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[2025] NSWDC 205
General information, not legal advice.
District Court of NSW
2025-06-06
Newlinds SC DCJ
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Davey v Want [2025] NSWDC 205
Hearing dates: 26-28 May, 30 May 2025
Date of orders: 6 June 2025
Decision date: 06 June 2025
Jurisdiction: Civil
Before: Newlinds SC DCJ
Decision: (1) The Plaintiff’s claim is dismissed.
(2) Verdict for the Defendant.
(3) The Plaintiff is to pay the Defendant’s costs of the proceedings.
Catchwords: CIVIL PROCEDURE – Stay of proceedings – Application for permanent stay of proceedings based on the passing of approximately 54 years since the alleged events – Has the impoverishment of evidence caused by the passage of time resulted in a fair trial not being possible – Principles to be applied – Stay refused
TORTS — Trespass to the person — Alleged sexual assaults in 1971 or 1972 when the plaintiff was 6 or 7 years’ old – Proof – Onus of proof – Assessing reliability or accuracy of evidence based on memory of events more than 50 years ago
Legislation Cited: Evidence Act 1995 (NSW) s 140, s 165B
Limitation of Actions Act 1974 (Qld)
Cases Cited: Blatch v Archer (1774) 98 ER 969
Briginshaw v Briginshaw (1938) 60 CLR 336
Dedakis v Deligiannis [2024] NSWSC 1018
Fox v Percy (2003) 214 CLR 118
GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32
Longman v R (1989) 168 CLR 79
M v M (1988) 166 CLR 69
Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218
Musa v Alzreaiawi [2021] NSWCA 12
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170; [1992] HCA 66
Nguyen v Tran [2018] NSWCA 215
Watson v Foxman [1995] 49 NSWLR 315
Willmot v Queensland [2024] HCA 42
Category: Principal judgment
Parties: Robyn Davey (Plaintiff)
George Want (Defendant)
Representation: Counsel:
B Dooley SC / A Saleh (Plaintiff)
P Skinner (Defendant)
Solicitors:
Shine Lawyers (Plaintiff)
MJO Legal (Defendant)
File Number(s): 2023/422992
Publication restriction: Nil
By Statement of Claim filed 22 November 2023, the Plaintiff claims damages from the Defendant as a result of alleged misconduct by the Defendant in 1971 and 1972 when the Plaintiff was 6 or 7 years old and the Defendant 18 or 19 years old. They lived close to each other just outside Grafton and could be described as neighbours.
The cause of action is the intentional torts of assault and trespass to the person, the particulars of which are two occasions of alleged sexual assault by the Defendant on the Plaintiff, which involved him placing his hands under her underwear and touching her vagina.
The Plaintiff contends that the conduct has caused her significant loss and damage because it is, at least, part of the cause of her suffering from post-traumatic stress disorder (“PTSD”) for the majority of her life.
The case is complicated by the fact that the Plaintiff accepts that, by the time she was 6 or 7 years old and was allegedly assaulted by the Defendant, she had already been the subject of similar sexual abuse by two adult uncles.
The Defendant denies that he ever sexually or otherwise assaulted the Plaintiff.
Last October, the matter came before me for the hearing of an application by the Defendant that the proceedings be permanently stayed and/or dismissed as an abuse of process. The fundamental proposition being that the passing of approximately 54 years since the event made it impossible for the Defendant to receive a fair trial.
During the course of argument, the option of adjourning that application until the High Court of Australia delivered its judgment in Willmot v Queensland [2024] HCA 42 (“Willmot”) was discussed and it seemed to me that that was an appropriate course. The law, as it then stood as declared by the High Court in GLJ v Trustees of Roman Catholic Church for Diocese of Lismore [2023] HCA 32 (“GLJ”), had, by that time, already been the subject of a number of authorities interpreting what the High Court had said in that case on this important question. It was clear that the High Court, having granted special leave in Willmot, was shortly to clarify any misunderstandings as to the meaning and proper application of GLJ.
For that reason, I adjourned the hearing of the Notice of Motion until 26 May 2025, but made it clear that, in the event that Motion was unsuccessful, the matter would immediately proceed to a final hearing.
On the first day of this hearing, being Monday, 26 May 2025, I heard the Defendant's Motion and received evidence and submissions from both Mr Skinner on behalf of the Defendant/Applicant and Mr Dooley SC, who appeared with Mr Saleh on behalf of the Plaintiff/Respondent.
After considering the evidence, the written and oral submissions of Mr Skinner, and the written submissions of Mr Dooley and Mr Saleh, I was satisfied that the application for a permanent stay/dismissal ought be dismissed and that the matter needed to proceed to a final hearing, which hearing then commenced.
I made the following orders:
The Defendant’s Motion filed 15 October 2024 is dismissed.
Without disturbing any costs orders to date, the costs of the Motion today be costs in the cause.
I indicated that I would provide written reasons in my final judgment. These are those reasons.
At [15] of Willmot, the High Court identifies six propositions stated by Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218 (“Moubarak”), which I will not reiterate.
Nothing the High Court says thereafter can be read as, in any way, taking issue with those propositions. In effect, the High Court in Willmot expands and explains the rationale of each of Bell P’s points and how they each fit into consideration of an application for a permanent stay in this sort of case.
The High Court, whilst dealing with s 11A of the Limitation of Actions Act 1974 (Qld) (the equivalent of s 6A of the New South Wales legislation), reiterates and perhaps clarifies, not just what Bell P said in Moubarak, but, importantly, what the High Court stated in GLJ and how those principles are to be applied on a case-by-case basis.
The High Court emphasised that the removal of time limits on sexual assault type claims created a “new world" or a “new reality" in a number of separate, but related ways.
First, there is no longer a bar in certain types of cases created by virtue of the effluxion of time imposed by statute. It follows that such a claim can now be brought at any time, with the obvious reality that child sexual abuse claims may be commenced many years after the alleged abuse occurred: Willmot at [20]. Second, because of that, there is no onus on the Plaintiff to justify any delay in bringing proceedings: Willmot at [21]. Third, the inevitable result of commencing proceedings long after the events alleged will give rise to new and greater difficulties in the trial process than had been experienced by courts exercising civil jurisdiction prior to the removal of the limitation period. Thus, part of the “new reality" is that “impoverishment of evidence” will now be encountered and is to be expected in many cases which were previously statute barred, and the courts must deal with that impoverishment: Willmot at [22]. Fourth, impoverishment of evidence caused by the passing of time in of itself will not enliven the power to stay for abuse of process. Something more than the passing of time is needed. That passing of time must be found to have had a “burdensome effect" in the sense of some negative forensic consequence which is “so serious that a fair trial is not possible”: Willmot at [23]. Fifth, a fair trial is an essential common-law right which was not removed by the amendments to the limitation statute. Sixth, the concept of what is a fair trial is flexible and varies from case to case and will change over time with changes to prevailing social values. Ultimately, the question of a fair trial ought be resolved so as to avoid practical injustice: Willmot at [24]-[26]. Seventh, the bringing of proceedings to an end on a finding based on a lack of ability to provide a fair trial to a Defendant must only be used as a “last resort or in “exceptional cases": Willmot at [26]. Eighth (and perhaps another way of expressing the third and fourth propositions), the inevitable fading of memories and loss of evidence must, in the context of the “new world," be properly understood as routine and to be expected and thus falls far short of an exceptional case: Willmot at [27].
Finally, at [29] and [30] of Willmot, the High Court emphasised that because cases proceeding where there is an unavailability of evidence is not uncommon in litigation and there is no limitation on criminal prosecutions for serious crimes such as sexual assault, the courts have, over many years, developed techniques to adjust the scales of fairness, so as to counterbalance any prejudice caused to a Defendant by delay and at [30], sets out some of those techniques.
The Plaintiff alleges that when she was 6 or 7 years’ old, there were two incidents. The first involved her sitting on the lap of the Defendant on a tractor when they went for a drive in a paddock in the presence of the Plaintiff's father, wherein the Defendant put his hand under the Plaintiff's underwear and touched her vagina. I will refer to this as the ‘tractor event.’ The second, some reasonably short time later, probably in the same year, at a family function at a house occupied by her Auntie Sadie and Uncle Will, the Plaintiff sat on the Defendant's lap with a blanket over them when he, in the presence of other family members, put his hand, again under her underpants and touched her vagina. I will refer to this as the “family gathering event.’
The Statement of Claim is reasonably detailed, although of course, the precise date upon which each of the events took place is not disclosed. Thus. as is emphasised by Mr Skinner, depriving the Defendant of the opportunity to investigate whether he has an “alibi"-type answer to the allegations. The Plaintiff alleges that she made some complaints to one person, who will be called in the case, although, that evidence is itself a memory of a conversation between children at primary school some 50 years ago.
The Defendant’s emphatic answer is that neither of the events happened. He has filed a number of witness statements saying that and explaining why he feels the Plaintiff’s version of events is implausible. As far as the tractor event is concerned, he will say that he has no recollection of ever allowing the Plaintiff or any other person to sit on his lap whilst he drove the tractor. He will say both he and his father would have considered that to be an unsafe practice at the time. He will also say that he never drove a tractor on the particular property where the Plaintiff says the event occurred. As far as the family gathering event is concerned, he will say that there were never any family events held at Auntie Sadie and Uncle Will’s premises – to this the Plaintiff will respond and says it was a particular gathering to do with the age and infirmity of a grandmother (Sarah) who was having falls – to which the Defendant will respond by calling evidence, not just from himself but from a number of other relatives, to the effect that Grandma Sarah was in rude health in 1971 and 1972, did not use a walking stick at that time, was stable on her feet, and was not in need of care. She did not die until many decades later.
Many of the people present at the family gathering event are now dead, as is the Plaintiff's father, who is said by the Plaintiff to have been present at both of the alleged events. All of these people could have potentially given evidence as to what happened, although there is no allegation by the Plaintiff that any other person actually saw what is alleged to have occurred.
Mr Skinner also emphasises very great difficulties occasioned in the assessment of damages component of the case (assuming liability is found in favour of the Plaintiff) because of the interrelationship between the alleged sexual assault by the Plaintiff and the close to contemporaneous other sexual assaults perpetrated on the Plaintiff. The agreed position of the experts appears to be that it is the cumulative effect of the sexual assaults, including the Plaintiff's mother’s very adverse reaction to finding out about the second allegation (not related to the Defendant), which, taken together, is the cause of the psychiatric injury to the Plaintiff.
I accept that the passage of time has made the unravelling of that damages issue a little more difficult for the Defendant than it would have been if not for the delay and that has had detrimental forensic consequences to the Defendant. However, I am not satisfied that forensic disadvantage is so serious that a fair trial is not possible in the way explained by the High Court in Willmot. As to liability, I have concluded that the real forensic disadvantages occasioned to the Defendant as a result of the passage of time are no more than is to be expected and can be managed by the Court so as to provide a fair trial.
My reasoning is as follows. Insofar as the liability issues are concerned i.e. whether the alleged conduct happened or not, whilst there is undoubtedly forensic disadvantage caused to the Defendant as a result of the effluxion of time, the death of many potential witnesses, together with the inevitable fading of and potentially changing memories of events so long ago, I do not think that forensic disadvantage is anything more than what is to be expected as inevitable in a court case commenced more than 50 years after the events in question. It can be managed by techniques, including some of those identified in Willmot at [29]-[30]. It should not be overlooked that this same passage of time is obviously a significant forensic disadvantage to the Plaintiff in seeking to prove a case based largely on her memory of something that happened when she was a very young child, more than 50 years ago.
As far as the quantification of damages is concerned, I accept that the facts of the case are unusual. The history of the Plaintiff being the subject of alleged sexual abuse by three different people by the time she was six years old, will make the assessment of damages problematic and will raise squarely a question of “disentanglement." However, I do not think that difficulty, which, again, is a forensic difficulty for both the Plaintiff and the Defendant, is a consequence of the effluxion of time since the events. I think that those problems, acute as they are, would have existed, almost with the same difficulties, even if the case was brought on shortly after the events.
I am not persuaded the forensic detriment suffered by the Defendant as a result of the 50 or more years passing is such as to make this case to be so exceptional as to justify a finding that he cannot have a fair trial so as to enliven the last resort/exceptional remedy sought by the Defendant.
It is for those reasons that I dismissed the Motion.
The issues in the case can be simply stated.
Did the Defendant deliberately sexually touch the Plaintiff on either or both of the occasions as alleged? If so, what, if any, damage has been caused to the Plaintiff as a result of that conduct? How is that damage to be properly quantified?
The threshold question is whether the allegations as to the events have been made good. I will deal with that issue first.
Most of the Plaintiff’s evidence in chief was in written statements. She supplemented that with oral evidence in chief and was cross-examined.
I should immediately say that I was impressed with the Plaintiff as a witness of truth and reject the submission made on behalf of the Defendant that she is lying, in the sense of deliberately making up the allegations against the Defendant knowing they are false. What that means is that I accept that she has the memories she describes of the relevant events and honestly believes that they occurred. Having said that, I must take into account my own fallibility in assessing truthfulness of witnesses by observations of demeanour as explained in cases such as Fox v Percy (2003) 214 CLR 118 (“Fox v Percy”). I must look for objectively reliable evidence which might corroborate the Plaintiff’s memory. Such evidence is a much more reliable guide to what happened than human memory.
That finding of truthfulness is only the first step. It does not mean that the Plaintiff’s evidence is sufficiently reliable or accurate so as to allow me to be satisfied that the Plaintiff, who at all times bears the onus of proof, has proved the events occurred the on the balance of probabilities – taking into account what is sometimes referred to as the "Briginshaw" standard, or the “Briginshaw warning": Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”).
As Leeming JA explained so pellucidly in Dedakis v Deligiannis [2024] NSWSC 1018 at [15]:
“15. All of the events occurred more than a decade ago, and many occurred more than three decades ago. Memory is fallible and malleable, especially memory concerning past beliefs. One of Lord Leggatt's first judgments contains an extensive and influential consideration of the frailties of memory, including (relevantly for present purposes) that memories of past beliefs are revised to make them more consistent with present beliefs: Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at [18]. It is usually desirable to start with reliable contemporaneous documents and uncontroversial facts. “Usually, the rational resolution of an issue involving the credibility of witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation”: Camden v McKenzie [2008] 1 Qd R 39; [2007] QCA 136 at [34] (Keane JA). That is not to deprecate the potential significance of testimonial evidence. In particular, as was said by Bell P in ET-China.com International Holdings Ltd v Cheung [2021] NSWCA 24; 388 ALR 128 at [27]-[29], testimonial evidence may provide valuable assistance in explaining the context of, and omissions from, the contemporaneous documents. That is of particular pertinence in the present case, in respect of the property transactions which occurred in 1988 and 1992. Accordingly, I start with what is either uncontroversial or established by contemporaneous documents.”
In this case, with potentially one exception, which casts some doubt on the accuracy of the Plaintiff’s memory, there is no evidence that is uncontroversial or established by contemporaneous documents.
The first occasion that the Plaintiff gave any detailed account to anyone as to what occurred is when she told her psychologist, Judy Bray, in 2020, that she remembers being sexually assaulted by three people, the first two being uncles and the last being a “neighbour." These assaults, all in the Plaintiff's memory, occurred within a few years of each other and therefore, there is a possibility that in her mind she is misremembering or her memories as to her interactions with the Defendant are infected, in the sense of jumbled, by her memories of the other events. The second objective fact relevant to the reliability of her memory is that it is evidence as a 50 something year-old woman as to what she remembers happening to her between the ages of 6 to 7.
The Plaintiff has a very clear memory of the events in question. For example, she has a clear memory of precisely what pants she was wearing on each occasion and can explain why she remembers those pants and why they were special to her. Her memory is particularly vivid in a way that I felt was not consistent with what I would expect of such an ancient memory. However, Dr Schelle, psychiatrist, explained that is not unusual but also said that I ought not read anything into the vividness of the memory one way or another when assessing its reliability. For reasons I will come to, there is at least one aspect of her vivid memory as to the family gathering event which I am satisfied is not accurate. This concerns the frailty of Grandma Sarah as the purpose of the gathering and whether there was ever any family gathering at that property.
Accepting that it is now understood that there are many reasons why victims of sexual assault, in particular children, might not complain of such events at the time, the Plaintiff gave explanations for why she did not complain to her parents or any other adult at the time, which, as Mr Skinner has pointed out are not necessarily particularly plausible. The Plaintiff said that she did not complain to her father at the time of the tractor event because her mother got angry with her when she heard about her complaining about one of the earlier incidents with an uncle. That is an understandable reason to not tell her mother. However, her own evidence is that her father was very supportive of her in relation to the earlier incidents and had taken steps to protect her from that uncle. She said that she did not tell her father because she was concerned that, as they were renting from a relative of the Defendant, that a complaint might cause their family to lose the accommodation. I got the very strong impression that this explanation was not in her mind as a child but is something she has thought about since. It strikes me as a very unlikely thing for such a young child to understand, let alone be concerned about.
The Plaintiff, in giving histories to her psychologist, has, according to the clinical notes, given somewhat inconsistent statements as to what occurred, which the Plaintiff accepts are inconsistent. She explains this by saying that the notes taken contemporaneously by each of the psychologists must contain errors.
I shall return to these inconsistencies in due course.
There is one “complaint” in the evidence based on a remembered conversation between the Plaintiff and her cousin Pamela Skinner when they were both in primary school to which I will also return.
To sum up, my finding in relation to the Plaintiff is that she gave honest evidence. I therefore accept she has memories of the events alleged. The question becomes, are those memories reliable to such a level, in light of all the other evidence, to satisfy me that the Plaintiff has proved her case on liability?
To resolve that question, it is necessary to judge her evidence in the context of all the evidence, including what little contemporaneous evidence there might be, and perhaps most importantly, to judge her evidence against the evidence of the Defendant.
The Defendant gave evidence both in writing and orally and was extensively and effectively cross-examined by Mr Dooley.
The Defendant's said he has at no time, sexually assaulted the Plaintiff or anyone else and, whilst he accepts that he knew the Plaintiff when he was a teenager in high school and she was a six- or seven-year-old girl, that he had very little to do with her.
As to the tractor event, At paragraphs [11] and [12] of his Statement of 10 October 2024, he goes into some considerable detail to explain why it is that he considers it very unlikely that he would have been doing tractor work on the property alleged by the Plaintiff at the time of the tractor event. He says there was very little need for tractor work at that property and that any such work that was done on that property involving a tractor would have been a rare occasion and the work would have been done by his father.
He also was at pains to explain that, at the relevant time, he did not have his driver’s licence and that the only way the tractor could get from his father's property to the property where the alleged assault occurred was by driving the tractor along the Pacific Highway, which he said his father would not have allowed him to do as it was unsafe.
Finally, he said that his father, Cecil Want, was extremely safety conscious in relation to, amongst other things, driving tractors and that he would never have, because his father would not have allowed him to, taken any child for a ride on a tractor, sitting on his lap or otherwise, especially in the presence of his father.
As far as the family gathering event was concerned, he said that the property, occupied by Auntie Sadie and Uncle Will was a property which he very rarely visited and that he never saw the Plaintiff or any of her siblings at that property. He denies ever watching television at that property or ever having the Plaintiff or any child sit on his lap at that property, or at all, whilst television was being watched.
He also gave evidence that the address of the property was never as described by the Plaintiff.
The Defendant gave evidence and was cross-examined on many topics about which it was obvious to me that he did not have and could not be expected to have any reliable memory. For example, there were topics concerning how long the Defendant’s hair was from time to time, whether Grandma Sarah used a walking stick and at what point in her life she may have needed a cane, who as between the cousins liked each other and did not like each other, in particular whether Billy and the Defendant got on, whether there were any incidents between Billy and the Defendant, the actual address of properties, whether the Defendant ever played cricket with his cousins, and so on. Overall, I got the clear impression that the Defendant was doing the best he could to grapple with that sort of evidence, in circumstances where the events and facts concerned occurred more than half a century ago when he was a 17- or 18-year-old boy.
In his written statement, he said that Sarah had lived on a property with Aunt Mary, and in 1970, Sarah had travelled to Sydney to take care of Mary when she was ill. He said that, in 1971, Sarah was “fit, stable on foot, and capable" and he considered it unlikely the family gathering event had occurred for any reason connected to Sarah's health because, at the time, “she had no need for care." In his oral evidence, he said that, as far as he was aware, other than a short stay in hospital immediately preceding her death in the 1990s, Sarah had never been in any form of residential care. In cross-examination he denied that Sarah had ever used a walking stick, however, after being taken to a photo showing Sarah with one next to her, he accepted that it was possible that she had used one in the 1980s when that photo was probably taken, but remained positive and steadfast that she was capable, fit and stable in the early 70s and that there was never any discussion at around that time to the effect that she might need to go into care.
In relation to the evidence the Defendant gave concerning the tractor and its use on the property occupied by the Plaintiff at the time, together with the address of the property, he was subjected to forensic attack and criticism. It was submitted by Mr Dooley that a fair reading of his evidence in chief, and his evidence in cross-examination, was that he was seeking to create an impression that it was inherently implausible that he would have ever been at that property driving a tractor because of the safety concerns involved in driving a very old and battered tractor along the Pacific Highway in 1971 by a person who did not have a driver’s licence.
Mr Dooley's cross examination exposed the true situation, which was that, whilst it is very unlikely that the Defendant would have driven the tractor between the properties at the time, the fact is the tractor was driven between those properties from time to time by his father. There was tractor work carried out on the property by his father and sometimes he did assist his father in that tractor work.
In other words, it is not implausible that all three of the tractor, the Defendant's father, and the Defendant were on that property in 1971 doing some tractor work. Nor is it implausible that on occasion he drove the tractor on the property.
I do not accept Mr Dooley’s submission that the Defendant originally set out to create a false impression. When one compares what he was saying in his written statement about his inability to drive a tractor along the Pacific Highway in 1971 against the allegation made in the Plaintiff's written statement to which he was responding, the Plaintiff’s statement leaves one with a clear impression that present at the tractor event were no more than the Plaintiff, the Defendant, the tractor, and the Plaintiff's father. There was no suggestion at that time by the Plaintiff that the Defendant's father, Cecil, was also present.
It is easy to understand why, in those circumstances, the Defendant thought it would assist him if he could demonstrate that the Plaintiff's evidence could not be right by demonstrating that it was not plausible that he had driven the tractor from his parent’s property to the property in question and that he would never have been operating the tractor on the property when his father was not present.
In subsequent statements and her oral evidence, it became clear that the Plaintiff's case included a recollection that the Defendant's father, Cecil, was also present. Thereafter, the Defendant, especially in cross-examination, persisted for a time with insisting that his evidence concerning the unlikelihood of him driving the tractor between the properties remained relevant. Perhaps he could not see the point in the witness box, but I do think, at least during his oral evidence, he got to the stage where he was maintaining evidence to the effect that it was not possible for him to be at the property with the tractor, in circumstances where there was now an obvious explanation for how the tractor got there, viz that it was driven there by his father Cecil.
The Defendant, and perhaps this is to his credit, conceded that he had sought to create what he agreed was a misleading impression in this evidence. When asked to explain why he did that, he was unable to do so, but I think there is an explanation which is not sinister and is not consistent with some sort of consciousness of guilt. That explanation is the Defendant is a man in his late 60s seeking to answer very serious allegations about conduct he is said to have engaged in more than 50 years ago and he was doing his best in his evidence to try and explain why what the Plaintiff was saying did not make sense to him. The original evidence was not misleading, but it became so, perhaps when the Defendant failed to see the importance of the change in the Plaintiff’s evidence. It is of course important to remember that innocent people lie or seek to create false impressions by telling half-truths, and that people do that for all sorts of reasons and that it is not necessarily evidence of consciousness of guilt or even material upon which to doubt the overall credibility of the witness. I think this is one of those occasions. That is not to suggest that I think the Defendant was lying per se, but I do consider there came a point in his oral evidence where he deliberately sought to create a misleading impression. In the circumstances he finds himself in and in the circumstances of how that evidence came to be given originally, that is not something I consider ought be held against him.
There is also considerable energy by the Defendant, again in his written and oral evidence, asserting that the street address of the property ascribed to it by the Plaintiff in the early 1970s was not then and had never been the address of that property.
However, under cross-examination by Mr Dooley, that unravelled. It is quite clear that the property over the last 50 years has had up to 4 different official or unofficial addresses and may well be known by different people by other different descriptions. This includes its number, but also the name of the road, which used to be called the Pacific Highway and is now called Big River Way.
I did form the impression that the Defendant was seeking to cast aspersions on the Plaintiff's credit or reliability in relation to the address in circumstances where he knew that the property had very many different addresses. I consider he was seeking to create a false impression in doing so.
Mr Dooley, on behalf of the Plaintiff, has submitted that I should regard these attempts by the Defendant to misrepresent the true state of affairs as being evidence of consciousness of guilt. In other words, the reason he was not candid was because he knows that he did the things he is accused of and is seeking to escape responsibility. In the alternative, Mr Dooley submits that, at the very least, these aspects of his evidence reflect on his credit overall.
Otherwise, overall, the Defendant presented as a slightly awkward, nervous, and defensive man who was anxious to clear his name. That defensiveness, anxiety, and nervousness is to be expected, and I think is a neutral factor in assessing whether he is being truthful or not.
My overall impression of him is that he was an honest witness doing the best he could in very difficult circumstances to try and give evidence about many matters which, if he is to be believed, were mundane events at the time, through the haze of distant memories. Again, I accept my own fallibility in reaching such a conclusion based on his demeanour in the witness box.
Importantly, on the central questions, that is whether he sexually assaulted the Plaintiff on the two occasions alleged, he was steadfast and consistent in his denials.
I do not accept that the evidence the Defendant gave concerning his inability to drive the tractor along the Pacific Highway, whether he ever drove a tractor at the property, and his evidence concerning the street address are evidence of consciousness of guilt. I do consider that he sought to create a false impression as to both topics (albeit in relation to the tractor topic, his original evidence was entirely appropriate because he did not understand the particulars of the allegation he was answering). Nonetheless, based on my overall impression of the Defendant as a witness and taking into account that he is an elderly man seeking to answer very serious allegations made against him that are said to have occurred more than 50 years ago, I do not consider that these aspects of his evidence reflect any consciousness or acceptance by him that he is in fact guilty of what the Plaintiff alleges.
However, These matters do give me some pause to reflect on his credibility as a witness overall but, having done so and when I consider his evidence as a whole, I am satisfied that on the central questions in the case, that is whether the two events occurred, he was giving his best honest recollection. Like the Plaintiff, in relation to events so long ago, it is of course possible that the Defendant did what he is accused of doing but now so many years later simply does not remember doing so. Human beings have a remarkable ability to remember the past in a way that reflects well on themselves and to actually “forget” they might have done things that reflect poorly on them. This process is not deliberate, but is a part, probably a necessary part, of the human condition. The longer the time elapsed, the more this process becomes likely. The Defendant’s evidence of what he does not remember is not necessarily reliable. I also take into account my own fallibility in being able to assess credibility by observations made of witnesses giving evidence.
Pamela Skinner gave evidence in chief by a written statement, supplemented orally, and was cross-examined.
She is a year older than the Plaintiff and is her first cousin.
They were friends as children and spent considerable time together. They went to the same high school but to different primary schools.
In a year which is unclear, but when they were both still at primary school aged 9 or 10, she remembers the Plaintiff being upset and crying wherein they had a discussion when she asked the Plaintiff ‘what the matter was’ and the Plaintiff said to her:
“George follows her and that he touches her in her pants.”
The George being referred to was the Defendant.
Pamela said she told the Plaintiff they should tell their mothers, but the Plaintiff did not want to, and they never discussed the matter again.
Pamela also gave evidence that she had been molested by an uncle known as Uncle X when she was about four years old, and that her sister Jenny had also, as far as she knows, been molested by two uncles being known as Uncle X and Uncle Y (I propose to anonymise the names of the various uncles, long since dead, who are the subject of various untested accusations).
When cross-examined, Pamela was very confident as to her recollection of the conversation down to the specific words spoken, being “George follows me and touches me in my pants". She has no recollection of the Plaintiff ever mentioning to her that the Plaintiff had been also touched inappropriately by Uncle Y. Apart from the one very short conversation which I have already recorded, there were no further discussions between them as to what might have happened between the Plaintiff and George, including the extent of what happened or any further details.
There was some inconsistency between Pamela’s and the Plaintiff's recollection of this same discussion. In both her written and oral evidence, the Plaintiff was confident that she told Pamela, not only about the conduct of the Defendant, but also about the abuse of her by her uncles. On the other hand, Pamela appeared to be equally confident that there was no such discussion.
Moreover, the evidence of this conversation is given without any real context around it as to how the topic came up and what else these primary school girls might have discussed at the time.
There was nothing about Pamela Skinner’s demeanour which caused me to doubt her credibility as to reliability. However, I was somewhat perturbed by her insistence of an accurate recollection of actual words spoken. For reasons I will come to, I think there is real significance in the words actually said, because slight changes in the words and a full understanding of the context may lead to significantly different meanings. I am not persuaded that the actual words were said, but I accept that something negative was said by the Plaintiff about the Defendant’s conduct, which Pamela took to mean that the Plaintiff felt he had done something to her that was inappropriate.
Janet Skinner gave evidence by written statement.
She was not cross-examined.
She is known as ‘Jenny’ and is the first cousin of the Plaintiff, who she has known since she was born. Growing up, they lived rurally about an hour away from where the Plaintiff lived and would often see each other. When they were young they spent a lot of time at Julie Want’s property next door, where they would play with Julie and her brother Billy. Their cousin is the Defendant, who they would see at that property from time to time. She remembers that the Defendant was older than her, with shoulder length hair and “seemed to hang around us kids, particularly the girls…" He would, from time to time, touch her on her arm, which he did not like. She said that she had been sexually abused by her Uncle X when she was somewhere between 6 to 9 years’ old and that the Plaintiff’s demeanour throughout the balance of their lives where they have kept in contact reminds her of herself as a survivor of sexual abuse.
As to her statement that the Plaintiff reminded her later in life of someone who was a survivor of sexual abuse as a child, in the context of this case, I can place no weight on that observation (even if I was otherwise minded to), because the Plaintiff on her own case was sexually abused by two men other than the Defendant, so one might expect her to present as a survivor of sexual abuse.
The only other topic of note in Janet Skinner's evidence was her observations that the Defendant used to “hang around the other kids and the girls." This is a topic about which quite a lot of evidence was given by many of the witnesses, about which there is dispute. The preponderance of evidence is that the Defendant was, even as a boy, someone who spent more time with adults than other children, and in particular, did not like playing with girls. How much weight can be placed on observations such as that given by people about events more than 50 years ago is a matter of concern.
Having heard all the evidence on that topic and without in any way suggesting that Janet Skinner or anyone else who gave evidence to the contrary is being untruthful, on balance, I am satisfied that, as a young boy and teenager, the Defendant did spend more time with adults than other children and did not spend a particular amount of time playing with other children. That is not to say that he never played with other children at all.
Ms Caisley is the first cousin of the Defendant and was born in 1952, so she was 19 or 20 years’ old in 1971 and 1972.
After finishing school in Grafton in 1969, she went to Teachers College in Lismore and was there in 1970 and 1971. She returned home on holidays during this period. In 1972, she moved to Sydney to begin a long career as a teacher.
She and the Defendant both attended South Grafton High School, travelling to and from school together, she being a year ahead of the Defendant. She remembers him being a regular and attentive student who was good at maths. She remembers him having long hair, which was very scruffy and that their grandmother Sarah often paid her $0.50 to cut his hair and that there were often disagreements because he never wanted to have his hair cut and insisted on keeping it long.
She liked the Defendant then and still likes him and gave character evidence to the effect that she finds the allegations being made in these proceedings by the Plaintiff, if true, to be totally out of character for him and said that he never took any interest in anyone younger than himself.
She was cross-examined at some length about the physical well-being or infirmity of the grandmother Sarah in 1971 and 72 and, in particular, whether Sarah was using a walking stick in 1971 or 72 and whether there were ever any discussions, to her knowledge, as to whether Sarah should at that time be going to some formal care arrangement, rather than staying at home being looked after by her daughter, Mary.
She has no recollection of being at any family gathering at Auntie Sadie’s home. She did not like going there at all because there was a dog she considered vicious and was very scared of.
Ms Caisley was confident that, in 1971 and 1972, Grandmother Sarah did not use a walking stick, was in very good health, and was active and stable on her feet. She said that she may well have had a walking stick in the late 1980s or early 1990s and needed some looking after, but that she did not die until she was 94 years old and only went into care a few months before her death some 20 or more years after the early 70s.
I found Ms Caisley to be an impressive witness and have no reason not to accept her evidence, in particular, I accept her evidence as to her opinion as to the Defendant's character, together with her evidence as to the physical state of Grandmother Sarah in the early 1970s, as well as her evidence as to the length of the Defendant's hair at around that time.
Ms Granleese gave evidence again by written statement, supplemented orally, and was cross-examined.
She is another cousin of the Defendant and was born in 1957. The Defendant was four years older than her, and they went to the same primary school and high school, although of course were in different years.
She said that the Defendant did not spend any time with her when they were growing up and that the only family get-togethers that she can recall were at Christmas, and they were held at her Grandparent’ home, and that during those get-togethers the Defendant would often associate with older people rather than children younger or his own age. His interests appeared to be farming and listening to the older people swapping stories. She does not have any recollection of any family get-togethers being held in Uncle Wills and Aunt Sadie's home.
She remembers the Defendant coming to a 21st birthday party and remembers that he sat with the older people.
She said she was surprised to hear that the Plaintiff suggested there was a family gathering at Auntie Sadie's and Uncle Will’s home in 1972, when she would have been about 15 years old. She does not recall that event nor any family gathering hosted by Auntie Sadie at that house. There was a church gathering at that house on one occasion, but the Defendant was not there as he did not go to church with them.
She was cross-examined in particular as to her evidence concerning events at the premises occupied by Auntie Sadie and Uncle Will. She insisted that she had no recollection of any such events and said that she would have found that strange and a “big deal” because it was a very small house and if the whole family gathered there with all the children, as they would have because there were no babysitters available, there would not have been enough room in that house.
She spoke about Grandma Sarah in her written statement, in her oral evidence and in cross-examination. She said the earliest that Grandma Sarah started using a walking stick was sometime after 1975, when Ms Granleese left Grafton to attend university. She had no memory of Sarah being in need of a walking stick or using one prior to that.
I have no hesitation in accepting her evidence as her best memories of times long past.
Trevor Want gave evidence in writing, orally, and was cross examined.
He is the first cousin of the Defendant, being born in March 1961. He said the Defendant was and still is eight years older than him. In 1971 or 1972, they did not have a great deal of interaction at a social level. The only time he was in the Defendant’s company in that period was if he was included in farm work when the Defendant was also involved.
He recalls the Defendant generally associating with adults whenever farm work was being done and that he only mixed with older people, rather than people his own age or younger when they were young.
In his opinion, the Defendant was good at farm work and would give Trevor instructions about things such as cattle work, fencing, and riding horses.
He said that the Defendant had a pragmatic manner but was kind and helpful. As they have grown older, he came to know and understand the Defendant's father, Cecil, and that Cecil's character was one of a very law-abiding and cautious man. He was always very fussy about doing the right thing in looking after people.
He gave character type evidence to the effect that the allegations made by the Plaintiff are, in his opinion, if true, entirely out of the character of the Defendant that he knows.
He said that the Defendant did not have short dark hair in high school. During that period, he had long scruffy hair which their grandmother – Sarah – did not like and used to make his sister Margaret cut it. As far as the Massey Ferguson tractor owned by Cecil Want at the time was concerned, Trevor did not drive the tractor until he was a teenager. It was a very difficult tractor to drive, and the clutch was heavy. It was, in fact, the worst tractor he has ever driven.
He does not recall being part of any family gathering at his Auntie Sadie's place in the early 1970s and, if he was at such a gathering, does not recall ever playing with the younger girl cousins on any occasion. He also does not remember ever seeing the Defendant sit down to watch television.
In cross-examination he was steadfast in his lack of recollection as to any family gathering at Auntie Sadie's house. He has no recollection of ever being at such a gathering.
Trevor Want mentioned Grandma Sarah in his written statement. He gave a brief description of Sarah’s position within the Want family tree and recalled that often the family would gather to celebrate her birthday but stated that such events were never at Auntie Sadie and Uncle Will’s property.
As to an altercation between Billy (another cousin) and the Defendant when they were teenagers, he said that Billy had a very bad temper at the time but was not aware of any allegation about an incident between Billy and the Defendant involving an axe, but he did say that, if such an incident happened and Billy was involved, that would not have surprised him.
Again, as to my observations as to demeanour, I found Trevor Want to be an entirely satisfactory witness and have no reason not to accept his evidence as to his recollections as to what was going on in the early 1970s and also his assessment of the Defendant's character.
Ms Want gave evidence in the same way as the other witnesses and was cross-examined.
She is the first cousin of the Defendant, was born in 1964, and is the youngest of two children of William and Sadie Want (Auntie Sadie and Uncle Will).
She recalls the Defendant coming to her parents’ home when she was a child. He would mostly come to do work with, or for, her father. He would have a cup of tea with the parents and then he would leave to attend to farm work or go home. She has no recollection of the Defendant ever playing games with her, or her brother. She accepted that he might have been involved in the odd cricket game in the backyard when her father was involved and has no recollection of ever watching television with the Defendant.
She has no recollection of Janet Skinner ever attending her parents’ home. She does not agree that the Defendant was often at her parents’ home.
Grandma Sarah, to her recollection, never visited her house. As to any altercations between her brother, Billy, and the Defendant, she has heard nothing about any incident concerning an axe, but there was one fistfight that she recalls, and she said that Billy and the Defendant did not get on but does not have any recollection or understanding as to why that was so.
In cross-examination, it was put to her that there was a family gathering at a house in 1971 or 1972. She had no recollection of such a gathering and suggested that maybe there were some church group gatherings at that house. She has no recollection of the Defendant ever watching television at such a gathering, or at all, at their house. Her evidence on that topic was she has no recollection one way or the other but does not think it happened.
Again, she was a witness who presented well, and I accept her evidence as to her recollections of events in the early 1970s.
Judy Bray is a psychologist who treated the Plaintiff by way of counselling under a Mental Health Treatment Plan in October 2020 and September 2022, the Plaintiff having been referred to her by her general practitioner. Ms Bray considers the Plaintiff suffers from depression, anxiety, and PTSD, all as a result of having being sexually abused as a child.
Thankfully, the Plaintiff has responded very well to the treatment and has maintained and sustained psychological improvement as a result.
Ms Bray was not called as a witness, but her correspondence to the referring general practitioner, together with her clinical notes, were tendered without objection.
Leaving to one side the diagnosis and treatment about which there really is not any dispute, the relevance of the clinical notes are a series of notes made by Ms Bray as to the history given to her by the Plaintiff and various comments by the Plaintiff to Ms Bray about what she intended to do.
Relevantly, the following portions of the notes were the subject of submissions.
In their initial session on 19 October 2020, Ms Bray records:
“Robyn was abused at age 5 by 3 separate males – both family and neighbours."
“Robyn reported that the family member who had abused her as a child has been making contact with Robyn's mother to find out what Robyn is doing…”
“Robyn has decided to go a step further and made an appointment to see a solicitor and to have that person be a witness to “her story"… Whether it becomes a court matter for Robyn is secondary to her taking back her "own power".”
“Robyn has been proactive in attending the police station and giving statements to charge her Uncle with his sexual abuse against Robyn as a child… We agreed to extend the sessions for three months with the option of bringing the sessions sooner if Robyn needs additional support when the charges laid against her Uncle and the court date is set"
Mr Skinner has emphasised a number of discrepancies between what the Plaintiff apparently told her psychologist from time to time and her evidence before me, which he contends demonstrate a real possibility that, in her memory, the Plaintiff is jumbling up memories as to events involving her uncles with her memories concerning the Defendant.
The identified discrepancies are:
The reference to the age of five on 19 October 2020, which is more likely to be the incidents with the uncles, rather than anything that happened between the Plaintiff and the Defendant when she was six or seven, and the reference in the same note to “neighbours” plural as opposed to singular;
The statement that the family member who had abused her as a child had been making contact in 27 July 2021. At that point in time, the perpetrators of the other sexual assaults were all dead and therefore it seems that the Plaintiff referred to the Defendant as a “family member”; and
The references to going to the police and charging on 17 February 2022, in the notes on two occasions, speak in terms of going to the police and to charge an “Uncle" in circumstances where the various relevant uncles were deceased.
It is, of course, entirely possible that there was a miscommunication between the Plaintiff and Ms Bray or that Ms Bray has simply made mistakes or assumptions between listening to the Plaintiff and making her notes.
Whilst I do not regard the reference to the Plaintiff as being five years old or the plural reference to neighbour as opposed to the singular neighbour as significant, I do consider that the statements concerning who the Plaintiff proposed to speak to the police about and to charge being an “Uncle” or a “family member” are significant. There is, at least a possibility, that these notes do accurately record what the Plaintiff said, which is inconsistent with her memory of the events in question and who the actual perpetrator might have been, which is, as one might expect, somewhat jumbled and confused, which does cast some doubt as to its accuracy.
The Plaintiff has been seen by two psychiatrists, Dr Justine Shelle, at the request of the Plaintiff's solicitors, and Dr Lucas Murphy at the request of the Defendant’s solicitors.
Both Dr Shelle and Dr Murphy produced two reports, and after meeting in conclave, produced a Joint Report dated 8 October 2024, all of which were tendered in evidence.
Dr Schelle was cross-examined.
As to diagnosis, there is no issue between the doctors, and this is consistent with the diagnosis of Ms Bray, but that, as a result of sexual abuse the Plaintiff suffered as a child, she has significant damage to her mental health from which she has never fully recovered. They both agree that the cumulative effect of those sexual assaults is the cause of their clinical diagnoses of depression, anxiety, and PTSD.
Both doctors were asked, on the assumption that there were three perpetrators of sexual abuse on the Plaintiff by the time she was six or seven years old – including the sexual abuse, the subject of these proceedings, by the Defendant – to try and apportion, as between those events, their contribution to her psychiatric injury. Dr Shelle gave the following opinion in her report:
“As stated in the previous paragraph, the alleged assault at age three did not cause Ms Davey significant psychiatric sequelae. The other experiences of assault did cause her more distress. If apportionment was required, I would give the initial alleged assault when she was three a rating of 5% as she could recall it happened, but it did not obviously affect her to any significant degress [sic], with the other 95% being divided equally between the further three episodes of assault. Therefore, the experience of being assaulted by her paternal uncle would relate to approximately 32% of her symptoms, with the two assaults allegedly conducted by George Want contributing to 64% of her subsequent psychiatric condition of PTSD. Apportionment is far from an exact science however, and it is probable that the experiences of being abused by George Want would have contributed more highly to her PTSD symptoms as she was older and could recall the abuse more clearly, and it occurred on two separate occasions.”
“We identified several traumas, any of which would have caused significant damage to a young child. This included the abuse by an uncle, the abuse by a different (paternal) uncle, and the abuse by Mr George Want.
The culmination of these traumas caused significant damage to Ms Davey's mental health, from which she never fully recovered. The events for which she is claiming essentially made her mental health problems and social adjustment from bad to worse.”
Dr Murphy also opined that he considered the Plaintiff's recollection of her mother's reaction, when told about the second sexual assault, which was to get angry with her, was itself its own “traumatic incident.”
When cross-examined Dr Shelle said that, whilst she did not think that the reaction by the mother was itself the type of trauma that qualified for the diagnostic criteria of PTSD, she did accept that it really formed part of the overall traumatic experience of being assaulted by the second uncle.
She also agreed that she had assumed that there was only one event of sexual assault between the second uncle and the Plaintiff, which is, on the Plaintiff's evidence, inaccurate. There were in fact three separate incidents.
She accepted that, to a large degree, she took into account the Plaintiff's own subjective views as to the effect the various events had on her mental health and did concede that, in the context of a medico-legal appointment concerning a court case against the Defendant, it was only to be expected that the Plaintiff would, when explaining her symptoms for that purpose, emphasise (without any in any way suggesting this would have happened dishonestly or deliberately) the events concerning the Defendant.
Because of the changed assumption concerning the events involving the second uncle, Dr Shelle reduced her percentage assessment from 64% to 54%.
As Dr Shelle as good as accepted, not only is there no exact science to such an apportionment, I do not really think it is something that is within the experience or expertise of a practising psychiatrist to apportion in a legal sense the effect of a series of events on a person’s psychiatric wellbeing. For the purpose of treating someone with PTSD who has encountered a series of traumas, there is no need to apportion in any way the contribution of any of those events to the psychiatric damage. Dr Shelle as good as accepted this, both in her Report and in cross-examination, which is why she says it is not an exact science.
I shall return to this aspect of the evidence when I come to the assessment of damages question.
In 1988, the High Court emphasised a need for the exercise of caution before accepting claims alleging sexual abuse, describing such claims as “often easy to make, but difficult to refute": M v M (1988) 166 CLR 69 at [76]-[88].
Similar remarks were made in the well-known decision of Longman v R (1989) 168 CLR 79 (“Longman”) at [92], where it was observed that human experience demonstrates complainants in sexual assault cases sometimes tell an entirely false story which is very easy to fabricate but extremely difficult to refute, where such stories may be fabricated for all sorts of reasons and in some cases for no reason at all. In Longman, the Court was not just speaking about fabricated evidence, it was also considering reliability. In particular, in Longman at 107-108, the well understood fallibility of human memory was described as follows:
“The fallibility of human recollection and the effect of imagination, emotion, prejudice and suggestion on the capacity to “remember” is well documented. The longer the period between an “event” and its recall, the greater the margin for error. Interference with a person's ability to “remember” may also arise from talking or reading about or experiencing other events of a similar nature or from the person's own thinking or recalling. Recollection of events which occurred in childhood is particularly susceptible to error and is also subject to the possibility that it may not even be genuine: Hunter, Memory, rev ed (1964), at pp 269-270.”
“human memory … is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest …. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”
In other words, it is well understood that people can honestly “remember" “events,” but that memory does not necessarily mean that the event actually occurred. This is the difference between fabricated evidence and unreliable evidence. Honest evidence as to a memory goes only so far in proof. The next important question is the reliability or accuracy of that evidence. It is at this point that an understanding of the fallibility of human memory has an important part to play.
As to the ability of judges to assess the credibility or indeed the reliability of witnesses by observations based on demeanour, the well-known portion of the majority of the High Court's judgment in Fox v Percy (2003) 214 CLR 118 at [31] needs to be emphasised:
“Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical.”
In Willmot at paragraph [30], as I have already observed in the portion of this judgment dealing with the stay application, the High Court identified that in order to ensure a fair trial as that concept is understood in the common law, there are available to courts a number of techniques. The first identified by the High Court as the “Briginshaw” principle to which I have already referred. That is that the civil standard of proof may be more difficult to satisfy according to the gravity of the fact to be proved. Second, the principal found in cases like Blatch v Archer (1774) 98 ER 969, all evidence is to be weighed according to the proof which was in the power of one side to have produced and in the power of the other to have contradicted. Third, a court is not bound to accept uncontradicted evidence and the facts proved must form a reasonable basis for a definite conclusion, affirmatively drawn, of the truth or accuracy of which the tribunal of fact may be reasonably satisfied. Fourth, as is so well explained by the High Court in Fox v Percy and by McLelland CJ in Eq in Watson v Foxman, courts are acutely conscious that ordinary human experience demonstrates that human memory is fallible for a variety of reasons and ordinarily the degree of fallibility increases with the passage of time. It is equally well understood that judges, like other people, are not nearly as good at judging the truthfulness of oral testimony as they think they are.
Longman itself, as is well-known, introduced into the criminal law what was known as the “Longman warning." In general terms, a case concerning events many years after the alleged offence required that the jury be warned that, because of the passage of a number of years, it would be “dangerous to convict" on the complainant's evidence alone, unless the jury is satisfied of its truth and accuracy having scrutinise the complainant's evidence with great care. The rationale for the warning was said to be that “a significant delay puts the accused at a forensic disadvantage because he or she has lost the ‘means of testing the complainant’s allegations which would have been open to him [or her] had there been no delay”: Longman at [91].
The effect and appropriateness of the Longman warning attracted a great deal of comment and criticism, including that the effect of the Longman direction and some subsequent High Court cases created what was said to be an irrebuttable presumption that delay has prevented the accused adequately testing the complainant's evidence, that it amounted to a not too subtle encouragement by the trial judge to acquit, the length of the delay which necessitates the giving of the warning was unclear, and the warning came to be given in circumstances where there was corroboration of the complainant's evidence.
It was also said that the Longman warning, and presumably the reasoning of the High Court in that case, perpetuated myths and misconceptions about sexual assault and discriminatory attitudes towards women and children. Ultimately, by statutory amendments – in New South Wales s 165B of the Evidence Act 1995 (NSW) – such a warning can be given but only if the court is positively satisfied that a party has suffered significant forensic disadvantage as a result of delay and that the mere passage of time, of itself, does not necessarily establish forensic disadvantage.
Those amendments were introduced into the law long before the High Court's decision in Willmot, yet at paragraph [29] the High Court emphasises the use of Longman-type reasoning. It is unclear whether it, as amended by the legislation or not, is one of the safeguards being referred to. Whatever the answer to that question, it reinforces that care must be shown before accepting uncorroborated evidence and demonstrates that the courts have developed principles and techniques for dealing with cases of this kind. Albeit the Longman direction was being explained by the High Court as a technique to ensure the ultimate fairness of the trial.
For reasons I have already explained in the portion of this judgment dealing with the stay application, I do not need to be concerned with whether, from the mere passage of time, it can still be presumed in civil cases to have caused forensic prejudice to the Defendant. I am comfortably satisfied that the death of many potential witnesses and the fading and perhaps changing of memories of important witnesses, including, critically, the Plaintiff’s, the Defendant's, and Pamela Skinner’s memory as to events more than 50 years ago, have caused significant forensic disadvantage to the Defendant. I concluded that disadvantage was not such as to justify a permanent stay of the proceedings. However, that does not mean that I should not keep firmly in mind that prejudice when weighing all the evidence by reference to the ability of the Defendant to deploy perhaps better evidence if not for the delay.
The only people capable of giving direct evidence as to the two alleged events are the Plaintiff and the Defendant.
I have determined, based on my own fallible ability to judge truthfulness, that I consider both witnesses are giving honest evidence. What that means is that, as of now, the Plaintiff honestly believes the Defendant sexually assaulted her in 1971 or 1972 and the Defendant honestly believes that he did not.
At that level, the evidence is a word-on-word contest between two witnesses who I consider both presented as honest as to the critical facts. Moreover, both versions of events are plausible to about the same extent.
My consideration, therefore, needs to move to the next important step, which is, do I consider the evidence of one or both of the parties to be more reliable than the other?
Reliability or accuracy of memory-based evidence can be judged in two ways. Firstly, it can be judged just by an assessment of its plausibility. Second and most importantly, by reference to some of the cases I have already noted, it can be assessed by comparing it to facts which are otherwise accepted or are proved to be objectively reliable.
As to plausibility, I do not think that either the Plaintiff or the Defendant's version of events is inherently implausible. One says the events happened, the other says they did not. I consider both versions plausible.
There is a real question here as to whether there is any evidence that falls within the description of surrounding facts and circumstances, about which I can be confident, which might point one way or the other as to the reliability of the evidence given by the parties.
The reason there was so much evidence in the case about matters which seem trivial is because, forensically, both counsel were seeking forensic toeholds by obtaining findings of fact which they consider supports their respective client’s memory or is destructive of the other side’s memory.
That is why there was considerable evidence going to topics like the length of the Defendant’s hair in 1971 and 1972, whether the Defendant liked spending time with people older than him rather than children his own age or younger, whether there were ever family gatherings at Auntie Sadie’s and Uncle Will’s property, whether the Defendant's father Cecil was so safety conscious that he would not allow the Defendant to take young children on tractors for some sort of joyride, whether Grandma Sarah used a walking stick in 1971 and 1972, whether Grandma Sarah had suffered a fall in 1971 and 1972 that led to a family gathering to discuss whether it was appropriate that Auntie Mary continue to look after her or whether she be placed in care, whether the Defendant and his cousin Billy liked each other and if an altercation had occurred between them involving an axe, what, if anything, the Plaintiff said to Pamela Skinner when they were both primary school girls in the 1970s, and whether the Defendant had been, in an unusual way, asking after the Plaintiff’s well-being.
I will do my best to resolve some, if not all, of these sub-questions of fact. However, I should immediately say that the resolution of each and every one of them is fraught because of the very effluxion of time that casts doubt on the reliability of any memory of any witnesses as to what might or might not have occurred more than half a century ago.
It is the Plaintiff's memory that, at the time, the Defendant had short dark hair. Every other witness in the case gave evidence that he had shoulder-length, scruffy hair, which he was fond of and that he did not like getting it cut. I have no confidence in anyone's memory as to how long someone’s hair was at a particular point in time in the 1970s. Such a memory will inevitably be overlaid by memories of the same person with different lengths of hair at different points of time. I put this matter to one side. It is most certainly not a basis to make a finding as to an incontrovertible fact.
As to whether the Defendant's Father Cecil was safety conscious. The only evidence is that he was. However, whether that means he would or would not have let his son, as a 17 or 18-year-old, take a six- or seven-year-old child for a ride on a tractor whilst Cecil was watching is a different thing. Standards of what is considered safe conduct change remarkably over time. The preponderance of evidence would suggest that he would not, and I conclude that he probably would have not done so, but again, this is not a finding of an incontrovertible, objective fact inconsistent with oral testimony.
As to whether there were family gatherings at Auntie Sadie’s and Uncle Will’s house at any point in time, let alone the family gathering, the subject of these proceedings, again, the preponderance of evidence is that there were not such gatherings and no other witness other than the Plaintiff remembers any such gathering. However, again, even if I was to make a finding that it is more likely than not that there was no such family gathering, which I do, that is not a finding of an incontrovertible fact for the purpose of the exercise I am undertaking.
As to Grandma Sarah's health in 1971 and 1972 and whether she was steady on her feet and whether she could or could not be properly looked after by her daughter Auntie Mary, apart from the Plaintiff's evidence, all the evidence is that she was in very good health and, if not sprightly, was certainly steady on her feet. I find that to be the case. Whilst that finding does not amount to incontrovertible evidence, I do take it into account when assessing the accuracy of that aspect of the Plaintiff's evidence as I think it more likely than not that, if something happened, it happened somewhere other than Auntie Sadie’s and Uncle Will’s house and had nothing to do with Grandma Sarah’s health.
Ultimately, Mr Dooley conceded that Grandma Sarah's health in 1971 and 1972 was not as described by the Plaintiff. He submitted that this was explicable because the Plaintiff does not suggest that was something that she knew at the time of the family event, but was something her mother told her some short time after the event. I do not think that explanation really takes the matter very far. I think, on the balance of probabilities, that concession having been properly made, not only was there no family gathering to discuss the care needs of Grandma Sarah, but that it is unlikely that there was any family gathering for any purpose at Auntie Sadie and Uncle Will’s property.
Whilst these might seem to be peripheral matters, the fact is that the family gathering, a precise description of where it happened and why it happened, and what room the television was being watched in, are all part of the vivid memory which the Plaintiff has. I am satisfied that those parts of that memory are not accurate, which casts doubt upon the accuracy or reliability of the whole of that memory.
As to whether the Defendant and his cousin Billy liked each other and/or whether there were physical altercations between them, it is common ground that, at the time, they did not like each other, and it is common ground that they had some sort of fistfight. There is a dispute as to whether there was an incident with an axe. There is no direct evidence at all as to the incident with the axe and most of the witnesses had never even heard of such a suggestion. Again, the fact that two teenage boys do not get on and perhaps, at some stage, had some sort of fistfight is not unusual and I do not think it is a factor that has any consequence for the task of assessing the likelihood of the Plaintiff's or the Defendant's version of events being reliable.
As to whether the Defendant inappropriately enquired after the Plaintiff’s well-being over the years or watched her in a suspicious way, I am not satisfied he did so, at least in any way that has any relevance to the matter before me.
The evidence of Pamela Skinner falls into a different category. If I was to be comfortably satisfied as an incontrovertible fact that the actual words she recalls were said to her by the Plaintiff when they were at primary school, then that evidence would be some evidence much closer in time to the events, which might well support a finding of reliability of the Plaintiff's memory. It, of course, cannot be said to corroborate her evidence because it comes out of her own mouth, but nonetheless, it would demonstrate her memory is not recent.
There are the discrepancies I have identified between the Plaintiff's recollection of the conversation she had with Pamela and Pamela's own recollection, which I think are only to be expected when people are trying to remember a conversation they had whilst at primary school half a century later. There is also, if the precise words are to be accepted, a disparity between what the Plaintiff said to Pamela Skinner and her evidence as to the conduct of the Defendant. Pamela's recollection is that part of what she was told was that “George follows me." On no view of the Plaintiff's evidence is there any suggestion that George ever followed her. Again, I think these discrepancies are to be expected, but they do demonstrate the unlikelihood of anyone remembering the precise words used so long ago. There are also discrepancies as to whether any conduct of her uncles was also discussed.
As I have already explained, whilst I do accept that at some vague level the Plaintiff was upset at primary school and that she said something which made Pamela think that the Defendant had done something untoward, because of the passage of time and fallibility of human memory discussed at length in this judgment, and in particular the observations made by McLelland CJ in Eq in Watson v Foxman, I am not able to find that the actual words Pamela ascribes to the Plaintiff were said. In those circumstances, whilst the fact that the Plaintiff said something that reflected badly on the Defendant at the time is relevant to the question of whether he did what is alleged, it is most certainly not incontrovertible, contemporaneous evidence.
I have concluded that there is no evidence of the type described in Fox v Percy against which I am able to judge the reliability of the Plaintiff's memory, other than the state of Grandma Sarah’s health and the venue of family events, (although even they are findings only, they are not incontrovertible facts) which are inconsistent with the Plaintiff’s vivid memory.
I have no doubt that medical professionals, like lawyers, when taking contemporaneous or close to contemporaneous notes of meetings, often make mistakes in those notes. Inevitably, the notes are made quickly whilst the person is either concentrating on something that is said subsequently or, if the notes are made shortly after the relevant meeting, are often no more than a summary, often done in a hurry.
However, there are three entries in Ms Bray's notes which give me pause to consider that, from time to time when the Plaintiff is recalling the events of the subject of this case, she may well attribute the conduct, not to the Defendant, but to her uncle. I am not in the position to make a finding as to whether the Plaintiff did or did not do this, but the notes do give me pause to think that perhaps her memory, as one might expect, is a little more jumbled and confused than she suggests.
The Defendant is of good character. I would not put much weight, if any, on this ordinarily, but I do think it is relevant that there was never any rumours within the family that he has ever done anything like what is alleged.
The ultimate question for me is not the subheading that I have used in this judgment. It is not my task to find, as a matter of fact, what happened. It is my task to determine whether I consider the Plaintiff has discharged her onus of proof in the way explained by Dixon J in Briginshaw*,* in that I feel the requisite level of satisfaction, a definite affirmative conclusion on the balance of probabilities, to enable me to make those findings of fact.
In so doing, I must take into account the principles set out in Briginshaw itself, but also in cases like Longman, Fox v Percy and the other techniques mentioned by the High Court in Willmot.
Having reflected on the matter deeply, I am not so satisfied and therefore, the Plaintiff's case must be dismissed. Fundamentally, this is because I must determine this case based on a word-on-word contest between the Plaintiff and the Defendant, both of whom I consider honest in their competing versions of events that may or may not have occurred more than 50 years’ ago.
Both versions are as plausible as the other in the sense that it is plausible that the events occurred, but it is equally plausible that they did not. When I look for objective and incontrovertible evidence that may corroborate one version or the other, there really is not any evidence or finding I can make that falls into that category. I am satisfied on balance that the Plaintiff's memory in relation to the family gathering event is not accurate in significant ways, being the location and the reason for the gathering. That does give me cause to doubt the accuracy of the whole of the Plaintiff's memory in relation to both events. The evidence of Pamela Skinner is not incontrovertible, objective evidence, but does demonstrate that, shortly after the events, the Plaintiff did think that the Defendant did something inappropriate, but it really goes no further than that. The notes of Ms Bray are suggestive of some confusion in the Plaintiff’s memory. The passage of time is significant and the allegations serious. The Defendant has suffered forensic disadvantage in answering the Claim as a result of that passage of time. When I take all those matters and the other matters I have mentioned into account and weigh them in the balance, I do not feel the requisite level of satisfaction so as to find that the two events occurred.
Before leaving the question of liability, I wish to make the following matters clear so that both parties and anyone else reading this judgment understand. Those matters are:
I accept that the Plaintiff honestly believes that she was sexually assaulted by the Defendant in 1971 and 1972 on two separate occasions.
That belief is based on memories which she does have.
My finding does not mean that I have decided the two events did not occur. It simply means that I am not satisfied if they probably occurred. They may have occurred. This decision is not a finding that they did not. The Plaintiff's case fails because it is her that has the legal onus of proof.
If the law was that the Defendant had the onus of satisfying me that the events did not occur, he would have likewise failed to discharge that onus.
Finally, the Plaintiff has suffered over the years from being sexually assaulted by two people before she was aged five or six. Those assaults have significantly affected the quality of her life since. She only obtained treatment in recent years, which is unfortunate because that treatment seems to have been significantly successful.
As is recorded in Ms Bray's notes, the Plaintiff feels it very important and empowering for her to “tell her story" not just to medical professionals, but in a forum such as this court case. I hope, notwithstanding the outcome, that she has found some comfort in the process.
Lest I be wrong on the question of liability, I will shortly deal with damages.
As to damages, Mr Dooley prepared and handed up, and I marked as MFI-5, a detailed notional calculation for hypothetical past earnings and actual earnings on various assumptions.
However, he put his submissions at a much higher level.
As to general damages, the claim is for $300,000, together with interest on 75% of the Plaintiff's past general damages at 2%. Aggravated damages are claimed at $50,000, as are exemplary damages.
A total of approximately $5,000 is claimed for past and future out-of-pocket treatment expenses.
Finally, as far as past-economic loss, interest on past-economic loss, and loss of past-superannuation entitlements, the following claims are made:
“7.3.7 Past economic loss
[109] Notwithstanding this is included in the buffer, the form is to calculate to take the buffer, which is applicable from age 17, in 2011, being a period of 37 years. She had 3 children during this period, so it would be appropriate to reduce that period by 5 years. Accordingly, a loss is claimed at $80 per week over a 32-year period, including a buffer for career progression and consequential increased earnings that the plaintiff would have achieved if the abuse never occurred, totals $150,000.00.
7.3.8 Interest on past economic loss (included in the buffer)
[110] It would be appropriate to allow at 2% for a period of 6 years and then from 2011 to 2024, 14 years at 4% equals $102,000.
[111] This claim is not made but highlights what we believe a realistic approach to the buffer.
7.3.9 Loss of past superannuation entitlements
[112] The plaintiff claims loss of past superannuation entitlements in the amount of $17,250.00 reflecting the superannuation rate of 11.5% on the claim for past economic loss.”
There is no issue between the parties that, on the hypothesis that the two events occurred, that they caused the Plaintiff considerable distress, anxiety, depression, and materially contributed to her diagnosis of PTSD for many decades. However, I am satisfied that the earlier events involving the uncles would have led to a similar, but slightly less severe, outcome.
I consider an award of $250,000, together with interest for general damages to be appropriate. This has a very substantial discount built into it to take into account the contribution to the psychiatric injury caused by the conduct of the Plaintiff’s uncles. I consider that contribution can be “disentangled.” Indeed, it is the Plaintiff’s case that it can be. That process cannot, however, be done arithmetically by applying a particular percentage discount. I have done the best I can to take it into account and have allowed more than the 54% ultimately propounded by Dr Shelle.
I consider an award of $50,000 for each of aggravated and exemplary damages to be appropriate, if not modest.
I accept the claim for past and future treatment expenses, and as to economic loss, again, I think the claim is appropriate, if not a little modest. Again, it is heavily discounted to take account of the effect of the uncles’ wrongful conduct and the many vicissitudes of life.
Accordingly, if I had found in the Plaintiff's favour, I would have awarded damages as follows:
| Damages | Total | | General Damages | $250,000 | | Interest on general damages (2% of 75%) | $198,750 | | Aggravated damages | $50,000 | | Exemplary damages | $50,000 | | Past and future treatment | $4,720 | | Past economic loss (inclusive of interest) | $150,000 | | Loss of past superannuation entitlements | $17,250 | | Total | $720,720 |
For those reasons, I dismiss the Plaintiff's claim and enter a judgment in favour of the Defendant.
Prima facie, the Defendant is entitled to an order that the Plaintiff pays his costs. I shall make such an order, but against the possibility that there is an application by either party to set aside or vary that costs order, I will grant the parties 14 days’ liberty to apply by sending an email to my associate, whereupon arrangements can be made to deal with such an application.
My orders are:
The Plaintiff’s claim is dismissed.
Verdict for the Defendant.
The Plaintiff is to pay the Defendant’s costs of the proceedings.
Grant liberty to either party to apply on 14 days’ notice by email to my chambers if there is any application to set aside or vary the costs order.
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Davey
Want [2025] NSWDC 205
(1938) 60 CLR 336
(2003) 214 CLR 118
(1989) 168 CLR 79
(1988) 166 CLR 69
(2019) 100 NSWLR 218
(1992) 67 ALJR 170