The critical question on a stay application where evidence has been lost is not whether the accused has lost an opportunity to test the prosecution case, but whether the court's capacity to fairly assess the evidence has been so compromised that there is an unacceptable risk of miscarriage of justice. The court must consider: (1) the nature and strength of the remaining evidence; (2) the degree of acceptable risk, which varies with the nature of the offence and reasons for loss; and (3) the public interest in prosecution. Loss of evidence by persons unconnected to the police investigation is of little weight if there is no special difficulty in assessing the remaining evidence. The approach in Duncan v Crews is preferred to that in Bourke.
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