1. Charges 7 and 8 involve allegations of offending between December 1981 and late 1983, when TG, aged 12 or 13, was holidaying at the Braybrook home. The applicant penetrated her vagina with his tongue, and then placed his penis against the outside of her vagina.
2. Charge 9 relates to an incident during the same holiday. TG was asleep when the applicant allegedly took her out of bed and penetrated her vagina with his tongue. Charge 10 involves alleged conduct of a similar nature.
3. In 2010 or 2011 TG made a complaint to a relative that the applicant had sexually assaulted her when she was a child. Some years later, on 29 December 2022, TG was involved in a 'pretext' telephone conversation with the applicant, during which the applicant made a number of statements relied upon by the prosecution as admissions of sexual misconduct.

1. Charge 11 relates to a time between July 1982 and July 1984 when AC, aged between 13 and 15 years, was staying at the Braybrook home with TG. After a game of 'chasey', the applicant was holding AC and TG against a wall when he allegedly put his hand inside AC's underwear and placed his finger into her vagina.
2. Charge 12 relates to an incident at the Braybrook home as AC and the applicant watched television. The applicant allegedly touched AC's breasts over her clothing.
3. Charge 13 relates to an alleged incident at the Coolaroo property, when AC and the applicant were in the pool. The applicant swam under AC's legs and poked her vagina with a finger on the outside of her bathers. He later touched her vagina over her bathers.
4. Charge 14 relates to an alleged incident during the Christmas holidays when AC was aged 15 and was staying at the Braybrook home. The applicant and AC went swimming at Altona. He then took her to a quiet street in Sunshine and penetrated her vagina with his penis until he ejaculated.
5. Charge 15 relates to a period prior to AC turning 16, when she was staying at the Braybrook home. The applicant allegedly inserted his penis into AC's vagina and continued penetration until he ejaculated inside her.
6. Charge 16 relates to a time when FD was pregnant, and AC, who was 15, was staying at the Braybrook home. The applicant allegedly inserted his penis into AC's vagina and thrusted until he ejaculated inside her.
7. At some time when AC was aged between 16 and 17 and a half, she complained to her partner and her parents about the applicant's offending.

1. In the stay ruling, the judge noted that the applicant had submitted that continuation of the prosecution would be so unfairly and unjustifiably oppressive so as to constitute an abuse of process, or would otherwise involve an unacceptable unfairness or injustice, relying on the following 'grounds':

(i) the significant delay of more than four decades, a delay not attributable to the applicant;

(ii) the unavailability of highly relevant witnesses (including those proximate to, or in the vicinity of the alleged offending at the time of the alleged offence, and who may have given exculpatory evidence, or evidence that seriously undermined the allegations levelled against the applicant);

(iii) the loss and/or destruction of physical evidence;

(iv) the inherent unreliability of witness' recollections after 40-45 years;

(v) the inability to raise a defence or do anything other than offer a bare denial; and

(vi) the impropriety of an investigating official, who suggested offending by the applicant to the complainants CB and AC.

1. The judge disposed of the sixth ground first, stating that 'there is simply no evidence to which the Court's attention was drawn to substantiate this allegation'. With respect to the other five grounds, citing Buchanan,[2] Tuteru[3] and Hermanus,[4] the judge set out the principles that guide the decision to grant or refuse a permanent stay. We need not repeat them. None are controversial. The judge then said:

[52] In this case complaints were only made to police in recent years. As such there is no aspect of the delay in this case attributable to the accused man. Given the time, there is a lack of clarity about which other persons were present, or may have been nearby at various points throughout the alleged offending. However most witnesses are still alive and available. In some instances two of the complainants were present during alleged offending. There is no doubt that the memories of witnesses will have eroded over time. The reliability of the complainants' accounts will necessarily be considered by the jury. Physical evidence, such as the accused's employment records, which may have provided him an alibi, or used to test competing narratives are no longer available. The accused's ability to test potentially exculpatory evidence is significantly diminished. Whilst formal house plans may no longer be available, witnesses who lived in the relevant houses are available to describe the layout and how the space was used. These weighing factors go for and against the disadvantage that the accused will suffer.

[53] Appropriately, the prosecution concedes that a 'significant forensic disadvantage' direction[5] ought be given to the jury at trial. It will canvas the disadvantage suffered by the accused in relation to any unavailable witnesses; any absence, loss or destruction of physical evidence; the inability for [the applicant] to do anything more than offer bare denials; and unfairness to the accused should he give evidence.

[54] Counsel for [the applicant] submit that the cumulative effect of these considerations in addition to that of delay in cause (sic) the trial to be fundamentally compromised in a manner that cannot be remedied through the type of judicial direction I have outlined.

[55] More than 40 years have passed since this alleged offending. This delay was through no fault of the accused man. Allegations of historical sexual offending are common place in this Court. The charges are serious, and there is significant public interest in the just prosecution of such crimes.

[56] Appropriate judicial direction is available to instruct a jury in relation to the various issues I have outlined, which go a significant way to mitigate against the disadvantage that the accused man may suffer.

[57] There is nothing rare or exceptional about this case which justifies the remedy of a permanent stay. I refuse the application.

1. In her certification ruling, the judge said (among other things):

[10] My ruling in respect of the application to grant a stay of proceeding does not concern the admissibility of evidence. Therefore, I must consider whether the decision is attended by sufficient doubt.

[11] There has been recent consideration of the application of the law governing such applications. The law is well settled.

[12] I am not satisfied that this aspect of my ruling today is attended by sufficient doubt to warrant certification in respect of my refusal to grant a stay of proceedings. Accordingly I refuse to certify.

1. Contending that the interlocutory decisions should be set aside, the applicant's counsel submitted in this Court that the present proceeding falls 'within the exceptional class of cases of which the law recognises the remedy of a permanent stay is appropriate'. Counsel relied on a number of factors relied upon before the trial judge (save that any reliance on investigative misconduct was specifically eschewed).
2. First, counsel submitted that some of the charged conduct (e.g., charges 1, 2, 5, 6, 11, 12 and 13) is said to have occurred in the presence of, or in close proximity to, other people, so that the presence, role or potential evidence of those other people is integral to the determination of the allegations. Courts have consistently recognised the prejudice resulting from the absence of deceased or unavailable witnesses may reach the threshold of a fundamental defect in the trial process, particularly if the witness could have offered eyewitness or alibi evidence. The relevant enquiry is focused on the value of the lost opportunity, assessed from the perspective of the defence.[6] In the applicant's case, the prospective witnesses include: 'RM', who is said to have been present during the commission of charge 1; 'RD' (now deceased), who is said to have lived at the Braybrook home, where charge 5 is said to have occurred; 'KD', who is also said to have lived at the Braybrook home, where charge 5 is said to have occurred; and 'SG' (now deceased), who was said to have been present at the Braybrook home both before and after the commission of charge 5.
3. Secondly, counsel submitted that these witnesses also could reasonably have been expected to comment on their observations of the applicant and the complainants, and the interactions between them. The fact that these witnesses will not be part of the trial deprives the applicant of the ability to present a full and accurate picture of the circumstances that existed during the period of the alleged offending.
4. Thirdly, counsel submitted that the applicant is unable to present evidence that relates to his movements and availability during the period of the alleged offending. That evidence includes employment records (such as payslips and rosters), and sporting records relating to football and cricket matches. The absence of that evidence impedes his ability to present objective evidence of an alibi, or objective evidence that would demonstrate a lack of practical opportunity to be present when the alleged incidents occurred. The importance and value of this evidence is 'high', and cannot be characterised as speculative or merely contextual.
5. Fourthly, counsel submitted that the applicant is unable to present evidence of the physical dimensions and layouts of the properties in which the alleged offending is said to have occurred. Many of the allegations are said to have occurred in common areas (e.g., charges 7, 8, 12, 13 and 15) or when others were present or close by (e.g., charges 1, 2, 5, 6, 11, 12 and 13). The inability to examine floor plans, building plans and photographs of the relevant properties deprives the applicant of making arguments to the jury that the allegations made by the complainants are inherently implausible. It also removes an avenue of testing the reliability of the complainants' memories.
6. Fifthly, counsel argued that the effluxion of time is such the applicant is deprived of the opportunity of ascertaining the details of witnesses who could either provide exculpatory accounts or significantly undermine the accounts given by the complainants. By way of example, charge 5 is put on the basis the applicant was at the Braybrook home with up to seven children. Due to the extent of the passage of time the applicant is unable to identify any other adults who may have been present, and who could reasonably be expected to be able to comment on opportunity and supervision, issues that are critical to the determination of the allegation. Further, charge 13 is said to have occurred in a swimming pool at the Coolaroo property when another adult was present. Given the decades that have passed since this conduct is alleged to have occurred, the applicant is unable to identify which adults would have been present on this specific occasion.
7. Sixthly, counsel submitted that the extended period of time that has elapsed since the alleged offending is such that the applicant is unable to offer information that may have materially assisted in his defence and is confined to offering bare denials. The delay in this case is longer than cases in which the period of the delay has been considered 'extreme'. This type of delay will invariably occasion prejudice or forensic disadvantage.[7]
8. Counsel for the applicant contended that while some of the factors relied upon may not individually justify the grant of a permanent stay, the combination of factors renders any trial of the applicant unacceptably unfair. The unfairness is not amenable to a cure by direction.

1. Counsel for the respondent submitted that the stay ruling was correct. The cumulative effect of the factors relied upon by the applicant do not amount to a fundamental defect going to the root of his trial.
2. The respondent's counsel submitted that the delay of between 40 and 45 years between the alleged offending and a trial does not, of itself, preclude the applicant from receiving a fair trial. Indeed, it has been held that a fair trial can be received in other cases involving similar or longer delays.[8] Any presumptive prejudice which may flow from the delay (including the attendant inability to make a defence other than a simple denial) can be appropriately cured by a direction under s 39 of the Jury Directions Act 2015 ('JDA').
3. Whether the unavailability of a witness causes unacceptable unfairness or prejudice to an accused, counsel submitted, depends on the factual matrix in a particular case. That issue alone, however, is not determinative. In the present case, counsel submitted, the probability of unfairness arising from the lost opportunity to obtain evidence from unavailable witnesses is low. But even if such evidence might bear some significance, directions under s 39 of the JDA can ameliorate any prejudice. With the exception of RM, the witnesses nominated by the complainants as being present during the alleged incidents are available. Many witnesses who were said to have been nearby before, during or after those incidents are also available. Other potential witnesses who are unavailable are not integral to the determination of the allegations. They could offer context or relationship evidence, but not eyewitness or alibi evidence. As to RM, counsel for the respondent submitted that the value of any evidence he might have offered is limited. At the relevant time, he was 10 years' old, and it is not alleged that he saw or might have seen what happened, since he is described as having been asleep.
4. Counsel for the respondent submitted that the unavailability of certain physical evidence does not create incurable prejudice or unfairness to the applicant. While employment records might have narrowed down the occasions when the alleged acts could have occurred, they could not eliminate the probability of any one or more incidents having taken place altogether in this case. Sporting records (assuming any ever existed and reliably recorded when, where or who trained or played) similarly could not establish an alibi or negate an opportunity to allegedly offend. Furthermore, there are also witnesses available who can describe the layout of the relevant houses and how the spaces were used. Hence, little opportunity is lost by being unable to examine floor or building plans or photographs.
5. The respondent's counsel submitted that questions of witness reliability are matters for a jury to assess, even if particular evidence might be considered weak or tenuous. The present case is not one where available witnesses can no longer remember or are confused about the material details of the alleged incidents and surrounding circumstances. Any presumptive prejudice arising from the effluxion of time and its potential effect on memory is also not such that the applicant cannot receive a fair trial. If such issues do arise, the applicant might be entitled to an unreliability direction.
6. Finally, counsel submitted that any argument that investigators acted with impropriety when speaking with CB and AC is without foundation. There is no evidence which suggests investigators coached or pressured either witness about what to say in their respective statements. Notably, both CB and AC complained to others about the applicant's alleged conduct well before they spoke to police.

The principles guiding the grant or refusal of a permanent stay

1. The principles that guide the grant or refusal of a permanent stay were recently discussed in Canning, in which the Court observed:[9]

[59] As to those principles, it was said in Ballard[10] that

it is well settled that a court should stay criminal proceedings only if, having regard to all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[11] In order to justify a permanent stay the circumstances must be exceptional,[12] a permanent stay being a measure of last resort.[13] There must be a fundamental defect going to the root of the trial of such a nature that nothing that the trial judge could do in the conduct of the trial could relieve against its unfair consequences.[14] To obtain a stay, an accused person must demonstrate that the circumstances are such that any trial necessarily will be unfair, so that a conviction would bring the administration of justice into disrepute.[15] The court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice.[16] A court's power to grant a permanent stay stems from the court's inherent jurisdiction to protect the integrity of its processes where the administration of justice so requires.[17]

[60] And in Hermanus, it was observed:[18]

Authority establishes that a court should stay an indictment if, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[19] A permanent stay will only be granted in circumstances which are rare or exceptional.[20]

As I have said, the trial judge derived guidance from FJL. The following propositions may, I think, be drawn from the judgment of Osborn JA (with whom Redlich JA and Sifris AJA agreed) and the cases there cited:

• First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the Court.[21]

• Secondly, in cases involving delay, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.[22]

• Thirdly, circumstances that the court should consider in determining an application for a stay include, the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused's responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime.[23] The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.[24]

• Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness - rather than the possibility - that is critical.[25]

• Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.[26]

• Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings - including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused - and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.[27]

1. It cannot be gainsaid that the delay in this case - 40 to 45 years - is extreme.
2. The essential question for this Court is whether the applicant has demonstrated that the continuation of the proceedings against him will involve unacceptable injustice or unfairness, or will be so unfairly and unjustifiably oppressive as to constitute an abuse of process. There must be shown to be a fundamental defect going to the root of the trial of such a nature that nothing that the trial judge will be able do in the conduct of the trial will relieve against its unfair consequences. The applicant must demonstrate that the delay is such that any trial will necessarily be unfair, so that any conviction would bring the administration of justice into disrepute. It is the probability of unacceptable unfairness that is critical, rather than the mere possibility.
3. There can be no doubt that a delay of the order in this case will occasion some degree of prejudice to an accused person in his or her defence. As Priest JA said in Hermanus:[28]

[42] There will always be difficulties for an accused person in mounting an effective defence after a delay of the order in this case. A number of the difficulties that will inevitably be encountered were identified by Nicholson J in Jacobi[29] (a case where the delay was between 25 and 36 years):

• The appellant will face the problems inherent in meeting allegations about events said to have occurred many years ago, involving quite young children. These problems include:

• the reliability or the accuracy of a complainant's recollections about which evidence is given so many years after the events;

• the difficulty confronting a trier of fact when assessing the veracity and reliability of a person, not by hearing and observing their evidence given when young, soon after the events are said to have taken place and with the child's contemporary language and understanding but after hearing and observing evidence given in the language of an experienced adult with all of the possibilities of reconstruction and re-interpretation that this entails;

• the difficulty confronting the appellant having to go well back in time to recall, check and verify the accuracy of events about which evidence is given; and

• the difficulty confronting the appellant in endeavouring to obtain and produce documentary evidence or oral evidence from other witnesses which might put in question the evidence of a complainant as to events, times and places.

These problems confront any accused person who wishes to defend historical child sex allegations and are inevitable where there is significant delay in the bringing of a prosecution. ...

[43] I sympathise with the notion that any trial relating to alleged events that are decades old inevitably will be attended by a degree of unfairness and prejudice to the accused. Indeed, nobody experienced in trials involving allegations of 'historical' sexual offences could fail to sympathise with that view.[30] Since events and circumstances contemporaneous to the events the subject of charges are usually incapable of any meaningful investigation, more often than not the accused is driven to a bald denial of misconduct, without the ability to present independent evidence contradicting or casting doubt on a complainant's account. The opportunity to present an alibi is, in my experience, virtually non-existent. Moreover, with respect to those who hold a different view, I doubt the capacity of the average juror to readily comprehend the true extent of the unreliability and inaccuracy of memory where there has been the intervention of many years between the alleged events and their recounting.[31]

1. Notwithstanding the manifold disadvantages that usually attend the defence of charges relating to ancient alleged sexual misconduct, however, the law contemplates that it may remain possible for an accused person to receive a trial that is not unacceptably unfair, so long as there are means available to a trial judge - for example, evidentiary rulings and jury directions - to contain the unfairness and prejudice within tolerable limits.
2. In the present case, counsel for the applicant submitted that relevant witnesses are unavailable and documentary evidence lost. Thus, with respect to charge 1, CB's brother, RM (then a child of 10), who was present in the bungalow when the offending allegedly occurred, is not available. In our view, however, any evidence that he might have been able to give would have been, at the most, limited. It is not suggested that he observed, or might have been in a position to observe, the alleged offending, CB's evidence being that he was asleep at the relevant time.
3. Similarly, with respect to charge 5, the applicant claimed that several adult witnesses who had either lived at the Braybrook home, or had been present at the home before and after the alleged offending, are not available. As is the case with charge 1, however, we consider that any evidence they might have been able to give is unlikely to have shed any light on the circumstances that existed in the Braybrook home that will be relevant to whether the alleged offending occurred (or could have occurred). CB's evidence is that her mother and two of her relatives went shopping, leaving her and a number of other children at home. The alleged offending occurred after the applicant took her into his darkened bedroom alone, leaving the other children to watch television in another part of the house. There is no suggestion that there were any eye witnesses to the offending. Upon the hearing in this Court, the parties also confirmed that no adults were present in the house at the time. It is not apparent what evidence favourable to the defence the adults or children might have been able to provide were they available to give evidence.
4. Moreover, we consider it to be entirely speculative to suggest that documentary evidence said to be unavailable might have assisted the applicant in his defence to the charges. Given that the charges are laid between dates, and that they are tied generally to the complainants' memories of their ages when the alleged offending occurred, it is difficult to see that rosters, pay slips or sporting records could have provided the applicant with a meaningful alibi, or have gone any way towards demonstrating that the alleged offending did not occur (or could not have occurred). There is no suggestion that there were any eye witnesses to the offending. At the hearing in this Court, the parties also confirmed that no adults were present in the house at the time. With one exception (charge 16), the time frames during which the offences were allegedly committed were broad, mostly ranging over a 12 or 24 month period. The applicant's counsel in this Court confirmed that it is not in issue that the applicant would regularly stay overnight at the Wodonga property where CB lived (where it is alleged that charges 1, 2, 3 and 4 occurred). Nor is it in issue that the complainants CB, TG and AC would regularly visit or stay at the applicant's Braybrook residence (where it is alleged that charges 5, 6, 7, 8, 9, 10, 11, 12, 14 and 15 occurred). Accordingly, if the documentary evidence were available, at best it would have little relevance to the issue whether the applicant committed the offences charged. To that extent, the circumstances of this case may be contrasted with those of the recent case of Canning, in which the absent putative evidence would have borne directly on the applicant's lack of opportunity to offend against the complainants in the manner alleged.
5. Finally, there is nothing in the submission that the absence of floor plans (and the like) for the different premises where the offending allegedly occurred will deprive the applicant of the ability to advance arguments as to the implausibility of the offending having occurred. Witnesses capable of describing the layout of the various premises, and how parts of the premises were used, remain available.
6. In our opinion, the presumptive unfairness and prejudice to the applicant that remains will be amenable to satisfactory amelioration by a suitably strong forensic disadvantage direction under s 39(3) of the JDA. The extreme delay of 40 to 45 years should be sufficient to satisfy the trial judge 'that the accused has experienced a significant forensic disadvantage' within the meaning of s 39(2).
7. Although the direction under s 39(3) will need to be crafted to accommodate the evidence as it eventually falls at trial, it might be expected that any such direction will need to bring home to the jury that, after a delay of 40 to 45 years, the applicant has lost those means of testing the complainants' allegations that would have been open to him had there not been such an extreme delay. The jury will need to understand that, had the complainants made the allegations soon after the alleged offending, the applicant would have been able to explore its alleged circumstances in detail, and perhaps adduce evidence throwing doubt upon the allegations or confirming the applicant's denials. As an aspect of that, the jury will need to comprehend the reality that the applicant has lost the opportunity of possibly establishing an alibi, and that he has lost the chance of presenting a defence other than a bare denial. Depending on the circumstances prevailing at the close of the evidence, the jury may also need to be told that the applicant has lost the chance to obtain documents that may have assisted his defence, or to have the complainants medically examined (noting that CB claims to have bled after the alleged penile-vaginal penetrations constituting both charge 3 and charge 5). Certainly, the jury will have to be instructed on the disadvantages attendant on testing the reliability of the complainants' memories after such a long time.
8. In the circumstances, we would refuse the application to review the judge's refusal to certify. As was set out in Canning,[32] on a review of the refusal of a judge to certify under s 295(3) of the CPA, this Court must 'consider the matters referred to in section 295(3)'; and 'may give the applicant leave to appeal against the interlocutory decision' if 'satisfied as required by section 297'. (It is plain that s 296(4) requires this Court first to consider whether the 'interlocutory decision is ... of sufficient importance to the trial to justify it being determined on an interlocutory appeal'.[33]) Next, s 297(1) makes it clear that, if the Court considers that the ruling is of sufficient importance to the trial to justify it being determined on an interlocutory appeal, the Court may still only grant leave to appeal if satisfied that 'it is in the interests of justice to do so', having 'regard' to the several factors enumerated in s 297(1). In determining whether to grant leave to appeal from an interlocutory decision, this Court should consider whether the decision reveals some error of principle which, together with the various other factors in s 297(1), may dictate whether the Court is satisfied that the interests of justice warrant a grant of leave to appeal.
9. In our view, based on the material before the trial judge, the interlocutory decision was correct. It reveals no error of principle. For those reasons, the application to review the judge's refusal to certify must fail.

[2] Buchanan (a pseudonym) v The King (No 2) [2024] VSCA 50, [31] (Emerton P and Whelan JA, and Elliott AJA).

[3] DPP v Tuteru [2023] VSCA 188; (2023) 105 MVR 125, [68] (Beach, Walker and Taylor JJA).

[4] Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 344 [44] (Priest JA, Maxwell P agreeing).

[5] Jury Directions Act 2015 (Vic), s 39.

[6] Luciano v The Queen [2021] VSCA 12, [43] (McLeish, Niall and T Forrest JJA).

[7] Bennett (a pseudonym) v The King [2025] VSCA 208, [138] (Boyce, Orr and Kaye JJA).

[8] Carson (a pseudonym) v The Queen [2019] VSCA 4 (up to 48 years' delay); Bennett (a pseudonym) v The King [2025] VSCA 208 (up to 43 years' delay); Jones (a pseudonym) v The Queen [2017] VSCA 111 (up to 42 years' delay); Newell (a pseudonym) v The King [2025] VSCA 160 (up to 40 years' delay); Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335 (39 years' delay).

[9] Canning (a pseudonym) v The King [2025] VSCA 215, [59]-[60] (Priest, Beach and Walker JJA) ('Canning').

[10] Ballard (a pseudonym) v The King [2024] VSCA 26, [47] (Priest JA, Walker JA and Croucher AJA agreeing) (citations as in original). See also Porter (a pseudonym) v The King [2024] VSCA 127, [47] (Priest, Boyce and Kaye JJA).

[11] Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ) ('Walton'). See also Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 ('Jago'); R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237 ('Dupas'); R v Edwards [2009] HCA 20; (2009) 255 ALR 399 ('Edwards').

[12] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529.

[13] Strickland (a pseudonym) v DPP (Cth) [2018] HCA 53; (2018) 266 CLR 325, 409 [248], 415 [264] (Edelman J); Tuteru, MVR 147, [65]. See also Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 271 CLR 132, 141-2 [20]-[22] (Kiefel CJ, Gageler, Keane and Gordon JJ) (a non-criminal case).

[14] Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75, 111 (Wilson J); Jago, 34 (Mason CJ); Dupas, [35]; Haris (a pseudonym) v The King [2023] VSCA 205, [49]-[50] (Emerton P, Beach and McLeish JJA) ('Haris').

[16] Walton, 395-6; Tuteru, MVR 148, [69]; Haris, [53].

[18] Hermanus, 341-3 [39]-[40] (Priest JA, Maxwell P agreeing). (Citations as in original.)

[19] Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ. See also Jago; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dupas v R [2010] HCA 20; (2010) 241 CLR 237; R v Edwards [2009] HCA 20; (2009) 255 ALR 399; 83 ALJR 717 ('Edwards').

[20] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 529; Jago at 31 per Mason CJ, 60 per Deane J, 76 per Gaudron J.

[21] FJL at 575, [17]. See also Jago at 61 per Deane J, 76 per Gaudron J.

[22] FJL at 575, [18]. See also Jago at 33-4 per Mason CJ; TS v R [2014] NSWCCA 174 at [1] per Leeming JA, [61]-[64] per Bellew J.

[23] FJL at 575, [19]. See also Jago at 61 per Deane J.

[25] FJL at 576, [22]. See also Edwards at ALR 403, [23]; ALJR 720.

[26] FJL at 576, [23]. See also Edwards at ALR 405, [31]; ALJR 722.

[27] FJL at 577, [25]-[26]. See also Jago at 47 per Brennan J, 77-8 per Gaudron J. See further, Bennett (a pseudonym) v The King [2025] VSCA 208, [138]-[149] (Orr and Boyce JJA), [225]-[228] (Kaye JA).

[29] R v Jacobi (2012) 114 SASR 227 at 253, [104]-[105]. See CT v R [2014] NZSC 155 at [13] per Elias CJ, McGrath and William Young JJ. See also Lewis, 'A comparative examination of forensic disadvantage directions in delayed prosecutions of childhood sexual abuse', (2005) 29 Crim LJ 281, 281-2.

[30] See Longman v R [1989] HCA 60; (1989) 168 CLR 79 ('Longman') at 91 per Brennan, Dawson and Toohey JJ. Cf Cossins, 'Time Out for Longman: Myths, Science and the Common Law', [2010] MelbULawRw 3; (2010) 34 MULR 69.

[31] See Longman at 107-8 per McHugh J. See also Rowan QC, 'Old Allegations of Sexual Abuse', [2006] NZLJ 302.