What is a ‘Stay Application’ in Criminal Cases?

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Poppy Morandin.

Scott Morrison’s apology to alleged victims of sexual harassment and assault in Parliament could have serious implications for the trial concerning Brittany Higgins and her alleged rapist. 

Morrison specifically named Ms Higgins in the apology commenting: “And I particularly want to acknowledge Ms Brittany Higgins, whose experience, and more importantly her courage, is the reason why we are all here today, and I want to thank her for that.”

“I am sorry, we are sorry, I’m sorry to Ms Higgins, for the terrible things that took place here…the place that should’ve been a place of safety and contribution, turned out to be a nightmare…but I am sorry for far more than that, I’m sorry to all those who came before Ms Higgins and endured the same, but she had the courage to stand, so here we are.” he continued. 

Ms Higgins and other advocates were present in Parliament during the apology. 

Solicitor Warwick Korn, who is acting for the former Liberal staffer, Bruce Lehrmann, who has been accused of raping Ms Higgins, has labelled the apology “a disgrace” and “extraordinarily prejudicial”.

A spokesperson from the Primer Minister’s office has sought to clarify the comments, stating that the apology was directed at: “the many terrible experiences Ms Higgins has detailed during her time working at Parliament House and was by no means a reflection on the matters before a court”.

Criminal Defence Lawyers Australia, spoke with one of our instructed criminal defence barristers’, Mr Wali Shukoor about this current issue.

“Aspects of the Prime Minister’s apology in respect of Ms Higgins were most regrettable. It was arguably open to the Prime Minister to apologise in a very specific and nuanced way, perhaps limited to the poor institutional response to her allegations, but unfortunately the Prime Minister did not express himself in such a careful and limited way. 

“To the contrary his wide-ranging apology is capable of being interpreted, at least in part, as pre-emptively, and most inappropriately, signalling the guilt of the accused.” commented Mr Shukoor. 

Bruce Lehrmann, 26, has been charged with sexual intercourse without consent over the alleged incident in the office of the former defence industry minister, Linda Reynolds. 

Ms Higgins was working as a media adviser with the then-defence industry minister. 

She alleges that on March 23, 2019, after workplace drinks, a male colleague offered to drop her home in a taxi. 

Instead, however, it is alleged that she remembers entering an office and lying down.

She claims waking up half-dressed and ‘mid-rape’, before urging the accused repeatedly to stop.

Although Ms Higgins did speak with officers soon after the incident, she ultimately decided not to pursue a formal complaint at the time, out of fear of jeopardising her employment. 

It has been uncovered that many members of Parliament were notified of the offence at the time. 

Ms Higgins decided to make a formal complaint, which sparked a lengthy investigation by the Australian Federal Police. 

Lehrmann was eventually charged and was committed for trial in November 2021. 

A tentative date of June 6, 2022 was provided with the trial set to take between three to four weeks.

However, due to the Prime Minister’s comments, Lehrmann’s lawyers have indicated that they may argue for a “stay” of the trial due to the apology. 

“An accused who maintains his innocence, is presumed innocent, is scheduled to face jury trial this year, and whose guilt or innocence under our system, can only be determined through the judicial process. 

“Such comments, made by the leader of the nation, a person in a position of great authority, are arguably highly prejudicial to the accused’s defence as they are capable of influencing potential jurors and in turn risking the accused’s right to a fair trial.” summarised Mr Shukoor. 

Notably, there is no current application before the court to argue for a stay of proceedings.

What is a ‘Stay Application’ in Criminal Cases?

A successful stay application could see the trial delayed or aborted indefinitely.

“What steps, if any, will be taken by the legal representatives for the accused in this case is of course a matter for them in consultation with their client. Generally, however, in cases where an accused risks an unfair trial, consideration can be given to bringing an application to stay proceedings, either temporarily or, in more extreme cases, permanently. 

“Should such an application be brought by the accused in this case, and should it be successful, it would seem that any good done by the Prime Minister’s apology in Parliament will be far outweighed by the damage caused by his remarks.” noted Mr Shukoor. 

A stay application refers to the statutory power of the court to stay (‘cease’), by order, any proceedings before the court, either permanently or until a specified day. 

In 2020, accused murderer Chris Dawson, was granted a temporary stay in proceedings, largely due to publicity associated with a podcast produced about the investigation into the murder of his ex-wife Lynette Dawson in 1982. 

NSW Supreme Court Justice Elizabeth Fullerton declined to grant a permanent stay, but granted a temporary one to, ensure “the accused’s fundamental right to a fair trial,”. 

This was particularly in light of the fact that the trial will be before a jury. 

In the case of Mr Lehrmann, in the ACT alleged sex crimes cannot be tried by Judge alone, and the trial must therefore proceed before a jury. 

Case law has held that a permanent stay is a remedy of ‘last resort’ and will only be used in ‘the most’ exceptional circumstances, where a trial would create such oppressive fairness incapable of being overcome, that it would amount to an abuse of process (Jago v The District Court of New South Wales and Ors [1989] HCA 46). 

With respect to prejudicial media publicity, Dupas v The Queen [2010] HCA 20 held that extensive pre-trial publicity is often common in cases involving ‘heinous acts’ and will not necessarily result in a stay being granted. However, it further explored that there may be extremely rare cases in which a sustained media campaign may give rise to an apprehended defect in a trial is “of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences.”

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