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165B. Delay in prosecution

165B. Delay in prosecution

(1) This section applies in a criminal proceeding in which there is a jury.

(2) If the court, on application by the defendant, is satisfied that the defendant has suffered a significant forensic disadvantage because of the consequences of delay, the court must inform the jury of the nature of that disadvantage and the need to take that disadvantage into account when considering the evidence.


Subsection (2) differs from the New South Wales Act.

(3) The judge need not comply with subsection (2) if there are good reasons for not doing so.

(4) It is not necessary that a particular form of words be used in informing the jury of the nature of the significant forensic disadvantage suffered and the need to take that disadvantage into account, but the judge must not in any way suggest to the jury that it would be dangerous or unsafe to convict the defendant solely because of the delay or the forensic disadvantage suffered because of the consequences of the delay.

(5) The judge must not warn or inform the jury about any forensic disadvantage the defendant may have suffered because of delay except in accordance with this section, but this section does not affect any other power of the judge to give any warning to, or to inform, the jury.

(6) For the purposes of this section-

(a) delay includes delay between the alleged offence and its being reported; and

(b) significant forensic disadvantage is not to be regarded as being established by the mere existence of a delay.


The New South Wales Act includes an additional subsection.

The term significant forensic disadvantage was considered by the Court of Appeal in PT v The Queen [2011] VSCA 43. The Court (Maxwell P, Buchanan and Weinberg JA in a joint judgment) quoted the joint view of the Australian, New South Wales and Victorian Law Reform Commissions in saying that,

In general terms, delay may lead to forensic disadvantage ‘in respect of adequately testing allegations or adequately marshalling a defence, as compared with the position if the complaint of the offence were of “reasonable contemporaneity”. At common law, instances of forensic disadvantage suffered as a consequence of delay have included the inability of a defendant to establish an alibi or to call more convincing evidence of an alibi, an inability to carry out medical examinations in a timely way, an inability to explore the detail of the circumstances of the alleged offending and an inability to identify the alleged events with specificity.

The Court examined the particular facts of the case and upheld the trial judge's decision that a direction was not required.


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