Jennings v Wilden [2023] NSWCA 41 (on Caselaw).
With thanks to Ada Lim for noting this matter.
The headnote to the decision set out a summary as follows. Ms Kirra Wilden commenced proceedings against her former husband, Mr Michael Jennings, in the District Court in February 2020. Ms Wilden alleged that she had suffered injury as a result of four incidents of rape in 2014 and 2015 at the hands of Mr Jennings.
The first incident occurred on 12 October 2014, when Mr Jennings arrived home in the early hours of the morning, smelling of alcohol and cigarettes. Ms Wilden said he forced her to engage in sexual intercourse without her consent. The second incident was alleged to have occurred in late 2014 under similar circumstances where Ms Wilden was again forced by the appellant to engage in sexual intercourse without consent. These incidents occurred in their home at Kensington. The third and fourth incidents occurred in 2015, again under the circumstances of Mr Jennings returning home late and smelling of alcohol and cigarettes. He against forced her to engage in sexual intercourse without consent. The third and fourth incidents occurred in their home at Bella Vista.
The took place between May and August, 2021. The trial judge, Wilson SC DCJ, accepted the plaintiff’s claims, handing down judgment on 21 December 2021. She was awarded just under $500,000 in damages, including $100,000 for future economic loss.
The Court of Appeal did not accept that the trial judge had reversed the onus of proof. As stated in the headnote, the trial judge found that the plaintiff was a careful and reliable historian who gave evidence with clarity. Having regard to the evidence given by the plaintiff about the text messages, the judge found her entirely persuasive and that her account was neither “glaringly improbable” nor “inherently unlikely”: [25]–[27]. This language followed acceptance of the plaintiff’s evidence as demonstrating consistency, reliability, and honesty. There was no reversal of the onus of proof, but a careful assessment of the plaintiff’s evidence against a range of tests, including consideration of the possibility that it might inherently be so improbable as not to warrant acceptance: [28].
In relation to the future economic loss award for damages, it was not demonstrated that the amount awarded by the trial judge for future economic loss was excessive in the sense that it was beyond the range which could reasonably be considered, having regard to the fact that Ms Wilden had an expectation of 37 years of employment and an unchallenged finding of PTSD. The judge did not err either in his understanding of the facts or of the relevant legal principles: [43].
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