FFF v BBB - [2017] VSCA 156

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…

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 FFF v BBB

Details

AGLC: FFF v BBB [2017] VSCA 156
Case: [2017] VSCA 156
Decision Date: 23 June 2017

CaseChat Overview and Summary

The appellant, FFF, sought leave to appeal against a conviction for sexual assault. The respondent, BBB, had filed an appeal against the conviction, which was dismissed by the Court of Appeal. The appellant sought leave to appeal further to the High Court of Australia. The court was required to determine whether there was a real prospect that the appeal would succeed, considering the substantial injustice test under section 140 of the Evidence Act 2008.

The court considered the sufficiency of the evidence and whether it was reliable, particularly given the delay in reporting the assaults and the potential forensic disadvantage. The court also examined the accused’s motive to lie and the presumption of innocence. The appellant argued that the judge had failed to properly consider certain issues, such as the reliability of the evidence, the forensic disadvantage, and the good character of the accused. The court referred to the Briginshaw standard for determining the weight of evidence, considering whether the proposed grounds of appeal had a real prospect of success.

The court found that the trial judge had appropriately considered the evidence, applying the Briginshaw standard. The court concluded that the appeal did not have a real prospect of success and dismissed the application for leave to appeal. The decision emphasised the importance of the trial judge’s role in assessing the credibility and reliability of evidence, particularly in cases involving sexual assault. The court held that the appeal did not meet the threshold for leave to appeal under section 140 of the Evidence Act 2008.

Orders