When honesty isn't enough: why courts require more than sincerity in institutional abuse cases

This case concerned the treatment of evidence and the correct standard of proof in a civil case of sexual abuse.

In issue

Whether the primary judge:

1. failed to correctly apply the civil standard of proof,
2. erred in assessing the evidence of the appellant and her two cousins,
3. made a number of erroneous factual findings and/or provided inadequate reasons for those findings, and
4. erred in declining to make an adverse credibility finding against the respondent.

The background

The appellant appealed to the primary judge's dismissal of her claim. The appellant alleged that, as a young child, she was sexually abused by the respondent, then aged 17 or 18, on two occasions in the early 1970s.

The respondent denied all allegations of sexual or other assault and maintained this denial in his oral evidence at trial.

The primary judge's decision

The primary judge found the appellant was a truthful witness who genuinely believed her memories of the alleged abuse. However, the primary judge concluded that her evidence was not sufficiently reliable to satisfy the civil standard of proof (i.e. the Briginshaw standard¹). In reaching this conclusion, the primary judge identified inaccuracies in the appellant's recollection, implausible explanations for not reporting the abuse, and inconsistencies in her clinical records.

The primary judge considered the respondent to be an honest witness who consistently denied the allegations. Although part of the respondent's evidence created a misleading impression, the primary judge accepted that this was not deliberate and placed some weight on the respondent's lack of history concerning any evidence of inappropriate behaviour or rumours of misconduct within his family.

Weighing the significant forensic disadvantages caused by the passage of time, including faded memories and the loss of potential witnesses, the primary judge was not sufficiently satisfied that the appellant's alleged abuse occurred, leading to the dismissal of the claim.

The decision on appeal

The appellant challenged the New South Wales Supreme Court's findings on 11 grounds.

Grounds 1-3: the appellant argued that the primary judge misapplied the proper standard of proof. The Court of Appeal rejected this argument, holding that the primary judge correctly applied Briginshaw principles and was entitled to refer to M v M² and Longman v The Queen³ to highlight the fallibility of memory, the difficulty in refuting historic sexual assault allegations and the need for careful scrutiny of uncorroborated evidence after significant time has passed.

Grounds 4-6: the appellant argued that the primary judge failed to consider all relevant evidence. The Court of Appeal disagreed, noting the primary judge had considered the appellant's vivid memories, the joint psychiatric reports and the appellant's clinical records. The Court held that there was no error in the treatment of the appellant's lay witness evidence which was vague, lacked specificity and was inconsistent with the appellant's account.

Grounds 7-9: The appellant argued that the primary judge erred in rejecting her explanation for not reporting the abuse, in failing to assign appropriate weight to the appellant's clinical records and in treating inaccuracies of her account of some aspects of the alleged abuse as undermining her reliability as a witness. The Court of Appeal found no error. It held that the primary judge's findings were open on the evidence, as the appellant's evidence lacked corroboration, the appellant's psychological treatment notes contained inconsistencies suggesting possible memory confusion and inaccuracies in the appellant's account of relevant circumstances associated with the alleged abuse undermined confidence in the reliability of her memories of the alleged abuse.

Grounds 10-11: the appellant argued that the primary judge erred in not making an adverse credibility finding against the respondent, claiming his evidence displayed a consciousness of guilt. The Court of Appeal rejected these arguments. It accepted that the respondent denied deliberately misleading the Court. Although the primary judge's characterisation of one aspect of the respondent's evidence was somewhat unfavourable, it did not warrant an adverse credibility finding nor support the appellant's allegations.

Implications for you

The decision highlights the high evidentiary burden that plaintiffs in institutional abuse matters must overcome to succeed with their action. Indeed, whilst the Court found both parties to be honest witnesses attempting to recall events through the 'haze of distant memories,' the appellant's evidence was ultimately insufficient to satisfy the tribunal of fact to the requisite Briginshaw standard, thus resulting in the dismissal of her proceeding (which was upheld on appeal).

Additionally, the case underscores the Court's acceptance that significant delays in bringing civil claims for historical abuse matters create a real forensic disadvantage due to deceased or unreachable witnesses, faded or reshaped memories and a lack of contemporaneous evidence. In this regard, the Court of Appeal reaffirmed that such disadvantages must be kept firmly in mind when weighing the evidence, as they can materially affect a defendant's ability to meet the case and may ultimately prevent a plaintiff from establishing their claim to the requisite level of satisfaction required by law.

Footnotes:

¹ Briginshaw v Briginshaw (1938) 60 CLR 336.

² M v M (1988) 166 CLR 69.

³ Longman v R (1989) 168 CLR 79.

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