Director of Public Prosecutions v Sannen

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-21-00605

THE DIRECTOR OF PUBLIC PROSECUTIONS	Plaintiff
v
TOM SANNEN	Defendant

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JUDGE:	Lyon
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2021
DATE OF RULING:	13 August 2021
CASE MAY BE CITED AS:	DPP v Sannen
MEDIUM NEUTRAL CITATION:	[2021] VCC 1232

RULING

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Subject:Criminal Law
Catchwords:
Legislation Cited:  Jury Directions Act 2015
Cases Cited:Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (1989) 168 CLR 23; Hermanus (a Pseudonym) v R (2015) 44 VR 335; Green v The Queen [2017] VSCA 277; McGee (a pseudonym) v R [2020] VSCA 146; R v Smith [1995] 1 VR 10; Snyder (a pseudonym) v R [2021] VSCA 96
Ruling:  Application for permanent stay of proceedings granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Jennifer McGarvie	Office of Public Prosecutions
For the Defendant	Gordon Chisholm	RA Criminal Legal

HIS HONOUR:

Tom Sannen is charged on indictment with offences of kidnap, indecent assault, rape and the alternative charge of sexual penetration of a child under 16 years. He is pleading not guilty to these offences.
Mr Sannen has made an application to permanently stay the proceedings.
I shall briefly set out the factual allegations before outlining the issues underpinning the application.

Facts

Eleanor Torres[1] was born in January 1973. At the time of the alleged offending, she was 15 years old.
[1] A pseudonym.
On 22 April 1988 at 11.58pm, Ms Torres spoke to, and made a written statement to police; making a complaint of rape.
Ms Torres reported that on 21 April 1988 at approximately 8.30pm to 9.00pm, she and a friend, Molly Anderson[2], arrived at the Grand Hotel in Frankston. Ms Torres consumed three alcoholic drinks.
[2] A pseudonym.
Sometime after approximately 11 pm, Ms Torres left the Hotel and was waiting on Davey Street for her friend. She was approached by an unknown male who said that he would give her a lift home. After Ms Torres refused, the male grabbed her and dragged her into his vehicle. The male drove to a carpark near the boat ramp at Oliver's Hill and Frankston Beach. The male told her, “I’m not going to hurt you. If you don't shut up, I'll hurt you” and “I don't want to have sex with you I just want to touch you”. The complainant told the accused that she was “only 15”. The male replied, “It’s okay, I’m only 18”.
The male tried to reach over and kiss Ms Torres, then caused her seat to recline. The male pulled the complainant's skirt up to her waist. He touched her breasts on the outside of her clothes and then put his hand inside Ms Torres’s pantyhose and underwear, and inserted his fingers inside her vagina. The male then said, “I'll hurt you if I have to” and pulled her pantyhose and underwear down. The male removed his jeans and underwear and climbed on top of her. As she was struggling, Ms Torres’s leg it hit the stereo button causing the volume to be turned up. The male quickly moved back into the driver's seat and turned down the radio.
The male got out of the car, grabbed Ms Torres’s arm and dragged her out of the car towards the beach. The male pushed her onto the sand and put his penis inside her vagina. The man then stopped, stood up and apologised to her. They returned to the car and the male drove her to her friend Jonah Blackwell’s[3] house.
[3] A pseudonym.
On 22 April 1988, Ms Torres underwent a medical examination conducted by Dr Kenneth Ball. Clothing and medical exhibits, including vaginal and urethral swabs, were taken.
The police investigation remained unsolved and no suspect was identified until 25 July 2018. On that date, the DNA Management Unit at the Forensic Services Department notified the Cold Case Sexual Crime Squad that a DNA profile obtained from the vaginal swab (Item 2) matched to the accused’s DNA profile (from a database). The accused was nominated as a suspect. The accused was aged 23 years at the time of the alleged offending.
On 19 March 2019, the accused provided police with a DNA sample.
The DNA analysis concluded (using shorthand) that the sperm fraction recovered from the vaginal and urethral swabs provide extremely strong support for the proposition that the accused is a contributor.
When interviewed by police, the accused made a no comment record of interview.

The State of the Evidence

Ms Torres made a statement to police dated 22 April 1988, but never gave evidence or was cross-examined on that statement. Ms Torres died in 1993.
Ms Torres’s then boyfriend, Jonah Blackwell, told police in 2019 that Ms Torres constantly argued with her mother after this incident. He stated that Ms Torres’s mother did not believe her complaint of rape. Mr Blackwell stated that after Ms Torres made the complaint of rape, she grew increasingly estranged from her mother. Both of her parents are now deceased.
The medical practitioner who examined Ms Torres, Dr Kenneth Ball, gave evidence in 2019 that the notes of the examination were made by him. Dr Ball has since developed dementia and would not be fit to give evidence at trial.
Ms Torres’s friend Molly Anderson first made a statement to police in 2019.
No statements were taken from Ms Anderson’ then boyfriend (who Ms Torres told police she spoke to outside the hotel while she was waiting), hotel staff or hotel security. No enquiry was made as to whether CCTV cameras existed, or relevantly, captured footage.
On the night of 21 April 1988, Ms Torres went to her boyfriend, Jonah Blackwell’s, house. She complained of rape first to his father, Mark Blackwell[4], then to Jonah Blackwell, and then to the police officer who took her statement. There is some indication in the police notes that Mark Blackwell made a statement to police around that time, however any statement is lost. Mark Blackwell and Jonah Blackwell made statements of Ms Torres’s complaint to police in 2018 and 2019 respectively; that is, after the accused became a suspect.
[4] A pseudonym.
The investigating police and the police officer who took the complainant’s statement have no specific memories of dealing with this matter. The officer who took the statement agreed that:
a. There were variations between her notes of the events described to her by the complainant and the statement signed by the complainant; and
b. That at times she paraphrased what Ms Torres told her.
The prosecution case for trial is that Ms Torres was kidnapped, assaulted and raped/sexually penetrated by a (then) unknown offender.
The Crown seeks to prove its case by:
a.     Tendering the police statement taken by Senior Constable Vermeij (now Bull) from Eleanor Torres as the evidence of the sexual offending;
b.     Tendering the notes and evidence of Dr Kenneth Ball as the evidence of the physical examination confirming the occurrence of sexual penetration;
c.   Calling evidence of background to the night in question, the complainant’s distress and complaint from witnesses Molly Anderson, Mark Blackwell and Jonah Blackwell; and
d.     Calling police witnesses and evidence of taking the statement from Ms Torres; and
e.     DNA evidence to prove that the accused sexually penetrated Ms Torres on 21 April 1988.
The defence submits that although it may be proved that the accused sexually penetrated Ms Torres, the issue of consent remains a live and real consideration for a jury.

Submissions for a stay

Mr Chisholm, who appears for Mr Sannen, submitted that the proceedings should be permanently stayed because either:
a. The proceedings are foredoomed to fail; or
b. The intended trial can only be conducted in a manner which is so unfair that the only cure is to stay the indictment.
Ms McGarvie, who prosecuted this matter on behalf of the Crown, submitted that on proper application of the principles relating to the stay of proceedings, it cannot be concluded that these proceedings are ‘doomed to fail’. Secondly, Ms McGarvie submits the difficulties raised by the defence are amenable to judicial direction; thereby rendering the trial safe to proceed.
I shall first consider the principles to be applied in considering whether to stay these proceedings.

Principles to be Applied

In Walton v Gardiner, Mason CJ, Dean and Dawson JJ observed:
[T]he question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.[5]
[5] Walton v Gardiner (1993) 177 CLR 378, 395.
In Walton, the majority outlined the broad power of a court to stay its proceedings:
The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail... Again, proceedings within the jurisdiction of a court will be unjustifiably oppressive and vexatious of an objecting defendant, and will constitute an abuse of process, if that court is, in all the circumstances of the particular case, a clearly inappropriate forum to entertain them... Yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings.[6]
[6] Walton v Gardiner (1993) 177 CLR 378, 393.
In Jago v District Court of NSW, Brennan J stated (at [47]):
Obstacles in the way of a fair trial are often encountered in administrating criminal justice…the death or unavailability of a witness, may present obstacles to a fair trial; but they do not cause the proceedings to be permanently stayed… When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice which the accused might otherwise suffer.[7]
[7] (1989) 168 CLR 23.
In Hermanus v R, Priest JA (at [40]) succinctly encapsulated the principles which govern whether to grant a stay in the case of long delays:
First, the exercise of the power to stay must be exceptional since it results in effect in a refusal to exercise jurisdiction. The primary responsibility for deciding whether criminal proceedings should be maintained lies with the Executive and not with the Court.
Secondly, in cases involving delay, to justify a permanent stay of criminal proceedings there must be a fundamental defect which goes to the root of the trial of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences. The accused must demonstrate that the delay is such that any trial is necessarily unfair so that any conviction would bring the administration of justice into disrepute.
Thirdly, circumstances that the court should consider in determining an application for a stay include, the length of the delay; reasons given by the prosecution to explain or justify the delay; the accused’s responsibility for and past attitude to the delay; proven or likely prejudice to the accused; and the public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime. The critical factors are on the one hand the proven or likely prejudice to the accused, and on the other, the public interest in the prosecution and conviction of the guilty.
Fourthly, in order to justify a stay, it is the probability of unacceptable unfairness — rather than the possibility — that is critical.
Fifthly, a trial will not necessarily be unacceptably unfair even where relevant documents, recordings or other kinds of evidence have been lost or destroyed, or witnesses have died, so that the jury will be called upon to determine issues of fact on less than all of the relevant material which might bear upon the issues thrown up for determination.
Sixthly, the trial judge may avoid obstacles to a fair trial by evidentiary rulings — including by the exclusion of evidence which is technically admissible, but which might operate unfairly against the accused — and by directions to the jury designed to counteract any prejudice that the accused might otherwise suffer.[8]
[8] Hermanus (a Pseudonym) v R (2015) 44 VR 335.
I have also read and considered the principles in the Victorian Court of Appeal case of Green.[9] In that case, the Court of Appeal granted a permanent stay where the concatenation of factors was held to constitute an actual and fundamental unfairness which went to the root of the proceedings, and which could not be remedied by rulings or directions given by the trial judge.
[9] Green v The Queen [2017] VSCA 277.
In McGee [2020] VSCA 146, [132], [140], the Court of Appeal stated that the court must perform the exercise of considering the significance of lost evidence from the perspective of the defence. Where the main argument in favour of a stay is the unavailability of important witnesses, it must be shown that the witnesses would probably have materially assisted the defence case.

Doomed to Fail?

In his oral submissions before me (supplementing the outline of submissions filed on behalf of the defence), Mr Chisholm essentially submitted that the trial judge would be required to give such stringent directions to the jury on the use and dangers of the evidence presented before it, that the prosecution case was foredoomed to fail.
In my view, the essence of the defence argument in this respect is not so much based upon an analysis of whether the prosecution case could succeed but an analysis of whether it would or ought to succeed.
Ms McGarvie referred to the case of R v Smith [1995] 1 VR 10. In that case, Brooking J (at 15), in considering a stay of proceedings sought on the basis that the charge or charges were foredoomed to fail, drew a distinction between:
a. Criminal proceedings which are doomed to fail because on the undisputed facts, the Crown has no evidence whatsoever which might go towards proving some essential element of the offence; and
b. Criminal proceedings where it is contended that the evidence relied upon by the Crown to prove some essential element of the offence is not sufficient to enable a jury to be satisfied beyond reasonable doubt.
His Honour then stated (at 16):
It may be…that in a quite exceptional case, where it was plain beyond argument that there was no evidence available of some essential element of the crime, a trial judge, being satisfied of this at the outset could properly determine that the prosecution should be stayed as an abuse of process.
In making this assessment, I must take the Crown case at its highest; that is, that the jury receive and accept:
a.     the police statement outlining Ms Torres’s narrative of the circumstances surrounding, and then relating to, the allegations of offending;
b.     the evidence of Ms Torres’s distress and complaint on the night;
c.   the medical examination; and
d.     the DNA evidence.
I must also assume that the jury will consider the evidence in light of the directions I would be obliged to give; especially relating to forensic disadvantage.
When I consider the evidence and those directions, I am not persuaded that the Crown has “no evidence available of some essential element of the crime”[10].
[10] R v Smith [1995] 1 VR 10
In this way, I am not persuaded that the proceedings are foredoomed to fail.
This aspect of the application to stay the proceedings must be rejected.

Unfairness Going to the Root of the Proceeding

Mr Chisholm then submitted that the essential unfairness which goes to the root of the proceeding focuses on the element of consent in both the charge of rape and the alternative charge of sexual penetration of a child under 16 (as it was formulated at the time of the offending).
In essence, he submits that the issue of consent turns on the evidence of the complainant. The jury would ordinarily make an assessment of the complainant, each of the facts asserted by the complainant, and the complainant’s evidence. In this case, the evidence of recent complaint and distress is not evidence independent of the complainant. The jury have only the narrative of the complainant, as it was written down by the police officer. The police witnesses are unable to give any significant detail about the complainant or about the actual circumstances (as opposed to evidence of routine process) by which these statements were taken. The jury would not have any opportunity to assess the credibility or reliability of the complainant’s account.
Mr Chisholm further submitted that this essential unfairness was compounded by the loss of the following opportunities; with no ability to examine:
a.    The circumstances of the alleged offending through the evidence of the complainant, hotel staff and/or security guards, or CCTV footage;
b.    Dr Ball regarding the medical examination of the complainant;
c.    Potentially contradicting evidence from the complainant’s parents,
d.    staff or security guards at the hotel and whether CCTV footage was available;
e.    Ms Anderson’ then boyfriend, who spoke to Ms Torres outside the hotel whilst she waited for her friend.
Mr Chisholm submitted there is a forensic disadvantage in cross-examining the witnesses Molly Anderson, Mark Blackwell and Jonah Blackwell who gave their accounts 30 years after the event. Nor can their accounts be compared and contrasted in any meaningful way with that of the complainant.
Following from this, he submits that the accused is disadvantaged where more than one person was present for a conversation, such as conversations with the police medical examiner or the complainant’s parents, and the other person has no recollection of the event (such as the police), or is unable to be examined (the forensic medical practitioner) or are deceased themselves (Ms Torres’s parents).
Finally in this respect, Mr Chisholm submitted that the conduct of the proceedings in this way inexorably causes a shifting of the burden of proof on to the accused:
a.    The complainant’s evidence cannot be effectively challenged or tested as other witnesses cannot recall the circumstances of their conversations with the complainant;
b.    The differences between the accounts given by the complainant to the police can only be given limited weight;
c.    The judicial direction on the accused’s right to silence is less meaningful where the complainant’s factual version remains unchallenged. The accused may make a simple denial but may feel compelled to give evidence before a jury because the complainant’s version is by its very nature unchallenged. In giving evidence, the accused’s evidence would be subject to attack by the prosecution and scrutiny by the jury in a manner which cannot be done by the defence on the complainant’s evidence.
Ms McGarvie acknowledges there is prejudice to the accused by the inability to cross-examine the complainant at all. The Crown also acknowledges the accused suffers a forensic disadvantage due to the period between the allegations and trial.

Nevertheless, the Crown submits that the forensic disadvantage can be substantially ameliorated by a significant forensic disadvantage direction pursuant to the Jury Directions Act.
Ms McGarvie referred to Snyder [2021] VSCA 96, where an application for permanent stay was refused. In that case, the alleged offending occurred in 1993 to 1994, charges were not laid until 2018 and the complainant died prior to trial. The complainant was cross-examined at committal but “meaningful cross-examination” had not occurred.
The Court in Snyder held that the complainant’s absence and the introduction into evidence of her statement and committal evidence was “amenable to acceptable amelioration by appropriately firm judicial directions”. The Court further stated at [71] – [72], then at [82]:
… As a minimum, the judge will need to direct the jury as to the differences between cross-examination at committal and at trial, and instruct the jury to take into account the disadvantages flowing to the defence from the incapacity of counsel at trial to now ‘put’ the defence case and matters is important to it.
…
Furthermore, adding delay to the other matters relied upon to establish that there is prejudice to the applicant’s case, we are unable to see that the continuation of the proceedings would involve unacceptable injustice or unfairness, or would be so unfairly and unjustifiably oppressive as to constitute an abuse of process. There is nothing rare or exceptional about the circumstances of this case. Hence, the judge would have erred had he acceded to the application to grant a permanent stay.
Ms McGarvie submitted that the circumstances in Snyder are applicable and should lead to the conclusion that this case does not involve unacceptable injustice or unfairness which cannot be relieved by appropriate judicial directions.
Finally in this respect, Ms McGarvie submitted that there is a great public interest in the accused being brought to trial on extremely serious charges. Unfairness to the accused is not the only factor for consideration.

Analysis

Priest JA’s statement of principles in Hermanus provides the primary framework for my determination in this case.
The first principle is that the exercise of the power to stay a proceeding must be exceptional. In this respect, neither the prosecution nor the defence have been able to find a case which has proceeded to trial, let alone verdict, where the principal evidence consists of reading in the complainant’s police statement. The circumstances in which the Crown proposes to proceed to trial appear to be unprecedented.
I recognise that this circumstance alone will not justify the exercise of a power to stay the proceedings. Circumstances may be unprecedented without being necessarily unfair. It does however indicate that the circumstances must be carefully scrutinised.
Next, I must be satisfied that the fundamental defect (which in this case is submitted to be actual unfairness to the accused) goes to the root of the trial and cannot be relieved by either rulings, directions, or both.
The factors which are submitted to constitute a fundamental defect must each be carefully scrutinised; individually and together. These factors must also be balanced against the public interest and the desirability of the conviction of the guilty on serious charges. This is the crucial consideration: is the prejudice to the accused so fundamental that it is not amenable to judicial intervention? Does the defect submitted outweigh the public interest and trial of serious offences, and the conviction of persons found guilty of those offences?
In determining these questions, I must be satisfied of the probability and not merely the possibility of unacceptable unfairness. It is a question of would the accused suffer prejudice; not could the accused suffer prejudice.
I am mindful of the fact that unfairness will not arise simply because documents are destroyed, or witnesses have died, so that a jury must determine the issue(s) on less than all of the relevant material.
Finally, as I have already pointed out, I must keep firmly in mind the ability to make rulings and/or to give judicial directions to ensure the fairness of the trial process.
The Crown case for guilt is that Eleanor Torres told police she could not identify the offender who took her away in his car, and sexually assaulted and sexually penetrated her without her consent. This narrative was given by way of a clear account to police within hours of the occurrence of the events.
The defence case essentially admits that the accused sexually penetrated the complainant but raises the issue of consent. The Crown bears the onus of proof, but cannot prove consent; or at least not without unfairness which cannot be appropriately remedied.
It is a fundamental tenet of the criminal law that the Crown bears the onus of proving its case; and it must do so beyond reasonable doubt. The Crown proved its case by calling evidence in support of each of the elements of the offence charged.
In this case, the statement made by Eleanor Torres to police officers effectively states, ‘I did not consent’ on the charges of sexual assault and rape; and “I stated ‘I’m only 15’ and ‘I did not consent’” on the charge of sexual penetration.
These statements were made to police who cannot now recall whether the statements were actually made verbatim, or whether those statements (for example as to age) were made in the sequence recorded in the statement.
Ms Torres died whilst she was still a teenager. The police investigation was unresolved in her lifetime. The matter never proceeded to prosecution while she was alive. She never gave evidence at a committal proceeding to affirm or swear so much as ‘my statement is true and correct’.
In these circumstances, the issue of consent has not been tested and cannot be challenged. When examined in the trial context, there is no witness to whom the challenge or contradiction can be put in cross examination. In fact, apart from eliciting from the police officer(s) who took the statement that they have no memory of this event, it is difficult to see a meaningful question about the circumstances of the alleged offending which could be put in cross examination.
Put simply, there is no person, circumstance or other piece of evidence by which the credibility and/or reliability of these statements can be compared and contrasted.
Nor is this scenario entirely comparable to that in Snyder. Although the cross-examination in Snyder was not meaningful or effective, the complainant in that case had sworn that her statement was true and correct, and the accused had been afforded the opportunity (even if squandered) to cross examine. No such opportunity has ever existed in this case.
The result is that if the complainant’s statements are produced in evidence, the assertions I have referred to in [66] above stand as indisputable evidence of the element of consent in respect to both the charge of rape and its alternative.
A trial judge could direct the jury that the assertions had not been subject to cross-examination; that is, testing and challenging the complainant’s account. However, at the close of the prosecution case, the only evidence available to the jury on the elements of consent and age would be those very statements. Even with warnings, the jury would have no means to assess the maker of those statements, or to (I repeat) compare, contrast or to test the credibility and / or reliability of the statements.
In reality, there are no means by which a reasonable doubt could be held.
I consider that this conclusion is also underpinned by the lack of ability to test the broader circumstances – by this, I refer to the matters in [16] – [21] above.
In my view, the presentation of evidence in this manner does not simply amount to a strong Crown case which might lead to a forensic decision for the defence to call evidence. Rather, it constitutes an unassailable Crown case which, rationally and reasonably, can only be challenged by the accused giving evidence. I can only reasonably conclude that a Crown case which meets all of the elements of the offences charged, and which cannot be tested by cross examination, must also have the effect of shifting the burden of proving reasonable doubt to the accused.
I have considered the direction a trial judge would be obliged to give if the accused did not give evidence. In my view, such a direction could not reasonably ameliorate the unfairness to an accused from a case presented in this manner.
Then, as Mr Chisholm submitted, if the accused gives evidence, the accused would be subjected to testing by cross examination and scrutiny; unlike the critical aspects of the Crown case. The trial judge would be obliged to direct the jury on the fact that the accused had given evidence. Such a direction may ameliorate the prejudice to an accused. But the point remains, the decision to give evidence in these circumstances does not result so much from a forensic decision as a shifting of the burden because of the manner in which the Crown case was presented.
I appreciate that the death of a witness will not of itself permit the stay of proceedings. Ms Torres was a witness in the sense that she described events to police. She has never been a witness in the sense that she has ever affirmed or sworn her account (I appreciate her statement has a jurat attached), let alone been cross-examined upon it. As I have already stated, I consider the circumstances of this case to be different to those in Snyder.
I am not persuaded that the evidence of Molly Anderson, Mark Blackwell and Jonah Blackwell constitutes unfairness. Whilst the accused may be put at forensic disadvantage by the fact that their evidence was only collected and given some 30 years after the events they were called upon to recollect, (and the Mark Blackwell contemporaneous statement was lost) they still remain amenable to cross examination and to appropriate judicial direction. I therefore exclude this aspect of the submissions from my consideration of whether it is appropriate to grant a stay of these proceedings.
I am also not persuaded by the fact that there is no evidence of hotel staff, security guards or CCTV footage. As the Court of Appeal has stated, a stay will not be granted simply on the basis that the jury is presented with less than all of what might have been the relevant information. In this case, it cannot be said whether anything else probative would have turned up or not. In other words, Mr Chisholm can only speculate in this respect. It is not suggested that known probative evidence has been ignored or lost.
I recognise that there is a substantial public interest in the prosecution of serious offences. The offences alleged here are indeed very serious. They are no less so for the fact that Ms Torres died many years ago. The difficulty in this case, however, is the manner in which the prosecution intends to proceed.
I therefore conclude as follows:
a.    The exercise of the power to stay proceedings must be exercised only in exceptional circumstances. The circumstances of this case are not only unprecedented, but as I have endeavoured to explain, are exceptional and justify the power to stay the proceedings in these circumstances.
b.    Although the unfairness manifests in the delay of 33 years since the alleged offending occurred, it is the other factors I have outlined - which lead to the unfairness which relates to a critical element of the two principal sexual offences.
c.    In my view, the unfairness to the accused from the manner in which the Crown case is proposed to be led is real and not presumed.
d.    For the reasons I have already outlined, I do not consider that this prejudice is amenable to amelioration by rulings and/or judicial directions.
e.    After considering the cases that I have referred to above, I consider this case is different, and the course proposed by the prosecution has a more direct significant adverse effect on the accused.
f.     The public interest must be given real and heavy consideration in all cases where a stay is sought. I have done so here. The critical question is the balancing between the prejudice to the accused and the public interest.
In all the circumstances, I consider that the unfairness in this case is fundamental and goes to the root of the proceedings. It cannot be ameliorated. Notwithstanding the general public interest in the prosecution of allegations of serious crimes, that public interest does not outweigh the defects I have identified.
I order a stay of proceedings on indictment L10518813.

[2021] VCC 1232

13 August 2021