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Memorandum to ______ Re: IMM v The Queen (2016) 330 ALR 382 Key Facts 1. This Northern Territory Supreme Court (NTSC) case involved charges brought against the appellant ‘IMM’, for allegedly committing offences on his step-granddaughter (the complainant) pursuant to sections of the Criminal Code1 (all sections below refer to this legislation unless stated). 2. The offences were alleged to have been made between 12 June 2002 until 2 November 2009 and included the following: a. Section 132: Indecent dealing with a child under 16 (touching the complainant’s vagina while she was in the bath, aged about four);2 b. Section 132: Indecent dealing with a child under 16 (rubbing his penis on the outside of the appellant’s vagina, when she was aged about five);3 c. Section 127: Sexual intercourse with a child under 16 (cunnilingus of the appellant, when aged about six); and4 d. Section 132: Indecent dealing with a child under 16 (rubbing his penis on the outside of the appellant’s vagina, when aged about 11).5

1 Criminal Code Act 1983 (NT). 2 IMM v R (2016) 330 ALR 382 at [115]. 3 Ibid. 4 Ibid. 5 Ibid.

3. The prosecution was permitted to adduce “tendency evidence” and “complaint evidence” regarding the appellant’s behaviour. In assessing the probative value of the tendency and complaint evidence, the trial judge assumed the jury would accept the evidence. 4. The appellant was found not guilty of the first indictment and guilty of the other three by the jury in the NTSC. 5. The appellant appealed against the decision to the Court of Criminal Appeal challenging the trial judge’s decision to admit the tendency and complaint evidence. The appeal was unanimously dismissed. 6. Special leave was granted to appeal to the High Court. A 4:3 majority was determined that the complaint evidence was significant, however the tendency evidence adduced had limited probative value and therefore inadmissible.6 7. The convictions were quashed and a new trial was to be undertaken for the offences. Key Legal Issues The Appeal The foci of the appeal brought forward deals with Sections 55, 56, 97(1), 135 and 136 of the Evidence Act (NT)7 (EANT). Section 55 deals with the definitions of relevant evidence and section 56 relates the acceptability of relevant evidence. The tendency rule is dealt with pursuant to section 97(1) and sections 135 and 136 cover discretionary and mandatory exclusions.8 Tendency Evidence (Trial) 6 Evidence (National Uniform legislation) Act NT, s 97(1)(b). 7 Evidence (National Uniform legislation) Act NT. 8 IMM v The Queen [2016] HCA 14 at [35]-[36] (‘IMM’).

The prosecution adduced tendency evidence given by the complainant, that the appellant had ran his hand up the complainant’s leg while she and another female friend were giving the appellant a back massage.9 The prosecution was relying on this to prove that the appellant had and would act on sexual interest in the complainant.10 The trial judge advised the jury that if accepted as true, the evidence could be used to establish whether the appellant was guilty of the alleged offences.11 The admission of the tendency evidence was objected to, subject to Section 97(1)(b) of EANT. It states that tendency evidence is inadmissible unless it has significant probative value. Probative value is defined in the EANT as “the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue”. Pursuant to section 101(2) of the Evidence Act12, the probative value of the adduced evidence must be significant or important enough such that any prejudicial effect it may have on the defendant or accused is substantially outweighed. Additionally, the threshold entails more than “mere” relevance but less than “substantial” relevance.13 Complaint Evidence (Trial) Four witnesses referred to as SS (complainant’s friend), SW (complainant’s aunt), SC (complainant’s grandmother) and KW (complainant’s mother) provided the complaint evidence.14 Considerable time had elapsed from the time SS had received the first complaint from the complainant. The parties contended over the timing and whether the elapsed time had

9 R v IMM (No 3) [2013] NTSC 45 at [10]. 10 ‘IMM’ (n 8). 11 R v IMM (n 9), SU 23.3. 12 Evidence Act 1995 No 25 (NSW). 13 R v Lockyer (1996) 89 A Crim R 457. 14 Ibid at 5.8.

diminished the probative value of the evidence subject to section 137 of EANT.15 The uncorroborated nature of the complaint evidence and the context in which it was given were also discussed. Appellant’s Arguments on Appeal The argument for appeal was that the trial judged had erred in admitting the tendency and complaint evidences.16 The appellant also disputed the method used to determine the probative value of the complainant’s evidence for the purposes of subsections 97(1)(b) and 137 of EANT.17 Further, it was argued that the complainant’s evidence was unsubstantiated and the trial judge had incorrectly guided the jury that ‘there was no supporting evidence of the commission’ of the alleged wrongdoings.18 In regards to the tendency evidence, counsel for the appellant argued that if the trial judge was erroneous to assume that the jury would accept the evidence, then there would be a chance the court would conclude the evidence’s probative value was insignificant (as per s 97(1)(b), as the evidence was derived from the complainant whose credibility was already in question.19 Counsel for the appellant submitted the same case in relation to the complaint evidence for the purposes of s 137 of EANT.20 The complaints made by SW, KW and SC were done so when the appellant had separated from the complainant’s grandmother. Leading questions were used to attain some of the complaints and a significant amount of time had passed since the alleged offences were committed. Further, evidence was provided that the first complaint was made when the complainant was in trouble at school. Despite these issues, the trial judge 15 Evidence (National Uniform legislation) Act NT. 16 ‘IMM’ (n 8), Case Summary [2016] HCASum 11 (14 April 2016). 17 ‘IMM’ (n 8) at [19]. 18 R v IMM (n 9), SU 6.2. 19 ‘IMM’ (n 8) at [21]-[22]. 20 Ibid at [23].

failed to warn and instruct the jury to only apply the complaint evidence in relation to supporting the complainant’s credibility.21 Thus, it was argued there had been a miscarriage in justice. Effect on Earlier and Later Australian Decisions Before this decision, there were a number of standards and methods of assessing ‘probative value’ across Australia’s jurisdictions. New South Wales followed the decision made in R v Shamouil22(‘Shamouil’) - that the trial judge determining the probative value of the evidence for the purpose of section 13723 ought to do so on the supposition that the jury will accept the evidence and should not contemplate the reliability of the evidence.24 In Shamouil, Spigelman CJ adopted the decision in Adam v The Queen25 noting that the definition of probative value was consistent with the common law in respect to the exclusion of evidence under the “Christie26 discretion”. Conversely, the Victorian Court of Appeal has taken a conflicting stance to New South Wales in relation to how “probative value” is assessed. In Dupas v The Queen27, the majority declined Shamouil’s reasoning and asserted that a trial judge could consider the reliability of the evidence relative to its probative value.28 In IMM v The Queen29, French CJ, Kiefel, Bell and Keane JJ aligned with the judgement in Shamouil30 and Gaudron J’s reasoning in Adam v The Queen31 and delivered a majority 21 Appellants Submissions, High Court of Australia, Darwin Registry, No:D12 of 2015 at 6.57. 22 R v Shamouil (2006) 66 NSWLR 228. 23 Evidence Act 1995 No 25 (NSW). 24 ‘IMM’ (n 8) at [27]. 25 Adam v The Queen (2001) 207 CLR 96 at 115. 26 R v Christie [1914] AC 545. 27 Dupas v The Queen (2012) 40 VR 182 (‘Dupas’). 28 ‘Dupas’ (n 26) at 196 [63(c)]. 29 ‘IMM’ (n 8). 30 R v Shamouil (n 21). 31 Adam v The Queen (2001) 207 CLR 96.

judgement that no valuation of credibility or reliability could be made of evidence accepted by the jury. Further, the majority held that the complainant’s uncorroborated evidence regarding an uncharged incident did not reach the required degree of probative value and was inadmissible.32 It was held that the complaint evidence was potentially significant, had considerable probative value and did not contribute to prejudice.33 Gageler J affirmed the majority’s decision regarding the tendency evidence but gave an individual judgement concerning the complaint evidence. Gageler J, preferring McHugh J’s judgement in Papakosmas v The Queen34, held that an assessment of reliability was necessary to assessing probative value and thus the trial judge had not applied the right approach.35 Contra the majority, Nettle and Gordon JJ, like Gageler J, accepted the Victorian Court of Appeal method following McHugh J’s reasoning in Papakosmas v The Queen36 and held that calculating probative value necessitates consideration of reliability.37 It was concluded that the complaint evidence, not the tendency evidence, was wrongfully admitted.38 Nettle and Gordon JJ did however permit the appeal. These decisions all suggested a requirement for tendency and complaint evidence to come from an independent source from the complainant.39 In McIntosh v R40, Basten JA (with Hidden and Wilson JJ agreeing) rejected the fact that concoction or contamination could potentially play a role in the determination of tendency 32 ‘IMM’ (n 8) at [62]. 33 Ibid at [65]-[74]. 34 Papakosmas v The Queen [1999] HCA 37. 35 Ibid at [85] and [96]. 36 Papakosmas v The Queen (n 34). 37 ‘IMM’ (n 8) at [140] and [172]. 38 Ibid at [173]-[181]. 39 Ibid at 318 [62]. 40 McIntosh v R [2015] NSWCCA 184.

evidence’s significant probative value.41 This was validated in IMM v The Queen42, however authorities since have varied their stance on this notion. In recent years, the High Court in The Queen v Bauer43 acknowledged that IMM v The Queen44 was a confusing source of case law in regards to whether tendency evidence is admissible.45 It also found that IMM’s46 reasoning was highly circumstantial in that the sexual act was fairly innocuous and happened a considerable time before the charged offence.47 Thus Bauer48 confines the extent to which IMM49 applies in other cases. Summary The case elucidated a number of key issues. The first being that tendency or coincidence evidence assumed to be accepted and therefore reliable and credible does not imply the “probative value” should not be assessed. These must be assessed on a scale of low probative value to significant probative value taking into consideration the source the evidence has come from and whether concoctions and contaminations are involved.

41 Ibid at [46]-[47]. 42 ‘IMM’ (n 8) at [59]. 43 R v Bauer [2018] HCA 40; (2018) 92 ALJR 846. 44 ‘IMM’ (n 8). 45 R v Bauer (n 43) at [47]. 46 ‘IMM’ (n 8). 47 ‘IMM’ (n 8) at [61]-[64]. 48 R v Bauer (n 43). 49 ‘IMM’ (n 8).

Bibliography

A Articles/Books/Reports. Heydon, J, D. Cross on Evidence. (LexisNexis,11th ed, 2017)

Odgers, Stephen, Uniform Evidence Law. (Thomson Reuters, 13th ed, 2018) Kumar, Miiko, Stephen Odgers and Elisabeth Peden, Uniform Evidence Law, Commentary and Materials. (Thomson Reuters, 6th ed, 2018)

Hamer, David, ‘The unstable province of Jury Fact-Finding: Evidence Exclusion, Probative Value and Judicial Restraint after Imm v The Queen’ (May 2018) The University of Sydney Law School.

Huntley, Stephanie, ‘IMM v The Queen [2016] HCA 14’ Networked Knowledge Law Reports.

Odgers, Stephen, ‘Implications of IMM v The Queen [2016] HCA 14’.

Venice, Harry, ‘IMM v The Queen [2016] HCA 14: The High Court rules on “Probative Value”.

B Cases Adam v The Queen (2001) 207 CLR 96 at 115

Dupas v The Queen (2012) 40 VR 182

IMM v The Queen [2016] HCA 14

McIntosh v R [2015] NSWCCA 184

Papakosmas v The Queen [1999] HCA 37

R v Bauer (2018) 92 ALJR 846

R v Bauer [2018] HCA 40

R v Christie [1914] AC 545

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

R v Lockyer (1996) 89 A Crim R 457

R v Shamouil (2006) 66 NSWLR 228

C Legislation Criminal Code Act 1983 (NT)

Evidence (National Uniform Legislation) Act NT

Evidence Act 1995 No:25 (NSW)...