IMM v The Queen

Case [2014] NTCCA 20

IMM v The Queen [2014] NTCCA 20

PARTIES:IMM

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CCA 4 of 2014 (21206228)

DELIVERED:  19 December 2014

HEARING DATES:  25 & 26 September 2014

JUDGMENT OF:  RILEY CJ, KELLY & HILEY JJ

APPEAL FROM:  BLOKLAND J

CATCHWORDS:

EVIDENCE – Evidence (National Uniform Legislation) Act – s 137 – evidence of complaints to a friend and to family members admitted under s 66 - whether evidence of complaints should have been excluded under s 137 – whether trial judge erred in holding that complaint to friend made before complaint to family – on the evidence no error demonstrated – evidence had significant probative value not outweighed by any unfair prejudice to defendant

EVIDENCE  – Juries – Directions – warning against propensity reasoning given in relation to direct evidence of sexual abuse not the subject of a charge – complaints capable of referring to both charged and uncharged acts – trial judge directed jury that evidence of complaints could be used as “some evidence that an offence did occur” – whether this direction in error - whether an additional warning against propensity reasoning should have been given in relation to complaints – no error demonstrated – no additional warning necessary

EVIDENCE – Evidence (National Uniform Legislation) Act – s 97 – evidence of an incident of sexual misconduct against complainant by respondent admitted as tendency evidence under s 97 – whether evidence lacked significant probative value because it was not independent of the complainant - evidence properly admitted under s 97 – evidence not required to be excluded under s 137

Evidence (National Uniform Legislation) Act ss 55, 66, 97, 98, 101, 137

HML v The Queen (2008) 235 CLR 334, applied

Adam v The Queen (2001) 207 CLR 96, referred to

LMD v The Queen [2012] VSCA 164; R v Shamouil (2006) 66 NSWLR 228, followed

Huges (a Pseudonym) v The Queen [2013] VSCA 338; Qualtieri v The Queen (2006) 171 A Crim R 463, not followed

REPRESENTATION:

Counsel:

Appellant:S Odgers SC with A Abayasekara

Respondent:  M Nathan

Solicitors:

Appellant:NT Legal Aid Commission

Respondent:  Director of Public Prosecutions

Judgment category classification:   B

Number of pages:  19

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

IMM v The Queen [2014] NTCCA 20

No. CA 4 of 2014 (21206228)

BETWEEN:

IMM

Appellant

AND:

THE QUEEN

Respondent

CORAM:    RILEY CJ, KELLY & HILEY JJ

REASONS FOR JUDGMENT

(Delivered 19 December 2014)

RILEY CJ:

  1. I agree that the appeal should be dismissed for the reasons expressed by Kelly J.

    KELLY J:

  2. The appellant was charged with one count of sexual intercourse with a child under 16 years and three counts of indecent dealing with the same child.  The child was the young daughter of his step-daughter (that is, his step grand-child) and she was born on 12 June…

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AGLC
IMM v The Queen [2014] NTCCA 20
Case
[2014] NTCCA 20
Decision Date

CaseChat Overview and Summary

The Supreme Court of South Australia, Court of Criminal Appeal, considered an appeal by IMM against his conviction for sexual offences. The appeal concerned the admissibility and use of evidence relating to complaints made by the complainant to her family and friends, as well as evidence of other alleged sexual misconduct by the appellant.

The primary legal issues before the Court were whether the trial judge erred in admitting evidence of complaints made by the complainant to her aunt, grandmother, and mother under section 66 of the *Evidence (National Uniform Legislation) Act* (SA) and whether this evidence should have been excluded under section 137 of the Act due to unfair prejudice. Further, the Court had to determine if the trial judge’s directions to the jury regarding the use of complaint evidence were adequate, particularly in relation to propensity reasoning, and whether evidence of other alleged sexual misconduct by the appellant, admitted under section 97 of the Act as tendency evidence, possessed sufficient probative value.

The Court reasoned that the trial judge did not err in admitting the complaint evidence, finding that its probative value was not outweighed by any unfair prejudice to the appellant. The Court also held that the trial judge’s direction that complaint evidence could be used as "some evidence that an offence did occur" was not erroneous. The Court noted that the complaints were capable of referring to both charged and uncharged acts, and that the trial judge had provided a comprehensive warning against propensity reasoning in relation to direct evidence of uncharged sexual abuse. The Court concluded that no additional warning was necessary in relation to the complaint evidence. Regarding the tendency evidence of other sexual misconduct, the Court found it was properly admitted under section 97 as it had significant probative value and was not required to be excluded under section 137.

The appeal was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In light of those considerations, it cannot be said that the prejudicial effect of the evidence outweighed its probative value and in my view the trial judge was not in error in admitting the evidence of disclosures made to the aunt, grandmother and mother. Ground 2: The trial judge erred in respect of the directions given to the jury about the evidence of previous representations made by the complainant The learned trial judge directed the jury that if they were satisfied of the evidence of complaints to SS, the aunt, grandmother and mother, they could use it as “some evidence that an offence did occur”. The appellant submits that this direction was in error and that further warnings ought to have been given to the jury if this evidence was admitted. In relation to the complainant’s direct evidence of sexual misconduct against her by the appellant which was not the subject of a specific charge, the trial judge ruled that such evidence was not admissible for a hearsay purpose, namely to prove that the appellant did in fact engage in on-going sexual misconduct with the complainant. In summing up, her Honour gave the following warning in relation to this evidence:“The other incidents have been allowed to be led to place the particular charges into the context of her evidence and her account of the whole of the accused’s alleged conduct…… first you must not use this evidence of other incidents as establishing a tendency on the part of the accused to commit offences of the type charged. You cannot act on the basis that [the appellant] is likely to have committed the offences charged because [the complainant] has made these other generalised allegations against him. This is not the reasons that the Crown placed the evidence before you. The evidence has a very limited purpose as I have explained to you, and it cannot be used for any other purpose or as evidence that the particular allegations contained in the charges have been proven beyond reasonable doubt.Secondly, you must not substitute the evidence of these other generalised acts for the evidence of the specific allegations contained in the indictment. The Crown is not charging a course of misconduct against [the appellant], but has charged particular allegations arising in what [the complainant] describes as a course of sexual misconduct, or ‘generalised misconduct’. You are concerned with the particular and precise occasion alleged in each charge. You must not reason that just because [the appellant] may have done something wrong to [the complainant] on some other occasion, he must have done so on the occasions alleged in the indictment. You cannot punish [the appellant] for other conduct attributed to him by finding him guilty of the charges in the indictment. That line of reasoning would amount to a misuse of that particular evidence and would not be in accordance with the law.” The appellant asserts that in relation to the hearsay evidence of the aunt, the grandmother and the mother that uncharged acts had occurred, rather than telling the jury that they could use this evidence as some evidence that an offence did occur, the learned trial judge ought to have given a specific direction similar to the one she gave in relation to the complainant’s evidence of those uncharged acts. The contention of the appellant was that if direct evidence of the history of sexual abuse was not permitted to be used to show a tendency to commit the crimes charged, it must follow that s 97 (the rule relating to tendency evidence discussed below) must operate to exclude hearsay evidence of that history being used for that purpose.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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