Removal of the Statute of Limitations for Child Sexual Abuse: Can the Court Still Permanently Stay a Claim?
The Royal Commission into Institutional Responses to Child Sexual Abuse recommended that Australian jurisdictions remove the limitation period for survivors of childhood sexual abuse to bring claims. The recommendation recognises that it can take on average up to 20 years for survivors to speak openly about their abuse. The Queensland parliament responded by passing amending legislation, retrospectively abolishing the 3 year time limit that existed (from the child turning 18) (s11A of the Limitation of Actions Act 1974 (QLD)). Equivalent legislation has also been passed in other Australian jurisdictions.
However, Institutions (such as schools) may be concerned about the effect of these amendments, particularly where the abuse is alleged to have occurred many years ago, and there is a paucity of evidence available to respond to the claim. In this regard, the Queensland amendments do not limit any inherent, implied or statutory jurisdiction of a Court. The legislation includes the example that a Court may summarily dismiss or permanently stay proceedings if the lapse of time has a burdensome effect on the defendant that is so serious that a fair trial is not possible.
The Victorian Court of Appeal recently considered the effect of this exclusion (Connellan v Murphy  VSCA 116). Specifically, the Court was asked to consider whether the lack of quantity and quality of evidence in the case justified the court placing a permanent stay on the proceedings.
In April 2016, the Plaintiff initiated proceedings against the Defendant, alleging that he, his brother and another male named “Eugene” sexually assaulted her in approximately 1967/1968. She was approximately 13 years old at the time. The alleged perpetrators were approximately the same age. She claims that she stayed with the Defendant’s family for a short period (approximately a week) after her father died and the assaults occurred during this time.
While the alleged perpetrators are still living and available to give evidence, the only potential witnesses who were adults at the time are deceased and the locations involved are significantly altered. The claims made by the Plaintiff were vague and occasionally inconsistent and unable to be tested due to the 50 year lapse in time.
The Defendant applied to have the proceedings permanently stayed on the basis that there was a lack of evidence as to both liability and quantum. He argued that the proceedings were an abuse of process and/or that he was irretrievably prejudiced by them. Similar to the Queensland legislation, section 27R of the Limitation of Actions Act 1958 (VIC) allows the court to 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 need for consistent evidence
At first instance, while accepting that the Defendant was prejudiced by the lapse of time, the Court dismissed his application on the basis that key witnesses were still available and that the intention of the legislative amendments was to allow the court to hear sexual abuse cases that were made difficult by the lapse of time. The Defendant appealed this decision to the Victorian Court of Appeal.
The Court of Appeal found that because the only available witnesses were children at the time and that there was a quantitative and qualitative lack of evidence surrounding both the events and the quantum arising from the claim, the proceedings were unjustifiably prejudicial to the Defendant and should be permanently stayed.
What does this mean for Schools?
This case provides some guidance for Institutions when dealing with sexual abuse claims, particularly where the allegations are historical in nature and there is a paucity of evidence available. However, each application will depend on the relevant facts in that matter, and care will need to be exercised when considering bring an application of this nature. Whilst the Institution might ultimately be successful in having the claim permanently stayed, there may still be significant reputational risks for the Institution to consider.
This article was written by Alistair Macpherson (Director) & Team