R v Dennis Michael Nona  ACTSC 41 (23 March 2012)
In R v Nona the ACT Supreme Court considered the right to a fair trial without unreasonable delay in the context of whether or not to stay criminal proceedings. The key issues related to a breach of a statutory human right and the appropriate remedy for that breach. While the court found that the right to a trial without unreasonable delay had been breached, it considered that a declaration would be an appropriate remedy rather than a permanent stay. This decision is important because it discusses the relevance of section 30 (interpretation of laws and human rights) of the Human Rights Act 2004 (ACT) (HRA) when interpreting ACT legislation, and the common law and statutory principles of undue delay.
Dennis Michael Nona (the Applicant) sought to have proceedings permanently stayed based upon an alleged breach of section 22(2)(c) of the HRA, which provides that anyone charged with a criminal offence is guaranteed the right to be tried without unreasonable delay.
The proceedings related to two series of offences relating to sexual assault against persons under 16, JG and HG. The series concerning JG was relatively straight forward, containing four counts of offences. There was a delay of approximately three years and four months from the date of summons to the date of trial. The series concerning HG was more complicated, containing 12 counts of offences. There was a delay of approximately three years from the date of summons to the date of trial.
The offences occurred between September 1995 and June 1996. In September 1996, the applicant moved to northern Queensland. It was around this time the authorities became aware of the offences concerning JG.
Statements were given by JG implicating the Applicant in February 2009, summons were served in March 2009. In an interview in 2010, HG implicated the Applicant in the second series of offences, for which summons were served in September 2010.
The Supreme Court dismissed the application. The central issue was whether the proceedings should be stayed.
The Applicant submitted that section 22(2)(c) of the HRA guaranteed him the right to be tried without unreasonable delay. He argued that this right had been breached, and that the Director of Public Prosecutions acted unlawfully in maintaining the prosecution against him, as it was incompatible with his rights under that section.
The DPP contended that the Court’s power is statutory, and as such was to be interpreted consistently with human rights principles. Section 30 requires that in construing the provision, the Court must interpret it in a manner compatible with human rights, specifically, the DPP argued, section 11(2) the right of a child to protection.
Decision and consideration of HRA
Justice Burns considered the relevant common law and statutory principles. His Honour found that in this proceeding, section 30 of the HRA required that “the interpretation of any ACT statutory provision concerning the grant of a stay must be conducted with s 22(2)(c) of the HRA in mind.”
Section 22(2)(c) of the HRA states that anyone charged with a criminal offence is entitled to “be tried without unreasonable delay”. For the purposes of determining “unreasonable delay”, it was necessary to determine the starting point for the calculation of “delay”.
Determination of this involved consideration of the reasons for proscription of undue delay, namely to prevent oppressive pre-trial incarceration, to minimise the anxiety and concern of the accused and to limit the impairment of, or prejudice to, the defence. Relevantly, the Applicant had never been held in custody, nor had he been subject to bail conditions with respect to the pending charges.
In his Honour’s opinion, a plain reading of section 22(2)(c) suggested “a temporal connection between the rights recognised by the section and the existence of charges against the person. [Therefore it] recognises a right which residues in a charged person” and not a right that could be asserted by an applicant prior to being charged. Justice Burns subsequently held that the start date for the calculation of the delay should be the date summonses were issued, or the date they came to the attention of the Applicant. In these proceedings that was 25 March 2009 for JG, and late September 2010 for HG.
In determining unreasonableness, Justice Burns considered the key elements to be the length of delay and the nature of the charges. The charges concerning HG were delayed by approximately three years. Given the nature and complexity of the charges, and the date of the allegations, Justice Burns found this delay did not breach the provision. The charges concerning JG were delayed by approximately three years and four months. Given the nature of the case and the authorities’ possession of evidence for almost 14 years, his Honour found that this delay did breach the Applicant’s rights under section 22(2)(c).
However, the remedy was not to grant a delay, as a stay of proceedings is not automatic upon establishing breach. The Court stated that “the right is to trial without undue delay; it is not a right not to be tried after undue delay”. Justice Burns considered that his judgment constituted a public acknowledgement of that delay and furthermore, that the public interest of allegations of sexual assault against children being determined in a court outweighed “any prejudice to the applicant, especially as any such prejudice will not preclude the applicant obtaining a fair trial... [as it could] ...be ameliorated by appropriate directions to the jury.”
This judgment was interesting in that it concerned a breach of a statutory human right and a consideration of the appropriate remedy for that breach; however, those elements were only dealt with cursorily. The judgment was detailed in relation to unreasonableness and prejudice, but Burns J was noticeably brief in the manner in which he considered and determined the breach itself and the appropriate remedy.
Relevance to the Victorian Charter
Section 30 of the HRA provides that, where possible, the interpretation of any ACT statutory provision must be interpreted compatibly with human rights. This is a provision that is also contained in the Charter in section 32.
While this judgment will be not be binding on Victorian courts, it has direct relevance as the wording of section 30 of the HRA and section 32(1) of the Charter are identical.
This case bears similarity to Kracke v Mental Health Review Board  VCAT 646, in which Justice Bell considered that a declaration that the applicant’s rights had been breached was an appropriate remedy.
The decision can be found online at: http://www.austlii.edu.au/au/cases/act/ACTSC/2012/41.html
Paul Lamb is a Senior Associate and Lucinda Carter is a graduate at DLA Piper.