Haynes (a pseudonym) v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2023 0148

WILLIAM HAYNES (A PSEUDONYM)[1]	Applicant
v
THE KING	Respondent

[1]To ensure that there is no possibility of identification of the victim of sexual offending, this judgment has been anonymised by the adoption of a pseudonym in place of the applicant’s name.

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JUDGES:	NIALL, WALKER and MACAULAY JJA
WHERE HELD:	Geelong
DATE OF HEARING:	28 August 2024
DATE OF JUDGMENT:	19 September 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 207
JUDGMENT APPEALED FROM:	DPP v Haynes (County Court of Victoria, Judge Tinney, 30 May 2023) (Conviction)

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CRIMINAL LAW – Appeal – Conviction – Historical sex offending against child – 20 year delay between alleged offending and trial – Whether judge erred in refusing to give forensic disadvantage direction – No forensic disadvantage due to lack of medical or forensic material – Forensic disadvantage due to inability to explore timing and circumstances of offending, to question witnesses as to whereabouts at time of offending, and intervening death of witness – Forensic disadvantages ‘significant’ when considered cumulatively – Application for leave to appeal granted – Appeal allowed – Convictions set aside and new trial ordered.

Jury Directions Act 2015, ss 12, 14, 38, 39.

Robbins (a pseudonym) v The Queen (2017) 269 A Crim R 244; PT v The Queen [2011] VSCA 43; Slater (a pseudonym) v The Queen [2020] VSCA 270; Greensill v The Queen (2012) 37 VR 257; Pate (a pseudonym) v The Queen (2015) 250 A Crim R 425; Carson (a pseudonym) v The Queen [2019] VSCA 4; Kenny (a pseudonym) v The Queen [2018] VSCA 220; Lucciano (a pseudonym) v The Queen (2021) 287 A Crim R 529, discussed.

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Counsel
Applicant:		Mr D Cronin with Mr T Battersby
Respondent:		Mr RL Gibson KC with Mr R Slattery
Solicitors
Applicant:	Dribbin & Brown
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

NIALL JA
WALKER JA:

On 30 May 2023, following a trial by jury, the applicant was found guilty of three charges of incest and two charges of indecent act with a child under 16 years of age.[2] The charges concerned allegations of sexual abuse perpetrated by the applicant upon the complainant (‘PB’) between February 2001 and February 2004, when PB was between approximately eight and 10 years of age. The precise dates of the offending were not specified in the indictment. PB first complained about the offending in January 2021, when she told her sister and her aunt about it. She also complained to police in January 2021.
[2]Contrary to s 44(1) of the Crimes Act 1958 and s 47 of the Crimes Act 1958 respectively, as they appeared at the time of the alleged offending.
The applicant was first interviewed by the informant on 20 April 2021. The trial took place in May 2023. His case at trial was that PB was either mistaken or had fabricated the allegations. In the course of the trial the applicant’s counsel requested a significant forensic disadvantage direction under s 39 of the Jury Directions Act 2015, on the basis that the delay between the events in question and the trial — of some 20 years — had resulted in a significant forensic disadvantage to him. The judge refused to give such a direction.
The applicant now seeks leave to appeal his conviction on a single proposed ground of appeal,[3] namely that the trial judge erred by refusing to give a forensic disadvantage direction.
[3]For convenience we shall refer to the proposed ground of appeal simply as the ‘ground of appeal’. We note that the applicant had initially relied upon a second ground of appeal, but that ground was abandoned immediately before the hearing of the appeal.
For the reasons that follow, we would grant leave to appeal and allow the appeal. In our opinion, a forensic disadvantage direction was necessary in this case. The judge erred in concluding that the applicant had not suffered a significant forensic disadvantage by reason of the delay between the events in question and the trial. The failure to give a direction constituted a substantial miscarriage of justice, so that the appeal must be allowed.

Summary of charges and evidence

All the charges arose from allegations made by PB in a sworn statement taken on 4 February 2021. The charges relate to three specific instances of sexual abuse PB alleged had been committed by the applicant when she was aged between eight and 10 years old.[4] The charges alleged that the offending occurred between the years of 2001 and 2004. The trial took place in 2023.
[4]PB was born in 1993.
The applicant is the ex-husband of PB’s grandmother. PB’s evidence was that she had stayed with her grandmother and the applicant on various occasions when she was young, including during the school holidays. She said that the offending occurred during two such visits. The applicant admitted that he was present in the role of PB’s step‑grandfather at times when PB visited during the relevant years.
The first allegation in time occurred when PB was eight years old. She was visiting her grandmother and the applicant at their home in Moriac. PB was going to go and feed the chickens with her grandmother, but first she went upstairs to put her doll to bed. Her grandmother was waiting downstairs. PB was pretending to be the doll’s mother. The applicant came upstairs to the door of the room. The applicant is alleged to have asked PB if she was going to help her grandmother with the chickens. He then asked her if she liked babies, and she said yes. He approached her and asked her if she knew ‘where babies come from’ and then asked if she wanted him to show her. She did not respond. He unzipped his pants and rubbed his penis between her thighs. He then removed PB’s underwear and penetrated her vagina with his penis four to five times. After the penetration stopped, the applicant told PB ‘yeah it’s hurting me, you have to fix it because you don’t want me telling other people that you hurt your Pa’. He is then alleged to have taken PB’s hand and used it to masturbate his penis. He then pulled up his underwear, zipped up his jeans and left the room. There was no allegation that the applicant ejaculated. This conduct was the subject of charge 1, incest, and charge 2, indecent act with a child under 16.
PB said the door to the room remained open throughout these events. She said that after the offending she stayed upstairs for about an hour, and did not go and feed the chickens with her grandmother. The next day she noticed blood on her underpants.
PB appeared uncertain about whether her mother was in the house at the time. In her examination in chief she said she believed that her mother was at the house, but then said that her mother would often go for walks along the beach (thus suggesting, but not directly stating, that her mother was off on such a walk at the time of the offending). In cross-examination she said that she thought her mother returned to the house later that night, and that she believed that her mother was at Torquay that day.
The next act was alleged to have occurred some time later, between 2003 and 2004. PB was visiting her grandmother and the applicant at their home in Bannockburn during the school holidays. She was around 10 years of age. PB said that her grandmother had told her to take a shower before lunch, and she did so. She described the pipes making a loud, high-pitched noise. PB said that while she was showering, the applicant opened to door to the bathroom and stood in the doorway. After PB turned off the shower, the applicant closed and locked the door. PB got out of the shower and grabbed a towel, and asked what the applicant was doing. He told PB that he would show her something that would ‘make everyone love her when she was older’. He then unzipped his pants and placed his hands on PB’s shoulders and guided her to her knees. He pulled out his penis and forced it into PB’s mouth, and moved his body backwards and forwards while also moving PB’s head. PB then moved her head away and he stopped. He again told her that she had hurt him, and again used her hand to masturbate his penis. PB alleged that the applicant ejaculated onto her shoulder and the floor during this incident. In her evidence she said that the applicant cleaned up the ejaculate on the floor with his sock, which was on his foot. She got back in the shower to wash the ejaculate off her body. This conduct was the subject of charge 3, incest, and charge 4, indecent act with a child under 16.
PB said that she got out of the shower after about 10 minutes, and then her grandmother came to tell her that lunch was ready. She did not say anything to her grandmother about what had occurred. She was also uncertain about whether her siblings were in the house at the time.
The third incident was alleged to have occurred a few days after the second incident, during the same visit during the school holidays. PB and her sister, NB, were sleeping on two mattresses on the floor in the lounge room. PB woke up and saw the applicant sitting on a chair watching her. He then came over to the bed and kissed NB on her head. He did the same to PB. PB said that the applicant then put his hand inside her underwear and penetrated her vagina. PB pretended to be asleep. NB remained asleep. PB woke up the next day with blood in her underpants. This conduct was the subject of charge 5, incest.
On a later visit, when PB was 11 or 12 years old, in the course of a car trip, the applicant is alleged to have pulled the car over and touched PB on the leg, inside her shorts. PB told the applicant that if he touched her again, she would tell. The applicant removed his hand, and there was no further offending.
Beyond PB’s testimony, there was no corroborating evidence led at trial regarding the alleged events.
The applicant did not give evidence at the trial, but his record of interview was in evidence, in which he denied that the events described by PB had occurred. He gave an account of some contextual matters that differed from PB’s account, namely that:
(a)the pipes in the Bannockburn house were not noisy, because it was a new house; and
(b)there was no lock on the bathroom door in the Bannockburn house.
PB’s grandmother was called as a witness. She was cross-examined by the applicant’s counsel in the absence of the jury, pursuant to s 198B of the Criminal Procedure Act 2009. She was asked whether she recalled if the pipes in the Bannockburn house were noisy, and she said that she could not recall. She was also asked whether there was a lock on the bathroom door in that house, and she said that there was.
In her examination-in-chief before the jury PB’s grandmother gave evidence about the familial relationships relevant to the case and the houses that she and the applicant lived in. She said that PB’s mother, together with PB and her siblings, came to stay at the Moriac house and the Bannockburn house, and that sometimes the children came to stay without their mother. In cross-examination she was asked two questions only:
Is it correct that you lived with [the applicant] from 1993 to 2010?---Yes.
And up until you were contacted by police, it’s correct that you had never seen or heard anything that made you suspect that [the applicant] had sexually abused [PB]?---No.
PB’s older sister, NB, was called as a witness. She gave evidence about the familial relationships relevant to the case and the houses where she had visited her grandmother and the applicant. She said that she and PB would sleep on a mattress on the floor at the Moriac house, and that she and her siblings would help their grandmother collect eggs from the chickens.
NB said that she did not recall anything out of the ordinary during her visits to either of the houses. She also gave evidence of PB’s complaint to her in January 2021. She agreed that prior to that conversation she had no idea that anything sexual might have occurred. She was not asked anything specific in relation to the third incident, involving the mattress.
Statements from PB’s aunts, SW and PW, were read into evidence. The statements were brief. PW’s statement concerned only PB’s complaint to them about the offending. SW’s statement concerned the family history and her recollection of PB’s visits to the applicant’s house and SW’s house. SW also said that she could not remember PB ever mentioning anything happening at her grandparents’ house, or seeming reluctant to visit them. PB’s brother was not called.
A police officer was also called in relation to PB’s complaint to police and the applicant’s record of interview. Photographs and plans of the two houses in question were tendered in evidence.

The relevant statutory provisions

Section 39 of the Jury Directions Act provides as follows:
(1)Defence counsel may request under section 12 that the trial judge direct the jury on forensic disadvantage experienced by the accused.
(2)The trial judge may direct the jury as referred to in subsection (1) only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.
(3)In giving a direction referred to in subsection (1), the trial judge—
(a)must inform the jury of—
(i)the nature of the disadvantage experienced by the accused; and
(ii)the need to take the disadvantage into account when considering the evidence; and
(b)must not say, or suggest in any way, to the jury that—
(i)it would be dangerous or unsafe to convict the accused; or
(ii)the victim's evidence should be scrutinised with great care.
The term ‘forensic disadvantage’ is defined in s 38 of the Jury Directions Act as follows:
forensic disadvantage means a disadvantage (that is more than the mere existence of delay) to the accused in—
(a)challenging, adducing or giving evidence; or
(b)conducting his or her case—
because of the consequences of delay due to the period of time that has elapsed between the alleged offence and the trial.
Section 12 of the Jury Directions Act provides that the prosecution and defence counsel must request that the trial judge give, or not give, to the jury particular directions in respect of the evidence in the trial.
Section 14 provides as follows:
(1)The trial judge must give the jury a requested direction unless there are good reasons for not doing so.
(2)In determining whether there are good reasons for not giving a requested direction to the jury, the trial judge must have regard to—
(a)the evidence in the trial; and
(b)the manner in which the prosecution and the accused have conducted their cases, including—
(i)whether the direction concerns a matter not raised or relied on by the accused; and
(ii)whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which the accused has presented his or her case.

The applicant’s application at trial for a forensic disadvantage direction

In the course of the trial the applicant requested a forensic disadvantage direction on the basis that, by reason of the delay in complaint:
(a)he had not been able to explore the circumstances of the alleged offending in detail, in terms of who else might have been present in the house and what they might have observed;
(b)he was not able to identify the allegations with any specificity, such as what time of day the events were said to have occurred, and to relate that to his work hours, which could go to the question of an alibi;
(c)he had lost the chance to mount any defence other than a bare denial;
(d)he had lost the chance to obtain forensic material or for there to be a medical examination of the complainant;
(e)PB’s mother had died and so could not give evidence;
(f)and, more generally, he had lost the opportunity to call evidence contradicting PB’s broader evidence.
The applicant also identified two more areas of specific evidence where he said a forensic disadvantage arose.
(a)The first concerned the question of whether there was a lock on the bathroom door. PB had said the applicant locked the door before he assaulted her in the bathroom. In contrast, the applicant said there was no lock on the door. PB’s grandmother had given evidence in the absence of the jury that there was a lock on the door. However, she was not asked about this in the course of her evidence in the presence of the jury. The applicant’s argument about forensic disadvantage appeared to turn on the fact that the house was no longer in existence in the same form, so that there could be no objective way to ascertain whether there was or was not a lock on the bathroom door, such as by conduct of a ‘view’.
(b)The second concerned the question whether the pipes in the house had been particularly noisy. PB had said that they were very noisy, whereas the applicant said that they were not, and pointed to the fact that the house was a new house. PB’s grandmother, when asked about whether the pipes were noisy, could not remember.
However, the applicant’s trial counsel accepted that these matters were ‘fairly minor in the scheme of things’.
In relation to the ability to obtain a medical examination or forensic evidence, trial counsel accepted that, ‘in terms of an opportunity for a medical examination or other forensic evidence, that window closes very quickly’.
However, he submitted that there were other witnesses who could have been asked about the movement of persons and PB’s interactions with other persons at the time of the offending, including questions directed to who PB was with and where the applicant was.
All he’s able to say 20 years after the fact — she says this stuff happened and it happened like this. He’s unable to test that. And that’s precisely what forensic disadvantage is. In terms of the absence of any contradictory evidence, he’s not able to go away and confirm; [PB’s grandmother] isn’t able to say whether she was cooking lunch on that day and [the applicant] went missing or [the applicant] was with her the whole time.
So those types of questions — it’s precisely this type of case Your Honour that contemplates this direction …, where it’s a single witness uncorroborated 20 years later. It’s precisely the type of situation where this direction is required and it’s not saying that this witness can’t be believed, but it is merely drawing to the jury’s attention the opportunity that the accused hasn’t had in terms of preparing his — or gathering material that might support his defence. So the nature of the disadvantage experienced by the accused in that submission is that he — this case relies entirely on … the complainant’s evidence so he is not able to test that or contradict that or gather evidence that might exculpate him.

The trial judge’s ruling

The judge made his ruling on the forensic disadvantage direction on 25 May 2023, prior to the closing addresses of counsel. He published written reasons for his ruling the next day.
In his written reasons the judge commenced by observing that he was required to give a forensic disadvantage direction under s 39 unless there were good reasons for not doing so. He also observed that s 39 contains a qualification to the duty to give the direction — it specifies a threshold for the giving of the requested direction. That is, the judge could only give the requested forensic disadvantage direction if he was satisfied that the applicant had experienced a significant forensic disadvantage. His Honour then adverted to the definition of forensic disadvantage in s 38 of the Jury Directions Act. He said this:
To attract s39 there must be not just a forensic disadvantage, there must be a significant forensic disadvantage. It is an obvious and high threshold.

The judge then referred to some of the key authorities concerning when a forensic disadvantage direction is to be given, including the eight principles set out in Robbins (a pseudonym) v The Queen.[5] He said this:
Disadvantages that are hypothetical or speculative or nebulous will just not be sufficient in this area, because there must be a disadvantage in challenging, in adducing, in giving evidence or in conducting his case, because of the consequences of delay, and it must be a significant forensic disadvantage that has been experienced. So not something hypothetical or nebulous or speculative.
…
The disadvantage must be of a forensic nature. That is, a disadvantage suffered by the accused in challenging or adducing or giving evidence or in conducting the case. It can only be given if [I] am satisfied that the accused has experienced a significant forensic disadvantage. That decision and others make it plain there are disadvantages as a consequence of delay which do not warrant a direction under this provision. Disadvantages can be adequately dealt with in counsel’s addresses, as they were in this case if I may so [sic], and do not require a judicial direction.
The accused has an onus of establishing that the consequences of delay give rise to a significant forensic disadvantage, and it is incumbent upon the accused to identify the particular risks of prejudice which constitute that significant forensic disadvantage.
In some occasions the loss of opportunity to obtain evidence of contemporaneous medical examinations in a particular case, could constitute a significant forensic disadvantage, either on its own or in combination with other factors. But the onus is on the accused to establish that the consequences of delay give rise to not just a disadvantage, but a significant one.
[5](2017) 269 A Crim R 244; [2017] VSCA 288 (‘Robbins’).
There was no suggestion before this Court that the judge’s enunciation of the relevant principles involved error.
Turning to the application in this case, the judge said this:
A delay of a couple of decades. The inability to explore who else was in the house and what they may have observed. The loss of opportunity of alibi. The loss of defence other alibi [sic]. The loss of opportunity to have a medical examination or forensic examination. The loss of opportunity to call evidence, to contradict evidence of the complainant, or to challenge the surrounding circumstances. For instance, the existence of a lock on the bathroom door.
They are the things are commonly are trotted out, and they were trotted out in this case. Most of them in my judgment were generic and there was a concession that there was high level of speculation as to what, if anything, would have been different had there been a complaint closer to the event.
The judge then dealt more specifically with the various matters upon which defence counsel had relied in his application for the direction:
The loss of the chance to obtain evidence as to the particular aspects of the house was an unusual feature of this application. True it is that a site examination in this day and age, even if it could be engineered, would be worthless given the renovations that might have taken place between then and now. But the floorplan was not seemingly in dispute. There were photographs of the house and a floorplan and no meaningful dispute about the layout of the house.
There was a question as to the noise made out of the hot water service, or the pipes, or some such thing. That could be subject, and was the subject of adequate cross-examination. [Defence counsel] had the opportunity in the absence of the jury to ask questions of the grandmother, and did so, on that topic where she had no memory. But also as to existence of a lock on the bathroom door. On that later score, he got an answer that was not too pleasing. She said there was a lock which ran in direct conflict with the accused man’s account in the interview and coincided with the account of the complainant.
The witness was then called at the trial. That evidence was by mistake not led by the Crown and it was hardly surprising that [defence counsel] did not bring it to the attention of the jury, which makes in my judgment quite hollow, the inclusion by [defence counsel] as an item the uncertainty as to whether there was a lock on the door. A second witness was available on that topic.
In relation to the fact that PB’s mother had since died and so could not give evidence about the matters in issue at the trial, the judge observed that she was said on some occasions not to have been welcome when the children were visiting, or to have gone for a walk on the beach at the time of at least one of the alleged offences. In those circumstances, the judge concluded that her evidence was unlikely to have contributed anything, and it was entirely speculative as to what she could have said about the allegations.
In relation to the inability to obtain medical or other forensic evidence, the judge said this:
The loss of the opportunity of the medical examination or forensic examination is a matter of no moment at all in this case. There was evidence from the informant on the topic of the very limited window or timeframe of when that sort of material could be collected. There is no suggestion as I understand it of there being any ejaculation within the complainant. She described a very brief act. She described some blood spotting. Some dried blood on her underpants after two of the events; the penile vaginal penetration and the digital vaginal penetration, but no injury of any significance.
In terms of the viability of any sort of medical examination, as the informant said, the window was a matter of days really, and it might be less than that obviously.
The judge concluded that he was not satisfied that the applicant had experienced a significant forensic disadvantage, and for that reason his Honour declined to give the forensic disadvantage direction. He further observed, for completeness, that, if he were required then to consider the duty under s 14 of the Jury Directions Act, he would have concluded that there were good reasons not to give the direction.
Finally, the judge said as follows:
I am also satisfied that the various matters that have been raised could be adequately dealt with in the course of their address, and indeed I have observed the address and observed that they were appropriately dealt with. Of course, that does not form the basis for my reason to have not given the direction because I had not seen the address at that point.

Relevant principles concerning significant forensic disadvantage

As the trial judge correctly observed, the principles relevant to the making of an unreliable evidence direction under s 39 of the Jury Directions Act are those set out by this Court in Robbins, as follows:
(1)The origins of the relevant concern are to be found in historic sex offence cases and the decision of the High Court in Longman.
(2)The forensic disadvantage governed by s 39 is a disadvantage occurring because of the consequences of delay between the alleged offence and the trial.
(3)The disadvantage must be of a forensic nature; that is, a disadvantage suffered by the accused in challenging, adducing or giving evidence, or in conducting the accused’s case.
(4)The direction can only be given if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage.
(5)There are disadvantages as a consequence of delay which do not warrant a direction under s 39. These disadvantages can be adequately dealt with in counsels’ addresses and do not require a judicial direction.
(6)The accused has the onus of establishing that the consequences of delay give rise to a significant forensic disadvantage.
(7)It is incumbent upon the accused to identify the particular risks of prejudice which constitute the significant forensic disadvantage.
(8)A loss of opportunity to obtain evidence of a contemporaneous medical examination which had occurred (Pate), or medical or other scientific investigations which might have been undertaken (Jurj), or expert medical opinion which might have been obtained (Greensill), could, in a particular case, constitute a significant forensic disadvantage.[6]
[6]Robbins (2017) 269 A Crim R 244, 270–1 [186] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288 (emphasis in original).
The disadvantages referred to in paragraph (5) of the Robbins summary are, in our view, those disadvantages resulting from delay that are not significant. This Court was not saying that there are significant disadvantages that do not warrant a direction under s 39.
The decision in Robbins was, to a large extent, based on this Court’s decision in PT v The Queen.[7] In that case this Court observed that ‘a hypothetical disadvantage will not be sufficient’,[8] and that the ‘clear focus of the provision is on identification of the particular consequences of the delay which give rise to significant disadvantage’.[9] The Court concluded that the asserted disadvantages there were speculative or were matters in relation to which there could be no confidence that the defence case would have been assisted had an earlier complaint been made.[10]
[7][2011] VSCA 43 (‘PT’).
[8]PT [2011] VSCA 43, [25] (Maxwell P, Buchanan and Weinberg JJA).
[9]PT [2011] VSCA 43, [27] (Maxwell P, Buchanan and Weinberg JJA).
[10]PT [2011] VSCA 43, [39]–[45] (Maxwell P, Buchanan and Weinberg JJA).
In Robbins the delay in question was some five years from the last alleged offence to the time of the trial. The applicant had based his request for the direction on the following matters, which bear some similarity to the matters upon which the applicant in the present case relied:
(a)delay had caused the complainant to be unable to remember the circumstances of the alleged offences in detail and that this had had the consequent effect that the accused was unable to explore those circumstances in detail;
(b)the applicant’s inability to identify an alibi;
(c)the absence of forensic scientific examination of the applicant’s shirts for semen and the carpet in the accused’s home for vomit; and
(d)the diminished impact of evidence given that pornographic material had not been found on the accused’s computer.[11]
[11]Robbins (2017) 269 A Crim R 244, 271 [187] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288.
In Robbins this Court concluded that the argument based on a loss of a chance to explore details was ‘speculation’ and ‘nebulous’ — while there was a potential for the existence of forensic disadvantages, counsel addressed them in his closing address, and the applicant had not identified and demonstrated particular risks which constituted a significant forensic disadvantage in this context.[12] The Court also rejected the argument that the other matters relied upon gave rise to a significant forensic disadvantage.[13]
[12]Robbins (2017) 269 A Crim R 244, 273 [198] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288.
[13]Robbins (2017) 269 A Crim R 244, 273–4 [200]–[206] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288.
The Court also said this:
This is not a case where the delay in itself might lead to an inference that a significant forensic disadvantage had been suffered. This is not a case of historic sexual offending.[14]
[14]Robbins (2017) 269 A Crim R 244, 272 [197] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288.
We do not take the Court there to be suggesting that, in a case of ‘historic sexual offending’, delay must always lead to a significant forensic disadvantage. Such a conclusion would be inconsistent with this Court’s decision in PT (which also concerned sexual offending), which the Court in Robbins was following, and where the delay was some 18 years, yet no forensic disadvantage direction was required. Rather, this remark points to the relevance of the length of the delay to the assessment of whether the accused has experienced a significant forensic disadvantage — the longer the delay, the more likely it is that an inference of such a disadvantage will be drawn.

The parties’ submissions before this Court

Before this Court the applicant relied in essence on the same matters raised before the trial judge as providing the foundation for a conclusion that a forensic disadvantage direction was required. He submitted that, in the absence of a forensic disadvantage direction, ‘the jury as laypeople would have been unaware of the particular dangers that arise from a delay in complaint’.
The applicant accepted that, before a forensic disadvantage direction is required under s 39, there must be more than the mere existence of delay.[15] (Indeed, that is apparent from the definition of ‘forensic disadvantage’ in s 38 of the Jury Directions Act.) However, he submitted that in his case, in addition to almost two decades of delay, ‘there were no other relevant witnesses to the relevant times of the alleged offending, no medical material or forensic evidence, and therefore no opportunity to mount any defence beyond a bare denial’. He contended that the trial judge ‘should have been compelled to find that the applicant had suffered significant forensic disadvantage’. He submitted that, although had a warning been given the jury might still have convicted, the absence of such a warning meant that the applicant did not receive a fair trial.
[15]Citing Slater (a pseudonym) v The Queen [2020] VSCA 270, [106] (Priest JA, Beach JA agreeing at [133], T Forrest JA agreeing at [146]).
In his written submissions the applicant set out seven matters that were relied upon to demonstrate a significant forensic disadvantage, as follows:
a. a lack of any medical material;
b. an absence of any other forensic evidence;
c. a lack of opportunity to explore the circumstances of the alleged offending;
d. a lack of information about the presence or absence of other witnesses during the alleged offending;
e. the absence of any potential alibi, including work records or other business;
f. the absence of the complainant’s mother as a witness due to her intervening death; and
g. the loss of opportunity to mount any defence other than a bare denial.
In response, the respondent contended that none of these matters caused the applicant to experience a significant forensic disadvantage. It was submitted that the matters relied on were ‘generic’ or ‘highly speculative’, and not of the type or significance to engage s 39.

Consideration: Did the judge err in refusing a forensic disadvantage direction?

We note at the outset that two of the matters relied upon by the applicant cannot, in our view, constitute a forensic disadvantage in this case — let alone a significant forensic disadvantage — as a consequence of delay. Those are the lack of medical or forensic material. We will deal with those matters first.
The other matters upon which the applicant relied — a lack of opportunity to explore the circumstances of the alleged offending, a lack of information about the whereabouts of other witnesses during the alleged offending, and the absence of the complainant’s mother as a witness due to her intervening death — do constitute forensic disadvantages as a consequence of delay. And, for the reasons set out below, we consider they constitute a significant forensic disadvantage, when considered cumulatively.

Matters that did not give rise to any forensic disadvantage as a consequence of delay

The first matter that we consider did not amount to a forensic disadvantage as a result of delay was the ‘lack of any medical material’. In oral argument the applicant pointed to the fact that PB had given evidence that she had found blood in her underwear the next day. Thus, he submitted, the jury could have inferred that the bleeding was a result of injury to her vagina. As we understood the argument, it was that a medical examination of PB might have revealed an absence of injury, but the delay in complaint had prevented such an examination. Alternatively, he submitted, the presence of blood could have been explained by the rupture of PB’s hymen, and again the delay in complaint prevented an examination of PB’s hymen, either at the time of the alleged events or even some years afterwards.
The applicant accepted that neither the question of injury or the question of rupture of the hymen was put to PB in cross-examination.
In light of PB’s evidence concerning the circumstances and aftermath of the offending, there is no reason to think that a physical examination of PB even immediately after the alleged events would have revealed any relevant evidence. PB did not describe being injured in the course of the offending. As the respondent submitted, when PB was describing the vaginal-penile penetration (charge 1), she stated that, while the applicant’s penis ‘did end up inside’ her vagina, she could not say how far it went in. She said that she felt pressure about four or so times inside her vagina. In relation to the digital-vaginal penetration (charge 5), the complainant could not say how many fingers were inserted into her vagina, only that it ‘hurt’. There is thus no basis to conclude that any medical examination could have assisted in confirming or negating the complainant’s account about the practical occurrence of these events. Medical evidence that there was no sign of injury shortly after the time of the events would not make it less likely that the events occurred. As for the suggestion either that an examination of PB’s hymen could have, or ought to have, occurred at the time of, or some years after the alleged events, and that such examination could have resulted in relevant evidence, that is fanciful and must be rejected in the strongest terms.
In relation to the asserted absence of medical evidence, this case was quite different from other cases where loss of an opportunity to obtain medical evidence has been held to have constituted a significant forensic disadvantage. In Greensill v The Queen,[16] for example, medical evidence obtained closer to the alleged offending could have revealed that the offences were physically impossible. That case concerned an allegation of sexual abuse of two eight year old boys by a 28 year old woman. The complainants (giving evidence as adults) alleged that they had produced semen in the course of the abuse. By reason of a delay of some 30 years, the defendant was deprived of the opportunity to adduce evidence about whether the boys in question were capable of engaging in sexual intercourse with an adult woman and/or of producing semen.[17] And in Pate (a pseudonym) v The Queen,[18] the complainant gave evidence that her vagina was sore, inflamed and bleeding, and that her mother had taken her to see a doctor the next day.[19] However, the delay meant that any evidence of that medical examination, had it been conducted, had been lost.
[16](2012) 37 VR 257; [2012] VSCA 306 (‘Greensill’).
[17]Greensill (2012) 37 VR 257, 282 [107] (Redlich, Osborn and Priest JJA); [2012] VSCA 306.
[18](2015) 250 A Crim R 425; [2015] VSCA 110 (‘Pate’).
[19]Pate (2015) 250 A Crim R 425, 440 [81], 445 [99] (Weinberg JA), 452 [129] (Priest JA); [2015] VSCA 110.
As this Court pointed out in Robbins, if a forensic disadvantage direction was required in the present case, it would be required in every case where there is a delay sufficient to preclude an immediate medical examination of the victim.[20] This Court did not accept that s 39 creates that position; we agree.
[20]Robbins (2017) 269 A Crim R 244, 274 [205] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288.
Secondly, the applicant relied upon an absence of any ‘other forensic evidence’. This was elaborated on in oral argument to mean an absence of any forensic testing of the applicant’s sock, or of the area of the offending, to ascertain whether the applicant’s DNA was present. Forensic testing could have been directed to the presence or absence of ejaculate on the sock. In so far as the applicant’s sock is concerned, the presence of DNA on it would show nothing of relevance. As for the presence of ejaculate on the sock, that would have been equivocal in nature, even if such evidence had been obtained. The presence of his own ejaculate on his own sock would neither confirm nor undermine PB’s evidence. And the absence of DNA (or ejaculate) would be significant only if an immediate complaint had been made, so that the sock was immediately available for testing. Otherwise, the sock could have been washed or disposed of. The applicant’s counsel accepted as much in the course of the hearing.

Furthermore, the informant gave evidence that there would have been only a brief window of a few hours or days in which to collect forensic material, assuming any was left. In that context the relevant ‘delay’ in complaint is a matter of hours or even minutes. As this Court observed in Robbins, this amounts, in substance, to a forensic disadvantage said to be constituted by the failure to make an immediate complaint — but a failure to make an immediate complaint, where the relevant delay is measured in hours or minutes, is not a ‘delay’ of the kind addressed in s 39.
Again, if a forensic disadvantage direction was required in this case by reason of the absence of forensic evidence, it would be required in every case where there is a delay sufficient to preclude the immediate collection of such evidence. And, again, we do not accept that s 39 leads to such an outcome. In that regard, any disadvantage to the applicant arises from the absence of an immediate complaint, rather than from the delay in complaint, as the respondent submitted.

Matters that did give rise to a forensic disadvantage as a consequence of delay

As noted above, we accept that several of the matters relied upon by the applicant gave rise to a forensic disadvantage to him as a consequence of the delay. These were:
(a)the lack of opportunity to explore the circumstances of the alleged offending, including the timing of the offending;
(b)the lack of information about the whereabouts of other witnesses during the alleged offending; and
(c)the absence of PB’s mother as a witness due to her intervening death.
In relation to the first of these matters, the applicant submitted in oral argument that there was a lack of specificity about the time at which the offences were said to have taken place that was a product of the delay. That is, PB was unable to specify what time of day, what day of the week or what season it was, at least in relation to some of the offending. Information of that kind would have reduced the disadvantage to him arising from the ‘between dates’ charges. In contrast the respondent submitted that PB’s vagueness about when the offending occurred was a ‘weapon’ the defence had available, in its impact on whether the Crown could prove the offences beyond a reasonable doubt.
In our opinion, this aspect of the applicant’s submissions overstated the import of PB’s evidence. In relation to the second and third incidents, they were said to have occurred during the school holidays, when it was warm; the second incident was said to have occurred before lunch, around 10.00 am or 11.00 am; and the third incident was said to have occurred at night.
Putting that overstatement to one side, however, we accept that the applicant experienced a forensic disadvantage in not knowing more precisely when the offending was alleged to have occurred. This precluded him from potentially obtaining evidence about his movements on a particular date or dates. While that is common in relation to charges of sexual offending against children, it is likely to be exacerbated by the delay in complaint, which may be expected to impair the ability of the complainant to narrow down the time frame in question. The period of the delay no doubt contributed to the inability of the complainant to be more precise as to when the offending occurred and this was addressed by the between dates charges that spanned more than 12 months. This may have made it more difficult for the applicant to identify an alibi, although the extent to which it did so is impossible to estimate. Given that on any view of the evidence there was ample opportunity for the applicant to commit the offences it would have been very difficult to provide an alibi that covered all potential occasions on which the offending might have occurred. Nevertheless, the delay made it more difficult for both parties to be more precise about aspects of the offending. The fact that the delay may have caused difficulties for the prosecution did not mean that it could not, at the same time, cause problems of a similar kind for the defence. Alone, however, such a disadvantage would not, in our opinion, rise to the level of ‘significant’.
The applicant was also disadvantaged in his ability to test PB’s evidence because PB’s recollection of some aspects of the offending and of the surrounding circumstances was, we infer, affected by the delay. There were various occasions in the course of her evidence where she could not recall certain matters, particularly in relation to the first incident. For example:
(a)PB was uncertain about whether her mother was in the house at the time of the first incident.
(b)PB could not recall if her siblings were present in the house at the time of the first incident.
(c)PB did not recall if she said anything during the first incident.
(d)PB did not recall whether she put any clothes back on after the first incident.
(e)PB did not remember how her underwear was removed in the course of the first incident.
(f)PB could not recall if her siblings were present in the house at the time of the second incident.
(g)PB’s recollection of what she did about the blood in her underwear was expressed in equivocal terms, based on what she ‘would have done’, rather than being expressed as a clear memory of what she had done.
(h)PB’s recollection of the conversation in the car was limited.
The applicant also pointed to the difference between the applicant and PB in relation to whether the pipes in the bathroom were very noisy, and to the fact that PB’s grandmother was asked about that, and was unable to remember. That failure of memory was, he submitted, a consequence of the effluxion of time. That deprived the applicant of the opportunity to prove that his response in his record of interview was true, and to cast doubt upon PB’s credibility or reliability. The respondent pointed out that, before the trial judge, the applicant’s counsel had conceded that these were ‘minor matters’, and that this was a point of ‘no significance’.
The applicant also submitted that he was unable to contrast what PB said with what other witnesses saw, heard or perceived on each of the different occasions, other than asking them, as trial counsel did, whether or not they saw anything consistent with a sexual assault or something that caused them concern. Their response to that question was that they had not seen anything of that kind. The applicant submitted that a jury would be able to discount that evidence by reason of the effluxion of time. But he was unable to adduce evidence of any more detailed recollections about what had occurred either before or after the alleged offending. That is, he submitted that he was unable to explore the evidence of the witnesses effectively because they were being placed in a position where they were being asked to recall events from around 20 years earlier.
We accept that this, too, was a forensic disadvantage that arose as a consequence of delay. The applicant had limited ability to challenge PB’s account, other than by his denials. In that context, any discrepancy or inaccuracy in her account — even if relatively minor — could have assisted his case — but he was deprived of the opportunity to demonstrate a discrepancy or inaccuracy.
The applicant pointed to a specific example concerning the second incident, which occurred in the bathroom after PB had showered. PB’s evidence was that her grandmother had told her to have a shower before lunch, and that the applicant came in to tell her that lunch ‘was done or nearly done’, and then the offending occurred. PB said that, after the offending, she stayed in the shower for about another 10 minutes, and then her grandmother came to tell her that lunch was ready. The applicant contended that after a 20 year delay, it was understandable that trial counsel would not cross-examine PB’s grandmother by asking a question about whether there was an occasion when PB was late for lunch and she had to go and get her, because the likelihood was that, at some point during PB’s visits, there probably was such a time. Thus any attempt to interrogate that event would be met with a response that was likely to be consistent with PB’s evidence, by reason of the ‘blurring [of] many years of recollection into one’.
In contrast, the respondent submitted that the issue of PB being late coming to lunch was such a ‘mundane event’ that even if there had been no delay, PB’s grandmother was unlikely to have been able to throw any light on whether PB was a bit delayed in coming to lunch. The respondent submitted that PB’s grandmother was not tied to this incident in a ‘particularly significant way’.
The applicant impliedly advanced a similar argument in relation to the first incident. In relation to that incident, PB gave evidence that she was going to go and feed the chickens with her grandmother. She went upstairs to put her doll to bed, and that was when the offending occurred. She said that her grandmother was waiting downstairs for her. She also said that after the offending she stayed upstairs for around an hour, and did not go and feed the chickens with her grandmother. Nor did her grandmother come and look for her. The underlying gravamen of the applicant’s submissions was that, were it not for the delay, he could have asked PB’s grandmother whether she recalled an incident where PB was supposed to go with her to feed the chickens, she was waiting for PB, and PB was gone for an hour. But the delay made a question of that kind unrealistic.
In relation to PB’s grandmother’s role concerning the first incident, the respondent submitted that PB’s grandmother could have been asked questions concerning the chickens, such as whether she fed the chickens with the children, whether she invited PB to feed the chickens with her, whether there were other children who were keen to feed the chickens. However, these possible questions suggested by the respondent were general in nature and not directed to the particular incident in question.
We accept that the applicant experienced a forensic disadvantage in his ability to cross-examine PB’s grandmother about both of these incidents as a consequence of the delay. PB’s grandmother featured in PB’s account of two of the incidents, but as a consequence of the delay there was no realistic opportunity for her to be asked about either incident. The applicant’s counsel’s extremely limited cross-examination of PB’s grandmother supports this conclusion.
Finally, the applicant relied upon the fact that PB’s mother had died and thus was not available to give evidence at all. The respondent conceded that her absence as a witness was a consequence of the delay.
At trial the applicant had contended that PB’s mother could have given evidence about the movements of PB and her siblings, and about her own presence in the house or not. In relation to the latter issue, he submitted in this Court that there was some uncertainty in PB’s evidence about whether her mother was in the house at the time of the first incident. The applicant contended that he was deprived of the opportunity to test what PB said about her mother not being at the house on that occasion. He also submitted that PB’s mother could have given evidence about PB’s demeanour before and after the incidents and whether she objected to going to visit her grandmother and the applicant. Questions of that kind were asked of PB’s sister, but a parent may well have had greater insight into the demeanour or behaviour of their child. And that kind of observation could, he submitted, have been significant to a jury.
In contrast, the respondent submitted that ‘nothing could have turned on’ the evidence of PB’s mother. The respondent said that ‘both the applicant and complainant gave evidence that the complainant’s mother — who was an unavailable witness — would go for walks along the beach in Torquay whenever the complainant visited’. We do not accept that submission. The applicant (who did not give evidence) did not say anything like that in his record of interview. And PB’s evidence was that her mother would often go for such walks, but that she was uncertain about whether her mother had done so on the occasion of the first incident.
The respondent also submitted that it was only possible to speculate about what evidence PB’s mother might have given about PB’s demeanour, and that it therefore ‘does not rise to the level of a significant forensic disadvantage’. The respondent initially suggested that this Court should assume that PB’s mother would have said that she came home from a walk, and found PB to be upset. Alternatively, the respondent submitted that if it were to be assumed that PB’s mother evidence would have been that she saw nothing to suggest that PB was upset, PB would need to have been asked questions directed to her demeanour after the first incident — but no such questions were asked. Likewise, no questions were asked about whether she had ever protested to her mother about being left with her grandmother and the applicant. That is, no foundation for such a pathway of reasoning was laid. But that submission misses the point. It is unsurprising that no questions were asked to lay a foundation for such an argument, because PB’s mother was not available to be called as a witness. Thus any such foundation would have been pointless and, perhaps, counter-productive.
We have no doubt that the death of PB’s mother resulted in a forensic disadvantage to the applicant, again as a result of the delay. It was possible that PB’s mother could have given relevant evidence about the circumstances before or after the first incident, when it was unclear whether she was in the house or not. She might also have been able to give evidence about PB’s demeanour at the relevant times, whether PB seemed upset after visiting her grandmother, or whether PB ever resisted or objected to such visits. While she was unlikely to have been able to give direct evidence of the events in question, we cannot conclude that the significance of her evidence would have been insignificant in the circumstances of the trial.
Where a witness has died it is, of course, impossible to know what evidence they would have given. In that sense, this aspect of the applicant’s argument can be described as ‘speculative’. However, as the cases concerning the principles applicable to an application for a permanent stay on the basis of delay reveal, that does not mean that a forensic disadvantage direction is not required. Indeed, in such cases a permanent stay is often refused on the basis that such a direction will be given. For example, in Carson (a pseudonym) v The Queen, this Court said this:
As is very often the case with sexual offending, the conduct alleged by the various complainants is alleged to have taken place in private, behind closed doors, or otherwise out of view. The critical issue in the trial will be the credibility of the accounts which the respective complainants give of what they say occurred — before, during and after the alleged offending. There is no reason to think that the absence of evidence from the unavailable witnesses will render the trial “unacceptably unfair”. The content of the lost evidence is simply unknown. The best that can be said on the applicant’s behalf is that he has lost the chance of addressing evidence that might support his denials. Its potential importance to the trial was, necessarily, a matter of pure speculation.[21]
[21]Carson (a pseudonym) v The Queen [2019] VSCA 4, [18] (Maxwell P and T Forrest JA) (emphasis in original) (‘Carson’).
The forensic disadvantage in that case was not sufficient to justify a permanent stay of the charges. But the Court recognised that a forensic disadvantage direction would be given in that case.[22]
[22]Carson [2019] VSCA 4, [7] (Maxwell P and T Forrest JA).
That is, the law contemplates that in cases of long delay, it remains possible for an accused to receive a trial which is not unacceptably unfair, despite the trial being attended to some extent by prejudice or forensic disadvantage. Where such disadvantage concerns evidence that ‘could only have been contextual’, and where ‘how any such evidence would fall is a matter of complete speculation’, such prejudice or disadvantage is to be addressed and ameliorated by the giving of a forensic disadvantage direction.[23]
[23]Kenny (a pseudonym) v The Queen [2018] VSCA 220, [72], [76], [84] (Taylor AJA, Priest JA agreeing at [1], Weinberg JA agreeing at [94]). See also Jones v The Queen [2017] VSCA 111, [76] (Whelan, Ferguson JJA and Kidd AJA).
In Lucciano (a pseudonym) v The Queen this Court said this:
The cases draw a distinction between the loss of evidence as a result of delay and the loss of the opportunity to obtain evidence. 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.
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. The cumulative effects of delay must be considered.[24]
[24](2021) 287 A Crim R 529, 539 [42]–[43] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12 (citations omitted).
Although that was a case concerning an application for a permanent stay, involving a much greater delay than the present case, we consider that the principles there identified are applicable to the consideration of whether a forensic disadvantage direction ought to be given.
In the present case, we consider that the various forensic disadvantages identified above, while individually not rising to the level of ‘significant’, resulted in a significant forensic disadvantage when considered cumulatively. The delay was extensive — some 20 years. Given the nature of the allegations, there were limited avenues for the applicant to test PB’s account of events. The effect of the delay between the events and the trial meant that those avenues were even more limited than would usually be the case. PB’s own recollection was impaired, her grandmother could not be effectively cross-examined, and PB’s mother was dead.
The respondent submitted that the applicant did have the opportunity to explore the circumstances of the offending. His counsel cross-examined PB about the unlikelihood of her account, including by reference to specific details concerning the incidents in question, her movements at relevant times, and whether the applicant was circumcised. The applicant had the opportunity to impugn PB’s credibility and her reliability — an opportunity that he exercised, in particular by reference to her criminal history including her conviction for making a false statement to police. The applicant had made various statements in the record of interview upon which he relied to challenge PB’s account. He had the opportunity to give evidence of his version of events, if he wished to do so. He had the opportunity to cross-examine other witnesses about matters such as the layout of the houses and whether there was a lock on the bathroom door. He exercised that right, albeit not in relation to the lock on the bathroom door, after it emerged that PB’s grandmother’s evidence would not assist him.
Ultimately, however, those matters do not negate the forensic disadvantages the applicant experienced as a result of delay. The fact that the applicant had some opportunities to test the allegations, and to impugn PB’s credibility, does not mean that he did not also experience a significant forensic disadvantage as a result of the other matters identified.
Returning to the principles set out in Robbins, we consider that:

(a)the disadvantages the applicant experienced occurred because of the consequences of delay between the alleged offence and the trial;
(b)the disadvantages were of a forensic nature — that is, they were suffered by the accused in challenging and adducing evidence and in conducting the accused’s case;
(c)the various disadvantages cumulatively constituted a signiﬁcant forensic disadvantage; and
(d)the applicant has established that the consequences of delay give rise to a signiﬁcant forensic disadvantage, by identifying the particular risks of prejudice which constituted the signiﬁcant forensic disadvantage.

For these reasons we consider that the judge erred in refusing to give a forensic disadvantage direction. Even if the matters were more finely balanced, there were no good reasons not to provide the direction that had been sought. The judge’s failure to do so resulted in a substantial miscarriage of justice.

Conclusion

For the foregoing reasons, we would grant leave to appeal and allow the appeal. The applicant’s convictions should be set aside and a new trial ordered.

MACAULAY JA:

I have had the considerable advantage of reading in draft the reasons of Niall and Walker JJA. I have reached a different conclusion and, although I would grant leave to appeal, I would dismiss the appeal. Because of the comprehensive way in which the majority have set out the facts, principles and the submissions of the parties, all of which I gratefully adopt, I can be brief in explaining my reasons for coming to a different conclusion.
I agree with the majority that, of the seven matters put forward as constituting aspects of the significant forensic disadvantage,[25] the lack of any medical material and absence of other forensic material are not matters that give rise to any forensic disadvantage as a consequence of delay.
[25]See above, [49].
Unlike the majority, I would also add to that list the lack of opportunity to explore the circumstances of the alleged offending and the lack of information about the whereabouts of other witnesses during the alleged offending.

In PT v The Queen,[26] this Court emphasised that a hypothetical, general or nebulous disadvantage to the applicant will not be sufficient to establish a significant forensic disadvantage arising from delay. Instead, the particular risks of the prejudice must be identifiable.[27] The Court accepted, however, that the significant forensic disadvantage may be identified as a matter of ‘necessary inference’.[28] These principles were further endorsed by this Court in Robbins v The Queen.[29] In Robbins, this Court also noted the emphasis in PT for the ‘need for precise identification’ of the forensic disadvantage. Such disadvantage is not to be found in matters as to which ‘there could be no confidence that the defence case would have been assisted had an earlier complaint been made’.[30]
[26][2011] VSCA 43 (‘PT’).
[27]Ibid [25] (Maxwell P, Buchanan and Weinberg JJA).
[28]Ibid [27] (Maxwell P, Buchanan and Weinberg JJA).
[29](2017) 269 A Crim R 244, 267–8, [176], 270–1 [186] (Tate, Whelan JJA and Macaulay AJA); [2017] VSCA 288.
[30]Ibid 268 [177] (Tate, Whelan JJA and Macaulay AJA).
For my part, I do not find this Court’s statements in Lucciano v The Queen[31] to be of real assistance. That case did not concern a significant forensic disadvantage direction but, rather, the question of whether a trial held 56–7 years after the alleged events — and following a more recent civil trial about those events — could be fair at all. Bearing that context in mind, statements made in that case about presumptive unfairness arising from the loss of opportunity to obtain evidence do not directly translate to the identification of a significant forensic disadvantage for the purpose of s 39 of the Jury Directions Act 2015.
[31](2021) 287 A Crim R 529; [2021] VSCA 12.
Returning to the present matter, it is to be recalled that at the time of the alleged offending PB was between eight and 11 years of age. On her account, the offending only stopped when, at about the age of 12, she warned the applicant that she would tell about his actions if he continued. Even if a complaint had been made relatively soon after the three or four year period of offending, it is mere speculation as to whether PB might have been able to give any more detail than she ultimately gave, years later, about the specific dates or times of the offending.
It is common experience that when giving an account of sexual offending against them, even soon after the occasions of offending, young children are often only able to give broad and non-specific descriptions of the times of the offending. Commonly, children are not able to say more than that it was ‘in the summer holidays’ or ‘around Easter time’, or some such description. Had PB been asked to give an account of the times and dates of the offending within a year or so of it ceasing, there is no reason at all to be confident that she would have been able to give more detail than she in fact gave.
In substance, the reason for the lack of specificity in identifying dates is not because of delay but, more likely, because the alleged offending was against a young child and went undetected over a period of years.
The answer is much the same in relation to the applicant’s inability to test PB’s evidence because her recollection of some aspects of the offending and the surrounding circumstances was affected by delay. Rather than being the consequence of delay, PB’s uncertainty about or inability to recall things — such as whether her siblings or mother were present — is, again, more likely the product of PB being a young child, and of the fact that the alleged offending is said to have occurred over a period of three or four years.
In my opinion, no evidence in this case demonstrates either directly or by way of necessary inference that the defence case would have been assisted by PB being able to recall events in any greater detail than she could in 2021, whether or not her mother or siblings were present on any of the occasions when the offending was said to have been committed. PB was able to say that her older sister was present on one occasion. In evidence, her sister said she was very close to PB, did not notice anything out of the ordinary occurring on any of their visits to their grandparents’ house, and had no idea of the alleged offending until told about it in 2021.
To discharge the onus of showing that a forensic disadvantage arose ‘because of the consequences of the delay’, some evidentiary foundation had to be laid to suggest that proof of the presence of PB’s mother, her siblings or some other witness would have likely yielded some forensic advantage to the defence case. Without it, the so-called inability to contrast what others saw or heard — on occasions of otherwise no particular moment — is entirely speculative. No necessary inference of forensic disadvantage arises at all.
The nature of the alleged offending was secretive sexual abuse in a house while at least one other person (PB’s grandmother) was present, in otherwise completely mundane circumstances. Offending of this nature leaves little or no discernible footprint other than in the mind and memory of the victim. There is little or no reason to suppose that, had PB been able to say that her mother or siblings were present during the offending, and they were then asked some questions about the occasions, their answers would have assisted the applicant beyond what PB’s sister said — namely, that nothing out of the ordinary happened. Indeed, the probabilities are against it. Clearly, PB’s revelation to her aunt and sister in 2021, and the police’s notification to PB’s grandmother around the same time, came as a complete surprise to them all.
The applicant’s limited ability to challenge the prosecution case other than by denial lay in the very nature of the alleged offending.
As for the inability to adduce or challenge evidence in relation to the noisy water pipes, in my view the applicant’s counsel was correct to concede that that issue was a minor one.
This brings me to the last factor said to constitute an aspect of the significant forensic disadvantage — namely, that PB’s mother died before PB made her complaint. Amongst the matters raised by the applicant, this is the most viable candidate for having caused a significant forensic disadvantage.
The proposition must be that, as a consequence of the delay, the trial has taken place after the death of an important witness to the events or, at least, to circumstances surrounding the events. But, on what evidentiary foundation might it be said that PB’s mother was an important witness?
PB did not say that she ever told her mother of the alleged events. In fact, she said she did not tell her mother or any other adult until she told her sister and aunt in 2021.
Whether or not PB’s mother was at the house on the occasions of the visits remains a matter of speculation. Apparently, PB’s mother had a strained relationship with her mother, PB’s grandmother. Equally speculative, and indeed unlikely, is whether PB’s mother observed anything about her daughter that concerned her during or after PB’s visit to one of the houses. PB did not say that her mother ever expressed concern for her after she returned from her grandmother’s house on any occasion. The grandmother did not say that PB raised any concern. PB’s sister did not say that their mother raised any concern about PB’s visits to the grandmother’s home.
Assuming the offending occurred as PB described it, it was clearly possible for it to have occurred while others were in the house because, on her evidence, others were at the house during the offending. Although establishing that the mother was also present might have been useful, there is no positive reason to believe that it would have been. So far as inference goes, the more likely inference is that she would not have been able to say anything useful.
Acknowledging that it is possible to identify, by necessary inference, important evidence that has been lost as a consequence of delay, no such evidence was identified in this case. At the highest, it can only be said that PB’s mother might have been able to say something had she been available to be called. But that rises no higher than speculation or hypothesis.
Parliament intended that a direction concerning a significant forensic disadvantage be given only if the trial judge is satisfied that the accused has experienced a significant forensic disadvantage. In other words, it is not a sufficient justification for giving such a direction that there is no good reason not to do so. In my opinion the judge was correct not to be satisfied that the applicant had experienced a significant forensic disadvantage because of the consequences of delay between the alleged offences and the trial.
As stated, I would give leave to appeal but dismiss the appeal.
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[2024] VSCA 207

19 September 2024