Re Applications in matters numbered 861 & 864 of 2001
[2002] QDC 219
•21/06/2002
DISTRICT COURT OF QUEENSLAND
REGISTRY: Brisbane
NUMBER: 861 and 864 of 2001
IN THE MATTER OF
APPLICATIONS IN
MATTERS NUMBERED 861of 2001 AND 864 of 2001
REASONS FOR JUDGMENT
DELIVERED the twenty-first day of June, 2002.
These two applications involve only the plaintiffs and the third defendant, William Theodore
D’Arcy. I shall refer to the Third Defendant simply as “the defendant.” The applicants have each
commenced an action in this Court seeking “$250,000.00 damages for negligence and/or assault
including aggravated damages together with interest ....” As in each case the acts alleged to be
negligent or to constitute an assault happened many years ago the plaintiffs have thought it advisable1
to bring these applications for orders that:
The period of limitation prescribed by the Limitations of Actions Act 1974 for the bringing of this action be extended to 1 November 2001.
The applications were heard together.
The plaintiff in action 861 of 2002 (whom I will refer to as “R”) was born on 21st April,1956. She is married, and has been a teacher for over twenty years
R alleges that she was a student at the Yalleroi State School (which I shall hereafter refer to
simply as “the school”) between 28th January, 1963 and 1st July, 1965. The defendant, it is alleged,
was, during that time,2 the only teacher at that school. It is alleged that during that time the
defendant assaulted the plaintiff on a number of occasions. The particulars3 given are:
(a)
An occasion when the Third Defendant placed his hand on the Plaintiff’s upper leg and rubbed it around her vagina area and placed a finger into her vagina. Whilst the Third Defendant did this he was seated at his desk in the main school room in the school and the Plaintiff was standing beside him;
(b)
An occasion in the back left hand corner of the main school room when the Plaintiff was told by the Third Defendant to lie along one of the bench seats along the back wall, the Third Defendant removed the Plaintiff’s underpants down to her knees, unzipped his shorts and exposed his penis to her and lay on top of her facing towards him rubbing himself against the Plaintiff in an up and down motion from her vagina area to her navel;
(c)
An occasion in the store room at Yalleroi State School when the Third Defendant rubbed his pelvic area up and down against the Plaintiff’s back; and/or
(d)
An occasion when the Plaintiff was sitting on the Third Defendant’s lap on a chair against the back wall dividing the library and the classroom and the Third Defendant was thrusting his pelvic region against the Plaintiff’s bottom.
The plaintiff in Action 864 of 2001 (whom I shall refer to as “S”) was born on 31st August,
1955. She too is married, and she is employed as a cleaner.
She also alleges that she was a pupil at the school, in her case between 20th October, 1963
and 1st July, 1965.4 She alleges that the defendant assaulted her during that time, and the particulars
given5 are:
(a)
An occasion in the room where the stationery was kept at the school at lunch time when the Third Defendant touched the Plaintiff on her shoulders and leaned over and breathed in her left ear; the Third Defendant kissed the Plaintiff was (sic) placing his mouth over hers and forcing his tongue into the Plaintiff’s mouth. The Third Defendant was fumbling with the Plaintiff’s clothes below her waist;
(b)
There were several other incidents that occurred in the back room of the school which were of a similar nature;
(c)
An incident which occurred in the sewing room at the school where the Plaintiff was standing in front of the desk and the Third Defendant was standing behind her. The Third Defendant removed the Plaintiff’s
underpants and pushed the Plaintiff forward onto the desk and then
placed his penis into her vagina;(d)
An occasion at the front of the class in the classroom when the Third Defendant put his right arm around the Plaintiff’s waist and again sat the Plaintiff on his knee forcing the Plaintiff to masturbate him and then rubbed his penis between the Plaintiff’s buttocks and then placed his penis in the Plaintiff’s vagina;
(e)
Another occasion at the front of the class as the third Defendant put his right arm around the Plaintiff’s waist and again sat the Plaintiff on his knee forcing the Plaintiff to masturbate him and then rubbed his penis between the Plaintiff’s buttocks and then placed his penis in the Plaintiff’s vagina;
(f)
An incident which occurred in the library/sewing room when the Third Defendant made the Plaintiff lie on a table and ran his hands up and down her body from her knees to her underarms and then removed her underpants and kissed the Plaintiff on parts of her body and began biting her skin with her teeth. During this the Third Defendant kissed and licked the Plaintiff’s vagina and placed his fingers near and in her vagina. The Third Defendant then inserted his penis into the Plaintiff’s vagina and continued to kiss her around the neck region.
In the case of each plaintiff it is alleged6 that, as a result of the defendant’s “breaches” the
plaintiffs have:
(a) ... undergone and will continue to undergo pain and suffering; (b) require[d] psychiatric treatment and will continue to require the same; (c)
... suffered a loss of income and [their] earning capacit[ies] ha[ve] been deleteriously affected;
(d) ... been forced to expend money; (e) ... suffered other loss and damage ...
It is also alleged7 by each of the plaintiffs that:
... the assaults committed upon the Plaintiff[s] have caused [them]
considerable personal indignity, fear, insult and humiliation ....
Each plaintiff claims aggravated damages as part of her claim.
The applications are brought pursuant to the provisions of section 31 of the Limitation of
Actions Act 1974 (“the Act”.) That section provides:
(1) This section applies to actions for damages for negligence, trespass,
nuisance or breach of duty ... where the damages claimed by the
plaintiff for the negligence, trespass, nuisance or breach of duty consist
of or include damages in respect of personal injury to any person ....(2) Where on application to a court by a person claiming to have a right of
action to which this section applies, it appears to the court -
(a)
that a material fact of a decisive character relating to the right of action was not within the means of knowledge of the applicant until a date after the commencement of the year last preceding the expiration of the period of limitation for the action; and
(b)
that there is evidence to establish the right of action apart from a defence founded on the expiration of a period of limitation;
The court may order that the period of limitation for the action be extended so that it expires at the end of 1 year after that date ....
(3) This section applies to an action whether or not the period of limitation
for the action has expired -
(a) before the commencement of this Act; or (b)
before an application is made in under this section in respect of the right of action.
Section 30 of the Act provides:
7. Paragraph 6 of the Statements of Claim.
(1) For the purposes of this section and sections 31, ... -
(a)
the material facts relating to a right of action include the following -
(i) the fact of the occurrence of negligence, trespass, nuisance or breach of duty on which the right of action is founded;
(ii) the identity of the person against whom the right of action lies;
(iii) the fact that the negligence, trespass, nuisance or breach of duty causes personal injury;
(iv) the nature and extent of the personal injury so caused;
(v) the extent to which the personal injury is caused by the negligence, trespass, nuisance or breach of duty;
(b)
material facts relating to a right of action are of a decisive character if but only if a reasonable person knowing those facts and having taken the appropriate advice on those facts, would regard those facts as showing -
(i)
that an action on the right of action would (apart from the effect of the expiration of the period of limitation) have a reasonable prospect of success and of resulting in an award of damages sufficient to justify the bringing of an action on the right of action; and
(ii)
that the person whose means of knowledge is in question ought in the person’s own interests and taking the person’s circumstances into account to bring an action on the right of action;
(c)
a fact is not within the means of knowledge of a person at a particular time if, but only if -
(i) the person does not know the fact at that time; and (ii)
as far as the fact is able to be found out by the person - the person has taken all reasonable steps to find out the fact before that time.
(2) In this section - “appropriate advice”, in relation to facts, means the advice of
competent persons qualified in their respective fields to advise on the
medical, legal and other aspects of the facts.
“Right of action” includes a cause of action.8
Section 8 of the Act provides:
(1) Save as is provided in sections 31 and 32, nothing in this Act -
(a)
enables an action to be brought that was barred before the commencement of this Act by an enactment repealed by this Act, ...;
(b) ..... (2) The time for bringing proceedings in respect of a cause of action that
arose before the commencement of this Act shall, if it has not then
expired, expire at the time when it would have expired -
(a) apart from this Act; or (b) if this Act had at all material times been in force, whichever is the later. (3) Save as is provided in this section, nothing in this Act affects an action
if the cause of action upon which that action is founded arose before
the commencement of this Act.
Section 29 (which is part of Part III of the Act) provides:
(1) If on the date on which a right of action accrued whether before or
after the commencement of this Act for which a period of limitation is
prescribed by this Act the person to whom it accrued was under a
disability, the action may be brought at any time before the expiration
of six years from the date on which the person ceased to be under a
disability ..., notwithstanding that the period of limitation has expired.(2) Notwithstanding subsection (1) -
(a) ....; (b) ....; (c)
an action to recover damages in respect of personal injury shall not be brought by a person after the expiration of three years from the date on which that person ceased to be under a disability ....;
“Personal injury” in the Act includes “an impairment of a person’s physical or mental
condition,”9 and a person is “taken to be under a disability” while “he is an infant.”10
The Age of Majority Act 1974 was assented to on 27th September, 1974, and
commenced on 1st March, 1975.11 Section 5 of that Act provides:
(1) Subject to this section and to section 7, for all the purposes of the laws
of the State -
(a)
a person who, on or after the date of commencement of this Act, attains the age of eighteen years attains full age and full capacity on attaining that age; and
(b)
a person who, on the date of commencement of this Act, is of or over the age of eighteen years but under the age of twenty-one years attains full age and full capacity on that date.
Subsection (2) of section 5 of the Age of Majority Act 1974 makes it clear that it applies,
so far as my present purposes are concerned, to any reference in an act (whether passed before or
after the date of commencement of that Act) to the use of the word “infant.”
At the date of the commencement of the Age of Majority Act 1974 S was nineteen and a
half years old so she attained her majority on that day. Similarly, R was almost nineteen years old,
and she also attained her majority on that date.
Hence both S and R “ceased to be under a disability” on 1st March, 1975. Pursuant to the
provisions of the Limitation of Actions Act 1974 which came into force four months later both S
and R’s causes of action became “barred” on 1st March, 1978, that is, three years after they
“ceased to be under a disability.”12
As will be apparent from the above, if the applicants are to succeed they must show that
there was a “material fact relating to a right of action” which was “not within the[ir] means of
knowledge” until a date after the commencement of the last year of the relevant period of limitation.
The “material fact” must be “of a decisive character.”
On 1st November, 2000 the defendant was convicted of eighteen counts by a jury. Those
counts on which he was convicted included some which were founded on the same allegations of
assault as are made by the applicants in these proceedings.
The essence of S’s claim is set forth in her affidavit filed on 7th March, 2001 and read in
these proceedings. In that affidavit she sets out several facts relating to the defendant which are not
challenged. They include:
1. From 1961 to 1972 he was a teacher at five different one teacher schools in
Queensland;
2. In 1965 he joined the Australian Labor Party, having spent a period as President of
the Gold Coast branch of the Queensland Teachers’ Union;
3. In 1972 he was elected to the State parliament as the member for Albert, holding
that seat until 1974;
4. In 1977 he was elected to the State parliament as the member for Woodridge, a
seat which he held until his resignation in about January, 2000;
5. Upon his resignation he received a superannuation payment;
6. In 1980 he was elected to be the Deputy Leader of the Labor Party;
7. In 1998 he was elected to be the deputy Speaker of the Queensland House of Representatives.
S goes on to allege in her affidavit -
8. From the time the ... Defendant committed the assaults on me ... until 1 allegations which I would make against him were so serious. That was especially so as the ... Defendant was a member of Parliament. My view about the prospects of success in a civil action changed when the jury believed my word against his and he was convicted.
November 2000 I did not ever think that I would have any prospect of
bringing any civil proceedings against the ... Defendant because there
was no witness to any of the assaults and it would have been simply
my word against his word. At the time of the assaults the ... Defendant
had been an adult and I had been a child. I thought it would be.....
10. Prior to [a] telephone conversation with police I had never told a single person about what the ... Defendant had done to me. The reason for that is:
(a) I did not think anyone else would believe me; (b)
I was not aware that the ... Defendant had behaved in a similar fashion towards others; I thought I was the only one;13
(c)
to tell someone else meant I would have had to describe what had occurred to me out aloud and, until I gave my statement to the police, I could not bring myself to do that as it meant reliving the events;
(d)
I felt guilty and ashamed of what the ... Defendant had done to me; I thought it was my fault and it must have happened to me because I was a bad person and not “normal”. I could think of no other explanation for why the ... Defendant had assaulted
me.
......
12. If it had not been for the fact that I knew that others had been treated by the ... Defendant in a way similar to me, I do not think I could ever have given evidence about what had happened to me.
The allegation that “there were no witnesses to any of the assaults” is not strictly correct. In
her statement14 she describes an incident that occurred “during class.” She says she was called to
the defendant’s desk, and stood by it. He then placed his arm around her waist, and began to rub
her upper thigh. He then lifted her on to his knee. He had his hands upon the desk. He then “told
the students who were looking up, to get on with their work.” He then “removed his penis from his
shorts” and he then told her how to masturbate him. After ejaculating he wiped his penis with a
handkerchief. Later that day, three students spoke to her about the incident, one of them telling her
that she “didn’t have to do that to [the defendant.]” One of the other students told her that he had
seen the handkerchief, and tried to explain to her why it had been used. Another student was
present during this conversation and was “nodding her head in agreement.” Another student said,
“Don’t let him hurt you.”15 She also relates another incident which took place in the classroom, during which the defendant had sexual intercourse with her.16 At the time she says she can recall
hearing the other students moving their chairs around. She says she did not look at them, as she was
staring at a painting on the back wall of the classroom.17
Further, the suggestion in her affidavit that what had occurred was known only to her and
the defendant is to some extent inconsistent with her belief, stated in paragraph 44 of her statement,
that her father “was aware of what had occurred between [the defendant] and [her].”18
S agreed that she had, in “the last ten years” heard of cases in which people had been sued
for abusing children sexually, and knew that damages had been awarded in such cases.19
S’s evidence is that she did not turn her mind to the question of bringing civil proceedings
until after the defendant was convicted.20 S states in her affidavit that after the defendant was
convicted she was contacted by a solicitor who was a friend of R, and she then decided “for the first
time in my life, that I should consider taking civil action to redress what the ... Defendant had done
to me.”21 At this solicitor’s suggestion she consulted a psychiatrist to obtain an opinion “as to
whether I had suffered any psychiatric injury as a result of what the ... Defendant had done to me.”22
S goes on to explain that from after the assaults she would suffer “panic attacks.”23 As a
child her grandmother took her to a doctor who thought these attacks were “growing pains.”24 She
saw a “sexual assault counsellor” in June and July, 1999, but it was not suggested to her by that
counsellor that the “Defendant’s conduct towards [her] was the cause of the panic attacks which
[she] had suffered over the years.”25 She says in her affidavit:
20. It never really occurred to me to blame the ... Defendant for the panic attacks or anxiety that I had been suffering. I thought that I suffered from that because I was not “normal” and that I was a bad person. I thought that that was why the ... Defendant had assaulted me as I
could think of no other explanation for what had happened to me. As such, I did not ever connect the ... Defendant’s assaults with me as the cause of what I had gone through until I read Dr. Grant’s report.
S also says that she has suffered over the years from depression. She says:26
21. I also suffered, over the years, from what I call depression. I just knew that I got depressed but was not putting the blame anywhere. I had been brought up by my parents to believe that one had to be responsible for your own actions and not to blame others for what happened to you. Over the years I did not think that what I suffered from was caused by the ... Defendant until I read the report of Dr Grant. I did not think that physical assaults committed upon me could affect me mentally until I read the report of Dr. Grant in this matter.
22. I did not understand, until I read the report of Dr. Grant, that I suffered from post traumatic stress disorder nor from a distorted personality development with avoidant and anxious traits. No person had ever told this to me before I read Dr. Grant’s report.
S’s affidavit concludes:
23. I also knew that over the years I suffered from pain in the neck and back. No physical cause for this was ever found but I did not ever think, prior to reading Dr. Grant’s report, that it might be the product of what the ... Defendant had done to me. Similarly, with chronic fatigue which I have suffered from over the years, I had had numerous investigations in order to try to establish the cause of that chronic fatigue and no abnormality was ever found. No person ever suggested to me that it might be caused by what the ... Defendant did to me and I did not think that that was a possibility.
In her evidence the following occurred:27
And you told them what you could but you didn’t mention these assaults? – evidence, from these assaults? — But I didn’t know that.
MR. MAHER: Had you been to doctors over the years about problems you thought you were having? – Yes
Yes. And were you trying to get help but really didn’t know how to go about it? Would that be fair to say? – I suffered from depression, bad neck and bad back and they told me it was all in my mind, there is nothing wrong with me.
and later:28
I am looking at paragraph 23 of your affidavit now. When you say that you had had numerous investigations to try and establish the cause of the chronic fatigue, do you mean you had been to see numerous doctors? – Yes.
What do you mean? – I had seen two doctors.
When did you see those doctors? – I don’t remember. I remember seeing Dr Hossack once and she took tests and she said there is nothing wrong with me, and I didn’t believe her so I went to another doctor and they said the same
thing, but I don’t remember when.
Did those doctors ask you if there had been anything in your life which was causing you anxiety or worry? – Yes, they did ask me.
No, I told them there was no stress in my life.
Dr. Grant, a Clinical Associate Professor in Psychiatry, saw S in his rooms on 27th
December, 2000, and furnished a report to her solicitors about a week later. He expresses his
conclusions as follows:
From the diagnostic point of view [S] can be seen as suffering from the following conditions resulting from the sexual abuse.
1. An anxiety disorder with panic attacks.
2. A distorted personality development with avoidant and anxious traits.
3. A post-traumatic stress disorder. This disorder is demonstrated by a number of symptoms that would satisfy the criteria for PTSD as outlined in DSM-IV of the American Psychiatric Association. Criteria satisfied are as follows.
a.
[S] was exposed to a series of traumatic events during her childhood that involved a threat to her physical integrity and actual injury. At the time of these events her response involved intense fear, helplessness, and horror.
b.
This traumatic event has been persistently re-experienced through recurrent and intrusive distressing recollections of the event, and acting or feeling as if the traumatic event was recurring. She has had intense psychological distress and physiological reactivity upon exposure to cues that remind her of the offences.
c.
She has persistently avoided stimuli associated with the trauma and has shown numbing of general responsiveness as evidenced by efforts to avoid thoughts, feelings, and conversations
associated with the trauma, feelings of detachment and
estrangement from others, and a restricted range of affect(inability to have loving feelings).
d.
There have been persistent symptoms of increased arousal as indicated by difficulty staying asleep, irritability, hypervigilance, and exaggerated startle response.
e.
This disturbance has been present for many years and has caused clinically significant distress and impairment in social functioning.
This chronic post-traumatic stress disorder would be rated as moderately severe.
[S] has had a number of physical symptoms over the years which can be seen as secondary to her anxiety. This includes fatigue and muscle tension causing neck and back pain, as well as pain to the temporo-mandibular joints from
muscle spasm of the jaws.
The essential basis of R’s application is set out in her affidavit filed on 7th March, 2001 and
which was read in this proceeding. In paragraph 7 of that affidavit she swears:
From the time the ... Defendant committed the assaults on me ... until 1 November 2000 I did not ever think that I would have any prospect of bringing any civil proceedings against the ... Defendant because there were no witness to any of the assaults and it would have been simply my word against his word. At the time of the assaults the ... Defendant had been an adult and I had been a child. I thought it would be unlikely that anyone would ever believe my word against his where the allegations which I would make against him were so serious. That was especially so as the ... Defendant was a member of Parliament. My view about the prospects of success in a civil action changed when the jury believed my word against his and he was convicted.
She goes on to say:
8. ... at the time of the trial, in October 2000, and particularly at its conclusion, I started to suffer emotional lability, and crying fits. At times I felt the need to scream or to cry. I noticed that I was very irritable and snappy with my husband and that I had to be very careful in order to control a lack of patience with children at the preschool that I teach at. I suffered nightmares for the first time, ..., and I felt angry and aggressive. At about that time I became preoccupied with thoughts of the ... Defendant on a daily basis. At the same time my appetite was poor, my concentration was poor and I had extreme memory difficulties. These conditions have continued until the pesent time. The first time that I ever suffered from these conditions, as opposed to the anger and resentment I felt towards the ... Defendant, was at about the time of the conclusion of the trial on 1 November 2000. I gave evidence at that trial as to the assaults perpetrated against me and was cross examined at length by counsel representing the ... Defendant. ....
9. Prior to 1 November 2000:
(a)
I did not think I could win a case against the ... Defendant; after his conviction, I think I can succeed in such an action; and
(b)
prior to that time, whilst I had anger and resentment against him, I had none of the symptomatology that I have suffered since that time.
Again the claim that there were no witnesses to the alleged assaults is surprising in that the
first incident described by R in her statement29 is said to have occurred in the classroom during class
time. She says that this incident “was repeated on numerous separate occasions in which [the
defendant] would call me to the front of the class.”30
In her evidence R said that she had suffered memory difficulties, and I understood her to be
saying that these difficulties predated the conviction of the defendant.31
Professor Grant examined R on 30th November, 2000 and his report dated the same day is
exhibited to R’s affidavit. The following is taken from that report:
... The four offences which were the subject of the charges are clearly recalled
by [R] but there are quite likely to have been a number of other offences for
which she has a less clear recall. She does not recall any of these other
possible offences as being more severe in nature, but she is really very unclear
about what they may have consisted of and is reluctant to try to recall anyfurther details for fear of the emotions that might be aroused.
From the nature of the offences is it (sic) clear that [R] would have been
significantly affected by the abuse that she was subjected to, and her reactions
at the time are not unusual. She did not tell anyone about what was
happening, but developed a deep and abiding hatred for the perpetrator. Over
the years since then she has often felt angry and had thoughts of vengeance
whenever Mr. D’Arcy has received publicity or she has heard someone
mention her school. However she did not tell anybody about the offences until
the police began their inquiries and interviewed her.The anger and resentment felt by [R] over the years has been the main result of the abuse which she experienced. These feelings have remained fairly confined to Mr. D’Arcy and the relevant events, and she has not developed a pervasive feeling of resentment towards the world or any significant personality disorder. Nevertheless she did have significant behavioural problems in high school, with constant testing of limits, and was eventually expelled from [a high school.] It is quite likely that this rebellious behaviour could have had some of its origins in the abuse from Mr. D’Arcy and the subsequent anger that she felt towards teachers and school discipline.
.... the abuse does seem to have shaped her attitude towards her career and
has caused her to be quite driven and committed to high standards in her
work.
....
.... She seems to have been able to compartmentalise the abuse and put it in
the past sufficiently so as not to affect her subsequent development and
relationships. Overall it would appear that over the years, up until the
charges were being investigated, [R] did not show symptoms suggestive of any
diagnosable psychiatric disorder.Since the case began, and particularly since it has concluded, [R] has shown more obvious symptoms of disturbance. She has had dysphoric and irritable mood, she has been emotionally labile, she has had some bad dreams and
significant sleep disturbance, and she has felt very angry with the process to
which she was subjected, particularly in regard to the publicity. These
symptoms represent an adjustment disorder with mixed emotional features
secondary to the trauma of the trial, the need to recall the past traumas, andthe way in which the legal proceedings were conducted.
The adjustment disorder currently being experienced by [R] will probably
settle down spontaneously over the next few months, and may not require any
psychiatric treatment. However [R] is now facing the issue of whether she
should receive some kind of ongoing counselling and assistance in coming to
terms with what happened to her as a child, and the current effects that she is
experiencing. Any decision about whether she has treatment has to be hers,
and such a decision will really depend upon whether she feels she is
functioning satisfactorily or experiencing ongoing symptomatology. Choosing
to forget about past traumas and put them in the background is a legitimate
way of dealing with these events, but not everybody finds this to be possible
and it may be that now that these events have come to the fore [R] is no
longer able to suppress them and put them in the past. She may therefore
need to have some kind of psychiatric treatment. In addition, if her
adjustment disorder symptoms do not settle down over the next couple of
months I would advise her to seek some psychiatric attention. If she does need
to seek treatment for the adjustment disorder, she will probably need about six
sessions of psychiatric treatment costing of the order of $160 per session. She
might also need antidepressant medication. If she chooses to have some
psychotherapy in relation to the child sexual abuse, she would probably need
of the order of 20 sessions of psychotherapy, costing approximately $160 per
session.Overall, I believe that [R] will make a satisfactory recovery from her adjustment disorder, given time, and that she will also make a satisfactory psychological adjustment to the sexual abuse and the subsequent trial. It is unlikely that there will be long term psychiatric sequelae. [R] has considerable personality strengths and has dealt with these issues in a positive way over the years. She has not developed a post-traumatic stress disorder and it is unlikely that there will be future development of any more significant psychiatric syndromes than she is currently exhibiting.
Dr. Grant gave oral evidence and was cross-examined. I think his evidence in chief can
largely be summarised as follows:32
1. In the 1970s there was “virtually no knowledge or understanding of sexual abuse;”
2. At that time (i.e., the 1970s,) it was “very unusual for a victim of sexual abuse to report it or to seek treatment;”
3. In the 1970s there was little community awareness of the existence of sexual abuse or of the problems experienced by victims of such abuse;
4. In particular, the medical profession generally shared the public lack of awareness of the existence of and problems caused by sexual abuse;
5. It was then (i.e., in the 1970s,) and still is, very difficult for the victims of sexual abuse “to bring themselves to report it;”
6. Victims of parental and teacher assaults “often entertain an irrational sense of guilt;”
Dr. Grant also gave the following evidence when being questioned by counsel for the
applicants:33
The passage34 which I was ... quoting ... goes on in this fashion, Doctor, “For this and other reasons they are generally reluctant to discuss it. Dr. Kippax was asked whether the applicant should reasonably have sought medical advice before she was 23 concerning her troubles. ‘At an intellectual level it sounds very reasonable’ she added: ‘ but ... human beings are not reasonable and not logical’ and the applicant’s omission to discuss it made her ‘no different to ... 99 per cent of sexually abused victims. They simply lived ... with the abuse.... They didn’t seek treatment then.’” Is that your experience? – Yes, that would be similar to my experience. I think that not only were people reluctant to seek treatment, but there was very little available.
In cross-examination of the doctor the following points emerged:35
7. Had the doctor (or any other competent psychiatrist) seen S ten years ago, and had he then been given the same material he had when seeing her on 30th November, 2000, he would probably have made the same diagnosis then as he does now;
8. Had S consulted with him professionally ten years ago he believed he would have been able to assist her;
9. If a patient does not provide an accurate history to a treating doctor then “if their history isn’t provided then you can’t make the diagnosis;”
10. Over the last eight years Dr. Grant has had patients complaining of sexual abuse referred to him by general practitioners - and “generally” he has been able to assist them;
11. By the mid 1990's there was “widespread understanding and debate on the issue of sexual abuse and its effects;”
12. By the 1990s “the medical profession’s awareness of the topic of sexual abuse was considerably broader than it was ... a decade earlier;”
13. Apart from the consequences of the trial process, R did not suffer from any diagnosable psychiatric disorder as a result of the respondent’s actions.
Dr. Grant also said this in cross-examination:36
It’s possible for anybody to misremember or misinterpret the past. That can happen in any normal person and certainly can happen in anybody also who has experienced traumatic events. You can’t necessarily assume that exactly what is remembered is exactly what happened, especially when there are many
years involved between the memory and - between the memory being related
and the events that actually occurred.
The defendant has filed an affidavit in each matter, and gave oral evidence at the hearing.
So far as the defendant’s affidavits are concerned he swears that he did not assault S and R,
but admits that he was convicted of the “allegations made by the Plaintiff[s]” in the Supreme Court
on 1st November, 2000. His appeal against those convictions was dismissed by the Court of
Appeal on 22nd August, 2001. He is presently seeking the leave of the High Court to appeal to that
court. Otherwise his affidavit deals with the issue of prejudice, the thrust of it being that so much
time has elapsed since the events complained of are said to have occurred that a fair trial is not now
possible. Much of his affidavit is argumentative rather than asserting facts.
He does refer in his affidavits37 to evidence that the school building in which he taught has
now been moved, and it is not now possible to ascertain the extent of any structural changes that
may have been made to it. He claims to have thereby lost the chance to take meaningful
photographs or measurements. He also alleges that it is now impossible to remember or ascertain
the seating configuration in the classroom at any relevant time.
| 37. | Paragraph 11. The defendant was cross-examined in respect of a number of matters. Many of them |
seemed to me to relate to his credibility. I can only say that, having watched him closely, and not
forgetting that he has been convicted of serious sexual offences against young children, I nonetheless
am persuaded that I should accept him as an honest and reliable witness on those factual issues
which emerged during the hearing other than whether or not he assaulted S and R whilst they were
students.
I accept that a school inspector by the name of Reithmuller visited the school unannounced
whilst the defendant was the teacher and that he (Reithmuller) prepared a report on his visit.38
Reithmuller is now over ninety years old, and has no memory of his visits to the school. It may well
be that the defendant was inspected by another inspector, Tomlinson, during the relevant time,
although the defendant does not recall his visits.39 Tomlinson is now dead. In respect of this issue
the defendant said:40
... Let’s start with paragraph 9 [of the defendant’s affidavit.] Is what’s in
paragraph 9 your lawyer’s ideas rather than yours? – No, I – I pointed out to
lawyers that many people were deceased in the area - within the area and that
- and I did - we did have copies of the school, in fact, or reports of the time
that had been - that had been tendered and the fact that they - they - thosepeople visited the school during the period and - and examined the children.
Later the defendant went on to say that he would get many visitors at the school during the
day.
pupils. by 18.
The following also occurred during the defendant’s cross-examination:41
.... can you go back to paragraph 8, please? You say there, ..., you were
informed by your solicitor “evidence will have to be sought from a variety of
persons, including other pupils who attended the school at the relevant times,
teachers or inspectors who may have attended the school, parents of students
and other persons, and many of these people cannot be found or are not
available.” Well, who are they? Who can’t be found? – Well, there are quite
a few that couldn’t be found at various times that we looked for during this
period.When you were being prosecuted criminally? – When we were being prosecuted we looked for people that the police hadn’t found, or people the police had found and there were quite a few that were not available at that stage or couldn’t be found.
But you don’t know whether they could give any useful evidence? – Well, there were some that could have.
On your case the most they could say was they never saw anything because there was nothing to see, isn’t that right? – There - depending on what you were talking about, because there were other allegations made by the police or
other claims made by the police that just weren’t true.
.........
So nothing ever happened. That’s your case, isn’t it? There was nothing for anybody else to ever see, isn’t that your case? — It is not the case that’s been put up, because in a small country school, in a small country school of 20 odd pupils they’re suggesting that these - these allegations took place in front of 20
Later the defendant said:42
You would have a good idea of who the students were at the school at any time? – Only from records, because I taught so many pupils you wouldn’t - over the years.
Certainly? – You would have to recall from records, but there are some pupils you remember more than others.
The defendant said that he had records from the Education Department, but not the rolls or
other “documentation.”
I have thus far sought to summarise the relevant legislation and evidence which pertains to
this matter. There is one other matter that I should mention before declaring the conclusions I have
reached.
Until the enactment of the Evidence Act 1977 the fact that the defendant had been
convicted of criminal offences would have been irrelevant, and hence evidence of the convictions
inadmissible, in civil proceedings against the defendant arising from those offences. The law was, as
expressed by the English Court of Appeal in Hollington v. F Hewthorn and Co. Ltd.,43 that the
verdict of the jury was “nothing more than its opinion based on facts which it did not witness.”44
The introduction of the Evidence Act 1977 on 1st January, 197845 changed the law. Now
section 79 of that Act provides that in proceedings such as these proof of the defendant’s
convictions will create a rebuttable presumption that he “committed the acts ... which at law
constitute that offence.”
In short, in this case, as it seems to me, if the plaintiffs were to tender a certificate of
conviction, or even the defendant’s own admissions that he has been convicted, the situation would
be, to all intents and purposes, that the defendant would essentially then carry the onus of showing
that he did not assault the plaintiffs as they allege.46
At the end of these reasons I have appended a chronology of what appear to me to be
dates which may be thought to be relevant to a consideration of the issues raised by these
applications. In the fourth column I list those matters which are common to both applications. In
the fifth I deal with those relating to S, and in the sixth, those relating to R’s application. In the
second column I have set out the number of approximate years that have elapsed between when the
defendant ceased teaching at the school and the event listed in column four or five or six. Likewise,
the figure in the third column represents the number of years since the defendant commenced
teaching at the school and the relevant event.
The application is brought pursuant to the provisions of section 31 of the Act. That section
applies only to actions for “damages for negligence, trespass, nuisance or breach of duty ....” The
claim is for damages for “negligence and/or assault.”
It has concerned me whether when parliament used the word “negligence” in the section it
intended that the word should be understood to include allegations of intentional assaults such as are
alleged to have occurred in this case. Likewise, is the reference to “trespass” intended to include the
tort of battery? Neither of these matters was raised before me, and as both counsel clearly made
their submissions on the basis that the claims made here came within the section I will assume in
favour of the applicants that their claims are indeed properly characterised as being for “damages
for negligence, [and/or] trespass.”
On that assumption, the next thing that must be shown is that, in each case, a material fact of
a decisive character relating to the right of action was not within the means of knowledge of the
applicant until after 1st March, 1977 (i.e., “the commencement of the year last preceding the
expiration of the period of limitation for the action.”)47 As the claim was filed on 27th February,
2001, it will also be necessary for the applicants to show that the material fact came to each of their
knowledge after 20th February, 2000.
In both applications the applicants rely upon the fact of the defendant’s convictions on 1st
November, 2000 as being a “material fact of a decisive character relating to the right of action.”
It seems to me that the fact of the defendant’s convictions does not come within the scope
of the list of matters specifically referred to in sub-section (a) of subsection (1) of section 30 of the
Act. The fact of the occurrence of the assaults was well known to both S and R and the identity of
the perpetrator of those assaults was equally well known to them. The fact of the convictions is not
relevant to the last three matters listed in the last three sub-sections.
The list of matters in sub-section (1) of section 30 is not exhaustive - it is clearly inclusive.
So the question still remains for consideration, is the fact of the defendant’s convictions a “material
fact relating to [the] right of action.”
Prior to 1st January, 1978, as I have pointed out, the fact of the defendant’s convictions
would have been irrelevant and hence inadmissible during a civil trial based on the facts alleged in
this case. After that date, the fact of the convictions is rendered admissible by virtue of section 79
and indeed, as I have pointed out above, creates a rebuttable presumption (in the circumstances of
this case) that the defendant did the things which are alleged against him.
In my view, the fact of the convictions (so long as they stand) is, in the circumstances of this
case, a fact which “relates to [the] right of action.” It is a fact which goes to facilitate proof of the
tortious acts.
Further it seems to me the fact of the defendant’s convictions is, in the circumstances of this
case, clearly of a decisive character. There is much force in the applicants’ counsel’s submission
that had the applicants gone to a competent lawyer prior to the convictions the likelihood is that such
a lawyer would have been slow to advise the bringing of an action. Such a lawyer would consider
that on the one hand there was the uncorroborated account of the applicant, neither of whom had
made fresh complaint, against the word of a man who had been many times elected to parliament by
the electors of two electorates, and who had played a significant part in political affairs in
Queensland over many years.
I therefore hold that each applicant has shown that “a material fact of a decisive character
relating to the right of action was not within the means of knowledge of the applicant until a date
after the commencement of the year last preceding the expiration of the period of limitation for the
action.”
Each applicant has urged upon me that there was a further fact which might bring them
within the section. In case I should be held to be wrong in the decision I have just announced, I
should deal with these further submissions. I shall do so briefly. The facts relied on in each case are
different.
S relies upon the fact that “until she saw Dr. Grant, or read his report, she was not aware of
the nature and extent of the personal injury caused to her.”48
It is clear that S has had a number of problems in her life. She has been aware of the
problems, and from time to time has sought help from doctors in respect of them. Prior to consulting
with Dr. Grant she had not told any of the doctors with whom she consulted of her treatment by the
defendant.
I accept that in the 1960's and 1970's it may well have been the case that even appropriate
medical specialists, assuming they had been told all by S, may not have come to the conclusions that
Dr. Grant has now reached. The evidence is, however, that Dr. Grant at least feels that by the early
1990s he and his colleagues were much more aware of many of the issues arising from child sexual
abuse, and he feels he would have been able to appropriately diagnose and treat S had she
consulted with him and told him of her childhood experiences.
Indeed, I am satisfied that by the early 1990s there was a far greater public awareness of
the prevalence of and the insidious consequences of child sexual abuse. There is evidence in this
case to that effect, and, in any event, it would seem to me to be a matter of notoriety which I can
properly take into account.
I fully accept that often child victims of sexual abuse will find it very hard, if not impossible,
to tell others of their experiences. I also accept that when such a victim becomes an adult, it will
continue to be extremely difficult for such a person to tell a doctor of the abuse. The mere fact that
she has been silent for so long will compound the problems in relating the abuse, let alone in
persuading others that it in fact occurred.
However, the facts in this case are that, despite these difficulties, S did in fact tell an
investigating police officer of her experiences on 28th September, 1998.
In essence, S was in the early 1990s aware of numerous health problems which she had.
She had sought help in respect of them, but had not divulged to those from whom she was seeking
help the facts relating to the defendant’s conduct. Whilst one can understand her reluctance to raise
such matters with her advisors, it seems to me that by the mid-1990's her failure to do so was not
reasonable.
In short, I do not consider that S has shown that she took “all reasonable steps to find out
the facts” before 30th November, 1999,49 and hence it has not been shown that the material fact
relied upon was “not within [her] means of knowledge.”
In the case of the application by R the additional fact relied upon is expressed in her
counsel’s written submissions in the following terms:
that until the Plaintiff saw Dr. Grant there was no evidence which would have
supported a worthwhile action so far as quantum is concerned and what she
was told by Dr. Grant, or realised upon reading his report, was a materialfact.
Had R spoken with a lawyer prior to seeing Dr. Grant, and had she then sought advice on
the amount of any damages which might be awarded to her should she succeed in an action against
the defendant, the lawyer would have had to take into account a number of factors. The first would
be her initial pain and suffering for which she should be compensated. The indignity that the
defendant’s acts occasioned her might well lead to a conclusion that some amount should be
included in any advice for aggravated damages. The lawyer would also have had to take into
account the extent to which her enjoyment of life, or, as it sometimes called, loss of the amenities of
life, had been diminished over the years because of her continuing anger and outrage at the
defendant’s actions.
Quantification of such a claim would have been extremely difficult. That is not to say, of
course, that an experienced solicitor or barrister might not have been able to give her meaningful
advice on what she might expect to be awarded should she successfully pursue her claim.
The argument advanced by counsel for R is that Dr. Grant’s advice introduced a new
element, as it were, into the equation - or rather into the calculation of the anticipated damages - so
as to tip the balance in favour of her bringing an action.
The advice of Dr. Grant amounts to this:50
2. the nature of the abuse was such that she would have been significantly affected by it;
3. she has maintained a “deep and abiding hatred for the perpetrator;”
4. she has over the years felt angry and had thoughts of vengeance against the defendant;
5. there is a likelihood that some rebellious behaviour on her part as a teenager at high school “could have some of its origins in the abuse;”
6. she “seems to have been able to have compartmentalised the abuse and put it in the past sufficiently so as not to affect her subsequent development and relationships;”
7. until the charges were being investigated she did not show any symptoms of any diagnosable psychiatric disorder;
8. since the investigation began, and particularly since it was concluded, R has shown more obvious symptoms of disturbance. The symptoms “represent an adjustment disorder with mixed emotional features secondary to the trauma of the trial, the need
to recall the past traumas, and the way in which the legal proceedings were
conducted;”9. the adjustment disorder currently being experienced by her will “probably settle down spontaneously over the next few months, and may not require any psychiatric treatment;”
10. R is now facing the issue of whether “she should receive some kind of ongoing counselling and assistance in coming to terms with what happened to her as a child, and the current effects that she is experiencing;”
11. it may be that R will no longer be able to suppress them and put them in the past, and she may therefore need some psychiatric treatment. Indeed, if the adjustment disorder symptoms do not settle down over a couple of months his advice wold be
for her to seek psychiatric attention. This might cost in the order of $960.00. If she
chose to have some psychotherapy in relation to the abuse this would cost of the
order of $3,200.00;12. Dr. Grant’s view was that R will make a satisfactory recovery from the adjustment disorder, and she will also make a satisfactory psychological adjustment to the sexual abuse and the subsequent trial. It is unlikely that there will be any long term psychiatric sequelae.
Much of what is set out in the above summary of Dr. Grant’s conclusions was known to R,
and could have been conveyed by her to a competent legal advisor long before 27th February,
2000. It really seems to me that the only “new” information brought to light by Dr. Grant was that
her feelings following the trial amount to an adjustment disorder, and that it may now be necessary
for her to seek professional assistance both in respect of that disorder and also to help her deal with
the memory of the abuse. Bearing in mind the doctor’s opinion that the likelihood is she will make a
“satisfactory recovery” from her problems, and that it is unlikely there will be any long term
psychiatric sequelae, it seems to me that these new components would be unlikely to have so altered
the advice that the fictitious lawyer would have given her as to quantum as to persuade her that it
was now in her interests to bring an action.
I am not persuaded that the information obtained by R from Dr. Grant was, within the
meaning of the Act, a material fact of a decisive character relating to the right of action.
As both applicants have persuaded me that a material fact of a decisive character was not
within their means of knowledge until 1st November, 2000 I next have to consider whether there is
“evidence to establish the right of action.” Clearly there is.
The applicants have thus fulfilled the primary requirements of the Act, and hence I have
jurisdiction to make the order they seek. The question still remains, however, as to whether, in the
exercise of the discretion vested in me, I should make the orders sought.
The High Court in Brisbane South Regional Health Authority v. Taylor51 has made clear
the proper approach to the task that I have. Dawson J. expressed concisely a number of aspects of
that approach in the following terms:52
... s. 31 of the Limitation of Actions Act 1974 (Q) does not confer upon an
applicant for an extension of time a presumptive right to an order once the
two conditions laid down by sub-s (2)(a) are satisfied. The section confers a
discretion upon a court to extend time and that discretion should only be
exercised in favour of an applicant where, in all the circumstances, justice is
best served by so doing. The onus of satisfying the court that the discretion
should be exercised in favour of an applicant lies on the applicant. To
discharge that onus the applicant must establish that the commencement of an
action beyond the limitation period would not result in significant prejudice to
the prospective defendant. I agree with McHugh J. that, once the legislature
has selected a limitation period, to allow the commencement of an action
outside that period is prima facie prejudicial to the defendant who would
otherwise have the benefit of the limitation.
In this case the defendant in his affidavit has raised a number of issues which he asserts show
that he would be unfairly prejudiced if the matter were now to proceed to a hearing. As I have
observed, much of his affidavit material is argumentative, but perhaps that is understandable in the
circumstances.
I have already observed that the enactment of section 79 of the Evidence Act 1977 will, if
this matter goes to trial, enable the applicants (assuming the defendant’s convictions stand) to
facilitate proof of their cases by proof of his convictions. I do not think it is overstating matters to
say that as a result of that provision the onus of proof will, to all intents and purposes, be cast upon
the defendant to show he did not do the acts charged against him. Of course, as a matter of law, the
onus will still be on the plaintiffs to prove their cases, but the practical consequences will be as I
have indicated.
The prejudice to the defendant occasioned by this change of the law is clear. However, it
seems to me that that prejudice is not appropriate for me to take into account in considering this
application. It is prejudice resulting from a procedural change, introduced by the parliament for
reasons which, no doubt, were thought to be sufficient to the parliament, but which cannot concern
me. I therefore do not intend to take into account any prejudice to the defendant flowing from this
change in the law. If I were wrong in this approach, I indicate that I would regard the prejudice
caused by the change as being so great as to by itself lead me to refuse the applications.
As appears in the schedule I have annexed to these reasons, I have worked on the basis that
the defendant left the Yalleroi State School in June, 1965,53 and that that date represents the last
possible time on which any of the alleged assaults took place. That was thirty-seven years ago.
This matter is still at the pleading stage. The High Court on 5th March, 2002 gave special leave to
the applicants to appeal to that Court against orders of the Court of Appeal setting aside orders I
had made in respect of pleading points involving the applicants’ case against the first and second
defendants. Pursuant to the order of the Court of Appeal the applicants may wish to re-plead their
cases against the first and second defendants. It seems to me that if this matter is to proceed to trial,
the likelihood is that it would not come on until late next year. And that assumes that there will be no
other appeals. In short, the trial would take place at least 38 years after the last date the complained
of acts could have been committed on.
The defendant has made it clear in his affidavit and in his oral testimony that, notwithstanding
his convictions, he denies that any improper contact occurred between him and the applicants whilst
he was their teacher. If he were to give evidence in a trial of these matters he would, essentially, be
seeking to prove a negative. In short he would be asserting, “I was there, and nothing untoward
happened,” or perhaps, “If something was observed which might create suspicion, there is in truth an
innocent explanation, and the observer must have misunderstood what he or she was seeing.”
case, it would not in any way affect my ultimate conclusions in these applications.
This case is unlike many involving allegations of sexual misconduct by an adult against a child
in that many of the acts particularised in the claims are said to have occurred in a classroom whilst
other children were present.54 Thus there were perhaps of the order of fifteen to twenty potential
witnesses to some of the defendant’s alleged acts.
Often in cases involving allegations of sexual misconduct by an adult towards a child the
only way a defendant can defend the claims (apart from asserting a straight out denial) is to identify
what might loosely be referred to as “collateral issues” and to demonstrate that in respect of those
issues the plaintiff’s memory (or that of her witnesses) is unreliable. Everyday experience in the
criminal courts shows that often such issues can arise unexpectedly during the course of evidence.
With the passage of the years, the ability of the defendant to identify such evidence, and then
contradict it, is clearly diminished.55
In this case there is evidence that the two school inspectors who visited the school during the
time the defendant was the only teacher are unable to give meaningful evidence. The school building
has been moved, and an inspection of it may not really assist in understanding the layout of the
rooms in the early to mid 1960s. The defendant cannot remember visits by one of the inspectors.
The claims made by the applicants involve allegations that they have suffered not only the
physical pain associated with some of the assaults, but psychological56 or psychiatric damage as
well. Both of them have troubles with their memory. S, for example, gave evidence that she could
not remember when she had seen an unnamed doctor about her troubles, and R described herself as
having “extreme” memory difficulties. It seems to me that it would be a legitimate field of inquiry for
the defendant, were these actions to proceed, to ascertain what traumatic or other significant events
might have affected the applicants’ well being. It should be remembered that essentially that inquiry
would cover events from the applicants’ adolescence and encompass their entire adult lives.
In Brisbane South Regional Health Authority v. Taylor57 Toohey and Gummow JJ. said:
... an applicant must satisfy the court that grounds exist for exercising the
discretion in his or her favour. There is an evidentiary onus on the prospective
defendant to raise any consideration telling against the exercise of the
discretion. But the ultimate onus of satisfying the court that time should be
extended remains on the applicant. Where prejudice is alleged by reason of
the effluxion of time, the position is as stated by Gowans J. in Cowie v. State
Electricity Commission (Vict.) in a passage which was endorsed by Gibbs J. in
Campbell v. United Pacific Transport Pty. Ltd.:It is for the respondent to place in evidence sufficient facts to lead the Court to the view that prejudice would be occasioned and it is then for the applicant to show that those facts do not amount to material prejudice.
In my view the applicants have not established that the commencement of an action beyond
the limitation period would not result in significant prejudice to the defendant. Whilst perhaps the
matters I have just mentioned above may seem comparatively insignificant, in cases involving
allegations such as are made here it is often the case that evidence which at first seems innocuous
assumes significance during the course of the trial.
Quite apart from the specific findings I have just made, it seems to me that the applicants’
task of discharging the onus placed upon them by the section is onerous indeed bearing in mind the
time that has elapsed between the events complained of and today. I think it is right to observe that
in none of the cases to which I was referred by counsel has a court been asked to consider making
an order for an extension of time so long after the tortious act is said to have been committed. I
think the delay here of at least thirty-seven years renders it almost impossible to conclude that there
would not be significant prejudice to the defendant in this case and that a fair trial is possible.
There is, I think, authority which acknowledges that in cases of considerable delay the fact
of that delay may of itself lead to a conclusion that a fair trial is not possible. Thus, in Taylors
Case58 McHugh J. suggests that “long delay [gives] rise to a general presumption of prejudice.”
The trial judge in that case, McLauchlan D.C.J., had referred to the words of Tadgell J. in Kosky v.
Trustees of Sisters of Charity:59
There are no doubt some cases in which a lapse of fourteen years from the time of allegedly negligent conduct until the commencement of an action in respect of it would of itself render a fair trial of the issues impossible or so unlikely that a trial ought not to be countenanced. In such a case it would presumably be right to refuse to make an order ... even if the applicant were
otherwise entitled to ask for one.60
In Helen May Carter v. The Corporation of the Sisters of Mercy of the Diocese of
Rockhampton and Ors.61 McPherson JA observed that the reasons for judgement in Taylor’s
Case “suggest that there may be a presumption of prejudice to the third defendant in having to
defend itself at a trial taking place after such a long time; ...” More recently, in a case which has a
number of similarities to the one I have to consider, Dutney J. said:62
This is a good example of the type of case where time alone is likely to cause great prejudice to the defendant. ... It is hard to imagine that after 27 years anyone except perhaps the plaintiff will have a clear recall of events. ...
As I have observed, at the time this matter was argued before me, at least thirty-seven years
had elapsed since the last possible date on which an outrage could have been perpetrated by the
defendant on either applicant. After such a period, I find it impossible to conclude that prejudice will
not be occasioned to the defendant by such delay. In my view his chances of a fair trial are
significantly reduced because of such delay.
The applicants have not discharged the onus of persuading me that a fair trial is now
possible. In fact, in my view, the time that has now elapsed since the events complained of took
place make the chances of a fair trial unlikely.
It may perhaps trouble some that in a case where a criminal trial has taken place, and
convictions ensued, that our legal system should deny the complainants the right to pursue their
violator for compensation by civil action. It is not my function to seek to explain, let alone seek to
resolve any such apparent incongruity. My task is to apply the law as I understand it to the facts as
I find them. I would simply observe that in Taylor’s Case63 McHugh J. sets out his understanding
of the reasons why, for the last 400 years, parliaments have chosen to provide that, as a general
rule, civil actions shall be prosecuted within a specified time period. With very few exceptions, there
are not similar provision in the Criminal law, presumably because it is thought by the legislature that
the public interest demands that those alleged to have committed serious offences should be
prosecuted.
I feel I should add this, however. As the evidence in this case amply demonstrates,
society’s understanding of the incidence and devastating consequences of the sexual abuse of
children has changed dramatically since the applicants were first enrolled at the Yalleroi State
School. Furthermore, society’s attitude towards its responsibilities to the innocent victims of crime
have changed. At the time the applicants were primary school children the only avenue open to
victims who sought compensation for the harm done to them was to litigate in the civil courts. In the
late 1960s parliament acknowledged, by enacting section 663B and 663C of the Criminal Code,
that it could be appropriate for victims to receive compensation from the public purse. We now
have parliament’s virtual “Bill of Rights” for victims set out in Part 2 of the Criminal Offence
Victims Act 1995, which is said to emanate from “national and international concern about the
position of victims of crime in the justice system.”64
I assume for the purpose of these observations that the defendant’s convictions were
appropriate and will be sustained. On the basis of that assumption, it has to be said that each of
these applicants rendered an important service to the community in coming forward, with others, to
give evidence against him. It was very apparent to me during the brief evidence that each of them
gave that it must have taken extraordinary courage to do so, and each has paid a very high price for
having done so.
I would think that most would be of the view that, on the assumption set out above, it is only
right that each of them should receive from the community compensation for their pain and suffering
and other losses.
The applications must be dismissed.
I order that the applicants pay the respondent/third defendant’s costs of and incidental to the
applications to be assessed.
As I must hand down these reasons in Bundaberg, I will give liberty to apply in respect of
any costs incidental to the application which may have been reserved at earlier mentions of these
matters.
H. W. H. Botting, D.C.J.
SCHEDULE
| Date | Matters Common to both Applications | Matters Relating to S's Application | Matters Relating to R's Application |
31-Aug-55 S born 21-Apr-56 R born
| January, 62 | R in Grade 1 at Yalleroi SS. |
| January, 63 | R in Grade 2 at Yalleroi SS. |
29-Jan-63 Defendant starts teaching at Yalleroi SS
20-Oct-63 1 S enrolled in Grade 4 at Yalleroi SS
| January, 64 | 1 | S in Grade 5 at Yalleroi SS | R in Grade 3 at Yalleroi SS. |
1965 2 Defendant joins the ALP
| January, 65 | 2 | S in Grade 6 at Yalleroi SS | R in Grade 4 at Yalleroi SS. |
30-Jun-65 2 Defendant ceases teaching at Yalleroi SS
1972 7 9 Defendant elected as the member for Albert
31-Aug-73 8 11 S's 18th Birthday
1974 9 11 Defendant loses the seat of Albert
21-Apr-74 9 11 R's 18th Birthday
1-Mar-75 10 12 Age of Majority Act comes into force S attains her majority R attains her majority
1-Jul-75 31-Aug-76 11 14
10
12 Limitation of Actions Act 1974 commences
S's 21st Birthday
1977 21-Apr-77 12 14
12
14 Defendant elected as the member for Woodridge
R's 21st Birthday
1-Jan-78 13 15 Evidence Act 1977 comes into force 1-Mar-78 13
15 Third anniversary of Age of Majority Act End of Limitation Period End of Limitation Period
31-Aug-79 14 17 S's 24th Birthday
1980 21-Apr-80 15 17
15
17 Defendant elected Deputy Leader
R's 24th Birthday
1998 33 35 Defendant elected Deputy Speaker
21-Sep-98 33 36 R gives statement to Police 28-Sep-98 33 36 S gives statement to police
October, 99 34 37 Committal Proceedings
2000 35 37 Defendant resigns from Parliament. 1-Nov-00 35 38 Defendant convicted of 18 offences 30-Nov-00 35
38 Dr. Grant signs report relating to R
2-Jan-01 36 38 Dr. Grant signs report relating to S
27-Feb-01 36 38 Claim and this application filed Claim filed
13-Mar-01 36 38 Application filed
21-Jun-02 37 39 Rulings in these applications made. 1. In fact the Notices of Intention to Defend in these proceedings were not filed until 6th February, 2002. In paragraph 7 of the Defences the statute of limitations is pleaded.
2. In the Defence of the Third Defendant it is alleged that he was not a teacher at the school after 30th June, 1964 (paragraph 4(a),) but it is clear from his evidence (which I accept on this point) that that was an error, and that he was teaching at Yalleroi State School until at least mid-1965.
3. See paragraph 4 of the Statement of Claim.
4. In the defence it is alleged that S was not a pupil at the school between the alleged dates as “she left and attended another school during that time.” (See paragraph 2(b) of the Defence.)
5. See paragraph 4 of the Statement of Claim.
6. Paragraph 5 of each statement of claim.
8. See section 5(7)(a) of the Act.
9. Section 5(1) of the Act.
10. Section 5(2) of the Act.
11. See Section 2 of the Age of Majority Act 1974 and the proclamation made on 14th November, 1974 published in the Queensland Government Gazette, No. 49, 16th November, 1974, at page 1083.
12. Sub-section (c) of sub-section 2 of section 29 of the Limitation of Actions Act 1974.
13. Her evidence is that at the time of the Defendant’s committal S realised that others were making allegations against the defendant, but this “didn’t change [her] mind at all” as to whether she might be believed. See page 13 of the transcript.
14. The statement is Exhibit “A” to her affidavit. See paragraphs 22 to 28.
15. It would seem S told Dr. Grant that the students told her that they had seen what had happened in the classroom. See page 2 of his report of 2nd January, 2001, which is Exhibit “C” to her affidavit.
16. Pargraphs 29 to 41.
17. Paragraph 39.
18. See also Dr. Grant’s account of his conversations with S at page 3 of his report of 2nd January, 2001. However, later in the report, a more confusing picture is presented - see page 5.
19. Transcript, page 14.
20. Transcript, page 11.
21. Paragraphs 13 and 14.
22. Paragraph 15.
23. Paragraph 16.
24. Paragraph 17.
25. Paragraph 18.
26. Paragraph 21.
27. Transcript, page 15.
28. Transcript, page 18.
29. Exhibit “A” to her affidavit, paragraphs 11 to 13. It may be that R believes other students could not see the assault as she stood behind the defendant’s desk.
30. Paragraph 14 of the statement.
31. Transcript, page 22.
32. The following points are taken principally from page 41 of the transcript.
33. Page 41 of the transcript.
34. The reference is to the judgment of Byrne J. in Tiernan v. Tiernan (not reported, No. 39 of 1992, 22nd April, 1993.) Rather than quoting entirely from the transcript (page 41) I have quoted directly from the Butterworths Unreported Judgments Service, which was handed to me by counsel, as I am confident counsel quoted accurately from the judgment.
35. Transcript page 42 and following.
36. Transcript page 46.
38. The defendant in his affidavits refers to an affidavit of Donna Stevenson filed on 15th March, 2001. That affidavit was not read in this application by either counsel.
39. Transcript, page 29.
40. Transcript, page 29.
41. Transcript, page 31.
42. Transcript, page 32.
43. [1948] K. B. 587
44. See Cross on Evidence, J. D. Heydon, Volume 1, page 5086, paragraph 5200. See also the helpful discussion in Working Paper on a Bill to Consolidate, Amend and Reform the Law of Evidence prepared by the Queensland Law Reform Commission and held in the Supreme Court Library.
45. See Section 1(1) of the Act.
46. This could conceivably lead to further delay. If the defendant were to be given leave to appeal to the High Court against his convictions a judge hearing the matter might well take the course adopted in Re Raphael; Raphael v. d’Antin [1973] 1 W.L.R. 998; [1973] 2 All E.R. 19 and adjourn the trial until the appeals had been determined.
47. It is interesting to observe that section 31 refers in sub-section (2)(a) to “the period of limitation for the action” which in this case would be three years from, at latest, 30th June, 1965 (the last time the alleged torts might have been committed..) Section 29 provides that in the case of a child action may be brought within six years of the plaintiff’s ceasing to be a child “notwithstanding that the period of limitation has expired.” In other words, it does not seem to enlarge the period of limitation, but rather provides that action may be brought even though the period of limitation has expired. By way of contrast, section 31 provides that if an order is made “the period of limitation is extended accordingly.” I do not know whether there has been any discussion of this aspect by any court of authority. It is not necessary for my decision in this matter to resolve any ambiguity if any in fact exists.
48. Quoted from the applicant’s counsel’s written submissions.
49. That is, a year before she saw Dr. Grant.
50. These are all taken from the doctor’s report which is exhibit “B” to her affidavit filed on 7th March, 2001.
51. [1996-1997] C.L.R. 541
Ibid, page 544.
53. It may be that in fact he did not leave until the end of 1965. If that were shown to be the
54. See sub-paragraphs (d) and (e) of paragraph 4 of S’s affidavit, and sub-paragraphs (a) of paragraph 4 of R’s affidavit. According to her statement (Exhibit “A” to her affidavit) the conduct complained of by R and particularised in sub-paragraph (a) was “repeated on numerous occasions in which Mr. D’ARCY would call me to the front of the class.”
55. Muir J. touches on this point in his judgement in Helen May Carter v. The Corporation of the Sisters of Mercy of the Diocese of Rockhampton and Ors. (Not reported, Court of Appeal, Appeal No. 8777 or 2000, 24th August, 2001) at paragraph 38 of his judgement.
56. Dr. Grant does not refer to the applicants’ problems as being psychological, but it seems to me that much of what he is describing is best seen as psychological damage rather than psychiatric.
57. [1996] 186 C.L.R. 541, 547
58. [1996] 186 C.L.R. 541, 556.
59. [1982] V.R. 961, 969
60. I have taken the quotation from the joint judgements of Toohey and Gummow JJ. at pages 547-548 of the report of Taylor’s Case.
61. Not reported, Court of Appeal, No. 8777 of 2000, 24th August, 2001, at page 7.
James Howard Lambert v. Gregory Ian Bannerman, not reported, Supreme Court of Queensland, Rockhampton, No. S289 of 2001, 21st September, 2001, page 5. That was a case in which one of the proposed defendants was a school principal who had in 1975 been convicted of sexually assaulting pupils in 1974. The convictions did not relate to the assaults alleged against him in the civil proceedings.
63. [1996-1997] 186 C.L.R. 541, 551 ff.
64. Section 4.
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