BD v The Queen

The case of BD v The Queen concerned an appeal against conviction for offences against the person, specifically relating to alleged indecency. The appellant, BD, was convicted by a jury, and the appeal was heard by Grant CJ, Kelly, and Barr JJ. The central dispute revolved around the admissibility and proper direction to the jury concerning certain evidence presented by the Crown.

The legal issues before the court included whether the Crown’s evidence, at its highest, disclosed indecency in the relevant sense for the purposes of section 132(2)(a) of the Criminal Code, requiring proof of either the dealing being indecent in itself or committed in circumstances of indecency, which involved sexual motivation. Further issues concerned whether the trial judge adequately directed the jury on the need for satisfaction beyond reasonable doubt regarding the appellant's motive or purpose, particularly in relation to his assertion of duty as a teacher, and whether tendency evidence was erroneously admitted due to lacking significant probative value under section 97(1)(b) of the Evidence (New South Wales) Uniform Legislation Act (ENULA). The court also considered whether the integrity of the jury's deliberations was compromised and, if so, whether a new trial was required in the interests of justice.

The court allowed the appeal on the grounds that the directions given to the jury regarding the appellant's motive or purpose were inadequate, failing to explain the significance of his assertion of duty as a teacher and potentially misdirecting the jury by drawing attention to the defence of justification under section 27(p) of the Criminal Code. Additionally, the court found that certain tendency evidence was erroneously admitted as it did not possess significant probative value within the meaning of section 97(1)(b) of the ENULA, as the conduct described was not overtly indecent or sexualised and lacked the necessary particularity. The court quashed the conviction.

Given the quashed conviction, the court considered whether the interests of justice required a new trial. It concluded that a new trial was not warranted due to factors including the time already spent in custody, the appellant no longer being employed as a teacher, and the potential for prejudice by delay and adverse consequences from a retrial.