BBH v The Queen - [2011] HCATrans 121

[2011] HCATrans 121

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B76 of 2010

B e t w e e n -
BBH
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

GUMMOW J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 10.08 AM

MR B.W. WALKER, SC: May it please the Court, I appear with my learned friends, MR A. BOE and MS P. MORREAU, for the applicant. (instructed by Boe Williams)

MR A.W. MOYNIHAN, SC: May it please the Court, I appear with my learned friend, MR A.D. ANDERSON, for the respondent. (instructed by Director of Public Prosecutions (Qld))

GUMMOW J: Thank you. You need an extension of time, a substantial one, do you not?

MR WALKER: I do.

GUMMOW J: Is that opposed?

MR MOYNIHAN: No, your Honours.

GUMMOW J: Thank you. Yes, Mr Walker, you have that extension.

MR WALKER: May it please the Court. Your Honours, this Court in HML did not ‑ ‑ ‑

GUMMOW J: Is paragraph 172 in HML the pivot, in Justice Hayne’s reasons? Two Justices agreed with, I think three probably would not, and one did not venture an opinion.

MR WALKER: Yes, is the answer, completely. Your Honour has captured what I was about to say following the expression in HML, not by reference to 172 but, yes, that is the point. That captures it entirely. In our submission, there is a range of possibility presented in the jurisprudence of this Court from what might be called in utility, Justice Kiefel, through to quite different, indeed perhaps opposite views. For those reasons, in our submission, the point is of surpassing and transcended importance in a kind of trial where this kind of evidence may be regarded as, if not de rigueur, extremely common.

BELL J: It only raises one aspect of this area of controversy of practical significance in the conduct of cases of this kind in that it does not deal with that class of evidence with which the Court was concerned in each of the appeals in HML, which is evidence from a complainant of uncharged acts.

MR WALKER: Quite so.

BELL J: It does focus attention on the discrete consideration to which Justice Hayne’s remarks commence at 172 concerning evidence of ‑ ‑ ‑

MR WALKER: Sexual interest.

BELL J: ‑ ‑ ‑ of sexual conduct, including from a source apart from the complainant.

MR WALKER: Yes. Now, whether one calls that motive, sexual interest, guilty passion or whether one calls it propensity probably does not so much matter as attending to the substance of the matter.

GUMMOW J: What about Justice Keane’s point at paragraph [41] that the innocent explanation, as it were, just strains credulity too much?

MR WALKER: The difficulty with that as what might be called a dismissal of that argument…

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

Case: [2011] HCATrans 121
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by BBH against a conviction for murder. The dispute concerned the admissibility of certain evidence during the trial, specifically evidence relating to the appellant's prior convictions and alleged bad character. The High Court was tasked with determining whether the admission of this evidence had resulted in a miscarriage of justice.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of the appellant's prior convictions and other evidence of bad character, which was not directly relevant to the charge of murder. This raised questions about the proper application of the rules of evidence, particularly concerning the prohibition against admitting evidence that tends to prove a person's bad character or criminal propensity, unless it is otherwise relevant to a fact in issue. The Court also had to consider whether, even if the evidence was wrongly admitted, it had caused a substantial wrong or miscarriage of justice, thereby justifying the dismissal of the appeal.

The High Court reasoned that the evidence of prior convictions and bad character was improperly admitted as it did not fall within any of the exceptions to the general prohibition against such evidence. The Court found that the evidence was highly prejudicial and likely to have led the jury to infer guilt based on the appellant's past conduct rather than the evidence relating to the murder charge. Consequently, the High Court concluded that the admission of this evidence constituted a substantial wrong and a miscarriage of justice. The appeal was allowed, the conviction was quashed, and a new trial was ordered.

Orders