Fraser and Morrison and McMurdo JJA
The appellant was convicted of six sexual offences against the respondent which occurred on an unknown date between September 1998 and October 1999. At the time of the offences, the respondent was 14 or 15 years of age.
The respondent subsequently commenced civil proceedings claiming damages for intentional and unlawful assault and trespass to her person. At paragraph 3 of the Statement of Claim, the respondent pleaded the fact that the appellant was convicted of the six offences and at paragraph 5 that appellant intentionally and unlawfully committed the six offences.
In its Defence, the appellant admitted that he had been convicted of the six offences, however, denied that those offences were intentional or unlawful and contended that the allegations were untrue and contrary to fact. The appellant applied to file an Amended Defence and sought to be relieved from the pleading rules to maintain privilege against self-incrimination in relation to paragraphs 3 and 5 of the Statement of Claim.
The learned primary judge dismissed the application. Her Honour found that the appellant failed to show reasonable grounds for taking privilege as there was no real explanation as to why the appellant could not plead a positive case in relation to the six specific offences.
The appellant seeks leave to appeal against her Honour’s decision to dismiss the application.
The appellant submitted that privilege against self-incrimination is a legal right enshrined in s 10 of the Evidence Act 1977 (Qld) (Evidence Act) and the effect of the primary judge’s decision was to defeat the appellant’s right to claim privilege. The appellant further submitted that he had a relationship with the respondent before she was 16 but there was a dispute as to whether at that stage the relationship was sexual.
The respondent submitted that the certificates of conviction under s 79 of the Evidence Act were prima facie proof of the offences and their elements and therefore the appellant was taken to have committed the offences unless the contrary was proved. The appellant submitted that there must be some evidence of a risk of further proceedings to enable the privilege to be maintained but pleading a positive case to the six specific offences could not expose the appellant to that risk.
Morrison JA, with whom Fraser and McMurdo JJA agreed, stated as follows:
 The risk to which the appellant points had at least two limbs. The first is that counts 3 and 5, both of which were indecent treatment of a child under 16, were the subject of a nolle prosequi at the trial. As the decision of this Court on the appellant’s conviction appeal reveals, the respondent did not give evidence in the terms particularised for those counts, and the prosecution consequently withdrew them. The contention is that there is a remaining exposure of criminal prosecution on those counts if the appellant goes into detail about his relationship with the respondent prior to her being 16.
 The second is more broad, being that as he was convicted of sexual offences in respect to the respondent who was then under 16, if he goes into details about his relationship with her at that age, that could lead to a train of inquiry, resulting in the potential to exposing him to prosecution.
 … even on the appellant’s own account, he knew the respondent when she was under 16, when she was being paid to clean his house. In the course of that relationship she offered sex for money and because he was concerned by her age, he took legal advice and then declined her proposition, but only until she was of age. Those facts could lead to a train of inquiry as to whether he in fact had a sexual interest in the respondent at a time when she was under 16.
His Honour stated that the risk to which the appellant is exposed by pleading further than the fact that the acts constituting the six offences never occurred neither tenuous or remote. His Honour found that by mounting a positive case, it was possible to envisage the possibilities of self-incrimination. Morrison JA went on to state:
 It is well established that pleading rules must give way to privilege, whether it be penalty privilege or privilege against self-incrimination.
 … the court is not called upon to assess the precise measure or degree of risk, as long as there is a degree of risk which cannot be dismissed as tenuous or illusory or so improbable as to be virtually without substance. The risk here is not tenuous, illusory or so improbable as to be virtually without substance. Therefore, consistent with what was held by this Court in Anderson, the pleading rules have to give way to protect the substantive right of privilege against self-incrimination.
 However, that should not become a weapon of oppression against the opposite party. To prevent that there are two steps which, in my view, should be followed.
 First … paragraph 3A of the proposed pleading needs to be amended to plead the explanation for the denial as being that the incidents alleged in paragraphs 5.1 to 5.6 did not occur. …
 Secondly, the time at which the positive case is eventually revealed must not subject the respondent to unfairness.
His Honour granted leave to appeal, concluding as follows:
 … The only thing preventing the appellant from revealing the nature of the positive case in the pleading is the question of the privilege against self-incrimination. However, for so long as the appellant is relieved from pleading the positive case, he is also relieved from other obligations that follow from pleading, such as disclosure.
 For that reason I do not consider that the appellant should be permitted to stand back and wait until the plaintiff’s case has closed, thus putting her in the invidious position of being subjected to two sets of cross-examination. Various possibilities can be envisaged as to when the point of revealing the positive case might arrive. One is that the time for revealing the positive case could come at the point of cross-examination of the plaintiff. At that point, if there are matters of surprise, or a deficiency in disclosure, the cross-examination could be stopped, and directions given to remedy that situation, with any necessary adjournment.
David Cormack – Brisbane Barrister & Mediator