Right of a child to a fair trial without unreasonable delay

Perovic v CW, No CH 05/1046, ACT Children’s Court, Unreported (1 June 2006)


This case concerned the right of a child to a fair trial without unreasonable delay under the Human Rights Act 2004 (ACT).  After considering jurisprudence from the European Court of Human Rights, the Magistrate held that there had been an unreasonable delay contrary to the human right enshrined in the Act and ordered a permanent stay of proceedings.


This case involved the prosecution of a young person for a sexual offence alleged to have occurred in November 2004.  The police investigation was substantially complete by December 2004 but charges were not laid until October 2005, and were due to be heard by the Children’s Court in March 2006.  The young person’s lawyer applied for a stay of proceedings due to the delay in prosecution citing, among other arguments, a breach of s 20(3) of the Human Rights Act 2004 (ACT) which provides that ‘a child must be brought to trial as quickly as possible.’


Magistrate Somes found that the right of the young person to be brought to trial as quickly as possible had been breached.  He considered that the unjustifiable delay in the prosecution had led to such injustice both to the young person and to the complainant, who was also a child, that it was appropriate to permanently stay the proceedings.


Magistrate Somes commented on the distinction between the general right to a fair trial, which applies to adults, and the special rules which the legislature intended to apply to children involved in the criminal process.  He cited the comments of Lord Bingham in the case of Dwyer v Watson and another and K v HM Advocate (2002) 3 WLR 1488 where he said:

…prejudice to the fairness of the trial altogether apart, delay has the highly undesirable result of prolonging the stress to which a vulnerable accused is inevitably subject and retarding the date at which his problems (if he has such) can be addressed and full counseling given to the young victims without the risk of tainting their evidence.

Magistrate Somes noted that value of comparative jurisprudence, particularly from the European Court of Human Rights, stating that such decisions are of particular benefit as more:

substantial consideration has been given to the concept of delay than has perhaps in other jurisdictions, especially in Australia, when delay involves a potential breach of the relevant charter of human rights in those jurisdictions.

His Honour referred, for example, to the decision of Eckle v Germany [1983] ECHR 8 in which the European Court of Human Rights held that the moment at which the ‘clock starts running’:

..may precede the trial and could be the ‘date of arrest’, the date when the person concerned was officially notified that he would be prosecuted or the date when preliminary investigations were opened.

In considering the assessment of the period of delay, Magistrate Somes cited the test formulated by the European Court in Philis v Greece (No 2) [1997] ECHR 34 that:

the reasonablenessof the length of proceedings must be assessed in the light of the particular circumstances of the case and ... in particular the complexity of the case and the conduct of the applicant and of the relevant authorities.

He considered that the present case could not be regarded as complex, and that the investigation had finished by March 2005.  The young person had not been in any way responsible for the delay.  His Honour noted that the Informant had explained that she was engaged in a number of other tasks at the time, had been on leave at times, and later unwell, and had not put priority on this investigation, concentrating instead on what she regarded as more serious offences.  The Magistrate commented that:

The authorities particularly from Strasburg make it clear that the absence of proper resources is not a valid reason for delay.  The prosecuting authorities have a responsibility to ensure that all agencies are adequately supported so that proper consideration can be given to the expedition of criminal charges especially involving children…The requirements of the Human Rights Act in my view impose a very substantial onus on the investigating authorities to ensure that the child is brought before the court ‘as quickly as possible.’

In the circumstances, Magistrate Somes found that the young person was not brought to trial as quickly as possible and that this amounted to a clear breach of the Human Rights Act.  His Honour considered that injustice which would result from the breach of s 20(3) of the Act was such as to make it appropriate to stay the proceedings, and ordered that the proceedings be permanently stayed.

Material for this case note was taken from the ACT Human Rights Act Research Project at http://acthra.anu.edu.au/index.html