Osborne v Butler

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0080

CLINTON JAMES OSBORNE	Applicant
v
JODI BUTLER (A PSEUDONYM)	Respondent

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JUDGES:	EMERTON P, McLEISH and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	25 September 2023
DATE OF JUDGMENT:	15 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 6
JUDGMENT APPEALED FROM:	[Butler] v Osborne (County Court of Victoria, Judge Purcell, 31 August 2022)

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EVIDENCE – Uses to which criminal conviction can be put in subsequent civil proceeding – Applicant convicted of two counts of sexual penetration of child under 16 – Respondent seeking damages based upon offending against her – Hollington v F Hewthorn & Co Ltd [1943] KB 587; Evidence Act 2008, s 91, considered – General rule that prior proceedings inadmissible to prove facts that were in issue in those proceedings – Exception in Evidence Act 2008, s 92(2) permits conviction to be relied upon as prima facie evidence of commission of offences and elements of offences – Exception does not extend to underlying facts, reasons for judgment or sentencing remarks – Convicted party has evidentiary onus of proof to rebut evidence of offending – Applicant entitled to contest facts and seek to displace evidence of offending – Trial judge precluded applicant from contesting correctness of conviction – Appeal allowed.

Hollington v F Hewthorn & Co Ltd [1943] KB 587; Hill v Clifford [1907] 2 Ch 236; Mash v Darley [1914] 1 KB 1, discussed.

Evidence Act 2008, ss 91–92, 166–169, 178.

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Counsel
Applicant:		Ms L De Ferrari SC with Mr L White
Respondent:		Mr A Lyall (solicitor)
Solicitors
Applicant:	--
Respondent:	Cahills

EMERTON P
MCLEISH JA
TAYLOR JA:

This case is about the use which can be made of a criminal conviction in a subsequent civil trial in which the plaintiff seeks to recover damages from the offender on account of the criminal conduct.
The facts are not complex. In 2017 the applicant was found guilty, after a trial in the County Court, of two counts of sexual penetration of a child under 16. That child is the present respondent, who was aged 15 at the time of the offences. She subsequently commenced a proceeding against the applicant in the County Court, claiming damages arising from assault and battery constituted by the offending.
It is convenient to begin by setting out the background to the issue that now arises in some more detail.

Overview of proceeding

On 17 June 2008 the respondent made a statement to police alleging that the applicant had sexually assaulted her in a tattoo parlour in Shepparton on 12 February 2008.
After a considerable delay, the applicant was charged in January 2013 with two counts of sexual penetration of a child under 16. A committal hearing was held in 2015 and, after a jury trial, he was convicted on both counts on 8 March 2017 and duly sentenced. An application for leave to appeal to this Court was refused.[1]
[1]Osborne v The Queen [2018] VSCA 160.
On 8 April 2019, the respondent commenced the civil proceeding in the County Court. By her statement of claim, she alleged the torts of assault and battery and claimed damages for post-traumatic stress, depression and anxiety, together with aggravated and/or exemplary damages.
The respondent’s further amended statement of claim was expressed in economical terms. She alleged that she had been ‘assaulted and/or sexually abused and/or indecently assaulted and/or raped’ by the applicant, that the applicant had been convicted of two counts of sexual penetration of a child under 16 in respect of that ‘abuse and/or assaults’, that the ‘abuse and/or assaults’ were an assault or battery and that the applicant’s conduct was wrongful and illegal by reason of the respondent’s age.[2] She alleged that, as a result of the ‘abuse and/or assaults’, she had suffered injury, loss and damage.
[2]No issue is taken before us about the adequacy of the pleading or the existence of a tort consisting of ‘wrongful and illegal’ conduct.
In pre-trial directions, the respondent was ordered to serve an affidavit setting out the evidence-in-chief she intended to give, ‘confined to the consequences of the conviction’ recorded against the applicant. At an earlier directions hearing, the judge had told the applicant that the civil trial was not a ‘second bite’ at the convictions entered against him. The judge refused to permit the applicant to call witnesses to give evidence about a range of matters, many of which were plainly not relevant but one of which was the knowledge of the witnesses about the respondent having made false allegations against him.
The civil trial was held on 24 and 25 August 2022, and judgment was given on 31 August 2022.
In his reasons, the judge referred to ss 91 and 92 of the Evidence Act 2008 (‘Evidence Act’) and held that their practical effect was that the applicant had ‘an evidentiary onus to prove that he was incorrectly convicted’.[3] He stated that the conviction of the applicant could be used as evidence that he was convicted of the assaults on the respondent ‘subject to that fact being rebutted by him’.
[3]Citing Gonzales v Claridades (2003) 58 NSWLR 188.
The judge held that, because the conviction involved a higher standard of proof, and because it had been upheld on appeal, the applicant was not permitted to ‘selectively pick pieces of evidence or transcript from the criminal proceeding to effectively turn [the civil] proceeding into a repeat of the criminal trial’. Nor was he permitted to call witnesses or rely on documents that were not directed to the legitimate forensic purpose of rebutting ‘the fact of the conviction’.
The judge also noted that he had ruled that the applicant could not cross-examine the respondent as to the ‘factual matters upon which he was convicted’. The result was that the applicant ‘failed to identify any admissible evidence that would have been relevant to the issue of whether he could rebut the fact he was convicted of the assaults’. Nor had the applicant provided ‘credible evidence to rebut or challenge the factual matters the subject of the convictions’. Accordingly, the judge accepted that the applicant ‘committed the assaults’ on the respondent, which were ‘serious sexual offending against a vulnerable young person in circumstances where a breach of trust was involved’.
The judge referred also to the record of the County Court dated 24 July 2017 which had been tendered as proof of conviction pursuant to s 178 of the Evidence Act. We will return to that document and the statutory provisions.
The practical effect of the judge’s conclusions was, he said, that the proceeding was ‘an assessment of damages in respect to the assaults’. He awarded $250,000 by way of pain and suffering damages, together with a further $25,000 by way of aggravated damages. Questions of causation and quantum of damages are not relevant to the present application.
For reasons that will become apparent, it will be necessary to say more about the course of the trial. By way of overview, it may be noted that, in the course of the hearing, the judge said on several occasions that the fact of the convictions could be used ‘as an admission’ against the applicant, albeit one which he could seek to rebut.[4] On the other hand, he indicated multiple times that he would not permit the criminal trial to be ‘run again’. The applicant was prevented from cross-examining the respondent as to her credit.
[4]It is not clear what the judge meant by describing the convictions as an ‘admission’ by the applicant, who had pleaded not guilty at the trial. Nothing appears to turn on this designation.
It should also be mentioned that the judge admitted into evidence the remarks of the sentencing judge in respect of the applicant’s convictions, together with the reasons given by this Court for refusing leave to appeal against conviction and upholding an appeal against sentence by the Director of Public Prosecutions. These documents seem to have been relied upon principally as showing the seriousness of the sexual offending and the fact that this Court upheld the convictions.

Proposed appeal

By his proposed grounds of appeal, the applicant contends that the judge:
(a)misconstrued and misapplied ss 91 and 92 of the Evidence Act;
(b)failed to ensure a fair trial (principally by treating the issues in dispute as being limited to causation and quantum);
(c)failed to accord procedural fairness; and
(d)conducted the case in a way that gave rise to apprehended bias.
There is considerable overlap in these grounds. It will not be necessary to deal with all the applicant’s arguments or the various particulars which form part of the grounds, because the applicant’s first two arguments must be accepted and the matter remitted for retrial accordingly.

Statutory provisions

Sections 91 and 92 of the Evidence Act provide as follows:
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.
92      Exceptions
(1)Section 91(1) does not prevent the admission or use of evidence of the grant of probate, letters of administration or a similar order of a court to prove—
(a)      the death, or date of death, of a person; or
(b)      the due execution of a testamentary document.
(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.
In addition, s 178 relevantly 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.
...
(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—
…
applicable court means an Australian court or a foreign court.
Pursuant to s 178, the respondent tendered at trial a County Court record of orders dated 24 July 2017. It stated, relevantly, that the applicant was convicted of two charges of sexual penetration of a child under 16 years and that the County Court ordered on 24 July 2017 in Melbourne that he serve an aggregate sentence of three years’ imprisonment.
Section 178 is in ch 4 of the Evidence Act, which is entitled ‘Proof’. It addresses only means of proof, not admissibility. Accordingly, a note to the provision indicates that s 91 ‘excludes evidence of certain judgments and convictions’.
The Evidence Act also makes provision for the calling of further evidence in cases where a prior conviction has been admitted under s 92(2). Section 167, read with the definition of ‘request’ in s 166(g), permits a party to make a reasonable request, in relation to evidence of a person’s conviction to which s 92(2) applies, that another party call as a witness a person who gave evidence in the proceeding in which the person was convicted. The request must relevantly be for the purpose of determining a question that ‘relates’ to evidence of the conviction of a person for an offence: s 167(b). If the other party fails or refuses, without reasonable cause, to comply with the request, the court may make an order directing compliance with the request, an order that the party call a person as a witness, or an order that the evidence in relation to which the request was made is not to be admitted: s 169(1). The court is to take into account matters including, in the case of a request within the definition in s 166(g), ‘whether another person is available to give evidence about the conviction or the facts that were in issue in the proceeding in which the conviction was obtained’: s 169(5)(f).

Construction and operation of the provisions

Prior to the enactment of the Evidence Act, the common law position, reflected in the English Court of Appeal decision in Hollington v F Hewthorn & Co Ltd,[5] was that evidence of a prior conviction was admissible to prove the fact of that conviction but not to prove the facts upon which the conviction was based.[6] An example of the former case would be where a defendant to a defamation action seeks to prove the truth of an imputation that the plaintiff was a convicted criminal. In the latter kind of case, of which Hollington is an example, the fact in issue is not the conviction itself, but the facts upon which it was based.
[5][1943] KB 587 (‘Hollington’).
[6]Ibid 598 (Goddard LJ for the Court).
In Hollington, the owner of a motor vehicle sought damages arising from a collision with a vehicle driven by one of the defendants. The driver of the plaintiff’s vehicle had died. In order to establish that the vehicle had been driven negligently, the plaintiff sought to rely on the conviction of the other driver for careless driving. The conviction was held to be inadmissible for that purpose, in particular because the conviction amounted to a hearsay statement and was an expression of opinion on the part of the criminal court.[7]
[7]Ibid 595–6.
There was prior English authority, not cited in Hollington, to the opposite effect. In Hill v Clifford,[8] the plaintiff sought to terminate a dentistry partnership with the defendants on the grounds that they had been guilty of professional misconduct. The Court of Appeal upheld the admissibility into evidence of a decision striking the names of the defendants from the dental register.[9] Application of the reasoning in Hollington would have meant that the prior decision could have been adduced if the issue had been whether the respondents had been found guilty of professional misconduct, but not on the question whether they had in fact been guilty of such misconduct.
[8][1907] 2 Ch 236.
[9]Ibid 244 (Cozens-Hardy MR), 257 (Buckley LJ). A more equivocal position was taken by Sir Gorrell Barnes P: at 252–3.
Similarly, it was held in Mash v Darley[10] that a man’s conviction of carnal knowledge involving the complainant was ‘presumptive proof’ of the commission of the crime, corroborating the complainant’s evidence that he was the father of her child.[11] This decision was followed in this Court, in respect of a prior judicial order recognising the defendant as the father of the complainant’s unborn child.[12] The stricter approach taken in Hollington would have denied the admissibility of the prior judicial decisions in these cases. For example, Hollington was applied in Bowering v Bowering[13] to rule a husband’s conviction for sodomy inadmissible in divorce proceedings.
[10][1914] 1 KB 1.
[11]Ibid 3–4 (Ridley J, Scrutton and Bailhache JJ agreeing at 5).
[12]McKinley v Delaney [1915] VLR 66.
[13][1944] SASR 145.
The decision in Hollington has been the subject of much criticism, in particular because it raises the prospect of inconsistent judicial determinations. It has been said that one consequence may be that a convicted arsonist may establish a claim against an insurer arising out of the fire upon which the conviction was founded.[14] In the course of a detailed analysis of the common law position, Sir Zelman Cowen quoted another author’s more ‘pungent comment’ that to ‘state that a civilised community is willing to see a man hanged on … a finding of fact but to treat such a finding as a mere opinion in a subsequent case involving a matter of dollars and cents is a reflection on the administration of justice as well as an offence to common sense’.[15]
[14]JD Heydon, Cross on Evidence (LexisNexis, 14th ed, 2024) [5220].
[15]Z Cowen, ‘The Admissibility of Criminal Convictions in Subsequent Civil Proceedings’ (1952) 40 California Law Review 225, 240, citing CA Wright, ‘Case and Comment: Evidence — Admissibility of Criminal Convictions in Civil Actions — Hearsay’ (1943) 21 Canadian Bar Review 653, 658.
The Australian Law Reform Commission, in its report preceding the enactment of the uniform Evidence Acts, considered that the policy considerations warranted admission of evidence of convictions to prove the facts on which they are based.[16] In achieving this result, the legislation takes a somewhat indirect route.
[16]Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) 441–2 [772].
First, s 91 restates the rule in Hollington, applicable to evidence of prior decisions in criminal and civil proceedings. Relevantly for present purposes, s 92(2) then provides for an exception in the case of evidence of prior convictions[17] in subsequent civil proceedings.
[17]Other than those that have been set aside or are subject to pending review or appeal, or in respect of which a pardon has been given: Evidence Act 2008, ss 92(2)(a)–(c).
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.
If further confirmation of the operation of ss 91 and 92 is required, it is found in the provisions within ss 167–169, which contemplate the ability of the party against whom the conviction is used to have witnesses from the criminal proceeding called in the civil proceeding. There would be no forensic advantage in taking that course, and a live prospect of disadvantage, if the conviction were not able to be used in the first place to prove the existence of facts in issue in the criminal proceeding. Sections 167–169 presuppose that the party against whom the conviction is used is entitled to take issue with the facts upon which the conviction was based, and the provisions help to facilitate that process.

Importantly, the Evidence Act says nothing as to the certificate of conviction being conclusive. The provisions of ss 167–169 show that it is not. As it is open to the party against whom the conviction is used to seek to rebut the evidence that he or she committed the criminal conduct, the effect of s 92(2) is to impose an evidentiary onus on the party who disputes the commission of the offending conduct to produce evidence to that effect.[18]
[18]Gonzales v Claridades (2003) 58 NSWLR 188, 206 [66] (Campbell J), endorsed on appeal in Gonzales v Claridades (2003) 58 NSWLR 211, 215 [16] (Mason P, Beazley JA agreeing at 222 [54], Foster AJA agreeing at 222 [55]).
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.[19] 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.
[19]Prothonotary of the Supreme Court of New South Wales v Gregory [2017] NSWCA 101 [23] (Bathurst CJ, Beazley P and Sackville AJA); Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 [9] (McColl JA, Campbell JA agreeing at [52], Meagher JA agreeing at [53]); Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 [9] (Hodgson JA, Tobias JA agreeing at [32], Basten JA agreeing at [33]); cf obiter dicta in Edwards v State Trustees Ltd (2016) 54 VR 1, 32 [116] (Santamaria JA) (see also 31 [110]).
Consistently with that position, s 178(3) relevantly provides that a certificate signed by a judge or other proper officer showing the fact of the conviction and stating its time and place is evidence of the particular offence in respect of which the conviction was had, if stated in the certificate. In other words, the certificate is evidence of the convicted person having committed the particular offence.
In the present case, this means that the certificate of the County Court judge in the criminal trial stood as evidence, not only that the applicant had been convicted of two acts of sexual penetration of a child under 16, but also as to the elements of those offences. The physical elements of the offences had been done by the applicant with the requisite state of mind.[20]
[20]No issue was raised before us or, it seems, in the County Court, as to the fact that lack of consent was not an element of the offences of which the applicant was convicted. In the civil proceeding, the respondent relied on the fact of the convictions notwithstanding that it might be contended that they were incapable of establishing a lack of consent. The respondent did not, in any event, expressly plead a lack of consent as part of the cause of action, although it is probably implicit in the allegation of ‘assault or battery’. The alternative formulation of ‘rape’, raised only at one point in the pleading, could also be said to raise the issue by implication.
The respondent’s evidence at trial went further by identifying herself as the person upon whom the offences were perpetrated. She did this by exhibiting and purporting to adopt the sentencing remarks. As has been mentioned, the sentencing remarks were not made admissible by s 92(2), but in this way the respondent sufficiently connected the record of the County Court’s order to herself.

Were the provisions correctly construed and applied?

Judge’s reasons

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.
Taking the reasons of the judge standing alone, it is not entirely clear what he meant by evidence to ‘rebut the fact [the applicant] was convicted of the assaults’. In so far as the judge referred to the convictions having been based on the criminal standard of proof and having been upheld by this Court, the judge may have treated the issue under s 92(2) as being whether the applicant could effectively rebut the fact of the actual convictions. That would tend to suggest an erroneous approach to the operation of s 92(2), which is about the facts underlying the conviction rather than the conviction itself.
On the other hand, 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.
It is necessary, in the circumstances, to consider how the trial was run in order to decide whether the judge erred in construing and applying s 92(2).

Course of the trial

At the trial, the respondent was represented by counsel but the applicant appeared in person. There had been a number of directions hearings and several adjournments before the trial commenced. Among other things, the applicant had been refused leave to pursue a counterclaim raising numerous extraneous issues. The judge endeavoured to assist the applicant as an unrepresented litigant, including about matters such as relevance, the role of evidence and the proper conduct of cross-examination. In a challenging environment for all concerned, it appears that those efforts were not especially successful. In the end, the judge found it necessary to curtail cross-examination by the applicant, including his cross-examination of the respondent.
In his opening address, the applicant raised a number of points relevant to the present issue. First, he alleged that the respondent had said in her police statement that she had been assaulted three times and that his counsel had successfully applied at the committal hearing to have an allegation of digital penetration struck out. The applicant said that this proved that the respondent had lied and that the allegations upon which the convictions were based were false as well.
Secondly, the applicant submitted that the convictions had been obtained under false pretences. He said that police had tampered with certain evidence. He further submitted that he had not received a fair trial, in particular as a result of the tampering with the evidence which he asserted.
Finally, the applicant said that his appeal had been unfair as a result of misconduct by his appellate counsel. Other matters raised by the applicant in his opening went to the question of causation and the assessment of damages.
Before evidence commenced, the judge described the operation of the Evidence Act for the benefit of the applicant. He said:
As I’ve said to you now on several occasions in the management of this case, under the Evidence Act, the fact of your conviction can be used as an admission against you. I’ve mentioned here, on several occasions, that it is a rebuttable fact, but you were convicted on a higher standard than the civil standard. You were convicted beyond reasonable doubt.
…
Extracting a line or two, or a paragraph or two from a lengthy criminal trial — from the transcript of a lengthy criminal trial is not going to be allowed by me. So, the material you sent through this morning, I’m excluding it. You have selectively picked lines out of the transcript, including one line which ignored the comment afterwards about a conviction, or a fact of something happening. The fact of the matter is you were convicted.
Now, I understand that you maintain your innocence. I’m not here to run the criminal trial. I’ve told you this many times. This is not an opportunity to run the criminal trial again. At the moment, the fact of the conviction against you stands. On 24 July 2017, you were convicted of two counts of sexual penetration of a child under 16. That is a fact that can be used by the plaintiff in this proceeding. And you have not produced any evidence to rebut it.[21]
[21](Emphasis added). See as to the reference to an ‘admission’, n 4 above.
The judge then went further and, in effect, indicated that the trial was only about the question of damages. It is necessary to place the statements of the judge in context:
So, this case is about the assessment of damages following the admission of the fact of your conviction. So, the matters you raise about the plaintiff’s entitlement to damages from any harm that you may have caused as opposed to harm that she’s caused to herself or caused by unrelated matters, I’ll give you leave to ask appropriate questions in a respectful and confined manner about that. But I am not going to allow questions about the events leading up to the matters upon which you were convicted.
I am, in particular, not going to allow any more time to be spent telling me about crooked cops and crooked barristers and things that are irrelevant to this case. If that has occurred, you had appeal rights, you exercised those, and the appeal didn’t go well for you. This is not a re-hearing, it’s not a rehash of those events. And I’ve told you this on several occasions and previous directions hearings, so I apologise if I sound a little frustrated, but I am, because I don’t feel that you understood, or have understood what I’ve been trying to explain to you. Rightly or wrongly, you were convicted.
MR OSBORNE: Under false pretences. ...
…
HIS HONOUR: This is not the appeal, it’s not the criminal trial, okay? So, it will be a lot easier for everyone if we just approach this case on the basis that, rightly or wrongly, you have been convicted, and that stands as a fact. And so, now we move on from that to work out what, if any, entitlement to damages [the respondent] has, by reason of the convictions. Now, that’s where I want to move to.[22]
[22](Emphasis added).
In this way, the judge indicated before evidence commenced that the applicant’s convictions stood ‘as a fact’ and that the trial was about the damages, if any, that flowed from that fact.
The first witness to give evidence was the respondent. Her evidence in chief was substantially by way of affidavit. Before cross-examination commenced, counsel for the respondent raised an objection to any questions which might be asked in cross-examination ‘relating to the events of 12 February 2008’, meaning ‘the circumstances of the offending for which [the applicant] was convicted’.
Cross-examination of the respondent did not proceed smoothly. Not surprisingly, there were repeated clashes between the applicant as cross-examiner and the respondent as witness. There were also exchanges between the judge and the applicant as to whether the respondent had answered various questions or could be pressed for different answers to those which she had given. In the course of one such exchange, the applicant told the judge that the allegations of offending were ‘all false’. The judge responded ‘okay, we’ve been down that rabbit hole. We’re not going down there again’. Subsequently, the applicant sought to cross-examine the respondent about evidence in a medical report which described the offending as having occurred when the respondent was 13 (rather than 15) years’ old. The judge declined to permit the question:
HIS HONOUR: Well, you can rephrase it all you like, but we’re not going to ask those questions. If you’re trying to run some defence along those lines, it’s not — that’s not permissible.
MR OSBORNE: Well, Ms [Butler], do you agree that you made an allegation against me in 2008 to the police?
HIS HONOUR: Not allowed. We’re not running that case, Mr Osborne.
MR OSBORNE: Okay.
HIS HONOUR: It’s a matter of record that Ms [Butler] did, and it’s also a matter of record in this case that you were convicted subsequently, so let’s move on.
MR OSBORNE: Well, the trouble I have, Your Honour - - -
HIS HONOUR: No, no.
MR OSBORNE: - - - is that she’s changed the dates by three years, and I’ve made a point of this.
HIS HONOUR: Okay. So, Mr Osborne, I’ve made a point of it as well. It’s not relevant, next question.
The applicant tried another line of cross-examination shortly thereafter:
MR OSBORNE: Ms [Butler], have you ever — in 2017, did you tell anybody that the allegations against me are false?
MR HUTCHINSON: I object, Your Honour.
HIS HONOUR: Yes, upheld.
MR OSBORNE: Pretty — it’s a pretty big thing, Your Honour, to admit to the allegations being false against me.
HIS HONOUR: First of all, it’s so broad as to be meaningless. Secondly, at the risk of repetition, we are not here running the criminal trial.[23]
[23](Emphasis added).
The judge consistently prevented the applicant from cross-examining the respondent about his convictions. The judge applied a ‘three strikes’ policy:
HIS HONOUR: Right, Mr Osborne. You’re now on an official strike. We are not running the criminal trial, so this is not relevant.
MR OSBORNE: Your Honour, I’m trying to make a point.
HIS HONOUR: Mr Osborne. Not relevant. Next question.
MR OSBORNE: Ms [Butler], in your police statement, you told the police that you had a shower at my tattoo shop - - -
MR HUTCHINSON: Sorry, Your Honour, I object.
HIS HONOUR: Mr Osborne, I’m giving you a second and final warning. We are not going to revisit the criminal trial. Ms [Butler] is not going to be cross examined by you about the matters upon which you have been convicted.[24]
[24](Emphasis added).
The judge did, however, permit the applicant to tender the police statement of the respondent. When the judge subsequently asked the applicant to explain the relevance of the document, a heated exchange ensued:
HIS HONOUR: … What line of questioning do you wish to pursue flowing from the statement?
MR OSBORNE: About her telling the police that she had a shower at my tattoo shop.
HIS HONOUR: Well, that question will not be allowed.
MR OSBORNE: Why not?
HIS HONOUR: Because it’s irrelevant to this case.
MR OSBORNE: It proves she’s an unreliable witness, Your Honour.
HIS HONOUR: Okay, Mr Osborne, I’m not allowing the question.
MR OSBORNE: Won’t — this is — Your Honour, this is unbelievable.
HIS HONOUR: Well, believe it, Mr Osborne.
MR OSBORNE: Allow [sic].
HIS HONOUR: What is unbelievable at the moment is that you seem unable to follow instruction about asking relevant questions, so can we please try and focus on that.
MR OSBORNE: So you won’t allow evidence of prior inconsistent statements.
HIS HONOUR: I’m not allowing evidence, which has already been given in a criminal proceeding in which you were convicted of the offences, relied on for the purpose of this civil proceeding. That’s what I’m not allowing.
The applicant expressed his objection to the course the judge was taking on a number of occasions, not always in respectful terms. The discussion appears to have proceeded to some extent at cross purposes:
MR OSBORNE: Your Honour, what you’re doing is, you won’t allow to me use any evidence at all that proves that she’s made a prior inconsistent statement earlier on and so you’re going to try and pretend, and give a judgement, that she’s a truthful and honest witness when she’s not.
HIS HONOUR: Okay. Objection noted. Next question.
MR OSBORNE: So I’m not allowed to use anything out of the statement, or I am? Your Honour? Because - - -
HIS HONOUR: The statement in my view is - - -
MR OSBORNE: - - - the statement was used during the trial.
HIS HONOUR: The statement in my view - - -
MR OSBORNE: So, am I allowed to use it or I’m not allowed to use it?
HIS HONOUR: You are allowed to ask relevant questions. I don’t understand how anything in the statement is relevant but you tendered it.
MR OSBORNE: And so I’m allowed to use it now?
HIS HONOUR: No, it’s irrelevant but you tendered it so I went with the path of least resistance. But we are not running the criminal trial.
MR OSBORNE: But how about if I can prove that she’s lying on a point, Your Honour? That’s she’s - - -
HIS HONOUR: Okay. So why don’t we try and ask some questions relevant to this case and see whether you can prove it that way.
MR OSBORNE: Okay, well, how do you suggest a question and I’ll ask it. I think - - -
HIS HONOUR: No, I’m not - - -
MR OSBORNE: - - - that’s what (indistinct) be better off doing. You should suggest it and then I’ll ask it, Your Honour, because it’s — it’s the only way you’ll be happy.
HIS HONOUR: All right. Well, if I was to suggest a question, I would suggest a question that you don’t ask any more questions because I don’t think you’ve asked any that are relevant. Now, if you’ve got a relevant question, ask it. If you haven’t, say, ‘I have finished, Your Honour’, and we’ll move to the next stage of the trial.
MR OSBORNE: No. You’re being unfair, Your Honour.
HIS HONOUR: Noted, Mr Osborne.
MR OSBORNE: And you’re encouraging her to lie.
HIS HONOUR: I’m not encouraging - - -
MR OSBORNE: You’re encouraging - - -
HIS HONOUR: - - - her to do anything, Mr Osborne.
MR OSBORNE: Yes, you are. You’re — and you’re going to encourage other — other drug addicts are going to come forward and make false allegations against people because they know that they can get away with it.
HIS HONOUR: Right. So Mr Osborne, you make a speech like that again, I will assume that you have finished your cross-examination.[25]
[25](Emphasis added).
At a later point, the applicant attempted to go back to the question he had raised in opening as to whether the respondent had initially made allegations of three separate offences rather than two:
MR OSBORNE: I’m just going to go through me notes and see what else, please. (To witness) Ms [Butler], I’m being sued for allegations you’ve made about two — you claim, two offences that were made against you. Did you ever tell the police that there was three - - -
HIS HONOUR: Okay, so Mr Osborne, that’s dangerously close to the three strike policy. We are not running the criminal trial.
MR OSBORNE: Your Honour, it got struck out. One — one charge got struck out by the magistrate because he didn’t believe her.
HIS HONOUR: Okay, well, I don’t know that to be the case, it might have been struck out for all sorts of reasons but it’s not relevant to this case. Okay?[26]
[26](Emphasis added).
The other evidence in the respondent’s case was given by a psychiatrist and a psychologist. It is not necessary to refer to that evidence.
When the time came for the applicant to give evidence, the judge asked him which topics he intended to give evidence about. The applicant plainly did not appreciate the difference between evidence and submissions, despite a number of attempts by the judge to explain that difference to him. Leaving that issue to one side, the judge also reiterated that the criminal trial was not being ‘run again’. The judge said, ‘so if you want to get in the box and start telling me stories — or give evidence, rather, about events that happened back in February 2008, I’m not going to allow it’. The judge told the applicant that he could give evidence about matters of which he had direct knowledge relevant to the case, with the ‘caveat’ that ‘we are not running the criminal trial’.
The applicant subsequently asked why he had not been permitted to put to the respondent that she had admitted to her sister that the allegations against the applicant were false. The judge gave the following explanation:
If you had never been convicted, if you are running your own criminal defence, you could put a document to a witness and you could ask a question about it. The point you are missing is this, you have been convicted and that is, under the Evidence Act, an admission that can be used against you. And that is the basis upon which this trial has proceeded. And so going back to revisit the criminal trial is not happening.[27]
[27](Emphasis added).

It is not necessary to set out details of the evidence given by the applicant. The matter proceeded to final addresses, with the respondent going first despite being the plaintiff, in light of the fact that the applicant was self-represented. It is relevant to note that counsel for the respondent relied on the reasons for sentence to support a submission that aggravated damages ought to be paid by reference to the conduct of the applicant in the course of the offending, including failing to wear a condom and ejaculating in the respondent’s mouth.
Before the applicant started his closing submissions, the judge outlined the issues which the case presented. Relevantly for present purposes, he said:
So, as you are aware, this is a claim in which the plaintiff seeks damages arising out of the matters for which you were convicted. I note your evidence earlier this afternoon. So, the first issue is whether I’m satisfied that the admission of those convictions stands. The next issue would be, if I am satisfied that those — that the convictions stand and therefore the plaintiff is entitled to damages by reason of the matters associated with those convictions, firstly, what is a fair and reasonable sum for her pain and suffering, loss and enjoyment of life.
The conduct of the hearing shows plainly that the judge did not regard the applicant as being entitled to seek to contest the facts underlying his convictions. Both before and during the trial, he prevented the applicant from putting in issue the credibility of the respondent and the veracity of her evidence at trial. The respondent was only required to give evidence of the consequences of the criminal conduct and the judge treated the fact of the convictions as foreclosing inquiry into the fact of the sexual assaults.
Consistently with s 92(2), the record of the convictions stood as evidence of the fact that the applicant had sexually penetrated the respondent on two occasions when she was aged under 16. But the applicant was entitled to seek to displace that evidence, either by advancing evidence of his own, or by cross-examining the respondent as to whether the criminal conduct had in fact occurred. It is by no means clear that the applicant had a factual foundation for that endeavour, but the judge foreclosed the inquiry before that could be ascertained. In particular, the judge refused to allow the applicant to call witnesses who it was said could give evidence about the respondent having made false allegations against him, and refused to permit alleged past inconsistent statements to be put to the respondent in cross-examination. In these ways, the judge misconstrued and misapplied s 92(2).

Conclusion

It follows that the first two proposed grounds are made out. It is unnecessary to decide whether the judge also denied the applicant procedural fairness or conducted the trial in such a way as to give rise to a reasonable apprehension of bias. But it should be recognised in that context that the case presented multiple difficulties, by reason of the sensitive subject matter, the personalities involved, the relative obscurity of the critical legal issue and the fact that the applicant was unrepresented.

Orders

Leave to appeal should be granted and the appeal allowed. The judgment of the trial judge should be set aside and the matter remitted for rehearing. Subject to any argument to the contrary, the respondent should pay the applicant’s costs of the appeal, but should have a certificate for her costs under s 4 of the Appeal Costs Act 1998.
The Court acknowledges the very considerable assistance provided by pro bono counsel for the applicant in this matter.

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[2024] VSCA 6

15 February 2024