The Criminal Practice Rules 2022 do not use the phrase “abuse of process”, but they build a structure around the two things a stay application usually rests on: delay and unfairness.
Constitution section 37
(3) The right of a person charged with an offence to be afforded a fair hearing, within a reasonable time by an independent and impartial court — quoted in Order 1 Rule 2 as the object of the whole Rules.
(14) In the event that the trial of a person is not commenced within four months of the date on which he was committed for trial, a detailed report concerning the case shall be made by the Chief Justice to the Minister responsible for the National Legal Administration.
(15) Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law.
Section 155(3)(a): the National Court has an inherent power to review any exercise of judicial authority. Section 155(4): both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
The Rules recognise the Court’s control of its own proceedings expressly. Order 8 Rule 8(2) allows orders limiting public access or publicity pursuant to the inherent power of the Court to control its own proceedings.
Order 2 Division 8
Rule 21 — the purpose of the Division is to provide a system for facilitating compliance with the reporting obligations of the Chief Justice under s 37(14) of the Constitution.
Rule 22 — each Judge with administrative responsibility for a criminal case list shall by the tenth day of each month, apart from January, compile a list of each criminal case on that list in which the trial has, as at the last day of the preceding month, not commenced within four months after the date of committal for trial, in Form 18, and forward the list to the Chief Justice.
Rule 23 — the Chief Justice may, if considered appropriate, forward any of those reports … to the Minister for Justice pursuant to section 37(14).
Passing four months from committal does not entitle an accused to a stay. It triggers a reporting obligation, and it identifies the case in a monthly Form 18 list going to the Chief Justice.
But it is significant evidence on any application founded on delay, and it is a matter the accused can point to. Note also that in fraud and corruption cases Order 4 Rule 8(3) requires the directions hearing to fix the date, time and venue of trial to take place within 4 months from the committal.
Section 552 of the Code
Order 6 Rule 7 — an application under s 552 of the Code to be brought to trial may be made orally or in Form 28.
Rule 8 — if the Court accepts the application, it shall make an order, in Form 29, to clarify the status of the proceedings and the rights and obligations of the accused and the State.
Rule 9 — where the circumstances in s 552(3) appear to apply and the accused indicates an intention to apply for bail, the Court may hear an oral bail application or may direct that an application for bail be made in writing, and may make an order in Form 30.
Rule 10 — where s 552(4) appears to apply, the Court shall, after hearing the parties, make an appropriate order in Form 31.
Other routes in the Rules
Quashing the indictment — Order 2 Rule 17, under sections 534(2) or 558 of the Criminal Code Act (Chapter 262), made after presentation … and before pleading to the charge.
Demurrer — Order 2 Rule 18, under section 567, in Form 15 supported by an affidavit of the accused.
Exclusion of evidence — a notice of objection in Form 37 at least 14 days before trial under Order 8 Rule 4, and determination on a voir dire under Rule 6.
Capacity to understand the proceedings — Order 2 Division 7 provides for an inquiry to discover whether the accused is capable of understanding proceedings and a finding on that question; Order 9 Division 1 deals with unsoundness of mind and insanity.
Order 7 gives the State three routes, each supervised by the Court —
Division 2 — a declaration under s 525 that the State declines to lay a charge, followed by an order of the Court.
Division 3 — nolle prosequi: informing the Court under s 527 that an indictment will not be proceeded with, followed by an order of the Court.
Division 4 — offering no evidence, where the Court shall then indicate whether the approach of the State is acceptable and, if it is not, shall make such orders as are considered necessary or appropriate, in the interests of justice, to progress the matter. See no-case submissions.
How to bring it
Where a CR file is open, an application may be made orally or by notice of motion, in those CR proceedings. Where none is open, it shall be made by originating summons in separate proceedings, unless a Judge directs otherwise.
Rule 8(1): where the manner or form of the procedure is not prescribed, a person may apply to a Judge for directions. Rule 8(2): a Judge may at any time, with or without application, give such directions for the fair and expeditious conduct of a case as are considered necessary or desirable in the interests of justice.
Sources
- Criminal Practice Rules 2022 — O 1 rr 2, 7, 8; O 2 rr 17, 18, Divs 7, 8; O 4 r 8; O 6 rr 7–10; O 7 Divs 2–4; O 8 rr 4, 6, 8; O 9 Div 1; Forms 15, 18, 28–31, 37
- Constitution — ss 37(3), (14), (15), 57, 155(3), (4)
- Criminal Code Act (Chapter 262) — ss 525, 527, 534(2), 552, 558, 567
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.