Double v The Salvation Army (Victoria) Property Trust

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

INSTITUTIONAL LIABILITY LIST

S ECI 2021 02238

BETWEEN:

CARA DOUBLE	Plaintiff
and
THE SALVATION ARMY (VICTORIA) PROPERTY TRUST	Defendant

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9, 13, 14, 16, 20 & 21 June 2023
DATE OF JUDGMENT:	7 August 2023
CASE MAY BE CITED AS:	Double v The Salvation Army (Victoria) Property Trust
MEDIUM NEUTRAL CITATION:	[2023] VSC 452

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INSTITUTIONAL LIABILITY – Plaintiff self-represented litigant – Plaintiff claims to have been resident at Brayton Youth Hostel in the period 2002 to 2004 – Plaintiff claims to have been groomed and sexually abused by an employee of the defendant during approximately the first six months of that period – Plaintiff claims life ruined by abuse and seeks common law damages for breach of duty and vicarious liability – Accused employee called to give evidence and denied the plaintiff’s claims – Manager and other residential worker also called to give evidence – Credit and reliability of witnesses’ evidence – Contemporaneous records – Civil standard of proof – Strength of evidence – ‘Actual persuasion’ required – Evidence Act2008 (Vic), s 140 – Briginshaw v Briginshaw (1938) 60 CLR 336, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, DP (a pseudonym) v Bird [2021] VSC 850 and Fox v Percy (2003) 214 CLR 118 – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	RN Annesley KC with DJ Wallis	Minter Ellison
As amicus curiae on 14 & 16 June 2023	D McWilliams	Victorian Bar Pro Bono Scheme

HIS HONOUR:

A. Introduction

Whichever way you come at it, this case is a tragedy.

The plaintiff was born in Melbourne on 20 February 1987. She gave evidence that her mother was a heroin addict and that she had been born addicted to heroin and spent ‘the first three years of my life in a humidity crib’.[1] The plaintiff’s parents were divorced when she was five years of age.
[1]Transcript (‘T’) 10.

At some point, the plaintiff’s mother commenced a relationship with a man who became the plaintiff’s stepfather. The plaintiff gave evidence that her stepfather was an internationally qualified chef, which caused the family regularly to move. The plaintiff attended many different schools in Victoria, and also attended school in the Northern Territory.

When the plaintiff was 13 years of age, she came to be living in Kyabram in northern Victoria; about 30 minutes from Shepparton. Her stepfather had a café – the Sidewalk Café – and the plaintiff attended school at Kyabram Secondary College. At that time she was in year 7 and living with her mother, stepfather and two siblings.

The plaintiff gave evidence that she was physically assaulted by her mother and a neighbour ‘called the department’.[2] The plaintiff said that the assault had been precipitated by her reporting to her mother an incident of digital rape said to have been perpetrated by her stepfather. She said that her mother had told her not to take her husband.[3]
[2]T12.
[3]T153.

The plaintiff came to live at Brayton Youth Hostel (‘Brayton’), which was and is a refuge for young people operated by the defendant outside of Shepparton.

The evidence disclosed that premises at Brayton are like a camp: comprising tennis courts, a swimming pool, a dam, open areas, a building containing a recreation area and offices, a dormitory building and another building referred to as ‘the house’ or ‘the hub house’.[4] The plaintiff resided in a room in the dormitory building, but gave evidence that she had been rostered to undertake chores in ‘the house’. She said that ‘the house’ was where ‘the younger residents would reside’.[5]
[4]See generally, Exhibit C (CB462).
[5]T14.

The plaintiff said that Brayton was run by ‘Mark Rumble and the Salvation Army’, although she rarely saw Mr Rumble. The plaintiff said that she mainly had contact with ‘Damien’.[6]
[6]T13.

Mr Rumble, ‘Damien’ (Damien Nunan) and another worker at Brayton (Colleen Webber) gave evidence at the trial. All of those witnesses are now employed elsewhere. For his part, Mr Rumble is a Chaplain at a primary school in Shepparton.

Mr Rumble gave evidence that Brayton accommodated young people experiencing homelessness. He explained that many had experienced a lot of trauma. Some young people referred themselves; others were referred by organisations. Some were ‘statutory’ – which seems to have meant that they were formally within the care of Brayton – but most were ‘voluntary’.[7]
[7]T312.

Brayton operated pursuant to a ‘holistic’ model of care overseen by Mr Rumble. It had an intake worker, a psychotherapist, two case managers and, ‘on any given day’, two residential workers, as well as Mr Rumble.[8] Mr Nunan and Ms Webber were each initially residential workers and later became case managers.
[8]T316.

Mr Rumble explained that the model of care involved three ‘multi systemic assessments’ (‘MSAs’) culminating in a ‘case plan’. He described the system as follows –

So basically it is a staged assessment where you interview the young person, where possible you interview the young person’s parents and carers. You interview everybody who is around that young person who would probably have influence on that young person. This is all done with the young person and family’s permission. And then at the end of a series of three interviews you would then formulate a plan on how to move forward. … So our intake and assessment work would use that model for every single young person that came on the property. In addition to that and working in parallel with the multi systemic assessment we adopted a program called the Good Lives model, and our program got a State award for that model as best practice at the time which was quite exciting.[9]

[9]T328.

Mr Rumble also explained that Brayton conducted a ‘job placement employment and training program’ as well as a ‘restorative justice program’.[10]
[10]T313-314.

The plaintiff said that she lived at Brayton for about two years in the period 2002 to 2004 and that she was not going to school during that time. The content of the three MSAs and case plan relating to the plaintiff – several parts of which were prepared by Mr Nunan – assumed significance during the trial.

The plaintiff gave evidence that Mr Nunan started ‘grooming’ her about three weeks after her arrival at Brayton. She said –

Mr Nunan was quite friendly to me from the beginning. When I say friendly, I mean, you know, polite, well spoken, things like that. And then as time went on conversations got a little bit blurred between what’s right and wrong I think now. I didn’t know then but I do realise it now. Conversations around my period or conversations around how I should be towards my husband when I marry, certain things like that. Then came the touching and everything else after that.[11]

[11]T14.

The plaintiff later gave evidence of an incident in which she said that Mr Nunan had been teaching her to drive the Brayton minibus. The bus was manual and it ‘bunny hopped’ and she nearly put it into the dam. She said that Mr Nunan had dropped his glasses onto the floor of the minibus. She suspected that he had taken advantage of that opportunity to brush against her lower body as he picked up his glasses.[12]
[12]T56-57.

The plaintiff gave evidence of four incidents in which she said that she had been raped by Mr Nunan in ‘the house’. She estimated that the first incident occurred about four weeks after she had arrived at Brayton.

The plaintiff said that she had been rostered to clean in ‘the house’. She said that Mr Nunan had approached her and asked for a hug and then touched her ‘inappropriately’ below the waist. Things progressed and the rapes were said to have occurred on the floor of the lounge room in ‘the house’ with the plaintiff’s head next to the gas wall heater.[13]
[13]T15.

She said that she ‘didn’t know that it was wrong’ and explained further as follows –

… I just let it happen, but he was assuring me that it was okay to happen and this is what is meant to happen, this is what God wills to do. And he was teaching me in his own words how life could be towards my husband once I married.[14]

[14]Ibid.

The plaintiff said that Mr Nunan ‘would say various scriptures’, although she could not remember what parts.[15]
[15]Later, the plaintiff referred to ‘Psalms 11’: T95.

She also said that Mr Nunan –

(a) was ‘not nasty to me’ and ‘trying to be soothing about it’; and

(b) said that she could feel safe there with him and that no force was used.[16]

[16]T16.

That said, the plaintiff also said that it was physically painful and she was scared. She said that she was bleeding after the first time. She said that after it was finished Mr Nunan asked her if she was okay and said ‘we won’t tell anyone about this’.[17]
[17]T17.

In evidence in chief, the plaintiff said that it was ‘the same way’ every time and estimated that it had occurred ‘at least four times, I’m going to say five times, a hundred per cent nearly but at least four times’.[18]
[18]T18.

She said that it stopped ‘probably six months after the first time’ and ‘he molested me after that’.[19] She said that Mr Nunan had said that it was ‘a shame when little girls get too old’, and she thought that he did not want her to get pregnant.[20]
[19]Ibid.
[20]T19.

The plaintiff also said that she had experienced ‘really, really bad hallucinations’ as a consequence of being placed on Efexor – an anti-depressant – three weeks after her arrival at Brayton and without her having seen a doctor. In that connection, she said –

… I saw blood running down my walls and things like that. So Mr Nunan had essentially made up (indistinct) that I was a child of Satan, I wasn’t baptised so they had to get me baptised, he said.[21]

[21]Ibid.

The plaintiff said that Mr Nunan had told her that she was ‘in the devil’s playground’ until she was baptised. She said that he attributed the hallucinations to that, and not to the medication that she was taking.[22]
[22]Ibid.

I should make it clear that in the course of his evidence, Mr Nunan firmly denied the plaintiff’s account of grooming, touching, rape and molestation. Indeed, he spoke of and displayed a degree of revulsion in the course of giving that evidence.

The plaintiff gave evidence that she later disclosed the events to another Brayton resident, Luke Button. He told her that it was ‘wrong’ and she became upset. She gave evidence that –

I wanted to kill myself. I didn’t want to be here anymore because I felt like what have I - I felt like I didn’t stop him or anything, because it’s wrong I didn’t - and because I - well, I didn't know it was wrong, I didn’t try to stop him, it’s like I blame myself. I actually tried to kill myself after that, I drank (indistinct) ammonia there.[23]

[23]T21.

The plaintiff said that she started ‘slicing’ her wrists, had ‘14 stitches’ in her left wrist and became ‘really, really depressed and withdrawn’. She said that she began to take ‘respite’ during the day ‘for a couple of hours’ at the home of Ms Webber.[24] In that regard, the plaintiff said –

… I don’t actually remember disclosing the full extent of what happened [to Ms Webber] but I feel like she knew somewhat what was going on because she asked me if I was okay just out of the blue one day and I asked her to define what okay meant. And that was the end of the conversation, she didn’t continue.[25]

[24]T21-22.

[25]T22.

Ms Webber remembered the plaintiff as ‘a very nice young lady’ and said that she was ‘certainly never the most difficult resident we had at Brayton’.[26]
[26]T266.

Ms Webber remembered transporting the plaintiff from the supermarket and that the plaintiff had been friends with Luke Button, who had also had a friendship with Ms Webber’s son. Ms Webber remembered the plaintiff coming to her home with Luke Button, but denied that she had provided the plaintiff with any kind of respite there. She also denied any suspicion that the plaintiff was being sexually abused.

The plaintiff gave evidence that the incidents to which I have referred occurred when she was 15 years of age and that she left Brayton when she was ‘16, nearly 17’.[27] She said that she applied for a one bedroom unit in Shepparton and had left Brayton and never gone back.
[27]T23.

The plaintiff said that she then commenced an apprenticeship as a chef at La Porchetta in Shepparton. She said that she became ‘heavily, heavily involved in drugs’ and completed only about six months of her two-year apprenticeship. She said she got the sack because she was depressed and ‘very drug addled’.[28]
[28]T24.

The plaintiff also gave evidence of going to a stable in connection with her interest in horses and her dream of having wanted to be a jockey. However, ‘drugs were just rampant’.[29]
[29]T34.

The plaintiff gave evidence of a sequence of tragic and shocking subsequent events in her life, including involvement with drugs, being forced by a partner to work as a sex worker, two rapes, moving to Melbourne, the births of her children and events involving them, very harrowing experiences of domestic violence including fractured ribs, a fractured nose, a broken jaw, strangulation, hospitalisation, eye socket fractures, a fractured skull, threats to kill and ultimately having had to flee to Queensland in early 2018.[30] The plaintiff obtained an apprehended violence order and has not since returned to Victoria.
[30]See, in particular, T107-113.

Since being in Queensland, the plaintiff studied mediumship online and had an on-line business for a time working as a psychic medium, but has since disbanded that enterprise. In that regard, she said –

… [with] everything that’s happened in my past, I can’t deal with [it] and it’s making it hard to just deal with everyday life, to be honest.[31]

[31]T32.

It was evident that the plaintiff has had periods where she was prescribed anti-depressants, including a long period in which it seems that she may have been prescribed Efexor. However, she has evidently had little in the way of psychiatric treatment and is presently untreated and taking no medications.

That said, there was no issue that the plaintiff suffers psychiatrically. In that regard, Dr Sandra Hacker, a very experienced psychiatrist, examined the plaintiff for medico-legal purposes and identified four diagnoses, including chronic post-traumatic stress disorder.[32]
[32]T295.

The plaintiff said that she had tried to forget about the abuse at Brayton, but could not. She said –

… Since I have been off my medication … I started remembering little things here and there. Because before that I was able to put it straight to the back of my mind, like, I had just forgotten about it. Once I came off my medication everything started coming back.[33]

[33]T33.

As to the effect of the alleged abuse, the plaintiff said –

It’s ruined my life. It has literally ruined my life from that time onwards. It has ruined any trust I had in men which I don’t anymore. I don’t even trust my relationship that I have started, like, now, that I’m in.[34]

[34]T35.

The plaintiff said that she did not see herself as being mentally able to work anymore and many days she could not even get out of bed. She gave evidence of reliving the traumas in her life, ‘especially the events that happened at Brayton’.[35]
[35]T36.

The plaintiff identified her reasons for bringing the case as follows –

So the reason that I’m bringing my case forward mainly is because I feel like somebody has to say something. There is other children involved, I know that, I know that he still works there obviously. And even though I was – I’m scared in a sense and I’m embarrassed but somebody has to say something because he needs to be held accountable for what he did. Also it’s ruined my life, I cannot work anymore, I know I can’t, look at me, I cry at the drop of a hat. Because before Brayton I was not like this. I was - even though I had other traumas in my life before that, I was a normal, you know, I’m going to say happy kid considering. The events that happened at Brayton I believe have actually helped curb the way my life has gone, if that makes sense. I’m also seeking damages as well because I can’t work and I believe I can’t work due to Brayton.[36]

[36]T37-38.

On 28 June 2021 the plaintiff commenced these proceedings seeking damages. At that time, she was represented by Shine Lawyers.

B. The proceeding

The plaintiff’s statement of claim was drawn by counsel. She claims in negligence and vicarious liability in respect of alleged sexual abuse by ‘a male by the name of Damian who worked at Brayton as a full time Chaplain’ during the period ‘2002 until 2004’, when she was ‘aged 15 to 17’.[37]
[37]The plaintiff’s pleading included two further allegations that attracted no significant attention at trial. The plaintiff did not take issue with the defendant’s contention that those allegations should be taken to have been abandoned.

The defendant filed its defence dated 16 August 2021. Among other things, the defendant –

(a) admitted that the plaintiff became a resident at Brayton on 16 September 2004;

(b) denied that it employed a full time chaplain;

(c) denied that it employed ‘a male by the name of Damian as a full-time chaplain’; and

(d) admitted that it owed the plaintiff a duty to avoid foreseeable risk of injury while she resided at Brayton.

On 2 June 2022 the plaintiff filed an amended statement of claim. Of present relevance, the pleading was amended to –

(a) include the surname ‘Nunan’, so that the allegation became that the defendant had employed ‘a male by the name of Damian Nunan’; and

(b) delete the allegation that ‘Damian’ had worked ‘as a full time Chaplain’.

On 22 August 2022, the defendant brought third party proceedings against Mr Nunan. That proceeding was dismissed by consent orders made on 7 October 2022. As I have noted, Mr Nunan was called to give evidence at trial by the defendant.

On 2 November 2022, Shine Lawyers was granted leave to file and serve a notice of ceasing to act for the plaintiff. It emerged that this occurred following a mediation.

Thereafter, the plaintiff was unable to obtain legal representation. It is not clear precisely what steps were taken by her with a view to obtaining such representation.

Shortly prior to trial, the plaintiff applied to conduct her case as a cause and via Zoom (from Queensland). In particular, she spoke of her very grave fear of returning to Victoria; having fled severe domestic violence here. It was also evident that she now has very limited resources and practically no means of support in Melbourne. For its part, the defendant sought to maintain its right to a trial in person and before a jury. For reasons delivered ex tempore, I acceded to the plaintiff’s application.

The trial unfolded in a ‘hybrid’ manner. As I have indicated, the plaintiff participated and gave evidence via Zoom. Two other witnesses also gave evidence remotely (Dr Hacker and Ms Webber). On the other hand, counsel and solicitors for the defendant were present in the Courtroom, as were certain other witnesses (Mr Nunan, Mr Rumble and the defendant’s solicitor, Dora Cosentino).

In the course of the trial it was necessary for me to give the plaintiff significant assistance. In so doing, I endeavoured to observe the principles outlined in the relevant authorities.[38] For the most part, that took place without objection from the defendant.
[38]See, in particular, Tomasevic v Travaglini (2007) 17 VR 100, McWhinney v Melbourne Health (2011) 31 VR 285 and Zhong v Melbourne Health [2015] VSCA 165.

The substance of the plaintiff’s case was that she had been groomed and abused by Mr Nunan and, consequently, her life had been ruined.

The defendant denied practically every element of the plaintiff’s case, but the real focus was upon the alleged occurrences of the grooming and abuse; which were strongly denied.

In that context, the central issues concerned the credit and reliability of the plaintiff and other witnesses and, in that regard, whether the plaintiff had discharged her onus of proving, on the balance of probabilities, that the grooming and abuse occurred.

The plaintiff gave oral evidence and also called Dr Hacker. Dr Hacker’s reports were tendered into evidence.[39] In addition, the report of a forensic accountant – Mark Thompson – was tendered by consent;[40] as was the report of the competing forensic accountant retained by the defendant, Norio Hino.[41]
[39]Exhibit 2.
[40]Exhibit 1.
[41]Exhibit M.

For its part, the defendant called Ms Webber, Mr Rumble and Mr Nunan.

It became apparent that the distress of the plaintiff was likely to be such that it was not desirable that she be required personally to cross-examine Mr Nunan. Both parties agreed that orders could be made referring that task to the Pro Bono Scheme conducted by the Victorian Bar.

Mr D McWilliams of counsel answered that call and appeared at the trial as amicus curiae. At short notice, he attended Court, reviewed tendered material and portions of the transcript, viewed the evidence in chief of Mr Nunan, sought and obtained instructions from the plaintiff and thereafter cross-examined Mr Nunan. In so doing, Mr McWilliams contributed significantly to the administration of justice and I should here acknowledge that contribution, as I did at the conclusion of his appearance.

A further and significant part of the defendant’s defence rested in various records and other material to which the witnesses were relevantly taken in evidence. In particular –

(a) various photographs of the Brayton property, including an aerial photograph of the property and a photograph of the exterior of ‘the house’;[42]
[42]Exhibit C.

(b) the Brayton client file of documents relating to the plaintiff;[43]

(c) the Brayton psychotherapy file relating to the plaintiff;[44] and

(d) Mr Nunan’s computerised record of employment at Brayton.[45]

[43]Exhibit H.

[44]Exhibit I.

[45]Exhibit K.

It emerged that the defendant had also operated a system of electronic note taking and incident reports and that at some point there must have been a collection of electronic ‘handover’ and other notes relating to the plaintiff. Investigations had not been able to locate those records. Among other things, subpoenas to other organisations had not produced responsive documents.

In addition, the defendant emphasised the differences between –

(a) the plaintiff’s version of events at trial and earlier versions of those same events; and

(b) the plaintiff’s earlier recollections concerning Mr Nunan’s appearance and features and his appearance and features evident at trial.

In that connection, the defendant referred to –

(a) a letter from Minter Ellison, the solicitors for the defendant, and the responding letter from Shine Lawyers;[46]
[46]Exhibit A.

(b) the defendant’s interrogatory 6 to the plaintiff and the plaintiff’s answers to that interrogatory accompanied by her signatures;[47]

(c) a letter of instructions from Shine Lawyers to Dr Hacker;[48] and

(d) various photographs of Mr Nunan.[49]

[47]Exhibit B.

[48]Exhibit E.

[49]Exhibit J.

The documentary exhibits were not limited to those to which I have referred.

C. Applicable principles: the standard of proof and related issues

As I have indicated, the central issue is whether the alleged grooming and abuse occurred. As the defendant was at various points at pains to emphasise, the plaintiff carries the onus of proof.

The proceeding is civil in nature and s 140 of the Evidence Act 2008 (Vic) (‘Evidence Act’) states the applicable standard of proof as follows –

(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account—
(a)       the nature of the cause of action or defence; and
(b)       the nature of the subject-matter of the proceeding; and
(c)       the gravity of the matters alleged.

The matters identified in s 140(2) of the Evidence Act are mandatory considerations. They are not exhaustive.

In Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission,[50] in respect of s 140(2) of the Evidence Act 1995 (Cth), the Full Court of the Federal Court stated –

The mandatory considerations which s 140(2) specifies reflect a legislative intention that a court must be mindful of the forensic context in forming an opinion as to its satisfaction about matters in evidence. Ordinarily, the more serious the consequences of what is contested in the litigation, the more a court will have regard to the strength and weakness of evidence before it in coming to a conclusion.[51]

[50](2007) 162 FCR 466 (‘CEPU’).

[51]CEPU (n 50) [30].

Whilst s 140(2) has been taken to superimpose mandatory statutory requirements, the New South Wales Court of Appeal has also considered it to reflect the common law stated by Dixon J (as his Honour then was) in Briginshaw v Briginshaw (‘Briginshaw’).[52] In that regard, in a well-known passage, his Honour addressed the civil standard and stated –

… when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. … Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.[53]

[52]Briginshaw v Briginshaw (1938) 60 CLR 336 (‘Briginshaw’). See, Morley v Australian Securities and Investments Commission (2010) 247 FLR 140 and Musa v Alzreaiawi [2021] NSWCA 12, [40].

[53]Briginshaw (n 52) 361-362.

His Honour thereafter noted that where, in a civil proceeding, a question arises as to whether a crime has been committed, the standard of persuasion is the same as upon other civil issues, but ‘weight is given to the presumption of innocence and exactness of proof is expected’, albeit that ‘the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain’.[54]
[54]Ibid 363.

In the present instance, the defendant emphasised the application by the Family Court of the ‘rigorous civil standard of proof pursuant to the test enunciated by the High Court in Briginshaw and restated in s 140 of the Evidence Act 1995 (Cth)’ in cases involving the determination of allegations of the sexual abuse of children.[55] It is unnecessary to undertake any direct application of the principles there discussed. I am satisfied that the determination of allegations of grooming and sexual abuse of the present kind should attract both s 140 of the Evidence Act and the reasoning of Dixon J in Briginshaw.
[55]See the discussion in Re W (sex abuse: standard of proof) (2004) 32 Fam LR 249, [13]-[16].

I should add, as should be evident, that many cases have subsequently considered and directly or indirectly applied the reasoning of Dixon J in Briginshaw.[56] In particular, in a passage presently emphasised in argument by the defendant, in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, Mason CJ, Brennan, Deane and Gaudron JJ stated –

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[57]
[References omitted]

[56]See, in particular, the recent survey of relevant principle by Besanko J in Roberts-Smith v Fairfax Media Publications Pty Ltd (No 41) [2023] FCA 555, [95]-[109] (‘Roberts-Smith’).

[57]Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449, 449-450.

In that regard, their Honours emphasised that ‘generalisations’ about the need for ‘clear and cogent evidence’ can be ‘unhelpful and even misleading’ and that care should be taken in order that an issue required to be determined on the balance of probabilities should not be determined ‘by an unbalanced standard’.[58]
[58]Ibid 450-451.

In addition to the question of the applicable standard of proof, of course, it must be borne in mind that the burden of proof in respect of the matters alleged rests upon the plaintiff. In that regard, there can be cases in which the trier of fact is left in doubt such that the only just conclusion is that the burden of proof has not been discharged.[59]
[59]See, Rhesa Shipping Co SA v Edmunds [1985] 2 All ER 712, 718 as extracted in Roberts-Smith (n 56) [118].

Mention should also be made of the fact that, among other things, the events concerned occurred roughly 20 years ago and, on any view, at a time at which the plaintiff was in her adolescence.

In that regard, albeit in a context that is different to the present in more than one way, in Longman v The Queen,[60] McHugh J stated –

The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person’s ability to ”remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person’s own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine …
No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be …[61]

[60]Longman v The Queen (1989) 168 CLR 79.

[61]Ibid 107-108.

Notwithstanding the above, in DP (a pseudonym) v Bird,[62] J Forrest J stated that it is well accepted that delay in making a complaint is not necessarily inconsistent with the credibility of the complainant’s account. In that regard, his Honour referred to s 53 of the Jury Directions Act 2015 (Vic) and the directions consequently given to a jury in a criminal proceeding involving complaints of sexual assault, and thereafter stated that all such considerations ‘(on both sides of the ledger) hold good for judges in their determination of the facts of a particular civil case’.[63]
[62]DP (a pseudonym) v Bird [2021] VSC 850.
[63]Ibid [82]. Cf., Bishop Paul Bernard Bird v DP (a pseudonym) [2023] VSCA 66.

For completeness, I should note that in Fox v Percy,[64] Gleeson CJ, Gummow and Kirby JJ referred to authorities in which courts have ‘cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses’.[65] In that regard, their Honours explained further, as follows –

… in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.[66]
[References omitted]
[64]Fox v Percy (2003) 214 CLR 118.
[65]Ibid [30].
[66]Ibid [31]. See also, State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) (1999) 160 ALR 588.

D. The witnesses (and other aspects of the evidence)

As I have indicated, the credit and reliability of the lay witnesses (particularly, the plaintiff), loomed as significant in the determination of the central issue whether the alleged grooming and sexual abuse occurred.

Plaintiff

As I have indicated, the plaintiff gave evidence remotely via Zoom. In my view, that did not impede my assessment of her evidence, or her credit and reliability as a witness. Counsel for the defendant did not suggest otherwise in address.

In a succinct and powerful final address, the plaintiff said that she was telling the truth ‘to the utmost best of my recollection considering the incident happened 20 years ago’.[67]
[67]T560.

By contrast, senior counsel for the defendant submitted that the plaintiff was a ‘wholly unreliable witness’.[68] She said that the plaintiff’s evidence was affected by ‘inconsistencies, exaggerations, unfounded assertions, lies, implausibilities and improbabilities’.[69] She later submitted that the plaintiff had been ‘selective … manipulative and untruthful’.[70] In written closing submissions, it was submitted on behalf of the defendant that the plaintiff’s credibility was ‘in tatters’.[71]
[68]T528.
[69]T528-529.
[70]T542.
[71]Defendant’s written closing submissions, [10].

As I have earlier indicated, there was no issue that the plaintiff suffers from a number of diagnosed psychiatric conditions.[72] Dr Hacker identified several diagnoses, including chronic post-traumatic stress disorder[73] and recurrent depression.[74]
[72]T37.
[73]T296.
[74]T299.

The present issue is not simply the psychiatric conditions that undoubtedly afflict the plaintiff; rather, it is a combination of those conditions and their traumatic and other origins that is of significance.

In that regard, as later explained in some further detail, the plaintiff seems to have been affected by altered consciousness or hallucinations during at least part of the period of the alleged events.

Further, whether or not the plaintiff’s allegations concerning Mr Nunan are accepted, she has on any view suffered severe and sustained trauma in her life and her psychiatric conditions are at least partly founded in those experiences.

Dr Hacker referred to the distorting effect of trauma and associated psychiatric illness and said –

… time issues are often incorrect because the incidents happened a very long time ago and we know that the perception of time in such circumstances is often incorrect. So it is never surprising that the accuracy, the timeline accuracy is often invalid, incorrect. But I would not see this as invalidating – I mean, sometimes people’s timeline histories is very, very distorted but that’s often part of the nature of the illness from which they are suffering.[75]

[75]T281. See also, T307-309.

That said, in evidence to which I will later return, Dr Hacker distinguished distortion of memory from confabulation and rejected as ‘most unlikely’ the proposition that the plaintiff could have been assaulted by someone but got the place and person wrong.[76]
[76]T309-310.

In any event, consistently with the evidence of Dr Hacker concerning the distorting effect of trauma upon memory, early in her evidence, and in respect of her memory of having lived at Brayton for ‘two years’, the plaintiff said –

… my memory is not shot completely but it is not – I’m just letting you guys know that I can’t remember exact times and dates.[77]

[77]T12. See also, T42-43 and T126.

In that regard, from the outset, the plaintiff did not claim to be a perfect historian.

Nonetheless, the plaintiff tended to cling resolutely to the account ultimately given by her in evidence, even in the face of outwardly authentic contemporaneous and other documents that might be taken to suggest contrary facts. In that regard, for example, at various points the plaintiff –

(a) described a photograph as having been ‘doctored’;

(b) described the suggested evidence of other witnesses as ‘lies’;

(c) disclaimed any use of her stepfather’s surname (having earlier acknowledged using that surname); and

(d) disclaimed what appeared to be her signature on various documents.

Such an approach is apt to raise questions concerning the reliability if not honesty of the evidence of the relevant witness.

In the present instance, I tend to think that the plaintiff’s approach is to be explained by a range of considerations commencing with but extending well beyond her trauma and psychiatric diagnoses.

In that regard, even before cross examination commenced, the plaintiff had moments of evident vulnerability and emotion in her evidence.

The cross examination that followed was exacting, attritional and, at times, abrasive. It also extended across a total of nearly two hearing days.[78]
[78]Cross-examination of the plaintiff commenced on the afternoon of the first day of the trial, extended through the entirety of the second day and was completed during the morning session of the following day.

I do not mean to be unduly critical of senior counsel for the defendant for electing to undertake cross-examination of the plaintiff in the manner described. There were plainly matters that could be put; and a great proportion of the process was directed to exposing disconformity between the plaintiff’s account in oral evidence and the anticipated evidence of other witnesses as well as the contents of certain documents.[79]
[79]That said, it should not be thought that the style of cross-examination undertaken by senior counsel in the present instance was the only appropriate form of cross-examination of a person in the position of the plaintiff: cf., Casey v Transport Accident Commission [2015] VSCA 38, [37]-[40] (‘Casey’).

As I have indicated, however, the plaintiff was self-represented, plainly psychiatrically compromised, sensitive and often emotional. For those reasons, more regular breaks were taken in order that she could digest the process and compose herself, particularly during cross-examination. That said, she remained fragile and depleted of composure and emotional resources.

In that context, it was quite evident that the plaintiff was not prepared for the nature of the process that unfolded. From an early point, the plaintiff’s answers in cross examination were significantly affected by her palpable distress together with her evident disbelief of the content of what was being put to her.

In that regard, both the first and second days of hearing were cut short as a consequence of the plaintiff’s considerable and accumulated distress.

In particular, towards the end of the first day, the plaintiff become more and more frazzled until declaring that she could not ‘even remember properly now’. When senior counsel for the defendant sought to press on, the plaintiff exclaimed ‘I don’t know how this is even allowed to go on, like, I don’t understand this, hey?’.[80] The proceeding was adjourned shortly thereafter.
[80]T86.

In a somewhat similar turn of events, the plaintiff got progressively more distressed during the course of the second day. When senior counsel for the defendant sought to explain how much longer she anticipated that she would be in cross-examination, the plaintiff exclaimed ‘Oh my God’.[81]
[81]T188.

In the overall period to which I have referred, the visible appearance of the plaintiff deteriorated very significantly and she became more and more depleted.

In my view, the reasons for the plaintiff’s distress and visible deterioration were not entirely elusive or to be explained by conscious dishonesty or any evident evasiveness in her manner.

As I have indicated, part of the explanation rested in her evident psychiatric state both at the time at which the alleged events occurred and at the time of trial.

Another, and in some ways more important part of the explanation, rests in her evident lack of preparation for a cross-examination of the type undertaken. In that regard, it became quite evident that the plaintiff had not been through the documents in the court book prior to giving her evidence. Indeed, it was tolerably clear that she had never read nor been taken to most if not all of the relevant documents. That would not have been the case if she had been represented at trial.

It follows that the content of many of the documents came as a complete surprise to her. That content was in many instances contrary to her own account and evident memory of events. It is, as I have endeavoured to explain, hardly surprising that at times she reacted with disbelief and queried the veracity of what was being put to her.

The propositions put in respect of the documents were also intermingled with versions of events said to be founded in the anticipated evidence of witnesses that the plaintiff was extremely suspicious of (Mr Rumble) or equally suspicious of as well as highly distressed about (Mr Nunan).

In the circumstances, I consider many of the plaintiff’s answers that the defendant broadly submits to be affected by ‘inconsistencies, exaggerations, unfounded assertions, lies, implausibilities and improbabilities’ to be simply affected by her plain degree of distress at the time together with her lack of preparation for such a cross-examination. In that sense, circumstances combined to provoke a very vulnerable witness into giving some evidence that – as I will come to explain – cannot be accepted. It does not follow, however, that her evidence and veracity as a witness should be wholly rejected.

In that regard, despite her lack of preparation for cross-examination, it was notable that some aspects of the plaintiff’s recollections in respect of Brayton were either generally correct or later shown to have been broadly plausible.

Further, not all of the propositions ‘put’ to the plaintiff in the course of cross-examination later came to be borne out in the evidence of witnesses called by the defendant.[82] Indeed, some of those witnesses came to give evidence that tended to suggest that some of the plaintiff’s recollections were not wholly wide of the mark.
[82]For example, it was ‘put’ that Ms Webber had no memory of the plaintiff attending her home (T182), but, in her evidence in chief, Ms Webber readily acknowledged that the plaintiff had been to her home with Luke Button (T267).

In the circumstances described, it was a not inconsiderable feat for the plaintiff to have endured the process and ultimately to have given the evidence that she did.

In light of the above, in my view, it is not wholly surprising that, at times, the plaintiff came to adopt a defensive, disbelieving, bewildered and even defiant stance that might be said not to have done her complete justice.

I cannot, however, accept the submission of the defendant that the plaintiff was a ‘wholly unreliable’, ‘selective’, ‘manipulative’ and ‘untruthful’ witness whose credibility was generally ‘in tatters’. In my view, it was plain that the plaintiff sincerely believes her account of events and was not at all prepared for the process by which that came to be challenged. That is not to ‘excuse’ her performance in evidence; merely to recognise the truth of it.

In the circumstances described, I consider the plaintiff to have endeavoured to give truthful evidence; she certainly should not be treated as a witness who did not. Nor, in my view, should she be treated as a witness whose evidence is wholly unreliable.

However, it does not follow that it would be appropriate simply to accept the plaintiff’s evidence in respect of the issues in dispute. Clearly the issue is considerably more complicated than that.

In my view, it is appropriate to take very great care in respect of the evidence of the plaintiff. Her evidence should be very carefully evaluated with reference both to the evidence of other witnesses and the relevant documentary evidence.

Dr Hacker

Dr Hacker gave oral evidence essentially at the insistence of the defendant. She was cross examined in considerable detail and presented as a very experienced and careful psychiatrist. Indeed, in my view, Dr Hacker was a wholly impressive witness.

In final address, senior counsel for the defendant submitted that Dr Hacker had ‘done her best to assist the plaintiff’.[83] If, by that submission, it was intended to suggest that Dr Hacker ought be considered to have trespassed into an advocacy role on behalf of the plaintiff, the submission cannot be accepted.

Damien Nunan

[83]T549.

In contrast to the plaintiff, Mr Nunan gave evidence in a manner that bore the hallmarks of attention to the underlying documents. Indeed, it became evident that, independently of the documents, he had a limited memory of the plaintiff.

In final address, senior counsel for the defendant took exception to any suggestion that Mr Nunan’s evidence had been affected by reconstruction. She submitted that he had been ‘refreshing his memory’ by reference to the documents.[84] She later submitted that –

… Mr Nunan gave frank and candid evidence. He was at times stressed and anxious and we say that is understandable given the circumstances in which he found himself, and the gravity of the accusations made against him, the weight of which he feels acutely and deeply.
His denials of any inappropriate behaviour and sexual assault were clear and unambiguous. Notwithstanding the extensive cross-examination of his Christian beliefs, nothing positive was put to him which in any way challenged those denials.
Mr Nunan made appropriate concessions, he did not prevaricate, he was a refreshingly candid witness, in our submission. His values of family and community shone through on being truly held and we submit to you that he is a truly decent man. There is no proper basis for the court not to accept his evidence as to the central issues in dispute and/or in its entirety.[85]

[84]T534.

[85]T544.

Mr Nunan gave evidence in chief at some length and was skilfully cross-examined by Mr McWilliams. I had a good opportunity to observe Mr Nunan and the manner in which he gave his evidence.

I accept that Mr Nunan gave evidence in a manner that was both frank and candid. I also accept that he was at times stressed and anxious.

That said, and importantly, Mr Nunan regularly made appropriate concessions, particularly in cross-examination. That included acknowledging that he ‘pretty much [had] zero recollection’ of his dealings with the plaintiff without having had access to the underlying documents.[86]
[86]T464.

In that regard, Mr Nunan’s manner and answers in cross-examination were considerably more open and fulsome than, in the circumstances, might have been anticipated. There are plenty of cases in which witnesses with a lot less riding on the case than Mr Nunan are much more guarded and defensive in their responses.

Perhaps relevant to the above, I should add that Mr Nunan’s evidence concerning his ‘desire to serve those doing it tough’ and ‘to make the world a better place’,[87] as well as his conversion to Christianity and the quality of his Christian beliefs[88] impressed me as quite sincere.
[87]T384.
[88]T477-483.

In the circumstances, I accept that Mr Nunan generally endeavoured to give truthful evidence.

In that context, in respect of matters such as the layout and identity and role of the staff at Brayton, the system of MSAs and the content of Mr Nunan’s records of assessment relating to the plaintiff (and associated case plan), I accept that his memory was refreshed rather than reconstructed.

Notwithstanding the above, one part of Mr Nunan’s evidence was rather intense and argumentative and, in my view, less likely to be reliable. In that regard, in the course of his evidence in chief concerning the effect of the litigation upon him and his family and what he described as the ‘narrative’ developed by the plaintiff in the litigation,[89] Mr Nunan took up parts of the underlying documents in support of his contentions.[90]
[89]T453-456.
[90]See, in particular, T455-456: ‘… And through the MSA reports, if you read those closely you can see inconsistencies even between Cara and her parents within those reports. She’s described [by her parents] as being a compulsive liar at that stage before she goes into Brayton … This compulsive lying has appeared to continue on.’

What was not so obvious at the time at which Mr Nunan gave evidence is that he had originally been joined to the proceeding personally. When he gave evidence of receiving a statement of claim ‘last year’,[91] that must have been the third party notice joining him to the proceeding. It seems that at that time he received what later came to be referred to as the ‘court book documents’[92] and it seems to me to be hardly surprising that Mr Nunan might then have immersed himself in those documents.
[91]T454.
[92]T467.

In the circumstances, and particularly in light of his otherwise generally reasonable presentation as well as his ready acknowledgement of the fact that he had limited recollection of the plaintiff without the documents, I would draw no adverse conclusion from the otherwise notable extent to which Mr Nunan’s evidence was influenced by the documentary record.

Nonetheless, the feature to which I have referred does mean that it has been necessary to take a little more care when considering some parts of Mr Nunan’s evidence.

That said, reference should be made to one particular aspect of Mr Nunan’s evidence. In cross-examination, the plaintiff was taken to photographs purporting to show Mr Nunan on his wedding day (4 October 2003). The plaintiff did not accept one of the photographs as authentic; indeed, she asserted that it ‘looks like it’s been doctored’.[93]
[93]T175.

Mr Nunan later gave evidence concerning the wedding photographs.[94] He rejected the proposition that any of the photographs had been ‘doctored’. I accept his evidence.
[94]T452-453.

For completeness, I should say that part of the submission of the defendant concerning the evidence of Mr Nunan rested in the assertion that his denials of grooming and abuse were not in ‘any way challenged’ in the course of cross-examination.

I have already referred to the manner in which the plaintiff was cross-examined. I do not accept that it was necessary for counsel appearing amicus curiae to adopt the same approach when cross-examining Mr Nunan. The plaintiff’s evidence concerning grooming and abuse was put to Mr Nunan in detail in the course of his evidence in chief and he firmly denied those allegations.[95] It was quite plain that the parties were at issue over those contentions. I reject the submission that the relevant evidence of Mr Nunan was not in ‘any way challenged’.[96]

Mark Rumble and Colleen Webber

[95]T447-451.

[96]Cf., Casey (n 79) [37]-[40].

The other lay witnesses called by the defendant were Mr Rumble and Ms Webber.

In my view, Mr Rumble, in particular, was an impressively open and considered witness. I consider both Mr Rumble and Ms Webber to have done their best to give truthful evidence and their evidence may generally be accepted as reliable.

I should say, however, that while the cross examination of each of Mr Rumble and Ms Webber did not unfold in the usual way owing to the self-represented status of the plaintiff, by that point in the case it was generally evident that the plaintiff disagreed with significant parts of their evidence.

In that general context, I should mention and perhaps expand upon particular aspects of the evidence of Mr Rumble.

As I have earlier noted, Mr Rumble gave evidence concerning the various programs conducted at Brayton, which included the intake and assessment system and the ‘trauma informed’ model of care known as ‘Good Lives’.

In respect of the latter, Mr Rumble explained the three stage assessment process known as ‘multi-systemic assessments’ that culminated in a ‘case plan’, as well as the system of record keeping that included an online series of handover notes and incident reports kept in the ‘Salvation Army Management Information System’ (‘SAMIS’).[97]
[97]T327-331. See also, T362-363.

Mr Rumble also explained how the notes and records maintained by the Brayton psychotherapist – Jenny McKenzie – would be maintained separately to a resident’s Brayton file.[98]
[98]T332.

In that context, Mr Rumble addressed and explained the contents of –

(a) the plaintiff’s Brayton file, including the records relating to the plaintiff’s MSAs and case plan;[99] and

(b) the psychotherapy file of records relating to the plaintiff evidently kept by Ms McKenzie.[100]

[99]T350-358.

[100]T359-362.

As I have noted, each of the files was received into evidence,[101] but the SAMIS notes relating to the plaintiff had not been able to be located.[102]
[101]Exhibits H and I.
[102]With the possible exception of one SAMIS note that may have been retained on the plaintiff’s psychotherapy file: see, Exhibit I (CB325).

As I have also noted, in cross-examination the plaintiff took issue with some but not all of the contents of her Brayton and psychotherapy files. At various points she referred to the contents of particular records as ‘lies’ and similar. Plainly she disagreed with those contents and, at various points, insinuated that the records were not authentic.

In light of the evidence of Mr Rumble, I do not accept that the records in either file are inauthentic or, for that matter, that any of those records are to be viewed as any less reliable than the contents of such collections of records often received into evidence in such proceedings.

It does not follow, of course, that all of the contents of those records must necessarily be accepted as true and correct. Nor does it follow that those records should be understood to be a complete version of the contemporaneous documentary record relating to the plaintiff during her time at Brayton; after all, the SAMIS notes could not be located.

However, when viewed together with aspects of the other evidence, the contents of some of the documents in the Brayton and psychotherapy files are of real significance. In my view, that is particularly so when more than one record from more than one source on more than one date seems to record a particular aspect of history. In those circumstances, such an aspect of history does seem to me to be more likely than not correct.

Mr Rumble also gave evidence concerning various aerial and other photographs of the buildings at Brayton, including ‘the house’.[103] He gave evidence concerning the taking of those photographs in about 2002/03 and, in broad terms, confirmed that the buildings shown were likely to have been in similar condition in 2004/05.
[103]T320-324. Exhibit C.

In some respects, the plaintiff took issue with those photographs. In particular, she did not accept the photograph that Mr Rumble later confirmed as showing ‘the house’. She said that ‘the house’ was ‘like an old house and it wasn’t that big’.[104]
[104]T202.

I accept the evidence of Mr Rumble concerning the authenticity and broad accuracy of the photographs, including the photograph of ‘the house’.

Witnesses not called: Luke Button and the plaintiff’s current partner

The defendant submits that adverse inferences should be drawn as a consequence of the failure of the plaintiff to call Luke Button as well as her current partner.[105]
[105]T542-544 and T556 and Defendant’s closing submissions, [51].

For its part, the defendant called its solicitor, Dora Cosentino, in order to explain its own failure to call Luke Button. Ms Cosentino explained that –

(a) in about October or November 2022 a private investigator had made contact with Mr Button who had indicated a willingness to speak about the plaintiff’s allegations;

(b) steps were thereafter taken to arrange a conference with Mr Button, but he did not answer calls, texts or emails; and

(c) in May 2023, shortly prior to the commencement of the trial, further steps were taken to locate Mr Button, but they proved fruitless.[106]

[106]T507-508.

I accept that explanation and, consequently, accept that no adverse inference should be drawn in respect of the failure of the defendant to call Mr Button.

That is, however, not the end of the matter, as the defendant seeks that an inference be drawn in respect of the plaintiff’s own failure to call Mr Button.

I have earlier referred to the fact that the plaintiff was self-represented at and leading up to the trial. She was in Queensland, psychiatrically affected and, without intending any disrespect to her at all, plainly personally disorganised.[107]
[107]In its written closing submissions, the defendant described the plaintiff’s life as ‘complex and dysfunctional’ (see, for example, Defendant’s closing submissions, [119]). Without seeking to attribute any personal failing to the plaintiff, I would accept that characterisation. I should say that at another point the defendant’s submissions described the plaintiff as seeking to ‘portray’ herself as ‘despondent’; the insinuation being that her presentation was exaggerated (see, for example, Defendant’s closing submissions, [115]). It will be evident that I do not accept that submission.

Among other things, of course, the plaintiff had also not read the relevant documents assembled by the defendant for the purposes of the trial and, when she appeared at all, seemed to be participating in pre-trial mentions and directions hearings via Zoom using her telephone.

In that context, it became tolerably clear that in respect of the then imminently to be conducted trial –

(a) the plaintiff had not engaged in any sustained or meaningful way with the self-represented litigant liaison staff provided by the Court;

(b) the plaintiff had no or no productive access to a computer and so was very limited in her ability to produce Court or other documents (including subpoenas); and

(c) the plaintiff had not carefully considered or sought advice concerning who, beyond herself, she might need to call to give evidence at the trial.

It was only very shortly before the commencement of the trial that the plaintiff commenced to engage productively with the Court staff. It was essentially via that engagement that –

(a) arrangements ultimately came to be made for the plaintiff to attend a public library in Queensland at which she could access a computer and from which she could and did participate in the hearing;[108] and

(b) it emerged (during the hearing) that, in addition to calling herself to give evidence, the plaintiff would seek to rely upon the expert written reports of Dr Hacker as well as the forensic accountant, Mr Thompson.

[108]In this regard, it is appropriate for me to here acknowledge the very considerable efforts made by the self-represented litigant liaison staff, members of the ‘digital litigation team’ as well as the staff of the public library in Queensland who allowed the plaintiff to use their facilities over many days and without fee. All of those people contributed very significantly to the administration of justice and I am grateful to them for their efforts.

Co-operatively, the defendant agreed that the expert opinion of Mr Thompson could be received into evidence (if the responding opinion of its corresponding witness, Mr Hino, could also be received). However, the defendant insisted that Dr Hacker should be called. In that regard, senior counsel for the defendant emphasised the plaintiff’s ‘onus’,[109] but also indicated that there were matters about which the defendant would seek to cross-examine Dr Hacker.
[109]T191-193.

Generously, Dr Hacker agreed to give evidence via Zoom at very short notice and without insisting upon the formality of a subpoena.

As to the calling of Mr Button, the plaintiff explained as follows –

… I had Luke Button, he was going to be one of my witnesses but he’s not now because he had – he told me, I spoke to him on the phone and he told me that somebody from Minter Ellison or Brayton had gone and spoken to him and now he was not prepared to come and be a witness for me.[110]

[110]T190.

I accept that explanation and note that it is not greatly inconsistent with the import of the relevant evidence given by Ms Cosentino.

On the strength of the plaintiff’s explanation – and certainly in the circumstances to which I have earlier referred – I do not consider it appropriate to draw the adverse inferences invited by the defendant.

For completeness, in respect of Mr Button, I should note that prior to trial the defendant provided a document entitled ‘Defendant’s further witness list’ dated 8 May 2023. I note that Mr Button was there listed among the ‘lay witnesses’ (who also included Mr Nunan, Mr Rumble and Ms Webber).

There is, to say the least, a tension between the provision of such a list in May 2023 and the evidence later given by Ms Cosentino to the effect that contact with Mr Button in October or November 2022 had been essentially fruitless and in May 2023 he could not be located at all.

When the curiosity of the circumstances to which I have referred was raised with senior counsel for the defendant, she submitted that it was ‘only a potential list of witnesses’ and otherwise (again) emphasised that the plaintiff has ‘got the onus’ which, she submitted, ‘doesn’t change’.[111]
[111]T543.

The list to which I have referred was not marked as a list of ‘potential witnesses’, but even if it had been, I gravely doubt that in the circumstances it could have been strictly accurate to describe Mr Button as a ‘potential’ lay witness for the defendant in anything but the most wholly theoretical of senses.

In any event, the provision of such a list to a self-represented and unquestionably psychiatrically compromised litigant immediately prior to trial is, at the very least, apt to engender misapprehension and confusion. It is not a practice that should be encouraged.

More generally, I accept, of course, that the plaintiff bears ‘the onus’. However, as I have explained, the plaintiff adequately explained her failure to call Mr Button and was otherwise in no practical position to subpoena witnesses until she could have access to computer facilities, which was at the commencement of the trial.

Even then, the plaintiff was in no practical position to prepare such subpoenas without assistance and there is and could be no realistic suggestion that the plaintiff was familiar with the reasoning in Jones v Dunkel[112] or that she did or should have discussed that reasoning and the potential for it to be relevant to her case with the self-represented litigant liaison staff of the Court, or anyone else.
[112](1959) 101 CLR 298.

In my view, the matters to which I have referred tend to underline the correctness of the conclusion that no adverse inference should be drawn against the plaintiff for failing to call Mr Button.

A further adverse inference was invited in respect of the failure of the plaintiff to call her current partner. That submission was advanced in respect of the issue of damages, which it is ultimately unnecessary for me to address and determine. In any event, for many of the reasons to which I have already referred, I do not consider it to be appropriate to draw the further inference sought.

E. Was the plaintiff groomed and abused by Mr Nunan?

I have earlier referred to much of the plaintiff’s oral evidence directed to her account of having been groomed and abused by Mr Nunan.

As I have indicated, it was clear that the plaintiff very sincerely believes that account. The sincerity of that belief had an undeniable force, and was palpable even when communicated via Zoom. Nonetheless, as I have also indicated, the present issue cannot be determined by any simple acceptance or rejection of that account.

That said, the force in the plaintiff’s account was assisted by an aspect of the evidence of Dr Hacker, to which I have earlier referred. In further cross examination by senior counsel for the defendant, Dr Hacker gave the following evidence –

So could it be in this case that Ms Double was assaulted by someone but had that place and person wrong?---That’s most unlikely. It is usually - I mean, from what you have indicated today Ms Double was not admitted to Brayton when she was 14, she was 17 and a half.
Yes?---But the fact that this particular - I mean, you know, she’s remembered that - if she was confabulating why would she not confabulate about all the other assaults that she suffered which is unlikely. So it is not likely that - I cannot say for - you know, it is unlikely that she was not assaulted by the people whom she claims she was assaulted by.[113]

[113]T310.

Dr Hacker thereafter confirmed that, of course, ‘people can lie’, and she also confirmed that the effect of abuse can be that ‘things’ before, during and after incidents of abuse can be forgotten.[114]
[114]T310.

In this context, I have noted the evidence to the effect that the plaintiff’s state of consciousness was affected during at least part of the period that she was at Brayton, and that she has not returned since leaving there nearly 20 years ago (and at a time at which, on any view, she was still in her adolescence).

Further, since that time, she has on any view endured sustained and horrific personal trauma which Dr Hacker explained as being capable of having a significant and deleterious impact upon memory. As I have noted, the plaintiff spoke freely of her problems with memory, particularly as to dates and times.

In addition, as I have indicated, it was evident that the plaintiff had not refreshed her memory by reference to many, if any, of the relevant documents assembled in the court book for trial.

In that setting, it was notable and of some general support to the plaintiff’s claims that she retained some evidently accurate or unchallenged recollections of her time at Brayton. In particular –

(a) that the buildings at Brayton were relevantly comprised of a recreation room, a six room dormitory and ‘the house’;[115]
[115]T13-14 and T167.

(b) Mr Rumble was in charge, and there were other employees including Ms Webber and Mr Nunan;[116]
[116]T13 and T22.

(c) staff handover was at about 3:30 in the afternoon;[117]
[117]T68.

(d) Mr Nunan was the plaintiff’s case worker;[118]
[118]T13.

(e) the plaintiff met with Mr Nunan on several occasions[119] and also saw the Brayton psychotherapist;[120]
[119]T148 and T155-156.
[120]T112.

(f) the plaintiff was placed on an anti-depressant – Efexor – during the period in which she was at Brayton;[121]
[121]T19. See also, Exhibit H (CB241 and CB295-302) and Exhibit I (CB305-306, CB310, CB319 and CB330-334).

(g) there was a minibus at Brayton (which was manual);[122]
[122]T56-57.

(h) there were other residents at Brayton, including Luke Button;[123]
[123]T14 and T180.

(i) the plaintiff’s room was in the dormitory building;[124]
[124]T13.

(j) the dormitory rooms had alarms;[125]
[125]T168. Cf, T325-326 (Mr Rumble).

(k) the plaintiff did not attend school nor work during her time at Brayton;[126]

(l) ‘the house’ had a kitchen, bedrooms and a loungeroom with a gas wall heater;[127] and

(m) the front door to ‘the house’ had a lock.[128]

[126]T22, T128 and T169.

[127]T14-15.

[128]T67.

Further, aspects of the evidence of Mr Rumble, Ms Webber and Mr Nunan revealed other parts of the plaintiff’s recollections to have had varying degrees of plausibility. In particular –

(a) on average, Mr Rumble was at Brayton only three days a week – and so it is possible that the plaintiff rarely if ever saw him;[129]
[129]T316-318 (Mr Rumble).

(b) it might ‘technically’ be said that there was a chaplain who came to Brayton (a Salvation Army Officer; not any employee of Brayton, and not Mr Nunan);[130]
[130]T320 (Mr Rumble). Compare, T254 (Ms Webber) and T405 (Mr Nunan).

(c) the plaintiff may well have had contact with a church in Shepparton referred to by her as the ‘Shepparton City Church’;[131]
[131]T407-408 (Mr Nunan) and Exhibit I (CB315: ‘Cara became Christian @ Shep city w S.OB’).

(d) Mr Nunan could have encouraged the plaintiff to pursue Christianity and also could have discussed religion with her – which may have included reference to Satan;[132]
[132]T476 and T495 (Mr Nunan).

(e) there was a Christian band called the ‘Planetshakers’ – although both Mr Rumble and Mr Nunan said that they had never been to a ‘Planetshakers’ concert;[133]
[133]T348-349 (Mr Rumble) and T446-447 (Mr Nunan).

(f) there were instances in which ‘the house’ was occupied by ‘younger children’;[134]
[134]T312-313 and T322 (Mr Rumble). See also, T394 (Mr Nunan).

(g) Brayton residents performed chores and, at least at some points, there was a ‘roster system’;[135]
[135]T348 and T368 (Mr Rumble). Cf., T262-264 (Ms Webber) and T390-391 and T393 (Mr Nunan).

(h) it emerged as conceivable that the plaintiff could have been performing chores in ‘the house’ – although Mr Rumble thought that it was ‘highly unusual that somebody living in the units would be made to go and vacuum the house’[136] and Mr Nunan said that it did not ‘seem likely’ and would not have involved making beds;[137]
[136]T348 (Mr Rumble).
[137]T394-395 and T495-496 (Mr Nunan).

(i) generally speaking, ‘the house’ would be vacant during the day and if the plaintiff was cleaning in ‘the house’ at that time it was possible that she was the only person there;[138]
[138]T497-498 (Mr Nunan).

(j) it was also possible for Mr Nunan to have been in ‘the house’ at that time;[139]
[139]T498 (Mr Nunan).

(k) the plaintiff could well have attended the Friar Street Café with Mr Nunan;[140]
[140]T444-446 (Mr Nunan). See also, T499 (Mr Nunan).

(l) it emerged as remotely conceivable that the plaintiff could have had a driving lesson with Mr Nunan in the Brayton minibus (although he did not think that it sounded like something that would have happened);[141]
[141]T501-503 (Mr Nunan). Cf., T400-401 (Mr Nunan).

(m) the plaintiff visited the home of Ms Webber (with Luke Button) – most likely while the plaintiff was resident at Brayton, although Ms Webber could not say for certain;[142]

(n) at least for a period there seems to have been a written contract to the effect that the plaintiff would not go out without the approval of one of the Brayton workers;[143] and

(o) there were references to the risk of suicide and at least one instance of self-harm involving the plaintiff during her time at Brayton.[144]

[142]T267, T272-273 and T275 (Ms Webber).

[143]T469-473 (Mr Nunan). Cf., Exhibit H (CB270).

[144]T472-473 (Mr Nunan). Cf., Exhibit H (particularly, CB234, CB268-269 and CB271-272) and Exhibit I (particularly, CB310, CB312, CB315, CB319, CB322 and CB325-326).

I should add that the impression conveyed by Mr Nunan’s evidence was that, as the plaintiff’s case worker, and in circumstances in which the plaintiff was neither working nor attending school during the period in which she was resident at Brayton, there must have been regular and close contact between them of both a formal and informal character.[145]
[145]As to informal contact, Mr Nunan said ‘I’m having day to day contact with Cara as part of my role’: T435.

The formal contact included the second MSA meeting,[146] which is likely to have taken place a matter of weeks after the plaintiff arrived at Brayton.[147] In the course of that assessment, the plaintiff is recorded as having disclosed to Mr Nunan a sequence of personal and intimate details.[148]
[146]Exhibit H (CB235-237).
[147]T432.
[148]Cf., T474-475.

Notwithstanding all of the above, the defendant submitted that there was ‘nothing’ about Mr Nunan’s role that gave him any ‘authority, power, trust, control or the ability to achieve intimacy’ with the plaintiff.[149] It will be evident that I cannot accept that submission.
[149]Defendant’s closing written submissions, [74].

That said, beyond the features to which I have referred, the plaintiff’s account comprised a gravely sinister narrative in which, in substance –

(a) she came to Brayton in 2002 at the age of 15 and at the behest of ‘the department’;

(b) her freedom was curtailed, her money was held by the Brayton staff and the residents were punished if they did not do their chores;

(c) three weeks after her arrival the plaintiff was given Efexor by Mr Nunan ‘without seeing a doctor’ and the medication gave her ‘really, really bad hallucinations’;[150]
[150]T19-20.

(d) at the same time, Mr Nunan commenced to prey on her via grooming, and a week later commenced upon a series of rapes in the course of which he sought variously to soothe her by referring to scripture, God’s will, how she should be with her future husband and also asserted that she was ‘a child of Satan’ and ‘in the devil’s playground’ until she was baptised;[151]
[151]T14-20.

(e) the events concerned included an ‘exorcism’ performed in the plaintiff’s dormitory room, before or during which she was hallucinating (and seeing blood running down the walls of her room), and Mr Nunan and religious figures were present, following which she was raped by Mr Nunan;[152]
[152]T82-83.

(f) the rapes ceased when Mr Nunan became concerned that she might have had her period and might get pregnant, but other molestation continued after the rapes ceased;[153]

(g) about six months into her stay at Brayton, the plaintiff became aware that what had been happening with Mr Nunan was ‘wrong’, following which she became distressed, engaged in self-harm (requiring 14 stitches in her left wrist), attempted suicide by drinking bleach or ammonia, became ‘really, really depressed and withdrawn’ and began to take ‘respite’ at the home of Ms Webber;[154] and

(h) the plaintiff departed Brayton about a year and a half later and her life thereafter was ruined because of the abuse suffered at the hands of Mr Nunan.[155]

[153]T18-19. Cf., T49-50 and T104.

[154]T20-22.

[155]T23-25.

Even though, as I have noted, some more general details in the plaintiff’s account emerged as accurate or vaguely plausible, it does not follow that the evidence of Mr Rumble, Ms Webber and Mr Nunan (and the associated contemporaneous records) did not stand firmly contrary to the more sinister elements of the plaintiff’s account. In particular –

(a) as I have indicated, Mr Nunan was taken to the plaintiff’s claims in some detail and rejected them;[156]
[156]T447-451.

(b) in addition, Mr Nunan confirmed that there had never been any other allegation against him of grooming, abuse, inappropriate touching or sexual advances;[157]
[157]T419.

(c) the emotional force in the relevant evidence of Mr Nunan was at least as palpable as that of the plaintiff when detailing her own account;

(d) Mr Rumble recalled no complaints at Brayton about ‘sexual allegations’;[158]
[158]T364.

(e) Mr Rumble recalled Mr Nunan and confirmed that he had never had any performance issues and that no complaints had ever been made about him;[159]
[159]T368.

(f) Mr Rumble considered Mr Nunan ‘personally’ to have been ‘beyond reproach’;[160]
[160]T367.

(g) Ms Webber confirmed that the workers at Brayton were required to ‘monitor’ the young people and, consequently, she may well have asked the plaintiff if she was ‘okay’, but she had never had any suspicion that the plaintiff was being sexually abused;[161]
[161]T268.

(h) Ms Webber had no knowledge of any incident of sexual abuse until she was contacted about the present claim;[162] and
[162]T274.

(i) Ms Webber recalled Mr Nunan, was aware of no complaints ever being made about him, and described him as follows –

Damien always was extremely professional, in my opinion. He was really, really helpful particularly when I first started getting to know the routines and how things worked. He always presented as having a real genuine concern for the residents and being very thorough and diligent in his dealings with them.[163]

[163]T269.

In that context, as I have noted, the plaintiff maintained that she came to Brayton in 2002 at the age of 15 via the intervention of ‘the department’ and lived there for about two years.[164] She also insisted that she had been mandated to reside at Brayton.[165]
[164]T12. Cf., T140-148.
[165]T137.

The records relating to the plaintiff’s ‘intake’ at Brayton are all dated 16 September 2004.[166] Some of those records are apparently signed by the plaintiff under the name ‘Cara Dubowik’. At one point, the plaintiff confirmed that she had been known by that name; and that ‘Dubowik’ was her stepfather’s surname.[167]
[166]Exhibit H (CB219-221, CB224-227 and CB229).
[167]T41.

In any event, so much is clear from the photograph taped to the cover of the plaintiff’s Brayton file; in which the words ‘Cara Dubowik D.O.B 20/2/87’ appear handwritten on a whiteboard behind the plaintiff and ‘Cara Dubowik 17 yrs. D.O.B 20/02/87’ is handwritten on the photograph.[168] The plaintiff gave evidence of her date of birth.[169] It was also quite apparent that the photograph was of her at the relevant time.
[168]Exhibit H (CB217).
[169]T10 and T142.

As I have noted, the plaintiff later expressed disagreement with aspects of ‘puttage’ in respect of the anticipated evidence of the defendant’s lay witnesses as well as with parts and in some cases the whole of certain contemporaneous records.[170] In that context, the plaintiff denied that the signatures in the records were hers and said that she did not go by the name Dubowik.[171] I do not accept that evidence.
[170]T142-145 and T205-207.
[171]T165 and T206.

[276]Exhibit I (CB325).

(b) Ms McKenzie’s letter to the unidentified general practitioner of 10 December 2004 referred to an ‘escalation in the desire to self-harm, specifically cutting’, but said that there had been ‘no visible evidence of self-harming’ in the previous 10 days;[277]

(c) Ms McKenzie’s summary report – following her eight consultations with the plaintiff and after the point at which the plaintiff had left Brayton – again refers to ‘some superficial cutting’, but includes no reference to any suicide attempt involving ingestion of ammonia or bleach or cutting requiring 14 stitches;[278] and

(d) none of the references in the various available records to suicidal ideation and self-harm in respect of the period in which the plaintiff was residing at Brayton suggest that she suffered any physical injuries that required her to be hospitalised or treated by a medical practitioner.

[277]Exhibit I (CB305).

[278]Exhibit I (CB310-311).

In the circumstances, on the balance of the evidence –

(a) I cannot accept the plaintiff’s various denials of prior suicidal ideation and attempts, self-harming and drug and alcohol use;

(b) in that regard, I accept that prior to her residency at Brayton the plaintiff suffered suicidal ideation, engaged in self-harm and used drugs and alcohol;

(c) I also accept that at and shortly after the time of her intake at Brayton the plaintiff was at least talking about suicidal ideation and self-harm;

(d) I cannot accept the plaintiff’s evidence of living in a unit in Mooroopna and undertaking a chef’s apprenticeship at La Porchetta after her residency at Brayton – it seems to me to be much more likely that those events occurred prior to her residency at Brayton;

(e) it is, in my view, most unlikely that during the period of her residency at Brayton the plaintiff attempted suicide by ingesting ammonia or bleach or undertook self-harm that required the insertion of 14 stitches into her left wrist;

(f) as I have noted, I also do not accept that during the course of her residency at Brayton the plaintiff slumped into a significant depression that required her to undertake periods of ‘respite’ at the home of Ms Webber; and

(g) although it is unnecessary to draw any final conclusion, it would be respectable to surmise that the plaintiff’s residency at Brayton constituted a relatively brief period of months in which her generally self-destructive course was either paused or slowed until its resumption in full after her departure.

That brings me to the final and presently determinative aspect of the plaintiff’s account, namely the alleged ‘grooming’, touching, five alleged rapes and subsequent ‘molestation’.

In respect of the latter, I have earlier rejected the premise asserted by the plaintiff for Mr Nunan’s cessation of the rapes and move to ‘molestation’ and do not accept that the subsequent ‘molestation’ occurred.

As to the alleged ‘grooming’, the plaintiff initially said that the ‘blurred’ conversations with Mr Nunan included ‘[c]onversations around my period’.[279] However, the plaintiff later clarified that alleged aspect as having occurred after the rapes, and having precipitated their cessation.[280]
[279]T14.
[280]T48-51.

The plaintiff said later that the ‘grooming’ had included the incident in which Mr Nunan was said to have given her a driving lesson in the minibus and dropped his glasses following a ‘bunny hop’ and brushed against her lower body when picking them up.[281]
[281]T55-57.

I have earlier referred to the evidence relating to the driving lesson, and although it might conceivably have been possible, I have real doubt that it occurred. Even if it did occur, the plaintiff seemed to accept that if Mr Nunan brushed against her lower body it could have been accidental or, at least, without any sinister intention.[282] The latter does seem to me to be much more likely, even if the incident occurred.
[282]T57.

In that general connection, the plaintiff also referred to a trip (in the minibus) to a ‘Planetshakers’ concert.[283] She said that Mr Rumble was there, as well as Mr Nunan. Even though it is evident that the ‘Planetshakers’ exist, and it is broadly conceivable that the plaintiff could have attended such a concert, both Mr Rumble and Mr Nunan denied ever having done so and I accept their evidence.[284] If the plaintiff attended a ‘Planetshakers’ concert, it was not with Mr Rumble and Mr Nunan.
[283]T54-55.
[284]T348-349 (Mr Rumble) and T446-447 (Mr Nunan).

Otherwise, the ‘grooming’ was said to involve conversations relating to matters such as ‘God’s will’ and how the plaintiff should be towards her husband when she married.[285] One such discussion was said to have occurred at Friar Street Café.
[285]T14, T16 and T51.

Mr Nunan gave evidence that it would not have been unusual to take a Brayton resident for coffee or similar if a worker was in Shepparton with the resident.[286] Albeit that the plaintiff denied the suggestion when it was put to her in evidence,[287] I accept the evidence of Mr Nunan that such a step would not have been unusual.
[286]T444-446.
[287]T51-53.

As to the content of the ‘blurred’ conversations, I have earlier accepted that Mr Nunan could have discussed religion and even Satan with the plaintiff. However, the nature of the ‘grooming’ conversations to which the plaintiff referred might be thought to have gone some distance beyond that, and to have had a more sinister and sexual intention or objective. That was certainly the plaintiff’s suggestion as to the intention and ultimate effect of the ‘blurred’ conversations.

I have difficulty accepting that any conversations of that kind occurred. Mr Nunan denied them, and they do seem to me to be out of keeping with my assessment of both him and the sincerity and quality of his religious beliefs.

In any event, the point about the ‘blurred’ conversations – in the plaintiff’s account – seems to have been that they led to the subsequent touching, rapes and then ‘molestation’. On her account, as I understood it, the ‘grooming’ conversations were not relied upon as having caused harm in any freestanding sort of way.

It follows that even if any such conversations did occur (about which I am very doubtful), they have no potency in the case without the allied and later occurrence of the alleged touching, rapes and ‘molestation’ that, as I understood it, were at the heart of what the plaintiff considered to have subsequently ‘ruined’ her life.

That brings me to the alleged sexual abuse by Mr Nunan, comprising touching leading to five rapes.

In that regard, the touching was said to have been on the occasion of the rapes, and to have precipitated them.

As to the rapes –

(a) none were said to have been violent or forceful – indeed, the plaintiff said that Mr Nunan was ‘trying to be soothing’ and telling her that she could feel safe;[288]

(b) four were said to have taken place in ‘the house’, on a weekday and in the ‘same way’ and with the ‘same lead up every time’;[289] and

(c) the fifth was said to have occurred in the plaintiff’s dormitory room after the ‘exorcism’.[290]

[288]T16.

[289]T15 and T68.

[290]See generally, T65, T70 and T81-82.

In respect of the latter, I have already indicated that I do not accept that Mr Nunan and the pastors were involved in an ‘exorcism’ in the plaintiff’s dormitory room.

As I have earlier noted, Mr Nunan gave evidence denying all relevant aspects of alleged abuse, and Mr Rumble and Ms Webber gave evidence that might be described as generally supportive.

However, counsel for the defendant also emphasised the differences between the plaintiff’s ultimate account at trial, and other accounts given or evidently sourced from the plaintiff. In that regard –

(a) the plaintiff’s pleading dated 28 June 2021 particularised the alleged rapes relevantly as follows –

Damian raped the plaintiff on four occasions. On one occasion the rape occurred in the section of Brayton commonly known as ‘the house’. … The other occasions occurred in her bedroom.[291]
[291]The particulars were amended slightly in the Amended Statement of Claim filed on 2 June 2022, although no change was made to any of the text quoted.

(b) in a letter of instructions to Dr Hacker dated 12 November 2020, the plaintiff’s then solicitors stated –

Cara instructs that Damian sexually abused her in the house. Cara was allocated the chore of vacuuming the house and believes Damian sought Cara out when he knew she was rostered on to be in there.
Cara instructs that Damian raped her with his penis on approximately three occasions that she can remember. Cara instructs that these rapes as [sic] “horrific” and caused her to bleed.
During the rapes, Cara instructs that she wanted to scream but Damian would place his hand over her mouth and tell her to shut her mouth. Cara instructs that Damian also told her that his sexual abuse of her was God’s work and that she would go to heaven for it. Cara recalls thinking this was normal.[292]
[292]Exhibit E. The plaintiff later confirmed in evidence that Mr Nunan ‘never put his hand over my mouth or anything like that, I don’t know where it’s come from’ and ‘he did not do that’: T212-213.

(c) in evidence, Dr Hacker was taken to her notes of her two hour consultation with the plaintiff, and confirmed that the plaintiff had given a history of rapes ‘Times 4’;[293]
[293]T285.

(d) Dr Hacker also confirmed having received a history from the plaintiff relevant to key elements of the following passages in her report dated 11 December 2020 –

Ms Double said that she was sexually assaulted by Damian, the Chaplain at Brayton. She said that he was “a favourite worker” and they got on well.
Ms Double said that on the first occasion that the sexual assault occurred she was cleaning in the big house on a weekend when he was the only worker present. She said that he held her wrists above her head with one hand and put his other hand over her mouth. She said that he told her that “God wants you to do this” and indirectly threatened her by telling her “that people who go to heaven do what they are told”.
Ms Double said that after the first rape “I gave up”. She said that she was raped on four occasions, the first of which occurred in the house and the remaining rapes occurred in her bedroom in the dormitory section where she slept alone.[294]
[294]T288-289 and Exhibit 2 (CB354). The plaintiff later confirmed in evidence that she did not tell Dr Hacker that Mr Nunan held her wrists above her head with one hand and put his other hand over her mouth: T215.

(e) a letter from the plaintiff’s then solicitors to the solicitors for the defendant dated 20 January 2022 recorded the plaintiff’s instructions as follows –

The first instance of abuse occurred that [sic: at] “the house” when the Plaintiff was there to clean it.
The remaining assaults occurred in the Plaintiff’s bedroom in the dormitory section.[295]
[295]Exhibit A.

(f) in evidence in chief, the plaintiff said that rapes had taken place ‘at least four times, I’m going to say five times’, and that ‘every time it happened, it happened in the house’;[296]

(g) shortly thereafter, the plaintiff referred to the hallucinations involving ‘blood running down my walls and things like that’, but did not then say that there had been any rape associated with those events;[297] and

(h) later, in cross-examination, the plaintiff adopted the version of five rapes to which I have earlier referred – the last of which was said to have occurred in her dormitory bedroom after the ‘exorcism’.[298]

[296]T18.

[297]T19.

[298]See, T70-72 and T82-83.

In respect of the elaboration upon the fifth rape in the course of cross-examination, the plaintiff sought to explain that –

I’m actually recollecting and going back and now I’m getting, you know, flashbacks of it, so I’m remembering more now, yeah.[299]

[299]T70. See also, T71-72.

I should add that the plaintiff also said that she had reported aspects of the alleged abuse in ‘conversations with professionals’. When asked about that, she said that it had been ‘brought up’ by her in 2007 at the Goulburn Valley Centre against Sexual Assault (‘CASA’).[300] She said that she did not go into ‘full detail’, but it had been ‘mentioned’.[301]
[300]T64-65.
[301]T170.

When later taken to police and CASA records from 2007, and the fact that no mention is there made of any abuse by Mr Nunan as opposed to abuse by a different offender in respect of a later assault, the plaintiff disagreed that she had reported only the later assault.[302]
[302]T219-220. Cf., Exhibit F and Exhibit G.

It should be noted that when variously taken to the matters to which I have referred, the plaintiff essentially said that her account at trial was correct, and that the relevant legal practitioner or doctor (including Dr Hacker) must have erred.

Mistakes can, of course, be made when histories are taken, as well as when evidence is given. I have also earlier referred to the plaintiff’s evidence concerning the effect of trauma,[303] and that of Dr Hacker, as well as some of the cautionary observations in the authorities. It also seems to be the position that for a significant period of time the events concerned were out of the plaintiff’s mind[304] and, as I have earlier mentioned, the plaintiff seems to have been affected by some form of altered state of consciousness during a significant part of the period concerned.
[303]In that regard, the plaintiff said, among other things, ‘I have severe trauma related … memory loss’ (T126) and, at one point, when pressed about her recollections by senior counsel for the defendant, exclaimed ‘I’m sorry, I’m injured’ (T85).
[304]T33.

In that general context, it seems to me to be of some significance that in recent times and since the plaintiff has started to report the alleged events –

(a) several different versions have been given at different times and to different professionals;

(b) at least one of those accounts involves force and a degree of violence – in the sense of the plaintiff’s wrists being held over her head and Mr Nunan’s hand being placed over her mouth (which account was given to Dr Hacker, whom I considered to be both an impressive witness and broadly reliable);

(c) none of those versions corresponds with the account given by the plaintiff at trial; and

(d) it is unlikely that on all of those occasions all of the professionals involved erred in failing accurately to record the plaintiff’s instructions or account.

In addition to the above, and, in my view even more significantly, the plaintiff was taken to her recollections concerning Mr Nunan’s age and personal and other characteristics.

In that regard, she maintained that Mr Nunan had been the chaplain at Brayton, even though that allegation had much earlier been abandoned in her amended pleading.[305]
[305]T176. See also, in opening, at T5.

Further, when asked about Mr Nunan’s age at the relevant time, she said that he had been in his ‘mid 30s, or early 30s’.[306] Shortly thereafter, when told that Mr Nunan was ‘aged 22’ at what must have been the relevant time, the plaintiff said ‘I could be wrong about that’.[307]
[306]T175.
[307]T176.

Moreover, it became evident that the plaintiff had been interrogated about various of Mr Nunan’s personal characteristics.[308]
[308]Exhibit B.

In that regard, some of her answers might be thought to have been arguably correct (particularly in respect of his blue eyes, height and maybe in respect of his hair colour – although Mr Nunan’s hair was probably much more ‘dull’ than ‘sandy/dusty’[309]). The plaintiff had also deposed that Mr Nunan ‘occasionally’ wore glasses; and Mr Nunan confirmed that, at the time, he always wore glasses.[310]
[309]I should say that Mr Nunan described his hair as having been ‘dark brown’ (T451), which is more consistent with the wedding photographs (Exhibit J, CB342 and CB345), than the ‘sandy/dusty coloured blonde that looked dull’ to which the plaintiff had deposed (Exhibit B).
[310]T401.

That said, the plaintiff also deposed that –

(a) Mr Nunan had been ‘balding on the top’;

(b) Mr Nunan had a ‘tattoo on his right arm below his shoulder’ that ‘looked like a navy-related tattoo’; and

(c) Mr Nunan had an ‘issue with his bottom lip’ that reminded her of ‘a cleft pallet or an underbite and made him speak differently like he had a lisp’.[311]

[311]Exhibit B.

Mr Nunan later gave evidence that he had not been balding at the time, and also gave evidence in respect of the wedding photographs to which I have earlier referred.[312]
[312]T451-453.

Those photographs might be said to show that Mr Nunan then had both short hair and something of a ‘high forehead’, but I do not think that they could reasonably be said to show him to have been ‘balding on the top’.[313]
[313]Exhibit J (CB342 and CB345).

Although the plaintiff took issue with the authenticity of the photographs, and gave evidence that Mr Nunan had ‘hair missing here when I was there’,[314] I do not accept that Mr Nunan was ‘balding on the top’ or had ‘hair missing’ on the top of his head in late 2004 and early 2005.
[314]T175. See also, T173.

Similarly, Mr Nunan denied that he had ever had a tattoo,[315] and photographs of Mr Nunan’s bare arms were received into evidence.[316]
[315]T453.
[316]Exhibit J (CB343-344).

In that connection, the plaintiff gave evidence that –

(a) ‘I thought I remembered that but it might have been a dream’ and ‘everything else is true and correct, and I believed that’s what it was until I was told that’s not the case’;

(b) she nonetheless said that she recalls and therefore still ‘firmly believe[s]’ that Mr Nunan has a tattoo; and

(c) consequently, in respect of the anticipated evidence of Mr Nunan to the effect that he has never had a tattoo, the plaintiff did not accept that he would be telling the truth.[317]

[317]T173-174.

I accept the evidence that Mr Nunan has no such tattoo.

Finally, in respect of the alleged bottom lip, underbite and lisp, the plaintiff gave evidence that –

(a) Mr Nunan speaks ‘somewhat’ differently;

(b) his ‘bottom lip on the side hangs a little lower’;

(c) there was ‘a scar or something here that was unusual about his lip’;

(d) ‘he talks uneven with his mouth and when he smiles you can clearly see that this part of his mouth will drop down’; and

(e) if Mr Nunan gave evidence that he did not have a problem with his bottom lip, ‘that’s a lie’.[318]

[318]T174-175.

Mr Nunan gave the anticipated evidence.[319] There was also nothing in his presentation that was indicative of speaking differently or unevenly, anything unusual about his lip or any lisp. I reject the evidence of the plaintiff to that general effect.
[319]T453.

In the circumstances, I have referred to the relevant aspects of the evidence of the plaintiff and others – particularly that of Dr Hacker.

As I have indicated, a particular part of the opinion evidence of Dr Hacker is of real significance, and I must necessarily afford it weight.

That said, Dr Hacker’s evidence seemed to be influenced in a significant way by her assumption that the plaintiff had been a ward of the State,[320] which I have not accepted, and she also confirmed that she had not been provided with the files from Brayton, which, it will be apparent, in my view bear significantly upon whether the sinister aspects of the plaintiff’s account can be accepted.[321]
[320]See, for example, T291-293 and T305-306.
[321]T290.

It will also be apparent that the evidence of Ms Webber, Mr Rumble and Mr Nunan is independently of significance and stands firmly against the relevant parts of the plaintiff’s account. Dr Hacker also did not have access to that resource when formulating and expressing her opinion.

Necessarily taking account of the above, it will nonetheless be evident that the balance of the evidence is tellingly against the plaintiff’s sinister account of events in which she was abused by Mr Nunan.

In that regard –

(a) the plaintiff’s evidence is plainly affected by the lengthy passage of time, having forgotten the events seemingly for a lengthy period;

(b) the plaintiff’s evidence is also affected by prior and subsequent trauma of a serious and sustained kind as well as her having suffered some form of altered consciousness during a significant part of the period in which the relevant events are said to have occurred;

(c) although some general aspects of the plaintiff’s account can be accepted as either accurate or plausible, a detailed examination of the evidence reveals practically all of the sinister aspects of the plaintiff’s account to be against the weight of the evidence and therefore as being unable to be accepted;

(d) in that connection, the evidence suggests that many of the plaintiff’s recollections of times and dates are wrong; but also, and significantly, that parts of her evidence are directed to a range of things that did not happen at the time now claimed (for example, the subsequent unit in Mooroopna and apprenticeship at La Porchetta) as well as a range of denials in respect of things that did happen (for example, the prior rape, pregnancy and abortion and the signatures on the various Brayton documents);

(e) further, the evidence of the lay witnesses called by the defendant stands firmly against the plaintiff’s account;

(f) since she has started to report the central events, the plaintiff’s account of those events has varied in composition, and none of those versions is truly comparable to the account that she gave at trial (in anything but the most general of ways); and

(g) the plaintiff incorrectly recalls significant aspects of Mr Nunan’s personal presentation, in circumstances that seem to me to be suggestive of the intervention of both unconsciousness (‘it might have been a dream’) or altered consciousness such as to raise the significant prospect that the relevant recollections of the plaintiff are quite faulty.

As I have indicated, as a matter of statute and binding authority, I am required to be satisfied that the plaintiff has proved her case on the balance of probabilities. In that regard –

(a) I am required to take into account, among other things, the gravity of the matters she alleges; and

(b) I must feel an ‘actual persuasion’ as to the occurrence of those matters before they can be accepted to be proved.

In the present instance, I have no such feeling of persuasion, and cannot be satisfied of the occurrence of the alleged events of grooming and abuse.

In the circumstances, on the essential issue from which the determination of all other issues in the proceeding must follow, the plaintiff’s claim must fail.

F. Conclusion

It does not seem to me to be either productive or desirable to address any of the further issues presented. All of those issues are – in one way or another – premised in an account of events about which I have been unable to feel any actual persuasion.

In the circumstances, it is sufficient simply to say that for the reasons which I have endeavoured to explain in some detail, the proceeding must be dismissed.

[2023] VSC 452

7 August 2023