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Bennett (a pseudonym) v The King

Bennett (a pseudonym) v The King

Case [2025] VSCA 208 4 September 2025

Interlocutory Appeal

Stay of Proceedings

Unconscionable Conduct

Loss of Evidence

Delayed Investigation

Complainant’s Memory Issues

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2025 0026

GEORGE BENNETT (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]Because this is an interlocutory proceeding, a pseudonym has been used in place of the name of the applicant and the reasons have been prepared in a form which omits other identifying details.

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JUDGES:	BOYCE, ORR and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	7 March 2025
DATE OF JUDGMENT:	4 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 208
JUDGMENT APPEALED FROM:	DPP v [Bennett] (Unreported, County Court of Victoria, Judge Marich, 6 February 2025)

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CRIMINAL LAW – Interlocutory appeal – Refusal of permanent stay – Four charges of sexual penetration of child under 16 years, one charge of indecent assault and one charge of arson – Complainant aged between 9 and 15 and accused aged between 14 and 20 – Delay of 36 to 43 years since alleged offending – Delayed and inadequate four-year long police investigation – Issues with complainant’s memory – Unavailable and deceased witnesses – Loss of documentary evidence – Whether trial judge erred in only ordering permanent stay of arson charge – Whether accused in intractable forensic position about whether to cross-examine complainant on circumstances of stayed arson charge – Whether lost evidence merely contextual and speculative – Whether disadvantage to accused capable of being addressed through directions and evidentiary rulings – Leave to appeal granted – Appeal dismissed.

Criminal Procedure Act 2009, s 295; Jury Directions Act 2015, s 39.

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857; Walton v Gardiner (1993) 177 CLR 378; Dupas v The Queen (2010) 241 CLR 237; Jago v District Court (NSW) (1989) 168 CLR 23; R v Edwards (2009) 255 ALR 399; Newell v The King [2025] VSCA 160; Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50; Ballard (a pseudonym) v The King [2024] VSCA 26; Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529; Morton (a pseudonym) v The Queen [2020] VSCA 49; Kenny (a pseudonym) v The Queen [2018] VSCA 220; R v FJL (2014) 41 VR 672; Briggs (a pseudonym) v The King [2024] VSCA 80; Robbins (a pseudonym) v The Queen (2017) 269 A Crim R 244; Haynes (a pseudonym) v The King [2024] VSCA 207.

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Counsel
Applicant:		Ms J Kretzenbacher
Respondent:		Mr J McWilliams
Solicitors
Applicant:	Doogue + George
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BOYCE JA
ORR JA:

In December 2022, the applicant was charged with four counts of sexual penetration of a person aged between 10 and 16;[2] one count of indecent assault of a person under the age of 16;[3] and one count of arson.[4] The alleged sexual offences concern a single complainant, and are said to have occurred over a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bennett (a pseudonym) v The King

Details

AGLC: Bennett (a pseudonym) v The King [2025] VSCA 208
Case: [2025] VSCA 208
Decision Date: 4 September 2025

CaseChat Overview and Summary

The respondent, Bennett, appealed against the decision of the County Court of Victoria to refuse his application for a permanent stay of the proceedings against him. Bennett was charged with four counts of sexual penetration of a child under 16 years, one count of indecent assault and one count of arson. The complainant in the case was aged between 9 and 15 at the time of the alleged offending, while Bennett was aged between 14 and 20. The offences were alleged to have occurred between 36 and 43 years ago. The court was required to determine whether the trial judge erred in only ordering a permanent stay of the arson charge, and whether the accused was in an intractable forensic position about whether to cross-examine the complainant on the circumstances of the stayed arson charge. The court also had to consider whether the lost evidence was merely contextual and speculative, and whether the disadvantage to the accused capable of being addressed through directions and evidentiary rulings.

The Court of Appeal found that the trial judge was correct in refusing to grant a permanent stay of the proceedings in relation to all the charges against Bennett. The Court held that the delay and inadequate investigation were not so egregious as to warrant a permanent stay of all charges. The Court also found that Bennett was not in an intractable forensic position about whether to cross-examine the complainant on the circumstances of the stayed arson charge, as the complainant's evidence could still be tested on the other charges. The Court held that the lost evidence was not merely contextual and speculative, and that the disadvantage to the accused could be addressed through directions and evidentiary rulings. The Court dismissed the appeal and affirmed the decision of the County Court.

The Court of Appeal dismissed the appeal and affirmed the decision of the County Court. The Court held that the trial judge was correct in refusing to grant a permanent stay of the proceedings in relation to all the charges against Bennett. The Court found that the delay and inadequate investigation were not so egregious as to warrant a permanent stay of all charges. The Court also held that Bennett was not in an intractable forensic position about whether to cross-examine the complainant on the circumstances of the stayed arson charge, and that the lost evidence was not merely contextual and speculative. The Court found that the disadvantage to the accused could be addressed through directions and evidentiary rulings.

Orders