R v GZ

Case [2012] ACTSC 183 12 November 2012

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HUMAN RIGHTS ACT

R v GZ
[2012] ACTSC 183 (12 November 2012)

HUMAN RIGHTS – Human Rights Act 2004 (ACT) s 22(2) – Right to counsel of choice – Right to trial within a reasonable time – Resolving conflict of rights – Factors to be considered – Where express waiver of reliance on unreasonable delay.

Evidence (Miscellaneous Provisions) Act 1991 (ACT)
Human Rights Act 2004 (ACT), s 22

Askov v The Queen [1990] 2 SCR 1199
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Croissant v Germany (1993) 16 EHRR 135
Darmalingam v Mauritius [2000] 2 Cr App R 445
Dietrich v the Queen (1992) 177 CLR 292
Doggett v United States (1992) 120 L Ed 2d 520
Flowers v The Queen [2000] 1 WLR 2396
Giarrusso v Ampol Petroleum (Vic) Pty Ltd [1994] IRCA 123
Goddi v Italy (1984) 6 EHRR 457
Hakimi v Legal Aid Commission (ACT) (2009) 3 ACTLR 127
Jago v District Court (NSW) (1989) 168 CLR 23
Martin v Tauranga District Court [1995] 2 NZLR 419
Pakelli vGermany (1983) 6 EHRR 1
Revenue and Customs Prosecutions Office v C [2010] Lloyds Rep FC 417
R v B; R v Parkes (1995) 13 CRNZ 377
R v Bui (2011) 5 ACTLR 230
R v Cheecham [2010] SKPC 20
R v Dew (2009) 247 CCC (3d) 487
R v Godin [2009] 2 SCR 3
R (on the application of Van Hoogstraten) v Governor of Belmarsh Prison [2003] 1 WLR 263
R v Heemi (1998) 16 CRNZ 221
R v Hill [2004] 2 NZLR 145
R v McCallen (1999) 43 OR (3d) 56
R v Mills (2011) 210 A Crim R 434
R v Morin [1992] 1 SCR 771
R v Ngo [2001] NSWSC 887
R v O [1999] 1 NZLR 347
R v Robillard (1986) 18 CCC (3d) 22
R v Speid (1983) 430 OR (2d) 596
R v Tremblay (1987) 37 CCC (3d) 565
R v Upton [2005] ACTSC 52
R v Wilding (2007) 229 CCC (3d) 507
R v Williams (2007) 16 VR 168
Sali v SPC Ltd (1993) 116 ALR 625
Spiers (Procurator Fiscal) v Ruddy [2008] 1 AC 873
Vaughan v Dawson [2005] NSWSC 33
X v the United Kingdom (1969) 15 AR 242

EX TEMPORE JUDGMENT

No. SCC 377 of 2009

Judge: Refshauge ACJ
Supreme Court of the ACT

Date: 12 November 2012

IN THE SUPREME COURT OF THE )
) No. SCC 377 of 2009
AUSTRALIAN CAPITAL TERRITORY )

R
v

GZ

ORDER

Judge:  Refshauge ACJ
Date:  12 November 2012
Place:  Canberra

THE COURT ORDERS THAT:

The matter remain listed for trial on 24 March 2014.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v GZ

Details

AGLC: R v GZ [2012] ACTSC 183
Case: [2012] ACTSC 183
Decision Date: 12 November 2012

CaseChat Overview and Summary

The case of R v GZ involved the defendant, GZ, who was charged with serious criminal offences. The dispute centred on the defendant's right to counsel of choice under the Human Rights Act 2004 (ACT) and his right to a trial within a reasonable time. The matter was heard in the Supreme Court of the Australian Capital Territory. The court was required to determine whether the defendant's right to a trial within a reasonable time could be overridden by his right to choose his own legal counsel, given that he had expressly waived his right to object to any delay in the proceedings.

The legal issues before the court were whether the defendant's right to counsel of his choice could be considered in the context of a reasonable time for trial, and if so, what factors should be taken into account in resolving any conflict between these rights. The court needed to consider the interplay between section 22(2) of the Human Rights Act 2004 (ACT), which protects the right to counsel of choice, and the broader principle of a trial within a reasonable time. Additionally, the court examined the implications of the defendant's express waiver of his right to object to any unreasonable delay in the proceedings.

In resolving these issues, the court found that the defendant's right to counsel of choice was an important consideration, but it did not automatically override the right to a trial within a reasonable time. The court emphasised the need to balance these rights and considered various factors, including the defendant's express waiver of the right to object to delay, the complexity of the case, and the potential impact on the administration of justice. Ultimately, the court concluded that the matter should proceed to trial, and it set a trial date to ensure that the defendant's right to a trial within a reasonable time was not unduly compromised.

The court ordered that the matter remain listed for trial on 24 March 2014, ensuring that the balance between the defendant's rights was maintained while also respecting the principles of timely justice.

Orders

Orders of the court

1. The matter remain listed for trial on 24 March 2014.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v GZ [2012] ACTSC 183

Most Recent Citation

Bateman v Fairfax Media Publications Pty Ltd [2013] ACTSC 72

Cases citing this decision · 2 of 2 shown

R v QX (No 2)
[2021] ACTSC 244 Para 1

…Relevantly, in R v GZ [2012] ACTSC 183; 229 A Crim R 1 ( R v GZ ) at [31] Refshauge ACJ, as his Honour then was, observed that:…
Bateman v Fairfax Media Publications Pty Ltd
[2013] ACTSC 72 Para 1

…of the courts to have much regard to the risk that a proper decision on the conduct of proceedings will lead to a change of practitioner (see R v GZ [2012] ACTSC 183 at [23]), means that this consideration, especially at a relatively early stage of the proceedings, and especially with little evidence to suggest an…

View all 2 citing cases →

Cases cited in this decision · 22 of 22 shown

Hakimi v Legal Aid Commission (ACT); the Australian Capital Territory (Intervener)
[2009] ACTSC 48 Para 10

…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…
Tomasevic v Travaglini
[2007] VSC 337 Para 6

…(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) 16 VR 168 at 178; [58].…
R v Upton
[2005] ACTSC 52 Para 1

…h Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. His Honour endorsed the approach followed by Connolly J in R v Upton [2005] ACTSC 52 in which his Honour had followed the decision of Cook P in Martin v Tauranga District Court [1995] 2 NZLR 419, where (at 424) the approach of Sopinka…
Vaughan v Dawson
[2005] NSWSC 33 Para 9

…d 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].…
R v Ngo
[2001] NSWSC 887 Para 7

…ceedings 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) 116 ALR 625 of the trial judge’s comment that it was a long-standing prac…
Brisbane South Regional Health Authority v Taylor
[1996] HCA 25 Para 1

…It also is similar to the situation in civil proceedings as outlined by the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. His Honour endorsed the approach followed by Connolly J in R v Upton [2005] ACTSC 52 in which his Honour had followed the decision of Cook P in Martin v Taura…
Robert Giarrusso and Transport Union Workers of Australia v Ampol Petroleum (Vic) Pty Ltd
[1994] IRCA 123 Para 8

…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.…
Sali v SPC Ltd
[1993] HCA 47 Para 7

…fed, 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) 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 couns…
Dietrich v The Queen
[1992] HCA 57 Para 6

…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) 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) 16 VR 168 a…
Jago v District Court (NSW)
[1989] HCA 46 Para 1

…the Court a greater power to respond to unreasonable delay than did the common law, the position of which was set out in Jago v District Court (NSW) (1989) 168 CLR 23. In particular, his Honour considered that the breach of the right to a trial without unreasonable delay required a remedy even if the trial would ne…
Heemi v R
[2022] NZHC 1616 Para 10

…stance of his choosing for him to be represented by a court appointed lawyer to which he objected: Croissant v Germany (1993) 16 EHRR 135. See also R v Heemi (1998) 16 CRNZ 221.…
R v Shute
[2023] NZHC 3835 Para 16

…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).…
[1990] 2 SCR 1199
[1990] 2 SCR 1199 Para 1

…ired a remedy even if the trial would nevertheless be fair. See, to the same effect, Darmalingam v Mauritius [2000] 2 Cr App R 445; Askov v The Queen [1990] 2 SCR 1199; Doggett v United States (1992) 120 L Ed 2d 520 .…
[1992] 1 SCR 771
[1992] 1 SCR 771 Para 1

…and the longer the delay, the stronger the inference. This certainly seems to be the Canadian approach in cases such as Askov v The Queen , R v Morin [1992] 1 SCR 771 and R v Godin [2009] 2 SCR 3.…
[1999] 1 NZLR 347
[1999] 1 NZLR 347 Para 1

…TLR 230) or, as granted in R v Mills , a permanent stay. See also Revenue and Customs Prosecutions Office v C [2010] Lloyds Rep FC 417 at [14]; R v O [1999] 1 NZLR 347 at 350–1.…
[1995] 2 NZLR 419
[1995] 2 NZLR 419 Para 1

…roach followed by Connolly J in R v Upton [2005] ACTSC 52 in which his Honour had followed the decision of Cook P in Martin v Tauranga District Court [1995] 2 NZLR 419, where (at 424) the approach of Sopinka J in R v Morin had been followed, namely, not by the application of a mathematical or administrative formula…
[2004] 2 NZLR 145
[2004] 2 NZLR 145 Para 1

…In New Zealand, a similar situation arose in R v Hill [2004] 2 NZLR 145, where the co-accused, Ms Turton, had made it clear at all times that she wished to retain a certain counsel. He had been appointed under Legal Aid since June 2001 at committal, but she made it clear that to retain him she would, if necessary, f…
[2009] 2 SCR 3
[2009] 2 SCR 3 Para 1

…tronger the inference. This certainly seems to be the Canadian approach in cases such as Askov v The Queen , R v Morin [1992] 1 SCR 771 and R v Godin [2009] 2 SCR 3.…
[2000] 1 WLR 2396
[2000] 1 WLR 2396 Para 1

…These are very similar to the issues identified by the Privy Council in Flowers v The Queen [2000] 1 WLR 2396.…
[2008] 1 AC 873
[2008] 1 AC 873 Para 1

…ily a stay of proceedings. It could include expedition, reduction of sentence, or compensation as identified by in Spiers (Procurator Fiscal) v Ruddy [2008] 1 AC 873 at 880, or reimbursement of legal costs as in R v Upton (see also R v Bui (2011) 5 ACTLR 230) or, as granted in R v Mills , a permanent stay. See als…
[2003] 1 WLR 263
[2003] 1 WLR 263 Para 11

…en 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]: [I]t is no business either of the court or of the defendant whom the claimant wishes to instruct to represent him in the criminal proce…
1 SCR 771
1 SCR 771

…1 SCR 771 and R v Godin [2009] 2 SCR 3.…

Legislation cited in this decision · 2

Human Rights Act 2004 (ACT)
22, 22(2) 3 mentions (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
1 mention