Plaintiff v Defendant

1 DP[1] alleges that in 1971, when he was five or six years of age, he was assaulted by a Catholic priest, Father Bryan Coffey, at his parents' home at Port Fairy.

2 Putting aside the legal niceties, DP in a civil claim sues the Diocese of Ballarat through the current Bishop, Paul Bird, the named defendant.[2] DP asserts that the Diocese is vicariously liable for the actions of Father Coffey; additionally, he says that it has a direct liability for Father Coffey by reason of the Diocese's (and the relevant Bishop's) authority and control over the conduct of Catholic priests serving in the Western District of Victoria.

3 This ruling concerns the admissibility of tendency evidence from nine witnesses who also make allegations about Father Coffey's conduct in the 1960s and 70s. This body of evidence is sought to be adduced by DP under s 97 of the Evidence Act 2008 (the 'Act').

4 For its part, the Diocese does not admit that Father Coffey assaulted DP and denies that it has any liability for the actions of Father Coffey (either vicariously or directly).

5 It is not in issue that in February 1999 at the Ballarat County Court, Father Coffey (after pleading not guilty to all counts) was tried and convicted of 12 counts of indecent assault upon eight males under the age of 16 years. The statements of four of these victims who gave evidence at the trial are contained within the tendency notice.[3]

6 Father Coffey was subsequently sentenced by Judge Michael Kelly to a total three years' imprisonment, wholly suspended for three years.

7 The nine witnesses (seven alive - including the four who gave evidence at the criminal trial - and two deceased) allege that, in the 1960s and 70s as children or young teens, they were assaulted by Father Coffey, their parish priest. DP contends that the testimony of the nine men is admissible as tendency evidence demonstrating a common feature: to put it generally, of Father Coffey's sexual interest in young Catholic schoolboys, which he acted upon to commit sexual assaults.

8 The Diocese opposes the leading of this body of evidence, contending that the terms of s 97 of the Act are not satisfied. If they are, then it says that the evidence of all nine witnesses should be excluded pursuant to s 135. If it fails on that point, it argues that I should make a limited use direction pursuant to s 136 or give leave to adduce this evidence on terms under s 192.

9 None of the Diocese's submissions are persuasive. For the reasons now set out DP has satisfied the terms of s 97 and is entitled to rely upon the evidence of these nine witnesses. Their evidence is patently relevant to a fact in issue: it has sufficiently specific and clear common threads relevant to Father Coffey's state of mind and sexual conduct as demonstrated by the allegations of the nine witnesses. It is of significant probative value to DP's case. It is admissible.

10 The s 135 point as to the danger of unfair prejudice has some force but ultimately fails. The ss 136 and 192 contentions are unsustainable.

11 DP's allegations against Father Coffey are set out in the Second Further Amended Statement of Claim. It is alleged that:

During 1971, Father Coffey sexually abused the plaintiff.

The sexual abuse consisted of Father Coffey fondling the plaintiff's penis and testicles and tickling the [p]laintiff's upper body.

12 Greater detail of these allegations is set out in DP's answers to the Diocese's interrogatories:

Father Coffey often visited my family home for pastoral visits in the evenings. He visited me in my bedroom on numerous occasions and sat on the end of my bed to talk to me.

On the occasion of the first incident of sexual abuse Father Coffey was at my home as a guest at a party held one evening by my parents. I was tired and Father Coffey picked me up, placed me over his shoulder, smacked my bottom and took me into my bedroom. He placed me into my bed, following which I tried to fall asleep. I then felt Father Coffey's hands move under the sheets of my bed, and he fondled my penis and testicles, under my pajamas.

On the second occasion, Father Coffey was a guest at my home for a pastoral visit. I took him outside to the backyard to show him a tent which I had received as a Christmas present. Father Coffey entered the tent with me, then he lifted my shirt and started tickling my stomach and chest area. I felt uncomfortable about him touching me, and as I was aware that my mother was in the backyard, I called out 'Mum'. Father Coffey then stopped tickling and touching me and left the tent.

The tendency allegations and the evidence on this application

13 I determined to hear this question (ie the admissibility of the evidence of the tendency witnesses) as a preliminary issue, as requested by the Diocese and acquiesced to by DP.

14 Counsel for the Diocese then submitted that I should conduct a voir dire on the application which, in effect, would have required several of the witnesses to give evidence twice in this proceeding. After discussion, and with the eventual agreement of the Diocese, the application proceeded on the basis that it should be determined by reference to the relevant representations (to use the terminology of the Act) contained within the signed statements made by each of the nine men. This approach is consistent with the practice in this State in criminal trials, particularly so since the High Court decision in IMM v The Queen.[4]

15 Each statement was made either to investigating police officers or to a representative of the Towards Healing organisation.

16 Father Coffey died in 2014. Two of the tendency witnesses (Michael Glennen and Bernard Healy) are dead and their statements will be tendered at trial under s 63 of the Act.[5] The other seven will give viva voce evidence at the trial, all, of course, subject to this application being successful.

17 DP 's lawyers provided a table containing the particulars of conduct of Father Coffey in relation to nine witness statements[6] between the years 1960 and 1976.[7] A modified version is set out below.

1. A boy aged 6-7 years was sexually abused by Coffey including in the boy's home during a visit by Coffey. On each occasion Coffey put his hands down the boy's pants, kneaded his buttocks and rubbed around his anus.

Coffey's mother's home in Ballarat; the boy's home in Ballarat.

In the course of 'horseplay' between Coffey and the boy and in the context of Coffey's pastoral work in the parish.

3. A boy aged 6 years was sexually abused by Coffey in the boy's home. Coffey put his hands down the boy's pants, fondled his genitals and pushed his finger upon the boy's anus.

In the course of 'horseplay' between Coffey and the boy and in the context of Coffey's pastoral work in the parish.

• Deceased. Evidence sought to be adduced under s 63 by tender of a statement made to police.

4. A boy aged 8 years was sexually abused by Coffey at the boy's home. Coffey put his hands down the boy's pants, pretended to smack him and pushed his finger into the boy's anus.

In the course of 'horseplay' between Coffey and the boy and in the context of Coffey's pastoral work in the parish.

5. A boy in Years 3-6 was sexually abused by Coffey at St Patrick's School, Port Fairy and the sacristy of the Port Fairy Church. Coffey grabbed the boy when naked in the shower and fondled and rubbed his penis and penetrated the boy's anus with his finger. During altar boy service, Coffey held the boy from behind, placed his hand in the boy's pants and fondled his penis and testicles. The boy saw Coffey touching other boys in the shower after football.

Sports change rooms; sacristy of the Port Fairy. Church.

Following school football games, during altar boy service and in the context of Coffey's pastoral work in the parish.

6. A boy in Years 3-6 was sexually abused by Coffey in the sacristy of the Port Fairy Church, at the boy's home, and at St Patrick's School, Port Fairy. During altar boy service, Coffey held the boy from behind, pressed his erect penis into the boy's back, and placed his hand in the boy's pants and fondled his buttocks. Following a football competition, Coffey grabbed the boy when naked in the shower and rubbed his thighs. The boy saw Coffey touching other boys in the showers after football.

Sports change rooms; the boy's home in Yambuk; sacristy of the Port Fairy Church.

While the victim was engaged in altar boy duties, during a visit by Coffey to the boy's home to see his parents, and in the showers following a football game, and in the context of Coffey's pastoral work in the parish.

7. A boy in Year 2 was sexually abused by Coffey at St Patrick's School, Port Fairy. The boy was directed to attend Coffey in a room at the School, where Coffey placed his hand in the boy's pants and fondled his penis.

When the boy was directed by a nun at the School to attend Coffey in a room at the School, and in the context of Coffey's pastoral work in the parish.

8. A boy in Year 6 was sexually abused by Coffey at St Patrick's School, Port Fairy. The boy was directed to attend Coffey in a room at the School, where Coffey spanked the boy's bare bottom, rubbed his backside and anus and penetrated the boy's anus with his finger.

When the boy was directed by a nun at the School to attend Coffey in a room at the School, and in the context of Coffey's pastoral work in the parish.

12-13 years was sexually abused by Coffey in the presbytery of St Joseph's Church in Ouyen during school hours. Coffey spanked the boy's bare buttocks and fondled his genitals. Coffey went on cross-country runs with the boy during lunchtimes on school days and the boy was required to change in the presbytery and be weighed by Coffey near the shower.

The boy was sent to see Coffey in the presbytery by teachers. The boy was required to go on cross-country runs and to change and shower in Coffey's bedroom in the presbytery, and in the context of Coffey's pastoral work in the parish.

10. A boy aged about 13 years was sexually abused by Coffey while a pupil at St Joseph's School, Ouyen at the presbytery of St Joseph's Church, Ouyen. Coffey required him to change in Coffey's bedroom after cross-country runs, weighed him while naked, and on at least four occasions made the boy lay on his bed and then rubbed the boy's thighs and buttocks before forcefully penetrating the boy's anus with his penis.

Following lunchtime cross-country runs while changing and showering in Coffey's bedroom in the presbytery, and in the context of Coffey's pastoral work in the parish.

• Deceased. Evidence sought to be adduced under s 63 by tender of a statement made to police.

18 DP's tendency notice served under s 97 of the Act asserts that three distinct tendencies can be distilled from the relevant representations contained in the statements:

The tendency sought to be adduced is -

(a) the tendency of Coffey, while Assistant Parish Priest of Port Fairy, to have [had] a particular state of mind, namely, to have had:

(i) a sexual interest in Catholic children who resided in the Parish;

(ii) a sexual interest in children who were members of the congregation that worshipped at the Church.

(b) the tendency of Coffey, while a priest of the Diocese of Ballarat, to have had a particular state of mind, namely, to have had:

(i) a sexual interest in children within the parishes in which he operated;

(ii) a sexual interest in children within the Churches with which he was associated in the parishes in which he operated.

(c) the tendency of Coffey to act in a particular way, namely, to engage in acts of sexual abuse of children, and in particular to[:]

(i) create and/or take advantage of situations in which he was alone with children, including in their home;

(ii) touch and/or fondle children's genitals and other intimate parts of their bodies.

The evidence of the tendency witnesses meets the requirements of s 97 of the Act

19 The tendency rule is set out in s 97 of the Act:

97 The tendency rule

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

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

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

(2) Subsection (1)(a) does not apply if -

(a) the evidence is adduced in accordance with any directions made by the court under section 100; or

(b) the evidence is adduced to explain or contradict tendency evidence adduced by another party.

20 For the purpose of the adducing of tendency evidence in a civil proceeding of this type I consider that the following conditions must be met:

• First, the tendency and the fact (or facts) in issue which it is said to prove must be identified.[8] That evidence, if accepted, must rationally affect the assessment of the probability of the existence of the fact (or facts) in issue.[9]
• Second, the tendency evidence (which should be viewed as a whole, and not piecemeal,[10] and in light of the other evidence adduced in the case[11]) must be capable of sustaining the conclusion that the relevant person had an identified tendency to:

(a) act in a particular way; and/or

(b) have a particular state of mind.[12]

• Third, the tendency must be one of some specificity and not at a high level of generality.[13] This means that a feature or features of the tendency evidence must link that evidence with the allegation(s) in the proceeding.[14]
• Fourth, it is necessary to establish that the tendency evidence is of significant probative value.[15] So it is fundamental that the evidence increases the likelihood of the asserted conduct of the relevant person as alleged to such an extent that it is of significant probative value.
• Fifth, and for completeness, the common law test for propensity is to be ignored.
• Finally, if the tendency evidence is shown to have significant probative value, this (in an appropriate case) must not be substantially outweighed by the danger that the evidence might either be unfairly prejudicial to a party; be misleading or confusing; or, cause undue waste of time in the proceeding, such that the court is persuaded to exercise its discretion to exclude the evidence irrespective of its admissibility.[16]

Application of the principles to this application

21 DP contends that the tests laid down by s 97 as interpreted and applied by the High Court in Hughes, Bauer and McPhillamy are satisfied. I have set out the terms of the tendency notice. Viewed in the broad, DP says that the tendency evidence discloses both the state of mind and the course of conduct towards young Catholic boys residing in the parish for which Father Coffey had responsibility. It is thus of significant probative value in determining the allegations made by DP against Father Coffey.

22 The Diocese says that none of the statements are admissible under the tendency provisions as they do not satisfy the threshold tests. If anything is to be tendered under s 97 it should only be limited extracts of the sentencing reasons of Judge Kelly relating to the four witnesses who gave evidence at the criminal trial.

The tendency evidence discloses specific tendencies relevant to a fact in issue

23 The tendency evidence relates to a relevant fact in issue and the probability of its existence: the alleged assault by Father Coffey upon DP.

24 However, I do not accept that the tendencies as asserted by DP in the tendency notice can be sustained in the detail asserted. Rather I consider that the tendency demonstrated by the alleged conduct of Father Coffey, as disclosed in the statements and when viewed in totality, has two common features.

25 First, his sexual interest in young Catholic boys who came into his orbit whilst a serving priest in the Western District of Victoria. Secondly, his conduct in acting on that desire by physically interacting with, to the point of assaulting, young Catholic boys in the Western District.

26 I am satisfied that these two common threads are present in each of the accounts of the tendency witnesses and that of DP and that the necessary specific tendency is established. As I have said it is relevant to the determination of whether the assault upon DP occurred.

The tendency evidence is of significant probative value

27 The next question is whether this body of tendency evidence, viewed in its totality, is of significant probative value in determining the issues in this case. In my view it is.

28 The battleground in this case demonstrates its probative force. As the written submissions of the Diocese reveal, the account given by DP as to the alleged misconduct will be strongly challenged. It can be anticipated that it will be contended by the Diocese that his account is inherently unreliable; the circumstances relatively minor and unlikely to be accurately or credibly recalled; and perhaps the product of recent invention by DP.

29 To meet one or all of these arguments, it will be submitted by DP that the tendency evidence, both in volume and general consistency, reinforces and buttresses against attack his account of the circumstances of the alleged conduct of Father Coffey.

30 The putative evidence of these nine tendency witnesses strongly enhances the case of DP, as a review of the allegations of DP and comparison with the evidence summarised in the first column of the table at [17] demonstrates.

31 Viewed in this way and in its entirety the tendency evidence is patently of significant probative value to the determination of the central fact in issue in this trial - did the alleged assault occur?

32 Each of the tests required to be met by the Act under s 97 is met.

The tendency evidence should not be excluded under s 135

33 Section 135 gives the Court a discretion not to admit evidence

if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

...

(c) cause or result in undue waste of time ...

Unfair prejudice - s 135(a)

34 There are many authorities (both at trial and appellate level) concerning the application of s 135 in criminal and civil proceedings. I think that the following can be distilled for the purpose of this application:

• that the party objecting to the otherwise admissible evidence carries the onus of satisfying the Court that the danger of unfair prejudice substantially outweighs the probative value of the relevant evidence;[17]
• that procedural disadvantage, such as the inability to test the reliability or veracity of the relevant evidence is properly taken into account when determining the question of the danger of unfair prejudice;[18] and
• that procedural disadvantage may be occasioned by both an inability to cross-examine and/or a limited ability to cross-examine the relevant witness.[19]

35 The primary basis for the Diocese's submission is that the delay between the occurrence of the event (1971) and the first notification of complaint by DP (2019) is so significant that it is hamstrung, if not completely precluded, from making enquiries and investigating the reliability or veracity of the nine tendency witnesses.

36 In a variety of other contexts, the question of delay and the ability of a party to meet an opponent's case has been of such significance that a claim has either been stayed or dismissed. For instance, in the civil context, this arises in the consideration of applications for extension of time and an abuse of process stay based on the proposition that a fair trial is not possible.[20] A number of authorities were analysed in detail by Keogh J recently in Grant v Bird.[21]

37 Whilst Grant involved consideration of delay in the context of an application for a permanent stay on the basis of abuse of process, the analysis of Keogh J is helpful in a number of ways in the determination of this application.

38 In Grant the plaintiff alleged that he was sexually abused by a Father O'Brien in 1980 or 1981. At the time of the complaint Father O'Brien was over 80 years of age and he died in 1985. The plaintiff was either eight or nine years of age.

39 No other allegation of sexual misconduct had been made against Father O'Brien. No criminal proceedings had been instituted against him. There was no Diocesan file suggesting history of sexual abuse or behaving in an inappropriate manner towards children. The plaintiff's complaint was first made 20 years after the impugned conduct.

40 Keogh J drew particular attention to the statement of McHugh J in Longman v The Queen:[22]

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 ...

No matter how honest the recollection of the complainant in this case, the long period of delay between her formal complaint and the occurrence of the alleged events raised a significant question as to whether her recollection could be acted upon safely. The likelihood of error was increased by the circumstances in which the complainant said the incidents occurred. The opportunity for error in recalling, twenty years later, two incidents of childhood which are alleged to have occurred as the complainant awoke, and then pretended to be asleep, are obvious. Experience derived from forensic contests, experimental psychology and autobiography demonstrates only too clearly how utterly false the recollections of honest witnesses can be ...

To the potential for error inherent in the complainant's evidence must be added the total lack of opportunity for the defence to explore the surrounding circumstances of each alleged offence. By reason of the delay, the absence of any timely complaint, and the lack of specification as to the dates of the alleged offences, the defence was unable to examine the surrounding circumstances to ascertain whether they contradicted or were inconsistent with the complainant's testimony.[23]

41 It follows from these observations that there is force in the Diocese's submission that it cannot fairly meet the case or test the evidence of the nine tendency witnesses and particularly those who have died. On this application the Diocese did not lead any evidence as to specific prejudice occasioned by delay. However, that is not fatal to its case. The problems facing the Diocese in meeting this case are similar to a number of those explained by Keogh J in Grant when determining whether the continued prosecution of a sexual abuse case constituted an abuse of process:

The plaintiff first reported the alleged abuse more than 20 years after he said it occurred. Because decades had already passed the defendant could not investigate the alleged abuse and surrounding circumstances at a time when memories were fresher and could be expected to be more reliable. That difficulty is compounded by the vagueness of the plaintiff's allegation that the abuse occurred in about 1980 or 1981. The combination of delay and the uncertain timing mean there is no opportunity for the defendant to explore the surrounding circumstances of the alleged abuse and determine whether those circumstances contradict or corroborate the plaintiff's allegation.

The plaintiff may have an honest recollection of the alleged abuse. However, as the judgment of McHugh J in Longman demonstrates, that honest recollection may not be reliable. There are three reasons for this. First is the lapse of time between the alleged abuse and the plaintiff's recall of the event in 2001, and the further lapse of time until trial. Second, the plaintiff's recollection of an event which occurred when he was a child may be particularly susceptible to error. Third is the plaintiff's recall of the alleged abuse during transcendental meditation after having no specific thoughts of it for about 20 years.

Dr Hacker and Dr Adlard accept the plaintiff's explanation of recall of the abuse. Their evidence supports the plaintiff's case, which compounds, or at least demonstrates, the difficulty faced by the defendant. Quite reasonably Dr Hacker and Dr Adlard base their reports and opinions on the unchallenged account of the plaintiff. Because of the lapse of time and loss of evidence the defendant does not have the opportunity to challenge the allegation of abuse, or to uncover and examine details of the plaintiff's history since 1981 which may be relevant to the opinions expressed by the psychiatrists.

I accept the defendant's submission that Bishop Connors' letter to the plaintiff including the Towards Healing process is not an admission that the abuse occurred.

Because it cannot now know what Father O'Brien or Mr Powell would say in response to the allegation of abuse, or test the allegation by timely investigation of surrounding circumstances, the defendant cannot effectively defend the case brought by the plaintiff. The most the defendant can hope to achieve is to challenge the plaintiff's account because he did not report the abuse for over two decades, only recalled it during transcendental meditation, and has given histories which the defendant argues are materially inconsistent. The defendant has no real opportunity to participate in the hearing by contesting the allegation of abuse, or admitting it on an informed basis.[24]

Many of these observations hold good in relation to the Diocese's ability to meet the tendency evidence in this case. However, there are a number of countervailing factors that arise here and were not present in Grant.

42 The first, and the most striking, is that unlike Grant, Father Coffey's conduct towards young boys has been known to the Diocese since, it can be assumed, the mid-to-late 1990s when the allegations of abuse, which ultimately led to the Ballarat trial, arose. There has been an abundance of time, when witnesses were alive, and memories fresher, to gauge the extent and nature of Father Coffey's conduct towards young boys within the Diocese.

43 Second, four of the witnesses were tested in cross-examination by counsel for Father Coffey at the Ballarat trial. Whilst there is no record of the evidence given at the trial, it can be readily assumed that if their evidence was not challenged then it was accepted by Father Coffey. Alternatively, if it was challenged it was accepted by the jury. Whatever the case, Father Coffey had his opportunity to test their evidence and the Diocese must have been aware of all the circumstances surrounding his trial, including the reliability and veracity of those four witnesses.

44 Third, I accept that the other five tendency witnesses are in a somewhat different category to the four who gave evidence. However, I repeat that the Diocese has been on notice since the mid-to-late 1990s, and at the latest since the verdict in the Ballarat trial, to investigate extensively the activities of Father Coffey. It had the opportunity to speak to parishioners and parents of children who may have been affected by his conduct. So, this is a very different case to that of Grant.

45 I also accept that there is, at least in relation to the evidence of one of the tendency witnesses, an asserted variation of some substance between accounts given by him of Father Coffey's behaviour at different occasions. However, this is a trial by judge alone and those inconsistencies, together with the question of the effect on his evidence of the passage of time, can be tested at the trial.

46 Finally, no material has been adduced by the Diocese to identify precisely what, if anything, in terms of investigations it did after it first knew of the allegations against Father Coffey, nor as to what it has done since DP made his claim.

47 Ultimately, while I am satisfied that the delay itself has caused a degree of prejudice to the Diocese, its knowledge of Father Coffey's behaviour towards young boys for at least 20 years in the past diminishes the prejudice and is relevant to the exercise of the discretion in favour of DP. Against that, the tendency evidence is highly significant in determining whether the assault by Father Coffey occurred.

48 So, when it comes to the balancing exercise I cannot be satisfied that the danger of unfair prejudice outweighs the significant probative value of the tendency evidence.

Undue waste of court time - s 135(b)

49 The Diocese's application under s 135 that the Court's time would be unduly wasted by hearing the tendency evidence is, I consider, futile and does not need to be considered.

Sections 136 and 192 - discretion to limit the use of admitted evidence

50 Section 136 gives the court a discretion to limit the use of evidence that has been admitted in the following terms:

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of evidence may -

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing.

51 Section 192 enables the court to impose any terms on any leave, permission or direction it may grant or make:

192 Leave, permission or direction may be given on terms

(1) If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2) Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account -

(a) the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b) the extent to which to do so would be unfair to a party or to a witness; and

(c) the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d) the nature of the proceeding; and

(e) the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

52 The Diocese contends that given that the tendency evidence is adduced to support DP's allegations as to what occurred at the family home in 1970 or 1971, then it should be confined to that issue alone.

53 I reject that submission. It appears to be primarily motivated by a fear that some of this evidence may be used in determining the questions of direct liability in negligence on the part of the Diocese or as to its vicarious liability for the actions of Father Coffey. To put it less obliquely, such evidence may be relevant to the knowledge of the Diocese, or its administrators or clergy - those in charge of the behaviour of Father Coffey in or around 1970. Secondly, it may go to the extent of Father Coffey's pastoral duties and thus be relevant to determining where the line for vicarious liability ends.

54 The ready answer to the contention is that if the evidence does go to these issues then, it would, ipso facto, be relevant to an issue in the trial and admissible under s 55.

55 Given that this is a trial by judge alone, there is, in my view, no risk of this evidence being misused and there is no need for a direction under s 136.

56 For the reasons propounded by counsel for DP, I also doubt very much whether s 192 is applicable, as the admission of evidence under s 97 is not a 'leave, permission or direction'. Even if it was, for the reasons I have already set out, it would not be appropriate to make such an order.

57 The evidence of the nine tendency witnesses is admissible without limitations.

[1] The plaintiff is referred to by a pseudonym pursuant to an order of Irving JR made on 21 April 2021.

[2] The exact legal identity and potential legal liability of the defendant is governed by the provisions of the Legal Identity of Defendants (Organisational Child Abuse) Act 2018. For the purpose of this ruling, this does not need to be explored further and I have referred to the defendant as 'the Diocese'.

[3] Notice of Intention to Adduce Tendency Evidence filed 21 July 2021.

[4] (2016) 257 CLR 300.

[5] The tender was originally opposed by the Diocese, but ultimately it accepted that the statements were able to be received under s 63 of the Act.

[6] On this application counsel for DP withdrew the submission that the record of the sentencing reasons of Judge Kelly should be received. However, counsel reserved their client's position in relation to the admissibility of this document in the course of the trial.

[7] The table originally contained allegations made by 10 male persons, but one was withdrawn during the course of the hearing.

[8] Hughes v The Queen [2017] HCA 20; (2017) 263 CLR 338, 348-9 [16] ('Hughes').

[10] R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56, 88 [59] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ) ('Bauer').

[13] McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045, 1052 [36]-[38] (Edelman J) ('McPhillamy'); Hughes 363 [64] (Gageler J).

[14] Hughes 363 [64] (Gageler J); Bauer 87 [58]; McPhillamy 1051 [32] (Kiefel CJ, Bell, Keane and Nettle JJ).

[15] Act s 97(1)(b). The majority in Hughes suggests that whether evidence has 'significant' probative value turns on its impact upon the fact-finding exercise: 'significant' probative value is 'lower than ... "substantial" probative value; but ... [the] evidence must still be "important" or "of consequence" to the assessment of the probability of the existence of a fact in issue': at 368-9 [81]. See also Gageler J at 370 [86]: the impact must be 'significant enough to justify the risk of cognitive error which tendency reasoning entails. The statutory standard of "significant", and its non-statutory but helpful synonyms "important" and "of consequence", are best understood and applied purposively in that light'.

[16] Act s 135. This is not a requirement of s 97; rather, it flows from s 135 and is often (but not always) relied upon to argue the exclusion of the tendency evidence.

[17] See, eg, Workers Compensation (Dust Diseases) Board (NSW) v Smith [2010] NSWCA 19, [84] (Basten JA).

[18] See, eg, R v Quaimi (No 24) [2016] NSWSC 505, [59] (Hamill J); R v Darmody [2010] VSCA 41, [45] (Nettle and Ashley JJA and Habersberger AJA).

[19] See, eg, Commonwealth of Australia v McLean [1996] NSWSC 657; (1996) 41 NSWLR 389, 401-2 (Handley and Beazley JJA); Kennedy v Wallace [2004] FCA 332, [122] (Gyles J); Longhurst v Hunt [2006] NSWCA 91, [46] (Stein AJA); Galvin v The Queen [2006] NSWCCA 66, [40] (Howie J); Ordukaya v Hicks [2000] NSWCA 180, [38] (Sheller JA) (in relation to hearsay evidence).

[20] See Brisbane South Regional Health Authority v Taylor [1996] HCA 25; (1996) 186 CLR 541, 551 (McHugh J); Connellan v Murphy [2017] VSCA 116, [54]-[55] (Priest, Beach and Kaye JJA); Moubarak by his tutor Coorey v Holt [2019] NSWCA 102; (2019) 100 NSWLR 218.

[21] [2021] VSC 380 ('Grant').

[22] [1989] HCA 60; (1989) 168 CLR 79 ('Longman').

[23] Ibid 107-8 (McHugh J) (citations omitted), quoted in Grant [36].