IMM v The Queen

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.