Barry Cable – Similar fact evidence

On 16 June 2023 Justice Herron of the District Court of WA handed down his decision on the high profile Barry Cable (‘Cable’) historical child sexual abuse case.

In the matter of ZYX (pseudonym initials) v Cable [No. 5][2023] WADC 61 Justice Herron found that Cable did sexually abuse the plaintiff in the late 60’s/early 70’s when she was a young girl.

The Plaintiff was awarded over $800,000 in damages.

A key issue discussed in the case was similar fact evidence and when to adduce them in civil proceedings.

There were a number of witnesses who gave evidence in the trial who were also victims of Cable some 20 years after the plaintiff was sexually abused by Cable.

In WA, similar fact evidence (propensity or relationships evidence) is only admissible in criminal proceedings in WA. Section 31A of the Evidence Act 1906 (WA) does not apply to civil proceedings.

Justice Herron therefore referred to common law principles governing admissibility of similar fact evidence in civil proceedings.

The fact in issue was whether the defendant sexually assaulted the plaintiff on multiple occasions when she was a child in the late 60’s and early 70’s.

The further question was whether the occurrence of other acts of sexual assault by Cable against other girls when they were children on other occasions in the early 80’s and then another female child in the 90’s, makes the occurrence of sexual assaults against the plaintiff, occurring many years earlier, more likely.

The plaintiff argued because Cable more than 20 years after she says he sexually abused her, had a sexual interest in young girls upon which he was prepared to act, that made it more likely he sexually abused her because the sexual interest was longstanding and already existed at the time he came into contact with the plaintiff.

Justice Herron considered that “the more remote in time the alleged propensity or tendency exists, the more difficult it is to maintain that the defendant would have acted in a similar way many years previously so that it makes it more likely he did the physical acts of sexual abuse as claimed” Herron took the view that “had the propensity or tendency existed at a point in time closer to when the plaintiff says the defendant sexually abused her the evidence may have been relevant by establishing a pattern of behaviour of sexually abusing young girls at a time contemporaneous to when the plaintiff says he sexually abused her, which would have made it more likely he sexually abused the plaintiff consistent with that pattern of behaviour.”

Herron decided the similar fact or tendency evidence was not probative to determining the fact in issue.

Instead, Herron considered the similar fact evidence was relevant on a different basis. He determined it was relevant and admissible in rebutting an explanation that it is implausible that a person in the defendant’s position would have committed the acts of child sexual abuse. The existence of his sexual interest in the young girls in the latter years and the tendency to act on it gave Justice Herron greater comfort in being able to accept the plaintiff’s evidence notwithstanding his highly regarded public profile. It gave support to her evidence even though he was a well-known highly regarded figure.

Chamberlains Law Firm represents clients for historical sexual abuse claims against both institutions and individuals. The hope in bringing a claim for childhood historical abuse is to hold the individual or institution accountable and provide financial compensation to the survivor for the harm caused. Please get in touch with our experienced team in this area for a confidential no-obligation initial chat.