[2009] NSWCCA 70
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1
[2010] NSWCCA 194
Donohoe v R [2012] NSWCCA 176
Ellis v R (2003) 58 NSWLR 700
[2003] NSWCCA 319
FL v R [2020] NSWCCA 114
Hili v The Queen
Source
Original judgment source is linked above.
Catchwords
[2011] NSWCCA 26
Clarkson v R (2007) 209 FLR 387[2009] NSWCCA 70
Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1[2010] NSWCCA 194
Donohoe v R [2012] NSWCCA 176
Ellis v R (2003) 58 NSWLR 700[2003] NSWCCA 319
FL v R [2020] NSWCCA 114
Hili v The QueenJones v The Queen (2010) 242 CLR 520[2010] HCA 45
Hofer v R [2019] NSWCCA 244
Hughes v The Queen (2017) 263 CLR 388[2017] HCA 20
Ilievski v RNolan v R [2018] NSWCCA 164
IMM v The Queen (2016) 259 CLR 300[2018] HCA 52
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 (Mason J)[1986] HCA 40
Moodie v R [2020] NSWCCA 160
O'Keefe v RR v O'Keefe [2009] NSWCCA 121
Pfennig v The Queen (1995) 182 CLR 461[2002] NSWCCA 386
R v Dennis [2009] NSWSC 1357
R v Ford (2009) 201 A Crim R 451[2009] NSWCCA 306
R v JK [2018] NSWSC 250
R v LNR v AW [2017] NSWSC 1387
R v Mostyn (2004) 145 A Crim R 304[2004] NSWCCA 97
R v Pfitzner [2009] NSWSC 1267
R v Stewart (2001) 52 NSWLR 301
[1984] HCA 5
Taleb v R [2015] NSWCCA 105
The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846
Judgment (11 paragraphs)
[1]
THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE
[2]
Ground 1 - The sentencing judge erred in finding that the offence was above the middle of the range of objective criminality
[3]
The findings of the sentencing judge
The sentencing judge set out the tendency evidence which had been admitted in the course of the trial as follows (at [10]-[12]):
10. In late March 2014, Ms Sipple, who provided child care to TM, noticed a bruise on TM's arm and on asking the child "What happened to your arm?", TM said "[The applicant] did it. [The applicant] hurt me."
11. TM disclosed to her maternal grandmother in the weeks prior to Easter that the prisoner had previously punched her in the face when she was "naughty". This complaint was dismissed by the prisoner as nothing more than pretend punching in the course of play.
12. TM complained to her mother on 10 April 2014 that the prisoner had "hurt her neck again" MW sent this complaint to the prisoner via text message at the same time that MW sought information from the prisoner about the burns to TM's feet and buttocks. The prisoner denied ever deliberately harming the child.
On the basis of that evidence, her Honour concluded (at [13]-[14]):
13. On the basis of the combination of the evidence of direct complaints by TM to others of harm inflicted upon her by the prisoner, corresponding with the appearance of bruising to the child's arm, face and neck, I accept beyond reasonable doubt that the prisoner intentionally assaulted the child on those occasions. I accept that the child was also bruised in the course of other activities not attributable to the prisoner but that does not detract from the reliability of the three spontaneous statements to which I have referred.
14. In summary, I find beyond reasonable doubt that the prisoner engaged in a deliberate course of conduct consisting of intentional assaults upon TM, culminating in the infliction of the fatal injuries on 20 April 2014. The commission of these previous assaults affects the assessment of the objective gravity of the offence of murder: Baines v R [2016] NSWCCA 132 at [6] per Basten JA, [127] and [129] per Fagan J; Ross v R [2016] NSWCCA 176.
Her Honour then turned to the circumstances of the applicant's offending. Having recounted (at [17]) the injuries sustained to TM, her Honour said (at [18]):
18. I am unable to find beyond reasonable doubt that the prisoner inflicted more than one blow, but given the extensive and fatal nature of the injuries, that fact is of little consequence. I am satisfied beyond reasonable doubt that it would have been obvious to the prisoner that he had very seriously injured the child and that urgent medical attention was imperative. I am fortified in that view by the prisoner's account to MW when she returned to the unit and his evidence at trial.
The Honour continued (at [21]):
21. The prisoner, who is a well-built adult male, struck a defenceless and vulnerable child who was left in his care, and knowing that he must have inflicted very serious injuries upon her, chose to deflect MW from discovering the condition of the child. Any claims that the prisoner made to police and to the court that he regarded his relationship with the child as one of father and daughter are entirely worthless in the face of such conduct.
Having made reference to the Victim Impact Statements which were before the Court, her Honour concluded (at [24]):
24. Given that the standard non parole period inherently reflects the objective gravity of this offence committed against a person under the age of 18 years, and children are regarded by the law as vulnerable persons, it is not appropriate to separately consider those factors under s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that might otherwise aggravate the offence. However, the abuse of the position of trust held by the prisoner and the very young age of this child are nonetheless features of this offence that figure in the assessment of its objective gravity. The Crown conducted its case upon the premise that the prisoner intended at least to cause grievous bodily harm, rather than to kill. Taking those matters into account, I regard the objective gravity of the offence as more than moderately above mid range.
[4]
Submissions of the applicant
Senior counsel for the applicant submitted that the conclusion of the sentencing judge that the offending was more than moderately above the mid-range of objective seriousness had been made on the basis of a number of erroneous factual findings including, in particular, the finding that the applicant had engaged in a series of assaults on TM causing bruises to her arms, face and neck. Senior counsel submitted that this conclusion was erroneous because there was no evidence of any injury to TM's face or neck, and that accordingly, there was no basis upon which to conclude that any earlier assault of TM had occurred.
It was further submitted that the finding of the sentencing judge that TM had been assaulted by the applicant on previous occasions was not in accordance with the evidence because TM had made no complaint about bruising to her face and head. It was submitted that at its highest, the evidence supported a conclusion that TM had said that:
1. a bruise on one of her arms had been caused by the applicant; and
2. the applicant had hurt her neck in some unidentified way.
It was further submitted that any statements said to have been made by TM about these matters were not reliable, and that in reaching her findings the sentencing judge had either forgotten, or ignored, evidence given in the trial that TM had made false allegations of being assaulted by her childcare minder. In this regard it was submitted that the evidence established that TM had lied to her mother by claiming to have been spanked by her childcare minder when this was clearly not so, and that there were other occasions on which it was evident that what TM had said was demonstrably untrue.
Senior counsel for the applicant further submitted that the sentencing judge had erred by using the evidence of the previous instances in which TM was said to have sustained injury at the hands of the applicant to aggravate the offending. It was submitted that such evidence could only be properly used to deny the applicant the leniency to which he might otherwise have been entitled had his offending been isolated.
Finally, senior counsel for the applicant emphasised that the Crown had put its case on the basis of the applicant having had an intention to cause grievous bodily harm as opposed to an intention to kill. It was submitted that in these circumstances, and bearing in mind the fact that an intention to inflict grievous bodily harm involves lesser criminality, the finding of the sentencing judge that the offending was above the mid-range was erroneous.
[5]
Submissions of the Crown
The Crown accepted that the conclusion reached by the sentencing judge as to the objective seriousness of the offending was based, at least in part, on the finding that the applicant had previously committed a series of assaults upon TM which had culminated in the infliction of the fatal injuries. However, the Crown submitted that there was photographic evidence of bruising to TM's face and neck which provided a proper evidentiary basis for that finding.
The Crown further submitted that in assessing the objective seriousness of the offending it was open to the sentencing judge to take into account not only the fact that the applicant had been found guilty of the murder of TM, but that he had engaged in other acts of violence towards her before her death. It was submitted that on the whole of the evidence it was also open to the sentencing judge to conclude that the applicant had been the cause of TM's previous injuries, and that such conduct necessarily affected the assessment of the objective seriousness of the offending of which he was found guilty.
Finally, the Crown submitted that any assessment of the objective seriousness of the offending was a matter for the sentencing judge. Leaving aside the previous assaults by the applicant on TM, the Crown submitted that there were other factors which supported the sentencing judge's assessment, including the force of the fatal blow struck by the applicant, and the injuries which were caused to TM as a consequence, and which resulted in her death.
[6]
CONSIDERATION
Exhibit C in the trial consisted of photographs taken of TM on 19 March 2014. Those photographs demonstrated bruising to both sides of, and the area underneath, TM's jaw line. They amply supported her Honour's finding that there was bruising to TM's face and neck. Any suggestion that TM did not make any complaint about bruising to her face and head is entirely irrelevant in light of the photographic evidence, as is the related suggestion that any complaint TM might have made in that regard is unreliable.
A further complaint raised by the applicant under this ground is that the sentencing judge erred by taking into account, in her assessment of the objective seriousness of the offending, the previous instances on which TM was injured at the hands of the applicant in circumstances where those matters were not the subject of any charge(s). In LN v R [2020] NSWCCA 131 this Court considered, in not dissimilar circumstances, the basis on which such evidence may be taken into account on sentence. The applicant in that case was convicted (along with the child's mother) of the murder of a child, in circumstances with where there was evidence of previous assaults having been perpetrated upon the victim (at [34]). The sentencing judge found that these assaults were inextricably linked to the child's murder (at [34]). Basten JA made the following relevant observations (at [54]):
54. So long as it is legitimate to view an offence in context, which may include other activities of the offender, it is apparent that context may either render the objective seriousness of the offending greater than would otherwise have appeared or, depending on the extent to which different criteria are involved, may increase the moral culpability of the offender. In either case, the result may be to increase the sentence beyond that which might have been imposed had the surrounding events not been examined. There is no reason in principle to conclude that conduct which may involve criminality should be excluded, whereas conduct not itself criminal could be examined. On any view, conduct adverse to the offender's interests must be established beyond reasonable doubt.
55. The applicant sought to distinguish Baines on the basis that, despite the language used, no more was intended than use of other criminal conduct to remove any element of leniency, and on the basis that Baines itself was dealing with other charged conduct of which the offender was convicted. However, these submissions take no account of Fagan J's reliance upon Einfeld, which involved similar but uncharged conduct. Nor is it clear in principle why a conviction could increase the seriousness of another offence, whereas uncharged conduct could not.
[7]
Submissions of the applicant
Senior counsel for the applicant advanced this ground on two separate bases, the first of which was that the sentencing judge had made a number of individual errors.
Firstly, it was submitted that her Honour had failed to take into account, as a mitigating factor, the applicant's prior good character. Senior counsel pointed to the fact that the applicant had a good work history, and only a minor criminal history for summary offences, none of which involved offences of violence or had resulted in the imposition of a sentence of imprisonment. It was further submitted that there was a substantial volume of evidence placed before the sentencing judge, in the form of testimonials, which supported a conclusion that the applicant was a person of prior good character. Senior counsel for the applicant submitted that the sentencing judge had made no, or no identifiable, allowance for any of these matters, and that her Honour had paid no recognition, and given no weight, to the applicant's prior good character.
Secondly, it was submitted that the sentencing judge had erred by failing to make any allowance for the applicant's youth. It was submitted that apart from a passing reference to his age (at [25]), her Honour had not otherwise referred to the issue, from which it was clear that her Honour had not taken it into account as a mitigating factor. It was submitted that this conclusion was supported by the fact her Honour had made no reference to the principles governing the sentencing of young offenders, which highlight the necessity to place particular emphasis on an offender's rehabilitation.
Thirdly, it was submitted that the sentencing judge had failed to make any allowance for the fact that the applicant was likely to serve all or part of his sentence in some form of protective custody. It was submitted that although the sentencing judge had acknowledged that this would be the case, such acknowledgement had not been reflected in any reduction of the sentence which was imposed.
Fourthly, it was submitted that her Honour had failed to make any assessment as to the likelihood of the applicant reoffending. Senior counsel submitted that the applicant was entitled to a finding in his favour that he was unlikely to reoffend, based on his limited criminal record, his lack of any history of violent offending, and his general good character.
[8]
Submissions of the Crown
To the extent that the applicant asserted that his prior good character was not properly taken into account by the sentencing judge, the Crown emphasised the fact that her Honour made reference to, and obviously took into account, the evidence of the applicant's character. However, the Crown pointed out that her Honour had also found that the applicant had previously assaulted TM. It was submitted that in these circumstances there was no error on the part of the sentencing judge in the manner in which she approached the issue of the applicant's character.
In terms of the applicant's age, the Crown pointed to the fact that at the time of the offending the applicant was aged 23, in full-time employment, and in a relationship of loco parentis to TM. It was submitted that in all of these circumstances, the applicant was not properly regarded as a young offender for the purposes of sentencing.
In terms of the conditions under which the applicant will serve his sentence, the Crown submitted that there was little evidence before the sentencing judge which went to that issue, and no evidence that any condition(s) under which the applicant would serve his sentence would be onerous when compared with the conditions to which other inmates were subject.
As to the asserted absence of any assessment of the applicant's likelihood of reoffending, the Crown pointed out that although such a submission was made on sentence, there was no evidence advanced in support of it. The Crown submitted that in those circumstances, the sentencing judge had been left to deal with the matter in that context, and that her Honour had adequately done so in assessing the applicant's prospects of rehabilitation.
As to the second basis upon which this ground was advanced, the Crown submitted that the applicant's reliance on sentences imposed in other cases was to be approached bearing in mind the limitations which govern the use of such material. In this regard, the Crown pointed to the fact that a standard non-parole period of 25 years' imprisonment was applicable, and submitted that in evaluating any of the cases upon which the applicant relied, it was necessary to bear in mind that a number of them involved sentences imposed when a standard non-parole period of 20 years' imprisonment was applicable. The Crown submitted that in any event, an analysis of the decisions relied upon by the applicant did not support a conclusion that the sentence imposed was manifestly excessive.
[9]
CONSIDERATION
I turn firstly to the complaints of specific error advanced by senior counsel for the applicant, the first of which was that her Honour failed to take into account, as a mitigating factor, the applicant's prior good character.
In the course of her judgment, her Honour said (at [25]):
The prisoner is presently 27 years of age. He has a minor summary criminal history consisting of driving and property offences, which qualifies as a mitigating factor. The submission on sentence that the offence is out of character is accepted to the extent that there is nothing in the prisoner's history which suggests a propensity to violence. However, the findings I have made in relation to the tendency evidence do not allow me to conclude that the assault on 20 April 2014 was an isolated event.
Her Honour continued (at [26]):
… It is accepted that he enjoys the unqualified support of his family, as the 16 references from a number of family members attest. They describe the prisoner as a thoughtful, caring and attentive son, brother, and uncle, yet those traits are inconsistent with his treatment of TM.
It is apparent from these passages that her Honour:
1. took into account, as a mitigating factor, the absence of any relevant criminal history;
2. found that the offending was out of character, in the sense that there was nothing in the applicant's history which demonstrated a propensity towards violence;
3. specifically took into account the testimonials;
4. found that in light of the other incidents of violence to TM for which the applicant was responsible, the offending was not an isolated event.
In my view, it is abundantly clear from her Honour's findings that she dealt with this aspect of the matter appropriately. In particular, the suggestion that her Honour did not recognise, and made no allowance for, the evidence of the applicant's prior good character, is untenable given her express reference to a number of matters which had a direct bearing on that issue, and which her Honour obviously took into account.
As to the asserted failure on the part of the sentencing judge to take into account the applicant's youth, it must be emphasised that the applicant was 23 years of age at the date of the offending, and 27 years of age at the date of sentence. The principles relating to the sentencing of young offenders are well established (see KT v R [2008] NSWCCA 51 at [22]-[26]; LS v R [2020] NSWCCA 120 at [96]) and include the following:
1. considerations of general deterrence and principles of retribution are, in most cases of sentencing young offenders, of less significance than they would be when sentencing an adult for the same offence;
2. in recognition of the capacity for young people to reform and mould their character to conform to society's norms, considerable emphasis is placed on the need to provide an opportunity for rehabilitation;
3. the law recognises the potential for the cognitive, emotional and/or psychological immaturity of a young person to contribute to their breach of the law and accordingly, allowance will be made for an offender's youth and not just their biological age;
4. where the immaturity of an offender is a significant factor in the commission of the offence, the criminality involved will be less than if the same offence was committed by an adult;
5. although accepted to be of less significance than when sentencing adults, considerations of general deterrence and retribution cannot be completely ignored when sentencing young offenders and there remains a significant public interest in deterring anti-social conduct;
6. the emphasis given to rehabilitation rather than general deterrence and retribution when sentencing young offenders may be moderated when the young person has conducted him or herself in the way an adult might conduct him or herself, and has committed a crime of violence or a crime of considerable gravity; and
7. the weight to be given to considerations relevant to a person's youth diminishes the closer the offender approaches the age of maturity. A child offender of almost 18 years of age cannot expect to be treated substantially differently from an offender who is just over 18 years of age. However, the younger the offender, the greater the weight to be afforded to the element of youth.
[10]
RE-SENTENCE
I already made reference to the findings made by her Honour as to the deliberate course of conduct, constituted by a series of intentional assaults upon TM, in which the applicant engaged in the period leading up to TM's murder. For the reasons I have explained, the sentencing judge did not err in her treatment of those factors and in my view, they are clearly relevant in determining an appropriate sentence.
Leaving aside the applicant's earlier treatment of TM, the blow which caused TM's death was sufficient to tear TM's small intestine from the abdominal wall, and to result in a 12cm tear in the mesentry. The force with which such blow must have been struck will be self-evident from those injuries. That it was struck upon a completely defenceless child simply highlights the gravity of the offending.
Moreover, the offending occurred against a background of TM having been left in the applicant's care. As a consequence, the applicant was in a clear position of trust. That is clearly an aggravating factor. The fact that he had caused significant injury to TM was obviously immediately apparent to him, and caused him to attempt to deflect MW from becoming aware of TM's condition.
It is not necessary to place the offending at a particular level of some notional scale, by reference to which a determination is then made as to its level of objective seriousness. On any view of the evidence, the applicant's conduct which led to the death of TM constituted a brutal, callous and inhumane assault on a defenceless child, in circumstances where the person committing the assault had been placed in a position of trust, and where the offence was committed in TM's home, where she was entitled to feel safe and secure. Any further observation about the objective seriousness of such offending would be superfluous. It is necessarily deserving of severe punishment.
In terms of the applicant's subjective case, I have already concluded that there is no room for the application of the principles governing the sentencing of youthful offenders. The applicant has a minor criminal history consisting of driving and summary offences, none of which involved violence. In addition, a series of testimonials tendered in the applicant's case before the sentencing judge spoke of the applicant's loving and respectful demeanour, and the trust in which he is held by other members of his family. The applicant is entitled to the benefit of the fact that he has no significant history of prior offending and was a person of otherwise good character. However in my view, the weight that can be attached to that circumstance is limited given the evidence of his treatment of TM in the period leading up to the murder.
[11]
I certify that this and the 115 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law and of the Court.
Morna Lynch
Associate
Date: 19 October 2020
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 October 2020
R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97
R v Pfitzner [2009] NSWSC 1267
R v Stewart (2001) 52 NSWLR 301; [2001] NSWCCA 260
R v Straffen (1952) 2 QB 911
R v TL [2017] NSWSC 426
R v TL [2019] NSWSC 715
R v Warren Ross (No 2) [2013] NSWSC 2042
Shepherd v R [2011] NSWCCA 245
Sutton v R (1984) 152 CLR 528; [1984] HCA 5
Taleb v R [2015] NSWCCA 105
The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846; [2018] HCA 40
Vagg v R [2020] NSWCCA 134
Versluys v R [2008] NSWCCA 76
Vickers v R [2006] NSWCCA 60
Williams v R (2000) 119 A Crim R 490; [2000] FCA 18 1868
Zuffo v R [2017] NSWCCA 187
Category: Principal judgment
Parties: TL - Applicant
Regina - Respondent Crown
Representation: Counsel:
M Ramage QC/T Liu - Applicant
E Balodis - Respondent Crown
Ground 3 - The trial judge erred in admitting the evidence the subject of the Crown's Amended Tendency Notice of injury in the form of scalds/burns sustained by TM as tendency evidence
The admission of what the Crown relied on as tendency evidence was argued as a pre-trial issue. The Crown sought leave to have evidence admitted of some scalds/burns that had been sustained by TM to her feet and buttocks while in the applicant's care, 10 days before her death, as tendency evidence.
On 13 April 2017, Latham J heard pre-trial argument about the admission of tendency and coincidence evidence which the Crown sought to adduce. On 19 April 2017, Latham J ruled that the tendency and coincidence evidence was admissible and published reasons for that ruling. At [33] her Honour determined that the tendency/coincidence evidence had the requisite significant probative value and there was no relevant prejudicial effect that arose from it (R v TL [2017] NSWSC 426).
The evidence was admitted against the applicant on the basis that if the jury were satisfied beyond reasonable doubt that he had deliberately inflicted injuries on the child in the weeks preceding her death, it rendered it more likely that he caused the fatal injuries sustained by TM. The admission of the evidence was premised on the jury accepting that the applicant had in fact deliberately inflicted violence on the child.
It was common ground that the admission of this evidence was of considerable importance in the trial.
There was no dispute that TM had sustained some first degree burns or scalds and one third degree burn or scald (to her right foot) while in the care of the applicant.
As set out in the review of evidence, Dr Norrie gave evidence for the Crown as to the injuries suffered by TM based on photographs she had seen of those injuries and various medical records. She gave evidence that it only took about five seconds for a child to suffer a full thickness or third degree burn from water at a temperature of 60 degrees centigrade. Dr Norrie's evidence was that immediate and severe pain would result and that a child exposed to such hot water would "scream blue murder" (T612-614).
As well as burns to her feet, TM's buttocks were burnt in a pattern that was described as "doughnut sparing". That indicated that TM was sitting in the bath when the hot water rose and burned around that part of the skin that was pressed against the cold floor of the bath. It was the Crown case that TM's legs must have been clenched against her pelvis so that her knees were bent because the skin fold around her groin was not burned. The evidence of Dr Norrie supported the Crown's contention.
Consideration
The sections of the Act relevant to tendency evidence are ss 97 and 101. They provide:
"97 The tendency rule
(1) Evidence of the character, reputation or conduct of a person, or a tendency that a person has or had, is not admissible to prove that a person has or had a tendency (whether because of the person's character or otherwise) to act in a particular way, or to have a particular state of mind unless -
(a) the party seeking to adduce the evidence gave reasonable notice in writing to each other party of the party's intention to adduce the evidence, and
(b) the court thinks that the evidence will, either by itself or having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence, have significant probative value.
...
101 Further restrictions on tendency evidence and coincidence evidence adduced by prosecution
(1) This section only applies in a criminal proceeding and so applies in addition to sections 97 and 98.
(2) Tendency evidence about a defendant, or coincidence evidence about a defendant, that is adduced by the prosecution cannot be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant.
..."
The applicant contends that the incident in the bath was not sufficiently similar to the blunt force trauma that caused TM's death to be allowed to be tendency evidence that would go to prove that the applicant had caused TM's death. Clearly, the injuries suffered were different in nature and degree. This, however, was not fatal to the Crown submission as to the use of the tendency evidence.
There has been a recognised difference between proof of the commission of an offence and proof of the identity of the person who committed a proven offence when considering the admission of similar fact evidence at common law and evidence of tendency and coincidence under the Act.
In Sutton v R (1984) 152 CLR 528; [1984] HCA 5 the Crown relied upon evidence of similar facts to prove identity. Gibbs CJ (at 535) said:
"The present is such a case: the issue being identity, the question is whether each of the crimes was committed in a manner so strikingly similar to the others that a jury could reasonably conclude that the same person was guilty of all the crimes. ..."
At common law, propensity was also accepted as a means of identification. This was recognised in R v Straffen (1952) 2 QB 911 (Straffen) and by the High Court in Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 (Pfennig). What is notable about both of these cases is not only that propensity was admitted at common law but the factual matrix against which the evidence was admitted. Both accused were present, at a time proximate to the commission of the offence, at the scene of the crime. Thus their abnormal propensities revealed them to have been the person who committed the offence from the class of persons present at the crime scene and not from the general population.
Ground 2 - The trial judge erred in admitting inadmissible hearsay evidence
On 14 March 2017, the Crown gave notice that the prosecution intended to adduce evidence of a previous representation made by a person who was unavailable to give evidence (Hearsay Notice). The Hearsay Notice identified TM as the maker of the previous representation who was "unavailable" to give evidence of the fact sought to be proved by the previous representation. The Crown identified the substance of the evidence it intended to adduce as that contained in the statements given to police by Lee-Ann W and April Sipple.
This ground of appeal raises the issue of whether the evidence, the subject of the Hearsay Notice, should have been admitted as hearsay evidence because it satisfied an exception to the hearsay rule under s 65 of the Act. The provisions of the Act relevant to this ground of appeal are:
"65 Exception: criminal proceedings if maker not available
(1) This section applies in a criminal proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(2) The hearsay rule does not apply to evidence of a previous representation that is given by a person who saw, heard or otherwise perceived the representation being made, if the representation -
(a) ...
(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication, or
(c) was made in circumstances that make it highly probable that the representation is reliable, ..."
"66 Exception: criminal proceedings if maker available
(1) This section applies in a criminal proceeding if a person who made a previous representation is available to give evidence about an asserted fact.
(2) If that person has been or is to be called to give evidence, the hearsay rule does not apply to evidence of the representation that is given by -
(a) that person, or
(b) a person who saw, heard or otherwise perceived the representation being made,
if, when the representation was made, the occurrence of the asserted fact was fresh in the memory of the person who made the representation. ..."
"137 Exclusion of prejudicial evidence in criminal proceedings
In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant."
On 1 May 2017, there was a voir dire where the Crown tendered the statements of Ms W (TM's grandmother) and Ms Sipple (TM's aunt). The trial judge was referred to the paragraphs in the police statements covered by the Hearsay Notice.
The Crown also tendered what became Exhibit K, being a message between MW and the applicant on 10 April 2014 as follows:
"TM just came in telling me you hurt her neck again."
Consideration
It needs to be understood that there was no objection based on the hearsay rule. The argument in relation to each of the three pieces of evidence was based on the application of s 137 of the Act. There is a considerable body of authority to the effect that an objection phrased this way would implicitly acknowledge the admissibility of TM's hearsay representations, pursuant to s 65 of the Act. It follows that the applicant's reliance on s 65 of the Act is misconceived in that the trial judge did not err. Her Honour was never asked to give a ruling in accordance with s 65.
The authority for that proposition comes from the judgment of Simpson J in Vickers v R [2006] NSWCCA 60 (Vickers) and the considerable body of law which supports the approach in Vickers (Shepherd v R [2011] NSWCCA 245 at [26]; Bin Sulaeman v R [2013] NSWCCA 283 at [129]-[130]; Poniris v R [2014] NSWCCA 100 at [54]-[55] and Taleb v R [2015] NSWCCA 105 at [85]).
The Crown case in Vickers was that the accused had assaulted two men in the toilet of a club. The manager later gave a statement to police that "I heard him [the appellant] say that he was provoked in the male toilets". The manager was unavailable at trial. Over objection, the Crown adduced this representation by the manager. The objections that were made did not include an objection that the representations were hearsay and that s 65 of the Act did not apply. Instead, defence counsel relied upon s 137 of the Act. Accordingly, although the representation attributed to the accused was second hand hearsay and inadmissible, the trial judge was found not to have erred with respect to the admission of the evidence pursuant to s 65 of the Evidence Act. Hall J agreed with Simpson J on this point. The other judge, James J, did not express an opinion on this aspect of her Honour's reasoning but agreed that the appeal should be dismissed pursuant to the proviso.
In this case, the representations made by TM to Ms Sipple and to Lee-Ann W were first hand hearsay. It was common ground that the only two sections of the Act which had possible application to the representations in the evidence of Ms Sipple and Ms W were s 65(2)(b) and (c) of the Act. The Crown also accepted that s 65(2)(b) of the Act would not be available to the Crown because of the uncertainty of the time between the asserted fact, which was the relevant assault by the applicant upon TM, and her representation concerning that asserted fact. It followed, therefore, that the previous representation relied upon by the Crown could not be admissible pursuant to s 65(2)(b) had the point been taken.
Section 65(2)(c), however, does not have the temporal connection that s 65(2)(b) requires. Accordingly, it would have been open to the trial judge to conclude that the representations made by TM to Ms Sipple and Ms W were made in circumstances that made it highly probable that the representations were reliable.
Ground 5 - In the alternative to Ground 2 above, the trial judge erred in not giving a direction under s 165 of the Evidence Act 1995 (NSW) in relation to hearsay evidence of the child TM
The applicant relies upon Ground 5 in the alternative to Ground 2, i.e. if contrary to the submissions above in relation to Ground 2 the trial judge did not err in admitting the hearsay evidence, then her Honour erred in not giving a direction under s 165 of the Act. The applicant submitted that the trial judge, in the light of the evidence that established on its face that the deceased child was an unreliable witness, should have given a hearsay evidence warning under s 165(1)(a) of the Evidence Act concerning the evidence that the child told others that the applicant had allegedly hurt her on previous occasions.
The applicant submitted that s 165 of the Act requires a trial judge to give a warning about evidence falling into categories that might be unreliable, such as hearsay evidence. The applicant submitted that the obligation to give a direction under s 165 arises when pursuant to s 165(2) "a party so requests" a direction relating to categories of evidence set out in s 165(1)(a) which may be unreliable. Counsel for the applicant submitted that although he had requested a hearsay direction, the direction ultimately given was one concerned with the tendency evidence and how the jury was to approach that evidence.
The applicant submitted that the authorities on s 165 treated the provision as preserving the common law obligation to give a warning "whenever a warning is necessary to avoid a perceptible risk of miscarriage of justice arising from the circumstances of the case" (see R v Stewart [2001] NSWCCA 260; 52 NSWLR 301 at [86] per Howie J (see also at [148])).
The applicant noted that the Australian Law Reform Commission's commentary to the Act explained that s 165 requires the trial judge to direct a jury about the "weaknesses in the evidence and the need for care in deciding whether to accept it". The applicant accepted that in New South Wales where there is no request for a s 165 direction at trial, and the trial judge did not give a direction, an applicant needed to obtain leave under r 4 of the Criminal Appeal Rules to raise this ground of appeal. The applicant accepted that the Appeal Court must be satisfied that the absence of a direction led to a miscarriage of justice (Kanaan and Ors v Regina [2006] NSWCCA 109 at [156]).
The applicant submitted that he did request a hearsay direction but that the trial judge declined to give such a direction because her Honour believed that such a direction would be subsumed into a proposed tendency evidence direction. The applicant submitted that her Honour assumed that s 165 did not apply to evidence which was an exception to the hearsay rule and it should not be regarded as "falling within the hearsay category" for the purposes of s 165(1)(a) of the Evidence Act. The applicant submitted that this was an error because there were authorities to the effect that evidence admitted under a hearsay exception, such as s 65, remained amenable to a direction under s 165 (Vickers).
The proviso to s 6(1) of the Criminal Appeal Act
Even if the applicant had made out any of his grounds of appeal, the proviso to s 6(1) would apply.
The principles relating to the application of the proviso were summarised by Macfarlan JA in Hofer v R [2019] NSWCCA 244 at [51]-[58]:
"51 Decisions in recent years in which the High Court has considered the application of the proviso include Weiss; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689; Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 and OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438.
52 Principles of relevance to the application of the proviso in the present case that I derive from these authorities are as follows.
53 First, in applying the proviso, the "fundamental question" for the appellate court is to decide whether there has been a substantial miscarriage of justice (Kalbasi at [16]).
54 Secondly, it is a necessary but not sufficient condition for application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused's guilt beyond reasonable doubt (Weiss at [44]; Baiada at [29]; Lane at [38]). Where an appellate court is so satisfied, this "will in many instances support the conclusion that there has been no substantial miscarriage of justice" (Kalbasi at [13]; see also Weiss at [44]; Baini at [30]). In some cases, it will not. Where the appellate court is not satisfied that the accused's guilt has been proved beyond reasonable doubt on admissible evidence there "will always be a substantial miscarriage of justice" (Kalbasi at [13]).
55 Thirdly, for the purpose of determining whether there has been a substantial miscarriage of justice, the appellate court must undertake an independent assessment of the whole of the record of the trial (Weiss at [41] and [43]). That examination requires account to be taken of the jury's guilty verdict (Weiss at [43]).
56 Fourthly, there are natural limitations on the appellate court's ability to determine whether the accused's guilt has been proved beyond reasonable doubt, particularly in cases in which the credit of witnesses is of importance because the appellate court has not seen and heard the witnesses give their evidence (Kalbasi at [15]; OKS at [31]; Weiss at [41]). Reliance by the appellate court on the jury's guilty verdict may enable those limitations to be overcome (Baini at [32]). Such reliance avoids the appellate court impermissibly exercising the functions of the jury (Lane at [48]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]-[66]).
57 Fifthly, the appellate court will not be able to rely on the jury verdict where the verdict may have been affected by errors in the trial process (OKS at [29]; Kalbasi at [15]; Lane at [48]; Collins at [36]). In some cases however an error will have been of no significance in determining the verdict returned by the jury (Weiss at [43]).
58 Sixthly, in an extreme case the appellate court may be able to rely, for the purpose of determining whether guilt has been proved beyond reasonable doubt, not on the verdict, but on its own conclusion that oral evidence contrary to the Crown's case is obviously false (Castle at [66])."
Ground 3: alleged inadmissibility of tendency evidence
Because the admissibility of tendency evidence admits of only one correct answer, the question for this Court is whether the evidence was admissible and not whether it was open to the trial judge to find that it was admissible: The Queen v Bauer [2018] HCA 40; (2018) 92 ALJR 846 at [61] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ). The admissibility of the evidence depended on whether it had significant probative value.
The statutory test in s 97 of the Evidence Act 1995 (NSW) has been the subject of much judicial consideration. However, the statements of principle in the authorities must be read in the context of the facts of the particular case and not as a gloss on the section itself. The applicant relied on the statement in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20 at [39], where the majority (Kiefel CJ, Bell, Keane and Edelman JJ) said:
"In criminal proceedings where [tendency evidence] is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence."
In Hughes, the appellant was charged with 11 counts of sexual offences against young children. The acts charged and the circumstances of the alleged commission of each offence varied. The appellant's defence was that each of the complainants had fabricated her account. The High Court dismissed an appeal from a conviction after a trial in which evidence of each complainant had been admitted as tendency evidence in respect of the other counts. The alleged tendency was that the appellant acted in a particular way and had a particular state of mind, namely: he had a sexual interest in female children under the age of 16 years and that he used his social and familial relationships and work environment to gain access to them so that he could engage in sexual activities. The passage extracted at [39] was said in the context of a distinction being made between a case, such as Hughes, where identity was not in issue, and one where it was.
However, identity can arise in different ways and contexts. There is a significant distinction between, on the one hand, a prosecution of an accused where the identity of the perpetrator is at large and, on the other, where the class of persons who could be the perpetrator is limited to, as in this case, a small number of people (three in the present case). The assessment of whether tendency evidence has significant probative value depends on this context. The applicant's case at trial was that the Crown could not prove that he was the one who killed the deceased because it could not prove that neither MW, nor DM, killed her. Thus, it was not necessary for the tendency evidence to bear particular hallmarks, which could identify a perpetrator (by distinguishing the perpetrator from others) on the basis of similarity of conduct, as long as the tendency evidence was significantly probative of the alleged tendency.
Application for leave to appeal against sentence
I agree with Bellew J's reasons for rejecting ground 1. As to ground 2, I agree with his Honour's reasons, except those relating to the complaint that her Honour failed to make an assessment as to the likelihood of re-offending. It is evident from the terms of s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Act) that whether the applicant is likely to re-offend is a separate matter from the offender's prospects of rehabilitation. Thus, a consideration of one does not amount to a consideration of the other. I accept that her Honour did not make an assessment of the appellant's prospects of re-offending. However, I am not persuaded that this constituted an error.
The matters referred to in s 21A(2) and (3) of the Act are to be taken into account on sentencing if they are "relevant": s 21A(1)(a) and (b). The failure to take into account a relevant consideration will not amount to an error which causes the discretion to miscarry if it is insufficiently material to have affected the decision: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40 (Mason J); [1986] HCA 40. I consider the likelihood of re-offending in the present case to be either irrelevant, or to fall into the category referred to by Mason J as being insufficiently material to have affected the sentence. The offender was relatively young when he committed the offence. When his non-parole period expires, he will be substantially older and will be at a different stage of his life. Any assessment of the likelihood of him re-offending at the time the sentence was imposed could only be, in the circumstances of the present case, so speculative as to be unhelpful. I do not consider that this Court ought encourage a formulaic approach to sentencing by requiring sentencing judges to address all circumstances listed in s 21A, whether or not they are truly relevant.
It follows that I do not consider there to have been any error and therefore the occasion for this Court to re-sentence the appellant does not, on my view, arise. As referred to above, I agree with the orders proposed by Bellew J, although for reasons that differ in the respects set out above, from those of his Honour.
BELLEW J: I agree with Hoeben CJ at CL and the orders that his Honour proposes in relation to the appeal against conviction.
In the earlier decision of Baines v R [2016] NSWCCA 132 at [5], Basten JA had said:
The first ground of appeal alleged that the sentencing judge had taken into account "uncharged acts" as a factor increasing the objective seriousness of the offences. That was simply not so: what the judge said was that the applicant had embarked on a course of conduct, by reference to the 13 offences which were before her for sentence, involving conduct extending over some four years. It would, of course, be wrong in sentencing an offender for a specific offence to increase the penalty on account of other misconduct, whether separately charged or not. However, it is not an error to assess the seriousness of the specific offence by reference to surrounding circumstances, including other offending which is established beyond reasonable doubt.
These observations are at odds with the narrow approach for which senior counsel for the applicant contended. It was clearly open to her Honour to take the course that she did and to have regard to the applicant's previous assaults on TM.
The Crown case at trial was that the applicant's intention was to cause grievous bodily harm to TM, as opposed to kill her. There is no doubt that the state of mind in which an offence of murder is committed is directly relevant to a sentencing judge's assessment of the objective seriousness of the crime: Apps v R [2006] NSWCCA 290 per Hunt JA at [5]; per Simpson J (as her Honour then was) at [49]. There is also no doubt that as a general proposition, an intention to kill tends toward a greater level of objective seriousness: Apps at [49] per Simpson J. However, it does not follow that in a case where the intention relied upon by the Crown is confined to an intention to cause grievous bodily harm that the objective seriousness will fall below the mid-range: Versluys v R [2008] NSWCCA 76 at [32] per McClellan CJ at CL (Simpson and Price JJ agreeing).
Given the significant findings reached by the sentencing judge at [13]-[14], [18], [21] and [24], all of which were supported by the evidence, there was no error in her Honour's assessment of the objective seriousness of the offending and no error in her Honour's determination that the offending fell moderately above the mid-range of objective seriousness.
The second basis upon which this ground was advanced was that even if no specific error was found, the sentencing judge had imposed a sentence which was nevertheless manifestly excessive. In advancing this submission, senior counsel for the applicant again emphasised that the Crown case was based upon an intention by the applicant to cause grievous bodily harm, as opposed to an intention to kill. He submitted that whilst there may be cases where the circumstances surrounding the commission of the offence of murder based upon an intention to cause grievous bodily harm could elevate the offending to above the mid-range level, the present was not such a case.
Further, senior counsel submitted the sentence was manifestly excessive by reference to sentences imposed in other cases involving the murder of children. It was submitted that the imposition of a sentence of this severity reflected the fact that latent error had affected the exercise of the sentencing discretion, leading to the imposition of a sentence which was not merely stern, but manifestly excessive.
The Crown further submitted that the sentence imposed on the applicant was entirely consistent with the findings of the sentencing judge as to the objective seriousness of the offending, and her Honour's assessment of the applicant's subjective case.
I am not satisfied that the principles applicable to the sentencing of youthful offenders had any role to play in the present case. This is so for a number of reasons.
Firstly, in circumstances where the applicant was aged 23 at the time of the offending, and 27 at the time of sentence, there was no evidence before the sentencing judge that immaturity on the part of the applicant played any role in the commission of the offence.
Secondly, the principles which govern the sentencing of youthful offenders may be moderated when the offender has conducted himself or herself in the way that an adult might, and has committed a crime of violence or a crime of considerable gravity. That is precisely what occurred in the present case.
Thirdly, the weight to be given to youth diminishes the closer the offender approaches the age of maturity, such that the younger the offender, the greater the weight to be afforded to his or her youth. It only needs to be said that in the present case that the applicant was substantially older than 18 years of age.
It follows that in my view, her Honour did not err in failing to make an allowance for the applicant's youth. The circumstances of this case did not call for the application of the principles I have set out.
As to the complaint that the sentencing judge failed to make allowance for the fact that the applicant was likely to serve all or part of his sentence in some form of protective custody, exhibit 2 on sentence was an affidavit of the applicant's solicitor, Peter Mann. Mr Mann deposed to the fact that he had received instructions from the applicant that he had been housed in protection for the entirety of his time in custody, and that he was in fear of his life, as a consequence of which he had been placed in segregation on the basis of a risk assessment which had determined that there was a real and immediate threat to his safety. The applicant also instructed Mr Mann that he proposed to make an application to be housed in a "protection non-association area" upon being sentenced.
Her Honour said the following (at [27]):
It is also accepted that the prisoner is likely to serve part or all of his sentence in some form of protective custody, whether that is at his own request or by way of his custodial management. However, it is by no means clear what the nature of his custodial conditions will be. The extent of the evidence before me on this issue derives from an affidavit from the prisoner's solicitor which sets out the prisoner's understanding of the conditions attaching to his custody as a Protection Non Association inmate. The actual custodial conditions will be a function of his post sentence classification and the prison where he is directed to serve his sentence.
The affidavit of Mr Mann was based upon the applicant's instructions and the evidence did not extend beyond the matters I have outlined. In particular, there was no evidence before the sentencing judge as to:
1. the precise nature and extent of the applicant's conditions of custody;
2. the extent to which those conditions differed from those conditions to which other inmates were subject; and
3. whether the present conditions would continue for the duration of the applicant's sentence.
If an offender wishes to receive some mitigation of sentence by reason of the conditions of imprisonment, it is for the offender to lead evidence of what those conditions entail. A bald assertion that conditions are more onerous is not sufficient: Clarkson v R (2007) 209 FLR 387; [2009] NSWCCA 70 at [273]; R v Mostyn (2004) 145 A Crim R 304; [2004] NSWCCA 97 at [179]-[181]. It is clear that her Honour specifically turned her mind to this issue and concluded that there was a paucity of evidence as to the nature of the applicant's custodial conditions. That conclusion was entirely open.
As to the complaint that her Honour failed to make an assessment as to the likelihood of the applicant reoffending, s 21A(3) Crimes (Sentencing Procedure) Act 1999 (NSW) mandates that a number of mitigating factors must be taken into account in determining the appropriate sentence for an offence to the extent to which they are applicable. They include:
1. that the offender is unlikely to reoffend - s 21A(3)(g); and
2. that the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise - s 21A(3)(h).
Her Honour addressed the applicant's prospects of rehabilitation as follows (at [26]):
Whether his prospects of rehabilitation are promising is doubtful, certainly as long as he refuses to acknowledge his guilt in the face of a very strong, albeit circumstantial Crown case. It is accepted that he enjoys the unqualified support of his family, as the 16 references from a number of family members attest. They describe the prisoner as a thoughtful, caring and attentive son, brother, and uncle, yet those traits are inconsistent with his treatment of TM.
The issues of an offender's prospects of rehabilitation and likelihood of re-offending are separate and distinct. The necessity to address both was emphasised in Zuffo v R [2017] NSWCCA 187 where Price J (with whom Hoeben CJ at CL and Adamson J agreed) said the following (at [47]):
[47] Although commonly linked, the concepts are not the same. In R v Pogson (2012) 82 NSWLR 60; [2012] NSWCCA 225, McClellan CJ at CL and Johnson J drew a distinction between the unlikelihood of re-offending and rehabilitation. Their Honours said at [118]-[121]:
"[118] Inherent in Mr Duff's account of punishment is the assumption that rehabilitation addresses the moral sensibilities of the offender, not just his or her propensity to reoffend. Indeed, were it otherwise, there would be little to distinguish rehabilitation from specific deterrence, which is separately provided for by s.3A(b) Sentencing Procedure Act. To the extent that moral self-correction and renunciation of one's own wrongdoing are captured by the concept of rehabilitation for which s.3A(d) of the Act provides, it can fairly be said that the present respondents are in need of rehabilitation, notwithstanding that they are unlikely to reoffend.
…
[120] Although it is common for judges, when considering the subjective characteristics of an offender, to evaluate the prospects of the person reoffending and to express an opinion as to whether the person is unlikely to reoffend, it could never be said that a person who has once offended would never reoffend. Furthermore, a person who has offended will always be in need of the opportunity to establish themselves as a law abiding and productive member of the community. Rehabilitation is a concept which is broader than merely avoiding reoffending.
[121] A finding that an offender is not likely to reoffend may often be made not only because of expressions of remorse, but because the fact that the offender has been caught, convicted and punished (which may include extra-curial punishment) will operate to deter the offender from future wrongdoing. Deterrence will operate in respect of an offender even though the offender may not have restructured his or her thinking so that they thereafter consciously determine to re-establish themselves as a positive member of society."
In the present case, the sentencing judge did not refer to s 21A(3)(g) and did not otherwise make any reference to, or undertake an assessment of, the applicant's likelihood of reoffending. Although the Crown sought to argue before this Court that her Honour had addressed that issue when assessing the applicant's prospects of rehabilitation, the Crown ultimately accepted in oral argument that the two considerations were separate.
On a fair reading of her Honour's judgment, no consideration was given to the applicant's likelihood of reoffending. Error has therefore been established, and this Court must exercise the sentencing discretion afresh. In these circumstances, it is not necessary to separately consider the complaint of manifest excess, but in the exercise of the sentencing discretion I have taken into account the submissions made by the parties in that respect.
It is difficult to make a determination of the applicant's prospects of rehabilitation. The testimonials to which I have already referred indicate that he enjoys the unqualified support of his family. Assuming that such support remains, it will assist the applicant's rehabilitation on his release. At the same time however, the applicant apparently continues to refuse to acknowledge his guilt. In these circumstances, I assess his prospects of rehabilitation as guarded.
In terms of the applicant's likelihood of reoffending, that is again a difficult determination to make. However, in the absence of any history of violent offending, and in circumstances where the evidence of violence was confined to that perpetrated on TM, I am prepared to conclude that he is unlikely to reoffend, at least not in the same way. There is no basis for a finding of special circumstances.
Senior counsel for the applicant referred the Court to a number of sentences imposed in previous cases involving the murder of children, and which were said to support a conclusion that the sentence imposed on the applicant was manifestly excessive. Before considering those cases, it is necessary to make some preliminary observations as to how that material should be addressed.
In Moodie v R [2020] NSWCCA 160 Bell P (with whom Davies and N Adams JJ agreed) addressed the question of the use to which sentences imposed in cases of like offending can be put. In doing so, his Honour disagreed with the views expressed in respect of that issue by Wilson J (with whom R A Hulme and Hamill JJ agreed) in FL v R [2020] NSWCCA 114 at [77]-[79]. His Honour concluded (at [83]) that the proper and careful use of comparative sentences plays an important role in promoting consistency of sentencing.
Regardless of what view might be taken in relation to that issue, two propositions regarding the use, for comparative purposes, of sentences imposed in cases of like offending are incontrovertible. The first, is that consistency in sentencing requires consistency in the application of relevant legal principles, not mathematical equivalence: Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [48]-[49]. The second, is that whilst sentences imposed in cases of like offending may establish a range of sentences which have been imposed in the past, they do not establish that such range is the correct range, nor do they establish the upper and lower limits are the correct upper and lower limits of any such range: Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194 at [303]-[305] per Simpson J (as her Honour then was).
Further, a number of the cases to which the Court was referred in the present case were determined prior to the increase of the standard non-parole period applicable to this offending from 20 years' imprisonment to 25 years' imprisonment. I have had no regard to the outcomes in any of those earlier cases.
In R v Dennis [2009] NSWSC 1357, the offender had been found guilty by a jury of the murder of the 23 month old son of his girlfriend whilst in his care. The offender had hit the child's head with a blunt instrument, and/or had forced his head against a wall, in offending which was found to have been spontaneous. The offender was 19 years of age at the time. He had come from an indigenous family and his mother had died when he was 15 years of age. The sentencing judge found that the offender was "a young man of exemplary character" whom he did not think would offend again (at [14]). Intelligence testing placed the offender in the bottom 7% of the population and with an impaired cognitive ability (at [15]).
The sentencing judge concluded (at [24]) that there were strong subjective features, including the offender's prior good character, and what was described as a "remarkable work history". The sentencing judge also placed emphasis upon the offender's young age, his good prospects of rehabilitation, and the fact that he would have to serve a substantial part of the sentence on protection. In all these circumstances the offender was sentenced to imprisonment for 26 years and 8 months, with a non-parole period of 20 years.
It will be evident that the offender in that case had the benefit of a number of significant subjective factors upon which the present applicant is unable to rely. Moreover, there was no evidence of any mistreatment of the young child by the offender other than that which gave rise to the charge. These are all important factors which distinguish the case from that of the applicant.
In R v Pfitzner [2009] NSWSC 1267 the offender pleaded guilty to the murder of her two year old son. The sentencing judge concluded that the young child had died of asphyxiation as a consequence of the act(s) of the offender. The offender was the subject of a bond to be of good behaviour for an offence of assault at the time of the offending which the sentencing judge regarded as an aggravating factor (at [43]). His Honour also took into account that the offender's record included offences of violence such as assaulting and resisting police officers. The sentencing judge concluded (at [83]) that the offender committed the offence in circumstances where she "gave in to her anger", following which she maintained a false account of the child's whereabouts for the following week, a circumstance described by the sentencing judge as "calculated and callous" (at [83]).
The sentencing judge was not satisfied that the offender was operating under any adverse mental condition that reduced her moral culpability (at [90]) and concluded that the offending had occurred as part of a course of mistreatment of the young child that had extended over a period of some weeks. In these circumstances the sentencing judge found the offending was not an aberration although it was obviously out of all proportion to anything which had occurred before (at [91]). The sentencing judge found that the offending was slightly below the middle of the range (at [93]). His Honour was not persuaded that the offender was remorseful (at [98]), nor was he prepared to find that the offender was unlikely to reoffend or that she had good prospects of rehabilitation (at [100]).
Allowing a discount of 15% to reflect the plea of guilty, the offender was sentenced to a total of 25 years and 6 months' imprisonment with a non-parole period of 19 years and 2 months' imprisonment. His Honour noted that without the plea of guilty the sentence would have been one of 30 years' imprisonment (at [103]). An appeal asserting that the sentence was manifestly excessive was dismissed by this Court: Pfitzner v R [2010] NSWCCA 314. Unlike the applicant's case, there was no evidence of any other violence towards the victim by the offender. The matter had also proceeded by way of a plea of guilty.
In R v Abrahams [2013] NSWSC 952 the offender pleaded guilty to the murder of her 6 year old daughter. The sentencing judge was not satisfied that earlier (non-lethal) injuries to the deceased had been inflicted by the offender. His Honour was also not satisfied that the offender formed an intention to kill the deceased (at [57]). The offender's criminal history was limited to a prior conviction for an offence involving biting the deceased some years prior to her death (at [76]). His Honour found (at [77]) that it was unlikely that the offender would reoffend and allowed a 10% discount to reflect the utilitarian value of her plea of guilty.
Subjectively, there was evidence that the offender was found to function in the borderline disabled range (at [91]), that she had been exposed to serious domestic violence (at [92]), and had a demonstrated intellectual disability which, limited her in terms of judgment, as well as in terms of her learning and coping skills (at [103]). The sentencing judge also found (at [107]) that the offender's formative years were characterised by (inter alia) domestic violence, following which the offender was made a ward of the State at 11 years of age (at [109]). The sentencing judge concluded that there was no need for specific deterrence, that the offender was never likely to reoffend, and was likely to be rehabilitated. He did not consider that the offender was a good vehicle for general deterrence in light of the evidence to which I have referred (at [128]).
In all those circumstances, and taking into account an additional offence arising from the offender's interference with the body of the deceased, the offender was sentenced to imprisonment for 22 years and 6 months with a non-parole period of 16 years. Leaving aside the plea of guilty, it is evident that there were a series of subjective circumstances of significance in that case, none of which have a role to play in the case of the applicant.
In R v JK [2018] NSWSC 250 the sentencing judge found (at [9]) that for a period of one week leading up to the death of his 12 year old step daughter, the offender had engaged in repeatedly assaulting her. The offender ultimately murdered her by the application of multiple instances of blunt force trauma to the head, torso and limbs (at [14]). The sentencing judge described the circumstances of the murder as the culmination of a "consistent pattern of cruel and barbaric abuse of a helpless child" (at [21]).
The offender did not have a substantial criminal record, although the sentencing judge concluded that this was deserving of little weight in light of the evidence of violence towards the victim in the period leading up to her death (at [29]). His Honour found that the offender was remorseful and had insight into his offending, and that this provided some hope for his rehabilitation (at [42]). There was no evidence that the offender was suffering from any major psychiatric disturbance although there was evidence of depression and anxiety arising from his adolescent life (at [43]). A sentence of 37 years and 6 months imprisonment was imposed, with a non-parole period of 28 years (at [54]). In some respects, this case bears similarities to the applicant's offending, particularly in terms of prior violence exhibited towards the victim.
The Court was also referred to R v LN; R v AW [2017] NSWSC 1387. In those cases, sentences substantially greater than that imposed on the applicant were imposed. They provide limited guidance in all of the circumstances.
Both the maximum penalty of life imprisonment, and the standard non-parole of 25 years imprisonment, represent important legislative guideposts in determining an appropriate sentence in this case. For the reasons that I have already expressed, the offending was extremely serious and was committed against a background of gratuitous violence perpetrated by the applicant on a young child. There is little in the applicant's subjective case which mitigates his offending.
I have had regard to the sentences imposed in the other cases to which I have referred. The guidance they provide is limited. For reasons I have pointed out the majority of them are generally distinguishable on one basis or another.
In all of the circumstances, and in the fresh exercise of the sentencing discretion, I have come to the view that a sentence of 36 years imprisonment, with a non-parole period of 27 years imprisonment is appropriate. In those circumstances, I propose the following orders in respect of the application for leave to appeal against sentence:
1. Leave to appeal against sentence granted.
2. Appeal dismissed.
Dr Norrie opined that the absence of splash marks on TM's legs and the presence of clear demarcation lines where she was burnt to the feet was contrary to a conclusion that TM leapt from the bath, thus causing water to splash against her and burn her. Dr Norrie's ultimate conclusion was that it appeared that TM was forced to sit down in the bath.
The applicant in his evidence described arranging a bath for TM instead of wiping her after she had soiled her nappy. He ran a bath and turned on the hot water to get it to flow. He also added cold water to adjust it to a warm temperature for her. He said that after TM was undressed, she got into the bath and shortly after that, he picked her up and turned her so that her bottom was facing the spout. He washed her with a face cloth. The applicant then took TM from the bath, put a nappy on her, dressed her and put her back to bed. He was not aware that she had suffered any burns. He became aware of the burns because MW messaged him an hour or so later.
The applicant told police in his second ERISP that he had put TM into the bath. He accepted in cross-examination the difference between that and his evidence in chief, i.e. she got into the bath and sat down (T756.31-.48). The applicant also confirmed in cross-examination that TM had put her right foot first into the bath after which she had put her left foot in and then sat in the water, although she was not sitting down for long (T756.46-757.28).
MW gave evidence that the applicant had told her that while he was cleaning out the bottom of the bath with hot water, TM had jumped into the bath, slipped and he had pulled her out (T243.26-.32).
Senior Constable Goodhand gave evidence that he had spoken to the applicant and MW at the hospital on the night of 20 April 2014. When he asked about the burn marks on TM's feet, the applicant had responded "Yeah that was when I was filling up the bath, she put her feet in or she got in without me looking".
The Crown relied upon an amended Tendency Notice, dated 19 March 2017, which sought to adduce tendency evidence in accordance with s 97 of the Evidence Act 1995 (NSW) (the Act). The Crown Tendency Notice stated:
"(a) The person whose "tendency" was the subject of the evidence sought to be adduced was the accused;
(b) The tendency sought to be proved was the accused's tendency to act in a particular way namely to "deliberately inflict physical harm on the child" who is referred to as TM;
(c) The substance of the tendency evidence the Crown intended to adduce was contained in a folder of documents comprising transcripts of interview with lay witnesses, expert evidence and photographs."
Before the pre-trial argument, both counsel for the Crown and for the applicant prepared written submissions addressing the admissibility of the evidence under ss 97, 98 and 101 of the Act.
The Crown's written submissions contended that:
1. the Crown's case against the accused was wholly circumstantial;
2. the evidence regarding the burns and the circumstances surrounding matters associated with their occurrence had a direct bearing upon the ultimate fact in issue in the case;
3. without the evidence the Crown sought to adduce, it "is deprived of establishing the tendency and the coincidence contended for; it is deprived of rebutting accident; it is deprived of a source of evidence that would support a submission that the accused acted with murderous intent and finally it would deprive the Crown of illustrating the true nature of the relationship between the accused and TM";
4. therefore the tendency and coincidence evidence in question had significant probative value if probative value was determined "on the assumption that the jury will accept the evidence" - IMM v The Queen (2016) 259 CLR 300; [2016] HCA 14 (IMM); and
5. the probative value of the evidence "substantially outweighs any prejudicial effect" as required by s 101(2) particularly if the "issue of actual or potential prejudice" is assessed having regard to the various warnings that a jury will receive.
Against that background, it is important to note that in determining the probative value of this evidence, the contradictory evidence of the applicant would not be taken into account. Even so, it was well open to the jury to reject his evidence because of the inconsistencies in his accounts. The Crown put to the applicant in cross-examination that what he did to TM was he "literally dunked her in the water" and did so intentionally. That conclusion was open on the evidence.
In the course of the argument as to the admission of the tendency evidence on 13 April 2017, and in particular the evidence relating to the burns, the trial judge said:
"Because if the evidence is admitted the jury would nonetheless have to be directed that they would have to be satisfied beyond reasonable doubt that the accused intentionally partially submerged the child in hot water before they could use that evidence as tendency evidence in any event." (T4.1.)
"Well that's one of those critical issues upon which the jury would need to be directed that they had to be satisfied beyond reasonable doubt that those injuries could not have been accidentally inflicted." (T5.49)
"They can't use the evidence of the injury towards proof of the guilt of the accused if they are not satisfied beyond reasonable doubt that there was deliberate infliction of injury." (T11.5)
In due course, the trial proceeded on that basis and her Honour summed up to the jury to that effect.
The Crown relied on the notion that "the underlying proposition is that the accused on the Crown case had on two occasions separated by less than two weeks, while he was the only person in the presence of the deceased while in the home deliberately inflicted injury upon the same child".
The thrust of the applicant's written and oral submissions objecting to the admission of the evidence was "that the prevailing evidence established that the burns were accidentally inflicted and that the accused enjoyed a positive and caring relationship with the child such that the evidence lacks significant probative value."
On 20 April 2017, in his opening to the jury the Crown specifically told the jury:
"Now I said to you that it's the Crown's position that those burns were deliberately inflicted. You know obviously that the accused is not charged in relation to that conduct or the alleged conduct. So the evidence has been put before you for a specific purpose and that specific purpose is to establish what the Crown says is a tendency that the accused had to inflict physical harm upon this child." (T70.24)
Although the Tendency Notice also referred to coincidence evidence, it is apparent from the way in which the trial was conducted that the evidence was only used for a tendency purpose.
As foreshadowed, the trial judge left the evidence of the incident in the bath to the jury on the basis that they would have to find that the evidence of the burns to TM were intentionally inflicted upon the child by the applicant beyond reasonable doubt. This was of considerable advantage to the applicant, particularly when the manner in which TM suffered the burns from the incident in the bath, was very much in dispute.
In the appeal, by reference to ss 97 and 101 of the Act, the applicant posed the following questions:
1. Whether the trial judge was in error or correct to find that the tendency evidence had "significant probative value" as required by s 97(1)(b); and
2. If so whether the probative value of the tendency evidence "substantially outweighs" any prejudicial effect it may have on the accused.
The applicant submitted that the leading authority on assessing whether tendency evidence sought to be adduced, has significant probative value is the majority judgment in Hughes v The Queen (2017) 263 CLR 388; [2017] HCA 20 (Hughes). The applicant submitted that the relevant factors for assessing the probative value of tendency evidence include:
1. whether the tendency evidence makes more likely to a significant extent the facts that make up the elements of the offence charged: Hughes at [40];
2. where the identity of the offender is in issue "the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence": Hughes at [39];
3. the two step process approved in Hughes which involves a comparison between the tendency and the act in issue. A tendency expressed at a level of particularity will be more likely to be significant than a tendency expressed at a high level of generality. There is likely to be a high degree of probative value where:
1. the evidence by itself, or together with other evidence, strongly supports proof of a tendency; and
2. the tendency strongly supports the proof of a fact that makes up the offence charged.
1. the specificity of the alleged tendency and how precisely that tendency correlates to the act or state of mind that the person having the tendency is alleged to have had on the occasion in issue;
2. the strength of the inference that can be drawn from that evidence as to the tendency of the person to act in a particular way and the extent to which that tendency increases the likelihood that the fact in issue occurred.
The applicant submitted that s 101 of the Act further restricted the admissibility of tendency evidence. On that issue, the applicant relied upon The Queen v Dennis Bauer (a pseudonym) (2018) 92 ALJR 846 at [73]; [2018] HCA 40 (Bauer) where the Court said:
"73 ... Despite textual differences between the expressions "prejudicial effect" in s 101, "unfairly prejudicial" in s 135 and "unfair prejudice" in s 137, each conveys essentially the same idea of harm to the interests of the accused by reason of a risk that the jury will use the evidence improperly in some unfair way. Here there was not a real risk of the jury using the tendency evidence in such an unfair way."
The applicant further noted that s 101(2) required a trial judge to consider "any risk of prejudicial effect caused by the admission of tendency evidence" and whether the probative value of such evidence outweighed any risk of prejudicial effect. This required a "balancing exercise" to be carried out.
In relation to what constitutes an "unfair" prejudicial effect, the applicant submitted:
1. evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted;
2. there must be prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way;
3. that there was a risk that evidence will be given disproportionate weight by the fact finder (in the course of engaging in tendency reasoning);
4. that in addition to the risks arising from tendency reasoning, there is the risk that the assessment of whether the prosecution has discharged its onus may be clouded by the jury's emotional response to the tendency evidence; and
5. the risk of prejudice to the accused may be cured by an adequate direction by the judge to a jury, however, where "the potential for very great prejudice remains regardless of what could be said by the trial judge to ameliorate it" the probative value of the evidence might be substantially outweighed by its prejudicial effect.
By way of summary, the applicant relied upon Bauer at [86] where the Court said:
"... it is appropriate to say something further of the directions ordinarily to be given to a jury in a single complainant sexual offences case where the Crown is permitted to adduce evidence of uncharged acts as evidence of the accused having a sexual interest in the complainant and a tendency to act upon it. Where evidence is admitted on that basis, the trial judge should direct the jury that the Crown argues that the evidence establishes that the accused had a sexual interest in the complainant and a tendency to act upon it which the Crown contends makes it more likely that the accused committed the charged offence or offences. If the Crown also relies on the evidence as putting the charged offence or offences in context in some other identified fashion or respects, the trial judge should further direct the jury that the Crown contends that the evidence serves also to put the charged offence or offences in context and identify the manner or respects in which the Crown contends that it does so. The trial judge should stress that the evidence of uncharged acts has been admitted for those purposes and, if the jury are persuaded by it, that it is open to the jury to use the evidence in those ways, although no other. The trial judge should further stress that it is not enough, however, to convict the accused that the jury may be satisfied of the commission of the uncharged acts or that they establish that the accused had a sexual interest in the complainant on which the accused had acted in the past; it remains that the jury cannot find the accused guilty of any charged offence unless upon their consideration of all of the evidence relevant to the charge they are satisfied of the accused's guilt of that offence beyond reasonable doubt. Contrary to the practice which has operated for some time in New South Wales, trial judges in that State should not ordinarily direct a jury that, before they may act on evidence of uncharged acts, they must be satisfied of the proof of the uncharged acts beyond reasonable doubt. Such a direction should not be necessary or desirable unless it is apprehended that, in the particular circumstances of the case, there is a significant possibility of the jury treating the uncharged acts as an indispensable link in their chain of reasoning to guilt. And, as explained earlier in these reasons, a trial judge is precluded from giving such a direction in Victoria."
By reference to those principles, the applicant sought to identify the errors in the approach followed by the trial judge. The applicant identified the "principal issue at trial" as "whether the injuries consistent with blunt force trauma to the abdomen were inflicted by the accused with the requisite intent, namely to cause at least serious bodily harm to the deceased. Her Honour identified the tendency evidence in R v TL [2017] NSWSC 426 at [24]:
"In broad terms the proposed evidence corresponds to paragraphs 5 to 10 inclusive and 19 of these reasons. The tendency sought to be proved is the accused's tendency to deliberately inflict physical harm on the child TM. The two events, namely the infliction of burns to the feet and buttocks and the infliction of severe abdominal injuries eleven days later are also relied upon to prove the improbability of the events occurring coincidentally."
The applicant submitted that in that context the tendency evidence did not have "significant probative value" for the following reasons:
1. where identity is in issue "the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence" (Hughes at [39]);
2. the trial judge accepted at [30] in her judgment of 19 April 2017, that one of the "central matters" in the case was "the identity of the person who inflicted the trauma".
Put another way, the applicant submitted that the incident in the bath was not sufficiently similar to the blunt force trauma that caused TM's death to be allowed as tendency evidence that would prove that the applicant had caused TM's death. The applicant submitted that the injuries suffered in the bath were clearly different in nature and degree.
The applicant submitted that the trial judge needed to be satisfied of the "close similarity" between the conduct evidencing the alleged tendency and the offence. For similar reasons to those outlined in the preceding paragraphs, the evidence of the relevant conduct did not exhibit "close similarity" with the offence because even taking all the evidence at its highest, the type of harm occasioned in the relevant incident (burns) had no similarity to blunt force trauma. They were of a qualitatively different order. In other words, the evidence of the scalds/burns and how they were occasioned (even if accepted as having occurred in a way adverse to the applicant) bore no "close similarity" to the offence which required at least an intention to cause grievous bodily harm by blunt force trauma.
The applicant further submitted that at its highest the evidence of the burns could only prove a tendency to deliberately inflict some physical harm on the child short of grievous bodily harm or really serious bodily injury. The applicant submitted that he was charged with murder based on the infliction of grievous bodily harm. Grievous bodily harm in law was distinguished from actual bodily harm and required "really serious bodily injury". He submitted that accordingly the tendency sought to be proved by the Crown could not directly establish that he had the requisite "intent to kill or inflict grievous bodily harm" which constituted the required element in murder. He submitted that the asserted tendency could not make "more likely to a significant extent the facts that make up the elements of the offence charged" (Hughes at [40]).
The applicant submitted that all the burns to the child were superficial first degree burns except for one. The applicant submitted that this detail further demonstrated that the evidence of burns did not have "significant probative value" and could not prove that the intention to kill or inflict grievous bodily harm was "more likely to a significant extent".
The applicant submitted that the "tendency evidence" could not rationally affect the assessment of the probability of the existence of a fact in issue to a significant extent. The applicant submitted that where the conduct constituting the tendency alleged (such as in this case) was materially more general than the conduct constituting the offence, evidence that could only support the more general tendency (intention to inflict physical harm) could not support the inferences and reasoning necessary to establish the conduct constituting the offence, i.e. intention to inflict grievous bodily harm "to a significant extent".
The applicant submitted that a tendency to "deliberately inflict physical harm" on one (or even more) occasions was still not evidence that "strongly supports the proof of a fact that makes up the offence charged" - which in this case was murder with intent to kill or inflict grievous bodily harm. It would follow that, even if the evidence here satisfied the first step of the Hughes approach, namely that it "strongly supports proof of a tendency", it did not satisfy the second step of the process because the tendency proved was at best a tendency to deliberately inflict harm on the child short of grievous bodily harm. The applicant submitted that this was another reason why the evidence of the scalds/burns to TM did not have significant probative value.
The applicant submitted that the evidence of the scalds/burns was, if accepted as deliberate, highly adverse to the applicant before the jury. It raised very emotional issues and was likely to be misused. The applicant submitted that it required very close directions which appropriately drew the jury's attention to the difference between putting a child in a bath with hot water in it and deliberately submerging and/or holding that child in the bath.
The applicant submitted that prejudice and the likelihood of misuse of what was occasioned by the cumulative effect of further evidence ruled admissible over objection, involving the observation of a bruise on TM and remarks that she was said to have made. The applicant submitted that even if the tendency evidence had significant probative value, s 101(2) applied to limit the admissibility of the tendency evidence of punches, bruises and burns. He submitted that there was a real risk that the jury might accept the Crown's suggestion of a "tendency to deliberately inflict physical harm" on the child (including minor harm) and be distracted from rationally considering the matters relating to the offence charged.
In summary, the applicant submitted that the trial judge erred in admitting the evidence which was the subject of the Crown's Tendency Notice. He submitted that this error occasioned a substantial miscarriage of justice.
The applicant submitted that the key errors in the trial judge's directions were attributable to the erroneous admission of the tendency evidence. In particular, where her Honour directed the jury, following Dr Norrie's evidence, "that evidence becomes relevant because it allows you to use the evidence to arrive at the conclusion beyond reasonable doubt that it was the accused who inflicted harm on the child on 20 April".
The applicant submitted that her Honour's direction suggested to the jury that it could use the tendency evidence of the burns to support its assessment and finding about the identity of the person who committed the offence charged. The applicant submitted that, as noted earlier in his submissions, 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". The applicant submitted that there was no such close similarity and therefore the trial judge erred in first incorrectly admitting the tendency evidence and secondly incorrectly directing the jury that it could be used to prove the identify of the offender.
This Court in Ellis v R (2003) 58 NSWLR 700; [2003] NSWCCA 319 (Ellis) held that the Act disclosed a new approach to evidence of coincidence and tendency and that the common law "no rational explanation" test propounded in Pfennig should not be followed.
In submissions, the applicant relied upon Bryant v R (2011) 205 A Crim R 531; [2011] NSWCCA 26 at [79] (Bryant) where Howie AJ said:
" ... Tendency evidence itself will rarely have sufficient probative value to identify a person as a particular offender."
What Howie AJ said has to be understood in the context of the issues in that matter. The tendency evidence alone in Bryant would not have amounted to sufficient proof of that accused's guilt. However, taken together with the accused's possession of a number of incriminating items, and in circumstances where it was obvious he was about to commit a further similar offence, the tendency evidence was able to establish his identity as the offender. In the course of his judgment, Howie AJ referred to the earlier decision of O'Keefe v R; R v O'Keefe [2009] NSWCCA 121 at [59] (O'Keefe) where his Honour (with the concurrence of McColl JA and Grove J) said that if tendency evidence stood alone in identifying the accused as the offender, it would have to be "sufficiently peculiar or singular to amount to what has been described as a "hallmark" or "signature" of the [accused] such that it would offend common sense to exclude it". Those remarks were followed by this Court in Donohoe v R [2012] NSWCCA 176 at [50].
The facts in O'Keefe are instructive. In that case, the Crown relied upon the applicant's tendency to sexually assault females in secluded locations with a particular interest in their breasts. This was a generalised tendency without any further evidence to link that accused to a particular series of sexual offences upon one complainant. Without anything more, the applicant's conviction on those counts was unreasonable. What was required was some further evidence which would link the accused to the crime or crime scene.
It is against that background that the text in the Act is to be given proper regard. The test pursuant to s 97(1)(b) is whether the Court thinks that the evidence will, either by itself or having regard to other evidence adduced, have significant probative value. In this case, the evidence of the incident in the bath was to be assessed with the other evidence adduced which was that the applicant was one of only three persons who had the opportunity to commit the offence. It was that combination of facts which gave the evidence its significant probative value and not whether there was a close similarity between the incident in the bath and the manner in which TM was killed.
The applicant relies upon the majority judgment in Hughes where Kiefel CJ, Bell, Keane and Edelman JJ said at [39]:
"Commonly, evidence of a person's conduct adduced to prove a tendency to act in a particular way will bear similarity to the conduct in issue. Section 97(1) does not, however, condition the admission of tendency evidence on the court's assessment of operative features of similarity with the conduct in issue. The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove. In criminal proceedings where it is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence. Different considerations may inform the probative value of tendency evidence where the fact in issue is the occurrence of the offence."
The issue in Hughes was not identity. Indeed in the most recent High Court decisions on tendency (IMM; Hughes; Bauer and McPhillamy v The Queen (2018) 92 ALJR 1045; [2018] HCA 52) the issue was whether the alleged offence had occurred, not the identity of the person who committed the offence. Importantly, the remarks in Hughes at [39] require consideration of the factual circumstance of an accused person being alleged to have committed an offence merely because of a tendency that that person has displayed. O'Keefe illustrates this.
If the accused in O'Keefe had been proved to have been present near to where the crime was committed at the approximate time of its commission, the tendency evidence would have had considerable force. Instead of identifying the accused from the general population as the person who committed the offences, the evidence would have gone to identify the offender from those persons, including the accused, who were present at the time of the offence. That type of analysis is consistent with the common law cases of Straffen and Pfennig. It is also consistent with the approach the Act takes to tendency evidence. The admissibility of tendency evidence depends on the significant probative value of the tendency, taken together with other evidence in the case.
It follows therefore that the requirement for close similarity should arise when the tendency evidence is the only or predominant evidence that goes to identity. Further, the majority in Hughes did not lay down a prescriptive test for tendency evidence for all cases where it was sought to be used to prove identity. By saying "it almost certainly will" their Honours allowed for exceptions. This case falls into that class of exceptions. The undisputed fact that only three persons had the opportunity to kill TM was decisive evidence.
In any event, while the actual acts the Crown relied upon for the tendency for the offence of murder were different, they involved the same victim in the same house in the same family and they were close in time. This would not have been the case if, for example, on an earlier occasion and while he was in a different relationship the applicant had caused burns to another two year old child while bathing that child. That evidence would be unlikely to be admissible as tendency evidence.
There is also a somewhat more nuanced way of looking at the comparison between the incident in the bath and the blunt force trauma which killed TM. On the Crown case, the incident in the bath involved a deliberate act of cruelty which was not spontaneous. I have inferred the lack of spontaneity from the fact that it would have taken some time for a sufficient quantity of hot water to accumulate in the bath to cause the burns which were observed. Similarly, the force which was needed to cause substantial injuries to TM, which were likened to those caused in a motor vehicle accident, could only have been deliberate and not accidental. Looked at in that way, the two incidents share a number of similar features.
R v Warren Ross (No 2) [2013] NSWSC 2042 (R v Ross) is similar to this case. There the accused was charged with murdering his partner's two year old daughter. The identity of whoever assaulted and killed the child was the issue in the trial. The accused raised the possibility that the deceased child's mother or other siblings, who were present at the house at the time of the child's death, were responsible for her death.
Rothman J admitted evidence of tendency which was of earlier incidents of violence committed by the accused upon the deceased child in order to establish, inter alia, the identity of the offender. The tendency evidence, however, did not stand alone. The deceased's child's mother gave evidence directly implicating the accused. Even so, it could not be said that the tendency evidence, which was a series of assaults upon the deceased before her death, had a high or close degree of similarity to the assaults which resulted in the child's death. Although R v Ross predated Hughes, the same result would occur irrespective of the requirements for "close similarity" that Hughes imposed at [39].
A contrary example is provided by the decision in Ilievski v R; Nolan v R [2018] NSWCCA 164 (Ilievski). The applicants were convicted of an armed robbery together with another man, Mr Kwu. The identity of the offenders was in issue. The Crown relied upon tendency evidence that all three had previously committed an armed robbery nine years earlier and that Mr Kwu had conspired to commit a robbery three months afterwards with other offenders. A Mercedes was used in the commission of the robbery. Bathurst CJ (with whom Fullerton and Campbell JJ agreed) set out the Crown case absent the tendency evidence at [16]:
"First, the Crown contended that the evidence established that Mr Ilievski and Mr Nolan had the opportunity to take the stolen number plates displayed on the Mercedes during the robbery. Second, it contended that the evidence established that Mr Ilievski, Mr Nolan and Mr Kwu had the opportunity to commit the robbery at the relevant time. Third, it contended that the evidence established that Mr Ilievski had possession and control of the Mercedes used in the robbery at various points in time after the robbery."
Accordingly, it could not be said that the evidence linking each of the accused to the robbery, or even placing them at the scene of the crime was conclusive. Bathurst CJ concluded that the tendency evidence lacked significant probative value. His Honour doubted whether the evidence revealed the tendency at all. Assuming a tendency was revealed upon the evidence, Bathurst CJ explained why the evidence lacked significant probative value:
"What was principally relied upon by the Crown was the fact that the applicants and Mr Kwu committed the earlier robbery together, however, I do not think that this results in the evidence having significant probative value as the majority pointed out in Hughes at [39], the probative value of tendency evidence which is used to prove the identity of an offender for a known offence will "almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence.
The fact that the three accused on one prior occasion committed an armed robbery together in somewhat similar circumstances to the robbery for which the applicants were charged does not give rise to a tendency having significant probative value where the similar features could be said to be common to many bank robberies."
While the decision in Ilievski refers to and relies upon Hughes at [39], the tendency evidence relied upon was of such limited value that it provided little assistance in assessing "close similarity" in other cases. Regardless of the requirement for "close similarity" the same result would be achieved relying on the usual principles associated with the admission of tendency evidence.
What is of fundamental importance on the facts of this case is that there were only three possible suspects, the applicant, MW and DM. The tendency evidence identified the applicant as the offender as against the mother of the child and a 14 year old boy. The tendency evidence did not have to reveal close similarity, as it might in other circumstances, albeit as indicated above, there were some similarities. Further and in any event, there was close similarity in that the applicant had previously harmed the same person.
A recent decision of this Court in Vagg v R [2020] NSWCCA 134 (Vagg) is of assistance on this issue. The accused was a window cleaner who was alleged to have on two occasions digitally penetrated the complainant, who was a child at the time. In the trial, another witness, MF, gave evidence which was admitted under the tendency rule. It was clear from the description of what had occurred that the conduct MF described by the accused was in no way the same as the conduct in the complainant's case. The leading judgment was given by Simpson AJA (with whom Rothman and N Adams JJ agreed).
The reasons for admitting the evidence of MF were set out as follows:
"41 In her reasons for admitting the evidence the trial judge identified the issues in the trial (as then perceived) as:
"whether the complainant was sexually assaulted and[,] if it is established that she was[,] that the applicant was the perpetrator."
42 She considered that the evidence of MF (if accepted by the jury) was:
"…capable of establishing [that the applicant had] demonstrated a pattern of behaviour on his part to ask young females to assist him [sic] to undertake tasks, isolate the child and then sexually inappropriately deal with them."
43 She considered evidence to that effect to be "highly probative" in assessing whether the applicant had in fact assaulted the complainant as she alleged."
The following statements of principle by Simpson AJA have a bearing on these proceedings:
"46 The assessment of the probative value of the evidence must take place in the context of the disputed factual issues litigated in the trial. Commonly, in cases of sexual offences, the dispute lies either in the identity of the offender or in the fact of the occurrence of the offending. Different considerations may apply to the assessment of probative value of the proposed evidence, depending upon which of those two issues arises. In this case, the lines were not clearly drawn. The complainant's evidence was that the offences were committed by a window cleaner. There was no dispute that the applicant had been engaged as a window cleaner at the complainant's home, and had been so engaged at about the relevant time. ... Unlike the offender in Hughes v The Queen (2017) 263 CLR 338; [2017] HCA 20, the applicant was not previously known to the complainant, and the lapse of five years between the date on which the offences were alleged to have been committed, and the date of report, left some room for doubt concerning whether he was the person who perpetrated the acts alleged by the complainant, assuming that they had in fact been committed, and even assuming that they had been committed by a window cleaner. ...
47 In the course of the appeal a significant debate arose concerning the extent to which the identity of the offender was a, or the, principal issue in the trial. The issue was important because in Hughes the majority in the High Court (Kiefel CJ and Bell, Keane and Edelman JJ) said that where the issue is the identity of the perpetrator of a known offence, the probative value of the evidence:
"39 … will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence."
Their Honours added that different issues might arise where the issue is the fact of the occurrence or the offences.
48 On behalf of the applicant it was contended that identity was the principal issue and that the applicant did not in any concerted way contest the occurrence of the offences. The Crown maintained that the applicant had also disputed the fact of the occurrence of the offences and did so by the manner in which the complainant was cross-examined.
49 The truth lies somewhere in between the two positions. The proven proximity of the applicant to the complainant's home at about the relevant time and his occupation as a window cleaner meant that, while the possibility remained open that the offences (assuming they had been committed) had been committed by somebody else, the fact of the occurrence of the offences was also in play. The applicant made no concession that the acts had been committed (neither, given his denials, could he have been expected to) and the cross-examination of the complainant, though not searching on this topic, nevertheless opened the possibility that she was, at least, mistaken.
50 The applicant's position essentially was that if he were the window cleaner to whom the complainant attributed the offences, the offences had not been committed. Thus, perhaps unusually, both identity and the fact of the commission of the offences were in issue.
51 In Hughes (at [41]) it was held that the assessment of whether the tendency evidence has significant probative value involves consideration of two "interrelated but separate" matters:
(i) the extent to which the evidence supports the tendency asserted by the Crown;
(ii) the extent to which the tendency makes more likely the facts making up the offences.
52 Where the question is not identity, but whether the offence was committed, it is necessary to consider both matters. Their Honours concluded:
"41 … In summary, there is likely to be a high degree of probative value where (i) the evidence, by itself or together with other evidence, strongly supports proof of a tendency, and (ii) the tendency strongly supports the proof of a fact that makes up the offence charged."
53 That brings me back to the evidence of MF. Bearing in mind the terms of the Tendency Evidence Notice, the first question to consider is the extent (if any) to which her evidence supported the existence of:
(i) a tendency in the applicant to have a sexual interest in young girls under the age of 10; and
(ii) a tendency to act on that interest (in the way specified in the Tendency Evidence Notice).
I note that, in considering these questions, it is necessary to assume that MF's evidence was accepted by the jury.
(i) Did the evidence of MF support the existence of a tendency in the applicant to have a sexual interest in young girls under the age of 10?
54 The first incident of which MF gave evidence, while distinctly unsavoury, was not clearly overtly sexual. Taken alone, the most it could do was raise a question about the applicant's motivation in engaging MF as he did.
55 But s 97(1)(b) makes it clear that the tendency evidence is not to be looked at in isolation and, plainly, if the Crown relies on evidence of more than one incident as tendency evidence, those incidents are not to be considered in isolation from one another. The second incident recounted by MF had a more overtly sexual connotation, culminating in the applicant's exposing his penis to her. The evidence of that incident casts some light on the applicant's motivation in the first incident.
...
59 In my opinion the exposure of the applicant's penis is an unmistakable indication that his motivation in the whole of that incident was sexual. It is a short step to conclude that his motivation in relation to the first incident also was sexual, although it was not so clearly manifested.
60 MF's evidence, in my opinion, supports the existence of a tendency, as asserted by the Crown, in the applicant to have a particular state of mind that is, a sexual interest in young girls.
(ii) Did the evidence of MF suggest the existence of a tendency in the applicant to act on his sexual interest in young girls?
61 It is then necessary to consider whether the evidence supports the second asserted tendency, that is a tendency in the applicant to act on his sexual interest. In McPhillamy the plurality in the High Court said:
"27 … Generally, it is the tendency to act on the sexual interest that gives tendency evidence in sexual cases its probative value."
62 It may be accepted that the conduct alleged by MF was in many respects quite different from the conduct alleged by the complainant.
63 In Hughes it was held that, in order for the evidence to support a tendency to act on a sexual interest it is not necessary that the conduct alleged display similarities, underlying unity, pattern of conduct or "modus operandi". But Hughes was a case where the identity of the perpetrator of known offences was not in issue. Mr Hughes was known to the complainants. The issue was whether the acts with which he was charged had been committed.
64 It was, no doubt, because, in this case the identity of the offender was in issue that the Crown identified the "common features" of the alleged offending against the complainant, and the applicant's alleged conduct towards MF. The proposition stated in [39] of Hughes demanded attention to similarities in the conduct alleged in the tendency evidence, and that alleged by the complainant.
65 Evidence supporting a tendency to have a particular state of mind, such as a sexual interest in young girls, and evidence supporting a tendency to act on that interest are necessarily intertwined, and may be co-extensive. That is, the evidence establishing a tendency to have a particular state of mind may be, and often is, the same evidence that supports a tendency to act on that that state of mind. Very often the evidence of the conduct that establishes the tendency to act in a particular way is the evidence that provides the foundation for finding a tendency to have a particular state of mind.
66 In this case, the applicant's sexual interest in young girls was said by the Crown to have been manifested in his conduct, on two occasions, in taking advantage of a social situation to seek out MF and engage her in escorting him to a secluded bathroom, the location of which, at least on the second occasion, he knew. And it was also manifested, although opportunistically, in his conduct towards the complainant, in taking advantage of a situation when he was alone with her and in which, on the second occasion at least, he was not subject to any observation. There were relevant similarities.
...
73 This was an unusual case of tendency evidence. The tendency evidence related to events that took place three or four years after the events the subject of the charges on the indictment. They involved a different child, although one of the same sex and comparable age to the complainant. Most importantly, the allegations were of conduct in some respects substantially different in nature from the conduct the subject of the allegations made by the complainant. That last fact, having regard to what was said in [39] of Hughes, has given me considerable pause for thought, notwithstanding that similarity of conduct is not a precondition of admissibility.
74 I have nevertheless concluded that there was sufficient in the evidence of MF to warrant the conclusion that the applicant did have a tendency to have a sexual interest in young girls, and, further, that he had a tendency to act on that interest in ways which were both different and had common features.
(iii) Did the evidence have significant probative value?
75 That does not conclude the matters in issue on this appeal. Two questions remain. That the applicant had been shown to have had the tendencies in question does not carry as a necessary consequence that the evidence has significant probative value. That question is to be decided by asking whether the tendency evidence, together with other evidence in the trial, makes more likely, to a significant extent, the facts that make up the elements of the offences charged: Hughes at [40], R v Ford [2009] NSWCCA 306; (2009) 201 A Crim R 451. In Hughes the majority said:
"40 In the trial of child sexual offences, it is common for the complainant's account to be challenged on the basis that it has been fabricated or that anodyne conduct has been misinterpreted. Logic and human experience suggest proof that the accused is a person who is sexually interested in children and who has a tendency to act on that interest is likely to be influential to the determination of whether the reasonable possibility that the complainant has misconstrued innocent conduct or fabricated his or her account has been excluded."
76 I have come to the further conclusion that the evidence did have significant probative value. In circumstances that allow for some doubt whether the person to whom the complainant attributed the offending behaviour was in fact the applicant, evidence that showed that he was a person who had a sexual interest in young girls (however that interest was manifested) was likely to be influential in the determination of whether he was the person who committed the offences against the complainant (assuming, of course, that the jury was satisfied that those offences had been committed)."
The reasoning in Vagg is important, being a most recent decision by this Court which squarely raised the same issues as have been raised in this appeal. While there was some similarity in the conduct of the accused as described by the complainant and MF, it was nowhere near the degree of similarity which the applicant has argued for in these proceedings as a necessary condition of the tendency evidence being used to identify him as the person who administered the blunt force trauma to TM.
The applicant's second contention under this ground of appeal is that the evidence of the burns could prove only a tendency to inflict some physical harm upon TM. This submission is, with respect, misconceived and wrong.
The tendency evidence in this case went to prove the identity of the offender as the person who had caused blunt force trauma to TM and thus her death. It was not a condition of its admissibility that it also go to prove that the applicant intended to cause grievous bodily harm to TM. The proof of that element of the offence came from the nature of the assault itself.
The applicant, however, relies upon Hughes at [40] where the majority held that for tendency evidence to have significant probative value, the evidence together with other evidence should "make more likely to a significant extent the facts that make up the elements of the offence charged". This is a quote from R v Ford (2009) 201 A Crim R 451; [2009] NSWCCA 306 (at [41]) which also recognised that a tendency to engage in a particular type of behaviour can be relevant to whether an accused had committed a particular crime charged. This was so, even though the tendency did not in itself involve the performance of a contravention of the same provision of the criminal law as that charged or closely similar behaviour.
It follows, therefore, that the passage from Hughes at [40] upon which the applicant relies does not mean that the tendency evidence should go to prove all the elements of an offence only that the assessment of its significant probative value is measured against what needs to be proved which, in a criminal trial, are the elements of the offence.
Even if the incident in the bath was considered as a piece of tendency evidence on its own, as this ground of appeal does, a single previous incident can form the basis of tendency evidence (Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 at [86]). In this case, the fact that the bath incident involved the same victim on an occasion very close in time to the receiving of the blunt force trauma, meant that even one previous episode of abuse by the applicant would have significant probative value in determining from the three possible suspects, who it was who murdered TM.
The applicant also contends that the probative value of this evidence did not significantly outweigh its prejudicial effect. Probative value is to be assessed by reference to what the evidence is capable of proving, taking it at its highest (IMM at [48]). Its prejudicial effect is judged by the risk it will be misused by the jury in some unfair way (Hughes at [17]; Bauer at [73]).
Harm to a child will always engender strong feelings. That alone is not a bar in the many trials of sexual abuse where tendency evidence is admitted. The directions of a trial judge, as were given by her Honour in this case, can remove that risk of prejudice. Evidence of a tendency is not prejudicial simply because it tends to prove the commission of the offence which is charged. That constitutes, subject to proper directions, an appropriate use of the evidence, not its misuse. Nor is it prejudicial for a jury to reason that if the accused has demonstrated the alleged tendency, he or she is more likely to have committed the offence alleged. On the contrary, this is the very reasoning that underpins tendency evidence and the very basis upon which it is admitted.
The trial judge properly directed the jury as to how they could use the tendency evidence. Such directions can go a long way to ameliorating any potential misuse of damaging evidence or other prejudicial effect. There is no challenge to those directions, save for the challenge that the evidence of the burns to TM should not have been put as tendency evidence. That, of course, is the very issue raised by this ground.
For the above reasons, there was no error in the admission of the evidence of burns suffered by TM as tendency evidence. This ground of appeal should be dismissed.
Ms W's evidence of what TM said some weeks before Easter 2014 was:
"I had a movie on and we were playing ring a ring Rosie.
She said: "That's it grandma you have been naughty. I'm going to ring TL and he will punch you in the face like he does me."
Q. Did you ask her anything about that?
A. No we went back to playing.
Q. Did she do anything when she said that "I'll punch you like TL punches me" or words to that effect?
A. She pretended to punch herself." (T523-524)
Ms Sipple's evidence was:
1. in late March 2014 TM stayed at Ms Sipple's house;
2. Ms Sipple noticed a bruise on TM's forearm. Ms Sipple recalled that she asked TM about the bruise to which TM answered "TL did it, TL hurt me."
3. Ms Sipple asked TM "When did he hurt you?" In response, TM did not answer the question but went off and played. When Ms Sipple asked her again about her arm, TM would not talk to her about it. (T516)
These three pieces of evidence, together with the evidence of the incident in the bath, comprised the tendency evidence relied upon by the Crown in the trial.
The argument on the voir dire was directed to the evidence of Ms W and Ms Sipple and was to the effect that the evidence should be excluded pursuant to s 137 of the Act.
Her Honour ruled against the applicant on that issue and allowed the Crown to adduce the evidence as tendency evidence.
The applicant submitted that her Honour's ruling in admitting the evidence, which was covered by the Hearsay Notice, did not address or seek to address the application of the specific requirements of s 65(2) of the Act to determine whether the evidence could satisfy a relevant exception to the hearsay rule. The applicant submitted that the trial judge ought to have ruled that the evidence, the subject of the Crown's Hearsay Notice, and the evidence of the text message, were inadmissible hearsay evidence.
The applicant submitted that the relevant issues under s 65(2)(b) and s 65(2)(c) were concerned with "when or shortly after the asserted fact occurred" and "whether the representation was made in circumstances that made it "unlikely that the representation is a fabrication"".
In relation to the provisions of s 65(2)(b) the applicant relied upon Williams v R (2000) 119 A Crim R 490; [2000] FCA 1868 where the Full Court of the Federal Court said at [48]:
"The rationale for the exception to the hearsay rule contained in s 65(2)(b) is not based only upon the necessity to ensure that the events in question may be easily recalled. Rather that provision is, as a whole, intended to allow evidence that is unlikely to be a fabrication. One condition of this is that the statements be made spontaneously during ("when") or under the proximate pressure of ("shortly after") the occurrence of the asserted fact."
As to the second element of s 65(2)(b) the applicant submitted that the authorities emphasised that the parties seeking to have the evidence admitted would need to point to circumstances which made it unlikely that the representation was a fabrication. The applicant submitted that it was not enough to come within the exception to point to the absence of circumstances that dictate a real risk of fabrication, although the absence of such circumstances would make it easier to satisfy the Court that other circumstances made it unlikely that the representation was a fabrication.
For the purposes of s 65(2)(c) of the Act, the applicant submitted that whether the evidence of a previous representation was admissible would depend upon whether it was "made in circumstances that made it":
1. unlikely that the representation is a fabrication;
2. highly probable that the representation is reliable.
The applicant also relied upon R v Ambrosoli (2002) 55 NSWLR 603; [2002] NSWCCA 386 where Mason P said at [34] that in applying s 65(2)(c) it was necessary to focus upon the circumstances of the making of the previous representation to determine whether it was unlikely that the representation was a fabrication or highly probable that the representation was reliable; and excluding evidence tending only to prove the asserted fact.
The applicant submitted that at [36] his Honour confirmed "the legitimacy of resort to inconsistent or consistent statements of the maker of the representation or other circumstances (whenever occurring) directly touching the credibility of the maker of the representation at the time of making the representation".
The applicant submitted that when those principles were applied to the matters in the Hearsay Notice, it was readily apparent that those pieces of evidence did not come within the ss 65(2)(b) or 65(2)(c) exceptions to the hearsay rule.
The applicant submitted that although it was clear that there had been no consideration of the statutory exceptions under the Act by her Honour, a proper application of those requirements would have determined that the evidence was inadmissible hearsay.
In relation to the evidence of Ms W, the applicant submitted that the representation was not made at the time of the asserted fact. Nor was there any evidence as to when it was made. The applicant submitted that the circumstances under which the representation was made strongly suggested a real risk that the representation was a fabrication or that it was unreliable. The applicant submitted that there was a likelihood that the statement was made in the context of playing a game and could not support the asserted fact that the applicant had deliberately hurt TM. The applicant submitted that there was no evidence that TM appreciated what a "punch" was. The applicant submitted that it was not known how or what TM did to pretend to punch herself.
The applicant also relied upon the evidence of Ms Key, who used to mind or care for TM in a day care centre. There was evidence to establish that TM had told a lie about Ms Key smacking her on a previous occasion. Ms Key denied ever having smacked TM. It turned out that Ms Key had spanked her own child but not TM.
In relation to Ms Sipple's evidence, the same issues arose concerning the contemporaneity of the conversation. There was no evidence of when the "hurt" by TL occurred. Ms Sipple gave no evidence as to the position, size or colour of the bruise. The applicant submitted that this was important given the evidence that TM bruised easily. There was no evidence of how the bruise had been occasioned. TM did not assert to Ms Sipple that she had been punched or otherwise struck in any way. Ms Sipple did not raise the matter with MW.
The applicant submitted that the combination of a bruise and the assertion that he had caused it could not, without more evidence, establish that he had deliberately done so. The applicant submitted that given the seriousness of admitting this hearsay evidence, and the disadvantage to the applicant if that was done, the trial judge ought to have ruled that the evidence was inadmissible.
In relation to the text message, the applicant accepted that there were no temporal difficulties in that the context of the text message suggested that the representation by TM was made "shortly after" the asserted fact (i.e. that the applicant hurt TM's neck). Nevertheless, he submitted that the relevant circumstances did not suggest that it was unlikely that the representation was a fabrication or that it was highly probable that the representation was reliable. On the contrary, the applicant submitted that the instance of TM having been shown to have told a lie about being smacked, strongly supported the proposition that the representation sought to be adduced was not unlikely to be a fabrication or was unreliable. The applicant submitted that the representation contained in the text message could not on any view satisfy the exception to the hearsay rule in s 65(2)(b) or (c).
In relation to s 65(2)(b) all that is necessary is that the representation is made in circumstances that make it highly probable that the representation was reliable. In the case of Ms Sipple and Ms W, you have a child volunteering a statement to a person the child trusts, i.e. either the grandmother or aunt, about what had happened to her and then demonstrating by her action that she did actually understand what the word "punch" meant. Accordingly, the requirements of the section are met.
To contend that on another occasion in different circumstances TM had been unreliable when she had said that she had been smacked by Ms Key, is not to the point. In any event, what TM told her mother did have a basis in fact although the person said to have been smacked was herself not Ms Key's child. Moreover, the incident with Ms Key was the only instance identified when TM might have been unreliable.
It is significant that in these proceedings no submission was made either in writing or orally to the effect that Vickers and the line of authority following that case, should not be followed. The applicant was simply silent on that point. This is important because r 4 of the Criminal Appeal Rules 1970 (NSW) applies. On that issue, the cases following Vickers have agreed with the approach of Simpson J.
Rule 4 of the Criminal Appeal Rules provides:
"4 Exclusion of certain matters as ground for the appeal etc.
No direction omission to direct or decision as to the admission or rejection of evidence given by the judge presiding at the trial shall without the leave of the court be allowed as a ground for appeal or an application for leave to appeal unless the objection was taken at the trial to the direction omission or decision by the party appealing or applying for leave to appeal."
As indicated, no submissions were addressed to the application of r 4 and no basis, either factually or otherwise, was put forward to justify why r 4 would not apply to prevent the applicant relying upon this ground of appeal. When one has regard to the fact that s 65(2)(c) arguably applied to the evidence of Ms Sipple and Ms W had the matter been argued before the trial judge, there is a strong basis for refusing leave to the applicant to rely upon this ground of appeal.
In ARS v R [2011] NSWCCA 266 Bathurst CJ provided the following summary of important considerations in relation to the operation of r 4(at [148]):
"... The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170].
The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21].
A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].
An unexplained failure to take the point at the trial is usually a reasonably reliable indicator of the fairness and adequacy of the summing-up: Tekely v R [2007] NSWCCA 75 at [88], [130]."
It follows that I would refuse leave to allow the applicant to rely upon r 4 and upon this ground of appeal.
The text message sent by MW was admissible pursuant to s 66 of the Act. MW was a witness who had made previous representations to the applicant of having received a complaint from TM. In those circumstances, the Crown needed only to prove that it was a representation made at the time when it was fresh in the memory of MW for that representation to be admissible as an exception to the hearsay rule. It matters not that at the time of the trial MW could not remember what TM told her.
It follows from the above that I would refuse leave to rely upon this ground of appeal because the basis for the objection at trial was not the basis of this ground of appeal in accordance with the judgment of Simpson J in Vickers and the substantial body of authority which supports her Honour's approach. In any event, no error pursuant to s 6(1) of the Criminal Appeal Act has been disclosed and the applicant has not demonstrated that a miscarriage of justice was, or at least may have been occasioned by the admission into evidence of the three pieces of evidence which are the subject of this ground of appeal.
Having refused leave to rely upon r 4, I would dismiss this ground of appeal.
The applicant submitted that in the circumstances of this case, the trial judge needed to give a hearsay direction under s 165 as distinct from the tendency evidence direction the trial judge in fact gave. He submitted that the failure to give a hearsay direction meant that the jury were not directed on the weakness of the evidence as hearsay evidence, in particular the established unreliability of TM, her age and the inability to test the truth of anything that she had said out of court.
The applicant submitted that for this reason, the trial miscarried and the appeal should be allowed.
An examination of the record of the trial, including the jury's verdict, makes it clear that the necessary condition that evidence properly admitted at trial proved the applicant's guilt beyond reasonable doubt, was satisfied. Moreover, as her Honour indicated in her summing up, the circumstantial evidence, even without the four pieces of impugned tendency evidence was sufficient to establish beyond reasonable doubt the applicant's guilt.
The key pieces of evidence were that the applicant described MW feeding TM and putting her to bed. According to the applicant and MW, there was nothing to indicate anything untoward with TM's health when she was put to bed. Given that TM had consumed dinner and gone to bed in the usual way, she could not have been suffering the fatal injuries at that time.
The principal issue at trial was whether it was the applicant who assaulted TM and thus caused her death. As the trial judge noted in her summing up, the applicant's case was "someone did it but it wasn't me" (SU 16.9).
Both MW and the applicant gave evidence that they went outside and discussed what they were going to have for dinner. At the time MW and the applicant were outside TM's bedroom and the window was open. After perhaps half a hour, MW went with DM to purchase the take away food.
According to the applicant, shortly after MW and DM had left to purchase dinner, he heard TM's bedroom door. The applicant opened the door and found TM standing. The applicant's description of TM standing at the doorway after MW and DM had departed meant that she had not by then received the fatal blunt force trauma to her abdomen. It followed inevitably that only the applicant could have done so, particularly since he was observed by MW to be leaving TM's room when she and DM arrived with the food. The applicant's intent was proven by the blow or blows which he struck.
It follows that the evidence against the applicant was overwhelming and no miscarriage of justice was involved. Ground of Appeal 1 should be dismissed.
In relation to conviction, the orders which I propose are:
1. Leave be granted to extend the time within which the application for leave to appeal against conviction can be brought.
2. Leave to appeal against conviction is granted.
3. The appeal against conviction is dismissed.
In relation to the application for leave to appeal against sentence, I agree with Bellew J and the orders proposed by him.
ADAMSON J: I have read the draft judgment of Hoeben CJ at CL which substantially reproduces the helpful summary of the trial provided by the Crown and sets out the parties' submissions on the various grounds in respect of which leave to appeal against conviction was sought. I agree with the orders proposed by the Chief Judge and substantially with his Honour's reasons. I wish to add the following brief observations. I have read the draft judgment of Bellew J on the application for leave to appeal against sentence. I agree with the orders which his Honour proposes, although my reasons differ in respect of one matter which is outlined below.
In the present case, the issue was which of three possible suspects was responsible for the deceased's death. Evidence of other acts involving spontaneous cruelty or intentional harm to the deceased were therefore highly relevant to establish the identity of the deceased's killer by establishing the alleged tendency to deliberately inflict physical harm on the deceased. In the particular circumstances of the present case, it was not necessary that the acts be similar in any physical sense (use of a weapon, or otherwise, or directed to a particular part of the deceased's body rather than any other part, or the particular nature of the harm) as long as they tended to prove the alleged tendency.
I am satisfied that the trial judge was correct to find that the tendency evidence had significant probative value and was therefore admissible under ss 97 and 101 of the Evidence Act. Ground 3 has not been made out.