When is tendency evidence admissible in alleged abuse cases?

27 August 2021
Warning: This article contains details about sexual assault and abuse which may be upsetting for some readers. Reader discretion is advised.

A ruling on the admissibility of tendency evidence from victims of sexual abuse who gave evidence at a criminal trial.

In Issue

  • The decision involved a determination as to the admissibility of tendency evidence from nine witnesses who gave evidence in a criminal proceeding against an alleged perpetrator of historical sexual abuse.
  • The plaintiff sought the admissibility of the tendency evidence under section 97 of the Evidence Act 2008 (Vic) (Act).

The background

This case was brought by DP (a pseudonym) against the Diocese of Ballarat. The plaintiff alleged that in 1971, when he was five or six years old, he was sexually assaulted by a Catholic priest (the alleged perpetrator) at his parents’ home.

The alleged perpetrator died in 2014. The plaintiff sought to adduce evidence of individuals who gave evidence in a previous criminal proceeding against the alleged perpetrator i.e on the basis that it was admissible as tendency evidence demonstrating a common feature; being the alleged perpetrator’s sexual interest in young Catholic schoolboys while he was a priest, which he acted upon to commit sexual assaults.

Two of the nine tendency witnesses were deceased, and their statements were to be tendered at trial under 63 of the Act. The other seven witnesses would give viva voce evidence at the trial, subject to the court’s determination of this application.

The Diocese opposed the admission of the tendency evidence on the basis that the requirements of section 97 of the Act were not satisfied or, if the requirements were satisfied, the evidence of all of the witnesses should be excluded under section 135 of the Act. In the alternative, the Diocese argued that His Honour should make a limited use direction pursuant to section 136 of the Act or give leave to adduce the evidence on the terms under section 192 of the Act.

The primary basis for the Diocese’s submission was that the delay between the occurrence of the alleged event in 1971, and the first notification by the plaintiff in 2019, was so significant that it was almost completely precluded from making enquiries and investigating the reliability or veracity of the nine tendency witnesses.

The decision at trial

His Honour commented that the Diocese did not lead any evidence as to specific prejudice occasioned by the delay, and that the Diocese had been on notice since the mid to late 1990s about the alleged perpetrator’s conduct towards young boys which would have enabled it to investigate those alleged activities. This case was therefore distinguished from another similar case.

His Honour was therefore not persuaded by the Diocese’s submissions, and found that the plaintiff had satisfied the requirements of section 97 of the Act i.e. that: (1) the tendency and the facts in issue which it is said to prove must be identified; (2) the tendency evidence must be capable of sustaining the conclusion that the relevant person had an identified tendency to act in a particular way and/or have a particular state of mind; (3) the tendency must be one of some specificity and not at a high level of generality (the features of the tendency evidence must link that evidence with the allegations in the proceeding; (4) it is necessary to establish that the tendency evidence is of significant probative value such that the evidence increases the likelihood of the asserted conduct of the relevant person as alleged to such an extent that it is of significant probative value; (5) the common law test for propensity is to be ignored; (6) if the tendency evidence is shown to have significant probative value, this must not be substantially outweighed by the danger that the evidence might either be unfairly prejudicial to a party, be misleading or confusing or cause undue waste of time in the proceeding, such that the court is persuaded to exercise its discretion to exclude the evidence irrespective of its admissibility.

His Honour found that the tendency evidence (1) demonstrated the alleged perpetrator’s sexual interest in young Catholic boys whilst serving as a priest in the Western District of Victoria and (2) the alleged perpetrator’s conduct in acting on that desire by physically interacting with, to the point of assaulting, young Catholic boys in the Western District.

His Honour was satisfied that these two common threads established the necessary specific tendency, and were relevant to the determination of whether the assault upon the plaintiff occurred and that the evidence of the nine tendency witnesses was admissible without limitations.

Implications for you

This decision shows the Court’s willingness to allow tendency evidence in a case where specific tendency relating to historical sexual abuse alleged against a deceased offender is established that is relevant to the determination of whether the alleged abuse in the civil proceeding occurred.

Updated 2 May 2023: On 3 April 2023, the Victorian Court of Appeal dismissed an appeal against the lower court findings on vicarious liability, and also a cross appeal on damages.

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