TL v The King

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.