Osborne v Butler

Case [2024] VSCA 6

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:

  1. 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.

  2. 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.

  3. It is convenient to begin by setting out the background to the issue that now arises in some more detail.

Overview of proceeding

  1. 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.

  2. 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]

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Osborne v Butler [2024] VSCA 6
Case
[2024] VSCA 6
Decision Date

CaseChat Overview and Summary

The case of Osborne v Butler involved the applicant, convicted of two counts of sexual penetration of a child under 16, who was sued by the respondent for damages. The respondent sought to rely on the conviction in her civil case. The court was required to determine the admissibility and use of prior criminal convictions in subsequent civil proceedings. Specifically, the court needed to examine the statutory exceptions under the Evidence Act 2008 that permit the use of such convictions and the limits of those exceptions.

The court found that while Section 92(2) of the Evidence Act allows for a prior conviction to be used as prima facie evidence of the commission of the offence and its elements, it does not extend to the underlying facts, reasons for judgment, or sentencing remarks. The applicant had the burden to rebut the evidence of the offending, but the trial judge's ruling precluded him from contesting the correctness of the conviction. The court held that this was an error of law, as the applicant was entitled to contest the facts and seek to displace the evidence of the offending. The trial judge's ruling that the conviction precluded the applicant from contesting the correctness of the conviction was thus deemed to be an error of law.

The court allowed the appeal and quashed the decision of the County Court. The matter was remitted to the County Court for rehearing before a differently constituted court.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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