Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 24 August 2019.
In 1979, Lisa was ten years old when she fell victim to sexual abuse perpetrated by her uncle. Unbeknownst to anyone, Lisa endured the abuse for over five years before relocating to another state with her family.
Unfortunately, Lisa’s trauma was so severe that she underwent years of counselling. It was not until 2016 that she confided in a friend about her past trauma and found the courage to report her uncle to police, who eventually charged him with several counts of child sexual abuse.
Lisa’s uncle died in May 2016 before the criminal charges could be heard. Prior to his death, the police had obtained audio recordings of him recounting some of the offences.
In 2017, Lisa commenced civil proceedings in the Supreme Court of NSW against her late uncle’s Estate for compensation. The Estate applied to the Court to have the proceedings dismissed on the grounds that almost four decades of delay in commencing proceedings was unfairly prejudicial considering the alleged perpetrator had died and could not give evidence.
The Court held that the mere absence of a witness through death or incapacity did not automatically make a trial unfair and justify the dismissal of a case. The Court needed to be satisfied that, among other things, the death of the witness made it impossible, not just difficult, to defend the claim.
Given that various medical practitioners were available to corroborate Lisa’s story and the pre-recorded accounts of the perpetrator were still in existence, the Court found that hearing the proceedings would not be unfairly prejudicial on the Estate just because the perpetrator was not alive to give evidence. Accordingly, the Estate’s application was dismissed and a hearing scheduled. If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
