R v Upton [2005] ACTSC 52

2. The order that I made was that the proceedings be stayed, and that the stay will become absolute unless a contrary order is sought by application by the Director of Public Prosecutions, such application to be brought on or before 26 August 2005. I further ordered that such an application would require the Director to indemnify the accused for costs incurred to date.

3. The matter proceeded upon the ordinary course with a committal hearing in the Magistrates Court in October 2002 and was listed for trial before me and a jury on 20 October 2003. The jury was empanelled, the trial commenced on that day and proceeded with the Crown case unfolding before the jury. It became apparent that there would be a real issue of fact for the jury in that, while the Crown case was that this was an unprovoked assault, it was put to Mr Riley that the incidents occurred during the course of Mr Upton seeking to remove him from Mr Upton's business premises when Mr Upton became aware that Mr Riley, an employee in Mr Upton's fireworks business, was engaged in illegal activities.

4. The trial recommenced on 21 October 2003. During the course of that morning I ordered that a member of the public be detained on suspicion of attempting to pervert the course of justice after it appeared that a witness was approached and certain material or information was sought to be put to the witness. I formed the view that a fair trial was no longer possible on that occasion and discharged the jury. I directed that information relating to the incident be reported to the Australian Federal Police.

5. The matter then lay until in October 2004 the Registrar directed that a pre-arraignment conference be held. The Director of Public Prosecutions there indicated, entirely properly, that the matter would proceed to trial. On 9 March 2005 the matter was set down for trial before me and a jury on 27 June 2005. On 29 March 2005 Mr Upton was arraigned and pleaded not guilty and the trial date was confirmed. The matter was listed for further directions on 7 June 2005. On that date the trial date of Monday, 27 June 2005 was again confirmed. The trial was listed to run for three days.

6. On 24 June 2005, the Friday before the trial was to commence, an application was made by the Director of Public Prosecutions to vacate the trial date. I was told that certain key witnesses were not able to be located. I took this to mean the persons said to be the victims of the assault. Mr Thomas, for Mr Upton, strongly opposed an adjournment of the trial. He submitted, properly in my view, that his client had prepared for and paid for his trial in October 2003, which for reasons entirely beyond his client's control, had to be terminated. He had then been preparing to meet the new trial date since at least March 2005 when the June trial date was allocated. He argued that the trial should proceed on Monday, 27 June and, if the Crown was not in a position to present evidence, a directed acquittal should be made.

7. It seemed to me that, if the trial was to proceed on 27 June, the inevitable result would be that a directed verdict of acquittal would be ordered. If the trial date was vacated, the consequence would be that Mr Upton would have incurred yet another round of substantial legal costs, having paid for the costs of the 2003 trial, and the costs of preparing for the 2005 trial, all in respect of two common assault charges and a charge relating to damage to a mirror on a motor vehicle said to have occurred in February 2002. Moreover, given listing matters, it seemed unlikely that trial dates could be allocated for a resumed trial before February 2006, some four years after the events in question.

8. There is clearly a power available to this Court to stay a criminal proceeding. As the High Court said in Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292 (per Mason CJ and McHugh J at 298) -

the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system.

9. In the absence of specific statutory provisions relating to the granting of stays in criminal proceedings, the source of this power must be found in the broad grant of jurisdiction to this Court in s 20 of the Supreme Court Act 1933 (the Supreme Court Act) that provides that -

(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.

10. It seems to me that an application for a permanent stay of proceedings in a criminal trial must necessarily involve an exercise of discretion, the source of which is the broad grant of jurisdiction conferred on this Court by s 20 of the Supreme Court Act. In construing the ambit of this power, it is necessary, as it is with any Australian Capital Territory statute, to bear in mind the provisions in s 30 of the Human Rights Act 2004 (the Human Rights Act) that -

(1) In working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.

11. There is ample authority for the proposition that at common law the right to a fair trial can be vitiated due to undue delay, and that delay can be a factor that can lead to a stay of proceedings. In Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, Mason CJ at 26, endorsed -

the proposition that, at least in cases of undue delay, the courts possess power to stay criminal proceedings in order to prevent "injustice" to the accused. Indeed, that view seems to have been accepted as long ago as 1844 in R v Robbins (1844) 1 Cox CC 114...

12. It seems appropriate to regard Jago as authority for the proposition that delay can affect the right to a fair trial, not that delay of itself must lead to an unfair trial. Gaudron J at 78 noted that -

there is no power to grant a stay of proceedings on the indictment in vindication merely of a claimed "right to a speedy trial".

13. Her Honour stressed that, while delay was a factor, actual prejudice to a fair trial was necessary in order to enliven the discretion to stay proceedings.

14. Toohey J adopted a similar view, and agreed that in that case no prejudice had been shown. His Honour noted (at 72) that -

There is more than one interest involved in the trial of the appellant. The Crown has an interest in bringing him to trial; he, of course, has an interest in obtaining a fair trial; running in parallel is the public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged.

15. In this Court, Higgins J, as he then was, ordered a permanent stay of criminal proceedings in Emanuele v Dau (1995) 78 A Crim R 242, a case where a person was arrested in November 1985, and a committal commenced in April 1988. The matter then proceeded over a number of years as a committal, until in October 1991 the Magistrate decided to proceed as a summary trial. The proceedings concluded in June 1992, and a decision convicting the appellant was given in November 1993. Higgins J noted the law as developed by the High Court in Jago, and further stated (at 251) that -

It is clear from the decision of Wilson and Grimwade [1995] VicRp 11; (1994) 73 A Crim R 190 that a protracted trail process may itself be so unfair as to require a conclusion that a person has not had a fair trial.

In that case his Honour set aside the conviction, and permanently stayed further proceedings. This decision was confirmed on appeal to the Full Federal Court in Dau v Emanuele (1995) A Crim R 197.

16. It seems to me that as a matter of common law, delay can be a factor that can enliven the discretion vested in this Court to order a stay of criminal proceedings, at least where there is prejudice to the accused by reason of the delay. In the Australian Capital Territory, with the passing of the Human Rights Act, it is necessary in construing any statute to adopt an interpretation of a statutory provision that is consistent with human rights.

17. The Human Rights Act sets out in s 22 (2) that -

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

...

(c) to be tried without unreasonable delay.

18. This right, it seems to me, must be taken into account in considering the exercise of the statutory discretion contained within s 20 of the Supreme Court Act to stay this prosecution. It seems to me that this must mean that the right to a trial without unreasonable delay, which is clearly enunciated in s 22(2)( c) of the Human Rights Act, may confer a greater power on this Court than the common law position.

19. That is not to say, however, that mere delay is of itself a ground under the Human Rights Act for staying a trial. That has certainly not been the approach taken to equivalent provisions of comparable human rights statutes in the United Kingdom and New Zealand, where the approach has been taken that delay does not of itself ensure that proceedings will be stayed, but rather that a stay of proceedings may be an appropriate remedy. The test applied is that of proportionality. As Lord Hobhouse stated in Attorney-Generals Reference (No 2) [2004] 1 All ER 1049 at 1086 -

a basic principle of human rights law is the principle of proportionality.

20. In that case the House of Lords was asked to rule on whether criminal proceedings may be stayed on the ground that there has been a violation of the reasonable time requirement in Art 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (as set out in Sch 1 to the Human Rights Act 1988) (the convention) in circumstances where the accused cannot demonstrate any prejudice arising from the delay.

21. The question was answered, in the leading judgment of Lord Bingham, in the following passage (at 1061):

If, through the action or inaction of a public authority, a criminal charge is not determined at a hearing within a reasonable time, there is necessarily a breach of the defendant's convention rights under art 6(1). For such breach there must be afforded such remedy as may be just and appropriate (s 8(1) of the Human Rights Act 1988) or (in convention terms) effective, just and proportionate. The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceeding unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and appropriate in all the circumstances.

22. The New Zealand Court of Appeal has held that a stay of proceedings may be an appropriate remedy when there has been an unreasonable trial delay contrary to s 25(b) of the New Zealand Bill of Rights Act 1990. In Martin v Tauranga District Court [1995] 2 NZLR 419 this was held to apply in a case where there had been a 17 month delay between committal and trial. Cooke P adopted the remarks of Sopinka J in the Canadian Supreme Court in R v Morin (1992) 71 CCC (3d) 1, where it was said:

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

(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.

23. I was mindful of these approaches in making the order that I made, which in effect stays the proceedings instanter, but does not make the stay absolute until 26 August 2005 and gives the Director the opportunity to recommence the proceedings by application before that date, provided that Mr Upton is indemnified by the Director, in effect on behalf of the community, for the costs that he has incurred in preparing for the 2003 trial that was abandoned through no fault of his own, and in preparing for the 26 June 2005 trial, that was vacated because the prosecution could not locate witnesses, notwithstanding that the trial date had been set for over three months.

24. I am mindful that the New Zealand Court of Appeal in Martin expressly stated that damages may be an alternative delay to a permanent stay. Richardson J said (at 427) that -

Where the delay has not affected the fairness of any ensuing trial through, for example, the unavailability of witnesses or the dimming of memories of witnesses so as to attract consideration under 25(a), it is arguable that the vindication of the appellants rights does not require the abandonment of the trial processes; that the trial should be expedited rather than aborted and the breach of s 25(b) should be met by an award of monetary compensation. That would also respect victims' rights and the public interest in the prosecution to trial of alleged offenders.

25. The order that I have made in this matter would allow the Director of Public Prosecutions to apply to have the stay not made absolute, provided Mr Upton is reimbursed for the costs he has incurred due to one trial being aborted in October 2003, and another trial date vacated in June 2005, and provided the Director can otherwise satisfy me that a fair trial can be held.

26. I note that an order to similar effect was made in the matter of R v Martiniello [2005] ACTSC 9, where a stay was made conditional on the prosecution reimbursing the accused for a trial vacated at short notice and which, on the evidence before me, had been set down when the prosecutor knew that certain evidence was not available.

27. It seems to me that this form of remedy is a proportional response to this case. I take into account the following factors:

* The offence is of a relatively low order, being common assault and damage to a motor vehicle. A different approach may be appropriate in a more serious offence.

* There is a clear contest of fact and recollection in the version of events of the crown witnesses and the accused.

* The offences allegedly occurred in February 2002. The next realistic trial dates would be in February 2006, some four years after the events.

28. Delay of itself inevitably creates a level of prejudice, in that memories fade. As McHugh J said in Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541 at 551 in the context of an extension of time application in a civil claim -

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 [1972] USSC 146; (1972) 407 US 514 at 532 "what has been forgotten can rarely be shown".

29. Mr Upton has been put to the cost of the earlier trial that was discontinued when a member of the public improperly interfered with a witness. This was not his fault and nor was it the fault of the Director of Public Prosecutions.

30. Mr Upton has now been put to the cost of preparing for the new trial date, which was vacated on the Friday before the trial when the Director informed the Court that witnesses were unavailable, in a matter that had been set down for trial for over three months.

31. In ordering a stay of proceedings, but providing the Director of Public Prosecutions with the option of taking the matter to trial again if Mr Upton's costs are paid, I have been mindful of the well established rule, confirmed in the Court of Appeal in Byrnes v Barry [2004] ACTCA 25, that this Court cannot generally make costs orders following the outcome of a criminal trial. As I indicated in R v Martiniello, I do not understand this rule to preclude me from imposing a costs requirement as a condition on a stay of proceedings.

32. The effect of my order is that, if the Director of Public Prosecutions is of the view that this is a case where the public interest demands that the matter go to trial, all that it needs to do is to recompense Mr Upton for the cost that he has incurred as a result of two trial dates that have been abandoned, through no fault of his.

I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Solicitor for the prosecution: ACT Director of Public Prosecutions