Historical sexual abuse – stay of proceedings – impoverishment of evidence

Willmot v State of Queensland [2022] QSC 167

The plaintiff was born in 1954 and alleged between 1957 – 1967, when she was a “State child” under the State Children Act 1911, she was abused. The plaintiff is an Aboriginal person, and whilst a State child was under the ‘care and protection’ of the Aboriginal Protection and Restriction of the Sale of Opium Act 1987.

The plaintiff alleged she was abused when placed into the care of foster parents, at the girls’ dormitory at Cherbourg and on further occasions when she visited her grandmother in Ipswich. The abuse alleged was by Jack Demlin when in foster care, Maude Phillips, a supervisor at the dormitory and her uncle NW, when the plaintiff visited her grandmother. When the plaintiff was not State child, she alleged she was abused when visiting her grandmother on holiday with her family by cousin/great uncle Pickering.

The plaintiff’s claim was premised on direct liability as opposed to vicarious liability based on the State of Queensland (the State) failing to properly monitor and supervise the plaintiff when she was in care and under their control by virtue of the Aboriginal Protection and Restriction of the Sale of Opium Act 1987.

The plaintiff’s claim was enlivened by the extension of the Limitation of Actions Act 1974. However, the State of Queensland sought the proceeding be permanently stayed on the basis that by the lapse of time, a fair trial was impossible. The stay application was pursuant to section 11A(5) of the Limitation of Actions Act 1974, rule 16(g) of the Uniform Civil Procedure Rules 1999, and section 7(4) of the Civil Proceedings Act 2011.

The application for the stay was because, except for NW, all material witnesses were deceased, and there were no records about the allegations of sexual abuse. The plaintiff had raised allegations about physical abuse in 2008 as part of the Queensland Department of Communities Redress Scheme and had received some compensation. However, no allegations of sexual abuse were made.

The plaintiff’s allegations of sexual abuse while in foster care flowed primarily from the recollections of RS, who was also in foster care. RS was eight years old when the plaintiff was four. When the plaintiff attended upon Dr Khoo, a psychiatrist and did not recall sexual abuse by Jack Demlin. However, when the plaintiff later attended upon Dr Pant, a psychiatrist, she had a fragmented recollection of sexual abuse by Jack Demlin.

The State deposed that various searches for persons and documents had been done, and there were no documents about the alleged abuse or witnesses.

In response to the plaintiff’s claim, the State accepted that it:

  1. Placed the plaintiff into foster care and when she was in foster care, was responsible for the plaintiff’s care;
  2. Operated the dormitory, employed Maude Phillips and was responsible for care of the plaintiff.

The State did not admit the allegations as to the content of the duty and knowledge “due to the effluxion of time, namely in excess of 60 years, the defendant cannot ascertain the truth or falsity of the allegations and is prejudiced in the defence of the claim accordingly in the sense that there cannot be a fair trial of the issues in dispute”.

The State did not admit to the abuse by Jack Demlin, Maude Phillips, NW and Pickering.

The critical aspect of the application was not the State had the care of the plaintiff or in foster care or employed Maude Phillips, but its pleaded inability to ascertain the truth or falsity of the allegations of sexual abuse.

The Chief Justice applied the summary stated by Bell P (as the Chief Justice then was) in Mourarak by his tutor Coorey v Holt 100 NSWLR 218 at [71] (Mourarak) for consideration of exceptional reasons to permanently stay proceedings. Critically, in paragraph [77] of Mourarak the Chief Justice relied upon the statement that “the impoverishment of evidence will be more acute where a trial is exclusively or heavily dependant on oral evidence and the quality of witnesses’ memory and recollection”.

A fair trial was not possible because of the consequences of the lengthy time. Namely, all material witnesses were dead except for NW and could not give instructions, including NW.

In support, the Chief Justice also referred to Ward v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2019] NSWSC 1776, Chalmers v Leslie (2020) 6 QR 547, The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 and GMB v Uniting Care West [2020] WADC 165.

The Chief Justice concluded:

[77] It is that factor which, having regard to the authorities discussed above, has ultimately
persuaded me, after careful consideration, that this is a case in that exceptional
category where a permanent stay is warranted. Deprived of the ability to obtain any
instructions from Jack or Tottie Demlin, Maude Phillips or Uncle Pickering, in
particular, the State has no means for investigating the foundational facts
underpinning the alleged wrongful acts which are critical to establishing liability on
the part of the State. Those allegations were never put to any of the alleged
perpetrators while there alive, and there is therefore no record of any response from
them. There are no documents bearing upon the abuse allegations which could
overcome this.

[78] It may have been possible, on the basis of documentary records, and evidence of
others who were required to live, or worked, at the Cherbourg dormitories at the time
the plaintiff lived there, for the State to deal with the allegations in so far as they
concern the “system”, or lack of one, for monitoring and supervising children, such
that it could not be concluded, in that respect, that the trial was unfair. However, in
so far as the critical facts, that is, the alleged wrongful conduct for which the plaintiff
seeks to make the State liable, are concerned, the consequences of the passage of
some 60 years since those events are said to have occurred, and the fact that the State
now does not have any opportunity to confront the alleged perpetrators to obtain
instructions for the purpose of defending the claim, let alone calling those persons as
witnesses, are such that any trial would be fundamentally unfair, and there is nothing
that a trial judge could do to overcome that unfairness.

[79] The fact that NW is still alive does not, in my view, support a different conclusion.
Whilst the State and the plaintiff are able to speak to him, and ask him about the
allegations, he is a 78 year old man, who would be asked about something he is
alleged to have done when he was a teenager, aged 15 or 16, more than 60 years ago.45
It would, I accept, be insurmountably difficult to extricate this one event, from the
allegations of what happened at the Demlins’ house, and from the broader allegations
of what the plaintiff says she endured whilst at the girls’ dormitory, let alone the other
subsequent life events referred to in Dr Khoo’s report, in terms of causation.

[80] In so far as the plaintiff emphasises that there is, unusually, a witness to the abuse
alleged at the hands of Jack Demlin, for the reasons given in Lismore Trust v GLJ at
[100] and also in Chalmers v Leslie at [31], far from this overcoming the unfairness
of the trial, which flows as a consequence of the lengthy passage of time since the
alleged events occurred, and the death of Jack Demlin, the evidence of RS highlights
the unfairness, and would, I accept, only render the trial more unfair. This is because
the State is also deprived of the opportunity to obtaining instructions from Jack Demlin about the allegations made by RS. The ability to cross-examine the plaintiff,
and RS, does not cure this impediment. The State would be cross-examining in the
dark. As Martin J said in Chalmers v Leslie at [33], “[a]n unfair trial cannot be made
fair on the basis that something might emerge from cross-examination of another
party”.

 

David Cormack

 

Brisbane Barrister and Mediator

NB: Appeal by the plaintiff dismissed – Willmot v State of Queensland [2023] QCA 102 

 

 

 

 

 

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