TL v The King [2022] HCA 35

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, STEWARD AND GLEESON JJ

TL APPELLANT

AND

THE KING RESPONDENT

TL v The King

[2022] HCA 35

Date of Hearing: 17 August 2022

Date of Judgment: 19 October 2022

S61/2022

ORDER

Appeal dismissed.

On appeal from the Supreme Court of New South Wales

Representation

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.

CATCHWORDS

TL v The King

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".

Evidence Act 1995 (NSW), s 97(1)(b).

1. 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]. 2. 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. 3. 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.