Jago v District Court of NSW | 12 October 1989

ON 12 OCTOBER 1989, the High Court of Australia delivered Jago v District Court of NSW [1989] HCA 46; (1989) 168 CLR 23 (12 October 1989).


Superior Courts “possess an inherent power to prevent their processes being used in a manner which gives rise to injustice”.

The inherent jurisdiction of the Superior Courts empowers them to order a permanent stay of proceedings to prevent an abuse of process. The power is to be exercised with fairness as the “touchstone”: per Mason at 31.

A permanent stay of proceedings will only be ordered in an “extreme case”: Per Mason CJ at 34.

Per Mason CJ at 33-34:

“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. The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused… In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare…
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’…Where delay is the sole ground of complaint, an accused seeking a permanent stay must be ‘able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute’…”

It is fundamental to the legal system that an accused be given a fair trial according to the law. The accused has “a right not to be tried unfairly or as an immunity against conviction otherwise than after a fair trial.”: per Deane at 56-57.

The five main considerations in determining whether or not proceedings should be stayed on the grounds of unfair delay are, per Deane J at 60:

  •  “the length of the delay”
  • “reasons given by the prosecution to explain or justify the delay”
  • “the accused’s responsibility for and past attitude to the delay”
  • “proven or likely prejudice to the accused”
  • “the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.”

Legal Helpdesk

Peter O’Grady, Lawyer
BA, LLB, Grad Cert Leg Prac, Acc Spec
Principal Solicitor, Legal Helpdesk