TL v The Queen - [2022] HCATrans 134

[2022] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S61 of 2022

B e t w e e n -
TL
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
GAGELER J
GORDON J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 AUGUST 2022, AT 10.04 AM

MR J.L. GLISSAN, QC: If the Court pleases, I appear with my learned friend, MR T. LIU, for the appellant. (instructed by Jeffreys Lawyers)

MS S.C. DOWLING, SC: I appear with MS M.L. MILLWARD for the respondent, your Honours. (instructed by Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Glissan.

MR GLISSAN: Your Honours, this matter raises an issue of the proper principle to be applied in relation to the admission of tendency evidence in circumstances where the issue to which that evidence is directed is the identity of the offender rather than to the establishment of the commission of the offence.

Our case is that in this present matter the admission of that evidence by the trial judge and its affirmation in the Court of Criminal Appeal meant that the accused had not had a fair trial according to law. The whole case in the court below at first instance was conducted on the basis of an issue of identity of the offender. There was never any significant issue joined between the parties as to whether or not the death of the child was caused by a blow – or blows – and so that principal issue that fell to be determined by the jury was one which occupied the whole of the attention in very real terms of the tendency evidence that was introduced, and, as well, the trial judge’s reasoning for admitting that tendency evidence and the manner in which her Honour in the first instance court charged the jury.

That being the case, a number of things, as we have set out in our outline of propositions – which your Honours will have received this morning – arise in a way that does not arise in the ordinary tendency case or in the kind of case that was involved in your Honours’ decision in Hughes. That is to say this: there is no dispute, as we have said, that the admissibility of tendency evidence, under section 97, is conditioned on the issue of or the existence of similarity, or close similarity, as a statutory requirement. We do not make any suggestion that the established law in relation to that is other than correct. However, the ultimate issue – to which the Court has said in Bauer that there can only be right answer – is whether the evidence has significant probative value and that is determined, as we have put it in our submissions, at paragraph 19, as dependant on what that evidence is adduced to establish.

As I have said, in this case, that evidence was adduced to…

Grounds of appeal

[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

Case: [2022] HCATrans 134
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by TL against a conviction for a sexual offence. The appeal concerned the admissibility of certain evidence and the fairness of the trial process.

The central legal issues before the High Court were whether the trial judge erred in admitting evidence of the appellant's prior sexual conduct with the complainant, and whether the trial judge's directions to the jury on the use of that evidence were adequate. The Court also considered whether the cumulative effect of any errors rendered the trial unfair.

The High Court held that the admission of the prior sexual conduct evidence was permissible under the relevant evidence legislation, as it was capable of establishing a relationship between the appellant and the complainant and was not merely character evidence. However, the Court found that the directions given to the jury regarding the use of this evidence were insufficient to properly guide them on its limited purpose, potentially leading to unfair prejudice. Consequently, the High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders