R v GZ - [2012] ACTSC 183

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 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

Ms M Jones for the Crown. Mr Gill opposed the matter being listed for 10 December 2012 and Ms Jones supported the listing on that day.
Mr Gill stated frankly that he would not be available on the offered date and that the accused wished him to appear, especially given his long involvement in the matter. Mr Gill pointed out that what the accused faced was a clash of two of the rights that he was given under the Human Rights Act. Section 22 sets out an accused person’s rights in criminal proceedings, in particular s 22(2) relevantly provides:
Anyone charged with a criminal offence is entitled to the following minimal guarantees equally with everyone else:
...
(c) to be tried without unreasonable delay
(d) to be tried in person, and to defend himself or herself personally, or through legal assistance chosen by him or her.

It was submitted that if the accused were to be tried in proceedings commencing on 10 December 2012 that his right to be tried without unreasonable delay would be respected but his right to be defended through legal assistance chosen by him would be breached. If he were tried in proceedings commencing on 24 March 2014 then he would be represented by counsel of his choice but there would, it was submitted, be unreasonable delay.

Mr Gill referred me to R v Mills (2011) 210 A Crim R 434, where Higgins CJ granted a permanent stay of criminal proceedings on the grounds of unreasonable delay. There the accused had been arrested on the charge of trafficking in a controlled drug. The trial was originally listed to commence on 28 July 2008 but was aborted because the informant revealed in his evidence information about some evidence that contradicted what the accused’s legal representatives had been told and further that some forensic analyses had been requested but the results not yet received.

Higgins CJ considered that the Human Rights Act conferred on 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 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.

It may be, however, that the correct position is that prejudice can be inferred from the delay 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.

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 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 but by a judicial determination in which the interests that the section was designed to protect are balanced with the factors which either inevitably lead to delay or are otherwise the cause of delay.

Sopinka J identified the factors to be considered as being the following:

(1) the length of the delay;

(2) waiver of time periods;

(3) the reasons for the delay including:

(a) the interests and time required of the case, actions of the accused, actions of the Crown, limits on institutional resources; and

(b) other reasons for delay; and

(4) prejudice to the accused.

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

The remedy, however, was not necessarily 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 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.

In R v Mills, Higgins CJ also noted that the failure to provide adequate resources such as enough judicial officers to conduct enough trials in a timely fashion is no answer to the claim of delay. His Honour said (at 440; [43]–[44]):
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 (3^rd ed, LexisNexis, 2009) (Lord Lester of Herne Hill, Lord Pannick QC and Jarvan Herberg) at 4.6.49 (p 321), the authors comment:
... The state is, however, responsible for delays by its administrative or judicial authorities.
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 particular 4.6.50 at page 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.
This appears to be an approach also adopted in New Zealand in R v B; R v Parkes (1995) 13 CRNZ 377 at 380.
Indeed, it has even been held that adverse weather conditions which cause delay can weigh against the Crown: R v Cheecham [2010] SKPC 20.
Whether the circumstances here would amount to a delay that required as a remedy a permanent stay of proceedings is a matter of some complexity. It appears, however, that such a case may well be able to be made out. The remedy in that case, however, would be to list the proceedings on 10 December 2012. That would be a proportionate and appropriate remedy.
Mr Gill for the accused, however, submitted that this would interfere with the accused’s right to counsel. In this regard I note, lest there be any suggestion that the accused was not aware of this choice, that the accused was present in Court during argument on the application.
Mr Gill who, as the summary of the proceedings I have outlined above shows, has been involved actively in the proceedings from an early stage of them, is not available to commence the trial on 10 December 2012. He indicated to the Court that the accused wished him to represent him at the trial. He was his choice of counsel.
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) 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].
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) 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 (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]:
[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 proceedings. Of course the claimant cannot engage an excessive number of lawyers, or change his legal team with undue frequency.
Similarly, an accused can legitimately be denied counsel of choice where there is an ethical prohibition on the counsel acting: X v the United Kingdom (1969) 15 AR 242 at 243–4. See also R v Speid (1983) 430 OR (2d) 596 at 598–600 and R v Robillard (1986) 18 CCC (3d) 22 at 26.
Of course, where an accused wishes to exercise his or her right to counsel of choice, the right must be exercised diligently: R v Tremblay (1987) 37 CCC (3d) 565. Thus, as was said by Steel JA (with whom Monnin and Hamilton JJA agreed) in R v Dew (2009) 247 CCC (3d) 487, the right of an accused to retain counsel must not be used as a weapon to unnecessarily delay court proceedings.
Another consideration is the point in time at which counsel of choice is to be retained. Thus, if it is at trial, it is far more significant to lose counsel of one’s choice and who has been involved in the proceedings up to that date than it is at an earlier stage such as the investigative stage or at committal: see R v Wilding (2007) 229 CCC (3d) 507 at [13].
Nevertheless, the Court bears the responsibility of controlling proceedings and ensuring that fairness to all, the accused, the witnesses, especially the complainant, the Crown, other litigants and the community is ensured and to preserve integrity of the trial process: R v Dew at [17]. Within this context, it is clear from decisions such as Pakelli vGermany (1983) 6 EHRR 1 and Goddi v Italy (1984) 6 EHRR 457, that the general rule is that the accused’s choice of lawyer should be respected though not absolutely.
In this case, the Court could override the choice of counsel. There is, however, no clear jurisprudence on this issue. In R v Williams at 180–1; [70], King J referred to the Canadian decision of R v McCallen (1999) 43 OR (3d) 56 at 69; [45]–[47]. I will quote the relevant passage in full:
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).

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, forego legal aid and fund the trial privately through family resources.

On 14 August 2001 in counsel’s presence a tentative date for trial to commence on 15 October 2001 was set. On 5 September 2001 Ms Turton’s counsel became aware that the trial might be moved forward to 8 October 2001 when he would not be available because of a long standing professional commitment. Ms Turton, however, was adamant that she wanted him to appear for her, but the Court refused an adjournment from 8 October 2001, and Ms Turton’s preferred counsel returned that brief and alternative counsel was briefed.

Ms Turton fell out with him over advice he offered which was different from that proffered by her preferred counsel. She ultimately dismissed the alternative counsel, by which time he had, in any event, formed the view that the differences between them prevented him from representing her. Regrettably at an unspecified time the trial date in fact reverted to 15 October 2001, by which time it was clearly too late for Ms Turton’s preferred counsel to be briefed again. Ms Turton was then unrepresented and took little part in the trial. She was convicted.

The Court of Appeal carefully considered the situation and accepted (at 163; [76]) that there was no fault on Ms Turton’s part that amounted to a waiver of her right to representation. The Court accepted that for her to gain representation would have resulted in the adjournment of her case and a severance of the trial, which may well have been undesirable. The Court accepted that it was a difficult decision, but held (at 163; [78]):

Ms Turton was entitled to separate legal representation under s 24(c) or (f) [of the New Zealand Bill of Rights Act] in circumstances where she wished to be represented and the absence of available representation could not reasonably be attributed to fault on her part. The effect of the refusal of the adjournment was to deprive her of legal representation, and we are satisfied that the Judge was plainly wrong to have done so.

The Court concluded (at 167; [100]):

Ms Turton has established that the absence of legal representation in her case is a breach of the right guaranteed by s 24 of the [New Zealand Bill of Rights Act] and that the breach led to a miscarriage of justice.

The situation is not on all fours here, but there are some similarities. The accused here has been represented by the same counsel since well before committal. Indeed, though different from Ms Turton’s case, he has been represented by the same counsel through a trial which ended inconclusively when the jury could not agree.

There is only a month before the new trial date, and though there may be competent counsel who could be instructed, that has not actually been established, for example by the Crown making appropriate enquiries and informing the court of them.

I take into account the following matters:

(1) Mr Gill, as noted above, has been involved in the matter from a very early stage including, as noted, the earlier trial.

(2) I understand that, not unexpectedly, Mr Gill is involved in other criminal proceedings which will also suffer were he to be required to prefer these proceedings to those. It is not that his unavailability is due to a non-professional engagement.

(3) There is, of course, a public interest in having such proceedings dealt with as expeditiously as possible.

(4) The alleged acts are said to have occurred in 2009. While that is some time ago, it does not seem to me that it is, in the circumstances, such a delay as impels the date of 10 December 2012 to be mandated.

(5)Although the delay till 2014 will be very significant, Mr Gill has, on behalf of the accused and in his presence, expressly waived any reliance on unreasonable delay in the current trial date in 2014 on the basis that the accused person has chosen to prefer his right to counsel of choice over the right to a trial without unreasonable delay in the event that the trial is not listed to proceed on 10 December 2012.
(6)The charges are very serious, likely to result in a sentence of imprisonment were the accused to be convicted.
(7)The evidence of the child complainant, including evidence-in-chief, cross-examination and re-examination has been recorded in accordance with the Evidence (Miscellaneous Provisions) Act 1991 (ACT), and the complainant will not need to be called personally to give evidence at the re-trial.
(8)As it happens, Crown counsel who has been involved in the matter for a very long time will also not be available on 10 December 2012.
(9)No difficulty has been indicated to me to suggest that any of the relevant witnesses will be unavailable in 2014.

To adjourn until 2014 is, at the very best, extremely unfortunate. The resources available to this Court at present make that inevitable but very undesirable. This is not an easy decision. The availability of an early date is very desirable, indeed, seductive. Nevertheless, the rights of the accused are extremely important and need to be preserved and respected to the maximum possible.

Accordingly, I will not list the trial for 10 December 2012, though I will look for dates earlier than March 2014. If such dates can be found and identified reasonably in advance then it means to me that the trial should be listed on that earlier date despite the availability or otherwise of Mr Gill.

I will order accordingly.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Chief Justice Refshauge.
Associate:
Date: 2012

Counsel for the Crown:  Ms M Jones
Solicitor for the Crown:  ACT Director of Public Prosecutions
Counsel for the accused:  Mr S Gill
Solicitor for the accused:  Capon & Hubert Lawyers & Mediators
Date of hearing:  12 November 2012
Date of judgment:  12 November 2012