Sexual abuse matters, removal of time limitation and the need for consistent evidence: Case Study – Connellan v Murphy [2017]

Where childhood sexual abuse cases can be permanently stayed

Personal injury claims that arise from early childhood events are always difficult to manage from an evidentiary perspective. There is considerable research into the way that memory functions, particularly childhood memory, which brings the quality of evidence into question. For this reason, many Australian jurisdictions have had legislative time limits on initiating proceedings (known as limitation periods).

In recent years there has been a move to remove these limitation periods in order to allow sexual abuse victims to initiate proceedings in relation to historical sexual abuse.

In Connellan v Murphy [2017] VSCA 116 the Victorian Supreme 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 even though there was no limitation period on them. The court was asked to consider s27R of the Limitation of Actions Act 1958 (VIC), which is comparable to s11A of the Limitation of Actions Act 1974 (QLD).

Facts

In April 2016, the Plaintiff, Ms Murphy, initiated proceedings against Mr Connellan, alleging that he, his brother, and a man 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 Connellan 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. S27R 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

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 Supreme Court of Victoria.

The Supreme Court of Victoria found that because the only available witnesses were children at the time and because 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 this means for Queensland Cases?

For those worried that the removal of the Queensland limitation periods will result in frivolous sexual abuse claims, this case will be persuasive to the Queensland courts and provide a strong argument for staying proceedings that have little evidentiary basis.

If you have any questions relating to a Personal Injury limitation period, contact Corney & Lind’s Personal Injury team for advice on 07 3252 0011 or for more information, click here.

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