Stephensen v The Salesian Society Inc; Easton v The Salesian Society Inc
[2018] VSC 622
•19 October 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PERSONAL INJURY LIST
S CI 2014 02411
| BRIAN GERARD STEPHENSEN | Plaintiff |
| v | |
| THE SALESIAN SOCIETY INCORPORATED & ORS (according to the Schedule attached) | Defendants |
S CI 2016 02757
| ANTHONY MICHAEL EASTON | Plaintiff |
| v | |
| THE SALESIAN SOCIETY INCORPORATED & ORS (according to the Schedule attached) | Defendants |
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JUDGE: | McDonald J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 15 October 2018 |
DATE OF RULING: | 19 October 2018 |
CASE MAY BE CITED AS: | Stephensen v The Salesian Society Inc & Ors; Easton v The Salesian Society Inc & Ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 622 |
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EVIDENCE – Separate proceedings in which each plaintiff alleges sexual abuse perpetrated by the same teacher – Whether evidence of each plaintiff admissible as tendency evidence in both proceedings – Whether parts of sentencing judgments recording admissions by alleged perpetrator of sexual abuse admissible – Evidence Act 2008 ss 55, 63, 91, 97, 135.
PRACTICE AND PROCEDURE – Whether proceedings should be heard jointly – Whether proceedings should be heard before jury or by judge alone – Civil Procedure Act 2010 s 7.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | Ms L Whalan SC with Dr G Boas | Porters Lawyers |
| For the Defendants | Mr A Clements QC with Mr P Hamilton | Wotton & Kearney |
HIS HONOUR:
Each of the plaintiffs was a student boarder at Salesian College, Rupertswood. Mr Easton alleges that he was sexually assaulted and abused by two teachers: Father Klep in 1979 and Father Fox in 1980. Mr Easton alleges that the defendants were vicariously liable for the sexual assaults committed by Father Klep and Father Fox. In the alternative, Mr Easton alleges the defendants were negligent, which caused the harm he has suffered, namely, psychiatric injuries and disabilities. The defendants admit that Mr Easton was sexually abused by Father Klep as alleged at paragraph 19 of the further amended statement of claim (FASOC). They otherwise do not admit the allegations of abuse, and deny negligence and vicarious liability in respect of all abuse/alleged abuse.
Mr Stephensen alleges that he was sexually assaulted and abused by Father Fox on multiple occasions in 1980. He alleges that the defendants are vicariously liable for the assaults and abuse. In the alternative, he alleges that the defendants were negligent which caused the harm that he has suffered, namely, physical and psychiatric injuries and disabilities. The defendants do not admit the abuse allegations and deny negligence and vicarious liability in respect of all abuse/alleged abuse.
On 15 October 2018 the court heard submissions regarding the following matters:
(i) The admissibility of a statement to police by Luke Quilligan dated 24 August 2004. Mr Quilligan has died since making the statement. The plaintiffs seek to admit the statement into evidence pursuant to s 63 of the Evidence Act 2008 (‘the Act’). In his statement Mr Quilligan states that he was sexually assaulted on four separate occasions by Father Fox (penetration of his anus by Father Fox’s penis). He states that on each occasion, the school principal, Father Jennings, was present. He also states that Father Klep took him to his office and rubbed him on the back and legs and ‘it felt really wrong’.
(ii) The admissibility of tendency evidence, notice of which has been given:
(a) in the Stephensen proceeding, pursuant to notices dated 20 September 2018 and 12 October 2018; and
(b) in the Easton proceeding, pursuant to two notices dated 15 October 2018.
(iii) The admissibility of parts of the sentencing judgments of:
(a) Gucciardo J, dated 26 May 2014 in DPP v Frank Klep [2014] VCC 2294; and
(b) Hogan J, dated 16 December 2005 in R v Frank Gerard Klep.
(iv)Whether the proceedings are to be heard before a jury or by judge alone.
Following the conclusion of the hearing of 15 October 2018, Mr Clements QC, who appeared with Mr Hamilton for the defendants, informed the court that the defendants withdrew their objection to the admissibility of Mr Quilligan’s police statement, subject to redaction of second hand hearsay portions of the statement. The plaintiffs accept that there are two paragraphs in the statement which contain second hand hearsay which should be redacted. Mr Quilligan’s statement was the subject of hearsay and tendency notices filed pursuant to ss 67 and 97(1) of the Act in both proceedings. As a result of the defendants’ concession, it is no longer necessary to consider these notices.
By notice dated 12 October 2018, Mr Stephensen seeks to admit as evidence of the tendency of Father Fox to engage in sexual acts with boys, the oral evidence of Mr Easton, which is to be given in support of his claim for damages. The particular evidence relates to the allegations in paragraphs [26] and [27] of Mr Easton’s FASOC, to the effect that in 1980 he passed out after consuming a drink given to him by Father Fox and when he awoke he had a sore anus.
If Mr Easton gives evidence consistent with the allegations in paragraphs [26] and [27], such evidence will be capable of rationally affecting the assessment of the probability of a fact in issue: whether Father Fox sexually assaulted Mr Stephensen. As such, the evidence is relevant evidence within the meaning of s 55 of the Act. The admissibility of the evidence is subject to s 97(1)(b), which requires the court to be satisfied that the evidence will, either by itself or having regard to other evidence adduced by Mr Stephensen, have significant probative value.
Tendency evidence will have significant probative value if it could rationally affect the assessment of the probability of a fact in issue to a significant extent.[1] The evidence must be influential in the context of fact finding.[2]
[1]Hughes v The Queen (2017) 92 ALJR 52, 61 [16] (‘Hughes’).
[2]IMM v The Queen (2016) 257 CLR 300, 314 [46].
I am satisfied that, if Mr Easton gives evidence consistent with the allegations in paragraphs [26] and [27] of the FASOC, such evidence will be of significant probative value in the Stephensen proceeding. The evidence will significantly affect the rational assessment of the probability of whether Father Fox sexually assaulted Mr Stephensen.
Mr Clements submitted that the circumstances in which the alleged sexual assault of Mr Easton occurred were too disparate from the alleged assault of Mr Stephensen to be of significant probative value. The alleged assault of Mr Stephensen occurred in Father Fox’s office in the context of discipline. On the other hand, the alleged assault of Mr Easton occurred in the infirmary whilst Mr Easton had passed out after consuming a drink given to him by Father Fox. I reject Mr Clements’ submission that the difference in the circumstances in which the alleged assaults took place renders the evidence of Mr Easton inadmissible as tendency evidence in the Stephensen proceeding.
In Hughes v The Queen, a case involving multiple complainants alleging one or more sexual offences, the High Court considered the admissibility of tendency evidence of each complainant’s evidence of sexual offences and uncharged acts in proof of sexual offences alleged to have been committed against other complainants. In Hughes, the nature of the offending differed significantly from one charge to another. Nevertheless, the High Court held the evidence of complainants to be admissible as tendency evidence in respect of other complainants. Taken as a whole, the evidence demonstrated a common feature that a man of mature years had a sexual interest in female children under 16 years of age, and a tendency to act upon it by committing sexual offences against them opportunistically in circumstances which entailed a high risk of detection.[3]
[3]Hughes (2017) 92 ALJR 52, 68 [57]–69 [60]; R v Bauer (a Pseudonym) [2018] HCA 40 [59].
Mr Stephensen relies upon four common features of the alleged abuse of himself and Mr Easton by Father Fox:
(v) the same abuser;
(vi)the same school;
(vii) in a relatively proximate timeframe; and
(viii) both assaults involving anal sex by Father Fox on the victim.
In addition to the common features set out above, the probative value of the evidence of sexual assault of Mr Easton by Father Fox is to be assessed together with other evidence to be led in the proceeding.[4] That evidence includes the statement of Mr Quilligan to the police that he was sexually assaulted, involving anal penetration, on four separate occasions in a proximate timeframe, by Father Fox.
[4]Hughes (2017) 92 ALJR 52, 69 [61].
When the common features referred to above are considered in conjunction with the evidence constituted by Mr Quilligan’s police statement, I am satisfied that the foreshadowed evidence of Mr Easton that he was sexually assaulted by Father Fox as alleged in paragraphs [26] and [27] of the FASOC is of significant probative value. Such evidence will be admissible as tendency evidence in the Stephensen proceeding. I am not satisfied that the probative value of the evidence is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the defendants. There is therefore no basis for refusing to admit the evidence pursuant to s 135 of the Act.
By notice dated 15 October 2018, Mr Easton gives notice of his intention to admit as tendency evidence, oral evidence to be given by Mr Stephensen in support of his damages claim that he was anally raped by Father Fox on three occasions in 1980. This evidence is admissible as tendency evidence in the Easton proceeding for the same reasons that the evidence of Mr Easton’s alleged sexual assault by Father Fox is admissible in the Stephensen proceeding. There is no basis for refusing to admit the evidence pursuant to s 135 of the Act.
The plaintiffs seek to admit into evidence those parts of the sentencing judgments of Gucciardo J and Hogan J which recorded admissions made by Father Klep in pleading guilty to:
(ix) 14 counts of indecent assault in respect of 12 males under the age of 16 years. The offences occurred between 1973 and 1979 at Salesian College, Rupertswood (Hogan J proceeding).
(x) One charge of buggery, ten charges of unlawfully and indecently assaulting a male, one charge of attempted buggery, two charges of indecent assault and one charge of rape (Gucciardo J proceeding). The offences were committed between February 1973 and December 1984. The charges involved 15 separate complainants. Charges 1 to 12 relate to the period 1973 to 1979. The complainant in respect of Charge 12 was Mr Easton. Charges 13 to 15 involve three separate offences committed between 1982 and 1984.
Mr Clements submitted that no part of the judgments of Gucciardo J and Hogan J are admissible. He relies upon s 91 of the Act. Section 91(1) provides:
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.
Dr Boas, who appeared with Ms Whalan SC for the plaintiffs, submitted that s 91(1) has no application to those parts of the sentencing judgments of Gucciardo J and Hogan J which record matters which were admitted by Father Klep for the purposes of his guilty plea. He submitted that these matters were not ‘in issue’ in the proceedings because they had been admitted. He submitted that in these circumstances s 91(1) was not engaged.
Section 91 does not prevent the tender of judgments which contain findings as to the existence of facts relevant to the issues in the trial in which they are tendered. Rather, it prevents the judgments being tendered for the purpose of proving the existence of those facts.[5]
[5]Ainsworth v Burden [2005] NSWCA 174 [109].
The plaintiffs do not seek to admit the sentencing judgments of Gucciardo J and Hogan J for the purpose of proving the existence of the facts which were necessary to establish the liability of Father Klep for the offences for which he had been charged. Rather, the plaintiffs rely upon the admitted matters in the sentencing judgments as evidence of the wide ranging nature of the conduct of Father Klep involving 27 separate complainants during the period 1973 to 1979. The plaintiffs submit that this evidence supports an inference that the defendants must have been aware prior to 1979 that Father Klep was sexually abusing students. The plaintiffs submit that the evidence is relevant to questions of foreseeability and the defendants’ vicarious liability for Father Klep’s conduct.
It is unnecessary for the court to express a concluded view as to whether, by reason of the admissions, the subject matter of those admissions was no longer ‘in issue’ in the criminal proceedings. ‘Facts in issue’ are those facts ‘necessary by law to establish the claim, liability or defence, forming the subject matter of the proceedings.’[6] It is arguable that, irrespective of whether Father Klep made admissions, the subject matter of the admissions was necessary to establish his liability for the offences charged. Ultimately, however, nothing turns on this point. The plaintiffs seek to admit into evidence the admissions recorded in the judgments of Hogan J and Gucciardo J in respect of the period 1973 to 1979, not to establish facts upon which he was found criminally liable, but rather to support an inference that the defendants were aware that he was sexually abusing students prior to 1980. Paragraphs 1 to 13 of the sentencing judgment of Gucciardo J and paragraph 1 to 16 of the sentencing judgment of Hogan J will be admitted into evidence. I have excluded admissions in respect of the period post 1980 as I do not consider these to be relevant to the issues of reasonable foreseeability and/or vicarious liability.
[6]Jill Anderson, Neil Williams and Louise Clegg, The New Law of Evidence (LexisNexis Butterworths, 2nd ed, 2009) 170 [55.7].
Finally, I note that for the purpose of the proceeding before Gucciardo J there was a document prepared which recorded admissions made by Father Klep. Prima facie, subject to hearing further submissions, it would appear that this document, independent of the sentencing judgment of Gucciardo J, would be admissible in its own right as an admission pursuant to s 81 of the Act. Prima facie, no question arises as to the application of s 91 in respect of this document.
I turn now to the issue of mode of trial. Mr Clements advanced a submission, not pressed with any vigour, that the court should order separate trials of the claims of Mr Stephensen and Mr Easton, irrespective of whether the proceedings were heard before a jury or before judge alone. There is no legitimate basis for making an order that the two proceedings be heard separately. Such an order would significantly increase legal costs. It would be antithetical to the efficient use of judicial and administrative resources. It would significantly extend the period within which one of the proceedings would be heard and determined. Shortly stated, an order for separate trials would be inconsistent with the overarching purpose prescribed by s 7 of the Civil Procedure Act 2010.
The real question for determination is whether the proceeding should be heard before a jury or before judge alone. Mr Clements submitted that there was ‘a special risk’ that if the proceedings are heard together before a jury the defendants will not receive a fair hearing. In this regard, he placed particular reliance upon the nature of the allegations advanced by the plaintiffs. He submitted that there was a real risk that a jury when considering the allegations of sexual assault of school children would respond emotively and not bring to bear an impartial mind when undertaking its deliberations. I reject this submission.
The plaintiffs have a prima facie right to have their claims heard by a jury. In Matthews v SPI Electricity (Ruling No 8), J Forrest J set out the principles relevant to an application for a jury trial, equally relevant to an application for trial by judge alone:
Appropriateness of jury trial: discretionary considerations
In Birti & Anor v SPI Electricity & Anor, I set out what I thought to be the principles relevant to an application for a jury trial under r 47.02. I restate those here:
(a)subject to compliance with the rules of the court, a party is entitled to seek trial by jury provided the claim is founded in contract or in tort;
(b)for that entitlement to be enlivened, it is necessary for the party seeking trial by jury to comply with the procedural requirements of r 47.02(1)(a) and (b); otherwise the trial will be before a judge sitting alone (absent an order of the court to the contrary). Part 6 of the Juries Act provides the statutory basis for the conduct of the trial by jury;
(c) where a party has given notice regularly that a trial by jury is required, that will be the prescribed mode of trial unless the court is persuaded to dispense with the jury;
(d) notwithstanding the right of a party to opt for a jury trial, there resides in the court an overriding discretion to determine the mode of trial, regardless of the wishes of the parties;
(e) a court may at any stage of a proceeding direct a trial without a jury if it is satisfied that it should do so;
(f) as a general rule in this State (where civil juries are still the norm in tortious injury and defamation litigation), juries should be regarded as capable of dealing with issues of legal complexity as well as difficult issues of fact;
(g) the onus of proof in persuading a court to dispense with a jury trial rests upon the party making that application. A court will not lightly make such an order, given the entitlement of the other party to seek trial by jury. There must be some special reason to do so or, to put it another way, a party should not be deprived of such an entitlement in the absence of good cause;
(h) even if it is established that there will be a substantial saving in time and cost in a trial by judge alone that is not necessarily sufficient to deprive a party of its prima facie entitlement to trial by jury. Notwithstanding that trial by judge alone may take less time, there are countervailing advantages in a trial by jury such as the promotion of settlement and finality and, in some cases, savings of court time;
(i) the considerations which may influence a court to dispense with a jury trial are unfettered; the discretion may be exercised where it is warranted by the dictates of justice;
(j) subject to the statement of general principle set out in (i), in determining whether to accede to an application to dispense with the jury, the following matters may be relevant:
• the complexity of the factual matters that the jury will need to consider;
• the complexity of the legal issues relating to liability, particularly where the claim involves consideration of multiple causes of action and multiple defendants;
• the complexity of the jury’s task in relation to the assessment of damages;
• the potential duration of the trial (although this, of itself, could never be the determining factor); and
• the stage at which the proceeding or trial has reached; and
(k) a decision as to the mode of trial (by a judge alone or by jury) cannot of itself amount to a miscarriage of justice as whichever form is a trial according to law.[7]
[7]Matthews v SPI Electricity (Ruling No 8) (2012) 35 VR 643, 653 [56] (citations omitted).
I do not accept that there is ‘some special reason’ as set out in above in (g) for denying the plaintiffs their prima facie right to trial by jury. I agree with the observation of J Forrest J that juries should be regarded as capable of dealing with issues of legal complexities as well as difficult issues of fact. As I pointed out to Mr Clements during the course of the hearing on 15 October 2018, juries are regularly called upon to hear evidence in criminal trials of a very similar nature to that which has been foreshadowed in the present proceedings. There can be no suggestion that juries are inherently incapable of impartially dealing with allegations of sexual assault of school children.
Mr Clements placed particular reliance upon a judgment of Rush J in Svajcer v Woolworths Ltd.[8] In Svajcer the plaintiff claimed damages, including damages for loss of earning capacity for a physical injury suffered in the course of employment and also an alleged psychological reaction consequent upon the physical injury. The plaintiff originally sought a trial by jury. The defendant intended to adduce evidence of the plaintiff’s conviction of and incarceration for child sex offences, on the basis that these matters were relevant to assessing the cause of the plaintiff’s psychological injury and what his work capacity would have been in the absence of the work injury. Rush J agreed that the evidence was relevant but ordered that the trial not proceed before a jury. His Honour observed that there was a:
very real risk that members of the jury may ground their decision or be influenced in their decision making not on the facts of the case, as to whether or not the defendant is liable in negligence to the plaintiff, but rather on an improper basis, such as whether the plaintiff is morally deserving of such a finding given that he has committed abhorrent crimes in the past.[9]
[8][2015] VSC 543.
[9]Ibid [11].
The judgment of Rush J in Svajcer is readily distinguishable. First, it was the plaintiff himself who, having originally sought a trial by jury, made application for the trial to proceed before a judge alone. Second, and more importantly, the risk of prejudice which arose in Svajcer arose by reason of the disconnect between the circumstances underpinning his claim for damages (a workplace injury) and the material proposed to be relied upon by the defendant concerning the plaintiff’s conviction for sexual offences. No such disconnect arises in the present proceedings. The allegations of sexual assault are at the heart of the plaintiffs’ claims for damages for negligence.
Quite apart from the two matters set out above, I do not accept that the judgment of Rush J stands for the proposition that in any case involving allegations of sexual assault of children, a trial should proceed before judge alone. Such a conclusion would be inconsistent with current practice in criminal trials where juries are regularly called upon to make findings based upon evidence of sexual assault of children.
The question of whether or not a trial proceeds before judge alone or jury involves exercise of judicial discretion. I am not satisfied, on the material presently before the court, that there is a real likelihood that the defendants will not receive a fair hearing before a jury properly instructed. Nevertheless, if it be the case that during the course of the trial the defendants have a legitimate basis for a concern that matters have arisen which raise doubts as to the capacity of the jury to impartially determine the claims before it, the defendants will have the right to make an application for discharge of the jury.
The trial of both proceedings will proceed before a jury, to be empanelled on 22 October 2018.
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SCHEDULE OF PARTIES
| S CI 2014 02411 | |
| BETWEEN: | |
| BRIAN GERARD STEPHENSEN | Plaintiff |
| - and - | |
| THE SALESIAN SOCIETY INCORPORATED | First Defendant |
| GREGORY CHAMBERS (as Executor of the Estate of the late TERRENCE JENNINGS) | Second Defendant |
| GREGORY CHAMBERS (as Executor of the Estate of the late WALLACE CORNELL) | Third Defendant |
| GREGORY CHAMBERS (as Executor of the Estate of the late WILLIAM EDWARDS) | Fourth Defendant |
| GREGORY CHAMBERS (as Executor of the Estate of the late JAMES CARROLL) | Fifth Defendant |
| GREGORY CHAMBERS (as Executor of the Estate of the late PETER SWAIN) | Sixth Defendant |
| FRANK BERTAGNOLLI | Seventh Defendant |
SCHEDULE OF PARTIES
| S CI 2016 02757 | |
| BETWEEN: | |
| ANTHONY MICHAEL EASTON | Plaintiff |
| - and - | |
| THE SALESIAN SOCIETY INCORPORATED | First named Defendant |
| GREGORY CHAMBERS as executor of the estate of the late TERRENCE JENNINGS | Second named Defendant |
| GREGORY CHAMBERS as executor of the estate of the late WALLACE CORNELL | Third named Defendant |
| GREGORY CHAMBERS as executor of the estate of the late WILLIAM EDWARDS | Fourth named Defendant |
| GREGORY CHAMBERS as executor of the estate of the late JAMES CARROLL | Fifth named Defendant |
| GREGORY CHAMBERS as executor of the estate of the late PETER SWAIN | Sixth named Defendant |
| FRANK BERTAGNOLLI | Seventh named Defendant |
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