DU V DISTRICT COURT & ATTORNEY-GENERAL HC AK CIV 2005-404-355

DU V DISTRICT COURT & ATTORNEY-GENERAL HC AK CIV 2005-404-355 23 November 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2005-404-355UNDER the Judicature Amendment Act 1972 IN THE MATTER OF a decision of the Auckland District Court under s 25(b) of the New Zealand Bill of Rights Act 1990 BETWEEN JIAN DU Applicant AND THE DISTRICT COURT AT AUCKLAND First Respondent AND THE ATTORNEY-GENERAL OF NEW ZEALAND Second Respondent Hearing: 28 July 2005 Appearances: Mr Banbrook for applicant Mr Powell & Ms Walker for Attorney-General Judgment: 23 November 2005 at 4.00 pmJUDGMENT OF WINKELMANN JSolicitors:John Holmes, Auckland Crown Law Office, WellingtonCounsel:A D Banbrook, Auckland A M Powell, Crown Law, WellingtonIntroduction[1] In October 2004, the applicant Jian Du applied to the District Court for an order staying proceedings against him on the grounds that because of delays in bringing the counts with which he is charged to trial, there had been a breach of s 25(b) of the New Zealand Bill of Rights Act 1990 (the Act). That application was declined, and the applicant now seeks to review the District Court decision. [2] The Attorney-General resists the application for review on the ground that the original decision was correct, and that there has been no undue delay. Alternatively, if there has been undue delay, the Attorney-General invites the Court to reconsider the remedies available for a breach of s 25(b). The Attorney-General contends that a stay of prosecution is not the only remedy available, and that in this case the Court should consider a more proportionate response, a declaration that there has been undue delay and an order for an expedited hearing.Factual background[3] On 6 April 2003, Jian Du was involved in an altercation at his house. It is clear from the statements of witnesses that there were a number of participants in the fight, but he has been charged as follows:Count 1 – Injuring with intent to injure – s 189 Crimes Act 1961; Count 2 – Assault with a weapon – s 202C Crimes Act; Count 3 – Assault with intent to injure – s 193 Crimes Act; Count 4 – Assault on a female – s 194 Crimes Act; Count 5 – Threatening to kill – s 306 Crimes Act; Count 6 – Threatening to kill – s 306 Crimes Act.[4] The Crown case is that on 6 April 2003 the two complainants, Jun Pan and Li Ning, went to Jian Du's house where he was living with a number of other Chinese students. Li Ning had previously lived at the address. The purpose of their visit was to uplift her belongings. Upon arrival at the property, Jun Pan and Li Ning discovered the locks had been changed. An argument ensued with Jian Du. Thecomplainants attempted to leave but Jian Du stopped them. He produced a Swiss army knife and cut Jun Pan's face (count 1). He pulled or pushed Jun Pan to the ground and struck his head and body repeatedly with a softball bat (count 2). Jian Du and his associates kicked Jun Pan while he was on the ground (count 3). At this point, the second complainant, Li Ning intervened. While attempting to stop the altercation, Jian Du slapped her on the face (count 4). She was then threatened that she would be killed if she phoned the police (count 5). Jian Du also threatened to kill Jun Pan (count 6). [5] The defence case is that Li Ning was causing trouble at the flat because she refused to pay her share of the rent and other flat expenses. The flatmates agreed that she should leave and live elsewhere. On 6 April 2003 Li Ning arrived at the flat with Jun Pan to collect her belongings. Jun Pan was smoking in the house and Jian Du asked him to go outside to smoke. Jian Du pushed Jun Pan indicating he was to leave. An argument ensued and Jun Pan punched Jian Du in the eye, breaking his spectacles. Another student living at the address kicked Jun Pan who the fell to the ground. A fight between Jian Du and Jun Pan began and each received minor injuries. Following this altercation Li Ning and Jun Pan left the address but later returned with a number of associates. There was a further scuffle. [6] Jian Du was arrested on 7 April 2003.Procedural history[7] Jian Du first appeared in the Auckland District Court on 7 April 2003 and thereafter he appeared before the Court on numerous occasions prior to 3 December 2004 when his application for an order dismissing the charges against him was heard by the Court. [8] It is convenient to set out the appearances made by the applicant at the District Court: - 7 April 2003 remanded on bail for pre-depositions hearing; - 2 May 2003 further remand;- 9 May 2003 appeared for bail variation; - 27 June 2003 appeared for depositions hearing; - 14 July 2003 received draft indictment from the Crown; - 7 August 2003 appeared at call-over; - 30 September 2003 appeared at pre-trial call-over; - 23 October 2003 appeared at general call-over; - 11 November 2003 appeared at pre-trial call-over; - 27 April 2004 appeared at pre-trial call-over; - 3 May 2004 appeared at pre-trial call-over; - 13 May 2004 appeared at general call-over; - 20 May 2004 appeared at general call-over; - 1 July 2004 appeared at general call-over remanded to call-over on 26 October 2004 And in relation to the present application: - 7 October 2004 call-over re: s 25(b) application; - 19 October 2004 fixture for hearing of s 25(b) application; - 4 November 2004 call-over in relation to adjourned hearing of s 25(b) application; - 3 December 2004 hearing of s 25(b) application. [9] Jian Du was scheduled to go to trial on 13 April 2004, but that date was a legal holiday. That error was discovered on 23 October 2003, and the firm April trial date was changed to a stand-by trial date for 3 May 2004. The trial did not take place in May 2004, and was rescheduled to November 2004. The 19 October 2004 hearing of the s 25(b) application was not able to proceed as a Crown representative was not present. The Crown has conceded this was because of a mistake on its part. Because the s 25(b) hearing could not proceed on 19 October 2004, the trial date of 1 November 2004 was vacated and the trial was subsequently rescheduled for 8 August 2005. The lapse of time between the commencement of the criminal process against the applicant and the scheduled hearing date when the applicant raised his objection is 20 months. By the time of the hearing of the review application before me, it was clear that some 28 months would elapse before trial. Both counsel wereagreed that the current application should proceed, and that the trial should await the decision of this Court.The Judge's decision (3 December 2004)[10] The District Court Judge noted the factual background and the submission that the delay had prejudiced the applicant because a vital witness, He Guo Dong, had returned to China. However, this witness had subsequently returned to New Zealand and had a valid visa until March 2005. His whereabouts were not known. [11] The Judge noted that although the trial date was set down for August 2005 "there is time available possibly in January of 2005 and also in February and March". [12] The decision declining the application for stay was delivered at the end of the argument, and was an oral judgment. The Judge directed herself that the test was (at [9]):"whether the delay has directly or indirectly affected the right of the applicant to a fair trial and in the instant case, delay has meant that one has left and is not known where he is in New Zealand on his return and another person has left and the unavailability of these two important witnesses will invariably, seriously prejudice the applicant in his right to a fair trial."[13] The Judge then analysed the situation as follows:[13] In considering all of the matters here, certainly when looks at the chronology that is set out in the applicant's submission, there has been some time in the delay and as the defence point out in their delay, the last period of delay is completely attributable to the Crown in that there was no Crown representative here to argue this application when it was set down on 19 October and therefore a firm trial date had to be vacated. [14] So looking at the length of time that the matter has taken to come from 7 April through to now, it is a fairly long amount of time. Does that of itself amount to undue delay? In terms of the decided cases and in terms of what is known about the administrative arrangements of the District Court at Auckland, regrettably in my view, this could not be seen as undue delay on its own. Is it in terms of possible prejudice with the lack of knowledge as to where He Guo Dong is and the other witness having returned to China, is that sufficient prejudice coupled with the delay to dismiss for breach of s 25B(f) (sic)?[15] I think the Crown's submissions that the evidence of the witness in China could be dealt with by video link is somewhat glib. Certainly in terms of the person He Guo Dong who is in New Zealand, a private investigator could be located to find that person and he may then well be able to come along to trial; he having been dealt with, so any self incrimination is not an issue. I would be very surprised if the other witness would give evidence given that self incrimination would probably be a significant issue for that person even if they were in New Zealand. So accordingly, I am of the view that the absence of that witness does not form such a prejudice to this applicant that the Court ought to dismiss the trial for breach of the Bill of Rights Act. [16] The other witness, He Guo Dong, is in New Zealand and can be found in my view with a private investigator's assistance and although the defence has stigmatised the incident as being fairly minor and the charges being rather more heavy than the incident warrants, that is really a matter for the jury to decide. In weighing and balancing all the matters up, I firstly have found that the delay does not amount of itself to undue delay. Coupled with the witness situation, I consider that having said that one witness should still be able to be found, then that does not add also in the balance to the delay to be sufficient to dismiss for breach of the New Zealand Bill of Rights Act and the other witness.The Judge accordingly dismissed the application.Applicant's case[14] First, the applicant argues that the Judge erred in law in that in assessing whether the delay amounted to undue delay she failed to take into account (a) the reasons for the delay and in particular the conduct of the Crown in failing to appear at the hearing on 19 October 2004, which had the effect of postponing yet again the trial date; (b) the extent of the delay, which of itself was prejudicial. The applicant also argues that the Judge gave no or insufficient weight to what the applicant says was proven prejudice to him from the non-availability of material witnesses. Finally he alleges that the Judge did not turn her mind to the totality of all of these factors. [15] Secondly, the applicant alleges unreasonableness but does so only on the basis of a claim that it was unreasonable for the Judge to make a decision that was based on the abovementioned errors of law. Unless Jian Du succeeds on his first ground of review, he cannot succeed with this second argument. Accordingly, the second ground of challenge adds nothing to the first ground referred to above. In the circumstances, I do not propose to consider this ground of challenge further.Attorney-General's reply[16] Counsel for the Attorney-General submits that the Judge applied the correct legal test to the facts as she had found them and that there was no error of fact in her findings. In any case, on a conventional application of Martin v District Court at Tauranga [1995] 2 NZLR 419 a breach of s 25(b) is not made out. [17] In the alternative, counsel for the Attorney-General submits that this Court should reconsider the approach taken to the issue of the remedial response to a breach of s 25(b). The remedy for a breach of s 25(b) should not inevitably be a stay. If a stay is the necessary consequence of finding a breach of the right, this will deter Courts from finding a breach. Because the Courts have treated a stay as an inevitable remedy for a breach of s 25(b), the right protected by s 25(b) has not been given proper effect. Accordingly, other remedies should be explored. Taking this approach, the Attorney-General says that in this case the delay is simply too long and that ought to be acknowledged. By reference to English authority, counsel submits that an alternative remedy (rather than a stay) is warranted in this case. Thus, ultimately, the Judge was right to refuse a stay.Approach on review[18] The Crown is content that this case is reviewable. They point out that the Judge was exercising a discretionary jurisdiction and the jurisdiction should be sparingly exercised. I am satisfied that the High Court has jurisdiction to review a decision such as this one but such power will be sparingly exercised. The District Court's statutory constitution, its separate jurisdiction, its independent powers, and its relationship with the High Court, indicate that its criminal jurisdiction is limited, and it is accordingly in the public interest that it be subject to judicial review:Auckland District Court v Attorney-General [1993] 2 NZLR 129. It follows that decisions in s 25(b) situations are amenable to review: Sinnadury v Auckland District Court & Anor (HC Auckland, M1210/98, 9 October 1998, Nicholson J).Applicable principles[19] Section 25 of the New Zealand Bill of Rights 1990 provides in material part as follows:Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights: (a) The right to a fair and public hearing by an independent and impartial court: (b) The right to be tried without undue delay: (f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:[20] In the United States, the part of the 6th Amendment that protects a speedy trial right has been said to prevent the abrogation of three significant constitutional values: 1. The abridgement of liberty caused by pre-trial incarceration, and to a lesser extent restrictive bail conditions. 2. The anxiety accompanying public accusation or the threat of punishment. 3. Impairment to the ability to conduct a defence. (Smith v Hooey (1969) 393 US 374, 378.) [21] The same values also underpin s 25(b): R v Harmer (CA324/02, 26 June 2003) where the Court of Appeal said at [130]:[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s25(a)) but it is a distinct right whose purpose is also to minimise pre-trial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial.[22] The rationale of s 25(b) therefore goes beyond the traditional or narrow sense of prejudice, namely prejudice to the right to a fair trial. [23] In Martin Cooke P and McKay J expressly adopted the approach to determining what was unreasonable delay taken by a majority of the Supreme Court of Canada in R v Morin [1992] 1 SCR 771. The approach of both Richardson and Hardie Boys JJ to the issue of undue delay was also consistent with Morin. The Court did not examine differences in wording between the Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights Act 1990 (the former specifying for trial within a reasonable time, the latter for trial without undue delay). [24] The Canadian approach was stated by Sopinka J in Morin at 12-13: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the section is designed to protect against factors which either inevitably lead to delay or are otherwise the cause of delay 'It is axiomatic that some delay is inevitable. The question is, at what point does the delay become unreasonable?' While the court has at times indicated otherwise, it is now accepted that the factors to be considered in analysing how long is too long may be listed as follows: 1. The length of the delay; 2 waiver of time periods; 3. the reasons for the delay, including (a) the inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources, and (e) other reasons for delay; and 4. prejudice to the accused.[25] Referring to judgments of other Judges in Morin, Cooke P said further:Lamer and Wilson JJ have taken the view that a finding that the right to trial without undue delay has been infringed goes to the jurisdiction of any Court to put the accused on trial or to continue with the charges against him:Rahey v The Queen (1987) 33 CCC (3d) 289, 306, 308. Even if that bethought too strict a view, there is no reason to refuse a stay in this case where the delay was of the prosecution's making. It will be a sufficient and straightforward remedy.[26] In Martin, the accused was charged with counts of sexual violation in December 1992. The trial was set down for November 1993, a date which the Court was satisfied would have been well within a reasonable time. However it was then held over another four months. This was a result of a telephone call from the prosecutor to the Court Registrar, without the matter coming before a Judge, in order to accommodate the holiday plans of the police officer in charge (and witness). The trial was ultimately delayed 6 months because of what was an improper postponement. The lapse of time, even down to the following March or (as it was later to turn out) May, was not necessarily unreasonable in itself. It became unreasonable because of the particular reasons for the delay: the Crown's conduct. It was significant also that the charges in Martin were of a sexual nature. In such cases a practice note provided that once a trial date was set, any adjournment application would need to be made to the Court and would be scrutinised closely. The accused also suffered prejudice in that he was on restrictive bail conditions throughout (until placed in custody on other matters). The prosecution was stayed. [27] In considering undue delay, it is appropriate to draw a distinction between simple and complex cases: Harmer. Martin itself was a simple case: a straightforward prosecution for the sexual violation of a single victim where no extensive inquiries were necessary. There were not many witnesses and there was no complex technical evidence. Thus, the delay was unacceptable "for a quite simple, though serious case" (per Cooke P). In contrast, Harmer was a "far from simple case". The Crown presented evidence from 90 witnesses and the transcript of evidence ran to almost 1000 pages. Much of the evidence was very technical. The Crown found it necessary to obtain expert evidence from overseas. The investigation was hindered by a statement from Mr Harmer that gave a false picture of death by accident and also had the Police convinced that it was true. That was a "major contributor" to the lapse of time before arrest and charge and continued to have impact on post-charge delay. A stay was refused.Prejudice[28] If actual prejudice to the accused's right to a fair trial caused by lengthy delay can be shown, that is clearly a relevant consideration. [29] However, the prejudice to which a Court may have regard when considering an application under s 25(b) is not limited to prejudice to the right to a fair trial. That follows from the values underpinning s 25(b) referred to above. The Court of Appeal in Harmer therefore accepted that delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge.Application of principles in this caseIncorrect test applied[30] The Judge began her analysis of the argument by stating for herself the legal test to be applied. She stated "the test is whether the delay has directly or indirectly affected the right of the applicant to a fair trial": see [12] above. I am satisfied that this is a mis-statement of the test. As expressed by the Judge, the right preserved in s 25(b) is no more extensive than that preserved in s 25(a), namely the right to a fair trial. It suggests that no delay could be too long, so long as a fair trial remains achievable. Such a test would give no recognition or effect to the other values underpinning s 25(b), namely the undesirability of a person having charges outstanding and unresolved against them for lengthy periods of time, with all the attendant anxiety, and the abridgement of liberty caused by a remand in custody, or on restrictive bail conditions. The Judge's test clearly conflicts with Harmer.Failure to take into account relevant consideration[31] I am also satisfied the Judge failed to take into account a relevant consideration, namely the cause of the delay. The Court of Appeal made clear inMartin that this is a factor to be weighed in determining whether delay is undue. The Judge accepted that on 19 October 2004 no Crown representative was presentarguing the application, and thus the previously firm trial date of 1 November 2004 had to be vacated. The Judge considered the "last period of delay is completely attributable to the Crown". However, when the Judge proceeded to consider whether s 25(b) was breached, she did not take into account that fact. She also did not take into account that it was due to either Crown or Court error, that an earlier firm fixture on 13 April 2004 was unable to proceed (having been allocated on a legal holiday).Weight[32] It was argued that the Judge erred in giving no or insufficient weight to what the applicant argues was proven prejudice to him from the non-availability of witnesses. It is clear however that the Judge turned her mind to the issue of whether the applicant had established actual prejudice arising from the non-availability of a witness, and was not satisfied that he had. The weight a Judge attaches to a relevant consideration in the exercise of a discretion does not usually give rise to a reviewable error. I am satisfied that this ground of challenge must fail.Extent of delay[33] The last ground of challenge is that the Judge failed to have regard to the extent of the delay, which in and of itself was prejudicial to the applicant, having regard to the numerous appearances that the applicant was obliged to make in the District Court. I am satisfied that the Judge did fail to consider whether the delay per se was prejudicial to the applicant, apart from the issue of prejudice to the applicant's right to a fair trial. The test as articulated by the Judge assumed that delay would only be undue if the applicant could establish that his right to a fair trial had been prejudiced. As I have held, this articulation of the s 25(b) right is too narrow. [34] Having found that the first ground of review is made out, this Court has a discretion as to whether or not to quash the decision of the District Court. The central issue in this regard is whether there has been undue delay.Was the delay undue?Length of the delay[35] The Judge noted that the delay from 7 April 2003 until 3 December 2004 was a "fairly long time". She said that regrettably this could not be seen as undue delay on its own because of "what is known about administrative arrangements of the District Court at Auckland". I assume that the Judge means that there are many other cases where similar delays have occurred. Similarly, the Crown say that the delay here was not outside the norm for defended indictable hearings at the Auckland District Court. [36] It is well established that there is no magic time limit which triggers an inquiry or gives rise to a presumption of prejudice: R v B [1996] 1 NZLR 385. However, I note that the delay in this case was similar to that in Martin and in R v Bwhere the delay noted as "substantial and undesirable" by the Court of Appeal (at 390). [37] I have already referred to the need to consider the complexity of the case in determining undue delay. In my view, this case lies closer to Martin in terms of its complexity. It was a straightforward assault involving two victims. The applicant was arrested the day after the event and no extensive inquiries were necessary. Only evidence from those involved would likely have been led (less than 10). UnlikeHarmer there is no complex technical evidence. Therefore the delay was substantial and unacceptable for a relatively simple case.Reasons for the delay: Crown error[38] In this regard, the cause of the delay is a relevant consideration. By the time of the November hearing of the s 25(b) application 20 months had elapsed since the applicant's arrest. Two firm fixture dates had been lost. [39] As to the loss of the initial April hearing date, the Crown filed an affidavit of Richard John Amon dated 20 July 2005. Mr Amon is employed by the Ministry ofJustice as the Judicial Resource Manager for the Northern Region. He deposed as follows:The plaintiff, Mr Du, was at one stage scheduled to go to trial on 13 April 2004 and this was described as a firm fixture. 12 April 2004 was Easter Monday and 13 April 2004 was a legal holiday. That week was scheduled by the Courts as a non-trial week because of the statutory holidays. The schedule was prepared in September 2003 and delivered to the Crown. The initial allocation of a trial date was an error by the Crown. According to the jury trial call-over sheets the 13 April 2004 trial date was allocated on 23 October 2003. On 11 November 2003 that was changed to a stand-by trial date for 3 May 2004.[40] Mr Powell submitted that this was not an error by the Crown, but rather an error by the Court. I am inclined to accept the evidence of Mr Amon that it was an error of the Crown. It is also significant that there was no effort to replace the missed fixture with a firm fixture. The trial was adjourned to a stand-by fixture. [41] The second error made by the Crown which materially contributed to the delay in reaching a trial date is referred to in an affidavit of Maxine Minaxi Mora dated 13 May 2005. Ms Mora is the trial administrator at Meredith Connell, Crown Solicitors, Auckland. She told Crown counsel that the pre-trial application was to be heard on 23 October 2004. She candidly admits that was a mistake on her part as the hearing was for 19 October 2004. It was a direct consequence of this mistake that the trial fixture allocated for 1 November 2004 was vacated and subsequently rescheduled for 8 August 2005. [42] Mr Powell submitted that the applicant cannot complain of that delay because he could have elected to proceed with the 1 November 2004 trial and forego his rights to bring the application under s 25(b). I do not accept that submission. The applicant was entitled to ask that his application under s 25(b) be determined prior to trial in the particular circumstances, where the bringing of the application was not a delaying tactic, and where he was alleging prejudice to a fair trial. [43] The Crown's error does not fall into the same category as the adjournment obtained in Martin, which the Court of Appeal viewed as improper on the part of theCrown prosecutor: see for example McKay J at 433. However, I am satisfied two firm fixtures were missed by virtue of the Crown's error.Reasons for the delay: administrative constraints[44] The District Court Judge indicated the delay in this case was typical in the District Court. She said that because of this, the delay "could not be seen as undue delay on its own". [45] Ministry of Justice personnel filed affidavits expanding upon the extent of delays in the Auckland District Court. The evidence provided was to the effect that there are more cases requiring resolution than there are jury Courts available to hear them. There is an informal system of allocation largely based on resolving the oldest cases first, but with an allowance for particular cases which may have greater priority. It is said to be technically possible to adhere to a specific direction that a case be tried, but that this would take at least 8 weeks to arrange. Data supplied by Mr Amon indicates the percentage of cases over 2 years old has grown from 13.3% in November 2003 to 18.3% in April 2005. [46] There is no information before me as to the nature of the cases awaiting trial for over 2 years. If those cases are in a similar category to the present, namely simple cases requiring a limited number of witnesses and with no particular technical requirements, then that is a matter of grave concern. [47] In Martin, Cooke P said at 425:A Governmental failure to allocate adequate resources could not excuse clear breaches of the right to be tried without undue delay, and any restrictive expenditure policy would entail a risk that offenders might escape trial. But the measures being taken by the Government are one factor to be weighed in deciding whether delay can fairly be described as undue. If it is clear that the Government is conscious of a problem and is taking prompt steps to deal with it, any Court will naturally be reluctant to stay proceedings on the ground of systemic delay only.[48] In this case it is clear that the Auckland District Court is under extreme pressure and that the number of cases labouring under lengthy delays is steadilyincreasing. Notwithstanding that, the evidence also suggests that priority could have been allocated to this matter after the first or even second missed firm fixture. [49] I endorse Paterson J's dicta in Police v Auckland District Court (1999) 5 HRNZ 419, 431 that the fact that delay is systemic does not justify it.Prejudice[50] At the first hearing of the s 25(b) application, the applicant pointed to prejudice to his right to a fair trial. The Judge referred to the absence of two witnesses, He Guodong and Mei Yang. He Guodong was apparently in New Zealand and had a student visa which expired on 31 March 2005. Her Honour was satisfied that he could be located in New Zealand with the assistance of a private investigator as was suggested by the Crown. The other witness, Mei Yang was outside New Zealand. Her Honour accepted that while the evidence could be heard via video link, there would be self-incrimination issues as it was alleged that Mei Yang hit Jun Pan with the baseball bat. [51] Since the application was heard in November 2004, the position has changed. Although Mei Yang is still in China, He Guodong's visa expired on 31 March 2005. It is not clear whether he is still in New Zealand. A third defence witness Wang Qi has also returned to China. The applicant says these witnesses are a crucial part of the defence case. They were eye-witnesses to the altercation which has given rise to the charge. Given the nature of the applicant's defence, I am satisfied that the absence of eye-witnesses will cause prejudice to the applicant. The Crown points out that although evidence could be taken by video link or admission of a hearsay statement under the Evidence Amendment Act (No 2) 1980, they concede that this would not a desirable approach in this case. Also, given the competing accounts of the altercation in this case, I am satisfied the absence of cross-examination would be material and potentially prejudicial to the applicant.Conclusion - undue delay[52] I have therefore found that the delay was substantial and unacceptable for a case of this kind. A significant part of the delay was attributable to the action of the Crown. No apparent effort was made to expedite the hearing after the loss of the first firm fixture. Prejudice has resulted. Taking these matters into consideration, I am satisfied that there has been a breach of s 25(b).RemedyNew Zealand approach thus far[53] In Martin, diverging views were expressed as to the remedy for a breach of s 25(b). Cooke P saw a stay as a logical response. He said at 425:It would normally be unsatisfactory (to say the least) for the state to insist on trial thereafter. A trial would then ipso facto be in breach of the right of the person charged to be tried without undue delay.[54] Richardson J said that where delay has affected the fairness of an ensuing trial, then vindication of the right may not require a stay, but that the trial be expedited rather than aborted. [55] Hardie Boys J said a stay should only be ordered where the vindication of the right can be achieved in no other satisfactory way. He said at 432:The right is to trial without undue delay; it is not a right not to be tried after undue delay.[56] Casey J questioned whether the minimum remedy available to the Courts to vindicate the rights of an accused suffering a breach of s 25(b) is only a stay of proceedings. His Honour regarded considerations of prejudice (or the lack of it) as more naturally relevant to the question of appropriate remedy. He cited La Forest J in Rahey v The Queen [1987] 1 SCR 588 who stated that often the most obvious remedy is to expedite the proceedings.[57] McKay J said that a stay is appropriate for the most inordinate and inexcusable delays. However, he acknowledged other alternatives such as the Court intervening and directing an early trial date so that the delay is terminated and the right is recognised. His Honour said an important consideration might be whether the delay has been such as to prevent a fair trial taking place. He acknowledged that this factor could be considered "in choosing the appropriate remedy" (at 433). [58] In Martin, the Crown conceded that if undue delay was established then the remedy ought to be a stay of proceedings. Since Martin, the Crown says that the Courts have operated on an assumption that a stay is a necessary remedial response to a breach of s 25(b). Recently, in Harmer, the Court indicated its unease with assumptions about the s 25(b) remedy and said at [135]:We add that, if we had come to the contrary conclusion, it does not follow that the remedy would have been the setting aside of the conviction. The freeing of a man found guilty of a most serious offence would have been an entirely disproportionate response to delay which was not causative of prejudice. In the line of decisions culminating in Mills v HM Advocate[2002] 3 WLR 1597 the Privy Council has found troublesome the question of remedy for delay experienced by a guilty person. In Mills the remedy granted was a small reduction in sentence. We must leave for another day whether that would be an appropriate remedy in a case of this kind if undue delay were shown to have occurred. Since in the present case it was not, the only ground on which the sentence appeal was advanced before us has not been established.Canadian and US approach[59] In both Canada and the United States a permanent stay or dismissal of the case follows a breach of the right to be tried without undue delay: Rahey v The Queen; Strunk v United States (1973) 412 US 434. This largely correlates to the New Zealand experience thus far.United Kingdom approach[60] Since Mills, noted by the Court of Appeal in Harmer, there have been further significant developments in the United Kingdom.[61] In the United Kingdom the right to a speedy trial is given legislative recognition in the European Convention for the Protection of Human Rights and Fundamental Freedoms, which enters domestic law by virtue of the Human Rights Act 1998 (UK). Section 6(1) of the Human Rights Act makes it unlawful for a public authority to act in a way that is incompatible with a convention right. Section 8 of the Act provides that where any act (or proposed act) is (or would be) unlawful the Court may grant such relief as it considers just and appropriate. In HM Advocate v R [2004] 1 AC 462 a majority of the Privy Council noted the divergence of views between Cooke P and Hardie Boys J in Martin. They found that s 6 was critical in the United Kingdom and that a failure to bring a prosecution in a reasonable time infringed the convention right and any further steps in the proceeding would continue to infringe it. The majority rejected the notion that the proceedings up to trial and the trial itself were sensibly divisible so as to allow a Court to hold that any pre-hearing delay did not affect the hearing per se. [62] Subsequently, the House of Lords has declined to follow HM Advocate. InAttorney General's Reference (No 2 of 2001) [2004] 2 AC 72 the Attorney General for England and Wales sought clarification from the English Court of Appeal as to whether a permanent stay of proceedings was the required result where the speedy trial right had been breached. The question was referred to the House of Lords. In the majority judgment Lord Bingham of Cornhill acknowledged the "powerful argument" that if a public authority causes or permits delay to occur such that it cannot be heard in a reasonable time then any further prosecution must be contrary to s 6 of the Human Rights Act. However, His Lordship held there were four reasons which compel the argument's rejection. The first and third reasons are particularly apposite to the New Zealand context. [63] The first reason was that the right secured is a right to trial. Other rights, such as the right to a fair trial, if breached may result in a new trial (if a fair trial can still be held). It would be anomalous if the remedy for delay (where the delay does not taint the basic fairness of the trial) was more far-reaching than for breach of other basic criminal procedure rights. It would be even more anomalous that the right should be vindicated by ordering that there be no trial at all.[64] The third reason was that a rule of automatic stay would effectively emasculate the right. There is a "very real risk" that if proof of breach is held to require a stay, the judicial response will be to set the threshold unacceptably high, since few Judges relish the prospect of unleashing dangerous criminals on the public. [65] Lord Bingham concluded at 89:The appropriate remedy will depend on the nature of the breach and all the circumstances, including particularly the stage of the proceedings at which the breach is established. If the breach is established before the hearing, the appropriate remedy may be a public acknowledgement of the breach, action to expedite the hearing to the greatest extent practicable and perhaps, if the defendant is in custody, his release on bail. It will not be appropriate to stay or dismiss the proceedings unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. The public interest in the final determination of criminal charges requires that such a charge should not be stayed or dismissed if any lesser remedy will be just and proportionate in all the circumstances.[66] His Lordship said that if the breach of the reasonable time requirement is established retrospectively (after there has been a trial) the appropriate remedy may be a public acknowledgement of the breach, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. Unless unfairness is established it would not be appropriate to quash any conviction. Lord Bingham said there may be cases where the delay is of such an order, or where a prosecutor's breach of professional duty is such as to make it unfair that the proceedings against a defendant should continue. His Lordship said that Martin may be an example of the latter. [67] Six of the eight other Law Lords concurred with Lord Bingham's approach, but Lord Hope of Craighead and Lord Roger of Earlsferry dissented. [68] Lord Hope emphasised that the case was about remedy and not the right per se. He said that s 6(1) of the Human Rights Act was the essential link between a complaint about incompatibility with the Convention and remedy. His Lordship felt that the majority had overlooked s 8(1) of the Act which provides for a discretionary approach to relief and remedy. Significantly, His Lordship commented on Martin. He said at 101 that Hardie Boys J's dictum "no right not to be tried" could not be faulted as a comment on the New Zealand system where the Court "is free it make itsown choice". He also commented at 106 that Martin and its strict approach to delay has had a salutary effect on the criminal justice system in New Zealand. [69] Lord Roger agreed with Lord Hope (at 121) and also emphasised ss 6 and 8 of the Human Rights Act. His Lordship made a useful historical point at 121:In the past there was less call for a specific timetable for the trial of defendants who were at liberty: with relatively few offences and prosecutions, in practice legal systems were able to deal with such cases fairly promptly. Nowadays, with new offences and crowded court calendars, there is more need to recognise explicitly that, if the state charges someone with an offence, the charge should not be left hanging over him: he is entitled to have it determined by a hearing within a reasonable time.Academic commentary[70] Before moving to consider whether New Zealand should adopt Attorney General's Reference, I wish to briefly consider academic commentary on this issue. [71] In 'Affirming the Nation's Fundamental Values – the Bill of Rights on Trial Without Undue Delay' (1995) 1 HRLP 56, 62-63, Rishworth said that the logic of the Canadian approach is compelling and that a stay seems to be a minimum remedy. However, and significantly in my view, the author recognised that:the very seriousness of this remedy will inevitably lead to greater tolerance of delay in order to avoid the granting of stays in all but the most deserving of cases.[72] Rishworth et al, The New Zealand Bill of Rights, Oxford, 2003 recognise that the appeal of flexible remedies is that they avoid the inevitability of terminated proceedings, particularly in a serious case. The learned authors argue that there is a conceptual difficulty with any remedy for a s 25(b) breach which allows a trial to take place. If s 25(b) has been infringed, then any hearing of the case would involve a further breach of the right. The authors submit that a stay is the most straightforward remedy and that money damages is an inadequate alternative (at 738- 739). However I endorse Lord Bingham's reasoning (at 89) that the prosecutor and the Court do not further breach the right in continuing to prosecute or entertainproceedings after a breach since the breach consists in the delay which has accrued and not in the prospective hearing. [73] A differing view to Rishworth's was expressed by Professor Amsterdam, "Speedy Criminal Trial: Rights and Remedies" (1975) 27 Stan L Rev 525. Professor Amsterdam argued that the remedy for breach should be related to the interests breached. Speaking on the United States situation, Professor Amsterdam said the right has been twisted "totally out of shape" (at 539) such that Judges have held that shockingly long delays have not violated the right because of undesirability of turning criminals loose. In terms of relief Professor Amsterdam suggests at 535-536:Surely the primary form of judicial relief against denial of a speedy trial should be to expedite the trial not to abort it.If the sole wrong done by the delay is "undue and oppressive incarceration prior to trial" the remedy ought to be release from pre-trial confinement; if prolongation of the anxiety and other vicissitudes "accompanying public accusation" is sufficiently extensive, the remedy ought to be dismissal without prejudice; and it is only when delay gives rise to "possibilities [of impairment of] the ability of an accused to defend himself" or when a powerful sanction is needed to compel prosecutorial obedience to norms of speedy trial which judges cannot otherwise enforce, that dismissal of a prosecution is warranted.A new approach for New Zealand[74] I find Professor Amsterdam's analysis compelling and consistent with the reasoning of Lord Bingham in Attorney General's Reference which I respectfully adopt. I am satisfied that it is appropriate for the New Zealand context and the time has come for New Zealand Courts to be more flexible as to remedy wherever a breach of s 25(b) is made out. This is for the following reasons: 1. Previously prejudice to the accused was treated as an almost de facto requirement before a breach of s 25(b) was found: see for example R v Grant CA471/95, 29 May 1996; R v Palmer (1996) 2 HRNZ 458 and R v Dow CA407/95, 15 March 1996. The concern was mainly with any prejudice to the accused's right to a fair trial: Grant at 5; R v B [1996] 1 NZLR 385, 390; Dow at 4-5. The corollary of such an approach is that any breach of s 25(b) will necessarily entail a breach of the fair trial right enshrined in s 25(a). However, such an approach fails to recognise that s25(b) creates a "distinct" right which does not strictly require prejudice to the accused (recognised recently in R v Harmer). With a more flexible remedy the Courts will not be as loathe to find a breach of s 25(b) where there is an absence of prejudice to the fair trial right which the applicant can easily point to. Section 25(b) can therefore be given independent recognition based on delay alone, rather than the presence or otherwise of prejudice in its narrow sense. 2. Such an approach is in keeping with the manner in which the discretion to stay criminal proceedings is exercised in the abuse of process context. In Fox v Attorney-General [2002] 3 NZLR 62 the Court of Appeal, with apparent approval, cited the words of Lord Lowry in R v Horseferry Road Magistrates' Court, ex p Bennett [1994] 1 AC 42 at 74: I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a disciplinary jurisdiction and ought not to be exercised in order to express the court's disapproval of official conduct.The Court of Appeal said in Fox at [37] that: to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.3. The flexibility of such an approach is consistent with the flexibility endorsed by the Court of Appeal in R v Shaheed [2002] 2 NZLR 377 where it said in that context that the balancing test enunciated would (at [156]): it is hoped, lead to a judicial technique which involves a greater exercise of judgment than the previous focus on a "prima facie rule" may have encouraged.Shaheed emphasised proportionality of response to a breach of the Bill of Rights Act: see [26], [140], [143] and [156]. I am satisfied that Lord Bingham's approach promotes proportionately rather than supplying an accused with a "windfall benefit of criminal immunity": Amsterdam, (1975) 27 Stan L Rev 525, 539. The Court of Appeal's recent comments in R v Harmer at [135] are apposite:The freeing of a man found guilty of a most serious offence would have been an entirely disproportionate response to delay which was not causative of prejudice.4. Since Martin, remedies available for a breach of the Bill of Rights have developed. As Shaheed demonstrates they are not static. Similarly, as pointed out by Lord Bingham the availability of a declaration should not be overlooked. As the learned authors of Rishworth et al (2003) observe at 833 a declaration may have little coercive effect but it goes some way to giving the right explicit recognition (see Lord Roger's dicta above). Indeed, the authors of Rishworth et al go on:A declaration in this context has the salutary effect of condemning the Crown's deviation from the required standards of conductNot only is there greater symbolic effect, but a declaration may be more likely to bring a matter to the attention of Parliament as well as the public, thereby promoting political accountability for the breach as a result.This case[75] I remind myself that a stay or dismissal of proceedings is not the appropriate remedy for a breach of s 25(b) unless (a) there can no longer be a fair hearing or (b) it would otherwise be unfair to try the defendant. However, here, I have already held that the applicant will be prejudiced in any trial which may occur in the future. I am therefore satisfied that there can no longer be a fair hearing and that it would be unfair to try the applicant in these circumstances. Accordingly, the prosecution should be stayed. [76] I record that if prejudice was not made out in this case I would have been inclined to declare a breach of s 25(b) and order that the trial be heard by a certaindate in the very near future (of course, bearing in mind that such an order would take 8 weeks to implement). [77] For completeness, I also record that absent prejudice, I would not have regarded the delay of such an order or the prosecutor's breach of professional duty so serious as to justify a stay (see [66] above).Conclusion[78] Accordingly, the application for review is granted. The order of the District Court is set aside and the criminal prosecution against Jian Du is stayed. Winkelmann J