Permanent Stays

Published by Geoff Harrison | 25 April 2024

A permanent stay in criminal proceedings is an extremely rare remedy applied by the courts and is only to be given in exceptional circumstances; generally where either the administration of justice would be brought into disrepute or the accused could not receive a fair trial. The general principles relating to a permanent stay in criminal proceedings were set out by Bell CJ in La Rocca v R [2023] NSWCCA 45 at [34]:

Applicable principles and authorities

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

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

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

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

(iv) there is no “definitive category” of extreme cases: Dupas at [35];

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

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

(vii) the administration of justice may be brought into disrepute in a number of different ways;

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

(ix) other examples include where the manner in which the case was developed and brought:

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

• was contrary to the rule of law: R v Horseferry Road Magistrates’ Court; ex parte Bennett [1993] UKHL 10; [1994] 1 AC 42 at 62, 67; R v Grant [2009] 2 SCR 353 at [67];

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

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

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

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

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

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

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

Other Cases:

• Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53

• Jago v District Court of NSW [1989] HCA 46

• Moti v The Queen [2011] HCA 50

• Dupas v The Queen [2010] HCA 20

• R v Glennon [1992] HCA 16

• Williams v Spautz [1992] HCA 34

• TS v R [2014] NSWCCA 174

• R v Littler [2001] NSWCCA 173