ON 15 FEBRUARY 1999, the High Court of Australia delivered Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594 (15 February 1990).
http://www.austlii.edu.au/au/cases/cth/high_ct/168clr594.html
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ON 6 DECEMBER 1989, the High Court of Australia delivered Longman v R [1989] HCA 60; (1989) 168 CLR 79 (6 December 1989).
http://www.austlii.edu.au/au/cases/cth/high_ct/168clr79.html
Complaints of unlawfully and indecently dealing with or assaulting three girls under the age of 14 years were made against Longman (the appellant) at a time over 20 years after the alleged offences. At trial, the jury were told to consider the “relative credibility of the complainant and the appellant without either a warning or a mention of the factors relevant to the evaluation of the evidence”.
The High Court held that what the jury was told was not sufficient.
Per Brennan, Dawson and Toohey JJ at [30]:
“The jury should have been told that, as the evidence of the complainant could not be adequately tested after the passage of more than 20 years, it would be dangerous to convict on that evidence alone unless the jury, scrutinizing the evidence with great care, considering the circumstances relevant to its evaluation and paying heed to the warning, were satisfied of its truth and accuracy. To leave a jury without such a full appreciation of the danger was to risk a miscarriage of justice.”
The High Court ordered a retrial because the absence of a warning made the conviction “unsafe and unsatisfactory”.
Sydney, Australia
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ON 19 OCTOBER 1989, the Guildford Four were released from prison after their conviction was quashed by the Court of Appeal.
http://news.bbc.co.uk/onthisday/hi/dates/stories/october/19/newsid_2490000/2490039.stm
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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).
http://www.austlii.edu.au/au/cases/cth/HCA/1989/46.html
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:
Peter O’Grady, Lawyer
BA, LLB, Grad Cert Leg Prac, Acc Spec
Principal Solicitor, Legal Helpdesk
ON 9 FEBRUARY 1989, the High Court of Australia delivered Walton v R [1989] HCA 9; (1989) 166 CLR 283 (9 February 1989).
http://www.austlii.edu.au/au/cases/cth/high_ct/166clr283.html
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ON 5 OCTOBER 1988, the High Court of Australia delivered Hoch v R [1988] HCA 50; (1988) 165 CLR 292 (5 October 1988).
http://www.austlii.edu.au/au/cases/cth/high_ct/165clr292.html
Propensity evidence should be rejected if there is a reasonable possibility of concoction.
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ON 15 SEPTEMBER 1988, Michael and Lindy Chamberlain were acquitted by the Northern Territory Court of Criminal Appeal, who quashed their earlier convictions.
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ON 29 MAY 1985, the High Court of Australia delivered R v Chin [1985] HCA 35; (1985) 157 CLR 671 (29 May 1985).
http://www.austlii.edu.au/au/cases/cth/high_ct/157clr671.html
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ON 2 AUGUST 1984, the High Court of Australia delivered Lowe v R [1984] HCA 46; (1984) 154 CLR 606 (2 August 1984).
http://www.austlii.edu.au/au/cases/cth/HCA/1984/46.html
The case sets out the principle of due proportionality to be imposed by Australian courts when sentencing criminal offenders.
Whilst co-offenders do not have to receive the same sentence for the same offence, any discrepancy must not give the sense or appearance of their being an injustice done to the offender with the heavier sentence.
At 623, Dawson J (with whom WIlson J agreed) said:
“There is no rule of law which requires co-offenders to be given the same sentence for the same offence even if no distinction can be drawn between them. Obviously where the circumstances of each offender or his involvement in the offence are different then different sentences may be called for but justice should be even-handed and it has come to be recognised both here and in England that any difference between the sentences imposed upon co-offenders for the same offence ought not to be such as to give rise to a justifiable sense of a grievance on the part of the offender with the heavier sentence or to give the appearance that justice has not been done.”
The principle is an application of the fundamental principle of equality of justice. At 610, Mason J observed:
“Just as consistency in punishment — a reflection of the notion of equal justice — is a fundamental element in any rational and fair system of criminal justice, so inconsistency in punishment, because it is regarded as a badge of unfairness and unequal treatment under the law, is calculated to lead to an erosion of public confidence in the integrity of the administration of justice. It is for this reason that the avoidance and elimination of unjustifiable discrepancy in sentencing is a matter of abiding importance to the administration of justice and to the community.”
The parity principle only applies to co-offenders: per Gibbs CJ at 609, Mason J at 611 and Brennan J at 617-618.
Disparity may be an indicator of appelable error: per Brennan J at 617-618.
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ON 19 JUNE 1984, the High Court of Australia delivered R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 (19 June 1984).
http://www.austlii.edu.au/au/cases/cth/high_ct/154clr563.html
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