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Historical Sexual Abuse and the Law in NSW

*Trigger warning: This case note contains some references to subject matter and material that may be traumatising or upsetting for survivors of sexual assault and rape, as well as their families. Reader discretion is advised.

Decision

The District Court dismissed the defendant’s application for a permanent stay of proceedings and ordered the defendant to pay the plaintiff’s costs of and incidental to the application.

Background

This matter concerns Ms Burrows’ (the plaintiff’s) claim that she was repeatedly sexually assaulted by
Mr Patsantzopoulos (the defendant) between 1990 and 1992, when she was between the ages of 6 and 8.

The defendant was first confronted with the allegations in 2007, and the plaintiff gave a statement to NSW Police in October 2013.

Relevantly, the defendant subsequently suffered a stroke on or around 30 April 2014.

The defendant was arrested on charges of sexual and indecent assault on a person under the age of 10 years, under sections 61E(1) and 61M(2) of the Crimes Act 1900 (NSW) (*provisions since repealed).

The defendant’s case (brought by a tutor on his behalf due to his alleged medical incapacity) was that the plaintiff’s compensation claim be permanently stayed on the grounds that, due to his prevailing medical condition and age (87) the court proceedings “…would produce manifest unfairness to him, and would bring the administration of justice into disrepute. He contended that it would not be possible for him to obtain a fair trial.”

The Court rejected those submissions.

Judicial Consideration

In considering whether or not to grant a stay of proceedings, his Honour Weber SC DCJ stated the relevant principles are as follows [25]:

  • Whether the plaintiff confronted the defendant with the allegations and whether there is a record of the defendant’s response;
  • Whether the defendant had medical or cognitive conditions before or at the time that proceedings were commenced;
  • Whether a complaint was made to the police and whether a police statement was obtained;
  • Whether there is reliable evidence of any persons who could give direct evidence of the allegations;
  • Whether the defendant is able to give instructions as to the allegations for the purposes of the defence and during the course of any trial;
  • Whether the defendant is able to give evidence in the proceedings;
  • Whether there is any documentary evidence which might be able to be used with respect to the likelihood or otherwise of the alleged events having taken place.

In considering whether or not to grant a stay of proceedings, his Honour Weber SC DCJ stated as follows at paragraphs [57] and [63]:

  1. In my view, and substantially for the reasons articulated by the plaintiff as set out above, I do not consider that the defendant has discharged the heavy onus of establishing the basis for a permanent stay…

[…]

  1. I acknowledge that the defendant’s cognitive state, being what it is, will necessarily result in the hearing of these proceedings being imperfect. In that regard, however, it is important to bear in mind that there will seldom, if ever, be a perfect trial or hearing, and that the law does not require one to be achieved. What is requires to be achieved is a fair trial. As Bell P stated in Moubarak“a fair trial is not synonymous with a perfect trial” (at [89]).

Impact

This is a reassuring decision for survivors of child sexual abuse, noting the authority that a trial does not need to be “perfect” to be “fair”.

Survivors should be forewarned and forearmed in relation to proactively confronting their assailants. Early steps to protect a survivor’s interest can make all the difference in the pursuit of fair compensation.

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