Under s 61(1A)-(1F) of the Crimes Act 1958 (Vic) and s 165B of the Evidence Act 2008 (Vic), an application by the accused is not an indispensable precondition to a forensic disadvantage warning; a trial judge retains the common law obligation to give directions necessary to avoid a perceptible risk of miscarriage of justice, but any such direction must comply with the statutory requirements. Post-conviction psychiatric reports prepared for compensation proceedings under s 85B of the Sentencing Act 1991 (Vic) may constitute fresh evidence where the complainant's account to the psychiatrist materially omits allegations central to the conviction. In historical sexual offence cases, forensic disadvantage from extreme delay — including the death of potential defence witnesses — is a relevant factor in assessing whether verdicts are unsafe and unsatisfactory, even where no forensic disadvantage direction was sought at trial.
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