Bas v The Estate of Nas (Dec)
[2000] WASCA 270
•22 SEPTEMBER 2000
BAS -v- THE ESTATE OF NAS (DEC) [2000] WASCA 270
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 270 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:95/1998 | 23 AUGUST 2000 | |
| Coram: | PIDGEON J IPP J ANDERSON J | 22/09/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| PDF Version |
| Parties: | BAS THE ESTATE OF NAS (DEC) |
Catchwords: | Criminal injuries compensation Practice and procedure Long-term sexual abuse Alleged offender never tried Proof of offences Standard of proof Manner and sufficiency of proof Whether oral evidence required Expert evidence Uncontradicted opinion of psychologist Failure to give reasons for leaving opinion out of account Evidence of denials by alleged offender to police Use to be made of |
Legislation: | Criminal Injuries Compensation Act 1970 (WA), s 6A, s 6B, s 4 Criminal Injuries Compensation Act 1982 (WA), s 11, s 36 Criminal Injuries Compensation Act 1985 (WA), s 28, s 30, s 43 District Court of Western Australia Act (WA), s 80 Evidence Act 1906 (WA), s 79C |
Case References: | Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36 Re Carter (1984) 4 SR (WA) 219 Casarotto v Australian Postal Commission (1989) 86 ALR 399 "S" v The Queen (1989) 168 CLR 266 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : BAS -v- THE ESTATE OF NAS (DEC) [2000] WASCA 270 CORAM : PIDGEON J
- IPP J
ANDERSON J
- Appellant
AND
THE ESTATE OF NAS (DEC)
Respondent
EX PARTE
BAS
Applicant
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Catchwords:
Criminal injuries compensation - Practice and procedure - Long-term sexual abuse - Alleged offender never tried - Proof of offences - Standard of proof - Manner and sufficiency of proof - Whether oral evidence required - Expert evidence - Uncontradicted opinion of psychologist - Failure to give reasons for leaving opinion out of account - Evidence of denials by alleged offender to police - Use to be made of
Legislation:
Criminal Injuries Compensation Act 1970(WA), s 6A, s 6B, s 4
Criminal Injuries Compensation Act 1982 (WA), s 11, s 36
Criminal Injuries Compensation Act 1985 (WA), s 28, s 30, s 43
District Court of Western Australia Act (WA), s 80
Evidence Act 1906 (WA), s 79C
Result:
Appeal allowed
Representation:
FUL 95 of 1998
Counsel:
Appellant : Mr M T Ritter
Respondent : Ms C G Jenkins & Ms C L Bathurst
Solicitors:
Appellant : Young & Young
Respondent : State Crown Solicitor
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CIV 2331 of 1998
Counsel:
Applicant : Mr M T Ritter
Solicitors:
Applicant : Young & Young
Case(s) referred to in judgment(s):
Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36
Re Carter (1984) 4 SR (WA) 219
Case(s) also cited:
Casarotto v Australian Postal Commission (1989) 86 ALR 399
"S" v The Queen (1989) 168 CLR 266
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588
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1 JUDGMENT OF THE COURT: On 26 May 1998, a judgment was handed down in the District Court dismissing applications made by the appellant for criminal injuries compensation. The claims for compensation were in respect to a series of offences alleged to have been committed between 1 January 1980 and 30 September 1989. They were sexual offences allegedly committed against the appellant by her natural father while the appellant was between the ages of about 7 years and about 17 years. The claims were dismissed essentially on the ground that the appellant had failed to prove that any of the alleged offences had been committed against her.
The applicable legislation
2 During this nine year period, there were three successive Acts of Parliament which regulated the entitlement to criminal injuries compensation and the procedures involved in making application. They were the Criminal Injuries (Compensation) Act 1970, the Criminal Injuries Compensation Act 1982 and the Criminal Injuries Compensation Act 1985. The appellant made an application to the District Court under the 1970 Act in respect of the offences which she alleged were committed while that Act was in force, and she made an application to the Assessor of Criminal Injuries Compensation in respect of the offences which she alleged were committed while the 1982 and 1985 Acts were in force. The latter two Acts contained provisions authorising the Assessor to refer applications to the District Court. On the request of the appellant's solicitors, the Assessor referred the appellant's application under the 1982 and 1985 Acts to the District Court. That is how the applications under the three Acts came to be heard and determined in the District Court. As has been said, they were dismissed.
The competency of the appeals
3 It is accepted by the respondent that there is an appeal as of right to this Court from the dismissal of an application under the 1970 Act. There is, however, no right of appeal from the dismissal of an application under either the 1982 Act or the 1985 Act. This hurdle was sought to be overcome by recourse to the prerogative writ of certiorari. Section 80 of the District Court of Western Australia Act provides that no judgment or order of a District Court Judge shall be removed by appeal, motion, certiorari or otherwise, into any other court, except in the manner and according to the provisions of the District Court of Western Australia Act. The Act does not appear to authorise the bringing-up of a judgment or
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- order for quashing. Mr Ritter, counsel for the appellant, sought to abandon the application for certiorari as he could not show there was an error on the face of the record in relation to the decision to dismiss the application made under the 1982 and 1985 Acts. He did not address argument on s 80. The order nisi for certiorari was accordingly discharged. The hearing proceeded as an appeal from the decision to dismiss the application made pursuant to the 1970 Act. This application related to criminal offences alleged to have been committed against the appellant in 1980 and 1981.
4 At the conclusion of argument, the Court announced its decision to allow the appeal and remit the application to the District Court for rehearing. These are our reasons for that decision.
The nature of the proceedings; the practice and procedure
5 The appellant's father was initially charged with a great many offences. The indictment that was presented against him, however, contained only nine counts. The father was not tried on the indictment. Shortly before his trial was due to start in this Court, he committed suicide.
6 That there was no trial does not affect the appellant's entitlement to compensation. Entitlement to compensation does not depend on convictions being recorded. The relevant sections of the 1970 Act, introduced into that Act by an amendment in 1976, are s 6A and 6B which provide:
"6A. (1) Where, on an application made to The District Court of Western Australia, a person satisfies the court that [she] has suffered injury or loss in consequence of the commission of an offence and that no person has been tried with the commission of the offence, the Court may grant a certificate stating the sum to which [she] would have been entitled pursuant to an order under section 4 if the person or persons who committed the offence had been convicted of the offence and an order had been made under that section.
6B. A person or personal representative to whom a certificate has been granted under … section 6A may make application in writing to the Under Secretary for payment
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- to [her] of the sum so specified in the certificate out of the Consolidated Revenue Fund."
7 (Section 4 is the section which provides for compensation to applicants following the conviction of an offender.)
8 There is nothing in the 1970 Act which requires that criminal charges be first laid or which requires the court to determine an application only upon evidence admissible in a court of law. The requirement in s 6A that the applicant "satisfies the court" that she has suffered loss in consequence of a crime has always been interpreted broadly. It has never been doubted that the Judge may depart from the legal rules of evidence and procedure.
9 This is certainly so under the later Acts. In the 1982 Act, s 11 provides that "the Assessor shall expeditiously and informally determine applications … having regard to the requirements of justice and without regard to legal forms and solemnities; and … shall be free to act without regard to, or to observe, legal rules relating to evidence or procedure". By s 36 the Judge to whom an application is referred by an Assessor is entitled to determine the application solely on the evidence and information forwarded by the Assessor - that is, informally and on hearsay evidence. Provisions substantially in the same terms were re-enacted in the 1985 Act: Criminal Injuries Compensation Act 1985 s 28, s 30 and s 43.
10 In this case it was not suggested that the court had to take a stricter approach in its determination of the application made under the 1970 Act than in its determination of the application made under the 1982 and 1985 Acts. Although, as we will mention, there appears to have been some uncertainty below as to the correct procedures, it was accepted that the Judge could determine both applications without regard to legal rules relating to evidence or procedure.
11 It is settled that the standard of proof in criminal injuries compensation cases is the civil standard. The proceedings are not criminal proceedings, but civil proceedings. The applicant may succeed if the offending conduct is proved on the balance of probabilities: Re Application of Ann-Maree Hanratty (1984) 14 A Crim R 36; Re Carter (1984) 4 SR (WA) 219, especially at 221.
The evidence
12 The material that was presented to the learned Judge included:
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- (a) A copy of the appellant's deposition to police prepared in about June 1991.
(b) A copy of the appellant's statement to the Assessor of Criminal Injuries Compensation dated 2 November 1995.
(c) The reports of the two counsellors, Ms Christensen and Ms Canet, who work in the sexual assault field counselling victims of sexual assault. They were involved in counselling the appellant in 1991 and 1992.
(d) The report of a clinical psychologist, Mr Stephen Cohen, dated 24 March 1998.
(e) The Crown brief to prosecute the father, including the police complaints, the statement of facts, the statement of prosecution witnesses, a written record of an interview between the father and Detective Constables Mills and Snook and the indictment.
13 The appellant's deposition contains quite a lot of generalised evidence, but that is only to be expected in a deposition which purports to recount persistent sexual abuse spanning 9 or 10 years, commencing in early childhood. The deposition does contain a level of detail with respect to several matters. For example, set out below is that part of the deposition in which there is an account of the earliest incident with respect to which compensation was sought:
"At the beginning of 1980, my family moved from Gibb Street, Bunbury to Learmonth, I started Grade 2 shortly after we arrived at Learmonth.
When we moved to Learmonth, we travelled in our XY GT Falcon, it was candy apple red in colour with black paint outs and stripes.
We were towing a caravan which was quite big and had a green stripe on it.
I remember that we were moving to Learmonth because dad was going to work on a fishing boat for Kailis Fisheries.
When we drove to Learmonth we stopped overnight at a hotel/motel, this hotel/motel was a single storey building.
We had two rooms that were adjoining with a connecting door. The sleeping arrangements were my two older brothers slept in
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- one room and Matthew, mum, dad and me slept in the other room. Matthew and I slept in foldaway beds.
I remember before I went to bed, I had a shower and washed my hair, I can remember this because I hated going to bed with my hair wet.
The next thing I remember that night is waking up in dad's bed, mum and dad were sleeping in single beds in the room.
When I woke up I felt my father rubbing my breasts and vagina with his hand.
My nightie was up around my stomach and I wasn't wearing any knickers.
I remember going to bed with knickers on and I don't know how they were taken off.
Whilst my father was rubbing and touching my breasts and vagina, I looked over and saw my mother was asleep. My father didn't say anything to me whilst he was doing this and I was confused about what he was doing.
I can't remember how long he touched me for. I do remember him rubbing my breasts and vagina. I cannot remember how I came to be in his bed and I do not remember leaving the bed."
14 It is obviously this allegation which is the subject of the first count on the indictment. It is fairly typical of the specificity with which a number of other incidents are described. There is, as we have said, also a lot of generalised evidence in the deposition.
15 As has been noted, the deposition was made in 1991. The appellant's statement to the Assessor, which was made in November 1995, does not go into as much detail. It was, of course, unnecessary to do so as the deposition was available to the Assessor. So far as it goes, however, the statement to the Assessor contains an account of life within a family, the members of which were dominated by a father who had developed a lust for the appellant. The following is a sample taken from the second and third page of the statement:
"Thinking back now, I remember how I used to dread the mornings at home. My mother would come into my bedroom to wake me up and tell me to go to my father and give him a
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- cuddle. When going to my father he would make me get into his bed next to him. The incidents of sexual abuse would then occur.
These incidents occurred frequently up to when I reached the age of 15 years. Following that they still occurred but less frequently.
If I did not go and see my father when my mother woke me, then I would get into trouble and would receive the silent treatment by my father. All the family would then be on edge.
These incidents of sexual abuse would occur whenever my mother and my brothers would go out and my father and I were left alone in the house. They would also occur in the mornings and in the evenings when I was to give my father a cuddle in bed.
Whenever I knew my mother was going out I would always beg and ask to go out with her. I wanted to avoid being home on my own with my father. My mother would always have to first ask my father if I could go with her. The answer was always no and that I had to stay home with my father. This allowed the incidents of sexual abuse to occur."
16 When the deposition which was made in 1991 and the statement which was made in 1995 are put together, they tell of a female child seduced and corrupted at a young age by her father who persistently used her for sexual gratification until the stage was reached in her development where she was able to resist him.
17 According to the appellant, the circumstances under which she reported her father to the police were as follows.
18 After completing her tertiary entrance examination and failing to gain university entrance, the appellant left home to live in a flat with a girlfriend. The family at that time was living in Augusta. The flat was also in Augusta. This was shortly before her 18th birthday. The appellant's father refused to accept her decision to leave home. He appeared to be keeping her under surveillance, driving past her flat frequently and on one occasion bursting into her flat and accusing her, as she put it, of "sleeping around". To one of her counsellors, she described her father's behaviour as that of a "jealous lover". In her statement to the Assessor she said that in his pleas to her to return to the family he told her
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- "that he was dying" and that her mother was "having a nervous breakdown" (AB 118). Eventually, after some two weeks, she agreed to go back to the family home on the father's promise to her that, as she put it, "the sexual incidents would not occur any longer and that he would leave me alone". Shortly before she was due to move back, she paid her family a visit. While they were all watching a video, she fell asleep on the lounge. This upset her father. She said he angrily accused her of being sexually active. As she put it in her statement to the Assessor: "My father was very angry at me and said 'You must be doing something naughty as you are always falling asleep' ". According to the appellant, after this incident she decided she could not go back to live at home. She went that night to the home of the local police officer and made her complaint.
The expert evidence
19 In the months that followed her complaint to police, the appellant had sexual assault counselling from two counsellors. Both provided reports, and these reports reinforce the appellant's claims of long term sexual abuse. They speak of her extreme emotional state, of her feeling that she had been cheated of her "right to a protected and unmolested childhood"; of her being "confused by the actions of her father"; of being "let down by her mother who, she suspected, knew about the abuse ... "; of her courage; of her attempts at "trying to understand and forgive" the rest of the family for siding with her father after her disclosures were made; and of her "determination to seek justice".
20 In March 1998 the appellant's solicitors referred her to the clinical psychologist Mr Stephen Cohen for assessment. This was for the purpose of her compensation claim. Mr Cohen took a general history from her. He did not ask her to recount the assaults. He had her deposition and the statement she had made to the Assessor and the history which he took was directed at how the father's behaviour had affected her psychologically, rather than to the details of that behaviour. He wrote a report in which he set out the symptoms which the appellant described to him and concluded that they were "those of post-traumatic stress disorder and clinical depression".
21 In his report, Mr Cohen says that he had the appellant complete what he called "The Beck Depression Inventory" and "the Impact of Events Scale". His assessment was (AB 137):
"The results of the Beck Depression Inventory indicate a woman who is severely clinically depressed. She finds herself
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- sad and unhappy a great deal of the time, looking back on her life and seeing many failures. She is dissatisfied with most aspects of her life. She cries regularly for no identifiable reason and rarely gets more than five hours sleep.
The results of the Impact of Events Scale indicate a woman who is severely affected on a day to day basis by the sexual assaults. She regularly finds herself thinking about the assaults when she does not mean to. She attempts, albeit unsuccessfully, to remove it from her memory. The assaults trouble her sleep and result in regular nightmares. Pictures and reminders often pop into her mind ... "
The hearing
22 The hearing was on 30 March 1998. This was about seven years after the appellant had made her deposition to police, nearly six years after the trial of her father had been aborted by his suicide, and more than two and a half years after she had given her statement to the Assessor of Criminal Injuries Compensation.
23 Some three months before the hearing, the appellant's solicitors prepared a short affidavit for her to swear, which she did. Annexed to this affidavit were her deposition, her statement to the Assessor and the report of the two sexual assault counsellors. In her affidavit she deposed to the truth of her deposition and statement and gave a brief account of her current emotional state and domestic circumstances and gave particulars of some expenses amounting to about $200 which she claimed had been recently incurred for treatment and travelling. Mr Cohen swore an affidavit to which his report was annexed and that too was filed.
24 When the hearing began, there was a lengthy discussion between counsel and the court concerning the procedures that should be followed in order to satisfy the requirements of all three Acts. In particular, there was debate as to whether the appellant should give oral evidence or whether her case in chief was sufficiently proved by her affidavit and annexures and the other written material which had been forwarded to the court by the Assessor. It is fairly clear from what counsel for the appellant told the court that, until the morning of the hearing, she had intended to rely only on the documentary evidence (AB 177 - 178). It would appear, however, that on the morning of the hearing there was a discussion between counsel in consequence of which counsel for the appellant decided that she had better lead oral evidence from the
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- appellant. Exactly why it was considered necessary to do so is difficult to understand and was never clearly explained by either counsel in the submissions which they each made to the court concerning questions of proof. We cannot see what purpose was intended to be served by leading oral evidence from the appellant in the circumstances. Her deposition and the statement which she made to the Assessor were plainly admissible under s 79C of the Evidence Act 1906 (WA). The learned trial Judge made observations to the effect that it was not usual in this kind of case for detailed oral evidence to be led. Counsel for the respondent responded to this by submitting that without oral evidence the court would not know to which of the charges in the indictment the appellant's various allegations in her deposition related (AB 189 - 190). We do not see, with respect, how any uncertainty in that regard could be resolved by oral evidence. The appellant was not the author of the indictment. However that may be, the learned trial Judge ultimately ruled that oral evidence should be given. He said to counsel for the appellant (AB 142; 190):
"I think you will need to lead the evidence, Miss Penny."
26 Examination-in-chief then proceeded as follows (AB 143):
"Just take it slowly. We do have to hear of some of these, if you can just tell us?---All I know is that I went to bed at night and during the night he obviously got me out of bed and into his bed and was touching my breasts and my vagina and making me touch him.
When you say 'touch him', where was he making you touch him?---On his genitals.
Can you remember how old you were about this time?---About 6 or 7.
Did you want him to do that to you?---No."
(Page 13)
27 This evidence was in accordance with that part of the appellant's deposition, made seven years previously, dealing with that incident. However, when asked whether any sexual activity occurred in the caravan in which they lived after arrival at Learmonth, the appellant gave only generalised and non-specific evidence of sexual molestation involving touching of her breasts and genitals and of being required to touch her father's genitals.
28 That was the oral evidence led in support of the claim under the 1970 Act. The oral evidence led in support of the balance of the claim was entirely generalised and non-specific and covers a mere three pages of transcript.
29 Counsel for the respondent then proceeded to cross-examine the appellant. For the most part, cross-examination focused upon the evidence which the appellant had given in examination-in-chief of sexual misconduct by the father in the post-1985 period and upon inconsistencies between that evidence and her deposition. So far as we can see, there was no cross-examination directed to the appellant's written or oral evidence relating to the incidents the subject of the claims under the 1970 Act.
30 No-one else gave oral evidence. The reports of the two sexual assault counsellors were not objected to. Neither of the counsellors was required to attend for cross-examination. Mr Cohen's report was not objected to and he was not required to attend for cross-examination.
31 The learned trial Judge acted on a combination of three matters in dismissing the appellant's claims. According to his Honour:
(a) the appellant's oral evidence "seriously contradicted" her deposition;
(b) the allegations made in the appellant's oral evidence were "very broad" and had a "vagueness" in them and she had "difficulty in describing particular instances";
(c) the "respondent" [sic the father] denied the allegations.
32 In our opinion, these matters were not a proper basis on which to hold that the appellant had not made out a case for criminal injuries compensation on the balance of probabilities. We will deal briefly with them.
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Contradictory evidence
33 In all, his Honour identified a total of three inconsistencies or contradictions, as he termed them, in the appellant's evidence. The first of these was what he appeared to think was an internal inconsistency in the appellant's oral evidence as to the frequency with which she was molested by the father while the family was living in the caravan at Learmonth in 1980 and early 1981. With respect, his Honour seems simply to have misunderstood this part of the appellant's evidence. He appears to have understood her evidence to be that: (a) she was molested up to four times a week; (b) this occurred when her mother was away from the caravan playing darts at night; (c) her mother went out to darts only once a week. If this was the appellant's evidence, it did contain a logical inconsistency. It is obvious enough that if she was only molested on nights when her mother went to darts and her mother went to darts only once a week she could not have been molested up to four times a week. However, the appellant's evidence was not to that effect at all. Her evidence (AB 192 A-B) was to the effect that when she was molested by her father her mother was usually away from the caravan, although sometimes the molestation would occur in the mornings when she was called into her father's bed before her parents got up. The appellant's evidence was that dart playing once a week was one of the things that caused her mother to be away from the caravan, but it was not the only thing. We cannot agree that the appellant's oral evidence contains the inconsistency which his Honour thought it contained.
34 The second of the three inconsistencies or contradictions identified by his Honour was in the appellant's evidence as to the total period of time over which the molestation of her by her father continued. At 28 - 29 of her deposition (AB 110 - 111) the appellant gave a description of an interplay between her father and her in the parents' bedroom, which involved the appellant masturbating her father to ejaculation while he was committing sexual acts upon her. In her deposition she says that she remembers this event "because it was the last time anything happened between us". In her deposition, she put the date of the incident as being September 1989. His Honour thought the oral evidence given by the appellant, and her statement to the Assessor, contradicted this part of her deposition. We cannot find any contradiction between the statement to the Assessor and the deposition. The oral evidence to which his Honour referred was the appellant's testimony to the effect that the father continued to commit acts of abuse until shortly before she left home in early 1990. Whether this is inconsistent with the deposition that the bedroom incident in September 1989 was "the last time anything
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- happened between us" depends on what the appellant meant in the deposition by "between us". In its context, the statement is at least open to the interpretation that the bedroom incident was the last time there was sexual interplay. The appellant was cross-examined on the point and gave that very explanation. She explained that in her deposition she meant only to convey that the incident in September 1989 was the last time when " ... I had to touch him with - to do with him; to do with masturbating or giving him oral sex or anything like that. It didn't stop him touching me still." She denied that she meant to convey in the deposition that it was the last time he "touched" her. This explanation, if accepted, would resolve the apparent inconsistency. His Honour did not indicate that he rejected the explanation. He appears simply to have overlooked it.
35 The third inconsistency identified by his Honour related to the appellant's evidence of an occasion when her father required her to commit fellatio upon him. In her deposition she gave a detailed account of that event, including that it happened in early 1985 in the house at Bunbury. According to her deposition there was no other incident when she actually committed fellatio upon her father, although there were many occasions, she said, when her father tried to get her to do so. The point made by his Honour was that when led in examination-in-chief with respect to fellatio (or "oral sex" as it was termed at trial) the appellant referred to the incident in question - the Bunbury incident - as one of many such incidents. She said that "It happened all the time. It wasn't something that was new. It just would happen." She was cross-examined on the point and insisted that oral sex of the kind described was a regular occurrence over the whole time during which she was being subjected to sexual abuse by her father. However she could not, or would not, give details of any other incident of fellatio and did not give a satisfactory explanation for why, if it was a frequent occurrence over a long period, her deposition was to the effect that there was but a single incident of fellatio. His Honour was therefore quite justified in referring to this as an inconsistency in her evidence which amounted to a contradiction of her deposition. It is, however, an insubstantial and inadequate ground on which to reject the whole of the evidence of sexual abuse.
"Broadness" and "Vagueness" and "Difficulty in describing particular instances"
36 There is no doubt that these words are apt to describe the appellant's oral evidence. But the appellant's oral evidence was only a small part of the proof. It seems quite clear from the transcript of the discussion
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- between counsel and the learned Judge that although she did attempt to lead oral evidence from the appellant, counsel for the appellant still relied mainly on the written evidence including the appellant's deposition, the truth of which the appellant attested and which contained an extensive and fairly detailed account of the commission of criminal offences against the appellant. Counsel for the respondent did not contend that that material was inadmissible or not probative of the appellant's case. As we have observed, his Honour himself indicated that he thought it was unnecessary to lead from the appellant the detailed evidence contained in her deposition (AB 189). It is manifestly the case that the appellant had not been proofed to give detailed oral evidence.
37 That being so, the appellant's case was not to be judged by the specificity in her oral evidence (or by the lack of it) but by reference to the whole of the probative material before the court including, of course, her written statements.
38 With due respect, what seems to have happened in the end is that his Honour looked to the oral evidence for proof of the offences and judged the appellant's case on the quality of that evidence. He appears to have used the appellant's deposition and her written statement to the Assessor not as probative of the appellant's claims but as if they were nothing more than prior inconsistent statements admissible only to test the veracity of the oral evidence. In all the circumstances, that was not a fair way to judge the application.
Denials by the father
39 The father was deceased and did not give evidence. The denials to which his Honour referred presumably are the denials made by the father in his interview with the police. A written record of that interview was before his Honour. The denials did not contain any exculpatory explanations or any evidence of alibi or evidence of lack of opportunity or anything of the kind. They were bare denials. What his Honour said was:
"In my view because of the vagueness of the applicant's allegations combined with the inconsistencies and the respondent's denial that these matters occurred I am not able to be satisfied on the balance of probabilities as to the applicant's case."
40 It is not at all clear, with respect, what use his Honour made of the father's denials. It is as if his Honour gave positive weight to the fact that
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- the father denied the matters put to him by the police. We are unable to see how the bare fact that the father made denials can in any way go into the scales.
41 For the reasons abovementioned, we are of the opinion that the adjudication of this case miscarried.
42 There is another matter of some significance which should be mentioned. It concerns the evidence of Mr Cohen relating to the results of the psychological tests which he administered to the appellant. Mr Cohen's evidence generally must be treated as expert opinion supporting the appellant's claim that she had suffered serious sexual abuse over a long period. That was an opinion formed not just upon what the appellant herself told him but upon the results of clinical tests which he conducted. There was no challenge to the validity of the tests. It was not suggested on behalf of the respondent that the tests were unreliable or inappropriate, or that they lacked acceptance in this field. Mr Cohen was not cross-examined, nor were his conclusions contradicted by other evidence. The court of trial was therefore not entitled to ignore Mr Cohen's evidence, as his Honour appears to have done. On the face of it, Mr Cohen's opinion was important evidence probative of the appellant's case and it therefore demanded consideration in the adjudication of her application. We must accept Mr Ritter's submission that in dismissing the application without mentioning Mr Cohen's opinion at all, the learned Judge either failed to provide adequate reasons for his decision or failed to have regard for important evidence.
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