GGG v YYY

Case [2011] VSC 365


IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2814 of 2010

GGG Plaintiff
v
YYY Defendant

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JUDGE:

OSBORN J

WHERE HELD:

Melbourne

DATE OF HEARING:

1 August 2011

DATE OF RULING:

2 August 2011

CASE MAY BE CITED AS:

GGG v YYY

MEDIUM NEUTRAL CITATION:

[2011] VSC 365

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EVIDENCE – Tendency evidence – Where plaintiff alleges sexual abuse by uncle – Preliminary objection to admission of evidence of abuse of plaintiff’s two brothers – Whether significant probative value – Where sufficient common pattern – Where some evidence sought to be led also hearsay evidence – Sufficient common pattern unable to be identified or established in hearsay evidence – Evidence Act 2008 s 97, 135.

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APPEARANCES:

Counsel Solicitors
For the Plaintiff Mr T Tobin SC with
Ms B Knoester
Holding Redlich
For the Defendant Mr J Ruskin QC with
Ms A Magee
Rigby Cooke

HIS HONOUR: 

  1. The plaintiff is a 44 year old man who alleges he was sexually abused by his uncle between 1976 and 1980.  The defendant denies the abuse occurred. 

  1. I propose first to grant leave to amend the statement of claim in the terms discussed at the conclusion of yesterday's hearing.  Those amendments will make clear that prior to the incident at the Ambassador Hotel in December 1979, the incidents of sexual penetration which the plaintiff alleges are incidents of digital penetration.  The incident at the Ambassador Hotel involved acts which included ‘partial’ penile penetration of the plaintiff's anus. 

  1. The plaintiff's statement of claim includes allegations that the defendant at a series of locations and at different times: 

(a)       touched and rubbed the plaintiff's genitals;

(b)      masturbated the plaintiff; and

(c)       penetrated the plaintiff's anus with his finger.

  1. It is specifically alleged that the defendant between March 1976 and December 1979 frequently attended the plaintiff's home, entered the plaintiff's bedroom where he masturbated the plaintiff and penetrated the plaintiff's anus with his finger. 

  1. It is further specifically alleged that between the same dates the defendant took the plaintiff driving in the defendant's car on a regular basis and among other things masturbated the plaintiff and penetrated the plaintiff's anus with his finger. 

  1. It is further alleged that in December 1979 the defendant took the plaintiff to the Ambassador Hotel, Ballarat, where a series of sexual acts occurred, accompanied by force, including partial penile penetration of the plaintiff's anus and digital penetration of the plaintiff's anus. 

  1. The plaintiff has filed and served notices of intention to call tendency evidence from his brother RA, as well as AH and JH. 

  1. The evidence sought to be adduced from RA is of conduct which is alleged to have occurred in 1968 when RA was approximately nine years of age.  The defendant was at RA's home. RA's parents were not at home. The defendant entered RA's bedroom and started to touch RA inappropriately, including touching around RA's genitals. 

  1. The evidence sought to be adduced from AH is of an indecent assault of the…

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AGLC
GGG v YYY [2011] VSC 365
Case
[2011] VSC 365
Decision Date

CaseChat Overview and Summary

The plaintiff in this case, GGG, alleged that the defendant, YYY, sexually abused her over a period of time. The defendant objected to the admission of evidence of sexual abuse of the plaintiff's two brothers by the defendant, on the basis that the evidence did not have sufficient probative value or did not demonstrate a sufficient common pattern. The dispute was heard in the Supreme Court of Queensland. The court was required to decide whether the evidence had sufficient probative value and whether there was a sufficient common pattern to warrant the admission of the evidence. The court also needed to consider whether the evidence was hearsay and whether it could be admitted under the hearsay exception in the Evidence Act 2008.

The court held that the evidence of sexual abuse of the plaintiff's brothers had significant probative value and demonstrated a sufficient common pattern with the plaintiff's allegations. The court found that there were sufficient similarities in the circumstances of the abuse, the nature of the abuse, and the defendant's behaviour towards the plaintiff and her brothers to establish a common pattern. The court also held that some of the evidence sought to be led was hearsay, but that it was admissible under the hearsay exception in the Evidence Act 2008. The court found that the evidence was relevant to the issues in the case and that its probative value outweighed any prejudicial effect it may have had.

The court allowed the defendant's preliminary objection to be overruled and admitted the evidence of sexual abuse of the plaintiff's brothers. The court held that the evidence was relevant to the issues in the case and that its probative value outweighed any prejudicial effect it may have had. The court found that the evidence was necessary to establish a common pattern of behaviour by the defendant and that it was relevant to the credibility of the plaintiff's allegations. The court also held that the evidence was necessary to rebut the defendant's defence that the plaintiff's allegations were fabricated.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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