R v Upton

This is an application for an order to permanently stay certain criminal proceedings brought against the accused, Mr Harold Scott Upton. Mr Upton was charged, on indictment dated 3 December 2002, that he did on 26 January 2002 at Canberra assault a Mr Riley and a Ms Hogan, and that he did, at the same place and on the same date, inflict damage to a motor vehicle belonging to Mr Riley. I made an order staying the proceedings on 24 June 2005 and indicated that I would publish my reasons, which I now do. 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.

There is clearly a power available to this Court to stay a criminal proceeding. The source of this power must be found in the broad grant of jurisdiction conferred on this Court by s 20 of the Supreme Court Act. The Human Rights Act sets out in s 22(2)(c) that anyone charged with a criminal offence is entitled to be tried without unreasonable delay. That right 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 may confer a greater power on this Court than the common law position. I was mindful of the approaches of the New Zealand Court of Appeal in Martin and the House of Lords in Attorney-Generals Reference (No 2). 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.

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. I take into account the following factors: the offence is of a relatively low order, being common assault and damage to a motor vehicle; 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; and the next realistic trial dates would be in February 2006, some four years after the events. Delay of itself inevitably creates a level of prejudice, in that memories fade. 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. 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.

The Court orders that the proceedings be stayed, and that the stay become absolute unless a contrary order is sought by application by the Director of Public Prosecutions. Such an application is to be brought on or before 26 August 2005 and would require the Director to indemnify the accused for costs incurred to date.