R v IMM (No 3) - [2013] NTSC 45

R v IMM (No. 3) [2013] NTSC 45
PARTIES:The Queen
v

IMM (No. 3)

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:21206228
DELIVERED:  7 AUGUST 2013
HEARING DATE:  9 JULY 2013
JUDGMENT OF:  BLOKLAND J
CATCHWORDS:

EVIDENCE – Admissibility – Uncharged Acts – Generalised statements – whether prejudicial – Whether evidence of sexual interest – Tendency – relationship evidence – Context evidence and consideration of discretionary exclusion
EVIDENCE – Admissibility – Special Uncharged Act – Whether prejudicial – Whether evidence of sexual interest – Consideration of discretionary exclusion
Uniform Evidence Act (NT), ss 55, 56, 97, 135 and 137
IMM v The Queen [2013] NTSC 9; The Queen v IMM (No. 2) [2013] NTSC 44; Qualiteri v The Queen (2006) 171 A Crim R 463; GBF v The Queen [2010] VSCA 135; Nieterink (1998) 76 SASR 56; HML v The Queen (2008) 235 CLR 334; Ibrahim v Pham [2007] NSWCCA 215, referred to
The Hon Justice Peter Johnson, ‘Admitting evidence of uncharged acts in sexual assault proceedings’ (2010) Judicial Officers Bulletin Vol 22, No. 10.
REPRESENTATION:
Counsel:
Plaintiff:M Nathan
Defendant:T Berkeley
Solicitors:
Plaintiff:Office of the Director of Public Prosecutions
Defendant:Louise Bennett
Judgment category classification:   B
Judgment ID Number:  BLO1311
Number of pages:  12

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
R v IMM (No. 3) [2013] NTSC 45
No. 21206228
BETWEEN:

THE QUEEN

Plaintiff

AND:

IMM (NO. 3)

Defendant

CORAM: BLOKLAND J
Pre-Trial Ruling on Uncharged Acts/Context Evidence/Relationship Evidence/Evidence of Sexual Attraction
(Delivered 7 August 2013)
Introduction

This ruling concerns broadly two further areas of evidence sought to be excluded prior to the commencement of trial.[1] The indictment charges four counts; three allege aggravated indecent dealings with a child and the fourth count alleges sexual intercourse with a child under 16 years.[2]
The two broad areas of evidence involve uncharged acts. The first concerns generalised statements made by the complainant, alleging ongoing sexual misconduct by the accused. The second is an allegation that towards or at the end of the offending period the accused touched the complainant inappropriately on the leg while she was giving the accused a massage. Neither the generalised statements alleging ongoing sexual misconduct, nor the alleged touching of the complainant’s leg form the basis of any of the four counts. It may be observed this is a situation that is not unusual in cases of this kind. The broad competing considerations are that the accused must be given a fair trial without the jury being influenced by improperly prejudicial material; the Crown must also be given an opportunity to present its evidence through the complainant being able to give a full account that is not presented in an unfairly artificial way.
The generalised statements
At various points in the Child Forensic Interview (CFI)[3] the complainant (SA) makes generalised comments, for example:
SA:“... when I went to Wagaman, he’d pick me up from school…

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.

Continue reading R v IMM (No 3)

Details

AGLC: R v IMM (No 3) [2013] NTSC 45
Case: [2013] NTSC 45
Decision Date: 7 AUGUST 2013

CaseChat Overview and Summary

In the case of R v IMM (No 3), the parties involved were the accused, IMM, and the complainant, whose identity is protected. The dispute primarily centered on the admissibility of certain evidence in the criminal trial, particularly uncharged acts, which were alleged to have occurred between the accused and the complainant. The case was heard in the court of first instance, where the presiding judge had to determine whether specific evidence could be presented to the jury.

The legal issues that the court needed to decide involved the admissibility of uncharged acts and whether such evidence could be considered prejudicial or unfairly prejudicial. The court had to balance the probative value of the evidence against the risk of unfair prejudice, using the discretions provided under sections 135 and 137 of the relevant legislation. The court needed to ascertain whether the generalised statements of uncharged acts should be excluded as misleading or confusing, or if they could be admitted as context evidence. Additionally, the court had to determine whether the specific act of the accused running his hand up the complainant’s leg during a massage could be admitted as evidence of sexual interest.

The court's reasoning was thorough and focused on assessing the probative value of the evidence against the risk of unfair prejudice. The court noted that while there were apparent contradictions in the complainant's testimony, such contradictions did not warrant exclusion of the evidence. The court found that the evidence of the massage and the touching of the complainant’s leg had significant probative value, as it could demonstrate an inappropriate sexual interest by the accused. The court also considered the temporal proximity of the massage incident to the charged acts, which strengthened its admissibility. Despite the absence of the complainant’s cousin, who was present during the massage, the court determined that the evidence was not unfairly prejudicial. The court concluded that the probative value of the evidence outweighed any potential for unfair prejudice, particularly under section 137.

Ultimately, the court ruled that the generalised statements of uncharged acts were admissible as context evidence and should be presented to the jury. It was clarified that these statements were not being admitted as sexual interest evidence or tendency evidence but rather as relevant context. The evidence of the massage and touching the complainant’s leg was deemed admissible as evidence of a sexual interest on the part of the accused. The decision allowed the evidence to be used in the trial, subject to the court’s discretion and the criteria set out in the relevant legislation.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

In terms of the discretions, I have considered a weakness in this particular context evidence; that initially the complainant says it happened “lots of times before my fourth birthday ... but that was (inaudible) when I remember.” She does however say it was when she went to Wagaman Primary School. Later, in response to a question “... the first one you remembered was your fourth birthday, is that right?”, the complainant answers “Yeah”. On one view this is contradictory and I have considered whether it should therefore be excluded in exercise of the discretion as ‘misleading or confusing’ (ss 135(b); 136(b)), or prejudicial. In my view while there may well be a weakness in this part of the evidence; or an apparent contradiction, such a conclusion would be open to interpretation and I am not persuaded it is a case where the evidence should be excluded. It may well be a point of criticism of the evidence. An error, on one interpretation, of a chronology of events, does not persuade me in this case that the evidence should be excluded. Evidence of the accused’s conduct during an alleged massage 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” required by s 97. This is on the assumption that I am required to make that the jury accept the evidence. This evidence may be distinguished from the generalised statements. If accepted, it is capable of demonstrating an inappropriate sexual interest by the accused in the complainant. It may also show the accused is dis-inhibited, in terms of intimate or sexual conduct with the complainant due to a previous series of sexual encounters with her. There is a strong temporal nexus between the massage incident and the particularised charged acts, as the massage incident occurred shortly before the complainant’s grandmother and the accused separated. The indication is that the Crown will not be in a position to call the complainant’s cousin who was apparently present at the massage. On the complainant’s version the cousin did not see the accused touching her leg. This may weaken the evidence but it does not mean it is inadmissible. In my opinion it is not improperly prejudicial, (unfairly) in the sense of the relevant discretions open under s 135 and s 137. Specifically in relation to s 137 given I have found the evidence, if accepted, is capable of establishing an improper sexual interest in my view its probative value outweighs the risk of unfair prejudice.Conclusion In my opinion, the proposed evidence that has come to be known in this case as ‘the generalised statements of uncharged acts’ is admissible, not as sexual interest evidence, or tendency evidence nor relationship evidence effectively used as tendency evidence but it is relevant context evidence and should be before the jury. Evidence of the massage and touching the complainant’s leg may be lead as evidence of a sexual interest on the part of the accused in the complainant as described in paragraph [10].

Decision

Reasons for decision

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” required by s 97. This is on the assumption that I am required to make that the jury accept the evidence. This evidence may be distinguished from the generalised statements. If accepted, it is capable of demonstrating an inappropriate sexual interest by the accused in the complainant. It may also show the accused is dis-inhibited, in terms of intimate or sexual conduct with the complainant due to a previous series of sexual encounters with her. There is a strong temporal nexus between the massage incident and the particularised charged acts, as the massage incident occurred shortly before the complainant’s grandmother and the accused separated. The indication is that the Crown will not be in a position to call the complainant’s cousin who was apparently present at the massage. On the complainant’s version the cousin did not see the accused touching her leg. This may weaken the evidence but it does not mean it is inadmissible. In my opinion it is not improperly prejudicial, (unfairly) in the sense of the relevant discretions open under s 135 and s 137. Specifically in relation to s 137 given I have found the evidence, if accepted, is capable of establishing an improper sexual interest in my view its probative value outweighs the risk of unfair prejudice.Conclusion In my opinion, the proposed evidence that has come to be known in this case as ‘the generalised statements of uncharged acts’ is admissible, not as sexual interest evidence, or tendency evidence nor relationship evidence effectively used as tendency evidence but it is relevant context evidence and should be before the jury. Evidence of the massage and touching the complainant’s leg may be lead as evidence of a sexual interest on the part of the accused in the complainant as described in paragraph [10]. By arrangement with the representatives of the parties, these reasons will be forwarded to them.....................................................

Ratio Decidendi

Legal Principle Established

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