BRS v The Queen

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.