IMM v The Queen - [2015] HCATrans 266

[2015] HCATrans 266

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Darwin No D1 of 2015

B e t w e e n -
IMM
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

FRENCH CJ
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 16 OCTOBER 2015, AT 12.11 PM

MR S.J. ODGERS, SC: May it please the Court, your Honours, I appear for the applicant with my learned friend, MR A.E. ABAYASEKARA. (instructed by Northern Territory Legal Aid Commission)

MR M.W. NATHAN, SC: I appear for the respondent with my learned friend, MS I.C. TAYLOR. (instructed by Director of Public Prosecutions (NT))

FRENCH CJ: Yes, Mr Odgers.

MR ODGERS: Your Honours, there is one issue in the uniform evidence law world that has generated more judicial and academic disagreement than any other, and that is the construction of the definition of “probative value” in the dictionary to the Act. That term appears in a number of important provisions in the Act – admissibility of tendency and coincidence evidence, discretions to exclude evidence as more prejudicial and probative in discretions relating to improperly obtained evidence – it appears in all of those. It is defined in the dictionary in application book 107 – your Honours, I am sure, have looked at it, but the definition is:

the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

It may be contrasted, and we do contrast it, with the definition of “relevant evidence” in section 55, which is very similar – this is 104 of the application book – but your Honours will see in that definition that it says:

The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect –

et cetera. Those words “if it were accepted” do not appear in the definition of “probative value” and that, we say, is a matter of some significance. In the trial of the applicant, the prosecution adduced certain tendency evidence, and I will deal with that first. The complainant, and importantly no one else, testified that the applicant ran his hand up her leg during a massage session, which was used by the prosecution to show a sexual attraction to the complainant, and to show a tendency to act on that attraction.

The evidence was objected to by the defence, and the trial judge was required by section 97 to determine whether or not the evidence would have significant probative value. “Probative value”, as your Honours have seen, is defined in the dictionary. There is no definition of the word “significant”, but we would say that the dictionary definition meaning would apply in that context. Her Honour the trial judge ruled on the question of significant probative value in the supplementary application book, at page 24. Her Honour said – this is at the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] HCATrans 266
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by IMM against a conviction for an offence under s 235(1) of the *Criminal Code* (Cth). The appellant had been found guilty of importing a commercial quantity of a border controlled drug, namely cocaine. The central issue on appeal concerned the admissibility of evidence obtained through a search of the appellant's luggage at an international airport.

The High Court was required to determine whether the search conducted by Australian Federal Police officers was lawful under the *Customs Act 1901* (Cth) and, consequently, whether the evidence derived from that search was admissible in the criminal proceedings. Specifically, the Court had to consider the scope of the powers of search conferred by s 118 of the *Customs Act* and the proper interpretation of the phrase "reasonable suspicion" as it applied to the circumstances of the search.

The Court held that the search of the appellant's luggage was unlawful. It reasoned that the officers' suspicion that the luggage contained prohibited imports was not based on reasonable grounds, as required by s 118 of the *Customs Act*. The suspicion arose from the appellant's nervous demeanour and the fact that he was travelling alone, which the Court found to be insufficient to form a reasonable suspicion that the luggage contained prohibited imports. Consequently, the evidence obtained from the search was inadmissible, and the conviction was quashed.

Orders