Jago v District Court (NSW)

168 CLR 23
87 ALR 577

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(Judgment by: Deane J) Court:

Judges: Mason CJ
Brennan J

Deane JToohey J
Gaudron J

Judgment date: 12 October 1989

Canberra

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Judgment by:
Deane J

In a case where an allegation of serious crime is involved, the burden of criminal proceedings first falls upon an accused at the time when they are threatened. It is intensified when the proceedings are commenced and personal liberty is either destroyed by imprisonment or compromised by the restraints involved in release upon bail. In Mills v. The Queen (1986) 1 SCR. 863, at pp 919-920, Lamer J. identified some of the other "vexations and vicissitudes" of pending criminal proceedings, namely, "stigmatization of the accused, loss of privacy, stress and anxiety resulting from a multitude of factors, including possible disruption of family, social life and work, legal costs, uncertainty as to the outcome and sanction". If none but the guilty were accused of crime, the harshness of the burden would be alleviated by the consideration that the accused had brought it upon himself by his criminal conduct and subsequent denial of guilt and by the fact that account could be taken of pre-trial incarceration in the ultimate sentencing process. In truth, of course, the innocent as well as the guilty are accused of crime and the notions of fairness and decency which sustain our society dictate that an accused is presumed to be innocent unless and until he is convicted. For a person who is innocent of wrong-doing, the burden involves undeserved mental, social and often financial damage. And that damage will not be erased by ultimate acquittal. Life may be resumed but the mental, social and financial scars will ordinarily endure.

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.

Once a court is seised of criminal proceedings, it has control of them. In the absence of applicable express statutory provision, that control includes the power - either inherent or implied - to ensure that the court's process is not abused by the proceedings being made an instrument of unfair oppression (see Connelly v. D.P.P. (1964) AC 1254 , at p 1347; Reg. v. Humphreys (1977) AC 1 , at pp 45-46, 52-55, and cf. Barton v. The Queen (1980) 147 CLR 75 , at pp 96-97, 104, 107 and 111). The accused in such proceedings is entitled to invoke that power if he is being subjected to unreasonable delay in bringing on the trial. The appropriate relief in such a case will vary according to the circumstances. It may be an order that the matter be adjourned for a period within which the prosecution is required to supply particulars and become ready for trial. If the accused is in custody, it may be an order that he be released on bail. It may be an order that the trial be brought on for hearing. There could be circumstances in which the effect of unreasonable delay is that any subsequent trial of the accused will necessarily be an unfair one. In such a case, an order that the trial be brought on would be inadequate and inappropriate.

The central prescript of our criminal law is that no person shall be convicted of crime otherwise than after a fair trial according to law. A conviction cannot stand if irregularity or prejudicial occurrence has permeated or affected proceedings to an extent that the overall trial has been rendered unfair or has lost its character as a trial according to law. As a matter of ordinary language, it is customary to refer in compendious terms to an accused's "right to a fair trial". I shall, on occasion, do so in this judgment. Strictly speaking, however, there is no such directly enforceable "right" since no person has the right to insist upon being prosecuted or tried by the State. What is involved is more accurately expressed in negative terms as a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.

The general notion of fairness which has inspired much of the traditional criminal law of this country defies analytical definition. Nor is it possible to catalogue in the abstract the occurrences outside or within the actual trial which will or may affect the overall trial to an extent that it can no longer properly be regarded as a fair one. Putting to one side cases of actual or ostensible bias, the identification of what does and what does not remove the quality of fairness from an overall trial must proceed on a case by case basis and involve an undesirably, but unavoidably, large content of essentially intuitive judgment. The best that one can do is to formulate relevant general propositions and examples derived from past experience. Thus, it can be said, as a general proposition, that default or impropriety on the part of the prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence. Another is where impropriety on the part of the prosecution has concealed from an accused important evidence which would have assisted him in his defence. In each of those examples, the effect of the default or impropriety could ordinarily be dealt with by orders (e.g. adjournment, further particulars or new trial) which will avoid unfairness in a subsequent trial or retrial. It is, however, possible to formulate examples of cases in which the effect of default or impropriety on the part of the prosecution would necessarily be that any subsequent trial was unfair to the accused. Thus, one can envisage circumstances in which calculated and unreasonable delay on the part of the prosecution in bringing proceedings to trial had so unfairly and permanently prejudiced the ability of an accused to defend himself that no subsequent trial could be a fair one.

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."

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.

Much of the argument on the appeal to this Court was directed to the question whether the common law recognizes a "right to a speedy trial" which is independent of the "right" to a fair trial. Obviously, the common law recognizes no such "right" in the strict sense since, as has been mentioned, no person has the "right" to insist upon being prosecuted or tried by the State, whether speedily or slowly or at all. The phrase "right to a speedy trial" is however commonly used in much the same way as the phrase "the right to a fair trial", that is to say, as descriptive of a suggested right not to be subjected to unreasonable delay before trial and of a suggested immunity from conviction on a trial that has been unreasonably delayed. As such, and subject to one qualification, it seems to me to be a convenient one as a matter of language. The qualification is that, notwithstanding their long and eminent history, the words "speedy trial" seem to me to be inappropriate in a modern context where criminal processes are necessarily more measured than they were in earlier times. I would prefer to substitute for the phrase "right to a speedy trial" the phrase "right to be tried without unreasonable delay". I turn to the question whether any such independent "right" exists.

The various arguments militating for and against the recognition of such a distinct and independent traditional right under the law of this country and the relevant authorities and historical considerations are carefully examined in judgments in the New South Wales Court of Appeal in the present and earlier cases (see, in particular, Herron v. McGregor (1986) 6 NSWLR 246 and Aboud v. Attorney-General (NSW) (1987) 10 NSWLR 671 ), in the judgments of other State courts (see, in particular, Reg. v. Clarkson (1987) VR 962 ; Kintominas v. Attorney-General (NSW) (1987) 24 A Crim R 456) and in judgments of other members of the Court on this appeal. It is unnecessary that I recanvass what is said in those judgments. It suffices that I acknowledge my indebtedness to them.

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.

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.

In his judgment in the present case, Kirby P. identified five main heads of relevant circumstances and considerations to which a court should advert in deciding whether proceedings should be stayed on the ground that the effect of delay on the part of the prosecution is that any trial will necessarily be an unfair one in all the circumstances. As his Honour indicated, the first four of them can be traced to the opinion of the Supreme Court of the United States (delivered by Powell J.) in Barker v. Wingo (1972) 407 US 514 (see also United States v. Von Neumann (1986) 474 US 242 ; Bell v. D.P.P. (1985) AC 937 , at pp 951-952; Herron v. McGregor, at p 252; Reg. v. Clarkson, at p 968; Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685 , at pp 697-698). I would slightly adapt them to read: (i) the length of the delay; (ii) reasons given by the prosecution to explain or justify the delay; (iii) the accused's responsibility for and past attitude to the delay; and, (iv) proven or likely prejudice to the accused. The fifth is the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime (see Reg. v. Clarkson, at p 972; Carver v. Attorney-General (NSW) (1987) 29 A Crim R 24, at p 32). Those five "heads" provide convenient reference points for answering the question whether the effect of a delay in a particular case is such as to bring about a situation where any trial will necessarily be an unfair one from the accused's point of view or a situation where the continuation of proceedings would be so unfairly oppressive that it would constitute an abuse of process. They should not, however, be treated as a code or permitted to divert attention from the fact that what will ordinarily be involved in answering that question is the formation of a value judgment in the context of the nature and seriousness of the alleged offence and having regard to all other relevant circumstances. Consideration of heads (i) (length of the delay) and (ii) (prosecution's explanation) will involve account being taken of the time when relevant material was first known to the authorities and whether the charge is a complex or simple one. It will also involve consideration of what is reasonable in the context of the limitations of institutional resources (cf. Mills v. The Queen, at pp 924-925; Aboud v. Attorney-General (NSW), at pp 683-684). Consideration of head (iv) (prejudice to the accused) will involve account being taken of the availability of other discretionary powers to mitigate the effects of delay. Consideration of head (v) (public interest) will require that account be taken of the fact that the primary responsibility for determining whether criminal proceedings should be maintained lies with the executive and not with the courts (see the judgment of Gaudron J. on this appeal).

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.

I would dismiss the appeal.