A comprehensive report from Bill Thompson on the latest legal manoeuvre from Kathy Jackson and her legal team after her appearance (via videolink) in the County Court at Melbourne today.

I can't think of any way that the interests of justice would be served by permanently staying proceedings against Kathy.  

She should face the music.

UPDATE

This is from Victoria's Judicial College:

15.1 - Permanent Stays

1. A party should usually apply for a stay at an early stage of proceedings and before the prosecution leads evidence. While this is not mandatory, the merits of the application will usually be based on facts that are independent of the evidence supporting the Crown case (Edebone v Allen [1991] 2 VR 659).
2. A court may only grant a permanent stays in an "extreme case" where there is "a fundamental defect that goes to the root of the trial ‘of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences’" (Dupas v R (2010) 241 CLR 237; [2010] HCA 20; R v Glennon (1992) 173 CLR 592; [1992] HCA 16 per Mason CJ and Toohey J; Clark v R [2016] VSCA 96 at [17]).
3. The test for a permanent stay has also been expressed as:

   whether, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness (Walton v Gardiner (1993) 177 CLR 378 at 392; [1993] HCA 77).

4. A permanent stay is not a remedy to punish non-compliance with case management procedures. The trial process itself is equipped to deal with most issues that threaten the fairness of the trial, such as through adjournments or temporary stays, rulings on evidence and directions to the jury (Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; Barton v R (1980) 147 CLR 75; Mokbel v DPP (2008) 26 VR 1; [2008] VSC 433; Connelly v DPP [1964] AC 1254; Rona v District Court (SA) (1995) 63 SASR 223).
5. Similarly, it will be a rare case where the loss or inadvertent destruction of evidence will justify a permanent stay. A fair trial does not require that the prosecution and the accused are able to adduce all evidence that is relevant. The jury or a magistrate must reconstruct the relevant events on the evidence available, despite any loss of documents or death of witnesses (R v Edwards [2009] HCA 20; Hodder v Public Transport Authority [2009] WASC 293; Police v Sherlock (2009) 103 SASR 147; [2009] SASC 64; Wells v R [2010] VSCA 100; Wells v R (No 2) [2010] VSCA 294; Aydin v R (2010) 28 VR 588; [2010] VSCA 190).
6. In determining whether loss or destruction of evidence will render a trial unfair, the judge may consider how that loss of evidence would affect the conduct of the trial (Aydin v R (2010) 28 VR 588; [2010] VSCA 190).
7. Similarly, the fact that evidence was acquired illegally or improperly is not an independent basis for a stay. The correct approach to such an issue is to consider whether the evidence would be excluded and, if so, whether the proceeding is foredoomed to failure (Giurina v DPP [2017] VSC 289 at [41]).
8. While the power to grant a stay is a discretionary decision, the discretion only relates to determining whether there is an abuse of process. A court cannot grant a stay without finding an abuse of process and it cannot refuse to grant a stay after finding an abuse of process that cannot be cured by other means (R v Carroll (2002) 213 CLR 635; [2002] HCA 55 per Gaudron and Gummow JJ).
9. A court invited to permanently stay a proceeding must balance the following public interests factors:
   • the need to ensure that an accused receives a fair trial; and
   • the need to hear and determine charges for serious offences; and
   • the need to maintain confidence in the administration of justice (Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; R v Dupas (No 3) (2009) 28 VR 380; [2009] VSCA 202; Mokbel v DPP (2008) 26 VR 1; [2008] VSC 433; R v P, NJ (No 2) (2006) 174 A Crim R 1).
10. There is a substantial public interest in the court exercising its jurisdiction to determine whether a person charged with a criminal offence is guilty. A permanent stay interferes with that public interest and is equivalent to conferring immunity from prosecution. Fairness to the accused is, therefore, not the only factor bearing on whether to grant a permanent stay. Where the application for the stay is based on pre-trial publicity, the court is conscious that granting a stay would "recognise that the media has the capacity to render an accused unable to be tried" (R v Dupas (No 3) (2009) 28 VR 380; [2009] VSCA 202 at [62]-[63] per Nettle JA. See also Dupas v R (2010) 241 CLR 237; [2010] HCA 20 at [37]).
11. The seriousness and nature of the offences is a relevant matter to consider when balancing the competing public interests. There is a greater public interest in the fair prosecution of serious offences than for less serious offences (R v Clarkson [1987] VR 962).
12. The court should also consider the likely sentence or outcome if the accused is found to have committed the offences. For example, in the case of an elderly and frail offender charged with offences from over 40 years earlier, it might be that any sentence would be nominal. This will weigh against the public interest in the resolution of the charges (McDonald v R [2016] VSCA 304 at [44]).
13. While it is recognised that special hearings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 exist to address some of the unfairness that otherwise exists where an accused is not fit to be tried, there can be cases where the combination of the factors which led to the accused being unfit and other factors such as delay, loss of evidence and degree of cognitive impairment may combine to justify a permanent stay of proceedings. It is not appropriate to exclude the unfitness factors on the basis that the special hearing process is designed to address those (see McDonald v R [2016] VSCA 304 at [45] – [47] (per Redlich JA and Beale AJA (Ferguson JA contra)); R v Littler [2001] NSWCCA 173; Subramaniam v R [2004] HCA 51).
14. Instead, it is important to recognize that it will be a rare case where mental infirmity alone can support the grant of a stay (McDonald v R [2016] VSCA 304 at [45]; Subramaniam v R[2004] HCA 51).
15. Despite rapid advances in communications technology, and the associated ability for numerous members of the community to publicly comment on a case (even in extreme terms), the experience of the courts is that jurors still approach their task conscientiously. With appropriate directions, judges generally have confidence that jurors will decide cases on the basis of evidence in court, rather than on commentary made in mainstream media or on social media (Hughes v R (2015) 93 NSWLR 474; [2015] NSWCCA 330 at [89]-[71], [84]).
16. The categories of abuse of process are not closed. Earlier decisions can only provide a guide to the kinds of situations in which a court will act to prevent its process from becoming an instrument of injustice. So far, three broad categories have emerged:
    • proceedings that are commenced for an improper or ulterior purpose;
    • proceedings that are conducted in a vexatious or oppressive manner; or
    • continuation of proceedings would bring the administration of justice into disrepute (Moevao v Department of Labour [1980] 1 NZLR 464; Jago v District Court of NSW (1989) 168 CLR 23; [1989] HCA 46; PNJ v R [2009] HCA 6; Rogers v R (1994) 181 CLR 251; [1994] HCA 42).

     Last updated: 14 August 2017