Newell (a pseudonym) v The King

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCR 2025 0022
DAVID NEWELL (A PSEUDONYM)	Applicant
v
THE KING	Respondent

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JUDGES:	TAYLOR, KIDD and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 June 2025
DATE OF JUDGMENT:	4 July 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 160
JUDGMENT APPEALED FROM:	[Newell] v DPP (Unreported, County Court of Victoria, Judge Lyon, 3 February 2025)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Child sexual offences – 37 to 40 year delay between alleged offending and proceedings – Permanent stay of indictment refused by trial judge –Whether incurable forensic disadvantage resulting from delay – Whether deceased witness akin to alibi witness – Evidence said to be lost merely contextual and speculative – Unfairness capable of amelioration by jury direction – Leave to appeal refused.

Criminal Procedure Act 2009, s 295.
Jury Directions Act 2015, ss 39, 47E, 52.

Morton (a pseudonym) v The Queen [2020] VSCA 49; Green (a pseudonym) v The Queen [2017] VSCA 277, referred to.

R v Glennon (1992) 173 CLR 592; Jago v District Court (NSW) (1989) 168 CLR 23; Dupas v The Queen (2010) 241 CLR 237; Walton v Gardiner (1993) 177 CLR 378, discussed.

Hermanus v The Queen (2015) 44 VR 335; R vFJL (2014) 41 VR 572; Buchanan (a pseudonym) v The King [No 2] [2024] VSCA 50; Lucciano (a pseudonym) v The Queen [2021] VSCA 12, followed.

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Counsel
Applicant:		Mr MS Habib
Respondent:		Mr AJ Grant
Solicitors
Applicant:	Docherty Legal
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

TAYLOR JA
KIDD JA
OSBORN JA:

The applicant is charged on indictment in the County Court with seven charges of child sexual offending in relation to two complainants. The offences are alleged to have occurred between 37 and 40 years ago.
On 28 January 2025 the applicant sought a permanent stay of the indictment before the trial judge. He contended that the proceedings were ‘unjustifiably oppressive in circumstances of delay and incurable forensic disadvantage, and in circumstances where proceeding with the same would bring the administration of justice into disrepute.’
On 3 February 2025 the judge refused the stay application.[1] On the same day the judge certified that the interlocutory ruling was of sufficient importance to the trial to justify it being determined on an interlocutory appeal pursuant to s 295(3)(b) of the Criminal Procedure Act 2009.
[1][Newell] v DPP (Unreported, County Court of Victoria, Judge Lyon, 3 February 2025) (‘Interlocutory Ruling’).
The applicant now seeks leave to appeal on the following sole proposed ground:
The learned trial judge erred in refusing to permanently stay the indictment, due to giving insufficient weight to the forensic disadvantage visited upon the applicant.
For the reasons that follow we would refuse the application.

Prosecution case at trial

The two complainants – LB and BS – were each born in 1976. In the 1980s they were students at a small primary school located in regional Victoria. The school had two classrooms and a separate room used for various purposes, including for music classes. About 20 students were enrolled. Between February 1985 and December 1987, when all of the offending is alleged to have occurred, the applicant was one of two teachers. He was then aged 30 to 33 years. The other teacher – JW – taught prep to either grade two or three, depending upon the enrolments. The applicant taught the remaining grades, either grade three or four to grade six. During his tenure at the school the applicant resided in a house on the school property.
The prosecution alleges that at the time of the offences the applicant was the classroom teacher of each complainant. The applicant agrees that he taught either grades three to six or grades four to six, depending upon enrolments, but does not admit that he was the direct classroom teacher of either complainant at the time of the alleged offending.

Summary of offending – LB

The first three instances of offending against LB are alleged to have occurred between 9 April and 19 December 1985.
(a)Charge 1 – indecent assault of a person under 16[2]
[2]Contrary to s 44(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On an unknown school day in the period of offending the applicant dismissed his class for lunch but asked LB to remain behind, ostensibly to discuss her handwriting. The applicant then placed his hand on LB’s vagina over her clothes.
(b)Charge 2 – sexual penetration of a child under 10[3]
[3]Contrary to s 47(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On another school day in the same time frame the applicant instructed LB, BS and another girl from the class to go with him to his house to collect musical instruments. They did so. The applicant gave BS and the other girl instruments to carry back but asked LB to stay. When left alone with LB the applicant exposed his penis and told LB she could touch it. LB refused. The applicant then pushed LB to her knees and inserted his penis into her mouth.
(c)Charge 3 – indecent assault of a person under 16
On a further, different school day in that time frame the applicant’s class was in the music room. The students were on their hands and knees singing a song that required certain physical actions. The applicant kneeled next to LB, reached under her and touched one of her breasts.
(d)Charge 5 – indecent assault of a person under 16
Between 8 September 1986 and 22 December 1987 the primary school gave a Christmas concert. During the concert LB was alone in the back room changing into her dress while all the other students were on stage. The applicant entered the room. He said ‘I’ve got you alone’, pushed LB back onto a small coffee table and kissed her on the mouth (uncharged act). As he did so he reached under her dress, moved her underwear aside and inserted his fingers into her vagina.
On four or five occasions throughout the period of offending the applicant told LB that she would not be believed if she told anyone about his behaviour and that she would get into trouble if she did.
LB first made a complaint to police in 2022 after receiving a letter from the informant stating that police were investigating matters at the primary school. LB disclosed the allegations in respect of charges 1, 2 and 3 in a statement dated 11 August 2022. LB made a further statement dated 27 November 2023[4] in which she disclosed the allegations in respect of charge 5.

Summary of offending – BS

[4]This was the date the committal proceeding was first listed. As a result of LB’s second statement the committal was adjourned to 19 February 2024. A further consequence of this statement was that the allegations concerning the applicant’s conduct at the Christmas concert (charge 5) were not put to him in the record of interview which was conducted on 29 November 2022.

The applicant was part of the social circle of BS’s parents and a frequent, sometimes overnight, visitor to their home. The applicant’s house was about two kilometres away. On one occasion, the applicant was invited to join BS’s family on a holiday to the Gold Coast. BS was often invited by the applicant to his house to play on his computer and encouraged by her mother to go.
(a)Charge 4 – indecent assault of a person under 16
On an unknown weekend morning between 2 May 1986 and 13 July 1987 BS was alone in the family home lying in bed. Her parents were attending to farming tasks and her brother was out. The applicant, who had stayed the previous night, entered BS’s bedroom and lay down on her bed. He slid his hand up and under her nightie before penetrating her vagina with his fingers.
(b)Charge 6 – sexual penetration of a person aged between 10 and 16[5] and charge 7 – indecent assault of a person under 16
[5]Contrary to s 48(1) of the Crimes Act 1958, as amended by the Crimes (Sexual Offences) Act 1980.
On an unknown afternoon between 1 January 1987 and 13 July 1987 BS went to the applicant’s house. She sat on the couch. The applicant stood before her and exposed his penis, instructing her to ‘lick it, kiss it, suck it’, before he introduced his penis into her mouth . The applicant then removed BS’s T shirt and fondled her breasts .
In 2021 BS complained about the applicant to her father, brother and JW.

Record of interview

The applicant participated in a record of interview (‘ROI’) with police on 29 November 2022. He answered contextual questions concerning his tenure at the primary school. He said, for instance, that he taught years three to six, lived alone in the school house and the school was small and had three classrooms. The younger children were taught in a portable building and there was an old room used as a general purpose room. The applicant was shown various photographs of the school in its current condition. He said that it had changed considerably. When asked about a music room the applicant said that he could only assume it was the general purpose room, as it was the only other building. When shown photographs of the students and teachers from the relevant period, the applicant was able to recall the names of a large number of the students. The applicant said that he would ‘go around for tea’ to home of BS’s parents but did not recall ever staying overnight.
When the specific allegations of offending against LB and BS were put to him, the applicant largely gave ‘no comment’ responses. He said he was doing so on legal advice. Occasionally he would specifically deny an allegation and, at various times, termed the allegations ‘ludicrous’ and ‘nonsense’.

The stay application

The application for a permanent stay of the indictment was based upon six matters which the applicant argued amount to, in combination, ‘significant and incurable’ forensic disadvantage. The trial judge dealt with these matters as ‘grounds’ 1 to 6.
First, a delay of over 35 years. This was argued to deprive the applicant of any possibility of a positive defence because neither he nor any witness could know what had been forgotten. This submission was based on the following observation of this Court in Morton (a pseudonym) v The Queen:
As a matter of common experience, the passage of up to 56 years since the commission of an alleged offence cannot but diminish memory and render unavailable documents and other independent evidence that create a context which assists in the recollection or reconstruction of relevant events. The problem is not only that relevant events cannot be recollected accurately but also that there is no longer any awareness — even of a vague nature — of the existence of previously known events which might be significant in the defence of an accused.[6]
[6](2020) 281 A Crim R 307, 330 [134]; (Beach and Kyrou JJA); [2020] VSCA 49 (‘Morton’).
Second, the death of BS’s mother. It was put that the deceased witness would have been able to give ‘extensive evidence’ as to the ‘positive’ relationship between the applicant and BS at the relevant time. The applicant argued that the absence of this evidence meant that he was unable to test the assertions of BS that, as a result of the offending, she had become nervous around him.
Third, the absence of school records detailing whether LB was in the applicant’s class at the relevant time. LB said that she believed she was in grade three when the offending (excluding that at the Christmas concert) happened because her brother, three years older, was in grade six. LB’s brother gave evidence that he was never in the same composite class as LB with the applicant as their teacher. The applicant argued the absence of the school records meant that he could not establish that the offending, as described by LB, did not occur.
Fourth, the applicant cannot ascertain which mother or female teacher may have been a chaperone in the changing room of the 1986 or 1987 school Christmas concert. It was argued that the applicant could not therefore run a positive defence of impossibility or improbability with respect to charge 5.
Fifth, any evidence that the applicant could have called to rebut the allegations is no longer accessible to him.
Sixth, the recollection of the witnesses is significantly adversely affected by the passing of time.
The applicant further argued that no evidentiary ruling nor jury direction would be sufficient to ameliorate the prejudice to his trial. Specifically, the applicant argued that this Court clearly expressed that ‘such an extreme delay’ went beyond the prejudice that could be sufficiently cured by a forensic disadvantage direction. Again this submission appears to draw upon Morton in which a 56 year delay was described as ‘extreme’.[7]
[7]Ibid, 329–330 [133] (Beach and Kyrou JJA).

The interlocutory ruling

The judge addressed grounds 1, 5 and 6 together as they were all different expressions of the presumptive prejudice inherent in a 35 year delay between alleged offending and trial. Both High Court authority and decisions of this Court were said to establish that ‘delay of itself will almost never, and if so, then rarely’[8] be sufficient to found a permanent stay of proceedings. With reference to both Hermanus v The Queen[9] and R v FJL[10] the judge said that what is required is not a perfect trial but one where the delay is not such as to cause unacceptable fairness.[11]
[8]Interlocutory Ruling, [48].
[9](2015) 44 VR 335; [2015] VSCA 2 (‘Hermanus’).
[10](2014) 41 VR 572; [2014] VSCA 57 (‘FJL’).
[11]Interlocutory Ruling, [28], [49], [58].
The judge considered ground 1 in particular to be ‘introductory’ because it said nothing specifically about the case or the disadvantage actually suffered by the applicant.[12]
[12]Interlocutory Ruling, [53].
The only particularisation of ground 5 identified by the applicant was that in common with ground 3, namely missing school records which could establish whether LB was a student in the applicant’s class at the relevant time. On that issue the judge considered that other evidence as to interaction between LB and the applicant was available. It could be established that both LB and BS were students and the applicant and JW teachers at the regional primary school during the period covered by the indictment. The school had a student population of about 20 students. The judge found it was therefore different from a metropolitan school with a student population of 2,000 in which two students could be ‘lost’ amongst others and be potentially unknown to the teachers.[13]
[13]Interlocutory Ruling, [54].
With respect to ground 6, the judge accepted that the recollection of witnesses is significantly affected by the passage of time as ‘inevitably true’. [14] With reference to Green (a pseudonym) v The Queen,[15] the judge said there was a difference between the absence of important witnesses who could potentially have played a material role in the defence of the charges and the mere dulling of memory.[16]
[14]Interlocutory Ruling, [56].
[15][2017] VSCA 277.
[16]Interlocutory Ruling, [32].
Accordingly, the judge considered that grounds 1, 5 and 6 were not made out.
For the same reasons the judge found that ground 3 was not made out. The judge noted that although, in the absence of the school records, it could not be established the particular grade LB was in at the time of offending, the state of the evidence did not need to be perfect.[17]
[17]Interlocutory Ruling, [58].
Turning to ground 2 the judge said that it contained two assumptions about the evidence that would have been given by BS’s mother about the relationship between her daughter and the applicant: that it would have been both ‘extensive’ and descriptive of a ‘positive’ relationship.[18] Nonetheless the judge considered this ground to have the most merit because ‘BS states in effect that she was a reluctant visitor’[19] to the applicant’s house and ‘attended on her mother’s insistence’.[20] The judge found that it was possible that BS’s mother might have given evidence as to whether she sent her daughter to the applicant’s house and her motivation for so doing as well as evidence relevant to the credibility of BS’s description of her relationship with the applicant. As the alleged offending occurred when BS and the applicant were alone, however, the judge found it unlikely that BS’s mother could have given any evidence about it. As the ground was based entirely on speculation as to what BS’s mother might have said, the judge found that ground 2 was not made out.
[18]Interlocutory Ruling, [59]–[60].
[19]Interlocutory Ruling, [60].
[20]Interlocutory Ruling, [60].
With respect to ground 4, the judge found that it was speculative as to whether there was a mother or female teacher present to chaperone the girls’ changing room at the Christmas concerts and, if so, the nature of the their duties.[21] It followed that the ground was not made out.
[21]Interlocutory Ruling, [64].

Application for leave to appeal interlocutory ruling

Applicant’s contentions

In this Court the applicant largely rehearsed the arguments previously made to the trial judge in grounds 1 to 6. There was, however, some reformulation and shift of emphasis in those arguments. The applicant relied upon five matters which he said the judge had erred in giving insufficient weight to, as well as their combined effect:
(a)the delay of 37 to 39[22] years;
(b) the death of BS’s mother;
(c) the unavailability of school records;
(d)the forensic disadvantage arising from the inability to cross examine the ‘school chaperones’ or mothers said to be ‘present or in close vicinity’ during the Christmas concerts;
(e)the significant adverse effect to the recollection of ‘a number of witnesses’ due to the passing of time; and
(f)the combined effect of (a) to (e).
[22]The earliest date alleged on the indictment is February 1985, now 40 years ago. At the time of the application to the trial judge, the figure of 39 years was correct.
We will address each matter as a ‘sub-ground’ of the sole proposed ground of appeal. We note that sub-grounds (a) to (d) are in substantially the same terms as grounds 1 to 4 before the trial judge and sub-ground (e) is substantially the same as ground 6. Ground 5 was not relied upon in this appeal.

In oral argument, the applicant submitted that sub-grounds (b) and (d) were the most important. Sub-ground (c) was also emphasised. The applicant conceded that if the prejudice arising from the delay was presumptive only, that prejudice could be sufficiently ameliorated by judicial direction. The main thrust of the applicant’s argument was that the death of BS’s mother, the inability to call any chaperones to give evidence and — to a lesser extent — the absence of the school records, in the context of the significant delay, deprived him of the opportunity to run a positive defence.

The applicant argued that BS’s mother was akin to an alibi witness. This was argued on the basis that she could have given material evidence as to whether she ever sent BS alone to the applicant’s house. It was argued that if she did not, the offending alleged in charges 6 and 7 could not have occurred. The applicant submitted that BS’s mother’s evidence was crucial in light of the committal evidence of BS’s father who had said in cross-examination that he did not send BS to spend time in the applicant’s house alone and, in re-examination, that it was possible that his wife might have sent BS to do so without his knowledge. The observations of BS’s mother of BS’s behaviour around the applicant were also said to be material to his ability to test the credibility of BS’s assertion that she was nervous around him.

The inability of the applicant to identify any of the chaperones alleged to have been present at the Christmas concerts was similarly argued to be significantly material in light of certain evidence given at the committal. The applicant argued that the evidence established that he was ‘directing’ the concert and was front of house whilst unknown mothers were providing assistance in the girls’ change rooms at the back. It was put that he suffered a material disadvantage in not being able to lead evidence from those actually present that made it highly improbable, if not impossible, that the offending alleged in charge 5 could have occurred.
The unavailability of the school records was said to affect two aspects of the evidence. First, the applicant’s ability to determine if he was LB’s teacher while she was in grade three and, therefore, whether the offending alleged in charges 1, 2 and 3 occurred. Second, whether there was a ‘music room’ at the school at the relevant time and, therefore, whether the offending alleged in charge 3 occurred.
Respondent’s contentions
The respondent contends that the delay in the applicant’s trial is not extreme and the specific matters of prejudice relied upon by the applicant involve nothing more than the purported loss of contextual evidence. Accordingly, there will be nothing impermissibly unfair in the applicant’s trial. The prejudice he suffers as a result of the delay is capable of amelioration by judicial direction and evidentiary rulings. To the latter extent, the respondent noted that in the interlocutory ruling the judge excluded certain evidence (given by observers) of an interaction between the applicant and BS that the prosecution had intended to lead as an uncharged act.
As to the mother of BS, the respondent said that it was entirely speculative what she might say about whether she did or did not send BS to the applicant’s house alone. And, there was other evidence, including from BS’s father, as to BS’s behaviour around the applicant.
The respondent argued that the ‘chaperone issue’ should be characterised as the loss of an opportunity to obtain evidence rather than the loss of material evidence. Accordingly, it, too, was a matter of mere speculation.
In short, the respondent argued that the state of the evidence did not prevent the applicant from arguing to the jury that any particular alleged offence was improbable or impossible. The applicant is not in a position where all he can do is make a bare denial.

Legal principles

A permanent stay of serious criminal proceedings will only be ordered in an extreme case.[23] A court will only stay an indictment if its continuation would involve unacceptable injustice and unfairness or would be so oppressive as to constitute an abuse of process.[24] Potential unfairness arising from delay occurring between the date of alleged offending and the date of trial will not be sufficient of itself to justify a stay of the proceeding.
[23]R v Glennon (1992) 173 CLR 592, 605 (Mason CJ, Toohey J); [1992] HCA 16; Jago v District Court (NSW) (1989) 168 CLR 23, 34 (Mason CJ); [1989] HCA 46 (‘Jago’); Dupas v The Queen (2010) 241 CLR 237, 245 [18] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20 (‘Dupas’).
[24]Walton v Gardiner (1993) 177 CLR 378, 392 (Mason CJ, Deane and Dawson JJ); [1993] HCA 77.
The applicant must show that the consequences of the delay are such that he or she cannot obtain a fair trial. The defect in the trial must be such that nothing a trial judge can do in the conduct of the trial can relieve against its unfair consequences.[25]
[25]Dupas (2010) 241 CLR 237, 245 [18], 250 [35] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20; Jago (1989) 168 CLR 23, 34 (Mason CJ); [1989] HCA 46.
This rule is underpinned by considerations which are fundamental to the Australian legal system:
(a)public confidence in the administration of justice requires resolution of allegations of serious criminal behaviour by due process save in exceptional circumstances;[26]
(b)in the first instance, it is for the Crown not the Court to determine whether a criminal proceeding should be instituted;
(c)it is the jury (not the judge) which is the constitutional judge of the facts in serious criminal cases;[27] and
(d)Australian law does not recognise a special right to a speedy trial or trial within a reasonable time as distinct from the right to a fair trial.[28]
[26]Jago (1989) 168 CLR 23, 33 (Mason CJ); [1989] HCA 46; Dupas (2010) 241 CLR 237, 251 [37] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.
[27]Dupas (2010) 241 CLR 237, 249–50 [32] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); [2010] HCA 20.
[28]Jago (1989) 168 CLR 23, 33 (Mason CJ), 70–72 (Toohey J); [1989] HCA 46.
Thus the law contemplates that a fair trial may be achieved despite significant delay since the occurrence of the facts in issue. The applicable test falls to be applied in circumstances where:
(a)the effect of delay in a particular case is a quintessential matter of fact;
(b)the general consequences of delay upon the reliability of recollection and many aspects of circumstantial evidence are matters with which a jury of 12 will necessarily have had some life experience; and
(c)the Jury Directions Act 2015 (‘JDA’) specifically provides for the giving of directions with respect to forensic disadvantage which are appropriate for the case at hand.[29]
[29]JDA, s 39.
The trial judge correctly identified the fundamental principles by reference to Hermanus (referring to FJL[30]):[31]
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.[32]
[30]FJL (2014) 41 VR 572, 575–7 [17]–[26] (Osborn JA, Redlich JA agreeing at 589 [90], Sifris AJA agreeing at 589 [92]); [2014] VSCA 57.
[31]Interlocutory Ruling, [29].
[32](2015) 44 VR 335, 342 [40] (citations omitted); [2015] VSCA 2.
In Buchanan (a pseudonym) v The King [No 2], this Court addressed the manner in which the consequences of delay must be assessed in a case such as the present.
Any assessment of whether exceptional circumstances warranting a permanent stay exist is a qualitative, not quantitative, exercise. In cases involving significant delay, the fairness of a trial will almost invariably be compromised at least to some degree. However, despite the presence of some unfairness, prejudice or forensic disadvantage, it remains possible for an accused to receive a trial that is not unacceptably unfair. The central considerations remain whether the delay has rendered the trial unacceptably unfair or the further prosecution of the case would amount to an abuse of process.
Where an application for a permanent stay is made on the basis that loss of evidence due to delay has resulted in a trial being unacceptably unfair, it is necessary to consider the value or importance of the lost evidence and its effect on the issues in dispute. In this regard, a distinction can be drawn between a loss of evidence as a result of delay on the one hand, and a loss of an opportunity to obtain evidence on the other. Where all that has been lost is an opportunity to obtain evidence from a witness or documentary record, the content of such evidence may be a matter of complete speculation and not constitute actual prejudice.
Further, the unavailability of a witness, even a witness a party considers to be important, does not necessarily mean that a trial will be unacceptably unfair. In many cases where a witness is no longer available as a result of delay, unless that witness could have offered eyewitness or alibi evidence, the content of any evidence they might have given will often be speculative or no more than contextual in nature, or both.
Naturally, the facts of each case must be carefully considered. However, where lost evidence is properly characterised as contextual or speculative, it is less likely that any resulting unfairness will rise to the level of unacceptable. Instead, any unfairness arising from presumptive prejudice will usually be able to be remedied by an appropriate direction to the jury. That said, even where the evidence which might have been given cannot be ascertained, the absence of a witness or witnesses may still result in prejudicial unfairness. In determining whether such a circumstance has arisen, the value of the lost opportunity must be assessed from the perspective of the defence. [33]
[33][2024] VSCA 50, [33]–[36] (Emerton P, Whelan JA and Elliott AJA) (citations omitted).
As the decision in Lucciano (a pseudonym) v The Queen makes clear, the significance of the loss of the opportunity to call contextual evidence will depend upon the factual matrix in a particular case.[34] In some cases, it may be apparent that the loss is potentially critical to a defence, in others the content of the potential evidence will be entirely speculative and its importance thus no more than arguably material.[35]
[34](2021) 287 A Crim R 529, [39] (McLeish, Niall and T Forrest JJA); [2021] VSCA 12.
[35]Ibid.

Discussion and analysis

In light of the applicant’s concession that sub-grounds (a), (e) and (f) solely give rise to presumptive prejudice, it is only necessary to specifically address sub-grounds (b), (c) and (d).

Sub-ground (b) – the death of BS’s mother

As is apparent — the emphasis in the applicant’s argument as to the significance of the evidence BS’s mother may have given — shifted. In the interlocutory ruling the potential evidence of a positive relationship between BS and the applicant following the alleged offending was emphasised. At the hearing of this application, however, the importance of evidence concerning the improbability or impossibility of BS being sent by her mother alone to the applicant’s house was stressed on the basis that it informed the opportunity for charges 6 and 7 to have occurred.
In her police statement BS said:
Often I went to [the applicant’s] house. He lived in the school house. Often when he was over, he would say, ‘I’m going back to my place, do you want to come?’ It was a rhetorical question. Mum would respond with, ‘well off you go’. There was nothing else going on with me at the time, nothing else I had to do, so I was just expected to go back to his house. Sometimes if my friend [name of friend] and I would be riding past [the applicant’s house] and [friend] would say, let’s go and see [the applicant].
I remember one afternoon, one weekend I went back to [the applicant’s] house with him, on my mother’s advice…
BS then detailed the offending relevant to charges 6 and 7.
At the committal hearing BS was asked if, when she visited the applicant’s house, other friends would be present. BS said that the majority of the time it was just her and the applicant. She was asked why she went alone. BS answered:
Um, suggestion of my mother. He would be coming back to our house for tea or something like that and Mum and Dad would be off milking and doing so on, and Mum would say to me well, why don’t you go … to [the applicant’s] house while we’re milking and come back after tea – well come back for tea.
BS said that such an occurrence would happen quite often, probably once a week on a weekend.
The following exchange occurred shortly thereafter.
DEFENCE COUNSEL:       Were there times where you – well, when your mother asked you to spend time with [the applicant], what would you say to her?
BS: I don’t know.
DEFENCE COUNSEL:       Pardon?
BS:   I’m not sure. I was doing what I was told.
BS agreed that she continued to spend time at the applicant’s house until the applicant left the town. She agreed that she felt anxious around him. BS said that she did not tell anyone that she did not want to spend time with him because ‘it would have raised questions as to why’. BS said that she did not say anything to protect her father. She thought that if her father had known of the offending there was a ‘fair chance that he just would’ve went round and shot him’.
The questioning returned to the role of BS’s mother in sending BS to the applicant’s house.
DEFENCE COUNSEL:       Was it usually at the request of your mother that you would go to [the applicant’s] house?
BS: Yes.
DEFENCE COUNSEL:       And were there ever times where you requested to go to [the applicant’s house]?
BS:  No.
DEFENCE COUNSEL:       Were there ever times when [the applicant] requested that you come to his house?
BS:  Yes.
DEFENCE COUNSEL:       And who would he make that request of?
BS:   Um, my mother.
DEFENCE COUNSEL:       Were you present for those requests?
BS:   Probably.
DEFENCE COUNSEL:       Would you have a recollection of them?
BS:   Ah, not really…
BS said the only instance of offending she could recall at the applicant’s house was that alleged in charges 6 and 7. Later she said that after that offending she would avoid being one-on-one with the applicant. She said she felt anxious and nervous about the applicant and did not trust him, but if she was in a group situation she was fine. BS said that when she was in a group she enjoyed his company as they were friends.
In his police statement BS’s father said that BS had a lot to do with the applicant; he was pretty good with kids generally and they spent a lot of time together. He said that as far as he and his wife could see, it was a good relationship. His wife would often invite the applicant for tea.
In his committal evidence BS’s father said he did not know of BS visiting the applicant’s house unless the family was there for tea. He said that he did not think any of the kids used to go to the applicant’s house on their own. BS’s father said he definitely did not tell BS to ‘spend the day’ at the applicant’s house. He also said that BS seemed to enjoy the applicant’s company and did not seem resistant to spending time with him. In re-examination BS’s father said that there were times when his wife would look after the children without him and it was possible that she could have sent BS to the applicant’s house without his knowledge.
BS’s brother gave evidence at the committal that BS seemed to enjoy the company of the applicant and did not seem to avoid his company. He said that in the afternoon after school and also on weekends he would ride his motorbike or do farm chores with his parents while BS was in the house.
The combined effect of this evidence is that at the relevant time no member of BS’s immediate family saw anything untoward in the relationship between the applicant and BS or any behaviour by BS that would indicate anything had changed in her relationship with the applicant, and that there were hours of the day when BS was alone as her brother and parents attended to farm duties (or leisure activities in the case of her brother).
What additional evidence BS’s mother might have given about these matters is speculative. It could not materially impact a defence of improbability or impossibility to the offending alleged in charges 6 and 7. In particular, whatever evidence might have been given about whether or not BS’s mother requested BS to go to the applicant’s house during afternoon milking time, it remains the evidence that BS was usually alone for some hours. It is possible that she spent some of that time in the home of the applicant. Even if BS’s mother could not remember or denied telling BS to go to the applicant’s house, that evidence did not make the offending either improbable or impossible or necessarily critically damage BS’s credibility. What a child perceived as a direction to be unquestionably complied with might have been perceived as something else by the parent giving the direction, and entirely unmemorable.
It follows that BS’s mother is not akin to an alibi witness. She could give no evidence as to the offending alleged or the occasion on which it occurred. Her evidence would be no more than contextual as to the general whereabouts of BS in the hours after school and before tea when the milking was undertaken (and the similar hours on the weekend) and whether she ever sent BS to the applicant’s house during those periods. No known or actual evidence has been lost.
To the extent that BS’s mother might have given evidence as to the ‘positive’ relationship between BS and the applicant at the relevant time, that speculative evidence is in keeping with the evidence already available to the applicant. In any event BS herself said that she felt nervous of the applicant only when she was alone with him and made no complaint to anyone at the time for fear of what her father might do. Further, it is to be remembered that the jury will be given directions pursuant (at least) to ss 47E and 52 of the JDA as to responses to a non-consensual sexual act and delays in complaint respectively.
Sub-ground (b) is not made out.

Sub-ground (d) – concert chaperones

The applicant’s sub-ground (d) is founded in ‘unavailable evidence’ said to make it either improbable or impossible for charge 5 to have occurred. His contention that there were chaperones in the girls’ changing room, however, is not made out on the evidence. The highest the evidence reaches is that during the Christmas concerts there were, at times, mothers assisting the girls to change.
BS’s father said in his committal evidence that the concerts were in the local hall. The children would sing songs and perform a play. He said that there were costume changes and some of the mothers would have helped the children change their costumes. He agreed that the applicant and JW would be out the front with the students and mothers out the back helping the students change.
CR, a student at the school at the relevant time, said at the committal that the costume changes happened in the back room. There were separate rooms for boys and girls. She said that in the girls’ room ‘one particular mum was in there with us the majority of the time’. Other mothers came into the room also. She was asked if the mum was helping with costume changes, chaperoning or organising. CR said that the mum was organising. She explained that the costumes were fairly simple, so it did not take much to change. A little later she said that there was always a mother or female teacher, when there was a female teacher employed at the school, in the room.

JW in his committal evidence said that he and the other teacher would be involved in the organisation of the Christmas concert. He said that it took place in the local hall and there were separate changing rooms for the girls and boys. JW said that he had no recollection as to whether there was a mother in the girls’ room to supervise them. He said that he did not really remember but it seemed reasonable that he and the applicant would have been involved in ‘corralling the students on stage and organising each performance one after the other in the front of the stage’.
The effect of this evidence is that the applicant was involved front of house, but control of the performance was not his sole responsibility, whilst, at times, there was a mother occasionally in the girls’ changing room organising the young girls while they changed in and out of costumes. There is no evidence that there was a chaperone stationed permanently in the changing room. None of the evidence makes it impossible that for a brief period the applicant entered the girls’ changing room and chanced upon LB alone. Further, at a school concert, it is a matter of common experience that attention would be directed to the performance on stage and not on the movements of the applicant, a single child or another adult. It follows that the inability to identify the ‘mum’ or ‘mums’ that were assisting in 1986 and 1987 (there being no female teacher at the time) does not impact the ability of the applicant to argue at trial that the offending alleged was improbable or impossible. It was certainly brazen, but the experience of this Court is that brief, brazen sexual offending against children is not uncommon.
Sub-ground (d) is not made out.

Sub-ground (c) – school records

School records are determinative of nothing in the applicant’s trial. Even if LB is mistaken as to being in grade three and in the applicant’s class with her brother when the offending relevant to charges 1, 2 and 3 occurred, given the size of the school and the interaction between two teachers and about 20 children, the incidents described by LB could have occurred. In any event the date is not an element of the offences charged. Further, the applicant himself in the ROI stated that there were two classrooms and a general purpose room at the relevant time. It is entirely possible that LB termed the general purpose room the ‘music room’.
Sub-ground (c) is not made out.

Conclusion

It follows that the prejudice to the applicant resultant of what is now a 37 to 40 year delay is presumptive only. It will not render his trial unacceptably unfair. While the dulling of memory is inescapable with the passage of time, memory retains some detail, as demonstrated by the applicant recalling student names in the ROI. What prejudice he does suffer is capable of sufficient amelioration by a forensic disadvantage direction and, if necessary, other evidentiary rulings.
The decision of the trial judge to refuse the application for a permanent stay was correct.
Leave to appeal the interlocutory ruling is refused.

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[2025] VSCA 160

4 July 2025