The Queen v Lane, Paul Gregory

JUDGMEM No. ........ ........ .. ........ ....

Ilf l

, 75

CATCHWORDS

CRIMINAL LAW AND PROCEDURE - permanent stay of committal proceedings - exercise of Judge's discretion - relevance of accused's written statement of instructions to his solicitors inadvertently coming into the hands of prosecuting authorities - substantial delay in making of allegation of sexual assault on a male who was a minor at the time of the alleged assault - whether trial would necessarily be unfair - factors in addition to length of delay which may cause irretrievable prejudice - abuse of process.

Doney v R (1990) 171 CLR 207

Herron v McGreqor (1986) 6 NSWLR 246

Emanuele v Cahill (1987) 71 ALR 302

Cooke v Purcell (1988) 14 NSWLR 51

Jaqo v District Court (NSW) (1989) 168 CLR 23

R v Meskers, unreported, Criminal Court of Appeals, New South

Wales, Priestley JA, Wood and Finlay JJ, 13 June 1991

R v Glennon (1992) 173 CLR 592

Tan v Cameron [l9921 2 AC 205

Williams v Spautz (1992) 174 CLR 509

Walton v Gardiner (1993) 177 CLR 378;

R v VPH, unreported, Criminal Court of Appeal, New South Wales,

Gleeson CJ, Newman a.nd Sully JJ, 4 March 1994

G v Medical Board of the ACT, unreported, Federal Court of

Australia, Gallop, Neaves and Ryan JJ, 1 September 1994

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

THE QUEEN v PAUL GREGORY LANE

No. ACT G84 of 1994

Coram:

Wilcox, Ryan and Higgins JJ

Date

19 June 1995

Place: Canberra

IN THE FEDERAL COURT OF AUSTRALIA

)

AUSTRALIAN CAPITAL TERRITORY

1	No. ACT G84 of 1994

DISTRICT REGISTRY

1 1

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

BETWEEN

THE QUEEN

Appellant

AND :

PAUL GREGORY LANE

Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER:	Wilcox, Ryan and Higgins JJ
DATE OF ORDER:	19 June 1995
WHERE MADE:	Canberra
THE COURT ORDERS THAT:

1. The appeal be allowed.

2. The order appealed from be set aside.

N o t e :

Settlement and entry of orders is dealt with in Order

36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

) No. ACT.G84 of 1994

AUSTRALIAN CAPITAL TERRITORY	1
DISTRICT REGISTRY	1 1
GENERAL DIVISION	1

ON APPEAL FROM THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN :

THE QUEEN Applicant

AND:

PAUL GREGORY LANE

Respondent

CORAM :	WILCOX, RY+N & HIGGINS JJ
PLACE :	CANBERRA
DATE :	1 9 June 1995

REASONS FOR JUDGMENT

WILCOX J: I have had the advantage of reading in draft form the

reasons for judgment of Ryan and Higgins JJ. Those reasons contain an account of the facts of the case and references .to the relevant authorities.

Although the learned primary Judge referred in his reasons to the llaccused's instructions" falling into the hands of the complainantf s father, I agree with Ryan and Higgins JJ that it would be wrong for us to determine the case on the basis that he placed significant reliance on that matter. He could not properly have done so in advance of determining whether the accused inadvertently handed the document to Mr Fabris, and it was misused by him, or whether (as Mr Fabris contended) the accused knowingly gave it to Mr Fabris to enable him to show it

to other people. Because of this factor, and his Honour's reiterated concern about delay, it is reasonable to accept that his decision to stay the proceeding was predominantly based upon the time that had elapsed between the occurrence of the alleged offence and the filing of the indictment.

Nine years had elapsed, a considerable period of time. However, there was no suggestion that this delay had occasioned any prejudice to the accused, other than the disadvantage that always arises when a person is asked to deal with an. accusation about long past conduct. Unlike the position that obtained in some of the cases discussed by Ryan and Higgins JJ, in this case counsel made no claim of loss of witnesses or relevant documents. His case was one of delay sim~liciter. In this situation, it seems to me, with respect and agreeing with Ryan and Higgins JJ, that the primary Judge erred in granting a stay. As the authorities cited by Ryan and Higgins JJ demonstrate, delay sim~liciter is not enough. It is sufficient to refer to what was said by the meinbers of the High Court in Jaao v District Court of New South Wales (1989) 168 CLR 23.

It is likely that many people would share the primary Judge's concern about a person being placed on trial nine years after the date of an alleged offence. ' I understand that concern. A delay of this order undoubtedly complicates the task of everybody involved in the trial. It is not difficult to imagine cases in which lengthy delay will cause, or contribute to, an appropriate prosecutorial decision not to proceed to trial. ~ u t

it is another thing to say that there ought to be a general rule against what the primary Judge described as "very stale allegations like this being ventilated in the full panoply of a criminal trial". Both the everyday experience of criminal courts and the reported cases demonstrate that it is commonplace for there to be a substantial delay in the reporting of alleged sexual assaults, especially where the complainant is a child. Without saying anything about the facts of this case, which have not been investigated, it seems that many sexual assault victims are unable to voice their experience for a very long time. To adopt a rule that delay simpliciter justifies a stay of criminal proceedings woald be to exclude many offences, particularly offences against children, from the sanctions of the criminal law.

I agree with Ryan and Higgins JJ that the appeal should be allowed and the stay order set aside.

I certify that this and the preceding two (2) pages

are a true copy of the Reasons for Judgment

of the Honourable Justice Wilcox.

Associate: L

Dated :

1 9 June 1995

IN THE FEDERAL COURT OF AUSTRALIA

)

AUSTRALIAN CAPITAL TERRITORY

)	No. ACT G84 of 1994

DISTRICT REGISTRY

) 1

GENERAL DIVISION

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL

TERRITORY

BETWEEN:

THE QUEEN

Appellant

AND

PAUL GREGORY LANE

Respondent

CORAM

Wilcox, Ryan and Higgins JJ

DATE

19 June 1995

PLACE

: Canberra

REASONS FOR JUDGMENT

RYAN AND HIGGINS JJ:

On the 24th day of November 1994, an indictment was presented

against the respondent. It contained one count alleging that:

... between the 1st day of July 1985 and the 27th day .

of November 1985 at Canberra in the Australian Capital Territory [the respondent] did indecently assault [D], a male.

That same day the respondent, by motion, sought an order 'that the proceedings against him be permanently stayed and that the Registrar be invited to consider the institution of proceedings against D's father for contempt of court.

The reason for that application was, as stated by counsel for the respondent, that:

. . . a confidential and privileged document, being a

statement from my client to his instructing solicitor, which set out in detail his defence, had been in some way put into the hands of the father of the complainant.

There were two versions as to how that document came into the possession of D's father. The respondent alleged that, following his arrest on 1 October 1993 and, presumably, following his signature of the document on 26 October 1993, he returned certain documents to a friend of his, David Fabris. At a later time, he

realised that he had, by mistake, included his copy of the statement in the folder of documents he had returned to Mr Fabris. He then spoke to Mr Fabris about that matter on or about 1 March 1994. As he recounted it, the conversation was to the following effect:

Fabris :	[D's father] has told me that the case against Paul [sic: "you"?] is weak and "We need your help, everyone will benefit from it." [D's father] says that if I help him he will fix things for me.
Respondent:	Like what?
Fabris :	Like my disability claim. [D's father] said, "Forget Paul Lane he is history".
Respondent:	What happened to the Statement of mine

that you have taken?

Fabris

It's somewhere safe.

The respondent's solicitor, Mr Chadwick, deposed that on 21 November 1994, Mr Shane Madden of the office of the ACT Director of Public Prosecutions (DPP) advised the respondent's counsel that he had, that morning, received by fax a copy of the statement referred to. He took the view that it was not a

document that should have come to the prosecution. He proposed to disqualify himself from further conducting the prosecution. Another officer would be assigned to it.

On Wednesday, 23 November 1993, Mr Chadwick attended on Mr Madden. The latter advised him that the document had been referred to by D's father during a conference he had with D as "the letter". It was not a document with which the prosecution had been briefed. On seeing a copy faxed to him by D's father, Mr Madden- had concluded that it was probably a privileged document. Mr Chadwick was given the document and recognised it as a copy of the respondent's instructions to him in the form of the statement prepared by him for the respondent's signature.

Mr Madden undertook that the prosecution would make no use of the document.

By letter later that day addressed to the DPP, Mr Chadwick expressed concern that:

... it has been known since March [l9941 that the police were in possession of the document without any notice having been given to us or steps being taken to recover the document and ascertain the circumstances in which police obtained possession of it.

It appears that a police officer did mention something about "the document" to a DPP officer at the committal. How explicit that reference was is not clear. It did not cause that officer to make further enquiries. Nor was he given a copy of the document. The appellant's counsel agreed that the court could assume that

some time prior to the committal a copy of the respondent's statement had been given to investigating police, probably by D's father.

In those circumstances, Mr Chadwick's letter contended:

... it would be unfair and inappropriate for this

matter to proceed to trial.

The document was said to include in detail the respondent's proposed defence to the charge against him.

In response to these affidavits, the prosecutiop presented an affidavit from D. He deposed that the respondent had been a family friend. The duration of that friendship was not disclosed, but the respondent had been a frequent visitor at D's residence and had, on a number of occasions, looked after D and his siblings at the request of D's father.

Towards the end of 1985, D deposed, he awoke to find the respondent committing an act of fellatio upon him. He ejaculated into the respondent's mouth. His penis, he noticed, was red and sore but he had no other injury. D was then about 11 and the respondent about 19.

D said that the following day he had told a school friend about

the incident. He was not then asked by the respondent to keep quiet about the incident, but the respondent, he said, was thereafter very generous to him. Indeed, D said, his parents had

told him to refuse further gifts. When that happened is not

clear.

The respondent is alleged later to have sought reassurance from

D that he had not told his parents of the incident. The last

such request was about ~hristmas 1992. At that time, D said that he would tell his parents about what had occurred in 1985. As it happened, he first gave an account of the allegation to his

girlfriend, but not until 19 September 1993. Thereafter he spoke about it to his elder brother and, finally, on 24 September 1993, told his father. Police were then informed. There was no explanation offered for the delay in reporting the alleged offence save that, in the conversation with his girlfriend, to which she deposed, D seemed reluctant to complain because the respondent was "a good friend".

There was also an affidavit presented from Mr Fabris. He deposed that he had been approached by the respondent in late October or early November 1993. He stated:

2 . . . . the circumstances by which I obtained the said document arose in late October [or] early November when he approached me and said, "It's all lies, I'll show you my police statement which you can show to Stacy and Liana. Can you come and pick this document up because I'm not allowed near anyone's house."

3. The following day I met him at Woden Plaza and he gave me a folder with a two to three page document within it. He said, "that's my statement to the police and that's the truth of everything". I then said, "I don't know, I 'm not sure about anything but I'll give you the benefit of the doubt but I don't believe anything will change in relation to the women". The women were Liana, my sister and Stacy, my then defacto wife, who had banned him from coming near either of their houses.

4. As to paragraph 4 of his affidavit I say that all of the matters therein alleged are false. Specifically I deny the meetings ever occurred and I further deny that I ever had such conversations with him or any conversation of the nature alleged.

It is apparent that, if Mr Fabris' version of events be accepted, a claim for privilege in respect of the documents is most unlikely to succeed. However, there were many areas of uncertainty surrounding that issue. Mr Hastings QC, for the respondent, sought an adjournment of the trial further to explore those matters.

His Honour responded:

Do you want to say anything about the staleness now?

I mean, here is an allegation of something that

happened . . . between 1 July and 27 November 1985;

complaint is made in September 1993 ...

Mr Hastings QC then indicated that the antiquity of the allegation, lack of recent complaint and the weakness of the case would all be relied on to support the substantive application.

Mr Loomes, who then appeared to prosecute, made it clear that the Crown did not oppose the application for adjournment to prepare the stay application properly. He foreshadowed that cross- examination of the respondent would be necessary. He continued:

In relation to the legal issues, I have not come prepared at all for the delay aspect of the stay application, that is, the staleness of the matter.

His Honour said:

Well, Mr Crown, I think the question of whether the document is privileged in the criminal area and

whether privilege can be claimed can abide another day, but I would like to hear you about staleness now. It seems to me that prima facie this is terribly stale.

After further discussion between counsel for the Crown and his Honour, the matter was adjourned to the following day for further argument.

After counsel for the Crown had read the affidavits of D, his girlfriend andMr Fabris, his Honour asked Mr Hastings QC whether he wished to cross-examine any of the deponents.

Mr Hastings QC, no doubt appreciating that'his Honour regarded the issue of delay as critical, declined. He explained that course on the basis that each deponent would simply stick to his or her version. He noted that issue had been joined as to the facts in dispute.

Following argument, his Honour ruled in the following terms:

Doing the best I can in the balancing exercise that I am required to embark upon I think this is a trial that should be stayed. The delay is very substantial and there is really no satisfactory explanation for that delay. If I am to take any notice of what the High Court has said in the various cases surely this court has to do something to put a stop to very stale allegations like this being ventilated in the full panoply of a criminal trial with the accused's version of - or his instructions to his solicitor being at some stage in the hands of not only the Crown, but the victim himself, the complainant himself.

The matter has been very badly handled by everybody except the Crown authorities who have behaved in a very responsible way. It was quite wrong for the accused's instructions to fall into the hands of the complainant's father and for the complainant to be familiarised with all of that when the criminal

process was in train. I really think that this court has got to take a strong stance about this sort of stale allegation and certainly that sort of behaviour. Now, I could be more expansive about my reasons but I do not propose to be. The less said about the matter the better. I make an order permanently staying the prosecution of the indictment in the matter.

Pursuant to leave granted by Lockhart J on 17 February 1994, the Crown appeals to this Court seeking that the stay order be set aside.

That his Honour had jurisdiction to grant a stay was not challenged. The essence of the Crown's argument was that his Honour erred in finding unreasonable delay, in failing to conclude that any relevant privilege had been waived in respect of the document in 'question and in failing properly to give weight to the community's interest in having criminal charges tried in the usual way. It was contended that in all the circumstances a stay should have been refused.

Although his Honour relied both on delay and on the respondent's statement having fallen into the hands of the complainant's father, it is difficult to see how any finding adverse to the Crown could have been made on that latter issue without rejecting Mr Fabris' version of events. That could not fairly have been done without at least hearing from and seeing him under cross- examination. At the very least, it would have been necessary to advance reasons for apparently preferring the account given by the respondent as to how the document came into the possession of D's father and then the police. The onus was, after all, on

the respondent to prove whatever facts might support the

app.li.cation

for a stay.

The allegations against the respondent, as first reported to police, were vague as to when the alleged offence occurred. Shortly before trial the prosecution had taken a further statement from the complainant designed to narrow the time frame within which it was alleged the offence had occurred. However, the prosecution had not been able, by the date originally set for the trial, to provide any corroborative evidence that the offence had occurred or as to when it had been committed. Nor was there any evidence to substantiate the alleged contemporaneous complaint.

In those circumstances, particularly given the extreme delay in prosecuting the matter, it was clearly open to a trial judge to conclude that the jury should be warned that it would be unsafe to convict in the absence of corroboration. However, it would not have been open to a trial judge to direct a verdict of acquittal even if he or she had concluded that a conviction would

be unsafe and unsatisfactory:

see Doney v R (1990) 171 CLR 207.

It is more difficult confidently to conclude that a trial will

necessarily be unfair than it is to decide whether a trial has been unfair. Much unfairness feared in prospect is eventually avoided by either or both restraint in the presentation of the Crown case and appropriate directions from the trial judge.

It must be concluded, therefore, that substantial delay was the factor which persuaded his Honour that the stay application should succeed.

WILL SUBSTANTIAL DELAY SUFFICE?

In Herron v McGregor (1986) 6 NSWLR 246, there was a successful application for a stay of disciplinary proceedings against certain medical practitioners who had been involved in alleged misconduct at the Chelmsford Private Hospital. The complaints related to treatment given to various patients between 1973 and 1977. The first complaint was lodged in 1982. In 1985 Dr Harry Bailey, the leading exponent of the impugned deep sleep therapy, died. He would have been an important witness in the proceedings.

It was the view of McHugh JA, at 254, that, although no statute of limitation was applicable, "long delay will frequently create prejudice which can never be proved affirmatively". Accordingly, at 255, his Honour said:

When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.

Nevertheless, his Honour, with whom Street CJ and Priestley JA concurred, accepted, at 256, that:

. . . long delay in bringing proceedings by itself is

not enough to render a complaint an abuse of process

. . .

What then, made the difference?

In the Chelmsford case, apart.

- from the absence of Dr Bailey, there were also other proceedings which had been taken against the applicants. They had lasted many years. During that time the disciplinary authority had procrastinated and delayed a decision whether or not to proceed. Other proceedings, including coronial inquests, had also been held into the deaths of some of the persons treated by some of the applicants. The multiplicity and complexity of the prior proceedings added an element of oppression to the substantial delay.

The case of Emanuele v Cahill (1987) 71 ALR 302 involved alleged delay and indecision in bringing on and conducting committal proceedings against the applicant. The applicant had been charged with the attempted bribery of a public official. The learned Magistrate refused to stay the proceedings. The basis of the application for a stay was that the prosecution had created a situation of disadvantage to the applicant by delaying or vacillating in the production of relevant materials. Although that delay and vacillation had been prejudicial to the applicant, it was held that there had been no necessarily irretrievable prejudice. It was held that it was not an error of law to refuse to stay the proceedings.

In Cooke v Purcell (1988) 14 NSWLR 51, conspiracy to misuse company funds between 1966 and 1974 was alleged in committal proceedings commenced in 1985. Maxwell J ordered a permanent stay. The Crown appealed.

Kirby P made the point that such a stay effectively terminates the criminal proceedings in progress up until that time. Consequently, the appeal against a stay order raised the same considerations of "double jeopardy" as Crown appeals against conviction or sentence. His Honour considered, at 60, that the orders made by Maxwell J could be justified by the gross delays in prosecuting the case:

The gross delays between the alleged offences and a trial of the respondents now would stretch, in some cases, to more than twenty years. Far from diminishing the significance of those delays (already presumptively prejudicial) the fact that the prosecution case would depend substantially upon documents actually adds to the burden of delay upon the respondents. This fact would make the importance of surrounding circumstances, which might have provided an innocent explanation for seemingly incriminating documents, all the more vital to the respondents. A delay of the length of time involved here is therefore especially prejudicial in their defence. Add to these considerations the death of at least one witness of vital importance to the respondents during the delay, the fact that one of the respondents, lulled by a reasonable belief that no criminal proceedings would be brought against him, gave evidence in civil proceedings ...

Mahoney JA, while supporting the decision of Maxwell J noted, at

The significance of delay will, of course, be determined by the facts. The fact alone of delay will not determine the matter: the accused may have succeeded in hiding his crime or making the prosecution of it difficult. Where delay is urged as a prejudice, it may in some cases be possible to infer prejudice merely from the fact of delay. In other cases, the particular delay may not warrant the inference that the accused, in the conduct of his defence, will be prejudiced because of it. Whether the case is the one or the other will depend upon what, as a matter of fact, it is proper to infer.

Further, it was held that a stay order should not be made unless it appears that, whatever the trial judge does, the trial will inevitably involve an abuse of process or be inherently unfair.

Clarke JA also noted that delay, even if gross, does not establish abuse of process. The length of delay is relevant. So also are the reasons for that delay. Examination of those matters may involve an attribution of responsibility for the delay.

The responsibility of the accused for any delay is, therefore, relevant. However, the most important factor is prejudice to the accused. Again, the concept of "presumptive prejudice" where the delay is lengthy enough, was referred to with apparent approval.

In referring to the "balancing exercise", Clarke JA noted at 78:

The requirement that the court carries out this balancing exercise emphasises the need for the applicant for a stay to demonstrate that the delay is, in the particular circumstances of the case, so great .

as to constitute the institution or maintenance of the proceedings an abuse of process. The point being made by McHugh JA in Herron is that once a court is affirmatively satisfied that the delay in the prosecution of a case has been so gross as to cause prejudice and unfairness to the accused person, and there.f ore constitutes the maintenance of the proceedings an abuse of .process, there can be no public interest in requiring that person to submit to the unfair trial which must result.

It is not unfair that persons reasonably suspected of committing offences are brought to trial. It will only be in exceptional circumstances that the interest of the community in achieving that end will be outweighed by delay, even gross delay. An

apparent lack of cogency in the prosecution case would favour the grant of a stay though in most cases the relative strength of the case will not be apparent until the case has been fully presented.

Nevertheless, the concept of "presumptive prejudice" has given rise to suggestions that the law recognises a right to a speedy trial. However, in Jago v District Court (NSW) (1989) 168 CLR 23 the existence of any general right to a speedy trial was denied. The jurisdiction to stay proceedings as an abuse of process was, however, affirmed. The appeal to the High Court arose out of an application to stay proceedings in the District Court coming on for trial in February 1987 in respect of alleged fraud committed between 1976 and 1979. An application for a permanent stay had been refused by the trial judge.

Mason CJ, at 31, made these comments upon the nature of the power to grant a stay:

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.

Thus all other means reasonably open should be explored to alleviate the effect of excessive delay before resorting to the use of the power to stay proceedings.

The concept of "presumptive unfairness" was subjected to some qualification. At 33, his Honour said:

... 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 . . . 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.

In most cases, that process involves balancing a consideration not only of.the length of the delay but also of the reasons for it, the accused' S responsibility for asserting his rights and, of course, the prejudice suffered by the accused. It is plain from Mason CJ's reasons that the nature and quality of the prejudice to the accused and the extent to which it can be lessened or alleviated in the course of the trial is of fundamental significance.

Brennan J also held that no right to a speedy trial is recognised at common law. However, abuse of process is another matter. A stay has been regarded as warranted to ensure a committal proceeding is held or where proceedings have been brought without reasonable grounds. Usually the stay is conditional or temporary. His Honour recognised the temptation to grant a

permanent stay where serious delay has occurred. He concluded,

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.

It may be added that the same considerations would also apply to serious delay by an alleged victim of crime in reporting the allegation to the proper authorities.

Deane J also suggested that the presumptive unfairness resulting from substantive delay did not suffice to render proceedings liable to be stayed, saying at 55-6, that:

... the burden of criminal proceedings even where

intensified by [undesirable] 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.

Factors giving rise to such prejudice as to render a trial necessarily unfair are various. They may include a failure by the prosecution to reveal particulars of its case or concealment of matter relevant to the case of the accused. Even there, the prejudice must be ineradicable by means falling short of a permanent stay. In his Honour's opinion, the long delay, though it was not satisfactorily explained, was not enough to require

a permanent stay.

Toohey J rejected, in not dissimilar terms, the notion that mere delay, unless so extreme as to remove the possibility of a fair trial, will justify a permanent stay of proceedings. That result would be "uncommon". To warrant a stay, it must be "manifest" that prejudice to the accused has arisen.

Gaudron J delivered a concurring opinion. Her Honour observed,

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 aamage, 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

prejudice1'

Accordingly, Jaqo v District Court (supra) establishes that, where delay is the main ground of an application for a stay, not only must the delay be unreasonably imposed on the accused but also that additional prejudice apart from "presumptive prejudice" be identified. It is then incumbent on an applicant for a stay to persuade the court that no remedy less than a permanent stay of proceedings will prevent such unfairness to the accused and that the proceedings will be an abuse of process unless stayed.

In R v Meskers (unreported, Criminal Court of Appeal, New South Wales, Priestley JA, Wood and Finlay JJ, 13 June 1991), a stay was held to have been properly refused where sought on the ground

of delay. The applicant also faced a tactical dilemma whether or not to reveal his earlier conviction for sexual assaults on -his own daughter, so as to impute to his daughter a motive for lying about events alleged by the complainant and to suggest that his daughter and the complainant had collaborated in concocting a version of those events. Wood J, delivering the main judgment, noted that such an attack on the credit of the complainant and his own daughter "may have involved courageous advocacy1' on behalf of the appellant. However, the tactical decision made to take a safer line of defence did not indicate that the trial would be unfair. That consequence arose from the appellant's own earlier misconduct. His Honour concluded, at 11:

No particular problem connected with the passage of time between the alleged offences [nearly six years] and the complaint was identified, beyond the usual difficulties of recollection, and the faint possibility depending on the establishment.of a more precise time frame, of showing that they could not have occurred. No witness had been lost and no special prejudice was identified. No suggestion was made that the Crown law authorities had deliberately, or in bad faith, delayed the matter, or had otherwise acted unfairly in bringing the appellant to trial.

Save that the delay here was about eight years rather than six years, the present can be assimilated to that in Meskers (supra).

In R v Glennon (1992) 173 CLR 592 the Court of Criminal Appeal (Victoria) had, by majority, ordered a stay of proceedings in a case involving sexual offences by a priest. The priest had been the subject of comment on Melbourne radio programs. The presenter, one Derryn Hinch, had referred to prior convictions of the priest. That certainly prejudiced the respondent's trial.

Hinch was imprisoned for his contempt. The offences were alleged to have occurred between 11 and 14 years before the trial. The pre-trial publicity had been vitriolic and sustained but had occurred two and a half years before the trial sought to be

stayed

Mason CJ and Toohey J, in the course of their joint judgment, accepted that it was possible that jurors, during the trial, would remember the publicity or be reminded of it by others. However, it could not be concluded that the jury would disregard the instructions of the trial judge and so fail to deliver a true verdict.

Brennan J agreed that it was not enough to show an identifiable risk to the integrity of the trial process. That did not render a trial necessarily unfair. Dawson J agreed with Brennan J.

Deane, Gaudron and McHugh JJ dissented, regarding the deluge of prejudicial publicity as extreme 'and singular. Their Honours considered that, as a result, a trial would have been necessarily unfair.

Nevertheless, it is clear from the majority judgment that where prejudice to the accused is the relevant issue, the existence of ineradicable prejudice must affirmatively appear. It is not enough that there be a risk of its existence.

A similar approach to that taken by the majority in Glennon

(supra) can be discerned in the advice of the Privy Council in

Tan v Cameron [l9921 2 AC 205.

Abuse of process may, of course, arise from the bringing of unfounded, or weakly supported, allegations for a collateral purpose: see Williams v Spautz (1992) 174 CLR 509.

In Walton v Gardiner (1993) 177 CLR 378, the majority of the High Court upheld a permanent stay of disciplinary proceedings arising out of the Chelmsford affair. Mason CJ, Deane and Dawson JJ (Brennan and Toohey JJ dissenting) held that inability to conduct

a fair trial by reason of delay, improper purpose or ineradicable prejudice are not the sole grounds warranting a stay to prevent abuse of process. Their Honours commented at 392-3:

The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them. Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.

2 1

In significant respects the disciplinary proceedings in question duplicated the previous criminal and civil proceedings earlier taken and long since disposed of.

Such earlier proceedings need not have been curial. It may be vexatious to bring up for trial, without some material alteration in the known facts, an allegation that had been investigated by proper authorities many years before and deliberately not prosecuted. The person accused in that context might well have justifiably assumed that, in the absence of a material change in

circumstances, the matter had been concluded. It would not be such a material change that the climate of public opinion had been perceived by the proper prosecuting authorities to have changed.

However, whilst a wide view should be taken of the power of courts. to prevent abuse of their process, it is clear that the mere antiquity of allegations will not suffice as the sole reason for exercising that power. Of course, by reason of that delay, identifiable cause warranting a stay may come into existence.

In R v VPH (unreported, Criminal Court of Appeal, New South Wales, Gleeson CJ, Newman and Sully JJ, 4 March 1994), the appellant had been charged with multiple sexual offences against children. The offences had allegedly occurred in 1963 and 1964. The appellant was not made aware of the allegations until 1988. There had been significant adverse publicity in relation to the

allegations.

A stay was refused in August 1993..

The delay between the date of the alleged offences and their prosecution was not a result of any lapse on the part of prosecuting authorities, save for one period of nine or ten months.

It was submitted that the delay, clearly in itself extreme, had allowed certain testimony to be lost to the appellant. That was accepted as a significant disadvantage to the defence. However, Gleeson CJ noted that such a disadvantage might occur even without undue delay.

In any event, the trial judge could explain, if the need arose, the absence of an apparently material witness who had become unavailable. Similarly, the absence of medical and other records could be so explained that the trial of the appellant might nevertheless proceed fairly.

Similarly, in G v Medical Board of the ACT (unreported, Federal Court of Australia, Gallop, Neaves and Ryan JJ, 1 September 1994), the Court (Gallop J dissenting) upheld a decision of Higgins J refusing a stay of disciplinary proceedings in respect of sexual assaults alleged to have occurred some 20 to 30 years earlier.

There was in that case, as in R v VPH (supra) , apparent prejudice arising from loss of contemporaneous records. That had, however, to be balanced against the public interest in ensuring the punishment of criminal conduct whenever committed. It could not

be asserted confidently that the disadvantage to the defendant

arising from the lack of records would result in unfairness.

That public interest must also embrace and consider the interests of persons who complain of being the victims of crime or other wrongful conduct. T-hey are entitled to have their complaints seriously examined and, if appropriate, pursued.

The latter qualification is important for it is not always possible to pursue an allegation, however vehemently propounded. It may be inadequately supported by objective evidence. It may, for other reasons, notwithstanding the public interest in the punishment of wrongdoers, be impossible fairly to pursue the allegation.

Conclusions suggestion that prosecting authorities have contributed to that delay. There was no prior investigation leading to an expectation by the respondent that he would not be prosecuted. There is no apparent improper purpose in the institution or continuance of the proceedings.

Although the evidence of 'the complainant is, relevantly, uncorroborated, it is not possible to conclude that the prosecution is foredoomed to failure. Further, unfairness arising from the lack of corroboration may well be -alleviated by proper directions at trial.

Moreover, although the allegation is not one of violence or repetition, it would, if proved, have been a serious breach of a position of trust. It is alleged to have caused serious ongoing psychological harm to the complainant. It is certainly not so trivial as to be vexatious or oppressive now to pursue it.

It has been objected that prejudice to the respondent will inevitably prevent a fair trial. That was the view of the primary judge. However, that view, on analysis, was based purely on the "presumptive prejudice" arising from the length of delay and the consequential lack of precision as to the date of the offence alleged.

This was said to have been aggravated by the fact that police had, whether properly or nbt, obtained a copy of the statement given by the respondent to his legal advisers.

With due respect to that view, shared by the primary judge, it cannot be said that any element of unfairness has been introduced by the circulation of that statement unless it be accepted that unlawful or unfair means had been employed to obtain it. As it happened, insofar as it might have been unfair to burden the respondent with the unintended effects of an effort to justify himself to friends, the Crown had, so far as it could, denied itself the knowledge of, or the use of, that statement.

Unless and until the trial progresses it cannot be said that any further step to protect the accused needs to be taken. Indeed,

even if the statement had been obtained improperly it would still be possible to reduce to an acceptable degree any prejudice resulting from its circulation.

It follows that there was no sufficient basis for his Honourls order. The prejudice to the respondent, either present or presumed, was not enough to require the drastic and exceptional remedy of a permanent stay.

The appeal should be allowed and the order appealed from set aside.

I certify that this and the 24 preceding pages are a true copy of the Reasons for Judgment of Ryan and Higgins JJ.

Associate: P-

Dated :

19 June 1995

Counsel for the Appellant:	Mr G Richardson
Solicitors for the Appellant:	Director of Public Prosecutions
Counsel for the Respondent:	Mr P Hastings
Solicitors for the Respondent:	Snedden Hall & Gallop
Date of Hearing:	11 April 1995
Date of Judgment:	19 June 1995

[1995] FCA 1178

19 Jun 1995