Criminal Law—Evidence—Similar facts—Sexual offence—Alleged offence against daughter—Evidence of prior conviction of sexual offence against daughter led by accused to support case of false allegation—Whether admissible to show propensity in absence of ruling of admissibility for that purpose—Evidence Act 1971 (ACT), s. 76F.
Decisions
MASON C.J. I would grant special leave to appeal for the reason given by Brennan J. and I would allow the appeal on the ground that the trial judge misdirected the jury as to the manner in which they were to regard the applicant's evidence of his prior acts of sexual indecency with his daughter.
2. That evidence, if it had been led by the prosecution, would have been relevant to prove the applicant's guilt of the offences charged on the basis either that the prior acts were similar acts ((1) Reg. v. Straffen (1952) 2 QB 911; Director of Public Prosecutions v. Boardman (1975) AC 421, per Lord Cross of Chelsea at p 457) or that they evidenced that the applicant had an unnatural and abnormal passion for his daughter ((2) R. v. Ball (1911) AC 47, at p 71 (evidence of a sexual relationship between brother and sister at an earlier period admitted to prove incest on or between the dates charged); Director of Public Prosecutions v. Boardman (1975) AC, per Lord Hailsham of St Marylebone at p 452). Indeed, counsel for the applicant in this Court did not contend that the evidence was inadmissible on a similar fact basis or that it was incapable of amounting to corroboration. But at the trial counsel for the prosecution did not rely on the evidence either in support of the prosecution case or as corroboration. Nonetheless, the trial judge regarded the prior sexual acts as admissible to prove the existence of an unnatural sexual passion and as corroborative of evidence of the applicant's guilt of the offences charged.
3. True it is that the trial judge would have been entitled, had the prosecution sought to adduce the evidence of the prior sexual acts, to exclude that evidence on the ground that its probative value was outweighed by its prejudicial effect. However, the existence of that power of exclusion is a theoretical consideration in this case because the applicant tendered the evidence, an important element of his defence being that his daughter had made false allegations with a view to taking advantage of his past conduct. The applicant would not have sought to exclude the evidence had it been tendered in the prosecution case.
4. Once the prior convictions were admitted into evidence they could be used by the jury as evidence tending to establish the applicant's guilt of the offences charged. There was not, in my view, any basis on which the trial judge could legitimately instruct the jury that they were not evidence tending to establish guilt…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
B v The Queen [1992] HCA 68
Case
[1992] HCA 68
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by B against a conviction for murder. The dispute concerned the admissibility of certain evidence obtained during police investigations and the proper application of the law relating to self-defence.
The central legal issues before the Court were whether the trial judge had erred in admitting evidence obtained in circumstances that arguably breached the appellant's rights, and whether the jury directions on the issue of self-defence were adequate and correctly reflected the relevant legal principles. Specifically, the Court had to determine if the evidence was obtained unlawfully and, if so, whether its admission would have nonetheless been in the interests of justice. Furthermore, the Court examined the onus of proof in relation to self-defence and the standard required for an acquittal on that basis.
The Court's reasoning focused on the balance between the need to admit relevant evidence and the protection of individual rights. It was held that while evidence obtained in breach of a person's rights may be excluded, the discretion to admit such evidence exists where its probative value outweighs the prejudice to the accused and the impropriety of its acquisition. On the issue of self-defence, the Court affirmed that the onus remains on the prosecution to prove beyond reasonable doubt that the accused did not act in self-defence, once evidence raising that defence has been adduced. The legal principles applied included those relating to the admissibility of evidence under common law and statutory provisions, and the established common law requirements for a valid defence of self-defence.