Key points:
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The decision in Smith provides guidance for defendants seeking a permanent stay of proceedings in historical child abuse claims.
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The Courts have again indicated that there is scope for permanent stays where a fair trial is not possible or so unfairly and unjustifiably oppressive, as to constitute an abuse of process.
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Defendants should ensure that substantive efforts are made to obtain records and any relevant statements from key witnesses so that they are able to show the Court they have exhausted all avenues to investigate the claim.
Background to the Smith Case
In August 2021, Mr Smith commenced proceedings. It was alleged that in or around 1981, Mr Smith was sexually abused by the master in charge of the Trinity Grammar School, Reverend, Keith Sandars.
Individuals who may have been able to give evidence regarding the allegation were unavailable, including:
- the alleged perpetrator (Rev Sandars died in 2012);
- key witnesses (the headmasters who appointed Rev Sandars to his role); and
- witnesses of primary fact (PE teacher and secretaries who worked in Rev Sandars’ office in 1981).
Favourable statements were however obtained by the Council from other employees, from the 1970s and 1980s, to the effect that Rev Sandars’ office had French doors which permitted people to look in. A statement was also obtained from Rev Sandars’ secretary in 1982, which stated that Rev Sandars kept his door open at all times except when parents visited.
Notably, there was no evidence that Rev Sandars had ever been investigated for, charged with, prosecuted or convicted of any offence. There was much emphasis placed on this point in the primary proceedings.
Her Honour, Harrison AJ highlighted the extensive efforts which had been undertaken by the Council to find testimonial and documentary evidence relating to the claim. Notwithstanding, she was of the opinion that the school could not meaningfully deal with the claim against it, particularly given the lack of records, the death of the alleged perpetrator and no other reports of alleged sexual abuse by Rev Sandars. These were exceptional circumstances, such as to meet the bar required for a permanent stay of proceedings.
Mr Smith appealed to the Court of Appeal.
On Appeal
The Appeal was brought on three grounds. Grounds one and two were of a similar vein, namely that the primary judge failed to evaluate and conclude that the evidence collated by the Council’s investigations was sufficient enough for the Council to meaningfully respond to the claim.
The Court of Appeal raised the unusualness of these grounds as Mr Smith further submitted that the finding, as to the strength of the Council’s case, would have been that he would have most likely failed in his claim.
This was not accepted as a valid criticism of the primary judge’s reasoning, as Mr Smith made no submissions to her in this regard in the initial proceedings. His claim had been that he had a prima facie case, such that it would be most unjust for a permanent stay to be issued.
The third ground was the Primary Judge’s failure to explain the reasoning as to why this was an exceptional case warranting the grant of a permanent stay. This argument was considered to hold little weight as the Primary Judge clearly articulated her reasoning by referring to the absence of any key witnesses and documentation.
In light of permanent stays granted in
The Council of Trinity Grammar School v Anderson (2019) 101 NSWLR 762 and The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2002] NSWCA 78, the Court of Appeal sought to reconcile this case with the case which came before it. Whilst it was emphasised that every case in which a permanent stay is sought must turn on its own facts, there were discernible similarities between the cases.
It was apparent that Courts would give consideration to the absence of evidence including records and key witnesses, such that the defendant would have no way of investigating whether or not the alleged assault had taken place. In essence, the Council would be unable to defend the claim and have a fair trial.
The decision in Smith provides guidance for defendants seeking a permanent stay of proceedings in historical child abuse claims.
The Courts have again indicated that there is scope for permanent stays where a fair trial is not possible or so unfairly and unjustifiably oppressive as to constitute an abuse of process.
However, defendants should ensure that substantive efforts have made to obtain records and any relevant statements from key witnesses so that they are able to evidence to the Court they have exhausted all avenues to investigate the claim.
Although Courts have consistently emphasised that grants of permanent stays will turn on the facts of each individual case, Smith has certainly provided insight into applicable principles which are being taken into consideration by Courts when determining these stay applications.
Blog written by Hicksons’ Partner, Emma Ellis, and Solicitor, Jessica Zhang.