Jago v District Court (NSW)

HIGH COURT OF AUSTRALIA

Mason C.J., Brennan, Deane, Toohey and Gaudron JJ.

JAGO v. THE DISTRICT COURT OF NEW SOUTH WALES AND OTHERS

(1989) 168 CLR 23

12 October 1989

Criminal Law (N.S.W.)

Criminal Law (N.S.W.)—Trial—Delay—Whether common law right to speedy trial—Abuse of process—Stay of proceedings—25 Edw I c 29 (Magna Carta)—Imperial Acts Application Act 1969 (N.S.W.), s. 6.

Decisions

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

2. It is convenient to commence by considering the inherent power of courts to prevent abuses of their process. It is clear that Australian courts possess inherent jurisdiction to stay proceedings which are an abuse of process: Clyne v. N.S.W. Bar Association (1960) 104 CLR 186, at p 201; Barton v. The Queen (1980) 147 CLR 75, at pp 96, 107, 116. Subject to statutory provision to the contrary, a court also possesses the power to control and supervise proceedings brought in its jurisdiction, and that power includes power to take appropriate action to prevent injustice: see Hamilton v. Oades (1989) 63 ALJR 352, at p 358; 85 ALR 1, at p 11. But it may be that "injustice" in this context has a limited meaning, although the power is not to be confined to closed categories: Jackson v. Sterling Industries Ltd. (1987) 162 CLR 612, at p 639; Hamilton v. Oades, at p 358; p 11 of ALR In particular, the criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context. However, for the purpose of applying the principles of abuse of process, the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important: Jack Brabham Holdings Pty. Ltd. v. Minister for Industry, Technology and Commerce (1988) 85 ALR 640, at pp 649-651.

3. This Court has not yet decided whether the power to prevent abuses of process extends to a power to prevent unfairness generally (see Barton v. The Queen, at pp 96-97), although lower courts have not found difficulty with such an approach: Herron v. McGregor (1986) 6 NSWLR 246, at pp 250-251; Reg. v. Clarkson (1987) VR 962, at pp 967-973; Watson v. Attorney-General (NSW) (1987) 8 NSWLR 685, at p 697; Clayton v. Ralphs and Manos (1987) 45 SASR 347