Jago v District Court (NSW)
168 CLR 2387 ALR 577
(Judgment by: Toohey J) Court:
Judges:
Mason CJ
Brennan J
Deane J
Toohey JGaudron J
Judgment date: 12 October 1989
Canberra
Judgment by:
Toohey J
Chapter 29 of Magna Carta (25 Edward I (1297)), as it appears in Halsbury's Statutes of England, 2nd ed. (1948), vol 4, p 26, concludes with these words:
"Nulli vendem, nulli negabim, aut differem rectum vel justiciam."
The translation reads:
"We will sell to no man, we will not deny or defer to any man either justice or right."
The appellant contends that the undertaking by the Crown not to defer justice recognized, alternatively gave rise to, a right in a person charged with an offence to a speedy trial. That right, it is said, is separate from the right to a fair trial (though, counsel for the appellant explained, "perhaps overlapping to some degree with the right to a fair trial") and does not depend upon the person charged having suffered any prejudice by reason of delay in the prosecution of the charge against him.
The appellant further contends that this right to a speedy trial, recognized or established by Magna Carta, has been preserved in New South Wales by the Imperial Acts Application Act 1969 (NSW). Section 6 of that Act declares certain Imperial enactments to have been in force in New South Wales on 25 July 1828 and, subject to the effect of other Acts, to have remained in force from that day. One of the enactments to which s 6 refers is "25 Edward I (Magna Carta) c.29". The place of Magna Carta in Australian law is the subject of a note by Professor Castles in "Australian meditations on Magna Carta", (1989) 63 Australian Law Journal 122.
On 19 October 1981 the appellant was arrested and charged with a number of offences relating to Manning Insurance Services Pty Ltd of which he was, at relevant times, a director. He was committed for trial on 16 July 1982 on ninety-two charges though in the end the indictment prepared against him contained thirty counts. Each count alleged that the appellant fraudulently took and applied a cheque to a use other than the use of the company. The offences were said to have been committed between April 1976 and January 1979.
Under the procedure then existing in New South Wales, a bill of indictment was found, though not until May 1986, and then presumably in respect of the thirty counts just mentioned. The procedure itself is outlined by Priestley J.A. in Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685 , at pp 701-702. On 27 June 1986 the matter was listed in the District Court and a hearing of the charges was fixed for the week commencing 9 February 1987. When the indictment was presented on 13 February 1987, the appellant sought from Judge Thorley a stay of proceedings on the indictment. That application was refused. An appeal to the Court of Appeal failed (Kirby P. and Samuels J.A., with McHugh J.A. dissenting).
The primary question before us is whether a right to a speedy trial does exist. That is not the only question for the appellant has an alternative argument, namely, that even if there is no such right the continuation of his trial would be an abuse of the process of the court by reason of undue delay prejudicing his right to a fair trial. Consideration of the applicant's argument necessarily involves a journey into history. But the appellant urges us not to lose sight of his contention that, even if Magna Carta proves not to be the evidence or source of a right to a speedy trial, the statute was later taken to have had this effect and the right thereby became enshrined in our law.
In the Court of Appeal Samuels J.A. analyzed historical considerations which led him to conclude that "there is not, in this State, any right at common law to a speedy trial whether derived from the earliest origins of our legal heritage or from some more immediate source". I respectfully agree with his Honour's conclusion; what now follows owes much to his analysis. One consideration of great significance, and it is as well to identify it now, is that in the debate which has taken place no decision of long standing was cited as recognizing the existence of the right claimed or as granting a remedy for its breach. In saying this I am, of course, speaking of a right to a speedy trial independent of the right to a fair trial.
In the Court of Appeal McHugh J.A. observed:
"The speedy trial right is a common law right. It does not depend on statute. It needs no Constitution to enshrine it."
In so observing, McHugh J.A. was echoing what he had said earlier in Aboud v. Attorney-General (NSW) (1987) 10 NSWLR 671 , at pp 691-692, and earlier still in Herron v. McGregor (1986) 6 NSWLR 246 , at p 252. But it still remains necessary to inquire as to the foundation for the statement that there is a common law right to a speedy trial.
Those who assert the existence of the right pray in aid the statement by Coke in his Institutes of the Laws of England, Pt 1, s 108 (81a) that Magna Carta was "but a confirmation or restitution of the common law". They go further and rely upon the Assize of Clarendon 1166, cc.4 and 6. In Klopfer v. North Carolina (1967) 386 US 213 Warren C.J., delivering the judgment of the Supreme Court of the United States, said, at p 223:
"We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta ... but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon ..."
This view of Magna Carta and the Assize of Clarendon is, as Samuels J.A. observed, open to serious challenge. Whether or not the view found its way into the United States Constitution via the Sixth Amendment need not detain us for it is not the United States Constitution with which we are concerned.
As to the Assize of Clarendon, the text published by William Stubbs in 1870 is now thought to be corrupt: see Richardson and Sayles, The Governance of Mediaeval England from the Conquest to Magna Carta, (1963), App IV, at pp 438-444. The text of c.4 of the Assize reads in part:
"And when a robber or murderer or thief or receiver of them has been arrested ... if the justices are not about to come speedily enough into the county where they have been taken, let the sheriffs send word to the nearest justice ... that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices."
Richardson and Sayles comment, at p 442, that although c.4 of the Assize contemplates that "those accused of crime will be held in custody until the itinerant justices, before whom they are to make their law, arrive from some other county", the system of itinerant justices did not come into existence until at least 1168. "Thus, they conclude", said Samuels J.A., "the text which passes for the Assize does not represent contemporary instructions issued for the apprehension and punishment of suspected criminals." At the same time, Pollock and Maitland do note that the Assize "served as instructions for the justices who were being sent out on a great eyre throughout the land" (The History of English Law, 2nd ed. (1898), vol 1, p 145). And Richardson and Sayles say of the Assize, as it has come down to us:
"With some reserves, then, the compilation may be accepted as a statement of the procedure in the latter part of Henry II's reign" (at p 443).
Henry II reigned from 1154 until 1189. There is therefore some contemporaneity about the document.
More importantly, the Assize was not concerned to assert any right to a speedy trial. Its intention was to ensure the primacy of royal justice over the local courts by reserving to the royal justices "jurisdiction over the robber, the murderer, and the thief": Holdsworth, A History of English Law, 7th ed. (1956), vol 1, p 71. It is reading too much into the Assize to see it as aimed at ensuring an expeditious hearing for those accused of crimes. Furthermore, to draw such a conclusion from the Assize is to overlook the then situation of the courts. Their concern was to secure the attendance of the accused, at a time when judgment by default was not contemplated and when delays were inevitable and were exacerbated by the formal and technical procedures of the day: see McKechnie, Magna Carta, 2nd ed. (1914), p 83. The need for a speedy trial was not likely to have been in contemplation.
In the thirteenth century the courts were held in the King's name by itinerant justices acting under temporary commissions. One, the Commission of Gaol Delivery, "was simply to deliver from the gaols of the county all persons lying therein by trying the accusations against them" (Potter, An Historical Introduction To English Law and its Institutions, 3rd ed. (1948), at p 110). Pollock and Maitland, vol 1, at p 200, say of these commissions:
"This in the latter part of Henry III.'s reign is done very frequently; generally it is done by some three or four knights of the shire, and thus, long before the institution of justices of the peace, the country knights had been accustomed to do high criminal justice."
In vol 2, at p 645, Pollock and Maitland suggest:
"True also that, as time went on, justices were sent with ever increasing regularity to deliver the gaols; but the work of gaol-delivery seems to have been light - for few men were kept in prison - and it was regarded as easy work which might be entrusted to knights of the shire."
In these circumstances it is understandable that the notion of a right to a speedy trial was not likely to have surfaced.
As to Magna Carta, the argument for a right of speedy trial runs into the sort of comment made by McKechnie, at p 395, who observes of c.40 in the 1215 version of Magna Carta (c.29 in 25 Edward I):
"This chapter ... has had much read into it that would have astonished its framers: application of modern standards to ancient practice has resulted in complete misapprehension."
Although it would seem that c.40 may not have been completely effective (see Pollock and Maitland, vol 1, at p 195), its apparent intention was to correct the worst abuses associated with the practice of charging heavy fees for writs. But this was in order to ensure the pre-eminence of royal justice. It is pertinent to note Holdsworth's observation in vol 2, pp 214-215, in regard to cc.38, 39 and 40 of Magna Carta in its original form:
"It was said in the seventeenth century that these clauses embodied the principles of the writ of Habeas Corpus and of trial by jury; and for these interpretations early mediaeval authority could be cited. It is not difficult to show that, taken literally, these interpretations are false. Trial by jury was as yet in its infancy. The writ of Habeas Corpus was not yet invented; and ... it was long after it was invented that it was applied to protect the liberty of the subject."
It is true that Coke, in Pt II of his Institutes, at p 55 (55), derived more from c.29 of Magna Carta for he said:
"And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay."
But in truth the aims of c.29 were more modest, as was summed up by Thomas Madox in The History and Antiquities of the Exchequer, 2nd ed. (1769), vol 1, p 455, quoted in McKechnie, at p 396:
"By nulli vendemus were excluded the excessively high fines: by nulli negabimus, the stopping of suits or proceedings, and the denial of writs: by nulli differemus, such delays as were before wont to be occasioned by the counterfines of defendants (who sometimes would outbid the plaintiffs) or by the prince's will."
Coke's view of Magna Carta has been generally attacked. And, as Samuels J.A. noted, even if c.29 be seen as declaratory of some fundamental law, it is not possible to find in the chapter any principle evidencing the right to a speedy trial. For that reason, the appellant's case is not assisted by the argument that the effect of the Imperial Acts Application Act is to re-enact Magna Carta as if it were a piece of contemporary legislation. Even if that be so (as to which it is unnecessary to express an opinion), the language of Magna Carta remains the same and the difficulty remains of finding in that language the principle for which the appellant contends.
Nor is there to be found in the writ of habeas corpus support for a right to a speedy trial. The writ "originated as a device for compelling appearance before the King's judicial instrumentalities" (Duker, A Constitutional History of Habeas Corpus, (1980), p 62). Pollock and Maitland, vol 2, p 594, observe:
"One thing our law would not do: the obvious thing. It would exhaust its terrors in the endeavour to make the defendant appear, but it would not give judgment against him until he had appeared, and, if he was obstinate enough to endure imprisonment or outlawry, he could deprive the plaintiff of his remedy."
Hence, the object of habeas corpus was to ensure the defendant's attendance. Later the writ played a significant part in the battle for control between the Crown and the local courts, later still between the common law and equity and ultimately between the courts and the executive: see generally Sharpe, The Law of Habeas Corpus, (1976), Ch.1; Duker, Ch.1.
The Habeas Corpus Act 1679 (31 Charles II c.2) (the first Habeas Corpus Act was enacted in 1640) was passed to meet abuses "which had in some measure defeated the benefit of this great constitutional remedy": Blackstone, Commentaries on the Laws of England, (1768), Book III, p 135. Blackstone, at pp 135, 137, stated that the Act "is frequently considered as another magna carta of the kingdom", and describes it as completing the remedy "for removing the injury of unjust and illegal confinement". However, he did not refer to it as a means for facilitating speedy trial. Dicey, Law of the Constitution, 10th ed. (1959), pp 218-219, commented that the effect of the writ would be evaded
"either if the Court did not examine into the validity of the warrant on which the prisoner was detained, and if the warrant were not valid release him, or if the Court on ascertaining that he was legally imprisoned, did not cause him according to circumstances either to go out on bail or to be speedily brought to trial."
But it is apparent that Dicey was emphasizing that a prisoner could not be held in prison unduly. He must be bailed or brought to trial without delay. Read in context, Dicey was not asserting in general terms a right to a speedy trial.
Samuels J.A. notes various English decisions - Crosby's Case (1694) 12 Mod 66 ( 88 ER 1167 , at p 1168); Ex parte Beeching (1825) 4 B & C 136, at p 137 ( 107 ER 1010 ); In re Hastings (No. 2) (1959) 1 QB 358 , at p 369; In re Kray (1965) Ch 736 - in which reference is made to the right of a defendant not to be detained in prison without being brought to trial. In The Queen v. Oliver (1958) 1 QB 250 , at p 252, Lord Devlin went further and, during argument, spoke of s 6 of the Habeas Corpus Act 1679 as giving "statutory effect to the principle that a defendant is entitled to a speedy trial, and that a judge may not postpone the trial beyond a certain limit". But it is hard to find in these various statements the articulation of what is truly a right to a speedy trial as opposed to a recognition of the power reposed in a trial judge to control the case before him so as to ensure that the accused is not detained in custody unduly.
Section 6 of the Habeas Corpus Act 1679 had as its object the prevention of unlawful detention and the prevention of detention for long periods without trial. But it was a limited remedy, as Samuels J.A. points out. It applied only to treason and felony; the time within which a trial must be held related to the sessions of oyer and terminer and of general gaol delivery rather than to a general concept of expedition; it is arguable that the section did not extend to persons on bail; it is not clear that discharge under s 6 would bar further proceedings; and, as Tadgell J. pointed out in Clarkson v. Director-General of Corrections (1986) VR 425 , at p 430, the discretion reposed in courts by modern legislation to adjourn or postpone trials "can scarcely be regarded as co-existing with a right of accused persons to insist that they be either tried within a defined period or inevitably discharged".
To return to the point made earlier in these reasons, there appears to be (at least until recently) no judicial decision giving recognition to a right to a speedy trial which stands independent of prejudice to the accused. In Bell v. D.P.P. (1985) AC 937 , at p 950, the Privy Council said in relation to the Jamaica (Constitution) Order in Council 1962, s 20(1) of which required that a person charged with a criminal offence be afforded a fair hearing within a reasonable time:
"Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica, applying the common law of England, was powerless to provide a remedy against unreasonable delay, nor do they accept the alternative submission that a remedy could only be granted if the accused proved some specific prejudice, such as the supervening death of a witness. Their Lordships consider that, in a proper case without positive proof of prejudice, the courts of Jamaica would and could have insisted on setting a date for trial and then, if necessary, dismissing the charges for want of prosecution."
Several things may be noted about that passage. To begin with, it is obiter. It cites no authority for the propositions there stated. Though their Lordships found some guidance in Barker v. Wingo (1972) 407 US 514 , that case turned on the Sixth Amendment to the Constitution of the United States. Finally, the remedy seen by their Lordships to be generally appropriate was not the granting of a permanent stay but the bringing of the case to trial. In the instant case there was a declaration that the applicant's "right to a fair hearing within a reasonable time by an independent and impartial court established by law has been infringed" (at p 955), their Lordships anticipating that, in the particular circumstances, the applicant would be discharged and not tried again.
The remedy sought in the present case, namely, the granting of a permanent stay, has its own problems. Professor Amsterdam, "Speedy Criminal Trial: Rights and Remedies", (1975) 27 Stanford Law Review 525, at p 534, describes the proposition in Strunk v. United States (1973) 412 US 434 , at p 440, that when a defendant has been denied a speedy trial, "dismissal must remain ... 'the only possible remedy'" as "incredible". As he points out at p 535:
"Surely, the primary form of judicial relief against denial of a speedy trial should be to expedite the trial, not to abort it."
The same may be said about the remedy of a permanent stay of judicial proceedings. Why is not the appropriate step for a court, faced with an unreasonable delay, the giving of directions necessary to ensure that the matter is brought to trial? To say this is not to ignore the court's other commitments or those other considerations that bear upon the securing of a trial date. But there is a great deal of force in Professor Amsterdam's comment, at p 525:
"Progress toward the difficult goal of providing expeditious handling for the large volume of the country's criminal business cannot be achieved by the mere manipulation of legal doctrine. The ingredients of any prescription for the 'national ill' of lagging criminal justice must encompass far more basic institutional changes."
And this, I think, points up the difficulty of giving content to the notion of a right to a speedy trial where the accused has suffered no prejudice because of the delay. Right and remedy cannot be divorced. In that situation, what considerations justify dismissal of the proceedings or their stay? If there is a right to a speedy trial, the remedy is to have a speedy trial or, at any rate, a trial as speedy as the legal system permits. Byrne, "The right to a speedy trial", (1988) 62 Australian Law Journal 160, at p 162, comments:
"Where it is claimed that the right to a speedy trial has been denied, the correct approach is to determine whether there has been a breach of the right to a speedy trial and then decide what effect the breach has had. The effect of the breach will govern the appropriate remedy and to this end the court is not restricted to ordering a stay of proceedings. In appropriate circumstances the court can order the release of the accused person from custody pending trial or direct that the hearing be expedited. Only where delay has substantially prejudiced or is likely to prejudice substantially the fair trial of the person or has become oppressive is it necessary to take the drastic step of staying the action for abuse of process."
In truth, what is there being asserted is a right to a speedy trial which, as distinct from the right to a fair trial, carries no remedy other than one aimed at securing an early hearing and alleviating the position of the accused in the meantime. This is no more than the exercise of power vested in the court to prevent unfairness by doing what it can to ensure that a matter is brought to trial without unnecessary delay.
In the same way Barker v. Wingo, referred to by the Privy Council in Bell v. D.P.P. and relied upon to some extent by the appellant, proves on examination to be a very shaky support for the proposition that there exists a right to a speedy trial. Although the Sixth Amendment, in its terms, ensures to an accused "the right to a speedy and public trial", the Court rejected the notion of an inflexible rule and held that an accused's constitutional right involves "a balancing test, in which the conduct of both the prosecution and the defendant are weighed" (at p 530). The Court identified, at p 530, four of the factors to be taken into account:
"Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."
For a more recent illustration of the way in which the Supreme Court of the United States approaches that question, see United States v. Loud Hawk (1986) 474 US 302 .
Although, in The Queen v. Clarkson (1987) VR 962 , at p 973, the Full Court of the Supreme Court of Victoria, said that "it is widely recognized that there is at common law a right to prompt trial", it is apparent that what the Court was concerned with was its power to protect its process from abuse in circumstances where a trial may prove unfair to an accused. The same considerations underlay the decision of the Queensland Full Court in Cooney (1987) 31 A Crim R 256.
The remedy of a stay assumes significance when an accused's complaint is that, by reason of delay, he has been prejudiced in his defence. To bring the matter to trial does not assist the accused in those circumstances. At the same time, it may be difficult to justify a dismissal of the charge if the Crown is ready to proceed. A stay may then be appropriate. But, that is an aspect of the right to a fair trial, a right which is unquestioned, not of an independent right to a speedy trial. "There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial": Gibbs A.C.J. and Mason J. in Barton v. The Queen (1980) 147 CLR 75 , at p 96. See also Connelly v. D.P.P. (1964) AC 1254 , at pp 1301-1302, 1347.
In Barton, abuse of process and fair trial are linked by Gibbs A.C.J. and Mason J. as they are by Wilson J., at p 111, though Wilson J. identifies abuse of process as generally relating to the charge itself and fairness as going to procedures that have been followed or are proposed to be followed. It is consistent with authority and principle to regard each notion as part of the responsibility of the courts to see that justice is done to the parties and to the wider community, ensuring that the appropriate remedy is applied in the particular case. Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.
Once the present appellant is driven to rely upon his right to a fair trial, his case disappears for he has failed to show that the majority in the Court of Appeal erred in their approach to his application for a stay of proceedings on the indictment. There is more than one interest involved in the trial of the appellant. The Crown has an interest in bringing him to trial; he, of course, has an interest in obtaining a fair trial; running in parallel is the public interest that charges of serious offences be disposed of but that they be disposed of at a hearing which is fair and not oppressive to the person charged. See Barton, at p 102; also Clarkson, at pp 971-972; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32. The court is alert to see that a person charged receives a fair trial, not to punish the behaviour of the Crown. As Kirby P. pointed out in the Court of Appeal, there is no suggestion in the present case that the prosecuting authorities deliberately caused the delay to gain some advantage for themselves. The appellant's real difficulty is that, notwithstanding a considerable delay in bringing him to trial (for four years of which no satisfactory explanation was offered), he does not suggest any actual prejudice as a result.
Though the appellant argues that the delay has brought about "presumptive prejudice", the argument is not persuasive. It is enough to borrow the words of Kirby P. in the Court of Appeal:
"This is not, after all, a case the trial of which will involve, as many corporate offences do, complex documentation and interrelated transactions. In such cases the erosion of memory over time could work a serious injustice to an accused person. Here, the basic Crown case will be proof of the financial transactions said to have been made without authority. That proof will rely very heavily upon cheque butts and bank records. No witnesses have died. The documentary evidence remains for the jury's consideration and, if so desired, for the accused's explanation."
No doubt the appellant has been subjected to anxiety and also to inconvenience. The Court was told that bail included reporting conditions and the surrender of the appellant's passport. But it was not suggested that at any time a need had arisen to seek a variation of bail conditions. The appellant has not pointed to any particular aspect of the delay which has prejudiced his defence or which otherwise would make it unfair to him for the charges to proceed.
The appeal should be dismissed.