B v The Queen [1992] HCA 68

High Court of Australia Mason C.J. Brennan, Deane, Dawson and Gaudron JJ. B v The Queen [1992] HCA 68

ORDER Application for special leave to appeal granted. Appeal allowed. Set aside the order of the Full Court of the Federal Court. In lieu thereof order that the appeal to that Court be allowed; that the applicant's convictions be set aside; and that there be a new trial.

Cur. adv vult.

The following written judgments were delivered:—

Dec. 22 Mason C.J.

I would grant special leave to appeal for the reason given by Brennan J. and I would allow the appeal on the ground that the trial judge misdirected the jury as to the manner in which they were to regard the applicant's evidence of his prior acts of sexual indecency with his daughter.

That evidence, if it had been led by the prosecution, would have been relevant to prove the applicant's guilt of the offences charged on the basis either that the prior acts were similar acts [1] or that they evidenced that the applicant had an unnatural and abnormal passion for his daughter [2] . Indeed, counsel for the applicant in this Court did not contend that the evidence was inadmissible on a similar fact basis or that it was incapable of amounting to corroboration. But at the trial counsel for the prosecution did not rely on the evidence either in support of the prosecution case or as corroboration. Nonetheless, the trial judge regarded the prior sexual acts as admissible to prove the existence of an unnatural sexual passion and as corroborative of evidence of the applicant's guilt of the offences charged.

1. Reg. v Straffen , [1952] 2 Q.B. 911; Director of Public Prosecutions v Boardman , [1975] A.C. 421, at p. 457, per Lord Cross of Chelsea. 2. R. v Ball , [1911] A.C. 47, at p. 71 (evidence of a sexual relationship between brother and sister at an earlier period admitted to prove incest on or between the dates charged); Director of Public Prosecutions v Boardman, [1975] A.C., at p. 452, per Lord Hailsham of St Marylebone.