Order of the Court of Criminal Appeal of New South Wales set aside and in lieu thereof order that leave to appeal to that Court be granted, the appeal allowed, convictions on counts 1, 2, 4, 5 and 6 be quashed and a new trial be ordered on those counts.
Date of Order: 14 August 1997 Reasons for Judgment Delivered: 25 September 1997 FC 97/039 S 23/97
On appeal from the Supreme Court of New South Wales
Representation:
P Byrne SC with S J Odgers for the appellant (instructed by Greg Walsh & Co)
R Keleman SC with P G Berman for the respondent (instructed by S E O'Connor, Solicitor for Public Prosecutions (New South Wales))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
BRS v The Queen
Criminal law - Sexual offences - Corroboration - Character evidence - Evidence of similar sexual conduct in relation to a witness - Whether evidence capable of amounting to corroboration - Whether failure by trial judge to direct jury as to permissible use of evidence amounted to a miscarriage of justice.
Criminal law - Similar fact evidence - Relationship between corroboration and propensity evidence - Need for warning to jury as to use and non-use - Basis of admissibility of similar fact evidence - Possibility of concoction.
BRENNAN CJ. BRS was charged on 6 counts of homosexual intercourse with H, BRS being a teacher and H being his pupil under the age of 18 years. After a trial before the District Court of New South Wales, BRS was convicted on 5 of those counts and acquitted on one count. The Court of Criminal Appeal dismissed his appeal against conviction. This appeal, brought by special leave, raises for consideration the admissibility of the evidence given by one of H's fellow pupils, W, and, in the light of that evidence, the sufficiency of the directions given by the trial judge to the jury.
The prosecution case
BRS was one of the masters at a boys' boarding school. His headmaster regarded him as "one of the most outstanding primary school teachers that I have known". He had a fine reputation as a teacher and a carer for the boys in his charge. He had duties as a tutor in one of the school houses which required him to supervise a dormitory and look after the young boys who were accommodated there. H was one of the boys in his house.
H had come to the school in 1985 at the age of 11 after his parents had divorced. H was living with his mother on her country property. He was a big boy and an aggressive boy, looking for attention. He got into fights at school. He says he "wasn't really mates with…
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
AGLC
BRS v The Queen [1997] HCA 47
Case
[1997] HCA 47
Decision Date
CaseChat Overview and Summary
BRS appealed to the High Court of Australia against his convictions for sexual offences. The central dispute concerned the admissibility and use of evidence of similar sexual conduct by the appellant in relation to a witness, and whether the trial judge's directions to the jury regarding this evidence constituted a miscarriage of justice.
The High Court was required to determine whether evidence of similar sexual conduct, in relation to a witness other than the complainant, was capable of amounting to corroboration of the complainant's evidence. Further, the Court had to consider whether the trial judge's failure to direct the jury on the permissible use of this evidence, and the potential for it to be used as propensity evidence, amounted to a miscarriage of justice. The Court also examined the relationship between corroboration and propensity evidence, and the necessity for warnings to the jury regarding the use and non-use of such evidence, particularly in light of the possibility of concoction.
The High Court allowed the appeal, quashing the convictions on several counts and ordering a new trial. The Court reasoned that the evidence of similar sexual conduct, while not directly corroborative in the traditional sense, could be capable of corroboration if it tended to show that the complainant's allegations were not a fabrication. However, the Court found that the trial judge's directions were inadequate, failing to properly guide the jury on how to consider this evidence and the distinction between its use for corroboration and its impermissible use as propensity evidence. This failure was held to have occasioned a miscarriage of justice.
Orders
Orders of the court
1. Appeal allowed.
2. Order of the Court of Criminal Appeal of New South Wales set aside and in lieu thereof order that leave to appeal to that Court be granted, the appeal allowed, convictions on counts 1, 2, 4, 5 and 6 be quashed and a new trial be ordered on those counts.