Canning (a pseudonym) v The King

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCR 2025 0089

ANTHONY CANNING (a pseudonym)[1]	Applicant
v
THE KING	Respondent

[1]To avoid the risk of a victim of a sexual offence being identified, these reasons for judgment have been anonymised.

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JUDGES:	PRIEST, BEACH and WALKER JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2025
DATE OF JUDGMENT:	11 September 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 215
JUDGMENT APPEALED FROM:	DPP v [Canning] (Unreported, 2 & 7 May 2025, County Court of Victoria, Judge Bourke)

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CRIMINAL LAW – Interlocutory appeal – Review of refusal to certify – Historical sexual offences – Five complainants were students at school where applicant was teacher – Delay of 36 to 46 years since alleged offending – Witnesses deceased – Documentary evidence lost – Evidence – Trial judge refused permanent stay – Trial judge refused to certify for interlocutory appeal – Leave to appeal granted – Appeal allowed – Permanent stay ordered.

Criminal Procedure Act 2009, ss 295, 296.

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Counsel
Applicant		Ms R Shann SC with Ms L Bull
Respondent		Ms P Thorp
Solicitors
Applicant	Pica Criminal Lawyers
Respondent	Ms A Hogan, Solicitor for Public Prosecutions

PRIEST JA
BEACH JA
WALKER JA:

Introduction

On 17 November 2023, the applicant was committed for trial in the County Court on charges for sexual offences allegedly committed throughout the 1980s upon students at a school and associated boarding residence at which the applicant was employed.
An indictment filed in the County Court — the third indictment, the first having been filed on 13 December 2023 — charged the applicant with:
•indecent assault of a male[2] (five charges – charges 1, 4, 7, 8 and 9);
•sexual penetration of a person aged between 10 and 16[3] (five charges – charges 2, 3,10, 11 and 13);
•gross indecency with a person under 16[4] (three charges – charges 5, 6 and 12);
•attempted rape[5] (two charges – charges 14 and 16);
•indecent assault[6] (two charges – charges 15 and 17);
•indecent assault of a person under 16[7] (three charges – charges 18, 19 and 20).
[2]Crimes Act 1958, as amended by the Crimes (Amendment) Act 1967, s 68(3A).
[3]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, s 48(1).
[4]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, s 50(1).
[5]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, s 45(2).
[6]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, s 44(1).
[7]Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980, s 44(3).
There were seven complainants: ‘JH’ (charges 1, 2 and 3); ‘WK’ (charge 4); ‘AM’ (charges 5 and 6); ‘AN’ (charges 7 to 13); ‘AP’ (charges 14 to 17); ‘JB’ (charge 18); and ‘QS’ (charges 19 and 20). Charges 14 to 17, involving AP, have, however, since been permanently stayed.[8]
[8]By a ruling delivered on 6 May 2025, the trial judge ordered a permanent stay of proceedings on these charges. That ruling is not challenged in this Court.
The matter first came before the trial judge on 20 February 2024. Thereafter, the judge delivered a number of evidentiary rulings. Importantly, in the period between 7 March 2024 and 27 March 2025, over 14 separate sitting days,[9] 25 witnesses were examined pursuant to s 198A of the Criminal Procedure Act 2009 (‘CPA’).[10]
[9]The sitting days were 7 and 8 March 2024; 13, 14 and 15 March 2024; 23 and 24 April 2024; 1 November 2024; 10 and 11 February 2025; 18 and 19 March 2025; and 26 and 27 March 2025.
[10]The witnesses included: the six complainants JH, WK, AM, AN, JB and QS; ten teachers from the school; a hostel assistant; a boarding house supervisor; the mothers of QS and AM; the father and sister of AP; a disability support worker; and two investigating police.
On 2 May 2025, the trial judge refused a defence application for a permanent stay of proceedings on charges 1 to 13, and 18 and 19 (‘the ruling’ or ‘the interlocutory decisions’).[11]
[11]The defence did not seek a stay of proceedings on charge 20, a charge of indecently assaulting QS, a child under 16, by kissing him on the lips.
Subsequently, on 7 May 2025, the judge refused to certify under s 295(3)(b) of the CPA that the interlocutory decision was ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’ (‘the certification ruling’).
Pursuant to s 296 of the CPA, the applicant sought a review of the judge’s refusal to certify on a single ground that asserted that the judge ‘was wrong to conclude that the decision to refuse the permanent stay applications on charges 1–13 and 18–19 was not of sufficient importance to justify it being determined on an interlocutory appeal’.[12]
[12]The application to review the refusal of certification with respect to charges 13 and 18 ultimately was not pursued.
Were the application for review to be successful, by a notice dated 19 May 2025, which was subsequently amended,[13] the applicant seeks leave to appeal against the interlocutory decision on six ‘grounds’, relating respectively to the:
•JH charges (charges 1, 2 and 3 – ground 1);
•WK charge (charge 4 – ground 2);
•AM charges (charges 5 and 6 – ground 3);
•AN charges (charges 7 and 8 – ground 4(a); charge 9 – ground 4(b); and charges 10, 11 and 12 – ground 4(c)); and
•QS charge 19 (ground 6).
Each ‘ground’ — unburdened by particulars — simply asserted in relation to each identified charge that the trial judge ‘was wrong in refusing to permanently stay’ the charge.
[13]Ground 4(d), relating to charge 13, and ground 5, relating to charge 18, were abandoned.
In summary, the applicant continues to challenge the refusal of a permanent stay on charges 1 to 12 and charge 19, but no longer seeks to challenge the judge’s refusal to stay charge 13 (relating to AN) or charge 18 (relating to JB). As we have indicated, charges 14 to 17 (relating to AP) were previously stayed; and charge 20 (relating to QS) was not the subject of an application for a stay.
For the reasons that follow, we consider that the application to review the refusal of certification must succeed and leave to appeal against the interlocutory decision must be granted. We would allow the appeal and set aside the interlocutory decision. In lieu of the order of the trial judge refusing a stay, we would order that proceedings on charges 1 to 12 and charge 19 be permanently stayed.

Background

By way of background, the prosecution alleges that the applicant sexually offended against a number of boys in the 1980s when a teacher at a Melbourne school for the deaf (‘the school’). The applicant worked at the school from 1982 until its closure in 1991. He had various leadership positions, including Vice-Principal, and his role included supervising students at TAFE and work placements, and assisting students with integration into mainstream schools, which meant he was often off campus. The applicant did not, however, perform duties as a classroom teacher.
Charges 1 to 3, involving JH; charges 5 to 6, involving AM; and charges 7 and 8, and 10 to 12, involving AN; are all alleged to have occurred at a student boarding residence associated with the school (‘the residence’). The residence was physically located about 600 metres from the school.
The evidence suggests that the applicant was the teacher in charge of the residence from 1978 or 1979 until the end of 1981 (or early 1982). In that capacity, he lived with his wife and children in a house attached to the residence. The role of the teacher in charge was general administration, some hostel supervision time and school administration duties. There is some evidence that the applicant also covered his replacement’s leave for several weeks between 23 June 1986 and 26 July 1986.
In proof of the charges, the prosecution seeks to rely on the applicant’s tendency to have a sexual interest in boys under the age of 16 and 17, and a willingness to act on that sexual interest by sexually interacting with students who were pupils at the school; to do so when there were other people in the immediate vicinity; and to use his position of authority within the school to do so.[14]
[14]The prosecution has filed an Amended Notice of Intention to Rely on Tendency Evidence at Trial, dated 1 April 2025.
All of the charges are laid between dates. Significantly, save for the allegations founding charge 19 — which alleges the offence took place 35 to 36 years ago, between 25 October 1988 and 25 October 1989 — all of the commencement dates of the charges relate to alleged offending more than 40 years ago (the commencement date for charge 9 being 21 June 1979).
The applicant denies the allegations. In a record of interview conducted on 9 February 2022, the applicant told police that the sexual activity alleged ‘never happened’. He said the allegations were ‘not real’. They were ‘an absolute mystery’ to him, and he was ‘amazed’ by them.

The interlocutory decision refusing a stay of proceedings

In the course of the ruling, the judge noted that he had the following material before him including:
•the latest version of the Prosecution Opening,[15] dated 15 April 2025;
•the Defence Response;[16]
•relevant parts of the committal depositions;
•transcripts of the evidence given by a number of witnesses pursuant to s 198A of the CPA — the judge having seen and heard the evidence as it was given — with accompanying exhibits; additional witness statements; floor plans; sketches and photographs of staff and children (often dated); and the residence staff meeting minutes;
•defence written submissions concerning a permanent stay, dated 15 April 2025 (together with Annexure A, a detailed chart setting out in tabular form ‘evidence or potential evidence impacted by delay’);
•prosecution written submissions in opposition to a stay, dated 15 April 2025;
•a prosecution chart reflecting periods of the applicant’s time at the residence and the school, corresponding to periods of the complainants’ time there and to the ‘between dates’ particulars of the charges; and
•chronologies of the steps in the proceedings.
[15]See CPA, s 182.
[16]See CPA, s 183.
The judge also noted that he had been referred to a number of authorities, including FJL, Morton, McGee, Kenny, Carson, Brewer and Green.[17]
[17]The citations for these cases are footnoted at [47] below.
So far as the principles guiding the decision to grant or refuse a stay were concerned, the judge noted:
•the onus is upon the applicant to persuade the court to ‘exercise [the] discretion’ to order a stay of the proceeding;
•a stay should be granted only in rare or exceptional circumstances where the continuation of proceedings would involve unacceptable injustice, or would be so unfairly and unjustifiably oppressive, as to constitute an abuse of process (which can result from a probable forensic disadvantage that is incurable);
•the power to stay must be exceptional since it results, in effect, in a refusal to exercise jurisdiction;
•there must be a fundamental defect which goes to the root of the trial of such a nature that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences (such as by rulings on evidence, and directions to the jury concerning forensic disadvantage);
•balanced against the possible unfairness or prejudice is the public interest in hearing charges of serious offending;
•a non-exhaustive list of relevant considerations includes the length, causes and impact of delay (such as upon memory); the unavailability of witnesses or relevant documents; the applicant’s situation and health; proven or likely prejudice to the applicant; and the apparent strength or weakness of the Crown case;
•on the question of whether it is shown that the trial cannot be fair, the exercise of discretion requires an evaluation of the evidence (and what is missing);
•unfairness or prejudice which meets the test need not be a single, isolated factor but can be a combination of factors;
•a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been destroyed, or witnesses have died such that the jury will be called upon to determine issues of fact on less than all of the relevant material; and
•in a case of considering the impact of unavailable witnesses and other material — which was the ‘main plank of the defence arguments’ — in order to justify a stay it is the probability of unacceptable unfairness, rather than the possibility, that is critical.
We pause to note that the judge strictly was in error to observe that he was required to exercise a ‘discretion’, since, as was explained in GJL,[18] the exercise of the power to permanently stay proceedings on the ground that they are an abuse of process — because any trial will be necessarily unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process — is ‘an evaluative but not a discretionary decision’.[19] Apart from that inconsequential blemish, however, it is clear that the judge otherwise correctly identified the relevant principles.
[18]GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857 (‘GLJ’).
[19]GLJ, 865 [15] (Kiefel CJ, Gageler and Jagot JJ). See also 868–9 [26]; 881 [95] (Steward J); 892 [161] (Gleeson J). See further Ballard (a pseudonym) v The King [2024] VSCA 26 [41]–[45] (Priest JA, Walker JA and Croucher AJA agreeing) (‘Ballard’); Haris (a pseudonym) v The King [No 2] [2024] VSCA 9, [57] (Emerton P and Boyce JA).
In other aspects of his ruling, the judge said — drawing ‘particular guidance’ from McGee[20] — ‘the required focus is upon the question of specifically shown probable unfairness which is incurable’. The judge said that ‘significant weight’ had to be given to ‘the public interest in hearing and deciding this case’ which ‘should be seen as high’, given that the alleged offending involved ‘very vulnerable complainants, some very young, in an institutional environment under the care of the [applicant] and others’, in circumstances where a number of the charges ‘allege serious sexual abuse’. He also said he had ‘formed the view that one could not describe the [prosecution] case as weak in relation to any of the 19 charges on which a stay is sought’.
[20]McGee, [140] (Maxwell P, T Forrest and Weinberg JJA).
Further, the judge observed:[21]
My evaluation should be upon what is lost and its real forensic importance. I have sought to assess in this way the quality of what is lost, i.e. what is lost as exculpatory, in the context of the test of probable, not just possible, prejudice; that prejudice being incapable of cure. That also entails consideration, as best can be done at the present stage, of available measures to address potential prejudice. That is here primarily direction to the jury.
The focus must be on the defence case and impact upon it. However, in my view, to be a legitimate evaluation, it must be made given the setting of the Crown case; put another way, what might be called the forensic realities of the case; for example, including what evidence is not challenged, what is clearly shown (or not shown to be) by the evidence, what parts or aspects of the Crown evidence are challenged by the defence, and in what way.
The defence argument points to a combination of factors. The quality of that combination must be assessed, including by reference to the strength of its component parts. For example, in this case, it can be said that the defence materials identify a large number of missing witnesses and records. I find that very many are very much peripheral to the important evidence and issues and very heavily dependent on speculation.
Applying the approach described to each charge, assessing the combination of factors raised, and on the basis of the relevant tests for permanent stay, I am not persuaded to stay any of these 15 charges.
[21]Emphasis added to this and following passages.
Next, in an exercise which it is impractical to try and summarise, the judge undertook a relatively exhaustive analysis of the circumstances relevant to the charges the subject of the stay application, including the evidence that exists and the evidence that is no longer available. And having considered a number of other relevant factors, the judge concluded:
The stringency of the test for permanent stay is clearly and emphatically stated by the authorities. As authority states, the reason for that is also clear. It is a refusal to exercise jurisdiction. I refuse the application for permanent stay on Charges 1 to 13, 18 and 19. That is my ruling.

The certification ruling

In his certification ruling, the judge set out the text of s 295(3)(b), and referred to the provisions of ss 296 and 297(1), of the CPA. He then said that ss 297(1)(b)(i) and (iv) ‘significantly support the case for certification’, but that ‘here [he] should consider more than that’.
The judge then said that he had been referred to McDonald,[22] a case concerned with the application of s 295(3)(b) of the CPA. He observed that in McDonald there ‘was no hope of success’ and that ‘the facts of that case are far removed from this’. The judge then observed that ‘McDonald goes on to give further guidance as to what the trial judge must do on the question raised in s 295(3)(b) “sufficient importance to the trial”’. He observed that Ashley JA had said there was ‘the need for a value judgment, which must include the merits of the appeal’. Having then set out certain observations of Ashley JA[23] and Redlich JA[24] in McDonald, the judge said:[25]
In my view, very shortly put, the defence arguments made before me may on their face appear viable, for example numerically (there are multiple records and witnesses said to be missing); but on closer assessment they fall away on the qualitative side. For the reasons I have stated I have found that they quite emphatically fall short of meeting the relevant test. That is, given the stringency of that test, in turn given the extreme step or effect of refusing jurisdiction.
There are two further matters I see as relevant.
(1) There is an important and legitimate aspect of the ‘wait and see’ in this case. There is available, if convicted, an appeal to the Court of Appeal including on matters which may be put as causing the trial to be unfair and the refusal to permanently stay.
In my view this has particular significance in this case. This is a case particularly in which jury direction addressing delay, for example both as to forensic disadvantage and loss or erroneous memory, looms as important. Proper assessment of such direction, its nature, extent and forensic worth is much more capable of being done when those directions have been made, in response to and addressing what the evidence actually comes to be.
(2) I also refer to my already expressed concerns about the delay and fragmentation in this case ... There are very apparent impacts on participants, the accused, the complainants and as I have observed on witnesses ... There are issues of age, health, frailty and some distress. I said then, ‘I fear the further prolongation will exacerbate the problems that already exist. It’s a combination of things that I am worried about, and it’s not just the emotional distress of people. There is that, but there are other problems attached to age, health, frailty and the prospect of now further delay. I have come to the stage where I fear that that combination of factors exist which here potentially impacts upon the proper management and fairness of the trial if I let the matter drift further’. …
[22]McDonald v DPP (2010) 26 VR 242 (‘McDonald’).
[23]Ibid 245 [17]. See also 245 [15].
[24]Ibid 246 [21].
[25]Emphasis added to the following passage.

The approach to a trial judge’s refusal to certify

It is convenient to consider first the approach that this Court must take when dealing with the judge’s refusal to certify.
Because the interlocutory decision in this case did not concern the admissibility of evidence, and because the interlocutory decision was not made after the trial commenced,[26] the sole criterion governing the trial judge’s decision whether to certify is that set out in s 295(3)(b): whether ‘the interlocutory decision is otherwise of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. Notwithstanding his reference to s 295(3)(b), however, it is difficult to discern any point in the certification ruling at which the judge distinctly engaged with the statutory criterion contained within it.
[26]See CPA, s 210.
In the course of the certification ruling the judge did say that the provisions of ss 297(1)(b)(i) and (iv) ‘significantly support the case for certification’, but that ‘here [he] should consider more than that’. Those were not factors, however, that the judge was required to take into account. Indeed, the considerations in s 297(1)(b)(i) and (iv) — whether the determination of the appeal against the interlocutory decision may render the trial unnecessary, or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial — are factors reserved exclusively for the consideration of the Court of Appeal when considering whether to grant leave to appeal.
It seems to us that the gravamen of the certification ruling may be found in the observation that, ‘very shortly put, the defence arguments made before me may on their face appear viable, for example numerically (there are multiple records and witnesses said to be missing); but on closer assessment they fall away on the qualitative side’. Once more, however, that observation does not appear to engage directly with the terms of s 295(3)(b).
As we have said, the judge relied on the observations of Ashley JA (with whom Neave JA agreed) in McDonald, a case concerned with a judge’s refusal to certify under s 295(3)(b). Ashley JA said:[27]
It is, I think, correct to say that if the judge concludes that the decision meets the statutory description in para (b) — that is, ‘that the decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’ — then the judge must certify. At that point, no question of the exercise of a discretion arises. But in determining whether the circumstances fit the description in para (b), the judge is required, as I see it, to make what may be called a value judgment.
In this case, the judge was rightly of the opinion that an appeal would be quite hopeless. In those circumstances, it could not have been concluded, and should not have been concluded by his Honour, that the decision was of sufficient importance to the trial to justify it being determined on an interlocutory appeal. An argument, if accepted, may be such as would render a trial unnecessary. But if the argument is without any merit, it cannot be said that it possesses the quality of ‘sufficient importance to the trial’ which is required by para (b).
I should finally make this observation. Nothing that I have said should be taken to mean that, if a judge considers an unsuccessful argument to have been something better than absolutely hopeless, the statutory description will necessarily be satisfied. Nor should it be taken to imply that the value judgment must necessarily be confined to consideration of prospects of success. Simply, there should not have been certification in the present case because, as the learned judge rightly concluded, the point raised lacked any legal merit.
[27]McDonald, 245 [15]–[17].
The key features of McDonald appear to be: first, if the judge concludes that the decision meets the statutory description in s 295(3)(b) then the judge must certify; secondly, in order to determine whether ‘the decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’, the judge is required to make a value judgment; and thirdly, that value judgment ‘must [not] necessarily be confined to consideration of prospects of success’ (although, an argument ‘without any merit’ might properly be regarded as not being of ‘sufficient importance to the trial to justify it being determined on an interlocutory appeal’).
In a later case, Lindsey,[28] a trial judge had refused to certify under s 295(3)(a) — not s 295(3)(b) — on the basis that he ruling was ‘not attended by sufficient doubt’. This Court made clear that the relevant provisions of the CPA neither permit nor require any separate consideration of whether the decision is ‘attended with sufficient doubt’. The Court said:[29]
With great respect, there is no further step to be taken once a judge is satisfied — as her Honour was — that the evidence the subject of the interlocutory decision meets the ‘eliminate or substantially weaken’ requirement in s 295(3)(a). The statute neither permits nor requires any separate consideration of whether the decision is ‘attended with sufficient doubt’.
The idea of a ‘sufficient doubt’ hurdle to certification first emerged in McDonald v DPP, where the Court was concerned not with s 295(3)(a) but with s 295(3)(b). Under that provision, the statutory question is whether the decision is ‘of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.
[28]Lindsey (a pseudonym) v The Queen (2021) 64 VR 510 (Maxwell P, Kyrou and Niall JJA) (‘Lindsey’).
[29]Ibid 521 [54]–[55]. See also Thomas (a pseudonym) v DPP [2021] VSCA 269, [6] (Beach, Niall and Walker JJA).
Setting out [15] and [16] of McDonald,[30] the Court observed that ‘Ashley JA (with whom Neave JA agreed) said that consideration of the merits of an appeal may be required in order for the judge to decide whether the “sufficient importance” requirement is met’. The Court went on to say:[31]
Subsequent decisions which applied McDonald stated the position more strongly. In Stannard v DPP,[32] for example, it was said that a ‘certificate should not be granted unless the trial judge considers his or her decision is attended with sufficient doubt to warrant an expedited review of the decision’.[33] With respect, however, those statements went beyond what had been held in McDonald, which correctly linked — and confined — the making of such a ‘value judgment’ about the correctness of the decision to the judge’s statutory task of deciding whether the requirement of ‘sufficient importance’ had been met.
[30]See [30] above.
[31]Lindsey, 521 [57].
[32](2010) 28 VR 84; [2010] VSCA 165 .
[33]Ibid 90 [27] (Redlich JA); see also Dertilis v R [2010] VSCA 360, [14] (Nettle JA); MA v R (2011) 31 VR 203, 205 [5]–[6]; [2011] VSCA 13 (Redlich JA).
By virtue of s 296(4), on a review of the refusal of a judge to certify under s 295(3) of the CPA, this Court must ‘consider the matters referred to in section 295(3)’; and ‘may give the applicant leave to appeal against the interlocutory decision’ if ‘satisfied as required by section 297’.
It is plain that s 296(4) requires this Court first to consider whether the ‘interlocutory decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’.[34] Presumably, if the Court considers that the interlocutory decision is not of sufficient importance to the trial to justify it being determined on an interlocutory appeal, the Court would not go on to consider the factors set out in s 297. The CPA provides no guidance, however, as to those factors that may inform a consideration of whether an interlocutory decision is of ‘sufficient importance’ to the trial to ‘justify’ it being determined on an interlocutory appeal.
[34]See s 295(3)(b).
Next, s 297(1) makes it clear that, if the Court considers that the ruling is of sufficient importance to the trial to justify it being determined on an interlocutory appeal, the Court may still only grant leave to appeal if satisfied that ‘it is in the interests of justice to do so’.
In determining whether it is in the interests of justice to grant leave to appeal against the interlocutory decision, the Court must have ‘regard’ to several factors enumerated in s 297(1), including:
(a)the extent of any disruption or delay to the trial process that may arise if leave is given; and
(b)whether the determination of the appeal against the interlocutory decision may—
(i)render the trial unnecessary; or
(ii)substantially reduce the time required for the trial; or
(iii)resolve an issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or
(iv)reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and
(c)any other matter that the court considers relevant.

In Moore,[35] the High Court made it clear that, in determining whether to grant leave to appeal from an interlocutory decision, this Court should consider whether the decision reveals some error of principle which, together with the various other factors in s 297(1), may dictate whether the Court is satisfied that the interests of justice warrant a grant of leave to appeal.
[35]Moore (a pseudonym) v The King (2024) 419 ALR 169 (Gageler CJ, Edelman, Steward, Gleeson and Beech-Jones JJ) (‘Moore’).
Moore was a case where, on a trial for violent and other offences, the trial judge refused to exclude certain evidence under s 137 of the Evidence Act 2008, on the basis that its probative value was outweighed by the risk of unfair prejudice. Following the trial judge’s certification under s 295(3)(a) of the CPA, on an application for leave to appeal the judge’s decision, this Court observed that it was ‘well-established’ that House[36] principles applied to an interlocutory appeal from a trial judge’s decision whether to exclude evidence under s 137.[37] On appeal from this Court’s decision, however the High Court ultimately held that the House standard of appellate review did not apply. Since there can only be one correct answer to the evaluative assessments required by s 137, the relevant standard to be applied by this Court in considering an appeal from a ruling as to whether or not evidence should be excluded under s 137 is the ‘correctness standard’.[38]
[36]House v The King (1936) 55 CLR 499 (‘House’).
[37]Moore, 173 [10].
[38]Ibid 174–5 [18].
Furthermore, as we have indicated, the High Court in Moore also made a number of important observations about the regime for interlocutory appeals contained in the CPA, including:[39]
The Court of Appeal may only grant leave to appeal against an interlocutory decision if it is satisfied that it is in the interests of justice to do so, having regard to various factors, including the extent of any disruption or delay to the trial process that may arise and whether the determination of the appeal may: render the trial unnecessary; substantially reduce the time required for the trial; resolve any issue of law, evidence or procedure that is necessary for the proper conduct of the trial; or ‘reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial. …
If leave to appeal is granted, the appeal is determined by reference to the evidence given before the trial judge, unless the Court of Appeal grants leave to adduce additional evidence. The Court of Appeal ‘may affirm or set aside the interlocutory decision’ and, if the decision is set aside, the Court ‘may make any other decision that [it] considers ought to have been made’ or may remit the matter to the court which made the interlocutory decision for determination. These statutory provisions confirm that the Court of Appeal undertakes an appeal by way of rehearing.
As the secondary materials relating to the introduction of the Criminal Procedure Act confirm, the statutory provisions requiring certification by the trial judge before a party may seek leave to appeal, and specifying the matters to which the Court of Appeal may have regard in determining whether to grant leave to appeal, seek to balance the desirability of allowing interlocutory appeals that are genuinely likely to reduce delay against the consequences of fragmenting the process of a criminal trial. Nevertheless, nothing in these statutory provisions provides any support for applying a different standard to the review undertaken by the Court of Appeal of a decision under s 137 of the Evidence Act once leave to appeal has been granted to that which follows from the nature of the decision itself. It may be that, in determining whether to grant leave to appeal from such a decision, the Court of Appeal will consider whether the trial judge’s decision reveals some error of principle which, along with the various other factors, may weigh in the determination of whether the Court is satisfied that the interests of justice warrant a grant of leave to appeal. However, if leave to appeal is granted, then, in determining whether to affirm or set aside the interlocutory decision, the Court of Appeal is required to apply the standard of review dictated by the nature of the decision the subject of the appeal. For the reasons already explained, where the decision the subject of the appeal concerns whether evidence should be excluded under s 137 of the Evidence Act, that standard is the correctness standard.
[39]Ibid 176–7 [23]–[25]. (Footnotes omitted, emphasis added.)
As the High Court made clear in the passages set out immediately above, the CPA provisions governing interlocutory appeals seek to balance the desirability of allowing interlocutory appeals that are genuinely likely to reduce delay against the consequences of fragmenting the process of a criminal trial. The High Court also made it clear that, in determining whether this Court is satisfied that the interests of justice warrant a grant of leave to appeal, the Court will consider whether the trial judge’s decision reveals some error of principle which, along with the various other factors, may weigh in the determination of whether to grant such leave.
In summary, the approach that this Court must adopt on an application to review a judge’s refusal to certify under s 295(3)(b) of the CPA is as follows.
First, the Court must consider whether ‘the interlocutory decision is … of sufficient importance to the trial to justify it being determined on an interlocutory appeal’. In so doing, the Court must make a value judgment, such value judgment being informed by, but not confined to, a consideration of the prospects of success of an application for leave to appeal. If the Court concludes that the decision is not of sufficient importance to the trial to justify it being determined on an interlocutory appeal, then that is the end of the matter, and the application to review the judge’s decision to refuse certification must fail.
Secondly, if the Court considers that the decision is of sufficient importance to the trial to justify it being determined on an interlocutory appeal, that is not determinative of an application for leave to appeal, since the Court may only grant such leave if satisfied that it is in the interests of justice to do so. In considering whether it is in the interests of justice to do so, the Court must consider enumerated criteria, including the extent of any disruption or delay to the trial process that may arise if leave is given; whether the determination of the appeal against the interlocutory decision may render the trial unnecessary, or reduce the likelihood of a successful appeal against conviction in the event that the accused is convicted at trial; and ‘any other matter that the court considers relevant’.
Approaching the matter as set out above, we are of the view that the interlocutory decision impugned is of sufficient importance to the trial to justify it being determined on an interlocutory appeal. Self-evidently, a permanent stay of proceedings on charges 1 to 12 and 19, will obviate the need for a trial on those charges. Moreover, the staying of those charges plainly will have a dramatic impact on the evidentiary landscape of any trial of charges 13, 18 and 20. Furthermore, this is not a case where the application has no real prospects of success.
We are also satisfied that the interests of justice demand that leave to appeal be granted. The trial process has already been significantly — and, we consider, unacceptably — disrupted. A successful appeal will avoid further disruption. Furthermore, the successful determination of the putative appeal against the interlocutory decision will render a trial unnecessary on charges 1 to 12 and 19. And self-evidently, the staying of those charges will negate the possibility of a successful appeal with respect to them, and will reduce the likelihood of a successful appeal against conviction on the remaining charges.

Applicant’s submissions

Senior counsel for the applicant commenced her submissions as to when delay might justify a stay of criminal proceedings by reminding the Court of the principles set out by Mason CJ in Jago,[40] and as summarised in Hermanus.[41] Counsel then took the Court to a number of cases involving very long delay where the relevant principles had been applied, including: FJL;[42] Hermanus (once more);[43] Bauer;[44] Jones;[45] Brewer;[46] Green;[47] Kenny;[48] Carson;[49] Shannon;[50] Pound;[51] Morton;[52] McGee;[53] Lucciano;[54] Buchanan;[55] and Newell.[56]
[40]Jago v District Court of NSW (1989) 168 CLR 23, 33–34 (‘Jago’).
[41]Hermanus (a pseudonym) v The Queen (2015) 44 VR 335, 341–3 [37]–[41] (Priest JA) (‘Hermanus’).
[42]R v FJL (2014) 41 VR 572, 573 [8], 576 [20], 577 [25]–[26], 587–8 [79]–[85] (Osborn JA) (‘FJL’). (Delay of 32 years.)
[43]Hermanus, 339 [26], 345 [46] (Priest JA). (Delay of 40 years.)
[44]Bauer (a pseudonym) v The Queen (2015) 46 VR 382, 389 [32], 405–6 [110]–[112] (Weinberg JA) (‘Bauer’). (Delay of 16 to 48 years.)
[45]Jones (a pseudonym) v The Queen [2017] VSCA 111, [66]–[67], [74] (Whelan and Ferguson JJA and Kidd AJA) (‘Jones’). (Delay of 40 to 42 years.)
[46]Brewer (a pseudonym) v The Queen [2017] VSCA 117 (Maxwell P, Kyrou JA and Croucher AJA) (‘Brewer’). (Delay of 34 years.)
[47]Green (a pseudonym) v The Queen [2017] VSCA 277, [81]–[83], [102], [105] (Priest, Kaye and Coghlan JJA) (‘Green’). (Delay of 44 to 52 years.)
[48]Kenny (a pseudonym) v The Queen [2018] VSCA 220, [67] (Taylor JA) (‘Kenny’). (Delay of 33 to 42 years.)
[49]Carson (a pseudonym) v DPP [2019] VSCA 4, [16]–[17] (Maxwell P and T Forrest JA) (‘Carson’). (Delay of 43 to 48 years.)
[50]Shannon (a pseudonym) v The Queen [2019] VSCA 27 (Priest, Kyrou and Kaye JJA) (‘Shannon’). (Delay of 43 years.)
[51]Pound v The Queen [2019] VSCA 279. (Delay of 51 to 55 years.)
[52]Morton (a pseudonym) v The Queen [2020] VSCA 49, [132], [137], [138], [141], [154] (Beach and Kyrou JJA) (‘Morton’). (Delay of 53 to 56 years.)
[53]McGee (a pseudonym) v The Queen [2020] VSCA 146, [140] (Maxwell P, T Forrest and Weinberg JJA) (‘McGee’). (Delay of 51 to 53 years.)
[54]Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529, 539–41 [42]–[48] (McLeish, Niall and T Forrest JJA) (‘Lucciano’). (Delay of 56 to 57 years.)
[55]Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50 (Emerton P, Whelan JA and Elliott AJA) (‘Buchanan’). (Delay of 22 to 37 years.)
[56]Newell (a pseudonym) v The King [2025] VSCA 160 (Taylor, Kidd and Osborn JJA) (‘Newell’). (Delay of 37 to 40 years.)
All but one of the allegations the subject of this application occurred over 40 years ago.[57] Counsel submitted that delays of such magnitude, even in cases of historical sexual offences, are exceptional.[58] This Court, counsel submitted, has observed that in cases involving delays in the order of 40 to 60 years after the alleged events, ‘the forensic difficulties which delays of this order of magnitude inflict suggest that such trials should be rare’.[59]
[57]The activity founding charge 19, involving QS, is alleged to have occurred 35 to 36 years ago.
[58]Bauer, 403 [100] (Priest JA).
[59]Lucciano, 541 [48] (McLeish, Niall and T Forrest JJA).

Counsel for the applicant submitted, however, that the unacceptable unfairness in the trial of the applicant’s charges results not only from presumptive prejudice arising from delay, but from ‘specific prejudices which combine to render the trial of each incident the subject of this application fundamentally flawed’. As a result of the delay, there was missing evidence, the result of which was that any trial would be ‘unacceptably unfair’. While the trial judge ‘identified the overarching correct principles’, counsel submitted, he was wrong to fail to find that there existed ‘unacceptable unfairness which goes to the root of the trial’, because he failed to appreciate the importance of the missing evidence to the trial.
The applicant’s counsel contended that it was in the interests of justice that this Court grant leave to appeal the interlocutory decision. Counsel submitted that the
starting point is up to 45 years’ delay. That is identified by this Court as being something in itself that should be only the subject of a prosecution in rare circumstances. It has significant presumptive prejudice which attaches and, we say, significant features … which mean that this is a matter that should be determined prior to a very, very lengthy trial with many witnesses and a 78-year-old man, dealing with alleged events from the 1980s.
Counsel had submitted in writing that
the specific prejudices are magnified by the prosecution reliance on each charge (and a large number of uncharged acts relating to named and unnamed boys) as tendency evidence in support of the proof of each charge. The admission of tendency evidence may occasion prejudice in numerous ways.[60] Here, it creates a backdrop of significant risk that the jury will conclude guilt on disposition/propensity, or by giving undue weight to any tendency (even if proved), rather than by separate consideration of the strength of the proved facts of any charged incident. The graphic, confronting and cumulative effect of hearing evidence of each charged and uncharged act (of alleged offending against vulnerable children) gives rise to a risk of conclusions being drawn based on emotion or moral outrage. As the learned trial judge recognised during argument, there is a risk in this case that any jury would regard the applicant as a ‘predatory paedophile…and they don’t have to decide much else’.
[60]Hughes v The Queen (2017) 263 CLR 338, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ) (‘Hughes’).
On the charges the judge failed to stay, senior counsel for the applicant took the Court in painstaking detail to the evidence that was missing as a result of the delay in this case. We will review that evidence below.[61]
[61]From [61] onwards.

Respondent’s submissions

In written submissions, the respondent’s counsel submitted that the trial judge ‘correctly treated the test for certification as that contained in s 295(3)(b) of the [CPA] and the case of McDonald’.
Counsel submitted that the principles governing an application for a permanent stay are ‘well established’. They were set out in FJL and repeated in Hermanus. A permanent stay of serious criminal proceedings will only be ordered in exceptional cases; it is a remedy of last resort.[62] The applicant bears the onus of proving that a trial will be unfair or will involve such unfairness or oppression as to constitute an abuse of process. While the onus is the civil standard of the balance of probabilities, the onus is a heavy one and a stay of proceeding is only to be ordered in an exceptional case.[63] The applicant must show that the consequences of the delay are such that he (or she) cannot obtain a fair trial. Potential unfairness as a result of delay will not by itself justify a stay of the charge.
[62]Ballard, [40]–[48] (Priest JA, Walker JA and Croucher AJA agreeing).
[63]GLJ (2023) 97 ALJR 857, 867 [21] (Kiefel CJ, Gageler and Jagot JJ); Buchanan, [31].
Relying on certain observations in Buchanan,[64] while accepting that ‘the value of the lost opportunity must be assessed from the perspective of the defence’, the respondent’s counsel contended that a distinction must be drawn between loss of evidence as a result of delay and a loss of opportunity to obtain evidence. Unless a witness could have offered eyewitness or alibi evidence, the content of the putative witness’s evidence is speculative. Where the nature of lost evidence is speculative, it is less likely that any resulting unfairness will rise to the level of ‘unacceptable’. Any unfairness arising from presumptive prejudice will usually be capable of remedy by an appropriate direction to the jury.
[64]Buchanan, [33]–[36] (Emerton P, Whelan JA and Elliott AJA).
The respondent’s counsel commenced her oral submissions by contending that the trial judge ‘got it right’. He ‘did not commit any errors of law’ and he was correct not to grant a stay of the relevant charges. And she said this:
What I want to begin with is to bring to your attention the serious nature of these charges, not only that they're sexual offences, some of which are of different nature. Some of them are penetrative. Obviously those are the most serious. But these offences occurred in the context of children who were deaf or profoundly hearing impaired in an institutional situation and the allegation is that the person who committed these offences was a person in a high position within this educational institution. Either the vice principal or teacher in charge of the boarding house at the time of these specific instances and that's a matter that needs to be held in mind when applying what to do with the stay applicant.
After a member of the Court observed that ‘the seriousness of the allegations is not lost on the Court’, the respondent’s counsel continued:
Now, the test in relation to the evidence that’s been complained about being absent in this case, mainly records and people who possibly could say something about these incidents who are not available. The test the prosecution points to is that the evidence has to be shown to be … probably likely to assist the applicant’s case, not merely possible and that was the lynchpin which [the trial judge] made his decision upon and in my submission that is correct.
Counsel’s further oral submissions largely were responsive to factual matters, endeavouring to rebut the central contention advanced by the applicant that his trial would be unacceptably unfair. Counsel, quite properly, accepted that witnesses and documents were missing. Her submissions were directed to the importance of those witnesses and documents.

Principles that guide the grant or refusal of a permanent stay

The parties were largely in agreement concerning the principles that guide the decision whether to grant or refuse a permanent stay. As to those principles, in was said in Ballard[65] that
it is well settled that a court should stay criminal proceedings only if, having regard to all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if their continuation would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[66] In order to justify a permanent stay the circumstances must be exceptional,[67] a permanent stay being a measure of last resort.[68] There must be a fundamental defect going to the root of the trial of such a nature that nothing that the trial judge could do in the conduct of the trial could relieve against its unfair consequences.[69] To obtain a stay, an accused person must demonstrate that the circumstances are such that any trial necessarily will be unfair, so that a conviction would bring the administration of justice into disrepute.[70] The court must have regard to the substantial public interest in having those charged with serious criminal offences brought to trial as well as the fundamental right of an accused to a fair trial and the need to maintain public confidence in the administration of justice.[71] A court’s power to grant a permanent stay stems from the court’s inherent jurisdiction to protect the integrity of its processes where the administration of justice so requires.[72]
[65]Ballard (a pseudonym) v The King [2024] VSCA 26, [47] (Priest JA, Walker JA and Croucher AJA agreeing) (citations as in original). See also Porter (a pseudonym) v The King [2024] VSCA 127, [47] (Priest, Boyce and Kaye JJA).
[66]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ) (‘Walton’). See also Jago v District Court of New South Wales (1989) 168 CLR 23 (‘Jago’); R v Glennon (1992) 173 CLR 592; Dupas v The Queen (2010) 241 CLR 237 (‘Dupas’); R v Edwards (2009) 255 ALR 399 (‘Edwards’).
[67]Williams v Spautz (1992) 174 CLR 509, 529.
[68]Strickland (a pseudonym) v DPP (Cth) (2018) 266 CLR 325, 409 [248], 415 [264] (Edelman J); Tuteru, MVR 147, [65]. See also Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132, 141–2 [20]–[22] (Kiefel CJ, Gageler, Keane and Gordon JJ) (a non-criminal case).
[69]Barton v The Queen (1980) 147 CLR 75, 111 (Wilson J); Jago, 34 (Mason CJ); Dupas, [35]; Haris (a pseudonym) v The King [2023] VSCA 205, [49]–[50] (Emerton P, Beach and McLeish JJA) (‘Haris’).
[70]Jago, 34 (Mason CJ).
[71]Walton, 395–6; Tuteru, MVR 148, [69]; Haris, [53].
[72]Tuteru, MVR 147, [64].
And in Hermanus, it was observed:[73]
[73]Hermanus, 341–3 [39]–[40] (Priest JA, Maxwell P agreeing). (Citations as in original.)
Authority establishes that a court should stay an indictment if, in all the circumstances, the continuation of the proceedings would involve unacceptable injustice or unfairness, or if the continuation of the proceedings would be so unfairly and unjustifiably oppressive as to constitute an abuse of process.[74] A permanent stay will only be granted in circumstances which are rare or exceptional.[75]
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.[76]
·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.[77]
·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.[78] 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.[79]
·Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.[80]
·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.[81]
·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.[82]
[74]Walton v Gardiner (1993) 177 CLR 378 at 392 per Mason CJ, Deane and Dawson JJ. See also Jago ; R v Glennon (1992) 173 CLR 592; Dupas v R (2010) 241 CLR 237; R v Edwards (2009) 255 ALR 399; 83 ALJR 717 (‘Edwards’).
[75]Williams v Spautz (1992) 174 CLR 509 at 529; Jago at 31 per Mason CJ, 60 per Deane J, 76 per Gaudron J.
[76] FJL at 575, [17]. See also Jago at 61 per Deane J, 76 per Gaudron J.
[77]FJL at 575 [18]. See also Jago at 33–4 per Mason CJ); TS v R [2014] NSWCCA 174 at [1] per Leeming JA), [61]–[64] per Bellew J.
[78]FJL at 575 [19]. See also Jago at 61 per Deane J.
[79]FJL at 576 [21].
[80]FJL at 576 [22]. See also Edwards at ALR 403, [23]; ALJR 720.
[81]FJL at 576 [23]. See also Edwards at ALR 405 [31]; ALJR 722.
[82]FJL at 577 [25]–[26]. See also Jago at 47 per Brennan J, 77–8 per Gaudron J. See further, Bennett (a pseudonym) v The King [2025] VSCA 208, [138]–[149] (Orr and Boyce JJA), [225]–[228] (Kaye JA).

Discussion and analysis

The offending alleged in charges 1 to 3 (JH), 5 to 8 (both AM and AN) and 10 to 12 (AN), are all said to have occurred within the residence of the school (‘the residence charges’). Charge 4 (WK), charge 9 (AN) and charge 19 (QS) allege offending at the school (‘the school charges’). As we have said, the residence was located approximately 600 metres from the school.

The residence charges: Loss of evidence relevant to lack of opportunity

The residence charges embrace a period from 1 January 1980 to 20 June 1986, between 39 and 45 years ago.
There is no issue that the applicant was employed as the teacher in charge at the residence — as a result residing with his wife and children in a house attached to it — from 1978 or 1979 to the end of 1981 (or early 1982). The role of a teacher in charge was general administration, some hostel supervision time and school administration duties. Available evidence also suggests that the applicant covered his replacement’s leave for five weeks between 23 June and 26 July 1986.
The central issues in dispute in relation to the residence charges are whether — even when he was a teacher in charge — the applicant had any opportunity to have offended in the manner alleged, unnoticed by responsible adults who were employed to ensure the safety of the children at night and who (unlike the applicant) lived in rooms within the residence in close proximity to the shared dormitories; and whether, in the periods when the applicant was not employed in the role of teacher in charge, there was any opportunity for him to have been alone with any boy.
In his record of interview, the applicant told police that there were never fewer than five teachers minding the children. That claim appears to be largely uncontroverted.
Available records identify 17 adults who were employed to supervise the boys living at the residence between 1 January 1980 and 20 June 1986. That number included adults whose rooms were in close proximity to the dormitories. But only one of these adults, Margaret Weymouth, is a proposed witness in the trial. Of the remainder, they are either deceased; have health issues which render them incapable of giving evidence; were never contacted by the Informant; or were approached but have declined to provide a statement. Very significantly, shift records for the relevant period are no longer available.
Ms Weymouth, who had been employed as a hostel assistant at the residence, gave evidence before the trial judge on a hearing under s 198A of the CPA on 26 March 2025. Her evidence was that there were staff bedrooms located near the children’s dormitories in both the younger and older children’s areas of the residence. The purpose of this placement was to allow staff to listen out for the children and to hear what was going on in the bedrooms. Her evidence was that the doors of the staff bedroom and dormitory were left open at night. There were night-lights and light came in through the windows. She said that the staff were ‘extra vigilant’ and ‘were hired to look after the children’. There were two staff who slept in the area reserved for the younger children and one who slept in an area for the older children. Additionally, the school Principal, Gwen Rosengren, resided below the older children’s dormitory. There were six students in the junior boys’ room and approximately four in the senior room. Evidence suggested that the bedtime for the junior boys was either 7.30, 8.00 or 8.30 pm, and 8.30 pm for the senior boys.
The evidence is that Ms Weymouth lived at the residence between May 1983 and the end of 1986 (save for a period in the second half of 1985); that is, after charges 1, 2, 3, 5 and 6, and some years after the commencement dates of charges 7 and 8. Part of her role included supervising the children at bedtime. For some — perhaps all — of that period she resided in a room in close proximity to either the junior dormitory (for children aged five to 12 years) or the senior dormitory (for children aged around 13 to 16). Her evidence was that she saw the applicant there ‘very rarely’. He would leave before bedtime or at the time the students were going off to sleep. Ms Weymouth would go to her bedroom once the children were in bed.
In a ruling delivered on 11 April 2025, the trial judge ruled inadmissible evidence that, in a period before that embraced by the residence charges, there were staff rumours and suspicion about the applicant. Relevantly, however, the rumours and suspicion appear to have resulted in a practice — particularly so far as the female staff supervising the children at the residence were concerned — to ensure that the applicant was not left alone with boys. Indeed, in a statement made on 6 March 2025, Ms Weymouth said she specifically remembered that, on one occasion during ‘handover’, Edith Mayhew — who was employed in senior supervisory roles at the residence throughout the charged period — told her ‘not [to] let [the applicant] be alone with the boys’. Ms Mayhew is now deceased.
In light of the foregoing, we agree with the contention advanced by the applicant’s counsel that the absence from the applicant’s trial of almost all of the adult staff who were employed to watch the children during the period of the residence charges constitutes a very significant forensic prejudice. We disagree with the respondent’s submission that it is speculative to suggest that those staff would be important witnesses on the contested issue of opportunity in the trial of the residence charges. To our minds, the loss of evidence capable of establishing that the applicant did not have the opportunity to offend in the manner alleged — undetected by adults whose responsibility it was to care for and supervise the children — is very significant, and, in some respects, akin to the loss of evidence capable of supporting an alibi.
As the authorities make clear, the focus of attention in relation to unavailable evidence must be assessed from the defence perspective.[83] The applicant’s ‘defence’ to the residence charges is that he had no opportunity to be alone with the boys, and no opportunity to have offended against children in the manner alleged by the prosecution without adults responsible for their care being aware of that offending. Those matters go to the heart of the defence case. Viewed from that perspective, they cannot be considered to be peripheral or merely contextual.
[83]See McGee, [131]–[132].
It does not matter that the applicant cannot specify with certainty what the witnesses might have said. As was observed in Lucciano:[84]
The cases draw a distinction between the loss of evidence as a result of delay and the loss of the opportunity to obtain evidence.[85] In the latter case, the content of the evidence is a matter of speculation and by itself this may not constitute actual, as distinct from presumptive, prejudice. If so, it is more likely that a forensic disadvantage direction will be able to remedy the deficiency.[86]
However, even where it cannot be said what evidence witnesses would have given, their absence may still give rise to prejudicial unfairness. It is necessary to focus on the value of the lost opportunity, assessed from the perspective of the defence.[87] The cumulative effects of delay must be considered. So, Beach and Kyrou JJA explained in Morton:
It may be accepted that it cannot now be said with any precision what evidence the deceased individuals would have given if they were alive and the extent to which that evidence would have been exculpatory. It may also be accepted that an element of speculation is involved in discussing such evidence. However, the death of a large number of witnesses, some of whom would have been in a position to give highly probative evidence that was capable of supporting the applicant, has deprived him of important means of defending himself.[88]
This approach was approved and applied in McGee v The Queen.[89] In both cases, among other things, deceased family members lived in the house where offending was said to have taken place and could have given evidence about both the house itself and what they had seen and heard. Without knowing what the lost evidence might have been, it was plainly highly material. Taking all the circumstances into account, its loss went directly to the fairness of the trial.
[84]Lucciano, 539–40 [42]–[44] (McLeish, Niall and T Forrest JJA). (Citations as in original.)
[85]Jones v The Queen [2017] VSCA 111 at [69] (Whelan and Ferguson JJA and Kidd AJA); Kenny v The Queen [2018] VSCA 220 at [69] (Taylor AJA, Priest JA and Weinberg JA agreeing at [1] and [94]); Carson v Director of Public Prosecutions (Vic) [2019] VSCA 4 at [16], [18] (Maxwell P and T Forrest JA).
[86]Kenny v The Queen [2018] VSCA 220 at [72].
[87]McGee v The Queen [2020] VSCA 146 at [132] (Maxwell P, T Forrest and Weinberg JJA).
[88]Morton v The Queen (2020) 281 A Crim R 307 at [154].
[89]McGee v The Queen [2020] VSCA 146 at [145] (Maxwell P, T Forrest and Weinberg JJA).

As we have said, the absence from the applicant’s trial of almost all of the adult staff who were employed to watch the children during the period of the residence charges constitutes a very significant forensic prejudice. Without knowing precisely what their evidence might have been, it is likely that the putative evidence of the absent staff would have borne directly on the applicant’s lack of opportunity to offend against the complainants in the manner alleged, so much being of very significant importance to the applicant’s case. Taken cumulatively with a lack of records — which we discuss below when dealing with the individual charges[90] — we consider that the unavailability of staff to provide evidence will render the applicant’s trial unacceptably unfair.
[90]See, e.g., [88]–[89],

The residence charges: Ground 1(a) — Charge 1, JH

Charge 1 alleges offending between 1 January 1980 and 31 December 1980, a delay of 45 years.
JH alleges that, about half an hour after bedtime, he was asleep in a room in the junior dormitory with other boys when the applicant entered the room and removed his blanket. The applicant then grabbed JH’s head and put his penis in JH’s mouth whilst JH remained sitting up in bed. JH states he does not know how long this lasted. It was, however, a frequent occurrence. In a statement made on 30 November 2021, JH claimed that, for at least a year, the applicant came into his room and did the same to either him or the other boys in the room ‘almost every night’ (although in a s 198A examination on 8 March 2024 he could not remember the frequency).
Nothing other than tendency evidence supports JH’s account. Further, the allegations of ongoing offending against JH — and other uncharged acts involving other complainants — are being relied on by the prosecution as tendency evidence in support of each and every other charge. We agree with the oral submissions of the applicant’s senior counsel, that there is a real risk that, in circumstances where the allegations relating to charge 1 in isolation appear to be ‘relatively weak’, the jury will use the tendency evidence as a ‘gap filler’, no matter any directions they may be given by the trial judge. This was the kind of prejudice adverted to in Hughes, when it was said[91] that the jury
may fail to allow that a person who has a tendency to have a particular state of mind, or to act in a particular way, may not have had that state of mind, or may not have acted in that way, on the occasion in issue. Or the jury may underestimate the number of persons who share the tendency to have that state of mind or to act in that way. In either case the tendency evidence may be given disproportionate weight. In addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury’s emotional response to the tendency evidence. And prejudice may be occasioned by requiring an accused to answer a raft of uncharged conduct stretching back, perhaps, over many years.
[91]Hughes, 349 [17] (Kiefel CJ, Bell, Keane and Edelman JJ).
It is obvious that the other boys in the room — whose names JH says he cannot remember — are potential eyewitnesses. Self-evidently, they would be in a position to give evidence as to whether or not the applicant in fact entered the room with the frequency asserted by JH, over the sustained period of time he alleges, and offended in the manner claimed. It is no answer, as was advanced by the respondent, to suggest the hearing-impaired boys would have removed their hearing aids to sleep, and would not have heard what was occurring. In the absence of the identities of the boys, and their evidence, the suggestion that the boys removed their hearing-aids to sleep dwells in the realm of pure speculation, as does any supposed estimation concerning the actual extent of their hearing impairment. In any event, there is nothing to suggest that the boys’ eyesight was impaired, or that there was insufficient light for them to be able to see the kind of grossly conspicuous activity alleged.
Moreover, as we have mentioned, notwithstanding the proximity of staff to the dormitories, and further notwithstanding the practice to ensure that the applicant was not left alone with the boys, none of the staff responsible for ensuring the safety of the boys in 1980 to 1981 are to be called to give evidence as to whether there was any opportunity for the offending to have occurred.[92] JH’s position is that he cannot remember who the staff were on the occasions of the alleged offending, although he recalls Linda Robertson and Veronica Smillie were staff members at the time he boarded. Neither of those individuals are witnesses.
[92]Recalling that Ms Weymouth did not live at the residence at that time.
As a result, rather than having the ability to point to evidence that demonstrates the alleged offending was unlikely to have occurred unnoticed, or that it could not have occurred unnoticed, the applicant is left with a bare denial.
Additionally, the circumstances of JH’s complaint are the source of further prejudice to the applicant. JH did not complain to anyone for 40 years. Prior to him doing so, he received a text message from the Informant — JH said he did not know how she got his contact details — identifying herself as a sexual offences investigator, telling him that ‘multiple people’ have ‘come forward in relation to [the applicant]’. The text also informed him that the police had been told that JH may have ‘information’ with respect to the applicant and asked if anything happened ‘personally to [him]’.
Given the circumstances of the Informant’s contact, should the applicant seek to expose the danger of JH’s memory — 45 years after the alleged events — having been contaminated by police suggestion, he would be forced to reveal a belief by police — based on the apparent say-so of ‘multiple people’ — that JH was a victim of sexual offending by the applicant. That invidious forensic choice arises in the context of there having been other male adults who may have had unsupervised access to the junior dormitory at the relevant time (at least one of whom bore a resemblance to the applicant). Due to the passage of time, however, the applicant is unable to expose the circumstances of that access. The result is that, with the passage of 45 years, JH’s assertion that ‘it was [the applicant]’ cannot effectively be challenged.
It cannot be gainsaid that charge 1 is an allegation of serious offending. Given the concatenation of circumstances discussed above, however, we are of the view that any trial of the applicant on charge 1 will necessarily be unfair. We consider that there is nothing that the trial judge could do in the conduct of the trial to relieve against its unfair consequences. Indeed, any forensic disadvantage direction given in the applicant’s favour in an endeavour to ameliorate the prejudice will likely be diminished by an invitation to tendency reasoning.
The judge should have concluded that a permanent stay of proceedings on charge 1 was required.

The residence charges: Ground 1(b) — Charge 2 and 3, JH

Charges 2 and 3 relate to alleged activities between 13 March 1981 and 12 March 1982, a delay of 43 to 44 years.
JH made a first statement to police concerning the alleged circumstances of charge 1 on 30 November 2021, after being approached by the Informant. Almost two years after his complaint relating to charge 1 (and of various uncharged acts), JH made a second statement, dated 27 July 2023, in which he said that he ‘remembered a further incident that [the applicant] did to [him]’.
JH claimed that when he was 11 years old, he was lying on the bed in his room sleeping when the applicant entered. There was no-one else in the room. About an hour after JH had gone to bed, the applicant shook JH awake and then penetrated his mouth and anus with his penis, before ejaculating on JH’s back. JH claimed that the applicant slapped his back because he was ‘crying loud’. The applicant hit him so that he would ‘shut up’ because he was crying ‘really loudly’. During his evidence at the s 198A hearing some nine months later, JH confirmed that his statement was true and correct. Later in his evidence, however, he asserted that he was trying to cry loudly during the penetration but he was ‘holding it in himself’, and that afterwards he cried for a ‘fair while’. JH said this event could have occurred at any time when he was 11 years old. He said he cannot remember if he saw a doctor or nurse after the incident.
Other evidence establishes that the children slept in shared, not individual, bedrooms at the residence. Indeed, even JH said in evidence that there were ‘always other students’, albeit that he claimed that on that occasion of the alleged offending those he shared with were ‘away’, and he could not remember when they came back.
The evidence of Ms Weymouth is that there were records in the form of a book kept at the time — but now lost — which recorded ‘pretty much everything the kids did’, including what they did each afternoon; any medications that were taken; whether they had ‘physio’; if they had any medical appointments; whether they were taken to the hairdressers, or to buy uniforms or clothes; or whether there were ‘incidents of any kind’. During a ‘handover’ a staff member could look at the book, and, for purposes of the handover, see ‘what had been happening’. If a student was absent because of illness, that would be recorded in the book.
In light of Ms Weymouth’s evidence about the book, it might readily be inferred that, had JH’s roommates actually been absent at any point in the charged period, that absence would have been recorded. The lost records, and the unavailability of witnesses — including staff and the unidentified roommates — deprives the applicant of any ability to point to evidence supporting the essential ‘defence’ that there would have been no opportunity for the applicant to have been alone in that room at night with JH.
Quite clearly, the absence from the trial of those tasked with supervision of JH at the time of this alleged offending is even more significant in light of the evidence of his ‘loud crying’, which was so loud that the applicant slapped his back so he would ‘shut up’. Given Ms Weymouth’s evidence, it is unlikely that such an incident could have gone unnoticed by staff.
In our view, the absence from the trial of the records and the staff leads inexorably to the conclusion that any trial on charges 2 and 3 would be unacceptably unfair. The trial judge should have ordered a permanent stay on these charges.

The residence charges: Ground 3 — Charges 5 and 6, AM

The activities founding charges 5 and 6 are alleged to have occurred between 18 April 1981 and 17 April 1983, a delay of 42 to 44 years.
AM alleges when he was eight or nine years old he was asleep in a shared room in the junior dormitory at the residence when the applicant got into his bed and made AM touch the applicant’s penis and kissed him. According to AM, this also occurred on another occasion, that uncharged act being admitted as tendency evidence with respect to the charges relevant to each complainant.
Again, none of the staff responsible for ensuring the safety of the boys between April 1981 and April 1983 are being called to give evidence as to whether such offending could have occurred in light of the proximity of the staff to the dormitory and the practice of ensuring the applicant was not left alone with the boys. The observations set out above concerning the failure to call staff, and the unavailability of records, are relevant to this ground.[93]
[93]At [66]–[69].

Additionally, the available evidence appears to establish that a man with a similar appearance to the applicant — who is now deceased — commenced as a teacher in charge of the residence at the start of 1982. Minutes of staff meetings establish that the applicant’s role living at the residence ceased at the conclusion of 1981, and he was scheduled to move out at the start of January 1982. His replacement was a darkly-bearded man. A number of complainants purport to identify the applicant by reference to his beard. Given these matters, the breadth of the period alleged in the charges carries with it particular prejudice.
We agree with the oral submissions advanced by the applicant’s senior counsel that an aspect of the delay, and the way in which the complaints came about, is the inability to cross-examine effectively on identification. As counsel submitted, the dangers of a complainant having a fixed sense of who the offender was solidifies the more time that goes by, particularly when the complainant’s memory has been contaminated by suggestions as to the identity of the perpetrator. Experience shows that, when the cross-examiner suggests to a complainant in those circumstances that ‘you’ve got the wrong guy’, the answer is unlikely to be in the affirmative. The dangers associated with identification evidence are exacerbated when, as here, there is significant breadth in the charged period, in circumstances where there was someone else who might have been the culprit present for part of that period. The loss of staff and records, the effect of the effluxion of time on memory, and the very breadth of the charged period, hinders an effective defence being run.
Once more we consider that the combination of factors adumbrated relevant to charges 5 and 6 leads to the conclusion that a trial of the applicant on those charges will necessarily be unfair. We are of the opinion that there is nothing that the trial judge could do in the conduct of the trial to relieve against its unfair consequences.
The judge was incorrect to find that a permanent stay of proceedings on charges 5 and 6 was not required.

The residence charges: Ground 4(a) — Charges 7 and 8, AN

Charges 7 and 8 relate to a period between 21 June 1980 and 20 June 1983, some 42 to 45 years ago.
AN alleges that the applicant entered his room in the junior dormitory and got into bed beside him. He alleges the applicant exposed his penis, had AN touch it and forced it into AN’s mouth.
Unlike the case of other charges, AN identified others in the room. He said that AM and JH were in the room, as were two others, ‘JA’ (who is unavailable) and ‘AP’ (who is). AM does not, however, give an account of witnessing the applicant getting into AN’s bed.
No staff responsible for ensuring the safety of the boys between 21 June 1980 and 20 June 1983 are being called to give evidence, apart from Ms Weymouth who, as we have said, commenced her employment at the end of this period in May 1983. The observations set out above concerning the failure to call staff, and the unavailability of records, are relevant to this ground.[94]
[94]At [66]–[69] and [95].
Further, despite AN asserting that he did not tell anyone about the applicant’s predations until he complained to his social worker ‘Vanessa’ — who is not a witness — shortly after he was contacted by the police in 2021, the trial judge has ruled that the prosecution may lead evidence from AM and QS that AN complained to them, albeit that the complaint evidence is limited to credibility and not to truth.[95]
[95]See Evidence Act 2008, s 66(2).
Although AN has specifically disavowed any recollection of making a complaint of abuse to AM at the time they were both boarders at the residence, the effluxion of time necessarily means that the applicant is deprived of utilising AN’s evidence to demonstrate that no such complaint occurred (as opposed to one having been made but later forgotten). This factor is significant in light of the alleged complaint to ‘Vanessa’ having been made only after police provided information to AN that may have suggested to him that police believed him to be the victim of sexual offending by a teacher from the school in the 1970s and 1980s.
Despite the trial judge ruling that the ‘weakness’ of the complaint evidence will be addressed by permitting it to be admitted as relevant to ‘credibility and delay’, but not ‘to truth’, so much does not significantly ameliorate the prejudice attaching to the evidence. We agree with the applicant’s counsel that directions to the jury on the limited use that may be made of the evidence are likely to be ineffective, particularly in light of the directions to be given concerning the tendency evidence.
It may be acknowledged that the offending alleged against AN is serious offending. Given the combination of circumstances that bear on charges 7 and 8, however, we are of the view that any trial of the applicant on them will necessarily be unfair. Nothing that the trial judge could do in the conduct of the trial to relieve against its unfair consequences. Any attempt to alleviate the prejudice to the applicant will likely be undermined by an invitation to tendency reasoning.
We consider that the judge should have concluded that a permanent stay of proceedings on charges 7 and 8 was called for.

The residence charges: Ground 4(c) — Charges 10 to 12, AN

The alleged offending in charges 10, 11 and 12 is said to have occurred between 21 June 1983 and 20 June 1986, 39 to 42 years ago.
AN alleges penile-oral penetration and forced masturbation by the applicant in the senior boys’ bathroom of the residence at dinner time. The applicant told the police in his record of interview that he never went to the toilet with a child. AN claims that the offending made him late to dinner. He alleges that he told the applicant that they were late for dinner but the applicant told AN that he had told the other teachers he was meeting with AN.
Ms Weymouth’s evidence at the s 198A hearing was that dinner at the residence was always at 5.00 pm. She said that there was a small number of students, so that any missing child would be noticed. If a child were missing, staff — herself included — would have gone to find them.
In light of the practice that existed to keep a close watch on the applicant around the boys, it might be inferred that any occasion when a boy was missing at dinner while the applicant was at the residence would have been of concern; would have prompted a search without delay; and would have been memorable. Ms Weymouth was employed at the residence for all but six months of the charged period, but recalls no such occasion. The absence of other staff and the book referred to above,[96] coupled with the lack of specificity in dates, prevents the applicant from being able to point to evidence to establish that there was no opportunity for the alleged offending to have occurred (or, at least, create a reasonable doubt).
[96]See [88].
In the absence of the other witnesses, the prosecution will be able — and apparently intends — to argue that there were some dates in the three-year charge period when Ms Weymouth was not present.
It is also significant that AN said nothing of the incident in the bathroom when he made his police statement on 1 December 2021. The first he said of it was in a conference with the prosecution lawyers prior to giving evidence under s 198A of the CPA on 23 April 2024, more than two years later.
As with some of the other charges, charges 10 to 12 are allegations of serious offending. In the absence of staff and records, however, we consider that any trial of the applicant on these charges will necessarily be unfair, and that there is nothing that the trial judge could do in the conduct of the trial to relieve against the unfairness.
In the circumstances, the judge should have ordered a permanent stay of proceedings on charges 10, 11 and 12.

The school charges: Overview

As we have indicated, the applicant worked at the school from 1982 until its closure in 1991. He did not perform duties as a classroom teacher, but had various leadership positions, including as Vice-Principal. His role involved supervising students at TAFE and work placements, discipline and assisting with integration of students into mainstream schools. He was therefore often off campus.

The school charges: Ground 2 — Charge 4, WK

Charge 4 is alleged to have occurred between 18 July 1980 and 17 August 1981, a delay of 44 to 45 years.
WK alleges that his classroom teacher took him to the junior school principal’s office. The applicant there knelt in front of him and touched and squeezed his testicles, and rubbed his penis, over his clothing. They were behind a door that was open. WK alleges that a female teacher walked through the room while he was being touched. As the female teacher walked through, the applicant stopped touching WK but remained kneeling in front him.
WK gave evidence on a s 198A examination that the room has two doors. He described the teacher who walked through as a thin, blonde female member of staff. She walked through the room and into the staff-room which is on the other side of the door. According to WK, she walked quickly and did not stop and look. He accepted, however, that she may have glanced. Further, when she entered the staff-room, the door remained open and he did not see where she went. WK alleged that, at the point she entered the staff-room with the door remaining open, the applicant’s hands went back to his penis and testicles on the outside of his clothes for an estimated 10 minutes.
WK’s classroom teacher made a statement, dated 1 March 2023. It does not appear that she recalls the event described by WK.
Moreover, the female teacher who supposedly walked through the room is unidentified, and no records exist capable of establishing who she may have been. Whether or not the practice followed at the residence — to watch the applicant closely if he was on his own with a boy (or boys) — was followed at the school, an observation that the applicant was kneeling in front of a boy would very likely provoke inquiry from other staff. The relevance of the unidentified teacher walking through a room in which the applicant was kneeling in front of a boy therefore assumes some significance.
In his record of interview with police, the applicant denied ever standing in for the Principal, and he explained the circumstances in which he would otherwise be in the Principal’s office. The Principal at the time was Gwen Rosengren, who lived at the residence. The police spoke to her on 29 November 2021 but did not obtain a statement. Ms Rosengren told the Informant in a phone call that she had no memory of the applicant ‘doing anything wrong’, so that the Informant made a note that she was therefore of ‘nil value for statement’. Subsequently, Ms Rosengren died.
Of some importance, WK complained to police in 2006 that the applicant had rubbed his genitals while they were in the applicant’s office between 1980 and 1981. The Applicant was not charged with this alleged offending, however, until 9 March 2023. The Informant was completely unable to explain this 19-year delay. It should be noted in that regard that Ms Rosengren did not die until more than 15 years after WK made his first complaint to police. Significantly, at the time of the alleged offending, Ms Rosengren was in charge of staffing. Presumably, had she been asked 19 years ago — or, for that matter, any time in the intervening period before she died — to identify a thin, blonde female teacher who was employed at the school at the relevant time she would have been capable of doing so. That now cannot be done.
Not only was there a delay of 44 to 45 years since the alleged offending, but there was a 19 year delay from the complaint to police to the present. That second period of delay was not satisfactorily explained. As a result of police inaction, Ms Rosengren, who could have been expected to shed light on who the thin blonde female teacher was (or might have been), died without the prosecution obtaining highly relevant evidence from her. And we note that, upon the hearing in this Court, we were informed by counsel for the respondent that no other attempt has been made to try and discover the identity of the thin, blonde staff member.
The judge should have permanently stayed charge 4. In the circumstances, important evidence was lost, including by police inaction. Any trial of the applicant on charge 4 would thus be unacceptably unfair.

The school charges: Ground 4(b) — Charge 9, AN

Charge 9 relates to a period between 21 June 1979 and 20 June 1984. The delay is 41 to 46 years.
AN alleges that he was in the junior school sick-bay after he fell and broke his arm in the playground. He alleged that the applicant entered the sick bay and put his erect penis into his mouth and AN licked it. This activity ceased when an unidentified staff member ‘yelled out’ for the applicant while the alleged offending was occurring. During his evidence at a s 198A hearing, AN said he could not remember whether the staff member yelled out or came into the room. AN did not identify the staff member. He said that later that day he went to a hospital in Geelong on account of his broken wrist.
Paul Hills, who was a teacher at the school between 1989 and 1991, gave evidence at a s 198A hearing that there was a window in the door of the sick-bay in the junior school which permitted anyone walking past to see in (albeit that there are others who say they cannot remember, and some who say there was no window). Records no longer exist which might confirm the existence of the window. In circumstances where the prosecution case on charge 9 is significantly weakened if there was a window — so that anyone walking past could see into the sick-bay — the prosecution has not accepted that there was a window (albeit during the hearing in this Court the respondent’s counsel suggested that the prosecution might be able to concede the point).
No records have been produced to establish AN’s attendance at the hospital. The applicant faces an extraordinary five year ‘between dates’ charge in relation to this alleged offending. If the staffing records from school still existed, and the hospital records were produced, then staff in the vicinity of the sick bay — including those with an ability to look through the sick bay window — could have been identified. The applicant would have been able to point to evidence that the graphic offending alleged was not just unlikely to have occurred, but that it could not have occurred without detection. Further, it might also have been possible to narrow down the identity of any teacher who might have yelled out.
Given the unavailability of relevant records, and the concomitant inability to identify relevant witnesses, we consider that a trial of the applicant on charge 9 would be unacceptably unfair.
The judge should have ordered a permanent stay of proceedings on charge 9.

The school charges: Ground 6 — Charge 19, QS

The offending in charge 19 is alleged to have occurred between 25 October 1988 and 25 October 1989, a delay of 36 to 37 years.
QS alleges that he hurt his arm at lunch and the applicant took him to the senior school sick-bay. The applicant kissed QS, then blew air onto his neck.
As is the case with a number of other complainants, QS made a complaint to police in response to a text from the Informant which may have suggested to him that police believed he was a victim of the applicant’s abuse.
On any view, the allegations forming the basis of charge 19 cannot properly be characterised as serious offending. Counsel for the respondent accepted that charge 19 is on the indictment only for its ‘tendency value’.
In our view, the presumptive prejudice attaching to a delay of 36 to 37 years for such relatively minor offending, coupled with the prejudice occasioned by the loss of records, should have led the judge to order a permanent stay of this charge.

Conclusion

For the reasons discussed, we consider that the continuation of proceedings on charges 1 to 12 and 19 would involve unacceptable unfairness to the applicant as to constitute an abuse of process. Any trial on those charges would be unacceptably unfair, because the unfairness to the applicant flowing from the lost evidence could not be cured by directions to the jury.
We note finally that, apart from the ‘general directions’ provided for in the Jury Directions Act 2015 (‘JDA’) which must be given, on any trial of the applicant the JDA would require the judge to give directions — many of which are complex (if not convoluted) — on:
(a)other misconduct evidence (ss 25 to 29);
(b)unreliable evidence (ss 31 to 33);
(c)perhaps on identification evidence (ss 35 and 36);
(d)delay and forensic disadvantage (ss 38 and 39);
(e)perhaps the prosecution’s failure to call witnesses (s 43);
(f)previous representations (ss 44A to 44D);
(g)doubts regarding the truthfulness or reliability of a complainant’s evidence (s 44F);
(h)delay and the credibility of a complainant’s account (ss 48 to 52);
(i)differences in a complainant’s account (ss 54A to 54C); and
(j)perhaps as to a complainant’s emotional state when giving evidence (ss 54I to 54K).
In addition, when giving directions on tendency evidence — ‘other misconduct evidence’ — the judge would have to direct the jury on the permissible uses, and non-misuse, of the evidence. In circumstances where some of the tendency evidence has been admitted ‘across the board’, and some in a more limited fashion, that task would be extremely difficult. It would also be extremely difficult for the jury to understand, and properly apply, the plethora of directions that will be necessary.

Proposed orders

For the foregoing reasons, we would grant leave to appeal against the interlocutory decision and allow the appeal. We would set aside that part of the trial judge’s order in which he refused a permanent stay of proceedings on charges 1 to 12 and 19. In lieu, we would order that proceedings on those charges be permanently stayed.

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[2025] VSCA 215

11 September 2025