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Abuse of Judicial Process in Criminal Proceedings1 ‘Fundamentals of Private Practice’. Law Society of Fiji Conference 2015, Suva, Fiji. September 2015 ABUSE OF JUDICIAL PROCESS IN CRIMINAL PROCEEDINGS1 Stephen Lawrence2 1 An earlier version of this paper was presented at the ‘Reasonable Cause CLE’ in Sydney on 15.09.2012. www.reasonablecause.net.au. 2 Barrister, Sir Owen Dixon Chambers, Sydney. 1 Table of Contents INTRODUCTION ........................................................................................................ 4 What is Abuse of Process .................................................................................... 5 Categories of Abuse of Process in the Criminal Law ........................................ 7 Abuse of Process Generally in the Civil Law ................................................... 10 Abuse of Process and Constitutional Context ................................................. 12 Legal Character of the Power to Prevent an Abuse of Process ...................... 16 The Remedies for an Abuse of Process in Criminal Proceedings .................. 18 An Order for a Stay Of Proceedings .................................................................................................. 18 Abuse of Process as a Basis for Excluding Evidence or Giving Certain Directions ............ 19 The Relevance of Abuse of Process to the Exercise of Discretion ........................................... 20 An Exceptional Power ............................................................................................................................ 20 THE CIRCUMSTANCES IN WHICH A COURT WILL ORDER A PERMANENT STAY OF CRIMINAL PROCEEDINGS .................................................................... 21 Proceedings Brought for a Collateral Purpose ................................................ 21 Proceedings Involving an Unfair Trial ............................................................... 22 Delay ........................................................................................................................................................... 22 Lost or Destroyed Evidence ................................................................................................................. 26 Publicity Prejudice .................................................................................................................................. 28 Counsel Reveals Guilt of Client in Open Court ............................................................................... 30 Deprivation of Committal Proceedings ............................................................................................. 31 Indigent Accused with no Legal Representation ............................................................................ 33 Failure of Disclosure .............................................................................................................................. 34 Accused Unfit to be Tried ..................................................................................................................... 35 Oppression .......................................................................................................... 36 Re Litigation of Matters Resolved in Earlier Proceedings ........................................................... 36 Prosecution in Breach of Amnesty from Prosecution .................................................................. 38 Avoidance or Manipulation of Statutory Time Limits .................................................................... 38 Controverting Earlier Verdicts ............................................................................................................. 40 When Filing of Nolle Prosequi an Abuse of Process ..................................................................... 42 Recommencement of Proceedings Following Filing of Nolle Prosequi/Withdrawal of Charges ..................................................................................................................................................... 43 Prosecution Relying on Same Allegations Following Granting of a Permanent Stay .......... 44 Prosecutions Doomed to Fail .............................................................................................................. 44 Undermining Public Confidence in the Administration of Justice ................. 45 Accused Brought Within the Jurisdiction In Circumvention of Applicable Extradition Arrangements or Otherwise Unlawfully ............................................................................................ 46 Breach of the Principle of ‘Speciality’ in Proceedings Following Extradition ........................ 47 Entrapment ............................................................................................................................................... 48 Breach of Promise/Legitimate Expectation ...................................................................................... 52 Police Misconduct at the Investigatory Stage ................................................................................. 60 Illegal Recording of Accused by Private Persons .......................................................................... 62 Breach of International Law ................................................................................................................. 62 Matters Held Not to Amount to an Abuse of Process ...................................... 63 Witness Payments .................................................................................................................................. 63 Operation of Special Measures at Trial Pursuant to Legislation ................................................ 65 APPLYING FOR A TEMPORARY OR PERMANENT STAY OF CRIMINAL PROCEEDINGS ....................................................................................................... 66 Venue ................................................................................................................... 66 2 Onus ..................................................................................................................... 68 Standard .............................................................................................................. 68 Evidence .............................................................................................................. 69 Relevant Evidence to Prove the Facts Neccessary........................................................................ 69 From the Solicitor ................................................................................................................................... 69 From the Applicant ................................................................................................................................. 69 Disclosure ................................................................................................................................................. 71 Court Rules .......................................................................................................... 71 Appealing a Refusal ............................................................................................ 72 Subsequent Applications Upon a Change of Circumstances ......................... 74 3 INTRODUCTION 1. Lawyers will be aware of the concept of abuse of process and the remedy of a permanent or temporary stay of proceedings. 2. Courts have long held they have the power to unilaterally terminate criminal prosecutions that inflict unfairness or tend to undermine the legitimacy of the judicial branch of government. Such prosecutions are considered to be an abuse of process and can be terminated, either permanently or conditionally, by way of a stay of proceedings being ordered on the charge or indictment. 3. The purpose of this paper is to assist lawyers in identifying when an abuse of process may be occurring in a criminal prosecution, when an application for a stay might be appropriate and how to make such an application. 4. The paper analyses a mixture of Fijian, Australian, New Zealand, United Kingdom and international case law. Abuse of process is entirely judge made law, uncodified by statute, and it is only through understanding case law that one can understand the doctrine. 5. Part one of the paper overviews the concept of ‘abuse of process’ and analyses what the courts have regarded as the relevant values, principles and other considerations to balance in determining whether such an abuse is occurring. 6. Part one necessarily contains an analysis of various provisions of the Constitution of the Republic of Fiji and how they might impact upon a court’s consideration of whether an abuse of process has occurred and whether a stay of proceedings should be granted. 7. Part two of the paper attempts to set out in an accessible form a summary of the recognized circumstances when a judicial officer can order a stay of proceedings on the basis of an abuse of process. This part of the paper divides abuse of process into various categories which have been posited in the case law. 8. Part two must however be read with the caveat that the categories of abuse of process are not closed and courts will apply the doctrine flexibly and as required and without necessary reference to previous case law dealing with a particular factual circumstance. It should also be read with the caveat that the particular constitutional context of Fiji may mean that the existing categorization is inaccurate in some instances. 9. Part three of the paper
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