Kenny (a Pseudonym) v The Queen [2018] VSCA 220

2 An indictment filed in the County Court charges the applicant with

35 offences, allegedly committed between 1 January 1972 and 31 December 1985. There are six complainants - 'AMJ', 'MD', 'PSR', 'SMJ', 'AM' and 'JAL' - whose ages at the time of the alleged offending are said to range between about 11 and 16 years.

• Indecent assault upon a male person[2] (23 charges - charges 1 to 6, 9 to 12, 14, 15, 17 to 24 and 26 to 28);

• Buggery[3] (five charges - charges 7, 8, 13, 16 and 29);

• Attempted buggery[4] (one charge - charge 25);

• Indecent assault[5] (four charges - charges 30, 32, 33 and 34); and

• Sexual penetration with a child aged between 10 and 16 years[6] (two charges - charges 31 and 35).

4 Prior to the empanelment of a jury, counsel for the applicant sought a permanent stay of all charges on the indictment. Counsel also contended that the indictment was overloaded. The trial judge entertained the application for a stay and heard submissions from the parties throughout April 2018. Ultimately, by a ruling ('the ruling' or 'the interlocutory decision') that was 'commenced on 30 April 2018 and was concluded and provided to the parties on 8 May 2018',[7] his Honour ruled that 'no charge on the Indictment will be permanently stayed'.[8] His Honour also indicated that he would determine whether the indictment was overloaded 'after the consideration as to whether or not the prosecution can rely on tendency and/or coincidence evidence across the charged acts in the Indictment'.[9]

5 At the hearing of the application for leave to appeal, the Court was informed that the trial judge has now ruled that the prosecution may not rely on tendency evidence across the indictment, but has yet to formulate a ruling as to the coincidence evidence. It also became apparent that the prosecution now intends to file over two new indictments in substitution for the present indictment, each consisting of three complainants. The allegations concerning AMJ, MD and PSR will form the first new indictment. Those concerning SMJ, AM and JAL will form the second new indictment. It is not yet clear whether either or both of those indictments will be subject to argument with respect to the applicant's concerns of overloading. And, the use of tendency evidence and, presumably, coincidence evidence, across each of the two intended indictments remains a live issue. The applicant will now need to consider afresh his forensic choices in light of the apparent intentions of the prosecution.

6 As such, in my opinion, it follows that the bringing of this application was premature. There is a lack of certainty as to the number and make-up of the trial(s), and also as to the evidential matrix to be led. As Hansen JA said in Finn v The Queen, the interlocutory appeal:[10]

[has been] brought too early and without consideration of the extent to which the relevant materials were truly to be admitted at the trial.

It is incumbent upon those participating in these exercises to actually think the whole matter through to the end conclusion.

7 Notwithstanding the premature nature of this application, this matter is to be determined by reference to the single indictment as it is currently before the trial judge and the grounds filed with respect to that indictment before this Court.

8 Before doing so, it is appropriate to make some observations about that indictment.

9 As previously stated, the indictment disclosed 35 charges spanning a period of fourteen years and relating to six complainants. The charges each have maximum penalties ranging between five and twenty years' imprisonment.[11] Quite apart from the complexity and difficulty inherent in the indictment as it currently stands, the prosecution intended to lead evidence of many uncharged acts, although the exact number is difficult to determine with precision.

10 As such, the indictment bears some similarity to that criticised by

Weinberg JA in Bauer (a pseudonym) v The Queen.[12] In my view, those criticisms, and the reasons for them, are apposite to the single indictment filed in this matter.

11 Notwithstanding s 194 of the Criminal Procedure Act 2009 ('CPA'), it is incumbent upon prosecutors to give careful consideration to the legal landscape created by an indictment, particularly in cases of historical allegations. That will inevitably include an assessment of the likely complexity, duration and fairness of the trial and the impact those issues will have upon the duties that both the trial judge and the jury will need to discharge. Without in any way determining whether the proposed split of the indictment as outlined suffers defect or not, it should have been apparent to the Crown that the single indictment as originally filed was overloaded.

12 I turn now to deal with the grounds of the application for leave to appeal before this Court.

13 On 17 May 2018, the trial judge certified pursuant to s 295(3)(b) of the CPA that the interlocutory decision is 'of sufficient importance to the trial to justify it being determined on an interlocutory appeal'.

14 By notice dated 17 May 2018, the applicant seeks leave to appeal the ruling refusing a permanent stay on the following grounds:

1. The Learned Trial Judge erred in refusing to permanently stay all proceedings in respect of each of the six complainants.
2. The Learned Trial Judge erred in that he wrongly categorised a number of matters of prejudice to a fair trial as being matters of presumptive prejudice rather than being matters of actual or likely prejudice.
3. The Learned Trial Judge erred in dismissing as irrelevant the failure of investigators to investigate what those close to the complainants at the time of the alleged offending had to offer in terms of evidence relating to the allegations.

15 The circumstances in which this Court may grant leave to appeal are specified in s 297 of the CPA:

When leave to appeal may be given

(1) Subject to subsection (2), the Court of Appeal may give leave to appeal against an interlocutory decision only if the court is satisfied that it is in the interests of justice to do so, having regard to -

(a) the extent of any disruption or delay to the trial process that may arise if leave is given; and

(b) whether the determination of the appeal against the interlocutory decision may -

(i) render the trial unnecessary; or

(ii) substantially reduce the time required for the trial; or

(iii) resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or

(iv) reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and

(c) any other matter that the court considers relevant.

(2) The Court of Appeal must not give leave to appeal after the trial has commenced, unless the reasons for doing so clearly outweigh any disruption to the trial.

16 It must be borne in mind that, since the Court is called upon to review an exercise of discretion, the central issue as to whether or not the judge erred in refusing the permanent stay must be resolved according to House principles.[13] Intervention by this Court will only be warranted if it is demonstrated that the refusal of a permanent stay was not reasonably open to the judge in the sound exercise of that discretion. Thus, leave to appeal may only be granted should the applicant be able to demonstrate that the judge at first instance acted upon an incorrect principle, took an irrelevant matter into account, failed to take account of a material matter or mistook the facts, or where it can be demonstrated that the judge's decision is unreasonable or plainly unjust.[14]

17 For the reasons that follow, I would refuse leave to appeal.

18 So as to understand the competing contentions of the parties, it is convenient to outline the prosecution case.

19 AMJ was born in May 1959 and is now 59 years of age. He is the complainant in relation to charges 1 to 22 on the indictment.

20 Charges 1 to 8 relate to alleged offending at Balwyn North some 46 years ago, between 1 January 1972 and 31 December 1972, when AMJ was aged around 12 or 13 years. Briefly, the alleged offending includes the following particulars:

• Charge 1: the applicant put his hand on the complainant's penis while in a car.

• Charge 2: the applicant masturbated the complainant at the applicant's parents' house.

• Charge 3: the applicant penetrated the complainant's anus with his finger on the first occasion at the applicant's parents' house.

• Charge 4: the applicant performed oral sex on the complainant at the applicant's parents' house.

• Charge 5: the applicant penetrated the complainant's anus with his finger on a second occasion at his parents' house.

• Charge 6: the complainant penetrated the applicant's anus with his finger at the applicant's physical direction on the first occasion at the applicant's parents' house.

• Charge 7: the complainant penetrated the applicant's anus with his penis at the applicant's physical direction at the applicant's parents' house.

• Charge 8: the applicant penetrated the complainant's anus with his penis at the applicant's parents' house.

21 Charges 9 to 22, are alleged to have occurred between 43 and 46 years ago, over the period from 1 January 1972 to 2 May 1975, when AMJ was aged between 12 and 16 years. The alleged offending includes the following particulars:

• Charge 9: the applicant, at Bulleen, masturbated the complainant in his car.

• Charge 10: the applicant, at Balwyn, masturbated the complainant in his car.

• Charge 11: the applicant, at Balwyn, had the complainant masturbate his penis in his car.

• Charge 12: the applicant, at Balwyn, masturbated the complainant (the second occasion in Balwyn in his car).

• Charge 13: the applicant, at Mount Macedon, had the complainant penetrate the applicant's anus with his penis (the first visit to the applicant's aunt's house).

• Charge 14: the applicant, at Mount Macedon, penetrated the complainant's anus with his finger (the second visit to aunt's house).

• Charge 15: the applicant had the complainant penetrate the applicant's anus with his finger (the second visit to the aunt's house).

• Charge 16: the applicant, at Mount Macedon, had the complainant penetrate the applicant's anus with his penis (the second visit to the aunt's house).

• Charge 17: the applicant, at an unknown location between Mount Macedon and Balwyn North, masturbated the complainant (in the applicant's car on the way home from the third visit to his aunt's house).

• Charge 18: the applicant had the complainant masturbate the applicant's penis in his car (on the way home from the third visit to his aunt's house).

• Charge 19: the applicant had the complainant penetrate the applicant's anus with his finger (the first occasion at the complainant's house).

• Charge 20: the applicant, at Balwyn North, masturbated the complainant (the second occasion at the complainant's house).

• Charge 21: the applicant, at Balwyn North, had the complainant masturbate the applicant's penis (the second occasion at the complainant's house).

• Charge 22: the applicant had the complainant penetrate the applicant's anus with his finger (the last occasion at the complainant's house).

22 MD was born in September 1961 and is now aged 56 years. Charges 23 to 26 relate to a period between 1 January 1973 and 30 June 1973, when MD was about 11 years of age.

23 In summary, the offending involves the following:

• Charge 23: the applicant, at Kew, masturbated the complainant in his car.

• Charge 24: the applicant, at Balwyn North, placed Vaseline on the complainant's penis at the applicant's parents' house.

• Charge 25: the applicant, at Balwyn North, had the complainant attempt to penetrate the applicant's anus with his penis at the applicant's parents' house.

• Charge 26: the applicant, at an unknown location between Kew and Mount Macedon, masturbated the complainant.

24 PSR was born in February 1963 and is now aged 55 years. Charges 27 to 29 allegedly occurred at Balwyn North, and relate to a period between 7 February 1974 and 6 February 1978, when the complainant was aged between 12 to 15 years.

• Charge 28: the applicant performed oral sex on the complainant.

• Charge 29: the applicant had the complainant introduce his penis into the applicant's anus.

26 Each of AMJ, MD and PSR were students at the same Melbourne school at the time it is alleged that the applicant offended against them, or at least when the offending commenced. AMJ and MD were friends and were 'day boys'. Neither knew PSR, who was an occasional boarder. The applicant was, for a period, engaged as a boarding house housemaster at that school. As will become apparent, the exact period of that engagement, said by the applicant to relate only to the academic year of 1974,[15] is relied on by him as being of significance in circumstances where the allegations of these complainants span the years 1972 to 1978 and at least two of the complainants allege the applicant was a housemaster at the time they met him.

27 AMJ, MD and PSR each allege the applicant took them to his parents' house in Balwyn North where a number of alleged offences took place. Each describe, in some detail, the layout of that property. There will be independent evidence before the jury of that layout that is largely consistent with those descriptions. The applicant's parents were resident at the Balwyn North house during the relevant time and, from an unknown date and for an unknown duration, a housekeeper also lived there.[16] AMJ, MD and PSR all say that when they were at the house, they were alone with the applicant.

28 Each of AMJ and MD also allege offending at various locations whilst in the applicant's car, similarly described, and that the applicant drove them individually to a Mount Macedon house where the applicant's aunt lived. MD went once and did not meet the aunt. AMJ went three times and met the aunt 'for a little while'[17] on the third occasion. AMJ alleges offending took place on the first two occasions when he was alone with the applicant.

29 SMJ was born in June 1970 and is now aged 48 years. Charge 30 alleges that the applicant, at Toorak, some 34 to 36 years ago, between 21 June 1982 and 20 June 1984, indecently assaulted SMJ by masturbating him.

30 AM was born in December 1971 and is now aged 47 years. The alleged offending occurred at Mount Macedon some 33 to 35 years ago, between 1 January 1983 and 1 January 1985, when AM was aged about 11 to 13 years. Charge 31 alleges that the applicant had AM introduce his penis into the applicant's mouth.

31 JAL was born in May 1971 and is now aged 47 years. He was aged about 13 or 14 years between 1 January 1985 and 31 December 1985, when the alleged offending occurred.

• Charge 32: the applicant, at Eaglehawk, masturbated the complainant.

• Charge 33: the applicant, at Mount Macedon, masturbated the complainant.

• Charge 34: the applicant, at Mount Macedon, masturbated the complainant.

• Charge 35: the applicant, at Mount Macedon, had the complainant introduce his penis into the applicant's mouth.

33 Each of SMJ, AM and JAL are unknown to each other. None had a connection with the Melbourne school, as did the first three complainants. As alleged, the offending took place in the next decade, the 1980s, by which time the applicant had, following the death of his aunt in 1979, inherited her house in Mount Macedon. He also had a residence in Toorak. SMJ and AM met the applicant by separately doing odd jobs for him. JAL did odd jobs for another man, Mr M, who was known to the applicant.

34 SMJ, AM and JAL have each previously made complaints to police about the applicant's alleged conduct - AM and JAL both, but separately, in 1997 and SMJ in 2004. The applicant has been previously interviewed about those allegations and denied all wrongdoing. Charges were issued with respect to AM and JAL, but neither prosecution proceeded to conclusion.

35 After outlining the relevant legal principles applicable to the power of a court to permanently stay proceedings, Senior Counsel for the applicant submitted that, with respect to each complainant, a combination of factors rendered it impossible for the applicant to receive a trial which was not unacceptably unfair. Delay between the alleged offending and the trial was not, in and of itself, relied upon as a determinative factor. Rather, it was submitted that the magnitude of the delay was the necessary context in which the combination of other factors relevant to each complainant fell to be considered.

36 The complete suite of factors may be conveniently categorised as follows:

• second, the inability of the applicant to now identify and question those who were in a position to observe the contemporaneous demeanour and behaviour of any complainant;

• third, the deliberate forensic choice of the informant not to interview surviving family members as to the contemporaneous demeanour and behaviour of any complainant;

• fourth, the loss of records relevant to the applicant's employment at the Melbourne school, and as they related to the movement of students from the school's boarding house and campus;

• fifth, the loss of police record of interview tapes and transcripts from when the applicant had been previously interviewed with respect to previous complainants; and

• sixth, the absence of information as to why the prosecution of previous charges relevant to any complainant had been discontinued.

37 The prosecutor responded by arguing that the delay, although significant and, although occasioning some unfairness, was not attended by any feature that would render the trial unacceptably unfair. In particular, each complainant gave expansive details as to the alleged offending, such that the applicant knew the case against him with sufficient precision. No deceased witness could give direct evidence as to the offending alleged and, consequently, the absence of witnesses did not deprive the applicant of anything more than the opportunity to ask questions of a speculative nature. The same logic applied to surviving relatives of any complainant who had not been asked to make police statements. The loss of the school records was neutral. While the tapes and transcripts of previous police records of interview were missing, there were extant contemporaneous notes which recorded the applicant's denials of wrongdoing. And there were notes recording AM's decision not to proceed with the previous charges.

38 In a careful and extensive ruling, his Honour accurately detailed the legal principles relevant to a stay application. He noted that the law contemplates that even in cases of a very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended, to some extent, by unfairness, prejudice or forensic disadvantage. His Honour also noted that Senior Counsel for the applicant accepted that the offending alleged across the indictment could only be described as 'serious'.

39 His Honour then considered the forensic disadvantages to the applicant specific to each complainant said to arise because of the effluxion of time.

40 AMJ, together with two siblings, grew up with his aunt after the death of his adoptive parents. Between 1971 and August 1975, he was a day student at the Melbourne school. AMJ was friendly with another student, 'BM', who, in turn, knew the applicant. It was through BM that AMJ was introduced to the applicant.

41 His Honour found that the death of a number of witnesses, namely the mother, father and aunt of the applicant, as well his parents' housekeeper, did not occasion actual prejudice. None were eyewitness to the charged or uncharged acts. Neither were they alibi witnesses. At most, the applicant had lost the opportunity to ask the witnesses about the applicant's opportunity to access both the Balwyn North and Mt Macedon houses when vacant. It was a matter of complete speculation as to what these witnesses may, or may not, have said.

42 Similarly, his Honour found that the deceased aunt of AMJ fell into the same category as a variety of people, like teachers, other students and friends[18] who would have observed AMJ at the time of the alleged offending. What they might have said was, at best, speculative.

43 Further, his Honour found that the absence of statements from AMJ's living siblings did not give rise to any real prejudice given that there was no evidential foundation to suggest that they had any particular association with him at the relevant time or that they would have known anything of the allegations.

44 In short, the loss or absence of these witnesses fell into the category of presumptive or general forensic prejudice. And, as such, that loss or absence did not render the applicant's trial unacceptably unfair. His Honour held that the prejudice could be adequately addressed by a 'detailed and strong'[19] forensic disadvantage direction.

45 His Honour reached the same conclusion with respect to the incomplete Melbourne school records pertaining to the engagement of the applicant as a housemaster. That is, that the prejudice was presumptive only and could be adequately met by a forensic disadvantage direction. One such document, arguably but not conclusively, was capable of interpretation to suggest that the applicant was employed as a housemaster only in 1974, as he had claimed in his record of interview. Certainly, as counsel for the applicant submitted to this Court, one document dated 1975 referred to the applicant as an ex-housemaster, although it was silent as to the length of his prior engagement.

46 MD, together with two siblings, was adopted. He states that the applicant had met his adoptive parents. MD is firm that he met the applicant in 1973 and that all the offending alleged took place in that year.

47 His Honour found that the death of witnesses - except MD's mother, the absence of statements from MD's living siblings and the incomplete school records as to the applicant's engagement as a housemaster were all matters of presumptive prejudice only and amenable to a forensic disadvantage direction.

48 Additionally, his Honour reached the same conclusion with respect to the loss or destruction of a different set of school records. There was evidence that both the boarding house specifically and the school more generally kept written records of permission granted to any student who left the school campus. Those records no longer exist. These have been argued to be critical to this complainant because MD gave evidence of twice leaving the campus with the applicant.

49 MD also gave evidence that he had later told his mother about the alleged offending by the applicant on her deathbed. His Honour found that the prejudice occasioned by the death of that witness could be cured by excluding that evidence pursuant to s 135 and/or s 137 of the Evidence Act 2008.

50 PSR and his younger brother were raised by his mother, who suffered both physical and mental health issues. PSR and his brother would be occasional boarders at the school when his mother was too ill to take care of them. PSR states that the offending took place after the applicant took him from the boarding house.

51 His Honour held that the deceased witnesses, the missing school records and the absence of any statement from PSR's brother were all matters of presumptive prejudice which could be addressed by a forensic disadvantage direction.

52 SMJ lived in Toorak with his parents and four sisters. SMJ states that the applicant offered to set him up with an older girl for the purposes of losing his virginity. SMJ alleges that the applicant sexually assaulted him in the applicant's Toorak house.

53 SMJ first made complaint to police in 2004. The applicant was interviewed by police in October 2006. The tape of that interview is destroyed or lost. There is no extant transcript. There are some diary notes of the officer conducting the interview which records that the applicant made no admissions to the alleged offence.

54 His Honour found that the available police diary notes which record the applicant's denial of wrongdoing overcame any unacceptable prejudice with respect to the loss of the tape and transcript of the record of interview. And, as it was merely speculative as to what SMJ's parents and sisters might say, the absence of statements from them did not occasion prejudice.

55 AM first made complaint to police in 1997, as did JAL. The applicant participated in a record of interview in March 1997 which traversed the allegations by both complainants. The tape of that interview is destroyed or lost. There are extant notes taken during that interview which, although they do not record the questions and answers, do record the denial of wrongdoing by the applicant. Charges were laid against the applicant with respect to both complainants. They were later struck out by a Magistrate.

56 His Honour found that the available diary notes made contemporaneously with the record of interview overcame any unacceptable prejudice with respect to the loss of the tape, including that a jury could no longer hear the inflection and tone of the applicant in his denials. His Honour also found that a note recording that AM was not prepared to pursue the matter, but also was not prepared to make a statement of 'no complaint' rendered the idea that there was some now lost additional evidence which cast doubt on AM's account, and was the trigger for the withdrawal of the charge(s), merely speculative.

57 JAL lived in the Bendigo region and began to do work for a man, Mr M, who was a neighbour. The applicant visited Mr M's house while JAL was there. JAL describes offending by the applicant in both Mr M's house and the applicant's Mount Macedon house. The latter occurred during an overnight visit to Mount Macedon, which occurred with the permission of JAL's mother.

58 With respect to the loss of the 1997 record of interview tape and transcript, his Honour reached the same conclusion he had arrived at with regard to AM. Further, while the notes explaining AM's decision not to proceed did not record anything with respect to JAL, his Honour found it 'fanciful' to suggest that the applicant is now denied the opportunity to call evidence of possible exculpatory material, or matters casting doubt on the veracity and reliability of JAL, which led to the withdrawal of the charges relevant to him.

59 Finally, his Honour held that the absence of any statement from JAL's parents or sisters, and the death of Mr M, did not occasion unacceptable unfairness because it was merely speculative what any of those persons might, or might not, say.

60 During the hearing of the application, the parties largely rehearsed the previous arguments made to the trial judge. Senior Counsel for the applicant emphasised, particularly, the prejudice arising from the loss of the school records and the death of witnesses as occasioning unacceptable unfairness. Senior Counsel for the Crown submitted that the level of prejudice arising in the circumstances did not meet the high threshold necessary to permanently stay the trial.

61 The principles concerning the power to permanently stay a criminal trial have received quite some attention in recent years, often in the context of charges alleging historical sexual abuse.[20] While those principles are not controversial, it is worth setting out the restatement of them by Priest JA in Hermanus.[21]

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.[22] A permanent stay will only be granted in circumstances which are rare or exceptional.[23]

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.[24]
• 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.[25]
• 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.[26] 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.[27]
• Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness - rather than the possibility - that is critical.[28]
• 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.[29]
• 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.[30]

Recently, in CT,[31] the Supreme Court of New Zealand - having reviewed the approaches taken in New Zealand, England and Wales, Canada and Australia - summarised the principles to be applied in determining applications for the stay of criminal proceedings based on delay, several of which complement the propositions which may be drawn from FJL:

(a) Delay between offending and prosecution does not erase criminal liability and the adoption of limitation periods is for Parliament and not the courts. There is no scope for a presumption that after a particular time memories are too unreliable for the purposes of a criminal trial.

(b) The adequacy or otherwise of the explanation for delay may be relevant to credibility but perceived inadequacy of such explanation of itself is not a ground for a stay, at least in the case of serious crime.

(c) A judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.

(d) The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that but for the delay there would have been identifiable evidence which would have assisted the defendant). Rather what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and of the likely prejudicial effects of the delay.

(e) Material to such assessments will be the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant's physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.

(f) While a defendant facing serious charges will usually have to be able to point to tangible delay-related prejudice, a combination of a very lengthy delay and a weak Crown case may justify a stay.

(g) Judges must approach stay applications on the basis that an evaluative assessment is required of the facts of the case at hand without any presupposition as to what the result should be.

62 These principles must be applied to the facts of each case they arise. I consider each species of alleged unacceptable prejudice seriatim.

63 Authority recognises that the effluxion of time does occasion prejudice or forensic disadvantage to an accused. That is the presumptive prejudice that a very long delay between the alleged offending and trial will almost inevitably compromise the fairness of that trial to some degree.[32]

[t]he law contemplates, however, that even in cases of very long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by unfairness, prejudice or forensic disadvantage.

66 Delay of the magnitude that is faced by the applicant in this matter is therefore a presumptively prejudicial factor but is not, on its own, a conclusive one. So much was conceded by Senior Counsel for the applicant before the trial judge.

67 Whether the unavailability of a witness to give evidence in a criminal trial renders that trial unacceptably unfair depends upon the importance of the potential evidence of that witness and its effect on the issues in dispute.

68 In Jones (a Pseudonym) v The Queen[34] it was argued that two deceased witnesses might have given exculpatory evidence or evidence inconsistent with the complainant's accounts of the offences alleged. It followed, so counsel said, that the inability of the defence to cross-examine those witnesses, as to the residency of the complainant at the relevant time and the physical details of the residential facility, rendered the trial unacceptably unfair.

69 This Court held that that it did not. Those witnesses were contextual witnesses only. They were not eyewitnesses to any charged event nor could they be described as alibi witnesses. There was other evidence available as to the physical layout of the facility. Accordingly, the inability of the defence to cross-examine those witnesses was characterised as lost opportunity, rather than lost evidence:[35]

[W]hile it is true that the applicant will not have the benefit of cross-examining the witnesses on the various matters identified by his trial counsel, when pressed by this Court on the appeal, the applicant's counsel was driven to accept that the complaint was really no higher than that the applicant has suffered a lost opportunity to ask these witnesses about these matters. It is a matter of complete speculation as to what these witnesses may have said (or not said). This is not a case where actual or known evidence has been lost.

70 However, in Green the death of the foster parents of the applicant was material and factored in the decision to stay the trial. The Court held:[36]

It is in that context that the unavailability of Mrs Green, the foster mother, is of particular moment. On the account given by the complainant, Mrs Green was the central figure in the setting in which, it is alleged, the applicant sexually abused her. In particular, the description by the complainant of the appalling treatment allegedly meted out to her by Mrs Green constituted the context in which the offending took place. On the complainant's version of the events, she was treated as less than human by Mrs Green. In a sense, the offending by the applicant was described as part of the miserable existence inflicted on the complainant by Mrs Green. In the VAREs, and in the special hearing, the complainant explained that she did not complain, to Mrs Green, or to other persons, of her abuse by the applicant, because she was fearful of repercussions at the hands of her foster mother. In addition, in the third VARE, the complainant suggested that the foster mother was aware of what the applicant was doing to her, at about the time of the events that constituted charges 8 and 9.

In those circumstances, if she had been alive, Mrs Green would have been a central witness in the case. Her absence, due to her death in 1971, would constitute a significant disadvantage to the applicant in defending the charges against him. It is, of course, to be acknowledged that the loss of Mrs Green, as a witness in the proceeding, was not due to any delay in the institution of charges against the applicant. Nevertheless, the point remains that in any criminal proceeding based on the allegations made by the complainant, the applicant would be at a significant disadvantage because of the absence of his mother as a witness as to the matters to which we have just referred.

Further, it is in that context that the subsequent death of Arthur Green, the foster father, constitutes a greater disadvantage to the applicant than if his mother were still alive. While Arthur Green was working at the time, and was evidently quite busy, nevertheless it is inconceivable that, if the circumstances in the Green home were anything like that described by the complainant, Arthur Green would not have been fully aware of them.

71 In this matter there are a total of ten potential witnesses who are now deceased: the parents of the applicant, their housekeeper, the aunt of the applicant, the aunt of AMJ, AMJ's friend BM, MD's adoptive parents, PSR's mother and Mr M. None were eye witnesses to any charged or uncharged act. None were alibi witnesses.

72 His Honour was correct to hold that any evidence that might have been given by any of them could only have been contextual, and that how any such evidence would fall is a matter of complete speculation. Accordingly, the absence of these witnesses due to the delay occasions presumptive prejudice only. That prejudice can be met adequately by a forensic disadvantage direction.

73 The relevance of the police conduct in electing not to obtain statements from living family members of the complainants is considered with respect to ground 3 below. But here dealing with the fact of the absence of that evidence, rather than the reason for that absence, the same finding with respect to the now deceased witnesses must follow.

74 There was no evidence before the trial judge to indicate that any of the family members of any complainant were in a position to give anything more than contextual evidence. Further, if called, what any family member would say was unknown. Not one complainant said that they had told a still living relative about the abuse as it was occurring, nor that they shared a particularly close relationship with anyone in their family constellation. None reached the threshold of the deceased foster father in Green[37] that it would have been 'inconceivable' that he was unaware of the relevant circumstances.

75 Child sexual abuse usually occurs in secret. And, as is now expressly stated to criminal juries when there are differences in a complainant's account of a sexual offence, experience shows that trauma may affect different people differently.[38] Any contemporaneous generic observations made by family members, friends or teachers as to the demeanour or behaviour of any complainant while being potentially relevant in the trial, could only be of marginal significance. A jury would be likely to accept, as a matter of common sense, that pubescent boys behave in any number of ways for any number of reasons.

76 The critical question with respect to the absence of any or complete records in a criminal trial is the same posed in the absence of any witness: 'does that absence render the trial of an accused unacceptably unfair?'. In my view, the trial judge was correct to hold that the absences complained of in this trial did not amount to unacceptable unfairness. Forensic disadvantage directions will be adequate to address the prejudice that does arise.

77 It is instructive to examine a circumstance where the absence of records has been held to amount to a fundamental defect in the trial. In Davis[39] the accused was a medical doctor charged with 14 counts of indecent assault in respect of 13 patients. In each case the indecent assault was said to have been a vaginal examination carried out in an inappropriate manner. There was a delay in reporting the alleged assaults to police until the year after the doctor had retired from practice. Upon his retirement his secretary had destroyed the medical records of his ex-patients.

78 The Full Federal Court held that the doctor had suffered special prejudice as a result of the destruction of the medical records:[40]

It is understandable that, without the records, Dr Davis is unable to recall the relevant consultations. He must have conducted thousands of consultations during his 37 years in general practice. He probably made hundreds of vaginal examinations. Most of the complainants saw him only a few times, some only once or twice. Without his records, Dr Davis would have no way of putting himself back into the situation that applied at the dates of the relevant consultations. He would have no means of checking how many times he saw a complainant, the reason for the consultation or the treatment he provided. We agree with Mr Richardson's comment that it is unlikely that the notes would reveal that Dr Davis masturbated the patient or fondled her breasts, if that is what he did. But the comment misses the point and trivialises the difficulty. This is not like many sexual assault cases where the accused person has no business anywhere near the complainant's genitalia. This is the case of a doctor who may have had a legitimate reason for making a vaginal examination. Without the medical notes, it would be impossible for Dr Davis to check whether he made an internal examination of any particular complainant or why he did so or to say how he carried it out. It would be impossible for him to give instructions to his counsel regarding aspects of the general treatment of the complainant, or the particular incident, that should be put to her in cross-examination and which might reveal the incident in a different light.

79 That kind of special prejudice is entirely absent here.

80 With respect to the incomplete records concerning the year(s) and length of time the applicant was a housemaster at the Melbourne school, it is to be remembered that the dates pleaded on the indictment are particulars only. As Senior Counsel for the Crown submitted to this Court on this application, the prosecution will not gainsay the document which suggests that the applicant was employed for a single year, that year being 1974. Rather, the Crown will invite the jury to conclude that to the extent that the memory of any complainant is inconsistent with that evidence, that particular memory is incorrect.

81 Such inconsistency or inaccuracy, depending upon how firmly any complainant maintains that any abuse occurred both while the applicant was a housemaster and in a year other than 1974, may be exploited by the applicant's counsel. That is a forensic choice for the applicant.

82 With respect to the lost or destroyed records of the movement of students from both the boarding house and the school campus more generally, the evidence before the judge indicated that such records were not infallible. A number of former students were called to give evidence on the point. There was a common exception to recording movement to and from the boarding house in the hours after school, when students could go to the local shops. But, there was also some evidence that the records failed to record students movement more generally. One witness said 'in reality often we'll go without getting permission'. Additionally, it might well be generally accepted that teenage boys might not always obey the rules, especially in a school environment where it is apparent that the records of movement were not consistently utilised, and in light of some apparent exceptions.

83 In any event, even if the records existed, it remains a live question what the applicant would make of them. If they recorded the movement of the relevant complainants at the relevant time, the applicant would argue that the movement was innocent, as there was nothing recorded in the document to suggest that the movement was for the purpose of facilitating abuse. If movement was not recorded, the applicant would argue that that absence suggested that the applicant never took any complainant away from the school. But, no doubt, the prosecution would point to the evidence that the records were fallible and argue that the lack of an entry did not mean no movement took place.

84 In those circumstances, any prejudice suffered by the applicant occasioned by the absence of the records can be adequately addressed by a forensic disadvantage direction.

85 Likewise, the absence of the tapes and transcripts of the previous records of interview do not amount to specific prejudice. The fact that the applicant denied wrongdoing is recorded. While the absence of the precise questions and answers and the tone of voice of the applicant during those interviews are now lost, the forensic disadvantage arising is not unacceptable.

86 And, it is nothing but speculation that the reason why the previous charges relating to AM and JAL did not proceed was because material had come to light casting doubt on their veracity and credibility.

87 It is necessary to consider whether any of the factors, although insufficient to occasion unacceptable unfairness to the applicant when considered separately might, in combination, render his trial unacceptably unfair.

88 In my view they do not. By direction and by evidentiary rulings, the trial judge has the power to conduct the trial(s) of the applicant in a manner that is fair according to law.

89 It necessarily follows from the analysis above, that the trial judge did not err in characterising the loss of records and the unavailability of certain witnesses as matters of presumptive prejudice rather than being matters of actual or likely prejudice.

90 In this matter, the deliberate decision of the Informant to refrain from making enquiries from any family members of the complainants was not capricious. It was based on a rational assessment of the likely value and importance of that potential evidence as well as a consideration of the privacy of the complainants. In this Court, Senior Counsel for the applicant disavowed any allegation of police impropriety. Rather, the decision of the Informant was characterised as 'unsatisfactory'.

91 In my view, the fact that a police investigation carried out in good faith and, subject always to finite resources and time, might not have been as thorough as it could have been is insufficient to invoke the extraordinary remedy of staying a trial. Of course police officers must not deliberately ignore exculpatory material, or otherwise act inappropriately. Nothing of that kind is here suggested.

93 For these reasons, I consider that the application for leave to appeal should be refused.

94 I agree, for the reasons given by Taylor AJA, that leave to appeal should be refused.

[1] To ensure that there is no possibility of the identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

[2] Crimes Act 1958, s 68(3A) (as amended by the Crimes (Amendment) Act 1967).

[3] Ibid, s 68(1) (as in operation between 1 April 1959 and 28 February 1981).

[4] Ibid, s 68(3) (as in operation between 1 April 1959 and 28 February 1981).

[5] Ibid, s 44(1) (as amended by the Crimes (Sexual Offences) Act 1980).

[6] Ibid, s 48(1) (as amended by the Crimes (Sexual Offences) Act 1980).

[7] So described in the Record of Orders dated 17 May 2018.

[10] [2011] VSCA 68 at [10]-[11]. See also Jones (a Pseudonym) v The Queen

[2017] VSCA 111 at [82]-[84], [87]; Brewer (a Pseudonym) v The Queen [2017] VSCA 117 at [107]-[101]; KJM v The Queen [2011] VSCA 151 at [4] and [6].

[11] Charges 1 to 6, 9 to 12, 14, 15, 17 to 24 and 26 to 28 (indecent assault upon a male person) attract a maximum term of imprisonment of not more than five years; Charges 7, 8, 13, 16 and 29 (buggery) attract a maximum term of imprisonment of not more than twenty years; Charge 25 (attempted buggery) attracts a maximum term of imprisonment of not more than ten years; Charges 30, 32, 33 and 34 (indecent assault) attracts a maximum term of imprisonment of not more than five years; Charge 31 and 35 (sexual penetration with a child aged between 10 and 16 years) attracts a maximum term of imprisonment of fifteen years.

[12] [2015] VSCA 55; (2015) 46 VR 382, 385-9 (Weinberg JA).

[13] House v The King (1936) 55 CLR 499 ('House').

[14] House, 505 (Dixon, Evatt and McTiernan JJ). See KJM v The Queen (No 2) [2011] VSCA 268; (2011) 33 VR 11, 12-3 [9]-[14]; Singh v The Queen [2011] VSCA 263; (2011) 33 VR 1, 6-7 [26]; DPP v Marijancevic [2011] VSCA 355; (2011) 33 VR 440, 444-5 [13]-[16]; Hermanus (a Pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 341 [38].

[15] At Q45 of the Record of Interview ('ROI') the applicant said, 'I think it was 74'. At Q58 he said, 'it might have been 74 I was there'. At Q229 he said, 'I'm not sure. I'm saying 74'. At Q239 he said, 'I was only at [the school] for a year'.

[17] Statement of AMJ dated 12.01.16 at [18].

[18] Although His Honour did not expressly refer to BM, who is deceased, it is clear from

His Honour's reasoning that BM would fall into this category.

[20] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 ('Jago'), R v FLJ [2014] VSCA 57; (2014) 41 VR 572 ('FJL');Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 ('Barton'); R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378; R v Edwards [2009] HCA 20; (2009) 255 ALR 399; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; see also recent decision of this Court in Hermanus v The Queen [2015] VSCA 2 ("Hermanus') and Green (a Pseudonym) v The Queen [2017] VSCA 277 ('Green').

[21] [2015] VSCA 2, [39]-[41].

[22] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ). See also Jago; R v Glennon [1992] HCA 16; (1992) 173 CLR 592; Dupas v The Queen [2010] HCA 20; (2010) 241 CLR 237; R v Edwards [2009] HCA 20; (2009) 255 ALR 399 ('Edwards').

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

[24] FJL, [17]. See also Jago, 61 (Deane J), 76 (Gaudron J).

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

[26] FJL, [19]. See also Jago, 61 (Deane J).

[28] FJL, [22]. See also Edwards, 403 [23].

[29] FJL, [23]. See also Edwards, 405 [31].

[30] FJL, [25]-[26]. See also Jago, 47 (Brennan J), 77-8 (Gaudron J).

[31] CT v The Queen [2014] NZSC 155, [32] (Elias CJ, McGrath and William Young JJ). See also [59] (Glazebrook and Arnold JJ) ('CT').

[32] FLJ [2014] VSCA 57; (2014) 41 VR 572; Green [2017] VSCA 277 at [43] (Priest JA) ; see also R v Jacobi (2012) 114 SASR 227, 253 [104]-[105].

[34] [2017] VSCA 111.

[36] Green, [82]-[84]; see also paragraph [102] where the Court held that it was the combination of factors rather than any individual factor that led to the conclusion reached.

[38] Jury Directions Act 2015, s 54D(2)(c)(ii)..

[39] The Queen v Davis (1995) FCR 57 512 ('Davis').