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The Trustees of the Roman Catholic Church for the Diocese of Lismore v GLJ [2022] NSWCA 78 (‘Lismore Trust v GLJ’)
On 1 June 2022 the New South Wales Court of Appeal permanently stayed an historical child abuse proceeding.
Facts
The respondent, GLJ, alleges she was sexually assaulted by Father Clarence Anderson, a priest of the Diocese of Lismore, in 1968 when she was 14 years of age. It was alleged that the Lismore Trust had breached its duty to GLJ for a number of reasons, including that it permitted Father Anderson to continue as a priest when it knew or ought to have known that he had a propensity to abuse children.
At the trial four witness statements by male victims of Father Anderson were adduced as tendency evidence. Also adduced was subpoenaed evidence regarding Father Anderson’s laicisation in 1971. During this process the Bishop of Lismore had said Anderson had ‘recurring trouble in sexual matters… and in every case young boys were involved’.
Primary judge’s decision
The grounds for the application for the permanent stay principally related to the passage of 54 years since the alleged sexual assault and the deaths of Father Anderson and other potential witnesses where, at the time of his death in 1996, neither Anderson nor the Lismore Trust were on notice of the specific allegations by GLJ.
The primary judge, in refusing the application, acknowledged the forensic disadvantages faced by the Lismore Trust, but considered that the body of evidence demonstrated that Father Anderson’s misconduct was well-known to his superiors before the alleged assault.
Despite Father Anderson not being available to answer to the allegations, the primary judge considered there was ‘plenty of objective ammunition by which his credibility in that regard could be called into question’.
The appeal
The Court of Appeal acknowledged the evidence that the Lismore Trust were on notice of sexual misconduct by Anderson before the alleged assault on GLJ, but highlighted the lack of evidence in relation to the specific allegations by GLJ and the fact that such allegations could not be put to Anderson or other key witnesses.
The Court of Appeal, finding that the primary judge had erred, set aside the previous orders and ordered a permanent stay of the proceeding.
Mitchelmore JA highlighted that, although Father Anderson was not a defendant, he was nonetheless a key witness and his death meant the Lismore Trust had not been afforded the opportunity to put the allegations to him or call him as a witness. Despite a number of forensic steps not having been taken by the Lismore Trust, the fact that Father Anderson was not available meant that any such steps would not have relieved the difficulty the Lismore Trust faced in that it was ‘utterly in the dark’ on the central issue.
Brereton JA, addressing the tendency evidence, noted that Father Anderson’s alleged misconduct against young males ‘does not begin to establish that he assaulted GLJ as alleged’. Further, the unavailability of Father Anderson, one of only two potential witnesses to the assault, meant the Lismore Trust ‘had no way of investigating and ascertaining whether or not the alleged assault had taken place, let alone contradicting it. This had the consequence that, regardless of the veracity and credibility of GLJ, the trial could not be a fair one.
Key lesson
This judgment reinforces the critical role that the availability of witnesses, in particular the alleged abuser, from whom instructions can be obtained in respect of specific allegations, plays in the exercise of a discretion to grant a permanent stay in matters of historical child abuse.
What is clear is that institutions will likely be further encouraged to seek permanent stays in circumstances where the alleged abuser and key witnesses are unavailable, even where evidence indicates a propensity for child abuse.
Should you wish to speak with Tom Drake or another member of Nevett Ford’s litigation team, give us a call on (03) 9614 7111 or email melbourne@nevettford.com.au