Abuse Law – Stay of Proceedings Case Law Update  

The reference by the associate justice to YZ’s complaints being ‘not plainly unbelievable’ was merely his assessment of YZ’s account regarding the timing of the home allegations.  In reading the associate justice’s reasons as a whole, it is patently apparent that this was just one of many considerations that his Honour had regard to.  I reject Weiden’s submission that the use of this phrase indicated that the associate justice set the bar too high and applied the wrong test.  If YZ’s allegations or explanations of alleged inconsistencies were plainly unbelievable, that would have been a factor relevant to a finding that continuation of the proceedings would have brought the administration of justice into disrepute.  For those reasons, this assessment by the associate justice was not an irrelevant consideration, and there was no error by him in making such an observation.  Therefore, ground…must fail. [75] 

Indeed, the associate justice expressly acknowledged that ‘given the passage of time, it is impossible to know what evidence has been lost or what evidence may have been given by any particular witness’.[82]  This comment is not inconsistent with the associate justice’s observation that there was no evidence put forward by Weiden as to the surrounding circumstances.  Further, this consideration was not determinative of the application, and instead, it must be seen as one of the many factors his Honour considered in his determination of the permanent stay application.  Therefore, ground…must also fail. [78] 

I am satisfied the associate justice was correct to hold that the presence of some inconsistencies in YZ’s account should not be determinative of the application.  Instead, his Honour considered such inconsistencies in the context of the otherwise consistent complaints made by YZ in respect of the identification of Weiden, and the location and nature of the abuse.  I am satisfied that this too was the correct approach – his Honour expressly considered whether, in all the circumstances, maintaining the proceedings would be manifestly unfair to Weiden or would otherwise bring the administration of justice into disrepute.  There was no error by the associate justice in this respect, and for those reasons, the ground…must fail. [80] 

The same can be said in relation to Weiden’s complaint that the associate justice erred in failing to find that YZ’s allegations were vague, unreliable, and could not be acted upon safely.  I do not consider this to be a fair categorisation of the multiple allegations made by YZ.  As noted above, those inconsistencies may be tested under cross-examination.  Until such time, I am not satisfied that the allegations can be fairly described as vague and unreliable, such that they cannot be acted upon safely.  Ground…also fails. [81] 

I consider Weiden’s submissions in respect of the associate justice’s comment that there was no evidence as to the impact of the prejudice arising from the loss of the medical records, to be misconceived. This was not a standalone consideration by the associate justice, but rather, a factor which was part of his Honour’s overall evaluation of the circumstances pertaining to the proceedings, and whether a permanent stay should be granted. [83] 

As was noted in Connellan, reasonable minds might differ as to whether it is ‘unjustifiably burdensome’ to allow a proceeding involving a substantial elapse of time to continue.[91] The fact that on appeal the court might take a different view than the lower court is not a basis for overturning the primary judge’s decision.[92]  Rather, on appeal, the court should only interfere if discretionary error is demonstrated or if the court is satisfied that the continuance of the proceedings would be an abuse of process.[93]  For all of the reasons outlined above, I am not persuaded that the associate justice erred in refusing to grant a permanent stay of the proceeding. [92] 

In response the second defendant’s appeal regarding the temporary permanent stay of the plaintiff’s proceedings, the Court provided the following: 

Ultimately, I agree with the associate justice’s decision not to grant a temporary stay of the proceeding.  However, in my view, the conclusion reached by the associate justice that there was no indication that Weiden intends to give evidence in the civil proceeding was glaringly improbable and constituted an error of fact. [138] 

At hearing, the parties agreed that it was unlikely that Weiden would, of his own volition, return to Australia.  The practical effect of a grant of a temporary stay at this time would therefore mean YZ’s ability to pursue his civil claim would be in the hands of Weiden or the police.  Unless Weiden decides to voluntarily come to Australia, or the police re-consider its decision in respect of Weiden’s extradition, it is probable the grant of a temporary stay will apply indefinitely. [144] 

In my view, there is not sufficient evidence to presently conclude that it is on the cards that Weiden will face criminal prosecution.  Given the agreement as between the parties that Weiden will not voluntarily come to Australia, and, at present, the police have decided not to pursue Weiden’s extradition, it will only be if circumstances change so as to cause the police to reconsider the decision (to extradite Weiden) that it could be said that prosecution of him is on the cards. [145] 

In determining this appeal, I am mindful that the privilege against self-incrimination is a basic and substantive common law right. If Weiden is convicted of offences arising from YZ’s allegations, he would almost certainly suffer a loss of his personal liberty, with the potential for him to face a lengthy term of imprisonment. However at this stage, for the reasons expressed above, whilst Weiden remains outside of the jurisdiction the risk to him of criminal prosecution remains a farfetched possibility. [151]