Delay Is Still A Factor In Child Abuse Cases

John Connellan v Marita Murphy [2017] VSCA 116

The plaintiff (Marita Murphy), who was born on 19 July 1961, alleged that the defendant (John Connellan), who was born on 12 December 1954, sexually assaulted her, on two occasions, in ‘approximately 1967 or 1968’. The plaintiff alleged that these sexual assaults occurred whilst she was staying with Connellan’s family for a period of about 7 to 10 days.

The Defendant denied the allegations saying that the first time he had any contact with the plaintiff was in April or early May 2015 when she attended his place of business and left a newspaper article with handwriting on it.

In April 2016, the plaintiff commenced a proceeding in the County Court against the defendant claiming damages in respect of psychological injuries, which were said to have been a result of the two alleged sexual assaults.

For many years prior to 1 July 2015, the plaintiff’s alleged cause of action was statute-barred.  However, on 1 July 2015, the Limitation of Actions Amendment (Child Abuse) Act 2015 (‘the 2015 Act’) commenced operation the effect of which is that in Victoria limitation periods no longer apply in child abuse claims and in relation to the plaintiff’s alleged cause of action.

However, s 27F of the 2015 Act provides that nothing in the amending legislation limits the Supreme Court’s inherent jurisdiction, and in the case of other courts, their implied or statutory jurisdiction; or any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of court, practice note or practice direction.

This means that a court still has the power to summarily dismiss or permanently stay proceedings where the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.

The defendant applied for a permanent stay of the proceedings on the grounds that the proceeding was an abuse of process and/or ‘because the defendant was irretrievably prejudiced by reason of the delay’.  The primary judge dismissed the application on 22 February 2017.

In doing so, the Trial Judge considered the legislative history of s 27R and said:

o   The purpose of the amending Act is clearly to provide greater access to justice for victims of historical abuse.

o   However, s 27R does have a significant role to play, examples were given of how this can be experienced in practice.

o   There is acknowledgement that certain prejudice has occurred.

o   The key factor in refusing to stay the proceedings is all present at the alleged assault are alive and available to give evidence.

There are a number of authorities that recognize that delay (or substantial passage of time) can have effects on memory and quality of justice.

o   See Longman v The Queen (1989) 168 CLR 79 and Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 and Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27.

o   See also for articulation of problems inherent in meeting allegations about events alleged to have occurred many years ago, involving children, Nicholson J in R v Jacobi (2012) 114 SASR 227.

In oral agreement, three broad complaints were made by the Appellant about the primary judge’s decision:

1. That the judge wrongly limited herself to the discrete question of whether the trial would be unfair, and did not conduct the broader evaluative process needed to determine whether there was an abuse of process. In support of this submission, the applicant contended that the judge ‘elevated the example in s 27R of the Act into the test to be applied to determine whether there should be a stay’.

2. That the judge failed to consider appropriately the matters relevant to determining whether there should be a stay including nature of allegations, loss of witnesses, fact defendant was a child at the time, reasons for delay.

3. That the decision was plainly unjust.

The Court of Appeal concluded that the defendant at age 62 was being asked to defend allegations regarding events that were alleged to have occurred when he was 13 in relation to someone who, on the Plaintiff’s own evidence, he knew for about a week. The court found that ‘the burdensome and oppressive nature of that task is manifest.’

The court also noted that it was difficult to investigate relevant surrounding circumstances and that the plaintiff’s own recollections were also considered vague.

There were also significant issues of causation and quantum.

The court also found that it was an error to consider that the fact that two of the child witnesses were alive to be a key factor.  Other factors also mentioned included the death of the plaintiff’s mother. The plaintiff’s reasons for delaying were also considered inconclusive.

The court reached the view that it would be plainly unjust to permit the plaintiff’s proceeding to continue. The court said that it cannot be realistically expected for the defendant to defend himself against something that allegedly happened 50 years ago, so little is known about the circumstances and all adult witnesses are dead.

Orders were made granting the defendant leave to appeal and allowing the appeal. The orders of the primary judge were set aside and an order was made that the plaintiff’s proceeding be permanently stayed.

This decision shows that despite the abolition of limitation periods in child abuse cases in a number of Australian jurisdictions, defendants will still try and argue delay to have historical child abuse claims struck out or permanently stayed.

Certainly, the further back in time that the events relate to, the more likely it is that a stay will be granted. Query whether there would have been a similar outcome in a case involving institutional abuse where documentary evidence and possibly eye witness or similar fact evidence would be more likely to be available.