11. Permanent Stay of Criminal Proceedings (Vic)¶
Scope and currency
Cheat sheet · abuse of process · current to 13 August 2026
Starting point. There is no general power to stop a prosecution because it looks unfair; the court's power to stay is the power to protect its own processes from abuse, and a permanent stay is the remedy of last resort. Write it this way: "A permanent stay is a wholly exceptional intervention into the processes of the criminal law and is a remedy of last resort, to be granted only in exceptional circumstances, because the primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the court" (Jago v District Court (NSW) (1989) 168 CLR 23; Williams v Spautz (1992) 174 CLR 509, 529; Hermanus v The Queen (2015) 44 VR 335, 342). Work the gates below in order.
The decision sequence¶
GATE 1 Which court can grant the stay?
Where is the proceeding, and does that court have the power? → Supreme Court: the Court has inherent jurisdiction to stay proceedings that are an abuse of process, in order to protect the integrity of its own processes and to prevent injustice (Barton v The Queen (1980) 147 CLR 75, 96; Williams v Spautz (1992) 174 CLR 509, 518; Canning v The King [2024] VSCA 215; Burnell v The King [2024] VSCA 264). → County Court: as an inferior court of record of limited statutory jurisdiction the County Court has no inherent jurisdiction, but it has an implied power to control and supervise proceedings brought in its jurisdiction so as to protect its processes from abuse; that implied power is co-extensive with the inherent power of a superior court and is governed by the same common law principles (Kowalski v Bourne [2017] SASCFC 24; Doonan v McKay [2018] QCA 514; Hermanus v The Queen (2015) 44 VR 335; McDonald v The Queen [2016] VSCA 304). → Magistrates' Court — summary stream: the Court has an implied power to prevent its summary processes from being used as instruments of abuse, injustice or unfairness (Palmer v Magistrates Court of Queensland [2020] QCA 47, citing Williamson v Trainor [1992] 2 Qd R 572 and DPP v Shirvanian (1998) 44 NSWLR 129, 134–135). → Magistrates' Court — committal stream: the Court has no power to stay a committal proceeding, because a magistrate conducting a committal performs a statutory, administrative inquiry rather than exercising judicial power over a trial (Palmer v Magistrates Court of Queensland [2020] QCA 47, citing Grassby v The Queen (1989) 168 CLR 1). An accused who wants a committal stopped on abuse of process grounds must invoke the supervisory jurisdiction of the Trial Division of the Supreme Court (Walton v Gardiner (1993) 177 CLR 378).
GATE 2 Identify the category of abuse of process
Which of the recognised categories does the conduct fall into? The categories are not closed (Walton v Gardiner (1993) 177 CLR 378, 393; Jago v District Court (NSW) (1989) 168 CLR 23, 74; Williams v Spautz (1992) 174 CLR 509). → Improper or ulterior purpose: the proceeding was instituted or is maintained for a predominant purpose other than that for which the process was designed — collateral commercial advantage, extortion, or pressure to settle (Williams v Spautz (1992) 174 CLR 509, 520; Walton v Gardiner (1993) 177 CLR 378, 393). In this category the applicant does not have to show that an unfair trial will follow: the abuse lies in the wrongful initiation itself (Williams v Spautz; Hines v The King [2024] VSCA 168). → Unjustifiably oppressive or vexatious: the prosecution is relitigating a case or issue already disposed of, or the prosecution is "foredoomed to fail" or must "inevitably and manifestly fail" because of an absolute and incurable absence of admissible evidence on an essential element (Walton v Gardiner (1993) 177 CLR 378, 393; Porter v The King [2024] VSCA 127; R v Clark [2015] SASCA 15). → Inability to secure a fair trial: historical delay, loss of exculpatory evidence, or the death of a crucial exculpatory witness has made a fair trial impossible (Hermanus v The Queen (2015) 44 VR 335, 341–342; Green v The Queen [2017] VSCA 277). Go to Gate 3. → Investigative or State impropriety: the State has engaged in illegal, unlawful or seriously improper conduct in investigating, facilitating or prosecuting the offence (Ridgeway v The Queen (1995) 184 CLR 19; Moti v The Queen (2011) 245 CLR 456; Strickland v Director of Public Prosecutions (Cth) (2018) 266 CLR 325).
GATE 3 Apply the test — is there a fundamental, incurable defect?
Fundamental defect formulation (use this first). "To justify a permanent stay 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" (Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); Jago v District Court (NSW) (1989) 168 CLR 23, 34 (Mason CJ); R v Glennon (1992) 173 CLR 592, 605; Dupas v The Queen (2010) 241 CLR 237). Unacceptable injustice formulation. The court should stay criminal proceedings only if, having regard to all the circumstances, "the continuation of the proceedings would involve unacceptable injustice or unfairness, or if their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process" (Ballard v The King [2024] VSCA 26; Canning v The King [2024] VSCA 215; Burnell v The King [2024] VSCA 264). Balancing formulation. The test of fairness is "a weighing process involving a subjective balancing of a variety of factors and considerations", among them fairness to the accused, the legitimate public interest in having serious criminal charges determined, and the need to maintain public confidence in the administration of justice (Walton v Gardiner (1993) 177 CLR 378, 395–396; Subramaniam v The Queen (2004) 211 ALR 1; McDonald v The Queen [2016] VSCA 304). Delay-only formulation. Where delay is the sole ground of complaint, the accused must 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" (Clarkson v R [1987] VR 962, 973; Jago v District Court (NSW) (1989) 168 CLR 23, 34 (Mason CJ)). Counterweight to plead against you. There is a "powerful social imperative for those who are charged with criminal offences to be brought to trial" (Strickland v DPP (Cth) (2018) 266 CLR 325; Dupas v The Queen (2010) 241 CLR 237), and a stay "results in effect in a refusal to exercise jurisdiction" (Hermanus v The Queen (2015) 44 VR 335, 342; Newell v The King [2025] VSCA 160; Burnell v The King [2024] VSCA 264).
GATE 4 Historical offences — is the prejudice actual or merely speculative?
This is where most stay applications in historical sexual offence prosecutions are won and lost. → Delay alone: mere delay, even of several decades, is not of itself an abuse of process; delay in reporting child sexual abuse is common, highly explicable, and does not diminish the public interest in prosecuting serious crime (Aydin v The Queen (2010) 28 VR 588; Hermanus v The Queen (2015) 44 VR 335; McDonald v The Queen [2016] VSCA 304; Newell v The King [2025] VSCA 160). → Inherent difficulties of antiquity: the law contemplates that a historical trial will be attended by forensic disadvantage, and that disadvantage does not of itself justify aborting the trial (Hermanus v The Queen (2015) 44 VR 335, 343–344; R v Jacobi (2012) 114 SASR 227, 253; Bennett v The King [2024] VSCA 208). Those difficulties include the jury's difficulty in assessing childhood recollections now given "in the language of an experienced adult with all the possibilities of reconstruction and re-interpretation", the accused's difficulty in going back in time to recall, check and verify, and the loss of the opportunity to gather contemporaneous evidence, which frequently drives an accused to a bare denial. → Deceased witnesses and lost evidence: a trial does not become unacceptably unfair merely because documents are lost or witnesses have died, because the jury is routinely called upon to determine facts in less than perfect circumstances (R v Edwards (2009) 83 ALJR 717; McDonald v The Queen [2016] VSCA 304; Newell v The King [2025] VSCA 160). → The material assistance rule: to obtain a stay on the basis of a deceased witness the accused must prove that the evidence, had it been available, "would probably have materially assisted the defence case", demonstrating "probability, and not mere possibility" of incurable unfairness; lost evidence that is merely contextual or speculative will not do (Lucciano v The Queen [2021] VSCA 12; Hermanus v The Queen (2015) 44 VR 335; Newell v The King [2025] VSCA 160).
Historical-offence stay outcomes — the comparators to cite¶
| Case | Facts | Outcome and why |
|---|---|---|
| Green v The Queen [2017] VSCA 277 | Allegations 44–52 years old; foster parents (the exculpatory witnesses on the domestic environment and non-disclosure) had died; Social Welfare Department records wholly lost; complainant had severe memory problems. | Stay granted. The prejudice was "actual and substantial" rather than speculative and a fair trial was impossible. |
| McDonald v The Queen [2016] VSCA 304 | 30-year delay combined with an accused suffering advanced dementia. | Stay granted. A special hearing under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) would involve "incurable, oppressive and unacceptable unfairness" because the accused could neither participate nor instruct counsel. |
| Hermanus v The Queen (2015) 44 VR 335 | 39-year delay; the original 1999 police brief had been completely lost. | Stay refused. The prejudice was speculative only, and the judge had taken the appropriate lesser step of excluding highly prejudicial uncharged acts. |
| Newell v The King [2025] VSCA 160 | 35–40 year delay; a parent had died and school records were unavailable. | Stay refused. The exculpatory value of the lost material was speculative and the accused's memory of other events was intact. |
| R v Bauer [2018] HCA 40 | Decades of delay and a lost 2000 record of police interview. | Stay refused. A comprehensive forensic disadvantage direction was sufficient to secure a fair trial. |
| GATE 5 Can anything short of a stay cure the prejudice? | ||
| This gate defeats most applications, so meet it head-on. The court must refrain from granting a permanent stay unless satisfied that there are no alternative, lesser means of bringing about a fair trial (Williams v Spautz (1992) 174 CLR 509, 529; Jago v District Court (NSW) (1989) 168 CLR 23; Hines v The King [2024] VSCA 168). Trial-management and evidentiary rulings. The trial judge can remove obstacles to a fair trial by adjourning the proceeding, ordering separate trials, or making evidentiary rulings, including excluding technically admissible but highly prejudicial evidence such as uncharged acts (Hermanus v The Queen (2015) 44 VR 335; Jago v District Court (NSW) (1989) 168 CLR 23; Evidence Act 2008 (Vic) ss 135, 137). Forensic disadvantage direction. The common law direction in Longman v R (1989) 168 CLR 79 has been superseded in Victoria by s 61 of the Crimes Act 1958 (Vic), s 165B of the Evidence Act 2008 (Vic) and s 39 of the Jury Directions Act 2015 (Vic). Under s 39 the judge must direct the jury on forensic disadvantage if satisfied that the accused has experienced a "significant forensic disadvantage" because of the consequences of delay, and under s 39(3) the direction must inform the jury of the specific nature of the disadvantage and of the need to take it into account in deciding whether the prosecution has proved guilt beyond reasonable doubt (Judicial College of Victoria, Criminal Charge Book 4.8.1; Slater v The Queen [2021] VSCA 270). Statutory prohibitions on the direction. Under the Jury Directions Act 2015 (Vic) the judge must not tell the jury that lack of specificity is a "double-edged sword", and must not suggest that the delay also disadvantaged the complainant (Briggs v The King [2024] VSCA 80). The limit of directions — your best point in reply. "If a judge gives too many such directions, their impact on the jury would be correspondingly diminished" (Green v The Queen [2017] VSCA 277). |
GATE 6 If a permanent stay is not available, what lesser order is?
→ Temporary stay: appropriate where the court considers a permanent stay inappropriate but some relief is nevertheless necessary to ensure a fair trial (R v Seller; R v McCarthy (2015) 89 NSWLR 155; KN v R [2017] NSWCCA 249; Subramaniam v R (2004) 211 ALR 1). → Dietrich stay: a temporary stay of the indictment until an indigent accused charged with a serious offence is provided with legal representation (Dietrich v The Queen). → Conditional stay: a stay until the prosecution completes a specified step, such as staying an indictment until a committal proceeding is held (Barton v The Queen (1980) 147 CLR 75). → Adjournment or expedition: where the complaint is unreasonable delay, the primary remedy is to expedite or adjourn the trial rather than stay it permanently (Jago v District Court (NSW) (1989) 168 CLR 23, 36).
Currency trap — the Basha inquiry has been abolished (28 December 2025)
Older material (including Hermanus v The Queen (2015) 44 VR 335) treats a temporary stay to permit a Basha inquiry as a standard lesser alternative. Section 198C of the Criminal Procedure Act 2009 (Vic), inserted by the Justice Legislation Amendment (Committals) Act 2025 (Vic), now provides that "the common law procedure of an accused cross-examining a witness to enable the accused to adequately prepare and present a defence is abolished", and the note states that the provision abolishes the procedure of the kind attributed to R v Basha (1989) 39 A Crim R 337. The replacement pathways are s 198 (order for taking evidence from a witness before trial, "interests of justice": s 198(4)), s 198A (order for the accused to cross-examine a witness before trial in certain cases) and s 198B (limited preparatory cross-examination). Do not offer a Basha inquiry as an alternative to a stay in a 2026 answer.
GATE 7 Practice — how the application is run
Timing. The application should be made at an early stage of the proceeding, and ordinarily before the prosecution leads evidence, because its merits are usually independent of the evidence supporting the Crown case; but a premature application brought before the evidence is settled should be avoided (Lucciano v The Queen [2021] VSCA 12). Onus. The onus of satisfying the court that the proceeding is an abuse of process lies on the applicant, and it is "a heavy one" (Williams v Spautz (1992) 174 CLR 509, 529; UBS AG v Tyne (2018) 265 CLR 77; Hermanus v The Queen (2015) 44 VR 335, 342). Standard. The civil standard — the balance of probabilities — applies (Hermanus v The Queen (2015) 44 VR 335, 342). But it is an evaluation, not an item-by-item fact-finding exercise. The application "does not turn on whether the judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice"; it requires "a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay" (Hermanus v The Queen (2015) 44 VR 335, 342; Burnell v The King [2024] VSCA 264; Morton v The Queen [2024] VSCA 49). Evidence. Evidence is led by affidavit — typically from the instructing solicitor as to the specific exculpatory material that has been lost and the witnesses who are unavailable, and from medical experts as to the physical or mental decline of the accused (Bechaud v The King [2025] VSCA 306).
GATE 8 If the stay is refused, how do you get it before the Court of Appeal?
Characterisation. A refusal to stay is an interlocutory decision within s 3 of the Criminal Procedure Act 2009 (Vic) (Hermanus v The Queen (2015) 44 VR 335). The certification gate. Under s 295 of the Criminal Procedure Act 2009 (Vic) the accused must first apply to the trial judge for a certificate that the interlocutory decision is of "sufficient importance to the trial to justify it being determined on an interlocutory appeal" (s 295(3)(b)) and that it is in the interests of justice to do so (s 295(3)(a)). Review of a refusal to certify. If the trial judge refuses to certify, the accused may apply directly to the Court of Appeal for review of the refusal under s 296 of the Criminal Procedure Act 2009 (Vic). Time limits. Under s 298(1) the notice of application for leave to appeal must be filed within 10 days of the decision, reduced to 2 days if the trial has commenced or will commence within 10 days, subject to extension under s 313 (Supreme Court (Criminal Procedure) Rules 2017 rr 3.03, 3.04).
GATE 9 Standard of appellate review
→ The orthodox position: the decision has been treated as discretionary, so the appellate court will not intervene unless the discretion miscarried in the House v The King sense — the judge acted on a wrong principle, took an irrelevant matter into account, failed to take account of a material consideration, mistook the facts, or reached a result that is plainly unreasonable (House v The King (1936) 55 CLR 499, 505; Green v The Queen [2017] VSCA 277; Hermanus v The Queen (2015) 44 VR 335, 342; Ballard v The King [2024] VSCA 26). → The better modern view: the decision is more accurately characterised as a value judgment with only one legally permissible answer: a court cannot grant a stay without finding an abuse of process, and cannot refuse a stay once it has found an abuse of process that cannot be cured by other means, because if an uncured abuse is established the trial is necessarily unfair and a stay must be ordered (Ballard v The King [2024] VSCA 26; GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 263 CLR 237).
The four formulations at a glance¶
| Formulation | When you use it | Authority |
|---|---|---|
| Fundamental defect | Fair-trial cases — nothing the trial judge can do will relieve against the unfair consequences. | Barton (1980) 147 CLR 75, 111; Jago (1989) 168 CLR 23, 34; Dupas (2010) 241 CLR 237 |
| Unacceptable injustice / unjustifiable oppression | The Victorian Court of Appeal's standard current formulation, applicable across categories. | Ballard [2024] VSCA 26; Canning [2024] VSCA 215; Burnell [2024] VSCA 264 |
| Balancing of public interests | Where the competing interests must be weighed expressly — fairness, the public interest in prosecution, public confidence. | Walton v Gardiner (1993) 177 CLR 378, 395–396; Subramaniam (2004) 211 ALR 1 |
| Necessarily unfair | Delay-only applications where no specific prejudice can be identified. | Clarkson [1987] VR 962, 973; Jago (1989) 168 CLR 23, 34 |
| No unfair-trial requirement | Improper or ulterior purpose cases — the abuse is the wrongful initiation itself. | Williams v Spautz (1992) 174 CLR 509, 520; Hines v The King [2024] VSCA 168 |
Paste-ready propositions¶
• Opening the submission: "The applicant seeks a permanent stay of the indictment on the ground that its continuation would constitute an abuse of the process of this Court. The Court's power to grant that relief is not a power to review the Director's decision to prosecute; it is the power to protect the integrity of the Court's own processes and to prevent injustice: Barton v The Queen (1980) 147 CLR 75, 96; Williams v Spautz (1992) 174 CLR 509, 518."
• Framing the threshold: "The applicant accepts that a permanent stay is a remedy of last resort and is available only in exceptional circumstances, and that the onus of establishing an abuse of process rests on the applicant and is a heavy one: Williams v Spautz (1992) 174 CLR 509, 529."
• The fair-trial ground: "The applicant must demonstrate a fundamental defect going to the root of the trial, of such a nature that nothing the trial judge can do in the conduct of the trial can relieve against its unfair consequences: Barton v The Queen (1980) 147 CLR 75, 111; Jago v District Court (NSW) (1989) 168 CLR 23, 34."
• Meeting the directions answer: "The prosecution's answer is that a direction under s 39 of the Jury Directions Act 2015 (Vic) will cure the disadvantage. That answer fails here because the disadvantage is not one that can be described to a jury and then set off against the evidence; and because the utility of such directions is finite: Green v The Queen [2017] VSCA 277."
• The deceased witness point: "The applicant does not put the loss of [X] as a mere possibility. Had [X] been available, [his/her] evidence would probably have materially assisted the defence case, in that [specify]: Lucciano v The Queen [2021] VSCA 12."
• The evaluation point: "The Court is not required to be satisfied on the balance of probabilities as to any particular item of alleged prejudice. What is required is a judicial evaluation of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay: Hermanus v The Queen (2015) 44 VR 335, 342."
• Closing: "For those reasons the continuation of this proceeding would involve unacceptable injustice or unfairness, and would be so unfairly and unjustifiably oppressive as to constitute an abuse of process: Ballard v The King [2024] VSCA 26."
Statutes and provisions to have at hand¶
Procedure and appeals: Criminal Procedure Act 2009 (Vic) s 3 (definition of interlocutory decision), s 295 (certification), s 296 (review of refusal to certify), s 298(1) (10 days / 2 days), s 313 (extension of time), s 198 (pre-trial taking of evidence), s 198A, s 198B, s 198C (abolition of the Basha procedure); Supreme Court (Criminal Procedure) Rules 2017 rr 3.03, 3.04. Directions and evidence: Jury Directions Act 2015 (Vic) s 39; Crimes Act 1958 (Vic) s 61; Evidence Act 2008 (Vic) ss 135, 137, 165B. Fitness: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Currency watch¶
• 28 December 2025 — the Justice Legislation Amendment (Committals) Act 2025 (Vic) commenced. Committal hearings are unavailable for sexual offence, family violence offence and stalking charges, the Basha procedure is abolished (CPA s 198C), and the pre-trial evidence regime in CPA Div 3A (ss 198–198B) replaces it. Matters with a filing hearing before 28 December 2025 continue under the former framework.
• 2023 — GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 263 CLR 237 recast the permanent stay inquiry away from an open-ended discretion; treat pre-GLJ statements that the decision is "discretionary" with care and plead the Ballard value-judgment characterisation in the alternative.
• Not covered by the source notes — the availability of a stay of a summary proceeding on the ground of adverse pre-trial publicity, and the interaction of the stay power with the Charter of Human Rights and Responsibilities Act 2006 (Vic), are not addressed in the source material. Verify separately before relying.