DP (a pseudonym) v Bishop Bird (Ruling No 2)
[2021] VSC 540
•31 August 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
INSTITUTIONAL LIABILITY LIST
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, 2, 3, 4, 5, 6, 9, 13 August 2021 |
DATE OF RULING: | 31 August 2021 |
CASE MAY BE CITED AS: | DP (a pseudonym) v Bishop Bird (Ruling No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 540 |
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INSTITUTIONAL LIABILITY – PRACTICE AND PROCEDURE – Admissibility of previous judgments or decisions – Findings of fact in previous judgment or decision admissible for purpose of proof of new fact in issue – Findings of guilt in criminal proceeding relevant to knowledge of defendant in subsequent civil proceeding – Ainsworth v Burden [2005] NSWCA 174 – Stephensen v The Salesian Society [2018] VSC 622 – R v Eastman (No 44) [2018] ACTSC 194 – Linfox Australia Pty Ltd (ACN 004 718 647) v Transport Accident Commission (2016) 78 MVR 177 – Attorney-General (NSW) v Martin [2015] NSWSC 1372 – Evidence Act 2008 ss 55, 91.
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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:
Introduction
There are two discrete parts to DP’s[1] claim against the Diocese.[2] Each relates to alleged assaults occurring between the early part of 1971 and Boxing Day 1971. The first is that based on vicarious liability for the actions of Father Coffey. If DP demonstrates that the Diocese is vicariously liable for the unlawful assaults allegedly perpetrated by Father Coffey then the Diocese will be held liable.
[1]The plaintiff is referred to by a pseudonym pursuant to an order of Irving JR made on 21 April 2021.
[2]The factual and procedural background of this case is set out in DP (a pseudonym) v Bishop Bird [2021] VSC 453 (‘Ruling No 1’).
That determination will be made independently of the case in negligence against the Diocese.
This second part of the claim — often described as direct liability in an employee/employer claim — is a traditional negligence cause of action. It requires DP to establish the existence of a duty of care by reference to the common law; then questions of breach of duty and causation are determined by the application of the provisions of Part 10 of the Wrongs Act 1958.
As I see it, integral to the direct liability case on breach of duty is the requirement that DP establish that the Diocese knew or ought to have known that Father Coffey posed a ‘not insignificant’ risk of harm[3] (by way of sexual interference) to young Catholic boys who were the children of parishioners.
[3]See Wrongs Act 1958 s 48(1)(b).
In February 1999, Father Coffey was convicted by a jury on 12 counts of indecent assault upon young boys.
To assist in the proof of one or other of these propositions (ie actual or constructive knowledge) DP seeks to tender extracts (the ‘extracts’) of the sentencing reasons of the trial judge, his Honour Judge Michael Kelly (the ‘sentencing reasons’). The transcript of the sentencing reasons is extant, and for the purpose of imposing the sentence his Honour set out some of the details of Father Coffey’s offending — necessarily these were findings of fact.
The extracts set out in precis the details of Father Coffey’s offending prior to and after the time of DP’s alleged assaults. Each occurred in generally similar circumstances as his alleged assaults of DP and in the same geographical area.
The question that has now arisen is whether, as DP argues, the extracts are admissible to establish the knowledge of the Diocese as to Father Coffey’s behaviour. Or, as the Diocese contends, are the extracts excluded by the operation of ss 55 and 91 of the Evidence Act 2008 (the ‘Act’) on the basis of lack of relevance and/or inadmissibility of a past finding of fact?
The criminal case against Father Coffey
In February 1999, Father Coffey was tried in the County Court at Ballarat on 14 counts of indecent assault on a male person under the age of 16 years, one count of indecent assault on a girl under the age of 16 years and one count of false imprisonment. Those offences were allegedly committed between 1960 and 1975.
A jury convicted him on all charges save for two of the counts of indecent assault of a male under 16.
On 26 February 1999, Father Coffey was sentenced by Judge Kelly to three years’ imprisonment, wholly suspended.
What findings of fact did Judge Kelly make?
In the sentencing reasons Judge Kelly recounts each of the charges against Father Coffey, their date and the circumstances in which they occurred. For example, with respect to counts one and two, encompassing Father Coffey’s offending against TT,[4] his Honour found:
Count one is constituted by the prisoner putting his hand down the back of [TT]’s pants and kneading his buttocks. This occurred when the complainant was sitting on the prisoner’s knee at a family celebration in the prisoner’s family home. It occurred soon after his ordination. The complainant was six or seven years of age.
Count two occurred in the latter part of 1963 and was constituted by the same conduct with the same complainant during a visit by the prisoner to the complainant’s home, and in the course of horseplay with the complainant and his brother. The complainant was then nine or 10 years of age.
[4]While there is no pseudonym order in place in respect of this complainant, I have chosen to use one in this ruling.
The balance of the contents of the extracts consists of a recital of a further 11 counts[5] in similar fashion. The exception is this: in his Honour’s remarks, after setting out the details of each count, it is noted that on only one occasion was Father Coffey’s conduct reported to an adult. These findings were all necessary for his Honour to determine the sentence that he ultimately imposed.[6]
[5]Two of which were not made out, and one of which involved a girl under the age of 16.
[6]See R v Storey [1998] 1 VR 359, 369 (Winneke P, Brooking, Hayne JJA and Southwell AJA), 380 (Callaway JA).
Relevance: s 55 of the Act
A priori, any evidence that is relevant in a proceeding is admissible.[7] Section 55(1) of the Act reads:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
[7]Act s 56.
The factual matters contained within the extracts demonstrate the existence of other assaults by Father Coffey upon young boys prior to December 1971, as the example given above shows. I accept that the facts contained in the extracts establish, at least as a possibility, that there was a body of knowledge in the Catholic community (be it of children or parents or both) in and around Port Fairy as to Father Coffey’s unlawful behaviour with young boys (and at least one girl) with whom he came into contact.
This body of evidence could rationally affect the probability that the Bishop or the Diocese knew of Father Coffey’s behaviour. Alternatively, it is a foundation for a contention that one or the other ought to have known of it.
To put it another way, the existence of these facts, their similarity (both to one another and to the alleged offence against DP) and number, has the potential to increase the prospect that the Diocese knew, or, if it did not, that it should have known, that there was an not insignificant risk that Father Coffey would sexually assault a young Catholic boy (such as DP) living in or with a connection to the parish.
The evidence contained in the extracts of Father Coffey’s behaviour up to 1971 therefore satisfies the s 55 test.
Of course, whether it is sufficient on its own or with other evidence to establish that it was more probable that the Diocese or the Bishop knew or ought to have known of Father Coffey’s behaviour at the time of the alleged assaults is a discrete issue that will be determined once all the evidence is in.
Finally, it must follow that evidence of any assault by Father Coffey after Boxing Day 1971 could not be within the relevant body of knowledge available to the Diocese and is irrelevant and inadmissible.[8]
[8]The parts of the extracts that can be relied upon as probably occurring prior to Boxing Day 1971 have been highlighted and provided to the parties.
Indeed, this was the approach of McDonald J in Stephensen v The Salesian Society,[9] in a similar case.[10] His Honour limited the admission of the sentencing reasons to those portions containing admissions of offending predating that which took place against the plaintiffs as any finding as to the offending priest’s assaults of victims after that point in time was not relevant to the appreciation of a risk at that time.[11]
[9][2018] VSC 622 (‘Stephensen’).
[10]That is, findings of fact in a criminal proceeding as to the accused’s commission of assaults were sought to be admitted in a later civil proceeding relating to different assaults by the accused as evidence of the knowledge of the defendant to the latter proceeding.
[11]Stephensen [2018] VSC 622, [20].
Admissibility of a prior decision or finding of fact: s 91 of the Act
Once the relevance threshold is crossed the next hurdle for DP is s 91 of the Act. This limits the admissibility of evidence of previous judgments and convictions in the following terms:
Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.
Principles
Section 91 does not prevent the admission of all findings of fact in a previous judgment or decision in a later, related proceeding.[12] In Ainsworth, in the New South Wales Court of Appeal, Hunt AJA, with whom Handley and McColl JJA agreed, said:
It is clear that s 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered.[13]
So s 91 does not prevent the admission of any finding of fact in a judgment or decision per se, but, rather, governs the use that may be made of it. As Hunt AJA went on to say:
It merely prevents the judgments from being tendered for the purpose of proving the existence of those facts. If they are admissible for some other purpose — as they are in the present case, in order to demonstrate that they would have persuaded any honest-minded person that the defendant’s allegations were false — they may not then be used to prove the existence of those facts, a consequence which would otherwise have flowed from s 60 of the Evidence Act.[14]
[12]See, eg, Ainsworth v Burden [2005] NSWCA 174, [109] (Hunt AJA) (‘Ainsworth’).
[13]Ibid [109] (emphasis in original).
[14]Ibid.
This understanding of the nature of the prohibition was confirmed by McDonald J in Stephensen, a case involving somewhat similar allegations to those in this case:[15]
Section 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. Rather, it prevents the judgments being tendered for the purpose of proving the existence of those facts.[16]
[15]See below [28].
[16]Stephensen [2018] VSC 622, [18], citing Ainsworth [2005] NSWCA 174, [109].
The correct approach to the application of s 91 is demonstrated by reference to some recent trial decisions of this and other courts.
In the ACT Supreme Court in R v Eastman (No 44),[17] Kellam AJ held that s 91 was not engaged where the prosecution sought to tender portions of a previous Administrative Appeals Tribunal (‘AAT’) determination in respect to prior violent conduct of the defendant. It did so in order to prove that, at the time of the making of the orders, the accused was aware of those findings by the AAT — not to prove the existence of that prior violent conduct. This was relevant to the trial because it grounded a prosecution argument that, reasoning that a subsequent conviction for offending of a similar nature to that which had resulted in his original dismissal would devastate his bid to be reinstated in the Australian Public Service, the accused would be motivated to commit murder to prevent the AAT findings from forming part of his trial for assault.[18]
[17][2018] ACTSC 194.
[18]Ibid [8], [11], [15].
Kellam AJ’s application of s 91 demonstrates the distinction between the facts in issue in the first proceeding and the use sought to be made of the decision in the subsequent proceeding. The use of the AAT findings in the Supreme Court proceeding was not as to the fact of the defendant having committed the conduct (the fact in issue in the AAT proceeding) but as to whether the defendant knew the AAT had made such findings when he was alleged to have committed the murder the subject of the trial (the new fact in issue). So the existence of the findings went to establishing his state of mind, not the veracity or accuracy of the finding of fact.
In Stephensen the plaintiffs sought to establish that the defendants — the Salesian Society and various Salesian priests — were both vicariously and directly liable for their sexual assault by two teachers employed at the school where they were boarders. The plaintiffs sought to admit as evidence on liability parts of the sentencing reasons given in two separate criminal proceedings against one of the teachers, Father Klep, containing admissions by him to various offences of sexual assault of other young male victims. McDonald J held that this part of the reasons was admissible in the civil proceeding to prove the defendants’ knowledge, that is, to ‘support an inference that the defendants were aware that [Father Klep] was sexually abusing students prior to 1980 [when the abuse of the plaintiffs occurred]’.[19]
[19]Stephensen [2018] VSC 622, [20].
Admission of these previous findings of fact did not offend s 91 because their use in the relevant civil proceeding went to ‘the issues of reasonable foreseeability and/or vicarious liability’, which were distinct issues to that of Father Klep’s criminal liability for the acts in question, proof of which had been the use of the same facts in the former proceeding.[20]
[20]Ibid.
At the other end of the spectrum is the decision of Keogh J in Linfox Australia Pty Ltd (ACN 004 718 647) v Transport Accident Commission,[21] a statutory indemnity claim flowing from a workplace injury claim in which Linfox had been a defendant. His Honour held that s 91 prevented the admission of certain findings of fact made in the original workplace injury proceeding that went to the issue of whether Linfox controlled a truck where the injury took place; those findings had been necessary to resolve the ultimate issue of whether Linfox had been negligent. In the subsequent indemnity proceeding, Linfox sought to adduce these facts to ground an argument that it was an ‘owner’ of the truck within the meaning of s 94(1)(a) of the Transport Accident Act 1986 by reason of its control of the truck at the time of the injury. Keogh J held that the findings of fact from the workplace injury proceeding were inadmissible in the indemnity proceeding because their admission was for the purpose of proving the same fact in issue: whether Linfox controlled the truck at the relevant time.[22]
[21](2016) 78 MVR 177.
[22]Ibid 180 [4], 185–6 [24]–[25].
The thread running through each of the foregoing applications of s 91 is the focus on the immediate use to which the factual findings in question are to be put in the extant proceeding, and whether this is to prove or resolve a different issue to that in the previous proceeding.
This is consonant with the view of the Court of Appeal in this State that one of the rationales of s 91 is to prevent a court from relying on the findings of a previous court in substitute for its own consideration and determinations of the facts in issue before it. In Daunt v Daunt,[23] the Court of Appeal held that a VCAT decision as to the competence of a person to transfer ownership of land was not admissible as evidence of the validity of the transfer in a subsequent proceeding in the Supreme Court in which that was a live issue. This was because:
[i]t was for the Court itself to decide whether Mrs Daunt was competent at the time of the transfer. This was not a task that could be abdicated in favour of the determination of some other body. That is the effect of s 91 of the Evidence Act 2008. It reflects the common law.[24]
[23][2015] VSCA 58.
[24]Ibid [59] (Redlich, Santamaria and Kyrou JJA).
It follows from this excursus that the purpose and effect of s 91 is that a finding of fact in a prior proceeding is admissible in a later proceeding related to the same subject matter so long as it is relevant to a different issue raised in the subsequent proceeding and, pursuant to sub-s (2), is used only to prove facts relevant to that new issue.
Application of the principles to this case
In Attorney-General (NSW) v Martin,[25] Simpson J distilled the inquiry outlined above to three questions:
Whether s 91 operates to exclude the use of any of the decisions and judgments will depend upon an analysis of three things — (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which [the party seeking to tender them] seeks to put those judgments — that is, what facts she seeks to prove by their use.[26]
[25][2015] NSWSC 1372.
[26]Ibid [13].
So in this case the questions to be asked, using Simpson J’s formulation, are: (i) what were the facts in issue in the criminal trial of Father Coffey; (ii) what findings of fact did Judge Kelly make in the sentencing reasons; and, (iii) what are the facts that DP wishes to prove by the tender of the sentencing reasons?
The ultimate fact in issue in the criminal proceeding was whether or not Father Coffey had committed any or all of the 16 offences charged. The relevant findings of fact are set out in the extracts — excluding those after 1971.[27]
[27]That is, counts 14, 15 (which was the charge of unlawful imprisonment) and 16.
It is the third question that is the critical issue: is the purpose of adducing the extracts in this trial and the issue of fact raised by the evidence in the extracts different to those in the criminal trial?
It is clear that the findings contained in the extracts cannot be ‘added’ to the tendency evidence already admitted to form part of DP’s case in establishing that the alleged assaults against DP occurred[28] — a fact in issue in this proceeding. In other words, they cannot supplement that evidence to increase the probability of those alleged assaults occurring.
[28]See Ruling No 1.
However, as has been discussed, DP says that the findings contained in the sentencing reasons — that Father Coffey committed these similar offences around the time of the assaults upon DP — are not sought to be tendered in order to prove their existence as evidence that he committed the assaults against DP. Rather, DP seeks to tender them in order to prove the Diocese’s knowledge, or constructive knowledge, that there was a risk that Father Coffey would sexually assault DP.
In the comparative process called for by s 91 it must be determined that the use in the current proceeding is a ‘new’ use. In Stephensen, a case, it will be recalled, involving similar allegations to those in this case, McDonald J held that s 91 did not prohibit reliance upon admissions made by a cleric and referred to in sentencing reasons as the reliance placed upon them went to the potential knowledge of the Diocese or Bishop.[29] In this case it is not a question of admissions contained in the sentencing reasons: rather, it is the findings of fact contained in the extracts as to the nature of the offending by Father Coffey prior to 1971.
[29]See above [28].
Whilst the distinction between the two uses may appear somewhat artificial (ie the facts remain the same) once a party demonstrates a different use of the findings of fact and their relevance to that use, then the prohibition is avoided.
I am satisfied that the use to which DP wishes to put the contents of the extracts is different to that in the criminal trial. The issue of the knowledge of the Bishop or Diocese is a genuine issue in this civil claim and distinct to any issue in the criminal trial of Father Coffey.
It follows that the admission in this trial of the evidence contained in the extracts of Father Coffey’s conduct prior to 1971, as it relates to the putative knowledge of the Diocese or the Bishop, is not prohibited by s 91(1). Of course, its use is confined by s 91(2) to that purpose alone.
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