Special Bulletin 26 — April 2012

BBH v The Queen [2012] HCA 9

Evidence in child sexual assault cases


The High Court has recently entered into a further consideration of the admissibility of evidence in a child sexual assault case. The offence arose under Queensland legislation and Queensland evidence law applied. To that extent, the case has limited relevance to the law in this State where the provisions of the Evidence Act 1995 apply. Much of the decision is concerned with the application of Pfennig v The Queen (1995) 182 CLR 461 to the evidence under consideration. Pfennig does not apply in this State under the Evidence Act: R v Ellis (2003) 58 NSWLR 700 at [89]–[90]. However, the court entered again into the area of the relevance of uncharged criminal acts in child sexual assault cases and undertook a further consideration of HML v The Queen (2008) 235 CLR 334.

Ultimately, it is clear that there is still a divided opinion amongst the members of the High Court as to the relevance and admissibility of uncharged acts in child sexual assault cases. Hayne and Gummow JJ maintain that such evidence can only be admitted to prove tendency and must be proved beyond reasonable doubt. Crennan, Kiefel and Bell JJ acknowledge that such evidence can be admitted as “context evidence” or as “tendency evidence”. It is only in the latter category of evidence that the Pfennig test applied. French CJ and Heydon J expressed no clear view on the issue. It seems that the decision does not impact upon the statement in DJV v R (2008) 200 A Crim R 206 at [28]–[31] as to the law to be applied in this State on the authority of HML.

The evidence that substantially came under scrutiny was that from the complainant’s brother, W. He gave evidence about what he witnessed between the complainant and the appellant, her father, when the family was camping at a farm. Everybody present at the farm apart from the appellant and the complainant were involved in a tractor ride. W returned to the campsite unexpectedly to retrieve his pocket knife. He saw the complainant standing with only her shirt on and the appellant watching her with his hand on her waist. She was bent over as if touching her toes. She was about six inches away from the appellant. W, on seeing this, returned to the others without retrieving the knife. Both in his statement to police and in cross-examination, W conceded that what he saw may have been consistent with his father undertaking some innocent conduct such as looking for a bee sting or an ant bite. The complainant gave no evidence of this incident. The appellant denied it occurred.

The complainant gave evidence of a number of acts of sexual misconduct by her father which were not charged in the indictment. This evidence was admitted on the basis that it was “context evidence”. The judge explained to the jury that W’s evidence was both “context evidence” but was also relied upon by the prosecution as evidence “capable of establishing the guilty passion or the sexual interest … in the complainant” by the appellant: at [42]. The jury were warned that they had to find that there was no innocent explanation for the evidence of what W saw.

It was argued in the High Court that the evidence was not admissible because W acknowledged that there might have been an innocent explanation for what he had seen. This argument was rejected by a majority of the court.

French CJ did not enter into any consideration of the nature of the evidence because he believed it was inadmissible as it was irrelevant. This was because of its equivocal nature: at [57].

Hayne J, with whom Gummow J agreed, after referring to HML stated his view that evidence of uncharged acts could not be acted upon by the jury unless the evidence was:


proved beyond reasonable doubt, and


that, if accepted, showed that the accused had a sexual interest in the complainant: at [78].

The evidence of W was not admissible because it was open to an innocent explanation: at [79]–[80].

Heydon J, while dismissing the appeal, did not enter into a consideration of the nature and relevance of uncharged acts. He determined that the evidence was admissible and it was for the jury to determine what weight, if any, to give it and what use to make of it. His Honour held that it was open to a jury to find beyond reasonable doubt that what W witnessed was a sexual act and that it was relevant to prove sexual passion: at [103].

Crennan and Kiefel JJ in a joint judgment acknowledged that evidence of uncharged acts given by the complainant could be admitted as, what they referred to as “relationship evidence” and that the Pfennig test did not apply to that type of evidence: at [148]. W’s evidence, however, did not fall into that category but it was admissible to show the appellant’s sexual interest in the complainant. Of significance, their Honours pointed out that in HML, a majority of the court did not hold that evidence of uncharged acts could only be admitted to show “sexual interest”: at [140]. In particular, their Honours referred to Roach v The Queen (2011) 242 CLR 610 as supporting the proposition that the Pfennig test did not apply to evidence of the relationship between the appellant and the complainant which included uncharged acts: at [148].

Bell J expressly agreed with the views expressed by Crennan and Kiefel JJ as to the nature of W’s evidence and the distinction between evidence that incidentally reveals propensity (that is, relationship or context evidence) and evidence of propensity adduced as evidence of guilt (that is, as tendency evidence): at [193]. Her Honour held that W’s evidence was properly admitted as evidence of the appellant’s sexual interest in the complainant: at [203].