IZG2 v State of New South Wales; AXJ2 v State of New South Wales; KWM2 v State of New South Wales; BJS2 v State of New South Wales

HIS HONOUR: The State of New South Wales has applied for leave to rely upon a supplementary witness statement from KGM2 dated 19 February 2025. KGM2 has already provided a statement, in the form of a statement given to the police, dated 10 June 2021. That statement was served on Ms Lam in accordance with directions made by Garling J last year for the service of the State’s evidence in anticipation of the hearing that commenced before me on 17 February 2025.

In brief compass, KGM2’s evidence deals with a discrete incident in which she says she was involved at some time during her employment between 1977 and 1979 as a teacher at the Maroubra Bay High School where the alleged sexual abuse that lies at the heart of these proceedings is said to have occurred. Her role in that respect may be described as follows.

The State alleges that Ms Lam, who is the cross-defendant sued by the State for contribution or indemnity with respect to damages paid by the State to the four plaintiffs, committed a series of sexual acts upon and with each of the plaintiffs in 1978 and possibly thereafter when she was a teacher at the school and the plaintiffs were students there. Evidence has already been given by one of the plaintiffs that, on a single and particular occasion during that timeframe, he was alone in a room at the school with Ms Lam. His statement about this is in these terms:

This plaintiff was cross-examined about the incident. That evidence included the following extracts:

KGM2’s evidence refers to what the State will maintain is this precise incident. That evidence is as follows:

By reason of the issues that arise for determination by me in this case, apart from establishing that it occurred, the timing of this incident and the identity of Ms Lam as the woman on whose lap the plaintiff was seated are significant aspects of the State’s case. In short, Ms Lam disputes that the alleged sexual abuse took place at all. Whatever be the outcome of that contest, it is also in dispute that the school ever became liable to the plaintiffs for damages as a tortfeasor because it relevantly never became aware of the alleged sexual activity between Ms Lam and the plaintiffs and otherwise had no reason to believe or suspect that it occurred.

Importantly for present purposes, the State maintains on the contrary that the school was given notice both of an allegation of general sexual activity between Ms Lam and students at the school as well as specific notice of this incident with Ms Lam and the plaintiff who was sitting on her lap. In this latter respect, as KGM2’s evidence quoted above suggests, she reported what she said she saw to the principal shortly afterwards. In the former respect, evidence has also been given by another of the plaintiffs that he went to the principal’s office with his brother and told the principal that Ms Lam “was having sex with children”.

The proposed supplementary statement that the State now wishes to rely upon from KGM2 contains the following relevant passages:

It is not presently possible for me to have formed, and I do not express, any view about the extent to which, if at all, this proposed supplementary evidence assists or advances the State’s case. Whether or not it shows that the school had notice of sexual activity between Ms Lam and the plaintiffs or when it received such notice, if it did, remain to be seen. Nor is it appropriate or possible for me to comment on the proposed supplementary evidence by reason of the way in which it has come to light or the propriety of the police approach to eliciting a statement from KGM2 by showing her a series of pictures that included one of Ms Lam with her name printed underneath. Other criticisms could also be made of the police techniques in this case.

The State maintains that this is evidence, whatever may be said about its admissibility or probative value, that could, and perhaps should, have been included in KGM2’s original statement but was not. It goes to the issue of whether notice was given to the school and when it was given if it was. It is clearly relevant to the issue of causation that the plaintiffs would have faced in the proceedings if they had not been resolved and which the State is still required to prove as an alleged tortfeasor seeking contribution in its capacity as such from Ms Lam. The supplementary evidence does not, according to the State’s submission, cause unfair prejudice to Ms Lam because it would have formed part of KGM2’s statement if closer attention to what she told the police, and to what occurred when she spoke to them, had been given by those who represent the State on the cross-claim before me. The State maintains, in effect, that there is no unfair prejudice to Ms Lam if the evidence is led, and that the only prejudice that she could sustain would result from what the reception of the evidence might mean in the disposition of the factual issues in this case.

Ms Lam does not contend that she has sustained any prejudice that she would not have sustained if the evidence had been served in accordance with Garling J’s directions. I was at one stage attracted to the argument that Mr Toomey SC for Ms Lam would lose the opportunity to not require KGM2 for cross-examination so that her original statement would go into evidence without more. However, that so-called forensic disadvantage, which Mr Toomey understandably did not embrace with enthusiasm, is illusory once it is acknowledged that the evidence could and should have been part of KGM2’s original statement.

The matter can be tested in the following way. If the material in the supplementary statement had formed part of the evidence originally served, as it should have, could Ms Lam have objected to it upon the basis that it was unfairly prejudicial to her then or upon any other available basis? The answer to that question seems to me clearly to be ‘no’. Unless its late service creates an identifiable and significantly unfair prejudice, which has not so far been identified, the State should in my view have leave to rely upon it now.