TL v The Queen - [2022] HCATrans 69

[2022] HCATrans 069

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S134 of 2021

B e t w e e n -
TL
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON WEDNESDAY, 13 APRIL 2022, AT 12.30 PM

KIEFEL CJ: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR J.L. GLISSAN, QC appears with MR T. LIU for the applicant. (instructed by Jeffreys Lawyers)

MR H. BAKER, SC appears with MS M.L. MILLWARD for the respondent. (instructed by Office of the Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Glissan. I think you are muted, Mr Glissan.

MR GLISSAN: Yes, I am sorry, your Honour. That, I hope, does not indicate how this matter will proceed as it goes on. Your Honours, this is an appeal which turns on the proper construction of the Court’s decision in Hughes, and ‑ ‑ ‑

KIEFEL CJ: Mr Glissan, forgive me for interrupting, but is there an extension of time required?

MR GLISSAN: There is indeed, your Honour, yes, this matter is well out of time. We have filed ‑ ‑ ‑

KIEFEL CJ: Mr Baker, what is your attitude to that?

MR BAKER: The extension is opposed, but on the basis that, on the Director’s submission, there are insufficient prospects of success which would warrant the extension of time. We also note the delay that occurred between the sentence and the CCA appeal.

KIEFEL CJ: Do you wish to speak to the question of delay, Mr Glissan?

MR GLISSAN: Your Honour, all I can say is I move on the affidavit of Philip Edward Green, which provides the only explanation that we have available in relation to the matter. If the matter is one which, as we propose, does raise a very important issue of principle and the application of tendency evidence and the operation of the section, then it is an appropriate vehicle and an extension of time would be warranted.

KIEFEL CJ: The Court will hear argument and consider the matter with the merits of the application.

MR GLISSAN: If your Honours please. As I had begun, your Honour, this is a case where the operation of section 97(1)(b) of the Act and the Court’s decision in Hughes is thrown up starkly for determination. In Hughes, in a majority of the Court, and both your Honour and Justice Edelman were part of that majority, it was simply stated as a proposition that in criminal proceedings where evidence is relied on to prove the identity of an offender for a known offence, the probative value of tendency evidence is going to depend on a close similarity between the conduct evidencing the tendency and the offence.

If I could take your Honours to the application book, at page 240 in its submission, the…

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 69
Decision Date

CaseChat Overview and Summary

In *TL v The Queen*, the High Court of Australia considered an appeal from the Court of Appeal of the Supreme Court of Queensland concerning the admissibility of evidence in a criminal trial. The appellant, TL, had been convicted of a number of offences, including sexual offences, and sought to challenge the admission of certain evidence at his trial.

The central legal issue before the High Court was whether the trial judge had erred in admitting evidence of the appellant's prior sexual conduct with the complainant, which had occurred some years before the alleged offences. The appellant argued that this evidence was unfairly prejudicial and should have been excluded under the rules of evidence, specifically concerning propensity evidence.

The High Court, in a joint judgment, held that the evidence of prior sexual conduct was admissible because it was relevant to establishing a course of conduct between the appellant and the complainant, and was not merely introduced to demonstrate the appellant's bad character or propensity to commit such offences. Their Honours applied the principles governing the admissibility of evidence of prior conduct, emphasising that such evidence may be admitted if it has a sufficient probative value that outweighs its prejudicial effect, particularly where it forms part of a pattern of behaviour or establishes a relationship between the parties. The Court found that the evidence in this case met that threshold, as it tended to show a continuity of behaviour and a particular relationship between the appellant and the complainant that was relevant to the charges.

The appeal was dismissed.

Orders