Morton (a pseudonym) v The Queen [2020] VSCA 49

1 The applicant was facing trial on 10 charges alleging that he committed sexual offences against his five nieces between 1963 and 1966. On two occasions - the first in November 2019, the second in February this year - he applied to a judge of the County Court for a permanent stay of the criminal proceedings, on the ground that the passage of time since the alleged offences meant that it was impossible for him to obtain a fair trial.

2 With the exception of charge 10, both applications failed. Judge O'Connell stayed charge 10, but otherwise refused the application. His Honour's detailed reasons were published on 2 December 2019.[2] The second application was made to Judge Tinney. The change of circumstances said to justify the second application was his Honour's ruling to exclude certain complaint evidence, a matter left unresolved by the first ruling. Judge Tinney likewise refused the stay application and, moreover, refused to certify his decision for an interlocutory appeal.[3]

3 The applicant applied under s 296(1) of the Criminal Procedure Act 2009 to review Judge Tinney's refusal to certify. On 24 February, at the conclusion of argument, this Court upheld the application for review, granted leave to appeal, set aside the judge's decision and ordered that there be a permanent stay. The reasons of Beach and Kyrou JJA ('the joint reasons'), which I have had the advantage of reading in draft, set out the basis upon which their Honours concluded that it was not reasonably open to Judge Tinney to refuse the stay application.

4 I respectfully disagree. I would have refused the application for review of the refusal to certify. In my opinion, it was well open to his Honour to refuse the stay application.

5 My reasons are essentially threefold, as follows. First, as the authorities cited by their Honours make clear, the decision whether or not to stay a criminal proceeding is discretionary.[4] Moreover, deciding whether a trial will be 'unacceptably unfair' is a matter of judgment, informed by experience. In the absence of specific error, this Court will not intervene unless it is shown that the judge's decision was not reasonably open, that is, fell wholly outside the range of decisions to which a judge could reasonably have come having regard to the facts of the case and the applicable principles.[5]

6 As this Court has said repeatedly when applying the 'not reasonably open' test in connection with appeals from the exercise of the sentencing discretion, it is a stringent test, difficult to satisfy. The stringency of the test reflects the policy that the exercise of discretions of this kind is for judges at first instance, not for appeal judges.[6]

7 Judges like Judge O'Connell and Judge Tinney have daily experience presiding over trials of sexual offences and are therefore exceptionally well placed to evaluate questions of forensic disadvantage of the kind which arose here. They are constantly called on to make judgments about how to ensure the fairness of the trials over which they preside. It follows, in my opinion, that this Court should be especially slow to substitute its own judgment on a question of 'unacceptable unfairness' for that of a trial judge.

8 Secondly, the test for permanent stay is itself exceptionally stringent. In his seminal judgment in Hermanus,[7] Priest JA said:

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.[8]

His Honour here drew on the language used by Mason CJ in Jago v District Court of New South Wales.[9] The 'fundamental defect' test has been applied consistently in decisions of this Court concerning permanent stays,[10] and it was applied expressly by Judge Tinney in his reasons for refusing a stay. By way of reinforcing my earlier point, it must be an unusual circumstance where a 'fundamental defect which goes to the root of the trial' only becomes apparent for the first time when the matter is litigated in this Court.

9 Thirdly, for reasons explained more fully below, I see nothing which distinguishes the present case from a series of earlier decisions in which this Court declined to interfere with the decision of a judge to refuse a permanent stay of historical sex charges, sought on the basis of delay and forensic disadvantage. Of course, the circumstances of every case are different but the categories of forensic disadvantage relied on remain the same, for obvious reasons, and consistency of outcome in comparable cases is a requirement of the rule of law.

10 The principal consideration on which the present applicant relies is the absence of witnesses. This is a consideration which arises almost invariably on applications of this kind and yet - unless the missing witnesses were eyewitnesses or alibi witnesses - their absence has rarely been held to justify this Court's intervention to overturn a judge's refusal of a stay.[11] With great respect to my colleagues, I can see nothing about the missing witnesses in the present case - the mother of three of the complainants ('the mother') or the grandparents - which differentiates this case from those others.[12]

11 Viewed another way, the present case lacks any special or unusual feature which might warrant this Court's exceptional intervention. In Bauer (a pseudonym) v The Queen,[13] for example, a key consideration in this Court's grant of a stay was that the complaint evidence was ruled admissible even though the person to whom the complaint had allegedly been made had since died.[14] Here, as explained in the joint reasons, the judge has excluded the complaint evidence altogether, so that issue does not arise. Again, in Green, a stay was granted by this Court on the basis of the loss of a 'central witness' and the combined effect of the loss of a number of 'important witnesses and items of evidence'.[15] There is no parallel here on either score. Finally, in Pound, the critical consideration was the inability of the accused man to participate in his trial because of his cognitive deficits.[16] No issue of that kind arises here.

12 It is of particular significance, in my view, that the submissions advanced on behalf of the applicant in this Court did not identify the loss of evidence from witnesses as the key issue of forensic disadvantage. On the contrary, counsel for the applicant conceded in reply that the absence of the deceased witnesses could be addressed by a forensic disadvantage direction under s 39 of the Jury Directions Act 2015. Instead, what was said to be 'the strongest argument in relation to specific prejudice' related to the exclusion of the complaint evidence.

13 Although it was the absence of the mother (as the recipient of the alleged complaints) which enabled the applicant to secure the exclusion of the complaint evidence, his counsel maintained that the inability to explore the circumstances of the complaint allegedly made by Mary to her mother represented a lost opportunity to attack Mary's credit.[17] And this was said to be an incurable unfairness. Given the counterbalancing forensic advantage to the applicant flowing from the exclusion of the complaint evidence, I am unable to see how this consideration could even approach the 'fundamental defect' threshold.

14 What is particularly striking about the judge's reasons is how thoroughly his Honour had prepared himself to deal with the stay application. The reasons record that, in advance of the hearing, he had read the entirety of the depositional material, all of the witness statements and all of the cross-examinations at the committal (which extended over a number of days). He had also read the transcript of the three days of legal argument before Judge O'Connell in November 2019. Finally, he had read all of the relevant decisions of this Court.

15 His Honour said that, being the trial judge, he was 'closer to the trial and in a much better position than his Honour Judge O'Connell was to know how the trial "looks"'. Importantly, as already noted, his Honour had ruled that the complaint evidence was to be excluded. As he pointed out, this was an instance of a trial judge taking preventive action to eliminate potential unfairness, just as Priest JA had foreshadowed in Hermanus, as follows:

[T]he 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.[18]

As explained in the joint reasons, his Honour had also excluded evidence of Lisa being sent home on account of having displayed sexualised behaviour.

16 His Honour noted that the delay in this case was 'at the extreme end' and that 'plainly' there was unfairness - 'presumptive disadvantage or unfairness' - to any accused in such a setting. Further, he accepted that the delay was

the essential backdrop to the assessment of the specific aspects of prejudice that are raised in the various materials.

17 Turning to the missing witnesses, his Honour said that the question of what the mother or the grandparents would have said was 'just entirely speculative'. As his Honour pointed out:

[T]here is no suggestion that the mother is an eyewitness to any of these events. I am not saying that she would be unimportant. No doubt if she was alive and in fit mental state she would be called to provide what is often said to be the contextual evidence. ... but in the setting of her being a person who is not always in the house, indeed often not, and the children being in the house often without their mother who is absent from the home for good reason ..., she is not a witness to the events described by the various complainants, and it seems to me when one looks at what is lost in terms of her, we do not know exactly what she would [say]. I do not think we can infer anything really as to her favouring or advancing the prosecution case or advancing the defence case. It is pure speculation. I have absolutely no idea.

18 In relation to the grandparents, his Honour said:

[T]he same applies, we have got absolutely no idea what they would have said had they been alive. We have got no idea whether that would have impacted upon the probability of the happening of these acts or not, given that none of the children are suggesting that any of these acts are taking place in the actual physical presence of an adult.

19 As to the age and infirmity of the applicant's sister, Catherine, his Honour noted that the argument advanced in support of the stay application concerned the potential impact upon her evidence of the directions that he might give in relation to delay - that this 'may somehow rub off on a consideration of her evidence'. His Honour rejected this contention, holding that if Catherine were called - as the defence at that stage wanted her to be - it would be a matter for the jury to assess her reliability as a witness.

20 As to the public interest in the prosecution of serious offences, his Honour addressed a defence argument that the offences charged carried a maximum penalty of only three years' imprisonment and that they were therefore 'not at the high end of seriousness'.[19] His Honour rejected the argument:

The alleged conduct that I am dealing with is anything but minor. This is the way this sort of conduct was viewed back in that time. It was an historical aberration, frankly as we know from the succeeding legislative intervention over the years. But I look at the nature of the conduct, the offences, yes, there is a maximum of three years, but most of them involve penetrative conduct. That is the setting that is alleged. That is what each of the complainants is complaining of - sexual penetration.

The stay is a remedy of last resort. It is exceptional and there is, in my judgment, a strong public interest in matters such as this being brought before the court. A strong public interest in not shutting out the complainant from bringing the matter forth.

21 His Honour expressed his conclusion in these terms:

I disagree with the submission that the trial - which I can now see with real clarity - would be unacceptably unfair. I do not believe that is the nature of the trial that lies ahead. There are issues in relation to it. It will not be a perfect trial; I readily concede that.

Having considered all of those matters I am simply not satisfied that the trial, which I can now see with a level of clarity that I suspect Judge O'Connell did not have within his vision, ... I do not think the trial is likely to be unacceptably unfair. I can in my view eliminate many of the unfairnesses that are said to be raised by virtue of the delay here. I can do that by direction. I am satisfied that that will significantly ameliorate many of these issues.

... I am certainly not satisfied that the proceeding would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.

22 In my respectful opinion, these were exemplary reasons. As can be seen - and as counsel for the applicant accepted - his Honour directed himself correctly as to the applicable principles and took all of the relevant considerations into account. His reasons demonstrate how carefully he evaluated the 'lost opportunity'[20] represented by the unavailability of the witnesses and the applicant's work records.

23 Further, in my opinion, his Honour's assessment of the value of that lost opportunity was unimpeachable. After all, there was only one occasion (charge 3) on which the mother was said to have - possibly - observed one of the complainants in the company of the applicant. Apart from the real possibility that her evidence in that regard might have been inculpatory rather than exculpatory, the complainant's evidence is that the conduct stopped upon the mother's entry. Otherwise, the only evidence the mother could have given was - as the joint reasons acknowledge - 'contextual evidence', the unavailability of which does not ordinarily warrant the grant of a stay.[21]

24 As noted earlier, the primary argument in this Court was that the mother's absence had resulted in the exclusion of the complaint evidence, which was said in turn to have prevented the defence from exploring with Mary whether the alleged 'trigger' for her complaint - the taking of Theresa to hospital with her alleged vaginal injury - had ever occurred. As I suggested in the course of argument, this seemed a rather circuitous route to establishing forensic disadvantage, given the forensic benefit of the exclusion of the complaint evidence. The related contention was that the absence of complaint evidence would suggest, incorrectly, that the applicant's threat to Mary had been effective in silencing her. I agree with the joint reasons that this does not constitute a relevant unfairness.

25 As to the evidence of the grandparents, all that was said in the applicant's written contentions filed in this Court was that their absence 'compounds the issues' created by the absence of the mother. In oral argument, there was reliance on the fact that - on one occasion (relating to charges 6 and 7) - the grandparents were said to have been in the upstairs lounge while the applicant allegedly offended against Emily in the downstairs lounge. What they might or might not have heard on that occasion is, of course, entirely speculative and, otherwise, their evidence would have been purely contextual.

26 As to the evidence of Catherine, I see no error in his Honour's evaluation of

the position. Catherine's statement is clear and unqualified: she has 'no knowledge' of any of the girls, including her own daughter, complaining of inappropriate conduct by the applicant. Notwithstanding Catherine's advanced age, her statement is obviously of assistance to the defence, not least because it contradicts Jane's statement that she did complain to her mother. It can confidently be assumed, given what the prosecution said in this Court, that Catherine's statement would have gone into evidence without any adverse comment on its reliability.

27 Finally, the absence of work records is a regular feature of cases where historical sex offences are prosecuted. It is rarely viewed as being of any great significance in the assessment of forensic disadvantage.[22] In the present case, the only reference by the applicant to the missing records was in his submissions in reply, where his counsel conceded that this matter could be addressed by a forensic disadvantage direction.

28 On 24 February 2020, following a hearing, we granted the applicant leave pursuant to s 296(4)(b)(2) of the Criminal Procedure Act 2009 ('CPA') to appeal against an interlocutory order of Judge Tinney refusing to grant a permanent stay of a proceeding involving nine charges of sexual offences. The applicant allegedly committed those offences against his four nieces between 1963 and 1966. We also decided to allow the appeal, set aside the interlocutory order and grant a permanent stay.

29 The interlocutory order was made by the judge in a pre-trial ruling dated

18 February 2020.[23] On the same day, the judge refused to grant a certificate pursuant to s 295(3)(b) of the CPA to enable the applicant to seek leave to appeal against the interlocutory order.[24] The applicant then sought a review of that refusal under s 296(1) of the CPA.

30 Orders were made on 24 February 2020 reflecting our decisions. We said that we would give our reasons subsequently. These are those reasons.

31 The nine charges involved the offence of unlawful and indecent assault of a girl under s 55(1) of the Crimes Act 1958 as it was in force during the period of the alleged offending. The offence was classified as a misdemeanour and carried a maximum penalty of 3 years' imprisonment.

32 The offending is alleged to have occurred between 30 November 1963 and 30 September 1966. The applicant was then between 21 and 24 years of age. He is now 78.

33 The complainant in relation to charge 1 is Jane Jones, the daughter of the applicant's sister, Catherine Jones, and her husband Christopher Jones. Jane was aged 9 during the period of the alleged offending against her, namely, between 30 November 1963 and 1 January 1964. Jane is now 66.

34 The complainant in relation to charge 2 is Mary Smith, the daughter of the applicant's sister, Patricia Smith, and her husband Peter Smith. Mary was aged 11 during the period of the alleged offending against her, namely, between 21 October 1965 and 1 March 1966. Mary is now 65.

35 The complainant in relation to charges 3-7 is Emily Smith, the daughter of Patricia and Peter. Emily was aged between 6 and 9 during the period of the alleged offending against her, namely, between 1 January 1964 and 30 September 1966. Emily is now 63.

36 The complainant in relation to charges 8 and 9 is Lisa Smith, the daughter of Patricia and Peter. Lisa was aged between 5 and 7 during the period of the alleged offending against her, namely, between 1 January 1964 and 30 September 1966. Lisa is now 61.

37 The original indictment also contained a tenth charge of unlawful and indecent assault of a girl. The complainant was Theresa Smith, the daughter of Patricia and Peter. Theresa was born on 10 July 1963 and the alleged offending against her took place when she was 2 or 3 years of age. Theresa is now 56.

38 Geoff and Victoria Morton were the parents of the applicant, Catherine and Patricia and four other children. Catherine was the eldest child and the applicant was the youngest. Geoff and Victoria and all of their children, other than Catherine and the applicant, are deceased. Patricia died in 2012.

39 Catherine is 90 years old and has a poor memory. Both her husband, Christopher, and Patricia's husband, Peter, are deceased.

40 The charges against the applicant were brought following the making of statements to police by Theresa on 13 July 2015 (when she was aged 52), Mary on 31 July 2015 (when she was aged 60), Jane on 23 April 2016 (when she was aged 62), Lisa on 15 November 2016 (when she was aged 58) and Emily on 7 September 2017 (when she was aged 60).

41 The applicant was interviewed by police on 14 September 2017 when he was aged 75. He denied all the allegations against him.

42 Catherine made a statement to police on 14 May 2019.

43 The 10 charges on the original indictment were listed for a joint trial in the County Court on 17 February 2020. In November 2019, the applicant applied for a permanent stay of those charges. The application was heard by Judge O'Connell. On 2 December 2019, he granted a permanent stay in relation to charge 10 but refused to stay the other charges.[25] He also decided that the evidence of Jane, Mary, Emily and Lisa was cross-admissible as tendency evidence in support of the charges against all of the complainants.

44 The prosecution filed a new indictment containing charges 1-9. These charges were listed for trial before Judge Tinney on 17 February 2020. The applicant made a fresh application to Judge Tinney for a permanent stay of those charges. The applicant relied on the combined effect of the presumptive prejudice caused by the lengthy delay and certain specific prejudice. The specific prejudice was said to arise from matters such as the death of key witnesses (particularly Patricia, Geoff and Victoria), Catherine's poor memory and the unavailability of important records, including those relating to the applicant's employment for the period of the alleged offending.

45 As we have already stated, Judge Tinney refused to grant a stay. However, on the applicant's application, he decided to exclude evidence given by Mary, Emily and Lisa that they complained to Patricia about the applicant's conduct at the time of the alleged offending.[26] That evidence is set out at [78], [80] and [81] below ('complaint evidence'). The judge also decided to exclude the evidence referred to at [81] below, namely Lisa's evidence that she was sent home from school for sexualised behaviour. In both cases, the evidence was excluded under s 137 of the Evidence Act 2008. However, the judge warned the applicant that if any question is put or statement is made during the trial which suggested to the jury that the complainants had not made a timely complain[27] the complaint evidence would be admitted.27

46 As noted earlier, the applicant sought review of Judge Tinney's refusal to certify. Under s 295(3)(b) of the CPA, where an interlocutory decision does not concern the admissibility of evidence, a party may not seek leave to appeal unless the judge who made the decision certifies that it is 'of sufficient importance to the trial to justify it being determined on an interlocutory appeal'. The ground on which the applicant relied was that the judge 'erred by failing to conclude that his decision was attended by sufficient doubt to warrant certification'.

47 The applicant sought leave to appeal against Judge Tinney's refusal to grant a stay on the ground that, in the light of 11 specified matters, the judge 'erred in the exercise of his discretion to refuse to permanently stay the Indictment'. Those matters are set out at [106] below.

48 Section 297(1) of the CPA provides that the Court of Appeal may give leave to appeal against an interlocutory decision only if, having regard to a number of matters, it is in the interests of justice to do so. These matters include whether the determination of the appeal may render the trial unnecessary or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial.

49 The applicant did not contend that the judge misdirected himself or made any specific error. The applicant relied on the final ground identified in House v The King,[28] namely that the judge's decision was unreasonable or plainly unjust. It was common ground before us that, in order to succeed on that ground, the applicant had to satisfy us that it was not reasonably open to the judge on the material before him to reach the conclusion that he did.[29] In granting the relief sought by the applicant, we were so satisfied.

50 During the period of the alleged offending, the applicant's sister, Catherine, lived with her husband, Christopher, and their children in a small house in Fitzroy. Christopher's parents also lived there. According to Catherine's statement to police, the house had three small bedrooms, a lounge room and a kitchen.

51 Catherine and Christopher had four children in addition to Jane, three boys and one girl. Jane was the eldest child.

52 In her statement, Catherine stated that the applicant visited her house in Fitzroy often but she cannot say if he stayed for any periods of time. She also stated that she cannot be specific about when the applicant visited or whether her sister, Patricia, and her daughters were there when he visited. She added that a very good friend of Christopher, Timothy White, visited the Fitzroy house from time to time.

53 During the period of the alleged offending, Patricia lived with her children in a two storey house in Port Melbourne. The ground floor comprised a kitchen and dining/lounge area, with an external toilet and laundry. The upper level comprised a lounge room, three bedrooms, a bathroom and a toilet.

54 Initially, Peter lived at the Port Melbourne house with Patricia and their children. As a result of his violent behaviour, his marriage to Patricia broke down and he moved out of the house. The precise time at which Peter did so is unclear. Around the time of Peter's departure, Geoff and Victoria Morton moved into the Port Melbourne house to assist Patricia to look after the children, particularly when she was at work. The prosecution alleges that the applicant also moved into the house at the same time as Geoff and Victoria, and that the offending the subject of charges 2-8 took place while he resided there.

55 According to Catherine's statement, Patricia and her children stayed at Catherine's house in Fitzroy due to Peter's violent behaviour. The timing of any such stays is unclear.

56 The following summary of the applicant's alleged offending in relation to charges 1-9 is based on the complainants' statements to police, the summary of prosecution opening and the decision of Judge O'Connell.[30]

57 In around December 1963, the applicant stayed at Catherine and Christopher Jones' house in Fitzroy. Jane was 9 years old at the time and was in Year 4 or 5. The applicant stayed in her bedroom because there was no room in her brothers' bedroom.

58 On one evening, Jane was woken up by the applicant getting into her bed. She asked him 'what are you doing?' and he told her to 'shut up'. He lifted up her nightie and inserted his finger into her vagina causing her extreme pain (charge 1). She went to yell out, however the applicant placed his hand over her mouth and told her to be quiet or he would hurt her.

59 After the applicant returned to his bed, Jane lay awake because she could still feel pain in her vaginal area. She then went to the kitchen to get a drink of water. While she was there, she told her mother that the applicant had just hurt her and pointed or looked to her vaginal area. Her mother told her to stop telling lies and making up stories, then backhanded her around the head and told her to go back to bed.

60 Patricia and Peter Smith separated in November 1963. The applicant came to live at their house in Port Melbourne in Term 3 of 1964 while Geoff and Victoria also lived there. The applicant sexually assaulted Mary during the following two years from 1965 until September 1966. During that period, she was in Years 5 and 6.

61 The specific incident the subject of charge 2 occurred after Mary's 11th birthday on 21 October 1965 and before February 1966. The applicant was sitting on the couch in the upstairs lounge room, watching television. Somehow she ended up sitting on his lap, across his knees with her back to his left side and her legs facing his right side. While she was sitting on the applicant's knees, he slid his right hand under her dress and touched her vagina. The applicant then put his fingers beneath her underwear and then inside her vagina. The applicant told her not to tell anyone otherwise she would get a hiding, and she kept quiet.

62 The applicant sexually assaulted Mary on more than one occasion, on the couch in the upstairs lounge, with the applicant sitting in the same position (uncharged acts).

63 After Peter Smith left the Port Melbourne house in around November 1963, Geoff, Victoria and the applicant stayed there. The applicant slept in the downstairs lounge area on a sofa bed.

64 The applicant first sexually assaulted Emily when she was aged between 5 and 7 years. The first incident, which is the subject of charge 3, occurred when Emily and the applicant were in the upstairs lounge room. He was sitting on the couch and had her on his knee. He rubbed his hand down past her breast, towards her groin area. He then went underneath her underwear and touched her vagina. He then asked her whether she liked it.

65 Counsel for the applicant informed us that, during the committal hearing, in response to a question as to the circumstances in which the offending the subject of charge 3 ceased, Emily stated that the offending stopped because someone entered the room and she thought that person was her mother.

66 The conduct the subject of charge 4 occurred when Emily was 7 years old. The applicant was sitting on a chair in the upstairs lounge room and Emily was sitting on his lap. He put his finger into her vagina.

67 On another occasion, Emily was in the upstairs lounge room sitting on a chair when the applicant came in. She sat on his knee and he touched her hips and vagina (uncharged acts). He removed his penis from his pants and asked her to touch it but she did not want to. He grabbed her hand and put it on his penis. She pulled her hand back but he grabbed it again, placed it on his penis and asked her to stroke it (charge 5).

68 The applicant continued to sexually assault Emily by putting his finger in her vagina or playing with her vagina on a weekly basis for about two years. He would sexually assault her on the couch in the upstairs longue room. He would touch her body, place his hand underneath her underwear and touch her vagina. The touching would continue for a while until eventually the applicant penetrated her vagina with his finger (uncharged acts).

69 The applicant would also touch Emily's vagina in her bedroom at night while she was in bed (uncharged acts). He would tell her to be quiet and not to wake up the other children. He also told her not to tell her mother as it would hurt her and that she had been through enough. He also said that if Emily complained, people would be disappointed with her and that she would be blamed. He told her that 'you know you like it' and 'I'm only doing what you know you want me to do'.

70 The incident the subject of charges 6 and 7 was the last occasion on which the applicant sexually assaulted Emily. That incident occurred one evening in mid-1965 when Emily was 8 years old and in Year 2. She and the applicant were in the downstairs lounge where he had his bed. Her grandparents were in the upstairs lounge. She was sitting on the applicant's knee and he put his hand under her dress and underwear. He touched her vagina and had her play with his penis with her hand.

71 The applicant sexually assaulted Lisa when she was living in the house in Port Melbourne after her father had left the family home.

72 On one occasion, she was asleep on the couch in the upstairs living room when the applicant woke her up. He opened her legs and penetrated her vagina with his fingers (charge 8). He also showed her where her clitoris was by touching it with his hand and said that she would enjoy this when she was older. Theresa or Emily were also present at the time.

73 The applicant sexually abused Lisa at the Port Melbourne house on three or four more occasions (uncharged acts). On each occasion, Lisa was on the couch in the lounge room. He touched her vagina, showed her where her clitoris was and touched her breasts.

74 The applicant continued to sexually assault Lisa after the family had moved from Port Melbourne to Patricia's house in Fitzroy. One incident occurred at the kitchen table during spring or summer when Lisa was standing up and brushing Patricia's hair. The applicant came into the room, placed his hand up her legs under her clothing and inside her vagina (charge 9). She told him to stop, and started to run away. She received a hiding from Patricia as she did not finish brushing her hair.

75 The applicant digitally penetrated Lisa's vagina on another four or five occasions while they were living in the Fitzroy house (uncharged acts). There were also occasions when the applicant would rub her legs and buttocks or put his hand up her dress.

Excluded evidence of Theresa Smith relating to stayed charge 10

76 The applicant sexually abused Theresa when she was around 2 or 3 years old and they were living in the house in Port Melbourne. Early one morning, Theresa got up to use the outside toilet downstairs. When she returned into the house and walked past the applicant, he called her over to him. He lifted her into his bed and took off her underwear. He then lifted her up on top of him and penetrated her vagina with his penis (charge 10). The resulting pain lasted a long time and she was unable to walk properly. Patricia took Theresa to hospital when Patricia became aware of the soreness to Theresa's vagina. The applicant was then forced to leave the house.

77 We note that no hospital records are available from the Queen Victoria Hospital, where Theresa was said to have been taken by Patricia after the alleged offending against her. Hospital records from other hospitals have been obtained by the informant but no attendance could be linked to an injury to Theresa's vagina when she was 2 or 3 years old.

78 In her statement Mary described her complaint to her mother as follows:

I know that Mum had somehow discovered that [Theresa] was sore in the vaginal area, I remember Mum took [Theresa] to the Queen Victoria Hospital, I do not know the end result but can clearly remember sometime after Mum took [Theresa] to the hospital I was in the downstairs kitchen and she asked me, has [the applicant] ever touched you where he is not supposed to, or words to that effect. I was petrified as I believed I was going to get a hiding, I remember feeling the fear of getting a hiding as I had received hidings in the past because of an adult creating the reasoning for them.

Although I was very scared I remember saying to Mum, yes, Mum seemed calm and now in retrospect probably wasn't surprised by my reply ... I cannot say what Mum did next but do know from that point on [the applicant] was not at the house. I do know that from a later conversation with Mum she told me that she had gone to Grandpa and demanded that he get [the applicant] out of the house before she got home, or words similar.

79 In her statement, Mary stated that, apart from her conversation with Patricia set out at [78] above, she had not spoken to anyone about the alleged offending until recently when she spoke about it - but not in detail - to other family members, in particular Theresa and Jane. It was then that she became aware that she was not the only one that the applicant had sexually abused.

80 In her statement, Emily described the complaint she made to her mother the day after the incident the subject of charges 6 and 7,[31] as follows:

The next day I remember being in the kitchenette area downstairs when Mum asked me if [the applicant] had ever touched me, she asked me if my Uncle had ever touched me or words similar. I knew exactly who she was referring to, I replied yes, I got the impression that either one or two of the other girls had said something to her. I remember Mum telling me that he would never get the opportunity to do it again as he would be leaving.

81 In her statement, Lisa described the complaint that she made to her mother in the following terms:

What [the applicant] was doing to me was affecting my own behaviour, by that I mean I can remember being sent home from ... school in Prep for playing with myself in class. I believe it was at this time that Mum was made aware of what was going on, I believe at the time both myself and [Emily] approached Mum and she finally listened to us. At the time I do not remember [Mary] being involved, we tried to tell Mum and then this was when we moved house.

82 In her statement, Lisa stated that later on in life she had discussions with her sisters and they were now all aware that they were all sexually abused by the applicant.

83 As we have already stated, evidence as to Lisa being sent home from school for sexualised behaviour, as set out at [81] above, was also excluded by Judge Tinney.

84 In his record of interview dated 14 September 2017, the applicant denied all of the allegations made by the complainants and relevantly said the following:

(a) He resided at the Port Melbourne house with his parents, Geoff and Victoria, his sister, Patricia, and her four children Mary, Emily, Lisa and Theresa for three or four years.

(b) When he commenced living there, the four siblings were aged 10 and under. He thought that Patricia's husband, Peter, was present.

(d) While he was living in the Port Melbourne house, he was employed in Victoria and worked every day.

85 As we have already stated, Catherine is 90 years of age and signed a statement on 14 May 2019. In that statement, she described her personal and family circumstances as best as she could. Her description of her family indicates that, as adults, she and her siblings maintained infrequent contact and did not know what was happening in each other's lives.

86 Catherine stated that her physical health is 'not very good' and that she does not 'want to go to Court' in relation to the charges against the applicant. She repeatedly emphasised that her memory is poor. Her statements about her memory included the following:

• 'I used to be able to remember ... all [of Jane's schools] but now days it is escaping my memory'

• 'my memory is not what it was, I forget a lot of the fine details'

• 'it is a very long time ago and it is hard for me to remember'

• 'my memory is failing me, at times I recall things and other times I cannot'.

87 In response to a question whether Patricia's daughters ever combed Catherine's hair when they visited her house, she stated:

I can remember them combing and brushing my hair at Fitzroy in the kitchen, I had long hair at the time and still do. I would usually wear it up and under a hairnet. I cannot remember which of the girls specifically combed my hair or if it was when only one of them was there or not, or if anyone else was there, I cannot remember the specifics. I can say though if they were brushing my hair they were behind my, my back to them, it was the only way they could do it to be able to brush it, as they were kids I would have to sit down so they could reach.

88 In response to a question whether Catherine had any knowledge of the applicant interfering with or sexually molesting children, she stated:

I have answered no, not to my knowledge, I have no knowledge of any of the girls in the family, [Patricia's] daughters or my own daughter coming to me complaining of [the applicant] touching them inappropriately or in a sexual manner. At times he would be annoying to [Jane], by that I mean tormented her, but nothing I saw or heard of a sexual nature.

89 It appears that, during some years in the 1960s, the applicant lived in South Australia and worked as a truck driver. However, none of his employment records, tax returns or driver's licences for the period of the alleged offending are now available. The first record of him on the Victorian electoral roll is from 1970, when he was registered at a different address in Port Melbourne.

90 In addition, floor plans of the Port Melbourne and Fitzroy houses are unavailable.

91 Apart from the deceased individuals to whom we have already referred, other potential witnesses who are no longer alive are Timothy White, Christopher's parents and Barry Robertson (whom the applicant identified as his employer when he worked as a truck driver during the relevant period).

Principles relating to permanent stay of criminal proceedings

92 The following summary of the principles has been adapted from Brewer v The Queen.[32]

93 A court should only grant a permanent stay in rare or exceptional circumstances where 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'.[33] Unacceptable injustice or unfairness can result from 'a probable forensic disadvantage which is incurable'.[34]

94 In Jago v District Court (NSW),[35] Mason CJ described the position as follows:

[T]he touchstone in every case is fairness. ...

...

The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused's right to be protected against unfairness in the course of criminal proceedings cannot be precisely defined in a way which will cover every case. But they will generally include such matters as the length of the delay, the reasons for the delay, the accused's responsibility for asserting his rights and, of course, the prejudice suffered by the accused. ... In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare. ...

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' ... Where delay is the sole ground of complaint, an accused seeking a permanent stay must be 'able to show that the lapse of time is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute'...[36]

95 In Hermanus v The Queen,[37] Priest JA (with whom Maxwell P agreed) set out the following propositions which he drew from Osborn JA's judgment in R v FJL[38] and the cases cited by Osborn JA (with whom Redlich JA and Sifris AJA agreed) in that case:

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.

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.

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. 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.

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

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.

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.[39]

96 Priest JA also referred to the following summary of the principles outlined in a decision of the Supreme Court of New Zealand:

(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.[40]

97 Hermanus involved a delay of 39 years. Priest JA accepted 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':[41]

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.[42]

98 Priest JA stated, however, that even in cases of very long delay, it was 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'.[43] In that case, the trial judge had refused to stay the proceeding, holding that the forensic disadvantage to the accused could be sufficiently ameliorated by the exclusion of evidence of uncharged acts and by the giving of a forensic disadvantage direction. This Court refused leave to appeal.[44]

99 FJL concerned 12 charges of indecent assault on a child under 16 years of age and involved delay of between 32 and 38 years. This Court upheld a stay of one charge which involved offending said to have occurred in a bedroom adjacent to the accused's parents' bedroom. Given the death of the accused's parents, the loss of the potential to call evidence from them was held to be, in the circumstances, 'a probable forensic disadvantage which is incurable'.[45] The Court held that a stay was not warranted in relation to the other charges because any forensic disadvantage to the accused could be sufficiently ameliorated by a forensic disadvantage direction and the exclusion of particular evidence.

100 In Bauer v The Queen,[46] the alleged offending in respect of the charges relating to one of the complainants took place 46 or 47 years before the trial, and 44 years before that complainant's report to police. Priest JA considered that a delay of such magnitude was exceptional, even for a case of 'historical' sexual offences.[47] The types of prejudice arising from the delay included the deleterious effect of the delay on the reliability of the complainant's recollection, and the loss of opportunity to produce evidence as to time, place and circumstance that could cast doubt on the complainant's version of events. Priest JA considered, however, that if those were the only matters that could be pointed to, he 'might have felt constrained by authority to conclude that a permanent stay was not warranted'.[48]

101 There was one additional circumstance on the facts of Bauer which led Priest JA to conclude that the charges relating to one of the complainants should have been stayed by the trial judge. It was that the complainant had allegedly made a complaint to her mother who was now deceased. In circumstances where that evidence was ruled admissible by the trial judge, Priest JA held that 'the loss of the opportunity of adequately testing the circumstances surrounding the supposed complaint adds a further dimension to the prejudice already flowing to the [accused] through the effluxion of time'.[49]

102 The authorities demonstrate that, in the case of historical sex offences, the delay in the laying of charges produces various forms of forensic disadvantage. Some forms of disadvantage are general in nature, such as the impairment of memory, whilst others are specific, such as the death of a witness or the non-availability of documentary evidence. Some forms of disadvantage are of little consequence, such as the death of one of a large number of witnesses whose evidence is identical, whilst others are capable of drastically undermining a successful defence to a charge, such as the death of a sole exculpatory witness. Some forms of forensic disadvantage can be sufficiently ameliorated - by measures such as appropriate jury directions, the exclusion of some evidence or the severing of some charges from the indictment - whilst other forms are incurable.

103 Whether a claimed forensic disadvantage is based on a single factor or a combination of factors the task of the court in dealing with an application for a permanent stay is the same. It is to assess whether the lost opportunity to adduce exculpatory evidence, or to impugn evidence called by the prosecution, is such as to meet the high hurdle set by the test of whether the trial is rendered unacceptably unfair.

104 The judge referred to the relevant legal principles and reviewed the evidentiary issues on which the applicant relied in support of his application for a permanent stay of the proceeding. He acknowledged that the delay in the present case was 'extreme'[50] and resulted in some important witnesses being deceased, some records being unavailable and the memories of the applicant and surviving witnesses being adversely affected. He concluded that whilst these matters would involve some unfairness to the applicant, they would not result in the trial becoming unacceptably unfair.[51] That was because the unfairness could be sufficiently ameliorated by a combination of the evidentiary rulings he had made and directions he would be able to give to the jury.[52] The evidentiary rulings are the exclusion of the complaint evidence and Lisa's evidence that she was sent home from school for sexualised behaviour. The directions that would be made included a forensic disadvantage direction,[53] an anti-speculation direction and possibly an unreliable evidence direction.[54]

105 The judge refused to certify pursuant to s 295(3)(b) of the CPA because he was of the view that his decision to refuse a stay was not attended by any doubt.[55]

106 As we have already stated, the applicant sought leave to appeal against the judge's ruling refusing a stay on the ground that, in the light of 11 specified matters, he erred in the exercise of his discretion. Those matters are as follows:

(a) The extreme delay of 53-56 years between the events alleged and the commencement of the trial;

(b) The death of the applicant's parents who were said to be living in the Port Melbourne house at the time of the alleged offences against [Mary, Emily and Lisa Smith];

(c) The death of [Patricia Smith] who was said to:

1. have entered into the room and interrupted the commission of Charge 3;
2. be present in the Port Melbourne house at the time of some of the other alleged offences; and

1. the recipient of complaint evidence in respect of [Mary, Emily and Lisa Smith];

(d) The death of the father of [Jane Jones], who was said to be living in the Fitzroy house at the time of both the alleged offences against his daughter and [Lisa Smith].

(e) The unavailability of [Timothy White] who is also said to have been living at the Fitzroy house during the charged period;

(f) The unavailability of records pertaining to when and where the applicant was living, including government records;

(g) The unavailability of the applicant's work records during the charged period;

(h) The unavailability of records pertaining to the layout of the houses in which the offending is said to have taken place;

(i) The probable adverse effect on the credibility of an exculpatory witness as a result of delay;

(j) The danger of specific prejudice being magnified by the joint trial of the four complainants and the cross-admissibility of their evidence;

(k) The forensic disadvantage as a result of the combination of these matters being unable to be cured by the Trial Judge's rulings excluding some of the evidence or by the giving of directions.

107 Because the judge refused to certify, the application brought in this Court was for review of that refusal, under s 296(1) of the CPA. As already noted, the applicant's contention was that the judge erred by failing to conclude that his decision was attended by sufficient doubt to warrant certification.

108 The applicant submitted that a trial of the charges against him would be an abuse of process as the prejudice resulting from the delay of between 53 and 56 years from the date of the commission of the alleged offending and the trial cannot be remedied by exclusion of evidence or directions to the jury. Accordingly, so it was said, it was not reasonably open to the judge to refuse to permanently stay the indictment or to refuse to certify under s 295(3)(b) of the CPA.

109 The applicant argued that he would suffer from both presumptive and specific prejudice as a result of the delay. As to presumptive prejudice, he submitted that the judge gave inadequate weight to the delay as 'the necessary backdrop to the specific aspects of prejudice'. He contended that the delay has had the effect of reducing his defence of the charges to little more than a bald denial.

110 In oral submissions, the applicant submitted that whilst a forensic disadvantage direction under s 39 of the Jury Directions Act 2015 ('JDA') would address the issue of presumptive prejudice, it would not cure the specific prejudice that arises out of the inability to test the complaint evidence.

111 With regard to specific prejudice, it was argued that if Patricia had been alive she likely would have been able to give evidence as to the following issues:

(a) whether the applicant had the opportunity to commit charges 2-9;

(b) whether Theresa suffered a vaginal injury, which it is alleged prompted the complaint made by Mary;

(b) the inconsistencies between Lisa on the one hand, and Mary and Emily on the other, as to the trigger for the complaints;

(c) the inconsistency between Patricia's protective action in evicting the applicant from the Port Melbourne house following Mary's complaint, and Catherine's evidence that neither Patricia nor anyone else told her about the applicant's offending; and

(d) whether Patricia interrupted the commission of the conduct the subject of charge 3 as alleged by Emily.

112 The applicant submitted that, as Geoff and Victoria Morton were said to have been the primary caregivers of Patricia's children at the time of the alleged offences, if they were alive they would likely have been able to give probative evidence. According to the applicant, Geoff would have been able to give evidence as to his alleged conversation with Patricia after Mary complained. It was contended that Geoff and Victoria's unavailability compounds the issues arising from Patricia's unavailability.

113 The applicant conceded that Christopher Jones and Timothy White are less significant witnesses. However, according to him, as they resided or stayed at the Fitzroy house at the time that he was said to have resided there, their evidence would be relevant to charge 1 in circumstances where there was a dispute as to whether he stayed at the Fitzroy home and whether he shared a room with Jane during the period of the alleged offending.

114 The applicant argued that the unavailability of relevant records, as set out at [89] above, adds to the forensic disadvantage suffered by him.

115 The applicant contended that, in addition to the specific prejudice outlined at [111] above, the absence of Patricia hamstrung his defence by forcing him to seek the exclusion of the complaint evidence. According to him, this, coupled with the absence of Patricia, would lead to prejudicial artificialities in the evidence before the jury. It was argued that the exclusion of the complaint evidence meant that the statements he allegedly made to Mary and Emily, namely not to tell their mother about the offending, would be the only admissible evidence about the reason for the delay in reporting the offending. The applicant contended that the statements, when combined with the judge's obligation to direct the jury on delay pursuant to s 52 of the JDA, would take on artificial significance. This was said to be because it would appear to the jury that the statements were effective in preventing the complainants from telling anyone about the offending, when in fact they all said that they made relatively timely complaints.

116 The applicant accepted that the exclusion of the complaint evidence cured the specific prejudice that would have arisen by the prosecution using it to bolster the complainants' credibility. However, he contended that the exclusion of such evidence would deprive him of the opportunity to undermine the credibility and reliability of Mary's evidence by demonstrating that the alleged event which was said to be the 'trigger' for her complaint to Patricia did not occur. That event was taking Theresa to the Queen Victoria Hospital due to vaginal pain.

117 Similarly, so it was said, the exclusion of the complaint evidence deprived the applicant of an important basis for submitting to the jury that the incident which is the subject of charge 9 did not occur. That basis was that it was implausible that, following the alleged complaints to Patricia, she would have taken her daughters to Catherine's house in Fitzroy while the applicant was there or that she would not have warned Catherine of the applicant's offending.

118 The applicant argued that Judge O'Connell's ruling as to the cross-admissibility of the complainants' evidence of the offending and several uncharged acts will exacerbate the prejudice arising from the deaths of important witnesses and the loss of records.

119 The applicant submitted that directions to the jury would be inadequate in curing the disadvantages caused by the extreme delay. In particular, he submitted that a forensic disadvantage direction would be incapable of addressing the disadvantages caused by Patricia's unavailability nor could it alleviate the artificial basis of the remaining evidence, as set out at [115] above. Further, so it was said, an unreliable evidence direction under s 32 of the JDA would apply with greater force to the sole exculpatory witness, Catherine.

120 The applicant contended that, whilst the public interest points towards the prosecution of child sexual offences, it did not warrant the continuation of a trial that is unacceptably unfair.

121 The respondent submitted that the circumstances of the present case did not warrant the exceptional exercise of the Court's power to stay the proceeding. It acknowledged that the delay in the present case was at the 'extreme end'. However, according to the respondent, the delay is not determinative and its prejudicial effect could be remedied by the exclusion of evidence and directions to the jury, in particular a forensic disadvantage direction.

122 The respondent argued that none of the unavailable witnesses were eye witnesses to the alleged offending and that there were no 'critical, proven or likely' prejudices to the applicant which justified a permanent stay of the proceeding. The respondent further contended that the delay did not outweigh the public interest in bringing the charges against the applicant to trial.

123 As to the allegations of specific prejudice to the applicant arising from the unavailability of Patricia, the respondent argued that she was not a central witness. It was contended that any evidence that she may have been able to give was purely speculative. In particular, so it was said, there was no evidence that she would have contradicted any of the complainants' evidence or that her evidence would have likely impacted the credibility of any of the complainants.

124 According to the respondent, the suggestion that Patricia would have warned her sister, Catherine, about the applicant's offending is speculative and the applicant would be able to question Catherine as to what she was, or was not, told by her sister. In oral submissions, the respondent did, however, acknowledge that Catherine was an important exculpatory witness and that the quality of her evidence has been eroded by the passage of time.

125 As to the other unavailable witnesses, including Geoff and Victoria Morton, Christopher Jones and Timothy White, the respondent argued that the evidence that those witnesses might have been able to give is also speculative and any deficiencies are capable of being cured by a direction to the jury.

126 In oral submissions, the respondent acknowledged that, when combined, the factors relating to the unavailability of evidence, result in some unfairness to the applicant in running his case. However, it was said that these factors did not amount to an unacceptably unfair trial.

127 As to the exclusion of the complaint evidence, the respondent submitted that Patricia's death did not force the applicant to seek the exclusion of that evidence, but rather that was a forensic decision made by him. Accordingly, so it was said, the applicant cannot now complain that he has been disadvantaged by making that forensic decision. It was also argued that if a direction about delay in complaining were given under s 52 of the JDA, it would be expressed in neutral terms.

128 The respondent argued that the applicant would have the ability to cross-examine the complainants in order to establish any inconsistencies in their evidence, as well as in relation to any conversation between Patricia and Geoff about the applicant leaving the Port Melbourne house.

129 The respondent contended that the applicant had failed to establish that the judge's decision to refuse to permanently stay the proceeding was unreasonable or plainly unjust.

130 The respondent also contended that none of the matters raised by the applicant demonstrated that it was not open to the judge to refuse to grant the certification.

131 On any view, this is a rare and exceptional case. The cumulative effect of the presumptive and specific prejudice to the applicant resulting from the delay of between 53 and 56 years between the commission of the alleged offending and the trial is such as to incurably deprive him of a fair trial. We stress that it is the combined impact of the various factors going to presumptive and specific prejudice, rather than any individual factor, that informed our opinion.

132 We turn first to presumptive prejudice. We were informed by counsel that the abovementioned delay of between 53 and 56 years is the longest in this State - and possibly nationally - for historical sexual offences. That is also likely to be so for the delay of between 50 and 53 years between the alleged offending and the complaints made to police. The respondent has properly conceded that the delay was at the 'extreme end'. The judge was right to describe it as 'extreme'. The applicant is not responsible for any part of the delay.

133 We accept that the length of the delay and the reasons for it are only two of the factors that are relevant to the question whether it is possible for the applicant to receive a fair trial. Nevertheless, the extreme nature of the delay heightens the force of both the presumptive and specific prejudice to which it gives rise in the present case.

134 As a matter of common experience, the passage of up to 56 years since the commission of an alleged offence cannot but diminish memory and render unavailable documents and other independent evidence that create a context which assists in the recollection or reconstruction of relevant events. The problem is not only that relevant events cannot be recollected accurately but also that there is no longer any awareness - even of a vague nature - of the existence of previously known events which might be significant in the defence of an accused. As McHugh J said in Brisbane South Regional Health Authority v Taylor:

The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.[56]

135 In the present case, the presumptive prejudice arising from the extreme delay is very real. Catherine's statement graphically illustrates the adverse effects delay can have on memory. Employment records, floor plans of the Port Melbourne and Fitzroy houses and other independent evidence is no longer available to the applicant to assist him to rebut the complainants' allegations. Moreover, the lack of precision as to time and circumstance in the complainants' statements seriously impedes the applicant's ability to investigate the existence of an alibi or other exculpatory evidence.

136 There are no eye witnesses to the alleged offending. In any trial, the jury will be confronted with the evidence of the complainants in support of the alleged offending and the applicant's bare denials of the offending, either from the witness box, if he elects to give evidence, or in his record of interview. In these circumstances, the credibility and reliability of the complainants' evidence will be fundamental to the success of the prosecution case. Correspondingly, the applicant's ability to undermine the credibility and reliability of the complainants' evidence will be crucial to rebutting the prosecution case.

137 The extreme delay and the unavailability of records and other independent evidence have seriously impaired the applicant's ability to undermine the credibility and reliability of the complainants' evidence. He has been deprived of crucial contextual evidence which, in combination, may have enabled him to raise a reasonable doubt about the occurrence of some of the events on which success of the prosecution case depends. The evidence would have been available to him if the timing of the charges against him had been proximate to the occurrence of the alleged offending.

138 The prosecution case in respect of all of the charges has been bolstered by Judge O'Connell's ruling that the evidence of each complainant is cross-admissible in support of the evidence of the other complainants. As a result, the prosecution case cannot be described as weak. However, the bolstering of the prosecution case by Judge O'Connell's ruling brings into sharp focus the significant difficulties that we have already discussed in the applicant's ability to defend himself due to the extreme delay.

139 It may be that the prejudice to which we have already referred may have been capable of amelioration by a forensic disadvantage direction and other directions by the trial judge if they were the only difficulties confronting the applicant. However, these difficulties are not isolated. Their convergence with the circumstances causing specific prejudice creates an insurmountable obstacle to the applicant receiving a fair trial in the present case.

140 We now turn to the circumstances causing specific prejudice. There are many of them. The first is the deaths of a large number of witnesses, including Patricia Smith, Geoff and Victoria Morton, Christopher Jones, Christopher's parents, Timothy White, Peter Smith and Barry Robertson.

141 Patricia is a crucial witness for two key reasons. First, Emily alleges that it was Patricia's entry into the upstairs lounge room of the Port Melbourne house that resulted in the applicant ceasing the offending that is the subject of charge 3. If the charges had been laid on a timely basis, Patricia would have been able to give evidence of what interaction between the applicant and Emily, if any, she observed at the relevant time. Secondly, Patricia could have given evidence about important matters such as the layout of the Port Melbourne house, the family living arrangements, whether the applicant was ever alone with her daughters and the nature of any interaction between the applicant and her daughters.

142 If Patricia were alive, Judge Tinney would not have excluded Mary's evidence that she complained about the applicant's conduct to Patricia in around 1966 in the context of her taking Theresa to the hospital when she complained of vaginal pain.[57] As the informant's enquiries have indicated that Theresa had a number of hospital visits when she was a child, none of which involved vaginal pain, it is likely that Patricia would have given evidence that she did not take Theresa to hospital on account of any complaint of vaginal pain at the relevant time. As the putative hospital visit was said to be the catalyst for Mary's complaint about the applicant to Patricia, Patricia's evidence about the absence of the hospital visit had the potential to undermine the credibility and reliability of Mary's evidence.

143 We accept that the complaint evidence has been excluded by Judge Tinney as a result of an application by the applicant. To that extent, the applicant's inability to undermine the credibility and reliability of Mary's evidence - by being able to demonstrate that the complaint could not have occurred in the circumstances alleged by her - has resulted from a forensic decision by the applicant to seek to exclude the complaint evidence. However, it is Patricia's death which created an invidious forensic choice for the applicant.

144 If the applicant allowed the complaint evidence to be given for the purpose of undermining the credibility and reliability of Mary's evidence, he would have created a risk that the complaint evidence might support the prosecution case. On the other hand, by seeking exclusion of the complaint evidence, he relinquished one important basis for undermining the credibility and reliability of Mary's evidence.

145 The invidious forensic choice arising from Patricia's death is undoubtedly a factor to be taken into account in assessing the specific prejudice suffered by the applicant as a result of the delay in the laying of charges. However, we do not regard it as a critical factor.

146 It is true that the applicant has, in effect, been precluded from suggesting to the jury - either by way of submission or questioning of a witness - that the complainants had not made a timely complaint. That is because Judge Tinney made it clear that any such suggestion would result in a reversal of his decision to exclude the complaint evidence.[58] However, we are confident that the parties could have overcome this difficulty by agreement. One possibility is an agreed statement being read to the jury. Such a statement could be to the effect that Mary had said in her statement to police that she recollected that when Theresa was 2 or 3 years old she was taken to hospital in respect of a particular injury, but the hospital records for the relevant period do not contain any record of such an injury. Another possibility is the prosecution carefully leading evidence to this effect from Mary.

147 We are not persuaded by the applicant's submission that exclusion of the complaint evidence also resulted in unfairness to him because it created a risk that the jury might draw an incorrect inference about the reason for the delay in the complainants reporting the alleged offending to police. We are of the view that there is not a significant risk that the jury would infer that the reason for the delay was the statement the applicant allegedly made to Mary that she should not tell anyone about the offending otherwise she would 'get a hiding'. We are of the same view about the statement the applicant allegedly made to Emily that if she told Patricia, Patricia would be hurt and if she complained to anyone, people would be disappointed with her and blame her. Whilst the jury might infer that these statements explain why Mary and Emily did not report the offending before they became adults, it is unlikely that the jury would regard this as the explanation for any further delay after they became adults.

148 Geoff and Victoria Morton are also crucial witnesses. They lived at the Port Melbourne house during the period of the alleged offending against Mary, Emily and Lisa, and had responsibility for looking after them while Patricia was at work. Accordingly, they were well placed to give evidence on important matters such as the layout of the house, whether the applicant was ever alone with the three sisters, his interaction with them and the dynamics of the household generally.

149 There is no specific evidence that, at the time of the alleged offending, Geoff and Victoria were in close physical proximity to the place at which the applicant allegedly molested Mary, Emily or Lisa such that they would be in a position to give evidence as to what they saw or heard at that time. In that sense, their position is different from the accused's parents in FJL, whose bedroom was adjacent to the bedroom in which the alleged offending took place. Nevertheless, in the light of Geoff and Victoria's presence in the Port Melbourne house for the entire period of the alleged offending in that house between 1 January 1964 and 30 September 1966, they could have given important contextual evidence that had the potential to assist the applicant.

150 Christopher Jones' parents are in a similar position to Geoff and Victoria Morton. According to Catherine's statement, Christopher's parents lived with her and her family at the Fitzroy house. If the parents were alive, they would have been able to give evidence of the type described above in relation to Geoff and Victoria Morton. Likewise, Christopher could have given similar evidence if he were alive.

151 According to Catherine's statement, Timothy White was a frequent visitor to the Fitzroy house. Although it is not clear whether he stayed at the house for any period, he would have been able to give evidence of his observations of the applicant and his interaction with Jane and possibly Lisa.

152 The nature of any relevant evidence Peter Smith might have been able to give if he were alive is unclear. This is because there is uncertainty as to whether he had left the Port Melbourne house prior to the arrival of Geoff, Victoria and the applicant.

153 Finally, the applicant's former employer, Barry Robertson, might have been able to give evidence about the period during which he employed the applicant and where the applicant performed his duties. That evidence may have established that the applicant's work commitments as a truck driver were such that, at the time of the alleged offending, he could not have been present at the houses at which it allegedly took place.

154 It may be accepted that it cannot now be said with any precision what evidence the deceased individuals would have given if they were alive and the extent to which that evidence would have been exculpatory. It may also be accepted that an element of speculation is involved in discussing such evidence. However, the death of a large number of witnesses, some of whom would have been in a position to give highly probative evidence that was capable of supporting the applicant, has deprived him of important means of defending himself. Coupled with the other sources of prejudice in the present case, the death of these witnesses renders it probable that a trial of the charges against the applicant would be unacceptably unfair.

155 A very significant additional source of prejudice is the failing memory of the only known exculpatory witness, namely Catherine. As appears from our summary of Catherine's statement at [86] above, she can no longer remember, or is confused about, many circumstances that may potentially inform an assessment of the credibility and reliability of the complainants' evidence.

156 We accept that Catherine's observation, that she is not aware of any inappropriate behaviour by the applicant towards any of his nieces, will assist the applicant in defending all of the charges, particularly charge 1. We also accept that her description of occasions when her nieces combed her hair may assist the applicant in relation to charge 9. However, the extreme delay in the present case has significantly diluted the value of Catherine's statement for two key reasons.

157 First, Catherine's poor memory means that she is not able to give evidence of other specific events and circumstances that may be highly relevant to the applicant's defence.

158 Secondly, the repeated emphasis in Catherine's statement that her memory is poor, coupled with the qualified and hesitant manner in which she describes some events, may result in the prosecution submitting that her evidence is unreliable and should not be accepted. Such a submission would have the potential to undermine the evidence of the applicant's only known exculpatory witness.

159 Counsel for the respondent suggested to us that a possible solution to these difficulties would be for the prosecution to lead the exculpatory evidence in Catherine's statement from the informant instead of calling Catherine as a witness. By this means, so it was said, Catherine's poor memory would not be exposed to the jury. In our opinion, the proposed course would not overcome the prejudice to the applicant arising from the dilution of the value of the exculpatory evidence due to the effluxion of time. That is because the proposed course would create a serious risk that the jury would prefer the evidence of the complainants to that of Catherine. This risk would arise because the jury would have an opportunity to see and hear the complainants but would learn of Catherine's evidence indirectly and in a very brief and formal manner through the informant, without seeing or hearing her.

160 Catherine's poor memory adds significantly to the other factors to which we have already referred that render any trial of the applicant unfair. In combination, they result in an unfairness which is unacceptable and incapable of being cured by any judicial intervention such as the exclusion of evidence or the giving of directions.

161 We accept that there is a strong public interest in criminal charges being brought to trial - particularly in the case of very serious offences such as those in the present case - irrespective of the extent of any delay between the events the subject the charges and the trial. This is especially so for sexual offences against children who are often so traumatised by the offending that they do not report it until well into their adulthood.

162 However, as we said at the outset of our analysis, the circumstances of this case are rare and exceptional. We are firmly of the view that the factors we have discussed would, in combination, render a trial of the applicant in respect of the nine charges so gravely unfair that any conviction would bring the administration of justice into disrepute. There is no public interest in criminal charges being the subject of such a trial.

163 In arriving at his decision to refuse a permanent stay, the judge referred to the relevant principles and expressly took into account many of the matters to which we have referred. The applicant has properly conceded that the judge did not apply a wrong principle, misstate the facts, take irrelevant considerations into account or fail to take into account any material considerations. However, for the reasons we have discussed, we are, with respect, of the view that the only decision that was reasonably open to the judge was that the proceeding should be permanently stayed. It follows that the applicant has established the 'unreasonable or plainly unjust' ground identified in House v The King.[59]

164 The above conclusion necessarily means that the judge erred in refusing to certify under s 295(3)(b) of the CPA.

[1] To ensure that there is no possibility of identification of the complainants, this judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicant, the complainants and other individuals.

[2] DPP v [Morton] [2019] VCC 1938.

[3] Criminal Procedure Act 2009 s 295(3)(b).

[4] See eg R v FJL [2014] VSCA 57; (2014) 41 VR 572, 578 [31]; [2014] VSCA 57 (Osborn JA) ('FJL'); Jones (a pseudonym) v The Queen [2017] VSCA 111, [9] (Whelan and Ferguson JJA and Kidd AJA) ('Jones').

[5] Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 341 [38]; [2015] VSCA 2 (Priest JA) ('Hermanus'); Brewer (a pseudonym) v DPP [2017] VSCA 117, [10] (Maxwell P and Kyrou JA) ('Brewer').

[6] See DPP v Karazisis [2010] VSCA 350; (2010) 31 VR 634, 662-663 [127]-[128]; [2010] VSCA 350 (Ashley, Redlich and Weinberg JJA); Clarkson v The Queen [2011] VSCA 157; (2011) 32 VR 361, 384 [89]; [2011] VSCA 157 (Maxwell ACJ, Nettle, Neave, Redlich and Harper JJA).

[7] (2015) 44 VR 335; [2015] VSCA 2.

[9] [1989] HCA 46; (1989) 168 CLR 23, 33-4; [1989] HCA 46.

[10] See FJL [2014] VSCA 57; (2014) 41 VR 572, 575 [18]; [2014] VSCA 57 (Osborn JA); Jones [2017] VSCA 111, [77] (Whelan and Ferguson JJA and Kidd AJA); Shannon (a pseudonym) v The Queen [2019] VSCA 27, [24] (Priest, Kyrou and Kaye JJA) ('Shannon'); Pound v The Queen [2019] VSCA 279, [19] (Emerton JA) ('Pound').

[11] Cf FJL [2014] VSCA 57; (2014) 41 VR 572, 579-580 [38]; [2014] VSCA 57 (Osborn JA); Green (a pseudonym) v The Queen [2017] VSCA 277, [83], [102] (Priest, Kaye and Coghlan JJA) ('Green').

[12] See, eg, Jones [2017] VSCA 111; Brewer [2017] VSCA 117; Kenny (a pseudonym) v The Queen [2018] VSCA 220 ('Kenny'); Carson v DPP [2019] VSCA 4 ('Carson'); Shannon [2019] VSCA 27.

[13] (2015) 46 VR 382; [2015] VSCA 55 ('Bauer').

[15] [2017] VSCA 277, [83], [102] (Priest, Kaye and Coghlan JJA).

[16] [2019] VSCA 279, [110]-[113] (Emerton JA).

[17] See joint reasons [142].

[18] [2015] VSCA 2; (2015) 44 VR 335, 343 [40]; [2015] VSCA 2.

[19] See Bauer [2015] VSCA 55; (2015) 46 VR 382, 406 [112]; [2015] VSCA 55 (Priest JA).

[20] See Jones [2017] VSCA 111, [69] (Whelan and Ferguson JJA and Kidd AJA); Carson [2019] VSCA 4, [16]-[17] (Maxwell P and T Forrest JA).

[21] See Jones [2017] VSCA 111, [66] (Whelan and Ferguson JJA and Kidd AJA); Kenny [2018] VSCA 220, [69], [72] (Taylor AJA); Carson [2019] VSCA 4, [17] (Maxwell P and T Forrest JA).

[22] See, eg, Shannon [2019] VSCA 27, [28] (Priest, Kyrou and Kaye JJA).

[23] DPP v [Morton] (Unreported, County Court of Victoria, Judge Tinney, 18 February 2020 (Stay Ruling)) 162.27-162.28.

[24] DPP v [Morton] (Unreported, County Court of Victoria, Judge Tinney, 18 February 2020 (Certification Ruling)) 202.1-202.11.

[25] DPP v [Morton] [2019] VCC 1938.

[26] The applicant did not apply for an order excluding the evidence of Jane set out at [59] below that she complained to her mother, Catherine, about the applicant's conduct.

[27] Transcript of Proceedings (18 February 2020) 134.8-134.21.

[28] (1963) 55 CLR 499; [1936] HCA 40.

[29] Brewer v The Queen [2017] VSCA 117, [10] ('Brewer').

[30] DPP v [Morton] [2019] VCC 1938.

[31] See [70] above.

[32] [2017] VSCA 117, [44]-[53].

[33] Hermanus v The Queen [2015] VSCA 2; (2015) 44 VR 335, 341-2 [39]; [2015] VSCA 2 ('Hermanus') (citations omitted). See also Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 31, 58-61, 76; [1989] HCA 46 ('Jago').

[34] R v FJL [2014] VSCA 57; (2014) 41 VR 572, 580 [38]; [2014] VSCA 57 ('FJL').

[35] (1989) 168 CLR 23; [1989] HCA 46.

[36] Jago [1989] HCA 46; (1989) 168 CLR 23, 33-4; [1989] HCA 46 (citations omitted). See also Jago [1989] HCA 46; (1989) 168 CLR 23, 58-61; [1989] HCA 46.

[37] (2015) 44 VR 335; [2015] VSCA 2.

[38] (2014) 41 VR 572; [2014] VSCA 57.

[39] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 342-3 [40]; [2015] VSCA 2 (citations omitted).

[40] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 343 [41]; [2015] VSCA 2 citing CT v The Queen [2014] NZSC 155, [32].

[41] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 344 [43]; [2015] VSCA 2.

[42] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 344 [43]; [2015] VSCA 2.

[43] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 344 [44]; [2015] VSCA 2. This was said to underpin the legislative requirements for the giving of forensic disadvantage warnings and the reasoning in Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79, 91; [1989] HCA 60.

[44] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 344-5 [45]-[48]; [2015] VSCA 2.

[45] FJL [2014] VSCA 57; (2014) 41 VR 572, 580 [38]; [2014] VSCA 57.

[46] (2015) 46 VR 382; [2015] VSCA 55 ('Bauer').

[47] Bauer [2015] VSCA 55; (2015) 46 VR 382, 403 [100]; [2015] VSCA 55.

[48] Bauer [2015] VSCA 55; (2015) 46 VR 382, 403 [101]; [2015] VSCA 55.

[49] Bauer [2015] VSCA 55; (2015) 46 VR 382, 404 [104]; [2015] VSCA 55.

[51] Stay Ruling 162.2-162.3, 162.24-162.26.

[52] Stay Ruling 153.10-153.20, 162.3-162.7

[53] Jury Directions Act 2015 s 39.

[54] Jury Directions Act 2015 s 32.

[55] Certification Ruling 202.1-202.11.

[56] [1996] HCA 25; (1996) 186 CLR 541, 551; [1996] HCA 25 (citations omitted).

[57] See [78] above.

[58] See [45] above.

[59] (1936) 55 CLR 499, 505; [1936] HCA 40.