Delay not unreasonable where accused unaware of charges

Russell v Pangallo [2012] ACTMC 4 (24 August 2012)

Summary

In the ACT Magistrates Court, a Magistrate held that a six year delay between the filing of a summons for a drink driving offence and the first court date for that offence did not constitute unreasonable delay giving rise to a breach of the ACT Human Rights Act 2004.

Facts

On 21 March 2005, the defendant was alleged to have refused to provide a sample for a breath test while driving. At the time he was told that he would receive a summons to attend court about the matter.

A summons was issued on 27 April 2005, requiring the defendant to appear in the ACT Magistrates Court, but despite several attempts the informant was unable to serve the defendant. Ultimately, a warrant was issued but again police were unable to locate the defendant.

Finally, defendant was located and arrested in 2011 and appeared in court for the first time, some six years after the original act and the return date on the original summons.

The defendant then made an application that the proceeding be permanently stayed on the basis that “[t]he 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.”

Decision

The key finding of the judgment is that there was no breach of the right in section 22 of the ACT Human Rights Act 2004, which states that:

(2) Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else:

(c) to be tried without unreasonable delay

The Magistrate followed the authority set out in the ACT Supreme Court case of R v Nona [2012] ACTSC 41, which is that the relevant period for considering whether there is “unreasonable delay” for the purposes of section 22 begins only once a person is made aware of a criminal charge. The period after a summons or warrant is issued but before a person is made aware of the charge is not relevant.

In this case, during the six-year delay after the issuing of a summons and warrant, the defendant was not aware of the charge and therefore was not “charged with a criminal offence”.

The Magistrate also considered whether there would be a breach of section 22 in the event that the leading ACT authority was wrong and the approach taken in Canadian Charter authorities were correct – ie that periods where a proceeding has been commenced but the defendant is unaware of them are relevant. Even in these circumstances the Magistrate held that the delay would have been reasonable.

The judgment also discusses a number of other human rights issues. Some findings of interest are:

• The Magistrates’ Court has jurisdiction to determine the application, contrary to the argument of the Attorney-General (intervening) that it could only be heard in the Supreme Court.
• The DPP is a public authority for the purposes of the ACT Human Rights Act (consistent with the view of Gummow J in Momcilovic).
• It is unnecessary to decide whether, if the prosecution were in breach of the Human Rights Act, whether it would be beyond the power of the DPP to bring it, or merely go to the question of whether the prosecution was an abuse of process.
• The DPP did not fail to give proper consideration to human rights, even though the prosecution policy does not mention the Human Rights Act.

The judgment also makes some concluding comments about the complexity and uncertainty of the legal questions he was asked to determine in what would otherwise have been a straightforward matter. However, it is worth noting that the judgment did consider a number of questions that, in light of the Magistrate’s primary finding, it was not necessary to decide.

Commentary

This is one of a number of unreasonable delay cases that have been considered in the ACT courts. There has been relatively little consideration of the equivalent Charter right in Victorian courts, which is perhaps surprising.

The findings on delay will therefore be of interest, and arguably the ACT approach narrows the number of unreasonable delay cases that could be brought. However, it should be noted that this case was not one where the defendant had experienced significant hardship because of the delay, or where the action or inaction of prosecuting authorities was patently unreasonable.

Some of the discussion of technical matters will be of interest to Charter watchers, although given the low level of the decision in the judicial hierarchy, it is unlikely to be particularly influential in Victoria.

This decision is available at: http://www.courts.act.gov.au/magistrates/judgment/view/4824/title/russell-v-pangallo.

Dan Nicholson is the Associate Director of Access and Equity at Victoria Legal Aid.