The Federal Magistrates Court, magistrates' and children courts:

• no more than 10 per cent of lodgements pending completion are to be more than 6 months old
• no lodgements pending completion are to be more than 12 months old.

Supreme courts, the Federal Court, district/county, family and coroner's courts and all appeals:

• no more than 10 per cent of lodgements pending completion are to be more than 12 months old
• no lodgements pending completion are to be more than 24 months old.

Performance relative to the time standards indicates effective management of caseloads and timely accessibility of court services.

Time taken to process cases is not necessarily court administration delay.

Some delays are caused by factors other than those related to the workload of the court (for example, a witness being unavailable).

Data reported for this indicator are not directly comparable.

Data quality information for this indicator is under development.

152. Counsel drew particular attention to the "nominated time standards", being, for Supreme Courts, that:

• no more than 10 per cent of lodgements pending completion are to be more than 12 months old
• no lodgements pending completion are to be more than 24 months old.

153. Lodgement in this context appears to refer to lodgement in the relevant court -effectively, for matters committed to the Supreme Court, to the committal (ROGS 2011 Table 7.2).

154. While the "standards" used in the ROGS Report are no doubt something for courts to aspire to, they do not to my knowledge have any status except as a basis for reporting progress in dealing with caseloads. Nor do they, alone, indicate whether a large backlog reflects disproportionately low resources, some other problem or failure in the operations of a court, or external factors, whether relating to the community served or otherwise.

155. For Australian Supreme Courts, the backlog results as at 30 June 2010 in relation to criminal matters were as follows:

Backlog indicator - all criminal matters, as at 30 June 2010

156. The ACT's backlog results were not impressive compared with those of other jurisdictions, although they are comparable with the figures for Victoria (interestingly, the only other Australian jurisdiction with explicit legislative recognition of human rights), and only Western Australia and the Northern Territory actually meet the ROGS "standards". The results also need to be considered in the light of the commentary on these figures included in the definition of "Backlog indicator", particularly:

Some delays are caused by factors other than those related to the workload of the court (for example, a witness being unavailable).

Data reported for this indicator are not directly comparable.

157. It was not suggested that these nominated time standards have anything like the significance of the "guidelines" set by the Supreme Court of Canada in R v Askov in which Cory J, on behalf of four other members of the Court, and with whom the other members of the Court appear to have agreed in the relevant respect, said that "a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable" (at 1240). These figures were identified after his Honour had reviewed average timeframes for various stages of the criminal processes in various provinces and various districts within those provinces, and doubled the longest of the relevant waiting periods to allow for special circumstances in the district concerned.

158. In any case, it is apparent that once the delays wholly or partly attributable to Mr Forsyth's actions are excluded, the elapsed time between committal and trial fell well within the outer limit set by the "standard" of 24 months between Supreme Court lodgement and finalisation (although in opting for a judge-alone trial Mr Forsyth was also taking the risk that the trial would not provide an immediate verdict).

159. Counsel also drew attention to the 2010-2011 Annual Report of the Justice and Community Safety Directorate of the ACT Government. That Report made the following comments about efforts to address backlogs in the ACT courts (at 73):

Reducing Backlog in the Courts

Legislative and administrative measures have been taken to improve the efficient use of court resources.

The Courts Legislation Amendment Act 2011 was passed by the Legislative Assembly on 3 May 2011. This legislation will result in some matters which are more appropriately heard in the Magistrates Court rather than the Supreme Court, being allocated to the Magistrates Court.

The Act:

• provides that indictable offences punishable by imprisonment for not longer than five years will be dealt with summarily in the Magistrates Court, with consent of the DPP (when exercising this jurisdiction, the Magistrates Court may only impose a sentence of two years or less)
• increases the civil jurisdiction of the Magistrates Court from $50,000 to $250,000
• recognises existing listing arrangements by creating the Family Violence Court, and recognises the Galambany Circle Sentencing Court.

The Bail Amendment Act 2011 was passed on 15 February 2011 and commenced on 16 May 2011. This Act creates a balance between ensuring that the issue of bail is pursued properly in the Magistrates Court and allowing appropriate recourse to the Supreme Court.

On 23 June 2011, the Criminal Proceedings Legislation Amendment Act 2011 was passed. The Act will become effective in July 2011. The Act proposes the removal of the option of election for trial by judge-alone for all offences involving the death of a person and all sexual offences, including child pornography offences. While the aim of the Act is to ensure an appropriate role for the community in determining the most serious offences, it will also reduce the delays in determining such matters as jury decisions are not reserved.

Two Magistrates Court hearing rooms have been refurbished to serve as a third jury trial court room and jury deliberation room to allow more trials to proceed.

The Government funded additional temporary judicial resources in the 2010-11 Budget and appointed Bernard Teague AO, Jane Mathews AO and John Nield as acting judges for periods totaling the equivalent of one judge for nine months.

Timeliness of matters has improved during 2010. Backlog rates for both criminal and civil matters in the Supreme Court show a decline from 2009-10 to 2010-11. Finalisation rates for civil matters have improved in the same period. This points to new matters being dealt with in a timely manner. The provision of acting judges, falling lodgement rates due to reduced crime rates) and changes in jurisdiction, are expected to lead to an improvement in the clearance rate in the near term and backlog rates in the longer term.

160. Counsel is to be commended for his efforts to engage with the relevant statistics and to present a picture of the context in which Mr Forsyth's trial was delayed. However, in the absence of any basis for treating the ROGS "standards" as imposing some kind of expectations on the ACT government or on the courts, rather than providing a reporting framework in relation to court activity, and given the particular sources of delay in this case, it is hard to conclude that any of this information as such, or the comparisons it permits, established that Mr Forsyth's trial was unreasonably delayed. This is particularly the case given that the ACT's position, while worse, was not significantly worse than Victoria's.

161. Finally, I note the comments in Martin v Tauranga District Court [1995] 2 NZLR 419 (Martin) about institutional delays. Cooke P said (at 425):

A government failure to allocate adequate resources could not excuse clear breaches of the right to be tried without undue delay, and any restrictive expenditure policy would entail a risk that offenders might escape trial. But the measures being taken by the government are one factor to be weighed in deciding whether delay can fairly be described as undue. If it is clear that the government is conscious of a problem and is taking prompt steps to deal with it, any Court will naturally be reluctant to stay proceedings on the ground of systemic delay only.

162. In the current case, there had in fact been a significant, albeit short term, injection of extra resources into the Supreme Court at a key point in these proceedings, and that was well known, and specifically adverted to, at that key point, being the time when the first trial date was vacated. Mr Forsyth's failure to take advantage of the extra resources available at the time the first trial was vacated, by failing to appear at a pre-arraignment conference until those extra resources had apparently ceased to be available, cannot be overlooked in considering the significance of resource limits in this case.

163. As noted at [117] above, the pregnancy of Ms Slater was clearly outside the control of either party.

164. As already noted, the time that elapsed between Mr Forsyth becoming aware that proceedings against him were likely and the date fixed for his second trial, and also between the date on which he was summonsed and the date of that trial, was far longer than was either necessary or desirable. While Mr Forsyth was directly responsible for eight months of that delay, and indirectly but presumably innocently responsible for substantial further delays, a large proportion of the total delay was directly attributable to institutional problems, mainly affecting the Supreme Court. While it is clear that at the relevant time the government had made an attempt to deal with institutional delays in the Supreme Court, it also seems that the attempt had had only a very short-term impact on listing delays in that court.

165. In those circumstances, I concluded that, on balance, the delay in bringing Mr Forsyth to trial could properly be described as unreasonable.

166. With one exception, there was no specific basis identified on which to find that the delay in bringing Mr Forsyth to trial could deprive him of a fair trial. It seemed that all the prosecution witnesses had made statements to police quite soon after the incident. Within a day or so of the incident Mr Forsyth was aware that he would be summonsed in relation to the charge, so he was in a position to secure any evidence he might want to rely on, and he was also invited to take part in a recorded interview with police (an invitation which he declined).

167. The exception was that at one point Mr Forsyth's counsel claimed that there might be actual prejudice in connection with the identification of Mr Forsyth as the alleged offender. Counsel said that there had been no identification processes (eg an identification parade or the use of a photo board), and this meant that with their memories fading, the witnesses might reconstruct their identification evidence from the appearance of the accused in court. However, this submission did not go anywhere in particular after I put to Mr Forsyth's counsel, in the course of his submissions, that I had not yet heard any example of specific prejudice that would affect Mr Forsyth's listed trial. I note also, without pursuing the matter in this context, that the trial did not depend on, or even involve, a challenge to the proposition that Mr Forsyth was the person who had been involved in the altercation with the complainant.

168. Counsel also mentioned the scope for inferring prejudice from delay.

169. It is well accepted in Australia that delay between relevant events and the hearing of an action arising from those events detracts from the efficacy and fairness of the hearing.

170. In Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 (Brisbane South), McHugh J said at 551, in explaining the rationale behind limitation periods:

The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". (21) Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (22), "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.

171. It is hard to argue with his Honour's comments. However, the significance of assumed or inferred prejudice of the kind described will, it seems to me, differ at least between different kinds of cases and circumstances and perhaps even from individual case to individual case. McHugh J also identified three other aspects of the rationale for limitation periods, being the oppression of a defendant by extending the period of liability; the need for people to be able to organise their affairs on the basis that claims can no longer be made against them; and the public interest in disputes being settled as quickly as possible (Brisbane South at 552-3). The significance of prejudice, taken with those three other factors, for the interpretation of provisions permitting limitation periods to be extended is not necessarily the same as its significance in the criminal justice system, and nor in my view can it be assumed to produce identical or even equivalent presumptions or outcomes in the criminal context.

172. The criminal justice system recognises a range of competing priorities for which inferred prejudice has different implications. The importance of a fair trial (for all involved, but especially the accused) requires attention to the prejudice caused by delay - but not to the point that there are limitation periods for the prosecution of serious offences, such that prosecutions for serious offences are automatically unavailable after a specified delay.

173. Inferred prejudice is a matter to be taken into account, but it does not at any point necessarily override the interests in favour of the bringing and maintenance of criminal proceedings. This is shown, among other things, by the fact that a delay that might be found to be unreasonable in the context of bringing an accused person to trial would rarely justify a stay of proceedings if it occurred between the offence and the laying of charges (whether because of a late complaint or because of the time it has taken for an investigation to reach the point at which a charge can be laid against a particular person).

174. Pressed to identify prejudice, counsel for Mr Forsyth counsel pointed to recognition of the fact that prejudice may arise from the effect of delay on the accused as distinct from the effect of delay on his trial, and noted that the proceeding had been hanging over Mr Forsyth's head for an extended period. This kind of prejudice is sometimes referred to as prejudice to an accused's "security interest", reflecting the right to "security of person" (see s 18(1) of the Human Rights Act and Morin at 801 and 802).

Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage to reputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation".

... While the accused was not required to do anything to expedite her trial, her inaction can be taken into account in assessing prejudice. I conclude for this reason that the accused was content with the pace with which things were proceeding and that therefore there was little or no prejudice occasioned by the delay.

177. Counsel for Mr Forsyth noted that prejudice to the accused as distinct from prejudice to a fair trial is sometimes addressed by a sentence discount.

178. In the United Kingdom unreasonable delay is a breach of an accused person's right under the Convention, but the appropriate remedy will depend on matters such as the nature of the breach and all the circumstances, including the stage at which the breach is established. A stay will not be the appropriate remedy unless there can no longer be a fair trial, or it would be otherwise unfair to try the accused. That is, a stay will generally not be available where there is no unfairness. Thus it is necessary to show prejudice in the nature of unfairness of some sort to obtain a stay; other remedies may be available in the absence of prejudice (AG's Reference at [24]).

179. In Morin, Sopinka J, before referring to evidence showing or refuting the existence of prejudice (at 802-803), made the following comments about the link between prejudice and delay (at 801-802):

Section 11(b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. We have decided in several judgments, including the unanimous judgment in Smith, supra, that the right protected by s. 11(b) is not restricted to those who demonstrate that they desire a speedy resolution of their case by asserting the right to a trial within a reasonable time. Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. In the American concept of this principle, expounded in Barker v. Wingo, the inference is that no prejudice has been suffered by the accused unless he or she asserts the right. While the observation of Dubin C.J.O. in Bennett that many, perhaps most, accused are not anxious to have an early trial may no doubt be accurate, s. 11(b) was designed to protect the individual, whose rights are not to be determined on the basis of the desires or practices of the majority. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn. In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.

This Court has made clear in previous decisions that it is the duty of the Crown to bring the accused to trial (see Askov, supra, at pp. 1225, 1227 and 1229). While it was not necessary for the accused to assert her right to be tried within a reasonable time, strong views have been expressed that in many cases an accused person is not interested in a speedy trial and that delay works to the advantage of the accused. This view is summed up by Doherty J. (as he then was) in a paper given to the National Criminal Law Program in July 1989 which was referred to with approval by Dubin C.J.O. in Bennett (at p. 52) and echoes what has been noted by numerous commentators:

An accused is often not interested in exercising the right bestowed on him by s. 11(b). His interest lies in having the right infringed by the prosecution so that he can escape a trial on the merits. This view may seem harsh but experience supports its validity.

As also noted by Cory J. in Askov, supra, "the s. 11(b) right is one which can often be transformed from a protective shield to an offensive weapon in the hands of the accused" (p. 1222). This right must be interpreted in a manner which recognizes the abuse which may be invoked by some accused. The purpose of s. 11(b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. This position is consistent with decisions of this Court in regard to other Charter provisions. For example, this Court has held that an accused must be reasonably diligent in contacting counsel under Charter s. 10(b) (R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Smith, [1989] 2 S.C.R. 368). If this requirement is not enforced, the right to counsel could be used to frustrate police investigation and in certain cases prevent essential evidence from being obtained. Nonetheless, in taking into account inaction by the accused, the Court must be careful not to subvert the principle that there is no legal obligation on the accused to assert the right. Inaction may, however, be relevant in assessing the degree of prejudice, if any, that an accused has suffered as a result of delay.

180. I note in particular Sopinka J's comment that:

In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined.

[8] Section 25(b) of the New Zealand Bill of Rights Act 1990 guarantees to everyone who is charged with an offence "the right to be tried without undue delay". As Blanchard J said, when delivering the judgment of the Court of Appeal in R v Harmer:

"[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s 25(a)) but it is a distinct right whose purpose is also to minimise pre-trial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial. Consequently, delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge...

[131] Whether delay can said to be undue despite not affecting the fairness of a trial therefore falls to be determined on a case by case assessment of particular circumstances. The length and causes of delay must be considered..."

[9] The right to be tried without delay supports the separate and independent right to a fair trial because the longer the delay in getting to trial the greater the possibility that there cannot be a fair trial. But, as the passage from Harmer recognises, the court may be satisfied that the right to be tried without undue delay has been infringed although the accused has been unable to demonstrate any particular prejudice in defending the charges. That was the position in the present case.

[10] There are thus two distinct rights, the right to a fair trial and the right to trial without undue delay. The right to trial without undue delay is directed to the time that elapses between arrest and final disposition, including any appeal, whereas the right to a fair trial comes into play at the time of trial. The two rights overlap however where the consequence of undue delay in bringing an accused to trial is that a fair trial cannot be held. Both rights are then breached.

[citations omitted]

182. The Court referred to the approach adopted in Morin to ascertain unreasonable delay, and went on:

[11] In an earlier decision of the Court of Appeal, Martin v Tauranga District Court, Cooke P and McKay J had adopted the approach of the Supreme Court of Canada in R v Morin. That approach is to look at a range of factors, including the length of the overall delay, any waiver of time periods, the reasons for the delay (including time requirements, actions of the accused and the Crown, limits on institutional resources and any other reasons) and prejudice to the accused. It is important, however, to emphasise that there can be undue delay and a breach of that right without there being any prejudice to a fair trial. That is one of the reasons why, as we will mention again when considering the question of remedy, a stay is neither a mandatory nor a usual remedy for undue delay.

[12] Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. An accused may acquiesce in the delay, whether in the expectation that it will make the task of the prosecution more difficult or because it defers the day of reckoning. Notwithstanding the suggestions to the contrary of Hardie Boys and McKay JJ in Martin, there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.

[citations omitted]

183. That is, in New Zealand prejudice need not be shown before undue delay can be found, but prejudice will be relevant when remedies are considered.

Mr Gill submitted that the right to trial without unreasonable delay was not equated with the right to a fair trial. The right to a fair trial challenged by delay is not answered by the accused failing to demonstrate unfair prejudice. It is for the prosecution to demonstrate a lack of unfairness. That is not a novel concept. It applies even in civil proceedings (see Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541).

185. It is not clear whether his Honour was considering the right to a fair trial or the right to be tried without unreasonable delay, but if the issue was the right to be tried without unreasonable delay, it does not in my view advance matters to say that "It is for the prosecution to demonstrate a lack of unfairness", without clarifying whether a demonstration of a lack of unfairness is required to avoid a finding of unreasonable delay or to avoid the granting of a stay if unreasonable delay is found (or perhaps for some other purpose, although presumably not a purpose related to a common law stay).

186. In some other relevant jurisdictions there is no presumption that a stay is the appropriate remedy for unreasonable delay (at [178] and [182] above). The concept that was applied in Brisbane South does not even in civil proceedings raise a general presumption of a stay where prejudice can be inferred, but related specifically to the extension of limitation periods - as was pointed out in that case, the passage of time may cause prejudice even within the relevant limitation period (McHugh J at 555). I do not accept that Brisbane South can be relied on for the general proposition that "It is for the prosecution to demonstrate a lack of unfairness" in order to avoid a stay in any case where prejudice may be inferred from the passage of time.

187. Counsel for the Intervener referred me to the discussion of the significance of prejudice in R v Godin ([2009] 2 SCR 3), but given the different approach taken in Canada to the point at which prejudice is considered (in determining unreasonable delay rather than remedies), I do not consider that Godin is helpful in the immediate context.

188. In the ACT as in New Zealand, the right to trial without unreasonable delay is separate from the right to a fair trial, and therefore, counsel for Mr Forsyth argued, relying on Williams, unreasonable delay may entitle a person to a remedy even if no prejudice is shown. A remedy for unreasonable delay may also be available in the United Kingdom even where there has been no prejudice, despite the different context of the Convention right to trial without unreasonable delay (at [178] above).

189. Counsel's submission was correct as far as it went. Within the boundaries set by Part 5A of the Human Rights Act, unreasonable delay may entitle a person to a remedy even in the absence of prejudice. However, this does not mean that a person is entitled to any particular remedy in the absence of prejudice.

190. Under the Human Rights Act, there is no need to establish that a trial cannot be fair, to identify specific prejudice, or even to infer prejudice, before a finding can be made that there has been unreasonable delay in bringing an accused person to trial.

191. However, in the ACT a finding of unreasonable delay does not guarantee an accused person a remedy, because of the additional requirement to find unlawful disregard of the person's rights by a public authority; even if that can be established, unreasonable delay does not guarantee any particular remedy, or even lead to a presumption in favour of any particular remedy.

192. The only prejudice identified in this case was general inferred prejudice arising from such things as the failing memories of those involved in the 2007 incident and from the fact that the charge had been hanging over Mr Forsyth's head for several years. The significance of that prejudice was reduced by Mr Forsyth's contribution to delay and failure to pursue any kind of expedition of his trial.

193. I note first that, as mentioned at [81] above, I have for the purposes of this judgment assumed rather than found that the DPP is a public authority under the Human Rights Act.

194. In some jurisdictions, a finding of unreasonable delay may be enough to entitle a person to a remedy, but under the ACT human rights framework as I have analysed it, the availability of a remedy depends on a further finding that a public authority has acted unlawfully in relation to that delay.

195. It is thus important in the ACT context not to conflate the two questions of whether a human right has been breached (in this case, whether a trial has been unreasonably delayed) and whether a public authority has unlawfully disregarded that breach (in this case, whether the DPP has unlawfully disregarded the breach of Mr Forsyth's right to be tried without unreasonable delay).

196. In particular, the DPP is not to be confused with the executive, and is not (except in relation to the DPP's own resources) the body responsible for ensuring trials without unreasonable delay (at [82] above). This does not mean that a shortage of institutional resources could not cause an unreasonable delay that might be unlawfully disregarded by the DPP in pursuing a prosecution, only that an institutional resource shortage could not of itself amount to an unlawful act by the DPP. The DPP is only one of the bodies (not all of them public authorities) that are together responsible for ensuring the timely administration of justice.

197. Having found that Mr Forsyth's trial was unreasonably delayed, the next question to be considered was whether the DPP acted unlawfully in its role in the proceedings, by acting in a way that was incompatible with Mr Forsyth's human rights or by making a decision without giving proper consideration to Mr Forsyth's human rights.

198. In order to find that a public authority has acted unlawfully in relation to a breach of human rights arising from unreasonable delay, I would need to find, among other things, that the breach should have been apparent to the public authority; in the absence of such a finding, it is hard to see how one could reasonably find that the public authority had disregarded the human right. On the other hand, the expectation that public authorities will not act unlawfully seems to require public authorities to be alive to the possibility of human rights breaches even in the absence of specific claims or complaints.

199. Counsel pointed out that the DPP's Annual Report 2010-11 refers to the DPP's obligations in relation to human rights, saying (at 65):

Prosecutors are defenders of human rights. As "ministers of justice", they are obliged to ensure as far as they can that the criminal justice system respects the human rights of those involved in its processes. This traditional role of the prosecutor is re-enforced [sic] by the Human Rights Act 2004.

200. The DPP's comments are consistent with my suggestion at [198] above that public authorities are required to be alive to the possibility of human rights breaches, but does not imply any particular conclusions in the current matter.

201. However, it is important to note that the Human Rights Act in recognising a right to be tried without unreasonable delay does not impose any direct positive obligation on the DPP to provide a timely trial; what it imposes, via s 40B, is an obligation not to disregard the right to a timely trial in its own actions and decisions.

202. I accept counsel's submission that inaction may amount to "acting" in a way that is incompatible with a human right (indeed the Dictionary of the Human Rights Act defines "act" relevantly to include "fail to act and propose to act"). In a case in which maintaining a prosecution is incompatible with a human right, unlawful "action" could be constituted by, for instance, allowing a prosecution to remain on foot even without taking any particular steps (as might often be the case between when the trial is set down and when the pre-trial directions take place only a few weeks before the trial date). As an example of such "inaction", counsel pointed to a failure by the DPP to obtain a trial date earlier than 2012 after the 2010 vacation of the first trial. I would accept that a DPP failure to seek an earlier trial date might amount to unlawful "action" in some circumstances; I am not convinced that a failure to obtain an earlier trial date, a result ultimately outside the DPP's control, could as such be unlawful "action".

203. The more complicated question is to identify the point at which the maintenance of a prosecution becomes incompatible with a human right. The significance of identifying that point is that until the point is reached where maintaining the prosecution is a breach of the accused's human rights, it is hard to see how the DPP, whether engaging in positive actions or failing to act, could be said to have acted unlawfully.

204. Counsel for Mr Forsyth declined my invitation to identify when maintaining the prosecution against Mr Forsyth became unlawful. He did not assert that it was when the first trial was vacated because of what he asserted was prosecution incompetence, but he said that "perhaps" there were things the DPP should have done thereafter. In the end he said that perhaps it was enough that the DPP wanted to proceed when the trial date finally arrived.

205. It seems to me that where unreasonable delay arises primarily from the court's inability to list a trial within a reasonable period, the breach of the human right should be apparent when the trial is actually listed, not only as the scheduled date arrives. However, to the extent that the unreasonable delay and the resulting breach of human rights reflect a shortage of institutional resources, all or most trials being listed at that time are likely to be affected, and demands from the DPP for the court to provide expedited trials across the board are unlikely to be productive. In such a situation, and given that assessing the exact period required for "unreasonable delay" is not likely to be straightforward, it may be reasonable for the DPP to take the view that in the absence of any complaint from the accused, or any recognised risks to the fairness of the forthcoming trial, there is no general obligation on the DPP to take the initiative in, for instance, applying for an expedited trial. As noted, in a situation where all trials are affected by delay, the DPP may have good reason to expect that it will not be able to obtain expedited trials for all accused persons.

206. When I asked counsel for Mr Forsyth, in anticipation of a finding that the DPP had disregarded Mr Forsyth's right to trial without unreasonable delay, to suggest the form of a declaration by which I could acknowledge the unlawful action of the DPP, his response was along the lines that "the DPP shouldn't have sat on its hands and allowed the matter to continue in breach of Mr Forsyth's human rights". Counsel did not suggest that the declaration should refer to how the DPP should respond to institutional delays. As such, his suggested declaration seemed to me to amount to restating the problem rather than suggesting an answer. If the delays were attributable to a shortage of institutional resources rather than any particular failure by the DPP, then, as noted, there may be little or nothing that the DPP could have done to avoid acting unlawfully, except to prioritise all its trials and simply abandon those of lower priority.

207. In subsequent argument, counsel in effect submitted just that, saying that:

eventually a prosecution reaches the point where the Director's Office have to take a decision in order that they can act in accordance with human rights, they have to take the decision simply to file a nolle prosequi.

208. This may be where the difference in human rights frameworks becomes vital - in Canada, where as noted human rights are constitutionally protected, the case of Askov did result in the dropping of an enormous number of prosecutions because of the absence of resources to deal with them within the timeframes laid down by the Supreme Court. In Morin, Sopinka J said at 779:

We are asked in this appeal to re-examine the problem in light of the effect on the administration of justice of our decision in R. v. Askov, [1990] 2 S.C.R. 1199. Evidence presented to us indicates that between October 22, 1990 and September 6, 1991, over 47,000 charges have been stayed or withdrawn in Ontario alone. The reaction to this has been mixed. On the one hand many applaud the result which has in their view unclogged the system of much dead wood in the form of charges that should not have been laid or having been laid ought to have been dropped. This, they say, will enable the system to more quickly accommodate cases that are more pressing and lessen the period during which alleged criminals are free to roam the streets while awaiting trial. On the other hand, many others deprecate what in their opinion amounts to an amnesty for criminals, some of whom were charged with very serious crimes. They assert that accused persons are discharged when they have suffered no prejudice to the complete dismay of victims who have suffered, in some cases, tragic losses.

209. To put those figures in context, I mention that in 1990, the population of Canada was roughly 27,000,000.

210. I am not persuaded that the Human Rights Act was intended to drive the DPP to respond to shortages of institutional resources in the ACT courts by declining to proceed with a significant proportion of matters referred to it, not by reference to the strength of the various cases but by reference to a shortage of resources in the courts.

211. In the absence of guidelines laid down in reliance on a constitutional guarantee and therefore binding on the executive, I am not convinced that it is possible to identify any general obligation on the DPP to abandon prosecutions if a trial cannot begin within some unstated "reasonable" period. Indeed it may be that, far from there being such an obligation, adopting such an approach across the board could be in breach of the DPP's legal obligations, whether under the Director of Public Prosecutions Act 1990 (ACT) or otherwise.

212. Nor do I see a basis in the Human Rights Act on which to set guidelines for acceptable periods within which criminal processes must be completed. The approach apparently contemplated in that Act, namely that a remedy must be determined by the court in a particular case once a disregard of the relevant human right, by a public authority, has been identified, ensures that the competing individual and societal interests are weighed in the particular case.

213. In the context of whether the DPP may be required to abandon prosecutions because of the court's inability to provide trial dates that do not give rise to unreasonable delay, the DPP submitted that an accused person is not the only person whose human rights are protected by the Human Rights Act. The DPP submitted specifically that, for instance, the right under s 8 of the Human Rights Act to the "equal protection of the law without discrimination" requires the DPP, in considering the future of each prosecution it begins, to take account not only of the rights of the accused but also of the rights of complainants or victims. My preliminary response to this, in the absence of detailed argument or reference to any relevant authorities, is that it would be difficult to argue that such a general right as that set out in s 8 could override or outweigh the very specific rights that are conferred on accused persons.

214. As well, victims are entitled to the equal protection of the law in terms of their right not to be victims, in the sense that the law has proscribed the criminal conduct that has made them victims - it is however difficult to identify, at least in the Human Rights Act, a further set of rights conferred on victims relating to how offenders are dealt with. Despite my preliminary view that s 8 does not give a complainant or victim any particular rights to be set against the various rights specified as protecting accused persons, the legitimate expectations of complainants and victims that accused persons will be dealt with according to law do lend weight to my view that a shortage of institutional resources as such would not oblige the DPP to take the initiative and abandon as many matters as it considers necessary to ensure that there are no unreasonable delays in those trials that are left to be continued.

215. I am inclined to the view that in general it would not be possible to say that the DPP has acted unlawfully simply in maintaining a prosecution that is affected by delays applicable to all relevant ACT proceedings. Rather, there may need to be something about a particular prosecution, or about the particular delays affecting it, that the DPP should identify as raising a risk that maintenance of that prosecution would be unlawful because of a breach of the accused's human rights.

216. Even accepting that a failure to act may amount to action in breach of s 40B of the Human Rights Act (at [202] above), no specific disregard of Mr Forsyth's rights by the DPP was established.

217. Furthermore, despite having found that Mr Forsyth's trial was unreasonably delayed, I was not in the absence of argument able to make any findings about the time when it became apparent that the trial had been unreasonably delayed, and therefore the earliest point at which the DPP could or should have recognised the unreasonable delay and acted so as to give effect to that recognition.

218. Mr Forsyth's earlier lack of interest in expediting matters (especially before the first trial date was able to be set), combined with his failure to enable the second trial to be set down when it could have been given an early date and his apparent lack of complaint about the distant date eventually set for the second trial, would have provided a basis for the DPP to conclude that the delays in that particular prosecution were not unreasonable and that continuing with the prosecution was not in breach of Mr Forsyth's human rights.

219. In the absence of a finding of when Mr Forsyth's trial became unreasonably delayed, and given that the DPP could easily have been misled about whether there was unreasonable delay by Mr Forsyth's failure to object to the delayed trial date when it was set (despite the likelihood that Mr Forsyth was expecting a much earlier date), I was not satisfied that in this case the DPP had acted unlawfully as described in s 40B of the Human Rights Act in maintaining the prosecution against Mr Forsyth.

220. Although, for reasons set out above, the absence of a finding that the DPP acted unlawfully means that no basis for a remedy under Pt 5A of the Human Rights Act has been shown, it may be useful to make some general comments about what remedies might otherwise have been appropriate.

221. In AG's Reference, Lord Bingham said at [24] that for a breach of a Convention right "there must be afforded such remedy" as may be just and appropriate.

222. As well as a stay of proceedings, available remedies for unreasonable delay have been identified in other jurisdictions (AG's Reference at [24]; Williams at [19], adopting AG's Reference in this respect) as including:

(a) a public acknowledgment of the breach of rights;

(b) an expedited hearing;

(c) a grant of bail;

(d) a reduction in penalty; or

(e) where not excluded, damages for a person subsequently acquitted**.**

223. In the ACT, there is no requirement for a remedy to be provided in all cases. This is the clear implication of s 40C(4), which constrains the Supreme Court's power to grant "the relief it considers appropriate" by excluding the possibility of awarding damages. As well, the Human Rights Act says that the Supreme Court "may" grant relief, not that it must do so; s 146 of the Legislation Act 2001 (ACT) provides that when "may" is used in legislation in relation to a function (which is defined to include a power), "the function may be exercised or not exercised, at discretion".

224. Although s 40C does not give any examples of remedies that might be appropriate, there is mention in the Explanatory Statement for the Human Rights Amendment Bill 2007 (ACT) of a stay of proceedings as relevant under s 40C(2)(b) of the Human Rights Act. As well, the Attorney-General in the Second Reading Speech for that Bill (Legislative Assembly, 6 December 2007, 4030) said:

In line with the recommendation of the 12-month review and the Victorian charter, damages will not be available for a breach of the Human Rights Act. Rather, a finding of a breach could, for example, be a basis for setting aside an administrative decision or for a declaration that the public authority's actions breached [sic] were not in compliance with human rights.

225. I assume that the rather curious reference to "the public authority's actions breached were not in compliance with human rights" would have been better transcribed as, for instance, "the public authority's actions breached, were not in compliance with, human rights". Be that as it may, it is notable that the Attorney-General's comment seems to have assumed that a declaration made in the relevant context will identify both the public authority's failing as well as, presumably, the right that has been breached and the nature of the breach. In many cases, presumably, the public authority's action will in fact constitute the breach, but in the current context, the breach and the public authority's response may be distinct (whether because it is impossible to identify the exact cause of the breach, because the person or body responsible for the breach is not a public authority, or perhaps for some other reason).

226. There is a general recognition in the international authorities that a stay of proceedings is an extreme remedy which protects an individual accused person at the expense of the community's interest in bringing accused people to trial; in Morin, Gonthier J said at 808-809:

I concur in the reasons of Justice Sopinka and agree with the observations of Justice McLachlin underlining that in the final analysis the decision as to granting a stay must rest on a balancing of the prejudice suffered by the accused and the societal interest in bringing the accused to trial.

227. See also the judgment of McLachlin J in Morin.

228. Presumably because of the impact of stays on the community as a whole, there is a resistance to staying prosecutions purely on the basis of unreasonably delay, and an extra element of some sort is looked for, although this is not necessarily described as prejudice.

229. In the United Kingdom, the position is that a stay is only available where there could not be a fair trial or it would be otherwise unfair to try the accused (AG's Reference at [24]).

230. In Canada, where some prejudice (including inferred rather than proved prejudice) seems to be necessary before delay will be assessed as unreasonable (Morin per Sopinka J at 807-808), there is a recognition that even then the societal impact of staying a prosecution must be weighed in the balance before such a remedy is granted (at [226] above).

231. In Williams, the Supreme Court of New Zealand at [18] implicitly rejected the statement in Martin at 424-425 that "A standard remedy under the Bill of Rights for undue delay should logically be a stay" in saying, at [18]:

The remedy for undue delay in an accused coming to trial must provide a reasonable and proportionate response to that delay. A stay is not a mandatory or even a usual remedy. Staying the proceedings is likely to be the correct remedy only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a court to do so. If an accused is convicted after being on bail pending trial, a reduction in the term of imprisonment is likely to be the appropriate remedy. If the accused has been in custody, that time will count towards service of the term of imprisonment. In an extreme case, the conviction may be set aside. Upon acquittal, monetary compensation may be justified. The seriousness of the offending will usually not be relevant to the nature of the remedy. If, however, the offending is well towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay. [citations omitted]

232. The footnote to the sentence "A stay is not a mandatory or even a usual remedy." referred to the decision in Martin.

Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms is headed "Right to a fair trial". Part of art 6(1) in effect combines the s 25(a) guarantee of a fair trial and the s 25(b) right to trial without undue delay by providing that "everyone is entitled to a fair trial and public hearing within a reasonable time". The observations of Lord Bingham of Cornhill in Attorney-General's Reference (No 2 of 2001) as to the appropriate remedy for a breach of the entitlement to a hearing within a reasonable time are equally applicable to the right in this country to trial without undue delay: [citations omitted]

234. Also relevant is the Court's reference at [20] to comments made by Lord Bingham to the effect that:

... experience had shown that the practical effect of treating a stay as the necessary consequence of a breach of the reasonable time requirement is to subvert the right which the guarantee is designed to protect:

235. This, Lord Bingham explained (quoted in Williams at [20]), was because of:

... a very real risk that if proof of a breach is held to require automatic termination of the proceedings the judicial response will be to set the threshold unacceptably high since, as La Forest J put it in Rahey v R, 'Few judges relish the prospect of unleashing dangerous criminals on the public'. [citations omitted]

236. Finally in this context I note the comment of Hardie Boys J in Martin at 432 that "The right is to trial without undue delay; it is not a right not be tried after undue delay."

237. I accept that a permanent stay is a remedy available under s 40C; this is consistent with the international authorities, and also with the comment in the explanatory material for the relevant amendment of the Human Rights Act (at [224] above).

238. However, counsel for Mr Forsyth made several submissions generally aimed at persuading me that a stay should be accepted as more readily available in the ACT than elsewhere.

239. First, counsel for Mr Forsyth argued that in excluding any power to award damages under the Human Rights Act the legislature must have intended that a stay would be more readily available than in some other jurisdictions. There are in my view two weaknesses in this argument.

240. In AG's Reference, damages were identified as a possible remedy where, after a delayed trial, a person is acquitted, and in Williams, the court said at [18] that "Upon acquittal, monetary compensation may be justified". However, I am not aware that, in relation to unreasonable delays, damages are in other jurisdictions seen as an appropriate remedy for people who are eventually found guilty; in such cases a sentence reduction would seem to be the appropriate remedy. To the extent that damages are seen as a remedy for an acquitted person after a trial has been held, their exclusion from the ACT provisions has no logical connection with the availability of a stay of proceedings before a trial is held.

241. Secondly, as noted at [226] to [235], a stay deprives the community of its claim to see accused persons tried and their guilt determined. In that context, it would take more than the simple absence of one particular (albeit substantial) remedy to found an inference that the community's interests should be more readily disregarded in the ACT than in other jurisdictions where human rights are explicitly recognised and protected.

242. Counsel for Mr Forsyth made submissions that amounted to the proposition that a stay should be granted if it is the only effective remedy for the delay. I reject this submission for several reasons, the first being simply the indication from the overseas authorities that a stay is a last resort, to be granted for substantive reasons, and by inference not to be granted where any identifiable prejudice can be otherwise addressed, especially where it is the conduct of the accused that has excluded the possibility of providing any substantive remedy other than a stay. Thus, if a fair trial can still be held despite the delay, then an accused who fails to pursue other remedies such as an order for an expedited trial, at a point when such remedies could still be useful in addressing the delay or its consequences, has virtually no basis on which to argue the case for a stay.

243. Secondly, this submission begs the question of what "effective" means in this context. Certainly a stay is the only remedy that protects the accused from facing trial, but protecting an accused from facing trial as such does not seem to be the purpose of human rights legislation, at least where no prejudice or unfairness is shown. This fact would explain the approach common to the United Kingdom, Canada and New Zealand to the effect that a stay is a remedy of last resort and will rarely be appropriate, especially where:

(a) the delay has not caused prejudice; or

(b) any prejudice caused can be addressed in other ways.

244. It seems to me that a stay would also be an inappropriate remedy where there is prejudice that cannot otherwise be addressed but where that prejudice would also not be addressed by a stay. That is, a stay may be available where a stay will address a problem that ought to be addressed in a substantive way (whether that problem is identifiable prejudice or, for instance, egregious behaviour by a prosecutor). Where there is no such problem, or a stay would not address the problem anyway, a stay is unlikely to be available.

245. Counsel for Mr Forsyth made the rather odd submission that where prejudice can be identified as a result of delay, it may be able to be addressed by, for instance, appropriate trial directions, but that where no specific prejudice can be identified a stay is the only appropriate remedy.

246. I reject this argument. First, it is clear that a stay will never be the only available remedy, given the scope for the making of a declaration to the effect that delay has been unreasonable and that a person's rights have been unlawfully disregarded; counsel's argument that because it was hard to articulate what should be mentioned in the declaration, a declaration would not be an appropriate remedy, has in my view no substance.

247. Secondly, the proposition that a more substantial or more valuable remedy should be available to an accused person who can show no specific prejudice than to an accused person who has suffered identifiable prejudice is entirely counter-intuitive. This is especially the case since, unlike the kinds of remedies that might be available for the person who can demonstrate prejudice, the remedy proposed for the person who can show no prejudice would come at the expense of the community interest in having accused persons properly tried and either acquitted or found guilty and punished.

248. Noting the nature of the criteria for granting a stay discussed at [226] to [244] above, I do not accept that a permanent stay must be granted simply on the basis that there is no other way to respond to the unreasonable delay. Where real prejudice can be shown, and perhaps where a public authority or government appears to have disregarded a person's human rights cavalierly or in bad faith, a stay may be the appropriate remedy (although even this may depend on the accused's role in limiting the available remedies). Otherwise, in the absence of a power to award damages, a declaration identifying the breach of human rights may in many circumstances be both an adequate remedy and the only appropriate remedy.

Would a stay have been the appropriate remedy for Mr Forsyth?

249. Mr Forsyth's significantly delayed stay application meant that all the burdens imposed on Mr Forsyth by the period during which the matter was "hanging over his head" had already been suffered and could not be resolved, even by a permanent stay. Counsel, while conceding this, submitted that:

the message that would be sent with a stay of the proceedings would perhaps be a remedy to or a prevention, a stick ... to prevent the similar conduct of matters in the future in relation to other defendants, and I note that there is in the background of these human rights cases, Morin and the like, the issue of considering ... the broader impact of these decisions, not just in relation to the particular accused, but also in relation to accused more generally. So, that is a reason, in my submission.

250. Having regard to the impact on the community of staying a prosecution, and to my conclusions about the DPP's role in the delays in this case, a stay, to the extent if any that it provided a "stick" for the DPP that was in any way necessary or justified, would have come at far too high a price to the community.

251. The DPP made several submissions in opposition to any grant of a stay in this case, some of which need to be commented on despite my conclusion that a stay should not be granted.

252. First, the DPP argued that s 22(2)(c) does not create a "stand-alone" right, but recognises this right as an aspect of the right to a fair trial and that therefore no remedy is available if a fair trial remains possible despite delay. I reject this submission, by reference to comments of the kind made in Williams (at [181] above), but also because the drafting of the ACT Human Rights Act makes it clear that the right to a trial without unreasonable delay is a different right from the right to a fair trial, and that although the right to trial without unreasonable delay might overlap with the right to a fair trial in some respects, it is not subsumed in that latter right. For that reason, the question whether the trial can still be fair is not necessarily relevant to whether there has been unreasonable delay in bringing the matter to trial, although it might be relevant to remedies.

253. Secondly, the DPP argued that the exact words of s 22(2) of the Human Rights Act, being that the guarantees are expressed to be available to "Anyone charged with a criminal offence ... equally with everyone else" (emphasis added), mean that institutional delays affecting everyone charged in the ACT are not relevant to identifying what is "unreasonable delay". This qualification on the s 22(2) protections is not explained in the Explanatory Statement for the Human Rights Bill 2003 (ACT), and nor does it seem to have any counterpart in the equivalent rights as expressed in the United Kingdom, Canada or New Zealand. It does however appear to reflect Article 14.3 of the ICCPR, which provides that in the determination of criminal charges against a person, the person "shall be entitled to the following minimum guarantees, in full equality" (emphasis added). Fortunately, given that no submissions were made referring to the significance of the relevant words in the ICCPR, I do not need to reach any conclusion about the meaning of "equally with everyone else" in s 22(2), and that issue can be left for determination at another time.

254. If Mr Forsyth's stay application had been brought earlier, other relief for the delay might have been available (for instance, an order that the trial be expedited). If particular risks to a fair trial had been identified, I could have considered giving specific directions about the conduct of the trial, but as noted at [166] to [174] above, counsel conceded that there were no such risks.

255. However, the defence's failure to seek earlier relief, and its actions in further delaying the hearing of the stay application after it was finally made, so that an expedited trial was no longer available, in my view meant that Mr Forsyth would not have been entitled to a permanent stay even though by then there was no other substantive relief available.

256. For the reasons set out above, I considered, with some diffidence, that all told, the delays in bringing Mr Forsyth to trial were unreasonable in the sense of unjustifiable.

257. However, I was not satisfied that the DPP had acted unlawfully in relation to that unreasonable delay, and therefore was not satisfied that any remedy was available under the Human Rights Act.

258. Even if the DPP's failure to respond to the delay had amounted to an unlawful act, I would not have considered that the appropriate remedy was a permanent stay of the proceedings. Rather, I would have considered that an acknowledgment of the breach, and specifically of the institutional failures that had caused it, would have been an adequate remedy.

259. There is little practical difference between a finding that there has been unreasonable delay (as at [164] and [165] above) as the first step in determining an application for a stay, and a declaration acknowledging unreasonable delay and an unlawful disregard of that delay that is made under s 40C of the Human Rights Act as a remedy for the disregard and delay. Certainly my finding of unreasonable delay should not be ignored by the DPP, or by those responsible for providing resources to the courts, on the ground that it has not in this case resulted in the granting of a remedy under s 40C.

260. As well, the finding of unreasonable delay may have implications (either in accordance with the Human Rights Act or otherwise) in any sentencing of Mr Forsyth (see R v Klobucar SCC186/2010, 19 September 2013 (sentencing remarks)).

261. Counsel for Mr Forsyth indicated that the common law basis for a permanent stay was only relied on if the application based on the Human Rights Act was unsuccessful but that, if relevant, he would rely for the common law application on the principles set out in Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (Jago). The impact of Jago was summarised in R v Bui [2011] 5 ACTLR 230 by Refshauge J, who said:

27. A permanent stay of proceedings is a remedy available to prevent an abuse of the court's processes: Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 (at 96, 107, 116). This power is in aid of the courts' general power to prevent unfairness to the accused: Connelly v Director of Public Prosecutions (1964) AC 1254 (at 1347) per Lord Devlin.

28. The court may, instead of a permanent stay, grant a limited or conditional stay: Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (Jago) (at 32) per Mason CJ.

29. It seems to me that what the High Court has said in Jago is that a permanent stay should only be granted if:

(a) other remedies cannot effectively overcome the unfairness identified by the accused who is seeking the stay; and

(b) there is "a fundamental defect which goes to the root of the trial" (per Mason CJ (at 34)); an "abuse of process" (per Brennan J (at 53-5), by which his Honour appears to mean that the due process of the criminal courts are being used improperly to harass a defendant (at 54)); where "any trial of the [accused] would necessarily be an unfair one ... [and make any] continuation of the proceedings ... unfairly oppressive ... as to constitute an abuse of process" (per Deane J (at 61)); where "prejudice to an accused [is] so manifest that directions cannot ensure a fair trial" (per Toohey J (at 72)), or where there are "no other means ... available to remedy [the lapses of propriety] which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay" (per Gaudron J (at 78).

30. In summary, then, a permanent stay will only be ordered in extreme cases where there is a fundamental defect of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. See R v Glennon [1992] HCA 16; (1992) 173 CLR 592 (at 599) per Mason CJ and Toohey J.

31. In fairness, I note that Mr Whybrow accepted, and I hold, that the unfairness here did not rise to the necessary level for a permanent stay.

32. Nevertheless, the failure to disclose in a timely manner meant that the trial on 6 June 2011 would be unfair and the adjournment now means that the accused will suffer further delay in the proceedings. At the current state of the court's lists, it could be as much as fifteen months before a trial can be held. That will then be nearly three years since he was arrested. While not a delay that would justify a permanent stay, especially for such a serious offence, it is a serious matter that the court should not overlook.

262. Although I have found that Mr Forsyth's trial was "unreasonably delayed", Refshauge J's summary of the requirements for a common law stay makes it clear that in the absence of any identifiable prejudice or potential unfairness to Mr Forsyth, or of any basis for finding that the proceedings against him are an abuse of process, there was no basis at common law for permanently staying those proceedings.

263. For the reasons set out above, I refused Mr Forsyth's application for a stay of the proceedings against him.

I certify that the preceding two-hundred and sixty-three (263) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.

Appendix - Human Rights Act 2004 (ACT)

(1) Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

(2) However, the press and public may be excluded from all or part of a trial -

(a) to protect morals, public order or national security in a democratic society; or

(b) if the interest of the private lives of the parties require the exclusion; or

(c) if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.

(3) But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.

(1) Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

(a) to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge;

(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;

(d) to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her;

(e) to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;

(f) to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have the legal assistance provided without payment if he or she cannot afford to pay for the assistance;

(g) to examine prosecution witnesses, or have them examined, and to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses;

(h) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court;

(i) not to be compelled to testify against himself or herself or to confess guilt.

(3) A child who is charged with a criminal offence has the right to a procedure that takes account of the child's age and the desirability of promoting the child's rehabilitation.

(4) Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.

(1) Human rights may be subject only to reasonable limits set by Territory laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

(1) Each of the following is a public authority:

(e) a police officer, when exercising a function under a Territory law;

(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).

(2) However, public authority does not include -

(a) the Legislative Assembly, except when acting in an administrative capacity; or

2. a court, except when acting in an administrative capacity.

40B Public authorities must act consistently with human rights

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and -

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

public authority includes an entity for whom a declaration is in force under section 40D.

40C Legal proceedings in relation to public authority actions

(a) claims that a public authority has acted in contravention of section 40B; and

(b) alleges that the person is or would be a victim of the contravention.

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person's rights under this Act in other legal proceedings.

(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

(b) a right a person has to damages (apart from this section).

public authority includes an entity for whom a declaration is in force under section 40D.