Leeks v X Y [2008] VSCA 21

Court of Appeal (Vic)|2008-02-20|Before: BUCHANAN, VINCENT and REDLICH JJA

DAMAGES - Assault by psychiatrist on patient - Standard of proof - Whether burden of proof had been discharged - Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 referred to - Whether evidence permitted a state of reasonable satisfaction as to the truth of the allegation.

REVIEW OF EVIDENCE - Whether specific evidentiary issues or the evidence as a whole provided any compelling reason to overturn findings of trial judge as to credibility of parties.

**2 I agree that this appeal should be dismissed for the reasons given by Redlich JA in his judgment.

3 The respondent commenced proceedings in the County Court seeking damages for injury she claimed to have suffered as a result of being sexually assaulted by the appellant during the course of psychiatric consultations she had with the appellant in about 1979-1980. The respondent alleged that over the course of eight consultations the appellant sexually assaulted her by undressing her, touching and licking her breasts, requiring her to touch his penis and digitally penetrating her vagina. Following a four day hearing, a judge of the County Court found that the appellant, for the purposes of sexual gratification, had taken advantage of the vulnerability of the respondent, who was then a disturbed psychiatric patient. His Honour awarded the respondent damages including exemplary damages of $55,000. The appellant now appeals against the finding of liability. The appeal is primarily concerned with whether the trial judge could have been satisfied by the evidence that the appellant had sexually assaulted the respondent.**

Standard of proof and the appellant's credibility

4 It was first submitted that his Honour failed to assess the evidence in accordance with the principle enunciated in Briginshaw v Briginshaw[1] and Neat

Holdings Pty Ltd v Karajan Holdings Pty Ltd.[2] Secondly it was submitted that having regard to his finding as to the appellant's credibility, his Honour 'perversely rejected' the appellant's denials of the allegations against him and failed to give any sufficient reasons for doing so. In substance, it was submitted that it was not open to his Honour to find that the respondent had discharged the applicable burden of proof given his findings as to the credibility of the parties. These contentions are raised under cover of grounds 3 and 4 and it is convenient to deal with them together as counsel did in oral argument.

5 The appellant did not dispute that the respondent may well have consulted him on a number of occasions but he could not recall the respondent and no longer had any record or notes. He denied the allegations of sexually inappropriate behaviour or that he was in any way guilty of misconduct. As the trial judge observed in his reasons, the cross-examination of the appellant was brief. His Honour made the following finding concerning the appellant:

It follows that the defendant, who is now a 77 year old recently retired well-credentialed medical practitioner of many years' standing, emerged as a witness whose credit was not really impugned in any meaningful way. His account was a simple one which was not really undermined by anything that emerged in the case other than the facts which are hotly in issue.

**6 His Honour's finding, as amplified by subsequent reasons, was that the appellant's credit was only undermined by the respondent's evidence of the sexual assaults.

7 The trial judge's findings as to the respondent were in these terms:**

My impression of the plaintiff is that she is an intelligent and quite articulate woman. She is now able to put her background into some sort of perspective and is probably in as good a psychological state as she has ever been. She was subjected to rigorous cross-examination by Mr Gillies in the course of which she was repeatedly accused of inventing serious allegations for financial gain. In my opinion, her denials were credible and convincing.

On occasions she made it clear that she had found the whole experience of making complaints concerning the defendant a thoroughly distasteful experience that she would much rather have avoided. There is no doubt that her financial position is precarious, but there was absolutely nothing in the material or in her history to suggest that she would be capable of the extreme step of inventing these allegations for the purpose of financial gain or for any other purpose for that matter. I must say, I found the plaintiff's denials convincing. The more she was cross-examined, the more she seemed to me to be a very genuine person who was giving as truthful an account of her experience as she was able to do.

The defendant's case is that these allegations are pure fiction and have been invented by the plaintiff, presumably for the purpose of financial gain. I do not doubt that such inventions can be made. However, to do so, any person would have to be calculating and completely unscrupulous. It is difficult to overstate the extent to which that would be a nefarious act. It would require a particularly callous and unscrupulous person to invent such claims and to carry them through in the way in which the plaintiff has done here. The position is never certain but, so far as I could tell, the plaintiff was far removed from such a person. It is only one factor that has to be taken into account with all others, but I find it difficult to accept the possibility that the plaintiff is the sort of person who could callously invent the account that she has given and then carry it through to the stage which she has. It is relevant to note that, despite the plaintiff's extensive psychiatric history, there is nothing to suggest that she is, or has ever been, delusional.

8 After expressing the conclusion that he accepted the respondent's allegations as correct, his Honour further observed:

I do not lightly dismiss the evidence of the defendant. As I have already said, he emerged as a respectable senior medical practitioner who gave plausible evidence and whose credit was not in any material way impugned. It is improbable that a medical practitioner in his position would behave in the way suggested but, on balance, my conclusions are as I have expressed them.

9 In civil litigation the standard of proof is proof on the balance of probabilities.[3] The balance of probabilities remains the standard of proof even where serious or criminal allegations are made. The learned trial judge quoted the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:[4]

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. The strength of evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved. Thus authoritative statements have often been made to the effect that clear[5] or cogent[6] or strict[7] proof is necessary "where so serious a matter as fraud is to be found".[8] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct[9] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[10]

10 The underlined portion of this quote was underlined in his Honours reasons. Generalisations about the need for 'clear and cogent proof' in cases involving competing and mutually inconsistent evidence should not be understood as affecting the civil standard of proof required.[11] Referring again to the joint judgment in Neat:

The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion.[12]

**11 The requirement of 'clear or cogent proof' described where criminal conduct or fraud is alleged relates to the strength of the evidence that is necessary to establish such a fact on the balance of probabilities.[13] That is to say the nature of the issue affects the process by which reasonable satisfaction is attained.[14] So where allegations of a serious sexual nature are made in civil proceedings, due regard must be given to the considerations mentioned in Briginshaw requiring the exercise of caution and careful scrutiny of the evidence proffered in proof of the allegation.[15]

12 It is evident from his reasons that His Honour applied the civil standard while recognising that he was obliged to take into account, as an important factor, the improbability of a grossly improper sexual advance towards a vulnerable psychiatric patient by a well credentialed and experienced psychiatrist. His Honour was to repeat in his reasons that he must 'bear in mind' the 'improbability of a person in the defendant's position behaving in the way alleged'. I reject the contention that his Honour failed to assess the cogency of the evidence with sufficient regard to the serious nature of the allegations.

13 It was submitted on the appellant's behalf that it was not open to his Honour to find that the respondent had discharged the applicable burden of proof as his Honour had found that the appellant was a credible person. It was argued that this finding in conjunction with the nature of the issue to be resolved, made proof of the serious allegation impossible. In addition, it was submitted that his Honour had placed undue emphasis upon the finding that the respondent was not the sort of person who could callously invent such allegations and had thereby diminished the importance of the countervailing factor that the appellant, whose credit had not been impugned, was not the sort of person who could have committed such heinous conduct.

14 These submissions cannot be sustained. They rest upon a misconception as to how his Honour resolved the conflict in accounts between the appellant and respondent and his Honour's remarks concerning the appellant's credibility. As the learned trial judge explained, the probing and very lengthy cross-examination of the respondent had led his Honour to a state of conviction as to the truthfulness of her allegations which in turn had undermined the credibility of the appellant in relation to the facts which were in issue. Such an approach discloses no perversity of reasoning as the ground alleges. It was not necessary that the trial judge find the appellant to have been discredited on some other basis before he could be satisfied by the respondent's account. Grounds 3 and 4 must be rejected.**

**15 Grounds 4A and 5 are concerned with the admission into evidence and use which the trial judge made of a statement made by the respondent to her sister- in- law in 1982 which was said to be consistent with the allegations made by the respondent concerning the appellant. In substance it was contended that no occasion for the admission of a prior consistent statement had arisen as no suggestion of recent invention had been made and that in any event the trial judge misused the content of the statement as evidence of the truth. It was submitted that there had been no suggestion of recent invention but only a denial of the allegations of sexually inappropriate behaviour.

16 Counsel for the appellant acknowledged, both before the trial judge, and before this court, that it was difficult to maintain that no such attack had been made. During the lengthy cross examination of the respondent it was put to her that no episode of a sexual nature had ever occurred between her and the appellant and that she had made the whole thing up. She was extensively cross examined about her medical history in the period after she had been treated by the appellant. The respondent was pressed as to why she had not told her doctors of the allegations concerning the appellant. She gave a number of reasons; amongst them that she had been warned by several people that it would not help her to make accusations to her treating doctors about what her former doctor had done. Counsel for the appellant put to her that she had 'completely invented that' to justify her silence for twenty years about the incident.

17 The respondent was then extensively cross-examined as to her gambling habits. It was put to her that when she had read an article in the The Age newspaper in 2002 about the appellant, she was in a state of impoverishment because of her firmly entrenched gambling habit. She was then cross-examined about why she had told Dr Hogan, her treating Doctor, of her allegations, before she told the police. She denied the suggestion that she was setting up the appellant for a damages claim by telling Dr Hogan some months before she went to the police. She also denied that her solicitor had advised her to tell her doctor to support a damages claim.

18 The respondent was then questioned at length about the incidents involving the appellant and the suggestion was repeated that the respondent had told no-one at all about the allegations until she saw her solicitor. The respondent repeated her earlier testimony that she had told her sister-in-law, Mrs Brennan, when she was hospitalised because she had never recovered from the attack. She also said she told Terry Birch, a speech pathologist who was treating her son and she also told her children. She denied the suggestion that she had just made up her account that she had told her children.

19 Counsel for the respondent had opened the case for the respondent, stating that she intended to call Ms Brennan to give evidence of her conversation with the respondent many years before the respondent had raised these allegations with her treating doctor. Presumably because the matter had been opened, the respondent was cross-examined about the evidence her sister in law would give as to what the respondent had told her. She testified that her sister-in-law came to visit her whilst she was an inpatient at Pine Lodge in late 1982 and that she had told her that she had been seeing a doctor who made her sit on his knee and that he touched her. It was again suggested that she had told no-one about the allegations until she chose to tell Dr Hogan and her solicitor in 2002. The respondent was then cross-examined about her dealings with the solicitor. Counsel for the appellant then returned to the suggestion he had made the previous day.**

I suggest to you that you yesterday deliberately downplayed any suggestion of solicitors to meet the attack that I was making that you simply made up this whole affair to restore your tattered financial situation by suing him.

**20 Counsel returned to the issue of why the respondent had not told her treating doctor any earlier of her allegations concerning the appellant. It was suggested to the respondent that she was inspired by her lawyers to raise the allegations concerning the appellant with Dr Hogan in May 2003.[16]

21 Following the completion of the respondent's cross examination, counsel for the respondent called Ms Brennan to give evidence of her conversation with the respondent. Counsel for the appellant submitted that Ms Brennan's evidence was inadmissible. He submitted that it had been suggested that the respondent had fabricated her allegation but disputed that it had been suggested that it had been a recent invention. In addition he submitted that as the conversation between the respondent and her sister-in-law post dated the alleged conduct of the appellant by many years it would be unsafe to admit the evidence and that as a matter of fairness the self serving account to her sister in law should not be admitted.

22 The trial judge ruled that the evidence was admissible. His Honour was satisfied there had been a clear suggestion that the respondent had invented her allegations following the appearance in The Age newspaper of the article concerning the appellant. His Honour was satisfied that the prior consistent statement preceded the date on which it had been alleged that the invention took place and in his Honours view, that was sufficient to make the evidence admissible. His Honour held that it was immaterial whether the consistent account was given at a time contemporaneous with the events, the subject of the allegations or was made at a much later time. His Honour did not consider that he had any discretion to exclude the evidence on the basis that it was unsafe or unfair. The trial judge further stated that if he did have a discretion he would have exercised it in favour of the admission of the evidence in the light of the specific nature of the suggestion that had been made.

23 It is settled law that a witness, whether a party or not, may not support their testimony by proof that on some prior occasion they made a statement to the same effect. There are two well recognised exceptions. The first, with which we are not presently concerned, is in the case of sexual offences where evidence of timely complaint is admissible, not as evidence of proof of the commission of the offence, but to rebut consent and negative the possibility that the charge is an afterthought. The second arises in any civil or criminal trial in which a suggestion of recent invention is made so that evidence of a prior consistent statement may be admitted to rebut the suggestion that the witnesses testimony is a recently fabricated story.[17]

24 The repeated suggestions to the respondent in emphatic terms that her testimony was a concoction did not constitute an allegation of recent invention.[18] To make it so, required a suggestion or the laying of a basis for the suggestion that the testimony was a product of afterthought or a recent invention.[19] There must be an imputation that the witness is not speaking from recollection but is recounting an account invented subsequent to the event in dispute.[20] Only a suggestion that the fabrication or invention occurred at or after a designated time would permit proof of a consistent statement made prior to that time. It is the suggestion that a witness has fabricated his or her story after a certain event that gives the statement made prior to that time some probative effect.[21]

25 Whether the cross examination of a witness enlivened the application of the rule as to recent invention' was a matter for the trial judge.[22] The trial judge made no error in ruling that such a suggestion had been made with the consequence that the prior consistent statement was admissible. The cross-examination which I have summarised contained numerous emphatic suggestions that the respondent had invented her allegations in 2002 following The Age publication and that the respondent had a specific motive for the 'invention' which had arisen at about that time.

26 His Honour thought it was unnecessary that the statement be made at a time contemporaneous with or shortly after the events in dispute. It has sometimes been said that for a statement to rebut a suggestion of recent invention, it must have been made 'shortly after the event in question' so as to rebut the suggestion that the witness testimony was a 'belated concoction'.[23] Dixon CJ said in The Nominal Defendant v Clements[24] that the statement was admissible if it was made by the witness 'contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that the account is a late invention or reconstruction. But contemporaneity of the statement with the event in dispute is not essential. Expressions such as 'recent invention' 'belated concoction' 'afterthought' or 'recent fabrication' all presuppose some point of time after which it is suggested the statement was made so that a statement made at an earlier date consistent with the evidence alleged to be concocted will rebut such an allegation. The adjective 'recent' has been viewed a misnomer as the doctrine applies to any fabrication alleged to have occurred subject to the events in question but anterior to the trial.[25] In my view a statement will be admissible whenever made so long as it pre-dates the event said to provide the motive for the recent invention or the time when the recent fabrication is alleged to have occurred - so that it logically rebuts that suggestion.[26]

27 Once the trial judge was satisfied that the evidence of the respondent had been impeached as a fabrication or invention made at or after a designated time and that the respondent had made a statement prior to that time which was consistent with her testimony, the trial Judge correctly concluded that the prior consistent statement became admissible. On appeal it was not suggested that in a civil case, any discretion resided in the trial judge to refuse to admit the evidence. In any event, no error has been shown in the conclusion that the statement should have been admitted into evidence.

28 Following the ruling, counsel for the respondent called Ms Brennan. She gave evidence that whilst the respondent was an inpatient in Dandenong Hospital she had a telephone conversation with her in which the respondent stated 'that the psychiatrist that was treating her had asked her to sit on her (sic) lap'. To this Mrs Brennan replied 'that is not okay'. The conversation was cut short because a nurse walked in. Mrs Brennan recalled a conversation just after her daughter's birth in 1990 or 1991. Mrs Brennan gave evidence that she had a second conversation with the respondent in relation to the appellant a couple of years after their first. During the second conversation the respondent told her something of the appellant's '...history of his offending'.**

29 Under ground 5 the appellant contends that the evidence of the respondent's sister-in-law was admissible only to rebut the suggestion of recent invention but the trial judge failed to confine the evidence to that issue and wrongly used the evidence to determine whether the respondents allegations were truthful. To make out this ground the appellant relies upon the following passage from his Honours reasons:

The evidence of Mrs Brennan was whether it be in be in 1983 or 1990 or even later, it is highly significant that the plaintiff complained to her of the defendants impropriety. Clearly the allegations of the plaintiff were not made in 2002 but preceded that year by quite some time... My view is that when I combine these two factors, namely my impressions of the plaintiff and this highly significant prior consistent evidence given by Mrs Brennan, I reach the conclusion that on the balance of probabilities, the allegations are correct.

**30 The issue raised by this ground of appeal is whether his Honour treated the content of the prior consistent statement as evidence of its truth. Such evidence is admitted to restore the witnesses credibility.[27] Its effect is to rebut the claim that the witness belatedly fabricated their account of events. As with evidence of 'recent complaint' the evidence is admitted as evidence of consistency of account which re-establishes or bolster the credibility of the witness. Such a previous consistent statement, once admitted, reinforces the witnesses credit and may be used in that way in considering the weight to be attached to the witnesses sworn evidence.[28]

31 A hearsay statement admitted to prove a fact other than the truth of its contents, does not upon its admission become evidence in the case.[29] Thus in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd[30] the High Court whilst upholding the admissibility of statements by a testatrix about her son's misconduct which were tendered to prove her reason for excluding him from her will, held that the statements were not evidence of the alleged misconduct. Similarly, evidence of recent complaint made out of court, is admissible as an exception to the hearsay rule because of its consistency with the witnesses testimony or conduct, the evidence having itself no probative value as to any fact in contest.[31]

32 Counsel for the respondent correctly submitted that, if the impugned passage from his Honour's reasons was equivocal, the appellant must fail unless it could be shown that the trial judge had employed the content of the statement in an impermissible way. The impugned passage is consistent with the prior statement being used only to re-establish the respondent's credit. There are other passages of his Honour's reasons, and the remarks made by his Honour prior to ruling on the admissibility of the evidence, which support the conclusion that his Honour understood the limited purpose for which the prior consistent statement was admitted. It is convenient to set out the other relevant parts of his Honour's reasons:**

Mr Gillies puts squarely to the plaintiff in cross examination that her account of sexual misconduct on the part of the defendant was an opportunistic invention with a view to financial gain. He said the invention was a product of her earlier contact with the defendant and becoming aware of the adverse publicity he received in 2002. Thus, it was clearly suggested to the plaintiff that her account was invented and that it was invented at a particular time, namely after seeing the adverse publicity concerning the (sic) plaintiff in 2002. Accordingly the plaintiff became entitled to put before me prior consistent evidence rebutting the suggestion of recent invention... Given the specific nature of the allegation made about the plaintiff, the calling of prior consistent evidence was of great importance. The plaintiff had given an account of circumstances in which he had told Mrs Brennan of the defendants conduct. She said that she had been visited by Mrs Brennan whilst she had been in hospital, when advised to go there by Dr Hogan; thus, this disclosure would have been in 1982 or thereabouts.

In her evidence Mrs Brennan said that, whilst the plaintiff was in hospital, they had a telephone conversation. She recalled the plaintiff had said to her that the psychiatrist that was treating her had asked her to sit on his lap. She said the conversation was cut short because a nurse had come in and terminated it. When asked to recall when this was, Mrs Brennan said that she thought it was about the time of her daughters birth, thus fixing it at about 1990 or 1991. Mr Gillies suggested to me that there was a great significance in the plaintiff and Mrs Brennan as to when this conversation occurred. The plaintiffs version is that it occurred in person during a period of treatment as an in patient in the early 1980's whereas Mrs Brennan put it somewhat later in 1990 or 1991, and then over the telephone.

I do not regard the difference as being significant at all. I thought Mrs Brennan was clearly an honest witness I'm quite satisfied that the conversation which the recalled the plaintiff was making a complaint concerning the defendant at a time well before he received adverse publicity in 2002. Thus, Mr Gillies suggestion of an invention in that year cannot be correct. It does not follow, that the complaint is accurate, only that it was not invented in 2002.[32]

33 His Honour then went on to consider an argument that the respondent had failed to call other persons including her children to whom she said she had made complaints about the appellant. His Honour in dealing with this argument said that counsel who had appeared for the respondent at the trial had not understood the concept of a prior consistent evidence for the purpose of rebutting a suggestion of recent invention. His Honour then considered the motive that had been attributed to the respondent for making her allegations.

Mr Gillies emphasised the magnitude of the plaintiffs gambling habit. It is apparent that at one stage the plaintiff developed a gambling addiction that was very damaging to her financial position. In particular she was in a very difficult stage at the time of the adverse publicity concerning the defendant. There is no doubt that the plaintiff has had a serious gambling addiction and that it has been very damaging to her. She was in a pretty desperate financial position in 2002. Mr Gillis referred to other matters which he said reflected adversely on the plaintiff. In particular, he claimed the sequence of complaints demonstrated that the plaintiff was pursuing the matter for the purpose of compensation rather than some other motive.

**34 The two factors to which his Honour referred in the impugned section of his reasons are both matters concerned with the respondent's credibility. The first is his Honour's impression of the respondent as a witness. I have already set out His Honour's description of the nature of the attack made on the respondent and his findings on the respondent's credibility. The second was the prior consistent statement of the respondent which bore upon her credibility. His Honour plainly regarded that evidence as highly significant. Those factors in combination led his Honour to conclude that the respondent was a credible witness whose evidence he was prepared to act upon.

35 When one has regard to the sustained and very specific attack made upon the respondent's credit, it is understandable that his Honour treated the prior consistent evidence as of such significance. Evidence which rebuts a suggestion of recent invention is often regarded as having profound implications for the resolution of a witness's credibility.[33] A finding of recent invention has been described as 'one which is generally devastating to the credibility of the witness against whom it is made.' It is for this very reason that the ordinary rule which precludes the admission of prior consistent statements is modified to permit such an exception.[34]

36 The impugned passage of his Honour's reasons shows that the prior consistent statement was utilized by his Honour to reject the strenuous attack on the respondent's testimony that it was a late fabrication motivated by her parlous circumstances and a desire to obtain compensation. I do not agree that its contents were misused. The argument that his Honour employed the content of that statement as evidence of its truth cannot be sustained.**

Other grounds in support of the proposition that the trial judge should not have reached a state of reasonable satisfaction as to the respondent's allegations

**37 The remaining grounds call for consideration of a number of evidentiary issues which it was contended should have led the trial judge to conclude that the respondent had not discharged her onus of proof. The issue raised by these other grounds is not whether the appellant was proved to have been untruthful or unreliable but whether the respondent's credibility was so undermined that it was not open to his Honour to reach a state of reasonable satisfaction as to the truthfulness of her allegations.

38 The nature of this appeal requires the court to review the trial[35] and weigh up the conflicting evidence. Within the constraints of the appellate process, there are circumstances in which the trial judge's conclusions as to credit may be overturned,

38 despite the respect and weight to be given to the trial judge's view.[36] We should do so if it could be demonstrated that there is some incontrovertible or uncontested facts[37] showing error in that regard or that the evidence at the trial was such as to render such conclusions `glaringly improbable' or `contrary to compelling inferences' or that there had been some misuse of the advantage in seeing the witness possessed by his Honour[38] or if for some other compelling reason this court were to conclude that the finding that the respondent was a reliable witness was unsound or that in the light of all of the evidence it reached a different conclusion to the trial judge as to the judgment that ought to have been given. [39]

39 Under ground 7 the appellant complains that the trial judge failed to apply the rule in Jones v Dunkel[40] in relation to the failure of the respondent to call her children as witnesses to rebut the allegation that she had recently invented the allegations concerning the appellant. Counsel for the appellant had submitted in closing address that as the respondent had not called her children as part of her case, the trial judge should infer that they would not have assisted her case.

40 During cross-examination the respondent gave evidence that she had told her children about it when they were old enough to understand - when her daughter was about 15 and her son was 18 - they being 28 and 31 respectively at the time of the trial. The respondent agreed that she had never said to anyone, prior to her cross-examination, that she had told her children.

41 In his reasons the trial judge referred to the fact that the respondent had not called her children as witnesses. His Honour concluded:**

I must say that I am wary of placing too much weight on this feature of the evidence in this case because it was apparent to me that the plaintiff's counsel did not understand the concept of prior consistent evidence for the purpose of rebutting a suggestion of recent invention and, in particular, the importance that such evidence might have in a case like this. Accordingly, I have little confidence that the unexplained failure to call the plaintiff's children has as much significance in this case as it might in some others.

**42 As I have mentioned, the respondent's counsel at trial had opened the case for the respondent on the basis that she intended to call evidence from Mrs Brennan, although no basis then existed for its admissibility. In Mrs Brennan's evidence-in-chief counsel unsuccessfully attempted to lead evidence which went beyond the evidence of the statement which the respondent had made to Mrs Brennan and which the trial judge had ruled was admissible. The view expressed by the trial judge in his reasons was one that was open to him particularly as the evidence that she had told her children received no attention until well into her cross-examination. Moreover, Ms Brennan had not been challenged as to her evidence that the respondent had made a consistent statement to her. The issue pursued in her cross examination was how long before 2002 those conversations took place.

43 Ground 11 is to the effect that that the learned trial judge was wrong in not finding that the behaviour attributed to Terri Birch was inherently improbable. Terry Birch was Head of the Speech Pathology Department at the Dandenong Hospital. From time to time she would ask the appellant's opinion about a child she was looking after. The appellant had the practice of actually sitting in on sessions conducted by Ms Birch so as to observe the child.

44 Ms Birch was treating the respondent's child. The appellant had sat in on a session conducted by Ms Birch with the respondent's child. The respondent was also present. At the conclusion of the session, the respondent said that she was very anxious and quite depressed and the appellant said that he would be happy to see her to discuss her problem. She took up his suggestion. The respondent testified that following the second last of her consultations with the appellant, she learned from Terry Birch that the appellant's wife had just given birth to a baby. According to the respondent the appellant had previously told her he had left his wife in New Zealand. The respondent became upset by the information Ms Birch gave her. She told Ms Birch what the appellant had done to her and, according to the respondent, Ms Birch was horrified and told the respondent she should not return for any further consultation and should try and put what had occurred out of her mind. The respondent gave evidence that she had one further consultation with the appellant and questioned him about his behaviour. He said 'this has nothing to do with you and me.' The respondent replied '[t]here is no you and me...[t]here's just been abuse, you haven't helped me at all.' The respondent gave evidence that as she left the appellant grabbed her arm and said that she couldn't tell anyone, that she was a long term psychiatric patient and that no one would believe her.

45 In his reasons, the learned trial judge dealt with the submission that if Terry Birch had become aware of the claim of impropriety by the respondent, she would have done much more than simply advise the respondent not to have any further contact with the appellant; hence his Honour should doubt that the respondent had made any such claim to Ms Birch. His Honour found that it was not inherently improbable that Ms Birch would take the course claimed by the respondent as she had an insight into the level of the respondent's disturbance at the time and would have appreciated what might flow from the ventilation of a claim of sexual abuse. His Honour also took into account that in that particular era it was not unusual for such allegations to be swept under the carpet. It was open for his Honour to assess this evidence on that basis. I see no error in the manner in which his Honour dealt with this issue.

46 Under ground 6 the appellant in substance complains that the learned trial judge wrongly dismissed the notes of Dr Hogan as 'cursory in the extreme when his evidence was that he recorded all relevant matters'. To understand the possible relevance of Dr Hogan's notes it is necessary to refer to the respondent's evidence in chief that said she could only remember the appellant inserting a finger into her vagina on one occasion and her cross-examination that he could have digitally penetrated her up to four occasions.

47 The respondent had first commenced to see Dr Hogan in 1982 and had continued to attend him for treatment up to the time of the trial. The respondent testified that she first told Dr Hogan about the appellant in 2002 and thereafter had made numerous references to the appellant's conduct in the course of her consultations with Dr Hogan.

48 The respondent was challenged in cross-examination as to the frequency with which she had raised her allegations concerning the appellant with Dr Hogan. She was also challenged as to what she had told Dr Hogan about the number of times she had been digitally penetrated by the appellant. She denied having told Dr Hogan that the appellant inserted his fingers into her vagina 14 times.

49 Reliance was placed upon the notes of Dr Hogan which were tendered in evidence and which recorded four occasions, the first being March 2002 and the last October 2004 in which there is a reference to the appellant. Dr Hogan was not asked whether the respondent discussed the appellant with him on any other occasions. There is also a reference on the third of those occasions, 19 May 2003, to the respondent being digitally raped. Counsel for the appellant submitted that the note was of a complaint of digital penetration on 14 occasions but his Honour considered it more likely that the note recorded that it occurred on two occasions.[41] The view reached by his Honour was plainly open and is likely to be correct. Moreover Dr Hogan's explanation of the note supports that view.[42]

50 Dr Hogan testified that his notes would not be comprehensive and that matters that were already known would not be recorded again. He said that had the respondent presented on any occasion as highly anxious or depressed because of her memories of what occurred with the appellant, he would have made a note to that effect. His Honour concluded that Dr Hogan was not a careful or comprehensive note-taker and was not satisfied that what had emerged in his notes was in any way a complete record of what was discussed by him with the respondent. He accepted the testimony of the respondent that Dr Hogan only rarely appeared to take notes when she engaged in conversation with him, that being consistent with the notes that were tendered in evidence. Such conclusions were clearly open to his Honour. There is no substance in the submission that his Honour failed to give due weight to the evidence of Dr Hogan.

51 Under ground 10 complaint is made 'that the learned trial judge ignored the conflict between the respondent's evidence and her Statement to Police and her Record of Interview with the Medical Practitioners Board of Victoria' and failed to give any or sufficient reason for attaching little or no significance to such conflict. The respondent had testified that during one of the consultations the appellant was on top of her as they lay on the floor. She had got scared and retreated back to the consulting chair. In his reasons the learned trial judge referred to the submissions that the respondent had made no reference to this episode in her police statement or in the report to the Medical Board. Counsel for the appellant had submitted that as this was the culminating event that led to the respondent terminating her association with the appellant, it was surprising that it had not been referred to in either prior statements. On appeal it was asserted that His Honour gave no reasons as to why these variations in account did not significantly impact upon the respondent's credibility.

52 To have significant variations in a witness's account put aside without explanation may give rise to a feeling of injustice in the mind of a reasonable litigant.[43] Where the Court is unable to ascertain the reasoning of the decision maker or where because of the manner of expression, justice may not be seen to be done, the court may be more readily disposed to finding error on the part of the decision maker. But the appellant bears the onus of demonstrating that His Honour did not properly consider the argument put by the appellant at trial. Such a burden could only be satisfied by reference to material which persuasively suggests that the trial judge failed to discharge his judicial duty of giving proper consideration to the appellant's argument.[44]

53 I reject the contention that the trial judge did not deal with these variations in account in his reasons. After referring to the conflict between what the respondent had said in her evidence and the absence of any reference to this incident in her statements, his Honour, in dealing with that and other variations in the accounts given by the respondent, concluded that the disparities had been overstated and did not necessarily have the significance which counsel for the appellant attributed to them. As counsel for the respondent submitted on appeal, it was the knowledge that the appellant was having a baby which precipitated the closure of the relationship and not the incident when they were on the floor. His Honour said that he took such differences into account in considering whether or not the respondent had discharged the onus of proof.

54 I am not persuaded that there was any error in the approach adopted by his Honour or that such variations in the respondent's account, all of which were adverted to by the learned trial judge, demanded the conclusion that the respondent had not discharged her onus of proof. The weight which the tribunal of fact attaches to the testimony of a witness will often not be capable of rationalisation beyond the statement that the tribunal accepts what the witness says,[45] the conclusions resting as much on intuition based on experience as on formal and deductive reasoning.[46]

55 There were additional reasons advanced on the appellant's behalf why the trial judge should not have been reasonably satisfied by the respondent's evidence. She had testified that the appellant had advised her to take two 10 mg tablets of Valium prior to a consultation so that she could cope with the drive from her home to the appellant's consulting rooms. It was the appellant's evidence that he had only ever administered Valium in 10 mg lots intravenously to patients in hospital and would never prescribe Valium at those levels before driving. Counsel for the appellant at trial had submitted that it was highly improbable that such advice had been given by the appellant. His Honour accepted that to be a legitimate point but considered that there was 'ample scope for error' and that the respondent seemed definite that that was the dosage she had been advised to take. On appeal counsel for the respondent drew attention to the notes of Dr Hogan which tend to suggest that it was not unlikely that he prescribed dosages of 10 mg tablets of Valium for the respondent.

56 Counsel for the appellant also relied upon the respondent's testimony that she became upset after she discovered that the appellant was still cohabiting with his wife who had recently given birth to their child. At trial, counsel for the appellant had submitted that it was improbable that she would have become disenchanted with the appellant upon learning of such information. It had been submitted that there was no logic to the respondent becoming upset when she was claiming to be a vulnerable person of whom the appellant had taken advantage. That argument was rightly rejected. His Honour did not consider it surprising that there would be a degree of disillusionment by a psychiatric patient upon becoming aware that she had been misled by her consultant.

57 I am not persuaded that any of the grounds of appeal have been made out. Each of the matters which the appellant relies upon in support of the contention that the respondent failed to discharge her burden of proof was the subject of specific consideration by the learned trial judge in his reasons for judgment. In my opinion the grounds of appeal, whether viewed in isolation or combination, do not warrant the conclusion that his Honour's finding concerning the credibility of the respondent was in error. There are no incontrovertible or uncontested facts which called for a different conclusion nor are there facts rendering any of the conclusions reached by his Honour `glaringly improbable' or `contrary to compelling inferences.'[47] It was open to the trial judge to be satisfied the respondent was honest and reliable and that the allegations made by her were true. The appeal must therefore be dismissed.**

[3] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 304-5; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; G v H [1994] HCA 48; (1994) 181 CLR 387.

[5] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 701; Hocking v Bell (1944) 44 SR (NSW) 468, 477 (affirmed in Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 464, 500); Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521; Wentworth v Rogers (No.5) (1986) 6 NSWLR 534, 539.

[6] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[7] Jonesco v Beard (1930) AC 298, 300; Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362; Helton v Allen [1940] HCA 20; (1940) 63 CLR 691, 711; Hocking v Bell (1944) 44 SR (NSW) 468, 478 (affirmed in Hocking v Bell [1945] HCA 16; (1945) 71 CLR 430, 464, 500); Wentworth v Rogers (No.5) (1986) 6 NSWLR 534, 538.

[8] Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[9] See, eg, Motchall v Massoud [1926] VicLawRp 43; (1926) VLR 273, 276.

[10] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170-2; Vines v Australian Securities and Investment Commission [2007] NSWCA 75, [808]-[813].

[11] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171; Clarke v Stingel [2007] VSCA 292, [36].

[12] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 172.

[13] Clarke v Stingel [2007] VSCA 292, [34] (Warren CJ, Chernov and Kellam JJA) .

[14] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362-3 (Dixon J); Osborne v Estate of Frederick Osborne and Daisy Osborne [2001] VSCA 228, [27]; Customs v Labrador Liquor Wholesale [2003] HCA 49; (2003) 216 CLR 161, [144]; Gianoutsos v Glykis [2006] NSWCCA 137, [48]-[49].

[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362, 369; Gianoutsos v Glykis [2006] NSWCCA 137, [47]; Kantor & Anor v Vosahlo [2004] VSCA 235, [21].

[16] Dr Hogan's notes first record such allegations in March 2002 which is when the respondent says she first told him.

[17] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, [12] (Menzies J), [2] (Windeyer J).

[18] Fox v General Medical Council (1960) 3 All ER 225.

[19] Gordon Fraser v The Queen [1995] SASC 5335; (1995) 65 SASR 260, [16] (Doyle CJ); The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 479 (Dixon CJ).

[20] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 495 (Windeyer J).

[21] Gordon Fraser v The Queen [1995] SASC 5335; (1995) 65 SASR 260, [21] (Doyle CJ); R v Pidoto [2002] VSCA 60, [53] (Vincent JA).

[22] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476; Transport and General Insurance Co Ltd v Edmondson [1961] HCA 86; (1961) 106 CLR 23; Beattie v Ball (1999) VSCA 227.

[23] Britton v Commissioner for Road Transport (1947) 47 SR (NSW) 249, 251 (Jordan CJ); The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476 (Windeyer J referred to in Starkie on Evidence (3rd ed 1842).

[25] Wentworth v Rodgers (No 10) (1987) 8 NSWLR 398, 401; DPP v Heinze [2005] VSCA 124, [58] (Eames JA).

[26] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, [4]-[5] (Windeyer J).

[27] R v Martin (1997) 68 SASR 419, 433-4, 441 (Doyle CJ).

[28] R v Titijewski [1970] VicRp 48; (1970) VR 371, 375 (Winneke CJ).

[29] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 487 (Menzies J); Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, [78]. The distinction made between the permissible use of the content of the statement as re-enforcing the witness's credibility and its prohibited use as evidence of the truth has not been without criticism. See, for example, ALRC Report 26 Volume 1 Evidence, 1985 (Interim) - 13. Hearsay evidence; A Roden, 'Criminal Evidence - The Law and the Gobbledegook', in Proceedings of the Institute of Criminology, No 48, Criminal Evidence Law Reform, University of Sydney. 1981, 24; Law Reform Commission of NSW, 1.2.37. R v Suleyman Gelal, Unreported, Victorian Court of Criminal Appeal (12 October 1982); R Cross, 'Some Proposals for Reform in the Law of Evidence' (1961 ) 24 ML Rev 32, 46; WB Campbell, 'Recent and Suggested Reform in the Law of Evidence' (1967-8) 8 WALR 61, 75; JB Weinstein & MA Berger, Weinstein's Evidence, Matthew Bender, New York, 1979, 801-82.

[31] Kilby v The Queen [1973] HCA 30; (1973) 129 CLR 460, 472 (Barwick CJ): Bull v The Queen [2000] HCA 24; (2000) 201 CLR 443, [79]; R v Munday [2003] VSCA 189; (2003) 7 VR 423, [27] (Ormiston JA); R v Demiri [2006] VSCA 64, [47] (Redlich AJA); R v King [1995] QCA 48; (1995) 78 A Crim R 53; R v Georgiev (2001) VSCA 18, [41] (Brooking and Phillips JJA); R v Heinze [2005] VSCA 124; (2005) 153 A Crim R 380; Gordon Fraser v The Queen [1995] SASC 5335; (1995) 65 SASR 260, [24], [60]-[61] (Olsson J); Cross on Evidence - Aust ed vol 1 [17305]; Gillies - Law of Evidence in Australia, 2nd ed, 167.

[33] Campbell v Burrows Engineering (2002) SASC 96, [ 32]-[33].

[34] The Nominal Defendant v Clements [1960] HCA 39; (1960) 104 CLR 476, 477-80 (Dixon CJ), 486-90 (Menzies J) and 490-6 (Windeyer J); Inderjit Singh v Minister for Immigration and Multicultural Affairs (1998) FCA 1366 (29 October 1998) (Weinberg J).

[35] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [24]-[26].

[36] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551; Devries v Australian National Railways Commission (1992-93) 177 CLR 472, 479; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598; Hoyts Pty Ltd v Burns [2003] HCA 61; (2003) 77 ALJR 1934; Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572.

[37] CSR Ltd v Della Maddalena [2006] HCA 1; (2006) 80 ALJR 458; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 128 [28]-[29], 139 [66], 165-6 [148]; Devries v Australian National Railways Commission (1992-93) 177 CLR 472; State Rail Authority (NSW) v Earthline Constructions [1999] HCA 3; (1999) 73 ALJR 306; Effem Foods Pty Ltd v Lake Cumbeline Pty Ltd [1999] HCA 15; (1999) 161 ALR 599.

[38] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, [98] (Kirby J); Barneveld v Hume City Council [2004] VSC 350, [23]-[24].

[39] Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267 [147], [151]-[152]

[43] Where significant falsehoods are not addressed see Barneveld v Hume City Council [2004] VSC 350 [30]-[31], Sun Alliance Insurance Ltd v Massoud [1989] VicRp 2; [1989] VR 8, 18.

[44] Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 77 ALJR 1598, [63].

[45] Soulemezis v Dudley (Holdings) Pty Ltd( 1987) 10 NSWLR 247, 273 (Mahoney JA)

[46] Day v Electronik Fabric Makers (Vic) Pty Ltd & Anor [2004] VSC 24, [38] (Nettle J).

[47] State Rail Authority (NSW) v Earthline Constructions [1999] HCA 3; (1999) 73 ALJR 306; Forder v Hutchinson [2005] VSCA 281, [48].

At a glance

Court

Decision date

Before

Source

Judgment (122 paragraphs)

Parties

Cases Cited (26)