In recent years, we have witnessed a surge in historical sexual assault cases. Often there is legal argument around the delay in commencement of these claims, and whether the delay has affected the Defendant’s right to a fair trial. The Courts have considered many applications from Defendants for a “stay of proceedings”, which is an order or decision made by a Court that can permanently prevent a case from prosecution. A court may order a stay of proceedings in circumstances where the trial would be so unfair or oppressive that it becomes an abuse of process.
One of the key considerations in relation to this issue is the balance between the rights of the accused to a fair trial and the interests of justice for survivors.
The High Court has recently considered the circumstances in which a stay of proceedings may be ordered, in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore. This judgment follows on from a decision made by the NSW Court of Appeal, permanently staying the proceedings, arising from sexual abuse that occurred some 55 years prior.
In this case, the survivor, GLJ, claimed that Father Anderson had sexually abused her in her family home when she was 14 years of age. Father Anderson passed away in 1996 and, prior to his death, there were no notices or complaints put to Father Anderson or the Trustees of the Roman Catholic Church (“the Trustees”) about the abuse.
The Trustees sought a permanent stay on the basis that it was unable to receive a fair trial. Not only was Father Anderson deceased, but also all other relevant members of the clergy were deceased and therefore no-one was able to provide the Trustees with instructions about what had occurred. The NSW Court of Appeal accepted the Trustees argument and allowed the proceedings to be stayed permanently.
GLJ was granted special leave to the High Court, which overturned the decision of the Court of Appeal stating that the fact that Father Anderson (and other members of clergy) were deceased prior to the commencement of the claim does not mean that there could be no fair trial. The Court noted, amongst other things, the following:
- Father Anderson is not a defendant to the proceedings.
- The Trustees were on notice of Father Anderson sexually abusing other survivors, prior to his death.
- There was evidence of Father Anderson’s sexual conduct well prior to the alleged abuse of GLJ.
This decision does not completely preclude a stay of proceedings, in an appropriate case, In previous years, the grant of a stay of proceedings has had severe implications for survivors of historical sexual assault seeking justice. This decision may assist survivors to achieve the justice they deserve.
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
