[2017] HCA 20
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
[2000] FCA 1886
McPhillamy v The Queen [2018] HCA 52
Source
Original judgment source is linked above.
Catchwords
[2017] HCA 20
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51[2000] FCA 1886
McPhillamy v The Queen [2018] HCA 52
Judgment (3 paragraphs)
[1]
Solicitors:
Auslex Law Group (Plaintiff)
Wotton + Kearney (First Defendant)
Murphy's Lawyers Inc (Second Defendant)
File Number(s): 2018/347128
[2]
JUDGMENT
I made orders yesterday concerning two tendency notices that had been served by the plaintiff on the first defendant. I indicated that my reasons would follow at a later time. These are my reasons.
The first notice is dated 2 December 2022. The second notice is dated 7 December 2022. Both notices were served pursuant to s 97 of the Evidence Act 1995 (NSW).
Section 97 states:
(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.
The plaintiff provided written submissions in support of the first application. On reading the submissions, and hearing the plaintiff's oral submissions, it soon became apparent that the plaintiff was substantially amending the tendencies that he was seeking to establish. Essentially, the plaintiff abandoned any tendencies involving conduct concerning the second defendant's behaviour in respect of male children.
In the written submissions the plaintiff recast the asserted tendencies as follows:
"In these proceedings, the plaintiff says simply that (SS) was or is a male person:
(a) with a predisposition towards engaging in flirtatious and sexually suggestive behaviour, directed towards other male persons;
(b) that the behaviour is initiated by (SS);
(c) that the behaviour manifests itself in risqué comments and suggestion;
(d) that given opportunity, (SS) progresses his conduct to physical touching, (without invitation);
(e) that the conduct is carried out by him in circumstances in which (SS) directs it towards persons who are members of and/or who regard themselves as being under the spiritual authority of the Maronite church."
Despite the above late reformulation, the first defendant fairly took no point that it had not received reasonable notice.
The second defendant adopted the position and submissions of the first defendant.
The parties referred me to a number of authorities, but both parties drew substantial support for their respective positions from the decision of the High Court in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 ('Hughes'). Hughes was endorsed by the High Court in McPhillamy v The Queen [2018] HCA 52; (2018) 92 ALJR 1045, at [16]:
"The scheme of the Evidence Act with respect to the admission of tendency evidence about a defendant adduced by the prosecution in a criminal proceeding is explained in Hughes v The Queen. Section 97(1) conditions the admission of evidence to prove that a person has or had a tendency to act in a particular way, or to have a particular state of mind, on the court's assessment that the evidence will, by itself or taken with other evidence adduced by the party seeking to adduce it, have 'significant probative value."
It is worth noting here that, this being a civil case, the provisions of ss 97A and 101 of the Evidence Act 1995 (NSW) do not apply.
In the context of a civil case, Sackville J (with whom Whitlam and Mansfield JJ agreed) said the following in the Full Federal Court in Jacara Pty Ltd v Perpetual Trustees WA Ltd [2000] FCA 1886; (2000) 106 FCR 51, at [61]:
"The critical question in a case in which the tendency rule stated in s 97(1) is said to apply to evidence of conduct is whether the evidence is relevant to a fact in issue because it shows that a person has or had a tendency to act in a particular way. To adopt the language of Cowen and Carter, the question is whether the evidence of conduct is relevant to a fact in issue via propensity: in so far as the evidence establishes the propensity of the relevant person to act in a particular way, is it a link in the process of proving that the person did in fact behave in the particular way on the occasion in question?"
The first defendant identified the two questions that needed to be asked in order to assess whether the proposed evidence has significant probative value:
"(1) the extent to which the evidence supports the tendency; and
(2) the extent to which the tendency makes more likely the facts in issue."
In identifying the facts in issue, the first defendant concentrated on the event which allegedly occurred in the second defendant's motor car in October 2005. This event is described in para 26 of the further amended statement of claim, filed on 22 October 2021. The first defendant submitted that the evidence proposed to be adduced could not be probative of this allegation.
Suffice to say that the second defendant entirely denies the allegations made by the plaintiff.
I think the substantial point of difference between my assessment of the tendency application and that of the first defendant is that, in my view, the plaintiff's allegations are not confined to the event in the motor car. It is readily apparent from para 26 of the further amended statement of claim that the asserted sexual abuse is alleged to have occurred over about a two-year period and the allegations included a number of separate events. These events include both allegations of touching and also of grooming. They all involve allegations of unwanted conduct performed by the second defendant, a male, upon the plaintiff, also a male.
The witnesses to be called who will address the asserted tendencies are Mr KN, Father KB, Mr GT, Mr KSC and Mr HC.
Mr KN's statement includes an allegation that the second defendant caressed KN's lower chest, and his stomach and then that the second defendant's "hand moved lower." All of these actions were unsolicited and unwelcome.
In Father KB's statement he refers to the second defendant interacting with a 15-year-old male in the Sacristy of the church at the centre of these proceedings. He refers to the second defendant looking at the young man with "diluted" eyes and a "smile on his face." The second defendant is then said to have "stroked the side of the youths face, running the tips of his fingers along the chin line."
Father KB also refers to the second defendant frequently being "tactile with young men to an extent I considered abnormal." He states that he has never "seen other adult males hug and hold their heads to the chests of youths in the way I have seen (SS) do so." He also refers to SS "hugging and kissing adolescent males at the church on several occasions."
The first defendant submitted that the references to hugging and kissing need to be seen in a cultural context, noting that the second defendant was from Lebanon where it was possible that greetings included hugs and kisses. The difficulty with that submission is that the whole of the conduct alleged about the second defendant is denied; it is not explained as having occurred as a cultural greeting.
Mr GT's statement refers to the second defendant touching his leg and moving "his hand from my thigh area towards my groin." He says that the second defendant "attempted to touch my penis and genitals on occasions."
Mr KSC's statement says that when he was a young man (about 15) the second defendant hugged him and later entered into an exchange of text messages with him. These messages included the second defendant writing that he missed Mr KSC which prompted these further text messages:
"Mr KSC: It was well, I'm just about to have a shower, so goodnight.
The second defendant: do you want some help in the shower."
I understand the semi-colon used in the text exchange to refer to a wink.
Mr HC is KSC's father. His statement is corroborative of his son's statement. It was agreed by the first defendant that the admissibility of the statement would rise or fall with my decision in respect of Mr KSC.
The contents of the statements of the above witnesses do not all describe similar events, and they occur at different times, but they do demonstrate a consistency of the second defendant's conduct and attitude towards other males. This attitude is precisely the tendency that the plaintiff wishes to establish. Bearing in mind the absolute denial by the defendants of the allegations made by not only the plaintiff but also the above witnesses, I am of the view that the asserted tendency "strongly supports the proof" of the material facts in issue, namely the allegation of sexual abuse made by the plaintiff in para 26 of the further amended statement of claim.
Turning now to the tendency notice dated 7 December 2022, it was not abandoned, but rather pressed with faint enthusiasm. The plaintiff accepted that the asserted failure of the first defendant to act upon complaints about the conduct of the second defendant was a factual matter mostly confined to the evidence of the plaintiff concerning a meeting he had with his Bishop in which the plaintiff was told that the matter could be resolved by paying him some money and sending the second defendant off to Lebanon. There is really no tendency aspect to the assertions.
I made the following orders:
1. In respect of the tendency notice date 2 December 2022, the plaintiff is permitted to adduce as tendency evidence, the evidence of Mr KN, Father KB, Mr GT, Mr KSC and Mr HC to establish the following tendencies:
1. that the second defendant had a predisposition towards engaging in flirtatious and sexually suggestive behaviour, directed towards other male persons;
2. that the second defendant engaged in such behaviour on his own initiative;
3. that the second defendant carried out such behaviour through risqué comments and suggestions progressing, when given opportunity, to physical touching; and
4. that such behaviour was conducted towards members of the Maronite Church or persons associated with the Church.
1. The above order is without prejudice to the defendants objecting to the evidence of the persons referred to in the order for reasons other than related to the question of tendency.
2. In respect of the tendency notice dated 7 December 2022, the plaintiff is not permitted to adduce as tendency evidence or any evidence purporting to support the allegation that the first defendant did not act upon complaints made by persons about sexual misconduct by the second defendant.
3. The preceding order is without prejudice to the plaintiff adducing evidence about the failure of the first defendant to act upon complaints regarding the conduct of the second defendant, provided such evidence is otherwise admissible.
[3]
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Decision last updated: 17 August 2023