Citation: Coat v Aves (Pseudonyms) [2023] NSWDC 560
Court: District Court of New South Wales
Date: 14 December 2023
Judge: Acting Judge Levy SC
Background
The plaintiff, a woman aged 25 at the time of the hearing, brought a civil damages claim against the defendant, her former stepfather, for alleged historical childhood sexual assault. The alleged abuse consisted of a single incident of unlawful sexual touching said to have occurred in early 2011, when the plaintiff was approximately 12 to 13 years old and the defendant was 59. The claimed conduct was framed as a contravention of s 61M(2) of the Crimes Act 1900 (NSW).
The parties' connection arose through the defendant's 13-year de facto relationship with the plaintiff's mother, a relationship that ended during the COVID period. The plaintiff first disclosed the alleged abuse to her then-boyfriend in mid-2019, with subsequent disclosures to her psychologist, sister, godmother, and mother occurring between late 2019 and mid-2020. The defendant denied the allegation throughout.
The plaintiff sought substantial common law damages, including aggravated and exemplary damages for psychological injury, totalling $762,810. The proceedings were heard over an extensive period and involved a large volume of oral, documentary, and expert evidence.
Legal Issues
- Whether the plaintiff established, on the civil standard of proof (informed by Briginshaw v Briginshaw), that the defendant committed the alleged act of unlawful sexual touching.
- Whether the plaintiff's evidence, and the corroborating evidence of witnesses to her disclosures, was credible and reliable.
- Whether the expert psychological and medico-legal evidence was admissible and reliable, and what weight it should receive.
- Whether the plaintiff's account of the alleged abuse was consistent and free from internal contradiction.
- Whether the plaintiff suffered a diagnosable psychological condition, including PTSD, caused by the alleged assault.
Decision
Acting Judge Levy SC found in favour of the defendant on all issues and determined that the alleged sexual assault never occurred. The plaintiff's claim failed on both primary liability and causation of damage.
On the central factual question, the court accepted the defendant's evidence and rejected the plaintiff's account. After a detailed assessment of credit across all witnesses, the plaintiff and her mother were found to be unreliable. The court identified numerous inconsistencies in the disclosure evidence, including varied accounts of how and when the plaintiff had entered the relevant room, and found the complaint evidence internally contradictory in material respects.
The court found that the plaintiff held a false memory of the alleged abuse rather than a fabricated account. This distinction was significant: the plaintiff was not found to have deliberately lied, but her belief in the occurrence of the assault was determined to be mistaken. The court considered the timing of the disclosures, which began approximately eight years after the alleged incident and during the period of family breakdown following the end of her mother's de facto relationship with the defendant.
The expert evidence presented in support of the plaintiff's case was subjected to close scrutiny. The court made adverse reliability findings in respect of the medico-legal expert, Dr Brown, concluding that elements of the expert's reasoning did not correspond with the evidence as a whole. In view of the nature of the credit findings, the court declined to undertake a counterfactual damages assessment, which would ordinarily occur in unsuccessful personal injury claims to preserve the position in the event of an appeal.
Orders Made
- Verdict and judgment for the defendant.
- The plaintiff is to pay the defendant's costs on the ordinary basis, unless a party establishes an entitlement to a different costs order.
- Exhibits may be returned.
- The non-publication order made on 18 September 2023 is to remain in place until further order of the Court.
- Liberty to apply for further or other orders if required.
Key Takeaways
- The District Court found that a civil claim for historical child sexual assault can fail where the court accepts the defendant's evidence and concludes the plaintiff's belief in the alleged abuse derives from a false memory rather than actual events.
- In dismissing the claim, the court applied the Briginshaw standard rigorously, conducting a granular assessment of consistency across the plaintiff's successive disclosures, the oral testimony of supporting witnesses, and the documentary record.
- Adverse reliability findings against a medico-legal expert can be decisive: the court's rejection of Dr Brown's evidence was founded on identified discrepancies between the expert's reasoning and the evidence actually before the court, consistent with the principles in HG v The Queen and Makita (Australia) Pty Ltd v Sprowles.
- Where credit findings are sufficiently adverse to the unsuccessful plaintiff, the court has discretion to decline the conventional counterfactual damages assessment, even in personal injury proceedings.
- Delayed disclosure, while not determinative, formed part of a broader factual matrix the court weighed carefully, taking into account the family circumstances surrounding when and to whom the allegations were first made.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 61M(2)
- Evidence Act 1995 (NSW), ss 55, 56, 60, 64, 66A, 108(3)(b), 128, 140
- Defamation Act 2005 (NSW), s 12A
- Family Law Act 1975 (Cth), s 121
- UCPR r 31.27(1)(c); Sch 7, cl 5(c)
Cases
- Briginshaw v Briginshaw (1938) 60 CLR 336
- HG v The Queen (1999) 197 CLR 414
- Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
- Pell v The Queen [2020] HCA 12
- Longman v R (1989) 168 CLR 79
- M v M (1988) 166 CLR 69
- Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
- Paric v John Holland Constructions Pty Ltd [1985] HCA 58
- R v XY (2010) 79 NSWLR 629
- Dare v Pulham (1982) 148 CLR 658
- Helton v Allen (1940) 63 CLR 691
- Naxakis v Western General Hospital (1999) 197 CLR 269