IMM v The Queen

Case [2016] HCA 14

HIGH COURT OF AUSTRALIA

FRENCH CJ,
KIEFEL, BELL, GAGELER, KEANE, NETTLE AND GORDON JJ

IMM  APPELLANT

AND

THE QUEEN  RESPONDENT

IMM v The Queen

[2016] HCA 14

14 April 2016

D12/2015

ORDER

1.Appeal allowed.

2.Set aside the order of the Court of Criminal Appeal of the Northern Territory made on 19 December 2014 and, in its place, order that:

(a)the appeal be allowed;

(b)the appellant's conviction on counts 2, 3 and 4 of the indictment be quashed; and

(c)a new trial be had on counts 2, 3 and 4 of the indictment.

On appeal from the Supreme Court of the Northern Territory

Representation

S J Odgers SC with K J Edwards for the appellant (instructed by Northern Territory Legal Aid Commission)

B W Walker SC with M W Nathan SC for the respondent (instructed by Director of Public Prosecutions (NT))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

IMM v The Queen

Evidence – Admissibility and relevance – Evidence (National Uniform Legislation) Act (NT), ss 97(1)(b), 137 – Where appellant charged with indecent dealing with child and sexual intercourse with child – Where tendency evidence given by complainant that appellant ran his hand up complainant's leg – Where evidence tendered of complaints made by complainant concerning appellant – Whether probative value of evidence assessed on assumption that jury would accept evidence – Whether trial judge should have regard to credibility of witness or reliability of evidence in assessing probative value of evidence – Whether evidence from complainant adduced to show accused's sexual interest can have significant probative value.

Words and phrases – "complaint evidence", "credibility", "danger of unfair prejudice", "probative value", "relevance", "reliability", "significant probative value", "tendency evidence".

Evidence (National Uniform Legislation) Act (NT), ss 55, 56, 65, 66, 97(1)(b), 101, 137.

  1. FRENCH CJ, KIEFEL, BELL AND KEANE JJ.   After a trial in the Supreme Court of the Northern Territory, the appellant was found guilty of two counts of indecent dealing with a child and one count of sexual intercourse with a child under the age of 16 years.  The complainant was the appellant's step‑granddaughter.  She alleged a course of sexual abuse which commenced when she was about four years old and continued until her grandmother and her step‑grandfather separated in late 2010, when the complainant was 12 years old.  The complainant's was the only direct evidence of the commission of the offences.  Over objection from the defence, the prosecution was permitted to adduce certain "tendency evidence" and "complaint evidence".

  2. The tendency evidence was given by the complainant and was that while the complainant and another girl were giving the appellant a back massage, he ran his hand up the complainant's leg.  The trial judge (Blokland J) considered that the evidence was capable of showing that the appellant had a sexual interest in the complainant, and that there was a strong temporal nexus between this incident and the charged acts[1].

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IMM v The Queen [2016] HCA 14
Case
[2016] HCA 14
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal from the Court of Criminal Appeal of the Northern Territory concerning the admissibility of certain evidence in a trial for indecent dealing with a child and sexual intercourse with a child. The appellant, IMM, was charged with four offences against his step-granddaughter. The trial judge admitted evidence of a complaint made by the complainant and evidence of an incident where the appellant allegedly ran his hand up the complainant's leg during a massage, classifying this as tendency evidence. The appellant was convicted on three of the four counts.

The central legal issues before the High Court were whether the trial judge erred in admitting the tendency evidence, specifically concerning the assessment of its probative value under section 97(1)(b) of the *Evidence (National Uniform Legislation) Act* (NT). This involved determining whether the probative value of such evidence should be assessed on the assumption that the jury would accept it, and whether the trial judge should consider the credibility or reliability of the witness when making this assessment. The Court also considered the application of section 137 of the Act, which mandates the exclusion of prosecution evidence if its probative value is outweighed by the danger of unfair prejudice.

The High Court held that when assessing the probative value of evidence for the purposes of section 97(1)(b) and section 137 of the *Evidence Act*, a judge must assume the evidence will be accepted by the jury. The judge should not consider the credibility or reliability of the witness at this stage, as the focus is on the potential of the evidence to rationally affect the assessment of probabilities. The Court found that the trial judge had erred in admitting the tendency evidence, as its probative value was not significant enough to outweigh the danger of unfair prejudice, particularly given the potential for the jury to be unduly influenced by the nature of the alleged conduct.

Consequently, the High Court allowed the appeal, quashed the appellant's convictions on counts 2, 3, and 4 of the indictment, and ordered a new trial on those counts.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order of the Court of Criminal Appeal of the Northern Territory made on 19 December 2014 and, in its place, order that:

(a) the appeal be allowed;

(b) the appellant's conviction on counts 2, 3 and 4 of the indictment be quashed; and

(c) a new trial be had on counts 2, 3 and 4 of the indictment.

Background

Background to the litigation

Before proceeding further, it is important to be clear about what is meant by "credibility" and "reliability" in this context. At common law, a distinction was ordinarily drawn between the two concepts[84]. The credibility of a witness was commonly understood as meaning the "truthfulness" of the witness – whether the witness genuinely believed that he or she was telling the truth. Reliability, on the other hand, referred to the ability of the witness accurately to discern and relay the truth as to an event, including the witness's ability to observe and remember facts. For example, if an event occurred a long time ago, that might affect the reliability of the witness because it is generally accepted that memory is prone to fade over time. Credibility and reliability are used in those senses throughout these reasons.[84]See Dupas v The Queen (2012) 40 VR 182 at 253-255 [260]-[266]; R v XY (2013) 84 NSWLR 363 at 377 [49] per Basten JA.The facts The appellant was charged with the following four offences which it was alleged he committed on his step‑granddaughter ("the complainant"): (1)On or about 12 June 2002, indecent dealing with a child under 16 (touching the child's vagina while the child was in the bath, when the child was aged about four);(2)Between 1 January 2004 and 13 June 2004, indecent dealing with a child under 16 (rubbing his penis on the outside of the child's vagina, when the child was aged about five);(3)Between 1 December 2004 and 31 January 2005, sexual intercourse with a child under 16 (performing cunnilingus on the child, when the child was aged about six);(4)On 2 November 2009, indecent dealing with a child under 16 (rubbing his penis on the outside of the child's vagina, when the child was aged about 11). Following a trial in the Supreme Court of the Northern Territory, the appellant was found not guilty of count 1 but guilty of the other counts. Context evidence The events leading up to the trial began when the complainant made a complaint to family members in August 2011 and the police were informed. The police conducted interviews with the complainant on 31 August 2011, 3 September 2011 and 27 January 2012. The first two interviews were admitted as part of the complainant's evidence at the trial. The Crown alleged that the charged acts occurred during a continuing course of sexual abuse (during occasions when the appellant had access to the complainant) beginning when the complainant was about four years old and continuing until the end of the relationship between the appellant and the complainant's grandmother, when the complainant was 12 years old. The complainant's evidence of that history of sexual abuse was admitted, without objection, as "context evidence" and the jury were directed as to the limited way that context evidence might be used. Tendency evidence In the police interview conducted on 31 August 2011, the complainant stated that, sometime after the last of the charged incidents, she and another girl were giving the appellant a back massage and "[the appellant] ran his hand up my leg" ("the massage incident").

Evidence

Evidence Before The Court

An appeal from the appellant's conviction was dismissed by the Court of Criminal Appeal of the Northern Territory[4].[4]IMM v The Queen [2014] NTCCA 20 (Riley CJ, Kelly and Hiley JJ).The Evidence Act The Evidence Act is in substantially the same terms as legislation adopted by the Commonwealth[5] and by other States and Territories[6], and to that extent may be said to be uniform.[5]Evidence Act 1995 (Cth).[6]Evidence Act 1995 (NSW); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); and Evidence Act 2011 (ACT). The structure of the Act generally follows the order in which issues as to evidence arise at trial. Chapter 3, which deals with the admissibility of evidence, commences in Pt 3.1 with the question of the relevance of evidence. Section 55(1) provides:"The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding." Section 56(1) provides that:"Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding." Certain exclusionary rules are stated in the Parts that follow, by which relevant evidence is rendered inadmissible. Part 3.2 deals with the hearsay rule, Pt 3.3 with the opinion rule, Pt 3.6 with the tendency and coincidence rules and Pt 3.7 with the credibility rule. Exceptions to the exclusionary rules are then provided. Section 97(1) states the tendency rule and par (b) of sub-s (1) the exception to that rule:"Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless:…(b)the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value." The "probative value" of evidence is defined in the Dictionary to the Evidence Act to mean:"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue." A further restriction on the admissibility of tendency evidence is provided by s 101, which expressly applies to criminal proceedings and in addition to s 97. Section 101(2) provides that tendency evidence that is adduced by the prosecution cannot be used against the defendant "unless the probative value of the evidence substantially outweighs any prejudicial effect it may have on the defendant." For reasons which will later be explained, s 101(2) is not in issue on this appeal. The Evidence Act makes provision[7] for the discretionary exclusion by the court of evidence in certain circumstances. For example, s 135, which applies to both civil and criminal proceedings, provides a discretion to exclude evidence if its probative value is outweighed by certain dangers that the evidence might present. Section 137, which applies to criminal proceedings, is expressed in terms of an evaluative judgment mandating exclusion[8]:"In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."[7]Evidence (National Uniform Legislation) Act (NT), ss 90, 135, 136.[8]Section 138 of the Evidence (National Uniform Legislation) Act (NT) has a similar operation in relation to improperly or illegally obtained evidence.

Decision

Reasons for decision

FRENCH CJ, KIEFEL, BELL AND KEANE JJ GAGELER J NETTLE AND GORDON JJ
The question whether the reliability of the evidence should be taken into account when assessing its probative value is also said by the appellant to reflect a policy concern which guided the formulation of the proposals of the Australian Law Reform Commission regarding evidence in criminal trials[9]. The appellant submits that s 137 provides a final, critical "safeguard" which is to be applied by a trial judge to minimise the risk of wrongful conviction. This was the view expressed by the Court of Appeal of the Supreme Court of Victoria in Dupas v The Queen[10], albeit by reference to the common law.[9]Australian Law Reform Commission, Evidence, Report No 26 (Interim), (1985), vol 1 at 30-32 [58]-[60].[10](2012) 40 VR 182 at 242 [226].Decisions of intermediate appellate courts In R v Shamouil[11], the Court of Criminal Appeal of the Supreme Court of New South Wales (Spigelman CJ, Simpson and Adams JJ) held that a trial judge, in determining the probative value of evidence according to the definition in the Evidence Act 1995 (NSW) ("the NSW Evidence Act") for the purposes of s 137 of that Act, should do so on the assumption that the jury will accept the evidence. A trial judge should not have regard to questions as to the credibility or reliability of the evidence. The Court of Criminal Appeal of the Northern Territory in this case agreed with this approach[12].[11](2006) 66 NSWLR 228.[12]IMM v The Queen [2014] NTCCA 20 at [48]. In R v Shamouil, Spigelman CJ adopted[13] what was said by Gaudron J in Adam v The Queen[14]. Her Honour considered[15] that the definition of "probative value" in the Dictionary to the NSW Evidence Act must have read into it an assumption that a jury will accept the evidence in question because, as a practical matter, "evidence can rationally affect the assessment of the probability of a fact in issue only if it is accepted." Spigelman CJ observed[16] that this approach is consistent with the common law approach to exclusion of evidence under the "Christie discretion"[17]. A trial judge exercising that discretion did not, in assessing whether the probative value of the evidence is outweighed by its prejudicial effect, determine whether the jury should, or should not, accept the evidence. A trial judge did not consider the reliability of the evidence.[13]R v Shamouil (2006) 66 NSWLR 228 at 236 [53].[14](2001) 207 CLR 96; [2001] HCA 57.[15]Adam v The Queen (2001) 207 CLR 96 at 115 [60].[16]R v Shamouil (2006) 66 NSWLR 228 at 236 [49]-[50].[17]As enunciated in R v Christie [1914] AC 545. Spigelman CJ considered[18] that the words used in the definition of "probative value" in the NSW Evidence Act strongly indicated that the same approach was to be taken. The word "could" focused on the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact. This involves what is open for the jury to conclude, not what they are likely to conclude. The test of "rationality" also directs attention to capability, rather than the weight to be given to the evidence.[18]R v Shamouil (2006) 66 NSWLR 228 at 237 [60]-[62].

Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, KIEFEL, BELL AND KEANE JJ, GAGELER J, NETTLE AND GORDON JJ

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