HULL v DISTRICT COURT OF NEW SOUTH WALES [1988] NSWCA 71

HULL v DISTRICT COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MCHUGH and CLARKE JJA 18 February 1988, 11 May 1988

[1988] NSWCA 71

CRIMINAL LAW & PROCEDURE — abuse of process — stay of criminal trial sought — charges of supply and possession of cocaine — accused discharged at committal — ten months later ex officio indictment filed — further delay of two years to original date of trial — delay in supply of particulars — application for permanent stay — stay provided to co-accused but denied to claimant — Summons for relief — held (1) (by Kirby P and McHugh JA, Clarke JA contra) jurisdictional error shown on the part of the trial judge (Bell DCJ) authorises intervention by the Court; (2) (by the Court) But relief should in the circumstances be denied. (Per Kirby P) on the ground that no abuse of process was shown nor would the trial be unfair and the case was not so exceptional as to warrant a stay. Watson v Attorney-General for New South Wales (1987) 8 NSWLR 685 applied; (per McHugh JA) although the delay of two years after ex officio indictment was a prima facie breach of the accused's speedy trial right, as it occurred largely with the consent of the accused that breach was not made out nor was it shown that a trial now would be oppressive. Rutkowski & Ors v The Director of Public Prosecutions & Ors, unreported, CA, 25 March 1988 referred to; (per Clarke JA) on the ground that the trial judge had applied the correct test and no error had been shown.

Kirby P By the law of this State there is no enforceable legal right to a speedy trial whether constitutional or otherwise. See Jago v The District Court of New South Wales & Ors, unreported, CA, 10 May 1988. Accordingly, the claimant's summons for a stay of a criminal trial set down for hearing in the District Court on 22 August 1988 must be considered by reference to the principles for the granting of relief where the continuance of a criminal prosecution would amount to an abuse of process or where, having regard to the delay in the prosecution or other supervening events, a criminal trial would now be unfair.