IMM v The Queen - [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:

I agree that the appeal should be dismissed for the reasons expressed by Kelly J.
KELLY J:
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 1998. The offences allegedly committed between 2002 and 2010 were:
(1)indecent dealing with a child under 12 (touching the child’s vagina while the child was in the bath, when the child was aged about 4);
(2)indecent dealing with a child under 12 (rubbing his penis on the outside of her vagina, when the child was aged about 5);
(3)sexual intercourse with a child under 16 (cunnilingus, when the child was aged about 6); and
(4)indecent dealing with a child under 16 (rubbing his penis on the outside of her vagina, when the child was aged about 11).
After a trial in the Supreme Court, a jury found the appellant not guilty of count 1 and guilty of the other offences.
The appellant has appealed against his conviction on the basis of the alleged wrongful admission of evidence. The grounds for appeal are as follows:
(1)Ground 1: The trial judge erred in admitting evidence of previous representations made by the complainant, namely complaints to a friend SS and to members of the complainant’s family, SW (her aunt), SC (her grandmother) and KW (her mother).
(2)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, namely the complaint evidence which was the subject of Ground 1.
(3)Ground 3: The trial judge erred in admitting tendency evidence, namely evidence of an incident after the charged acts in which the appellant ran his hand up the leg of the complainant.
Ground 1
(a)The evidence of SS
The complainant stated in evidence that the complaint she made to SS was made before the complaints made to her aunt, grandmother and mother in August 2011. However, the defence contended that the evidence of SS was to the effect that the complaint to her was made after those complaints and that, as a result, the probative value of the evidence was low and it should be excluded under s 137 of the Evidence (National Uniform Legislation) Act (“UEA”).
The learned trial judge held that she was unable to make the finding that the complaint to SS was made after the other complaints and accordingly admitted the evidence. In my view the learned trial judge was correct in so finding. The preponderance of the evidence points to the complaint to SS having been made before any complaint to family members.
(a)The evidence of SS was that the conversation occurred at the end of 2010 or the beginning of 2011 before SS’s birthday in June 2011.
(b)SS’s evidence is that the complainant rang her one night crying because her grandparents were splitting up and that it was during this conversation that the complainant told her that her grandfather had touched her.
(c)There is no dispute that the grandparents split up in the later part of 2010.
(d)There is no dispute that the complaints to family members occurred in August 2011, and that the matters were reported to police shortly thereafter.
(e)SS stated that the conversation occurred when the complainant’s grandmother was in hospital.
(f)The clear evidence at the trial was that the grandparents separated at the time that the grandmother was in hospital in October or November 2010.
(g)The only thing that suggested a later time is SS’s evidence that during that telephone call the complainant told her that she had just told her mother. The complainant’s evidence is that this did not occur.
In the circumstances, given the overwhelming weight of the objective evidence suggesting the complaint to SS occurred at the earlier time, her Honour was correct to admit the evidence and leave this matter to the jury.
Essentially the appellant’s whole case in relation to this ground of appeal depended on assertions made by SS during cross-examination in which she agreed with the proposition that the complainant had told her in the complaint conversation that she had already told her mum and her nanna. The appellant’s submission was that this “put beyond doubt” that the conversation occurred after the complaint to the family members. However that contention cannot stand in light of all of the objective evidence to the contrary.
Section 137 requires the exclusion of evidence if its probative value is outweighed by the danger of unfair prejudice to the defence.
The appellant submitted that a danger of unfair prejudice arose from the fact that the Crown did not re-examine the witness SS on that aspect of her evidence. The prosecutor, in closing address to the jury, suggested that one explanation for the discrepancy between the evidence of SS and the complainant on this point might be that there were two telephone calls, one in which the complainant made the first disclosure and a later one in which the complainant told SS that she had just told her mum and grandma about what had happened. It was submitted that this was unfair in light of the fact that this possibility was not put to SS by the prosecutor in re-examination.
In my view the fact that the witness was not re-examined on this point does not in any way raise an unfair prejudice to the accused. The evidence of SS was clear. However, the Crown asked the jury to find that she may have been mistaken on that particular point as her evidence on that point was inconsistent with the remainder of her evidence relating to the timing of the disclosure – and with the evidence of the complainant as to that aspect of the content of the conversation. The appellant received the forensic advantage of raising with the jury the inconsistencies of SS’s evidence with the complainant’s evidence on this point in an attempt to discredit the complainant.
I agree with the submission of the respondent that the probative value of the evidence of SS was strong. SS was the complainant’s best friend and the first person she spoke to about what her grandfather had done. The disclosure occurred at the time of the break-up of her grandparents. The complainant was asked in evidence why she had not complained before this. She said she did not want to break up the family. The fact that the first disclosure came almost immediately after the break-up of her grandparents gives it significant probative value. The attack on its probative value by the appellant relates solely to the timing of the complaint. As I have found that her Honour’s finding of fact in relation to the timing was correct, this ground must fail.
(b)The complaints to aunt, mother and grandmother

The appellant contends that evidence of complaints to the aunt, mother and grandmother should also have been excluded under s 137.
The complaint to the aunt was made in circumstances where the aunt was remonstrating with the complainant in relation to her behaviour.
The aunt’s evidence was that the complainant told her, “The things you are trying to protect me from have already happened”.
The evidence of the grandmother was that the aunt asked the complainant whether IMM (the appellant) had been touching her and the complainant said that it had been happening since she was little.
The mother’s evidence was that she had asked the complainant how long this had been going on and the complainant answered, “From when I was little, about four”.
The mother said she asked, “How often did this go on?” and the complainant answered, “Every day Mum, every day”. She said the complainant told her that the last time it happened was “when Nana got off the plane from Adelaide”.
The mother said she had asked, “What did he used to do? Did he touch you? Did you have your clothes on or off?”
She said the complainant answered, “I was naked”, and that the complainant was crying while she was talking.
The mother said she had asked, “What about Pop? Did he have his clothes on or off?” and that the complainant had said, “He was naked”.
The mother said she had asked the complainant, “What did yous used to do?” and that the complainant had said, “He used to lay on top of me and squash me, I don’t know what he used to do, I used to just lie there”.
The mother said she had asked, “Was he trying to have sex with you?” and that the complainant didn’t speak, she shrugged her shoulders at her mother.
The mother said she had asked, “Did he penetrate you?” at which the complainant just looked at her mother, and that she had asked, “Did he stick his finger in you? Did he stick his dick in you?” in response to which the complainant said, “No”, and kept on crying.
The mother said she had told her daughter, “It’s alright, you can tell me, when did he do it?” She said the complainant responded, “He even did it when you were there, he was always touching us, me and Hunter. That’s why I used to run to Hunter when he called I’m finished when he was on the toilet”.
The appellant contended that none of the allegations made by the complainant to her mother referred specifically to any of the counts on the indictment.
The respondent countered that the disclosures referred specifically to the age of the complainant when the offending started, namely four years of age, which was directly referrable to the timing of count 1 on the indictment said to have occurred on the complainant’s fourth birthday. Further, the description of the accused lying on top of the complainant naked squashing her was consistent with the conduct the subject of counts 2 and 4 on the indictment. I agree that the disclosures to the mother are referrable to the counts on the indictment, both as general disclosures of sexual misconduct by the appellant, and also as including details consistent with individual charges.
The respondent submitted that KW’s evidence of the complainant’s disclosures to her had significant probative value. It contained far greater detail than the complaint to the friend SS and the complainant showed clear and significant distress when making the disclosures. This distress is a significant matter when assessing whether the events were fresh in the memory of the complainant for the purposes of s 66 of the UEA and would also have been a significant matter for the jury when assessing the weight to be attached to the evidence. Counsel for the respondent submitted it was clear that the complainant’s vivid recollection of the conduct is what made it so difficult for her to recount what had happened to her family. Again, I agree.
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.
The respondent contends that the learned trial judge’s direction that they could use the complaint evidence as “some evidence that an offence did occur” is a correct statement of the use of the evidence pursuant to s 66 which provides (relevantly):
(1)This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2)If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by:
(a)that person; or
(b)a person who saw, heard or otherwise perceived the representation being made;
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation.
The respondent contended that the use which can be made of evidence admitted under s 66 is not dependent, as alleged by the appellant, on the specificity of the complaint. That is a matter of weight to be assessed by the jury.[1]
I agree with the substance of the respondent’s submissions. As outlined above, the disclosures by the complainant to the aunt, grandmother and mother are referrable to the counts on the indictment. The submissions of the appellant assume, wrongly, that if the complaints were of a general nature, they must necessarily refer only to the uncharged acts. This, of course, does not follow. The fact that the disclosures made by the complainant to her friend and family might have been in general terms such as they might also apply to conduct other than that the subject of the specific charges, does not mean that they cannot be used by the jury as “some evidence” that an offence did occur as provided for in s 66.
In my view her Honour’s directions to the jury were appropriate.
Further, in the passages set out above her Honour gave strong appropriate warnings about the use to be made of evidence of sexual misconduct which was not the subject of any of the charges before them and which, in my view, the jury would have understood to apply to all evidence of uncharged acts.
Ground 3: The trial judge erred in admitting tendency evidence
The learned trial judge admitted evidence by the complainant that the appellant had run his hand up her leg during a massage at a time after the conduct constituting the offences with which the appellant was charged. Her Honour ruled that the evidence had significant probative value for the purpose of using it as tendency evidence pursuant to s 97. Her Honour directed the jury that they could use the evidence “to prove that the [appellant] had a sexual interest in the [complainant]”.
The appellant contended that this evidence should not have been admitted pursuant to s 97. Section 97(1) provides (relevantly):
(1) 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:
…
(c)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 appellant submitted that this evidence could not be said to have significant probative value, chiefly because the evidence came from the complainant and not from an independent source. Counsel for the appellant relied on Qualtieri v The Queen for this proposition:[2]
“[T]he complainant’s account of the relationship would rarely have sufficient probative value to overcome the precondition of admissibility … Evidence of the accused’s sexual interest in the complainant will usually be found outside of the complainant’s evidence, such as in a letter written by the accused to the complainant or some other act of the accused that shows a sexual interest in the complainant or children generally.”
Similarly, in Huges (a Pseudonym) v The Queen,[3] Coghlan JA observed at [41]-[42] that evidence from the complainant in a child sexual abuse trial that the accused had committed a similar uncharged act on another occasion would not have “any probative value”, since “[r]ebuttal cannot flow from an assertion from the person whose credit is fundamentality in issue in the trial” (see also Lasry AJA at [55]).
The appellant submitted that it could not be said that this evidence was important or of consequence in the case. Absent any corroboration the jury would be dependent on an assessment as to the complainant’s credibility and there was nothing about this allegation which distinguished it from the allegations which founded the charges so far as the complainant’s credibility is concerned.
The respondent contended that evidence that the appellant had touched his young granddaughter by running his hand up her thigh while she was giving him a massage clearly possessed the capacity to show that he had a sexual interest in the child. Further, it was submitted that this incident had a strong temporal nexus with the charged acts, occurring as it did very shortly before the breakdown of the relationship between the accused and the complainant’s grandmother, and in circumstances where the sexual misconduct is said to have occurred up until that point. It was submitted that lack of any corroboration was a matter of weight for the jury and not of admissibility.
I agree. 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. HML v The Queen[4] concerned an accused charged with sexual offences against a child complainant (in which absence of consent was not an element). The trial judge allowed evidence from the complainant that the appellant had sexually abused her on previous occasions, despite the absence of corroborating evidence. On the appeal to the High Court, Heydon J, said:[5]
“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. This process did not elevate one part of the complainant’s testimony over another.”
HML was concerned with the admissibility of tendency evidence at common law, but the principles to be applied for the purpose of assessing admissibility under s 97 are not materially different. There is no general rule that evidence cannot be admitted pursuant to s 97 if its sole source is the complainant. Each case must be considered on its own facts and the question asked whether the evidence proposed to be adduced has significant probative value.
Counsel for the appellant made the further submission that even if this evidence was admissible under s 97, it should have been excluded under s 137 as its probative value was outweighed by the danger of unfair prejudice to the appellant, and further that, in assessing the probative value of the evidence, the Court should take into account the reliability of the evidence, which (it was submitted) was small.
The leading case on the meaning of “probative value” for the purpose of s 137 is R v Shamouil.[6] Spigelman CJ (with whom Simpson and Adams JJ agreed) said:[7]
The preponderant body of authority in this Court is in favour of a restrictive approach to the circumstances in which issues of reliability and credibility are to be taken into account in determining the probative value of evidence for purposes of determining questions of admissibility. There is no reason to change that approach.
In my opinion, the critical word in this regard is the word could in the definition of probative value …., namely, “the extent to which the evidence could rationally affect the assessment …”. The focus on capability draws attention to what it is open for the tribunal of fact to conclude. It does not direct attention to what a tribunal of fact is likely to conclude. Evidence has “probative value”, as defined, if it is capable of supporting a verdict of guilty.
His Honour went on to remark:[8] “To adopt any other approach would be to usurp for the trial judge critical aspects of the traditional role of a jury.” I agree.
Counsel for the appellant pointed to Victorian and Tasmanian authority on the admissibility of evidence under ss 98 and 101 (relating to co-incidence evidence) which, it was submitted, took a broader view, holding that the possibility of joint concoction might be taken into account when assessing the probative value of evidence sought to be led as co-incidence evidence.[9] It was contended on behalf of the appellant that it was not possible to reconcile this line of authority with the prevailing approach in New South Wales represented by R v Shamouil.[10]
I am not convinced that these two lines of authority are irreconcilable if one takes a purposive approach to the different provisions of the Act. For example, it stands to reason that the possibility of mutual concoction must affect the probative value of co-incidence evidence, by the very nature of that evidence. It is less clear why the trial judge should enter into the territory traditionally reserved for the jury for the purposes of the application of the exclusionary rule in s 137 although even in relation to that section, the door is not entirely closed to some such assessment, as was recognised by Spigelman CJ in R v Shamouil. He said:[11]
This conclusion [ie that evidence had probative value if it is capable of supporting a verdict of guilty] is reinforced by the test that evidence must “rationally affect”[12] the assessment. As Gaudron J emphasised in Adam,[13] a “test” of “rationality” also directs attention to capability rather than weight.
There will be circumstances … where issues of credibility or reliability are such that it is possible for a court to determine that it would not be open to the jury to conclude that the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. [emphasis added]
Short of that, it seems to me that in assessing whether evidence should be excluded under s 137, evidence has “probative value”, as defined, if it is capable of supporting a verdict of guilty and questions of credibility and weight are matters for the jury. In any event, I do not agree that there are credibility issues which affect the probative value of this evidence. The case against the appellant depended upon the jury’s assessment of the complainant’s credibility and no reason has been advanced as to why her credibility in relation to this evidence should be judged to be less than any other aspect of her evidence.
It is not clear to me precisely what danger of unfair prejudice to the defendant it is alleged occurred as a result of the admission of this evidence. In my view, the trial judge was not in error in failing to exclude this evidence under s 137.
In my opinion, the appeal should be dismissed.
HILEY J:
I agree that the appeal should be dismissed for the reasons expressed by Kelly J.

[1] See LMD v The Queen [2012] VSCA 164, [24]-[26] (Harper JA)

[2] (2006) 171 A Crim R 463, [118]

[3] [2013] VSCA 338

[4] (2008) 235 CLR 334

[5] at [280]

[6] (2006) 66 NSWLR 228

[7] at [60]-[61]

[8] at [64]

[9] The court was referred to Tim Smith and Stephen Odgers, ‘Determining ‘probative value’ for the purposes of section 137 of the uniform evidence law’ (2010) 34 Criminal Law Journal 292, and the authorities cited therein.

[10] Supra n 6

[11] at [62]-[63]

[12] Section 55

[13] The reference is to Adam v The Queen (2001) 207 CLR 96 at [60]