When character, reputation and tendency evidence matter

The plaintiff, a then minor, brought proceedings in the NSW Supreme Court against her stepfather alleging that she was sexually and physically assaulted, resulting in the birth of a child. The defendant pleaded guilty to three offences of sexual assault in criminal proceedings. Her Honour accepted that there was tendency evidence for some of the alleged assaults but, even absent this evidence, Her Honour accepted that the assaults occurred. Damages were awarded in the amount of $853,550.

In Issue

• Whether the assaults the defendant admitted to should be allowed as tendency evidence to prove whether the disputed assaults occurred.
• Whether the assaults committed were calculated to cause physical, psychiatric or psychological harm as recognised in Wilkinson v Downtown.
• The application of a limitations defence for the sexual and physical assaults.

The background

The plaintiff alleged that on four occasions between 2000 and 2001, when the plaintiff was 15, the defendant sexually assaulted her. As a consequence of one of those assaults, the plaintiff became pregnant. She did not disclose the pregnancy to her mother until it was exposed in a medical examination. The plaintiff untruthfully told her mother that the pregnancy was the result of an encounter with a boy at a party. In August 2001, shortly before the plaintiff was due to give birth, the plaintiff’s mother discovered a diary which revealed that the defendant was the father of the unborn child.

The defendant was charged with and pleaded guilty to three offences – one offence of aggravated sexual assault and two offences of sexual intercourse with a child between 10 and 16 years of age. The defendant was sentenced to imprisonment for 7 years and 6 months.

In this case, the defendant did not dispute the assaults which occurred between 2000 and 2001 which were the subject of criminal proceedings.

The assaults in dispute related to allegations that the plaintiff was sexually assaulted on three other occasions and was physically assaulted on a further occasion in 2012. Those alleged assaults involved allegations that: in about 1995 or 1996, when the plaintiff was 10 or 11 years old, the defendant sexually assaulted her; in August 2001 (immediately before the birth of her child), the defendant sexually assaulted her; in 2001 (shortly after the birth of her son), the defendant sexually assaulted her; and in 2012, immediately before her departure from the family home, the defendant physically assaulted her.

The decision at trial

At trial Her Honour preferred the plaintiff’s evidence, as she gave evidence in a straight forward manner with appropriate concessions and no appearance of exaggeration. On the other hand, on occasions, the defendant was evasive and was reluctant to acknowledge even those assaults which he had pleaded guilty to.

Her Honour accepted that each of the three further sexual assaults and one further physical assault occurred, a conclusion which was reached based on an assessment of the evidence given by the parties and consideration of the limited additional evidence. In aid of proof of the allegations, the plaintiff proposed to rely on the three incidents of which the defendant admitted his guilt as tendency and coincidence evidence under ss97 and 98 respectively of the Evidence Act 1995 (NSW).The plaintiff essentially sought to prove that the defendant had a tendency to act or think in a particular way; proof of such a tendency is capable of being used as the foundation for an inference that the defendant conducted himself on the disputed occasions as alleged by the plaintiff. Her Honour held that the practical effect was to render admissible evidence of the character, reputation or conduct of a person, or a tendency that that person has, in order to prove that on a relevant occasion that person acted or thought in a particular way, provided that appropriate notice has been given and the evidence is assessed to have significant probative value. Her Honour observed that there were significant similarities between the sexual assaults to which the defendant pleaded guilty, and those the subject of dispute. Her Honour held that were it necessary to have recourse to the tendency evidence, she would conclude that its probative value was significant.

In terms of the alleged tort, Her Honour relied upon Wilkinson v Downton to find that the defendant’s actions were calculated and were intended to cause harm.

By s6A of the Limitations Act, no limitation period applies to causes of action based on child abuse. S50C of the Limitations Act relates to claims for physical assault. The onus of establishing a defence under the Limitations Act lies with the defendant. The defendant did not establish that by 2015, the plaintiff knew or ought to have known that any psychological or psychiatric injury caused by the 2012 physical assault was sufficiently serious to warrant bringing an action. Her Honour held that s50C is ill-suited to cases where cumulative injury, resulting in sequential acts, is alleged. The defence based on s50C failed.

The plaintiff was awarded $275,000 for general damages, $88,550 for interest, $40,000 for future medical expenses, $150,000 for past economic loss, $200,000 for future economic loss and $100,000 for exemplary damages, being a total award of $853,550. As regards general damages, the Court observed that the plaintiff was entitled to a substantial award having regard to factors such as the following:

1. From the age of 10 the plaintiff’s life had been deleteriously affected by the defendant’s wrongful conduct;
2. She had experienced serious psychological trauma, and been deprived of the normal incidents of adolescence and young adulthood. At a time when she could have expected to be enjoying an active social life with friends and gradually maturing, she had taken on the responsibility of caring for a young child and managed a household
3. Her education had been severely disrupted
4. The effects on her had been significant enough to cause her to self-harm on a number of occasions and to entertain suicidal thoughts
5. For many years she was deprived of the opportunity of pursuing a career and, until recently, had only had irregular employment. She was also dependent upon a sympathetic employer who released her from work when her psychological condition made that necessary
6. The amount awarded of $275,000 was made up of both compensatory damages and aggravated damages, it not being necessary to separate the two components.

Implications for you

This decision is a reminder of the factors that the Court will take into account when quantifying an award to a successful plaintiff in proceeding involving allegations of sexual assault. It is also a useful example of what role tendency evidence may play to establish whether there is a tendency in a defendant to conduct themselves in a way alleged in such cases.

Ms P v Mr D [2020] NSWSC 224