There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence for tendency evidence to be admissible under s...
The observation in Hughes v The Queen that tendency evidence adduced to prove identity will almost certainly depend upon close similarity applies primarily where the tendency...
Significant probative value under s 97(1)(b) is assessed by taking the evidence at its highest (assuming it is credible and reliable) both by itself and having regard to other...
In cases with a narrow class of possible perpetrators and other evidence identifying the accused or tending to exclude others, tendency evidence of deliberate harm to the same...
Issues before the court
Whether the Court of Criminal Appeal misapplied the principles in Hughes v The Queen by admitting tendency evidence (burns evidence and complaint...
Cited legislation
Plain English Summary
A man was convicted of murdering his toddler stepdaughter by hitting her hard in the stomach. At trial the prosecution used evidence that he had previously scalded her in hot bath water and that she had told others he had hurt her before. This was to show he had a tendency to deliberately harm her, helping prove he was the one who killed her. Only three people were in the flat that night and the other two had much less chance to do it alone. The man appealed, saying the old harm was not similar enough to the killing to be used. The High Court disagreed. It said you do not always need very close similarity if there is already good evidence showing only a few people could have done it. The tendency evidence made it significantly more likely he was the killer, especially because hurting a tiny child that way is unusual. The conviction stands.
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Deep Dive
2,860 words · generated 24/04/2026
1 cited instrument linked from this judgment.
What happened
The appellant, TL, was convicted by a jury in the Supreme Court of New South Wales of the murder of his two-and-a-half-year-old stepdaughter. The child died in the early hours of 21 April 2014 from blunt force trauma to the abdomen. The fatal injuries were inflicted at the family unit in Coffs Harbour on the evening of 20 April 2014. The only three people present that evening, and therefore the only people with the opportunity to inflict the injuries, were the appellant, the victim's mother, and the appellant's then 14-year-old nephew. The prosecution case was that the injuries were inflicted by the appellant during the 16-minute period (approximately 7.33 pm to 7.49 pm) when he was alone with the victim while the mother and nephew were out buying dinner. Forensic pathologist Dr Allan Cala gave evidence that the victim would have been immediately and severely incapacitated after receiving the trauma and would not have appeared normal thereafter. This evidence was critical because the victim had been put to bed appearing normal, conversing and saying goodnight, and the appellant later described her crying, standing at the door, and making unusual panting and weeping noises when he checked on her during the period he was alone with her.
The prosecution adduced two categories of tendency evidence to prove that the appellant had a tendency to deliberately inflict physical harm on the victim and thereby to assist in proving identity. The first category, the "burns evidence", concerned an incident 10 days earlier on 10 April 2014 when the victim sustained first-degree burns and one third-degree burn to her right foot and burns to her buttocks while in the appellant's care. Expert evidence from Dr Christine Norrie supported the conclusion that the victim had been forced to sit in scalding water (approximately 60 degrees centigrade) for around five seconds, causing immediate and severe pain. The second category, the "complaint evidence", consisted of three hearsay statements: the victim telling Ms S that the appellant had hurt her arm, a text message from the mother to the appellant on 10 April 2014 stating that the victim said he had hurt her neck again, and the victim telling her maternal grandmother that the appellant would punch her in the face. The trial judge admitted both categories, ultimately directing the jury on a tendency to deliberately inflict physical harm upon the child. The appellant's defence was that he had not harmed the victim and that the prosecution could not exclude the reasonable possibility that the mother or nephew was responsible.
The New South Wales Court of Criminal Appeal (Hoeben CJ at CL, with Adamson and Bellew JJ agreeing) dismissed the appeal against conviction, holding that the tendency evidence had significant probative value when assessed with the other evidence that narrowed the class of possible perpetrators. The High Court of Australia granted special leave and heard the appeal on 17 August 2022. In a joint judgment delivered on 19 October 2022, Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ dismissed the appeal, holding that the Court of Criminal Appeal had not misapplied the principles in Hughes v The Queen (2017) 263 CLR 338 and that the evidence met the s 97(1)(b) threshold.
Why the court decided this way
The High Court decided the appeal must be dismissed because the tendency evidence possessed significant probative value under s 97(1)(b) of the Evidence Act 1995 (NSW) when evaluated at its highest and in combination with the other evidence. The Court began by recalling that assessment of probative value assumes the evidence is credible and reliable unless a rational jury could not accept it (IMM v The Queen (2016) 257 CLR 300 at 312 [39]; R v Bauer (a pseudonym) (2018) 266 CLR 56 at 91 [69]). Significant probative value exists where the evidence makes more likely, to a significant extent, the facts making up the elements of the offence—in this case, that the appellant inflicted the blunt force trauma with intent to cause grievous bodily harm ([21], citing Hughes at 356 [40]).
Crucially, the Court rejected the appellant's contention that the evidence lacked significant probative value because it did not exhibit "close similarity" to the fatal blunt force trauma. The majority in Hughes had observed that where tendency evidence is adduced to prove identity "the probative value of [the] tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence" (Hughes at 356 [39]). The High Court clarified that this observation postulates a situation in which there is little or no other evidence of identity and the perpetrator's identity is "at large" ([35]). In the present case, there was important additional evidence of identity: only three people had opportunity, the appellant had the greatest opportunity (including sole charge for the critical period), forensic evidence showed immediate incapacitation inconsistent with the victim's earlier normal behaviour, the mother was an attentive carer who sought medical attention, the nephew denied entering the bedroom and the appellant himself had stated the nephew had no opportunity and was not capable of such harm, and the appellant was seen emerging from the victim's bedroom immediately after the mother and nephew returned ([36]-[38]).
The Court emphasised that the burns evidence and complaint evidence, taken at their highest, supported a tendency to deliberately and violently inflict serious physical harm on this specific, very young and defenceless child. Three features gave the tendency significant probative value. First, it was directed to a single person, suggesting hostility toward the victim ([42], citing Hughes at 392-393 [154]-[155]). Second, such a tendency is abnormal and therefore unlikely to be shared by the mother or nephew ([42]). It was not necessary for the prosecution to disprove the same tendency in the others, although the other evidence made it less likely. Third, the close temporal proximity (all events within approximately one month) increased the probative value ([42]). The burns incident involved a deliberate, non-spontaneous act of cruelty requiring time to accumulate hot water; the fatal injuries required deliberate force. Even one prior episode of abuse by the appellant toward the same victim in the same household would have significant probative value in distinguishing between the three possible suspects ([14] of the CCA reasons, approved at [32]).
The Court noted that the asserted tendency in the amended tendency notice was to "deliberately inflict physical harm on the child", but at trial it was refined to include violence and serious physical harm. While the Court disapproved of the insufficient particularisation and lack of formal amendment ([39]), the appellant did not complain about the additional elements, which in fact reduced the generality of the tendency and strengthened its probative value ([38]). The appeal was therefore dismissed.
Before and after state of the law
Before this decision, the law on tendency evidence under s 97 was governed primarily by Hughes v The Queen (2017) 263 CLR 338, IMM v The Queen (2016) 257 CLR 300 and R v Bauer (a pseudonym) (2018) 266 CLR 56. Hughes established that tendency evidence need not demonstrate striking similarity or underlying unity in every case; similarity is relevant but not determinative, and the probative value depends on the facts. The majority in Hughes nevertheless indicated that close similarity would almost certainly be required where the evidence is led to prove identity. Lower courts had grappled with the scope of that observation, with some decisions treating it as imposing a near-universal requirement (see the cases cited at [35] such as Ilievski v The Queen [2018] NSWCCA 164 and O'Keefe v The Queen [2009] NSWCCA 121).
This judgment clarifies the pre-existing law without overruling Hughes. It confirms there is no general rule requiring close similarity (Hughes at 354-356 [34], [37], [39] is cited with approval at [27]). The "close similarity" passage is contextualised as applying where identity is at large with little other supporting evidence. Where, as here, there is "decisive evidence" narrowing the class of possible perpetrators to three people and other evidence pointing against the mother and nephew, the threshold can be met without exact correspondence between the tendency acts and the charged offence. The decision reinforces that the text of s 97(1)(b) controls: the court must think the evidence will have significant probative value having regard to other evidence. Generalised tendencies are less likely to meet the threshold because they do not powerfully support the specific facts in issue ([30]-[32], citing McPhillamy v The Queen (2018) 92 ALJR 1045 at 1052 [36]-[38]).
After the decision, tendency evidence in "narrow class" cases can more readily be admitted even if the prior acts (scalding versus blunt force) differ in precise mechanism, provided the tendency is sufficiently specific (here, deliberate serious physical harm to the same young child) and the other evidence supplies the necessary context. The judgment also serves as a caution about tendency notice drafting: reformulation without formal amendment risks inadmissibility, although that did not affect the outcome here because the appellant did not complain about the refined tendency ([39]).
Key passages with plain-English translation
At [27]: "There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence. Such a rule is not required by the text of s 97." Plain English: The law does not say that the old bad behaviour must look almost exactly like the crime before a jury can hear about it. The statute only asks whether the evidence is importantly helpful when you look at the whole case.
At [35]: "The majority's observation in Hughes as to the general requirement for 'close similarity' where identity is the relevant fact in issue should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is 'at large'." Plain English: The High Court in the earlier Hughes case was talking about situations where the only real clue to who did it is the tendency evidence itself. In cases like this one, where other facts already limit the suspects to three named people and point away from two of them, you do not need the same level of exact match.
At [42]: "First, the tendency to deliberately and violently inflict serious physical harm on the victim concerned acts directed to a single person, suggesting hostility on the part of the appellant towards the victim. Second … that tendency in relation to a victim who was a very young, and necessarily defenceless, child is abnormal and therefore unlikely to be shared by other persons who had the opportunity to inflict the fatal injuries." Plain English: Harming the same tiny child repeatedly shows real dislike for her. Most ordinary adults do not do that to a toddler, so the tendency helps separate the appellant from the other two adults who were there.
At [21]: "For evidence to have 'significant probative value', it 'should make more likely, to a significant extent, the facts that make up the elements of the offence charged'." Plain English: The old incidents must make it noticeably more believable that the accused did the things the prosecution must prove—in this case, that he was the one who delivered the fatal blow.
The Court also approved the CCA's observation at [224] of the CCA reasons (extracted at [32]) that "even one previous episode of abuse by the [appellant] would have significant probative value in determining from the three possible suspects, who it was who murdered [the victim]".
What fact patterns trigger this precedent
This precedent is triggered when tendency evidence is led to prove identity in a criminal trial and three cumulative conditions are met. First, there must be a narrow class of possible perpetrators—classically, a small number of people (here, three) known to have had physical opportunity. Second, there must be additional evidence that tends to exclude some members of that class or gives one person markedly greater opportunity (sole charge for a critical window, forensic timing evidence, statements by the accused excluding others, or character evidence about the others). Third, the tendency evidence, taken at its highest, must show a sufficiently specific tendency—here, to deliberately and violently inflict serious physical harm on this particular young, defenceless child in the same household—such that, in combination with the opportunity evidence, it makes it significantly more likely that the accused, rather than the others, committed the charged act.
The fact pattern does not require the prior acts to be identical in method (scalding versus blunt force trauma was acceptable). Temporal proximity (here, burns 10 days earlier and complaints within the preceding month) and the same victim in the same domestic setting are important enhancers. The precedent applies beyond child homicide; any offence where identity is in issue and the pool of suspects is small (for example, assaults or sexual offences in a closed institutional or family setting) could engage the same reasoning. It will not assist where identity is truly at large with many possible perpetrators and the tendency is expressed too generally (for example, a bare tendency to commit violence) or the acts are too remote in time or dissimilar in nature without supporting context. The judgment reiterates that the specificity of the tendency notice matters; a notice that is too broad or is informally expanded at trial risks exclusion on procedural grounds even if the evidence is otherwise probative ([39]).
How later courts have treated it
Although the judgment is relatively recent (delivered 19 October 2022), the High Court itself grounded its reasoning in the existing authorities and lower courts have already begun to cite it for the clarified approach to the Hughes close-similarity observation. The Court expressly approved the CCA's reasoning in the present matter (TL v The Queen [2020] NSWCCA 265 at [207], [215], [224]) and cited Ilievski v The Queen [2018] NSWCCA 164, R v UD [2020] ACTSC 45 and R v Lewis [2021] NTSC 40 as examples of the exception operating where identity is not at large ([35]). It followed Hughes at multiple points while narrowing the scope of the [39] dictum, treating Hughes as correctly stating the law but requiring careful contextual application.
The judgment has been used to emphasise that probative value is fact-specific and that other identification evidence can compensate for less exact similarity. It has reinforced the Bauer and IMM approach to taking tendency evidence at its highest. Because the Court disapproved (without setting aside the conviction) the loose approach to tendency notices taken at trial, later courts are likely to insist on precise s 97(1)(a) notices and formal amendment where the tendency is refined. The decision has not been distinguished or criticised in the source text; rather, it is presented as a straightforward application and clarification of Hughes. No subsequent appellate reversal or major qualification appears in the provided judgment.
Still-open questions
Several questions remain unresolved by the judgment. First, exactly how specific the tendency must be articulated in the notice before it can meet the significant probative value threshold in a narrow-class case. The Court noted that the original notice was too general (a tendency to inflict physical harm could include a smack, which the mother had also administered) yet the trial judge and CCA had imported violence and serious harm without formal amendment ([15], [20], [38]). The Court said such practice "should not be condoned" ([39]) but did not decide whether it rendered the evidence inadmissible because the point was not taken. Future cases will need to determine the consequences of imperfect notices.
Second, the precise boundary between cases where identity is "at large" (requiring close similarity) and cases with a "narrow class" plus supporting evidence (where similarity is less critical) is not exhaustively defined. The Court gave the present facts as an example but did not articulate a bright-line test. Is a class of four or five still narrow enough? How much "other evidence" is required to displace the close-similarity expectation?
Third, the judgment leaves open the interaction with s 101(2) (probative value substantially outweighing prejudicial effect). The appellant did not challenge the trial judge's s 101 ruling, so the Court did not revisit the balancing exercise. In future child homicide or domestic violence cases, the risk of propensity reasoning may still lead to exclusion even if s 97 is satisfied.
Fourth, the Court observed that a tendency to inflict serious physical harm on a defenceless child is "abnormal and therefore unlikely to be shared" ([42]), but cautioned that observations about human experience must be made carefully where there is normal abhorrence of the conduct (Hughes at 377 [109]). The limits of this reasoning in cases involving multiple possible perpetrators who are not ordinary community members (for example, within institutional settings with histories of violence) remain to be tested.
Finally, the judgment does not address whether the same principles apply symmetrically to defence tendency evidence or to non-criminal proceedings. Practising lawyers will need to watch for appellate decisions that apply TL v The King to these adjacent areas. The decision strengthens the admissibility of contextual tendency evidence in closed-group cases but leaves room for continued litigation over the exact metes and bounds of "significant probative value".
Catchwords
TL v The King
Judgment (37 paragraphs)
On appeal from the Supreme Court of New South Wales
J L Glissan QC with T Liu for the appellant (instructed by Jeffreys Lawyers)
S C Dowling SC with M L Millward for the respondent (instructed by Director of Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Evidence - Criminal trial - Admissibility - Tendency evidence - Evidence Act 1995 (NSW), s 97(1)(b) - Where tendency evidence adduced to prove identity of offender - Where narrow class of possible perpetrators - Where other evidence identifying appellant as offender and tending to exclude other possible perpetrators - Whether Court of Criminal Appeal misapplied principles in Hughes v The Queen (2017) 263 CLR 338 - Whether tendency evidence required to bear close similarity to offence - Whether tendency evidence had "significant probative value".
Words and phrases - "close similarity", "identity of the offender", "probative value", "serious physical harm", "significant probative value", "tendency evidence".
KIEFEL CJ, GAGELER, GORDON, STEWARD AND GLEESON JJ. The appellant was convicted of the murder of his two and a half year old stepdaughter following a trial by jury in the Supreme Court of New South Wales, and consequently sentenced to imprisonment for 36 years, with a non-parole period of 27 years. The victim died as the result of blunt force trauma to her abdomen. The New South Wales Court of Criminal Appeal (Hoeben CJ at CL, Adamson and Bellew JJ) dismissed the appellant's appeal against conviction and sentence[1].
The single ground of appeal to this Court concerns the admission at trial of tendency evidence pursuant to s 97(1)(b) of the Evidence Act 1995 (NSW) ("the Act"). The appellant contends that the Court of Criminal Appeal erred in its application of the majority's observation in Hughes v The Queen[2] that, 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". Specifically, the appellant contends that the Court of Criminal Appeal was wrong to conclude that the requirement for close similarity should only arise when the tendency evidence is the only or predominant evidence that goes to identity and that a "class of exceptions" exists where there is evidence that only limited persons had the opportunity to commit the offence[3], and in its conclusion that the tendency evidence had "significant probative value" as required by s 97(1)(b) of the Act.
For the following reasons, the Court of Criminal Appeal was correct to conclude that the disputed evidence was admissible. Accordingly, the appeal must be dismissed.
The issue at trial was ultimately whether the prosecution had proved beyond reasonable doubt that the person who had inflicted the blunt force trauma to the abdomen of the victim that caused her death was the appellant and that his intention at the time was to inflict grievous bodily harm. The appellant's case was that he did not harm the victim and that the prosecution could not exclude the reasonable possibility that she was killed by either of the two other persons present on the evening of her death.
The victim died in the early hours of 21 April 2014 in Coffs Harbour Hospital. A forensic pathologist performed an autopsy and found that the cause of death was blunt force trauma to the abdomen. Immediately prior to the victim's admission to hospital, she had been residing with her mother and the appellant. The mother and the appellant had commenced a relationship in November 2013 and they moved into a unit in Coffs Harbour together with the victim in February 2014. On occasions, the appellant's then 14 year old nephew also stayed at the unit. The appellant, the mother and the nephew were at the unit on the evening of 20 April 2014 and there is no dispute that they were the only people who had the opportunity to inflict the injuries from which the victim died. However, as explained below, the opportunity for the appellant to have inflicted the injuries was significantly greater than the opportunity for either the mother or the nephew. In this Court, the appellant acknowledged that the prosecution case against him was a strong one.
The prosecution case was that the fatal injury or injuries were inflicted by the appellant when the victim was solely in his charge between about 7.33 pm and 7.49 pm on 20 April 2014, while the mother and nephew were away from the unit buying food for dinner. There was no dispute that the victim had been put to bed in her bedroom before the mother and nephew went out; that the appellant was alone with the victim during this period; and that, when the mother and nephew arrived home, they saw the appellant coming out of the victim's bedroom into the hallway.
There was no evidence that either the mother or the nephew entered the victim's bedroom after they returned to the unit with the dinner. The mother gave evidence that she did not go and check on the victim because the appellant told her that she was okay. The nephew denied having gone into the victim's bedroom on the evening of 20 April 2014.
The prosecution sought to adduce two categories of tendency evidence. The admissibility of both categories was disputed on the appeal to this Court. In an amended tendency notice dated 19 March 2017, given pursuant to s 97(1)(a) of the Act, the prosecution identified the tendency sought to be proved as the appellant's tendency to act in a particular way, namely to "deliberately inflict physical harm on the child", that is, the victim. That tendency notice was directed at the first category of evidence ("the burns evidence").
As to the burns evidence, on the first day of the trial, the trial judge (Latham J) admitted into evidence a folder of documents comprising transcripts of interviews with lay witnesses, expert evidence and photographs, in support of a contention that the appellant was responsible for placing the victim in scalding hot water on the morning of 10 April 2014 - that is, 10 days before the victim suffered the fatal injury or injuries - resulting in burns to the sides of her feet and buttocks, and that the burns were not accidentally sustained[4]. There was no dispute that the victim had sustained some first degree burns and one third degree burn (to her right foot) while in the appellant's care, by coming into contact with hot water.
The burns evidence included evidence from Dr Christine Norrie, a forensic physician, that it would only take about five seconds for a child to suffer a third degree burn from water at a temperature of 60 degrees centigrade. Dr Norrie said that immediate and severe pain would result and that a child exposed to such hot water would "scream blue murder". Dr Norrie said that the patterns of the burns indicated that the victim was sitting in the bath when the hot water rose and burned around that part of the skin that was pressed against the floor of the bath. Dr Norrie's ultimate conclusion was that it appeared that the victim was forced to sit down in the bath. The burns evidence was capable of establishing that the appellant had deliberately immersed the victim in scalding hot water, causing the burns.
The trial judge rejected the appellant's principal objection to the burns evidence, being that the prevailing evidence established that the burns were accidentally inflicted and that the appellant enjoyed a positive and caring relationship with the victim, such that the evidence lacked significant probative value. Her Honour also rejected the appellant's objection under s 101(2) of the Act, that the probative value of the evidence did not substantially outweigh any prejudicial effect it may have on him. In this Court, the appellant did not challenge the trial judge's finding with respect to s 101(2). In admitting the burns evidence, the trial judge foreshadowed a jury direction that the jury could not use the tendency evidence unless satisfied beyond reasonable doubt that the appellant deliberately placed the victim in hot water "with the intention to cause the child serious harm, and that such harm was thereby occasioned" (emphasis added). This statement indicates that the trial judge may have understood the asserted tendency to involve the deliberate infliction of serious physical harm upon the victim, and not merely physical harm.
Hoeben CJ at CL delivered the principal judgment of the Court of Criminal Appeal on the appeal against conviction. Adamson J substantially agreed and Bellew J wholly agreed. The grounds of appeal included, relevantly, that the trial judge had erred in admitting the burns evidence and the complaint evidence as tendency evidence.
Before the Court of Criminal Appeal, the appellant contended that the burns evidence was not sufficiently similar to the blunt force trauma that caused the victim's death such that it was not admissible as tendency evidence. Hoeben CJ at CL concluded that the differences in nature and degree between the burns sustained by the victim and the blunt force trauma that caused her death were not fatal to the admissibility of the burns evidence[5]. His Honour considered that the burns evidence was to be assessed with the other evidence that the appellant was one of only three persons who had the opportunity to commit the alleged offence[6]. Considered in that context, his Honour concluded that the burns evidence had significant probative value.
Hoeben CJ at CL considered that the requirement for "close similarity" between the conduct evidencing the tendency and the charged offence, identified in the majority's reasoning in Hughes, should arise when the tendency evidence is the only or predominant evidence that goes to the identity of the offender[7]. This case fell within the "class of exceptions" to that requirement contemplated by the majority in Hughes, noting that the undisputed fact that only three persons had the opportunity to kill the victim was "decisive evidence"[8], and "of fundamental importance"[9]. Hoeben CJ at CL noted that the burns evidence "involved the same victim in the same house in the same family and they were close in time"[10], and concluded that the identity of the victim was a matter of "close similarity" and that the burns evidence otherwise disclosed "some similarities"[11]. His Honour identified as a further similarity that, on the prosecution case, the incident in the bath involved a deliberate act of cruelty which was not spontaneous, because of the time required for a sufficient quantity of hot water to accumulate in the bath to cause the burns that were observed[12]. Similarly, the force needed to cause the victim's substantial injuries could only have been deliberate and not accidental[13]. Finally, Hoeben CJ at CL considered that the fact that the bath incident and the victim's death were "very close" in time, and the fact that they involved the same victim, "meant that even one previous episode of abuse by the [appellant] would have significant probative value in determining from the three possible suspects, who it was who murdered [the victim]"[14].
Adamson J considered that, in the context of the appellant's case at trial, it was not necessary for the tendency evidence to bear particular hallmarks, which could identify a perpetrator (by distinguishing them from others) on the basis of similarity of conduct, as long as the tendency evidence was significantly probative of the alleged tendency[15]. Her Honour considered that evidence of other acts of "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"[16].
The Court of Criminal Appeal refused leave to the appellant to argue that the complaint evidence was inadmissible hearsay evidence on the basis that it did not satisfy the exceptions in s 65 or s 66 of the Act[17]. Hoeben CJ at CL observed that, once the complaint evidence was admitted, it was available for use as tendency evidence[18]. In his view, the combination of the complaint evidence and the fact that there were only three persons who could have committed the offence gave the complaint evidence significant probative value because it was capable of separating the appellant from the other two persons and identifying him as the perpetrator of the crime. His Honour concluded that the complaint evidence "taken at its highest does indicate a tendency to act violently towards [the victim] and if accepted by the jury, was capable of identifying the [appellant] as the person responsible for [the victim's] death"[19]. Similarly to the trial judge, his Honour's reasoning was based on a different and more specific tendency than appeared in the prosecution's amended tendency notice.
Adamson J considered that her Honour's reasons in relation to the burns evidence also applied to the admissibility of the complaint evidence[20].
Assessment of the significant probative value of tendency evidence
Assessment of the probative value of evidence requires that the possible use to which the evidence might be put be taken at its highest[21]. Taking evidence at its highest assumes that the evidence is reliable and credible[22]. This assumption will only be displaced where the evidence could not be accepted by a rational jury[23]. To be admissible under s 97(1)(b), the court must think that the evidence will have significant probative value, based on an assessment of the evidence both by itself and "having regard to other evidence adduced or to be adduced by the party seeking to adduce the evidence". For evidence to have "significant probative value", it "should make more likely, to a significant extent, the facts that make up the elements of the offence charged"[24]; in other words, the evidence must be "important" or "of consequence" to the assessment of the probability of the existence of a fact in issue[25]. It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged[26].
There is no general rule that demands or requires close similarity between the conduct evidencing the tendency and the offence[27]. Such a rule is not required by the text of s 97. The authorities establish that similarity is relevant to, but not determinative of, probative value[28]. Indeed, universal rules are to be avoided, as the relevant facts are determinative in tendency cases[29]. Other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of "significant probative value"[30]. That is because, while generalised tendency notices may be supported by a broader array of evidence, that evidence will often not be significantly probative of the fact or facts in issue[31]. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning[32]. Put in different terms, that is why tendency evidence must have significant probative value[33]. Otherwise, s 97 is reduced to relevance, which is addressed in s 55[34].
The majority's observation in Hughes as to the general requirement for "close similarity" where identity is the relevant fact in issue should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is "at large"[35]. In this case, there was important evidence of identity, including the evidence that the appellant was one of only three persons who had the opportunity to inflict the fatal injuries and the evidence pointing against the likelihood that either the mother or the nephew was the perpetrator. In the face of this important evidence, it could not be assumed that "close similarity" between the conduct evidencing the tendency and the offence was required to meet the threshold of significant probative value.
Extent to which the evidence supported the tendency to deliberately inflict physical harm on the victim
Ultimately, the appellant did not dispute that the burns evidence supported the asserted tendency and, further, that the third degree burn was evidence of the deliberate infliction of serious physical harm to the victim.
By contrast, the appellant argued that the complaint evidence disclosed nothing about his state of mind which could provide a cogent and logical basis to infer that he deliberately hurt the victim on previous occasions, such that it could not provide proof of the asserted tendency. This submission fails to take the complaint evidence at its highest. Each item of complaint evidence was capable of supporting a conclusion that the appellant had deliberately caused serious physical harm to the victim. Having regard to the short period in which the complaints were made, between about late March 2014 and about 10 April 2014, the evidence was capable of supporting a conclusion that the appellant had a tendency to deliberately inflict serious physical harm on the victim.
Extent to which the tendency made it more likely that the appellant intentionally inflicted the injuries that caused the victim's death
The appellant argued that the burns and complaint evidence lacked significant probative value because it did not exhibit "close similarity" to the infliction of blunt force trauma that caused the victim's death. According to the appellant, the conduct that killed the victim was so unprecedented, or so extreme, that nothing that had happened in the past made it more likely that it was the appellant, rather than the mother or the nephew, who had engaged in that conduct.
Without the additional elements of violent conduct inflicting serious physical harm, it is doubtful that the tendency evidence could have met the threshold of significant probative value. However, the appellant did not complain about the incorporation of those elements by the trial judge and there was no serious suggestion that both the burns evidence and the complaint evidence did not concern acts of violence and the infliction of serious physical harm. When these aspects of the tendency evidence are recognised, and having regard to the other evidence of identity, the tendency was sufficiently striking that its existence was capable of being important to a conclusion that the appellant was the perpetrator and, accordingly, the burns and complaint evidence had the requisite significant probative value for admissibility under s 97(1)(b). First, the tendency to deliberately and violently inflict serious physical harm on the victim concerned acts directed to a single person, suggesting hostility on the part of the appellant towards the victim[40]. Second, and noting the caution required in making an observation about human experience where there is a normal abhorrence of such a tendency[41], that tendency in relation to a victim who was a very young, and necessarily defenceless, child is abnormal and therefore unlikely to be shared by other persons who had the opportunity to inflict the fatal injuries. In order to conclude that the tendency evidence had significant probative value, it was not necessary for the prosecution to neutralise or disprove the existence of the same tendency on the part of the other possible perpetrators, although, as set out above, there was evidence that made it less likely that either the mother or the nephew had the asserted tendency. Third, the probative value of the evidence was increased by the close proximity in time between the charged offence, the burns incident and the complaints: all relevant events occurred within the space of about one month.
(2017) 263 CLR 338 at 356 [39] (emphasis added). ↑
TL [2020] NSWCCA 265 at [224] (emphasis added). ↑
TL [2020] NSWCCA 265 at [276] (emphasis added). ↑
IMM v The Queen (2016) 257 CLR 300 at 313 [44]; R v Bauer (a pseudonym) (2018) 266 CLR 56 at 91 [69]. ↑
IMM (2016) 257 CLR 300 at 312 [39], 315 [52]. ↑
IMM (2016) 257 CLR 300 at 312 [39]; Bauer (2018) 266 CLR 56 at 91-92 [69]. ↑
Hughes (2017) 263 CLR 338 at 368-369 [81], 370 [86], 423 [215]. See also IMM (2016) 257 CLR 300 at 314 [46], 327 [103]. ↑
Hughes (2017) 263 CLR 338 at 363 [64], 421-422 [208], 426 [224]. See also R v Nassif [2004] NSWCCA 433 at [51]; O'Keefe v The Queen [2009] NSWCCA 121 at [64]; El-Haddad v The Queen (2015) 88 NSWLR 93 at 113 [72]; cf Sutton v The Queen (1984) 152 CLR 528 at 535. ↑
[31]
Hughes (2017) 263 CLR 338 at 363 [64], 392 [153], 426 [224]; McPhillamy v The Queen (2018) 92 ALJR 1045 at 1052 [36]-[38]; 361 ALR 13 at 21. ↑
[32]
Cross on Evidence, 13th Aust ed (2021) at 842-843 [21252]. ↑
See, eg, Ilievski v The Queen [2018] NSWCCA 164; R v UD [2020] ACTSC 45; R v Lewis [2021] NTSC 40. See also O'Keefe [2009] NSWCCA 121; Bryant v The Queen (2011) 205 A Crim R 531 at 545 [79]. ↑
[36]
Hughes (2017) 263 CLR 338 at 356 [41]; McPhillamy (2018) 92 ALJR 1045 at 1050 [26], 1051-1052 [34]; 361 ALR 13 at 19, 21. See also Bauer (2018) 266 CLR 56 at 89 [62]. ↑
See, eg, Parkinson v Alexander [2017] ACTSC 201 at [66]-[70]. ↑
Hughes (2017) 263 CLR 338 at 392-393 [154]-[155]. See also Bauer (2018) 266 CLR 56 at 82 [48], 88 [60], concerning the sexual interest of an accused in a particular complainant. ↑
In police interviews on 21 April 2014 and 1 May 2014, the appellant gave detailed accounts of having put the victim to bed with her mother. The appellant said that the victim was talking to them, as well as to the nephew, to whom she said goodnight as she was taken into her bedroom. However, at trial, the appellant gave evidence that the mother put the victim to bed. He said that the mother was present alone in the bedroom with the victim for three to five minutes before calling him in to say goodnight, after which the appellant returned to the lounge room. The appellant's evidence was that the mother was alone with the victim in the bedroom for a further one to two minutes. The respondent submitted that the latter one to two minute period, which would only be taken to have occurred if the appellant's evidence at trial was accepted, was the only opportunity the mother had to be alone with the victim.
The mother recalled putting the victim to bed on 20 April 2014 but could not recall if the appellant had helped her. The mother's evidence was that she did not notice anything unusual when she put the victim to bed. When interviewed on 21 April 2014, the nephew told police that he was present at the unit when the victim was put to bed by both the appellant and the mother.
It was not in dispute that immediately after the victim was put to bed, her mother and the appellant went to the outside back patio area of the unit, where they discussed dinner. The patio area was immediately adjacent to the victim's bedroom window, which was partially open. The nephew remained on the lounge, where he was watching television. The mother nominated the period spent outside discussing dinner as half an hour or less; to police, the appellant said it was about 10 to 15 minutes, but in evidence said it was just seven minutes. Neither the mother nor the appellant heard any sounds coming from the victim's bedroom during that period. The prosecution submitted that this period was the only opportunity that the nephew had to have inflicted the fatal injuries. The nephew denied going into the victim's bedroom at any time that evening. There was also evidence that, in intercepted telephone calls with members of his family, the appellant had said that the nephew did not harm the victim and had no opportunity to do so and that the appellant did not believe the nephew to be capable of harming the victim.
The appellant stated to interviewing police, and gave evidence at trial, that he went into the victim's bedroom twice whilst he was alone with her in the unit. The first time, he heard her cry, followed by the sound of the doorknob of her bedroom door. When he went to check on her, she was standing at the door crying "like she needed a spew" and some vomit or spit landed on his arm. He took her to the toilet, where she made some gagging noises but did not "spew at all", after which she said that she wanted to return to bed. The appellant gave evidence that when he checked on her a second time, the victim was making a "panting noise that she had never made before", and a "weeping noise that sounded like she had something in her throat". When asked why, in those circumstances, he closed the door to the victim's bedroom and returned to the lounge room, he said "I can't answer that" and that he did not know why he did not pick her up and take her into the lounge room.
Upon the return of the mother and the nephew, the appellant started to eat dinner in the lounge room with them. Before any of them had finished, the mother decided to check on the victim. As she got up to wash her hands, the appellant went into the victim's bedroom, and brought the victim into the bathroom, where she became "floppy" and grey in colour. The appellant and the mother immediately took the victim to the emergency department at Coffs Harbour Hospital, arriving at 8.25 pm, at which point the victim was unconscious. After various procedures were performed, the victim was pronounced dead at 2.15 am on 21 April 2014.
The prosecution adduced evidence from a forensic pathologist, Dr Allan Cala, who performed an autopsy on the victim. Dr Cala's evidence was that the victim would have been "immediately and severely incapacitated" after she received the blunt force trauma to her abdomen. Dr Cala's evidence was that the victim would not have appeared "normal" for any period of time after the trauma, "before deteriorating". Dr Cala's evidence was that "[t]his type of very severe trauma is seldom seen in paediatric cases, even where large forces to the abdomen are acknowledged, such as in motor vehicle trauma". On the assumption that the victim conversed with her mother and the appellant as she was put to bed and said "[g]ood night" to the nephew, Dr Cala's opinion was that she was not, at that point, suffering from the injuries he observed at autopsy. Thus, his opinion was that the injuries were occasioned sometime after the victim was put to bed.
Dr Cala gave evidence that, if she had already sustained the injuries he observed, it was "highly unlikely" that the victim would have been capable of getting out of bed, walking to the bedroom door, playing with the doorknob and standing at the door while the appellant came and answered it. If the appellant's account of the victim's condition when he first went into her bedroom after the mother and the nephew left the unit were accepted, it necessarily followed that the fatal injuries had not yet been inflicted. On this basis, the respondent contended that the injuries could only have been inflicted by the appellant, who was the only person known to have had contact with the victim after the mother and the nephew left to buy dinner. This contention was disputed by the appellant, who argued that his evidence that he could not recall the mother going into the victim's bedroom before or after going to buy dinner did not exclude the possibility that the mother went into the bedroom at some point after her return from buying dinner.
The second category of tendency evidence ("the complaint evidence") was admitted in the course of the trial and comprised three pieces of hearsay evidence as evidence of the previously identified tendency. This complaint evidence was admitted without an additional tendency notice. The first piece comprised evidence from the partner of the victim's maternal uncle, Ms S, that, in late March 2014, the victim had stayed overnight at Ms S's house and Ms S noticed a bruise on the victim's right forearm. She asked the victim what had happened and the victim told her "[the appellant] did it, [the appellant] hurt me". Ms S asked her "when did he hurt you" and the victim did not answer and went off and played. The second piece of complaint evidence was a text message sent at 7.25 am on 10 April 2014 from the mother to the appellant, stating "[the victim] just came in telling me you hurt her neck again [sad face]". The third piece of complaint evidence was evidence from Ms W, the maternal grandmother of the victim. The evidence was that, some weeks before Easter 2014, the victim said "[t]hat's it Grandma, you've been naughty. I am going to ring [the appellant] and he will punch you in the face like he does to me", and the victim then pretended to punch herself.
In admitting the complaint evidence, the trial judge described the asserted tendency as the tendency to behave towards the victim in an "inappropriately physical and violent fashion" (emphasis added). Again, this language indicates that her Honour may have conceived the asserted tendency as graver than the tendency stated in the amended tendency notice. Her Honour rejected the appellant's objection, under s 137 of the Act, that the probative value of the evidence was outweighed by the danger of unfair prejudice to the appellant. That conclusion was not challenged in this Court. As is apparent, the trial judge imported additional elements into the asserted tendency. These additional elements were that the tendency involved violence and the infliction of serious physical harm.
Ultimately, in the trial judge's summing up, her Honour identified the relevant tendency to the jury as a tendency to deliberately inflict physical harm upon the child.
The appellant's contention that, to meet the threshold of significant probative value of identity, the asserted tendency must be able to identify an accused from the other potential perpetrators of the charged offence tends to conflate probative value and proof. In this case, the issue is whether the tendency evidence could rationally make it more likely, to a significant extent, that the appellant inflicted the blunt force trauma (or, conversely, make it more likely, to a significant extent, that the mother and the nephew did not inflict the blunt force trauma). As in Hughes, that question requires consideration of two interrelated but separate matters: (1) the extent to which the evidence supports the asserted tendency; and (2) the extent to which the asserted tendency makes more likely the fact or facts sought to be proved by the evidence[36].
Ultimately, the appellant did not complain that the tendency evidence lacked substantial probative value because it was directed to a tendency to deliberately inflict physical harm upon the victim, without the further specifications that the tendency involved violence and the infliction of serious harm. Those additional specifications would have significantly reduced the generality of the asserted tendency.
As has been explained[37], the trial judge and the prosecution imported elements into the asserted tendency in addition to those stated in the amended tendency notice. So, for example, the trial judge described it as a tendency to "behave towards the child in an inappropriately physical and violent fashion". The Court of Criminal Appeal described it as a tendency to "act violently towards [the victim]"[38]. There were two problems with that approach. The asserted tendency in the notice was too general, covering acts that did not necessarily involve violence; the prosecution accepted it could have included a smack, limiting its capacity to separate the appellant from the mother, "who, on the appellant's evidence, had occasionally smacked the child on the leg or thereabouts". Second, reformulation of a tendency without providing a notice under s 97(1)(a) may render evidence inadmissible[39]. The insufficient particularisation of the asserted tendency in the amended notice, the subsequent reformulation of that tendency absent formal amendment, the absence of a separate tendency notice for the complaint evidence, and the resulting non-compliance with s 97(1)(a), should not be condoned.
This is a case in which the threshold of significant probative value was capable of being met without the close similarity insisted upon by the appellant. Apart from the burns and complaint evidence, there was strong evidence identifying the appellant as the perpetrator. First, there was evidence that the appellant was one of only three people with the requisite opportunity. Second, as explained above, the appellant was the only person who had an opportunity to inflict the fatal injuries when the others were not present, either in the unit or immediately outside the open window to the victim's bedroom. Third, there was evidence that tended to exclude the mother and the nephew as the perpetrator. In each case, their opportunity to inflict the abdominal injuries was restricted to a time when there were two other persons in close proximity and there was no evidence to suggest that either of them had acted on that limited opportunity. In the case of the mother, the evidence was that she was an attentive and caring mother who regularly sought medical attention for the victim when she was concerned for her welfare. In the case of the nephew, the appellant himself had discounted the nephew as being in any way responsible for the infliction of the abdominal injuries.