BCH v The Queen

The applicant, BCH, sought special leave to appeal to the High Court of Australia against his conviction in the District Court of New South Wales. BCH had been tried on four counts of homosexual intercourse under s 78H of the Crimes Act 1900 (NSW), specifically two counts of anal intercourse and two counts of mutual fellatio. He was acquitted of one count of mutual fellatio but convicted on the remaining three counts. The application for special leave concerned the directions given by the trial judge to the jury regarding corroboration and how the Court of Criminal Appeal dealt with this issue.

The central legal issue before the High Court was whether the trial judge's directions on corroboration were adequate, particularly in light of the jury's subsequent request for a transcript of the medical evidence. The applicant argued that despite the trial judge giving an agreed direction on corroboration, which was based on the words of Gibbs J in *Kelleher*, a more comprehensive common law direction should have been provided. This was especially pertinent given the medical evidence presented, which indicated injuries consistent with anal intercourse but also with other possible causes.

The High Court considered the context of the trial, where the Crown prosecutor and defence counsel had not suggested the presence of corroboration in their addresses. The trial judge had made two references to "corroboration" before giving the agreed direction, stating that evidence of general history of the relationship and evidence of complaint were not corroboration. However, after the jury retired, they requested a transcript of the medical evidence. At this point, the applicant's trial counsel renewed a submission for a full common law corroboration direction, highlighting the potential significance of the medical evidence in relation to the corroboration of the anal intercourse charges. The High Court was therefore required to determine if the agreed direction, in conjunction with the circumstances, met the common law requirements for corroboration directions in such cases.