Jago v District Court (NSW)
168 CLR 2387 ALR 577
(Judgment by: Mason CJ) Court:
Judges:
Mason CJBrennan J
Deane J
Toohey J
Gaudron J
Judgment date: 12 October 1989
Canberra
Judgment by:
Mason CJ
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.
It is convenient to commence by considering the inherent power of courts to prevent abuses of their process. It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v. NSW Bar Association (1960) 104 CLR 186 , at p 201; Barton v. The Queen (1980) 147 CLR 75 , at pp 96, 107, 116. Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice: see Hamilton v. Oades (1989) 63 ALJR 352 , at p 358; 85 ALR 1 , at p 11. But it may be that "injustice" in this context has a limited meaning, although the power is not to be confined to closed categories: Jackson v. Sterling Industries Ltd. (1987) 162 CLR 612 , at p 639; Hamilton v. Oades, at p 358; p 11 of ALR In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important: Jack Brabham Holdings Pty. Ltd. v. Minister for Industry, Technology and Commerce (1988) 85 ALR 640 , at pp 649-651.
This Court has not yet decided whether the power to prevent abuses of process extends to a power to prevent unfairness generally (see Barton v. The Queen, at pp 96-97), although lower courts have not found difficulty with such an approach: Herron v. McGregor [1986] 6 NSWLR 246 , at pp 250-251; Reg. v. Clarkson (1987) VR 962 , at pp 967-973; Watson v. Attorney-General (NSW) [1987] 8 NSWLR 685 , at p 697; Clayton v. Ralphs and Manos (1987) 45 SASR 347 , at p 363; Cooke v. Purcell (1988) 14 NSWLR 51 , at pp 63, 77. There are references to the right to a fair trial in Barton, consistent with the broader view but not decisive of the question: see per Stephen J. (at pp 104-105), Murphy J. (at p 107), Wilson J. (at pp 111, 115-117). Gibbs A.C.J. and I, with whom Aickin J. agreed, left the question open (at pp 96-97).
Accordingly, since Barton was decided, decisions in other courts have endorsed the proposition that, at least in cases of undue delay, the courts possess power to stay criminal proceedings in order to prevent "injustice" to the accused. Indeed, that view seems to have been accepted as long ago as 1844 in Reg. v. Robins (1844) 1 Cox CC 114, where the jury was directed to acquit the accused. But the broader proposition, so far not decisively supported by authority, is that the power exists generally, and not only where the complaint is one of undue delay. It is not necessary in this case to address that more general issue. But it is necessary to decide whether the limited power I have described is in truth merely an example of the power to prevent abuse of process, in any of the narrower senses in which that power has traditionally been understood: see Varawa v. Howard Smith Co. Ltd. (1911) 13 CLR 35 , at p 55. If it is, then the scope for its exercise is significantly reduced.
In Connelly v. D.P.P. (1964) AC 1254 , Lord Devlin stated (at p 1347) that in his view "a general power, taking various specific forms, to prevent unfairness to the accused has always been a part of the English criminal law". Two of those specific forms included the doctrine of autrefois and the rule requiring that a confession to police be voluntary if it is to be admitted into evidence. Lord Pearce (at p 1365) said that a court has a duty to stop a prosecution which "creates abuse and injustice", and expressed agreement with the relevant parts of the opinion of Lord Devlin (at p 1368). Lord Reid (at p 1296) agreed with each of their Lordships although he appeared not to wish to commit himself on "any general question as to the extent of the discretion of the court to prevent a trial from taking place", a reservation he subsequently confirmed in Atkinson v. USA Government (1971) AC 197 , at p 232. Lord Morris of Borth-y-Gest stated (at pp 1301-1302) that the inherent power of a court "to prevent abuses of its process and to control its own procedure must in a criminal court include a power to safeguard an accused person from oppression or prejudice". But he regarded that power as being of a more limited nature, remarking (at p 1304) that it would be "an unfortunate innovation if it were held that the power of a court to prevent any abuse of its process or to ensure compliance with correct procedure enabled a judge to suppress a prosecution merely because he regretted that it was taking place". Lord Hodson (at pp 1335, 1337-1338) rejected the view that the courts have a wide discretion, in the exercise of the power to prevent abuses of process, to stop any prosecution.
The House of Lords returned to the subject in Reg. v. Humphrys (1977) AC 1 . Viscount Dilhorne agreed with the approaches of Lord Morris of Borth-y-Gest and Lord Hodson in Connelly and doubted (at p 26) whether a court may in the exercise of discretion decline to hear proceedings on the ground that they are oppressive and an abuse of process. On the other hand, Lord Salmon (at pp 45-46) agreed with the approach of Lord Devlin and Lord Pearce in Connelly, and Lord Edmund-Davies (at p 55) expressed a similar view.
It is therefore not clearly settled in the United Kingdom whether a court's power to protect itself from an abuse of process in criminal proceedings extends to a power to prevent unfairness to the accused or whether it is limited to traditional notions of abuse of process, such as bad faith and oppression. In this situation, some authorities have since favoured the narrower view: see, for example, Doyle v. Leroux (1981) RTR 438 , at p 443; (1981) Crim LR 631; Reg. v. Grays Justices; Ex parte Graham (1982) QB 1239 , at p 1247; Pattenden, "The Power of the Courts to Stay a Criminal Prosecution", (1985) Crim LR 175. But the Queen's Bench Division took a broader approach in Reg. v. Derby Crown Court; Ex parte Brooks (1984) 80 Cr App R 164, at pp 168-169.
The Supreme Court of Canada initially approved the view of Viscount Dilhorne in Humphrys. In Rourke v. The Queen (1978) 1 SCR 1021 , Pigeon J., for the majority, stated (at p 1043):
"I cannot find any rule in our criminal law that prosecutions must be instituted promptly and ought not to be permitted to be proceeded with if a delay in instituting them may have caused prejudice to the accused."
Subsequently the Supreme Court, with a view to clarifying uncertainties said to arise from the decision in Rourke, after referring to the view of Lord Devlin in Connelly, adopted a statement of the law in accordance with that view: Reg. v. Jewitt (1985) 2 SCR 128 , at pp 136-137.
Central to the narrow approach is the notion that, to use the words of Viscount Dilhorne (at p 26), the "judge must keep out of the arena". This view places weight upon the fact that the legislature has seen fit not to prescribe a general limitation period for the bringing of criminal prosecutions and emphasizes that the judge's role is not that of prosecutor; the decision whether to prosecute is made at an executive level. These arguments misconceive the nature of the broader discretion which they seek to resist. The question is not whether the prosecution should have been brought, but whether the court, whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves, should permit its processes to be employed in a manner which gives rise to unfairness. Such a question arises when proceedings have been set in train by the bringing of charges. It is a question for the judicial arm of government to address and, as such, mere silence on the part of the legislature cannot be taken as a command to the courts as to how it should be answered. Lord Devlin made the point in Connelly, at p 1354, in the passage quoted by the Supreme Court of Canada in Jewitt, as follows:
"Are the courts to rely on the Executive to protect their process from abuse? Have they not themselves an inescapable duty to secure fair treatment for those who come or are brought before them? To questions of this sort there is only one possible answer. The courts cannot contemplate for a moment the transference to the Executive of the responsibility for seeing that the process of law is not abused."
The argument for the restrictive approach goes further and claims that the discretion contended for will produce aberrant results and detract from uniformity in the administration of justice. But that is to equate the process of balancing the relevant factors in the exercise of a judicial discretion to the making of capricious and arbitrary decisions. It is artificial to claim that the exercise of judicial discretion in this area, unlike other areas in which judges are called upon to exercise discretions, will result in unprincipled decision-making and, in consequence, unsatisfactory results for the administration of justice.
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) 141 CLR 54 ; Reg. v. Sang (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.
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.
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.
Ultimately, it does not matter whether the problem is resolved in this way, by invoking a wide interpretation of the concept of abuse of process, or by saying that courts possess an inherent power to prevent their processes being used in a manner which gives rise to injustice. In either event the power is discretionary, to be exercised in a principled way, and the same considerations will govern its exercise. And in each case the power will be used only in most exceptional circumstances to order that a criminal prosecution be stayed. I have already noted that a similar result was reached by taking a broad view of the concept of abuse of process in Reg. v. Derby Crown Court; Ex parte Brooks. If the distinction matters, I would prefer to regard the power as an incident of the general power of a court of justice to ensure fairness.
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.
In the context of undue delay, the interests of the accused in obtaining fairness are similar to, if not the same as, those which the right to a speedy trial contained in the United States Constitution is designed to protect. Those interests were identified by McHugh J.A. in Aboud v. Attorney-General (NSW) (1987) 10 NSWLR 671 , at p 692, as the following: (i) the prevention of oppressive pre-trial incarceration; (ii) the minimization of the anxiety and concern of the accused; (iii) the limiting of prejudice to the presentation of the accused's defence; and (iv) the protection of the reputation and social and economic interests of the accused from the damage which flows from a pending charge. See also Amsterdam, "Speedy Criminal Trial: Rights and Remedies", (1975) 27 Stanford Law Review 525, at pp 532-533. These interests are safeguarded in our system by a variety of means. Oppressive pre-trial incarceration may be prevented by the granting of bail. Anxiety and concern, to the extent that they reflect apprehensions of unfairness, may be alleviated by appropriate orders designed to ensure fairness in pre-trial procedures. The third interest mentioned is in reality one aspect of the comprehensive right to a fair trial. The fourth and final interest is not one which of itself should be recognized as a basis for judicial intervention except to the extent that it is encompassed by the second.
It is strictly unnecessary to consider what other remedies a person charged with a criminal offence may seek when confronted with unreasonable delay in pre-trial processes leading to the ultimate commencement of the trial. But some clarity may be achieved by doing so. In many cases, where the second interest referred to by McHugh J.A. in Aboud is sought to be protected, an order that the trial be expedited may be appropriate. In deciding whether to make such an order, a court will inevitably give consideration to a range of matters, apart from the mere existence of delay, including whether the conduct of the accused has contributed to the delay, whether the accused has pressed for expedition in a manner consistent with the anxiety and concern he is said to be suffering, whether court resources are available for an expedited trial and whether the displacement of other trials is warranted.
It would be unwise to venture upon an abstract consideration, divorced from the concrete facts in specific cases, of the circumstances in which it would be appropriate to order expedition rather than a stay or vice versa. But it is important to bear in mind that the court may mould its order to meet the exigencies of the particular case. The court may grant a limited or conditional stay and it might even order that a proceeding be stayed and not proceeded with without an order of the court: Reg. v. Campbell (1959) 2 All ER 557 ; (1959) 1 WLR 646 ; Reg. v. Roberts (1979) Crim LR 44. Naturally an early charge may still be justified where there is reason to believe that the person charged may escape the jurisdiction or commit further crimes. And there is some support for the view that the rule against double jeopardy would not prevent the bringing of charges previously brought but dismissed, at least prior to trial, pursuant to an order expressed to be without prejudice to their being brought again: see Broome v. Chenoweth (1946) 73 CLR 583 , at p 599; Reg. v. Charlesworth (1861) 1 B. & S. 460, at pp 507-508 ( 121 ER 786 , at p 804). See also Land v. Land (1949) P 405 , at p 418; R. v. Norfolk Justices; Ex parte Director of Public Prosecutions (1950) 2 KB 558 , at p 568; Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes (1954) 1 QB 1 , at p 7; Reg. v. Elia (1968) 2 All ER 587 , at pp 590-592; but cf. Ryley v. Brown (1890) 17 Cox CC 79; Great Southern and Western Rly. Co. v. Gooding (1908) 2 IR 429 ; Owens v. Minoprio (1942) 1 KB 193 , at pp 197-198; and contrast the United States position as stated in Green v. United States (1957) 355 US 184 , at p 188, and Downum v. United States (1963) 372 US 734 .
In the safeguarding of the interests of the accused in the manner I have described, the touchstone in every case is fairness. As appears from Toohey J.'s reasons for judgment and the majority judgments in the Court of Appeal, the Australian common law does not recognize the existence of a special right to a speedy trial, or to trial within a reasonable time, which relies for its operation not upon actual prejudice or unfairness but upon a concept of presumptive prejudice. Because there is no constitutional guarantee of a speedy trial, the remedies are discretionary and necessarily relate to the harm suffered or likely to be suffered if appropriate orders are not made.
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) 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.
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.