Peter A Clarke

The Victorian Court of Appeal in Leek v XY considered the standard of proof in a civil claim of assault. In this case the allegation was sexual assault by the defendant/appellant against the plaintiff/respondent. There seems to be a steady but thankfully small trickle of cases involving health professionals who have difficulty in keeping their interest in female patients professional.

REDLICH JA gave the substantive judgment.

On the standard of proof he said:

9 In civil litigation the standard of proof is proof on the balance of probabilities…The balance of probabilities remains the standard of proof even where serious or criminal allegations are made. The learned trial judge quoted the following passage from the joint judgment of Mason CJ, Brennan, Deane and Gaudron JJ in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. The strength of evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved. Thus authoritative statements have often been made to the effect that clear[5] or cogent[6] or strict[7] proof is necessary “where so serious a matter as fraud is to be found”.[8] Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct[9] and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.[10]

10 …..Generalisations about the need for ‘clear and cogent proof’ in cases involving competing and mutually inconsistent evidence should not be understood as affecting the civil standard of proof required.[11] Referring again to the joint judgment in Neat:

The most that can validly be said in such a case is that the trial judge should be conscious of the gravity of the allegations made on both sides when reaching his or her conclusion.[12]

11 The requirement of ‘clear or cogent proof’ described where criminal conduct or fraud is alleged relates to the strength of the evidence that is necessary to establish such a fact on the balance of probabilities… That is to say the nature of the issue affects the process by which reasonable satisfaction is attained… So where allegations of a serious sexual nature are made in civil proceedings, due regard must be given to the considerations mentioned in Briginshaw requiring the exercise of caution and careful scrutiny of the evidence proffered in proof of the allegation…
12 …. applied the civil standard while recognising that he was obliged to take into account, as an important factor, the improbability of a grossly improper sexual advance towards a vulnerable psychiatric patient by a well credentialed and experienced psychiatrist. …

In short the Court needs to put the plaintiff’s evidence under an atomic microscope and should let it be tested strongly before accepting it.

On the issue of prior consistent statements his Honour pithily summed up the law, as he is becoming very good at doing, thus:

23 It is settled law that a witness, whether a party or not, may not support their testimony by proof that on some prior occasion they made a statement to the same effect. There are two well recognised exceptions. The first, with which we are not presently concerned, is in the case of sexual offences where evidence of timely complaint is admissible, not as evidence of proof of the commission of the offence, but to rebut consent and negative the possibility that the charge is an afterthought. The second arises in any civil or criminal trial in which a suggestion of recent invention is made so that evidence of a prior consistent statement may be admitted to rebut the suggestion that the witnesses testimony is a recently fabricated story.

In the commercial and common law world in which I inhabit it is the second category that arises from time to time.

26 …it has sometimes been said that for a statement to rebut a suggestion of recent invention, it must have been made ‘shortly after the event in question’ so as to rebut the suggestion that the witness testimony was a ‘belated concoction’.[… Dixon CJ said in The Nominal Defendant v Clements..that the statement was admissible if it was made by the witness ‘contemporaneously with the event or at a time sufficiently early to be inconsistent with the suggestion that the account is a late invention or reconstruction. But contemporaneity of the statement with the event in dispute is not essential. Expressions such as ‘recent invention’ ‘belated concoction’ ‘afterthought’ or ‘recent fabrication’ all presuppose some point of time after which it is suggested the statement was made so that a statement made at an earlier date consistent with the evidence alleged to be concocted will rebut such an allegation. The adjective ‘recent’ has been viewed a misnomer as the doctrine applies to any fabrication alleged to have occurred subject to the events in question but anterior to the trial…. In my view a statement will be admissible whenever made so long as it pre-dates the event said to provide the motive for the recent invention or the time when the recent fabrication is alleged to have occurred – so that it logically rebuts that suggestion…

His Honour has loosened the cord somewhat in determining when the prior consistent statement can be made.  Pushing it from an almost contemporaneous statement as Dixon J stated to any time which pre dates the time when the motive for recent invention arises.  or that the recent fabrication occurred.  That can throw up some very interesting fact situations.  It will certainly make for interesting cross examination in the future.

What is the purpose of a prior consistent statement.  It is not evidence of the truth of the contents of the statement.  It all goes to credibility.  As Redlich stated:

30 …whether ..the content of the prior consistent statement as evidence of its truth. Such evidence is admitted to restore the witnesses credibility… Its effect is to rebut the claim that the witness belatedly fabricated their account of events. As with evidence of ‘recent complaint’ the evidence is admitted as evidence of consistency of account which re-establishes or bolster the credibility of the witness. Such a previous consistent statement, once admitted, reinforces the witnesses credit and may be used in that way in considering the weight to be attached to the witnesses sworn evidence…
31 A hearsay statement admitted to prove a fact other than the truth of its contents, does not upon its admission become evidence in the case… Thus in Hughes v National Trustees, Executors and Agency Co of Australasia Ltd[30] the High Court whilst upholding the admissibility of statements by a testatrix about her son’s misconduct which were tendered to prove her reason for excluding him from her will, held that the statements were not evidence of the alleged misconduct. Similarly, evidence of recent complaint made out of court, is admissible as an exception to the hearsay rule because of its consistency with the witnesses testimony or conduct, the evidence having itself no probative value as to any fact in contest.[31]

A very interesting case where the Court of Appeal went through the Appellants appal points and knocked them over like so many skittles.  The Judge at First Instances decision held up and Dr Leek continued to have a very bad day at the office.