Johnson v The Queen

The High Court has dismissed an appeal concerning evidence of other misconduct in a historic child sexual abuse prosecution. The accused, aged 58, was convicted of three sexual offences against his younger sister (by two years and ten months): carnal knowledge when the accused was 17 and the complainant was 14; rape when the accused was 28 and the complainant was 25 and a second rape when the accused was 29 and the complainant was 26. At the trial, the prosecution also presented evidence of other sexual incidents, including in a bathtub when the accused was 6 and the complainant was 3; in an implement shed when the accused was 8 and the complainant was 5; in a bedroom when the accused was 9 and the complainant was 6; in a shearing shed when the accused was around 10 and the complainant was around 7; and persistent sexual offending when the accused was aged 18 to 20 and the complainant was aged 15 to 17. The accused was originally convicted of offences in relation to the shearing shed and the persistent sexual offending, but these were quashed by the Full Court of the South Australian Supreme Court on the grounds that the accused was too young to be criminally responsible for the shearing shed incident and the evidence of the persistent sexual offending was too imprecise to support a conviction for that offence. The Full Court nevertheless upheld the accused’s convictions for carnal knowledge and two rapes.

The High Court (Kiefel CJ, Bell, Gageler, Nettle and Gordon JJ) unanimously dismissed the accused’s argument that he should be retried on the remaining convictions because the prosecution offered evidence of the other uncharged (or charged, but incapable of sustaining a guilty verdict) incidents. The joint judgment noted (at [17]) that the Court’s recent ruling in Bauer v The Queen means that evidence of uncharged acts involving the complainant and the accused ‘will commonly have very high probative value as circumstantial evidence of the accused’s propensity to act on his or her sexual attraction to the complainant’; however, despite originally asking to use the evidence in this way, the prosecution in this case did not use the evidence for that purpose at the trial. The probative value of such ‘non-propensity’ evidence – to place otherwise inexplicable evidence in context; or to explain the complainant’s or accused’s conduct – ‘lies in its capacity to assist in evaluating the evidence of the offence’, while its prejudicial effect ‘is concerned is the risk that the jury will make some improper use of the evidence’ ([19]). There is seldom such a risk when the evidence is sourced from the complainant, especially where the jury is carefully directed on use ([20]) and there is no logical reason why the length of time since the alleged events will increase this risk ([21]).

The joint judgment held that the evidence offered to support the count of persistent sexual abuse, although inadequate for that purpose, was important to the evaluation of the two counts of rape. “In the absence of evidence that the abuse of VW as a child had continued with periodic incidents of forced sexual intercourse, her account of those offences might be thought also to strain credulity” ([59]). Similarly, most of the evidence the prosecution offered of abuse of the complainant by the accused and his brother when they were children, while inadequate to support a conviction given the law on child criminality, was ‘eloquent’ of the accused being schooled in inappropriate sexual behaviour and of their ‘highly dysfunctional family’, without which the complainant’s evidence of later abuse ‘was likely to have presented as implausible’ ([54]). The pattern of the accused and his brother demanding that the complainant ‘give us a root’ in their early childhood ‘was important to understanding [the complainant’s] account of the incidents of abuse leading up to and including the’ carnal knowledge offence ([57]). Likewise, the complainant’s ‘evidence of her mother’s inappropriate response to her complaint’ about the earlier incidents is also important to understanding her evidence of the later incidents, where she did not complain ([58]). The joint judgment concluded that it ‘is not apparent’ that the evidence of early abuse instigated by the accused’s brother ‘gave rise to a risk that jurors would be inflamed against him such that they might ignore the direction to act on the evidence and not to permit prejudice or moral judgments to influence their deliberations’ ([60]).

The joint judgment ruled that evidence of the earliest incident of sexualised behaviour by the accused against the complainant – where the six-year old accused allegedly pushed his foot against the three-year old complainant’s vagina while they were both in a bath – was ‘not probative of the appellant’s capacity to bear criminal responsibility for the offence charged in count one, nor was it probative of any relevant feature of the relationship between’ the two ([50]). However, no objection was taken to this evidence, its admission ‘was not a wrong decision on a question of law’ and it did not ‘occasion a miscarriage of justice in circumstances in which the trial judge’s comments were apt to neutralise’ its impact ([52]).

Finally, the joint judgment held that the admission of evidence of charged offences that could not support a conviction of those offences did not cause a miscarriage of justice. ‘There is no reason to consider that’ the jury’s unsupported finding that the accused understood that his conduct at age ten was wrong ‘infected its consideration of the remaining counts, which charged offences when he was aged 17 years and older’ ([61]). The fact that that incident was the sole occasion when there was independent corroboration of the event (from a witness to it) was not prejudicial, as the jury could properly used that corroboration to support the complainant’s credibility ([62]). Lastly, ‘[t]he trial of the remaining counts did not miscarry because the jury rejected the [accused’s] evidence on counts which were properly joined and on which verdicts of guilty were returned which were later set aside’ ([63]).

As a result, the joint judgment ordered the dismissal of the accused’s appeal against his convictions for carnal knowledge and two rapes.

High Court Judgment [2018] HCA 48
Result Appeal dismissed
High Court Documents Johnson
Full Court Hearing [2018] HCATrans 121
Special Leave Hearing [2018] HCATrans 31
Appeal from SASC [2015] SASCFC 170
Trial Judgment
District Court of South Australia, Beazley J and jury, 26 March 2015.
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About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.

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