Tendency evidence: the importance of notice requirements and the threshold for significant probative value Ann Bonnor reports on TL v The King [2022] HCA 35; (2022) 96 ALJR 1072

Ann Bonnor

In TL v The King, the High Court clarified application of the majority’s observation in Hughes v The Queen (2017) 263 CLR 338 at [39], where it was stated that in criminal proceedings where tendency evidence is adduced to prove the identity of the offender for a known offence, the probative value of tendency evidence will almost certainly depend upon ‘close similarity’ between the conduct evidencing the tendency and the offence. The judgment contains important observations on what is required by s 97 of the Evidence Act 1995 (NSW) for the threshold of ‘significant probative value’, especially in a case such as TL where the identity of the perpetrator is not ‘at large’. In TL, the appellant was one of only three persons who had the opportunity to inflict the fatal injuries, and evidence pointed against the likelihood that either of the other two persons was perpetrator. It could, therefore, not be assumed that ‘close similarity’ between the conduct evidencing the tendency and the offence was required for the evidence to qualify as having ‘significant probative value’. The judgment comments upon matters of procedure where tendency evidence is sought to be relied upon, including the importance of adhering to the tendency particularised in a tendency notice or, if particulars are to be reformulated, the requirement for formal amendment, and also the circumstances which may call for separate tendency notices.


The appellant challenged admission at trial of tendency evidence in the Crown case against him. He contended that the Court of Criminal Appeal (CCA) was wrong to conclude that the requirement for close similarity (Hughes v The Queen (2017) 263 CLR 338 at 256 [39]), should only arise when the tendency evidence is the only or predominant evidence that goes to identity, and that a ‘class of exceptions’ exists where there is evidence that only limited persons had the opportunity to commit the offence. The appellant also challenged the CCA’s conclusion that the tendency evidence had ‘significant probative value’ as required by s 97(1)(b) of the Act. The High Court (Kiefel CJ, Gageler, Gordon, Steward and Gleeson JJ) determined that the CCA was correct to conclude that the disputed evidence was admissible, and dismissed the appeal.


TL was convicted of the murder of his stepdaughter, aged 2½ years, following a trial by jury in the Supreme Court of NSW. The victim died in the early hours of 21 April 2014 in Coffs Harbour Hospital as the result of blunt force trauma to her abdomen. She had been residing in a unit with her mother and the appellant, who were both present in the unit on the evening of 20 April 2014, as was the appellant’s 14-year-old nephew. Issues at trial included whether the prosecution had proved that the person who had inflicted the trauma was the appellant and that he intended to inflict grievous bodily harm. The appellant’s case was that he did not harm the victim, and that the prosecution could not exclude the reasonable possibility that she was killed by the mother or nephew. Evidence supported a finding that the appellant had significantly greater opportunity to inflict the injuries. The prosecution alleged that he did so when the victim was solely in his charge between about 7.33pm and 7.49pm on 20 April 2014, while the mother and nephew were out buying dinner. Before they went out, the victim had been put to bed in her bedroom. When they arrived home, they saw the appellant coming out of the victim’s bedroom. The mother decided to check on the victim towards the end of dinner, but as she got up to wash her hands, the appellant went into the victim’s bedroom and brought her into the bathroom, where the victim became ‘floppy’ and grey in colour. She was pronounced dead at 2.15am on 21 April 2014.

Forensic pathology evidence was adduced, to the effect that the victim’s injuries were occasioned sometime after the victim was put to bed by the mother and the appellant. The appellant gave evidence that while he was alone with the victim in the unit he heard her cry and the sound of the doorknob of her bedroom door, and found her standing at the door crying ‘like she needed to spew’. He said later she was making a panting noise and a weeping noise, however he closed the door and returned to the lounge room. The forensic pathologist said that if she had already sustained the injuries seen on autopsy, it was highly unlikely that she would have been capable of the actions described by the appellant.

On the basis of this evidence, the Crown Tendency evidence: the importance of notice requirements and the threshold for significant probative value contended that the injuries could only have been inflicted by the appellant. The appellant argued that it could not be excluded that the mother went into the bedroom at some point after returning from buying dinner. The prosecution sought to adduce two categories of tendency evidence of a tendency to act in a particular way, namely to ‘deliberately inflict physical harm on the child’. First, the Crown contended that 10 days before the death the appellant placed the victim in scalding hot water. The victim sustained first degree burns and one third degree burn while in his care, by coming into contact with hot water (burns evidence). A forensic physician gave evidence that it appeared the victim was forced to sit down in a bath of scalding water. The appellant objected to the evidence on the basis that the burns were accidentally inflicted.

The second category was three pieces of hearsay evidence of complaint (complaint evidence): by a relative who had seen a bruise on the victim’s right forearm, and the victim said the appellant did it; a text from the mother to the appellant stating ‘[the victim] just came in telling me you hurt her neck again [sad face]; and evidence by the victim’s grandmother that the appellant had punched her in the face.

The High Court

The CCA dismissed the appeal. In the High Court, the appellant contended that the CCA was wrong to conclude that the requirement for close similarity should only arise when the tendency evidence is the only or predominant evidence that goes to identity and that a ‘class of exceptions’ exists where there is evidence that only limited persons had the opportunity to commit the offence. The High Court observed that, as held in IMM v The Queen (2016) 247 CLR 300 at 313 [44], assessment of the probative value of evidence requires that its possible use be taken at its highest, which assumes that the evidence is reliable and credible. This assumption can only be displaced where the evidence could not be accepted by a rational jury: at [28].

To be admissible under s 97(1)(b) of the Evidence Act, the court must think that the evidence will have significant probative value, meaning that it ‘should make more likely, to a significant extent, the facts that make up the elements of the offence charged’; that is, be ‘important’ or ‘of consequence’ to assessment of the probability of a fact in issue.: at [28]

The text of s 97 does not require close similarity and universal rules are to be avoided: at [29]. However, other things being equal, evidence of a more generally expressed tendency is less likely to satisfy the threshold of ‘significant probative value’: at [29]. The specificity of the tendency has a direct impact on the strength of the inferential mode of reasoning; that is why tendency evidence must have significant probative value, because otherwise s 97 is reduced to relevance: at [29].

The observation in Hughes as to avgeneral requirement for ‘close similarity’ where identity is the relevant fact in issue should be understood as postulating a situation in which there is little or no other evidence of identity, and the identity of the perpetrator is ‘at large’: at [30]. In this case, however, the appellant was one of only three possible perpetrators, and evidence pointed against the mother or nephew being the perpetrator. In the face of this evidence, it could not be assumed that ‘close similarity’ was required to meet the threshold of significant probative value: at [30].

Reformulation of the tendency and formal requirements

In admitting the burns evidence, the trial judge foreshadowed a jury direction that the jury could not use the evidence unless satisfied beyond reasonable doubt that the appellant intended to cause the victim ‘serious harm’. In admitting the complaint evidence, the trial judge described the asserted tendency as the tendency to behave towards the victim in an ‘inappropriately physical and violent fashion’. The CCA also described the relevant tendency as one to ‘act violently towards [the victim]’. These descriptions differed from the asserted tendency in the notice, which was problematic. The asserted tendency was too general and did not necessarily involve violence. Reformulation of a tendency without providing a notice may render evidence inadmissible. The High Court noted that insufficient particularisation, subsequent reformulation absent formal amendment, the absence of a separate tendency notice for the complaint evidence, and resulting non-compliance with s 97(1)(a), should not be condoned: at [33].


The issue was whether the tendency evidence could rationally make it more likely, to a significant extent, that the appellant inflicted the blunt force trauma (or make it more likely, to a significant extent, that the mother and nephew did not inflict the trauma). That question required consideration of two interrelated but separate matters.

1. The extent to which the evidence supports the asserted tendency.

The appellant did not dispute that the evidence supported the asserted tendency and that the third-degree burn was evidence of the deliberate infliction of serious physical harm.

The appellant argued that the complaint evidence disclosed nothing about his state of mind. The Court found that this failed to take the complaint evidence at its highest: at [35]. Having regard to the short period in which the complaints were made (between about late March and 10 April 2014), the evidence was capable of supporting a conclusion that the appellant had a tendency to deliberately inflict serious physical harm on the victim.

2. The extent to which the asserted tendency makes more likely the fact or facts sought to be proved by the evidence

The appellant argued that the burns and complaint evidence lacked significant probative value because it did not exhibit ‘close similarity’ to the infliction of blunt force trauma.

The Court found that without the additional elements of violent conduct inflicting serious physical harm, it was doubtful that the evidence could have met the threshold of significant probative value. However, the appellant did not complain about the incorporation of those elements. When those aspects of the tendency evidence were recognised, and having regard to the other evidence of identity, the tendency was sufficiently striking that its existence was capable of being important to a conclusion that the appellant was the perpetrator and, accordingly, the evidence had the requisite significant probative value for admissibility: at [37].

First, the evidence suggested hostility on the part of the appellant towards the victim. Second, while noting caution, the tendency in relation to a very young and defenceless victim is abnormal. In order to conclude that the evidence had significant probative value, it was not necessary for the prosecution to neutralise or disprove the existence of the same tendency on the part of other possible perpetrators. Third, the probative value of the evidence was increased by the close proximity in time of all the relevant events: at [38].

The threshold of significant probative value was capable of being met without the close similarity insisted upon by the appellant. Apart from the burns and complaint evidence, there was strong evidence identifying the appellant as the perpetrator. BN

Ann Bonnor

Crown Prosecutors Chambers-Sydney