Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: TL v R [2020] NSWCCA 265 Hearing dates: 8 July 2020 Decision date: 19 October 2020 Before: Hoeben CJ at CL at [1]; Adamson J at [303]; Bellew J at [319] Decision: (1) Leave is 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. (4) Leave to appeal against sentence granted. (5) The appeal against sentence is dismissed. Catchwords: CRIMINAL LAW – CONVICTION APPEAL – offence of murder – victim a two year old child – identity of offender in issue – whether hearsay evidence wrongly admitted – whether tendency evidence wrongly admitted – whether direction pursuant to s 165 of the Evidence Act 1995 (NSW) should have been given to the jury – appeal against conviction dismissed – SENTENCE APPEAL – whether level of objective seriousness of offending properly assessed – whether sentence was manifestly excessive – no lesser sentence warranted in law – appeal against sentence dismissed. Legislation Cited: Crimes Act 1900 (NSW) – s 18(1)(a) Crimes (Sentencing Procedure) Act 1999 (NSW) – s 21A Criminal Appeal Act 1912 (NSW) – ss 5(1)(b), 6(1), 10(1)(b) Criminal Appeal Rules 1970 (NSW) – r 4 Evidence Act 1995 (NSW) – ss 65, 66, 97, 98, 101, 137, 165 Cases Cited: Apps v R [2006] NSWCCA 290 Aravena v R (2015) 91 NSWLR 258; [2015] NSWCCA 288 ARS v R [2011] NSWCCA 266 Baines v R [2016] NSWCCA 132 Bin Sulaeman v R [2013] NSWCCA 283 Bryant v R (2011) 205 A Crim R 531; [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 Queen; Jones 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 R; Nolan v R [2018] NSWCCA 164 IMM v The Queen (2016) 259 CLR 300; [2016] HCA 14 Kanaan and Ors v Regina [2006] NSWCCA 109 LN v R [2020] NSWCCA 131 LS v R [2020] NSWCCA 120 KT v R [2008] NSWCCA 51 McPhillamy v The Queen (2018) 92 ALJR 1045; [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 R; R v O'Keefe [2009] NSWCCA 121 Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 Pfitzner v R [2010] NSWCCA 314 Poniris v R [2014] NSWCCA 100 R v Abrahams [2013] NSWSC 952 R v Ambrosoli (2002) 55 NSWLR 603; [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 LN; R 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; [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 Solicitors: P E Green – Applicant Solicitor for Public Prosecutions File Number(s): 2014/00131951 Publication restriction: Yes Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Criminal Date of Decision: 5 June 2017 Before: Latham J File Number(s): 2014/00131951 JUDGMENT 1. HOEBEN CJ at CL: Nature of proceedings The applicant (TL) was convicted after a trial before Latham J and a jury in the Supreme Court at Coffs Harbour between 19 April and 19 May 2017 on one count of murder contrary to s 18(1)(a) of the Crimes Act 1900 (NSW). The victim was his stepdaughter TM who died on 21 April 2014. She was aged two and a half. 1. The applicant seeks leave to appeal against his conviction. None of the applicant's grounds of appeal raises a question of law alone. It follows that his appeal is pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) and each ground requires leave. He has also sought leave to appeal against sentence. Crown case 1. TM died on 21 April 2014 in Coffs Harbour Hospital. Immediately before her admission to hospital, she had been residing with the applicant and her mother "MW". MW and the applicant were in a de facto relationship and he played a fatherhood role in TM's life. On occasions, the applicant's nephew "DM" stayed with them in their unit. DM was at the unit on the evening of 20 April 2014. He had also been staying there when an incident occurred some ten days earlier when the deceased had sustained burns to her feet in hot water. 2. On 20 April 2014, MW had been out with TM and returned to their home unit in the early evening. Shortly thereafter, MW and DM left the unit to purchase food at a Kentucky Fried Chicken (KFC) outlet. They were away only a short while. On their return, the applicant reported that the deceased had vomited and it was noted that she was limp. The applicant and MW immediately took the child to the Emergency Department at Coffs Harbour Hospital. A series of procedures were carried out without success and she was pronounced deceased in the early hours of 21 April 2014. 3. Although various causes were explored, it was not in issue by the conclusion of the trial that the cause of TM's death was blunt force trauma to her abdomen which had caused a tear in the mesentery and resulted in substantial internal bleeding leading to her death. The Crown relied on an intention to inflict grievous bodily harm. 4. The Crown case was that the injury that directly led to the death of TM had been caused by the applicant when he was solely in charge of her while the others were away getting food from the KFC outlet. The injury could have been caused by either MW or DM, although the opportunity of the latter to do so was relatively limited. 5. The applicant, when interviewed by the police, immediately denied assaulting TM. He gave evidence and denied causing any blunt force trauma which led to the child's death. 6. The issue at trial ultimately became whether the Crown had proved beyond reasonable doubt that the person who had inflicted the blunt force trauma to the abdomen of TM that caused her death was the applicant and that his intention at the time was to inflict grievous bodily harm. 7. In his conviction appeal, the applicant relied upon the following grounds: Ground 1 – The trial miscarried Ground 2 – The trial judge erred in admitting inadmissible hearsay evidence 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 scald/burn sustained by TM as tendency evidence Ground 4 – The trial judge erred in admitting evidence of bruising observed on the child and evidence of other instances of harm to the child as tendency evidence 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 EVIDENCE AT TRIAL MW 1. MW gave birth to the deceased in October 2011 (T225). When her relationship with the deceased's father ended, MW began a relationship with the applicant in November 2013. In February 2014, the applicant, the deceased and MW moved into a unit in Karuah Avenue, Coffs Harbour. MW described the deceased as "really good". She was putting on weight in the normal way and was toilet training. At the time of her death, the deceased had her own bedroom. The applicant's nephew, DM, would often stay over at the unit on the lounge. The applicant was working fulltime for the NBN installation company from about six or seven in the morning until about three or four in the afternoon. MW was not working. 2. MW was asked about bruises on the deceased when she was about four months old. MW said she was aware of the bruises when the deceased went to day care but did not see what it was that caused the bruises. On earlier occasions, MW had seen bruises on the deceased's "neck, chin, jawline sort of area". MW noticed that bruises on the deceased's neck would fade and come back. She also noticed that if she or the applicant tickled the deceased on the stomach that she would bruise. There was an occasion when she went to a kids' fun and social centre and came home with little bruises on her legs. MW said "I started putting all of that down to bruising easily instead of just a normal child bruising". 3. Sometime in April 2014, MW was changing the deceased's nappy on the lounge at around 7am in the morning when she noticed marks on her feet and bottom. She took photos of the marks and called the applicant. MW said "the only part of the conversation I really remember is him letting me know that he had bathed her and that she said the water was too hot and that she'd slipped, and then I sent the photos through". The photographs MW took and sent to the applicant were tendered as Exhibit G. In relation to the photos of the deceased's ankle, MW said the whiter parts on the foot were blisters and that "the right foot was worse than the other foot but they did both blister" (T239-240). 4. As part of a text message chain on 10 April 2014, MW sent a text to the applicant that read "TM just came in telling me you hurt her neck again [sad face]" (T312). When asked what the deceased told her, MW responded "I can't remember her telling me that" (T312.46). Eighteen minutes later, the applicant sent a text to MW that said "I'm over this"(T312). MW replied "Over what?" and the applicant replied "Her saying those things MW. She was fine this morning with me. I'd never hurt her. MW, I feel like shit knowing I could have had the water too hot for her. I might come home" (T313). After sending the photos and text messages, MW picked up the applicant. 5. When she asked him about the burns, the applicant said "he went to check her before he left, she'd done a poo so he bathed her. When he was cleaning out the bottom of the bath with hot water that was when TM had jumped in and she'd slipped up when it was just straight hot water and he'd pulled her out" (T243). The evidence of MW was: "Q: Did you say she slipped in? A: Like she's gone to get in and he said that as she's gone to get in, she's slipped which I assume would have been because of the hot water. Q: Well don't assume anything. Just tell us what it was that he said. A: Yes so that's what he said. Q: All right. Now was she able to step into the bath herself? A: Yes. Q: Now were you aware at that time of whether or not he had any practice of, in terms of cleaning TM up, once she'd dirtied her nappy? A: No, I would always do it, or usually. Q: Was there any occasion, apart from this, that there was any washing of her like that? A: Like in a bath? Q: Yes, by him? A: No, I'm pretty sure I done all the bathing. Q: I beg your pardon? A: I'm pretty sure I done all the bathing. Q: All right, but in terms of, if she pooed her nappy, for example? A: I done that. Q: Okay, but was there any occasion when he had done it by washing her down in the bathtub? A: No, not that I can think of no. Q: Did you, on any occasion after this conversation that you had with him about how the burns had occurred, did you on any occasion tell anyone else that you were in the bathroom as opposed to him when this occurred? A: Yeah. Q: Who did you tell that to? A: My family. Q: Anyone else? A: Not that I can think of. Q: Why did you do that? A: Because we'd seen TL's family there was a lot of already, you know, "Why didn't you check the hot water?" TL seemed to feel really bad about it and I just didn't want to, I knew that he 'd cop more coming from my family." (T243-244). 1. MW never heard the deceased making any painful cry of any sort because of her burns. Over the Easter weekend of 2014, DM was staying at the unit and the deceased was "really good, minus her feet". MW recalled that on Easter Sunday there were Easter eggs for the deceased and that "she was excited" about the eggs even though she "was struggling with her feet ... you could see that when she walked she was in pain, she wanted to be picked up quite a lot, and she wouldn't really choose to get up and run around ... she was tiptoeing"(T248). 2. Over the Easter weekend (19-20 April 2014), a video was taken of the deceased who was wearing socks. MW said that this was to "cover the bandages". The video showed the deceased sitting with her legs crossed which did not cause her any pain or discomfort at that time. When MW put the deceased to bed later that night, she described her condition as "the same" as how she was in the video taken earlier that day. The video was tendered as Exhibit H (T252). 3. MW said that she, DM, the applicant and the deceased returned home at about 5pm on 20 April. Not long afterwards MW and the deceased drove to her mother's house for a visit and stayed there for about an hour. MW described the deceased as "fine" and "tired". MW and the deceased then drove home at about 6pm. When they returned, DM and the applicant were watching TV. MW made the deceased some party pies for dinner. 4. MW was pretty sure the deceased ate sitting at the table and "I don't think it was long after that I got her ready for bed ... I would've changed her nappy, wiped her down" (T258). MW put her to bed and could not recall if the applicant helped. She and the deceased hugged each other. The deceased did not complain of any discomfort. MW turned out the light and closed her door as normal. MW explained that the deceased was tall enough to reach the door handle of her bedroom to open the door and would often come out and wake MW up in the mornings. 5. After putting the deceased to bed, MW and the applicant went to the back patio to discuss dinner plans. DM stayed inside and watched TV. 6. MW's evidence was: "Q: You said you were outside for a period of time was that for the whole of that half an hour or something less? A: I'm not too sure, I think I left from out the back to leave and go get dinner so. Q: Before you left to go and get KFC did you hear any sounds coming from TM's room? A: No. Q: When you left are you able to say whether her door was still closed? A: Yeah. Q: When you left did you go alone or with someone? A: No DM came with me."(T259-260). 1. There was no issue that MW and DM went to KFC and a receipt from KFC was tendered as Exhibit J. MW said that when they returned, the front door of the unit was open but the screen door was closed and locked. When MW approached the front door, she saw the applicant coming out of the deceased's room in the hallway. MW could not recall what the applicant was wearing. As the applicant unlocked the screen door MW asked him what was wrong and why was he in the deceased's room. "He told me that TM had cried and he went to check her; that she had a little spew, so he offered her a drink and she didn't want it. She wanted to go nigh nigh, and he put her back to bed ... then I said 'So she's okay?' and he said Yeah'" (T273). 1. MW said she did not go and check on the deceased "because he said she was okay" (T 273). 2. MW said that the applicant told her that he "had gotten spew on his arm", so he went and "washed his arm off". When asked if she saw anything on the applicant's arm, MW responded "no I wasn't close enough". MW and DM ate their KFC dinner on the couch and the applicant sat at the table. MW did not hear any sounds coming from the deceased's room. 3. Before any of them had finished their meal, MW "got a feeling to go and check on her" (T275). As she got up to go and wash her hands before checking on the deceased, the applicant got up and went "to check her and took her into the toilet, and that's when I seen her". After washing her hands, MW saw the applicant with the deceased in the toilet and said "he was rubbing the deceased's back and telling her that she needed to spew ... he knelt down and she was standing like face towards the toilet and he was rubbing her back, and then she's gone floppy and he'd had to held her - hold her face up". MW did not see the deceased vomit. MW's evidence was: Q: When you say "floppy", could you describe to the jury what you mean by "floppy"? A: Kind of just like went lethargic, like - I don't know how to explain it She just couldn't control her body anymore. Q: And what - how was she being held, if at all, at that time? A: The same. So with TL standing with her at the toilet and she's gone floppy. He's picked her up with his arms like a baby. Q: Yep? A: And carried her out to the car. Q: Did she say anything? A: She tried. Q: Okay but did you hear her say anything? A: On the way to the hospital she managed to tell me that she loved me and that was about it." (T276-277) 1. The deceased was sitting in the front seat next to MW who was driving and "panicking". When they arrived at the emergency area, they rushed through and yelled for help and nurses and doctors took the deceased to another room "to try and stabilise her". Both MW and the applicant called their families who came to be with them at the hospital. Medical staff told MW that the "cause of death was internal bleeding". 2. MW had no trouble putting the deceased to bed on the night of her death and the deceased had even "asked to go to bed". MW did not notice anything unusual, other than the burns on her bottom cheek and the two bruises underneath her jaw that she had seen before. On 20 April 2014, the deceased had "a little bruise on her head from when she was with MW's brother Shane and his girlfriend, and they said that she had hit her head on the rails of the stairs at her nan's place". MW could not say with certainty whether the deceased had complained of a sore tummy on Easter Sunday, but she had noticed that the hair on the top of her head had "thinned out a lot more". MW described the deceased on Easter Sunday as "she was good. She - because of her feet and not being able to walk around in them properly, she wasn't obviously running around, so she was sitting more with me than playing ... but like her attitude wise, she was fine."(T284) 3. At some point in the weeks before Easter 2014, MW was at her mother's house and had a conversation with her concerning something the deceased had told her (T293). Q: So what did your mum say? A: So mum had TM for a little while and when I got back there she was talking about how they were playing a game that we used to always play but in the game she had also mentioned that TL had punched her. Q: Who said that TL punched her? A: TM said that to my mum. Q: Was this something that your mum told you? A: Yeah. Q: Did you speak to TL at any time after that? A: Yeah, but when Mum had told me it was like it was in the game that we all played anyway, so I didn't take it as if he'd actually hurt her. Like, so it was kind of I would've brought it up but probably not -- Q: Do you have any memory of bringing it up with him? A: No." (T293.28) Cross-examination 1. MW agreed that there was an occasion where the deceased told MW that Claire Key, the owner of Midcoast Family Day Care Centre, had spanked or smacked her (T294). MW spoke with Ms Key and they established that it did not happen and MW accepted this. Ms Key's daughter also attended day care and Ms Key was cranky at her daughter for something and had smacked her daughter "but then TM had said that it happened to her". 2. MW could not remember the applicant saying goodnight to the deceased on the night of her death and disagreed that he came into the deceased's room to say goodnight and they both stayed in her room for a period of time. 3. MW said it was very rare that the applicant would change the deceased's nappy, but that on some occasions he did. The usual routine in April 2014 was that the applicant would go to work early and MW would stay in bed. This occurred on the day the deceased received burns. When MW woke up, she checked on the deceased who was fast asleep. She went and sat on the couch with DM for about 15 or 20 minutes until the deceased woke up. The deceased told MW that she had pooed but when MW checked her nappy, she had not done a poo and MW noticed redness on her bottom "so I took off her pants and her nappy, and that's when I noticed the marks on her feet and bottom" (T302). MW took photos of the marks, which at the time she did not know were burns. MW then called the applicant who told her that he had bathed the deceased and that she had been burned. MW agreed that he was upset and was concerned about something that had happened to the deceased for which he was responsible. 4. The only area that MW could remember as blistering from the burns was on the crease of the deceased's thigh on the right leg where the "broken skin" was. She also recalled her blistering on the part of her foot near the white area as depicted in the photographs in Exhibit G (T304). MW dressed the deceased's burns on Easter Friday but on Easter Saturday and Sunday "I can't remember doing it". MW said that she believed that the deceased bruised easily. 5. MW could not remember the deceased complaining of having a sore tummy on Easter Sunday. MW could not remember the deceased not eating on Easter Sunday. MW said that the deceased's appetite was no different on Easter Sunday to any other day. She agreed that she was alone with the deceased for periods of time on Easter Sunday, including when she went over to her mother Lee-Ann's house (T309-310). Q: And on 20 April, on Easter Sunday, did you at any time do anything to hurt TM? A: No. Q: When you were out the back there before you went to KFC where TL was having a cigarette so far as DM was concerned he was somewhere inside the house? A: Yeah, he was inside the house. Q: But you don't know where he was? A: I'm pretty sure he was in the lounge room. Q: And you didn't do anything to hurt - did you do anything to hurt TM in her bedroom that night? A: No". (T309-310) 1. In re-examination, MW recalled that there was an occasion when the deceased said "TL no hurt her", which she took to mean that the applicant had not hurt the deceased (T313). DM 1. DM, the nephew of the applicant, was aged 14 at the time of the deceased's murder and 17 years of age at the time of the trial. DM's recorded interviews with police from 2014, were played as his evidence in chief. Evidence in Chief – Recorded Interview 21 April 2014 1. DM gave evidence that he called MW and the applicant's unit "TL's place" and that he would stay there every weekend. He gave evidence that "me and [TL] are real close ... he's my favourite relative out of the whole family. DM described the deceased as "really cute, funny, nice. Actually really smart for her age". He recalled going with the deceased to the doctors for "dressing something" and that she was "crying a bit". DM was also aware that the deceased had bruises due to his own mum grabbing kids on the cheek which resulted in the deceased having a bruise under her cheeks. DM recalled his mother saying she did it to lots of other kids and MW telling DM's mother not to do it again. 2. On Easter Sunday, DM saw the deceased having dinner and "TL and MW kissed her, hugged her, put her to bed and MW and me went and got KFC". He did not see the deceased have a bath or shower before bed and recalled she was "sleepy" and she said ... "I want to go to bed". DM said goodnight to her and remembered she was wearing her pyjamas. When he and MW returned, "[TL] was cleaning up vomit, from [TM], and then [TM] was making a weird noise, like, about, she was about to vomit, again, but trying to breathe". 3. DM described the deceased over the Easter weekend as "perfect" and "playing around". He saw her eating some chocolates. He remembered that she had some pie and apple juice for dinner on Easter Sunday at the dining table while he and the applicant watched a documentary and MW did the dishes. About 20 minutes later when he returned from a friend's place, the deceased was asleep in her room and MW said "Oh come with me we're going to get dinner [at] KFC". 4. When they returned from KFC, less than 10 minutes later, the deceased was still in her room with the door closed and the applicant was on the couch watching TV. DM saw "gooey...clear, yellow" vomit on the applicant's arm. DM did not see the deceased vomit but said that it happened because that was what the applicant told him. DM, MW and the applicant then sat down on the lounges and ate the KFC. MW then said "Let's go check on TM" and they opened her bedroom door which was shut, turned on her bedroom lights and the applicant picked up the deceased and she was pale. MW started crying and said "Oh my god, [TL] look at her face". Recorded Interview 1 May 2014 1. DM recalled that on Easter Sunday 20 April 2014, "there were burns on [TM]'s feet and um she wasn't like, very, very well but she was sort of well. Like when [MW] was changing her nappy she kept saying, "aw mum, my belly "" 2. DM described the burns as "bubbles on her feet ... like from the bath, hot water". DM recalled it occurring not long before Easter, maybe in March and recalled that the applicant put the deceased in the bath but "didn't realise how hot the water was until he put his elbow in and its whip, whipped her out of the bath and held her, and yeah, but she didn't feel it, like she wasn't crying, plus I'm a real light sleeper I would have heard it". 3. DM was asked for further details and clarification about what happened on the evening of Easter Sunday, 20 April 2014. Further evidence that he gave included that he sat in the passenger seat when he and MW went to KFC. When he and MW returned home, the applicant was wearing footy shorts and no shirt and DM saw him go over to the kitchen sink and wash his arm where he said the deceased "had spewed on him". "MW said "Oh what happened?" He goes [TM] just vomited everywhere". DM recalled the applicant saying the deceased was making "a weird noise like, she was like gagging, like trying to get more vomit out but she couldn't" and MW said she would check on her after dinner. 4. When MW went to check on the deceased, DM heard her cry out "Oh my God, [TL] we've got to go to the hospital". 5. DM described his own relationship with the deceased as "basically like a brother sort of thing" but that he never changed her nappies or bathed her or put her to bed, but he sometimes took her to the toilet as she was toilet trained and sometimes used the toilet if someone took her there. DM said he never saw MW and the applicant fight about parenting and noticed "[MW] she's not as strict as [TL]. [TL] was brought up like, really strict back when he was younger but [TL]'s like, strict on a few things, like [TM] not going in the kitchen and not all the time drinking soft drinks and [MW] just says, Yeah, O.K. here have it, if she cries". 6. DM said that the only time he ever went into the deceased's room was if MW asked him to put the deceased's washing in there. DM recalled on one occasion that he noticed bruises on the deceased's legs. MW told him they were from when "she went to Tabatinga with her nan" in April sometime. DM recalled the deceased started to bruise around Christmas 2013 in different places on her body "just her arms when she plays with other kids and that's basically all you see". 7. Towards the end of the recorded interview, DM was told that the deceased died from blunt force trauma. When asked if he knew how she could have received such an injury, DM said "Janie's birthday, my sister, they were jumping on the back trampoline and she got jumped on and she came inside". When asked why he thought the trampoline incident could have caused her death, DM responded "Well blunt, it could have been the heel of someone's foot and jumping on the trampoline can be pretty hard". DM said the deceased did not receive any medical attention after the trampoline incident. 8. In cross-examination, DM was asked why in his first interview he described the deceased as "perfect, fine and playing around on Easter Sunday" and in the second interview he described her as clingy. He agreed that he did not use the word "clingy" in the first interview and said it was "because I didn't really think. I wasn't really thinking". 9. Despite considerable differences between his evidence in the first interview when compared with that in the second interview, DM was insistent that his memory was better in the second interview. This was because he had had very little sleep the night before he gave his first interview. 10. AL was the sister of the applicant and the mother of DM. She gave evidence that the deceased would get bruises every time she fell over or bumped herself. 11. There was evidence from other relatives confirming that the deceased had burns on her leg. Ms Jackie Leipper was the partner of David W, who was the father of MW and grandfather of the deceased. On Easter Saturday, the deceased sat on her lap "because her feet were really sore because they were bandaged" (T504). 12. Ms April Sipple was the partner of MW's brother. She described the deceased as a "healthy little girl". At some point in April 2014, she became aware that the deceased was losing hair and bruising easily. The deceased used to stay at April's place once a week, generally on a Thursday night. She said "We all looked forward to it so I tried to keep that a continuous thing" (T515). Ms Sipple gave evidence that on one occasion, the deceased was staying overnight and she noticed a bruise on her right forearm. She asked the deceased what had happened and the deceased told her "TL hurt me"(T515). Ms Sipple asked her "when did he hurt you" and the deceased did not answer and went off and played. Lee-Ann W 1. Ms Lee-Ann W is the mother of MW and the grandmother of the deceased. Before MW and the applicant formed a relationship, MW and the deceased were living at her house. Ms Lee-Ann W observed that there was a good connection between MW and the deceased with MW always attending to her care and wellbeing, including bathing her, dressing her, and getting up during the night when necessary. Just before the Easter weekend in 2014, she was told by MW about an incident or mishap with the deceased in the bath and a few days later she saw burns on the deceased's bottom and bandages on her feet. She never saw her feet without the bandages after this point in time. 2. On an occasion before Easter 2014, Ms Lee-Ann W was looking after the deceased at her house and noted "we were playing ring-a-ring-a-rosy"(T524). Her evidence was as follows: Q: And did TM say something to you at that stage? A: She told me that she said "Grandma you've been naughty". Q: Speak up please? A: She said "That's it Grandma, you've been naughty. I am going to ring TL and he will punch you in the face like he does to me". Q: How many times did she say that? A: Just the once. 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. Q: Did you say something to MW about that when you saw her later that day? A: Yes. Q: Did you see [TL] at your house later that same day? A. Yes. Q: And did you hear MW tell TL what you had said to MW about that TM said to you? A: Yes. Q: And did he just laugh and say "As if"? A: That's right." (T523-524) 1. Lee-Ann W said the conversation was a couple of weeks before the deceased's death. On the evening of Easter Sunday when MW and the deceased came to visit her, she gave the deceased some Easter gifts which the deceased "was really excited" about. She noticed the deceased did not eat anything but "was playing and talking. She was fine". (T525.15-525.20). Dr Syed Ali Raza 1. Dr Syed Ali Raza was a general practitioner at the Tristar Medical Practice in Coffs Harbour who had been seeing the deceased since 2012 for a range of reasons. These included upper respiratory tract infections, which was not unusual for a child of her age, as well as a viral rash on her face, immunisations and infected sores from swimming in Coffs Creek. 2. On Monday 7 April, MW brought the deceased in to see Dr Raza due to a chesty cough and told him that the deceased was bruising easily. Dr Raza checked the deceased's abdomen, arms, legs and face and found no bruises. Dr Raza prescribed antibiotics for the deceased's upper respiratory tract infection but could not find any other sign of illness apart from the infection. 3. Dr Raza next saw the deceased on 14 April 2014 when she came to see him due to first degree "minor, superficial burns". MW told Dr Raza that two days prior "she was cleaning the washroom and there was a hot water tub and accidentally TM jumped into the hot water tub" (T134, 137). He made notes that the burns to her feet and buttocks were worse on the right side in that there was some redness around the burns but no inflammation, no fevers, no temperatures, no pressure symptoms on her foot and no blisters. Apart from the burns, Dr Raza did not "have any health concerns". Dr Raza took a swab from both ankles which results from pathology showed as a heavy growth of staph aureus or bacteria that was resistant to penicillin. Subsequently, Dr Raza prescribed the deceased antibiotics and told MW to bring her back each day for daily dressings to be attended to by Nurse Pescante. He made a note that it could take eight weeks for the burns to heal. 4. Dr Raza was shown photographs from Exhibit A and said that the injury to the inside of the right ankle, as shown in photograph 21, looked "more likely the same" as the burn he had tended to on 14 April, seven days before the photograph was taken. Dr Raza noted that the right ankle wound looked "slightly infected and slightly deep" and "slightly different" in photographs 22 and 23 compared to when he saw her ankle wound on 14 April 2014 and noted that her skin in the photographs was "blue, maybe because she is deceased". Dr Raza was not able to say whether the burns in the photographs from 21 April were third degree burns. When asked to look at photographs 29 and 30 of the deceased's buttocks, Dr Raza said the mark shown on her buttocks "looks like a bruise, you know, from object or something". 5. In cross-examination, Dr Raza recalled that when he examined the deceased's burns on 14 April, the skin was "sloughed at both feet" which is part of the healing process because a "first degree burn is just the superficial layer of skin, that gets sloughed off, the skin's removed from the underlying skin". Dr Raza confirmed his notes and said that there were no blisters, no inflammation, no infection, no pressure symptoms and no scar even though the swab came back with a bacterial staph aureus. Dr Raza was of the view that the burns had happened as a result of an accident and did not report the burns to DOCS. 6. In re-examination, Dr Raza was asked what he relied on to conclude that the burns were an accident and he replied "just on the mother's history". Nurse Driver 1. At 8.25pm on 20 April 2014, at Coffs Harbour hospital, Nurse Driver saw a male holding a child in his arms, who was pale and mottled. The child was unconscious and breathing very shallowly and her eyes were rolling back and her lips were blue. 2. The child was placed on a bed in the resuscitation room and Nurse Driver supported her airway as other staff arrived and took over. Nurse Driver asked MW what had happened and "she said that they sat down for dinner and the child was crying, so the male went to check on her in her bedroom. A while later he went to check on her again and she had vomited. He went in a while later to see if she was okay, and she didn't look right, so we brought her in" (T326-327). A short while later, Nurse Driver went back to the resuscitation room and at this stage the deceased was naked and Nurse Driver noticed her labia in the vaginal area and her abdomen area were both swollen and bruised (T 327). MW told the nurse that the deceased had been bruising easily and that it was her intention to have the family doctor investigate the bruising after he had treated the burns to the child's feet. 3. The following exchange took place between the witness and her Honour: "HER HONOUR Q: I'm sorry, could I just ask you, what was the nature of the bruising on the abdomen that you saw? A: It just appeared, just, well, because she was a motley colour it just appeared to be some little bruising somewhere, like, on her abdomen, but the actual effect of the motley colour appeared bruising to me, you know, at the time. Q: But what was the area of the bruising? Were there small bruises or was it a bruise over a large area? A: No, small bruises, little, tiny bruises. Q: And the extent of the bruising, in terms of the area of the abdomen? A: Just a few little areas, just a couple of little areas." (T327). Nurse Melanie Lane 1. Nurse Melanie Lane gave evidence. She undertook a visual assessment of the child and noted firstly that she had chunks of hair missing from both sides of her head, her face was pale and she had small coin or fingertip shaped bruises on the left side of her neck and the left side of her abdomen (T331). Nurse Lane also observed that she had a few smaller bruises on her legs and previously burst blisters on the heels of her feet which were now hard rough skin on the perimeter with new pink skin in the centre. The deceased was intubated and attached to a ventilator to deliver her breaths, as without assistance, she would not have been breathing. Dr Joseph Anthony Beaini 1. Dr Beaini was in the Intensive Care Unit at the Coffs Harbour Health Campus when he attended an ill child in the Emergency Department at 8.25pm on 20 April 2014. He observed that the child was flat, unresponsive, pale in colour and tachypnoeic, which meant she had a poor respiratory rate (T362). She was also tachycardic, which meant that she had a fast heart rate and hypotensive, which meant she had low blood pressure. Dr Beaini observed that the child had a bruise on the lower jaw, as well as bruising on the neck and multiple small bruises to the abdomen. She also had healing, crusted lesions to the heels and old lesions to her external genitalia. Dr Beaini explained that a lesion can be a burn, scab or graze. 2. Dr Beaini gave the following evidence: "Q: In your experience, can blunt force trauma bring about liver failure? A: As part of a multi organ failure, yes, but blunt trauma to the liver itself could as well, yes. Q: The child was anaemic as well, is that right? A: Yes. Q: And again, could you explain that expression for us in lay terms? A: Anaemia is basically a low haemoglobin, and we've got chronic, we've got acute sort of anaemias. One can be due to iron deficiency, or you've got your acute ones which are generally due to bleeding. Q: And would internal bleeding lead to anaemia? A: Absolutely" (T364.43-365.6) Dr Andrew Na 1. Dr Na gave evidence. He was a doctor in the Intensive Care Unit at the Coffs Harbour Health Campus. He observed bruise marks on both mandibles, the neck area and belly button of the deceased. He established that "bruising is from loss of blood into the skin, so that could happen in, for example, a blow to that area, blunt force". (T386) 2. The following exchange also took place: "Q: In relation to the multiple bruises that you saw and burns, did that raise anything in your mind as to the reason for the child's presentation? A: Yes it did. There are certain features that may raise the possibility of what we call a non-accidental injury, and certainly unexplained or funny patterns of bruising may trigger that red flag that, for example, the bruising that we saw in the patient. From recollection there were some prominent bruises on the left mandible, sort of neck area, of a round sort of pattern, so you immediately think, well, what could cause that? Could it be physically, you know, the mark of the fingers, for example, from grabbing. Its unusual for a child to run into an object that has multiple sort of finger like projections. The burns, you know, she had some signs of burns in both of her feet. She's two and half years old, and you'd think that, why would a child sustain that sort of injury? I mean, it could be just unlucky, that she was in a hot environment to cause burn, but usually at that age, you know, a child might have one foot and then get the painful response and step away but its unusual for both feet to be burnt. So those things just raises a red flag in a clinician's mind. Q: The red flag being? A: Is this effect of non-accidental injuries?" (T387) 1. Dr Na agreed in cross-examination that he could not be absolutely sure that the child's injury was a non-accidental injury. Nurse Margaret St Leone 1. Nurse St Leone was part of the team working with Dr Na. Nurse St Leone cut off the deceased's long sleeved pink top and removed her dark coloured track pants and saw bruising to the left side of the child's head and neck, down the left side of her torso and over her lower abdomen. She also noticed that the child was missing some hair at the front of her forehead. She removed her nappy and saw it had been soiled with faecal matter and also saw what appeared to be old burns on the vulval area and on both feet which she brought to the attention of Dr Na and other members of the resuscitation team. Dr Na undertook a focused ultrasound with sonography for trauma scan which revealed internal injuries. 2. Nurse St Leone spoke with MW and the applicant while other family members were present and MW told Nurse St Leone that the child had been playing happily that day, had seen her grandparents and eaten Easter eggs and dinner and gone to bed. The applicant told Nurse St Leone that he had heard the child crying three times and attended to her and that on the third time, the child had told him she felt sick, so he had taken her to the toilet to vomit and she went "all floppy". When Nurse St Leone asked if the child had fallen recently because of the bruises she had seen on her, the applicant said she had not fallen but that she had hit her head on the toilet bowl when she had vomited. MW told Nurse St Leone that she had recently taken her daughter to the doctor due to her bruising and hair loss and that blood tests were to be undertaken when the deceased had finished antibiotics for a sore throat. When Nurse St Leone asked about the burns to the child's feet, the applicant said that he had run a hot bath and the child had jumped in and slipped on her bottom. MW told Nurse St Leone that she had been taking the deceased to a doctor to dress the burns and when asked if the child had any other medical problems, MW told her that she had been treated for a fluid lump on her head in the past. Dr Pita Birch 1. Dr Birch, a paediatrician and neonatologist, was working in the emergency department at the Coffs Harbour Health Campus on 20 April 2014. 2. Dr Birch noticed burns on both feet and ankles of the child and healing sores on her groin region and upper thighs, as well as bruises on her neck and her abdomen. The child also had bruising on her arms and legs that was normal for a two year old to have, due to running or bumping into things. Dr Birch was not able to examine the child's back as she was too unwell to turn over. MW, who was extremely distressed, told Dr Birch that the child had been visiting her general practitioner on a regular basis for her burns and that she had told the GP that she was concerned about the child bruising so easily and about her hair falling out. Dr Birch asked MW if anything had happened to the child that day or if she witnessed any injury and she said she had not. 3. Dr Birch said: "The liver showed signs of damage and that can be either through some sort of condition or disease affecting the liver, and we speculated on the possibility of that, or in the absence of any disease, trauma to the liver would cause injury and damage to those cells ... In the absence of any sign of disease, then trauma would be the only other cause of this kind of level of damage to the liver" (T407-408.5). Dr Clement Tsang 1. Evidence was given by Dr Tsang who was working at the Coffs Harbour Hospital on 20 April 2014. The effect of his evidence was that when asked why he contacted Dr Soundappa, a physician at Westmead Children's Hospital, a second time he said it was because he had "never seen anything like this so I wanted to get his advice. Just looking at it, it would be impossible to do anything else. You wouldn't be able to re-sect anything because it's just not re-sectable. I spoke to him and get his advice and tell him exactly what I found and he told me the best thing to do was to try and pack everything, put pressure on it so its hopefully that would stop it from continue to bleed and try and transfer the patient off as soon as possible." (T442). 2. Dr Tsang gave this evidence: "Q: Does that involve, in layman's terms, using gauze or something similar? A: Yes, similar it's - if you're bleeding from here, you put a pack over it, it stops bleeding. In the abdomen because there's a big space you want to put enough pack in different quadrant to obtain enough pressure so to help put everything in place to stop the bleeding. Q: Did it stop the bleeding? A: I was able to pack it, but I don't think it would be possible due to amount of injury. HER HONOUR Q: Doctor, a moment ago when you said you'd never seen this before? A: Yes Q: Sorry, could I ask you had you never seen it whether it be in a child or an adult or had you never seen it in a child? A: I've never seen it in a child. Q: You've never seen it in a -- A: I've done a lot of trauma in a tertiary hospital with motor vehicle accidents and so forth, but most of it involves adult patients. CROWN PROSECUTOR Q: Motor vehicle accidents, how do you connect that with a mesentery problem? A: Mesentery injury, it requires a significant blunt force to the abdomen Typically in a motor vehicle accident its usually caused by the seatbelt Q: Could I ask you to assume a number of things as facts if you would and firstly this, that a forensic pathologist performed an autopsy on the child on 23 April 2014? A: Yep Q: And during the course of the autopsy the pathologist saw no sign either with the naked eye or microscopically to indicate that there any tumour or malignancy in the abdomen I'd ask you to accept as well that blood taken from the child was also tested and ruled out or negatived any suggestion of cancer? A: Yep. Q: And I'd also ask you to assume that at autopsy the child's bone marrow was examined as well? A: Yeah. Q: And again that excluded the suggestion of cancer? A: Yeah. Q: And by cancer I'm referring to leukaemia or any other form of cancer? A: Yeah. Q: Now, if you were to accept that that was the situation that the forensic pathologist found when he carried out the autopsy -- A: Yeah. Q: - where does that leave you in terms of how this particular injury could have been occasioned? A: It would be from trauma." (T442-444). 1. In cross-examination, Dr Tsang confirmed that he saw three or four large lymph nodes in the mesentery. He could not recall the exact length of the lymph nodes or whether they were exactly where the tear was or close to it. Dr Tsang said it was "unlikely" that the lymph nodes contributed to the tearing of the mesentery or made the mesentery more susceptible to tearing and bleeding in the presence of trauma. Dr Tsang could not say when the internal bleeding he observed would have started. 2. Dr Tsang confirmed that one of the blood vessels in a mesentery had been ruptured or torn and that he was unable to identify the source of the bleeding. His experience was that "90% of the time you would not find the source of the bleeding". More than one avulsion occurred during surgery and it was possible that one avulsion which clots, could cause more avulsions but '"there has to be - the trigger would be a trauma and when that trauma occur, how many vessels is injured or whether any bowel is perforated, I cant say as I am at the end of it". Dr Tsang confirmed that significant force would have to occur to cause an avulsion. 3. Dr Tsang agreed that during the autopsy carried out by the pathologist, Dr Cala, on 23 April 2014, a microscopic examination of sections of tissue taken from the liver showed "fresh haemorrhage without any inflammation ... the appearances are of a recent injury less than around six to eight hours old". The liver near the gall bladder and liver laceration right lobe showed "fresh haemorrhage near a large bile duct without any inflammation". 4. Dr Tsang explained some of the difficulties which confronted him: "Q: Is it possible that due to the absence of inflammation, and a very short period when that damage was sustained and death -- A: Yep. Q: - it is possible that those liver injuries were sustained during the emergency surgical procedure? A: It's possible, but because the view was very poor when the abdomen was open, most of the trauma that we see was in fact in the central abdomen, which is in the small bowel, and the roots of the mesentery. Now, because there's so much blood in the abdomen, it was difficult to get a clear view of whether there is any injury in the spleen or the liver, because you really have to put your hand right through and lift everything out to see that. But looking at the small bowel injury, at that time I don't think, due to the trauma of that, I don't think anything could've been done to save her and the only thing to do was to pack the liver, which was what we did. Now because of the amount of packs and everything that we put in, is possible to cause a subscapular haematoma, the subscapular haematoma means it's a haematoma it hasn't ruptured." (T540-541). Senior Constable Adam Goodhand and Senior Constable Bryan 1. Senior Constable Goodhand and Constable Bryan attended the Coffs Harbour Hospital at 10.30pm on Sunday evening, 20 April 2014. They spoke to the family in a waiting room and told them that they were there to "investigate what had occurred" but that "didn't necessarily mean that they had done anything wrong at that stage". 2. SC Goodhand spoke to MW and the applicant and was told by TL: "... TL said that while MW was away he went to put TM into bed and TM had been sick or vomited on his arm. He took TM into the toilet, where she was sick some more and then he has cleaned her up, taken her back to bed. He said that shortly after he left her in bed, shortly after he heard what sounded like she was struggling to breathe, so he's gone back in, and at that time he has noticed that her face had turned blue and she'd gone floppy. He called out to MW because by that stage she was at home, that's what he said and they both decided that they would take TM into the hospital." (T101-102). 1. SC Goodhand asked the applicant if there had been burn marks to the deceased's feet and the applicant responded "Yeah, that was when I was filling up the bath, she put her feet in or she got in without me looking". 2. In cross-examination, SC Goodhand agreed that he had not made notes at the time about what he had been told by MW or the applicant. SC Goodhand said that SC Bryan, however, had made "very accurate" contemporaneous notes and created the report when they returned to the police station at the end of their shift. Leading Senior Constable Christine Zecchinati 1. Evidence was given by Leading Senior Constable Christine Zecchinati. She attended the Coffs Harbour Health Campus with the other two constables. When LSC Zecchinati spoke with the applicant, he told her that MW and his nephew went to get some take away dinner. He remained at home. TM was in bed when he heard noises coming from TM's bedroom so he went and opened the bedroom door and she was standing there. She vomited on his arm so he had taken her to the bathroom to see if she needed to vomit any more. He cleaned her up and put her back in the bedroom. He heard TM again and it sounded like she was gasping for air, so he went to the bedroom. At this point, MW was at home now, from being out. He had gone and got TM. They brought her to the bathroom, noticed that her face was turning blue and her neck was flopping. He called out to MW and from there they had gone to the hospital (T110). Detective Senior Constable Damien Knowles 1. Detective Senior Constable Knowles was involved in collecting security camera footage from a number of locations on the route from MW's unit to the KFC outlet at Park Beach Plaza. The security cameras showed visual footage of the vehicle driven by MW to and from KFC. In the security camera footage, MW's vehicle was first seen at 7.35pm, heading towards the Plaza. The vehicle was last seen by the cameras at 7.47pm, leaving the Plaza vicinity. DSC Knowles said the trip from MW's unit to the camera would take one to two minutes in ordinary circumstances. To work out the entire trip time, two minutes would have to be added to each side of the security footage which gave a rough estimate of the time MW and DM left the house as 7.33pm and the time they returned as 7.49pm – a 14 minute trip in total. Sergeant Scott Andrew Gane 1. Sgt Scott Andrew Gane attended the Karuah Avenue unit as a crime scene on 24 April 2014. He measured and recorded the temperature of the water in the bathtub in the premises using two mercury thermometers in the water. He then emptied the bath water and repeated the process twice more. On the first reading, the temperature of the water in the bathtub was 52 degrees Celsius and in the second and third reading, the temperature of the water was 59 degrees Celsius. When asked why the temperature was lower in the first test, he responded that there was a possibility that there was still cold water in the lines leading up to the spout. POST MORTEM EVIDENCE Dr Allan Cala 1. On 23 April 2014, Dr Cala, a forensic pathologist, performed an autopsy on the body of the deceased. Dr Cala concluded that the direct cause of death was blunt force abdominal trauma. Dr Cala had available to him, information from a number of sources, including the medical records from the Coffs Harbour Health Campus and the Tristar Medical Practice where Dr Raza worked. His opinion as to the cause of death was based upon his experience and training, the information provided to him and what he observed at autopsy. 2. Dr Cala prepared a report which included the following comments section: "The case demonstrates complex injury patterns which are discussed in detail in this section. Firstly, external examination showed the presence of numerous bruises on the face, back and perineum, as well as other injuries. The bruises on the face, given their size and shape, are suspicious in nature. Their size, shape and position indicate they may have been caused by adult sized finger or thumb pressure. It is my view they have not been caused during 'normal childhood play' as they are over the jawline, which is not an area subject to innocent injury during play, are large in size and conspicuously near the external airway, that is the nose and the mouth. They are, in my opinion, suggestive of imposed external airway obstruction or closure, possibly made during an attempt to quieten the child by placing a hand over the child's mouth and nose. The bruising to the left side of the face was noticed by a treating doctor at the time of admission and therefore could not be medical in origin. Facial dissection, which is the internal examination of the facial structures, showed the presence of small bruises to the right side of the mouth on the lips. These may be either medical or nonmedical in origin. If non-medical they may be a subtle sign of external pressure to the mouth. Secondly, there was a large area of confluent mottled bruising on the front of the abdomen. The bruising was recent (within 6 to 12 hours of death based on microscopic appearances). The haemorrhage was not caused by the laparotomy incision during surgery, but rather was caused by some form of blunt force trauma applied to the front of the abdomen. Its blotchy nature and irregular shape was not suggestive of having been caused by a weapon, but possibly by multiple blows, such as punches or multiple forcible fingertips exerting very considerable pressure to the child's anterior abdominal wall, or front of the abdomen. Internal examination of the abdomen at autopsy confirmed the effects of blunt force trauma to the abdomen. This was the immediate cause of death. This trauma resulted in, amongst other injuries, laceration (tearing) of the small intestinal mesentery causing rapid and torrential haemorrhage into the abdominal cavity. This would have had the effect of causing acute hypovolaemic shock due to blood loss." (T676-677) 1. Dr Cala said that the descriptions of the child being limp or floppy, of the lips turning blue, of the face being very pale, and the eyes rolling back in the head were consistent with hypovolaemic blood loss. 2. Dr Cala continued reading to the court from the comments section of his report: "Other lacerations were also detected to the front of the liver and the soft tissue area at the back of the back of the abdomen or retro peritoneum. In this situation the child would have been immediately and severely incapacitated after the infliction of these injuries. She would not have appeared "normal", for any period of time after infliction, before deteriorating. If capable, she would have complained of abdominal pain." (T 677) 1. Dr Cala explained that by the words "if capable" he meant if the deceased was capable of speaking properly. He said that he assumed that, at two and a half, she was capable but that he did not know that. He continued reading: "She would have appeared pale, due to acute blood loss, possibly been sweaty and commenced to vomit. With further blood loss into the abdomen, this situation would have become rapidly worse, such that to any normal adult observer at the time, the child would have appeared very gravely ill. Immediate medical attention would have been indicated and sought. The injuries to the mesentery were so severe that the surgeons were able to visualise retro peritoneal blood vessels at laparotomy. ...(T677-678). Q: Yes please? A: So as I've said these vessels are normally concealed by the intact mesenteric fat which suspends the small intestine in the abdomen and is situated at the back of the abdomen. This 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. Clearly, the amount of force used to cause the injuries to the abdomen was very large. I completely reject any suggestion that these injuries could've been caused by accidental injury, for example, a fall down stairs or from a height. The narrative above indicates caregivers denied any recent accidental type trauma." (T678.33 – 678.44). 1. Dr Cala was shown a photograph of the deceased's bed and bedhead and the distance from the top of the mattress to the floor. In his opinion, a fall against the bedhead would not have caused the injuries he saw at autopsy. 2. In relation to the burns to the feet, Dr Cala commented: "The burns to the feet were all of approximately a similar age, that is, around seven to ten days old. They are not all superficial and one is particularly deep, that is, on the right foot on the outer aspect I do not accept that that they occurred as a result of accidentally being placed in exceptionally hot water." (T681) 1. Dr Cala was asked if he could express an opinion about what time the injuries were inflicted, given the death was certified at 2.15am on 21 April 2014. He answered "I would put it out to about eight to 10 hours". Dr Cala said that the earliest time might be around 4pm or 5pm that afternoon. The latest might have been within a very short period of when the deceased was found when the mother came home from KFC and found her to be gravely ill, a short period before that. 2. Dr Cala was shown the videos of the deceased recorded at around 4 or 5pm on 20 April. In his opinion, the deceased was absolutely not suffering any of those injuries at the time the videos were recorded. 3. In cross-examination, Dr Cala said that he did not believe that it was possible that the abdominal injuries could have resulted from a single blow against a hard surface, for example, an item of furniture or similar item. 4. Dr Cala agreed that the third degree burn on the outer aspect of the right foot would be consistent with the deceased getting into the bath with her right foot coming in contact with the hot water before any other part of her body did so. He said that he thought that the burn on the outer aspect of the right foot was caused by either being exposed to the water for a longer period of time or being exposed to water of a heightened temperature. He said that he was somewhat handicapped by the fact that there was a passage of about 10 days from the time of the burns to the time the deceased passed away and so he was not in a position to answer absolutely accurately the question of whether it was possible that the burns were occasioned to TM accidentally as opposed to deliberately. 5. In re-examination, Dr Cala was asked if the water in the bath was hot enough to have caused the sort of injury to the right foot, how likely it would have been that the deceased would have then put her left foot in and just sat down in the water. He answered "unlikely because her right foot has already been in the water for seconds ... and I would have thought she'd appreciate then how hot that water was". 6. Dr Cala clarified that his estimate was that the bruises on the face occurred about six to eight hours before death. Dr Christine Ann Norrie 1. Dr Norrie was asked by police to prepare an expert report in connection with injuries sustained by the deceased from burns to her feet and buttocks. 2. Dr Norrie examined photographs of the burns to the right and left feet, together with healed burns to the buttocks and healed lesions on the labia, labia majora and the genital region. She also considered various bruises and scars, crusted skin lesions on the back of the head, hair loss and fleas in the deceased's hair. From Dr Cala's autopsy report, Dr Norrie understood that the cause of death was severe haemorrhage from blunt force abdominal trauma causing firstly a large area of recent confluent mottled bruising on the front of the abdomen. The haemorrhage was severe and extended from the diaphragm underneath the ribs and lungs to the rectum (T607-608). Dr Norrie agreed with Dr Cala that the deceased's symptoms would have been immediate, although she might have been winded and unable to talk immediately. 3. Dr Norrie assessed the burns as first degree burns that were painful when touched on 14 April. She assessed them as superficial, except for an area on the outer right foot. The burn on the right foot was deeper and painless as it was a third degree burn. Dr Norrie understood from what Dr Raza had been told that "TM had accidentally jumped into hot water in the tub in the washroom two days earlier", i.e. 12 April 2014. MW was cleaning the washroom when this happened. 4. Dr Norrie contrasted that version of events with what the applicant had told the police in his statement of 21 April 2014 to the effect that he had put the deceased in the bath as a method of cleaning her from a soiled nappy. 5. As a result, Dr Norrie reported: " [The applicant] got it to a temperature he wanted it to be. TM was standing. He peeled off the nappy, held ... her bum under the running water and washed her with a face washer. She complained it was hot. He minimised her complaint, then sat her down. TM started to cry and again said it was hot. TL then felt the bath water, rather than the tap water, and it was hot. He took her out and observed that her feet were a bit red. After MW woke and sent him photos, he came home to take her for medical attention. He did not go into the doctor's surgery. He thought, F--- it. It wasn't really that bad, you know". TL indicated there was about 2 inches of water in the bath. TL denied TM had slipped on a substance at the bottom of the bath while trying to wash her and didn't know why MW thought that, although he'd told her what happened, as she was not there."(T611) 1. Dr Norrie reported that "it only takes about a second for a child to scald at 60 degrees Centigrade. There is immediate and severe pain. It would appear that TM was already in the bath when the hot water was added", noting the temperature was recorded by Sergeant Gane at 52 and 59 degrees Centigrade. Dr Norrie reported that the burns appeared in a "doughnut sparing pattern" which indicated that when TM was in the bath "she's sitting in the bath, she's got her bottom on the bath surface, she's got her legs up in the air, her knees are bent and her feet are in the water. So she's burnt her feet ... but she's had her soles on the bottom of the bath as well, so they haven't burnt" (T614). 2. Dr Norrie gave the following evidence on that issue: "Q: And do you – if a child was in hot water like that, how would you expect her to react? A: She'd scream blue murder. Q: And what would she do in terms of physical movements? What would she – A: She tries to get out. Q: And in terms of getting out, are you able to express an opinion as to whether or not there'd be any other types of marks or scald marks on the body? A: There's usually splash marks going up the legs because they stand up and make a lot of splashing as they get - try to get out of the bath. Q: And did you see any splash marks? A: No. No. I mean, there might have been one there but it looks more like a mosquito bite or flea bite." (T614-615) 1. Dr Norrie in her report described the burns as "mirror image injuries" in that the burns to the "right and left leg, the feet, were quite the same" as well as the burns to the perineum, buttocks and genitalia. Dr Norrie opined that "the burn pattern on her bottom is not from running water but being sat in a very hot bath first." (T621) 2. In relation to the skin fold sparing on the groin of the deceased, Dr Norrie said "this pattern is suspicious for abuse. It would appear she was forced to sit down." (T628). Dr Norrie reported that the feet burns in the photographs taken by MW were indicative of: "... forced immersion scald burns ... because they have very clear margins, with upper limits. No splash marks that might indicate that TM was trying to get out of the bath when it became hot. They're symmetrical, circumferential, they're right round and they're on both legs, both feet. So that's called the 'stocking distribution' ... One area on the right foot was third degree full thickness. When a child accidentally gets into a hot bath, they usually try to escape, resulting in burns with irregular border of non-uniform depth and splash marks, a lot of splash marks. They're rarely full thickness because the child climbs out of the bath really quickly. So, the photographs taken by her mother showed TM had well demarcated redness and a line of blistering on the outer aspect of the right hand, going around the heel." (T 628). 1. Dr Norrie thought that the combination of "the absence of splash marks, the uniform burn depth, the stocking distribution on both feet, the zebra stripes which is sparing of the flexural creases, secondary to the body being flexed" and the "donut hole sparing in the buttocks" indicated "non-accidental burning." (T629). 2. In cross-examination, Dr Norrie agreed that the burns to the deceased were first degree, superficial burns, except for one burn to the outer aspect of the right foot, which was a third degree burn consistent with the right foot being in hot water longer than the other parts of the body. Dr Norrie agreed that it was possible that the deceased hopped into the bath, putting her right foot into the hot water first without withdrawing it. Dr Norrie accepted that in the photographs taken by MW on the day of the burn, she could not see the sole, and so could not say with certainty whether it was red. 3. Dr Norrie agreed that she could not say with certainty that a whitey-yellow area on the right heel was a burn and agreed that it could be a callous from thickened skin. She did not agree that it was definitely scalding. Dr Norrie also agreed that it was possible that the absence of splash marks could be consistent with the deceased being removed from the bath very quickly. 4. Dr Norrie agreed with her Honour that following a hard impact to the body, the deceased's symptoms would have been immediate. The symptoms would have included "haemorrhaging ... incredible abdominal pain ... she might not have cried out immediately, because she was winded, to start off with, and then she would've cried. And then she starts to vomit ... after vomiting, she starts to become exsanguinated ... Loss of blood, yeah. So then she starts to faint." (T638-639). DEFENCE CASE 1. The defence case consisted of the evidence of the applicant and of Dr Johan Duflou, a specialist forensic pathologist. 2. The applicant took part in two recorded interviews. The first interview was conducted in the hours after the deceased's death on 21 April 2014 and became Exhibit N. 3. The applicant told police that on the night of Easter Sunday, the deceased ate some of her party pies for dinner but not all of them. After she ate, he and MW took her to bed. MW carried her in there and then passed her to him. He put her in bed and gave her a kiss. Various endearments were then exchanged and MW and the applicant left the bedroom. The applicant said that afterwards a decision was made between him and MW to get KFC for dinner. MW and DM left to go to the nearby KFC drive through. 4. The applicant then told police: "I stayed on the lounge and then I started watching, I think I was watching um, Two and a Half Men And then I heard, I heard [TM] cry and then I just kind of listened for a bit and then I heard her, her doorknob like, you know, if she was mucking around with it. So I've jumped up and went in to check on her and she was standing at the door like, when I've opened it she was standing there and she's kind of crying like she needed a spew. And I'm going, "Like do you need to spew?" And as I've picked her up she's just gone straight on me arm and there just like, a chunk of pie. Like, it wasn't like a liquidy spew. And then I was friggin' running her over to the toilet and hung her, her over the toilet. And she kind of didn't spew much else. She just kind of like, a bit of phlegm and all that kind of stuff come out. And I've, I've wiped her mouth and that I said, "Do you feel better, darling?" She said, 'Yes'. I said, "Do you want a drink?" She said, "No I want to go nye nye". I was like, OK friggin', I probably should have got her a drink but um, yeah, so I put her back in her bed. But as I was, when I laid her down, I, I was like, I said, "I love you". And she was kind of, she couldn't talk properly. She was kind of like, just going like, like that. And kind of, I was like, "Darling, are you O.K?" And she's like "Yeah, I'm OK. Are you OK?" And I said "Yeah". Like, you know but she's actually not talking clearly. Like, it was a bit like, she's half asleep or something. But she wasn't. And then um, I've gone out and when I looked back in to check her and that's when [MW] and that come. And I said, and she's like, "Oh, what's going on?" She's seen me coming from [TM]s room. I said, "Oh, she just spewed up I was just checking her 'cause she sounds weird..." 1. The rest of that first interview dealt with what happened after the applicant and MW went up to check on the deceased and what happened during the trip to hospital and at hospital. 2. The applicant told the police in the first interview that the deceased had been burned a week before her death on both feet "and bum". She had been seeing a doctor to get the burns dressed. When asked what happened, the applicant responded: "I've gone in just to check her and the room just stunk. And um, she had a bit of diarrhoea ... [He] thought ... I better quickly change her. I pick her up out of her room and put her, I've put her in the thing and I've like, I've undressed her and I left her, I left her nappy on. And then I've turned around and I've, I've cranked the hot water just to get it, to get that crap, I do it every time you know I just put the hot water on and then I adjust the cold in. Well, I turned around friggin' peeled the nappy off her and that. And then I've turned around and actually sat her oh, not sat her, stood her up in the bath. And she's telling me it's hot and I didn't click to it 'cause I'm feeling what's coming out of the tap. And I've already made that warm you know. And I was thinking darling, it's not hot. And she's like, "It's burning" ..." 1. In his second interview on 1 May 2014, the applicant was asked to clarify some of the evidence he gave in his previous recorded interview. Police asked him again to describe the deceased on the day of her death. In response, the applicant said that the deceased was sitting on MW and wanted MW to cuddle her the whole time. She seemed happy but she "wasn't like normal…just clinging to MW and just not wanting" anyone else. 2. The applicant told police that when MW and DM went to KFC, he heard the deceased crying first and then heard her doorknob turning. When he went to see her "she was crying and she was kind of standing there". She made a "gag reflex" sound like she wanted to vomit and then vomited on him. 3. The applicant said the second time he checked on her, five minutes after the first time, he was watching television and thought "I'm just gunna go and check her when I put her to bed she didn't seem that full on". When he went to the bedroom, she was making a "weeping noise ... like she had stuff in her throat and she was just trying to clear it or something". The applicant said that during the 15 minute period that MW and DM were at KFC, no-one else came to the unit. He confirmed that he left the main front door open and closed and locked the screen door, as was his usual practice. 4. When asked about the burns the deceased received when being bathed by him, the applicant responded "it was just like a serious honest mistake, like I had, I had checked the temperature of the water coming out of the tap, just not what was actually in the bottom. You know, it was just a rush. I was about to get picked up for work". When asked what water he was checking, he said he checked the water coming out of the tap "'cause like I had the hot water going, I had hot water like just not on full bore but going on so I could get it hot while I took her nappy off ..." 5. At trial, the applicant was asked about the deceased's bruises and said that he and MW were not sure what was causing them but thought that they were caused by the deceased rolling and bumping into the bedrails on her bed. 6. When asked about the text message, referring to him hurting the deceased's neck, the applicant said that he did not know what it was in reference to and denied ever having hurt the deceased's neck. 7. In relation to what had happened to the deceased when she was burned by hot water, the applicant said: "When I've went in there I've smelt that TM had a dirty nappy. So I didn't want her to be laying in that for hours ... she was as awake as well by that. So I got her and I wanted to change her nappy, so we went into the bathroom ... I told TM to start getting undressed while I ran the bath ... when the hot water come through, I turned on the cold to adjust it to a warm temperature for her and as I was doing that TM, she'd gotten undressed and yeah, she hopped in the bath yeah." (T715) 1. He said the deceased half took her nappy off and pulled it off and put it on the floor. When she got into the bath she said ""It's hot, TL" ... as she's gone to sit down, I didn't really think much of it. TM said that it was a lot, that the water was hot when we had her in baths, and it really - anyway, I didn't think too much of it but at the same time of her sitting down is when I've picked her up and spun her around so her backside was facing the spout ..." The applicant said he had no knowledge of the deceased being burned until he received the text messages from MW about an hour later. 2. In relation to the evidence of April Sipple as to what she was told by the deceased that "TL hurt me", the applicant denied having any knowledge of any bruise and said that he never did anything to her which might have caused that bruise. 3. In relation to the evidence by Lee-Ann W that the deceased said that TL had punched her, the applicant responded: "Q: Do you recall who told you about that? A: I think it was said in a conversation between Lee-Ann, MW and myself. Q: And was it said in a serious way or how did it come across to you? A: It come - well, no, it wasn't in a serious way at all. They - I mean, they weren't too worried about it, so I think they just threw it off as just TM saying something. Q: And I mean did you ever do anything like that? A: Absolutely not. But I think the result, if I did punch TM in the head, there'd be a serious injury that-mm." (T721). 1. The applicant said that in the period leading up to Easter 2014, the deceased "wasn't her usual self" and was clinging to her mother a lot. She was also vomiting a lot, probably as frequently as after every meal. 2. The applicant said that on the evening of 20 April, after MW and the deceased had returned from MW's mother's house, the deceased had dinner and he and MW took her to bed. 3. The applicant said that he and MW then went outside to the back patio so that he could have a cigarette and they could discuss dinner arrangements. The applicant recalled that they were outside discussing dinner for seven minutes while DM was inside watching TV on the lounge and the deceased was asleep in her room. 4. When MW and DM departed to go to KFC, the applicant said that he went back to watching TV on the couch and about three minutes later, he heard the doorknob from TM's room. He got up and "noticed TM's door was unlatched but it was still closed". He opened the door and that was when he discovered TM standing. He asked her if she was okay and she did not raise her head to look at him so he moved closer and as he bent down to her level, he put his hand on her chest or her belly and asked if she was okay. That was when a chunk of vomit came up, or spit, and landed on his hand. The applicant said that he picked TM up and her bedroom was straight across from the toilet and he just walked straight into the toilet and hung her over it. She was making gagging noises and she did not "spew at all". When the applicant asked if she was okay, she answered him but her voice was husky. When he asked her if she wanted a drink, she said no she wanted to go back to bed. The applicant then picked her up and put her back in her bed and left the room. 5. In evidence, the applicant denied hurting the deceased at any time on 20 April 2014 and denied knowing who did. 6. When asked if anyone had an opportunity to harm the deceased, he said MW, DM and himself. He agreed that in intercepted telephone calls with members of his family, he had said that DM did not harm the deceased. 7. In cross-examination, the following was put to the applicant: "Q: And you told us yesterday that you had some names for TM. You told us about "baby" and "darling" and "TM". Did you have any other names for her? A. No not of that, no. Q: Did you call her a "spoilt brat"? A: Yes I have done yes. Q: And did you not say those words to her face from time to time? A: Yes I did on one occasion I think. Q: You called her a "spoilt brat" because you believed that she was getting away with more than what she was entitled to get away with, didn't you? A: In one incident yes. Q: And you believed, didn't you, that MW was a little bit more lenient than what you were towards her behaviour, didn't you. A. Yeah in different ways, yeah." (T753) 1. When cross-examined on the deceased's burns that occurred in the bath, the applicant said that the deceased was bent over his forearm with her bottom facing the faucet of the tap while he washed her with a face cloth (T753-754). He agreed that the deceased was 93cms in height and so she did not need to be sitting down and he could have washed her bottom without holding her. The applicant was shown photographs 76 and 78 of Exhibit A and denied that the vanity in the bedroom would have made it difficult for him to hold her under the tap. 2. The applicant denied in cross-examination that he had put a plug in the bath but was unable to explain why he told the police that there was about two inches of water in the bathtub (T755). 3. In cross-examination, the applicant was asked why he gave a far more detailed account of putting the deceased to bed on the night of her death in his recorded interview with the police on 21 April 2014 than when he gave evidence before the jury about putting her to bed (T759-760). The applicant agreed that his evidence to police was "a lot different" to what he told the jury during his evidence in chief (T760). 4. The applicant gave this evidence: "Q: Yeah. See what I suggest that you're doing in terms of evidence that you gave before the jury is to as it were plant a seed in their mind that somehow or other MW had an opportunity to assault the child, thereby shifting the blame from yourself to her? What do you say about that? A: That wasn't my intention. HER HONOUR: Q: Why is it that the account you gave yesterday is different from what you said to the police on 21 April? A: Well, your Honour it's going to sound silly given the circumstances, but in the police interviews I guess the finer details on how everything happened, I don't know why I just – I just think I was telling an account of what happened on every other night. But having a lot of time to think about everything, and step by step, all the finer details, that is the way it happened that night as I remember it." (T760-761) 1. The applicant could not recall MW going into the deceased's bedroom before or after going to KFC after he and MW had put the deceased to bed. 2. The following was put to the applicant in cross-examination: "Q: You effectively, were left alone with TM for something in the order of at least 15 minutes, weren't you? A. I'd say, I think about, yeah, 15 at the most. Q: And it was in that time that you assaulted her, causing the injuries that she suffered? A: No. Q: For some reason, best known to yourself, that's what you did? A: No." (T763) 1. The applicant agreed that he went into the deceased's room twice while MW and DM were at KFC and that on the second time MW and DM saw him leaving her room as they arrived back (T764). The applicant was taken to a part of his police interview, where he told police that when he checked on the deceased for the second time, that she was making a panting noise that she had never made before and a weeping noise that sounded like she had something in her throat (T765-766). 2. In relation to that matter, the applicant gave evidence as follows under cross-examination: "Q: I mean she's making a panting noise that she's never done before. A: Mm. Q: Did that worry you? A. Yes. Q: Why did you close the door? A: I can't answer that. Q: Why didn't you pick her up and take her into the lounge room? A: I don't know. Q: You knew her mother was going to be back in a minute? A: Mm. Q: You caused these injuries didn't you? A: No I did not." (T765-766) 1. Dr Johan Duflou, a specialist forensic pathologist, provided an expert opinion in relation to the cause of death of the deceased. Dr Duflou opined that: "... the distribution of the healing burns as shown in the autopsy photographs and as described by Dr Cala did not provide conclusive evidence in relation to mechanism and it is possible for those burns to have been sustained by both accidental means or as a result of the toddler being forcefully held down in the bath ... Dr Norrie also indicates that the lack of splash marks is an added indication of the child being held down in the water. In my opinion, this may be the case, or the absence of splash marks could be an indication of a very brief period of immersion, knowing that a matter of seconds is all that is required to cause these injuries." (T776-777). 1. In his report, Dr Duflou was also of the opinion that it was: "... entirely possible for a single punch to have caused the laceration of the mesentery, small bowel and liver, as described and to have resulted in the internal bleeding and associated metabolic and haematological derangements, which ultimately resulted in death. It is, in my opinion, also entirely possible for the abdominal injuries to be the result of a significant blow against a surface or edge of some type, for example an item of furniture or similar. Such impact would unlikely be capable of being sustained during a simple fall onto a surface or edge. Depending on the nature of such a surface, if the force was relatively focused to a small area of the abdominal wall, injury to the mesentery and the bowel could occur with lesser force than if a broad and relatively flat object, such as a fist, caused those injuries." (T777). 1. Dr Duflou was cross-examined as to the causing of the burns to the deceased. "Q: Now, do you accept that if the water was hot enough to cause the scalding or the burning to the right foot, do you accept that she would have continued stepping into the bath, putting her left foot in? A: Difficult to say, I think its fair to say. But, general terms, if the water is very hot -- and the child did not slip and fall into the bath at that stage -- "Q: Yes? A: -- you would expect her to try and remove the foot again. Q: Exactly. And that would be the more likely scenario, would it not, than putting her foot in, its almost the situation, is it not, that she would have pulled her foot out again, isn't it? A: Well it obviously depends how fast all this happens. But you would hope that's the case, yes. Q: And it's suggested that not only did she put her left foot into the water, but some time shortly after that she sat down in this water? A: Yes. Q: That's not consistent with common sense, is it, really? A: Well, it's unlikely, I think, to occur as a result of purposely putting in one foot, then the other, then sitting. But if there is for example, slipping and falling into the bath at that stage, that wouldn't surprise me. Q: But she certainly wouldn't, in the normal course of events just sat herself down in the water? A: I wouldn't have expected so no. Q: In water so hot to have caused the lesions that were apparent upon her private parts when she was photographed, her body was photographed, 10 or 11 days later? A: Yes, whether those were purely burns or not, I don't know. But they may have been -- Q: Well, the evidence, you would have read, isn't it, that they were burns? A: Yes, yes, and I accept that, yes." (T 779) 1. Dr Duflou agreed that he said in his report that the deceased's injuries may have occurred by a fall or coming into contact with furniture. He could not say what item of furniture could cause such injuries on a child. He said he had not been shown any photographs of furniture that might have caused these injuries nor had he been told of any furniture that may have caused the injuries. Her Honour asked Dr Duflou whether he meant the deceased was "standing against an item of furniture and force is applied to the abdomen" or whether the deceased came "into contact against a surface or edge of some type, ie a piece of furniture?" (T780) Dr Duflou responded that: "... such impact would unlikely be capable of being sustained during a simple fall onto a surface or edge. So, for example, the child from a standing position falling onto a piece of furniture would be quite unlikely to cause an injury like that If there was some considerable associated force, then it becomes possible. I mean, in the end, I don't think its possible to differentiate these injuries by being caused by, let's say, for example, a punch or a forceful impact against a piece of furniture, but a simple fall I do not think would cause that." (T780). Extension of time 1. It was conceded by the applicant that the application for leave to appeal against conviction was filed well out of time. 2. Following the applicant's conviction, a Notice of Intention to Appeal was filed on 6 June 2017. It was extended until it expired on 30 August 2018. The Notice of Appeal was filed on 14 February 2020 and was out of time by 17 months. When these matters were put to senior counsel for the applicant he accepted that he was unable to give any adequate explanation for the delay, except to say that in part it was due to his own delay in preparing and finalising submissions. Counsel did note, however, that the applicant had sought to appeal immediately following conviction and that the delay was no fault of his. 3. The Crown did not object to leave being granted to extend time on the basis that the outcome of the appeal would also determine whether an extension of time in all the circumstances was warranted. THE APPEAL 1. It was agreed between the parties that Ground of Appeal 3 would be dealt with first. Ground of Appeal 3 was in the following terms: 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 1. 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. 2. 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). 3. 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. 4. It was common ground that the admission of this evidence was of considerable importance in the trial. 5. 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. 6. 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). 7. 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. 8. 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. 9. 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. 10. 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). 11. 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). 12. 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". 13. 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." 1. 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. 2. 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. 1. 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. 2. 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) 1. In due course, the trial proceeded on that basis and her Honour summed up to the jury to that effect. 2. 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". 3. 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." 4. 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) 1. 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. 2. 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. 3. 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. 1. 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. 1. 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." 1. 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. 2. 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. 1. 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." 1. 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." 1. 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". 1. 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. 2. 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. 3. 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]). 4. 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". 5. 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". 6. 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. 7. 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. 8. 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. 9. 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. 10. 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". 11. 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. Consideration 1. 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. ..." 1. 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. 2. 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. 3. 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. ..." 1. 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. 2. 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. 3. 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." 1. 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]. 2. 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. 3. 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. 4. 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." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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]. 8. 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." 1. 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." 1. 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. 2. 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. 3. 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). 4. 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." 1. 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)." 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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]). 8. 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. 9. 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. 10. 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. Ground 2 – The trial judge erred in admitting inadmissible hearsay evidence 1. 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. 2. 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." 1. 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. 2. 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." 1. 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) 1. 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) 1. 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. 2. 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. 3. Her Honour ruled against the applicant on that issue and allowed the Crown to adduce the evidence as tendency evidence. 4. 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. 5. 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"". 6. 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." 1. 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. 2. 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. 1. 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. 2. 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". 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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). Consideration 1. 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. 2. 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]). 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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." 1. 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. 2. 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]." 1. It follows that I would refuse leave to allow the applicant to rely upon r 4 and upon this ground of appeal. 2. 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. 3. 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. 4. Having refused leave to rely upon r 4, I would dismiss this ground of appeal. Ground 4 – The trial judge erred in admitting evidence of bruising observed on the child and evidence of other instances of harm to the child as tendency evidence 1. The three instances relied upon in this ground of appeal are the same three instances discussed in Ground of Appeal 2, i.e. the bruise on the arm noticed by Ms Sipple, the "punch" evidence given by Ms Lee-Ann W and the evidence of MW concerning the message she sent to the applicant on 10 April 2014. 2. The applicant submitted that in relation to the bruise, no evidence was given as to its size or colour and that Ms Sipple did not follow up the observation and ask about it. 3. The applicant submitted that the evidence was of little value because of the lack of detail surrounding it, there was evidence that TM bruised easily, there was evidence that on an earlier occasion TM had proved to be an unreliable witness and the evidence could not be tested in any way. 4. The applicant challenged the evidence of Ms Lee-Ann W on the basis that it had little probative value, TM was an unreliable witness, there was no evidence that TM knew what a punch was, there was no evidence of what TM in fact demonstrated when she "pretended to punch herself" and that the evidence was highly prejudicial. 5. The applicant submitted that it was for those reasons that her Honour erred in admitting those two pieces of evidence as tendency evidence. 6. The applicant was also critical of the approach followed by her Honour when carrying out the balancing exercise required by ss 97, 101 and 137 of the Act. The applicant submitted that for the reasons already given, the probative value of the evidence was low and there was a danger that the jury would misuse the evidence by giving it too much weight despite the lack of precision of the evidence. Consideration 1. Once those pieces of evidence were admitted, the representations by TM were available for use as tendency evidence. Their probative value was to be assessed by reference to what the evidence was capable of proving taking it at its highest. 2. While acknowledging that this was the proper test, the applicant's submissions were directed at the reliability of the evidence which had the effect of not assessing the evidence at its highest. 3. Similarly, while the applicant acknowledged that it was for this Court to determine whether the evidence admitted in support of an alleged tendency had significant probative value, the applicant's challenge was directed at the judge's reasons for admitting both pieces of evidence as tendency evidence. 4. As indicated above, it is necessary for this Court to assess the evidence in accordance with ss 97 and 101 of the Act. In doing so, it has to be accepted that the critical factor is whether the evidence of "punches" given by Ms Lee-Ann W and the evidence of bruises given by Ms Sipple had significant probative value. That assessment in effect raises the same matters which have been dealt with at some length in relation to Ground of Appeal 3, i.e. whether there is a need for a close similarity between the conduct alleged to disclose a tendency and the offence. In relation to that issue, I remain of the opinion that the combination of this evidence and the fact that there were only three persons who could have committed the offence gives to this evidence significant probative value. This is because it is capable of separating the applicant from the other two persons and identifies him as the perpetrator of the crime. The impugned evidence taken at its highest does indicate a tendency to act violently towards TM and if accepted by the jury, was capable of identifying the applicant as the person responsible for TM's death. 5. This ground of appeal has not been made out. 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 1. 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. 2. 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. 3. 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])). 4. 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]). 5. 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). 6. 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. 7. The applicant submitted that for this reason, the trial miscarried and the appeal should be allowed. Consideration 1. The trial judge was asked to give a warning pursuant to s 165 of the Evidence Act with respect to hearsay representations of TM. In response to that application, her Honour indicated that she would direct the jury that they would have to be satisfied beyond reasonable doubt that TM's representations were truthful and reliable. 2. The provisions of s 165 are relevantly as follows: "165 Unreliable evidence (1) This section applies to evidence of a kind that may be unreliable, including the following kinds of evidence – (a) evidence in relation to which Part 3.2 (hearsay evidence) or 3.4 (admissions) applies, ... (c) evidence the reliability of which may be affected by age, ill health (whether physical or mental), injury or the like, .... (2) If there is a jury and a party so requests, the judge is to – (a) warn the jury that the evidence may be unreliable, and (b) inform the jury of matters that may cause it to be unreliable, and (c) warn the jury of the need for caution in determining whether to accept the evidence and the weight to be given to it. (3) The judge need not comply with subsection (2) if there are good reasons for not doing so. (4) It is not necessary that a particular form of words be used in giving the warning or information. ..." 1. The trial judge gave the following direction which related to the four pieces of tendency evidence which included the representations of TM: "So just in relation to all these four pieces of evidence that fall into this category of what the law calls tendency evidence, before you could use the evidence in the way that I have explained you would have to be satisfied beyond reasonable doubt that the child's statements to others about the accused hurting her were truthful and reliable and that the scalding burns to TM were not consistent with accidental exposure to hot water. You would have to reject the accused's account of the circumstances giving rise to these injuries as a possible explanation for them. TM of course is not available to be questioned further about the complaints by her to her mother, her grandmother and Ms Sipple. She was a young child, just over two years old, and we know that she had previously confused smacking by her childcare worker of the worker's own child with a smacking of herself. So there had been an occasion when a complaint by her was found to be unreliable. I am not suggesting that young children are necessarily untruthful or unreliable. The law does not regard children of any age as a class of suspect witness. In this case it is the combination of TM's age and the confused account of the slapping by her childcare worker that may render the complaints by TM about the accused unreliable. You should take these matters into account and consider them carefully before you accept these complaints. As I have already said, you must be satisfied beyond reasonable doubt that the complaints were reliable and truthful before you could use them as demonstrating a tendency by the accused to inflict harm upon the child." (SU 28.9-29.8) "Before you can use the evidence of other assaults in the way the Crown asks you to use it you must make two findings beyond reasonable doubt. The first finding is that you must be satisfied beyond reasonable doubt that one or more of those assaults occurred. In making that finding, you do not consider each of them in isolation but you consider all of the evidence and ask yourselves whether you are satisfied that a particular assault relied upon actually took place. If you cannot find that any of these assaults have been proved by the Crown beyond reasonable doubt you must put aside any suggestions that the accused had a tendency to physically harm the child as alleged and decide the case solely on the rest of the evidence. If you are satisfied beyond reasonable doubt that one or more of those assaults occurred, then you go on to consider the second finding. You ask yourself whether from the act or acts that you have found proved you can infer or conclude beyond reasonable doubt that the accused had a tendency to physically assault the child as the Crown alleges. If you cannot draw that inference or conclusion beyond reasonable doubt, then again you must put aside any suggestion that the accused engaged in that type of conduct." (SU 30.1) 1. In the direction her Honour warned the jury that the evidence of TM might be unreliable, explained why that might be so and did more than merely warn them of the need for caution before those representations were accepted. Instead, her Honour directed the jury that they had to be satisfied beyond reasonable doubt of the truth and reliability of the representations before they could be used in support of the tendency relied upon by the Crown. To give a further direction restricted to hearsay would be quite otiose given the wide scope of the direction actually given. 2. TM's representations were not an indispensable intermediate link in the chain of reasoning. Therefore, a direction that the jury could not use them as a basis for inferring guilt unless they were proved beyond reasonable doubt was not necessary. The requirement to have been satisfied beyond reasonable doubt of their truth and reliability imposed significantly a more onerous obligation than an obligation to approach TM's representations with caution. 3. This ground alleges that the direction was not given. On the contrary, the record of the trial reveals that a more than adequate direction was given concerning the representations by TM. 4. It follows that this ground of appeal should be dismissed. Ground 1 – The trial miscarried 1. The applicant submitted that the trial miscarried and that the applicant did not receive a fair trial due to the wrongful admission of evidence and the use of that evidence by the prosecution as a result of rulings by the trial judge as set out in Grounds of Appeal 2-5. The proviso to s 6(1) of the Criminal Appeal Act 1. Even if the applicant had made out any of his grounds of appeal, the proviso to s 6(1) would apply. 2. 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])." 1. 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. 2. 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. 3. 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). 4. 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. 5. 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. 6. It follows that the evidence against the applicant was overwhelming and no miscarriage of justice was involved. Ground of Appeal 1 should be dismissed. 7. 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. 1. In relation to the application for leave to appeal against sentence, I agree with Bellew J and the orders proposed by him. 2. 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. Application for leave to appeal against conviction Ground 3: alleged inadmissibility of tendency evidence 1. 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. 2. 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." 1. 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. 2. 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. 3. 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. 4. 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. Ground 2: alleged error in admitting hearsay evidence 1. It was common ground that the applicant's trial counsel had not objected to the evidence which was the subject of ground 2 except on the basis of s 137 of the Evidence Act. Accordingly, leave under rule 4 of the Criminal Appeal Rules (NSW) is required to raise the ground that the evidence was inadmissible under s 65 of the Evidence Act. The relevant part of s 65 of the Evidence Act relied on by the Crown was that the representation was made "in circumstances that make it highly probable that the representation is reliable": s 65(2)(c). 2. In my view it would have been open to the trial judge (had she been asked to do so) to rule that the representations made by the deceased to Ms Sipple and MW (both of whom were cross-examined, although not about the representations) were made in circumstances that made it highly probable that the representation was reliable. Each statement was made by the deceased to a trusted carer. Even were leave to be granted, the ground has not been made out. I agree with the reasons of the Chief Judge that leave to rely on rule 4 of the Criminal Appeal Rules ought be refused in respect of this ground. Ground 4: alleged error in admitting evidence of bruising and other harm as tendency evidence 1. The hearsay evidence tended to show that the applicant inflicted bruises on the deceased by punching or hitting her. For the reasons given with respect to ground 3 above, this evidence, too, had substantial probative value because it tended to show, as with the evidence that the applicant had put the deceased in a bath that was too hot which resulted in burns to her feet, that the applicant had a tendency to deliberately inflict physical harm on the deceased. Ground 1: allegation that the trial miscarried 1. As this ground relies on grounds 2-4, it is not necessary to address it separately. Ground 5: alleged error in not giving a direction under s 165 of the Evidence Act in relation to the deceased's hearsay statements 1. It is plain from the direction that the trial judge gave, which is reproduced in the Chief Judge's reasons, that her Honour directed the jury that they had to be satisfied beyond reasonable doubt that the deceased's complaints were reliable and truthful before they could use them as demonstrating a tendency by the applicant to inflict harm on the deceased. This direction went significantly beyond what was required by s 165 of the Evidence Act in that her Honour imposed a standard of proof in respect of the statements which was not required by s 165 and which was to the applicant's forensic advantage. Ground 5 has not been made out. Whether there has been a miscarriage of justice 1. As none of the grounds of appeal has been made out, it is not necessary to address the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW). However, I agree with the analysis of the Chief Judge as to the strength of the Crown case and the basis on which the prosecution eliminated every reasonable hypothesis that someone other than the applicant inflicted the blunt force trauma that killed the deceased. In the circumstances, the sequence of events left the applicant as the only person with the opportunity to inflict the fatal blow. The evidence compelled the conclusion that the applicant was guilty of the offence charged. Application for leave to appeal against sentence 1. 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. 2. 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. 3. 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. 4. BELLEW J: I agree with Hoeben CJ at CL and the orders that his Honour proposes in relation to the appeal against conviction. THE APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE Ground 1 - The sentencing judge erred in finding that the offence was above the middle of the range of objective criminality The findings of the sentencing judge 1. 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. 1. 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. 1. 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. 1. 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. 1. 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. Submissions of the applicant 1. 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. 2. 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. 1. 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. 2. 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. 3. 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. Submissions of the Crown 1. 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. 2. 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. 3. 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. CONSIDERATION 1. 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. 2. 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. 1. 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. 1. 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. 2. 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). 3. 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. Ground 2 – The sentence was manifestly excessive Submissions of the applicant 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. Submissions of the Crown 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. CONSIDERATION 1. 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. 2. 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. 1. 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. 1. 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. 1. 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. 2. 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. 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 1. 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. 1. 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. 2. 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). 1. 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. 1. 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." 1. 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. 2. 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. RE-SENTENCE 1. 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. 2. 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. 3. 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. 4. 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. 5. 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. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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). 11. 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. 12. 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]). 13. 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. 14. 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. 15. 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]). 16. 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]). 17. 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. 18. 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. 19. 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]). 20. 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. 21. 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]). 22. 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. 23. 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. 24. 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. 25. 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. 26. 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. ********** 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