BBH v The Queen

Case [2012] HCA 9

HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

BBH  APPLICANT

AND

THE QUEEN  RESPONDENT

BBH v The Queen [2012] HCA 9
28 March 2012
B76/2010

ORDER

1.     Application for an extension of time to apply for special leave granted.

2.     Special leave to appeal granted.

3.     Appeal dismissed.

On appeal from the Supreme Court of Queensland

Representation

B W Walker SC with P J Callaghan SC and A Boe for the applicant (instructed by Boe Williams)

A W Moynihan SC with A D Anderson for the respondent (instructed by Director of Public Prosecutions (Qld))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

BBH v The Queen

Criminal law — Evidence — Relevance — Propensity evidence — Applicant found guilty by jury of maintaining sexual relationship with child under 16, indecent treatment of child under 16 and sodomy of person under 18 — Complainant was applicant's daughter — Complainant's brother gave evidence of uncharged incident between applicant and complainant — Complainant's brother provided innocent explanation for incident — Whether brother's evidence admissible where complainant did not give evidence about incident — Whether evidence relevant to applicant's alleged sexual interest in complainant — Whether test for admissibility in Pfennig v The Queen (1995) 182 CLR 461 applicable — Whether test satisfied.

Words and phrases – "propensity", "rational view", "sexual interest".

Criminal Code (Q), ss 208, 210 and 229B.

FRENCH CJ.

Introduction

  1. On 25 January 2006 an indictment was presented against the applicant in the District Court of Queensland alleging a number of sexual offences against the Criminal Code (Q) ("the Code") in relation to his daughter ("the complainant"). The complainant was born on 5 July 1983. The offences were alleged to have been committed at different times between 1987 and 1999. The indictment contained 12 counts. The first count charged that, between 3 July 1989 and 31 March 1999, the applicant had maintained an unlawful sexual relationship with the complainant contrary to s 229B of the Code. There were six counts of unlawful and indecent dealing when the complainant was under 14 and under 16 years of age. In four counts it was alleged that the applicant had sodomised the complainant. On another count it was alleged that he unlawfully procured the complainant to do an indecent act when the complainant was under 12 years of age.

  2. After a trial by jury, the applicant was convicted on 17 May 2007 of the offence of maintaining an unlawful sexual relationship with the complainant, four offences of unlawful and indecent dealing with the complainant and four offences of sodomising the complainant.  He was sentenced to 10 years imprisonment on each count, the sentences to be served concurrently.

  3. The applicant's appeal to the Court of Appeal of the Supreme Court of Queensland was dismissed on 19 October 2007[1].  On 24 December 2010 he applied to this Court for special leave to appeal against the…

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Details
AGLC
BBH v The Queen [2012] HCA 9
Case
[2012] HCA 9
Decision Date

CaseChat Overview and Summary

The applicant, BBH, was convicted by a jury of maintaining a sexual relationship with a child under 16, indecent treatment of a child under 16, and sodomy of a person under 18, all involving his daughter. The complainant's brother gave evidence of an uncharged incident involving the applicant and the complainant, which the brother provided an innocent explanation for. The applicant appealed his convictions, arguing that the brother's evidence was inadmissible. The High Court of Australia considered the admissibility of this evidence and its relevance to the charges.

The central legal issue before the High Court was whether the evidence of the complainant's brother concerning an uncharged incident was admissible, particularly given that the complainant herself did not give evidence about that specific incident. This raised questions about the evidence's relevance to the applicant's alleged sexual interest in his daughter and whether the test for admitting propensity evidence, as established in *Pfennig v The Queen*, was satisfied. The court also had to consider the proper application of the *Pfennig* test in circumstances where the uncharged incident was explained innocently by the witness.

The High Court found that the Court of Appeal erred in its reasoning regarding the admissibility of the brother's evidence. The Court of Appeal had considered the evidence relevant to making the complainant's allegations more intelligible and credible, and also as tending to establish a sexual relationship. However, the High Court held that the complainant's evidence of a history of abuse was already intelligible, and the brother's evidence did not render it more so. Furthermore, the court determined that the brother's evidence, on its own, was not capable of supporting a finding that an offence of a sexual nature was committed, as it lacked sufficient detail and corroboration to meet the standard of proof beyond reasonable doubt for an uncharged offence. The High Court also noted that the trial judge's direction to the jury regarding the brother's evidence was not sufficient to avoid undue prejudice.

The High Court granted the application for an extension of time to apply for special leave to appeal and granted special leave. However, the appeal itself was dismissed.

Orders

Orders of the court

1. Application for an extension of time to apply for special leave granted.

2. Special leave to appeal granted.

3. Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Each of the counts of sodomy of which the applicant was convicted alleged an offence against s 208(1)(a) of the Code. That section makes it an offence to sodomise a person under the age of 18 years. Again, subject to variations in the periods covered, each count was in the form set out in count 6: "That on a date unknown between the fourth day of July, 1997 and the sixth day of July, 1999 at Redland Bay in the State of Queensland, [BBH] sodomised [the complainant], a person under 18 years And [the complainant] was, to the knowledge of [BBH], his lineal descendant". None of the counts in relation to the charges of unlawful and indecent dealing and sodomy, of which the applicant was convicted, covered periods commencing earlier than the commencement date of the Criminal Law Amendment Act 1997 (Q). Evidence at the trial The applicant married in 1981. He and his former wife had three children, two boys and a girl. The complainant, who was their second child and only daughter, was born in July 1983. Her younger brother, whose evidence at trial is in issue in this appeal, was born in September 1984. The applicant and his wife separated in 1995 and were divorced in 1996. Immediately after the separation the children lived with their mother. After a Family Court hearing the children resided with the applicant. The complainant gave evidence that she began to be sexually abused by the applicant when she was "younger than four". The first occasion alleged was the subject of count 2, of which the applicant was acquitted. The frequency of the abuse varied from every couple of days to every couple of weeks or months. The incidents of abuse were said to have involved digital penetration of the complainant's vagina and penile penetration of her anus. According to the complainant these incidents sometimes occurred when the family went on camping trips. The complainant's brother gave evidence of the farm holiday incident after the complainant's evidence and following the ruling by the trial judge that his evidence was admissible. Her Honour's ruling and the brother's evidence are outlined below. The complainant's mother was called as a Crown witness. She testified about an incident when the complainant was a young child and the applicant picked her up, held her on his hip and stroked her upper thigh with his hand. The complainant's mother also gave evidence that on occasions, when she and the applicant were having intercourse in their bedroom in the morning, he would call the children in to the bedroom and ask them to give their mother a cuddle while intercourse was occurring. A former boyfriend of the complainant gave evidence identifying a letter which she had written to him when she was in Year 12 at school. The letter referred indirectly to the applicant's conduct with the complainant over a period of some years. A doctor who saw the complainant in 2000 and 2001 gave evidence, without objection, of the contents of an unsigned letter she had written to the doctor alleging that the applicant had taken advantage of her sexually, that she had been unable to stop him as she was too frightened, and that his conduct had continued until she was 15 years old. The letter was not put in evidence.Another doctor gave evidence as to the physical symptoms which would be exhibited by a person who had been sodomised over a 10 year period.

Decision

Reasons for decision

FRENCH CJ GUMMOW J HAYNE J HEYDON J (dissent)
In relation to the charge under s 229B of the Code, the trial judge directed the jury, in accordance with the decision of this Court in KBT, that before the jury could be satisfied that the applicant did an act defined as an offence of a sexual nature on at least three occasions, they must all agree on the three acts which he did. Her Honour expressly left open the possibility that the prosecution could prove, for the purposes of the charge, that the accused did an uncharged act of a sexual nature. She said: "The prosecution can prove that the accused did an act of a sexual nature even if it's not charged on the indictment, even if it is an uncharged act, but you've got nine of them on the indictment to consider." Her Honour did not limit, by reference to specific evidence, the acts in respect of which such a finding would be open. Her Honour thereby left open the possibility that the brother's evidence might be treated as evidence of an uncharged offence of a sexual nature for the purpose of s 229B(1). That was not a possibility which should have been left open. The brother's evidence was not capable, taken by itself, of supporting a finding that on the day and at the time to which it related, an offence of a sexual nature was committed by the applicant. The evidence was not capable of meeting the standard for proof of such an act, namely proof beyond reasonable doubt, as explained by this Court in KBT. The brother's description of what he saw was limited. There was no additional material to complete the picture and support the inference of an uncharged offence occurring. The complainant's evidence was that she had no recollection of the incident and that incidents of a sexual nature which had occurred at the farm between her and the applicant were of a different character. The Court of Appeal decision The applicant sought leave to appeal against his convictions to the Court of Appeal on a number of grounds which included the complaint that the trial judge erred in admitting the evidence of the complainant's brother. The applicant also contended before the Court of Appeal that the trial judge's direction to the jury in relation to the brother's evidence was inadequate to avoid undue prejudice to the applicant. The reasons for decision of the Court of Appeal were given by Keane JA, with whom Holmes JA and Lyons J agreed. In relation to the admissibility of the brother's evidence, their Honours held: .the evidence of the complainant's mother and brother, and the complainant's evidence of uncharged acts of sexual abuse, was relevant because "it was apt to render more intelligible and credible allegations which otherwise might be seen to be unintelligible and incredible in terms of the usual relationship between father and daughter."[43] Their Honours referred to the judgment of Dixon J in O'Leary v The King[44] in support of this justification for admissibility. That case, however, concerned the admissibility of evidence without which other evidence "could not be truly understood and, isolated from it, could only be presented as an unreal and not very intelligible event."[45] That was not this case. The complainant's evidence of a history of abuse from childhood to her teenage years was intelligible. On any view, the evidence of her brother did not render it more so. Its effect on the credibility of that evidence depended upon the inferences that could be drawn from it; .the brother's evidence was also relevant because "it tended to establish the maintaining offence, in that it revealed a sexual relationship between the [applicant] and the complainant."[46] It can be said immediately that if the premise of this aspect of their Honours' reasoning was that s 229B required proof of the prohibited statutory relationship over and above proof of at least three acts constituting offences of a sexual nature, it was inconsistent with KBT. On the other hand, evidence of a sexual relationship could legitimately be used to support inferences about the commission of the three or more offences of a sexual nature required by s 229B(1A) to establish the statutory relationship; .the absence of evidence from the complainant concerning the incident to which her brother testified did not render her brother's evidence inadmissible[47]; .the jury were given a clear direction to consider whether there was an innocent explanation for what the brother saw[48]. That, of course, was not a matter going to the admissibility of the evidence.The Court of Appeal also held, in relation to the sufficiency of the trial judge's directions to the jury, that: [43]R v BBH [2007] QCA 348 at [40].[44](1946) 73 CLR 566; [1946] HCA 44.[45](1946) 73 CLR 566 at 577.[46][2007] QCA 348 at [41].[47][2007] QCA 348 at [42].[48][2007] QCA 348 at [41]..it was not necessary for the trial judge to direct the jury that they could not act on the brother's evidence unless they were satisfied beyond reasonable doubt that the brother's evidence, considered in isolation from the other evidence in the case, established "a sexual act" between the applicant and the complainant[49]. This aspect of the reasoning suggests that their Honours were of the view that the brother's evidence could establish that an act of a sexual nature had been committed by the applicant on the camping weekend in 1994;.the trial judge's direction was sufficient to ensure that the jury understood that they could not act on the brother's evidence unless satisfied that the incident did occur and that it did not have an innocent explanation. That direction was sufficient to ensure that the jury did not misuse the brother's evidence[50].[49][2007] QCA 348 at [44].[50][2007] QCA 348 at [44].The application for special leave

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW J, HAYNE J,

It is necessary now to have regard to the period covered by the first count on the indictment. That period straddled the amendments to s 229B effected in 1997. The existence of those amendments appears to have played a role in the discussion between the trial judge and counsel at the trial which led to the trial judge fixing upon "guilty passion" as the basis of the admissibility of the evidence which is in issue in this appeal.The duration of the offence under s 229B In the course of argument before the trial judge it emerged that, according to the brother's written statement to police in 2005, the incident of which he was to be called to give evidence occurred in or about 1994[37]. Defence counsel pointed out that if the incident had occurred in or about 1994, it would be necessary "to be cognisant of what the appropriate legislation was". There followed a discussion about the effect of the successive amendments to s 229B. The trial judge suggested that the period covered by the first count should terminate on the coming into effect of the 1997 amendment. The prosecutor said that there were three acts, which he could rely upon, that had occurred before that amendment[38]. If a second charge under s 229B(1) was laid to cover the period from 1 July 1997 the brother's evidence could not be used as evidence of an offence of a sexual nature to support it. In response the trial judge raised the possibility that the evidence was admissible, in any event, as going to "guilty passion". The prosecutor submitted that it was admissible on that basis. [37]The brother was born in 1984. According to his police statement the incident occurred when he was about 10. [38]This appears to have been a reference to the offences charged in counts 2 and 3 and the conduct referred to in the brother's proposed evidence. Following an adjournment, and before ruling on the brother's evidence, the trial judge asked the prosecutor what he was going to do about the first count on the indictment. The prosecutor submitted that from 1997 to 2003, sub‑s 229B(2) was in almost identical terms to sub-s 229B(1A). The trial judge expressed the view that the only change was the prescribed age provision[39]. Neither her Honour, nor counsel, seem to have given consideration to the change in the penalty provisions in s 229B. That change should have been considered. Penalty is a "defining and … essential element of any crime."[40] The effect of the 1997 amendments, although incidental to the debate on the admissibility of the challenged evidence, was not agitated on this appeal. Nevertheless, the approach taken to the first count directs attention to what Gaudron and McHugh JJ said in S v The Queen[41]: "a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished; and the record must show of what offence a person has been acquitted or convicted in order for that person to avail himself or herself, if the need should arise, of a plea of autrefois acquit or autrefois convict."That proposition was true in its application to the offence created by the enactment of s 229B, which preceded S v The Queen. It remains true in its application to the offences created by like provisions in other Australian jurisdictions which post-dated S v The Queen.[39]The trial judge evidently regarded the amendment as material because the complainant had been under 16 years of age at all times between 1989 and 1999.[40]Momcilovic v The Queen (2011) 85 ALJR 957 at 1035 [295] per Hayne J; 280 ALR 221 at 309; [2011] HCA 34.[41](1989) 168 CLR 266 at 284. See also at 276 per Dawson J; Walsh v Tattersall (1996) 188 CLR 77 at 106-108 per Kirby J; [1996] HCA 26.