WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers

[2025] NSWSC 613

Supreme Court

New South Wales

Medium Neutral Citation:

WJT v Trustees of the Marist Brothers; WXC3 v Trustees of the Marist Brothers; GAC v Trustees of the Marist Brothers [2025] NSWSC 613

Hearing dates:

12 June 2025

Date of orders:

12 June 2025

Decision date:

12 June 2025

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Grant leave to the plaintiffs to adduce evidence of the conduct and state of mind of Graeme Stuart Hawkins referable to the asserted tendencies set out in the amended tendency notices dated 11 June 2025.

Catchwords:

EVIDENCE – tendency evidence – whether the tendency evidence has “significant probative value” under s 97(1) – sexual and other offending against schoolchildren

Legislation Cited:

Evidence Act 1995 (NSW)

Cases Cited:

Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2013) 87 ALJR 668; [2013] HCA 21

Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303

Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190

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

IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14

McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045

R v Bauer (2018) 266 CLR 56; [2018] HCA 40

Taylor v R [2020] NSWCCA 355

TL v The King (2022) 275 CLR 83; [2022] HCA 35

Category:

Procedural rulings

Parties:

WXC3; GAC; WJT (plaintiffs)
Trustees of the Marist Brothers (first defendant)
Trustees of the Roman Catholic Church for the Diocese of Parramatta (second defendant)

Representation:

Counsel:
R Sheldon SC / E Anderson (plaintiffs)
C O’Neill (first defendant)
J Sheller SC / J Whealing (second defendant)

Solicitors:
Koffels (plaintiffs)
Carroll & O’Dea Lawyers (first defendant)
Makinson d’Apice Lawyers (second defendant)

File Number(s):

2023/00108744 (WXC3)
2023/00185560 (GAC)
2022/262159 (WJT)

Publication restriction:

Pursuant to s 8(1)(e) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the publication of any names of the children referred to in the evidence given is prohibited.

Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), the disclosure by publication or otherwise of any information as to the name and identify of the plaintiffs, except as may be necessary, is prohibited.

JUDGMENT

Introduction

1. WXC3 (‘the second plaintiff’) and GAC (‘the third plaintiff’) allege that they were sexually and physically abused by a teacher, Graeme Stuart Hawkins (‘Mr Hawkins’), whilst students at Parramatta Marist High School (‘the school’) between 1990 and 1996.

2. The plaintiffs seek damages, including aggravated and exemplary damages, against the Trustees of the Roman Catholic Church for the Diocese of Parramatta (‘the defendant’). They allege that the defendant is directly liable for its failure to exercise reasonable care and is vicariously liable for the acts perpetrated upon them by Mr Hawkins.

3. By amended tendency notices dated 11 June 2025, the plaintiffs seek leave to adduce tendency evidence, pursuant to s 97(1) of the Evidence Act 1995 (NSW) (‘the Act’).

4. The tendencies sought to be proven relate to Mr Hawkins acting in a particular way and having a particular state of mind. Broadly, those tendencies are that Mr Hawkins had a sexual interest in students at the school and acted on that interest by sexually abusing and engaging in sexual activity with some of those students.

Background facts: a short summary

5. For the purposes of this application, the following summary sufficiently outlines the background facts relevant to each claim.

The second plaintiff: WXC3

6. The second plaintiff attended the school from 1991 (Year 7) to 1996 (Year 12).

7. The second plaintiff’s evidence was that, whilst on a canoe camp with at least one other student in 1992, sometime around Easter, he was sexually abused by Mr Hawkins. The abuse consisted of forceful squeezing, fondling and anal rape.

8. The defendant contests that the second plaintiff was sexually abused in the way he described in his evidence.

The third plaintiff: GAC

9. The third plaintiff attended the school from 1990 (Year 9) to 1993 (Year 12).

10. The third plaintiff’s evidence was that, in 1993, when he was in Year 12 and was taking steps to complete his HSC major work for his woodwork subject, he was sexually abused by Mr Hawkins in and around the classroom and school grounds, during and after school hours. The abuse, which the third plaintiff alleges occurred on 17 occasions between July and August 1993 (approximately), consisted of anal rape and oral sex. It sometimes involved Mr Hawkins using acetone and wood to silence him during the sexual abuse.

11. The defendant contests that the third plaintiff was sexually abused in the way he described in his evidence.

The tendency notices

12. The tendencies sought to be proved in the second plaintiff’s case are Mr Hawkins’ tendencies to:

1. Have a sexual interest in students of Parramatta Marist High School.

2. Act on that sexual interest in students of Parramatta Marist High School.

3. Sexually abuse students of Parramatta Marist High School.

4. Engage in sexual activity with students of Parramatta Marist High School on camps by:

1. showering with students;

2. applying pressure holds;

3. touching students’ genitals and bottom; and

4. inserting his penis into the anus of students.

13. The tendencies sought to be proved in the third plaintiff’s case are Mr Hawkins’ tendencies to:

1. Have a sexual interest in students of Parramatta Marist High School.

2. Act on that sexual interest in students of Parramatta Marist High School.

3. Sexually abuse students of Parramatta Marist High School.

4. Engage in sexual activity with students of Parramatta Marist High School at the school.

Admission of tendency evidence: s 97 of the Evidence Act

14. The admission of tendency evidence is governed by s 97 of the Evidence Act, which relevantly provides:

97 The tendency rule

(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person’s character or otherwise) to act in a particular way, or to have a particular state of mind unless—

(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party’s intention to adduce the evidence, and

(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.

(2) …

15. The tendency with which s 97 “is concerned is a tendency to act in a particular way, or a tendency to have a particular state of mind”: Gardiner v R (2006) 162 A Crim R 233; [2006] NSWCCA 190 at [121] (‘Gardiner’). The admissibility of evidence tendered for that purpose is conditioned upon whether the court “thinks” that the evidence, on its own or with other evidence adduced or to be adduced, has “significant probative value”: McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 at [16] (‘McPhillamy’).

16. By its terms, s 97(1) requires satisfaction of two matters – the giving of notice (s 97(1)(a)) and that the evidence has “significant probative value” (s 97(1)(b)).

17. No issue is taken about the timing of the notice by the defendant. Given that stance, I accept that the plaintiffs have given reasonable notice in writing of their intention to adduce the evidence, thus satisfying s 97(1)(a).

General and introductory matters

18. Before moving to address the terms of s 97(1)(b), it is important to note that s 97 must be read with ss 94 and 95: Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd (2013) 87 ALJR 668; [2013] HCA 21 at [30].

19. Section 94 was not raised as material by any party and, thus, need not be addressed, save as to note that s 94(5) provides that, when assessing the probative value of tendency evidence under s 97(1)(b), “it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or contamination”. By s 95(1) and relevantly here, evidence that is not admissible as tendency evidence “must not be used to prove that matter even if it is relevant for another purpose”.

20. Section 97(1) contains “an unstated but obvious premise” – namely, that proof that “a person has a tendency to act in a particular way or to have a particular state of mind in some way bears upon the probability of the existence of a fact in issue”: Gardiner at [124]; Elomar v R; Hasan v R; Cheikho v R; Cheikho v R; Jamal v R (2014) 316 ALR 206; [2014] NSWCCA 303 at [360] (‘Elomar’). The purpose of adducing the tendency evidence is to facilitate proof of a fact. Thus, “proof of the tendency is no more than a step on the way to proving (usually by inference) that the person acted in that way, or had that state of mind, on the relevant occasion”: Gardiner at [124]; Elomar at [359]-[360].

21. Here, the fact in issue is whether the plaintiffs were assaulted and/or sexually assaulted by Mr Hawkins, as they have said in their evidence. The purpose of adducing the tendency evidence is to aid in the proof of that issue – namely, that because Mr Hawkins had the relevant tendency, it is more likely that he acted in the way and had the state of mind asserted by the plaintiffs: Elomar at [359].

Significant probative value: s 97(1)(b)

22. The test posed by s 97(1)(b) requires “consideration of two interrelated but separate matters” – namely, the extent to which the evidence supports the asserted tendency and the extent to which the tendency is probative of the fact or facts sought to be proved by the evidence: Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [41] (‘Hughes’); TL v The King (2022) 275 CLR 83; [2022] HCA 35 at [31]. The first matter involves consideration of “whether the proffered evidence is in fact evidence of the tendency asserted or described in the [t]endency [n]otice”: Taylor v R [2020] NSWCCA 355 at [122](i) (‘Taylor’).

23. The term “probative value” is defined in the Dictionary in the Act as follows:

probative value of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

24. As explained in Hughes at [41], there is likely to be a high degree of probative value “where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged”.

25. When determining the probative value of the evidence sought to be adduced, the following three matters should be noted. First, s 97(1)(b) requires the Court to take the proposed evidence at its highest – that is, to assume the jury or, here, the trier of fact, will accept the evidence: IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 at [51]-[52]; R v Bauer (2018) 266 CLR 56; [2018] HCA 40 at [69]. Secondly, no question as to the credibility or reliability of the evidence can arise. That is clear from what was said in IMM at [39] and [52], the latter reference which provides that:

“Once it is understood that an assumption as to the jury’s acceptance of the evidence must be made, it follows that no question as to credibility of the evidence, or the witness giving it, can arise.  For the same reason, no question as to the reliability of the evidence can arise.  If the jury are to be taken to accept the evidence, they will be taken to accept it completely in proof of the facts stated.  There can be no disaggregation of the two – reliability and credibility – as Dupas v The Queen may imply.  They are both subsumed in the jury’s acceptance of the evidence”. 

26. Thirdly, the date of the inquiry into whether Mr Hawkins had the relevant tendencies is the date of the acts allegedly committed by him upon the plaintiffs: McPhillamy at [26]; Taylor at [136] and [144].

The arguments: consideration

27. The second plaintiff seeks to adduce evidence of the tendencies of Mr Hawkins whilst taking school students on various camps (including canoeing camps) without another adult being present, and engaging in sexual activity with them in different ways (plaintiffs’ submissions at [15]).

28. The plaintiffs argue that the evidence sought to be adduced establishes that the behaviour of Mr Hawkins “conforms to a pattern consistent with what each of them said happened and shows his tendency to behave in that manner” (plaintiffs’ submissions at [3]), and that the sexual abuse of other students by Mr Hawkins using similar “techniques and practices” to those alleged by each of the plaintiffs renders their accounts about the sexual abuse perpetrated upon them more probable (plaintiffs’ submissions at [5]).

29. Putting to one side the individual plaintiffs’ evidence, the plaintiffs propose to adduce (or have adduced) evidence to support the asserted tendencies through other witnesses. Those witnesses are essentially former school students who were also subjected to abuse perpetrated by Mr Hawkins. The evidence about the abuse spans the period from approximately the mid-1980s until 1993, when Mr Hawkins ceased teaching at the school.

30. The defendant argued that the tendencies of Mr Hawkins, as contained in the notice, were too general to be probative and did not have significant probative value, noting that the probative value of tendency evidence depends upon how strongly it can be reasoned that the person will behave in a way that is consistent with the asserted tendency. In my view, that submission is sufficiently answered by the tendencies asserted and the reasoning in Hughes.

31. In Hughes, the tendencies alleged were that the accused had a sexual interest in female children under 16 years of age and, using his social and familial relationships, obtained access to female children under 16 years of age so that he could engage in sexual activities with them: at [3] and [10]. The notice particularised differing forms of sexual conduct with underage girls. One particular of that conduct was its occurrence within the vicinity of another adult: at [3].

32. The plurality held at [40]:

“In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded. The particularity of the tendency and the capacity of its demonstration to be important to the rational assessment of whether the prosecution has discharged its onus of proof will depend upon a consideration of the circumstances of the case…”.

33. Although these remarks were made in the context of criminal proceedings, in my view they apply with equal force here. That is because, putting to one side the difference in the standard of proof required, the issue that remains is whether the sexual abuse occurred. I do not accept that the asserted tendencies are, in and of themselves, insufficiently precise and, thus, that the evidence adduced to support them is incapable of having significant probative value. Further, I do not accept that the asserted tendencies are insufficiently precise for the additional reason that each of them, by their combination, are part of the deductive reasoning available to support the overall inference that the plaintiffs seek – viz., because Mr Hawkins had those tendencies, it is more likely that he acted in that way.

34. Further, there are other features of the evidence that warrant emphasis.

35. First, there is a considerable body of evidence that Mr Hawkins held a sexual interest in male students at the school and acted upon that interest by sexually abusing them. The evidence from the former students unquestionably supports the asserted tendencies of Mr Hawkins, and the tendency to engage in the specific kinds of sexual activity alleged.

36. Secondly, a common thread between the accounts of the witnesses was the tendency of Mr Hawkins to engage in sexual activity with the students whilst at camps where he was the only adult there and was, ostensibly, supervising them.

37. Thirdly, the evidence relates to Mr Hawkins showering with the students or being present when they did, and Mr Hawkins undertaking checks on the students for “ticks”. These checks involved Mr Hawkins conducting a visual and physical inspection of the genital region.

38. Fourthly, the forensic setting remains important because, although there is a broad challenge about whether the acts of abuse occurred, the precise reach of that challenge is presently unknown. It may extend to a range of matters that tend to negate the probability of the sexual abuse occurring, including matters personal to Mr Hawkins. Given that context, a tendency notice in the terms relied upon is readily explicable.

39. Fifthly, an assessment of significant probative value can vary depending upon the standard of proof and, logically, where the onus of proof lies. Thus, here, where the defendant contests all integers of the plaintiff’s evidence about the sexual assault, evidence that is capable of providing support to one or other of those integers may be of substantial importance and, as a corollary, of significant probative value.

40. In my view, the evidence adduced (or to be adduced) about the alleged tendencies of Mr Hawkins, taken at its highest, has significant probative value in connection with the claim by the second plaintiff. The frequency with which the tendencies asserted have manifested, the similarity in circumstances, and the continuity of the tendencies from the mid-1980s until 1993, all inform why I consider this to be so.

41. Much of the above reasoning in [34] and [40] applies to the third plaintiff, but additional consideration is required. His evidence, unlike the evidence of the second plaintiff, is that all instances of abuse occurred in and around the woodwork room or related to when he was working on his major project, outside usual class times or after school hours.

42. The defendant again submits that the tendencies are too general and fail to identify any plausible link between them and the sexual abuse the third plaintiff described in his evidence. That is, the evidence is insufficiently probative of the overall inference the third plaintiff seeks.

43. It may be accepted, as the defendant submitted, that there are dissimilarities between the way and manner in which Mr Hawkins sexually abused other school students and what the third plaintiff alleges occurred to him. However, it is unnecessary for the evidence to be similar or to have features of similarity for it to have significant probative value: Hughes at [39].

44. Further, although the defendant submitted that the nature of the abuse was distinctive as it allegedly involved anal rape, there is evidence that Mr Hawkins engaged in that kind of sexual abuse. That was the second plaintiff’s evidence and was also the general kind of activity described by JR in his statement dated 25 March 2025 at [21]-[22], [24] (exhibit VDB). The sexual activity involving Mr Hawkins and JR occurred on the school grounds, in the canoe club shed.

45. In my view, taken at its highest, the evidence has significant probative value given the intensity of the acts that Mr Hawkins perpetrated upon the various school students and the period of time over which they occurred; the fact that the acts perpetrated occurred at school, including during school hours (which is suggestive of the degree of brazenness); and because they involve similar sexual acts to those allegedly perpetrated upon the third plaintiff.

Orders

46. For the above reasons I make the following orders:

1. Grant leave to the plaintiffs to adduce evidence of the conduct and state of mind of Graeme Stuart Hawkins referable to the asserted tendencies set out in the amended tendency notices dated 11 June 2025.

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Decision last updated: 05 August 2025