BSJ v The Queen

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.