The imperfect but fair trial

10 October 2023

Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.

The NSW Supreme Court refused to grant a permanent stay of historical abuse proceedings even though the alleged perpetrator and witnesses were deceased, and a novel duty of care was pleaded against one of the defendants.

In issue

  • The NSW Supreme Court considered whether a permanent stay of abuse proceedings ought to be granted where the abuser had died, and the plaintiff sought to bring proceedings against the abuser’s wife some 40+ years later.

The background

The plaintiff, a ward of the State of NSW, brought proceedings against the State and former foster parents Mr GC and Mrs SC in relation to allegations of historical child sexual assault dating back to the late 1970s/early 1980s.

GC was convicted of a number of charges of sexual assault relating to the plaintiff (and other former foster children) and imprisoned in 2019. He maintained a not guilty plea and did not give evidence at the criminal trial. He died in custody in April 2022 of melanoma.

Initially proceedings were brought against the State and GC only. In March 2022 the plaintiff sought to join SC to the proceedings. As against SC it was alleged, as a carer of the plaintiff, she owed the plaintiff a novel duty to take reasonable precautions to prevent the plaintiff from being exposed to abuse while under her care. The harm was alleged to be foreseeable due to the previous abuse by GC, which was allegedly witnessed or known about by SC. Further, SC allegedly failed to take reasonable precautions against the risk of harm, primarily by accepting the plaintiff into her and GC’s care.

In June 2023 SC sought a permanent stay of the proceedings against her.

The decision at trial

The stay was sought on a number of bases, including: the lack of quality evidence given by the plaintiff (including varying accounts), the death of two key witnesses (including GC and an employee of the Department of Children Services (DOCS)), the absence of other witnesses, delay in commencing the proceedings and SC’s inability to meaningfully participate in the claim as a result of being unable to refute the allegations of sexual abuse. Finally, she asserted a number of limitation defences, noting the claim was substantially out of time.

The Court held that there was no evidence that SC was unable to fully participate in and give evidence in relation to any trial. Further, that while GC’s death was prejudicial to SC, he fully defended the criminal proceedings against him and SC could adduce hearsay evidence in accordance with s 63 of the Evidence Act 1995 in relation to his statements as to the allegations against him. The contemporaneous records of DOCS could be tendered as business records, and reduce any prejudice relating to the death of the department official. Finally, Garling J considered the limitation point not to be an argument amenable to a summary dismissal application, and ought more properly to be considered at trial.

SC’s Notice of Motion was therefore dismissed with costs.

Implications for you

Garling J’s decision considers the boundaries of what is likely to be seen as an imperfect but fair trial. Accordingly, in circumstances where other evidence may substitute for direct witness testimony, a Court may be hesitant to grant a permanent stay of proceedings.

Ask us how we can help

Receive our latest news, insights and events
Barry Nilsson acknowledges the traditional owners of the land on which we conduct our business, and pays respect to their Elders past, present and emerging.
Liability limited by a scheme approved under Professional Standards Legislation