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Newell (a pseudonym) v The King

Newell (a pseudonym) v The King

Case [2025] VSCA 160 4 July 2025

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Newell (a pseudonym) v The King

Details

AGLC: Newell (a pseudonym) v The King [2025] VSCA 160
Case: [2025] VSCA 160
Decision Date: 4 July 2025

CaseChat Overview and Summary

The appeal in Newell v The King concerns the accused's challenge to the legality of proceedings against him for historical child sexual offences. The accused was charged with offences alleged to have occurred over 37 to 40 years prior. The Court of Appeal was asked to determine whether the trial judge should have permanently stayed the indictment due to the significant delay between the alleged offending and the prosecution. The appeal raises issues concerning the fairness of the trial and the admissibility of certain evidence given the length of the delay.

The primary legal issues addressed by the court were whether the delay resulted in an incurable forensic disadvantage and whether the deceased witness could be considered an alibi witness. The court also examined whether the evidence the prosecution claimed was lost was merely contextual and speculative, and if the unfairness caused by the delay could be ameliorated by appropriate jury directions. The court referenced previous cases such as Morton v The Queen and Green v The Queen to understand the impact of significant delays on the fairness of criminal trials.

The court found that the trial judge was correct in refusing to permanently stay the indictment. The court held that the delay did not result in an incurable forensic disadvantage and that the deceased witness was not an alibi witness. The evidence claimed to be lost was considered merely contextual and speculative, and the court concluded that any unfairness arising from the delay could be managed through jury directions. The court followed precedents such as Hermanus v The Queen and R v FJL, and also considered the relevant statutory provisions from the Criminal Procedure Act 2009 and the Jury Directions Act 2015. The appeal was dismissed, and no leave to appeal was granted.

The court ordered that the appeal be dismissed and no leave to appeal be granted. This decision affirms the trial judge's decision to proceed with the trial, subject to appropriate jury directions to manage any unfairness due to the delay. The accused's argument that the delay rendered the trial unfair was not upheld, and the proceedings will continue as scheduled.

Orders