Russell v Pangallo
[2012] ACTMC 4
•24 August 2012
TREVOR RUSSELL v PASQUALE PANGALLO
[2012] ACTMC 4 (24 August 2012)
CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – applications for permanent stays of proceedings – unreasonable delay – whether there has been a breach of the Human Rights Act 2004 (ACT) – whether the DPP failed to give proper consideration to a human right – the meaning of unlawful in s 40B of the Human Rights Act
MAGISTRATES – JURISDICTION – jurisdiction conferred on the Magistrates Court under the Human Rights Act 2004 (ACT) s40C(2)(b)
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 22(d)
Human Rights Act 2004 (ACT) ss 22, 27, 35, 40
Legislation Act 2001 (ACT) s 192
Court Procedure Act 2004 (ACT) s 27
Administrative Decisions (Judicial Review) Act 1989 (Cth)
Human Rights Act 1998 (UK) ss 6, 22
European Convention for the Protection of Human Rights and Fundamental Freedoms art 6(1)
Canadian Charter of Rights and Freedoms s. 11
Grassby v R (1989) 168 CLR 1
Jago v District Court of New South Wales (1989) 168 CLR 23
Neill v County Court of Victoria [2003] VSC 328
Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129
Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Ridgeway v R (1995) 184 CLR 19
Rogers v R (1994) 181 CLR 251
Williams v Spautz (1990) 174 CLR 509
Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72
Momcilovic v R and Others (2011) 85 ALRJ 957
R v Nona [2012] ACTSC 41
HM Advocate v R [2004] 1 AC 462
Byrnes v R (1999) 199 CLR 1
Bond v R (2000) 201 CLR 213
R v Hughes (2000) 202 CLR 535
R v Askov [1990] 2 SCR 1199
R v Rahey [1987] 1 SCR 588
R v Kalanj [1989] 1 SCR 1594
R v Chabot [1980] 2 SCR 985
Mills v The Queen [1986] 1 SCR 863
Carter v The Queen [1986] 1 SCR 981
Deweer v Belgium (1980) 2 EHRR 239
Eckle v Germany (1982) 5 EHRR 1
R v Morin [1992] 1 SCR 771
Castles v Secretary of the Department of Justiceand Others (2010) 28 VR 141
Giotopoulos v Director of Housing [2011] VSC 20
Hogg, Peter Constitutional Law of Canada (5th ed, 2007)
EX TEMPORE JUDGMENT
No. CC 2558 of 2005
Magistrate: Mossop
Magistrates Court of the ACT
Date: 24 August 2012
IN THE MAGISTRATES COURT OF THE )
) No. CC 2558 of 2005
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:TREVOR RUSSELL
Informant
AND:PASQUALE PANGALLO
Defendant
ORDER
Magistrate: Mossop
Date: 24 August 2012
Place: Canberra
THE COURT ORDERS THAT:
(a)The defendant’s application dated 29 June 2012 be dismissed.
Introduction
Pasquale Pangallo is facing a single charge, CC 2005/2558. That is a charge that he contravened section 22(d) of the Road Transport (Alcohol and Drugs) Act 1977 in that on 21 March 2005 he refused to provide a breath sample as directed by a police officer. He is alleged to be a repeat offender. The charge is one which exposes the defendant to a maximum penalty of $3300 or 12 months imprisonment or both plus a period of disqualification from holding a drivers licence.
Procedural history
The events giving rise to the charge occurred on 21 March 2005. A summons was issued on 27 April 2005 requiring the defendant to appear before the ACT Magistrates Court on 5 July 2005. As will be explained in more detail later, the defendant was unable to be served. On 5 July 2005 the matter was before the Court, there was no appearance for the defendant and the matter was marked as “returned not served”. On 12 September 2005 a first instance warrant was issued by a Deputy Registrar of the Court.
The defendant was first before the Court on 5 August 2011, some six years after the return date on the summons. He was before the Court on that occasion as a result of being arrested and charged with drink driving. On that occasion a plea of not guilty was entered. The matter proceeded through the case management hearing process and was listed for hearing on 4 April 2012 and then again on 6 July 2012. Although the prosecution was ready to proceed on 4 April, the matter did not proceed because the defendant foreshadowed making an application for a stay of proceedings.
By application filed and dated 29 June 2012 the defendant has sought the following orders:
1. That the proceedings CC 2005/2558 against Pasquale Pangallo be permanently stayed;
2. Any other orders that the court considers appropriate.
5. Those orders are sought on the ground that:
“The continued prosecution of this matter breaches the defendant’s right under section 22 of the Human Rights Act 2004 to be tried without unreasonable delay.”
The application is supported by an affidavit of the defendant's solicitor affirmed on 29 June 2012. The application is opposed by the informant who has filed an affidavit in relation to the charge. He was cross-examined on that affidavit. The Attorney-General for the Australian Capital Territory has also intervened in the proceedings pursuant to s 35 of the Human Rights Act 2004 and s 27 of the Court Procedures Act 2004. On 6 July 2012, as a consequence of the filing of the application for a stay of proceedings, the hearing did not proceed and I made directions relating to the hearing of the defendant's application for a stay.
All parties have filed written submissions in relation to the defendant’s application. Mr Kukulies-Smith appeared for the defendant, Mr Drumgold for the prosecution and Mr Hancock for the Attorney-General.
Findings of fact
The events giving rise to the charge occurred on 21 March 2005. The statement of facts was in evidence before me. It is not necessary to repeat the detail of the allegations in the statement of facts other than to note that the case appears to be a relatively straightforward allegation of a refusal to provide a breath sample. My estimate is that the evidence and submissions in the case as outlined in the statement of facts would take less than two hours to hear.
On 21 March 2005, the defendant was not arrested. He was informed that he would receive a summons to attend court in relation to the matter. The defendant gave his address as 9/30 Lyttleton Terrace, Cook, ACT. The officer dealing with him, Trevor Douglas Russell, made a note of that address in his notebook.
On 27 April 2005, an information was sworn before a Deputy Registrar of the Magistrates Court and a summons was issued requiring the defendant to appear before the ACT Magistrates Court on 5 July 2005. The address shown on the summons for the defendant was 9/30 Lyttleton Crescent, Cook.
Between 27 April 2005 and 4 July 2005, police attended the address shown on the summons on seven occasions and were unable to serve the summons because no person was in attendance at the address. Further, police were unable to otherwise locate the defendant.
On 5 July 2005, the matter was before the Court, there was no appearance for the defendant and the matter was marked as returned not served. On 29 August 2005, the informant was tasked with the preparation of an affidavit to support the issue of a first instance warrant. He did so and on 12 September 2005 a first instance warrant was issued by a Deputy Registrar of the Court.
Between 12 September 2005 and 1 December 2006 the informant made at least 10 attempts to locate defendant at 9/30 Lyttleton Crescent in Cook. The informant at that stage was on duty at Belconnen Police Station and he attempted to locate the defendant at that address during the day and during the hours of darkness. He could not recall when those attempts at service were made other than that they were during the period that I have stated. He also left his contact details at the address on one occasion requesting the defendant to contact him in relation to the matter. On one occasion, he waited in an unmarked police vehicle close to the defendant address in an attempt to observe him entering or leaving the premises. He was unable to locate the defendant on any of these occasions. He made no attempt to contact the defendant by telephone or make contact with him by other means.
Also in evidence was an “Information Report” dated 5 December 2005 referring to attempts by officers to serve first instance warrants in the Belconnen area. That report which appears to be a report of information designed to be recorded on the AFP’s internal information system provides:
“Pasquale PANGALLO 02/06/1964 9/39 Lyttleton Street Cook ACT & 22/26 Springvale drive Hawker.
Police attended both addresses linked to PANGALLO. At the Cook address Police learnt that 9/39 Lyttleton Street Cook is not actual address. Police then attended 22/26 Springvale Drive Hawker. The tenant of the address stated to Police that he had no idea who Mr PANGALLO was and he did not remember receiving any mail for him. Police considered this information reliable.”
Whilst this information report refers to the address “9/39 Lyttleton Street” rather than “9/30 Lyttleton Crescent” I find that on that occasion police attempted to locate the defendant at 9/30 Lyttleton Crescent. I make that finding because firstly, the address shown on the first instance warrant is “9/30 Lyttleton Crescent Cook” and it is likely that police accurately read that address when attempting to serve the summons. Secondly, 39 Lyttleton Crescent is a detached house rather than a unit complex and it is unlikely that police, even if they had initially misread the address, would have failed to realise their error if they turned up to a single detached house when they were expecting a unit complex with at least nine units in it. Therefore I find that the reference to “9/39 Lyttleton Street” is simply an error in the Information Report and does not reflect the location at which service, on that occasion, was attempted. That finding, in my view, is reinforced by the fact that AFP indices recorded the address of the defendant at that time as being “9/30 Lyttleton Crescent, Cook”.
In December 2006 the informant was transferred from ACT policing to national investigations in Melbourne and was not involved in any subsequent attempts to serve the defendant.
16. As I indicated earlier, the defendant was first before the Court on 5 August 2011, some six years after the return date on the summons. On that occasion a plea of not guilty was entered.
17. The procedural history of the matter is then as I have outlined above. Records obtained from the Commissioner for Social Housing show that a “Patrick Pangallo” was recorded as the tenant of “9 Casuarina Grove, 30 Lyttleton Crescent, Cook, ACT, 2614” during the period 30 August 1998 until 17 December 2010. There is no other evidence about where the defendant was living during the period when service upon him was being attempted or why service upon him might have been unsuccessful.
There is no direct evidence as to his state of mind or knowledge during the relevant period although he is recorded by the informant as having been told on 21 March 2005 “You will receive a summons to attend court in relation to this matter” and having replied “Yes”.
Does the Magistrates Court have jurisdiction to determine this application?
I understood the submission of the Attorney-General to be that the Magistrates Court had no jurisdiction to determine an application made by the defendant in so far as it relied upon s 40C of the Human Rights Act 2004.
20. In the present case the application is based on s 40C(2)(b) of the Human Rights Act2004 which provides that a person who claims to be a victim of a contravention of s 40B by a public authority may “rely on the person’s rights under this Act in other legal proceedings”. Section 40C(4) provides “the Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.” Because subsection (4) refers only to the Supreme Court, the powers in that section can only be used when the proceedings are, under subsection (2)(a), brought in the Supreme Court or where the rights are relied upon in “other legal proceedings” in the Supreme Court. Where human rights are, pursuant to subsection (2)(b), relied upon in proceedings in the Magistrates Court, no additional powers are granted to the Court under subsection (4).
The Attorney-General points to this fact and notes that there is nothing in s 40C that expressly permits a person to rely on human rights in proceedings before the Magistrates Court or expressly confers jurisdiction or powers on the Magistrates Court. As a consequence, he makes the submission that s 40(2)(b) is apt to refer to other proceedings in the Supreme Court which involve a different cause of action or application for relief under a different empowering law and hence not to proceedings in this Court, the Magistrates Court. I do not accept that submission. That is for two reasons. The first reason is that the text of section 40C(2)(b) refers to “other legal proceedings” and does not contain the implied qualification which the Attorney-General’s submission suggests exists. In my view, effect must be given to the general words of s 40(2)(b). That can properly be done notwithstanding the absence of specific statutory powers such as those conferred upon the Supreme Court so long as any relief based upon reliance upon human rights is within the scope of the statutory powers which are otherwise available to the Court. The second reason is that the implied qualification suggested to exist is entirely inconsistent with the intention of the legislature as expressed in the explanatory statement to the Human Rights Amendment Bill 2007, which was presented by the Attorney-General himself. That makes it clear that reliance on human rights in other legal proceedings extends to legal proceedings that are not in the Supreme Court. The explanatory statement provides:
“Paragraph 40C(2)(b) provides that a victim of an unlawful act by a public authority may also rely on human rights as part of any other legal proceeding in a court or tribunal. This may include, for example, in an action brought against a public authority under the Administrative Decisions (Judicial Review) Act 1989, or an order in a civil or criminal proceeding, a stay of proceedings or exclusion of evidence.”
Sub-section 40C(2) is modeled on section 7 of the United Kingdom Human Rights Act 1998. It is intended to enable victims of unlawful acts by public authorities to rely on human rights in legal proceedings in courts and tribunals or to institute an independent cause of action in the Supreme Court.” (underlining added)
Thus, consistent with the language of the legislation, the purpose of the legislature as expressed in the explanatory statement was to permit reliance upon human rights in proceedings both in the Supreme Court and in other courts or tribunals such as the Magistrates Court.
The Magistrates Court is an inferior court of statutory jurisdiction. Even an inferior court such as the Magistrates Court has power to stay proceedings if they constitute an abuse of the court’s process. Any inferior court does have an implied or incidental power to grant a stay of proceedings based on the principle that every grant of power carries with it everything which may be necessary and incidental to the exercise of that power: Grassby v The Queen (1989) 168 CLR 1 at 15-16; Neill v County Court of Victoria [2003] VSC 328 at [32]; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 134E.
Those powers extend to granting a permanent stay of proceedings if, due to delay, the trial would be oppressive amounting to an abuse of process: Jago v District Court of New South Wales (1989) 168 CLR 23 at 31; Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 12 at 134; Smiles v Federal Commissioner of Taxation (1992) 37 FCR 538 at 552. However an abuse of process can arise for a variety of reasons: see Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 12 at 134. In Batistatos v Roads Traffic Authority of New South Wales (2006) 226 CLR 256 at 266-267, the majority judges emphasised that the categories of abuse of process are not closed. Their Honours said:
“14. In Ridgeway v The Queen, Gaudron J explained (82):
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are ‘frivolous, vexatious or oppressive’. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to ‘defined and closed categories’ because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of ‘abuse of process’ is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’.”
15. Earlier, in Rogers v The Queen, McHugh J observed:
“Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’'s procedures would bring the administration of justice into disrepute.”
His Honour added:
“Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court’s process.”
To that it should be added that the power to deal with procedural abuse extends to the exclusion of particular issues which are frivolous and vexatious. Further, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings are capable of constituting an abuse of the process of the court.” (footnotes omitted)
If the continued conduct of a prosecution was declared by statute to be unlawful then it is likely that it would amount to an abuse of process. The continued conduct of the proceedings would clearly be for a purpose alien to the administration of justice under law: Williams v Spautz (1990) 174 CLR 509 at 520. (See also the comments consistent with this proposition of Lord Nicholls in Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 at [35] and Lord Hobhouse at [124]-[126].)
Therefore I conclude that it is open to the defendant to rely upon his rights under the Human Rights Act and seek a permanent stay of proceedings on the basis that the continued prosecution of the matter breaches the defendant’s rights. Because of the absence of any general statutory remedial power such as s 40C(4), a stay of proceedings may only be granted if the threshold is met for that relief in accordance with the authorities identified above.
Is the DPP a public authority?
The Director of Public Prosecutions (“DPP”) is only subject to the provisions of part 5A of the Human Rights Act if he is a “public authority” within the meaning of s 40 of the Act.
Section 40 of the Human Rights Act provides an extensive definition of “public authority”. It includes in s 40(1)(f) “a public employee”. The term “public employee” is not further defined by the Act. However, the Dictionary in the Legislation Act 2001 defines “public employee” as including “(c) a statutory office-holder or a person employed by a statutory office-holder”.
The DPP is clearly a statutory office-holder given that he is the occupant of the office established by s 4 of the Director of Public Prosecutions Act 1990. This conclusion is consistent with the reasoning in relation to the Victorian Director of Public Prosecutions of Gummow J in Momcilovic v The Queen (2011) 85 ALJR 957 at [128]-[129].
Whilst the submissions put in R v Nona [2012] ACTSC 41 recorded in the judgment at [74] and [103] were directed at allegations of breaches of the Human Rights Act by the DPP, His Honour Justice Burns did not clearly proceed on the basis of the application of s 40C of the Human Rights Act but rather on some other statutory power under either s 20 of the Supreme Court Act or under the Court Procedure Rules: see Nona at [77]. As a consequence, in my view, the decision in Nona, is no obstacle to a finding that the Director is a “public authority” as His Honour did not either expressly or impliedly address the issue.
Operation of s 40B
As a consequence of the Director being a “public authority”, the Director is subject to s 40 B of the Human Rights Act. Section 40B provides:
40B Public authorities must act consistently with human rights
(1) It is unlawful for a public authority—(a) to act in a way that is incompatible with a human right; or
(b) in making a decision, to fail to give proper consideration to a relevant human right.
(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and-
(a) the law expressly requires the act is to be done or decision made in a particular way and that way is inconsistent with a human right; or
(b) the law cannot be interpreted in a way that is consistent with a human right.…”
“Act” is defined in the Dictionary as including failing to act or proposing to act.
Thus, s 40B constrains conduct which amounts to acting in a way that is incompatible with a human right but does not necessarily involve making “a decision”. It also constrains, but only in relation to “a decision”, failing to take proper consideration of a relevant human right.
In relation to summary offences such as that with which the defendant has been charged, the functions of the Director are set out in s 6 of the Director of Public Prosecutions Act as follows:
6 Functions
(1) the director has the following functions:
…(c) in relation to summary offences:
(i) instituting prosecutions
(ii) conducting prosecutions, whether instituted by the Director or not;”
It is important to note that there is nothing in the Director of Public Prosecutions Act which addresses the relationship between of the powers and functions of the Director to conduct proceedings and the rights established under the Human Rights Act. More specifically there is nothing in the Director of Public Prosecutions Act which states that the functions and powers of the DPP extend to actions which are declared to be unlawful by the Human Rights Act.
Therefore, in cases in which it is found that the conduct by the DPP is unlawful under s 40B because it is incompatible with a human right the question is whether (a) the action of the DPP is within the scope of the statutory authority granted by the Director of Public Prosecutions Act but unlawful under the Human Rights Act or (b) whether it is simply beyond the power of the DPP because the powers granted under the Director of Public Prosecutions Act do not extend to conduct which is unlawful under the Human Rights Act. The latter position is, for example, that which has been held to exist under the Scotland Act 1998 (UK) as a consequence of its clearer wording (“has no power ... to do any other act”): HM Advocate v R [2004] 1 AC 462. If it is not within the power of the Director then the conduct of proceedings beyond power would involve purporting to conduct proceedings when it had no authority to do so. It has been consistently recognised that directors of public prosecutions cannot prosecute proceedings in relation to which they do not have statutory authority: see Byrnes v R (1999) CLR 1; Bond v R (2000) 201 CLR 13; R v Hughes (2000) 202 CLR 535. Those cases denied the capacity of a director of public prosecutions to bring appeals where there was no specific authority to do so granted by the relevant empowering legislation.
36. In determining the issue of statutory interpretation, namely whether s 6(1)(c)(ii) of the Director of Public Prosecutions Act extends to conduct incompatible with a defendant’s human rights, s 30 of the Human Rights Act is intended to ensure that “the interpretation that is most consistent with human rights must prevail”: Human Rights Amendment Bill 2007 Explanatory Statement. That is a factor which would tend to favour a restrictive interpretation of the Director’s powers.
Even if the conduct of proceedings is within power under the Director of Public Prosecutions Act but declared to be unlawful by the Human Rights Act such unlawful proceedings must amount to an abuse of the court’s process. It is only if the term “unlawful” is interpreted as being something less than actually unlawful that it could be otherwise.
This was an issue in relation to which the decision of Burns J in R v Nona [2012] ACTSC 41 might be considered relevant. At [103] Burns J said:
“In support of his argument for a stay based on the HRA, the applicant submits that by continuing to prosecute him with respect to charges where a breach of his rights under s 22(2)(c) has been established, the Director of Public Prosecutions is acting unlawfully by virtue of s 40B of the HRA, which itself is an abuse of process. A similar argument was firmly rejected in Attorney General’s Reference (No 2 of 2001) and cogent reasons for its rejection given by Lord Bingham, with whom the majority agreed. With respect, I adopt his Lordship’s reasons in rejecting the applicant’s submission. In my opinion, the reasoning of Lord Bingham constitutes an application of the principle of proportionality which, as stated by Lord Hobhouse, is a basic principle of human rights law.”
In Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, Lord Bingham, with whom the other law lords in the majority agreed, said that there were four reasons for rejecting the proposition that if a public authority causes or permits unreasonable delay to occur so that a criminal charge cannot be heard against a defendant within a reasonable time, then any further prosecution or trial of the charge must be unlawful within the meaning of s 6 of the Human Rights Act 1998 (UK). Those reasons were, in summary:
(i) Given that time once past cannot be recovered, a breach of the reasonable time requirement cannot strictly speaking be secured. It would be anomalous if a breach of the reasonable time requirement had an effect more far reaching than the breach of the other rights of the defendant under article 6 (1) of the European Convention (equivalent to some parts of s 22) given that the breach does not taint the basic fairness of the hearing at all.
(ii) Having regard to the fact that article 6 applies equally to criminal and civil proceedings a rule of automatic termination of proceedings could not sensibly apply in civil proceedings. It would mean that an unmeritorious defendant in civil proceedings might escape liability but the termination of proceedings would defeat the claimant’s right to a hearing and lead them to seek to make good the loss in compensation from the State.
(iii) A rule of automatic termination on proof of breach would be likely, having regard to the undesirability of “unleashing dangerous criminals on the public” lead judges to set the threshold for a breach of the requirement at an unacceptably high level and hence distort the jurisprudence on a fundamental right.(iv) The jurisprudence from the European Court of Human Rights did not support the contention that there should be no hearing of a criminal charge once a reasonable time has passed.
It should be noted that the reasons of Lord Bingham only address the issue that arises in relation to breaches of the right to have criminal charges determined within a reasonable time. In contrast, the issue that arises in the Territory is a more general one that relates to the power of the DPP to conduct proceedings which involve a breach of any one of the human rights set out in the Human Rights Act. The decision in Attorney-General’s Reference (No 2 of 2001) does not explicitly address the scope of statutory powers given to those who prosecute offences on behalf of the Crown.
However, even within the limited scope of the issue being addressed Lord Bingham’s judgment in Attorney-General’s Reference(No 2 of 2001) there must be some qualifications on the extent to which the reasoning can be adopted and applied in the Territory. Whilst the terms of article 6 of the Human Rights Act 1998 (UK) is similar to s 40B of the Human Rights Act 2004 (ACT) in that both declare conduct of public authorities which is incompatible with one of the defined human rights to be “unlawful”, not all of the four reasons given by Lord Bingham are equally applicable in the Australian Capital Territory. The reasons appear to be a smorgasbord of judicial policy considerations relevant to the scope of relief to be granted in a particular situation. They do not address the logically anterior questions of statutory interpretation which arise in the Territory.
The difficulties in translating judicial statements such as Lord Bingham’s four reasons to the different statutory and constitutional context can be illustrated by reference to three of them.
In relation to Lord Bingham’s second reason, s 22 of the Human Rights Act is very different to article 6 of the European Convention in that it has no application to civil proceedings and hence the reasoning of Lord Bingham on this point cannot be applied readily in the Territory.
The third reason is one which effectively based on the proposition that if full effect is given to the right in question then judges, wary of the down sides of giving effect to that right, will distort the jurisprudence on what amounts to a breach. This, in my respectful opinion, reverses the appropriate inquiry. It would seem to me to be more appropriate to ask what is the content of the right and, more importantly, what does the legislature mean by declaring a breach of the right to make the conduct of the public authority “unlawful” than to adopt a limited approach with respect to relief in order not to deter a finding of a breach.
Similarly, in relation to his fourth reason, whilst with the decisions of the European Court of Human Rights may be taken into account in the Territory under s 31 of the Human Rights Act, they would be given less significance in the Territory than, perhaps, in the United Kingdom where decisions of the House of Lords were, and Supreme Court are, subject, in effect, to reconsideration by the European Court. It is notable for example that the Supreme Court of Canada has adopted a radically different approach to that reached by Lord Bingham in the European context: see R v Rahey [1987] 1 SCR 588; R v Askov [1990] 2 SCR 1199; Hogg, Constitutional Law of Canada (5th ed, 2007), chapter 52.
In my view, the appropriate starting point for this Court would be to determine those questions of statutory interpretation and to then consider, in the light of the answer to those questions, whether or not the conduct of the DPP amounts to an abuse of the Court’s process. Particularly in relation to the Magistrates Court, which is not given additional remedial powers by the Human Rights Act, it is inappropriate to go directly to questions of judicial policy in relation to the granting of relief without having addressed the fundamental antecedent issues.
47. It appears to me that the dissenting judgement of Lord Hope in Attorney-General’s Reference (No 2 of 2001) clearly articulates the issues in question. His Honour considers precisely what is meant by the word “unlawful” in the Human Rights Act 1998: see [2004] 2 AC 72 at [73]-[79]. The first alternative is that unlawful means unlawful in the ordinarily understood manner of against the law. That is more consistent with the approach arising from the terms of the Scotland Act 1998 which instead uses the words “has no power” rather than “unlawful”. The alternative is the approach that His Honour adopts, namely the true meaning of the word “unlawful” is that it simply gives rise to the potential for a victim to obtain a remedy under the Act. At [75] his Lordship says:
“A careful study of the relevant provisions of the Human Rights Act 1998 shows that the true meaning of the word “unlawful” in this context is simply that a wrong has been (or is proposed to be) committed which entitles the victim to a remedy under the Act. The fact that a person can bring proceedings only if he is (or would be) a “victim” of the “unlawful” act is an important signpost. This means that the act is unlawful only against the victim. It is not unlawful against all the world. Another signpost is the fact that under s 8(1) the court is given a choice of remedies. There are also important limitations as to what can be done where a judicial act is said to be unlawful (see s 9).
A finding that an act (or a proposed act) years (or would be) “unlawful” because it is incompatible with a Convention right is therefore simply a vehicle, or a gateway, to the provision under the Human Rights Act 1998 of an appropriate remedy.”
This appears to me to be a fundamental and unresolved question in relation to the Territory legislation. It is notable that, consistent with fundamental principles, his Lordship reached the conclusion that he did by reference to the text and structure of the Human Rights Act 1998. That same exercise has yet to be undertaken in relation to the Territory Act. Having regard to his Lordship’s view as to the significance of the remedies provision in characterising unlawfulness as merely providing a gateway to access those provisions, it is significant that, at least in relation to this Court, there is no equivalent general remedial power. Rather, if any remedy is to be given it must be within the scope of existing powers of the court. This is merely one example of the proposition that the Territory Act must be interpreted based on its own carefully devised terms and not by any judicial statements based on differently worded legislation existing in a different constitutional context.
Whatever might be said about the merits of Lord Bingham’s reasons and the applicability of those reasons to a Territory statute, the more important issue is that his reasoning does not address the statutory interpretation issue which I have outlined above. That is, it does not address the issue of whether the powers of the DPP extend to conduct which is declared by statute to be unlawful. Nothing in the decision addresses the question of the scope of the statutory powers of a director of public prosecutions in the context of a provision such as s 40B.
However because of my conclusion, explained below, that, in the present case, there has been no contravention of the defendant is right under s 22(2)(c), it is not necessary to finally resolve this issue. However, it appears to me to be a matter which is not finally resolved so far as this Court is concerned by the decision of Burns J in Nona.
Is the prosecution a prima facie breach of the right under s 22?
Section 22 of the Human Rights Act provides:
22 Rights in criminal proceedings
(1) Everyone charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.
(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:(a) to be told promptly and in detail, in a language that he or she understands, about the nature and reason for the charge;
(b) to have adequate time and facilities to prepare his or her defence and to communicate with lawyers or advisors chosen by him or her;(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;(e) to be told, if he or she does not have legal assistance, about the right to legal assistance chosen by him or her;
(f) to have legal assistance provided to him or her, if the interests of justice require that the assistance be provided, and to have
the legal assistance provided without payment if he or she cannot afford to pay for the assistance;
(g) to examine prosecution witnesses, or have them examined, and
to obtain the attendance and examination of witnesses on his or her behalf under the same conditions as prosecution witnesses;
(h) to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court;(i) not to be compelled to testify against himself or herself or to confess guilt.
(3) A child who is charged with a criminal offence has the right to a procedure that takes account of the child’s age and the desirability of promoting the child’s rehabilitation.
(4) Anyone convicted of a criminal offence has the right to have the conviction and sentence reviewed by a higher court in accordance with law.
For the purposes of the present application the relevant right is that in s 22(2)(c). However I have set out in full the terms of s 22 so that paragraph (c) can be seen in its context, namely a list of defined procedural guarantees in relation to the conduct of criminal trials. The provision is similar to s 11 of the Canadian Charter of Rights and Freedoms although that provision refers to trial within a reasonable time rather than a trial without unreasonable delay.
For the purposes of this application the period prior to today can be divided into three sections. The first is the period from 21 March 2005 until 27 April 2011. This is the period during which the defendant was aware of the possibility that he would be charged but during which no court proceedings had been commenced. The second period from 27 April 2005 to 5 August 2011 is the period during which the proceedings had been commenced but no summons had been served on the defendant and no warrant executed. The third period from 5 August 2011 to date is a period during which the defendant has clearly been subject to a criminal charge because he was before the court on 5 August 2011 and entered a plea of not guilty. Had it not been for the actions of the defendant in bringing this application, the substantive proceedings could have been heard and determined on 4 April 2012. No party submitted that the first or third periods of delay amounted to an “unreasonable delay” for the purposes of s 22(2)(c) of the Act.
As a consequence, for the purposes of the present application the critical period is that between April 2005 and August 2011 (the second period). Consistently with the decision of Burns J in Nona, in my view, the defendant was not “charged” with a criminal offence during that second period and hence the period is not relevant delay for the purposes of s 22(2)(c).
In Nona the offences were alleged to have occurred between 1995 and 1996. A first instance warrant was obtained in 1998 but summonses were only served in 2009. Burns J having considered the decision of the Supreme Court of Canada in Askov & Ors v The Queen [1990] 2 SCR 1199 and Attorney-General’s Reference (No 2 of 2001) [2004] 2 AC 72 said (at [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 JG 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 that calculation of any delay with respect to the charges concerning both JG and HG should date from the dates the applicant was served with summonses alleging these offences. ...”
In my view, the position is the same in the present case. Although, the defendant was told at the time of his alleged refusal to supply a breath sample that he would receive a summons, that is not sufficient to bring him within the scope of s 22(2)(c) since he was not “charged with a criminal offence” at that point. Nor was he “charged” when a summons was issued by the Magistrates Court or when a first instance warrant was issued.
I do not accept the submission made by Mr Kukulies-Smith that mere knowledge of an intention on the part of police to obtain and serve a summons is sufficient to bring the defendant within the scope of the s 22(2)(c). Whilst there is clearly some support for that submission in paragraphs [27]-[28] of Lord Bingham’s judgment in Attorney-General’s Reference (No 2 of 2001), in my view it does not give appropriate emphasis to the plain meaning of the word “charged” in s 22 when read in its context. If the defendant was “charged” when told that he would receive a summons, then each of the other rights in s 22(2) would also have arisen at that time including the right to a translated explanation of the nature and reason for the charge (s 22(2)(a)), the right to be told of his right to legal assistance (s 22(2)(e)) and the right to have legal assistance provided (s 22(2)(f). These examples indicate that the rights in s 22 are not directed to any time prior to the commencement of court proceedings.
In his decision in Nona Burns J concluded, having regard to the decision of the Canadian Supreme Court in Askov, that it was appropriate to find that the date upon which the defendant was charged was the date when he was served with the summonses alleging the offences. That is, he rejected the proposition that the date of the charge should be the date of the information that was sworn for the first instance warrant: see [2012] ACTSC 41 at [91]. It is notable that His Honour did not consider that the laying of the information that would provide the basis for the issuing of the summons or first instance warrant amounted to the charging of the defendant. Rather, it was, for the reasons which His Honour identified, the service of that summons. I do not consider that the decision in Nona can be distinguished on the factual basis that, although Mr Nona must have been aware of the investigation into his conduct, he had not been told, as in this case, that he would receive a summons.
Not only is the decision of Burns J in Nona binding upon me, I also agree with it. It appears to me not to make sense to interpret the right to a trial within a reasonable time to include, within that time, a period when the defendant has not been made subject to the powers of the court through service or arrest. Whilst one of the purposes of the right is to avoid the stress and worry and the potential impairment of the accused’s liberty as a consequence of the existence of the charge, that does not occur until the defendant is made subject to the jurisdiction and powers of the court. If the defendant, notwithstanding that the defendant has neither been arrested or served, is aware of the existence of the proceedings it can hardly be appropriate to consider as part of the period of delay, a period when the defendant, with knowledge of the existence of the charge, has chosen to avoid service or arrest. Further, the possibility of anxiety at the prospect of being charged relied upon by Mr Kukulies-Smith in this case is not a sufficient basis for interpreting the word “charge” so that a “charge” might exist before the statutory processes necessary to initiate court proceedings have occurred.
This approach is also consistent with the fact that for more serious offences, those involving a potential period of imprisonment of six months or more, s 192 of the Legislation Act 2001 permits them to be commenced at any time. That means it is, under Territory law, open to commence proceedings against a person no matter how long it has been since the facts alleged to constitute the offence. That is not an unusual position peculiar to the Territory but one which applies in the various Australian jurisdictions even though the threshold for the capacity to prosecute at any time varies. Having regard to the capacity to commence proceedings at any time it would make little sense to construe the notion of a person being charged as including a period when they are unaware of that fact or have not been able to be made subject to the jurisdiction of the court.
However the approach adopted by Burns J in Nona and which I have endorsed as a matter of principle is at odds with the decision in R v Kalanj [1989] 1 SCR 1594. That is a decision of the Supreme Court of Canada which predated the decision in Askov. It is a decision which it appears Burns J was not referred to. It is a decision which directly and authoritatively, so far as Canada is concerned, identifies that a person is “charged” for the purposes of s 11(b) of the Canadian Charter of Rights and Freedoms at the point when an information is sworn alleging an offence against him or where a direct indictment is laid against him when no information is sworn. The majority decision in that case was delivered by McIntyre J.
The facts of the case were that the appellants were arrested without warrants in May 1982. They were released on the same day and no charges were laid against them until January 1983, some eight months later. A trial date was fixed for February 1985. The appellants moved to quash the indictment on the ground that the delay in bringing the case to trial constituted an infringement of the right to be tried within a reasonable time guaranteed in s 11(b) of the Canadian Charter of Rights and Freedoms. As I have pointed out above, the provision is in similar terms to the s 22(2)(c).
McIntyre J said (at [1989] 1 SCR 1594 at 1602) that the question that must be answered for the purposes of the case was “when is a person ‘charged with an offence’ within the meaning of s 11(b)?”.
64. His Honour continued:
“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 cases cited therein. A person could be considered in a general or popular sense to be charged with an offence when informed by one in 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”. There are many other occasions when in the popular mind a person may be said to be charged for, according to Professor Mewett in An Introduction to the Criminal Process in Canada (1988), the word “charge” has no precise meaning at law but means merely that steps are being taken which in the normal course will lead to a criminal prosecution. However, despite what may be termed the imprecision of the word “charge” or the phrase “a person charged”, the courts are faced with the task of developing a meaning of the word as used in s. 11 of the Charter.
In addressing this task, the courts have generally avoided the definite but restricted definition to be found in Chabot, supra, and have generally concluded that a person is charged with an offence within the meaning of s 11 of the Charter when any information has been sworn which constitutes an initiating step in court proceedings…”
His Honour then referred to various authorities which support that proposition. He noted that he used the terms “laying an information” and “swearing an information” as being of the same significance and used interchangeably.
The proposition for which the appellants in Kalanj contended was that they had been charged within the meaning s 11(b) on the date of their arrest, some eight months prior to the laying of the information. In support of that proposition they relied upon the decisions of Lamer J in Mills v The Queen [1986] 1 SCR 863 and Carter v The Queen [1986] 1 SCR 981. In Mills, Lamer J had considered at 946 that a person would be charged either upon:
“(a) the service of a summons, the execution of a warrant pursuant to the laying of any information… or as of the moment a person is informed by the authorities of their existence; or
(b) the issuance of an appearance notice… or release from custody… or(c) as of the arrest, in the case of all other arrested persons not covered by (a) or (b).”
That, it must be said is very close to the approach adopted by Burns J in Nona. However McIntyre J pointed out that in Mills that approach did not get the support of a majority of the Court. He was not persuaded that the majority of the Court in Carter, which was delivered on the same day, had adopted the approach of Lamer J in Mills. As a consequence McIntyre J said at 1607:
“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 has been accorded a trial within a reasonable time under s 11(b) will commence with the information or indictment, when no information has been laid, and will continue until the completion of the trial…”
He referred at 1608 to two previous Supreme Court authorities which indicated that the starting point was “the laying of the charge” or “when a prosecution has been initiated.”
Lamer J was one of the two dissenting judges in the case. His Honour maintained the views expressed in Mills. His Honour explained his views in a little more detail at 1613:
“Generally speaking, a charge begins with an information. Unless the accused is present at the time the information is laid, which very seldom occurs, the justice or judge issues a warrant or a summons to get the accused before him to answer the charge. My brother McIntyre suggests that as of that moment the clock as regards s 11(b) starts ticking. I respectfully think that this is too early. Indeed, until the process is executed or until the accused has knowledge of its existence, the “impairment of the accused’s interest” has not really begun. Furthermore, one must acknowledge that in certain cases a period of time will be needed because of the difficulties often involved in tracing the accused. This is why I chose, as a starting point, service of the summons, execution of the warrant, but sometimes earlier, that is if the accused is informed of the existence of the charge by the authorities. I still think that this is the better moment to start the computation of time. That is what I stated in my para (a) of the definition [set out in para 67 above]. That paragraph applies to the process where there is a warrant or a summons emanating from a judge. In passing I should note that had the police in these cases obtained a warrant, there would of necessity have been a charge, and the clock would have started ticking as of the arrest, or even earlier, if one adopts my brother McIntyre’s view, that is as of the laying of the charge.
But when does the clock start when the police have issued a notice of appearance or have arrested without a warrant, as they did in these cases? I put the following question right now. Is there any reason why the clock should not start as of the arrest, that is the time at which it would have started had the police obtained a warrant (or as of the laying of the information as would have it McIntyre J.)? It would be indeed incongruous that, if you are arrested pursuant to a warrant, you enjoy your s 11(b) rights as of that moment, but not if arrested without a warrant!”
His Honour referred to the decisions of the European Court of Human Rights in Deweer v Belgium (1980) 2 EHRR 239 and Eckle v Germany (1982) 5 EHRR 1. In Eckle at [46] the European Court of Human Rights said:
“‘Charge’ for the purposes of Article 6 par. (1) (art.6-10), may be defined as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, a definition that also corresponds to the test whether ‘the situation of the [suspect] has been substantially affected’…”
As will be apparent, His Honour extended the scope of the protection afforded by s 11(b) so that so that relevant delay started when the appellants were first arrested and released without charge.
It is notable that both dissenting judgments in that case found that the arrest marked the beginning of the period during which the defendants were subject to a charge. They pointed to the prejudicial impact upon the defendants and their incapacity in the circumstances of that case to have charges brought which they could then defend.
In the circumstances of that case, confining the scope of a charge to the period after the formal commencement of court proceedings had the effect of reducing the period of delay. That is the opposite consequence from the present case where extending the period to include a period when proceedings were on foot but the defendant was not made subject to the powers of the Court (because he could not be located) would have the effect of increasing the period relevant to assessing delay.
Obviously, the approach that one takes to the question of when a defendant is charged will have an impact upon the approach that one takes to the question of what is a reasonable period.
In my view, if, contrary to the decision in Nona, the period during which the defendant is charged includes periods when proceedings have been commenced but the defendant is unaware of them then the assessment of what is reasonable delay must take into account that fact. Substantially for the reasons which I have outlined above in relation to my preference, consistent with the decision of Burns J, for an approach to the concept of “charge” that confines it to the period after which the defendant has been served or arrested, in my view a period during which proceedings are on foot but when the defendant is unaware of them and hence does not have his or her interests jeopardised can hardly be of much significance when it comes to assessing the overall delay in bringing the matter to finalisation and its reasonableness.
Section 22 is similar in its structure and content to s 11 of the Canadian Charter of Rights and Freedoms. Section 11(b) of the Charter provides that any person charged with an offence has the right to be tried within a reasonable time. The Canadian Supreme Court has held that whether or not the right in s 11(b) has been denied is not determined by the application of a mathematical or administrative formula, but rather by a judicial determination balancing the interests which this section is designed to protect, against factors which inevitably lead to delay or are otherwise in the course of delay. That exercise must be taken to go to the question of whether or not the time which it has taken to try the defendant is “reasonable”.
76. Accepting, for present purposes, that the approach in R v Morin [1992] 1 SCR 771 is the correct one the matters are as follows.
1. The length of the delay.
Upon the hypothesis which at this point I am proceeding, the start of this period is the date on which an information is sworn or an indictment is preferred. The period in the present case was six years. Clearly enough it is a period of sufficient length to raise an issue as to its reasonableness.
2. Waiver of time periods.
There has been no relevant waiver of time periods by the defendant.
3. The reasons for the delay.
In the present case the reasons for the delay are that the informant and other AFP officers made reasonable attempts over a significant period to serve the defendant. Those attempts focused on the address which was given to them by the defendant. For reasons which are not clearly explained in the evidence those attempts were not successful. It can be said, however, that the police made reasonable attempts over a significant period to serve the defendant and then ceased to make any further attempts.
4. Prejudice to the accused.
There is no evidence that prior to August 2011 the defendant was aware of the existence of the charge. He was, however, told in March 2005 that he would receive a summons. There have been no restrictive bail conditions or any other pre-trial impositions on the defendant as a consequence of the existence of the charge prior to August 2011. There is no evidence of any ongoing stress or damage to reputation as a result of overlong exposure to the vexations and vicissitudes of a pending criminal accusation. There is nothing about the nature of the case that would indicate it is a matter in which the defendant has suffered actual prejudice by reason of the delay prior to August 2011. There is the possibility, not clearly established by the evidence, that the general fading of memory over time might make it more difficult to defend the charge. However, whilst I accept that some prejudice can be presumed in the present case, it is not, having regard to the nature of the case, apparent and no particular factual issue was identified which might give rise to prejudice.
In those circumstances, having regard to the balancing exercise contemplated in Morin, I am required to make a judicial determination as to whether the period of delay is unreasonable.
In coming to that conclusion, account must be taken of the interests which s 11(b) or s 22(1)(c) is designed to protect. In undertaking this exercise I am entitled to assess the weight to be given to the interests of society in having the matter determined. In my view that can be done by having regard to the maximum penalty that the legislature has imposed for a conviction for the offence, in this case a fine of up to $3300 or a period of imprisonment of 12 months or both, as well as a default period of disqualification from holding or obtaining a drivers licence of five years which may be reduced down to as little as 12 months. I can also have regard to the fact that pursuant to s 192 of Legislation Act, because the maximum penalty for the offence includes a period of imprisonment in excess of six months, the legislature has determined that a prosecution may be commenced at any time. I consider that to be a relevant factor in determining how the legislature has weighed the societal interest in the prosecution of charges against this section.
In the light of these considerations, even if, contrary to my opinion and the decision in Nona, the second period of delay is relevant delay for the purposes of s 22(2)(c), in my view the extended delay between April 2005 and August 2011 considered by itself or in combination with the third period is, in the particular circumstances of the case, a reasonable delay in having the defendant tried.
For these reasons, in my view, even if one accepts the starting point as being the time at which proceedings are commenced, even though the defendant is completely unaware of that commencement, there has been no breach of s 22(2)(c).
Did the DPP fail to give proper consideration to the defendant’s rights under s 22?
The defendant has submitted that the DPP has made a discretionary decision to initiate and maintain the prosecution of the charge in these proceedings without having taken into account the defendant’s right under s 22(2)(c) of the Human Rights Act. The first part of this submission is not correct. The DPP did not make a decision to initiate the prosecution. That was done by the informant. He did, however, decide to conduct the prosecution and continue it against the defendant. The duty to give “proper consideration” to human rights requires a public authority to demonstrate an understanding in general terms of the rights that might be affected by an exercise of its powers, duties or functions and of the factors that would otherwise be considered in determining whether a limitation on those rights was proportionate: see Castles v Secretary, Department of Justice (2010) 28 VR 141 at [14]. The obligation is one of substance rather than of form and would require more than the mere recitation in the decision-making record of the relevant provision of the Human Rights Act: Giotopolous v Director of Housing [2011] VSC 20 at [90].
The defendant points to the fact that the Prosecution Policy of the DPP contains no reference to human rights or the Human Rights Act at all.
The defendant submits that the continuation of the prosecution is indicative of the fact that a decision has been made notwithstanding that the defendant cannot point to any particular record of that decision.
In my view the claim made by the defendant must fail because the defendant has not produced any evidence concerning the making of the decision. Whilst I accept that a decision must have been made, there is no evidence before me indicating what matters were considered by, or on behalf of, the Director in determining to proceed with the charge. Given that the defendant bears the onus of proof for the purposes of his application I am not satisfied that he has discharged the onus of proving that the Director failed to give proper consideration to the right of the defendant under s 22. I do not accept that the absence of any reference to human rights or rights established under the Human Rights Act in the prosecution policy is sufficient by itself to establish unlawfulness under s 40B(1)(b) in this case.
In the light of this conclusion, it is not necessary to address the Attorney-General’s submission that, having regard to the limited powers of the Magistrates Court, any breach of s 40B(1)(b) could not be the subject of relief in this Court.
Final observations
For the reasons that I have outlined I will dismiss the defendant’s application. Whilst it might have been desirable to reserve my decision and give full consideration to the issues which I have identified in my reasons and undertake a thorough comparative analysis of the jurisprudence particularly in the United Kingdom and Canada so as to form a view of the proper approach to be taken in the Territory, having regard to where I sit at the bottom of the judicial hierarchy it appeared to me to be more appropriate to give my decision expeditiously notwithstanding that it is less thorough and considered than might otherwise have been the case. Furthermore, it would be particularly unfortunate in a case such as the present where the underlying complaint by the defendant is one of delay if I were to further delay what should be a relatively short trial by reserving my decision.
Finally, I must observe that for the purposes of what might be considered to be a reasonably straightforward application pursuant to a statute in the lowest Court in the Territory, it has been necessary to examine significant unresolved questions involving an examination of conflicting authority in a number of different jurisdictions relating to broadly worded guarantees which need to be given effect through a process of interpretation which is more akin to a legislative function. Substantial resources are required to be devoted to such issues by the lawyers acting for the defendant, as well as those engaged by the DPP and the Attorney-General. Notwithstanding the fact that, in the time available, the Court has, with the assistance of the parties been barely able to scratch the surface the relevant jurisprudence on just this one right under the Act, dealing with such questions involves a significant devotion of the Court’s time. There is nothing wrong with any of this per se. The pursuit of fine questions of public law are certainly matters of significant interest and satisfaction to lawyers, including, it must be said, judicial officers. However it must be recognised that all such activities come with a cost in terms of time and resources. The legislature has made a choice to impose that cost upon the judicial system and the parties litigating in it. That is a cost largely borne by the community. The question of public policy is whether that cost is justified by the public policy and human rights outcomes that are achieved through such litigation. It is a question which I raise but upon which I make no comment other than to say that it is a question worthy of empirical examination and debate.
Orders
(a) That the defendant’s application dated 29 June 2012 be dismissed.
I certify that the preceding eighty-seven numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Magistrate Mossop.
Associate:
Date:
Counsel for the Plaintiff: M Kukulies-Smith
Solicitor for the Plaintiff: Kamy Saeedi Lawyers
Counsel for the Defendant: S Drumgold
Solicitor for the Respondent: Director of Public Prosecutions (ACT)
Counsel for the Intervener: N Hancock
Solicitor for the Intervener: ACT Government Solicitor
Date of hearing: 24 August 2012
Date of judgment: 24 August 2012
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