R v Mills [2011] ACTSC 109

4. The accused on 27 January 2010, filed an application for a permanent stay of proceedings. Submissions from the parties were filed, in writing, on 28 February 2011 and 4 March 2011 respectively.

5. The history of the matter was canvassed in affidavits from the respective solicitors. The trial of the charges was originally set for 28 July 2008 before Justice Penfold. That trial was aborted. The reasons for that are relevant and will be noted later.

6. A listing was given for a pre-arraignment conference on 30 June 2009. Notices were not given to all parties. It was therefore adjourned to 21 July 2009. It could not proceed on that date as defence counsel had another commitment and the prosecution had not obtained witness availability dates.

7. The next listing was 11 August 2009. Mr Saeedi, solicitor for the applicant, advised that representations were being made to the Office of the Director of Public Prosecutions seeking a permanent stay. Those representations had not been made as at 1 September 2009. They were received on 4 September 2009. On 22 September 2009, the prosecution sought an adjournment to allow for consideration of those representations. That issue was unresolved as at the next date, 15 October 2009.

8. The next conference was 29 October 2009. A trial date for 7 March 2011 was then allocated. This application was foreshadowed. Submissions were to be filed by 22 January 2010 and replied to by 12 February 2010. The application was in fact filed on 27 January 2010, being received by the respondent on 28 January 2010.

9. A statement as to fingerprint analysis of the seized drug packaging was forwarded to Mr Saeedi on 14 April 2010 with a statement that no DNA analysis would be done, though no reason was given for that decision. The pre-trial application commenced on 15 April 2010. Submissions in writing were exchanged, to be completed by 2 July 2010.

10. That date was vacated due to a death in the family of the counsel for the prosecution.

11. The matter was not relisted till 18 February 2011. Her Honour Justice Penfold ordered that the application for a stay be heard on 7 March 2011 with the trial to commence 8 March 2011 if that application failed.

12. In fact, her Honour could not hear the matter that day and it came before myself.

13. The Crown indicated that it was not proceeding on count 4. After hearing extensive argument I granted a stay on counts 1, 2 and 3 indicating I would later provide reasons. These are those reasons.

14. As it happened, the application was put by the accused only on the basis of unreasonable delay. That was founded on s 22 of the Human Rights Act 2004 (ACT) (the Human Rights Act), in particular on s 22(1)(c):

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

(c) to be tried without unreasonable delay.

15. In that context it should be noted that the first trial was aborted because the informant revealed in evidence that, whilst before trial the accused's representatives had been told that no fingerprint analysis of the bags containing the illicit drugs had been undertaken, he revealed that it had been undertaken but no useful detail had been discerned. That information had been revealed to the prosecution only shortly before trial but, by oversight, the accused's representatives had not been told of that. It further emerged that DNA analysis had been requested but was not yet done. That raised a possibility that such analysis might support the accused's assertion that the drugs were not hers but had been left where found by someone else. That would be the case if no DNA identified with the accused was found and if DNA inconsistent with her was found. If no DNA was identifiable, the accused's contention would be not disproved by reference to the state of the illicit drugs located.

16. Ms Jones, for the Crown, submitted that though the delay itself might be thought excessive, it should be considered in the light of the decision of the House of Lords in Attorney-General's Reference (No 2 of 2001) [2003] EWHC 2743; [2004] 2 AC 72. She referred to the head note, which accurately sets out the decision of the House:

(1) That if, through the action or inaction of a public authority, a criminal charge is not determined within a reasonable time there was necessarily a breach of the defendant's rights under article 6(I) of the Convention; that for such a breach there had to be afforded such remedy as was just and appropriate pursuant to section 8(I) of the Human Rights Act 1998; that the appropriate remedy would depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach was established; that (Lord Hope of Craighead and Lord Rodger of Earlsferry dissenting) it would be appropriate to stay or dismiss the proceedings only if either a fair hearing was no longer possible or it would be, for any compelling reason, unfair to try the defendant; that the public interest in the final determination of criminal charges required that such a charge should not be stayed or dismissed if any lesser remedy would be just and proportionate in all the circumstances; that in the absence of such unfairness the prosecutor and the court would not act incompatibly with the defendant's Convention right in prosecuting or entertaining proceedings after a breach had been established as the breach consisted in the delay which had accrued and not in the prospective hearing; that if the breach were established retrospectively it would not be appropriate to quash any conviction unless the hearing was unfair or it had been unfair to try the defendant at all; that the category of cases in which it might be unfair to try a defendant included cases of bad faith, unlawfulness and executive manipulation but was not confined to such cases; that, however, such cases would be exceptional, and a stay would never be an appropriate remedy if any lesser remedy would adequately vindicate the defendant's Convention right ....

(2) That as a general rule time would begin to run for the purposes of article 6(I) from the earliest time at which a person was officially alerted to the likelihood of criminal proceedings being brought against him; and that such period would ordinarily begin when a defendant was formally charged or served with a summons rather than when he was arrested or interviewed under caution ....

17. It was, Ms Jones submitted, not the case here that it was unfair to try the accused notwithstanding the delay that had occurred.

18. She pointed out that the cogency, or lack of it, of the evidence supporting possession or knowledge that goods were stolen, as the case may be, had not and could not have been affected by the delay. She referred also to Spiers (Procurator Fiscal) v Ruddy [2007] UKPC D2; [2008] 1 AC 873. It was held at 880 [16]:

The cases concerned a situation where there has (or may have) been such a delay in the conduct of proceedings as to breach a party's right to trial within a reasonable time but where the fairness of the trial has not been or will not be compromised. The authorities relied on and considered above make clear, in my opinion, that such delay does not give rise to a continuing breach which cannot be cured save by a discontinuation of proceedings. It gives rise to a breach which can be cured, even where it cannot be prevented, by expedition, reduction of sentence or compensation, provided always that the breach, where it occurs, is publicly acknowledged and addressed. The European court does not prescribe what remedy will be effective in any given case, regarding this as, in the first instance, a matter for the national court. The Board, given its restricted role in deciding devolution issues, should be similarly reticent. It is for the Scottish courts, if and when they find a breach of the reasonable time provision, to award such redress as they consider appropriate in the light of the Strasbourg jurisprudence.

19. It is there emphasised that the response to a finding of unreasonable delay is not necessarily a permanent stay. It may be, for example, a reduced penalty if guilt is found. That is so, even if a fair trial remains a possibility.

20. His Honour, Justice Connolly, in R v Upton [2005] ACTSC 52 considered that where a trial had to be aborted due to unavailability of some witnesses critical to the Crown case, it enlivened the provisions of s 22(1)(c) even if a stay might not have been granted under the common law rights acknowledged in cases such as Jago v The District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 and as applied by me in Emanuele v Dau (1995) 78 A Crim R 242. The remedy given was a stay conditional on payment of costs thrown away. A similar remedy was given by Refshauge J in R v Bui [2011] ACTSC 102. It was not a case of unreasonable delay but of lack of fairness of the proposed trial.

21. I agree with his Honour that the conferral of the right to trial without unreasonable delay "may confer a greater power on this Court than the common law position" (see [18]). I would go further, however. I consider it does so.

22. In saying that, I also agree that a breach of this provision does not confer a right to a stay. As his Honour noted, the test is one of proportionality, referring to Attorney-General's Reference (No 2) per Lord Hobhouse.

23. The difference between the common law right and that conferred by the Human Rights Act, in my view, is illustrated by the case of R v PJ [2008] ACTSC 100 in which I highlighted the difference of approach from other members of the Court taken by Kirby J in HML v R [2008] HCA 16; (2008) 82 ALJR 723. His Honour's approach was founded on Article 14 of the International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171, (entered into force March 23 1976), now relevantly replicated in s 22 of the Human Rights Act. The difference was whether a breach of a right to a fair trial required a retrial even if the breach would not have altered the outcome. In that case, of course, the rights conferred by the Evidence Act 1995 (Cth) (Evidence Act) did not attract the interpretive constraints imposed by the Human Rights Act.

24. However, the instant application does not rely on the provisions of the Evidence Act but on the rules of this Court. Hence s 22(1)(c) must be given full force and effect.

25. As Connolly J noted in R v Upton (supra), the standard to be applied in determining whether the right has been breached was discussed in Martin v Tauranga District Court [1995] 2 NZLR 419. Cooke P adopted the remarks of Sopinka J in R v Morin (1992) 71 CCC (3d) 1, that is:

The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay. As I noted in R v Smith (1989) 52 CCC (3d) 97 'it is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable? (at 105). While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows:

1. the length of the delay;
2. waiver of time periods;
3. the reasons for the delay, including

26. In Upton his Honour considered that a reimbursement to the applicant of his legal costs was a significant remedy. That took into account the relative lack of seriousness of the offence, the issues of fact in the case and the delay, likely to have been four years by the time of trial. The stay was granted conditionally upon payment by the Crown of those costs.

27. The prejudice from recollections faded by the delay, even if unable to be quantified, was also accepted as a factor favouring a stay.

28. That the accused had not caused or occasioned the delay was also considered to be a relevant factor favouring a remedy.

29. In the present case, the only live issue was whether the accused had placed the drugs where they were found or, as she asserted, her ex-partner had done so. In that context, the failure of the Crown to have tested the bags in which the drugs were found deprived the accused of positive support for her asserted defence. That, of course, did not preclude her prosecution. It is not unlikely that the DNA testing, if carried out, would have been inconclusive. The hypothesis for which the accused would contend not being positively disproved, a reasonable jury properly instructed might well not dismiss beyond reasonable doubt that contention, though it was open to them to do so.

30. 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) (Brisbane South).

31. Granted that the need for a re-trial in this case arose from a lack of communication within the prosecution camp, the subsequent delay in the listing of this re-trial could well be attributed to the lack of resources made available by the executive government to the prosecution and the courts to enable a more speedy re-trial. That is, of course, a continuing problem. For a matter to take more than four years (less one week) to come to trial after the decision to prosecute is, to my mind, prima facie unreasonable. As Mr Gill noted, citing Mansur v Turkey [1995] ECHR 19; (1995) 20 EHRR 535, once a reasonable time is exceeded the violation is "irretrievable". The question is as to the response.

32. As Hardie Boys J pointed out in Martin v Tauranga District Court (supra) there is no right not to be tried once undue delay has occurred. The question is what is the appropriate remedy in the particular circumstances of the case in question, if any.

33. In the present case, there are no onerous conditions as to custody or bail from which the applicant could be relieved. The trial date was already set for the next day. It could not be expedited further. A significant consideration is the prejudice to the accused if a stay is not granted balanced against the public interest in prosecuting criminal charges.

34. I also note that in Askov & Ors v The Queen [1990] 2 SCR 1199 the Supreme of Canada noted that undue delay was proscribed for several reasons:

• To prevent oppressive pre-trial incarceration (or limitation of liberty) continuing beyond what is necessary
• To minimise the anxiety and concern of the accused
• To limit impairment of or prejudice to the defence of the charges

35. The resolution of the question requires a balancing exercise weighing those matters against the societal interest in prosecuting offenders. The usual factors identified in Brisbane South (supra) are also relevant:

• Length of delay
• Reasons for the delay
• The accused's timely assertion of the right in question
• Prejudice to the accused

36. In the present case it was conceded that the accused had, at an early stage, given notice of intention to assert her right to a stay on the grounds of undue delay in the circumstances, including the lack of testing for possible exculpatory evidence.

37. I accept that, in the present case, the accused has been put to the anxiety and expense of preparing to face two trials. The adverse consequences of further delay or of adverse bail conditions are not present currently.

38. I also note that the prosecution has advanced no positive explanation for the delay occasioned by its failure to expedite the prosecution after the first aborted hearing. Further, the failure to either undertake forensic testing of the drug packaging or to explain, in a timely way, the impracticability of it is a concerning factor.

39. The delay of two and a half years from the first trial, in a relatively simple case is, to my mind, egregiously unreasonable, for whatever reason it might happen. Of course, if it was engineered by the accused against prosecution efforts to effect expedition, that would tend against any remedy being given.

40. Another factor is that, in the present case, the prosecution relies on a presumption to prove the aggravating factor of possession for the purpose of trafficking.

41. I accept Ms Jones' submission that merely because in circumstances of unreasonable delay, not occasioned by the accused, the fact that the only practicable remedy is a permanent stay of the proceedings does not mean that it must be awarded. It may be in some circumstances that no more than a declaration that delay has been unreasonable should be granted.

42. In the present case there was an 11 month delay between the aborted first trial and the matter being next listed for directions. It seems to me that this unexplained delay was clearly one the prosecution could and should have avoided.

43. As Ms Jones rightly submitted, it is not merely the Director of Public Prosecutions who bears responsibility for undue delay arising from listing delays. In the work, Human Rights Law and Practice (Third Edition) (Lord Lester of Herne Hill QC, Lord Pannick QC and Javan Herbert) at 4.6.49 (p 321) the authors comment:

... The state is, however, responsible for delays by its administrative or judicial authorities.

44. A failure to provide adequate resources will, if unreasonable delay results, be a breach of the human rights entitlements of litigants, civil and criminal, for which the state is then liable (see particularly 4.6.50 at p 322). The state cannot on the one hand, confer a right to trial without unreasonable delay and, on the other, provide insufficient resources for its exercise.

45. Ms Jones pointed to the appointment of acting judges in the latter part of 2010. That has had some impact on reducing delay. It is the kind of state response that may avoid breach of the right to trial without undue delay. It was, however, too late to avoid the delay suffered by this applicant. The government has also proposed legislative changes to require more cases of a minor nature to be heard in the Magistrates Court. Of course, it is ultimately for the legislature to decide those issues. The courts and the prosecution have to work within the framework established by law but it is the duty of the state to ensure a criminal justice system that enables the courts to offer trials without undue delay.

46. As the case of Guincho v Portugal [1984] ECHR 9; (1984) 7 EHRR 223 illustrates, even where a state has taken steps to address institutional delays in its court system, it does not thereby diminish the entitlement of a particular litigant to trial within a reasonable time.

47. In all the circumstances and for the reasons I have outlined above I determined that, on balance, the application for a permanent stay should be granted in respect of counts one to three of the indictment. The Director of Public Prosecutions has declined to proceed in respect of count four.

I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the respondent: Director of Public Prosecutions for the ACT