R v GZ [2012] ACTSC 183

R v GZ [2012] ACTSC 183 - ACTSC 2012 case summary — Zoe

[42]

It is an important mark of a civilised society that those charged with criminal offences are treated fairly, with appropriate respect, and that their rights are recognised and given full effect. In this Territory, that can be assisted by the legislated enumeration of rights set out in the Human Rights Act 2004 (ACT). There can, however, be a conflict between rights and that can sometimes be difficult or complicated to resolve.
In this case, the accused, GZ, was summonsed to appear in the Magistrates Court on 9 June 2009 to answer a charge that on 8 April 2009 he had sexual intercourse with a person aged 5 years old. After some adjournments, he was committed for trial to the Supreme Court on 21 October 2009. He was represented by a lawyer on each occasion he appeared in the Magistrates Court and, in particular, on the latter two appearances, on 12 August and 21 October 2009, by Mr S Gill of counsel.
On 26 August 2010, the Crown applied for an order that a certain audiovisual recording of an interview between police officers and the complainant be admitted into evidence as evidence-in-chief of the complainant. Mr Gill appeared for the accused on the application of Ms K Weston-Scheuber for the Crown. I granted the application on 16 September 2010. On 10 August 2011, the accused was arraigned. Mr Gill appeared for him and Ms Weston-Scheuber for the Crown.
I note the trial was listed to commence on 10 September 2012. There were other pre-trial matters and the trial ultimately commenced on that day when some further applications were resolved. The first witness was called on 11 September 2012. The jury retired on 14 September 2012 and on 17 September 2012 informed the Court that they were unable to agree on a verdict and they were discharged. The matter was re-listed for mention in my Court on 12 October 2012. On that date a new trial date was set.
Because of the workload of the Court, the first available trial date was 24 March 2014 and I listed it for that day.
Mr Gill, for the accused, raised the possibility that this listing would breach the accused's right to a trial without unreasonable delay and that an application for a permanent stay may be made. Later, through a plea by a co-accused in an unrelated trial, it became clear that the time for that trial - listed before me to commence on 26 November 2012 and proceed for three weeks - would not be fully needed and that this matter could be listed to commence on 10 December 2012.
As agreement could not be reached to list the trial on that date, the matter was listed before me on 9 November 2012. Mr S Gill appeared for the accused and

[60]

It is clear that at common law an accused has no right to counsel, although an absence of representation may render a trial unfair or so require that it be stayed, as in Dietrich v the Queen [1992] HCA 57; (1992) 177 CLR 292. A fortiori, an accused has, at common law, no right to counsel of his or her choice. So much was stated by King J in R v Williams [2007] VSC 2; (2007) 16 VR 168 at 178; [58].
While, as King J said in R v Williams at 179; [66], "[t]he court has always done what it could to attempt to accommodate counsel of choice", that is not a primary consideration, and the convenience of counsel cannot determine when proceedings may be listed, even if that means different counsel needs to be briefed, including in serious matters such as faced the court in R v Ngo [2001] NSWSC 887. See also to the same effect the High Court's approval in Sali v SPC Ltd [1993] HCA 47; (1993) 116 ALR 625 of the trial judge's comment that it was a long-standing practice of the Court that while it would do its best to meet the convenience of counsel, it would not delay access to the courts by other litigants by putting off hearings.
Indeed, as the Industrial Relations Court of Australia noted in Giarrusso v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123 per Ryan JR, that the convenience of counsel is the least important or relevant of considerations when an application is made for an adjournment.
I note, too, that in the context of the delay of which the accused complains, that the courts do not give great weight to the convenience of counsel when allocating a date for an expedited hearing: Vaughan v Dawson [2005] NSWSC 33 at [21].
The matter is, however, governed by the Human Rights Act 2004 (ACT) and the question arises as to whether the consideration is thereby different. In Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127, I considered the international jurisprudence and held (at 476; [90]) that there is no absolute right for a person legally aided to choose their lawyer. Indeed, I referred to a decision where the European Court of Human Rights had held that it was no breach of an accused's right to legal assistance of his choosing for him to be represented by a court appointed lawyer to which he objected: Croissant v Germany [1992] ECHR 60; (1993) 16 EHRR 135. See also R v Heemi (1998) 16 CRNZ 221.
This situation, however, is a little different in that so far as I am aware the accused is not a recipient of legal aid. Indeed, even were that the case, the lawyer representing him is not one to whom he objects. Even in those circumstances, the right cannot be absolute. As Jackson J said in R (on the application of Van Hoogstraten) v Governor of Belmarsh Prison [2003] 1 WLR 263 at 269; [38]:

[63]

The law is clear that the decision to fix a date for trial is discretionary, and that in choosing a date the court must act judicially and balance a number of factors including the availability of an accused's counsel of choice within a reasonable period of time. Many of the same factors come into play in decisions whether to adjourn a trial date in order to permit an accused's counsel of choice to be available. The emphasis is on the reasonableness of the delay involved in accommodating the accused's choice. If the counsel of choice is not available within a reasonable time then the rights of the accused must give way to other considerations and the accused will be required, if he or she chooses to be represented, to retain another counsel who is available within a reasonable period of time: see R v Lai [1991] OJ No 725 (Gen Div); Barrette v the Queen (1976) 29 CCC (2d) 189 (SCC) and R v Smith (1989) 52 CCC (3d) 90 (Ont CA).

In determining what is a reasonable period of time, the court will balance many factors including the reason counsel is not available sooner, the previous involvement of the particular counsel in the case, the public interest in having criminal cases disposed of in an expeditious manner, the age and history of the case, the availability of judicial resources and the best use of courtroom facilities, the availability of the complainant and witnesses, the availability and use of Crown counsel and the law enforcement officers, and the potential impact of the scheduling decisions on the rights of the accused under s 11(b) of the Charter guaranteeing a trial within a reasonable period of time. See Smith, supra, at p 93; Lai, supra.

There is no formula that can be rigidly applied in balancing these different factors and what is reasonable in one case may not be reasonable in another. Rigid rules defeat the very nature of the discretionary decision that is required. However, guidelines are helpful because they provide a framework within which decisions can be made and bring a measure of predictability to scheduling decisions that will assist the various participants in the process. It is the trial courts that are in the best position to assess and balance the circumstances and resources that are available in a particular region and to develop the guidelines that make the most sense for that region. Guidelines should be used as such and should not be applied in an arbitrary or inflexible fashion, particularly when a trial date is being set that will deny an accused person counsel of choice. See R v Shute (1982) 66 CCC (2d) 354 (NSCA).

At a glance

Court

Decision date

Source

Judgment (85 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (7)