Connellan v Murphy  VSCA 116
In 2015, one of the biggest litigation hurdles faced by survivors of child abuse in Victoria was removed by the passage of the Limitations of Actions Amendment (Child Abuse) Act 2015 (Vic) (the Act), which amended the Limitation of Actions Act 1958 (Vic). The Act removed previously restrictive limitation periods that applied to actions relating to death or personal injury resulting from child abuse. The amendments acknowledged the significant difficulties survivors face in pursuing claims for childhood abuse, as highlighted by both the 2013 findings of the Victorian Government's Inquiry into the Handling of Child Abuse by Religious and Other Organisations and the current federal Royal Commission into Institutional Responses to Child Sexual Abuse. However, by virtue of the introduction of s27R of the Act, a court's power to summarily dismiss or permanently stay proceedings was expressly preserved.
On 22 May 2017, the Supreme Court of Victoria's Court of Appeal invoked s27R to permanently stay proceedings relating to the alleged sexual assault of a minor in 1968 for the first time. The decision in Connellan v Murphy  VSCA 116 is one that is cause for concern for survivors of abuse.
In 2016, the plaintiff, Marita Murphy, brought a claim against John Connellan, alleging that he raped her when they were both minors while she stayed with his family for a period of about seven to ten days following the death of her father. The plaintiff also alleged that she was molested by Eugene, an Aboriginal boy who was also staying with the family, but did not issue proceedings against him. The plaintiff provided details of where the alleged rapes occurred within the family home but was unable to clarify the circumstances under which she came to stay with the family. There does not appear to have been evidence that the arrangement was institutional in nature, for example, the placement does not appear to have been arranged by the Department of Health and Human Services.
The defendant denied the allegations and further denied having ever met the plaintiff as a child. The defendant's brother, who was alleged to have witnessed the sexual assault of the plaintiff, also denied knowing the plaintiff or that the assaults occurred. The plaintiff's sister gave evidence that she was aware of the plaintiff being placed with the defendant's family.
A police investigation of the plaintiff's allegations identified Eugene Samuel Lovett as possibly being the Eugene referred to by the plaintiff. The police investigation also noted that other witnesses were now deceased.
The defendant made an application to permanently stay proceedings on the grounds that allowing proceedings was an abuse of process and that the delay had left him irretrievably prejudiced. In making the application, the defendant referred to well-known authorities including Batistatos v Roads and Traffic Authority of News South Wales HCA 27; (2006) 226 CLR 256, and questioned the reliability of the plaintiff as a witness, pointing specifically to inconsistencies in the plaintiff's evidence.
The defendant also claimed erosion of evidence due to the significant lapse of time since the alleged events, including an inability to call and cross-examine potential witnesses, in particular his parents and the plaintiff's parents, who may have been able to give evidence about the care arrangement, and documentation relating to the plaintiff's placement with the Connellan family, which was no longer accessible.
At first instance, the primary judge refused the permanent stay application, noting that although the defendant had suffered general prejudice, the Act's passage was specifically intended to recognise the difficulties faced by survivors of abuse in bringing claims at an earlier time, and to provide them with greater access to justice. The primary judge rejected the defendant's submission that it was sufficient reason to stay proceedings that the conduct of proceedings by a defendant was rendered more complicated and difficult by the lapse of time. In reaching her conclusion, the primary judge noted that all persons alleged to have been present at the time of the alleged assault were still alive and their evidence could be tested by both sides. Importantly, she noted that any perceived inconsistencies in the plaintiff's evidence could also be tested by her viva voce evidence.
On 22 May 2017, the Court of Appeal held that the primary judge's approach was too narrow, allowed the defendant's appeal, and set aside the primary judge's ruling, ordering a permanent stay of proceedings. Given that the defendant was 13 years old at the time of the alleged offence, almost 50 years ago, it held that the 'burdensome and oppressive' task expected of the defendant in defending himself was rendered more oppressive as neither side was in a position to make proper investigations of relevant surrounding circumstances and by the 'vagueness of the plaintiff's own recollection'. The Court of Appeal found that:
'…A trial of the plaintiff's allegations would be one that proceeded on a very unsure footing with mere scraps of evidence, the reliability of which must seriously be doubted, being tendered and relied upon…'
The Court of Appeal also considered the effect that the lapse of time would have on those giving evidence, including the defendant and his brother. Further, it acknowledged the lack of clarity as to whether Eugene had been properly identified and that those who were adults at the time of the alleged abuse and therefore may have been able to provide more clarity were not alive to give such evidence. In addition, it was held that the plaintiff appeared to have mistaken the defendant's identity, confusing the two Connellan brothers in respect of one of the alleged assaults. The Court also noted that the defendant's childhood home, in which the plaintiff alleged the abuse took place, had been demolished and therefore the plaintiff's evidence could not be properly tested.
Further issues involving causation and quantum were also held to have been rendered more difficult by the passage of time, including the plaintiff's assertion that she had and continued to suffer a chronic post traumatic stress disorder as a result of the alleged abuse. The Court of Appeal stated that the investigation of how and when the condition commenced and developed and its potential causes were now largely, if not wholly, precluded and that the history as provided by the plaintiff could only be her subjective recollection of events.
As the Royal Commission has found, it is not uncommon for plaintiffs to issue proceedings decades after the fact for various legitimate and understandable reasons. The facts and circumstances ofConnellanv Murphyare not particularly unusual in this respect. There is clearly a need for s27R to be invoked at times, and proceedings dismissed or stayed in cases where the delay in issuing proceedings is so serious and burdensome on defendants as to prevent the possibility of a fair trial. However, it would be concerning if the same restrictive approach adopted by the Court of Appeal was followed in future cases and used as a method of circumventing the abolition of the limitation periods and the very injustice it was introduced to prevent.
In reaching its decision, the Court of Appeal noted the 'exceptional circumstances of the specific facts' of the case, including that the alleged abuse was between children, with attendant evidentiary issues. The Court may well have refused a permanent stay application had the alleged abuse been by a defendant identified with greater certainty and/or an adult perpetrator. Although the Court of Appeal canvassed the intrinsic problems in responding to historical allegations of abuse involving children, it would be of significant concern were the decision to lead to an increase in defendants attempting to stay proceedings simply on this basis.
The Court of Appeal may also have reached a different conclusion had there not been as many inconsistencies in the plaintiff's evidence. While human memory is clearly fallible, and memory may deteriorate with the passage of time, it is not clear from the decision that the inconsistencies identified in the plaintiff's allegations were due to the 'substantial lapse of time'. The Court of Appeal placed particular emphasis on the inconsistencies in the plaintiff's evidence.
It is also worth noting the short length of the plaintiff's alleged placement with the defendant's family and the effect this may have had on her recollection of certain matters, as opposed to survivors who allege abuse over a lengthier period of time.
As stated above, it appears that there was no institutional element in the plaintiff's placement with the defendant's family. There may also have been a different conclusion had the abuse occurred in an institutional context where significantly more records are likely to exist and potentially more witnesses available to corroborate the particular abuse and/or its systemic nature, despite the passage of decades. It should also be noted that the erosion of evidence also causes survivors of abuse to face greater difficulties in proving their cases, for example, without the benefit of records or well maintained records corroborating their institutional placements and/or the abuse, but that this could ultimately be a factor considered at trial as defendants are also burdened by the same disadvantage.
The basis on which the recommendation to abolish the statute of limitations for personal injuries resulting from child abuse was made should also be considered. In its final report, Betrayal of Trust, the Family and Community Development Committee (ajoint investigatory committee of the Parliament of Victoria)considered the public policy justifications for limitation periods. In particular, they considered that by virtue of the passage of time, relevant evidence was likely to be lost and the concern that it could be considered oppressive to a defendant to allow an action to be brought long after the circumstances to which it gave rise. However, the Committee ultimately noted the life-long consequences of the abuse to survivors and considered this outweighed the public benefit of giving certainty to defendants by way of a limitation period. Given these considerations and findings by the Committee, the narrow interpretation taken by the Court of Appeal is disappointing.
This is the first case to test s27R and future interpretations will considerably affect survivors' access to justice. Despite noting that the defendant bears a heavy onus to justify the grant of a stay, it is of concern that the Court of Appeal appears to have adopted a narrow interpretation of the section, as opposed to the purposive construction by the court at first instance.
This article was first published on the Australian Lawyers Alliance website at https://www.lawyersalliance.com.au/opinion/connellan-v-murphy-2017-vsca-116