GGG v YYY - [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:

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.

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.

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.

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.

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.

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.

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

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.

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

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 GGG v YYY

Details

AGLC: GGG v YYY [2011] VSC 365
Case: [2011] VSC 365
Decision Date: 2 August 2011

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