A case study in evidentiary challenges for historic abuse matters

In issue

The central question before the Court was whether the alleged sexual abuse by the plaintiff at a Juvenile Justice Centre occurred. This required consideration of whether the State of New South Wales owed and breached a duty of care to protect the plaintiff from such abuse and whether liability could arise through negligence, a non-delegable duty, or vicarious liability.

A key issue was the credibility of the plaintiff’s evidence in light of inconsistencies in his account, the significant delay in reporting, and his intellectual disability. The Court also examined whether contextual factors supported or undermined the plausibility of the alleged events.

The background

The plaintiff was detained at the Juvenile Justice Centre between November 1996 and January 1997 following convictions for serious offences. At the time, he was 16 years old and serving a custodial sentence in a highly structured environment with strict supervision protocols.

The plaintiff alleged that during this detention, he was sexually abused by an unidentified staff member in two ways: first, through a 'Bingo' shower game in which detainees and the staff member allegedly masturbated in view of each other, and second, through two separate one-on-one incidents in a side room involving masturbation and fellatio. He claimed the abuse occurred in the gym shower area and a room containing bathtubs.

The plaintiff sought damages for psychiatric injury and psychological sequelae, pleading negligence, breach of a non-delegable duty of care, and vicarious liability against the State of New South Wales.

The decision

The Supreme Court of New South Wales (Lerace J) dismissed the plaintiff’s claim against the State of New South Wales for alleged sexual abuse during his detention at the Juvenile Justice Centre between November 1996 and January 1997. The central question was whether the plaintiff could prove, on the balance of probabilities, that the abuse occurred. While acknowledging the challenges of historical abuse claims (such as memory fallibility and the removal of limitation periods) the Court stressed that credibility and contextual consistency were decisive.

Key Considerations:

1. Identity of the alleged perpetrator: The plaintiff could not identify the staff member by name, providing only a general description: a Caucasian male of medium build with short brown hair, usually wearing casual clothes. He claimed the staff member worked 'in or around the gym section and in different units' and had previously offered him cigarettes. The Court noted this lack of identification was significant. Without names, dates, or corroborating evidence, it was impossible to cross-check rosters or confirm who might have been present in the gym during the alleged incidents. This contributed to the overall lack of proof.
2. Existence and Use of Facilities: The plaintiff alleged the abuse occurred in the gym shower area and a side room with a bathtub. The Court examined historical plans of the gym (1959 and 1980) and heard evidence from nine former staff members and two supporting witnesses. While plans confirmed shower cubicles existed, credible witnesses testified they were locked and unused. No evidence supported the existence of bathtubs. Muster records showed detainees followed strict routines and showered only in their units, undermining the plaintiff’s claim that gym showers were used after sport.
3. Credibility of the Plaintiff’s Account: The Court scrutinised inconsistencies in the plaintiff’s evidence, including conflicting descriptions of the gym layout, number of rooms, and timing of events (afternoon vs. after dinner). His claim that he suppressed the memory for 18 years yet remained angry was also problematic. Psychiatric experts agreed his intellectual disability and memory deficits could affect detail but did not suggest fabrication.
4. Corroboration and Contextual Improbabilities: No contemporaneous complaint or supporting witness testimony was available. The alleged 'Bingo' masturbation game was unknown to all staff witnesses, and the Court found it highly improbable that such conduct could occur in a supervised environment without detection. Strict supervision protocols, including the 'two-person rule', and the open nature of the institution made unsupervised abuse unlikely.
5. Expert Evidence on Memory: The Court considered expert psychiatric evidence on trauma-related memory issues and intellectual disability. While acknowledging memory gaps and inconsistencies are common in historical abuse cases, the Court concluded these factors did not overcome the objective improbabilities in the plaintiff’s account.

The Court ultimately held that the plaintiff failed to discharge the onus of proof. Neither the alleged group abuse nor the one-on-one incidents were established. The amended statement of claim was dismissed.

Implications for you

This decision reinforces the significant evidentiary burden plaintiffs face in historical abuse claims, even where limitation periods have been removed. It highlights the importance of scrutinising contextual evidence to challenge the plausibility of allegations.

The decision also underscores that credibility assessments will weigh inconsistencies, delay in reporting, and memory issues against objective improbabilities. Institutions should maintain detailed historical records and policies, as these can be decisive in defending claims. Finally, the case illustrates that courts will not infer liability solely from the passage of time or trauma-related memory gaps and robust factual analysis remains critical.