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Abstract: In a trial by judge and jury in a common law jurisdiction, one or more of three questions pertaining to delay may arise. First, to what extent can criminal proceedings be stayed as an abuse of the process of the court on account of delay? Secondly, what are the directions, if any, to be given by trial judges to juries about forensic disadvantage caused to the defence by delay? Thirdly, what are the directions, if any, to be given by trial judges to juries in respect of the complainant’s delay in reporting the alleged offending? This article compares the law of England and Wales and the law of Victoria, Australia, in respect of these three matters. The first of the three is regulated by the common law in both jurisdictions. While the second and third, too, are regulated by the common law in England and Wales, they are regulated in Victoria by detailed statutory provisions. The article demonstrates that, despite possible expectation, the approaches in both jurisdictions to all three matters are strikingly similar, and cautions against making assumptions in the absence of proper comparative inquiry.
Keywords: abuse of process; delay in criminal justice system; directions to jury; England and Wales; role of judge in criminal trial; role of jury in criminal trial; stay of proceedings; treatment of delay in criminal trial process; Victoria, Australia
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