Is a fair trial possible after 50 - 70 years?

On 13 November 2024, the High Court overturned the decision of the Supreme Court of Appeal of Queensland to find that a fair trial could be had, despite the passage of time, the death of all (but one) alleged offenders, and the death of the preponderance of the key witnesses in a historical abuse claim.

Key takeaway:

We expect to see the ripple effect from this decision (and that of RC) over the coming months. We anticipate:

• new stay applications will be very rare;
• matters with pending/reserved stay applications divert to alternative dispute resolution or trial; and
• although plaintiffs bear the onus in historical matters, defendants will continue to do the heavy lifting in evidentiary investigations (including in relation to avenues to challenge uncorroborated evidence/allegations).

The claim in a nutshell

In the primary claim, the Plaintiff (DOB 6 April 1954) alleged that over the period 1957 to 1959 she was physically and sexually abused "on a weekly to a fortnightly basis" whilst placed in foster care with a Mr Jack Demlin and Mrs Tottie Demlin (Demlins Allegations), she was subjected to physical mistreatment (primarily at the hands of Ms Maude Philips) during her periods of stay at the Cherbourg Girls' Dormitory (Cherbourg) in the 1950s and 1960s, and she was abused on two further instances whilst permitted by the Cherbourg Superintendent to visit her grandmother who lived near Ipswich, which included being sexually assaulted by an uncle, NW, in 1960 and by her great uncle, Mr Pickering, in 1967 (Pickering Allegation).

The Plaintiff alleged the State of Queensland (Defendant) failed to properly monitor and supervise her and those into whose care she was placed, including her foster parents, her grandmother, and at Cherbourg pursuant to the State Children Act 1911 (Qld) and the Aboriginals Protection and Restriction of the Sale of Opium Act 1897 (Qld).

The Defendant sought a permanent stay of the proceedings on the basis that a fair trial was not possible in the circumstances. The stay was granted at first instance and the appeal against the stay was dismissed by the Queensland Court of Appeal.

The High Court ruled in favour of the Plaintiff in setting aside the permanent stay, save for paragraphs 9(b), 11, and 12 of the Plaintiff's Statement of Claim relating to the physical abuse aspects of the Demlins Allegations and the Pickering Allegation.

The foundations of the defendant's case

The primary arguments relied upon by the Defendant in support of the stay application were:

• The alleged abuse occurred some 50 – 70 years ago;
• There were limited witnesses available as the Cherbourg Superintendent and key Cherbourg witnesses, Mrs Demlin, and the Plaintiff's grandmother were deceased;
• The alleged offenders were deceased, save for NW who was 78 years of age and only located immediately prior to the first instance proceedings;
• Limited to no reliable allegations of abuse were raised in the alleged offenders' lifetimes; and
• There was no meaningful way of investigating or ascertaining whether or not the alleged assaults and/or abuse occurred.

High Court appeal

The rationale for the High Court's decision to set aside the permanent stay are most appropriately addressed in the joint judgment of Gageler CJ, Gordon, Jagot, and Beech-Jones JJ, which outlines the following five guiding principles relevant to evaluating fairness in stay applications:

• The gravity of the facts to be proven at trial still have an impact upon the civil standard of proof;
• Regard shall be had to the power of one side to produce evidence and the other side to contradict that evidence in determining what weight shall be applied, according to the civil standard;
• The Court is not obliged to accept uncontradicted evidence, whereby the "facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied" (Jones v Dunkel (1959) 101 CLR 298 at 305; GLJ (2023) 97 ALJR 857 at 875 [60]; 414 ALR 635 at 655);
• Human memory is "fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time" (Watson v Foxman (1995) 49 NSWLR 315 at 319. See also Longman (1989) 168 CLR 79 at 107-108; GLJ (2023) 97 ALJR 857 at 875 [59]; 414 ALR 635 at 655), for which the Court is cognisant; and
• Evidence, which relates to allegations of abuse against a deceased person, will be scrutinised very carefully.

The stay application proceeds on the basis that the plaintiff is in a position to produce evidence to support the case at trial. A distinction is drawn between the principles of unfairness that govern a stay application, and the defendant's ability to challenge evidence at trial.

Each case will of course, turn on its facts. Here, the High Court carefully analysed the pleadings. The allegations of abuse were not admitted, and the State pleaded that the alleged physical abuse did not meet the threshold of serious physical abuse' or 'psychological abuse'. However, many of the foundational facts were not in issue, such as Ms Willmot's placement at the Cherbourg Settlement or with the Demlin Family (contrast RC v Salvation Army). The State also accepted that there was a non-delegable duty owed to Ms Willmot while she was a 'State Child' or subject to the Aboriginals Protection and Restriction of the Sale of Opium Act. Counsel for the State accepted that the relevant non-delegable duty was one to 'ensure that reasonable care was taken' for Ms Willmot's safety.

Further, it is worth noting that the High Court considered that contemporaneous documents addressing the general conduct of Ms Phillips towards children at Cherbourg (though not the Plaintiff) allowed the Defendant the opportunity to provide an 'informed response' to the subject allegations.

How will this case impact the claim landscape moving forward?

This High Court decision has reinforced that the bar is set high for any defendant seeking to stay proceedings on the basis that an unfair trial cannot be had. A permanent stay continues to be considered an 'extreme step'. The evaluative inquiry in each case (being unique and highly fact-specific) must be 'whether any prospective trial will be unfair or so unfairly and unjustifiably oppressive as to constitute an abuse of process'.

Defendants considering bringing a permanent stay application would be wise to consider whether they can demonstrate a 'burdensome effect' that is more than just the passage of time, death of potential witnesses or lack of documents (noting that historical abuse allegations are rarely proven on the documents). The High Court rejected Ms Willmot's contention that the Defendant must show there has been a 'radical alteration of that which is extreme or exceptional, with respect to the evidentiary possibilities'.

Instead, the High Court recognises a 'new world' where it should be expected (post removal of the limitation period) that claims of child sexual abuse will be made 'where there may not be documentary evidence or direct corroborating evidence'.

This is not, however, an open door for claims to succeed against deceased persons – while it may be fair to allow such a plaintiff to have their claim tried, that plaintiff will still be required to prove their claim to the civil standard (which can vary according to the gravity of the allegation), and the court will still need to be satisfied as to the fact of the alleged abuse, the breach of duty and the causal link.

This case serves as a reminder that applying for a permanent stay of proceedings is a rather burdensome and difficult path, although each case will turn on the facts. Regardless, in certain scenarios, testing the veracity and reliability of the evidence (even in circumstances where the key witnesses and alleged offenders are deceased) may be best achieved in court proceedings without pursuing the avenue of a permanent stay.