Evidence Law: Detailed Analysis of IMM v The Queen Case Judgement

This assignment provides an in-depth analysis of the High Court case IMM v The Queen [2016] HCA 14, focusing on the interpretation of the Evidence Act, particularly regarding the assessment of "probative esteem" and the admissibility of tendency and coincidence evidence. The case involved a trial where the appellant was found guilty of child-related offenses, and the central issue revolved around the trial judge's approach to evaluating the probative value of evidence, specifically whether the judge should assume the evidence's acceptance by the jury. The analysis explores the differing opinions of the majority and dissenting judges, the legislative scheme of the Evidence Act, and the application of sections 97(1)(b), 137, and 101. It examines the concepts of probative value, relevance, and the impact of evidence on the jury's assessment of the facts. The assignment also addresses the clash between the New South Wales and Victorian Courts of Appeal on the assessment of probative value and concludes by summarizing the High Court's decision and its implications, particularly regarding the role of the judge in withholding inadmissible evidence and the exclusion of the Hoch capability. The assignment is a comprehensive examination of the legal principles at play in the case.

Running head: EVIDENCE LAW
Evidence Law
Name of the Student
Name of the University
Author Note

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Introduction
In IMM v The Queen [2016] HCA 14 (IMM) the High Court held by a 4-3 larger part (the
majority) that a trial judge, while surveying the "probative esteem" of confirmation under the
Evidence Act, must assume that the proof "is acknowledged" and is in this way valid and
dependable. In their contradicting judgments, Nettle, Gordon and Gageler JJ differ and
looked at that as an evaluation of probative esteem fundamentally includes contemplations of
unwavering quality. At the trial the appealing party was discovered blameworthy of two
checks of foul managing a kid and one tally of sex with his step-grandaughter. The
complainant's confirmation was the main direct proof given of the charged offenses.
Regardless of protests, the indictment was permitted to show certain "propensity
confirmation" and "objection prove"1.
The inclination confirms was given by the complainant. Her confirmation was that
while the complainant and another young lady were giving the appealing party a back rub, he
ran his hand up the complainant's leg. The trial judge decided that the propensity prove was
permissible in light of the fact that it had "noteworthy probative esteem"2. Essentially, the
trial judge moved toward the undertaking of surveying the probative estimation of the
inclination confirm on the presumption that the jury would acknowledge the confirmation and
factors, for example, the validity of the complainant or the unwavering quality of the proof
were not considered.
1 Adams, Michael WR, and Christopher K. Wareham. "Is Judicial Consideration of Credibility and Reliability
under Section 137 of the Uniform Evidence Law a Guarantee of Fairness or Moral Treason." Monash UL
Rev. 40 (2014): 243.
2 Clayton, Gina. Textbook on immigration and asylum law. Oxford University Press, 2016.

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Summary
The appealing party contended that the trial judge ought not have expected that the
jury would acknowledge the confirmation being referred to while considering the probative
estimation of the proof under segment 97(1) (b) and segment 1373. It was additionally
presented that deciding "probative esteem" must require the court to consider all issues that a
tribunal of certainty would, which in IMM was a jury. In like manner, the litigant contended
that a court can't be obliged by expecting that the jury will acknowledge the confirmation,
particularly when there are motivations to question the believability of a witness or the
unwavering quality of the proof. The appealing party presented that the inclination
confirmation and protestation prove did not have noteworthy probative esteem on the grounds
that the proof was gotten exclusively from the complainant, whose validity was by and large
in issue. The New South Wales Court of Criminal Appeal (NSWCCA) and the Victorian
Court of Appeal (VSCA) have taken clashing positions on the best way to survey "probative
value"4.
R v Shamouil (Shamouil) is the primary New South Wales specialist where the NSWCCA
(Spigelman CJ, Simpson and Adams JJ) held that a trial judge deciding the probative
estimation of proof with the end goal of segment 137 ought to do as such on the presumption
that the jury will acknowledge the confirmation and ought not consider the unwavering
quality of the proof5.
3 Edmond, Gary, David Hamer, and Emma Cunliffe. "A little ignorance is a dangerous thing: engaging with
exogenous knowledge not adduced by the parties." Griffith Law Review 25.3 (2016): 383-413.
4 Edmond, Gary, et al. "Christie, Section 137 and Forensic Science Evidence (After Dupas v. the Queen and R v.
XY)." Monash UL Rev. 40 (2014): 389.
5 Elgebaly, Hassan A., et al. "Metabolomic Profiling and Antioxidant Activity of Opophytum Forsskalii." Aljouf
Science and Engineering Journal 3.1 (2016): 19-24.

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In Shamouil, Spigelman CJ embraced what Gaudron J said in Adam v The Queen. Her Honor
considered that the meaning of "probative esteem" in the Evidence Act more likely than not
read into it a presumption that a jury will acknowledge the confirmation being referred to on
the grounds that, as a viable issue, "proof can sanely influence the appraisal of the likelihood
of a reality in issue just in the event that it is accepted6." In Shamouil, Spigelman CJ noticed
that this approach is steady with the customary law way to deal with the rejection of
confirmation under the "Christie discretion", where a trial judge practicing that attentiveness
did not, in surveying whether the probative estimation of the confirmation is exceeded by its
biased impact, decide if the jury should, or ought not, acknowledge the confirmation; nor did
the trial judge consider the unwavering quality of the evidence. Spigelman CJ inferred that
the words utilized as a part of the meaning of "probative esteem" in the Evidence Act
unequivocally showed that a similar approach be taken.While considering the acceptability of
proof, a trial judge should first consider the pertinence of the confirmation under s 55. Area
55, which characterizes 'pertinence', makes reference such that confirmation "could normally"
have on a proof of reality. In IMM the dominant part noted at that "could" alludes to the
capacity of confirmation to do as such and the expression "judiciously" does not require
thought of the honesty or exactness of the proof. The lion's share finished up at "The inquiry
with regards to the ability of the confirmation to reasonably influence the appraisal of the
likelihood of the presence of a reality in issue is to be controlled by a trial judge on the
presumption that the jury will acknowledge the proof7.
This takes after from the words "on the off chance that it were acknowledged", which are
communicated to qualify the evaluation of the significance of the confirmation. This
suspicion fundamentally denies to the trial judge any thought with respect to whether the
6 French, Robert. "Criminal law sentencing in the high court." Bulletin (Law Society of South Australia) 39.6
(2017): 26.
7 Gans, Jeremy. Modern criminal law of Australia. Cambridge University Press, 2016.

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confirmation is trustworthy. Nor will it be fundamental for a trial judge to decide if the
confirmation is dependable, in light of the fact that the main inquiry is whether it has the
ability, sanely, to influence discoveries of actuality. There may obviously be a constraining
case in which the proof is so inalienably unimaginable, whimsical or incredible that it
couldn't be acknowledged by a level-headed jury. In such a case its impact on the likelihood
of the presence of a reality in issue would be nil and it would not meet the model of
significance."
Analysis
The legislative scheme which brought and uniform evidence law through Australian law
Reform Commission in the year 1995. The evidence act 1995 provides evidence into two
categories one is termed as tendency evidence and coincidence evidence. Tendency evidence
has been defined and articulated under section 97 and 137 of the act8. These two sections
deals with the type of evidence to be focused in the case of IMM. Section 97 perfect states
that the external exclusionary rule which operates as an exception in the admissibility of
evidence before the court. Tendency evidence can be defined as evidence which has a
character, reputation of conduct of a person or a tendency which a person has or had in the
past. Therefore, the main motive behind enacting the provisions of tendency evidence is to
prove that a person at the tendency to act or behave in a particular manners. Section 97 also
provides prohibition against the use of the evidence and food provisions in which case this
type of evidence will be used. The act says that the agency valence shell be used in case of
certain procedural steps which are required to be fulfilled and David else should be connected
8 Hamer, David A. "'Tendency Evidence'and'Coincidence Evidence'in the Criminal Trial: What's the
Difference?." (2017).

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to the other evidences food before the court by the party which has significant probative
value9.
Probative value has been defined under Evidence Act in Section 55 of the act which states
that such evidence should affect the existence of the fact of the case. The high court in the
case of a man has decided whether evidence play a part in determining the probative value. In
case of criminal matters the evidence act provides that the judge should have a balance for the
probative value and prejudicial effect during the admissibility of evidence against the party.
Section 101 subsection 2 states that in case of criminal proceedings evidence given by the
crown for the defendant require that the probative value of search evidence shall have a pre
judicial effect on the defendant10. The test has been made in the case of IMM found the result
that the Evidence Act is required under the test to evaluate the output of the prejudicial effect.
In IMM the issues on advance were whether the trial judge had failed in taking the
unwavering quality of the confirm as guaranteed and continuing upon the suspicion that the
jury would acknowledge the confirmation at the point when her Honor connected s 97(1)(b)
to the propensity confirmation and s 137 to grievance prove. The appellants' contention did
not call into the inquiry the utilization of the more prohibitive s 101 test to inclination prove.
The lion's share in the High Court explicitly dismissed the Victorian position as embraced in
Dupas in support of the New South Wales approach11. Their Respects found that the Dupas
position, in which the unwavering quality of the confirmation shapes some portion of the
evaluation of the probative esteem, was in opposition to the statutory arrangements, which
accommodated the exceptionally restricted events where a trial judge should consider the
9 Heydon, J. D. "Is the Weight of Evidence Material to Its Admissibility." Current Issues Crim. Just. 26 (2014):
219.
10 Keane, Adrian, and Paul McKeown. The modern law of evidence. Oxford University Press, USA, 2014.
11 McGorrery, Paul Gordon, and Marilyn McMahon. "A fair ‘hearing’ Earwitness identifications and voice
identification parades." The International Journal of Evidence & Proof (2017): 1365712717690753.

6EVIDENCE LAW
unwavering quality or validity in choosing to concede evidence, and the long line of
specialist since path before Hoch and Pfennig, which saves the subject of unwavering quality
or generally for the jury12.
In IMM the issues on progress were whether the trial judge had bombed in taking the
unfaltering nature of the affirm as ensured and proceeding upon the doubt that the jury would
recognize the affirmation exactly when her Honor associated s 97(1)(b) to the inclination
affirmation and s 137 to grievance demonstrate13. The appellants' conflict did not call into the
request the usage of the more restrictive s 101 test to slant demonstrate. The lion's offer in the
High Court unequivocally expelled the Victorian position as grasped in Dupas in support of
the New South Wales approach. Their Regards found that the Dupas position, in which the
steadfast nature of the affirmation shapes some bit of the assessment of the probative regard,
was contrary to the statutory game plans, which suited the especially confined occasions
where a trial judge ought to consider the steadfast quality or legitimacy in deciding to yield
evidence,30 and the long line of master since way before Hoch and Pfennig, which spares the
subject of unflinching quality or for the most part for the jury commit the offenses charged.
Given the assumption that the proof was dependable – and expecting the blamed ran his hand
up the complainant's legs – the confirmation would demonstrate that the denounced had a
sexual enthusiasm for the protest and along these lines, would fundamentally influence the
assurance of whether the denounced submitted the offenses charged14.
Conclusion
12 Odgers, S. (2016). Uniform Evidence Law at 21. Current Issues Crim. Just., 28, 311.
13 Odgers, Stephen, and Richard Lancaster. "The probative value of evidence." Bar News: The Journal of the
NSW Bar Association Winter 2016 (2016): 36.
14 Odgers, Stephen. "Paul Byrne SC memorial lecture: Uniform evidence law at 21." Current Issues in Criminal
Justice 28.3 (2017): 311.

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The High Court's choice does not block a judge from withholding clearly over the top
prove from a jury. As clarified by J D Heydon QC in his article "Is the Weight of Evidence
Material to Its Admissibility?", where the proof is "intrinsically unconvincing", it would at
present have a low probative esteem notwithstanding when "taken at its most astounding". 37
Their Honors additionally received Heydon QC's case of personality confirm from a witness
who just had a transitory look of the charged in extremely poor visual conditions15. In
rundown, IMM conclusively settled the contradiction between the most noteworthy
investigative courts in the country's two busiest purviews, finding that the unwavering quality
of the confirmation and validity of the witness was not to be considered in choosing
regardless of whether inclination confirm is acceptable under the uniform confirmation law.
In any case, notwithstanding choosing that the unwavering quality of confirmation was best
left to the jury, the Court made an imperative capability that it would even now be the
employment of future judges to keep prove that is "characteristically unbelievable" or
"clearly ludicrous" far from the jury in spite of their at first sight probative incentive by
characteristic use of the rule that the probative esteem of such confirmation would be
lessened when seen with other confirmation. The High Court likewise chose to expel all
follows of impact of Hoch and Pfennig, forerunners of the inclination manage, by dismissing
the use of the Hoch capability as far as joint mixture in the utilization of the exercise in
careful control as required in s 101(2). Lamentably, the Court has declined to bargain
facilitate with its explanations behind dismissal the utilization of the Hoch capability16
15 Stockdale, Michael, Emma Smith, and Mehera San Roque. "Bad Character Evidence in the Criminal Trial:
The English Statutory/Common Law Dichotomy-Anglo-Australian Perspectives." (2016): 441.
16 Tesheira, Karen. Commonwealth Caribbean Family Law: Husband, Wife and Cohabitant. Routledge, 2016.

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Bibliography:
Adams, Michael WR, and Christopher K. Wareham. "Is Judicial Consideration of Credibility
and Reliability under Section 137 of the Uniform Evidence Law a Guarantee of Fairness or
Moral Treason." Monash UL Rev. 40 (2014): 243.
Clayton, Gina. Textbook on immigration and asylum law. Oxford University Press, 2016.
Edmond, Gary, David Hamer, and Emma Cunliffe. "A little ignorance is a dangerous thing:
engaging with exogenous knowledge not adduced by the parties." Griffith Law Review 25.3
(2016): 383-413.
Edmond, Gary, et al. "Christie, Section 137 and Forensic Science Evidence (After Dupas v.
the Queen and R v. XY)." Monash UL Rev. 40 (2014): 389.
Elgebaly, Hassan A., et al. "Metabolomic Profiling and Antioxidant Activity of Opophytum
Forsskalii." Aljouf Science and Engineering Journal 3.1 (2016): 19-24.
French, Robert. "Criminal law sentencing in the high court." Bulletin (Law Society of South
Australia) 39.6 (2017): 26.
Gans, Jeremy. Modern criminal law of Australia. Cambridge University Press, 2016.
Hamer, David A. "'Tendency Evidence'and'Coincidence Evidence'in the Criminal Trial:
What's the Difference?." (2017).
Heydon, J. D. "Is the Weight of Evidence Material to Its Admissibility." Current Issues Crim.
Just. 26 (2014): 219.
Keane, Adrian, and Paul McKeown. The modern law of evidence. Oxford University Press,
USA, 2014.

9EVIDENCE LAW
McGorrery, Paul Gordon, and Marilyn McMahon. "A fair ‘hearing’ Earwitness
identifications and voice identification parades." The International Journal of Evidence &
Proof (2017): 1365712717690753.
Odgers, S. (2016). Uniform Evidence Law at 21. Current Issues Crim. Just., 28, 311.
Odgers, Stephen, and Richard Lancaster. "The probative value of evidence." Bar News: The
Journal of the NSW Bar Association Winter 2016 (2016): 36.
Odgers, Stephen. "Paul Byrne SC memorial lecture: Uniform evidence law at 21." Current
Issues in Criminal Justice 28.3 (2017): 311.
Stockdale, Michael, Emma Smith, and Mehera San Roque. "Bad Character Evidence in the
Criminal Trial: The English Statutory/Common Law Dichotomy-Anglo-Australian
Perspectives." (2016): 441.
Tesheira, Karen. Commonwealth Caribbean Family Law: Husband, Wife and Cohabitant.
Routledge, 2016.