Re Sophie
[2008] NSWCA 250
•15 October 2008
NEW SOUTH WALES COURT OF APPEAL
CITATION:
Director General of Department of Community Services; Re Sophie [2008] NSWCA 250
FILE NUMBER(S):
40227/08
HEARING DATE(S):
2 October 2008
JUDGMENT DATE:
15 October 2008
PARTIES:
Director General of Department of Community Services
DW
KW
"Sophie"
JUDGMENT OF:
Giles JA Handley AJA Sackville AJA
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
DC 1606/08; DC 1690/08
LOWER COURT JUDICIAL OFFICER:
Williams DCJ
LOWER COURT DATE OF DECISION:
30 May 2008
COUNSEL:
Pl: I Temby QC / T Allen
1Def: W J N Wells QC
2Def: M W Anderson
3Def: E Lawson
SOLICITORS:
Pl: I V Knight
1Def: Stephen Bottrill Solicitors, Byron Bay
2Def: Belinda Eyers & Assocites, Brunswick Heads
3Def: Darnell & Associates, Alstonville
CATCHWORDS:
APPEAL - Appeal from decision of District Court which allowed an appeal from a care and protection order made by the Children’s Court under s 71 (1) (c) of the Children and Young Persons (Care and Protection) Act 1998 (“Care Act”)
RELIEF - Application for relief in that nature of certiorari under s 69 of the Supreme Court Act 1970
EVIDENCE - Burden of proof – Allegation that father had sexually abused five year old daughter – whether trial judge correctly applied standard of proof – application of s 140 (2)(c) of the Evidence Act 1995 – whether matter should be remitted to the District Court
LEGISLATION CITED:
Civil Procedure Act 2005 (NSW)
Evidence Act 1995 (NSW)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Supreme Court Act 1970 (NSW)
CATEGORY:
Principal judgment
CASES CITED:
Briginshaw v Briginshaw (1938) 60 CLR 336
Coles v Burke (1987) 10 NSWLR 429
Druett v Director General of Community Services [2001] NSWCA 126
Government Insurance Office of NSW v Ivanoff (1991) 22 NSWLR 368
M v M (1988) 166 CLR 697
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Palmer v Dolman [2005] NSWCA 361
TEXTS CITED:
DECISION:
The record of the District Court proceedings in Matter No. 1606/08 be removed into this Court.
The orders made by the primary Judge be quashed.
The proceedings be remitted to the District Court to be heard and determined according to law.
The parties file within 7 days agreed minutes of order relating to the costs of the proceeding in this Court and in the District Court.
If no agreement can be reached, the Director-General should file written submissions as to costs within 7 days and the respondents (including Sophie) should respond in writing within a further 7 days.
JUDGMENT:
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40227/08
DC 1606/08
DC 1690/08GILES JA
HANDLEY AJA
SACKVILLE AJAWednesday 15 October 20080
DIRECTOR-GENERAL DEPARTMENT OF COMMUNITY SERVICES;
RE SOPHIE
Judgment
GILES JA: I agree with Sackville AJA.
HANDLEY AJA: I agree with Sackville AJA.
SACKVILLE AJA: These proceedings have been brought by the plaintiff (“Director-General”) in the original jurisdiction of the Court. The Director-General seeks orders in the nature of certiorari pursuant to s 69 of the Supreme Court Act 1970 (NSW) (“Supreme Court Act”) quashing orders made by a Judge of the District Court on 30 May 2008. The learned Judge allowed an appeal by the first defendant (“the father”) against a care order under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (“Care Act”) made on 24 August 2007 by the Children’s Court of New South Wales in relation to a child known in these proceedings by the pseudonym “Sophie”. Sophie is the daughter of the father and his wife, the second defendant (“the mother”).
The initiating process filed in the Supreme Court by the Director-General sought a hearing in the Equity Division. However, a claim for relief in the nature of certiorari quashing an order made by the District Court is assigned to the Court of Appeal: ss 48(1)(a)(iv), (2)(d) and (g). Accordingly, the proceedings were listed for hearing before the Court of Appeal.
There is no right of appeal to the Court of Appeal from a decision of the District Court quashing orders made by the Children’s Court: Druett v Director-General of Community Services [2001] NSWCA 126. However, the Supreme Court has jurisdiction to make an order in the nature of certiorari calling up the record of the District Court for the purpose of quashing orders made by that Court: Coles v Burke (1987) 10 NSWLR 429; Government Insurance Office of NSW v Ivanoff (1991) 22 NSWLR 368. Section 247 of the Care Act provides that nothing in the Act limits the jurisdiction of the Supreme Court. That provision makes it clear, if there were otherwise any doubt, that the Supreme Court retains its jurisdiction to grant relief in the nature of certiorari in relation to a decision of the District Court on appeal from a Children’s Court.
LEGISLATION
The Children’s Court made a care and protection order in relation to Sophie pursuant to s 71(1)(c) of the Care Act. That provision enables the Children’s Court to:
“make a care order in relation to a child …if it is satisfied that the child is in need of care and protection for any of the following reasons:
…
(c)the child …has been, or is likely to be, physically or sexually abused or ill-treated.”
The Care Act specifies a number of principles to be applied in the administration of the Act: s 7. The first is as follows (s 9(a)):
“In all actions and decisions made under this Act (whether by legal or administrative process) concerning a particular child or young person, the safety, welfare and well-being of the child or young person must be the paramount consideration. In particular, the safety, welfare and well-being of a child or young person who has been removed from his or her parents are paramount over the rights of the parents.”
The mother and father each appealed to the District Court pursuant to s 91(1) of the Care Act. An appeal to the District Court from the Children’s Court is by way of a new hearing and fresh evidence may be given on the appeal: s 91(2). The District Court has, for the purposes of hearing and disposing of the appeal, all the functions and discretions of the Children’s Court: s 91(4). The District Court may confirm, set aside or vary the decision of the Children’s Court and the decision on appeal is taken to be a decision of the Children’s Court and has effect accordingly: s 91(5), (6).
As I have noted, the application to this Court by the Director-General for prerogative relief is made pursuant to s 69 of the Supreme Court Act. Section 69(3) states that:
“The jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings.”
Section 69(4) provides that, for the purposes of subsection (3), the “face of the record” includes the reasons expressed by the court or tribunal for its ultimate determination.
THE ISSUE
The summons filed by the Director-General in this Court seeks the following relief:
”1.A declaration that the primary Judge made an error of law on the face of the record that he:
a.Reached a conclusion that was not open to him, given his findings of primary fact.
b.Failed to apply the correct legal standard of proof in determining the proceedings and finding that the child was not in need of care and protection on the [ground] that the child has been, or is likely to be sexually assaulted.
c.Failed to have regard to the safety, welfare and well being of the child as the paramount consideration as required under s 9(a) of the [Care Act].
2.An order removing the record of the District Court proceedings into this Court.
3. An order quashing the orders made by the primary judge.
4.An order remitting the proceedings to the District Court to be heard and determined according to law.”
The summons sought interim relief pending the hearing in this Court. However, it appears that the parties agreed to a regime that restricted the father’s access to Sophie pending the outcome of the Director-General’s application for prerogative relief.
The summons also sought final orders, pursuant to the parens patriae jurisdiction of the Court, granting the Minister for Community Services parental responsibility for Sophie. However, Mr Temby QC, who appeared with Mr Allen for the Director-General, ultimately did not press any claim made by reference to the parens patriae jurisdiction of the Court.
The Director-General’s written submissions also argued for a declaration that the ground in s 71(1)(c) of the Care Act for the making of a care and protection order had been made out in the District Court proceedings. The jurisdictional basis for making such an order was not made clear. What is clear is that relief in the nature of certiorari would not permit this Court to resolve any disputed factual issues that remain unresolved by the District Court. Mr Temby QC, when confronted with these difficulties, indicated that the Director-General would be content with the orders set out in par 9 above.
Although there was some debate in the submissions about the precise scope of s 69(4) of the Supreme Court Act, the debate proved to be of no consequence. The Director-General’s submissions were based solely on what was said to be an error of law apparent on the face of the reasons for judgment given by the District Court. It is therefore not necessary to consider whether s 69(4) authorises this Court, on an application for relief in the nature of certiorari, to have regard to the evidence before the court or tribunal making the decision subject to judicial review.
The Director-General’s written submissions suggested that the primary judgment was affected by each of the three errors of law on the face of the record identified in the claim for declaratory relief. However, the argument ultimately advanced on behalf of the Director-General, in substance, was confined to the contention that the District Court had committed an error of law apparent on the face of the record, in that the primary Judge had failed to apply the standard of proof correctly. It is that argument which is addressed in this judgment.
It should be noted that although the provisions in Chapter 6 of the Care Act relating to the publication of identifying information and like matters do not apply in terms to the present application, the Court made analogous orders in the exercise of its own powers under ss 71 and 72 of the Civil Procedure Act 2005 (NSW). These orders applied to the hearing of the application in this Court.
THE CHILDREN’S COURT PROCEEDINGS
The Children’s Court proceedings were instigated by the Department of Community Services (“DOCS”) pursuant to s 71(1)(c) of the Care Act. DOCS was prompted to make the care application to the Children’s Court because Sophie, who was five years old at the time the application was made, had been diagnosed with neisseria gonorrhoea (“NG”). It was common ground at the hearing before the Children’s Court that the father had contracted NG from a prostitute in Bali and that he was the source of Sophie’s infection. The father was charged with a serious indictable offence concerning alleged sexual misbehaviour towards Sophie which caused the infection, but that charge had been withdrawn.
The father and mother were separately represented in the Children’s Court, while Sophie was also separately represented. The father denied any wrongdoing and offered several alternative hypotheses as to how Sophie could have contracted NG without sexual misconduct on his part. He did not, however, give oral evidence.
The Magistrate relied on the observations of the High Court in M v M (1988) 166 CLR 697 at 76-77 that the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child and that, accordingly, the court must assess the risk of sexual abuse occurring even when it is unable “confidently to make a finding that sexual abuse has taken place”. The Magistrate understood M v M to mean that the Court’s inability to resolve an allegation of sexual abuse should not distract it from assessing both the child’s welfare and the risks involved in competing proposals for the child’s custody or care.
On this basis the Magistrate, although not making any finding that the father had sexually abused Sophie, concluded that contact with the father posed an unacceptable risk “in terms of her sexual safety and of her emotional wellbeing”. The Magistrate ordered that Sophie be placed in the parental responsibility of the Minister until the age of 18; that responsibility for the preservation of her culture be allocated to the mother; and that the father be prohibited from having any contact with the child until her eighteenth birthday. (The last-mentioned order appears to be authorised by s 90A of the Care Act, which empowers the Children’s Court to make an order prohibiting a parent from doing anything that could be done by the parent in carrying out his or her parental responsibility.)
THE DISTRICT COURT APPEAL
The Hearing
The hearing of the appeal by the District Court occupied eight days. The primary Judge heard evidence from a number of medical experts each of whom addressed the likelihood that NG could be transmitted to a pre-pubertal child by non-sexual means. The father also gave evidence and was cross-examined, as were other lay witnesses.
For reasons that are not clear, the proceedings in the District Court appear to have been conducted on a different basis than the care application in the Children’s Court. The sole factual issue addressed by the primary Judge in his judgment was whether Sophie had contracted NG as a consequence of sexual misconduct by the father. The answer to this factual question seems to have been regarded by the parties as determinative of the District Court appeal. The primary Judge, presumably because he was not invited to do so, did not consider by reference to M v M whether Sophie should be regarded as “likely to be …sexually abused” for the purposes of s 71(1)(c) of the Care Act, even if the Court was unable to determine whether the father had in fact sexually abused Sophie.
The way in which the primary Judge expressed his conclusions in his judgment gave rise to much debate in this Court and it will be necessary to scrutinise his reasons closely. At this stage it is enough to note that he upheld the appeal and “quashed” the orders of the Children’s Court.
The primary judgment
The learned primary Judge recorded that there was no dispute that the father had been the source of the infection of the child. Instead the factual dispute related to the manner in which that infection had occurred. The Director-General had contended that the most probable cause was sexually intimate behaviour between the father and Sophie. The father denied any such conduct and advanced four possible alternative means by which the infection may have been innocently transmitted to Sophie. His Honour identified these as the following:
·Sophie’s use of a contaminated swing;
·Sophie and her father sharing the same sleeping arrangements in accordance the family’s cultural traditions;
·Sophie and her father bathing together; and
·Sophie sharing the same towel with her father.
The primary Judge described NG as follows:
“an organism that exists in warm moist conditions and causes physical reactions in its host. It is regarded as a Sexually Transmitted Disease …because preponderantly infections of NG are caused by a sexual act of some description. An adult male with NG is more likely to infect an adult female by sexual contact than is an adult female likely to infect a male. …NG is readily treatable with antibiotics.
It has an incubation period of about 2-5 days. Symptoms in a male can be a discomfort in passing urine and a discharge via the urethra. This discharge carries the NG gonococcus. NG cannot survive heat or if the medium in which it is being carried dries out. NG survives and infects a person by attaching itself to and remaining on a mucosal surface [such as the female genitalia]. …In pre-pubertal girls, the mucosa surfaces forward of the hymen are more susceptible to be infected with NG, whereas in post-pubertal girls and women, the most susceptible mucosal surface is higher in the genitalia”.
While the experts differed in their opinions as to the likelihood of non-sexual transmission of NG, the primary Judge accepted:
“on the balance of probabilities, that if the right conditions exist, NG can infect a person without [there] necessarily being some form of sexual contact. Those conditions are the transfer of viable inoculum by any means to a mucosal surface”.
The primary Judge found that the father returned to Australia from a trip to Bali on 19 July 2006. During that visit on 16 July 2006, he had unprotected sexual intercourse with a prostitute. For some time after his return, the father and mother did not have sexual intercourse. This was not because the father thought he had a contagious disease, but because of a degree of strain in the marital relationship.
His Honour found that the mother had noticed a discharge on her daughter on 25 July 2006. Given the accepted incubation period of 2 to 5 days, this meant that Sophie was infected somewhere between 19 and 22 July 2006. The father did not notice his own discharge until 20 or 21 July 2006. His Honour therefore found that the window of “opportunity” for Sophie to be infected was the short period between 20 and 22 July 2006.
The father gave affidavit evidence that he had spent one night alone with Sophie around 23 or 24 July 2006. However, his Honour found that the father agreed that he may have stayed alone with Sophie on two nights, on about 20 and 21 July 2006. His Honour nonetheless accepted that there was no evidence that the father had contrived to be alone with Sophie. If anything, the period they spent alone together followed from the mother’s decision not stay with them for one or two nights.
The primary Judge observed that if the father had sexually interfered with Sophie during the time they spent alone, it was unlikely to have been an isolated episode. Nonetheless, there was no physical evidence of major sexual interference with Sophie; nor had she made any complaint about inappropriate behaviour on the part of the father. His Honour regarded this as “an important consideration”, particularly in view of Sophie’s strong desire to see her father again.
On the other hand, his Honour found that Sophie could have been interfered with without realising what was happening. He thought it highly improbable, that any such interference could have occurred while the family were together. Accordingly, if she had been abused without realising it, the abuse was more likely to have taken place when the father and Sophie were alone.
The primary Judge found that major penetrative sexual interference would not be necessary to communicate NG, so long as there was contact between the living organism and the mucosal surfaces of the female genitalia. He accepted that an infection that begins on the mucosal surfaces of the fourchette, vestibular fossa or hymen could ascend into the fallopian tubes if left untreated. He found that Sophie’s infection had been untreated, at least from 25 July 2006 until 14 August 2006.
The primary Judge then addressed the four “scenarios” put forward by the father as possible explanations for the non-sexual transmission of the infection to Sophie. His Honour took into account the opinion of the experts that NG survives best at 30º to 35º Centigrade and in circumstances of high humidity, which would be likely to occur on clothing, towels and hands and on body surfaces in a steamy bathroom. He also took into account that, for cultural reasons, Sophie would usually bathe with her father in a warm, humid bath-house atmosphere.
His Honour made the following findings:
·Contamination from the use of a ball swing could occur only in consequence of “chance happenings so remote as to really not be worth any serious objective consideration”.
·The suggestion that the inoculum could have been transferred through the practice of the father and mother sleeping with the child was
“highly improbable in any non-sexual way, especially given that there was no evidence of any discharge being observed on the bedding or linen”.
·The suggestion that the infection could have occurred when the father was assisting Sophie with her toileting while “perhaps not highly improbable [was] only remotely possible”.
·The “most persuasive suggestion” related to bathing. The primary Judge rejected bath-water as a probable vector of the infection, but he was prepared to accept:
“the possibility that viable inoculum of a sufficient quantity could survive on a warm moist towel and be capable of infecting [Sophie] if, whilst still viable, it came in contact with a receptive mucosal surface. While the chances of that occurring are remote in the circumstances, such a chance is at least a realistic possibility”.
The primary Judge then turned to the evidence given by the father. He accepted that the father had failed to have Sophie properly examined after her symptoms were noticed, but considered that the failure was more of a reflection on the father’s character than indicative of on whether or not sexual interference had taken place. Nonetheless, he considered the father’s behaviour as “really quite inexcusable” and did not accept that the father was unaware of the infectious nature of his own condition.
His Honour considered that the father was not an impressive witness. His Honour “tend[ed] to agree with” the Director-General’s submission that the father’s evidence did not carry conviction, that he was prone to split hairs and, at times, was reluctant to face up to the inevitable. Even so, his Honour thought that it would be dangerous to come to a conclusion about a fact in issue based on a view of the father’s demeanour alone. Accordingly, despite the reservations he had expressed about the father’s evidence, he said that he “had not taken into account against [the father] my view of his demeanour as a witness”.
Although not taking the father’s demeanour into account, the primary Judge commented adversely on the father’s behaviour. He found that the father realised he had an STD when he noticed a discharge from his urethra. On his own evidence, the father at that point began to take measures, such as washing his underwear and ensuring that he used only his own bath and hand towels. Nonetheless, with this regime in place, he continued to bathe with Sophie, to dry her and to continue other domestic practices that involved close contact with her.
His Honour adverted to questions relating to the burden of proof at a number of points in his judgment. He identified the issue as whether the Court was “well satisfied on the balance of probabilities” that Sophie’s infection was caused by the father’s inappropriate sexual conduct. He noted that the problem could not be resolved statistically, in the sense that a 1% chance that the infection could be transmitted in a non-sexual fashion had to be considered
“in light of the known facts and would not equate to being well-satisfied that improper conduct occurred”.
His Honour also noted that the allegation against the father was “of a high order”. Not only was it alleged that he had inappropriate sexual contact with Sophie, but that he had done so knowing that he had a sexually transmitted disease. His Honour cited s 140 of the Evidence Act 1995 (NSW) as providing, in effect, that proof on the balance of probabilities “will vary according to the type of proceedings and the seriousness of the allegations”. He also quoted well-known passages from the judgment of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, to the effect that it is impossible to be reasonably satisfied of the truth of a grave allegation without the exercise of caution and “unless the proofs survive a careful scrutiny and appear precise and not loose and inexact”.
Nonetheless, his Honour reminded himself that this was not a criminal trial and that the Court did not have to be satisfied of alleged misconduct beyond reasonable doubt. Even so, the allegation was serious and the outcome of the proceedings was potentially serious for the father. Later his Honour observed that the case was a difficult one, principally because no matter what the Court found, there would be no certainty in that finding.
Towards the end of his judgment, the primary Judge observed that in a criminal case based on circumstantial evidence, a direction is routinely given to a jury that they are not to act on such evidence to the detriment of an accused “unless all other reasonably available alternative hypotheses have been excluded”. He did not explain why he considered such a direction relevant to the task he was required to undertake.
The primary Judge’s essential reasoning process on the critical factual issue is contained in three paragraphs of his judgment, although it is common ground that these paragraphs need to be understood in the context of the judgment as a whole. The paragraphs (including numbering) are as follows:
“66.In a case such as this, the grounds for intervention by the Department were made out by the fact of the NG infection in the child which fact, all agree, usually means the child has been sexually interfered with. In the present case, against that prima facie position is firstly, the denial by the father of any such interference and secondly, the presentation of expert evidence that supports the possibility of the infection having occurred without sexual interference.
67.The court, on the evidence cannot say with certainty that sexual interference took place, nor can it say that it did not. That the disease may have been contracted in circumstances that are neither unreal or fanciful, despite being highly improbable, does not mean that in this particular case, having regard to the evidentiary test, the case for intervention has been made out.
68.Applying those standards, in my view, the appeals should be upheld and the orders of the Children’s Court quashed. I make those orders”.
SUBMISSIONS
Four separate sets of written submissions were filed in this Court. The Director-General urged that the Court should grant relief in the nature of certiorari. Mr Wells QC, who appeared for the father, argued that the District Court judgment disclosed no error on the face of the record. The mother’s representative, Mr Anderson, supported the father’s position. Sophie was separately represented by Ms Lawson who, in substance, also supported the father’s position that no error had been shown in the judgment of the District Court.
To some extent, the submissions resembled those that might be expected on an appeal on questions of fact and law, rather than on the more limited issues raised by an application for prerogative relief. No doubt the submissions filed on behalf of the father, mother and Sophie were influenced by the Director-General’s reliance, at least until the commencement of the hearing, on the parens patriae jurisdiction of the Court and on arguments directed to the merits of the conclusions reached by the primary Judge.
Once the Director-General abandoned reliance on the parens patriae jurisdiction and accepted that there could be no declaration going to the merits of the care application, the narrow issue before the Court emerged: Was the determination of the District Court made on the basis of an error of law that appeared on the face of the record of the proceedings, specifically the reasons for judgment?
The Director-General submitted that the findings made by the primary Judge demonstrated that the probabilities, to a high degree, favoured NG having been transmitted to Sophie as the result of sexual interference. His Honour had incorrectly allowed the appeal on the basis that an innocent mode of infection, although highly improbable, could not be excluded. This was an error of law that was apparent on the face of the record.
Mr Wells on behalf of the father submitted that the primary Judge had correctly stated the relevant principles and had not fallen into error in applying them. His Honour had rejected the Director-General’s case on the rehearing because he was left in a state of doubt as to whether the alleged sexual abuse had taken place. Paragraphs 66 to 68 of the judgment should be read as recording that finding. The reference in the first sentence of par 67 of the Court’s inability to say “with certainty” what had occurred reflected the primary Judge’s conclusion that he had been left in a state of uncertainty as to whether sexual abuse had occurred. Mr Wells submitted that the reference to the “highly improbable” hypothesis in par 67 was in response to the “frequency” argument presented by the Director-General. The Director-General had emphasised the statistical likelihood that an NG infection in a pre-pubertal girl had resulted from inappropriate sexual conduct. The primary judge intended, by way of response, to make a statistical point and was not using the expression “highly improbable” in a legal or burden of proof sense.
REASONING
Matters not in dispute
As has been noted, the issue in these proceedings is whether the determination of the District Court was made on the basis of an error of law appearing on the face of the record of the District Court proceedings. Certain matters relevant to the resolution of this were not in dispute.
First, it was common ground that the primary Judge correctly held that the Director-General bore the burden of proof on the balance of probabilities. The better view would seem to be that this conclusion flows from the interaction between ss 93(4) and 91(4) of the Care Act. Section 93(4) provides that in any proceedings before the Children’s Court the standard of proof is on the balance of probabilities, while s 91(4) provides that the District Court, for the purposes of hearing and disposing of an appeal, has all the functions and discretions of the Children’s Court under Chapter 6 of the Care Act (which includes s 93). An alternative path to the same conclusion is through s 140(1) of the Evidence Act which provides that:
“[i]n a civil proceeding, the court must find the case of a party proved if it satisfied that the case has been proved on the balance of probabilities”.
Secondly, it was common ground that the primary Judge correctly held that s 140(2) of the Evidence Act applied to the proceedings. That is, when determining whether his Honour was satisfied of the Director-General’s case on the balance of probabilities, he was to take into account:
“(a) …
(b)the nature of the subject-matter of the proceeding; and
(c) the gravity of the matter alleged.”
Thirdly, the Director-General made no submission that the District Court Judge erred in citing the observations of Dixon J, in Briginshaw v Briginshaw, as elucidating the effect of s 140(2)(c) of the Evidence Act. The decision in Briginshaw v Briginshaw pre-dated the enactment of the Evidence Act. More recent authorities have pointed out that s 140(2)(c) does not impose any hard and fast rules governing the proof of serious allegations from circumstantial evidence. The requirement stated in Briginshaw v Briginshaw, that there should be clear and cogent proof of serious allegations, does not change the standard of proof, but merely reflects the perception that members of the community do not ordinarily engage in serious misconduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170 at 171, per Mason CJ, Brennan, Deane and Gaudron JJ; Palmer v Dolman [2005] NSWCA 361 at [41]-[47] per Ipp JA (with whom Tobias and Basten JJA agreed). Despite the emphasis in the more recent cases, the Director-General did not contend that the primary judge’s citation of Briginshaw v Briginshaw was inappropriate or an indication of error.
Nor was any submission made by the Director-General that in the particular circumstances of this case s 140(2)(b) of the Evidence Act qualifies what otherwise would be the operation of s 140(2)(c). The “nature of the subject matter of the proceeding” in the present case is an application for a case order based on an allegation of sexual abuse and the alleged need to protect a child from further abuse. The interaction between s 140(2)(b) and s 140(2)(c) may give rise to questions that were not explored in argument. It is not necessary to consider any such questions in this judgment.
Fourthly, neither the defendants nor Ms Dawson on behalf of Sophie, disputed that if the primary Judge had failed to apply the burden of proof correctly, his determination was “made on the basis of an error of law” within the meaning of s 69 Supreme Court Act.
Reading the judgment in context
In considering whether the primary Judge misapplied the standard of proof, it is necessary to read his judgment as a whole. However, this is not a case of judicial review of an administrative decision. If it were such a case, the High Court has made it clear that a court exercising the power of judicial review should not be concerned with looseness of language and should not construe the reasons of the decision maker “minutely and finely with an eye keenly attuned to error”: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ. In the present case, the decision under review is that of the District Court exercising an appellate jurisdiction, albeit by way of rehearing.
The fact that the decision under review is that of the District Court, does not mean that it must be construed with an eye finely tuned to error. The reasons of the primary Judge must be read as a whole, fairly and in context. But when a District Court Judge says (as did his Honour in par 67 of his judgment) that he cannot say with “certainty” whether or not sexual interference took place, he cannot fairly be understood to be saying (as Mr Well’s submitted) that he was not satisfied on the balance of probabilities that the father had sexually abused Sophie or that he was left in a state of uncertainty as to whether that standard of proof had been satisfied. Had his Honour meant to say that, he could have been expected to do so explicitly and precisely.
The primary Judge’s reasoning process
In order to understand his Honour’s reasoning process and in particular his approach to the burden of proof, it is necessary to examine carefully the critical paragraphs of his judgments (pars 66 to 68).
The first sentence of par 66 records a finding that the Director-General was justified in intervening to remove Sophie from her family by the fact of NG infection which “usually means the child has been sexually interfered with”. This finding appears to be a reference to s 43(1) of the Care Act which empowers the Director-General to remove a child “at immediate risk of serious harm”. This interpretation of the sentence is supported by his Honour’s observation in par 69, in response to criticisms made of DOCS, that “this was clearly a case for intervention of some kind”. The sentence does not explain why his Honour rejected the Director-General’s case.
The second sentence of par 66 sets against the “prima facie position” two matters, namely the father’s denial of wrongdoing and the expert evidence supporting “the possibility of the infection having occurred without sexual interference”. This sentence is curious in two respects. First, the primary Judge made no clear finding that he accepted, rejected or was unable to come to a view as to credibility of the father’s denial of wrongdoing. Secondly, the Director-General’s case rested on far more than the statistical likelihood that any given case of NG in a pre-pubertal child is the result of sexual interference. The specific findings made by the primary Judge that support the Director-General’s case include a number of important matters:
(i)the father was the undoubted source of Sophie’s infection;
(ii)the father was alone with Sophie during the very short “window” when the infection must have occurred;
(iii)the father, knowing of his own infection, tried at the relevant times to ensure that he used only his own bath towels (thereby minimising the risk of infection via that medium); and
(iv)Knowing of his daughter’s infection, the father failed to seek medical help for some time.
The first sentence of par 67 states that the primary Judge cannot say “with certainty” whether or not sexual interference took place. As I have explained, that sentence means what it says. On that basis, it does not advance the question of whether his Honour was or was not satisfied, on the balance of probabilities, that the father had sexually abused Sophie.
The second sentence of par 67 is not easy to follow. However, it seems to be intended to convey that the high improbability of any non-sexual mode of infection in this case does not necessarily mean that the Director-General has established his case to the required standard of proof. This sentence appears to incorporate a finding that the alternative hypotheses for a non-sexual mode of infection of Sophie, whether considered individually or collectively, are “highly improbable” in the circumstances of the case.
In par 68 the primary Judge concludes that the appeal should be upheld.
As I have indicated, the primary Judge at no point specifically states that he is not satisfied on the balance of probabilities that the father had sexually abused Sophie. Nor do the reasons (as counsel for the father, mother and Sophie acknowledge) incorporate any finding as to whether or not the primary Judge accepts the father’s denial that he had sexually abused Sophie. His Honour expresses concerns about the reliability of aspects of the father’s evidence, but says that he did not propose to take into account the father’s demeanour when giving his evidence. His Honour does not say that he is unable to form a judgment as to the credibility of the father’s denial; the topic is simply not resolved or indeed addressed in the judgment.
The Director-General did not submit that the primary Judge had failed to give adequate reasons for allowing the appeal from the orders made by the Children’s Court. Nonetheless, it is not easy to discern his precise reasons for reaching that conclusion. However, when the critical paragraphs are read in the context of the judgment as a whole, it seems that his Honour concluded that the Director-General had not established that sexual abuse had taken place because the hypothesis of non-sexual transmission of NG, although “highly improbable” in the circumstances of the case, could not be excluded as a realistic possibility. In other words, since that hypothesis could not be excluded, the Director-General had failed to establish the grave allegation that the father had sexually abused Sophie. Given the way the hearing was conducted (see par 21 above) this was sufficient to warrant allowing the appeal.
It is true that the judgment does not state explicitly that the inability to exclude non-sexual transmission of NG as a realistic possibility determined the outcome of the appeal. However, pars 66 to 68, particularly his Honour’s holding that non-sexual transmission of NG was “highly improbable”, are consistent with that interpretation of the judgment. That interpretation of his Honour’s reasoning process is given added weight by the otherwise unexplained reference ([62]) to routine directions in criminal cases involving circumstantial evidence. As the defendant’s submissions to this Court pointed out, the primary Judge reminded himself that he was not hearing a criminal case. Even so, his observation that in the criminal trial a jury cannot act on circumstantial evidence “unless all reasonably available alternative hypotheses have been excluded”, is difficult to understand unless he considered that similar reasoning should be applied to the factual issue presented by the present case.
It follows from what I have said that I do not accept Mr Wells’ submission that the reference in par 67 to the “highly improbable” hypothesis is explicable as a statistical observation. His Honour had previously examined each of the innocent “scenarios” and described them variously as “remote”, “highly improbable” and “remote in the circumstances”. The most natural reading of par 67 is that his Honour is summarising the effect of the findings previously made by him on the basis of the medical evidence. In any event, even if the reference was intended to be to statistical probabilities, it would not alter the conclusion that his Honour did not correctly apply the standard of proof on the balance of probabilities.
Further support for the interpretation I have advanced of the judgment is provided by his Honour’s failure to make any finding about the reliability or otherwise of the father’s denial of wrongdoing. Not only did his Honour refrain from determining whether or not he accepted the father’s evidence, he did not conclude that he was unable to make a finding either way. His Honour simply made no finding at all as to the father’s denial that he had sexually abused Sophie.
It is difficult to follow how the primary Judge could have rejected the Director-General’s case without making any finding as to the reliability of the father’s evidence unless his Honour’s reasoning process was as I have described. As I have noted, the primary judge made a number of important findings that supported the Director-General’s case. If the father’s evidence is to be ignored, the only significant finding suggesting that the father had not abused Sophie relates to the absence of any complaint by her about sexual interference. Yet the judgment specifically accepts that Sophie could have been sexually abused without realising what was happening and that, if that had occurred, it would have been when Sophie and her father were alone.
The reasoning process I have outlined involves an error of law. The primary Judge, although stating the principles governing the burden of proof correctly did not apply them correctly. It was appropriate to take into account the gravity of the allegation of sexual misconduct made against the father, as required by s 140(2) of the Evidence Act. It was not appropriate to find that the Director-General had failed to satisfy the burden of proof on the balance of probabilities simply because his Honour could not exclude a hypothesis that, although consistent with innocence, was “highly improbable”. To approach the fact-finding task in that way was to apply a standard of proof higher than the balance of probabilities, even taking into account the gravity of the allegation made against the father.
As the High Court pointed out in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd at 171, statements to the effect that clear and cogent proof is necessary where a serious allegation is made are not directed to the standard of proof to be applied, but merely reflect the conventional perception that members of society do not ordinarily engage in serious misconduct and that, accordingly, a finding of such misconduct should not be made lightly. In the end, however, as Ipp JA observed in Dolman v Palmer at [47], the enquiry is simply whether the allegation has been proved on the balance of probabilities.
The defendants do not dispute that if the primary judge erred in the manner I have identified, the error was apparent on the face of the record of the District Court. It follows that the Director-General has made out a case for the grant of relief in the nature of certiorari.
CONCLUSION
The Director-General has succeeded in his claim for prerogative relief. The following orders should be made:
1. The record of the District Court proceedings in Matter No. 1606/08 be removed into this Court.
2. The orders made by the primary Judge be quashed.
3. The proceedings be remitted to the District Court to be heard and determined according to law.
4. The parties file within 7 days agreed minutes of order relating to the costs of the proceeding in this Court and in the District Court.
5. If no agreement can be reached, the Director-General should file written submissions as to costs within 7 days and the respondents (including Sophie) should respond in writing within a further 7 days.
It should be noted that the Court has made orders analogous to those in Chapter 6 of the Children & Young Persons (Care & Protection) Act 1998 relating to the publication of material that identifies or is likely lead to the identification of the child, the subject of these proceedings.
I do not think that there is any need for declaratory relief. The orders that have been made give the Director-General appropriate relief. I note that the Director-General did not seek an order that the proceedings be remitted to a Judge other than the primary Judge. It will be a matter for the District Court to determine which Judge hears the remitted proceedings.
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LAST UPDATED:
17 October 2008
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