By: Greg Carruthers-Smith, Gemma Burke and Maria Canon

RC v The Salvation Army (Western Australia) Property Trust [2024] HCA 43

At a glance

• The High Court of Australia has allowed an appeal to set aside a judgment staying civil proceedings relating to alleged sexual abuse occurring in 1959/60.
• The death of the perpetrator and the only witness to a disclosure about the alleged abuse was not enough to meet the heavy evidentiary burden required of the Defendant to establish there was no possibility of a fair trial.
• The High Court’s judgment reaffirms the very high threshold to succeed in a stay application in abuse cases.

On 15 November 2018, the applicant (RC) commenced an action against the respondent (the Salvation Army) in the District Court of Western Australia, alleging that Lieutenant Frank Swift (Lt Swift) had sexually abused him between August 1959 and April 1960, at the ages of 12 and 13 while at the Nedlands Boys’ Home (Home) which was operated by the Salvation Army.

Lt Swift had retired in September 1989 at the age of 65 and died in October 2006. The officer in charge of the Home during the period of the alleged abuse was Major Watson (Watson), who died in August 1968. RC claimed that Watson failed to act on his [contemporaneous] disclosure about the abuse.

The Salvation Army applied for a stay of the proceedings on the basis that it could not have a fair trial. The stay was granted by the primary judge and the WA Court of Appeal dismissed an appeal of the primary judgment. RC appealed to the High Court.

Evidence filed on the stay application

In support of its application for a stay, the Salvation Army filed an Affidavit which annexed a statement affirmed by Commissioner Tidd, Territorial Commander Australia Southern Territory of the Salvation Army (TSAS). The Statement had been prepared for the purpose of the Salvation Army’s response to the Royal Commission into Institutional Responses to Child Sexual Abuse.

The Statement included information about how the Salvation Army had conducted various boys’ homes. It was evident that during the Royal Commission the Salvation Army had been able to form conclusions about what it had done and not done to protect children, and how it had responded to complaints. Commissioner Tidd acknowledged there were children who had told staff that they had been abused and, in most cases, nothing was done.

Commissioner Tidd had also referred to and agreed with findings of an investigation report by Mr Walker, a former director of the Professional Standards Unit for TSAS between 2014 and 2018, who had concluded that TSAS had failed to adequately investigate and respond to such claims. Commissioner Tidd had acknowledged that the failure to report the allegations to police had the effect of masking child sexual abuse and protecting alleged perpetrators.

Significantly, the Court stated:

“Whether the Tidd statement or the Walker report are admissible at trial of RC’s claim is irrelevant. What those documents reveal is that, by no later than August 2015, the Salvation Army has been able to identify relevant material from which it has been able to draw conclusions about what the Salvation Army did and did not do during the relevant period but also that Lt Swift did assault boys during the same period. It is not clear what, if anything, has changed since then” [22].

Furthermore, an Affidavit sworn by RC’s solicitor and filed in response to the application, indicated there was a list of at least ten other men who alleged abuse by Lt Swift. The Affidavit:

• identified each of the men who allegedly suffered abuse,
• provided details of the alleged abuse,
• stated when the allegations were first raised by each man,
• stated if the Salvation Army waived reliance on the pre-existing limitation period,
• recorded whether those men received any settlement in relation to their claims.

The Court stressed that the application for a stay would be considered within the confines of the pleaded case, and not by reference to any affidavit evidence that might seek to expand or change the underlying allegations.

Could there be a fair trial?

The Salvation Army submitted there could not be a fair trial because:

• the death of Lt Swift deprived it of the ability to confront him with the claims, and denied the possibility of him being a witness at the trial,
• Watson died in 1968, and was the sole recipient of an alleged report made by RC whilst Lt Swift was still alive. No record of that report was available,
• there was an absence of other officers who were assigned to and worked at the Home during the relevant period who are still alive and could provide relevant information,
• there was an absence of relevant documentary evidence.

Death of Lt Swift

The High Court found the Salvation Army had failed to demonstrate that it had genuinely lost valuable witnesses who might be called at any trial of the allegations. Given it had been confirmed that RC and Lt Swift were at the Home at the same time, the Salvation Army had only lost the possibility of a bare denial by Lt Swift. The Court noted that a cross-examiner who is only missing a denial from an alleged perpetrator can still participate at the trial, particularly in this case where it could be shown that the Salvation Army’s officers almost invariably denied allegations of abuse.

Death of Watson

Similarly, in relation to the death of Watson, the Court said that Salvation Army had not lost valuable evidence as Watson, if he was alive, would only have been able to either confirm or deny that a report was made, which would not necessarily have been detrimental to RC’s case.

Other Officers

The Court observed there were at least two of the fourteen officers assigned to the Home at the relevant time still alive who could provide relevant information.

Further, there was no indication that the Salvation Army attempted to seek information from Lt Swift’s wife (who died in May 2019), whilst dealing with the many allegations against her husband. The wife was also a Salvation Army Officer and therefore would have known about Lt Swift’s duties. No explanation was given in relation to the Salvation Army’s failure to obtain her evidence.

RC and other alleged victims

The Court found the Salvation Army was aware of the nature of RC’s allegations. While the passage of time may have had a negative impact on RC’s memory, his recollection could be subject to cross-examination at trial. RC could also be cross-examined on any discrepancies between the alleged abuse as pleaded and as described in his Affidavit.

The Court also questioned how the absence of records of the complaints could have assisted the Salvation Army. While a finding that no complaint was made might go to RC’s credit, the absence of a complaint would not say much about whether the abuse occurred or not. The Court considered that the Salvation Army had not established that the trial of that claim would be unfair.

The Court also noted the similarities between the evidence of RC and the ten other potential victims he identified, as to Lt Swift’s behaviour and abusive actions. Even if there was an absence of complaints in relation to those allegations, those witnesses could be cross-examined.

The Court highlighted that the Salvation Army had available to it evidentiary tools to attempt to alleviate unfairness. Further, the Court stressed that “showing only that the Salvation Army has not found any external evidence which it might use to challenge RC’s evidence does not show that a trial of RC’s allegations would be unfair”.

Ultimately, the Court concluded that the Salvation Army had sufficient material available to make an informed response to RC’s evidence.

Implications

The High Court’s judgment reaffirms the very high threshold to succeed in a stay application in abuse cases. The onus is on the defendant to prove that a trial would be manifestly unfair. The Court has confirmed there is a clear difference between not having found or not having available evidence to challenge the allegations made by the claimant, and the actual peril of an unfair trial. Not having access to supporting evidence does not equate to an unfair trial.

The death of relevant witnesses and the alleged perpetrator may not be enough, on its own, to obtain a stay. The Court will still look to whether other types of evidence, such as testimony from other witnesses or written records, can suffice for the defendant to respond to the claimant’s allegations.

The Court will not look favourably upon a defendant who has failed to make inquiries of available witnesses or inspect available records, and then uses the difficulty of obtaining evidence due to the passage of time as a reason to claim that a trial would be unfair. This has implications for the investigative procedures that organisations should adopt moving forward.

Defendants should take forensic steps to investigate sexual abuse allegations, particularly if the perpetrator has been involved in several other similar claims. A Defendant will need to establish it has taken wide ranging investigations to inform itself of whether there are means to respond to allegations, even if this means having to contact potential witnesses, including spouses, other victims of an alleged perpetrator and others who might shed light on key facts.

Given the highly fact specific nature of stay applications, considerable uncertainty will remain in determining when such matters are likely to be stayed.