Nona v The Queen
[2012] ACTCA 55
HUMAN RIGHTS ACT
DENNIS MICHAEL NONA v THE QUEEN
[2012] ACTCA 55 (21 December 2012)
CRIMINAL LAW – Sexual offences against children – Delay in prosecution – Human Rights Act 2004 (ACT) s 22(2)(c) – Calculation of when a person is “charged”.
APPEAL – Jurisdiction, practice and procedure – Extension of time to appeal – Exercise of discretion in granting leave – Factors to consider – Justice between the parties paramount – Where appeal against conviction already commenced as of right – Appellate court to consider full range of justiciable issues – Extension granted.
APPEAL – Jurisdiction, practice and procedure – Application for leave to appeal against interlocutory order – Refusal to grant a stay interlocutory – General principles – Arrow International Australia Ltd v Group Konstrukt Pty Ltd – Where appeal against conviction already commenced – Matter of public importance – Leave granted in respect of older proceedings – Leave refused in respect of newer proceedings.
Human Rights Act 2004 (ACT), ss 22(2)(c), 30, 31, pts 4, 5A
Supreme Court 1933 (ACT), ss 37E(4), 37J(1)
Court Procedures Rules 2006 (ACT), r 5312
Canadian Charter of Rights and Freedoms, s 11(b)
European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953)
Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37
Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72
Deputy Federal Commissioner of Taxation v Yosemite Afforestation Pty Ltd (1988) 88 ATC 4505
Deweer v Belgium (1980) 2 EHHR 439
Eckle v Germany (1982) 5 EHRR 1
Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36
Gallo v Dawson (1990) 93 ALR 479
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478
Hatti v Germany (European Court of Human Rights, Commission (Plenary), Application No 6181/73, 20 May 1976)
Hughes v National Trustees; Executors and Agency Co of Australasia Ltd [1978] VR 257
Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127
Hall v Nominal Defendant (1966) 117 CLR 423
Jackamarra v Krakouer (1988) 195 CLR 516
Kalanj v The Queen [1989] 1 SCR 1594
Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427
Menzies v CRCI Pty Ltd [2007] NSWCA 118
National Exchange Pty Ltd v Brown (2004) 185 FLR 121
R v Alhakim (1999) 65 CRR (2d) 307
R v Mackintosh (1988) 26 BCLR (2D) 1
R v Meyboom (2012) 256 FLR 450
R v Nona (2012) 6 ACTLR 203
Spiers v Ruddy [2008] 2 WLR 608
Tampion v Anderson (1973) 3 ALR 414
Vilenius v Heiniger (1962) 36 ALJR 200
X v United Kingdom (European Court of Human Rights, Commission (Plenary), Application No 6728/74, 11 May 1978)
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. ACTCA 40 – 2012
No. SC 447 of 2009
No. SC 378 of 2010
Judge: Refshauge J
Court of Appeal of the Australian Capital Territory
Date: 21 December 2012
IN THE SUPREME COURT OF THE ) No. ACTCA 40 – 2012
) No. SC 447 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SC 378 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEENDENNIS MICHAEL NONA
Applicant
ANDTHE QUEEN
Respondent
ORDER
Judge: Refshauge J
Date: 19 December 2012
Place: Canberra
THE COURT ORDERS THAT:
The time within which the applicant may apply for leave to appeal against the decision of the Honourable Justice Burns given on 23 March 2012 be extended to 30 August 2012.
Leave to appeal be granted from the decision of the Honourable Justice Burns given on 23 March 2012 in respect of proceedings being The Queen v Nona No. SCC 447 of 2009 only.
The application for leave to appeal from the decision of the Honourable Justice Burns given on 23 March 2012 in respect of proceedings being The Queen v Nona No. SCC 378 of 2010 be refused.
The appeal in respect of which leave to appeal has been granted be heard with and at the same time as the appeal in Nona v The Queen No. ACTCA 33 – 2012 and that one appeal book be prepared for both appeals.
The applicant’s lawyers provide the Director of Public Prosecutions with a copy of the settled index for the appeal books on or before close of business on 21 December 2012.
The appeal books be filed and served on or before 10 January 2013.
IN THE SUPREME COURT OF THE ) No. ACTCA 40 – 2012
) No. SC 447 of 2009
AUSTRALIAN CAPITAL TERRITORY ) No. SC 378 of 2010
)
COURT OF APPEAL )
ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
BETWEENDENNIS MICHAEL NONA
Applicant
ANDTHE QUEEN
Respondent
Judges: Refshauge J
Date: 21 December 2012
Place: Canberra
REASONS FOR JUDGMENT
REFSHAUGE J:
Around September 1995, the applicant, Dennis Michael Nona, moved into his partner’s residence in Canberra. His partner had three children: two girls, one then aged 12 or 13 and one then aged 13 or 14, and one boy.
On 15 September 1996, police were called to the residence to deal with an alleged domestic violence incident between the applicant and his partner.
As a result of concerns police had arising from their attendance at the premises, they advised the applicant that further inquiries would be made.
Apparently, a few days later the applicant left Canberra and moved to an island in the Torres Strait in Queensland.
Soon after, one of the daughters of the applicant’s partner was taken to the Child at Risk Health Unit at Canberra Hospital. I shall call her the first complainant. It was discovered at the hospital that she was approximately 20–23 weeks pregnant. The pregnancy was, however, terminated but the foetus was retained.
Later, the applicant voluntarily supplied a sample of his blood which was taken on 29 January 1998 and was subject to DNA analysis. A DNA analysis was also made of material from the foetus and a forensic scientist concluded that “the probability of paternity for Dennis Nona is 99.988%, this means that paternity is practically proven”.
As a result, a brief of evidence was prepared for possible prosecution of the applicant and, on 30 July 1998, an information for a First Instance Warrant was sworn against the applicant for offences of sexual intercourse with the first complainant, she being a child aged between 10 and 16 years, and incest with a child aged between 10 and 16 years. The Warrant was never executed, even though the applicant’s whereabouts were known to police.
On 25 March 2009, summonses alleging these offences were served on the applicant requiring him to appear in the ACT Magistrates Court on 20 April 2009. On 3 December 2009, the applicant was committed to the Supreme Court for trial on these charges.
In 2010, the first complainant’s sister (the second complainant) made a number of statements to police officers in which she implicated the applicant in offences against her. Summonses were issued to the applicant on 29 September 2010, alleging those further offences.
An application made to this Court for a permanent stay of the proceedings in respect of both sets of charges against the applicant was heard on 11 November 2011. On
23 March 2012, the application was refused.
On 30 July 2012, the trial commenced of the first set of charges (those involving the first complainant) and, on 10 August 2012, the jury returned a verdict of not guilty on the first count and verdicts of guilty on the other four counts. The applicant’s bail was revoked. He has not been sentenced, but has appealed against the convictions.
As the Court ordered a Pre-Sentence Report after revoking the applicant’s bail, it seems to me that it accepted the verdict of the jury, which, as I noted in R v Meyboom (2012) 256 FLR 450 at 454–6; [19]–[30], was required for a conviction from which an appeal can be taken, and was proceeding with sentence.
The trial in respect of the second set of charges commenced on 18 September 2012.
On 21 September 2012, the jury was discharged after being unable to agree on a verdict. Those charges have, subsequently, been listed for re-trial to commence on
1 July 2013.
On 30 August 2012, the applicant filed an application in this Court for leave to appeal against the decision of the Supreme Court refusing the stay. Leave was required both because the decision was an interlocutory decision but also because appeals from interlocutory decisions have to be made within seven days after the day when the judgment has been given.
On 19 December 2012, I made appropriate orders and said I would give my reasons later. These are my reasons.
DECISION OF THE COURT BELOW
In the decision of the Court below, R v Nona (2012) 6 ACTLR 203, the Court considered two bases for whether a stay should be granted, one on the basis of the common law and the other on the basis of Human Rights Act 2004 (ACT). In relation to the common law stay application, the Court concluded (at 220; [71]–[72]):
Despite the quite appalling delay by the relevant authorities in commencing the proceedings concerning [the first complainant] I am not persuaded that the applicant will, or will be likely to, suffer relevant prejudice, that is, prejudice that will preclude him from obtaining a fair trial with respect to the charges concerning [the first complainant]. The delay in relation to the charges concerning [the second complainant] is just as significant, but the cause of the delay is not inaction on the part of authorities. I am similarly not satisfied that the applicant will, or is likely to, suffer relevant prejudice with respect to those charges. Some loss of memory on the part of the witnesses and the accused is inevitable after a lapse of between 15 and 17 years from the date of the alleged offences, but appropriate directions to the jury can ameliorate the prejudice that flows from this delay.
In each case there is a strong public interest in the charges continuing to trial.
In relation to the Human Rights Act, the Court considered s 22(2)(c) of that Act, which provides:
(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
The Court considered carefully the meaning of “anyone charged with a criminal offence”, and, after reviewing ACT, English and Canadian authorities, concluded (at 224; [91]–[92]):
After some consideration I have reached the conclusion that, for present purposes, the date for commencement of the calculation of delay with respect to the charges concerning [the first complainant] should not be the date the information was sworn for the First Instance Warrant. Whilst the laying of an information may for some purposes be considered to be the commencement of criminal proceedings, the applicant was unaware of both these events, so they could not occasion anxiety or concern on his part. Similarly, neither event resulted in pre-trial incarceration of the accused or any limitation on his liberty.
For the reasons I have given I consider the calculation of any delay with respect to the charges concerning both [the first and second complainants] should date from the dates the applicant was served with summonses alleging these offences. With respect to the charges concerning [the first complainant] this date is 25 March 2009. It is not clear precisely when the summonses concerning [the second complainant] were served on the applicant, but it appears likely that they were served in late September 2010 or shortly thereafter.
The Court then considered the matter further and concluded (at 225; [96]) that a stay is not automatic upon proof of breach of the section of the Human Rights Act. In this case, his Honour noted (at 225; [99]) that the actual delay of three years and four months “does not reveal egregious delay”. The conclusion of the Court was
(at 227; [105]):
I have found that the applicant’s rights under s 22(2)(c) of the [Human Rights Act] have been breached with respect to the delay in bringing on for trial the charges concerning [the first complainant]. What I have written in this judgment constitutes a public acknowledgment of that breach. Further, the charges concerning [the first complainant] are now listed for directions on
25 May this year with a view to bringing those charges on for trial before the presently allocated date in July this year. I am satisfied that these are appropriate remedies.
The approach that the Court below took to the application of the Human Rights Act was not entirely clear. No legislation was identified which was to be interpreted compatibly with the Act as required by s 30. Given that pt 4 of the Act, including
s 30, applies to “Territory laws” as defined in the Dictionary to mean “an Act or statutory instrument”, it appears that the Act does not apply to interpretation of the common law.
It may be that the Court was considering pt 5A of the Act, namely, the obligations of public authorities. The reasons for judgment do not reveal an identification of the relevant public authority or the approach to the consideration of the issue as identified in Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127. That may be important in this case for the relevant issues arose well before the enactment of the Human Rights Act and, in particular, pt 5A, and questions may arise in that context about the way in which it applies.
EXTENSION OF TIME
The decision of the Court below was, of course, an interlocutory decision. It meets the test laid down in Hall v Nominal Defendant (1966) 117 CLR 423 at 443, that it does not finally determine the rights of the parties. Indeed, orders granting a stay of proceedings in various circumstances have been held to be interlocutory: Tampion v Anderson (1973) 3 ALR 414; Deputy Federal Commissioner of Taxation v Yosemite Afforestation Pty Ltd (1988) 88 ATC 4505; National Exchange Pty Ltd v Brown (2004) 185 FLR 121. A fortiori, an order refusing a stay must be interlocutory.
Under s 37E(4) of the Supreme Court 1933 (ACT), an appeal against an interlocutory order made by a single judge of the Supreme Court can only be made with leave. An application for leave must be filed under r 5312 of the Court Procedures Rules 2006 (ACT) within seven days or such further time as the Court of Appeal allows. Under s 37J(1)(b) of the Supreme Court Act, a single judge may constitute the Court of Appeal for the purpose of deciding whether the grant “an extension of time to institute and appeal”. I am satisfied that this extends to an application for an extension of time within which to seek leave to appeal. If I am wrong, it is clearly encompassed with s 37J(1)(k) where the power of a single judge extends to “any other question of practice and procedure”.
The application for leave to appeal was filed on 30 August 2012. Since the order the subject of leave was made on 23 March 2012, it is well outside the seven day time limit. Indeed, the trial sought to be stayed has been conducted and concluded.
As McHugh J said in Gallo v Dawson (1990) 93 ALR 479 at 480, the decision as to whether to grant leave to appeal is a discretionary one given to the Court for the sole purpose of enabling the Court to do justice between the parties. It is, as noted in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd
[1978] VR 257 at 263 (a decision which, I note, McHugh J cited with approval), an unfettered discretion which should be exercised flexibly with regard to the facts of the particular case. As there also noted, the Court must determine whether justice as between the parties is best served by refusing or granting the extension of time.
One consideration, as noted in Vilenius v Heiniger (1962) 36 ALJR 200 at 201, is the vested interest that a respondent has to retain the judgment. Though this is more readily applicable to civil proceedings, the community does have an interest in a conviction following a trial by jury and the orderly and expeditious despatch of the criminal business of the Court.
Other factors, noted in Jackamarra v Krakouer (1988) 195 CLR 516, include the length of the delay, the reasons why the applicant did not comply with the time limit and any prejudice to the respondent or to the administration of justice.
In explaining the delay, counsel frankly admitted that his attention had only just been drawn to the significant authority, a decision of the Supreme Court of Canada, which suggests that the date for the purpose of calculating the delay under the Human Rights Act is at a much earlier date than had been identified. Until he was aware of that authority, counsel did not consider that the prospects of success on the appeal were such that leave should be sought.
That is not a strong ground and, standing alone may well have been insufficient for a grant of leave.
As I have noted below, however, the applicant has already commenced an appeal against the conviction. Thus, the ordinary processes of the Court have brought the decision before this Court for review.
The purpose of the grant of leave, as is also noted below, is to ensure that there are no procedural difficulties in having the full range of justiciable issues in this matter before the Court hearing the appeal.
In those circumstances, having regard to the relevant factors I have identified, I granted an extension of time to 30 August 2012 within which to apply for leave to appeal.
APPLICATION FOR LEAVE TO APPEAL
The basis of the application for leave to appeal is that the applicant’s lawyers have only recently identified significant authority that suggests the date for the purpose of calculating the delay under the Human Rights Act is at a much earlier stage than the Supreme Court identified.
That decision, to which counsel’s attention had latterly been drawn, is Kalanj v The Queen [1989] 1 SCR 1594. There, the Court considered whether the pre-trial delay in that case had breached s 11(b) of the Canadian Charter of Rights and Freedoms, which provides that “[a]ny person charged with an offence has the right ... to be tried within a reasonable time”.
The Court in that case was primarily concerned with determining when a person is “charged with an offence” within the meaning of s 11(b).
Although the words actually used in s 11(b) of the Canadian Charter and
s 22(2)(c) of the Human Rights Act are slightly different, it is clear that the intention of both provisions is relevantly identical. Under s 31 of the Human Rights Act, the decision of the Canadian Supreme Court is relevant to the interpretation of the Act and, indeed, is likely to be highly persuasive and of assistance in interpreting a relevantly identical provision.
In Kalanj v The Queen, McIntyre J, with whom La Forest and L’Heureux-Dubé JJ agreed, said (at 1602):
The word ‘charged’ or ‘charge’ is not one of fixed or unvarying meaning at law. It may be and is used in a variety of ways to describe a variety of events. A person is clearly charged with an offence when a charge is read out to him in court and he is called upon to plead. Many authorities support this view if authority is necessary: see R v Chabot [1980] 2 SCR 985, and the case is cited therein. A person could be considered in a general or popular sense to be charged with an offence when informed by one authority that ‘you will be summoned to court’ or upon an arrest when in answer to a demand to know what all this is about an officer replies: ‘You are arrested for murder’.
His Honour then considered the appellant’s argument. His Honour said (at 1605):
[T]he argument which the appellants have raised on this appeal is that they were charged within the meaning of s 11(b) on the date of the arrest, which was some eight months prior to the laying of the information.
His Honour then considered some authorities in support of that approach and referred to what was said by Macfarlane JA in the British Columbia Court of Appeal in R v Mackintosh (1988) 26 BCLR (2D) 1 at [22]:
It is plain that a person is ‘charged’ within the meaning of s 11, when a formal charge (information or indictment) is laid, and the accused is served with a process. That was so in Carter [v The Queen [1986] 1 SCR 981], Lamer J said (at p 985) of Carter:
The accused in this case was ‘charged’ as of the service of the summons pursuant to the laying of the information, which means that he was charged on January 28, 1983.
His Honour then concluded (at 1607–8):
In Carter, Lamer J, with the agreement of seven judges who heard the case, clearly stated that an accused was charged upon the swearing of the information, and Carter supports the view that the pre-charge delay is not a factor for consideration under s 11(b). To this extent, then, I am in agreement with the above quoted comments of Macfarlane JA in Mackintosh but, with respect, I do not agree with the majority in that case that ‘charged’ has a flexible meaning varying with the circumstances of the case. I would therefore hold that a person is ‘charged with an offence’ within the meaning of s 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. It would follow, then, that the reckoning of time in considering whether a person is being accorded a trial within a reasonable time under s 11(b) will commence with the information or indictment, where no information has been laid, and will continue until the completion of the trial: see R v Rahey, [1987] 1 SCR 588, at p 633, where L Forest J said:
The question of delay must be open to assessment at all stages of criminal proceedings, from the laying of the charge to the rendering of judgment at trial [emphasis added].
And see, as well, Argentina v Mellino, [1987] 1 SCR 536, at p 548, where the same judge said:
It gives a Charter remedy for delay when a prosecution has been initiated. [emphasis added].
Pre-information delay will not be a factor.
Other Canadian authorities have followed that approach. My attention was drawn to a decision of the Supreme Court of British Columbia in R v Alhakim (1999) 65 CRR (2d) 307 where the Court went further (at [7]) to note that a delay in executing a warrant could amount to unreasonable delay.
If this approach is adopted, then it is at least arguable that the laying of the information for the Warrant for the applicant’s arrest on 30 July 1998 may be the time when he has been charged for the purpose of s 22(2)(c) of the Human Rights Act, thus substantially increasing the delay.
Should leave be granted?
In Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37, I referred to the principles on which a court will grant leave to appeal as follows
(at [58]–[59]):
The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects (ACT) Pty Ltd and Anor v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows:
(a)leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;
(b)a court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c)decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d)the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e)the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f)leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is ‘attended with difficulty and [its] correctness is open to dispute’ (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and
(g)it may be a factor favouring the grant of leave that:
(i)the decision involves a matter of public importance; or
(ii)the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
I also noted (at 52; [29]):
It may be that these principles should be applied more liberally in the light of s 21 of the Human Rights Act 2004 (ACT) which expresses the right to a fair trial since an error in the interlocutory decision may have the effect of derogating from the fairness of the trial.
While there is, of course, only one judgment from which the appeal is sought to be taken, there are two sets of proceedings that were the subject of the application for a stay. Different considerations apply to each proceeding.
Proceedings numbered SCC No 447 of 2010
Taking first the proceedings commenced more recently, namely, those involving the second complainant, these were commenced on 29 September 2010, tried between
18 and September 2012 and are now to be re-tried on 1 July 2013. There was no serious challenge to the finding of the Supreme Court that such a delay did not justify a stay at common law or action under the Human Rights Act.
So far as these proceedings are concerned, I will refuse the application for leave to appeal.
Proceedings numbered SCC No 389 of 2009
Taking then the earlier proceedings, the matter is a little more complex. While the summonses for these proceedings were issued on 25 March 2009, and the trial commenced on 30 July 2012, it is argued for Mr Nona that, for the purposes of s 22(2)(c) of the Human Rights Act, the proceedings commenced on 30 July 1998 when the information for the Warrant was sworn. This is a delay of about 14 years to trial, quite a different matter.
The applicant has already, however, commenced an appeal against his conviction following that trial. The challenge to the Court’s decision refusing a stay of those proceedings could, I initially considered, be encompassed within that appeal. This is because a party may, on appeal, raise and challenge in the appeal any interlocutory decision made during the trial. In Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, Gaudron, McHugh and Hayne JJ said (at 482–3; [4]–[5]):
In the course of a trial, and even before the trial commences, interlocutory orders may be made which affect the substantive rights of the parties. Rulings that are made in the course of trial about which evidence will be admitted are an obvious example. To adopt a rule that precluded challenging any interlocutory order except by an appeal against that order would provoke unnecessary multiplication and fragmentation of proceedings.
It is not surprising, then, that in at least some circumstances, a party may challenge the correctness of the final judgment entered in a matter on the ground that some interlocutory decision was wrong. Again, evidentiary rulings provide the obvious example [Bunning v Cross (1978) 141 CLR 54 at 82, per Jacobs J]. As was said, in a very early judgment of this Court: [Crowley v Glisson (1905) 2 CLR 402 at 403, per Griffiths CJ]:
There is only one judgment of the Court appealed from ... and on the appeal all grounds that were taken by the appellant in the course of the proceedings are open to him.
As Griffith CJ had said earlier, in the course of argument in Nolan v Clifford [(1904) 1 CLR 429 at 431]:
On an appeal from a final judgment, all points raised in the course of the case are open to the unsuccessful party. If a point is decided against him on an interlocutory application, there is no need for him to keep on raising it.
The consequence of this would appear to be that, as Mr Nona has appealed against the conviction that was entered in the proceedings in respect of which the stay was refused, that order being an interlocutory order, he can challenge the conviction, inter alia, on the ground that the proceedings should have been stayed.
Accordingly, I gave Mr Nona leave to amend the Notice of Appeal in proceedings ACTCA No 33 – 2012 to include a ground that the Court below erred in refusing to order the permanent stay. The Notice of Appeal has now been amended accordingly and the hearing of the appeal listed for 15 February 2013.
The same approach to relying on interlocutory issues on appeal has been taken before. See, eg, Fairfax Media Publications Pty Ltd v Cummings [2012] ACTCA 36 at [83]; Arrow International Australia Ltd v Group Konstrukt Pty Ltd at [54]–[56].
That the refusal of a stay of proceedings is an interlocutory order of the kind that could be encompassed within an appeal against the final decision in the proceedings in which the interlocutory order is made appears clear enough from what Hodgson JA, with whom Tobias and Basten JJA, said in Menzies v CRCI Pty Ltd [2007] NSWCA 118 at [28].
Nevertheless, in Gerlach v Clifton Bricks Pty Ltd, Gaudron, McHugh and Hayne JJ continued as follows (at 438; [6]–[7]):
The proposition that any interlocutory order can be challenged in an appeal against the final judgment in the matter is often stated in unqualified terms: [see, e.g. Nolan v Clifford (1904) 1 CLR 429 at 431: ‘all points ... are open’]. The better view, however, is reflected in the formulation adopted in Spencer Bower, Turner and Handley [The Doctrine of Res Judicata, 3rd ed (1996), pp 79–80, par 170], where it is said that ‘on an appeal from the final order an appellate court can correct any interlocutory order which affected the final result’ (emphasis added).
It is necessary to make the qualification, ‘which affected the final result’, at least to reflect the well-established principle that a new trial is not ordered where an error of law, fact, misdirection or other wrong has not resulted in any miscarriage of justice.
A large number of cases have followed this decision and explored its limits. It seems to me that the exceptions have not been entirely limited to the qualification referred to in the passage quoted above.
A further apparent exception was explored in Michael Wilson & Partners Ltd v Nicholls (2011) 244 CLR 427. In that decision, Gummow ACJ, Hayne, Crennan and Bell JJ considered whether a litigant who applied for the trial judge to disqualify himself and then did not seek leave to appeal from that decision could later raise the issue in the appeal against the substantive final order. The question did not in fact arise in the proceedings, for the Court held that there was no basis for a finding of a reasonable apprehension of bias in respect of the trial judge.
Their Honours, however, addressed the question though they held (at 451; [86]) that the point raised need not be decided. They said (at 449–50, 451; [78]–[80], [84]–[85]), however:
In general, any interlocutory order which affects the final result can be challenged in an appeal against final judgment [Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 at 482–484 [4]–[7] per Gaudron, McHugh and Hayne JJ]. As the majority noted in Gerlach v Clifton Bricks Pty Ltd [at 484 [8]], there may be some limits to that general rule but it was not necessary in that case, and is not now necessary, to decide what those limits might be. The majority in Gerlach noted, however, that there are some kinds of interlocutory decision made otherwise than at trial that may present other issues. In particular, ‘[t]here are circumstances in which an interlocutory decision must be treated as concluding an issue between the parties’ and reference was made in that regard to O’Toole v Charles David Pty Ltd [(1990) 171 CLR 232 at 245 per Mason CJ] and Fidelitas Shipping Co Ltd v V/O Exportchleb [[1966] 1 QB 630 at 642].
In most cases, a judge's refusal of an application that the judge not try, or continue to try, a case on account of reasonable apprehension of bias will constitute a final determination by the judge that the facts and circumstances relied on by the applicant do not establish the relevant apprehension. In such a case, it may be that an applicant who does not seek to challenge the refusal by seeking leave to appeal should be held to have given up the point.
In this case, if the respondents were right in asserting that there was a reasonable apprehension of bias, the whole of the trial with its attendant expense and use of court time would be wasted. Of course it must be recognised that the respondents in this case had no right to appeal against the refusal of Einstein J to recuse himself. But the respondents did have a right to seek leave to appeal.
...
Whether failure to seek leave to appeal against refusal of an application that a judge not try the case on account of a reasonable apprehension of bias precluded maintenance of the complaint in an appeal against the final judgment would require consideration of whether the failure to seek that leave was reasonable. That would require examination of all relevant circumstances. Ordinarily those would include the stage the proceedings had reached when the disqualification application was made and refused and the consequences that would follow from leaving appellate determination of the issue of disqualification until after trial. In this case, trial was fixed to begin within a very short time after the refusal. How much time and money would be spent if the question were to be left over to an appeal against final judgment? The trial of this matter was expected to be very long. A lot of time and money would have been wasted if the judge who tried the proceedings should not have done so.
If it was reasonable in the circumstances of the particular case not to seek leave, and there was no other basis upon which a choice not to persist with the allegation of apprehended bias can be identified as having been made (either then or at some later time), the point would remain open in an appeal against the final judgment. But if it was reasonable in the circumstances to seek leave, and leave was not sought, why should it not be concluded, absent countervailing considerations, that the party making the complaint did not maintain the objection? Simply saying to the opposite party that it is sought to preserve the point for consideration in an appeal against final judgment would not of itself be effective to achieve that result.
Heydon J did not consider it necessary to consider this question.
While their Honours expressly indicated (at 451; [86]) that they did not decide the question, their reasoning, with respect, is compelling and I consider that I should accept this as a further qualification or exception or the general rule.
Accordingly, the question arises as to whether Mr Nona abandoned his rights in respect of the challenge he now seeks to make to the order of the Court below refusing a stay of the proceedings. In one sense, as frankly conceded by his counsel, he did so, since his counsel had formed the view that there was no basis to appeal until his attention was drawn to the Canadian authorities.
Thus, while I had permitted Mr Nona to raise the question of the stay in the appeal already commenced, it may be that the Court will find that, in failing to seek leave to appeal from that decision prior to the trial and which could have then been sought, he had waived any right to appeal.
I note that the decision on the stay was delivered on 23 March 2012 and that the trial commenced on 30 July 2012. There was, thus, time to consider and make an application for leave to appeal in that time.
The evidence was, however, that the lawyers for Mr Nona only became aware of the decision in Kalanj v The Queen on 27 August 2012.
While there is a basis for suggesting that there was some kind of waiver, it is appropriate to consider all the relevant circumstances.
Nevertheless, in order, then, to avoid further delay or difficulties with the proceedings, I will consider further the question of leave, having regard to the principles referred to above (at [33]).
The decision as to whether a stay is to be granted will clearly affect the substantive rights of Mr Nona. The question of when a person is charged for the purposes of
s 22 of the Human Rights Act is an important one. This is partly because, unlike the common law, the human rights jurisprudence makes it clear that the right to a trial without improper delay is a free-standing right and is not limited by a need to show prejudice. When interpreting the European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221 (entered into force 3 September 1953), Lord Bingham pointed out in Dyer v Watson [2004] 1 AC 379 at 401; [50], that “[b]oth the reasonable detention provision and the reasonable time requirement confer independent, free-standing rights. A violation of either right may be found in the absence of any prejudice to the fairness of the defendant’s trial.”
That does not necessarily mean, however, that a stay will be granted; that depends upon the circumstances. Some of the circumstances were discussed in Spiers v Ruddy [2008] 2 WLR 608. In Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72, the majority in the House of Lords held that the appropriate remedy depended upon the nature of the breach and all the circumstances, particularly the stage of the proceedings at which the breach is established.
The Canadian jurisprudence referred to above shows that there is an arguable case that an earlier time that that identified in the court below was when time started to run for the purpose of calculating delay.
That is not necessarily the English jurisprudence. In Attorney-General’s Reference (No 2 of 2001), Lord Bingham said (at 91; [27]):
As a general rule, the relevant period will begin at the earliest time at which a person is officially alerted to the likelihood of criminal proceedings against him. ... The Court of Appeal correctly held ... that the period will ordinarily begin when a defendant is formally charged or served with a summons, but it wisely forebore ... to lay down any inflexible rule.
The Strasbourg jurisprudence suggests that a person is subject to a charge when he or she is “substantially affected” by the proceeding against him or her. Such was held in Deweer v Belgium (1980) 2 EHHR 439 at [46]; Eckle v Germany (1982) 5 EHRR 1 at [73]. This is ordinarily when the charge is laid (Ewing v United Kingdom (1988) 10 EHRR 141; see also Hatti v Germany (European Court of Human Rights, Commission (Plenary), Application No 6181/73, 20 May 1976 at [50]) but may, where there is delay in charging the person, or a further charge is added, when the person becomes aware that “immediate consideration” is being given to the prosecution: X v United Kingdom (European Court of Human Rights, Commission (Plenary), Application No 6728/74, 11 May 1978).
Thus, while there is some European unanimity of approach, the Canadian approach shows divergence in international human rights jurisprudence.
As the matter is one of some public importance, especially given the state of the lists in the Supreme Court, it seems to me that leave to appeal should be granted in respect of the decision to refuse a stay of the proceedings involving the first complainant only but that these proceedings should be heard with and at the same time as the appeal and I made orders to that effect.
I also ordered that the one appeal book should serve both appeals, and made some consequential orders to ensure the appeal was ready to proceed.
I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 21 December 2012
Counsel for the appellant: Mr F J Purnell SC
Solicitor for the appellant: Porters Lawyers
Counsel for the respondent: Ms K Weston-Scheuber, Ms M Jones
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 5 September, 19 December 2012
Date of judgment: 21 December 2012
66