McGee (a pseudonym) v The Queen

[2020] VSCA 146

Victorian Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Interlocutory appeal
4. › Permanent stay of proceedings
5. › Historical sexual offences
6. › Delay of 55 years between alleged offending and trial
7. › Whether deceased witnesses central or peripheral to defence case
8. › Whether significance of lost evidence to be assessed by reference to defence case
9. › Whether rare and exceptional circumstances established
10. › Criminal Procedure Act 2009 (Vic), s 295(3)(b)
1. Practice and Procedure
2. › Abuse of process
3. › Permanent stay
4. › Delay
5. › Historical sexual offences
6. › Unavailability of witnesses through death
7. › Lost opportunity for defence
8. › Whether forensic disadvantage warning could cure prejudice
9. › Whether combination of factors rendered trial unacceptably unfair

Quick Take

Defence practitioners in historical sexual offence cases should frame the significance of deceased witnesses by reference to the defence case theory, not the complainant's account, and should emphasise the combination of factors including delay, lost witnesses, contradictory prosecution evidence, and relative seriousness of offending.