Circumstantial evidence is still evidence

By Paul Baxter, Catherine Blair, Hannah Peddie and Kelsey Fieldus

In the latest High Court decision GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore, circumstantial evidence is still evidence in the ‘new normative structure’ created by section 6A of the Limitation Act.

By a three/two majority, the High Court has ruled the NSW Court of Appeal was wrong to grant a permanent stay of the proceedings to The Trustees of the Roman Catholic Church for the Diocese of Lismore, the Respondent.

The decision revolves around the Appellant’s allegation that she was sexually abused by Father Anderson (Anderson) in her home on one occasion in 1968. The NSW Court of Appeal overturned a first instance decision to grant a permanent stay of the proceedings to the Diocese on grounds that the death of Anderson in 1996 meant that the Diocese was at a significant disadvantage without any account from Anderson and was effectively ‘utterly in the dark’ in circumstances where there were just two witnesses to the alleged abuse.

However, in the highly anticipated decision by the High Court, the majority (Keifel CJ, Gageler and Jago JJ) said the Courts must operate within a ‘new normative structure’ that permits claims for damages arising from child abuse to be brought at any time. The majority said that, by enacting section 6A of the Limitation Act, Parliament had ultimately ensured the effluxion of time and ‘impoverishment of evidence’ can no longer be considered exceptional reasons to warrant a permanent stay for a child abuse claim.

In any event, the High Court majority said that the Diocese was not ‘utterly in the dark’ about the central issue as to whether Anderson sexually assaulted GLJ. The majority firmly stated: ‘Circumstantial evidence is still evidence’. Their Honours noted that the Diocese had access to records relating to the alleged abuse by Anderson of young boys prior to the alleged abuse of GLJ and his laicisation.

From there, the majority judgment gave six reasons as to why the loss of opportunity to put the allegations to Anderson does not make a trial unfair:

1. Anderson was not a defendant and so it was ‘untenable’ for the Diocese to assert they might have ‘taken instructions’ from him if he was still alive. Instead, the Diocese had lost the opportunity to make forensic decisions about his evidence, the importance of which was ‘wholly speculative’.
2. Anderson had denied under oath in 1971 any romantic interest in girls. Accordingly, it can be inferred that he would have denied GLJ’s allegations.
3. The available documentary evidence infers that other allegations of sexual abuse of boys had been put to Anderson and that he had denied wrongdoing.
4. The Diocese had ‘ample opportunity’ to inform itself of the extent of Anderson’s crimes and the potential harm to other children after it became aware he sexually abused boys before GLJ.
5. The Diocese had already shown that it was satisfied allegations of abuse by Anderson could be substantiated and such claims should be the subject of monetary compensation.
6. There was already a ‘considerable body of documentary evidence of arguable relevance to the proceedings’.

The majority judgment attempted to offer reassurance to the Diocese, by saying the trial judge would not be bound to accept uncontradicted evidence by GLJ if the evidence were ‘too vague or internally inconsistent or otherwise unconvincing to enable a positive inference to be drawn that it is more likely than not that Father Anderson sexually assaulted GLJ as claimed when she was 14 years old.’ They also pointed out that a civil trial still requires a plaintiff to prove their case ‘on the balance of probabilities’ and that the degree of satisfaction for the civil standard of proof may vary according to the gravity of the fact that is sought to be proved. Citing Dixon CJ in Jones v Dunkel [(1959) 101 CLR 298, 305], the majority’s joint decision displayed confidence that judges in lower courts would not blindly ‘choose between guesses’ but ensure that the ‘facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied.’

The majority position was strongly opposed by dissenting judges Steward and Gleeson JJ. Gleeson J did not share the majority’s view that the rules of procedure and evidence would be sufficient to overcome the disadvantage faced by the Diocese and said that it would be ‘manifestly unfair to require the Diocese to respond to the Appellant’s uncorroborated claim without any realistic opportunity of informing itself as to the true facts concerning the alleged sexual assault’. Steward J called the ‘new normative structure’ approach by the majority a distortion of the law and a ‘dilution of standards’, which is ‘unsupported by authority or principle and sanctions trials which are unfair.’

There is little satisfaction in a divided judgment of this kind. Although it should not be surprising when, in all simplicity, the judgment reflects the divisiveness in society on the issues in contention. In practice, the judgment will put more pressure on trial judges to give close consideration in relation to admissibility of evidence and on defendants to ensure extremely thorough investigations are conducted as early as possible.

There are further appeals from numerous jurisdictions currently awaiting consideration by the High Court in relation to the permanent stay of proceedings, where there is less circumstantial evidence to remove the defendant from being considered completely in the dark as to the allegations made. Although this decision fundamentally shifts key principles for stay applications, until the further appeals are heard debate will continue as to the scope of this decision.