ACT Supreme Court clarifies the principles applicable to the determination of 'unreasonable delay'

R v Adam Tony Forsyth [2013] ACTSC 179 (31 October 2013)


The Supreme Court of the Australian Capital Territory has refused to grant a stay of proceedings to an accused facing prosecution, on the basis that, while the accused suffered unreasonable delay in having the matter brought to trial, the prosecution had not acted unlawfully in continuing to pursue the case.

The decision also makes clear that it is not necessary for a party to demonstrate that they suffered prejudice in order to establish that there has been an unreasonable delay in bringing them to trial. Rather, this will be a factor relevant to the determination of an appropriate remedy.


On 9 January 2008, the accused was issued with a summons in relation to an offence of assault occasioning actual bodily harm. The matter was heard summarily in the Magistrates' Court on 17 November 2008. At the hearing, the accused withdrew his consent to summary jurisdiction, with the result that the Magistrate committed the matter to trial in the ACT Supreme Court. The Registrar subsequently set a trial date of 23 August 2010.

On 29 June 2010, the prosecution became aware that one of its key witnesses who was based in Victoria was unable to attend the Court to give evidence at the time set down for trial because she was due to give birth. The prosecution applied to vacate the trial date and the accused did not object. Justice Penfold vacated the trial date on the basis that the witness was unavailable to give evidence in person.

A number of other delays occurred in having the matter brought to trial, including the prosecution and the accused failing to appear, the accused failing to file the required documentation on time and the accused foreshadowing a pre-trial application that was not pursued.

On 29 September 2010,a pre-arraignment conference was held where the Registrar advised the parties that there were no trial dates available in 2011. The trial was listed for 20 February 2012.

The accused subsequently applied for a stay of the proceedings. He argued that the stay should be granted because:

  • he has a right to be tried without unreasonable delay under the Human Rights Act 2004 (ACT) (the Act), which was breached by the prosecution's decision to maintain the proceedings against him. Accordingly, the only effective remedy was a permanent stay of the prosecution; and
  • a permanent stay should be granted at common law.


The Court refused to grant the stay under the Act or at common law.

Human Rights Act

Justice Penfold noted that section 22(2)(c) of the Act recognises the right of an accused 'to be tried without unreasonable delay'. The accused's right to a fair trial under section 21 of the Act was also relevant.

Her Honour considered the following factors, based on those set out by the Canadian Supreme Court in R v Morin [1992] 1 SCR 771, to assess whether there had been an unreasonable delay.

  • The length of the delay: this was a period of four years and three months.
  • Waiver of time periods: Justice Penfold considered that the accused’s refusal to submit to the summary jurisdiction of the Magistrates’ Court, electing for the proceeding to be heard by a judge alone, and the accused consenting to the trial dates did not amount to the accused waiving his right to be tried without unreasonable delay. However, electing to have the matter heard in the Supreme Court did result in the accused accepting the Supreme Court’s timeframe for a trial. Additionally, the accused’s failure to seek an expedited trial in favour of a permanent stay was relevant to the determination of the appropriate remedy.
  • Reasons for the delay: Justice Penfold considered that the accused and the prosecution had both contributed to the delay, as well as institutional factors. In broad terms, her Honour concluded that the accused (and his legal representatives) were directly responsible for 8 months of the delay and indirectly responsible for 15 to 16 months of the delay. The witness's pregnancy was not within control of any party.

Ultimately, Justice Penfold concluded that the delay in bringing the accused to trial could be categorised as 'unreasonable' because a significant amount of the delay was directly attributable to institutional problems with the Court and the prosecution.

In addition, her Honour noted that, in contrast to the decision in Morin, it was not necessary for the accused to establish that he had suffered prejudice because the right to a fair trial and the right not to have the trial unreasonably delayed are separate and distinct under the Act.

Consistent with the approach adopted by courts in the United Kingdom and New Zealand, Justice Penfold held that prejudice suffered by the accused is relevant only to the determination of a remedy. In considering whether the accused has suffered prejudice, her Honour noted that:

  • there was no evidence that the delay had deprived the accused of a fair trial;
  • the only inferred prejudice suffered by the accused could be from the ‘failing memories’ of those involved, which was overridden by the public interest in bringing the matter to trial; and
  • the delay only affected the accused's security of person under section 18(1) of the Act to the extent that he had the trial 'hanging over his head' for a longer period of time.

Additionally, her Honour noted that in order to receive a remedy, the Act also requires the accused to identify that the prosecution, as a public authority, had an unlawful disregard for the accused’s rights in relation to the delay. Justice Penfold was prepared to assume that the prosecution was a public authority for the purposes of the Act. Her Honour noted that the key question was whether the prosecution acted unlawfully by conducting itself in a way that was incompatible with the accused's human rights, or making a decision without giving proper consideration to the accused's human rights. Her Honour stated that section 40B of the Act required the prosecution not to disregard the right to a timely trial by its own actions or decisions.

Ultimately, her Honour held that the prosecution had not acted unlawfully by failing to obtain an early trial date, given that this was out of its control and the accused was simply being subject to the delays that affected all proceedings listed with the Court.

Justice Penfold held that while the delay was unreasonable, the prosecution had not acted unlawfully in maintaining the proceeding against the accused. Her Honour held that even if there had been a breach, the appropriate remedy would not have been a stay of proceedings, because of the accused’s failure to seek earlier relief, and his own actions in further delaying the trial.

Common Law

Justice Penfold held that a permanent stay at common law was not available because of the absence of any identifiable prejudice or potential unfairness to the accused. Nor was there any evidence of an abuse of process that would justify the stay at common law.


The reasoning of Justice Penfold in Forsyth is largely consistent with the decision of the Court of Appeal of the ACT in Nona v R [2013] ACTCA 39, which was decided shortly before Forsyth. Both courts followed the approach adopted by the Canadian Supreme Court in Morin and considered that it was not necessary for a party to demonstrate that they suffered prejudice in order to establish that there has been an unreasonable delay in bringing them to trial.

As the Victorian Charter also contains a right to be tried without unreasonable delay and separately, a right to a fair hearing (see sections 25(2)(c) and section 24), it is likely that the Court's reasoning in Forsyth would be considered highly persuasive in Victoria.

The full decision is available at:

Matthew Hearn is a Lawyer with Allens.