R v Kara Lesley Mills  ACTSC 109 (1 July 2011)
In R v Kara Lesley Mills  ACTSC 109 (R v Mills), the ACT Supreme Court delivered an important judgment concerning the right to a fair trial in criminal proceedings with a particular focus on circumstances that may constitute 'unreasonable delay'. While the decision largely turned on the facts of the case, it serves as an important guide to what may amount to 'unreasonable delay' and the options available to the Court to provide a suitable remedy.
In October 2006, Kara Lesley Mills was charged with four offences including trafficking in a controlled drug, or alternatively, with possessing that drug, and receiving stolen property.
On 6 September 2007, following a committal hearing, Mills was committed to stand trial.
On 28 July 2008, the trial commenced but was later aborted after the informant revealed in evidence that DNA analysis of bags containing the drugs had been tested, contrary to the defence being told that they had not. That was highly relevant to Mills's defence that the bags were left by someone else.
On 30 June 2009, a pre-arraignment conference was scheduled, but it was twice adjourned (because of counsel and witness unavailability) and when the matter returned on 11 August 2009, counsel for Mills indicated that representations were being made to the DPP regarding a permanent stay of proceedings because of delays. Consideration of that issue led to further adjournments.
On 29 October 2009, the next case conference was held and the matter was set down for trial on 7 March 2011. The stay application was foreshadowed and a timetable set. On 14 April 2010, the prosecution informed Mill's solicitors that no DNA analysis of the seized drug packaging would be conducted. On 15 April 2010, the pre-trial application was part-heard but then not re-listed until 18 February 2011, apparently because of a death in the family of counsel for the prosecution.
On 7 March 2011, some 4 years after Mills was charged, the rest of the application was heard.
The sole argument from Mills was unreasonable delay, relying on section 22(1)(c) of the Human Rights Act 2004 (ACT) (Act) which states, "Anyone charged with a criminal offence is entitled to the following minimum guarantees, equally with everyone else: (c) to be tried without unreasonable delay". In response, the prosecution seemingly acknowledged the delay, but argued that it would not be unfair to try Mills. The prosecution relied on House of Lords authority to argue that the appropriate response is not necessarily a permanent stay.
Higgins CJ granted a permanent stay in relation to charges 1, 2 and 3. Charge 4 had been earlier withdrawn by the prosecution.
Higgins CJ found that for a matter to take four years to come to trial after the decision to prosecute was unreasonable. He said, "The delay of two and a half years from the first trial, in a relatively simple case is...egregiously unreasonable, for whatever reason it might happen". He then turned to what was the appropriate response.
His Honour relied on the decision in R v Upton  ACTSC 52 in stating that the relevant test is one of proportionality. The relevant factors to be considered in His Honour's view were - length of delay, reasons for delay, Mills's timely assertion of the right in question, we well as prejudice. His Honour then addressed the particular circumstances of the case - the accused had raised the unfair delay point early, she had been put to the anxiety and expense of two trials, the prosecution had advanced no positive reasons for the delay and most importantly, had failed to explain why the drug bags had not been tested sooner. Interestingly, His Honour went on to critique the lack of resources available to the Courts, which he said may also have contributed to the delay - "the failure to provide adequate resources will, if unreasonable delay results, be a breach of human rights entitlements".
All of those reasons combined were sufficient in His Honour's view for the application to succeed and the permanent stay to be granted. The Court was of the view that that was the only appropriate response - an award of costs, relaxed bail conditions or credit for time served, were not.
Relevance to the Charter of Human Rights and Responsibilities Act 2006 (Vic)
The decision in Mills appears to be consistent with the trend in international and comparative jurisprudence to closely monitor delays in bringing matters to trial in criminal proceedings, particularly in circumstances where the prosecution is unable to sufficiently explain those delays. In Victoria, delays in various trials have been recently questioned by judges and defence teams alike, particularly those with multiple defendants such as in alleged terrorist trials. Finally, the Court’s approach in R v Mills to section 22(1)(c) will certainly inform the interpretation of s 24 (right to fair hearing), s 25 (rights in criminal proceedings), in particular, s 25(2)(c) (right to be tried without unreasonable delay), of the Victorian Charter. Given national and international trends, it seems likely that Victorian courts would take a similar approach to that in Mills and look closely at delays on a case by case basis. Where an unreasonable delay is established, the Court could well apply any number of possible responses, including permanent stays in exceptional cases.
The decision can be found at: http://www.courts.act.gov.au/supreme/judgment/view/3981/title/r-v-mills
Daniel Creasey is Senior Associate & Pro Bono Coordinator (Melbourne) with DLA Piper