Permanent Stays

Mason CJ (would dismiss the appeal on the basis that the appellant had not shown that the lapse of time is such that any trial is necessarily unfair)

1. The facts relevant to this appeal are set out in the judgment of Toohey J. Two questions are raised by those facts. The first question is whether the common law of Australia recognizes a right to a speedy trial separate from and additional to the right to a fair trial. The second is whether in this case the appellant's right to a fair trial has been prejudiced by virtue of undue delay amounting to an abuse of process. The appellant urges an affirmative answer to each question and accordingly seeks a permanent stay of the charges against him.

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11. Moreover, objections to the discretion to prevent unfairness give insufficient weight to the right of an accused person to receive a fair trial. That right is one of several entrenched in our legal system in the interests of seeking to ensure that innocent people are not convicted of criminal offences. As such, it is more commonly manifested in rules of law and of practice designed to regulate the course of the trial: see Bunning v. Cross [1978] HCA 22; (1978) 141 CLR 54; Reg. v. Sang [1979] UKHL 3; (1980) AC 402. But there is no reason why the right should not extend to the whole course of the criminal process and it is inconceivable that a trial which could not fairly proceed should be compelled to take place on the grounds that such a course did not constitute an abuse of process.

12. The New Zealand Court of Appeal has recognized the inherent power of a superior court to stay or dismiss a prosecution for abuse of process in terms consistent with the view of Lord Devlin, in Moevao v. Department of Labour (1980) 1 NZLR 464, at pp 470-471, 473-476, 478-482. While the members of the Court focussed upon the concept of abuse of process, it is clear that they took a wide view of what might constitute such an abuse. The approach is best exemplified in the judgment of Richardson J., who stated (at p 481):

"It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case.

It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice."

In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed.

13. For the reasons given, I agree with the approach of Richardson J. as I have explained it. Bearing in mind his Honour's relatively broad view of what may amount to an "abuse of process", I agree also with his explanation of the rationale for the exercise of the power to stay a prosecution. His Honour stated (at p 482):

"The justification for staying a prosecution is that the Court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor ... that the Court processes are being employed for ulterior purposes or in such a way ... as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the Court process by those responsible for law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the Court."

The continuation of processes which will culminate in an unfair trial can be seen as a "misuse of the Court process" which will constitute an abuse of process because the public interest in holding a trial does not warrant the holding of an unfair trial.

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15. Once it is recognized that the courts may order that criminal proceedings be stayed for the purpose of preventing injustice to the accused caused by undue delay, it necessarily follows that other orders may be made in cases of undue delay for that purpose. There is no reason to confine the discretionary power of the courts by arbitrarily stipulating that a stay is the only proper remedy for undue delay. A second and related point may also be made. In appropriate cases, orders may be made to prevent injustice notwithstanding that there is no reason to suspect that the actual trial, when held, will not be fair. Thus orders may be directed to ensuring fairness in pre-trial procedures; in particular, a court may order that a trial be expedited where it sees the delay as warranting such action but not as being of such a kind as to justify staying the proceedings.

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20. The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton, at pp 102, 106; Sang, at p 437; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at pp 31, 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused: Barker v. Wingo [1972] USSC 146; (1972) 407 US 514; Bell v. D.P.P. (1985) AC 937, as explained in Watson, and Gorman v. Fitzpatrick (1987) 32 A Crim R 330. In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare: Re Cooney (1987) 31 A Crim R 256, at pp 263-264.

21. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences": Barton, at p 111, per Wilson J. Where delay is the sole ground of complaint, an accused seeking a permanent stay must be "able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute": Clarkson, at p 973. I agree with Toohey J. that no such case has been made out in the present appeal. For that reason, and because there is no right to a speedy trial or trial within a reasonable time independent of the right to be protected from unfairness resulting from undue delay, I would dismiss the appeal.            

Brennan J (would dismiss the appeal on the basis that there is no power to stay proceedings due to delay)

1. The appellant has been charged under s.173 of the Crimes Act 1900 (NSW) on 30 counts of being a director of a company who fraudulently applied the company's property to an improper use. The chronology of the case is a reproach to the administration of criminal justice. The alleged offences occurred in the period April 1976 to January 1979. On 6 February 1980 the appellant was examined compulsorily under s.249 of the Companies Act 1961 (NSW). Some time later (probably in 1981) interviews relevant to these charges (and 8 or 9 interviews relevant to other matters) were conducted and recorded. He was arrested and charged on 19 October 1981. On 16 July 1982 the appellant was committed for trial on 92 charges, but the matter was not listed in the District Court until 27 June 1986. Then a hearing date was fixed for the week commencing 9 February 1987. On 13 February 1987 an indictment was presented charging the appellant with the 30 counts under s.173 of the Crimes Act. An application was made for a permanent stay of proceedings on the indictment but Judge Thorley refused the application. Judge Thorley found that there had been an inordinate delay between the time when the applicant was committed for trial in July 1982 and the time when the matter was put into the list before a District Court judge in June 1986. However, his Honour thought that, on balance, the order sought should not be made. An appeal against that decision was heard by the Court of Appeal which, by majority (Kirby P. and Samuels J.A., McHugh J.A. dissenting), dismissed the appeal. From that decision, a further appeal has been brought by special leave to this Court. Presumably no trial has yet taken place.

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19. For these reasons, I would hold that no right to a speedy trial was recognized by the common law. Provisions inserted in the American Bill of Rights and in the Canadian Charter of Rights create an express constitutional right to a speedy trial but there is no counterpart in our Constitution. The courts of the United States and Canada have developed doctrines which give content to the right to a speedy trial which the respective Constitutions express in broad terms. It is logically and legally invalid to translate the constitutional doctrines thus developed into our own jurisprudence in order to fashion a right, created by judicial legislation, to be exonerated from liability to conviction on the failure by the executive government to present an indictment within a time limit determined according to a judicial discretion.

20. That is not to say that the courts of this country do not regard speed in the disposition of criminal cases as desirable. To the contrary, it is a truism that justice delayed is justice denied. In Lord Bacon's words (quoted by Dr Kenny, op.cit., p 607) "(j)ustice is sweetest when it is freshest." Therefore, within the limits of their resources, the courts so mould their procedures as to avoid unnecessary delays in the disposition of cases both criminal and civil. But the avoidance of delay in administering justice is not the sole concern of the courts. The courts do not have command of all of the resources which are necessary to secure prompt justice and, if they were to assume a responsibility beyond their capacity, they would offer a hope of protection which they are unfitted to fulfil. The furthest which a court can go is to regulate its procedures to avoid unnecessary delay, to do what can be done to achieve fairness in a trial and to prevent the abuse of its process.

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23. The power which was acknowledged to exist in Barton is a power which has a dual purpose: "to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice." One purpose of the power is to ensure a fair trial, the other to prevent an abuse of process. A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimize prejudice to either party. Examples of such an exercise of discretionary power were offered in Bell v. D.P.P. It was the power exercised in Barton - the power to adjourn a trial until the committal proceedings were held. A power of temporary adjournment is commonly exercised to prevent injustice, as Jordan C.J. observed in Medaris v. Lars Halvorsen & Sons Pty. Ltd. (1943) 44 SR (NSW) 71, at p 76:

"I have no doubt that the Court has inherent jurisdiction to direct a temporary stay of proceedings whenever this is necessary to prevent injustice".

Obstacles in the way of a fair trial are often encountered in administering criminal justice. Adverse publicity in the reporting of notorious crimes (Murphy v. The Queen [1989] HCA 28; (1989) 63 ALJR 422; 86 ALR 35), adverse revelations in a public inquiry (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [1982] HCA 31; (1982) 152 CLR 25), absence of competent representation (McInnis v. The Queen [1979] HCA 65; (1979) 143 CLR 575; MacPherson v. The Queen (1981) 147 CLR 512), or the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed. Unfairness occasioned by circumstances outside the court's control does not make the trial a source of unfairness. When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.

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28. Moreover, although our system of litigation adopts the adversary method in both the criminal and civil jurisdiction, interests other than those of the litigants are involved in litigation, especially criminal litigation. The community has an immediate interest in the administration of criminal justice to guarantee peace and order in society. The victims of crime, who are not ordinarily parties to prosecutions on indictment and whose interests have generally gone unacknowledged until recent times, must be able to see that justice is done if they are not to be driven to self-help to rectify their grievances. If a power to grant a permanent stay were to be exercised whenever a judge came to the conclusion that prejudice might or would be suffered by an accused because of delay in the prosecution, delay in law enforcement would defeat the enforcement of the law absolutely and prejudice resulting from delay would become a not unwelcome passport to immunity from prosecution. Refusal by a court to try a criminal case does not undo the anxiety and disability which the pendency of a criminal charge produces, but it leaves the accused with an irremovable cloud of suspicion over his head. And it is likely to engender a festering sense of injustice on the part of the community and the victim. The reasons for granting stay orders, which are as good as certificates of immunity, would be difficult of explanation for they would be largely discretionary. If permanent stay orders were to become commonplace, it would not be long before courts would forfeit public confidence. The granting of orders for permanent stays would inspire cynicism, if not suspicion, in the public mind. In Connelly, similar considerations led Lord Morris of Borth-y-Gest to observe (at p 1304)…

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33. The Australian cases have a parallel in some recent English cases which treat delay as abuse of process when the delay "by its nature and its length ... inevitably ... must lead to prejudice, unfairness and injustice" to an accused: see Reg. v. Oxford City Justices, ex p Smith (1982) 75 Cr App R 200, at p 206; Reg. v. W. London Magistrate, ex p Anderson (1984) 80 Cr App R 143; Reg. v. Derby Crown Court, ex p Brooks (1984) 80 Cr App R164. In ex p Brooks, Sir Roger Ormrod (at p 169) speaking for the Divisional Court, assigned as reasons for refusing relief that the accused "has always admitted his guilt and will, we think, inevitably plead guilty at his trial. It is manifestly unjust that he should not be dealt with for these offences." With respect, I see no power in the judges of this country to exercise so broad a discretion over the prosecution of crime. For a brief time, a somewhat different view had been taken in England. In Reg. v. Grays JJ., Ex p Graham (1982) QB 1239, May L.J., delivering the judgment of the Divisional Court, said (at p 1247):

"Certainly there must be some abuse of the process of the court, some at least improper and it may be mala fide use of its procedure, before an order of judicial review in the nature of prohibition will be made."

Acknowledging that delay of itself, if sufficiently prolonged, could in some cases be such as to render criminal proceedings brought long after the event both vexatious and an abuse, his Lordship was not prepared to extend the notion of abuse of process:

"We are well aware that there is today a substantial amount of delay and inefficiency in criminal proceedings, both before and at trial. This is to be deplored, and all concerned must do their utmost to bring criminal proceedings to trial and to verdict as swiftly and efficiently as possible. But we do not think that this court should create any form of artificial limitation period for criminal proceedings where it cannot truly be said that the due process of the criminal courts is being used improperly to harass a defendant."

This view, to which I subscribe, was overtaken by later English cases.

34. In the onward march to the unattainable end of perfect justice, the court must not forget those who, though not represented, have a legitimate interest in the court's exercise of its jurisdiction. In the broadening of the notion of abuse of process, however, the interests of the community and of the victims of crime in the enforcement of the criminal law seem to have been depreciated, if not overlooked. How has this occurred? The notion of abuse of process was pressed into service as the means of constraining prosecuting authorities to eliminate delays. But it will not do. It involves the courts in extraordinary evaluations of the investigative process and of the resources of law enforcement agencies which, in my view, the courts are unfitted to undertake (see, for example, Whitbread & Ors v. Cooke & Ors; Purcell v. Cooke & Ors (No.2) (1987) 5 ACLC 305) and which the courts refused to undertake when they were invited to review the exercise of the discretion to prosecute. In my opinion, the broad notion of abuse of process expressed in the cases in the State courts above cited is misconceived. No abuse of process appears merely from delay on the part of the prosecution, either by inadvertence or by negligence, in presenting an indictment. It may be different if the prosecution were to delay deliberately in presenting an indictment in order to prevent an accused from making an effective defence but, even in such a case, the remedy may lie not in permanently staying the proceedings but in bringing them to a conclusion with a direction which nullifies the effect of the tactic.

35. In the present case there is no suggestion of bad faith, though the lengthy delay found by Judge Thorley was reprehensibly inefficient. The proceedings which the prosecution finally got to trial were, so far as appears, intended simply to administer the criminal law. There was no abuse of process. It remains for the prosecution to consider whether, in all the circumstances, the trial should proceed, but the appeal must be dismissed.

Deane J (would dismiss the appeal on the basis of the appellant not having demonstrated any prejudice by the delay)

2. The subjection of an accused to the burden of criminal proceedings is, however, an unavoidable concomitant of the presumption of innocence and the public administration of criminal justice by the courts. It is something which the individual must accept as necessarily flowing from membership of a society in which individual and public rights and interests are protected by laws enforced by penal sanction. In a real world where institutional resources are limited, some undesirable delay in the administration of criminal justice is inevitable. That being so, the burden of criminal proceedings even where intensified by such delay cannot, without more, properly be seen as unfairly oppressive or as an abuse of the process of the particular court. To the contrary, it is a normal incident of the due administration of criminal justice and of that process. The stage can, however, be reached where delay in the institution or prosecution of criminal proceedings is so prolonged that it becomes unreasonable. If and when that stage is reached will depend upon the particular circumstances, such as when the relevant authorities first become aware of the alleged criminal conduct and of the material said to prove the accused's guilt and whether the charge is a complex or a simple one. When that stage is reached, an accused can, if he does not share responsibility for the delay, justifiably claim that the burden of pending criminal proceedings has passed beyond what can be justified in the due administration of justice.

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6. An unfair trial is not a nullity. An acquittal after such a trial is ordinarily final and decisive. So, unless it is impeached on an appeal, is a conviction. Nonetheless, an unfair trial represents a miscarriage of the curial process. If circumstances exist in which it can be seen in advance that the effect of prolonged and unjustifiable delay is that any trial must necessarily be an unfair one, the continuation of the proceedings to the stage of trial against the wishes of the accused will constitute an abuse of that curial process. In such a case, the continuation of proceedings to the stage of trial will inevitably infringe the right not to be tried unfairly and a court which possesses jurisdiction to prevent abuse of its process, possesses jurisdiction, at the suit of the accused, to stay the proceedings pursuant to that power. The grant of such a stay in those circumstances does not mean that the judge is either stepping into the arena or assuming what is properly to be seen as a function of the executive government. It involves no more than the discharge of the responsibility and duty of a court to see that the process of law is not abused in proceedings before it (cf. Connelly v. D.P.P., at p 1354; Reg. v. Jewitt (1985) 2 SCR 128, at pp 136-137). As Richardson J. observed in Moevao v. Department of Labour (1980) 1 NZLR 464, at p 481:

"It is not a matter of the Courts' usurping or intruding on the functions of another organ of government ... It is simply that the existence of other sanctions cannot justify the abdication by the Court of responsibility for control over its own processes. When it comes to actual or threatened abuse of the Court's processes the Crown's position is no different in principle from that of any other litigant."

7. The power of a court to stay proceedings in a case of unreasonable delay is not confined to the case where the effect of the delay is that any subsequent trial must necessarily be an unfair one. Circumstances can arise in which such delay produces a situation in which any continuation of the proceedings would, of itself, be so unfairly and unjustifiably oppressive that it would constitute an abuse of the court's process. Multiple prosecutions arising out of the one set of events but separated by many years or a renewed charge brought years after the dismissal of earlier proceedings for want of prosecution could, in a case where the relevant material had been available to the prosecution from the outset and depending on the particular facts, provide examples. Where such circumstances exist, the power of a court to prevent abuse of its process extends to the making of an order that proceedings be permanently stayed.

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10. For my part, I do not think that it is possible to give an unqualified affirmative or negative answer to the question whether, in the absence of relevant constitutional or statutory provision, the law of this country recognizes what is sought to be conveyed by the notion of a "right" to be tried without unreasonable delay. On the one hand, I am not persuaded that there is any general principle of law to the effect that unreasonable delay in bringing a matter to trial of itself means that there can be no trial at all or necessarily vitiates a conviction on a trial that has followed such delay. On the other hand, as I have indicated, unreasonable delay on the part of the prosecution in bringing proceedings to trial will entitle an accused to apply for appropriate orders to avoid or mitigate the effects of further delay and may, in the limited circumstances which I have indicated, either entitle an accused to a permanent stay of proceedings or, if the effect of the delay has been to render an overall trial unfair, to an order quashing any conviction. It is, in my view, only to that extent that the law of this country recognizes and protects the entitlement of an accused to be tried without unreasonable delay. That entitlement is more confined in its scope and more derivative or incidental in its legal basis than the constitutional, statutory or traditional "right" which is established or recognized in some other countries.

11. It is not practicable to seek to precisely identify in advance the various factors which may be relevant in determining whether, in the circumstances of a particular case, unreasonable delay has produced the extreme situation in which any further proceedings should be permanently stayed. The starting point will be consideration of the question whether the delay is so prolonged that it is unreasonable in the context of the particular case. An affirmative answer to that question will, at least where the accused does not share responsibility for the delay, prima facie indicate that the accused is entitled to some relief (e.g. an order fixing a date for trial). It will not, however, of itself and viewed in isolation, suffice to found an order that the proceedings be stayed. In that regard, it is relevant to note that, in the context of an accused being entitled to the benefit of any reasonable doubt, the vagueness and uncertainty of memory and evidence which is likely to result from delay is more likely to be damaging to the prosecution than to the defence case. An order that proceedings be permanently stayed will only be justified in the exceptional cases which I have indicated, namely, where it appears that the effect of the unreasonable delay is, in all the circumstances, that any subsequent trial will necessarily be an unfair one or that the continuation of the proceedings would be so unfairly oppressive that it would constitute an abuse of process.

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13. The delay on the part of the prosecution in the present case was an extraordinarily lengthy one. The reasons advanced by the prosecution to justify or explain it are unpersuasive. Nonetheless, I can see no basis for disagreeing with the conclusion of the majority of the Court of Appeal that the effect of the delay was not such as to produce a situation where any trial of the appellant would necessarily be an unfair one. Nor was its effect to make any continuation of the proceedings so unfairly oppressive of the appellant that it would constitute an abuse of process. As Kirby P. pointed out, the appellant:

"... has lost no witnesses. He claims no special prejudice. And he acknowledges that the case of the prosecution is essentially a simple one: simple to present and therefore, by inference, simple to test, to criticise and possibly, to answer."

Moreover, the appellant's past attitude to the delay does not militate in his favour. It is true that a lack of enthusiasm on the part of an accused for an early trial is common and understandable. That does not, however, alter the fact that delay in the prosecution of threatened or pending criminal proceedings will ordinarily be much more likely to give rise to unfairness and even oppression in a case where the delay has occurred over the active protests of the accused than in a case where the accused has acquiesced in, or even welcomed, it. In the present case, the appellant by his silence and lack of protest clearly acquiesced in the long delay between the time when it was made clear to him that he would be charged and the time when steps were taken to have the matter brought on for trial.

14. I would dismiss the appeal.

Toohey J (would dismiss the appeal on the basis that the remedy to a delayed trial is expedition)

4. 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.

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24. 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] USSC 133; (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."

25. 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.

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30. 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.

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32. 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.

Gaudron J (would dismiss the appeal on the basis of the appellant not having demonstrated any prejudice by the delay)

4. The unchallenged assumption underlying the proceedings brought by Mr Jago in the Court of Appeal enables the correctness or otherwise of the decision of that Court to be determined by reference to three questions:

1. Does the District Court have power to permanently stay proceedings on indictment in vindication of what has been referred to as a "right to speedy trial"?

2. Does the District Court have power to permanently stay proceedings on indictment on the ground of what has been referred to as “presumptive prejudice"?

3. If either power exists, is any error to be discerned in the refusal to exercise that power in the present case?

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6. The power of a court to control its own process and proceedings manifests itself in a variety of ways. It may involve no more than the grant of an adjournment. On the other hand, it is accepted that it may result in the grant of a permanent stay of civil proceedings that are frivolous, vexatious or oppressive. See Metropolitan Bank v. Pooley (1885) 10 App Cas 210; Lawrance v. Norreys (1890) 15 App Cas 210.

7. The power of a court to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands. See, for example, Jackson v. Sterling Industries Ltd [1987] HCA 23; (1987) 162 CLR 612, at p 639; Hamilton v. Oades [1989] HCA 21; (1989) 63 ALJR 352, at p 358; [1989] HCA 21; 85 ALR 1, at p 11.

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13. The power to grant a permanent stay of proceedings is a discretionary power. See, for example, Castro v. Murray (1875) LR 10 Ex 213, at p 218; Connelly, per Lord Reid at p 1296, and per Lord Pearce at pp 1364-1365. The expression "discretionary power" generally signifies a power exercisable by reference to considerations no one of which and no combination of which is necessarily determinative of the result. In other words, it is a power which "involves a considerable latitude of individual choice of a conclusion": Russo v. Russo [1953] VicLawRp 12; (1953) VLR 57, per Sholl J. at p 62. See also Pattenden, The Judge, Discretion, and the Criminal Trial, (1982), p 9. Notwithstanding this latitude, a discretionary power is necessarily confined by general principle. It is also confined by the matters which may be taken into account and by the matters, if any, which must be taken into account in its exercise.

14. The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J. in Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393, at p 399; 72 ALR 1, at p 12, that the "prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is 'amenable to the jurisdiction' of the courts and other public tribunals". Thus, the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in Attorney-General (NSW) v. Watson (1987) 20 Leg Rep SL 1, "sparingly, and with the utmost caution". See, generally, Cocker v. Tempest [1841] EngR 242; (1841) 7 M & W 502 (151 ER 864); Lawrance v. Norreys, at p 219; Humphrys, at p 26; and Reg. v. Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164, at p 168.

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18. Another feature attending criminal proceedings and relevant to the grant of a permanent stay thereof is that a trial judge, by reason of the duty to ensure the fairness of a trial, has a number of discretionary powers which may be exercised in the course of a trial, including the power to reject evidence which is technically admissible but which would operate unfairly against the accused. See Driscoll v. The Queen [1977] HCA 43; (1977) 137 CLR 517, at p 541. See also Harris v. Director of Public Prosecutions (1952) AC 694, per Viscount Simon at p 707; R. v. Christie (1914) AC 545, per Lord Reading at p 564. The exercise of the power to reject evidence, either alone or in combination with a trial judge's other powers to control criminal proceedings, will often suffice to remedy any feature of the proceedings which might otherwise render them unjust or unfair. The existence and availability of these powers, when considered in the light of the necessarily limited scope of the power to grant a permanent stay, serve to indicate that a court should have regard to the existence of all its various powers, and should only grant a permanent stay if satisfied that no other means is available to remedy that feature which, if unremedied, would render the proceedings so seriously defective, whether by reason of unfairness, injustice or otherwise, as to demand the grant of a permanent stay.

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20. The notion of "presumptive prejudice", as presented by reference to the facts of this case, assumes that, by reason of delay, the trial of the charges will involve some general, but unspecified, prejudice or damage, including, it would seem, prejudice in the conduct of the defence by reason of staleness of evidence. So stated, no feature of the proceedings presents itself as one as to which a court could be satisfied that the proceedings were thereby rendered so unfair that they were insusceptible of remedy by less drastic means. Accordingly, there is no power to grant a permanent stay of proceedings on the ground of "presumptive prejudice".

Grove J (would allow the appeal and quash the order for a permanent stay)

1. This is an appeal pursuant to s5F(2) of the Criminal Appeal Act challenging an order made on 18 November 1999 by Shillington DCJ permanently staying proceedings on an indictment against the respondent charging him with six counts of indecently assaulting a male person and two counts of buggery. Four of the indecent assault counts and one buggery count were charged to have occurred between 19 December 1979 and 30 June 1980 and the other offences between 1 November 1980 and 18 December 1980.

2. The complainant named in all counts was the same person. He had been born on 19 December 1962 and therefore attained the age of eighteen years on the day after the latest date of any offence specified in the indictment.

3. In June 1984 significant changes in relevant law were effected by legislation and thereafter acts of sexual intimacy including buggery, between consenting adults (i.e. those over eighteen years of age) ceased to be punishable offences.

4. At the hearing below the learned trial judge was informed that the respondent would not deny that he and the complainant had engaged in sexual acts but would assert that the first of these occurred in 1981. His Honour was further told that, if the matter proceeded to trial, the issue, apart from the anticipated to be acknowledged acts, would be whether the complainant was under or over the age of eighteen when those acts occurred. The prosecutor accepted that if the complainant was not under that age, there should be verdicts of not guilty. The motion for stay was dealt with on the basis of this information as common ground between the Crown and the respondent. I will need to return to aspects of these matters but it is convenient first to deal with the appeal in terms of the contest as accepted by the parties.

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9. The case of the respondent for a stay of proceedings was substantially based upon the impossibility of his now obtaining objective material which would verify his contention that the relevant events occurred in 1981. Counsel referred to the handicaps derived from the extreme delay between alleged offence and the charging and the unavailability of potential sources such as bank records and the like. It suffices however to refer to two matters adverted to by the learned trial judge.

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17. I return to considerations concerning the agreed issue. The Court was informed, as was Shillington DCJ, that there was a policy of prosecution authorities in effect which was to refrain from charging offences of the type now under consideration occurring before June 1984 where, by reason of the ages of the participants, the activity had ceased to constitute an offence after that date. The concession that, if the complainant was not under the age of eighteen when the activity took place, he should be found not guilty apparently derived from it.

18. The Court raised the question whether the District Court was being asked to try a false issue in respect of the offences charged and the time spans particularized in the indictment. The law making punishable acts such as buggery, irrespective of the age of participants, was current and applicable in both 1980 and 1981. A trial judge could not direct a jury that, if a complainant had turned eighteen, an accused was not guilty of such offence. The implementation of policy cannot alter the law. Undoubtedly prosecutorial discretion may be exercised to refrain from charging in accordance with some adopted policy but once a matter is brought before a court it must be determined according to applicable law which, I repeat, could not involve acquittal of an offence of relevant type committed at any time before June 1984 simply because of the attainment of age by the participants.

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21 Can a prosecutor make time of the essence of offence simply by pleading and submitting to being bound by the time which has been pleaded? In my opinion, a prosecutor cannot. The present matter can be used as an example. Suppose the matter went to trial, I have already observed that the judge could not charge the jury contrary to law that the accused would be not guilty of offence if punishable activity occurred on or after 19 December 1980 (and, of course, before June 1984). Indeed, even if the jury expressly found that an offence occurred after that date (assuming proof of other ingredients) conviction would be inevitable. The circumstances of Dossi were almost parallel. Dossi was charged with indecent assault on March 19 and the jury announced "with regard to the date March 19, not guilty, but if the indictment covers other dates guilty". The trial judge amended the date to read "on some day in March" but this was unnecessary. If a specified date were regarded as a defect in the indictment, it would in any event cured by verdict, its substance being that of an inessential averment.

22 It may be contemplated that in a particular case, the conduct of the trial and the content of evidence will lead a presiding judge to direct a jury that a Crown case is only made out if an offence occurred on some specific occasion or within an evidenced span of time. There has been no trial. The issue which has arisen is whether an immaterial averment can be made material by pleading.

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24. My conclusion is that it was not open to the prosecutor, with or without the consent of the respondent, to limit the issues presented for trial upon indictment and the indictment is required to be tried by the Court according to the law in force and not in accordance with a selective restriction placed upon it by a party.

25. I emphasize that it is obvious that the conduct of the proceedings below and in this Court has been bona fide and that the matter now in focus was not adverted to until raised by the Court. I would add that nothing which I have stated affects the prosecutorial discretion to refrain from charging in any given case and the ambit of my opinion is confined to cases where the trial process has been invoked. As may be inferred from the foregoing, argument by the Crown on the merits was unsuccessful in the District Court and I would not uphold the appeal against that decision other than on the basis that I have elaborated. The presentation of the Crown appeal was not initially directed to that basis and a decision whether to continue proceedings remains within the scope of prosecution discretion.

26. The consequence of the finding of error is that the appeal must be allowed.

27. I propose that the appeal be allowed and the order permanently staying the presentation of indictment be quashed.

Adams J (would dismiss the appeal)

35. As I understand it, the majority view is that, if the jury thought that the complainant was merely mistaken about dates but considered, nevertheless, that the offences described in the indictment occurred, then, even if the accused established irrefutably that he had not met the complainant on the dates alleged, they might nevertheless convict. That is to say, the jury might convict the accused if they were satisfied that the offences occurred at any time before repeal of the offence. If this is so, it follows that the indictment might be validly framed alleging the offences occurred at any time between 18 December 1980 and 7 June 1984 and the Crown could not be required to particularise any date in that period or, if it did, would not be bound by it. By parity of reasoning, the same position would arise as to place. Accordingly, the Crown would be entitled to prove any acts of indecency or anal intercourse, limited only by the number of charges in the indictment, that occurred within those dates in New South Wales and the accused would have to establish that he never had committed any such acts. This cannot be right. The trial could not possibly be fair. It follows that, if the respondent established his alibi for the period before 18 December 1980 or the jury was in doubt about it, he must be acquitted on the present indictment.

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45. There have been many cases in which it has been held in this Court that the conduct by the Crown of its case has made the time specified by the complainant in evidence an element of the offence in the particular circumstances: see, for example, in addition to Regina v VHP (unreported NSWCCA 7 July 1997), Regina v Cox [1999] NSWCCA 62, Regina v Hughes [2000] NSWCCA 3. In those cases, there was some uncertainty as to when the occasions giving rise to the offences occurred but the trials proceeded upon the basis that one or more particular dates identified the occasions charged. They were not cases where the legal elements of the crime prescribed any particular time frame. Here, there is no uncertainty about time. The Crown case is, following in this respect the complainant's expected evidence, that the offences occurred after his seventeenth and before his eighteenth birthday. The conduct by the Crown which, it has been held, renders the dates alleged in the charge an essential item of proof, is not confined, in my view, to those cases where the dates crystallise during the course of evidence: the prosecution case may be so conducted from the beginning.

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50. The Crown here has declined to amend the indictment to identify other dates and an indictment without dates must be particularised for the reasons I have already mentioned. A refusal to do so must result in quashing the indictment in accordance with Johnson v Miller (supra) and R v S (supra). Thus, whether the proceedings be stayed or the indictment be quashed, a trial cannot be conducted of the indictment in its present form.

51. There are other matters of significance which also lead to the conclusion that this Court should not allow the present appeal.

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82. In my view, there is now no distinction, for the purposes of the criminal law, between the concept of indecency as it may be found in heterosexual and homosexual behaviour. That standard must, as it seems to me, apply in the instant trial, if there were to be one, even though the conduct in question here occurred in 1981. It would be strange, to say the least, if the Courts are obliged to apply outdated and offensive notions which have been repudiated because of their conflict with fundamental human rights and the appropriate scope of the criminal law (unless, of course, they are bound to do so by specific and unambiguous legislative mandate) merely because the allegations concerned acts which occurred twenty years ago when (so the argument goes) those notions may have been current. Just as inappropriate would be a direction that invited a jury to consider, not their views of contemporary standards, but their understanding of community standards as they stood in 1981.

83. These considerations, which are both theoretical and practical, persuade me that it is inappropriate to inquire into the character of community standards as they stood in 1980 or 1981. After all, s 81 was repealed in June 1984, only shortly after the events in issue here and the new offence applied only to minors, where the criminal behaviour was required to be grossly, as distinct from simply, indecent. At all events, although community attitudes have no doubt evolved over the ensuing twenty years, I would not accept that they significantly differ from those of the present day. The result is that, rightly interpreted, neither s 81 nor s 89A of the Act applied in 1981 to consensual homosexual relations between adults in private.

84. It follows that the dates in the indictment, so far as they are referred to in counts one, two, four, five, six and seven, are essential elements of the offence since, if the acts alleged occurred when the complainant was an adult, they cannot amount in law to the crime of indecent assault as provided in s 81 of the Act. Accordingly, so far as the appeal concerns the alleged offences under s 81, it must be dismissed. Independently of this ground, if the Commonwealth Act applies in the present circumstances (as I am inclined to think, although do not determine, that it does) a trial of alleged offences under either s 79 or s 81 of the Act cannot proceed in respect of conduct that occurred when the complainant was an adult.

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100. The jurisdiction to permanently stay a criminal proceeding that is unfair comprehends proceedings that are brought for an improper purpose or which are oppressive, even where a fair trial is possible: Williams v Spautz [1992] HCA 34; [1991-1992] 174 CLR 509 at 519-521, 552-553; Walton v Gardiner [1992-1993] 177 CLR 378 at 392-3 (although the latter case concerned disciplinary proceedings). It is clear the jurisdiction is exercised only in exceptional circumstances and that courts should exercise their jurisdiction rather than decline to do so, especially in respect of the trial of criminal charges but the courts should not be deterred from permanently staying such proceedings in appropriate circumstances: Willams v Spautz 174 CLR at 519-2.

101. It is, therefore, necessary to examine whether proceedings now being brought to seek conviction for offences under s 79 and s 81 of the Act, as they stood in 1981 in respect of sexual acts in private between consenting adults, are capable of serving the purposes of the criminal law. If not, then they are instituted for an improper purpose, even though there is no ulterior motive in those responsible for their institution and the trial itself may be fair. The same principle applies if the proceedings will result in a weakening of public confidence in the administration of justice (cf Ridgeway, per Gaudron J[1995] HCA 66; , (1995) 78 A Crim R 307 at 353). In a case where personal motives underlying the prosecution are immaterial, an abuse of process will not have occurred unless the trial (which, as such, may be fair) and the verdict themselves serve an improper purpose having regard to the functions of the criminal law and the administration of criminal justice.

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117. In all the circumstances of this case, I consider that the continuation of any prosecution against this respondent for acts which would not be crimes had they been committed after the 1984 reforms would amount to an abuse of the process of the Court. (I should mention that I consider that, for a variety of reasons, s 61N of the Act would not apply to the acts alleged here, had they occurred after 7 June 1984.) Such proceedings would serve the ends of injustice rather than justice and bring the court into disrepute. Accordingly, if the indictment were so interpreted as to permit the jury to convict the respondent in respect of events that occurred after 17 December 1980, the trial should be permanently stayed. For this reason also, the appeal should be dismissed.

118. Even if the dates in the indictment might not be vital, neither party sought to put this argument before the Court as a reason for disposing of the appeal. Whilst I would not go so far as to say that the Court should never act upon its own view of the law where the parties ask the Court to deal with a matter on a quite different basis, I do not think that in the circumstances of this case we should change the nature of the appeal so fundamentally. Even if it be the law that a prosecution can still proceed for behaviour which has not been criminal for sixteen years, I do not see why, in effect, this Court should exercise its discretion on its own motion to vary the argued grounds of appeal to bring about this result.

119. For these reasons, even if I am mistaken about the significance of the times specified in the indictment for the offences with which the respondent is charged, and in my view that a trial on the residual basis proposed by Grove and Smart JJ would be an abuse of process, I do not consider that the appeal should be upheld.

Smart AJ (would allow the appeal and quash the order for a permanent stay)

128. In essence, the Court was asked to grant a permanent stay of proceedings upon the basis of some instructions given by the accused to his solicitor, the antiquity of the alleged offence and the absence of records for the period 1980-1981. The instructions given are entirely untested. Permanent stays should not usually be granted on the basis of instructions, deposed to by an accused's solicitor or some person other than the accused. Generally, it would be wrong for a Court to act on the accused's instructions when these are unverified by the accused. There may be cases however, where admissible evidence can be given by persons other than the accused which would justify the granting of a permanent stay.

129. In the present case no point was taken by the Crown that there was no evidence from the accused as to his stated defence, namely that no sexual activity occurred between the complainant and the appellant in 1980. Generally, in a case such as this such evidence should be led. The absence of such evidence does tend to weaken the accused's case for a permanent stay. If an accused wants the benefit of a permanent stay there is nothing unfair as a general principle, requiring him to verify his position.

130. However, this raised a problem. If the accused said that the incidents alleged happened in 1981 the appellant was guilty of the offences charged. It is the incidents which are the subject of the charges. In the present case, the dates are not critical. If the accused said that no such incidents occurred but that there was other sexual activity in later years then he would not be guilty. He would be entitled to refuse to give details of such other sexual activity on the grounds of self-incrimination.

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134. I make some additional comments. It is not reasonably open to a Court to regard the loss or absence of any useful records as usually being sufficient in itself to justify the grant of a permanent stay. This is not a case such as Davis (1995) 81 ALR 156. He was a medical practitioner who had seen thousands of patients and his clinical records had been destroyed in circumstances where no blame had been attributed to anyone. The alleged offence had occurred many years previously. Without his clinical records the doctor would not be able to say what he did and why and to give instructions to his counsel.

135. It is well established that the loss or absence of documents or records does not of itself mean that a person cannot obtain a fair trial or that the proceedings need to be stayed. The complainant's eighteenth birthday is a notable event. Even if it were correct to limit the counts in the indictment to events occurring before that day, incidents can be related to the period before or after that day as a reference point. Of course, as the dates of the incidents are not critical the absence or loss of the records is not of significance.

136. I would allow the appeal and quash the order granting the permanent stay.

Hodgson JA

1. The circumstances surrounding this application are set out in the judgment of Adams J. I agree with Adams J that there were errors in the way that the primary judge dealt with the medical evidence, although I would characterise the errors slightly differently.

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5. As shown by Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, a permanent stay is a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process.

6. In my opinion, an applicant for such an extraordinary remedy bears a heavy onus, and, if not unfit for trial, should normally be prepared to state on oath what he or she says would be the particular difficulties he or she would face in dealing with a trial of the charges brought.

7. In expressing this opinion in relation to this application, I have regard not only to the public interest in having a determination of the guilt or innocence of a person charged with serious offences, but also the interests of persons claiming to have been severely damaged by the alleged actions of the applicant. These actions, if they occurred, would have been done in circumstances where early detection was unlikely, and where there was a real possibility that complainants may be willing and able to bring complaints only many years later. In this case, complainants have now come forward, and made statements which, if true, both indicate most serious and damaging criminal activity and also make it understandable why there has been so much delay, at least until 1994. For myself, I would feel a sense of injustice to complainants such as these if a person charged with such offences could apply for and obtain a permanent stay, on the grounds such as those relied on in this case, without going so far as to state on oath what he says are his difficulties in dealing with the allegations.

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11. With the assistance of that affidavit, I am of the view that the grounds for a permanent stay expressed by Adams J are made out.

Greg James J

13. I have had the advantage of reading the judgments of Adams, J and Hodgson, JA in draft.

14. Adams, J has set out the circumstances of the appeal. I agree with the orders he proposes and his reasons.

15. Further, I agree with Hodgson, JA that the medical evidence was far from ruling out that a trial would be unfair. On the grounds to which each of their Honours refers, I agree that the trial judge erred and that it falls to this court to determine whether stays should be granted.

16. For the reasons he has given, I agree with Hodgson, JA. that on an application of this kind, sworn evidence from the applicant, at least to the effect he has referred to, should be given.

17. That evidence having been given here, I join with the other members of the court in agreeing that the stays sought should be ordered.

Adams J

21. In June 1996 the applicant was charged with sexual assaults in respect of a number of complainants including, in particular, William Hurst and Wayne Merry. Committal proceedings commenced in November 1996. After several interruptions, he was committed for trial on 13 April 1997. One cause of delay was the failure of the prosecution to provide details of EMDR therapy undertaken by a number of the complainants. Another delay arose from the need for the applicant to undergo heart surgery. Two indictments were ultimately preferred against the applicant who moved in the District Court for a permanent stay in respect of all charges. The application was heard by Maguire DCJ who, on 28 February 2001, stayed a number of counts but declined to stay those relating to Messrs Merry and Hurst. The applicant seeks leave to appeal in this Court from that part of his Honour's judgment declining to grant a stay.

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24. It was submitted that the great delay between the dates upon which it is alleged the offences (whatever they were) allegedly occurred and the applicant's trial has resulted in such prejudice that a fair trial cannot be conducted. This prejudice falls into three main classes. The first concerns the unavailability of numerous potential witnesses who are dead, demented or unable to be identified. Related to this issue, of course, is the undoubted fact that such of these witnesses who might have been able to give relevant evidence at one time might very well now not be able to do so for failure of recollection caused simply by the lapse of time and ordinary human fragility. A lengthy list of Marist Brothers who were on the staff of the Home at the relevant time together with the names of various other persons who worked there in various capacities, was supplied to Maguire DCJ. His Honour accepted that most of these potential witnesses were dead, mentally incapacitated or unable to be located. Of course, any properly conducted police investigation should have thrown up the names of possibly material witnesses and attempts should have been made to locate them in light of the possibility that relevant evidence material to the issues in the case might have been discovered. The mere fact, if it occurred, that this evidence might assist the defence of course, should have been irrelevant. The statements of both complainants in this case are noteworthy for the omission of any mention of staff members or friends with whom, it seems reasonable to suppose, they had communications of greater or lesser intimacy. So far as the Crown case is concerned, it is for all practical purposes entirely focused upon the evidence of the complainants, lacking any supporting evidence, let alone corroboration.

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38. The second significant matter of prejudice, which I have already referred to in passing, concerns the effect of delay on the applicant's ability to remember with reasonable reliability what I might call the contextual facts of the alleged occurrences. These comprise, not only the possible presence of significant witnesses to some of the alleged offences or the alleged surrounding circumstances but also the actual timetable of activities and responsibilities undertaken by the applicant and his relationship, if any, with the complainants. To make a rather obvious point, if the applicant had committed the alleged offences, it seems likely that he could remember doing so, at least in general terms (though it is important to note that specific offences are alleged). If, on the other hand, he did not commit the alleged offences, then his knowledge of and recollections about the complainants, his interactions with them, and the surrounding circumstances, might well be extremely vague. The mere fact that the applicant remembered what University he went to, when he started teaching, what he taught at Westmead and other such matters would not justify the inference that his recollection of contextual facts was likely (as distinct from possibly) to be good. Indeed, it seems to me to be an affront to common sense and experience to suggest it. Simple forgetting, mistakes, confusion, confabulation are obviously likely in all of us and all the more dangerous in a trial context because the person almost certainly will not know when any one or more of the last three have occurred. The mere fact that this might be no more a problem for the applicant than his contemporaries does not make it any the less seriously prejudicial.

39. The third factor is not discussed in the authorities to which I have referred. This arises out of the psychological, psychiatric and medical examinations of the applicant. In my view, this material is of considerable significance in determining whether the court below made a relevant error in declining to grant a stay and, if so, whether this Court should do so.

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56. Accordingly, I consider that his Honour erred in his conclusion as to the significance of the psychological, psychiatric and health factors in the case. These matters were of central importance to the conclusion that his Honour ultimately drew to refuse a stay of further proceedings. I am therefore of the view that it is necessary for this Court to consider for itself, in light of the principles which I have set out above, whether, although it is exceptional, a permanent stay should be granted.

57 It is clear that the personal situation (to use a general description) of the applicant is, to a very significant degree, the result of his age and thus comes to be considered as a consequence of the very extensive, indeed unprecedented, delay between the alleged events and his proposed trial. If the trial were to proceed, the jury would need to take into account not only those matters to which I have already adverted in my discussion of the authorities on the issue of delay but also to the significance of the psychological condition of the applicant. That condition would, of course, remain relevant even if he did not give evidence, since an assessment of the significance of delay and the difficulties thereby caused to an accused person, must necessarily take into account any adverse consequences to his ability to respond to the allegations. In a practical sense, I cannot see how this evidence could be adduced in a way that did not deflect the jury from the central issues in the case and add inappropriate complexity to the assessment of evidence which would itself not be an easy task. In the end, I do not see how directions could be cast in terms adequate to deal with the difficulties in this case resulting from delay, the absence of relevant evidence, the possibility of the loss of potential witnesses and the health and psychological condition of the applicant.

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60. Applying the principles to which I have referred above, I consider that the applicant cannot have a fair trial in the present circumstances. Accordingly, I propose that leave to appeal be granted, the appeal upheld and further proceedings on the indictments be permanently stayed.

The Court (French CJ, Gummow, Hayne, Herdon, Crennan, Kiefel and Bell JJ)

1. At the conclusion of oral argument on behalf of the appellant the Court ordered that the appeal be dismissed and that the respondent's summons seeking an abridgement of time in respect of filing and serving a notice of contention also be dismissed. What follows are our reasons for joining in those orders.

2. The single ground of appeal to this Court is put in the alternative. First, the appellant complains that the Court of Appeal of the Supreme Court of Victoria erred in rejecting the appellant's challenge to the decision on 3 July 2007 of the trial judge (Cummins J) refusing him a permanent stay of the proceedings upon his charge of the murder of Mersina Halvagis at Fawkner, Victoria, on 1 November 1997. The ground on which the stay had been sought, prior to the empanelment of the jury, was that pre-trial publicity gave rise to irremediable prejudice such as would preclude his fair trial at any time.

3. The trial proceeded before Cummins J and a jury. The case against the appellant was a circumstantial one in which the prosecution relied on three identification witnesses and an alleged confession by the appellant to one Andrew Fraser who was in gaol with him at the time. On 9 August 2007 the appellant was convicted and thereafter sentenced to life imprisonment with no minimum term. His appeal against conviction succeeded on grounds relating to the conduct of the trial which are not presently material, and a new trial was ordered. However, the appellant's challenge to the refusal by the trial judge of the stay application failed in the Court of Appeal.

4. The second way in which the ground of appeal by the appellant to this Court is put is that the Court of Appeal should not have directed a retrial and should have stayed his trial permanently, or until further order.

5. The appellant seeks orders vacating the order of the Court of Appeal for a retrial and, in its place, imposing a permanent stay or a stay until further order.

6. Before his trial for the murder of Ms Halvagis, the appellant had twice been convicted of murder. In August 2000 he had been convicted of the murder of Nicole Patterson in April 1999 and in August 2004 he had been convicted of the murder in October 1997 of Margaret Maher. Upon each conviction the appellant had been sentenced to life imprisonment with no minimum term. The killings of all three vulnerable women had been by knife attack and characterised by extreme violence and brutality. The appellant's applications for leave to appeal against each of the two earlier convictions for murder were refused.

7. The two convictions for murder, the refusal of each of the leave applications, and the third murder charge had received wide media publicity, adverse to the appellant, and on the stay application Cummins J received a body of evidence of that publicity. This included publicity over some seven years, on seven internet sites, in approximately 120 newspaper articles and four books, all of which related either wholly or extensively to the appellant. The appellant had also been referred to in a number of television programs, and his image had been depicted in some of those programs. The appellant was identified in the media from an early stage as a suspect in regard to the murder of Ms Halvagis.

8. In response to questions from the trial judge as to the currency of the pre-trial publicity and as to how easy it was to access, the appellant's counsel referred to three periods of intense media publicity – late 2000 (relating to the murder of Ms Patterson), late 2004 (relating to the murder trial where the victim was Ms Maher), and early 2005 (where the appellant was named as a suspect in the murder of Ms Halvagis); counsel referred also to material currently available on the internet and to the use of the Google search engine to access articles electronically stored on the World Wide Web. A summary of the pre-trial publicity can be found in the reasons of Ashley JA. The essence of the appellant's submission before Cummins J was that "the ubiquity and pervasiveness of the accused's reputation as a serial killer, is such that no fair trial can now be had." It was contended that, if a permanent stay were not granted, any subsequent conviction would necessarily constitute a miscarriage of justice.

9. Cummins J considered that, if acted upon by a jury, the pre-trial publicity would have precluded a fair trial upon the third murder charge. Nevertheless, his Honour concluded that he had "very responsible confidence that the jury, appropriately directed, will firewall its deliberations and verdict from extraneous considerations and from prejudice in this case."

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13. In this Court, the appellant contends that pervasive pre-trial publicity attributed guilt to the appellant in respect of the crime with which he is charged and that evidence in the trial revived that pre-trial publicity with the effect that the pre-trial publicity, particularly as to the appellant's guilt in respect of other crimes and the crime charged, could not be dismissed from the jury's consideration when deciding the guilt or innocence of the appellant. The appellant submits that an accused's right not to be tried unfairly includes a right to be tried without a significant likelihood that the jury will be affected by substantial prejudice and prejudgment as a consequence of pre-trial publicity.

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21. It also needs to be noted that prior to the empanelment of the jury, at the outset of the trial, and in his charge to the jury, Cummins J directed jurors repeatedly about the need to act fairly, calmly, without prejudice and solely on the evidence led in court and to exclude from their considerations anything that they may have read or seen outside the court. Such directions were designed to ensure that the jurors would not be affected by the pre-trial publicity in bringing in their verdict. The terms in which the repeated directions were given are exemplified by what was said by Cummins J at the outset of the trial…

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22. These proper directions demonstrate the capacity of the trial judge to relieve against the unfair consequences of the pre-trial publicity without staying the criminal proceedings.

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29. Whilst the criminal justice system assumes the efficacy of juries, that "does not involve the assumption that their decision-making is unaffected by matters of possible prejudice." In Glennon, Mason CJ and Toohey J recognised that "[t]he possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial." What, however, is vital to the criminal justice system is the capacity of jurors, when properly directed by trial judges, to decide cases in accordance with the law, that is, by reference only to admissible evidence led in court and relevant submissions, uninfluenced by extraneous considerations. That capacity is critical to ensuring that criminal proceedings are fair to an accused.

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32. However, the reference by their Honours to impermissible prejudice and prejudgment gives insufficient effect to the policy of the common law respecting the efficacy of the jury system. No doubt that policy must give way, for example, in specific instances of apprehended jury tampering and other criminal misconduct. But that is far from the present case. This is not a case of an apprehended defect at the retrial of such a nature that (to adopt what was said by Mason CJ and Toohey J in Glennon) nothing that the trial judge could do in the conduct of the retrial could relieve against its unfair consequences.

…

35. Characterising a case as extreme or singular is to recognise the rarity of a situation in which the unfair consequences of an apprehended defect in a trial cannot be relieved against by the trial judge during the course of a trial. There is no definitive category of extreme cases in which a permanent stay of criminal proceedings will be ordered. In seeking to apply the relevant principle in Glennon, the question to be asked in any given case is not so much whether the case can be characterised as extreme, or singular, but rather, whether an apprehended defect in a trial is "of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences."

36. There is nothing remarkable or singular about extensive pre-trial publicity, especially in notorious cases, such as those involving heinous acts. That a trial is conducted against such a background does not of itself render a case extreme, in the sense that the unfair consequences of any prejudice thereby created can never be relieved against by the judge during the course of the trial.

French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ (would allow the appeal)

1. On 3 November 2008, the Commonwealth Director of Public Prosecutions presented an indictment in the Supreme Court of Queensland charging the appellant with seven counts of offences contrary to s 50BA of the Crimes Act 1914 (Cth). At the times relevant to this matter, s 50BA, read with s 50AD, provided that an Australian citizen who, whilst outside Australia, engages in sexual intercourse with a person who is under the age of 16 years commits an offence punishable by imprisonment for 17 years. Four of the counts charged in the indictment alleged conduct in the Republic of Vanuatu; the other three counts alleged conduct in New Caledonia. All counts related to the one complainant and were alleged to have occurred in 1997.

2. The central question in this appeal is whether further prosecution of the charges laid in the indictment should be stayed as an abuse of process. That question should be answered "yes". The appellant was brought to Australia from Solomon Islands without his consent. Officials of the Solomon Islands Government deported the appellant from Solomon Islands by putting him on an aircraft bound for Brisbane without power to do so. Having regard to the role that Australian officials played in connection with the appellant being brought to this country, the further prosecution of the charges would be an abuse of process. The appellant's alternative argument, that the proceedings should be stayed because payments made by Australian authorities to the complainant and her family brought the administration of justice into disrepute, should be rejected.

…

13. Because the point about payments to witnesses is not dispositive of the appeal it may be dealt with shortly. Between February 2008 and November 2009 the Australian Federal Police ("the AFP") made substantial payments to the complainant and to members of her family. Those payments were made following repeated statements by the complainant and her father in December 2007 and January 2008 to the effect that the complainant would not participate any further in the prosecution of the appellant unless she and her family were brought to Australia and given "financial protection". Between February 2008 and November 2009 the complainant was paid more than $67,500 and her family was paid more than $81,600. The payments were said to be made to provide for the "minimal daily needs" of the complainant, her brother, father and mother and, for part of the time, to provide accommodation in Vanuatu. The family were said to be unable to support themselves because the publicity given to the charges against the appellant adversely affected their ability to earn income.

14. Before any of the requests for payments were made, the complainant and those members of her family who might be called to give evidence as prosecution witnesses had given statements to police. The Commonwealth Director of Public Prosecutions had advised police that there were reasonable prospects of conviction and Australian authorities had taken several steps towards securing the return of the appellant to Australia. In particular, in October 2006 the Australian Government made a request to the government of the Solomon Islands for the appellant's provisional arrest pending a formal request for extradition.

15. In these circumstances, the Court of Appeal was right to conclude that the payments "were not designed to, and did not, procure evidence from the prosecution witnesses". Further, contrary to the appellant's submissions in this Court, the payments were not shown to be unlawful. It was not demonstrated that any of the payments were made in breach of any provision of the Financial Management and Accountability Act 1997 (Cth) or the Financial Management and Accountability Regulations (Cth). More particularly, it was not shown that the payments (whether considered separately or together) could not have been seen as an "efficient, effective and ethical" use of Commonwealth funds. Nor was it demonstrated that the payments could not be seen as "not inconsistent with the policies of the Commonwealth". Describing the payments (as the appellant did) as payments made in response to "demands" or "threats" by the complainant does not lead to any different conclusion. It was not open to the primary judge to conclude that the payments were "an affront to the public conscience" justifying a stay of the appellant's prosecution. And to the extent that the appellant argued he could not have a fair trial due to the payments, that argument should be rejected. As Mason CJ and Toohey J said in R v Glennon, in what this Court in Dupas called "an authoritative statement of principle":

"a permanent stay will only be ordered in an extreme case and there must be a fundamental defect 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'."

If the payments were said to bear upon the evidence witnesses gave at trial, that issue could be explored fully in evidence and could be the subject of suitable instructions to the jury that would prevent unfairness to the appellant.

…

53. In considering whether prosecution of the charges laid in the indictment preferred against the appellant would be an abuse of process of the Supreme Court of Queensland, the focus of the inquiry must fall upon what Australian officials had done or not done in connection with the appellant's deportation from Solomon Islands. To conclude that the deportation was not effected lawfully was a necessary but not a sufficient step towards a decision about abuse of process. In deciding whether there is an abuse of process, three basic propositions must be borne at the forefront of consideration.

54. First, as was pointed out by the plurality in Lipohar v The Queen, the trial of an indictable offence must generally be conducted in the presence of the accused, "there being no trial in absentia at common law in the ordinary course". If the appellant was to be tried in the Supreme Court of Queensland for the offences charged in the indictment he had to be brought before that Court.

…

56. The second basic proposition to notice is that, if Australia seeks the extradition of a person from another country for that person to stand trial in Australia for some offence against Australian law, principles of double criminality[ and speciality would ordinarily be applied. Application of those principles would determine whether the person whose extradition was sought would be surrendered and, if surrendered, what charges might be preferred. By contrast, if an alleged offender arrives in Australia because he or she was deported from another country, the principles that apply in determining whether the person could be extradited from that other country, and in limiting what charges he or she might face, may not apply. In the present case, where the offences with which the appellant was charged were offences that it was alleged he had committed outside Australia, the question of double criminality may have been controversial. It is neither necessary nor appropriate to consider how such a question might have been resolved.

57. The third basic proposition is that, as pointed out in the joint reasons of four members of this Court in Williams v Spautz, two fundamental policy considerations affect abuse of process in criminal proceedings. First, "the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike". Second, "unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice". Public confidence in this context refers to the trust reposed constitutionally in the courts to protect the integrity and fairness of their processes. The concept of abuse of process extends to a use of the courts' processes in a way that is inconsistent with those fundamental requirements.

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65. It is no answer to the three matters that have been identified in relation to the present case to say that the High Commission could not deny an issue of a document of identity to the appellant. That may or may not be right if the appellant had sought the issue of such a document], but he had not. Nor is it an answer to these matters to say that the High Commission would not deny the issue of visas to Solomon Islands officials. The critical observation is that what was done by Australian officials not only facilitated the appellant's deportation, it facilitated his deportation by removal on 27 December 2007 when Australian officials in Honiara believed that this was not lawful and had told Australian officials in Canberra so. It follows that the maintenance of proceedings against the appellant on the indictment preferred against him on 3 November 2008 was an abuse of process of the court and should have been permanently stayed by the primary judge.

Heydon J (would dismiss the appeal)

67. One of the appellant's arguments for a permanent stay of the criminal proceedings against him is that there will be unfairness in his trial in the Queensland courts by reason of potentially unreliable evidence. The other argument centres on illegality in the method by which he was removed from the Solomon Islands and brought before the Queensland courts, but does not contend that that illegality would generate an unfairness in the trial.

Paying witnesses

68. The payment of money to the complainant and her family does not justify a permanent stay because it does not create incurable unfairness in the forthcoming trial. The payments did not bring the appellant before the Queensland courts. They were not unlawful. They were not offered in order to induce the complainant to provide information to detectives with a view to considering whether to prosecute. Instead they were requested by the complainant and her father in the summer of 2007-2008, after the Australian Federal Police had obtained affidavits from the complainant and her family, after the Commonwealth Director of Public Prosecutions had advised on 9 August 2006 that there were reasonable prospects of conviction, and after the Australian Government had in October 2006 taken steps with the Solomon Islands Government to procure the appellant's return to Australia. It is one thing to pay a person's living expenses as the price for the provision of a statement of the evidence which that person could give if called as a witness. Different considerations arise where payment of the living expenses of a person is requested after that person has provided a witness statement and the payment is made with a view to ensuring that that person is in a position to attend to give evidence. That is particularly so in cases where, as here, the prosecution was not in a position to compel the attendance at the trial of the witnesses who were paid. Finally, any bearing which the payments had on the witnesses' credit could have been explored in cross-examination at the trial, debated in address, and, if appropriate, referred to in the summing up.

Deportation of the appellant

69. The submissions of the respondent assumed that the appellant's case would have been made good had the Australian authorities "[connived] in [or colluded] with the Solomon Islands authorities to execute an unlawful deportation." The appellant's submissions depended on a test requiring "knowledge and connivance or involvement of the Australian executive". These submissions of the parties assumed the correctness of statements made by the Court of Appeal of the Supreme Court of New South Wales in Levinge v Director of Custodial Services and by the House of Lords in R v Horseferry Road Magistrates' Court; Ex parte Bennett. Those statements were to the effect that where an accused person is removed from one country and brought into another country in which a criminal prosecution is to take place, even though the removal does not create any risk of an unfair trial, and even though the court retains jurisdiction to try the accused person, the court has a discretionary power, or perhaps a duty, to order a permanent stay of the prosecution in certain circumstances. Below this will be called "the assumed rule". The statements in Levinge's case, being dicta, did not bind the courts below. And the statements in Bennett's case, being statements of the House of Lords, did not bind the courts below either. They certainly do not bind this Court. It was in the respondent's interest to attack the correctness of these statements in the courts below and in this Court. But no attack was made.

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106. Another point was raised by the New Zealand Court of Appeal. Richmond P, Woodhouse and Cooke JJ said: "this must never become an area where it will be sufficient to consider that the end has justified the means." That statement has particular significance, having been quoted by Kirby P in Levinge's case and Lord Griffiths in Bennett's case. The statement would have its greatest force if the officers responsible for launching and continuing the prosecution of the appellant, for example, were the officers involved in a breach of Solomon Islands law. But the lucid exposition of the factual circumstances in this appeal by the majority does not show that that was the case here. The circumstances do not suggest either that those in charge of the prosecution knew what was happening in the Solomon Islands in the last days of December 2007, or, that if they did, they appreciated that the behaviour of the Solomon Islands Government was in contravention of a local statute, and, worse, of Magistrate Lelapitu's order staying the execution of the deportation order, and in particular her order that the defendants before her not enter the appellant's house or approach the appellant. More fundamentally, however, the need not to let the end justify the means cannot support the assumed rule. That is because the means are incapable of justification. The question is what should be done given that unjustifiable means have been employed. One branch of government – the legislature – has enacted a command that a norm of conduct be complied with, backed that command with a sanction, imposed a duty on another branch of government – the executive – to investigate and prosecute alleged breaches of that command, and imposed on a third branch of government – the judiciary – the duty to decide whether the command has been disobeyed and whether the sanction should be imposed. Certain members of the second branch of government, the executive – state officials carrying out the duties of investigative and prosecuting authorities – have decided that a sufficient case exists to put a person accused of disobeying the command on trial. The third branch of government – the judiciary – is invited to frustrate the enforcement of the legislative command, to nullify the prosecuting authorities' decision, and to refuse to carry out its duty to try the case. The invitation is advanced not because the case against the accused is weak. It is not advanced because there would be any unfairness at the trial. Instead the invitation is advanced because certain officials who may be quite unconnected with the state officials responsible for the decision to investigate and prosecute have behaved in a particular way. A rule of law which holds that the judiciary should decline the invitation does not treat the end as justifying the means. It merely ensures that the accident of evil means should not disrupt the fulfilment of a just end. It ensures that a second evil will not be added to the first. It ensures that the judiciary will carry out its duty.

Order

107. The appeal should be dismissed. The respondent did not seek a costs order, and none should be made.

Leeming JA

1. As Bellew J observes, it is no small thing to order a permanent stay of criminal proceedings. The Court must be satisfied that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The emphasis is that of the High Court in R v Edwards [2009] HCA 20; 83 ALJR 717 at [23], demonstrating that a mere risk of unacceptable injustice or unfairness is insufficient. The High Court's emphasis also illustrates that an application for a stay does not involve the court declining to exercise its jurisdiction, contrary to what was said by the primary judge. Instead, the court's jurisdiction having been properly invoked, it is exercised, and exercised decisively - bringing the controversy to an end without a determination of the merits - but only if the heavy onus borne by the accused is discharged.

2. I agree with the reasons and conclusion of Bellew J. In particular, I agree that this is a case where error has been shown in the decision of the primary judge, that this should Court itself to exercise the power, that it should do so with the advantage of further evidence not before the primary judge, and that the heavy onus borne by the accused has been discharged - essentially by reason of the uncontested expert evidence of the unreliability of the memories recovered 37 years later coupled with the demonstrated evidence of prejudice to the defence case. The proceedings should be permanently stayed.

Adams J

3. I agree with Bellew J and the additional remarks of Leeming JA.

Bellew J

4. On 5 May 2014, at the commencement of a special hearing pursuant to the Mental Health (Forensic Provisions) Act 1990 ("the Act"), the applicant was arraigned before her Honour Judge Huggett on an Indictment containing 47 separate counts alleging that between 22 July 1973 and 30 November 1973 he committed various sexual assaults upon a male to whom I shall refer as "the complainant". Having been arraigned, the applicant sought a permanent stay of the proceedings.

5. In a judgment delivered on 12 May 2014, her Honour dismissed the application. The applicant now seeks leave, pursuant to s. 5F of the Criminal Appeal Act 1912, to appeal against her Honour's order.

…

8. Although the offending is alleged to have occurred in 1973 it was not until 21 October 2010, some 37 years later, that the complainant made a statement to the police. Having set out in that statement the allegations against the applicant, the complainant explained the circumstances of the disclosure of his alleged offending (AB 101)…

…

26. The committal proceedings at which the applicant and A gave evidence concluded on 5 August 2011, at which time the applicant was committed for trial in the District Court. On 5 February 2013 the matter came before Judge Frearson SC who was asked to determine the question of the applicant's fitness to stand trial.

27. In a judgment delivered on 6 February 2013 (AB 223-233) his Honour found the applicant unfit to be tried and referred the matter to the Mental Health Review Tribunal. On 6 August 2013, the Tribunal determined that the applicant would not, during the period of 12 months after the finding of unfitness, become fit to be tried (AB 234-254).

28. On 26 August 2013, the Director of Public Prosecutions advised the court, pursuant to s. 19 of the Act, of his intention to proceed with the charges against the applicant. A special hearing under s. 19 of the Act was fixed to commence before Judge Huggett on 5 May 2014.

…

29. Having been arraigned before her Honour, the applicant moved on a notice of motion (AB 82) which sought an order for a permanent stay of the proceedings on grounds which were pleaded in the following terms…

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31. Mr Williams deposed (commencing at AB 85) to various difficulties which the applicant had faced in obtaining relevant evidence. These difficulties, the majority of which stemmed from the long period which had elapsed since the alleged offending, included the inability to obtain documentary evidence which was corroborative of the applicant's instructions.

32. In particular, bearing in mind that some of the alleged offending is said to have occurred at the applicant's school residence, the applicant has instructed his solicitors that he was not living at the school at the relevant time, but was in fact living at another school with a friend (to whom I shall refer as "N"). In these circumstances, subpoenas were issued to each school for the production of documents which might corroborate those instructions. No documents were produced. The subpoena directed to the school at which the applicant was employed responded that it had "been unable to locate any documents" (AB 85). Whilst it was not expressly stated, it is reasonable to infer that the inability to produce documents in response to the subpoena had come about due to the passing of time.

…

55. It has been observed that the procedure for a special hearing under s. 19(2) of the Act has its shortcomings. In Subramaniam v R [2004] HCA 51; (2004) 211 ALR 1 it was observed (at [28]):

"It is self evident that a special hearing in which an accused is disabled from instructing his or her lawyers or in other ways from full participation in the proceedings will have its deficiencies. But no system of justice is perfect. Neither the deficiencies of a special hearing under the Act, nor the other matter which was referred to in submissions, that the Act reposes expansive and wide discretions in the State Attorney-General, provides reason not to construe and apply the Act according to its tenor."

56. However, the focus of the question before the primary judge was not the operation of the Act and its related deficiencies. The question was whether, having regard to the principles which apply to an application for a permanent stay of proceedings (which are canvassed below) such a remedy was warranted in the particular circumstances of the applicant. In my view, it was no part of the answer to that question to observe, as her Honour effectively did at AB 9-10, that aspects of the procedure under s.19 might be regarded as unfair in any event. The issue was not whether the operation of the Act was unfair. The issue was whether, because of the evidence to which counsel for the applicant had pointed, a stay was warranted. If the test for a stay was met, the fact that there may have been some inherent unfairness in the operation of the Act was irrelevant. In my view, in approaching the matter in this way, her Honour erred.

57. In addition, the overall effect of her Honour's reasoning at AB 9-10 was that because the Act may operate in a manner which could be regarded as unfair in any event, some different (and seemingly less stringent) test was to be applied in determining whether a stay should be granted. That was not correct. The same test stood to be applied notwithstanding that the proceedings which were sought to be stayed were a special hearing rather than a trial.

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61. In order to justify an order for a permanent stay of proceedings there must be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences: R v Glennon [1992] HCA 16; (1992) 173 CLR 592 at 605-6 per Mason CJ and Toohey J; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 111 per Wilson J; Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 34 per Mason CJ.

…

65. The offending conduct is alleged to have occurred more than 40 years ago. In the circumstances of the present case that is a factor which gives rise to a number of matters of significance. In my view, a combination of those matters gives rise to unacceptable injustice and unfairness, warranting a permanent stay of the proceedings.

…

71. It must also be emphasised that this is not just a case in which there has been a significant delay in the allegations being made. To view it in that way would be to oversimplify it. Rather, and quite apart from the fact of the delay, it is a case in which the process of recollection has been questioned, and in which the recollection itself has been categorised, without equivocation, as unreliable.

…

74. In the present case there is no independent corroboration of the complainant's allegations. Whilst that, of itself, may not be unusual in matters of this nature, the absence of independent corroboration assumes considerably greater significance in view of the process by which the allegations emerged. The only independent evidence before this Court which bears upon the complainant's allegations is the statement of N. That statement does not corroborate the complainant, but in fact goes some towards way to exculpating the applicant.

75. Finally, I should note that reference was made in the proceedings before her Honour, and before this Court, to the fact that the Crown would seek to rely upon the evidence which led to the applicant's previous convictions in 1995 (AB 301-305) as tendency evidence under s. 97 of the Evidence Act 1995. The Court has not been provided with a copy of any tendency notice served but in general terms, the evidence in question concerns assaults on schoolboys between 1969 and 1975.

76. Section 97 of the Evidence Act proceeds on the basis of inferential reasoning that people behave consistently in similar situations (see FB v R [2011] NSWCCA 217 at [23]; R v Chittadini [2008] NSWCCA 256; 198 A Crim R 492). For the evidence to be admissible, it would be incumbent upon the Crown to establish that it had significant probative value. Whilst striking similarity is not required, it remains the case that generally speaking, the closer and more particular the similarities, the more likely it is that the evidence will have significant probative value in the sense referred to in s 97 (see BP v R; R v BP [2010] NSWCCA 303 at [108] per Hodgson JA; see also the discussion by Basten JA in Saoud v R [2014] NSWCCA 136 at [39]- [44]).

77. The Crown conceded before this Court that the relevant similarity was limited to the broad nature of the offending and nothing else. Having read the material, and in light of the Crown's concession, I have considerable doubt as to its admissibility as tendency evidence. However, it is not necessary to resolve that question for the purposes of determining the present application. The fundamental unreliability of the complainant's evidence, along with the various other matters to which I have referred, satisfy me that the test for the grant of a permanent stay of proceedings has been met.

Leeming JA

1. This is an appeal as of right by the Crown, pursuant to s 5F(2) of the Criminal Appeal Act 1912 (NSW), from an interlocutory judgment of the District Court ordering a permanent stay on counts 6-20 of an indictment. Each of those counts charged the accused, Mr Brent Blackett, with an offence of sexual intercourse with a person above the age of 10 years and under the age of 16 years who is under the authority of the offender, pursuant to (former) s 66C(2) of the Crimes Act 1900 (NSW). Those counts were the only counts proceeding to trial. Guilty pleas had been entered in relation to counts 1-5, which charged Mr Blackett with offences of indecent assault and sexual intercourse with a person above the age of 10 years and under the age of 16 years, pursuant to (former) ss 61E(1) and 66C(1). There was a single female complainant, who cannot be named, and who was 13 or 14 at the time. Counts 1-5 concern a period between October 1987 and February 1988; counts 6-20 are alleged to have occurred between May 1988 and November 1988.

2. I have concluded that the primary judge applied an incorrect legal test in granting a permanent stay to counts 6-20 of the indictment, and that on the correct test, a permanent stay should not have issued. It should be said that the primary judge was asked to rule on that application immediately prior to the commencement of the trial, which his Honour did, and that in doing so, his Honour was not given the assistance to which he was entitled.

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11. The counts which are the subject of this appeal all concern events occurring after April 1988, when the complainant was 14. Each of those counts requires the Crown to establish acts of sexual intercourse between the complainant and accused at a time when she was under his authority. In the written submissions supplied on behalf of the accused at the hearing of the stay application in the District Court and in this Court, it was not denied that the alleged instances of sexual intercourse occurred; rather, he submitted that the charges could not succeed because there was no evidence that they occurred at a time when the complainant was under his authority.

…

19. At relevant times, s 61A(5) defined the additional element of authority in the aggravated offence created by s 66C(2) as follows:

“(5) For the purposes of sections 61D-66E, a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person.”

22. It will be seen that those submissions combined (a) the allegation that the prosecution was for a purpose said to amount to an abuse of process with (b) the proposition that there was “no evidence” (paragraph 5) or alternatively “scant, if no evidence” (paragraph 7) in support of the element of the offence that the complainant was under the authority of the accused. The former is a well-established species of abuse of process; the latter is very modern.

23. When the application was heard, counsel for Mr Blackett came close to accepting that the only question was whether there was evidence of authority (transcript, 1 March 2018, 13.19-38). The primary judge was, with respect, entirely correct to say that “there is no suggestion of bad faith on the part of the Director and ultimately Ms Hall seemed to concede that the true question that arises on the application is that set out in paragraph 5 of her submissions, namely that there is no evidence in the brief that has been served which would found a basis for a submission that the complainant was under the authority of the accused.” In oral submissions in this Court on 18 May, counsel acknowledged that this aspect of the claim, as originally formulated, could be put to one side.

27. Those authorities were not, and are not, apposite. To the contrary, the essential question is whether the applicant has discharged what is ordinarily a heavy onus of establishing that the prosecution was “foredoomed to fail”.

…

41. Those authorities recognise the tension between the power to stay a prosecution on the basis that it will fail, and the principle that the decision to prosecute, and as to the particular charge to be laid, are generally insusceptible of curial review. The latter was reaffirmed in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 (see especially at [20], [25] and [68]). The distinction was drawn by Gaudron, Gummow and Hayne JJ in Director of Public Prosecutions (SA) v B (1998) 194 CLR 566; [1998] HCA 45 at [21]:

“The line between, on the one hand, the decisions whether to institute or continue criminal proceedings (which are decisions the province of the executive) and on the other, decisions directed to ensuring a fair trial of an accused and the prevention of abuse of the court’s processes (which are the province of the courts) is of fundamental importance.”

42. It may readily be seen that reconciling the tension between the unreviewability of the prosecutorial discretion to institute proceedings and lay particular charges, and the jurisdiction to grant a stay in order to prevent an abuse of the court’s processes, may be far from straightforward. But there can be no doubt that the remedy of a permanent stay is an exceptional one. There is an important public interest in the ordinary processes of the criminal law resolving criminal prosecutions. As seen from the passages extracted above, the exceptionality of the jurisdiction has been framed in terms of “plain beyond argument”, “truly exceptional circumstances”, “only in the most exceptional circumstances” and “sparingly and with the utmost caution”.

43. Further, the authorities also disclose that what is required is not merely a gap in the evidence sustaining an element of the charge, but demonstration in advance of the trial that the gap is incurable. The language used to describe the heavy burden of demonstrating an inevitable failure varies: “foredoomed to fail”, “inevitably and manifestly fail”, “some incurable vice”, “the prosecution case is hopeless, plainly so and condemned to remain that way”, but the underlying principle is clear.

…

53. It may be accepted that, so far as appears from the witness statements which have been served, this is far from a strong Crown case. The respondent stressed that the present case differed from other historical sexual abuse cases, in two respects. First, it was not a case which turned greatly on credibility. Secondly, the procedural history had meant that the complainant’s second statement specifically addressed issues of authority, custody and care, such that it could confidently be concluded that the Crown case could rise no higher than had been served.

54. It is true that those matters make this Crown case different from many. Even so, the difficulty faced in an application for a permanent stay in advance of any evidence being led remains as outlined above. In particular, there can be no assurance on the basis of the statements served that the Crown case will not strengthen when witnesses are called. And it is to be recalled that the test in the authorities for a remedy which takes a prosecution away from the ordinary tribunal of fact is that it be shown that the case is irretrievably doomed to fail.

55. This is not an occasion for the exercise of the exceptional jurisdiction to grant a permanent stay. It cannot be said that this is a case where “the prosecution case is hopeless, plainly so and condemned to remain that way”. Although the facts are unusual, it is not a case where it can so confidently be concluded that the Crown “can be clearly seen to be foredoomed to fail” or “will inevitably and manifestly fail” (to cite the formulations approved and applied by this Court in Jasper at [19] and Agius at [18] reproduced above) such that the prosecution should be stayed rather than left to proceed in accordance with the ordinary processes of the law.

56. For those reasons, the appeal should be allowed on the basis of the ground added during the hearing of the appeal, the permanent stay ordered on 1 March 2018 set aside, and the proceedings remitted to the District Court for determination in accordance with law. Although the Crown concedes that count 17 should not go to trial, rather than leaving in place to that extent the order made by the primary judge, it is preferable to set aside the order in its entirety (which is the relief sought in the amended notice of appeal) and for the Crown to present an amended indictment reflecting that concession. In accordance with the agreed position of the parties, nothing need be said as to the construction of s 66C(2).

Button J

57. I agree with Leeming JA, and with the additional analysis of Fagan J.

Fagan J

58. I agree with Leeming JA. I add these observations concerning the setting of this stay application in the criminal process. As ultimately argued in the District Court this was not a claim for a stay on a ground such as abuse of process for a collateral purpose, or incurable unfairness to the respondent (through delay, for example), or prosecutorial action tending to bring the law into disrepute. The stay application was about whether the Crown can prove an element of the offences, namely, that the complainant was under the accused’s authority during the charge period. This depends upon what primary facts a jury could find concerning the relationship and what conclusions they could draw from those facts about the ultimate issue of authority. The application was entirely evidence-dependent.

59. However, it being a pre-trial application, the learned judge was asked to decide this issue of sufficiency of proof when the content of the Crown evidence had not been defined by being led and tendered. His Honour had before him only witness statements on the prosecution brief and documentary evidence which the Crown expects its witnesses to authenticate.

60. It was premature and procedurally inappropriate for the respondent to attempt to have the issue determined on a pre-trial application for a permanent stay. The application did not proceed upon agreed facts. Only when the trial has progressed to closure of the Crown case will there be a finite body of evidence eligible to be examined by a judge (namely, the trial judge) in order to rule whether it is capable of satisfying a jury beyond reasonable doubt on the element of authority.

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63. The point may be emphasised by contrasting this case with a prosecution in which, for example, it would be essential for the Crown to prove that the accused did not hold a certain licence. If it should be demonstrated on a stay application, from indisputable official records, that the licence was held, this would be an “incurable vice” of the prosecution. The charge would be “foredoomed to fail” and “condemned to remain” plainly hopeless.

64. The possibility that the evidence ultimately led and/or tendered by the Crown at trial may differ to some extent from what presently appears in the prosecution brief means that, even if a stay were granted, it could not be a permanent stay. This highlights the unsuitability, even futility, of the stay application as a procedure for raising the issue which was agitated before the learned judge. An order for a stay subject to it being lifted if the Crown should in the future be in a position to adduce additional or different evidence would be the most that could be asked for. That would provide the accused with no finality.

65. The above considerations all point to the close of the Crown case at trial as being the proper stage at which a judge should be asked to consider whether the evidence is capable of proving beyond reasonable doubt an element or fact of the nature which is in issue in these proceedings. That is to say, such an evidence-dependent issue should only be raised by way of application for a directed acquittal. Leeming JA’s reasons refer to long-standing statements of principle which deprecate intrusion of the court into decisions for which prosecuting authorities are responsible. A stay application upon an issue of fact and of proof such as that raised in this case invites a judge of the trial court to assess a Crown brief before arraignment.

66. The reservation of stays upon evidentiary grounds to exceptional cases is a rule designed to preclude judicial involvement in this prosecutorial function. This case is not exceptional in the relevant sense because, inherently in the nature of the fact in issue and the type of proof the Crown intends to adduce, it could not be said before the close of the Crown case that it is foredoomed to fail or that it is irreparably deficient and condemned to remain hopeless.

67. I agree that orders as proposed by Leeming JA should be made.

Kiefel CJ, Bell and Nettle JJ (would allow the appeal and stay the prosecutions)

1. These are appeals from a decision of the Court of Appeal of the Supreme Court of Victoria (Maxwell P, Redlich and Beach JJA) allowing appeals from orders of the primary judge permanently staying prosecutions of the appellants for offences contrary to the Criminal Code (Cth) and, in some cases, contrary to s 83(1)(a) of the Crimes Act 1958 (Vic). The appellants were compulsorily examined by the Australian Crime Commission ("the ACC") in 2010 prior to being charged with those offences. The principal issue in each appeal is whether the ACC acted so much in disregard of the requirements of Div 2 of Pt II of the Australian Crime Commission Act 2002 (Cth) ("the ACC Act") as it then stood, and therefore in unlawful violation of each appellant's common law right to silence, that the prosecutions should be stayed.

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48. Prior to their examinations, each appellant had been asked to participate in a cautioned record of interview by the AFP. Each had declined that request.

49. Mr Sage was an examiner appointed under s 46B of the ACC Act and acted as the examiner for each appellant's examination. The primary judge found that by the time of the examinations of each of the appellants, Sage was aware that they were regarded by the AFP as suspects and as persons who "may be charged" for the purposes of s 25A(9) of the ACC Act.

50. During the examinations, several AFP officers involved in Operation Thuja watched the examinations from a nearby room. Their presence was not disclosed to any of the appellants. There were six AFP officers in attendance at Galloway's examination; seven at Hodges'; nine at Strickland's; and six at Tucker's.

51. Following each examination, Sage made non-publication directions under s 25A(9) that permitted dissemination of examination material to the AFP and the Commonwealth Director of Public Prosecutions ("the CDPP"). The ACC provided audio recordings of the examinations of the appellants to both the AFP and the CDPP. In April 2012, some 10 months after Hodges, Strickland and Galloway were charged, the AFP provided electronic copies of their examination transcripts to the CDPP.

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57. The primary judge was clear, however, that Sage had entirely abrogated his statutory responsibilities at every level of the examination process. Her Honour found that Sage had been well aware that the appellants had been regarded as suspects by the AFP at the time of their examinations and that they had declined to participate in cautioned interviews. Accordingly, her Honour found that had Sage turned his mind to the requirements of s 25A(9), it should have been abundantly clear that the appellants were persons who "may be charged" and, therefore, persons entitled to the benefit of the protective provisions in s 25A. Instead of making appropriate orders, Sage made non-publication orders which would have the effect of completely undermining the appellants' rights to a fair trial. Her Honour added that while Sage's failure to tell the appellants that AFP officers were watching their examinations was not unlawful, his decision deprived the appellants of the opportunity to object or submit that their fair trial rights might be compromised.

58. Further, although the primary judge stated that she was unable to conclude that Sage acted in deliberate disregard of his statutory obligations, her Honour held that it was apparent that he had been "reckless" as to the discharge of his various obligations to an unacceptable degree, and that, if he had exercised his powers independently and with appropriate diligence, those responsible for investigating the alleged offences and preparing the prosecution brief would never have received the information which they received.

59. In fact, as the primary judge found, information obtained from the examinations was used to compile the prosecution brief and to obtain evidence against the appellants in circumstances where the AFP had no entitlement to obtain such information and would not have been able to do so if Sage had not exercised his powers inappropriately. The prosecution had therefore gained an unfair forensic advantage as a result of the prosecution brief having been prepared, at least in part, using information from the examinations. Moreover, as her Honour found, numerous investigators who were privy to the examinations would continue to be involved in giving evidence, liaising with witnesses, and suggesting avenues of examination and tactical decisions to be made at trial.

60. In the result, the primary judge found in relation to Strickland, Hodges and Tucker that the practical effect of each of their examinations had been to constrain their legitimate forensic choices in the conduct of their trials because of the answers they were compelled to give during those examinations. By contrast, in relation to Galloway, who, subsequent to his examination, participated in an interview with the AFP and voluntarily disclosed matters previously disclosed at his examination and then relied on that and his ACC examination during committal proceedings, the primary judge could not see what remaining forensic disadvantage could be said to result from his compulsory examination. But as her Honour later acknowledged, all of the appellants, including possibly Galloway, had been deprived of a forensic choice to test before a jury the basis upon which the documents in the prosecution brief were selected.

61. It followed, in her Honour's view, that it was practically impossible to "unscramble the egg" so as to remove the forensic advantage which the prosecution had improperly obtained, or to ameliorate the forensic disadvantage suffered by at least three of the appellants, with the possible exception being Galloway. Short of creating a new investigative team and conducting a new investigation, it would be impossible to ensure sufficient quarantining of the investigative officers and the prosecutorial team to mitigate the permeation of examination material from the prosecutions.

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78. Such a person can no longer decide the course which he or she should adopt at any subsequent trial according only to the strength of the prosecution case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial. Such a person must decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to the answers which he or she has been unlawfully compelled to give at the examination. And as will be explained in greater detail later in these reasons, such a person is thus denied the protection of the common law right to refuse to answer any question except under legal compulsion and the very protection which the Parliament, through the ACC Act, has ordained that he or she should have.

79. Moreover, such concerns are not to be sloughed off as captious or overly punctilious as, in effect, counsel for the CDPP submitted they should be. They go to the heart of the accusatorial nature of the criminal justice system. Nor need the court be informed or persuaded of specific respects in which the person's defence will or may be compromised in order to conclude that the forensic disadvantage resulting from the subjection of a person to an unlawful compulsory examination in relation to a matter in respect of which he or she is subsequently charged is significant. For assuming for the sake of argument that the person has given at least one answer in the course of the examination which can arguably be construed as an admission of guilt or otherwise against interest – and in these cases, the primary judge found that to be so at least in the case of Hodges, Tucker and Strickland – it must follow that the person has thereby been limited in the conduct of his or her defence in a manner to which he or she should not lawfully have been subjected.

80. In the particular circumstances of these cases, it is also no answer to the forensic disadvantage thus created to say that it may be overcome by the appointment of prosecutors who know nothing of the examinations. As the primary judge stated, compared to previous cases in which the effects of unlawful examination and dissemination of examination product have been considered, these cases involve an extraordinarily wide-ranging, undocumented dissemination of examination product to AFP officers involved in the investigation process, including to those who would be required to give evidence at trial. The lack of clear records of dissemination makes it extremely difficult to assess how and by whom the examination product has been used to build the prosecution case or how it might inform prosecution witnesses' responses to questions asked in cross-examination at trial.

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83. The Court of Appeal suggested that any forensic disadvantage of this kind could be overcome by an instruction to the witness that the witness not explain his or her actions by reference to what he or she learned, or believed he or she had learned, from the examinations. The suggestion that witnesses could be directed to avoid reference to the examinations, while truthfully answering questions concerning the basis for the selection of documents, has an air of unreality to it in light of the primary judge's finding of the extent of the use made by the AFP of the unlawfully obtained information to guide the selection of the materials included in the prosecution brief.

84. Nor is it an answer to the forensic disadvantage identified to say, as the Court of Appeal considered it to be, that it was incumbent on the appellants to demonstrate the respects in which the prosecution had been thereby advantaged. After all, how were the appellants practically to go about that? Where, as here, there were some tens of millions of relevant documents and no documentary record of the distribution of examination product within the AFP and the Office of the CDPP and the manner in which it was used to inform prosecutorial decisions, it would surely have been extremely difficult. And it would have been potentially dangerous for the appellants to make a serious attempt at discrediting the perfunctory denials of use which appeared in several prosecution witnesses' affidavits, as it would have risked exacerbating the prejudice to the appellants by potentially exposing perceived weaknesses in the prosecution case and possible paths of available defences.

85. In the result, all that can be said with any degree of confidence, as the primary judge in effect found, is that given the number of AFP officers who attended the examinations and that the examination product was disseminated far and wide within the AFP and the Office of the CDPP, it is practically impossible to try the appellants (with the possible exception of Galloway) without subjecting them to the forensic disadvantages which have been referred to. Regardless, therefore, of the extent to which the examination product was or was not of assistance to the prosecution in constructing the Crown case, the only sure way of wholly eradicating the effects of the unlawful examinations and the unlawful dissemination of the examination product would be to begin the investigation again, with different investigators, without access to the fact or results of the previous examinations. Short of that, the prejudice to a fair trial is at least to a significant extent incurable.

Bringing the administration of justice into disrepute

86. So to conclude is not necessarily to say that the forensic prejudice suffered by any of the appellants as a result of his unlawful compulsory examination would of itself constitute a sufficient basis to stay his prosecution. But the primary judge was correct to hold that, when such forensic disadvantage is taken in conjunction with Sage's unlawful, reckless disregard of his statutory responsibilities, the continued prosecution of the appellants would bring the administration of justice into disrepute.

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97. It is true that, in previous decisions regarding unlawful ACC examinations, the only circumstances in which it has been held necessary permanently to stay a prosecution to prevent the administration of justice falling into disrepute have been where there has been deliberately unlawful conduct on the part of investigative or prosecutorial authorities or at least advertent reckless disregard of lawful requirements. In argument before this Court, the CDPP relied on the reasoning of Bathurst CJ in X7 v The Queen ("X7 (No 2)") as representative of that course of authority. In that case it was held that, in circumstances where there is nothing to suggest that an unlawful examination has been conducted otherwise than in the bona fide belief that it is authorised by the ACC Act, and there is no incurable prejudice to a fair trial, a prosecution should not be stayed. It followed, in the CDPP's submission, that there is no basis here for a permanent stay of prosecution.

98. The circumstances here, however, are very different from those in X7 (No 2) and in previous authorities to which Bathurst CJ referred. Here, as has been explained, with the possible exception of Galloway, there is an indeterminate element of incurable prejudice as a consequence of the ACC's widespread, uncontrolled dissemination of the examination product to and within the AFP and the Office of the CDPP. More fundamentally and more significantly, far from there being no suggestion that the ACC acted otherwise than in the bona fide belief that what was done was lawful, in each of these cases the ACC through Sage acted in disregard of the stringent statutory requirements mandated by the Parliament for the protection of the liberty of the subject and to prevent prejudice to the subject's fair trial.

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106. Certainly, as this Court has stated repeatedly, a permanent stay of a criminal prosecution is an extraordinary step which will very rarely be justified. There is a powerful social imperative for those who are charged with criminal offences to be brought to trial and, for that reason, it has been said that a permanent stay of prosecution should only ever be granted where there is such a fundamental defect in the process leading to trial that nothing by way of reconstitution of the prosecutorial team or trial directions or other such arrangements can sufficiently relieve against the consequences of the defect as to afford those charged with a fair trial. But, as this Court has also stated, there is, too, a fundamental social concern to ensure that the end of a criminal prosecution does not justify the adoption of any and every means for securing a conviction and, therefore, a recognition that in rare and exceptional cases where a defect in process is so profound as to offend the integrity and functions of the court as such, it is necessary that proceedings be stayed in order to prevent the administration of justice falling into disrepute.

107. To condone such grossly negligent disregard of statutory protections and fundamental rights as occurred in these cases would be to encourage further negligent infractions of the strict statutory requirements of Div 2 of Pt II of the ACC Act and thus of the common law right to silence. In effect, it would be to imply that, short of intentional or advertent reckless disregard of the ACC Act, ACC officers might proceed however negligently in violation of the Act and the protections which it expressly affords to examinees, and therefore however much in violation of a suspect's common law right to silence, confident in the knowledge that this Court would wave through the results on condition only that there be a change of prosecutorial team and such trial directions as it might be hoped would ameliorate the prejudice thereby caused to the persons whose statutory and common law rights have thus been abused. To allow the prosecutions of the appellants to proceed in these cases would so much bring the administration of justice into disrepute that the prosecutions should be stayed.

Gageler J (would dismiss the appeal)

114. The administration of justice that has been brought into disrepute by the unlawful conduct of officers of the Australian Crime Commission ("the ACC") and of the Australian Federal Police ("the AFP") which founded the underlying applications for permanent stays of criminal proceedings against each appellant is the administration of justice by law enforcement agencies having responsibility for discharging the executive function of investigating criminal conduct. It is not the administration of justice by a court.

115. The prior unlawful conduct of the ACC and the AFP does not bring into disrepute the administration of justice by the court that is seized of jurisdiction in the criminal proceedings subsequently commenced and maintained against each appellant by the Commonwealth Director of Public Prosecutions ("the CDPP"). To the extent that the prior unlawful conduct of the ACC and the AFP has the potential to impact adversely on the conduct of those criminal proceedings, there is no reason now to conclude that substantial unfairness in the conduct of those proceedings is incapable of being averted through the adoption by the trial judge of measures less drastic than ordering a permanent stay. A permanent stay has not been shown now to be necessary and, for that reason, a permanent stay is at this stage inappropriate.

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129. Having a purpose of his own which he consistently explained as no more complicated than "to get witnesses to tell the truth, and be forthcoming about their knowledge of the activities about which they were being examined", Mr Sage singularly failed to exercise the independent judgment required of an ACC examiner under the ACC Act. Instead, he allowed himself to become a conduit for a process driven from beginning to end by officers of the AFP for the purposes of conducting their own investigation. To describe his conduct using the metaphor of the primary judge, Mr Sage acted as a "rubber stamp" for the AFP officers, who were conducting their own investigation.

130. Not only was each examination which Mr Sage conducted unlawful from the outset, both because the examination was not conducted for the purposes of any investigation into matters relating to federally relevant criminal activity which the ACC was in fact conducting and because the examination was conducted instead for the purposes of the AFP investigation, but Mr Sage failed in the course of those examinations to turn his mind to questions which he was statutorily obliged to consider in order to safeguard the interests of those he examined. He directed that AFP officers be present at each examination without inquiry as to who the various officers were and what role they played in relation to the investigation, arrest or prosecution of each appellant. He failed to inform each appellant of the clandestine presence of those officers. And, in defiance of the obligation of an examiner to give a direction that evidence given before the examiner must not be published "if the failure to do so might ... prejudice the fair trial of a person who ... may be ... charged with an offence", the non-publication directions he made imposed no restriction on the communication of any information extracted from each appellant to any officer of the AFP or of the CDPP.

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132. Flagrant as the unlawful conduct was, there is a need to be realistic about the extent of the potential for that conduct to impact on each appellant's trial. There has never been any suggestion that testimony given in the course of the examinations would be sought to be tendered at the trial. Had the examinations been lawful, direct use of the testimony in the trial would have been prohibited by the ACC Act. Had the examinations been lawful, derivative use of the testimony (in the sense of use of information contained in the testimony to obtain or assemble other evidence to be tendered at trial) would not have been prohibited by the ACC Act, except to the extent that a practical limitation on derivative use might have arisen from such restriction on communication as might have been imposed by a valid non-publication direction.

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139. For my own part, I see no reason to doubt the Court of Appeal's conclusion that both of those sources of potential prejudice to the appellants in the conduct of their defences at trial can, and therefore should, be adequately addressed by means less drastic than ordering a permanent stay. The guiding principle, as the Court of Appeal recognised, is that prejudice occasioned to a criminal defendant by circumstances outside a court's control ought to result in a permanent stay of criminal proceedings only if it is productive of substantial unfairness which cannot be substantially mitigated by the court exercising the control that it has over its own procedure.

140. In relation to such prejudice as might potentially be occasioned to Mr Strickland, Mr Tucker and Mr Hodges by reason of them being constrained by the testimony involuntarily extracted in the forensic posture available to be taken at trial, I adhere to the view I expressed with Keane J in Lee v New South Wales Crime Commission ("Lee (No 1)"). My view as there expressed was and remains that, accepting that deprivation of a legitimate forensic choice otherwise available to a criminal defendant from whom testimony has been involuntarily extracted has the potential to give rise to unfairness amounting to an interference with the due course of justice in a particular case, deprivation of such a legitimate forensic choice is not to be found merely by reason of an ethical constraint on the ability of a criminal defendant's legal representatives to lead evidence or cross-examine or make submissions to suggest a version of the facts which contradicts that testimony.

The defendant, of course, remains free to contradict or explain any previous testimony in the instructions he or she chooses to give to his or her legal representatives. To the extent that the defendant's instructions at trial depart from his or her previous testimony, his or her legal representatives are not disinhibited by the previous testimony from acting on those instructions. Indeed, they are bound to do so. Only to the extent that the defendant's instructions adhere to the previous testimony does the relevant ethical constraint arise. Even then, the ethical constraint on his or her legal representatives goes no further than to prevent them from suggesting a contrary version of the facts. The legal representatives are not constrained from making a submission, or from cross-examining in support of a submission, that the prosecution has failed to discharge its onus and burden of proof.

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145. To the extent that the unlawfully extracted and disseminated testimony of the appellants has come into the possession of officers of the CDPP, engagement of a new prosecution team is precisely the kind of remedial measure which the Court of Appeal identified as available and appropriate to be implemented by the trial judge in the context of the pending proceedings against the appellants. To the extent that the unlawfully communicated testimony of the appellants remains within the knowledge of officers of the AFP, some of whom may be called as witnesses to explain their selection of documents, the contemplation of the Court of Appeal was that those officers would appropriately be prohibited from communicating that information to the new prosecution team or to anyone connected with the prosecution. As noted by Gordon J, measures of that kind have since been implemented in undertakings given to and accepted by the primary judge.

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162. Here, the unlawful conduct of officers of the ACC and the AFP did not give rise to the offences with which the appellants have been charged, did not result in the commencement of the criminal proceedings against the appellants, does not inform the CDPP's intention to continue those proceedings, and produced no evidence on which the CDPP intends to rely in the proceedings. Insofar as the unlawful conduct resulted in the appellants making admissions against their interests which were made available to officers of the AFP and of the CDPP and on which officers of the AFP derivatively relied in locating and assembling documents on which the CDPP does intend to rely in the proceedings, there are procedural measures available and appropriate to be taken by the trial judge to mitigate the resultant forensic prejudice to the appellants to an extent which is likely to avoid substantial unfairness in the conduct of the proceedings.

163. Neither in permitting the proceedings to continue nor in implementing procedural measures for the purpose of avoiding substantial unfairness in the conduct of those proceedings can the court seized of jurisdiction in the proceedings realistically be characterised as tolerating or excusing the unlawful conduct which has occurred. The effect of the unlawful conduct on the conduct of the proceedings, in my opinion, is not such as to undermine public confidence in the administration of justice by that or any other court. Courts must be made of sterner stuff lest the public's confidence in them be eroded by their own timidity.

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Keane J (would allow the appeal and stay the prosecutions)

169. For the reasons that follow, I agree with the orders proposed by Kiefel CJ, Bell and Nettle JJ. In my opinion, the decision by the primary judge to take the extraordinary step of staying the prosecutions of the appellants was warranted in the extraordinary circumstances of this case. To continue the criminal trials of the appellants would bring the administration of justice into disrepute; and that would be so whether or not the departures from the requirements of the Australian Crime Commission Act 2002 (Cth) ("the Act") on the part of the Australian Crime Commission ("the ACC") and Mr Sage enured to the forensic disadvantage of the appellants.

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173. In this case the primary judge was given no reason to conclude that the trials of the appellants can, or will, be quarantined from the effects of the lawless conduct which occurred. That being so, the appellants have made out their case for a stay by reference to the third category of abuse of process. Accordingly, it is, in my respectful opinion, unnecessary to consider whether any of the appellants would suffer a forensic disadvantage at his trial so as to bring his case within the second category referred to in Rogers and Moti.

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180. It may be accepted that, for some kinds of criminal offences, a lack of understanding by a person of certain matters may preclude a finding of recklessness on the part of that person. But here the issue is whether it would bring the work of the courts into disrepute if they were to facilitate a proceeding pursued in defiance of the legislative will by an agency of the executive government. In this context, there is no reason to draw a distinction between a deliberate or reckless disregard of the requirements of the Act by agents of the executive government on the one hand, and an incompetent disregard of the law on the other. In either case, the disregard of the law leads to an episode of lawlessness apt to defeat the purpose of the Act.

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194. The primary judge found that information from the examinations was used by the Australian Federal Police ("the AFP") to compile the prosecution brief and to obtain evidence which the AFP would not otherwise have been able to obtain. Further, the lack of clear records in respect of the dissemination of this material to AFP officers involved in the prosecutions made it difficult to determine by whom it had been used. Her Honour concluded that only the creation of a new investigative team to conduct a new investigation could remove the effect of the consequences of the departures from the Act upon the trials of the appellants. Her Honour was given no reason to be satisfied that this would, or could, occur. On that basis, her Honour's decision to stay the prosecutions was amply justified.

Gordon J (would dismiss the appeal)

204. The question raised by these appeals is whether, in all the circumstances, each appellant would receive a fair trial or whether, in any event, there should be a permanent stay of the prosecution of the charges against the appellants to prevent the court's processes being used in a manner inconsistent with the recognised purposes of the administration of justice. The ACC's conduct may be condemned. But if a fair trial can be had, or if it is not possible to say now that a fair trial cannot be had, why would the administration of justice be brought into disrepute?

205. In the circumstances of these appeals, the administration of justice would not be brought into disrepute if the prosecutions were permitted to proceed.

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236. Two practical matters or issues were identified in argument – first, the AFP investigators might disclose the illegally obtained evidence (the contents of the examinations) to the replacement prosecutors and, second, if the AFP investigators are called to give evidence at any trial, they may be asked questions which, if answered truthfully and completely, would require disclosure of the fact of the examinations or, so it is said, the contents of the illegally obtained evidence.

237. The first has been addressed. The AFP investigators have provided extensive undertakings to the Supreme Court. There is nothing to suggest that the AFP investigators have not complied, or will not comply, with those undertakings. Of course, if an AFP investigator failed to comply, the prosecution would be obliged to bring that fact to the attention of defence counsel and the Supreme Court, and the trial judge would then have to decide whether the trial of the accused should continue.

238. The second issue – that if the AFP investigators are called to give evidence at any trial, they may be asked questions which, if answered truthfully and completely, would require them to disclose the fact of and the contents of the examinations – has not arisen. The trial has not yet been held. As is often the case in white collar crime, the prosecution case against the appellants is largely documentary. It is not known if the issue just identified will arise and, if it does, how and at what point in the trial. If such an issue did arise then, having ascertained what the issue is and the circumstances in which it has arisen, it would be for the trial judge to consider how to address the issue – including granting a stay, tempering the rules and practices to accommodate the case concerned, or making appropriate directions to the jury. For example, an unreliability warning under s 32 of the Jury Directions Act 2015 (Vic) may be made if a party in a jury trial requests such a warning and the evidence in question is "of a kind that may be unreliable", within the meaning of s 31 of that Act. Not only are the categories listed in s 31 not closed, jury directions are just one of the many steps that could be taken by a trial judge to protect an accused's right to a fair trial.

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241. In any event, any disadvantage said to arise from the appellants being "locked in" has been, or is capable of being, remedied. As noted earlier, the "locked-in" version of events would not be known to the replacement prosecution team. The orders made by the examiner under s 30(5) prevent the transcripts and recordings of the examinations from being admissible as evidence in criminal proceedings against the appellants. The undertakings given by the AFP investigators and the replacement prosecution team are aimed at ensuring that the fact and contents of the examinations do not otherwise come into the hands of the replacement prosecution team. The prosecution must prove its case beyond reasonable doubt, and the appellants remain entitled to put the prosecution to its proof.

Edelman J

248. A permanent stay of proceedings for an abuse of process is a measure of last resort. It will be ordered where there is no other way to prevent an unfair trial. It will also be ordered where there is no other way to protect the integrity of the system of justice administered by the court. The latter category, which can be conveniently described as protecting the "integrity of the court", is the concern of these appeals.

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251. In the circumstances of these appeals, the safeguards were ignored. After the appellants had refused to answer questions from the AFP, the AFP unlawfully used the ACC, without any special operation or investigation being undertaken or conducted by the ACC, as a "hearing room for hire" to compel the appellants to answer questions. Many of the police investigators secretly watched from a nearby room as the appellants were compelled to incriminate themselves. The transcripts of the interviews were widely disseminated to the AFP and prosecution teams.

252. The conduct of the unlawful examinations involved the AFP dictating who would be examined, whether and when the examinations would be held, and generally the questions that would be asked at the examinations. The AFP had two purposes, supported by the conduct of the ACC examiner, whose improper purpose was to assist the police generally. The AFP's purposes were (i) to lock each of the appellants into a version of events on oath in an attempt to prevent them from providing an alternative version at any trial, and (ii) to obtain assistance in knowing what to look for in assembling any briefs for the prosecution from tens of millions of documents. Both of those purposes were achieved. The appellants gave their versions of the events on oath. And briefs were compiled using the material obtained following a refined search, which material was described by the lead investigator as "the most significant influence on the charging decision and the focus of the investigation".

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254. For the reasons below, the primary judge was correct to order that the proceedings be permanently stayed. The serious nature of the charges is subordinated to the potential damage to the integrity of the court if a trial were to proceed. A permanent stay of proceedings is necessary as it is the only response that can adequately protect the integrity of the court. The appeals to this Court should be allowed, and orders made as proposed in the joint judgment of Kiefel CJ, Bell and Nettle JJ.

255. During the course of preparing and writing these reasons, I have had the benefit of reading the joint judgment and the reasons of Keane J. In these reasons I agree with, and gratefully adopt, various sections of the joint judgment. I also agree with the reasons of Keane J. However, in light of (i) the importance of the power to stay proceedings as an abuse of process, and (ii) the divergence of views about its scope and application, this is an instance where the expression of separate reasons may help the common law to "work itself pure".

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262. There is a substantial public interest in prosecuting persons reasonably suspected of having committed a crime, and against whom there is a prima facie case with reasonable prospects of conviction. The more serious the offence, the stronger will be the public interest and therefore the more fundamental, and irreparable, the systemic incoherence must be in order to justify a permanent stay of proceedings. But the public interest in prosecuting persons reasonably suspected of crimes is not absolute. The most obvious instance of this is the discretion vested in the CDPP, and every Director of Public Prosecutions of the States and Territories, to decline, in the public interest, to prosecute a person reasonably suspected of an offence and against whom there is a prima facie case. The expressed factors that can be considered in the exercise of that discretion include "whether or not the prosecution would be perceived as counter-productive to the interests of justice" and the necessity to maintain public confidence in the courts.

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264. Before a permanent stay can be ordered, it is necessary to consider whether there are any other curial measures that could be taken to address any systemic incoherence that would be caused by a trial of the accused. This must be considered because the court's ability to protect its integrity is not confined to orders that grant a permanent stay of proceedings.

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289. There are two reasons why the failure of the appellants to prove strict causation or the precise contribution made by the unlawful conduct should not prevent the conclusion that a permanent stay is necessary to protect the integrity of the court.

290. First, as to the extent of the contribution, that information was peculiarly within the knowledge of the AFP and the prosecution, "which has the responsibility of ensuring its case is presented properly and with fairness to the accused". Evidence is "weighed according to the proof which it is in the power of one side to have produced and the power of the other to have contradicted". There is a ring of absurdity to the submission that the appellants had made a forensic choice not to attempt to cross-examine members of the AFP in circumstances where (i) the AFP kept no record about which searches were conducted as a result of information provided by each appellant, and (ii) it would have been extremely difficult to trace the precise mental process followed by individual police officers in using particular information from the examinations, by itself or in combination with other information, to identify particular key documents. Indeed, with a large team of police officers, tens of millions of available documents, many hours of examinations, and the fact that examination answers could not be related to documents in a binary equation of "contribution" or "no contribution", the suggested exercise of cross-examination was described by the primary judge as "extremely difficult". Indeed, as she acknowledged, this description was an understatement. It is doubtful that the conclusion could ever have been put any more precisely, or that the appellants could have proved anything more than the primary judge's natural inference that the police obtained "a substantial investigative advantage".

291. Secondly, proof of a strict causal connection should not always be required. In relation to exclusion of evidence on the "public policy" ground of protecting the integrity of the court, although the improper or unlawful conduct must be a contributing factor to the obtaining of the evidence to be excluded, there is no requirement for proof of a strict causal connection between the conduct and the obtaining of the unlawful evidence. The same should apply to conduct upon which a stay of proceedings is sought on that same ground. In Moti, it would have been no answer to the allegation of abuse of process for the respondent to say that there could be no prejudice to the integrity of the court because the same result might have been achieved lawfully, through the extradition process. Equally, given the nature and extent of the unlawful examinations and contraventions of the ACC Act, it cannot be an answer in this case to say that the same information might have been extracted from the appellants by lawful means, had there been a genuine investigation and had the examinations been conducted lawfully.

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297. It is an extreme measure to stay proceedings permanently as an abuse of process on the basis that the administration of justice would be brought into disrepute. But a permanent stay can be ordered where, despite the public interest in prosecuting reasonably suspected crime, no less extreme remedial measure will sufficiently avoid the damage to the integrity of the court. The integrity of the court would be impaired by trials of the appellants. No lesser remedial measure was offered or available to prevent the stultification of key safeguards in the ACC Act and the achievement of the unlawful purposes for which those safeguards were contravened.

Bell CJ

1. On 7 September 2022, Musgrave DCJ (the primary judge) dismissed a notice of motion seeking orders that the prosecution of Jason La Rocca (the Applicant) be permanently stayed.

2. The Applicant was charged with attempting to possess a commercial quantity of an unlawfully imported border controlled drug under ss 11.1(1) and 307.5(1) of the Criminal Code Act 1995 (Cth) (the Code).

3. Section 307.5 of the Code provides that:

“307.5   Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

(1)   A person commits an offence if:

(a)   the person possesses a substance; and

(b)   the substance was unlawfully imported; and

(c)   the substance is a border controlled drug or border controlled plant; and

(d)   the quantity possessed is a commercial quantity.

Penalty:  Imprisonment for life or 7,500 penalty units, or both.

(2)   Absolute liability applies to paragraphs (1)(b) and (d).

(3)   The fault element for paragraph (1)(c) is recklessness.

(4)   Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).”

4. As can be seen, the offence is subject to a statutory defence under s 307.5(4) of the Code. In order successfully to raise that defence, a person in possession of or attempting to possess an unlawfully imported commercial quantity of a border controlled drug must prove, on the balance of probabilities, that he or she did not know that the border controlled drug was unlawfully imported.

5. The basis for the stay application in the present case was a particular action of the officer in charge of the investigation which led to the Applicant being apprehended and charged (the impugned conduct). That action had the effect of depriving the Applicant of his ability to seek to take advantage of the statutory defence under sub–s 307.5(4) of the Code.

6. The impugned conduct involved the officer affixing a prominent Singapore Airlines label to one of two boxes which formed part of a consignment imported from Singapore that was intercepted and inspected by the Australian Border Force (ABF), as explained more fully below. That label, as the officer ultimately accepted under cross examination, made it “painstakingly obvious” to anyone seeing the box to which it had been affixed that its contents had been imported from abroad. A recipient of the box without that label may not have known its origin and, if he or she could establish that matter on the balance of probabilities, he or she would not be liable under s 307.5, even if the consignment of goods had in fact been imported from abroad and contained a commercial quantity of a border controlled drug.

7. Whether the Applicant could still be liable for, or could subsequently be charged with, some other offence relating to possession of a commercial quantity of drugs, even if the current proceedings were permanently stayed, was not a matter before the Court.

...

Factual Context

9. On 30 August 2017, the ABF intercepted a palette which was affixed with an air waybill marked to an address in Bradbury NSW. The palette contained, among other things, three boxes of candles from a Singapore Airlines flight which presumptive testing suggested contained 3,4-Methyl​enedioxy​methamphetamine (MDMA). The ABF “Receipt for Goods” form, completed on the same day, recorded an air waybill number.

10. Australian Federal Police officers subsequently took custody of the consignment.

11. The consignment was then provided to the NSW Police for further investigation on 11 September 2017. The New South Wales Police determined that of the 231 candles contained in the three boxes, 66 contained concealed MDMA which had a net weight of around 14.69kgs.

12. There was no evidence before the Court, and the Crown Case Statement contained no detail, as to the appearance of the boxes upon their arrival in Australia. In particular, there was no evidence that the boxes, when they originally arrived in Australia as part of a larger consignment of goods, had any markings indicating that they emanated from Singapore or anywhere outside of Australia (although that was the objective fact).

13. Although the existence of an air waybill in relation to the boxes may be inferred from the ABF Receipt for Goods form referred to at [9] above, there was no evidence as to whether the boxes originally had had an air waybill physically attached to them nor as to what the contents of any air waybill may have indicated as to the point of origin of the consignment, even if an air waybill had been physically attached to the boxes.

14. A controlled operation authority was issued on 13 September 2017 pursuant to the Law Enforcement (Controlled Operations) Act 1997 (NSW) (Controlled Operations Act).

15. Section 13(a) of the Controlled Operations Act authorises each law enforcement participant to engage in the “controlled activities” specified in the authority in respect of the law enforcement participants. The controlled activities specified in the authority did not extend to the impugned conduct described more fully below.

16. Due to the number of candles which had been removed from the original three boxes for investigation and for the purposes of orchestrating a controlled delivery, 132 of the candles were re-packaged into two boxes. In this process, as noted above, the officer in charge affixed a prominent, coloured Singapore Airlines label with an air waybill number written on it to one of the two boxes alongside Australia Post labels which bore the Bradbury delivery address. The officer agreed under cross examination that the Singapore Airlines label was a new element in the appearance of the box compared to how he had first seen it.

...

24. The vice of the officer’s actions was that, as a result of the interference with the appearance of the boxes by the affixing of the Singapore Airlines label, it was made impossible for the Applicant to contend that he did not appreciate that the consignment was unlawfully imported. The Crown Case Statement contained no other evidence which bore upon the Applicant’s knowledge as to the point of origin of the goods contained in the two boxes, and Ms Callan SC, senior counsel for the Crown, confirmed in the course of argument on the appeal that there was no such evidence.

25. The possibility of the Applicant raising a defence of ignorance as to the foreign origin of the goods was rendered practically futile because of the obvious inference that would arise from the presence of the Singapore Airlines label and the inconsistency of this inference with a position of ignorance as to the origin of the consignment, namely a place outside Australia.

26. The officer’s conduct was thus said to have subjected the Applicant to a forensic disadvantage which, critically, the Crown conceded was incurable. The primary judge agreed, going so far as to observe that “the fact of the label means the accused cannot raise the statutory defence”. Her Honour held that the disadvantage could not be cured “by direction, exclusion of evidence or quarantining areas of examination”.

27. Her Honour also found, however, that the officer’s acts were “not a deliberate or reckless disregard of legal requirements” but “were a result of inexperience on his part and a lack of diligence and sophistication in the transfer, deconstruction [of the consignment] and reconstruction by the multiple agencies”.

28. Notwithstanding the primary judge’s finding that the impugned conduct had deprived the Applicant of the opportunity to seek to make out the statutory defence, her Honour was not satisfied that the administration of justice would be brought into disrepute if the proceedings were not stayed.

...

Applicable principles and authorities

34. The following principles or statements of authority relating to the grant of a permanent stay of a criminal prosecution appear to be uncontroversial:

1. the remedy is an extraordinary one, only to be given in exceptional or extreme circumstances: R v Glennon (1992) 173 CLR 592 at 605; [1992] HCA 16 (Glennon); Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [33]-[35] (Dupas); Strickland at [166];

2. such a description recognises the powerful social imperative for those who are charged with criminal offences to be brought to trial: Strickland at [106], see also at [166]-[167], [262];

3. notwithstanding this, the categories or circumstances in which the exceptional remedy of a permanent stay of criminal proceedings may be granted are not and should not be closed: Strickland at [99];

4. there is no “definitive category” of extreme cases: Dupas at [35];

5. each case accordingly must be decided according to its own facts: Moti v The Queen (2011) 245 CLR 456; [2011] HCA 50 (Moti) at [60]; Strickland at [99], [246], [261];

6. a permanent stay of criminal proceedings may be appropriate where to refuse such a remedy would bring the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; [1994] HCA 42; Moti at [10];

7. the administration of justice may be brought into disrepute in a number of different ways;

8. one example which may warrant a permanent stay is the toleration of an unfair trial where there is a fundamental defect which goes to the root of the trial “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences”: Barton v The Queen (1980) 147 CLR 75 at 111; [1980] HCA 48; Jago v District Court (NSW) (1989) 168 CLR 23 at 34; [1989] HCA 46; Glennon at 605-606; Dupas at [35];

9. other examples include where the manner in which the case was developed and brought:

• was contrary to basic tenets of the Australian criminal justice system as may be embodied in statute: Strickland at [261], see also at [186]-[187];

• was contrary to the rule of law: R v Horseferry Road Magistrates’ Court; ex parte Bennett [1994] 1 AC 42 at 62, 67; R v Grant [2009] 2 SCR 353 at [67];

• was otherwise corrosive of the “trust reposed constitutionally in the courts”: Moti at [57]; or

• presented a defect in process “so profound as to offend the integrity and functions of the court as such”: Strickland at [106].

10. considerations beyond the immediate trial may bear upon confidence in the administration of justice: Strickland at [270]; Ridgeway at 75, 77-78, 86-87, 92;

11. the administration of justice may be brought into disrepute where a miscarriage of justice would be the result of a failure to grant a permanent stay of proceedings: Glennon at 616, 624;

12. the administration of justice may be brought into disrepute irrespective of whether the conduct affecting proceedings is deliberate or reckless, and the grant of a permanent stay of proceedings is not confined to cases of deliberate and knowing misconduct nor dependent upon the initial motivation or purpose of the offending party: Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [135]; Strickland at [99];

13. the administration of justice will not necessarily be brought into disrepute, however, where prejudice to an accused may be cured by, for example, directions to a jury or undertakings by prosecuting authorities, or where the prejudice is of a minor or venial nature: Strickland at [100].

35. Many of these principles are illustrated by the decision in Strickland upon which much of the argument in the present case centred.

...

56. Just as there will be a substantial miscarriage of justice where an accused has lost a chance which was fairly open to him of being acquitted, so too in the present case, the Applicant forever lost that chance as a result of the conduct of the officer in charge of the investigation who altered the appearance of one of the boxes in a way that destroyed the possibility of raising the statutory defence. Any evidence that he may otherwise have given to the effect that he did not know, when he took possession of the boxes, of the origin of their contents would have been immediately defeated or fatally undermined by what was implied by the obvious Singapore Airlines label.

57. The deprivation of the opportunity to raise such a defence was not diminished in its seriousness by the timing of its “crystallisation”, to use the term employed by the primary judge in the final sentence of the dispositive paragraph of her reasons. In circumstances where it was no part of the Crown case that the Applicant in fact had some other prior source of knowledge as to the point of origin of the goods in question and appreciated that they had been imported from overseas, the officer’s conduct in altering the appearance of the box could not be dismissed as “venial” or inconsequential. As the Crown conceded, and was a matter of great significance, this was not a forensic disadvantage that it was suggested could be cured by directions or undertakings. The egg could not be unscrambled: Strickland at [292].

58 .The primary judge was also strongly swayed by her conclusion that the concededly incurable disadvantage to the Applicant was not caused by any deliberate or intentional conduct on the part of the officer in charge. To emphasise that point, as her Honour did with her use of the word “However” and her identification of this matter as her first (of two) reasons given in support of the ultimate refusal of the stay, was, with respect, to overlook the very clear statements by the plurality and Keane J in Strickland to the effect that deliberate, intentional or reckless misconduct was not essential in order for a permanent stay to be warranted. That is perhaps particularly so when the consequences of the conduct concerned were potentially so profound.

59. If unlawfully obtaining evidence of the truth is problematic, as it was held to be in Strickland, the alteration of the appearance of evidence with concededly material consequences for the availability of a potential defence is even more problematic. For a court to entertain criminal proceedings in this context would be apt to bring the administration of justice into disrepute.

60. True it is that the existence of deliberate or reckless conduct will be more obviously corrosive of the proper repute in which the administration of justice should be held and will weigh heavily in a court’s earnest consideration whether to grant a permanent stay of criminal proceedings: Strickland at [100]. But less egregious, although still unlawful and negligent or incompetent conduct, with serious consequences for an accused may equally warrant the granting of a permanent stay of criminal proceedings.

61. Whilst it was relevant for the primary judge to have regard to the fact that the consequences of the officer’s conduct were neither deliberate nor intended, the seriousness of those consequences and the circumvention of the will of the legislature as a result of the officer’s actions diminished any significance that could be attached to the intention or state of mind of the officer.

62. Further to the taking into account of an irrelevant consideration noted at [54] above, in circumstances where the prejudice to the Applicant was conceded to be incurable in the context of a serious offence carrying a maximum sentence of life imprisonment and where it was the consequence of conduct which the primary judge held resulted from “inexperience” and “a lack of diligence” on the part of the officiating officer, in my opinion, the primary judge’s exercise of discretion miscarried and a permanent stay of proceedings should have been granted.

63. This conclusion is not the result of a mere difference of opinion with the primary judge. Any mere disagreement would not warrant interference with her Honours discretionary decision. Rather, it follows from a consideration of the authorities summarised above in light of the matters referred to in the previous paragraph. In short and with respect, the primary judge’s refusal to grant the stay was not one that was reasonably open to her on the extraordinary facts of the present case. The deliberate alteration of the appearance of evidence in a way directly relevant and material to the ability to establish a statutory defence is a matter that “goes to the very root of the administration of justice”: Strickland at [100].

64. It would, in my view, bring the administration of justice into disrepute to permit the Applicant to be tried in circumstances where he was practically deprived of the potential to raise a defence expressly provided for by the legislature but which was destroyed by the deliberate act of the investigating officer in altering the appearance of the consignment of goods.

Conclusion

65. For the above reasons, leave to appeal should be granted, the appeal allowed, the order dismissing the notice of motion for a permanent stay of proceedings should be set aside and, in lieu thereof, it should be ordered that the proceedings be permanently stayed.

Davies J

66. I agree with Bell CJ

N Adams J

67. I agree with the orders proposed by Bell CJ for the reasons provided by his Honour, but I wish to make clear the underlying facts upon which that concurrence is based.

...

70. It was the applicant’s position on this appeal that an accused person cannot be required to identify any actual forensic disadvantage suffered in stay proceedings such as these if to do so would require him or her to foreshadow what their defence might be at trial. That submission had less force in this case given that the applicant ran a positive defence at his first trial. His conviction was the subject of a successful appeal to this court and a new trial was ordered: La Rocca v R [2021] NSWCCA 116. The applicant stood trial with his co-accused and both men ran a “cut throat defence”: they each alleged that they were the “innocent dupe” of the other (see at [65]-[76]). Although the co-offender gave evidence, the applicant did not, electing instead to call two witnesses to support his case.

71. It is undoubtedly correct that an accused person cannot be required to foreshadow his or her defence in order to identify the scope of an alleged forensic disadvantage relied upon to ground a stay. Rather, it remains a tactical decision for an accused person as to how much of their hand they wish to reveal in order to establish any alleged forensic disadvantage. But that decision is to be made in the context that it is the accused person who bears the onus of establishing that a stay should be granted.

72. Ultimately, it was not necessary for the applicant to indicate the scope of his alleged forensic disadvantage in this matter as the Crown conceded that he had suffered an incurable forensic disadvantage by the actions of police and not simply a theoretical one. It was in those circumstances that the primary judge concluded that the addition of the label “means the accused cannot raise the statutory defence”. My concurrence with the orders proposed by Bell CJ is based on the uncontested presumption that the applicant has in fact suffered an incurable forensic disadvantage as a result of the conduct of police.