Judge rules Bendigo murder trial relating to King Street stabbing won't go ahead

Jarrod Frank was charged with murder after Scott Bury died from stab wounds sustained in King Street on January 3, 2018.

But on Wednesday Justice Lesley Taylor ruled proceedings be permanently stayed.

The decision came after the Crown changed its case in relation to where and when the stabbing occurred.

The Crown's case originally posited that Frank had inflicted all the injuries inside Mr Bury's home, but late last month instead said Mr Bury was injured either inside his home or outside on the driveway.

Then earlier this month, the case was changed again, this time to assert that all injuries were inflicted outside.

Justice Taylor said this resulted in a "fundamental defect going to the root of the trial".

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She said the change in the Crown's case meant a certain portion of Mr Frank's record of interview, relating to the detective's questions about what happened inside the home, could not be led at trial because it would be irrelevant and prejudicial.

To only use the rest of the interview, she said, would deny Mr Frank a fair trial as earlier statements he made regarding self-defence formed part of the excluded material.

This meant Mr Frank would not benefit from the jury hearing repeated statements he made during interview that were central to his argument of self-defence.

Mr Frank had told police the injuries to Mr Bury were inflicted outside, while he defended himself against an attack by the deceased man.

Justice Taylor said Mr Frank could give evidence at trial - although that raised the issue of an accused person's right to silence - and even that would only partly rectify the situation, as he would still lose the benefit of the jury hearing the explanation of events he gave at the first opportunity.

As such, Justice Taylor said the prejudice was "irremediable".

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She also found that while the Crown was allowed to reconsider the basis of a charge, it should be communicated clearly and in a timely fashion to both the defence and the court, which did not occur in this case.

Justice Taylor noted this change in the prosecution case compromised the defence's trial preparation.

She said the conduct of the Crown had undermined the administration of justice.

The prosecution will consider whether it will seek leave to appeal the decision.

An Office of Public Prosecution spokesperson said all rulings of this nature were considered for potential appeal.

Mr Frank remains on bail at this time.

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