Area of Law – Practice and Procedure

An Article about Abuse of process – foredoomed to fail

ABUSE OF PROCESS – Foredoomed to fail
An application can be made to stay a matter on the basis that the case is so flawed that it is foredoomed to fail.

An example of that is where one is aware that the Prosecution have lost forensic evidence and the case was based on that evidence.

Some case law on the issue follows:

“Thus it has been long established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.”

Walton v Gardiner (1993) 177 CLR Mason CJ, Deane and Dawson JJ (at 393)

In Ridgeway Mason CJ, Deane and Dawson JJ held that where crucial evidence is excluded the result may be a stay. The rationale was explained at 40-41

“If… a ruling is made that evidence of the charged offence or of an element of it should be so excluded, it will be apparent that it would be an abuse of process for the Crown to proceed with the trial. The reason why that is so is not that the commission of the charged offence was procured by illegal conduct on the part of the police. It is that the proceedings will necessarily fail with the consequence that a continuance of them would be oppressive and vexatious. It is true that there is an appearance of artificiality in the distinction between an exclusion of all evidence and a stay of proceedings (65). There is, however, a significant distinction in principle between staying criminal proceedings on the ground that the proceedings in themselves constitute an abuse of process and staying further steps in the proceedings on the ground that, due to the effect of evidentiary rulings made in them, they must fail”

Ridgeway v The Queen (1995) 184 CLR 19

Categories of abuse of process are not closed
Ridgeway v The Queen (1995) 184CLR19 @74 – 74


Date: 01/09/2009