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

Copyright in the High Court of Australia

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 respondent makes the observation at paragraph 23, that the Chief Justice – Chief Judge at Common Law Justice Hoeben noted that the:

“the injuries suffered were different in nature and degree” –

And goes on towards the end of that paragraph:

The applicant’s submission, that the difference in the injuries…was tantamount to a finding that there was “no close similarity or indeed any real similarity” (AS[25]), should not be accepted.

That effectively throws up, starkly, the issue between the parties and the issue that is raised by the application.  What we say is that the Court of Criminal Appeal, in its decision, which is set out clearly between pages 155 and 158 of the application book, departed from the principle that your Honours had nominated in Hughes, effectively by putting a gloss on that statement of principle by saying that where that requirement for similarity or close similarity is required, it allows – the way it was expressed in Hughes, allows for exceptions, and that this case fell within that class of exceptions.

Our case is whether or not there is such an exception to the principle in Hughes, whether it is being applied differently in different places around the Commonwealth, and so that there is developing a tension or a lack of consistency in the jurisprudence – that there a number of cases to which we have referred in our submission which are thrown up by that very issue, and, contrary to the Crown’s submissions in this case, the Court of Criminal Appeal in New South Wales in TL did not apply that orthodox principle, but in fact departed from the statement of principle in Hughes. 

We have, in our reply, referred to a recent decision of a single judge in the Supreme Court of New South Wales, Justice Campbell, where he said, if I can simply take your Honours to it – it is at 248 of the book at paragraph 13 of our reply submissions:

having regard to that strong statement from the High Court (Hughes at [30]), I, with the greatest respect, have difficulty understanding how the Court of Criminal Appeal could apparently water it down in the manner which the passage relied upon from TL v R might be taken as suggesting.  It may be accepted that similarity is not a statutory condition of the admissibility of tendency evidence, but it does have a part to play in the valuation of the probative value of tendency evidence –

That issue arises in a number of other cases.  In addition to the cases which we have set out, there is a recent 2019 decision in Tasmania which is not in our application ‑ ‑ ‑ 

EDELMAN J:   Mr Glissan – and this is not necessarily said adversely to you – but one has to start, does one not, by identifying what it is that is sufficiently similar?  My recollection is that in Hughes, the joint judgment identifies two different but related questions, one being the extent to which the evidence supports the tendency, and the other one being the extent to which the tendency makes the charged acts more likely.  The generality at which a tendency is identified might be able to say, well, this is very similar – or sufficiently similar – with the charged acts.  But if it extremely general, then it may be that it is not going to make the charged acts more likely.

MR GLISSAN:   There are two things that I need to say in response to that, your Honour – that, we would respectfully adopt as being a statement that supports our contention in this case, but the second thing is this, in Hughes, the matter issue was not the identity of the offender.  Here, this is a case where what was at issue – the only thing that effectively was at issue – is which of three possible people was the person who committed the physical act which brought about the death – so it threw up the issue of identity in a very real way.

Now, what has been said in the cases – and we have set this out in our material – is precisely what your Honour has just put to me, that, where there is a level of generality, that might satisfy the section 55 test – that is to say, the general logical nexus test – but it will not satisfy the next step that is requisite for the evidence to be used in the way it was in this case – that is to say, to establish the identity of the offender.

If I could your Honours directly to that, that was precisely the way the matter was conducted in this case.  The tendency notice itself relied on the burns evidence – if I can refer to that evidence – as a tendency to deliberately inflict physical harm on the child.

Now, so far as that goes, it was not related to the other evidence adduced but the important thing was that it fell foul of – and this is noted in the Court of Criminal Appeal judgment at 155 and 156 of the application book, between paragraphs 195 and 200 – and if I can adopt what Justice Howie said in Bryant:

“  . . .  Tendency evidence itself will rarely have sufficient probative value to identify a person as a particular offender.”

That goes back in one sense to the common law – Sutton and those cases that are set out in the judgment – but also, more recently, decisions of your Honours’ Court where identity is an issue.  Now, this is the first case that really raises starkly the issue of tendency evidence going to identity other than in a sex case.  So there are ‑ ‑ ‑ 

EDELMAN J:   Is the principled reason for that, do you say, that in order for it to do so, one would need also to know information about the tendencies, or lack thereof, of other possible suspects?  Or is there some other reason?

MR GLISSAN:   No, there is another reason.  One – the last thing I would want to do is suggest that the admissibility of tendency evidence be even further enlarged in that sense, but no, the thrust of the argument is this, that the principled issue is that where there is a general proposition put forward as to tendency, and there is not a close identity between the act relied on as tendency evidence and the act relied on as causative of the death, in this case, it is not possible to make the conclusion that there is identity between the two events.

Perhaps I am not putting that as clearly as I might, but it was raised very squarely in both the argument in our written material but also in the case itself, and indeed, in the Court of Criminal Appeal, Justice Hoeben made quite clear in that passage that I read to your Honours just a moment since, that there is no close identity.  What happened in the tendency evidence in this case was it was an allegation that the child, two‑and‑a‑half year old infant, was introduced into scalding water, there was an issue about whether or not that was deliberate or not, taking the Crown case at its highest, the tendency is a very general tendency to cause physical harm, as it was expressed, to the child.

The injury that caused – brought about the death, was a direct blow of significant impact to the child, which was entirely different in type and kind and occasion to the circumstance that attended the other one, so that they cannot be said to be closely aligned or closely similar.  I will not use the old word “strikingly” similar, for that, but that kind of ‑ ‑ ‑ 

EDELMAN J:   Mr Glissan, those type of concerns are not concerns of principle that are limited to identity evidence, they are concerns of principle that apply in every type of tendency evidence that – and that is the reason for the insistence in Hughes that there be a very similar type of conduct.  My question to you is really directed to, is – what is it that is unique about identity evidence?  Is it because it raises the additional concerns that one does not know what tendencies there are for other possible suspects?

MR GLISSAN:   I do not know that I can adopt that formulation, your Honour, because that seems to carry with it a suggestion that the evidence would be admissible subject to being able to evaluate the tendencies that might be exhibited by other witnesses, and that is not something that is ordinarily available.

My proposition is rather to the contrary, that because you are trying to – not identify a pattern of conduct which establishes the likelihood of the offence occurring – as is the case in a lot of the sex cases – whether or not there is an unhealthy interest in having sex with underaged girls, which was the case in Hughes, or any of – looking at the other issues, but trying to use the tendency evidence to establish the actual identity of the perpetrator, that there is a disconnect in that way, and that ought not to be permitted.  Now, that is not to say ‑ ‑ ‑ 

KIEFEL CJ:   Mr Glissan, is the notion of a pattern of evidence really completely out of the picture here?  If one is looking at the, as you say, the difference in the nature and type of evidence here in question, to what extent is the fact that there is only one other item of evidence in addition to the evidence of the blunt trauma – the blow to the stomach, productive of death – that there is only one other item of evidence which shows the propensity in relation to the general treatment of the child.  I suppose what I am saying is, would it be different if there were a series of different types of conduct.  Or is it that here it is starkly brought into focus because there is only one other act? 

MR GLISSAN:   Well, the Crown actually introduced four pieces of evidence as tendency evidence in this case.  Some of which related to bruising that was seen on the little girl and an allegation that the offender had previously struck her in the face, so that ‑ ‑ ‑ 

EDELMAN J:   But they were not evidence of acts, they were evidence of things that had been said, though.

MR GLISSAN:   That is – your Honour is quite correct.  They were evidence, and they were objected to on that basis, but I think, to answer the Chief Justice’s question, there is a very stark difference between the immersion in water and the physical act that brought about the death, and it is that disconnect that we say is the vice in allowing this evidence in, in order to try to prove identity.  And it does come back to that issue of

identity which Justice Edelman raised with me, because you cannot elide the two propositions.

As the cases have said, it is at too high a level of generality, or, if you like, one level of abstraction too far, to be able to be reliable.  The issue does not become one simply of, if you like, admissibility on the section 55 level, but it becomes one of whether or not it has probative value of the kind that is required to overcome the prohibition in the section on allowing evidence of tendency in by satisfying both the limbs of the section.  We set out the section, to the extent your Honours need to be reminded of it, which I imagine is fairly small, at page 228 of the application book, but it is a two‑stage process.  What is required is that the person has:

a tendency to act in a particular way, or to have a particular state of mind –

and that needs to lead to, or is only admissible if, it has:

significant probative value.

It is that element of absence of probative value which we say is not established, where you have got disparate acts, as you have here, and the issue is one of identity.  Is that a clear articulation of that proposition?

KIEFEL CJ:   Well, I certainly follow what you are saying, Mr Glissan.

MR GLISSAN:   I am glad to hear it, your Honour.  But there is not really a great deal more that can be said about it, other than that.  That is what we have set out in our application, it is what we have said in our reply, it is what we say has led to significant problems.  Now, we do cite a single judge decision of the Supreme Court, a reference to a decision of the County Court of Victoria, but it is important for your Honours to realise, to recognise, that these are matters arising on a daily basis in the engine room of the criminal law.

This is a case where this – where the courts below would be assisted by guidance from your Honours’ court.  That is the proposition that we put.  We say this is a good vehicle for that reason.

KIEFEL CJ:   Yes, thank you, Mr Glissan.

MR GLISSAN:   Thank you, your Honour. 

KIEFEL CJ:   Mr Baker.

MR BAKER:   Thank you, your Honour.  Your Honour, the respondent submits that there is no divergence as submitted by the applicant.  The admissibility of tendency evidence in a particular case depends on the particular tendency sought to be admitted and the facts and circumstances of the case, including the other evidence that is to be found.  The different judgments that the applicant refers to all demonstrate that it is following a proper application of the statutory test in section 97, consistent with the approach in Hughes.

The respondent’s submission is that what you see with these other cases is really the different results that occur in different cases, dependant on the different facts and circumstances.  That is why it is important, in this case, to look at the very unusual facts and circumstances.  The Court of Criminal Appeal correctly held that the tendency evidence in this particular case, had significant probative value, having regard, also, to the other evidence.

The answer to the sole special leave question posed by the applicant is answered by the application of those principles found in Hughes.  In this particular case, the issue at trial was ultimately whether the Crown had proved beyond reasonable doubt that the applicant was the person who inflicted the blunt force trauma to the ‑ ‑ ‑

KIEFEL CJ:   Mr Baker – Mr Baker, you say that the Court of Criminal Appeal applied other evidence.  What other evidence was there, apart from this, that was relevant to the question of tendency? 

MR BAKER:   In relation to the question of tendency, the other evidence related to the facts and circumstances of who was present.  This was not a case where it was that tendency evidence to demonstrate the way in which the accused was asserted to have acted – which was to deliberately inflict physical harm on the child.  The other evidence that the respondent says is important is the fact that it was not in dispute that the applicant was one of only three people who had the opportunity to commit the offence.  And if I can ‑ ‑ ‑ 

KIEFEL CJ:   That is pointing to identity, but – can I ask you this?  In relation to tendency itself, is it sufficient that there is one other act which is different in nature for there to be established a tendency?

MR BAKER:   The act was different in nature and degree than the actual assault that occurred ‑ ‑ ‑ 

KIEFEL CJ:   And it was one act.  We are not talking about a pattern of conduct here, we are talking about one act.

MR BAKER:   Well, what we are talking about is close in time to the alleged offence.  There were a series of acts that were relied upon.  There is ‑ ‑ ‑ 

EDELMAN J:   So, Mr Baker, there were a number of statements that were relied upon and one act that was relied upon?

MR BAKER:   There was a – yes, there were three statements.  One was a bruise that was observed, as well as a statement, but, yes, I accept that those three other instances that were relied upon were statements by the child or observation of a bruise, and then a statement by the child about how that was caused. 

So, yes, it is clear that the main act, or the act that is relied upon, is the burns that were caused to the child.  In this particular case, and when your Honour Justice Edelman talks about whether or not there needs to be a further tendency to have some work to do, or – not work to do, but some knowledge about what the other suspects that were involved, or possibly involved, in the case may have.

The respondent’s submission is that in this particular case when you look at all the facts and circumstances, the opportunity is a relevant consideration when one comes to a consideration of the question of significant probative value because of those three people, the opportunity for the applicant to have committed the charged event, was markedly greater than the child’s mother, and certainly greater than the opportunity for the fourteen-year-old nephew. 

The applicant was the only person who was alone in the unit with the deceased in the period immediately prior to her appearing unwell, and there was evidence that the child would have been immediately and severely incapacitated after the injuries, and she would not have appeared normal at any time after that.  And it was not in dispute that the applicant was seen coming out of the deceased’s bedroom when the mother and the nephew returned home from getting the dinner.  So, the relevant fact in issue in this case was‑ ‑ ‑ 

EDELMAN J:   Mr Baker, how do those matters go to the tendency question?  I mean, they might be relevant to some argument about the proviso or the strength of the case, but they do not go to the question of tendency, do they? 

MR BAKER:   Well, they go, on the respondent’s submission, to the question of whether or not that tendency has significant probative value in the facts and circumstances of the case. So, in this particular case it was not having to prove identity as against the general population; it was to prove it as against a smaller group of people, being three people, of which the accused had the greatest opportunity to have committed it.  So, in those circumstances the ‑ ‑ ‑ 

EDELMAN J:   But why does the number of people matter?  I mean, if there is a situation where there is only two people that could possibly have committed it, and yet both of them have extremely strong tendencies, then that would presumably be a much weaker tendency case than one where there were a 100 people, of which 99 had very little prospect or tendency to have committed the offence.

MR BAKER:   In this particular case, when one talks about tendency, we are talking about an example of, where in the days leading up to it, the week leading up to this alleged offence, the applicant was the person who had the greatest opportunity, but in addition to that, the similarity of the tendency was that, in this sort of tendency, which was to deliberately inflict harm on this child, that that was significant because the applicant submits that there is a lack of similarity.

The similarity that we focus on is the asserted deliberate nature of the conduct, which is to deliberately inflict harm on the child, and where a person – in this case, the applicant – repeatedly acts in a similar way, or acts in a similar way towards that same person, it illuminates the nature of the particular relationship that exists between them, and in doing so it makes it more probable that the applicant committed the charged act towards the same child in the context of that relationship.

And so that tendency, which here is to deliberately inflict physical harm on TM, is to be assessed in circumstances where, 10 days later, the child had harm inflicted upon her.  The respondent ‑ ‑ ‑ 

EDELMAN J:   What do you say about Mr Glisson’s submission that the tendency notice, which was expressed in terms of deliberately inflict physical harm on the child, was expressed at a very high level of generality?

MR BAKER:   The respondent submits that it is not at a high level of generality because it relates to that particular child and the physical harm upon that child – as opposed to something more general.  It is accepted that there is a difference in nature and degree between the deliberate immersion of a child in hot water and the blunt force trauma that inflicted the injuries in this case.  But what the respondent points to as to the tendency is the infliction of physical harm to the child and, in the submission of the respondent, in the circumstances, that has significant probative value.

If I can put it this way, the fact that the applicant had deliberately inflicted physical harm on that child in the weeks preceding the charged

offence, the respondent submits that was capable of rationally affecting to a significant extent the assessment of the probability of the existence of a fact in issue, namely whether – which of those three possible perpetuators inflicted the fatal injuries to the child.  And it is in that way that the respondent submits that it had significant probative value and that the Court of Criminal Appeal was correct to find the trial judge did not err in that respect.

KIEFEL CJ:   Yes, thank you, Mr Baker.  Do you have anything in reply, Mr Glissan?

MR GLISSAN:   Yes.  I am sorry, your Honour, I was muted again.  Merely one thing rising out of questions that Justice Edelman made in relation to the number of people – of whether there was a large class or a limited three – the only proposition we would say is the fact that there were only three people here is something that might be thought to increase the risk of the evidence being misused, and therefore increase the reason to be so much more careful about its admission and consistency with the principle the Court expressed in Hughes.

It is arguable, in my submission, that the Court of Criminal Appeal, acting in the way it did, has not put a gloss on Hughes – and it ought not to be allowed to remain.  Those are our submissions.

KIEFEL CJ:   Yes, thank you.  The Court will adjourn briefly to consider the course that it will take.

AT 12.58 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.01 PM:

KIEFEL CJ:   The extension of time sought is granted in the interests of justice.  There will be a grant of special leave.  What is your time estimate, Mr Glissan?

MR GLISSAN:   Your Honour, we think that it probably will need a day for the matter to be properly and fully agitated.

KIEFEL CJ:   Would you agree with that, Mr Baker?

MR BAKER:   I would have thought half a day, your Honours.

KIEFEL CJ:   I would have, too, but Mr Glissan thinks it is going to take a little – say, certainly no more than one day, Mr Glissan.

MR GLISSAN:   Certainly that, your Honour.

KIEFEL CJ:   Yes.  Very well.  The Court will now adjourn.

AT 1.02 PM THE MATTER WAS CONCLUDED