Clancy v Plaintiffs A, B, C and D; Bird v Plaintiffs A, B, C and D

[2022] NSWCA 119

NSW Court of Appeal

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Catchwords

1. Evidence
2. › Tendency evidence
3. › Civil proceedings
4. › Significant probative value
5. › Sexual assault against children
6. › Whether tendency evidence admissible where witnesses unable to be cross-examined
7. › Whether tendency evidence established to Briginshaw standard
8. › Evidence Act 1995 (NSW), s 97
1. Evidence
2. › Admissions
3. › Civil proceedings
4. › Admissions against co-defendant
5. › Common purpose
6. › Whether admissions made in police interview admissible against co-defendant under s 87(1)(c)
7. › Whether common purpose must exist at time admissions made
8. › Evidence Act 1995 (NSW), s 87(1)(c)
1. Evidence
2. › Hearsay
3. › Exceptions
4. › Witness unavailable
5. › Whether reasonable steps taken to secure attendance
6. › Whether issue and service of subpoena encompassed by cl 4(1)(f)
7. › Whether determination of unavailability involves exercise of discretion
8. › Evidence Act 1995 (NSW), s 63, Dictionary pt 2 cl 4(1)(f)
1. Evidence
2. › Standard of proof
3. › Civil cases
4. › Briginshaw principles
5. › Sexual assault allegations against children
6. › Whether disclosures established to requisite standard
7. › Evidence Act 1995 (NSW), s 140(2)

Quick Take

Longhurst v Hunt's proposition that witness unavailability under cl 4(1)(f) of the Evidence Act Dictionary involves a discretion has been disapproved; the determination is an evaluative application of a test, not a discretionary decision. Child sexual assault civil claims are subject to a rigorous approach to tendency evidence and the Briginshaw standard, particularly where witnesses cannot be cross-examined.