Contextual Value of Evidence in Sexual Offence Case: Johnson v The Queen [2018] HCA 48

On 17 October 2018, the High Court unanimously dismissed an appeal in the case of Johnson v The Queen [2018] HCA 48. The case concerned convictions for historical sexual offences, and whether the evidence of alleged sexual misconduct was admissible on the trial of certain counts. The High Court unanimously found that the impugned evidence had relevance in its connection to the family background in which the complainant and appellant were raised.

Background to Case

The appellant, Johnson, was tried in the District Court of South Australia in March of 2015, charged with five counts of sexual offences against his sister VW when they were both children. The first count was particularised as occurring when the appellant was aged 11 or 12 years, and the second count was particularised as happening when the appellant was 17 years old. The remaining counts constituted of alleged offences that took place when the appellant was an adult. The prosecution adduced this evidence from VW of the alleged sexual offences from when she was three years old. Based on that evidence, three incidents were alleged to have occurred prior to the commission of the first offence when the appellant was 11 or 12 years old. The prosecution adduced this evidence in order to rebut the presumption of doli incapax, which is a rebuttable common law presumption that the appellant did not possess the requisite criminal intention due to his age being between under 14 years. The appellant was between six and ten years old at the time of these particular incidents. The jury returned guilty verdicts on all the counts.

Following this judgement, the appellant appealed to the Court of Criminal Appeal in the South Australian Supreme Court. The Court of Criminal Appeale allowed this appeal in relation to the first and third counts, holding the evidence adduced in support of the first count was incapable of rebutting the presumption that the appellant was doli incapax at the time, and the evidence adduced in support of the third count was too sparse to determine whether the sexual offence occurred. The Court quashed the verdicts on the first and third counts. However, the Court allowed the joinder of the first and third counts, stating that the evidence adduced in relation to these counts was ‘relationship evidence’ for contextual purposes.

The appellant was granted special leave to appeal in the High Court on 16 February 2018 on two grounds: that the joinder of the first count was a miscarriage of justice, and secondly, the joinder of the third count was a miscarriage of justice. Alternatively, a ground of appeal was that the trial miscarried due to one or more of the following: the evidence was not led and the jury was not instructed properly, the jury treated the evidence in relation to it having a status which it did not relate to, and also the verdict on count one involved the rejection of the appellant’s sworn account.

Decision of the High Court

The High Court unanimously dismissed the appeal, finding that the whole of the evidence of the sexual offences committed by the appellant was admissible due to the fact that the evidence was relevant to contextualise and understand the dysfunctional family situation of both the appellant and the respondent. This background needed to be contextualised and understood in order to understand the importance of the complainant’s evidence of the remaining offences in the other counts. Given this, the impugned evidences’ probative value substantially outweighed the prejudicial effect on the appellant.

Chief Justice Kiefel and Justices Bell, Gageler, Nettle and Gordon formulated the assessment of the probative value as per the Uniform Evidence Acts:

They stated that the relevance of the evidence of earlier incidents was crucial to understanding the family environment within which both appellant and respondent were raised:

The court found that the evidence in question was highly relevant in contextualising the respondent’s evidence and is necessary to render the remaining evidence on the other counts plausible: ‘Without an understanding of this background, VW's evidence of the offences charged in the remaining counts was likely to have presented as implausible.’ [54]

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Johnson v The Queen [2018] HCA 48, and judgement summary.