Abuse of Process
'An abuse of process occurs when the process of the court is put in motion for a purpose which, in the eye of the law, it is not intended to serve or when the process is incapable of serving the purpose it is intended to serve...The purpose of criminal proceedings, generally speaking, is to hear and determine finally whether the accused has engaged in conduct which amounts to an offence and, on that account, is deserving of punishment...[I]t will generally be found in the use of criminal process inconsistently with some aspect of its true purpose, whether relating to the hearing and determination, its finality, the reason for examining the accused's conduct or the exoneration of the accused from liability to punishment for the conduct alleged against him.' Jago v District Court (NSW) (1989) 168 CLR 23, 47.
'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.' Moevao v Department of Labour [1980] 1 NZLR 464 at 482.
It may be an abuse of process where:
* A prosecution has been instituted for an improper purpose.
* The prosecution is oppressive: e.g. the prosecution is foredoomed to fail or where there is delay.
* There is an issue of double jeopardy.
* A nolle prosequi is entered in oppressive circumstances.
'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.' Moevao v Department of Labour [1980] 1 NZLR 464 at 482.
It may be an abuse of process where:
* A prosecution has been instituted for an improper purpose.
* The prosecution is oppressive: e.g. the prosecution is foredoomed to fail or where there is delay.
* There is an issue of double jeopardy.
* A nolle prosequi is entered in oppressive circumstances.
Improper PurposeThe proper purpose of prosecution is to obtain conviction: Williams v Spautz (1992) 174 CLR 509. Any other purpose will be improper. Where there may be both an improper and proper purpose the question that needs to be considered is whether the improper purpose is the predominant one.
Selective prosecutions are generally not improper (Inland Revenue Commission; Ex parte Mead [1993] 1 All ER 772 (QB). Improper purpose not found in R v Moti [2010] QCA 178 at [37]: where payments made by AFP to witnesses. This case is 'not one of abuse of process but, at the highest, one involving conduct of questionable wisdom "which falls short of establishing that the process of the Court is itself being wrongly made use of." Instead, its process is being used for what the High Court in Ridgeway described as its proper purpose: "to seek the conviction of someone charged with very serious offences." |
|