Dates specified in an indictment are immaterial averments that cannot be made material by the mere pleading of the parties or by prosecutorial concession; a court cannot be required to try an issue incompatible with the law as current and applicable at the relevant time. An applicant for a permanent stay should generally be required to verify his position by evidence rather than relying on unsworn instructions conveyed through a solicitor. The question whether consensual adult homosexual acts in private constitute 'indecent assault' under the former s 81 of the Crimes Act 1900 (NSW) was raised but not resolved by the majority.
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