Abuse Victim Successful On Appeal

Warning: This article contains details about sexual assault which may be upsetting for some readers. Reader discretion is advised.

Abuse victim had primary decision against the alleged offender overturned on appeal on the basis that certificates of convictions held significant probative value in this case and that the trial judge had erred in interpreting NSW evidence legislation.

However, her appeal against the wife of the alleged offender and the State was dismissed.

In issue

• The New South Wales Court of Appeal considered the admissibility of prior certificates of conviction against an offender in the context of a civil abuse case against the State of NSW, in circumstances where the plaintiff had not tendered the certificates at trial under the relevant provisions of the Evidence Act 1995 (NSW) to prove the commission of the offences.

The background

This case involved an abuse victim who initially brought proceedings against her former foster carers Mr and Mrs C and the State of NSW (State) for breach of their duty of care owed to her. She claimed whilst she was placed into foster care by the State with the C's between 1979 and 1980, she was subjected to significant sexual assaults involving two rapes and three indecent assaults.

Mr C was ultimately convicted of these offences including additional offences against another foster child within his care in 2019. Mr C appealed the convictions; however, he passed away in 2022. The case against him was brought against his estate.

The decision at trial

The trial judge in the primary proceeding dismissed the plaintiff's claims and ultimately found on the evidence that her allegations were unproven, namely that the abuse had not occurred. The trial judge in his reasoning placed no weight on the convictions in part due to the fact the plaintiff, who was a self-represented litigant for the majority of the proceeding, had not formally tendered the conviction certificates to be considered by the Court.

The plaintiff appealed the primary decision on the grounds that the conviction certificates were in fact admissible in civil proceedings, not just as evidence of the conviction itself, but also as evidence that the abuse/offence had in fact occurred.

Court of Appeal decision

On review, the New South Wales Court of Appeal (Court of Appeal) ultimately found that the trial judge had in fact erred in his interpretation of the Evidence Act 1995 (NSW), insofar as it applied to the conviction certifications. Relevantly, the Court of Appeal considered the trial judge's failure to appreciate the admissibility of the conviction certificates compromised his assessment of the appellant's credibility, which in turn became the basis for his finding that the allegations were unfounded.

The Court of Appeal stated that had the conviction certificates been properly admitted in the first instance, there would have been sufficient evidence to establish the appellant's allegations of abuse, absent any other probative evidence from the estate to the contrary. Accordingly, it would have meant that liability would have been established against Mr C's estate.

The appeal was then granted in respect of the estate only with a judgment awarded to the appellant in the amount of $1,346,000 (inclusive of aggravated damages).

The Court of Appeal maintained the primary decision against Mrs C and the State, ultimately concluding the following:

• In respect of the State, the Court of Appeal found that none of the placements, adoption and/or re-unification decisions made by it met the threshold of being so unreasonable that no authority could have acted in a similar fashion, and
• in respect of Mrs C, the Court of Appeal found there to be no evidence that she knew of the abuse at the time, nor was there any duty obliging her to act on any of the allegations once the appellant had been removed from her care.

Implications for you

This case is a good example of the complexity arising in historical abuse cases regarding the admissibility of evidence at trial.

Additionally, this case shows that the usual actions taken by the State may not meet the relevant threshold of being so unreasonable to constitute a breach of the State's obligations to a plaintiff who has suffered childhood abuse whilst under the State's care. It further supports the position that foster carers appointed by the State are not in an employment relationship with the State, and therefore the State is not vicariously liable for any wrongful acts perpetrated by foster carers.