A permanent stay of historical child sexual assault charges requires identification of specific forensic disadvantage that cannot be addressed by procedural measures, not merely presumptive prejudice from delay. Procedural alternatives including forensic disadvantage directions under s 165B of the Evidence Act 2008, exclusion of uncharged acts and complaint evidence, and severance of the presentment must be considered before a stay is granted. The death of witnesses whose evidence bears directly on the circumstances of alleged offending (here, grandparents in whose home the offending allegedly occurred) may constitute incurable prejudice justifying a stay of the specific count affected.
The full text is available to signed-in members, including the 21 later cases that cite this judgment.
13 of the 21 citing cases carry a classified treatment. How each court treated it is available to signed-in members.