KIEFEL CJ, GAGELER, GORDON, STEWARD AND GLEESON JJ
TL APPELLANT
AND
THE KING RESPONDENT
TL v The King
[2022] HCA 35
Date of Hearing: 17 August 2022 Date of Judgment: 19 October 2022
S61/2022
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
J L Glissan QC with T Liu for the appellant (instructed by Jeffreys Lawyers)
S C Dowling SC with M L Millward for the respondent (instructed by Director of Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
TL v The King
Evidence – Criminal trial – Admissibility – Tendency evidence – Evidence Act 1995 (NSW), s 97(1)(b) – Where tendency evidence adduced to prove identity of offender – Where narrow class of possible perpetrators – Where other evidence identifying appellant as offender and tending to exclude other possible perpetrators – Whether Court of Criminal Appeal misapplied principles in Hughes v The Queen (2017) 263 CLR 338 – Whether tendency evidence required to bear close similarity to offence – Whether tendency evidence had "significant probative value".
Words and phrases – "close similarity", "identity of the offender", "probative value", "serious physical harm", "significant probative value", "tendency evidence".
KIEFEL CJ, GAGELER, GORDON, STEWARD AND GLEESON JJ. The appellant was convicted of the murder of his two and a half year old stepdaughter following a trial by jury in the Supreme Court of New South Wales, and consequently sentenced to imprisonment for 36 years, with a non-parole period of 27 years. The victim died as the result of blunt force trauma to her abdomen. The New South Wales Court of Criminal Appeal (Hoeben CJ at CL, Adamson and Bellew JJ) dismissed the appellant's appeal against conviction and sentence[1].
The single ground of appeal to this Court concerns the admission at trial of tendency evidence pursuant to s 97(1)(b) of the Evidence Act 1995 (NSW) ("the Act"). The appellant contends that the Court of Criminal Appeal erred in its application of the majority's observation in Hughes v The Queen[2] that, where tendency evidence is adduced "to prove the identity of the offender for a known offence, the probative value of [the] tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence". Specifically, the appellant contends that the Court of Criminal Appeal was wrong to conclude that the requirement for close similarity should only arise when the tendency evidence is the only or predominant evidence that goes to identity and that a "class of exceptions" exists where there is evidence that only limited persons had the opportunity to commit the offence[3], and in its conclusion that the tendency evidence had "significant probative value" as required by s 97(1)(b) of the Act.
[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.
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Details
AGLC
TL v The King [2022] HCA 35
Case
[2022] HCA 35
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered an appeal by the appellant, TL, against a decision of the Court of Criminal Appeal of New South Wales. The dispute concerned the admissibility of certain tendency evidence adduced by the prosecution during the appellant's criminal trial. The prosecution sought to prove that the appellant had a tendency to deliberately inflict physical harm on the victim, a child, and that this tendency was relevant to establishing the appellant's identity as the perpetrator of fatal injuries sustained by the victim.
The legal issues before the High Court were whether the Court of Criminal Appeal had misapplied the principles established in *Hughes v The Queen* regarding the admissibility of tendency evidence, specifically when such evidence is used to prove the identity of an offender. The court was required to determine whether the tendency evidence needed to bear a "close similarity" to the offence charged and whether it possessed "significant probative value" in establishing the appellant's identity as the perpetrator, particularly in circumstances where there was a narrow class of possible perpetrators and other evidence tended to exclude alternative offenders.
The High Court reasoned that the threshold of significant probative value could be met without requiring a "close similarity" between the tendency evidence and the offence. The court noted that in this case, there was strong evidence identifying the appellant as the perpetrator, including evidence of his opportunity to inflict the fatal injuries when other potential offenders were not present. Furthermore, there was evidence that tended to exclude the mother and nephew as perpetrators, with the mother being described as an attentive carer and the appellant himself having discounted the nephew's responsibility. The court concluded that the tendency evidence, in this context, had significant probative value in establishing the appellant's identity.
Consequently, the High Court dismissed the appeal.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Dr Cala gave evidence that, if she had already sustained the injuries he observed, it was "highly unlikely" that the victim would have been capable of getting out of bed, walking to the bedroom door, playing with the doorknob and standing at the door while the appellant came and answered it. If the appellant's account of the victim's condition when he first went into her bedroom after the mother and the nephew left the unit were accepted, it necessarily followed that the fatal injuries had not yet been inflicted. On this basis, the respondent contended that the injuries could only have been inflicted by the appellant, who was the only person known to have had contact with the victim after the mother and the nephew left to buy dinner. This contention was disputed by the appellant, who argued that his evidence that he could not recall the mother going into the victim's bedroom before or after going to buy dinner did not exclude the possibility that the mother went into the bedroom at some point after her return from buying dinner.Disputed evidence and rulings The prosecution sought to adduce two categories of tendency evidence. The admissibility of both categories was disputed on the appeal to this Court. In an amended tendency notice dated 19 March 2017, given pursuant to s 97(1)(a) of the Act, the prosecution identified the tendency sought to be proved as the appellant's tendency to act in a particular way, namely to "deliberately inflict physical harm on the child", that is, the victim. That tendency notice was directed at the first category of evidence ("the burns evidence"). As to the burns evidence, on the first day of the trial, the trial judge (Latham J) admitted into evidence a folder of documents comprising transcripts of interviews with lay witnesses, expert evidence and photographs, in support of a contention that the appellant was responsible for placing the victim in scalding hot water on the morning of 10 April 2014 – that is, 10 days before the victim suffered the fatal injury or injuries – resulting in burns to the sides of her feet and buttocks, and that the burns were not accidentally sustained[4]. There was no dispute that the victim had sustained some first degree burns and one third degree burn (to her right foot) while in the appellant's care, by coming into contact with hot water. [4]R v TL [2017] NSWSC 426. The burns evidence included evidence from Dr Christine Norrie, a forensic physician, that it would only take about five seconds for a child to suffer a third degree burn from water at a temperature of 60 degrees centigrade. Dr Norrie said that immediate and severe pain would result and that a child exposed to such hot water would "scream blue murder". Dr Norrie said that the patterns of the burns indicated that the victim was sitting in the bath when the hot water rose and burned around that part of the skin that was pressed against the floor of the bath. Dr Norrie's ultimate conclusion was that it appeared that the victim was forced to sit down in the bath. The burns evidence was capable of establishing that the appellant had deliberately immersed the victim in scalding hot water, causing the burns.
Decision
Reasons for decision
KIEFEL CJ, GAGELER, GORDON, STEWARD AND GLEESON JJ
This is a case in which the threshold of significant probative value was capable of being met without the close similarity insisted upon by the appellant. Apart from the burns and complaint evidence, there was strong evidence identifying the appellant as the perpetrator. First, there was evidence that the appellant was one of only three people with the requisite opportunity. Second, as explained above, the appellant was the only person who had an opportunity to inflict the fatal injuries when the others were not present, either in the unit or immediately outside the open window to the victim's bedroom. Third, there was evidence that tended to exclude the mother and the nephew as the perpetrator. In each case, their opportunity to inflict the abdominal injuries was restricted to a time when there were two other persons in close proximity and there was no evidence to suggest that either of them had acted on that limited opportunity. In the case of the mother, the evidence was that she was an attentive and caring mother who regularly sought medical attention for the victim when she was concerned for her welfare. In the case of the nephew, the appellant himself had discounted the nephew as being in any way responsible for the infliction of the abdominal injuries.Conclusion The appeal must be dismissed.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, GAGELER, GORDON, STEWARD AND GLEESON JJ