IMM v The Queen

Facts

The appellant was convicted of sexual offences against two complainants, his daughter and her friend, committed on separate occasions. The prosecution sought to adduce tendency evidence from each complainant in relation to the charges concerning the other. The trial judge admitted the evidence and the Court of Appeal dismissed the appellant's appeal against conviction.

Issues

1. Whether tendency evidence under s 97 of the Evidence Act 1995 (NSW) requires that the evidence have 'significant probative value' assessed by reference to the tendency itself or by reference to an ultimate fact in issue. 2. Whether the Court of Appeal applied the correct standard in evaluating the probative value of the tendency evidence.

Holding

The High Court allowed the appeal, holding that the probative value of tendency evidence must be assessed by reference to how strongly the evidence supports the existence of the tendency, and the tendency must itself be assessed for its probative value in proving a fact in issue — a standard distinct from mere relevance.

Ratio decidendi

Under s 97 of the Evidence Act 1995 (NSW), tendency evidence has 'significant probative value' only if the evidence strongly supports the existence of the tendency and that tendency has real probative weight in proving a fact in issue in the proceeding; it is insufficient that the evidence is merely relevant or that it gives rise to some rational inference.

Obiter dicta

The plurality noted that the 'significant probative value' threshold in s 97 is a meaningful gatekeeping requirement that goes well beyond mere relevance, and that courts should not conflate the assessment of probative value with the ultimate question of guilt. The judgment also discussed the relationship between tendency evidence and coincidence evidence under s 98, observing that the two provisions serve distinct forensic purposes.

Significance

IMM v The Queen is the leading High Court authority on the admissibility standard for tendency evidence under the Uniform Evidence Acts, establishing that 'significant probative value' in s 97 demands a rigorous, two-stage assessment of the strength of the evidence in establishing the tendency and of the tendency's weight in proving a fact in issue, thereby setting a genuine threshold above mere relevance.

Key authorities

• R v Velkoski R v Velkoski [2014] VSCA 121considered
• R v Ford R v Ford (2009) 201 A Crim R 451considered
• Hughes v The Queen Hughes v The Queen (2017) 92 ALJR 52cited
• Director of Public Prosecutions v Boardman Director of Public Prosecutions v Boardman [1975] AC 421considered