By Paul Gregoire and Ugur Nedim
A five justice bench of the High Court of Australia determined on 19 October that a NSW Supreme Court trial that saw the jury find a Coffs Harbour man guilty of the murder of his two-and-a-half-year-old stepdaughter that heavily relied on tendency evidence was correct in doing so.
The young girl died in the early hours of 21 April 2014 in a local hospital after the man referred to as TL and her mother rushed the child to hospital on the evening of the 20th, after she evidently became limp following multiple vomiting episodes.
However, doctors determined she’d died due to a “significant blunt force trauma to the abdomen”.
The only people present on the night the child seemingly developed an illness that, according to TL, was causing her to vomit, were him, his nephew and her mother. And the only one of them who’d been alone in the house with her at some point was TL, when the other two went to get takeout.
The death followed a number of other suspect incidents that had occurred over the previous month.
The most significant being when the girl had been severely burnt in the bathtub, which TL claimed happened as he’d been trying to wash her after she’d soiled herself.
Then there were the constant bruises the child was displaying, which her mother put down to her being prone to such markings. And there were also the odd remarks the child had made to others about TL having harmed her in some way. This included telling her grandmother he’d punched her.
The jury found TL guilty of murder, and as there was no direct evidence that he had committed the crime, the case was based upon the aforementioned tendency and hearsay evidence that NSW Supreme Court Justice Megan Latham had allowed to be admitted as evidence during the trial.
A question of tendency
Tendency evidence is past information about an accused that shows that they’ve acted in a certain manner in the past, which is then taken to imply that they’re more likely to have committed the crime that they’ve been charged with and are currently standing trial for.
Section 97 of the Evidence Act 1995 (NSW) outlines the tendency rule, which stipulates that this sort of evidence cannot be admitted unless the relevant party planning to do so gives written notice of its intention to submit it as evidence, and the court considers it having “significant probative value”.
While section 101 adds that tendency evidence relating to a defendant that’s adduced by the prosecution can’t “be used against the defendant unless the probative value of the evidence outweighs the danger of unfair prejudice to the defendant”.
Hearsay evidence is information provided by someone testifying in court that relies on their recalling that a third party had told them something about a matter and it’s cited in such a way as to prove a truth. For example, “Jack told me he saw Jill stole the apple, therefore Jill is the likely offender.”
Section 59 of the Evidence Act contains the hearsay rule, which stipulates that such facts that have been asserted via recollection of what a third party said are not admissible except under certain circumstances, including when the third party is unable to appear in court.
In the current case, the tendency evidence was the admission of the evidence relating to the burn incident involving TL and the deceased, which was allowed to be tendered by Justice Latham after the prosecution gave notice it intended to submit it as evidence.
While the hearsay evidence that Latham allowed to be admitted regarded both the deceased’s grandmother and the partner of the young girl’s uncle having recounted the child telling them that TL had committed violent acts towards her, as the deceased girl wasn’t able to testify to this herself.
Appealing its inclusion
TL then appealed both his conviction and his sentence to the NSW Court of Criminal Appeal (NSWCCA) in July 2020. In regard to challenging his conviction, he did so on five grounds, which prominently featured arguments against the admissibility of the tendency and hearsay evidence.
In objecting to the tendency evidence, TL’s legal team raised 2017’s Hughes versus The Queen, which is the authority on such evidence.
The Hughes ruling found that in cases where the identity of the offender is at issue, the probative value of tendency evidence depends upon its close similarity to the offence an accused is standing trial over.
And TL’s lawyers argued the bathtub incident and the blunt force trauma were hardly similar in nature.
In making his determination, then NSW Chief Judge at Common Law Clifton Hoeben recalled that TL had given several differing versions of how his stepdaughter got both her feet and behind severely burnt in the bathtub as she got in.
These revolved around her soiling her nappy, her getting into the bathtub herself and slipping over, and his holding her under the tap and then placing her in the water he was unaware was so hot. There was even a version where he was cleaning the bathtub and she just got in.
But evidence given by forensic physician Dr Christine Norrie found that the severity of the burns and the resulting marks reveal that she was seated as the scalding water filled the bath, and she must have been forced to remain in that position as she’d have been in severe pain.
So, from there, his Honour found that the “close similarity” requirement more so applies when tendency evidence is the sole link to a crime, whereas in this case, the bath incident occurred just before the killing, it involved both the victim and TL, who was also one of only three suspects.
The Chief Judge further ruled out the objection to the hearsay evidence the deceased had provided to her grandmother and her uncle’s partner, as under section 65(2)(c) of the Evidence Act the hearsay rule does not apply when the asserted fact was made in circumstances that make it highly probable.
And in terms of questioning the length of TL’s sentence, NSWCCA Justice Geoffrey Bellew gave reasons why the sentence of 36 years imprisonment that was handed down by Justice Latham, with a non-parole period of 27 years, was entirely appropriate.
High Court confirmation
TL then appealed his conviction to the High Court in August based on one ground questioning the admissibility of the tendency evidence. And Chief Justice Susan Kiefel, as well as Justices Stephen Gageler, Michelle Gordon, Simon Steward and Jacqueline Gleeson, all agreed to dismiss the appeal.
TL challenged the NSWCCA’s unanimous decision based on the ground that it had made an error when deliberating upon the authority in Hughes, which states that the probative value of tendency evidence must depend upon the close similarity of the evidence tendered and the crime in question.
However, the High Court outlined that there is no general rule that requires a close similarity between the tendency evidence and the offence, and there is no such provision in the legislation.
Indeed, the court found that the more important aspect to accepting tendency evidence is that it has probative value.
Their Honours agreed with the reasoning of the Chief Judge at Common Law in that the probative value in the tendency evidence involved in the bath incident was that it clearly showed that TL was more likely to have inflicted the blunt force trauma than the other two people present on the night.
“This is a case in which the threshold of significant probative value was capable of being met without the close similarity insisted upon by the appellant,” their Honours concluded. “Apart from the burns and complaint evidence, there was strong evidence identifying the appellant as the perpetrator.”
The justice then provided three reasons to support this. The first was that the evidence showed TL was only one of three who could have murdered the child. As well, he was the only one who had the opportunity to inflict the injuries when the other two were not around to hear anything.
And the third point was there was evidence that tended to exclude the other two from being the perpetrator, as the child’s mother was loving and attentive, while when it came to TL’s nephew, his uncle himself had ruled out the teenager of having been capable of committing such an act.
