[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.
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).
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Canning (a pseudonym) v The King [2025] VSCA 215
Case
[2025] VSCA 215
Decision Date
CaseChat Overview and Summary
The matter of Canning (a pseudonym) v The King involved an interlocutory appeal against the refusal of the trial judge to certify a question for appeal. The applicant, Canning, was charged with various historical sexual offences involving five complainants who were his students. The alleged offences occurred between 36 to 46 years prior to the trial, with all witnesses now deceased and documentary evidence lost. The trial judge had refused to grant a permanent stay of proceedings and subsequently denied certification for an interlocutory appeal. The appeal centred on the trial judge's refusal to certify the question of law for appeal under the Criminal Procedure Act 2009.
The primary legal issue before the court was whether the trial judge erred in refusing to certify the question of law regarding the applicability of the provisions of the Criminal Procedure Act 2009 that allow for a permanent stay in cases where the delay in prosecution has caused substantial unfairness to the accused. The applicant argued that the significant delay, coupled with the death of all witnesses and loss of documentary evidence, rendered a fair trial impossible. The court had to determine if these factors warranted a permanent stay and whether the trial judge's decision not to certify the question was correct.
The court found that the trial judge had indeed erred in refusing to certify the question for appeal. The significant delay in prosecution, the death of all witnesses, and the loss of documentary evidence created substantial unfairness to the accused, justifying a permanent stay. The court emphasised that the unfairness was not merely theoretical but substantial, meeting the threshold required by the Criminal Procedure Act 2009. Consequently, the appeal was allowed, and a permanent stay was ordered. This decision underscored the importance of considering the cumulative impact of delay, witness death, and lost evidence when assessing the fairness of proceeding with a criminal trial.