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

Copyright in the High Court of Australia

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 top of the page:

In my view the evidence from the complainant that the accused ran his hand up the complainant’s leg during a massage does possess the quality “significant probative value” . . . This is on the assumption that I am required to make that the jury accept the evidence . . . If accepted, it is capable of demonstrating an inappropriate sexual interest –

We say that that was erroneous.  It is erroneous to assess probative value premised on an assumption that the evidence will be accepted.  I have drawn your Honours’ attention to the definition of “relevant evidence” and the contrast with the definition of “probative value”.  We say that if you do not make that assumption in this case, that the only possible conclusion was that the evidence lacked significant probative value because it could not have a significant bearing on the probability that the complainant had been assaulted as she claimed in respect of the specific counts, because the tendency came exclusively from her.

BELL J:   If you go back to Justice Gaudron’s approach in Adam, I think her Honour asked how could proof of a matter rationally affect the probability of the existence of a fact in issue if it were not accepted?  There may be a difference between acceptance and, in that instance – I have in mind, for example, the fact that this Court held in Phillips, albeit for the purposes of the common law, that one assesses the admissibility of similar fact evidence upon a view that the evidence will be accepted.  That may be distinct, perhaps, from a consideration of reliability.

Now, just looking at what happened in this case with this trial judge’s ruling, it was no more than to say “I will address the question of significant probative value for the purposes of 97 upon a view that the complainant’s evidence is accepted.  Upon that view, does it have significant probative value?”  Some of the debate that has taken place is on a view with a rather different consideration to weighing reliability.

MR ODGERS:   Yes, I accept that, your Honour.  The debate has looked at questions of reliability, and that is more relevant to 137, which I will come to in the complainant evidence.  But responding to your Honour, firstly, what Justice Gaudron said, we do not accept that it is correct.  It was only obiter in that decision; the Court itself did not endorse it, as she was in dissent, I should say, in that case.

The literature, as your Honours appreciate – there is a variety of views that have been expressed on these questions over time.  But at the end of the day, we say, looking at the definition itself, applying the words themselves, without assumptions, without making any kind of view based on what the common law was, that if you ask the question very simply, could a rational fact finder regard the allegation by the complainant in respect of this other incident as having a significant bearing on the probability that the accused committed the offences charged?  The answer is it came exclusively from her; her credibility is in issue.  The fact that she said that does not make it any more likely that what she said about the offences charged is true; no, it could not have a significant bearing.

So my submission to your Honour is, applying the words, there is a very strong case – a question of importance, we say, at least arguable, that the evidence did not meet the requirements of significant probative value, that the approach of the judge to assume the truthfulness of what was said pretty much determined the question adversely to the applicant, but raises a real question of construction and of general importance.  That is my response to your Honour.

We say that apart from the propositions, the reliance on the contrasting definition of “relevance”, there is authority in New South Wales in relation to these kinds of cases.  For example, there are decisions where it has been said if there is no corroboration; it comes only from the complainant – they referred to it in JLS, which is a Victorian case, where it was said how can it have significant probative value?  That proceeds on the premise, which we say is the correct one, that you do not assume it is truthful.

Of course, also, I would point out, your Honours, that it is well‑established authority that in respect of 98, coincidence evidence, the risk of concoction is a factor that is said to justify exclusion of the evidence because it does not have significant probative value.  If you assume the truthfulness of the evidence of the complainant, then you would not go down that route.  So again, that authority, we say, supports a proposition that it is erroneous to proceed on the assumption that the witness’s testimony is truthful, and that this case provides a suitable vehicle for considering that issue.

Can I turn to the complaint evidence?  One of the arguments supporting exclusion under section 137 of the Evidence Act – of the evidence of the complaints made to the aunt, the grandmother and the mother – was that the probative value of the evidence was low because of the circumstances in which the complaints were made.  They were made in circumstances where she was being disciplined, she was in trouble, she was upset at that, and also, they were initially made in response to leading questions. 

These are all matters which were relied on as an argument for exclusionary discretion – sorry, it is not appropriate to call it a “discretion”; it is mandatory, but it is a balancing exercise.  The trial judge applied New South Wales authority at supplementary appeal book 11 – can I just take your Honours to that, and what the trial judge said?  This is in paragraph [29]:

Further, the enactment of s 137, as with the common law Christie discretion, does not involve considerations of the reliability of the evidence when considering its “probative value”.  The evidence is to be “taken at its highest” in order to determine its probative value.  Even prior to the UEA, the term “probative value” included an assumption that the evidence would be accepted –

So her Honour the trial judge has applied the same analysis, an assumption that it would be accepted, and has specifically referred to New South Wales – your Honours are familiar with it, Shamouil – that considerations of reliability are essentially not to be taken into account, except in certain exceptional circumstances, when assessing probative value.

This was challenged in the Court of Criminal Appeal.  The court found no error in the application of 137.  It does raise a question of general importance.  There is a divergence of views around the country – your Honours appreciate that the Victorian Court of Appeal in Dupas held that Shamouil was manifestly wrong – and it is appropriate to look at considerations of reliability when it is applying section 137.  There is again a divergence of academic opinion on this issue.  It is a very clear issue of general importance, and we say ‑ ‑ ‑

BELL J:   You would need, would you not, in order to succeed on this, to establish that had the judge adopted what I take you embrace the Dupas approach, it would have led to a different ‑ ‑ ‑

MR ODGERS:   Might have led.

BELL J:   Might have led, yes.  You would need to ‑ ‑ ‑

MR ODGERS:   That would be the burden.

BELL J:   You rely on common law considerations that used to trench on the admission of complaint evidence as the basis for saying that 137 compelled ‑ ‑ ‑

MR ODGERS:   Your Honour, I do not accept the proposition that it compelled it, but I would say that it would have been – if you take into account considerations of reliability, it would have been open to a judge to have excluded.  That is the test, I submit, should be met.  But it is also important to appreciate that we ran in the Court of Criminal Appeal a rather complicated argument about the nature of the complaints themselves, which is not ‑ ‑ ‑

BELL J:   This is the argument about SS and whether she ‑ ‑ ‑

MR ODGERS:   No, no, your Honour, it is not that.  I will try to present it as simply as I can.  The complaints themselves were of a general nature.  He had ‑ ‑ ‑

FRENCH CJ:   They covered more than the charged acts?

MR ODGERS:   That is right.  The judge ruled that the evidence met the test of 66 – it was fresh in the memory – and we do not dispute that.  She had a fresh memory that she had been touched in the past.  She had a fresh memory that he had done various things in the past.  The argument that was advanced in the Court of Criminal Appeal and is advanced here is that when you analyse it carefully, the freshness of the memory related to the history of sexual abuse.  It did not necessarily, or did not ‑ ‑ ‑

BELL J:   Hence your argument that, at its height, it was, as it were, context evidence.

MR ODGERS:   Correct.  If that is right – if that argument, at least, is arguable, and lets us follow it through – if it is only context evidence, then of course it cannot be used more highly than the direct evidence of context evidence.  You have to direct the jury they cannot use it for tendency reasoning ‑ ‑ ‑

FRENCH CJ:   So you engage section 97?

MR ODGERS:   So you engage 97.  If you engage 97, then you have to say the probative value is now rather limited because, in fact, the probative value is only to go to credibility by showing the consistent account, or to be consistent with the allegations now given in the trial.  She in fact gave evidence in the witness box about that anyway, and was allowed to, and it came in as context.  Careful directions were given in respect of that, but not in respect of the complaint evidence – we have made a complaint about that; that is a separate ground.  There is a real risk that the jury would actually focus on the history and use that for tendency reasoning.  We say that was a risk which went to unfair prejudice, but it also bore on the assessment of probative value.  It was a factor that needed to be thrown in.

We would say it is actually quite complicated.  There is actually, properly analysed, a strong argument for concluding that the probative value was not particularly high.  There are dangers with unfair prejudice; a trial judge approaching it correctly could quite properly, we say, and should quite properly exercise the 137 provision to exclude the evidence.  That is the essence, I think, of the argument we make.  The trial judge in fact accepted in her analysis that none of the complaints went to proof of any of the charges.  She said that in her judgment when she was considering all of this.

The only other matter I have to address is the ground relating to the directions.  I have, in effect, covered that.  The Court of Criminal Appeal did not accept the premise of the argument; did not accept that because it was effectively limited to context, they needed an appropriate direction, but said that in any event, the jury would have understood the directions that had been given in respect of context evidence to apply to the complaint evidence.

We take issue with that.  They were a completely separate part of the summing-up.  The judge said when you are looking at the evidence of the complainant in the witness box, effectively, then the evidence that she has given about other uncharged matters should only go to support her credibility and not be used for tendency reasoning.  Then later in the judgment, she comes to discuss complaint evidence, and effectively says give it whatever weight you think appropriate – we say, a very real risk that they would have focused not on it as evidence of charged acts directly, but rather, she has alleged that he has got a history of sexually abusing us; we are told we can give it what weight we think fit; we are persuaded that she must have been telling the truth, that he has done something in the past; we are going to use that to make it more likely ‑ ‑ ‑

BELL J:   Were the jury directed of the necessity to be satisfied of the happening of the events the subject of the indictment as distinct from the evidence, for example, that was given that put those acts in context?

MR ODGERS:   When the directions were given in respect of the context evidence – that is, the complainant’s evidence – they were told “You can only use it in this very narrow way”, and of course, they were told “You cannot use it as evidence to prove the offences charged”, whereas in contrast, when the directions were given about the complaint evidence, they were told they could use it as evidence to prove the offences charged.

BELL J:   They were not told that in terms.  Your point is they were not told – I think there was some ‑ ‑ ‑

MR ODGERS:   I will just go to that, your Honours; page 31 of the application book, in line 20:

you can use evidence of what was said in the complaint as some evidence that an offence did occur.  [You] are entitled to use what was said in a complaint as evidence of the truth of what is alleged –

At the end of that paragraph –

It is a matter for you whether you draw that conclusion in this particular case and so treat the complaints as evidence of the alleged indecent dealings by the accused in addition to the evidence –

So in my submission, yes, they were being allowed to use it to prove the alleged, the charged, indecent dealings.

BELL J:   The risk you identify is, notwithstanding the earlier direction that made clear that it was incumbent on the prosecution to satisfy them of the happening of the particular events charged, they might nonetheless have understood in relation to the complaint evidence that it was enough to be satisfied that that was truthful evidence ‑ ‑ ‑

MR ODGERS:   I am not suggesting for a moment that they could have understood that as that is enough.  You do not have to be satisfied beyond reasonable doubt of what ‑ ‑ ‑

FRENCH CJ:   The difficulty may be that the direction might have been appropriate as a direction concerning a complaint of a charged offence.  The problem that you are pointing to is the complaints covered a course of conduct, as it were.

MR ODGERS:   Yes, that is my point.

BELL J:   Was there a request ‑ ‑ ‑

MR ODGERS:   No, no complaint.  It is not apparent that there was a focus on the problem.  I have been unable to find any case that has looked at this problem where a complaint is expressed in general language.  I do not think it has really arisen before, and if trial counsel did not appreciate the problems that it would create, then I have to live with that.

BELL J:   Yes, yes.

MR ODGERS:   We argued it below, and we did not get anywhere.  May it please the Court.

FRENCH CJ:   Thank you.  Yes, Mr Nathan.

MR NATHAN:   Thank you, your Honours.  Your Honours, if I might address that last point first?  In relation to the issue of the generalised statements of complaint by the complainant – and the Crown’s submission is perhaps almost a reverse line of reasoning – my learned friend seems to suggest that when the complaint made, particularly in relation to the initial disclosure to her friend SS, that there was a general allegation of touching against her grandfather, the accused.

In that sense, in terms of being fresh in the memory and an assessment as to the matters that were in the mind of the complainant at the time of the complaint, to suggest that it is either more likely to relate to generalised specific ongoing sexual conduct, as opposed to the four counts that she was able to particularise and had a sufficient memory in the child forensic interview with police, that seems to ….. a practical assessment of her state of mind.  She clearly had a clearer memory, a fresher memory of the four particularised counts at the time that she was making the complaint because very soon after that, or within months after making that complaint, she was able to particularise those counts to police.

BELL J:   But how can you take from a generalised complaint “Granddad’s been touching me” that that is a complaint referable to the particular events that are challenged?

MR NATHAN:   Certainly.  In terms of the use of that evidence in terms of the specified counts before the court, when an assessment or the consideration of admissibility is done pursuant to section 66, it is an assessment of the court not just of the immediate content of the representation, but it is also the circumstances in which it was made.  For instance, in the – this is in terms of an assessment of probative value.  My learned friend is saying that these generalised statements just cannot possess the sufficient probative value to warrant admission.

BELL J:   I thought you were addressing the last mentioned point, which concerned the failure to confine the use made of the evidence of complaint to context evidence capable of bearing generally on the credibility of her account by putting it in context, and no more.

MR NATHAN:   Certainly.  Perhaps I am labouring this point.  What my submission is, your Honours, is that when you assess the generalised statement to the complaint witness, SS, what was crucial in relation to the use that the jury might make of that statement is not just the words “touched” and the identity of the accused, but also in relation to the timing of it.  A significant plank in terms of attacking the credit of the complainant at trial was the fact that the complaint to her aunty, her grandmother and then eventually her mother were done in response to criticism, and it is a significant matter where she was then attempting to deflect that criticism by creating, or fabricating, the story.

The fact that 10 months at least, on the Crown case, that there was a complaint identifying the accused, identifying indecent dealing, to her friend then becomes significantly probative for the jury, and not just in a general context basis, but also in respect of the individual counts for which they are making the assessment.  When assessing, obviously in terms of issues of credit, for each of the particularised counts, the fact that there was an answer in effect to the attack on her credit by the accused in respect of that issue, that later complaint, then assumed, in the Crown’s submission, significant probative value for the jury in that assessment.

Importantly, your Honours, as perhaps conceded by my learned friend, no application was made pursuant to section 136 to limit the use of this evidence at trial; indeed, particularly at voir dire – and there were three – in the lead-up in to this trial, and admissibility under essentially 66 and then it sought to be excluded under 137, but no attempt was used to confine the use for the Crown to an issue of context, to the issue of what would happen if she was give that evidence viva voce in the witness box.

Your Honours, one other matter in relation to that; if we are talking about assessing significant probative value for the purpose of excluding a complaint, to put an obligation upon a complainant – particularly a child witness who obviously is significantly vulnerable – an obligation to in effect provide the level of detail in a complaint, sometimes for the first time, to a friend or a teacher or a counsellor, that they are going to almost having a quasi-child forensic interview with police and relate such detail as to warrant specific use for each count – and this is for the purpose of admissibility under section 66 – to limit or to restrict or place such an onerous obligation on the complainant is to really go against the experience of the courts, but also ‑ ‑ ‑

FRENCH CJ:   Well, it is a bit pejorative to talk about it as imposing an obligation on a complainant.  It is a question of what use could be made of what is there.

MR NATHAN:   But I understand my learned friend to suggest that because there was that lack of detail in what was her initial complaint to her friend, the timing of which was also relevant not just for the later complaint, but also because it was immediately following the breakup of the accused with her grandmother, there was always a significant issue in relation to the delay in complaint when the offending spanned an eight-year period.  Those surrounding issues, in the respondent’s submission, should be left to the jury in relation to making an assessment of the probability of the existence of facts in issue, in respect of each count.

In terms of my learned friend’s urging of this Court to consider the divide between the Victorian line of authority in Dupas and the New South Wales line of authority in Shamouil, ultimately, in relation to this case, the respondent’s submission is that when assessing all of the circumstances of this case, ultimately this is simply not the vehicle in which that divide needs to be decided or determined.  Even taking a more favourable view, the broader view of the court in Dupas taking into account the issues of reliability – even if you were to take that line of reasoning, in this specific case, the respondent submits that there are not a series of factors which so undermine, or even significantly undermine, the reliability of the complainant to warrant an exclusion of the evidence in any event.  There is simply nothing, in the respondent’s view, that suggests the need, or indeed, the likelihood that there would be a separate outcome in relation to the admissibility of that evidence; both the tendency evidence, and indeed the complaint evidence.

GAGELER J:   Are you saying the outcome could not have been different?

MR NATHAN:   No, your Honour – certainly, the submission that there has been nothing either in the Court of Criminal Appeal or before your Honours today that sets out a significant basis upon which the court could come to a conclusion that even assessing the reliability of the complainant that the evidence should have been excluded.

BELL J:   The argument that is made against you in relation to the tendency evidence in that respect is that if the tendency evidence does not rise higher than a complainant giving an account of some further incident, which it may be accepted – if her account of that incident were believed, would support a view of sexual interest on the part of the accused.  But where the only evidence comes from her, the point, I think, that is being made against you is how does it acquire the significant probative weight that is necessary to pass the first threshold for the admission of tendency evidence?

MR NATHAN:   Your Honour, in answer to that point, the respondent relies upon the comments of Justice Heydon in HML, where the very issue of independence and that term how it should be properly phrased, which was relied upon by Justice Kelly by the Court of Criminal Appeal – her adoption of those comments appear at page 83 of the application book.  In essence, it effectively begins on page 82, paragraph [44].  The finding of her Honour Justice Kelly, which clearly is supported by the remainder of the court:

It is not the case that evidence which comes solely from a complainant necessarily lacks sufficient probative value to be admissible pursuant to s 97.

She goes on to state that – this is at the top of page 83 –

On the appeal to the High Court, Heydon J, said:

“It is true that there is a lack of independence in the sense that all the evidence depended solely on the complainant’s account.  But that does not make the evidence irrelevant or inadmissible.  There is no rule that it had to be corroborated . . . Once admitted, the evidence was capable of being used as an “independent” – a separate – element in a course of reasoning towards guilt.

Now, yes, questions which would affect the charged acts in terms of the jury accepting the evidence of the complainant in the separate consideration would also flow through into an assessment of the uncharged acts.  But that does not remove the significant probative value of that material if accepted beyond a reasonable doubt, which the jury must to take it into account.  As the final line in that quote states:

This process did not elevate one part of the complainant’s testimony over another.”

It is simply a separate independent piece of evidence that a jury is entitled to take into account.  In written submissions, my learned friend relied upon the comments of Justice Howie in Qualtieri to argue that this was quite uncommon or unusual.  Really, the practical reasoning behind that is where there is evidence from the complainant of sexual allegation with sufficient detail and information to make out a charge, it would ordinarily appear on an indictment.  For whatever reason, tactical decisions or the like, that is not the case.  It then still satisfies section 97 to the point where it has that significant probative value.

Your Honours, in relation to the issue – here, I am returning to the issue of the complaint evidence that was raised.  The concerns in relation to the reliability through considerations of section 137 about exclusion – those issues of reliability, because section 66 was such a significant departure from the common law in terms of it being used for the truth of its contents – the legislature, and indeed the content of section 66 itself, has procedural safeguards in-built; firstly, through the fact that the maker of the representation must be available for cross‑examination.  The jury will see that evidence tested through cross‑examination to allow them to make an assessment as to reliability.

BELL J:   If I may interrupt you for a moment; if one goes back to Papakosmas, it was pointed out that one of the safeguards is the provision, or are the provisions, 135 through to 137.  The complaint that is made is that the trial judge made the 137 determination on a legally incorrect basis.  That may be right, it may be not, but it is a matter of some significance viewed in that way.  So to point out that the jury have the opportunity to see the person is not, in a sense, to answer that complaint.

MR NATHAN:   In terms of the issue – obviously, firstly, one of those matters is section 136.  That is, again, not a matter that was applied for in this particular case.  The other issue in relation to that, in Papakosmas ‑ ‑ ‑

BELL J:   But the admission of the evidence was challenged, was it not?

MR NATHAN:   Yes, on the 137 basis.  But in Papakosmas, the complaint in that situation, again, was not a matter where the complainant delved into significant detail – in fact, it was a one‑line complaint.  Yes, it did involve the use of the word “rape”, which has connotations both legally and with the common sense or community understanding, but in that sense, in the respondent’s submission, it did not have the detail that would ordinarily be such a significant piece of evidence if given evidence‑in‑chief.  There would still need to be further detail.

But yet in that, the Court still held that it could be used as some evidence.  Indeed, the use of that phrase “some evidence” – I will just take your Honours to the reference in that decision.  The reference is Papakosmas v The Queen at paragraphs 32 to 33.  There was a reference in that decision where Chief Justice Gleeson and Justice Hayne in the joint judgment referred to the fact that it was a matter where, if I use it in a general sense, the unspecified complaint could still be used as some evidence, direct evidence, of the charged acts.

Her Honour the learned trial judge in giving that direction to the jury did no more than reflect that statement of principle; did not elevate what was, in effect, if it was given directly as context evidence, did not elevate it unfairly or prejudicially to the accused.  It simply made a statement that if that was to be accepted for the truth of its contents, then it can be used directly pursuant to section 66, which is that massive departure from the common law as some evidence of that charged conduct.

FRENCH CJ:   I see the word “hearsay” has been misprinted as “heresy” under the submissions.

MR NATHAN:   Yes, I note that.  The least I say about that, the better, perhaps.  Certainly, your Honours, what the respondent states is that to

compare the use pursuant to section 66 with the use of the direct evidence in the witness box, or in a child forensic interview with police, where the expectation is that the jury are not just entitled, but obliged, to look at all of the detail of this evidence, then make an assessment of whether they believe it beyond a reasonable doubt – to contrast that with a situation where there is a disclosure to a person in a position of trust or friendship, in a general sense, that distinguishes, really, trying to drag impermissibly the common law concerns and restrictions into the Uniform Evidence Act provisions.  Thank you, your Honours.

FRENCH CJ:   Thank you.  Yes, there will be a grant of special leave in this matter.  I would think that this would be encompassed well within a day?

MR ODGERS:   I think a day would be appropriate.

FRENCH CJ:   Do you agree with that?

MR NATHAN:   Yes.

FRENCH CJ:   It is possible that the matter may be listed for the December sittings.  I think if you are both available for those sittings, there is a truncated timetable for submissions which would apply.  Perhaps you can speak to the Registry immediately afterwards, or have your instructors do so.

The Court will now adjourn to reconstitute.

AT 12.48 PM THE MATTER WAS CONCLUDED