* Disclaimer: This article contains details about sexual assault/abuse which may be upsetting for some readers. Reader discretion is advised.

The decision in Willmot v State of Queensland [2023] QCA 102 was overturned by the High Court of Australia. 

The appellant commenced a claim for damages against the State of Queensland for multiple alleged instances of abuse while she was a “State Child” under the respondent's care from the 1950s to the 1960s. In particular, the appellant alleged she was abused:

1. From 1957 to 1959 by her foster parents (the Demlins)

2. In or around 1959 by the supervisor of a girl's dormitory (Phillips)

3. In or around 1960 by her uncle (NW)

4. In or around 1967 by her great-uncle or cousin (Uncle Pickering)

The appellant argued that the respondent owed her a non-delegable duty of care due to her status as a "State Child", making the respondent responsible for taking all reasonable care to avoid her suffering injury. The appellant claimed that the respondent breached this duty by failing to prevent the abuse she suffered, resulting in lifelong psychological trauma.

The respondent first applied for a permanent stay of the proceedings in the Supreme Court of Queensland, asserting that the delay of over 50 years made a fair trial impossible. The respondent argued that given the extensive passage of time, critical evidence and testimony were no longer available which complicated its ability to corroborate or refute the appellant's claims.

The case was heard before Her Honour Chief Justice Bowskill of the Supreme Court in July 2022 and a decision was handed down on 22 August 2022. The Supreme Court granted a permanent stay, finding that the trial would be inherently unfair to the respondent. Her Honour noted that the absence of witnesses and evidence would severely restrict the respondent's ability to defend itself, creating a prejudicial disadvantage and making a fair trial unattainable. As a result, the court concluded that allowing the trial to proceed would constitute an abuse of process.

The respondent appealed to the Queensland Court of Appeal, which upheld the stay. The appeal decision of Mullins P, Gotterson AJA and Boddice AJA was handed down on 16 May 2023

The Court of Appeal's decision was delivered prior to the High Court handing down its judgment in GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857.

The appellant brought her case to the High Court with the following grounds of appeal:

1. Ground 1 and 2 - the appellant challenged the reasoning of the Court of Appeal that the fact that the investigation of a particular witness or other evidence that might have been undertaken by the respondent was unlikely to have yielded valuable evidence did not "justify a moderation of the significance of the respondent's inability to investigate foundational facts in the exercise of the discretion" (ground 1) and that the respondent did not need to establish that it would be in a "materially different" position if the perpetrators or the persons they would obtain instructions from were alive (ground 2).

2. Ground 3 - in relation to the Demlin allegations, there was the evidence of RS, another female foster child, who alleged she was sexually abused by Demlin in a similar way to the appellant and witnessed her abuse. The appellant challenges the reasoning of the Court of Appeal that the fact that RS would give evidence as to Mr Demlin's assaults did not "repair the respondent's inability to investigate, or obtain instructions, lead evidence or cross-examine the foundational allegations".

3. Ground 4 - the appellant challenged the Court of Appeal's findings that due to the psychiatric evidence it would be difficult to disentangle the events with absolute precision supported the finding that it would be "insurmountably difficult" to disentangle the NW Allegation from the impacts of the Demlins Allegations and her other life events.

4. Ground 5 - in relation to the NW allegation, the appellant challenged the reasoning of the Court of Appeal that it was not significant that NW is alive

The High Court addressed each of the appellant's allegations separately in reaching its decision. The court found that the lower courts had erred in applying a broad stay to all allegations,  emphasising that each of the appellant's claims involved distinct allegations with different timelines and individuals. The court found that an individualised assessment of each claim was necessary, considering the specific available evidence and the potential impact of missing evidence or records on each allegation.

The appellant alleged that while in foster care with Mr and Mrs Demlin, Mr Demlin regularly sexually abused her on a weekly or bi-weekly basis. She described being touched inappropriately and forced to engage in sexual acts. Another former foster child (RS) was prepared to provide corroborating testimony of similar abuse by Mr Demlin, and allegedly witnessed the appellant's abuse herself. 

Both the Supreme Court and the Court of Appeal upheld a stay on this allegation, reasoning that the inability to cross-examine Mr and Mrs Demlin (now deceased) placed the respondent at a significant disadvantage. The courts emphasised that the extensive delay and lack of documentary evidence, combined with the appellant’s delayed memory recovery, would make it difficult for the respondent to defend itself fairly.

The High Court disagreed with the lower courts’ blanket application of the stay. It reasoned that RS’s testimony could potentially support the appellant’s allegations, and while some forensic disadvantage existed, it did not automatically render a fair trial impossible. While the respondent suggested that the appellant's did not have memory of the abuse until she had a conversation with RS, the court found that the respondent was wrong to suggest that RS' evidence makes the trial unfair or, as the respondent would have it, more unfair.

The High Court noted that ultimately a trial judge was not prevented from making their own assessment as to what findings should be made, and that  the appellant and RS can be cross-examined, and that the trial judge is not bound to accept their evidence.

The High Court lifted the stay on this allegation, allowing it to proceed to trial.

The appellant claimed that she was subjected to frequent physical abuse at the Cherbourg Girls’ Dormitory by the supervisor, Ms Phillips. She described severe beatings and floggings, often conducted in front of other children, as well as humiliating punishments such as being forced to stand on one leg for extended periods.

The lower courts applied a stay to this allegation due to the passage of time, the death of Ms Phillips, and the absence of corroborating documentation. They noted that Ms Phillips’s death prevented the respondent from directly challenging the appellant’s claims and raised questions about the reliability of her memory over such a lengthy period.

The High Court recognised the potential difficulties but again found that a fair trial could be possible if the case was managed with appropriate safeguards. The court reasoned that, given the detailed nature of the allegations and the appellant’s potential ability to support her testimony with the evidence from other former residents, the evidentiary imbalance alone did not justify a complete stay. The High Court found there was evidence that demonstrated the respondent could understand Ms Phillips' alleged practice of corporal punishment and was capable of making an informed response to the allegation. The High Court decided against precluding the claims altogether, and was unconvinced the respondent was disadvantaged on the basis that a positive challenge to the appellant's evidence had not been revealed. 

The High Court lifted the stay on this allegation.

The appellant alleged she was sexually abused by her uncle, referred to as NW, during a family visit when she was six years old. She claimed NW attempted to force himself on her during this visit.

The lower courts stayed this claim, pointing to the extreme passage of time and the absence of additional supporting evidence. They reasoned that the allegation was inherently difficult to verify and that the respondent’s inability to investigate or cross-examine NW due to the time lapse would result in an unfair trial. The sole reason given by the primary judge for granting a stay of the NW allegation was due to causation, being that it would be "insurmountably difficult" to extract this one event from the other allegations referred to in the report from a psychiatrist. 

The High Court took a different approach, highlighting that NW was still alive and could potentially be called to testify. This fact significantly reduced the respondent’s claimed forensic disadvantage, as the respondent would have an opportunity to cross-examine NW if he was available and willing to appear. It rejected the reasoning of the lower court that the allegation could not be extracted "in terms of causation". The High Court held that staying the allegation was unwarranted given the possibility of NW’s involvement at trial.

The High Court lifted the stay on this allegation.

The appellant claimed that, during a visit to her family when she was around thirteen, her great-uncle known as “Uncle Pickering” sexually assaulted her, including digital penetration.

Both the Supreme Court and the Court of Appeal applied a stay to this allegation, noting that “Uncle Pickering” had since passed away. The courts relied upon the facts that the inability to examine or obtain any corroborative evidence from him, combined with the lack of documentation, created a substantial disadvantage for the respondent, making it challenging to ensure a fair trial.

The High Court upheld the stay on this specific allegation. It reasoned that, unlike the appellant's other claims, the evidentiary disadvantages here were too substantial. Without corroboration or testimony from “Uncle Pickering,” and considering the lack of other supporting evidence, the High Court agreed that a fair trial on this allegation was not possible. The High Court noted that, in cases where there was minimal evidence beyond the appellant's recollection and no available witnesses or documentation, a stay might be appropriate to prevent unfairness to the defendant.

The High Court upheld the stay on this allegation, preventing it from proceeding to trial.

1. Presumption against stays in abuse cases with abolished limitation periods
   
   In his minority judgment, Gleeson J acknowledged that legislative changes eliminating limitation periods for child abuse cases reflect a policy intent to facilitate access to justice for survivors. This intent suggests that delays alone should not justify a stay. The court referred to GLJ, emphasising that abuse claims often involve delayed reporting due to trauma, and the absence of a limitation period should be considered when determining fairness in trials for such cases.
    
2. Exceptional circumstances required for stay 
   
   The High Court reiterated that stays should only be granted in exceptional circumstances. The court held that a permanent stay requires proof that the trial would be so unfairly burdensome and prejudicial to the defendant that it constitutes an abuse of process. This aligns with the longstanding principle that a stay is a “last resort” when no other means can ensure fairness.
    
3. Assessment of specific evidentiary disadvantages
   
   The High Court highlighted that courts should assess specific evidentiary disadvantages in each case rather than relying on generalised concerns about delay. In Willmot, the court evaluated whether missing evidence, such as the inability to cross-examine deceased perpetrators, created an irremediable disadvantage for the defendant. The court referenced GLJ in reaffirming that, to justify a stay, the defendant must demonstrate that the loss of evidence would prevent a fair trial, not just complicate it.
    
4. Use of judicial techniques to mitigate prejudice
   
   The court emphasised that judicial techniques, such as cautioning juries about memory limitations and the passage of time, can help address the fairness concerns in historical cases. The court confirmed that trial judges have tools to mitigate evidentiary challenges without necessarily staying proceedings.
    
5. Case-by-case analysis 
   
   The court emphasised that each allegation must be examined on its facts to determine whether fairness can be preserved. This approach means assessing each claim individually based on the availability of evidence, the presence of corroborative testimony, and the nature of the alleged abuse. The court ultimately in Willmot lifted stays on certain allegations while upholding them on others, depending on the specific impact of lost evidence on each claim.

The High Court’s decision in Willmot v State of Queensland carries significant implications for handling historical abuse claims.

The High Court’s judgment reflects a shift toward more nuanced handling of historical abuse cases. Courts are directed to assess each claim individually, weighing both the legislative support for delayed abuse claims and the practical need to maintain fair trial standards for defendants.

The decision establishes clearer guidelines for stays in historical abuse cases, confirming that defendants must demonstrate specific prejudicial effects from delay that would prevent a fair trial. Generalised assertions about fairness concerns arising from delay alone are insufficient to justify a stay.