FFF v BBB
[2017] VSCA 156
•23 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0151
| FFF | Applicant |
| v | |
| BBB | Respondent |
---
| JUDGES: | PRIEST and BEACH JJA and KEOGH AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 12 May 2017 |
| DATE OF JUDGMENT: | 23 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 156 |
| JUDGMENT APPEALED FROM: | [2016] VCC 1431 (Judge Davis) |
---
INTENTIONAL TORTS – Application for leave to appeal – Sexual assaults – Whether sufficient evidence that sexual assaults occurred – Presumption of innocence – Forensic disadvantage – Whether evidence unreliable – Delay – Motive to lie – Good character – Whether judge erred in failing to take account of issues not argued at trial – Whole of the evidence – Briginshaw v Briginshaw (1938) 60 CLR 336 referred to – Proposed grounds of appeal having no real prospect of success – Application for leave to appeal refused – Evidence Act 2008, s 140.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Ms C M Randazzo SC with Ms C Spitaleri | Tasiopoulos Lambros & Co |
| For the Respondent | Mr T P Tobin SC with Ms A Ryan | Adviceline Injury Lawyers |
PRIEST JA
BEACH JA
KEOGH AJA:
The respondent alleges that once in about 1955, and on a number of occasions between 1962 and 1965, she was sexually assaulted by the applicant. The respondent is the sister of the applicant, and is nine years his junior. The sexual assaults were alleged to include the applicant rubbing his erect penis against the respondent, fondling the respondent’s breasts and having the respondent masturbate him. The respondent first complained of the assaults in 2014 in a conversation with a sibling. The applicant denied the assaults.
The respondent brought an action against the applicant in the County Court claiming damages in respect of the alleged assaults. The trial was heard over a period of six days by a judge sitting alone. Evidence was given by the respondent, the applicant, several family members and medico-legal psychiatrist Professor Dennerstein. Other medical evidence was tendered. The respondent gave the only direct evidence of the assaults. The principal issue in dispute at trial was whether the assaults occurred. It was common ground at trial that the issue was to be determined in accordance with the principles stated by Dixon J in Briginshaw v Briginshaw.[1] The trial judge found for the respondent and awarded damages including interest of $215,000 plus costs on an indemnity basis.
[1](1938) 60 CLR 336.
The applicant seeks leave to appeal. The issues raised by the proposed grounds of appeal are:
(a) whether the trial judge erred in the application of the Briginshaw test[2] in her analysis of the evidence in the case; and
(b) whether it was open for the trial judge to be satisfied in accordance with the Briginshaw test that the alleged incidents of sexual assault occurred.
[2]In referring to ‘the Briginshaw test’ we adopt the language used by both parties at first instance and in this Court, and the words used by the applicant in her proposed ground 1. We take the expression to be a reference to what was said by Dixon J in Briginshaw, and in particular to what his Honour said at 360–363, and we are content to use the parties’ expression in this judgment in that sense.
The evidence
The applicant was born in Italy in 1939, and the respondent in 1948. The applicant migrated to Australia in May 1955. The respondent said that on an occasion before the applicant left Italy she was sick and home in bed for the day when the applicant got into her bed and rubbed his erect penis against her back.
In 1962 the respondent and most of her family migrated to Australia and commenced to live with the applicant. The respondent said:
[The applicant] started — not long after he started to touch me, my breast. That was the first time. Some time he come in my bedroom, through the door, he come across, touched the breast and after (indistinct).
The respondent said there was an occasion when the applicant woke her from her bed at night when everyone was sleeping, took her to the bathroom, closed the door, touched her breast, put his hand in between her legs and put a finger in her throat so she nearly choked. The respondent said:
I had to pump his penis and then I couldn’t do that. He put his hand on top of mine. All at once I didn’t know what it was. I didn’t know — I never talk about, I never see. All he spray (indistinct) in the bathroom and I say, ‘What’s that?’ He say, ‘Nothing.’ So I run in my room and I cover myself up.
The respondent said she had no sexual experience, had not been taught anything by her mother and had never seen a penis at that stage. The applicant told her, ‘Make sure you don’t tell anybody’ and ‘I kill you if you do that.’ There was a second occasion in the bathroom when the same thing happened, but this time the applicant did not put his finger in her mouth but he did try to put his tongue in her mouth. The applicant again ejaculated. She did not say anything ‘because I knew the rules. I was scared though.’
On an occasion in summer all the family went to the Frankston beach. The respondent said that on the pretence of teaching her to swim the applicant dragged her into the water away from everybody else to a depth where she could not stand. The respondent said the applicant put:
One hand on the breast, one hand in my leg, and then I felt his penis hard. I was so embarrassed of the people.
This went on for five or six minutes. The respondent said ‘take me out’, then the applicant took her to where she could stand and she ran to her mum. The respondent said:
I was scared. I didn’t want the family to — how do you say? To disgrace. I didn’t want a bad name for the family and I suffer myself until come the time I couldn’t do it anymore, to fake I — I pretend I like him. Really, I never did.
In his opening at trial senior counsel for the respondent described incidents alleged to have occurred in the family car as follows:
The plaintiff suffered from car sickness, and she always adopted a position near the window. In that position the defendant insisted on a number of occasions that she sit upon his lap, and in those circumstances they would be travelling frequently to one of the family outings — a regular family outing was to Frankston to the beaches at Frankston — and she would then feel him rubbing his erect penis upon her buttocks or her lower back area.
In her evidence the respondent said that in 1962 the family bought a Holden station wagon, and at first her brother C normally drove the car because he had an international licence. In evidence-in-chief the respondent was asked:
Q. When you travelled in that car, where did you normally sit in the car?
A. At the back.
…
Q. Either side? Behind the driver or behind the passenger?
A.When he did the make me sit on top of him, that was behind the driver, but sometime I want to get out, so I sit in the middle. We was one in, one out, one in, seven people at the back.
Q.When you say you sit on top of him, how many times was it that he demanded you sit on top of him?
A. Twice.
Q.Twice. Can you remember whether or not that was before or after the beach event that he did that?
A. Jeez, I don’t know the - - -
Q.If you can’t say, say so. Do you know whether it was before or after the beach when you were sitting on him?
A. I think it was after when he started to put me on his lap.
The respondent said that one day her parents were outside the family home and she was in the lounge room doing some cleaning when the applicant grabbed her by the hand and took her to her mother’s bedroom, put her hand on his penis and his hand on her breast. All at once her father came in, grabbed her by the hand and gave her a smack. She ran to her room crying.
The respondent said that when she turned 16 the assaults stopped for a little while. In about early 1965 she and a work colleague arranged to introduce the applicant to the daughter of the work colleague. The couple later became engaged, and married in late 1965. The respondent said that a couple of months before the marriage she slept one night at her work colleague’s house. The next morning the applicant was driving her home when he stopped the car. The respondent said:
so he grabbed my hands and put them into his leg then he touched my breast. I says, ‘Stop it. We have to go home. You’ve got to get married now.’ So we went home.
This was the final assault alleged by the respondent.
The respondent said she did not tell anyone about these events:
Because I didn’t — scandal of the family; we were nine kids, we had — or to get married; and I come from [the] country, they say if somebody done something to somebody, they can’t get married, they don’t want them or you know, and I have this panic in my — so I talked to myself and I done everything I could to show myself happy and everything in front [of] everybody but some time when we went to a party or something, when I see him, I go home; and I talk to my husband. Some time he want me and I feel — I say, ‘No, I’m tired,’ and he comes to me, ‘Sorry, I didn’t know,’ he said I need to say [‘]sorry’ in my - - -
There was no witness to any of the assaults. Whether the assaults occurred was largely to be determined on the evidence of the respondent and the applicant. As stated, the applicant denied the assaults.
At trial, other than by the following exchange, the respondent was not directly challenged in cross-examination in relation to the occurrence of the assaults:
Q.Finally, before I sit down madam, I suggest that in recent years, ’14 and ’15, you’ve been under a great deal of stress to do with your own family, do you agree with that?
A.I did but this part I did solve, I done, okay, but that part, what he done to me, I can’t take it out of my head. It come to the stage I had to spit it out — I don’t know, how do you say?
Q.I’m suggesting that it’s because of the stresses you’ve been under in regard to your own family, some of which I’ve just put to you here, that you have decided enough’s enough and I’m going to get back at the men in my family?
A.How could — I got to take it out. I had to take it out. I couldn’t cope anymore. I couldn’t fight — I’m sorry, I don’t know if I say it right.
Q.And you decided that you would punish your brother by making false accusations against him in this court to get money out of him?
A. No, I don’t go for his money.
Otherwise the focus of lengthy cross-examination was largely to establish inconsistencies or factual inaccuracies in the evidence of the respondent and to challenge the respondent’s credit.
There were two topics on which the respondent, the applicant and other family members gave evidence which were said by counsel for the applicant to be relevant to this appeal. First was the driving of the family car, a Holden station wagon purchased in 1962. The respondent was asked about the driving of the family car. She said that when she arrived in Australia in 1962 the applicant did not have a driver’s licence. Her brother C arrived a few months later, at the time the family car was purchased, and C drove the car because he had an international licence. The respondent was asked in cross-examination:
Q.Can I put to you this, that in these early years, that is after your arrival over the next two or three years, that [the applicant] was, when the family got together and all got into the car, nearly always the driver?
A. Sorry, nearly always?
Q.Nearly always, on nearly every occasion was the driver [the applicant] was?
A. [C] was first and then when he got the licence, he can drive too.
Q.In this three year period we are discussing in some detail for other reasons, 1962, ‘63, ‘64, perhaps, do you have a recollection of [the applicant] being the driver?
A.No I don’t. I only remember [C] was the driver and then he got married, he got the car before that — I don’t know, I don’t recall all these things. I only recall that when he did to me and [C] was the driver.
The applicant and three of the parties’ brothers, J, D and E, gave evidence on this topic. J, who was born in 1957, said that when he first arrived in Australia in 1962 the family car was a Holden EJ station wagon which, as far as he recalled, his brother C drove everywhere. He could not recall whether the applicant had a licence at that stage. D was 19 when he arrived in Australia in 1962. He said in the beginning the applicant drove the family station wagon, and that sometimes after a few years C drove the car. D could not recall the applicant ever travelling in the back seat of the car. E was 17 when he arrived in Australia in 1962. He said the applicant always drove the family station wagon, because he was the only one who knew the roads, and that C did not drive until the applicant was married.
The applicant’s first licence was dated December 1959. At that time he did not have a car, and would drive with an instructor to ‘keep myself going’. When the Holden station wagon was purchased he would drive. He said C did not obtain his licence until late 1963 or 1964. The applicant said there was never an occasion when he was in the back of the station wagon with the respondent sitting on his lap. The applicant agreed C was an experienced car driver in Italy before coming to Australia in 1962. He was uncertain whether C had an international licence. He agreed that ‘not often … maybe once or twice’ when C started driving in 1964 the applicant had travelled in the back of the family car.
The second topic said by counsel for the applicant to be relevant on appeal was the family sleeping arrangements and in particular where the respondent slept. In cross-examination the respondent was shown a plan of the home. She was asked:
Q.If you look down at it, you are pointing to the bottom right-hand corner where it’s labelled, ‘dining room’?
A.Yes, here, lounge/dining was close and then the kitchen, the laundry, the bathroom, my bedroom and my sister, they had bunk bed and that was my father there.
Q.If you just hold it up so we can all see, that might be the simple illustration. If you can manage pointing to where it was that you slept, as you described yesterday? Isn’t it down the bottom in the dining area?
A. Here, room bedroom 3.
Q. Did you say that you and your sister [H] slept in that bedroom?
A. In the same bedroom.
Later the respondent was asked where other members of the family slept:
Q.Whilst you are there, we can see on the plan a square bedroom that’s described as bed 2, do you see that?
A. Yes.
Q. Who slept there?
A. All my brothers, they had bunk beds.
Q. And?
A. And when [C] come, we put a bed in the dining room too.
…
Q.Just on that subject, you say the dining room was not the room that you slept in?
A. No, my bedroom was number 3.
Q. Bed 1, who slept there?
A. Sorry?
Q. Bed 1 on the plan?
A. My mum and my dad.
On this topic J said the respondent ‘would have probably shared the bedroom with H’. Asked where the respondent and her sister H slept, D said, ‘Probably remember I think they sleep in the dining room’. In cross-examination D was asked whether he had a good memory of where everyone slept at the family home and he said, ‘Well, just — I remember a bit but I can’t — I can’t remember everything, you know what I mean’. D said he could not remember who slept in the bedroom next to the bathroom, which is bedroom 3 on the plan. E said his sisters slept in the dining room. He said three or four boys slept in the room next to his parents’ room. He could not recall where J normally slept, nor who slept in each room. He could not remember whether there were bunk beds. He was asked:
Q. Can you remember at all who you were sleeping with then?
A. I was [sic] sleep in the bed but I don’t remember the rooms.
He could not remember which room he slept in. The applicant said that his parents slept in bedroom 1, he slept in bedroom 2 with D and C, other brothers slept in bedroom 3, and the respondent and H slept in the dining room.
On this application counsel for the applicant also drew attention to the evidence of psychiatrist Professor Dennerstein, in particular the following exchange:
Q.What you’ve just said, without being critical of you at all, leads us all into caution in this area. You said she was smacked by her father, and you put it in the context, that’s the allegation, and that’s the difficulty here. The starting building blocks to all of this are what is communicated by the alleged victim, is that not so?
A.Yes, it is, and I think that we all have to be very careful in this area and try to see if what they are telling us is similar and the symptoms that arise from it [are] similar to other accounts that we hear. Given the Calabrian background that you have so eloquently described, it would be very unusual for anyone to come forward with childhood sexual abuse if it didn’t happen. I mean, there would be such shame about it, I cannot actually imagine it occurring unless the person is a total psychopath which this woman has no evidence in her life of ever being. So I just — I think you have to have to [sic] take that sort of aspect into account too.
Submissions for the applicant at trial
In detailed final submissions to the trial judge, counsel for the applicant argued that, for three reasons, the respondent had not discharged the onus of proving the assaults occurred. First, it was submitted that there were many factors which led ‘to a conclusion of unlikelihood’ that the alleged assaults took place, including that the assaults were not witnessed despite occurring in close proximity to other family members; failure of the respondent to disclose the assaults for almost 50 years despite having many opportunities to do so; the normal, loving and supportive interaction between the respondent and the applicant for most of those years; the respondent acting as matchmaker between the applicant and his wife; the baseless and unexplained allegations of vaginal penetration, oral sex and sexual intercourse contained in correspondence from the respondent’s solicitors and in court documents; and the consistent denial of the allegations by the applicant.
Secondly, the applicant submitted that there were other stressors and motivating factors for the respondent’s alleged symptoms, and motivation for the respondent to make the allegations which included the respondent’s upset about how the girls (particularly her) were treated by their father and brothers, and that this was ‘a factor capable of generating an animus towards one or other of her surviving brothers’. Further, it was submitted ‘the timetable of these proceedings point to financial gain being the generator’.
Thirdly, counsel for the applicant argued that the plaintiff’s credit was undermined for reasons including that the respondent said that she had also been sexually abused by her brother D and by her father, which D denied; the evidence of the respondent as to the sleeping arrangements at the family home was contradicted by the evidence of the applicant and brothers D and E, and should not be accepted; and the evidence of the respondent as to the applicant’s driver’s licence and driving the family car in 1962 was contradicted by the evidence of the applicant, and should not be accepted.
As can be seen from the above, much of the applicant’s case at first instance amounted to an attack on the credit of the respondent.
The trial judge’s reasons
In her reasons the trial judge first recorded the allegations of sexual assault, including the following reference to the car incidents:
In late 1962, the family bought a station wagon. The plaintiff says that twice on occasions when the family travelled in the station wagon to go on outings, the defendant insisted that she sit on his lap in the back seat of the station wagon behind the driver and rubbed his erect penis against her lower back.[3]
[3]BBB v FFF [2016] VCC 1431 [7] (‘Reasons’).
After summarising the evidence given at trial, and the final submissions for the applicant, her Honour commenced her analysis as follows:
I accept that the plaintiff must establish the fact of sexual abuse in accordance with the principles stated by Dixon J in Briginshaw,[4] that is, the reasonable satisfaction of the Court which cannot be established independently of the nature and consequence of the fact or facts to be proved, but which must be affected by the seriousness of the allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from the particular finding. I also acknowledge the need to carefully scrutinise the evidence bearing in mind the effect of [the] lapse of time upon the capacity to test the plaintiff’s evidence.[5]
[4]Briginshaw v Briginshaw (1938) 60 CLR 336, 361–2.
[5]Reasons [69].
The trial judge then dealt with the factual issues that had been argued in detail as follows:
1. First, the judge accepted the respondent’s evidence as to sleeping arrangements in the family home, noting the respondent had not been challenged on this evidence in cross-examination, that her evidence on this point ‘was clear, emphatic and consistent’,[6] was supported by the evidence of J, and that while D and E gave evidence that the respondent and her sister slept in the dining room they ‘did not really recall where everyone slept.’[7]
2. Secondly, the judge accepted the evidence of the respondent that ‘her brother C was driving on the occasion when she sat behind him and on the [applicant’s] lap.’ The trial judge noted the evidence that C was an experienced driver in Italy, held an international licence, and obtained an Australian licence in 1963 or 1964. The trial judge concluded there was no reason why the driving by C could not have occurred in 1963/64 or 1964/65, and that there was no reason to reject the respondent’s evidence ‘that there was opportunity for the conduct of which the [respondent] complains to have occurred in the back of the car.’[8]
3. Thirdly, the judge accepted the respondent’s evidence as to the episode of abuse when she was being driven home by the applicant after sleeping the night at her co-worker’s house. The judge noted the respondent was not cross-examined about this event and it was not put to her that she had not stayed overnight at her co-worker’s house. The judge noted that the applicant’s wife, who had been in court throughout the trial, and who was the daughter of the co-worker, was not called to give evidence, and on that basis drew an inference that her evidence would not have assisted the applicant.
[6]Ibid [71(a)].
[7]Ibid.
[8]Ibid [71(b)].
The judge made reference again to the requirements of the Briginshaw test, noting that weight must be given to the presumption of innocence and that exactness of proof is expected. Her Honour then continued her analysis as follows:
73I am satisfied to the requisite degree that the incidents of sexual abuse occurred as alleged by the plaintiff. In reaching this conclusion I have had regard to all of the evidence before me, particularly that of the plaintiff, her youngest brother and husband, and the medical evidence, which in my opinion is supportive of the plaintiff’s claim. The plaintiff’s evidence was detailed, consistent with what she told doctors and, in terms, compelling. She was cross-examined at length and was unshaken as to the essential elements of the incidents alleged by her and their surrounding circumstances. In the light of her evidence and medical evidence, I reject the defendant’s assertions that animus towards her father, the desire for financial gain, or a pre-existing psychological condition could account for the making of false accusations of sexual abuse against the defendant.
74 I consider that the weight of the medical evidence is that she suffers no thought disorder, and no independent longstanding depression but rather suffers from chronic PTSD with depressive features (among many others) and certain post-traumatic features (flashbacks, nightmares) which cannot arise spontaneously but which both psychiatrists and the treating counsellor attribute to the sexual abuse which she suffered at the hand of the defendant. The weight of the psychiatric opinion is that the plaintiff’s chronic PTSD symptoms were probably present some time before the disclosure, have become more prominent since disclosure, which is often the clinical course, that she needs further treatment, and that in the absence of treatment to date, her symptoms are likely to persist indefinitely. The delay in reporting the abuse was regarded as insignificant by Dr Walton and Professor Dennerstein, who noted that this is common in such cases where people of the plaintiff’s generation feel guilt, shame, fear rejection and keep the abuse secret for many years.
Proposed grounds of appeal
In his original application for leave, the applicant relied on four proposed grounds of appeal. Subsequently, by amendment, grounds two and four were deleted, and ground three was recast. The amended grounds of appeal are as follows:
1.The trial judge erred in her application of the Briginshaw test regarding the standard of proof required and failed to direct herself or pay sufficient weight:
(a)to the presumption of innocence;
(b)to the significant forensic disadvantage that the applicant was subjected to;
(c)the issue of delay of complaint which was capable of adversely affecting the [respondent’s] credit;
(d)the issue of ‘motive to lie’ and direct herself properly or at all on the matter;
(e)the application of an unreliable evidence/witness direction by reason of the [respondent’s] adverse mental health;
(f)to the good character of the applicant/defendant;
(g)and the judge ought to have given herself a Longman warning.
3.It was not open for the judge, on the whole of the evidence, to be satisfied in accordance with the Briginshaw test that the alleged incidents of sexual assault occurred.
Ground One – Application of the Briginshaw test
The parties proceeded at first instance and on appeal on the basis that the respondent bore the onus of establishing the facts of the sexual assaults on the Briginshaw test. The parties did not direct the trial judge’s attention to the provisions of the Evidence Act, s 140 of which states:
140 Civil proceedings—standard of proof
(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.
In Nom v Director of Public Prosecutions,[9] this court accepted:
[9](2012) 38 VR 618.
that there is now a clear line of authority that equates the conceptual effect of s 140(2) with the principle developed in Briginshaw.[10]
and concluded:
Accordingly, whether it be by virtue of the common law or s 140, the civil standard of proof subject to the principle in Briginshaw is the relevant conceptual standard to which a fact finder must satisfy him or herself in proceedings of this nature.[11]
The applicant’s grounds of appeal fall to be considered on this basis.
[10]Ibid 653 [113] (Redlich, Harper JJA, Curtain AJA).
[11]Ibid 655 [124] (citation omitted).
The fundamental problem with ground one is that it does not reflect the way in which the trial in the County Court was conducted for the applicant. There was no submission made to the trial judge in terms of the factors in ground one upon which the applicant now seeks to rely.
The final submission for the applicant at trial in relation to the Briginshaw test was as follows:
In applying the civil standard of proof, it is appropriate to take into account factors including ‘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’.[12]
The reasons demonstrate that the trial judge went well beyond that submission in her consideration of relevant principles. Her Honour noted that:
when in a civil proceeding a question arises whether a crime has been committed, the standard of persuasion is the same as upon other civil issues, but that weight must be given to the presumption of innocence and ‘exactness of proof is expected’.[13], [14]
[12]Citing Briginshaw v Briginshaw (1938) 60 CLR 336, 361–2 (emphasis omitted).
[13]Ibid, see also Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66.
[14]Reasons [72].
Counsel for the respondent referred the trial judge to the decision of Osborn J (as his Honour then was) in GGG v YYY.[15] Reference by the trial judge to the need to carefully scrutinise the evidence bearing in mind delay and the capacity of the applicant to test the respondent’s evidence is a precis of that part of the decision in GGG v YYY in which Osborn J stated, in a case of relevantly similar circumstances, that considerations of that nature should be taken into account when determining whether or not allegations of the nature made by the respondent in this case have been made out. In other words, Osborn J gave himself a Longman-type warning in GGG v YYY. In the current case, the trial judge acknowledged the need to proceed in the same fashion.
[15][2011] VSC 429 [103]–[104].
The reasons demonstrate that the trial judge addressed the evidence on which the applicant relied, responded to the submissions made at first instance by counsel for the applicant, and articulated, considered and applied relevant principles. It is not necessary that the trial judge address in the reasons factors which formed no part of the case for the applicant at first instance. Ground one is without merit. The application for leave on this ground should be refused.
Ground Three – Was it open to the trial judge to be satisfied that the incidents of sexual assault occurred?
Counsel for the applicant stated that the true gravamen of the application for leave was ground three and summarised the submission in support of that ground as follows:
Ground three, of course, relates not to the misapplication of the test, but rather [is] founded in a misstatement of the evidence, which demonstrates in our submission a lack of any careful scrutiny of the evidence; which of course is one of the fundamental requirements in order to reach a reasonable satisfaction that Briginshaw requires and that s 140 requires.
Counsel then identified four matters in respect of which, it was submitted, the trial judge erred in treatment of the evidence and made findings which were not open. First the applicant submitted it was not open to the trial judge to find ‘that twice on occasions when the family travelled in the station wagon to go on outings the [applicant] insisted that [the respondent] sit on his lap in the back seat of the station wagon behind the driver and rubbed his erect penis against her lower back.’[16] Counsel submitted that when describing the car incidents in her evidence the respondent made no mention of the applicant’s erect penis, or of the applicant rubbing his penis against her lower back. Counsel submitted that this finding by the trial judge was ‘a glaring demonstration of her Honour’s failure to carefully scrutinise the evidence.’
[16]Reasons [7].
Secondly, it was submitted the trial judge should have accepted the evidence of the applicant, corroborated by brothers D and E, as to who drove the family motor vehicle and whether the applicant ever sat in the back seat of the motor vehicle with the respondent on his lap. Counsel submitted there was no basis for the trial judge preferring the evidence of the younger brother J on this issue, given that he would have been only five or six years old at the time, against the clear and unequivocal evidence of D and E who were approximately 20 and 18 respectively.
Thirdly, the applicant submitted the conclusion of the trial judge that the respondent slept with her sister H in the bedroom next to the bathroom involved a misstatement of the evidence. Counsel submitted that the evidence of D and E on this point was ‘definitive’, and should have been accepted.
Fourthly, the applicant submitted the trial judge impermissibly relied on the evidence of psychiatrists Professor Dennerstein and Dr Walton as being ‘corroborative or supportive of the fact in issue; that is, whether the abuse actually occurred.’
It was submitted for the applicant that in combination treatment of these matters demonstrate that the trial judge did not carefully scrutinise the evidence. Further, had the trial judge determined the car driving and sleeping arrangement issues in accordance with the evidence, the credit and reliability of the respondent would thereby have been undermined. The conclusion of the trial judge that the assaults occurred was thus rendered unsafe and made a retrial necessary.
Analysis
The car incidents
In evidence-in-chief, when asked about travelling in the family car the respondent said:
When he did the make me sit on top of him, that was behind the driver, but sometimes I want to get out, so I sit in the middle.
In cross-examination, when asked whether she recalled the applicant being the driver of the family car in 1962, 1963 and 1964 the respondent said:
I only recall what he did to me and C was the driver.
It is difficult to gain a full appreciation of the substance of this evidence without having been at the trial. However, a number of observations can be made. First, it does appear that the respondent was giving evidence of the applicant having done something to her in the rear seat of the family car. Secondly, the respondent did not herself give evidence at trial that during the car incidents the applicant rubbed his erect penis against her back. Thirdly, the evidence of the respondent in examination-in-chief was given following the opening by her counsel during which the car incidents were described, and in a section of evidence-in-chief in which the respondent was asked about the assaults. The trial judge may have taken the view that in these exchanges the respondent conveyed that the car incidents occurred as described by her counsel in opening.
Fourthly, there was other evidence of the car incidents. Consultant psychiatrist Dr Lester Walton examined the respondent at the request of the applicant’s solicitors, and prepared a report dated 23 August 2016 which was tendered into evidence. In that report Dr Walton records the following history:
[The respondent] recalls that when travelling by car, her brother would place her on his lap and she became aware of his penile erection, despite the fact that the car was occupied by others.
Pursuant to s 60 of the Evidence Act, the history recorded by Dr Walton is evidence of the fact that the car incidents occurred.
Fifthly, details of the car incidents recorded by the trial judge largely reflect the substance of evidence given by the respondent and by Dr Walton in his report. The trial judge recorded that the car incidents occurred twice, and that the respondent was sitting on the applicant’s lap in the back seat behind the driver. The only source of that information was evidence given by the respondent. There was no direct evidence that the applicant rubbed his penis against the respondent’s back. However, the respondent said the incidents occurred when she was sitting on the applicant’s lap, and Dr Walton recorded that while sitting in that position the respondent became aware of the applicant’s erect penis.
Finally, the trial judge dealt with the car incidents in the reasons in a manner which reflected the manner in which the defence had been conducted for the applicant. In closing address at trial counsel for the applicant did not submit that a finding that two incidents occurred in the car involving the applicant rubbing his erect penis against the respondent’s lower back could not be made because no such evidence had been given by the respondent. The defence by counsel for the applicant focussed on the lack of opportunity for the car incidents to occur because the applicant was the driver of the family car and not a back seat passenger. That is the case for the applicant that the trial judge considered and determined in her reasons. In light of the above, there was no error by the trial judge in the description of the car incident allegations recorded by her or in the conclusion that the allegations of sexual abuse, which included the car incidents, had been made out.
Who drove the family car?
The attack of the applicant on the finding of the trial judge that there were occasions when brother C drove the family car and the applicant travelled in the back seat of the car is without merit. That finding was consistent with evidence given by the applicant. The applicant conceded that, at least by late 1963 or 1964, C had obtained an Australian driver’s licence and was on occasion driving the family car, and that at least on some of those occasions the applicant sat in the back seat of the car. On that basis the trial judge was correct to observe that there was no reason for her to reject the evidence of the respondent and the youngest brother J that there was opportunity for the car incidents to occur. Far from being demonstrably wrong or glaringly improbable,[17] such a finding was supported by the evidence of the respondent and brother J and consistent with the evidence of the applicant.
[17]Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 (French CJ, Bell, Keane, Nettle and Gordon JJ), 558–9 [43].
The sleeping arrangements
The respondent gave clear and unequivocal evidence that she slept in bedroom three with her sister H. That evidence was elicited from the respondent in cross-examination, and there was no real challenge to her on this point. The trial judge accurately records in the reasons that while D and E said that the respondent and her sister H slept in the dining room, neither recalled where everyone slept. Before us in oral argument counsel for the applicant accepted that the finding of the trial judge as to sleeping arrangements in the family home could not be said to be glaringly improbable. In the circumstances it is not a finding with which this court should interfere. The trial judge was entitled to accept the evidence of the respondent over that of the applicant, particularly in circumstances where the respondent’s evidence on this point was hardly challenged.
The trial judge’s use of the medical evidence
The trial judge concluded that she was satisfied that the sexual assaults ‘occurred as alleged by the plaintiff’, adding:
In reaching this conclusion, I have had regard to all of the evidence before me, particularly that of [the respondent], her youngest brother and husband, and the medical evidence, which in my opinion is supportive of [the respondent’s] claim. The [respondent’s] evidence was detailed, consistent with what she told doctors and, in its terms, compelling.[18]
The central issue at trial was whether the assaults occurred. The respondent gave the only evidence of the assaults. In cross-examination counsel for the applicant made a serious attack on the credit of the respondent in order to support a submission that the respondent’s evidence was unreliable and that the onus of proving the assaults had not been discharged. It was legitimate for the trial judge to consider the histories given by the respondent to doctors when determining whether the respondent’s evidence of the assaults should be accepted.
[18]Reasons [73].
In final address at trial counsel for the applicant submitted that there were psychological issues and other motivating factors which explained the allegations of sexual assault made by the respondent. Dealing with that submission the trial judge said:
In the light of her evidence and the medical evidence, I reject the defendant’s assertions that animus towards her father, the desire for financial gain, or a pre-existing psychological condition could account for the making of false accusations of sexual abuse against the defendant.
The medical evidence at trial included the report of psychiatrist Dr Walton, who on mental status evaluation of the respondent found no indication of psychotic disturbance, and expressed the following opinion:
You have posed the question as to whether or not [the respondent] may actually be mistaken about what has occurred on the basis that she is suffering from deluded thinking. I could find no evidence of delusional process.
In her reasons the trial judge recorded this finding and opinion by Dr Walton. The most likely explanation is that the trial judge was relying on the evidence of Dr Walton that there was no psychosis or delusional process when she rejected the submission of the applicant that other psychological factors may explain the respondent making the allegations of sexual abuse.
On appeal, counsel for the applicant made the following submission:
[Paragraph] seventy-four, in our submission, takes it further and is a clear demonstration that her Honour has interpreted the evidence, the medical evidence, as being corroborative or supportive of the allegations; that is, of the abuse having occurred.
In paragraphs [69] to [73] of the judgment the trial judge dealt with the central issue in the case and reasoned to the conclusion, expressly stated in paragraphs [70] to [73], that she was satisfied to the requisite degree that the incidents of sexual abuse occurred. In paragraph [74] of the reasons the trial judge moved logically to the issues of injury and causation. Her Honour noted that psychiatrists Professor Dennerstein and Dr Walton and the treating counsellor conclude that the respondent suffers from post-traumatic stress disorder, which those witnesses attribute to the sexual abuse. Next the trial judge referred to aspects of reasoning by the psychiatrists relevant to the conclusion that the sexual assaults caused the respondent to suffer post-traumatic stress disorder. First, the post-traumatic stress disorder symptoms are chronic. Secondly, the disorder is following an expected clinical course. Thirdly, delay in reporting is common in such cases and therefore insignificant.
In the opinion sections of his report Dr Walton commences with the following disclaimer:
the opinions I have expressed below rest on my having accepted [the respondent’s] account.
The opinion of Dr Walton as to the injury suffered and the cause of the injury becomes relevant once a conclusion has been reached that the alleged assaults occurred. That was the use made of Dr Walton’s report, and of the other medical evidence, by the trial judge in paragraph [74] of the reasons.
In our view ground three has no real prospect of success.
Conclusion
The application for leave to appeal should be refused.
- - -
3
5
0