Leeks v X Y

(2008) 21 VR 118; [2008] VSCA 21

Victorian Court of Appeal

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Interrogate

Catchwords

1. Damages
2. › Assault
3. › Sexual assault by medical practitioner on patient
4. › Standard of proof
5. › Whether burden of proof discharged
6. › Briginshaw standard applied to serious allegations in civil proceedings
1. Evidence
2. › Prior consistent statements
3. › Rebuttal of suggestion of recent invention
4. › Whether suggestion of recent invention made
5. › Whether contemporaneity of statement with event required
6. › Whether content of statement misused as evidence of truth of its contents
1. Appeal
2. › Review of evidence
3. › Credibility findings of trial judge
4. › Whether specific evidentiary issues or evidence as a whole provided compelling reason to overturn findings
5. › Glaringly improbable or contrary to compelling inferences test

Quick Take

A prior consistent statement admitted to rebut a suggestion of recent invention need not be contemporaneous with the event in dispute; it is 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 fabrication is alleged to have occurred. A trial judge may reach a state of conviction as to the truthfulness of one party's allegations through cross-examination, and that conviction may in turn undermine the credibility of the opposing party on the facts in issue, without the need to independently discredit the opposing party first.