MTH v State of New South Wales

[2025] NSWCA 122

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

MTH v State of New South Wales [2025] NSWCA 122

Hearing dates:

7-8 May 2025

Decision date:

06 June 2025

Before:

Mitchelmore JA at [1]
Adamson JA at [2]
Price AJA at [262]

Decision:

(1)   Allow the appeal in respect of the judgment in favour of the second respondent.

(2)   Otherwise dismiss the appeal.

(3)   Set aside the judgment ordered by Cavanagh J in favour of the second defendant and the order in respect of the second defendant’s costs and, in lieu thereof:

(a)   Order judgment for the plaintiff on her claim against the second defendant in the sum of $1,346,000.

(b)   Order the second defendant to pay the plaintiff’s costs of the proceedings in the Court below.

(4)   Order the appellant to pay the first and third respondents’ costs of the appeal.

(5)   Order the second respondent to pay the appellant’s costs of the appeal.

(6)   Direct the parties to provide within 14 days short minutes of order proposing:

(a)   a consent order to address the freezing order made in the proceedings in the Court below; or

(b)   if consent cannot be reached, a draft minute of order which sets out the order for which the party contends together with a short written submission in favour of that party’s version, which the Court will determine on the papers.

Catchwords:

EVIDENCE — certificate of conviction — where certificate of conviction is admissible to prove elements of offences for which the perpetrator was convicted — where primary judge misled a litigant in person as to the effect of the Evidence Act 1995 (NSW) — where primary judge denied appellant procedural fairness — whether Court of Appeal ought approach the matter as if the certificate of conviction had been tendered — where primary judge misapprehended the effect of ss 91, 92 and 178 of Evidence Act — where primary judge’s failure to appreciate the admissibility of certificate of conviction to prove elements of offences compromised assessment of the credibility and reliability of the appellant — Evidence Act 1995 (NSW), ss 91, 92, 178

EVIDENCE — tendency evidence — civil proceedings — tendency rule — whether certificate of conviction had significant probative value — Evidence Act 1995 (NSW), ss 97, 100, 135

NEGLIGENCE — duty of care — vicarious liability — whether the State breached its duty of care to the appellant by failing to apply for an adoption order — whether the State breached its duty of care to the appellant by placing her with the perpetrator — whether the State breached its duty of care to the appellant by failing to foster her relationships with her natural siblings — whether the State is vicariously liable for the conduct of the appellant’s former foster carers — whether third respondent breached her duty of care to the appellant by failing to prevent or report the abuse

TORTS — trespass to the person — assault — battery — sexual assault — where appellant was physically and sexually abused by her foster carer while a ward of the State — where second respondent had been convicted of criminal offences against the appellant

APPEALS — where appellate court has found error — whether court should resolve issue to avoid economic and emotional costs of re-trial — Supreme Court Act 1970 (NSW), s 75A

TORTS — general principles –– damages –– aggravated damages –– buffer for past and future economic loss – earning capacity

Legislation Cited:

Adoption of Children Act 1965 (NSW)

Child Welfare Act 1939 (NSW), ss 10, 23

Crimes Act 1900 (NSW), ss 63, 76

Evidence Act 1995 (NSW), ss 91, 92, 93, 97, 135, 178

High Court Rules 2004 (Cth), r 41.08.1

Cases Cited:

Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27

Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349

Black v Young [2015] NSWCA 71

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34

Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13

Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185; [1966] HCA 38

Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357

Croft v R [2021] NSWCCA 146

Dajani v Dajani [2025] FedCFamC1A 28

Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321; (2021) 250 LGERA 136

Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644

Edwards v State Trustees Limited (2016) 54 VR 1; [2016] VSCA 28

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508

Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227

Hollington v R Hewthorn & Co Ltd [1943] KB 587

Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20

Lee v Cha [2008] NSWCA 13

Mace v Murray (1955) 92 CLR 370; [1955] HCA 2

March v E & MH Stramare Pty Ltd (1991) 171 CLR 506; [1991] HCA 12

MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3

Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501

Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36

Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6

Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325

Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341

Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34

R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469

Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep)

Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915

Re K (an infant) [1973] 1 NSWLR 311

Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062

Singh v The Queen [2020] HCA 25; (2020) 94 ALJR 714

State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57

The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40

Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW [2024] NSWCA 227

Troulis v Vamvoukakis [1998] NSWCA 237

Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94

United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60

Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407

Texts Cited:

Australian Law Reform Commission, Evidence (Interim Report No 26, 1985)

Category:

Principal judgment

Parties:

MTH (Appellant)
State of New South Wales (First Respondent)
Estate of the late Geoffrey Croft (Second Respondent)
Sandra Croft (Third Respondent)

Representation:

Counsel:
Self-represented (Appellant)
C P O’Neill (First Respondent)
K W Andrews (Second Respondent)
P A Tierney (Third Respondent)

Solicitors:
Not applicable (Appellant)
Makinson D’Apice Lawyers (First Respondent)
Keypoint Law (Second Respondent)
Moin Morris Schaefer (Third Respondent)

File Number(s):

2025/34755

Publication restriction:

Publication of names and any information or material that may lead to the identification of the appellant is prohibited: Crimes Act 1900 (NSW), s 578A; Children (Criminal Proceedings) Act 1987 (NSW), s 15A

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

MTH v State of New South Wales [2024] NSWSC 1517; MTH v State of New South Wales (No 2) [2024] NSWSC 1681

Date of Decision:

28 November 2024

Before:

Cavanagh J

File Number(s):

2020/113788

HEADNOTE

[This headnote is not to be read as part of the judgment]

MTH (the appellant) was made a ward of the State at the age of four and was placed with long-term foster carers, the Phelans. During most of the period of the twelve years MTH was living with them in northern New South Wales and Queensland, the Phelans wanted to adopt her. This did not proceed as her birth mother did not consent. In about 1978, there were difficulties between MTH and Mr Phelan which were compounded by his health problems which meant that the Phelans could no longer care for MTH. In 1979, the State placed her temporarily with Geoffrey and Sandra Croft on their rural property in northern New South Wales. During the period of this placement, Mr Croft raped the appellant twice and indecently assaulted her three times. Mr Croft was convicted of these five offences in 2019. In the same proceedings, Mr Croft was also convicted of four indecent assaults against RS (a foster child who stayed with the Crofts prior to 1979).

MTH brought claims against three defendants, who were the respondents on the appeal. Against the first respondent, the State of New South Wales, she alleged negligence in failing to apply for an adoption order in favour of the Phelans (the adoption case); in placing her with the Crofts (the placement case); and in failing to foster her relationships with her natural siblings (the family reunification case). She also sought to hold the State vicariously liable for Mr Croft’s acts and the failings of officers of the relevant Department (vicarious liability case). Against the second respondent, the estate of Geoffrey Croft, she claimed damages for the sexual and physical assaults perpetrated against her in 1979. As against the third respondent, Sandra Croft, she alleged negligence in failing to prevent or report the abuse.

At first instance, the primary judge entered judgments in favour of all the defendants. He found that none of the allegations of abuse had been made out as he did not accept the appellant’s evidence as to the assaults and RS had not been called to give evidence. Notably, his Honour erroneously inferred that the appellant was not seeking to rely on the convictions against Mr Croft to prove that he had committed the offences for which he was convicted. This significantly impacted the primary judge’s assessment of both the appellant’s reliability and credibility. In addition, his Honour did not correctly construe ss 91, 92 and 178 of the Evidence Act 1995 (NSW), which had the effect of making a certificate of conviction proof of the elements of each of the offences.

The Court held (Adamson JA, Mitchelmore JA and Price AJA agreeing) allowing the appeal against the second respondent with costs, but otherwise dismissing the appeal:

MTH’s challenge to the finding that she had not discharged her onus of proving that Mr Croft had sexually assaulted her

1. The primary judge’s finding that MTH had not discharged the onus of proving the abuse was plainly affected by two errors. First, his Honour wrongly inferred that MTH was not relying on the convictions. Secondly, he misunderstood the effect and operation of ss 91, 92 and 178 of the Evidence Act: [60] (Adamson JA).

2. The primary judge should have started with the convictions. Had a certificate under s 178 been tendered, it would have provided prima facie evidence of the elements of each offence. To the extent that MTH gave evidence of those elements, her account would have been corroborated by the certificate: [61] (Adamson JA).

3. The effect of ss 91, 92 and 178 of the Evidence Act is that a certificate of conviction is admissible to prove the elements of Mr Croft’s offences: [63] (Adamson JA).

4. The primary judge denied MTH procedural fairness by not alerting her to the evidentiary pathway which the Evidence Act allowed to enable her to prove the commission of the offences by tendering a certificate of conviction: [69]-[74] (Adamson JA).

5. Accordingly, the Court ought approach the matter as if the certificate of conviction had been tendered considering that it: (i) was not inadmissible by reason of s 135(a); (ii) was not inadmissible for a tendency purpose under s 97; and (iii) would not have created a forensic disadvantage against the estate: [59]-[86] (Adamson JA).

Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94; Lee v Cha [2008] NSWCA 13; Director of Public Prosecutions v Roder (a pseudonym) [2024] HCA 15; (2024) 98 ALJR 644, applied.

Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep); Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36; The Queen v Bauer (a pseudonym) (2018) 266 CLR 56; [2018] HCA 40; Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, cited.

MTH’s challenge to the judgment in favour of the estate

1. The estate accepted that if MTH established the offences in respect of which Mr Croft was convicted, she was entitled to judgment against them. Accordingly, the certificate of conviction established that Mr Croft raped the appellant twice and indecently assaulted her three times. The only contradictory evidence was Mr Croft’s denials, which were insufficient to displace the certificate or MTH’s evidence: [87] (Adamson JA).

2. Therefore, judgment in favour of the estate must be set aside and judgment must be entered in favour of the appellant: [88] (Adamson JA).

MTH’s challenge to the judgment in favour of the State

1. The duty of care owed by a guardian to a ward is non-delegable.

Willmot v Queensland [2024] HCA 42; (2024) 98 ALJR 1407; Bennett v Minister of Community Welfare (1992) 176 CLR 408; [1992] HCA 27; Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520; [1994] HCA 13, applied.

1. Each of the adoption, placement and family reunification cases concerned alleged negligence by the State in the exercise or failure to exercise a special statutory power (under either the Adoption Act 1965 (NSW) or the Child Welfare Act 1939 (NSW)). The effect of 43A of the Civil Liability Act 2002 (NSW) was to require MTH to show that the State’s exercise of, or failure to exercise, such a power is in the circumstances so unreasonable that no authority having the special statutory power in question could properly consider the act or omission to be a reasonable exercise of, or failure to exercise, its power. MTH failed to discharge the onus in respect of any aspect of the case brought against the State.

Transport for NSW v Hunt Leather Pty Ltd; Hunt Leather Pty Ltd v Transport for NSW (2024) 115 NSWLR 489; [2024] NSWCA 227; Della Franca v Lorenzato; Burwood Council v Lorenzato [2021] NSWCA 321; (2021) 250 LGERA 136, applied.

1. As to the adoption case, it was not unreasonable for the State to consider that an adoption order was unnecessary or that a contested adoption request (in spite of the appellant’s birth mother’s wishes) could disrupt the equilibrium which existed for many years between MTH and the Phelans and provoke her intervention. By the time MTH’s birth mother died, it was not unreasonable for the State to put the question of MTH’s adoption by the Phelans on hold: [163] (Adamson JA).

Re S and the Adoption Act 2000 (NSW) (2006) 68 NSWLR 61; [2006] NSWSC 1062; Mace v Murray (1955) 92 CLR 370; [1955] HCA 2; Re B & the Adoption of Children Act 1965 [1979] 2 NSWLR 915; Re an Infant, K [1973] 1 NSWLR 311, applied.

1. As to the placement case, it was not unreasonable for the State to consider the Crofts to be suitable since they lived in relative proximity to the Phelans, thereby increasing the prospects of a reconciliation between MTH and Mr Phelan. There was no suggestion that the State was aware at any time until the prosecution of Mr Croft that he was violent or sexually abusive. The investigations and enquiries which the State performed in relation to the Crofts did not reveal any risk of harm in the placement: [184], [185] (Adamson JA).

2. As to the vicarious liability case in respect of the officers of the Department, there was no act or omission alleged against them which could found a case against the State. As to the vicarious liability case in respect of Mr Croft’s conduct towards MTH, the State was not liable for that conduct as Mr Croft was not an employee of the State.

Bird v DP [2024] HCA 41; (2024) 98 ALJR 1349, cited.

MTH’s challenge to the judgment in favour of Mrs Croft

1. The appellant’s evidence is not capable of establishing that Mrs Croft is liable for failing to prevent or report the abuse for two main reasons. First, the appellant did not give any evidence that Mrs Croft saw Mr Croft assaulting her, whether sexually or otherwise. Secondly, the duty of care which Mrs Croft owed to the appellant did not require her to do anything about an allegation of that nature in circumstances where the appellant, shortly after the allegation was said to have been made, was no longer in the care of the Crofts: [211]-[214] (Adamson JA).

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited.

MTH’s challenge to the primary judge’s assessment of damages

1. The primary judge assessed damages in the event the findings on liability were overturned by this Court. The assessment was set aside and damages reassessed because the finding that no pain and suffering had been suffered in the period of almost thirty years after the abuse because MTH had, on her own evidence, suppressed it was not open. The assessment was also flawed because it was affected by the primary judge’s assessment of MTH’s credibility and reliability which disregarded the corroborative effect of the convictions.

2. Aggravated damages awarded because of the cruel, violent and degrading manner of the wrong.

State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57, cited.

1. A buffer for past and future economic loss was appropriate because the evidence did not permit a more precise award to be made.

Black v Young [2015] NSWCA 71, cited.

JUDGMENT

1. MITCHELMORE JA: I agree with Adamson JA.

2. ADAMSON JA: The appellant, MTH, appeals against the judgments entered in favour of the first respondent, the State of New South Wales (the State), the second respondent, the estate of the late Geoffrey Croft (the estate), and the third respondent, Sandra Croft, by Cavanagh J (the primary judge) on 28 November 2024. She also appeals against the costs orders made that she pay the State’s costs on the ordinary basis up to and including 30 July 2020 and on an indemnity basis thereafter and that she pay the costs of the estate and Mrs Croft on the ordinary basis.

3. The notice of appeal contains 33 grounds of appeal. It is not necessary that they be addressed separately since, as submitted on behalf of the estate, they fall into seven discrete categories as follows:

1. alleged failure to allow evidence from the criminal proceedings and tendency evidence to be admitted (grounds 1, 4, 26, 27 and 29);

2. alleged failure to find that Mr Croft, and since his death his estate, liable for the alleged tortious conduct of Mr Croft (ground 25);

3. alleged failure to find that the estate abused the process of the Court by disputing that he sexually assaulted the appellant;

4. other alleged failures relating to the admission or rejection of evidence (grounds 2, 5-19, 21, 23, 24 and 27);

5. alleged erroneous assessment of damages (ground 28);

6. alleged errors with respect to costs orders (grounds 17, 20, 28 and 30-32); and

7. other miscellaneous errors (grounds 3, 22, 29 and 33).

4. For the reasons given below, I consider that the appeal in respect of the estate ought be allowed and judgment entered in favour of the appellant against the estate with costs. I also consider that the primary judge’s assessment of damages was erroneous and can be reviewed by this Court. The appeals against the State and Mrs Croft ought be dismissed.

Introduction

5. MTH’s claim in the Court below was for damages in tort arising from events which occurred while she was a ward of the State. MTH was born in August 1962 and became a ward of the State in 1967 when she was four years old. Shortly after becoming a ward she was placed with foster parents, Mr and Mrs Phelan, who wanted to adopt her. However, when MTH was 16, Mr and Mrs Phelan’s circumstances changed and she was moved from the Phelan household and placed with short-term foster parents, Mr and Mrs Croft.

6. Mr Croft was subsequently convicted of five offences committed against MTH during the period 1 February 1979 and 30 April 1980: two offences of rape contrary to s 63 of the Crimes Act 1900 (NSW) and three offences of assaulting a female over the age of 16 years and committing an act of indecency against her contrary to s 76 of the Crimes Act. In the same proceedings, Mr Croft was also convicted of four sexual assaults against RS, who with his brother had been fostered by the Crofts for a period which included the period between 17 November 1976 and 1 October 1977. Mr Croft’s appeal against his convictions was dismissed by the Court of Criminal Appeal: Croft v R [2021] NSWCCA 146. He later applied for special leave to appeal to the High Court. However, as he died on 22 April 2022 before the application was determined, the High Court dismissed the application on 16 June 2022 (Croft v The Queen [2022] HCASL 120), pursuant to r 41.08.1 of the High Court Rules 2004 (Cth), as it was no longer possible to grant the relief he sought: Singh v The Queen [2020] HCA 25; (2020) 94 ALJR 714.

5. MTH alleged that the State:

1. breached the non-delegable duty which it owed to her by:

1. failing to complete the adoption process with the Phelans (the adoption case);

2. placing her with the Crofts and failing to monitor, supervise or check-up on her while at the Crofts or for the period after she left the Crofts (the placement case);

3. failing to foster a closer relationship between her and her siblings or to inform her of her mother’s death (the family reunion case); and

2. was vicariously liable for the conduct of its welfare officers and of Mr Croft (the vicarious liability case).

8. MTH alleged against Mr Croft that he committed the intentional tort of assault against her by sexually and physically assaulting her while she was in his foster care. MTH alleged against Mrs Croft that she knew of the abuse perpetrated against RS, a boy who was in the Crofts’ foster care at least between 17 November 1976 and 1 October 1977, and that, notwithstanding this knowledge she failed to take steps to stop or prevent the abuse on her by Mr Croft. MTH also alleged that Mrs Croft should have protected her from Mr Croft when she told her of the assaults.

9. The primary judge found that none of the allegations of assault had been made out as he did not accept MTH’s evidence as to the assaults and RS had not been called. The primary judge was not satisfied that either the State or Mrs Croft was in breach of the duties of care which they owed to MTH. His Honour entered judgment for all defendants accordingly.

10. The initial difficulty with the primary judge’s findings and orders was that it appears that at an early stage of the proceedings, his Honour inferred that MTH was not seeking to rely on the convictions against Mr Croft to prove that he had committed the offences for which he was convicted. Additionally, it appears that his Honour was under a misapprehension (which appears to have been engendered and supported by the respondents’ legal representatives) that a conviction could not prove that the offence had been committed by the offender. This misapprehension affected not only MTH’s claim against the estate (which could have been established by the certificate of conviction alone, there being no probative evidence directly to the contrary) but also MTH’s allegation that Mr Croft had also sexually assaulted RS. Because this error has the potential to affect the entire trial (since it inevitably affected the trial judge’s assessment of MTH’s reliability and credibility), it will be addressed first.

The probative value of the convictions against Mr Croft for offences against MTH and RS

11. The certificate of conviction, which certified that Mr Croft had been convicted of the offences referred to above against MTH and RS while they were in the foster care of himself and his wife, was sufficient to establish not only the fact of conviction but also the elements of each offence. For the reasons given below, this is the effect of ss 91, 92 and 178 of the Evidence Act 1995 (NSW). The appellant tendered an email from the police officer who was involved in the criminal proceedings, Detective Acting Sergeant Robinson, which listed the nine charges against Mr Croft involving MTH and RS and noted that a conviction was proved in respect of them. However, the appellant did not tender the certificate of conviction in the Court below for reasons which will be addressed later.

12. Part 3.5 of the Evidence Act relevantly provides:

Part 3.5 Evidence of judgments and convictions

91   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.

Note—

Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

92   Exceptions

…

(2) In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence, not being a conviction—

(a)     in respect of which a review or appeal (however described) has been instituted but not finally determined, or

(b)     that has been quashed or set aside, or

(c)     in respect of which a pardon has been given.

(3)     The hearsay rule and the opinion rule do not apply to evidence of a kind referred to in this section.

93   Savings

This Part does not affect the operation of—

(a)     a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation, or

(b)     a judgment in rem, or

(c)     the law relating to res judicata or issue estoppel.

13. Section 178 of the Evidence Act provides:

178   Convictions, acquittals and other judicial proceedings

(1)     This section applies to the following facts—

(a)     the conviction or acquittal before or by an applicable court of a person charged with an offence,

(b)     the sentencing of a person to any punishment or pecuniary penalty by an applicable court,

(c)     an order by an applicable court,

(d)     the pendency or existence at any time before an applicable court of a civil or criminal proceeding.

(2)     Evidence of a fact to which this section applies may be given by a certificate signed by a judge, a magistrate or registrar or other proper officer of the applicable court—

(a)     showing the fact, or purporting to contain particulars, of the record, indictment, conviction, acquittal, sentence, order or proceeding in question, and

(b)     stating the time and place of the conviction, acquittal, sentence, order or proceeding, and

(c)     stating the title of the applicable court.

(3)     A certificate given under this section showing a conviction, acquittal, sentence or order is also evidence of the particular offence or matter in respect of which the conviction, acquittal, sentence or order was had, passed or made, if stated in the certificate.

(4)     A certificate given under this section showing the pendency or existence of a proceeding is also evidence of the particular nature and occasion, or ground and cause, of the proceeding, if stated in the certificate.

(5)     A certificate given under this section purporting to contain particulars of a record, indictment, conviction, acquittal, sentence, order or proceeding is also evidence of the matters stated in the certificate.

(6)     In this section—

acquittal includes the dismissal of the charge in question by an applicable court.

applicable court means an Australian court or a foreign court.

Note—

Section 91 excludes evidence of certain judgments and convictions.

(Emphasis added.)

14. Section 178 provides that a certificate of conviction is also evidence of the particular offence. Section 92 only applies to civil proceedings and therefore does not permit a certificate of conviction to be used in subsequent criminal proceedings to prove guilt: Chevalley v Industrial Court of New South Wales (2011) 82 NSWLR 634; [2011] NSWCA 357 at [56]-[58] (Bathurst CJ, Allsop P, Beazley, Basten JJA and Sackville AJA agreeing).

15. As set out above, s 91 provides that evidence of a decision is not evidence of a fact in issue in the proceedings and the decision must not be used to prove that fact. However, s 92 excepts certain facts, including convictions and orders, unless there is an appeal against the conviction which has been instituted and not finally determined.

16. Mr Tierney, who appeared for Mrs Croft, submitted that the certificate of conviction was not admissible because it fell within the exception to the exception to s 92(2). He argued that because Mr Croft died before his special leave application was determined on the merits, it remained an appeal which had been instituted but had not been finally determined. In the alternative, he submitted that, if a special leave application was not an appeal, it was nonetheless a “review … (however described)” within the meaning of s 92(2)(a) because the High Court, in deciding whether to grant special leave would be required to “review” the conviction which is the subject of special leave to appeal.

17. The construction of s 92 of the Evidence Act for which Mr Tierney contended must be rejected. A special leave application is not an appeal: United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 at [30]-[31] (Gleeson CJ, McHugh and Gummow JJ). Nor is it a review. The word “review” in this context is apt to refer to, for example, a review by way of application under Part 7 of the Crimes (Appeal and Review) Act 2001 (NSW). However, even if it were either an appeal or a review, it was finally determined when it was dismissed by the High Court. Further, the construction for which he contended would be at odds with the evident purpose of the section since its effect would be that a certificate of conviction could never be proved in a civil trial to establish the commission of the offences certified in the certificate if the perpetrator died while an application for special leave or an appeal had not been determined prior to the perpetrator’s death.

18. Sections 92 and 178 were enacted to overcome the common law rule that convictions were not admissible to prove the commission of offences. This rule was criticised by the Australian Law Reform Commission (ALRC) in Evidence (Interim Report No 26, 1985) at 441:

385. The Rule. At common law, a conviction is not admissible in other proceedings to prove the facts on which it is founded ie guilt of the offence charged. The common law rule applies in New South Wales, Victoria, Western Australia and Tasmania. It is open to a number of criticisms.

• Excluding Probative Evidence. The rule is unsatisfactory because fundamentally a conviction deserves recognition as evidence that was more likely to be right than wrong that the person was guilty. A conviction is the result of the judicial procedure, designed over centuries to put the material needed to make a correct decision before the court which has a legal duty to form an accurate opinion on the question at hand. To admit this evidence would not conclude the issue but would make available evidence of high probative value. The probative value of a conviction lies in the high standard of proof that must be satisfied before a finding of guilt can be made. In Hollington v Hewthorn itself, a higher degree of carelessness was required to support a finding of criminal negligence than was required in the civil action in negligence. To exclude evidence of convictions is illogical and ‘scarcely comprehensible to the ordinary intelligent layman’. The common law rule can also lead to injustice where, as in Hollington v Hewthorn itself, a key witness dies after having given the relevant evidence in an earlier proceeding. If evidence of the conviction is not admitted, the plaintiff is forced to abandon his action, which is hardly a just or sensible result.

• Cost and Waste of Time. The common law rule can also lead to a waste of time and expense in duplicating proceedings, because it may lead to an issue being twice fully litigated; eg, in defamation proceedings, where the statement complained of is that the plaintiff is guilty of an offence for which he has been convicted. The defendant in setting up a defence of truth, is forced to reprove de novo the guilt of the plaintiff, because the plaintiff’s conviction is inadmissible to prove his guilt.

(Emphasis added and footnotes omitted.)

19. Thus, by reason of s 178 of the Evidence Act, MTH was entitled to rely on the certificate of conviction to establish, first, that Mr Croft had raped her twice and indecently assaulted her three times during the period specified; and, second, that Mr Croft had sexually assaulted RS four times during the period specified.

20. This construction of ss 91, 92 and 178 of the Evidence Act is well established by authority and reflects the purpose of the amendments to these provisions which arose as a result of recommendations made by the ALRC. The utility of a certificate of conviction being able to be used to prove not only the conviction but also the fact of the offence, its date (or period) and the identity of the offender and victim is obvious. These provisions have been used principally in forfeiture cases (where there is a question whether a beneficiary can inherit under a will because of an allegation that the beneficiary has murdered the testator: a certificate of conviction of murder is sufficient to prove that matter); disciplinary cases (where the practitioner has been convicted of an offence); and, as in the present case, claims for damages by a victim of crime against the perpetrator, following the perpetrator’s conviction.

21. In Gonzales v Claridades (2003) 58 NSWLR 188; [2003] NSWSC 508, the plaintiff’s parents and sister had been killed in their own home. His father was the last to die. His parents made a joint will which, in the events that happened, appointed the defendant as executrix. The plaintiff, Sef, who was charged with the murder of the three family members, sought an advance from the estate to pay the legal costs of defending the criminal proceedings. Campbell J refused the application on the basis that if he were convicted of the murder of his father, the certificate of conviction could be tendered in the civil proceedings as proof that he murdered his father and he would therefore forfeit any benefit he would otherwise have inherited under his father’s will. His Honour explained the effect of s 92 of the Evidence Act as follows:

66 Section 92(3) thus removes the basis for continuing to apply Hollington v F Hewthorn & Co Ltd in this State in civil proceedings where the person convicted is a party, or a party through or under whom a party claims, and where none of the exceptions in section 92(2)(a)-(c) applies. The effect of section 92(2) is to impose an evidentiary onus on anyone who disputed the correctness of the conviction to produce evidence that it is incorrect …

67   Thus, if the outcome of Sef’s trial were to be a conviction, that conviction would be admissible in any civil proceedings to which he was a party in which there was an issue about whether he had forfeited the benefit under his father’s Estate. However anyone who was contending, in such proceedings, that a forfeiture had occurred would still bear the legal onus of so proving, and it would be open to Sef to call evidence, if he wished, with a view to showing that any such conviction was erroneous.

22. This Court agreed with Campbell J’s reasons and dismissed the appeal: Gonzales v Claridades (2003) 58 NSWLR 211; [2003] NSWCA 227 at [16] (Mason P, Beazley JA and Foster AJA agreeing).

23. Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 (Sukkar) concerned an application to remove a practitioner from the roll on the basis of his conviction for importing prohibited drugs. This Court (Hodgson JA, Tobias JA agreeing) referred to Gonzales v Claridades in the context of ss 91 and 92 of the Evidence Act. It set out the limits of what can be proved by a certificate of conviction at [9]:

The conviction of the opponent is evidence of the elements of the offence with which he was convicted, but not of the detailed facts found by the sentencing judge or by the Court of Criminal Appeal dealing with his appeal: Evidence Act 1995 (NSW) ss.91 and 92, Gonzales v. Claridades [2003] NSWSC 508, 58 NSWLR 188. The detailed facts set out in the Court of Criminal Appeal’s judgment R v. Sukkar [2005] NSWCCA 54 may have some relevance to the opponent’s reputation, but cannot support findings by this Court as to what the opponent actually did, beyond the bare elements of the offence with which he was convicted.

(Emphasis added.)

24. Sukkar was followed in the Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 (Livanes), a similar application where the practitioner had been convicted of ten counts of defrauding the Commonwealth. McColl JA (Campbell and Meagher JJA agreeing) said at [9]:

The certificate of conviction is evidence of the particular offences in respect of which the opponent was convicted and of the sentences passed upon him as well as of the particulars of the offences: s 178(3) and (5) Evidence Act. However the sentencing remarks are in a different category.

25. In Edwards v State Trustees Limited (2016) 54 VR 1; [2016] VSCA 28, the application of the forfeiture rule arose following the conviction of the beneficiary for the manslaughter of the testator. Santamaria JA referred to ss 91, 92 and 178, Sukkar and Livanes and said, at [116]:

… Even if no regard is paid to the propositions of fact contained in the Sentence Reasons, there was evidence before the trial judge, upon the filing of the certificate, that the appellant had satisfied each of the elements of the crime of defensive homicide. …

26. In Osborne v Butler (2024) 73 VR 386; [2024] VSCA 6 the applicant was convicted in 2017 of two counts of sexual penetration of the respondent, who was then 15 years old. The respondent commenced proceedings against the applicant claiming damages for the assault and battery constituted by the offending. She relied on the applicant’s conviction of these offences to establish his liability. The Victorian Court of Appeal addressed the common law rule that evidence of a conviction was admissible only to prove the fact of the conviction but not the facts on which the conviction was based (Hollington v R Hewthorn & Co Ltd [1943] KB 587). It also referred to the recommendation by the ALRC that the Evidence Act should be amended to provide that evidence of convictions was admissible to prove the facts on which they are based ([24]-[29]).

27. The Court held that the amendments that were made as a consequence of these recommendations displaced the common law rule and said:

31 In its terms, s 92(2) only states that evidence of a conviction may be admitted and used, without identifying the specific use to which that evidence may be put. As we have seen, evidence of a conviction could already be admitted in a case where it was to be used as proof of the fact of conviction; such use is consistent with s 91(1). The ‘exception’ in s 92(2) plainly has a wider purpose, namely to enable that which s 91 would otherwise forbid. In other words, in denying the applicability of s 91, the effect of s 92(2) is that evidence of a prior conviction within s 92(2) is admissible to prove the existence of a fact that was in issue in the criminal proceeding. That is confirmed by s 92(3), which denies the applicability of the statutory hearsay and opinion rules. In other words, that provision specifically displaces the reasoning in Hollington.

…

34 It is important also to note the limitations of s 92(2). It concerns evidence that a person has been convicted of an offence. The exception to s 91 does not extend to evidence of other decisions or findings in the criminal proceeding. In particular, it does not extend to the sentence, sentencing remarks or evidence given in the criminal proceeding. It is the conviction itself which may be admitted, and treated as evidence of the existence of facts in issue in the criminal proceeding, namely the elements of the offence charged.

…

38 The judge was correct to find that, once the respondent adduced evidence of the convictions, the practical effect of s 92 was to impose on the applicant an evidentiary onus to prove that he was incorrectly convicted. The judge held that the applicant had not identified any evidence to rebut the fact of his conviction, noting also that the conviction had been upheld in this Court. He also held that the applicant did not at any stage ‘provide credible evidence to rebut or challenge the factual matters the subject of the conviction’. Accordingly, he accepted that the applicant committed the sexual assaults on the respondent.

…

40   … in so far as the judge observed that the applicant did not provide credible evidence to ‘rebut or challenge the factual matters the subject of the convictions’, that suggests a correct understanding of the operation of the provision.

(Footnotes omitted.)

28. In Dajani v Dajani [2025] FedCFamC1A 28, the appellant (the husband) was convicted of multiple offences of sexual assault against his daughter prior to the final hearing of the Family Law Proceedings against his wife. The trial judge inferred that these assaults caused or contributed to the daughter’s difficult behaviour, which made the wife’s contribution as a parent more arduous. The Full Court (McClelland DCJ, Aldridge and Jarrett JJ) said at [27]:

It is therefore perfectly permissible to draw from the Certificate of Conviction in this matter that the appellant was convicted of many sexual assaults of his daughter over a long period when she was a child and also when she was an adult. The elements of the offences, and those alone, are sufficient for that purpose.

29. These decisions establish that a certificate of conviction is admissible to prove the fact of conviction and the fact of the commission of the offence, being the fact of each element of the offence, its date and the identity of the offender and, if there be one, the victim. Thus, the convictions of Mr Croft for the five offences against MTH were admissible to prove that he had raped her twice and committed three indecent assaults against her in the period 1 February 1979 to 30 April 1980 when she was 16 or 17 years old.

30. These decisions also establish that other documents containing facts relating to the convictions, including those referred to in the sentencing remarks, are not admissible to prove the facts stated in them. Thus, while MTH could prove that she had been raped and indecently assaulted by relying on the convictions of Mr Croft for those offences, she could not, for example, use the following passage from the sentencing remarks of McLennan SC DCJ to show that Mrs Croft knew about Mr Croft’s offending behaviour against RS (which she denied in cross-examination):

Apart from the sexual violence, to be described shortly, I am also satisfied, beyond a reasonable doubt, that [RS] was the subject of other degrading and humiliating conduct, which included being urinated upon by the offender and having the complainant and his brother strip naked and run around inside the house, while the offender’s wife was observing.

31. These reasons are sufficient to address the grounds relating to the admission or rejection of evidence in relation to matters arising in the criminal prosecution of Mr Croft (grounds 26, 27 and 29).

The proceedings in the Court below

The stay application

32. On 15 June 2023, Mrs Croft filed a notice of motion seeking a permanent stay of the proceedings as against her. The application was heard on 4 September 2023 by Garling J, orders were made by his Honour on 8 September 2023 (dismissing the application and ordering Mrs Croft to pay MTH’s costs of the application) and reasons were published on 15 September 2023: MTH v State of New South Wales [2023] NSWSC 1124. At that stage, MTH was represented by Mr Sharpe of counsel and Carroll & O’Dea, solicitors (she was previously represented by Kelso Lawyers and Greg Walsh & Co). Garling J was unpersuaded that any prejudice which Mrs Croft would suffer would be sufficiently exceptional to warrant a permanent stay and refused Mrs Croft’s application.

33. Throughout the appeal, the appellant made reference to what Garling J had said and done in the course of case management hearings and the hearing of the permanent stay application by Mrs Croft, contending, for example, that Garling J had admitted the transcript of the criminal trial via case management and the primary judge erred in refusing to allow it as evidence in the trial. She also referred to evidence which had been adduced on the stay application. I confirm that the evidence that Garling J considered on the stay application was not, by reason of that fact, admitted in the trial itself before the primary judge. There being no indication that any rulings on evidence under s 192A of the Evidence Act were sought or made in advance of the trial, the admission of evidence in the trial was a matter for the primary judge. This Court is limited, in its consideration of the appeal, to the evidence adduced before the primary judge at the trial of the proceedings. For this reason, it is not necessary to address further the application for a permanent stay. Ground 1 has not been made out.

The tendency notice

34. MTH had solicitors acting for her in the proceedings in the Court below until relatively shortly before the hearing. Her then solicitors served a tendency notice dated 3 November 2023 on the respondents in which they identified Mr Croft’s alleged tendency as follows:

The tendency sought to be proved is the tendency of Geoffrey Croft:

a.    To act in a particular way, namely:

i.    To engage in sexually inappropriate and sexually degrading behaviour directed towards children in his care from time to time both privately and in the presence and/or within earshot of the third defendant;

ii.    To engage in behaviour that breached physical boundaries of appropriateness with children in his care both privately and in the company of the third defendant;

iii.    To engage in sexual abuse of children in his care;

iv.    To engage in physical abuse of children in his care both privately and in the company of the third defendant; and

v.    To gain sexual gratification from engaging in sexually inappropriate and sexually degrading behaviour directed towards child in his care.

35. The evidence identified in the notice to be relied on in support of the tendency comprised the police statements of RS and his brother PS which had been prepared for the criminal prosecution of Mr Croft, and her previous solicitors had included them in the Court book. However, objection was taken to them and the primary judge ruled that the statements were not admissible unless their makers were called to give evidence. Although the appellant took issue with this ruling on appeal (ground 4), his Honour’s rejection of the statements from the criminal trial on the basis of hearsay was correct. The way in which the objection to this evidence was put, along with the appellant’s further ground of appeal relating to her efforts to have RS attend and give evidence is addressed below.

36. The appellant’s solicitors do not appear to have obtained a certificate of Mr Croft’s convictions in respect of the five offences against MTH and the four offences against RS and did not refer to the convictions in the tendency notice. The appellant herself was apparently ignorant of this means of proof, which would, to borrow the words extracted above from the ALRC report, amount to “evidence of high probative value”, which was readily available to her. This is also returned to below.

The conduct of the trial

37. In her submissions in this Court, the appellant contended that it was unfair that she was obliged to submit herself for cross-examination on her medical records on the first day of the hearing (after objections to evidence had been dealt with). She said that this procedure took her by surprise. As she was the plaintiff in the Court below, her evidence was adduced first. Accordingly, each of the defendants’ counsel had a right to cross-examine her, including by reference to documents which had been produced in answer to subpoenas issued at the request of other parties. The appellant also submitted that access ought not to have been given to the other parties to her medical records. Having regard to the issues in the case, procedural fairness to the defendants in the Court below required that they be given access to all non-privileged documents, including the appellant’s medical reports. For these reasons, ground 11, which alleged that the primary judge had denied procedural fairness by allowing the second respondent to engage in what the appellant described as excessive questioning on unrelated or irrelevant topics, has not been made out.

The matters disclosed in the primary judge’s reasons

38. The appellant also submitted that the publication of the reasons of the primary judge, in substance, amounted to an invasion of her privacy because they disclosed “distressing events in a childhood matter”. The appellant’s response is an understandable one for a litigant in person who may not have appreciated the extent to which litigation exposes the private matters of litigants, both in open court and in the reasons for decision. The use of a pseudonym is designed to protect her from identification as the victim of a sexual assault. However, the primary judge was obliged, as this Court is obliged, to set out the reasons for decision, which necessarily included a consideration of the evidence.

The effect of the Civil Liability Amendment (Child Abuse) Act 2021 (NSW)

39. The appellant made several submissions which referred to the Civil Liability Amendment (Child Abuse) Act 2021 (NSW). That Act has the effect of empowering a court to set aside judgments and settlements of claims for child sex abuse in circumstances where there were legal barriers to the person being fully compensated through a legal cause of action. As the appellant had not previously resolved proceedings or entered judgment, the Act did not benefit her in this respect.

The probative value of Mr Croft’s convictions in respect of MTH and RS

40. The relevance of Mr Croft’s convictions was first raised by the primary judge with Mr O’Neill, who appeared with Ms Robertson in the Court below and alone in this Court, in the following passage:

HIS HONOUR: Now could I ask one question then? [MTH] tells me that Mr Croft was convicted of a crime against her, is that right?

O’NEILL: That’s so.

HIS HONOUR: Do you accept that for the purposes of these proceedings that abuse of a type or nature described by [MTH] occurred at the hands of Mr Croft?

O’NEILL: We have pleaded back in the defence that that finding was made.

HIS HONOUR: Okay. So what I need to understand is, for [MTH’s] benefit obviously because she’s going to be giving evidence, are you challenging aspects of her evidence contained in her statement as to the nature and extent of the abuse, the timing, or generally not challenging the abuse that she sets out?

O’NEILL: I make no challenge in respect of the abuse.

41. The primary judge then raised the same matter with Mr Andrews, who appeared for the estate in the Court below and in this Court, as follows:

HIS HONOUR: Okay, thank you. Mr Andrews, what’s your position in respect of the same question?

ANDREWS, We don’t accept that the abuse took place based on the instructions that we have. We do accept, as we set out in the position paper, that he was convicted.

…

HIS HONOUR: … What’s the basis on which you can, as you represent the estate so we’ll call it Mr Croft, you can purport to say that he didn’t abuse the plaintiff in circumstances in which he’s been found guilty of doing it in another court?

ANDREWS: Because Mr Croft always maintained that he had not carried out any of the abuse.

HIS HONOUR. Right.

ANDREWS: He maintained, and there will be evidence called in relation to this, he maintained that from the first moment it was raised, and he continued to maintain that right up until his death. Now we will call certain evidence consistent with the maintaining of that position.

42. Mr Tierney appeared for Mrs Croft in this Court and in the Court below. When asked what his client’s position was with respect to the offences committed against MTH, he said that the effect of ss 91 and 92 was that evidence of the convictions was not evidence of the underlying elements of the offences. This was consistent with the position he took in this Court (as appears from the summary of his submissions set out above).

43. The following exchange occurred on 22 July 2024 (the first day of the trial):

TIERNEY: … in this case, your Honour, there is an exception in s 92 in civil proceedings for and with respect to a prior criminal conviction, but if your Honour looks at subs (2), your Honour will see in sub-para (a) a carve-out from that exception, “in respect of which a review or appeal (however described) has been instituted but not finally determined”. The situation, your Honour, and I think it’s quite straightforward, is that an application for special leave was filed on behalf of Mr Croft but he passed away before the special leave hearing could be considered and two justices of the High Court then dismissed the application under the rules, but there was no final determination …

HIS HONOUR: I think the answer is bearing in mind the plaintiff I think has included in her statements that which she says occurred-

TIERNEY: Yes.

HIS HONOUR: -she’s not relying on evidence of the conviction to prove the fact.

TIERNEY: No, no, I don’t-

HIS HONOUR: So we don’t need to go down that road. The only issue I have is whether in circumstances in which, and this really applies to Mr Andrews’ client [the estate] rather than I would have thought your client, whether in circumstances in which the person who’s been convicted of the criminal offence, in this case, as I said, well call it Mr Andrews’ client, can seek to raise in civil proceedings that the events didn’t occur. But anyway, as I presently understand, that it wouldn’t bind your client, if I put it that way, Mr Tierney.

(Emphasis added.)

44. It appears from this exchange that the primary judge misapprehended the fact and may have misapprehended the law. First, his Honour misapprehended the fact by incorrectly inferring from the circumstance that MTH had put on evidence of Mr Croft’s offending conduct that she did not rely on the conviction to prove the conduct (without having checked this matter with MTH). Secondly, his Honour misapprehended the law by apparently accepting Mr Tierney’s submission that MTH could not use the conviction to establish that the offending conduct had actually occurred in any event because he had died before the special leave application was determined.

45. Further, the primary judge was evidently concerned, as appears from the last passage in the extract, about whether the estate was estopped by the conviction from denying the conduct. That question occupied a substantial amount of time in the hearing and was addressed at length in the reasons. Section 93(c), which exempts res judicata and issue estoppel from the operation of Part 3.5 of the Evidence Act, was neither raised by the parties nor addressed by the primary judge. In these circumstances, it is not necessary to address whether s 93(c) also includes the category of abuse of process which involves the re-litigation of an issue already decided against the party. In any event, the Evidence Act allows a certificate of conviction to be admitted as proof of the elements of the offence but does not provide that it is conclusive evidence.

46. The only evidence tendered by the estate or Mrs Croft to directly dispute the commission of the offences was evidence of Mr Croft’s denials when first accused of them. This evidence was admissible under s 63 of the Evidence Act because Mr Croft, being dead, was unavailable to give evidence. However, it was of low probative weight as it was self-serving and therefore did not amount to an admission (which would have been admissible as an exception to the hearsay rule). Whether or not the estate of Mr Croft was estopped from challenging the fact of the offending, the estate adduced no contrary evidence to rebut the proof of the elements of the offences constituted by the convictions, save, as referred to above, the first-hand hearsay evidence of his denials. While the convictions were not conclusive proof that the offences were committed, in the absence of direct evidence to the contrary, they were sufficient to prove the fact of the offending conduct.

47. The State objected to the convictions of Mr Croft for offences against RS being used to establish the fact of the offences on the basis of the hearsay rule and also the alleged tendency of Mr Croft, referring his Honour to s 91 of the Evidence Act but not s 92. The primary judge upheld the objection and provided the following explanation of the law to MTH:

So what I’m going to do is strike out because section 91 of the Evidence Act says you can’t have - and I say this in general lay terms you will all understand for the benefit of [MTH] - you can’t have as evidence the fact that someone has been …convicted of a criminal proceedings and whilst tendency evidence can be adduced, it would be obviously subject to the witness being available for cross-examination.

48. Although his Honour’s explanation of s 91 was correct, his Honour did not refer to the exception regarding evidence of a conviction in s 92 of the Evidence Act. This error was repeated in several rulings made by the primary judge, who continued to inform MTH that “evidence of the earlier conviction is not evidence of the fact”. MTH continued to seek to rely on Mr Croft’s convictions to prove the elements of the offences he committed against her and RS. The primary judge continued to misstate the law, as is evident from the following passage:

HIS HONOUR: Okay, well I think there’s no dispute in this case that Mr Croft was convicted for offences against you and sentenced to a term of imprisonment arising out of those offences. I think there’s no dispute I think that he was convicted of offences in respect [of RS] and sentenced to a term of imprisonment, so you don’t have to prove that through the police officer. But as you heard at the outset of the case, the fact that someone has been convicted is not evidence of the fact, it’s not evidence that the abuse actually - because the Evidence Act precludes a party simply relying on the conviction, so there’s no dispute as to the fact of the conviction. I’m just trying to help you so you don’t go to a lot of trouble for no real reason.

(Emphasis added.)

49. The primary judge said further on 25 July 2024 (the fourth day of the trial):

This is a case which involves complex factual and legal issues. That requires me to determine matters of fact which are very much in dispute and matters of law which are very much in dispute.

…

Mr Andrews [counsel for the estate] raises as a contest whether or not you suffered any abuse at the hands of Mr Croft. They’re matters of fact I have to determine.

The fact that he was convicted is not evidence of the fact in this case.

(Emphasis added.)

50. On Monday 29 July 2024, (the sixth day of the trial), the topic of the probative value of the convictions was revisited, including in the following exchange:

PLAINTIFF: Well I thought it would be relevant for this case. I mean, I feel like - I do feel like this has been another case all over again. Everything that happened in that criminal case it seems to have gone out the window and we’ve started again in the civil case, including my right to establish the full aspect of this claim, and that is the fact that there’s two other victims - one of which it was - in attendance at the criminal case, and it was actually discovered, by way of me coming forward, that those other victims were abused first in timeline.

…

PLAINTIFF: So it is very relevant for my case that that be established … and I’m being blocked from having that established in this case.

HIS HONOUR: Well you are not, [MTH], but anyway-

… [J]ust to be clear for your benefit, [MTH], the fact that the defendants agree that Mr Croft was convicted, in respect of offences against RS and against you, is not agreement as to the fact of them occurring, because that’s not the evidence, but they agree he was convicted.

(Emphasis added.)

51. Because of the primary judge’s rulings, MTH tried to persuade RS, whom she did not know except through having been complainants in the same criminal trial against Mr Croft, to give evidence at the hearing. He refused to come. The primary judge refused MTH’s request that RS be subpoenaed on the ground that insufficient notice had been given to RS and that MTH had been unable to ascertain how he could be served (this matter is addressed in more detail below).

51. The primary judge confirmed again on 31 July 2025, the seventh day of the trial, that the following matters were not in dispute:

HIS HONOUR: Okay. It’s not in dispute that you came forward - so can everyone confirm this if I’m wrong? It’s not in dispute you came forward at some point in time and reported the allegations against Mr Croft to the police. It’s not in dispute that following on you reporting the allegations against Mr Croft, the police carried out inquiries of DoCS, obtained the address of [RS], interviewed him and obtained information from him which led to Mr Croft being charged with offences against you and against [RS], right?

It’s not in dispute that Mr Croft was convicted of offences against you and [RS]. It’s not in dispute that Mr Croft was sentenced to a term of imprisonment and sadly died in gaol. It’s not in dispute that … Mr Croft always maintained his innocence and appealed [sic] all the way to the High Court about that. It’s not in dispute that the High Court proceedings were dismissed following his death. Okay?

None of those things are in dispute in this case so you don’t have to worry about calling any further evidence to try and prove these matters. Everyone else agree with that?

53. Counsel for the defendants indicated that they agreed with this summation of the matters which were not in dispute. MTH continued to reiterate the importance of the convictions to the proceedings. On 31 July 2024, she said:

All I’m saying though is that with the case, one of the things that does need to be kept relevant and I’ve had to insist on relevance the entire time is that the conviction occurred in 2019, the civil case commenced early 2020. That was two years before Mr Croft passed away. … So just so you understand that you know, it’s always meant to be a damages claim and it was started on the basis of a criminal convicted who was still in gaol.

(Emphasis added.)

54. In the pre-hearing written submissions for the estate dated 16 July 2024, Mr Andrews confirmed his agreement that Mr Croft had been convicted, his appeal to the Court of Criminal Appeal had been dismissed and that, after his death, his application for special leave to appeal to the High Court was dismissed. He submitted:

12.    The second defendant denies that Geoffrey Croft committed acts of abuse or sexual abuse upon the plaintiff and accordingly the second defendant maintains that the plaintiff is not entitled to a verdict [sic, judgment] in her favour against the second defendant.

13.    In the alternative, should the court find that Geoffrey Croft had committed abuse and/or sexual abuse upon the plaintiff at the relevant time pleaded and in the manner pleaded in the statement of claim (both of which are denied) then the plaintiff would be entitled to recover damages assessed on common law principles.

14.    The second defendant however maintains that any damages which the plaintiff may be entitled to are limited to general damages calculated having regard to what the court finds to be the acts allegedly perpetrated upon the plaintiff by Geoffrey Croft and that such damages do not give rise to a [diagnosable] psychiatric injury …

55. In the estate’s final submissions, Mr Andrews did not refer to the convictions as being evidence of the fact of the offences and submitted that MTH’s evidence of the offences was insufficient to discharge her onus, having regard to Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34.

56. In her pre-hearing written submissions dated 19 July 2024, MTH said, of her case against the estate:

The details of the abuse have been clearly documented, tested in a criminal court process with a jury and that was completed with significant conviction of Defendant 2.

The primary judge’s reasons regarding MTH’s claim against the estate

57. The primary judge relevantly found:

42   Mr Croft was charged and convicted of the following offences in relation to the plaintiff:

(1) three counts of indecent assault against a female person contrary to s 78 of the Crimes Act 1900 (NSW); and

(2) two counts of rape contrary to s 63 of the Crimes Act.

43    As the plaintiff says, following her coming forward the police carried out an investigation and at some later stage located another young person (RS) who had stayed at the Crofts’ farm before her (in 1977). He said he was a victim of physical and sexual abuse at the hands of Mr Croft when he was 12 years old. Mr Croft was charged and convicted of offences against him. Having regard to the judgments in the criminal proceedings, the abuse said to have been perpetrated on RS by Mr Croft was of an extreme nature, involving severe regular beatings particularly to the head of RS (as a 12 year old boy) by Mr Croft (as a man in his twenties) and severe sexual abuse, all committed over the one school holiday period (in 1977) when RS and PS (RS’s brother) stayed with the Crofts as a break from the orphanage. The fact of Mr Croft’s conviction for offences against RS is not in dispute in these proceedings but evidence of the conviction is not evidence of the facts behind the conviction.

44    The fact of the abuse on the plaintiff, that is the alleged conduct of Mr Croft, is in dispute in these proceedings, but the fact of the charges, the convictions, and the sequence of events leading to the charges is not.

…

48 Section 91 of the Evidence Act 1995 (NSW) precludes admission into evidence of a decision, or a finding of fact, in an Australian proceeding to prove the existence of a fact that was in issue in that proceeding. The second and third defendant objected to evidence of the conviction as evidence of the fact of the conduct/abuse. Whilst I admitted the evidence of the convictions, I did so not on the basis that it was evidence of the facts in issue.

(Emphasis added.)

58. The primary judge did not accept MTH’s evidence of the abuse perpetrated on her by Mr Croft and therefore dismissed her claim against the estate. His Honour noted that there was no direct evidence about the abuse which was directly contrary to MTH’s evidence. Nonetheless, his Honour was not satisfied that MTH was a reliable witness, including because of the evidence given by others (including TH, a regular visitor to the Croft property, and Mrs Croft) about the surrounding circumstances and because of contemporaneous departmental documents about what happened during the time she was at the Croft residence. His Honour said:

280   … My task is to assess the allegations against Mr and Mrs Croft.

281    I am unable to accept much of her evidence. Should I then just accept that the abuse occurred because there was no direct contrary evidence, that is Mr Croft did not give evidence? In my view, I should not. Having regard to my assessment of all of the evidence, I am not comfortably satisfied that the evidence of the plaintiff is reliable. I am not satisfied that the abuse complained of by Mr Croft occurred.

282   It is an important feature of these proceedings that the plaintiff bears the onus to the standard to which I have already referred. She has not discharged that onus.

(Emphasis added.)

MTH’s challenge in this Court to the finding that she had not discharged her onus of proving that Mr Croft had sexually assaulted her

59. MTH’s grounds of appeal are numerous and varied. They include complaints that MTH was denied procedural fairness. It was accepted, at least by the State, that although MTH appeared to make no challenge to the finding at [281], “by reason of her challenges to the way in which the hearing was conducted and the rulings on evidence, it is implicit that she seeks to impugn that finding”. The estate sought to defend the primary judge’s finding that MTH had not discharged the onus of proving abuse by Mr Croft by submitting that his Honour “carefully addressed the inconsistencies in the appellant’s evidence and … was entitled to find as he did that the appellant had failed to discharge her onus of proof in relation to the critical issue, namely whether the abuse had occurred”. Mrs Croft expressly accepted in her written submissions in this Court that because MTH was “a self-represented litigant, a degree of care was required by the [primary judge] to ensure that the appellant was not the subject of a miscarriage of justice because of the actions of the Court”.

60. The primary judge’s finding that MTH had not discharged the onus of proving the abuse was plainly affected by his Honour’s assumption about the way MTH was putting her case, together with his Honour’s misconception about the effect and operation of ss 91, 92 and 178 of the Evidence Act.

61. His Honour should have started with the convictions which, had a certificate under s 178 of the Evidence Act been tendered, would have amounted to prima facie evidence of the elements of each offence. To the extent to which MTH gave evidence of those elements, her evidence would have been corroborated by the certificate. There being no direct evidence to the contrary, the convictions were sufficient to discharge MTH’s onus that they occurred. Other evidence was sufficient to establish that these acts must have occurred while she was living with the Crofts and therefore while she was under the age of 18 years and in their foster care. By starting with MTH’s oral evidence and finding her an unreliable witness, the primary judge disregarded the probative weight of the convictions to prove the elements of the offence.

62. Indeed, it is difficult to conceive of an instance where the estate could displace the evidence of the convictions in circumstances where there were no witnesses to the rapes and indecent assaults and Mr Croft was unable to give evidence. However, this matter need not be further explored in circumstances where there was no direct evidence to contradict the convictions and MTH’s evidence of the rapes and indecent assaults.

63. Proof of the elements of the five offences committed against MTH was central to proof of MTH’s case against the estate and important in her case in negligence against the State and Mrs Croft. She also wished to prove that Mr Croft had committed offences against RS. As Mr Croft was tried for offences against MTH and RS together, the certificate of conviction set out all the offences of which he was convicted. The effect of ss 91, 92 and 178 of the Evidence Act was that the elements of these offences could have been readily proved by the tender of a certificate of conviction, which was admissible for that purpose. MTH as a litigant in person was not aware of the particular provisions of the Evidence Act which would produce that result but it was obviously what she was trying to achieve by her constant references to the convictions of Mr Croft for offences against her and RS.

Whether the primary judge denied procedural fairness to MTH

64. The question arises whether the primary judge denied MTH procedural fairness by not alerting her to the evidentiary pathway which the Evidence Act allowed to enable her to prove the commission of the offences by tendering a certificate of conviction.

65. While a trial judge is not permitted to give legal advice to a litigant in person (or, indeed, to any litigant) since this would compromise judicial impartiality, a trial judge may explain matters of practice and procedure for the benefit of the parties. The parameters of what is allowable are determined by reference to the circumstances of the particular case and are not readily susceptible of general statement.

66. An unrepresented party is subject to the same rules as any other litigant. The court must ensure that the rules are obeyed, subject to any proper exceptions, since to do otherwise would be unfair to the represented litigant. However, the primary judge had an obligation to ensure that the appellant did not, because of lack of legal skill, fail to claim rights or put forward legal arguments: Rajski v Scitec Corporation Pty Ltd (Court of Appeal (NSW), 16 June 1986, unrep) (Kirby P, Samuels and Mahoney JJA), cited with approval by the High Court in Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [47].

67. A judge must also be alert to a misconception exhibited by a litigant in person which may have negative forensic consequences. In Turner v Norwalk Precast Burial Systems Pty Ltd [2025] VSCA 94, the Court of Appeal in Victoria (Beach JA, Kennedy JA and Forrest AJA) allowed an appeal against the dismissal of the appellant’s case on the basis of a no case to answer submission by the defendant. It held that the trial judge erred by not enlightening a litigant in person who made it clear that he proposed to prove his case by cross-examining witnesses whose statements had been served by the defendant and who obviously did not appreciate that it was open to the defendant not to call evidence.

68. There are undoubtedly some differences between the obligations of a judge conducting a criminal trial to ensure the fair trial of an accused and the obligations of a judge conducting a civil trial. However, Basten JA in Lee v Cha [2008] NSWCA 13 applied statements of principle in criminal appeals to civil trials and said:

48   The Court was invited to assess the conduct of the trial judge in part by reference to the principles said to govern the conduct of a trial where one party is a litigant in person and not fluent in English. The relevant principles, if they can be so described, derive from the obligation of a trial judge to take appropriate steps to ensure that a party appearing unrepresented has sufficient information about the practice and procedure of the court as is reasonably practicable for the purpose of ensuring a fair trial: see, in relation to an accused in a criminal trial, MacPherson v The Queen (1981) 147 CLR 512 at 523 (Gibbs CJ and Wilson J), 534-535 (Mason J) and 546-547 (Brennan J), (Aickin J agreed with Mason J and Brennan J). Application of that principle will vary depending on the circumstances of the case and particularly as between trials with and without juries. …

49    There will be cases where a failure to provide assistance to a litigant in person will give rise to a miscarriage, so that the trial may be overturned on appeal: MacPherson provides an example. However, it is important to note that although an appearance of partiality may be said to give rise to an unfair trial, a failure to provide sufficient information to an unrepresented litigant may result in the trial miscarrying without any suggestion of bias or apprehended bias on the part of the trial judge. …

(Emphasis added.)

69. In the present case, it is not necessary to outline or seek to determine the bounds of necessary or appropriate judicial assistance to a litigant in person since, whatever those limits, it is of signal importance that a judge not positively mislead a litigant in person as to the effect of the law. The reason for this is that a litigant in person generally lacks the wherewithal to argue against a proposition of law put by the judge and may have little choice but to accept it. This is to be contrasted with the position of represented parties: legal representatives have a duty to correct any misapprehension by a judge as to the facts or the law.

70. It is not suggested that the primary judge in the present case deliberately misled the appellant. The source of the difficulties in the present case derived from the two errors that I have already identified.

71. First, the primary judge inferred and communicated to the parties that the appellant was not relying on the convictions as proof that the offences were committed (this is evident in several places in the transcript, including in the passage extracted above where the primary judge told Mr Tierney that “[the appellant is] not relying on evidence of the conviction to prove the fact”). No basis for this inference or assumption is evident from the transcript. It does not appear to arise from anything the appellant said or did. The only available inference is that the primary judge considered that, as the appellant was proposing to give evidence as to the assaults, she was not relying on the convictions as proof of them. The difficulty with this conclusion is that it can hardly be supposed that a plaintiff suing a defendant in tort on the basis of conduct which has been the subject of criminal convictions would not seek to rely on the convictions to prove the commission of the offence: such a course would be forensically irrational. A plaintiff in that situation who tenders a certificate of conviction will have the benefit that the elements of the offence are proved to a prima facie level and will also amount to corroboration of any evidence which the plaintiff might give as to the commission of the offences.

72. Second, MTH’s reliance on the convictions to prove the elements of the offences is plain from the transcript, as is her ignorance of the admissibility of a certificate of conviction to achieve that forensic objective. So, too, is the primary judge’s misapprehension as to the effect of the relevant provisions. The primary judge repeatedly told the appellant that she could not rely on the convictions as proof of the commission of the offences.

73. In effect, the primary judge informed the appellant that the only way in which she could prove the sexual assaults was to give evidence of them herself and the only way she could prove that RS had also been indecently assaulted by Mr Croft was to call RS to give evidence of them. This was incorrect since the Evidence Act permitted the appellant to prove the fact of the offences against her and RS by tendering the certificate of conviction. Had his Honour told the appellant that the convictions alone could not prove the commission of the offences but that, if she tendered a certificate of conviction, it would be evidence of the commission of the offences, it cannot be doubted that she would have tendered a certificate of conviction.

74. His Honour’s failure to appreciate the effect of the Evidence Act led his Honour into the error of considering that the abuse, insofar as it was constituted by the elements of the offences for which Mr Croft was convicted, could only be proved by MTH’s own oral evidence in the proceedings in the Court below, which his Honour did not accept. The primary judge compounded the appellant’s lack of understanding of the rules of evidence by misleading her as to their effect, although as noted above this was not deliberate. To this extent, grounds 17 and 26 have been made out.

Whether this Court ought approach the matter as if the certificate of conviction had been tendered

75. The further question arises whether it would be appropriate for this Court to approach the matter as if the appellant had tendered the certificate of conviction (which would have established the commission of the offences against her and against RS), having regard to the assurances his Honour gave the appellant that the convictions were not in dispute. I consider that this question ought be answered in the affirmative, for the reasons that follow. Mr O’Neill, who appeared for the State, agreed.

The submissions of Mr Croft and the estate

76. I understood Mr Andrews, who appeared for the estate, ultimately to concede that the certificate of conviction was otherwise admissible to establish the elements of the offences because an application for special leave to appeal to the High Court did not amount to the institution of an appeal. However, he submitted that this Court ought not proceed on that basis as, had the certificate of conviction been admitted, the estate “could have called evidence to rebut it”. He submitted further that it was not incumbent on the primary judge to inform the appellant that the certificate of conviction would be admissible as proof of the elements of the offences committed against her and RS (they being dealt with in the single certificate). He submitted that this would amount to giving judicial advice and was antithetical to the role of a trial judge when dealing with litigants, including litigants in person.

The gap in the award of damages referable to the period from 1979 to 2011

221. I consider there to be another significant error in the primary judge’s assessment of damages which arose from the submission made by Mr Andrews on behalf of the estate in the Court below. In the Court below, Mr Andrews submitted that, if the sexual assaults were established, an appropriate range for general damages would be $175,000 – $200,000. He submitted that these figures (and not greater figures) were appropriate because there was a gap of 33 years from 1979 to 2011 during which the appellant was not suffering because she had, on her own evidence, suppressed her memory of the assaults. He also submitted that there ought be no allowance for interest in that period.

222. The primary judge largely accepted this submission and found at [368]:

It could not be that the plaintiff was suffering from any form of PTSD causally related to the abuse by Mr Croft prior to 2011 because on the plaintiff’s own evidence she had suppressed those memories and was not reliving the experience or having flashbacks in that 30-year period.

223. The primary judge also found at [391]:

On the plaintiff’s evidence in these proceedings, she had managed to suppress her thoughts of the abuse. I do not accept that the plaintiff would have been suffering from PTSD in relation to the abuse when on her own evidence she was not generally conscious of the abuse.

224. Somewhat inconsistently, the primary judge does not appear to have deprived the appellant of interest on general damages for the whole period of the past.

225. The genesis of Mr Andrews’ submission and his Honour’s finding was the appellant’s evidence that when she was disciplined at work in either 2008 or 2011 (there was differing evidence about the date), she had an extreme reaction, which she said resulted in her having suppressed the memory of the sexual assaults by Mr Croft. Her evidence was that those memories later resurfaced from her subconscious when she was being counselled by Natalie Wallace, at which time she felt substantial trauma associated with them. The appellant’s evidence included the following:

… it’s been explained to me by the psychiatrist that it’s like a filing cabinet and the brain is very, very high tech in the way that it can establish - and you live in a survival mode, so, so when you live in survival mode, you - the, the brain will, will say what it needs to do to help you protect yourself, and what it needs to do to help you deal with, with stuff that doesn’t need to be in the forefront.

So the forefront side of it, the suppression side of it is to protect me from feeling the, the fact that I’d attempt to try and talk about abuse and then nobody did anything, and the result of that was a negative result. So the brain establishes the locked away feeling of that and protects you from feeling that every single day. You still are subconsciously aware, which is why it affects relationships, so whatever it is that might have affected you as, you know, like, for me, it was - I had no relationships. I didn’t have any normal going out doing anything, you know, dating, nothing like that. This, this was very confronting for me. So by locking it away it allows you to not allow--

226. The appellant’s evidence that she “locked away” the memory of the abuse is, plainly, a lay opinion which indicates her own subjective assessment of why and how she was able to function between 1979, when the assaults occurred, and 2008, or 2011 when she revealed that they had occurred to the counsellor whom she saw following the work incident. The counsellor adjudged that her reaction was so extreme as to give rise to the suggestion that she had previously suffered a deeply traumatic event.

227. Delay in complaint is typical of those who have suffered sexual abuse as minors. The delay in reporting of some thirty years is not uncommon. Mr Andrews accepted that there was no expert evidence which supported the primary judge’s reasoning that the appellant’s explanation (lay, as it inevitably was) justified the finding that she was not suffering at all in the period of over thirty years since she was sexually assaulted. He also accepted that it would be wrong to regard the appellant as not having experienced any pain and suffering in the period from 1979 until 2008 or 2011. Although Mr Andrews conceded that the appellant must have suffered some pain and experienced some suffering during that period, he submitted that it was “almost nothing”.

228. The primary judge’s decision not to make any allowance for pain and suffering for the period of over thirty years following the rapes and sexual assaults is wholly at odds with what is known by courts, including those who sentence offenders for child sex offences. For example, in R v Gavel [2014] NSWCCA 56; (2014) 239 A Crim R 469, the Court (Leeming JA, Johnson and Hall JJ) stated at [110]:

This Court has observed that child sex offences have profound and deleterious effects upon victims for many years, if not the whole of their lives: R v CMB [2014] NSWCCA 5 at [92]. Sexual abuse of children will inevitably give rise to psychological damage: SW v R [2013] NSWCCA 255 at [52]. In R v G [2008] UKHL 37; [2009] 1 AC 92, Baroness Hale of Richmond (at [49]) referred to the “long term and serious harm, both physical and psychological, which premature sexual activity can do”. The absolute prohibition on sexual activity with a child is intended to protect children from the physical and psychological harm taken to be caused by premature sexual activity: Clarkson v R [2011] VSCA 157; 32 VR 361 at 364 [3], 368–372 [26]–[39].

229. In these circumstances, I consider that ground 33 has been made out. For the reasons given above, I consider that this Court is required to assess the damages afresh since his Honour’s assessment was affected by error. Ground 12 has been made out.

Assessment of damages

Compensatory damages

Relevant principles

230. As far as compensatory damages are concerned, the appellant is entitled, so far as money can do it, to be put in the position she would have been in had she not been raped and indecently assaulted by Mr Croft. This is the measure of damages in tort: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191 (Taylor and Owen JJ); [1966] HCA 38.

231. It was sufficient for the appellant to establish that her injuries were “caused or materially contributed to” by Mr Croft’s assaults: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 514; [1991] HCA 12. Further, if she has made out a prima facie case that her incapacity has resulted from Mr Croft’s tortious conduct, the onus of adducing evidence that her incapacity arises from a pre-existing capacity or would have resulted from that incapacity rests on Mr Croft: Purkess v Crittenden (1965) 114 CLR 164 at 168; [1965] HCA 34.

232. McHugh JA said in Nader v Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 536-537:

… it is settled law that the defendant must take the plaintiff as he finds him …. The rule of the “egg shell skull cases” should not be confined to the physical or constitutional characteristics of the particular individual. When a defendant takes a plaintiff as he finds him, he does not take him as a naked human being divorced from his environment. Clearly enough taking the plaintiff as you find him involves taking him in at least his social and earning capacity setting. … I think that the defendant must take the plaintiff with all his weaknesses, beliefs and reactions as well as his capacities and attributes, physical, social and economic.

(Citations omitted.)

233. When the appellant came into the Crofts’ care she was a vulnerable 16-year old who was devastated by having been taken away from the Phelans. Her life, emotional attachments and education were disrupted by the move. She had neither sexual experience nor sexual education and she had no one to whom she felt she could go for assistance.

Factual matters

234. The assaults committed by Mr Croft took place at some time in 1979 after February when the appellant moved to his property as a foster child. At that time, she was 16 years old. Until not long before the move, she had been living in a happy family situation with the Phelans and, despite the various moves they had made as a consequence of their occupation running motels, she had enjoyed a very stable family life with them, attended school consistently and had achieved her School Certificate at the end of 1978. MTH was noted to have a happy disposition and be a good student. While there was considerable conflict between her and Mr Phelan arising from his illness and incapacity to deal with her adolescent behaviour, she nonetheless regarded the Phelans as her parents, called them “Mum and Dad” and adopted their surname as her own, as she had done since she was four years old. She was understandably deeply distressed at having to be separated from them.

235. She was fond of horses and experienced in riding them. Although the Crofts expected that she would work with the horses on the farm, MTH wanted to get a qualification in accounting from the local technical college. One of the reasons for the placement with the Crofts was that she was relatively proximate to the Phelans and Mr McIlveen wanted to continue to foster the long-term relationship between MTH and the Phelans, who were the only family which she could remember and with whom she had developed strong bonds.

236. The appellant’s evidence, which was not challenged, was that, prior to the assaults by Mr Croft, she was a virgin and had neither sexual experience nor sex education. Her evidence of the sexual assaults (including penile/vaginal penetration) is corroborated by the convictions of Mr Croft for the five offences against her with which he was charged. Her evidence, which I accept, was of assaults which were violent and followed episodes of beating, and were characterised by Mr Croft as corporal punishments for her alleged shortcomings in performing domestic and other work tasks on the property. Her feelings of violation, alienation and isolation following these assaults were profound. Her guilt and shame at having been raped prevented her from seeking help from those best able to provide it: the Phelans and Mr McIlveen. She was too embarrassed to disclose the sexual assaults to them which created a deeper rift between her and the Phelans than her adolescent rebelliousness or Mr Phelan’s illness had brought about. The assaults disturbed her life in a substantial way, robbed her of self-esteem and prevented her from returning to the safety and support of the Phelan household (the correspondence referred to above indicates the extent to which the Phelans loved her and concerned themselves with her welfare).

237. There is considerable force in the State’s submission following its summary of the medical evidence:

While there are differences in each doctor’s diagnosis, all of them indicate that there are multiple factors which have and do contribute to those diagnoses. Given the very long list of traumatic events in the plaintiff’s life, the highest it rises is that the alleged abuse was one of many other causes of her symptomology.

238. The appellant made several criticisms of the primary judge’s assessment of the expert evidence, which are the subject of grounds 13-16. I consider that the primary judge’s analysis of the “gap” to be in error. To that extent, the grounds are made out.

239. The expert evidence adduced in the Court below is not particularly helpful in identifying the damage which the appellant has suffered as a result of the sexual assaults by Mr Croft. This may be explained by the circumstance that MTH has brought a significant number of claims against various people (including against the estate of the late Mrs Phelan); her hurt at being sent away from the Phelans (which, for the reasons given above, is not compensable); and her reluctance to disclose and discuss the sexual assaults in the course of consultations, particularly those for medico-legal purposes. Nonetheless, Dr Jungfer ultimately made a diagnosis of Post-Traumatic Stress Disorder (PTSD) arising from the assaults, which I accept.

240. Further, as referred to above, the principle established by Purkess v Crittenden casts the onus on the tort-feasor (Mr Croft) to show that the appellant would have been in a similar position but for his tortious conduct. I do not consider that he has discharged that onus nor could Mr Andrews point me to any passage in the evidence which was capable of establishing that, but for the sexual assaults perpetrated on her by Mr Croft, the appellant would have been in a similar position. Having regard to the complexity of the question and the number of matters affecting the appellant, it is not surprising that the proof of causal effect is difficult. However, she has established (as the primary judge accepted she had, if the assaults had been proved) that the assaults caused her significant harm. The estate has not discharged the burden of showing that its effect has ceased. Nor has it established (for the reasons given below) that the effects of the assaults did not continue from the time of their perpetration.

General damages: past and future

241. I consider that the award of general damages needs to be substantial to take account of the extent to which Mr Croft’s tortious conduct derailed the appellant from the life for which the Phelans had prepared her and disrupted her late teenage years, with lifelong consequences. I accept that the consequences of the sexual assault are lifelong and have compromised the appellant’s sense of self-worth, capacity to form intimate relationships and ability to live the life she would otherwise have been able to, had they not occurred. I consider that general damages ought be assessed at $400,000, comprising $300,000 for the past and $100,000 for the future. Mr Andrews accepted that the appellant was entitled to interest at Gogic rates (4%) for past general damages: MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; [1991] HCA 3. The figure for interest is $276,000 (being 4%/2 for the period of 46 years since 1979 to take account of the fact that the pain and suffering continued throughout that period).

Aggravated damages

242. Aggravated damages are compensatory damages which are awarded to take account of the special humiliation suffered by a plaintiff due to the nature of the defendant’s conduct in the commission of a wrong: State of New South Wales v Ibbett (2006) 229 CLR 638; [2006] HCA 57 at [31] (Gleeson CJ, Gummow, Kirby, Heydon and Crennan JJ). They are awarded where the defendant’s conduct is so outrageous and blameworthy that an increased award is necessary. In the present case, where the underlying tort amounts to a crime, it is more difficult to distinguish between general damages and aggravated damages. The rapes and indecent assaults committed by Mr Croft against the appellant, who was then under his authority, involved an exercise of power and sexual gratification, accompanied by violence, causing her to be terrified and traumatised. The amount for general damages needs to be increased by an award of aggravated damages because of the horrifying circumstances in which the intentional torts were committed by Mr Croft against MTH. Bearing in mind the need to avoid double-counting between general and aggravated damages, I consider $150,000 to be an appropriate award for aggravated damages.

Loss of earning capacity

243. The assessment of loss of earning capacity requires the comparison between the appellant’s earning capacity but for the sexual assaults and her earning capacity as a consequence of the sexual assaults. Her case at trial was that, but for the sexual assaults, she would have qualified as a veterinarian four years after leaving school in Year 12 and worked full time in that profession for her working life. Thus, she made a claim for damages for loss of earning capacity of $2,947,806.24 (the difference between $3,565,649 (what she would have earned) and $2,211,320 (what she in fact earned), being $1,354,329, to which interest and superannuation need to be added).

244. This claim was based on a counterfactual which has not been made out. The appellant’s case at trial was that, had she remained with the Phelans (on the hypothesis that she would have been adopted by them and would have remained with them), they would have sent her to New England Girls School (NEGS) (which required fees to be paid) for her Higher School Certificate (although she had attended Tenterfield High School for her School Certificate) and she would have gone to university and qualified as a veterinarian. The relevant counterfactual, as set out above, is that she was placed with the Crofts and Mr Croft did not sexually assault her. While she was closer to NEGS when she was living at Uralla, the Crofts’ expectation was that she would work on their property. She did, however, enrol in a course at the Armidale Technical College while living with them. In these circumstances, I do not accept that MTH’s earning capacity ought be assessed on the basis that she would have qualified as a veterinarian within four years of attaining the Higher School Certificate or that she would have attained the Higher School Certificate, except as a mature age student.

245. I accept the State’s summary in the Court below of the appellant’s work history from 1980 to 2013, which is derived from the appellant’s oral evidence:

The plaintiff’s evidence revealed a capable work history that included significant employment up until 2013. This included farming work and work with horses, and work at two meatworks in Rockhampton. The plaintiff also worked in the telecommunications industry and an energy company for some years. The plaintiff worked for the Catholic Education Office and a range of other companies. This work history was largely in the context of the plaintiff’s memory of the alleged abuse having been supressed.

246. As the primary judge noted, the appellant worked hard and was in regular employment from the time she began employment until 2008, or 2011. Subsequently, she stopped work as a result of being bullied, which caused the memory of the trauma she had suffered at the hands of Mr Croft to return with greater force. She then became unfit for work and made claims against various people and entities, including that she was unfit for work because of physical injuries as well as psychological ones. The appellant’s evidence in the Court below was that she suffered a breakdown as a consequence of the trauma of the sexual assaults emerging in 2011 and that, in effect, she was unable to work again and has been on a disability support pension ever since.

247. I accept the submission made by Mr Andrews in the Court below that the appropriate way of addressing the appellant’s loss of earning capacity from 2011 is by way of a buffer.

248. Because of her age at the time of the sexual assaults, the appellant’s likely path in life was uncertain, including because she had just lost the daily support and affection of the Phelans. It is difficult, in these circumstances, to work out with any degree of precision the likely path which she would have taken but for the sexual assaults. While the appellant appeared, when representing herself, to be at times focussed and articulate, she was also distracted and distressed. She had been well-educated and obtained the School Certificate (although not the Higher School Certificate) and could speak and write well. However whether, but for the sexual assaults, she would have obtained a tertiary education at some later stage, is very much a matter of speculation. I am satisfied that the psychological effect of the sexual assaults was such as to affect her earning capacity, at least from the time of the bullying incident at work which led to her disclosing the assaults by Mr Croft in counselling with CLAN. She was counselled by Natalie Wallace, a counsellor with CLAN, from 2011.

246. The trial judge calculated that for the period during which the appellant worked consistently (from 1982 to 2011) she earned an average of $70,000 per annum. It is, however, not possible to determine with precision to what extent her post-2011 earnings, such as they were, were caused by physical injuries (in respect of which she made claims) and which were the consequence of a diminished earning capacity arising from PTSD as a consequence of the assaults.

247. In these circumstances, a buffer is appropriate since an award based on a weekly sum would imply precision which is unattainable: see, for example, Black v Young [2015] NSWCA 71 at [58]-[59] (Sackville AJA, Basten JA and myself agreeing). The present case is very far removed from the category where more precise evidence of loss could have been adduced but was not. A rational basis for assessment of a buffer amount has been laid by the evidence although its quantification is necessarily lacking in firm integers. The assessment of damages for loss of earning capacity is, by reason of the nature and timing (in MTH’s life) of Mr Croft’s tortious conduct against her, difficult and involves “a pragmatic exercise of a kind traditionally left to the good sense of a jury”: Troulis v Vamvoukakis [1998] NSWCA 237 at 14 (Gleeson CJ, Mason P and Stein JA agreeing). The evidentiary foundation in the evidence set out above as to the balance of MTH’s work history permits a buffer to be awarded.

248. The plaintiff is now 61 years old. She was consistently employed for approximately 30 years after the sexual assaults until the trauma was apparently triggered by an incident at work which led to an almost total inability to work. The evidence does not permit the quantification of economic loss by reference to a weekly amount or a precise mathematical calculation. In these circumstances, a buffer is appropriate since I accept that the mental harm suffered by the appellant as a consequence of the assaults affected her work capacity in a material way from the time she stopped work in about 2011. In these circumstances, I consider that a buffer of $350,000 for the past, including interest and superannuation, and $50,000 for the future (allowing for a discount of 15% for vicissitudes) to be appropriate.

Past out of pocket expenses

252. The appellant claims the total amount of past benefits paid by Medicare which are said to be in an amount of $46,090.25. She claims that this figure relates to treatment sought and obtained as a consequence of the trauma she sustained. The evidence is insufficient to establish a connection between each item and the trauma sustained as a result of Mr Croft’s assaults on her. She has suffered a number of physical injuries during this period and has had a back operation. The physical injuries were such as to have required medical treatment. She has obtained counselling from CLAN for which I understand that she was not obliged to pay. In these circumstances, I am unable to award any amount for past out-of-pocket expenses.

Future out of pocket expenses

253. Dr Jungfer proposed a regime of treatment for the appellant of 2-3 appointments per week for “psychodynamic psychotherapy” for 3-5 years at a cost of between $300 and $400 per consultation. If three sessions per week at a cost of $350 per hour are allowed for the next three years, the figure is in excess of $150,000. I consider this figure to be reasonable but have discounted it slightly to make some allowance for vicissitudes to $120,000.

Conclusion

254. For the reasons given above, I propose the following award of damages.

General damages
- Past	$300,000
- Interest on past	$276,000
- Future	$100,000
Aggravated damages	$150,000
Past loss of earning capacity, including superannuation and interest	$350,000
Future loss of earning capacity	$50,000
Past out-of-pocket expenses	Nil
Future out-of-pocket expenses	$120,000
TOTAL	$1,346,000

Costs

The costs order in favour of the State in the Court below

255. The appellant challenged the primary judge’s order that she pay the costs of the State on the ordinary basis until 20 July 2020 and on an indemnity basis thereafter. The primary judge exercised his discretion with respect to costs having regard to the Offer of Compromise made by the State on 30 July 2020 in the amount of $125,000, to which no response was made. At that time Greg Walsh & Co was acting on behalf of the appellant.

256. In ground 7 of appeal, the appellant contended that the primary judge ought to have allowed her to cross-examine Ms Faunt, the deponent of the affidavit deposing to the Offer of Compromise and the circumstance that no response was received. No error has been demonstrated in the primary judge’s refusal to permit the appellant to cross-examine Ms Faunt. In any event, on appeal, Ms Faunt corrected this evidence to indicate that there had been a response to the State’s offer in the form of a request for an extension of time, which was not forthcoming. The proof of the offer required documentary evidence. There was no proper forensic basis on which to allow Ms Faunt to be cross-examined. Ground 7 has not been made out. Further, ground 18 alleges that, in some way, the State was responsible for her non-acceptance of its offer. This ground has not been made out.

257. The appellant submitted that it was unfair for the State to seek its costs against her. However, she has failed to establish any error in the primary judge’s exercise of discretion. Accordingly, her application for leave to appeal against the costs order fails. Grounds 30-32 have not been made out.

The costs order in favour of the estate in the Court below

258. As there is no reason to depart from the usual rule that costs follow the event (Uniform Civil Procedure Rules 2005 (NSW), r 42.1), the appellant is entitled to an order that Mr Croft pay her costs of the proceedings in the Court below and in this Court. Accordingly, the costs order made against her in favour of the estate must be set aside and, instead, an order made that the estate pay her costs of the proceedings.

259. The appellant made reference to a pre-trial offer which had been made on her behalf by Mr Walsh when he was acting for her. As this offer appears to have been without prejudice, it is not relevant to the costs of the proceedings. Accordingly, ground 28 has not been made out.

The costs order in favour of Mrs Croft in the Court below

260. The primary judge ordered the appellant to pay Mrs Croft’s costs on the ordinary basis since his Honour considered that it was not unreasonable for MTH to refuse the joint offer made by the estate and Mrs Croft jointly. No error has been shown in the primary judge’s exercise of discretion with respect to this costs order. Accordingly, her application for leave to appeal against the costs order fails. Ground 20 has not been made out.

Proposed orders

261. For the reasons given above, I propose the following orders:

1. Allow the appeal in respect of the judgment in favour of the second respondent.

2. Otherwise dismiss the appeal.

3. Set aside the judgment ordered by Cavanagh J in favour of the second defendant and the order in respect of the second defendant’s costs and, in lieu thereof:

1. Order judgment for the plaintiff on her claim against the second defendant in the sum of $1,346,000.

2. Order the second defendant to pay the plaintiff’s costs of the proceedings in the Court below.

4. Order the appellant to pay the first and third respondents’ costs of the appeal.

5. Order the second respondent to pay the appellant’s costs of the appeal.

6. Direct the parties to provide within 14 days short minutes of order proposing:

1. a consent order to address the freezing order made in the proceedings in the Court below; or

2. if consent cannot be reached, a draft minute of order which sets out the order for which the party contends together with a short written submission in favour of that party’s version, which the Court will determine on the papers.

262. PRICE AJA: The conduct of the trial below was not an easy task for a judicial officer. There were a number of complex issues to be determined and the appellant represented herself. The primary judge dealt with the parties with patience, courtesy and efficiency. Regrettably, his Honour was not assisted by the submissions made on the issue of Mr Croft’s convictions which gave rise to the misapprehension referred to by Adamson JA at [44] above.

263. I agree with the reasons of Adamson JA and the orders her Honour proposes.

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Decision last updated: 06 June 2025