Plaintiff v Defendant

1 The plaintiff, Mr Elliot Clifford,[1] brings this proceeding against the defendant, the Corporation of the Society of the Missionaries of the Sacred Heart, seeking damages for injuries he allegedly suffered between 1975 and 1977, whilst he was a boarding student at Monivae College in Hamilton (the College).

2 The plaintiff's claim against the defendant - the Catholic order which operated the College - arises out of three discrete alleged episodes of sexual and physical abuse.

3 First, the plaintiff alleges that in 1975, when he was in Form 1 and aged between 11 and 12 years old, he was sexually and physically abused by five other students at the College (the student abuse).

4 Second, the plaintiff alleges that he was sexually abused on one occasion in either 1975 or 1976 by Brother John Frith (Br Frith), a Brother of the defendant's order. Br Frith was in charge of the College infirmary. In the incident in question, the plaintiff alleges that he attended the infirmary complaining of a sore throat, for which he was examined by Br Frith. During this examination, the plaintiff alleges that Br Frith placed one of his hands down the back of the plaintiff's pants and pushed his finger into the plaintiff's anus (the Frith abuse).

5 Third, the plaintiff alleges that he was sexually abused on one occasion in either 1976 or 1977 by Mr Edward Mamo, who at the time was a Brother of the defendant's order.[2] Prior to the incident in question, the plaintiff had been caught smoking by Mr Mamo. The plaintiff alleges that as punishment, Mr Mamo directed him to drop his pants and underpants, and bend over a wooden box. The plaintiff alleges that Mr Mamo then strapped him twice on the bare buttocks (the Mamo abuse).

6 The plaintiff alleges the defendant is liable in negligence for each of the three incidents of abuse, as well as vicariously liable for the Frith abuse and the Mamo abuse.

7 The defendant denies the Frith abuse, and does not admit the student abuse, nor the Mamo abuse. If any such abuse is established, the defendant denies that it is liable.

8 This ruling is in relation to tendency evidence which the defendant sought to rely upon in its denial of the alleged Frith abuse (the defendant's tendency evidence). So as to understand the potential relevance of this proposed evidence, it is first necessary to outline the tendency evidence which I previously ruled the plaintiff was permitted to rely upon in this proceeding.[3]

9 The plaintiff alleges that Br Frith abused minors at the College prior to, and during, the period he was enrolled, and that Br Frith had a reputation amongst students as a person who engaged in inappropriate conduct with minors at the College. The plaintiff alleges that the defendant knew or ought to have known prior to the Frith abuse, that Br Frith had a propensity to behave dangerously and inappropriately with minors, in particular by touching boys' genitals under the pretext of medical examination.

10 The plaintiff served a tendency notice pursuant to s 97 of the Evidence Act 2008 (the Act)[4] to enable him to seek to adduce such evidence.

11 Section 97 is as follows:

(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.

12 The plaintiff sought to rely upon the following tendencies in respect of Br Frith:

Tendency 1: to have a particular state of mind, namely a sexual interest in children and a willingness to act on that interest;

Tendency 2: to act in a particular way, namely to touch children in a sexual manner and to sexually abuse children;

Tendency 3: to have a particular state of mind, namely a willingness to use his role as Brother of the defendant's order, and of being in charge of the College infirmary, to exploit the vulnerability of children and the trust they had in him because of those roles, and a willingness to act on the opportunities that vulnerability and trust created to sexually abuse children; and

Tendency 4: to have a particular state of mind, namely a disregard for the physical and mental well-being of children.

13 The plaintiff submitted that these asserted tendencies were relevant to facts in issue in the proceeding, including:

(a) whether the Frith abuse occurred;

(b) whether Br Frith's role in the infirmary afforded him the authority, power, trust, control and ability to achieve intimacy with the plaintiff; and

(c) whether Br Frith's inappropriate and sexually abusive behaviour towards minors at the College should have been detected by other staff at the College, or other members of the defendant's order.

14 The plaintiff proposed that his tendency evidence be adduced through documentary evidence (also the subject of a hearsay notice pursuant to s 63 of the Act), together with oral evidence which was proposed to be given by two former students of the College, Mr Shane Ross and Mr Gary Pearce. The plaintiff's tendency notice was to the effect that Mr Ross and Mr Pearce would give evidence that they were each sexually abused by Br Frith, on separate occasions, whilst receiving medical treatment in the College infirmary between approximately 1977 and 1979.

15 In determining that the plaintiff should be permitted to adduce the evidence of Mr Ross and Mr Pearce, I was satisfied that, if accepted, it had significant probative value. When viewed as a whole, the evidence was capable of supporting a conclusion that Br Frith had at least the first three tendencies claimed in the plaintiff's tendency notice.[5] If accepted, such evidence was capable of rationally affecting the assessment of the probability of the existence of a relevant fact in issue: whether the plaintiff was abused by Br Frith. I was not persuaded to exclude the evidence under s 135 of the Act, as I was not satisfied that its probative value was outweighed by a danger that it might be either unfairly prejudicial to the defendant; misleading or confusing; or would result in an undue waste of the Court's time. In so ruling, I considered it relevant that the proceeding was being heard by a judge alone. Further, I noted that Br Frith was to be called as a witness for the defendant, and would have the opportunity to respond to the tendency evidence.

Background to and particulars of the defendant's tendency evidence

16 On 6 and 9 September 2024, I heard submissions regarding the defendant's proposed tendency evidence. On 10 September 2024, I ruled that this evidence would not be admitted in the proceeding. I indicated at the time that I would publish written reasons later. These are my reasons.

17 The defendant's tendency notice asserted the following tendencies of Br Frith:

Tendency 1: to act in a particular way, namely with care, compassion, respect and dignity towards the children in his care; and

Tendency 2: to have a particular state of mind, namely no sexual interest in children at all.

Tendency 2 was further particularised as the tendency of Br Frith to act in a particular way, namely that he did not demonstrate or otherwise act on any sexual interest in boys who came into his orbit at the relevant time, including when alone and in private with vulnerable individuals.

18 The defendant submitted the tendency evidence was relevant to the following facts in issue in the proceeding:

(a) whether the Frith abuse occurred; and

(b) whether Br Frith had a propensity to sexually abuse children.

19 In table A of the defendant's tendency notice, the sources of the proposed tendency evidence were outlined, as well as the relevant conduct and circumstances establishing the alleged tendencies. There were five witnesses outlined in the notice which the defendant sought to call, who were to give the following oral evidence in relation to Br Frith:

(a) Mr Simon McIntyre was a boarder at the College between 1975 and 1979. During this period, Mr McIntyre was alone with Br Frith in the College infirmary to seek medical assistance on several occasions. On these occasions, Br Frith acted with care, compassion, respect and dignity, and did not demonstrate or otherwise act on any sexual interest towards him.

(b) Mr Martin Richardson was a boarder at Chevalier College, a school operated by the defendant where Br Frith was based after leaving the College, between 1990 and 1995. Mr Richardson approached Br Frith on numerous occasions in a distressed and vulnerable state in the Year 7 dormitory, when he was 12 years old, and was alone in Br Frith's presence. On these occasions, Br Frith acted with care, compassion, respect and dignity, and did not demonstrate or otherwise act on any sexual interest towards him.

(c) Mr Paul Downie was a boarder at Chevalier College between 1992 and 1995, and was under the direct care of Br Frith in 1992, when he was 15 years old. Br Frith acted with care, compassion, respect and dignity, and did not demonstrate or otherwise act on any sexual interest towards him.

(d) Mr Kieran Kennedy was a boarder at Chevalier College between 1993 and 1996, and was under the direct care of Br Frith in 1993 when he was 15 years old. He was House Captain of the boarding house in 1995, and closely observed Br Frith's interactions with boarders. Br Frith acted with care, compassion, respect and dignity, and did not demonstrate or otherwise act on any sexual interest towards him.

(e) Mr Matthew Hall was a boarder at Chevalier College between 1988 and 1993. In 1988, he sustained an injury to his genitals and sought assistance from Br Frith in the infirmary. Br Frith acted with care, compassion, respect and dignity, and did not demonstrate or otherwise act on any sexual interest towards him.

20 As well as the five witnesses outlined in the defendant's tendency notice, the defendant sought to adduce evidence from an additional witness, Mr James Kelly, a former student of the College.[6] Insofar as it related to the issues the subject of this ruling, Mr Kelly was to give evidence to the effect that he received medical treatment from Br Frith for a haemorrhoid condition, and that Br Frith looked after him in a caring manner.

21 In Hughes v The Queen,[7] a majority of the High Court explained the process of reasoning engaged in when considering tendency evidence:

The trier of fact reasons from satisfaction that a person has a tendency to have a particular state of mind, or to act in a particular way, to the likelihood that the person had the particular state of mind, or acted in the particular way, on the occasion in issue.[8]

22 Principles relevant to determining the admissibility of tendency evidence in a civil proceeding were distilled in a ruling by J Forrest J in DP (a pseudonym) v Bishop Bird.[9] There his Honour said:

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. That evidence, if accepted, must rationally affect the assessment of the probability of the existence of the fact (or facts) in issue.
• Second, the tendency evidence (which should be viewed as a whole, and not piecemeal, and in light of the other evidence adduced in the case) 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.

• Third, the tendency must be one of some specificity and not at a high level of generality. This means that a feature or features of the tendency evidence must link that evidence with the allegation(s) in the proceeding.
• Fourth, it is necessary to establish that the tendency evidence is of significant probative value. 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.[10]

23 The third principle outlined above by his Honour was made with references to decisions including Hughes, where the Court stated:

The assessment of the significant probative value of the proposed evidence does not conclude by assessing its strength in establishing a tendency. The second matter to consider is that the probative value of the evidence will also depend on the extent to which the tendency makes more likely the elements of the offence charged. This will necessarily involve a comparison between the tendency and the facts in issue. A tendency expressed at a high level of generality might mean that all the tendency evidence provides significant support for that tendency. But it will also mean that the tendency cannot establish anything more than relevance. In contrast, a tendency expressed at a level of particularity will be more likely to be significant.[11]

24 Hughes was applied by the New South Wales Court of Appeal in Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D,[12] a decision setting aside the first instance orders of the primary judge in proceedings involving allegations of institutional liability for child sexual abuse, on grounds including that the primary judge had erred in their admission and use of tendency evidence. Most recently, the High Court endorsed the reasoning in Hughes in its decision of Director of Public Prosecutions v Benjamin Roder (a pseudonym).[13]

25 The defendant submitted that the evidence of the witnesses outlined in paragraph [19] above, was to the effect that Br Frith had opportunities to sexually abuse those students, including examining one of their genitals on one occasion, and did nothing untoward. It was put that the asserted tendencies were to the effect that Br Frith did not have a sexual interest in or a propensity to sexually abuse children, and consequently did not sexually abuse the plaintiff. The defendant submitted that the witnesses' evidence that Br Frith had acted in a way which demonstrated he did not have a sexual interest in children, was significantly probative of a fact in issue so as to justify its admission.

26 Further, it was submitted by the defendant that it ought be permitted to adduce evidence of this competing tendency, in light of the plaintiff having been granted leave to rely on tendency evidence to the contrary.

27 In response, the plaintiff submitted that tendency evidence could not be used to prove a negative - that is, a tendency to not have a particular state of mind, or to not act in a particular way. Even if permissible, the plaintiff submitted that evidence regarding how Br Frith behaved (or did not behave) with five other students was not probative of whether the Frith abuse occurred. In addition, it was submitted that there was insufficient similarity of conduct, circumstance, and time, between those witnesses contact with Br Frith, and the plaintiff's, to enable such evidence to be admitted as tendency evidence.

28 The defendant's tendency evidence must not be admitted for several reasons.

29 First, s 97 of the Act provides for the admission of evidence as to a person's character, when it is being adduced to prove that person has or had a tendency to act in a particular way, or to have a particular state of mind.

30 The High Court decisions of Hughes, R v Bauer (a pseudonym),[14] McPhillamy v The Queen,[15] and Roder, concern tendency evidence under s 97 of the Act, in respect of whether a person had a tendency to act or think in a particular way. Those cases do not refer to, nor do they contemplate, any tendencies that relate to a person not acting or not thinking in a particular way.

31 In criminal proceedings, the tendency rule contained in s 97 of the Act, is subject to specific exceptions in respect of character evidence of an accused person, which pursuant to s 110, may only be admitted in limited circumstances. As is obvious, that section has no application here. I reject the defendant's suggestion that the absence of an equivalent provision in respect of civil proceedings opens the prospect of character evidence of the type outlined in the defendant's tendency notice to be admitted under s 97.

32 A person not acting in a particular way, or not thinking in a particular way, is not a tendency which is capable of attracting the provisions of s 97 of the Act. Nor is a person acting with care, compassion, respect and dignity towards others - that is simply acting as a normal, decent person is expected to act. The categorisation of such character attributes as constituting a positive tendency is an impermissible attempt to get around the tendency rule contained within s 97.

33 As was observed in Hughes, tendency evidence is admitted to assist the Court when 'the disputed evidence [makes] more likely, to a significant extent, the facts that make up the elements of the offence charged'.[16] Such reasoning did not extend, and should not extend, to a tendency which makes the elements of the offence less likely.

34 Even if I am wrong in my conclusion that this does not constitute tendency evidence, to be admissible, such evidence must have significant probative value. It must, if accepted, rationally affect the assessment of the probability of the existence of the fact (or facts) in issue. In order to do so, the evidence should be capable of increasing the likelihood of the asserted conduct of the relevant person as alleged. Evidence of a competing tendency, which is consistent with the defence of a person's action, fails to satisfy such criteria. It is simply evidence that, when observed, they behaved as a normal, decent person. The self-serving nature of such evidence further limits its probative value. Relevantly here, that a number of students under the care of Br Frith held him in high regard and were not mistreated or sexually abused by him, is not probative of whether others, including the plaintiff, were not.

35 In so deciding, I am unaware of, and the defendant was unable to take me to, any case law where a court has ruled on the admissibility of tendency evidence to the effect that an alleged perpetrator of child sexual abuse had a tendency to not have a sexual interest in children, and/or had a tendency to act with care, compassion, respect and dignity towards children.

36 In answer to a question of mine as to whether tendency evidence, of the type sought here, had been admitted in a civil proceeding, the defendant stated the only identifiable authority was the decision of Connor v Blacktown District Hospital.[17] That case, decided in New South Wales prior to the introduction of the Act, was in relation to a workplace injury. The plaintiff was electrocuted at work, and claimed this was due to inadequate cleaning of the electrical item she was handling at the time. The defendant sought to adduce evidence to the usual practice of cleaning staff employed by the defendant. On appeal, such evidence was held to be relevant and admissible. Asprey JA (with whom Mason JA agreed) stated:

In my opinion, evidence of a relevant practice may be given by a person who, on a sufficient number of occasions and over a sufficient period, has regularly and uniformly performed acts, or has observed the regular and uniform performance of acts by others, under the same circumstances and upon the same occasions, so as to make it appear probable in the minds of reasonable men that, given the same circumstances and occasions, the like acts will again be performed. Such evidence, if accepted by the tribunal of fact, will enable it to draw the inference that such acts were performed by that person or those others, as the case may be, where the same occasion and circumstances for their performance have subsequently recurred at a point of time connected sufficiently closely with the continuity of acts related in the evidence.[18]

37 The defendant characterised the evidence the subject of the decision in Connor as tendency evidence. Judicial commentary suggests that this is not the case, despite the similarity between evidence of usual practice, and tendency evidence.[19] Regardless, Connor turned on its facts. For the reasons outlined above, I do not consider that the proposed evidence meets the required threshold for admissibility under s 97 of the Act.

38 In so determining, I have also had regard to the Federal Court decision in Bective Station Pty Ltd v AWB (Aust) Ltd.[20] There an issue arose as to whether an employee of the respondent had made representations to the applicant concerning the future availability of wheat. Pursuant to s 97 of the Act, Branson J granted the applicant leave to adduce affidavit evidence from three witnesses to the effect that they had received similar representations from the employee. However, her Honour did not permit the respondent to adduce its own affidavit evidence in response from other clients, which was to the effect that the employee had not made similar statements to them.[21] In so holding, her Honour observed:

... It is not necessary for me to express a concluded view on whether this evidence was appropriately characterised as tendency evidence. I accept that it was evidence of the character and conduct of Mr Adams. I formed the view that the probative value of this evidence, if adduced, would have been, at best, slight. The evidence sought to be adduced by Bective Station was not intended to establish, and did not tend to establish, that Mr Adams had an invariable practice of making statements to a particular effect. Having regard to Mr Adams' evidence that he would never have said words to the effect that the supply of wheat in Australia would run out, evidence that he did not say words to that effect on nominated occasions is of little, if any, probative weight. By contrast, evidence that he did say words to that effect may have, and I concluded in the circumstances to which Messrs Rowland, Setter and Gillogly deposed, did have, significant probative value.[22]

39 Similar observations have been made by myself in this ruling.

40 In view of the above, it is unnecessary for me to consider the plaintiff's alternate submission that there are insufficient features of the tendency evidence to link it to the defendant's denial of the alleged Frith abuse.

[1] The plaintiff is referred to by a pseudonym pursuant to an order of Baker JR dated 9 December 2022.

[2] Since the period the subject of the plaintiff's claim, Edward Mamo has been dismissed from the defendant's order. I therefore refer to him as Mr Mamo in this ruling.

[3] Oral ruling given on 3 September 2024.

[4] For the purposes of this ruling, a reference to the Act should be taken as a reference to the applicable Evidence Act in the relevant jurisdiction under the Uniform Evidence Legislation.

[5] It was unnecessary for me to determine whether such evidence was capable of supporting the fourth claimed tendency. I indicated that if necessary, I would hear from the parties on this in closing submissions.

[6] The plaintiff did not contend that the defendant had failed to give reasonable notice as required by s 97 (1)(a) of the Act.

[7] [2017] HCA 20; (2017) 263 CLR 338 ('Hughes').

[8] Ibid 348 [16] (Kiefel CJ, Bell, Keane and Edelman JJ).

[9] [2021] VSC 453.

[10] Ibid [20] (citations omitted), with reference to Hughes (n 7), R v Bauer (a pseudonym) [2018] HCA 40; (2018) 266 CLR 56 ('Bauer'), and McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045 ('McPhillamy'). His Honour's summary was subsequently adopted by Keogh J in Lonergan v Trustees of The Sisters of Saint Joseph & Anor [2021] VSC 650 at [30], and O'Connor v Comensoli [2022] VSC 313 at [46]. I note that his Honour's decision in O'Connor was subsequently appealed, but not in respect of the tendency evidence ruling.

[11] Hughes (n 7) 363 [64], see also the Court's statement of broader relevant principles at 356-7 [40]-[42].

[12] [2022] NSWCA 119 at [38] (Bell CJ, Gleeson and Brereton JJA).

[13] [2024] HCA 15 ('Roder') at [24].

[16] Hughes (n 7) at [40], approving R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451 at 485 [125] (emphasis added).

[17] [1971] 1 NSWLR 713 ('Connor').

[19] See for instance, Phelan v Melbourne Health [2019] VSCA 205 [82]-[83]; Neville v Lam (No 3) [2014] NSWSC 607 [105].

[20] [2006] FCA 1596.