A permanent stay application is where a criminal trial is stayed because, in most applications of this nature, it is impossible for a fair trial to take place. It is a remedy of last resort and is used in the most exceptional or extreme circumstances. It is only ordered by a court where the proceedings are so unfair or unjustifiably oppressive that to proceed with a trial would amount to an abuse of process.
There are a number of categories or circumstances in which a permanent stay may be granted. However, these categories are not closed.
Delay
Delay between the date of the alleged offence and the date of the commencement of proceedings may constitute a ground for a permanent stay. However, delay in of itself is almost always not sufficient. Actual prejudice by reason of the delay must be shown. For example, records and documentary evidence may have been lost and key witnesses may have died due to the passage of time. For a permanent stay application to be successful, it must be shown that such missing material would have assisted in the defence of the accused, or alternatively, that the accused is seriously prejudiced by reason of its loss. However, an accused cannot advance an argument for a permanent stay based on delay if they are personally responsible for the delay in their prosecution.
Physical Health and Mental Capacity
The deteriorating health of an accused may also justify a permanent stay. This occurs where the health of an accused is so poor that it would be out of accord with common humanity and an abuse of process to continue with a prosecution. This often occurs in cases where a prosecution is brought years after the alleged offence, and consequently the accused is now elderly and suffering from a myriad of serious health issues.
Directions
Even if it is shown that there is significant prejudice to an accused, a permanent stay will not be granted unless such prejudice is incapable of being remedied by directions to a jury. For example, a Court may find that the Longman warning now enshrined in section 165B of the Evidence Act 1995 (NSW) is sufficient to ameliorate any prejudice.
Section 165B(2) states that:
If the court, on application by a party, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.
Subsection (7) states that:
For the purposes of this section, the factors that may be regarded as establishing a “significant forensic disadvantage” include, but are not limited to, the following—
(a) the fact that any potential witnesses have died or are not able to be located,
(b) the fact that any potential evidence has been lost or is otherwise unavailable.
Should you be facing a serious charge where there might be prospects of making an application for a permanent stay application, it is crucial you receive legal advice from an experienced lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney, NSW (02 9696 1361), Canberra (02 5104 9640), Perth (08 6255 6909) or Northern NSW (02 5552 1902) to make an appointment to speak to one of our lawyers.
