Judgment No. CCZ 13/2015 15
Const. Application No. CCZ 56/13
the proceedings would be ‘so unfairly and unjustifiably oppressive’ as to
constitute an abuse of process”.
[42] The power to stay proceedings permanently may be exercised:
“where either the foundation of the prosecution or the bringing of the accused
to justice is tainted with illegal action or gross violation of the rights of the
individual making it unacceptable for justice to embark on its course” ICC 01/04-01/06-772, (Appeals Decision) para 30-31, The Prosecutor v Thomas
Lubanga Dyilo (International Criminal Court), 14 December 2006.
[43]
In Attorney General’s Reference (No.2 of 2001) [2003] UKHL 68, Lord Woolf
stated:
“... if there has been prejudice caused to a defendant which interferes with his
right to a fair trial in a way which cannot otherwise be remedied, then of
course a stay is an appropriate remedy. But in the absence of prejudice of that
sort, there is normally no justification for granting a stay.”
[44]
In Police v Sherlock 2009 SASC 64, a decision of the Supreme Court of South
Australia, the court cited with approval remarks that:
“The justification for staying a prosecution is that the Court is obliged to take
that extreme step in order to protect its own processes from being used for
purposes alien to the administration of criminal justice under law. It may
intervene in this way if it concludes from the conduct of the prosecutor … that
the Court processes are being employed for ulterior purposes or in such a way
… as to cause improper vexation and oppression. The yardstick is not simply
fairness to the particular accused. It is not whether the initiation and
continuation of the particular process seems in the circumstances to be unfair
to him. That may be an important consideration. But the focus is on the misuse
of the Court process by those responsible for law enforcement. It is whether
the continuation of the prosecution is inconsistent with the recognised
purposes of the administration of criminal justice and so constitutes an abuse
of the process of the Court.”
The Court further added that:
“the power will be used only in most exceptional circumstances to order that a
criminal prosecution be stayed”.
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