Davey v Want [2026] NSWCA 12 (Link to Caselaw).
Copied below is the court headnote.
Headnote
The appellant appealed against the primary judge’s dismissal of her claim that the respondent sexually abused her on two occasions in the early 1970s, when she was aged between five and seven and he was 17 or 18. The first incident of alleged abuse was said to involve the respondent placing his hands in the appellant’s underwear and fondling her vagina when she was sitting on his lap riding a tractor at a property referred to as Lot 23. The second incident was said to involve broadly the same conduct but whilst the appellant was sitting on the respondent’s lap at a family gathering. The respondent denied that he had ever sexually or otherwise assaulted the appellant.
The key issues before the Court were:
(i) whether the primary judge failed properly to apply the standard of proof and reached an erroneous conclusion;
(ii) whether the primary judge erred in his treatment of the evidence of the appellant and of two of her cousins, Janet and Pamela Skinner;
(iii) whether the primary judge made a number of erroneous factual findings and provided inadequate reasons for those findings; and
(iv) whether the primary judge erred in finding that the respondent had not deliberately sought to create a false impression and gave inadequate reasons for so finding.
The Court (Stern JA, Bell CJ and Griffiths AJA agreeing) held, dismissing the appeal:
As to issue (i)
(1) The primary judge did not err in his approach to the onus and burden of proof. His Honour also did not erroneously rely on a “Longman warning”. His reference to that case was only to keep firmly in mind that the delay had caused significant forensic disadvantage to the respondent: [1] (Bell CJ); [76]-[82] (Stern JA); [130] (Griffiths AJA).
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, Wilmot v Queensland [2024] HCA 42; 98 ALJR 1407, applied; Longman v The Queen (1989) 168 CLR 79, referred to; Lim v Lim [2023] NSWCA 84, considered.
As to issue (ii)
(2) The primary judge did not fail to take into account aspects of the appellant’s post-abuse behaviour. His Honour referred to the appellant’s memory of the events in question, to the joint report of the psychiatrists instructed by the parties, and to the clinical records of Ms Bray, the appellant’s treating psychologist. In these circumstances his Honour did not err in not separately referring to the appellant’s own account of these matters: [1] (Bell CJ); [84]-[90] (Stern JA); [130] (Griffiths AJA).
(3) The primary judge did not err in failing to consider Janet Skinner’s evidence. The weight to be given to that evidence was a matter for his Honour: [1] (Bell CJ); [91]-[94] (Stern JA); [130] (Griffiths AJA).
(4) The primary judge did not err in his treatment of Pamela Skinner’s evidence. His Honour found that the appellant said something to Pamela Skinner that reflected badly on the respondent and that this was relevant to the appellant’s allegations. The primary judge did not err in his characterisation of this evidence, having regard to inconsistencies between it and the appellant’s evidence. The weight to be given to it was a matter for his Honour: [1] (Bell CJ); [95]-[98] (Stern JA); [130] (Griffiths AJA).
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, applied.
As to issue (iii)
(5) The primary judge did not err in finding that it was unlikely that as a young child the appellant would be concerned that reporting abuse by the respondent may lead to the loss of her family’s accommodation. This was a matter for his Honour, having seen the appellant give evidence and having regard to the evidence as a whole. His Honour was entitled to have regard to inherent probabilities in assessing the reliability of her evidence. The primary judge explained the basis for his finding, with no inadequacy in those reasons: [1] (Bell CJ); [99]-[105] (Stern JA); [130] (Griffiths AJA).
(6) The primary judge did not err in finding that the clinical records of Ms Bray suggested confusion in the appellant’s memory. His Honour recognised that the references in Ms Bray’s records to abuse by or charges against a family member could either be referable to such confusion, or to Ms Bray erring in her note-taking and recollection. His Honour’s approach is what is required of a judge weighing all the evidence in the balance and assessing whether the allegations had been established to the requisite standard: [1] (Bell CJ); [106]-[112] (Stern JA); [130] (Griffiths AJA).
(7) The primary judge did not err in finding that the appellant’s memory was inaccurate as to the purpose and location of the family gathering where she alleged that the second incident of abuse by the respondent occurred and that this cast doubt upon the accuracy or reliability of her memory of that alleged incident of abuse. The inaccuracies his Honour identified in the evidence necessarily undermined the reliability of the appellant’s recollection. The primary judge’s finding was based upon his assessment of the evidence as a whole, and his Honour had clear advantages over this Court in this regard: [1] (Bell CJ); [113]-[116] (Stern JA); [130] (Griffiths AJA).
As to issue (iv)
(8) The primary judge did not err in his treatment of the respondent’s evidence and, in particular, in not finding that the respondent had deliberately sought to discredit the appellant and that this displayed a consciousness of guilt. Whilst the primary judge had characterised the respondent’s evidence in a way that was unduly unfavourable to the respondent, even on that characterisation, there was no error in finding that the respondent’s evidence should not be held against him in the manner contended for by the appellant. The significance to attach to such matters was very much a matter for his Honour: [1] (Bell CJ); [55]-[56], [117]-[127] (Stern JA); [130] (Griffiths AJA).
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