22 Jan 2019

Lawyer of woman forced to pay likely abuser says decision will have 'chilling effect'

3:38 pm on 22 January 2019

The lawyer of a woman ordered to pay $28,000 to her likely abuser has urged the justice minister to intervene and has called for law reform to avoid 'retraumatisation' of victims.

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Photo: Women's Refuge

Yesterday, Justice Edwards ordered Mariya Taylor to pay her alleged abuser $28,000, despite finding it "likely" he assaulted and falsely imprisoned her in the 1980s in behaviour described as "heinous".

Ms Taylor made her claims against Robert Roper and the Royal New Zealand Air Force (RNZAF), which were dismissed in September because the claims were made outside The Limitations Act.

In separate case in 2014, Roper was tried and convicted of 20 counts of sexual offending against members of his family and three other women between 1976 and 1988. This included the rape of his own daughter.

One of the woman's lawyers, Geraldine Whiteford, said her client was overwhelmed by the decision and had been revictimised and retraumatised due to the legal process.

"Mr Roper is a man who subjected her to serious abuse and the judge found most of it had occurred and it's had a devastating effect on her psychologically, so the effect of the decision is to revictimise her," she said.

She said the case highlighted an area where law reform was required to ensure abuse victims were able to achieve adequate redress and that failure to do would create a chill factor, making victims reluctant to come forward.

"It's a terrible decision for other victims of sexual abuse because they can't get justice through the criminal system, but delivers shockingly poor outcomes for victims, the civil system is a slightly easier route for victims who wish to seek justice against the perpetrators and this decision will have a chilling effect on victims who are considering this route."

Ms Whiteford said the United Nations had called for governments to ensure laws allowed victims to pursue redress.

Ms Whiteford called for Justice Minister Andrew Little to intervene and for law reform to give judges a better guide to use their discretion around determining court costs.

Speaking to Morning Report from the United Nations offices in Geneva, Mr Little declined to address the particulars of the case until he had studied what legal advice had been given to Ms Taylor, which he said may have been poor.

"It's a most unfortunate outcome, I'd have to consider how she's been been a victim or what she's been a victim of, whether it's the court system or whether indeed it's the poor advice of her lawyer," he said.

"As a former lawyer myself, dealing often with vulnerable people ... I was equally aware of lawyers who often gave advice to people that I found unfathomable and the only person who walked away with anything was the lawyer with a big fat paycheque and the client who had to pay for it."

Ms Whiteford has denied her client was given shoddy legal advice. "Mariya had a very very good case and a very good legal team.

"The barrister taking the case is a very senior barrister. He's done hundreds of cases in Australia. He was an acting judge for a while. He's a senior counsel."

Mr Little signalled he would not be looking into the issue of costs being paid under these types of the circumstances.

"The issue of High Court costs, the judges and the Law Society deal with and the Attorney-General takes responsibility for that sort of thing.

"There's long-established rules about costs and ... costs and cost rewards are reviewed periodically, but there are some basic principles that are about ensuring that some people who take big risks or lawyers who advise clients to take risks, when the risks don't pay off, then there is a consequence."

Ms Taylor had sought damages against both Roper and the RNZAF for the mental harm she said was caused by Roper's actions between 1985 and 1987 at the Whenuapai air base in Auckland.

Sixteen witnesses, including two experts, gave evidence at the trial.

RNZAF denied she raised complaints with it. However, witnesses said he locked her in a wire-walled storage cupboard and she said it occurred once a month, sometimes for more than an hour, over years.

"I found it likely that Mr Roper had acted as [she] alleged, and that these acts were a material and substantial cause of [her] mental injury, namely, her post-traumatic stress disorder," Justice Edwards wrote in a decision.

"There can be no dispute that Mr Roper's conduct towards [her] was heinous."

Whenuapai Air Base - RNZAF Base Auckland

The abuse allegedly took place at the Whenuapai air base in Auckland in the 1980s. Photo: RNZ / Claire Eastham-Farrelly

However, because the Ms Taylor's claims were made outside The Limitations Act, and because there was insufficient evidence to support her claims of disability preventing her from making them earlier, Justice Edwards could not uphold the case.

Because Roper incurred costs while providing a legal defence, he was eligible to claim costs against Ms Taylor.

Justice Edwards said awarding the costs against Ms Taylor "encourages litigants to consider whether there are cost-effective alternatives to court litigation to resolve the underlying dispute".