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DP (a pseudonym) v Bishop Bird (Ruling)

DP (a pseudonym) v Bishop Bird (Ruling)

Case [2021] VSC 453 2 August 2021

Admissibility of Evidence

Tendency Evidence

Unfair Prejudice

Evidence Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2020 01541

DP (A PSEUDONYM)	Plaintiff
v
BISHOP PAUL BERNARD BIRD	Defendant

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	27, 28 July 2021
DATE OF RULING:	2 August 2021
CASE MAY BE CITED AS:	DP (a pseudonym) v Bishop Bird
MEDIUM NEUTRAL CITATION:	[2021] VSC 453

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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Admissibility of tendency evidence – Whether admitting tendency evidence would cause unfair prejudice to the defendant – Whether admitting tendency evidence would cause undue waste of time – Plaintiff entitled to rely on allegations of nine other witnesses as tendency evidence – Conduct evinced by witness statements sufficiently specific and sufficiently similar to constitute evidence of a tendency – Any unfairness occasioned to defendant by delay between conduct alleged and plaintiff’s claim diminished by defendant’s knowledge of relevant person’s other conduct – Hughes v The Queen (2017) 263 CLR 338 – R v Bauer (a pseudonym) (2018) 266 CLR 56 – McPhillamy v The Queen (2018) 92 ALJR 1045 – Grant v Bird [2021] VSC 380 - Longman v The Queen (1989) 168 CLR 79 – Evidence Act 2008 ss 97, 135–6, 192.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr G Boas with Dr E Kelly, of counsel	Ken Cush & Associates
For the Defendant	Ms R Annesley QC with Ms T Skvortsova, of counsel	Colin Biggers and Paisley Lawyers

HIS HONOUR:

DP[1] alleges that in 1971, when he was five or six years of age, he was assaulted by a Catholic priest, Father Bryan Coffey, at his parents’ home at Port Fairy.
[1]The plaintiff is referred to by a pseudonym pursuant to an order of Irving JR made on 21 April 2021.

Putting aside the legal niceties, DP in a civil claim sues the Diocese of Ballarat through the current Bishop, Paul Bird, the named defendant.[2] DP asserts that the Diocese is vicariously liable for the actions of Father Coffey; additionally, he says that it has a direct liability for Father Coffey by reason of the Diocese’s (and the relevant Bishop’s) authority and control over the conduct of Catholic priests serving in the Western District of Victoria.
[2]The exact legal identity and potential legal liability of the defendant is governed by the provisions of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. For the purpose of this ruling, this does not need to be explored further and I have referred to the defendant as ‘the Diocese’.

This ruling concerns the admissibility of tendency evidence from nine witnesses who also make allegations about Father Coffey’s conduct in the 1960s and 70s. This body of evidence is sought to be adduced by DP under s 97 of the Evidence Act2008 (the ‘Act’).

For its part, the Diocese does not admit that Father Coffey assaulted DP and denies that it has any liability for the actions of Father Coffey (either vicariously or directly).

It…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading DP (a pseudonym) v Bishop Bird (Ruling)

Details

AGLC: DP (a pseudonym) v Bishop Bird (Ruling) [2021] VSC 453
Case: [2021] VSC 453
Decision Date: 2 August 2021

CaseChat Overview and Summary

In the case of DP (a pseudonym) v Bishop Bird (Ruling), the dispute involved the admissibility of tendency evidence in a civil case, specifically whether admitting such evidence would cause unfair prejudice to the defendant. The matter was heard by the Supreme Court of Victoria. The plaintiff sought to rely on allegations made by nine other witnesses, claiming these allegations constituted evidence of a tendency that the defendant had engaged in similar conduct.

The primary legal issue before the court was whether the tendency evidence proposed by the plaintiff should be admitted, and if so, whether such admission would cause undue prejudice or waste of time. The court had to consider the relevance and probative value of the tendency evidence against the potential for unfair prejudice and the efficiency of the proceedings. The court referenced several precedents to guide its decision, including Hughes v The Queen, R v Bauer, McPhillamy v The Queen, Grant v Bird, and Longman v The Queen.

The court determined that the conduct evinced by the witness statements was sufficiently specific and similar to constitute evidence of a tendency. It found that any unfairness to the defendant caused by the delay between the alleged conduct and the plaintiff’s claim was diminished by the defendant’s knowledge of the relevant person’s other conduct. The court concluded that the tendency evidence should be admitted as it was relevant and probative, and any prejudice to the defendant was not of such a nature as to render the trial unfair. The court also found that the probative value of the evidence outweighed any potential for waste of time.

The court's final orders included the admission of the tendency evidence provided by the nine other witnesses, allowing the plaintiff to rely on this evidence in the proceedings. The court emphasised the importance of balancing the probative value of the evidence against the potential for unfair prejudice, and found that in this case, the evidence was admissible.

Orders