R v Western

The appeal before the Full Court of the Supreme Court of South Australia concerned the admissibility of evidence in a trial for sexual offences. The appellant was accused of having sexual relationships with four young boys when they were between approximately 11 and 15 years old, while the appellant was between 22 and 35 years old. The appeal specifically challenged the admission of evidence relating to sexual conduct between the appellant and two of the complainants, MC and IH, after they had turned 18, as evidence of sexual attraction relevant to the charged counts.

The central legal issue before the court was whether the trial judge erred in admitting evidence of consensual sexual conduct between the appellant and IH when IH was an adult. This evidence was admitted to demonstrate the appellant's sexual attraction to IH, which the prosecution argued was relevant to proving the charged counts of sexual offences that occurred when IH was a minor. The court was required to consider the relevance and admissibility of this later, consensual conduct in the context of the alleged historical sexual abuse.

The court reasoned that the evidence of consensual sexual interaction with IH as an adult did not require the high test stipulated by s 34P of the Evidence Act, as it did not constitute evidence of discreditable conduct. Furthermore, the trial was conducted by a judge alone, and there was no indication that the judge had overstated the relevance of this evidence. The court found that the events described by IH, even those occurring when he was an adult, were not so temporally removed as to sever any potential link between the appellant's attraction to IH when he was 14 and the attraction demonstrated by the sexual intercourse that took place when IH was 17 or 18.

The appeal was dismissed. The court concluded that the learned trial judge made no error in admitting the evidence in question or in reaching the verdicts concerning the complainant IH, having conducted an independent review of the evidence and applied the principles established in *M v The Queen*.