A First Nations woman has lost her bid for damages from the state of Queensland after a court ruled the length of time since her alleged sexual and physical abuse in care made it impossible to fairly adjudicate the case.
Joanne Willmot, 69, alleged she had sustained a psychiatric injury after being abused from 1957 to 1967 while living in a foster home, at the Cherbourg girls’ dormitory and while visiting her grandmother.
Willmot was a “child of the state” until her 18th birthday under the Aboriginals Protection and Restriction of the Sale of Opium Act 1897. The legislation, which was repealed in the late 60s, made the state’s director of native affairs the “legal guardian of every Aboriginal child under 21”.
Willmot had alleged the abuse started when she was placed in foster care at about three or four years old with an Indigenous couple, Jack and Tottie Demlin.
Willmot claimed Jack Demlin sexually abused her “on a weekly to a fortnightly basis” and that she was regularly beaten by the couple for minor breaches of their rules.
Another foster child at the house, referred to as RS, is bringing a separate claim against the state for alleged sexual abuse by Demlin. RS claims she also witnessed Demlin abuse her younger sister and Willmot.
The court heard the children were removed from the home in 1959 after reports they were severely malnourished and emaciated.
Willmot was then placed at the Cherbourg girl’s dormitory where she alleged she was subjected to “severe floggings” by the supervisor, an Aboriginal woman called Maude Phillips.
Willmot said Phillips disciplined her and the other girls by beating them with a tree branch, making them stand on one foot for two hours and putting them in a “women’s jail”.
RS told the court she had told Phillips about the alleged abuse by Demlin but she became cranky and accused them of being “little liars”, telling them “Jack Demlin is a Christian man”.
Willmot alleged she was also sexually abused twice by two separate men while visiting her grandmother at One Mile near Ipswich: when she was six years old in 1960 and when she was aged 13 in 1967.
Willmot told the court as a result of the alleged sexual abuse she suffered “trauma, profound fear, anxiety, panic attacks, ongoing intrusive thoughts … and feelings so overwhelming that she had trouble breathing”.
She argued the state failed to protect her from abuse and neglect when she was in their care, did not ensure her foster parents were properly trained or that she was monitored when visiting her grandmother.
The state of Queensland pleaded that “due to the effluxion of time, namely in excess of 60 years, the defendant cannot ascertain the truth or falsity of the allegations”.
As a result, they argued, “there cannot be a fair trial of the issues in dispute.”
The supreme court ruled against Willmot in 2022, and on Tuesday the court of appeal again sided with the state of Queensland. It ordered her to pay the state of Queensland’s costs of the appeal.
The judges said that due to the deaths of several key witnesses they were unable to properly investigate the allegations “which are critical to establishing liability on the part of the state”.
They said the allegations were never put to any of the alleged perpetrators while they were alive and there “are no documents bearing upon the abuse allegations which could overcome this”.
Due to the significant passage of time and the lack of witnesses available to be interviewed, “any trial would be fundamentally unfair, and there is nothing that a trial judge could do to overcome that unfairness,” they said.
The child abuse royal commission found on average that survivors take 22 years to come forward due to a complex set of reasons.
It made findings that sought to remove barriers to justice, which prompted states and territories across the country to remove the statute of limitation period that applied to such cases.
Since then, the Catholic church has been criticised for using the deaths of paedophile clergy to claim it can no longer receive a fair trial and block survivors’ civil claims permanently.
Information and support for anyone affected by rape or sexual abuse issues is available from the following organisations. In Australia, support is available at 1800Respect (1800 737 732). In the UK, Rape Crisis offers support on 0808 802 9999. In the US, Rainn offers support on 800-656-4673. Other international helplines can be found at ibiblio.org/rcip/internl.html
