Respondent had not met the heavy burden of proving that a fair trial was impossible: court
The High Court has overturned a permanent stay in a historical abuse case against the Salvation Army, allowing the trial to proceed despite challenges from the passage of time and lost evidence.
The case, brought by a claimant known as RC, centred on allegations that RC suffered abuse at the hands of a Salvation Army officer in the late 1950s and early 1960s.
RC alleged that Lieutenant Frank Swift, a Salvation Army officer at the Nedlands Boys’ Home in Western Australia, sexually abused him during his time at the home. RC filed the claim in 2018, after limitations on such claims were lifted under the Limitation Act 2005 (WA), which removed the time bar for child sexual abuse actions.
The Salvation Army argued for a permanent stay of the proceedings, citing the death of key witnesses, including Lt Swift in 2006 and Major Watson, the home’s manager, in 1968. They claimed the passage of time and lack of documentary evidence would prevent a fair trial. Both the District Court of WA and the WA Court of Appeal agreed with this position and granted a stay.
However, the High Court found that the Salvation Army had not met the heavy burden of proving that a fair trial was impossible. The court emphasised that trials involving historical allegations often rely on the assessment of witness credibility and that the unavailability of certain witnesses or records does not automatically render a trial unfair. The court also noted that the Salvation Army had access to significant contextual information, including past admissions that systemic failings allowed abuse to occur at its institutions.
The High Court ruled that the case should proceed, finding that the Salvation Army had not demonstrated sufficient prejudice to justify halting the trial. It highlighted evidence presented to the Royal Commission into Institutional Responses to Child Sexual Abuse, which showed the Salvation Army had long been aware of allegations against Lt Swift, as well as evidence of similar allegations by other individuals. The case will now proceed to trial.
