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[1989] HCA 46
respondent. Appeal dismissed.
No linked legislation citations have been extracted yet.
The High Court decided that Australian law does not give someone a standalone right to a fast trial. If the prosecution is slow, a judge can stop the case permanently only if the delay makes a fair trial impossible or seriously abuses the court system in a way that cannot be fixed. Jago faced fraud charges from the late 1970s. Although there was a long unexplained delay before his 1987 trial date, he could not prove any concrete harm that would prevent a fair hearing, especially since the case relied on bank records and cheques rather than faded memories. The Court said judges must balance the accused's need for fairness against the public's interest in trying serious crime. Because the delay did not create irremediable unfairness, the appeal was dismissed and the trial could proceed.
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The appellant, Mr Jago, faced thirty counts under s. 173 of the Crimes Act 1900 (NSW) alleging that, as a director of Manning Insurance Services Pty Ltd, he fraudulently applied company property to an improper use. The conduct was said to have occurred between April 1976 and January 1979. On 6 February 1980 he was examined compulsorily under s. 249 of the Companies Act 1961 (NSW). Interviews were conducted and recorded, probably in 1981. He was arrested and charged on 19 October 1981. On 16 July 1982 he was committed for trial on ninety-two charges. The matter was not listed in the District Court until 27 June 1986. A hearing date was fixed for the week commencing 9 February 1987. On 13 February 1987 an indictment containing the thirty counts was presented. Mr Jago immediately applied for a permanent stay, arguing that the lapse of time between committal and listing constituted an abuse of process and prejudiced his right to a fair trial.
Judge Thorley refused the stay. He found that there had been an inordinate delay between committal in July 1982 and the matter being put into the list in June 1986, but on balance the order should not be made. An appeal to the New South Wales Court of Appeal was dismissed by majority (Kirby P. and Samuels J.A., McHugh J.A. dissenting). Special leave was granted to appeal to the High Court. The High Court (Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.) unanimously dismissed the appeal. All members of the Court held that the common law does not recognise a right to a speedy trial independent of the right to a fair trial. They further held that a permanent stay is an extreme remedy available only where delay has produced a fundamental defect that cannot be cured by any order a trial judge could make, or where continuation would be so oppressive as to constitute an abuse of process. On the facts, no such defect or oppression was shown. The appellant had lost no witnesses, claimed no special prejudice, and the Crown case was essentially documentary. He had acquiesced in much of the delay. The Court emphasised that the community's interest in bringing serious charges to trial must be weighed in the balance. Accordingly the prosecution could proceed.
The Court began from the inherent power of superior courts to prevent abuse of their own process, a power recognised in Clyne v NSW Bar Association and Barton v The Queen. Mason C.J. noted that this power includes the ability to take appropriate action to prevent injustice, although the content of "injustice" differs between civil and criminal contexts. The judgments surveyed authority from the House of Lords in Connelly v Director of Public Prosecutions and R v Humphrys, the Supreme Court of Canada in Rourke v The Queen and R v Jewitt, and the New Zealand Court of Appeal in Moevao v Department of Labour. Mason C.J. expressly agreed with Richardson J. in Moevao that the power is derived from two aspects of the public interest: that trials are conducted fairly and that persons charged are tried without unreasonable delay. However, fairness to the accused is not the sole criterion; the focus remains on misuse of court process by those responsible for law enforcement.
Brennan J. stressed the constitutional division between the executive's unreviewable decision to prosecute and the judiciary's duty to hear and determine a regularly presented indictment. He rejected the notion that a judge could refuse to try a case merely because he regretted that it was taking place. Deane J. accepted that unreasonable delay can reach a point where continuation becomes so unfairly oppressive as to be an abuse of process, but emphasised that the central prescript is that no person shall be convicted otherwise than after a fair trial according to law. Toohey J. examined the historical claim that Magna Carta recognised a right to speedy trial and concluded, agreeing with Samuels J.A. in the Court of Appeal, that no such independent right existed at common law. Gaudron J. framed the question as whether the administration of justice demanded a permanent stay; she held that the power exists but is exercisable only exceptionally and not on the basis of "presumptive prejudice" or mere lapse of time.
All members performed the balancing exercise identified by Mason C.J.: length of delay, reasons for it, the accused's responsibility for asserting his rights, and prejudice suffered. The delay was accepted as inordinate and, for part of the period, unexplained. Yet the appellant had not demonstrated that any trial would necessarily be unfair. No witnesses had died, the case turned on cheque butts and bank records, and any anxiety or reputational harm could be addressed by expedition or directions. A permanent stay was therefore not justified. The appeal was dismissed because the appellant had failed to show a fundamental defect going to the root of the trial within the Barton formulation adopted by Wilson J.
Before Jago the law was unsettled. Barton v The Queen had left open whether the power to prevent abuse of process extended to preventing unfairness generally. Lower courts in New South Wales, Victoria and South Australia had granted or contemplated stays for undue delay, relying on Herron v McGregor, R v Clarkson, Watson v Attorney-General (NSW) and Cooke v Purcell. English authority was divided: Connelly and Humphrys contained speeches supporting both a broad power to prevent unfairness (Lord Devlin, Lord Pearce, Lord Salmon) and a narrower view limited to traditional abuse (Viscount Dilhorne, Lord Hodson). Canadian law had moved from the narrow Rourke position to the broader Jewitt formulation. New Zealand's Moevao had adopted a wide view of abuse of process protective of public confidence in the administration of justice.
The Jago Court resolved the Australian position by rejecting an independent right to speedy trial derived from Magna Carta or the common law. Toohey and Brennan JJ. demonstrated that neither the Assize of Clarendon nor c. 29 of Magna Carta (preserved by the Imperial Acts Application Act 1969 (NSW)) created or evidenced such a right. The remedy of permanent stay was confined to extreme cases of irremediable unfairness or oppressive misuse of process. Delay alone, even inordinate delay, would rarely justify a stay; the touchstone remained fairness assessed by a balancing process that included the community's interest in trials for serious crime. Orders short of a stay, such as expedition or bail, were available to protect the accused's interests. The decision therefore narrowed the circumstances in which a stay could be granted while confirming the existence of a discretionary power to prevent injustice caused by undue delay.
After Jago the law is clearer: presumptive prejudice from delay is insufficient. An accused must ordinarily point to actual prejudice that cannot be cured by evidentiary rulings, jury directions or other interlocutory orders. The high threshold ("extreme case", "fundamental defect", "necessarily unfair") has become the governing test. The judgments also clarified that the District Court’s jurisdiction arises on presentation of an indictment and does not extend to preventing its presentation. The decision has therefore stabilised the doctrine by tying all remedies for delay to the overriding requirement of a fair trial according to law and the avoidance of abuse of process.
Mason C.J. stated: "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." In plain English this means the system is not only about convicting the guilty; it must also protect the fairness and integrity of the court's own processes. If continuing a prosecution would undermine public confidence or produce oppression, the court can intervene.
He continued: "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." Translation: A stay is not granted simply because the delay feels unfair to the accused. The court asks whether those responsible for law enforcement are misusing the system in a way that is inconsistent with the proper administration of criminal justice.
On the test for a stay: "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'." Plain English: Only if the problem is so deep that no rulings, directions or procedural orders at trial can fix the unfairness will a permanent stay be granted. Mere prejudice that can be mitigated is not enough.
Brennan J. observed: "A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution." Translation: Judges decide guilt or innocence once a charge is properly before them; they do not second-guess the executive's decision to prosecute or refuse to try a case merely because they think it has taken too long.
Deane J. said: "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." Translation: Everything in the criminal process is ultimately measured against whether the trial will be fair. If delay makes fairness impossible, the court can stop the case; otherwise it must allow the trial to occur.
Gaudron J. concluded: "the power to grant a permanent stay of criminal proceedings is not to be exercised on the basis of an opinion that an indictment should not have been presented." Translation: Courts cannot grant a stay simply because they think the prosecution has been brought too late; they can act only when the continuation itself would make the process unfair or abusive in a way that cannot be cured.
Jago is triggered when an accused seeks a permanent stay on the ground of delay between charge or committal and trial. The precedent applies where the delay is inordinate, the reasons for it are unpersuasive, and the accused has not contributed significantly to the delay. However, the case makes clear that delay alone is not enough. The fact pattern must also show either (a) actual prejudice that cannot be cured by any order a trial judge could make (for example, death of a critical witness whose evidence cannot be replaced, or destruction of documentary evidence central to the defence), or (b) a situation in which continuation would be so unfairly oppressive as to constitute an abuse of process (for example, multiple renewed charges years after earlier proceedings were dismissed for want of prosecution, where the material had always been available).
The balancing factors listed by Mason C.J. (length of delay, reasons for it, the accused's assertion of rights, prejudice suffered) must be weighed against the community's interest in the disposition of serious charges. Where the Crown case depends on objective documentary evidence rather than contested oral testimony, the precedent is less likely to result in a stay. Acquiescence by the accused in the delay, or failure to press for expedition while complaining of anxiety, weighs against relief. Conversely, oppressive pre-trial incarceration, deliberate prosecutorial tactics to gain advantage, or loss of evidence that goes to the root of the defence are classic triggers. The precedent also applies to applications for lesser remedies such as expedition or variation of bail conditions where a stay is not justified.
The judgment itself records how earlier courts had treated the underlying principles. The House of Lords in Connelly and Humphrys was divided, with the broader view of Lords Devlin, Pearce, Salmon and Edmund-Davies ultimately preferred in subsequent English decisions such as R v Derby Crown Court; Ex parte Brooks. The Supreme Court of Canada moved from the narrow approach in Rourke to the wider view in Jewitt after referring to Lord Devlin. The New Zealand Court of Appeal in Moevao was treated as persuasive; Mason C.J. expressly agreed with Richardson J.'s explanation that the power protects the court's ability to function as a court of law and maintains public confidence. Lower Australian courts had already applied a broad power to stay for undue delay (Herron v McGregor, R v Clarkson, Watson v Attorney-General (NSW)). Jago endorsed the existence of the power but confined its exercise to exceptional cases, thereby moderating the enthusiasm evident in some State decisions.
The judgment notes that applications for permanent stays had become commonplace in New South Wales and that interlocutory appeals against refusals compounded delay. It therefore implicitly cautions against overuse of the stay remedy. Brennan J. disapproved of the "pre-trial jurisdiction" asserted by Priestley J.A. in Watson to intervene before indictment. The unanimous rejection of an independent speedy trial right resolved the debate that had divided the New South Wales Court of Appeal in Herron and Aboud. Subsequent references in the judgment to Barker v Wingo and Bell v Director of Public Prosecutions indicate that the balancing test derived from those authorities is to be applied, but without importing a constitutional presumption of prejudice. The decision therefore operates as both an endorsement of the abuse-of-process power and a restraint on its deployment.
Mason C.J. expressly left open the broader question whether the power to prevent abuse of process extends to a power to prevent unfairness generally, outside the context of undue delay. That issue remains undecided. The precise boundary between a curable defect in pre-trial procedures and an irremediable unfairness that justifies a permanent stay is not exhaustively defined; the judgment states that the factors "cannot be precisely defined in a way which will cover every case". Brennan J. left open the full extent of the District Court's power under its rules to stay an indictment after presentation, while firmly denying any power to prevent presentation. The interaction between the Habeas Corpus Act 1679 (Imp) (still in force in New South Wales) and modern statutory listing regimes also received only passing mention.
Gaudron J. noted that the power to grant a permanent stay is discretionary and must be exercised in the light of the prima facie right of the prosecution to have the indictment tried. The weight to be given to resource constraints upon prosecuting authorities, and whether deliberate tactical delay would justify a stay or only a direction nullifying the advantage, are not finally settled. Deane J. observed that the phrase "right to a speedy trial" may no longer be apt in modern conditions and preferred "right to be tried without unreasonable delay"; the exact content of that entitlement outside the extreme cases identified remains to be worked out. Finally, the judgments leave untouched the question whether a stay granted without prejudice to re-commencement would engage the rule against double jeopardy, although historical authority is cited on both sides. These matters await further litigation.
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 [40] :
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 recognized 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. 1. [1980] 1 N.Z.L.R., at p. 482.
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 [41] . 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 (N.S.W.) [42] 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, Stanford Law Review, vol. 27 (1975) 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 [43] ; Reg. v. Roberts [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: seeBroome v. Chenoweth [45] ; Reg. v. Charlesworth [46] . See also Land v. Land [47] ; R. v. Norfolk Justices; Ex parte Director of Public Prosecutions [48] ; Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes [49] ; Reg. v. Elia [50] ; but cf. Ryley v. Brown [51] ; Great Southern and Western Rly. Co. v. Gooding [52] ; Owens v. Minoprio [53] ; and contrast the United States position as stated in Green v. United States [54] , and Downum v. United States [55] .
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 [56] ; Sang [57] ; Carver v. Attorney-General (N.S.W.) [58] . 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 [59] ; Bell v. Director of Public Prosecutions [60] , as explained in Watson [61] , and Gorman v. Fitzpatrick [62] . 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 [63] .
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 [64] , 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 [65] . 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.
The appellant has been charged under s. 173 of the Crimes Act 1900 N.S.W. on thirty 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 N.S.W.. Some time later (probably in 1981) interviews relevant to these charges (and eight or nine 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 ninety-two 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 thirty 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.
Applications for a permanent stay have evidently become commonplace in New South Wales. There, the criminal courts have been "flooded with applications" according to Mr. Byrne in the Australian Law Journal, vol. 62 (1988), p. 160. Judge Thorley observed that, in (then) recent times, such applications had become "quite a popular way of exploring whether or not the prosecution against a particular accused can be frustrated". And Kirby P. commenced his judgment with the observation: "Another application for a permanent stay of criminal proceedings in the District Court is before this Court." Interlocutory appeals against the refusal of a stay have again proved to be, as such appeals often are, an effective counter to the due administration of criminal justice, compounding the delays which occur before the case reaches the court of trial.
The source of the jurisdiction of the District Court to grant a stay was not the subject of close examination either by Judge Thorley or by the members of the Court of Appeal. Yet the power of the District Court to grant a stay must be supported, if at all, by the jurisdiction statutorily vested in that Court.
The general criminal jurisdiction of the District Court is the jurisdiction which each Court of Quarter Sessions had before the District Court Act 1973 N.S.W. commenced: see s. 166, now s. 166(2). The jurisdiction of a Court of Quarter Sessions was established originally by commission to "hear and determine" crimes and offences: Stephen, A History of the Criminal Law of England, vol. 1, p. 114. That jurisdiction, affected as to subject matter by a series of statutes - some offences are statutorily removed from the cognizance of the District Court - was the jurisdiction vested in the Courts of Quarter Sessions in New South Wales created pursuant to The Australian Courts Act 1828 Imp. (9 Geo. IV c. 83), s. 17 and that jurisdiction was continued in the Courts of Quarter Sessions preserved by the Act for instituting and regulating Courts of General and Quarter Sessions in New South Wales 1829 N.S.W. (10 Geo. IV No. 7) and the Crimes Act 1900 N.S.W., s. 568 (to be read in conjunction with the Criminal Law Amendment Act 1883 N.S.W. (46 Vic. No. 17), s. 459) until repealed by the District Court Act. An indictment, being the foundation of the record of criminal proceedings (Stephen, op. cit., vol. 1, p. 274), enlivens the jurisdiction of the District Court to hear and determine the offence therein charged.
Absent any special statutory investiture, the District Court has no jurisdiction in a criminal matter prior to the presentation of an indictment. The steps leading up to the presentation of an indictment in the District Court are entrusted by statute to officers of the executive branch of government. Before 1986, a person appointed by the Governor in that behalf was authorized to prosecute offences cognizable in the District Court: Crimes Act, s. 572. In that year, a Director of Public Prosecutions was empowered, inter alia, to find a bill of indictment and to carry on or to institute and conduct prosecutions in the District Court: Director of Public Prosecutions Act 1986 N.S.W., Pt 3. The power to "find a bill of indictment" is no doubt intended to be the equivalent of the power of a grand jury to find and endorse "a true bill" on a bill of indictment which, being handed to the proper officer in court, becomes an indictment: see Stephen, op cit, vol. 1, p. 274. The power to find a true bill thus comprehends a power to sign or to authorize the signature of an instrument in the form of an indictment so that, on its presentation to the Court, an indictment is validly presented. A Crown prosecutor or a person authorized by the Director of Public Prosecutions is now empowered to sign indictments: Criminal Procedure Act 1986 N.S.W., s. 15.
Although the jurisdiction of the District Court to hear and determine an offence depends on the regular presentation of an indictment, provision was made for the "listing" of "criminal proceedings" before the District Court whether or not an indictment has been presented: Criminal Procedure Act, Pt 3 and reg. 7 of the Criminal Procedure Regulation 1987. The purpose of these provisions is obscure. The term "criminal proceedings" is defined, so far as is relevant, to mean proceedings "relating to" the trial or sentencing of a person (s. 7), but neither the Act nor any cognate legislation invests the District Court with jurisdiction to do more than to try a person against whom an indictment has been regularly presented and to sentence him on conviction. Section 9 imposes on the Criminal Listing Director, a public servant (s. 7), the duty of arranging for a "matter" to be "listed for mention" before the Supreme Court or District Court if the prescribed period has passed since an accused person was committed for trial "without the matter having been (a) brought before the Supreme Court or the District Court in relation to the matter; or (b) terminated". Presumably a "listing" under s. 9 is intended to give some publicity to delay and to give the Court an opportunity to inquire into the reasons for delay. But nothing in Pt 3 relating to the Criminal Listing Director affects the power of a court to regulate proceedings before it: s. 12(2)(b). The Criminal Procedure Act confers no power on the District Court to regulate any aspect of the exercise of the powers of prosecution before an indictment is presented or to control the presentation of indictments or to review a refusal to find a true bill.
For the sake of completeness, reference should be made to the rule-making power contained in the District Court Act which includes power to provide for "all procedural matters relating to or incidental to the indictment and arraignment of an accused person, including motions to quash or stay indictments": s. 171(2)(f), inserted by the District Court (Procedure) Amendment Act 1984 N.S.W., Sched. 4. The rule-making power was exercised by the enactment of Pt 53 of the District Court Rules entitled "Criminal Procedure Rules" which, in their original form, first became effective in September 1987 (after the decision by Judge Thorley in this case). Rule 10 purports to create, or at least to recognize, the power of the Court to make an order to quash or stay an indictment "before the day appointed for the hearing of the proceedings". If this rule were construed as empowering the court to prevent the presentation of an indictment duly signed, it would be beyond power, for neither the rule-making power nor the rules in Pt 53 could confer a wider jurisdiction on the District Court than the Court possesses, that is, a jurisdiction to hear and determine a matter in which an indictment has been presented. But r. 10 can and should be construed as relating to the Court's power, presently to be examined, to quash or stay an indictment which has been presented, and "the day appointed for the hearing of the proceedings" can and should be construed as a day on which proceedings on the indictment will be heard.
In Watson v. Attorney-General (N.S.W.) [66] , Priestley J.A. (with the concurrence of Street C.J. and Hope J.A.) claimed for the District Court a power to intervene to prevent the presentation of an indictment, the "pre-trial jurisdiction" (as his Honour called it) being "exercisable in respect of existing charges which will if tried be heard in the Court" [67] . With respect, I am bound to say that neither the proposition advanced by Priestley J.A. nor the source of the power claimed for the District Court prior to indictment is self-evident. A jurisdiction to intervene in the process of signing and presenting an indictment would be a radical innovation, for it would involve an interference with the function of the Law Officers of the Crown or of the Director of Public Prosecutions under statute to decide whether to proceed with a prosecution.
In Reg. v. Humphrys [68] , Viscount Dilhorne said in reference to a supposed judicial power to intervene in the institution of a prosecution:
A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution. The functions of prosecutors and of judges must not be blurred. If a judge has power to decline to hear a case because he does not think it should be brought, then it soon may be thought that the cases he allows to proceed are cases brought with his consent or approval. And in Barton v. The Queen [69] , Gibbs A.C.J. and Mason J. said: It has generally been considered to be undesirable that the court, whose ultimate function it is to determine the accused's guilt or innocence, should become too closely involved in the question whether a prosecution should be commenced though it may be that in exercising its power to prevent an abuse of process the court will on rare occasions be required to consider whether a prosecution should be permitted to continue. In my opinion, the District Court has no jurisdiction to prevent the presentation of an indictment. 1. [1977] A.C. 1, at p. 26. 2. (1980) 147 C.L.R. 75, at pp. 94-95.
If that be right, the question remains whether it can refuse to try a case after the indictment is presented. The duty of a court at common law was expounded by Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes [70] :
Once a presentment was made, so that the bill became an indictment, the court had to try it unless the alleged offence was unknown to the law or was imperfectly set out so that it would have been bad on error, or unless matter in bar was alleged by plea, in which case the plea in bar had, and still has, to be tried. Objection to the matter or form of the indictment could be taken by motion to quash, or less usually by demurrer. The only question then was whether the indictment was good in substance and form, and not whether the evidence which had been before the grand jury would support it. The statutory provisions considered in that case which relate to the effect of committal for trial were different from the New South Wales provisions (as Dawson J. has demonstrated in Grassby v. The Queen [71] ), but in principle Lord Goddard's statement of the court's duty to try a case is of general application subject to a qualification presently to be mentioned. His Lordship stated the duty to try in these terms [72] : Once an indictment is before the court the accused must be arraigned and tried thereon unless (a) on motion to quash or demurrer pleaded it is held defective in substance or form and not amended; (b) matter in bar is pleaded and the plea is tried or confirmed in favour of the accused; (c) a nolle prosequi is entered by the Attorney-General, which cannot be done before the indictment is found; or (d) if the indictment disclosed an offence which a particular court has no jurisdiction to try, for example, an indictment at sessions for an offence punishable with imprisonment for life in the first instance. Lord Goddard's exceptions to the duty to try do not admit of the qualification, acknowledged in Barton , that courts of criminal jurisdiction have power to prevent an abuse of process. To that extent, the exceptions are too narrowly stated. I shall return to the qualification but, for the moment, it should be noted that Barton reaffirms the clear division between the executive power to present an indictment and the judicial power to hear and determine proceedings founded on the indictment. That division is of great constitutional importance. It ensures that the function of bringing alleged offenders to justice is reposed entirely in the hands of the executive branch of government who must answer politically for the decisions which they make - not only decisions to prosecute in particular cases but decisions relating to the commitment of resources to the detection, investigation and prosecution of crime generally. These are decisions which courts are ill-equipped to make and, so far as they relate to the commitment of resources, powerless to enforce. The division of powers in the administration of the criminal law between the executive and judicial branches of government also ensures that the courts do not become concerned by matters extraneous to the fair determination of the issues arising on the indictment and are thus left free to hear and determine charges of criminal offences impartially. 1. [1954] 1 Q.B. 1, at p. 5. 2. Ante, p. 1. 3. [1954] 1 Q.B., at p. 6.
Historically, the only powers which the courts have exercised prior to presentation of an indictment to protect an accused from unacceptable delay have been powers designed to ensure that the period spent by an accused in pre-trial custody is not excessive. The commissions of gaol delivery, which Stephen (op. cit., vol. 1, p. 105) says "are probably as ancient as the gaols themselves, and as the local administration of justice by royal officers", directed the justices of gaol delivery to try every one found in the prison which was to be delivered. The commissions of gaol delivery thus secured the periodic disposition of persons held in custody awaiting trial. Until 1679 there was no other machinery by which a person charged with an indictable offence might secure expedition of his trial, although the justices of oyer and terminer inquired into, heard and determined charges awaiting trial on indictment and were thus instrumental in avoiding delay in the trial of indictable offences: see Stephen, op. cit., vol. 1, pp. 106-107. In 1679 the Habeas Corpus Act (31 Car. II c. 2) contained a provision (s. 6 in the print of the Statutes of the Realm) which was calculated to ensure that those who were held in custody awaiting trial on charges of high treason or felony should be brought to trial without inordinate delay. Section 6 required the Court of King's Bench or justices of oyer and terminer or general gaol delivery to whom a prisoner made application to be brought to trial should, if the prisoner were not indicted during the next session, bail him and, if not indicted during the following session, discharge him. This provision remains in force in New South Wales (Imperial Acts Application Act 1969 N.S.W., s. 6, Pt I of the 2nd Sched.) but its operation is, by its terms, restricted to cases of high treason and felony. In England, the jurisdiction of courts of oyer and terminer and general gaol delivery was superseded by the jurisdiction of courts of quarter sessions, but only in the context of provisions which entitled a person committed for trial at quarter sessions - in the absence of "special reasons" - to a speedy trial or discharge (Assizes Relief Act 1889 U.K.), that is, to relief similar to that available under the Habeas Corpus Act. The Criminal Codes have adopted the same principle, applying it to persons charged with any indictable offence (Criminal Code Q., s. 590; Criminal Code W.A., s. 608; Criminal Code Tas., s. 345), a reform which has not been copied in New South Wales.
In Herron v. McGregor [73] and in Aboud v. Attorney-General (N.S.W.) [74] , McHugh J.A. (as his Honour then was) concluded that Magna Charta recognized a common law right to a speedy trial. That conclusion was supported by the opinion of Warren C.J. in Klopfer v. North Carolina [75] . The same view was accepted by La Forest J. in Reg. v. Rahey [76] , who noted that the remedies to enforce the right were defective. The historical accuracy of the view that Magna Charta recognized a common law right to a speedy trial was challenged by Samuels J.A. in the present case. In my respectful view, the argument which his Honour mounted is correct. I respectfully agree with what Toohey J. has written on this aspect of the case.
If there be a common law right to a speedy trial, there must be a remedy available to enforce it. The remedy advanced is a permanent stay of proceedings on the indictment. That is a remedy tantamount to the refusal of jurisdiction to hear and determine the matter arising on the presentation of an indictment. Such a right would impose a discretionary time limit on the presentation of indictments. The rule of the common law that time did not run against the King ("nullum tempus occurrit regi") is inconsistent with the existence of such a right. Bacon's Abridgment asserts the established common law rule to be that the King's privilege is that "nullum tempus occurrit regi" (vol. 5, p. 562) and Chitty says that this has been a maxim of English law from the earliest periods (Prerogatives of the Crown, p. 379) a proposition which R. v. Berkley and Bragg [77] supports. Successive editions of Archbold, Criminal Pleading, Evidence and Practice have cited the maxim to establish that there is no time limit for the commencing of a prosecution unless statute so provides in particular cases: see, e.g., 32nd ed. (1949), p. 57; and the current edition: 43rd ed. (1988), vol. 1, p. 69, s. 1-85. The authority of Sir James Fitzjames Stephen (op. cit., vol. 2, pp. 1-2) and of Dr. Kenny (Outlines of Criminal Law, 19th ed. (1966), p. 547, par. 639) is opposed to the existence of a common law right to a speedy trial. Had there been a common law right to a speedy trial recognized by Magna Charta of such a kind that the court might enforce it by an order to stay the prosecution, the commissions of general gaol delivery would hardly have taken the form they did and s. 6 of the Habeas Corpus Act of 1679 might not have been necessary. The notion that time did not run against the King would not have gained acceptance. Had a common law right to a speedy trial been recognized, it is curious that there is no reported case of a stay having been granted on account of mere delay in the commencement of a prosecution.
In the Court of Appeal in this case, McHugh J.A. adhered to the theory of a common law right, pointing to the view taken by Coke that the "statute of Magna Charta is but a confirmation or restitution of the common law": Institutes , Bk. 2, Ch. 4, s. 108, p. 81a. His Honour held that whether Coke was historically accurate in this view or not, the views which Coke expressed were themselves a powerful influence in the development of the common law and can thus be taken as evidence of its content. If this be the measure of Coke's authority, we should examine his view about the promise of Magna Charta that: "We will sell to no man, we will not deny or defer to any man either justice or right." Coke's view is as Warren C.J. noted it in Klopfer [78] :
"Hereby it appeareth," Coke stated in the next paragraph, "that justice must have three qualities, it must be libera, quia nihil iniquius venali justitia; plena, quia justitia non debet claudicare; et celeris, quia dilatio est quaedam negatio; and then it is both justice and right." Later in the explication of Chapter 29, Coke wrote that in conformity with the promise not to delay justice, all of the King's "commissions of oier, and terminer, of gaole delivery, of the peace, &c. have this clause, facturi quod ad justitiam pertinet, secundum legem, and consuetudinem Angliae, that is, to doe justice and right, according to the rule of the law and custome of England " The passages referred to by Warren C.J. can be found in Institutes , pp. 55, 56. In these passages, Coke was describing the qualities of justice to which the courts aspire - free, full and speedy - but he did not assert the existence of a legal right giving effect to that aspiration. Coke did not claim for the courts a power to refuse to exercise their jurisdiction if, in the exercise of its powers, the Crown impaired the freedom, fulness or speed of administering criminal justice. The qualities of justice expected by Coke can and do affect the conduct by a court of its own process, but no Australian or English case has been reported, so far as my researches go, prior to the New South Wales cases referred to in which a supposed common law right to a speedy trial was litigated, much less any case in which the supposed right was held to exist. 1. (1967) 386 U.S., at pp. 224-225, fn. 14.
It may be that the reason why the supposed common law right was not litigated is that other means were adopted to deal with untoward delay in launching a prosecution. In Reg. v. John Robins [79] , Alderson B., said to the jury:
I ought not to allow this case to go further. It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man's life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial. His Lordship did not stay the prosecution; he "directed the jury to acquit the prisoner". The case was heard and determined. In these days when an accused can give evidence in his own defence, the report seems a rather extreme application of the eminently sensible observation by Lord Chelmsford in Cuno v. Cuno [80] , that: "delay will frequently have, as it ought to have, considerable influence upon the judgment which ought to be formed upon the evidence adduced." A contemporary judge would express that observation in an appropriate comment to the jury on the weakness of the prosecution case, but he would direct them to make their own estimate and express it by their verdict: Humphrys [81] . 1. (1844) 1 Cox C.C. 114. 2. (1873) L.R. 2 Sc. & Div. 300, at p. 302. 3. [1977] A.C., at p. 53.
If there were a common law right to a speedy trial enforceable by permanent stay, it would be incumbent on the court, without hearing the evidence at the trial, to form a view about the reasonableness of the time taken for the presentation of an indictment. Such an inquiry would encompass an examination of the level of resources made available by the executive government for the detection, investigation and prosecution of criminal offences and a critical review of their utilisation in the particular case. It would encompass the effect of delay upon the life and interests of the accused in the particular case. And it would end with an assessment of reasonableness from the viewpoint not only of the accused but of the public whose interests the enforcement of the criminal law is intended to protect and, especially, of any victim of the crime. The elements for consideration are so diffuse that they can hardly be the constituents of a common law right.
If a new common law right to a speedy trial were being devised, there would be much to be said for a right which attracted a remedy not to prevent a trial but to do what is just after the significance of the delay is assessed in the context of the evidence at the trial. That, of course, is really what the courts are accustomed to doing - especially by giving appropriate directions to the jury - in order to ensure a fair trial for an accused.
The judicial remedies available in the event of delay are limited by the powers vested in the courts. Ordinarily, those powers are limited to the regulation of proceedings which are commenced by the presentation of an indictment. In Bell v. Director of Public Prosecutions [82] , a case arising under the Constitution of Jamaica which contained an express right to a speedy trial, Lord Templeman [83] , speaking for the Privy Council, pointed to the remedies available under the common law:
Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica, applying the common law of England, was powerless to provide a remedy against unreasonable delay, nor do they accept the alternative submission that a remedy could only be granted if the accused proved some specific prejudice, such as the supervening death of a witness. Their Lordships consider that, in a proper case without positive proof of prejudice, the courts of Jamaica would and could have insisted on setting a date for trial and then, if necessary, dismissing the charges for want of prosecution. Again, in a proper case, the court could treat the renewal of charges after the lapse of a reasonable time as an abuse of the process of the court. His Lordship speaks here solely of remedies granted in the exercise of the jurisdiction arising on the presentation of the indictment: the power to set a date for trial, to dismiss for want of prosecution and to grant remedies appropriate for abuse of process. Delay in bringing a prosecution before a court for trial may be deplored, but the duty of the court before which an indictment is regularly presented is to exercise its jurisdiction to hear and determine the matter thus arising subject to its power to grant a remedy for abuse of process (the question to be examined when I return to Barton ). Except when there is an occasion for the exercise of that power, the court is bound to exercise its jurisdiction. 1. [1985] A.C. 937. 2. [1985] A.C., at p. 950.
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.
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.
The jurisdiction, invoked in the present case, to order a permanent stay is said to flow from the decision of this Court in Barton [84] where this Court ordered that proceedings on an indictment be stayed until committal proceedings on the charges contained in the indictment should be held. In Barton , no order for a permanent stay was made, and it is no authority for the grant of a permanent stay on the ground of delay in the commencement of the prosecution. Two issues were decided in that case. First, the Court held that the prerogative power of the Attorney-General to present a so-called ex officio indictment and the corresponding statutory power conferred on him by s. 5 of The Australian Courts Act were not amenable to judicial review. The next issue was whether the Court had power to stay proceedings on an ex officio indictment until committal proceedings were held. Gibbs A.C.J. and Mason J., with whom Stephen and Aickin JJ. agreed in this respect, said [85] :
It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless 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. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. Their Honours noted that this Court had not yet decided whether there is a judicial power to stay proceedings permanently when the proceedings are brought without reasonable grounds [86] : As a result of the speeches in Connelly v. Director of Public Prosecutions [87] and Director of Public Prosecutions v. Humphrys [1] , it is now established in the United Kingdom that although a judge has no power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought, the courts have a general power to prevent unfairness to the accused, even to the extent of preventing an abuse of process resulting from the prosecution of proceedings brought without reasonable grounds. See especially the speeches of Lord Reid, Lord Devlin and Lord Pearce in Connelly [2] , and the speeches of Lord Salmon and Lord Edmund-Davies in Humphrys [3] . The House of Lords has thereby affirmed the observation of Lord Parker C.J. in Mills v. Cooper [4] , "every court has undoubtedly a right in its discretion to decline to hear proceedings on the ground that they are oppressive and an abuse of the process of the court", and rejected the more restricted view of Lord Goddard C.J. in Reg. v. Chairman, County of London Quarter Sessions; Ex parte Downes [5] . The view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for damages for malicious prosecution has been emphatically rejected, as indeed it should be.
The High Court of Australia has not yet had to decide whether the power of the courts to prevent an abuse of process extends so far.
It was unnecessary to consider in Barton whether a power to stay proceedings went beyond "the grant of a stay of proceedings so as to permit a preliminary examination to take place" [6] or to consider the principles which might govern or affect the exercise of a power to stay absolutely. That question now arises.
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". [7] 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. Director of Public Prosecutions. 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. [8] :
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 [9] ), adverse revelations in a public inquiry (Victoria v. Australian Building Construction Employees' and Builders Labourers' Federation [10] ), absence of competent representation (McInnis v. The Queen [11] ; MacPherson v. The Queen [12] ), 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. 1. (1980) 147 C.L.R., at pp. 95-96. 2. (1943) 44 S.R. (N.S.W.) 71, at p. 76. 3. (1989) 167 C.L.R. 94. 4. (1982) 152 C.L.R. 25. 5. (1979) 143 C.L.R. 575. 6. (1981) 147 C.L.R. 512.
More radical remedies may be needed to prevent an abuse of process. An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve. The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment. When criminal process is used only for that purpose and is capable of serving that purpose, there is no abuse of process. Although it is not possible to state exhaustively all the categories of abuse of process, it will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him. When process is abused, the unfairness against which a litigant is entitled to protection is his subjection to process which is not intended to serve or which is not capable of serving its true purpose. But it cannot be said that a trial is not capable of serving its true purpose when some unfairness has been occasioned by circumstances outside the court's control unless it be said that an accused person's liability to conviction is discharged by such unfairness. That is a lofty aspiration but it is not the law. Connelly v. Director of Public Prosecutions [1] and Humphrys are cases where the court was required to decide whether, in the eye of the law, the purpose of criminal proceedings was to be served by prosecuting a person who had already been acquitted of an offence arising from the same incident (Connelly ) or by prosecuting a person for perjury in giving testimony in his own defence in a trial for an offence of which he was then acquitted (Humphrys ).
It may be that no very clear distinction between an obstacle to a fair trial and an abuse of process has been observed in New South Wales in recent times. Orders for a permanent stay have been sought in cases where the abuse of process relied on consists in no more than the carrying on of a prosecution after a delay which has caused some prejudice to an accused. It is understandable that, when one party to litigation appears to be prejudiced by the conduct of the other, the court would wish to grant a remedy and, if there be no remedy available, to create a new remedy to avoid the prejudice. In this way, new manifestations of injustice stimulate new growth in the law. In creating new remedies, there is a natural tendency to graft the novelty onto an established rule and to bring the principles governing the new remedy under an old rubric. That course of judicial innovation is facilitated when the old rubric is expressed in terms which defy exhaustive definition. "Abuse of process" is such a term. As remedies to suppress an abuse of process are designed to eliminate injustice, it seems a short step to say that the carrying on of proceedings amounts to an abuse of process when prejudice to one party is caused by delay on the part of the other. And if that amounts to an abuse of process, the remedy of permanent stay may seem to be appropriate.
In New South Wales especially and in some other parts of Australia, there have been serious delays in the administration of criminal justice. When serious delay is attributable to the prosecution and an accused has been prejudiced thereby, the courts are tempted to offer the remedy of a permanent stay. The remedy marks the court's disapproval of the failure of other branches of government to furnish the resources necessary to cope with an accumulation of criminal cases awaiting trial; it places pressure on government to provide and to use the resources needed; and it avoids the possibility that a person may be convicted after a trial in which he may suffer some prejudice in his defence. However understandable the granting of a permanent stay for delay causing prejudice might be, the remedy cannot be supported unless it would truly be an abuse of process to try the case. In determining what does amount to an abuse of process, the considerations which favour the expansion of that notion so that it will support the remedy of permanent stay for delay causing prejudice to an accused must be set against countervailing considerations which have particular force in the criminal jurisdiction. Before this Court sanctions such an expansion of the notion, it is appropriate to consider the need for such a radical discretionary power to refuse to try a criminal case and the effects of vesting such a power in a trial judge.
By the flexible use of the power to control procedure and by the giving of forthright directions to a jury, a judge can eliminate or virtually eliminate unfairness. The judge's responsibilities are heavy but they are not discharged by abdication of the court's duty to try the case. If it be said that judicial measures cannot always secure perfect justice to an accused, we should ask whether the ideal of perfect justice has not sounded in rhetoric rather than in law and whether the legal right of an accused, truly stated, is a right to a trial as fair as the courts can make it. Were it otherwise, trials would be prevented and convictions would be set aside when circumstances outside judicial control impair absolute fairness. To take an obvious example, the administration of the criminal law in notorious cases could be brought to a halt by adverse media publicity. To admit a power to stay a case permanently for delay causing prejudice seems wrongly to undervalue the efficacy of the orders, rulings and directions of a trial judge in removing unfairness to an accused caused by delay or other misconduct by the prosecution.
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 [2] :
I agree with [the trial judge] "that generally speaking a prosecutor has as much right as a defendant to demand a verdict of a jury on an outstanding indictment, and where either demands a verdict a judge has no jurisdiction to stand in the way of it." Indeed, under the English system of law criminal procedure has been conceived of as an action between a plaintiff and a defendant to be tried by a process substantially similar to that employed in any other action (see Holdsworth's History of English Law, Vol. 3, p. 622). It would, in my judgment, 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. There is no abuse of process if to a charge which is properly brought before the court and which is framed in an indictment to which no objection can in any way be taken there is no plea such as that of autrefois acquit or convict which can successfully be made. With these views, I am in substantial and respectful agreement. 1. [1964] A.C., at p. 1304.
Lord Devlin and Lord Pearce in Connelly entertained a wider view of abuse of process than did Lord Morris, but none of their Lordships gave the slightest indication - there was no occasion for them to do so - that the notion of abuse of process extended to the prosecution of a case against an accused for the first time on evidence sufficient to support a conviction. In Humphrys Lord Salmon, who expressed himself as being in entire agreement with everything said by Lord Devlin and Lord Pearce in Connelly with reference to the court's duty to protect its process from abuse and to protect the accused from oppression, said [3] :
I respectfully agree with my noble and learned friend, Viscount Dilhorne, that a judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene. Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved. For a man to be harassed and put to the expense of perhaps a long trial and then given an absolute discharge is hardly from any point of view an effective substitute for the exercise by the court of the power to which I have referred. Viscount Dilhorne said [4] : Where an indictment has been properly preferred in accordance with the provisions of that Act, has a judge power to quash it and to decline to allow the trial to proceed merely because he thinks that a prosecution of the accused for that offence should not have been instituted? I think there is no such general power and that to recognise the existence of such a degree of omnipotence is, as my noble and learned friend Lord Edmund-Davies has said, unacceptable in any country acknowledging the rule of law. But saying this does not mean that there is not a general power to control the procedure of a court so as to avoid unfairness. 1. [1977] A.C., at p. 46. 2. [1977] A.C., at p. 24.
The same approach was taken by Lord Edmund-Davies who, in the Court of Criminal Appeal in Connelly , had said [5] in reference to cases dealing with retrials on the same facts:
But, as always, these cases turn on their particular facts. In our judgment a judge is not entitled to refuse the trial of any indictment, be it a first or second indictment, merely because he thinks the trial ought not to proceed. He may do this only in accordance with established principles. To hold otherwise involves dangers too obvious to need stating. In Humphrys , his Lordship accepted that Lord Goddard's statement in Ex parte Downes [6] of a court's duty to try a case did not allow for a court declining to hear proceedings which are an abuse of its process. 1. [1964] A.C., at p. 1277. 2. [1954] 1 Q.B. 1.
In Reg. v. Sang [7] - a case relating to admission of evidence obtained by an agent provocateur - Lord Scarman [8] indicated the narrowness of the limits of a judge's authority to refuse to try a criminal case:
The role of the judge is confined to the forensic process. He controls neither the police nor the prosecuting authority. He neither initiates nor stifles a prosecution. Save in the very rare situation, which is not this case, of an abuse of the process of the court (against which every court is in duty bound to protect itself), the judge is concerned only with the conduct of the trial. The Judges' Rules, for example, are not a judicial control of police interrogation, but notice that, if certain steps are not taken, certain evidence, otherwise admissible, may be excluded at the trial. The judge's control of the criminal process begins and ends with trial, though his influence may extend beyond its beginning and conclusion. It follows that the prosecution has rights, which the judge may not override. The right to prosecute and the right to lead admissible evidence in support of its case are not subject to judicial control. Of course when the prosecutor reaches court, he becomes subject to the directions as to the conduct of the trial by the judge, whose duty it then is to see that the accused has a fair trial according to law.
What does "fair" mean in this context? It relates to the process of trial.
Connelly and Humphrys [9] do not suggest that delay attributable to the prosecution's inadvertence or negligence amounts to abuse of process. They were concerned with the purpose of the prosecutions there in question. 1. [1980] A.C. 402. 2. [1980] A.C., at pp. 454-455. 3. [1977] A.C. 1.
Nevertheless, by a benevolent (if not indulgent) reading of what was said by this Court in Barton , by the House of Lords in Connelly and Humphrys , by the Privy Council in Bell v. Director of Public Prosecutions [10] , by importing some of the constitutional doctrines developed by the Supreme Court of the United States in Barker v. Wingo [11] and sometimes by asserting the existence of a common law right to a speedy trial, several State courts have extended the notion of abuse of process and the availability of orders for a permanent stay to cover cases where delay on the part of the prosecution has occasioned some prejudice to the accused. Indeed, these courts have asserted that the categories of cases in which the power to grant a permanent stay should be exercised are not closed and the power is available whenever it would be unfair to the accused to permit the prosecution to proceed: Reg. v. Vuckov [12] ; Reg. v. Gagliardi and Filippidis [13] ; Herron v. McGregor [14] ; Watson v. Attorney-General (N.S.W.) [15] ; Reg. v. Clarkson [16] ; Cooney [17] . In practice, so broad a power does not fall far short of a power which is incompatible with the rule of law. Of course, one finds in these cases the qualification that a permanent stay will be ordered only in an "exceptional" case, but that is an ineffectual qualification to place upon so broad a power. Must not such a power be exercised to prevent any "unfairness" for which the accused is not responsible? What justification is there for limiting the exercise of such a power to "exceptional" cases?
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 parte Smith [18] ; Reg. v. West London Magistrate; Ex parte Anderson [19] ; Reg. v. Derby Crown Court; Ex parte Brooks [20] . In Ex parte Brooks, Sir Roger Ormrod [21] 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 Justices; Ex parte Graham [22] May L.J., delivering the judgment of the Divisional Court, said:
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. [23] This view, to which I subscribe, was overtaken by later English cases. 1. (1982) 75 Cr. App. R. 200, at p. 206. 2. (1984) 80 Cr. App. R. 143. 3. (1984) 80 Cr. App. R. 164. 4. (1984) 80 Cr. App. R., at p. 169. 5. [1982] Q.B. 1239, at p. 1247. 6. [1982] Q.B., at p. 1247.
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, e.g., Whitbread v. Cooke; Purcell v. Cooke [No. 2] [24] ) 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.
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.
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 [25] , 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. Director of Public Prosecutions [26] ; Reg. v. Humphrys [27] , and cf. Barton v. The Queen [28] ). 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. Director of Public Prosecutions [29] ; Reg. v. Jewitt [30] ). As Richardson J. observed in Moevao v. Department of Labour [31] :
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. 1. [1964] A.C., at p. 1354. 2. [1985] 2 S.C.R. 128, at pp. 136-137. 3. [1980] 1 N.Z.L.R. 464, at p. 481.
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 [32] and Aboud v. Attorney-General (N.S.W.) [33] ), in the judgments of other State courts (see, in particular, Reg. v. Clarkson [34] ; Kintominas v. Attorney-General (N.S.W.) [35] ) 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 [36] (see also United States v. Von Neumann [37] ; Bell v. Director of Public Prosecutions [38] ; Herron v. McGregor [39] ; Reg. v. Clarkson [40] ; Watson v. Attorney-General (N.S.W.) [41] ). 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 [42] ; Carver v. Attorney-General (N.S.W.) [43] ). 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 [44] ; Aboud v. Attorney-General (N.S.W.) [45] ). 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.
Chapter 29 of Magna Carta (25 Edward I (1297)), as it appears in Halsbury's Statutes of England, 2nd ed. (1948), vol. 4, p. 26, concludes with these words:
Nulli vendem, nulli negabim, aut differem rectum vel justiciam. The translation reads: We will sell to no man, we will not deny or defer to any man either justice or right.
The appellant contends that the undertaking by the Crown not to defer justice recognized, alternatively gave rise to, a right in a person charged with an offence to a speedy trial. That right, it is said, is separate from the right to a fair trial (though, counsel for the appellant explained, "perhaps overlapping to some degree with the right to a fair trial") and does not depend upon the person charged having suffered any prejudice by reason of delay in the prosecution of the charge against him.
The appellant further contends that this right to a speedy trial, recognized or established by Magna Carta, has been preserved in New South Wales by the Imperial Acts Application Act 1969 N.S.W.. Section 6 of that Act declares certain Imperial enactments to have been in force in New South Wales on 25 July 1828 and, subject to the effect of other Acts, to have remained in force from that day. One of the enactments to which s. 6 refers is "25 Edward I (Magna Carta) c. 29". The place of Magna Carta in Australian law is the subject of a note by Professor Castles in Australian meditations on Magna Carta, Australian Law Journal, vol. 63 (1989), p. 122.
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.
Under the procedure then existing in New South Wales, a bill of indictment was found, though not until May 1986, and then presumably in respect of the thirty counts just mentioned. The procedure itself is outlined by Priestley J.A. in Watson v. Attorney-General (N.S.W.) [46] . On 27 June 1986 the matter was listed in the District Court and a hearing of the charges was fixed for the week commencing 9 February 1987. When the indictment was presented on 13 February 1987, the appellant sought from Judge Thorley a stay of proceedings on the indictment. That application was refused. An appeal to the Court of Appeal failed (Kirby P. and Samuels J.A., with McHugh J.A. dissenting).
The primary question before us is whether a right to a speedy trial does exist. That is not the only question for the appellant has an alternative argument, namely, that even if there is no such right the continuation of his trial would be an abuse of the process of the court by reason of undue delay prejudicing his right to a fair trial. Consideration of the applicant's argument necessarily involves a journey into history. But the appellant urges us not to lose sight of his contention that, even if Magna Carta proves not to be the evidence or source of a right to a speedy trial, the statute was later taken to have had this effect and the right thereby became enshrined in our law.
In the Court of Appeal Samuels J.A. analyzed historical considerations which led him to conclude that "there is not, in this State, any right at common law to a speedy trial whether derived from the earliest origins of our legal heritage or from some more immediate source". I respectfully agree with his Honour's conclusion; what now follows owes much to his analysis. One consideration of great significance, and it is as well to identify it now, is that in the debate which has taken place no decision of long standing was cited as recognizing the existence of the right claimed or as granting a remedy for its breach. In saying this I am, of course, speaking of a right to a speedy trial independent of the right to a fair trial.
The speedy trial right is a common law right. It does not depend on statute. It needs no Constitution to enshrine it. In so observing, McHugh J.A. was echoing what he had said earlier in Aboud v. Attorney-General (N.S.W.) [47] , and earlier still in Herron v. McGregor [48] . But it still remains necessary to inquire as to the foundation for the statement that there is a common law right to a speedy trial. 1. (1987) 10 N.S.W.L.R. 671, at pp. 691-692. 2. (1986) 6 N.S.W.L.R. 246, at p. 252.
Those who assert the existence of the right pray in aid the statement by Coke in his Institutes of the Laws of England, Pt I, s. 108 [81a] that Magna Carta was "but a confirmation or restitution of the common law". They go further and rely upon the Assize of Clarendon 1166, cc. 4 and 6. In Klopfer v. North Carolina [49] Warren C.J., delivering the judgment of the Supreme Court of the United States, said:
We hold here that the right to a speedy trial is as fundamental as any of the rights secured by the Sixth Amendment. That right has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta but evidence of recognition of the right to speedy justice in even earlier times is found in the Assize of Clarendon 1. (1967) 386 U.S. 213, at p. 223.
This view of Magna Carta and the Assize of Clarendon is, as Samuels J.A. observed, open to serious challenge. Whether or not the view found its way into the United States Constitution via the Sixth Amendment need not detain us for it is not the United States Constitution with which we are concerned.
As to the Assize of Clarendon, the text published by William Stubbs in 1870 is now thought to be corrupt: see Richardson and Sayles, The Governance of Mediaeval England from the Conquest to Magna Carta, (1963), App. IV, pp. 438-444. The text of c. 4 of the Assize reads in part:
And when a robber or murderer or thief or receiver of them has been arrested if the justices are not about to come speedily enough into the county where they have been taken, let the sheriffs send word to the nearest justice that they have arrested such men, and the justices shall send back word to the sheriffs informing them where they desire the men to be brought before them; and let the sheriffs bring them before the justices. Richardson and Sayles comment, at p. 442, that although c. 4 of the Assize contemplates that "those accused of crime will be held in custody until the itinerant justices, before whom they are to make their law, arrive from some other county", the system of itinerant justices did not come into existence until at least 1168. "Thus, they conclude", said Samuels J.A., "the text which passes for the Assize does not represent contemporary instructions issued for the apprehension and punishment of suspected criminals." At the same time, Pollock and Maitland do note that the Assize "served as instructions for the justices who were being sent out on a great eyre throughout the land" (History of English Law, 2nd ed. (1898), vol. 1, p. 145). And Richardson and Sayles say of the Assize, as it has come down to us: "With some reserves, then, the compilation may be accepted as a statement of the procedure in the latter part of Henry II's reign" (p. 443). Henry II reigned from 1154 until 1189. There is therefore some contemporaneity about the document.
More importantly, the Assize was not concerned to assert any right to a speedy trial. Its intention was to ensure the primacy of royal justice over the local courts by reserving to the royal justices "jurisdiction over the robber, the murderer, and the thief": Holdsworth, History of English Law, 7th ed. (1956), vol. 1, p. 71. It is reading too much into the Assize to see it as aimed at ensuring an expeditious hearing for those accused of crimes. Furthermore, to draw such a conclusion from the Assize is to overlook the then situation of the courts. Their concern was to secure the attendance of the accused, at a time when judgment by default was not contemplated and when delays were inevitable and were exacerbated by the formal and technical procedures of the day: see McKechnie, Magna Carta, 2nd ed. (1914), p. 83. The need for a speedy trial was not likely to have been in contemplation.
In the thirteenth century the courts were held in the King's name by itinerant justices acting under temporary commissions. One, the Commission of Gaol Delivery, "was simply to deliver from the gaols of the county all persons lying therein by trying the accusations against them" (Potter, An Historical Introduction to English Law and its Institutions, 3rd ed. (1948), p. 110). Pollock and Maitland, vol. 1, p. 200, say of these commissions:
This in the latter part of Henry III's reign is done very frequently; generally it is done by some three or four knights of the shire, and thus, long before the institution of justices of the peace, the country knights had been accustomed to do high criminal justice. In vol. 2, at p. 645, Pollock and Maitland suggest: True also that, as time went on, justices were sent with ever increasing regularity to deliver the gaols; but the work of gaol-delivery seems to have been light - for few men were kept in prison - and it was regarded as easy work which might be entrusted to knights of the shire. In these circumstances it is understandable that the notion of a right to a speedy trial was not likely to have surfaced.
As to Magna Carta, the argument for a right of speedy trial runs into the sort of comment made by McKechnie, at p. 395, who observes of c. 40 in the 1215 version of Magna Carta (c. 29 in 25 Edward I):
This chapter has had much read into it that would have astonished its framers: application of modern standards to ancient practice has resulted in complete misapprehension. Although it would seem that c. 40 may not have been completely effective (see Pollock and Maitland, vol. 1, p. 195), its apparent intention was to correct the worst abuses associated with the practice of charging heavy fees for writs. But this was in order to ensure the pre-eminence of royal justice. It is pertinent to note Holdsworth's observation in vol. 2, pp. 214-215, in regard to cc. 38, 39 and 40 of Magna Carta in its original form: It was said in the seventeenth century that these clauses embodied the principles of the writ of Habeas Corpus and of trial by jury; and for these interpretations early mediaeval authority could be cited. It is not difficult to show that, taken literally, these interpretations are false. Trial by jury was as yet in its infancy. The writ of Habeas Corpus was not yet invented; and it was long after it was invented that it was applied to protect the liberty of the subject.
It is true that Coke, in Pt II of his Institutes , at p. 55 [55], derived more from c. 29 of Magna Carta for he said:
And therefore, every subject of this realme, for injury done to him in bonis, terris, vel persona, by any other subject, be he ecclesiasticall, or temporall, free, or bond, man, or woman, old, or young, or be he outlawed, excommunicated, or any other without exception, may take his remedy by the course of the law, and have justice, and right for the injury done to him, freely without sale, fully without any deniall, and speedily without delay.
But in truth the aims of c. 29 were more modest, as was summed up by Thomas Madox in History and Antiquities of the Exchequer, 2nd ed. (1769), vol. 1, p. 455, quoted in McKechnie, at p. 396:
By nulli vendemus were excluded the excessively high fines: by nulli negabimus, the stopping of suits or proceedings, and the denial of writs: by nulli differemus, such delays as were before wont to be occasioned by the counterfines of defendants (who sometimes would outbid the plaintiffs) or by the prince's will.
Coke's view of Magna Carta has been generally attacked. And, as Samuels J.A. noted, even if c. 29 be seen as declaratory of some fundamental law, it is not possible to find in the chapter any principle evidencing the right to a speedy trial. For that reason, the appellant's case is not assisted by the argument that the effect of the Imperial Acts Application Act is to re-enact Magna Carta as if it were a piece of contemporary legislation. Even if that be so (as to which it is unnecessary to express an opinion), the language of Magna Carta remains the same and the difficulty remains of finding in that language the principle for which the appellant contends.
Nor is there to be found in the writ of habeas corpus support for a right to a speedy trial. The writ "originated as a device for compelling appearance before the King's judicial instrumentalities" (Duker, A Constitutional History of Habeas Corpus (1980), p. 62). Pollock and Maitland, vol. 2, p. 594, observe:
One thing our law would not do: the obvious thing. It would exhaust its terrors in the endeavour to make the defendant appear, but it would not give judgment against him until he had appeared, and, if he was obstinate enough to endure imprisonment or outlawry, he could deprive the plaintiff of his remedy.
Hence, the object of habeas corpus was to ensure the defendant's attendance. Later the writ played a significant part in the battle for control between the Crown and the local courts, later still between the common law and equity and ultimately between the courts and the executive: see generally Sharpe, The Law of Habeas Corpus, (1976), Ch. 1; Duker, Ch. 1.
The Habeas Corpus Act 1679 (31 Charles II c. 2) (the first Habeas Corpus Act was enacted in 1640) was passed to meet abuses "which had in some measure defeated the benefit of this great constitutional remedy": Blackstone, Commentaries on the Laws of England, (1768), Book III, p. 135. Blackstone, at pp. 135, 137, stated that the Act "is frequently considered as another magna carta of the kingdom", and describes it as completing the remedy "for removing the injury of unjust and illegal confinement". However, he did not refer to it as a means for facilitating speedy trial. Dicey, Law of the Constitution, 10th ed. (1959), pp. 218-219, commented that the effect of the writ would be evaded
either if the Court did not examine into the validity of the warrant on which the prisoner was detained, and if the warrant were not valid release him, or if the Court on ascertaining that he was legally imprisoned, did not cause him according to circumstances either to go out on bail or to be speedily brought to trial. But it is apparent that Dicey was emphasizing that a prisoner could not be held in prison unduly. He must be bailed or brought to trial without delay. Read in context, Dicey was not asserting in general terms a right to a speedy trial.
Samuels J.A. notes various English decisions - Crosby's Case [50] ; Ex parte Beeching [51] ; In re Hastings [No. 2] [52] ; In re Kray [53] - in which reference is made to the right of a defendant not to be detained in prison without being brought to trial. In Reg. v. Oliver [54] , Lord Devlin went further and, during argument, spoke of s. 6 of the Habeas Corpus Act 1679 as giving "statutory effect to the principle that a defendant is entitled to a speedy trial, and that a judge may not postpone the trial beyond a certain limit". But it is hard to find in these various statements the articulation of what is truly a right to a speedy trial as opposed to a recognition of the power reposed in a trial judge to control the case before him so as to ensure that the accused is not detained in custody unduly.
Section 6 of the Habeas Corpus Act 1679 had as its object the prevention of unlawful detention and the prevention of detention for long periods without trial. But it was a limited remedy, as Samuels J.A. points out. It applied only to treason and felony; the time within which a trial must be held related to the sessions of oyer and terminer and of general gaol delivery rather than to a general concept of expedition; it is arguable that the section did not extend to persons on bail; it is not clear that discharge under s. 6 would bar further proceedings; and, as Tadgell J. pointed out in Clarkson v. Director-General of Corrections [55] , the discretion reposed in courts by modern legislation to adjourn or postpone trials "can scarcely be regarded as co-existing with a right of accused persons to insist that they be either tried within a defined period or inevitably discharged".
To return to the point made earlier in these reasons, there appears to be (at least until recently) no judicial decision giving recognition to a right to a speedy trial which stands independent of prejudice to the accused. In Bell v. Director of Public Prosecutions [56] , the Privy Council said in relation to the Jamaica (Constitution) Order in Council 1962, s. 20(1) of which required that a person charged with a criminal offence be afforded a fair hearing within a reasonable time:
Their Lordships do not in any event accept the submission that prior to the Constitution the law of Jamaica, applying the common law of England, was powerless to provide a remedy against unreasonable delay, nor do they accept the alternative submission that a remedy could only be granted if the accused proved some specific prejudice, such as the supervening death of a witness. Their Lordships consider that, in a proper case without positive proof of prejudice, the courts of Jamaica would and could have insisted on setting a date for trial and then, if necessary, dismissing the charges for want of prosecution. Several things may be noted about that passage. To begin with, it is obiter. It cites no authority for the propositions there stated. Though their Lordships found some guidance in Barker v. Wingo [57] , that case turned on the Sixth Amendment to the Constitution of the United States. Finally, the remedy seen by their Lordships to be generally appropriate was not the granting of a permanent stay but the bringing of the case to trial. In the instant case there was a declaration that the applicant's "right to a fair hearing within a reasonable time by an independent and impartial court established by law has been infringed" [58] , their Lordships anticipating that, in the particular circumstances, the applicant would be discharged and not tried again. 1. [1985] A.C. 937, at p. 950. 2. (1972) 407 U.S. 514. 3. [1985] A.C., at p. 955.
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, Stanford Law Review, vol. 27 (1975) 525, at p. 534, describes the proposition in Strunk v. United States [59] , 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. 1. (1973) 412 U.S. 434, at p. 440.
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, Australian Law Journal, vol. 62 (1988) 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.
In the same way Barker v. Wingo, referred to by the Privy Council in Bell v. Director of Public Prosecutions and relied upon to some extent by the appellant, proves on examination to be a very shaky support for the proposition that there exists a right to a speedy trial. Although the Sixth Amendment, in its terms, ensures to an accused "the right to a speedy and public trial", the Court rejected the notion of an inflexible rule and held that an accused's constitutional right involves "a balancing test, in which the conduct of both the prosecution and the defendant are weighed" [60] . The Court identified [60] , four of the factors to be taken into account: "Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." For a more recent illustration of the way in which the Supreme Court of the United States approaches that question, see United States v. Loud Hawk [61] .
Although, in Reg. v. Clarkson [62] , the Full Court of the Supreme Court of Victoria, said that "it is widely recognized that there is at common law a right to prompt trial", it is apparent that what the Court was concerned with was its power to protect its process from abuse in circumstances where a trial may prove unfair to an accused. The same considerations underlay the decision of the Queensland Full Court in Cooney [63] .
The remedy of a stay assumes significance when an accused's complaint is that, by reason of delay, he has been prejudiced in his defence. To bring the matter to trial does not assist the accused in those circumstances. At the same time, it may be difficult to justify a dismissal of the charge if the Crown is ready to proceed. A stay may then be appropriate. But, that is an aspect of the right to a fair trial, a right which is unquestioned, not of an independent right to a speedy trial. "There is ample authority for the proposition that the courts possess all the necessary powers to prevent an abuse of process and to ensure a fair trial": Gibbs A.C.J. and Mason J. in Barton v. The Queen [64] . See also Connelly v. Director of Public Prosecutions [65] .
In Barton , abuse of process and fair trial are linked by Gibbs A.C.J. and Mason J. as they are by Wilson J. [66] , though Wilson J. identifies abuse of process as generally relating to the charge itself and fairness as going to procedures that have been followed or are proposed to be followed. It is consistent with authority and principle to regard each notion as part of the responsibility of the courts to see that justice is done to the parties and to the wider community, ensuring that the appropriate remedy is applied in the particular case. Where proceedings have been instituted for an improper purpose (abuse of process), no remedy is likely to be appropriate other than a stay of the proceedings. No directions given by the judge at trial can protect the accused in that situation. On the other hand, where an accused has suffered some prejudice in his defence by reason of delay in bringing his case to trial (fair trial), it will often be possible to cure that prejudice by evidentiary rulings and by directions to the jury regarding the way they should approach the evidence adduced. But it is conceivable that delay has been so great and consequent prejudice to an accused so manifest that directions cannot ensure a fair trial. In that situation a stay of proceedings is the only remedy that meets the situation. Uncommon as that situation may be, it cannot be excluded. To treat abuse of process and fair trial as entirely distinct concepts carries the risk that the remedies in each case will be seen as necessarily different. That will not always be the case. Greater flexibility and in the end greater justice will be achieved if the two notions are understood as bearing on each other.
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 [67] ; also Clarkson [68] ; Carver v. Attorney-General (N.S.W.) [69] . 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.
Though the appellant argues that the delay has brought about "presumptive prejudice", the argument is not persuasive. It is enough to borrow the words of Kirby P. in the Court of Appeal:
This is not, after all, a case the trial of which will involve, as many corporate offences do, complex documentation and interrelated transactions. In such cases the erosion of memory over time could work a serious injustice to an accused person. Here, the basic Crown case will be proof of the financial transactions said to have been made without authority. That proof will rely very heavily upon cheque butts and bank records. No witnesses have died. The documentary evidence remains for the jury's consideration and, if so desired, for the accused's explanation.
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.
The sorry state of affairs surrounding the failure to bring Mr. Jago to trial on charges laid in 1981 in respect of events which took place between 1976 and 1979 is set out in the judgments of others. I need not repeat those matters.
The question raised in the present appeal is whether the Court of Appeal of the Supreme Court of New South Wales erred when, by majority (Kirby P. and Samuels J.A., McHugh J.A. dissenting), it dismissed a summons taken out in that Court by Mr. Jago seeking orders in the nature of mandamus, prohibition and certiorari in relation to the refusal by his Honour Judge Thorley of the District Court to stay proceedings on an indictment presented in that court on 13 February 1987. Additionally, Mr. Jago sought an order "commanding the removal into [the Court of Appeal] of the said trial for the purpose of granting a permanent stay of the said proceedings" and an order that "the said trial be permanently stayed".
The assumption underlying the summons and the basis upon which the Court of Appeal approached the matter was that, if error appeared in the decision of Judge Thorley, the Court of Appeal had power, co-extensive with that of the District Court, to stay proceedings on the indictment. See Herron v. McGregor [70] , and Watson v. Attorney-General (N.S.W.) [71] . That assumption was not challenged in the present proceedings and its correctness appears to be of little practical relevance now that s. 5F of the Criminal Appeal Act 1912 N.S.W. provides for an appeal (by right in the case of the Attorney-General or Director of Public Prosecutions, by leave or by certification in the case of an accused) to the Court of Criminal Appeal from interlocutory orders and judgments in criminal proceedings.
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?
Subject to any limitation or restriction to be found in statute, a court necessarily has power (whether that power is identified as inherent power or a power necessarily to be implied from relevant statutory provisions) to control its own process and proceedings.
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 [72] ; Lawrance v. Norreys [73] .
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, e.g., Jackson v. Sterling Industries Ltd. [74] ; Hamilton v. Oades [75] .
The terms "frivolous", "vexatious" and "oppressive", when used in relation to civil proceedings, sometimes serve to signify that the proceedings are an abuse of process such that, in the interests of the administration of justice, they should attract the grant of a permanent stay. But the terms "vexatious" and "oppressive" may also import a consideration of the justice or fairness of the proceeding, those terms signifying, in appropriate context, proceedings which are "seriously and unfairly burdensome, prejudicial or damaging" or are "productive of serious and unjustified trouble and harassment": Oceanic Sun Line Special Shipping Company Inc. v. Fay [76] ; Hamilton v. Oades [75] .
The above general considerations lead me to think that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand. That having been said, the question arises whether criminal proceedings are properly to be seen as attracting the same general power as exists in relation to civil proceedings, including a power to grant a permanent stay if the administration of justice so demands.
It was held in Barton v. The Queen [77] that a court exercising criminal jurisdiction may, to prevent unfairness or injustice, stay proceedings on indictment pending the holding of committal proceedings. In that case Gibbs A.C.J. and Mason J. left open the question whether the power might be exercised by the grant of a permanent stay, but said [78] , by reference to Connelly v. Director of Public Prosecutions [79] and Reg. v. Humphrys [80] , that "[t]he view that there can be no injustice or unfairness to an accused in putting him on trial without reasonable grounds merely because he will be ultimately acquitted and because he can bring an action for malicious prosecution has been emphatically rejected, as indeed it should be".
When, in the words of Wilson J. in Barton [81] , there is "a fundamental defect which goes to the root of [a criminal] 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", an accused person is denied that which the law guarantees, namely, a fair trial according to law. In such circumstances, it may fairly be said that the administration of justice demands that the proceedings be permanently stayed. And when regard is had to the serious nature of the injustice and unfairness involved in requiring a person to have his or her guilt or innocence determined in a proceeding which is, ex hypothesi, unfair, there can be no sound basis for denying that the power of a court to control its own process and proceedings extends to the grant of a permanent stay of criminal proceedings if the administration of justice so demands.
Whether or not such a power may be exercised by reference to a "right to speedy trial" or to "presumptive prejudice" depends on whether those particular matters can be said, in the interests of justice, to demand that course. The answer to that question is to be found in an analysis of the power to grant a permanent stay and a consideration of those features of the criminal process which necessarily bear upon its exercise in criminal proceedings.
The power to grant a permanent stay of proceedings is a discretionary power. See, e.g., Castro v. Murray [82] ; Connelly [83] per Lord Reid, and [84] , per Lord Pearce. 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 [85] , per Sholl J. 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.
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 [86] , 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 (N.S.W.) v. Watson [87] , "sparingly, and with the utmost caution". See, generally, Cocker v. Tempest [1] ; Lawrance v. Norreys [2] ; Humphrys [3] ; and Reg. v. Derby Crown Court; Ex parte Brooks [4] .
In the case of a statutory discretion, the permissible considerations, if not otherwise specified, may be identified by reference to the scope and purpose of the legislation. See, e.g., Water Conservation and Irrigation Commission (N.S.W.) v. Browning [5] , per Dixon J. So too, the scope of the power to grant a general stay of proceedings and the underlying general purpose, namely, to control the court's process and proceedings, serve to provide some general indication of the matters which must be taken into account and the limits to the matters which may be taken into account when the power is invoked.
The limited scope of the power to grant a permanent stay necessarily directs an inquiry whether there are other means by which the defect attending the proceedings can be eliminated or remedied. And the purpose directs attention to the legal propriety of the process or proceeding, as distinct from any broad consideration of the general merits of the case.
The features which attend the criminal process enable the general considerations to be refined somewhat in their application to the grant of a permanent stay of criminal proceedings. One particular feature relevant to criminal proceedings is that the question whether an indictment should be presented is and always has been seen as involving the exercise of an independent discretion inhering in prosecution authorities, which discretion is not reviewable by the courts. Originally, the unreviewable nature of that discretion was seen as an aspect of the prerogative power vested in the office of Attorney-General. See, e.g., Reg. v. Allen [6] . More recently, the unreviewable nature of that discretion has been seen as deriving from the nature of the subject matter to be decided and, perhaps, the incompatibility of judicial review with the ultimate function of a court in a criminal trial. See Barton [7] , per Gibbs A.C.J. and Mason J. [8] , per Wilson J. See also The Queen v. Toohey; Ex parte Northern Land Council [9] , per Mason J. Thus, it may be said that the power to grant a permanent stay of criminal proceedings is not to be exercised on the basis of an opinion that an indictment should not have been presented. See Humphrys [10] , per Lord Salmon.
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 [11] . See also Harris v. Director of Public Prosecutions [12] , per Viscount Simon; R. v. Christie [1] , per Lord Reading. 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.
The "right to speedy trial" claimed in the present case is claimed either as a common law right evidenced by Magna Carta or as a right deriving from Magna Carta. The guarantee in c. 29 of Magna Carta that "to no man shall we delay justice or right" is, by force of s. 6 of the Imperial Acts Application Act 1969 N.S.W., part of the law of New South Wales "except so far as affected by any Imperial enactments or State Acts from time to time in force in New South Wales". Delay is thus a matter properly and necessarily to be taken into account by prosecuting authorities in deciding whether a prosecution should be brought, at least if that delay is referable to the action or inaction of prosecuting authorities. But the notion of a "right to speedy trial", as presented by reference to the facts of this case, involves no consideration other than that delay has occurred. It raises no question other than whether, having regard to that delay (either by reason of the guarantee in c. 29 of Magna Carta or by reason of policy considerations), the indictment should have been presented. That consideration is not one which may be entertained by a court. Accordingly, there is no power to grant a stay of proceedings on the indictment in vindication merely of a claimed "right to speedy trial".
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".
Jago
District Court
High Court of Australia Mason C.J. Brennan, Deane, Toohey and Gaudron JJ. Jago v District Court (NSW) [1989] HCA 46
Appeal dismissed.