Relevance of judge's social media posts disputed in appeal hearing

A Tasmanian court has heard that there was "no logical connection" between social media posts made by a trial judge that were sympathetic to victims of child sexual abuse, and his finding in favour of the woman who alleged she was raped by a former teacher.

Earlier this year, Stephen Fane Noga, 76, was sued by one of his former Hobart Matriculation College students, now aged in her 60s, for allegedly sexually abusing her in the 1980s.

The woman also sued the State of Tasmania for allegedly failing in its duty of care.

Justice Stephen Estcourt found in favour of the terminally ill woman and awarded her a cumulative $1.6 million in damages.

According to the appeal filed to the Full Court of the Supreme Court of Tasmania, Mr Noga has appealed against the decision on four grounds — one of which is regarding social media posts and reposts made by Justice Estcourt "before, during and after" the trial which contained "material generally supportive of victims of sexual abuse".

"Resulting in a perception that the trial judge may have been more readily inclined to accept [her] case, or find in favour of [her], rather than independently deciding the action on its merits," the appeal stated.

Dispute over relevance of posts

The appeal hearing started yesterday in Hobart.

The lawyer for the plaintiff, Bruce McTaggart KC, told the court that there was "no logical connection" between the posts and the matter Justice Estcourt was presiding over, and that the allegation that he was biased to the proceedings was inaccurate.

"Judges are human beings, they have all sorts of interests and beliefs," he said.

"Ninety-nine point nine per cent of the population, including judges, would have sympathy for victims of child sexual abuse.

"Assuming he had posted that as an expression of sympathy … it doesn't mean a judge can't bring a fair and impartial mind to determining if someone is a victim, in this case, whether the plaintiff was raped, as she alleged."

The lawyer for Mr Noga, Chris Gunson SC, told the court that there was a "logical connection" between the posts and the outcome.

"If [the posts] are looked at as a collection over a period of time, the general theme of the posts is public expressions of sympathy or support of victims of child sex abuse more generally," he said.

Mr Gunson has also defended his decision to not report the post, when it was first given to his legal team, during the trial earlier in the year.

"There was a considered decision, I was of the view that it didn't get to the level of itself justifying his honour to recuse himself," Mr Gunson said.

"We were unaware of any of the other posts."

Mr McTaggart told the court that this decision was calculated.

"Rather than bring it to the judge's attention and provide him with the opportunity of correcting any wrong impression, that did not occur," Mr McTaggart said.

"They chose to wait until after an adverse judgement to raise the matter."

Mr Noga's legal team is also appealing against Justice Estcourt's decision on the three other grounds, alleging that he "erred in law", including by criticising Mr Noga's evidence and accepting the plaintiff's, which they argued was "glaringly improbable".