ZYX (pseudonym initials) v JD (pseudonym initials) [No 2]
[2021] WADC 20
•18 MARCH 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: ZYX (pseudonym initials) -v- JD (pseudonym initials) [No 2] [2021] WADC 20
CORAM: BIRMINGHAM QC DCJ
HEARD: 30-31 JULY, 5 AUGUST 2020
DELIVERED : 18 MARCH 2021
PUBLISHED : 7 FEBRUARY 2023
FILE NO/S: CIV 874 of 2019
BETWEEN: ZYX (pseudonym initials)
Plaintiff
AND
JD (pseudonym initials)
Defendant
Catchwords:
Civil procedure - Stay application - Right to bring fresh application - Material non-disclosure by plaintiff on hearing of first application - Material change in circumstances warranting re-hearing of application
Civil procedure - Stay application - Delay - Loss or destruction of material documents - Relevant principles - Whether defendant can have a fair trial
Civil procedure - Stay application - Right to silence in potential criminal proceedings - Relevant principles - Whether criminal proceedings 'on the cards'
Civil procedure - Stay application - Abuse of process - Whether plaintiff's claim is pursued as a private prosecution of alleged criminal conduct by the defendant
Civil procedure - Stay Application - Limitation Act - Whether a fair trial is not possible - Factors to be considered
Legislation:
Criminal Code, s 183, s 321(3), s 321(4), s 552
Limitation Act 2005 (WA), s 6A
Result:
(a) Application for stay refused
Representation:
Counsel:
| Plaintiff | : | Mr T J Hammond |
| Defendant | : | Mr M J McPhee |
Solicitors:
| Plaintiff | : | Rightside Legal |
| Defendant | : | MJ McPhee Barrister And Solicitor |
Case(s) referred to in decision(s):
Andrew Koh Nominees Pty Ltd as trustee for KL Unit Trust v Pacific Corporation Ltd [No 3] [2010] WASC 248
Australian Securities and Investments Commission v Craigside Company Ltd [2013] FCA 201
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Briginshaw v Briginshaw (1938) 60 CLR 361
Citation Resources Ltd v Landau (2016) 116 ACSR 410
Connellan v Murphy [2017] VSCA 116
Estate of Judd v McKnight [2018] NSWSC 1489
Gorman v McKnight [2020] NSWCA 20
Helton v Allen (1940) 63 CLR 691
Hocking v Bell (1945) 71 CLR 430
Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce (1988) 85 ALR 640
Jack Brabham Holdings v Minister for Industry, Technology and Commerce (Button) (1988) 85 ALR 640
Jago v District Court of New South Wales (1989) 168 CLR 23
Jonesco v Beard [1930] AC 298
Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79
McMahon v Gould (1982) 7 ACLR 202
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218
Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121
Phoenix Eagle Company Pty Ltd v Ardrey [No 2] [2016] WASC 417
R v Edwards [2009] HCA 20; (2009) 255 ALR 399
Reid v Howard [No 2] (1995) 184 CLR 1
Rejfek v McElroy (1965) 112 CLR 517
The Council of Trinity Grammar School v Anderson [2019] NSWCA 292
Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53; (2018) 93 ALJR 1; (2018) 272 A Crim R 69
Wentworth v Rogers (No 5) (1986) NSWLR 534
ZYX v JD [2019] WADC 164
BIRMINGHAM QC DCJ:
The plaintiff commenced proceedings against the defendant on 7 March 2019, claiming damages for child sexual abuse suffered by her during a period between 1968 to mid-1973. The plaintiff was aged between 12 to 17 years at the time.
The plaintiff claims damages for psychiatric harm suffered as a result of the alleged breach of duty of care and/or battery or a series of batteries. The plaintiff also claims exemplary, punitive and/or aggravated damages in respect of an alleged aggravation of her injuries as the result of ongoing sexual abuse or sexual behaviour and harassment by the defendant from 1974 to 1991 when the plaintiff was then aged between 18 and 36.
Upon entering a conditional appearance to the writ the defendant applied to have the action be permanently stayed on three grounds:
(i)That the proceedings are oppressive because they prejudiced the defendant's right to silence in the face of the possibility that the defendant would be charged with criminal offences out of the same alleged sexual abuse pleaded in the statement of claim;
(ii)That the proceedings are an abuse of process because the action in substance is a private prosecution by the plaintiff using the processes of the civil court to prosecute a criminal case and in so doing removing the defendant's protection including adverse inferences arising from his right to silence and the requirement of proof beyond reasonable doubt to sustain the claim; and
(iii)That the defendant's conduct of his defence of such allegations has been irretrievably prejudiced by reasons of the delay in the proceedings.
The first stay application was heard by his Honour Chief Judge Sleight on 10 June 2019. West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd were granted leave to intervene and be heard on their application for leave to publish details of the plaintiff's claim. On 26 September 2019 the defendant's application to stay was dismissed - his Honour being satisfied that none of the grounds had been made out.[1] His Honour further made orders anonymising the parties and restricting the publication of details of the plaintiff's claim against the defendant.[2]
[1] ZYX v JD [2019] WADC 164.
[2] ZYX v JD [106] - [109].
By an application dated 11 May 2020 the defendant sought to re‑agitate the stay application - citing the plaintiff's failure to disclose a number of relevant matters when the first application was heard and, further, changed circumstances.
The matters identified by the defendant are:
(i)The plaintiff's failure to disclose on the hearing of the first application:
(a)that in 2005 or 2006 the plaintiff had destroyed documents that are said to be relevant to the plaintiff's allegations against the defendant, namely some 29 diaries maintained by the plaintiff for the period from 1968 to 1998;
(b)the plaintiff's communication and correspondence with the Office of the Director of Public Prosecutions (ODPP) and the Attorney General from May 2018 to November 2018 relevant to the prosecution of the defendant and the removal of any statutory limitation on the bringing of such prosecution; and
(ii)The plaintiff's notice of her intention to adduce propensity evidence upon her trial - such evidence relating to other alleged sexual offending by the defendant against 'TT' (anonymised) in 1988, 1994 and 1995.
The defendant says that the impact of the additional matters, in combination with the matters known and considered on the first application is such that:
(i)The conduct of his defence of such allegations has been irretrievably prejudiced by reason of the delay in the proceedings and the destruction of important documents, namely the plaintiff's diaries, such that it is no longer possible for the defendant to receive a fair trial; and
(ii)The proceedings are oppressive because they prejudice the defendant's right to silence in the face of a real possibility that the defendant may be charged with criminal offences out of the same alleged sexual abuse pleaded in the statement of claim - that is to say, the prosecution of the defendant in respect of matters arising out of the plaintiff's claim and the proposed propensity evidence to be adduced from TT is 'on the cards'.
The plaintiff opposes the application on three grounds:
(i)That the second stay application is an abuse of process, insofar as the defendant is misusing the court's processes in a manner that is manifestly unfair to the plaintiff;
(ii)Even if considered on its merits, there are no exceptional circumstances as would warrant a stay in any event; and
(iii)That given there has been no delay or improper conduct on the part of the plaintiff in proceeding with her claim, to grant a stay would result in an injustice especially given that the proceedings are significantly advanced and entered for trial.
Having reviewed and considered the materials filed in these proceedings, I am satisfied that the defendant's second stay application is not an abuse of process nor a misuse of the court's processes in a manner that is unfair to the plaintiff. As is apparent from my following reasons, I am satisfied that relevant matters were not disclosed by the plaintiff on the hearing of the first application and that, in the circumstances, it is appropriate to allow the defendant to revisit the question as to whether the plaintiff's claim should be stayed. If the plaintiff has suffered any prejudice from her proceeding with her action and entering it for trial, it arises as a consequence of the plaintiff's failure to disclose relevant matters on the hearing of the defendant's first stay application.
The question as to whether the circumstances are such as to warrant a stay must be considered afresh with regards to the whole of the materials tendered in relation to both the first application and those filed in relation to this application.
General principles
The principles relating to applications for stay of proceedings seeking compensation for historic sexual assault matters were collected and considered in the lead judgment of Bell P in Moubarak by his tutor Coorey v Holt[3] (Moubarak) at [71]:
[3] Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218.
From a trilogy of decisions of the High Court between 1989 and 2006 (Jago; Williams v Spautz (1992) 174 CLR 509; [1992] HCA 34 (Spautz); Walton v Gardiner (1993) 177 CLR 378; [1993] HCA 77 (Walton); Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 (Batistatos)), the following uncontroversial propositions may be derived:
(1)The onus of proving that a permanent stay of proceedings should be granted lies squarely on a defendant: Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ);
(2)A permanent stay should only be ordered in exceptional circumstances: Jago at 31 (per Mason CJ), 76 (per Gaudron J); Spautz at 529 (per Mason CJ, Dawson, Toohey and McHugh JJ); Walton at 388 (per Mason CJ, Deane and Dawson JJ);
(3)A permanent stay should be granted when the interests of the administration of justice so demand: Jago at 30 (per Mason CJ), 74 (Gaudron J); Spautz at 520 (per Mason CJ, Dawson, Toohey and McHugh JJ); Batistatosat [12] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(4)The categories of cases in which a permanent stay may be ordered are not closed: Jago at 74 (per Gaudron J); Batistatos at [9] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(5)One category of case where a permanent stay may be ordered is where the proceedings or their continuance would be vexatious or oppressive: Jago at 74 (per Gaudron J); Walton at 393 (per Mason CJ, Deane and Dawson JJ);
(6)The continuation of proceedings may be oppressive if that is their objective effect: Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(7)Proceedings may be oppressive where their effect is 'seriously and unfairly burdensome, prejudicial or damaging': Oceanic Sun Line Special Shipping Company Ltd v Fay (1988) 165 CLR 197 at 247 (per Deane J); [1988] HCA 32 cited in Jago at 74 (per Gaudron J); Batistatos at [70] (per Gleeson CJ, Gummow, Hayne and Crennan JJ);
(8)Proceedings may be stayed on a permanent basis where their continuation would be manifestly unfair to a party: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ); and
(9)Proceedings may be stayed on a permanent basis where their continuation would bring the administration of justice into disrepute amongst right-thinking people: Walton at 393 (per Mason CJ, Deane and Dawson JJ); Batistatos at [6] (per Gleeson CJ, Gummow, Hayne and Crennan JJ).
Generally, courts have, in the past, been less inclined to grant a stay in civil proceedings compared with criminal proceedings, however as Mason CJ observed in Jago v District Court of New South Wales:[4]
… the distinction to be drawn between criminal and civil proceedings is not a rigid and inflexible one. It is the nature of the proceedings, not their formal classification, that is important.
[4] Jago v District Court of New South Wales (1989) 168 CLR 23, 26, citing Jack Brabham Holdings Pty Ltd v Minister for Industry, Technology and Commerce (1988) 85 ALR 640.
This merging of any distinction between civil and criminal in respect of stay applications was considered by Bell P in Moubarak:[5]
Coherence is a quality that the common law values. An incoherent legal system is one that is apt to undermine respect for the rule of law and bring the administration of justice into disrepute. It would, in my opinion, tend towards incoherence to maintain that what constitutes a fair trial should differ in cases involving identical factual allegations. If the defendant was not fit to face criminal charges in respect of the plaintiff's complaint to police because 'the minimum requirements for a fair trial' (see Rivkin at [97] above) would not be present, it would, in my opinion, offend common-sense simultaneously to maintain that the defendant could secure a fair civil trial in relation to identical factual allegations.
[5] Moubarak [108].
Whilst then being expressed in the context of the question of a defendant's fitness to plead and whether a fair trial was possible, I consider the observation applicable in this case. The plaintiff's claim is for damages for child sexual abuse - founded on a factual basis that is identical to that alleged in the context of criminal proceedings. In my opinion, the question of whether a fair trial is possible falls to be considered in that context and without distinction as to the nature of the proceedings.
The plaintiff brings her previously barred claim following amendments to the Limitation Act 2005 (WA) (the Act). By virtue of the amendments, s 6A of the Act provides that there is no limitation period for a child sexual abuse cause of action. A 'child sexual abuse cause of action' is defined as meaning 'a cause of action that relates, directly or indirectly, to a personal injury of the person to whom the cause of action accrues, where the injury results from the child sexual abuse of the person'.
Section 6A(5) of the Act relevantly provides as follows (together with an attached note):
This section does not limit -
(a)any inherent, implied or statutory jurisdiction of the court: or
(b)any other powers of a court arising or derived from the common law or under any other Act (including any Commonwealth Act), rule of Law, practice noted or practice direction.
Note for this subsection:
For example, this section is not intended to limit a court's power to summarily dismiss or 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.
(emphasis added)
It is apparent that whilst Parliament, by removing the statutory limitation period for child sexual abuse cases, accepted that the lapse of time in itself was not sufficient reason for a claim to be barred, the inherent power of a court to stay any proceeding where the effect of a lapse of time is such that a fair trial is not possible was not fettered.
Whilst recognising the plaintiff's right to institute her claim without regard to the passage of time that has elapsed, the focus must be on the burdensome effect of the delay on the defendant and whether it was such that a fair trial is not possible - such that it would 'inflict unnecessary injustice' upon the defendant: Batistatos.[6]
[6] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 [69]; (2006) 226 CLR 256, 281 (Gleeson CJ, Gummow, Hayne & Crennan JJ) (Batistatos).
In Moubarak Bell P observed that unfairness generated as a consequence of the passage of time between the events giving rise to the claim and the resolution of that claim in the trial process may manifest itself in two ways, first, as unfairness in prolonging the uncertainty in relation to unresolved claims and secondly as unfairness arising as a consequence of the effect of delay on the trial process due to the impoverishment of the evidence available to determine the claim.[7]
[7] Moubarak [74] - [77].
In the present case as the plaintiff's claim may be pursued without regard to any statutory limitation, any unfairness arising from prolonged uncertainty is not relevant. The focus must necessarily be on the unfairness that arises from the effect of delay resulting from the impoverishment of the evidence such as to be so serious that a fair trial is not possible.
As Bell P observed in Moubarak at [77] - [81]:
[77]… This consequence and its significance will inevitably vary from case to case. It is less likely to be a critical factor where the resolution of a case turns predominantly on documentary evidence, particularly in an age of extensive data retention. Delay in such a case is unlikely to have a bearing on the fair and just resolution of such a dispute at trial, however long after the events in question that trial occurs. By way of contrast, the impoverishment of evidence will be more acute where a trial is exclusively or heavily dependent on oral evidence and the quality of witnesses' memory and recollection. The fallibility of human memory and the capacity of the human mind for ex post rationalisation of events long since passed are the subject of the frequently cited observations of McLelland CJ in Eq in Watson v Foxman (1995) 49 NSWLR 315 at 318-319. See also McFee v Reilly [2018] NSWCA 322 at [42] and the discussion of the phenomenon of false memories honestly believed by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm), noted by Davies J in Nominal Defendant v Cordin [2017] NSWCA 6; 79 MVR 210 at [169].
[78]The corrosive effect of the passage of time and its consequences for the quality and integrity of the trial process have also been the subject of typically penetrating insight and analysis by McHugh J, first as a member of this Court in Herron v McGregor (1986) 6 NSWLR 246 at 253-255 and then as a member of the High Court in Longman v R (1989) 168 CLR 79; [1989] HCA 60 (Longman) and Brisbane South RegionalHealth Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 (Taylor).
[79]In Herron v McGregor, McHugh JA (as he then was) said, at 255:
'Because delay creates prejudice and injustice, the policy of the law for over 300 years has been to fix definite time limits for prosecuting civil claims (usually a maximum of six years) and for 150 years to fix definite time limits for prosecuting summary criminal offences. Equity, though not bound by the common law limitations, applied them by analogy. The reasons which have impelled the legislature to fix time limits in civil and many criminal cases are equally applicable to disciplinary proceedings. When a number of years has elapsed since the conduct occurred, the lodging of a complaint prima facie needs justification although, of course, there can be no fixed rule.'
[80]In Longman, at 107-108, McHugh J said:
'The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to 'remember' is well documented. The longer the period between an 'event' and its recall, the greater the margin for error. Interference with a person's ability to 'remember' may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev.ed.(1964), at pp 269-270.
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be. Certainly, some incident or accumulation of incidents seems to have affected the complainant's attitude to her stepfather. She testified that, because of his conduct towards her in sexual matters, 'I don't hate him but I do hate what he's done and the problems it's caused in my life'. However, the existence of this feeling towards the applicant increased, rather than decreased, the need to examine carefully whether the complainant's honest recollection of events concerning the applicant was not distorted by this hatred.
To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.'
[81]The fact that these observations were made in the context of a criminal case where the accused was charged with sexual offences which were allegedly committed more than 20 years before the trial does not, in my opinion, render them any less pertinent to a consideration of the consequences of a lengthy passage of time on the fairness of a civil trial heavily dependent on oral evidence. That this is so is reflected in the similar observations made by McHugh J in Taylor, at 551, which was a civil suit:
'The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. (Footnote omitted)
The critical question on this application is whether the defendant can demonstrate, on the balance of probabilities, that a fair trial is not possible.When considering whether a fair trial is possible however it should be noted that a fair trial is not synonymous with a perfect trial.[8]
[8] Moubarak [89].
In R v Edwards,[9] the High Court, in a joint judgment, observed, at [31], that:
Trials involve the reconstruction of events and it happens on occasions that relevant material is not available; documents, recordings and other things may be lost or destroyed. Witnesses may die. The fact that the tribunal of fact is called upon to determine issues of fact upon less than all of the material which could relevantly bear upon the matter does not make the trial unfair.
[9] R v Edwards [2009] HCA 20; (2009) 255 ALR 399.
A review of the authorities[10] highlights the extent to which the outcome of stay applications is largely fact dependent - each turning on its own peculiar facts. Relevantly the factors considered include the length of the delay, whether the resolution of the case turns predominantly on documentary evidence (including the availability of documents and records) or whether the trial is exclusively or heavily dependent on oral evidence and if so, the mental capacity of the witnesses, the quality of witnesses' memory and recollection, including, 'the fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to "remember" '.[11]
[10] Moubarak, Batistatos, Connellan v Murphy [2017] VSCA 116 (Connellan), Estate of Judd v McKnight [2018] NSWSC 1489 on appeal Gorman v McKnight [2020] NSWCA 20; The Council of Trinity Grammar v Anderson.
[11] Longmanv The Queen [1989] HCA 60; (1989) 168 CLR 79, 107 (McHugh J).
Issues on the pleadings
The plaintiff's pleaded case is that from in or about mid‑1968 (when the plaintiff was then aged between 12 - 13 years) until in or about mid‑1973 the defendant sexually abused the plaintiff by committing various sexual acts upon the plaintiff including fellatio, masturbation and penetration of her vagina on multiple occasions.[12]
[12] Plaintiff's Substituted Statement of Claim, dated 10 May 2019.
The plaintiff pleads that the conduct occurred in breach of a duty of care owed to her not to expose her to the risk of injury as the result of child sexual abuse and further that the defendant's conduct constituted a series of batteries causing injury to the plaintiff. The plaintiff further claims that during the period from 1974 until 1991 the defendant caused the plaintiff to suffer an aggravation of her injuries by his conduct towards her, that included the forceful sexual penetration of her vagina in October 1977 and indecently assaulting her from time‑to‑time by fondling and touching her breasts and genitalia.
By his defence, the defendant disputes the plaintiff's entitlement to bring her action under s 6A of the Limitation Act and otherwise denies the plaintiff's pleaded allegations in any event.[13]
[13] Defendant's Defence, dated 1 April 2019.
Evidence in respect of the delay and loss of documents
In support of the first stay application, the defendant deposed that he was the subject of a criminal investigation in or about 1998 on the complaint of the plaintiff. He exercised his right to silence in relation to the matter by declining to be interviewed by the investigating officers and was released later the same day without charge. The defendant stated that he was later called to an enquiry by the Anti‑Corruption Commission and then the Royal Commission into Police Corruption chaired by retired Supreme Court Justice, G A Kennedy AC QC in relation to alleged improper interference in the investigation of him by senior police officers. The defendant stated that he wished to maintain his right to silence in relation to potential criminal proceedings but to defend the plaintiff's claim he would need to surrender his right to silence.[14]
[14] Affidavit of JD, dated 28 March 2019.
It was the defendant's claim on the first application that he was prejudiced by reason of the inordinate delay through the passage of time. The defendant was unable to identify any specific prejudice save for the passage of time.
Responding to the defendant's first application, the plaintiff's solicitor, Mr Magazanik deposed on 31 May 2019 that the plaintiff made a complaint to the Child Abuse Unit on 7 May 1998 when she was aged 42. At that time the plaintiff had provided to the investigating officers some 29 diaries that had been maintained by the plaintiff during the relevant period that referenced the abuse alleged. Relevant police records obtained by the plaintiff that detailed the history of the investigation by police into the allegations of sexual abuse made by the plaintiff against the defendant and said to be available for use in the proceedings were annexed to Mr Magazanik's affidavit. Those documents included the plaintiff's detailed deposition, statements of several other witnesses and numerous police internal memoranda relevant to the decision by the police not to prefer any charges. The annexed documents included the handwritten notes of Detective Constable Italiano dated 12 August 1998 confirming the existence of the plaintiff's 29 diaries referencing the defendant's abuse of the plaintiff.
The annexed documents included a memorandum from Detective Constable Italiano dated 8 January 1999. It recorded that on 28 October 1998 she was summonsed to Detective Sergeant Miller's office and advised that Superintendent Caporn wished to review the file relating to the investigation of the defendant and instructed that no action was taken until he had completed his review. The entire file was then copied and delivered to Superintendent Caporn for consideration. Superintendent Caporn subsequently directed that the investigation of the defendant cease and that he not be charged. Superintendent Caporn stated that he had reviewed the file including the plaintiff's 29 diaries said to support her allegations against the defendant. He considered the diaries impacted on the plaintiff's credibility insofar as the diary entries did not support what the plaintiff alleged.[15]
[15] Affidavit of Michael Magazanik, affirmed 31 May 2019, par 6a, page 39.
The plaintiff's detailed deposition[16] prepared at the time of her complaint to the police provided the basis for the claim now pleaded against the defendant in her statement of claim.
[16] Affidavit of Michael Magazanik affirmed 31 May 2019, Annexure MJM 10, pages 42 - 109.
Mr Magazanik's affidavit also contained material indicating that since 1988 the plaintiff has sought counselling, psychological treatment and advice from health professionals in relation to the alleged abuse. The plaintiff's solicitor deposed that all of the witnesses in the case including all health professionals, aside from Margaret Nicol, were available and capable of giving evidence.
In general terms, the plaintiff reported that she had been sexually abused by the defendant between the ages of 13 years to 34 years. It was alleged the abuse occurred in various places in the metropolitan area. The defendant was interviewed at the Child Abuse Unit on 17 November 1998. However, shortly after the interview commenced the defendant's solicitor attended and, after discussion with his solicitor, the defendant declined to continue with the interview. The police file was sent to the Office of the Director of Public Prosecutions (ODPP) for an assessment as to whether there was sufficient evidence for the defendant to be charged. In October 1999 a Crown Prosecutor, in a memorandum to the then Director of Public Prosecutions, Mr Robert Cock QC, recommended that there were no reasonable prospects of conviction.[17] A copy of this memorandum was provided by the Crown Prosecutor to the plaintiff. The memorandum explained the reasons for this conclusion. According to the memorandum, for most of the allegations raised by the plaintiff, the law at the time of the alleged offending (which is the applicable law for a criminal prosecution) created serious impediments to the prosecution securing a conviction. The memorandum concluded that for the balance of matters (for which there was no limitation impediment) there would not be a reasonable prospect of conviction of any offence without some acknowledgement of the offending from the defendant.
[17] Memorandum of Crown Prosecutor Evelyn Vickers to Director of Public Prosecutions Robert Cock QC, dated 27 October 1999, annexed as MJM 15 to affidavit of Michael Magazanik, affirmed 31 May 2019.
The plaintiff and the investigating officers from the Child Abuse Unit were dissatisfied with the decision to not charge the defendant and alleged corruption on the part of senior police officers improperly stopping the investigation of the defendant. Thereafter the decision to not prosecute the defendant was investigated by the Anti‑Corruption Commission inquiry and the Kennedy Royal Commission into Police Corruption, in 2002.[18]
[18] Affidavit of Michael Magazanik, affirmed 31 May 2019, page 9.
Following the dismissal of the first stay application the defendant sought the discovery of documents from the plaintiff. In her affidavit affirmed 28 November 2019 the plaintiff disclosed that her original diaries were no longer in her possession, having been destroyed by her on a bonfire in 2005 or 2006.
On 11 May 2020 the defendant's solicitors filed the second application to stay the plaintiff's claim based on the destruction of the diaries.
It was only after the second stay application was filed that the plaintiff's solicitors disclosed that, after a thorough search, the plaintiff had located some of the 29 diaries.
Seemingly 20 of the 29 diaries have been destroyed by the plaintiff and are no longer available. The nine diaries discovered by the plaintiff are described as extracts of pocket diaries for the years 1970, 1971 and 1972; extract of diaries for the years 1973, 1975, 1976, 1982 and 1984 and an extract of diary and an extract of notebook for the year 1974.
Of the nine remaining diaries, four relate to the period during which the child sexual abuse is said to have occurred. In respect of the period where the defendant's conduct pleaded as 'post‑childhood contact' that is said to have forced the plaintiff to suffer an aggravation of her injuries from 1974 to 1979, diaries for the period 1974, 1975, 1976, 1982 and 1984 or extracts of them are seemingly available. Copies of diary entries for 2 August 1971 and 22 April 1972 were annexed to the affidavit of the plaintiff's solicitor, Ms Sara Connor‑Stead, affirmed 5 August 2020. These pages are said to be relevant to the allegations pleaded in pars 5n and 5o of the plaintiff's statement of claim.
Significantly, those diaries for the years in respect of the events pleaded in par 15 of the statement of claim - the sexual penetration of the plaintiff on 8 October 1977 and 29 October 1983 have not been discovered and are seemingly among those that were destroyed by the plaintiff and not available to the defendant to assist in resisting the plaintiff's claim.
Notwithstanding that the availability of the plaintiff's diaries was a live issue on the hearing of the first stay application, neither the plaintiff nor her solicitor disclosed that at least some of them had been destroyed by her. The importance of the diaries and to the extent that they were relevant was a matter raised directly in debate with his Honour the Chief Judge on 10 June 2019.[19]
[19] ts 12, ts 25, ts 26 of 10 June 2019.
Whilst counsel for the plaintiff stated that the diaries were not relied on or pleaded in any part of the pleadings, the extent to which the diaries might be relied on by the defendant to test the plaintiff's credibility as possible inconsistent statements was a live issue at that time.
Given that the plaintiff's solicitor had earlier deposed as to the existence of the diaries, and the reference to the diaries in the affidavit of Ms Shannon Hampton,[20] the failure to disclose the destruction of the diaries (as the plaintiff then believed to be the case) seriously misled the court in respect of an important matter. To have maintained that the plaintiff's claim was supported by entries in the 29 diaries written by her throughout the relevant period, whilst the plaintiff then believed that they had been destroyed was, at best, a reckless disregard for the truthfulness of submissions made on behalf of the plaintiff in the materials filed in opposition to the defendant's first stay application.
[20] Affidavit of Shannon Hampton affirmed 8 May 2019 for Intervener West Australian Newspapers Ltd and Channel 7 Perth Pty Ltd on first stay application ZYX v JD [2019] WADC 164.
Seemingly it was only when the defendant renewed his application for a stay of the plaintiff's claim that the plaintiff undertook any search, located some of the diaries and then verified the true position. Up until that time the plaintiff's expressed state of knowledge was that she had destroyed all of her diaries in 2005 or 2006.[21]
[21] Plaintiff's affidavit affirmed 29 May 2020, page 3.
Significance of diaries
The full extent of the evidentiary and forensic value of the plaintiff's diaries and the impact of their loss in the context of the evidence in this case is difficult to determine on the papers but is undoubtedly significant.
The diaries' importance in the context of the evidence in this case is highlighted by the fact that a detailed account of events and other information was extracted from the diaries by the investigating officers at the Child Abuse Unit, with the assistance of the plaintiff, and put into the plaintiff's deposition.[22] They were the primary source documents for the creation of that document. The plaintiff's deposition (prepared with the aid of the diaries) is the primary source document later used for the preparation of the statement of claim in this action.[23] It cannot be seriously suggested that the diaries have no role to play in the pleading of the plaintiff's claim.
[22] For example pars 128 and 132 of the plaintiff's deposition annexed as MJM 10 to affidavit of Michael Magazanik, affirmed 31 May 2019, pages 67, 69.
[23] ts 15 of 5 August 2020.
On the one hand the plaintiff has said in the past that the details of the defendant's abuse were recorded by her. The investigating officers - particularly Detective Constable Italiano placed great store in the diaries as supporting the plaintiff's credibility. The internal memoranda of the investigating officers record the extent to which each of those involved considered that the plaintiff's detailed diaries supported the plaintiff's credibility.
A contrary view was expressed by Superintendent Caporn when he reviewed the file that had been prepared by Detective Italiano, and subsequently directed that the investigation into the defendant cease and he not be charged. At that time Superintendent Caporn stated that he had reviewed the plaintiff's 29 diaries and considered that they impacted on the plaintiff's credibility insofar as the entries did not support what the plaintiff alleged.
The affidavit of Shannon Lee Hampton filed on behalf of the intervener annexed extracts of various newspaper articles published in around August - September 2002 concerning the plaintiff's allegations against the defendant. Those newspaper articles essentially related to four detectives from the Child Abuse Unit alleging that the plaintiff's complaint against the defendant was covered up by senior police officers. The newspaper articles referenced the plaintiff keeping diaries said to record her years of physical and emotional torment at the hands of the defendant - including her description of the type of entries made by her and what they represented.[24] The accuracy of the words attributed to the plaintiff in those articles was confirmed by counsel for the plaintiff on 5 August 2020 in the hearing of this application.[25]
[24] Affidavit of Shannon Hampton affirmed 8 May 2019 pages 87 - 88.
[25] ts 3 of 5 August 2020.
For example pars 128 and 132 of the plaintiff's deposition,[26] is the plaintiff's account of the defendant's conduct that was said to be marked with an 'exclamation mark' in her diary to refer to specific improper conduct by the defendant - namely inappropriate touching whilst watching TV. That is seemingly the offending conduct that is pleaded in par 5(k) of the statement of claim. It remains to be seen whether the details of the conduct alleged is in fact supported by the extract of the diary that has been discovered when considered in the light of amendments to the pleading and the description of events detailed in the diary.[27]
[26] Affidavit of Michael Magazanik, affirmed 31 May 2019, Annexure MJM 10, pages 67, 69.
[27] Affidavit of Sara Connor-Stead affirmed 5 August 2020, Annexures SCS 1 and SCS 2.
Furthermore, the reference to and reliance on the plaintiff's diaries was the focus of attention when the allegations of improper conduct by senior police officers in stopping the investigation of the defendant were referred to the Royal Commission into Police Corruption in 2002.
The final report by G A Kennedy AC QC, the Commissioner inquiring into whether there had been corrupt criminal conduct by any West Australian police officer, was delivered on 30 January 2004. Chapter 15 of that report details the allegations of corrupt conduct on the part of senior police officers including Superintendent Caporn, in connection with the investigation of the plaintiff's complaint against the defendant by the Child Abuse Unit.
In his report the Commissioner notes that it had previously received a letter dated 22 March 2002 from four police officers who were then attached to the Child Abuse Unit including Detectives Constable Italiano and Connoley. The officers had claimed that experienced officers had been assigned to the inquiry and expressed the opinion that there was sufficient evidence to establish a prima facie case against the defendant. Each claimed that procedural irregularities and actual interference in the inquiry had occurred both before and after the defendant had been interviewed by the interviewing team on 17 November 1998. They each contended that the inquiry had been obstructed and the course of justice defeated by not allowing them to charge the defendant.[28]
[28] Affidavit of JD sworn 11 May 2020, Annexure JD 16.
At page 509 of his report, the Commissioner notes in respect of the diaries:
It appears that diaries have been kept by Q1 [the plaintiff] over a long period. They made many references to Q2 [the defendant] to his visiting Q1's home and her visiting his home but they do not expressly or impliedly refer to any sexual misconduct on his part. Nor do they refer to Q1 or Q2 having had an 'affair'. What is claimed by her is that Q1 made certain marks in her diaries to indicate particular sexual misconduct on the part of Q1 had taken place. For example, an exclamation mark in her diary was said by Q1 to indicate that a particular type of offence was committed.[29] Only Q1 would have been able to decipher the suggested code. Furthermore, a number of the entries in the diary refer favourably to Q2.[30]
[29] Paragraph 128 of the plaintiff's deposition.
[30] Affidavit of JD sworn 11 May 2020, Annexure JD16.
The Commissioner concluded that the conduct of Superintendent Caporn was appropriate, and that the decision to not prosecute the defendant was in accordance with advice received from the ODPP insofar as there was insufficient evidence to charge the defendant.
In his evidence before the Royal Commission, Superintendent Caporn stated that before requiring the investigation to be terminated he had read each diary and correlated the deposition given by the plaintiff with every corresponding entry in the diary. He stated that:[31]
… The diaries supported very strongly that there was a relationship and respective friendship between the families and Q1 and Q2 but the significant issues were one; they didn't particularise any of the offences. There was no particularisation in any of the diaries that I found.
Secondly was that in some of the cases there were some entries that were actually contrary. I've heard the word damned or damning. I wouldn't use that word damning but they were contrary in respect. One example I remember was a confrontational situation and basically it was said it was good to see Q2 and blah blah blah. It was contrary to the deposition. So first and foremost it wasn't particularised and secondly there were some entries that were contrary to what the complainant was saying and again I have an understanding of behavioural dynamics of these sorts of issues and I am not suggesting it is any more than those behavioural dynamics, I'm not saying any more about the veracity of what Q1 says.
[emphasis added]
[31] Affidavit of JD sworn 19 June 2020, Annexure JD(i), pages 8 - 9.
On any assessment, the diaries are undoubtedly important and have a role to play in the determination of the claim between the plaintiff and the defendant. The existence or non-existence of entries in the diaries has the capacity to significantly impact upon the credibility of the plaintiff.
Further, to the extent that the plaintiff alleges an aggravation of her injuries by subsequent conduct of the defendant, and that she further suffered injury including mental distress, the ability to test those matters by reference to diarised entries in her diary have to a large extent now been lost.
In August 2002, prior to the Royal Commission investigating the plaintiff's allegation of interference in the prosecution of the defendant, the plaintiff stated that the diaries were a significant source of information and catalogued the abuse of her by the defendant. If however, as noted by Superintendent Caporn and the Commissioner, they are at times favourable to the defendant in circumstances where the now‑disclosed position is to the contrary, the diary entries would undoubtedly have the capacity to impact upon the plaintiff's credibility. It would tend to rebut allegations of prolonged abuse and conduct that is said to be repugnant to the plaintiff.
Further, insofar as the plaintiff's claim includes a claim for psychiatric harm, the contents of the diaries may have provided valuable insight into the plaintiff's state of mind from day to day, particularly where the plaintiff asserts that she made daily entries in relation to the alleged abuse and her mental state. Regrettably with the loss of the documents or at least part of them with what might be described as an edited destruction, that matter cannot be fully tested at trial.
I pause to note that the plaintiff says that the diaries were destroyed by her on a bonfire in 2005 or 2006. This was seemingly after the Royal Commission to which she had referred the conduct of Superintendent Caporn and other senior officers for alleged corruption by interfering in the prosecution of the defendant, had delivered its findings. Obviously the fact that the plaintiff elected to destroy only some of the diaries is a matter upon which the plaintiff could undoubtedly be tested at trial. In particular perhaps why in 2005 the plaintiff elected to destroy some diaries and not others - particularly when the plaintiff would have been aware that the Royal Commission, and those police officers exonerated by the Royal Commission, considered that there were some entries that were helpful to the defendant and did not support the plaintiff.
The timing of the destruction of only some of the diaries is a matter that may invite an inference that diaries with the comments considered to be contrary to the plaintiff's allegations had been deliberately destroyed whilst others were retained.
I am satisfied on the probabilities that the loss of the diaries in the context of this case is significant. This is particularly so where the earliest pleaded incident is said to have occurred in mid to late 1968, some 52 years ago, and the most recent offending in March 1991, some 30 years ago. The diaries are likely to have been important when cross‑examining the plaintiff in respect of any inconsistencies in her evidence and to properly test her evidence.
Further, they may have also served to refresh the defendant's memory in respect of events or to otherwise stimulate his recall of the events that are now alleged by the plaintiff.
The critical question on this application however is whether the destruction of the diaries or the loss of some of the diaries has put the defendant at an incurable disadvantage in the conduct of his defence at the trial. It is a factor that has to be considered in the context of all the other matters including the very significant passage of time that has elapsed between the alleged incidents and the commencement of proceedings. Arguably the diaries may have led to a line of inquiry that might undermine the plaintiff's case and undoubtedly be a fertile area for cross-examination to challenge the plaintiff's recollection and reliability of her evidence.
Whilst the diaries are undoubtedly important documents, the question for me is whether loss of those documents coupled with the period of delay is such as to be so burdensome on the defendant that a fair trial is not possible. That is to say, is the destruction of some of the diaries is so egregious as to warrant the plaintiff's claim being permanently stayed.
Counsel for the defendant submitted that without the ability to test the evidence of the plaintiff by looking at the material referred to by Superintendent Caporn, the defence is hampered and the trial process unfair. Citing the passage of Bryson JA as approved by the High Court in Batistatos, counsel for the defendant submitted that the defendant would be denied access to material or the line of enquiry that would otherwise have been available to test the plaintiff's case - apart from scraps of information.[32]
[32] Defendant's supplementary submissions, 16 July 2020, par 15.
The defendant submits that the plaintiff made a decision to destroy the only pieces of evidence capable of objectively undermining or assessing the objective accuracy of her testimony, and providing the defendant with the capacity to reasonably respond to the allegations made.[33] To the extent that the plaintiff has said in the past that she made a number of remarks in the diaries, it is unable to be checked. The plaintiff's destruction of the diaries undermines the capacity of the defendant to challenge the complainant's credibility.
[33] Defendant's written submission filed 12 June 2020, par 95.
Whilst I readily recognise and accept that the loss of the diaries may pose a significant impediment to the presentation of the defendant's defence to the plaintiff's claim, I have some hesitation in concluding that the prejudice is of such moment as to compel a conclusion that a fair trial is not possible.
The loss of any documentary evidence and the forensic disadvantage suffered by the defendant must be considered in the context of the whole of the case generally - including the extent to which the whole of the remaining evidence has been impoverished by the passage of time. The defendant says that it is an incurable defect.
The delay in this matter has been considerable. The alleged child sexual abuse underpinning the plaintiff's claim is said to have commenced in 1968 and continued until 1973. In May 1998 the plaintiff made a complaint to police - some 25 - 30 years later. The plaintiff's action was not commenced until March 2019, more than 50 years after the first incident is alleged to have occurred.
I acknowledge that the delay that has occurred in this matter is not unusual for persons who have suffered sexual abuse. It is relevant that Parliament by removing the statutory limitation period for child sexual abuse cases no longer accepts that delay in itself is sufficient reason for a claim to be barred. The removal of the time limit for child sexual abuse claims recognises the unique inhibitors that exist for people who are the victims of child sexual abuse from coming forward with a complaint.
The defendant was however entitled to assume during the period from 2004, upon the delivery of the final report of the Kennedy Royal Commission dismissing the plaintiff's complaint of corruption, that the allegations raised by the plaintiff were over and give no further thought to the matter. The effect of the removal of the time limitation is that such assumption is no longer valid. That said however, it is a matter of common experience that, having put something out of one's mind for the last 15 years and then be required to recall the specifics of events that allegedly occurred some 50 years earlier would undoubtedly tax the ability of any person to do so accurately.
Further, it cannot be said that any disadvantage that any inherent problems of memory loss or loss of evidence exist equally for both the plaintiff and the defendant. As is now apparent the plaintiff has held a strong desire to pursue the defendant for his alleged wrongdoing and retained such documents as she considered relevant for that purpose. Similarly, those detectives who have long held a desire to prosecute the defendant retained copies of all of the police materials in the hopeful expectation that an opportunity may arise to do so in the future. Those officers actively assist the plaintiff in her claim against the defendant.[34]
[34] Affidavit of JD sworn 28 July 2020, Annexure 7.
Whilst there is no evidence that the defendant suffers from dementia or any health problem that gives rise to any mental disadvantage to him - save for the passage of time and the impact of time on one's memory generally such as to make the trial process unfair - I consider that the combined impact of the lengthy period of delay, the loss of records and documents such as the plaintiff's diaries is such that the continuation of the proceedings creates an unfairness to the defendant - the unfairness arising from 'the impoverishment of the evidence'. The question however is whether it can be said to be so serious that a fair trial is no longer possible.
The granting of a permanent stay is an exceptional outcome and needs to be considered in the context of the competing interest of the plaintiff's entitlement to have her claim heard in the ordinary course of the court's business. As observed by Bathurst CJ in The Council of Trinity Grammar School v Anderson:[35]
The grant of a permanent stay having the effect of depriving a litigant of the right to prosecute his or her case in a court is an exceptional remedy. As was pointed out by Dixon J in Cox v Journeaux at 720, in a passage relied upon by the respondent, that '[t]he principle, in general paramount, that a claim honestly made by a suitor for judicial relief must be investigated and decided in the manner appointed, must be observed'.
[35] The Council of Trinity Grammar School v Anderson [2019] 101 NSWLR 762 [422]; see also Connellan v Murphy [2017] VSCA 116 [54].
The onus lies on the defendant to present material to the court to demonstrate that the case is exceptional to invoke an order for a stay of the proceedings.
Whilst the defendant has identified the loss of relevant documents, the extent to which he has thereby suffered a forensic disadvantage must be carefully considered. It may be assumed that much of the material that has been lost or destroyed by the plaintiff may have opened lines of enquiry and areas for cross-examination of the plaintiff and attacking her credibility. Indeed, it remains open to the defendant to invite the drawing of an inference that the timing of the plaintiff's destruction of selected diaries is a factor to consider when assessing the plaintiff's credibility. The diaries were burned after the rejection of the plaintiff's complaint to the Royal Commission where the observations as to the impact of their contents by Superintendent Caporn in the decision to not charge the defendant was accepted.
I am satisfied upon consideration of the whole of the evidence that the impact of the delay, coupled with the disadvantage arising from the loss of documents, is serious and burdensome to the defendant. I am further satisfied that the continuation of the plaintiff's proceedings creates an unfairness to the defendant such that there is a risk that a fair trial may not be possible.
Whilst I am satisfied at this time there is a risk that a fair trial may not be possible, the question is whether a fair trial will not be possible. Can it be said that the continuation of the proceedings at this time in such circumstances may be manifestly unfair even though I am not satisfied on the balance of probabilities that a fair trial will not be possible?
As the High Court observed in R v Edwards:[36]
The fact that the tribunal of fact is called upon to determine issues of fact upon less that all of the material which could relevantly bear upon the matter does not make the trial unfair
[36] R v Edwards [31].
It is a matter of common experience that historic sexual abuse cases are successfully tried every day in this court - in many instances when the alleged offences were committed several decades earlier. As observed by His Honour the Chief Judge in ZXY v JD,[37] trials are constantly held in circumstances in which for a variety of reasons (including delay) not all relevant evidence is before the court. Whilst the passage of time has impoverished the evidence by, for example, the death of witnesses, the loss or destruction of documents (such as diaries), the demolition of buildings and having to rely on historic building plans obtained from Local Authorities or aged family photos for building layouts etc, such trials are completed in a manner that is fair to the parties.
[37] ZXY v JD [51].
Generally any unfairness to a defendant caused by delay and the significant forensic disadvantage resulting therefrom is ameliorated by judicial intervention and direction to ensure that the proceedings are fair to a defendant.
In the context of this case, it is important to bear in mind that the trial of the plaintiff's claim will be conducted in circumstances where, having regard to the significant delay, the trial judge hearing this matter will be required to give him or herself a full Longman[38] direction when assessing truth, accuracy and reliability of the evidence of the plaintiff, fully respecting the warnings in relation to the significant forensic disadvantage suffered by the defendant as a consequence of the delay and the extent to which documents that were seemingly relevant to the plaintiff's allegations have been lost or destroyed by her such that the defendant was deprived of them at trial.
[38] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
Further, given the very serious nature of the plaintiff's allegations - serious criminal conduct - and that a court should not lightly make such a finding, whilst the standard of proof is on the balance of probabilities, the strength of the evidence required must be such to prove the alleged conduct 'clearly', 'unequivocally', 'strictly' or 'with certainty'.[39]
[39] Briginshaw v Briginshaw (1938) 60 CLR 361, 363; Helton v Allen (1940) 63 CLR 691, 701; Hocking v Bell (1945) 71 CLR 430, 500; Rejfek v McElroy (1965) 112 CLR 517, 521; Wentworth v Rogers (No 5) (1986) NSWLR 534, 539; Jonesco v Beard [1930] AC 298, 300.
On balance, having regard to the state of the evidence, I am not satisfied to the required standard at this time that a fair trial is not possible such that the plaintiff's claim should be permanently stayed. In the circumstances, whilst the loss of the diaries is significant, I am not persuaded that it will deny the defendant the opportunity to a fair trial.
Accordingly I not satisfied that the plaintiff's claim should be permanently stayed on the basis of the delay and destruction of relevant documents at this time.
Loss of right to silence
On the first stay application the defendant applied to have the plaintiff's claim permanently stayed insofar as the proceedings were oppressive. The defendant maintained that the plaintiff's claim prejudiced his right to silence in the face of the strong possibility that he would be charged with criminal offences arising out of the conduct alleged in the plaintiff's action. The case advanced by the defendant at that time was that a stay ought to be granted as a criminal prosecution was 'on the cards'.
The plaintiff's position was, in essence, that her claim was a civil action for damages in respect of harm caused to her by the defendant and to the extent that the facts alleged disclosed possible concurrent criminal conduct by the defendant, there was no police involvement for some 20 years and no criminal proceedings currently being considered.
The materials before his Honour the Chief Judge at that time included the memoranda of the investigating officers and the ODPP as annexed to the affidavit of the solicitor for the plaintiff[40] and the material contained in the affidavit of Ms Hampton on behalf of the Intervener affirmed 8 May 2019.[41] The Hampton material related to the reporting of the allegations that senior police officers had interfered in the investigation of the defendant by the police Child Abuse Unit. As noted above, those allegations were later referred to Commissioner O'Connor QC at the Anti-Corruption Commission and to the Kennedy Royal Commission into Police Corruption for investigation in 2002.
[40] Affidavit of Michael Magazanik affirmed 31 May 2019.
[41] Affidavit of Shannon Hampton affirmed 8 May 2019 for Intervener on first stay application [ZYX v JD [2019] WADC 164.]
After considering and reviewing the materials his Honour the Chief Judge was not satisfied that the prosecution of the defendant in respect of the same subject matter as the civil proceedings was likely. His Honour further noted that by his defence, the defendant denied the allegations and it was unclear how the giving of evidence at the trial would place him in jeopardy of resurrecting consideration of criminal charges against him.[42] His Honour concluded that, on the state of the evidence before him at that time, the investigation of the police against the defendant ceased some 20 years earlier - in about 1999 - after the police had referred the matter to the ODPP and a decision was taken based on the law at the time and on the available evidence. There was no evidence that the investigation had been revisited nor was there any related investigation. His Honour considered that although there was a possibility that the defendant could be charged, such possibility was sufficiently remote as to be 'not on the cards'.[43]
[42] ZYX v JD [33] - [34].
[43] ZYX v JD [34].
His Honour further found that whilst the plaintiff's claim arose out of alleged child sexual abuse that may be equally considered to constitute criminal conduct, the fundamental nature of the proceedings remained a claim for compensatory damages in the civil jurisdiction of the court.[44]
[44] ZYX v JD [43].
As noted above, following the dismissal of the defendant's stay application, the defendant pressed the plaintiff to provide discovery of documents. The documents ultimately disclosed by the plaintiff included correspondence that had passed between the plaintiff and the ODPP and the plaintiff and the Attorney General during the period immediately prior to the commencement of her claim against the defendant.
The copies of documents discovered by the plaintiff (albeit in some instances heavily redacted) and produced on the hearing of the defendant's application[45] permit the following findings:
[45] Affidavit of JD sworn 28 July 2020 and documents annexed thereto.
(i)In May 2018 the plaintiff wrote to the Attorney General's office in relation to her complaints against the defendant and the matter was referred to the ODPP.[46]
[46] Affidavit of JD sworn 28 July 2020, Annexure 1.
(ii)That during the period from no later than 3 July 2018 to mid‑August 2018 the plaintiff communicated with the ODPP in relation to the possible prosecution of the defendant.[47]
[47] Affidavit of JD sworn 28 July 2020, Annexures 2 - 6.
(iii)By letter dated 3 July 2018,[48] the Director of the ODPP informed the plaintiff that she had reviewed the reports prepared by Ms Evelyn Vicker, senior Crown prosecutor in charge of the plaintiff's case and the former Director, regarding the evidence and the reasons for the decision not to prosecute the defendant.
[48] Affidavit of Sara Connor-Stead affirmed 31 July 2020, Annexure SCS 1.
Whilst acknowledging her appreciation of the plaintiff's concern and 'sense of injustice', the Director of the ODPP informed the plaintiff that she was unable to offer the plaintiff any other resolution of the matter. In the penultimate paragraph of her letter, the Director stated:
You may wish to consider the fact that, as 1 July 2018, the Civil Liability Legislation Amendment (Child Sexual Abuse) Actions Act 2018 commenced. I am unable to offer any legal advice in this regard, but strongly suggest you seek independent legal advice as to whether civil proceedings may provide you with a possibility of some justice in the future.
(emphasis added)
(iv)That as at 3 July 2018 based on an understanding of the state of the law at that time the ODPP was not prepared to revisit the decision to prosecute the defendant.
(v)At that time, despite extensive efforts and enquiries with the WA Police, the ODPP had been unable to locate a copy of the plaintiff's statement in order to consider the plaintiff's evidence.[49]
[49] Affidavit of Sara Connor-Stead affirmed 31 July 2020, Annexure SCS 1, page 2.
(vi)Notwithstanding the advice of the Director of the ODPP of 3 July 2018, on 16 August 2018 the plaintiff and members of her 'support team' met with the Director in relation to the possible prosecution of the defendant.
(vii)On 20 August 2018 the plaintiff wrote to the Director of ODPP acknowledging her appreciation and relevantly stated:[50]
[50] Affidavit of JD sworn 28 July 2020, Annexure 7, page 26.
I have spoken to:
Jo Connoley -
Cris Italiano -
They are eager to be contacted by you and would be available at any time.
Fortunately, they have both kept copies of everything pertaining to the investigation, awaiting this time and trusting that I would again pursue this matter
(emphasis added)
(viii)Ms Cris Italiano and Ms Jo Connoley are two of the four former detectives at the Child Abuse Unit who dealt with the plaintiff's complainant against the defendant and recommended that he be prosecuted. Further they each complained to the Anti‑Corruption Commission and to the Kennedy Royal Commission that senior officers had improperly interfered with the investigation and prosecution of the defendant.
(ix)The investigating officers from the Child Abuse Unit remained eager to be contacted by the ODPP in August 2018 reinforcing the view that the criminal prosecution of the defendant was then still in contemplation, at least by the plaintiff and could not be dismissed.
(x)Further, that former detectives had retained documents from the Child Abuse Unit (whilst no longer members of WA Police) and support the plaintiff's action against the defendant colours their motives. It further highlights a seeming inconsistency in relation to the provenance of police documents held by the plaintiff as previously attested in the course of the proceedings.[51]
[51] Affidavit of Michael Magazanik affirmed 9 June 2019, par 3.
(xi)On 21 August 2018 the plaintiff wrote to the Honourable John Quigley Attorney General for Western Australia requesting consideration of the removal of any time limitation impediments to a prosecution under s189 of the Criminal Code and, with it, any bar to the prosecution of the defendant in respect of his alleged sexual abuse of the plaintiff.[52]
[52] Affidavit of Sara Connor-Stead affirmed 31 July 2020, Annexure SCS 2.
Relevantly the plaintiff wrote:
… after the Royal Commissions into institutional child sex abuse, the Limitation Act 2005 was amended to remove the limitation periods for all child sexual abuse actions, both retrospectively and prospectively. When I first read about the changes, I had some hope that they applied to criminal matters. However I understand that this is not the case and the amendments only apply to civil actions.
It is anomalous and wrong that the three month time limit in section 189 of the Criminal Code still protects perpetrators, silences victims and thwarts justice.
As the Royal Commission into Institutional Child Sexual Abuse found (and has been known for many years) it is unreasonable to expect that a 13 year old child would within three months have told her parents or carers, or notified the police of sexual abuse. It is even more unreasonable to expect that the police would have completed investigations, and that a prosecution would have been commenced within that timeframe.
I therefore respectfully request that the government consider legislation to remove with retrospective effect, the three month time limit in section 189 of the Criminal Code.
I understand that there is a rule that prohibits retrospective criminalisation of conduct that is not criminal at the time. However this situation is different. (The defendant's) conduct was criminal at the time and would be criminal now.
In summary I believe that removing the three month limit on section 189 of the Criminal Code would be consistent with the Royal Commission into Institutional Child Sexual Abuse and the changes to the Limitation Act 2005. And I do not see how it would subvert the retrospectivity principle.
The plaintiff concluded as follows:
I am currently seeking legal advice about the possibility of taking civil action following the amendments to the Limitation Act 2005. However, redress for victims should not be limited to civil action and the time limit on section 189 of the Criminal Code (and any other sections) should be removed. First many victims will not have the financial resources or the confidence in the legal system that brings such an action. Secondly, time limits that are palpably unjust and unreasonable should not deny justice to me or other victims.
(emphasis added)
(xii)On 13 November 2018 the Honourable John Quigley MLA Attorney General replied to the plaintiff's request in the following terms:[53]
Thank you for your letter dated 21 August 2018, regarding retrospective action for criminal penalties for child sexual offences with reference to the repeal of section 189 of the Criminal Code (WA). In particular you requested the repeal of any retrospective application of a now defunct requirement that a prosecution for an offence of unlawfully and indecently dealing with a girl between 13 and 16 years of age be commenced within three months after the offence was committed ('the three month rule').
A number of improvements are being considered by the Department of Justice ('the Department') to contemporise legislation pertaining to sexual offences and provide greater protections for children and persons affected by sexual assault. At present the Department is considering in detail each recommendation arising from the Royal Commission into institutionalised child sexual abuse, including those regarding legislation with retrospective limitation periods. Further, the Department has commenced development of a new Evidence Act for Western Australia that will address many other hindrances to prosecutions of sexual and domestic assault including matters to which you refer in your letter.
I understand that you previously met with Ms Amanda Forester SC Director of the Public Prosecutions. Whilst it would not be appropriate for me to discuss the legal standing of your case I would like to affirm that the Labor government is committed to extensive law and order reforms to ensure that this state maintains a robust justice system. I trust this information is of assistance.
(emphasis added)
(xiii)It is apparent from the Attorney General's expressed intention that legislative reform to permit the prosecution of previously time barred offences under s 189 of the Criminal Code cannot be dismissed without proper consideration.
[53] Affidavit of Sara Connor-Stead affirmed 31 July 2020, Annexure SCS 3.
Given the thrust of the defendant's application for a stay of the plaintiff's claim and the likely impact of such proceedings on the defendant's right to silence, the plaintiff and her solicitor's failure to disclose the matters detailed in par 95 above was a serious omission that had the capacity to lead the court into error. The communications and the documents were clearly relevant and had not been discovered by the plaintiff. That such information had to be extracted from the plaintiff in the face of objection and obfuscation is troubling. The meetings and communications were clearly relevant to the possible prosecution of the defendant in relation to the sexual abuse alleged by the plaintiff.
Given that the abovementioned communications occurred within approximately four months of the first stay application and was not disclosed at the hearing necessarily gives rise to serious concern as to the true motive in the pursuit of the plaintiff's claim and whether the court's processes are being abused by the plaintiff. Significantly this correspondence was not discovered by the plaintiff in her affidavit of discovery and indeed was only disclosed on the hearing of this application. Somewhat surprisingly none of the details of these communications were disclosed by the plaintiff or her legal representatives to his Honour the Chief Judge on the hearing of the first stay application notwithstanding their relevance to the matter for determination by His Honour the Chief Judge. As observed by the Full Court in Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda[54]:
… counsel's duty to not mislead the court carries a positive and correlative responsibility to take all necessary steps to ensure that there is a proper factual basis for submissions put to the court.
[54] Huntingdale Village Pty Ltd (Receivers and Managers Appointed) v Korda [2015] WASCA 101[39]
The above communications should have been disclosed to his Honour the Chief Judge on the hearing of the first stay application. It was directly relevant to the matter then under consideration, namely whether a prosecution was 'on the cards'. Whilst I would be slow to impute any misconduct on the part of counsel, the material put before the court by the instructing solicitor and the plaintiff's representatives was significantly deficient and seriously misleading. I find it difficult to accept that the plaintiff could have had such dialogue with the ODPP and Attorney General without her legal representatives being aware of such discussions.
As a consequent of the non-disclosure the court was led into error into believing that there had been no communication or consideration of proceeding against the defendant for some 20 years.
As is apparent from the letter from the Attorney General, as at 18 November 2018 - four and a half months prior to the hearing of the defendant's motion to stay the plaintiff's claim - serious consideration was being given to the prosecution of the defendant and the possible amendment of s 189 of the Criminal Code that may allow that to occur.
In the light of the non‑disclosure it is appropriate to revisit the question as to whether the plaintiff's action should be permanently stayed or stayed pending further order.
The defendant seeks to permanently stay the plaintiff's claim or stay it until further order of the court to protect his right to silence. If the defendant's right to silence is imperilled by the plaintiff's claim, the defendant is entitled to a stay of the plaintiff's action until any prosecution has been concluded.
As noted above, in 1998 the defendant was the subject of a criminal investigation in respect of the same matters the subject of the plaintiff's claim. On that occasion the defendant exercised his right to silence and he was released without charge. He says that he wishes to maintain his right to silence in relation to potential criminal proceedings but to defend the claim of the plaintiff he will need to surrender his right to silence.
In Reid v Howard [No 2],[55] Toohey, Gaudron, McHugh and Gummow JJ dealt with the privilege against self-incrimination:
The privilege, which has been described as 'a fundamental bulwark of liberty' is not simply a rule of evidence but a basic and substantive common law right. It was developed after the abolition of the Star Chamber by the Long Parliament in 1691 and by 1737, it was said that 'there (was) no rule more established in equity'. More recently, the privilege has been described as 'deeply ingrained in the common law'. It operates so that a person cannot be compelled 'to answer any question or to produce any document or thing, if to do so 'may tend to bring him into the peril or possibility of being convicted as a criminal'.
[55] Reid v Howard (1995) 184 CLR 1,11.
The importance and scope of a person's right to silence was emphasised in the High Court decision in Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions,[56] Kiefel CJ, Bell and Nettle JJ observing:
The common law right to silence is a fundament of the criminal justice system that applies all stages of the process to a persons suspected of an offence, whether charged or not yet charged and also at trial.
(emphasis added)
[56] Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] 216 CLR 325 [101].
The relevant legal principles to be applied in considering an application for stay where there is potential for criminal and civil proceedings to intersect are not in dispute and are essentially as stated by Wooten J in McMahon v Gould:[57]
[57] McMahon v Gould (1982) 7 ACLR 202, 206.
(a)Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the Court (Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16);
(b)It is a grave matter to interfere with this entitlement by a stay of proceedings which requires justification on proper grounds (supra);
(c)The burden is on the defendant in a similar action to show that it is just and convenient that the plaintiff's ordinary right should be interfered with (Jefferson v Bhetcha ([1979] 1 WLR 898, 905; 1113);
(d)Neither an accused (supra) nor the Crown (Rochfort v John Fairfax & Sons Ltd (at 21)) are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;
(e)The Court's task is one of 'the balancing of justice between the parties' (Jefferson Ltd v Bhetcha (at 904; 1113), taking account of all relevant factors (supra, at 905; 1113);
(f)Each case must be judged on its merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors (supra, at 905; 1113);
(g)One factor to take into account where there are pending or possible criminal proceedings is what are sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceedings (supra) at 904, 1113). I return to this subject below.
(h)However, the so‑called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in the civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding (supra, at 904-905; 1113);
(i)The Court should consider whether there is a real, and not merely notional, danger of injustice in the criminal proceedings (supra, at 904; 1113);
(j)In this regard factors which may be relevant include:
(i)the possibility of publicity that might reach and influence jurors in the civil proceedings (supra, at 905; 1113);
(ii)the proximity of the criminal hearing (supra, at 905; 1113);
(iii)the possibility of miscarriage of justice, eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses (supra, at 905; 1113);
(iv)the burden of the defendant of preparing for both sets of proceedings concurrently (BeeCee Group Ltd v Barton (1980) 4 ACLR 733 at 736);
(v)whether the defendant has already disclosed his defence to the allegations (Caeser v Sommer[1980] 2 NSWLR 929, 932; Re Saltergate Insurance Co Ltd and the Companies Act(1980) 4 ACLR 733, 736);
(vi)the conduct of the defendant, including his own prior invocation of civil process when it suited him (cf Re Saltergate Insurance Co Ltd (at 735-737));
(k)The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;
(l)In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg setting down for trial, and then stayed (BeeCee Group v Barton).
As observed by Allanson J in Andrew Koh Nominees Pty Ltd as trustee for KL Unit Trust v Pacific Corporation Ltd[No 3][58](Koh Nominees) that while, prima facie, the plaintiff has an entitlement to have its action tried in the ordinary course of the court's business, the court's task on this application is 'the balancing of justice between the parties', taking account of all relevant factors. Each case must be judged on its own merits.[59]
[58] Andrew Koh Nominees Pty Ltd as trustee for KL Unit Trust v Pacific Corporation Ltd[No 3] [2010] WASC 248.
[59] At [55]. See also Phoenix Eagle Company Pty Ltd v Ardrey [No 2] [2016] WASC 417 (K J Martin J).
Generally there is a disinclination of the court to interrupt the ordinary progression of a civil action to trial. The critical factor is generally the relevant proximity of the criminal hearing and the possibility of a miscarriage of justice by disclosure of a defence. Other matters such as the burden upon a defendant of preparing for two sets of proceedings concurrently; and, most importantly, the preservation of his right to silence must be considered.
Given long held desire for the prosecution of the defendant by the plaintiff and the direct contact with the Attorney General one could not readily accept that there is no prospect that the defendant may be prosecuted at some future time.
Fundamental to any stay application is the obligation on the defendant seeking the relief to demonstrate a real risk of injustice in a criminal proceedings or that a failure to stay at this junction in the civil proceedings will impose an unjust burden on the defendant.
Significantly the right to silence does not extend to give a defendant as a matter of right the same protection in contemporaneous civil proceedings as otherwise exists in criminal proceedings. The plaintiff in a civil action is not restrained from pursuing an action in accordance with normal rules merely because to do so would or might result in the defendant, if he wished to defend the action, being required to disclose in a pleading or by way of discovery what his defence is likely to be in a criminal proceedings.
Importantly the court is required to consider whether there is a real or not just merely a notional danger of injustice in any criminal proceedings.
As observed by McKerracher J In Citation Resources Ltd v Landau,[60] a defendant may successfully invoke the privilege against potential self‑incrimination if there was a real or appreciable risk that a pleading or the giving of discovery might expose the defendant to increase jeopardy of criminal prosecution. In determining whether a stay order should be made the question is whether there is sufficient evidence that a prosecution is 'on the cards'. The expression 'on the cards' was accepted as meaning 'reasonably possible' or a reasonable possibility.[61]
[60] Citation Resources Ltd v Landau (2016) 116 ACSR 410 [28].
[61] Citation Resources Ltd v Landau [49].
To be 'on the cards' however it is not necessary for a decision to have been made to recommend a prosecution or that a decision has already been made to send a brief to the relevant prosecution authorities for a prosecution. As noted in Australian Securities and Investments Commission v Craigside Company Ltd,[62] a prosecution may be 'on the cards' even when a current investigation was not then in place.
[62] Australian Securities and Investments Commission v Craigside Company Ltd [2013] 93 ACSR 176 [21].
The critical issue in this case is whether, on the state of the evidence before me, the likelihood of criminal proceedings against the defendant is 'on the cards' such that the plaintiff's civil proceedings ought to be stayed.
In the present case the materials referred to above raise several issues for consideration:
1.The prospect of the Criminal Code being amended with retrospective effect to permit the prosecution of offenders who have committed sexual offences against children - such amendment being in the manner detailed by the plaintiff in her correspondence to the Attorney General.
2.Whether the defendant would face prosecution arising out of offences allegedly committed against the plaintiff;
3.Whether the defendant would face prosecution arising out of offences allegedly committed against TT.
4.Whether prosecution of the defendant in respect of those acts allegedly committed by him against the plaintiff as pleaded in pars 5 and 15 (offences that are not statute barred) would be revisited by the prosecution in the face of other evidence including possible propensity evidence from the witness TT.
The communications between the plaintiff and the ODPP and Attorney General highlight that the prosecution of the defendant remains foremost in the plaintiff's mind.
The advice of the ODPP on 3 July 2018 simply confirmed the earlier view as to the prospects of a successful prosecution and is such that it is unlikely that the defendant will be the subject of any prosecution in respect of the matters investigated in 1998.
Whilst the Attorney General has not unequivocally indicated that an amendment of the Evidence Act 1906 (WA) and the Criminal Code is on his legislative agenda, the Attorney General has equally not foreclosed that option. Given the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse and legislative reforms thereafter, the removal of time limits for the prosecution of serious sex offences committed against children and exposing wrongdoers to the full force of the law is neither remote nor fanciful.
Given the plaintiff's enthusiasm for the prosecution of the defendant and the plaintiff's direct communication with the Attorney General, one could not confidently assert that the prospect of the defendant being charged at some time in the future is wholly improbable. However on the materials before me it cannot be said at this time that it is matter that is likely to be progressed in the immediate future.
Further, the question as to whether or not a prosecution is 'on the cards' also needs to be considered in the light of all of the available material and in particular with regard to the additional materials sought to be adduced at trial by the plaintiff, namely the evidence of TT as propensity evidence.
Proposed propensity evidence of TT
On the hearing of the defendant's second stay application, counsel for the plaintiff disclosed that the plaintiff intended to seek leave at trial to adduce propensity evidence from the witness anonymised as 'TT' alleging sexual conduct by the defendant against TT when she was a young child in 1988, 1994 and 1995. A draft minute of proposed amendments to the statement of claim was filed detailing the facts to be alleged.[63]
[63] Minute of Proposed Amended Statement of Claim, dated 13 August 2020.
In her affidavit affirmed 20 July 2020 TT describes three occasions when, as a child, the defendant allegedly engaged in inappropriate sexual conduct with her. The first incident is said to have occurred in 1988 when TT was an 8‑year‑old. The defendant requested TT to touch his penis whilst in the shower with her. The second incident occurred on 1 April 1994 when TT was then 14 years old. She was staying at the defendant's home when the defendant came into the bedroom when she was lying on a bed. The defendant offered to massage her back. Whilst massaging TT, the defendant removed her clothing and rubbed her breasts and then moved his hands down her body towards her vagina. The defendant ceased his conduct when another adult came to the door and the room. The third incident occurred in 1995 when TT was then 15 years old and required money for a new dress. She telephoned the defendant and he agreed to meet her. The defendant gave TT money and said 'if you let me finish what I started last year (the 1994 incident) you won't have to pay the money back'.
In 2003 TT contacted the WA Police 'Child Abuse Unit' and arranged to speak with them on a confidential basis. TT attended the Unit and spoke to the officer-in-charge however elected not to make a formal complaint as she was worried about the impact of making a complaint upon her family and other close family relationships. Notwithstanding that TT describes the defendant's conduct as a 'terrible thorn in (my) side' and expresses her hate for its impact on her, she has not pursued the matter since 2003 with any formal legal steps, until swearing her affidavit on 20 July 2020 in support of the plaintiff's claim.
The matters alleged by TT disclose criminal conduct that would expose the defendant to possible criminal prosecution if TT revisits her decision to make a complaint. The 1988 incident if proved is an offence, namely indecent treatment of a child under the age of 14 contrary to s 183 of the Criminal Code. The 1994 incident evidences an offence contrary to s 321(4) of the Criminal Code - indecently dealing with a child. The 1995 incident - the conditional offer of money – is an offence contrary to s 552 and s 321(3) of the Criminal Code - attempting to procure, incite or encourage a person to engage in sexual behaviour.
Whether the evidence is adduced at the trial of the plaintiff's claim is moot. The evidence of TT will not be admissible unless an inference may be drawn from it that a fact in issue existed. To be admissible it must be logically probative of a matter which is in issue. In this case it is seemingly directed to the propensity of the defendant to commit the acts constituting the child sexual abuse alleged by the plaintiff.
Whether the evidence of TT in respect of alleged sexual abuse of her by the defendant some 18 - 20 years after the incidents alleged against the defendant by the plaintiff is admissible in the trial of the plaintiff's claim will be a matter for the trial judge. For the purposes of this application I have assumed the evidence of the plaintiff to be taken at its highest so far as any prejudice to the defendant is to be considered and have assumed that the evidence of TT may be adduced by the plaintiff at the trial of her claim.
At this time, there is no current complaint to the police in relation to the alleged conduct by the defendant. Further there is no evidence to suggest that TT seeks to pursue any claim beyond giving evidence to support the plaintiff in her civil claim. In the circumstances I am not satisfied that the prosecution of the defendant in respect to of his alleged conduct towards TT is on the cards at this time. I am not prepared to stay the plaintiff's claim on that basis.
I am mindful that the plaintiff has prima facie an entitlement to have her action heard in the ordinary course of the court's business. Whilst there is a risk associated with the defendant being exposed to the plaintiff's claim, and with that , the evidence of TT, it is important to recognise that at this stage he has not been compelled to take any step in the proceedings that would otherwise imperil his right to silence. The defendant is not currently the subject of any inquiry or examination by way of interrogatories nor constrained in the pleading of his defence (as he has done) by way of a general denial. Indeed it is difficult to see how that could in any way impact upon the defendant's right to silence in any significant way.
In my view, refusal to stay the plaintiff's claim at this stage would not impose any unjust burden on the defendant. As observed by Justice Allanson in Koh the court needs to know more about when and if the criminal proceedings are likely to take place, what is required to be done to prepare for them, and how long they are likely to take and importantly the extent to which the defendant is any way prejudiced in his defence of the plaintiff's claim or his right to silence impaired.[64]
[64] Koh Nominees [75].
Notwithstanding the possible complaints by the plaintiff and TT and their cumulative impact on the defendant I am not satisfied that the defendant has made out a case in favour of staying the plaintiff's claim at this time. In the circumstances, whilst I am satisfied that there is a possibility of a criminal prosecution at some time in the future, I am not satisfied that a prosecution of the defendant in respect of the conduct the subject of the plaintiff's claim or the conduct described by TT (if adduced at trial) is 'on the cards' at this time. Further, I am not satisfied that the circumstances are such that the continuation of the plaintiff's claim is so burdensome on the defendant as to be unfair.
Obviously should circumstances change and the investigation of the defendant is revisited by the police or ODPP, it is open for the defendant to renew his application. At this time however in the exercise of my discretion I am not prepared to stay the plaintiff's claim on this basis.
Abuse of process – Whether plaintiff's claim is private prosecution?
The defendant contends that the plaintiff's action is an abuse of process because it is in substance, if not in form, a private prosecution by the plaintiff using the processes of the civil court to prosecute a criminal case against the defendant. The defendant says that it is brought for the improper purpose of reducing the standard of proof to the balance of probabilities and to remove the defendant's privilege of a right to silence.
If the plaintiff's claim against the defendant is being pursued for such improper purpose it would be an abuse of process and an order for a stay should be made: Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd.[65]
[65] Patrick Jebb as trustee for the Trafalgar West Investments Trust v Superior Lawns Australia Pty Ltd [2019] WASC 121 [105] (Vaughan J).
When considering the question whether there is an abuse of process, it is relevant to consider the nature of the proceedings. Courts generally take a different approach to the granting of a stay for abuse of process in civil cases, as opposed to criminal cases and are generally less inclined to grant a stay: Jack Brabham Holdings v Minister for Industry, Technology and Commerce Button)[66] (Jack Brabham Holdings).
[66] Jack Brabham Holdings v Minister for Industry, Technology and Commerce (Button) (1988) 85 ALR 640, 641 (Kirby P).
The reason for the different approach was explained by Gleeson CJ, Gummow, Hayne and Crennan JJ in Batistatos as follows:[67]
In Williams v Spautz, Mason CJ, Dawson, Toohey and McHugh JJ identified two fundamental policy considerations affecting abuse of process in criminal proceedings. Their Honours said:
The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by The State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice.
These considerations are not present with the same force in civil litigation where the moving party is not the State enforcing the criminal law. Earlier, in Jago v District Court (NSW), Mason CJ had observed:
[T]he criteria for determining what amounts to injustice in a civil case will necessarily differ from those appropriate to answering the question in a criminal context.
(footnotes omitted)
[67] Batistatos (264) - (265).
As observed above,[68] a permanent stay should only be granted in exceptional circumstances and the onus of proving that a stay should be granted lies squarely on the defendant. Further, in my opinion, given the serious nature of the allegation that the plaintiff's claim is vexatious and that the impact of the granting of a stay being to deny the plaintiff's right to relief, a stay should not be granted in the absence of clear proof. Mere suspicion is not enough.
[68] [11] of these reasons.
Upon a review of the materials filed on this stay application those matters that tend to support the characterisation of the plaintiff' claim as a private prosecution of the defendant include:
(i)The plaintiff's seeming refusal to accept the advice of the ODPP in 1998 as justifying the police investigation of the defendant in relation to her complaint be stopped and the defendant released without charge.
(ii)The plaintiff's complaint to the Anti-Corruption Commission in 2000 and Kennedy Royal Commission into Police Corruption in 2002 alleging that senior officers corruptly interfered in the investigation of her complaint against the defendant in 1998.
(iii)The plaintiff's decision to publicly disclose at a media conference in August 2002 details of her allegations against the defendant -seemingly to name and shame the defendant and damage his reputation and standing in the community; notwithstanding the advice of the ODPP that they would not proceed with a prosecution of the defendant.[69]
[69] Affidavit of Shannon Hampton affirmed 8 May 2019 for Intervener on first stay application [ZYX v JD [2019] WADC 164]
(iv)That in May 2018 the plaintiff wrote to the Attorney General's office in relation to her complaint against the defendant and the matter was referred to the ODPP.[70]
[70] Affidavit of JD sworn 28 July 2020, Annexure 1.
(v)That during the period from at least 3 July 2018 to mid-August 2018 the plaintiff communicated with the ODPP in relation to the possible prosecution of the defendant.[71]
[71] Affidavit of JD sworn 28 July 2020, Annexures 2 - 6.
(v)On 3 July 2018,[72] the Director of the ODPP informed the plaintiff that having reviewed the reports regarding the evidence and the reasons for the decision not to prosecute the defendant and that the ODPP would not revisit that matter. That the reasons given by the ODPP included the state of the law at that time of the alleged offending (time limitations for offences under s 189 of the Criminal Code), evidentiary difficulty in established an absence of consent and, further, disproving beyond reasonable doubt possible criminal defences including mistaken belief as to consent in relation to those sexual assaults that are now pleaded in pars 15(b) and 15(i) of the plaintiff's statement of claim as forceful sexual penetrations.
[72] Affidavit of Sara Connor-Stead affirmed 31 July 2020, Annexure SCS 1.
(vii)The Director of the ODPP 'strongly suggested' the plaintiff seek independent legal advice as to whether civil proceedings may provide her with a possibility of some justice in the future.[73]
[73] Affidavit of Sara Connor-Stead affirmed 31 July 2020, Annexure SCS 1, page 3.
(viii)On 16 August 2018 the plaintiff and members of her 'support team' met with the Director in relation to the possible prosecution of the defendant, notwithstanding the earlier advice of the Director of ODPP that prosecution of the defendant was not possible.
(ix)That those assisting the plaintiff with her claim against the defendant include Ms Cris Italiano and Ms Connoley, the former detectives at police Child Abuse Unit who investigated the plaintiff's allegations against the defendant and recommended that he be prosecuted. Like the plaintiff, they each complained to the Anti-Corruption Commission and the Royal Commission into Police Corruption about the conduct of senior officers interfering in their investigation of the defendant and being ordered to cease all further investigation of the defendant.
(x)That the complaints of the former detectives were rejected by the Anti-Corruption Commission and the Royal Commission and, in some instances, each was the subject of critical comment.[74]
[74] For example; Affidavit of JD sworn 11 May 2020, Annexure JD 17: in respect of Connoley - page 514 Section 15.10 of Royal Commission report; in respect of Italiano – pages 522-524 Section 15.14 of Royal Commission report.
(xi)As at 18 August 2018, notwithstanding that they were no longer members of WA Police former detectives Italiano and Connoley were eager to assist the ODPP in any prosecution of the defendant and had retained documents from the Child Abuse Unit pertaining to the investigation, awaiting the time and trusting that (the plaintiff) would again pursue this matter.[75]
[75] Affidavit of JD sworn 28 July 2020, Annexure 7, page 26.
(xii)On 21 August 2018 the plaintiff wrote to the Honourable John Quigley Attorney General for Western Australia requesting his consideration of the removal of any time limitation impediments to a prosecution under s 189 of the Criminal Code and, with it, any bar to the prosecution of the defendant in respect of his alleged sexual abuse of the plaintiff.[76]
(xiii)On 21 August 2018 the plaintiff's openly expressed to the Attorney General her hope that the limitation reforms applied to criminal matters at a time when the plaintiff's was aware that the amendment to the Limitation Act enabled her to commence civil proceedings if she so desired at that time.
(xiv)The plaintiff requested that Attorney General consider legislation to remove, with retrospective effect, the three month time limit in s 189 of the Criminal Code to enable the defendant to be prosecuted.
(xv)Whilst then considering the possibility of taking civil action following the amendments to the Limitation Act, the plaintiff stated to the Attorney General in support of her submission for legislative reform that redress for victims of child sexual abuse should not be limited to civil action and that the time limit on s 189 of the Criminal Code (and any other sections) be removed insofar as 'time limits that are palpably unjust and unreasonable should not deny justice to me or other victims.' (emphasis added)
(xvi)The failure of the plaintiff and her solicitors to disclose on the hearing of the first stay application:
(a)The destruction of documents previously considered by other to adversely impact upon prospects of the successful prosecution of the defendant; and
(b)The plaintiff's communications and dealings with the ODPP and the Attorney General in the period immediately prior to the commencement of her proceedings against the defendant in March 2019.
(xvii)The plaintiff failing to disclose on oath in her affidavit of discovery[77] the plaintiff's communications and dealings with the ODPP and the Attorney General in the period immediately prior to the commencement of her proceedings against the defendant.
[76] Affidavit of Sara Connor-Stead, affirmed 31 July 2020, Annexure SCS 2.
[77] Affidavit of ZYX affirmed 28 November 2019.
I am satisfied that the conduct of the plaintiff and her representatives in the period immediately prior to and during the conduct of the plaintiff's case clearly enlivens careful consideration as to plaintiff's motives in proceeding with her claim against the defendant in this action.
At first blush the above matters are cause for grave concern as to whether the plaintiff's claim is in fact a private prosecution of the defendant in respect of criminal charges that cannot be otherwise successfully prosecuted rather that a legitimate effort to obtain compensation for past wrongs committed by the defendant. As noted at par 138 (xv) above, the plaintiff seemingly equated the inability to prosecute the defendant as a denial of justice, notwithstanding that the plaintiff then had an extant right to commence proceedings against the defendant for compensation for the harm suffered by his conduct. That is to say, that anything less than the prosecution of the defendant was an injustice to the plaintiff.
The close involvement of the former investigating officers and in particular Detectives Italiano and Connoley in the prosecution of the plaintiff's action further enlivens consideration as to whether the plaintiff's action is in the nature of a criminal proceeding and essentially a private prosecution. To say that it is unusual for former police officers to copy police documents including witness statements and thereafter retain them after ceasing to serve as police officers understates the matter. Further, it beggars belief that they did so in the hopeful expectation that the plaintiff a former complainant happens to, coincidentally, comes forward many years later as the plaintiff in a civil action and seeks to pursue the same allegations that they had been prevented from pursuing in the criminal prosecution of the defendant.
I am mindful that the above matters need to be considered in context - particularly with regard to the passage of time since the alleged conduct was first committed.
There can be little doubt that Detectives Italiano and Connoley still harbour some concern that their complaints about the interference in their investigation of the defendant by senior officers were rejected by the Anti‑Corruption Commission and the Kennedy Royal Commission and the findings made.
On the materials before me, it may be open to infer that former Detectives Italiano and Connoley may regard the successful pursuit of a civil claim against the defendant as vindicating their pursuit of the investigation of the defendant in 1998, and further impliedly rebuke those senior officers who considered otherwise.
Each had seemingly put their careers in jeopardy when they referred the involvement by their superiors in their investigation of the defendant to the Anti-Corruption Commission and Royal Commission alleging corrupt conduct. Each kept a copy of all of the documents relating to the investigation (save for the diaries that were returned to the plaintiff) and have seemingly provided them to the plaintiff. I am not prepared to accept that the plaintiff was provided with copies of internal police memoranda in the course of her reporting the matter in 1998 and during the subsequent Anti‑Corruption Commission and Royal Commissions hears as deposed by the plaintiff's solicitor.[78] Further, that such documents were retained by her is inconsistent with the plaintiff's 'bonfire' destruction of other documents no longer considered relevant in 2005 or 2006. In my opinion the plaintiff's letter to the ODPP of 20 August 2018 provides a more plausible indication as to the provenance of such documents.[79]
[78] Affidavit of Michael Magazanik affirmed 9 June 2019, par 4.
[79] Affidavit of JD sworn 28 July 2020, Annexure 7, page 26.
Mindful of the extent that each former detective examined all avenues to ensure the matter was satisfactorily dealt with and the likely motive each may have to assist the plaintiff in her claim against the defendant, I am not persuaded that the plaintiff's civil action is simply a rebadging of the criminal prosecution by the fact that the plaintiff is aided by the former detectives.
I consider that the possible motives of a third party seeking to assist the plaintiff to obtain some satisfaction and possible closure of an event in her early years irrelevant to the question as to whether the plaintiff should be stayed from seeking to pursue the defendant for alleged hurt suffered whilst a child. Whilst the circumstances in which the former detectives have a role to play in the plaintiff's case give rise to a grave suspicion - suspicion is not proof to the required standard.
The defendant carries the onus to prove that the dominant purpose of the plaintiff's action is to use the civil processes of the court to achieve in essence, by a civil judgment the conviction of the defendant in respect of the alleged abusive sexual conduct.
In my opinion, the conduct of the former detectives is no different to the assistance that is now offered to the plaintiff by TT in coming forward and offering to testify about a personal matter to assist in bolstering the plaintiff's claim.
No doubt the plaintiff is appreciative of the fact that the investigating detectives kept copies of documents pertaining to the investigation awaiting the time and trusting that the plaintiff would pursue the matter. That does not however convert the plaintiff's claim for damages into a criminal prosecution.
Further, in my view the plaintiff's submissions to the Attorney General must be seen in context. If the plaintiff genuinely considered that the prosecution of the defendant could be achieved by legislative reform, there would be little merit in proceeding with a civil claim with the attendant cost and stress associated with litigation.
Whilst the conduct of the plaintiff and or her solicitors in failing to disclose the plaintiff's dealing with the ODPP and Attorney General on the first stay application is a serious departure from the standards of disclosure expected by the court, I am not prepared at this time to attribute such failing to the plaintiff so as to imperil her claim in the absence of clear evidence.
I am not satisfied on the material before me that the claim presently pursued by the plaintiff can be categorised other than as a civil claim for damages in respect of the damages suffered by her.
I am fortified in that view by the fact that the plaintiff first disclosed the offending conduct of the defendant many years prior to first making any complaint to the police. Indeed, as early as January 1991 the plaintiff had sought psychological assistance and counselling in respect of sexual and emotional abuse and then disclosed the defendant's conduct - many years prior to reporting the matter to the police. That the plaintiff seemingly suffered some injury at that time is in no doubt notwithstanding that the causation of such injury remains a live issue.
I am satisfied that these proceedings are to be viewed as civil in nature. The action is a private civil action by an individual with the predominant purpose of seeking a civil remedy in damages. As observed by his Honour Chief Judge Sleight on the first stay application,[80] it is no different in substance to the many civil actions which are conducted in this court in relation to damages arising from a motor vehicle accident, where the defendant may also be guilty of criminal offences under the Road Traffic Act 1974 (WA) or the Criminal Code.
[80] ZYX v JD [43].
Accordingly, I reject the defendant's application for a stay of proceedings based upon the contention that the proceedings are being improperly used to prosecute a criminal offence.
Conclusion
Whilst I am not satisfied that any of the grounds for a stay have been established when considered separately, in my opinion the proper application of the test must necessarily involve a consideration of all the factors and the combined effect of each of the matters raised by the defendant and their impact upon the defendant's right to a fair trial. Can it be said that the circumstances, when each of the matters are considered either separately or in combination, are such that the continuation of the plaintiff's claim has such a burdensome effect on the defendant that is so serious that a fair trial is not possible?
Whilst accepting that in this case it is a finely balanced decision and others may reasonably come to a different conclusion, having regard to all of the circumstances enlivened by this application, I am satisfied that any unfairness to the defendant can be ameliorated by judicial intervention and direction to ensure that the proceedings are conducted in a manner that is fair to a defendant.
As noted above, it is important to bear in mind that the trial of the plaintiff's claim will be conducted in circumstances where the trial judge will be required to give him or herself a full Longman[81] direction when assessing truth, accuracy and reliability of the evidence of the plaintiff, fully respecting the warnings in relation to the significant forensic disadvantage suffered by the defendant as a consequence of the delay and the extent to which documents that were seemingly relevant to the plaintiff's allegations have been lost or destroyed by her such that the defendant was deprived of them at trial. The trial judge will also have regard to the extent to which the plaintiff has generally avoided such forensic disadvantage with the assistance of former police officers providing her with assistance that would not otherwise be generally available to a litigant.
[81] Longman v The Queen [1989] HCA 60; (1989) 168 CLR 79.
Furthermore, notwithstanding that the standard of proof is on the balance of probabilities, the strength of the evidence required must be such to prove the alleged conduct 'clearly', 'unequivocally', 'strictly' or 'with certainty'.[82]
[82] Briginshaw v Briginshaw (1938) 60 CLR 361, 363; Helton v Allan (1940) 63 CLR 691, 701; Hocking v Bell (1945) 71 CLR 430, 500; Rejfek v McElroy (1965) 112 CLR 517, 521; Wentworth v Rogers (No 5) (1986) NSWLR 534, 539; Jonesco v Beard [1930] AC 298, 300.
On balance, having regard to the state of the evidence as it presently stands, I am not satisfied to the required standard at this time that a fair trial is not possible such that the plaintiff's claim should be permanently stayed. In the circumstances, the application to stay the plaintiff's claim is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AZ
Associate to the Judge
18 MARCH 2021
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