In historical child sexual offence cases with significant delay, forensic disadvantages that individually do not rise to the level of 'significant' may cumulatively constitute a significant forensic disadvantage warranting a direction under s 39 of the Jury Directions Act 2015 (Vic). However, the absence of medical or forensic material does not constitute a forensic disadvantage as a consequence of delay where the window for obtaining such material was only hours or days — such disadvantage arises from the absence of an immediate complaint, not from the delay addressed by s 39. The dissent highlights the competing view that disadvantages attributable to the nature of the offending (secretive abuse of a young child) rather than to the delay do not engage s 39.
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