HIS HONOUR: Right, Mr Osborne. You're now on an official strike. We are not running the criminal trial, so this is not relevant.

MR OSBORNE: Your Honour, I'm trying to make a point.

HIS HONOUR: Mr Osborne. Not relevant. Next question.

MR OSBORNE: Ms [Butler], in your police statement, you told the police that you had a shower at my tattoo shop - - -

MR HUTCHINSON: Sorry, Your Honour, I object.

HIS HONOUR: Mr Osborne, I'm giving you a second and final warning. We are not going to revisit the criminal trial. Ms [Butler] is not going to be cross examined by you about the matters upon which you have been convicted.[24]

1. The judge did, however, permit the applicant to tender the police statement of the respondent. When the judge subsequently asked the applicant to explain the relevance of the document, a heated exchange ensued:

HIS HONOUR: ... What line of questioning do you wish to pursue flowing from the statement?

MR OSBORNE: About her telling the police that she had a shower at my tattoo shop.

HIS HONOUR: Well, that question will not be allowed.

MR OSBORNE: Why not?

HIS HONOUR: Because it's irrelevant to this case.

MR OSBORNE: It proves she's an unreliable witness, Your Honour.

HIS HONOUR: Okay, Mr Osborne, I'm not allowing the question.

MR OSBORNE: Won't - this is - Your Honour, this is unbelievable.

HIS HONOUR: Well, believe it, Mr Osborne.

MR OSBORNE: Allow [sic].

HIS HONOUR: What is unbelievable at the moment is that you seem unable to follow instruction about asking relevant questions, so can we please try and focus on that.

MR OSBORNE: So you won't allow evidence of prior inconsistent statements.

HIS HONOUR: I'm not allowing evidence, which has already been given in a criminal proceeding in which you were convicted of the offences, relied on for the purpose of this civil proceeding. That's what I'm not allowing.

1. The applicant expressed his objection to the course the judge was taking on a number of occasions, not always in respectful terms. The discussion appears to have proceeded to some extent at cross purposes:

MR OSBORNE: Your Honour, what you're doing is, you won't allow to me use any evidence at all that proves that she's made a prior inconsistent statement earlier on and so you're going to try and pretend, and give a judgement, that she's a truthful and honest witness when she's not.

HIS HONOUR: Okay. Objection noted. Next question.

MR OSBORNE: So I'm not allowed to use anything out of the statement, or I am? Your Honour? Because - - -

HIS HONOUR: The statement in my view is - - -

MR OSBORNE: - - - the statement was used during the trial.

HIS HONOUR: The statement in my view - - -

MR OSBORNE: So, am I allowed to use it or I'm not allowed to use it?

HIS HONOUR: You are allowed to ask relevant questions. I don't understand how anything in the statement is relevant but you tendered it.

MR OSBORNE: And so I'm allowed to use it now?

HIS HONOUR: No, it's irrelevant but you tendered it so I went with the path of least resistance. But we are not running the criminal trial.

MR OSBORNE: But how about if I can prove that she's lying on a point, Your Honour? That's she's - - -

HIS HONOUR: Okay. So why don't we try and ask some questions relevant to this case and see whether you can prove it that way.

MR OSBORNE: Okay, well, how do you suggest a question and I'll ask it. I think - - -

HIS HONOUR: No, I'm not - - -

MR OSBORNE: - - - that's what (indistinct) be better off doing. You should suggest it and then I'll ask it, Your Honour, because it's - it's the only way you'll be happy.

HIS HONOUR: All right. Well, if I was to suggest a question, I would suggest a question that you don't ask any more questions because I don't think you've asked any that are relevant. Now, if you've got a relevant question, ask it. If you haven't, say, 'I have finished, Your Honour', and we'll move to the next stage of the trial.

MR OSBORNE: No. You're being unfair, Your Honour.

HIS HONOUR: Noted, Mr Osborne.

MR OSBORNE: And you're encouraging her to lie.

HIS HONOUR: I'm not encouraging - - -

MR OSBORNE: You're encouraging - - -

HIS HONOUR: - - - her to do anything, Mr Osborne.

MR OSBORNE: Yes, you are. You're - and you're going to encourage other - other drug addicts are going to come forward and make false allegations against people because they know that they can get away with it.

HIS HONOUR: Right. So Mr Osborne, you make a speech like that again, I will assume that you have finished your cross-examination.[25]

1. At a later point, the applicant attempted to go back to the question he had raised in opening as to whether the respondent had initially made allegations of three separate offences rather than two:

MR OSBORNE: I'm just going to go through me notes and see what else, please. (To witness) Ms [Butler], I'm being sued for allegations you've made about two - you claim, two offences that were made against you. Did you ever tell the police that there was three - - -

HIS HONOUR: Okay, so Mr Osborne, that's dangerously close to the three strike policy. We are not running the criminal trial.

MR OSBORNE: Your Honour, it got struck out. One - one charge got struck out by the magistrate because he didn't believe her.

HIS HONOUR: Okay, well, I don't know that to be the case, it might have been struck out for all sorts of reasons but it's not relevant to this case. Okay?[26]

1. The other evidence in the respondent's case was given by a psychiatrist and a psychologist. It is not necessary to refer to that evidence.
2. When the time came for the applicant to give evidence, the judge asked him which topics he intended to give evidence about. The applicant plainly did not appreciate the difference between evidence and submissions, despite a number of attempts by the judge to explain that difference to him. Leaving that issue to one side, the judge also reiterated that the criminal trial was not being 'run again'. The judge said, 'so if you want to get in the box and start telling me stories - or give evidence, rather, about events that happened back in February 2008, I'm not going to allow it'. The judge told the applicant that he could give evidence about matters of which he had direct knowledge relevant to the case, with the 'caveat' that 'we are not running the criminal trial'.
3. The applicant subsequently asked why he had not been permitted to put to the respondent that she had admitted to her sister that the allegations against the applicant were false. The judge gave the following explanation:

If you had never been convicted, if you are running your own criminal defence, you could put a document to a witness and you could ask a question about it. The point you are missing is this, you have been convicted and that is, under the Evidence Act, an admission that can be used against you. And that is the basis upon which this trial has proceeded. And so going back to revisit the criminal trial is not happening.[27]

1. It is not necessary to set out details of the evidence given by the applicant. The matter proceeded to final addresses, with the respondent going first despite being the plaintiff, in light of the fact that the applicant was self-represented. It is relevant to note that counsel for the respondent relied on the reasons for sentence to support a submission that aggravated damages ought to be paid by reference to the conduct of the applicant in the course of the offending, including failing to wear a condom and ejaculating in the respondent's mouth.
2. Before the applicant started his closing submissions, the judge outlined the issues which the case presented. Relevantly for present purposes, he said:

So, as you are aware, this is a claim in which the plaintiff seeks damages arising out of the matters for which you were convicted. I note your evidence earlier this afternoon. So, the first issue is whether I'm satisfied that the admission of those convictions stands. The next issue would be, if I am satisfied that those - that the convictions stand and therefore the plaintiff is entitled to damages by reason of the matters associated with those convictions, firstly, what is a fair and reasonable sum for her pain and suffering, loss and enjoyment of life.

1. The conduct of the hearing shows plainly that the judge did not regard the applicant as being entitled to seek to contest the facts underlying his convictions. Both before and during the trial, he prevented the applicant from putting in issue the credibility of the respondent and the veracity of her evidence at trial. The respondent was only required to give evidence of the consequences of the criminal conduct and the judge treated the fact of the convictions as foreclosing inquiry into the fact of the sexual assaults.
2. Consistently with s 92(2), the record of the convictions stood as evidence of the fact that the applicant had sexually penetrated the respondent on two occasions when she was aged under 16. But the applicant was entitled to seek to displace that evidence, either by advancing evidence of his own, or by cross-examining the respondent as to whether the criminal conduct had in fact occurred. It is by no means clear that the applicant had a factual foundation for that endeavour, but the judge foreclosed the inquiry before that could be ascertained. In particular, the judge refused to allow the applicant to call witnesses who it was said could give evidence about the respondent having made false allegations against him, and refused to permit alleged past inconsistent statements to be put to the respondent in cross-examination. In these ways, the judge misconstrued and misapplied s 92(2).

1. It follows that the first two proposed grounds are made out. It is unnecessary to decide whether the judge also denied the applicant procedural fairness or conducted the trial in such a way as to give rise to a reasonable apprehension of bias. But it should be recognised in that context that the case presented multiple difficulties, by reason of the sensitive subject matter, the personalities involved, the relative obscurity of the critical legal issue and the fact that the applicant was unrepresented.

1. Leave to appeal should be granted and the appeal allowed. The judgment of the trial judge should be set aside and the matter remitted for rehearing. Subject to any argument to the contrary, the respondent should pay the applicant's costs of the appeal, but should have a certificate for her costs under s 4 of the Appeal Costs Act 1998.
2. The Court acknowledges the very considerable assistance provided by pro bono counsel for the applicant in this matter.

[1] Osborne v The Queen [2018] VSCA 160.

[2] No issue is taken before us about the adequacy of the pleading or the existence of a tort consisting of 'wrongful and illegal' conduct.

[3] Citing Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188.

[4] It is not clear what the judge meant by describing the convictions as an 'admission' by the applicant, who had pleaded not guilty at the trial. Nothing appears to turn on this designation.

[5] [1943] KB 587 ('Hollington').

[6] Ibid 598 (Goddard LJ for the Court).

[8] [1907] UKLawRpCh 85; [1907] 2 Ch 236.

[9] Ibid 244 (Cozens-Hardy MR), 257 (Buckley LJ). A more equivocal position was taken by Sir Gorrell Barnes P: at 252-3.

[10] [1913] UKLawRpKQB 168; [1914] 1 KB 1.

[11] Ibid 3-4 (Ridley J, Scrutton and Bailhache JJ agreeing at 5).

[12] McKinley v Delaney [1914] ArgusLawRp 138; [1915] VLR 66.

[13] [1944] SAStRp 34; [1944] SASR 145.

[14] JD Heydon, Cross on Evidence (LexisNexis, 14th ed, 2024) [5220].

[15] Z Cowen, 'The Admissibility of Criminal Convictions in Subsequent Civil Proceedings' (1952) 40 California Law Review 225, 240, citing CA Wright, 'Case and Comment: Evidence - Admissibility of Criminal Convictions in Civil Actions - Hearsay' (1943) 21 Canadian Bar Review 653, 658.

[16] Australian Law Reform Commission, Evidence (Interim Report No 26, 1985) 441-2 [772].

[17] Other than those that have been set aside or are subject to pending review or appeal, or in respect of which a pardon has been given: Evidence Act 2008, ss 92(2)(a)-(c).

[18] Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188, 206 [66] (Campbell J), endorsed on appeal in Gonzales v Claridades [2003] NSWCA 227; (2003) 58 NSWLR 211, 215 [16] (Mason P, Beazley JA agreeing at 222 [54], Foster AJA agreeing at 222 [55]).

[19] Prothonotary of the Supreme Court of New South Wales v Gregory [2017] NSWCA 101 [23] (Bathurst CJ, Beazley P and Sackville AJA); Prothonotary of the Supreme Court of New South Wales v Livanes [2012] NSWCA 325 [9] (McColl JA, Campbell JA agreeing at [52], Meagher JA agreeing at [53]); Prothonotary of the Supreme Court of New South Wales v Sukkar [2007] NSWCA 341 [9] (Hodgson JA, Tobias JA agreeing at [32], Basten JA agreeing at [33]); cf obiter dicta in Edwards v State Trustees Ltd (2016) 54 VR 1, 32 [116] (Santamaria JA) (see also 31 [110]).

[20] No issue was raised before us or, it seems, in the County Court, as to the fact that lack of consent was not an element of the offences of which the applicant was convicted. In the civil proceeding, the respondent relied on the fact of the convictions notwithstanding that it might be contended that they were incapable of establishing a lack of consent. The respondent did not, in any event, expressly plead a lack of consent as part of the cause of action, although it is probably implicit in the allegation of 'assault or battery'. The alternative formulation of 'rape', raised only at one point in the pleading, could also be said to raise the issue by implication.

[21] (Emphasis added). See as to the reference to an 'admission', n 4 above.