Permanent Stays

In order for a court to order a permanent stay of proceedings, there must be a “be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences.”

In order for a court to order a permanent stay of proceedings, there must be a “be a fundamental defect going to the root of the trial which is of such a nature that nothing that a trial judge can do can relieve against its unfair consequences.” Needless to say, this is a high bar.

The application of a permanent stay has also been described as “a remedy of last resort, only used in most exceptional circumstances, where any trial would involve such oppressive unfairness, incapable of being overcome, that it would be an abuse of process.”

A stay essentially amounts to the court granting immunity from prosecution to the accused. It from time to time arises when misconduct by the state or its agents has made a fair trial impossible (see Strickland and Moti).

Whilst it is impossible that pre-trial publicity could make any trial unfair, this is unlikely (Dupas) and particularly so given the availability of judge alone trials.

However, circumstances may arise where the conduct of the investigating officers denies a defendant the opportunity to raise a defence (La Rocca).

The other main category is where the trial is “foredoomed to fail” as was (unsuccessfully) argued in Blackett.

Jago

Jago v District Court of NSW [1989] HCA 46

“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"”