Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 20 July 2019.
Jenny commences civil action against her uncle, seeking damages for alleged sexual assaults that occurred when she was 12 years old, some 40 years ago.
Jenny is now able to make a claim for compensation due to amendments to the Limitation Act in 2016, that allow an action to be “brought at any time”.
Jenny’s uncle makes an application to the Court, seeking that proceedings be permanently “stayed” on the basis that he has now developed advanced dementia and is unable to participate in the proceedings. His solicitor claims that a fair trial is not possible and that the continuation of proceedings would amount to an “abuse of process”.
In considering the application, the Court notes that Jenny alleges that the assaults occurred when she was living with her uncle. She first complained to the police in 2015, there are no witnesses and no documentary evidence in existence.
The Court considers medical evidence stating that the defendant does not have capacity to understand questions adequately and has “poor recall of past events” and is now “non-verbal” due to his severe dementia. The Court states that there was no evidence that the defendant was confronted with the allegations prior to the onset of his dementia.
The Court states that the minimum standards required for a fair trial require the accused to have an ability to understand the charge, to understand the nature of the proceedings and to understand the effect of the evidence.
The Court ultimately found that the defendant was unfit to stand trial and ordered that the facts of the case were “sufficiently exceptional” to warrant a permanent stay of proceedings with their practical effect that Jenny’s action did not proceed.
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.
