Johnson v The Queen

The High Court of Australia considered an appeal by a convicted appellant against his convictions for five counts of sexual offending against his sister. The appellant had also faced applications to sever counts one and two for separate trials and to prevent the Crown from leading evidence of discreditable conduct against the complainant. The Crown sought to rely on evidence of the appellant's other alleged sexual misconduct to rebut the presumption of *doli incapax* and to establish the relationship between the appellant and the complainant.

The central legal issues before the High Court were whether the evidence of the appellant's other alleged sexual misconduct was admissible on the trial of each of the remaining counts, and whether the joinder of counts one and three had occasioned a miscarriage of justice. The Court also considered the application of s 34P of the *Evidence Act 1929* (SA), which governs the admission and use of discreditable conduct evidence, and whether the wrongful admission of certain evidence had led to a miscarriage of justice.

The High Court affirmed the decision of the Court of Criminal Appeal, holding that, with the exception of the earliest alleged act (the bath incident), the evidence of the appellant's other sexual misconduct was admissible on the trial of each of the remaining counts. The Court reasoned that this evidence was admissible for permissible uses, such as establishing the relationship between the appellant and the complainant, and that its probative value substantially outweighed any prejudicial effect. While acknowledging the wrongful admission of the evidence relating to the bath incident, the Court found that, given the overall course of the trial, this did not occasion a miscarriage of justice. Furthermore, the Court agreed with the Court of Criminal Appeal that the joinder of counts one or three had not resulted in a miscarriage of justice.

Consequently, the High Court dismissed the appeal.