Trigger Warning: This case note contains references to subject matter and material that may be traumatising and/or upsetting for survivors of sexual assault, as well as their families. Reader discretion is advised.
In this recent case, the NSW Supreme Court permitted the plaintiff to obtain records from the defendant relating to all statements from persons under the age of 18 claiming that they had been the victim of sexualised abuse and/or sexualised behaviours perpetrated by Mr Cable – and ordered that the defendant must answer this request and provide all relevant documents.
Mr Peters alleged that he was sexually assaulted on at least 10 occasions by his teacher, Mr Cable, between 1969-70, when he was enrolled in a school operated by the Trustees of the Marist Brothers. The plaintiff further alleged that Mr Cable committed multiple sexual offences against other students at this school, occurring no later than 1960.
This civil claim was brought against the Trustees of Marist Brothers, to hold them responsible for their actions of their employee, Mr Cable. However, the defendant did not admit that Mr Cable had ever sexually assaulted the plaintiff during 1969-70 and, while the defendant did admit they had heard complaints from other former students – that they had experienced sexual abuse at the hands of Mr Cable – they stated that they did not become aware of these complaints until 1971.
The defendant’s position was that it was not aware that Mr Cable was acting in a sexually abusive and/or sexually inappropriate way to their students. This raises an important issue for the plaintiff: how could the defendant be held responsible for Mr Cable’s actions if there was no evidence to suggest that they had breached their duty of care towards the plaintiff?
To remedy this, the plaintiff applied for the Court’s leave to issue a subpoena to the defendant.
While the subpoena was originally very wide in terms of the documents requested, the plaintiff narrowed the scope to all statements from persons under the age of 18 who had claimed that they had been the victim of sexualised abuse and/or sexualised behaviours at the hands of Mr Cable. If the subpoena was permitted by the Court, this would require the defendant to produce all relevant statements – the issue being that if any statements were made and received before 1971, this would contradict the defendant’s assertion that they had not received any such complaints prior to 1971. The defendant resisted this subpoena and submitted that these documents were irrelevant – and that to allow this subpoena would be an abuse of process.
Section 97 of the Evidence Act 1995 restricts the use of tendency evidence – essentially, evidence that an individual may tend to act in a particular way or hold a certain state of mind – unless this evidence has significant “probative value”. The restriction on tendency evidence applies to limit the weight given to evidence of prior sexual offences. Although compelling, a history of offending does not automatically mean that the plaintiff can prove the specific sexual offence alleged by the plaintiff against the defendant, or that the defendant school in this case was on notice of a history of offending prior to 1971.
Her Honour, Button J, ultimately allowed the subpoena provided that the plaintiff narrowed the scope of documents to be obtained. Her Honour considered that the evidence requested was directly relevant to the fact in issue: as to whether Mr Cable did sexually assault Mr Peters when he was a schoolboy. Her Honour noted that this matter was different to a similar case against the Trustees of the Marist Brothers concerning child sexual abuse, as the requested documents were much less broad and were relevant to the denials made by the defendant.
This is a positive step forward for plaintiffs in civil cases involving child sexual abuse, as it widens the scope of documents that can be requested from a defendant and could make it easier for plaintiffs to satisfy the burden of proof (‘on the balance of probabilities’) and to obtain fair compensation.
If you or anyone you know has been affected by institutional child sexual abuse, we encourage you to explore your potential entitlement to compensation and welcome you to contact us for an obligation-free initial consultation.
