A forensic disadvantage direction under s 61 of the Crimes Act 1958 (Vic) or s 165B of the Evidence Act 2008 (Vic) must do more than identify that evidence is unavailable — it must spell out the consequences for the accused's capacity to defend, including how the missing evidence might have assisted the defence and the effect on the burden and standard of proof. The direction must be emphatic. A representation made 12 years after alleged sexual offending, without evidence of continuous revival or particular reason for the memory remaining fresh, does not satisfy the 'fresh in the memory' requirement under s 66(2) of the Evidence Act 2008. However, a deliberate forensic decision by trial counsel not to object to such evidence will preclude appellate relief.
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