BSJ v The Queen - [2013] HCATrans 322

[2013] HCATrans 322

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M94 of 2013

B e t w e e n -
BSJ
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

CRENNAN J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 13 DECEMBER 2013, AT 11.38 AM

MR C.W. BEALE, SC: If the Court pleases, I appear on behalf of the applicant. (instructed by Victoria Legal Aid)

MR O.P. HOLDENSON, QC: May it please the Court, I appear in this matter on behalf of the respondent. (instructed by Director of Public Prosecutions (Vic))

CRENNAN J: Yes, Mr Beale.

MR BEALE: Your Honours, this case raises important questions about methodology when assessing the probative value of coincidence evidence. The coincidence evidence in this case which took the form of similar allegations by four sisters against their stepfather should have been ruled inadmissible because it lacked significant probative value. Based on the information in the statements and the depositions, there was a real question regarding the risk of joint concoction, but both the trial judge and the Court of Appeal approached that question in the wrong way. Dealing firstly with the trial judge, can I take your Honours to page 24 in the application book? The relevant passage appears at line 18:

In assessing the probative value of the evidence sought to be admitted, as either coincidence evidence or as tendency evidence, in my view that the evidence in the depositions must be accepted as true.

That is how his Honour began the analysis of the admissibility of the coincidence evidence. Now, where similar allegations are relied upon for coincidence evidence and there is a sufficient degree of similarity, three possibilities arise. The first possibility is that those similarities are explained by the fact that the allegations are true. The second possibility is that they are lies and it is just pure coincidence that those lies are so similar. The third possibility is that those similarities arise in Lord Wilberforce’s phrase in Boardman, from “a cause common” to the complainants.

So, the inquiry in relation to whether similarities exist because the allegations are true or because they arise from a cause common to the witnesses does not begin with an assumption that what appears in the depositions is true. In the Court of Appeal’s judgment - and if I can take your Honours to the application book at page 320 – the error that I have just described in the learned trial judge’s approach was not perceived by the Court of Appeal. At line 9 they say – line 8:

We can perceive no error in the trial judge’s approach –

Your Honour, returning to the trial judge’s approach to the admissibility of the coincidence evidence and, in particular, the risk of joint concoction, there was a real question and that real question had to be considered to determine whether the court could be…

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

Case: [2013] HCATrans 322
Decision Date

CaseChat Overview and Summary

The appeal concerned the conviction of BSJ for the offence of aggravated sexual assault. The dispute arose from allegations of sexual assault occurring in 2008. The case was heard on appeal by Crennan and Keane JJ of the High Court of Australia.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of prior sexual conduct by the appellant, BSJ, with the complainant. Specifically, the court had to determine if this evidence was relevant to the issue of consent, and if its probative value outweighed its prejudicial effect, in accordance with the rules of evidence.

The High Court held that the evidence of prior sexual conduct was improperly admitted. Their Honours reasoned that while such evidence might, in some circumstances, be relevant to the issue of consent, in this particular case, the evidence did not establish a pattern of conduct or a relationship that made the prior conduct probative of consent to the later alleged assault. The prejudicial effect of the evidence, which suggested a propensity for sexual conduct, was found to outweigh any minimal probative value it possessed. The court concluded that the admission of this evidence likely led to a miscarriage of justice.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders