Abuse Law – Stay of Proceedings Case Law Update  

On 15 September 2023, the New South Wales Supreme Court through Garling J provided at [74], [75], [77], [82], and [84] as follows: 

          Mrs Croft is of full capacity and is able to give evidence in response to the allegations including all of the surrounding facts and circumstances. She is able to provide full and complete instructions to her lawyers with respect to the defence of the claim. There is no material before me which suggested that she is any way impaired in her memory of the events during the time of MTH’s residence with her and Mr Croft at Cleggswood. She was able to give a full, frank and complete account in evidence at the criminal trial of Mr Croft in 2019. Counsel for Mrs Croft did not make any submission by reference to any part of the transcript of the criminal trial that Mrs Croft demonstrated any inability to give appropriate evidence in answer to any question. On my examination of the transcript of Mrs Croft’s evidence at that trial, I could not see any question asked of Mrs Croft which she was unable to answer because of a lack of memory or any impairment of her cognition.  

          The impression I obtained when reading the transcript was of a person whose recall of events of the time, her knowledge of the character and behaviour of her husband, and any of the relevant surrounding circumstances, was clear and unequivocal. As well, her evidence at the criminal trial extended to contradicting the evidence of the twin boys, RS and PS, who gave evidence at the trial.  

          I accept that the death of Mr Croft means that any evidence which he is capable of giving directly about the assaults of which he is accused by MTH will not be available to Mrs Croft. However, I note that Mr Harris, his solicitor at the trial, is alive and maintains his file of the criminal proceedings. He is unwilling to make it available because he, entirely properly, asserts that the contents of it are privileged and that he has no instructions contrary to the maintenance of that privilege. So much may be accepted. Whether that position will change in the future if probate is granted of Mr Croft’s will cannot be known. Whether MTH or Mrs Croft could argue that the death of Mr Croft and the absence of any executor of his Estate, is sufficient for the Court to hold that the privilege is no longer maintained, again, is not a matter to be determined now for the purposes of this Motion.  

          Whilst Mrs Croft submitted that the absence of the availability of any evidence from Mr McIlveen by reason of his death was a significant prejudice to the conduct of her case, I am not so persuaded. The records of Mr McIlveen’s observations, opinions and statements of fact which he could give in evidence at a hearing are contained in the Departmental file – the contents of which would, I would expect in the ordinary course of a hearing, be admissible as business records by reason of s 69 of the Evidence Act. Again, whilst I accept that there may be some prejudice created by the absence of Mr McIlveen as a witness, because he cannot expand on the matters he has documented or discuss the character of Mr and Mrs Croft, in my assessment that prejudice is of a relatively low level because of the contemporaneously created records, and the availability of other witnesses capable of giving any tendency or good character evidence about Mr Croft. 

          I am also influenced in coming to my decision by the fact that Mrs Croft has available to call at any hearing, witnesses who were called during the criminal trial, namely foster children who lived at the Croft’s property, Cleggswood, who were able to give evidence touching upon the good character and the absence of any tendency to engage in sexual or physical assault or other forms of violence of Mr Croft, his behaviour towards them, and the way in which they were raised whilst staying with Mr and Mrs Croft. Significantly, as appears from the transcript of the criminal trial, this evidence describes the complete absence of any conduct of a kind which approaches the physical and sexual assaults alleged by the plaintiff or any other form of violence.