TL v. The Queen

Lower Court Judgment

19/10/2020 Supreme Court of New South Wales (Court of Criminal Appeal) (Hoeben CJ at CL, Adamson & Bellew JJ)

[2020] NSWCCA 265

Catchwords

Evidence – Tendency evidence – Proof of identity – Where appellant convicted of murder of partner's child – Where blunt force trauma to abdomen cause of death – Where, 10 days prior, child had suffered burns after appellant placed child in hot water – Where evidence of burns was admitted as tendency evidence pursuant to s 97 of Evidence Act 1995 (NSW) to prove appellant's tendency to "deliberately inflict physical harm on child" – Where appellant convicted and appealed against conviction on grounds including that tendency evidence should not have been admitted – Where appellant relied on statement in Hughes v The Queen (2017) 263 CLR 388 concerning requirement for "close similarity" between tendency alleged and offence charged – Where Court of Criminal Appeal held requirement for "close similarity" should arise when tendency evidence is only or predominant evidence that goes to identity – Whether, where tendency evidence is adduced to prove identity of offender for known offence, probative value of tendency evidence will depend upon close similarity between conduct evidencing tendency and offence – Proper approach to principle articulated in Hughes.