TL v The King

High Court of Australia · 2022

TL v The King (2022) 275 CLR 83

A toddler is fatally injured while three people are at home, and the prosecution wants the jury to hear about earlier harm to her. Does that earlier harm have to look like the fatal injury before it can help identify who inflicted it?

What happened?

The appellant was convicted of murdering his two and a half year old stepdaughter, who died of blunt force trauma to the abdomen in the early hours of 21 April 2014 ([1], [5]). Only three people had the opportunity to inflict the fatal injury: the appellant, the child's mother and the appellant's 14 year old nephew ([5]). The prosecution case was that the injury was inflicted while the child was solely in the appellant's charge for about sixteen minutes, between about 7.33 pm and 7.49 pm, while the mother and nephew were out buying food ([6]). At trial the live issue was whether the prosecution had excluded the reasonable possibility that the mother or the nephew inflicted the injury ([4]).

The prosecution adduced two kinds of tendency evidence for the tendency to "deliberately inflict physical harm on the child" ([15]). The first was the burns evidence: that on 10 April 2014, ten days before the fatal injuries, the appellant placed the child in scalding water ([16]). The second was complaint evidence: three items in which the child, or her mother in a text message, attributed hurt to the appellant ([19]). The single ground in the High Court was that the evidence lacked significant probative value under s 97(1)(b) because it did not bear close similarity to the fatal injury ([2], [36]).

What did the Court decide?

The appeal was dismissed ([39]). Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ gave a single joint judgment and there were no separate reasons. The Court agreed with the Court of Criminal Appeal's result on the single ground argued. The reasons nonetheless record that the reformulation of the tendency without a fresh notice under s 97(1)(a) "should not be condoned" ([33]).

Proposition

What is the principle?

The joint judgment held that there is no general rule that demands close similarity between the conduct evidencing the tendency and the offence ([29]). The observation in Hughes v The Queen (2017) 263 CLR 338 to the contrary "should be understood as postulating a situation in which there is little or no other evidence of identity apart from the tendency evidence, and the identity of the perpetrator is "at large"" ([30]). Here there was important evidence of identity, and so it "could not be assumed" that close similarity was required ([30]).

The Court rejected the appellant's argument that the tendency had to be able to distinguish him from the other possible perpetrators, because that "tends to conflate probative value and proof" ([31]). The question is still the two-part one: how far the evidence supports the tendency, and how far the tendency makes the facts sought to be proved more likely ([31]). In concluding that the threshold was met the Court relied on the tendency's being directed at a single victim, on its being abnormal and so unlikely to be shared by others in the case of a very young and defenceless child, and on the close timing of about one month ([37]). It was not necessary for the prosecution to neutralise or disprove the same tendency in the other possible perpetrators ([37]). The Court said this was a case in which the threshold "was capable of being met without the close similarity insisted upon by the appellant" because there was strong evidence identifying the appellant that was independent of the tendency evidence ([38]).

The decision is bounded in two ways. First, the Court said that without the additional elements of violence and serious physical harm it was "doubtful" that the tendency evidence could have met the threshold, but the appellant did not complain of those elements being added ([37]). Second, the Court said that generality matters: other things being equal, a more generally expressed tendency is less likely to satisfy the threshold ([29]).

Why does this case matter?

Students who learn Hughes as a similarity case tend to start every identity problem by comparing the tendency evidence with the charged conduct. That is the usual error this case exposes: it asks a question about one piece of evidence in isolation, and leaves the marker's other facts about opportunity and the other suspects unused.

The case is also a warning about procedure that a student can miss because the appeal failed: the dismissal did not endorse the prosecution's notice practices, and a prosecutor who relies on the result should not infer that an imprecise notice is safe.

Exam and application relevance

When a problem asks whether tendency evidence to prove identity is admissible under the uniform evidence law, first list everything else in the facts that points to the accused or away from other suspects, then assess the tendency evidence against that background. Apply the two-part question from [31] rather than asking whether the evidence is the same in kind as the charged conduct. Treat similarity as relevant to probative value but not determinative of it ([29]).

Do not claim that this case makes similarity irrelevant, or that it licenses a loosely stated tendency; both points are limits stated in the Proposition. The decision is on s 97(1)(b) of the Evidence Act 1995 (NSW); if a problem arises under a provision that differs from it, say so and do not assume the reasoning carries across unchanged.

Check your understanding

1. On the Court's reading of Hughes at [30], in what situation does the close similarity observation apply? 2. What evidence of identity, apart from the burns and complaint evidence, did the Court rely on at [38]? 3. Why did the Court say that requiring the tendency to distinguish the appellant from the other possible perpetrators conflated probative value and proof? 4. Why is this case not authority that a tendency may be pleaded as generally as the prosecution wishes?