This is the second blog in our Human Rights Act series, looking at the decision of the ACT Supreme Court in R v Mills in relation to unreasonable delay. For information on right to fair trial under human rights legislation, please see our earlier blog post entitled Human Rights Act 2019 (Qld): Right to Fair Hearing’.

Unreasonable delay is specifically enumerated as a right in the Human Rights Act (HRA), found in the same form in the ACT’s Human Rights Act. In R v Mills the ACT Supreme Court, in granting a permanent stay, considered what amounts to ‘unreasonable delay’ and the options available to the court to provide a suitable remedy in the context of section 22(2)(c) of the Human Rights Act 2004 (ACT). Unreasonable delay also goes to the fairness of trial.[1]

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.  While Mills was committed to stand trial in September 2007, the trial commenced in July 2008 but was later aborted after an informant revealed during evidence that DNA analysis of bags containing the drugs had been tested. This contradicted the information provided to the defence, and was crucial to the defence’s arguments. A pre-arraignment conference was scheduled in June 2009 but this was twice adjourned for various reasons. The matter was eventually set down for trial in March 2011, four years after Mills was charged.[2]

Mills’ sole argument was unreasonable delay relying on s 22(2)(c) of the Human Rights Act 2004 (ACT).[3] The delay was duly acknowledged by the prosecution, but they argued that it would not be unfair to try Mills and that the appropriate response was not a permanent stay.[4]

The decision of the court was to grant a permanent stay. Higgins CJ commented that the right to trial without unreasonable delay was stronger under the Human Rights Act 2004 (ACT) than common law,[5] but that this did not necessarily indicate a right to stay.[6] Higgins CJ found that for a matter to take four years to come to trial after the decision to prosecute was unreasonable. His Honour found that ‘[t]he 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’.[7]

In relation to Mills’ particular circumstances, she had raised the issue of unreasonable delay at an early stage and had been subject to the anxiety and expense of two trials without positive reasons being advanced by the Prosecution for the delay and their failure to promptly test the drug bags (which caused further delay).[8] Higgins CJ further commented that though the lack of resources available to the courts 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“.[9]

In coming to His Honour’s decision, Higgins CJ referred to R v Upton[10] in relation to factors that go to the reasonableness of delay:[11]

  • Length of delay;
  • Waiver of time periods;
  • Reasons for delay, including:
    1. Inherent time requirements of the case
    2. Actions of the accused
    3. Limits on institutional resources, and
    4. Other reasons for delay; and
  • Prejudice to the accused

The relative seriousness of the case, issues of fact in the case and the likely future delay were also considered in R v Upton.[12]


[1] See Foote v Somes [2012] ACTSC 63; Australian Law Reform Commission, Traditional Rights and Freedoms – Encroachments by Commonwealth Laws (Interim Report No 127, July 2015) 279.

[2] See R v Mills [2011] ACTSC 109, [1]-[15] (‘Mills’).

[3] Ibid [14].

[4] Ibid [16]-[19].

[5] Ibid [21].

[6] Ibid [22].

[7] Ibid [39].

[8] Ibid [37]-[38].

[9] Ibid [44].

[10] [2005] ACTSC 52 (1 July 2005), [22], citing Martin v Tauranga District Court [1995] 2 NZLR 419 (Cooke P) and R v Morin (1992) 71 CCC (3d) 1..

[11] Mills (n 2) [25].

[12] Ibid [26].