TL v The Queen [2022] HCATrans 134 (17 August 2022)

Last Updated: 17 August 2022

[2022] HCATrans 134

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S61 of 2022

B e t w e e n -

TL

Appellant

and

THE QUEEN

Respondent

KIEFEL CJ
GAGELER J
GORDON J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 17 AUGUST 2022, AT 10.04 AM

Copyright in the High Court of Australia
MR J.L. GLISSAN, QC: If the Court pleases, I appear with my learned friend, MR T. LIU, for the appellant. (instructed by Jeffreys Lawyers)

MS S.C. DOWLING, SC: I appear with MS M.L. MILLWARD for the respondent, your Honours. (instructed by Director of Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Glissan.

MR GLISSAN: Your Honours, this matter raises an issue of the proper principle to be applied in relation to the admission of tendency evidence in circumstances where the issue to which that evidence is directed is the identity of the offender rather than to the establishment of the commission of the offence.

Our case is that in this present matter the admission of that evidence by the trial judge and its affirmation in the Court of Criminal Appeal meant that the accused had not had a fair trial according to law. The whole case in the court below at first instance was conducted on the basis of an issue of identity of the offender. There was never any significant issue joined between the parties as to whether or not the death of the child was caused by a blow – or blows – and so that principal issue that fell to be determined by the jury was one which occupied the whole of the attention in very real terms of the tendency evidence that was introduced, and, as well, the trial judge’s reasoning for admitting that tendency evidence and the manner in which her Honour in the first instance court charged the jury.

That being the case, a number of things, as we have set out in our outline of propositions – which your Honours will have received this morning – arise in a way that does not arise in the ordinary tendency case or in the kind of case that was involved in your Honours’ decision in Hughes. That is to say this: there is no dispute, as we have said, that the admissibility of tendency evidence, under section 97, is conditioned on the issue of or the existence of similarity, or close similarity, as a statutory requirement. We do not make any suggestion that the established law in relation to that is other than correct. However, the ultimate issue – to which the Court has said in Bauer that there can only be right answer – is whether the evidence has significant probative value and that is determined, as we have put it in our submissions, at paragraph 19, as dependant on what that evidence is adduced to establish.

As I have said, in this case, that evidence was adduced to establish the identity of the offender and nothing else. If I can briefly trouble your Honours to take you to the core appeal book, I can make that proposition good. At pages 46 to 48 of the core appeal book, your Honours will see her Honour’s charge to the jury. Pardon me for a moment. Her Honour said, at about line 30, or 32, on page 46 of the core appeal book:

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 . . . If you cannot draw that inference . . . beyond reasonable doubt then again you must put aside any suggestion that the accused engaged in that type of conduct.

Her Honour goes on to say:

If you do reach that conclusion, that is that the accused had such a tendency, then you may use it, together with the other evidence in the Crown case that is advanced in proof of the charge of murder. This evidence, the tendency evidence that I have referred to, must not be used in any other way. It would be completely wrong to reason that because the accused has committed one crime, or has been guilty of . . . misconduct at some other time . . . is generally a person of bad character –

She goes on to say at 47:

You cannot use it in any way prejudicial to the accused unless you accept the Crown’s argument that . . . the accused had a tendency to deliberately assault the child and therefore makes it more likely that the accused committed the offence –

And at 47 and 48, those last two paragraphs which I will not trouble your Honours to read. What that passage highlighted was her Honour’s reasoning in admitting the evidence, and the judgment in relation to that appears at 14 of the book:

The Crown presses the evidence –

her Honour says, if I can take your Honours to that.

GORDON J: Sorry, we are reading page 14?

MR GLISSAN: Page 14, at the foot, your Honour, about line 47:

The Crown presses the evidence on the basis that it directly impacts upon the issue to be decided by the jury, namely, whether it was the accused who was responsible for the infliction of blunt force trauma to the child . . . The issue arising for the purposes of determining the probative value of this evidence –

I am now over the page on 15:

whether or not in the context of the Crown case the probative value of the evidence to which I have referred outweighs any prejudicial effect.

There were two kinds of tendency evidence that would need to be considered by the Court here that were relied on. There was tendency evidence that was introduced pursuant to a tendency notice, expressed in general terms, that the accused had, on a prior occasion, put the child into water which was scalding hot and she sustained some minor burns and one third‑degree burn. There was some evidence from later occasions which was of a hearsay nature, which was admitted, even though there was no tendency notice issued in relation to it by her Honour on the same basis.

KIEFEL CJ: They are not the subject of the notice of appeal in this Court?

MR GLISSAN: Yes, your Honour.

KIEFEL CJ: Perhaps I am misreading it. I am just looking at page 218, notice of appeal.

MR GLISSAN: Yes, your Honour.

KIEFEL CJ: Unless I am misreading it, it seems to be limited to the close similarity point in relation to the tendency evidence you have just been discussing.

MR GLISSAN: The close similarity point applies to both admissions of tendency evidence. Her Honour admitted the two sets of evidence as tendency evidence on the same basis.

KIEFEL CJ: Yes.

MR GLISSAN: The close similarity point is directed primarily to the evidence of the scalding, certainly, but it also is directly raised in relation to the other matters, the hearsay material.

KIEFEL CJ: The statement?

MR GLISSAN: Yes.

KIEFEL CJ: I thought it was reliability that was the issue in relation to the statement.

MR GLISSAN: No, your Honour. We would say that so far as the ‑ ‑ ‑

KIEFEL CJ: It is a different section.

MR GLISSAN: I am sorry, your Honour?

KIEFEL CJ: It is a different section you are concerned with.

MR GLISSAN: Well, we would say, your Honour, no, that it directly arises because what is at issue in both of these passages is the – not the reliability of whether it was hearsay or not, but the fact that it was admitted to establish the identity of the offender.

KIEFEL CJ: Perhaps I should ask the respondent if they have understood the matter ‑ ‑ ‑

MR GLISSAN: Certainly, your Honour.

KIEFEL CJ: ‑ ‑ ‑ to be proceeding on the basis that both the tendency evidence in relation to burns and the statements are encompassed by the notice of appeal.

MS DOWLING: Thank you, your Honour. The respondent has been proceeding on the basis that the complaint is about the admissibility under 97(1) of both categories.

KIEFEL CJ: Both categories?

MS DOWLING: Yes.

KIEFEL CJ: Very well, we will proceed on that basis.

MR GLISSAN: Thank you, your Honour.

GAGELER J: Mr Glissan, does your argument distinguish between those two categories of evidence, or is it really the same argument in relation to both?

MR GLISSAN: It is really the same argument in relation to both, your Honour. The fact that it was admitted by her Honour in a different way really does not matter. The problem which we want to raise with your Honour’s Court is this: that permitting that evidence to be received as going to proof of the identity of the accused offended what this Court had said in Hughes, in the passage that we have set out in our written submissions.

GAGELER J: The argument applies equally to both categories?

MR GLISSAN: Yes. Equally to both.

GAGELER J: Thank you.

GORDON J: While you are interrupted, may I ask one question? I noticed in your outline of oral argument that you take as a second point the generalised nature of the tendency notice.

MR GLISSAN: So far as the first part of the evidence is concerned – and that is the scalding evidence – yes, the notice is expressed in very general terms.

GORDON J: I see. So, you will come to that, will you?

MR GLISSAN: We had intended to, your Honour.

GORDON J: Can I ask one other practical question? The tendency notice which we have just been discussing clearly was directed at burns initially, and you have taken us to the ruling by the trial judge in relation to the hearsay statements ‑ ‑ ‑

MR GLISSAN: I was going to now go back and take your Honours to my earlier ‑ ‑ ‑

GORDON J: No, my question is more specific, sorry. Is it to be that this Court is to test the hearsay statements against the tendency notice itself; in other words, is it the governing ‑ ‑ ‑ it is the reason why I ask you about the attack on the generalisation, does that argument apply to both categories?

MR GLISSAN: That is not an easy question to answer in a single word.

GORDON J: I see. If you wish to come to it at a different point, that is fine.

MR GLISSAN: No, I am happy to deal with your Honour’s question now. The question really raises the issue of how the tendency of evidence came to be introduced.

GORDON J: This is the second category?

MR GLISSAN: Yes. There was only one tendency notice. The second lot of evidence was introduced by the prosecution as – I am not entirely sure on what basis it was advanced, but it was certainly admitted by her Honour on the basis that it was a further example of tendency within the ‑ ‑ ‑

GORDON J: Is that right? I just want to check. I mean, I do not want to interrupt you, but if you go to the core appeal book at page 15, which you just took us to, her Honour records a submission made by the Crown at the foot of page 15 when her Honour says:

the bruising is sought to be explained by the Crown as consistent with the tendency already alleged against the accused to behave towards the child in an inappropriately physical and violent fashion.

MR GLISSAN: Yes, that is the same general tendency.

GORDON J: Well, I do not know that it is. We do not have the words “and violent” in the tendency notice, and so I just want to make sure that I understand that it is to be understood that we are addressing it by reference to the tendency notice.

MR GLISSAN: We had understood that that was the basis on which her Honour ‑ ‑ ‑

GORDON J: Thank you very much.

MR GLISSAN: ‑ ‑ ‑ approached it, and I think that is common ground between us, so my learned friend and I are agreed about that, so I think your Honour ‑ ‑ ‑

GORDON J: That is very helpful. Thank you.

MR GLISSAN: So, if I could then take your Honours briefly back – and your Honours have read it – the judgment of her Honour admitting the tendency‑coincidence evidence under the notice. It appears from page 11, from paragraph 26 onwards, where her Honour sets out section 98 of the Act – the qualifications. The effective paragraphs are 30 and 31. Your Honours will see, at paragraph 30, the last sentence:

The tendency/co‑incidence evidence tends towards proof of both the identity of the person who inflicted the abdominal injuries and that those injuries were not accidental.

So, the issue of identity was a principal – or the principal – reason for the reception of the tendency evidence. Once that is the case, we have – I do not want to take your Honours to the written submissions but in our reply submissions, at paragraphs 6 and 7, we draw the Court’s attention to the reason for the admission being identity. There are two other significant problems that arose from the reception of this tendency evidence in the trial.

We say, not only did it impermissibly lead to taking away an issue from the jury about identity in the circumstances in which it was directed, but it deprived the accused, in very real terms, of the opportunity of obtaining a conviction for the lesser offence of manslaughter – even if it was established that even if it was otherwise established, that he was found by the jury – and this is part of the argument that is advanced against us – even if he was otherwise found guilty of having committed the offence, the fact of the earlier tendency evidence having been introduced and the earlier matter, meant – and her Honour used this very much when the jury asked for redirections about manslaughter and, again, on sentence – as increasing the seriousness of the conduct of the accused and, thereby, deprived him of that opportunity. I will make that, perhaps, more clear as I go on.

GLEESON J: Mr Glissan, I am not sure that I understand that submission. I thought that, ultimately, the evidence – the finding of intentionality – necessarily arose from the nature of the blunt force trauma.

MR GLISSAN: That is not entirely right, your Honour, because when – and I will come, perhaps, at an appropriate time to deal with that – but when her Honour came to deal with the sentence matters, she was certainly affected, in the way she approached the sentence, by the fact that she found beyond reasonable doubt – for the purposes of sentencing – that these earlier events had occurred and that made the course of conduct of the accused more serious from the point of view of the imposition of sentence – bearing in mind that she gave a determinate sentence. I do not know whether that answers ‑ ‑ ‑

GAGELER J: Is it entirely correct to say that the sole issue was one of identity? There was also this issue of intent. Indeed, in paragraph 10 of your written submissions, you frame it more broadly than just identity.

MR GLISSAN: It is perhaps overstating it to say it was only identity, but it was certainly the principal or the primary reason for the reception of the evidence and it is the only basis on which that evidence, in my respectful submission, could have been admitted, and it was the basis on which her Honour says in her decision that informed that decision, and in the summing‑up she tells the jury on a number of occasions that the way they can use the tendency evidence is to determine whether or not the accused was the person who committed the offence. So is it convenient perhaps to take your Honours to that – just pardon me for a moment. So, to make that entirely clear, at pages 47 to 48 of the core book, your Honours will see – from the top of 47 her Honour in charging the jury expressed it this way:

That is not the purpose of the evidence being placed before you and you must not reason in that way.

I think I had started to take the Court to this before:

the Crown's argument that it shows that the accused had a tendency to deliberately assault the child and therefore makes it more likely that the accused committed the offence that has been charged against him and that it was not some other person.

At the foot of 47 she goes on to re‑state it in an equally clear way:

the accused deliberately hurt the child on occasions prior to 20 April and you are satisfied beyond reasonable doubt that the accused had a tendency to harm the child, then you may use the fact of that tendency in addition to the evidence of the events of 20 April in determining whether you are satisfied beyond reasonable doubt that the accused inflicted the fatal injuries on 20 April.

And at that earlier passage on page 47 where I read to your Honours that it:

makes it more likely that the accused committed the offence that has been charged against him and that it was not some other person.

So it is clear that this evidence was admitted for the purpose of, and used for the purpose of, establishing the identity of the accused as the person who committed the offence, and not some other person. So, our argument is that, that being the case, then the restriction that there needed to be close similarity that seems to be inherent in the majority judgment in Hughes is activated, and that this evidence should not have been admitted.

KIEFEL CJ: It is put against you that the extent to which the evidence needs to be of probative value will depend very much on how much other evidence there is in relation to identity so that the scope of how much evidential burden the evidence carries will alter according the other evidence. Hughes was really postulating there being little other evidence other than the tendency evidence.

MR GLISSAN: We would respectfully reject that proposition, your Honour, for this reason. The touchstone of tendency evidence – and I might come to some passages in Hughes in a moment to support this – the real underlying principle for tendency evidence is to always be assessed by the purpose for which it is being adduced.

If there was sufficient other evidence to establish identity without it then it is difficult to see how it could be properly received because the element of prejudice that is involved is quite significant. It is not for no reason that the Court has always looked at identity cases as being a separate genus, in a sense, in relation to the way tendency evidence can be used.

If I could take your Honours to the decision in Hughes it might be helpful at this point, because I think that makes fairly clear the propositions where ‑ ‑ ‑

KIEFEL CJ: Hughes was not itself an identity case, of course.

MR GLISSAN: I am sorry?

KIEFEL CJ: Hughes was not itself an identity case.

MR GLISSAN: No, no, indeed. And, indeed, that really is part of the important aspect of why what was said in Hughes is so informative from the point of view of tendency cases, because the Court there distinguished identity cases from what was being dealt with in Hughes. I do not think it is in any way an impediment to the success of our argument that Hughes was not an identity case. Indeed, we would put to the contrary that it enhances it.

The principle in the judgment in Hughes to which we really draw attention is this issue of where and when similarity needs to be a close similarity for the purposes of identifying an offender, and there are a number of cases that were examined by the Court in Hughes in relation to that, not least – if one goes to Hughes at paragraph 39 – and if I can take your Honours to that, it is 164 of the joint book volume 3 of authorities – the important passage on which we rely is at the top of page 164:

The probative value of tendency evidence will vary depending upon the issue that it is adduced to prove.

KIEFEL CJ: I am sorry, which paragraph are you reading?

MR GLISSAN: It is paragraph 39, it is at the top of page 164 of the book from which I am reading.

KIEFEL CJ: Page 355 of the report, is that right?

MR GLISSAN: It is 356, your Honour.

KIEFEL CJ: Thank you.

MR GLISSAN: The paragraph begins at 355 and goes on at 356, and I was looking at the top of 356:

The probative value of tendency evidence –

The important thing is that it is directed to the:

issue that it is adduced to prove . . . where it is adduced to prove the identity of the offender for a known offence –

which is this case:

the probative value of tendency evidence will almost certainly depend upon close similarity between the conduct evidencing the tendency and the offence.

So here you have, on the one hand – I would draw the factual distinction, the blow and the insertion, said to be deliberate, into the hot water. So, not closely similar, and I will make that proposition good by some examples that are given, particularly in Justice Gageler’s judgment in Hughes. While his Honour reached a different conclusion to the majority, his reasoning, in our respectful submission, is not very different from the reasoning of the majority in that case and it is reasonable that the Court would be assisted by looking at what his Honour said in that case. A little further down in paragraph 40, there is a reference to a case called Ford:

“the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”.

It goes on a little further on:

It is sufficient if the disputed evidence together with other evidence makes significantly more likely any facts making up the elements of the offence charged.

That directly raises the point your Honour raised with me, I think, of the interrelationship between the tendency evidence and the other evidence in the case. But, in this case, there were three possible offenders, all of whom – to a greater or lesser extent – had opportunity to commit the offence.

KIEFEL CJ: That is the key though, is it not? To a lesser extent than the appellant.

MR GLISSAN: No. With respect, that is a heresy. We would say – and I would have to convince your Honour of this – that the issue of whether or not there is opportunity is simply dichotomous. If there is opportunity, there is opportunity.

KIEFEL CJ: The timing must have something to do with it. The time available must have some relevance.

MR GLISSAN: Of course. It must have some relevance, but not to the issue ‑ ‑ ‑

KIEFEL CJ: The question of when it actually was that the expert evidence identifies that the blows were sustained. That can be pinpointed by the reference to the expert evidence. That could be relevant here as well as on the proviso.

MR GLISSAN: Perhaps. We would say no for two reasons. First, it does not go to this principal issue of whether or not this tendency evidence ought to have been admitted. It is a different issue altogether, and so it needs to be quarantined from it, in my submission. The second is: in relation to the proviso, that too is an answer which, while the Court might be satisfied that there was a strong prosecution case, it would be idle to suggest that this was not a strong prosecution case, and I certainly would not attempt to do so. The tendency evidence made it almost impossible for the accused to have a trial which gave opportunity for the alternative verdict of manslaughter or for an outright acquittal, because once that tendency evidence was introduced – if the jury accepted it – in the way her Honour left it ‑ ‑ ‑

KIEFEL CJ: That is just to say it is highly prejudicial.

MR GLISSAN: It does not answer the question that is postulated in my submission here, by the question that is set out in that passage at paragraph 39, that I have already taken the Court to, where it is adduced to prove identity of the offender – which is the case here – that probative value will depend on a close similarity. That is the nub of this case. The long and the short of it is that proposition that is encapsulated in paragraph 39 and the other paragraphs to which we have referred ‑ ‑ ‑

GLEESON J: Mr Glissan, why do you think that passage is qualified by the words “will almost certainly depend”?

MR GLISSAN: Yes, it is not an absolute. That is certainly the case. It is a very clear direction that, in circumstances where the principal issue is the identity of the person who committed the offence, that one of the touchstones for admission is going to be determining whether or not there is a sufficient degree of similarity in the earlier offence to justify the reception of the evidence, because it is a recognition – and I will come to that, if I may, dealing with the passages that I wanted to take your Honours to in Justice Gageler’s judgment.

STEWARD J: Just before you do that, can I ask, in paragraph 39, does not much turn upon how one defines the genus of similarity? So that if the genus is the likelihood of physical abuse to the child by the accused, then that may be sufficient, or you might say that the genus has to be more narrowly confined. So, how narrow must it be before it becomes, in your view, probative?

MR GLISSAN: I think the answer to that partly comes from the parts of Justice Gageler’s judgment that I want to take the Court to.

STEWARD J: All right. You go ahead and do that.

MR GLISSAN: Let me deal with it this way. Yes, but the bias here – as we have complained of it, and the Chief Justice has pointed out to me as is set out in the ground of appeal – is the broad general nature of the tendency notice itself because it does not answer the question of that degree of particularity that should properly be required.

In his Honour’s judgment in Hughes – if I can take your Honours to paragraph 88 of that case, since your Honours already have it open – his Honour encapsulates what we really want to put in this case here, I think. He says ‑ ‑ ‑

KIEFEL CJ: I am sorry, which paragraph?

MR GLISSAN: Paragraph 88. I am sorry to be talking about your Honour in the third person as if your Honour was not here. The passage in that judgment is:

The significance to be adjudged through the application of that standard is between the tendency evidence and the probability of the existence of a fact in issue.

This goes to the question your Honour asked me directly. The connection between the two lies in the particular tendency that is alleged. Here, there is a very significant difference in the two injuries to the child which were established in the evidence. Leaving aside the hearsay material and leaving aside the complaints that we have made about that in our written submissions, there is a difference between putting the child into hot water and pulling her out a short period – certainly, a third‑degree burn on the foot, but not ‑ ‑ ‑

STEWARD J: Accepting that for the moment, then what about the statements? Were they sufficiently particular, in your view? Would you object to them for other reasons; hearsay and so on?

MR GLISSAN: No. I would say that they suffer from the same defect, in real terms, because they are very, very much not particular statements.

STEWARD J: We just do not know. When she says, he hit me, how brutal or not, as the case may be.

MR GLISSAN: That is exactly right. Bearing in mind that if you take the contextual material surrounded – the one that is supposed to be said, I will punch you in the face, to the grandmother, the way TL does to me – she then immediately returns to play straight afterwards. So it is obviously not something that has operated on her mind other than to recall it as an event. The alleged tendency needs to have – as we have said in our oral propositions – that there need to be two parts of this going to a state of mind. One, it has to be deliberate.

GORDON J: That is in the tendency notice. It might be useful to actually go to the tendency notice and tell us what you do not like about it.

MR GLISSAN: Yes. The second is that the acts have to amount to harm.

GORDON J: No, that is not quite right. It says “inflict physical harm”.

MR GLISSAN: Yes.

GORDON J: “Physical harm on the child”.

MR GLISSAN: Yes, your Honour.

GORDON J: As I said to you when I looked at the tendency ruling, the Crown submission was put as both physical and violent harm. That is different from the tendency notice. So is your complaint about – you say it too general. How would you say it should have been crafted?

MR GLISSAN: It should have been crafted in a way that made clear that what was required was the deliberate infliction of serious harm or grievous harm on the child because third‑degree burn may or may not satisfy that criterion.

KIEFEL CJ: That would require on the evidence the child to be held there for five seconds when the child would probably be screaming.

MR GLISSAN: Yes, your Honour, that is right.

KIEFEL CJ: That would fall into the category of serious harm, would it not?

MR GLISSAN: The third‑degree burn would have to fall into the category of serious harm. It would be impossible to argue to the contrary of that proposition and I would not do so.

GORDON J: I do not understand that for the moment. I may be being pedantic, but the tendency notice does not say “serious harm”. It says “physical harm”.

MR GLISSAN: Yes.

GORDON J: It is broad.

MR GLISSAN: It is broad.

GORDON J: So we all know that the broader – cases have said this, including McPhillamy and others that have followed on from Hughes, that the broader you draft the tendency notice, the greater risk is that you end up having less probative value because you have collapsed 97, dealing with significant probative value, back in section 55 and relevance. On the converse, we all know that the narrower that you draft the notice, the more likely it is that evidence which is within the tendency notice – so the narrower you draft the tendency, the more likely it is that if you can identify acts or facts within it, it will arguably have a greater significant probative value. It is just the way the world works. So, when you say you complain about the generalisation of the notice, I, for my part, do not quite understand, given your answers to the Chief Justice, what is the complaint, because it does not say “serious”, it does not say “violent”; it says, “physical harm”. Does that matter, or does it not matter, on your case?

MR GLISSAN: In one sense, it does not matter on our case because the real gravamen of the complaint is the fact that these acts which were relied on are insufficiently similar to satisfy the requirement for tendency evidence to be admissible.

STEWARD J: Your point is that no tendency notice would ever have been good enough because of the disconnect between each category of evidence and its connection with identification of the accused as the offender?

MR GLISSAN: That is a very attractive proposition, your Honour, and to a degree that is right, but we had made a complaint about the tendency notice itself on the basis that it would encompass almost any act that ‑ ‑ ‑

GLEESON J: It cannot be right, Mr Glissan, because thankfully we live in a world where causing physical harm deliberately to a two‑year‑old child is a pretty rare event.

MR GLISSAN: Yes, that is true. One would like to think it was anyway, your Honour. Yes, that is so. It does not deprive the balance of the argument of its effect, which is this similarity point which is really the linchpin of the argument.

If I can then go back to where I was intending to go, which is these passages which we hope the Court would find helpful in Justice Gageler’s judgment in Hughes to explain the proposition that we put, at paragraph 88, which is where I had begun:

The connection between the two, however, lies in the particular tendency that is alleged. That is to say, whilst the focus is on the connection between the tendency evidence and the probability of the existence of the fact in issue, the particular tendency is the lens through which the focus occurs.

It is that, coupled with the similarity proposition, that informs this appeal. So, we say, yes, understand what your Honour says – that it is rare to deliberately inflict injury on a two‑year‑old child, mercifully – but, here, because the one event before is so completely conceptually different to the very violent blow that must have been involved that brought about the ultimate death of the child, that that dissimilarity deprived this evidence of substantial probative value, for the purposes of the section.

KIEFEL CJ: Mr Glissan, will you be pointing out, during the course of your argument, where the Court of Criminal Appeal went wrong ‑ ‑ ‑

MR GLISSAN: Yes.

KIEFEL CJ: ‑ ‑ ‑in relation to this?

MR GLISSAN: Yes, your Honour.

KIEFEL CJ: Did the Court of Criminal Appeal deal with the statements in relation to tendency? There was certainly a ground – ground 2 – which dealt with their inadmissibility, which was what I meant before when I said their reliability was in question. It was not immediately obvious to me that the Court of Criminal Appeal had dealt with the statements as tendency evidence, which might mean there was no ground.

MR GLISSAN: I am sorry?

KIEFEL CJ: Which might mean there is no ground.

MR GLISSAN: Yes. No, I understand what you are saying.

GORDON J: Possibly, core appeal book, 174 – is it not ground 4?

MR GLISSAN: Yes.

GORDON J: Possibly.

MR GLISSAN: And page 175, there is paragraph 276 of the judgment in the Court below.

KIEFEL CJ: That is the bruising evidence and evidence of other harm as distinct from the statements which are dealt with from paragraphs 229 and onwards, which are what I understand you to be referring to here.

MR GLISSAN: Yes, yes. We start a little bit, perhaps, earlier than that at 155 and 156 of the book – paragraphs 207 to 209 of the Criminal Appeal judgment is where our complaint about – to answer your Honour’s question directly – where we say the Court of Criminal Appeal went wrong.

KIEFEL CJ: But it is not dealing with the statements as tendency evidence. That is dealing with the bath evidence, the scalding.

MR GLISSAN: Yes, that is right. Yes. Your Honour asked me the question, where we ‑ ‑ ‑

KIEFEL CJ: Yes, I have asked you two questions, really.

MR GLISSAN: I can only deal with them one at a time, your Honour.

KIEFEL CJ: It is all right, I can remember the other one.

MR GLISSAN: Your Honour is far more astute than I am because I am not sure I can. But, 207, those passages ‑ ‑ ‑

KIEFEL CJ: That is where you say they went wrong.

MR GLISSAN: Yes.

KIEFEL CJ: That is in relation to the scalding evidence.

MR GLISSAN: That is in relation to the scalding evidence.

KIEFEL CJ: But where did their Honours deal with the statement which ‑ ‑ ‑

MR GLISSAN: Paragraph 215.

KIEFEL CJ: Paragraph 215.

MR GLISSAN: This is dealing with the identity issue, again, the:

fundamental importance . . . is that there were only three possible suspects . . . The tendency evidence identified the applicant as the offender as against the mother of the child . . . did not have to reveal close similarity –

They say:

Further . . . there was close similarity in that the applicant had previously harmed the same person.

KIEFEL CJ: Yes, I see. That is about it then.

MR GLISSAN: Yes.

KIEFEL CJ: Paragraph 215.

MR GLISSAN: Paragraph 215. At 276 – I think I have already referred your Honour to that but, as your Honour pointed out, that was, again, dealing with the evidence of the punches.

KIEFEL CJ: Yes, but we are not concerned with them here.

MR GLISSAN: No, no, that is right. It was ground 4, at page 174, that:

The trial judge erred in admitting evidence of bruising –

Your Honour will see that in the Court of Criminal Appeal’s decision, page 174 of the core book.

KIEFEL CJ: Yes, but that is not the statements.

MR GLISSAN: No, that is right.

GORDON J: I am sorry, I am lost.

MR GLISSAN: I am sorry, your Honour.

GORDON J: I thought they were the statements. Are they not those statements? They are the statements made by ‑ ‑ ‑

KIEFEL CJ: Statements of ‑ ‑ ‑

GORDON J: ‑ ‑ ‑ three individuals repeating statements made to them by the deceased child?

MR GLISSAN: Yes ‑ ‑ ‑

GORDON J: The three things that are set out and relied upon – you can describe them in different ways: they might be bruising, they might be a punch, but they are hearsay statements relied upon by the Crown as other tendency evidence.

MR GLISSAN: Yes.

GORDON J: Have I misunderstood?

MR GLISSAN: No, that is exactly right.

KIEFEL CJ: Except that ground 4 is not referring to the statements themselves about the bruising as tendency evidence. It is talking about the admission of evidence of bruising observed. That is what ground 4 deals with. That is the fact of bruising. Whereas what you are – I understood you were talking about on this appeal was the tendency of the statements made by the child.

MR GLISSAN: No, the tendency of the statements that were received – your Honour, there were statements made by the child which came in as hearsay evidence from the other persons ‑ ‑ ‑

KIEFEL CJ: Yes, yes.

MR GLISSAN: ‑ ‑ ‑ so I do not know that there is a distinction to be made between the two. They effectively relate ‑ ‑ ‑

KIEFEL CJ: Well, the grounds seem to think there were. Ground 4 is talking about the admission of:

evidence of bruising observed –

MR GLISSAN: But that evidence of bruising was the hearsay statements.

STEWARD J: Do you want to take the Court to 273:

Once those pieces of evidence were admitted, the representations by TM were available for use as tendency evidence.

MR GLISSAN: Yes.

KIEFEL CJ: So, they were used as the foundation for the statements tendency?

MR GLISSAN: Yes, they were used as the foundation for ‑ ‑ ‑

KIEFEL CJ: I follow now. Yes, thank you.

MR GLISSAN: Yes. Yes, thank you, your Honour. Could your Honour pardon me a moment. The proposition that we put is summarised in our original submissions at paragraph 13. I do not want to take your Honours to that, but your Honours have that.

So, your Honours, the argument is – if I could just remind your Honours of one further passage in Justice Gageler’s judgment at paragraph 71 of Hughes, and this really goes to how tendency reasoning should be used – and this is why, in the context of identity cases, there needs to be this careful distinction drawn and there needs to be the close similarity of the kind which we assert. It:

is not deductive logic –

but:

a form of inferential or inductive reasoning –

as his Honour said there. And there is:

a very real risk of attaching “too much importance” to the tendency evidence ‑ of giving tendency evidence “too much weight”.

So that here in cases of identity, as we have said, the issue that is always at the forefront is where there are – where more than one person who has an opportunity, or whether limited or general, and tendency evidence is introduced to try to establish the identity of the offender as opposed to another group of people in the same class, in the sense, those who had an opportunity to commit the offence, there needs to be very much more precision in the kind of evidence that is admitted, rather than evidence of a general tendency to behave because that can be misleading and it can be overweighted; too much importance can be given to it compared to the other evidence that surrounds the case. As your Honour said at paragraph 72:

the problem is one of cognitive bias –

That once that evidence is in, it becomes overused. That is a serious defect in the ‑ ‑ ‑

GAGELER J: Am I right in understanding that your complaint is not about the framing of the tendency here, it is about the capacity of this evidence to give rise to a tendency that would meet the requirement of section 97?

MR GLISSAN: To the extent that those things are different, yes, that is right. The framing is important, though, because the framing informs how the evidence is presented to the trial judge to make the assessment of whether or not it satisfies the two steps that are required by section 73. But once that issue is joined, then, yes, the second part of your Honour’s proposition is the real central part of the complaint, yes.

GAGELER J: Thank you.

MR GLISSAN: Your Honours, we have gone on to talk about the proper application of the principle in IMM, unless your Honours want me to deal with that specifically, we have dealt with that in detail in the written material. There needs to be clear evidence of intent or deliberateness, or of harm of the same kind as that which caused the death – in our submission – for that evidence to be receivable. That necessarily impacts on the circumstances where the identity of the offender is the principal matter at issue.

I think at subparagraph (b)of 4 in our outline, we refer to the punch – and I think your Honours have already asked me questions about that – there is insufficient evidence to show that there is any deliberate or violent element in that, or that there is any harm that is involved. That, then, leaves me with ‑ ‑ ‑

GLEESON J: The same would apply to the smack, the evidence of the smack.

MR GLISSAN: Of course, absolutely. It is simply a question of – and indeed that is part of the argument that we make. The punch, the smack, the superficial bruising, are all of the same kind. They do not give rise, and ought not to give rise to any conclusion about there being a tendency. Their reception, coupled with the other material ‑ ‑ ‑

GLEESON J: Or any conclusion about physical harm.

MR GLISSAN: Or any conclusion about physical harm, yes, your Honours. Correct me in that regard, and I am grateful for that. But so, that material ought not to have been received, and ought not to be placed before the jury, because the risk of its misuse was very great.

GAGELER J: Mr Glissan, there is a difference, sometimes – I think not always – in practice between tendency evidence and coincidence evidence. We are concerned only with tendency evidence here. I wonder if your submission is treating it as if it were coincidence evidence, or requiring tendency to have elements of coincidence about it.

MR GLISSAN: I think not. I think the submission is directly intended simply to deal with the proposition that because A occurred, that was evidence that the accused had a tendency to behave in a particular way which supported an inference, as your Honour said in that passage that I just read – to inflict harm – and because the two incidents, even though they were not very remote in time from each other, were significantly different in the way that the events occurred ‑ ‑ ‑

GORDON J: That is why, as you say, you are directed back to identify what is the actual tendency said to have been relied upon in order to frame the way in which you look at these particular pieces of evidence.

MR GLISSAN: Yes, your Honour, that is exactly right. So that, if there is that disconnect – to use the word that came from the bench a few moments ago – if there is that disconnect between the two, then that deprives the evidence of the kind of probative value that it should have in order to be received.

GAGELER J: You would say that it has to be evidence of a tendency to engage in a particular kind of physical harm, would you? I just wonder how much more particularity you are wanting here.

MR GLISSAN: Some of the examples are given – your Honour in your Honour’s judgment in Hughes referred to a decision of Justice Basten in a case called Saoud which gave a very clear example of that – it is at paragraph 92 of your Honour’s judgment – and I think it partly answers your Honour’s question because it is a subjective assessment in a real sense. In the language of Basten JA your Honour said:

in Saoud v The Queen for evidence of conduct to establish that a person had a tendency to act in a particular way or to have a particular state of mind “will almost inevitably require degrees of similarity, although the nature of the similarities will depend very much on the circumstances of the case”.

Here the answer to your Honour’s question is, yes, there needs to be a similarity - a very real degree of similarity, in our submission – of striking occasioning harm, as opposed to the example of immersion occasioning harm, because of the nature of the injury that is caused. Some of the other cases that your Honour went on to consider, El‑Haddad and the like and over the page there are a number of other cases, and I will come to one that Justice Nettle, when he was a judge of the Supreme Court of Victoria ,was involved in and which your Honour referred to called Rapson v The Queen and paragraph 100 of your Honour’s judgment gives an example of the kind of thing. There needs to be an almost ‑ ‑ ‑

GORDON J: One of the very good examples is one given, I think ,by Justice Leeming in a case called El‑Haddad v The Queen [2015] NSWCCA 10; (2015) 88 NSWLR 93 where his Honour talks about:

the specificity of the tendency directly informs the strength of the inferential mode of reasoning.

MR GLISSAN: The black Porsche example that his Honour gave, yes.

GORDON J: Yes. He said:

It is easy to see why. It is, for example, one thing to say that a man has a tendency to steal cars; that says something, but not very much –

But when it is:

a tendency to steal black European sports cars and then set them on fire, if the fact in issue is whether that man stole and burnt a black Porsche.

He is sort of ‑ ‑ ‑

MR GLISSAN: Yes, that is a stark example.

GORDON J: But what it does, it does, in answer to Justice Gageler’s question, recognise it depends upon what the facts and circumstances of the case are, as to the particularity required. It might be the kind of act done, it might be the effect of the act. So here, it might be physical and violent, it might be whether or not they are alone or in company, I mean, there can be a whole range of particulars that might be provided.

MR GLISSAN: That is true. And that degree of particularity would be of great assistance if that was the way that it had been introduced and argued. But, of course, all that was done here was that there was a general assertion – this goes back, I suppose, in a sense, to the defect in the notice because it does not provide that degree of particularity and the evidence was simply accepted on that basis – on the basis that it was a tendency to cause harm, whereas what was really required was a tendency to cause harm of a particular kind or in a particular way, we say.

GAGELER J: Well, it is easy to adapt Justice Leeming’s example to the present case. And you say, well, there is a very different scenario where you have a man who has a tendency to hurt children from where you have a man who has a tendency to hurt a particular child. That is this case. It does not have to go, surely, to the point of a tendency to hurt this particular child in a particular way.

MR GLISSAN: Well, we would say that there would need to be some degree of connection between the way in which the harm was inflicted and so, to that extent, I would have to disagree with the proposition your Honour puts, that what is required here is the physical infliction of harm by a blow.

GLEESON J: Why does our experience tell us that a person who is – what do we have that makes good the hypothesis that someone who is violent to small children can only be reliably seen as likely to have committed a particular offence if they had a tendency to act in a particular way? I mean violence is a form of behaviour that might depend on the particular opportunity as opposed to a sexual offence where someone might have a particular predilection.

MR GLISSAN: I would respectfully adopt that, your Honour, because here, there is a difference between inflicting harm by inserting the child in the hot water or putting her in there inadvertently and leaving her there for too long as your Honour the Chief Justice said, when she must have been screaming. Except that, that is different, though, in kind from the kind of physical violence that one associates with somebody who is violent to children, that is to say, the beating which is what the second act is redolent of.

KIEFEL CJ: But Mr Glissan, what you are really saying is that a person who has a tendency or disposition to be violent towards small children, if they choose different methods, one method different from another can never be used as tendency evidence. I just wonder whether the unspoken submission about the scalding incident is that you are really trying to say that it was perhaps unintentional?

MR GLISSAN: Much as I would like to say that, your Honour, I do not think that the ‑ ‑ ‑

KIEFEL CJ: That is the only thing that could really set it apart from the infliction of physical harm and pain.

MR GLISSAN: The way in which it was approached below, the way the evidence came out, does not permit me to make a suggestion, I do not think, that it was not deliberate, because I think that has to be resolved against me if I were to make that submission, and so it would be an inconsequential one.

STEWARD J: Mr Glissan, is this not really your case? Your case is that whoever inflicted the blows, the blows were so severe – sufficient to kill this child – that for each of the three people who may have done it, for them this was a wholly unprecedented act, and that nothing that had happened in the past could have foreshadowed, or made it more likely, that any one of them was the person who did that unspeakable thing.

MR GLISSAN: So – that the degree of violence ‑ ‑ ‑

STEWARD J: Yes, the degree of violence.

MR GLISSAN: ‑ ‑ ‑ was so extreme that it cannot be measured by looking at any of the earlier acts, because they are different in kind. Yes, that is quite right, your Honour. That is certainly how we put it. We had put it on the basis of similarity because that rubric seems to be the general way from the old common law days. Courts had looked at an assessment. Now, we say that in this case there is a sufficient degree of difference to warrant the Court concluding that the risk of admitting that evidence outweighed any probative value it might have had.

Once that happens, then the trial has miscarried. There is an issue that cannot be resolved; the accused has been deprived of all the other advantages they might have had in relation to obtaining a verdict of manslaughter or of being acquitted. That is sufficient to justify your Honour’s Court ordering a new trial. This is not a case where anything else can be contended for. Subject to anything else your Honours want to ask me, and relying on the written submissions which your Honours already have, effectively, those are my submissions.

KIEFEL CJ: Yes. Thank you, Mr Glissan. Ms Dowling, given that it is close to when the Court normally has its break, we might take the morning break now.

MS DOWLING: Thank you, your Honour.

KIEFEL CJ: The Court will adjourn for 15 minutes.

AT 11.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.26 AM:

KIEFEL CJ: Ms Dowling, before you proceed, I just have a question for Mr Glissan. Mr Glissan, the appellant and the respondent deal with the proviso in the written submissions and the Court of Criminal Appeal dealt with that issue, but it does not appear on the notice of appeal, and special leave was not sought in relation to it. Do you wish to regularise the matter to put it before the Court and rely on your written submissions?

MR GLISSAN: Yes, your Honour, if I could have leave to do that.

KIEFEL CJ: You would need special leave to appeal and then you would have to undertake to amend the notice of appeal to raise the matter.

MR GLISSAN: Yes, your Honour. If granted leave, we will undertake to amend.

KIEFEL CJ: Do you have any objection to that course, Ms Dowling?

MS DOWLING: No, thank you, your Honour.

KIEFEL CJ: It would seem only to regularise the position that the parties have undertaken, so special leave is granted, and if you could formulate the ground, and perhaps advise us this afternoon, Mr Glissan.

MR GLISSAN: If your Honour please.

KIEFEL CJ: Thank you. Yes, Ms Dowling.

MS DOWLING: Thank you, your Honour. Your Honours, the question of identity may arise in a criminal trial in various ways, as illustrated in the cases referred to by the parties today. So, too, the evidence by which the identity of an offender may be proved may take many different forms. The authorities distinguish between cases where the commission of the offence is in issue, as in Hughes, and those where the fact of the offence is not in dispute, but the issue is whether the accused committed the offence, which is this category of case.

The capacity of tendency evidence to contribute to proof of identity of an offender for a known offence depends not only on the tendency evidence itself but also on the facts and circumstances of the case and the extent to which other evidence adduced by the tendering party contributes to proof of the offender’s identity. It is those latter two matters in combination that define the inferential burden of the tendency evidence is then left to bear.

Where tendency evidence is – as probative of identity, the way in which it may be employed is dictated by the circumstances of the individual case. To elide, as the appellant seeks to do in this matter, all cases in which the identity of the perpetrator is in issue, fails to recognise that identity does arise in these different contexts and that the assessment of whether tendency evidence in a particular case has significant probative value will always depend on the context in which the question of identity arises.

For example, there is a significant difference between a prosecution of an accused where the identity of the perpetrator is at large and cases such as Ilievski and Bryant are examples of that, and a case such as this, where the class of possible perpetrators is limited to a small number of people, and I will return to develop this point more in a moment.

Different again is a case where there is direct evidence from the complainant or eyewitness identifying the accused as the person responsible for the offence and whether tendency is relied upon to support the challenged identification, and an example of that is referred to in our written submissions, that is R v W (John), an English case, [1998] 2 Cr App Rep 289.

Then, different again are identification cases involving the alleged commission of multiple offences by multiple accused as personnel may change between the offences, and an example of that in the bundle is the decision in Ilievski.

If I could take your Honours to the reasoning of the Court of Criminal Appeal at paragraph 198. This point is made by his Honour the Chief Judge at Common Law Justice Hoeben, and it is in the joint book of authorities at page 153. At this passage of the judgment, your Honours, Justice Hoeben referred to the notorious decisions of Straffen and Pfennig and observes that:

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.

This point is then developed further by his Honour. If your Honours turn to paragraph 203 of the CCA judgment – that is over the page, at appeal book, 154 – his Honour then brings that reasoning back to the terms of the section and notes that:

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.

Then he goes on to reiterate the point that his Honour made at 198.

Your Honours, this is also the point made in the paragraph of Hughes to which my learned friend took the Court; paragraph 40. I would just like to read out the sentence that my learned friend did not read out from that paragraph. It is in the joint book of authorities at 164. At paragraph 40, after the reference to Ford, the majority note that:

“the disputed evidence should make more likely, to a significant extent, the facts that make up the elements of the offence charged”. The only qualification to this is that it is not necessary that the disputed evidence has this effect by itself. It is sufficient if the disputed evidence together with other evidence makes significantly more likely –

The appellant, in this Court, contends that close similarity between tendency evidence and the charge fact is required in every case where such evidence is relied upon as probative of the identity of an offender for another offence, irrespective of the context in which the issue of identity arises. In effect, the appellant invites support to elevate the observation of the majority in Hughes, at 39, to a rule of universal application in which he calls identity cases. In our respectful submission, this is an approach that ignores the infinite number of ways in which the issue of identity may arise in any given case and that the assessment of probative value will be guided by the evidence in that particular case and its logical connection to the issue of identity.

The approach advanced by the appellant, in our submission, seeks, artificially, to classify tendency cases in which identity is an issue into a subset of tendency cases that have more restrictive and different rules for the assessment of probative value. This is an approach that is not supported either by the language of the statute or by logical considerations of relevance. My learned friend has disavowed this approach but, in my respectful submission, that is the gravamen of the submission he made this morning.

GAGELER J: So, what would you have us do with paragraph 39 of Hughes?

MS DOWLING: As your Honour Justice Gleeson noted, there is a clear exception that is referred to in paragraph 39. The “almost certainly” is the door that is opened there for this Court. Of course, Hughes itself was not an identity case – if I can use the term that I am so critical of.

GAGELER J: So, you start by saying it is dicta ‑ ‑ ‑

MS DOWLING: I do.

GAGELER J: ‑ ‑ ‑and, secondly, you say it has a built‑in qualification.

MS DOWLING: Yes, thank you.

GORDON J: There has been some academic criticism of the distinction between identity and commission cases. Is that what you are addressing as well?

MS DOWLING: Yes, it is. It is ‑ ‑ ‑

GORDON J: Sorry, in terms of the rule – the so‑called rule.

MS DOWLING: Thank you. Tendency evidence is, at its heart – as your Honours well know – simply another species or type of circumstantial evidence. Its probative value in the way it can be properly used depends on all of the circumstances led in the tendering party’s case. Using the umbrella term of identity cases hides the great difference in the fact in issue that may arise in any particular case. A comparison of the facts in Pfennig with, for example, the facts in Ilievski, is a really good example of how it is unhelpful, in our respectful submission, to use that blanket term as – the blanket term is not helpful to assist the Court in determining the correct approach to the assessment of probative value of tendency evidence in such a broad range of cases.

The core is really – as his Honour Justice Hoeben and her Honour Justice Adamson also noted in the CCA judgment, the proper analysis of the logical connection between the tendency evidence that sought to be adduced, and the fact in issue.

GLEESON J: In paragraph 41 of Hughes, there seems to be a suggestion that the distinction between tendency evidence going to identity and going to offence is relevant in that the fourth sentence:

Where the question is not one of the identity . . . it is important to consider both matters.

Do you suggest that those two questions should not be asked in a case of this kind?

MS DOWLING: In a case of this kind where, for example, the commission of the act – and the burns is a good example – is not in dispute at all, then the first question may be readily answered. I do not know that I would be so bold as to say the two questions should not be asked, but the difficulty that will face the Court will be different in a case where identity is an issue.

Your Honours, forgive my husky throat, it is nothing to be worried about – for your Honours, that is. Still on the judgment in Hughes, at 39, the majority noted there that:

The probative value of tendency evidence will vary depending upon the issue that is adduced to prove.

That is uncontroversial. That issue, in turn, is defined by the totality of the other evidence. It can be seen that the proposition that there will be a need for close similarity in proceedings where tendency evidence is adduced to prove identity, has ready application to proceedings where the only evidence of substance led against the offender is the tendency evidence, and an example of that is Ilievski. That is because in a case like that, the inferential burden of proving identity is borne by the tendency evidence alone. However, there are cases where the identity of an offender is in issue that are of quite a different character. That is the gravamen of our submission today.

There is a logical distinction between similar fact identification cases – and I am using that term to pick up the common law decisions referred to in the CCA decision. There is a logical distinction between similar fact identification cases where there is a connection between the accused and the commission of the offence, whether that is a temporal connection or a physical proximity – in this case, it is both: he was present at the scene and he had the much larger temporal opportunity – and cases where there is no connection between a particular accused and the commission of the offence.

As his Honour Justice Hoeben notes in the CCA judgment at paragraph 202, in the decision of O’Keefe, it was the absence of any evidence linking the accused to the scene in relation to the fourth victim in that case that meant that the evidence of tendency that was properly admitted in relation to the first three victims in that case – that was a:

tendency to sexually assault females in secluded locations –

was not, without more, capable of doing the job in relation to the fourth victim in that case. That was, it was not capable of identifying the accused from an unquantified pool of possible offenders.

GAGELER J: Ms Dowling, Mr Glissan took us to a passage in my judgment in Hughes. Can I just ask you about that? He took us to paragraph 88 which is the beginning of the discussion that goes for the next few paragraphs where, as I interpret what I was saying, it was that tendency probability reasoning proceeds in two stages; the evidence is used to prove a tendency and then the tendency is used to prove a fact in issue. Do you accept that analysis? If you do, what is the precise tendency that was sought to be proved in the present case? Is it simply as defined in the tendency notice or do you refine it in some way?

MS DOWLING: We do not seek to further refine the tendency. We accept the tendency as it is expressed in the notice, which is in the respondent’s book of further material at page 5, and that is the tendency to deliberately inflict physical harm on the victim. If I can just pick up a point that was raised by your Honour Justice Gageler and also by your Honour the Chief Justice. It is very significant that this is the same victim, that it is this particular child that is the subject of the tendency notice. It is not a tendency to inflict harm on children generally.

GORDON J: Can I just ask you about that without interrupting your answer to Justice Gageler? In your outline of oral argument at paragraph 9, you add in what I read as reason as a qualification – am I wrong to – by adding into the tendency when he was alone. That is not reflected in the tendency notice.

MS DOWLING: No, I apologise for that, your Honour. I am not seeking to further refine the tendency. It is another similarity between, in particular, the burn evidence. It is an example of the further similarity not identified in the notice, but I do not seek to further refine the tendency that was relied on.

GORDON J: Because it would not extend, would it, to the hearsay acts?

MS DOWLING: It is not apparent from the evidence led, in relation to those events, that he was alone.

GORDON J: And just one last question, then I will be quiet. In relation to the judge’s ruling on those last acts, the Crown submission is recorded as being “physical and violent”. Does that accurately record the Crown submission at the trial?

MS DOWLING: I will have to go back and check the transcript for that. My understanding was that that was a flourish added by the trial judge but if I can check that. Certainly, in the Court of Criminal Appeal and in this Court, it is the tendency that was identified in the notice that is relied upon.

Your Honour Justice Gageler, returning to the first part of your question as to the way in which tendency evidence operates as a matter of logic, the respondent does accept your Honour’s characterisation of it, with one caveat, which is that it has never been a requirement for the admissibility, or the admission, of tendency evidence that there be any evidence led about the prevalence of a particular tendency within the pool of possible offenders, whether that is the world at large or whether it is a smaller pool, and that is something that I am going to come to in my address in a moment.

There has never been – it has always been a question of commonsense and human experience, and that phrase is referred to in Hughes in the majority at, I think, 57. So, while it is probability reasoning, it is not constrained by – it does not rise as far as requiring the tendering party to lead evidence of the mathematical or statistical prevalence or probability of the event happening. So there is a certain looseness, as it were, at the edges of it in terms of the way it can be used, and certainly there has never been – that has never been a requirement either at common law or under the Evidence Act.

GAGELER J: So, as I understand it, what you are saying applied to the present case is that the tendency evidence, taken alone, establishes the tendency and then that the tendency, taken together with the proximity and other factors, is of significant probative value as to the identity of the perpetrator?

MS DOWLING: Yes, and that it serves to distinguish the offender from the other two possible perpetrators.

GAGELER J: Yes.

MS DOWLING: Because it is a circumstantial case, it is the whole of the circumstances considered together that feeds into that assessment of probative value.

GAGELER J: But you are stressing the importance of other evidence, and the other evidence is important in the present case at that second stage of establishing the link between the tendency and the existence of the fact in issue.

MS DOWLING: Yes, the discussion may be very different if the evidence of opportunity were different in this case, and if the opportunity were truly equal between all of the three possible perpetrators. However, that is not this case. As we have elaborated in our written submissions, the opportunity of the other two people we say, in fact, is non‑existent, and I make that submission in relation to the proviso.

If I can – picking up on the point of the significance of that limited opportunity on the part of the other possible perpetrators, here, because the nature and extent of the bulk of the evidence in the Crown case was largely undisputed, the fact in issue to be determined by the jury was capable of refinement here beyond simply proof of the identity of the offender for a known offence by reason of two aspects of the evidence.

They are, first, the very limited number of people in the pool of possible offenders – it is only three – and second, the much greater opportunity of the appellant to commit the offence when compared to that of MW and DM. So it is those two considerations that define the inferential burden to be carried by the tendency evidence in this case. In circumstances where the appellant’s case was that the Crown had not excluded the reasonable possibility that either MW or DM had inflicted the fatal injuries on the deceased, the high probative value of the tendency evidence lay in its capacity to distinguish the appellant from the other two possible perpetrators, and that point is succinctly made by her Honour Justice Adamson at paragraph 308 of the judgment and that is at the joint book of authorities at page 184.

The two paragraphs are paragraphs 307 and 308, your Honours. At the end of paragraph 308 her Honour rejects the suggestion that there is a requirement of similarity in a physical sense, for example, the use of a weapon or a particular type of injury to a particular part of the deceased’s body. That picks up, in my respectful submission, on the point that your Honour Justice Gageler made in relation to the identity of the victim in this case, which is a really significant point of similarity.

In broad terms, your Honours, the larger the pool of possible offenders, the heavier the burden carried by the tendency evidence, and if the fact in issue is simply the identity of the offender amongst a larger unknown number of people with the opportunity to commit the offence, then the inferential burden on the tendency evidence is going to be heavier, and to have a logical connection between the tendency evidence and the charged act in such a case it would generally be the case that close similarity is necessary, and I keep coming back to the example in my learned friend’s submissions of Ilievski. The larger the pool, the more difficult it will be for the tendency evidence to logically connect a particular accused to the offence, and in those cases, there will be a correlative increase in the need for stronger similarity between the tendency evidence and the charged act.

Where there is a small pool of possible perpetrators, as I said before, the tendency evidence carries a lesser inferential burden, and the purpose of the tendency evidence in such a case is also to be considered. So, in this case, the purpose for which the tendency evidence was adduced was three‑fold, and I set this out in our written submissions at paragraph 34. The first was as proof that, at the time of the charged offence, the appellant had a tendency to inflict physical harm on the child, which supported the conclusion that it was him (and not MW or DM) who inflicted the fatal injuries to the same child. Secondly, it was led at the point of admission as demonstrating the nature of the relationship that existed between the appellant and the victim at the time of her death in circumstances where the appellant was running a case that relied on the evidence of his “good” relationship with the victim.

Then, the third way in which it was thought to be relied upon, at the point of admission, was to rebut the possibility that the injuries to TM were occasioned accidentally. That is its use as relevant to the question of intent. This is reflected in her Honour Justice Latham’s reasons on the admission of the tendency evidence, at core appeal book, page 12, paragraph 30, where her Honour notes that:

The central matters for determination are the non accidental nature of the trauma –

and related to that:

The intention to cause really serious injury –

which:

only falls to be determined if the Crown establishes the accused as the perpetrator.

Then, her Honour notes that the tendency – and her Honour refers to coincidence evidence, but by the end of the trial that fallen away and the summing‑up clearly is confined only to tendency.

GAGELER J: You put that as three points, but it is really only two, is it not – identity and intention?

MS DOWLING: Yes.

GAGELER J: The second, really, just goes to intention, does it not?

MS DOWLING: But they are related, yes.

GAGELER J: Yes.

MS DOWLING: If I can draw your Honours’ attention to paragraph 31, where her Honour refers to another function of the tendency evidence here, which is rebuttal of the suggestion in the appellant’s case at trial, that the injuries could have been “accidentally inflicted” and the nature of the relationship between the appellant and the child.

A similar process of reasoning operates when the evidence of opportunity within that pool of three is considered. Where, within a group of three people, the evidence establishes that one person had a much greater opportunity than the other two, the inferential burden carried by the tendency evidence is further reduced. So, it becomes smaller. That process of reasoning – which, we say, pays due regard to the context in which the question of identity arose in this case – underpins the approach of the CCA to the assessment of the probative value of the tendency evidence led in the prosecution case.

If I could turn now to address your Honours on the description of the tendency – the complaint that the tendency identified was too general. As I have said before, the respondent accepts that where the pool of possible offenders is the world at large – potentially – or a large number of people, to have a logical connection to the fact in issue and, therefore, to be probative of the issue of identity, the tendency will likely need to be fairly narrowly cast. But, in a case like this where the pool is small and the opportunity evidence further distinguishes between the people in the pool, that tendency – a tendency that is more broadly expressed – may more easily satisfy the inferential burden.

In this context, the tendency relied upon the Crown, here, to deliberately inflict physical harm on TM, was not generalised and broadly formulated. Given its confined operation in this case, evidence of such a tendency was capable of satisfying the inferential burden – that is, of separating the appellant from the other two people in a logically significant way.

It is our submission that the appellant’s assessment of particularity and similarity in this case is unduly confined to consideration of the nature and degree of the injuries suffered. I remind – with respect – your Honours of the observation of your Honour Justice Gordon and Justice Nettle in IMM, at 178 – which is in the joint appeal book at 287 – and also the observations of your Honour Justice Gleeson this morning, that it is artificial to expect that the same, or even very similar behaviour, will be repeated on every occasion, even where it is with, or towards, the same complainant.

In any event, in our submission, your Honours, the charged offence and the incidents that are subject to the tendency evidence did share several similarities. They each involved the same victim, in the same house, in the same family context, and they occurred close in time to the charged act. Each event, taken at its highest, involved a deliberate physical assault committed by the appellant upon the victim. Both the bath scalding incident and the charged offence involved a significant and serious deliberate act of cruelty. As the Court observed in Bauer at 48, and that is at the joint book of authorities at page 317, your Honours, in the context of sexual offences:

a complainant’s evidence of an accused’s uncharged acts in relation –

to that complainant:

may be admissible as tendency evidence in proof of sexual offences which the accused is said to have committed against the complainant –

regardless of there having been some special or unusual feature. The Court in Bauer returns to this point later in the judgment at paragraph 62, where it is observed that in that case the very high probative value of the tendency evidence:

rested on the logic that, where a person is sexually attracted to another and has acted upon that attraction by engaging in sexual acts with him or her, the person is the more likely to ... engaging in further sexual acts with the other person as the opportunity presents.

Your Honours, in our submission, there is no logical basis to limit this reasoning to sexual offences, and the example given by his Honour Justice Nettle in Hughes at paragraph 155 is the illustration of that. I do not propose to take your Honours back to that paragraph, but at 155 in Hughes, Justice Nettle posited the example of a case that we say is on all fours with this, where the charged act involved the intentional infliction of bodily harm on a particular victim, and the tendency evidence comprises earlier acts of intentional inflection of bodily harm on the same victim.

Analogous to the reasoning described in Bauer at 62, we say the high probative value of the tendency evidence in this case rests upon the logic that where a person has a state of mind of hostility or animus towards another person – in this case, a very young child – and has, at a point in time, closely proximate to the act under consideration, acted on that hostility by deliberately inflicting physical harm upon the child, the person is more likely to continue to give effect to that hostility by again deliberately inflicting harm on that child. It is significant that it is the same victim.

In our submission, the principle explained in Bauer, which should not be confined to sexual cases, applies in relation to all four items of tendency evidence in this case, including the statements by the deceased about acts of violence that were committed towards her by the appellant.

On three separate occasions in the weeks leading up the infliction of the fatal blow or blows, the complainant told trusted members of her family and her carers that the appellant had inflicted physical harm on her. In each case, the victim’s description of the circumstances in which it was given was capable of demonstrating that he did so deliberately. As to the fourth occasion – that is the burns evidence – the evidence of the burns sustained by the victim was well capable of demonstrating that they were caused by the forcible immersion by the appellant in scalding water.

In these circumstances the statement of principle described in the decision of this Court in Bauer in 48 and 60 is apt. The tendency evidence did more than prove the disposition to commit the crimes of the kind in question. As a matter of common sense and human experience, evidence that the appellant had deliberately inflicted physical harm to the victim on four occasions in the period leading up to the charged offence suggests a degree of animus or hostility towards the victim which significantly – which he was prepared to act upon – and that in turn significantly effects the assessment of the probability that he and not MW or DM was responsible for the fatal injuries.

STEWARD J: Ms Dowling, is it an important element of your case that in considering the probative value of the statements, they have to be considered in conjunction with the probative value of the deliberate burning?

MS DOWLING: They – the short answer, with respect, is yes. Because the probative value of any particular item of tendency evidence in a circumstantial case always stands to be assessed by reference to the totality.

STEWARD J: So, you might accept it if the only tendency evidence had been the statements and nothing else – that might not have been sufficiently probative on the facts of this case?

MS DOWLING: That may be the case.

STEWARD J: Yes, I see.

MS DOWLING: As I understand my learned friend’s submissions, the appellant does not dispute that the evidence of the burns that he inflicted on the victim – taken at its highest – is strongly probative of the tendency. However, I do wish to, with respect, take issue with the description of the other three incidents as merely statements about acts. In my respectful submission, to describe them in that way is actually to obscure a proper assessment of the probative value of that evidence, which, of course, requires that it be taken at its highest.

I do wish to make the point, your Honours that the objection – before the Court of Criminal Appeal, the appellant contended that the statements – that the three statements were inadmissible hearsay, and that was ground 2 of the original appeal in the CCA. That is at core appeal book 99 – that sets out the grounds, your Honours. In the course of dealing with that objection, the Court noted:

that there was no objection based on the hearsay rule –

at trial. And that is in the CCA judgment at paragraph 252 at core appeal book at page 170. The appellant has not challenged that part of the CCA’s decision in this Court. So, there is no challenge to the conclusion of the CCA that the statements were admissible – notwithstanding that they were hearsay – the challenge in this Court is only to the admissibility of those statements as tendency evidence.

GAGELER J: There was no challenge based on section 101.

MS DOWLING: No. And, in my respectful submission, there were aspects of my learned friend’s submission this morning that did veer into the 101 prejudice territory, but I do, with respect, remind the Court that the ground of appeal deals only with section 97(1)(b).

To describe the three events as merely a statement about acts overlooks that they were not merely verbal representations. One statement was accompanied by physical evidence of bruising to the arm. One statement was accompanied by a demonstration by the deceased of the punch in the face, and it is only the comment about the injury to the neck that was evidence of a statement only.

At their highest, those statements are evidence that in the period leading up to the victim’s death the appellant hurt her on the arms so as to cause a bruise, hurt her neck again, and I point out that that statement was made by the victim to her mother on the same morning as she suffered the burns inflicted by the appellant, and also – taken at its highest – that the appellant had punched the deceased in the face.

The contention that these statements are not supportive of proof of a tendency to deliberately inflict physical harm on the deceased, in my respectful submission, should be rejected.

GLEESON J: I am sorry, Ms Dowling, was the statement prior to the burn injury?

MS DOWLING: It was after the burn injury.

GLEESON J: It was after the burn injury.

MS DOWLING: The sequence of events is that the appellant immersed the child in the scalding – in the boiling – the hot water early in the morning while MW was still asleep. He then put the child back to bed and when MW got up and changed the deceased’s nappy she saw the burns and at that time ‑ it is in the course of that morning and MW’s interaction with the appellant about the burns that she sent a text message referring to the fact that the deceased had told her that he hurt her neck again. So that is the sequence of the way those things unfolded.

Returning to your Honour Justice Steward’s question, as a species of circumstantial evidence the evidence has to be viewed holistically with all of the evidence in the tendering party’s case. When one examines the acts described by the victim together with one another and with the evidence that within that same confined period the appellant had forcibly immersed her in hot water causing first‑ and third‑degree burns to her buttocks and feet. The deliberateness of the physical harm inflicted by the appellant to the deceased on each occasion is manifest. It follows that the tendency evidence strongly supports proof of the asserted tendency. The appellant’s submission in his written submissions that:

a tendency to “deliberately inflict physical harm” could be seen as common to this type of offence –

in my respectful submission, ignores the significance of the fact that in each case the deceased identified the appellant as the person who had hurt her and, of course, in relation to the burns, that was admitted by the appellant. It also ignores the fact that not only is there no evidence to suggest that MW or DM had a tendency to inflict physical harm on the deceased, there was actually a strong body of evidence to suggest that they did not have such a tendency.

As I have already addressed to your Honour Justice Gageler, the admissibility of tendency evidence is not predicated on an ability to quantify mathematically either proof of the prevalence of a particular tendency within the community or within a pool of possible perpetrators or the statistical extent to which the existence of the tendency to act in a particular way makes it more likely that the holder of the tendency will then again act in accordance with that tendency.

I did refer your Honours, in passing, to the observation in Hughes, at 57 – that is, reference to the common experience – the common sense and experience of the jury. The repeated, deliberate infliction of physical harm on a particular identified two‑and‑a‑half year old is:

unusual, as a matter of ordinary human experience –

The appellant’s repeated submission that the evidence did not disprove the existence of the same, or similar, tendency on the part of MW and DM or, as it is put in the reply submissions:

the asserted tendency was so generalised that it could have plausibly existed amongst the other potential perpetrators.

Overlooks, with respect, two matters. First, the capacity of the tendency evidence to separate the appellant from MW or DM does not depend on whether the Crown has disproved the existence of a similar tendency on their part. To conclude that the tendency evidence would lack the capacity to separate the appellant from MW or DM in those circumstances would be to equate the absence of proof – that they had such a tendency – with the assumption that they did – and such reasoning is, clearly, fundamentally flawed.

Contrary to the basis upon which the appellant’s submissions appear to proceed, even if there were an absence of evidence as to whether the other two people had such a tendency, that absence would not give rise to or justify the assumption that they did. Secondly – and, perhaps, a more simple answer to the complaint levied against the Crown, here – the appellant fails to acknowledge the evidence at trial that MW and DM did not have a tendency to deliberately inflict physical harm on the deceased.

The kind and caring relationship between both MW and DM with the victim was a central pillar of the Crown’s circumstantial case. It is dealt with in the summing‑up at 21.6 and 22, at core appeal book, 37 to 38. This is in the context of the 16 matters of the circumstantial case. This is something that I will return very briefly to in relation to the proviso, if I may. The fifth point – this is at core appeal book, 37 – the fifth point is the genuine affection expressed by DM towards the deceased and the fact that:

the accused himself discounted DM as in any way responsible for the infliction –

of the blow that caused death. Over the page, at core appeal book, 38, the eighth point is that:

MW was an attentive and caring mother who regularly sought medical attention for TM when she was concerned for her welfare.

Excuse me, your Honours.

GAGELER J: So, this is the critical part of the other evidence that makes this tendency highly probative, in your submission. It is the absence of the same tendency on the part of the only other potential perpetrators in the mix.

MS DOWLING: This is part of it in this case, but we certainly do not advance the submission in this case that you would need evidence of an absence of tendency in every case for the evidence to have probative value. In fact, in this case, if there was not evidence of the caring relationship and the affection between the other two people, we would, nonetheless, maintain the position that the evidence of tendency would still have high probative value in its capacity to distinguish the appellant from the other two people.

My learned friend, in his outline of oral argument, refers to a statement by the accused in his interview, where he said that MW had smacked the child on the leg. If I could just point out that the actual evidence is in the respondent’s book of further materials at pages 124 and 125. It is, in my respectful submission pretty light on, to use the vernacular. The evidence reads at the bottom of 124 – this is an interview with the appellant with police, talking about the deceased:

Q271 O.K. Was she ever smacked at all?

1. Oh, [MW] might have.

Q272 O.K.

1. But ‑ ‑ ‑

Q273 Did you ever smack her?

1. No.

Over to the top of 125, your Honours:

Q274 Ever?

1. Never.

Q275 And did you see [MW] smack her ever?

1. Um, yeah, probably on the just on the leg though just to ‑ ‑ ‑

Q276 Yep.

1. That's all [MW] does is a smack on the leg. It’s, it’s actually not even worth, there’s no you know what I mean she just taps on her leg and it’s kind of like a oh, I’ve done me part thing you know.

Q277 And when was the last time you saw [MW] smack [the deceased]?

1. Oh, yeah, man, I couldn't even tell you. Not recently.

Q278 Ah hmm.

1. Not recent.

So that is the extent of the evidence identified by the appellant to suggest that MW had a tendency to inflict physical harm on the complainant.

GORDON J: Do you consider a smack would be part of tendency evidence?

MS DOWLING: Well, it was not relied upon by the appellant.

GORDON J: No, no. I am asking you, is it within your tendency notice in this case?

MS DOWLING: A smack?

GORDON J: Yes.

MS DOWLING: It would depend on what the evidence was. It certainly seems to be of a different quality to a pinch that causes a bruise, or a punch in the face, or harm to the neck.

GORDON J: Thank you.

MS DOWLING: And it does appear from that passage to have been in the context of disciplining the child, other than motivated by animus, as the tendency evidence appears to be. In relation to DM, the evidence, in my submission, is really quite compelling. I would like to take your Honours briefly to the telephone intercept material which is read out. It is in the respondent’s book of further materials at page 19 and 20.

KIEFEL CJ: I am sorry, at page?

MS DOWLING: Page 19 and 20. So this was evidence by a police officer, Detective Sergeant Van Schaik, who gave evidence that police had intercepted a number of telephone calls between the appellant and his mother and his sister. At line 35, the accused says to his mother:

‘Mate, I know within my heart DM wouldn’t do this. I know he wouldn’t have done it . . . When would he have had time to?’

So, this goes to the tendency and the opportunity, your Honours. At line 44, he is asked the question:

was DM on his own with her at all?

To which he answers:

“No, no. Me and – the only one left alone was me. They went to KFC” –

Over the page, your Honours – this is a conversation between the appellant and his sister, and at line 5 the sister asks:

“But DM wasn’t left alone with her in that time.” The accused said, “Yeah, I know” –

Then, at line 10, the accused said:

“No . . . he couldn’t have –

That is a reference to DM. He was then asked:

“He wasn’t left alone with her?” –

and he said:

“There’s no way. There’s no way” –

Then at line 20 – this is another phone call with the sister, your Honours – he says:

‘Mate, I know he fucking wouldn’t do it.’

The sister says:

‘How do you know?’

And he says:

‘I raised the kid from when he was fucking young. I know what he is capable of’ –

Clearly, evidence that he did not have the tendency, and evidence from the appellant himself. The evidence, in my submission, as it landed at trial was that the only person in the pool of possible potential perpetrators to have a tendency to inflict harm on the victim was the appellant, and there was evidence that the other two possible perpetrators did not have such a tendency.

In these circumstances, your Honour, the CCA, in our submission, was correct to hold that the tendency evidence had significant probative value because, first, the evidence supports the pleaded tendency, and second, the proof of the tendency does make it more likely that it was the appellant who inflicted the fatal blow or blows, and not MW or DM, and also that he did so deliberately. As I have been reminded, the question is: was it significantly more likely? Of course, we make the submission that it was.

In a case such as this, where there is substantial evidence connecting an accused with the commission of the offence and where the tendency evidence is used to identify the accused by distinguishing him within a very small pool of potential perpetrators, close similarity is not a precondition of the admissibility of the tendency evidence. The CCA correctly held that, in this case, the tendency evidence had significant probative value. For that reason, the appeal should be dismissed, in our respectful submission.

Your Honours, if I may turn briefly to the application of the proviso, we would say that even if this Court held that some or all of the tendency evidence was wrongly admitted, that error does not fall into the category of errors that are so fundamental that they exclude the operation of the proviso – as does appear to be the submission put against us – and that furthermore, in the unusual circumstances of this case – unusual because of the strength of the circumstantial evidence – the Court would be satisfied that no substantial miscarriage of justice had actually occurred. In our written submissions, we have explained why it is that the better approach is to eschew any reliance on the verdict returned by the jury, and I have set that out in our written submissions. We say that when one looks at the uncontested or unchallenged evidence in the case, your Honours would be satisfied of the guilt of the offender beyond reasonable doubt.

If I can take you very briefly through the respondent’s chronology, your Honours. It is not paginated in the further book of materials; it is separately filed. On the first page of the chronology, we set out the sequence of the tendency events, but relevantly, I just wish to address your Honours on the events of 20 April. Your Honours will see that it is set out there fairly clearly, and there really was not any dispute about the sequence of events at trial. The family of four came home at 5.00 pm, MW took the victim out again at 5.00 pm, but they came home together at 6.00 pm on the night.

Sometime after 6.00 pm the deceased had her dinner at the table. That was in the common area of the unit. Sometime between 6.00 pm and 7.33 pm she is put to bed. At that time, the evidence of the appellant is that she is talking and well. After putting the child to bed before 7.33 pm, MW and the appellant go outside to the back of the patio to discuss dinner and DM is in the lounge room watching TV. The victim is in her bedroom with the door shut.

The significance of this part of the evidence is that the window to the victim’s bedroom opened out onto the patio area and the window was open, and that is where the appellant and MW were talking about what to have for dinner. This is also the only period in time that DM had opportunity to go and inflict the blow that caused death. So he had been sitting on the lounge watching TV. For him to have committed this offence, he would have had to go into the bedroom while the other two were just outside the open bedroom window, inflict the blow causing death and come back out and resume his seat on the sofa without anybody hearing or noticing that this had happened.

Going back to the chronology, between 7.33 and7.49 pm, MW and DM left the unit to go to Kentucky Fried Chicken to get dinner, and that is the period when the victim was alone with the appellant in the unit. Your Honours have seen in the written submissions that this is where the appellant says that he went into the bedroom on the two occasions and interacted with the deceased. MW and DM come back at 7.49 pm and they see the appellant coming out of the victim’s bedroom at that point in time. They sit and eat their food. The mother does not go into the room at that time because she is told by the appellant that the child is okay. Shortly after, around 8 o’clock, they go and check on the child and she has already suffered the blow that leads to her death and she is then taken to hospital.

In our written submissions at paragraph 6 and 7, we set out the medical evidence. I do not propose to take you to the underlying evidence but merely to remind you about what was not in issue about the medical evidence, your Honours. That was that the victim’s death was caused by blunt force trauma to her abdomen which resulted in a 12‑centimetre tear of the mesentery:

causing rapid and torrential haemorrhage into the abdominal cavity.

Significantly:

This would have had the effect of causing acute hypovolaemic shock due to blood loss.

That would have started immediately on the infliction of the blow. It was an extraordinarily powerful blow to the abdomen. Dr Cala opined or observed that the extent of the trauma seen in this victim is:

seldom seen in paediatric cases, even . . . in motor vehicle trauma –

cases. Of course, that is the foundation of the submission of the prosecution at trial and in the appellate courts as to intent and what intent can be inferred from the nature of the injuries. Importantly, for your Honour’s consideration of the proviso, it was the concurring opinion of the expert witnesses who gave evidence that the child would have been immediately and severely incapacitated after the injuries were inflicted and she would not have appeared normal for any period of time after their infliction.

That, of course, is relevant to consideration of the appellant’s account of what happened that on the first occasion when he went into the child’s room, she had gotten out of bed and she was standing, fiddling with the doorknob. Dr Cala opined that it would have been highly unlikely that she would have been capable of getting out of bed, walking to the bedroom door, playing with the doorknob or standing at the door when the appellant answered it, had the blows been inflicted before that point in time.

If your Honours get to consideration of the proviso, if I could refer your Honours to the 16 points identified by the learned trial judge which are set out in the summing‑up at the core appeal book 36 to 38. I have already briefly gone to those. I will not go through them seriatim, your Honours, other than just to observe that the first four points go to the healthy condition of the deceased prior to 7.00 pm and the fact that she was “well‑nourished on autopsy”.

The fifth point is the one that I have already gone to, which is the relationship between DM and the deceased and the fact – the sixth point goes to the very, very short opportunity that DM actually had when he could have inflicted the blow causing death. The seventh point is that point about the proximity of the appellant and MW to the open window of the deceased’s room during that period. Your Honours, I have included in the book of further materials a floor plan of the unit which shows the layout of the patio and the bedroom.

The eighth point is the one that again goes to the lack of a tendency on the part of MW, the evidence that was “attentive and caring”. The ninth point is the point that refers to Dr Cala’s evidence, or that picks up on the expert evidence about the unlikelihood:

of the child coming to the door of her bedroom and standing there –

had the blows already been inflicted. The tenth point is clearly the most significant point, and that is the fact that only – I withdraw that – that the appellant was alone with the child for 12 to 15 minutes at around the time that the blow was inflicted. The eleventh point that he “was seen coming” out of her room “when MW and DM returned from the KFC”.

The remaining – 12 and 13 go to events – 12 is her presentation immediately after coming out of the bedroom. Point 13 is when she got to hospital and her poor presentation there. Point 14 is the nature of the expert evidence and, importantly, that there was no evidence of illness or malignancy. Your Honours may have gleaned that an issue in the trial was whether there was some previously undiagnosed predisposition of the child that would have led to her haemorrhaging in this way, but that was an issue that really fizzled out at trial.

Point 15 is the Dr Cala point, that she would have been immediately and severely incapacitated from the infliction of the blows, and would not have appeared normal for any period of time. Point 16, importantly, is the opinion of Dr Cala that the injuries were sustained after the child was put to bed, given the time of death and the results of the post‑mortem and, assuming that she was in the same condition when she was put to bed, that it happened after that.

As I have already addressed, the requisite intention for murder in this case, and intention to cause grievous bodily harm, we say, is readily established by the extreme nature of the injuries occasioned to this two‑and‑a‑half‑year‑old victim. Evidence of the extremely limited opportunity that MW and DM had to commit the offence, and the circumstances attending that opportunity – that there were people outside the open window, in relation to DM, and that in relation to MW, it was only a period of two minutes before they went to go to get the KFC – the suggestion that either of them entered the victim’s bedroom undetected by the other two people in that small unit and inflicted a fatal blow or blows on the victim without drawing the attention of the other people in the unit, we say, is so fanciful as to be incapable of raising a reasonable doubt in this Court as to the appellant’s guilt.

Just before I sit down, your Honours, I would like to point out that in the appellant’s outline, and also in my learned friend’s oral submissions this morning, my learned friends appeared to rely on the remarks on sentence as relevant to the disposition of the issues in this appeal. In my respectful submission, that is not a proper course of action for this Court to take. The question of admissibility and the application of the proviso are discrete to
any issue findings in the remarks on sentence. Your Honours, in our submission the consideration of the whole of the evidence by this Court would inevitably lead to the conclusion that the appellant’s denial of responsibility was so glaringly improbable on the facts of this case that it could not give rise to a reasonable doubt. Your Honours would be satisfied that no substantial miscarriage of justice has actually occurred. Those are the respondent’s submissions, unless I can be of further assistance, your Honours.

KIEFEL CJ: Thank you, Ms Dowling. Mr Glissan, anything in reply?

MR GLISSAN: Nothing in reply.

KIEFEL CJ: Thank you. The Court reserves its decision in this matter and adjourns to 9.30 am tomorrow, and otherwise to 10.00 am.

AT 12.30 PM THE MATTER WAS ADJOURNED