Yovanovic v The King

In the case of Yovanovic v The King, the accused, Danny Yovanovic, faces charges of indecently dealing with a child under the age of 16. The proceedings involve an application for a permanent stay due to the alleged loss of critical evidence, specifically a second Child Forensic Interview (CFI) that was likely exculpatory. The complainant in question is ST, who has given multiple interviews over the years. The first CFI was exculpatory, and the police investigation was closed after the second CFI, which is now missing. Thirteen years later, a third interview was given by the complainant, implicating the accused. The primary legal issue is whether the missing second CFI, which might be inconsistent with the particulars in the indictment, would prevent the accused from receiving a fair trial. The focus of the trial will be on the credibility and reliability of the complainant's testimony.

The court needed to decide whether the missing second CFI, which may have been exculpatory, would significantly prejudice the accused’s right to a fair trial. Additionally, the court had to consider whether any unfairness caused by the missing evidence could be mitigated by providing specific directions to the jury. The court also needed to determine if the missing evidence warranted a permanent stay of the proceedings. Given that the prosecution’s case primarily relies on the complainant's testimony, the absence of the second CFI was a significant concern. The court considered that the second CFI might have been inconsistent with the particulars in the indictment and might have provided critical exculpatory information. Given the centrality of the complainant’s credibility, the court concluded that the missing evidence could not be mitigated by directions to the jury and thus warranted a permanent stay.

The court found that the missing second CFI, which was likely exculpatory, could not be replaced by collateral evidence, and its absence was likely to cause substantial unfairness. The court decided that the unfairness could not be mitigated by directions to the jury and that the missing evidence warranted a permanent stay of the proceedings. The court ruled that the accused could not receive a fair trial given the missing evidence and the reliance on the complainant’s credibility. Consequently, the proceedings were stayed. This ruling does not prevent the Director of Public Prosecutions from filing an amended indictment that omits the current counts 1 and 2 but includes the remaining counts. The court’s decision highlights the importance of ensuring that a fair trial is possible, especially in cases where the credibility of the complainant is paramount.