BBH v The Queen

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.