Case Note: IMM v The Queen [2016] HCA 14

INTRODUCTION

In IMM, the High Court has determined that evidence must first be capable of being reliable and credible before it can be seen to have any probative value.  Evidence may now be admitted against an accused on the assumption that it is credible and reliable, notwithstanding the circumstances surrounding the evidence.

Evidence to be Assumed Credible and Reliable

The High Court has determined (by a 4:3 majority) that a trial judge, in assessing the “probative value” of evidence for the purposes of a number of provisions in the Evidence Act (including s 97 and s 137), must proceed on the assumption that the evidence “is accepted” (and thus is to be regarded as both credible and reliable). Although the definition of probative value does not include the words “if it were accepted” the majority ruled that court must treat the evidence just as it would, when assessing relevance under section 55.

To understand this concept it is important to break down Section 55(1) of the Evidence Act 2008. Section 55 provides that evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Furthermore, s 56(1) provides that relevant evidence is admissible and by virtue of section 56(2) evidence that is not relevant is not admissible.

Assessing Relevance

The relevance definition requires a minimal logical connection between the evidence and the fact in issue. Relevant evidence need not make a fact in issue probable or sufficiently probable – it is enough if it could make the fact in issue more or less probable than it would have been without that evidence. In other words, it is enough for the evidence to be capable of affecting the probability of the existence of the fact.

There is no definition in the act for the phrase ‘fact in issue’ Evidence must be relevant to a ‘fact in issue’. ‘A fact in issue’ is a fact which is to be determined as a matter of substantive law (the elements of the offence or the cause of action). Thus, ‘a fact in issue’ has been described as ‘the ultimate fact in issue’, behind which issue ‘there will often be many issues about facts relevant to the facts in issue’. For example in a case where the principal fact in issue is whether the alleged sexual activity has occurred, the relevant and admissible evidence would need to be capable of rationally affecting the assessment of the probability of whether the charged sexual activity had occurred. 

A Relative Concept

Whilst determining relevance, a piece of evidence should not be assessed in isolation from all other evidence. Relevance is a relative concept, which must be assessed in the context of the whole of the evidence tendered in a trial. A piece of evidence may be relevant even if, standing alone; it is not capable of establishing guilt. 

Admissibility of Tendency Evidence

The admissibility of tendency evidence is governed by s 97(1) of the Act, which relevantly provides:

97.   The tendency rule

(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 —

(b) 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.

Tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion. Prosecutors should pay a particular attention to the following syllogistic or deductive reasoning characterised by NSWCCA in Elomar:

The court propounded that:

Proof that a person has or had a tendency (whether to act in a particular way, or to have a particular state of mind) of itself goes nowhere. Tendency evidence is evidence that provides the foundation for an inference. Tendency evidence is a stepping-stone. It is indirect evidence, which allows a syllogistic reasoning.

In simple terms this reasoning process suggests that, tendency evidence is a means of proving, by a process of deduction, that a person acted in a particular way, or had a particular state of mind, on a relevant occasion, when there is no, or inadequate, direct evidence of that conduct or that state of mind on that occasion.

Significant Probative Value

As per the dictionary of the Evidence Act 2008 "probative value" of evidence means the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.

The significance of the probative value of the tendency evidence under s 97(1)(b) must depend on the nature of the facts in issue to which the evidence is relevant and the significance or importance which that evidence may have in establishing those facts. So understood, the evidence must be influential in the context of fact-finding.

The majority said:

“In a case of this kind, the probative value of this evidence lies in its capacity to support the credibility of a complainant's account. In cases where there is evidence from a source independent of the complainant, the requisite degree of probative value is more likely to be met. That is not to say that a complainant's unsupported evidence can never meet that test. It is possible that there may be some special features of a complainant's account of an uncharged incident which give it significant probative value. But without more, it is difficult to see how a complainant's evidence of conduct of a sexual kind from an occasion other than the charged acts can be regarded as having the requisite degree of probative value.”

The majority (Kiefel CJ, Bell, Keane and Edelman JJ) recognized that although a pattern of conduct or modus operandi may establish significant probative value, there are other ways in which significant probative value may be demonstrated.

Furthermore;

“Evidence from a complainant adduced to show an accused's sexual interest can generally have limited, if any, capacity to rationally affect the probability that the complainant's account of the charged offences is true. It is difficult to see that one might reason rationally to conclude that X's account of charged acts of sexual misconduct is truthful because X gives an account that on another occasion the accused exhibited sexual interest in him or her.”

Therefore, the applicable fact in issue would be whether the complainant’s account of commission of the charged offence/s was both truthful and reliable rather than the determining whether the charged offences were actually committed.

The recent rulings of IMM and Hughes, has arguably removed the stringent tests of admissibility of Tendency evidence for prosecuting authorities making it more difficult for defense counsels in arguing against the probative value of evidence.