Bennett (a pseudonym) v The King

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.

---

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)

---

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.

---

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 period between 36 and 43 years ago. The alleged arson is said to have occurred in the same period. The applicant is now 57 years old and the complainant is now 53 years old.
[2]Contrary to s 48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[3]Contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
[4]Contrary to ss 197(1) and (6) of the Crimes Act 1958.
The applicant indicated that each element of each offence is in issue, with participation in each of the charged acts being the principal issue for determination at trial.
The applicant sought a permanent stay of all charges on the basis that the continuation of the charges would constitute an abuse of process, in that it would involve unacceptable unfairness to the applicant that is incapable of being addressed by any measure available to the trial judge. The prosecution conceded that the arson charge should be permanently stayed but opposed the application in respect of the remaining charges.
In a ruling delivered on 6 February 2025,[5] the trial judge ordered a permanent stay of the charge of arson and refused to order a permanent stay of the remaining charges. Pursuant to certification given by the trial judge under s 295(3)(b) of the Criminal Procedure Act2009 on 14 February 2025, the applicant seeks leave to appeal against this ruling. There is a single proposed ground of appeal, by which the applicant contends that the trial judge erred in refusing to permanently stay the remaining charges in light of the following matters:
[5]DPP v [Bennett] (Unreported, County Court of Victoria, Judge Marich, 6 February 2025) (‘Reasons’).
(a)the extreme delay of between 36 and 43 years between the alleged charged and uncharged acts and the commencement of the trial causing a significant forensic disadvantage, compounded by the delayed and inadequate investigation by the police;
(b)the intractable forensic position the [applicant] has been placed in about whether to introduce evidence in cross-examination of the circumstances of [the arson charge], where there are no documents available in respect of that charge;
(c)the loss and/or unavailability of documentary evidence in respect of:
(i)[the arson charge] (which was permanently stayed);
(ii)the complainant’s employment at Australian Power Steering; and
(iii)the [applicant] and complainant’s employment at I&S Bodyworks;
(d)the deaths of relevant witnesses including:
(i)the [applicant’s] brother, [Ryan Bennett], who lived in the bungalow with the complainant at the time the complainant alleges the applicant offended against him in that bungalow; and
(ii)the complainant’s brother, who the complainant said may have been present at the time of the alleged offending and who the complainant said the applicant may have also offended against;
(e)the unavailability of the complainant’s father …;
(f)the possible unavailability of the [applicant’s] mother; and
(g)the possible unavailability of a prior inconsistent statement of the complainant.
It was common ground that the applicable standard of appellate review is the ‘correctness’ standard. This means we are to determine whether the trial judge was correct to refuse the permanent stay of the remaining charges. The duty of this Court is to decide both the facts and the law of the case for itself, while making due allowance for any advantages enjoyed by the trial judge in seeing and hearing the evidence given by witnesses at the interlocutory hearing. If the Court considers that the trial judge was in no better position to decide the stay application, or if, after giving full weight to her decision, the Court considers that it was wrong, the Court must give effect to its own judgment. It is unnecessary to identify any error on the part of the trial judge.[6]
[6]Fox v Percy (2003) 214 CLR 118, 126–9 [25]–[31] (Gleeson CJ, Gummow and Kirby JJ); [2003] HCA 22; Warren v Coombes (1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9; GLJv Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857, 865–6 [16]–[17], 868 [24] (Kiefel CJ, Gageler and Jagot JJ), 881–2 [95]–[96] (Steward J), 892 [161] (Gleeson J); [2023] HCA 32 (‘GLJ’); Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50, [30] (Emerton P, Whelan JA and Elliott AJA) (‘Buchanan’); Ballard (a pseudonym) v The King [2024] VSCA 26, [46] (Priest JA, Walker JA agreeing at [56], Croucher AJA agreeing at [57]) (‘Ballard’).
Applying that standard, for the following reasons, we consider that the trial judge was correct to refuse to permanently stay the remaining charges. We would grant leave to appeal but dismiss the appeal.

Summary of alleged offending

The prosecution alleges that the applicant and the complainant met on the way home from school one day in the early 1980s. They had a number of shared interests and became good friends.
The prosecution alleges that during the years after they met, the applicant engaged in a series of charged and uncharged sexual acts with the complainant. During the period over which these acts occurred, the complainant was aged between 9 and 15, and the applicant was aged between 14 and 20.

Initial uncharged acts

The first sexual incident between the applicant and the complainant is alleged to have occurred about six to 12 months after the applicant and the complainant met, when the complainant was between 9 and 10 years old. The two were in the complainant’s bedroom in his family home on Krone Street in Mordialloc. They were in bed together and the applicant was cuddling the complainant, with his hands on the complainant’s skin under his pyjamas. The applicant is alleged to have touched the complainant’s penis and backside underneath his clothes.
Not long after this incident, when the complainant was 10 years old, it is alleged that the applicant stayed overnight at the complainant’s home. The applicant got into bed with the complainant and again touched him underneath his pyjamas. The applicant then began slowly masturbating the complainant’s penis and tried to get the complainant to touch him. The complainant touched the applicant’s penis. He was scared, but the applicant told him that they were friends and that he would look after him. It is alleged that the applicant pulled the complainant’s pyjama pants down and rubbed his penis on the complainant’s backside, before putting saliva on his penis and inserting it in the complainant’s anus. The applicant held the complainant and thrust his penis into him for approximately two to three minutes, causing the complainant pain.
The prosecution alleges that following this incident, the applicant would regularly sexually penetrate the complainant in the complainant’s bedroom or in the shed at the complainant’s house. The applicant would offer the complainant presents or money to have sex with him, which he would say were in exchange for a ‘bummy’. It is alleged that there were approximately four to six occasions when this occurred in the complainant’s bedroom, which involved the applicant penetrating the complainant while lying in bed, using oil as a lubricant, which he got from a cup the complainant’s father kept in the bathroom. These are further uncharged acts. We refer below to additional uncharged acts alleged to have occurred in subsequent years.

Charge 1 (sexual penetration of a person aged between 10 and 16)

Charge 1 is a course of conduct charge that concerns approximately 10 to 20 occasions on which the applicant is alleged to have penetrated the complainant in the shed at the complainant’s family home over a five year period between 1982 and 1987, when the complainant was between 10 and 15 years old and the applicant was between 14 and 19 years old. On these occasions, it is alleged that the applicant positioned the complainant in a standing position near a crack in the wall so that he could see if anyone was coming. He used saliva as a lubricant, and on some occasions he would insert the handle of a screwdriver into the complainant’s anus until he was satisfied that the complainant was ‘ready’ to have anal sex with him.

Charge 2 (sexual penetration of a person aged between 10 and 16)

Charge 2 concerns events alleged to have occurred on the complainant’s 13^th birthday in August 1985, in a toilet block at the local football ground. The applicant, who was 17 years old at the time, is said to have given the complainant alcohol, causing him to become very drunk. The two were sitting on top of the concrete toilet block, when the applicant told the complainant that he wanted to ‘bum’ him. They went into the toilet block. The complainant leant against the wall and the applicant pulled the complainant’s pants down. The applicant spat in his hand, put the spit on his penis and had anal sex with the complainant.

Charge 3 (indecent assault)

Charge 3 concerns an event alleged to have occurred in a toilet at the premises of I&S Body Works in Mordialloc, where both the applicant and the complainant were working. The event is alleged to have occurred on a date in the three year period between August 1984 and August 1987, when the complainant was between 12 and 14 years old and the applicant was between 16 and 19 years old. The applicant was working as an apprentice painter, and had obtained a job for the complainant. There was an occasion where the applicant followed the complainant into the toilet at I&S Body Works and said words to the effect of, ‘your time to get off’. The applicant then played with the complainant’s penis and masturbated him for a period. The complainant ejaculated, although he was scared and did not want to.

Charge 4 (sexual penetration of a person aged between 10 and 16)

Charge 4 concerns an event that is also alleged to have occurred at the premises of I&S Body Works during the same three year period. It is alleged that the applicant and the complainant were alone at I&S Body Works and the applicant told the complainant he wanted to ‘bum’ him. The complainant said no, but the applicant told him that he had to do it or he would get people to come around and see the complainant’s parents. The two went to the toilet and the complainant bent over the toilet and held on to it. The applicant pulled the complainant’s pants down and put his penis into his anus. They had sex for a few minutes before the applicant ejaculated inside the complainant.

Charge 5 (arson)

The alleged arson, which was the subject of charge 5, was said to have occurred at a house in Lyonville owned by the complainant’s parents, where the complainant’s family would go on weekends. It was alleged that on 13 December 1986, when the applicant was 18 years old and the complainant was 14 years old, the applicant drove to the house with the complainant, having loaded up two to three jerry cans of fuel into the car. The applicant then made the complainant wait in the car, while he carried a can of fuel to the house. The complainant saw him go into the house through the front door and douse fuel out of the can on the way out. The complainant saw the applicant throw the can and run back to the car, and saw the house in flames as they drove away.

Charge 6 (sexual penetration of a person aged between 10 and 16) and remaining uncharged acts

Charge 6 and the remaining uncharged acts concern events alleged to have occurred in a bungalow at the back of the applicant’s family house on Eric Avenue in Mordialloc. The complainant’s parents had rebuilt the house at Lyonville and moved there. The complainant had not moved to Lyonville with them, but had instead moved in with the applicant’s family, living in the bungalow at the back of their property with the applicant’s brother, Ryan, for about one and a half to two years. The alleged uncharged acts consist of at least 10 occasions on which the applicant had sex with the complainant in the bungalow bathroom. The applicant would pull the complainant’s pants down, or make the complainant pull them down, and put his penis into the complainant’s anus while he was standing against the shower. Most of the time he would ejaculate inside the complainant.
Charge 6 concerns events alleged to have occurred in the bungalow on a date between August 1987 and August 1988 when the complainant was about 15 and a half years old and the applicant was 19 or 20 years old. The applicant and the complainant were watching a neighbour having sex through her window. The applicant forced the complainant to pull his pants down and told him that this was going to be one of the last times. The complainant said he didn’t want to and tried to get away, but the applicant grabbed or hit him. The applicant pulled his pants and underwear down and started touching the complainant’s penis with his hand. The complainant tried to push him away. The applicant spat on his hand, put his spit on his penis and pushed the complainant up against the shower door, with his hand around the complainant’s neck or head. The applicant let go of the complainant and pushed his penis into the complainant’s anus. The penetration lasted for two or three minutes and the applicant ejaculated inside of the complainant. The complainant was crying at the time.
It is alleged that the applicant penetrated the complainant on one or two further occasions, about which the complainant is unable to remember any detail.
It is alleged that when the complainant was around 16 years old, he and the applicant were fighting a lot. The complainant spoke to his father and told him that he wanted to move out of the applicant’s home. He subsequently moved in with his parents in Lyonville and only saw the applicant one more time, when he collected his belongings.

Defence case

The applicant gave a ‘no comment’ interview to police on 14 February 2020. He has indicated for the purpose of any trial that there is unlikely to be any dispute as to his age and date of birth; the complainant’s age and date of birth; his friendship with the complainant; that he lived at Eric Avenue in Mordialloc with his parents at the time of the alleged offending; that the complainant’s parents owned a property in Lyonville; and that he and the complainant both worked at I&S Body Works.

Evidence

A contested committal hearing was conducted over two days in July 2023. The brief of evidence included statements made by the complainant; his father; his mother; the applicant’s mother; Ian Lording, a former owner of I&S Body Works; Leonie King, a former acquaintance of the complainant and the applicant; and the informant, Detective Senior Constable Andrew McNess. The complainant, his parents, and Detective Senior Constable McNess were all cross-examined at the committal hearing.
Following the committal, and the indication from the applicant that he would apply for a stay of all charges, the prosecution gave notice that it intended to call additional evidence. The additional evidence included statements from three former informants. All four informants were cross-examined at a pre-trial hearing conducted before the trial judge in August and November 2024 pursuant to s 198B of the Criminal Procedure Act 2009. Shortly after the conclusion of the s 198B hearings, the trial judge heard submissions on the application for a permanent stay of all charges. The key evidence that is relevant to that application, and to this application for leave to appeal the judge’s ruling, is summarised below.

Complainant

The complainant made two statements, when he was 46 years old. The first statement was made on 27 February 2019 and the second on 15 July 2019.
The complainant said that he met the applicant when he was 8 or 9 years old and the applicant was in high school. He said the applicant was about 10 years older than him. He could not remember how they went from being friends to having sex. He said that in general, the applicant had sex with him by putting his penis into the complainant’s anus. This happened on at least 50 occasions from when the complainant was 10 years old to when he was about 16 years old.
The complainant said that the applicant would always bribe him, first with presents or cash. After a while the complainant lost interest in the money and presents because he was working and had his own money. The applicant started to threaten him not to tell anyone about what was happening. The applicant threatened to kill him and his family. The applicant’s family had a reputation for being very tough, so this scared the complainant.
The complainant gave an account of the circumstances of each of the alleged sexual offences, as well as the alleged uncharged acts. We will return to that account later in these reasons. However, we pause to note the following aspects, which are of significance for the purposes of the submissions made on this application:
(a)In relation to the initial uncharged acts, the complainant’s evidence is that the first occasion on which he was sexually penetrated by the applicant occurred on a night when the complainant’s mother had let the applicant sleep over in the complainant’s bedroom. The complainant said that the applicant stayed over at the family home on Krone Street many times. This started when the complainant was between 10 or 11 years old. The complainant’s parents were aware of this. His dad sometimes wasn’t at home because he was working, but his mum was always present.
(b)In relation to charge 2, the complainant’s evidence is that the applicant got him really drunk and that he ended up being taken to the hospital either later that night or the next morning. He said that the next day, his father took him to the Caribbean Gardens Market. He didn’t remember if this was for his birthday, or to punish him for being hungover. He said his father took him on the ferris wheel, which made him sick. I note that when cross-examined about this evidence at the committal, the complainant said that his mother had told his father that he was drunk the night before and his father put him on the ferris wheel to teach him a lesson for being so drunk. He said he could not recall seeking any medical treatment for being drunk.
(c)In relation to charge 3, the complainant’s evidence is that at the time of the alleged offending, his boss at I&S Body Works had gone to the doctor to get a rabies shot and told him to answer the phone while he was gone.
(d)In relation to charge 6 and the uncharged acts that are also alleged to have occurred in the bungalow at the back of the applicant’s family home, the complainant’s evidence is that the bungalow had two rooms and a bathroom/toilet. Ryan lived in the front bedroom. The complainant shared the bathroom where the offending was said to have occurred with Ryan, and the only entrance to the bathroom was in the complainant’s bedroom, which was only accessible via Ryan’s bedroom.

As to his employment at I&S Body Works, the complainant said he was not sure when he had started working there, but thought he would have been roughly 12 to 13 years old. He was hired by ‘Ian’, who was the boss. He worked as a cleaner, doing sweeping up, cleaning and getting rid of rubbish. He skipped school to go and work there. He worked there for about a year and a half to two years. The job finished when he got another job and got special permission to leave school after only doing a few months of high school. The other job was a full time job at ‘Australia Power Steering’. He would have been about 14 years old when he started there. His parents supported his application for special permission to leave school.
The complainant said that after the second incident at I&S Body Works (charge 4), he wanted to disappear and not face the applicant again. He was worried about his family being in jeopardy because the applicant had threatened throughout the relationship to hurt them and kill them if he told anyone the applicant was having sex with him. The applicant never said how he would kill them.
In relation to the arson charge, the complainant said that the applicant was jealous of the complainant’s parents because they had been taking him away on weekends to their house at Lyonville. The applicant didn’t like the idea of him spending time in Lyonville. He said that when he was 11 or 12 years old, the applicant burnt the house down. He described the incident in terms consistent with paragraph 16 above. He said that they drove to the house late at night in the applicant’s mother’s car. When they got there, the applicant told him to stay in the car. The applicant pulled jerry cans full of fuel out of the boot, as well as a garbage bag containing cans of food and alcohol that he planned to use to make it look like squatters had burnt the house down. The applicant put on gloves and went over to the house, where he went inside the front door and splashed fuel around. The applicant then came out of the house, threw a jerry can back towards the house and then ran into the car. The applicant took off his gloves and they took off in the car. The complainant saw the house gassed in flames. He said his father got an insurance payout at the time because they thought it was caused by squatters. The complainant didn’t tell anyone about this incident until recently.
The complainant said that when he was around 14 years old, he had a girlfriend for about six to 12 months called Leonie King, who was a couple of years older. The applicant was friends with her as well. The applicant was still abusing the complainant during the period while he was with Ms King. At one point during the period when they were together, the applicant got Ms King drunk and had his way with her. Ms King ended up seeing the applicant after she and the complainant had broken up. The complainant thought Ms King suspected that the applicant was having sex with him. He couldn’t remember if he mentioned anything to Ms King about what the applicant had been doing to him.
The complainant said that his parents moved to the rebuilt house in Lyonville when he was around 14 years old, at which point he moved in with the applicant and his family at their house on Eric Avenue. This was around the time he left school. The complainant lived in the bungalow at the back of the property with the applicant’s older brother, Ryan, for about one and a half to two years.
The complainant said that it was the applicant’s idea that the complainant move in with his family. He agreed to this because he had a job at ‘Melbourne Power Steering’, and no job to go to in Lyonville. He didn’t want to stay with the applicant, but the applicant promised him things were going to stop and the applicant’s parents told him they would look after him. He was dumb and young at the time. He had nowhere else to live and felt he had no choice because the applicant threatened to kill him and his parents if he didn’t do as the applicant said. The applicant was part of a gang called the ‘Mordi Boys’ and immediately before the complainant moved in with the applicant’s family, one of the ‘Mordi Boys’ came around to the complainant’s family home and punched his father. The complainant’s mum was home when this happened. This was part of the applicant threatening the complainant that he had to move into the applicant’s family home.
The complainant said that when he was about 16 years old, he ‘got done’ for drink driving. He used to drive the applicant and his mates around all the time. He and the applicant were fighting a lot and he couldn’t handle the applicant being near him. Around this time he called his dad and told him about the drink driving, and that he was fighting with the applicant and wanted to move out. The next day, his father came and picked him up and he moved in with his parents in their house in Lyonville. The complainant said he only saw the applicant once after this, when he and his father went to another place where the applicant was staying to pick up the complainant’s belongings, including his car. He said he did not know how his belongings had got there, but that the applicant must have taken them there. The applicant didn’t stay around while they loaded the trailer.
The complainant said it was difficult for him to remember everything that had happened with the applicant. He had found it difficult to recall specific incidents when he first contacted the police in October 2018. At this time he had been seeing a counsellor for about 12 months. He continued to see the counsellor up until the time he provided his first statement in February 2019. They were doing a lot of work to try and recall incidents that had happened with the applicant. The counselling helped him to provide the police with more specific details. He had difficulty with his memory because these things happened a long time ago, and because he had over-indulged with alcohol and marijuana. He accepted that he had a history of drink driving and excessive use of alcohol. He said he could remember some things from years ago but could not remember other things from a few days ago. He had a bad memory.
When shown a police record during the committal recording that he had said the offending commenced in 1981 and finished when he was around 13 years old in 1985, the complainant said he had his times and dates mixed up at that point and hadn’t done his homework to work out the different ages and times.
The complainant said he had always thought the applicant was about 10 years older than him, but found out through police that he was only about five to six years older. He said the applicant was a much bigger person, with a lot of hair and a beard.
The complainant said he had always suspected that a few people knew that the applicant was abusing him, including Scott Stirling and Peter Burridge, who were friends with the applicant. He gave the police their names, as well as the names of other people who were friends from the time, including: Leonie King, Eric Delphin, Mark Delphin and Darren Delphin. He also identified neighbours who would come around to his family home during the relevant period: Samantha Legg, Stephanie Legg and their mum and aunties.
At the time of making his first statement, the complainant said that he told his friend Rick Farmer around two or three years earlier that he had been molested as a kid by an old friend for some time and that a paedophile had burnt his mum and dad’s house down. At the committal, the complainant said that the first person he had said anything to about what the applicant had done was a counsellor he began seeing in 2018. He said that after he had gone to the police, he told his parents that he had been molested by the applicant and that the applicant had burnt the Lyonville house down. He did not recall the specifics of what he said to his friend or his parents. His parents were dumbfounded. He told them he had not said anything to them before then because he was scared of the applicant, who had threatened to hurt him and them. He did not give them any more detail about the applicant’s threats.

Complainant’s father

The complainant’s father made two statements, the first on 9 June 2021 and the second on 10 August 2022. His evidence is that the house on Krone Street that the family had lived in during the 1980s had been knocked down. There was a shed in the backyard, which was a fair distance to the house. He explained his understanding of how the complainant and the applicant met. He said his wife had told him that the applicant had stepped in and helped the complainant out after some kids were laying into him. The complainant would have been 8 or 9 years old, and the complainant’s father believed that the applicant was about 17 years old. After this the complainant and the applicant became friends. The complainant’s father described the applicant as ‘like an older brother figure’ to the complainant. He said that the applicant used to stop in to their house from time to time.
The complainant’s father said that when the complainant was about 12 years old, he started staying at the applicant’s house on occasion. He said that the applicant never stayed at their house. They would go off camping occasionally with friends.
The complainant’s father said that the complainant and the applicant had a common interest in motorbikes. After the complainant started working part-time after school, the complainant got his own motorbike, which he kept in the shed. The complainant would have been 13 years old at this time. Around Christmas 1984–1985, the complainant damaged his bike and after that he and the applicant worked together to fix it over a few weeks at the house. The complainant used to keep parts for the motorbike in the shed and in his bedroom. The complainant’s father was not sure where at the house the complainant and the applicant had done the works to fix up the motorbike.
The complainant’s father said he did not remember the complainant’s 13^th birthday (the date on which charge 2 is alleged to have occurred), but he did remember taking him to the Caribbean Gardens Market from time to time. He did not remember the complainant going to hospital for anything related to his birthday, or otherwise for drinking too much alcohol.
The complainant’s father recalled an incident at some point when the complainant would have been getting close to 14 years old, when the complainant and his friends were partying at the family home while the complainant’s mother was away in hospital. He said that one of the friends took a swing at him and hit him.
The complainant’s father said that in 1984 or early 1985, he bought a relocator house, which they subsequently relocated to Lyonville. In late November/December 1986, he received a call from Sergeant Burke at the Trentham Police Station, who told him that the house had burnt down. He made an insurance claim. Either Sergeant Burke or the insurance fire investigator told him that the fire started at the meter, where a power surge had come through the system. He no longer had any records relating to the fire and could not remember the name of the insurance company. He said the house was rebuilt in 1987 and they moved there in July 1988. The complainant had got an exemption to leave school when he wasn’t quite 15 years old and had a full time job with ‘Melbourne Power Steering’. The applicant offered for the complainant to live at their place. The complainant wanted to do that.
The complainant’s father said that in mid-late 1989, the complainant decided he would move to the house in Lyonville. He had got in trouble for drink driving and said that that was why he wanted to move to Lyonville. The complainant’s father said he helped the complainant pick up his belongings and his car from the applicant’s family house. He did not see the applicant. The last time he ever saw the applicant was when the complainant moved in to the applicant’s house.
The complainant’s father said that in late 2018 or early 2019, the complainant called him and his wife and said he had to come over and tell them about the applicant. The complainant said that the applicant had sexually abused him over the years. He said that it had been going on for a while before he moved to Lyonville, but did not give any more detail. He said that he couldn’t tell them earlier because the applicant had threatened to get the ‘Mordi Boys’ to come after them. The complainant’s father said that the ‘Mordi Boys’ were standover merchants who were asked to do bashings and kneecappings or to destroy property or burn down houses.

Complainant’s mother

The complainant’s mother made a statement on 22 April 2020. Her evidence is that she was living with her husband and her two sons on Krone Street in Mordialloc in around 1980 to 1981, in a rented house with a long tin garage that ran along the side fence. She said that the applicant came into their lives after he stepped in to help the complainant during a fight on the way home from school. He lived a few streets away. The complainant was in Grade 2 or 3 at the time and the applicant was a lot older. He took the complainant on camping trips about four to six times from when the applicant was about 8 or 9 years old. They would sometimes go away with friends but she never met any of the friends. The applicant came to their house but he never slept over. She was not working and was always at the house, keeping an eye on the children. As far as she could remember, the complainant and the applicant did not spend time together in the bedrooms, but were out the back, playing with motorbikes and doing other things.
The complainant’s mother said that she and her husband bought a relocator house that was transported to Lyonville. Around Christmas, while they were away on holidays, they found out that it had burnt down. Her husband got a call from Trentham Police Station. Fire investigators went through the house and they were told they couldn’t rebuild it. They made a claim on their house insurance but couldn’t claim on the contents insurance at the time. She thought the investigators said the fire was caused either by a power surge or something with the meter box. Her husband dealt with the police, the fire investigators and the insurance claim. Shortly after the house burnt down, they rebuilt a house on the same block of land. When approached by police about the complainant’s allegations, she had given some photos of the burnt house to the police, which were the only records that she had.
The only time the complainant’s mother could recall the complainant staying at the applicant’s house was when she and her husband moved to their rebuilt house in Lyonville. Around this time, the complainant decided that he wanted to stop going to school because he wanted to work. Since he wasn’t old enough to leave, he had to get special permission from the government to allow him to leave, which was granted. He then left school and was working five days a week repairing transmissions and gearboxes of cars. The complainant didn’t want to move to Lyonville because he didn’t want to leave his friends and full-time job, so he ended up living with the applicant and his family. This was the applicant’s idea. She and her husband made the applicant and his family promise that they would take care of the complainant. The complainant lived with the applicant for one to two years. Then the complainant got into a bit of trouble and moved to Lyonville. He didn’t say what the trouble was or who was involved. After he moved to Lyonville, he isolated himself from his friends, which was unusual because he was very outgoing. He had changed a bit in school, but she had put that down to being a typical teenager. The applicant came to visit the complainant at Lyonville once, while she was at work. The complainant asked him to leave and as far as she knew, they didn’t see each other again.
The complainant’s mother said that about 12 months to two years before giving her statement, the complainant came to their house and said that the applicant had molested him for years before they had moved to Lyonville. He gave some details, but she was in shock and didn’t really hear what he said. He said that the applicant had threatened him when he was younger, saying that if he ever told his parents what was happening, he would get his ‘Mordi Boys’ to fix them up and burn down the house. She hadn’t heard of the ‘Mordi Boys’ before but the complainant told her that they were a gang, and were bullies and thugs.

Applicant’s mother

The applicant’s mother made a statement on 4 February 2022, when she was 80 years old. She has not been cross-examined. Her evidence is that she had four children with her husband. One of her sons, Ryan Bennett, was now deceased. In about 1978, they took one of their daughter’s friends in when she had no other place to stay. After this, they started taking in other children in need, and they had about 10 children stay with them over about three years.
In 1964, they moved to a house in Mordialloc that had a bungalow at the rear. She did not recall any of the children who stayed with them using the bungalow. Later on, Ryan and her other son (the applicant’s other brother) may have used the bungalow because they had a paper round and often had to get up early. The applicant’s mother said the complainant’s name rang a bell, but she wasn’t sure how. She didn’t remember anyone with that name.

Leonie King

Leonie King made a statement on 4 February 2022. She has not been cross-examined. Her evidence was that she met the applicant and the complainant around the same time in 1986 to 1987. She met the applicant through other friends and was in love with him. She became friends with the complainant straight away and she thought the complainant had a crush on her. The applicant and the complainant were always together and she thought they were mates. At the time, the complainant was living in the bungalow at the back of the applicant’s parents’ house with the applicant’s brother, Ryan. The bungalow was accessible without needing to go into the house and had two bedrooms. She was not sure why the complainant lived with the applicant. She recalled that the applicant was working as a spray painter or mechanic, but did not remember what the complainant was doing for work.
Ms King said that in April 1989, she was injured in a car accident. While she was in recovery, the applicant and the complainant came to visit her together. She also recalled that the complainant moved to Lyonville with his parents. On one occasion, she went to visit him in Lyonville, and the applicant also showed up. She gave photos from her time with the applicant and the complainant to police.
Ms King said that she didn’t recall the complainant ever telling her anything about a sexual assault against him. She said that she ran into the applicant’s mother a couple of times after she was contacted by the police about the investigation. The applicant’s mother told her that she didn’t remember the complainant or that he had lived in her bungalow.

Ian Lording

Ian Lording made a statement on 16 February 2022. He has not been cross-examined. His evidence was that he bought a panel beater business named I&S Body Works from Dave McKinna on 1 July 1986. He said that the applicant had been there before he took over the business. Mr Lording kept him on and the applicant stayed until he finished his apprenticeship. He did not see the applicant outside of work. When given the complainant’s name, Mr Lording said that he did not remember the name and didn’t know if anyone by that name had ever worked for him. He said that prior to buying the business, he had visited the premises a couple of times and remembered seeing the applicant there with another young guy who swept the floors. Mr Lording didn’t know his name.

The informants

Three former informants — Detective Senior Constable Daniel Vear, Detective Senior Constable Ashlee Tippett and Senior Constable Christopher Child — and the current informant, Detective Senior Constable McNess, each gave evidence on the steps taken in the police investigation of the alleged offending. Detective Senior Constable McNess was cross-examined both at the committal hearing and at the s 198B hearings. The former informants were each cross-examined at the s 198B hearings.
(a)Detective Senior Constable Daniel Vear

Detective Senior Constable Vear was the original informant. He made a statement on 12 July 2023. He said that he received a phone call from the complainant on 26 October 2018, when he was working as a Senior Constable in the Sex Offence and Child Abuse Investigation Team (‘SOCIT’) at Bendigo. The complainant told him that he wanted to report a series of sexual assaults committed against him by the applicant when he was between 9 and 13 years old. The complainant told him that it had happened hundreds of times and that the applicant told him not to tell anyone or he would kill him. The complainant said that the applicant was 10 years older than him and that he had lived with him as a child.
On 13 December 2018, Detective Senior Constable Vear met with the complainant. He recorded in his diary that the complainant was ‘unable to particularise incidents’, was emotional and spoke of his depression. He recorded that the complainant said that ‘it’ happened 50 to a hundred plus times, that they were all the same, and that the abuse took place over about five years, finishing when he was 15 or 16 years old.
On 11 January 2019, the complainant told Detective Senior Constable Vear that he had still been unable to particularise any of the incidents or remember any more details. On 27 February 2019, Detective Senior Constable Vear took the complainant’s first statement. In this statement, the complainant identified two of the applicant’s friends at the time of the alleged offending, who he believed may have known that the applicant was abusing him: ‘Scott’ and ‘Peter Burrage’.
In March 2019, Senior Constable Ashlee Tippett became the informant. By this time, the complainant had also alleged that the applicant burnt down his parents’ second house in Lyonville, when the complainant was 11 or 12 years old.
In July 2019, at Senior Constable Tippett’s request, Detective Senior Constable Vear took a second statement from the complainant.
(b)Detective Senior Constable Ashlee Tippett
Detective Senior Constable Tippett made a statement on 22 July 2023. She was the informant from March 2019 to January 2021, while she was working in the Moorabbin SOCIT. She became a Detective Senior Constable during this period.
Detective Senior Constable Tippett contacted the complainant to introduce herself on 23 March 2019. She spoke to the complainant again on 2 May 2019. On 4 June 2019, Detective Senior Constable Tippett requested that Detective Senior Constable Vear get ‘a few things’ clarified in the complainant’s statement. She received the further statement on 16 July 2019.
In August 2019, Detective Senior Constable Tippett tasked two officers to check the electoral roll and confirm that the applicant’s parents lived in Mordialloc in the early 1980s. On 22 October 2019, the complainant provided his parents’ phone number.
On 14 February 2020, the applicant was arrested and interviewed. He was released without charge. In March 2020, a decision was made to obtain further statements. Detective Senior Constable Tippett recalled that some of these statements were to be taken from the complainant’s parents and from Rick Farmer, to whom the complainant had made a complaint about the offending.
In April 2020, Detective Senior Constable Tippett took statements from the complainant’s mother and father. Any notes she made of her conversations with the complainant’s parents were contained in the statements.
In September 2020, Detective Senior Constable Tippett spoke to Leonie King but did not take a statement from her. Around this time, she also spoke to someone from the Country Fire Authority (‘CFA’), who informed her that she could not locate any report for a fire at the Lyonville property in 1986. Detective Senior Constable Tippett did not make any other enquiries with the CFA about potential records of the fire. She sent an email to the Trentham Police Station enquiring about the fire, and was told that they would try and locate some photos of the house. No photos were ultimately located. She did not take any steps to find out who the insurer of the property was.
In November and December 2020, Detective Senior Constable Tippett attempted to locate Scott Stirling, who the complainant had identified as someone who may have known about or witnessed the alleged offending. She spoke to Mr Stirling by phone in December 2020. Her diary notes of their conversation record, ‘Met at school. We were best friends. Other friends, Peter Burridge. Anyone younger around? No, no that I remember. Allegations of sexual assault, believe you might know anything. No, nothing untoward happened to me’. In another record, she noted that Mr Stirling was no longer friends with the applicant, and didn’t know or remember someone with the complainant’s name. Detective Senior Constable Tippett did not ask Mr Stirling to make a statement. She said she thought she could get one down the track if needed.
Detective Senior Constable Tippett said that before handing the matter over to the next informant, she put together a three page briefing note. The briefing note was tendered. In this note, Detective Senior Constable Tippett recorded that both the complainant’s brother and the applicant’s brother were deceased. The note included the names of various other potential witnesses who had been mentioned by the complainant, and referred to ‘Ian from I&S Bodyworks’. The briefing note also referred to an arson chemist. Detective Senior Constable Tippett said she had spoken to the arson chemist, who had told her that it was possible the fire could have been deemed accidental even if it was deliberately lit, if there was a potential cause for an accidental fire to occur. Detective Senior Constable Tippett said she took no further action in relation to this information and did not obtain a formal statement from the arson chemist.
(c)Senior Constable Christopher Child
Senior Constable Christopher Child made a statement on 7 August 2023. He was the informant from June 2021 until December 2021. Towards the end of this period, he was promoted from Constable to Senior Constable. While police records show that the investigation was handed over to him in March 2021, Senior Constable Child said that he first reviewed the file and made enquiries on 3 June 2021. At that time, he identified all the outstanding potential witnesses, who had each been nominated by the complainant, to follow up: Eric Delphin, Darren Delphin, Stephanie Legg, Samantha Legg and Rick Farmer. He also contacted the complainant’s parents to arrange for their statements to be signed.
In June 2021:
(a)Senior Constable Child spoke to Rick Farmer and made notes of Mr Farmer’s account of the complainant’s complaint to him two years earlier. Senior Constable Child said that he understood that the complainant gave enough information to Mr Farmer for Mr Farmer to believe that there was sexual offending involved. Mr Farmer was ‘happy to give a statement to this effect’, but Senior Constable Child did not obtain a statement. He attributed this to him being junior at the time and naïve to the fact that it was important to obtain statements in all areas.
(b)The complainant’s parents signed their respective statements. Senior Constable Child also received photographs of their house in Lyonville before it burnt down, which had been requested by Detective Senior Constable Tippett. He did not recall taking any further steps to get more information or documentation related to the fire.
(c)The complainant gave Senior Constable Child the name of another potential witness, Ian Saunders. The complainant said that Mr Saunders was friends with and the same age as the applicant at the time of the alleged offending and may have been aware of what was happening to the complainant.
Senior Constable Child contacted Mr Saunders approximately three months later, in September 2021. Mr Saunders said that he remembered the applicant but not the complainant. Senior Constable Child’s notes record that Mr Saunders had gone to Mordialloc Primary School, and later Aspendale Technical School, with the applicant. He would ride his bike around the local area with the applicant and other people, but he couldn’t remember any names, and said that while he was friends with the applicant, they were not great mates. Mr Saunders said that he was not aware of any of the alleged sexual offending. Senior Constable Child could not recall whether he had asked Mr Saunders if the applicant had hung out with the ‘Mordi Boys’. He said that did not ask Mr Saunders to make a statement because he thought Mr Saunders’ evidence would not further the investigation, either ‘to prove or disprove’ or to add anything to his ability to understand the relationship between the applicant and the complainant, or what may or may not have happened. However, he accepted in cross-examination that the evidence of Mr Saunders was relevant to the investigation and that a statement should have been obtained.
Between July and September 2021, Senior Constable Child unsuccessfully attempted to contact Eric and Darren Delphin. In September 2021, he submitted checks to try to obtain the location of the remaining witnesses that he had been unable to contact. The next day, he recorded: ‘[n]il value of existing avenues of inquiry’. He said that this referred to both Mr Saunders and the Delphins.
In October 2021, Senior Constable Child spoke with Ian Lording, the previous owner of I&S Body Works. A record he made at the time indicates that ‘Lording remembers suspect and stated he worked at I&S for approximately one year, possibly two as an apprentice. Lording does not remember subject’s name or him working at I & S’. Senior Constable Child also made a note that some of the offending could have occurred while a previous owner was still in charge, being Dave McKinna. While his records from the time indicate that Mr McKinna could corroborate the complainant’s employment but did not witness the offending, Senior Constable Child could not recall speaking to Mr McKinna.
Senior Constable Child did not make any inquiries with Melbourne Power Steering or Australian Power Steering to confirm the complainant’s employment with the company, but accepted that he should have.
In November 2021, Senior Constable Child contacted Peter Burridge. A record he made at the time indicates that ‘Burridge remembers both subject and suspect and them being best friends … Knew nothing of any assaults between parties’. Senior Constable Child did not ask Mr Burridge to provide a statement, and again attributed this to his lack of experience.
On 16 November 2021, Senior Constable Child submitted the completed brief for the investigation to his supervisor, recommending that a prosecution not be pursued.
(d)Detective Senior Constable Andrew McNess
Detective Senior Constable McNess made a statement on 12 April 2023. He became the informant on or about 24 January 2022 and was responsible for laying charges against the applicant in December 2022. The brief was allocated to him in January 2022. The previous recommendation that the prosecution not be pursued had been rejected in December 2021 and the brief was sent back to (then) Constable Child to make further enquiries. However, Constable Child had moved to a different part of Victoria Police in December 2021 and before the matter was allocated to Detective Senior Constable McNess, it was reallocated to another officer for a brief period, during which it was not progressed.
Detective Senior Constable McNess said that when he took carriage of the investigation, he needed to follow up on numerous witnesses to obtain statements from them and follow up on the reports relating to the fire at Lyonville. He contacted Leonie King and took a statement from her. He went to the applicant’s childhood home and spoke to the applicant’s mother and father. Neither was able to recall the complainant. He took a statement from the applicant’s mother. On 16 February 2022, he met with and obtained a statement from Ian Lording about the applicant’s employment with him.
In February 2022, Detective Senior Constable McNess also contacted Peter Burridge, Rick Farmer and Scott Stirling. He also emailed these three witnesses ‘to confirm statements’. Mr Burridge told him that he didn’t want to continue. Mr Farmer similarly declined to make a statement in April 2022. There was no engagement from Mr Stirling after Detective Senior Constable McNess first spoke to him in February 2022. He was unable to locate the Delphins, Samantha Legg, or Dave McKinna.
Detective Senior Constable McNess spoke to the complainant’s father in May 2022, who clarified the complainant’s age when he left school. Detective Senior Constable McNess didn’t take any further notes of his conversation with the complainant’s father. His notes from that day also record that he was unable to locate any record of fire at the Lyonville address on police applications.
Detective Senior Constable McNess followed up with the CFA for records relating to the fire in Lyonville. After an initial delay due to CFA resourcing limitations, he received a copy of a fire report that had been prepared by the CFA (‘CFA Report’).
We pause to observe that the CFA Report is four pages long and in a standard format that lists a series of questions and answers that can be selected by ticking various boxes. The contents are difficult to read but appear to indicate that a number of CFA volunteers attended the fire, which was ‘too advanced’. Next to ‘supposed cause of fire’, the document records: ‘Unknown. Police investigating’. The document records that both the structure and the contents of the structure were insured by AMP Services for $50,000.
Detective Senior Constable McNess said that while the report corroborated the existence of a fire, it did not assist with its cause. He did not make any enquiries with Trentham Police Station or Daylesford Police Station to determine whether there were any police records relating to the fire, or whether there was a Sergeant Burke (as referred to in the complainant’s father’s evidence) around at the time.
In October 2022, Detective Senior Constable McNess sent an email to AMP Insurance seeking records from 1986 in relation to ‘a house fire where it was deemed accidental or undetermined and paid out by AMP’. In the email, he stated that ‘it appears this event was an intentional arson’. In cross-examination, he accepted that there was in fact nothing in the CFA Report that suggested that the fire was an intentional arson. He did not receive a response to the email, follow up the email or make any further enquiries with anyone else at AMP. In a record he created on 1 November 2022, Detective Senior Constable McNess wrote that the CFA Report ‘[c]orroborates the account of the complainant surrounding the fire’. He said that this would have only related to the timing of the complainant’s account of the house being burnt down.
Detective Senior Constable McNess made enquiries with the complainant’s high school and received records relating to the complainant. The records indicate that the complainant received permission to leave school to work at ‘Australian Power Steering’ in February 1987 when he was 14 years old.
Detective Senior Constable McNess submitted the brief of evidence recommending prosecution. That recommendation was accepted and on 23 December 2022, Detective Senior Constable McNess served the charges and brief of evidence on the applicant.
After the applicant was charged, Detective Senior Constable McNess again contacted Mr Farmer and Mr Burridge, who each confirmed that they would not make a statement. Mr Stirling did not respond to any calls or messages. Detective Senior Constable McNess did not make notes of his conversations with Mr Farmer and Mr Burridge.
Detective Senior Constable McNess also contacted the complainant’s father in relation to the shed at Krone Street. The complainant’s father had no photos of the shed or any plans of the property. They only spoke about the shed. Prior to this, neither he nor any of the previous informants had tried to obtain the original plans or photos of the complainant’s family home on Krone Street or the applicant’s house on Eric Avenue.
In January 2024, Detective Senior Constable McNess swore an affidavit in support of an ex parte application to restrain the applicant’s property. In the affidavit, he deposed that the complainant had informed him that he would make an application for a compensation order if the applicant was convicted. Detective Senior Constable McNess recalled that the complainant had said that he wanted compensation more than once. He said that he could look through his notes for a record of those conversations.
Detective Senior Constable McNess also gave evidence that he was told by a solicitor from the OPP that there was a conference between the OPP, their counsel and the complainant on 30 July 2024, during which the complainant said that there were other locations where the uncharged acts had occurred and that he had written lots of the other places in a book as a child. At the request of the OPP, he spoke to the complainant about this in a quick phone call. He did not make any notes of that phone call, or of a subsequent phone call he had with the OPP solicitor. The OPP solicitor sent an email to the defence team on 31 July 2024, which included the following statements:
1.The complainant was conference on 30 July 2024. In relation to uncharged acts he indicated there were other locations, and he wrote lots of other places in his book as a kid.
2.The informant contacted the complainant to ask about the health of the complainant’s father and ask about the book. The complainant indicated that he did not mention a book, and would have provided it to Police if it existed. He stated there must have been a mix up in communication.
Detective Senior Constable McNess gave evidence about a further conversation he had with the complainant on 8 August 2024. His diary notes record that the complainant said, ‘I’ve got blurred memories of my brother being in the room when I was with the paedophile’ and ‘I think [the applicant] might have had a go at my brother as well’. The notes also record that the complainant suggested that his brother be interviewed and that ‘nil questions about what was said by [the complainant] about his brother were asked by me’ and that he notified the OPP of the call. Detective Senior Constable McNess requested that a statement be obtained from the complainant about this, but was told that ‘the complainant had other priorities ahead of giving statement and it was unable to be obtained’. Detective Senior Constable McNess did not have any further conversations with the complainant about providing another statement.
Finally, Detective Senior Constable McNess said that in July 2024, he became aware that the complainant’s father had recently had two strokes and a heart attack, and would be unfit to give evidence at trial. Detective Senior Constable McNess also became aware that the applicant’s mother would not be in a position to give evidence ‘any time soon’ due to her health. He said that the applicant’s brother, Ryan Bennett, was deceased.

The stay application

The applicant submitted that the upcoming trial would be irreparably unfair because of the combination of the following matters that were said to flow from the ‘extraordinary’ delay of between 36 and 42 years between the alleged offending and the trial:
(a)the lack of specificity as to the dates and detail of the alleged offending (as well as the uncharged acts), which meant that the allegations were incapable of proper response;
(b)the fragility of the complainant’s memory, owing to his young age at the time of the alleged offending, the passage of time, and his admitted inability to recall matters due to the time that had elapsed, his alcoholism and his drug use;
(c)the loss of documentary evidence, such as records of employment of either the applicant or complainant at I&S Body Works and elsewhere; and in relation to the fire at the Lyonville property;
(d)the unavailability of relevant witnesses, including the applicant’s brother and the complainant’s brother, who are both deceased; the complainant’s father, for whose evidence the prosecution had served a hearsay notice;[7] and the applicant’s mother, who the prosecution had indicated may be unavailable, but for whom no hearsay notice had been served;
(e)uncertainty as to the admissibility of the statement made by the complainant during his conference with counsel on 30 July 2024, which was said to be a prior inconsistent statement; and
(f)the considerable forensic difficulty that the applicant would face in electing whether to cross-examine the complainant as to the circumstances of the arson charge (which the prosecution had conceded should be stayed) to impugn the complainant’s credibility, in the knowledge that the complainant had attributed the destruction of the property to the applicant’s acts when other evidence pointed towards another cause.
[7]We were not provided with a copy of this notice but we understand it to be a notice under s 65 of the Evidence Act 2008, indicating the prosecution’s intention to rely on the statements made by the complainant’s father as an exception to the hearsay rule, on the basis that he is not available to give evidence.

The applicant also emphasised that the delay was not occasioned by any fault on his part. Further, the forensic disadvantage caused by the complainant’s delay in reporting the alleged offending had been compounded by a delayed and inadequate police investigation. In particular, the applicant was critical of:
(a)the lack of any notes or any detailed notes of conversations between police and relevant witnesses, including Peter Burridge, Rick Farmer, Ian Saunders and David McKinna;
(b)the failure by police to speak to other relevant witnesses, including Scott Stirling, the Leggs and the Delphins;
(c)the failure by police to obtain written statements from relevant witnesses who were spoken to, including Peter Burridge, Rick Farmer, Ian Saunders, and the applicant’s father;
(d)the failure by police to require that recalcitrant witnesses attend court for compulsory examination under Part 4.3 of the Criminal Procedure Act 2009;
(e)the failure by police to make any enquiries as to records pertaining to the complainant’s employment at Australian Power Steering and the complainant’s and the applicant’s employment at I&S Body Works;
(f)the failure by police to make any enquiries with the relevant authorities as to the foster children who lived with the applicant’s family at the time of the alleged offending, or with hospitals in respect of the circumstances said to surround charge 2; and
(g)the lack of any photographs of the properties on Krone Street or Eric Avenue.
The applicant submitted that the combination of the above circumstances meant that this was a case in which it would be impossible for him to offer anything more than a bare denial. The forensic disadvantage he would suffer would be so significant that it would cause unacceptable injustice and unfairness that could not be remedied by evidentiary rulings or jury directions.
As to the public interest in prosecuting the charges, the applicant submitted that it was significant that he was a child at the time of some of the alleged offending; that he had no prior convictions; and that the charges would have been dealt with summarily if they had been brought closer to when the alleged offending had occurred.
As we have indicated, the prosecution conceded that the trial on the arson charge ought to be permanently stayed. After Detective Senior Constable McNess gave evidence that he may have overstated in his reports any corroboration between the CFA Report and the complainant’s account, counsel for the prosecution accepted that the available objective evidence did not support the complainant’s assertion that the fire was deliberately lit. Counsel submitted that ‘if anything, it was likely to support an alternate hypothesis being that it was an electrical fault at the switchboard and, therefore, an accidental fire’. In light of this position, together with the passage of time and the relatively lower level of seriousness of the alleged arson compared to the other alleged offending, counsel accepted that this was an exceptional case where a stay of the arson charge ought be granted. In written submissions, the prosecution made clear that:
Out of fairness to the accused, if charge 5 is stayed, but the other charges proceed, defence ought to be permitted to introduce (through cross examination of the complainant and the Informant), evidence relating to the arson allegation being raised, investigated and ultimately not being supported by evidence regarding causation. This would obviously be with a view to challenging the complainant’s credit in general.
As to the remaining charges, the prosecution submitted that there was no feature of the anticipated trial, either considered in isolation or in combination with other features, which demonstrated that it would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. The potential evidence of the unavailable witnesses only related to peripheral matters and would not reasonably contradict any facts in issue. The limitations of the available evidence was not a feature that was uncommon in trials based on historic alleged offending, and there was considerable public interest in prosecuting the alleged sexual offending. Any forensic disadvantage in the applicant’s trial could be cured by evidentiary rulings and jury directions.

The interlocutory ruling

The judge gave detailed reasons, in which she identified and applied the relevant legal principles in relation to an application for a permanent stay, as stated in a number of cases,[8] including in relation to the particular issues of delay[9] and of ‘lost’ evidence caused by delay.[10]
[8]Reasons, [78]–[82], referring to Jago v District Court (NSW) (1989) 168 CLR 23; [1989] HCA 46 (‘Jago’), R v FJL (2014) 41 VR 572; [2014] VSCA 57 (‘FJL’), GLJ (2023) 97 ALJR 857; [2023] HCA 32.
[9]Reasons, [83]–[89], referring to Hermanus (a pseudonym) v The Queen (2015) 44 VR 335; [2015] VSCA 2 (‘Hermanus’), R v Jacobi (2012) 114 SASR 227; [2012] SASCFC 115 (‘Jacobi’), Haris (a pseudonym) v The King [2023] VSCA 205.
[10]Reasons, [90]–[106], referring to FJL (2014) 41 VR 572; [2014] VSCA 57, Green (a pseudonym) v The Queen [2017] VSCA 277 (‘Green’), Carson (a pseudonym) v DPP [2019] VSCA 4, Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529; [2021] VSCA 12 (‘Lucciano’).
The judge characterised the allegations the subject of charges 1, 2, 4 and 6 as allegations of a ‘very serious’ nature. While the offence the subject of charge 3 (indecent assault) was accepted to be less serious than the other alleged offences, it was still serious.[11]
[11]Reasons, [77].
The judge acknowledged that there had been a very considerable delay in this case and that the applicant would encounter prejudice in the trial as a result. However, she regarded the extent of the prejudice as being different in respect of the arson charge than in respect of the remaining charges.[12]
[12]Reasons, [108].
In relation to the arson charge, the judge found that the circumstances in which the fire had occurred were now ‘truly incapable’ of proper evaluation by a jury, in circumstances where there was ‘clear’ circumstantial evidence supporting a conclusion that the fire had been lit in circumstances that were inconsistent with the complainant’s account. This evidence included the account of the complainant’s father (who was no longer available due to his ill health); the account of the complainant’s mother, which alluded to an insurance payout for the home but not the contents; and the CFA Report. Further, the insurer had not been responsive to the request by police for assistance, and there were no available witnesses from any police investigation into the fire (eg Sergeant Burke), the CFA or the insurer.[13]
[13]Reasons, [109]–[110].
The judge found that if the trial proceeded on the arson charge, the applicant would effectively be left with the statement of the complainant’s father, in which he said he was advised that the fire had started at the meter, tendered through a hearsay notice; a barely legible CFA Report; and the second or third-hand evidence of the complainant’s mother about an insurance payout. The judge observed that the contents of the CFA Report, which is the closest to a contemporaneous report that is available, are not suggestive of a fire that was deliberately lit. The CFA Report contains no record of an odour of accelerant or of any jerry can being found at the property. The value of the evidence lost as a result of the delay was ‘so compelling’ that the actual prejudice to the applicant could not be remedied by jury directions. The judge held that a trial on the arson charge would be unacceptably unfair and that the prosecution had rightly conceded that it must therefore be permanently stayed.[14]
[14]Reasons, [109]–[111].
In respect of the remaining charges, the judge accepted that the applicant would encounter forensic disadvantage in his trial as a result of the significant delay. Her Honour acknowledged that it would be difficult for the applicant to offer a response other than a bare denial for the charges.[15] She accepted that the police investigation had proceeded slowly, and that there were no notes of some conversations between the police and the complainant and between the police and other potential witnesses, ‘which may have generated other [evidence of] inconsistent statements’.[16] In circumstances where each sexual offence was alleged to have occurred without other people present, the judge accepted that the complainant’s and the applicant’s parents would be able to offer contextual evidence, and that they had done so in their respective statements.[17]
[15]Reasons, [112].
[16]Reasons, [114] (emphasis in original).
[17]Reasons, [113].
However, the judge did not accept the applicant’s submissions as to the potential forensic value of the evidence of Peter Burridge, Rick Farmer, Ian Saunders or Dave McKinna, each of whom had not provided statements to the police.
In respect of Mr Farmer, her Honour expressed uncertainty as to the admissibility of the alleged conversation between the complainant and Mr Farmer, in which the complainant was said to have confided in Mr Farmer about the alleged offending. She observed that the conversation was alleged to have occurred over 27 years after the alleged offending period and may not be admissible pursuant to s 66 of the Evidence Act 2008.[18]
[18]Reasons, [115].
As for the potential forensic value of the evidence of friends of the complainant and the applicant, namely Mr Burridge and Mr Saunders, the judge noted that in their informal interviews by police, they had indicated that they were unaware of any assaults occurring.[19] While the applicant had expressed concern about the lack of exploration of the ‘Mordi Boys’ by the police, a matter that was connected to the lack of a more contemporaneous complaint, the judge held that such evidence would not be of any real significance in her evaluation of the potential forensic disadvantage to the applicant.[20]
[19]Reasons, [116].
[20]Reasons, [115], [117].
In respect of Mr McKinna, the previous owner of I&S Body Works, the judge said that it was speculative to criticise the absence of Mr McKinna and the lack of employment records relating to the complainant’s work at I&S Body Works (and his subsequent employment).[21]
[21]Reasons, [118].
Further, the judge did not accept the potential relevance of the evidence of the large number of foster children (approximately 10), who had lived with the applicant’s family over the years. As for the applicant’s criticism of the police’s failure to use the compulsory examination process available under Part 4.3 of the Criminal Procedure Act 2009 in respect of recalcitrant witnesses, the judge said that she was uncertain why such an intrusive process ought to be used on witnesses whose evidence was at best marginal to the alleged offending. In terms of the absence of photographs and other material, while the jury would be unable to picture the scenes that would be described by the complainant at trial, her Honour considered that their absence was not significant to her evaluation of the circumstances from the applicant’s position.[22]
[22]Reasons, [119]–[121].
In addressing the complainant’s memory issues, the judge said that the complainant’s credibility and reliability would be the subject of valid critique in the trial. The defence could cross-examine the complainant, in the absence of the jury, about Senior Detective Constable McNess’s evidence concerning the complainant’s comments regarding his brother. This was another matter that could be used to critique the complainant’s credibility and reliability. Suitably tailored directions could be given to the jury that would assist in its evaluation of the complainant’s evidence, given each of the matters that the complainant could validly be asked about in cross-examination pursuant to the credibility rules.[23]
[23]Reasons, [122].
As to the ‘forensic difficulty’ for the defence that was said to be created by any stay of the arson charge, the judge accepted that the stay on the arson charge would create a ‘forensic conundrum’ for the defence as to whether to introduce evidence in relation to the fire in the complainant’s cross-examination. However, her Honour said that would ultimately be a forensic decision for the applicant at trial.[24]
[24]Reasons, [123], quoting Ballard [2024] VSCA 26, [52] (Priest JA).
The judge concluded her reasons by stating that she considered that each of the disadvantages incurred by the applicant as a result of the delay could be cured by a detailed forensic disadvantage warning. The applicant could make a forensic argument pointing to the proximity of other people to the locations of the alleged offending, which reduced the opportunity to offend without detection. Suitable forensic disadvantage warnings could also be directed to the paucity of evidence of surrounding circumstances relating to the alleged offending. In the circumstances, the judge was not persuaded that the applicant’s trial on charges 1, 2, 3, 4 and 6 would be unacceptably unfair and unjust, so as to constitute an abuse of process, and refused to grant a stay on those charges.[25]
[25]Reasons, [124].

Applicant’s submissions in this Court

The applicant seeks to appeal the judge’s interlocutory ruling, contending that the judge erred in refusing to permanently stay the remaining charges in light of the matters identified in paragraph 4 above.
The applicant accepted that a permanent stay could only be ordered in exceptional circumstances. He submitted that the lack of detail about the timing and circumstances of the alleged offending meant that this would be a trial that would hinge on the complainant’s credit. In those circumstances, the following seven matters, when viewed in combination, demonstrate that there are exceptional circumstances warranting a stay of the remaining charges:
(1)There is presumptive prejudice because of the extreme delay between the alleged offending and any trial. The delay is currently between 36 years and 42 years, and is even longer in respect of the initial uncharged acts. The presumptive forensic difficulties caused by the delay in the complainant’s report to police have been compounded by the delayed and inadequate investigation undertaken by police.
(2)The stay of the arson charge, together with the unavailability of the complainant’s father, has created an intractable forensic difficulty for the applicant. The applicant is in the intractable forensic position of having to decide whether to challenge the complainant’s credit by reference to his allegations about the arson, in circumstances where there is an unchallenged finding by the trial judge that the value of the lost evidence about the fire was ‘compelling’.
(3)Other documentary evidence is now unavailable, namely documents relating to: the complainant’s employment at Australian Power Steering; the complainant’s and the applicant’s employment at I&S Body Works; and whether the complainant was hospitalised the day after the offending that is alleged to have occurred on his 13^th birthday (charge 2).
(4)Two relevant witnesses are deceased, namely, the applicant’s brother and the complainant’s brother, the latter of whom the complainant had told the informant may have been present during some of the offending. There is no statement from either witness. The trial judge did not deal with the absence of the applicant’s brother and did not grasp the significance of the complainant’s brother’s absence.
(5)The complainant’s father (whose evidence is the subject of the hearsay notice) is unavailable to give relevant and important evidence. The complainant’s father was to provide the following evidence, which would be exculpatory in the sense that it is inconsistent with the complainant’s account and significantly undermines his credibility:
(a)he was told, ‘either by police or the investigator that [the fire] might have started in the meter box’;
(b)the applicant never stayed at his house on Krone Street;
(c)he was never assaulted by the ‘Mordi Boys’; and
(d)the complainant was never hospitalised for alcohol poisoning and the complainant’s father did not take him to the Caribbean Gardens Market after his 13^th birthday.
While some of this evidence will be admissible, the more remote hearsay evidence about what the complainant’s father was told about the cause of the fire may not be admissible. The prosecution’s position on the admissibility of the more remote hearsay evidence is presently unclear. In any event, the evidence was vague in nature.
(6)The applicant’s mother is also unavailable to give relevant evidence. Although she has made a statement, that statement is brief and does not deal with important matters of context that are relevant to the opportunity to offend. These concern the layout of the applicant’s family home and the bungalow, as well as who else was living at the house at the relevant time, in circumstances where the applicant’s mother refers in her statement to a number of children that she was fostering at the relevant time. The applicant’s mother could also have given evidence about the complainant’s claim that her family was a ‘tough’ family, which could have been used to undermine the complainant’s credit. She was described by the applicant as an important witness. She was not cross-examined about these matters at committal.
(7)Although the prosecution has disclosed the substance of the statement made by the complainant in a conference with counsel on 30 July 2024 that he had written other places where he was abused in a book as a child, the prosecution has refused to provide the defence with the notes of the OPP solicitor from that conference, on the basis of witness privilege. The applicant accepted that the substance of the complainant’s statement had been disclosed but said that the failure to disclose the note is significant in a case where the complainant’s credibility and reliability are fundamental. This was described as a ‘smaller point in the scheme of things’.
In respect of the delay and the police investigation, the applicant emphasised the length of the delay, which was said to be at the extreme end for what is seen in these types of cases. The applicant submitted that when the complainant made his report to police in 2018, the applicant was already facing serious forensic disadvantage. That disadvantage has been compounded by an inadequate police investigation involving five different informants over four years. There were significant periods of time over this four year period where no steps were taken in the investigation.
The applicant pointed to a number of witnesses who investigators spoke to but from whom they did not obtain (and should have obtained) a statement. They included the following three people who the complainant nominated as potential witnesses:
(a)Scott Stirling — In his first statement, made in February 2019, the complainant said that ‘Scott’, who was a friend of the applicant, may have known the applicant was abusing him. In December 2020, Detective Senior Constable Tippett spoke with Mr Stirling, who said he had met the applicant at school and they were best friends. He did not remember the complainant or anyone younger being around. When asked about allegations of sexual assault, he said, ‘No, nothing untoward happened to me’. No statement was taken from Mr Stirling and Detective Senior Constable McNess was unsuccessful in following him up in 2022 and 2024.
(b)Peter Burridge — In his first statement, the complainant said that ‘Peter Burrage’ was another friend of the applicant who may have known the applicant was abusing him. Senior Constable Child spoke to Mr Burridge in November 2021. Mr Burridge said he remembered the applicant and the complainant and that they were best friends. He said he knew nothing of any assaults between them. Senior Constable Child did not take a statement from Mr Burridge. When Detective Senior Constable McNess followed him up in 2022, he was ready to make a statement, but then became unwell. In 2024, he declined to make a statement.
(c)Ian Saunders — In July 2021, the complainant told Senior Constable Child that Mr Saunders was a friend of the applicant. Senior Constable Child spoke to Mr Saunders in September 2021. Mr Saunders said that he had gone to school with the applicant and was friends, but not great mates with him. He said that he did not remember the complainant. Senior Constable Child did not take a statement from Mr Saunders. When he was contacted again in 2024 by Detective Senior Constable McNess, he declined to make a statement.

To the extent that the applicant has experienced forensic disadvantage as a result of the delay in connection with charges 3 and 4, we are not satisfied that the nature or extent of the disadvantage is incapable of being addressed by measures short of a permanent stay, such as a forensic disadvantage direction.

Effect of delay on charge 6 (and remaining uncharged acts)

Charge 6 concerns the alleged penetration of the complainant in the bungalow at the back of the applicant’s family house when the complainant was 15 years old. The prosecution also relies on a series of uncharged acts said to have occurred around this time. The complainant has provided little in the way of contextual detail.
In relation to the remaining uncharged acts, the complainant described these acts in his evidence in terms consistent with paragraphs 17 and 19 above. His evidence is that the applicant had sex with him at least 10 times while he was living in the bungalow. It happened the same way every time: they were always standing up in the same spot in the bathroom in the bungalow. The sex was the same as in the shed at his family home. The applicant would ejaculate inside him most times, and the incidents would always end when that had occurred, after which the applicant would tell the complainant to pull his pants up and not say anything. The complainant drew a sketch of the layout of the bungalow and marked where the sex had occurred.
In relation to charge 6, the complainant described the alleged offending in terms consistent with paragraph 18 above. He said that this was the only time he remembered the sex in the bungalow happening differently. He was about 15 and a half years old, which he said meant the applicant would have been around 25 years old. The applicant had previously told him that he was going to stop doing ‘it’ soon. He and the applicant were watching a woman next door have sex in her bungalow through the window and the applicant must have got aroused. Although there may have been a time or two after this where the sex happened again, this was the last occasion the complainant remembered in detail.
There is evidence from the complainant’s parents that corroborates the complainant’s account that he lived with the applicant’s family after they moved to Lyonville. The evidence from the applicant’s mother, should it be relied on pursuant to a hearsay notice, is that there was a bungalow at the rear of their family home, and that the applicant’s brother, Ryan, may have used the bungalow because he had a paper round and often had to get up early. She said that the complainant’s name rang a bell but also said she didn’t remember anyone by that name. She remembered there being about 10 children who stayed with them over the years but did not remember any of them using the bungalow.
There is also evidence from Leonie King that the complainant was living in the bungalow at the back of the applicant’s parents’ house when she met him some time in 1986 to 1987. Ms King recalled that Ryan lived in the bungalow with the complainant, that the bungalow had two bedrooms, and that the bungalow was accessible without having to enter the house.
There is no evidence from the applicant’s brother, Ryan.
The applicant submitted that his brother and his mother are important unavailable witnesses. He submitted that given the layout of the bungalow, Ryan could have given evidence directly relevant to the applicant’s opportunity to offend. He sought to emphasise the importance of this lost evidence by drawing an analogy with certain deceased witnesses whose evidence was regarded as significant in the cases of FJL and Morton.
In FJL, the trial judge stayed 12 counts of indecent assault that the accused was alleged to have committed against his young stepdaughters during a period between 36 to 38 years before the trial. This Court upheld the trial judge’s decision to permanently stay one of those charges, but held that the forensic disadvantage attending the remaining 11 charges was not such as to be incurable.[67]
[67]FJL (2014) 41 VR 572, 573 [5]–[6] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [92]); [2014] VSCA 57.
The event that was the subject of the stayed charge was alleged to have occurred while the accused, his stepdaughters and their mother and brothers were living with the accused’s parents. The accused was staying with his partner and stepsons in a bungalow in the back garden that was separate to his parent’s house. His stepdaughters shared a bed in a room in the house, opposite his parents’ room. The accused was alleged to have assaulted one of his stepdaughters while she was alone in the bed in the room opposite his parents’ room, while others were present in the house. By the time of the trial, the accused’s parents were deceased. There was no evidence of the exact address of the house, or its layout, nor the specific time of the alleged offending. There was no evidence of any attempt to locate the property and make observations of it.[68]
[68]FJL (2014) 41 VR 572, 579 [36]–[37] (Osborn JA); [2014] VSCA 57.
This Court held that the death of the accused’s parents gave rise to incurable prejudice with respect to this charge because the offending was said to have occurred when the stepdaughter was sleeping in a bedroom that was in close physical proximity to the bedroom occupied by the accused’s parents. In these circumstances, the loss of the potential to call evidence from the accused’s parents was a probable forensic disadvantage that was incurable.[69]
[69]FJL (2014) 41 VR 572, 579–80 [37]–[38] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [92]); [2014] VSCA 57.
The circumstances of the stayed charge in FJL can be distinguished. Here, unlike the parents of the accused in FJL, there is no allegation that Ryan was present in the bungalow during any of the offending. Further, the exact address of the applicant’s house is known and there appears to be no dispute about the complainant’s account of the layout of the bungalow, which was the foundation for the applicant’s submissions about the significance of the evidence his brother could have given. Ms King has also given evidence about the layout of the bungalow, and that Ryan had also lived there, and is available to be cross-examined on those topics.
In Morton, a majority of this Court overturned the decision of the trial judge to refuse a permanent stay of nine counts of sexual offending allegedly committed by an accused against his four nieces while they were children. As we have said above, the stay application in Morton was brought on account of the ‘extreme’ delay of between 53 to 56 years between the commission of the alleged offending and the trial.[70] In the intervening period, a large number of witnesses had passed away and relevant documentary evidence was no longer available. The only known exculpatory witness could no longer remember, or was confused about, many circumstances, giving rise to a risk that her evidence would be too unreliable to be accepted.[71] Beach and Kyrou JJA held that the cumulative effect of the presumptive and specific prejudice arising from the delay made it a ‘rare and exceptional case’ where the trial of the accused would be so gravely unfair that any conviction would bring the administration of justice into disrepute.[72]
[70]Morton [2020] VSCA 49, [132] (Beach and Kyrou JJA).
[71]Morton [2020] VSCA 49, [155]–[158] (Beach and Kyrou JJA).
[72]Morton [2020] VSCA 49, [131], [162] (Beach and Kyrou JJA).
One of the many sources of prejudice in Morton was the death of a large number of witnesses. While Beach and Kyrou JJA accepted that there was an element of speculation involved when discussing the potential evidence of deceased witnesses, they found that some of the deceased witnesses would have been in a position to give highly probative evidence capable of supporting the accused.[73] The critical witnesses for the purpose of the applicant’s submissions in this case were Geoff and Victoria, the parents of the accused in Morton. Geoff and Victoria lived with the accused and three of the complainants in the house where the majority of the offending was alleged to have occurred. Geoff and Victoria were responsible for looking after the complainants while their mother was at work. Beach and Kyrou JJA described Geoff and Victoria as ‘crucial’ witnesses who were ‘well placed’ to give evidence on important matters such as the layout of the house, whether the applicant was ever alone with the complainants, his interaction with them and the dynamics of the household generally. While it was not alleged that either Geoff or Victoria was in close physical proximity when any of the alleged instances of sexual abuse occurred, their presence in the house for the entire period of the alleged offending meant that they could have given important contextual evidence that had the potential to assist the accused.[74]
[73]Morton [2020] VSCA 49, [140], [154] (Beach and Kyrou JJA).
[74]Morton [2020] VSCA 49, [148]–[149] (Beach and Kyrou JJA).
We consider that the lost evidence of Geoff and Victoria is of a different nature to the lost evidence of the applicant’s brother. The nature of the relationship between Geoff and Victoria and the complainants in Morton is very different to the relationship between Ryan and the complainant. Unlike Geoff and Victoria, Ryan held no position of responsibility in relation to the complainant. Unlike the complainants in Morton, the complainant was not a young child in his care. These matters make it less likely that Ryan would have been in a position to give relevant evidence about the interactions between the complainant and those who visited the bungalow, including the applicant. There is no suggestion that Ryan shared a ‘household’ with the complainant, about which he could give evidence of its ‘dynamics’. Further, as we have already indicated, there appears to be no dispute about the accuracy of the complainant’s account of the layout of the bungalow, about which Ms King has also given an account.
For these reasons, while Ryan may have been able to give contextual evidence, we regard the applicant’s submissions about the significance of the lost evidence from his brother to be overstated. We are not persuaded that any prejudice experienced by the applicant as a result of the absence of Ryan’s evidence is incapable of being addressed by a forensic disadvantage direction. For similar reasons, we regard the importance of the evidence that the applicant’s mother may have given to be overstated and capable of being addressed by a forensic disadvantage direction.
To the extent that the applicant relied on prejudice caused by the absence of evidence from Mr McKinna or of records from the complainant’s employers that would have assisted him to narrow the dates on which there was any opportunity for the offending to occur and to potentially impugn the complainant’s account, we have dealt with these matters in connection with charges 3 and 4 above.

Other matters relied on by the applicant

There are three further matters upon which the applicant relies.
The first is the prosecution’s refusal to disclose notes taken by an OPP solicitor during a conference with the complainant in July 2024. The applicant has been notified that during this conference, the complainant said that he had written other places where he was abused in a book as a child. However, the refusal to provide the notes is said to be significant in a case where the complainant’s credibility and reliability are fundamental.
We are not persuaded that the prosecution’s refusal to disclose the solicitor’s notes has caused any prejudice to the applicant. He has the email from the solicitor disclosing the substance of what the complainant said during the conference and can use it to impugn the complainant’s credibility if he wishes to do so.
The second is the proposition that the number of directions that would need to be given to cure the prejudice experienced by the applicant is large, and that there is therefore a risk that the directions would lose their force and overwhelm the jury. We are not persuaded by this submission. It may well be possible to craft a single forensic disadvantage direction that identifies each of the specific instances of disadvantage experienced by the applicant as a result of the delay — such as the inability to obtain hospital records, the inability to obtain employment records and the inability to call evidence from the deceased witnesses. Our system of trial by jury relies on the assumption that a jury will understand and follow the directions it is given by the trial judge.[75] We do not regard the disadvantages to the applicant that have arisen from the delay in this case to be so numerous or so complex that a jury would be incapable of understanding them or of acting upon a direction requiring those disadvantages to be taken into account.[76]
[75]Gilbert v The Queen (2000) 201 CLR 414, 420 [13] (Gleeson CJ and Gummow J); [2000] HCA 15.
[76]Cf Green [2017] VSCA 277, [105] (Priest, Kaye and Coughlan JJA).
Finally, the applicant relied on matters that were said to affect the public interest in continuing this prosecution. As he was a child himself during much of the alleged offending, if the matter had proceeded more expeditiously, it was likely that the charges against him would have been dealt with summarily. This would have affected any penalty imposed in the event of a finding of guilt.
We accept that these matters are relevant to the public interest in the continuation of the charges against the applicant. On the complainant’s account, the applicant could have been as young as 14 years old at the time the offending commenced and as old as 20 years old when it ended. However, we must also take into account the seriousness of the alleged offending, which involves multiple instances of alleged sexual penetration of a child. As this Court has recognised, the public interest in bringing sexual offences against children to trial is especially strong, irrespective of any delay between the events the subject of the trial and the trial itself. Children are often so traumatised by sexual offending that they do not report it until well into their adulthood.[77]
[77]Morton [2020] VSCA 49, [161] (Beach and Kyrou JJA).

Conclusion

We consider that none of the matters raised by the applicant, considered together or in isolation, takes this case into the exceptional category of cases that warrant a permanent stay. We accept that there has been extreme delay, which, together with the deficiencies in the police investigation, has caused the applicant prejudice. Certain documentary evidence has been lost and some witnesses are now unavailable to give evidence, including the complainant’s father. To the extent that the evidence previously provided by the complainant’s father is exculpatory, in that it is inconsistent with aspects of the complainant’s account of the alleged sexual acts, the prosecution has indicated its intention to rely on the evidence pursuant to the hearsay notice. The evidence has not been lost. Any evidence that has been lost is contextual and speculative in nature. Any disadvantage flowing from the loss of such evidence is capable of being the subject of a forensic disadvantage direction at trial. Other measures are also available to the trial

judge to address any prejudice flowing from the loss of such evidence, including the potential exclusion of evidence and the admission of hearsay evidence upon which the applicant wishes to rely. The alleged offending is inherently serious. We are not persuaded that this is a case where the prejudice suffered by the applicant as a result of the delay and the deficiencies in the police investigation has rendered the applicant’s trial unacceptably unfair — or the further prosecution of the case an abuse of process.

KAYE JA:

I have had the opportunity to read in draft the reasons of Boyce and Orr JJA. I gratefully adopt their Honours’ summary of the background, the evidence and counsels’ submissions. For the reasons that follow, I have concluded, however, that the effect of the extensive delay in this case has been such that a trial of the charges against the applicant would be so seriously unfair and unjust as to constitute an abuse of process. Accordingly, the application for leave to appeal should be granted and the appeal allowed.

The legal principles

The principles, concerning the grant of a stay in a criminal proceeding, have been considered in a number of decisions in the High Court, including Barton v The Queen,[78] Jago v District Court of New South Wales,[79] R v Glennon,[80] and Dupas v The Queen,[81] and in a number of decisions of this Court, including Hermanus (a pseudonym) v The Queen,[82] Green (a pseudonym) v The Queen,[83] Morton (a pseudonym) v The Queen,[84] McGee (a pseudonym) v The Queen,[85] and Ballard (a pseudonym) v The King.[86]
[78](1980) 147 CLR 75.
[79](1989) 168 CLR 23; [1989] HCA 46 (‘Jago’).
[80](1992) 173 CLR 592; [1992] HCA 16.
[81](2010) 241 CLR 237; [2010] HCA 20.
[82](2015) 44 VR 335; [2015] VSCA 2 (‘Hermanus’).
[83][2017] VSCA 277 (‘Green’).
[84][2020] VSCA 49.
[85][2020] VSCA 146 (‘McGee’).
[86][2024] VSCA 26 (‘Ballard’).
The test for the grant of a permanent stay is particularly stringent. The Court should only grant a stay, in cases involving delay, in exceptional circumstances. The applicant must demonstrate that the continuation of the proceedings would involve such an unacceptable unfairness, that it would, in essence, constitute an abuse of process. The matters, which the Court should take into account in determining that issue, include the length of the delay, the reason for the delay, the public interest in the disposition of charges involving serious offences, and, on the other hand, the fundamental right of an accused person to a fair trial, and the need to maintain public confidence in the administration of justice. In determining that question, the Court must take into account the ability of a trial judge to make appropriate evidentiary rulings, and to give directions

to the jury, which may alleviate the prejudice sustained by the accused as a result of the delay.[87]
[87]Hermanus (2015) 44 VR 335, 342 [40] (Priest JA); [2015] VSCA 2; McGee [2020] VSCA 146, [137]–[141] (Maxwell P, T. Forrest and Weinberg JJA); Morton [2020] VSCA 49, [93]–[95] (Beach and Kyrou JJA); Ballard [2024] VSCA 26, [47] (Priest JA).

Those principles were conveniently outlined by Priest JA in Hermanus in the following terms:
As I have said, the trial judge derived guidance from FJL. The following propositions may, I think, be drawn from the judgment of Osborn JA (with whom Redlich JA and Sifris AJA agreed) and the cases there cited:
·First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the Court.
·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.[88]
[88]Hermanus (2015) 44 VR 335, 342 [40] (citations omitted).

Following the decision of the High Court in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore,[89] the standard of appellate review that this Court must apply when considering the decision of the judge, to refuse a permanent stay of the proceeding, is the ‘correctness standard’ described in Warren v Coombes.[90] Thus, in the present case, the question, which we must determine, is whether, based on the facts as found by the judge and which were undisputed, the judge was correct not to conclude that the trial of the charges would be unacceptably unfair and unjust so as to constitute an abuse of process.
[89](2023) 414 ALR 635; (2023) 97 ALJR 857; [2023] HCA 32.
[90](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

Analysis and conclusion

In applying those principles, the starting point is the exceptionally lengthy period of delay between the date of the alleged offending, namely, a period of between 37 years and 43 years. The respondent accepted that the delay was not caused or contributed to by any action or fault on the part of the applicant.
Such a period of delay is not, of itself, sufficient to require that a court stay the prosecution of the charges. However, as accepted by the respondent, the length and nature of the delay in the present case necessarily gives rise to presumptive prejudice to the applicant in his defence of the charges.
In the present case, the delay is of particular relevance, in view of the fact that the applicant, himself, was of a particularly young age at the time at which he is alleged to have committed some of the charges, and the uncharged acts. The applicant is now, at the age of 55 years, being required to answer charges in respect of actions which are alleged to have been committed by him when he was aged between 14 years and 20 years. That circumstance, of itself, would necessarily affect the applicant’s capacity to properly recall the circumstances of his relationship with the complainant, and, in particular, to identify aspects of the account, given by the complainant, and other evidence and matters, which might enable him to adequately defend the charges.
That difficulty is exacerbated by the circumstance that the complainant has had particular difficulty recalling the events, that constitute the subject of his complaints, with sufficient detail to enable a proper consideration and evaluation of them.
In his evidence in the committal proceeding, the complainant agreed that he had been drinking alcohol to excess since he was a young person, and that he had also indulged in the use of marijuana throughout his adult life. The complainant accepted that the deficiency in his memory is related to his alcoholism and his use of marijuana, with the consequence that he has difficulty remembering detail about events that occurred in the 1980s. As a result, he has had difficulty recalling the events, which are the subject of the complaints, with sufficient detail to enable an appropriate investigation of, and response to, his complaints. The lack of such detail would significantly restrict the capacity of the applicant to test the complainant’s account in cross-examination, and to respond to the evidence of the complainant other than by making a bare denial of the relevant allegation.
Ultimately, if the case were to proceed to trial, the outcome of the prosecution would depend wholly, or at least most substantially, on the jury’s assessment of the reliability and credibility of the account given by the complainant.
In that context, the issues relating to charge 5, the charge of arson, are of particular relevance to the application to stay the other five charges.
Charge 5 was stayed on the basis that, as a result of the delay, the applicant was deprived of important evidence that demonstrated that the fire may not have been deliberately lit, but, rather, was the result of an electrical fault. As the primary judge noted, the circumstances in which the fire, that was the subject of the charge, occurred are entirely incapable of a proper evaluation by a jury, particularly in circumstances where there was clear circumstantial evidence that supported a conclusion that the fire was not lit in the circumstances claimed by the complainant.[91] The judge correctly considered that the value of the evidence, that has been lost as a result of the delay, was so compelling that there was actual prejudice to the applicant that could not be remedied by available jury directions. Thus, the judge concluded that if a trial proceeded on charge 5, the applicant would have been left with very limited evidence, comprising the statement of the complainant’s father tendered through a hearsay notice, a barely legible CFA report, and second or third-hand evidence of an insurance payout after an investigation.[92]
[91]Reasons [109].
[92]Ibid [110]–[111].
In his statement to police, the complainant gave a specific and detailed account that, on the date of the fire, the applicant had driven with him to the house in Lyonville with two or three jerry cans of fuel, and that he had seen the applicant douse fuel out of the cans, and set fire to the premises. Significantly, in his statement to police, the complainant had alleged that the applicant was motivated to set fire to the Lyonville property, because he was jealous that the complainant’s parents had been taking him away on weekends and going to that new house. The evidence that would have contradicted the complainant’s account, if it were available, not only would have been a cogent answer to the offence that was the subject of charge 5, but would also have significantly affected the credibility and reliability of the account given by the complainant concerning the circumstances of the fire, and, as a consequence, would have had the capacity to substantially affect the assessment, made by the jury, of the complainant’s credibility and reliability as a witness in general.
In the absence of that evidence, and, in particular, in circumstances in which charge 5 has now been stayed, if the other charges were to proceed to trial, the applicant would face a most difficult and intractable forensic dilemma for two reasons.
First, for the reasons outlined by the primary judge, the evidence lost in respect of charge 5 due to the delay was so compelling, as to require the grant of a stay on that charge. Axiomatically, as a result of the delay, any attempt by the applicant, to impugn the credibility of the complainant, based on his account of the circumstances of the fire, would be equally impaired.
Further, if counsel for the applicant were to seek to impugn the complainant’s credit, based on the circumstances of the events that were the subject of charge 5, that challenge may face a number of evidentiary difficulties, which would not have arisen if charge 5 had not been stayed.
In particular, if the complainant were to adhere to the version of the events, as to the circumstances that were the subject of charge 5, that was contained in his statement, counsel for the applicant would first be required to seek leave, under s 106 of the Evidence Act 2008, to adduce evidence that contradicted the complainant’s account. Further, as the critical witness and other evidence, that contradicted that account, is now either impaired or missing, any such evidence that was admitted, pursuant to s 106, would necessarily be limited.
For those reasons, the delay by the complainant in reporting the allegations of sexual abuse against the applicant has significantly adversely affected the capacity of the applicant to seek to damage the credibility and the reliability of the account given by the complainant in respect of a serious allegation made by the complainant against him. In the context of a prosecution case that is based almost entirely on the evidence of the complainant, and in which the prosecution case is thus dependent on the credibility and reliability of the complainant’s evidence, the consequential prejudice to the applicant’s case is most substantial and irreparable.
In addition, the delay in the reporting of the allegations against the applicant has resulted in a number of other disadvantages to the applicant in seeking to defend each of the charges against him.
On charge 1, the complainant’s evidence was that the applicant had anal sex with him on more than ten occasions in the shed at the rear of his family home when he was between ten and fourteen years of age. The complainant said that there were a few occasions on which the applicant would see the complainant’s father approaching, and the applicant would then pull up his trousers and run to the workbench and pretend to be working on something. In his statement, the complainant’s father (who is not available to give evidence) said that the applicant and the complainant used to work on the applicant’s motorbike in the shed. It might be expected that if the complainant’s father had observed anything that, in hindsight, should have excited his suspicion, that matter would have been referred to in his statement. However, the absence of any reference to that point, in his statement, would have the effect that the statement itself would be of little, if any, value to the applicant in seeking to rebut the allegations made by the complainant that are the subject of charge 1.
On charge 2, the evidence of the complainant was that the applicant had got him to become so intoxicated on the night of the offending that he was required to be taken to hospital later that night or on the next morning. As Boyce and Orr JJA have noted, as a result of the delay in the case, the complainant’s parents are unable to give evidence about the circumstances relating to the complainant’s 13^th birthday, and, importantly, there are no hospital records to support (or contradict) the account given by the complainant.
The delay may also have significantly adversely affected the capacity of the applicant to defend charges 3 and 4, which concern offences alleged to have occurred at I & S Motor Body Works. When he was spoken to by police, Mr Lording, the owner of that business, was unable to recall the complainant, and he did not know whether the complainant ever worked in the business. Police were unable to locate the previous owner of I & S Motor Body Works. There are no business records of I & S Motor Body Works that have been disclosed by the prosecution. Those records would have been relevant, to identify if and when the complainant actually did work for the business. The lack of memory of Mr Lording, and the inability to locate the previous owner of the business, might have adversely affected the capacity of the applicant to contradict the circumstances in which the complainant alleges that the offences, that were the subject of charges 3 and 4, were committed.
The applicant’s brother, Ryan Bennett, is now deceased. Ryan Bennett resided in the bungalow, in which it is alleged that the offence that was the subject of charge 6, and some ten to twenty uncharged acts, were committed by the applicant against the complainant. In order to be able to reach the applicant’s bedroom in the bungalow, it was necessary to walk through Ryan Bennett’s bedroom. In addition, the bathroom in the bungalow was shared, and Ryan Bennett would have needed to walk through the complainant’s bedroom to reach it.
Accordingly, Ryan Bennett would have been a most important witness in relation to that charge, and the uncharged acts. If he were alive, he may have been able to give evidence: about whether, and for how long, the complainant stayed in the bungalow; concerning his observations of the nature of the relationship between the complainant and the applicant; concerning how often the complainant and the applicant were in the bungalow at the same time; whether he witnessed any inappropriate behaviour by the applicant in respect of the complainant; and whether he witnessed any of the alleged incidents.
The applicant’s mother is now 82 years of age. The informant has given evidence that she is too unwell to give evidence. Mrs Bennett has provided a statement (dated 4 February 2022) to the effect that, over the years, some ten different foster children would stay with the family at their home. When asked by the informant about the complainant as someone who might have stayed at the home, Mrs Bennett stated: ‘The name rings a bell but I don’t know how. I don’t remember anyone named [the complainant]’. In view of the fact, that the complainant has stated that he lived with the applicant’s family for two years, the loss of recollection by the applicant’s mother, concerning that circumstance, could potentially deprive the applicant of important evidence, which may have assisted him to resist the charges.
The complainant identified a number of persons who spent time with him and the applicant at about the time of the alleged incidents. Some of those potential witnesses, including Peter Burridge and Ian Saunders, could have given some evidence concerning the nature of the friendship between the applicant and the complainant. In his statement, the complainant nominated Peter Burridge and Scott Stirling as persons who ‘may have known’ that the applicant was abusing him. In his evidence at the committal proceeding, the informant stated that he had endeavoured to speak to those persons, but a number of them had very limited recollections, and they had declined to make statements.
Further, some of those witnesses could have given evidence about whether the applicant was, in fact, or purported to be, a member of the ‘Mordi Boys’ gang, which was the reason that the complainant said that he had been too scared to report the offending at the time at which it occurred. In his evidence in the committal proceeding, the complainant said that the applicant and his friends constituted a gang called the ‘Mordi Boys’. He said that the applicant and his friends made threats, and that one of those friends assaulted the complainant’s father at his home. He stated that the applicant had caused that friend to ‘… punch up my dad and to tell him to more or less hand me over’.
In addition, there have been a number of shortcomings in the investigation by police of the complaints. Those shortcomings may, at least in part, have been the result of the matter having passed between some four different informants over a period of five years. However, they have materially compounded the prejudice to the applicant’s right to a fair trial.
In particular, it is evident, from the cross-examination both at the committal proceeding, and on the s 198B hearings, that police failed to take detailed notes of conversations that they had with the complainant, including relating to his lack of memory, and to the fact that he told police, on more than one occasion, that he wished to claim compensation.
It is also apparent that police did not keep detailed records of conversations that they had with relevant witnesses, including Peter Burridge, Rick Farmer, Ian Saunders, and Dave McKinna. As I have noted, police did not obtain statements from those persons.
Police have been unable to obtain records from I & S Motor Body Works concerning the employment, by that business, of the applicant and the complainant. Police did not arrange for photographs to be taken of the locations in which it is alleged the offending occurred. Further, police did not make inquiries with hospitals in respect of the account, given by the complainant, that he was hospitalised on the day after the offence that was the subject of charge 2 was alleged to have occurred. The police did not make any inquiries of, or obtain records from, Australia Power Steering, where the complainant has said that he was working at the time at which the offence that was the subject of charge 6 was committed.
Taking into account each of the matters to which I have referred, the conclusion is irresistible that, in combination, they necessarily have the effect that the applicant could not be accorded a fair trial of the charges against him. I have reached that conclusion, fully conscious that there is a strong public interest that criminal charges be determined at trial, particularly in the case of offences such as those alleged to have been committed by the applicant in the present case. However, the combined effect of the considerations, to which I have referred, would, I consider, render a trial of the applicant in respect of the charges so seriously unfair that any conviction of the applicant on those charges would bring the administration of justice into disrepute.[93]
[93]Cf Morton [2020] VSCA 49, [162] (Beach and Kyrou JJA).
In reaching that conclusion, I do take into account the range of procedures, which would be available to the trial judge in this case, to alleviate or eliminate unfairness resulting from the matters which I have discussed, including by making evidentiary rulings and giving appropriate directions to the jury.[94] Our system of justice does operate on the basis that juries can, and ordinarily do, follow directions given to them by trial judges.
[94]Jago (1989) 168 CLR 23, 46–47, 50 (Brennan J), 71 (Toohey J), 77 (Gaudron J); [1989] HCA 46.
In the present case, a number of the forensic disadvantages, which I have discussed, might be made the subject of a direction by the judge to the jury, or result in particular evidence being excluded. However, it is doubtful that each of the disadvantages could be appropriately redressed in that way. In particular, it would not be possible to formulate an appropriate direction that could sufficiently offset the significant disadvantage to the applicant arising from the loss of critical evidence relating to the arson allegation made by the complainant, that was the subject of charge 5.
Further, I do not consider that, in respect of the other aspects of disadvantage, judicial directions, and evidentiary rulings, could sufficiently overcome the combined and total effect of those disadvantages sufficiently, so as to preclude the conclusion that I have reached, namely, that the continuation of this case would be an abuse of process. In that context, as has been recognised in previous cases, experience does demonstrate that, in a criminal trial, there may come a point where, if a judge gives too many directions of the kind that would be necessary in this case, the impact of those directions on the jury would be correspondingly diminished.[95]
[95]Green [2017] VSCA 277, [105] (Priest, Kaye and Coghlan JJA).
For the foregoing reasons, it follows that, applying the ‘correctness’ standard on this appeal, the application for leave to appeal should be granted, and the appeal allowed. The order by the judge, refusing the application that charges 1, 2, 3, 4 and 6 be stayed, should be set aside, and, in lieu, it should be ordered that each of those charges be permanently stayed.

---

[2025] VSCA 208

4 September 2025